Case 2:21-cv-00750-RSL Document 100 Filed 06/23/22 Page 1 of 5
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`KAELI GARNER, et al.,
`
`
`
`
`
`Plaintiffs,
`
`v.
`
`AMAZON.COM, INC., et al.,
`
`
`
`Defendants.
`
`Cause No. C21-0750RSL
`
`ORDER REGARDING
`PLAINTIFFS’ MOTION TO
`COMPEL
`
`
`
`This matter comes before the Court on “Plaintiffs’ Motion to Compel Discovery
`
`Responses.” Dkt. # 93. Plaintiffs served their first Requests for Production (“RFP Set 1”) on
`
`February 4, 2022. Defendants objected to a number of the requests, arguing, inter alia, that
`
`(a) the requests are overbroad and unduly burdensome to the extent they seek documents from
`
`the period before June 2018, (b) the requests are overbroad, unduly burdensome, oppressive, and
`
`not proportional to the needs of the case to the extent they seek all documents and/or all
`
`communications, and (c) the use of the term “third parties” is argumentative, vague, ambiguous,
`
`and/or undefined. Plaintiffs request that the Court overrule these objections, arguing that they
`
`are inadequately stated and are being used to improperly curtail discovery. Defendants argue
`
`that the motion is procedurally defective, fails to discuss any particular request, and fails to
`
`identify the specific information plaintiffs seek to obtain.
`
`
`ORDER REGARDING PLAINTIFFS’
`MOTION TO COMPEL - 1
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 2:21-cv-00750-RSL Document 100 Filed 06/23/22 Page 2 of 5
`
`
`
`
`
`Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the
`
`Court finds as follows:
`
`A. Misrepresentations
`
`
`
`Defendants argue that the motion to compel should be denied because plaintiffs
`
`misrepresented the history of the dispute in their motion. Defendants offer no authority for the
`
`proposition that discovery should be denied as a sanction for a factual omission or misstatement.
`
`It is undisputed that the parties spent hours in conferences and have exchanged significant
`
`correspondence regarding RFP Set 1 and the responses thereto. The omission and misstatement
`
`defendants identify do not raise an inference that plaintiffs failed to meet and confer in good
`
`faith or otherwise justify an outright denial of their motion.
`
`B. Relevant Time Frame
`
`
`
`The discussions between the parties highlighted a disparity in what they each saw as the
`
`relevant time frame for purposes of RFP Set 1. Plaintiffs believe that documents from the year
`
`prior to the commercial release of the Alexa device will shed light on the device’s design
`
`features, its functionality, and the choices defendants made to safeguard or exploit their
`
`customer’s privacy and that documents from 2013 to the present will reveal how defendants’
`
`disclosures to the public have changed over time. Defendants, on the other hand, take the
`
`position that only documents created during the limitations period – which, they assert, began to
`
`run in June 2018 – need be produced. Through the meet and confer process, the parties reached
`
`an agreement that defendants would produce responsive documents from June 2018 to the
`
`
`ORDER REGARDING PLAINTIFFS’
`MOTION TO COMPEL - 2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 2:21-cv-00750-RSL Document 100 Filed 06/23/22 Page 3 of 5
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`present, with plaintiffs reserving the right to expand the time frame “based on information
`
`revealed in later discovery [] and for specific requests where a broader definition may be
`
`necessary to capture relevant and responsive documents.” Dkt. # 96-2 at 3.
`
`
`
`In their motion, plaintiffs make no effort to show that discovery has revealed a need to
`
`expand the relevant time frame or that a complete response to a particular RFP requires such
`
`expansion. To the extent plaintiffs have changed their mind and now want responses to all RFPs
`
`from July 17, 2013, they have not met and conferred regarding the change. The Court will not
`
`compel production of earlier documents at this time.
`
`C. All Documents and/or Communications
`
`13
`
`
`
`The Court declines to rule on this issue in the abstract. While it may be entirely
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`appropriate to require defendants to produce each and every document and communication
`
`which they contend bound Alexa users to their terms of use/privacy policy (RFP No. 1), forcing
`
`defendants to produce all documents and communications relating to the amount defendants
`
`charge for the use of Alexa on third party devices (RFP No. 28) would appear to have no benefit
`
`over simply producing “documents sufficient to show” those amounts. Without some
`
`information regarding the need for a specific universe of documents, the magnitude of that
`
`universe, and the complexity/expense of production, the Court cannot determine whether a
`
`specific discovery request is proportional to the needs of the case.
`
`25
`
`
`
`
`
`26
`
`27
`
`28
`
`
`ORDER REGARDING PLAINTIFFS’
`MOTION TO COMPEL - 3
`
`

`

`Case 2:21-cv-00750-RSL Document 100 Filed 06/23/22 Page 4 of 5
`
`
`
`D. Third Parties
`
`
`
`A number of the requests in RFP Set 1 seek the disclosure of documents or
`
`communications regarding, to, or from “third parties.” See RFP Nos. 9, 12, 13, 17, 26-31, 33,
`
`and 38-40. Defendants object to this phrase, asserting that it is vague, ambiguous, undefined,
`
`and argumentative in that it assumes without support that third parties had access to Alexa’s
`
`voice recordings.1 Defendants apparently take issue with any suggestion that they disclose voice
`
`recordings to outsiders, preferring to use the terms “employees” and “contractors” to describe
`
`those it allows to access the recordings. See Dkt. # 94 at 101-02 (“Amazon does not transfer to
`
`third parties or otherwise allow third parties to access customer Alexa voice recordings. Amazon
`
`only allows its own employees (and before early 2020, Amazon’s contractors) to access Alexa
`
`voice recordings, in addition to users who can access recordings in the Alexa Voice History.”).
`
`
`
`Plaintiffs argue that the ordinary meaning of “third party” should govern the RFP Set 1,
`
`such that defendants’ responses should disclose all documents and communications with any
`
`person outside of Amazon itself, including contractors. While this argument has some merit,
`
`plaintiffs fail to acknowledge that RFP Set 1 uses the terms “employees,” “contractors,” and
`
`“third parties” to mean different groups. See, e.g., RFP No. 17. If “third party” includes
`
`
`1 Defendants assert that they have not withheld any documents based on these objections (Dkt.
`# 95 at 13), but there is no declaration or other support for such an assertion. To the contrary, the
`correspondence between the parties suggests that defendants unilaterally defined “third parties” to
`exclude contractors and limited their production accordingly.
`
`ORDER REGARDING PLAINTIFFS’
`MOTION TO COMPEL - 4
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 2:21-cv-00750-RSL Document 100 Filed 06/23/22 Page 5 of 5
`
`
`
`contractors, as plaintiffs now argue, why would contractors be mentioned separately in some of
`
`the RFPs?
`
`
`
`Assuming, for purposes of this motion, that plaintiffs’ use of multiple terms for non-
`
`employees created the ambiguity of which defendants complain, the parties could have and
`
`should have resolved any such confusion during the meet and confer process. At this point, if
`
`defendants continue to refuse to produce information regarding their contractors where only the
`
`phrase “third party” is used, plaintiffs may amend RFP Set 1 to expressly seek information
`
`regarding contractors.
`
`
`
`
`
`For all of the foregoing reasons, plaintiffs’ motion to compel is DENIED without
`
`prejudice to the issues being raised again if the parties reach an impasse in the context of a
`
`specific RFP. No additional production will be ordered based on the current record.
`
`
`
`
`
`Dated this 23rd day of June, 2022.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Robert S. Lasnik
`United States District Judge
`
`
`ORDER REGARDING PLAINTIFFS’
`MOTION TO COMPEL - 5
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`