Plaintiffs Waived Their Assertions of Privilege, Court Rules: EDiscovery Case Law

Key Takeaways

• Judge Sippel applied Gray v. Bicknell five‑factor test.
• Plaintiffs failed to act promptly after October 2025 notice.
• Court found waiver of privilege for all three documents.
• No attorney‑fees awarded despite finding of waiver.

Pulse Analysis

In eDiscovery, privilege waivers hinge on both the scope of the disclosure and the timeliness of a party’s response. Judge Sippel’s opinion leans heavily on the Gray v. Bicknell five‑factor analysis, especially the promptness and interests‑of‑justice factors. By highlighting that plaintiffs waited four months after being alerted to the misuse of privileged material, the court reinforced that delayed claw‑back demands can erode privilege protections, even when the initial production was ordered by the court.

The decision sends a clear signal to counsel handling massive document productions—often numbering in the tens of thousands—that robust safeguards and immediate remedial steps are essential. Courts are increasingly scrutinizing the reasonableness of precautions and the speed of corrective actions, especially when privileged information surfaces in other litigation. Failure to demonstrate diligent oversight can lead to a finding of waiver, allowing the opposing party to leverage the disclosed content without penalty.

Practically, firms should implement real‑time privilege review workflows, maintain detailed logs of disclosures, and issue claw‑back letters at the first sign of inadvertent release. Training staff on the five‑factor test and establishing clear escalation protocols can mitigate the risk of waiver. As discovery technology evolves, the emphasis on prompt, documented responses will likely become a standard expectation across federal courts, shaping how legal teams manage privilege in high‑volume eDiscovery projects.