U.S. District Judge Nancy Rosenstengel agreed to extend discovery and trial deadlines after both parties requested additional time in a suit alleging Apple Inc. collects and stores biometric identifiers through facial recognition technology through the Photos App.
Rosenstengel ordered the parties to complete discovery by March 11, 2022, and set the presumptive jury trial for sometime in October 2022.
Plaintiffs Roslyn Hazlitt, Jane Doe, Richard Robinson and Yolanda Brown filed a joint motion with Apple for extension of discovery and other pretrial deadlines on July 14.
“In light of the foregoing procedural posture, the parties do not anticipate that it will be possible to complete fact discovery in this case by July 23,” they argued. “An extension of the fact deadline is therefore warranted.”
Hazlitt, Jane Doe, by and through next friend John Doe, Robinson and Brown filed the putative class action on March 2, 2020, through attorney Andrew Schlichter of Schlichter Bogard & Denton LLP in St. Louis. The original lawsuit was filed in St. Clair County Circuit Court before Apple removed the case to the U.S. District Court for the Southern District of Illinois on May 6, 2020, through attorney Raj Shah of Chicago.
The plaintiffs argue that Apple violated the Biometric Information Policy Act (BIPA) by collecting, possessing and profiting from the plaintiffs’ facial geometries through facial recognition. They claim the Apple Photos app uses a proprietary software and facial recognition technology to scan facial features from photographs, creating a “faceprint” for every person detected “‘without the knowledge or informed written consent of’ the user or others who may appear in the photographs.”
The plaintiffs acknowledge that the Photos app uses “on-device processing,” but argue that Apple is liable because it provides the app.
The plaintiffs seek class certification, including “all Illinois citizens whose faces appeared in one or more photographs taken or stored on their own Apple Devices running the Photos App from March 4, 2015 until present.”
They seek injunctive relief, actual damages, $5,000 in statutory damages for each intentional and reckless BIPA violation, $1,000 for each negligent BIPA violation, attorney’s fees and court costs.
Apple filed a motion to dismiss the complaint on June 12, arguing that the complaint is “devoid of factual allegations that Apple Inc. engages in any of the conduct against which the Illinois Biometric Information Policy Act protects: a private entity’s unauthorized collection, possession, and disclosure of individuals’ unique and personal ‘biometric identifiers’ or ‘biometric information.’”
Apple argues that the plaintiffs fail to plead that the defendant, the device or the Photos app links facial scans from photos to identifiable individuals. It added that device users have control over whether to tag people in photos.
The defendant further argues that the complaint fails to allege that it actually collects the information at issue. The complaint alleges the information is stored in the memory on the specific Apple device, the motion states.
“The plaintiffs therefore resort to tenuous and never before used theories of vicarious or secondary liability as a basis for their BIPA claims against Apple,” the motion states. “The Illinois legislature imposed no such liability in enacting BIPA, and courts routinely dismiss claims against device manufactures and software developers that, like here, allege nothing more than the sale of technology which allegedly created biometric identifiers or biometric information during operation by the end-user.”
The motion remains pending.
U.S. District Court for the Southern District of Illinois case number 3:20-cv-421