Case 2:22-cv-01599-KKE Document 203 Filed 04/10/25 Page 1 of 9
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`Plaintiff(s),
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`v.
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`STEVEN FLOYD, et al.,
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`AMAZON.COM INC., et al.,
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`Defendant(s).
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`CASE NO. C22-1599-KKE
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`ORDER GRANTING IN PART AND
`DENYING IN PART DEFENDANTS’
`MOTION FOR DISCOVERY SANCTIONS
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`Defendants Apple Inc. and Amazon.com Inc. have fruitlessly attempted to obtain discovery
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`from Plaintiff Steven Floyd since fall 2023. Dkt. No. 152 at 5.1 They obtained a court order
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`compelling him to comply with discovery requests in summer 2024, and Floyd has not complied
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`with that order. Id. Defendants now request discovery sanctions against Floyd, asking the Court
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`to order him to show cause why he should not be held in contempt, in an attempt to coerce his
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`obedience with court orders. Id.
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`Although the Court agrees with Defendants that Floyd has repeatedly failed to respond to
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`discovery requests, even after ordered to do so by this Court, the discovery sanctions requested by
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`Defendants are not appropriate and the Court will therefore deny Defendants’ motion as to the
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`relief requested by Defendants. But because the Court is now aware that Floyd informed his
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`counsel that he wanted to cease participating in this action to avoid discovery obligations months
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`1 This order refers to the parties’ briefing by CM/ECF page numbers.
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`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR DISCOVERY
`SANCTIONS - 1
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`Case 2:22-cv-01599-KKE Document 203 Filed 04/10/25 Page 2 of 9
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`before the Court ordered Floyd to comply with Defendants’ discovery requests, and Floyd’s
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`counsel failed to candidly and/or accurately describe their client’s intentions to Defendants or the
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`Court, it is just to grant Defendants’ motion for sanctions as to Floyd’s counsel rather than Floyd.
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`The Court endeavors to craft a resolution to the discovery impasse that will honor Floyd’s
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`intentions and address the concerns that remain outstanding with respect to discovery from Floyd.
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`I.
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`BACKGROUND & ANALYSIS
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`Floyd filed this antitrust putative class action in November 2022, and much of his amended
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`complaint withstood Defendants’ motion to dismiss in June 2023. Dkt. Nos. 1, 61. Defendants
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`served Floyd with requests for production in September 2023, Floyd lodged objections in October
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`2023, and Floyd did not thereafter produce any documents. See Dkt. No. 90 at 31–75.
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`On February 8, 2024, Apple served Floyd with interrogatories. Dkt. No. 90 at 10–18. On
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`February 13, Floyd’s counsel advised Defendants that Floyd had “become difficult to reach” but
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`he “has not withdrawn as a class representative[.]” Dkt. No. 105 at 6. Floyd’s counsel indicated
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`that they would be filing a motion to amend the complaint to add additional class representatives.
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`Id. Counsel assured Defendants that “[i]f for any reason Mr. Floyd needs to withdraw, we will
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`promptly advise Defendants and take appropriate steps.” Id.
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`Defendants responded to emphasize that they would be opposing the motion to amend, and
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`to inquire as to Floyd’s availability for a deposition. Dkt. No. 105 at 5. Floyd’s counsel responded
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`that they could not agree to set a deposition until they heard from Floyd. Id. In this response,
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`Floyd’s counsel reiterated:
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`As for Mr. Floyd, he has not informed us of any intention to withdraw as a class
`representative. But as we explained, we have been unable to connect with him
`recently and are working diligently to regain contact to determine how Mr. Floyd
`wishes to proceed. We last communicated with Mr. Floyd on January 16, 2024 (and,
`again, it was not a withdrawal). We provide this information for purposes of
`transparency, but defendants are not entitled to further probe our communications
`with clients.
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`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR DISCOVERY
`SANCTIONS - 2
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`Case 2:22-cv-01599-KKE Document 203 Filed 04/10/25 Page 3 of 9
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`Id.
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`On February 29, 2024, Floyd filed a motion for leave to amend the complaint to add new
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`named plaintiffs, based on counsel’s representation that although Floyd had not expressed an intent
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`to withdraw as a named Plaintiff, he had, since January 16, “become difficult to reach” and could
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`be experiencing “some type of personal emergency.” Dkt. No. 80 at 8. Counsel further posited
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`potential “legitimate reasons for his recent non-responsiveness (e.g., health issues or other
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`incapacitating events).” Id. at 5.
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`Based on the Court’s recent in camera review of Floyd’s communications with his counsel,
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`the Court finds that counsel misrepresented to Defendants and the Court their January 16
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`communications with Floyd. On this date, Floyd informed his counsel that he no longer wanted
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`to participate in this litigation because he did not wish to participate in discovery, and reiterated
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`that intention even after his counsel attempted to persuade him that the discovery process could be
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`less onerous than he was assuming.
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`Consistent with Floyd’s stated disinterest in continuing with the case, his counsel began
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`searching for additional plaintiffs on January 24, and ultimately found two class members willing
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`to serve as class representatives. Dkt. No. 80 at 8. In May 2024, the Court granted Floyd’s motion
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`for leave to amend, acknowledging the authority permitting amendment where a class
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`representative ceases communicating or seeks to withdraw. See Dkt. No. 98. The Court’s order
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`assumed the veracity of counsel’s representations that Floyd would be continuing in the litigation
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`and that, for example, his adequacy as a named plaintiff would be adjudicated at a future point.
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`See id. at 4–5. As counsel represented that Floyd had not withdrawn and intended to stay part of
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`the class, the Court found that the motion to amend did not constitute a back-door attempt to begin
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`the action anew. Id.
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`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR DISCOVERY
`SANCTIONS - 3
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`Case 2:22-cv-01599-KKE Document 203 Filed 04/10/25 Page 4 of 9
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`Before and after the Court granted Floyd’s motion to amend, Defendants continued their
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`efforts to depose Floyd and seek other forms of discovery from him. See Dkt. No. 90, Dkt. No.
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`104, Dkt. No. 105 at 9. Those efforts proved unsuccessful because Floyd was not communicating
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`with his attorneys, and after the Court granted Floyd’s motion to amend, Defendants moved to
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`compel him to respond to outstanding discovery requests. Dkt. No. 104. In response to the motion
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`to compel, Floyd’s attorneys filed a cross-motion to withdraw him as a class representative, but
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`reiterated that he was not dismissing his claims with prejudice and that he would remain part of
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`the proposed class. See Dkt. No. 114 at 17.
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`The Court granted Defendants’ motion to compel because Floyd retained his status as a
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`class representative even after the complaint was amended to add the two additional named
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`Plaintiffs, and because Defendants would be prejudiced without the discovery they sought from
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`Floyd. Dkt. No. 132. The Court’s order compelling Floyd to respond to discovery requests was
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`written under the assumption that Floyd desired to remain an absent class member, because Floyd’s
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`counsel represented as much and Defendants assumed that position as well. See Dkt. No. 114 at
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`17, Dkt. No. 125 at 13, Dkt. No. 132 at 3. In its order granting the motion to compel, the Court
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`indicated that Floyd’s cross-motion to withdraw as a class representative would not be adjudicated
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`until after he complied with the order compelling discovery. Dkt. No. 132 at 6–8. That order was
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`entered on August 16, 2024, and required that Floyd respond to the outstanding discovery requests
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`by August 30, 2024, and to sit for deposition by September 30, 2024. Id. at 8.
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`On August 21, 2024, Floyd re-engaged with his counsel for the first time since January 16,
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`but his renewed interest in this litigation was short-lived. Although the emails produced in camera
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`reflect a seemingly productive phone call between Floyd and his counsel on August 21, by August
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`28, the relationship had apparently deteriorated to the point that Floyd indicated that continued
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`communication of any kind would be unwelcome.
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`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR DISCOVERY
`SANCTIONS - 4
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`Case 2:22-cv-01599-KKE Document 203 Filed 04/10/25 Page 5 of 9
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`Notwithstanding this breakdown, which again, was unknown to the Court or Defendants,
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`on August 29, the Court granted the parties’ stipulated motion to extend the August 30 deadline to
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`September 13, based on Floyd’s counsel’s representation that Floyd needed additional time to
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`complete his responses. Dkt. Nos. 134, 135. After the extension was granted, Floyd’s counsel
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`continued to attempt to obtain his cooperation with discovery, but Floyd never again responded to
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`counsel’s messages.
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`On September 13—the new deadline for Floyd’s discovery responses—Plaintiffs’ counsel
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`filed a motion to withdraw, saying that their relationship with Floyd fundamentally broke down
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`since their last communication with him on August 28. Dkt. No. 140 at 4–5. Apple opposed the
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`motion to withdraw, on the grounds that withdrawal should be conditioned upon an extension of
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`Floyd’s discovery deadlines, and an in camera review of Floyd’s communications with his counsel
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`to determine the degree to which any of counsel’s statements/filings during that time had been
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`authorized by Floyd himself. Dkt. No. 143. Defendants also filed their own motion for discovery
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`sanctions against Floyd, which Floyd’s counsel did not oppose. Dkt. Nos. 152, 156.
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`Defendants also moved to compel production of Floyd’s counsel’s 2024 communications
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`with Floyd on the grounds that Floyd had waived the attorney-client privilege associated with those
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`communications by putting them at issue in the litigation. Dkt. No. 172. The Court denied that
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`motion, but nonetheless ordered Plaintiffs’ counsel to produce certain communications for in
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`camera review for purposes of resolving the motion to withdraw representation and the motion for
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`discovery sanctions. Dkt. Nos. 196, 199.
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`After reviewing that correspondence in camera, the Court finds that it would not be just to
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`impose discovery sanctions against Floyd. See Fed. R. Civ. P. 37(b)(2) (authorizing the issuance
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`of “just orders” when a party “fails to obey an order to provide or permit discovery”). The Court
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`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR DISCOVERY
`SANCTIONS - 5
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`Case 2:22-cv-01599-KKE Document 203 Filed 04/10/25 Page 6 of 9
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`has “great latitude” in fashioning the appropriate Rule 37 sanction. Lew v. Kona Hosp., 754 F.3d
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`1420, 1426 (9th Cir. 1985).
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`The question now before the Court is what is “just” under these circumstances. As a
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`threshold matter, the Court finds that most of the blame for this protracted discovery dispute lies
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`with Floyd’s counsel rather than Floyd himself. The Court is now aware that Floyd informed his
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`counsel in January 2024 that he did not want to continue participating in this litigation, specifically
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`because he did not wish to provide the information necessary to respond to discovery requests.
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`Despite numerous attempts by counsel to persuade Floyd to change his mind about his
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`participation, for the next seven months, Floyd never gave his counsel any reason to believe he
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`was reconsidering his decision. Notwithstanding his silence from January to August 2024, Floyd’s
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`lawyers continued to send him case updates and requests for authorization for various steps in the
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`litigation. Whether they did so because they genuinely believed he might re-engage and that it
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`was their duty to keep him informed, or because it benefited their strategy to leave open the
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`possibility of his re-engagement, is unclear.
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`For whatever reason, the impression created by Floyd’s counsel in correspondence with
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`defense counsel and in court filings was that Floyd had suddenly fallen out of contact in January
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`2024, for reasons his counsel did not know and possibly unrelated to the litigation, not that he had
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`affirmatively disavowed his prior commitment to the case because he did not want to participate
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`in discovery. See Dkt. No. 80 at 8 (characterizing Floyd as “difficult to reach” and possibly
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`“experienc[ing] some type of personal emergency”). In the months that followed Floyd’s January
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`16 directive, while accurately admitting they had not been in touch with Floyd, his counsel
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`repeatedly told Defendants and the Court that Floyd had not stated an intention to withdraw from
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`the case and should not be presumed to have abandoned the litigation, but that he had merely
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`become non-responsive. See, e.g., Dkt. No. 81-1 at 2, Dkt. No. 101 at 30, Dkt. No. 114 at 8–9,
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`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR DISCOVERY
`SANCTIONS - 6
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`Case 2:22-cv-01599-KKE Document 203 Filed 04/10/25 Page 7 of 9
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`Dkt. No. 127 at 4–5, Dkt. No. 131 at 55. The Court’s rulings were likewise premised upon the
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`assumption that Floyd’s reasons for becoming non-responsive were unspecified, and that there was
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`the possibility of Floyd’s return.
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`And Floyd’s counsel were not entirely wrong: Floyd did in fact return to the case, albeit
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`very briefly, in late August. But even then, with the benefit of hindsight (and in camera review),
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`the Court finds counsel’s descriptions of this episode are lacking in candor. Floyd’s August 28,
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`2024 email to his counsel was pointedly hostile, and clearly indicated that he would not willingly
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`participate in the case after all. Yet Floyd’s counsel told the Court the next day that Floyd simply
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`needed more time to comply with discovery and secured an extension of the discovery deadline
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`on that basis. See Dkt. No. 134. Again, whether Floyd’s counsel actually believed that Floyd
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`would come around again and comply is unknown. Perhaps they did. But in any event, regardless
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`of their subjective beliefs, counsel’s characterizations of Floyd’s situation over the past fourteen
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`months have not reflected his reality.
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`In sum, Floyd’s counsel’s conduct in handling this discovery dispute has needlessly
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`prolonged this litigation and required considerable judicial resources, as well as time and effort on
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`the part of Defendants, and the dispute remains unresolved even now. Under these circumstances,
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`the Court finds that, instead of imposing discovery sanctions on Floyd himself, Defendants are
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`entitled to request an award of attorney’s fees and expenses, to be paid by Floyd’s counsel, incurred
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`in bringing the motion to compel and the motion for discovery sanctions. See Fed. R. Civ. P.
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`37(b)(2)(C); Gamon v. Shriners Hosps. for Children, No. 3:23-cv-00216-IM, 2025 WL 415062,
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`at *3 (D. Or. Feb. 6, 2025) (ordering plaintiff’s counsel to pay a Rule 37 fee award because it was
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`counsel’s conduct, rather than plaintiff’s, that necessitated the motion to compel).
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`Although the Court finds that Defendants are not entitled to discovery sanctions against
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`Floyd, they may nonetheless be entitled to obtain discovery from Floyd even if he is no longer a
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`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR DISCOVERY
`SANCTIONS - 7
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`Case 2:22-cv-01599-KKE Document 203 Filed 04/10/25 Page 8 of 9
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`named plaintiff or a class member, although Apple’s prior motion to compel was not brought in
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`that context. See Intermarine, LLC v. Spliethoff Bevrachtingskantoor, B.V., 123 F. Supp. 3d 1215,
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`1218–19 (N.D. Cal. 2015) (“Nonparties subject to discovery requests deserve extra protection from
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`courts.” (cleaned up)); Dysthe v. Basic Res., LLC, 273 F.R.D. 625, 629 (C.D. Cal. 2011) (finding
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`that even if former named plaintiff is no longer a class member, “his testimony as a percipient
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`witness would nevertheless remain relevant and the heightened requirements pertaining to the
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`discovery of putative or absent class members would not apply”). The Court will order Floyd to
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`show cause why his claims should not be dismissed with prejudice, as that result is consistent with
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`Floyd’s correspondence with his counsel. If his claims are eventually dismissed, either Defendant
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`may file a motion if they intend to compel discovery from Floyd as a nonparty.
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`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR DISCOVERY
`SANCTIONS - 8
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`Case 2:22-cv-01599-KKE Document 203 Filed 04/10/25 Page 9 of 9
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`II.
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`CONCLUSION
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`Thus, the Court GRANTS IN PART and DENIES IN PART Defendants’ motion (Dkt. No.
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`152) and ORDERS as follows:
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`(1) Defendants may file a motion for attorney’s fees and expenses necessitated by the filing
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`of the motion to compel and the motion for discovery sanctions, no later than May 2,
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`2025. The motion should be noted in accordance with Local Rule 7 and Floyd’s
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`counsel may file an opposition brief.
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`(2) Floyd is ORDERED TO SHOW CAUSE why his claims in this action should not be
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`dismissed with prejudice, no later than May 2, 2025.
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`(3) The clerk is directed to mail a copy of this order to Floyd at the address previously
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`provided by his counsel. See Dkt. No. 140 at 4 n.2.
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`Dated this 10th day of April, 2025.
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`A
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`Kymberly K. Evanson
`United States District Judge
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`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR DISCOVERY
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