Heck v. Amazon.com Inc

— 1 — — 2 — — 3 — — 4 — — 5 — UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE — 7 — JULIA HECK, on behalf of herself and all CASE NO. 2:23-cv-01219-JHC — 8 — others similarly situated, ORDER — 9 — Plaintiff, — 10 — v. — 11 — AMAZON.COM, INC.; AUDIBLE, INC., — 12 — Defendants. — 13 — 14 I 15 INTRODUCTION 16 This matter comes before the Court on Plaintiff’s First Discovery Motion. Dkt. # 119. 17 The Court has considered the materials filed in support of and in opposition to the motion, 18 pertinent portions of the record, and the applicable law. Being fully advised, for the reasons 19 below, the Court GRANTS the motion in part and DENIES it in part. 20 II 21 BACKGROUND The Third Amended Complaint (TAC) makes allegations on behalf of a putative class — 22 — 23 that Defendants, Amazon and its subsidiary Audible, violated certain California statutes by 24 charging Plaintiff for an Audible subscription she did not want. Dkt. # 94 at 2, ¶¶ 4–8. After 1 this Court denied Defendants’ motion to dismiss, see Dkt. # 100, the parties proceeded to 2 discovery. 3 Plaintiff now moves to compel discovery. She asserts that Defendants improperly refuse 4 to produce documents responsive to ten Requests for Production (RFPs) and refuse to engage in 5 discovery of electronically stored information (ESI). Dkt. # 119. Defendants respond that 6 Plaintiff’s requests are overbroad and seek irrelevant material. In their telling, Plaintiff’s theory 7 of the case is that she was enrolled in Audible without her consent through the “digital rewards” 8 that Defendants offer in exchange for their “FREE No-Rush Shipping” feature. They say that 9 Plaintiff’s requests seek materials unrelated to this theory, such as general information about 10 Audible or its advertising practices. See Dkt. # 121 at 7–11. Defendants also argue that 11 Plaintiff’s motion is premature because they are already engaged in document review to generate 12 responses to her requests. Id. at 6–7. Last, Defendants say that they are willing to negotiate an 13 ESI protocol. Id. at 12. — 14 — III — 15 — DISCUSSION 16 A party may move for an order compelling discovery. See Fed. R. Civ. P. 37(a)(1). “The 17 court may order a party to provide further responses to an ‘evasive or incomplete disclosure, 18 answer, or response.’” See Doe v. Trump, 329 F.R.D. 262 , 270 (W.D. Wash. 2018) (citing 19 Fed. R. Civ. P. 37(a)(4)). A court has “broad discretion” to permit or deny discovery. Hallett v. 20 Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (citation omitted). 21 “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any 22 party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). 23 “District courts have broad discretion in determining relevancy for discovery purposes.” Pizzuto — 24 — 1 v. Tewalt, 136 F.4th 855, 868 (9th Cir. 2025) (citing Surfvivor Media, Inc. v. Survivor Prods., — 2 — 406 F.3d 625, 635 (9th Cir. 2005)). “Although the party seeking to compel discovery has the 3 burden of establishing that its requests” seek relevant material, the party resisting discovery bears 4 the burden of showing that the discovery should not be permitted. See Doe, 329 F.R.D. at 270 5 (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). “A party opposing 6 discovery on the basis that the request is overbroad bears the burden of showing why discovery 7 should be denied.” Thomas v. Cate, 715 F. Supp. 2d 1012, 1032 (E.D. Cal. 2010); see also 8 Rathod v. Providence Health & Servs., 2021 WL 5182362 , at *1 (W.D. Wash. June 21, 2021) 9 (the party resisting discovery bears the “initial burden of making a specific objection 10 and . . . raising an inference that the discovery fails the [Rule 26(b)] proportionality 11 calculation”). 12 A. Ripeness 13 The Court first addresses the threshold issue of whether Plaintiff’s motion is premature. 14 It appears that the parties have satisfied the requirements of LCR 37(a)(1) to meet and confer. 15 And the fact that Defendants are engaged in document review and may produce some, but 16 perhaps not all, requested materials does not affect the ripeness analysis. Cf. SAGE 17 Electrochromics Inc v. View Inc, 2013 WL 4777164 , at *4 (N.D. Cal. Sept. 6, 2013) (discovery 18 motion not ripe where parties had not conferred after supplemental response). Accordingly, the 19 Court believes the motion is ripe. 20 B. The RFPs at Issue 21 The main question presented is whether the RFPs at issue seek material that is “relevant 22 any party’s claim or defense and proportional to the needs of the case.” See Fed. R. Civ. 23 P. 26 (b)(1). — 24 — 1 1. Amended RFP 14 2 Amended RFP 14 seeks “all documents and communications concerning the enrollment 3 of Proposed Class Members in an Audible Membership.” Dkt. # 119 at 7. Plaintiff defines 4 “Proposed Class Members” as “all persons in California who were charged for an Audible 5 Membership during the Relevant Time Period [i.e. May 13, 2018 through present] and who did 6 not stream or download any content from Audible after the free trial period.” Id. at 6. 7 Defendants raise two objections to this RFP. The first is to Plaintiff’s definition of 8 “Proposed Class Members,” which they say is “not limited in any way by an alleged theory of 9 deceptive enrollment.” But this objection is unavailing. If Defendants’ concern is that the 10 definition does not track any of Plaintiff’s claims, then the objection fails because the definition 11 covers, with an apparently reasonable limitation, individuals who would likely have a claim 12 under Plaintiff’s theory of liability. If Defendants object because the definition could not pass 13 Rule 23 muster, the objection fails because Plaintiff is not attempting to define a class for the 14 purposes of Rule 23. 15 Second, Defendants object that the RFP impermissibly seeks “unfettered discovery into 16 all aspects of Audible’s operations.” Id. This objection also fails. Defendants cite Shared 17 Partnership v. Meta Platforms, 2023 WL 2526645 (N.D. Cal. Mar. 14, 2023), but it is 18 distinguishable. There, the plaintiff brought breach of contract, UCL, and fraud-based claims for 19 relief concerning a social networking website’s advertising business, and sought information on 20 “all aspects” of Defendant’s use of artificial intelligence in its vast advertising business. Id. at 21 *3. By contrast, Plaintiff here seeks information on Defendants’ activities only with respect 22 enrollment of Plaintiff and potential class members and not any generalized business practice of 23 Defendants. — 24 — 1 That said, the request as phrased—“all documents and communications concerning” 2 Defendants’ enrollment practices—sweeps very broadly and is not otherwise limited by any 3 criteria except for time and its application to Proposed Class Members. Thus, the information 4 sought is likely disproportionate to the needs of the case. Therefore, the Court ORDERS 5 Defendants to produce materials responsive to Plaintiff’s Amended Request No. 14, subject to 6 these limitations: 7 • The production will be limited to “documents sufficient to show the general 8 appearance (in all material respects) of the webpages shown to consumers enrolling in 9 an Audible membership from May 13, 2018 through July 1, 2025, and to show the 10 substance (in all material respects) of the emails that Audible sent to consumers 11 during that same period to confirm their enrollment in a trial Audible membership 12 and the terms of that Audible membership.” See Dkt. # 119 at 7 (citing Dkt. # 120-4). 13 • The production will exclude “direct communications between customers and 14 customer representatives, unless copies of such direct communications were 15 forwarded, aggregated, or escalated as part of any corporate discussion of the broader 16 issue of enrollment and charges for unused Audible Memberships.” Id. (citing 17 Dkt. # 120-5). 18 2. Amended RFPs 17 and 18 19 Amended RFPs 17 and 18 seek relevant information. These RFPs seek all documents 20 and communications from “Proposed Class Members” concerning complaints about their 21 enrollment in an Audible membership (RFP 17) or charges associated with that membership 22 (RFP 18). Dkt. # 119 at 7. Documents and communications regarding the adjudication of 23 complaints from Proposed Class Members (i.e., customers with a California billing address) are 24 relevant. The advisory committee’s note to the 2000 Amendment, endorsed by the note to the 1 2015 Amendment, makes it clear that information about “other incidents of the same type, or 2 involving the same product,” as well as “[i]nformation regarding organizational arrangements or 3 filing systems” are all properly discoverable. See Fed. R. Civ. P. 26(b) advisory committee’s 4 note to the 2000 amendment. Defendants have not shown that these requests are otherwise 5 disproportional to the needs of the case. The Court ORDERS Defendants to produce documents 6 responsive to Amended RFPs 17 and 18. 7 3. RFPs 19, 20 & 25 8 RFPs 19, 20, and 25 also seek relevant information. The first two RFPs seek 9 “[d]ocuments Sufficient to Show” the content of all advertisements and other promotional 10 materials to existing Amazon customers offering free Audible credits or titles (RFP 19) or 11 promoting an Audible Membership (RFP 20) during a specified period. RFP 25 seeks all 12 documents and communications concerning “Amazon’s offer to customer [sic] on the Amazon 13 website digital content for purchase at a discounted price (e.g., $0.00) that would result in the 14 customer being enrolled in a trial Audible Membership.” Dkt. # 119 at 6. 15 While Plaintiff does not “allege that advertisements led to her enrollment or make any 16 false advertising claims,” Dkt. # 121 at 10, advertisements may still be relevant to her claims. 17 Two of the statutes under which Plaintiff sues, the CLRA and the ARL, contain elements to 18 which Defendants’ advertisements may be relevant. See Cal. Civ. Code § 1770 (a)(9)–(12) 19 (listing certain advertising practices as prohibited); see also Cal. Bus. & Prof. Code 20 § 17602(a)(1) (declaring unlawful any “fail[ure] to present automatic renewal offer terms in a 21 clear and conspicuous manner . . . If the offer also includes a free gift or trial”). For example, it 22 is conceivable that Defendants’ advertising, promotional materials, or the contents of whatever 23 offers it made to Plaintiff and others bear on whether Defendants “fail[ed] to present automatic 24 renewal terms.” At least one court in this Circuit has permitted discovery into advertisements 1 where the CLRA plaintiff has not made a false advertising allegation. See Cholakyan v. 2 Mercedes-Benz USA, LLC, 2011 WL 7575379 , at *23 (C.D. Cal. Dec. 20, 2011). 3 Further, relevant, non-privileged information “need not be admissible in evidence to be 4 discoverable.” See Fed. R. Civ. P. 26(b)(1). Plaintiff’s requests are limited in subject matter and 5 period, and Defendants have not otherwise shown that these requests are disproportionate or 6 overbroad. The Court ORDERS Defendants to produce materials responsive to RFPs 19, 20, and 7 25. 8 4. RFPs 21, 22 & 23 9 RFP 21 seeks documents related to the Amazon website pages displayed to existing 10 customers “concerning an Audible Membership.” Dkt. # 119 at 5. RFP 22 seeks documents 11 related to the “notice and disclosure of the terms and conditions of the Audible Membership” 12 displayed on the Amazon website to existing Amazon customers. Id. RFP 23 seeks documents 13 showing “the manner in which [Defendants] memorialized” an existing Amazon customer’s 14 agreement to the terms and conditions of an Audible membership. Id. at 6. Each request seeks 15 “Documents Sufficient to Show,” asks for “representative example[s],” and is limited to the 16 specified period. 17 But Defendants appear to have produced documents that satisfy each RFP. For RFP 23, 18 Defendants state in their brief that the terms of the Audible membership “did not significantly 19 change” during the relevant period, so the email memorialization of Plaintiff’s Audible 20 membership is representative of all such emails sent to Amazon customers. Dkt. # 121 at 10. 21 Defendants convincingly argue that Plaintiff’s dispute lies with the volume of Defendants’ 22 production, not with its sufficiency. The RFPs specifically ask for “representative examples.” 23 Courts in this Circuit generally permit parties to produce representative examples only, 24 particularly when confronted with overbroad requests. See, e.g., Reflex Media, Inc. v. Luxy Ltd., — 1 — 2021 WL 5937644 , at *6–7 (C.D. Cal. Oct. 18, 2021); Taylor v. Shutterfly, Inc., 2020 WL 2 5232607, at *2 (N.D. Cal. Sept. 2, 2020) (“the exchange of representative examples of non3 responsive and responsive documents[] is more likely to ensure” adequate discovery). And 4 Defendants are correct that screenshots from the Internet Archive’s Wayback Machine are 5 suitable. See, e.g., Saeedy v. Microsoft Corp., 757 F. Supp. 3d 1172 , 1193 (W.D. Wash. 2024) 6 (collecting authority). 7 5. Amended RFP 26 8 Plaintiff’s Amended RFP 26 seeks all documents and communications during a relevant 9 period “concerning customer experiences, processes, and design elements of enrollment in and 10 cancellation of Audible Memberships referenced” at ¶¶ 188, 218, and 232 in the Amended 11 Complaint in FTC v. Amazon.com, Inc., No. 23-cv-0932 (W.D. Wash. Sept. 20, 2023), 2023 WL 12 10406539. Dkt. # 119 at 7. That case concerned Amazon’s alleged violations of the Restore 13 Online Shoppers’ Confident Act with respect to its Prime subscription service. 14 The Court GRANTS Plaintiff’s motion with respect to Amended RFP 26, subject to the 15 modification discussed below. The FTC action concerned unwanted Prime subscriptions, and 16 the amended complaint there does make the foregoing references to Audible; and the documents 17 Plaintiff seeks appear are at least plausibly relevant to the claims here, which concern unwanted 18 Audible subscriptions. The Court thus ORDERS Defendants to produce documents and 19 communications responsive to Amended RFP 26, but only if they (1) include the term “Audible” 20 and (2) were created during the Relevant Time Period for this action. See Dkt. # 121 at 11. 21 C. ESI Protocol 22 The parties originally agreed that an ESI protocol was unnecessary; but Plaintiff now 23 says she “could not have foreseen months ago that Defendants would stonewall and slow-roll” 24 discovery. Dkt. # 119 at 14. Plaintiff asks this Court to order Defendants to produce information 1 compliant with Section C of this District’s Model Agreement Regarding Discovery of 2 Electronically Stored Information (Model ESI Order). Defendants respond that they are willing 3 to meet and confer regarding any ESI protocol, but that they refused to agree to Plaintiff’s “one4 sided proposal, which requires only Defendants to disclose their search parameters.” Dkt. # 121 5 at 11 (emphases removed). Defendants say that if the Court orders the parties to negotiate on an 6 ESI protocol, then each side should disclose no more than five custodians, as provided for by the 7 Model ESI Order. 8 This Court has broad latitude to grant protective orders and manage discovery disputes, 9 like ESI protocols. See Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206 , 10 1211–12 (9th Cir. 2002); see also Crosby v. Amazon.com, Inc., 2022 WL 522953 , at *1 (W.D. 11 Wash. Feb. 22, 2022) (“[b]ecause the parties are unable to come to an agreement regarding all 12 terms contained within an ESI discovery agreement, the Court will, in its discretion, assist the 13 parties in doing so.”). 14 Here, the factual allegations are relatively simple, regarding charges for a subscription 15 that Plaintiff says she did not sign up for. Given the circumstances presented, the Court 16 DIRECTS the parties to negotiate an ESI protocol based on the Model ESI Order. It should 17 provide for discovery of each side’s ESI. The Court agrees with Defendants that there is no 18 reason why the number of custodians must depart from the Model ESI Order. 19 IV — 20 — CONCLUSION For the reasons above, the Court GRANTS in part and DENIES in part the motion. The — 21 — Court grants the motion with respect to Plaintiff’s Amended RFPs 14, 17, 18, and 26, and RFPs — 22 — 19, 20, and 25 subject to the limitations or modifications described above. The rest of Plaintiff’s — 23 — motion is denied. The parties are DIRECTED to negotiate an ESI protocol. — 24 — 1 Dated this 2nd day of October, 2025. ° 4. Chur 3 John H. Chun United States District Judge — 4 — — 5 — — 6 — — 7 — — 8 — — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 —