Facebook Disputes ‘Eleventh Hour’ Discovery in Biometric Class Action

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On Wednesday, Facebook contested plaintiffs’ request to conduct further discovery in a consolidated class action lawsuit that accuses the social media giant’s face-tagging feature of violating Illinois’ Biometric Information Privacy Act. Facebook urged the court to deny the plaintiff’s request on grounds that their bid improperly comes at the “eleventh hour.”

According to court documents, the plaintiffs have called for documents involving source code relevant to sign-up pages. Facebook argues that this last minute request is not in line with the court’s standing orders and local rules.

Facebook contends that the court set specific requirements for civil discovery procedures and resolution of discovery disputes, stating that the parties must “meet and confer; if the dispute is not resolved, the party seeking relief must file with the Court a three-page letter summarizing the dispute.”

“Plaintiffs did not meet and confer with Facebook about this dispute,” Facebook argued. “Nor did they seek to compel the production of any additional discovery, through a letter or otherwise.”

Additionally, Facebook maintains the plaintiffs purposely waited to request more discovery until the day before a scheduled hearing over the company’s motion to dismiss, stating the plaintiffs had over three weeks to initiate the request.

Plaintiffs Nimesh Patel, Carlo Licata, and Adam Pezen filed the consolidated lawsuit on behalf of an entire class of 1 billion Facebook users, accusing the social media giant of infringing on the privacy of its users by collecting their facial data without proper permission, a violation of the Illinois Biometric Information Privacy Act (BIPA).

The “Biometric Information Privacy Act” requires companies to get written consent from a user if it is collecting biometric data. The plaintiffs argue that Facebook does not properly seek permission for biometric data collection.

“Facebook conceals that Tag Suggestions uses proprietary facial recognition software to extract from user-uploaded photographs the unique biometric identifiers (i.e., graphical representations of facial features, also knows as facial geometry) associated with people’s faces and identify who they are,” the plaintiffs allege.

Facebook filed a motion to dismiss back in October, arguing that photographs are not biometric identifiers or biometric information within the meaning of the BIPA. Facebook also pointed out that the face-tagging feature could be disabled, which deletes the data used to suggest tags of other people.

Just last month, Facebook pleaded with the court to toss the class action lawsuit, saying that its users agreed to its terms of use, including a California choice-of-law provision. In the brief, Facebook held that plaintiffs’ suit lack merit because “California law applies to any users’ disputes with Facebook, precluding them from bringing claims under other states’ laws.”

“Plaintiffs have failed to offer any evidence suggesting that they could have avoided Facebook’s routine business practice of requiring all individuals who register for an account to agree to Facebook’s terms,” the company said. “And because plaintiffs accepted the terms, this case is over.”

The plaintiffs are represented by Paul Jeffrey Geller, Frank Anthony Richter, Mark Dearman, Shawn A. Williams, Stuart Andrew Davidson and James E Barz of Robbins Geller Rudman & Dowd LLP, Jay Edelson, J. Dominick Larry and Alexander Nguyen of Edelson PC, and Corban S. Rhodes, Joel H. Bernstein and Ross M. Kamhi of Labaton Sucharow LLP.

The Facebook Biometric Face Tagging Class Action Lawsuit is In re: Facebook Biometric Information Privacy Litigation, Case No. 3:15-cv-03747, in the U.S. District Court for the Northern District of California.

UPDATE: On May 5, 2016, a California judge ruled that it is necessary to apply Illinois’ Biometric Data Privacy Act to a class action lawsuit involving Facebook’s facial recognition and tagging features, even though Facebook users had agreed to a choice-of-law provision.

UPDATE 2: On Aug. 25, 2016, in its latest motion to dismiss the case, Facebook argued that users have not established how Facebook’s use of their biometric data lowers the value of users’ facial recognition data.

UPDATE 3: On Sept. 28, 2017, Facebook filed a motion for dismissal in a California federal court, arguing that the plaintiffs suing Facebook have failed to allege any actual harm resulted from the company’s use of facial recognition technology.

UPDATE 4: On Jan. 26, 2018, Facebook tried to shake claims in two Facebook biometric class action lawsuits. They argued that the plaintiffs failed to show that any “common harm” had been inflicted on a group of individuals because of Facebook’s practice of storing facial scans.

UPDATE 5: On March 16, 2018, Facebook Inc. filed motions for summary judgment in a bid to end two putative class action lawsuits accusing the social network of unlawfully using facial-recognition technology to collect users’ biometric data without their consent.

UPDATE 6: On April 16, 2018, Facebook users have been granted Class certification in a lawsuit claiming the company unlawfully collects facial recognition data.

UPDATE 7: On Jan. 21, 2020, the Supreme Court decided not to hear Facebook’s appeal in a class action lawsuit filed by Facebook users who claim that the social media giant violated Illinois privacy laws by using facial recognition software.

UPDATE 8: On Jan. 30, 2020, Facebook reached a $550 million settlement with consumers who claim that the social media giant violated Illinois’ Biometric Information Privacy Act by using facial recognition on users’ photos without their consent.