In FTC v. Amazon.com, Inc., No. 2:23-cv-01495-JHC (W.D. Wash. Sept. 16, 2025), Washington District Judge John H. Chun, due to the ESI Order that allowed clawbacks for inadvertently or otherwise produced materials, granted two out of three clawback requests by Amazon.

Case Discussion and Judge’s Ruling

In this antitrust case, a dispute arose over Amazon’s attempt to claw back three categories of documents it had previously provided to the plaintiffs. The parties stipulated to an “Order Regarding Discovery of Electronically Stored Information” (ESI Order), which was entered by the Court.

As noted, Judge Chun granted two out of three clawback requests by Amazon. The three categories, the arguments positioned by the parties and the Court’s ruling on each are:

Documents Clawed Back After Privilege Re-Review

Outcome: Amazon is permitted to claw back these documents.

Plaintiffs’ Argument: Plaintiffs contended that the ESI Order and Rule 502(d) do not permit the claw back of documents that were intentionally disclosed after a privilege re-review. This is not an inadvertent mistake. Citing De Coster v. Amazon.com, plaintiffs argued the court previously disallowed a similar claw back by Amazon. They also argued that Amazon sought the claw back because it “apparently disliked the related testimony.”

Defendant’s Argument: Amazon argued that the ESI Order’s language – “inadvertent or otherwise” – allows for claw backs of any disclosure, including “conscious but mistaken” ones, unless they were used for strategic benefit. Amzon further denied that its conduct was strategic and argued that the plaintiffs’ reading effectively nullifies the broad protection of the agreed-upon Rule 502(d) order, also arguing that the key threshold for waiver under a 502(d) order is whether a party has “used” the documents.

Judge Chun’s Ruling: Judge Chun sided with Amazon, finding the ESI Order’s language to be decisive. The order explicitly states that Rule 502(b)’s provisions, including the requirement of inadvertence, “do not apply.” This gives Amazon a “free hand in clawing back documents.” Judge Chun also distinguished De Coster because the protective order in that case did not explicitly displace the Rule 502(b) waiver analysis. The ESI Order in the present case, by contrast, “does articulate such a desire.” He also agreed that a critical factor in similar cases is whether the party seeking the claw back has already used the documents (e.g., in a filing or deposition). Here, the plaintiffs did not contend that Amazon had used the documents, only that it had a chance to assert privilege and failed to do so. This was insufficient to prevent the claw back under the broad ESI Order.

Documents Produced in the Pre-Suit Investigation

Outcome: Amazon is prohibited from clawing back these documents and must re-produce them.

Plaintiffs’ Argument: Plaintiffs contended that an agreement from April 5, 2024, did not retroactively apply the ESI Order (which was entered later) to documents produced during the FTC’s pre-suit investigation; therefore, the stricter Rule 502(b) standard applies. Amazon’s conduct shows it believed Rule 502(b) applied, and it cannot meet the Rule 502(b) standard.

Defendant’s Argument: Defendant contended the agreement stated that investigation-era documents were “deemed produced” in the litigation, meaning they should be treated like any other production and fall under the ESI Order’s protection and that Plaintiffs’ own negotiation statements suggested these documents would be “treated the same” as other materials. Amazon also pointed to a prior, unopposed claw back of an investigation-era document. Amazon also argued that, even if Rule 502(b) applies, Amazon could show the disclosure was inadvertent.

Judge Chun’s Ruling: Judge Chun found the agreement’s language – “deemed produced in this litigation solely as a matter of convenience and in the interests of efficiency” – was not a “concrete directive” sufficient to supplant Rule 502(b). Retroactive application of a powerful Rule 502(d) order has significant legal effect and cannot be assumed implicitly. He also determined that plaintiffs’ statements about treating documents “the same” referred to promises not to share them with third parties under a Protective Order, not to retroactively apply a future ESI order. Because the agreement did not explicitly state the ESI order would apply retroactively, the default standard of Rule 502(b) governs these documents. Finally, Judge Chun concluded Amazon failed the first prong of Rule 502(b). In its briefing, Amazon did not claim, let alone demonstrate, that its initial production during the investigation was “inadvertent.” Furthermore, FTC regulations (16 C.F.R. § 2.11) provided a mechanism for Amazon to assert privilege during the investigation, mirroring the requirements of Rule 502(b).

Documents Discussed in Depositions

Outcome: Amazon is permitted to claw back these documents.

Plaintiffs’ Argument: Plaintiffs argued that Amazon waived privilege over two documents by permitting questioning on them and waiting hours after their introduction before objecting.

Defendant’s Argument: Defendant responded that the objections were ultimately raised before the depositions concluded, making them valid and timely. Amazon noted it raised issues immediately, though short of a formal objection, then lodged formal objections within three and a half hours at both depositions.

Judge Chun’s Ruling: Judge Chun found that while failure to object generally waives privilege, the timing of the objection is key. It distinguished this case from precedent where parties waited days, weeks, or months after a deposition to assert privilege. Citing Ninth Circuit precedent, Judge Chun found that objections made “a matter of hours” after a document’s introduction, but still during the deposition, are considered timely and do not constitute a waiver. Because Amazon’s objections occurred during the depositions, Judge Chun found no waiver of privilege had occurred.

So, what do you think? Are you surprised that the court granted two out of three clawback requests by Amazon? Please share any comments you might have or if you’d like to know more about a particular topic.

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