Case: 1:21-cv-00135 Document #: 139 Filed: 07/23/21 Page 1 of 5 PageID #:3197
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`In re: Clearview AI, Inc. Consumer Privacy
`Litigation
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Civil Action File No.: 1:21-cv-00135
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`Judge Sharon Johnson Coleman
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`Magistrate Judge Maria Valdez
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`PLAINTIFFS’ MOTION TO COMPEL DEFENDANT MACY’S, INC. TO PROVIDE
`RULE 26(a)(1) DISCLOSURES AND DISCOVERY RESPONSES
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`Pursuant to Federal Rules of Civil Procedure 26 and 37, Plaintiffs, by and through
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`appointed interim lead class counsel, respectfully move the Court to compel Defendant Macy’s,
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`Inc.1 to provide its Federal Rule of Civil Procedure 26(a)(1) Disclosures and responses to
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`Plaintiffs’ written discovery. In support of this motion, Plaintiffs state as follows:
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`1.
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`Macy’s is one of several defendants in this consolidated multidistrict litigation
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`arising out of the unlawful collection and use of Plaintiffs’ and millions of class members’ sensitive
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`biometric data.
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`2.
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`On March 24, 2021, the Court ordered Plaintiffs to file their consolidated complaint
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`on or before April 9, 2021. Dkt. 28. The Court further ordered that “Rule 26 disclosures are due
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`on or before May 7, 2021,” and set the fact discovery deadline as January 26, 2022. Id.
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`1 Plaintiffs’ Consolidated Class Action Complaint named “Macy’s, Inc.” as the defendant in the
`introductory paragraph but later referred to “Macy’s Retail Holdings, Inc.” See Dkt. 29 at 1 and 5 ¶ 18.
`Plaintiffs’ served process on Macy’s Retail Holdings, Inc. and Macy’s, Inc. on April 15, 2021 and June 7,
`2021, respectively. Plaintiffs have since corrected the discrepancy in the complaint and clarified in a First
`Amended Consolidated Class Action Complaint that the properly-named defendant is Macy’s, Inc. See Dkt.
`109 at ¶ 6, Dkt. 116. Plaintiffs refer to the Macy’s entities as “Macy’s.”
`1
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`
`
`In re: Clearview AI, Inc. Consumer Privacy
`Litigation
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`Civil Action File No.: 1:21-cv-00135
`
`Judge Sharon Johnson Coleman
`
`Magistrate Judge Maria Valdez
`
`
`
`
`
`PLAINTIFFS’ MOTION TO COMPEL DEFENDANT MACY’S, INC. TO PROVIDE
`RULE 26(a)(1) DISCLOSURES AND DISCOVERY RESPONSES
`
`Pursuant to Federal Rules of Civil Procedure 26 and 37, Plaintiffs, by and through
`
`
`
`appointed interim lead class counsel, respectfully move the Court to compel Defendant Macy’s,
`
`Inc.1 to provide its Federal Rule of Civil Procedure 26(a)(1) Disclosures and responses to
`
`Plaintiffs’ written discovery. In support of this motion, Plaintiffs state as follows:
`
`1.
`
`Macy’s is one of several defendants in this consolidated multidistrict litigation
`
`arising out of the unlawful collection and use of Plaintiffs’ and millions of class members’ sensitive
`
`biometric data.
`
`2.
`
`On March 24, 2021, the Court ordered Plaintiffs to file their consolidated complaint
`
`on or before April 9, 2021. Dkt. 28. The Court further ordered that “Rule 26 disclosures are due
`
`on or before May 7, 2021,” and set the fact discovery deadline as January 26, 2022. Id.
`
`
`1 Plaintiffs’ Consolidated Class Action Complaint named “Macy’s, Inc.” as the defendant in the
`introductory paragraph but later referred to “Macy’s Retail Holdings, Inc.” See Dkt. 29 at 1 and 5 ¶ 18.
`Plaintiffs’ served process on Macy’s Retail Holdings, Inc. and Macy’s, Inc. on April 15, 2021 and June 7,
`2021, respectively. Plaintiffs have since corrected the discrepancy in the complaint and clarified in a First
`Amended Consolidated Class Action Complaint that the properly-named defendant is Macy’s, Inc. See Dkt.
`109 at ¶ 6, Dkt. 116. Plaintiffs refer to the Macy’s entities as “Macy’s.”
`1
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`Case: 1:21-cv-00135 Document #: 139 Filed: 07/23/21 Page 2 of 5 PageID #:3198
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`3.
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`On April 9, 2021, Plaintiffs filed their Consolidated Class Action Complaint (the
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`“Consolidated Complaint”) against Macy’s and another group of defendants referred to herein as
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`the “Clearview Defendants.”
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`4.
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`In violation of the Court’s March 24, 2021 Order, Macy’s did not serve its Rule
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`26(a)(1) disclosures on or before May 7, 2021.
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`5.
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`On May 24, 2021, Plaintiffs served on all defendants “Plaintiffs’ First Set of
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`Interrogatories to All Defendants” (the “Interrogatories”) and “Plaintiffs’ First Set of Requests for
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`Production to All Defendants”2 (the “Requests for Production”). By operation of Federal Rules of
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`Civil Procedure 33 and 34, defendants’ responses were due on June 23, 2021. See Fed. R. Civ. P.
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`33(b)(2), 34(b)(2)(A).
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`6.
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`Macy’s did not respond to Plaintiffs’ written discovery prior to June 23, 2021 and
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`still has not responded.
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`7.
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`During a telephone conference on June 16, 2021, prior to Macy’s discovery
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`responses coming due, the parties discussed Macy’s failure to provide Rule 26(a)(1) disclosures
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`and the upcoming due date for its discovery responses. See Exhibit 1 (Drury-Saeedi email chain.
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`During the telephone conference, Macy’s counsel stated that discovery had not yet commenced
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`against Macy’s because the parties had not yet had a Rule 26(f) conference. See id. Plaintiffs’
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`counsel disagreed with Macy’s position and referred to the Court’s March 24, 2021 Order. See id.
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`Plaintiffs’ counsel offered to provide Macy’s with an extension to the discovery due date, but
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`Macy’s did not request an extension. See id.
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`2 The written discovery referred to the Macy’s defendant as “Macy’s Retail Holdings, Inc.”
`2
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`Case: 1:21-cv-00135 Document #: 139 Filed: 07/23/21 Page 3 of 5 PageID #:3199
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`8.
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`In follow-up correspondence, Macy’s counsel stated that he believed the discovery
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`issues could be worked out at a Rule 26(f) conference. See id. The parties scheduled a follow-up
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`call on June 24, 2021. See id.
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`9.
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`On June 24, 2021, counsel for Plaintiffs and Macy’s met and conferred pursuant to
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`Local Rule 37.2 regarding Macy’s refusal to provide its Rule 26(a)(1) disclosures or responses to
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`Plaintiffs’ written discovery, in clear violation of the Court’s March 24, 2021 discovery order.3
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`See Exhibit 2 (July 21, 2021 Drury email).
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`10.
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`During the June 24, 2021 meet and confer, Macy’s changed its position and stated
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`that it did not believe it had to satisfy its discovery obligations because it was going to file a motion
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`to dismiss. See id. Plaintiffs advised that the Court’s March 24, 2021 Order did not permit a party
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`to unilaterally stay discovery by filing a motion to dismiss. See id. Plaintiffs further pointed out
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`that the Clearview Defendants had filed a motion to dismiss (Dkt. 87), yet they had served their
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`Rule 26(a)(1) disclosures and provided responses to Plaintiffs’ discovery requests. See Ex. 2.
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`Macy’s continued to refuse to comply with its discovery obligations, and the parties reached
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`impasse. See id.
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`11.
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`Discovery in this case is ongoing and has not been stayed as to any defendant. The
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`Court’s March 24, 2021 Order as to discovery makes no exceptions for motions to dismiss.
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`12. Moreover, Macy’s has not sought a protective order or any other relief from the
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`Court regarding its discovery obligations. Its self-help to a de facto stay of discovery is improper.
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`Accordingly, the Court should order Macy’s to serve its Rule 26(a)(1) disclosures and responses
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`3 Plaintiffs’ counsel did not believe a Rule 26(f) conference was needed and, therefore, treated the meeting
`as a LR 37.2 meet and confer.
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`3
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`Case: 1:21-cv-00135 Document #: 139 Filed: 07/23/21 Page 4 of 5 PageID #:3200
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`to Plaintiffs’ Interrogatories and Requests for Production within seven days of the entry of such
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`order.
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`WHEREFORE, the Court should enter an Order: (a) directing Macy’s to serve its Rule
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`26(a)(1) disclosures and responses to Plaintiffs’ Interrogatories and Requests for Production within
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`seven days of the entry of such order; and (b) providing any other just and equitable relief.
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`Dated: July 23, 2021
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`By:
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`Respectfully submitted,
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`/s/ Scott R. Drury
`SCOTT R. DRURY
`Interim Lead Class Counsel for Plaintiffs
`
`
`Mike Kanovitz
`Scott R. Drury
`Andrew Miller
`LOEVY & LOEVY
`311 N. Aberdeen, 3rd Floor
`Chicago, Illinois 60607
`312.243.5900
`drury@loevy.com
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`Scott A. Bursor
`Joshua D. Arisohn
`BURSOR & FISHER, P.A.
`888 Seventh Avenue
`New York, NY 10019
`646.837.7150
`scott@bursor.com
`jarisohn@bursor.com
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`Frank S. Hedin (to be admitted pro hac vice)
`HEDIN HALL LLP
`Four Embarcadero Center, Suite 1400
`San Francisco, California 94104
`415.766.3534
`fhedin@hedinhall.com
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`4
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`Case: 1:21-cv-00135 Document #: 139 Filed: 07/23/21 Page 5 of 5 PageID #:3201
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`Michael Drew
`NEIGHBORHOOD LEGAL LLC
`20 N. Clark Street #3300
`Chicago, Illinois 60602
`312.967.7220
`mwd@neighborhood-legal.com
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`Michael Wood
`Celetha Chatman
`COMMUNITY LAWYERS LLC
`20 N. Clark Street, Suite 3100
`Chicago, Illinois 60602
`312.757.1880
`mwood@communitylawyersgroup.com
`cchatman@communitylawyersgroup.com
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`Steven T. Webster
`Aaron S. Book
`WEBSTER BOOKK LLP
`300 N. Washington, Ste. 404
`Alexandria, Virginia 22314
`888.987.9991
`swebster@websterbook.com
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`Other Counsel for Plaintiffs
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`CERTIFICATE OF SERVICE
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`I, Scott R. Drury, an attorney, hereby certify that, on July 23, 2021, I filed the foregoing
`document using the Court’s CM/ECF system, which effected service on all counsel of record.
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`/s/ Scott R. Drury
`Interim Lead Class Counsel for Plaintiffs
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`5
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