Frame-Wilson v. Amazon.com Inc

• Court: District Court, W.D. Washington
• Decided: February 1, 2023
• Docket: 2:20-cv-00424
• Status: Unknown

Opinion

1 HONORABLE RICHARD A. JONES

9 UNITED STATES DISTRICT COURT 10 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 11

12 DEBORAH FRAME-WILSON, CHRISTIAN 13 SABOL, SAMANTHIA RUSSELL, ARTHUR Case No. 2:20-cv-00424-RAJ SCHAREIN, LIONEL KEROS, NATHAN 14 CHANEY, CHRIS GULLEY, SHERYL ORDER REGARDING DISCOVERY DISPUTES TAYLOR-HOLLY, ANTHONY COURTNEY, 15 DAVE WESTROPE, STACY DUTILL, 16 SARAH ARRINGTON, MARY ELLIOT, HEATHER GEESEY, STEVE MORTILLARO, 17 CHAUNDA LEWIS, ADRIAN HENNEN, 18 GLENDA R. HILL, GAIL MURPHY, PHYLLIS HUSTER, and GERRY 19 KOCHENDORFER, on behalf of themselves and all others similarly situated, 20 21 Plaintiffs, 22 v. 23 AMAZON.COM, INC., a Delaware corporation, 24 Defendant. 25

26 27 1 I. INTRODUCTION 2 This matter comes before the Court on the parties’ Local Civil Rule 37 joint 3 submission regarding discovery protocols. The parties have requested that the Court 4 resolve several disputes concerning the protective order and the order regarding 5 discovery of electronically stored information (“ESI”). Having reviewed the parties’ joint 6 submission, the relevant portions of the record, and applicable law, the Court sets forth its 7 ruling below. 8 II. DISCUSSION 9 Federal Rule of Civil Procedure 26 allows this Court to issue a protective order 10 upon a showing of good cause. Fed. R. Civ. P. 26(c). Parties are encouraged to use the 11 district’s model protective order. LCR 26(c)(2); see also MODEL STIPULATED 12 PROTECTIVE ORDER, available at www.wawd.uscourts.gov/local-rules-and-orders. 13 A. Protective Order 14 The parties’ first dispute concerns language that Amazon seeks to have included in 15 the Protective Order. Amazon proposes that the Order include provisions related to the 16 disclosure of “Highly Confidential—Attorneys’ Eyes Only” (AEO) material to “Industry 17 Experts.” An “Industry Expert” is defined as “[a]n Expert whose specialized knowledge 18 or experience derives from personal experience in the industries and markets pertinent to 19 the litigation and who satisfies the other criteria for the definition of Expert.” Dkt. # 77 at 20 4. The proposal provides that a party will provide contact and background information for 21 Industry Experts, including their employers, entities from whom they have received 22 compensation or funding for work, and any litigation that the Expert has participated in 23 the past four years. Once a party discloses the identity and background of the Expert, the 24 designating party may lodge a written objection within seven days. In the absence of an 25 objection during that time frame, the disclosing party may then share AEO material. The 26 parties must then meet and confer and may bring the dispute to the Court in accordance 27 with LCR 37(a)(2), with the designating party bearing the burden of proving the risk of 1 harm of disclosure outweighs the need to disclose AEO material to the Industry Expert. 2 Plaintiffs argue that Amazon’s proposed provisions deviate from the District’s 3 model protective order, which does not require that experts be disclosed, let alone 4 approved, prior to receiving AEO materials, and that Amazon cannot show the “good 5 cause” required to include additional restrictions in the protective order. First, Plaintiffs 6 argue that the Protective Order already prohibits experts from disclosing or utilizing AEO 7 material outside the context of this litigation, and Amazon’s proposed restrictions are 8 based on speculative assumptions that potential experts are likely to violate the order. Id. 9 at 6-7. Second, only Amazon is likely to produce AEO discovery, meaning that only 10 Plaintiffs would be required to disclose the names of Industry Experts and potentially 11 move the court for an order allowing them to share AEO material with their expert. Id. 12 Finally, Plaintiffs argue that that they would be prejudiced by Amazon’s proposal 13 because it would require Plaintiffs (and likely, only Plaintiffs) to disclose experts 14 (including non-testifying experts) to Amazon months prior to the Rule 26 disclosure 15 deadline. Id. at 8. 16 Amazon, on the other hand, argues that the case will likely “involve the 17 production of extremely sensitive business information,” and disclosure would “create a 18 risk of competitive or commercial harm.” Id. at 8. Amazon raises concerns that Industry 19 Experts will not be able to compartmentalize information learned in the course of this 20 litigation if, in the future, they advise actual or potential competitors. Id. Amazon argues 21 that courts, including those in this District, routinely enter orders with heightened 22 safeguards in cases where highly sensitive business information will be exchanged during 23 discovery1, and this narrowly tailored provision will allow the parties to resolve any 24 issues in advance of disclosure. The Court finds Amazon’s argument regarding disclosure

25 1 Defendant cites several recent orders, including those entered in O’Donnell/Salvatori, Inc. v. 26 Microsoft Corp., No. 2:20-cv-00882-MLP (W.D. Wash. Nov. 30, 2020), Dkt. # 40, ¶ 5.4; Benson v. Double Down Interactive, LLC, No. 2:18-cv-00525-RBL (W.D. Wash. July 28, 2020), Dkt. # 123, ¶ 7; 27 and PTP Oneclick, LLC v. Avalara, Inc., NO. 19-cv-00640-JLR (W.D. Wash. July 8, 2019), Dkt. # 49, ¶5.4. 1 to Industry Experts persuasive. 2 Federal Rule of Civil Procedure 26(c) governs the issuance of protective orders 3 and allows the Court to “make any order which justice requires to protect a party or 4 person from annoyance, embarrassment, oppression, or undue burden or expense, 5 including… requiring that a trade secret or other confidential research, development, or 6 commercial information not be revealed or be revealed only in a specified way[.]” Fed. 7 R. Civ. P. 26(c)(1)(G). District courts have “broad latitude to grant protective orders” to 8 prevent disclosure of highly sensitive commercial information. Phillips ex rel. Estates of 9 Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002); see also Clean Crawl, 10 Inc. v. Crawl Space Cleaning Pros, Inc., No. C17-1340 BHS, 2019 WL 2869169, at *1 11 (W.D. Wash. July 3, 2019) (quoting Cabell v. Zorro Productions, Inc., 294 F.R.D. 604, 12 610 (W.D. Wash 2013)). The Court must balance the conflicting interests of the parties 13 when considering protective orders for confidential information, specifically the risk to 14 Defendant of inadvertent disclosure to competitors against the risk that Plaintiff’s 15 prosecution of its claims will be impaired. Brown Bag Software v. Symantec Corp., 960 16 F.2d 1465, 1470 (9th Cir. 1992). In evaluating the parties’ conflicting interests, the Court 17 should look at the parties’ “specific factual circumstances.” Id. at 1471. 18 Amazon’s concerns regarding the potential dissemination of highly confidential 19 business information are not merely speculative. The Court expects that all counsel and 20 experts will “abide by the letter and spirit of the Protective Order,” Methodist Health 21 Servs. Corp. v. OSF Healthcare Sys., No. 14-CV-7748, 2014 WL 5465401, at * 2 (N.D. 22 Ill. Oct. 27, 2014), and will not presume that experts will violate it; however, it is not 23 unusual for courts to enter orders that provide for varying levels of protection for the 24 most sensitive information produced in discovery. Indeed, Courts have rejected protective 25 order proposals that do not include “separate levels of protection for confidential 26 documents.” Clean Crawl, 2019 WL 2869169, at *1. The disclosure rules proposed by 27 Amazon would apply only to: 1) individuals designated as “Industry Experts” because of 1 not only their expertise but their personal experience in the industries at issue, Dkt. # 77, 2 Ex. B at 3, and only to the most sensitive material designated as “Highly Confidential— 3 Attorney’s Eyes Only,” which should lessen the burden of disclosure on Plaintiffs. 4 Further, the multi-tiered protective order is reasonable to protect Amazon from the 5 potential disclosure of confidential information to an Industry Expert who may then work 6 for a competitor. “[V]etting litigation consultants [is] an ordinary and reasonable method 7 to protect” AEO material. Clean Crawl, 2019 WL 2869169, at *2. Indeed, this Court has 8 entered protective orders with similar disclosure requirements in the past. See Hopjacks. 9 Inc. v. Rock Solid Restaurants, LLC, No. 2:18-CV-00848-RAJ (W.D. Wash. Aug. 2, 10 2018), Dkt. # 60. However, the Court also understands Plaintiffs’ concerns that the 11 disclosure requirement can be used to delay Plaintiffs’ experts’ work and give Amazon a 12 tactical advantage by requiring Plaintiffs to disclose both testifying and consulting 13 Industry Experts prior to any applicable deadline. The Court also takes into consideration 14 Plaintiffs’ concern that they will be hampered in their ability to retain qualified experts if 15 they cannot assure the confidentiality of the engagement. While the Federal Rules do not 16 prohibit disclosure of the identities of consulting experts, the Court will not require 17 Plaintiffs to disclose the names of consulting Industry Experts before applicable 18 disclosure deadlines contained in the Rules, if any. See Clean Crawl, 2019 WL 2869169, 19 at *2 (“[Fed. R. Civ. P. 26(b)(4(D)] does not prevent disclosure of the identity of a 20 nontestifying expert, but only ‘facts known or opinions held’ by such an expert”) (citing 21 Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 999 (9th Cir. 2012)). Prior to any 22 expert witness disclosure deadlines, only Industry Experts expected to testify must be 23 disclosed by either party. Given these parameters, the Court “expects the 24 parties…use…AEO designations” and Industry Expert challenges “sparingly and only 25 where necessary in order to minimize onerous litigation.” Cabell, 294 F.R.D. at 610. 26 Next, the Court will turn to the parties’ disputes concerning ESI protocols. 27 1 B. ESI Protocols 2 The parties have been unable to come to an agreement regarding the modification 3 and adoption of an order governing the exchange of Rule 34 ESI and specifically, how to 4 amend this District’s model agreement. See [MODEL] AGREEMENT REGARDING 5 DISCOVERY OF ELECTRONICALLY STORED INFORMATION AND [PROPOSED] ORDER, 6 available at www.wawd.uscourts.gov/local-rules-and-orders. The Court has broad 7 authority and discretion to manage this process, Phillips, 307 F.3d at 1211-12, and 8 addresses each dispute below. 9 i. General Principles 10 Amazon seeks to add a provision to the parties’ proposed ESI order that states:

11 Nothing in this ESI Protocol shall be construed to alter the Producing Party’s rights 12 arising under Federal Rule of Civil Procedure 26 or otherwise, for example, with respect to proportionality, or to be able to withhold production of Documents 13 because the source of the Documents is not reasonably accessible or its production would be unduly burdensome or duplicative. 14

15 Dkt. # 77, Ex. 4. Plaintiffs object to the addition of this provision, arguing that it 16 would allow a party’s individualized assessment of the burden of production to trump the 17 specific provisions of the order, and that the provision is simply duplicative of the 18 preceding provision. Amazon, on the other hand, argues that the proposed provision makes 19 clear that the ESI protocol does not disturb the balance created by the Rules and caselaw. 20 The Court is not persuaded. The proposed provision is duplicative and unnecessary. “[A]n 21 ESI protocol has to be specific or it doesn’t mean anything.” Hardin v. Mendocino Coast 22 Dist. Hosp., No. 17-cv-05554-JST, 2019 WL 4256383, at *2 (N.D. Cal. Sept. 9, 2019). 23 Amazon’s vague proposed language deviates from this District’s model ESI agreement and 24 would provide no greater clarity to the parties in the event of a dispute. 25

27 ii. Timing of Disclosures 1 Amazon requests 60 days (instead of the 30 provided by the model) to make 2 required ESI disclosures. Plaintiffs object to the request, arguing that any delay risks the 3 loss of evidence and witnesses. Amazon states that Plaintiffs have served requests for 4 wide-ranging data, including details related to every third-party-seller transaction in the 5 Amazon store for the past decade. Amazon argues a 30-day extension will not hamstring 6 discovery, as Plaintiffs have already served nearly 100 requests for production. The Court 7 agrees that a modest increase is not unreasonable in the context of this complex case; 8 however, in order to ensure that discovery continues apace, all ESI disclosures shall be 9 completed within 45 days of the entry of the ESI order. 10 iii. Number of Custodians 11 Similarly, the parties disagree as to the number of custodians required to be 12 disclosed. Amazon proposes the disclosure of ten custodians, which is double the number 13 currently included in the District’s model. Plaintiffs propose that the parties rely on “the 14 requirements of Rule 26 and their good faith assessment of the demands” of this complex 15 case as the basis for their disclosures. 16 The Court finds that limiting the number of custodians to be disclosed to 10 is not 17 warranted. Given the large amount of discovery expected to be produced and the 18 complexity of this matter, the Court will require that the parties make a good faith 19 assessment as to the appropriate number of custodians to be disclosed, especially given 20 that the parties are best placed to make an accurate assessment of the “custodians most 21 likely to have discoverable ESI in their possession, custody, or control.” 22 iv. Search Methodology 23 Amazon proposes to add the following language to the ESI protocol: 24 The parties agree that to support a cooperative discovery process, they will each act 25 reasonably in disclosing their intended processes for search and retrieval, including the use of computer- or technology-aided methodologies. If the parties determine 26 that they will utilize search terms, the parties shall timely confer to attempt to reach agreement on appropriate search terms and queries, file type and date restrictions, 27 and data sources (including custodians). The parties agree that each producing party will take reasonable steps to identify, review, and produce relevant documents. The 1 parties further agree that each producing party is best situated to evaluate and utilize 2 the procedures, methodologies, and technologies appropriate to identify, review, and produce its own Documents. 3 4 Amazon fails to present good cause to deviate from the language in this District’s 5 model. The Court declines to add the proposed language to the parties’ ESI agreement. 6 7 v. Presumptively Overbroad Search Results Amazon requests that the parties ESI protocol include a threshold of 500 8 megabytes as a presumptively overbroad search, while Plaintiffs oppose the inclusion of 9 such a limit. The model contains an optional provision stating that a search that produces 10 250 megabytes of data (excluding large files such as PowerPoint and audio files) is 11 presumed to be overbroad. The model also indicates that this is a “starting point” for 12 parties’ negotiations. 13 Plaintiffs argue that, based on their testing of other ESI databases, a search that 14 produces fewer than 400 documents can exceed Amazon’s proposed 500-megabyte limit. 15 Given that the parties have described the document requests propounded by Plaintiffs as 16 “wide-ranging,” Dkt. # 77 at 12, and the litigation as “complex,” id. at 14, the Court 17 declines to impose a presumptively overbroad megabyte limit. The Court reiterates that 18 the parties are expected to provide tailored and targeted search proposals throughout the 19 discovery process. 20 vi. Supplemental Disclosures 21 Amazon proposes that the model’s requirement that the parties supplement 22 disclosures in accordance with Fed. R. Civ. P. 26(3), located at § D.2, be removed. 23 Amazon argues that the provision would require continuous supplementation based on 24 each individual transaction in the Amazon store, creating a disproportionate burden for 25 the Defendant. Plaintiffs argue that there is nothing about this case that would obviate the 26 need for supplementation. The Court agrees with Plaintiffs. The Rules require the parties 27 to supplement or correct a disclosure or response “in a timely manner if the party learns 1 that in some material respect the disclosure or response is incomplete or incorrect, and if 2 the additional or corrective information has not otherwise been made known to the other 3 parties during the discovery process or in writing….” Fed. R. Civ. P. 26(e)(1)(A). The 4 Court encourages the parties to work together to create a reasonable plan for 5 supplementation of transaction information or other data, if necessary. This may mean 6 that the parties agree to a rolling production of incoming data or larger periodic 7 productions at agreed-upon intervals. 8 vii. Privilege Log Timing 9 Both Plaintiffs and Amazon propose deviating from the model agreement, which 10 provides that privilege logs be produced to all other parties either no later than 30 days 11 after delivering a production or no later than 30 days before the deadline for filing 12 motions related to discovery. Instead, Plaintiffs propose that privilege logs be served 13 within 45 days of delivering the production, while Amazon proposes that service of logs 14 be within a “reasonable time” after the final production. Given the breadth of discovery 15 in this matter, the Court understands Amazon’s desire to avoid the ad hoc production of 16 logs. However, a requirement that logs be served within “reasonable time” leaves too 17 much room for the parties to differ. An expanded time frame to produce logs is 18 reasonable, and the Court orders that logs be served within 45 days of delivering the 19 production. 20 viii. Privilege Log Requirements 21 Plaintiffs request that the parties be required to disclose certain information in 22 their privilege logs, drawing from the model rules of the Southern District of New York. 23 See S.D.N.Y. Local Rule 26.2. This information would include: the type of document; 24 general subject matter; the date, author, addressees, and other recipients; and where not 25 apparent, the relationship between the author of the document and recipients. Id. Amazon 26 objects to this proposal, arguing that the Federal Rules and this District’s model contain 27 no such requirements. A party claiming that a document is privileged has the burden of establishing that 1 privilege applies. United States v. Martin, 278 F.3d 988, 999-1000 (9th Cir. 2002). The 2 Rules provide that a party asserting a privilege must “describe the nature of the 3 documents … and do so in a manner that, without revealing information itself privileged 4 or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5(A)(ii). 5 In the Ninth Circuit, a party may make their prima facie burden of showing that privilege 6 applies by identifying: “(a) the attorney and client involved, (b) the nature of the 7 document, (c) all persons or entities shown on the document to have received or sent the 8 document, (d) all persons on entities known to have been furnished the document or 9 informed of its substance, and (e) the date the document was generated, prepared, or 10 dated.” In re Grand Jury Investigation, 974 F.2d 1068 (9th Cir. 1992). “However, a party 11 may substantiate a claim of privilege by other means.” In re Google RTB Consumer 12 Privacy Litigation, No. 21-cv-02155-YGR, 2022 WL 17072016, at *2 (N.D. Cal. Nov. 13 17, 2022) (citing Apple Inc. v. Samsung Elecs. Co., Ltd., 306 F.R.D. 234 (N.D. Cal. Apr. 14 3, 2015) (analyzing ESI protocol that declined to include a statement of what information 15 “may be necessary to resolve certain disputes about privilege claims[.]”). The Court 16 declines to impose further specific requirements beyond those in this District’s model and 17 the Rules at this time. The parties are expected to prepare privilege logs that comport 18 with the Rules and Ninth Circuit precedent, and meet and confer regarding deficiencies in 19 a party’s log before bringing disputes to the Court. 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 III. CONCLUSION 1 Based on the foregoing, the Court GRANTS Amazon’s request concerning the 2 draft protective order, and orders Amazon to submit a revised proposed protective order 3 in Microsoft Word format, consistent with this opinion, within seven (7) days of the date 4 of this Order. Further, the Court orders Plaintiffs to submit a revised proposed order 5 regarding ESI within seven (7) days of the date of this Order. The proposed ESI order 6 shall be consistent with this opinion, and any provision not specifically addressed by this 7 opinion, or mutually agreed upon by the parties, shall be consistent with this District’s 8 model agreement. 9

10 DATED this 1st day of February, 2023. 11 A 12 13 The Honorable Richard A. Jones 14 United States District Judge 15

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