In De Coster v. Amazon.com, Nos. 2:21-cv-00693-JHC, 2:20-cv-00424-JHC, 2:22-cv-00965-JHC (W.D. Wash. Mar. 25, 2025), Washington District Judge John H. Chun, after conducting an in camera review of documents designed as privileged by Amazon, determined that “54 out of the 85 documents reviewed in camera must be produced to Plaintiffs in full or with some redactions.” He also denied Amazon’s request to claw back two documents, finding that the production was intentional.

Case Discussion and Judge’s Ruling

In this antitrust class action against Amazon, alleging violations of the Sherman Act, Plaintiffs moved to compel the production of documents they believe were improperly withheld by Amazon under unsubstantiated claims of attorney-client privilege and work-product protection. They argued that Amazon’s privilege logs were deficient and that hundreds of thousands of documents were improperly withheld.

Amazon also sought to “claw back” two documents (37 and 38) due to alleged insufficient redactions. Plaintiffs contended that Amazon could not show that the disclosure of the two documents was inadvertent and that the Protective Order invoked the protections afforded by Federal Rule of Evidence 502(b) and Amazon may not claw back documents it intentionally produced to Plaintiffs. Amazon responded that the parties did not intend to override the protections of Rule 502(d) and did not waive privilege because the Protective Order controlled the treatment of documents produced during discovery in these cases.

Judge Chun stated: “The Protective Order, approved of by this Court, does not ‘articulate the desire’ to forgo the Rule 502(b) waiver analysis. No reasonable reading of the Order supports Amazon’s contention that it allows a party to claw back a document under any circumstances. The Order expressly ‘invokes the protections afforded by Fed. R. Evid. 502(b).’…Thus, the Rule 502(b) waiver standard still applies to the parties’ claw back requests.”

Continuing, he said: “Amazon’s production of Documents 37 and 38 was intentional. Plaintiffs say that Document 37 was produced with redactions on February 25, 2025, and Document 38 was produced with redactions on August 9, 2024, and then re-produced to Plaintiffs with fewer redactions on January 29, 2025…Amazon intentionally produced these documents with specific redactions after completing a comprehensive re-review of its privilege logs. ‘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.’”

As for the privilege log entries, Amazon stated it was re-reviewing its privilege log entries and would complete this by mid-October 2024. Based on this, the Court initially denied the Plaintiffs’ motion without prejudice, instructing them to renew it after Amazon’s review.

Following a renewed motion and hearing, the Court ordered Amazon to complete its re-review and provide a final privilege log by February 25, 2025. Plaintiffs were then permitted to select up to 100 documents from this final log for in camera review by the Court.

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

• Category 1: Direct provision or request for legal advice.
• Category 2: Communications conveying legal advice or a request for legal advice.
• Category 3: Communications where the primary purpose is to convey legal advice.
• Category 4: Attorney work-product or the collecting of information to provide legal advice.

After Plaintiffs made their selections, Amazon agreed to produce 15 of the 100 documents selected for in camera review, leaving 85 to be reviewed by the Court.

In discussing the documents, Judge Chun stated: “Most of the documents submitted to the Court for in camera review are communications involving Amazon’s in-house counsel. In-house attorneys often serve multiple functions in a corporation. They ‘may be involved intimately in the corporation’s day to day business activities and frequently serve as integral players in business decisions or activities.’…The attorney-client privilege does not extend to an in-house attorney’s business advice and ‘[c]orporations may not conduct their business affairs in private simply by staffing a transaction with attorneys.’”

Judge Chun also rejected Amazon’s assertion that “many” of the documents at issue were protected by the work-product doctrine, stating: “The circumstances here warrant a conclusion of waiver. Amazon claimed work-product protection in its amended privilege log for only five of the documents in the in camera sample, yet it is now asserting in its correspondence to the Court that work-product protection applies to dozens more documents in the in camera sample… Amazon also fails to show or explain how these documents qualify for work-product protection”, citing a specific email as an example, which was written by a non-attorney employee and sent to non-attorneys and in-house attorneys with “no discernable legal strategies or impressions in this document”.

Discussing his findings, Judge Chun stated: “the Court determines that 54 out of the 85 documents reviewed in camera must be produced to Plaintiffs in full or with some redactions. Of these 54 documents, 19 contain some privileged material or attorney-work product, but the scope of the designation was too broad. Thus, about 63 % of the documents submitted for in camera review must be provided to Plaintiffs in their entirety or with appropriate redactions.”

Judge Chun concluded: “The Court’s in camera review shows that Amazon improperly designated operational, business, and strategic documents as attorney-client communications or attorney-work product. For many of these communications, in-house attorneys are simply copied on emails. Even where an in-house attorney actively takes part in a conversation, most of the communications involve public relations matters, technical/operational issues, strategic goals for the company, customer expectations, or regulatory demands, not requests for or the provision of legal advice. Many documents over which Amazon asserted attorney-work product do not appear to have been prepared in anticipation of litigation or contain discernable legal strategies.”

So, what do you think? Are you surprised that 54 out of the 85 documents reviewed in camera were ordered to be produced? Please share any comments you might have or if you’d like to know more about a particular topic.

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