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`Case 2:20-cv-01082-JLR Document 107 Filed 01/10/22 Page 1 of 14
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`
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`The Honorable James L. Robart
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
` 2:20-cv-01082-JLR
`
`PLAINTIFFS’ FED. R. CIV. P.
`56(D) MOTION TO DENY OR
`STRIKE DEFENDANT’S
`SUMMARY JUDGMENT
`MOTION TO ALLOW TIME FOR
`NECESSARY DISCOVERY
`
`NOTE ON MOTION CALENDAR:
`January 21, 2022
`
`ORAL ARGUMENT REQUESTED
`
`
`
`STEVEN VANCE, et al.,
`
`
`Plaintiffs,
`
`v.
`
`
`MICROSOFT CORPORATION,
`
`
`Defendant.
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`
`
`
`
`PLAINTIFFS’ FED. R. CIV. P. 56(D) MOTION
`(2:20-cv-01082-JLR)
`
`LOEVY & LOEVY
`100 S. King Street., #100
`Seattle, Washington 98104
`T: 312-243-5900; Fax: 312-243-5902
`
`

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`Case 2:20-cv-01082-JLR Document 107 Filed 01/10/22 Page 2 of 14
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`Pursuant to Federal Rule of Civil Procedure 56(d) and the Court’s January 3, 2022 Minute
`Order (Dkt. 98), Plaintiffs Steven Vance and Tim Janecyk (collectively, “Plaintiffs”) hereby move
`the Court for an Order denying or striking Defendant Microsoft Corporation’s Motion for
`Summary Judgment (Dkt. 84) without prejudice to allow Plaintiffs time to obtain necessary
`discovery. In support of this motion, Plaintiffs state as follows:
`INTRODUCTION
`On December 10, 2021, Defendant Microsoft Corporation (“Defendant” or “Microsoft”)
`
`prematurely moved for summary judgment, contending that: (a) Illinois’ Biometric Information
`Privacy Act (“BIPA”) “does not apply extraterritorially here because Microsoft did not engage in
`any action in Illinois . . . .”; (b) applying BIPA here would violate the Dormant Commerce Clause;
`and (c) Plaintiffs have no unjust enrichment claim because Defendant did not use the biometric
`identifiers and information (collectively, “biometrics”) in the biometric dataset at issue (the
`“Dataset”) at all. See Dkt. 84 at 7, 22.1 Discovery is ongoing, and there is no discovery cutoff date.
`
`Even though Plaintiffs have continuously pursued discovery throughout the case, they
`currently cannot present facts essential to justify their opposition to Defendant’s summary
`judgment motion. Despite Plaintiffs having served discovery seeking information regarding
`Defendant’s conduct in Illinois and its unjust enrichment, Defendant has not provided complete
`responses, and in some instances, has not provided substantive responses at all. Because Defendant
`has yet to provide proper responses to Plaintiffs’ written discovery, Plaintiffs have not yet begun
`taking non-class certification depositions.
`
`Submitted in connection with this motion is the Declaration of Scott R. Drury which
`specifically identifies the relevant information Plaintiffs seek and sets forth the basis for believing
`that the information sought actually exists. Based on that declaration, and because this motion is
`timely, this Court should grant this motion, deny or strike Defendant’s motion without prejudice
`
`
`1 Citations to docketed entries are to the CM/ECF-stamped page numbers at the top of the page.
`
`PLAINTIFFS’ FED. R. CIV. P. 56(D) MOTION
`(2:20-cv-01082-JLR) - 1
`
`LOEVY & LOEVY
`100 S. King Street., #100
`Seattle, Washington 98104
`T: 312-243-5900; Fax: 312-243-5902
`
`

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`Case 2:20-cv-01082-JLR Document 107 Filed 01/10/22 Page 3 of 14
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`and grant Plaintiffs sufficient time – which Plaintiffs respectfully suggest should not be less than
`180 days – to complete the discovery needed to oppose the motion.
` FACTUAL BACKGROUND
`Plaintiffs have pending claims against Defendant for: (a) collecting and obtaining the
`
`biometrics of Plaintiffs and class members without providing written notice or obtaining written
`consent in violation of BIPA § 15(b), 740 Ill. Comp. Stat. 14/15(b); and (b) unjust enrichment. See
`Dkt. 1 (Complaint), 43 (Order on Motion to Dismiss), 47 (Supplemental Motion to Dismiss Order).
`Defendant obtained the biometrics at issue when it downloaded the Dataset from a link provided
`by International Business Machines Corporation (“IBM”). Dkt. 1 ¶¶ 40-44, 55-58. IBM created
`the Dataset by performing facial geometric scans on photographs that had been uploaded to Flickr
`(a photograph-sharing website), including Plaintiffs’ photographs. Id. ¶¶ 28-32, 40-44. At relevant
`times, Plaintiffs were and remain Illinois residents, and uploaded the photographs to Flickr from
`their computers in Illinois. Id. ¶¶ 60-62, 69-70. Defendant used the Dataset to improve its facial
`recognition software and generate profits. Id. ¶¶ 52-59, 77. Defendant failed to notify or receive
`the consent of the individuals appearing in the photographs regarding the collection of their
`biometrics. Id. ¶¶ 43, 45-46, 64-66, 72-74, 94.
`
`Defendant previously sought dismissal of Plaintiffs’ claims on the same grounds presented
`in its summary judgment motion, namely, that: (a) BIPA, as applied to this case, violated Illinois’
`extraterritoriality doctrine and the Dormant Commerce Clause; and (b) Plaintiffs failed to state a
`claim for unjust enrichment. See Dkt. 25 at 12-30. The Court rejected each of those contentions.
`Dkt. 43 at 6-19; Dkt. 47 at 12-21. In rejecting Defendant’s extraterritoriality argument, this Court
`found, inter alia, that such a determination required a “highly fact-based analysis.” See Dkt. 43 at
`7, quoting Avery v. State Farm Mut. Auto. Ins. Co., 853 N.E.2d 801, 854 (Ill. 2005). Similarly, in
`rejecting Defendant’s Dormant Commerce Clause argument, the Court, again, found that the
`analysis was fact-based and that it needed “more information about the technology behind how
`Microsoft obtained, stores or uses the [Dataset]” before determining whether BIPA, as applied to
`this case, violates the Dormant Commerce Clause. Id. at 11-12. Regarding the remaining claim,
`
`PLAINTIFFS’ FED. R. CIV. P. 56(D) MOTION
`(2:20-cv-01082-JLR) - 2
`
`LOEVY & LOEVY
`100 S. King Street., #100
`Seattle, Washington 98104
`T: 312-243-5900; Fax: 312-243-5902
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`

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`Case 2:20-cv-01082-JLR Document 107 Filed 01/10/22 Page 4 of 14
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`the Court found that Plaintiffs properly pleaded an unjust enrichment under Illinois law. Dkt. 47
`at 20.
`
`Legal Standards.
`
`ARGUMENT
`
`Federal Rule of Civil Procedure 56(d) sets forth a procedure for a party against whom a
`
`I.
`
`
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`motion for summary judgment has been filed to seek a continuance pending completion of
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`discovery. See Fed. R. Civ. P. 56(d); see also Burlington N. Santa Fe R.R. Co. v. Assiniboine and
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`Sioux Tribes of the Fort Peck Res. (“Burlington”), 323 F.3d 767, 773 (9th Cir. 2003). Pursuant to
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`Rule 56(d), “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot
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`present facts essential to justify its opposition, the court may: (1) defer considering the motion or
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`deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any
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`other appropriate order.” Id.
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`
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`Where a party opposing summary judgment “makes (a) a timely application which (b)
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`specifically identifies (c) relevant information, (d) where there is some basis for believing that the
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`information sought actually exists,” a court should grant its request for relief under Rule 56(d).
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`See Atigeo LLC v. Offshore Ltd. D., No. C13-1694JLR, 2014 WL 1494062, at * 3 (W.D. Wash.
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`Apr. 16, 2014) (internal quotation marks and citations omitted); see also Burlington, 323 F.3d at
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`774-75. Unless a non-movant has not diligently pursued discovery, a court should grant a request
`
`for a continuance of a summary judgment motion for purposes of discovery “almost as matter of
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`course.” Burlington, 323 F.3d at 773-74 (internal quotation marks and citations omitted); see also
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`Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001) (noting that the Supreme Court
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`has restated Rule 56(d) as requiring, not merely permitting, discovery where the nonmovant has
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`not had the chance to discover essential information).
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`
`
`
`
`PLAINTIFFS’ FED. R. CIV. P. 56(D) MOTION
`(2:20-cv-01082-JLR) - 3
`
`LOEVY & LOEVY
`100 S. King Street., #100
`Seattle, Washington 98104
`T: 312-243-5900; Fax: 312-243-5902
`
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`Case 2:20-cv-01082-JLR Document 107 Filed 01/10/22 Page 5 of 14
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`II.
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`
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`Defendant Agrees that Plaintiffs Are Entitled to Some Discovery.
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`Prior to filing this motion, Plaintiffs met and conferred with defense counsel regarding the
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`discovery Plaintiffs need to respond to Defendant’s summary judgment motion. Drury Decl. ¶ 32.
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`During the meet and confer, defense counsel stated that they had no objection to Plaintiffs deposing
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`the non-attorney witnesses who submitted declarations in support of the summary judgment
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`motion. Id. Defendant further agreed to produce documents relied on by those witnesses in
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`connection with preparing their declarations. Id.
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`III.
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`
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`Plaintiffs Satisfy All Four Requirements for Relief Under Rule 56(d).
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`A.
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`Plaintiffs’ Request Is Timely.
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`This motion is timely. Discovery is ongoing, and no dates have been set for overall
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`discovery cutoff, dispositive motions or trial.2 See Dkt. 58. The initial Order Setting Trial Date
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`and Related Dates in this matter was entered on October 21, 2020. Dkt. 33. Shortly thereafter, on
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`November 5, 2020, Plaintiffs served interrogatories and requests for production on Defendant.
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`Drury Decl. ¶ 2 and Ex. A (first interrogatories), Ex. B (first production requests). Plaintiffs have
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`continued to actively pursue discovery throughout, including: (a) serving a second set of
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`interrogatories and requests for production (id. ¶ 5 and Ex. E (second interrogatories), Ex. F
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`(second production requests); (b) serving numerous third-party subpoenas (id. ¶ 10); and (c)
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`deposing Michele Merler, one of the IBM employees who developed the Dataset. Id. ¶ 13. In
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`addition to their own documents, Plaintiffs have produced over 500,000 pages of documents
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`obtained from third parties. Id. ¶ 11.
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`
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`On May 17, 2021, the Court entered the parties’ stipulated scheduling order in which it set
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`a schedule for class certification-related events and vacated all other deadlines (including the
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`2 Class certification discovery closed on September 13, 2021. Dkt. 68 at 2.
`
`PLAINTIFFS’ FED. R. CIV. P. 56(D) MOTION
`(2:20-cv-01082-JLR) - 4
`
`LOEVY & LOEVY
`100 S. King Street., #100
`Seattle, Washington 98104
`T: 312-243-5900; Fax: 312-243-5902
`
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`Case 2:20-cv-01082-JLR Document 107 Filed 01/10/22 Page 6 of 14
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`deadlines for fact and expert discovery and dispositive motions), with those other deadlines “to be
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`set by [the] Court after [any] class certification motion.” Dkt. 57. After the entry of the May 17,
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`2021 Scheduling Order, Plaintiffs’ diligently pursued completion of class certification discovery
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`and the preparation of their class certification motion (see Dkt. 70), while also seeking to move
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`discovery forward. Drury Decl. ¶ 17.
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`Further, prior to the original date for Plaintiffs’ response to the summary judgment motion
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`(January 10, 2022), Plaintiffs raised the issue of modifying the briefing schedule with defense
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`counsel, and the parties jointly contacted the Court. In its January 3, 2022 Minute Order, the Court
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`directed Plaintiffs to file any Rule 56(d) motion by January 10, 2022 (Dkt. 98), which they have
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`done.
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`
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`Based on the above-describe facts, this motion is timely. See Atigeo, 2014 WL 1494062,
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`at *3 (motion timely where filed well before discovery cutoff); Cywee Grp. Ltd. v. HTC Corp.,
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`No. C17-0932JLR, 2019 WL 3860303, at *4 (W.D. Wash. Aug. 16, 2019) (motion timely because
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`filed within time to oppose summary judgment motion); Volvo Const. Equip. N.A., LLC v.
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`Clyde/West, Inc., No. C14-0534JLR, 2014 WL 5365454, at *3 (W.D. Wash. Oct. 20, 2014)
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`(motion timely where plaintiff actively participated in discovery, and motion filed in advance of
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`discovery cutoff).
`
`B.
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`Plaintiffs’ Specifically Identify the Essential and Relevant Information They
`Seek to Oppose Defendant’s Motion.
`
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`Plaintiffs specifically identify the essential information they seek to oppose Defendant’s
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`
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`motion in the Declaration of Scott R. Drury. See Drury Decl. ¶¶ 30-31. In summary, Plaintiffs seek
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`the following categories of information: (a) information regarding the download, storage and
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`transfer of each Dataset obtained by Defendant, as well as the destruction of data related thereto;
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`(b) information regarding who had access to the Dataset; and (c) information regarding
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`PLAINTIFFS’ FED. R. CIV. P. 56(D) MOTION
`(2:20-cv-01082-JLR) - 5
`
`LOEVY & LOEVY
`100 S. King Street., #100
`Seattle, Washington 98104
`T: 312-243-5900; Fax: 312-243-5902
`
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`Case 2:20-cv-01082-JLR Document 107 Filed 01/10/22 Page 7 of 14
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`Defendant’s use of the Dataset. See id. The information is essential and relevant to Plaintiffs’
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`opposition to Defendant’s extraterritoriality, Dormant Commerce Clause and unjust enrichment
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`arguments. This is especially true given that Defendant has only produced 595 pages of documents
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`in this case (id. ¶ 19) and prematurely filed its summary judgment motion in a transparent effort
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`to try to bring this case to an end before Plaintiffs have a chance to complete discovery.
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`Defendant’s Extraterritoriality Defense.
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`1.
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`Defendant’s extraterritoriality defense hinges on whether Defendant’s alleged BIPA
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`
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`violations “occur[red] primarily and substantially in Illinois.” See Dkt. 43 (motion to dismiss
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`order) at 6, quoting Avery, 835 N.E.2d at 853. This Court has found that in determining whether a
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`transaction occurs within Illinois “[c]ourts consider a myriad of factors, including the plaintiff’s
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`residency, the location of the harm, where communications between the parties occurred, and
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`where a company is carrying out the aggrieved policy.” See id. at 7. With respect to transactions
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`occurring on the internet, the Court found that “courts may need to consider Internet-specific
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`factors, such as where the site or information was accessed, or where the corporation operates the
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`online practice.” Id.
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`According to Defendant, it did not engage in any conduct in Illinois, let alone “primarily
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`and substantially” in Illinois. Dkt. 84 at 7; see also id. at 17. In contrast, Plaintiffs maintain that
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`the combination of: (a) their Illinois residency; (b) the fact that relevant photographs were taken,
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`and/or uploaded to Flickr, in Illinois; (c) Defendant’s failure to provide them with notice or obtain
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`their consent in Illinois to obtain their biometrics; and (d) Defendant’s invasion of, or trespass on,
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`their private domains in Illinois, see Bryant v. Compass Grp USA, Inc., 958 F.3d 617, 624 (7th
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`Cir. 2020), defeats Defendant’s extraterritoriality defense. However, because Plaintiffs do not
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`know what weight the Court will place on any factor, it is essential that Plaintiffs develop all facts
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`PLAINTIFFS’ FED. R. CIV. P. 56(D) MOTION
`(2:20-cv-01082-JLR) - 6
`
`LOEVY & LOEVY
`100 S. King Street., #100
`Seattle, Washington 98104
`T: 312-243-5900; Fax: 312-243-5902
`
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`Case 2:20-cv-01082-JLR Document 107 Filed 01/10/22 Page 8 of 14
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`regarding Defendant’s Illinois conduct – including facts regarding the location to which Defendant
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`downloaded and stored the Dataset.
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`In its motion, Defendant acknowledges that it obtained two separate copies of the Dataset
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`– one obtained by Benjamin Skrainka (a Microsoft contractor), and one obtained by Samira Samadi
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`(a Microsoft intern). See Dkt. 84 at 11, 13, 16. Defendant concedes that if either of the copies was
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`downloaded to or stored on Defendant’s cloud storage service – OneDrive – “the file would have
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`been chunked (i.e., divided into non-overlapping packets of data bits . . . .) and encrypted . . . . The
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`encrypted chunks would have then been stored in data centers, likely in San Antonio, Texas, and
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`Chicago Illinois.” Id. at 17-18 (emphasis added). While Defendant states that it has no reason to
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`believe that either copy was stored to OneDrive (id. at 17), the statement ignores the evidence.
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`In March 2019, Plaintiffs served a document subpoena on Mr. Skrainka requesting
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`documents related to work he performed for Defendant related to the Dataset or facial recognition.
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`Drury Decl. ¶¶ 10, 22 and Ex. K. On March 19, 2021, Mr. Skrainka sent Plaintiffs’ counsel an
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`email in which he unequivocally wrote that he performed all of his work in the cloud and that all
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`data that he obtained in connection with his work at Microsoft was loaded onto virtual machines
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`and cloud storage:
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`Under the direction of Microsoft, I conducted my work in line with their security
`requirements which included maintaining no written records and performing all
`work in the cloud. I never downloaded any facial-recognition work that I performed
`for Microsoft on any computer device that has ever been in my possession, and all
`data was loaded only onto virtual machines and cloud storage in Azure.
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`Id. ¶ 22 and Ex. L (Skrainka response) (emphasis added).
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`
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`As for Ms. Samadi, Defendant’s own summary judgment evidence indicates that she, too,
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`may have downloaded and/or stored the Dataset on OneDrive for a period of time. See Dkt. 88 at
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`19 (Samadi email chain). In a March 11, 2019 email titled “OneDrive Premium” sent by Ms.
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`PLAINTIFFS’ FED. R. CIV. P. 56(D) MOTION
`(2:20-cv-01082-JLR) - 7
`
`LOEVY & LOEVY
`100 S. King Street., #100
`Seattle, Washington 98104
`T: 312-243-5900; Fax: 312-243-5902
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`Case 2:20-cv-01082-JLR Document 107 Filed 01/10/22 Page 9 of 14
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`Samadi to a Microsoft information technology support employee, Ms. Samadi requested to
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`upgrade to “premium,” noting that she had downloaded big datasets and that her OneDrive was
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`full:
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`For my project here I work with big data sets, which I have downloaded and look
`into. My OneDrive is full right now and I was wondering if I can update to
`premium? Also, how much does OneDrive use up the space on my PC? I’m
`wondering how much limited I am by the fact that the space on my PC is 500 gig
`total. […]
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`Dkt. 88 at 19. Notably, Ms. Samadi sent this email two weeks after she downloaded the Dataset.
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`See Dkt. 88 ¶ 6 (download on Feb. 25, 2019). In response, the support employee stated that his
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`preference was that Ms. Samadi start using a local server in New York. See id.; see also Dkt. 93
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`(Chirico Decl. ¶ 2-3). Defendant did not produce Ms. Samadi’s email until October 28, 2021 (id.
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`¶ 23), even though Plaintiffs served their discovery requests in November 2020. Drury Decl. ¶ 23.
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`Based on the above, it is essential that Plaintiffs be permitted to obtain discovery regarding
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`the download and storage of the Dataset to show the Illinois connection. Because Defendant
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`contends that the Dataset was deleted from storage media where it may have been located (see
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`Dkt. 84 at 12, 14), it is necessary for Plaintiffs to obtain all information regarding the destruction
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`of that evidence, including data retention policies, document destruction/data deletion logs and a
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`forensic copy/forensic inspection of the OneDrive server that stored each copy of the Dataset, as
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`well as a forensic copy of each storage medium that Defendant searched for the Datasets (see Dkt.
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`92 (Bruenke Decl.) ¶ 5).
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`As discussed in the Drury Declaration, other discovery needed related to Defendant’s
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`extraterritoriality defense is: (a) the identification of all persons who had access to the Dataset and
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`the location(s) from which they worked; and (b) the identification of all facial recognition
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`PLAINTIFFS’ FED. R. CIV. P. 56(D) MOTION
`(2:20-cv-01082-JLR) - 8
`
`LOEVY & LOEVY
`100 S. King Street., #100
`Seattle, Washington 98104
`T: 312-243-5900; Fax: 312-243-5902
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`Case 2:20-cv-01082-JLR Document 107 Filed 01/10/22 Page 10 of 14
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`vendors/partners in Illinois with whom Defendant worked on facial recognition products and
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`technology.
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`2.
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`Defendant’s Dormant Commerce Clause Defense.
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`A similar analysis applies to Defendant’s Dormant Commerce Clause defense. The
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`“Dormant Commerce Clause prohibits ‘the application of a state statute to commerce that takes
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`place wholly outside of the State’s borders, whether or not the commerce has effects within the
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`state.’” Dkt. 43 at 11, quoting Healy v. Beer Inst., 491 U.S. 324, 336 (1989) (emphasis added). As
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`this Court has found, Defendant’s “Dormant Commerce Clause argument is directly related to the
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`extraterritoriality argument, as both hinge on where the alleged misconduct takes place.” Id.
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`Moreover, in denying Defendant’s motion to dismiss, this Court found that it “needs more
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`information about the technology behind how Microsoft obtained, stores, or uses the [Dataset].”
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`Id. (emphasis added). Thus, the same evidence that is essential and relevant to Plaintiffs’
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`opposition to the extraterritoriality defense is also essential and relevant to Plaintiffs’ opposition
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`to the Dormant Commerce Clause defense.
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`3.
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`Unjust Enrichment.
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`With respect to Plaintiffs’ discovery efforts in connection with their unjust enrichment
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`claim, Defendant has essentially stonewalled. Plaintiffs have propounded numerous discovery
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`requests seeking information regarding, inter alia, improvements to Defendant’s facial recognition
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`technology and products after obtaining the Dataset, earnings generated from its facial recognition
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`technology and products before and after it obtained the Dataset, and the source code for its facial
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`recognition technology and products before and after it obtained the Dataset. Drury Decl. ¶¶ 14-
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`15 and Ex. A at Interrogatories 13-15, 21; Ex. B at RFPs 6-7, 15, 30-33, 38-40, 64. Defendant has
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`not produced those requested documents or the requested information. Id. ¶ 14. According to
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`PLAINTIFFS’ FED. R. CIV. P. 56(D) MOTION
`(2:20-cv-01082-JLR) - 9
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`LOEVY & LOEVY
`100 S. King Street., #100
`Seattle, Washington 98104
`T: 312-243-5900; Fax: 312-243-5902
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`Case 2:20-cv-01082-JLR Document 107 Filed 01/10/22 Page 11 of 14
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`Defendant, it need not produce responsive information because, based on a non-descript purported
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`“preliminary investigation” that it conducted, it determined that it did not use the Dataset. See,
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`e.g., id. at Exs. C-D, G-H.
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`As a threshold matter and as shown above, Defendant cannot be taken at its word. Indeed,
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`Defendant’s preliminary investigation also purportedly showed that Defendant “has been unable
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`to find any information suggesting Microsoft engaged in any conduct in Illinois related to the
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`Dataset.” Id. However, as discussed above, the evidence shows otherwise.
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`Further, in various declarations, the witnesses make unsupported and conclusory assertions
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`that they were not aware of the Dataset being used by anyone in their group (other than Mr.
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`Skrainka or Ms. Samadi) or any other group or team at Microsoft. See Dkt. 87 (Skrainka Decl.) ¶
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`12; Dkt. 88 (Samadi Decl.) ¶ 12; Dkt. 89 (Vaughn Decl. ¶¶ 10-11); Dkt. 91 (Kasap Decl.) ¶ 7.
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`Other than Mr. Kasap claiming he would know if anyone in his group used the Dataset based on
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`his position, the witnesses do not provide a proper foundation for why they would be aware of who
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`used the Dataset, and they do not identify all of the members of their own groups or the names of
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`the other groups/teams to which they are referring. Defendant’s discovery responses do not provide
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`the missing information. Id. ¶ 25.
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`Additional evidence indicating that Defendant utilized the Dataset is the fact that
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`Defendant kept a copy of the Dataset after Ms. Samadi left Microsoft. See Dkt. 84 at 14; Drury
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`Decl. ¶ 19; Dkt. 88 ¶ 2. Moreover, while one of the declarants states without foundation that only
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`the persons listed on the email regarding Samadi saving the Dataset to a local New York server
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`knew where the Dataset was located (see Dkt. 93 ¶ 3), one of those persons – Hannah Wallach
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`(see Dkt. 88 at 19) – has not submitted a declaration.
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`PLAINTIFFS’ FED. R. CIV. P. 56(D) MOTION
`(2:20-cv-01082-JLR) - 10
`
`LOEVY & LOEVY
`100 S. King Street., #100
`Seattle, Washington 98104
`T: 312-243-5900; Fax: 312-243-5902
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`Case 2:20-cv-01082-JLR Document 107 Filed 01/10/22 Page 12 of 14
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`With respect to Plaintiffs’ unjust enrichment claim, Defendant seeks to benefit from its
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`improper conduct in failing to provide proper answers to discovery by hoping the Court will let it
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`proceed to summary judgment without having to disclose critical evidence. At the same time,
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`Defendant seeks to have Plaintiffs disprove a negative – i.e., the assertion that Defendant did not
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`use the Dataset – knowing that it has concealed from Plaintiffs basic information such as who had
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`access to the Dataset. Defendant essentially has moved for summary judgment on this count
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`without any substantive discovery having taken place. As such, Plaintiffs “cannot be expected to
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`frame [their] motion with great specificity as to the kind of discovery likely to turn up useful
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`information, as the ground for such specificity has not yet been laid.” See Burlington, 323 F.3d at
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`774. At minimum, Plaintiffs are entitled to answers to their outstanding discovery requests and
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`disclosure of who within Microsoft had access to the Dataset because only those persons can know
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`if they accessed and used the Dataset.
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`IV.
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`The Court Should Deny or Strike Defendant’s Motion Without Prejudice to Provide
`Plaintiffs the Time Needed to Obtain the Necessary Discovery, Which Should Not Be
`Less Than 180 Days.
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`Given the amount of discovery Plaintiffs need to obtain before they can respond to
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`Defendant’s summary judgment motion, the Court should deny or strike Defendant’s motion
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`without prejudice. Further, the Court should grant Plaintiffs sufficient time to obtain the discovery
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`at issue. Because the discovery will involve, among other things, answers to existing and new
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`discovery requests, production of documents including ESI, expert analysis of storage media and
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`multiple depositions, Plaintiffs respectively submit that the time granted to complete the discovery
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`should not be less than 180 days.
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`PLAINTIFFS’ FED. R. CIV. P. 56(D) MOTION
`(2:20-cv-01082-JLR) - 11
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`LOEVY & LOEVY
`100 S. King Street., #100
`Seattle, Washington 98104
`T: 312-243-5900; Fax: 312-243-5902
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`Case 2:20-cv-01082-JLR Document 107 Filed 01/10/22 Page 13 of 14
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`CONCLUSION
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`Plaintiffs have sustained their burden under Rule 56(d). Accordingly, the Court should
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`grant Plaintiffs’ motion and deny or strike Defendants’ motion for summary without prejudice.
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`Further, the Court should grant Plaintiffs sufficient time to obtain the necessary discovery, which
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`Plaintiffs respectively submit should not be less than 180 days.
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`Dated: January 10, 2022
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`By: s/ Scott R. Drury
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`David B. Owens, WSBA #52856
`LOEVY & LOEVY
`100 S. King Street, Suite 100
`Seattle, WA 98104
`Telephone: (312) 243-5900
`Fax: (312) 243-5092
`Email: david@loevy.com
`
`Scott R. Drury, Admitted pro hac vice
`Mike Kanovitz, Admitted pro hac vice
`LOEVY & LOEVY
`311 N. Aberdeen, 3rd Floor
`Chicago, IL 60607
`Telephone: (312) 243-5900
`Email: drury@loevy.com
`Email: mike@loevy.com
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`By: /s/ Nicholas R. Lange .
`Katrina Carroll, Admitted pro hac vice
`Nicholas R. Lange, Admitted pro hac vice
`CARLSON LYNCH LLP
`111 West Washington Street, Suite 1240
`Chicago, Illinois 60602
`Telephone: (312) 750-1265
`Email: kcarroll@carlsonlynch.com
`Email: nlange@carlsonlynch.com
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`
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`PLAINTIFFS’ FED. R. CIV. P. 56(D) MOTION
`(2:20-cv-01082-JLR) - 12
`
`LOEVY & LOEVY
`100 S. King Street., #100
`Seattle, Washington 98104
`T: 312-243-5900; Fax: 312-243-5902
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`Case 2:20-cv-01082-JLR Document 107 Filed 01/10/22 Page 14 of 14
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`Gary Lynch, Admitted pro hac vice
`CARLSON LYNCH LLP
`1133 Penn Avenue, Floor 5
`Pittsburgh, PA 15222
`Telephone: (412) 322-9243
`Email: glynch@carlsonlynch.com
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`Attorneys for Plaintiffs
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`PLAINTIFFS’ FED. R. CIV. P. 56(D) MOTION
`(2:20-cv-01082-JLR) - 13
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`LOEVY & LOEVY
`100 S. King Street., #100
`Seattle, Washington 98104
`T: 312-243-5900; Fax: 312-243-5902
`
`