In Lathrop v. Uber Technologies, Inc., 2016 WL 3648596, at *2-3 (N.D.Cal., 2016), Judge Tygar deferred ruling on Uber’s summary judgment motion until Plaintiff had an opportunity to do a bunch of discovery.
Plaintiffs have satisfied the criteria for granting a Rule 56(d) motion. First, Plaintiffs have timely submitted, with their Rule 56(d) motion, a supporting declaration specifying the reasons why they cannot present facts they believe are essential to their opposition to Uber’s motion for summary judgment. See ECF No. 172; ECF No. 172-1, Zavareei Decl. Discovery is underway, and multiple discovery requests remain outstanding. As Plaintiffs further point out, expert discovery has not yet commenced in this action. Second, Plaintiffs’ 56(d) motion and accompanying declaration and exhibits specify relevant information Plaintiffs seek in discovery « ?i.e., information Uber has in its possession that may establish material facts that could defeat summary judgment. For example, Plaintiffs seek documents regarding the appearance of and text on Uber’s websites. See ECF No. 160. Uber contends in its motion for summary judgment that Plaintiffs provided express consent when Plaintiffs inputted their phone numbers into Uber’s sign-up pages. See ECF No. 146 at 20–23. Plaintiffs argue, however, that they inputted their numbers at the beginning of the sign-up process but did not complete that process. Plaintiffs request consent-related discovery, such as disclaimers that appeared on Uber’s website and any changes to the disclaimers, which would be relevant to whether Class B Plaintiffs provided prior express consent to Uber. See ECF No. 160 (discovery letter brief); ECF No. 187 at 5 (order on discovery letter brief). Plaintiffs also seek information regarding the website screen flows from the time each Class B Plaintiff began their application processes. Plaintiffs point out that the records Uber has provided do not cover the entire class period or the dates and times Class B Plaintiffs began their applications. See ECF No. 172 at 14. Uber provides a depiction of that sign-up page as it appeared on October 4, 2014, and argues that the form “is substantially similar to the partner sig-up forms Plaintiffs would have seen when they signed up to drive with Uber.” ECF No. 146 at 23. Kevin Roth, a senior engineer at Uber, explains that that the partner sign-up page on October 4, 2014, contained the same fields that appeared on the sign-up page between July and September 2014. ECF No. 148, Roth Decl. ¶ 9. Judge Westmore, in her order regarding Plaintiffs’ request for this web portal discovery, found that Plaintiffs’ request for this information was relevant to the issue of consent. ECF No. 187 at 5. She ordered the parties to meet and confer regarding alternatives to the discovery sought by Plaintiffs. Judge Westmore also permitted the parties to file a renewed joint letter explaining the parties’ respective proposals on this matter should they not come to an agreement. Id. This discovery dispute and production have not yet resolved. By way of a third example, Plaintiffs also note Roth sent an email with his source code analysis to in-house counsel regarding the versions of Uber’s website each Class B plaintiff saw. The parties, however, dispute whether this information is privileged and whether Uber waived any claim of privilege by first revealing the existence of this document. See ECF No. 190 at 15. The Court finds that Plaintiffs have identified specific, relevant information that pertain to issues central to Uber’s motion for summary judgment. Third, Plaintiffs have shown a basis for believing that the information they seek exists. For example, Uber has access to “legal copy,”1 but objects to providing it to Plaintiffs because it would be burdensome. Kevin Roth has testified that he could determine the date legal copy actually appeared on certain websites for the first time, but that he was uncertain how long that process would take. Plaintiffs identify the specific email in which Roth provided his source code analysis and have requested this document. Fourth, Plaintiffs have shown that the additional discovery they request could potentially lead to evidence that would defeat the summary judgment motion. Some of the outstanding discovery Plaintiffs seek from Uber relates to whether Plaintiffs provided express consent and whether Plaintiffs revoked that consent. As Judge Westmore recently noted, the discovery referenced in the parties’ second discovery brief is relevant to establishing whether Plaintiffs knowingly released their numbers and provided prior express consent. ECF No. 176 at 5. Fifth, Plaintiffs have diligently pursued discovery. Parties have vigorously disputed the scope of discovery requested by Plaintiffs, which has been the source of no less than five discovery letter briefs to date. In light of these discovery efforts, and the number of outstanding discovery requests, the Court concludes that a hearing on Uber’s summary judgment would be premature. Plaintiff’s motion to defer consideration of that summary judgment motion is granted.