Rivera v. Amazon Web Services Inc

6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE AVELARDO RIVERA and YASMINE No. 2:22-CV-00269-JHC ROMERO, individually, and on behalf of all others similarly situated, STIPULATED MOTION AND 10 ORDER MODIFYING DEADLINES Plaintiffs, 11 v. NOTE ON MOTION CALENDAR: JULY 25, 2024 AMAZON WEB SERVICES, INC., a Delaware corporation, 14 Defendant.

Pursuant to Local Civil Rules 7(d)(1) and 10(g), defendant Amazon Web Services, Inc. (“AWS”) and Plaintiffs Avelardo Rivera and Yasmine Romero (“Plaintiffs”) (collectively, the “Parties”), jointly move the Court for a modification and extension of the current discovery and class certification deadlines. In support of this stipulated motion, the Parties state as follows: 1. On April 23, 2024, the Parties filed a Joint Status Report, including proposed deadlines for expert discovery and class certification briefing, which the Court adopted. See Dkts. 196, 199.

2. On May 15, the Parties filed a Stipulated Motion and [Proposed] Order for Extension of Fact Discovery Deadlines, which the Court granted. See Dkts. 200, 201.

3. Accordingly, fact discovery as between the Parties closed on June 17, while fact discovery as to third parties is scheduled to close on August 1.

1 4. With respect to third-party fact discovery, AWS identified tens of thousands of AWS Rekognition customers through its discovery responses and document productions. See, e.g., AWS_00009345, AWS_00009868, AWS_00009869. Plaintiffs served third-party discovery requests seeking information from several of those AWS customers.

5 5. Plaintiffs informed AWS and the Court that they may seek to modify the current proposed class definition based on information obtained during the ongoing third-party fact discovery period. See, e.g., Dkt. 187 at 4 n.2 (“Based on Plaintiffs’ investigation, Plaintiffs may [re]define the class as Illinois end users of only certain AWS customers: ProctorU and large customers who likely (if not certainly) have Illinois end users.”); compare Dkt. 88 ¶ 52 (Second Amended Complaint defining the proposed class as “[a]ll Illinois residents who had their biometric information or biometric identifiers collected, captured, received, possessed, or otherwise obtained by Amazon’s Rekognition service and stored in AWS’s servers”).

13 6. On May 17, AWS served written discovery requests on Plaintiffs. Among other things, AWS’s written discovery requests asked Plaintiffs to describe the modified class definition or definitions that Plaintiffs may or will propose in this matter.

16 7. On June 17, Plaintiffs served their responses and objections to AWS’s discovery requests. In those responses and objections, Plaintiffs stated they are not yet able to describe the modified class definition or definitions they may or will propose because third-party fact discovery is ongoing and that discovery may impact whether and how Plaintiffs may seek to modify the class definition proposed in the Second Amended Complaint.

21 8. On June 27, the Parties met and conferred to discuss the most efficient way to proceed with discovery and class certification briefing given the procedural posture discussed above. The Parties agreed that the current case schedule should be amended for two reasons, both of which constitute good cause to amend the current case schedule.

25 9. First, Plaintiffs’ position is that they must complete third-party fact discovery with AWS’s customers before they can determine which customers’ end users can appropriately be included in the class. Upon completion, Plaintiffs will be able to define the class (or classes) they will ask the court to certify under Rule 23.

3 10. Second, AWS’s position is that it must be allowed to conduct fact and expert discovery after Plaintiffs have identified their proposed modified class definition or definitions.

5 Otherwise, AWS would be unduly prejudiced because it would have no opportunity to conduct fact and expert discovery based on the class or classes for which Plaintiffs intend to seek certification. AWS has identified tens of thousands of AWS customers in discovery, but AWS has no way of knowing, at this stage of the case, which end users of which AWS customers will fall within the scope of Plaintiffs’ proposed class or classes. For the same reason, requiring AWS to conduct all fact and expert discovery in support of its class certification defenses before Plaintiffs have identified the class or classes they will seek to certify would be wasteful and inefficient.

13 11. Therefore, the Parties jointly request that the Court modify the current case schedule by: 15 i. Staying all existing expert discovery deadlines.

16 ii. Staying all existing class certification briefing deadlines.

17 iii. Granting Plaintiffs leave to identify (through an amended complaint or 18 supplemental interrogatory responses), no later than August 8, the class 19 definition or definitions for which they intend to seek certification. For the 20 avoidance of doubt, if Plaintiffs decide to seek certification of a class 21 composed of end users of certain AWS Rekognition customers, then Plaintiffs 22 must identify those AWS customers.

23 iv. Granting AWS leave to conduct party and third-party fact discovery related to 24 AWS’s class certification defenses and Plaintiffs’ August 8 class definition or 25 definitions, and granting Plaintiffs leave to conduct third-party fact discovery 1 related to AWS’s class certification defenses and Plaintiffs’ August 8 class 2 definition or definitions.

3 v. Ordering the Parties to file, no later than August 15, a joint stipulation 4 proposing deadlines for (i) AWS to conduct party and third-party fact 5 discovery related to AWS’s class certification defenses and Plaintiffs’ August 6 8 class definition or definitions, and for Plaintiffs to conduct third-party fact 7 discovery related to AWS’s class certification defenses and Plaintiffs’ August 8 8 class definition or definitions; (ii) the Parties to complete expert discovery 9 regarding class certification; and (iii) the Parties to complete class certification 10 briefing.

11 12. Under Federal Rule of Civil Procedure 16(b)(4), “[a] schedule may be modified only for good cause and with the judge’s consent.” Good cause exists here because, as described above, the Parties’ proposed approach accommodates Plaintiffs’ need to finalize a class definition or definitions after the current third-party fact discovery period ends, on one hand, and AWS’s need to conduct discovery in support of its class-certification defenses after learning the class or classes for which Plaintiffs will seek certification, on the other hand.

17 13. Further, the requested modification of the schedule is timely because the Court has already granted the Parties leave to conduct third-party fact discovery until August 1, expert discovery has not begun, and the Parties have not started class certification briefing. See Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010) (requests for extensions of time made before the applicable deadline has passed should normally be granted in the absence of bad faith or prejudice).

23 14. Accordingly, the Parties respectfully request that the current case schedule be modified as follows: 2 Event Current Deadline Proposed Deadline 3 Parties’ deadline to complete the August 1, 2024 August 1, 2024 current phase of third-party fact (unchanged) 4 discovery Plaintiffs’ deadline to identify the N/A August 8, 2024 6 class definition or definitions for which they intend to seek 7 certification (through an amended complaint or supplemental interrogatory responses) 9 Parties’ deadline to file a joint N/A August 15, 2024 stipulation proposing deadlines for (i) AWS to conduct party and 11 third-party fact discovery related to AWS’s class certification 12 defenses and Plaintiffs’ August 8 class definition or definitions and for Plaintiffs to conduct third- party fact discovery related to AWS’s class certification 15 defenses and Plaintiffs’ August 8 class definition or definitions; (ii) 16 the Parties to complete expert discovery regarding class certification; and (iii) the Parties 18 to complete class certification briefing 20 AWS’s expert disclosures September 9, 2024 Stayed pending the regarding class certification issues Parties’ joint 21 stipulation proposing deadlines Plaintiffs’ rebuttal expert November 4, 2024 Stayed pending the disclosures regarding class Parties’ joint 24 certification issues stipulation proposing deadlines Completion of expert discovery December 9, 2024 Stayed pending the 2 regarding class certification issues Parties’ joint stipulation proposing 3 deadlines 4 Deadline to file Daubert motions January 27, 2025 Stayed pending the regarding class certification Parties’ joint 5 experts stipulation proposing deadlines Plaintiffs’ deadline to file motion January 27, 2025 Stayed pending the 7 for class certification Parties’ joint stipulation proposing deadlines 9 Defendant’s deadline to respond March 3, 2025 Stayed pending the to motion for class certification Parties’ joint stipulation proposing 11 deadlines 12 Reply in support of class March 24, 2025 Stayed pending the certification Parties’ joint 13 stipulation proposing deadlines Parties’ deadline to file joint Fourteen (14) days Fourteen (14) days 15 status report to propose post-class after Court’s ruling after Court’s ruling certification deadlines on motion for class on motion for class 16 certification certification (unchanged) WHEREFORE, the Parties respectfully request that the Court enter an order modifying the current case deadlines in accordance with this Stipulated Motion.

Dated: July 25, 2024 By: _s/ Ryan Spear________________________ Ryan Spear, WSBA No. 39974 [email protected] Nicola Menaldo, WSBA No. 44459 [email protected] Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, Washington 98101-3099 Telephone 206.359.8000 Facsimile 206.359.9000 Attorneys for Defendant AMAZON WEB SERVICES, INC. 10 By: _s/ Schuyler Ufkes_______________________ J. Eli Wade-Scott (admitted pro hac vice) 11 [email protected] Schuyler Ufkes (admitted pro hac vice) 12 [email protected] EDELSON PC North LaSalle Street, 14th Floor 14 Chicago, Illinois 60654 Tel: 312.589.6370 15 Fax: 312.589.6378 Attorneys for Plaintiffs Avelardo Rivera and Yasmine Romero 18 LCR 7(e) Certification I certify that this memorandum contains 1345 words, in compliance with the Local Civil Rules. s/ Ryan Spear 1 ORDER 3 IT IS SO ORDERED.

4 DATED this 25th day of July, 2024.

5 d / oC Lu & Obur— JOHN H. CHUN 6 UNITED STATES DISTRICT JUDGE STIPULATED MOTION AND ORDER (No. 2:22-cv-00269-JHC) — 8