FILED 1 2 3 2020 AUG 20 09:34 AM KING COUNTY SUPERIOR COURT CLERK E-FILED CASE #: 20-2-10541-4 SEA The Honorable Roger Rogoff Noted for: September 1, 2020 Without Oral Argument 4 5 6 7 8 9 10 11 12 13 14 15 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING The WASHINGTON FOOD INDUSTRY ASSOCIATION, a Washington corporation, and MAPLEBEAR INC., d/b/a INSTACART, a Delaware corporation ) ) Civil Case No.: 20-2-10541-4 SEA ) ) ) Plaintiff, ) ) CITY OF SEATTLE’S MOTION FOR vs. ) PROTECTIVE ORDER ) CITY OF SEATTLE, a municipal corporation ) ) Defendant, ) ) ) 16 17 I. RELIEF REQUESTED 18 Plaintiffs in this matter have served the City of Seattle (“City”) with extensive Interrogatories 19 and Requests for Production. In the interest of conserving the parties’ resources, streamlining 20 discovery and avoiding unnecessary motions practice, the City seeks a protective order from the 21 Court enlarging the time for the City to respond to these requests to 30 calendar days after the Court 22 rules on the City’s Civil Rule 12(b)(6) Motion to Dismiss the Complaint, to the extent that any 23 CITY OF SEATTLE’S MOTION FOR PROTECTIVE ORDER - 1 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 response is necessary.1 II. 2 STATEMENT OF FACTS Plaintiffs served the City with 12 interrogatories (with multiple subparts) and 17 requests for 3 4 production.2 5 including, 6 • the identity of “all PERSONS doing business in the city of Seattle who currently meet the definition of FOOD DELIVERY NETWORK COMPANY in the ORDINANCE”; • the identity of “all PERSONS who are not employed by the City of Seattle OR any of its departments AND agencies with whom members of the Mayor, Seattle City Council OR their staff COMMUNICATED about the ORDINANCE – INCLUDING drafts, substitutes, OR amendments thereto – AND the dates AND substance of such COMMUNICATIONS”; • production of “all DOCUMENTS RELATING TO COMMUNICATIONS of the Mayor AND Seattle City Council members concerning whether the ORDINANCE, INCLUDING any drafts of OR substitutes OR amendments thereto, would comply with OR violate any provision of the Washington State Constitution, the United States Constitution, OR I-1634”; and • 14 production of “all DOCUMENTS RELATING TO contracts between the City of Seattle and any lawyers in private practice or private law firms RELATING TO representation of the City of Seattle in litigation over the ORDINANCE.”3 15 On August 5, 2020 the City filed a Motion to Dismiss the Complaint for failure to state a 16 claim in this case. That motion is currently pending before this Court, with oral argument scheduled 17 for September 18, 2020. Through a clerical error, the undersigned did not receive copies of the 18 discovery requests until August 12, 2020.4 7 8 9 10 11 12 13 19 These expansive discovery requests seek an enormous variety of information, On August 12, 2020, counsel for the City sought agreement from counsel for Plaintiffs to 20 21 22 23 By filing this motion, the City does not waive any objections it may raise to Plaintiffs’ discovery requests. 2 Declaration of Jeremiah Miller (Miller Decl.) at ¶4, Exhibit A (Plaintiffs’ First Set of Interrogatories and Requests for Production to Defendant). 3 Id. (Interrogatory Nos. 1, 3; Request for Production Nos. 9, 17). 4 Id. at ¶¶ 9-10. 1 CITY OF SEATTLE’S MOTION FOR PROTECTIVE ORDER - 2 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 allow the City to delay its responses to discovery until after the Court rules on the Motion to 2 Dismiss.5 Counsel for Plaintiff rejected the City’s request.6 On August 19, 2020 counsel for the 3 City met with counsel for Plaintiffs by telephone to discuss the matter.7 The parties were unable to 4 agree on timing for the City’s responses to discovery.8 III. 5 Should the City be temporarily relieved of the burden of responding to discovery requests 6 7 until 30 calendar days after the Court issues a ruling on its pending Motion to Dismiss? IV. 8 EVIDENCE RELIED ON This motion relies on the pleadings in this case and the Declaration of Jeremiah Miller and 9 10 STATEMENT OF THE ISSUE the exhibits attached to the declaration. V. 11 AUTHORITY & ARGUMENT 12 A. Civil Rule 26(c) 13 Under the Civil Rules, this Court “may make any [protective] order [regarding discovery] 14 which justice requires to protect a party or person from annoyance, embarrassment, oppression, or 15 undue burden or expense” upon a showing of “good cause” by the movant.9 Such orders include 16 an order “that… discovery may be had only on specified terms and conditions, including a 17 designation of the time or place….”10 For the purposes of entering a protective order, good cause 18 “is established by showing that any of the harms listed in the rule are threatened and can be avoided 19 20 21 22 23 5 Id. at ¶ 11. Id. at ¶¶ 11, 12, 15, Exhibit B (email correspondence between counsel). 7 Id. at ¶¶ 11-15. 8 Id. 9 CR 26(c). 10 CR 26(c)(2). 6 CITY OF SEATTLE’S MOTION FOR PROTECTIVE ORDER - 3 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 without impeding the discovery process.”11 In construing and administering the Civil Rules, courts 2 are “to secure the just, speedy, and inexpensive determination of every action.”12 B. Good cause exists to permit the City to delay its response to discovery until after the Court rules on the City’s Motion to Dismiss. 3 4 In this case, the City seeks only a short delay of its obligations to respond to Plaintiffs’ 5 discovery requests. Requiring the City to respond to these requests before it has been determined 6 what claims, if any, remain would result in undue burden and expense for the City. 7 In order to respond to Plaintiffs’ overly broad, unduly burdensome and potentially 8 unnecessary requests for discovery, the City must, among other things, identify and interview 9 custodians, find and collect all potentially responsive documents, collect and host a large number 10 of electronic documents, and, most significantly, review many thousands of pages of material for 11 responsiveness, confidentiality, and privilege. It will prove particularly challenging to review 12 documents for responsiveness as the scope of discovery in this matter will not be settled until the 13 Court rules on the Motion to Dismiss.13 14 Compiling responses to the interrogatories propounded by Plaintiffs is also likely to be 15 incredibly time consuming and burdensome. For example, Plaintiffs requests seek the identity of 16 17 all persons (including “full name; present or last known address; occupation, employer, and business address”) who had any kind of communication about: (1) the Ordinance or (2) “proposed 18 legislation to mandate that TRANSPORTATION NETWORK COMPANIES OR FOOD 19 DELIVERY NETWORK COMPANIES pay defined compensation AND/OR provide defined 20 21 22 23 11 Flower v. T.R.A. Indus., Inc., 127 Wash. App. 13, 38 (2005) (citing Rhinehart v. Seattle Times Co., 98 Wash.2d 226, 256 (1982)). 12 CR 1. 13 See CR 26(b)(1) (parties may “obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action”) (emphasis supplied). CITY OF SEATTLE’S MOTION FOR PROTECTIVE ORDER - 4 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 benefits….”14 As subparts for these requests, Plaintiffs seek “the dates AND substance of such 2 COMMUNICATIONS” from May 2018 to the present.15 Cataloging all persons who 3 communicated with the City about the Ordinance or any other legislation involving compensation 4 or benefits for transportation network companies’ workers, when those communications occurred, 5 and the content of those communications for the last 27 months is an enormous task. Properly evaluating the documents for responsiveness, privilege, and confidentiality is a time- 6 7 intensive process that may involve working through complicated legal issues and seeking the Court’s 8 intervention to resolve disputes about the proper scope of the requests. Indeed, as Plaintiffs have 9 requested information or responses that, on their face, seek legal advice provided to the City, such 10 11 12 13 14 15 16 disputes seem likely to arise. For example, Plaintiffs seek all documents “RELATING TO COMMUNICATIONS of the Mayor AND Seattle City Council members concerning whether the ORDINANCE, INCLUDING any drafts of OR substitutes OR amendments thereto, would comply with OR violate any provision of the Washington State Constitution, the United States Constitution, OR I-1634.”16 The time and effort that the parties and the Court would expend resolving these issues should not be required until Plaintiffs’ claims are found to be viable by the Court. Set against the burden on the City, the discovery process would be minimally impeded by a 17 18 19 20 21 22 23 short stay. The City is not seeking to be relieved from providing any response to discovery; Plaintiffs will be able to pursue discovery, as appropriate, after the Court rules on the Motion to Dismiss. Also, there will be no prejudice to Plaintiffs. The City’s Motion to Dismiss the Complaint is based on the pleadings in this matter (as well as judicial notice of undisputed public 14 Miller Decl. at ¶4, Exhibit A (Definitions, Interrogatory Nos. 3, 4). Id. 16 Miller Decl. at ¶4, Exhibit A (Request for Production No. 9). 15 CITY OF SEATTLE’S MOTION FOR PROTECTIVE ORDER - 5 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 information). There is presently no dispute involving the factual material sought by Plaintiffs, so 2 discovery is not necessary for Plaintiffs to respond to the pending Motion. Further, the current 3 case schedule includes a discovery cut-off in May of 2021. A brief delay in responses to discovery 4 will not impact the timing of this litigation. Courts generally find that protective orders delaying a party’s response to discovery until 5 6 after a ruling on a motion to dismiss are proper and serve the compelling interest of just and 7 efficient disposition of cases.17 Indeed, King County Superior Courts routinely grant such stays. 8 For example, in Expeditors Int’l of Wash., Inc. v. Expeditors (Japan), Ltd., the trial court granted a 9 motion for protective order postponing discovery pending ruling on motion to dismiss and staying 10 all discovery responses until 30 days after entry of the court’s order on the motion to dismiss.18 11 The order was upheld on appeal as within the sound discretion of the trial court and without 12 prejudicial effect on the outcome of the case.19 VI. 13 CONCLUSION The City’s request for a brief extension of time is reasonable, will reduce costs for the parties, 14 15 16 17 18 19 20 21 22 23 See, e.g., Nissen v. Pierce Cty., 183 Wash. App. 581, 597 (2014) (“CR 26(c)(1) gave the superior court discretion to stay discovery until after the CR12(b)(6) hearing, which discretion the superior court did not abuse”), aff’d in part, rev’d in part on other grounds, 183 Wash. 2d 863 (2015); see also, Lloyd v. Fitzwater, 2020 WL 1890591, at *1 (W.D. Wash. 2020) (slip copy) (delaying defendant’s obligation to respond to discovery because “a stay of discovery will facilitate the orderly and efficient progress of this case. The stay defendants seek is temporary— only until the Court rules on the pending motion to dismiss. If the motion to dismiss is denied in whole or in part, discovery will proceed”); Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987) (“[t]he purpose of [Federal Rule 12(b)(6)] is to enable defendants to challenge the legal sufficiency of complaints without subjecting themselves to discovery”). 18 Expeditors Int’l of Wash., Inc. v. Expeditors (Japan), Ltd., 2006 WL 3476844 (King Cty. Super. June 28, 2006) (Halpert, J.) (unpublished); see In re CRAY Inc. Deriv. Litig., 2006 WL 4129658 (King Cty. Super. Apr. 26, 2006) (Spearman, J.) (granting motion for a protective order staying discovery pending ruling on a motion to dismiss) (unpublished). 19 Expeditors Int’l of Wash., Inc. v. Expeditors (Japan), Ltd., 139 Wash. App. 1070 (2007) (unreported). 17 CITY OF SEATTLE’S MOTION FOR PROTECTIVE ORDER - 6 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 and will aid the Court in a just and expeditious resolution of this case. For the foregoing reasons, 2 the City respectfully requests that this Court grant the City’s Motion for a Protective Order, and 3 order that the City’s responses to Plaintiffs’ discovery, including Plaintiffs’ first requests for 4 discovery are not due until 30 calendar days after the Court rules on the Motion to Dismiss, if any 5 response is required. CERTIFICATE OF COMPLIANCE 6 7 I certify that the CITY OF SEATTLE’S MOTION FOR PROTECTIVE ORDER contains 8 1,741 words in compliance with the Local Civil Rules of the King County Superior Court as 9 amended September 1, 2016. 10 11 Dated this 20th day of August, 2020. Respectfully submitted, 12 13 s/ Jeremiah Miller Jeremiah Miller WSBA #40949 Assistant City Attorney 14 15 16 17 Erica Franklin WSBA #43477 Assistant City Attorney Seattle City Attorney’s Office 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 Email: jeremiah.miller@seattle.gov 18 19 Attorneys for Defendant, The City of Seattle 20 21 22 23 CITY OF SEATTLE’S MOTION FOR PROTECTIVE ORDER - 7 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 CERTIFICATE OF SERVICE 1 2 3 I hereby certify that, on this date, I electronically filed a true and correct copy of the following documents with the Clerk of the Court using the ECR system: 4 1. City’s Motion for Protective Order; 5 2. The Declaration of Jeremiah Miller and associated Exhibits A and B; 6 3. Proposed Order Granting City’s Motion for Protective Order; and 7 4. Notice for Hearing. 8 9 10 11 12 I further certify that on this date, I used the E-Serve function of the ECR system, which will send notification of such filing to the below-listed: Attorney for Defendant, Jeremiah Miller at: jeremiah.miller@seattle.gov; Attorney for Defendant, Erica R. Franklin at: erica.franklin@seattle.gov; Attorney for Plaintiff, Robert M. McKenna at: rmckenna@orrick.com; Attorney for Plaintiff, Daniel J. Dunne at: ddunne@orrick.com; Attorney for Plaintiff, Christine Hanley at: chanley@orrick.com. 13 14 DATED this 20th day of August, 2020, at Seattle, Washington. 15 16 /s/ Jennifer Litfin Jennifer Litfin, Paralegal 17 18 19 20 21 22 23 CITY OF SEATTLE’S MOTION FOR PROTECTIVE ORDER - 8 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 The Honorable Roger Rogoff Noted for: September 1, 2020 Without Oral Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR KING COUNTY The WASHINGTON FOOD INDUSTRY ) ASSOCIATION, a Washington corporation, and) MAPLEBEAR INC., d/b/a INSTACART, a ) Delaware corporation ) ) Plaintiff, ) ) vs. ) ) CITY OF SEATTLE, a municipal corporation ) ) Defendant, ) ) Civil Case No.: 20-2-10541-4 SEA ORDER GRANTING CITY OF SEATTLE’S MOTION FOR PROTECTIVE ORDER [PROPOSED] 16 17 THIS MATTER having come on for hearing before the undersigned judge of the above- 18 captioned Court upon Defendant City of Seattle’s Motion for Protective Order, the Court having 19 considered the evidence and argument of counsel, and the pleadings herein, finds that good cause 20 exists to delay the City’s obligation to respond to discovery until after disposition of the pending 21 CR 12(b)(6) Motion to Dismiss the Complaint. 22 IT IS HEREBY ORDERED, ADJUDGED and DECREED that: 23 Defendant City of Seattle’s Motion for Protective Order is hereby GRANTED and the [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS – 1 Peter S. Holmes Seattle City Attorney 701 Fifth Ave., Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 City is not required to respond to Plaintiffs’ discovery requests, including Plaintiffs’ First Set of 2 Interrogatories and Requests for Production, until 30 calendar days after this Court enters a 3 ruling on the City’s pending CR 12(b)(6) Motion to Dismiss. ENTERED this _____ day of _________, 2020. 4 5 _____________________________ The Honorable Roger Rogoff 6 7 Presented by: 8 PETER S. HOLMES Seattle City Attorney 9 10 By: 11 /s/ Jeremiah Miller Jeremiah Miller, WSBA #40949 Assistant City Attorney 12 13 Erica R. Franklin WSBA #43477 Assistant City Attorney 14 15 Attorneys for Defendant, The City of Seattle 16 17 18 19 20 21 22 23 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS – 2 Peter S. Holmes Seattle City Attorney 701 Fifth Ave., Suite 2050 Seattle, WA 98104-7097 (206) 684-8200