Case 2:20-cv-01082-JLR Document 111 Filed 01/18/22 Page 1 of 16
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`
`
`The Honorable James L. Robart
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`
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`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`No. 2:20-cv-01082-JLR
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`MICROSOFT’S OPPOSITION TO
`PLAINTIFFS’ FED. R. CIV. P. 56(d)
`MOTION TO DENY OR STRIKE
`SUMMARY JUDGMENT MOTION
`
`NOTE ON MOTION CALENDAR:
`January 21, 2022
`
`ORAL ARGUMENT REQUESTED
`
`STEVEN VANCE, et al.,
`
`
`Plaintiffs,
`
`v.
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`
`MICROSOFT CORPORATION,
`
`
`Defendant.
`
`
`
`
`MICROSOFT’S OPPOSITION TO RULE 56(d) MOTION
`(Case No. 2:20-cv-01082-JLR)
`4886-3771-7257v.6 0025936-003307
`
`Davis Wright Tremaine LLP
`LAW OFFICES
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
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`I.
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`II.
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`Case 2:20-cv-01082-JLR Document 111 Filed 01/18/22 Page 2 of 16
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ............................................................................................................ 1
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`FACTUAL BACKGROUND ........................................................................................... 2
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`A.
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`B.
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`C.
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`The DiF Dataset and Microsoft’s Download ........................................................ 2
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`Plaintiffs’ Lawsuit ................................................................................................. 3
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`Microsoft’s Summary Judgment Motion .............................................................. 5
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`III.
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`ARGUMENT .................................................................................................................... 6
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`A.
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`B.
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`Plaintiffs Have Not Exercised Diligence in Discovery. ........................................ 7
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`Plaintiffs Do Not Identify the Specific Facts Relevant to Summary
`Judgment That Their Far-Reaching Requests Would “Likely” Reveal. ............... 8
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`1.
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`2.
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`3.
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`BIPA and Extraterritoriality ...................................................................... 8
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`Dormant Commerce Clause .................................................................... 10
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`Unjust Enrichment .................................................................................. 10
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`IV.
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`CONCLUSION ............................................................................................................... 12
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`MICROSOFT’S OPPOSITION TO RULE 56(d) MOTION - i
`(No. 2:20-cv-01082-JLR)
`4886-3771-7257v.6 0025936-003307
`
`Davis Wright Tremaine LLP
`LAW OFFICES
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
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`Case 2:20-cv-01082-JLR Document 111 Filed 01/18/22 Page 3 of 16
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`Federal Cases
`
`TABLE OF AUTHORITIES
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`
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`Page(s)
`
`Burke v. Pro. Transp., Inc.,
`2018 WL 6107217 (W.D. Wash. 2018) ........................................................................... passim
`
`Conkle v. Jeong,
`73 F.3d 909 (9th Cir. 1995) .......................................................................................................7
`
`Dodge v. Evergreen Sch. Dist,
`513 F. Supp. 3d 1286 (W.D. Wash. 2021) ...........................................................................8, 11
`
`Landmark Dev. Corp. v. Chambers Corp.,
`752 F.2d 369 (9th Cir. 1985) .................................................................................................6, 7
`
`Margolis v. Ryan,
`140 F.3d 850 (9th Cir. 1998) .....................................................................................................6
`
`Robertson v. Cath. Cmty. Servs. of W. Wash.,
`2021 WL 2376610 (W.D. Wash. 2021) .....................................................................................8
`
`SEC v. Stein,
`906 F.3d 823 (9th Cir. 2018) ...........................................................................................6, 8, 10
`
`Shannon v. Albertelli Firm, P.C.,
`2014 WL 11309798 (N.D. Ga. Jan. 6, 2014), aff’d, 610 F. App’x 866 (11th
`Cir. 2015) .................................................................................................................................12
`
`State Farm Mut. Auto. Ins. Co. v. Adams,
`2021 WL 5810664 (W.D. Wash. 2021) .....................................................................................8
`
`State Statutes
`
`740 ILCS 14/15(b) .............................................................................................................3, 8, 9, 10
`
`Rules
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`Rule 56(d) .............................................................................................................................. passim
`
`Other Authorities
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`M. Merler, et al., DIVERSITY IN FACES, IBM Research AI at 2 (Feb. 22, 2019)
`(Dkt. 70-6)..................................................................................................................................2
`
`MICROSOFT’S OPPOSITION TO RULE 56(d) MOTION - ii
`(No. 2:20-cv-01082-JLR)
`4886-3771-7257v.6 0025936-003307
`
`Davis Wright Tremaine LLP
`LAW OFFICES
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
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`Case 2:20-cv-01082-JLR Document 111 Filed 01/18/22 Page 4 of 16
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`I.
`INTRODUCTION
`The Court should deny Plaintiffs’ Rule 56(d) Motion because Plaintiffs (a) have not
`exercised due diligence in discovery, and (b) do not identify the specific facts relevant to
`Microsoft’s Motion for Summary Judgment that their wide-ranging requests would “likely”
`reveal. Microsoft has no objection, however, to allowing Plaintiffs until March 18 to file their
`opposition brief, which will afford ample time to take depositions of Microsoft’s seven
`declarants (as well as the six declarants Amazon has offered for deposition in its case).
`Microsoft proposes to re-note its motion for April 1, when its reply brief would be due.
`This case boils down to a simple set of facts that can be addressed on this schedule,
`without the disproportionate discovery Plaintiffs’ Motion demands. In 2019, two individuals
`associated with Microsoft—one a contractor, the other an intern—downloaded IBM’s Diversity
`in Faces (“DiF”) Dataset. In short order, they decided the DiF Dataset was useless for their
`research projects, and they moved on. The contractor and the intern were in Washington and
`New York, respectively, and neither they nor their work had any connection with Illinois.
`Microsoft has provided discovery responses, documents, and declarations corroborating these
`facts. And these straightforward facts form the basis for its Motion for Summary Judgment.
`Now, after their own inexcusable delays, Plaintiffs invoke Rule 56(d) in hopes of getting
`at least six more months to engage in wide-ranging discovery before responding to Microsoft’s
`Motion. But Plaintiffs’ request relies on pure conjecture, and they fail to carry their Rule 56(d)
`burden. Plaintiffs filed this case on July 14, 2020, and discovery has been ongoing since
`November 2020. Microsoft told Plaintiffs the facts on which it relies in its Motion for Summary
`Judgment in December 2020. Plaintiffs have had more than a year to take depositions to explore
`those facts. Despite that, they now seek a delay of briefing for “not less than” six months so they
`can pursue thirteen broad categories of additional discovery, which they speculate might turn up
`something they can use to oppose Microsoft’s Motion. But Rule 56(d) requires that a party
`seeking to defer a summary judgment motion must identify specific facts discovery is likely to
`unearth and are essential to oppose the motion. Plaintiffs’ Motion falls far short of this standard.
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`MICROSOFT’S OPPOSITION TO RULE 56(d) MOTION - 1
`(No. 2:20-cv-01082-JLR)
`4886-3771-7257v.6 0025936-003307
`
`Davis Wright Tremaine LLP
`LAW OFFICES
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
`

`

`Case 2:20-cv-01082-JLR Document 111 Filed 01/18/22 Page 5 of 16
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`Microsoft does not object to Plaintiffs deposing witnesses who submitted declarations in
`support of its Motion, all but one of whom Plaintiffs have known about for at least six months.
`Further, Microsoft will produce any previously unproduced documents on which its witnesses
`relied in preparing their declarations. But for the other categories of discovery Plaintiffs
`demand, they fail to demonstrate: (1) the facts they expect to elicit from their proposed
`discovery; (2) that these facts exist; and (3) that the facts are essential to opposing Microsoft’s
`Motion. The Court should deny Plaintiffs’ Motion and adopt Microsoft’s proposed schedule.
`II.
`FACTUAL BACKGROUND
`A.
`The DiF Dataset and Microsoft’s Download
`The essential facts are undisputed. In 2018, IBM created its DiF Dataset to “advance the
`study of fairness and accuracy in face recognition technology.” M. Merler, et al., DIVERSITY IN
`FACES, IBM Research AI at 2 (Feb. 22, 2019) (Dkt. 70-6). IBM did not create the Dataset with
`an eye toward commercial applications, and it did not annotate the faces appearing in photos
`linked in the DiF Dataset for the purpose of identifying any individuals. Id. Rather, IBM created
`a facial coding scheme to provide a baseline for measuring diversity in datasets, and its data
`likely cannot be used for identification at all. See Dkt. 85 (Merler Decl.) ¶ 7. IBM made the DiF
`Dataset available to researchers only, and its DiF Dataset Terms of Use “made clear that the DiF
`Dataset could only be used for non-commercial, research purposes.” Id. ¶ 9.
`Reports indicate IBM received over 250 requests for the DiF Dataset. See Dkt. 80 at 18
`(Vance Dep. 100:18-19). Only two came from people who stated their research was related to
`Microsoft. One of those requests came from an outside contractor for Microsoft working in
`Redmond, Washington, Ben Skrainka, who told IBM he would “use the DiF Dataset to evaluate
`the bias of different facial recognition algorithms.” Dkt. 85 Ex. C at 2-3. The other came from a
`post-graduate intern at Microsoft Research in New York City, Samira Samadi, who told IBM she
`“need[ed] a diverse image data set to be able to study the effect of different factors” that affect
`“how well people can evaluate the output of a facial recognition system.” Id. Ex. D at 2-3. Both
`downloaded the DiF Dataset in February 2019.
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`MICROSOFT’S OPPOSITION TO RULE 56(d) MOTION - 2
`(No. 2:20-cv-01082-JLR)
`4886-3771-7257v.6 0025936-003307
`
`Davis Wright Tremaine LLP
`LAW OFFICES
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
`

`

`Case 2:20-cv-01082-JLR Document 111 Filed 01/18/22 Page 6 of 16
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`Neither Mr. Skrainka nor Ms. Samadi used the DiF Dataset. Each had interest only in the
`facial images in photos linked in the dataset, not in the facial annotations that are the subject of
`this lawsuit. Dkt. 87 (Skrainka Decl.) ¶¶ 4, 6; Dkt. 88 (Samadi Decl.) ¶ 8. But when they
`reviewed the DiF Dataset, each concluded the facial images lacked the characteristics they
`needed for their work—and they never even looked at the Dataset’s facial annotations. Skrainka
`Decl. ¶¶ 6-7; Samadi Decl. ¶¶ 7-8. Further, they never shared the link to the DiF Dataset with
`anyone else, and they had no knowledge of anyone else using the DiF Dataset. Skrainka Decl.
`¶ 12; Samadi Decl. ¶¶ 8, 12. Neither was even aware that the DiF Dataset “included any
`photographs or data relating to Illinois residents.” Skrainka Decl. ¶ 10; see Samadi Decl. ¶ 9.
`IBM’s records do not identify anyone else at Microsoft who downloaded the DiF Dataset.
`And Plaintiffs have never suggested they believe anyone else at Microsoft did so. Li Decl. ¶ 2.
`B.
`Plaintiffs’ Lawsuit
`In July 2020, Plaintiffs sued Microsoft, alleging it violated Section 15(b) of the Illinois
`Biometric Information Privacy Act (“BIPA”) by downloading the IBM DiF Dataset without first
`getting their consent. (Plaintiffs sued three other companies for downloading the dataset—but
`chose not to sue hundreds of others who requested it. Plaintiffs “don’t know why” they picked
`the defendants they did. Dkt. 80 at 18-19 (Vance Dep. 100:16-101:6).) Plaintiffs also claim
`Microsoft was unjustly enriched by allegedly using Plaintiffs’ biometric identifiers and
`information that allegedly appeared in the DiF Dataset. Microsoft moved to dismiss on
`September 14, 2020, arguing (among other things) that Plaintiffs were seeking an improper
`extraterritorial application of BIPA, since any alleged BIPA violations did not occur “primarily
`and substantially” in Illinois, and that application of BIPA would violate the dormant Commerce
`Clause. Dkt. 25 at 6-9. The Court denied Microsoft’s Motion on March 15, 2021, concluding
`“more factual refinement” about “the circumstances around Microsoft’s attainment, possession
`and use of the Diversity in Faces dataset” was needed. Dkt. 43 at 8.
`Plaintiffs had objected to staying discovery pending a ruling on Microsoft’s Motion to
`Dismiss, so discovery had proceeded even before the Court’s March 2021 ruling. Plaintiffs
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`MICROSOFT’S OPPOSITION TO RULE 56(d) MOTION - 3
`(No. 2:20-cv-01082-JLR)
`4886-3771-7257v.6 0025936-003307
`
`Davis Wright Tremaine LLP
`LAW OFFICES
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
`

`

`Case 2:20-cv-01082-JLR Document 111 Filed 01/18/22 Page 7 of 16
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`served Microsoft with their first interrogatories and requests for production on November 5,
`2020. See Dkts. 108-1 & 108-2. Microsoft timely responded on December 14, 2020, more than
`a year ago. See Dkts. 108-3 & 108-4. In its responses, Microsoft explained its investigation had
`shown it “downloaded the Diversity in Faces (‘DiF’) Dataset, only to determine it was unsuitable
`for Microsoft’s use. Microsoft has been unable to find information suggesting Microsoft
`collected any information from that Dataset, much less used or profited from the Dataset or
`engaged in any conduct in Illinois related to the Dataset.” Dkt. 108-3 at 1; see also id. at 12
`(“[B]eyond downloading the DiF Dataset, Microsoft has not ‘collected’ or ‘used’ the DiF Dataset
`or any information in or from it.”). Microsoft also identified four of the witnesses who filed
`declarations in support of its Motion for Summary Judgment, i.e., Benjamin Skrainka, Samira
`Samadi, Mustafa Kasap, and Jennifer Wortman Vaughan. Id. at 9-10.1
`Microsoft supplemented its answers six months ago, on July 15, 2021. The supplement
`identified more witnesses, including two (Jeffrey Chirico and Andy Bruncke) whose declarations
`support Microsoft’s Motion for Summary Judgment. Dkt. 108-9 at 5. And the supplement
`confirmed Microsoft “had no interest in, and did not review or use, any biometric identifiers or
`information included within the IBM DiF Dataset,” id. at 7, and “did not use, disclose,
`redisclose, or disseminate the DiF Dataset,” id. at 13. It also disclosed the computer equipment
`to which IBM’s DiF Dataset apparently was downloaded and where it could have been stored.
`Id. at 9-10, 15-16. Finally, Microsoft produced documents about the DiF Dataset’s brief history
`at Microsoft. These included Mr. Skrainka’s complete “Project Logs,” records of Ms. Samadi’s
`research, and documents located through ESI searches of the employees who supervised and
`worked with Mr. Skrainka and Ms. Samadi. Li Decl. ¶¶ 3-5. Because (a) Microsoft never used
`the DiF Dataset, (b) the assessment of the Dataset took little time, and (c) Mr. Skrainka and
`Ms. Samadi were associated with Microsoft for only a matter of months, Microsoft’s document
`productions encompassed only 595 pages. Id. ¶ 3.
`
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`1 Plaintiffs served Microsoft with a second set of interrogatories and request for production on February 4, 2021.
`Dkts. 108-5 & 108-6. Microsoft timely responded on March 8, 2021. Dkts. 108-7 & 108-8. Plaintiffs have not
`claimed any deficiencies with Microsoft’s responses to this set of discovery.
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`MICROSOFT’S OPPOSITION TO RULE 56(d) MOTION - 4
`(No. 2:20-cv-01082-JLR)
`4886-3771-7257v.6 0025936-003307
`
`Davis Wright Tremaine LLP
`LAW OFFICES
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
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`Case 2:20-cv-01082-JLR Document 111 Filed 01/18/22 Page 8 of 16
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`Nothing prevented Plaintiffs from engaging in discovery to test these facts. The parties
`agreed the deadline for class certification discovery “does not bifurcate discovery,” Stipulation
`Modifying Scheduling Order ¶ 9 (Dkt. 57), and the Court confirmed the class discovery deadline
`was “not to be construed as a bifurcation of discovery,” Scheduling Order at 1 (Dkt. 58).
`Microsoft repeatedly invited Plaintiffs to take depositions of Microsoft’s witnesses. Li Decl. ¶ 8.
`But Plaintiffs made no effort to do so, instead taking only a single, short deposition of an IBM
`employee, Dr. Michele Merler.
`C. Microsoft’s Summary Judgment Motion
`Having disclosed over a year ago that it never used the DiF Dataset or engaged in any
`conduct in Illinois relating to the DiF Dataset, Microsoft saw no reason to wait longer to resolve
`claims that, in its view, Plaintiffs never should have brought. Microsoft filed its Motion for
`Summary Judgment on December 10, 2021. Dkt. 84. A week later, on December 17, Plaintiffs
`emailed Microsoft’s counsel, stating they needed unspecified “extensive fact discovery” to
`oppose Microsoft’s Motion and asking Microsoft to “agree to stay briefing of [its] summary
`judgment motion[] until fact and expert discovery has closed.” Li Decl. ¶ 9. Microsoft
`responded on December 21, 2021, expressing a willingness to consider a more limited extension,
`subject to the governing standards of Rule 56(d). Id. Plaintiffs answered nine days later, on
`December 30, but failed to address the Rule 56(d) issues. Instead, they notified Microsoft of
`their intent to place a “call to [the Court’s] chambers” about the schedule. Id. After a call with
`the Court’s staff on January 3, 2022, the Court directed the parties to file a “stipulation and
`proposed order setting a revised briefing schedule for Microsoft’s motion for summary
`judgment,” specifying “the additional discovery that is necessary for Plaintiffs to respond to
`Microsoft’s motion.” Dkt. 98 ¶ 2. The Court further directed that, if the parties failed to agree,
`Plaintiffs should file a motion under Rule 56(d) by January 10, 2022. Id. ¶ 3.
`Plaintiffs waited until the last business day before the due date for their Rule 56(d)
`Motion to meet and confer with Microsoft. Li Decl. ¶ 10. During that discussion, Plaintiffs
`orally presented their discovery demands, roughly corresponding to the thirteen categories they
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`MICROSOFT’S OPPOSITION TO RULE 56(d) MOTION - 5
`(No. 2:20-cv-01082-JLR)
`4886-3771-7257v.6 0025936-003307
`
`Davis Wright Tremaine LLP
`LAW OFFICES
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
`

`

`Case 2:20-cv-01082-JLR Document 111 Filed 01/18/22 Page 9 of 16
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`now seek in their Motion. Id. Microsoft again offered to produce its declarants for deposition
`and produce any unproduced documents upon which a witness relied in preparing a declaration.
`See Dkt. 108 ¶ 32. The parties were unable to agree. On January 10, Plaintiffs filed their Rule
`56(d) Motion, asking the Court to take Microsoft’s motion off calendar for at least six months so
`they can pursue wide-ranging, burdensome, and disproportionate discovery.
`III. ARGUMENT
`Rule 56(d) requires a party seeking more time to respond to a summary judgment motion
`to make “(1) a timely application which (2) specifically identifies (3) relevant information, (4)
`where there is some basis for believing that the information sough actually exists.” Burke v. Pro.
`Transp., Inc., 2018 WL 6107217, at *3 (W.D. Wash. 2018) (Robart, J.) (quoting VISA Int’l Serv.
`Ass’n v. Bankcard Holders of Am., 784 F.2d 1472, 1475 (9th Cir. 1986)). “A Rule 56(d) ...
`declaration must identify ‘the specific facts that further discovery would reveal, and explain why
`those facts would preclude summary judgment.’” Id. (quoting SEC v. Stein, 906 F.3d 823, 833
`(9th Cir. 2018)). “The facts sought must be ‘essential’ to the party’s opposition to summary
`judgment,” and “it must be ‘likely’ that those facts will be discovered during further discovery.”
`Id. (citations omitted). Seeking evidence that is “the object of mere speculation” is “insufficient
`to satisfy the rule.” Stein, 906 F.3d at 833 (citation & internal quotation marks omitted); see also
`Margolis v. Ryan, 140 F.3d 850, 854 (9th Cir. 1998) (affirming denial of Rule 56(d) motion
`where assertions about evidence that would result from additional discovery were “based on
`nothing more than wild speculation”). Plaintiffs bear the burden “to show what material facts
`would be discovered that would preclude summary judgment.” Burke, 2018 WL 6107217, at *3
`(quoting Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988)).
`A party’s failure to diligently pursue discovery is grounds for denying a Rule 56(d)
`request. “[T]he district court does not abuse its discretion by denying further discovery [under
`Rule 56(d)] if the movant has failed diligently to pursue discovery in the past.” Id. at *2 (quoting
`Conkle v. Jeong, 73 F.3d 909, 914 (9th Cir. 1995)); Landmark Dev. Corp. v. Chambers Corp.,
`752 F.2d 369, 372-73 (9th Cir. 1985) (court did not abuse discretion in denying Rule 56(d)
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`MICROSOFT’S OPPOSITION TO RULE 56(d) MOTION - 6
`(No. 2:20-cv-01082-JLR)
`4886-3771-7257v.6 0025936-003307
`
`Davis Wright Tremaine LLP
`LAW OFFICES
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
`

`

`Case 2:20-cv-01082-JLR Document 111 Filed 01/18/22 Page 10 of 16
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`motion where moving parties did not adequately explain failure to promptly take depositions).
`A.
`Plaintiffs Have Not Exercised Diligence in Discovery.
`Plaintiffs’ lack of diligence in discovery alone supplies sufficient grounds to deny their
`request for discovery beyond what Microsoft has agreed to provide. See Conkle, 73 F.3d at 914;
`Landmark Dev. Corp., 752 F.2d at 372. Plaintiffs have not taken any Microsoft depositions,
`even though Microsoft identified its witnesses to Plaintiffs in December 2020 and July 2021, and
`repeatedly invited Plaintiffs to take their depositions. The only declarant not previously
`identified is Matthew Swann, Chief Security Architect, OneDrive + SharePoint at Microsoft,
`whose declaration addresses how the DiF Dataset would have been stored if, hypothetically, Mr.
`Skrainka or Ms. Samadi had saved it to the cloud using Microsoft’s OneDrive for Business. Dkt.
`90 (Swann Decl.) ¶¶ 4-9. And Microsoft will make Mr. Swann available for deposition.
`Aside from taking no Microsoft depositions, Plaintiffs failed to diligently pursue their
`alleged concerns about written discovery. Plaintiffs point to a “20-page, single-spaced letter”
`identifying supposed deficiencies in Microsoft’s discovery. Dkt. 108 ¶¶ 15-16. But Plaintiffs
`sent that letter on February 9, 2021, id.; the parties had extensive written and oral dialogue about
`Plaintiffs’ concerns in March and April 2021 (and beyond), see Dkt. 53 at 3-4 (detailing
`discovery discussions); and Microsoft supplemented its responses in July 2021, Dkt. 108-9.
`Plaintiffs never raised any discovery issues with the Court—even after Microsoft complained
`about Plaintiffs’ lack of diligence and urged prompt depositions in May 2021:
`Since insisting on a compressed schedule, Plaintiffs have missed the deadlines
`they pushed to get and sat idle for half the discovery period. In the meantime,
`Microsoft has provided discovery showing this case involves a simple set of
`facts: two people associated with Microsoft (neither of them employees)
`downloaded IBM’s Diversity in Faces (“DiF”) Dataset from Washington and
`New York, immediately decided it wasn’t useful, and neither used the dataset
`nor shared its contents. Microsoft has produced materials bearing on these
`brief encounters with the DiF Dataset and will make its witnesses available for
`deposition. All of this can be easily accomplished within a few months.
`Microsoft’s Resp. to Motion to Modify Scheduling Order (Dkt. 53) at 1. Plaintiffs’ lack of
`diligence, both before and after Microsoft brought it to light, is inexcusable. And it provides
`ample ground, standing alone, to deny their motion. See Burke, 2018 WL 6107217, at *3.
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`MICROSOFT’S OPPOSITION TO RULE 56(d) MOTION - 7
`(No. 2:20-cv-01082-JLR)
`4886-3771-7257v.6 0025936-003307
`
`Davis Wright Tremaine LLP
`LAW OFFICES
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
`

`

`Case 2:20-cv-01082-JLR Document 111 Filed 01/18/22 Page 11 of 16
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`B.
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`Plaintiffs Do Not Identify the Specific Facts Relevant to Summary Judgment
`That Their Far-Reaching Requests Would “Likely” Reveal.
`Plaintiffs’ Rule 56(d) declaration lists thirteen categories of discovery they want before
`opposing Microsoft’s Motion. Dkt. 108 ¶ 30. Plaintiffs, however, do not identify the facts they
`seek, make any showing those facts exist, or explain why those facts are essential to oppose
`summary judgment—all of which they must do to meet their burden under Rule 56(d). Burke,
`2018 WL 6107217, at *3. This Court, for example, has denied a plaintiff’s Rule 56(d) request
`where he made “no showing that any specific fact exists or how those facts are essential to
`oppose summary judgment.” Dodge v. Evergreen Sch. Dist, 513 F. Supp. 3d 1286, 1295 (W.D.
`Wash. 2021). “Where a motion for a continuance does not ‘identify the specific facts that further
`discovery would have revealed or explain why those facts would have precluded summary
`judgment,’ the motion is appropriately denied.” Robertson v. Cath. Cmty. Servs. of W. Wash.,
`2021 WL 2376610, at *15 (W.D. Wash. 2021) (quoting Tatum v. City & Cnty. of S.F., 441 F.3d
`1090, 1100 (9th Cir. 2006), appeal filed, No. 21-35545 (9th Cir. 2021)); see also State Farm
`Mut. Auto. Ins. Co. v. Adams, 2021 WL 5810664, at *7 (W.D. Wash. 2021) (same).
`Microsoft presents three arguments in its summary judgment motion: (1) Plaintiffs
`improperly seek to apply BIPA extraterritorially because any alleged BIPA violation did not
`occur “primarily and substantially” in Illinois; (2) application of BIPA on these facts would
`violate the dormant Commerce Clause; and (3) Microsoft did not receive any “benefit” or
`“profit” from the IBM DiF Dataset, much less from Plaintiffs’ alleged biometric information or
`identifiers, so Plaintiffs’ unjust enrichment claim fails. Plaintiffs therefore bear the burden of
`showing “the specific facts that further discovery would reveal and explain why those facts
`would preclude summary judgment” on the specific issues raised by the motion. Burke, 2018
`WL 6107217, at *3 (quoting Stein, 906 F.3d at 833). “[I]t must be ‘likely’ that those facts will
`be discovered during further discovery[.]” Id. “[M]ere speculation” is “insufficient to satisfy the
`rule.” Stein, 906 F.3d at 833. Plaintiffs fail these tests in every way.
`1.
`BIPA and Extraterritoriality
`Plaintiffs recognize that Microsoft’s BIPA extraterritoriality argument “hinges on
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`MICROSOFT’S OPPOSITION TO RULE 56(d) MOTION - 8
`(No. 2:20-cv-01082-JLR)
`4886-3771-7257v.6 0025936-003307
`
`Davis Wright Tremaine LLP
`LAW OFFICES
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
`

`

`Case 2:20-cv-01082-JLR Document 111 Filed 01/18/22 Page 12 of 16
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`whether Defendant’s alleged BIPA violations ‘occurred primarily and substantially in Illinois.’”
`Dkt. 107 (Mot.) at 6:8-9 (citation omitted). Plaintiffs assert they already have the information
`they need to oppose Microsoft’s argument without discovery: they “maintain that the
`combination of: (a) their Illinois residency; (b) the fact that relevant photographs were taken,
`and/or uploaded to Flickr, in Illinois; (c) Defendant’s failure to provide them with notice or
`obtain their consent in Illinois to obtain their biometrics; and (d) Defendant’s invasion of, or
`trespass on, their private domains in Illinois defeats Defendant’s extraterritoriality defense.” Id.
`at 6. Nevertheless, Plaintiffs demand further discovery not because that discovery is likely to
`establish particular facts they say will defeat Microsoft’s summary judgment motion, but because
`they claim “it is essential that Plaintiffs develop all facts regarding Defendant’s Illinois conduct,”
`including the location where Microsoft “downloaded and stored” the dataset. Id. 6-7.
`But it is not “essential” to develop all facts “regarding” Microsoft’s Illinois conduct to
`oppose Microsoft’s targeted motion. The only relevant facts are those that bear on whether
`Microsoft’s allegedly BIPA-violating conduct in this case “occurred primarily and substantially
`in Illinois,” as the Court noted in its Order on the Motion to Dismiss. Dkt. 43 at 6 (quoting
`Avery v. State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801, 852 (Ill. 2005)). BIPA Section 15(b)
`prohibits a private entity from collecting or obtaining an individual’s biometric identifier or
`information without first providing notice and receiving written consent. 740 ILCS 14/15(b).
`Here, Microsoft’s alleged violation occurred when its Washington contractor and its New York
`intern downloaded IBM’s DiF Dataset, which purportedly contained Plaintiffs’ biometrics,
`without Plaintiffs’ consent. Dkt. 1 ¶¶ 63-65, 71-73, 94. The only essential facts therefore relate
`to whether Microsoft collected or otherwise obtained IBM’s DiF Dataset—the conduct at issue
`under BIPA—“primarily and substantially in Illinois.” Dkt. 43 at 6 (quoting Avery).
`Microsoft months ago provided discovery on these issues through documents and
`interrogatory answers. Further, all these topics are addressed in declarations of the individuals
`whom Microsoft will make available for deposition (nearly all of whom Plaintiffs have known
`about at least since July). See Dkts. 87-93. And when asked, these witnesses can discuss where
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`MICROSOFT’S OPPOSITION TO RULE 56(d) MOTION - 9
`(No. 2:20-cv-01082-JLR)
`4886-3771-7257v.6 0025936-003307
`
`Davis Wright Tremaine LLP
`LAW OFFICES
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
`

`

`Case 2:20-cv-01082-JLR Document 111 Filed 01/18/22 Page 13 of 16
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`Mr. Skrainka and Ms. Samadi were when they downloaded the DiF Dataset, how they
`downloaded the data, and what they did with it.
`In arguing they need more, Plaintiffs focus on evidence they already have, which
`Microsoft voluntarily provided, and argue that this evidence suggests Mr. Skrainka and
`Ms. Samadi may have stored the IBM Dataset in the Microsoft cloud. Mot. at 7:12-8:12. From
`that, they infer that encrypted one-megabyte chunks of the IBM DiF Dataset may at some point
`have been stored in a data center in Chicago, Illinois. Id. at 7:5-11; see also Swann Decl. ¶ 4.
`But this does nothing to support a request for additional time under Rule 56(d). Plaintiffs are
`free to argue that encrypted storage of the IBM DiF Dataset in a Chicago data center—if that
`even happened—would mean that Microsoft’s alleged violation of BIPA occurred “primarily and
`substantially” in Illinois. Plaintiffs do not need six more months and overly burdensome,
`disproportionate discovery about the Microsoft cloud and its datacenters to make this argument.
`And they point to no “specific facts that further discovery would reveal” about the storage
`location that would be essential to their opposition. Burke, 2018 WL 6107217, at *3. At best,
`they offer “mere specul