Case 2:22-cv-01599-KKE Document 172 Filed 12/02/24 Page 1 of 18
`
`Honorable Kymberly K. Evanson
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`STEVEN FLOYD, JOLENE FURDEK,
`and JONATHAN RYAN, individually and
`on behalf of all others similarly situated,
`Plaintiff,
`
`v.
`AMAZON.COM INC. and APPLE INC.,
` Defendants.
`
`Case No. 2:22-cv-01599 KKE
`DEFENDANTS’ MOTION TO
`COMPEL PRODUCTION OF
`DOCUMENTS IMPROPERLY
`WITHHELD AS PRIVILEGED
`Note On Motion Calendar:
`December 23, 2024
`
`1 2 3 4 5 6 7 8 9
`1 2 3 4 5 6 7 8 9
`
`
`1010
`
`1111
`
`1212
`
`1313
`
`1414
`
`1515
`
`1616
`
`1717
`
`1818
`
`1919
`
`2020
`
`2121
`
`2222
`
`2323
`
`2424
`
`2525
`
`2626
`
`2727
`
`2828
`
`DEFENDANTS’ MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
`
`

`

`Case 2:22-cv-01599-KKE Document 172 Filed 12/02/24 Page 2 of 18
`
`TABLE OF CONTENTS
`
`Page
`INTRODUCTION .....................................................................................................................1
`BACKGROUND .......................................................................................................................1
`LEGAL STANDARD ................................................................................................................5
`ARGUMENT .............................................................................................................................5
`
`I.
`
`Plaintiffs’ Counsel Have Placed at Issue Any Communications Relating to Whether
`Counsel Had Implied Authority to Seek Amendment on Behalf of Mr. Floyd .............6
`A.
`January – March Amendment Communications ....................................7
`
`B.
`
`May 8 Communication ..........................................................................9
`
`II.
`III.
`
`The Communications Are Important to the Continuation of this Litigation ...............10
`The Court Should Consider Reviewing Certain August and September
`Communications In Camera ........................................................................................11
`CONCLUSION ........................................................................................................................12
`
`1 2 3 4 5 6 7 8 9
`1 2 3 4 5 6 7 8 9
`
`
`1010
`
`1111
`
`1212
`
`1313
`
`1414
`
`1515
`
`1616
`
`1717
`
`1818
`
`1919
`
`2020
`
`2121
`
`2222
`
`2323
`
`2424
`
`2525
`
`2626
`
`2727
`
`2828
`
`DEFENDANTS’ MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`i
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
`
`

`

`Case 2:22-cv-01599-KKE Document 172 Filed 12/02/24 Page 3 of 18
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Apple Inc. v. Samsung Elecs. Co.,
`306 F.R.D. 234 (N.D. Cal. 2015) ...........................................................................................5, 8
`
`Bittaker v. Woodford,
`331 F.3d 715 (9th Cir. 2003) .....................................................................................................9
`
`Chandola v. Seattle Hous. Auth.,
`No. C13-557 RSM, 2014 WL 4685351 (W.D. Wash. Sept. 19, 2014) .....................................4
`
`Chevron Corp. v. Pennzoil Co.,
`974 F.2d 1156 (9th Cir. 1992) ...................................................................................................6
`
`China Agritech, Inc. v. Resh,
`584 U.S. 732 (2018) .................................................................................................................10
`
`Matter of Dependency of G.M.W.,
`24 Wash. App. 2d 96, 124, 519 P.3d 272 (2022) .......................................................................5
`
`Docklight Brands Inc. v. Tilray Inc.,
`No. 2:21-CV-01692-TL, 2023 WL 1099638 (W.D. Wash. Jan. 30, 2023) ...............................4
`
`Eichman v. Fotomat Corp.,
`880 F.2d 149 (9th Cir. 1989) ...................................................................................................10
`
`Fife v. Scientific Games Corp.,
`No. 2:18-cv-00565-RBL, 2020 WL 4933959 (W.D. Wash. Aug. 24, 2020) ............................7
`
`In re Gibco Inc.,
`185 F.R.D. 296 (D. Colo. 1997) ................................................................................................8
`
`In re Grand Jury Proceedings,
`219 F.3d 175 (2d Cir. 2000).......................................................................................................8
`
`In re Grand Jury Subpoenas,
`561 F.3d 408 (5th Cir. 2009) .....................................................................................................6
`
`Hearn v. Rhay,
`68 F.R.D. 574 (E.D. Wash. 1975) ......................................................................................5, 8, 9
`
`Howery v. Int’l Ass’n of Machinsists & Aerospace Workers,
`No. C14-1814 RAJ, 2015 WL 5436802 (W.D. Wash. Sept. 15, 2015) ...................................10
`
`In re Kidder Peabody Sec. Litig.,
`168 F.R.D. 459 (S.D.N.Y. 1996) ...............................................................................................8
`
`DEFENDANTS’ MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`ii
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
`
`1 2 3 4 5 6 7 8 9
`1 2 3 4 5 6 7 8 9
`
`
`1010
`
`1111
`
`1212
`
`1313
`
`1414
`
`1515
`
`1616
`
`1717
`
`1818
`
`1919
`
`2020
`
`2121
`
`2222
`
`2323
`
`2424
`
`2525
`
`2626
`
`2727
`
`2828
`
`

`

`Case 2:22-cv-01599-KKE Document 172 Filed 12/02/24 Page 4 of 18
`
`Landmark Screens, LLC v. Morgan, Lewis & Bockius LLP,
`No. C08-02581 JF (HRL), 2009 WL 3415375 (N.D. Cal. Oct. 21, 2009) ............................8, 9
`
`Palantir Techs. Inc. v. Abramowitz,
`No. 18-MC-80132-JSC, 2020 WL 6585794 (N.D. Cal. Nov. 10, 2020) ...................................6
`
`United States ex rel. Parikh v. Premera Blue Cross,
`No. C01-0476MJP, 2006 WL 6654604 (W.D. Wash. Oct. 31, 2006) .......................................6
`
`United States v. Amlani,
`169 F.3d 1189 (9th Cir. 1999) .........................................................................................5, 9, 10
`
`US Airways, Inc. v. Sabre Holdings Corp.,
`938 F.3d 43 (2d Cir. 2019).......................................................................................................10
`
`Other Authorities
`
`Fed. R. Civ. P. 1 ...............................................................................................................................6
`
`Fed. R. Civ. P. 12 ...........................................................................................................................10
`
`Fed. R. Civ. P. 12(f) .......................................................................................................................10
`
`Fed. R. Civ. P. 23(d)(1)(D) ............................................................................................................10
`
`Fed. R. Civ. P. 26(b)(1)....................................................................................................................4
`
`Fed. R. Civ. P. 41(b) ......................................................................................................................10
`
`W.D. Wash. Local Rule 37 ..............................................................................................................2
`
`DEFENDANTS’ MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`iii
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
`
`1 2 3 4 5 6 7 8 9
`1 2 3 4 5 6 7 8 9
`
`
`1010
`
`1111
`
`1212
`
`1313
`
`1414
`
`1515
`
`1616
`
`1717
`
`1818
`
`1919
`
`2020
`
`2121
`
`2222
`
`2323
`
`2424
`
`2525
`
`2626
`
`2727
`
`2828
`
`

`

`Case 2:22-cv-01599-KKE Document 172 Filed 12/02/24 Page 5 of 18
`
`INTRODUCTION
`
`The Court should order the production of a limited set of key documents to show whether
`or not Plaintiffs’ counsel had authority to file a motion to amend and a Second Amended
`Complaint on behalf of the named plaintiff, Steven Floyd. To help assess the basis and scope of
`Plaintiffs’ counsel’s authority, if any, the Court previously ordered Plaintiffs’ counsel to produce
`all nonprivileged communications between themselves and Mr. Floyd. Plaintiffs’ counsel
`produced just a handful of documents and a “Communications Log” (“Log”) of purportedly
`privileged entries. Because this production does not provide Defendants or the Court with
`sufficient information to determine whether Plaintiffs’ counsel had authority to continue with
`Mr. Floyd’s case, and because Plaintiffs’ counsel claims privilege over communications they
`squarely put “at issue,” Plaintiffs must produce eleven documents on the Log.
`It is now beyond dispute that Plaintiffs’ counsel had no express authority from Mr. Floyd
`to file either the motion to amend or the Second Amended Complaint; the Court-ordered Log
`confirms that they did not even give him copies of those key documents before filing them. Thus,
`the only remaining question is whether Plaintiffs’ counsel had implied authority to make those
`substantive filings in his name. The Log raises significant doubt over whether Plaintiffs’ counsel
`had such implied authority, as the entries suggest that some dispute or issue occurred or arose
`between Mr. Floyd and his counsel on January 16, 2024 (and potentially earlier).
`The limited information sought by this motion is critical to justly and efficiently resolve
`this proceeding as the Log strongly suggests that Mr. Floyd did not want to proceed with his case
`once he learned that he had to comply with discovery obligations. But, due to the statute of
`limitations or some other reason, Plaintiffs’ counsel continued to prosecute the case in Mr.
`Floyd’s name, without his consent and perhaps against his interest. If Plaintiffs’ counsel had no
`authority to file the motion to amend and Second Amended Complaint on Mr. Floyd’s behalf,
`then his lawsuit must be dismissed.
`
`BACKGROUND
`In response to this Court’s November 5 Order, Plaintiffs’ counsel provided Defendants
`
`1 2 3 4 5 6 7 8 9
`1 2 3 4 5 6 7 8 9
`
`
`1010
`
`1111
`
`1212
`
`1313
`
`1414
`
`1515
`
`1616
`
`1717
`
`1818
`
`1919
`
`2020
`
`2121
`
`2222
`
`2323
`
`2424
`
`2525
`
`2626
`
`2727
`
`2828
`
`DEFENDANTS’ MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`1
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
`
`

`

`Case 2:22-cv-01599-KKE Document 172 Filed 12/02/24 Page 6 of 18
`
`Mr. Floyd Counsel
`
`Event
`To
`Mr. Floyd Text message “related to
`discovery”
`Response message “related to
`discovery”
`Mr. Floyd Email “related to discovery”
`
`with a Log that purports to list all communications to or from Mr. Floyd from September 2023
`to November 5, 2024. See Dkt. 168 at 3; Ex. A.1 Although the Log provides some insight into
`what has occurred over the last 15 months, it also raises many important unanswered questions
`about Mr. Floyd’s consent to participate in this case, his counsel’s representations to the Court,
`and whether or not Mr. Floyd authorized substantive filings.2
`Plaintiffs’ February 29 motion to amend rested on the premise that Mr. Floyd “fell out of
`contact”3 with Plaintiffs’ counsel on and after January 16, and suggested that he may have
`type of personal emergency,”4 while representing
`“experienced some
`that
`the
`last
`communication he had with counsel was “not a withdrawal.”5 But the Log, summarized in the
`charts below, paints a different picture, suggesting that something occurred between Mr. Floyd
`and his counsel on or around January 16 that led Mr. Floyd to cease communication with
`Plaintiffs’ counsel.
`Date/Time
`From
`1/11
`Counsel
`(9:51 am)
`1/11
`(9:52 am)
`1/16
`(10:15 am)
`1/16
`(11:27 am)
`1/16
`(11:56 am)
`
`Counsel
`
`Counsel
`
`Mr. Floyd Counsel
`
`Source
`Ex. A, Ln. 27
`
`Id., Ln. 28
`
`Id., Ln. 30
`
`Id., Ln. 31
`
`Id., Ln. 32
`
`Id., Ln. 33
`
`Id., Ln. 34
`
`Response email “related to
`discovery”
`Mr. Floyd Response email “related to
`discovery” attaching “Protective
`Order”
`Response email “related to
`discovery”
`Mr. Floyd Unanswered call
`
`1/16
`(12:25 pm)
`1/16
`(12:28 pm)
`
`Mr. Floyd Counsel
`
`Counsel
`
`1 Plaintiffs’ counsel sent a log to Defendants on November 15. After the meet and confer,
`Plaintiffs’ counsel provided Defendants with an amended log. The amended log is referenced
`herein as Ex. A and attached to the concurrently filed Liegel Declaration, along with Exhibits
`B–E.
`2 Pursuant to Local Rule 37, Defendants certify that they have engaged in good faith efforts to
`resolve the issues addressed herein but have been unable to reach a resolution. Ex. D.
`3 April 30, 2024 Hr’g Tr., Ex. B at 28.
`4 Dkt. 80 at 8.
`5 Dkt. 144 at 8.
`DEFENDANTS’ MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`2
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
`
`1 2 3 4 5 6 7 8 9
`1 2 3 4 5 6 7 8 9
`
`
`1010
`
`1111
`
`1212
`
`1313
`
`1414
`
`1515
`
`1616
`
`1717
`
`1818
`
`1919
`
`2020
`
`2121
`
`2222
`
`2323
`
`2424
`
`2525
`
`2626
`
`2727
`
`2828
`
`

`

`Case 2:22-cv-01599-KKE Document 172 Filed 12/02/24 Page 7 of 18
`
`The flurry of communications on January 16 indicates that after emailing with Mr. Floyd
`on January 16, counsel sent him a copy of the Protective Order, Mr. Floyd responded, and
`Plaintiff’s counsel called him just three minutes later and got no answer. Ex. A at Lns. 32, 33,
`34. Plaintiffs’ counsel expressly represented to the Court that the January 16 communication
`was “not a withdrawal” (Dkt. 144 at 8), which squarely puts at issue what Mr. Floyd actually
`said. At a minimum, the sequence of events revealed by the Log suggests that Mr. Floyd may
`have indicated his unwillingness to proceed with the case and discovery. Indeed, whatever he
`said prompted enough concern that counsel immediately called him. Mr. Floyd did not answer.
`Plaintiffs’ counsel’s actions after January 16, shown below, also imply that Mr. Floyd
`may have indicated that he did not want to continue his case. Indeed, just eight days later, on
`January 24, they began soliciting new potential class representatives via email. See Dkt. 81, ¶
`3; Ex. E (blast email).6
`The Log also calls into question Plaintiffs’ counsel’s representations to Defendants and
`the Court that they were “working diligently to regain contact” with Mr. Floyd. Dkt. 144 at 8;
`see also Dkt. 80 at 8 (“Since [January 16], class counsel [sic] has made numerous attempts to
`contact Mr. Floyd.”); Dkt. 81, ¶ 10; Dkt. 149 at 5 n.3; Nov. 5, 2024 Hr’g Tr., Ex. C at 4. A
`review of the Log shows a mere four attempts to contact Mr. Floyd before moving to amend.
`And, troublingly, after filing the motion to amend, Plaintiffs’ counsel made no attempts to further
`contact Mr. Floyd prior to the April 30 hearing, with the exception of sending him draft responses
`to Defendants’ interrogatories on March 1.
`Date/Time
`From
`To
`1/24
`Counsel
`Mr. Floyd
`(10:01 am)
`1/24
`
`Source
`Ex. A, Ln. 35
`
`Dkt. 81, ¶ 3
`
`Ex. A, Ln. 36
`
`Event
`Text message “related to
`discovery”
`Counsel initiate outreach to find
`new class members
`Mr. Floyd Unanswered call
`
`Counsel
`
`2/1
`(12:32 pm)
`
`Counsel
`
`6 During Plaintiff Furdek’s deposition, Plaintiffs’ counsel asserted improper privilege objections
`over what, if anything, Ms. Furdek was told about Mr. Floyd (or the reason for new
`representatives) before she became a client.
`DEFENDANTS’ MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`3
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
`
`1 2 3 4 5 6 7 8 9
`1 2 3 4 5 6 7 8 9
`
`
`1010
`
`1111
`
`1212
`
`1313
`
`1414
`
`1515
`
`1616
`
`1717
`
`1818
`
`1919
`
`2020
`
`2121
`
`2222
`
`2323
`
`2424
`
`2525
`
`2626
`
`2727
`
`2828
`
`

`

`Case 2:22-cv-01599-KKE Document 172 Filed 12/02/24 Page 8 of 18
`
`2/1
`(12:34 am)7
`2/13
`
`Counsel
`
`Counsel
`
`Mr. Floyd
`
`Defendants Counsel
`
`Counsel
`
`Counsel
`
`Counsel
`
`Counsel
`
`2/22
`
`2/23
`
`2/26
`(5:12 pm)
`
`2/29
`
`3/1
`(12:59 pm)
`
`4/30
`
`Text message “related to
`discovery”
`Defendants Email advising that Mr. Floyd
`“has become difficult to reach”
`and counsel are “working
`diligently to determine whether
`Mr. Floyd wishes to continue to
`serve as a class representative”
`Defendants request Mr. Floyd’s
`availability for deposition
`Defendants Plaintiffs’ counsel advise that
`they are “working diligently to
`regain contact”
`Email regarding “litigation
`strategy and amendments to
`pleadings” (no attachments)
`Plaintiffs’ counsel file motion to
`amend
`Email regarding “discovery
`responses and amendments to
`pleadings” (attaching draft
`discovery responses)
`Hearing on Motion to Amend
`
`Mr. Floyd
`
`Mr. Floyd
`
`Id., Ln. 37
`
`Dkt. 144 at 10.
`
`Id. at 9
`
`Id. at 8.
`
`Ex. A, Ln. 38
`
`Dkt. 80 at 8
`
`Ex. A, Ln. 39
`
`Dkt. 96
`
`The Log also confirms that Plaintiffs’ counsel lacked express authority to file the motion
`to amend, and casts serious doubt on whether they had implied authority. Indeed, only one entry,
`prior to Plaintiffs’ counsel moving to amend, relates to “amendment.” See Ex. A, Ln. 38. That
`entry shows that three days before moving to amend, Plaintiffs’ counsel emailed Mr. Floyd on
`February 26 “for purposes of providing legal advice related to litigation strategy and
`amendments to pleadings,” and Mr. Floyd did not respond. Id. Most notably, the email
`contained no attachments. Despite being the sole named plaintiff at the time, Mr. Floyd was
`never sent the motion to amend before it was filed on February 29.
`Finally, counsel never sent Mr. Floyd the Second Amended Complaint. That is true even
`though the pleading itself alleges that Mr. Floyd wished to “bring this action” and that he “will
`represent and protect the interests of the proposed Class.” Dkt. 99 at ¶¶ 148, 154. Instead, the
`Log reveals a March 1 email regarding “amendment,” but with no complaint attached, and an
`
`7 Defendants suspect that the text was sent at 12:34 pm.
`4
`DEFENDANTS’ MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
`
`1 2 3 4 5 6 7 8 9
`1 2 3 4 5 6 7 8 9
`
`
`1010
`
`1111
`
`1212
`
`1313
`
`1414
`
`1515
`
`1616
`
`1717
`
`1818
`
`1919
`
`2020
`
`2121
`
`2222
`
`2323
`
`2424
`
`2525
`
`2626
`
`2727
`
`2828
`
`

`

`Case 2:22-cv-01599-KKE Document 172 Filed 12/02/24 Page 9 of 18
`
`unanswered call and text message on May 8 “related to court order,” both occurring after the
`complaint was filed on May 7. Ex. A at Lns. 39, 40, 41. Nor does the Log reveal any basis for
`Plaintiffs’ counsel’s public statement, immediately after the Court granted amendment, that Mr.
`Floyd “no longer wishes to serve[.]” Dkt. 144 at 13. Indeed, despite Mr. Floyd’s continued
`silence, Plaintiffs’ counsel moved to withdraw him on June 7. Dkt. 114.
`LEGAL STANDARD
`A party may “obtain discovery regarding any nonprivileged matter that is relevant to [its]
`claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). “The
`party who resists discovery has the burden to show that discovery should not be allowed . . . .”
`Docklight Brands Inc. v. Tilray Inc., No. 2:21-CV-01692-TL, 2023 WL 1099638, at *3 (W.D.
`Wash. Jan. 30, 2023).
`A party asserting attorney-client privilege bears the burden of showing that the privilege
`applies. See Chandola v. Seattle Hous. Auth., No. C13-557 RSM, 2014 WL 4685351, at *2
`(W.D. Wash. Sept. 19, 2014). Implicit waiver of privilege occurs “when the privilege holder
`raises a claim or defense that puts privileged communications at issue.” Apple Inc. v. Samsung
`Elecs. Co., 306 F.R.D. 234, 241 (N.D. Cal. 2015). Privilege is waived when: “(1) assertion of
`the privilege was the result of some affirmative act, such as filing suit, by the asserting party, (2)
`through this affirmative act, the asserting party put the protected information at issue by making
`it relevant to the case, and (3) application of the privilege would have denied the opposing party
`access to information vital to his defense.” Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash.
`1975); United States v. Amlani, 169 F.3d 1189, 1195 (9th Cir. 1999) (similar).
`ARGUMENT
`A lawyer can take no action on behalf of a client—including by making substantive
`filings in the name of that client—without the client’s authority. See Wash. R.P.C. 1.2(f)
`(prohibiting a lawyer from acting “if the lawyer knows or reasonably should know that the lawyer
`is acting without the authority of that person”); 1.2(a) (“A lawyer may take such action on behalf
`of the client as is impliedly authorized to carry out the representation.”); Matter of Dependency
`of G.M.W., 24 Wash. App. 2d 96, 124, 519 P.3d 272, 287 (2022) (“No attorney could ethically
`
`DEFENDANTS’ MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`5
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
`
`1 2 3 4 5 6 7 8 9
`1 2 3 4 5 6 7 8 9
`
`
`1010
`
`1111
`
`1212
`
`1313
`
`1414
`
`1515
`
`1616
`
`1717
`
`1818
`
`1919
`
`2020
`
`2121
`
`2222
`
`2323
`
`2424
`
`2525
`
`2626
`
`2727
`
`2828
`
`

`

`Case 2:22-cv-01599-KKE Document 172 Filed 12/02/24 Page 10 of 18
`
`or effectively represent a client when they have no reachable client to consult and do not know
`the client’s position on the relevant issues.”); Dkt. 143 at 12.
`The Log makes clear that Plaintiffs’ counsel did not have Mr. Floyd’s express authority
`to file the motion to amend or Second Amended Complaint. Thus, as the Court recognized
`during the hearing on November 5 (see Ex. C at 21), the critical question is whether Plaintiffs’
`counsel had Mr. Floyd’s implied authority to make such filings. That question can only be
`answered by examining the content of certain communications that Defendants are forced to
`move to compel. Mr. Floyd’s communications may reveal, for instance, that he wished to
`terminate or withdraw from his lawsuit because he did not want to comply with discovery, or he
`did not wish to add additional plaintiffs. The future of this litigation turns on the answer to these
`questions: if Plaintiffs’ counsel lacked implied authority to file the motion to amend or the
`Second Amended Complaint, then this case must be dismissed with prejudice.
`I.
`Plaintiffs’ Counsel Have Placed at Issue Any Communications Relating to
`Whether Counsel Had Implied Authority to Seek Amendment on Behalf of Mr.
`Floyd
`Plaintiffs’ counsel have made affirmative representations regarding Mr. Floyd’s
`willingness to participate, including the express statement that Mr. Floyd did not communicate
`a desire to withdraw on January 16. See, e.g., Dkt. 80 at 8. They have insisted that they had
`implied authority to move to amend on Mr. Floyd’s behalf and that their actions were supported
`by applicable law and the ethics rules. Id.
`As a threshold matter, the privilege belongs to the client, Mr. Floyd; and it is unclear on
`what basis Plaintiffs’ counsel is asserting privilege over these communications as the record does
`not indicate that counsel even attempted to contact Mr. Floyd before asserting privilege on his
`behalf. See In re Grand Jury Subpoenas, 561 F.3d 408, 411 (5th Cir. 2009). Indeed, prolonging
`this dispute by shielding these communications by claiming privilege may be contrary to Mr.
`Floyd’s wishes and best interests if, for instance, he has indicated a desire to end his case (or to
`not participate in discovery, which would be the result if the case were terminated).
`
`1 2 3 4 5 6 7 8 9
`1 2 3 4 5 6 7 8 9
`
`
`1010
`
`1111
`
`1212
`
`1313
`
`1414
`
`1515
`
`1616
`
`1717
`
`1818
`
`1919
`
`2020
`
`2121
`
`2222
`
`2323
`
`2424
`
`2525
`
`2626
`
`2727
`
`2828
`
`DEFENDANTS’ MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`6
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
`
`

`

`Case 2:22-cv-01599-KKE Document 172 Filed 12/02/24 Page 11 of 18
`
`But even if Mr. Floyd did invoke the privilege, Plaintiffs’ counsel have placed “at issue”
`the communications on the Log that directly relate to whether counsel had implied authority to
`seek amendment. “Where a party raises a claim which in fairness requires disclosure of the
`protected communication, the privilege may be implicitly waived.” Chevron Corp. v. Pennzoil
`Co., 974 F.2d 1156, 1162 (9th Cir. 1992). Plaintiffs’ counsel’s descriptions of their critical
`communications with Mr. Floyd cannot be used “both as a sword and a shield” to justify their
`conduct without allowing Defendants any basis to challenge their (questionable) assertions. See,
`e.g., Palantir Techs. Inc. v. Abramowitz, No. 18-MC-80132-JSC, 2020 WL 6585794, at *1 (N.D.
`Cal. Nov. 10, 2020) (granting motion to compel); United States ex rel. Parikh v. Premera Blue
`Cross, No. C01-0476MJP, 2006 WL 6654604, at *1 (W.D. Wash. Oct. 31, 2006) (similar); see
`also Fed. R. Civ. P. 1. Given that Plaintiffs’ counsel had no express authority to act, their
`assertion of implied authority must be tested against the available evidence—the actual
`communications between Mr. Floyd and counsel at critical junctures.
`A.
`January – March Amendment Communications
`
`Plaintiffs’ counsel placed ten of their communications with Mr. Floyd between January
`and March—Ex. A at Lns. 27, 28, 30, 31, 32, 33, 35, 37, 38, 39—“at issue” in two ways.
`First, Plaintiffs’ counsel have repeatedly characterized the events surrounding Mr.
`Floyd’s January 16 communications with them, commenting on whether and why they lost
`contact with Mr. Floyd. In their motion to amend, counsel portrayed an unexpected “lapse” in
`communication and suggested that “there may be legitimate reasons for [Mr. Floyd’s] recent
`non-responsiveness,” such as a “personal emergency.” Dkt. 80 at 5, 8. However, Plaintiffs’
`counsel continued to reassure both this Court and Defendants that “Mr. Floyd has never
`affirmatively withdrawn,” and that counsel was “reluctant to interpret his silence as evincing an
`intent to withdraw.” Id. at 8; see also Dkt. 144 at 8 (Plaintiffs’ counsel stating that they “last
`communicated with Mr. Floyd on January 16, 2024 (and, again, it was not a withdrawal).”
`(emphasis added)). Instead, Plaintiffs’ counsel used Mr. Floyd’s silence as purported authority
`to move to amend and add new class representatives on his behalf. See Dkt. 80. These assertions
`
`DEFENDANTS’ MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`7
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
`
`1 2 3 4 5 6 7 8 9
`1 2 3 4 5 6 7 8 9
`
`
`1010
`
`1111
`
`1212
`
`1313
`
`1414
`
`1515
`
`1616
`
`1717
`
`1818
`
`1919
`
`2020
`
`2121
`
`2222
`
`2323
`
`2424
`
`2525
`
`2626
`
`2727
`
`2828
`
`

`

`Case 2:22-cv-01599-KKE Document 172 Filed 12/02/24 Page 12 of 18
`
`about Mr. Floyd’s willingness to proceed with his case and Plaintiffs counsel’s implied authority
`are either supported or refuted by the actual communications, and have been placed at issue.
`Second, Plaintiffs’ counsel have relied on Fife v. Scientific Games Corp., No. 2:18-cv-
`00565-RBL, 2020 WL 4933959 (W.D. Wash. Aug. 24, 2020), arguing in their motion to amend
`that “courts in this district have granted precertification motions to substitute class
`representatives who have withdrawn or ceased communicating with counsel.” Dkt. 80 at 10. At
`the motion to amend hearing, counsel analogized Mr. Floyd’s situation to that in Fife, noting that
`the “court granted leave to amend where . . . the existing representative had, quote, informed
`their counsel that she had grown tired of the case and fell out of contact. Fell out of contact. The
`exact same thing we have here.” Ex. B at 28. And, in support of their motion to withdraw,
`counsel cited Fife for the same proposition. See Dkt. 149 at 7.
`These arguments have squarely put the content of counsel’s communications with Mr.
`Floyd in January, even if privileged, at issue. They necessitate an answer as to whether Mr.
`Floyd’s last communications are similar to Ms. Fife’s, or instead show that Mr. Floyd did not
`wish for his case to proceed. This information is especially relevant because Plaintiffs’ counsel
`have urged that they had authority from Mr. Floyd to file the motion to amend and Second
`Amended Complaint, as opposed to authority to dismiss his lawsuit. See Dkt. 80; Dkt. 99; Dkt.
`149 at 8. Given that we now know they had no express authority, the basis for any implied
`authority must be established.
`Resolution of this dispute requires disclosure of what was said in the communications
`surrounding Mr. Floyd’s last active involvement in the litigation. These communications
`themselves are vital to knowing why Mr. Floyd ceased engaging with counsel and what counsel
`should have done at that point. It would be unfair to allow Plaintiffs’ counsel to make repeated
`one-sided factual assertions relating to their implied authority to act, while shielding what led
`Mr. Floyd to stop communicating on January 16. See Samsung Elecs. Co., 306 F.R.D. at 242
`(waiver where Samsung “referenced” privileged communications to support its arguments); In
`re Kidder Peabody Sec. Litig., 168 F.R.D. 459, 470 (S.D.N.Y. 1996) (waiver where privilege
`holder “makes factual assertions the truth of which can only be assessed by examination of the
`
`1 2 3 4 5 6 7 8 9
`1 2 3 4 5 6 7 8 9
`
`
`1010
`
`1111
`
`1212
`
`1313
`
`1414
`
`1515
`
`1616
`
`1717
`
`1818
`
`1919
`
`2020
`
`2121
`
`2222
`
`2323
`
`2424
`
`2525
`
`2626
`
`2727
`
`2828
`
`DEFENDANTS’ MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`8
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
`
`

`

`Case 2:22-cv-01599-KKE Document 172 Filed 12/02/24 Page 13 of 18
`
`privileged communication”); In re Gibco Inc., 185 F.R.D. 296, 301 (D. Colo. 1997) (similar).
`The Court itself recognized the importance of the January 16 communications. See Ex. C at 8
`(“[D]oesn’t it matter what Floyd said in that last communication in January?”).
`Besides the January 16 communications, Plaintiffs’ counsel should also be ordered to
`produce the January 11 communications (which reference the same subject matter), as they likely
`provide context for the flurry of communications just days later leading to counsel sending Mr.
`Floyd the Protective Order, Mr. Floyd’s response, and the unanswered phone call. See Ex. A,
`Lns. 27, 28. Likewise, counsel should produce their January 24, February 1, and February 26
`communications (Ex. A, Lns. 35, 37, 38) with Mr. Floyd as they all appear to similarly relate to
`Mr. Floyd’s decision to cease communicating with his counsel, which Plaintiffs’ counsel have
`claimed provide them with implied authority to make filings on his behalf. Additionally, counsel
`should produce the March 1 communication (Ex. A, Ln. 39), which counsel have said relates to
`“amendment” (Ex. D) and occurred after they moved to amend.
`These key communications, along with others relating to counsel’s implied authority, are
`relevant to Plaintiffs’ claims and necessary to allow Defendants to challenge counsel’s assertion
`that they had authority to amend on Mr. Floyd’s behalf. See Samsung Elecs. Co., 306 F.R.D. at
`242; Landmark Screens, LLC v. Morgan, Lewis & Bockius LLP, No. C08-02581 JF (HRL), 2009
`WL 3415375, at *2 (N.D. Cal. Oct. 21, 2009) (where awareness of alleged fraud was put at issue,
`“[i]nformation that shows when [plaintiff] discovered the alleged fraud [is] vital to [defendant’s]
`defense, and the Hearn test is met.”); In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir.
`2000) (citing Hearn and noting that “a party cannot partially disclose . . . or affirmatively rely
`on privileged communications to support its claim or defense and then shield the underlying
`communications from scrutiny by the opposing party”).
`B.
`May 8 Communication
`
`When Plaintiffs filed the Second Amended Complaint, Mr. Floyd was re-named as a
`representative, and the pleading alleges the desire of “Plaintiffs,” including Mr. Floyd, to
`continue with this case and to “protect the interest of the proposed Class.” Dkt. 99 ¶¶ 148, 154.
`
`DEFENDANTS’ MOTION TO COMPEL
`CASE NO. 2:22-CV-01599 KKE
`
`9
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`401 Union Street, Suite 3300
` Seattle, Washington 98101
`+1-206-839-4300
`
`1 2 3 4 5 6 7 8 9
`1 2 3 4 5 6 7 8 9
`
`
`1010
`
`1111
`
`1212
`
`1313
`
`1414
`
`1515
`
`1616
`
`1717
`
`1818
`
`1919
`
`2020
`
`2121
`
`2222
`
`2323
`
`2424
`
`2525
`
`2626
`
`2727
`
`2828
`
`

`

`Case 2:22-cv-01599-KKE Document 172 Filed 12/02/24 Page 14 of 18
`
`That allegation requires substantiation—particularly where, as we now know, counsel never sent
`the amended complaint to Mr. Floyd. The only document potentially connected to any authority
`to make that filing is a text message “related to court order” to Mr. Floyd the day after the
`amended complaint was filed. Ex. A at Ln. 41.