Evidence today is seemingly all electronic. No modern attorney can ignore the unique challenges posed by the digitization of the evidence-gathering process. (1) Consider some statistics, remarkable in their implications for corporate litigators: most companies store up to seventy percent of their records in electronic form; (2) large corporate computer networks store backup data measured in terabytes, or one million megabytes, with each terabyte equating to five hundred billion pages of typewritten text; (3) as much as fifty percent of all information generated by companies never gets printed in hard form; (4) and employees in the United States send more than twenty-five billion e-mail messages per day. (5)
Scholars and commentators have urged practitioners to face the realities of dealing with electronic evidence, cautioning that a familiarity with applicable rules and case law is essential for effective representation. (6) Although the Federal Rules of Civil Procedure largely apply to the discovery of electronic information, (7) they are incomplete as to several highly salient issues. (8) Nor is the case law fully satisfactory in providing practitioners with guidance in navigating through the complexities of electronic discovery. An unfortunate result of this lack of direction from Congress and the bench is the rising popularity of clawback and quick-peek agreements, (9) which may save lawyers time, but which may also raise a host of legal and ethical issues.
The pretrial process of privilege review now represents an increasingly weighty part of dealing with electronic evidence. Virtually all discovery now involves staggering volumes of electronic information; (10) attorneys must therefore be cognizant of the risks of unintentionally disclosing a privileged document to the opposing side. An attorney who negligently, or even innocently, allows privileged information to leak to opposing counsel may effect a waiver of his client's privilege. The Manual for Complex Litigation addresses the laborious nature of modern document production and raises a concern shared by practitioners nationwide:
Broad database searches may be necessary, requiring safeguards against exposing confidential or irrelevant data to the opponent's scrutiny. A responding party's screening of vast quantities of unorganized computer data for privilege prior to production can be particularly onerous in those jurisdictions in which inadvertent production of privileged data may constitute a waiver of privilege as to a particular item of information, items related to the relevant issue, or the entire data collection. Fear of the consequences of inadvertent waiver may add cost and delay to the discovery process for all parties. (11) The California district judge who authored the majority opinion in United States ex rel. Bagley v. TRW, Inc. (12) voiced a similar grievance with the rule that inadvertent disclosure of a privileged document may result in waiver. He lamented that a strict approach to waiver may lead to "socially wasteful behavior, such as the adoption of elaborate and expensive precautions to avoid the inadvertent production of privileged documents, the cost of which may far exceed the social cost of alternative ways of solving the problem." (13) The delay and expense associated with adopting a hyper-careful approach to privilege review, the court reasoned, may be compounded by the necessity of using not only teams of partners and associates to screen for privilege, but also using paralegals and law clerks. (14)
Many lawyers, frustrated with the delays and risks associated with privilege reviews in the electronic age, have taken measures designed to save valuable time and to protect themselves against the consequences of privilege waiver. Parties are increasingly entering into clawback and quick-peek agreements, (15) which denecessitate a traditional privilege review process. (16)
In a clawback arrangement, both parties to a dispute agree in writing that inadvertent production of privileged materials will not automatically constitute a waiver of privilege. (17) If the producing party realizes the disclosure in a reasonable time, he can request the document's return, or "claw it back," and the other party must comply. (18) The requesting party is presumptively barred from using the privileged document to further his client's case. (19)
Instead of authorizing a less thorough review, a quick-peek agreement altogether eliminates the need for an initial privilege review. In this type of arrangement, the requesting party is allowed to see his opponent's entire data set before production. (20) The requester identifies relevant information from his opponent's mass of information. (21) The producing party then extracts privileged information from the now smaller set and turns over his responsive documents and a privilege log. (22) As in a clawback agreement, a quick-peek agreement includes a provision stipulating that production of privileged documents does not waive any privileges. (23) Ken Withers of the Federal Judicial Center notes that, as compared with a clawback, a quick-peek agreement "requires an even higher level of mutual trust and respect between counsel." (24)
Arguments in favor of clawback and quick-peek agreements emphasize their value in shielding lawyers from the oft-harsh consequences of unintentionally disclosing a privileged document during discovery--a practice not uncommon in complex litigation. (25) In response to concerns such as those expressed by the judge in Bagley, the Civil Rules Advisory Committee touts that these agreements "can facilitate prompt and economical discovery by reducing delay before the discovering party obtains access to documents, and reducing the cost and burden of review by the producing party." (26) Professor Rick Marcus offers a utilitarian justification for quick-peek agreements:
Because document requests are often very broad, and the responsive material is therefore often of no real interest to the party seeking production, undertaking the laborious task of reviewing all this material before the other side gets to look at it is highly wasteful if the other side then says it is really interested in only 10% of the material. Wouldn't it be more sensible to postpone the privilege review until the 10% had been identified? That could save the producing party money, and save the party seeking discovery time. (27) If clawback and quick-peek agreements have the potential to make lawyers' discovery protocols easier and more cost-effective, why does the Sedona Conference admonish that "there are a host of risks and problems that make [these types of] productions impracticable and, for most cases, ill-advised?" (28) This Note will examine why these concededly efficient agreements serve to undermine lawyer professionalism and the common law foundations of privilege jurisprudence. In light of proposed amendments to the Federal Rules of Civil Procedure, which would endorse the formation of clawbacks and quick-peeks, this Note will explain why these two mechanisms, and their codification in the Rules, raise serious issues with respect to common law privilege waiver, ethical duties of lawyers, third-party dangers of entering into a privilege waiver agreement, and judicial authority to modify substantive privilege doctrine.
To provide a backdrop for later analyses of the deficiencies of clawbacks and quick-peeks, Part I will discuss the proposed amendments to the Federal Rules and their formal recognition of the validity of these agreements. Part II, in arguing that clawbacks and quick-peeks defy the common law, will explore various jurisdictions' approaches to privilege waiver and highlight the majority consensus on the importance of thorough privilege reviews. Part III will then discuss the implications of clawback and quickpeek agreements for attorneys' ethical duties of competence and confidentiality. Part IV will address commentators' concerns about the effects of clawbacks or quick-peeks on third parties and in subsequent litigation. Emphasizing courts' lack of authority to give effect to parties' privilege waiver agreements, Part V will question whether the federal judiciary has the power to modify substantive privilege law under the Rules Enabling Act. Finally, Part VI will present solutions for practitioners fearful of inadvertent disclosure that avoid the need to enter into a clawback or quick-peek agreement and better comport with lawyers' obligation of zealous representation.
The Note will conclude by concurring with the Sedona Conference's ominous assessment of clawback and quick-peek agreements: because these devices run contrary to the common law, pose thorny ethical dilemmas, and risk losing their force with other parties or in other fora, they should not substitute for a traditional privilege review even if ultimately condoned in the Federal Rules.
PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE
The Civil Rules Advisory Committee has come to the stark realization that the Rules need updating to deal with the complexities of electronic discovery. Some of the proposed revisions have generated little comment and may pass through the Supreme Court without controversy. Others may continue to face formidable opposition. Given the authority and ethical issues raised by formally sanctioning clawbacks and quick-peeks, proposed Rule 26 and its related provisions hopefully will remain a source of vigorous debate in the legal community.
The Advisory Committee has conducted various studies and hosted a number of conferences on the idea of amending the Federal Rules to adapt to the electronically sophisticated litigation climate. (29) By 2002, local district and state courts had begun adopting their own electronic discovery rules, the American Bar Association (ABA) and the Sedona Conference had distributed best practices manuals, the Manual for Complex Litigation...