Fluery v. Union Pacific Railroad Company

Filing 114

MEMORANDUM OPINION AND ORDER: Signed by the Honorable Jeffrey Cole on 11/18/22. Emailed notice (yt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID FLEURY, individually and on
behalf of similarly situated individuals,
Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation,
Defendant.

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No. 20 C 390
Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER

The plaintiff has filed a motion to compel the production of Personal Identifying Information
(“PII”) defendant has collected from the putative class members, including the biometrics and
derived from scanning individuals’ fingerprints (the “Class Data”) and the purported consents signed
by putative class members pursuant to the post-suit BIPA compliance procedures defendant
implemented after being sued for BIPA violations. [Dkt. #103]
The plaintiff served the discovery requests at issue over a year and a half ago, back on April
4, 2021, in between two lengthy stays. [Dkt. #51, #52, #63, #103, at 2]. Once Judge Alonso lifted
the second stay, plaintiff reissued those requests on June 2, 2022. [Dkt. #89, #103, at 2; #112, at
3]. As such, defendant’s responses were due July 2, 2022, but plaintiff allowed defendant an
additional 30 days to respond. [Dkt. #103]. Once defendant responded, plaintiff mulled over the
results for six weeks and, on September 14, 2022, wrote the defendant a “deficiencies” letter. The
letter cited issues with Request Nos. 4, 5, 6, 8, 9, 11, 12, 14, 18. [Dkt. #103-1]. Defendant spent a
month with plaintiff’s critique and responded on October 12, 2022, countering plaintiff’s arguments

regarding Request Nos. 4, 5, 8, 11, 14, and 18, and scheduling a meet and confer for October 13th.
[Dkt. #103-3]. As to what occurred at that conference, and how things proceeded thereafter, the
parties tell differing tales. All we know from the plaintiff’s Local Rule 37.2 certification is that the
attorneys for both sides talked on the phone on a single occasion over the course of their lengthy
contretemps over the plaintiff’s multiple issues with the defendant’s discovery responses.
That’s, quite literally, phoning it in. If two sides are battling over nine separate discovery
issues for at least five months, a single phone call does not meet their Local Rule 37.2
obligations. See, e.g., Art Akiane LLC. v. Art & SoulWorks LLC, 2020 WL 5604064, at *1 (N.D. Ill.
2020)(size of dispute brought to the court is evidence of parties’ failure to confer in good faith); W.
Bend Mut. Ins. Co. v. Zurich Am. Ins. Co., 308 F. Supp. 3d 954, 958–59 (N.D. Ill. 2018)(“Chatting
for a bit about a dispute.... is not engaging in a good faith meet and confer.”); Infowhyse GmbH v.
Fleetwood Grp., 2016 WL 4063168, at *1-2 (N.D. Ill. 2016)(“A single phone call in three months
regarding a dispute ... doesn't come close to sufficing.”); Chamberlain Grp. v. Lear Corp., 2010 WL
2836975, at *2 (N.D. Ill. 2010)(single face-to-face meeting did not meet the Local Rule's
requirements). Defendant admits that the parties actually only discussed a single one of the plaintiff’s
requests at that conference, Request No. 4. With that kind of focus, the issues as to that request ought
to be crystalized for the court to resolve. But, as is often the case with discovery disputes, not so
much.
Despite plaintiff’s long list of complaints, from what the court can piece together from the
parties’ submissions, it would seem that all that is left in dispute are Request Nos. 4 and 5. Ideally,
a motion to compel would not take the court through five pages before ever mentioning the first
discovery request at issue; here, Request No. 4. [Dkt. #103, at 1-5]. Even then, nowhere in plaintiff’s
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brief does plaintiff quote to the request so the court can see what all the fuss is about. In fact, the
plaintiff doesn’t attach its requests to its motion, although it does give the court the defendant’s
responses which include the two requests which seem to remain at issue.
Request No. 4 asks for “All Documents which Identify all individuals whose Biometric
Identifiers or Biometric Information was collected, captured, stored, and/or used by You or on Your
behalf during the Relevant Time Period.” [Dkt. #103-4, Page 5/12]. While, again, plaintiff’s motion
regarding its discovery requests seems intentionally divorced from its actual request, it seems that
from this request, plaintiff expects what he calls “Personal Identifying Information” which includes
“the biometrics derived from scanning individuals’ fingerprints.” [Dkt. #103, at 2-3]. The best way
to have gone about that would have been to ask the defendant for the fingerprint scans it retained
from the drivers during the relevant period. It is not apparent that “Documents” means electronic
fingerprint scans, at least not without any explanation from the plaintiff. The plaintiff also fails to
explain why the fingerprint scans of the drivers are relevant if all plaintiff really needs are the names
of the drivers who were scanned. To support its position, plaintiff directs the court to some rulings
and filings in another biometrics case, Rogers v. BNSF Railway Co., No. 19-cv[1]03083 (N.D. Ill.,
2022). But one is a sealed document [Dkt. #117] that only the parties and the judge in that case can
access, another is a response to a statement of fact that says nothing about relevance of discovery of
fingerprint scans [Dkt. 128-2 at pg. 33, Fact No. 5 (“The biometric information captured and
collected from truck drivers’ fingerprints by the AG Systems and stored on BNSF’s [redacted]”)],
the third is an order noting a jury verdict [Dkt. #223] that does not mention fingerprints at all, and
the fourth says the parties in the case were about only 3% apart in terms of the number of drivers
they identified. [Dkt. #90, at 3, n.6].
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Defendant’s response is not more edifying. It seems to have a quarrel with how the plaintiff
defines “biometrics” but doesn’t go into any specifics. Clearly, fingerprints are biometrics. Miller
v. Sw. Airlines Co., 926 F.3d 898, 900 (7th Cir. 2019). Also, after congratulating itself for producing
some limited information regarding driver consents (four months late), the defendant appears to
argue that it has no obligation to provide any identifying information about the drivers who had their
fingerprints scanned to enter defendant’s facility. It also seems to argue every driver consented
because it produced a manual and offers a self-serving Declaration that all drivers consented [Dkt.
#112, at 5-6]. In other words, defendant says, in effect, “move along, there’s nothing to see here.”
But, until Judge Alonso decides there’s nothing to see here, defendant is on the hook for
discovery. And, that discovery is likely to seem out of proportion from the defendant’s perspective.
A magistrate judge handling discovery has no idea what the district court judge will deem significant
or perhaps even relevant when the time comes for summary judgment or trial. This can sometimes
be a difficulty with bifurcation between substantive issues and discovery disputes. So the tendency
is – as may happen here – to err on the side of more rather than less. See Frank H. Easterbrook,
Discovery As Abuse, 69 B.U.L. Rev. 635, 639 (1989)(“One common form of unnecessary discovery
(and therefore a ready source of threatened discovery) is delving into ten issues when one will be
dispositive. A magistrate judge lacks the authority to carve off the nine unnecessary issues; for all
the magistrate judge knows, the district judge may want evidence on any one of them. So the
magistrate judge stands back and lets the parties have at it. Pursuit of factual and legal issues that
will not matter to the outcome of the case is a source of enormous unnecessary costs, yet it is one
hard to conquer in a system of notice pleading and even harder to limit when an officer lacking the
power to decide the case supervises discovery.”).
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While this Order could go on, it seems clear from the parties’ submissions that they have

not complied with Local Rule 37.2's requirement that they negotiate in good faith. See, e.g., Gunn
v. Stevens Security & Training Servs., Inc., 2018 WL 1737518, at *3 (N.D. Ill. 2018)(“A party that
steadfastly maintains a position without support is not engaging in a good faith discussion.”);
Chicago Reg. Council of Carpenters Pension Fund v. Celtic Floor Covering, Inc., 316 F.Supp.3d
1044, 1046 (N.D. Ill. 2018)(“An ultimatum on one side, met with steadfast defiance on the other,
is not a good faith discussion.”); Infowhyse GmbH v. Fleetwood Grp., 2016 WL 4063168, at *1
(N.D. Ill. 2016)(“... adamantly clinging to the positions with which they began” amounts to a failure
“to comply, in good faith, with the requirements of Local Rule 37.2.”).
Accordingly, the parties have more work to do. They are directed to continue meeting to
resolve their differences over the two discovery requests and the Confidentiality Order and submit
a status report on December 18, 2022. The plaintiff’s motion to compel [Dkt. #103] is denied
without prejudice to refiling in the unlikely event the parties fail to resolve these rather routine
discovery matters. The briefing schedule allowing a reply brief from the plaintiff on November 21st
[Dkt. #111] is stricken.

ENTERED:
UNITED STATES MAGISTRATE JUDGE

DATE: 11/18/22

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