Garner v. Amazon.com Inc

• Court: District Court, W.D. Washington
• Decided: March 10, 2022
• Docket: 2:21-cv-00750
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 KAELI GARNER, et al., Cause No. C21-0750RSL 8 Plaintiffs, ORDER DENYING 9 v. DEFENDANTS’ MOTION 10 FOR A STAY AND AMAZON.COM, INC., et al., PROTECTIVE ORDER 11

Defendants. 12 13 This matter comes before the Court on defendants’ “Motion to Stay All Discovery 14 15 Pending Decision on Amazon’s Motion to Dismiss and for Protective Order Against 16 Enforcement of 39 Non-Party Subpoenas.” Dkt. #73. Having reviewed the memoranda, 17 declarations, and exhibits submitted by the parties, as well as the underlying motion to dismiss,1 18 19 the Court finds as follows: 20 A. Stay of Discovery 21 The Federal Rules of Civil Procedure impose clear duties to disclose that are triggered by 22 23 certain, specified events. See Fed. R. Civ. P. 26(a)(1) and 26(d)(1). The rules do not provide an 24 automatic stay of discovery if a motion to dismiss is filed: such motions are often unsuccessful 25 26 1 This matter can be decided on the papers submitted. Defendants’ request for oral argument is 27 DENIED. 28 1 and a stay could cause unnecessary and significant delays at the outset of the litigation. The 2 Court nevertheless has discretion to stay discovery if defendants show that they are entitled to a 3 protective order under Rule 26(c) “to protect a party or person from annoyance, embarrassment, 4 5 oppression, or undue burden or expense . . . .” See Lazar v. Kroncke, 862 F.3d 1186, 1203 (9th 6 Cir. 2017) (“District court[] orders controlling discovery are reviewed for an abuse of 7 discretion.”). Defendants argue that it would be an undue burden to have to respond to discovery 8 9 related to claims which may be dismissed under Rule 12(b)(6). 10 The pending motion to dismiss asserts that Washington law governs the claims of 11 registered users, all of whom agreed to Amazon’s Conditions of Use, that all claims brought by 12 13 registered users under other states’ laws must be dismissed, and that the registered users have 14 consented to the recordings at issue in the First Amended Complaint. With regards to non- 15 registrant users, defendants argue that they impliedly consented to the voice recordings under 16 17 Washington law2 because they knew or should have known the way Alexa works and the 18 recordings are inherent in the technology plaintiffs used. Defendants seek dismissal of plaintiffs’ 19 Washington Consumer Protection Act claims for failure to plausibly allege an unfair or 20 21 deceptive practice or injury to business or property, dismissal of the Federal Wiretap Act claims 22 because defendants were the intended recipient of the communications, and dismissal of the 23 Federal Stored Communications Act claims for failure to plausibly allege that Alexa is an 24 25 electronic communication service, that the recordings are in electronic storage, or that they were 26 27

28 2 Defendants do not explain why Washington law applies to the claims of non-registrant users. 1 divulged to a third party. A brief review of the moving papers suggest that they raise “a real 2 question whether” portions of plaintiffs’ claims will survive. Wood v. McEwen, 644 F.2d 797, 3 802 (9th Cir. 1981). 4 5 Such a showing is only half of the analysis, however. To determine whether the expense 6 and burden of discovery regarding claims that may ultimately be dismissed is “undue” and 7 therefore justifies a protective order, the Court must also consider whether plaintiff will be 8 9 prejudiced if a stay is ordered. Id. In this regard, plaintiff argues that the discovery it seeks will 10 bolster allegations in the First Amended Complaint that defendants challenge as conclusory, 11 such as the allegation that defendants disclosed Alexa recordings to third parties. In addition, the 12 13 parties have less than ten months to complete fact discovery. A delay of unknown length at the 14 start of discovery would likely prejudice plaintiffs’ ability to support their class certification 15 motion, which is due in January 2023. In light of the risk of prejudice to plaintiff, the apparent 16 17 merit of some of defendants’ arguments does not justify the requested stay of discovery. 18 B. Protective Order 19 Defendants also seek a protective order relieving the recipients of 39 third-party 20 21 subpoenas from having to respond until after the motion to dismiss is ruled upon. “The court 22 may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, 23 oppression, or undue burden or expense” under Rule 26(c). Defendants assert that the subpoenas 24 25 seek information that could be obtained from defendants themselves and are, therefore, designed 26 to harass defendants’ business partners. They do not, however, discuss any particular discovery 27 request, and plaintiffs have shown that at least some of the information sought is within the sole 28 1 control of the third parties on whom the subpoenas were served. Nor do defendants provide any 2 facts suggesting that the discovery requests annoy, embarrass, oppress, or impose an undue 3 burden or expense on the third parties, other than to repeat that production may not be necessary 4 5 if defendants’ motion to dismiss is granted. As discussed above, this risk is not “undue” in the 6 circumstances presented here. 7

8 9 For all of the foregoing reasons, defendants’ request for a stay of discovery (Dkt. # 73) is 10 DENIED. 11

12 13 Dated this 10th day of March, 2022.

15 Robert S. Lasnik 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28