Amazon.com Services LLC v. United States Department of Justice

Opinion

1 2 3 4

5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 9 Petitioner, Case No. C22-1815-JCC-MLP 10 v. ORDER JUSTICE, 12 Respondent, 13 and 14 THE UNITED STATES DEPARTMENT Intervenor-Cross Petitioner. 17 18 20 This matter is before the Court on Petitioner Amazon.com Services, LLC’s (“Amazon”) 21 Motion for Protective/Confidentiality Order (“Amazon’s Motion”). (Pet.’s Mot. (dkt. # 53).) 22 Respondent United States Department of Justice (“DOJ”) filed an opposition (Resp.’s Opp. (dkt. 23 # 69)), Amazon filed a reply (Pet.’s Reply (dkt. # 71)), and DOJ filed a surreply (Resp.’s Surreply (dkt. # 73)). The Court heard oral argument on October 23, 2023, and directed the 1 parties to meet and confer and submit an agreed protective order. (Dkt. # 81.) The parties were 2 unable to agree, and instead, each submitted a proposed protective order. (Dkt. ## 86-87.) 3 Having considered the parties’ submissions, oral argument, the governing law, and the balance of 4 the record, the Court GRANTS in part Amazon’s Motion (dkt. # 53).

6 This action arises under the Financial Institutions Reform, Recovery, and Enforcement 7 Act of 1989 (“FIRREA”), 12 U.S.C. § 1833a, and the civil investigative demand statute, 18 8 U.S.C. § 1968, of the Racketeer Influenced and Corrupt Organizations Act of 1970. DOJ issued 9 FIRREA subpoenas to Amazon between August and December 2022. (Lillywhite Decl. (dkt. 10 # 70) at ¶¶ 6-9.) “DOJ has been closely coordinating its investigation with [the Occupational 11 Safety and Health Administration (“OSHA”)], which has been conducting its own investigation 12 of worker safety hazards at Amazon warehouses.” (Id. at ¶ 5.) DOJ’s investigation concerns 13 whether Amazon makes “misrepresentations to Amazon’s lenders” related to worker safety. (Id. 14 at ¶ 2.)

15 On December 22, 2022, Amazon opened the instant case by filing a Petition pursuant to 16 FIRREA and 18 U.S.C. § 1968(h) to modify the subpoenas to allow additional time for Amazon 17 to comply. (Pet. (dkt. # 1); see also dkt. # 7.) On January 30, 2023, after cross-motions for 18 protective order and to compel production, this Court set a schedule for production with 19 staggered deadlines through July 31, 2023. (Dkt. # 37.) Production continued and extensions 20 were granted as necessary, with certain deadlines extended to October 20, 2023. (Dkt. ## 41, 43, 21 51.) 22 On April 27, 2023, DOJ received a subpoena duces tecum from the Washington Attorney 23 General to produce “ergonomic assessments of Amazon warehouses” for an administrative 1 “ergonomics safety citation” proceeding before Washington’s Board of Industrial Insurance 2 Appeals. (Lillywhite Decl. at ¶ 19; Denerstein Decl. (dkt. # 54) at ¶ 12.) DOJ decided to grant 3 the request but also gave Amazon ten days’ notice of the Washington subpoena on May 19, 4 2023. (Lillywhite Decl. at ¶ 20; Denerstein Decl. at ¶ 12, Ex. 5 (dkt. # 54-5).) Amazon objected

5 to the DOJ’s disclosing documents to the Washington Attorney General. (Denerstein Decl. at 6 ¶ 13, Ex. 6 (dkt. # 54-6).) On May 26, 2023, the Washington Attorney General withdrew its 7 subpoena and, accordingly, on May 30, 2023, DOJ informed Amazon that it would not produce 8 the documents. (Lillywhite Decl. at ¶ 20.) Amazon ultimately produced the ergonomic 9 assessments directly to the Washington Attorney General, subject to a protective order in the 10 Washington state administrative proceeding. (Denerstein Decl. at ¶ 15; see also Lillywhite Decl. 11 at ¶ 22.) 12 DOJ and the Washington Attorney General’s office thereafter retained the same expert, 13 Dr. David Rempel, whom DOJ “repeatedly cautioned” not to disclose information from the DOJ 14 investigation in the Washington proceeding and cautioned the Washington Attorney General not

15 to accept such information. (Lillywhite Decl. at ¶¶ 23-25.) On July 14, 2023, the Washington 16 Attorney General showed Amazon a presentation that referenced a document Amazon had 17 produced to DOJ but not to the Washington Attorney General in the state proceeding. 18 (Denerstein Decl. at ¶ 18.) Amazon notified DOJ, which determined that the Washington 19 Attorney General had erroneously advised Dr. Rempel that it had received all ergonomic 20 assessments provided to DOJ. (Id.; Lillywhite Decl. at ¶¶ 26-30.) The Washington Attorney 21 General and Dr. Rempel agreed not to reference or use any DOJ documents in the state 22 proceeding. (Lillywhite Decl. at ¶ 30.) 23 1 Amazon filed the instant Motion on September 8, 2023. (Pet.’s Mot.) Amazon seeks 2 entry of a protective order to “require the government to maintain the confidentiality of 3 Amazon’s sensitive information and prevent further disclosure to third parties.” (Id. at 2.) 4 Amazon states it needs “to protect Amazon’s commercially-sensitive information, its employees’

5 personal information, and Amazon’s due process rights[.]” (Id. at 8.) 6 On September 12, 2023, pursuant to Local Civil Rule (“LCR”) 7(i), DOJ filed a motion 7 to compel, which was heard telephonically on September 14, 2023. (Dkt. ## 57-65.) As the 8 telephonic motion addressed the same substantive issue as Amazon’s Motion, the Court denied it 9 without prejudice to permit full briefing on Amazon’s Motion. (Dkt. # 65.) The Court entered a 10 provisional confidentiality order governing future document productions and depositions, with 11 an exception for evidence of an imminent crime, until Amazon’s Motion could be adjudicated. 12 (Id.) 13 DOJ contends Amazon’s Motion is time-barred and improperly seeks to prevent 14 intergovernmental cooperation to frustrate investigations. (Resp.’s Opp. at 2.) DOJ further

15 contends Amazon’s pursuit of retroactive protection for material it has already produced is 16 improper, and its blanket designation of its entire production as confidential is prohibited by this 17 Court’s local rules. (Id. at 2-3 (citing LCR 26(c)(2)).) 19 A. Timeliness of Amazon’s Motion 20 There is no dispute that Amazon timely filed a Petition seeking “modification of the 21 subpoenas to establish a schedule for the production of electronically stored information[.]” (Pet. 22 at 1-2.) DOJ contends, however, that Amazon’s instant Motion is untimely because FIRREA 23 provides that motions for protective order must be brought within twenty days after service of a 1 subpoena. (Resp.’s Opp. at 6 (citing 12 U.S.C. § 1833a(g)(2), 18 U.S.C. §§ 1968(h), (j)).) 2 Amazon responds that this Court has continuing jurisdiction based on its timely Petition, and 3 moreover, Federal Rule of Civil Procedure (“Rule”) 81 provides that the Rules apply to 4 proceedings related to a subpoena issued by DOJ. (Pet.’s Reply at 2.) DOJ contends that this

5 Court’s continuing jurisdiction over the timing of production does not extend to Amazon’s effort 6 to seek “entirely new relief” and that Rule 81 does not supersede the statutory time limit. 7 (Resp.’s Opp. at 7; Resp.’s Surreply at 2.) 8 FIRREA authorizes the Attorney General to, “by subpoena, summon witnesses and 9 require the production of any . . . records which the Attorney General deems relevant or material 10 to the inquiry.” 12 U.S.C. § 1833a(g)(1)(C). “The same procedures and limitations as are 11 provided with respect to civil investigative demands in subsections (g), (h), and (j) of section 12 1968 of Title 18 apply with respect to a subpoena issued under this subsection.” 12 U.S.C. 13 § 1833a(g)(2). The incorporated provisions state that, “[w]ithin twenty days after the service of 14 any [civil investigative] demand upon any person, . . . such person may file . . . a petition for an

15 order . . . modifying or setting aside such demand[.]” 18 U.S.C. § 1968(h). 16 In the instant motion, Amazon does not seek to modify the subpoenas and thus is not 17 subject to the twenty-day deadline. Instead, Amazon seeks issuance of an order to protect the 18 confidentiality of the material produced pursuant to the subpoenas. 19 Rule 81 provides that “[t]hese rules apply to proceedings to compel testimony or the 20 production of documents through a subpoena issued by a United States officer or agency under a 21 federal statute, except as otherwise provided by statute, by local rule, or by court order in the 22 proceedings.” Fed. R. Civ. P. 81(a)(5). Because the statutory time limits for modifying the 23 1 subpoenas do not apply here, the Court concludes Amazon’s Motion is not untimely and is 2 governed by the Federal Rules of Civil Procedure. 3 It is well established that, “in appropriate circumstances, [a court] may modify a 4 subpoena it is asked to enforce to incorporate such confidentiality provisions.” Adair v. Rose L.

5 Firm, 867 F. Supp. 1111, 1119 (D.D.C. 1994). “An agency invoking the aid of a court to enforce 6 a subpoena may not tell a court it has no authority to condition or modify the subpoena to protect 7 those whom enforcement of the subpoena may put at risk.” Id. “[W]here the processes of the 8 Court are involved, there must be opportunity for the Court to satisfy itself that the agency’s 9 power will be properly used.” Resol. Tr. Corp. v. KPMG Peat Marwick, 779 F. Supp. 2, 4 10 (D.D.C. 1991). 11 B. Good Cause for Protective Order 12 Under Rule 26, the Court “may, for good cause, issue an order to protect a party or 13 person from annoyance, embarrassment, oppression, or undue burden or expense[.]” Fed. R. Civ. 14 P. 26(c)(1). Good cause “requires a showing ‘that specific prejudice or harm will result’ if the

15 protective order is not granted.” In re Roman Cath. Archbishop of Portland in Oregon, 661 F.3d 16 417, 424 (9th Cir. 2011) (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 17 (9th Cir. 2003)). “[B]road allegations of harm, unsubstantiated by specific examples or 18 articulated reasoning, do not satisfy the Rule 26(c) test.” Id. (quoting Beckman Indus., Inc. v. 19 Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)). “If the party makes this showing, the court 20 must then determine if an order is necessary by ‘balanc[ing] the public and private interests’ at 21 stake.” Ground Zero Ctr. for Non-Violent Action v. U.S. Dep’t of Navy, 860 F.3d 1244, 1260 (9th 22 Cir. 2017) (quoting Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1211 23 (9th Cir. 2002)). “A trial court possesses broad discretion in issuing a protective order and in 1 determining what degree of protection is required.” Sec. & Exch. Comm’n v. R.J. Reynolds 2 Tobacco Holdings, Inc., 2004 WL 3168281, at *9 (D.D.C. June 29, 2004). 3 Amazon seeks to prevent disclosure of its “employees’ personal information” and its 4 “commercially-sensitive information.” (Pet.’s Mot. at 8-9.) There is no dispute that these are

5 important interests deserving of protection. See, e.g., U.S. v. Educ. Mgmt. LLC, 2013 WL 6 1568060, at *9 (E.D.N.Y. Feb. 7, 2018) (noting company’s “very strong interest [in] keeping 7 their trade secrets and related information confidential.”). 8 In addition, Amazon contends disclosure to its governmental “litigation opponents” could 9 endanger its due process rights. (Pet.’s Mot. at 8-9.) Amazon argues “existing protections are 10 insufficient” because DOJ released documents to the Washington Attorney General, with whom 11 Amazon is in active litigation. (Pet.’s Reply at 2.) It appears that, in the end, the Washington 12 Attorney General was able to compel disclosure of most or all the documents sought through its 13 own legal channels without involving DOJ. (See Denerstein Decl. at ¶ 15; Lillywhite Decl. at 14 ¶ 22.) Nevertheless, the episode illustrates it is preferable for civil enforcement agencies to

15 utilize their own proper legal channels, rather than take shortcuts to get information that DOJ has 16 obtained through its legal channels. See Educ. Mgmt. LLC, 2013 WL 1568060, at *9 (“[I]f other 17 agencies wish to obtain the information, . . . they can conduct their own investigation . . . using 18 the statutory and regulatory tools granted any particular agency.”). The presiding official of the 19 Washington proceeding is in the best position to determine what disclosures should be requested 20 in that proceeding. 21 Amazon has identified important interests entitled to confidentiality. Having found 22 specific harm may result from disclosure, the Court balances the public and private interests to 23 determine if a protective order is necessary. Because the issue here is not disclosure to the public 1 but disclosure to civil law enforcement agencies, and the material is not part of the judicial 2 record, the public interests are lessened. Cf. Kamakana v. City & Cty. of Honolulu, 447 F.3d 3 1172, 1180 (9th Cir. 2006) (“[J]udicial records are public documents almost by definition, and 4 the public is entitled to access by default.”); LCR 5(g) (“There is a strong presumption of public

5 access to the court’s files.”). 6 DOJ contends Amazon’s proposed protective order would hamper “efficient and effective 7 law enforcement” and “hampering such interagency coordination would be contrary to the public 8 good.” (Resp.’s Opp. at 11-12.) While wholly unfettered law enforcement may be more efficient 9 as a general proposition, other concerns such as privacy and constitutional rights must be 10 considered.1 Without specific information as to how law enforcement will be hampered, the 11 Court concludes that the interests here weigh in favor of a protective order. 12 The Court finds the analysis in R.J. Reynolds helpful. In that case, the Securities and 13 Exchange Commission (“SEC”) subpoenaed material related to past and future tobacco litigation 14 costs, while DOJ was actively engaged in tobacco litigation against the company. 2004 WL

15 3168281 at *3. The company maintained it would be “seriously prejudiced” if the litigation costs 16 material were provided to its litigation adversary, which had no right to it otherwise. Id. at *10. 17 The SEC argued that its law enforcement function would be “seriously impeded” by any 18 protective order. Id. 19 The district court noted broad statutory language “allow[ing] the SEC to share documents 20 and information with other law enforcement agencies (including DOJ) and regulatory 21

22 1 In its motion to compel, DOJ argued that due to “DOJ’s law enforcement responsibilities, we cannot agree not to alert other agencies if we learn of a crime or other misconduct.” (Dkt. # 60 at 3.) At oral 23 argument on Amazon’s Motion, however, DOJ disavowed any intent to disclose Amazon’s subpoenaed material to criminal enforcement agencies. (See dkt. # 83 at 35:18-36:18.) 1 organizations when the SEC deems it appropriate.” R.J. Reynolds, 2004 WL 3168281 at *12 2 (citing 15 U.S.C. § 78x(c); 17 C.F.R. § 240.24c-1). The court was concerned, however, that the 3 SEC would share information with DOJ without any opportunity for the company “to contest the 4 disclosure as being inconsistent with the SEC’s securities enforcement authority.” Id. at *13. The

5 court required the SEC to obtain court permission ex parte before providing subpoenaed 6 information to DOJ attorneys litigating against the company, to prohibit sharing “in a 7 circumstance inconsistent with the strictures of the SEC’s securities enforcement mandate.” Id. at 8 *12-13. 9 Here, the Court deems it appropriate for Amazon to have an opportunity to challenge 10 potential disclosures as inconsistent with DOJ’s authority. It is perhaps even more appropriate 11 here than in R.J. Reynolds because DOJ points to no statutory language authorizing sharing 12 subpoenaed information with other civil enforcement agencies. 13 DOJ cites Sec. & Exch. Comm’n v. Dresser Indus., Inc., where the en banc D.C. Circuit 14 affirmed the district court, vacating a panel decision that prohibited SEC from giving DOJ any

15 subpoenaed information. 628 F.2d 1368, 1370-71 (D.C. Cir. 1980). The D.C. Circuit noted that 16 DOJ could subpoena “directly whatever materials it might procure indirectly through the SEC” 17 and held that, although SEC and DOJ were engaged in parallel civil and criminal investigations, 18 prior to indictment and without evidence of SEC abusing its power, it was “an inappropriate 19 situation to impose a ‘prophylactic’ rule against cooperation between the agencies.” Id. at 1381, 20 1384, 1387. 21 Again, any statutory language like that noted in Dresser, authorizing SEC to share with 22 DOJ, is lacking here. In addition, unlike in Dresser, there is no showing that an agency DOJ 23 might disclose information to is able to subpoena Amazon’s materials itself because DOJ 1 maintains it may share information with any civil enforcement agency. See Educ. Mgmt. LLC, 2 2013 WL 1568060 at *9 (distinguishing Dresser because “[u]nlike the situation in Dresser, [DOJ 3 does] not propose to share [the company’s] information with any particular agency nor is there a 4 specific subpoena pending in this case.”). And, as the court in Educ. Mgmt. LLC noted,

5 permission such as DOJ seeks here “is far beyond that contemplated in Dresser Industries.” Id. 6 This Court, too, rejects DOJ’s request for “blanket permission in advance of any subpoena that 7 will permit them to disclose any portion of [Amazon’s] confidential information, no matter how 8 sensitive, to any other federal [or other] agency.” Id. 9 DOJ argues no protective order is necessary or appropriate here because “Congress 10 elected not to restrict DOJ’s use of FIRREA subpoena returns.” (Resp.’s Opp. at 2.) When 11 FIRREA was enacted in 1989, Congress incorporated several sections of the civil investigative 12 demand statute enacted in 1970 but chose not to include section (f), which provides that no 13 subpoenaed material “shall be available for examination, without the consent of the person who 14 produced such material, by any individual other than the Attorney General.” 18 U.S.C.

15 § 1968(f)(3); see Resp.’s Opp. at 11. The Court agrees that Congress’ omission indicates it 16 would be inappropriate to require Amazon’s consent before DOJ could disclose information. 17 Establishing appropriate safeguards, however, is not inconsistent with the statutory 18 language. The Court’s authority is not limited to determining whether a subpoena is enforceable. 19 See F.T.C. v. Owens-Corning Fiberglas Corp., 626 F.2d 966, 974 (D.C. Cir. 1980) (“[J]udges 20 should not simply rubber-stamp Commission subpoenas”); U.S. v. Exxon Corp., 628 F.2d 70, 77 21 (D.C. Cir. 1980) (“Since the enforcement of a subpoena is an independent judicial action, and 22 not merely an action ancillary to an earlier agency action, a court is free to change the terms of 23 an agency subpoena as it sees fit.”) (internal citation omitted). “It therefore necessarily falls 1 within the Court’s discretion to provide additional confidentiality protections beyond those 2 offered by the agency when it concludes that the agency, in the exercise of its discretion, has not 3 provided safeguards sufficient to protect the interests of those at risk.” Adair, 867 F. Supp. at 4 1119.

5 Here, by opposing any protective order, DOJ maintains it is entitled to proceed with no 6 safeguards whatsoever.2 Yet even the cases DOJ cites denying motions for protective order do so 7 in part because significant safeguards already apply. See, e.g., U.S. Dep’t of Educ. v. Nat’l 8 Collegiate Athletic Ass’n, 481 F.3d 936, 940 (7th Cir. 2007) (“the internal policies of the 9 Department of Education seek to preserve informants’ confidentiality”); F.T.C. v. Texaco, Inc., 10 555 F.2d 862, 884 (D.C. Cir. 1977) (court “accept[ed,] with some modifications, the FTC’s 11 proposed confidentiality protection”). In the absence of such safeguards here, the Court 12 concludes a protective order is appropriate. Accordingly, the Court addresses the parties’ 13 competing proposed orders. (See Pet.’s Prop. Order (dkt. # 86-1); Resp.’s Prop. Order (dkt. # 87- 14 1).)

15 C. Proposed Protective Orders 16 Both proposed orders provide that DOJ must give Amazon notice before disclosing 17 Amazon’s subpoenaed material. DOJ’s order requires “ten days” for disclosure pursuant to a 18 subpoena or court order and “ten business days” for voluntary disclosure. (Resp.’s Prop. Order at 19 ¶¶ 4.4(a), 7.) Amazon’s order requires “ten business days” for either situation. (Pet.’s Prop. 20 Order at ¶¶ 3.4, 3.5.) The Court concludes ten business days’ notice is appropriate here. See, e.g., 21 Dresser Indus., 628 F.2d at 1389 (“Courts have held an offer of ten days notice before release of 22 2 The Court acknowledges that beginning August 8, 2023, “DOJ agreed to provide Amazon ten days’ 23 notice before it discloses material produced by Amazon in response to a third-party demand.” (Lillywhite Decl. at ¶ 17, Ex. 1 at 2.) No such offer was made with respect to DOJ’s voluntary disclosure to other governmental entities. 1 information to be adequate protection in several cases involving business information.”); 2 Owens-Corning Fiberglas Corp., 626 F.2d at 969 (rejecting further conditions where the 3 government “committed itself to giving the company that submitted a document ten days’ notice 4 before disclosing its contents to anyone outside the [agency]”).

5 The parties agree that if DOJ reasonably believes that giving Amazon notice would 6 “improperly interfere with a valid enforcement purpose,” DOJ may petition the Court to approve 7 the disclosure on an ex parte basis. (Pet.’s Prop. Order at ¶ 3.5(b); Resp.’s Prop. Order at 8 ¶ 4.4(b).) The Court accepts the parties’ agreement on this term as well. See, e.g., R.J. Reynolds, 9 2004 WL 3168281 at *14 (entering protective order “requiring the SEC to obtain, through an ex 10 parte process, advance permission of this Court” before providing subpoenaed information to 11 DOJ attorneys litigating against the company). 12 The Court turns next to the disputed provisions. As further explained below, the Court 13 finds DOJ’s proposed order more useful regarding many of the disputed provisions, with certain 14 exceptions.

15 1. Confidential Information 16 Both proposals protect employees’ personal information and Amazon’s competitive 17 business information. (Pet.’s Prop. Order at ¶ 2.1; Resp.’s Prop. Order at ¶ 2.) Amazon proposes, 18 in addition, to protect: (1) “confidential documents prepared for [its] Board of Directors”; and (2) 19 information it “determines in good faith that, if disseminated, would cause a significant harm to 20 its competitive and financial position.” (Pet.’s Prop. Order at ¶ 2.1.) Amazon further provides 21 that its list is “illustrative, but non-exhaustive[.]” (Id.) 22 The Court concludes these additional proposed categories are not entitled to protection. 23 The fact that a document was prepared for the Board of Directors, alone, does not implicate 1 employees’ privacy, competitive or trade secrets, or due process rights, which are the grounds for 2 the protective order. And the Court finds that what “Amazon determines” to be confidential is 3 not a manageable standard that the Court can apply to any future dispute. Finally, a merely 4 illustrative list is inconsistent with the Court’s Local Civil Rules, which require specificity. (See

5 LCR 26(c) (protective order may not “purport to confer blanket protection” and must extend 6 “only to the limited information or items that are entitled to confidential treatment” (emphasis 7 added)). Accordingly, the Court will use DOJ’s definition of confidential information. 8 2. Information Based on Confidential Information 9 Amazon’s proposed order tracks this Court’s Model Protective Order by conferring 10 protection on information “copied or extracted from” confidential material; “copies, excerpts, 11 summaries, or compilations” of confidential material; and conversations “that might reveal” 12 confidential material. (Pet.’s Prop. Order at ¶ 3.1.) DOJ proposes instead that “information 13 derived from” or “conversations referencing or quoting portions of” confidential material are not 14 protected. (Resp.’s Prop. Order at ¶ 3; see also id. at ¶¶ 4.1, 4.6.)

15 Copies should be treated the same as originals and a compilation is accorded no less 16 protection than its components. Amazon’s remaining provisions, however, even though they are 17 taken from this district’s Model Protective Order, do not fit in this context. Amazon has 18 acknowledged that DOJ is permitted to discuss the substance of its confidential material with 19 other governmental agencies, unlike in a typical litigation context. (See dkt. # 86 at 2 (Amazon’s 20 counsel was “not saying that [the government] can’t call the Washington AG’s office and talk 21 about documents that they’ve seen”) (quoting dkt. # 83 at 39:4-6) (alteration in original).) 22 In this situation, DOJ’s proposed language better describes appropriate limits. To be sure, 23 the language may not be used to elevate form over substance to circumvent the protective order. 1 (See dkt. # 86 at 2 (“[the government] would not be permitted to . . . circumvent the court’s 2 authority by saying, I can’t send you this, but I’d like to read you a document”) (quoting dkt. 3 # 83 at 39:13-16) (alteration in original).) Should Amazon become aware that DOJ is attempting 4 to circumvent the protective order, it should be brought to the Court’s attention.

5 3. Retroactivity 6 Abandoning its prior position that all material produced to date should be designated 7 confidential (see Pet.’s Reply at 3), Amazon proposes that it may designate as confidential 8 material produced prior to the entry of a protective order within sixty days after the order is 9 entered. (Pet.’s Prop. Order at ¶ 2.3(a).) It would do so for documents by providing DOJ a list of 10 Bates numbers, and for deposition testimony by identifying portions of transcripts. (Id. at 11 ¶ 2.3(b).) Documents that are only partially confidential would be reproduced “with appropriate 12 markings” within thirty additional days. (Id. at ¶ 2.3(a).) Amazon further proposes that material 13 produced while the Court’s provisional confidentiality order (dkt. # 65) was in effect and marked 14 “Confidential Treatment Requested by Amazon” shall be treated as confidential. (Id.)

15 DOJ contends retroactive protection is inappropriate (see Resp.’s Opp. at 9-10) but in the 16 alternative proposes that Amazon may identify material produced prior to a protective order as 17 confidential by reproducing it “with appropriate markings” within sixty days of entry of the 18 protective order. (Resp.’s Prop. Order at ¶ 5.2(d).) 19 The Court finds protections for material already produced appropriate based on the 20 parties’ course of conduct. Amazon consistently requested notice prior to any disclosure, and the 21 episode with the Washington Attorney General demonstrates that DOJ expected to, and did, 22 provide such notice. Formalizing the protection that both parties appear to have anticipated 23 should not hamper DOJ’s investigation. 1 Amazon’s proposal is unnecessarily complicated, however, and having multiple methods 2 of denoting confidentiality is more likely to lead to mistakes. The Court finds DOJ’s proposal is 3 simpler and appropriately puts the burden on Amazon to designate and mark confidential 4 material.

5 4. Sharing with OSHA 6 Amazon’s proposed order specifies that DOJ and OSHA may not share Amazon’s 7 subpoenaed material unless Amazon has produced it to both. (Pet.’s Prop. Order at ¶ 3.2.) 8 Amazon’s proposed order would not “prevent DOJ and/or OSHA from communicating in a 9 general manner about the contents of documents or testimony”; however, DOJ and/or OSHA 10 could not “circumvent” the order “by quoting from or otherwise recounting the detailed contents 11 of protected documents or testimony.” (Pet.’s Prop. Order at ¶ 3.3.) 12 In contrast, DOJ’s proposed order “shall not limit DOJ from sharing” Amazon’s 13 subpoenaed material with OSHA. (Resp.’s Prop. Order at ¶ 4.3.) Otherwise, DOJ argues the 14 protective order “would frustrate DOJ’s use of OSHA’s subject-matter expertise” (Resp. Opp. at

15 12) and make it “difficult for DOJ” to provide OSHA legal advice (dkt. # 87 at 9). 16 The Court finds no reason to carve out an exception for sharing with OSHA. The same 17 privacy, trade secret, and due process concerns are present as for any other regulatory agency 18 DOJ might disclose confidential material to. DOJ argues OSHA has agreed to protective orders 19 in pending proceedings in another jurisdiction and “should not be subjected to an overlapping 20 protective order . . . supervised by another judge.” (Dkt. # 87 at 5.) But such other protective 21 order presumably covers material OSHA might disclose to DOJ, unlike the protective order here, 22 which governs material DOJ may disclose to OSHA. The Court rejects DOJ’s carveout provision 23 (Resp.’s Prop. Order at ¶ 4.3). 1 5. Jurisdiction over Future Disputes and Litigation 2 The parties agree that any future filings in the instant action will comply with LCR 3 5(g)(3)(A). (Pet.’s Prop. Order at ¶ 3.6; Resp.’s Prop. Order at ¶ 4.5.) Because DOJ may file a 4 complaint in another jurisdiction based on its investigation, DOJ’s proposal states that the

5 protective order “does not apply to any complaint filed by DOJ arising from its investigation” 6 and notes that “DOJ remains subject to applicable law, including the Trade Secrets Act and the 7 Privacy Act.” (Resp.’s Prop. Order at ¶ 4.6.) 8 Amazon’s proposal states that the protective order shall “remain in effect after the 9 conclusion of this Action, the DOJ Investigation, the OSHA Inspections, and any Resulting 10 Litigation” and this Court “shall retain jurisdiction to hear and resolve any disputes arising out 11 of” the protective order. (Pet.’s Prop. Order at ¶ 5.2.) 12 Amazon’s proposal of perpetual jurisdiction would entangle this Court unnecessarily in 13 any future litigation before other courts. The protective order entered by this Court gives 14 Amazon an opportunity to ensure that any disclosure by DOJ complies with the law—not

15 additional grounds for Amazon to contest disclosure. Accordingly, if DOJ files a complaint in 16 another jurisdiction, the appropriate court will be perfectly capable of adjudicating any disputes 17 arising out of potential disclosures in that action. 18 DOJ’s proposed order provides that “[t]he confidentiality obligations imposed by this 19 Order shall remain in effect until a designating party agrees otherwise in writing or a court orders 20 otherwise.” (Resp.’s Prop. Order at ¶ 10.) This provision is consistent with the Court’s Model 21 Protective Order and avoids unnecessarily interfering with other courts adjudicating future 22 litigation. The Court adopts DOJ’s proposed provisions related to jurisdiction and future 23 litigation. 2 For the foregoing reasons, the Court GRANTS in part Amazon’s Motion (dkt. # 53). DOJ 3 is ORDERED to provide a clean, updated version of its proposed protective order (dkt. # 87-1) 4 that complies with this Order by November 17, 2023.

5 The Clerk is directed to send copies of this Order to the parties and to the Honorable John 6 C. Coughenour. 7 Dated this 15th day of November, 2023. 8 A United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23