Microsoft Balks at MSJ Deferral Request in BIPA Suit

Tech giant Microsoft filed an opposition to the plaintiff’s bid for more time for discovery in a privacy case Tuesday. They argue that the plaintiffs do not meet the required burden in their Rule 56(d) request for six more months to collect testimony.

As previously reported, the Illinois residents’ class action concerns Microsoft’s alleged collection and use of the plaintiffs’ biometric information, namely their facial geometry, without written notice or their consent in violation of Illinois’ Biometric Information Privacy Act (BIPA). Specifically, the action centers on a dataset created from images uploaded by individuals to the Flickr platform, cataloged into a dataset by IBM, and downloaded by Microsoft. The defendant allegedly and improperly used the dataset to improve the fairness and accuracy of its facial recognition products, the suit says.

In March 2021, the case partly survived Microsoft’s dismissal bid. The plaintiffs’ class certification and Microsoft’s summary judgment motions are now pending.

Last week, the plaintiffs argued that Microsoft’s request for summary judgment was premature and that the court should postpone briefing on it for six months. They contended that they lack the underlying facts to properly refute Microsoft’s defenses and need more discovery.

Now, Microsoft says the plaintiffs have neither exercised due diligence in discovery nor identified the specific facts relevant to its summary judgment motion “that their wide-ranging requests would ‘likely’ reveal.” The filing recounts how Microsoft allegedly identified witnesses in response to the plaintiffs’ discovery requests and invited their deposition, but that the plaintiffs have taken only one short deposition of an IBM employee.

In addition, the plaintiffs have failed to “identify the facts they seek, make any showing those facts exist, or explain why those facts are essential to oppose summary judgment.” As such, the defendant claims the plaintiffs are not entitled to Rule 56(d) relief.

The plaintiffs are represented by Loevy & Loevy and Carlson Lynch. Microsoft is represented by Morgan, Lewis & Bockius LLP and Davis Wright Tremaine LLP.