BIPA Defendants, Biometric Vendors Have ‘Common Interest Privilege’, Judge Rules

A defendant in a lawsuit under Illinois’s Biometric Information Privacy Act has a right to keep communications with its technology vendor confidential, suggests a recent legal ruling.

Earlier in April, a Northern District of Illinois magistrate judge denied a plaintiff’s motion to compel communications between Union Pacific Railroad Company and the vendors that provided it with fingerprint scanning security gates. The communications in question involved counsel for both Union Pacific and the tech vendors, with Union Pacific arguing that these were protected by the common interest privilege. The court agreed, noting the shared legal challenges related to the biometric technology employed.

The “common interest privilege” is an aptly named legal doctrine that extends the protection of the attorney-client privilege to communications between parties who share a common legal interest, even though they may not be represented by the same attorney. It is often invoked in contexts where multiple parties are facing similar legal issues or are co-defendants in a lawsuit, allowing them to share confidential information without waiving their right to attorney-client privilege.

In this case, the judge’s decision ended with a directive for Union Pacific to produce a privilege log detailing the communications claimed to be protected.

The decision offers “a powerful tool in the BIPA landscape for employers (who are typically the customers in this scenario) and other defendants alike because it supports the ability of BIPA defendants to coordinate their defense strategy,” suggests a legal analysis from the firm Hunton Andrews Kurth, which adds that the judge’s opinion “is also a good reminder, however, that vendors and their customers should use best practices early on in a BIPA litigation to maximize the scope of the common interest doctrine.”

Union Pacific’s alleged BIPA violations are fairly typical. The company’s use of a biometric access control system is not the problem in and of itself; rather, it’s the fact that it failed to get written consent for the collection of biometric data from the truck drivers who used it, as required under BIPA. In December, the company was ordered to produce documents detailing the number of times truckers had to use fingerprint sensors at its facilities—though it’s worth noting that Illinois legislators are now working to amend the law so that fines won’t be levied on a per-scan basis.

Source: The National Law Review

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April 25, 2024 – by Alex Perala