Nike and FullStory Ask Court to Stay Discovery Pending Dismissal in Online Shopping Eavesdropping Suit

Nike and FullStory, defendants in an online shopping privacy lawsuit, argued that they should not have to comply with the plaintiff’s discovery requests while their motion to dismiss pends. The May 6 motion asserted that if the court grants the dismissal request, it would dispose of all of the plaintiff’s claims without requiring the defendants to engage in burdensome and expensive discovery.

The class action complaint, filed in October 2020 and amended two months later, alleges that FullStory “provides software-based services to the other named defendant, Nike, designed to improve Nike’s website and the user experience on the website.” Nike allegedly embedded FullStory’s software code on its retail website to collect data regarding a user’s interactions with the website, including keystrokes, mouse clicks, and page scrolling, the filing states.

The plaintiff chiefly contended that “FullStory eavesdropped on—and Nike aided and abetted the eavesdropping of—plaintiff’s communications with Nike when he visited Nike’s website, and that this conduct violated his right to privacy under California’s Invasion of Privacy Act and the California Constitution,” according to the motion to stay.

One day before filing his amended complaint in December 2020, the plaintiff allegedly served a series of discovery requests and interrogatories on the defendants. Nike and FullStory reportedly asked the plaintiff to agree to a temporary stay of discovery pending a ruling on their motion to dismiss, but he refused.

With the present motion, the defendants urged the court to stay the case because they claim that their dismissal arguments are likely to succeed. They asserted that three other analog cases brought by the same plaintiff’s counsel, Bursor & Fisher P.A., have already been dismissed without the need for discovery.

In addition, they contend that FullStory has a strong argument that the court lacks personal jurisdiction over it. Accordingly, the motion states, and under such circumstances, a stay is strongly favored to avoid wasted resources and time expenditure. 

Finally, the defendants contended that a temporary stay will not prejudice the plaintiff because not only is the litigation fledgling, but he also may not allege deficient claims and then seek discovery to cure their shortcomings. The hearing on this motion is scheduled for the afternoon of May 11 before Judge Fernando L. Aenlle-Rocha in Los Angeles, California.

Nike and FullStory are represented by Covington & Burling LLP.