Joint Case Management Statement and Rule 26(f) Report filed by Caroline Anderson — In re Plaid Inc. Privacy Litigation (Dkt. 93, N.D. Cal. No. 4:20-cv-03056)

Record facts

U.S. District Court for the Northern District of California · No. 4:20-cv-03056-DMR · Doc. 93 · 2020-05-04 · Docket on CourtListener

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JOINT CASE MANAGEMENT STATEMENT 
NO. 4:20-CV-03056-DMR 
 
HERRERA PURDY LLP 
Shawn M. Kennedy (SBN 218472) 
skennedy@herrerapurdy.com 
Andrew M. Purdy (SBN 261912) 
apurdy@herrerapurdy.com 
Bret D. Hembd (SBN 272826) 
bhembd@herrerapurdy.com 
4590 MacArthur Blvd., Suite 500 
Newport Beach, CA 92660 
Tel: (949) 936-0900 
Fax: (855) 969-2050 
 
LIEFF CABRASER HEIMANN & 
BERNSTEIN, LLP 
Rachel Geman (Pro Hac Vice) 
rgeman@lchb.com 
Rhea Ghosh (Pro Hac Vice) 
rghosh@lchb.com 
250 Hudson Street, 8th Floor 
New York, NY 10013-1413 
Tel: (212) 355-9500 
Fax: (212) 355-9592 
BURNS CHAREST LLP 
Warren T. Burns (Pro Hac Vice) 
wburns@burnscharest.com 
Russell Herman (Pro Hac Vice) 
rherman@burnscharest.com 
900 Jackson Street, Suite 500 
Dallas, TX 75202 
Tel: (469) 904-4550 
Fax: (469) 444-5002 
Interim Co-Lead Class Counsel 
(Additional counsel on signature page) 
GIBSON DUNN & CRUTCHER LLP  
ETHAN D. DETTMER, SBN 196046  
edettmer@gibsondunn.com 
ABIGAIL A. BARRERA, SBN 301746 
abarrera@gibsondunn.com 
ASHLEY J. HODGE, SBN 287653 
ahodge@gibsondunn.com 
ANTHONY D. BEDEL, SBN 324065 
tbedel@gibsondunn.com 
555 Mission Street, Suite 3000 
San Francisco, CA 94105 
Telephone: 415.393.8200 
Facsimile: 415.393.8306 
GIBSON, DUNN & CRUTCHER LLP 
ALEXANDER H. SOUTHWELL (pro hac vice) 
 asouthwell@gibsondunn.com 
200 Park Avenue, 48th Floor 
New York, NY 10166 
Telephone: 212.351.4000 
Facsimile: 212.351.4035 
 
Attorneys for Defendant PLAID INC. 
 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
OAKLAND DIVISION 
 
IN RE PLAID INC. PRIVACY  
LITIGATION 
Master Docket No.: 4:20-cv-03056-DMR 
 
JOINT RULE 26(F) REPORT AND 
INITIAL CASE MANAGEMENT 
CONFERENCE STATEMENT 
 
 
Hon. Donna M. Ryu 
Action Filed: 
May 4, 2020 
Trial Date:  
None Set 
THIS DOCUMENT RELATES TO:  
ALL ACTIONS 
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Counsel for Plaintiffs and Defendant Plaid Inc. (“Plaid” or “Defendant”) have met and 
conferred as required by Fed. R. Civ. P. 26(f). Pursuant to Rule 26(f), Civil Local Rule 16-9, and the 
Standing Order for All Judges of the Northern District of California, the Plaintiffs and Plaid submit 
the following Joint Rule 26(f) Report and Initial Case Management Conference Statement. The 
parties were able to reach agreement on certain issues. Topics upon which the parties were not able to 
agree are addressed with separate statements setting forth their respective positions. 
1. 
JURISDICTION AND SERVICE 
a. 
Plaintiffs’ Statement 
As set forth in Plaintiffs’ Consolidated Class Action Complaint, filed on August 5, 2020 (Dkt. 
61, the “Complaint”), this Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. 
§§ 1331, 1332 and 1367, and has personal jurisdiction over Defendant as it operates a business 
headquartered in the Northern District of California. Plaid, the sole defendant named in the 
Complaint, has been properly served with process. 
b. 
Plaid’s Statement 
Plaintiffs contend that the Court has jurisdiction over this action under 28 U.S.C. §§ 1331, 
1332(d), and 1367.  No issues exist with respect to personal jurisdiction or venue.  Plaid’s Motion to 
Dismiss challenges whether this case presents a justiciable controversy.  No parties remain to be 
served. 
2. 
FACTS 
a. 
Plaintiffs’ Statement 
This litigation addresses Plaid’s collection and use of Plaintiffs’ financial account login 
credentials, and unauthorized extraction, sale, and use of Plaintiffs’ sensitive banking information, in 
violation of their privacy rights and state and federal statutes.  
Plaid’s Acquisition of Sensitive Login Credentials Via Spoofing Bank Websites 
Plaid takes consumers’ financial account login credentials by means of its “Plaid Link” 
software that it embeds in consumer-facing financial technology (fintech) apps such as Venmo, 
Coinbase, Cash App, and Stripe. Plaid’s technology mimics, or “spoofs” bank login screens, 
complete with the bank’s logo and branding, and directs consumers to enter their financial account 
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credentials. Plaid does not disclose that the login screens are created and controlled by Plaid, not 
banks. Plaid has acquired access to consumers’ financial accounts in this way, with increasing 
sophistication over time, since at least 2013. Plaid executives have acknowledged its technology was 
“optimized” to provide a false sense of comfort to consumers by concealing that they are interacting 
with Plaid rather than their financial institutions. Plaid’s deceit was purposeful and intentional. 
Plaintiffs are users of fintech apps whose financial accounts were linked via Plaid’s software. 
Plaid’s Unauthorized Collection of Private Banking Data 
Upon obtaining consumers’ login credentials, Plaid establishes direct, unlimited, and ongoing 
access of their financial account information. For each consumer, Plaid downloads years’ worth of 
transaction history for every single account they have connected to that bank (such as checking, 
savings, credit card, and brokerage accounts), regardless of whether the data in any of the accounts 
bears any relationship to the app for which the consumer signed up. Financial account data includes 
not only details about transaction amounts, but also other private information such as the time and 
place that transactions occurred. Plaid automatically and consistently updates its cache of consumers’ 
private information, every few hours, regardless of whether the consumer takes any further action. 
Thus, a consumer who makes a single mobile payment on an app from a checking account 
unwittingly gives Plaid years’ worth of forward- and backward-looking insights into their private 
lives from every account the consumer maintains with the bank, including accounts maintained for 
others such as relatives and children. As of early 2020, Plaid had amassed a trove of data from over 
200 million distinct financial accounts. 
Plaid’s Unauthorized Sale and Use of Private Banking Information 
Plaid exploits its ill-gotten information in a variety of ways, including selling the data to its 
app customers, analyzing the data to derive insights into consumer behavior, and, most recently, 
selling its data to Visa as part of a multi-billion dollar acquisition.  
Plaid has admitted that it routinely sells the consumer banking data it collects, including at a 
minimum to the Participating Apps who use its services. Plaid calibrates its prices based on the 
information being purchased. Plaid fails to exercise control or oversight into how purchasers store 
and use the sensitive banking and other private consumer data it sells. Plaid also derives additional 
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valuable benefits for its business by “enriching” the data (e.g., combining it with other data), applying 
machine learning and other analytics, and creating services from the data to further enrich Plaid.  
Principal Factual Issues in Dispute 
Plaid’s motion to dismiss (Dkt. 78) raises a host of fact-bound questions that cannot be 
resolved without discovery (while at the same failing to acknowledge the detailed facts Plaintiffs 
actually alleged). Principal among the fact-bound questions are: (1) whether Plaid omitted and failed 
to disclose information to Plaintiffs and the Classes; (2) whether the information omitted and 
withheld was material; (3) whether Plaid’s omissions and nondisclosures were intentional; (4) 
whether Plaintiffs in fact had their financial account credentials acquired by Plaid; (5) whether Plaid 
sells or profits from the data it collects; (6) whether Plaid’s acquisition and use of Plaintiffs’ data 
violates a privacy interest; and (7) whether Plaid’s conduct is a serious breach of social norms.   
Plaintiffs further observe that Plaid’s characterization of the facts is contradicted by the 
allegations in the Complaint, Plaid’s own documents as cited in the Complaint, and, at minimum, are 
proper subjects of discovery. 
b. 
Plaid’s Statement 
 Plaintiffs’ CAC is rife with inaccuracies and misrepresentations regarding Plaid, its business, 
and its data-processing practices, and most of those inaccuracies and misrepresentations depend on 
simply ignoring Plaid’s publicly-available Privacy Policy and Plaid Link consent flow.  Plaid is a 
technology company, headquartered in San Francisco, that enables end users to connect their 
financial accounts to the apps of their choosing.  By enabling end users to control and share their 
data, Plaid makes it possible for end users to use the financial services provided by their chosen apps, 
thereby democratizing access to financial services. 
Plaintiffs’ CAC—which is based on the claim that Plaid does not disclose how it operates—
cannot be squared with Plaid’s fulsome public disclosures to end users about how it collects and uses 
data.  Plaid makes its data policies and practices clear on its website and in its End User Privacy 
Policy (the “Privacy Policy”), to which all Plaintiffs had reasonable access, consistent with applicable 
legal standards.  Contrary to Plaintiffs’ claim, Plaid has not failed to disclose its practices to end users 
and in fact obtains consent to access and collect end users’ data.  Plaid does not sell or rent data, and 
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Plaintiffs’ assertion that Plaid has admitted to routinely selling consumer banking data is false.  These 
facts are made clear in Plaid’s Privacy Policy.  In addition, Plaintiffs’ assertion that “Plaid calibrates 
its prices based on the information being purchased” is fundamentally wrong and based on the 
assertion—falsified by Plaid’s Privacy Policy—that Plaid sells the data it collects, which it does not. 
Plaintiffs also falsely characterize Plaid Link—Plaid’s technology through which apps enable 
end users to connect their financial accounts to their apps so they can use financial services provided 
by those apps.  Plaintiffs reproduce one Plaid Link screen in the CAC, but ignore the others that give 
the lie to their false narrative that Plaid Link is a tool that imitates bank login screens to “trick” end 
users into providing their login credentials.  That is a red herring.  The vast majority of financial 
institutions have not implemented (and do not have the technological resources to implement) an 
OAuth protocol, which entails building and providing a dedicated API endpoint to enable end users 
to share their data after the institution itself verifies the user’s identity.  Plaid aims to provide all end 
users—regardless of the sophistication of the end user’s financial institution—access to the fintech 
marketplace, and Plaid successfully does this by streamlining the authentication and authorization 
process for end users through Plaid Link.  Plaid does not “spoof” bank login screens in order to more 
easily enable end users to connect their financial accounts to the apps of their choice.  As evidenced 
by Plaintiffs’ own CAC, end users connecting their accounts through Plaid Link are told their chosen 
app “uses Plaid to link to your bank,” and that by choosing to “continue” (i.e., to engage with and 
proceed through the linking process), end users consent to Plaid’s Privacy Policy, which clearly 
explains how Plaid collects and processes their data.  See, e.g., CAC ¶ 67.  The claim that Plaid does 
not have authorization to collect such data is belied by the disclosures in its Privacy Policy.   
Plaintiffs also ignore the fact that end users choosing to connect their accounts through certain 
apps that have implemented Plaid Link can choose not to use Plaid or can disconnect their accounts at 
any time.  Notably, Plaintiffs fail to allege that they even linked their financial accounts to their 
chosen apps using Plaid or that they ever asked Plaid to delete their data. 
Further, Plaid’s data-processing practices do not “invade users’ reasonable expectation of 
privacy[,]” as Plaid clearly discloses how it collects and process data.  As explained in Plaid’s Motion 
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to Dismiss (Dkt No. 78) (which does not raise any factual disputes), Plaintiffs have failed to allege 
any facts to support their CAC and Plaintiffs’ claims are barred by the relevant statutes of limitation.   
Contrary to Plaintiffs’ claims, there are not numerous questions of fact pertinent to this case, 
and Plaintiffs’ laundry list of alleged factual issues in dispute are largely legal issues Plaintiffs cast as 
factual questions to bolster their response to Plaid’s Motion to Dismiss, or are based on Plaintiffs 
simply ignoring inconvenient publicly-available documents. 
3. 
LEGAL ISSUES 
a. 
Plaintiffs’ Statement 
As alleged in the Complaint, there are numerous questions of law or fact common to the 
Classes. (See, e.g., Complaint (Dkt. 61), ¶¶ 145(1)-(25).) At the center of this litigation are Plaid’s 
policies and practices which it carries out uniformly with respect to Plaintiffs and the proposed 
Classes. Questions for the eventual trier-of-fact to determine will include whether Plaid’s practices 
invaded users’ reasonable expectation of privacy and constitute an actionable breach of societal 
norms, and what are the appropriate legal and equitable remedies for the Classes.  
In its motion to dismiss, Plaid raises arguments about standing and about the sufficiency of 
Plaintiffs’ claims. Plaid’s arguments lack merit, as will be explained in detail in Plaintiffs’ opposition 
brief, and as Plaintiffs previewed in their opposition to Plaid’s Motion to Continue. 
b. 
Plaid’s Statement 
 Plaid does not agree that the CAC raises disputed factual issues regarding Plaid’s conduct, in 
light of Plaid’s publicly-available disclosures.  Should the case proceed past the pleadings, the 
disputed legal issues include: 
1. Whether Plaintiffs had any actionable interactions with Plaid supporting a legally 
cognizable claim; 
2. Whether Plaintiffs and other putative class members sustained any harm or 
incurred any damages as a result of Plaid’s alleged conduct; 
3. Whether Plaintiffs and other putative class members’ claims are redressable; 
4. Whether Plaintiffs’ claims are barred by the applicable statutes of limitation; 
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5. Whether Plaintiffs’ equitable claims are barred because they have an adequate 
remedy at law; 
6. Whether Plaintiffs’ and other putative class members’ claims meet the requisite 
pleading standards; 
7. Whether Plaintiffs can establish any elements of any of the causes of action they 
allege; and 
8. Whether Plaintiffs’ and other putative class members’ claims meet the class 
certification requirements of Fed. R. Civ. P. 23. 
4. 
MOTIONS 
a. 
Plaintiffs’ Statement 
On September 14, 2020, Plaid filed a motion to dismiss the Complaint (Dkt. 78). Plaintiffs’ 
opposition brief is due November 13, 2020, and Plaid’s reply thereto will be due December 4, 2020 
(see Dkt. 57). Various administrative motions also have been filed, none of which remain pending. 
Plaintiffs anticipate filing a motion for class certification. Following determination on Rule 23 
issues, Plaintiffs reserve the right to move for affirmative summary judgment on discrete issues or 
claims, as appropriate, mindful of the high burden on summary judgment.   
Plaid’s statement is vague as to the timing of its motions, but to the extent Plaid’s statement 
proposes early or placeholder motions on summary judgment, far before the close of discovery and 
before class certification, Plaintiffs observe this is inefficient and premature. See True Health 
Chiropractic Inc v. McKesson Corp., No. 13-02219, 2015 WL 273188, at *2 (N.D. Cal. Jan. 20, 
2015) (rejecting request for period of “initial discovery” regarding the plaintiffs for summary 
judgment purposes in light of inefficiencies and the delay it would cause in court’s ability to 
adjudicate class certification); see also Zell v. InterCapital Income Sec., Inc., 675 F.2d 1041, 1049 
(9th Cir. 1982) (reversing grant of summary judgment as premature before  “plaintiff ha[d] been 
afforded reasonable discovery”); United States v. Real Prop. & Improvements, No. 13-02027, 2014 
WL 3704041, at *3 (N.D. Cal. 2014) (where the court “recently extended all case deadlines, 
including discovery deadlines ... the [c]ourt would be spinning its wheels by considering a summary 
judgment motion when the parties have not had time to develop an adequate factual record”). Even if, 
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arguendo, Plaid wanted to challenge the claims of a particular Plaintiff, other Plaintiffs would remain 
as class representatives, or, subject to Court approval, would be substituted in.1 Plaintiffs’ additional 
responses to Plaid’s proposed subjects for discussion are in section 8 below.     
b. 
Plaid’s Statement 
 Plaid’s Motion to Dismiss the CAC is currently being briefed to the Court. 
Plaid anticipates opposing Plaintiffs’ motion for class certification under Rule 23, and may 
file motions for summary judgment or partial summary judgment.  Plaid anticipates opposing any 
motion for summary judgment filed by Plaintiffs.  Plaid further anticipates filing motions in limine, 
motions to exclude expert testimony, and motions to strike and/or compel, if necessary. 
5. 
AMENDMENT OF PLEADINGS 
a. 
Plaintiffs’ Statement 
Plaintiffs reserve their right to amend the Complaint consistent with Fed. R. Civ. P. 15, 
including to the extent any order from the Court requires or permits further amendment. 
b. 
Plaid’s Statement 
 Plaid submits that any amendment of the pleadings would be futile and reserves all rights to 
oppose any such amendment. 
6. 
EVIDENCE PRESERVATION 
The parties have reviewed the Guidelines Relating to the Discovery of Electronically Stored 
Information and have met and conferred pursuant to Federal Rule of Civil Procedure 26(f) regarding 
reasonable and proportionate steps taken to preserve evidence relevant to the issues reasonably 
evident in this action. The parties represent that they are aware of and complying with their 
preservation obligations under Pretrial Order No. 1 to take reasonable steps to preserve all 
documents, data, and tangible things containing information potentially relevant to the subject matter 
of this litigation. The parties will submit any unresolved disputes to the Court by appropriate motion 
and will submit a separate proposed order covering the discovery of electronically stored information. 
 
1 Robichaud v. SpeedyPC Software, No. C 12 04730 LB, 2013 WL 818503, at *8 (N.D. Cal. Mar. 5, 
2013) (in “class actions, where a named Plaintiff’s individual claims fail or become moot for a reason 
that does not affect the viability of the class claims, courts regularly allow or order the plaintiffs’ 
counsel to substitute a new representative plaintiff”) (collecting cases; internal citations omitted). 
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A. 
Plaintiffs’ Statement 
Plaintiffs will request that Plaid produce relevant electronically stored information pursuant to 
a Stipulated ESI protocol.  
B. 
Plaid’s Statement  
Plaid is aware of and complying with its preservation obligations.  Plaid requests that all 
Plaintiffs represent that they are preserving all relevant electronically stored information in 
compliance with their preservation obligations. 
In response to Plaintiffs’ statement regarding production, Plaid will produce relevant, 
responsive, and non-privileged electronically stored information at the appropriate time, pursuant to 
the proportionality requirements of Rule 26 and a Stipulated ESI protocol, on which Plaid agrees to 
meet and confer with Plaintiffs.  Plaid expects that Plaintiffs will do the same. 
7. 
DISCLOSURES 
The parties will serve their initial disclosures on October 5, 2020. 
8. 
DISCOVERY 
With regard to the timing and scope of discovery, the parties submit the following statements. 
a. 
Plaintiffs’ Statement 
The parties conducted their Rule 26(f) conference on September 30, 2020. Upon the 
conclusion of the Rule 26(f) conference, discovery opened for all purposes.  
i. 
Plaintiffs’ Burden on Rule 23 and Implications for Discovery 
Plaintiffs will propound discovery to adequately prepare for class certification and trial. To 
that end, they must be permitted to develop a complete record before class certification. See Wal–
Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011) (class certification determination requires a 
“rigorous analysis” that necessarily “will entail some overlap with the merits of the plaintiff's 
underlying claim” to assess whether Rule 23 satisfied). Although certification is not an actual “mini-
trial” with the “formal strictures of trial,” “[a] plaintiff seeking class certification bears the burden of 
affirmatively demonstrating “through evidentiary proof that the class meets the prerequisites of Rule 
23(a).” Sali v. Corona Regional Medical Ctr., 909 F.3d 996, 1003-04 (9th Cir. 2018) (internal 
citations omitted).  
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Thus, as this Court has noted, “the ‘rigorous analysis’ contemplated by the Supreme Court’s 
recent class certification rulings requires discovery and development of the record.” Mason v. 
Ashbritt, Inc., No. 18-CV-07181-DMR, 2020 WL 789570, at *4 (N.D. Cal. Feb. 17, 2020). It simply 
“ignores the realities” of “class action litigation today” to limit discovery pre-certification. Ahmed v. 
HSBC Bank USA, Nat’l Ass’n, No. 152057, 2018 WL 501413, at *3–4 (C.D. Cal. Jan. 5, 2018). Gone 
are the days, for example, when it arguably made some sense to bifurcate certain discovery subjects 
as related to class certification only. See, e.g., Hibbs-Rines v. Seagate Techs., LLC, No. 08-5430, 
2009 WL 513496, at *3 (N.D. Cal. Mar. 2, 2009) (because “class determination generally involves 
considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of 
action,” pre-certification merits discovery “is integral to developing the shape and form of a class 
action”) (internal quotation marks omitted); H. Newberg and A. Conte, Newberg on Class Actions, § 
7.8 (4th Ed. 2002) (“Discovery on the merits should not normally be stayed pending so-called class 
discovery, because class discovery is frequently not distinguishable from merits discovery, and 
classwide discovery is often necessary as circumstantial evidence even when the class is denied. Such 
a discovery bifurcation will often be counterproductive in delaying the progress of the suit for orderly 
and efficient adjudication.”). In a class action case such as this one, all or virtually all discovery must 
be open from the beginning. See Garcia v. Enter. Holdings, Inc., No. 14-00596, 2014 WL 4623007, 
at *2 (N.D. Cal. Sept. 15, 2014); Chen-Oster v. Goldman, Sachs & Co., 285 F.R.D. 294, 299-300 
(S.D.N.Y. 2012) (collecting cases “illustrat[ing] the need to develop the record fully before a class 
motion is considered”).  
In accordance with their well-established burden, Plaintiffs anticipate that discovery will be 
required on a number of topics relevant to the parties’ claims or defenses and proportional to the 
needs of the case, including the following2: 
(a) 
Plaid’s use of spoofed bank login screens in its software, including research or data 
 
2 Plaintiffs will also seek standard discovery about company organization and document/data 
existence and location. Plaintiffs further note that as to certain topics the parties may be able to use 
stipulations or Requests for Admission to the extent Plaid may be willing to concede to certain facts, 
such as (among many others) the fact, reflected in its API, that it scrapes consumer data multiple 
times a day.  
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relating to the benefits of using bank logos and color schemes and increased customer conversion; 
(b) 
Disclosures made by Plaid and/or its clients to consumers; 
(c) 
Versions of Plaid’s software from 2013 to the present, including the software 
development kits Plaid released for use in web, iOS, and Android apps; 
(d) 
The identity and business model of each Participating App, as well as the Plaid 
products used at various dates; 
(e) 
Methods Plaid used to access consumers’ financial accounts using their login 
information, then collect and transfer consumer data from various financial institutions and the scope 
of data collected; 
(f) 
The ways in which Plaid used the consumer data, financially and otherwise, that it 
accessed from financial institutions; 
(g) 
Agreements between Plaid and (1) various financial institutions, and (2) its clients; 
(h) 
The nature of Plaid’s monitoring, oversight, or approval of its clients’ disclosures to 
consumers and use of consumer data, including compliance with federal and state standards for 
disclosures, privacy, and data protection; 
(i) 
Plaid’s public-facing characterizations of its activities, including but not limited to 
testimony and written responses to government entities; 
(j) 
Revenues and profits generated by Plaid; 
(k) 
Plaid’s motives, intent, and knowledge with respect to non-disclosures and omissions 
alleged in the operative Complaint; 
(l) 
Documents about the Named Plaintiffs; 
(m) 
The formation of Plaid in 2012; and 
(n) 
The sale of Plaid and its consumer data to Visa. 
Plaintiffs propose a schedule for discovery to proceed as set forth in Section 17 below.  
Plaintiffs anticipate requiring discovery from Plaid of certain electronically stored information 
in its native form. To ensure that all such information is identified and any disputes over form of 
production are handled efficiently at the outset, Plaintiffs have suggested that the parties engage in 
informal discussions about Plaid’s electronically stored information, followed by an early deposition 
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under Rule 30(b)(6) to identify all potential sources of relevant electronically stored information. 
ii. 
Response to Plaid’s Statement  
Plaid’s statement, below, seeks a dramatic and unjustified deviation from the rules of 
discovery and the precedent in this Circuit, in that Plaid seeks to produce limited material only on 
subjects of its choosing (rather than those subjects relevant to the claims). This is not the law. Fed. R. 
Civ. P. 26(b)(1); Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981) (request to limit discovery 
requires a showing of “good cause”); see also In re Seagate Tech. II Sec. Litig., No. 89-2493, 1993 
WL 293008, at *1 (N.D. Cal. June 10, 1993) (rejecting proposal to limit discovery as “artificial, 
arbitrary and designed to avoid the production of relevant documents . . . Discovery is not to be 
arbitrarily limited because it is intended to help clarify the issues.”). In seeking to truncate discovery, 
Plaid also (and improperly) seeks to re-litigate its failed motion to stay discovery (Dkt. No. 89), 
without even attempting to show any change in the law or the facts, as would be required in a 
properly-postured motion for reconsideration.   
To illustrate the practical inefficiency of Plaid’s proposal (in addition to its procedural 
unsuitability), Plaintiffs respond to the two specific topics on which Plaid seeks to limit discovery: (a) 
a subset of Named Plaintiff-related information, and (b) damages. Limiting discovery to the Named 
Plaintiffs is untenable because this is a class action case, and the Plaintiffs have the obligation to 
show (and the right to discovery to demonstrate) their claims are typical of those of the class and 
common. Fed. R. Civ. P. 23(a)(2), (3). They also have the obligation to show (and the right to 
discovery to demonstrate) the other elements of Rule 23(a) as well as 23(b). Thus, Plaid must 
produce documents and ESI reflecting its practices in first obtaining consumers’ private banking 
information, continuing to scrape that information, and use of that information.     
Limiting discovery to damages, without producing discovery on liability, likewise is 
unjustified for a number of reasons. One, it is unclear what discovery on economic harm means in a 
vacuum, unaccompanied by discovery showing the fact and scope of Plaid’s liability. For example, 
recoverable damages and economic remedies turn in part upon the defendant’s enrichment through 
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conduct that is unjust, requiring an evaluation of the liability case.3 Similarly, with respect to another 
category of damages, Plaintiffs would not be able to prove their entitlement to punitive damages 
without showing whether Plaid’s conduct rose to applicable levels of willfulness/wantonness. Two, 
even aside from Plaintiffs’ actual damages, Plaintiffs seek statutory damages for many of their 
claims. Compl. at ¶¶ 297, 355, 311, 348, 363, 378. It therefore makes no sense to carve out one 
category of damages to litigate before liability. Three, Plaintiffs seek equitable and injunctive relief, 
including data purging, which Plaid foreseeably would resist doing absent a liability determination. 
Plaid’s proposal, at best, invites the odd and patently inefficient phasing of damages, liability, 
damages again, and other remedies. Plaid cites no authority for its proposal.  
Even if any limitations comported with the law and regular practice (which they do not), and 
even if these particular limitations made sense (which they do not), an additional, and fundamental, 
problem is that it would be difficult to delimit when Plaid’s proposed categories begin and end. See 
also, e.g., Ahmed, 2018 WL 501413, at *3 (analyzing dozens of cases and concluding that bifurcation 
is highly inefficient because it simply creates “additional litigation” about the difference between 
class and merits discovery); In re Plastics Additives Antitrust Litig., No. 03-2038, 2004 WL 2743591, 
at *3-4 (E.D. Pa. Nov. 29, 2004) (“[T]he distinction between merits-based discovery and class-related 
discovery is often blurry, if not spurious.”). In short, Plaid ignores that this is a class case, and even 
beyond that wants to unilaterally determine the bounds of (and severely limit) discovery. This flouts 
Rule 26(b)(1) as well as Rule 23 of the Federal Rules of Civil Procedure, is inconsistent with 
established practice in similar cases (as noted above), and is impracticable and prejudicial.4   
With respect to Plaid’s suggestion that entry of a protective order should impact the timing of 
the parties’ exchange of “information or discovery,” Plaintiffs disagree to the extent such information 
 
3 See, e.g., In re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 600 (9th Cir. 2020) (“[W]here 
a benefit has been received by the defendant but the plaintiff has not suffered a corresponding loss, or 
in some cases, any loss, but nevertheless the enrichment of the defendant would be unjust, the 
defendant may be under a duty to give to the plaintiff the amount by which the defendant has been 
enriched.”) (citation and quotation marks omitted). 
4 Given that the parties have not yet exchanged Initial Disclosures, it is premature to estimate the 
precise number of depositions and written discovery requests Plaintiffs will require for adequate 
discovery in this action. However, enlargements to the limits established by the Federal Rules are 
often warranted in consolidated complex litigation such as this, and Plaintiffs will seek such 
enlargements by stipulation or administrative motion if, as anticipated, the need becomes apparent.   
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or discovery is not properly subject to protection under the Federal Rules. Plaintiffs further submit 
that, consistent with this Court’s standing order ¶ 15 that the parties “shall, where practicable, use one 
of the model stipulated protective orders,” the appropriate model protective order for this action is the 
Model Protective Order for Litigation Involving Patents, Highly Sensitive Confidential Information 
and/or Trade Secrets. In the event the parties are unable to reach agreement on the precise terms of a 
stipulated protective order within two weeks of the Case Management Conference, Plaintiffs submit 
that the parties should comply with the terms set forth in that model order. Alternatively, Plaintiffs 
request that the Court order that a stipulated Protective Order be submitted within two weeks of the 
Case Management Conference, as has been effective in other privacy cases. See, e.g. In re Yahoo! 
Inc. Customer Data Security Breach Litigation, (N.D. Cal.), ECF No. 68. Plaid should not be 
permitted to use the possibility of delay in reaching agreement on the terms of the protective order as 
yet another means of attempting to stall discovery in this action. 
b. 
Plaid’s Statement 
Status of discovery.  No discovery has occurred to date.   
Limitations or modifications.  At this time, and in light of the limited discovery Plaid 
submits is needed to address the threshold questions of Plaintiffs’ interactions with Plaid (or lack 
thereof) and/or lack of damages in order to maximize efficiencies for the parties and the Court, Plaid 
submits that the discovery rules related to requests for admission and the number of and time allowed 
for fact depositions should not be modified.  Plaid reserves its right to seek additional limitations or 
modifications at a later date. 
E-discovery order.  Plaid agrees to meet and confer with Plaintiffs regarding a Stipulated ESI 
protocol governing the disclosure, discovery, and preservation of electronically stored information.  
In the event the parties reach agreement regarding the terms of such an ESI protocol, it will be 
submitted to the Court for review and approval.  If the parties cannot reach agreement, they reserve 
all rights to seek guidance from the Court. 
Rule 26(f) discovery plan and proposed Court orders.  The scope of discovery will depend 
on the Court’s ruling on Plaid’s Motion to Dismiss, as well as whether Plaintiffs even interacted with 
Plaid or suffered any cognizable damage.  Plaid submits that discovery should be stayed until after 
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the Court rules on Plaid’s Motion to Dismiss, which provides a basis for complete dismissal of this 
case or of substantial portions of this case.  However, in light of the Court’s ruling denying Plaid’s 
Motion to Continue the CMC, Plaid submits that fact discovery should be prioritized with initial fact 
discovery focusing on the issues of:  (1) whether Plaintiffs in fact used Plaid to link their financial 
accounts with their apps; and (2) whether Plaintiffs suffered any cognizable harm based on their use 
of Plaid (if any).  Prioritizing discovery in this manner is likely to lead to a very early, focused 
motion for summary judgment or summary adjudication on the grounds that Plaintiffs did not interact 
with Plaid, and/or suffered no harms as a result of Plaid’s acts or omissions.  Such focused discovery 
and early dispositive motions will maximize the efficient management of the litigation consistent 
with Rule 1, either resolving the case, or significantly altering its scope to avoid unnecessary and 
costly discovery and potentially lead to negotiated settlement.  Plaid submits that this first phase of 
fact discovery commence when discovery opens, with a cutoff date of February 12, 2021.    
Based on this discovery, the parties will have the opportunity to file early, focused motions 
for summary judgment based on the interactions with Plaid or lack thereof, and/or damages.  Plaid 
submits that motions for summary judgment should be filed by March 5, 2021, oppositions thereto 
should be filed on April 5, 2021, and replies should be filed on April 19, 2021.   
At that point, the parties can complete additional fact discovery, if appropriate, and then 
complete expert discovery.   
Plaintiffs’ description of the issues for potential discovery are significantly overbroad and 
unwarranted, and they are also premature given the current posture of the case.  Plaid further submits 
that an early 30(b)(6) deposition to identify potential sources of relevant electronically stored 
information is premature at this time, particularly in light of the fact that the focused discovery Plaid 
proposes is likely to substantially narrow the issues potentially relevant to a 30(b)(6) deposition, or 
render such a deposition unnecessary because Plaintiffs have not alleged that they interacted with 
Plaid or suffered any damages from interacting with Plaid, as stated above. 
Prior to exchanging information or documents in discovery, Plaid submits that the parties 
enter into a stipulated protective order covering commercially sensitive, confidential or otherwise 
protected information that may be produced in this litigation by the parties or third parties.  In the 
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event the parties reach agreement regarding the terms of such an order, it will be submitted to the 
Court for review and approval.  If the parties cannot reach agreement, they reserve all rights to seek 
guidance from the Court.  The parties anticipate that this order will include provisions governing the 
inadvertent production of privileged or work product-protected materials.  The parties will further 
request that the Court enter an order under Fed. R. Evid. 502 that the parties’ privileges and 
protections over documents disclosed or used in this case will not be waived by such disclosure or 
use in any other federal or state proceeding. 
Plaintiffs improperly added lengthy legal argument to this joint statement at the eleventh 
hour.  Plaid submits that this Rule 26(f) Report is not the place to litigate the proper handling of this 
matter.  Plaid will be prepared to address such arguments at the case management conference and 
respectfully requests the opportunity to be heard on the late-added and improper legal argument. 
Suffice it to say in this Report that Rule 26(f)(3)(B) explicitly provides that the parties and the Court 
should determine whether the matter can be resolved in a more efficient manner through 
phasing.  Given the Rules’ explicit endorsement of such an approach, this Court’s broad discretion to 
phase discovery to carry out the purposes of Rule 1, and the good sense of this approach, Plaid 
respectfully submits that Plaintiffs’ position is incorrect and should be disregarded. 
9. 
CLASS ACTIONS 
a. 
Plaintiffs’ Statement 
Plaintiffs suggest filing for class certification according to a schedule as set forth in Section 
17, “Scheduling,” below. 
b. 
Plaid’s Statement 
Plaid opposes any effort by Plaintiffs to certify a class under Fed. R. Civ. P. 23.  Because 
class certification briefing will likely require fact discovery, expert reports, and expert discovery, 
Plaid believes setting a class certification briefing schedule is premature at this time. 
10. 
RELATED CASES 
The parties are not aware of any related cases other than those consolidated herein. 
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11. 
RELIEF 
a. 
Plaintiffs’ Statement 
Plaintiffs seek judgment against Plaid and that the Court grant the following: 
• An order determining that this action may be maintained as a class action under Rule 
23 of the Federal Rules of Civil Procedure;  
• Judgment for monetary damages against Plaid for Plaintiffs’ and Class Members’ 
asserted causes of action;  
• Appropriate declaratory relief against Plaid;  
• Injunctive relief in the form of, inter alia, an order requiring Plaid to: (1) purge the 
data it has unlawfully collected; (2) plainly and conspicuously disclose, on the first 
screen of its Plaid Link software, if and when presented to consumers, (a) that Plaid is 
a third party data aggregator providing connection services to consumers’ financial 
institutions for the purpose of collecting private data from their financial institutions, 
(b) that it is not necessary for consumers to connect to their banks using Plaid; and (c) 
that using Plaid’s services will eliminate consumers’ indemnification rights provided 
by financial institutions; (3) obtain, before it connects with a consumer’s financial 
account, affirmative permission from the consumer for each action Plaid takes in 
connection with the account, including accessing, copying, selling, storing, and using 
data; (4) before it connects with a consumer’s financial account, require the consumer 
to review the full text of Plaid’s privacy policy, acknowledge all of the terms and 
conditions by checking boxes to indicate their consent to those provisions, and 
acknowledge receipt and approval of the notice; (5) obtain a consumer’s affirmative 
consent each time Plaid accesses that consumer’s financial account and financial data; 
and (6) notify consumers of Plaid’s actions to remedy its unlawful conduct alleged 
herein, and steps consumers can take to prevent future and additional privacy 
invasions by Plaid and other actors to whom Plaid has sold or otherwise delivered 
their personal information. 
• Injunctive relief in the form of, inter alia, an order enjoining Plaid from: (1) accessing, 
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attempting to access, or procuring transmission of any California Class member’s 
identifying information through their financial accounts; (2) representing that any 
solicitation, request, or action by Plaid is being done by a financial institution; (3) 
retaining any copies, electronic or otherwise, of any identifying information obtained 
through the phishing scheme alleged herein; (4) retaining any copies, electronic or 
otherwise, of any other information obtained from any of Plaintiffs’ or California 
Class members’ financial institutions using identifying information obtained through 
the phishing scheme alleged herein; and (5) engaging in any unlawful activities 
alleged herein; 
• An award of actual, statutory, special, and/or incidental damages as well as restitution; 
• An award of punitive damages, dignitary damages, and exemplary damages; 
• Reasonable attorney’s fees and costs reasonably incurred; and  
• Any and all other and further relief to which Plaintiffs and the Classes may be entitled. 
b. 
Plaid’s Statement 
 Plaid denies that Plaintiffs are entitled to recover any damages, fees, costs, or any injunctive 
or other relief whatsoever.  Plaid further denies that Plaintiffs may maintain this action as a class 
action.  Plaid reserves its right to seek fees and costs associated with defending Plaintiffs’ frivolous 
lawsuit. 
12. 
SETTLEMENT AND ADR 
a. 
Plaintiffs’ Statement 
Plaintiffs submit that private mediation may be appropriate after the ruling on the motion to 
dismiss and after receiving Plaid’s responses to the initial set of discovery.  
b. 
Plaid’s Statement 
 The parties have not made an effort to resolve or settle this case at this time.  If and when 
there is a prospect of settlement, then, at the appropriate time, the parties will seek to settle this matter 
through an appropriate and mutually agreeable alternative dispute resolution mechanism, including 
private mediation. 
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13. 
CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES 
The parties have consented to have the Honorable Donna M. Ryu conduct all further 
proceedings including trial and entry of judgment. 
14. 
OTHER REFERENCES 
The parties have not determined that the case is suitable for a special master or the Judicial 
Panel on Multidistrict Litigation. 
15. 
NARROWING OF ISSUES 
a. 
Plaintiffs’ Statement 
Plaintiffs respectfully submit that permitting the reasonable and proportional discovery they 
have proposed to proceed at this time will provide a means to an efficient resolution of this action and 
assist in the narrowing of issues.   
b. 
Plaid’s Statement 
Plaid submits that its pending Motion to Dismiss should resolve or substantially narrow many, 
if not all, of the issues in this case.  And as noted above, Plaid also submits that—as Plaintiffs have 
not alleged that any of them used Plaid, or interacted with Plaid, at any time, or that they suffered any 
legally cognizable harm—discovery in this case should be prioritized to focus on these critical issues 
first, as this approach is likely to lead to a potential early resolution of this matter, whether through a 
dispositive motion or by making a negotiated settlement more likely. 
16. 
EXPEDITED TRIAL PROCEDURE 
The parties agree this is not the type of case that can be handled under the Expedited Trial 
Procedure of General Order No. 64 Attachment A. 
17. 
SCHEDULING 
The parties have met and conferred about a potential pretrial schedule and submit the 
following separate proposals. 
a. 
Plaintiffs’ Statement 
Plaintiffs propose the following schedule.  
 
Discovery open for all purposes 
September 30, 2020 
Exchange of initial disclosures 
October 5, 2020 
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Informal discussions / Rule 30(b)(6) 
deposition into Plaid’s ESI 
October 2020 
Last date for parties to begin rolling 
document production5 
12/7/2020 
Deadline for completion of document 
production and production of complete 
privilege logs 
4/2/2021 
Close of discovery 
7/16/2021 
Plaintiffs serve class certification motion 
and Rule 23 expert witness report(s), if 
any 
9/17/2021 
Plaid serves class certification opposition 
and Rule 23 expert witness report(s), if 
any 
11/1/2021 
Plaintiffs serve reply in support of motion 
for class certification and rebuttal expert 
report(s), if any 
12/15/2021 
Class certification hearing  
1/7/2022   
Deadline for parties to meet and confer re 
any additional merits discovery 
1/21/2022 
Parties serve merits expert reports 
2/4/2022 
Parties serve opposing/rebuttal merits 
expert reports 
3/4/2022 
Parties serve reply merits expert reports 
3/25/2022 
Expert discovery closes 
4/8/2022 
Deadline for Rule 56 and Daubert motions 
5/6/2022  
Rule 56 and Daubert oppositions 
6/6/2022  
Rule 56 and Daubert replies 
6/20/2022  
Hearing on Rule 56 and Daubert motions 
7/8/2022 
First Final Pretrial Conference  
9/2/2022 
Second Final Pretrial Conference 
9/30/2022 
Trial 
Approx. 30 days after Second Final 
Pretrial Conference  
 
 
5 The parties are expected to produce documents along with responses and objections, if any, to 
document requests. This deadline recognizes that some lag time often exists between the formal 
response date and the actual start of rolling production, but puts an absolute end date on the start of 
document production. It is not intended to be a mechanism for either party to withhold document 
production before that date. 
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b. 
Plaid’s Statement  
 Plaid submits that setting a class certification briefing schedule is premature at this time.  
Accordingly, Plaid proposes the following schedule, for the reasons discussed in Section 8 above:  
Event 
Date 
Initial, focused discovery opens 
9/30/2020 
Exchange of initial disclosures 
10/5/2020 
Close of initial, focused discovery 
2/5/2021 
Deadline for Rule 56 motions on focused 
discovery topics and any related motions 
(motions to strike evidence, Daubert 
motions, etc.) 
 
2/26/2021 
 
Rule 56 and related motion oppositions 
 
3/19/2021  
Rule 56 and related motion replies 
 
4/2/2021 
 
Hearing on Rule 56 and related motions 
 
To follow at the Court’s convenience. 
In the event that the case is not resolved as a result of this focused discovery and motion 
practice, then the parties and the Court can set an expeditious schedule to complete discovery, further 
dispositive motions, and trial. 
18. 
TRIAL 
Plaintiffs seek, and Plaid reserves its right to, a trial by jury. The parties request that the trial 
length, date, and other pretrial deadlines be addressed with the Court after ruling on the relevant 
motions. 
19. 
DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS 
a. 
Plaintiffs’ Statement 
Plaintiffs have filed Certifications of Interested Entities or Persons with the Court. Other than 
putative Class Members and those disclosed by Plaid, Plaintiffs are unaware of any additional non-
party interested entities or persons at this time.  
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b. 
Plaid’s Statement 
 In its May 21, 2020 filing, Plaid disclosed that the following listed persons, associations of 
persons, firms, partnerships, corporations (including parent corporations) or other entities (i) have a 
financial interest in the subject matter in controversy or in a party to the proceeding, or (ii) have a 
non-financial interest in that subject matter or in a party that could be substantially affected by the 
outcome of this proceeding:  New Enterprise Associates, a private company; Spark Capital, a private 
company; Goldman Sachs Investment Partners, a private company; Zach Perret and William Hockey, 
co-founders of Plaid Inc., individuals; Visa, Inc., a publicly traded company (as was publicly 
announced on January 13, 2020, Visa, Inc. entered into an agreement to acquire Plaid Inc.). 
20. 
PROFESSIONAL CONDUCT 
All attorneys of record for the parties have reviewed the Guidelines for Professional Conduct 
for the Northern District of California. 
21. 
OTHER MATTERS 
The parties at this time do not request the attention of the Court with respect to matters other 
than those outlined above. 
// 
// 
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In accordance with Civil Local Rule 5-1, the filer of this document hereby attests that the 
concurrence to the filing of this document has been obtained from the other signatory, below. 
 
Dated:  October 5, 2020 
/s/ Shawn M. Kennedy 
 
 
 
Shawn M. Kennedy (SBN 218472) 
Andrew M. Purdy (SBN 261912) 
Bret D. Hembd (SBN 272826) 
HERRERA PURDY LLP 
4590 MacArthur Blvd., Suite 500 
Newport Beach, CA 92660 
skennedy@herrerapurdy.com 
apurdy@herrerapurdy.com 
bhembd@herrerapurdy.com 
Telephone: (949) 936-0900 
Fax: (855) 969-2050 
 
Nicomedes Sy Herrera (SBN 275332) 
Laura E. Seidl (SBN 269891) 
HERRERA PURDY LLP 
1300 Clay Street, Suite 600  
Oakland, CA 94612 
nherrera@herrerapurdy.com 
lseidl@herrerapurdy.com 
Telephone: (510) 422-4700 
 
Rachel Geman (pro hac vice) 
Rhea Ghosh (Pro Hac Vice) 
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 
250 Hudson Street, 8th Floor  
New York, NY 10013-1413 
rgeman@lchb.com 
rghosh@lchb.com 
Telephone: (212) 355-9500 
Fax: (212) 355-9592 
 
 
Michael W. Sobol (SBN 194857) 
Melissa A. Gardner (SBN 289096) 
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 
275 Battery Street, 29th Floor 
San Francisco, CA 94111-3339 
msobol@lchb.com 
mgardner@lchb.com 
Telephone: (415) 956-1000 
Fax: (415) 956-1008 
 
 
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Christopher J. Cormier (pro hac vice) 
BURNS CHAREST LLP 
4725 Wisconsin Avenue, NW 
Suite 200 
Washington, DC 20016 
Telephone: (202) 577-3977 
Email: CCormier@BurnsCharest.com 
 
 
Warren T. Burns (pro hac vice) 
Russell Herman (pro hac vice) 
BURNS CHAREST LLP 
900 Jackson Street, Suite 500 
Dallas, TX 75202 
wburns@burnscharest.com 
rherman@burnscharest.com 
Telephone: (469) 904-4550 
Fax: (469) 444-5002 
 
 
C. Jacob Gower (pro hac vice) 
BURNS CHAREST LLP 
365 Canal Street, Suite 1170 
New Orleans LA 70130 
jgower@burnscharest.com 
Telephone: (504) 799-2845 
Fax: (504) 881-1765 
 
Interim Co-Lead Class Counsel 
 
  
Dated:  October 5, 2020 
/s/ Ethan D. Dettmer  
 
 
 
Ethan D. Dettmer (SBN 196046) 
Abigail Augus Barrera (SBN 301746) 
Anthony Doc Bedel (SBN 324065) 
Ashley Jada Hodge (SBN 287653) 
GIBSON, DUNN & CRUTCHER LLP 
555 Mission Street, Suite 3000 
San Francisco, CA 94105 
edettmer@gibsondunn.com 
abarrera@gibsondunn.com 
tbedel@gibsondunn.com 
ahodge@gibsondunn.com 
Telephone: (415) 393-8200 
Fax: (415) 986-5309 
 
Case 4:20-cv-03056-DMR     Document 93     Filed 10/05/20     Page 24 of 25

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JOINT CASE MANAGEMENT STATEMENT 
NO. 4:20-CV-03056-DMR 
 
 
Alexander H. Southwell (pro hac vice) 
GIBSON, DUNN & CRUTCHER LLP 
200 Park Avenue 
New York, NY 10166 
asouthwell@gibsondunn.com 
Telephone: (212) 351-4000 
Fax: (212) 351-4035 
 
Counsel for Defendant Plaid Inc. 
 
 
 
 
Case 4:20-cv-03056-DMR     Document 93     Filed 10/05/20     Page 25 of 25

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