Case: 1:21-cv-00135 Document #: 392 Filed: 08/01/22 Page 1 of 13 PageID #:8083
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`
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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 FOR A RULING THAT THE CLEARVIEW DEFENDANTS’
`SOURCE CODE DOES NOT CONSTITUTE “HIGHLY CONFIDENTIAL
`INFORMATION – SOURCE CODE”
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`Pursuant to § 11 of the Amended Agreed Confidentiality Order (the “Confidentiality
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`Order”) (Dkt. 183), Plaintiffs, by interim lead class counsel, respectfully request that the Court
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`enter an Order finding that the source code produced by Defendants Clearview AI, Inc.
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`(“Clearview AI”); Hoan Ton-That; Richard Schwartz; Rocky Mountain Data Analytics LLC; and
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`Thomas Mulcaire (collectively, the “Clearview Defendants”) does not constitute “Highly
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`Confidential Information – Source Code.” In support of this motion, Plaintiffs state as follows:
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`INTRODUCTION
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`Plaintiffs bring this motion to obtain a ruling from the Court that the source code produced
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`by the Clearview Defendants (the “Source Code”) does not constitute “Highly Confidential
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`Information – Source Code,” despite the Clearview Defendants designating it as such. The
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`Clearview Defendants cannot meet their burden of establishing that the Source Code is, in fact,
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`“Highly Confidential Information – Source Code.” Instead, discovery – and the absence of
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`discovery – has revealed that the Clearview Defendants do not require their employees and
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`contractors to sign non-disclosure or non-compete agreements that would ensure the
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`Case: 1:21-cv-00135 Document #: 392 Filed: 08/01/22 Page 2 of 13 PageID #:8084
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`confidentiality of the Source Code. Indeed, the Clearview Defendants do not even have their
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`engineers who work directly with the Source Code enter into such agreements.
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`Moreover, the Clearview Defendants have not produced documents, policies or
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`information showing the internal processes in place, if any, to protect the purported confidentiality
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`of the Source Code. For instance, the Clearview Defendants have not produced evidence showing
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`that: (a) only certain employees or contractors can access the Source Code; (b) access to the Source
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`Code is restricted via a password or biometric scan; (c) employees or contractors may not email,
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`print or otherwise transmit portions or the entirety of the Source Code; (d) employees or
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`contractors may not save the Source Code to a remote device, such as a thumb drive or hard drive;
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`or (e) employees or contractors may not transport the Source Code without restriction.
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`
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`Notwithstanding the Clearview Defendants’ failure to produce the above-described
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`evidence, by designating the Source Code as “Highly Confidential Information – Source Code,”
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`the Clearview Defendants have imposed severe limitations on Plaintiffs’ ability to review and use
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`the Source Code. There is no justification for imposing on Plaintiffs restrictions with respect to the
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`Source Code that the Clearview Defendants do not otherwise impose in the normal course of their
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`business operations. Because the Source Code is not, in fact, “Highly Confidential Information –
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`Source Code,” the Court should grant Plaintiffs’ motion and rule that the Clearview Defendants
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`have improperly designated the Source Code.
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`FACTUAL BACKGROUND
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`The Confidentiality Order Places Severe Restrictions on the Ability to Review and Use “Highly
`Confidential Information – Source Code.”
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`The Confidentiality Order defines “Highly Confidential Information – Source Code” as:
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`computer code and associated comments and revision histories, formulas,
`engineering specifications or schematics that define or otherwise describe in detail
`the algorithms or structure of software or hardware designs, disclosure of which to
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`Case: 1:21-cv-00135 Document #: 392 Filed: 08/01/22 Page 3 of 13 PageID #:8085
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`another party or non-party would create a substantial risk of serious harm that could
`not be avoided by less restrictive means.
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`Dkt. 183 § 2.D.
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`Section 4 of the Confidentiality Order sets forth numerous restrictions on the ability to
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`review and use information designated as “Highly Confidential Information – Source Code”:
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`First, the requesting party is required to disclose its consulting experts to the producing
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`party before any source code review can take place to allow the producing party the opportunity
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`to object. See id. § 4(a).
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`Second, any source code review can only take place “during normal business hours on
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`business days or at other mutually agreeable times, at an office of the producing party or producing
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`party’s counsel or another mutually agreed upon location that is reasonably convenient for the
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`receiving party.” Id. § 5(a). The party requesting the review must provide at least 10 days’ advance
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`notice for the first inspection and at least two days’ notice for subsequent inspections. Id.
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`Third, the source code review may only be performed on a computer without internet
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`access or network access to other computers, printers or storage devices. Id. § 5(b). The person
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`conducting the review may not “copy, remove or otherwise transfer any portion of the source code
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`onto any recordable media or recordable device.” Id.
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`Fourth, the person conducting the review may not bring into the review room any
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`“smartphone, tablet, blackberry, laptop computer, photographic or video recording device, or any
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`other recording media . . . .” Id. § 5(c).
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`Fifth, the party requesting the review must provide at least five business days’ notice of
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`any request to have specific software loaded onto the review computer. Id.
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`Sixth, the person conducting the review is limited in the types of notes that can be taken.
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`Id.
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`Case: 1:21-cv-00135 Document #: 392 Filed: 08/01/22 Page 4 of 13 PageID #:8086
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`Seventh, the producing party may monitor the activities of the person conducting the
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`review. Id.
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`Eighth, the party seeking the review is limited in the number of pages of source code that
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`may be printed. Id. § 5(h).
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`Ninth, the party requesting the source code may only receive a copy of the requested pages
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`on paper and may only transport the source code via hand carry or overnight mail. Id. § 5(f).
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`Plaintiffs’ Challenge to the Clearview Defendants’ Designation of Their Source Code as
`“Highly Confidential Information – Source Code”
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`The Clearview Defendants have designated their Source Code as “Highly Confidential
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`Information – Source Code.” See Dkt. 162 at 1-2.1 Plaintiffs have challenged that designation, and
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`the Clearview Defendants have failed to sufficiently rebut the challenge.
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`Plaintiffs’ First Motion to Compel
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`In Plaintiffs’ First Motion to Compel, Plaintiffs argued that the Clearview Defendants
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`sought to “avoid their discovery obligations” by claiming that various discovery requests “seek
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`discovery of proprietary information.” Dkt. 213 at 9 (emphasis in original). Plaintiffs further
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`argued that the Clearview Defendants “ignore that the requests at issue . . . seek information related
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`to whether any source code is, in fact, proprietary (e.g., the requests seek non-disclosure
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`agreements and access restrictions).” Id. (emphasis added). The Court granted Plaintiffs’ motion
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`and ruled that, “[c]onsistent with Plaintiffs’ representation [regarding seeking information related
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`to whether the source code is proprietary], the Court compel[s] Defendants to produce documents
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`sufficient to identify the proprietary (or non-proprietary) nature of Defendants’ source code within
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`60 days of this Order.” Dkt. 237 at 9 (emphasis added).
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`1 Citations to docketed entries are to the CM/ECF-stamped page numbers.
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`Case: 1:21-cv-00135 Document #: 392 Filed: 08/01/22 Page 5 of 13 PageID #:8087
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`The Clearview Defendants Have Not Produced Non-Disclosure Agreements or Other
`Documents Showing How Access to the Source Code Is Restricted
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`Notwithstanding the Court’s Order on Plaintiffs’ First Motion to Compel, based on a
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`review of the Clearview Defendants’ document productions, the Clearview Defendants have not
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`produced non-disclosure agreements restricting disclosure of the Source Code. Exhibit 2 (Drury
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`Decl.) ¶ 2. Further, based on a review of the Clearview Defendants’ document productions, the
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`Clearview Defendants have not produced documents showing that: (a) only certain employees or
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`contractors can access the Source Code; (b) access to the Source Code is restricted via a password
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`or biometric scan; (c) employees or contractors may not email, print or otherwise transmit portions
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`or the entirety of the Source Code; (d) employees or contractors may not save the Source Code to
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`a remote device, such as a thumb drive or hard drive; or (e) employees or contractors may not
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`transport the Source Code without restriction. Id. 2. Nor have the Clearview Defendants produced
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`non-compete agreements that they required their employees and contractors to sign. Id. ¶ 2.
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`The lack of disclosure and access restrictions is not academic. During the course of this
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`litigation, the Clearview Defendants have disclosed various members of their engineering staff
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`who work with the Source Code but who have not signed agreements limiting their ability to
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`disclose or use the Source Code. Specifically, they have disclosed the following individuals and
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`described their knowledge as follows:
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`•
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`•
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`•
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`“Terence Liu – Clearview Vice President of Machine Learning: Clearview’s
`machine-learning algorithms”;
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`“Kyler Amos – Vice President of Engineering: Development and operations of
`Clearview’s search application”; and
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`“Scott Fowler, Noah Gitalis and Justin Godesky may have relevant knowledge
`about the Clearview app from a technical and/or engineering perspective.”
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`Exhibit 2 (Clearview Def. Resp. to Pl. 1st Set of Interrog.) at 7-8; Exhibit 3 (Clearview Def. 8th
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`Supp. Resp. to Pl. 1st St of Interrog.) at 2-3.
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`Case: 1:21-cv-00135 Document #: 392 Filed: 08/01/22 Page 6 of 13 PageID #:8088
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`The Clearview Defendants have described Terence Liu as a member of Clearview AI’s
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`“Leadership Team,” who held the position of “Chief of Technology.” Exhibit 4 (5/20/2022 Drury
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`ltr.) at 3. In that role, Liu led “Clearview AI’s day-to-day development operations, applying the
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`most efficient, cutting-edge technologies available to the needs of [Clearview AI’s] clients.” See
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`id. Yet, the Clearview Defendants have not produced documents restricting his disclosure or use
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`of the Source Code or limiting his ability to compete with the Clearview Defendants. See Ex. 1 ¶
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`2. Making matters worse for the Clearview Defendants, they contend Liu performed his day-to-
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`day development operations for Clearview AI as an independent contractor. Exhibit 5 (5/27/2022
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`Lichtman ltr) at 3. The Clearview Defendants have not produced documents showing that Liu
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`could not disclose the Source Code in connection with contract work he performed for others. See
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`Ex. 1 ¶ 2.
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`With respect to Scott Fowler, the Clearview Defendants have disclosed that he is not
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`represented by their counsel (see Ex. 3 at 3) and that they have no contact information for him.
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`Exhibit 6 (Email chain) at 8. The Clearview Defendants have not produced any non-disclosure or
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`non-compete agreements with respect to Fowler. See Ex. 1 ¶ 2.
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`In the Absence of Supporting Documents, Plaintiffs have Challenged the Clearview
`Defendants’ Designation of the Source Code
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`On June 24, 2022, Plaintiffs’ counsel formally challenged the Clearview Defendants’
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`designation of the Source Code as “Highly Confidential Information – Source Code” and requested
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`to meet and confer. Exhibit 7 (6/24/2022 Drury ltr) at 2. Plaintiffs’ counsel pointed out that the
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`“Clearview Defendants’ own treatment of their source code reveals that it does not constitute
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`‘Highly Confidential Information – Source Code.’” Id. Plaintiffs’ counsel further pointed out that
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`“[w]hile the Clearview Defendants do not treat their source code as ‘Highly Confidential
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`Information – Source Code’ in the normal course of their business, they have designated it as such
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`Case: 1:21-cv-00135 Document #: 392 Filed: 08/01/22 Page 7 of 13 PageID #:8089
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`in this litigation.” Id. at 3. Plaintiffs’ counsel stated that “[a]s a result, severe restrictions have been
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`placed on Plaintiffs’ access to and use of the source code, even though the Clearview Defendants
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`have not implemented similar restrictions for current or former employees or contractors.” Id.
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`In response, the Clearview Defendants disputed that the Source code “is not highly
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`confidential and proprietary.” Exhibit 8 (6/29/2022 Lichtman ltr) at 4. According to the Clearview
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`Defendants, their patent application and a declaration from Thomas Mulcaire sufficiently showed
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`the confidential and proprietary nature of the Source Code. Id.
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`While a patent application and patent may provide the Clearview Defendants with legal
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`rights regarding their Source Code, that does not mean that the Clearview Defendants treated their
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`Source Code in a confidential manner – they did not. With respect to the Mulcaire Declaration, it
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`makes various conclusory assertions. See Exhibit 9 (Mulcaire Decl.). According to Mulcaire,
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`“Clearview views the Proprietary Source Code as a trade secret” and “takes precautions to protect
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`the Proprietary Source Code.” Id. ¶ 3. Mulcaire further asserts that the value of the source code
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`“depends in large part on its secrecy.” Id. ¶ 4. Mulcaire notes that the Clearview Defendants have
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`submitted a patent application to protect the source code. Id. The declaration omits any discussion
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`of the Clearview Defendants’ lack of internal documentation, information or policies to actually
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`protect the Source Code. In other words, while Mulcaire nakedly asserts that the Source Code
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`depends on its secrecy, he ignores that the Clearview Defendants failed to take basic steps to
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`protect that purported secrecy.
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`The “Highly Confidential Information – Source Code” Designation Has Severely Interfered
`with Plaintiffs’ Ability to Freely Review the Source Code and Will Continue to Do So
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`The Clearview Defendants’ designation of the Source Code as “Highly Confidential
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`Information – Source Code,” has severely interfered with Plaintiffs’ ability to review and use the
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`Source Code in connection with this litigation and will continue to do so. Because of the
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`Case: 1:21-cv-00135 Document #: 392 Filed: 08/01/22 Page 8 of 13 PageID #:8090
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`designation, Plaintiffs have to abide by the restrictions set forth in the Confidentiality Order. Thus,
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`at the Clearview Defendants’ insistence, the two source code reviews that have taken place to date
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`have had to occur in New York City, even though Plaintiffs’ consulting experts are located in
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`California.2 Ex. 1 ¶¶ 3-4. The hotel and airfare expenses associated with those source code reviews
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`have exceeded $4,600. Id. ¶ 5. Moreover, because of the restrictions and the Clearview
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`Defendants’ inability to accommodate the dates on which Plaintiffs proposed the initial source
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`code review to take place, Plaintiffs had to retain a second consulting expert. Id. ¶ 3. Plaintiffs
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`anticipate further source code reviews. Id. ¶ 4. Thus, the expenses directly connected with the
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`Confidentiality Order will continue to add up.
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`Beyond the expenses, Plaintiffs’ consulting experts can only review the Source Code when
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`they are in New York City, as opposed to when it is convenient to them. Moreover, to the extent
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`Plaintiffs need to submit an expert report based in whole or in part on the Source Code, the report
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`will have to be based on Plaintiffs’ limited access to the Source Code. Indeed, even if Plaintiffs
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`print out limited portions of the Source Code, they are severely restricted in the way in which they
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`can transport and use the Source Code. There is no basis for Plaintiffs to be prejudiced this way in
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`this case. Notably, when Plaintiffs requested that modifications be made to the Confidentiality
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`Order to address the restrictions, the Clearview Defendants refused.3 See Exhibit 10 (6/23/2022
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`Drury ltr) at 2-3; Ex. 8 at 2-4.
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`Plaintiffs Satisfied the Meet and Confer Requirements of the Confidentiality Order
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`The Confidentiality Order allows a party to challenge the confidentiality designation of
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`another party. Id. § 11. The party making the challenge must first provide written notice of the
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`2 The Clearview Defendants’ counsel has an office located in San Francisco, California. They refused to
`allow the Source Code reviews to take place at that office. Ex. 1 ¶ 4.
`3 To the extent the Clearview Defendants’ designation remains in place, Plaintiffs likely will need to file a
`motion to amend the Confidentiality Order.
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`Case: 1:21-cv-00135 Document #: 392 Filed: 08/01/22 Page 9 of 13 PageID #:8091
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`challenge and then seek to meet and confer. Id. § 11(a). The producing party has five days to
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`respond to the challenge after conferring. Id. If a dispute is not resolved after conferring or if the
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`producing party will not participate in good faith in the meet and confer process in a timely manner,
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`the challenging party may seek judicial relief. Id.
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`As discussed above, on June 24, 2022, Plaintiffs requested to meet and confer regarding
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`the designation of the Source Code as “Highly Confidential Information – Source Code.” See Ex.
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`7; see also Ex. 6 at 9; Ex. 1 ¶ 6. The parties met and conferred on July 11, 2022 and did not reach
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`agreement. See Ex. 6 at 5.
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`ARGUMENT
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`The Clearview Defendants Have Improperly Designated the Source Code as “Highly
`Confidential Information – Source Code.”
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`Pursuant to the Confidentiality Order, the Clearview Defendants have the burden of
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`showing the propriety of the confidentiality designation at issue. Dkt. 183 § 11(b). They have failed
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`to satisfy that burden.
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`The facts above make clear that the Clearview Defendants do not treat their Source Code
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`as “Highly Confidential Information – Source Code.” Based on the absence of documentation, the
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`Clearview Defendants do not preclude their own employees and contractors, including their
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`engineers, from disclosing the Source Code or going to work for competitors. Further, based on
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`the absence of documentation, the Clearview Defendants do not restrict access to the Source Code
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`or impose other restrictions set forth in the Confidentiality Order with respect to how Source Code
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`must be handled. Certainly, if disclosure of the Source Code would create a substantial risk of
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`serious harm, the Clearview Defendants would have implemented basic precautions to protect it.
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`While the Clearview Defendants do not treat the Source Code as “Highly Confidential
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`Information – Source” in the normal course, they have nevertheless imposed on Plaintiffs the
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`Case: 1:21-cv-00135 Document #: 392 Filed: 08/01/22 Page 10 of 13 PageID #:8092
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`severe restrictions that go along with “Highly Confidential Information – Source Code” by
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`designating it as such. By doing so, the Clearview Defendants have gained a tactical advantage –
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`i.e., they have improperly limited the ways in which Plaintiffs can review and use the Source Code.
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`But that is not the purpose of the Confidentiality Order. Its purpose is to provide protections for
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`information that genuinely is “Highly Confidential Information – Source Code,” which the Source
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`Code is not.
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`During the parties’ meet and confer and in correspondence, the Clearview Defendants have
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`asserted that Plaintiffs are unable to point to a disclosure of the Source Code outside of the
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`Clearview Defendants’ employees and contractors. See Ex. 6 at 3. That improperly shifts the
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`burden to Plaintiffs. As discussed throughout, the Clearview Defendants cannot meet their burden.
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`Moreover, whether a disclosure of the Source Code has been made to persons other than
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`the Clearview Defendants’ employees and contractors is not dispositive. Rather, the issue is
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`whether the Clearview Defendants’ claim that the Source Code is “Highly Confidential
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`Information – Source Code” aligns with the actual facts. It does not.
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`CONCLUSION
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`The Clearview Defendants have improperly designated their Source Code as “Highly
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`Confidential Information – Source Code.” Accordingly, Plaintiffs’ respectfully request that the
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`Court enter an Order ruling that the Source Code is not “Highly Confidential Information – Source
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`Code.”
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`Dated: August 1, 2022
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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
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`Case: 1:21-cv-00135 Document #: 392 Filed: 08/01/22 Page 11 of 13 PageID #:8093
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`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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`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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`Case: 1:21-cv-00135 Document #: 392 Filed: 08/01/22 Page 12 of 13 PageID #:8094
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`Steven T. Webster
`Aaron S. Book
`WEBSTER BOOK 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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`12
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`Case: 1:21-cv-00135 Document #: 392 Filed: 08/01/22 Page 13 of 13 PageID #:8095
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`CERTIFICATE OF SERVICE
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`I, Scott R. Drury, an attorney, hereby certify that, on August 1, 2022, I filed the foregoing
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`document using the Court’s CM/ECF system, which effected service on all counsel of record.
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`/s/ Scott R. Drury
`Counsel for Plaintiffs
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