*1 This matter is before the Court on Plaintiffs’ Motion to Modify the Relevant Time Period for Discovery and to Compel the Clearview Defendants to Respond to Plaintiffs’ Written Discovery [Doc. No. 383]. For the reasons that follow, Plaintiffs’ motion is granted in part and denied in part.

Plaintiffs’ instant motion is directed to Defendants Clearview AI, Inc. (“Clearview”), Hoan Ton-That, Richard Schwartz, Rocky Mountain Data Analytics LLC (“Rocky Mountain”), and Thomas Mulcaire (collectively, the “Clearview Defendants”). Plaintiffs are individuals from Illinois, New York, California, and Virginia who have brought statutory, constitutional, and common law privacy claims on behalf of members of a nationwide class and Illinois, California, New York, and Virginia subclasses. Plaintiffs allege that, without providing notice or obtaining consent, the Clearview Defendants: (a) scraped from the internet three billion photos, including photos of Plaintiffs and class members; (b) scanned the face geometry of each depicted individual to obtain their unique biometric identifiers and information; and (c) created a database to allow third parties to pay a fee to identify unknown individuals by uploading a probe photo for comparison of the biometric data therein to the biometric data in the database. Based on this conduct, Plaintiffs allege that the Clearview Defendants unlawfully obtained, distributed, sold, and otherwise profited from Plaintiffs’ biometric data, while unjustly enriching themselves and otherwise unlawfully invading Plaintiffs’ privacy. One of Plaintiffs’ statutory claims is brought under the Illinois Biometric Information Privacy Act (“BIPA”). Several discovery disputes have arisen and the parties were not able to fully resolve their disputes through the required Local Rule 37.2 procedure. Plaintiffs’ instant motion followed.

Federal Rule of Civil Procedure 26 provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1); see also Fed. R. Civ. P. 34; Fed. R. Civ. P. 37(a)(3)(B). “The party requesting discovery bears the initial burden of establishing its relevancy.” Eternity Mart, Inc. v. Nature's Sources, LLC, No. 19-cv-02436, 2019 U.S. Dist. LEXIS 198880, at *4 (N.D. Ill. Nov. 15, 2019) (citations omitted); see also Art Akiane LLC v. Art & SoulWorks, LLC, No. 19 C 2952, 2020 WL 6509228, at *3 (N.D. Ill. Nov. 5, 2020) (collecting cases). If the requesting party meets its burden, “the party opposing discovery has the burden of proving that the requested discovery should be disallowed.” Sols. Team v. Oak St. Health, MSO, LLC, No. 17 CV 1879, 2021 U.S. Dist. LEXIS 132847, at *7 (N.D. Ill. July 16, 2021) (citation omitted).

I. TIME PERIOD FOR DISCOVERY

*2 This Court previously ruled that, at this stage in the litigation, the overarching time period applicable to discovery in this case is from January 1, 2015 (corresponding to the applicable BIPA statute of limitations) to January 22, 2020 (the date this action was commenced). [Doc. No. 237 at 3-4.] Plaintiffs now request that the Court extend the discovery period from January 22, 2022 through the present. In support of their request, Plaintiffs point to Clearview's Counterclaim filed on March 14, 2022 (after the Court's prior Order) in which Clearview seeks “a declaratory judgment that its current operations are exempt from BIPA” because “Clearview's only licensed users/customers are governmental entities.” [Doc. No. 310 at 89.] Plaintiffs maintain that the filing of the Counterclaim provides a basis to extend the applicable timeframe for all discovery through the present.

The Court agrees with Plaintiffs that, by filing their Counterclaim, the Clearview Defendants have put at issue their current customer relationships and the extent to which such relationships encompass only governmental entities. Accordingly, the Court finds that, as elaborated upon below, Plaintiffs are entitled to targeted discovery concerning the Clearview Defendants’ current customer relationships. Along those lines, the Clearview Defendants have already essentially agreed that Plaintiffs are entitled to propound “targeted requests for specific documents from after the relevant time-period that are relevant to the government contractor exemption defense and counterclaim.” (Defs.’ Resp. at 4.) The Court does not hold, however, that the applicable period for all discovery in this case extends to the present, as it does not see a sufficient reason to depart from its prior ruling as to the governing timeframe.

Plaintiffs also contend that discovery should extend through the present because they “anticipate that their upcoming class certification motion will seek to certify a class covering a time period that extends beyond January 22, 2020 and may extend to the present.” (Pls.’ Mot. at 4.) The Clearview Defendants argue in response that Plaintiffs’ intention in that regard is “based on a single entry on a list of thousands of Clearview users” and this entity “is in fact a government contractor.” (Defs.’ Resp. at 4-5.) The Court takes the Clearview Defendants’ representation in that regard at face value. Accordingly, the Court finds that Plaintiffs’ anticipated class certification motion does not provide grounds for significantly expanding the applicable discovery period.

II. DOCUMENTS CONCERNING THE NAMED PLAINTIFFS

The Court previously compelled the Clearview Defendants to produce all photographs and other data in their possession concerning the named Plaintiffs, along with documents sufficient to identify whether Plaintiffs’ images were used in connection with the “training” of the Clearview Defendants’ technology. [Doc. No. 237 at 6, 10.] Plaintiffs contend that the Clearview Defendants have not complied with this directive and that they “have yet to produce all documents regarding Plaintiffs.” (Pls.’ Mot. at 6.) However, the Clearview Defendants assert that Plaintiffs’ motion on this point is moot because, since the filing of Plaintiffs’ motion, the Clearview Defendants have now “completed their production of documents concerning Plaintiffs.” (Defs.’ Resp. at 5.) As to technology training, the Clearview Defendants further state that they have now produced “any photographs that may have been used to ‘train’ the algorithm.” (Id. at 7.) The Court accepts the Clearview Defendants’ representations in that regard. However, the Court orders the Clearview Defendants to provide Plaintiffs with a verification that their production of documents concerning the named Plaintiffs is fully completed. The Clearview Defendants must provide this attestation within 14 days of this Order.

*3 The Court notes that the Clearview Defendants have conceded that there have been lapses in their productions on two occasions. The Clearview Defendants admit that it was discovered that “certain image files depicting Plaintiffs were inadvertently not produced due to a vendor error” and that thereafter it was discovered that “a small amount of information concerning Plaintiffs was mistakenly not produced.” (Defs.’ Resp. at 6.) The Clearview Defendants represent that they have now produced the information that was inadvertently withheld. Plaintiffs maintain in their reply that the Clearview Defendants still have not produced all documents regarding Plaintiffs. Plaintiff assert that “cross-referencing filenames and MD5 hashes between different data sources” reveals that “Defendants have not produced all of the data for each photo.” (Pls.’ Reply at 2.) The Court believes that the verification the Court has ordered the Clearview Defendants to provide should assuage Plaintiffs’ fears in that respect. In providing the verification, the Clearview Defendants will be swearing that they have produced all data for each photo. The Court cautions the Clearview Defendants that, if they provide a verification that is untrue, they do so at their own peril.

III. DOCUMENTS REGARDING CLEARVIEW'S COUNTERCLAIM

As characterized by Plaintiffs, Clearview's Counterclaim alleges that: (a) its only current licensed users/customers are governmental entities; (b) those licensed users/customers have agreed to certain terms and conditions; and (c) all facial vectors currently in use were created at a time when Clearview acted solely as a government agent. Plaintiffs have propounded documents requests seeking information related to Clearview's Counterclaim. The parties dispute the sufficiency of the Clearview Defendants’ productions concerning Clearview's customer contracts, user accounts, and facial vectors. Plaintiffs contend that the Clearview Defendants have not agreed to produce – or have otherwise failed to produce – all responsive documents.

As to contract documents, the Court generally agrees with Plaintiffs that – in light of Clearview's Counterclaim – the Clearview Defendants are obligated to produce their contracts with the governmental entities, the terms of service for Clearview's work for governmental entities, and documents showing the termination of Clearview's contracts with non-governmental entities. The Court has determined above that the discovery period for such documents extends through the present. The Clearview Defendants state that “they have already agreed to produce” documents “concerning Clearview's contractual arrangements with users” and “have largely completed that production.” (Defs.’ Resp. at 2.) The Clearview Defendants further state that they have now produced Clearview's “terms of service and related documents that limit use of the Clearview App to law enforcement purposes.” (Id. at 11.) Plaintiffs concede in their reply that the Clearview Defendants have now produced various customer contracts. The Court orders the Clearview Defendants to produce any outstanding contract documents within 14 days of this Order. Within the same timeframe, the Clearview Defendants must provide a verification that their production of contract documents is complete.

With respect to user accounts, the Clearview Defendants state that they have produced a “spreadsheet showing every entity that has ever used Clearview's App, the number of searches run by each entity, the date on which each entity last used the Clearview App and reflecting which accounts are disabled and have no active users.” (Id.) Nonetheless, Plaintiffs complain that the Clearview Defendants “have not produced the documents or metadata underlying the summary or documents showing where the data comes from.” (Pls.’ Reply at 9.) The Court finds that the spreadsheet provided by the Clearview Defendants is sufficient to satisfy their discovery obligations regarding user accounts. Accordingly, Plaintiffs’ motion to compel as to user accounts is denied.

With respect to Clearview's use of new facial vectors, the Clearview Defendants state that they have produced an “email showing when Clearview began using its new algorithm, which reflects the use of the new facial vectors.” (Def.’s Resp. at 11.) The Clearview Defendants represent to the Court that “they are not aware of additional documents on this issue.” (Id. at 13.) The Court accepts the Clearview Defendants’ representation in that regard. However, the Clearview Defendants must provide Plaintiffs with a verification as to the completeness of their production concerning new facial vectors within 14 days of this Order.

IV. DOCUMENTS REGARDING AFFIRMATIVE DEFENSES

*4 Plaintiffs assert that the Clearview Defendants “refuse to search for and produce all documents responsive to targeted requests regarding specified affirmative defenses.” (Pls.’ Mot. at 3.) The parties mainly dispute the Clearview Defendants’ discovery obligations relating to their extraterritoriality affirmative defense. In that affirmative defense, the Clearview Defendants assert that “a valid BIPA claim must be based on alleged violations that occurred in Illinois” and “Plaintiffs and the putative class members’ BIPA claims fail because Plaintiffs and the putative class members do not allege that the majority of the conduct giving rise to their claims took place in Illinois.” [Doc. No. 310 at 81.] Relatedly, Plaintiff's Request for Production No. 6 from Plaintiffs’ Fourth Set of Requests for Production asks the Clearview Defendants to produce documents “regarding any acts or conduct performed by you in, or otherwise related to, Illinois, California and/or Virginia.” [Doc. No. 384-8 at 9.] In response to Request for Production No. 6, the Clearview Defendants have only agreed to produce documents “sufficient to show contracts involving third parties in Illinois, California, and/or Virginia; and marketing materials sent to third parties in Illinois, California, and/or Virginia.” [Id. at 10.] The Court agrees with Plaintiffs that the Clearview Defendants’ agreed production in that regard is inadequate. The Court further agrees with Plaintiffs that the Clearview Defendants’ extraterritoriality defense puts at issue their scraping of internet websites in the relevant states; interactions with users/customers in the relevant states; physical activities occurring in the relevant states; and storage of data in the relevant states.

The Clearview Defendants resist further ESI discovery on extraterritoriality, contending that search terms like “California” and “Illinois” have “tens of thousands of document hits ... and would be extremely burdensome to review.” (Defs.’ Resp. at 9.) As an initial matter, as Plaintiffs point out, the fact that the searches have retrieved so many hits for Illinois and California may belie the Clearview Defendants’ contention that they had limited conduct in those states. Furthermore, and in any event, the Clearview Defendants have not made any particular showing as to burden, aside from pointing to the number of hits. In previously ruling on the Clearview Defendants’ motion to dismiss, the Court noted that “the application of the extraterritoriality doctrine is a fact intense inquiry.” [Doc. No. 279 at 6.] Given the fact-intensive nature of the Clearview Defendants’ extraterritoriality defense and the fact that this is a complex MDL proceeding, the Court finds that reviewing “tens of thousands of documents” is not unreasonable. Accordingly, to the extent the Clearview Defendants intend to stand by their extraterritoriality defense, the Clearview Defendants must run ESI searches using the relevant state names as search terms and produce documents responsive to Plaintiffs’ Request for Production No. 6. The Clearview Defendants must complete their production of such documents by September 26, 2022. The applicable discovery period is from January 1, 2015 to January 22, 2020, as previously ordered.

Plaintiffs also dispute the sufficiency of the Clearview Defendants’ document productions in relation to their ratification affirmative defense, in which the Clearview Defendants assert that Plaintiffs “ratified, acquiesced to, [and] approved” the use of their photos by “posting them on the public Internet for anyone to view and collect.” [Doc. No. 310 at 85-86.] As to the ratification defense, the Clearview Defendants state that they “had already agreed to provide all documents concerning Plaintiffs” and “have already searched for and produced documents responsive to these requests.” (Defs.’ Resp. at 14.) The Court finds that producing all documents regarding the named Plaintiffs – which the Clearview Defendants have been ordered to do in a verified fashion – will satisfy the Clearview Defendants’ discovery obligations in relation to their ratification defense. Plaintiffs’ motion also touches upon the Clearview Defendants’ Tenth (good faith) and Thirteenth (acts of others) affirmative defenses. However, the Clearview Defendants have stated – and the Court accepts – that they “have already produced all non-privileged, relevant documents and communications related to” those affirmative defenses. [Doc. No. 384-8 at 14.] Accordingly, Plaintiffs’ motion to compel is denied as to the Clearview Defendants’ defenses of ratification, good faith, and acts of others.

V. DOCUMENTS REGARDING ENGINEERS

Plaintiffs assert that the Clearview Defendants “have failed to produce the documents of key engineering staff.” (Pls.’ Mot. at 3.) In particular, Plaintiffs complain that the Clearview Defendants have refused to use ESI search terms proposed by Plaintiffs with respect to three members of Clearview's engineering staff. However, Plaintiffs concede that the Clearview Defendants have agreed to use all but two of the ESI search terms proposed by Plaintiffs. Indeed, the Clearview Defendants “accepted 25 of the 27 [search] terms with no changes and agreed to review thousands of additional documents based on these terms.” (Defs.’ Resp. at 10.) The Clearview Defendants resist running the search terms “API” (application programming interface) and “database,” because “they are generic words that returned a large volume of data that the Clearview Defendants reasonably believed was not likely to be relevant to the litigation.” (Id.) The Court agrees with the Clearview Defendants that the terms “API” and “database” are overly broad. However, the Court holds that the Clearview Defendants must produce responsive documents retrieved through the 25 agreed-upon search terms within 14 days of this Order, consistent with their representation that they “will produce [the engineer] custodians’ documents.” (Id. at 10.) The Clearview Defendants must also provide a verification that their production of such documents is complete.

VI. ELECTRONICALLY STORED INFORMATION GENERALLY

*5 Plaintiffs broadly maintain that the Clearview Defendants “largely refuse to search for and produce responsive ESI” and similarly broadly request that the Clearview Defendants be compelled to “search for and produce responsive ESI.” (Pls.’ Mot. at 3.) The Court agrees with the Clearview Defendants that Plaintiffs’ request for relief in that regard must be denied as overly vague. Plaintiffs clarify only in a footnote that they “seek production of ESI related to the specific requests for which Plaintiffs seek to compel responses.” (Id. at 6 n.5.) The Court has addressed ESI issues above as appropriate. The Court will not grant independent relief based on Plaintiffs’ broad request for an order generally compelling additional ESI productions.

VII. PRIVILEGE ISSUES

Finally, Plaintiffs maintain that the Clearview Defendants have improperly withheld a small number of documents on the basis of privilege. Plaintiffs take issue with three of the entries on the Clearview Defendants’ amended privilege log. Entry 4 asserts attorney-client privilege over a “[d]ocument attached to the above privileged email re Clearview's potential patents sent to outside counsel for purposes of seeking legal advice.” (Pls.’ Mot. at 14.) As to entry 4, Plaintiffs complain that the log fails to describe the privileged nature of the attachment. However, the Clearview Defendants respond that “the document in Line 4 is independently privileged” because “Line 3 – the email to which Line 4 is attached – identified the outside counsel who received the privileged attachment and describes the email as one to ‘outside counsel seeking legal advice re Clearview's patent applications with one privileged attachment.’ ” (Defs.’ Resp. at 15 (emphasis in original).) The Court finds that the privilege log as a whole sufficiently sets forth the privileged nature of the disputed attachment, when entries 3 and 4 are read in conjunction. Accordingly, Plaintiffs’ motion to compel as to entry 4 is denied.

Plaintiffs also take issue with entries 75 and 76. Those entries refer to two e-mails dated January 22, 2020 received by Richard Schwartz and Jack Mulcaire, described as e-mails “to inside counsel seeking legal advice re pending litigation.” (Pls.’ Mot. at 14.) Plaintiffs contend that neither Schwartz nor Mulcaire were Clearview's “inside counsel” as of January 2020 because Schwartz is Clearview's President and Mulcaire was not sworn in as an attorney until March 2020 (at which point he became Clearview's General Counsel). Though the privilege log asserts attorney-client privilege, the Clearview Defendants argue that “these documents were prepared by employees of Clearview concerning pending litigation against Clearview” such that “they are work product and need not be produced.” (Defs.’ Resp. at 15.) Notably, the e-mails are dated as of the day this litigation was commenced. The Clearview Defendants point out that Rule 26 protects from disclosure “documents and tangible things that are prepared in anticipation of litigation ... by or for another party or its representative.” Fed. R. Civ. P. 26(b)(3)(A). Ultimately, the Court agrees with the Clearview Defendants that the e-mails – assertedly prepared by employees of Clearview concerning pending litigation – are protected from disclosure as work product. Accordingly, Plaintiffs’ motion to compel as to entries 75 and 76 is also denied.

For the foregoing reasons, Plaintiffs’ Motion to Modify the Relevant Time Period for Discovery and to Compel the Clearview Defendants to Respond to Plaintiffs’ Written Discovery [Doc. No. 383] is granted in part and denied in part as specified herein.

SO ORDERED.