Federal Trade Commission et al v. Amazon.com Inc

Filing 337

ORDER re Deposition Coordination Protocol. Signed by Judge John H. Chun. (SB)

1
2
3
4
5
6
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

7
8
9

FEDERAL TRADE COMMISSION, et al.,

10
11
12
13
14

Plaintiffs,
v.

Case No. 2:23-cv-01495-JHC
DEPOSITION COORDINATION
PROTOCOL AND ORDER

AMAZON.COM, INC., a corporation,
Defendant.

15
16

Plaintiffs Federal Trade Commission (“FTC”) and the states and territories of New York,

17

Connecticut, Pennsylvania, Delaware, Maine, Maryland, Massachusetts, Michigan, Minnesota,

18

Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Puerto Rico, Rhode

19

Island, Vermont, and Wisconsin, acting by and through their respective Attorneys General

20

(“Plaintiff States,” and together with the FTC, “Plaintiffs”) and Defendant Amazon.com, Inc.

21

(“Amazon”) have agreed and stipulated to certain issues regarding the coordination of deposition

22

discovery between the above-referenced action (“Action”) and certain other matters, and hereby

23

jointly submit this Stipulated Coordination Protocol and Proposed Order (“Coordination Order”)

24

for approval and entry by the Court.

25
26
DEPOSITON COORDINATION PROTOCOL &
ORDER - 1
CASE NO. 2:23-cv-01495-JHC

1
2
3

I.

DEFINITIONS
1.

The following definitions shall apply for the purposes of this Order:
a.

Amazon Witness: Any person who is (i) a current employee or officer of

4

Amazon, or (ii) a former employee or officer of Amazon who is represented by Counsel

5

for Amazon. Upon receipt of a deposition notice from Plaintiffs for a former employee or

6

officer of Amazon, Counsel for Amazon shall promptly, and within no more than fourteen

7

(14) calendar days, notify Plaintiffs in writing if the former employee or officer is

8

represented by Counsel for Amazon. If Counsel for Amazon does not provide notice that

9

it represents a former employee or officer within fourteen (14) calendar days, the

10

deposition shall be governed by the provisions of Section V covering Non-Party witnesses,

11

unless otherwise agreed to by the Parties.

12

b.

Coordinated Actions: The People of the State of California v. Amazon.com,

13

Inc., No. CGC-22-601826 (Cal. Super. Ct.); Frame-Wilson et al. v. Amazon.com, Inc., No.

14

2:20-cv-00424-JHC (W.D. Wash.); De Coster et al. v. Amazon.com, Inc., No. 2:21-cv-

15

00693-JHC (W.D. Wash.); Brown et al. v. Amazon.com, Inc., No. 2:22-cv-00965-JHC

16

(W.D. Wash.); District of Columbia v. Amazon.com, Inc., No. 2021-CA-001775-B (D.C.

17

Super. Ct.); Mbadiwe et al. v. Amazon.com, Inc., No. 1:22-cv-9542-VSB (S.D.N.Y.); and

18

any other civil action in or approaching active discovery involving substantially similar

19

claims that is identified and agreed upon in writing by the Parties.

20

c.

Coordinated Deposition: A deposition to be conducted pursuant to this

21

Coordination Order that will be noticed and taken by Plaintiffs and Coordinated Plaintiffs’

22

Attorneys for at least one of the Coordinated Actions.

23
24
25
26

d.

Coordinated Plaintiffs’ Attorneys: Counsel of record for plaintiffs in the

Coordinated Actions.
e.

Counsel for Amazon: Counsel of record for Amazon.com, Inc. in this

Action and the Coordinated Actions.
DEPOSITON COORDINATION PROTOCOL &
ORDER - 2
CASE NO. 2:23-cv-01495-JHC

1

f.

2

VSB (S.D.N.Y.).

3

g.

4

Mbadiwe Action.

5

h.

6

9

Mbadiwe Plaintiffs’ Attorneys: Counsel of record for plaintiffs in the

Non-Party: Any natural person, partnership, corporation, association, or

other legal entity not named as a Party in this Action.

7
8

Mbadiwe Action: Mbadiwe et al. v. Amazon.com, Inc., No. 1:22-cv-9542-

i.
II.

Party or Parties: Any entity named as a plaintiff or defendant in this Action.

GENERAL PROVISIONS
2.

This Coordination Order applies to the Parties in the Action, and provides protocols

10

applicable to conducting deposition discovery in this Action. Nothing in this Coordination Order

11

shall preclude or otherwise restrict Amazon from engaging in further or different coordination

12

efforts in the Coordinated Actions or in any other action, but no such efforts by Amazon shall

13

modify this Coordination Order, be binding on Plaintiffs, affect Plaintiffs’ ability to take discovery

14

in this Action, or otherwise have any effect on the present Action.

15
16
17

3.

This Coordination Order shall be effective only upon agreement of the Parties, or

by order of the Court.
4.

Any Party may seek to later modify this Coordination Order for good cause. Prior

18

to doing so, the Parties shall meet and confer in good faith regarding any proposed modifications.

19

This Coordination Order may be amended only by subsequent written agreement among the

20

Parties, or by order of the Court.

21

5.

Amazon represents that it is engaged in efforts to negotiate and have substantially

22

similar orders entered in each of the Coordinated Actions. To the extent that any dispute arises

23

related to terms on coordination contained in orders in the Coordinated Actions that differ from or

24

conflict with this Coordination Order, the Parties shall meet and confer to determine if proposed

25

modifications of this Coordination Order may be necessary to facilitate efficient coordination with

26

the Coordinated Actions.
DEPOSITON COORDINATION PROTOCOL &
ORDER - 3
CASE NO. 2:23-cv-01495-JHC

1

6.

Unless otherwise agreed to and ordered by this Coordination Order, discovery in

2

this Action shall be governed by the applicable provisions of the Federal Rules of Civil Procedure,

3

the Federal Rules of Evidence, the Court’s Case Scheduling Order (ECF 159), Case Management

4

Order (ECF 161), and Order Re Deposition Limits (ECF 166) (“Deposition Order”), any other

5

Court order in this Action, and any other applicable rules or orders that would apply to govern

6

discovery in the absence of this Coordination Order.

7

7.

All Parties reserve all rights to formally object (by motion or otherwise) to any

8

deposition or deposition examination on any grounds and seek appropriate relief from the Court

9

as warranted, including with respect to the taking of any deposition or to the timing or scope of

10

any deposition in this Action.

11

8.

Only depositions noticed by a Party in this Action shall be treated as having been

12

noticed and taken in this Action, absent an agreement between the Parties to the contrary. Any

13

testimony by an Amazon Witness or a Non-Party witness in a Coordinated Deposition shall be

14

considered deposition testimony given in this Action, whether the examination was conducted by

15

Plaintiffs, by Coordinated Plaintiffs’ Attorneys, or by Counsel for Amazon. The Parties reserve

16

all rights to object to the admissibility or use of such testimony pursuant to the applicable rules.

17

9.

For any Coordinated Deposition, the Parties agree that the Parties, the Coordinated

18

Plaintiffs’ Attorneys, and Counsel for Amazon in the Coordinated Actions may attend and

19

participate in such Coordinated Depositions to the fullest extent permitted under the applicable

20

rules, including this Coordination Order and any Order of the Court in this Action. With respect

21

to any materials or testimony designated Confidential or Highly Confidential – Attorneys’ Eyes

22

Only, the Parties’ obligations will be governed by the Protective Order in this Action. The

23

obligations of Amazon’s Counsel in the Coordinated Actions and the Coordinated Plaintiffs’

24

Attorneys will be governed by the respective Protective Orders in the Coordinated Actions. The

25

obligations of Amazon’s Counsel and the Mbadiwe Plaintiffs’ Attorneys will be governed by the

26

Protective Order in the Mbadiwe Action.
DEPOSITON COORDINATION PROTOCOL &
ORDER - 4
CASE NO. 2:23-cv-01495-JHC

1

10.

To facilitate coordinated depositions of witnesses between this Action and the

2

Coordinated Actions, Plaintiffs may disclose materials and information derived from such

3

materials designated by Amazon as Confidential or Highly Confidential – Attorneys’ Eyes Only

4

under the February 13, 2024 Protective Order (“Protective Order”) (ECF 160) to Coordinated

5

Plaintiffs’ Attorneys, provided that (i) such materials are reasonably necessary to facilitate such

6

coordinated depositions, including discussions about potential coordinated depositions of Amazon

7

Witnesses, potential coordinated depositions of Amazon pursuant to Rule 30(b)(6) and/or Cal.

8

Code Civ. Proc. § 2025.230, or potential coordinated depositions of Non-Party witnesses; and (ii)

9

such Coordinated Plaintiffs’ Attorneys have agreed in writing to treat those materials and

10

information as Protected Material under the respective Protective Orders in the Coordinated

11

Actions.

12

Amazon.com, Inc., No. CGC-22-601826 (Cal. Super. Ct. Jan. 27, 2023); Protective Order (ECF

13

90), Frame-Wilson et al. v. Amazon.com, Inc., No. 2:20-cv-00424-JHC (W.D. Wash. Feb. 27,

14

2023); Stipulated Protective Order, De Coster et al. v. Amazon.com, Inc., No. 2:21-cv-00693-JHC

15

(W.D. Wash. Mar. 15, 2023); Stipulated Protective Order (ECF 51), Brown et al. v. Amazon.com,

16

Inc., No. 2:22-cv-00965-JHC (W.D. Wash. Oct. 16, 2023); Protective Order Granted, District of

17

Columbia v. Amazon.com, Inc., No. 2021-CA-001775-B (D.C. Super. Ct., Oct. 25, 2024).

18

Coordinated Plaintiffs’ Attorneys may disclose materials and information derived from such

19

materials designated by Amazon as Confidential or Highly Confidential – Attorneys’ Eyes Only

20

under the Protective Orders in the Coordinated Actions to Plaintiffs. Plaintiffs will treat those

21

materials and information as Protected Material under the Protective Order in this Action.

22

11.

See Stipulation and Protective Order, The People of the State of California v.

Nothing in this Coordination Order permits any Party to take more than one

23

deposition of any witness without agreement of the Parties and witness or leave of Court.

24

III.

25
26

DEPOSITIONS OF AMAZON WITNESSES FIRST NOTICED IN THIS ACTION
12.

To the extent Plaintiffs seek the deposition of an Amazon Witness in the Action,

Plaintiffs shall issue a deposition notice to Counsel for Amazon, for a date not sooner than fortyDEPOSITON COORDINATION PROTOCOL &
ORDER - 5
CASE NO. 2:23-cv-01495-JHC

1

five (45) calendar days from the date the notice is served, and provide the deposition notice to the

2

Coordinated Plaintiffs’ Attorneys.

3

13.

Within seven (7) calendar days after receiving a deposition notice (or within

4

fourteen (14) calendar days for a former employee or officer of Amazon), Counsel for Amazon

5

shall use best efforts to confirm Plaintiffs’ proposed date or, to the extent the witness or counsel is

6

unavailable, provide one or more alternative dates for the deposition. If alternative dates are

7

provided, Counsel for Amazon shall use best efforts to provide at least one alternative date that is

8

within fourteen (14) calendar days of Plaintiffs’ initial proposed date, and will not propose any

9

date that would require more than three (3) Amazon Witnesses to be deposed on the same date.

10

The Parties shall thereafter meet and confer on a reasonable and appropriate date, time, and

11

location for the noticed deposition.

12

14.

Consistent with Federal Rule of Civil Procedure 30(d)(1) and the Court’s

13

Deposition Order, the Parties agree that Plaintiffs’ examination of an Amazon Witness in a

14

Coordinated Deposition shall be limited to no more than seven (7) hours on the record, with no

15

more than seven (7) hours on the record per day, unless otherwise agreed to by all Parties and the

16

Amazon Witness.

17

15.

For any Coordinated Deposition of an Amazon Witness, the Parties agree that the

18

examination by Plaintiffs and Coordinated Plaintiffs’ Attorneys shall be limited to no more than a

19

combined total of ten (10) hours on the record, with no more than seven (7) hours on the record

20

per day unless otherwise agreed to all Parties and the Amazon Witness.

21

16.

Notwithstanding the limit set forth in Paragraph 15, Plaintiffs and the Coordinated

22

Plaintiffs’ Attorneys may jointly designate up to sixteen (16) Amazon Witnesses, for whom the

23

examination by Plaintiffs and the Coordinated Plaintiffs’ Attorneys shall be limited to a combined

24

total of fourteen (14) hours on the record, with no more than seven (7) hours on the record per day

25

unless otherwise agreed to by the Amazon Witness. Plaintiffs and the Coordinated Plaintiffs’

26

Attorneys shall make such designations by written notice no later than thirty (30) calendar days
DEPOSITON COORDINATION PROTOCOL &
ORDER - 6
CASE NO. 2:23-cv-01495-JHC

1

prior to the date of such deposition. If Amazon objects to any such designation, it will provide

2

written notice of that objection to Plaintiffs and the Coordinated Plaintiffs’ Attorneys within five

3

(5) business days, and Amazon, Plaintiffs, and the Coordinated Plaintiffs’ Attorneys will meet and

4

confer regarding that objection. If a dispute remains, Amazon may seek relief from the Court in

5

this action for Coordinated Depositions first noticed in this action; however, absent agreement of

6

the Parties or Order of the Court, the fourteen (14) hour limit shall apply to such deposition.

7

17.

In the event Amazon seeks to coordinate testimony from one or more Amazon

8

Witnesses offered in response to a deposition notice to Amazon pursuant to Federal Rule of Civil

9

Procedure 30(b)(6) in this Action, Amazon shall identify the designated topics for which it

10

proposes offering coordinated testimony at the time Amazon serves its responses and objections

11

to such deposition notice. Amazon shall provide Plaintiffs with the relevant Rule 30(b)(6) or Cal.

12

Code Civ. Proc. § 2025.230 notice(s) and Amazon’s responses and objections thereto, whether or

13

not Amazon is proposing coordination. Plaintiffs, in their sole discretion, may also propose

14

coordination for some or all Rule 30(b)(6) topics. Following a proposal for coordination by either

15

side, the Parties agree to meet and confer in good faith concerning the coordination of such

16

deposition, including the scope of testimony and appropriate time limits for said deposition. If no

17

party proposes coordination, or if the Parties are not able to reach an agreement regarding

18

coordination, Plaintiffs may, in their sole discretion, elect to proceed with the deposition on the

19

topics as noticed or as otherwise negotiated by the Parties. If the Parties are not able to reach an

20

agreement regarding coordination after meeting and conferring in good faith, Amazon shall not

21

refuse to designate a witness (or witnesses) or schedule a deposition(s) based on any disputes

22

regarding coordination unless Amazon files a motion for a Protective Order. Nothing in this

23

Paragraph shall affect Amazon’s right to object to any deposition notice issued pursuant to Rule

24

30(b)(6) on any grounds.

25
26
DEPOSITON COORDINATION PROTOCOL &
ORDER - 7
CASE NO. 2:23-cv-01495-JHC

1

IV.

DEPOSITIONS OF AMAZON WITNESSES FIRST NOTICED IN

2

COORDINATED ACTIONS

3

18.

In the event Amazon receives a deposition notice or subpoena for an Amazon

4

Witness in any Coordinated Action, Counsel for Amazon shall promptly notify Plaintiffs and shall

5

provide Plaintiffs with a copy of the deposition notice within seven (7) calendar days.

6

19.

Upon receipt of a deposition notice from Amazon, and if Amazon’s production of

7

documents in response to Plaintiffs’ discovery requests issued on or before July 1, 2024 has been

8

substantially complete for at least thirty (30) calendar days, Plaintiffs shall have seven (7) calendar

9

days to notify Counsel for Amazon in writing whether Plaintiffs intend to notice such Amazon

10

Witness for deposition in the present Action such that the deposition will be a Coordinated

11

Deposition, and whether Plaintiffs are reasonably able to proceed with such deposition on the date

12

noticed in the Coordinated Action. If Amazon’s production of documents in response to Plaintiffs’

13

discovery requests issued on or before July 1, 2024 has not been substantially complete for at least

14

thirty (30) calendar days at the time Amazon provides notice, Plaintiff may indicate its intent to

15

participate in the deposition of the Amazon Witness, but shall not be required to give such notice

16

until forty (40) days after Amazon substantially completes its production of documents in response

17

to Plaintiffs’ discovery requests issued on or before July 1, 2024.

18

20.

To the extent Plaintiffs are not reasonably able to proceed with the deposition on

19

the date noticed in the Coordinated Action, or to the extent Plaintiffs require reasonable additional

20

time to prepare, Plaintiffs will use best efforts to coordinate with Amazon and Coordinated

21

Plaintiffs’ Attorneys to identify mutually agreeable dates for the Coordinated Deposition.

22
23
24

21.

If Plaintiffs elect to participate in a Coordinated Deposition first noticed in a

Coordinated Action, the provisions in Paragraphs 14 through 16 above shall apply.
22.

If Amazon does not provide notice to Plaintiffs regarding a deposition notice issued

25

in Coordinated Action as required in Paragraph 18, any later notice by Amazon shall have no effect

26

on Plaintiffs’ rights with respect to the deposition of that Amazon Witness in this Action.
DEPOSITON COORDINATION PROTOCOL &
ORDER - 8
CASE NO. 2:23-cv-01495-JHC

1

However, Plaintiffs, in their sole discretion, may elect to participate in a Coordinated Deposition

2

of an Amazon Witness first noticed in a Coordinated Action by issuing a deposition notice for the

3

Amazon Witness. In such instance, the provisions in Paragraphs 14 to 16 above shall apply.

4

23.

If Amazon provides notice to Plaintiffs regarding a deposition notice issued for an

5

Amazon Witness in a Coordinated Action as required in Paragraph 18, and Plaintiffs do not elect

6

to participate in a Coordinated Deposition for that Amazon Witness as required in Paragraph 19,

7

Plaintiffs may not seek a deposition of that same Amazon Witness in this Action without Amazon’s

8

consent or leave of the Court. Nothing in this Paragraph, or otherwise in the Coordination Order,

9

bars Plaintiffs from seeking agreement from Amazon or leave of Court to take additional testimony

10

from any Amazon Witness based on documents produced by Amazon after the date Amazon

11

represents it has substantially completed its document production.

12

24.

In the event Amazon receives a deposition notice to Amazon in its corporate

13

capacity in any Coordinated Action, Counsel for Amazon shall promptly notify Plaintiffs and shall

14

provide Plaintiffs with a copy of the deposition notice within seven (7) calendar days. Amazon

15

shall provide Plaintiffs with a copy of its responses and objections to any such deposition notice

16

contemporaneously with the service of Amazon’s responses and objections. In the event either

17

Party seeks to coordinate testimony as to one or more topics in a deposition notice to Amazon in

18

its corporate capacity issued in any Coordinated Action, the Party seeking coordinated testimony

19

shall identify the designated topics for which it proposes coordinated testimony either (i) at the

20

time Amazon serves its responses and objections to such deposition notice (for Amazon); or

21

(ii) within fourteen (14) calendar days of receiving Amazon’s responses and objections to such

22

deposition notice (for Plaintiffs). Thereafter, the Parties agree to meet and confer in good faith

23

concerning the coordination of such deposition, including the scope of testimony for any

24

coordinated proceeding and any appropriate time limits for said deposition. If the Parties are not

25

able to reach an agreement regarding coordination after meeting and conferring in good faith,

26

Amazon shall not refuse to designate a witness (or witnesses) or schedule a deposition(s) based on
DEPOSITON COORDINATION PROTOCOL &
ORDER - 9
CASE NO. 2:23-cv-01495-JHC

1

any disputes regarding coordination unless Amazon files a motion for a Protective Order. Nothing

2

in this Paragraph shall affect Amazon’s right to object to any deposition notice issued pursuant to

3

Rule 30(b)(6) on any grounds.

4

V.

5

NON-PARTY WITNESS DEPOSITION COORDINATION
25.

The Parties agree that a Party seeking the deposition of a Non-Party witness will

6

issue and send to the other Parties a deposition notice with a proposed date for the deposition,

7

which absent mutual agreement or leave of Court for good cause, shall not be set for a date any

8

earlier than forty-five (45) calendar days from the date the Party serves the deposition notice. A

9

Party may serve a deposition notice without first obtaining or issuing a subpoena to compel

10

attendance of the Non-Party witness at the deposition.

11

26.

The Party receiving the deposition notice shall, within fourteen (14) calendar days,

12

advise the Party seeking the deposition as to whether it intends to cross-notice the deposition and

13

if so, shall either (i) confirm the proposed date, or (ii) propose reasonable alternative dates.

14

27.

If the Party receiving the deposition notice intends to seek documents in connection

15

with the deposition of the Non-Party witness, the Party receiving the deposition notice shall also,

16

within fourteen (14) calendar days, serve any subpoena for production of such documents on the

17

Non-Party witness (or any other Non-Party affiliated with or previously affiliated with the Non-

18

Party witness, as applicable). The Party serving such a document subpoena on a Non-Party shall

19

use its best efforts to reach an agreement with the Non-Party regarding the scope and timing of

20

document production, or to otherwise enforce the subpoena, so as to not unreasonably delay the

21

taking of the Non-Party deposition noticed by the other Party.

22

28.

If the Non-Party witness or their counsel is not reasonably available on the date

23

noticed, the noticing Party shall promptly notify all Parties, and the Parties shall meet and confer

24

within five (5) calendar days thereof regarding a date, time, and location for the noticed deposition

25

that is acceptable to all Parties and the Non-Party witness.

26
DEPOSITON COORDINATION PROTOCOL &
ORDER - 10
CASE NO. 2:23-cv-01495-JHC

1

29.

For depositions that are noticed by Plaintiffs and cross-noticed by Amazon, or vice

2

versa, the Parties agree to work in good faith to equally allocate the time available to question each

3

Non-Party witness between Amazon, on the one hand, and Plaintiffs and the Coordinated

4

Plaintiffs’ Attorneys, on the other hand.

5

30.

The Parties agree to work in good faith to minimize the burden on and

6

inconvenience to Non-Parties, including by discussing mutually agreeable modifications to the

7

date, time, and location for each deposition that will (i) allow for reasonable coordination with

8

depositions of the same Non-Party in the Coordinated Actions; (ii) allow the Parties a reasonable

9

opportunity to obtain documents related to the deposition from the Non-Party pursuant to a

10

subpoena in advance of any such deposition; and (iii) allow for reasonable coordination with

11

depositions of the same Non-Party in the Mbadiwe Action.

12
13
14

IT IS SO ORDERED
DATED this 12th day of November, 2024.

15

_______________________________
JOHN H. CHUN
UNITED STATES DISTRICT JUDGE

16
17
18
19
20
21
22
23
24
25
26
DEPOSITON COORDINATION PROTOCOL &
ORDER - 11
CASE NO. 2:23-cv-01495-JHC