Case: 1:21-cv-00135 Document #: 444 Filed: 08/30/22 Page 1 of 16 PageID #:9395
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`
`
`In re: Clearview AI, Inc. Consumer
`Privacy Litigation
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`
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`Case No. 1:21-cv-00135
`
`Hon. Sharon Johnson Coleman
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`Magistrate Judge Maria Valdez
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`THE CLEARVIEW DEFENDANTS’ MEMORANDUM IN OPPOSITION TO
`PLAINTIFFS’ AMENDED MOTION TO EXTEND THE FACT DISCOVERY
`DEADLINE AND TO INCREASE The NUMBER OF DEPOSITIONS PERMITTED
`UNDER FED. R. CIV. P. 30(a)(2)
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`Defendants Clearview AI, Inc. (“Clearview”), Rocky Mountain Data Analytics LLC, Hoan
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`
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`Ton-That, Richard Schwartz, and Thomas Mulcaire (collectively, the “Clearview Defendants”),
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`by and through their counsel, respectfully submit this memorandum of law in opposition to
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`Plaintiffs’ Amended Motion to Extend the Fact Discovery Deadline and to Increase the Number
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`of Depositions Permitted Under Fed. R. Civ. P. 30(a)(2) (Dkt. 441) (the “Motion”).
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`INTRODUCTION
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`The Court clearly stated that the September 26, 2022 fact discovery deadline is a “FINAL
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`extension” (Dkt. 329), and as recently as August 10, 2022, confirmed that this date remains a “hard
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`deadline.” (Dkt. 407 at 2.) Now, over 16 months into discovery, Plaintiffs respond by arguing that
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`“circumstances have changed” to justify their request to extend the deadline for fact discovery yet
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`again. Plaintiffs attempt to distort the chronology and events in this case, but the record makes
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`clear the lack of diligence with which Plaintiffs have chosen to litigate this case. Each of the points
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`they raise is unavailing:
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` First, Plaintiffs argue that “document productions are ongoing, including Court-ordered
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`document productions.” (Dkt. 441 at 2.) While a small amount of data remains to be
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`produced by the Clearview Defendants in the coming days, the Clearview Defendants
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`already informed Plaintiffs that they would complete the Court-ordered document
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`productions by September 2, 2022—well before the fact discovery deadline. (Ex. 1.)
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`The Clearview Defendants’ document production was substantially complete months
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`ago, and the few remaining documents to be produced are largely in response to
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`Plaintiffs’ belated discovery requests. Moreover, the Court set specific dates for the
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`Clearview Defendants to complete their document production with the upcoming
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`discovery deadline in mind.
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` Second, Plaintiffs claim they “are engaged in ongoing discovery disputes” with the
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`Clearview Defendants. (Dkt. 441 at 2.) The Court’s August 18, 2022 Order on
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`Plaintiffs’ recent motion to compel already resolved many of those alleged discovery
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`disputes. And Plaintiffs should have raised any additional purportedly “ongoing
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`disputes”—which concern Clearview’s source code—months ago. That Plaintiffs
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`waited until the final weeks of discovery to make new and unsupported claims does not
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`provide good cause to extend the discovery schedule.
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` Third, Plaintiffs state they are “continuing to investigate” issues related to Macy’s
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`electronically stored information. (Id. at 2.) However, Macy’s was also subject to the
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`Court’s order setting the “FINAL” deadline for fact discovery. (Dkt. 329.) And any
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`discovery relating to alleged spoliation can proceed in parallel with other ongoing
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`discovery. Plaintiffs fail to explain why this discrete issue warrants a wholesale
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`extension of the fact discovery deadline for all Defendants.
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` Fourth, Plaintiffs state their “inspection of . . . source code . . . is ongoing.” (Dkt. 441
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`at 2.) However, as the Clearview Defendants have explained before, Plaintiffs had
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`ample opportunity to review the source code after the Amended Agreed Confidentiality
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`Order was entered on October 5, 2021—but despite the numerous invitations from the
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`Clearview Defendants, Plaintiffs refused to review the source code until May 2022.
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`(Dkt. 326 at 10-11.) Since then, Plaintiffs have reviewed the source code for a total of
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`10 days, and the source code remains available for their review. Plaintiffs’ lack of
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`diligence in pursuing source code reviews sooner or requesting additional days since
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`they belatedly began the review is not good cause to extend the discovery schedule.
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` Fifth, Plaintiffs point to the filing of their most recent amended complaint on August
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`22, 2022—a month before the close of fact discovery—which names two additional
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`Macy’s entities as defendants. (Dkt. 441 at 2.) On June 8, 2022, Plaintiffs filed a
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`belated motion for leave to amend the complaint to name several additional corporate
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`defendants. The Court almost entirely denied the motion, recognizing that Plaintiffs
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`delayed in waiting until the deadline for joinder of parties had passed to add these new
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`defendants. (Dkt. 407 at 2-3.) The Court simply allowed Plaintiffs to add two new
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`Macy’s entities, which should have almost no impact on the overall case schedule—
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`indeed, the Court at the same time reiterated that September 26, 2022 remained a “hard
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`deadline.” (Id. at 2.)
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`Finally, Plaintiffs’ request to take additional depositions is unsupported and appears to be
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`another delay tactic to push back the discovery schedule. Notably, as of this date, less than a month
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`before the close of discovery, Plaintiffs have not taken or even noticed any depositions since their
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`preliminary injunction motion was briefed fifteen months ago, which speaks to their lack of
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`diligence in observing court-ordered deadlines and the complete conjecture associated with their
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`position that they will need double the number of depositions beyond what the Rules provide.
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`The record shows that the Clearview Defendants have been reasonable—they twice agreed
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`to two-month extensions to the discovery deadline, but when the Court provided for a “FINAL”
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`deadline, the Clearview Defendants took it seriously. By contrast, throughout this litigation,
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`Plaintiffs have engaged in a well-documented strategy of delay in their endless quest to extend the
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`discovery schedule and impose extraordinary costs on the Clearview Defendants. The Court
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`should enforce the “FINAL” fact discovery deadline and deny the Motion in its entirety.
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`FACTUAL BACKGROUND
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`When this multidistrict litigation commenced, Plaintiffs stated that they would only need
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`seven months for fact discovery, and that discovery should therefore close on October 21, 2021.
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`(Dkt. 27 at 2-3.) The Court set an initial fact discovery deadline of January 26, 2022. (Dkt. 28.)
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`The parties exchanged initial disclosures on May 7, 2021, and Plaintiffs served their first set of
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`interrogatories and requests for production on May 24, 2021—sweeping discovery requests that
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`covered all aspects of this litigation. The Clearview Defendants timely responded to this discovery
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`on July 1, 2021, and began producing documents on a rolling basis on August 20, 2021. The
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`Clearview Defendants also emailed an updated list of ESI search terms to Plaintiffs on September
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`10, 2021. Plaintiffs then waited over six weeks, until October 26, 2021, to raise objections to the
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`September 10, 2021 search terms. (See Dkt. 219 at 5.) Then, four and a half months after the
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`Clearview Defendants served their discovery responses, Plaintiffs filed their first motion to compel
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`on November 15, 2021. (Dkt. 213.) On December 20, 2021, the Court entered an order that
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`granted in part and denied in part Plaintiffs’ motion to compel. (Dkt. 237.) Plaintiffs filed
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`objections to the Court’s order, which were subsequently overruled. (Dkt. 408.)
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`In August 2021, Plaintiffs indicated that they sought to review Clearview’s proprietary
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`source code. The parties spent nearly eight weeks negotiating an amended confidentiality order to
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`allow Plaintiffs to pursue this discovery while protecting Clearview’s valuable source code from
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`disclosure or improper use. (See Dkts. 168; 173; 175; 177.) The Amended Agreed Confidentiality
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`Order was eventually entered on October 5, 2021 (the “Confidentiality Order”). (Dkt. 183.)
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`Plaintiffs were then free to review Clearview’s source code, subject to the conditions of the
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`Confidentiality Order. However, Plaintiffs did not request a source code review for seven months,
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`despite no less than five express invitations from the Clearview Defendants, dating back to
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`December 17, 2021. (See Dkts. 326 at 10-11; 392-8 at 1.) And, since requesting their first source
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`code review in May 2022, Plaintiffs have only used 10 days to review the source code.
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`On January 21, 2022, the parties moved jointly to extend the fact discovery schedule. (Dkt.
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`264.) While the Clearview Defendants proposed a two-month extension of time to March 28,
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`2022, noting that they had “completed the vast majority of their document productions” in response
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`to Plaintiffs’ initial discovery requests, Plaintiffs requested an indefinite extension. (Id. at 6.) The
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`Court then set a May 26, 2022 deadline to complete fact discovery. (Dkt. 265.)
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`In the meantime, Plaintiffs continued to create obstacles to completing fact discovery, and
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`Plaintiffs’ delays have had a cascading effect. After the Court’s order on Plaintiffs’ first motion
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`to compel, which required Plaintiffs to narrow certain discovery requests, Plaintiffs waited until
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`February 2022, over six weeks after the December 20, 2021 order, and after the Clearview
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`Defendants’ production was substantially complete—to serve the new discovery requests. (See
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`Dkt. 264 at 6.) Not only could these new discovery requests have been served much earlier, but
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`many of them were duplicative of Plaintiffs’ prior requests that were found to be overbroad and
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`objectionable. (Dkts. 326 at 12-13; 402 at 7.)
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`Further, as noted in the parties’ April 13, 2022 joint status report, Plaintiffs refused to move
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`forward with any review of Clearview’s source code despite their ability to review the source code
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`since October 2021 and numerous invitations since December 2021. (See Dkt. 326 at 10-11.) That
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`April 13, 2022 joint status report reflects that, six months after the entry of a fully-negotiated
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`Agreed Amended Confidentiality Order, and only a few weeks before the fact discovery deadline
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`at the time of May 26, 2022, Plaintiffs had yet to commence their review of the source code—the
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`evidence they believed to be at the heart of the case. In the April 13, 2022 joint status report,
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`Plaintiffs pointed to the lack of source code reviews as a basis to further extend fact discovery
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`through December 2, 2022. (See id. at 7.) The Court then set a “FINAL” fact discovery deadline
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`of September 26, 2022. (Dkt. 329.)
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`Now, in the Motion, Plaintiffs repeat their arguments from the April 13, 2022 joint status
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`report, stating that the fact discovery deadline should be extended for even more source code
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`reviews, and deflecting blame onto the Clearview Defendants for supposedly “withholding
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`engineering-type documents” until May 2022. (Dkt. 441 at 6-7.) Plaintiffs have consistently used
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`this “engineering documents” argument as an excuse for their lack of diligence in reviewing
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`Clearview’s source code. But throughout this litigation, the Clearview Defendants have been
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`transparent about the ESI search terms they used to identify documents, and they produced the
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`documents captured by the terms designed to find “engineering documents” responsive to Request
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`No. 15 in Plaintiffs’ First Set of Document Requests (“Request No. 15”). Plaintiffs failed to raise
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`this issue of “engineering documents” in their first motion to compel, or for months after the
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`Clearview Defendants represented that their document production was substantially complete.
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`When Plaintiffs did raise the issue, the Clearview Defendants ran additional searches and made
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`additional productions in May 2022. But there was no reason why Plaintiffs needed every
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`“schematic” to start their source code reviews, given that there was no limit on the number of
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`source code reviews—or if they did, why they failed to pursue the issue earlier, rather than wait
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`seven months to begin their source code reviews.
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`Weeks after the entry of the “FINAL” deadline, on June 8, 2022, Plaintiffs belatedly moved
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`to amend the Complaint to name several additional parties they failed to add before the time to
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`join new parties elapsed. (Dkt. 351.) The deadline to join new parties was October 1, 2021 (Dkt.
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`28), but Plaintiffs moved to add six entirely new corporate entities as defendants over eight months
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`after that deadline passed, and misrepresented in their briefing to the Court that “the Court has not
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`set a date for joining new parties.” (Id. at 2.) At no point did Plaintiffs claim that Macy’s was an
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`inadequate class representative, so the most obvious explanation for this motion is that it was
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`another delay tactic to extend discovery and this case indefinitely. On August 10, 2022, the Court
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`largely denied Plaintiffs’ motion, which was filed “late in relation to the upcoming fact discovery
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`deadline,” and the Court emphasized that September 26, 2022 remained a “hard deadline” for the
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`close of discovery. (Dkt. 407 at 2-3.)
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`On July 21, 2022, Plaintiffs filed a second motion to compel, which again raised issues that
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`Plaintiffs could have addressed months earlier. (Dkt. 383.) The Court’s order largely required the
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`Clearview Defendants to produce documents they had already produced or agreed to produce by
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`September 1, 2022—well before the current deadline for fact discovery. The Court also ordered
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`the Clearview Defendants to review and produce documents with certain ESI terms related to the
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`Clearview Defendants’ extraterritoriality defenses by September 26, 2022—within the current
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`period for fact discovery. However, to make every effort to abide by the fact discovery deadline,
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`the Clearview Defendants agreed to withdraw their extraterritoriality defense with respect to the
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`California and Virginia claims, narrowing the scope of the production so that the Clearview
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`Defendants could complete it by September 2, 2022.1 (Ex. 1.)
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`On August 1, 2022, weeks before the end of fact discovery, Plaintiffs also filed a motion
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`to de-designate Clearview’s source code as highly confidential (Dkt. 392)—an issue they first
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`raised in August 2021, then dropped for many months before raising it again almost a year later
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`(Dkts. 420-11; 420-12). The Court denied Plaintiffs’ motion. (Dkt. 437.)
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`On August 19, 2022 the Clearview Defendants emailed Plaintiffs’ counsel, asking for
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`Plaintiffs’ availability to be deposed during the weeks of September 12 and 19 (in advance of the
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`current fact discovery deadline), but Plaintiffs have not responded to this request. (Ex. 2.) Nor
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`have Plaintiffs asked to schedule a single deposition, only further confirming that they have no
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`intention of meeting the fact discovery deadline. Last week, on August 24, 25, and 26, 2022,
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`Plaintiffs served several additional sets of discovery on the Clearview Defendants (as well as
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`Macy’s). (See Exs. 3, 4, & 5.) Again, the discovery requests directed to the Clearview Defendants
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`largely pertain to issues relating to Plaintiffs’ review of Clearview’s source code and could have
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`been served long before the final stages of fact discovery if Plaintiffs had acted diligently in their
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`review of the source code.
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`That Plaintiffs now seek to extend the time to serve even more written discovery (through
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`October 1, 2022) only shows that Plaintiffs seek to impose additional overbroad and burdensome
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`discovery on the Clearview Defendants, increase the Clearview Defendants’ costs, and drag fact
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`discovery into a third year. (See Dkt. 441 at 14.)
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`Given this record, the Court should decline to save Plaintiffs from themselves.
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`1 The Clearview Defendants also met and conferred with Macy’s on August 30, 2022 to resolve
`any outstanding discovery issues with Macy’s. The Clearview Defendants will also complete their
`production related to Macy’s discovery requests by September 2, 2022.
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`ARGUMENT
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`I.
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`Plaintiffs Fail to Show Good Cause to Extend the Deadline for Fact Discovery.
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`“A schedule may be modified only for good cause and with the judge’s consent.” Fed. R.
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`Civ. P. 16(b)(4). “Unlike the relatively lenient ‘good cause’ standard under Rule 6, when used in
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`Rule 16(b)(4), case law establishes that the term ‘good cause’ imposes a much heavier burden”
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`and “focuses on diligence.” Signal Fin. Holdings LLC v. Looking Glass Fin. LLC, 2021 WL
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`4935979, at *2 (N.D. Ill. Mar. 22, 2021) (citation omitted). As the moving party, “Plaintiffs bear
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`the burden to establish their diligence.” Id. (citation and alterations omitted). “When a party fails
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`to secure discoverable evidence due to his own lack of diligence, it is not an abuse of discretion
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`for the trial court to refuse to grant a continuance to obtain such information.” Lake v. Fairview
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`Nursing Home, Inc., 151 F.3d 1033 (7th Cir. 1998) (affirming district court decision that “denied
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`[plaintiff’s] motion for an extension of time to complete discovery for failure to show good cause
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`or due diligence in conducting discovery”). Here, Plaintiffs have failed to establish diligence in
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`pursuing discovery. The Motion should be denied.
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`Plaintiffs argue that the discovery deadline for fact discovery should be extended because
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`“multiple document productions are ongoing” and because Plaintiffs “should not be prejudiced by
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`the fact that they successfully moved to compel the Clearview Defendants’ document production.”
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`(Dkt. 441 at 11.) Plaintiffs misrepresent the outcome of their second motion to compel, in which
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`the Court rejected several of Plaintiffs’ requests and ordered the Clearview Defendants to verify
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`the production of a small amount of data that the Clearview Defendants had previously produced
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`or already agreed to produce by September 1, 2022—well before the close of fact discovery. (See
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`Dkt. 425.) The Court was also cognizant of the September 26, 2022 fact discovery deadline when
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`it ordered the Clearview Defendants to produce documents hitting on certain search terms that are
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`relevant to the Clearview Defendants’ extraterritoriality defense by September 26. Nonetheless,
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`the Clearview Defendants told Plaintiffs that they would complete that additional production by
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`September 2—again, well before the close of fact discovery. (Ex. 1.) Plaintiffs claim they have
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`“particular concern” about this latter production, because the Clearview Defendants previously
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`argued that it would be “unduly burdensome.” (Dkt. 441 at 12.) However, the Plaintiffs fail to
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`mention that the Clearview Defendants withdrew their extraterritoriality defense with respect to
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`the California and Virginia law claims, significantly narrowing the scope of the remaining ESI
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`review. (Ex. 2.) Thus, there is now no basis (if there ever was) for Plaintiffs’ “concern.”
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`Plaintiffs also argue that other “circumstances have changed” since the Court set the final
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`discovery cutoff date of September 26, 2022. (Dkt. 441 at 2.) In particular, Plaintiffs focus on
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`issues related to the source code reviews, which Plaintiffs chose not to commence until late in
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`discovery, despite the availability of these reviews beginning in October 2021 and several prior
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`invitations from the Clearview Defendants dating back to December 2021. Plaintiffs attempt to
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`shift blame to the Clearview Defendants for their delay. (Id. at 6-7.) But it was Plaintiffs who
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`failed to raise any issues related to the source code review in their November 15, 2021 motion to
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`compel (or for months thereafter), and instead waited seven months from the time the Court entered
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`the Agreed Amended Confidentiality Order to pursue their first source code review. Moreover,
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`there has never been a limit on the number of source code reviews Plaintiffs could perform, and
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`nothing stopped them from proceeding with their reviews before the Clearview Defendants
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`produced every document responsive to Request No. 15—particularly where Plaintiffs’ counsel is
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`lead counsel in several other BIPA cases and should have experience with source code reviews
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`and the time involved to complete them.2
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`2 See, e.g., Vance, et al. v. Microsoft, Inc., No. 20-CV-01082 (W.D. Wash.) (Oct. 7, 2021) (Dkt.
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`Plaintiffs also concede that they have spent ten days reviewing Clearview’s source code.
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`They provide no hint as to why those 10 days were insufficient, or how many additional days of
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`review they purport to need, beyond stating the review is “ongoing.” (Id.) Following the denial
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`of their belated August 1, 2022 motion to de-designate Clearview’s highly confidential source
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`code, Plaintiffs now state that they intend to file another belated motion to modify the fully-
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`negotiated Confidentiality Order that has been in place for nearly a year to raise issues that the
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`parties already discussed at length over two months ago. (See Dkts. 392-8; 441 at 7.) These
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`motions appear to be strategically timed to manufacture a basis to extend the discovery timetable,
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`but do not amount to good cause to alter the Court’s schedule.
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`Plaintiffs then describe several “pending discovery issues” that relate to Plaintiffs’ review
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`of Clearview’s source code and that Plaintiffs could have raised many months ago. (Dkt. 441 at
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`7-9.)
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` First, Plaintiffs argue that the Clearview Defendants must run “text searches” on its
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`databases. (Id. at 7.) The Clearview Defendants have repeatedly explained that the
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`current databases used in Clearview’s operations cannot run the “text searches”
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`Plaintiffs seek. Plaintiffs have now demanded that the Clearview Defendants restore a
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`defunct database and incorporate new source code to see if it would be possible to
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`perform text searches, even though that old database was not designed to run text
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`searches (and the Clearview Defendants have never done so). (Ex. 6.) The Clearview
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`Defendants already produced information about the named Plaintiffs based on the
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`methodology available, using Plaintiffs’ photographs.
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`70), at 2-3 (noting that the case will involve “expert analysis of the source code underlying the . . .
`Defendant’s commercial facial recognition productions”); Vance, et al. v. Amazon.com, Inc., No.
`20-CV-01084 (W.D. Wash.) (Oct. 7, 2021) (Dkt. 51), at 2-3 (same).
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` Second, Plaintiffs claim that they are entitled to documents related to “any training and
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`testing . . . in connection with [Clearview’s] technology.” (Id. at 8.) Contrary to
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`Plaintiffs’ contentions, this issue was raised in their first motion to compel filed on
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`November 15, 2021, where Plaintiffs sought “documents related to the way in which
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`Defendants ‘trained’ their software” and the “claimed high identification accuracy
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`rate.” (Dkt. 213 at 9-10.) The Court ruled on this issue, ordering the Clearview
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`Defendants to produce “documents sufficient to identify whether Plaintiffs’ images
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`were used in connection with the training of Defendants’ technology.” (Dkt. 237 at
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`10.) The Clearview Defendants were not obligated to produce more, then or now.
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`Plaintiffs recently raised the issue again in an August 16, 2022 email, followed by new
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`discovery requests on August 24, 2022. (Ex. 4.) This does not constitute good cause
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`to extend the discovery deadline.
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` Third, Plaintiffs state that they asked Clearview to “produce the Source Code as it
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`existed on various dates” and for Clearview to “confirm that the produced Source Code
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`is representative of the Source Code for the time period January 1, 2015 to the present.”
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`(Dkt. 441 at 9.) It remains unclear what Plaintiffs seek in their request for a
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`representation that the source code from the various dates that Plaintiffs selected is
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`“representative” of the source code for the entire period of January 1, 2015 to the
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`present. The Clearview Defendants offered to provide Plaintiffs with the source code
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`in a format that would allow Plaintiffs’ expert to review the source code as of any date.
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`However, Plaintiffs refused and stated that they wanted to only review the source code
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`as of certain dates. (Dkt. 441-6 at 4-5.) Plaintiffs unilaterally decided to not review
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`the entire source code base, so their now belated and vague request for a representation
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`that the source code on the various dates selected by Plaintiffs is “representative” of
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`Clearview’s entire source code from January 1, 2015 to the present is not good cause
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`to extend the time for fact discovery.
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`Plaintiffs also point to an incident of alleged spoliation involving Macy’s as a basis for an extension
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`of fact discovery, but again fail to explain why discovery related to this issue—which they learned
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`about two months ago (Dkt. 441 at 6)—cannot be completed by the September 26, 2022 cutoff, or
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`why this narrow issue warrants a wholesale extension of fact discovery as to all Defendants
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`concerning unrelated issues. In sum, Plaintiffs fail to account for their lack of diligence, and none
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`of these issues provides a reason to extend the fact discovery deadline.
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`II.
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`Plaintiffs’ Request for Additional Depositions Should Be Denied.
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`The parties are presumptively limited to 10 depositions each, due to counsel’s “professional
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`obligation to develop a mutual cost-effective [discovery] plan.” Lohmeier v. Gottlieb Mem’l
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`Hosp., 2021 WL 5005722, at *2 (N.D. Ill. Oct. 28, 2021) (citing Fed. R. Civ. P. 30(a)(2) & advisory
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`committee’s note to 1993 amendment). A “party seeking to take additional depositions must make
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`a particularized showing for the need for such depositions.” PeopleFlo Mfg., Inc. v. Sundyne, LLC,
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`2022 WL 1062706, at *2 (N.D. Ill. Apr. 8, 2022) (quoting Farris v. Kohlrus, 2020 WL 10691950,
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`at *3 (C.D. Ill. June 12, 2020)). And “courts often refuse to expand upon the 10-deposition limit
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`while a party still has depositions available to it precisely because it is difficult to establish
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`necessity for such a departure when opportunities to take depositions without leave of court
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`remain.” Id. at *4 (denying motion for leave to take more than 10 depositions where the plaintiff
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`“cannot make the showing it needs to convince the court to permit additional depositions because
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`it has completed only one” out of ten depositions and so was “forced to speculate as to the
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`importance and value of going beyond the 10-deposition limit.”).
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`Plaintiffs simply state that they require 20 depositions because 10 depositions would only
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`leave them with two additional depositions after deposing the named defendants—assuming
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`without explanation that the five named corporate entities (including three affiliated Macy’s
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`entities) would require them to take five separate 30(b)(6) depositions. And Plaintiffs make no
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`effort to demonstrate a particularized need for more than two nonparty depositions—much less a
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`need for twelve nonparty depositions. See id. at *3-4 (denying request for additional depositions
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`where the plaintiff did not explain why the testimony of 14 additional target deponents was
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`“‘critical’ to resolving the claims and defenses in this case”). Where Plaintiffs have yet to take a
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`single discovery deposition, they cannot satisfy their burden to justify taking 20 depositions. Id.;
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`Nordock, Inc. v. Sys., Inc., 2018 WL 1135653, at *2 (E.D. Wis. Feb. 28, 2018) (denying motion
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`because the plaintiff “still ha[d] two depositions . . . unused” and “failed to demonstrate that two
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`depositions . . . are insufficient”); Farris, 2020 WL 10691950, at *2 (noting that the court
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`previously denied motion “because [the plaintiff] had only taken two depositions”).
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`Courts have also denied motions for leave to take more than 10 depositions when brought
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`as a delay tactic on the verge of the deadline for fact discovery. See, e.g., LKQ Corp. v. Gen.
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`Motors Co., 2021 WL 4125097, at *3 (N.D. Ill. Sept. 9, 2021) (denying motion for leave to take
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`eight additional depositions “in the last five weeks of discovery” after having after having waited
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`until two to three months prior to notice its allotted 10 depositions). Here, Plaintiffs never raised
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`this issue with the Clearview Defendants before filing their motion, nor have they identified the
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`specific individuals they seek to depose. Plaintiffs’ request for three additional months to take 20
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`depositions—when they have yet to notice a single deposition, less than four weeks out from the
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`fact discovery deadline—smacks of being a delay tactic.
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`14
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`

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`Case: 1:21-cv-00135 Document #: 444 Filed: 08/30/22 Page 15 of 16 PageID #:9409
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`Plaintiffs clearly have no intention of meeting the Court’s “FINAL” fact discovery deadline
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`and are looking for any means to extend it. The Motion should be denied.
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`CONCLUSION
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`WHEREFORE, for the foregoing reasons, the Clearview Defendants respectfully request
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`that the Court deny Plaintiffs’ Motion to Extend the Fact Discovery Deadline and to Increase the
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`Number of Depositions Permitted Under Fed. R. Civ. P. 30(a)(2).
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`
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`August 30, 2022
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`Respectfully submitted,
`
`By: /s/ Precious S. Jacobs-Perry ______
`
`Lee Wolosky (pro hac vice)
`Andrew J. Lichtman (pro hac vice)
`JENNER & BLOCK LLP
`919 Third Avenue
`New York, New York 10022-3908
`Phone: (212) 891-1600
`lwolosky@jenner.com
`alichtman@jenner.com
`
`Howard S. Suskin
`Precious S. Jacobs-Perry
`JENNER & BLOCK LLP
`353 North Clark Street
`Chicago, Illinois 60654
`Phone: (312) 222-9350
`hsuskin@jenner.com
`pjacobs-perry@jenner.com
`
`Attorneys for Defendants Clearview
`AI, Inc., Hoan Ton-That, Richard
`Schwartz, Thomas Mulcaire, and
`Rocky Mountain Data Analytics LLC
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`
`
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`15
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`

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`Case: 1:21-cv-00135 Document #: 444 Filed: 08/30/22 Page 16 of 16 PageID #:9410
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`CERTIFICATE OF SERVICE
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`I certify that on August 30, 2022, I electronically filed the foregoing with the Clerk of Court
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`using the CM/ECF system, which will send a Notice of Electronic Filing to all counsel of record.
`
`
`
`
`
`
`By: /s/ Precious S. Jacobs-Perry
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`16
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`