Case: 1:21-cv-00135 Document #: 179 Filed: 09/27/21 Page 1 of 15 PageID #:3632
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`In re: Clearview AI, Inc. Consumer
`Privacy Litigation
`
`
`)
`)
`)
`)
`)
`)
`)
`
`CLEARVIEW DEFENDANTS’ MOTION TO QUASH NONPARTY SUBPOENAS
`
`
`
`Case No. 1:21-cv-00135
`
`Hon. Sharon Johnson Coleman
`
`
`
`Pursuant to Federal Rules of Civil Procedure 26(b)(2) and 45(d)(3), Defendants Clearview
`
`
`
`
`
`
`AI, Inc. (“Clearview”), Rocky Mountain Data Analytics LLC (“Rocky Mountain”), Hoan Ton-
`
`That, Richard Schwartz, and Thomas Mulcaire (collectively, the “Clearview Defendants”), by and
`
`through their counsel, respectfully move this Court for an order quashing the nonparty subpoenas
`
`issued by Plaintiffs to three financial institutions, JPMorgan Chase & Co., JPMorgan Chase Bank
`
`N.A., and The Bank of America Corporation (collectively, the “Banks”).
`
`Plaintiffs have made vast, deeply personal and extremely intrusive document requests to
`
`the Banks regarding the financial histories of Mr. Ton-That (Clearview’s CEO), Mr. Schwartz
`
`(Clearview’s President), and Mr. Mulcaire (Clearview’s General Counsel) (collectively, the
`
`“Individual Defendants”) that serve no purpose related to this litigation, and will result only in
`
`harassment and annoyance to the Individual Defendants and their families. The fact that Plaintiffs
`
`have improperly named the CEO, President, and General Counsel of Clearview as defendants in
`
`this litigation does not mean that Plaintiffs are entitled to such highly confidential information such
`
`as individual tax returns and credit cards statements. The Individual Defendants’ credit card
`
`histories have nothing to do with this case, which centers on Clearview’s allegedly improper
`
`collection of biometric data. Plaintiffs’ abusive discovery tactics should not be tolerated.
`
`1
`
`

`

`Case: 1:21-cv-00135 Document #: 179 Filed: 09/27/21 Page 2 of 15 PageID #:3633
`
`Plaintiffs have also subpoenaed a sweeping array of financial documents related to
`
`Clearview and Rocky Mountain (collectively, the “Entity Defendants”) and various nonparties.
`
`These requests are overbroad and seek irrelevant documents, but regardless, the Clearview
`
`Defendants have already agreed to produce similar financial information in response to Plaintiffs’
`
`discovery requests served through party discovery. For example, Clearview has agreed to produce
`
`tax returns, bank account statements, annual statements, business valuations, and other similar
`
`documents. There is no reason for expansive and unnecessary nonparty discovery of a wide variety
`
`of irrelevant documents, or duplicative productions of the same documents that will be produced
`
`in party discovery.
`
`Accordingly, the Clearview Defendants respectfully request that Plaintiffs’ subpoenas to
`
`the Banks be quashed in full. In support of this motion, the Clearview Defendants state as follows:
`
`FACTUAL BACKGROUND
`
`1.
`
`On September 13, 2021, counsel for Plaintiffs informed the Clearview Defendants
`
`that Plaintiffs would serve nonparty subpoenas on the Banks with a return date of October 1, 2021,1
`
`seeking the production of financial documents related to the Clearview Defendants and nonparties
`
`affiliated with Clearview. See Exhibit 1 (subpoena to JPMorgan Chase & Co.), Exhibit 2
`
`(subpoena to The Bank of America Corporation), and Exhibit 3 (subpoena to JPMorgan Chase
`
`Bank N.A.). Each subpoena demands the production of the following documents “related to” “any
`
`and all accounts” held by each of the Clearview Defendants and nonparties Smart Checker (and
`
`variant spellings), Insight Camera LLC, Standard International Technologies, S.A., and Standard
`
`International Technologies PLC (collectively, the “Nonparty Affiliates”):
`
`(a) All account opening documents;
`
`
`1 Clearview was notified of the subpoena to JP Morgan Chase N.A. on September 20, 2021, which
`has a return date of October 11, 2021.
`
`2
`
`

`

`Case: 1:21-cv-00135 Document #: 179 Filed: 09/27/21 Page 3 of 15 PageID #:3634
`
`(b) All correspondence;
`
`(c) All signature cards;
`
`(d) All corporate resolutions;
`
`(e) All LLC, Partnership, Articles of Incorporation, or other business formation
`documents;
`
`(f)
`
`All deposit and withdrawal slips;
`
`(g) All tax returns;
`
`(h) All documents concerning loans, leases, and/or lines of credit, including but not
`limited; to loan and lease applications, loan and lease documents, and line of credit
`documents;
`
`(i)
`
`All credit card application and statements;
`
`(j)
`
`All cancelled checks; and
`
`(k) All account transfer requests.
`
`See Exhibits 1, 2, and 3, Rider to Subpoena.
`
`2.
`
`Plaintiffs have also propounded dozens of document requests on the Clearview
`
`Defendants in this proceeding. Among other things, Plaintiffs have sought—and the Clearview
`
`Defendants have agreed to produce—a wide assortment of corporate and financial documents
`
`concerning the Clearview Defendants and the Nonparty Affiliates. Even though much of the
`
`requested information has no relation to the claims or defenses in this litigation, the Clearview
`
`Defendants have agreed to produce documents in response to the following requests:
`
`Request 33: All documents and communications related to the formation and
`organization of Clearview; Rocky Mountain; Smartcheckr; Insight Camera LLC;
`Standard International Technologies SA – Panama; Standard International
`Technologies PLC – Singapore or any other predecessor, successor, subsidiary or
`affiliate of any those entities, including documents and communications related to:
`(a) each entity’s purpose; (b) the officers of each entity; (c) the initial capitalization
`of each company; and (d) the bank accounts of each entity.
`
`Request 34: All documents and communications related to the assets, debts and
`expenses of Clearview; Rocky Mountain; Smartcheckr; Insight Camera; Standard
`International Technologies SA – Panama; Standard International Technologies
`
`3
`
`

`

`Case: 1:21-cv-00135 Document #: 179 Filed: 09/27/21 Page 4 of 15 PageID #:3635
`
`
`
`PLC – Singapore or any other predecessor, successor, subsidiary or affiliate of any
`those entities, including: (a) loan documents; (b) each company’s financial
`transactions, including bank statements, wire or electronic transfers, deposit tickets
`and withdrawal slips; (c) money or other consideration provided to any of the
`above-described entities by Hoan Ton-That and/or Richard Schwartz; (d) leases
`and/or mortgages; (e) accounts payable documents and documents showing how
`the payments were made; (f) accounts receivable documents; (g) any intellectual
`property owned the entity; (h) documents showing capital contributions by Hoan
`Ton-That or Richard Schwartz; and (i) financial statements.
`
`Request 35: All corporate meeting minutes, annual statements, corporate minute
`books and other documents related to the corporate formalities of Clearview; Rocky
`Mountain; Smartcheckr; Insight Camera; Standard International Technologies SA
`– Panama; Standard International Technologies PLC – Singapore or any other
`predecessor, successor, subsidiary or affiliate of any those entities.
`
`Request 36: All federal and state income tax returns (and accompanying forms and
`schedules) for Hoan Ton-That and Richard Schwartz, as well as Clearview; Rocky
`Mountain; Smartcheckr; Insight Camera; Standard International Technologies SA
`– Panama; Standard International Technologies PLC – Singapore or any other
`predecessor, successor, subsidiary or affiliate of any those entities.2
`
`Request 37. All documents and communications relating to any past, current or
`prospective value, profit, loss, financial metric or business valuation or service
`offering derived from or otherwise related to Biometric Data, Biometric Identifiers,
`Biometric Information or Face Templates collected, generated or extracted from
`photographs, images, and/or facial scans.
`
`Request 13: All documents and communications concerning your past, current or
`prospective monetization or other financial impact of: (a) your Face Template
`Database; (b) the Clearview Facial Recognition App or Software; and/or (c) the
`Rocky Mountain Facial Recognition App or Software. This request includes
`contracts or other documents governing your relationship with any user of the
`Clearview and/or Rocky Mountain Facial Recognition App or Software.
`
`
`See Exhibit 4 (Clearview Defendants’ Responses and Objections to Plaintiffs’ First Set of Requests
`
`for Production of Documents); Exhibit 5 (August 10, 2021 email memorializing the Clearview
`
`Defendants’ agreement to produce documents in response to Requests 33-35); Exhibit 6 (August
`
`
`2 The Clearview Defendants agreed to produce tax returns for Clearview and advised Plaintiffs
`that Rocky Mountain does not have any tax returns. The Clearview Defendants objected to the
`production of the Individual Defendants’ tax returns. Exhibit 6.
`
`4
`
`

`

`Case: 1:21-cv-00135 Document #: 179 Filed: 09/27/21 Page 5 of 15 PageID #:3636
`
`19, 2021 letter memorializing the Clearview Defendants’ agreement to produce documents in
`
`response to Requests 13, 36, and 37).
`
`3.
`
`Thus, the documents Plaintiffs seek from the Banks that are even arguably relevant
`
`to this case are ones that the Clearview Defendants have already agreed to produce. Among other
`
`things, the Clearview Defendants have agreed to produce documents related to any capital
`
`contributions made by Mr. Ton-That and Mr. Schwartz, and any transfers between the Individual
`
`Defendants and the Entity Defendants will be apparent in the Entity Defendants’ account
`
`statements. In short, transactions involving the Individual Defendants and the Entity Defendants
`
`will be apparent from the Entity Defendants’ financial records, which the Clearview Defendants
`
`have agreed to produce.
`
`4.
`
`Notwithstanding Clearview’s agreement to produce these documents, Plaintiffs
`
`have embarked on a campaign to extract various financial records from the Banks, including the
`
`personal financial information of the Individual Defendants. The Banks are nonparties that have
`
`financial relationships with the Clearview Defendants, but have no other involvement in the case.
`
`The subpoenas sweep far beyond potentially relevant documents to ones relating to personal
`
`information about each of the Individual Defendants as well as Nonparty Affiliates that include
`
`almost the entirety of the Individual Defendants’ financial records from credit card statements to
`
`cancelled checks from January 1, 2015 (years before Clearview was founded) to the present. This
`
`is a clear abuse of the discovery rules.
`
`ARGUMENT
`
`I.
`
`THE CLEARVIEW DEFENDANTS HAVE STANDING TO BRING THIS
`MOTION TO QUASH.
`
`5.
`
`As a threshold matter, the Clearview Defendants have standing to object to the
`
`subpoenas issued to the Banks because they have personal rights related to the documents sought
`
`5
`
`

`

`Case: 1:21-cv-00135 Document #: 179 Filed: 09/27/21 Page 6 of 15 PageID #:3637
`
`by Plaintiffs. See, e.g., Chaikin v. Fid. & Guar. Life Ins. Co., No. 02 C 6596, 2003 WL 22715826,
`
`at *1 (N.D. Ill. Nov. 17, 2003) (holding that an investor had standing to object to nonparty
`
`subpoenas because they requested his investment and financial documents); Arias-Zeballos v. Tan,
`
`06-CV-1268, 2007 WL 210112, at *1 (S.D.N.Y. Jan. 25, 2007) (collecting cases and recognizing
`
`that “courts have found that individuals, whose banking records are subpoenaed, have a privacy
`
`interest in their personal financial affairs that gives them standing to move to quash a subpoena
`
`served on a non-party financial institution.”). Plaintiffs have subpoenaed the Banks for an
`
`expansive sweep of documents that are “related to” “any and all accounts” held by the Clearview
`
`Defendants and the Nonparty Affiliates. Accordingly, the Clearview Defendants have standing to
`
`challenge the subpoenas based on their legitimate privacy interests in the corporate and financial
`
`records that Plaintiffs seek from the Banks.
`
`II.
`
`THE SUBPOENA REQUESTS ARE OVERBROAD AND OPPRESSIVE UNDER
`RULES 26 AND 45.
`
`6.
`
`Plaintiffs’ expansive document requests to the Banks are vexatious, overbroad, and
`
`not reasonably tailored to lead to the discovery of admissible evidence, particularly as they relate
`
`to the Individual Defendants. A party is only entitled to seek the discovery of documents that are
`
`“relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ.
`
`P. 26(b)(1). These limitations on the scope of discovery apply with even greater force in the
`
`context of nonparty discovery. “The party seeking discovery bears the initial burden of proving
`
`the discovery is relevant.” Morelli v. Alters, 1:19-CV-10707, 2020 WL 6508858, at *4 (S.D.N.Y.
`
`Nov. 5, 2020). “On a motion to quash, the party issuing the subpoena must demonstrate that the
`
`information sought is relevant and material to the allegations and claims at issue in the
`
`proceedings.” Id.; see also Heckler & Koch, Inc. v. German Sport Guns GmbH, 111-CV-01108,
`
`2014 WL 12756174, at *2 (S.D. Ind. Sept. 12, 2014).
`
`6
`
`

`

`Case: 1:21-cv-00135 Document #: 179 Filed: 09/27/21 Page 7 of 15 PageID #:3638
`
`7.
`
`The court may “quash . . . a subpoena to protect the person subject to or affected
`
`by the subpoena from unnecessary or unduly harmful disclosures of confidential information.”
`
`Fed. R. Civ. P. 45 Advisory Committee’s Note (1991). Further, the court shall limit discovery if
`
`“the discovery sought is unreasonably cumulative or duplicative,” “the party seeking discovery
`
`has had ample opportunity to obtain the information by discovery,” or “the proposed discovery is
`
`outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). And the court “must
`
`quash or modify a subpoena that . . . requires disclosure of privileged or other protected matter, if
`
`no exception or waiver applies” or “subjects a person to undue burden.” Fed. R. Civ. P.
`
`45(d)(3)(A).
`
`8.
`
`Plaintiffs seek nearly every document that relates to the Banks’ relationships with
`
`the Clearview Defendants and Nonparty Affiliates, including a wide array of account information.
`
`The subpoena requests are not limited to business accounts, but include the personal accounts and
`
`financial histories of the Individual Defendants. The Individual Defendants’ financial information
`
`is not relevant to the subject matter of this lawsuit, which consists of claims that the Clearview
`
`Defendants violated certain state privacy laws. Because the subpoenas are a fishing expedition
`
`into the Individual Defendants’ private and sensitive bank accounts, and are not likely to yield
`
`relevant or admissible information, the requests concerning the Individual Defendants should be
`
`quashed. Further, the subpoena requests related to the Entity Defendants and Nonparty Affiliates
`
`should also be quashed because the Clearview Defendants have already agreed to produce relevant
`
`and responsive financial records related to those entities in party discovery. See supra ¶ 2.
`
`A.
`
`9.
`
`The Subpoenas Should be Quashed as Related to the Individual Defendants.
`
`“When a subpoena seeks the production of an individual’s personal financial
`
`information, the court must balance the relevance of the information sought against the intrusion
`
`7
`
`

`

`Case: 1:21-cv-00135 Document #: 179 Filed: 09/27/21 Page 8 of 15 PageID #:3639
`
`into the affected individual’s privacy interests.” In re Glitnir Banki hf., 08-14757, 2011 WL
`
`3652764, at *5 (Bankr. S.D.N.Y. Aug. 19, 2011). Applying the Rules that govern discovery, it is
`
`evident that the Bank subpoenas should be quashed with respect to the Individual Defendants,
`
`because the information sought is not relevant to the litigation, and will result in significant and
`
`unwarranted intrusion into the Individual Defendants’ privacy and confidential financial
`
`information.
`
`1.
`
`The subpoena requests are not relevant to the litigation.
`
`Plaintiffs’ sweeping demands seek to require the Banks to produce virtually every
`
`10.
`
`scrap of information pertaining to the personal and professional finances of the Individual
`
`Defendants over the past seven years. This is intolerable since there is no claim or defense in the
`
`case that could possibly justify giving Plaintiffs such unfettered access to all of the Individual
`
`Defendants’ financial histories—particularly where the subpoenas predominately cover irrelevant
`
`material, and whatever small amount of relevant information there may be will be addressed in
`
`party discovery, as already agreed. See supra ¶¶ 2–3. These requests are not appropriate within
`
`the scope of discovery, and even less so within the realm of nonparty discovery. See, e.g., Ocean
`
`Atlantic Woodland Corp. v. DRH Cambridge Homes, Inc., 262 F. Supp. 2d 923, 927 (N.D. Ill.
`
`2003).
`
`11.
`
`For example, in Ocean Atlantic, the copyright owner of real estate development
`
`plans sued a developer for infringement with respect to one of its development sites. The plaintiff
`
`sought discovery of “all of the defendants’ financial records relating to their entire business and
`
`professional activities, on all construction projects throughout the country” over a six-year period.
`
`Id. at 926. Posing the question of whether “anything remotely relevant to the claims and defenses
`
`. . . [can] justify this massive body of discovery,” the court answered, “[w]e hardly think so.” Id.
`
`8
`
`

`

`Case: 1:21-cv-00135 Document #: 179 Filed: 09/27/21 Page 9 of 15 PageID #:3640
`
`“This court perceives an improper motive and purpose to this broad discovery. We cannot
`
`conceive of any relevance to the claims or defenses asserted in this . . . case, or of any legitimate
`
`purpose of this massive discovery demand. The production of virtually the entirety of defendants’
`
`business books and records . . . could not lead to any admissible evidence.” Id. at 927.
`
`12.
`
`Similarly, in a case involving fraud claims between former business partners, the
`
`defendant and counter-claimant subpoenaed three nonparty financial institutions for “information
`
`regarding Plaintiffs’ finances over an extended period of time” that had “little, if any, relevance to
`
`the single loan at issue in Plaintiff’s case.” Morelli, 2020 WL 6508858, at *6. The court concluded
`
`that:
`
`given the sweeping nature of their request for information of tangential relationship
`to Plaintiff’s claims in this case, the three subpoenas to financial institutions are the
`epitome of the classic ‘fishing expedition.’ They seem to be issued for the purpose
`of harassment, and, to the extent they seek any relevant information, are
`disproportionate to the needs of the case. They should be quashed.
`
`Id. The Court should reach the same conclusion in this case.
`
`13.
`
`Here, Plaintiffs have no legitimate litigation purpose to discover the Individual
`
`Defendants’ personal financial records from the last seven years, which cannot be reasonably
`
`linked to any claim or defense in this case. To the extent Plaintiffs argue that they are entitled to
`
`documents reflecting the Individual Defendants’ financial relationships with the Entity Defendants
`
`that would bear on their theory of alter ego liability, Plaintiffs will have access to any relevant
`
`documents during the course of party discovery. For example, Clearview has already agreed to
`
`produce its account statements, which will show its transactions with the Individual Defendants,
`
`if any. See supra ¶¶ 2–3. Clearview has also agreed to produce documents related to any money
`
`or capital contributions provided by Mr. Ton-That or Mr. Schwartz, as Plaintiffs have already
`
`requested in party discovery. Id.
`
`9
`
`

`

`Case: 1:21-cv-00135 Document #: 179 Filed: 09/27/21 Page 10 of 15 PageID #:3641
`
`14.
`
`But there is no reason why Plaintiffs would need, for example, all of the Individual
`
`Defendants’ credit card applications and statements, canceled checks, or tax returns. See, e.g., In
`
`re MT BALTIC SOUL Produktentankschiff-Ahrtsgesellschaft mgH & Co. KG, 15 MISC. 319, 2015
`
`WL 5824505, at *3 (S.D.N.Y. Oct. 6, 2015) (holding that a request for “every financial transaction
`
`[adverse parties] have engaged in with 11 different banks, along with considerable additional
`
`financial information, sweeps far too broadly to be proper for [the] limited purpose” of
`
`adjudicating “alter ego status” and instead “has every indication of being an archetypal fishing
`
`expedition.”); Fort Washington Resources, Inc. v. Tannen, 858 F. Supp. 455, 463 (E.D. Pa. 1994)
`
`(denying motion to compel production of individual defendant’s tax returns in veil piercing case).
`
`As a result, the motion to quash requests for the Individual Defendants’ financial documents should
`
`be granted. See Chaikin, 2003 WL 22715826, at *2; Cohn v. Taco Bell Corp., 92 C 5852, 1994
`
`WL 383975, at *3 (N.D. Ill. July 20, 1994); see also U.S. ex rel. Pool v. NMC, Inc., 2:09-CV-66,
`
`2010 WL 4668790, at *2 (S.D. Ind. Nov. 9, 2010).
`
`2.
`
`The subpoenas intrude upon the Individual Defendants’ privacy.
`
`
`
`15.
`
`The absence of any substantive connection between the documents requested by
`
`the subpoenas and the subject matter of the litigation calls into question Plaintiffs’ motives.
`
`Indeed, the Plaintiffs are abusing the subpoena power to intimidate the Individual Defendants by
`
`attempting to force the disclosure of the Individual Defendants’ personal and sensitive financial
`
`records. It is clear that the Bank subpoenas serve only to harass, oppress, and embarrass the
`
`Individual Defendants. A complete production of the Individual Defendants’ transactional
`
`histories would lay bare the intimate details of the Individual Defendants’ financial and personal
`
`lives. The discovery rules do not permit this invasive and overly broad intrusion. And the fact
`
`10
`
`

`

`Case: 1:21-cv-00135 Document #: 179 Filed: 09/27/21 Page 11 of 15 PageID #:3642
`
`that Plaintiffs chose to seek this information from nonparty Banks, rather the Individual
`
`Defendants themselves, only underscores the impropriety of their conduct.
`
`16.
`
` The Individual Defendants have a right to protect against disclosure of their
`
`private information (and in the case of joint accounts, their family members’ private information)
`
`from Plaintiffs. For example, Mr. Schwartz has a joint account with his spouse, who has a very
`
`serious medical condition. Plaintiffs’ abusive discovery tactics and requests for extensive financial
`
`records thus involve Mr. Schwartz’s spouse and her medical history, and are deeply concerning
`
`for her physical and mental well-being. Indeed, providing this intimate information about Mr.
`
`Schwartz’s wife’s lengthy history of medical payments raises potential Health Insurance
`
`Portability and Accountability Act (HIPAA) concerns. Due to these types of significant concerns,
`
`when a party subpoenas an adverse party’s financial information, courts are vigilant in limiting the
`
`scope of discovery so that irrelevant financial information is not produced. See, e.g., Ocean
`
`Atlantic, 262 F. Supp. 2d at 927; Morelli, 2020 WL 6508858, at *6; Glitnir Banki, 2011 WL
`
`3652764, at *5.
`
`17.
`
`Additionally, Plaintiffs have subpoenaed the Banks for the Individual Defendants’
`
`tax returns, which courts have recognized as “confidential communications between a taxpayer
`
`and the government.” Fed. Sav. & Loan Ins. Corp. v. Krueger, 55 F.R.D. 512, 514 (N.D. Ill. 1972)
`
`(holding that there is a policy against the disclosure of tax returns, and thus tax returns are
`
`discoverable only where the litigant raises the issue of the amount of his or her income); see also
`
`Cohn, 1994 WL 383975, at *4 (rejecting request to discover individual’s tax returns); Tannen, 858
`
`F. Supp. at 463 (denying motion to compel production of individual defendant’s tax returns and
`
`noting “the strong public policy concerns favoring nondisclosure of tax returns”). The Individual
`
`11
`
`

`

`Case: 1:21-cv-00135 Document #: 179 Filed: 09/27/21 Page 12 of 15 PageID #:3643
`
`Defendants thus have a strong interest in protecting their tax returns and other sensitive financial
`
`information from disclosure.
`
`18.
`
`Similar privacy concerns extend to other records of the Individual Defendants that
`
`are in the Banks’ possession: “subpoenas for bank records most often evoke privacy claims” and
`
`“the inquiry courts apply is whether the information itself is private, confidential, privileged, or
`
`highly sensitive, and not the form the records take.” Glitnir Banki, 2011 WL 3652764, at *5
`
`(citation omitted). In this instance, the records sought are unquestionably confidential and highly
`
`sensitive: they consist of a vast array of personal documents including, among other things, all
`
`correspondence, deposit and withdrawal slips, documents concerning loans and lines of credit,
`
`credit card applications and statements, and canceled checks, in the Banks’ possession—all of
`
`which is deeply private and nonpublic information. Plaintiffs’ requests “are plainly designed to
`
`get financial information about the [Individual Defendants] without regard to any connection
`
`between that information” and this litigation. Id. at *9.
`
`19.
`
`The Court should bar Plaintiffs from discovering the Individual Defendants’
`
`confidential and sensitive financial information from the Banks. There is no claim or defense in
`
`this case that is tied to the Individual Defendants’ entire financial history, and documents such as
`
`“all” of their tax returns, deposit and withdrawal slips, and canceled checks are not reasonably
`
`calculated to lead to the discovery of admissible evidence. “In short, the documents sought in the
`
`subpoena have little or no relevance to the claims and defenses in this action. . . . Weighing this
`
`against [the Individual Defendants’] legitimate interest in maintaining the confidentiality of
`
`proprietary documents bearing on [their] assets and financial plans, . . . the motion to quash the
`
`subpoena should be granted.” Solow v. Conseco, Inc., 06 CIV. 5988, 2008 WL 190340, at *5
`
`(S.D.N.Y. Jan. 18, 2008).
`
`12
`
`

`

`Case: 1:21-cv-00135 Document #: 179 Filed: 09/27/21 Page 13 of 15 PageID #:3644
`
`B.
`
`The Subpoenas Should be Quashed as Related to the Entity Defendants and
`Nonparty Affiliates.
`
`
`
`20.
`
`Further, numerous documents Plaintiffs request of the Banks relating to the Entity
`
`Defendants and Nonparty Affiliates are duplicative of documents the Clearview Defendants have
`
`already agreed to produce in discovery. See Fed. R. Civ. P. 26(b)(2)(C)(i) (limiting discovery if it
`
`“is unreasonably cumulative or duplicative, or can be obtained from some other source that is more
`
`convenient, less burdensome, or less expensive”). Of the documents that Plaintiffs seek from the
`
`Banks, the Clearview Defendants have agreed to produce corporate resolutions, business formation
`
`documents, tax returns, loan and lease documentation, deposit and withdrawal slips, and financial
`
`and account statements. See supra ¶¶ 2–3. The Clearview Defendants have also agreed to produce
`
`a wealth of corporate and financial information outside the scope of the Bank subpoenas. See id.
`
`21.
`
`Accordingly, if Plaintiffs seek additional corporate or financial records of the Entity
`
`Defendants and Nonparty Affiliates, they can request those documents in party discovery. And
`
`the few subpoena requests for documents that may be solely in the Banks’ possession—such as
`
`account opening documents, signature cards, and credit card applications—have no possible
`
`bearing on the claims or defenses in this action. See Ocean Atlantic, 262 F. Supp. 2d at 927;
`
`Morelli, 2020 WL 6508858, at *6; Glitnir Banki, 2011 WL 3652764, at *5. There is no reason to
`
`unduly burden nonparties like the Banks with expansive requests for such records when those
`
`materials are either irrelevant or are properly the subject of party discovery. As a result, the Bank
`
`subpoenas should be quashed in their entirety.
`
`CONCLUSION
`
`
`
`WHEREFORE, the Clearview Defendants respectfully request that the Court grant this
`
`Motion to Quash Nonparty Subpoenas.
`
`
`
`13
`
`

`

`Case: 1:21-cv-00135 Document #: 179 Filed: 09/27/21 Page 14 of 15 PageID #:3645
`
`September 27, 2021
`
`Respectfully submitted,
`
`By: /s/ Precious S. Jacobs-Perry ______
`
`Precious S. Jacobs-Perry (ARDC No.
`6300096)
`Howard S. Suskin (ARDC No.
`6185999)
`JENNER & BLOCK LLP
`353 North Clark Street
`Chicago, Illinois 60654
`Phone: (312) 222-9350
`pjacobs-perry@jenner.com
`hsuskin@jenner.com
`
`Andrew J. Lichtman (pro hac vice)
`JENNER & BLOCK LLP
`919 Third Avenue
`New York, New York 10022-3908
`Phone: (212) 891-1600
`alichtman@jenner.com
`
`Floyd Abrams
`Joel Kurtzberg
`CAHILL GORDON & REINDEL LLP
`32 Old Slip
`New York, NY 10005
`Phone: (212) 701-3000
`fabrams@cahill.com
`jkurtzberg@cahill.com
`
`Attorneys for Defendants Clearview
`AI, Inc., Hoan Ton-That, Richard
`Schwartz, Rocky Mountain Data
`Analytics LLC, and Thomas Mulcaire
`
`
`
`
`
`
`14
`
`

`

`Case: 1:21-cv-00135 Document #: 179 Filed: 09/27/21 Page 15 of 15 PageID #:3646
`
`CERTIFICATE OF SERVICE
`
`I certify that on September 27, 2021, I electronically filed the foregoing with the Clerk of
`
`
`
`Court using the CM/ECF system, which will send a Notice of Electronic Filing to all counsel of
`
`record.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`By: /s/ Precious S. Jacobs-Perry
`
`
`15
`
`