Vance v. IBM Corp.
Vance v. IBM Corp.
2022 WL 22876434 (N.D. Ill. 2022)
May 24, 2022

Fuentes, Gabriel A.,  United States Magistrate Judge

30(b)(6) corporate designee
Failure to Produce
Proportionality
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Summary
The plaintiffs allege that the defendant, IBM, deleted or destroyed relevant ESI related to their facial recognition products after being sued for violating the Illinois Biometric Privacy Act. The court has allowed for proportional discovery into whether IBM used this information to improve their products.
STEVEN VANCE and TIM JANECZYK, Plaintiffs,
v.
INTERNATIONAL BUSINESS MACHINES CORP., Defendant
Case No. 20 C 577
United States District Court, N.D. Illinois, Eastern Division
Filed: May 24, 2022
Fuentes, Gabriel A., United States Magistrate Judge

ORDER

*1 With this matter coming before the Court on referral for discovery supervision (D.E. 105, 106), before the Court is the Amended Third Motion to Compel (“Motion”; D.E. 149) by Plaintiffs Steven Vance and Tom Janeczyk (“Plaintiffs”). The backdrop for the Court's analysis of the Motion is Fed. R. Civ. P. 26(b)(1) and its prescribed discovery scope as including matters broadly relevant to any claim or defense, and proportional to the needs of the case. Our decision on the Motion is an exercise of the magistrate judge's broad discretion to manage discovery, Jones v. City of Elkhart, Ind., 737 F.3d 1107, 1115 (7th Cir. 2013), with the goal of promoting the just, speedy, and inexpensive determination of this matter. Fed. R. Civ. P. 1.
BACKGROUND
As the Court set forth previously (10/26/21 Order; D.E. 127), this matter is a putative class action invoking federal diversity jurisdiction and alleging violation of the Illinois Biometric Privacy Act (“BIPA”), 740 ILCS § 14/1 et seq. For the sake of clarity, we reiterate the factual summary here: Plaintiffs had accounts with a photo-sharing service known as Flickr and uploaded photos of themselves and/or their family members to the service; Vance claims he did so in 2008, and Janeczyk claims he did do in 2011. 9/15/20 Memorandum Opinion, D.E. 48 at 2. Yahoo!, Flickr's parent company at the time, subsequently made Vance's photo available to defendant International Business Machines Corp. (“IBM”) in 2014 when it released over 99 million photos in a single, downloadable dataset (“Flickr Dataset”), and Plaintiffs allege that IBM used the Flickr Dataset to create its own dataset (the “IBM Dataset”) comprised of more than one million front-facing images of human faces. Id. at 2. From each image, IBM allegedly extracted 68 key-points and at least 10 facial coding schemes, such as craniofacial distances, craniofacial areas, craniofacial ratios, facial symmetry, facial regions contrast, skin color, age prediction, gender prediction, subjective annotation, and pose and resolution. Id. Plaintiffs allege that from the IBM Dataset, IBM extracted information to create another dataset that it labeled “Diversity in Faces” (“DiF Dataset”) and then disseminated. Id. Each image in the DiF Dataset could allegedly be traced back to the individual Flickr account to which it was originally uploaded. Id. Based on these facts, Plaintiffs filed the instant class action complaint alleging various BIPA-related claims and two other state-law claims. Id. at 3. After the district court ruled on IBM's motion to dismiss, id., Plaintiffs filed a Third Amended Complaint (D.E. 63) pleading BIPA claims including counts relating to IBM's alleged collection, sale, dissemination and data storage or protection practices, along with an unjust enrichment claim and a claim pleaded as negligent spoliation of evidence. These claims, as broadly described, survived another motion to dismiss. (D.E. 111.) The spoliation count, Count VIII, alleges that after IBM knew of the lawsuit over the DiF Dataset, IBM deleted, destroyed or discarded relevant electronically stored information (“ESI”) including an email account concerning the DiF Dataset and work related to it (“the DiF Email Account”), along with a hard drive storing the Flickr Dataset. Id. ¶ ¶ 158-74. IBM answered the Third Amended Complaint on September 14, 2021. (D.E. 119.)
*2 On October 26, 2021, the Court decided Plaintiffs’ first (D.E. 73) and second (D.E. 92) motions to compel in a 22-page order. In short, the key aspects of the October 26 order, for purposes of the current Motion, are as follows, in broad brush strokes:
• Without resolving whether IBM developed the DiF Dataset for commercial purposes as well as research, the Court allowed Plaintiffs proportional discovery into that question, as in whether IBM used the DiF Dataset and related research to improve, develop, or somehow affect IBM commercial facial recognition products.
• The Court declined IBM's invitation to limit the scope of certain of Plaintiffs’ document requests to cover only the DiF Dataset. The Court construed the requests as covering any facial recognition dataset in which IBM was involved in conceiving, proposing, developing, or abandoning, during a three-year time frame between 2017 and 2020.
• The Court denied Plaintiffs discovery into what it saw as the overbroad concept of how IBM “monetized” its facial recognition products “for the purpose of at least” Document Request No. 66, which was directed broadly at “monetization” of these products. The October 26 Order did not state that the Court was precluding more specific discovery into matters such as sales and revenue, if proportional to the needs of the case. The Court in fact stated explicitly that to the extent that the DiF Database did relate to IBM facial recognition product development, “documents relating to the ‘monetization’ of that research would be discoverable,” although that issue was not yet before the Court.
• The Court disagreed with Plaintiffs’ view that IBM's failure to log a set of purportedly privileged spoliation-related documents (made potentially discoverable by the Count VIII spoliation allegations) ought to result in a broad waiver of IBM's privilege claims. The Court ordered IBM to log withheld documents based on privilege as to a specific set of factual issues detailed in the order, but not including privileged communications about how the deletions or spoliation impacted the litigation, about litigation tactics or strategy IBM might have developed or considered around those issues or about other matters the Court described as within “the heartland” of privileged communications the Court might expect in a complex lawsuit such as this. The Court ordered IBM to produce non-privileged documents responsive to Plaintiffs’ spoliation-related Rule 34 document requests, even including documents dated after the filing of the lawsuit, insofar as Plaintiffs were alleging that spoliation occurred after that date.
• The Court broadly required identification of persons with knowledge of the spoliation matters, including inside and outside counsel involved in creating and distributing the relevant Document Retention Order (“DRO”), without resolving the extent to which any counsel could be called as witnesses in the case, and while leaving the parties to resolve how Plaintiffs might conduct their spoliation-related discovery in a relevant, proportional, and non-harassing manner.
Plaintiffs are back before the Court with their current Motion, which seeks to compel certain Rule 30(b)(6) subject matter topics and certain written discovery issues. The Court will address the issues in the Motion below.
DISCUSSION
Rule 30(b)(6) Topics
*3 Once again, IBM claims that discovery of matters concerning commercial use of the DiF Database ought to be off-limits because, according to IBM, the database was used only for research purposes. IBM's Opposition to Plaintiffs’ Third Motion to Compel (“Opp.”; D.E. 153) at 12. The Court rejected IBM's argument in October 2021 and rejects it again now. Plaintiffs may still have discovery into whether this database – or whether the WVR, DIVA, and IVA products or services, if they may be so called – was used for purposes other than research, and whether it played a role in facial recognition product development. The topics describe the subject matter with reasonable particularity, although the Court is limiting them to the DiF Database and the foregoing three alphabetically identified subject matters, because “including” or “including but not limited to” does not describe the subject matters with reasonable particularity. As to Topic 3, the Court did not intend its limitation on discovery into “monetization” to be construed as broadly as IBM suggests. The Court finds that the term “sales data and revenue” attributable to the DiF Database, WVA, DIVA, and IVA is reasonably particular and discoverable under the rule.
The Motion is partially granted and partially denied, as stated above, as to Topic Nos. 1-4, 10 and 14.
In resisting these subject matter topics touching on spoliation of evidence, IBM also is taking a second run at shutting down the discovery on the ground that it is harassing and unnecessarily invasive of attorney-client privilege. Opp. at 3-11. The Court disagrees with that proposition but rejects Plaintiffs’ claims that by producing certain emails between two non-attorney witnesses (Ratha and Norris, see Motion at 12), IBM effected a subject-matter waiver of its privilege claims surrounding document spoliation as to the VIX Drive and DROs.
A primary objection of IBM to these Rule 30(b)(6) subject-matter topics is that according to IBM, they require counsel to testify, or that Plaintiffs are using them to pressure IBM to produce an attorney witness. Id. at 3. Plaintiffs deny doing so. Plaintiffs’ Reply in Support of Their Amended Third Motion to Compel (“Reply”; D.E. 156) at 9. But the point here is that Rule 30(b)(6) does not require any specific person, including any attorney, to be designated as the representative deponent of an organization. The Rule does not require a corporation served with a Rule 30(b)(6) notice to produce the most knowledgeable person on any topic. The corporation can designate anyone to be the deponent, even a non-employee, if it wishes – the Rule requires the corporation, though, to educate the representative deponent adequately enough to answer the questions. The Court again appreciates how IBM is frustrated at having to answer deposition questions, including any about counsel's involvement, concerning spoliation after the initiation of this litigation. It is an uncomfortable topic for any party and its counsel. But Plaintiffs may have Rule 30(b)(6) discovery into this topic. IBM is not required to designate counsel as a witness. IBM presumably will prepare the witness it designates not to disclose privileged communications (although the underlying facts themselves will not be privileged, even if communicated to the representative deponent during counsel's preparation of that witness), and IBM's counsel presumably will object and instruct appropriately at the depositions if questions elicit disclosure of privileged communications. The Court does not see counsel's potential involvement (or lack thereof, whatever the case may be) in the spoliation to cut off Rule 30(b)(6) discovery into what involvement counsel may have had. Only privileged communications are protected from discovery, and not Rule 30(b)(6) discovery into the spoliation allegations or dissemination of DROs. The parties will need to tread carefully, because some of the topics might seem to call for discovery of privileged information (such as Topic No. 15(f), i.e., the investigation IBM conducted into breach of any DRO). But the parties and their skilled counsel are well able to navigate the line between relevant and proportional spoliation discovery and disclosure of attorney-client privileged communications.
*4 As for subject-matter waiver, the Court does not see IBM's disclosure of the communications in question, even though this occurred on the eve of the deposition of witness Norris and referred to “guidelines from legal,” as sufficient to give rise to subject-matter privilege waiver. No specific content of attorney-client communication was revealed by those emails. See Motorola Sols. Inc. v. Hytera Commc'ns Corp., No. 17 C 1973, 2019 WL 2774126, at *3 (N.D. Ill. July 2, 2019) (“The attorney-client privilege is not waived “ ‘merely by disclosing a subject which [the client] had discussed with his attorney.’ ... In order to waive the privilege, the client must disclose the communication with the attorney.”), quoting United States v. O'Malley, 786 F.2d 786, 794 (7th Cir. 1986).
The Motion is granted as to Topic Nos. 15 and 18.
The topic of compliance with BIPA is at the heart of this lawsuit, so Plaintiffs should be expected to seek discovery on IBM's procedures and steps for compliance. But the Court envisioned what counsel would have to do in preparing a Rule 30(b)(6) witness for deposition on IBM's “knowledge of” BIPA and “efforts to comply” with BIPA in connection with the DiF Dataset. The Court wondered how easily that kind of preparation could be undertaken. Topic No. 19, at least, does not describe the subject matter with sufficiently reasonable particularity when it refers to such a broad idea as “knowledge” of BIPA. The Court has a similar problem with IBM's efforts to “safeguard documents and data related to the DiF Dataset Project.” Accordingly, the Court will scale back Topic No. 19 to include only IBM's efforts to secure or ensure the DiF Dataset Project's compliance with BIPA as such compliance relates to the creation, use, distribution, and storage of the DiF Dataset.
Topic No. 21 seeks a Rule 30(b)(6) witness on IBM policies or guidelines concerning BIPA, the California Consumer Privacy Act, and the General Data Protection Regulation, as well as unspecified “other privacy laws that apply to the collection or use of biometric information.” Topic No. 21's description of policies and guidelines concerning the three identified data-related laws or regulations is stated with reasonable particularity, but its reference to unspecified “other privacy laws” is not. Topic No. 21 is thus scaled back to omit unspecified “other privacy laws that apply to the collection or use of biometric information.”
The Motion is partially granted and partially denied, as set forth above, as to Topic Nos. 19 and 21.
Written Discovery
A portion of the Motion addresses written discovery and related document discovery that Plaintiffs contend is incomplete. Motion at 14-15. The Motion is directed at Interrogatory No. 1 of Plaintiff Janeczyk's second set of interrogatories, Document Request No. 2 of Plaintiffs’ third set of document requests, and Interrogatory Nos. 1-5 of Plaintiff Vance's interrogatories. The Court was not persuaded by IBM's arguments that the information sought is outside relevancy for the purposes of discovery, but nor was the Court persuaded by Plaintiffs’ implicit argument that this discovery is proportional at this phase of the case, given the relatively extensive Rule 30(b)(6) discovery that the Court is permitting here. Meanwhile, IBM still is producing additional documents. (D.E. 158.)
The Court denies this aspect of the Motion (seeking additional compelled written discovery responses and documents) without prejudice, as the supplemental interrogatories may prove unnecessary (and disproportionate), and IBM is still producing documents at this writing. Plaintiffs may renew this aspect of the Motion in the event that IBM's supplemental document production gives Plaintiffs a valid basis for claiming that additional, responsive, and non-privileged documents needed for the Rule 30(b)(6) depositions are still being withheld. But IBM ought to do its best to head off further motion practice on this issue. The Court in two separate orders (including this one) has made clear its overall views of the discovery scope in this case, and the end of discovery is drawing near.
CONCLUSION
*5 The Motion is partially granted and partially denied as stated above, for the reasons stated above. The parties are directed to meet and confer (as they have requested, D.E. 158) within seven days of this order to discuss and propose a revised discovery schedule that they should place in a status report to the Court no later than noon on June 3, 2022.
SO ORDERED.