Case 2:21-cv-00750-RSL Document 79 Filed 03/10/22 Page 1 of 4
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`KAELI GARNER, et al.,
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`Plaintiffs,
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`v.
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`AMAZON.COM, INC., et al.,
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`Defendants.
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`Cause No. C21-0750RSL
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`ORDER DENYING
`DEFENDANTS’ MOTION
`FOR A STAY AND
`PROTECTIVE ORDER
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`This matter comes before the Court on defendants’ “Motion to Stay All Discovery
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`Pending Decision on Amazon’s Motion to Dismiss and for Protective Order Against
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`Enforcement of 39 Non-Party Subpoenas.” Dkt. #73. Having reviewed the memoranda,
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`declarations, and exhibits submitted by the parties, as well as the underlying motion to dismiss,1
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`the Court finds as follows:
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`A. Stay of Discovery
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`The Federal Rules of Civil Procedure impose clear duties to disclose that are triggered by
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`certain, specified events. See Fed. R. Civ. P. 26(a)(1) and 26(d)(1). The rules do not provide an
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`automatic stay of discovery if a motion to dismiss is filed: such motions are often unsuccessful
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`1 This matter can be decided on the papers submitted. Defendants’ request for oral argument is
`DENIED.
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`ORDER DENYING DEFENDANTS’ MOTION
`FOR STAY AND PROTECTIVE ORDER - 1
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`Case 2:21-cv-00750-RSL Document 79 Filed 03/10/22 Page 2 of 4
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`and a stay could cause unnecessary and significant delays at the outset of the litigation. The
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`Court nevertheless has discretion to stay discovery if defendants show that they are entitled to a
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`protective order under Rule 26(c) “to protect a party or person from annoyance, embarrassment,
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`oppression, or undue burden or expense . . . .” See Lazar v. Kroncke, 862 F.3d 1186, 1203 (9th
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`Cir. 2017) (“District court[] orders controlling discovery are reviewed for an abuse of
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`discretion.”). Defendants argue that it would be an undue burden to have to respond to discovery
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`related to claims which may be dismissed under Rule 12(b)(6).
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`The pending motion to dismiss asserts that Washington law governs the claims of
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`registered users, all of whom agreed to Amazon’s Conditions of Use, that all claims brought by
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`registered users under other states’ laws must be dismissed, and that the registered users have
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`consented to the recordings at issue in the First Amended Complaint. With regards to non-
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`registrant users, defendants argue that they impliedly consented to the voice recordings under
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`recordings are inherent in the technology plaintiffs used. Defendants seek dismissal of plaintiffs’
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`Washington Consumer Protection Act claims for failure to plausibly allege an unfair or
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`deceptive practice or injury to business or property, dismissal of the Federal Wiretap Act claims
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`because defendants were the intended recipient of the communications, and dismissal of the
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`Federal Stored Communications Act claims for failure to plausibly allege that Alexa is an
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`electronic communication service, that the recordings are in electronic storage, or that they were
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`2 Defendants do not explain why Washington law applies to the claims of non-registrant users.
`ORDER DENYING DEFENDANTS’ MOTION
`FOR STAY AND PROTECTIVE ORDER - 2
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`Case 2:21-cv-00750-RSL Document 79 Filed 03/10/22 Page 3 of 4
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`divulged to a third party. A brief review of the moving papers suggest that they raise “a real
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`question whether” portions of plaintiffs’ claims will survive. Wood v. McEwen, 644 F.2d 797,
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`802 (9th Cir. 1981).
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`Such a showing is only half of the analysis, however. To determine whether the expense
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`and burden of discovery regarding claims that may ultimately be dismissed is “undue” and
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`therefore justifies a protective order, the Court must also consider whether plaintiff will be
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`prejudiced if a stay is ordered. Id. In this regard, plaintiff argues that the discovery it seeks will
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`bolster allegations in the First Amended Complaint that defendants challenge as conclusory,
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`such as the allegation that defendants disclosed Alexa recordings to third parties. In addition, the
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`parties have less than ten months to complete fact discovery. A delay of unknown length at the
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`start of discovery would likely prejudice plaintiffs’ ability to support their class certification
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`motion, which is due in January 2023. In light of the risk of prejudice to plaintiff, the apparent
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`merit of some of defendants’ arguments does not justify the requested stay of discovery.
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`B. Protective Order
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`Defendants also seek a protective order relieving the recipients of 39 third-party
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`subpoenas from having to respond until after the motion to dismiss is ruled upon. “The court
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`may, for good cause, issue an order to protect a party or person from annoyance, embarrassment,
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`oppression, or undue burden or expense” under Rule 26(c). Defendants assert that the subpoenas
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`seek information that could be obtained from defendants themselves and are, therefore, designed
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`to harass defendants’ business partners. They do not, however, discuss any particular discovery
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`request, and plaintiffs have shown that at least some of the information sought is within the sole
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`ORDER DENYING DEFENDANTS’ MOTION
`FOR STAY AND PROTECTIVE ORDER - 3
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`Case 2:21-cv-00750-RSL Document 79 Filed 03/10/22 Page 4 of 4
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`control of the third parties on whom the subpoenas were served. Nor do defendants provide any
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`facts suggesting that the discovery requests annoy, embarrass, oppress, or impose an undue
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`burden or expense on the third parties, other than to repeat that production may not be necessary
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`if defendants’ motion to dismiss is granted. As discussed above, this risk is not “undue” in the
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`circumstances presented here.
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`For all of the foregoing reasons, defendants’ request for a stay of discovery (Dkt. # 73) is
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`DENIED.
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`Dated this 10th day of March, 2022.
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`Robert S. Lasnik
`United States District Judge
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`ORDER DENYING DEFENDANTS’ MOTION
`FOR STAY AND PROTECTIVE ORDER - 4
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