Crosby v. Amazon.com Inc

THE HONORABLE JOHN C. COUGHENOUR UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE CRAIG CROSBY and CHRISTOPHER CASE NO. C21-1083-JCC JOHNSON, on behalf of themselves and all others similarly situated, ORDER Plaintiffs, v. AMAZON.COM, INC., Defendant.

16 This matter comes before the Court on Plaintiffs’ motion to compel and for sanctions (Dkt. No. 96) along with the parties’ motions to seal (Dkt. Nos. 99, 109). Having duly considered the record and the briefing, the Court GRANTS in part and DENIES in part each motion for the reasons described below.

20 A. Motion to Compel 21 The Court has issued four discovery orders preceding the instant motion. (See Dkt. Nos. 49, 58, 74, 90.) Pursuant to those orders, Defendant must produce discovery responsive to Plaintiffs’ jurisdictional requests, at least as they relate to Amazon Warehouse Deals’ (“AWD”) products containing 18650 rechargeable batteries, regardless of whether the battery type is stated within AWD’s advertising (i.e., “title 18650 batteries” and “non-title 18650 batteries”), so long as the advertising includes potentially dubious assertions regarding the batteries’ energy capacity. (See id.) In again moving to compel, Plaintiffs repeat their assertion that Defendant’s search for sales of such products during the relevant time period1 was deficient. (See Dkt. No. 96 at 10.) Specifically, Plaintiffs’ take issue with two aspects of Defendant’s search of its product catalogue (as described below), and additionally complain that Defendant’s 30(b)(6) deponent was not prepared to respond to questions during his deposition. (Dkt. No. 96 at 12–14.).

6 As to the search, Defendant limited it to those products referencing “18650” as a searchable product attribute (what it describes as a search of its catalogue’s “first-class attributes”). (Dkt. No. 115 at 9.) Nor did Defendant search its accompanying image catalogue for dubious energy claims, (see Dkt. No. 96 at 8), despite prior direction to do so. (See Dkt. No. 90 at 3.) At least with respect to the catalogue data search, Defendant asserts the method it employed, i.e., first limiting its search to products with an “18650” reference, was the most logical way. (Dkt. No. 115 at 9.) This is because Defendant has no mechanism to directly identify non-title 18650 batteries, or products containing those batteries, within its product catalogue. (Id.) 15 1. 18650 Battery Search 16 Again, the Court ordered Defendant to provide Plaintiffs with jurisdictional discovery relevant to AWD’s sales of both title and non-title 18650 rechargeable batteries. (Dkt. No. 90 at 3.) The Court did not limit this order to sales of products with an “18650” stored as a value somewhere in AWD’s catalogue. While Defendant’s strategy correctly identifies those products, it does not do enough to capture the sales of all non-title 18650 batteries. Specifically, to the extent that there is “no first-class attribute that identifies through a binary Boolean selection— Yes/No or True/False—a product as containing an 18650 battery,” (Dkt. No. 115 at 9), the Court does not view this as an excuse to avoid providing Plaintiffs with the discovery needed to This is presently limited to those products sold from May 4 through the complaint date of August 13, 2021.

1 establish this Court’s jurisdiction over their claims.

2 As a result, Defendant must comply with its discovery obligation through one of two means: First, Defendant may provide Plaintiffs with a detailed description of any first-class attribute that could hold information which indicates a product contains non-title 18650 batteries.2 Plaintiffs, once equipped with a description of these attributes, would then need to provide search terms to Defendant, and Defendant’s custodians must then perform a search using those terms.3 Second, if this is overly burdensome, Defendant shall provide Plaintiffs with raw catalogue data of all AWD sales during the relevant time period. See Fed. R. Civ. P. 34(b)(2)(E)(i). It would then be Plaintiffs’ obligation to concoct a methodology to search for potentially responsive products within this data, in its effort to support the jurisdictional requirement(s) in this case.

12 2. Energy Capacity Image Searching 13 As the Court has previously ordered, Defendant must search for advertised energy capacity in any of the text fields or accompanying photos of products sold by AWD during the relevant period, if they contain title and/or non-title 18650 batteries. (See Dkt. No 58 at 3.) Yet, Defendant has not done so. (See Dkt. No. 101-1 at 94.) Again, Defendant has two options. First, after properly using Plaintiffs’ search terms as directed above, Defendant must review all images for those products and, to the extent they contain a claimed energy capacity, provide that image to Plaintiffs. Second, if this is overly burdensome, Defendant shall provide Plaintiffs with all images of products sold by AWD during the relevant time period. See Fed. R. Civ. P. 2 This directive should be read broadly, but reasonably. For example, Defendant should be expected to provide information for an attribute relating to the manufacturer (e.g., where the value “Dyson” might be stored for a Dyson vacuum). However, Defendant is not expected to provide information relating to a product’s color, for example. At a minimum this must include all 23 attributes noted by Plaintiffs. (See Dkt. No. 100 at 11.)

25 3 Similarly, this should also be reasonable as to not burden the Defendant. Plaintiffs must explain to Defendant why they think this search term may reasonably result in a successful search for products containing non-title 18650 batteries.

1 34(b)(2)(E)(i). It would then be Plaintiffs’ obligation to concoct a methodology to search for potentially responsive products within these images.

3 3. 30(b)(6) Representative 4 Plaintiffs argue Defendant’s corporate representative was unprepared for a deposition relating to two topics in Plaintiffs’ jurisdictional discovery request. (See Dkt. No. 96 at 12.)

6 However, in the Court’s view, the issue is relevance—not preparedness. Plaintiffs, in moving to compel, clearly believe that a Rule 30(b)(6) deponent is required to answer questions regarding Amazon’s corporate structure and the operations of its branches other than AWD. (Id. at 13.)

9 And they take issue with the fact that the designated representative, Ashkay Atwe, was unable to do so. (Id.)4 But the Court fails to see how Amazon’s overall organizational structure and/or the operations of non-AWD branches is relevant to determining how much revenue AWD generates from the sale of 18650 batteries with dubious energy claims.

13 4. Sanctions 14 As a sanction for Defendant’s alleged failure to comply with this Court’s prior orders, Plaintiffs ask the Court to extend the relevant time period subject to jurisdictional discovery.

16 (Dkt. No. 96 at 14.) Indeed, sanctions are appropriate when a party fails to obey a discovery order. See Fed. R. Civ. P. 37(b)(2). But the situation here is more nuanced. Defendant did not refuse to search for non-title 18650 products; rather, it would seem its data systems do not provide a ready way to do so. (See Dkt. No. 111 at 7–9.) And while Defendant failed to work collaboratively with Plaintiffs to fashion a work-around, this, alone, is not sufficient to warrant sanctions. Moreover, the Court notes that its jurisdiction depends on the state of things at the time of the action. Mollan v. Torrance, 22 U.S 537, 539 (1824). As such, there is no bases to The Court does not agree that Mr. Atwe “was unable to provide relevant information as to even the most basic matters concerning Amazon Warehouse Deals.” (Dkt. No. 121 at 8.) All instances of Mr. Atwe’s inadequacies as a 30(b)(6) deponent appear related to matters not directly related to AWD.

1 extend the subject time period, absent an amended complaint. See Grupo Dataflux v. Atlas Glob.

2 Grp. L.P., 541 U.S. 567, 570–71 (2004) (discussing the ‘time-of-filing” rule).

3 B. Motions to Seal 4 While the public has a common law right to inspect and copy public records, including those from judicial proceedings, these rights are not absolute. Foltz v. State Farm Mut. Auto. Ins.

6 Co. 331 F.3d 1122, 1135 (9th Cir. 2003). So long as the Court finds there is “good cause” to preserve the secrecy of a discovery document attached to a non-dispositive motion, the common law right falls away. Id. Here, the parties stipulated to a protective order regarding the production of confidential material, which the Court endorsed. (See Dkt. No. 31.)5 And portions of Plaintiffs’ motion to compel, along with the related briefing and supporting declarations, contain the type of proprietary confidential information subject to the aforementioned protective order.

12 For this reason, sealing those portions is warranted. However, Plaintiff filed under seal large portions of deposition transcripts for two of Defendant’s Rule 30(b)(6) representatives, (Dkt.

14 Nos. 101-1, 101-2). To the extent they discuss Defendant’s proprietary financial information and/or sales data, along with how Defendant structures and must therefore construct searches of its data catalogue, they should remain sealed. But the remainder should not.

17 C. Remedial Actions 18 Accordingly, the Court GRANTS in part and DENIES in part Plaintiffs’ motion to compel (Dkt. No. 96) and the parties’ motions to seal (Dkt. Nos. 99, 109) and ORDERS as follows: 21 • 18650 Battery Search – Defendant shall do one of the following within 15 days of 22 this Order: “When a court grants a protective order for information produced during discovery, it already has determined that ‘good cause’ exists to protect this information from being disclosed to the public by balancing the needs for discovery against the need for confidentiality.” Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002).

1 o Provide Plaintiffs with the names of all 878 first-class attributes it 2 searched through to create the initial set of products. Once these names are 3 received, Plaintiffs may seek descriptions from Defendant of any attribute 4 it deems relevant to finding products that either are or contain 18650 5 rechargeable batteries. These descriptions, which shall be provided within 6 15 days of any request from Plaintiffs, must include the type of field (e.g., 7 freeform) in addition to an explanation of what data is stored in the field.

8 Once Plaintiffs have had an opportunity to review these descriptions, they 9 will then provide values for Defendant to search for in any of these 10 attributes to create a subset of products that either are or contain 18650 11 rechargeable batteries. The resulting search must be completed, and the 12 results remitted to Plaintiffs within 15 days of receiving the terms from 13 Plaintiffs.

14 o Provide Plaintiffs with all raw data related to every product sold during 15 the relevant jurisdictional discovery period, so Plaintiffs may conduct their 16 own search for potentially responsive products. This disclosure should 17 include every product sold during the relevant time period, with every 18 value in all first-class attributes.

19 • Energy Capacity Image Search – Defendant shall do one of the following: 20 o After conducting the search for 18650 batteries as directed above, within 21 15 days, it shall review accompanying photographs for indications such 22 products make any energy capacity related claims and provide those 23 images to Plaintiffs.

24 o Provide Plaintiffs with all such raw images within 15 days of this Order so 25 Plaintiffs can conduct their own search for responsive products.

26 • Sealed filings (Dkt. Nos. 101-1, 101-2) – Defendant shall do the following within 1 15 days: 2 o Review Mr. Atwe’s and Mr. Spiezel’s depositions and file redacted 3 versions with the Court, based on the guidance above.6 5 DATED this 7th day of December 2023.

A John C. Coughenour 9 UNITED STATES DISTRICT JUDGE The Court anticipates Mr. Spiezel’s deposition will be heavily redacted while Mr. Atwe’s deposition will contain far fewer redactions.