Discovery Ruling Issues in Consumer Voice Recording Privacy Suit Against Amazon

A five-page discovery ruling handed down on Thursday denied the plaintiffs’ motion to compel certain documents from Inc. in their case accusing its virtual voice assistant “Alexa” of invasion of privacy. The court weighed in after the parties met and conferred and after full briefing on the plaintiffs’ motion to compel.

The 2021 suit concerns allegations that Alexa illegally records conversations when not triggered by a “wake word,” or a command indicating that a person intends to communicate with the device. The suit has been through two rounds of dismissal motions, with the court sustaining the first in its entirety.

Last month however, the Seattle, Wash. court permitted some claims to proceed. Judge Robert S. Lasnik declined the wiretap claims because registered user plaintiffs agreed to audio recording, the opinion said. By contrast, the court denied the motion as to the unregistered user plaintiffs after finding that they did not consent to the practice. 

In addition, the Washington state consumer protection claim survived. The complaint sufficiently alleged that Amazon made misrepresentations about the extent to which Alexa records users, the opinion said.

Earlier this month, the plaintiffs moved to compel discovery, arguing that meet and confer efforts have stagnated and that Amazon has refused to produce almost any relevant documents. Specifically, the plaintiffs requested “all documents and/or communications” concerning how Alexa functions, what privacy disclosures were provided to registered users, what third parties use Alexa or review recordings, other complaints or investigations regarding Alexa recordings, and the number of Alexa devices and recordings in existence. 

According to this week’s opinion, Amazon objected, arguing that the requests were overbroad and unduly burdensome to the extent they sought documents before June 2018, disproportionate to the needs of the case, and that the plaintiffs’ use of the term “third parties” was vague.

Judge Lasnik denied the motion without prejudice, finding that Amazon need not produce documents prior to June 2018 because that was the parties’ agreed upon timeframe. The plaintiffs’ unilateral attempt to circumvent the agreed upon date was unfair in light of the prior accord, the court said.  

The opinion declined to “rule in the abstract” on the validity of the plaintiffs’ request for “all documents and/or communications,” related to their more than two dozen requests for production. “Without some information regarding the need for a specific universe of documents, the magnitude of that universe, and the complexity/expense of production, the Court cannot determine whether a specific discovery request is proportional to the needs of the case,” the opinion said.

Lastly, Judge Lasnik noted that although the parties should have resolved the precise meaning of “third parties” during meetings, he directed the plaintiffs to amend their requests for production from third parties to specify that they seek information related to “contractors.”

Labaton Sucharow LLP and Robbins Geller Rudman& Dowd LLP are interim co-lead class counsel and Fenwick & West LLP represents Amazon.