Vinson & Elkins
MONTH-IN-BRIEF (May 2025)
Court Denies Motion to Claw Back Discovery Pursuant to Rule 502(b), Finding Production was Not Inadvertent
By Timbre Shriver, Vinson & Elkins LLP
On April 29, 2025, in De Coster v. Amazon.com, Inc., the United States District Court for the Western District of Washington denied Amazon.com, Inc.’s motion to claw back certain privileged documents produced in connection with multiple antitrust class action lawsuits. Amazon sought to retrieve three documents it asserted were inadvertently disclosed and to strike references to those documents from plaintiffs’ class certification motion.
The Court first addressed whether the parties’ ESI Protocol or the Amended Protective Order governed the dispute. The Court found that the Amended Protective Order, which specifically addresses the inadvertent production of privileged material and invokes the protections of Federal Rule of Evidence 502(b). Rule 502(b) provides that privilege is not waived by disclosure if the disclosure was inadvertent, the privilege holder took reasonable steps to prevent disclosure, and the privilege holder took prompt, reasonable steps to rectify the error. The Court determined that the Protective Order did not supplant the Rule 502(b) waiver analysis, and therefore, the requirements of Rule 502(b) controlled.