United States District Court, N.D. California
ORDER RE SUMMARY JUDGMENT, Re: Dkt., 106
DONATO United States District Judge.
putative class action, plaintiff Gullen alleges that
defendant Facebook, Inc. violated the Illinois Biometric
Information Privacy Act, 740 Ill. Comp. Stat. 14/1 et
seq. (“BIPA”), by collecting his biometric
identifiers without notice or consent. Dkt. No. 1-1 at 6-7;
see generally Patel v. Facebook Inc., __ F.Supp.3d.
__, No. 3:15-cv-03747-JD, 2018 WL 1050154, at *1 (N.D. Cal.
Feb. 26, 2018) (factual background). Facebook has moved for
summary judgment on a number of grounds here and in the
companion case In re Facebook Biometric Privacy
Litigation, No. 15-3747. Dkt. No. 105. In a
“supplemental brief” directed entirely to
Gullen's case, Facebook says that his claims are based on
a single photograph uploaded to an organizational, as opposed
to personal, page, and that Facebook did not use its facial
recognition technology for that page. Dkt. No. 106. Since
Gullen has not raised any genuine dispute about this fact,
the motion is granted on this ground. The Court does not
reach any of Facebook's other arguments in the
supplemental brief or other summary judgment papers.
party may move for summary judgment, identifying each claim
or defense -- or the part of each claim or defense -- on
which summary judgment is sought. The Court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see also Smith v. State of California Dep't of
Highway Patrol, 75 F.Supp.3d 1173, 1179 (N.D. Cal.
dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict” for either
party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A fact is material if it could affect the
outcome of the suit under the governing law. Id. at
248-49. In determining whether a genuine dispute of material
fact exists, the Court will view the evidence in the light
most favorable to the non-moving party and draw “all
justifiable inferences” in that party's favor.
Id. at 255. A principal purpose of summary judgment
“is to isolate and dispose of factually unsupported
claims.” Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986).
moving party must initially establish the absence of a
genuine issue of material fact, which it can do by
“pointing out to the district court . . . that there is
an absence of evidence to support the nonmoving party's
case.” Id. at 325. It is then the nonmoving
party's burden to go beyond the pleadings and identify
specific facts that show a genuine issue for trial.
Id. at 323-34. “A scintilla of evidence or
evidence that is merely colorable or not significantly
probative does not present a genuine issue of material
fact.” Addisu v. Fred Meyer, Inc., 198 F.3d
1130, 1134 (9th Cir. 2000). In addition, it is not the
Court's task “to scour the record in search of a
genuine issue of triable fact.” Keenan v.
Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quotations
dispositive material facts here are straightforward, and
Gullen has not shown that they are in dispute. He concedes
that he has identified only two photos of himself on
Facebook. One was taken in Pennsylvania and uploaded in
Michigan. The other was uploaded to an organizational account
-- a Facebook page run by an organization, rather than an
individual. Dkt. No. 104-6 at 4. At the summary judgment
hearing, Gullen confirmed that his claims are based solely on
the organizational page photograph.
record shows that Facebook does not use facial recognition
technology on photos uploaded to organizational accounts.
Facebook submitted a declaration from software engineer Omry
Yadan stating that “facial recognition is not performed
on photos that are posted on business or other organization
Facebook Pages.” Dkt. No. 256-8 at 5. While Gullen
criticizes the declaration as self-serving, Dkt. No. 271-4 at
10-11, he offers no facts or evidence to call that statement
into question. Gullen says that “much of Mr.
Yadan's declaration directly contradicts his earlier
testimony, ” id. at 11, but that is a purely
conclusory assertion, and Gullen never explains which part of
Yadan's declaration may be subject to genuine dispute.
state of the record is enough to terminate Gullen's
claims, and his suggestion that summary judgment should be
deferred to allow for more discovery is unavailing.
See Dkt. No. 271-34. Gullen professes surprise at
Yadan's declaration, and says he would like to
“re-open Yadan's deposition” to ask him about
the organizational page practices and require him to identify
the specific source code supporting his testimony.
Id. at 5-6. The problem with this request is that by
December 2016, Facebook had already produced documents
stating that Facebook does not apply facial recognition to
photographs uploaded to the Facebook organizational pages.
See, e.g., Dkt. No. 125-1 at 1-2 (Gullen
action) (“recognition wasn't necessary for page
photos and so it was left out of the upload flow”).
Gullen had this information in hand before his expert
finished reviewing Facebook's facial recognition source
code and before Gullen deposed Yadan in October 2017. His
lawyer acknowledged this at the hearing. Tr. at 9-11. Gullen
was free during discovery to pursue these leads by
interrogating Facebook and its witnesses about the exclusion
of “page photos” from the facial recognition
technology, and about the portions of the source code that
might implement that. He did not do so, and instead waited
until after summary judgment proceedings were initiated in
December 2017 to raise the issue.
not at all the situation Rule 56(d) is intended to address.
Rule 56(d) “requires discovery only where the
non-moving party has not had the opportunity to discover
information that is essential to its opposition.”
Roberts v. McAfee, Inc., 660 F.3d 1156, 1169 (9th
Cir. 2011) (internal quotation and citation omitted). Gullen
had ample opportunity to conduct discovery on organizational
pages, and he has not shown that the discovery he now seeks
was in any way unavailable to him in the normal course of
so, the record does not indicate that Yadan said anything
inconsistent or untruthful about Facebook's practices for
organizational pages. Yadan testified during his deposition
that not all photos uploaded to Facebook undergo facial
recognition. Dkt. No. 271-8 at 106-108 (discussing photos
uploaded to Facebook comments and stating that “there
are others [other examples]. It's just that there are so
many ways for photos to get into Facebook, and not all of
them -- it doesn't always make sense for them to go
through this [face recognition]”). Gullen contends that
the testimony of another Facebook witness, Yaniv Taigman,
contradicts Yadan, but that stretches the evidence too far.
Gullen highlights Taigman's answer to the question:
“Facebook has to collect face signatures from everybody
who appears on a photo upload to Facebook in order to
determine whether there's a match; isn't that
right?” Dkt. No. 271-7 at 240. Taigman did not respond
with yes or no, but attempted to re-explain the steps in
Facebook's facial recognition software: “So, like
we said, photos uploaded to Facebook, we extract. Like, face
detection process, then create face signature, and then, yes,
you try to match that into whatever your -- you have,
right?” Id. This snippet of testimony does not
bear the weight Gullen puts on it because the question does
not contemplate the possibility that some photos uploaded to
Facebook are not analyzed for user matches, and because
neither the question nor the answer expressly addressed
final effort to avoid summary judgment, Gullen's counsel
read at the hearing another portion of Taigman's
deposition with the comment “transcript's on
file.” Tr. at 5. The quoted transcript portion might be
buried somewhere in the voluminous record for this
litigation, but the Court has determined that it was not
filed for the pending summary judgment motion, nor discussed
at all in the opposition brief, and consequently is of no
moment. Even giving Gullen every benefit of the doubt, the
excerpt again does not inherently contradict the Yadan
declaration or other evidence in the record with respect to
Facebook's organizational page practices.
record before the Court, Gullen has failed to show that a
genuine dispute exists as to whether Facebook runs facial
recognition on photos uploaded to organizational pages.
Facebook's motion for summary judgment is
GRANTED as to Gullen.