Julia Heck, on behalf of herself and all others similarly situated v. Amazon.com, Inc.; Audible, 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 Defendants Amazon.com, Inc. and Audible, Inc.’s 17 Motion to Compel Interrogatory Responses. Dkt. # 123. The Court has considered the materials 18 filed in support of and in opposition to the motion, pertinent parts of the record, and the 19 applicable law. The Court finds oral argument unnecessary. Being fully advised, for the reasons 20 below, the Court GRANTS the motion. 21 II 22 BACKGROUND 23 The Third Amended Complaint (TAC) makes allegations on behalf of a putative class 24 that Defendants, Amazon and its subsidiary Audible, violated California’s Automatic Renewal 1 Law (ARL), Cal. Bus. & Prof. Code § 17602, which violation is a predicate offense of that 2 state’s Unfair Competition Law (UCL), Cal. Bus. & Prof. Code § 17200, and Consumer Legal 3 Remedies Act (CLRA), Cal. Civ. Code. § 1770. See Dkt. # 94 at 16–20, ¶¶ 75–96. Plaintiff 4 alleges that Defendants did so by charging her and others for an Audible subscription without her 5 consent. Dkt. # 94 at 2, ¶¶ 4–8. After this Court denied Defendants’ motion to dismiss, see 6 Dkt. # 100, the parties proceeded to discovery. 7 Defendants move to compel discovery. As somewhat of a preview, in their response to 8 Plaintiff’s first discovery motion, they said that Plaintiff had not furnished facts underpinning her 9 central legal theory: that Defendants had enrolled Plaintiff into Audible without her consent 10 when she signed up for “digital rewards” in exchange for Amazon Prime’s “FREE No-Rush 11 Shipping” feature. See Dkt. # 121 at 7. Defendants now move to compel Plaintiff’s responses to 12 five interrogatories purporting to seek these facts. Dkt. # 123 at 6–7. 13 III 14 DISCUSSION 15 A party may serve interrogatories on any other party under Federal Rule of Civil 16 Procedure 33. An interrogatory “may relate to any matter that may be inquired into under 17 [Federal Rule of Civil Procedure] 26(b). See Fed. R. Civ. P. 33(a)(2). If the served party does 18 not respond or responds deficiently, the propounding party may move for an order compelling 19 the other party’s answer. See Fed. R. Civ. P. 37(b)(3)(B)(iii). “The court may order a party to 20 provide further responses to an ‘evasive or incomplete disclosure, answer, or response.’” See 21 Doe v. Trump, 329 F.R.D. 262, 270 (W.D. Wash. 2018) (citing Fed. R. Civ. P. 37(a)(4)). A court 22 has “broad discretion” to permit or deny discovery. Hallett v. Morgan, 296 F.3d 732, 751 (9th 23 Cir. 2002) (citation omitted). 24 1 “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any 2 party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). 3 “District courts have broad discretion in determining relevancy for discovery purposes.” Pizzuto 4 v. Tewalt, 136 F.4th 855, 868 (9th Cir. 2025) (citing Surfvivor Media, Inc. v. Survivor Prods., 5 406 F.3d 625, 635 (9th Cir. 2005)). “Although the party seeking to compel discovery has the 6 burden of establishing that its requests” seek relevant material, the party resisting discovery bears 7 the burden of showing that the discovery should not be permitted. See Doe, 329 F.R.D. at 270 8 (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). 9 A. Interrogatories at Issue 10 The overarching issue is whether the interrogatories at issue seek information that is 11 “relevant to any party’s claim or defense.” See Fed. R. Civ. P. 26(b)(1). Defendants say that 12 they need the factual basis of Plaintiff’s “core allegations,” or if there is no such basis, then an 13 acknowledgment of that. See Dkt. # 123 at 9–11. Plaintiff responds that the facts that 14 Defendants seek are protected by the work-product doctrine and also irrelevant. See Dkt. # 130 15 at 8–9. 16 The interrogatories at issue are as follows: 17 INTERROGATORY NO. 3: State in detail all facts concerning the things that You allegedly “thought were the ‘digital rewards’ from the ‘FREE No-Rush 18 Shipping’” option (see, e.g., TAC at ¶ 40). 19 INTERROGATORY NO. 4: Describe in detail how You received the purported “digital rewards” described in Your response to Interrogatory No. 3, 20 including all steps You took that caused You to receive them, whether Amazon or Audible provided communications related to those “digital rewards”, and, if 21 so, the contents of such communications. . . . 22 INTERROGATORY NO. 6: Describe in detail every screen or interface You 23 saw when You “used” the things described in Your responses to Interrogatories Nos. 3 and 4, including any links or buttons that You selected, any webpages 24 1 You reviewed or accessed as part of the “reward” redemption process, and any product(s) and/or service(s) that You used the “digital rewards” to obtain. 2 INTERROGATORY NO. 7: Describe in detail all the facts supporting Your 3 belief that the things You “thought were the ‘digital rewards’ from the ‘FREE No-Rush Shipping’” had a connection to Amazon Prime’s “FREE No-Rush 4 Shipping” delivery option, including any statements by Amazon or Audible that You contend establish a connection between the things You “thought were the 5 ‘digital rewards’” and “FREE No-Rush Shipping.” . . . 6 INTERROGATORY NO. 18: Describe in detail all facts supporting Your allegation that, “[w]hen a Prime member accepted the ‘digital reward’ and then 7 thought they were using that reward, Amazon sent the Prime members’ personal information to Audible.” See TAC [Dkt. # 94] ¶ 15. 8 Dkt. # 124-2. 9 1. Privilege 10 Before analyzing the relevance of the information sought by these interrogatories, the 11 Court first considers Plaintiff’s claim that the work-product doctrine prevents that information’s 12 disclosure. Plaintiff says she refused to substantively respond to Defendants’ interrogatories 13 because they seek facts developed in the pre-suit investigation conducted by Plaintiff’s counsel 14 and aree thus protected by the work-product doctrine. See Dkt. # 130 at 11–12; Dkt. # 124-6 at 15 2–3. Defendants respond that they seek only factual information underlying Plaintiff’s “FREE 16 No-Rush Shipping” theory, and that such facts are not protected by the doctrine. See Dkt. # 123 17 at 12–13 (citing Butler v. State Farm. Mut. Auto. Ins. Co., 2015 W 11714664, at *2–3 (W.D. 18 Wash. July 23, 2015) (“the work product doctrine furnishes no shield against discovery, by 19 interrogatories or deposition, of the facts that the adverse party’s lawyer has learned”; 20 compelling responses “to the extent that they seek to discover the factual basis for [the 21 plaintiff’s] claims”)). 22 “Ordinarily, a party may not discover documents and tangible things that are prepared in 23 anticipation of litigation or for trial by or for another party or its representative,” including that 24 1 party’s counsel. Fed. R. Civ. P. 26(b)(3). But if the information is “otherwise discoverable 2 under Rule 26,” that is, “relevant to any party’s claim or defense,” it may generally be 3 discovered. Id.; see also Hickman v. Taylor, 329 U.S. 495, 509–12 (1947). Generally, facts 4 “enjoy far less protection under the work product doctrine,” such that only the “mental 5 impressions, conclusions, or legal theories” built on those facts are protected. See Schreib v. Am. 6 Fam. Mut. Ins. Co., 304 F.R.D. 282, 287–88 (W.D. Wash. Dec. 15, 2014) (citation omitted). 7 “Only when a party seeking discovery attempts to ascertain facts, which inherently reveal the 8 attorney’s mental impression, does the work product protection extend to the underlying facts.” 9 Garcia v. City of El Centro, 214 F.R.D. 587, 591 (S.D. Cal. 2003) (citation modified). “Where 10 the selection, organization, and characterization of facts reveals the theories, opinions, or mental 11 impressions of a party or the party’s representative, that material qualifies as opinion work 12 product.” United States ex rel. Bagley v. TRW, Inc., 212 F.R.D. 554, 563 (C.D. Cal. 2003) 13 (citation omitted). 14 Here, Defendants’ interrogatories seek facts directly related to Plaintiff’s factual 15 allegations presented in the TAC. To the extent that they may implicate the mental impressions 16 and opinions of Plaintiff’s counsel, it should be possible to disclose these facts without revealing 17 the protected information. 18 For example, Interrogatory No. 3 asks for “all facts concerning the things that [Plaintiff] 19 allegedly ‘thought were the digital rewards’ from the ‘FREE No-Rush Shipping’ option.” Dkt. # 20 123 at 7. The interrogatory does not seek what Plaintiff’s counsel thought were the “facts 21 concerning the things that Plaintiff thought were digital rewards.” Nor could Plaintiff refuse to 22 answer the interrogatory because she provided the sought-after information to her counsel, who 23 then developed an opinion on the legal use of that fact. In any event, Rule 33(a) requires parties 24 to “furnish such information as is available to the party,” which “may include information known 1 to the responding party’s lawyer, agents, or employees.” Concrete Washout Sys., Inc. v. Minegar 2 Env’t Sys., Inc., 2005 WL 8176634, at *1 (E.D. Cal. Jan. 31, 2005) (citation modified); see also 3 Wright & Miller, 8B Fed. Prac. & Proc. Civ. § 2171 (3d ed. 2025) (a party responding to an 4 interrogatory must “give all information known to it or its attorney.”). 5 The same logic applies to Interrogatory Nos. 4 and 6, which similarly seek facts about 6 what Plaintiff did and saw or how she used Defendants’ websites. Interrogatory No. 4 asks for 7 facts about Plaintiff’s actions, including how she received digital rewards, steps she took to 8 receive them, and whether Amazon or Audible communicated with her about the rewards and the 9 contents of any such communications. Interrogatory No. 6 seeks for facts related to what 10 Plaintiff saw on Defendants’ webpages and any actions she undertook while using them. These 11 requests do not require Plaintiff’s counsel to disclose their impressions, opinions, conclusions, or 12 theories about this information. 13 Interrogatory Nos. 7 and 18 perhaps tread closer to the line but are still not objectionable. 14 Interrogatory No. 7 seeks facts supporting Plaintiff’s belief of a “connection” between the digital 15 rewards and the “FREE No-Rush Shipping” option. Somewhat similarly, Interrogatory No. 18 16 asks for facts supporting Plaintiff’s allegation that when a Prime member accepted a digital 17 reward, Amazon sent that member’s personal information to Audible. These interrogatories stay 18 in the realm of inquiring into the bases of Plaintiff’s allegations in the TAC. Again, Plaintiff’s 19 counsel need not disclose their impressions, conclusions, or theories. But Plaintiff must 20 otherwise disclose facts supporting her allegations. 21 Plaintiff’s cases are distinguishable. She principally relies on FTC v. Doxo, Inc., 2024 22 WL 5119829 (W.D. Wash. Dec. 16, 2024). The court there did reject the defendant’s attempt to 23 compel disclosure of the factual basis for attorney-generated estimates, but it is distinguishable 24 because the defendant itself had produced that underlying factual matter (communications with 1 consumers) to the plaintiff, and because the estimates were ultimately created by FTC counsel. 2 Id. at 2–3. At bottom, the defendant sought material—estimates derived from consumer 3 complaints—that had been created by an attorney and were thus work product. Torres is 4 distinguishable because the court there took issue with contention interrogatories that asked the 5 plaintiff to “identify . . . evidence” in support of claims instead of underlying facts. 2025 WL 6 1735564, at *3 (“had [the defendant]’s interrogatories sought the identification of facts []rather 7 than an ‘identif[ication] of evidence’ . . . [the p]laintiff would have been required to provide 8 responses” (quoting interrogatory)). Wilcox v. Changala, 2012 WL 12844083 (E.D. Wash. Jan. 9 18, 2012), is distinguishable because it also deals with an improperly formed contention 10 interrogatory that sought to uncover “counsel’s strategy” and “analysis of the case.” Id. at *2. 11 By contrast, all the interrogatories at issue ask for facts underlying Plaintiff’s allegations. 12 2. Relevance 13 Having concluded that the interrogatories do not seek information protected by the work- 14 product doctrine, the Court now turns to whether they seek relevant information. The Court 15 concludes that they do. Though the parties dispute the nature of Plaintiff’s central claim in the 16 TAC, the interrogatories are facially relevant in either Plaintiff’s or Defendant’s articulation of it. 17 In Defendants’ telling, Plaintiff mainly contends that she was enrolled, without her 18 consent, in Audible as a “digital reward” when she signed up for “FREE No-Rush Shipping” in 19 Prime. See Dkt. # 123 at 6. Plaintiff responds that Defendants “mischaracterize” her allegations, 20 and that she instead contends only that Defendants charged her a monthly fee for Audible that 21 “she did not know about, want, or use.” Dkt. # 130 at 8. Plaintiff contends that it does not 22 matter how she thought she was enrolled, just that she evidently was, by Defendants, without her 23 consent, id., in a manner that violates the CLRA and the UCL/ARL, see generally Dkt. # 94 24 (TAC). 1 But Plaintiff's TAC forecloses her argument against relevance. The TAC clearly 2 || articulates a link between the “digital rewards” offered via Prime’s “FREE NO-Rush Shipping” 3 feature and her enrollment in Audible. See Dkt. # 94 at 3, 9 15, id. at 9,940. Plaintiff cannot 4 || claim that Defendants mischaracterize her allegations when the interrogatories at issue seek 5 factual information directly related to specific paragraphs of the TAC. Even under Plaintiff's 6 || much more general formulation of her claims, the information sought by the interrogatories bears 7 directly on them. For example, Plaintiff's consent, her perception of how Defendants g || represented Audible, and the terms of any deal are relevant to several of the statutes that Plaintiff 9 claims Defendants violated. 10 IV 11 CONCLUSION 2 For the reasons above, the Court GRANTS the motion. Plaintiff must produce 3 supplemental answers to these interrogatories within 14 days of this order. 4 Dated this 14th day of October, 2025. 15 CJok 4. Chur 16 John H. Chun United States District Judge 17 18 19 20 21 22 23 24