1 The Honorable John H. Chun
4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6
7 ELIZABETH DE COSTER, et al., on behalf of No. 2:21-cv-00693-JHC themselves and all others similarly situated, 8 STIPULATED MOTION AND FRE 502(d) Plaintiffs, ORDER REGARDING PRODUCTION OF 9 COURT-ORDERED 30(b)(6) DEPOSITION v. 10 MATERIAL AMAZON.COM, INC., a Delaware corporation, 11 Defendant. 12
13 DEBORAH FRAME-WILSON, et al., on behalf No. 2:20-cv-00424-JHC of themselves and all others similarly situated, 14
Plaintiffs, 15
16 v.
17 AMAZON.COM, INC., a Delaware corporation,
18 Defendant.
19 No. 2:22-cv-00965-JHC 20 CHRISTOPHER BROWN, et al., on behalf of themselves and all others similarly situated, 21 Plaintiffs, 22 v. 23
24 AMAZON.COM, INC., a Delaware corporation,
25 Defendant. 26 27 1 STIPULATED MOTION 2 Plaintiffs in the above-captioned actions (“Private Plaintiffs”) and Amazon.com, Inc. 3 (“Amazon”) (together, the “Parties”), by and through their attorneys of record, respectfully request 4 that the Court enter the proposed order set forth below. In support of this request, the Parties state 5 the following: 6 1. On April 25, 2024, the plaintiffs in FTC et al. v. Amazon.com, Inc., No. 2:23-cv- 7 01495-JHC (W.D. Wash.), moved to compel the production of Amazon’s legal holds and other 8 privileged materials related to preservation in that action and the FTC investigation that preceded 9 it. On May 13, 2024, Amazon filed a response in opposition to that motion. Amazon argued that 10 the litigation holds and related materials are privileged, and that there has been no “preliminary 11 showing” of spoliation sufficient to pierce that privilege. 12 2. On July 9, 2024, this Court denied the plaintiffs’ motion to compel without 13 prejudice. No. 2:23-cv-01495-JHC, Dkt. 264 at 2, 4 (“Defendant correctly notes that litigation 14 hold notices are not discoverable.”) (internal quotation marks omitted). Instead of requiring the 15 immediate production of the underlying documents, the Court ordered a Rule 30(b)(6) deposition 16 of an Amazon representative to testify about document retention. See generally id. The Court 17 instructed that, at the deposition, the plaintiffs “may inquire into (1) when and to whom the 18 litigation hold notices were given, (2) what kinds and categories of information and data 19 Defendant’s employees were instructed to preserve and collect, and (3) what specific actions they 20 were instructed to take to that end.” Id. at 4. 21 3. On August 6, 2024, after confirming that the FTC had no objection to their 22 participation, Private Plaintiffs asked Amazon to participate in the 30(b)(6) deposition ordered by 23 the Court, which was scheduled for August 21, 2024. 24 4. On August 13, Amazon told Plaintiffs it did not agree to their participation. Among 25 other concerns, Amazon noted that while disclosure of potentially privileged or work-product- 26 protected information in the FTC case under judicial compulsion does not waive the privilege or 27 protection, see, e.g., Transamerica Computer Co., Inc. v. Int’l Bus. Mach. Corp., 573 F.2d 646, 1 650–52 (9th Cir. 1978), allowing Private Plaintiffs’ participation without any such order could be 2 viewed as an independent ground for waiver. 3 5. After the Parties conferred, in lieu of Private Plaintiffs’ attendance at the 30(b)(6) 4 deposition, and in light of the Court’s order for reasonable fact discovery coordination among the 5 Parties across cases, Amazon agreed to (a) produce certain non-privileged documents and 6 testimony pertaining to its preservation efforts and use of ephemeral messaging systems more 7 broadly, among other things; and (b) discuss with Private Plaintiffs the production of the August 8 21, 2024 Rule 30(b)(6) transcript and related materials under an appropriate court order to protect 9 against waiver. 10 6. On August 21, 2024, the Court-ordered deposition in the FTC case was held and 11 no party outside the FTC action attended or participated in the deposition. Amazon designated the 12 deposition transcript as Highly Confidential under the protective order entered in that case. 13 7. Private Plaintiffs now seek production of the unredacted transcript and the exhibits 14 used in the August 21, 2024 Court-ordered deposition in the FTC case (the “Transcript Materials”). 15 Plaintiffs’ position is that this limited production is required under the Coordination Order. 16 Discovery Coordination Order, see, e.g., Frame-Wilson v. Amazon.com, Inc., No. 2:20-cv-00424- 17 JHC, Dkt. 172, at 5–6. Private Plaintiffs have represented and agree that they will not assert, in 18 this or any other matter, that production of the Transcript Materials implicates or constitutes a 19 privilege waiver of any kind. 20 8. Despite Private Plaintiffs’ representation, Amazon’s position is that it cannot 21 produce the Transcript Materials to Private Plaintiffs without a Court order under Federal Rule of 22 Evidence 502(d), lest that production be viewed (however incorrectly) as an independent ground 23 for waiver. Amazon would, however, comply with a Court order compelling the production of the 24 Transcript Materials to Private Plaintiffs, just as it complied with this Court’s order to produce a 25 witness to testify to the topics in the Court’s 30(b)(6) order in the FTC case. 26 27 1 9. Private Plaintiffs thus ask the Court to compel Amazon’s production of the 2 Transcript Materials. In receiving the Transcript Materials by this Court Order, Private Plaintiffs 3 agree to refrain from any argument that the attorney-client privilege or work-product protections 4 are waived by virtue of such production, and Amazon understands that such a compelled 5 production protects it against third-party claims that Amazon’s production of the Transcript 6 Materials to Private Plaintiffs implicates or constitutes a privilege waiver. Amazon also requests 7 that, should the Court issue this order, it expressly guard against a third-party claim of waiver 8 through production. See Fed. R. Evid. 502(d) (“A federal court may order that the privilege or 9 protection is not waived by disclosure connected with the litigation pending before the court—in 10 which event the disclosure is also not a waiver in any other federal or state proceeding.”). 11 12 SO STIPULATED this 20th day of September, 2024.
13 HAGENS BERMAN SOBOL SHAPIRO LLP
14 By: /s/ Steve W. Berman 15 Steve W. Berman (WSBA No. 12536) By: /s/ Barbara A. Mahoney 16 Barbara A. Mahoney (WSBA No. 31845) 1301 Second Avenue, Suite 2000 17 Seattle, WA 98101 Telephone: (206) 623-7292 18 Facsimile: (206) 623-0594 19 E-mail: steve@hbsslaw.com E-mail: barbaram@hbsslaw.com 20 Anne F. Johnson (pro hac vice) 21 594 Dean Street, Suite 24 Brooklyn, NY 11238 22 Telephone: (718) 916-3520 23 E-mail: annej@hbsslaw.com 24 25 26 27 1 KELLER POSTMAN LLC
2 Zina G. Bash (pro hac vice) 3 111 Congress Avenue, Suite 500 Austin, TX, 78701 4 Telephone: (512) 690-0990 E-mail: zina.bash@kellerpostman.com 5 Jessica Beringer (pro hac vice) 6 Shane Kelly (pro hac vice) 7 150 North Riverside Plaza, Suite 4100 Chicago, Illinois 60606 8 Telephone: (312) 741-5220 E-mail: jessica.beringer@kellerpostman.com 9 E-mail: shane.kelly@kellerpostman.com 10 Roseann Romano (pro hac vice) 11 1101 Connecticut Avenue, N.W., Suite 1100 Washington, DC 20036 12 Telephone: (202) 983-5484 E-mail: roseann.romano@kellerpostman.com 13
14 Interim Co-Lead Counsel for Plaintiffs and the proposed Class 15 QUINN EMANUEL URQUHART & 16 SULLIVAN, LLP
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1 The Honorable John H. Chun
4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6
7 ELIZABETH DE COSTER, et al., on behalf of No. 2:21-cv-00693-JHC themselves and all others similarly situated, 8 STIPULATED MOTION AND FRE 502(d) Plaintiffs, ORDER REGARDING PRODUCTION OF 9 COURT-ORDERED 30(b)(6) DEPOSITION v. 10 MATERIAL AMAZON.COM, INC., a Delaware corporation, 11 Defendant. 12
13 DEBORAH FRAME-WILSON, et al., on behalf No. 2:20-cv-00424-JHC of themselves and all others similarly situated, 14
Plaintiffs, 15
16 v.
17 AMAZON.COM, INC., a Delaware corporation,
18 Defendant.
19 No. 2:22-cv-00965-JHC 20 CHRISTOPHER BROWN, et al., on behalf of themselves and all others similarly situated, 21 Plaintiffs, 22 v. 23
24 AMAZON.COM, INC., a Delaware corporation,
25 Defendant. 26 27 1 STIPULATED MOTION 2 Plaintiffs in the above-captioned actions (“Private Plaintiffs”) and Amazon.com, Inc. 3 (“Amazon”) (together, the “Parties”), by and through their attorneys of record, respectfully request 4 that the Court enter the proposed order set forth below. In support of this request, the Parties state 5 the following: 6 1. On April 25, 2024, the plaintiffs in FTC et al. v. Amazon.com, Inc., No. 2:23-cv- 7 01495-JHC (W.D. Wash.), moved to compel the production of Amazon’s legal holds and other 8 privileged materials related to preservation in that action and the FTC investigation that preceded 9 it. On May 13, 2024, Amazon filed a response in opposition to that motion. Amazon argued that 10 the litigation holds and related materials are privileged, and that there has been no “preliminary 11 showing” of spoliation sufficient to pierce that privilege. 12 2. On July 9, 2024, this Court denied the plaintiffs’ motion to compel without 13 prejudice. No. 2:23-cv-01495-JHC, Dkt. 264 at 2, 4 (“Defendant correctly notes that litigation 14 hold notices are not discoverable.”) (internal quotation marks omitted). Instead of requiring the 15 immediate production of the underlying documents, the Court ordered a Rule 30(b)(6) deposition 16 of an Amazon representative to testify about document retention. See generally id. The Court 17 instructed that, at the deposition, the plaintiffs “may inquire into (1) when and to whom the 18 litigation hold notices were given, (2) what kinds and categories of information and data 19 Defendant’s employees were instructed to preserve and collect, and (3) what specific actions they 20 were instructed to take to that end.” Id. at 4. 21 3. On August 6, 2024, after confirming that the FTC had no objection to their 22 participation, Private Plaintiffs asked Amazon to participate in the 30(b)(6) deposition ordered by 23 the Court, which was scheduled for August 21, 2024. 24 4. On August 13, Amazon told Plaintiffs it did not agree to their participation. Among 25 other concerns, Amazon noted that while disclosure of potentially privileged or work-product- 26 protected information in the FTC case under judicial compulsion does not waive the privilege or 27 protection, see, e.g., Transamerica Computer Co., Inc. v. Int’l Bus. Mach. Corp., 573 F.2d 646, 1 650–52 (9th Cir. 1978), allowing Private Plaintiffs’ participation without any such order could be 2 viewed as an independent ground for waiver. 3 5. After the Parties conferred, in lieu of Private Plaintiffs’ attendance at the 30(b)(6) 4 deposition, and in light of the Court’s order for reasonable fact discovery coordination among the 5 Parties across cases, Amazon agreed to (a) produce certain non-privileged documents and 6 testimony pertaining to its preservation efforts and use of ephemeral messaging systems more 7 broadly, among other things; and (b) discuss with Private Plaintiffs the production of the August 8 21, 2024 Rule 30(b)(6) transcript and related materials under an appropriate court order to protect 9 against waiver. 10 6. On August 21, 2024, the Court-ordered deposition in the FTC case was held and 11 no party outside the FTC action attended or participated in the deposition. Amazon designated the 12 deposition transcript as Highly Confidential under the protective order entered in that case. 13 7. Private Plaintiffs now seek production of the unredacted transcript and the exhibits 14 used in the August 21, 2024 Court-ordered deposition in the FTC case (the “Transcript Materials”). 15 Plaintiffs’ position is that this limited production is required under the Coordination Order. 16 Discovery Coordination Order, see, e.g., Frame-Wilson v. Amazon.com, Inc., No. 2:20-cv-00424- 17 JHC, Dkt. 172, at 5–6. Private Plaintiffs have represented and agree that they will not assert, in 18 this or any other matter, that production of the Transcript Materials implicates or constitutes a 19 privilege waiver of any kind. 20 8. Despite Private Plaintiffs’ representation, Amazon’s position is that it cannot 21 produce the Transcript Materials to Private Plaintiffs without a Court order under Federal Rule of 22 Evidence 502(d), lest that production be viewed (however incorrectly) as an independent ground 23 for waiver. Amazon would, however, comply with a Court order compelling the production of the 24 Transcript Materials to Private Plaintiffs, just as it complied with this Court’s order to produce a 25 witness to testify to the topics in the Court’s 30(b)(6) order in the FTC case. 26 27 1 9. Private Plaintiffs thus ask the Court to compel Amazon’s production of the 2 Transcript Materials. In receiving the Transcript Materials by this Court Order, Private Plaintiffs 3 agree to refrain from any argument that the attorney-client privilege or work-product protections 4 are waived by virtue of such production, and Amazon understands that such a compelled 5 production protects it against third-party claims that Amazon’s production of the Transcript 6 Materials to Private Plaintiffs implicates or constitutes a privilege waiver. Amazon also requests 7 that, should the Court issue this order, it expressly guard against a third-party claim of waiver 8 through production. See Fed. R. Evid. 502(d) (“A federal court may order that the privilege or 9 protection is not waived by disclosure connected with the litigation pending before the court—in 10 which event the disclosure is also not a waiver in any other federal or state proceeding.”). 11 12 SO STIPULATED this 20th day of September, 2024.
13 HAGENS BERMAN SOBOL SHAPIRO LLP
14 By: /s/ Steve W. Berman 15 Steve W. Berman (WSBA No. 12536) By: /s/ Barbara A. Mahoney 16 Barbara A. Mahoney (WSBA No. 31845) 1301 Second Avenue, Suite 2000 17 Seattle, WA 98101 Telephone: (206) 623-7292 18 Facsimile: (206) 623-0594 19 E-mail: steve@hbsslaw.com E-mail: barbaram@hbsslaw.com 20 Anne F. Johnson (pro hac vice) 21 594 Dean Street, Suite 24 Brooklyn, NY 11238 22 Telephone: (718) 916-3520 23 E-mail: annej@hbsslaw.com 24 25 26 27 1 KELLER POSTMAN LLC
2 Zina G. Bash (pro hac vice) 3 111 Congress Avenue, Suite 500 Austin, TX, 78701 4 Telephone: (512) 690-0990 E-mail: zina.bash@kellerpostman.com 5 Jessica Beringer (pro hac vice) 6 Shane Kelly (pro hac vice) 7 150 North Riverside Plaza, Suite 4100 Chicago, Illinois 60606 8 Telephone: (312) 741-5220 E-mail: jessica.beringer@kellerpostman.com 9 E-mail: shane.kelly@kellerpostman.com 10 Roseann Romano (pro hac vice) 11 1101 Connecticut Avenue, N.W., Suite 1100 Washington, DC 20036 12 Telephone: (202) 983-5484 E-mail: roseann.romano@kellerpostman.com 13
14 Interim Co-Lead Counsel for Plaintiffs and the proposed Class 15 QUINN EMANUEL URQUHART & 16 SULLIVAN, LLP
17 By: /s/ Alicia Cobb 18 Alicia Cobb, WSBA # 48685 1109 First Avenue, Suite 210 19 Seattle, WA 98101 Telephone: (206) 905-7000 20 Email: aliciacobb@quinnemanuel.com
21 Steig D. Olson (pro hac vice) 22 David D. LeRay (pro hac vice) Nic V. Siebert (pro hac vice) 23 Maxwell P. Deabler-Meadows (pro hac vice) 51 Madison Avenue, 22nd Floor 24 New York, NY 10010 Telephone: (212) 849-7000 25 Email: steigolson@quinnemanuel.com 26 Email: davidleray@quinnemanuel.com Email: nicolassiebert@quinnemanuel.com 27 Email: maxmeadows@quinnemanuel.com Adam B. Wolfson (pro hac vice) 1 865 South Figueroa Street, 10th Floor Los Angeles, CA 90017-2543 2 Telephone: (213) 443-3000 3 Email: adamwolfson@quinnemanuel.com
4 Interim Executive Committee for Plaintiffs and the proposed Class 5 DAVIS WRIGHT TREMAINE LLP 6
7 By: /s/ John A. Goldmark 8 John A. Goldmark, WSBA #40980 MaryAnn Almeida, WSBA #49086 9 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 10 Telephone: (206) 622-3150 Email: JohnGoldmark@dwt.com 11 Email: MaryAnnAlmeida@dwt.com 12 PAUL, WEISS, RIFKIND, WHARTON & 13 GARRISON LLP
14 Karen L. Dunn (pro hac vice) William A. Isaacson (pro hac vice) 15 Amy J. Mauser (pro hac vice) 16 Kyle Smith (pro hac vice) 2001 K Street, NW 17 Washington, D.C. 20006-1047 Telephone: (202) 223-7300 18 Email: kdunn@paulweiss.com Email: wisaacson@paulweiss.com 19 Email: amauser@paulweiss.com 20 Email: ksmith@paulweiss.com
21 Meredith Dearborn (pro hac vice) 535 Mission Street, 24th Floor 22 San Francisco, CA 94105 23 Telephone: (628) 432-5100 Email: mdearborn@paulweiss.com 24 Attorneys for Defendant Amazon.com, Inc. 25 26 27 1 ORDER 2 Based on the foregoing, the Court GRANTS the Parties’ stipulated motion. Pursuant to 3 Federal Rules of Evidence 502(d): 4 1. Amazon shall produce the unredacted transcript and all exhibits (including the 5 notice of deposition and attachments thereto) used in the Court-ordered deposition held on 6 August 21, 2024 in the case of FTC et al. v. Amazon.com, Inc., No. 2:23-cv-01495-JHC 7 (“Transcript Materials”), to counsel for plaintiffs in the above-captioned actions (“Plaintiffs”) 8 pursuant to the Discovery Coordination Order, see, e.g., Frame-Wilson v. Amazon.com, Inc., 9 No. 2:20-cv-00424-JHC, Dkt. 172, at 5–6. 10 2. This production of Transcript Materials shall occur no later than 5 business days 11 after Amazon’s September 20, 2024 deadline to submit any errata to the deposition transcript, 12 and shall include any such errata in the production. 13 3. The production of the Transcript Materials in the above-captioned proceedings is 14 compelled by the Court. It will not constitute or be deemed a waiver or forfeiture—in this or 15 any other action—of any claim of privilege or work-product protection that Amazon would 16 otherwise be entitled to assert with respect to the Transcript Materials and its subject matters. 17 This order shall be interpreted to provide the maximum protection allowed under applicable 18 law, and is effective as to Plaintiffs, their counsel, and any other party or person who may later 19 seek production of these materials or others on the same subject matters in this or any other 20 action. 21 4. This compelled production of the Transcript Materials applies only to the 22 Transcript Materials, and not to any other information, documents, or other materials on the 23 same or different subject matters. 24 5. All recipients of the Transcript Materials shall treat them as Highly Confidential – 25 Attorneys’ Eyes Only under all applicable protective orders. 26 6. In the event that any recipient were ever to be required, by a valid discovery 27 request or court order, to produce the Transcript Materials to a third party, the recipient shall 1 || promptly, but in any event no later than 14 days after receiving a valid discovery request or 2 || court order, notify Amazon in writing that some or all of the material requested in subject to this 3 || order. Amazon shall have 21 days from such notification to either: (1) consent to the disclosure 4 || to the requesting party subject to this Rule 502(d) order, or (i1) object to the disclosure in 5 || writing and set forth in detail the grounds on which the objection is based. If the requesting 6 || party and Amazon are unable to reach a resolution after a good faith effort to meet and confer, 7 || then either the requesting party or Amazon may seek any appropriate order following the 8 || applicable procedures for such requests from the court. 9 7. Any party receiving the Transcript Materials without Amazon’s express consent 10 || as to their re-production shall return them to Amazon, upon request, and, within 5 business days 11 || of receiving such request, delete any versions of the documents it maintains and make no use of 12 || the information contained therein regardless of whether the receiving party agrees with the 13 || claim of privilege and/or work-product protection. 14 8. The provisions of Federal Rule of Evidence 502(b) are inapplicable to the 15 || disclosure of the Transcript Materials under this order. Specifically, there has been no waiver 16 || if a third party discloses the Transcript Materials, inadvertently or otherwise, regardless of 17 || whether the party took reasonable steps to prevent the disclosure or to rectify the error. 18 IT IS SO ORDERED this 23rd day of September, 2024. 19 20 C / vk x] haus 21 John H. Chun UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 STIP. AND ORDER REGARDING PRODUCTION OF COURT-ORDERED 30(b)(6) DEPOSITION MATERIAL (Nos. 2:20-cv-00424-JHC; 2:21-cv-00693-JHC; 2:22-cv-00965-JHC) - 7