Duane Morris Class Action Review - 2023 - Report - Page 271
continuing violation until “the last unequal payment made to a female District teacher,”
with the plaintiff setting forth evidence of unequal payment up to the date of the hearing.
Id. at *8. The court explained that the Third Circuit has addressed the importance of
respecting the “continuing violation” theory in discrimination cases, finding that “[t]he
liberal application of the congressionally mandated filing period is consistent with the
remedial purposes of Title VII and the liberal interpretation to be given to all Title VII
provisions.” Id. at *9. For these reasons, the court denied the motion for a stay as well
as the motion for interlocutory appeal.
H.
Class Action Discovery Issues
Arguably, the most contentious issue in any class action is the scope of discovery. The
plaintiffs often seek extensive electronically stored information (ESI) information and
broad discovery and the defendants are kept in a constant struggle to attempt to reduce
the scope of the plaintiffs’ discovery requests and save money attendant discovery. In
2022, courts issued several key rulings regarding class action discovery.
One of the most significant is Garner, et al. v. Amazon.com, Inc., 2022 U.S. Dist. LEXIS
197723 (W.D. Wash. Oct. 31, 2022), where the court allowed the plaintiffs broad ESI
discovery in their class action against Amazon. The plaintiffs filed a class action alleging
that the defendant’s Alexa-enabled devices were sold to consumers using unfair or
deceptive advertising and illegally record conversations in violation of state law. During
discovery, the plaintiffs moved to compel production from 38 strings of terms to be used
when searching the electronically-stored information of 36 Amazon employees. The
defendant objected to the discovery requests, asserting that the search terms lacked
relevance and proportionality and that the requested production would be unduly
burdensome. Id. at *2. The defendant also contended that the plaintiffs failed to comply
with the earlier ESI order negotiated by the parties. Finally, the defendant argued that
many of the plaintiffs’ proposed search terms had no connection to its Alexa service and
were irrelevant. The court disagreed. It found that the plaintiffs made a good faith effort
to generate search term strings that would capture relevant documents. Id. at *4. The
court noted that the plaintiffs also made five revisions to their initial proposals during the
meet and confer process, which narrowed the requests and reduced the number of hits
by a third. Id. The court also determined that the plaintiffs’ claims - that the defendant
illegally recorded private conversations to generate additional revenues - warranted
discovery regarding the defendant’s intent/knowledge, complaints, and how Alexaenabled devices function. Id. at *5. The court opined that although the scope of the
requested discovery production was large, the claims at issue in the class action
required such a production and the defendant offered no explanation as to how running
the requested searches would be overly burdensome. Finally, the court reasoned that
as to complying with the ESI order, the plaintiffs engaged in the meet and confer
process in good faith, and made several modifications based on input from the
defendant. For these reasons, the court granted the plaintiffs’ motion to compel
discovery.
In Roy, et al. v. Fedex Ground Package Systems, Inc., 2022 WL 17343846 (D. Mass.
Nov. 30, 2022), the court granted the plaintiff’s motion to compel and found that the
270
© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023
