Labor & Employment Law Daily Wrap Up, EVIDENCE, DISCOVERY—W.D. Wash.: Amazon’s attempt to claw back privileged documents denied in antitrust case, (May 2, 2025)

By George Basharis, J.D.

Court rejected Amazon’s bid to reclaim documents it inadvertently produced during discovery in a major antitrust lawsuit.

The United States District Court for the Western District of Washington has denied Amazon’s motion to claw back privileged material and strike references from the plaintiffs’ class certification motion in a consolidated antitrust litigation. The ruling hinged on the court’s finding that Amazon’s production of the disputed documents was intentional rather than inadvertent, undermining the company’s claim for protection under Federal Rule of Evidence 502(b). The court determined that Amazon failed to demonstrate how documents that were deliberately downgraded during an extensive eight-month privilege re-review involving over 200 lawyers could be considered mistakenly produced. The case, which combines three separate antitrust class actions, involves allegations of various Sherman Act violations in connection with Amazon’s alleged “Most Favored Nation” pricing policies; (De Coster v. Amazon.com, Inc., No. 2:21-cv-00693-JHC (W.D. Wash. Apr. 29, 2025)).

Privileged documents. The dispute centered around three documents that Amazon sought to claw back after they were included as exhibits in the plaintiffs’ class certification motion. Within a week of receiving the motion, Amazon emailed the plaintiffs requesting the return of three exhibits that had been produced to the plaintiffs.

Amazon demanded that the plaintiffs “destroy all copies of these documents, delete them from any and all litigation support or other databases in their possession, and expunge them from any work product reflecting the contents of the documents.” Additionally, Amazon requested that the plaintiffs remove any references to these documents from their class certification papers and refile a new version without such references. The plaintiffs responded that they believed Amazon had waived privilege over these documents, and the parties were unable to resolve the issue through meet-and-confer discussions.

Waiver. The court analyzed the dispute under Rule 502(b), which provides that disclosure of privileged material does not constitute a waiver when: (1) the disclosure is inadvertent; (2) the privilege holder took reasonable steps to prevent disclosure; and (3) the privilege holder took prompt, reasonable steps to correct the error.

A central question in the case was whether the parties’ Electronically Stored Information (ESI) Protocol or their amended protective order governed the treatment of these documents. Amazon argued that the ESI Protocol contained a Rule 502(d) provision that expressly protected against waiver of privilege if a party produces privileged information during discovery. The company contended that even if the protective order applied instead, the court should reach the same result.

Protective order vs. ESI protocol. The court determined that the amended protective order, which was more specific and approved in July 2024 (over a year after the ESI Protocol), applied to the disputed documents. The protective order contained a section titled “Inadvertent Production of Privileged or Otherwise Protected Material,” which invoked the protections of Rule 502(b).

Crucially, the court noted that the only restriction in the protective order’s provision was that it did not modify “whatever procedure may be established in an e-discovery order or agreement that provides for production without prior privilege review.” Because the three documents at issue were produced during Amazon’s months-long privilege re-review, the court concluded that the amended protective order applied.

Amazon’s privilege re-review process. The court examined the context of Amazon’s production of these documents. During a January 2025 hearing, Amazon had represented to the court that 80 lawyers had been working on its privilege re-review, putting in 14,000 hours. The company stated that the documents had been individually re-reviewed, sometimes requiring “many meetings to figure out the context of the document, especially with dual-purpose documents.”

In a March 2025, letter to the court, Amazon had further elaborated that over 200 lawyers from five law firms participated in the re-review process, covering nearly 140,000 privilege log entries. This process included reviewing a document’s full family, other branches of email chains, and related background information.

Inadvertence. The court applied the first of two approaches used by courts to determine whether a disclosure is inadvertent under Rule 502(b): looking at “whether the party intended a privileged or work-product protected document to be produced or whether the production was a mistake.”

The court found that Amazon’s production of the documents was intentional rather than inadvertent. The court noted that Amazon had downgraded the documents during its comprehensive re-review of privilege logs, and the company did not adequately explain how the production was a mistake. For example, regarding one of the three exhibit Amazon sought to claw back, Amazon’s declaration merely stated that the document was “inadvertently downgraded” to “privilege redact” a year after it was originally withheld in full, without explaining how this constituted a mistake. The court explained, “When a party makes a strategic decision that it later regrets, such as redacting a document rather than withholding it completely as privileged, it cannot later claim inadvertence to shield itself from the consequences of its own judgment call.”

Amazon cited a recent case from the Northern District of California to support its contention that the disclosure was inadvertent. In that case, Apple, Inc. was allowed to claw back several documents that it had re-reviewed for privilege and produced with redactions. However, the court distinguished the circumstances, noting that Apple had re-reviewed a smaller number of documents (54,000) within just a few weeks, creating more potential for genuine mistakes. In contrast, Amazon conducted its re-review of approximately 100,000 documents over an eight-month period, with substantial resources and time that should have allowed for more careful deliberation and accurate privilege determinations.

The court ultimately determined that Amazon failed to meet its burden of proving that the disclosure of the documents was inadvertent under Rule 502(b). Because the company failed to satisfy one of the requirements, the court declined to address the other two elements of the rule and denied Amazon’s motion.

The Case is No. 2:21-cv-00693-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: EvidenceDiscovery ClassActions WashingtonNews