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"Quick peek" agreements are agreements to speed up productions and reduce costs by agreeing (1) to let the requesting party take a "quick peek" at ESI without the producing party undertaking the time and expense in advance to review the entire population of ESI to eliminate non-responsive and protected information; (2) during the course of its "quick peek," the requesting party then flags the particular ESI records it wants the producing party to formally produce; and (3) the producing party then limits its responsiveness and privilege review to the set of flagged documents, actually producing only those that are responsive and not privileged, with the requesting party agreeing that it will return, not use and not claim waiver with respect to any non-responsive or privileged information that it saw during the "quick peek."
Most companies, however, likely will be unwilling to accept the central premise of a "quick peek" agreement which involves turning over ESI without any advance review. Even if privileged materials are returned and not used, most companies will not want the opposing side to ever see such material in the first place. Clawback agreements are agreements to return unwittingly produced protected materials without claiming waiver. An important risk with quick peek and clawback agreements is that third parties might claim that any non-waiver agreement does not bind them and they are free to claim that a waiver occurred.