De Coster et al v. Amazon.com Inc

Filing 91

ORDER re Parties' 89 Stipulated MOTION Regarding Expert Discovery. Pursuant to stipulation, IT IS SO ORDERED. Signed by Judge Ricardo S. Martinez. (SB)

Case 2:21-cv-00693-RSM Document 91 Filed 05/18/23 Page 1 of 10

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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 EXPERT DISCOVERY
Case No. 2:21-cv-00693-RSM
010888-14/2251015 V1

No. 2:21-cv-00693-RSM
STIPULATED MOTION AND ORDER
REGARDING EXPERT DISCOVERY
NOTE ON MOTION CALENDAR:
May 18, 2023

Case 2:21-cv-00693-RSM Document 91 Filed 05/18/23 Page 2 of 10

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The Parties in the above-captioned action, by and through their respective undersigned

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counsel, have agreed and stipulated to certain protocols regarding expert discovery in the above

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captioned action (“Expert Stipulation”), subject to approval by the Court.

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I.

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GENERAL PROVISIONS
1.

This Expert Stipulation applies to the Parties to the above captioned action and

provides the protocols for conducting expert discovery.

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2.

Except as provided otherwise herein, expert discovery shall be governed by the

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Federal Rules of Civil Procedure. To the extent that this Expert Stipulation imposes limitations

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on discovery which otherwise would be available under the Federal Rules of Civil Procedure, the

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Parties have agreed to any such limitations. Neither the terms of the Stipulation and Order nor

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the Parties’ agreement to them shall be considered an admission by any person that any of the

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information restricted from discovery by this Stipulation and Order would otherwise be

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discoverable or admissible.

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3.

This Expert Stipulation shall apply to all prior and future work by experts in this

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Nothing in this Expert Stipulation shall limit or waive a Party’s right to object to

action.

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the admission into evidence of any opposing Party’s expert report or opinion(s) or other

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materials, or to the qualification of any person to serve as an expert witness.

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5.

The Parties agree that they are not required to produce or exchange any log of any

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material, otherwise discoverable, that is precluded from discovery or disclosure pursuant to this

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Expert Stipulation.

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II.

NON-TESTIFYING EXPERTS
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Except as provided for in the Protective Order, dated February 27, 2023, the

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Parties agree that there shall be no discovery or disclosure with respect to non-testifying experts;

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provided, however, that if a Party retains as a consulting expert a person who is otherwise a fact

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witness, only that person’s communications within the scope of a bona fide consulting expert

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agreement shall be exempt from discovery or disclosure under this paragraph.

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7.

The Parties agree that notes, drafts, written communications, or other records of

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preliminary or intermediate work prepared or created by, or at the direction of, non-testifying

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experts shall not be the subject of any form of discovery (including by deposition).

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8.

The Parties agree that budgets, invoices, bills, receipts, or time records concerning

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non-testifying experts or their staff, assistants, colleagues, or associates, or their companies or

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organizations, shall not be the subject of any form of discovery (including by deposition).

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9.

To the extent a non-testifying expert is later designated and disclosed as a

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testifying expert, that person shall be subject to discovery or disclosure pursuant to Section III of

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this Expert Stipulation governing testifying experts, including with respect to any documents that

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would otherwise be subject to protection under this Section II arising from that person’s work as

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a non-testifying expert.

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III.

TESTIFYING EXPERTS

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A.

Expert Materials to Be Disclosed

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10.

Within three (3) business days after service of a report under Rule 26(a)(2)(B), the

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Party submitting the report shall produce:
a.

all documents relied upon by the expert in forming their opinions for such

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report, except to the extent such documents have already been produced in the above captioned

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litigation or are publicly available, and can be readily identified from the report;

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b.

a copy of all data and other information relied upon by the expert in

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forming their opinions for such report, including, but not limited to, underlying data,

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spreadsheets (including formulas therein), computerized regression analysis and/or other

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underlying reports, programs, computer codes and schedules sufficient to reconstruct the work,

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calculations, and/or analyses upon which the testifying expert is relying for their opinions;

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c.

exhibits, information, charts, tables or data processed or modeled by a

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computer at the direction of a testifying expert and relied upon by the testifying expert in the

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course of forming the testifying expert’s opinions;

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d.

and all spreadsheets in the expert report or exhibits thereto in native format; and

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all raw and final data sets exactly as relied upon by the testifying expert,

e.

copies of industry reports and articles, as well as copies of any excerpt(s)

of books, as relied upon by the testifying expert.
11.

Information required by Paragraph 10 shall be produced electronically (via email,

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disc, or FTP site), and (where feasible) in native format or, if native format is not available, a

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format from which all data contained within is readily extractable. To the extent that such

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disclosures include charts, tables, exhibits, information or data processed or modeled by

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computer, the submitting Party shall produce machine-readable copies of the charts, tables,

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exhibits, information or data (including all linked or used data and data files, input and output

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files, formulas contained within spreadsheet cells and similar electronic information necessary to

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understand the charts, tables, exhibits, information or data) sufficient to allow the replication of

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all analysis contained in the report, along with a list of all computer programs used by the expert

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for any numerical or other analysis in the report; the Parties agree to meet and confer in good

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faith regarding access to and use of any program(s) that are not commercially available. In

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addition, to the extent such disclosures include information gleaned from websites and from

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third-party sources not readily available, copies of the content of those websites or third-party

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sources shall also be provided. For avoidance of doubt, the disclosure requirement in this

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paragraph does not apply to any demonstratives that a Party may create for future court hearings

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or trial. The use and disclosure of expert demonstratives at trial will be governed by a pre-trial

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stipulation or order.

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12.

Documents that have been previously produced in the above captioned action

need not be produced if they are identified by Bates number.
13.

Transcripts of depositions taken and previously produced in the above captioned

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action need not be produced if the producing Party identifies in writing the deponent names and

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dates for transcripts.

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B.

Expert Materials Not Requiring Disclosure and Limits on Discovery

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14.

The below-listed categories of documents, communications, and other recording

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media need not be disclosed by any Party and an expert may not be examined at deposition,

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hearing or trial on the contents of the below-listed categories of documents, communications,

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and other recording media:

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a.

any notes or other writings taken or prepared by or for an expert witness in

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connection with this matter (aside from the final written expert report(s) and notes generated or

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referred to by the expert while testifying at deposition, hearing, or trial), including (i) written

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correspondence or memoranda to or from, and notes of conversations between and among, the

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expert witness and (a) the expert’s assistants and/or clerical or support staff (regardless of title),

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(b) other expert witnesses or non-testifying expert consultants, including their assistants and/or

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clerical or support staff (regardless of title); (c) attorneys for the Party or Parties for whom the

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expert is offering opinions and their clerical or support staff; and (iv) the Party or Parties for

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whom the testifying expert is offering opinions;

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b.

copies of materials produced by any Party in this litigation bearing the

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notes, markings, or comments of the expert, the expert’s assistants and/or clerical or support

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staff, other expert witnesses or non-testifying expert consultants (including their staffs), or

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attorneys for the Party or Parties and their clerical or support staff;

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c.

any draft reports, draft studies, draft work papers, draft declarations, or

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other draft materials or preliminary work product prepared by, for, or at the direction of, an

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expert witness or his or her staff or agents, regardless of the form in which the draft is recorded;

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and

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d.

the content or fact of any communications, written or otherwise

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exchanged, recounted, or memorialized in connection with the above captioned action among

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and between a testifying expert and any other person, including: (i) the testifying expert’s

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assistants and/or clerical or support staff (regardless of title), (ii) other expert witnesses or non-

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testifying expert consultants (including their assistants and/or clerical or support staff),

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(iii) attorneys for the Party or Parties and their clerical or support staff, regardless of the form of

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such communications, and (iv) the Party or Parties for whom the testifying expert is offering

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opinions; and

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e.

any budgets, invoices, bills, receipts, work plans, or time records

concerning a testifying expert’s work in the above captioned action.
15.

Except as stated in Paragraph 17, the foregoing exclusions from discovery set

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forth in Paragraph 14 do not apply to any facts, information, communications, or documents that

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the expert relies upon as a basis for forming their opinions in the above captioned action.

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16.

This Expert Stipulation does not preclude reasonable questions at a deposition,

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hearing, or trial related to a testifying expert’s compensation, or the number of hours the

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testifying expert expended in preparing their opinion(s).

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17.

Nothing herein shall be construed to prevent questions relating to the substance of

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the testifying expert’s opinion(s) (including alternative theories, methodologies, variables, or

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assumptions that the testifying expert may not have relied upon in forming his or her opinions).

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Thus, notwithstanding anything to the contrary herein, a testifying expert may be presented at a

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deposition, hearing, or trial with documents, testimony, or other materials not disclosed in this

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Section III and questioned about whether the testifying expert relied or did not rely on such

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documents, testimony, or other materials in formulating their opinion(s), and whether such

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documents, testimony, or other materials would cause the testifying expert to alter their

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opinion(s) in any respect. A testifying expert’s communications with their employees and staff

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and non-testifying expert consultants (including their assistants and/or clerical or support staff),

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as well as any communications with counsel for the producing Party as to the relevance or

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significance of facts or data and as to the consideration of alternatives, however, are completely

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exempt from disclosure.

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18.

Nothing in this Stipulation shall be construed to preclude or limit the

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discoverability of any documents or other information relied upon by an expert witness in

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preparing his or her report(s) or that is otherwise discoverable under any order of the Court.

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IT IS SO STIPULATED.

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DATED: May 18, 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]

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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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Jessica Beringer (pro hac vice)
Jason A. Zweig (pro hac vice)
150 N. Riverside Plaza, Suite 4100
Chicago, Illinois 60606
[phone]
E-mail: [e-mail]
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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STIPULATED MOTION AND ORDER
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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]
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

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Pursuant to stipulation, IT IS SO ORDERED.

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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 18, 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.

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/s/ Steve W. Berman
Steve W. Berman

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