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

Last Updated: September 7 2015
Article by Jill Crawley Griset and Chelli D. Robinson

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 then screens the more limited set of documents chosen for privilege and produces the documents in the usual fashion. See id. A clawback agreement is an agreement that if any privileged documents are produced, the producing party may "claw" them back without waiving the privilege.

Problems occur, however, when one party tries to force an unwilling opposing party to produce large volumes of documents that have not been reviewed prior to production by arguing that there is minimal burden in such a production, because the documents need not be reviewed if a "quick peek" or "clawback" agreement is in place. Many companies do not want to agree to such an arrangement, and should not agree to it, as privileged documents usually cannot all be caught by searches and once they are released, the bell cannot be unrung. Further, in today's environment of heightened data security, it is dangerous for companies to release large volumes of data to parties who may not have stringent security procedures and where many of the documents may include personal information such as social security numbers and proprietary information. Fortunately, courts have been averse to forcing this type of arrangement on an unwilling party. See Good v. Am. Water Works Co., Inc., 2:14-01374, 2014 WL 5486827, *1, 3 (S.D. W. Va. Oct. 29, 2014) (refusing to force producing party to forego an eyes-on-document review in the interest of speed and allowing producing party's more "cautious approach" to discovery); and Mgmt. Comp. Group Lee, Inc. v. Okla. State Univ., No. Civ. 11-967, 2011 WL 5326262, *4 n.6 (W.D. Okla. Nov. 3, 2011) (declining to impose "quick peek" provision "on an unwilling party").

A long-recognized principle of discovery is that it is the producing party's right to determine what is responsive to the litigation out of its own documents. See Fed. Deposit Ins. Corp. v. Bowden, No. CV 413-245, 2014 WL 2548137, *8 (S.D. Ga. June 6, 2014) (noting that "[w]hile the [plaintiff] must respond to defendants' discovery and inspect its own records to do so, it need produce only those documents that are responsive to the opposing party's requests") (citations and quotations omitted); In re eBay Seller Antitrust Litig., No. C07-01882, 2010 WL 2836815, *4 (N.D. Cal. July 19, 2010) (refusing to allow receiving party to identify relevant documents out of a set of documents produced by eBay in a separate action and noting that this would be an "abnormal process that reversed the role of who searches for and identifies relevant material"); and McCormick v. City of Lawrence, Kan., No. 02-2135, 2007 WL 38400, *4 (D. Kan. Jan. 5, 2007) (refusing to allow receiving party to "serve as the filter for determining the relevant footage" out of producing party's voluminous video recordings).

Indeed, the requesting party has no right to possess documents that are not relevant to its requests for production. See Gen. Elec. Co. v. United States, 3:14 cv 00190, 2015 WL 4478294, *2-3 (D. Conn. July 22, 2015) (finding that receiving party "has no right to over-production of materials beyond the scope of its subpoenas" and noting that a low percentage of documents produced out of the total documents collected was not sufficient evidence to infer that a party "failed to produce responsive documents").

Some cases are more troubling, however. See Stambler v. Amazon.com, Inc., No. 2:09 cv 310, 2011 WL 10538688, *10-11 (E.D. Tex. May 23, 2011). In Stambler, the parties initially agreed to search terms, however the terms returned more data than anticipated by the defendants. Id. at *9. The court offered the defendants the option of reviewing all of the documents for relevancy and privilege or simply running potentially privileged terms across the document set and producing everything else. Id. at *10-11 (noting the parties had an adequate clawback provision for this type of review). The court reasoned that because the defendants agreed to search terms they were in a position no worse than if they ultimately had decided to review the documents, and also noted that the defendants had expressed no concern of confidential or proprietary information in the data. Id. at *10. The court stated that the plaintiff now "bears some of the risk that the agreed upon search terms are overbroad, thereby burdening Plaintiff with unwarranted search and review costs." Id. at *11. The court stated, "[i]f, in light of this ruling, the parties wish to confer and revise their agreed upon search terms to reduce the burden on all parties, presumably they are free to do so." Id.; see also Murphy Oil USA, Inc. v. Fluor Daniel, Inc., No. Civ. 99-3564, 2002 WL 246439, *9-10 (E.D. La. Feb. 19, 2002) (providing option for producing party to review documents itself or provide backup tapes to receiving party for initial responsiveness review), disagreed with by Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 318 n.48 (S.D.N.Y. 2003) (suggesting that it is improper to assume that "an undue burden or expense may arise simply because electronic evidence is involved"). Parties should be very careful, when agreeing upon search terms or search parameters to include a caveat that if the terms will retrieve an unduly burdensome number of hits, the producing party reserves the right to amend the terms to a more reasonable set of terms.

Producing large volumes of documents without reviewing them and subject to a "quick peek" or "clawback" agreement is not advisable in most cases. And, fortunately, many courts will not force this type of agreement on a producing party without a finding of prior discovery wrongdoing. Where the quick peek approach is a genuine option, counsel should be well-educated on what type of confidential and proprietary information may be disclosed through the process. If a party wishes to enter into a "quick peek" or "clawback" arrangement, it is advisable to obtain a court ordered stipulation so that the Order will be enforceable as against others who are not parties to the agreement and so that other courts will honor the non-waiver agreement. See Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228, 235 n.10 (D. Md. 2005); and Fed. R. Evid. 502(d).

Likewise, before the receiving party agrees to essentially take the burden of discovery costs on itself, counsel should have good reason to believe the opposing party is not capable of effectively evaluating relevancy and producing the same. Ultimately, it is still the producing party's right to determine which of its own documents are relevant to the dispute.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.