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`Case 2:22-cv-01599-KKE Document 132 Filed 08/16/24 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`Plaintiff(s),
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`v.
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`STEVEN FLOYD, et al.,
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`AMAZON.COM INC., et al.,
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`
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`Defendant(s).
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`CASE NO. C22-1599-KKE
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`ORDER GRANTING MOTION TO
`COMPEL
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`Months after Defendant Apple Inc. served discovery requests on Plaintiff Steven Floyd,
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`who was at the time the sole named plaintiff in this putative class action, and long after the
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`responses to those requests were due and remain unanswered, Floyd seeks to—in response to
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`Apple’s motion to compel—withdraw as a named plaintiff, dismissing his claims without prejudice
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`to remain an absent class member. Apple does not oppose Floyd’s withdrawal, but requests that
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`the Court first compel him to respond to the outstanding discovery requests and appear for a
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`deposition that was noticed by Apple and Defendant Amazon.com Inc. (“Amazon”) before he
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`sought to withdraw. Because the Court finds that Defendants would suffer prejudice if Floyd were
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`permitted to withdraw without responding to the outstanding requests for discovery and testifying
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`at a deposition, the Court will grant Apple’s motion to compel and defer ruling on Floyd’s motion
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`to withdraw until after he has complied with these discovery conditions.
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`ORDER GRANTING MOTION TO COMPEL - 1
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`

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`Case 2:22-cv-01599-KKE Document 132 Filed 08/16/24 Page 2 of 8
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`I.
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`BACKGROUND
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`This case was filed in November 2022 as a putative class action with Floyd as the sole
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`named plaintiff, alleging that he was overcharged when he purchased a new Apple product on
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`Amazon’s website as a result of the Global Tenets Agreement between Defendants. See, e.g., Dkt.
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`No. 1 ¶ 22. Since the time of filing, the parties have briefed two rounds of motions to dismiss, a
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`contested motion to amend the complaint, and several discovery disputes requiring Court
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`intervention. Dkt. Nos. 30, 32, 42, 43, 53, 76, 80, 89, 90.
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`Defendants served requests for production on Floyd, and his counsel objected on multiple
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`general and specific grounds in October 2023. See Dkt. No. 90 at 31–75. Floyd has not produced
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`any documents in response to those requests (or any others). Dkt. No. 104 at 6. On February 8,
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`2024, Apple served interrogatories on Floyd, seeking information about his purchases and use of
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`smartphones and tablets, as well as the purchases and uses of his household members. Dkt. No.
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`90 at 10. On February 13, Floyd’s counsel responded to Apple, explaining that Floyd had “become
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`difficult to reach” but had “not withdrawn as a class representative[.]” Dkt. No. 105 at 6.
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`Defendants replied on February 22, inquiring as to (among other things) Floyd’s availability for a
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`deposition. Id. at 5. His counsel responded the next day that they would not be able to provide
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`information about Floyd’s availability until they heard from Floyd himself. Id. On February 26,
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`Defendants indicated that they had “no choice but to issue a notice” for Floyd’s deposition if his
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`counsel could not provide an available date. Id. at 4.
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`
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`Floyd’s counsel moved for leave to amend the complaint on February 29, seeking to add
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`two new named plaintiffs but not, at that time, seeking to withdraw Floyd. Dkt. No. 80. Apple
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`opposed that motion on the grounds that Floyd was an improper class representative from the
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`inception of this case, and that it was unfair that Defendants had been forced to respond to
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`discovery while this case proceeded with one inadequate named plaintiff. Dkt. No. 86. Apple
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`ORDER GRANTING MOTION TO COMPEL - 2
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`Case 2:22-cv-01599-KKE Document 132 Filed 08/16/24 Page 3 of 8
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`noted that it had “devoted significant time and expense to discovery, and served requests for
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`production and interrogatories that have been frustrated by Floyd’s failure to respond
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`substantively.” Id. at 14. Defendants argued in the alternative that if new plaintiffs are added,
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`Floyd’s counsel should be required to show that the Court should stay discovery against
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`Defendants to allow them to minimally test whether the new representatives would be adequate
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`class representatives before requiring Defendants to expend resources on discovery. Id. at 17–18.
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`On March 11, 2024, Floyd’s counsel provided “objections and response” to Apple’s
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`interrogatories (Dkt. No. 90 at 21–28), lodging what Apple characterizes as “boilerplate and
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`conclusory objections” with no actual information from Floyd, and no indication that the document
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`was prepared with Floyd’s input or participation. Dkt. No. 104 at 6.
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`The Court granted Floyd’s motion for leave to amend on May 6, and Floyd and the new
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`named Plaintiffs filed a second amended complaint the next day, on May 7. See Dkt. Nos. 98, 99.
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`On May 8, Amazon served a notice of Floyd’s deposition on Plaintiffs’ counsel for May 28. Dkt.
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`No. 105 at 9. In that notice, Amazon explained that it “expects that Mr. Floyd will answer
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`interrogatories and produce responsive documents to Amazon’s outstanding discovery requests …
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`at least 10 days before the deposition.” Id. Plaintiffs’ counsel responded on May 10 that they
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`would produce Floyd for a deposition if he reengaged with them. Id. at 20. Floyd did not reengage,
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`appear for the deposition, or respond to any of the outstanding discovery requests.
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`Apple filed this motion to compel Floyd to respond to the discovery requests and appear
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`for a deposition. Dkt. No. 104.1 In response/opposition, Plaintiffs’ counsel cross-moved to
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`withdraw Floyd as a named plaintiff, although Floyd intends to remain an absent class member.
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`Dkt. No. 114. In a consolidated reply/response, Apple agrees that Floyd may withdraw as a named
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`1 Amazon concurred in the motion as well. See Dkt. No. 104 at 5 n.1.
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`ORDER GRANTING MOTION TO COMPEL - 3
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`Case 2:22-cv-01599-KKE Document 132 Filed 08/16/24 Page 4 of 8
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`plaintiff if he chooses, but insists that his withdrawal should be conditioned on his testifying for a
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`deposition and responding to the discovery requests that were propounded or noticed while he
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`remained a named Plaintiff (as he does to this day). Dkt. No. 125. Defendants contend that they
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`would be prejudiced if the Court allows Floyd to avoid his discovery obligations as a party simply
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`by withdrawing. Id. at 10.
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`
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`Apple’s motion to compel and Floyd’s motion to withdraw are now ripe for resolution, and
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`the Court has considered the parties’ briefing2 and heard oral argument on both motions. For the
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`following reasons, the Court will grant Apple’s motion to compel and defer ruling on Floyd’s
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`motion to withdraw.
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`II.
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`ANALYSIS
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`
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`The burden to obtain discovery of any kind from absent class members is very high. See,
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`e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 810 n.2 (1985) (noting that burdens, including
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`discovery, “are rarely imposed upon plaintiff class members”). On the other hand, by filing a
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`lawsuit in a putative class action, a named plaintiff is obligated to “participate in discovery and
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`provide testimony.” Fraley v. Facebook Inc., No. C 11-1726-LHK (PSG), 2012 WL 555071, at
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`*3 (N.D. Cal. Feb. 21, 2012). The scope of discovery is broad, restricted only to “any
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`nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs
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`of the case[.]” Fed. R. Civ. P. 26(b)(1).
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`
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`Apple contends that the discovery it seeks to compel from Floyd is relevant to: (1) class-
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`certification issues (whether the new named Plaintiffs are typical and adequate representatives of
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`class members like Floyd); (2) the merits determination of the relevant market; (3) whether Floyd
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`is a “core customer” referenced in the operative complaint (Dkt. No. 99 ¶ 91) based on his
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`2 This order refers to the parties’ briefing using CM/ECF page numbers.
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`ORDER GRANTING MOTION TO COMPEL - 4
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`Case 2:22-cv-01599-KKE Document 132 Filed 08/16/24 Page 5 of 8
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`purchasing behavior; (4) whether Plaintiffs are correct that Apple’s device records are inaccurate
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`(as they have alleged); and (5) Defendants’ defenses pertaining to the statute of limitations and
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`whether the putative class members suffered an antitrust injury. Dkt. No. 125 at 12–14.
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`Accordingly, Apple requests that Floyd be compelled to respond to the outstanding discovery and
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`testify at a deposition before he is permitted to withdraw as a named plaintiff. Dkt. No. 104.
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`
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`Plaintiffs contend that the discovery Apple seeks to compel has limited relevance, and go
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`on to argue that even if the discovery was relevant, it is not necessary or proportional to the needs
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`of the case because there are other named Plaintiffs who are ready and willing to respond to
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`discovery. Dkt. No. 127 at 4. Given that Floyd does not want to continue as a named Plaintiff,
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`and Defendants do not seek to force him to do so, Plaintiffs argue that discovery responses from
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`the named Plaintiffs other than Floyd are sufficient for Defendants’ purposes. Id. at 8.
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`
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`Discovery conditions are sometimes, but not always, imposed on a withdrawing named
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`plaintiff. Compare, e.g., Benanav v. Healthy Paws Pet Ins. LLC, No. 2:20-cv-0421-LK, 2023 WL
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`5227702, at *9–10 (W.D. Wash. Aug. 15, 2023) (where a named plaintiff sought to dismiss his
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`claims with prejudice, court conditioned dismissal on his providing discovery responses and sitting
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`for a two-hour deposition limited to issues unique to him); Gallegos v. Atria Management Co., No.
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`ED CV 16-888-JGB (SPx), 2016 WL 11824850, at *5 (C.D. Cal. Nov. 14, 2016)
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`(“[N]otwithstanding [named plaintiff’s] uncertain status, the information defendants request
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`remains relevant. Although it would not necessarily be proper for defendants to seek such
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`documents from other putative class members at this point, because [named plaintiff] initiated this
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`action and was the only named plaintiff until a month ago, it is appropriate for defendants to seek
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`such documents from her.”); Fraley, 2012 WL 555071, at *3 (requiring an outgoing named
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`plaintiff to appear for a deposition); with, e.g., In re MGM Resorts Int’l Data Breach Litig., No.
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`2:20-cv-000376-GMN-NJK, 2024 WL 1440902, at *4 (D. Nev. Apr. 2, 2024) (finding that because
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`ORDER GRANTING MOTION TO COMPEL - 5
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`

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`Case 2:22-cv-01599-KKE Document 132 Filed 08/16/24 Page 6 of 8
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`dismissing named plaintiffs without conditions “would not deprive [Defendant] of discovery on
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`uniquely situated class members” no unfair prejudice would result from the unconditional
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`withdrawal of the named plaintiffs); Doe v. Ariz. Hosp. & Healthcare Ass’n, No. CV 07-1292-
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`PHX-SRB, 2009 WL 1423378, at *14 (D. Ariz. Mar. 19, 2009) (declining to impose dismissal
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`conditions, finding them “particularly unnecessary in light of the fact that there are currently three
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`identified class representatives who could be … deposed in her stead”).
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`The Court finds that based on the circumstances of this case, granting Apple’s motion to
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`compel before turning to consider Floyd’s motion to withdraw is appropriate. Defendants’
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`discovery requests were served long before Floyd sought to withdraw, and most of them were
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`propounded when Floyd was the sole named Plaintiff. The Court is satisfied that the discovery
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`Apple seeks is relevant to its defenses as well as to some of the issues related to class certification
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`even if Floyd will not be a named plaintiff at that stage. See Dkt. No. 131 at 42–48 (Apple’s
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`arguments regarding the relevance of the Floyd discovery requests with respect to the definition
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`of the relevant market, whether households with Amazon Prime memberships are “locked in” to
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`purchasing products from Amazon as alleged in the complaint (see, e.g., Dkt. No. 99 ¶¶ 36, 101,
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`119), whether an antitrust injury occurred, whether the named Plaintiffs’ claims are typical of the
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`putative class (that would include Floyd)).
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`Apple has further explained how the “limited information” that Defendants have been able
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`to obtain about Floyd to date confirms that he possesses information relevant to the merits of this
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`litigation as well as class certification. See Dkt. No. 131 at 49. Although Plaintiffs dispute (see,
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`e.g., id. at 56–59) whether the discovery sought by Defendants will be, ultimately, persuasive as
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`to any claim or defense of this case, or as to class-certification inquiries, they have not shown that
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`the information sought does not meet the low threshold of relevance or that it is not proportional
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`ORDER GRANTING MOTION TO COMPEL - 6
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`Case 2:22-cv-01599-KKE Document 132 Filed 08/16/24 Page 7 of 8
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`to the needs of the case. Under these circumstances, Defendants are entitled to the discovery they
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`seek from Floyd, before he is permitted to withdraw as a named Plaintiff.
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`Plaintiffs suggest that discovery conditions are inappropriate based on the posture of this
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`case, arguing that Defendants would not be prejudiced by Floyd’s withdrawal this early in the
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`litigation (Dkt. No. 127 at 9, Dkt. No. 131 at 55). Their characterization of the stage of the
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`proceedings as “early” is somewhat disingenuous, however, given that the proceedings have been
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`protracted significantly due to Floyd’s non-responsiveness. That Floyd sought to withdraw
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`“before a single responsive document was produced” (Dkt. No. 127 at 9) does not alone establish
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`that Defendants would not be prejudiced by his withdrawal, given that “Floyd’s allegations alone
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`formed the basis of the initial and First Amended Complaint, and it is against his sole allegations
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`that Defendants have had to defend for nearly two years.” Dkt. No. 125 at 15.
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`Because Apple has shown that the information it seeks from Floyd is sufficiently relevant,
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`because Floyd has a unique status as the original sole named plaintiff and he possesses information
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`that may not be identical to information available from the other named plaintiffs, and because
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`Apple propounded much of this discovery long before Floyd sought to withdraw, the Court finds
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`that it is appropriate to compel him to respond and testify at a deposition before allowing Floyd to
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`withdraw. See Dysthe v. Basic Rsch., L.L.C., 273 F.R.D. 625, 628–29 (C.D. Cal. 2011) (finding
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`that because a defendant is entitled to depose a named plaintiff, and the named plaintiff has
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`information that is relevant to the litigation even if he eventually withdraws, the defendant was
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`entitled to depose named plaintiff before withdrawal); see also Gallegos, 2016 WL 11824850, at
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`*5 (compelling a named plaintiff who had filed a motion to withdraw to nonetheless respond to
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`discovery requests seeking relevant information, noting that “[a]lthough it would not necessarily
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`be proper for defendants to seek such documents from other putative class members at this point,
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`ORDER GRANTING MOTION TO COMPEL - 7
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`Case 2:22-cv-01599-KKE Document 132 Filed 08/16/24 Page 8 of 8
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`because [plaintiff] initiated this action and was the only named plaintiff until a month ago, it is
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`appropriate for defendants to seek such documents from her”).
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`III. CONCLUSION
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`For these reasons, the Court GRANTS Apple’s motion to compel (Dkt. No. 104), and
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`DEFERS ruling on Plaintiffs’ cross-motion to withdraw (Dkt. No. 114). Floyd is ORDERED to
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`respond to the outstanding interrogatories and requests for production addressed in Apple’s motion
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`no later than August 30, 2024. No later than September 30, 2024, Floyd shall testify at a deposition
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`to be scheduled at a mutually agreeable time.
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`If Floyd complies with these conditions, the parties may file a stipulated motion permitting
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`Floyd to withdraw as a named plaintiff. The clerk is directed to TERMINATE Plaintiffs’ cross-
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`motion to withdraw (Dkt. No. 114), subject to renewal if necessary.
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`Dated this 16th day of August, 2024.
`
`A
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`Kymberly K. Evanson
`United States District Judge
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`ORDER GRANTING MOTION TO COMPEL - 8
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