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Editor Bio
Gregg Mayer is a journalist and lawyer with a keen interest in the rapidly evolving world of e-Discovery. Gregg has published numerous articles, including writing for law journals and the American Bar Association. Gregg served as editor-in-chief of the Mississippi Law Journal. Before practicing law, Gregg worked as a newspaper reporter for six years.
Without Effective Email Archiving, ‘Clawback’ and ‘Quick Peek’ Agreements May Be Only Options
Posted by Gregg Mayer on Wednesday, February 6th, 2008
If you don’t have an archiving system that can quickly and effectively retrieve specific, relevant email and other ESI, then you may be looking at having to open up all of your ESI – confidential material and all. Under the federal rules, “clawback” and “quick peek” arrangements are two possible ways to deal with e-Discovery in litigation. CIOs should know a little something about them because these concepts evolved due to the proliferation of ESI.
The better you understand your ESI archiving, and the better your archiving system, then the better choices you and your lawyers can make when it comes to deciding how to deal with e-Discovery.
Under a “clawback” agreement, you opt to give the other side all of you ESI, and then you “clawback” any inadvertently disclosed privileged material that you shouldn’t have given them.
Under a “quick peek” arrangement, both sides agree that the party requesting the ESI may hire a technology expert to access the other party’s computer system. The expert extracts all of the ESI and turns it over to the party who requested it. That party then reviews the ESI, pulls out what it wants, and then shows it to the producing party to see if anything in there might be privileged. If it is privileged, it cannot be used.
As you might imagine, neither of these arrangements are exactly ideal. In both cases, there is a risk confidential and privileged information may be disclosed to the other side. Even if the other party cannot use it, the cat is still out of the bag.
Your lawyer will want to know from you how your ESI is stored. Whether the “clawback” or “quick peek” is appropriate will depend on how well information is archived and how quickly and specifically it can be retrieved. The better your email archiving system, the better your choices.
Here’s a discussion of clawback and quick peeks.
Posted in: Electronically Stored Information | Federal Rules of Civil Procedure
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