De Coster v. Amazon.com Inc

[2] UNITED STATES DISTRICT COURT [3] WESTERN DISTRICT OF WASHINGTON AT SEATTLE [4] 5 ELIZABETH DE COSTER et al., on behalf of CASE NO. 2:21-cv-00693-JHC themselves and all others similarly situated, [6] Plaintiffs, ORDER [7] v. [8] AMAZON.COM, INC., a Delaware corporation, [9] Defendant. [11] DEBORAH FRAME-WILSON, et al., on behalf CASE NO. 2:20-cv-00424-JHC 12 of themselves and all others similarly situated, 13 Plaintiffs, v. [14] AMAZON.COM, INC., a Delaware corporation, [15] Defendant. [16] CHRISTOPHER BROWN, et al., on behalf of 17 themselves and all others similarly situated, CASE NO. 2:22-cv-00965-JHC 18 Plaintiffs, 19 v. 20 AMAZON.COM, INC., a Delaware corporation, [21] Defendant. [24] 1 I 2 INTRODUCTION 3 This matter comes before the Court on Plaintiffs’ Objection to the Special Master’s 4 August 27, 2025 and September 2, 2025 Orders on the Legal Standards Applicable to Claw Back [5] Attempts. Case No. Case No. 21-693, Dkt. # 424.1 The Court has reviewed the materials filed 6 in support of and in opposition to the objection, pertinent portions of the record, and the 7 applicable law. Being fully advised, the Court overrules the objection. 8 II 9 BACKGROUND 10 After a contentious discovery process, under Federal Rule of Civil Procedure 53, the 11 Court appointed a Special Master to oversee discovery disputes about privilege. Dkt. ## 381 & 12 386. The objection concerns documents that Amazon, the producing party, “flipped” from other 13 actions involving the Federal Trade Commission (FTC) and the California Attorney General (CA 14 AG) to Plaintiffs in the captioned actions (the Private Cases). Amazon copied the productions in 15 those actions and produced them “as quickly as possible,” without “re-reviewing those 16 documents for privilege before production to Plaintiffs.” Dkt. # 435 at 2. The Special Master 17 issued two orders, dated August 27, 2025 (the August Order, Dkt. # 424-1) and September 2, 18 2025 (the September Order, Dkt. # 424-2). Plaintiffs then filed objections to these orders. Dkt. # 19 424. [23] 24 1 Docket citations reference filings in De Coster, 21-693, unless otherwise noted. 1 III 2 DISCUSSION 3 A. Standard of Review 4 The parties dispute the standard of review applicable to the Special Master’s orders. 5 Plaintiffs say that the Court must review any of the Special Master’s findings of fact or 6 conclusions of law de novo, implying that a ruling on the scope of privilege is one, the other, or 7 both. See Dkt. # 424 at 2 (citing Sukumar v. Direct Focus, Inc., 349 F. App’x 163 , 165 (9th Cir. 8 2009)); see Fed. R. Civ. P. 53(f)(3)–(4). Amazon responds that the Court may review the 9 Special Master’s orders only for abuse of discretion, since Rule 53(f)(5) states that a “court may 10 set aside a master’s ruling on a procedural matter only for abuse of discretion,” and the scope or 11 waiver of privilege under Federal Rule of Evidence 503 is a procedural matter. See Dkt. # 435 at 12 4 (collecting authority). 13 Amazon’s cited authority for its proposition is only persuasive. The company cites the 14 advisory committee’s note recapitulating the Congressional debate on Rule 503 for the 15 proposition that the rule “does not alter the substantive law regarding attorney-client privilege or 16 work-product protection,” and so the rule must be procedural. But neither the text of Rule 503 17 nor the advisory committee notes explicitly state that conclusion. Beyond the bankruptcy case In 18 re Smith, which Amazon accurately cites for its description of waiver as a procedural issue, see [19] 397 B.R. 134, 140 (Bankr. D. Nev. 2008), it cites no other in-Circuit authority for the proposition 20 that scope or waiver of privilege is a procedural rather than substantive issue. Amazon’s out-of21 Circuit cases are otherwise accurately cited. 22 In any event, employing either standard of review results in the same outcome of 23 upholding the Special Master’s orders. Thus, the Court does reach the issue of whether a [24] 1 determination regarding waiver of privilege under Rule 502 is a “procedural matter” governed by 2 Rule 53(f)(5) or else a ruling governed by Rule 53(f)(3) and/or Rule 53(f)(4). 3 B. Analysis 4 Plaintiffs raise two objections to the Special Master’s conclusions in the August and 5 September Orders. 6 First, Plaintiffs challenge the Special Master’s conclusion that the Rule 502(d) order 7 agreed upon by the parties here, i.e., the ESI Protocol (Dkt. ## 66, 67) applies to Amazon’s claw 8 back of documents that Amazon produced without having conducted a review in the Private 9 Cases. Plaintiffs contend that this conclusion departs from the Court’s July 17, 2025 Order (the 10 July Order), Dkt. # 389, which states that, 11 To claw back any documents in [the Private Cases], Amazon must make a showing of inadvertence under Rule of Evidence 502(b), regardless of whether the 12 documents were produced to Plaintiffs after having been previously produced in another action, or initially withheld in another action on the basis of privilege and 13 produced first to Plaintiffs. 14 Dkt. # 389 at 1. Plaintiffs say that the July Order clarifies that Rule 502(b) standards apply to 15 “every document Amazon attempts to claw back in their cases that had—before any production 16 in the coordinated cases—been reviewed for privilege.” Dkt. # 424 at 3. They say that the 17 Court’s April 29, 2025 order (the April Order, Dkt. # 329) compels this interpretation. The 18 Court’s April Order states that the Amended Protective Order, Dkt. # 169—which applies Rule 19 502(b) standards to inadvertently produced documents—“applies to documents that the 20 producing party reviewed for privilege.” See Dkt. # 329 at 6. 21 Second, Plaintiffs object to the Special Master’s conclusion that certain documents 22 “could be so obviously privileged—and [their] disclosure so obviously harmful—that a mistake 23 is the only plausible explanation for the production.” Dkt. # 424-1 at 3. The Special Master [24] 1 used this conclusion to find that seven documents could be clawed back despite Amazon’s 2 failure to “adduce[] facts showing that production of the” documents in question “was a 3 mistake.” Dkt. # 424-2 at 4. Relatedly, Plaintiffs seek “clarification” from this Court as to 4 whether, to show inadvertence for Rule 502 standards, Amazon “must submit a declaration from 5 the actual reviewer to establish that a reviewer actually miscoded a document,” rather than a 6 declaration from another attorney opining on “another reviewer’s intent or mistake.” Dkt. # 424 7 at 7. 8 Plaintiffs’ first objection does not persuade the Court. At issue in the July Order were 9 two groups of documents that Amazon had clawed back from Plaintiffs: (1) documents that were 10 first produced to the FTC and the CA AG and then clawed back under protective orders in those 11 actions, see Dkt. # 359 at 2 & 6, and (2) documents that were reviewed in the FTC and CA AG 12 actions and withheld, then re-reviewed for privilege, and then “(inadvertently) down-graded as a 13 result of [that] privilege re-review,” and then produced to both the regulators and Plaintiffs. Id. 14 Put differently, every document at issue in Plaintiffs’ motion leading to the July Order had been 15 subject to a review (e.g., documents from the first group) or re-review (e.g., documents from the 16 second group) of some kind in the Private Cases. Because those documents had already been 17 reviewed or re-reviewed, they are subject to the Amended Protective Order’s Rule 502(b) 18 standards under the Court’s April Order. See Dkt. # 389 at 1 (July Order); Dkt. # 329 at 5–6 19 (April Order). 20 The July Order does not speak to documents that were never reviewed for privilege in the 21 Private Cases. Rather, the July Order clarifies that, of the documents that the “producing party 22 reviewed for privilege,” it does not matter whether those documents “were produced to Plaintiffs 23 after having been previously produced in another action” or “initially withheld in another action 24 on the basis of privilege and produced first to Plaintiffs.” Dkt. # 389 at 1. The July Order says 1 nothing regarding documents that Amazon has not reviewed in the Private Cases, which is what 2 the Special Master concluded. In turn, and as the Special Master concluded, documents never 3 reviewed in the Private Cases are subject to the ESI Protocol, a Rule 502(d) order under which 4 Amazon need not show inadvertence. See also Dkt. # 435 at 4–5. 5 Plaintiffs say that their interpretation of the July Order “was based on Amazon’s 6 representation that it reviewed every document that was ultimately produced to Plaintiffs for 7 privilege.” Dkt. # 424 at 3. But Plaintiffs may misapprehend Amazon’s position. Amazon has 8 represented that the privilege re-review that it conducted in late 2024 and early 2025 “did not 9 encompass all” of the documents produced to Plaintiffs in this case. Dkt. # 435 at 2. In other 10 words, there are documents that Amazon has produced to Plaintiffs that have never been 11 reviewed, and those documents are subject to Rule 502(d) standards. 12 Nor does Plaintiffs’ second objection persuade the Court. They object to the Special 13 Master’s (1) conclusion that documents may be so obviously privileged that their production was 14 a mistake for Rule 502(b) purposes, as written in the August Order; and (2) application of that 15 conclusion to 34 documents at issue in the September Order. 16 But the Special Master’s “so obviously privileged” conclusion derives from the Court’s 17 own determination, set forth in a discovery order dated March 25, 2025 (Dkt. # 302) as to the 18 meaning of “inadvertence” under Rule 502(b). There, this Court reasoned that “[a]n ‘inadvertent 19 disclosure’ is simply where the work-product protected document was produced as the result of a 20 mistake.” Dkt. # 302 at 9; see B&G Foods N. Am., Inc. v. Embry, 2024 WL 922900 , at *2 (E.D. 21 Cal. Mar. 4, 2024); see also T&W Holding Co., LLC v. City of Kemah, Tex., 641 F. Supp. 3d 22 378, 382 (S.D. Tex. 2022) (in evaluating inadvertence, courts look to “whether the party 23 intended a privileged or work-product protected document to be produced or whether the 24 production was a mistake”). The Special Master merely clarified that under this approach, the 1 production of a document with obvious indicia of privilege amounts to a showing of 2 || inadvertence under Rule 502(b).” 3 Finally, the Court declines to order, as Plaintiffs request, that to show inadvertence, 4 || Amazon must submit “a declaration from the actual reviewer to establish that a reviewer actually 5 || miscoded the document.” Dkt. # 424 at 7. Plaintiffs base their request on their characterization 6 || ofasentence from the Special Master’s August Order that Amazon must produce “a declaration 7 from an attorney who reviewed the document” to show inadvertence. Jd. (citing Dkt. # 424-1 at 8 3). But Plaintiffs leave out the conditional at the end of the sentence, to wit: “But a declaration 9 from an attorney who reviewed the document, stating that the attorney intended to label the 10 || document as privileged but mistakenly coded it as non-privileged, would likely suffice.” Dkt. # 11 at 3 (emphasis added). It is apparent from context that the Special Master opined on one 12 way Amazon might show inadvertence, not the only way. 13 IV 14 CONCLUSION 15 For the reasons above, the Court overrules Plaintiffs’ objections. Dkt. #424. The Court 16 || ADOPTS the Special Master’s August and September Orders. 17 Dated this 7th day of October, 2025. 6 Joka Coun 19 John H. Chun United States District Judge [23] 2A cursory glance at the documents that the Special Master found to be “so obviously privileged” 24 shows that the documents clearly contain attorney work product. See Dkt. # 424-2 at 5-6.