Adversaries Agree to Discovery Stay in Nike Online Shopping Privacy Suit

A stipulation filed on Tuesday alerted Judge Fernando L. Aenlle-Rocha to the parties’ determination to stay discovery until the resolution of defendants’ motion to dismiss in a case raising privacy issues over the use of click-tracking software on a website. Nike Inc. and co-defendant FullStory Inc., a marketing software-as-a-service company, previously asked the Central District of California to stay discovery in the invasion of privacy and wiretapping class action, but no decision has yet been rendered.

The suit was originally filed in October 2020. It accused Nike of using FullStory’s software to wiretap visitors’ electronic communications by recording their sessions on Nike’s website without disclosing the surveillance or obtaining visitor permission. In December, the plaintiff filed a first amended complaint with further details about Nike’s privacy policy.

Then, the defendants moved to dismiss in late January for lack of jurisdiction and failure to state a claim. The plaintiffs began propounding discovery requests in April.

In late July, the plaintiffs moved to compel certain discovery, including FullStory’s software source code. In support of its argument, the plaintiff contended that it was the single most important piece of evidence in the case. 

FullStory countered that it would take about 120 hours to prepare for production, and moreover that the risk of inadvertent disclosure easily outweighed the plaintiff’s need. In denying the motion, the court explained that the plaintiff had neither shown the requisite level of necessity nor that he would be unable to obtain the information by alternative means, like witness testimony.

The stipulation provides that the defendants will complete their production of documents by the end of this week. They are also set to serve objections and responses to the plaintiff’s second set of interrogatories. All further discovery is to be stayed pending Judge Aenlle-Rocha’s ruling on the motion to dismiss, the filing says.

The consumers are represented by Bursor & Fisher P.A., and Nike and FullStory by Covington & Burling LLP.