Amazon Wins Broad Privilege Protection Under Its ESI Order with Two Out of Three Clawbacks
FTC v. Amazon.com, Inc., No. 2:23-cv-01495-JHC (W.D. Wash. Sept. 16, 2025)
Why This Alert Is Important
This decision reinforces how carefully worded Rule 502(d) and ESI orders can shape privilege protection in large-scale investigations and litigation. “For in-house counsel, the opinion underscores the value of negotiating precise clawback terms and understanding when such protections apply—and when they don’t.
Overview
The Federal Trade Commission sued Amazon for alleged monopolistic conduct, triggering extensive discovery into its internal communications and prior dealings with regulators. During the litigation, Amazon sought to claw back three categories of documents it had previously disclosed:
- Materials re-reviewed and found privileged after production
- Documents first turned over to the FTC during its pre-suit investigation
- Documents discussed in depositions
Both sides relied heavily on an agreed-upon ESI order, which included a Rule 502(d) clause allowing clawbacks of materials produced “inadvertently or otherwise.” Plaintiffs argued this language should not cover intentional disclosures and that Amazon was attempting an after the fact do-over of strategic decisions. They also claimed Amazon’s handling of the pre-suit materials and its delay in raising objections during depositions amounted to privilege waiver.
The ruling methodically parsed the contract-like text of the parties’ discovery agreements, resolving key questions on how far Rule 502(d) orders extend and when a party to litigation’s conduct overrides the protections laid out in such an order. The analysis treated each document set separately.
Ruling Summary
- Broad 502(d) Order Allowed Re-Review Clawback On the first set of documents, materials re-reviewed and found privileged, court sided with defendant (Amazon) emphasizing that the ESI Order’s “inadvertent or otherwise” language expressly displaced Rule 502(b)’s inadvertence test. Because the order stated that Rule 502(b) “does not apply,” Amazon was entitled to reclaim documents it had consciously but mistakenly disclosed, giving them a “free hand in clawing back documents.” The court reasoned that the central concern under a 502(d) regime is use, not intent: privilege is only distinguished this ruling from De Coster v. Amazon.com, noting that the protective order in that earlier case lacked the explicit waiver-displacement language present in the ESI Order in this case. Defendan’ts clawback request for the re-reviewed documents was approved.
- No Retroactive 502(d) Protection for Pre-Suit Production The outcome differed for the second set of materials—documents produced to the FTC before litigation began. Defendant argued that an April 2024 stipulation investigation documents were “deemed produced” and therefore governed by the ESI order. Plaintiff argued that the ESI order should not be retroactively applied, and the stricter FRE 502 criteria should apply. The ruling found that the “deemed produced” stipulation could not be assumed to apply retroactively, meaning defendant needed to show its initial disclosure was inadvertent, a burden it failed to meet. The ruling required to re-produce the second class of documents.
- Timely Objection Preserved Privilege at Depositions Finally, the court addressed two documents introduced in depositions where defendant waited several hours before objecting. Plaintiffs argued that the delay constituted waiver. The court rejected that view, holding that objections made “a matter of hours” later but still during the same deposition session were timely. The court allowed clawback of the deposition documents, concluding no waiver had occurred.
This decision emphasizes the powerful protection provided by a properly drafted Federal Rule of Evidence 502(d) non-waiver order that allows clawback of inadvertently and even intentionally produced ESI. At least in the Ninth Circuit, it may be important to include in the 502(d) order a statement that FRE 502(b) does not apply. Nevertheless, even a well drafted 502(d) order will not be applied retroactively, such as for documents produced in pre-litigation production before entry of the 502(d) order.Hon. Andrew Peck (ret.), Senior Counsel, DLA Piper
Data Privacy Tip
If you could use a quick refresher on the Federal Rules of Civil Procedure (FRCP)—especially how they shape discovery obligations—Exterro’s FRCP Guide is a valuable resource. The guide walks through the key rules governing preservation, production, and proportionality, highlighting recent updates and practical implications for corporate legal teams and outside counsel.
