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Electronic discovery was originally viewed as a much more efficient way of collecting documents in the course of discovery. That ease of storage, search, and retrieval, however, led to the exponential growth of the volume of data being collected and reviewed. This has led to more burdens and more discovery disputes. Grappling with the associated delays and discovery motions, courts have fashioned more creative discovery processes. One such mechanism is the “quick-peek” agreement. Viewed as a mechanism for parties to exchange data quickly without the fear of waiving privilege or its subject matter, courts started to consider the mandatory use of the quick-peek to streamline discovery in 2014.

On Oct. 29, 2014, Judge John T. Copenhaver of the Southern District of West Virginia issued an interesting order that set forth the court’s authority to order the “quick-peek” of privileged documents over a party’s objection under Federal Rule of Evidence (FRE) 502. Good v. Am. Water Works Co., No. 2:14-01374, 2014 WL 5486827 (S.D. W.Va. Oct. 29, 2014). In Good, the parties had agreed to use technology assisted review to outline the scope of data to be produced. Id. at 2. Plaintiffs requested a quick-peek order to prevent defendants from engaging in a privilege review prior to production. Id. at 1. The court found, however, that a quick-peek order was not yet necessary—that defendants had not shown any signs of delaying discovery as a result of their privilege review, and there was not yet a dispute over documents being withheld as privileged. Id. at 3. In its dicta, however, the Good court emphasized the value of a quick-peek order as a means to hasten discovery, expressly noting it was within the court’s inherent power to enter such an order even over objection of a party. Id.

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