[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In its “Order Granting Motion to Compel Disclosure Regarding Preservation Efforts,” a court recently wrote: “For all of the foregoing reasons, plaintiffs motion to compel disclosures regarding Amazon’s preservation[] efforts … is GRANTED. Amazon shall, within fourteen days of the date of this Order, produce the litigation hold notices sent regarding this litigation (if different hold notices were sent at different times or to different people, Amazon shall identify which individuals received which notice) and provide the preservation information described in plaintiffs’ reply memorandum” for seven employees.  Greenberg v. Amazon.Com, Inc., 2025 WL 2639221 (W.D. Wash. Sep. 12, 2025)(emphasis added).

Plaintiffs alleged price gouging by Amazon during the COVID-19 pandemic. The Greenberg court wrote that: “Amazon concedes that some documents produced, received, or maintained by employees who were key players in Amazon’s efforts to manage pricing issues during the COVID-19 pandemic were deleted under its normal document retention policies.”

Since December 2015, when Fed.R.Civ.P. 37(e) was amended, reliance on the old “safe harbor” of loss due to “the routine, good-faith operations of an electronic information system” has been insufficient to defeat spoliation claims. Cf. Maryland Supreme Court Rejects Proposed Sanctions Rule Paralleling Fed.R.Civ.P. 37(e)(Nov. 3, 2023); Felder Part 4 of 4: Was the Felder Defendant’s 14-Day Video Overwriting Policy Defensible? (Aug. 22, 2024).

THE PENDING ISSUE

At this procedural juncture, the Greenberg plaintiffs did not seek sanctions. Instead, they filed a motion to compel disclosure regarding Amazon’s document preservation efforts – “discovery on discovery” or satellite discovery.

Amazon produced some of the requested information.  At issue was “plaintiffs’ demand for copies of the litigation hold notices employees received and preservation information regarding [seven] employees who might be suitable replacement custodians….” 

In my words, plaintiffs were exploring whether there was satisfactory secondary evidence pursuant to Fed.R.Civ.P. 37(e)(sanctions are available only if missing information “cannot be restored or replaced”); Secondary Evidence of Missing Video Permitted (Dec. 10, 2023);  Secondary Evidence as a “Gap Filler” (Mar. 11, 2022); Satisfactory Secondary Evidence Prevents Sanction (Sep. 4, 2021).

In the Greenberg court’s words: “But the issue here is whether plaintiffs should be given some insight into what was kept and what was lost, not whether the losses caused prejudice.”  It wrote: “All that remains is plaintiffs’ request for production of the case-specific litigation hold notices and preservation information for a handful of additional employees Amazon identified as potential custodians in its ESI disclosures.”

AMAZON’S FIVE DEFENSES

Amazon presented five defenses, none of which succeeded:

Amazon asserts that any failure to preserve documents was either reasonable or insignificant. In particular, Amazon argues that (a) it had no duty to preserve the documents at issue because it was unaware of their relevance until plaintiffs amended their complaint in 2024 and/or the ESI custodians in this case were identified, (b) it timely triggered an automated back-end preservation system that ensured that all custodial ESI was retained from the date the hold was initiated, (c) any failure to preserve documents was inconsequential in light of Amazon’s production in this case, and (d) some of the employees plaintiffs identified as custodians or potential custodians do not have relevant or unique information, making the loss of their documents unimportant. In addition, Amazon asserts that the motion to compel the disclosure of information regarding preservation efforts is premature because the meet and confer process was not yet complete.

Greenberg v. Amazon.Com, Inc., 2025 WL 2639221 (W.D. Wash. Sep. 12, 2025).

AMAZON’S “WE DIDN’T KNOW THE SCOPE” ARGUMENT

The court wrote: “Amazon’s first argument — that it did not know and could not reasonably have known that documentary evidence regarding its handling of pricing issues during the COVID-19 pandemic would be relevant to plaintiffs’ claims — is not persuasive.”

In the Complaint, plaintiffs alleged price gouging.  Although California law made only a 10% increase during an emergency “presumptively unlawful,” the court stated that that the code provision “ did not convert the claims into a mathematical exercise to be resolved solely by reference to cost and pricing data.” It wrote that “large price increases” were occurring and “were clearly at issue.” 

The Complaint was filed in April 2020.  Therefore: “The Court finds that the duty to preserve evidence in the possession of employees who managed pricing issues during the pandemic (including the duty to suspend normal document retention/deletion policies as to those employees) arose in April 2020.”

AMAZON COULD NOT WAIT UNTIL AN ESI PROTOCOL WAS FINALIZED

The court wrote that: “Amazon offers no support for the proposition that the duty to preserve did not attach until the parties had negotiated an agreement regarding the discovery of electronically-stored information (‘ESI’) and identified the custodians whose records would be searched. Such a delay would eviscerate the duty to preserve, resulting in the loss of evidence during the months (or years) it takes to negotiate ESI protocols and identify custodians.”

AMAZON’S EFFORTS WERE TOO LITTLE, TOO LATE

Amazon produced a document showing which employees were notified of the duty to preserve and when. Other courts have held that parties must disclose the identity of recipients of litigation hold notices. 8 Lessons Learned – Part IV – Disclosure of Recipients of Litigation Hold Notices (May 9, 2024). In one decision, the court held that the information was not work product and a party need not show any predicate for this limited “discovery on discovery.”  Id.

Here, however:

No employees received notice of this litigation between April 21, 2020, the date McQueen was filed, and October 12, 2020. Six employees received a case-specific litigation hold notice on October 12, 2020. Sixty-four other employees were notified that they should preserve documents between December 19, 2022, and March 10, 2025. That means that for more than two years, only six Amazon employees were required to preserve documents related to plaintiffs’ claims. [emphasis added].

Id.

In response to Amazon’s defense that it had 1,200 pricing employees and that it need not preserve a crippling amount of ESI, the court wrote:

We are not, however, dealing with the failure to issue litigation holds to a few employees on the periphery of Amazon’s pricing team, the loss of a certain type of file or document that slipped through the hold protocols, or even a hold notice that was woefully insufficient. Amazon simply failed to notify anyone of this litigation and the preservation duties it triggered for six months after the complaint was filed and then notified only six employees. Two years and eight months passed before Amazon thought to ask anyone else to preserve their documents, including some of the people Amazon later identified as custodians who were most closely involved in managing pricing issues during the pandemic. The Sedona Principles do not excuse Amazon’s failures in this case. [emphasis added].

Id.

AMAZON’S “NO HARM, NO FOUL” ARGUMENT WAS REJECTED

Amazon asserted lack of prejudice: “Amazon argues that its failure to timely issue litigation holds for this case was of no moment because some of the employees who ultimately received notices were subject to holds for other litigation…, and those holds triggered an automated back-end preservation of their documents.”

The court stated:

These assertions are not accurate. Amazon’s automated system preserves only a custodian’s email, Slack, and Chime records…. Other materials from an employee’s electronic devices, desktops, and servers, including Word documents, presentations, notes, spreadsheets, PDFs, etc., were not automatically preserved. Instead, they would be subject to Amazon’s general document retention/deletion policies unless and until the employee received a case-specific hold notice telling them what kind of information they must retain.  While the automated preservation system might catch documents that were shared through email, Slack, or Chime, Amazon failed to take steps to preserve various sources of ESI held by relevant custodians.

Id.

Further, it wrote: “Even if the automated hold did preserve ‘all custodial ESI’ (it does not), only twenty-one employees were on litigation holds for other litigation, and only ten of them were subject to the hold during the critical April 2020 to October 2020 period.”

AMAZON’S VOLUMINOUS PRODUCTION DID NOT SUFFICE

Amazon produced 75,740 documents. Some custodians did not delete their ESI even in the absence of a litigation hold notice.  Some deleted ESI was produced from other custodians.

Nevertheless, the court wrote that this “does not change the fact that Amazon failed to take steps to preserve years’ worth of records from the individuals who were most closely involved in managing its pricing issues during the pandemic.”

The court explained: “At this point, plaintiffs are attempting to understand the scope of any losses and to develop a work around, if possible. Hopefully the bulk of relevant documents can be recovered as attachments to electronic communications or from other employee files, as Amazon suggests.”

On these facts, plaintiffs were entitled to discovery on what was kept and lost, and whether the loss was prejudicial.  In my words, they were engaging in Rule 37(e) discovery to determine if ESI “that should have been preserved in the anticipation or conduct of litigation,” and that was “lost because a party failed to take reasonable steps to preserve it,” can “be restored or replaced through additional discovery….”  That factual question is a predicate to seeking sanctions under Rule 37(e)(1) or (e)(2).

AMAZON’S RELEVANCE ARGUMENT FAILED

Amazon argued that three of the custodians were data scientists who built and monitored pricing systems. It asserted that discovery from them was not warranted. 

The court disagreed: “These builders would likely have received instructions that could be relevant to plaintiffs’ claims, particularly if they showed what problems Amazon recognized, how it planned to address them, and the goals/outcomes it wanted the systems to achieve. Doubts regarding the relevance or uniqueness of the documents in the possession of these three employees does not materially impact the analysis of whether plaintiffs are entitled to disclosures regarding Amazon’s preservation efforts.” [emphasis added].

In my view, it should rarely be sufficient to argue Trust Me:  Nothing in the Missing Video Would Have Helped You! (Sep. 10, 2024).

DISCOVERY OF LITIGATION HOLD NOTICES WAS ORDERED

The court wrote that: “Plaintiffs acknowledge that litigation hold notices are normally protected by the attorney-client privilege.”

I disagree and have argued to the contrary.  The Hon. P. Grimm (ret.), M. Berman, et al., “Discovery about Discovery: Does the Attorney-Client Privilege Protect All Communications Relating to Preservation of Potentially Relevant Informaiton?” 37 U.Balt.L.Rev. 413 (2008). The article asserts that, because litigation hold notices are compelled by common-law, they are not confidential communications seeking legal advice, and it suggests appropriate drafting considerations and other precautions.

Nevertheless, even if a litigation hold notice is privileged, the Greenberg court wrote: “Disclosure of the hold notices may nevertheless be appropriate where there is reason for concern that evidence has been lost.” [quotation and citation omitted]. The foregoing law review article and numerous cases are in accord.

On the facts presented:

There is no dispute that evidence has been lost. Plaintiffs will, therefore, “be allowed to take the ‘initial step’ of discovering the content of the litigation hold notice …so that they can ‘investigate and possibly prove spoliation’ ” and determine whether the loss was willful or merely negligent.

Id.

While Amazon argued that plaintiffs had expressed only a “passing interest” in some of the custodians, the court wrote: “Given Amazon’s failure to take steps to preserve evidence from the first three quarters of 2020 and its previous designation of custodians whose documents had been destroyed, full disclosure of preservation information regarding all of the potential custodians will enable plaintiffs to evaluate their remaining options for maximizing productions from the key pandemic period.”

See generally:

• Spoliation Discovery Permitted (Feb. 23, 2025);
• “Discovery on Discovery” Denied in “It Ends With Us” Lawsuit (Sep. 5, 2025);
• “Discovery on Discovery” Permitted (Sep. 4, 2025);
• Guidelines for “Discovery on Discovery” (Aug. 5, 2025);
• Discovery of Litigation Hold Notices Ordered (Apr. 22, 2025);
• Another Approach to Drafting and Discovery of Litigation Hold Notices (Feb. 21, 2025);
• Request for “Discovery on Discovery” Was Overbroad; Uber Deponent Was Ordered to Bring Uber Laptop to Deposition; Discovery About Uber Information Governance Training Resolved (Jul. 4, 2025);
• 8 Lessons Learned – Part IV – Disclosure of Recipients of Litigation Hold Notices (May 9, 2024); 
• Are Litigation Hold Notices Discoverable? (Mar. 5, 2022);  
• When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective (Aug. 9, 2021);  
• When is a Litigation Hold Notice Discoverable? (Dec. 1, 2020); ,
• Discovery of Steps Taken to Implement a Litigation Hold is Permitted (Mar. 26, 2022); 
• Discovery on Discovery – Steps Taken to Produce Documents (Jun. 14, 2022).
• D. Austin, Portions of Litigation Hold Notices Not Privileged, Court Rules (Feb. 11, 2025).
• The Hon. Craig B. Shaffer, “Deconstructing ‘Discovery About Discovery,’’ 19 Sedona Conf. L.J. 215 (2018).

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.