TL;DR: In Medal et al. v. Amazon.com Services LLC, the Western District of Washington limited a party’s leverage to compel or manufacture Fed. R. Evid. 502(d) clawback protections in a dispute over a protective order and ESI protocol. The court declined to impose a mandatory 502(d) clawback provision absent agreement, and it refused to force production of responsive documents that did not “hit” on search terms. Practitioners should expect more negotiated, term-specific protective orders and should build discovery playbooks that rely on traditional 502(b) protections, explicit clawback language only where agreed, and carefully calibrated ESI protocols. This development, decided in late April and mid-May 2026, underscores the continuing primacy of agreement-driven discovery terms in complex cases and highlights the ongoing role for practical trial-readiness training to navigate evolving protective orders.
Background and procedural posture
Medal et al. bring a consumer protection dispute against Amazon.com Services LLC in the Western District of Washington, case number 2:23-cv-01975-JHC. The dispute centered on a protective order and an Electronically Stored Information (ESI) protocol, with the parties unable to reach agreement on a proposed clause implementing Fed. R. Evid. 502(d) and on the terms of an ESI protocol. The core bone of contention was whether the protective order should include a clawback provision under Rule 502(d), which would govern the waiver of privilege if privileged material were disclosed in discovery, and whether the ESI protocol should adopt a specific set of search-term based production rules. The court’s order, entered in late April and reaffirmed in May 2026, directs the parties to file a joint stipulation by mid-May 2026 refining the protective order and ESI protocol, with the model protective order’s Section 9 (the 502(d) clause) omitted absent agreement. The docket entries and the orders are publicly available in the WD Wash record for Medal v. Amazon.com Services LLC, including Document 129 (April 30, 2026) and Document 135 (May 15, 2026). (cases.justia.com)
What the court held
No mandatory 502(d) provision without consent. The court clearly held that a Fed. R. Evid. 502(d) clawback provision is not imposed by operation of the model protective order and cannot be forced on the parties absent their agreement. This aligns with the default logic of Rule 502, where 502(b) protections apply unless the parties contract around them. The court thus declined to compel a 502(d) provision as a standard term in the protective order. The result was that the protective order would proceed with the 502(b) framework and without a mandatory clawback clause, unless the parties agreed otherwise. (law.justia.com)
ESI Protocol terms not dictated by default. The court likewise rejected forcing the parties into a particular ESI protocol without mutual assent. The order contemplates adopting a protocol derived from the district’s model ESI terms, but the court accepted the parties’ joint submission to modify terms collaboratively rather than impose a fixed regime. The decision thus reinforces the importance of negotiated, case-specific discovery mechanics rather than one-size-fits-all templates. (law.justia.com)
Timetable for a joint stipulation. The court directed the plaintiffs and defendant to file a stipulated motion by May 15, 2026 outlining agreed terms for the protective order and ESI Protocol, with the understanding that the 502(d) clawback provision would be omitted unless explicitly agreed. This creates a practical deadline for counsel to align on the scope of privilege protections, discovery burdens, and the mechanics of production. (law.justia.com)
Practical effect for the case. For Medal and similar cases, the ruling preserves leverage for negotiated solutions and emphasizes careful, targeted tailoring of protective orders to the case’s privilege landscape. It also signals caution against unilateral or ad hoc shelter for privileged materials through clawback provisions, unless both sides agree to such terms. The court’s approach thus pushes litigants toward explicit, mutually agreed language concerning privilege and discovery workflows. (law.justia.com)
Practical implications for trial lawyers
Expect more negotiated protective orders. Counsel should anticipate requiring explicit, in-advance agreement on 502(d) clawback provisions and ESI protocols in complex matters. This means drafting and negotiating protective orders that spell out when clawbacks apply, what constitutes “disclosure,” and the procedure for returning or sealing privileged materials. Courts appear receptive to negotiation rather than wholesale adoption of model terms. (law.justia.com)
Privilege handling remains subject to default 502(b). Absent agreement to a 502(d) clawback, the default rule remains 502(b), which governs discretionary waiver and stays protection over privileged materials upon inadvertent disclosures. Litigants should be prepared to demonstrate reasonable steps to prevent disclosure and timely measures to rectify disclosures, as required by Rule 502(b). The Medal decision underscores the importance of explicit consent for any deviations from the default. (law.justia.com)
ESI protocols demand case-specific calibration. Because the court refused to mandate a particular ESI protocol, trial teams should invest in a tailored protocol that accounts for custodians, search terms, data scope, proportionality, and the burden of production. This includes clear definitions of search terms, custodian lists, and acceptable redactions, all anchored to case needs rather than generic templates. (law.justia.com)
Implications for trial strategy and readiness. As discovery shapes what is and is not admissible or discoverable, trial teams must adjust investigative plans, objection theory, and trial-readiness drills accordingly. A robust preparation program should include practice on arguing for or against clawback conditions, defending the reasonableness of search strategies, and presenting privilege issues in opening statements and at trial if warranted. Tools such as structured trial simulations and evidence drills can help attorneys rehearse these postures under time pressure. (Training resources from Objection Academy illustrate concrete ways to rehearse objections, privilege issues, and the admissibility implications of discovery choices.) (objectionacademy.com)
Practical next steps for your case. If litigating in a court that follows Medal’s approach, counsel should:
Prepare a draft protective order that omits Section 9 of the model order unless both sides agree to 502(d).
Develop a joint ESI Protocol proposal that reflects jurisdictional norms and case-specific needs, including search terms, custodians, data proportionate to the case, and redaction standards.
Build a plan for privilege logs and the handling of inadvertently produced material that aligns with the default 502(b) framework unless a 502(d) agreement is reached.
Incorporate a training program that emphasizes objections, privilege handling, and cross-examination strategy around discovery issues.
Objection Academy’s role in adapting to evolving discovery rules. For litigators preparing for the post-Medal discovery landscape, practice environments that focus on 502(b) and 502(d) dynamics, as well as ESI protocol foundations, can translate into faster on-record decision-making in the courtroom. A disciplined practice path for objections, foundation, and privilege issues supports more confident advocacy when protective orders and discovery disputes surface in high-stakes litigation. (objectionacademy.com)
Takeaways for contemporary trial practice
- Discovery governance remains a collaborative exercise. Courts are not uniformly dictating clawback terms; instead, they reward careful negotiation and precise tailoring of protective orders and ESI protocols to the facts of the case.
- The quality of protective orders and discovery plans in the early phase of litigation can significantly influence later trial-readiness and admissibility issues. Early, negotiated terms can reduce disputes later on and clarify the evidentiary landscape for witnesses and documents.
- Practical training and simulations that focus on discovery practice are increasingly valuable. Tools that provide structured drills around 502(b) and 502(d) concerns, as well as ESI protocol exercise, can produce tangible courtroom benefits.
Sources
- Medal et al. v. Amazon.com Services LLC, No. 2:23-cv-01975-JHC, Western District of Washington. Document 129 (April 30, 2026) and Document 135 (May 15, 2026). Justia docket and documents. (cases.justia.com)
- Medal et al. v. Amazon.com Services LLC, WD Wash, 2:23-cv-01975-JHC. Order addressing protective orders and ESI protocol; discussion of 502(d) clawback language and negotiation process. (law.justia.com)
- Supreme Court of the United States. Proposed Amendments to the Federal Rules of Evidence, April 8, 2026. frev26_da3i.pdf. (supremecourt.gov)
- Objection Academy. Federal Rule of Evidence Amendment Expands Not Hearsay to Substantive Use of Prior Inconsistent Statements, April 30, 2026, and related training guidance. (objectionacademy.com)
Note: This analysis reflects concrete orders and publicly available docket materials as of late April to mid-May 2026 and is intended to inform practical trial-lawyering decisions in the near term.