Kansas Case Casts Doubt Rule 502

Just when you thought it was safe to enter into "quick peek" and "clawback" agreements, along comes Spieker v. Quest Cherokee, LLC. The decision's comments concerning the application of recently enacted Federal Rule of Evidence 502 seem entirely at odds with the purpose and history behind the adoption of Rule 502. One can only hope other courts adopt a more limited reading of Spieker, No. 07-1225-EFM, 2009 WL 2168892 (D. Kan. July 21, 2009).

A major goal of the 2006 amendments to Rules 16 and 26 of the Federal Rules of Civil Procedure and new Federal Rule of Evidence 502 was to reduce the cost of electronic discovery by minimizing pre-production privilege review of electronically stored information through the endorsement of "quick peek"[FOOTNOTE 1] and "clawback"[FOOTNOTE 2] agreements in those cases where the parties jointly agreed to such procedures.

However, Spieker demonstrates that not all courts will interpret these provisions in light of the stated goals of the new rules, raising the risk that courts will decline to approve orders including "quick peek" and "clawback" agreements unless the parties can first establish they have undertaken a reasonable pre-production privilege review.

Spieker was a dispute over oil and gas royalties allegedly owed by Quest Cherokee LLC -- the defendant lessee -- to Spieker and others -- the plaintiff lessors -- and allegedly to other similarly situated lessors throughout Kansas' Cherokee Basin region. In pressing their claims, plaintiffs sought to certify the case as a class action under Federal Rules of Civil Procedure 23(a) and requested discovery of documents and ESI to bolster the claims

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Source: law.com
By: H. Christopher Boehning and Daniel J. Toal