Robert Whaley, Plaintiff, v. Amazon.com, Inc.; Amazon.com Services, LLC; Amazon Logistics, Inc.; Carcast Express, LLC; Adam Yahia, individually, and Primex Logistics, LLC Defendants. C/A No. 2:23-cv-4317 DCN United States District Court, D. South Carolina, Charleston Division Filed February 07, 2025 Stuart, Allyson H., Special Master SPECIAL MASTER'S SUPPLEMENTAL REPORT AND RECOMMENDATION This matter is before the undersigned, sitting as Special Master pursuant to the Order of the United States District Court for the District of South Carolina, Charleston Division, Hon. David C. Norton presiding, dated November 4, 2024, ECF No. 93, on the following motions: (a) Plaintiff Robert Whaley's (“Whaley”)’s Second Motion to Compel Full and Complete Discovery Responses, dated September 6, 2024, ECF No. 100 (“Second MTC”); (b) Plaintiff's Motion for Sanctions, dated September 4, 2024, ECF No. 98; (c) Plaintiff's Third Motion to Compel Full and Complete Discovery Responses, dated December 12, 2024, ECF No. 110 (“Third MTC”); (d) Amazon's[1] Motion for a Protective Order, dated December 20, 2024; and (e) Amazon's Motion to Seal its Motion for a Protective Order, dated December 20, 2024, ECF No. 111.[2] For the reasons set forth below, the special master recommends that the Plaintiff's motion for sanctions be DENIED; that the Plaintiff's Second motion to compel be GRANTED, subject to the limitations provided herein, directing the Amazon Defendants to produce the specified materials on or before February 11, 2025; that the Plaintiff's Third motion to compel be GRANTED, subject to the limitations provided herein, directing the Amazon Defendants to produce the specified materials on or before February 11, 2025; that the Amazon Defendants’ Motion for a Protective Order be DENIED AS MOOT; and the Amazon Defendants’ Motion to Seal be GRANTED. I. BACKGROUND The background of this lawsuit is recounted in two prior opinions of Judge Norton and in the Special Master's January 16, 2025 Report and Recommendation, ECF No. 124 (“the R&R”), familiarity with which is presumed.[3] The discovery disputes began in April 2024, when Plaintiff filed its first motion to compel (ECF No. 38). After further briefing of the parties and a hearing before Judge Norton, the court issued an order on August 2, 2024 (ECF 72). That order set forth the Amazon Defendants’ consent to inclusion and production of information concerning (1) “GRIT” maps for all of Defendant Adam Yahia's (“Yahia”) trips from August 1, 2021 through March 15, 2022; and (2) speeding alerts for Yahia from August 1, 2021 through October 18, 2021. In addition, the court ruled on the Plaintiff's request for documents responsive to Interrogatory (“INT”) No. 37 and Requests for Production (“RFPs”) No. 22-24, 46, and 49, focusing on two categories: (1) safety handbooks, manuals, policies, procedures, or training materials applicable at the time of the Subject Collision relating to speeding or driving too fast for conditions for all Amazon transportation entities; and (2) motor vehicle accidents in South Carolina, Georgia, and Florida for all Amazon transportation entities from January 1, 2021, through April 15, 2022. *2 In its order, the Court required that the Amazon Defendants produce (1) onboarding materials for TOMY drivers applicable at the time of the Subject Collision; and (2) all safety handbooks, manuals, policies, procedures or training materials applicable at the time of the Subject Collision that relate to speeding or driving too fast for conditions for all Amazon transportation entities. As to information about motor vehicle accidents, the court ordered the Amazon Defendants to produce, if available, information about such accidents in South Carolina, Georgia, and Florida for all Amazon transportation entities, including (1) the date of the motor vehicle accident; (2) the name of the Amazon-affiliated driver involved in the motor vehicle accident; (3) the name of the Amazon transportation entity for which the driver was working and/or performing services at the time of the motor vehicle accident; and (4) the cause of the accident. (ECF 72). On September 6, 2024, Plaintiff filed its Second Motion to Compel (ECF No. 100). First, Plaintiff seeks to compel responses to its RFP Nos. 1-9 and 15-16 seeking information about the number of CDL drivers, speeding alerts, and suspensions/terminations from October 19, 2021 through January 4, 2022. Second, Plaintiff seeks responses to its RFP Nos. 17 and 18 concerning Carrier Performance scores, scorecards and metrics from January 1, 2021 through April 5, 2022. Third, Plaintiff seeks responses to its RFP No. 12 and 13 seeking Amazon Transportation Services (“ATS”) safety spreadsheets and claims file documents existing prior to August 22, 2022. Plaintiff also challenges the Amazon Defendants’ assertions of privilege and/or work product, and ask that they produce unredacted versions of documents responsive to its RFP 12 and 13. Finally, Plaintiff asks the Court to impose sanctions as a result of what it characterizes as the Amazon Defendants’ “continual discovery abuse.” 2d M. to Compel at 14 (ECF No. 100). In response to the Second Motion to Compel, the Amazon Defendants object that Plaintiff's RFP Nos. 1-9 and 16-17 are overly broad and unduly burdensome, and that the Plaintiff is demanding that they “create documents or data that does not exist in any searchable or ordinary manner.” Amazon Defs. Mem. In Opp. to P's Second M. to Compel, at 3 (ECF No. 104). As to RFP 17 and 18, Amazon argues that it has complied with this request to the extent these documents exist, and continues to search for the data. As to RFP 12 and 13, concerning ATS safety spreadsheets and claims file documents, Amazon continues to object to providing ATS spreadsheets on the basis of work product, although it has provided information involving lawsuit filings involving claimed bodily injuries for which Amazon was on notice in South Carolina, Georgia, and Florida for its Relay carriers, Opp. at 4, and has supplemented its production in light of Judge Norton's August 2 Order. Amazon continues to object to the production of ATS spreadsheets and claims file documents. In its reply, the Plaintiff's refutes that its requests are overly broad, and instead argues that its requests are narrowly targeted and not difficult to produce. Reply 7-8. Amazon filed a motion for a confidentiality order on April 12, 2024. ECF No. 45. While the parties agreed that entry of a confidentiality order is necessary in this case, they disagree as to what documents should be designated attorney's eyes only (“AEO”). On July 11, 2024, the Court issued an order entering the standard confidentiality order for the District of South Carolina, providing for all the protected documents produced to date be designated as confidential, and directing the Amazon Defendants to specify the documents for which they seek AEO designations. ECF No. 67. On August 1, 2024, the Amazon Defendants notified the Court and parties as to the documents for which it sought to retain AEO designations. Plaintiff filed its Third Amended Notice of Deposition of Amazon Defendants’ 30(b)(6) Corporate Representative on July 24, 2024. The areas of inquiry included 56 topics. On August 12, Amazon's attorneys corresponded with Plaintiff's attorney in an attempt to resolve objections to the topics, including that they lacked reasonable particularity or limitations on scope/date, that they were duplicative, and that they lacked clarity. The parties did not resolve the objections, and Mr. Ryan Sandefur's deposition went forward on August 16, 2024. After the deposition, on September 4, 2024, Plaintiff moved for sanctions, arguing that the witness was not prepared and had not reviewed documents pertaining to the case. The Plaintiff also requested the deposition of Steve Dasgupta, whom Mr. Sandefur identified as his superior. *3 On October 3, Judge Norton held a status conference in the case. There, Plaintiff's attorney orally requested that he be allowed to depose Mr. Dasgupta in light of the alleged deficiencies in Mr. Sandefur's deposition. Amazon's attorney suggested that such a deposition may violate the Apex doctrine, and Judge Norton suggested that Amazon present for deposition a lower level employee instead. The Court orally granted Amazon's motion to seal. ECF 89. That directive was later confirmed by correspondence between the Court and the parties in which counsel was asked to file under seal and in CM/ECF all pending and subsequent motions and their attached documents in order to aggregate the large number of documents that had been transmitted via email, to comport with the Court's standing confidentiality order, and promote centralized efficiency. (Nov. 12, 2024 Email from I. Rodgers). After the status conference, the parties both wrote to Judge Norton seeking clarification of his oral order, and the parties continue to dispute the implication of that order. Amazon asked that it be allowed to respond formally to the Plaintiff's request (Oct. 9 Letter from Mr. Culbreath), while the Plaintiff took the position that he was entitled to depose employees above Mr. Sandefur and beneath Mr. Dasgupta or, failing that, Mr. Dasgupta himself. (Oct. 10, 2024 Letter from Mr. Sloan). On October 22, Amazon filed its opposition to the motion for sanctions, and Plaintiff filed its reply in support of its motion. In an Order filed on November 4, 2024, Judge Norton appointed the undersigned pursuant to Federal Rule of Civil Procedure 43 to serve as a special master over all pre-trial, non-dispositive matters and motions in this case, including those currently pending before the court. ECF 93. On December 12, 2024, Plaintiff filed its Third MTC, asking the Court to order Amazon to respond to its Fourth and Fifth Requests for Production, and to produce all responsive documents and/or information absent confidential or attorneys’ eyes only designations.[4] Amazon has not filed an opposition to the motion, but by email and at the parties’ virtual hearing on January 10, 2025 (“the Jan. 10 Hearing”), counsel set forth the areas on which they have agreed to production and the areas that remain in dispute, as set forth below. The parties and special master participated in a status conference on December 13, 2024 (the “Status Conference”), and participated in the Jan. 10 Hearing, at which the parties attempted to clarify and resolve some of the pending issues. On January 16, I filed the R&R setting forth my recommendation on the pending motions in addition to setting forth the oral agreements made at the Status Conference and the Jan. 10 Hearing. On February 5, 2025, the attorneys for the plaintiff and Amazon participated in a call with the special master to clarify the R&R and provide a status update (“the Feb. 5 Status Update”). Based on that update, I am issuing this supplemental R&R to clarify what issues remain outstanding and my recommendation as to those issues. II. Plaintiff's Second Motion to Compel 1. Number of CDL drivers, speeding alerts, and suspensions/terminations. The parties are in agreement that Amazon has now produced these documents. 2. Performance scores, scorecards, and metrics. The parties are in agreement that Amazon has now produced these documents. 3. ATS safety spreadsheets and claims file documents. Third, Plaintiff seeks to compel the Amazon Defendants to produce responses to Request Nos. 12 and 13, seeking ATS safety spreadsheets and claims file documents pertaining to the Subject Collision and Claim No. AZ202279036. In response, Amazon continues to object to the production of the ATS spreadsheet and claims file documents on the basis of privilege. At the Status Conference, Amazon represented that it would conduct a search for further documents. *4 I recommend that Amazon be ordered to conduct this search and produce responsive documents by February 11, 2025. If Amazon takes the position that any responsive documents are privileged or protected by work product, it should do so as part of its privilege log. In addition to the foregoing issues, Amazon agreed at the Status Conference to continue to search under both carriers’ names to determine whether there are additional GRIT maps. Amazon also agreed to verify that it has produced written policies, speeding policies, and procedure manuals. The parties are in agreement that Amazon has now produced these documents. Finally, Plaintiff seeks to compel responses to its Fifth Set of Requests for Production to Amazon, seeking all click-through or privacy agreements agreed to by Defendant Yahia. At the Jan. 10 Hearing, counsel for Amazon indicated that it could not affirmatively state what agreements were in place when Mr. Yahia was on-boarded. In the R&R I recommend that, if Amazon is unable to locate the agreements Mr. Yahia accepted, Amazon be ordered to produce current agreements that drivers like Mr. Yahia are required to enter into, as well as any agreements Amazon can locate that were entered into by drivers like Mr. Yahia who were on-boarded around that same time. The parties are in agreement that Amazon has now produced these documents. 4. Plaintiff's 4th Request for Production Plaintiffs’ RFP 19 and 20 seek documents relating to the ORCAS progressive speeding policy for DSP drivers and identifying persons responsible for implementing, enforcing, and supervising that policy. In his deposition, Mr. Sandefur testified that Amazon created the ORCAS policy but that it was not applicable to Relay Drivers. 3rd MTC at 13. Amazon's response indicated that it was continuing to supplement its responses to Plaintiffs’ 4th RFP. I recommend that Amazon be ordered to supplement its responses to Plaintiffs’ 4th RFP, including producing documents responsive to RFP 19 and 20, by February 11, 2025. Should the court agree with this recommendation and grant the Second and Third MTC, the Plaintiff is entitled to recover fees associated with making those motions pursuant to Rule 37(a)(5). See Fed. R. Civ. P. 37(a)(5) (“If the motion [to compel] is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.”). III. Plaintiff's Motion for Sanctions Plaintiff seeks sanctions against the Amazon Defendants (the parties themselves, not their counsel) for discovery abuse and failing to comply with a court order. The relief sought by the Plaintiff is (1) to strike the Amazon Defendants’ Amended Answer and all other responsive pleadings and (2) to remove the confidential and/or attorneys’ eyes-only designations on certain documents produced during discovery. Plaintiff complains of the Amazon Defendants’ incomplete responses to its discovery requests and its failure to comply with Judge Norton's August 2, 2024 order granting Plaintiff's first motion to compel and ordering production of specific documents. In addition, Plaintiff complains that Amazon's 30(b)(6) deponent was unprepared. *5 Federal Rule of Civil Procedure 37 contemplates strong sanctions like striking pleadings only in response to failure to comply with a court order. Fed. R. Civ. P. 37(b)(2). That level sanction also requires the application of a four-part test recognized in Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 503–04 (4th Cir.1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 768 (1978). The Wilson test asks “(1) whether the noncomplying party acted in bad faith; (2) the amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to produce; (3) the need for deterrence of the particular sort of noncompliance; and (4) the effectiveness of less drastic sanctions.” Mut. Fed. Sav. & Loan Ass'n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989), citing Wilson at 503–06. Here, some of the conduct of which the Plaintiff complains is not the result of Amazon's failure to comply with a court order, but failure to comply with Rule 30(b)(6) in preparing its deponent. Moreover, Plaintiff has not shown that less drastic sanctions, like monetary sanctions, are unavailable. It provides no precedential support for the sanction of striking confidentiality designations.[5] Plaintiff also fails to show it has been prejudiced by Amazon's non-compliance; instead, it has filed a motion for partial summary judgment, indicating a lack of materiality of evidence that has not been produced. See Mey, 71 F.4th at 220 (the second Wilson factor requires the court to consider “the amount of prejudice [the noncomplying party] caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to produce.”). In addition, some of the Plaintiff's concerns about documents and witnesses are addressed elsewhere in this report in response to its Second MTC and Amazon's motion for a protective order. I therefore recommend that the court deny the motion for sanctions without prejudice to the Plaintiff renewing its motion based on additional noncompliance. IV. Amazon's Motion for a Protective Order After the December 13, 2024 Status Conference, the Plaintiff noticed the deposition of Mr. Steve Dasgupta. On Friday, December 20, 2024, Amazon filed its Motion for a Protective Order (“Amazon's Mot.”), and a Motion to Seal the Motion for a Protective Order. In the R&R, I recommended that Amazon be ordered to produce Mr. Dasgupta for a deposition. The parties have informed me that Mr. Dasgupta's deposition is scheduled for February 12, 2025. Therefore, this issue has been resolved and I recommend that the motion be DENIED AS MOOT. V. Amazon's Motion to Seal Amazon's motion sought to seal its Motion for Protective Order. At the Jan. 10 Hearing, Amazon revised its request to include only Exhibit B to that motion, consisting of deposition testimony of Ryan Sandefur, Amazon's 30(b)(6) deponent. The Plaintiff does not oppose the Motion to Seal. Pursuant to Local Civil Rule 5.03, a party seeking to file documents under seal shall “file and serve a ‘Motion to Seal’ accompanied by a memorandum.” Local Civil Rule 5.03, D.S.C. The memorandum shall: (1) identify, with specificity, the documents or portions thereof for which sealing is requested; (2) state the reasons why sealing is necessary; (3) explain (for each document or group of documents) why less drastic alternatives to sealing will not afford adequate protection; and (4) address the factors governing sealing of documents reflected in controlling case law. E.g., Ashcroft v. Conoco, Inc., 218 F.3d 288 (4th Cir. 2000); and In re Knight Publishing Co., 743 F.2d 231 (4th Cir. 1984). *6 Local Civil Rule 5.03, D.S.C. In addition, pursuant to the Local Rule, “[t]he Clerk shall provide public notice of the Motion to Seal in the manner directed by the Court. Absent direction to the contrary, this may be accomplished by docketing the motion in a manner that discloses its nature as a motion to seal,” Local Civil Rule 5.03, D.S.C. Amazon seeks to seal the exhibit setting forth Mr. Sandefur's deposition based on confidential and proprietary information in that deposition and the exhibits Mr. Sandefur is shown during that deposition. Amazon argues that it is not feasible to redact portions of the deposition because the confidential nature of the testimony and the documents referred to permeates the deposition. Public notice of Amazon's Motion to Seal was provided when the clerk of court placed the motion on the docket. ECF No. 111. Amazon has provided the basis for sealing Mr. Sandefur's deposition, which is replete with references to confidential documents containing proprietary business information. For example, Mr. Sandefur is asked about Relay for Driver data, which Amazon asserts can reveal its proprietary business information and competitively sensitive information, including certain aspects of database architecture. Less drastic alternatives to sealing are not feasible, given the extent of the confidential information in the deposition. See May v. Medtronic, No. CA 6:05-794-HMH, 2006 WL 1328765 (D.S.C. May 15) (“after a review of the traceability records, the court finds that it is not possible to redact the records because it would render them meaningless”); Harrell v. Duke Univ. Health Sys., Inc., C.A. No. 7:07-813-HMH, 2007 WL 4460429 (D.S.C. Dec. 18) (“Given the proprietary and generally sensitive nature of these business documents, there exists no less drastic alternative to retention of the Confidential Materials under seal.”). In addition, sealing the exhibit is consistent with Judge Norton's directive that the parties’ motions and exhibits be filed under seal to comport with its standing confidentiality order and manage future filings. Therefore, I recommend that Amazon's Motion to Seal Exhibit B to its Motion for a Protective Order be GRANTED, and that all future motions and their attached documents be filed under seal. VI. CONCLUSION For the foregoing reasons, the special master recommends that the Plaintiff's motion for sanctions be DENIED; that the Plaintiff's Second motion to compel be GRANTED, subject to the limitations provided herein, directing the Amazon Defendants to produce the specified materials on or before February 11, 2025; that the Plaintiff's Third motion to compel be GRANTED, subject to the limitations provided herein, directing the Amazon Defendants to produce the specified materials on or before February 11, 2025; that the Amazon Defendants’ Motion for a Protective Order be DENIED AS MOOT; that the Amazon Defendants’ Motion to Seal Exhibit B to the Motion for a Protective Order, be GRANTED; that all future motions and their attached documents be filed under seal; and that the Plaintiff be awarded attorneys’ fees and costs associated with the Motions to Compel. THIS RECOMMENDATION AND REPORT IS RESPECTFULLY SUBMITTED. Footnotes [1] Defendants Amazon.com, Inc., Amazon.com Services, LLC, and Amazon Logistics, Inc. are referred to collectively as “Amazon” or the “Amazon Defendants.” [2] Plaintiff has also filed a Motion for Partial Summary Judgment, dated September 20, 2024, ECF No. 99, which will be addressed separately. [3] See Judge Norton's Orders dated July 11, 2024 (ECF No. 67) and August 2, 2024 (ECF No. 72), and the Special Master's Report and Recommendation (ECF No. 124). [4] In its Third MTC, the Plaintiff does not specifically address its request that Amazon retract its confidentiality and/or attorneys’ eyes only designations. To the extent that its argument mirrors that in its Motion for Sanctions, this recommendation addresses the issue there. If there are specific documents Plaintiff seeks to compel absent protective designations on substantive grounds rather than as a sanction, it should so move. [5] The Plaintiff is permitted to challenge the designations as inconsistent with the law, as it does in its Third MTC, but as sanctions I believe they are not warranted.