The FTC’s antitrust lawsuit against Amazon, filed in January 2023 and allowed to proceed by a federal judge in October 2024, has entered a heated discovery dispute over the company’s use of attorney-client and work-product privilege to withhold evidence. On May 9, 2025, a court ordered Amazon to re-review nearly 70,000 documents it had labeled privileged; regulators argued that most were improperly withheld, and Amazon later withdrew privilege claims on about 92 percent of them.
According to the FTC, Amazon intentionally mischaracterized non-legal internal communications as privileged—for example, instructing staff to copy legal counsel on routine emails—and even referred to founder Jeff Bezos as “chief dark arts officer” in an internal memo about subscription-enrollment tactics. Regulators say the concealed documents include evidence of involuntary Prime sign-ups and search-result manipulations that could demonstrate anti-competitive conduct.
The FTC now seeks a 90-day extension for fact discovery to review the newly disclosed materials and is asking the court to shift the cost of the re-review onto Amazon. Amazon denies any intentional wrongdoing and is contesting both the extension and cost-shifting motion. This procedural battle follows the court’s October 2024 decision to let the case move forward despite Amazon’s motion to dismiss, keeping scrutiny on the company’s dominance in markets generating over $200 billion in annual revenue.
Proper Scope of Legal Privilege
Attorney-client and work-product protections are essential for candid legal advice, but misuse—such as blanket assertions without individualized justification or instructing employees to use ephemeral messaging apps to evade document preservation—can obstruct regulators’ fact-finding. In filings, the FTC demanded access to Amazon’s litigation-hold policies, preservation notices, and instructions on ephemeral messaging to assess whether records destruction constituted deliberate spoliation of evidence.
Safeguards to Balance Confidentiality and Accountability
- Detailed Privilege Logs
Require date, author, recipients, and specific privilege basis for each document. - In-Camera Review
Allow a neutral judge to examine disputed materials privately. - Clawback Agreements
Define narrow procedures under Federal Rule of Civil Procedure 26(b)(5) for returning inadvertently disclosed information. - Sanctions
Impose penalties for improper privilege assertions or failure to preserve relevant communications. - Court-Mandated Litigation Holds
Enforce strict preservation orders with remedies for spoliation where necessary.
This dispute highlights the tension between corporate confidentiality and enforcement of antitrust and consumer-protection laws. As digital platforms grow in size and influence, regulators are likely to push for clearer privilege-logging standards and stronger judicial oversight to prevent misuse of legal protections that could undermine the public interest.
Questions for Further Consideration
- What mechanisms should be standard in privilege logs to prevent over-broad claims?
- How can courts ensure timely and transparent discovery without chilling legitimate attorney-client communications?