De Coster et al v. Amazon.com Inc

Filing 90

ORDER re Parties' 87 Stipulated MOTION Regarding Discovery. Pursuant to stipulation, it is so ordered. Signed by Judge Ricardo S. Martinez. (SB)

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The Honorable Ricardo S. Martinez

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ELIZABETH DE COSTER et al., on behalf of
themselves and all others similarly situated,

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Plaintiffs,
v.
AMAZON.COM, INC., a Delaware
corporation,
Defendant.

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STIPULATED MOTION AND ORDER
REGARDING DISCOVERY
Case No. 2:21-cv-00693-RSM

Case No. 2:21-cv-00693-RSM
STIPULATED MOTION AND ORDER
REGARDING DISCOVERY
NOTE ON MOTION CALENDAR:
May 16, 2023

Case 2:21-cv-00693-RSM Document 90 Filed 05/18/23 Page 2 of 10

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The Parties, by and through their counsel, stipulate and agree as follows:

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1.

Plaintiffs in the Frame-Wilson v. Amazon, No. 2:20-cv-00424-RAJ (W.D. Wash.),

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and De Coster v. Amazon, No. 2:21-cv-00693-RSP (W.D. Wash.) cases (collectively “W.D.

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Wash. Plaintiffs”) allege that Amazon violates federal antitrust laws through its agreements with

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third-party sellers that restrain prices of goods online. Later filed actions in other jurisdictions

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assert similar claims under state antitrust laws: People of California v. Amazon, Case No. CGC-

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22-601826 (Cal. Super. Court, San Francisco) (“California Action); and Mbadiwe v. Amazon,

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No. 1:22-cv-09542 (S.D.N.Y.) (collectively “Plaintiffs from other Jurisdictions”). The Plaintiffs

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in Frame-Wilson served 92 Requests for Production on Amazon in September 2022. For over six

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months the W.D. Wash. Plaintiffs and Amazon (collectively “Parties”) have met and conferred

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and exchanged extensive correspondence discussing Amazon’s responses and objections to these

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Requests. As a part of their discussions, Amazon sought to minimize the burden of responding to

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duplicative requests for production from the W.D. Wash. Plaintiffs and the Plaintiffs from Other

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Jurisdictions and to avoid the potential of duplicative requests for depositions of Amazon

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witnesses. After multiple meetings and letter exchanges, the Parties reached an agreement as set

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forth below.

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2.

The Parties agreed to general cross-use as between Frame-Wilson and De

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Coster—discovery served or produced in one case is available for use in the other, with all

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parties reserving all objections as to admissibility or relevance of the discovery material in the

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litigation.

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3.

The Parties agree to coordinate depositions of Amazon witnesses with the

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plaintiffs in Mbadiwe v. Amazon, and People of California v. Amazon with respect to claims

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arising from Amazon’s agreements with its third-party sellers so long as (1) it is feasible to do

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so, (2) there is acceptance by the plaintiff groups, and (3) it does not impede the W.D. Wash.

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Plaintiffs’ ability to take depositions in an orderly manner within their own case schedules.

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Further, any agreement to coordinate with the Mbadiwe Plaintiffs is without prejudice to the

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W.D. Wash. Plaintiffs’ right to seek a protective order to prevent the Mbadiwe Plaintiffs from

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attending depositions that do not concern their claims, with Amazon reserving the right to

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oppose any motion for a protective order.

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4.

Discussions concerning coordination between the California Action and Brown v.

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Amazon, No. 22-cv-00965-JHC (W.D. Wash.), are separate discussions, outside of this

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stipulation, and will continue during the pendency of Amazon’s motion to dismiss the Brown

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Action.

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5.

The Parties note that the claims filed by the Attorney General of the District of

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Columbia overlap with the claims subject to this Stipulation. District of Columbia v.

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Amazon.com, Inc., Case No. 2021 CA 001775 B. The court granted Amazon’s motion to dismiss

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the District’s claims, and the District filed an appeal. In the event that the District’s claims are

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reinstated while fact discovery is ongoing in this case, the parties agree to discuss the

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coordination of discovery in that case with the cases subject to this coordination stipulation.

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6.

Amazon’s letter dated March 2, 2023 (and as further clarified by subsequent

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correspondence, including Amazon’s response to the W.D. Wash. Plaintiffs’ May 10, 2023

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email) explains that Amazon is reproducing in the California Action documents it produced in

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response to certain requests the California Attorney General made to Amazon in its investigation

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(“California Litigation Production”). The March 2 letter identifies the requests from the

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California Attorney General, which generated the California Litigation Production. The Parties

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agree that Amazon will also produce the California Litigation Production to the W.D. Wash.

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Plaintiffs. In addition, the W.D. Wash. Plaintiffs will receive any additional productions Amazon

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makes to the California Attorney General in the California Action. To date, this production

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includes, as stated in Amazon’s and the California Attorney General’s Joint CMC Statement,

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more than 700,000 documents from the California Attorney General’s investigation and an

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additional 15,000 documents not previously produced to the California Attorney General from

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the FTC’s investigation of Amazon. The Parties agree that Amazon’s production of these

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documents will be made without delay, with all materials previously produced to the California

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Attorney General produced to the W.D. Wash. Plaintiffs by May 19, 2023.

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7.

Amazon’s March 2 letter (and subsequent clarifying correspondence, including its

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response to the W.D. Wash. Plaintiffs’ May 10, 2023 email) clarifies for each of the Requests

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from the California Attorney General that generated the California Litigation Production in that

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case, whether Amazon conducted go-get searches, whether it applied search terms, and if the

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latter, which search terms and which custodians’ records were searched for each Request.

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Amazon’s letters dated March 24, and 31 and the W.D. Wash. Plaintiffs’ letters dated March 14

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and April 4, and emails and attachments dated May 3 and 4, provide additional details

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concerning Amazon’s production, including whether (and how) Amazon had reached agreement

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to narrow any of the requests at issue.

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8.

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As set forth in that correspondence, Amazon agrees:
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to provide existing correspondence sent to the California Attorney General

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that describe, index, or accompany the productions to the California

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Attorney General, which will be made available to the W.D. Wash.

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Plaintiffs. To the extent such correspondence addresses materials to the

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California Attorney General that Amazon is not reproducing in the

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California Action, Amazon may redact any discussion of those materials;

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B.

to conduct a reasonable “refresh” of certain productions or categories of

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documents, in light of the date cut-off of the existing productions and to

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negotiate the scope of a “refresh” in good faith;

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C.

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to supplement the search terms used concerning documents relating to the
former Parity Provision; and

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D.

to conduct a reasonable search for and produce Seller University materials

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concerning the Parity Provision, the Marketplace Fair Pricing Policy,

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Featured Offer, Account Health, and MARS for the U.S. from 2016 to the

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date of collection.

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9.

Amazon confirms that the California Litigation Production includes profit and

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loss data from 2012 through October 31, 2022, and Amazon agrees to a refresh of that

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production, e.g., closer to class certification. Amazon also confirms that the California Litigation
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Production includes the results of its go-get search and custodial searches based on identified

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search terms in response to Request No. 12 in the March 2, 2023 letter, concerning Amazon’s

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Price Parity Provision. Amazon also confirms that the California Litigation Production includes

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documents relating to Amazon’s market share in online retail, and online retail marketplaces and

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any analysis of the entry of online retail marketplaces or barriers to entry. Amazon agrees to

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provide good-faith assistance to identify where these materials can be found in the California

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Litigation Production. Amazon will meet and confer promptly about supplemental productions if

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the W.D. Wash. Plaintiffs identify additional, non-duplicative materials on these topics that are

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pertinent to class certification issues.

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10.

In addition to the California Litigation Production, Amazon agrees to produce

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additional categories of documents described in Amazon’s March 31, 2023 letter and May 1,

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2023 email to Plaintiffs (and as further clarified by subsequent correspondence).

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The Parties agree to timely produce documents they reasonably anticipate relying

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upon for class certification or summary judgment and to timely supplement such productions if

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additional documents are identified.

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12.

The Parties agree that the W.D. Wash. Plaintiffs may pursue additional non-

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duplicative document discovery needed for purposes of class certification and need not wait to

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do so only after reviewing all the materials included in the anticipated production. Amazon

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confirms that it will engage with such requests promptly and in good faith, including by directing

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the W.D. Wash. Plaintiffs to specific documents it has produced, as appropriate.

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13.

This stipulation does not impact the Parties’ ability to issue written discovery,

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such as interrogatories or requests for admission. The W.D. Wash. Plaintiffs have expressly

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raised conducting discovery concerning whether third-party sellers were uniformly bound by the

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Price Parity Provision and Fair Pricing Policy, including through interrogatories, requests for

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admission, or the coordinated depositions referenced above. Should such avenues of discovery

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be insufficient for the W.D. Wash. Plaintiffs’ purposes, they have reserved the right to seek

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additional documents on this topic.

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14.

The Parties likewise agree that their negotiations over Amazon’s production of

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data and Plaintiffs’ requests for posts on Seller Forum, beginning in January 2012, and Seller

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University modules that relate to third-party seller pricing are occurring concurrently and are not

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superseded by this stipulation.

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15.

The stipulation does not foreclose Plaintiffs from seeking discovery after the

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Court rules on Plaintiffs’ class certification motion, however Amazon reserves the right to object

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to production of discovery it perceives as duplicative of discovery that was made available to the

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W.D. Wash. Plaintiffs through this coordination stipulation or discovery that they sought in

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connection with class certification.

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THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between the Parties,
through their undersigned counsel of record, and the Parties ask the Court to order, that:

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The Parties agree to the production of documents, coordination of depositions and

other terms as set forth in this stipulation.

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17.

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IT IS SO STIPULATED.

The agreement is binding as of the date of submission.

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DATED: May 16, 2023

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HAGENS BERMAN SOBOL SHAPIRO LLP
By: /s/ Steve W. Berman
Steve W. Berman (WSBA No. 12536)
By: /s/ Barbara A. Mahoney
Barbara A. Mahoney (WSBA No. 31845)
1301 Second Avenue, Suite 2000
Seattle, WA 98101
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
E-mail: [e-mail]

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Anne F. Johnson (pro hac vice)
68 3rd Street, Suite 249
Brooklyn, NY 11231
Telephone: [phone]
E-mail: [e-mail]

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KELLER POSTMAN LLC

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Zina G. Bash (pro hac vice)
111 Congress Avenue, Suite 500
Austin, TX, 78701
Telephone: [phone]
E-mail: [e-mail]

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Warren D. Postman (pro hac vice)
Albert Y. Pak (pro hac vice)
1100 Vermont Avenue, N.W., 12th Floor
Washington DC, 20005
Telephone: [phone]
E-mail: [e-mail]
E-mail: [e-mail]

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Jason A. Zweig (pro hac vice)
150 N. Riverside Plaza, Suite 4100
Chicago, IL 60606
Telephone: [phone]
E-mail: [e-mail]

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Interim Co-Lead Counsel for Plaintiffs and the
proposed Class

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KELLER ROHRBACK L.L.P.

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By: /s/ Derek W. Loeser
Derek W. Loeser (WSBA No. 24274)
1201 Third Avenue, Suite 3200
Seattle, WA 98101-3052
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

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QUINN EMANUEL URQUHART &
SULLIVAN, LLP

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By: /s/ Alicia Cobb
Alicia Cobb, WSBA # 48685
1109 First Avenue, Suite 210
Seattle, WA 98101
Telephone: [phone]
Email: [e-mail]

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Steig D. Olson (pro hac vice)
David D. LeRay (pro hac vice)
Nic V. Siebert (pro hac vice)
Maxwell P. Deabler-Meadows (pro hac vice)
51 Madison Avenue, 22nd Floor
New York, NY 10010
Telephone: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

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Adam B. Wolfson (pro hac vice)
865 South Figueroa Street, 10th Floor
Los Angeles, CA 90017-2543
Telephone: [phone]
Email: [e-mail]

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Interim Executive Committee for Plaintiffs and the
proposed Class

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DAVIS WRIGHT TREMAINE LLP

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By: /s/ John A. Goldmark
John A. Goldmark, WSBA # 40980
MaryAnn Almeida, WSBA #49086
920 Fifth Avenue, Suite 3300
Seattle, WA 98104-1610
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
E-mail: [e-mail]

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PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP

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Karen L. Dunn (pro hac vice)
William A. Isaacson (pro hac vice)
Amy J. Mauser (pro hac vice)
Martha L. Goodman (pro hac vice)
Kyle Smith (pro hac vice)
2001 K Street, NW
Washington, D.C. 20006-1047
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
E-mail: [e-mail]
E-mail: [e-mail]
E-mail: [e-mail]
E-mail: [e-mail]

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Attorneys for Defendant Amazon.com, Inc.

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ORDER
PURSUANT TO STIPULATION, IT IS SO ORDERED.
DATED this 18th day of May, 2023.

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A

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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE

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I hereby certify that on May 16, 2023, a true and correct copy of the foregoing was filed
electronically by CM/ECF, which caused notice to be sent to all counsel of record.
/s/ Steve W. Berman
Steve W. Berman

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