New District Court Ruling Would Effectively Eliminate Clawbacks of Privileged Documents That Are Produced by Accident
Client Alert | May 21, 2025
Frame-Wilson v. Amazon.com, Inc., No. 2:20-cv-00424 (W.D. Wa.) – Decided April 29, 2025
A court in the Western District of Washington has held that human error in coding a privileged document as non-privileged does not qualify as inadvertent production of privileged documents under Federal Rule of Evidence 502(b).
Background
Amazon.com, Inc. is the defendant in three putative antitrust class actions. Amazon has produced almost 14 million documents, with the help of some 160 document reviewers. After a dispute arose over Amazon’s privilege log, Amazon conducted a privilege re-review of over 100,000 documents. During the course of that review, a reviewer designated three documents as not privileged or neglected to redact privileged information.
The plaintiffs then moved for class certification. In their motion, they cited the three documents that had been marked not privileged or had been inadequately redacted. Amazon quickly sought to claw back the documents, asking the plaintiffs to destroy them and to refile the class-certification motion without citing them. The plaintiffs refused, arguing that Amazon had waived any claim of privilege by virtue of producing the documents.
Issue Presented
Is a waiver of privilege “intentional” under Federal Rule of Evidence 502 when a reviewer mistakenly codes a privileged document as not privileged?
Court’s Holding
Yes. Absent extenuating circumstances, such as a technical glitch, the production of a privileged document is necessarily deliberate, and privilege is therefore waived, whenever a document was reviewed and designated “not privileged,” even if the document was initially designated privileged and was downgraded by mistake. The Court reached this conclusion after determining that the parties’ standard discovery agreements were inadequate to trigger the benefits of Federal Rule of Evidence 502(d), which permit no-fault clawbacks and limit the scope of any waivers to one particular lawsuit.
What It Means
- In complex cases, litigants often accidentally produce a handful of privileged documents and seek to claw them back. Because cases routinely involve millions of documents, mistakes are inevitable, and litigants generally rely on the protections afforded by discovery agreements based on Rule 502. But the court here rejected the possibility of human error, holding that the production of a document marked as non-privileged must mean that the party producing it intentionally waived any claim of privilege.
- The district court’s rule would leave very little that would satisfy the “inadvertence” standard for avoiding a privilege waiver under Federal Rule of Evidence 502(b). The court limited the standard to cover little more than technical glitches and freak accidents, rather than simple human error.
- Other courts might conclude that a litigant’s reaction to the use of privileged information has some bearing on whether the disclosure of that information was inadvertent. Here, Amazon immediately took steps to claw back its documents and has continued to pursue the issue even after the district court’s decision. On May 14, Amazon challenged that decision by filing a petition for a writ of mandamus from the Ninth Circuit, and on May 19, the U.S. Chamber of Commerce filed an amicus brief in support of Amazon’s position.
- If the Ninth Circuit declines to review the district court’s decision, litigants would be well advised to devote even more resources to ensuring that no privileged documents are produced. It may not be enough, as it was not in this case, to rely on standard language invoking the protections of Federal Rule of Evidence 502(d), or on Federal Rule of Evidence 502(b)’s default protections against inadvertent disclosure.
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Litigation practice group, or the following authors:
Samuel Liversidge – Los Angeles (+1 213.229.7420, sliversidge@gibsondunn.com)
Julian W. Poon – Los Angeles (+1 213.229.7758, jpoon@gibsondunn.com)
© 2025 Gibson, Dunn & Crutcher LLP. All rights reserved. For contact and other information, please visit us at www.gibsondunn.com.
Attorney Advertising: These materials were prepared for general informational purposes only based on information available at the time of publication and are not intended as, do not constitute, and should not be relied upon as, legal advice or a legal opinion on any specific facts or circumstances. Gibson Dunn (and its affiliates, attorneys, and employees) shall not have any liability in connection with any use of these materials. The sharing of these materials does not establish an attorney-client relationship with the recipient and should not be relied upon as an alternative for advice from qualified counsel. Please note that facts and circumstances may vary, and prior results do not guarantee a similar outcome.