Key Takeaways:
- Protecting privileged information is critical and significant in litigation and the task of doing so can be complex and burdensome with the volume of ESI parties need to review.
- A recent court decision shows how a properly worded Rule 502(d) Order can safeguard against the inadvertent production of privileged ESI.
- Rule 502(d) is a powerful procedural mechanism that protects against privilege waiver and can help reduce discovery costs and promotes efficiency in litigation.
Generally, a party waives privilege with respect to a document if they produce it. Federal Rule of Evidence 502(b) provides that disclosure does not waive privilege when it is inadvertent; the privilege holder “took reasonable steps to prevent disclosure”; and the privilege holder took prompt, reasonable steps to correct the error. Fed. R. Evid. 502(b)(1-3).
Federal Rule of Evidence 502(d) is a powerful tool available to litigants trying to protect against waiver of privilege as a court may order that the privilege is not waived by disclosure.
A recent federal court decision highlights the importance of getting a Rule 502(d) order in place with the language that will safeguard against the inadvertent production of privileged ESI.
In the antitrust case, Federal Trade Commission v. Amazon.com, Inc., No. 2:23-CV-01495-JHC, 2025 WL 2832474 (W.D. Wash. Sept. 16, 2025), a dispute arose over Amazon’s attempt to claw back certain categories of documents it had previously produced to the plaintiffs. The parties had agreed to an Order Regarding Discovery of Electronically Stored Information (ESI Order), which included a Rule 502(d) Order:
Pursuant to Fed. R. Evid. 502(d), the production of any documents, electronically stored information (ESI) or information, whether inadvertent or otherwise, 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. This Order shall be interpreted to provide the maximum protection allowed by Fed. R. Evid. 502(d). The provisions of Fed. R. Evid. 502(b) do not apply. Id. at 1216.
Documents Clawed Back After Privilege Re-Review
The plaintiffs argued that Rule 502(d) did not permit Amazon to claw back documents it produced after a privilege re-review. In response, Amazon argued that the Rule 502(d) Order in the ESI Order expressly allows claw backs for any purpose, including inadvertent disclosures or “conscious but mistaken” disclosures unless Amazon “selectively disclosed them for strategic benefit.”
The Court agreed with Amazon’s position and found that the ESI Order expressly stated that Rule 502(b)’s provisions, including the requirement of inadvertence, “do not apply.” The plaintiffs also argued that Amazon sought to claw back these documents because they “apparently disliked the related testimony.” However, the Court rejected this argument and found that Plaintiffs stopped short of contending that Amazon used these documents, such as by citing them in a filing. Id. at 1217-18.
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