Instead, the defendants relied on keyword research technology to produce a number of non-privileged responsive documents. Finding that their productions contained privileged communications, the defendants sent the applicants an amended production and a protocol of privileges, as well as a request for restitution of the earlier productions. The complainants refused to return the previous productions. At the defendant`s request to order the return of privileged documents, the court sided with the applicants. In deciding on the application, the Tribunal applied the famous five-factor test for accidental production of the federal law. The court only had to consider the first factor, „the relevance of the precautions taken“, to reject the defendants` request. The „volume“ of production significantly increased the likelihood of accidental production and „indicated the need for more than minimal effort“ to protect the privileged communication of the accused. The court found that the defendant`s total reliance on technology was inappropriate in the current circumstances. The court quickly found that it did not always accept a clear rule that required a verification of privileges. He concluded that there might be circumstances in which accelerated discovery would preclude verification of privileges and suggested that, in such cases, „Quick Peek“ or „clawback“ agreements would be appropriate. The parties to the lawsuit in two high-level tax controversies have now entered into quick-peek agreements in order to resolve disputes over the discovery of privileges in an efficient and inexpensive manner.

In United States v. Microsoft, No. 2:15-cv-00102 (WD WA), the parties agreed to allow government counsel to conduct a „temporary“ audit of certain documents subject to Microsoft`s privileges as part of an ongoing investigation into the company`s transfer pricing practices. In return, the United States and the Internal Revenue Service (IRS) agreed that the creation of these documents would not lead to an automatic waiver of the subject matter or the surrender of privilege rights. It is likely that the government`s „quick look“ at these potentially privileged documents will reduce the number of documents for which the court will be asked to make privilege decisions and speed up the decision on the enforcement of subpoenas. Similarly, guiding LLC, F.K.A., Guidant Corporation and subsidiaries and al.v. Commissioner, a U.S. financial trial before Judge David Laro, the court ordered a brief information procedure on the dispute between the parties regarding the privileged status of a large number of documents that were identified in the IRS`s privilege protocols as protected by the government`s Liberal process privilege. The order specifically excluded documents for which rights are invoked in respect of solicitors` privilege and the protection of work products. Justice Laro noted that the resolution of this dispute due to the approaching trial date was a time issue and accepted the parties` request that the Tribunal make such an order.

Under the terms of the order, the IRS is required to provide all contentious documents to Guidant`s attorney for verification.. . . .