Antitrust Law Daily Wrap Up, ANTITRUST—W.D. Wash.: Amazon falters on most document privilege assertions in consumer ‘Most Favored Nation’ matter, (Mar 28, 2025)

By Justin Marcus Smith, J.D.

The court signaled apparent displeasure by warning it might assign a private special master and impose cost shifting if the parties cannot resolve future discovery disputes on their own.

An in camera review of documents disputed for production in discovery showed that defendant Amazon.com, Inc. (Amazon) improperly designated operational, business, and strategic documents as attorney-client communications or attorney-work product, held the federal district court in Seattle. In many instances, in-house attorneys were simply copied on emails. Even where an in-house attorney actively participated, most of the content was about public relations, technical operational issues, strategic goals, customer expectations, or regulatory demands, not requests for legal advice. The court ordered Amazon to produce most of the documents the court reviewed in camera. The court admonished that it might assign a special master from private practice to resolve future disputes with assignment of costs, essentially per the English rule, against the parties in proportion to their success or failure on the merits of their claims of privilege and work-product protection (De Coster v. Amazon.Com, Inc., No. 2:22-cv-00965-JHC (W.D. Wash. Mar. 25, 2025)).

Background. In early 2023, the federal district court in Seattle heldWilson consumers could not bring a cause of action against Amazon.com, Inc., for per se violation of Section 1 of the Sherman Act in connection with Amazon’s alleged “Most Favored Nation” (MFN) pricing policies; however, the consumers’ other Sherman Act claims in connection with the same policies survived.

Meanwhile, a second group of consumers, the DeCoster consumers asserted MFN claims in the same federal district court on a similar theory that Amazon maintained a price floor. The court similarly held the DeCoster consumers could not bring a cause of action for per se violation of Section 1 of the Sherman Act on alleged Amazon MFN pricing policies. However, in the same ruling the court declined to dismiss the consumers’ other Sherman Act claims in connection with alleged MFN policies.

After the Wilson consumers filed a Third Amended Complaint (TAC) and the DeCoster consumers filed a Second Consolidated Amended Complaint (SCAC), Amazon filed a fourth motion to dismiss under Fed. R. Civ. P. 12(b)(6). The court held both sets of consumers could proceed with their amended Sherman Act Section 1 rule of reason and Section 2 monopolization claims against Amazon.

More recently, the court grappled with a discovery dispute between the parties. The consumers moved to compel production of all documents involving what they said were unsubstantiated Amazon privilege claims. They asserted Amazon’s privilege logs were deficient and the company had improperly withheld hundreds of thousands of documents as privileged. Amazon responded it would complete its review of the challenged privilege log entries by mid-October 2024. The court dismissed the consumers’ claims as premature and denied their motion to compel without prejudice.

By November 2024, Amazon had not completed its privilege re-review. The court held a hearing on outstanding discovery issues. The court ordered Amazon to complete its re-review and to provide a final privilege log to the consumers by February 25, 2025. The court permitted the consumers to identify up to 100 documents from Amazon’s final privilege log for in camera review.

Amazon identified four types of documents for which it claimed attorney-client privilege or work-product protection:

1. Communications that included direct provision or request for legal advice;

2. Communications that conveyed or requested legal advice;

3. Communications with the primary purpose of conveying legal advice;

4. Attorney work-product or attorney collection of information to provide legal advice;

Amazon produced to the consumers 15 of the 100 documents identified for in camera review. It also sought to claw back two documents as insufficiently redacted.

Claw back. Starting with the two documents Amazon sought to claw back, the court found Amazon intentionally produced them with specific redactions after completing a comprehensive review of its privilege logs. It could not claim inadvertence now. Moreover, the protective order the court previously approved did not articulate a desire to forego Fed. R. Evid. 502(b) waiver analysis. Without inadvertent waiver, standard R. 502(b) waiver still applied to the parties’ claw back requests.

In-house communications. Most of the documents Amazon submitted for in camera review were communications involving Amazon’s in-house counsel. Internal email chains about Amazon’s “talking points” in response to a New York Times article about Amazon’s acquisition of Whole Foods Market that included non-attorney employees and in-house attorneys did not contain any discernible request for legal advice or any legal analysis. That was so despite the emails being labeled as “privileged and confidential” or “seeking legal advice.” The court said that when the primary purpose of a document pertains to business operations, rather than giving or receiving legal advice, it is not protected by the attorney-client privilege. The court said there must be a clear showing that the purpose of the communication was for the purpose of obtaining or providing legal advice.

Similarly, a memorandum that concerned business matters, bearing Amazon in-house counsel stylistic and grammatical edits, and which did not reflect any legal analysis or advice, was not privileged. The fact that an attorney reviews an otherwise non-privileged document does not “transform” it into a privileged one.

Work-product. The court concluded that Amazon waived the attorney work-product privilege for some documents. Amazon claimed the work-product privilege in its amended privilege log for only five documents in the in camera sample, but it asserted the privilege with respect to “dozens” more documents in that sample. The consumers contended that because Amazon delayed raising its work-product claims, it waived that protection. Amazon countered that waiver was not automatic.

The court agreed with Amazon that the Ninth Circuit held that there is no per se waiver of the privilege when a party fails to produce their privilege log within the 30-day time limit under Fed. R. Civ. P. 34. However, on applying the Ninth Circuit’s case-by-case review standard, the court concluded that Amazon waived the attorney work-product privilege for some documents. Amazon failed to show or explain the work product protection for the documents.

For example, one email summarizing a meeting was drafted by a non-attorney and contained no discernible legal strategies or impressions. There was also no indication the document was prepared in anticipation of litigation. The court only considered the five work-product protection claims Amazon raised in its amended privilege log. Waiver of work-product privilege applied to all other documents in the in camera sample.

In camera results. The court determined that 54 of the 85 documents, about 63% of the documents submitted for review in camera, must be produced to the consumers in full or with some redactions. Of the 54, 19 contained some privileged material or attorney-work product, but the scope of the designation was too broad.

The Case is No. 2:22-cv-00965-JHC.

Judge: Chun, J.

Attorneys: Adam Wolfson (Quinn Emanuel Urquhart & Sullivan LLP) for Elizabeth De Coster. Amy J. Mauser (Paul Weiss Rifkind Wharton & Garrison LLP) for Amazon.com Inc.

Companies: Amazon.com Inc.

Cases: Antitrust WashingtonNews