Protecting Privilege in eDiscovery: How to Avoid Costly Mistakes and Preserve Confidentiality

03 July 2025 by Anith eDiscovery privilege

Takeaway: In the digital age of litigation, protecting privilege in eDiscovery isn’t optional; it’s critical. A single misstep in managing privileged information can result in a waiver of privilege, jeopardizing attorney-client communications, legal strategy, and other sensitive matters. This guide explains what privilege in eDiscovery entails, the types of privilege to be aware of, and how smart workflows can help prevent inadvertent disclosure.

What is privilege in eDiscovery?

In the context of electronic discovery, privilege refers to specific categories of confidential communications that are legally protected from disclosure during litigation. These privileged communications must be identified and withheld from production to opposing parties.

What constitutes privilege in eDiscovery?

The main categories of privilege to be aware of are:

Attorney-client privilege: Protects confidential communications between lawyers and their clients related to legal advice.
Work product privilege: Shields materials prepared by attorneys or their agents in anticipation of litigation.
Privacy law privilege: Protects documents that are “confidential” as per data privacy laws
Trade secrets privilege: Protects documents that have Intellectual Property (IP) information, such as formulas, product designs, patent information, etc.

These privileges apply regardless of format: emails, texts, PDFs, and cloud documents, which is why managing privilege in eDiscovery is vital.

Why is protecting privilege so important?

Failing to protect privileged documents can:

Result in a permanent waiver of privilege
Expose sensitive legal strategy or admissions
Lead to sanctions, ethics violations, or even malpractice claims

Managing privilege effectively involves reducing legal risk while maintaining compliance with legal obligations.

Laws and rules that govern privilege in eDiscovery

Several rules govern the handling of privilege in U.S. courts. These include both the Federal Rules of Evidence and the Federal Rules of Civil Procedure, which lay out how privilege should be asserted, what happens in the case of inadvertent disclosure, and how parties can proactively protect themselves:

1. Federal Rule of Evidence 502

FRE 502(b): Offers protection if disclosure was inadvertent, and you took reasonable steps to prevent it and to rectify the error.
FRE 502(d): Allows courts to issue an order stating that disclosure does not result in waiver, even in other proceedings. Using FRE 502(d) to preserve privilege is one of the most effective defenses against waiver of privilege.

2. Federal Rules of Civil Procedure 26(b)(5)

FRCP 26(b)(5)(A): When a party withholds information on the grounds of privilege, they must notify other parties by expressly making the claim and describing the nature of the withheld material in a way that does not reveal the privileged content but allows the other side to assess the claim.
FRCP 26(b)(5)(B): If privileged or protected information is disclosed, the disclosing party may notify the receiving party, who must then return, sequester, or destroy the information until the privilege claim is resolved.

What are the limits to privilege in law?

The attorney-client privilege protects the communication between a lawyer and their client, but it is not all-encompassing; it has certain limits and exceptions. Additionally, the client can choose to either invoke the privilege or waive it.

For attorney-client privilege to apply, the conversation must be confidential and involve the exchange of legal advice. If a third party is present during the exchange, or if the client intends for the lawyer to pass the information along to others, there’s no privilege to protect. Other things that are not covered by attorney-client privilege include business advice and any pre-existing documents sent to the lawyer. Additionally, the privilege completely disappears if the communication involves planning a crime or fraud.

When is privilege waived in electronic discovery?

A waiver occurs when someone knowingly gives up the right to keep certain communications confidential. In legal terms, that means you lose the protection of privilege if you share privileged material with someone who shouldn’t see it. Courts take the privilege waiver seriously. The rule is usually strict: if you disclose confidential attorney-client or work product communications to a third party, whether intentionally or unintentionally, you may have waived your right to keep that information protected.

Once a waiver happens, the disclosed content may be fair game in discovery and even admissible at trial. You also lose the ability to block further questions or the production of related documents based on privilege.

Here are a few key points about how a privilege waiver works:

Only privileged material counts: If the document you disclosed wasn’t privileged to begin with, you haven’t waived anything.
Just staying silent doesn’t waive privilege: You don’t lose privilege just by failing to assert it unless you also hand over the material.
Filing or defending a lawsuit doesn’t equal waiver: Taking legal action doesn’t strip away privilege unless protected information is disclosed.

What can cause the unintentional waiver of privilege?

At times, privilege can be waived due to the failure to protect privileged information. Some situations that could lead to an unintentional waiver or privilege are:

Inadvertent Disclosure: Producing a privileged document by mistake. Example: An email containing a legal strategy is flagged as privileged and is omitted from production. However, this email is also part of an email thread that contains other information relevant to the case and was not redacted by mistake during the production of the email thread; therefore, this constitutes an inadvertent disclosure.
Failure to preserve privilege: Sharing privileged material outside of the case. Example: Suppose while discussing a business matter with a third party not involved in the case, some privileged portions of documents from the case are shown; this could result in a privilege waiver even though the third party has no relevance to the case.
Ineffective privilege review: Poor workflows and lack of oversight during document production. Example: In Datel Holdings Ltd. v. Microsoft Corp. (2011), the court found that failure to take reasonable steps in the privilege review process resulted in waiver despite claims of inadvertent disclosure.

Bottom line: If you voluntarily share privileged material or let it slip due to poor controls, you’ve probably lost the right to keep it private. That’s why strong workflows and awareness matter so much.

Best practices for privilege review workflows

Setting up strong privilege review workflows is your best shot at avoiding mistakes. Here’s how to get it right:

Utilize eDiscovery software: Use eDiscovery tools like GoldFynch to process your documents
Start early: Tag documents for privilege from the get-go. Don’t wait until production deadlines loom.
Use keyword lists: Create and refine lists of legal terms, attorney names, and law firm domains to catch likely privileged content.
Build a privilege log: Keep a running list of withheld documents, providing clear and consistent explanations.
Use consistent tagging: Tag documents by type, like “attorney-client” or “work product”, to avoid confusion.
Redact strategically: When only part of a document is privileged, redact that portion instead of withholding the entire file.
Double-check everything: Run quality control checks with fresh eyes before production. Catching one missed doc can save you a world of trouble.
Train your reviewers: Make sure everyone knows what to look for. Privilege review isn’t just about finding keywords; it’s about context.

These best practices for privilege review workflows help teams stay organized, consistent, and defensible.

How GoldFynch helps protect privilege in eDiscovery

GoldFynch is a cloud-native eDiscovery platform designed for small law firms, in-house legal teams, and boutique litigation practices.

Here’s how GoldFynch helps with protecting privilege in eDiscovery:

Privilege tagging: Using GoldFynch’s tagging system, you can flag documents with potential attorney-client privilege or work product privilege and add appropriate notes to them.
Easy privilege log generation: Create a privilege log with just a few clicks.
Simple redactions: Easily redact portions of documents instead of withholding entire documents.
Protects redactions and privileges during productions: GoldFynch’s production system ensures that redacted files and their ancestors are not produced natively, and privileged files that have been inadvertently included are flagged so that you can omit them from the production.

With GoldFynch, you get scalable, reliable privilege management that keeps your team compliant, efficient, and protected.

In today’s fast-paced legal world, it’s essential to keep privilege front and center.

As missing a privileged document can cost you dearly. Knowing how to protect attorney-client privilege in eDiscovery, setting up smart workflows, and using tools like GoldFynch can help you stay in control.

Make privilege protection part of your game plan, not an afterthought.

Need eDiscovery software to help protect privilege? Try GoldFynch

GoldFynch is an affordable, streamlined, secure eDiscovery service for small to mid-size organizations that simplifies handling privileged information. You can sign up for a free trial in seconds without a credit card.

It costs just $27 a month for a 3 GB case: That is significantly less than most comparable software. With GoldFynch, you know what you’re paying for exactly – its pricing is simple and readily available on the website.
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It’s simple to use. Many eDiscovery applications take hours to master. GoldFynch takes minutes. It handles a lot of complex processing in the background, but what you see is minimal and intuitive. Just drag-and-drop your files into GoldFynch and you’re good to go. Plus, it’s designed, developed, and run by the same team. So you get prompt and reliable tech support.
It keeps you flexible. To build a defensible case, you need to be able to add and delete files freely. Many applications charge to process each file you upload, so you’ll be reluctant to let your case organically shrink and grow. And this stifles you. With GoldFynch, you get unlimited processing for free. So, on a 3 GB plan, you could add and delete 5 GB of data at no extra cost – as long as there’s only 3GB in your case at any point. And if you do cross 3GB, your plan upgrades automatically and you’ll be charged for only the time spent on each plan. That’s the beauty of prorated pricing.
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