Long v. Amazon.com Services LLC

Opinion

WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 8 MICHAEL E. LONG, Case No. C23-209RSL

9 Plaintiff, ORDER DENYING 10 v. PLAINTIFF’S MOTION TO COMPEL 12 Defendant. 13

14 This matter comes before the Court on plaintiff’s “Motion to Compel” (Dkt. # 20). The 15 Court, having reviewed the submissions of the parties and the remainder of the record, finds as 16 follows: 17 I. Background 18 Pro se plaintiff Michael Long filed this employment discrimination lawsuit against 19 Amazon.com, asserting claims under Title VII of the Civil Rights Act of 1964, as amended. See 20 Dkt. # 1. Plaintiff has filed a motion to compel defendant’s responses to certain requests for 21 admission and requests for production. See Dkt. # 20. 22 a. Plaintiff’s Discovery Requests 23 On May 23, 2023, plaintiff submitted requests for admission asking Amazon to admit or 24 deny the following: 25 1. That employees that started to work for Amazon after the Plaintiff was [sic] promoted to jobs that plaintiff had applied for first, before 26 plaintiff 27 28 1 2. That the Plaintiff Michael E Long su[b]mitted an application over 37 times for promotions where there was over 70 openings 2

3 3. From August 2020 till August 2022 there were fewer than 5 African American Male[s] promoted at DWX3 and DWA2 combine[d], and there 4 were no African American Male[s] appointed to Management or 5 Production Assistant positions

6 4. That prior to September 2021 the plaintiff had no disciplinary action 7 in his record and that the Plaintiff had nearly perfect attendance

8 5. That plaintiff had receive[d] incline1 offers for jobs that went to 9 employees with less Amazon experience 10 Dkt. # 20 at 5-6. On June 6, 2023, plaintiff submitted requests for production asking Amazon to 11 produce responsive documents and video recordings for the following requests: 12 1. A complete list of all employees at DWX3 and DWA2 that were 13 promoted to the following position from August 1, 2020 thru March 31[,] 2022 including Date of Hire, Race, and Ethnicity: YARD MARSHALL, 14 DRIVER TRAINER, PROCESS ASSISTANT, AMBASSADORS,

16 2. The attendance record of the Plaintiff Michael E [L]ong from June 17 30, 2019 thru October 18, 2021

18 3. Video Recording from DWX3 on March 5, 2021, October 14, 2020 19 (or the date of incident between the Plaintiff Michael E Long and associate Evelyn Pricketts) 20

21 4. Access to view all video recording on dates the Plaintiff Michael E Long work[ed] between June 2020 and November 2020 at DWX3 22

23 1 While neither party has provided a definition of the term “incline,” the Court understands it to 24 be a hiring option within the Amazon warehouse system, where individuals who successfully interview 25 for a position are given “the opportunity to either accept or take an incline. An incline means having a job offer on file but not actually taking it. The next time the job is advertised and you apply for it, you 26 get the job without going through another interview.” Ken, Guide to Getting Promoted at an Amazon 27 Warehouse, WAREHOUSE NINJA (Sept. 10, 2021), https://warehouse.ninja/guide-to-getting-promoted-at- an-amazon-warehouse/. The Court offers this tentative definition only for the ease of the reader, as it 28 does not appear to be pertinent to the outcome of this Order or plaintiff’s case. 1 5. Any and all job application[s] su[b]mitted by the Plaintiff Michael E [L]ong including Original Application for hire in June 2019, all 2 applications for Ambassador su[b]mitted in 2020 3 Id. at 8. 4 b. Amazon’s Responses 5 On June 21, 2023, Amazon responded to plaintiff’s request for admissions. Id. at 14. 6 Amazon objected to plaintiff’s first request on the grounds that it was “vague and 7 ambiguous[,] . . . overly broad in terms of time and scope, seeks information that is not relevant 8 to this case, and is unduly burdensome.” Id. at 12. 9 Amazon denied plaintiff’s second request for admission, subject to its objections on the 10 same grounds raised in response to plaintiff’s first request, as well as an objection that the 11 request “seeks information beyond the time frame covered by his allegations in his charge of 12 discrimination filed with the Equal Employment Opportunity Commission.” Id. 13 Amazon denied plaintiff’s third request, subject to its objections on the same grounds 14 raised in response to plaintiff’s second request. Id. 15 Amazon denied plaintiff’s fourth request. Id. 16 Amazon objected to plaintiff’s fifth request on the ground that it was “vague and 17 ambiguous,” and “not reasonably limited in time and scope, seeks information that is not 18 relevant to this case, and is not proportional to the claims and defenses in this case.” Id. at 12. 19 On June 30, 2023, Amazon responded to plaintiff’s requests for production. In addition to 20 a list of general objections, see id. at 18-20, Amazon responded with specific objections to each 21 request. As to defendant’s first request, Amazon objects to the request as vague and ambiguous, 22 overly broad, seeking information that is not relevant to this case, and unduly burdensome 23 insofar as it requests information that is not proportional to needs of the parties’ claims and 24 defenses. Id. at 20. Specifically, Amazon asserts that the request “improperly requests Defendant 25 to create a list that does not exist,” seeks information that is “beyond the scope of the operative 26 EEOC Charge,” and seeks information regarding “positions to which Plaintiff did not apply,” 27 which “are not relevant to his claims in this action.” Id. 28 1 Amazon indicated it would produce responsive records in response to plaintiff’s second 2 request. Id. at 20. 3 As to plaintiff’s third request, Amazon objects to the request on several grounds, 4 including overbreadth and relevance, but states “that it has not located responsive video 5 concerning interaction between Plaintiff and associate Evelyn Picketts. If responsive video is 6 located after a reasonable search, Defendant will produce it.” Id. at 21. 7 As to defendant’s fourth request, Amazon objects to the request on several grounds, 8 including overbreadth and relevance, and “further states that its video footage within a 9 warehouse generally is recorded over after 30 days.” Id. 10 As to defendant’s fifth request, Amazon objects to the request on several grounds, 11 including overbreadth and proportionality, but states that it “will produce Plaintiff[’s] original 12 application(s) and the applications for the positions identified in his Charge to which he alleges 13 he applied in or around January and March 2021 and August 2021, and which are identified in 14 the EEOC Charge as Yard Marshall, Driver Trainer, Learner Trainer, Production Assistant, and 15 Transportation Associate.” Id. at 21-22. 16 c. Meet and Confer 17 On July 7, 2023, plaintiff sent a letter to defense counsel requesting a meet and confer 18 pursuant to Local Rule 37 “regarding a discovery issue resulting from my F[ir]st Request for 19 Production of Documents.” Dkt. # 22-1 at 5. The letter goes on to outline plaintiff’s responses to 20 defendant’s objections to plaintiff’s first, third, fourth, and fifth requests for production. Id. 21 On July 20, 2023, the parties engaged in a telephonic meet and confer. See Dkt. # 20 at 1; 22 Dkt. # 21 at 3. On July 24, 2023, defense counsel sent plaintiff a letter “following up on our 23 telephone conversation to outline what Amazon is prepared to search for and produce in 24 response to your document requests, particularly Requests Nos. 1, 3, 4, and 5.” Dkt. # 22-1 at 8- 25 9. 26 d. Motion to Compel 27 On August 14, 2023, defendant filed the instant motion to compel regarding his requests 28 for admission and production. See Dkt. # 20. As to his requests for production, plaintiff asserts 1 that defendant’s responses to his requests for production “contained objections on most of the 2 request[s] . . . and as yet the Defendant ha[s] not produce[d] any documents or recordings.” Id. 3 at 1-2. He asks that the Court compel defendant to “review and produce all discoverable 4 documents and recordings.” Id. at 2. 5 As to his requests for admission, plaintiff notes that defendant responded with objections 6 to four of his five requests, and asks that the Court compel defendant to admit or deny 7 defendant’s requests for admission. Id. at 1-2. The Court notes that although defendant objects 8 to four of plaintiff’s requests for admission, it appears that defendant has denied requests Nos. 2, 9 3, and 4. See Dkt. # 20 at 12-13. Thus, the Court interprets this request as going to requests Nos. 10 1 and 5. 11 On August 25, defendant responded arguing that “the motion should be denied because 12 Amazon’s objections to the requests are appropriate, Plaintiff has failed to identify how the 13 information sought is relevant to the prosecution of the claims at issue, and Plaintiff has made 14 no attempt to meet and confer concerning Amazon’s responses to Plaintiff’s Request for 15 Admissions.” Dkt. # 21 at 1. 16 Amazon further states that on August 8, 2023, “Amazon produced to Plaintiff 857 pages 17 of documents, which included his personnel files, his original employment application, his 18 resumes, a list of the job requisitions to which he had applied in late 2020 and in 2021 for Yard 19 Marshal, Driver Trainer, Learner Trainer, Process Assistant, and Transportation Assistant, 20 documented feedback from his interviews, and his time and earnings records.” Dkt. # 21 at 4. 21 Plaintiff appears to agree that Amazon has produced 857 pages of documents in response to his 22 discovery requests. See Dkt. # 25 at 2. 23 II. Legal Standard 24 District courts have significant discretion to control discovery. See Fed. R. Civ. P. 25 26(b)(1); see also Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). However, both 26 litigants and third parties are subject to discovery under the Federal Rules of Civil Procedure. 27 See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 30-35 (1984). Rule 26(b)(1) provides that 28 parties 1 [m]ay obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, 2 considering the importance of the issues at stake in the action, the amount 3 in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, 4 and whether the burden or expense of the proposed discovery outweighs its 5 likely benefit. 6 Fed. R. Civ. P. 26(b)(1). Because discovery must be both relevant and proportional, the right to 7 discovery, even plainly relevant discovery, is not limitless. Discovery may be denied where: “(i) 8 the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some 9 other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking 10 discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) 11 the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 12 26(b)(2)(C). 13 On a motion to compel discovery, the moving party carries the “initial burden of 14 demonstrating relevance.” Rockemore v. Aguirre, No. C21-550VAP-ADS, 2022 WL 18397379, 15 at *1 (C.D. Cal. July 1, 2022) (citation omitted). “As part of this burden, the moving party must 16 identify each disputed discovery request, the response to each request, and an argument why the 17 response is deficient.” Id. Once relevance has been established, the burden then shifts to the non- 18 moving party to show that discovery should be disallowed and to support its objections with 19 evidence. Id.; see also Bryant v. Ochoa, No. C07-200JM-PCL, 2009 WL 1390794, at *1 (S.D. 20 Cal. May 14, 2009). 21 III. Analysis 22 a. Motion to Compel Requests for Admission 23 Amazon argues that plaintiff’s motion to compel requests for admission should be 24 dismissed for failure to meet and confer as required by Local Rule 37. See Dkt. # 21 at 5. The 25 Court agrees. This Court’s Local Rules require that “[a]ny motion for an order compelling 26 disclosure or discovery must include a certification, in the motion or in a declaration or affidavit, 27 that the movant has in good faith conferred or attempted to confer with the person or party 28 failing to make disclosure or discovery in an effort to resolve the dispute without court action.” 1 LCR 37(a)(1); see also Fed. R. Civ. P. 37(a)(1). This rule promotes the discovery process 2 envisioned by the Federal Rules of Civil procedure, specifically that “[t]he discovery process . . . 3 should be cooperative and largely unsupervised by the district court.” Sali v. Corona Reg’l Med. 4 Ctr., 884 F.3d 1218, 1219 (9th Cir. 2018). 5 Here, although plaintiff initiated a meet and confer with regard to his requests for 6 production, plaintiff has offered no evidence to dispute defendant’s assertion that the meet and 7 confer on July 20 did not address plaintiff’s requests for admission. Compare Dkt. # 25 8 (plaintiff’s conclusory assertion that “the conversation included all of Defendant’s opposition”) 9 with Dkt. # 22 at 8 (plaintiff’s letter requesting a meet and confer outlining only his concerns 10 relating to defendant’s responses to plaintiff’s requests for production). 11 As other district courts in the Ninth Circuit have explained, the meet and confer rules 12 require that the movant must “personally engage in two-way communication with the 13 nonresponding party to meaningfully discuss each contested discovery dispute in a genuine 14 effort to avoid judicial intervention.” Shuffle Master, Inc. v. Progressive Games, Inc., 170 15 F.R.D. 166, 171 (D. Nev. 1996). To meet this obligation, parties must “treat the informal 16 negotiation process as a substitute for, and not simply a formalistic prerequisite to, judicial 17 resolution of discovery disputes.” Nevada Power Co. v. Monsanto Co., 151 F.R.D. 118, 120 (D. 18 Nev. 1993). This is done when the parties “present to each other the merits of their respective 19 positions with the same candor, specificity, and support during the informal negotiations as 20 during the briefing of discovery motions.” Id. “[J]udicial intervention should be considered 21 appropriate only when (1) informal negotiations have reached an impasse on the substantive 22 issue in dispute, or (2) one party has acted in bad faith, either by refusing to engage in 23 negotiations altogether or by refusing to provide specific support for its [objections].” Id. 24 Here, plaintiff has not certified that his concerns regarding defendant’s responses to his 25 requests for admission were presented to defendant with candor and specificity in a meet and 26 confer. The meet and confer requirement is not one the Court takes lightly. Because the Court 27 finds that plaintiff has failed to meet and confer in good faith with defendant regarding his 28 1 requests for admission, the Court denies plaintiff’s motion with regard to his requests for 2 admission “without addressing the merits of the dispute.” LCR 37(a)(1). 3 b. Motion to Compel Requests for Production 4 Regarding defendant’s requests for production, defendant states in his motion to compel 5 that “as yet the Defendant have not produce[d] any documents or recordings” and asks the Court 6 to “compel Defendant to . . . review and produce all discoverable documents and recordings.” 7 Dkt. # 20 at 2. However, it appears that since plaintiff drafted his motion to compel, Amazon 8 has produced at least 857 documents in response to plaintiff’s requests for production. See Dkt. 9 # 21 at 4; Dkt. # 25 at 2. Accordingly, the Court focuses on the arguments raised in plaintiff’s 10 reply. 11 Plaintiff’s reply argues that (1) his complaint of racial bias following his October 2017 12 employment with Amazon was not included in the documents produced; (2) the “numerous” 13 discrimination complaints plaintiff filed with “Amazon’s very own EEOC department” were not 14 included in the documents produced; (3) the produced documents “did not include any of 15 plaintiff’s employment applications or resumes;” and (4) Amazon’s request that plaintiff agree 16 to a protective order before it produces information regarding the qualifications and identities of 17 individuals who applied for the positions plaintiff applied for was not “needed or appropriate” 18 because plaintiff did “not ask for any Confidential Material.” Dkt. # 25 at 1-2.2 19 As to plaintiff’s first two arguments, the Court notes that nowhere in plaintiff’s requests 20 for production did he request that defendant produce his past complaints. See Dkt. # 20 at 8. 21 Accordingly, the Court does not find fault in defendant’s failure to include plaintiff’s former 22 discrimination complaints in its document production. 23 As to plaintiff’s third argument, the Court notes that Amazon asserts that it produced 24 plaintiff’s “personnel files, original employment application, his resumes, a list of the job 25

26 2 Plaintiff also dedicates much of his reply brief to arguments concerning the timing of his EEOC charge and his argument that Title VII is unconstitutional. See Dkt. # 25 at 1-2. Given that these 27 arguments are outside the scope of the parties’ instant discovery dispute, the Court does not address 28 them here. 1 requisitions to which he had applied in late 2020 and in 2021 for Yard Marshal, Driver Trainer, 2 Learner Trainer, Process Assistant, and Transportation Assistant, documented feedback from his 3 interviews, and his time and earnings records.” Dkt. # 21 at 4. If plaintiff reviews the documents 4 produced by Amazon and is unable to find his “employment applications or resumes,” the Court 5 encourages him to reach out to defense counsel for clarification. If no resolution can be reached 6 cooperatively between the parties, plaintiff may, of course, file another motion to compel with 7 the Court. The Court cautions plaintiff that any future motions to compel must “identify each 8 disputed discovery request, the response to each request, and an argument why the response is 9 deficient.” Rockemore, 2022 WL 18397379, at *1. Without these specific facts, the Court is 10 unable to effectively resolve the discovery dispute. 11 Finally, as to plaintiff’s argument regarding the protective order, the Court notes that 12 Amazon likely has a responsibility to protect the personal information of its employees, see, 13 e.g., Medoff v. Minka Lighting, LLC, No. C22-8885SVW-PVC, 2023 WL 4291973, at *8 (C.D. 14 Cal. May 8, 2023) (collecting cases discussing an employer’s duty to reasonably protect 15 employees’ personally identifiable information), and that plaintiff’s request for a “complete list 16 of all employees at DWX3 and DWA2 that were promoted to the following position from 17 August 1, 2020 thru March 31[,] 2022 including Date of Hire, Race, and Ethnicity,” may seek 18 protected personal information. As plaintiff has not explained why he is reluctant to enter into an 19 agreed protective order, the Court concludes that Amazon’s refusal to release employees’ 20 personal information without the protection of a protective order is reasonable. 21 In conclusion, as plaintiff has failed to demonstrate that defendant’s discovery responses 22 were insufficient, the Court denies his motion to compel responses to his requests for 23 production. 24 // 25 // 26 // 27 // 28 // 1 VI. Conclusion 2 For all the foregoing reasons, plaintiff’s motion to compel (Dkt. # 20) is DENIED. 4 5 DATED this 25th day of September, 2023. 6 7 A

8 Robert S. Lasnik 9 United States District Judge 10

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