Caroline Wilmuth, Katherine Schomer, and Erin Combs v. Amazon.com Inc.

• Court: District Court, W.D. Washington
• Decided: October 31, 2025
• Docket: 2:23-cv-01774
• Status: Unknown

Opinion

1 2

3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 CAROLINE WILMUTH, KATHERINE CASE NO. 2:23-cv-01774-JNW 8 SCHOMER, and ERIN COMBS, ORDER 9 Plaintiff, 10 v. 11 AMAZON.COM INC., 12 Defendant. 13 1. INTRODUCTION 14 This putative class action involves alleged employment discrimination by 15 Defendant Amazon.com, Inc. based on sex. Plaintiffs seek compensatory and 16 punitive damages, including backpay and front pay. 17 Two issues are before the Court. First, Amazon challenges Plaintiffs’ 18 privilege log, which identifies 41 withheld documents described as: (1) 19 communications between Plaintiffs and witnesses regarding conversations with 20 counsel; (2) communications between the named Plaintiffs about litigation strategy; 21 and (3) communications between Plaintiffs and putative class members seeking 22 legal advice. Second, Amazon seeks Plaintiffs’ federal income tax returns from 2020 23 1 through the present, it says, to assess damages and mitigation. Plaintiffs contend 2 they have provided enough information about their earnings through 1099s, W-2s,

3 and sworn discovery responses. 4 Amazon moves to compel these documents. Dkt. No. 74. After considering the 5 briefing, the record, and the pertinent law, the Court is fully informed and DENIES 6 in part and RESERVES in part, as discussed below. 7 2. DISCUSSION 8 2.1 Legal standard. 9 Generally, “parties may obtain discovery regarding any nonprivileged matter 10 that is relevant to any party’s claim or defense and proportional to the needs of the 11 case.” Fed. R. Civ. P. 26(b)(1). Relevance is construed broadly to include “any matter 12 that bears on, or that reasonably could lead to other matter that could bear on, any 13 issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 14 340, 351 (1978). The party seeking discovery bears the initial burden of establishing 15 relevance. Mi Familia Vota v. Hobbs, 343 F.R.D. 71, 81 (D. Ariz. 2022). Once 16 relevance is established, the party resisting discovery must show why discovery 17 should not be allowed by “clarifying, explaining, and supporting its objections.” 18 Brown v. Warner, No. C09-1546-RSM, 2015 WL 630926, at *1 (W.D. Wash. Feb. 12, 19 2015). 20 In determining proportionality, the Court considers “the importance of the 21 issues at stake in the action, the amount in controversy, the parties' relative access 22 to relevant information, the parties' resources, the importance of the discovery in 23 1 resolving the issues, and whether the burden or expense of the proposed discovery 2 outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).

3 District courts have broad discretion in determining relevancy and managing 4 discovery. Avila v. Willits Env’t Remediation Tr., 633 F.3d 828, 833 (9th Cir. 2011); 5 Survivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005). 6 2.2 The Court grants in part the motion to compel Plaintiffs’ tax returns. 7 Tax returns may be subject to discovery, but “the Ninth Circuit recognizes 8 that unnecessary public disclosure of tax returns must be limited to encourage 9 taxpayers to file complete and accurate returns.” Int’l News, Inc. v. 10 Deep 10 Clothing, Inc., Case No. C18-0302-JCC, 2020 WL 1890611, at *2 (W.D. Wash. Apr. 11 16, 2020) (citation modified) (quoting Premium Serv. Corp. v. Sperry and 12 Hutchinson Co., 511 F.2d 225, 229 (9th Cir. 1975)). Courts in this district apply a 13 two-part test to determine whether a party’s tax returns should be disclosed: “the 14 Court may only order the production of [a party’s] tax returns if they are relevant 15 and when there is a compelling need for them because the information sought is not 16 otherwise available.” Id. (citing Alaskan Anvil, LLC v. Majestik Fisheries, Case No. 17 C13-5702-BJR, 2014 WL 12674380, at *2 (W.D. Wash. 2014) (denying plaintiff's 18 request for production of the defendant’s tax returns because the plaintiff’s claims 19 did not depend on information contained in the tax returns and plaintiff did not 20 demonstrate a “compelling need” for the information in the returns)); Kayner v. City 21 of Seattle, No. C04-2567-MAT, 2006 WL 482072, at *1 (W.D. Wash. Feb. 27, 2006). 22 23 1 Amazon argues that it needs Plaintiffs’ tax returns because Plaintiffs’ 2 earnings information is relevant to their alleged damages and mitigation. Dkt.

3 No.82 at 11. In its reply brief, Amazon narrowed its request to seek only “tax 4 returns filed after their separation from Amazon[.]” Dkt. No. 82 at 11 (emphasis in 5 original). Amazon is correct to abandon its request for tax returns covering the 6 period of Plaintiffs’ employment with Amazon. Those returns are not relevant to 7 Plaintiffs’ post-termination mitigation efforts, and Amazon already possesses 8 comprehensive information about Plaintiffs’ earnings during their employment

9 through its own payroll records. 10 On the record before the Court, Amazon has, however, established both 11 relevance and compelling need for Plaintiffs’ post-termination tax returns. 12 Plaintiffs’ mitigation efforts are directly relevant to their damages claims, and tax 13 returns provide comprehensive income information. While Plaintiffs have produced 14 W-2s, 1099s, and interrogatory responses attesting to earnings, courts have 15 recognized that these documents “do not summarize income information in the

16 same manner as tax returns” and may omit categories of income relevant to 17 damages calculations. Dowd v. City of Los Angeles, No. 2:11-cv-00657-DSF-AJW, 18 2012 WL 13066523, at *2 (C.D. Cal. July 2, 2012); see also Besco v. City of Longview, 19 No. 3:15-CV-05493-RJB, 2016 WL 1077266, at *3 (W.D. Wash. Mar. 18, 2016) 20 (“Plaintiff has placed lost earnings in controversy, and although he has provided 21 income information regarding [other sources of income], there may be additional

22 relevant information contained within his tax returns.”); Devs. Diversified Realty 23 Corp. v. Vidalakis, No. C08-0873RSM, 2008 WL 11509305, at *3 (W.D. Wash. July 1 22, 2008) (“The Court is persuaded that the tax returns are relevant and that the 2 information sought is not available from another source.”).

3 Plaintiffs’ interrogatory responses describe their income sources in general 4 terms but do not provide the level of detail necessary for Amazon to confirm and 5 verify their mitigation efforts. Self-employment income, consulting fees below 6 reporting thresholds, business income from pass-through entities, and other sources 7 may not appear on W-2s or 1099s but are properly considered in assessing 8 mitigation. Under these circumstances, Amazon has shown a compelling need that

9 the existing discovery does not satisfy. 10 Accordingly, the Court GRANTS IN PART Amazon’s motion to compel 11 Plaintiffs’ tax returns. Plaintiffs must produce their federal income tax returns 12 (Forms 1040 and all schedules) filed after their separation from Amazon within 14 13 days of this order. 14 Plaintiffs may redact information related to (1) spouses or other household 15 members, and (2) information unrelated to earned income, including itemized

16 deductions, credits, exemptions, and investment income or losses. See Schloss v. 17 City of Chicago, No. 17 C 8090, 2020 WL 12178208, at *4 (N.D. Ill. Oct. 2, 2020) 18 (permitting similar redactions). 19 2.3 Correspondence between named Plaintiffs and witnesses regarding the case and conversations with counsel are protected by the work- 20 product doctrine. 21 Plaintiffs withheld several documents described on their privilege log as 22 “LinkedIn messages between Plaintiff and witness regarding witness’s 23 1 conversations with counsel,” or described in a substantially similar fashion. Dkt. 2 No. 75-6 at 2–4. Plaintiffs assert these communications are shielded from discovery

3 by the attorney-client privilege, the work-product doctrine, and the common-interest 4 doctrine. 5 To begin, Amazon argues that Plaintiffs’ privilege log descriptions lack 6 sufficient detail to show that any privilege applies. When a party withholds 7 responsive documents on the basis of privilege, “[t]he party asserting an evidentiary 8 privilege has the burden to demonstrate that the privilege applies to the

9 information in question.” Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 10 1988). A proper privilege log must be “sufficiently detailed for the opposing party to 11 assess whether the assertion of privilege is justified.” Rodriguez v. Seabreeze Jetlev 12 LLC, 620 F. Supp. 3d 1009, 1023 (N.D. Cal. 2022) (citation omitted). 13 The Court agrees that some of Plaintiffs’ log descriptions would benefit from 14 greater specificity. But Plaintiffs have since supplemented the log with a 15 declaration providing more context. See Dkt. No. 81. While a more detailed privilege

16 log in the first place would have been preferable, the log combined with the 17 supporting declaration provides enough information to assess Plaintiffs’ privilege 18 claims. 19 Turning to the merits, “[t]he work product doctrine protects from discovery 20 documents and tangible things prepared by a party or his representative in 21 anticipation of litigation.” Schoenmann v. Fed. Deposit Ins. Co., 7 F. Supp. 3d 1009,

22 1013 (N.D. Cal. 2014) (quoting United States v. Richey, 632 F.3d 559, 567 (9th Cir. 23 2011)). It “protect[s] against disclosure of the mental impressions, conclusions, 1 opinions, or legal theories of a party’s attorney or other representative concerning 2 the litigation.” Fed. R. Civ. P. 26(b)(3)(B); see Kintera, Inc. v. Convio, Inc., 219

3 F.R.D. 503, 507 (S.D. Cal. 2003). In determining whether the documents were 4 prepared in anticipation of litigation, courts should consider whether the documents 5 “would not have been generated but for the pendency or imminence of the 6 litigation.” Id. at 510 (internal quotation marks omitted). 7 Plaintiffs’ privilege log describes these messages as concerning “Plaintiff and 8 third-party witness[es]” communications about “witness’ conversations with

9 Counsel” or “reflecting attorneys’ mediation and case strategy.” Dkt. No. 75-6 at 2– 10 4. Plaintiffs’ supporting declaration states these are “correspondences between 11 Plaintiffs and third-party witnesses that we interviewed as part of our investigation 12 and litigation of this matter[.]” Dkt. No. 81 ¶ 4. The declaration adds that counsel 13 “interviewed numerous witnesses and chose, for some, [to] prepare witness 14 statements for use at private mediation.” Id. ¶ 5. From Plaintiffs’ representations in 15 their privilege log and the declaration of counsel, it is clear that these

16 communications “would not have been generated but for the pendency or imminence 17 of litigation.” Kintera, 219 F.R.D. at 516. The communications arose from and relate 18 to counsel’s investigation of this matter and witness interviews conducted for 19 litigation purposes. Plaintiffs’ burden being met, these communications are 20 protected under the work-product doctrine. 21 The doctrine provides qualified protection. Id.; Fed. R. Civ. P. 26(b)(3)(A)(i),

22 (ii). A party may obtain protected materials by showing that (1) “they are otherwise 23 discoverable under Rule 26(b)(1),” and (2) that the party seeking discovery “has a 1 substantial need for the materials to prepare its case and cannot, without undue 2 hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P.

3 26(b)(3)(A)(i), (ii). 4 Amazon has not shown a substantial need for these communications or that 5 it cannot obtain the same information through other means like deposing Plaintiffs. 6 See Fed. R. Civ. P. 26(b)(3)(A)(i), (ii). Nor has Amazon identified any information it 7 needs that cannot be obtained through witness depositions. 8 Plaintiffs did not waive work product protection by exchanging

9 communications with non-party witnesses. “[O]ne of primary functions of the work 10 product doctrine is to prevent a current or potential adversary in litigation from 11 gaining access to fruits of counsel’s investigative and analytical effort, and 12 strategies for developing and presenting the client’s case[.]” Kintera, 219 F.R.D. at 13 508. Therefore, “an analysis of an alleged waiver of work product protection by 14 virtue of a party’s disclosure, must focus on whether the disclosure at issue 15 substantially increased the likelihood that a current or potentially adverse party

16 would gain access to disputed documents.” Id. Communications with non-party 17 witnesses aligned with Plaintiffs’ interests did not increase Amazon’s likelihood of 18 accessing these documents or the strategic information they contain. Thus, no 19 waiver has occurred. 20 Accordingly, the Court concludes that the following documents, as identified 21 on Plaintiffs’ privilege log, Dkt. No. 75-6, are protected by the work-product doctrine

22 and not subject to discovery: 5, 8, 9, 16, 24, 30, 32, 37, and 41. Because the Court 23 finds work product protection applies to these documents, it need not address 1 Plaintiffs' alternative assertions of attorney-client privilege or common-interest 2 doctrine as to this category of documents.

3 2.4 Correspondence between named Plaintiffs is protected by the common-interest doctrine. 4 Next, the privilege log describes Document Nos. 2 and 3 as emails between 5 Plaintiffs about their litigation strategy, plans, and goals, with Document No. 2 6 including information provided by counsel. Plaintiffs assert that these 7 communications are protected under the common-interest doctrine. 8 “The common interest doctrine has its origins in situations where one 9 attorney acts for two clients.” Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 10 578 (N.D. Cal. 2007) (citing Edna Selan Epstein, The Attorney–Client Privilege and 11 the Work–Product Doctrine, American Bar Association Section of Litigation at 196 12 (4th ed. 2001)). It is not a privilege in and of itself. Id. Rather, it relies on the 13 existence of an underlying privilege. The doctrine recognizes that “persons who 14 share a common interest in litigation should be able to communicate with their 15 respective attorneys and with each other to more effectively prosecute or defend 16 their claims,” without waiving underlying privileges. United States v. Gonzales, 669 17 F.3d 974, 978 (9th Cir. 2012). 18 Amazon challenges the application of the common-interest doctrine in the 19 first instance, arguing that Plaintiffs have not shown an underlying privilege or 20 protection and thus that the common-interest doctrine doesn’t apply. The Court 21 disagrees. Emails between Plaintiffs about their joint legal strategy—including one 22 23 1 email discussing information provided by counsel—reflect work product and the 2 attorney-client privilege, at minimum.

3 The common-interest doctrine applies when “(1) the communication is made 4 by separate parties in the course of a matter of common [legal] interest; (2) the 5 communication is designed to further that effort; and (3) the privilege has not 6 [otherwise] been waived.” In re Novalpina Cap. Partners I GP S.à.r.l., 773 F. Supp. 7 3d 1058, 1068 (D. Or. 2025) (quoting Nidec Corp., 249 F.R.D. at 578). 8 “Communications between and among jointly represented clients may be privileged

9 or otherwise protected from disclosure, even if counsel is not a participant, but only 10 if the information withheld from production is, in fact, privileged or protected in the 11 first instance and concerns the common representation or a matter of common legal 12 interest.” Howington v. Taiwan Semiconductor Mfg. Co., Ltd., Case No. 24-cv- 13 05684, 2025 WL 2597403, at *2 (N.D. Cal. Sept. 8, 2025). 14 The three-prong test is satisfied here. First, the challenged emails were 15 exchanged between separate Plaintiffs with a “common [legal] interest” and appear

16 designed to further Plaintiffs’ joint litigation efforts. See Nidec Corp., 249 F.R.D. at 17 578. Second, the emails discuss Plaintiffs’ litigation strategy, and one refers 18 expressly to communications with counsel. Third, Amazon does not contend that 19 Plaintiffs have waived any privilege or protection with respect to these emails. See 20 id. 21 Accordingly, the Court concludes that Document Nos. 2 and 3, as identified

22 on Plaintiffs’ privilege log, Dkt. No. 75-6, are protected and need not be produced. 23 1 2.5 Plaintiffs’ communications with putative class members and collective members are not privileged. 2 Amazon seeks production of communications between Plaintiffs and putative 3 class or collective members. Plaintiffs’ privilege log describes these as “LinkedIn 4 messages between [themselves] and putative collective member[s] seeking legal 5 counsel.” See, e.g., Dkt. No. 75-6 at 1. Plaintiffs argue that “[p]utative class and 6 collective members have reached out to Plaintiffs, as an extension of Plaintiffs’ 7 Counsel, to discuss and offer support for this lawsuit, determine whether they are 8 covered by the lawsuit, and to seek legal advice about their own potential claims.” 9 Dkt. No. 80 at 12. Plaintiffs assert that these communications are protected by the 10 attorney-client privilege, the work-product doctrine, and the common-interest 11 doctrine. 12 None of these doctrines shield the communications from discovery. First, the 13 attorney-client privilege cannot apply. The majority rule is that putative class 14 members have no attorney-client relationship with class counsel before certification. 15 See, e.g., 2 McLaughlin on Class Actions § 11:1 (21st ed.) (“Status of communication 16 with class members”). If putative members’ direct communications with licensed 17 attorneys are not privileged, it follows that their communications with non-attorney 18 plaintiffs cannot be privileged either. Named plaintiffs are not lawyers, and 19 putative class members seeking legal advice from them does not create a privileged 20 communication. See Fed. R. Evid. 501; Valve Corp. v. Sierra Ent. Inc., No. C02- 21 1683Z, 2004 WL 3780346, at *3 (W.D. Wash. Dec. 6, 2004) (attorney-client privilege 22 23 1 requires attorney “‘acting as a lawyer,’ and giving advice with respect to the legal 2 implications of a proposed course of conduct[.]”).

3 Plaintiffs fare no better under the work-product doctrine. These 4 communications were initiated by putative members, not created by Plaintiffs in 5 anticipation of litigation. While Plaintiffs characterize themselves as an “extension 6 of Plaintiffs’ Counsel,” they cite no authority for this novel theory. Named plaintiffs 7 do not become attorneys or their agents simply by discussing the lawsuit with 8 interested individuals. Nor have Plaintiffs demonstrated that these communications

9 reveal counsel’s mental impressions or litigation strategy rather than merely 10 discussing the facts of the case or facilitating connections to counsel. See In re 11 Novalpina Cap. Partners I GP S.à.r.l., 773 F. Supp. 3d at 1068–69 (communications 12 “related to the possibility of litigation … does not transform them into attorney 13 work product”). 14 Next, the common-interest doctrine cannot salvage these communications. As 15 the Court noted above, the doctrine is not a privilege itself but rather an exception

16 to waiver of existing privileges. See Nidec Corp., 249 F.R.D. at 578. Because no 17 underlying privilege exists—neither attorney-client nor work product—the common 18 interest doctrine doesn’t apply here. 19 Finally, Plaintiffs cite no case—and the Court can find none—where 20 communications between named plaintiffs and putative class members have been 21 deemed privileged. While not dispositive on the issue, this reality weighs heavily in

22 the Court’s analysis. 23 1 Accordingly, the Court ORDERS Plaintiffs to produce Document Nos. 4—7, 9 10-15, 17-23, 25-29, 31, 33-36, and 38—40, as identified on Plaintiffs’ privilege log, 3 Dkt. No. 75-6, within 14 days of this order. To address any legitimate concerns

4 about retaliation, Plaintiffs may redact the names and identifying information of

5 non-party putative class members.

6 3. CONCLUSION In sum, the Court GRANTS IN PART Amazon’s motion to compel. Dkt. No. 8 74. Plaintiffs must produce Document Nos. 4—7, 10-15, 17-23, 25-29, 31, 33-36, 9 and 38—40, as identified on Plaintiffs’ privilege log, Dkt. No. 75-6. Plaintiffs must 10 also produce their federal income tax returns (Forms 1040 and all schedules) filed i after their separation from Amazon. Production must occur within 14 days of this le order. Amazon’s motion is DENIED in all other respects. 13 Dated this 31st day of October, 2025. 15

17 United States District Judge

18 19 20 21 22 23