According to an order issued by a Seattle, Washington court last Friday, discovery and third-party subpoenas served by the plaintiffs may proceed in the privacy suit concerning Amazon’s virtual assistant “Alexa.” Previously, the two Amazon entity defendants argued for a stay, contending that it would be an undue burden to respond to discovery requests related to claims that may be dismissed and that the subpoenas seek information that could be obtained from Amazon itself and therefore aim to harass its business partners.
As Law Street Media reported last June, the putative class action alleges that the smart speaker technology illegally records people in the vicinity, including both registered and unregistered users without their knowledge, consent, or both.
Last week’s four-page decision comes while Amazon’s motion to dismiss awaits a ruling. The e-commerce company moved to dismiss the privacy, consumer protection, and wiretap claims last October, leveling myriad pleading and merits defenses, including that users consented to the recordings, while unregistered users implicitly consented.
Among other arguments, Amazon contended that the plaintiffs’ Federal Wiretap Act claims fail “because defendants were the intended recipient of the communications.” Their Federal Stored Communications Act claims reportedly fail for want of plausible allegations showing that “Alexa is an electronic communication service, that the recordings are in electronic storage, or that they were divulged to a third party,” the court recounted in its order.
Judge Robert S. Lasnik opined that though a cursory review of the parties’ papers raises “‘a real question whether’ portions of plaintiffs’ claims will survive,” he found that Amazon did not demonstrate that a stay is warranted. The court determined that a stay would prejudice the plaintiffs because discovery they seek will purportedly bolster allegations that the defendants challenge as conclusory, like the allegation that Amazon disclosed Alexa recordings to third parties. In addition, the court found it material that the parties have less than ten months to complete fact discovery.
As for the requested third-party subpoena protective order, Judge Lasnik held that the defendants’ objections were too vague. The court said that Amazon pointed to no specific request as duplicative, while the plaintiffs showed that at least some of the information sought was within the sole control of the third parties subpoenaed. “Nor do defendants provide any facts suggesting that the discovery requests annoy, embarrass, oppress, or impose an undue burden or expense on the third parties, other than to repeat that production may not be necessary if defendants’ motion to dismiss is granted,” the opinion added.
Labaton Sucharow LLP and Robbins Geller Rudman& Dowd LLP are interim co-lead class counsel and Fenwick & West LLP represents Amazon.
