A motion filed then amended last Thursday asserts that Facebook has no proof that would force Instagram users’ Illinois Biometric Information Privacy Act (BIPA) claims to arbitration. The opposition comes after parent company Facebook Inc. initially moved to compel arbitration and stay the litigation in late February and after the Northern District of California court ordered arbitration-related discovery.
The August 2020 lawsuit asserts that Facebook illegally collects users’ personally identifying biometric information, principally, their facial geometry, through their use of the photo and video sharing social media application Instagram. After the filing of the amended complaint in late January, Facebook did not move to dismiss pursuant to Rule 12(b)(6), but instead asked the court to shunt the litigation to arbitration.
Over Facebook’s objections, Judge John S. Tigar permitted the parties to conduct arbitration-related discovery, including limited document discovery and depositions of three of Facebook’s declarants and the two plaintiffs. The plaintiffs argue that the results of the fact finding expedition lend no credence to Facebook’s contention that an arbitration agreement was presented or agreed to by either plaintiff.
According to the opposition, “Facebook does not maintain business records relating to the purported formation of its arbitration agreements.” Through discovery, the plaintiffs allegedly learned that a paralegal who works as an e-discovery and litigation case manager knows that Facebook maintains a repository of the company’s historic terms of use, but has no personal knowledge regarding whether any terms were ever sent, received by, or agreed to by the plaintiffs or anyone else.
The paralegal’s information is reportedly based on hearsay, learned second-hand from Facebook engineers who did not provide declarations supporting the information they supplied to the paralegal. On top of that, Facebook’s counsel reportedly foreclosed any inquiries into the content of the paralegal’s communications with the engineers on privilege and work product grounds.
“Having made the strategic decision to withhold this evidence – from the only employees with any knowledge about the purported formation of agreements to arbitrate – Facebook cannot introduce any new evidence now,” the opposition says. In turn, the plaintiffs contend, the record shows that they never agreed to arbitrate their claims. As such, the users request that the court deny Facebook’s motion and permit the case to proceed in district court.
The plaintiffs are represented by Carlson Lynch LLP and Milberg Coleman Bryson Phillips Grossman PLLC. Facebook is represented by Mayer Brown LLP and Cooley LLP.