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`Case 2:21-cv-00750-RSL Document 106 Filed 08/18/22 Page 1 of 17
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`THE HONORABLE ROBERT S. LASNIK
`
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
` Case No.: 2:21-cv-00750-RSL
`DEFENDANTS’ MOTION TO COMPEL
`NOTE ON MOTION CALENDAR:
`September 2, 2022
`
`
`KAELI GARNER, et al.,
`Plaintiffs,
`
`v.
`
`AMAZON.COM, INC., a Delaware
`Corporation, and AMAZON.COM
`SERVICES LLC, a Delaware Limited
`Liability Company,
`Defendants
`
`
`
`DEFENDANTS’ MOTION TO COMPEL
`CASE NO.: 2:21-CV-00750-RSL
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`FENWICK & WEST LLP
`1191 SECOND AVENUE, 10TH FLOOR
`SEATTLE, WASHINGTON 98101
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`Case 2:21-cv-00750-RSL Document 106 Filed 08/18/22 Page 2 of 17
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`TABLE OF CONTENTS
`
`PAGE
`INTRODUCTION ...........................................................................................................................1
`BACKGROUND .............................................................................................................................2
`LEGAL STANDARD ......................................................................................................................4
`ARGUMENT ...................................................................................................................................4
`I.
`PLAINTIFFS SHOULD BE ORDERED TO PROVIDE COMPLETE,
`VERIFIED, AND AMENDED INTERROGATORY RESPONSES. ..........................4
`A.
`Plaintiffs Must Identify Which Interactions with Alexa They
`Allege Contain the Voice of Each Plaintiff and Which They
`Allege to Be at Issue. ...................................................................................4
`The Court’s Order Should Instruct Each Plaintiff to Provide
`Verified Amended Responses No Later Than Three Weeks
`Before Their Deposition. .............................................................................8
`PLAINTIFFS SHOULD BE ORDERED TO COMPLETE THEIR
`DOCUMENT PRODUCTION. .....................................................................................9
`A.
`Plaintiffs Should Produce Responsive Documents Regarding
`Alexa Settings. .............................................................................................9
`Plaintiffs Should Be Ordered to Provide Search Term Hit
`Reports as Required by the ESI Order. ......................................................11
`The Court’s Order Should Direct Plaintiffs to Complete Their
`Document Production by September 16, 2022. .........................................11
`CONCLUSION ..............................................................................................................................12
`
`
`
`B.
`
`II.
`
`B.
`
`C.
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`Case 2:21-cv-00750-RSL Document 106 Filed 08/18/22 Page 3 of 17
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`
`TABLE OF AUTHORITIES
`
`CASES
`
`PAGE(S)
`
`Bolding v. Banner Bank,
`No. C17-0601RSL, 2020 U.S. Dist. LEXIS 118111 (W.D. Wash. July 6,
`2020) ........................................................................................................................................12
`
`Dunford v. Am. DataBank, LLC,
`64 F. Supp. 3d 1378 (N.D. Cal. 2014) .....................................................................................10
`
`Famulare v. Gannett Co.,
`No. 2 :20-cv-13991(WJM), 2022 U.S. Dist. LEXIS 47946 (D.N.J. Mar. 17,
`2022) ........................................................................................................................................10
`
`Goldman v. Alhadeff,
`No. C89-1061R, 1990 U.S. Dist. LEXIS 11808 (W.D. Wash. Jan. 31, 1990) ........................10
`
`Olympic Air, Inc. v. Helicopter Tech. Co.,
`No. C17-1257RSL, 2020 U.S. Dist. LEXIS 203100 (W.D. Wash. Oct. 30,
`2020) ..........................................................................................................................................4
`
`Shumpert v. Healthpoint Ctrs. of King Cty.,
`No. C18-1680 TSZ, 2020 U.S. Dist. LEXIS 48839 (W.D. Wash. Mar. 20,
`2020) ......................................................................................................................................6, 9
`
`State v. Clark,
`129 Wn.2d 211, 916 P.2d 384 (1996) ........................................................................................5
`
`State v. David Smith,
`85 Wn.2d 840, 540 P.2d 424 (1975) ..........................................................................................5
`
`State v. John Smith,
`189 Wn.2d 655, 405 P.3d 997 (2017) ........................................................................................5
`
`State v. Townsend,
`147 Wn.2d 666, 57 P.3d 255 (2002) ..........................................................................................6
`
`United States ex rel. Dahlstrom v. Sauk-Suiattle Indian Tribe,
`No. C16-0052JLR, 2019 U.S. Dist. LEXIS 147714 (W.D. Wash. Aug. 29,
`2019) ..........................................................................................................................................9
`
`STATUTES
`
`Cal. Penal Code §§ 631-632, 637.2(a) .............................................................................................5
`
`Federal Wiretap Act .........................................................................................................................6
`
`RCW § 9.73.030(1)(b) .....................................................................................................................5
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`DEFENDANTS’ MOTION TO COMPEL
`CASE NO.: 2:21-CV-00750-RSL
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`Case 2:21-cv-00750-RSL Document 106 Filed 08/18/22 Page 4 of 17
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`TABLE OF AUTHORITIES
`(CONTINUED)
`
`OTHER AUTHORITIES
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`PAGE(S)
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`Fed. R. Civ. P. 23 ...........................................................................................................................10
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`Fed. R. Civ. P. 26 .......................................................................................................................4, 10
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`Fed. R. Civ. P. 33 .........................................................................................................................8, 9
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`Fed. R. Civ. P. 34 .....................................................................................................................10, 12
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`Fed. R. Civ. P. 37 .............................................................................................................................1
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`Case 2:21-cv-00750-RSL Document 106 Filed 08/18/22 Page 5 of 17
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`Pursuant to Fed. R. Civ. P. 37(a), Amazon moves to compel responses to its First Set of
`Requests for Production and First and Second Set of Interrogatories.
`INTRODUCTION
`Plaintiffs are 21 individuals who initiated this lawsuit and seek to be certified to represent
`both a nationwide class and 17 subclasses in claims based on their interactions with Alexa. See
`Complaint (Dkt. 59) ¶¶ 1, 125. Although the Court dismissed many of those claims (see Dkt. 91),
`for those remaining, the nature of each Plaintiff’s interactions with Alexa presents critical issues
`as to typicality, commonality, adequacy, superiority, and manageability. Fact discovery is
`scheduled to close on December 16, 2022, with Plaintiffs’ (and other witnesses’) depositions to
`begin around October 3. Timely completion of discovery requires Plaintiffs to promptly deliver
`their long-delayed responses to Amazon’s discovery.
`Amazon first served discovery requests more than five months ago in March 2022. In
`response to Amazon’s requests for production, Plaintiffs have produced to date only 149
`documents from four custodians. Plaintiffs also have not provided any ESI search term hit report
`(identifying the number of records for each search term) or disclosed required information about
`their search methodology. In response to Amazon’s interrogatories, Plaintiffs have provided
`incomplete or non-responsive answers, or Plaintiffs have simply refused to answer. After months
`of meeting and conferring, Plaintiffs continue to refuse to identify the particular recordings that
`form the basis of their claims. To ease any burden, Amazon proposed that, instead of written
`interrogatory responses, Plaintiffs could simply annotate Alexa transcripts to identify which
`recordings they contend (1) contain a Plaintiff’s voice, (2) contain an alleged “conversation”
`subject to the Washington statute (rather than a word or indiscernible sounds), (3) are confidential
`or private (as also required subject to statute), (4) correspond to certain Plaintiffs’ allegations of
`recording in the Complaint, and/or (5) are not directed at the Alexa Voice Service. Plaintiffs have
`refused to provide this critical information, even though they are the only ones who can do so.
`Without it, Amazon does not know the universe of recordings at issue, and consequently cannot
`prepare its defenses or address Plaintiffs’ suitability as class representatives. Indeed, Plaintiffs’
`identification of which recordings contain their voices and are the subject of their claims is
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`Case 2:21-cv-00750-RSL Document 106 Filed 08/18/22 Page 6 of 17
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`indispensable to determining their individual knowledge of how Alexa works and the propriety of
`those claims.
`Plaintiffs are the bottleneck, and the Court should compel them to provide discovery now
`to move this case forward.
`
`BACKGROUND
`On March 11 and March 24, 2022, Amazon served the First and Second Sets of
`Interrogatories (“ROG”), respectively. Declaration of Y. Monica Chan ¶¶ 2-3, Exs. A-B. On
`April 1, 2022, Amazon served the First Set of Requests for Production (“RFP”). Id. ¶ 4, Ex. C.
`On April 11, 2022, Plaintiffs produced a one-page document: a chart “listing plaintiffs’
`email addresses.” Id. ¶ 5. Plaintiffs then did not produce a single document for more than three
`months, until the end of July 2022. Id. ¶ 21.
`On May 9, Plaintiffs proposed to Amazon a list of ESI search terms. Id. ¶ 6. Plaintiffs did
`not provide the required search term hit report. See ESI Order (Dkt. 89), § C.2.a.i. Two weeks
`later, Amazon proposed additional search terms and asked Plaintiffs to “provide a search term hit
`list or hit report … to facilitate the Parties’ discussions over the search terms.” Chan Decl. ¶ 6.
`Plaintiffs did not respond to Amazon’s proposal until two months later, in July 2022. Id. Ex. J.
`On May 16, 2022, after obtaining an extension, Plaintiffs served responses and many
`boilerplate objections to Amazon’s ROGs and RFPs. Chan Decl. ¶ 7, Exs. D-F. Plaintiffs at first
`agreed to produce responsive documents for only half of the RFPs (24 out of 47). See id. Ex. D.
`As for the ROGs, Plaintiffs either refused to answer or provided non-responsive answers to most
`of them. See, e.g., id. Exs. E-F. Several Plaintiffs also failed to provide the most basic information,
`like the email address used to register (and identify) the Alexa-enabled device(s) at issue. Id.
`On June 2, Amazon sent Plaintiffs a letter outlining the myriad deficiencies in their
`responses. Chan Decl. ¶ 8, Ex. G. Among other issues, Plaintiffs refused to identify which voice
`recordings in the identified Amazon accounts—accounts that often have multiple users—are the
`subject of their claims. Id. Ex. G at 5-6. Amazon also asked Plaintiffs to provide “amended and
`complete responses” and confirm that they will produce responsive documents by June 16, 2022
`(i.e., more than two months after service). See id.
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`Case 2:21-cv-00750-RSL Document 106 Filed 08/18/22 Page 7 of 17
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`By letter dated June 9, Plaintiffs stood on their objections to most RFPs (except for RFP
`34). Chan Decl. ¶ 9, Ex. H. The letter provided additional, unsworn information on some Plaintiffs
`and represented that others would later “supplement their responses” to various ROGs. Id. at 2-3.
`The parties met and conferred for five sessions over the next two months, on June 14,
`June 23, July 1, July 6, and July 8. Chan Decl. ¶ 10. During these sessions, Amazon pressed
`Plaintiffs’ counsel to provide a firm timeline for document production. Id. ¶ 11; see also id. Ex. I
`at 1. On June 21, Plaintiffs represented that they “expect to make an initial production in July.”
`Id. Ex. I at 1. Amazon also repeatedly asked Plaintiffs to identify the scope and sources of
`Plaintiffs’ search for responsive documents; provide search term hit reports; and provide amended
`and complete interrogatory responses from Plaintiffs. Id. ¶¶ 11, 13-14. Time and again, Plaintiffs’
`counsel put off or ignored these requests. See, e.g., id. Exs. J-L.
`The parties exchanged more letters after the meet-and-confers, on July 8 from Plaintiffs
`and on July 15 from Amazon. Id. Ex. J-K. On July 28, Plaintiffs said they would produce non-
`privileged responsive documents to RFPs 10-11, 21, 26, 36, 37, and 39-41. Id. Ex. L at 2-3.
`On July 29—four months after service of the RFPs, and waiting until the last possible
`business day for their promise of “an initial production in July” (id. Ex. I at 1)—Plaintiffs produced
`a limited set of 148 documents from just four custodians, in addition to the list of emails. Id. ¶ 21.
`On August 3, Amazon requested a final call to confirm that the parties have reached an
`impasse on all other issues. Id. Ex. N at 4. Plaintiffs offered a single time slot, more than a week
`away, on August 12. Id. Before the call, Amazon identified the persistent areas of disputes, asked
`for amended interrogatory responses by August 11, and requested confirmation that Plaintiffs
`would complete document production by September 1. Id. at 3. Plaintiffs ignored both requests.
`During the August 12 session, the parties discussed but reached an impasse on RFP 15 and
`ROGs 5-8/9.1 Chan Decl. ¶ 23, Ex. N at 2. Plaintiffs’ counsel promised to make an August
`production and to “substantially complete”—a phrase that Plaintiffs failed to explain when
`Amazon asked for specifics (see id. ¶ 24, Ex. N at 1)—their document production by
`
`
`1 Plaintiffs Caron Watkins, Diane McNealy, James Robinson, Rosa Comacho, Selena Johnson, and Ronald
`Johnson each received an extra ROG 8 addressing their particular allegations. See Chan Decl. ¶ 3; see, e.g.,
`id. Ex. F at ROG 8. Therefore, numbering for the ROGs varies by Plaintiff starting with ROG 8.
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`September 16, 2022. Id. Ex. M at 3. Plaintiffs’ counsel agreed to provide amended verified
`interrogatory responses from Plaintiffs no later than three weeks prior to their depositions. Id. Ex.
`N at 2. They also promised to provide the ESI search term hit report for all but one Plaintiffs,
`including information such as the sources searched; as of this date, Plaintiffs still have not provided
`this promised hit report. Id. ¶¶ 23, 25. On August 15, Plaintiffs’ counsel sent Amazon a letter
`purporting to summarize the August 12 meet-and-confer. Id. Ex. M.
`In total, the parties have spent more than six hours, over six meet-and-confer sessions, and
`exchanged at least nine letters relating to Amazon’s discovery requests. Chan Decl. ¶¶ 6, 11, 13-
`16, 23, Exs. G-M. Delay and unfulfilled promises are recurring themes, and Plaintiffs’ discovery
`responses remain woefully deficient. See id. Ex. O. December 2022 is the end of fact discovery;
`Amazon intends to comply with this deadline, deposing Plaintiffs and relevant third parties in the
`coming months. Amazon thus respectfully seeks the Court’s assistance to keep the case on track.
`LEGAL STANDARD
`A party “may obtain discovery regarding any nonprivileged matter that is relevant to any
`party’s claim or defense.” See Fed. R. Civ. P. 26(b)(1). “The party who resists discovery has the
`burden to show what discovery should not be allowed, and has the burden of clarifying, explaining,
`and supporting its objections.” Olympic Air, Inc. v. Helicopter Tech. Co., No. C17-1257RSL,
`2020 U.S. Dist. LEXIS 203100, at *8-9 (W.D. Wash. Oct. 30, 2020) (Lasnik, J.) (citation omitted).
`ARGUMENT
`
`I.
`
`PLAINTIFFS SHOULD BE ORDERED TO PROVIDE COMPLETE, VERIFIED,
`AND AMENDED INTERROGATORY RESPONSES.
`A.
`Plaintiffs Must Identify Which Interactions with Alexa They Allege Contain
`the Voice of Each Plaintiff and Which They Allege to Be at Issue.
`ROG 5 (For all Alexa audio recordings from the Amazon accounts that You identify in
`Response to Interrogatory 2, identify (by date, time, and content) each recording that
`contains Your voice.)
`ROG 6 (For each Alexa audio recording You identify in Response to Interrogatory 5 as
`containing Your voice, identify whether You contend that the content of the recording [was
`private/confidential/made secretly].)
`ROG 7 (For each Alexa audio recording that You identify in Response to Interrogatory 5
`as containing Your voice, identify whether You contend that the recording was of a
`conversation.)
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`DEFENDANTS’ MOTION TO COMPEL
`CASE NO. 2:21-CV-00750-RSL
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`Case 2:21-cv-00750-RSL Document 106 Filed 08/18/22 Page 9 of 17
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`ROG 8 (to Plaintiff Caron Watkins) (Identify (by date, time, and contents) the
`“communications” relating to Your work as a city prosecutor as alleged in paragraph 72 of
`the Amended Complaint.)
`ROG 8/9 (For each Alexa audio recording that You identify in Response to Interrogatory
`5, identify whether You contend that the recording of your voice was of a communication
`not directed to the Alexa Voice Service.)
`
`Plaintiffs still have not identified which recordings are at issue in this case. Only Plaintiffs
`or their counsel, not Amazon, can identify which recordings contain Plaintiffs’ voices. Plaintiffs
`alone know which of those recordings they claim are confidential or private; contain a
`conversation; and are not directed to Alexa. And where the Complaint alleges that particular types
`of recordings were sensitive or private to Plaintiffs Caron Watkins, Diane McNealy, James
`Robinson, Rosa Comacho, Selena Johnson, and Ronald Johnson, only they or their counsel can
`identify which recordings, date, time, and content they refer to. See, e.g., Complaint ¶ 72 (alleging
`on behalf of Plaintiff Watkins that the Alexa-enabled device “recorded and stored multiple
`confidential communications [with her legal clients] without Ms. Watkins’ consent”).
`These are essential elements to Plaintiffs’ claims, on which Plaintiffs have the burden of
`proof. Obviously, it is only recordings of a Plaintiff’s voice that could conceivably provide any
`basis for a claim by that Plaintiff. Further, only recordings where the Plaintiff can claim a
`reasonable expectation of privacy or confidentiality are actionable under state wiretapping laws.
`See, e.g., Cal. Penal Code §§ 631-632, 637.2(a); State v. Clark, 129 Wn.2d 211, 224, 916 P.2d 384
`(1996) (the “intent or reasonable expectations of the participants as manifested by the facts and
`circumstances of each case controls as to whether a conversation is private”) (citations and
`quotations omitted). In addition, under Washington law (as to which Plaintiffs seek to certify a
`national class), Plaintiffs must show that Amazon recorded private or confidential conversations,
`as opposed to mere words, phrases, or snippets of sound. See, e.g., Complaint ¶¶ 144, 171, 255-
`257; see also RCW § 9.73.030(1)(b) (prohibiting recording of “[p]rivate conversation”); State v.
`John Smith, 189 Wn.2d 655, 664, 405 P.3d 997 (2017) (“brief oral exchanges” between two
`persons did not constitute a “conversation.”); State v. David Smith, 85 Wn.2d 840, 844-846, 540
`P.2d 424 (1975) (back-and-forth “words []exchanged,” [g]unfire, running, shouting, and []
`screams” did not constitute a “private conversation”). Indeed, if Plaintiffs genuinely believe that
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`recordings of indiscernible sounds or non-substantive utterances (such as “yes,” “no,” or “cancel”)
`are actionable as recordings of private or confidential conversations, then they must sign verified
`interrogatory responses identifying them as such. Cf. Shumpert v. Healthpoint Ctrs. of King Cty.,
`No. C18-1680 TSZ, 2020 U.S. Dist. LEXIS 48839, at *6 (W.D. Wash. Mar. 20, 2020) (unverified
`interrogatory responses “are inadmissible evidence”). And as the Court noted, “communications
`directed to Alexa (i.e., those that are preceded by a wake word) do not violate the Federal Wiretap
`Act because Amazon is a party to those communications.” Dkt. 91 (Order Granting in Part Motion
`to Dismiss), at *23 (emphasis added).
`Moreover, the content of a recording, once identified as a given Plaintiff’s voice, can also
`support Amazon’s defenses as to that Plaintiff. See Amazon’s Answer (Dkt. 92). For example, a
`Plaintiff can tell Alexa to stop recording, can instruct Alexa to “delete what I just said,” or
`otherwise show familiarity with, knowledge of, and/or consent to Alexa’s challenged functions.
`See, e.g., id. at 39; see also State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002) (consent
`to recording may be reasonably inferred based on a user’s familiarity with the technology at issue).
`Over the course of the parties’ discussions, it became clear Plaintiffs do not dispute that
`ROGs 5-8/9 seek relevant information (nor can they). Rather, Plaintiffs refuse to respond because
`(i) it allegedly would be “unduly burdensome” and (ii) the recordings and transcripts “are in
`Amazon’s possession, custody, or control.” Chan Decl. Ex. H at 4.
`As to burden, the fact is that Plaintiffs (and/or their counsel) must listen to the voice
`recordings in order to prove their case. How else will they testify and prove that it was their voice
`that was recorded, in a conversation, that was private or confidential, or that involved, for instance,
`their work as an attorney? See id. Ex. F at ROG 8; Complaint ¶ 72. Indeed, Plaintiffs have already
`listened to their recordings to identify certain ones they highlight in the complaint. See, e.g.,
`Complaint ¶ 73 (alleging a “April 18, 2021, at 9:35 p.m.” recording of “a personal marital
`disagreement between Ms. Watkins and her husband”). Plaintiffs do not dispute that they must
`ultimately divulge these facts. The purpose of discovery is to elicit such facts in advance.
`Plaintiffs are not entitled to ambush Amazon at trial by identifying then, for the first time, which
`recordings they rely upon. Moreover, Amazon needs to know now, in order to oppose class
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`certification by showing the Court the unique issues that each Plaintiff’s recordings present. Since
`it would be senseless to ask Plaintiffs to listen to every recording in the relevant household’s
`account during their depositions, interrogatory responses are the least burdensome approach.
`To simplify the task of responding to ROGs 5-8/9, Amazon proposed that, “instead of
`written responses to these interrogatories, Plaintiffs can annotate the relevant transcripts to denote
`information responsive to each of [these interrogatories].” Chan Decl. Ex. K at 12. Plaintiffs did
`not accept this compromise. Plaintiffs instead offered only to make a “decision about the offer of
`compromise” “within 21 days” of Amazon’s production of all audio recordings and transcripts for
`other Plaintiffs. Id. Ex. L at 5. Even after Amazon produced complete audio files and transcripts
`for five Plaintiffs, they have still refused. Id. Ex. N at 1. There is no reason for Plaintiffs to keep
`delaying and obstructing critical discovery.2
`Moreover, the audio recordings and transcripts of interactions with each device have
`always been available to Plaintiffs, even before Amazon produces them. Plaintiffs or their counsel
`can download Alexa recordings and transcripts through the “Request My Data” portal at Amazon
`for the accounts to which the Alexa-enabled devices are registered. Id. ¶ 19. Alternatively, an
`Account Holder (or a person with access) can simply review or delete transcripts and recordings
`or print transcripts from their Alexa App or through the computer, at any time. Id. Plaintiffs
`already know, or at least have the ability to know, the number and content of recordings at issue.
`In sum, Plaintiffs cannot simply sit on their hands and defer their obligations when there are
`multiple ways for them to access, review, and annotate transcripts.
`As a practical matter, identifying which recordings Plaintiffs claim are at issue in this
`lawsuit is not unduly burdensome. Plaintiffs are represented by sophisticated and well-resourced
`counsel, spread across seven different firms, six interim class counsel, and with over 21 attorneys.
`
`2 Amazon has produced the audio files and transcripts for Plaintiffs Jodi Brust, John Dannelly, Lisa
`Hovasse, Sandra Mirabile, and Susan Lenehan. Chan Decl. ¶ 20. Their counsel represented that they are
`the Account Holders for the Amazon accounts they used, and no other Plaintiff claims to have used these
`accounts. Id. ¶ 20. Amazon is ready to produce the audio and transcript files for the other Plaintiffs. Id.
`Since March 2022, Amazon has reasonably requested that counsel first give assurance of consent from the
`Account Holders before Amazon would release account information to any non-Account Holder Plaintiff.
`Id. Otherwise, non-Account Holders would obtain access to the very information in others’ accounts that
`Plaintiffs contend in this litigation is private and sensitive. In July 2022, after never previously raising any
`challenge to Amazon’s request, Plaintiffs’ counsel first objected to providing assurance of consent, and to
`date still has not provided the requested consent. Id.
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`DEFENDANTS’ MOTION TO COMPEL
`CASE NO. 2:21-CV-00750-RSL
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`FENWICK & WEST LLP
`1191 SECOND AVENUE, 10TH FLOOR
`SEATTLE, WASHINGTON 98101
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`Case 2:21-cv-00750-RSL Document 106 Filed 08/18/22 Page 12 of 17
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`See, e.g., Stipulated Motion to Appoint Interim Co-Lead and Class Counsel (Dkt. No. 32). To
`listen to these recordings and annotate the corresponding transcripts is a minimal task within the
`overall scope of this case, especially for most of the identified accounts. Each recording lasts just
`a few seconds; review can cover thousands of recordings in just a single workday. There are
`recordings for only 14 households (because many Plaintiffs reside in the same household). Chan
`Decl. ¶ 9. Ten of the households have fewer than ten hours of voice recordings each. Id. Instead
`of the more than six hours (with multiple attorneys present from Plaintiffs) spent meeting and
`conferring over Plaintiffs’ deficient discovery responses, Plaintiffs or their counsel could have
`already listened to the voice recordings associated with six households (or nine Plaintiffs), with
`time to spare. Id. For instance, Plaintiff John Dannelly (whose recordings and transcripts Amazon
`has already produced) has 171 individual recordings, totaling only 8 minutes. Id.
`Plaintiffs’ argument that the information is in Amazon’s possession ignores the real issue.
`While the recordings and transcripts are available to both Amazon and Plaintiffs, the issue here is
`which recordings Plaintiffs claim are their voices and satisfy the other elements of their claims.
`Plaintiffs and their counsel are uniquely positioned to identify their voices and their claims and
`have an obligation to do so. There is no substitute; Amazon cannot do it. It is that simple. The
`Court should order Plaintiffs to provide, no later than September 16, 2022, the information
`requested in ROGs 5-8/9 via annotated Alexa transcripts, signed and verified by Plaintiffs in
`accordance with Rule 33.
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`B.
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`The Court’s Order Should Instruct Each Plaintiff to Provide Verified
`Amended Responses No Later Than Three Weeks Before Their Deposition.
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`Plaintiffs initially objected to and refused to respond to most ROGs, and many Plaintiffs
`offered only incomplete or partial responses to other ROGs. See Chan Decl. ¶ 7; see generally id.
`Exs. E-F. Plaintiffs’ counsel next tried to supplement Plaintiffs’ deficient responses to ROGs 1-4,
`10/11, 12/13, 14/15, and 16/17 via letters and agreed to “revise” Plaintiffs’ responses at some
`unknown date. Id. Ex. O at 1-6; see, e.g., id. Ex. L at 2-6. Still no Plaintiff has ever provided any
`verified amended responses—despite repeated requests from Amazon from June through August.
`See, e.g., id. Exs. G, K, N at 3.
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`DEFENDANTS’ MOTION TO COMPEL
`CASE NO. 2:21-CV-00750-RSL
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`FENWICK & WEST LLP
`1191 SECOND AVENUE, 10TH FLOOR
`SEATTLE, WASHINGTON 98101
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`Case 2:21-cv-00750-RSL Document 106 Filed 08/18/22 Page 13 of 17
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`During the August 12 call, Plaintiffs’ counsel finally offered to provide verified amended
`responses from each Plaintiff no later than three weeks before their deposition. Chan Decl. ¶ 7. It
`is critical that the Court hold Plaintiffs to this promise, as only Plaintiffs’ statements, verified under
`oath, are admissible evidence for purposes of summary judgment, class certification, and trial. See
`Fed. R. Civ. P. 33(b)(3), (b)(5); Shumpert, 2020 U.S. Dist. LEXIS 48839, at *6 (plaintiff “cannot
`rely on her attorney’s declaration to verify her discovery responses”); cf. United States ex rel.
`Dahlstrom v. Sauk-Suiattle Indian Tribe, No. C16-0052JLR, 2019 U.S. Dist. LEXIS 147714, at
`*37 (W.D. Wash. Aug. 29, 2019). Accordingly, Amazon respectfully asks that the Court direct
`Plaintiffs to provide verified, amended responses no later than three weeks before their depositions.
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`II.
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`PLAINTIFFS SHOULD BE ORDERED TO COMPLETE THEIR DOCUMENT
`PRODUCTION.
`A.
`Plaintiffs Should Produce Responsive Documents Regarding Alexa Settings.
`RFP 15 (Documents, communications, and things sufficient to show any Settings3 that
`have been set on each Alexa-enabled Device that You used to access the Alexa Voice
`Service.)
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`Plaintiffs at first refused to produce any documents responsive to RFP 15. Chan Decl.
`Ex. D at RFP 15. Plaintiffs now agree to produce “documents and communications sufficient to
`show previous settings of Alexa-enabled devices in place in the past.” Id. Ex. I at 2. But they still
`refuse to produce documents reflecting Plaintiffs’ current Alexa settings—such as images or
`screenshots that are visible on the Alexa App—apparently because “it would require Plaintiffs to
`create documents that do not exist.” Id. Ex. J at 2 (emphasis in original); see also id. Ex. L at 2.
`Plaintiffs’ objection is nonsense. RFP 15 doe