On April 29, 2025, United States District Judge John H. Chun of the Western District of Washington issued an order denying defendant Amazon’s request to claw back privileged documents it argued had inadvertently produced in discovery. 1[i] Judge Chun held that, under the Protective Order in the case and Federal Rule of Evidence 502(b), Amazon had waived its claim of privilege by producing the documents, even though the parties had entered into an ESI Protocol expressly providing that any inadvertent production would not waive privilege.
This decision, which is now subject to a mandamus petition, highlights the need to carefully craft ESI Protocols and Protective Orders to avoid any possible ambiguity as to the effect of a production of privileged materials. The decision also demonstrates the risks associated with privilege reviews, including that a judge may find waiver notwithstanding careful efforts a party may have taken to avoid the inadvertent production of privileged materials.
Background
The underlying case arose out of three related antitrust actions filed against Amazon by private plaintiffs in the Western District of Washington. Amazon had initially withheld or redacted the three documents at issue. According to Amazon, the documents contain attorney-client communications about regulatory risks and litigation. During a later re-review, the documents in question were incorrectly produced either in full or with redactions.
Amazon only realized that the documents had been produced when the plaintiffs included them as exhibits to their motion for class certification. It promptly argued that the production of these documents was inadvertent and due to human error in the re-review process. Amazon accordingly filed a motion to claw back the documents, which Judge Chun denied.
Judge Chun’s Waiver Ruling
Although Judge Chun did not question Amazon’s position that the three documents were privileged, he held that Amazon waived any privilege by producing the documents in discovery. Judge Chun reached that conclusion under Federal Rule of Civil Procedure 502(b), which provides that disclosure of privileged information “does not operate as a waiver” if three requirements are satisfied: (1) “the disclosure is inadvertent,” (2) the producing party “took reasonable steps to prevent disclosure,” and (3) the producing party “promptly took reasonable steps to rectify the error.”
Amazon argued that Rule 502(b) did not apply. Instead, Amazon relied on Rule 502(d), which provides that “[a] federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other federal or state proceeding.” Amazon argued that Rule 502(d) applied because the parties had agreed to an ESI Protocol providing as follows:
Pursuant to Fed R. Evid. 502(d), the production of any documents in this proceeding shall not, for the purposes of this proceeding or any other federal or state proceeding, constitute a waiver by the producing party of any privilege applicable to those documents, including the attorney-client privilege, attorney work-product protection, or any other privilege or protection recognized by law. Information produced in discovery that is protected as privileged or work product shall be immediately returned to the producing party, and its production shall not constitute a waiver of such protection.
Judge Chun rejected the defendant’s reliance on the ESI Protocol, holding that the Protective Order in the case trumped the ESI Protocol’s citation to Rule 502(d). Specifically, Judge Chun relied on language in the Protective Order stating that it was “not intended to modify whatever procedure may be established in an e-discovery order or agreement that provides for production without prior privilege review.” Judge Chun interpreted that language as superseding any agreement that addressed production after a party conducted a privilege review, including the ESI Protocol. Judge Chun also held that the Protective Order did not invoke Rule 502(d)’s protections because the Protective Order lacked “concrete directives” overriding “each prong of Rule 502(b).”
As a result, Judge Chun applied Rule 502(b), which required the defendant to show that (1) its disclosure of the documents was “inadvertent,” (2) it “took reasonable steps to prevent disclosure,” and (3) it “promptly took reasonable steps to rectify the error.” Judge Chun thus adopted a stringent approach to assessing inadvertence, essentially asking only whether the documents in questions were produced intentionally or rather by mistake. Judge Chun acknowledged but chose not to follow an alternative, more nuanced approach to assessing inadvertence, which would have analyzed the total number of documents reviewed, the procedures used to review the documents, and the actions defendant took after discovering that the documents had been produced.
Under his stringent approach, Judge Chun found that Amazon’s production was “intentional” because it resulted from an extensive “privilege re-review” involving hundreds of lawyers reviewing nearly 140,000 documents over thousands of hours over the course of many months. Judge Chun overlooked that, statistically speaking, it would be unusual for there not to be some documents inadvertently produced as the result of human error in such an extensive review of involving so many reviewers. Instead, Judge Chun effectively demanded perfection in the review process and punished the defendant for taking the very steps to prevent disclosure that Rule 502(b) requires.
Amazon has filed a mandamus petition in the Ninth Circuit, asking the Court of Appeals to reverse Judge Chun’s decision,2 and the U.S. Chamber of Commerce has filed an amicus brief in support. The Ninth Circuit has ordered the plaintiffs to file a response to the mandamus petition.
Implications
Judge Chun in this case was cognizant of the interplay between the ESI Protocol and Protective Order yet chose to ignore the Rule 502(d) protections Amazon negotiated to have included in the ESI Protocol, placing principal emphasis on what he regarded as being controlling language in the separate Protective Order. This is an alarming and questionable holding given the clear evidence of the parties’ intent to invoke Rule 502(d), yet it also underscores the importance of ensuring that all discovery-related orders are complementary and cannot be read to contain arguable inconsistencies.
Even more alarming is Judge Chun’s analysis of inadvertence, which appears to presume—at least in the context of a re-review—that no documents produced as a result of that re-review can be viewed as the product of mistake. The fact is that any e-discovery process, and particularly voluminous processes, which can include re-reviews, are subject to potential human error. Judge Chun’s ruling essentially presumes perfection in a re-review process, by assuming that any document produced must have been produced advertently, triggering a waiver. If this ruling stands, it could magnify further the already enormous costs of voluminous e-discovery by requiring defendants to engage in even more precise, and hence more burdensome and expensive, privilege reviews.
It remains to be seen how the Ninth Circuit resolves the defendant’s mandamus petition. In the meantime, litigants should ensure that their ESI Protocols and Protective Orders are consistent and provide the maximum protection under Rule 502(d), and that they take all necessary and appropriate steps to avoid inadvertent productions, particularly in the context of a re-review.
1De Coster v. Amazon.com, Inc., No. 2:21-cv-00693 (W.D. Wash. Apr. 29, 2025), ECF No. 329.
2In re Amazon.com, No. 25-3099 (9th Cir. May 14, 2025).
