Joint Discovery Letter Brief Regarding Defendants' Responses to… — Brooks v. Thomson Reuters Corporation (Dkt. 81)

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U.S. District Court for the Northern District of California · No. 3:21-cv-01418-EMC · Doc. 81 · 2022-03-24 · Docket on CourtListener

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March 24, 2022 
 
Via ECF 
The Honorable Edward M. Chen, 
U.S. District Court for the  
Northern District of California, 
San Francisco Courthouse, Courtroom 5 
450 Golden Gate Avenue,  
San Francisco, CA 94102 
 
Re: 
Joint Letter Brief Regarding Defendants’ Responses to Plaintiff’s First Set of Requests 
for Production, Brooks et al v. Thomson Reuters Corporation, Case No. 3:21-cv-01418-
EMC 
 
Dear Judge Chen: 
 
The parties respectfully submit this joint letter brief addressing one discovery dispute in 
the above-referenced case. After meaningfully conferring by phone and in writing, lead trial 
counsel for Plaintiffs has concluded no agreement can be reached on this issue. 
 
Respectfully Submitted, 
 
/s/ Andre M. Mura 
Counsel for Plaintiffs 
 
/s/ Susan D. Fahringer 
Counsel for Defendant 
 
 
Case 3:21-cv-01418-EMC     Document 81     Filed 03/24/22     Page 1 of 4

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Plaintiffs’ Statement: Plaintiffs request that the Court compel Thomson Reuters to produce 
all of its data-licensing agreements for CLEAR.1 These agreements enable Thomson Reuters to 
create its 360-degree view of Californians. For months, Thomson Reuters has refused to produce 
them. Only after Plaintiffs served their portion of this letter brief for the second time did Thomson 
Reuters agree to produce some of those agreements—but still, the company insists on carving out 
all those whose terms restrict disclosure. That’s many, if not most, of the agreements: Thomson 
Reuters’ model licensing agreement contains a confidentiality provision, and the company has 
confirmed that this provision is in many of its agreements. But the law does not allow parties to 
shield documents from discovery simply by inserting a confidentiality provision.  
“[C]onfidentiality agreements alone do not shield information from discovery.” In Re: Vizio, 
Inc., Consumer Privacy Litig., No. 8:16-ML-02693, Dkt. 260 at 14 n.6 (C.D. Cal. Feb 5. 2018) 
(compelling disclosure of unredacted licensing agreements). “To conclude” otherwise “would 
clearly impede the truth-seeking function of discovery in federal litigation as all individuals and 
corporations could use confidentiality agreements to avoid discovery.” I.E.E. Int’l Elecs. & Eng’g, 
S.A. v. TK Holdings Inc., 2013 WL 12183637, at *1 (E.D. Mich. June 24, 2013) (cleaned up); 
Chevron Mining Inc. v. Skanska USA Civ. W. Rocky Mountain Dist., Inc., 2019 WL 11556844, at 
*1 (N.D. Cal. Sept. 13, 2019); see In re Application of O’keeffe, 2016 WL 2771697, at *4 (D. Nev. 
Apr. 4, 2016). If any information actually warrants protection from public disclosure, the 
“protective order . . . will . . . protect [that] information.” Vizio, Dkt. 260 at 14; Seegert v. Rexall 
Sundown, Inc., 2019 WL 12044514, at *8 (S.D. Cal. Mar. 26, 2019).  
Thomson Reuters asserts that it would be disproportionate to the needs of the case to produce 
all of its agreements, but it cannot substantiate this conclusory assertion. Its data-sharing 
agreements—unavailable from any other source—are critical sources of information about what 
data Thomson Reuters collects, shares, and sells, with whom, and under what terms—and thus 
they are highly relevant to the claims and defenses. Compl., Dkt. 1-1; Answer, Dkt. 60 ¶¶ 1-4. For 
example, Thomson Reuters has maintained that much of the information in CLEAR is public—
these agreements will shed light on whether that’s true. The omission of some—and potentially 
most—of the agreements would significantly impede Plaintiffs’ ability to understand the data 
Thomson Reuters is using, where it comes from (and on what terms), and to assess the privacy 
impact of CLEAR on consumers. Indeed, Thomson Reuters itself all but concedes the agreements 
are relevant. And it has not identified any real burden that producing the agreements under a court 
order would impose. Cf. Hinds v. FedEx Ground Package Sys., Inc., 2019 WL 11201544, at *2 
(N.D. Cal. Mar. 8, 2019) (rejecting belated and unsubstantiated proportionality objections); 
Francisco v. Emeritus Corp., 2017 WL 11036693, at *6 (C.D. Cal. Sept. 5, 2017) (collecting cases 
rejecting requests to limit discovery based on the producing party’s views of relevancy).  
After refusing to comply with plaintiffs’ request for months, Thomson Reuters has now 
proposed for the first time—weeks before the expert disclosure deadline—that it notify all its data 
partners and seek permission to produce the agreements. Of course, those partners might not agree 
or respond in a timely fashion (if at all). There is no legal support for allowing Thomson Reuters—
or its partners—to control discovery. Nor is there any support for the contention that a party can 
manufacture a burden objection through self-imposed confidentiality restrictions—a burden which 
would nonetheless be resolved if the Court orders production. Nothing more is needed. This Court 
should reject the company’s last-minute effort to further delay production. 
 
 
1 See Pls.’ RFP 9 (“All Agreements between You and any vendor, licensor, licensee, government agency, 
private entity, or third-party aggregator that may be a source of information available through CLEAR.”). 
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Defendant’s Statement: CLEAR is a research tool that allows Thomson Reuters customers—
once they have been validated as a legitimate business entity with an appropriate use case, and 
have certified that they have a permissible and lawful purpose for every search they conduct—to 
search data that is provided by third-party licensors. This dispute centers on the license agreements 
between these third-party licensors and Thomson Reuters (“TR”). TR has agreed to produce the 
agreements, subject to a procedure that allows it to comply with the agreements’ requirements. 
The parties’ impasse regards how (not whether) the license agreements should be produced.  
There are over 100 such agreements. As TR has (repeatedly) explained to Plaintiffs, the 
agreements’ terms, including their confidentiality provisions, are far from uniform. Some of the 
agreements do not include any confidentiality restrictions. Those agreements will be produced, 
and TR anticipates doing so before month’s end. But over 80 agreements include confidentiality 
restrictions, and those can vary. Some require advance notice before disclosure of their terms, so 
that the third-party licensor has the opportunity to object to production. Some (but not all) allow 
for production without notice following a court order. TR’s template agreement confidentiality 
language is not widely used.  
TR has proposed a process that will allow it to produce the agreements consistent with TR’s 
obligations: TR will follow the contracts’ requirements, producing those that can be produced 
without advance notice and consent, and advising Plaintiffs if TR encounters issues impeding 
production so that the parties can confer and escalate to this Court any disputes that remain.  
TR’s proposal is reasonable and appropriate. It will allow for production of many, perhaps the 
vast majority, of these agreements. It will allow the parties—and the Court—to focus on the subset 
of agreements (if any) as to which production is impeded, so that the Court can consider the unique 
features and terms of any particular disputed agreement. It will allow TR to comply with its 
contractual obligations. And it will not prejudice Plaintiffs, including because they already have 
ample documentation regarding the issues they identify as relevant (for example, model license 
agreements; a library of sample contract provisions; current and historic versions of the Supplier 
Additional Terms & Disclaimers, which detail contractual restrictions on data provided by specific 
licensors; a broad array of reports and source records showing the types and sources of information 
available through CLEAR; and CLEAR User Guides, Guidelines and many other documents 
discussing restrictions on the use of CLEAR).  
Finally, this approach will not cause undue delay, because any urgency associated with this 
dispute is of Plaintiffs’ own making. Discovery does not close until May 2023. Plaintiffs’ motion 
for class certification is not due until October 2022. And although Plaintiffs allude to their experts’ 
need for these agreements, Plaintiffs have known since December that TR objected to unqualified 
production of all license agreements, and the original expert disclosure deadline was March 1, yet 
the first TR heard of this need was on March 15, when TR saw this argument in Plaintiffs’ insert 
to this letter brief. (On February 28, 2021, TR agreed to Plaintiffs’ request for an extension of case 
deadlines, solely to account for Plaintiffs’ lead counsel’s jury service.) There are no agreed 
informal deadlines, either, and throughout this case, TR has been clear and transparent regarding 
what it expected to produce, the timing of that production, and the variables that could impact 
those timeframes (such as search terms and custodians).  
Plaintiffs’ position is neither reasonable nor supported by the cases they cite. None of those 
cases involves a party that agreed to produce documents subject only to taking steps to comply 
with its contractual obligations. In Vizio, a case regarding Vizio’s alleged disclosure of consumer 
data to third parties, the discovery dispute centered on whether Vizio could redact its agreements 
with data licensees, to prevent discovery of the identities of those licensees. Vizio argued that 
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redactions were proportional based on a previously unasserted argument about the “business 
burden[s]” associated with subjecting certain third parties to discovery. Vizio Order at 14. The 
Court held that relevance of the information outweighed this asserted burden. Id. But TR is not 
seeking to redact the identities of its data licensors, only to discharge its contractual obligations to 
them. And in Seegert, the procedure adopted was essentially what TR proposes here: the parties 
did not escalate any dispute until after the defendant was unsuccessful in securing consent to the 
disclosure of protected data, at which point the court examined the individual contracts, found that 
production was permitted under two particular contracts, and ordered production with respect to 
the remaining contracts only after giving the affected businesses “an opportunity to move for a 
protective order in this matter prior to production.” Seegert, 2019 WL 12044514, at *8. 
Accordingly, TR respectfully requests that the Court defer ruling on this dispute until the 
parties can identify which, if any, of the 80+ unique license agreements cannot be produced 
consistent with their terms and therefore remain in dispute. At that point, the Court can consider 
the remaining disputed agreement(s), if any, including the circumstances precluding disclosure 
and relevance of the agreements to plaintiffs’ claims, and assess whether compelling production is 
appropriate, and under what conditions. In the alternative, if the Court orders the blanket 
disclosures of license agreements that Plaintiffs request, TR asks the Court to permit TR to provide 
advance notice to the third-party licensors to give them an opportunity to object, and also to specify 
in its order that if Plaintiffs or their representatives disclose license agreement information in 
violation of the parties’ Protective Order, then Plaintiffs will face severe sanctions.  
Plaintiffs’ Reply: Thomson Reuters’ (“TR”) statement that this impasse regards only how the 
agreements are produced ignores that it refused to produce any agreements for months. Instead, 
after receiving an early draft letter brief, TR offered attorney-filtered exemplar agreements and 
summaries, representing that “many” agreements barred production. TR now says, for the first 
time, “many” do not bar production—yet it still has produced zero agreements and has not notified 
any of its partners that it is preparing to produce agreements in this litigation.  
Its total failure to do so should not prejudice Plaintiffs’ class certification expert’s timely 
review of these materials. The agreements are vital sources of information about the licensing of 
data, and TR has not produced sufficient information to fill those gaps. The parties have been 
working through this dispute since January (well before the previous expert disclosure deadline); 
Plaintiffs identified RFP 9 as a priority in January and continued to discuss its importance 
thereafter. TR insisted this dispute was not ripe and asked to keep negotiating; and the parties 
agreed to a schedule change for other reasons. TR has collected the agreements and can produce 
them immediately—and certainly before the current May 2 class certification expert deadline.  
TR’s statement that it has until the close of fact discovery in 2023 to produce documents 
responsive to requests served in 2021 is unreasonable. See Patagonia, Inc. v. Anheuser Busch, 
LLC, 2020 WL 6260018, at *1 (C.D. Cal. Feb. 19, 2020). Besides, Plaintiffs took down a dispute 
in February over TR’s production timing based on its promises that productions would be 
substantially completed by March 31, 2022 and that it would ramp up its production. It is troubling 
that TR has not abided by this schedule. 
As we have explained, courts have consistently held that parties cannot use confidentiality 
agreements as roadblocks to discovery. And Seegert does not help TR—the court there concluded, 
contrary to TR’s position, that third-party confidentiality agreements do not limit a party’s 
discovery obligations. 2019 WL 12044514, at *7. The only difference in Seegert was that the 
parties jointly agreed to a protective order setting out a notification-and-objection procedure. Id. 
at *4. With no such agreement here, TR has no legal or procedural basis for its position. 
Case 3:21-cv-01418-EMC     Document 81     Filed 03/24/22     Page 4 of 4

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