While Federal Rule of Evidence 502 allows for quick peek agreements as an alternative to clawback agreements, parties rarely reach an agreement that allows a requesting party to review a complete data set to determine which documents it decides are responsive. This is what makes the decision of the United States Federal Court of Claims in Fairholme Funds, Inc. v. United States, No. 13-465, so interesting. Judge Margaret M. Sweeney granted the plaintiff's motion to compel 1500 documents pursuant to the FRE 502(d) quick peek procedure.
The defendants in this case argued that the purpose of the procedure is to lessen a producing party's burden to review ESI for privileged information. They cited to The Sedona Conference's Commentary on Protection of Privileged ESI, as support for the position that Rule 502 cannot be used to compel the production of privileged information and ring a bell that cannot be un-rung.
The court nevertheless decided that it should grant the plaintiffs' request to review the documents withheld on the basis of deliberative process and bank examination privilege, even if the defendant did not consent, and had already conducted a comprehensive review. In making its decision, the court cited the following factors:
1. defendant's piecemeal production
2. a trial court's board discretion to issue discovery orders
3. a quick peek review would avoid a motion by the plaintiffs to conduct an in camera review which would be burdensome to the court.
4. a Rule 502(d) protective order provides greater protections than a Rule 26(c) protective order.
5. only individuals subject to the protective order will have access to the documents.
Judge Sweeney concluded that, "the court's use of the quick peek procedure in the case at bar is not motivated by a need to (1) protect inadvertently disclosed materials, (2) address the high cost of discovery in cases involving large quantities of ESI, or (3) punish defendant. The court's sole purpose in utilizing the procedure is to bring jurisdictional discovery to an end so that the case may move forward. Given the court's wide discretion to manage discovery pursuant to RCFC 26, and given the mutually agreed-to protective order already entered in this case, the court's use of the quick peek procedure is eminently appropriate."