Case 2:22-cv-01599-KKE Document 108 Filed 05/20/24 Page 1 of 11
`
`The Honorable Kymberly K. Evanson
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`Case No. 2:22-cv-01599-KKE
`
`[PROPOSED] JOINT SUBMISSION ON
`CASE SCHEDULE
`
`
`
`
`Plaintiffs,
`
`STEVEN FLOYD, JOLENE FURDEK, and
`JONATHAN RYAN, on behalf of themselves
`and all others similarly situated,
`
`
`v.
`
`AMAZON.COM, INC., a Delaware
`corporation, and APPLE INC., a California
`corporation,
`
`
`
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`JOINT SUBMISSION ON CASE SCHEDULE
`Case No. 2:22-cv-01599-KKE
`011121-11/2605525 V2
`
`
`
`

`

`Case 2:22-cv-01599-KKE Document 108 Filed 05/20/24 Page 2 of 11
`
`
`
`
`In accordance with the Court’s May 14, 2024, Order, the parties submit this joint statement
`setting forth their respective positions on the case schedule.
`A. Plaintiffs’ Position
`Plaintiffs respectfully request entry of the following schedule for further proceedings:
`
`EVENT1
`
`DATE FROM WITHDRAWN
`SCHEDULE (ECF NO. 68)
`
`PLAINTIFFS’ PROPOSED
`NEW DATE
`
`Substantial completion of
`documents and data
`Fact discovery cutoff
`Class Certification motion and
`opening reports
`Class Certification opposition
`and supporting reports
`Class Certification reply and
`supporting reports
`
`4/3/2024
`7/8/2024
`
`8/7/2024
`
`10/7/2024
`
`11/21/2024
`
`7/1/2024
`5/1/2025
`
`12/17/2024
`
`2/24/2025
`
`4/7/2025
`
`Plaintiffs’ proposed schedule will provide Defendants with a three-month extension to
`substantially complete their document productions, while efficiently progressing this action
`through class certification. Defendants’ counterproposal would push substantial completion out
`at least five months, imposing unjustified delays in a case that has already been substantially
`delayed. The dates Plaintiffs propose are manageable and appropriate and, respectfully, they
`should be adopted.
`1. Background
`There currently is no case schedule. It was withdrawn on April 3, 2024, after Plaintiffs
`moved to amend their complaint to add additional named Plaintiffs. See ECF No. 94. On May 6,
`2024, the Court granted leave to amend and, in doing so, directed the parties to “confer regarding
`case schedule modification and whether the statement of discovery disputes filed on March 26,
`2024 (Dkt. No. 90) should be re-briefed in light of this order.” See ECF No. 98. The Court
`instructed the parties to either file a stipulation on “these issues” or, if necessary, briefing. Id.
`
`
`1 In proposing dates only through class certification, Plaintiffs adhere to the Court’s prior
`scheduling order, which stated the Court’s preference to set “subsequent deadlines after that
`motion had been ruled upon.” ECF No. 68 at 1.
`
`JOINT SUBMISSION ON CASE SCHEDULE – 1
`Case No. 2:22-cv-01599-KKE
`011121-11/2605525 V2
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 2:22-cv-01599-KKE Document 108 Filed 05/20/24 Page 3 of 11
`
`
`
`Following the Court’s May 6 Order, Plaintiffs promptly requested a meet-and-confer. In
`
`proposing their schedule, Plaintiffs’ counsel advised Defendants that Mr. Floyd continued to be
`unresponsive, including with respect to a deposition Amazon had unilaterally noticed for May 28,
`2024.2 Plaintiffs accordingly informed Defendants that they would seek to withdraw Mr. Floyd
`as a class representative should he fail to promptly reengage. Plaintiffs’ counsel asked whether
`Defendants would stipulate to Mr. Floyd’s withdrawal, or at a minimum withdraw the May 28 date
`for his deposition. Defendants represented they would consider these basic requests, but have not
`responded.
`
`As for the case schedule, Defendants effectively defied the Court’s directive to “confer
`regarding case schedule modification” (ECF No. 98), asserting that negotiation of a schedule
`should be deferred until after the Court resolves both Plaintiffs’ motion to compel certain foreign
`documents and Apple’s motion to compel documents and a deposition from Mr. Floyd (but not
`other Plaintiffs). See ECF Nos. 104 & 106 (pending cross-motions to compel). Objecting to any
`further case deadlines, Defendants committed only to make an “initial production” of unspecified
`size in June 2024, and a “second production,” again of unknown size, in July 2024. Defendants
`set this proposal out in a draft stipulation, which Plaintiffs appropriately rejected. Then, just
`hours before this statement’s submission, Defendants changed positions and proposed a schedule
`that for the first time included dates beyond an initial and subsequent production. But even this
`proposal would compound the delay by pushing the substantial completion deadline out more
`than five months to September 13, 2024—and even further if Plaintiffs’ motion to compel certain
`foreign documents is granted (see infra for Defendants’ proposed schedule).
`2. Plaintiffs’ Proposed Schedule is Manageable and Appropriate.
`
`Plaintiffs’ schedule generously provides Defendants with nearly three additional months
`to substantially complete document productions. Defendants cannot protest that this is
`inadequate given that Defendants were obligated to substantially complete their productions
`
`
`2 On May 17, 2019, Apple filed a motion to compel Mr. Floyd’s deposition. There is no basis
`to compel Mr. Floyd’s deposition and Plaintiffs will respond to Apple’s motion to compel in
`accordance with the briefing schedule, which sets opposition briefs for June 7. See ECF No. 102.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`JOINT SUBMISSION ON CASE SCHEDULE – 2
`Case No. 2:22-cv-01599-KKE
`011121-11/2605525 V2
`
`

`

`Case 2:22-cv-01599-KKE Document 108 Filed 05/20/24 Page 4 of 11
`
`
`
`April 4. They were only fortuitously relieved of that obligation in the eleventh hour because
`Plaintiffs moved to amend. Their productions should be ready, particularly given their counsel’s
`assurance to the Court at the April 30 hearing that Defendants have been actively engaged in
`discovery and reviewing documents. If that is the case, Defendants should have sizable
`productions ready today, and no difficulty meeting a July 1, 2024 substantial completion
`deadline.
`Plaintiffs’ proposed schedule also appropriately builds in more time between substantial
`completion and subsequent case deadlines (e.g., class certification and the close of fact
`discovery). This is necessitated by Defendants’ delays. Both parties’ prior scheduling
`submissions contemplated that Defendants would make rolling productions “throughout the
`discovery period as soon [as] documents are ready to be produced.” ECF No. 67 at 2. Rolling
`productions were critical because, with them, Plaintiffs would be able to review documents, and
`take depositions, throughout the discovery period. Defendants did not make rolling productions;
`they have not produced a single responsive document.
`This renders the structure of the prior schedule unworkable. Having failed to roll out
`productions, Defendants’ only option now is to unload the entirety of their document and data
`productions at or near the substantial completion deadline (even with the extensions proposed).
`If the spacing of the existing schedule were to remain, Plaintiffs would have just three months
`between substantial completion and the close of all fact discovery—meaning Plaintiffs would
`have to analyze Defendants’ productions (which they claim will be sizable and include “large
`quantities of data”3), and all fact depositions in the case, in just three months, all while preparing
`class certification papers and expert reports due a month later.4 Without sizable rolling
`productions spaced throughout discovery, which did not happen, three months is simply not
`enough time to perform this critical work.
`
`
`
`3 ECF No. 104 at 2.
`4 Defendants’ proposal to make initial and subsequent productions of unknown size in June
`and July, see infra, does not solve the problem. These productions (if they are made) come late in
`the discovery period, and Defendants have not stated what these productions will contain or how
`substantial (or insubstantial) they might be.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`JOINT SUBMISSION ON CASE SCHEDULE – 3
`Case No. 2:22-cv-01599-KKE
`011121-11/2605525 V2
`
`

`

`Case 2:22-cv-01599-KKE Document 108 Filed 05/20/24 Page 5 of 11
`
`
`
`
`Plaintiffs’ adjustments to the schedule alleviate the prejudice, while imposing no hardship
`on Defendants. In fact, Defendants themselves have asserted that the amended complaint will
`“require meaningful changes to the scheduling order” and that the existing fact-discovery cutoff
`“is unrealistic.” See ECF No. 86 at 6. Plaintiffs’ proposal also is more aligned with this Court’s
`model schedule, which issued after the scheduling order in this matter and states “the Court’s
`preferences regarding case scheduling.” See ECF No. 79 at 3. The Court’s model contemplates
`that fact discovery will remain open until 5 months prior to trial, and 1 month prior to dispositive
`motions (see id. at 3), which is more than Plaintiffs request here. Defendants cling to the spacing
`in the prior schedule, but this case is in a different posture now, particularly because rolling
`productions did not happen. The Court has ample authority to readjust the fact-discovery cut-off
`and doing so makes eminent sense.
`Last, nothing about Mr. Floyd’s status should affect the case schedule Plaintiffs have
`proposed. After the Court granted leave to file the SAC, Plaintiffs made several further attempts
`to contact Mr. Floyd in hopes that, with the Court’s Order, he may reengage. He has not
`responded to counsel’s messages. Counsel have advised Mr. Floyd that if they do not hear from
`him by May 21, 2024, they will seek to withdraw him as a class representative, either by
`stipulation or motion. Any motion practice related to Mr. Floyd’s withdrawal, or Defendants’
`improper demand to take his deposition (ECF No. 107), can proceed in the normal course within
`the schedule Plaintiffs have proposed, and Defendants do not assert otherwise.
`3. Defendants’ Schedule Builds in Unnecessary Delay.
`
`Defendants offer two rationales for extending substantial completion by at least five
`
`months. First, Defendants contend that a July 1, 2024 substantial completion deadline is
`“impossible” and that they need at least until September 13, 2024. But Defendants have not
`shown that July 1, 2024 is unworkable. Defendants have an army of lawyers laboring on this
`case and have assured the Court (and Plaintiffs) that they are actively reviewing documents for
`production. See April 30 Hr’g Tr. at 34-36.
`In addition, any challenges Defendants may have meeting a July 1, 2024 deadline is of
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`JOINT SUBMISSION ON CASE SCHEDULE – 4
`Case No. 2:22-cv-01599-KKE
`011121-11/2605525 V2
`
`

`

`Case 2:22-cv-01599-KKE Document 108 Filed 05/20/24 Page 6 of 11
`
`
`
`their own making. Plaintiffs’ document requests have been pending for more than 10 months
`and Defendants were supposed to be positioned to meet an April 4, 2024 deadline for substantial
`completion. Granting Defendants the extension they request would effectively reward them for
`shirking their discovery obligations. Notably in this regard, Defendants’ statement below
`confirms that Defendants treated Plaintiffs’ motion to amend as a “stay,” but no stay ever issued
`in this case. Plaintiffs used the pendency of the motion to amend to ready their productions.
`Defendants should have done the same.
`
`Second, Defendants assert that additional time is needed to account for Plaintiffs’ motion
`to compel, asserting that the motion will determine the full scope of Defendants’ discovery
`obligations. But scheduling orders typically issue before discovery requests are even served, and
`long before parameters for productions are fixed. Regardless, in proposing their case schedule,
`Plaintiffs confirmed that they would not treat Defendants’ productions as being “substantially
`incomplete” by Plaintiffs’ proposed deadline if they fail to include materials subject to Plaintiffs’
`motion to compel (i.e., Canadian data and certain other foreign documents). Accordingly,
`Plaintiffs’ motion to compel provides no basis to defer the substantial completion deadline.
`* * *
`For all of these reasons, Plaintiffs respectfully request that the Court enter the schedule
`Plaintiffs have proposed.
`B. Defendants’ Statement
`Defendants propose that the Court maintain the schedule structure that it previously
`ordered with a reasonable extension of deadlines so that the Parties can efficiently and effectively
`complete the discovery that remains in this case. There are three principles that underlie
`Defendants’ proposed schedule:
`First, it imposes interim production deadlines so that the Parties will begin producing
`documents in earnest while the Court considers the motions to compel.
`Second, it adopts the same schedule structure that this Court previously entered, except
`that it pushes the starting date back to reflect the stay caused by Plaintiffs’ motion to amend the
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`JOINT SUBMISSION ON CASE SCHEDULE – 5
`Case No. 2:22-cv-01599-KKE
`011121-11/2605525 V2
`
`

`

`Case 2:22-cv-01599-KKE Document 108 Filed 05/20/24 Page 7 of 11
`
`
`
`complaint.5 Plaintiffs’ proposal asks this Court to reconsider its prior ruling setting forth a
`schedule structure that “set the fact discovery cutoff before the class certification motion is due.”
`Dkt. 68. Plaintiffs fail to meet their heavy burden to justify a change in the basic structure of the
`prior Court-ordered schedule.
`Third, it recognizes that the Court’s order on the motions to compel may require additional
`discovery and additional time to complete it. Defendants’ proposal contains a set schedule in the
`event that Plaintiffs’ motion to compel is denied. If, however, the Court grants the motion to
`compel, the Defendants will need additional time to complete the substantial additional production
`of documents and data. We therefore include a proposed schedule that would begin 90 days after
`any grant of the motion to compel.
`The table below summarizes the schedule under the Court’s prior Order, as well as
`Defendants’ proposed schedules if Plaintiffs’ motion to compel is denied or granted:
`
`Event
`
`Previously MTC Denied
`
`MTC Granted
`
`Next production of documents/data
`Subsequent production of documents/data
`Substantial completion of productions
`Fact discovery cutoff
`Class certification motion and Plaintiff class
`certification expert reports
`Class certification opposition and Defendant
`expert reports
`Class certification reply and reply expert reports
`
`N/A
`N/A
`4/3/2024
`7/8/2024
`8/7/2024
`
`6/21/2024
`7/22/2024
`9/13/2024
`12/18/2024
`1/17/2025
`
`6/21/2024
`7/22/2024
`90 days after MTC Order
`90 days thereafter
`30 days thereafter
`
`10/7/2024
`
`3/17/2025
`
`60 days thereafter
`
`11/21/2024
`
`5/1/2025
`
`45 days thereafter
`
`In contrast, Plaintiffs’ schedule would impose impossible substantial-completion
`deadlines, improperly re-litigate issues already decided by this Court, and ignore potential future
`
`
`5 Defendants are not to blame for the current status of document and data productions.
`Plaintiffs’ counsel only agreed to the search terms, custodians, and date ranges that would govern
`Amazon’s productions in March. Defendants have been diligently reviewing documents since the
`Parties reached agreement on the discovery. Those efforts were stayed when the only named-
`Plaintiff stopped responding in this case and the parties needed to brief the motion to amend. The
`lifting of the substantial completion deadline was not fortuitous, it was the direct result of the only
`plaintiff not participating in this case. Nonetheless, substantial production cannot be completed
`by July 1, particularly when there are still discovery disputes outstanding.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`JOINT SUBMISSION ON CASE SCHEDULE – 6
`Case No. 2:22-cv-01599-KKE
`011121-11/2605525 V2
`
`

`

`Case 2:22-cv-01599-KKE Document 108 Filed 05/20/24 Page 8 of 11
`
`
`
`case developments.
`First, it would be impossible to meet Plaintiffs’ proposed substantial-completion deadline.
`Defendants are preparing to produce hundreds of thousands of documents, and it will take months,
`not weeks, to complete those productions. Defendants propose making the first production on
`June 21, 2024, and a subsequent production of documents by July 22, 2024, with rolling
`productions thereafter until complete. Under Defendants’ proposed schedule, Plaintiffs will have
`six months before the deadline for fact discovery to review the June production and five months
`to review the July production. Plaintiffs are incorrect to suggest that Defendants proposed
`schedule would leave them just three months to review Defendants’ productions. If Plaintiffs need
`additional time after the substantial completing date for fact discovery, they can of course ask for
`it.
`
`Second, Plaintiffs are attempting to seek reconsideration of this Court’s decision regarding
`the order of fact discovery and class certification, but cannot show any error, let alone the manifest
`error required for reconsideration, in this Court’s prior ruling. See W.D. Wash. L.C.R. 7(h)(1).
`Specifically, Plaintiffs ask the Court to keep fact discovery open long after the class certification
`motion is filed, which they similarly requested in schedules submitted in March and September
`2023. Dkt. 41, 67. After reviewing the Parties’ proposals, the Court rejected Plaintiffs’ proposal
`and adopted the Defendants’ proposal “set[ting] the fact discovery cutoff before the class
`certification motion is due.” Dkt. 68 (emphasis added). As the Court recognized at the time,
`“Defendants have represented that they are open to additional discovery after the class certification
`motion is decided, if necessary, and the Court would consider a motion for extension of this
`deadline if that proves to be the case.” Dkt. 68. That position remains the same. If further limited,
`nonduplicative discovery after the class certification decision is necessary, the parties and the court
`can consider it then. At this stage, the Court should maintain the structure and timing it set out in
`the original case schedule, as Defendants’ proposal does here. Dkt. 68.6
`
`
`6Like the original schedule, Defendants’ proposal sets the class certification motion deadline
`30 days after the close of fact discovery, provides for 60 days for class certification opposition
`briefing, and sets 45 days for class certification reply briefing.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`JOINT SUBMISSION ON CASE SCHEDULE – 7
`Case No. 2:22-cv-01599-KKE
`011121-11/2605525 V2
`
`

`

`Case 2:22-cv-01599-KKE Document 108 Filed 05/20/24 Page 9 of 11
`
`
`
`
`Third, Plaintiffs’ proposed schedule ignores the additional time that will be needed for
`discovery if Plaintiffs’ motion to compel is granted. In that event, it would take Defendants 90
`days to review and produce the additional foreign documents and pull, review, and produce the
`foreign data. Defendants’ proposal allows for the flexibility needed when the scope of discovery
`is not yet clear. Plaintiffs’ suggestion that the Defendants can simply proceed and substantially
`complete the production of the U.S. data and documents in the next 42 days, while the motion to
`compel is pending simply does not work. By looking for U.S. material now and potentially ex-
`U.S. material later, it would compound the extraordinary burden already placed on the Defendants
`by potentially requiring double the effort for data production and requiring Defendants to review
`the same documents twice (once now and once after a ruling comes out).
`* * *
`In sum, Defendants’ proposed case schedule provides more clarity and certainty than
`Plaintiffs’ proposal. Plaintiffs’ proposed deadline for substantial completion of document
`production would likely pass before the motion to compel is decided. Defendants cannot
`substantially complete productions when it is not clear what needs to be produced. Defendants
`thus respectfully ask the Court to enter their proposed schedule.
`
`DATED: May 20, 2024
`
`
`
`Respectfully submitted,
`
`HAGENS BERMAN SOBOL SHAPIRO LLP
`
`
`
`/s/ Steve W. Berman
`Steve W. Berman, WSBA #12536
`
`/s/ Barbara A. Mahoney
`
`Barbara A. Mahoney, WSBA #31845
`HAGENS BERMAN SOBOL SHAPIRO LLP
`1301 Second Avenue, Suite 2000
`Seattle, Washington 98101
`Telephone: (206) 623-7292
`Facsimile: (206) 623-0594
`Email: steve@hbsslaw.com
`Email: barbaram@hbsslaw.com
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`JOINT SUBMISSION ON CASE SCHEDULE – 8
`Case No. 2:22-cv-01599-KKE
`011121-11/2605525 V2
`
`

`

`
`
`
`
`Case 2:22-cv-01599-KKE Document 108 Filed 05/20/24 Page 10 of 11
`
`
`
`
`
`DATED: May 20, 2024
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`JOINT SUBMISSION ON CASE SCHEDULE – 9
`Case No. 2:22-cv-01599-KKE
`011121-11/2605525 V2
`
`Ben Harrington (pro hac vice)
`Benjamin J. Siegel (pro hac vice)
`HAGENS BERMAN SOBOL SHAPIRO LLP
`715 Hearst Avenue, Suite 202
`Berkeley, California 94710
`Telephone: (510) 725-3000
`Facsimile: (510) 725-3001
`Email: benh@hbsslaw.com
`Email: bens@hbsslaw.com
`
`Attorneys for Plaintiffs and the Proposed Class
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`
`/s/ Mark S. Parris
`
`
`
`
`Mark S. Parris, WSBA #18370
`401 Union Street, Suite 3300
`Seattle, WA 98101
`Telephone: +1 206 839 4300
`Fax: +1 206 839 4301
`mparris@orrick.com
`
`WEIL GOTSHAL & MANGES, LLP
`
`/s/ Mark A. Perry
`
`
`
`Mark A. Perry (Pro Hac Vice)
`2001 M. Street NW, Suite 600
`Washington, DC 20036
`Telephone: +1 202 682 7000
`mark.perry@weil.com
`
`
`/s/ Eric S. Hochstadt
`Eric S. Hochstadt (Pro Hac Vice)
`767 Fifth Ave.
`New York, NY 10153-0119
`Telephone: +1 212 310 8000
`eric.hochstadt@weil.com
`
`
`/s/ Brian G. Liegel
`
`Brian G. Liegel (Pro Hac Vice)
`1395 Brickell Ave., Suite 1200
`Miami, FL 33131
`Telephone: +1 305 577 3180
`brian.liegel@weil.com
`
`Attorneys for Apple Inc.
`
`
`
`
`
`
`
`
`

`

`Case 2:22-cv-01599-KKE Document 108 Filed 05/20/24 Page 11 of 11
`
`
`
`
`
`
`
`By /s/ John Goldmark
`
`John Goldmark, WSBA #40980
`MaryAnn Almeida, WSBA #49086
`DAVIS WRIGHT TREMAINE, LLP
`920 Fifth Avenue, Suite 3300
`Seattle, Washington, 98104
`Phone: (206) 622-3150
`Fax: (206) 757-7700
`Email: johngoldmark@dwt.com
`
`maryannalmeida@dwt.com
`
`Jonathan E. Nuechterlein (pro hac vice)
`Benjamin M. Mundel (pro hac vice)
`SIDLEY AUSTIN LLP
`1501 K Street, N.W.
`Washington, D.C. 20005
`Phone: (202) 736-8000
`Fax: (202) 736-8711
`Email: jnuechterlein@sidley.com
`bmundel@sidley.com
`
`Attorneys for AMAZON.COM, INC.
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`JOINT SUBMISSION ON CASE SCHEDULE – 10
`Case No. 2:22-cv-01599-KKE
`011121-11/2605525 V2
`
`