E-Discovery Update: Balancing Costs With Desire To Not Produce Irrelevant And Potentially Privileged Documents

Often in litigation, parties faced with overbroad discovery requests and large amounts of data are tempted to produce everything that hits on search terms to the other side without looking at it, or after performing minimal searches. The idea is that this will avoid discovery battles, shift the costs of the review to the other side and bury them with data. Opposing counsel will be hard-pressed to complain, since they asked for it. Parties in this situation often consider "quick peek" or "clawback" agreements to avoid waiver of privilege. See Fed. R. Civ. P. 26(b)(2) advisory committee's note, 2006 amendments. The quick peek process involves one party making certain requested material available to the requesting party and allowing the requesting party to review all the data within a set period of time and select the documents to be formally produced. See id. The parties agree that any privilege in this set of documents is not subject to waiver. The producing party