`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`Case 2:22-cv-01599-KKE Document 196 Filed 03/07/25 Page 1 of 8
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`Plaintiff(s),
`
`v.
`
`STEVEN FLOYD, et al.,
`
`
`
`
`AMAZON.COM INC., et al.,
`
`
`
`Defendant(s).
`
`CASE NO. C22-1599-KKE
`
`ORDER ON DEFENDANTS’ MOTION TO
`COMPEL
`
`Defendants Amazon.com Inc. and Apple Inc. filed a motion to compel production of 11
`
`communications between Plaintiff Steven Floyd and his attorneys, arguing that by affirmatively
`
`putting the content of those communications “at issue” in this case, Floyd implicitly waived any
`
`privilege that protected those communications. Dkt. No. 172 at 10–11.1 The Court has considered
`
`the parties’ briefing and heard oral argument on the motion. See Dkt. No. 187. Because
`
`Defendants have failed to show that the communications are “at issue” with respect to any claim
`
`or defense asserted in this litigation, the Court finds that the actions of Floyd and/or his counsel
`
`do not constitute an implied waiver.
`
`
`
`Thus, the Court will deny Defendants’ motion to compel but, as explained herein, may
`
`nonetheless order Plaintiffs to submit some of Floyd’s communications for in camera review for
`
`
`1 This order refers to the parties’ briefing using CM/ECF page numbers.
`
`ORDER ON DEFENDANTS’ MOTION TO COMPEL - 1
`
`

`

`Case 2:22-cv-01599-KKE Document 196 Filed 03/07/25 Page 2 of 8
`
`
`
`purposes of resolving Plaintiffs’ counsel’s motion to withdraw and Defendants’ motion for
`
`discovery sanctions, if those motions are reactivated.
`
`I.
`
`BACKGROUND
`
`On February 29, 2024, Floyd filed a motion for leave to amend the complaint to add new
`
`plaintiffs, based on counsel’s representation that although Floyd had not expressed an intent to
`
`withdraw as a named Plaintiff, he had, since January 16, become “difficult to reach” and could be
`
`experiencing “some type of personal emergency.” Dkt. No. 80 at 8. Plaintiffs’ counsel began a
`
`search for additional plaintiffs on January 24, and ultimately found two class members willing to
`
`serve as class representatives. Id.
`
`The Court granted Floyd’s motion for leave, acknowledging the authority permitting
`
`amendment where a class representative ceases communicating or seeks to withdraw. See Dkt.
`
`No. 98. The Court’s order assumed that, based on counsel’s representations, Floyd would be
`
`continuing in the litigation and that, for example, his adequacy as a named plaintiff would be
`
`adjudicated at a future point. See id. at 4–5. Because counsel represented that Floyd had not
`
`withdrawn and intended to stay part of the class, the Court found that the motion to amend did not
`
`constitute a back-door attempt to begin the action anew. Id.
`
`After the Court granted Plaintiffs’ motion to amend, Defendants immediately renewed their
`
`efforts to depose Floyd and seek other forms of discovery from him. See Dkt. No. 104. Those
`
`efforts proved unsuccessful because Floyd was not communicating with his attorneys, and
`
`Defendants moved to compel responses to outstanding discovery requests. Id. In response to the
`
`motion to compel, Floyd’s attorneys filed a cross-motion to withdraw him as a class representative,
`
`but indicated that he was not dismissing his claims with prejudice and that he wished to remain
`
`part of the proposed class. See Dkt. No. 114 at 17.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`ORDER ON DEFENDANTS’ MOTION TO COMPEL - 2
`
`

`

`Case 2:22-cv-01599-KKE Document 196 Filed 03/07/25 Page 3 of 8
`
`
`
`In light of the fact that Floyd retained his status as a class representative even after the
`
`complaint was amended, and based on a finding that Defendants would be prejudiced without the
`
`discovery they seek from Floyd, the Court granted Defendants’ motion to compel discovery and
`
`indicated that Floyd’s cross-motion to withdraw as a class representative would not be adjudicated
`
`until after he complied with the order compelling discovery. Dkt. No. 132. That order was entered
`
`on August 16, 2024, and required that Floyd respond to discovery requests by August 30, 2024,
`
`and to sit for deposition by September 30, 2024. Id. at 8.
`
`On August 29, Plaintiffs filed a stipulated motion asking for an extension of the August 30
`
`deadline to September 13, indicating that counsel had been able to reestablish communication with
`
`Floyd and were hopeful that he could comply with his discovery obligations with a modest
`
`extension. Dkt. No. 134. Counsel represented that the parties did not anticipate an extension of
`
`the deposition deadline. Id. ¶ 6. Defendants agreed to that extension and the Court granted the
`
`stipulated motion the same day. Dkt. Nos. 134, 135.
`
`On September 13—the new deadline for Floyd’s discovery responses—Plaintiffs’ counsel
`
`filed a motion to withdraw, saying that their relationship with Floyd fundamentally broke down
`
`since their last communication with him on August 28. Dkt. No. 140 at 4–5. Apple2 opposed the
`
`motion to withdraw, on the grounds that withdrawal should be conditioned upon an extension of
`
`Floyd’s discovery deadlines, and Plaintiffs’ counsel’s production of all of their 2024
`
`communications with Floyd to the Court for in camera review to determine the degree to which
`
`any of counsel’s statements/filings during that time had been authorized by Floyd himself. Dkt.
`
`No. 143. Defendants also filed their own motion for discovery sanctions against Floyd, which
`
`Floyd’s counsel did not oppose. Dkt. Nos. 152, 156.
`
`
`2 Amazon took no position on Floyd’s counsel’s motion to withdraw representation and did not join Apple’s
`opposition. Dkt. No. 145.
`
`ORDER ON DEFENDANTS’ MOTION TO COMPEL - 3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`

`

`Case 2:22-cv-01599-KKE Document 196 Filed 03/07/25 Page 4 of 8
`
`
`
`The Court denied the motion to withdraw and the motion for sanctions without prejudice,
`
`pending Plaintiffs’ counsel’s production of all non-privileged communications with Floyd in 2024,
`
`as well as a privilege log for the withheld communications, to flesh out the record “in order to
`
`resolve questions of delay, prejudice, and harm to the administration of justice.” Dkt. No. 168.
`
`The Court indicated that those motions could be reactivated after any future motion related to the
`
`production of Floyd’s communications is resolved. Id. at 3.
`
`Plaintiffs’ counsel complied with this order, and Defendants filed a motion to compel 11
`
`of the communications listed on the Plaintiffs’ privilege log. Dkt. No. 172. For the following
`
`reasons, the Court finds that because Defendants have not shown that the attorney-client privilege
`
`has been waived with respect to those communications, their motion to compel their production
`
`will be denied.
`
`II.
`
`ANALYSIS
`
`The Ninth Circuit has described the attorney-client privilege in a multi-part explanation:
`
`(1) When legal advice of any kind is sought (2) from a professional legal adviser in
`his or her capacity as such, (3) the communications relating to that purpose,
`(4) made in confidence (5) by the client, (6) are, at the client’s instance,
`permanently protected (7) from disclosure by the client or by the legal adviser
`(8) unless the protection be waived.
`
`United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002). “The burden is on the party asserting
`
`the privilege to establish all the elements of the privilege.” Id. at 999–1000.
`
`
`
`The attorney-client privilege is implicitly waived “when the privilege holder raises a claim
`
`or defense that puts privileged communications at issue.” Apple Inc. v. Samsung Elecs. Co., Ltd.,
`
`306 F.R.D. 234, 241 (N.D. Cal. 2015). Privileged communications are “at issue” when:
`
`(1) assertion of the privilege was the result of some affirmative act, such as filing
`suit, by the asserting party; (2) through this affirmative act, the asserting party put
`the protected information at issue by making it relevant to the case; and
`(3) application of the privilege would have denied the opposing party access to
`information vital to his defense.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`ORDER ON DEFENDANTS’ MOTION TO COMPEL - 4
`
`

`

`Case 2:22-cv-01599-KKE Document 196 Filed 03/07/25 Page 5 of 8
`
`
`
`
`Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975). “Privileged communications do not
`
`become discoverable simply because they are related to issues raised in the litigation, [but] where
`
`a party raises a claim which in fairness requires disclosure of the protected communication, the
`
`privilege may be implicitly waived.” Apple, 306 F.R.D. at 241 (cleaned up).
`
`
`
`Defendants agree with Plaintiffs that Floyd’s communications with his counsel are
`
`protected by the attorney-client privilege (Dkt. No. 192 at 23, 33), but contend that this privilege
`
`was waived by counsel’s affirmative acts in filing the motion for leave to amend the complaint.
`
`The Court disagrees. While Floyd’s privileged communications are relevant to issues raised in
`
`litigation, the Court does not find that any of Floyd’s affirmative acts went so far as to raise a claim
`
`that “in fairness requires disclosure” of his protected communications to opposing counsel.
`
`Floyd’s communications (and lack thereof) were referenced generally in the motion for leave to
`
`amend the complaint, to explain why the motion was filed, but those communications and that
`
`motion were not directly connected to any claim in the amended complaint or any defense thereto.
`
`
`
`Without a connection to a claim or defense asserted in this case, the Court does not find
`
`that Floyd has taken an affirmative act that placed his communications “at issue” for purposes of
`
`the Hearn test. See, e.g., United States v. Amlani, 169 F.3d 1189, 1195 (9th Cir. 1999) (where
`
`defendant appealed his criminal conviction based on a Sixth Amendment claim asserting that his
`
`attorney disparaged him, which led him to discharge that attorney and retain inexperienced counsel
`
`who provided inadequate representation: “[Defendant] cannot assert that certain factors caused
`
`him to discharge his attorney and then invoke the attorney-client privilege to prevent the
`
`government from examining the situation further.”); 3D Sys., Inc. v. Wynne, No.: 21-cv-1141-
`
`AGS-DDL, 2024 WL 940318, at *6 (S.D. Cal. Feb. 21, 2024) (finding that because the statute of
`
`limitations on plaintiff’s trade secret misappropriation claims “began running when it knew or had
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`ORDER ON DEFENDANTS’ MOTION TO COMPEL - 5
`
`

`

`Case 2:22-cv-01599-KKE Document 196 Filed 03/07/25 Page 6 of 8
`
`
`
`reason to know of the injury that is the basis of the action and the cause of that injury,” the
`
`privileged information pertaining to plaintiff’s internal investigation would “go to the heart of
`
`whether it knew or had reason to know” of defendants’ alleged misappropriation and it was
`
`therefore “at issue” (cleaned up)); Sorensen v. Black & Decker Corp., No. 06cv1572-BTM (CAB),
`
`2007 WL 1976652, at *2 (S.D. Cal. Apr. 9, 2007) (“The privilege is waived only when a party
`
`chooses to utilize the [privileged] information to advance a claim or defense.”); Aloe Vera of Am.,
`
`Inc. v. United States, No. CV 99-1794-PHX-JAT, 2003 WL 22429082, at *3 (D. Ariz. Sep. 23,
`
`2003) (finding that privileged documents were “at issue” for purposes of proving defendant’s
`
`statute of limitations defense).
`
`
`
`Here, Floyd’s privileged communications formed the factual backdrop for the motion for
`
`leave to amend (as well as the subsequent motion to withdraw as a class representative and
`
`counsel’s motion to withdraw representation), but the content of the communications did not
`
`establish any element of a claim or defense raised in the litigation. Defendants suggest that if
`
`Floyd had instructed his counsel to dismiss his claims, this instruction would have (or should have)
`
`led to the dismissal of the action entirely, but this position is not supported by authority in and out
`
`of this circuit. See, e.g., Vue v. Pentagon Fed. Credit Union, No. 1:21-cv-01063-JLT-SAB, 2024
`
`WL 4436814, at *3–7 (E.D. Cal. Oct. 4, 2024) (citing cases as support for granting a motion for
`
`leave to amend a complaint to substitute class representatives, over defendants’ objection that
`
`plaintiff did not authorize her attorneys to file the motion for leave to amend); see also Phillips v.
`
`Ford Motor Co., 435 F.3d 785, 787 (7th Cir. 2006) (“Strictly speaking, if no motion to certify has
`
`been filed … the case is not yet a class action and so a dismissal of the named plaintiffs’ claims
`
`should end the case. If the case is later restarted with a new plaintiff, it is a new commencement,
`
`a new suit. But the courts, both federal and Illinois, are not so strict. Unless jurisdiction never
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`ORDER ON DEFENDANTS’ MOTION TO COMPEL - 6
`
`

`

`Case 2:22-cv-01599-KKE Document 196 Filed 03/07/25 Page 7 of 8
`
`
`
`attached, or the attempt to substitute comes long after the claims of the named plaintiffs were
`
`dismissed, substitution for the named plaintiffs is allowed.” (cleaned up)).
`
`
`
`That the privileged communications may reveal ethical lapses by Floyd’s counsel is an
`
`insufficient basis on which to compel their production (see, e.g., Dkt. No. 192 at 22–29); this Court
`
`is not tasked with, as a general matter, policing attorney-client relationships nor monitoring
`
`counsel’s compliance with the Rules of Professional Responsibility. Because the motion presently
`
`before the Court seeks production of Floyd’s communications to Defendants, and the Court finds
`
`that the protection afforded those communications has not been waived here, the Court will deny
`
`the motion.
`
`
`
`But even if the Court will not grant Defendants’ motion to compel production of Floyd’s
`
`communications, the Court nonetheless finds it would be necessary to review Floyd’s
`
`communications in camera for purposes of resolving two motions that have been terminated while
`
`the Court considered whether Floyd’s communications should be produced to Defendants:
`
`Plaintiffs’ counsel’s motion to withdraw representation and Defendants’ motion for discovery
`
`sanctions against Floyd. See Dkt. Nos. 140, 152. Given that Floyd himself has ceased participating
`
`in this litigation, the Court must turn to other sources for the information necessary to resolve these
`
`motions. The record currently before the Court is inadequate to determine whether Plaintiffs’
`
`counsel’s withdrawal of representation is appropriate with or without the conditions requested by
`
`Apple. See Dkt. No. 143. “The decision to grant or deny counsel’s motion to withdraw is
`
`ultimately committed to the discretion of the trial court[,]” and the Court requires more information
`
`about Floyd’s relationship with his counsel in order to exercise that discretion. Fujifilm Sonosite,
`
`Inc. v. Imaging Specialists Grp., LLC, No. C13-983 RSM, 2014 WL 1400992, at *1 (W.D. Wash.
`
`Apr. 10, 2014).
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`ORDER ON DEFENDANTS’ MOTION TO COMPEL - 7
`
`

`

`Case 2:22-cv-01599-KKE Document 196 Filed 03/07/25 Page 8 of 8
`
`
`
`
`
`Likewise, the Court cannot resolve the motion for discovery sanctions against Floyd
`
`without understanding what he may have communicated to his counsel regarding his intentions
`
`with respect to discovery and/or pursuing his claims in this litigation. Federal Rule of Civil
`
`Procedure 37(b)(2)(A) empowers the Court to enter “just orders” to address a party’s failure to
`
`obey a discovery order, and the Court cannot determine what is just in this scenario without more
`
`information that may be available upon review of Floyd’s communications.
`
`
`
`III. CONCLUSION
`
`For these reasons, the Court DENIES Defendants’ motion to compel. Dkt. No. 172.
`
`The parties are directed to consider, in light of this ruling, whether to reactivate Plaintiffs’
`
`counsel’s motion to withdraw as Floyd’s counsel (Dkt. No. 140) and/or Defendants’ motion for
`
`discovery sanctions (Dkt. No. 152). Any party may file a notice of intent to reactivate no later
`
`than March 14, 2025. If either motion is reactivated, the Court will provide further instruction on
`
`the in camera production required for the Court to adjudicate the motion(s).
`
`Dated this 7th day of March, 2025.
`
`A
`
`Kymberly K. Evanson
`United States District Judge
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`ORDER ON DEFENDANTS’ MOTION TO COMPEL - 8
`
`