Turck v. Meta Platforms, Inc.

Filing 80

ORDER RE: DISCOVERY (Illston, Susan) (Filed on 1/28/2025)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NATALIE DELGADO,

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Plaintiff,

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United States District Court
Northern District of California

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Case No. 23-cv-04181-SI
ORDER RE: DISCOVERY DISPUTE

v.

Re: Dkt. No. 78
META PLATFORMS, INC.,
Defendant.

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The parties have met and conferred and, with the Court’s permission, have filed a lengthy
joint statement regarding their discovery dispute. See Dkt. No. 78.

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BACKGROUND

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Plaintiff Natalie Delgado is a citizen of Illinois who has a Facebook account and utilizes the

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Messenger application, both of which are owned and operated by defendant Meta Platforms, Inc.

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(“Meta”). Dkt. No. 1 (“Compl.”) ¶¶ 25, 148. According to the complaint, on multiple occasions in

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2023, 2022, and “throughout the Class Period, Plaintiff has, for personal use, input her voice into

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an audio function on Facebook or Messenger, including, inter alia, to dictate text messages to send

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via Messenger, sending an audio recording of her voice via Messenger, and making audio calls via

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Messenger.” Id. ¶ 149. Plaintiff alleges that during the class period “Meta created, collected,

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captured, received through trade, stored, and/or otherwise obtained Plaintiff’s voiceprint and related

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biometric information[,]” without complying with the requirements of Illinois’s Biometric

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Information Privacy Act (“BIPA”), 740 ILCS 14/1 et seq. Id. ¶ 151. Plaintiff sues on behalf of

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herself and a putative class consisting of: “All natural persons in Illinois from whom Meta created,

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collected, captured, received, obtained, or stored Digital Voice Data, Voice Characteristics, and/or

United States District Court
Northern District of California

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a Voice Profile.” Id. ¶ 153. The Class Period alleged in the complaint “is that period within the

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statute of limitations for this action and extending until a Class is certified herein.” Id. ¶ 157.

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Plaintiff filed suit on August 16, 2023. Dkt. No. 1. On February 27, 2024, the Court granted

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in part and denied in part Meta’s motion to dismiss the complaint. Dkt. No. 55. Plaintiff elected

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not to amend her complaint. Accordingly, what remain are Counts I and II, which allege violations

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of BIPA Sections 15(a) and (b). In Count I, plaintiff alleges that “[d]uring the Class Period, Meta

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did not develop a written policy, made available to the public, establishing a retention schedule and

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guidelines for permanently destroying biometric identifiers and biometric information to occur by

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the earlier of: (a) when the original purpose for collecting or obtaining such identifiers has been

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satisfied, or (b) within 3 years of the individual’s last interaction with the private entity, as required

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by 740 ILCS 14/15(a).” Compl. ¶ 168. In Count II, plaintiff alleges that “[d]uring the Class Period,

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Meta collected, captured, received through trade, and/or otherwise obtained the voiceprints and

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related biometric information of Plaintiff and the Class” without properly informing plaintiff and

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the class in writing and without obtaining a written release, in violation of 740 ILCS 14/15(b). Id.

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¶¶ 178-179.

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On December 26, 2024, the parties filed the present discovery dispute statement. Dkt. No.

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78 (“Joint Statement”). The deadline for completion of non-expert discovery is May 2, 2025. Dkt.

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No. 63 at 2.

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LEGAL STANDARD

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In general, parties may obtain discovery regarding any matter, not privileged, that is

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“relevant to any party’s claim or defense and proportional to the needs of the case . . . .” Fed. R.

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Civ. P. 26(b)(1). Factors to consider include “the importance of the issues at stake in the action, the

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amount in controversy, the parties’ relative access to relevant information, the parties’ resources,

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the importance of the discovery in resolving the issues, and whether the burden or expense of the

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proposed discovery outweighs its likely benefit.” Id. Discovery need not be admissible in evidence

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to be discoverable. Id.

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United States District Court
Northern District of California

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DISCUSSION

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The parties have reached impasse with regard to Meta’s responses to Interrogatories 4-7 and

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Requests for Production 3, 4, and 6. “Plaintiff seeks evidence related to Meta’s ability to identify

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people using Digital Voice Data, both in terms of (1) what Meta could do and (2) actual instances

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where Meta has identified people using Digital Voice Data during the Class Period.” Joint

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Statement at 5. She argues that Meta has improperly limited its responses to scenarios where Meta

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has technology “‘set up’ or . . . applied . . . to use, process, or analyze audio input of Illinois Facebook

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or Messenger users’ voices.” Id. Meta’s position is that the disputed requests seek something

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“wholly outside the scope of BIPA: whether Meta has technology that could use the voice recordings

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it collects not to identify someone, thereby rendering the recordings voiceprints, but rather to ‘create’

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other data that in turn could be used to identify someone.” Id. at 11.

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At the outset, the Court agrees with plaintiff’s observation that Meta raises legal issues better

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suited for resolution on summary judgment. The Court is reticent to wade too far into these

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questions at this stage, before the close of discovery. Both sides rely on the Ninth Circuit’s decision

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in Zellmer v. Meta Platforms, Inc., 104 F.4th 1117 (9th Cir. 2024), which issued after this Court’s

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ruling on the motion to dismiss. There, the Ninth Circuit affirmed summary judgment in favor of

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Meta, after a plaintiff who was not a Facebook user sued under BIPA based on Meta’s creation of

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“face signatures” from photos the plaintiff’s friends had uploaded to Facebook. The Ninth Circuit

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found there was “no material dispute of fact about whether face signatures can identify a person.”

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Id. at 1125 (citation omitted). They couldn’t. Accordingly, the face signatures at issue were “not

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biometric identifiers or biometric information as defined by BIPA.” Id. at 1126. The Ninth Circuit

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found “particularly persuasive” a district court case out of Illinois which “recognized that, even if a

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company does not use face scans to identify a person, BIPA applies if it could.” Id. at 1125 (citing

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Hazlitt v. Apple, 500 F. Supp. 3d 738 (S.D. Ill. 2020)).

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The Court emphasizes that Zellmer was decided at summary judgment, after the parties had

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engaged in discovery. The Zellmer court reached its conclusion following an independent review

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of the record, analyzing in detail Meta’s process for creating, utilizing, and storing “face signatures.”

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See id. at 1125-26. The Court therefore agrees with plaintiff’s position that “whether the data at
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Northern District of California

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issue is capable of being used to identify a person is a fundamental issue to be explored in

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discovery.” See Joint Statement at 6-7. Accordingly, the Court disapproves of Meta limiting its

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discovery responses to whether it has technology “set up” to use on voice recordings obtained from

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Illinois Facebook or Messenger users only. See id. at 9.

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The Court ORDERS Meta to supplement its responses to Interrogatories 4-7 and RFPs 3, 4,

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and 6. The Court overrules Meta’s objections limiting its responses only to technology that has

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been “set up” for Illinois Facebook or Messenger users. Where called for, Meta shall respond to the

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requests without limiting the response to technology that has been “set up” for such use and without

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limiting the response to Illinois Facebook or Messenger users. The Court further overrules Meta’s

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objection to the extent the requests “call[] for information concerning processing or analysis that

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does not involve biometrics[.]” See, e.g., id., Ex. 3 at 12 (Response to Interrogatory No. 4).

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The Court agrees that discovery responses may be limited to the Class Period, and there no
longer appears to be a dispute in that regard.1 See Joint Statement at 8.

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The Court does not at this time expressly reach the question of whether requests for

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production may properly encompass information regarding voice recordings collected from users of

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Meta products other than Facebook and Messenger. Meta objects that, given the breadth of its

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company and the numerous services and products it owns besides Facebook and Messenger,

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responding to this request would be excessively disproportional. See id. at 20. Plaintiff states that

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she is “open to discussing ways to limit or phase the discovery[.]” Id. at 10. The present discovery

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dispute statement, though lengthy, is short on specifics regarding the burden on Meta. Having

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provided the above guidance on the proper scope of discovery, the Court now orders the parties to

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meet and confer on any remaining disputes, including the question of how to limit the burden on

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Meta and how best to prioritize or phase discovery. It may be that responding to relevant discovery

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requests will place a considerable burden on Meta. However, burden alone may not justify a failure

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to respond. See Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment (“A party

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claiming undue burden or expense ordinarily has far better information—perhaps the only

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Should a dispute remain regarding the relevant time period, the parties are ordered to meet
and confer on this point. If disagreement remains, they may seek further guidance from the Court.
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information—with respect to that part of the determination. . . . In practice these circumstances

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often mean that the burden of responding to discovery lies heavier on the party who has more

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information, and properly so.”).

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In its discretion, the Court denies plaintiffs’ request for an award of attorneys’ fees and

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expenses at this juncture. See Joint Statement at 10. This denial is without prejudice to plaintiff

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seeking fees in the future, should circumstances warrant.

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CONCLUSION

United States District Court
Northern District of California

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Meta is ORDERED to supplement its responses to Interrogatories 4-7 and Requests for

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Production 3, 4, and 6 in accordance with the above guidance. Meta’s supplemental responses

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are due no later than February 14, 2025, unless one or both sides request an alternative

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deadline.

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IT IS SO ORDERED.
Dated: January 28, 2025
______________________________________
SUSAN ILLSTON
United States District Judge

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