### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 13

‐ 3037

K EVIN S TERK and J IAH C HUNG

, Plaintiffs

‐ Appellants

,

v.

R EDBOX A UTOMATED R ETAIL

, LLC,

Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 11

‐ cv

‐ 01729

— Matthew F. Kennelly

, Judge

.

____________________

A RGUED S EPTEMBER 26, 2014

— D ECIDED O CTOBER 23, 2014

____________________

Before F LAUM

, M ANION

, and K ANNE

, Circuit Judges

.

F LAUM

, Circuit Judge

. Redbox Automated Retail, LLC out

‐

sources its customer service operations to Stream Global

Services, which fields Redbox customer inquiries through a

customer service call center. To enable Stream to perform

this function, Redbox provides Stream with access to its cus

‐

tomer database, the disclosure of which Kevin Sterk and Jiah

Chung allege violates the Video Privacy Protection Act, 18

U.S.C. § 2710. The district court granted summary judgment2 No. 13

‐ 3037

in Redbox’s favor, concluding that Redbox’s actions fall with

‐

in the statutory exception for disclosures in the ordinary

course of business—more precisely, disclosures incident to

“request processing.” We agree, and therefore affirm the dis

‐

trict court’s decision.

I. Background

Redbox operates automated self

‐ service kiosks—typically

located at grocery stores, convenience stores, or drug

stores—at which customers rent DVDs and Blu

‐ ray discs

with a debit or credit card for a daily rental fee. Although

Redbox owns and operates the machines, the company out

‐

sources certain “back office” functions to various service

providers, including Stream. Stream provides customer ser

‐

vice to Redbox users when, for example, a customer encoun

‐

ters technical problems at a kiosk and requires help from a

live person. In such an event, the Redbox customer can call

the phone number listed on the machine to speak to a cus

‐

tomer service representative to troubleshoot the issue. If res

‐

olution of the customer’s issue requires accessing that cus

‐

tomer’s video rental history—for instance, if a Redbox kiosk

charges the customer’s credit card, but fails to dispense the

selected movie—that call center representative (a Stream

employee) will do so.

So that Stream can perform Redbox’s customer service

functions, Redbox has granted Stream access to the database

in which Redbox stores relevant customer information. To

enable customer service representatives to perform their jobs

capably, Stream trains its employees on how to use the data

‐

base to access the information necessary to respond to cus

‐

tomer inquiries. Plaintiffs object both to Stream’s ability to

access customer rental histories when prompted by a cus

‐No. 13

‐ 3037 3

tomer call and Stream’s use of customer records during the

course of employee training exercises. In plaintiffs’ view,

Redbox’s disclosure of customer information to Stream for

these purposes violates the Video Privacy Protection Act

(“VPPA”).

Enacted in 1988 in response to the Washington City Paper ’s

publication of then

‐ Supreme Court nominee Robert Bork’s

video rental history (a DC

‐ area video store provided it to a

reporter), S. Rep. No. 100

‐ 599, at 5 (1988), reprinted in 1988

U.S.C.C.A.N. 4342, the VPPA prohibits “video tape service

provider[s]” like Redbox from “disclos[ing], to any person,

personally identifiable information concerning any consum

‐

er of such provider.” 18 U.S.C. § 2710(b)(1). Personally iden

‐

tifiable information (“PII”) “includes information which

identifies a person as having requested or obtained specific

video materials or services from a video tape service provid

‐

er.” Id. § 2710(a)(3). But the VPPA provides several excep

‐

tions to the disclosure prohibition, allowing disclosure of a

consumer’s video rental history when the consumer has

provided written consent, when the party seeking disclosure

has obtained a warrant or court order, or (relevant to this

case) when the disclosure is incident to the video tape ser

‐

vice provider’s ordinary course of business. Id. § 2710(b)(2).

The statute instructs that “‘ordinary course of business’

means only debt collection activities, order fulfillment, re

‐

quest processing, and the transfer of ownership.” Id.

§ 2710(a)(2).

Plaintiffs Kevin Sterk and Jiah Chung are Redbox users

who contend that Redbox’s disclosure of their PII to Stream

is not incident to Redbox’s ordinary course of business. Ini

‐ tially, Sterk filed this lawsuit without Chung, alleging in his4 No. 13

‐ 3037

original complaint only that Redbox violated the VPPA’s

“destruction of old records” provision, which requires video

tape service providers to destroy PII “as soon as practicable,

but no later than one year from the date the information is

no longer necessary for the purpose for which it was collect

‐

ed and there are no pending requests or orders for access to

such information.” 18 U.S.C. § 2710(e). After Sterk’s case was

consolidated with a similar suit, Redbox moved to dismiss

Sterk’s complaint, arguing that the VPPA does not provide a

private right of action for mere “information retention.”

Sterk then filed an amended complaint, which Chung joined,

adding the unlawful disclosure claim at issue here. Redbox

again moved to dismiss. The district court denied the motion

but certified for interlocutory appeal the issue of whether the

VPPA’s private right of action extended to improper reten

‐

tion claims. We took up the issue and reversed the district

court, holding that the VPPA does not provide a damages

remedy for a retention claim, and so plaintiffs could only

seek injunctive relief from Redbox for its alleged failure to

timely destroy their information. See Sterk v. Redbox Automat

‐

ed Retail, LLC

, 672 F.3d 535, 538–39 (7th Cir. 2012).

While the interlocutory appeal on the retention issue was

pending, discovery regarding the disclosure claims proceed

‐

ed. Fact discovery commenced on December 21, 2011, and

originally was set to close on April 6, 2012. Over Redbox’s

opposition, plaintiffs moved to extend discovery by a month,

and the district court obliged. During this discovery period,

we issued our opinion on the retention issue, and the district

court granted plaintiffs leave to file another amended com

‐ plaint. After denying in part and granting in part Redbox’s

renewed motion to dismiss the retention claims, the district

court reopened discovery as to both the disclosure and re

‐No. 13

‐ 3037 5

tention claims for an additional period of time. During dis

‐

covery, Redbox produced over a thousand pages of docu

‐

ments in response to forty

‐ eight document requests; re

‐ sponded to forty

‐ two interrogatories; and produced wit

‐

nesses for three depositions, including two Rule 30(b)(6)

witnesses. In the end, Redbox produced information con

‐ cerning every vendor to which Redbox discloses customer

information—including the precise information shared to

each—and plaintiffs successfully obtained third

‐ party dis

‐

covery from Stream. Against that backdrop, Redbox moved

for summary judgment.

Plaintiffs objected to Redbox’s summary judgment mo

‐

tion as premature, arguing (pursuant to Federal Rule of Civil

Procedure 56(d)) that they needed more discovery in order

to adequately respond to Redbox’s arguments. Despite their

contention, plaintiffs pointed to just two issues concerning

which they desired more discovery: (1) information regard

‐ ing the “technical” method by which “Stream queries

Redbox’s database,” and (2) information relating to whether

Stream accesses all, or just a portion, of Redbox’s customer

records. The district court denied plaintiffs’ request for addi

‐

tional discovery and granted summary judgment as to all

counts in Redbox’s favor. As to plaintiffs’ improper disclo

‐

sure claim (the only claim at issue in this appeal), the district

court concluded that Redbox’s disclosure of its customers’

PII to Stream constitutes “request processing” and thus falls

within the VPPA’s “ordinary course of business” exception.

Plaintiffs appeal the summary judgment decision, as well as

the district court’s refusal to permit additional discovery be

‐

fore ruling. Plaintiffs also complain that the district court

overlooked a footnote in their opposition brief concerning

Iron Mountain, a vendor with which Redbox stores backup6 No. 13

‐ 3037

tapes of its data. Though victorious below, Redbox takes is

‐

sue with the district court’s standing analysis.

II. Discussion

We review the issue of standing de novo. Sierra Club v.

Franklin Cnty. Power of Ill., LLC

, 546 F.3d 918, 925 (7th Cir.

2008). We also review the district court’s summary judgment

ruling de novo, construing all facts and drawing all reasona

‐

ble inferences in the light most favorable to plaintiffs (the

non

‐ moving party). Mullin v. Temco Mach., Inc.

, 732 F.3d 772,

776 (7th Cir. 2013). The district court’s denial of plaintiffs’

Rule 56(d) motion for additional discovery is reviewed for

an abuse of discretion. Davis v. G.N. Mortg. Corp.

, 396 F.3d

869, 885 (7th Cir. 2005).

A. Standing

Redbox argues that plaintiffs lack standing because they

did not suffer an injury in fact when Redbox disclosed their

PII to Stream. “[T]he irreducible constitutional minimum of

standing contains three elements.” Lujan v. Defenders of Wild

‐ life, 504 U.S. 555, 560 (1992). First, a plaintiff must have suf

‐

fered an injury in fact—that is, “an invasion of a legally pro

‐

tected interest which is (a) concrete and particularized and

(b) actual or imminent, not conjectural or hypothetical.” Id

. (internal citations and quotation marks omitted). Next, that

injury must be fairly traceable to the challenged action of the

defendant— i.e., there must be a causal connection between

the injury and the conduct. Id. Finally, it must be likely that

the injury will be redressed by a favorable decision. Id. at

561. Here, there is no doubt that plaintiffs have alleged an

“invasion of a legally protected interest,” which this suit

would remedy if successful. See Hayes v. City of Urbana, Ill.

,No. 13

‐ 3037 7

104 F.3d 102, 103 (7th Cir. 1997) (“What is necessary for

standing is a concrete injury, redressable by success in the

litigation.”). Plaintiffs have demonstrated that Redbox, in

fact, disclosed their PII to Stream and argue that such disclo

‐

sure violates the VPPA.

Redbox characterizes plaintiffs’ claim as an allegation

that Redbox committed a “mere technical violation” of the

statute, which Redbox argues is insufficient to establish

standing. But “technical” violations of the statute ( i.e., im

‐ permissible disclosures of one’s sensitive, personal infor

‐

mation) are precisely what Congress sought to illegalize by

enacting the VPPA. As we have said, Congress “may not

lower the threshold for standing below the minimum re

‐ quirements imposed by the Constitution,” but Congress

does have the power to “enact statutes creating legal rights,

the invasion of which creates standing, even though no inju

‐

ry would exist without the statute.” Kyles v. J.K. Guardian Sec.

Servs., Inc.

, 222 F.3d 289, 294 (7th Cir. 2000) (internal quota

‐

tion marks omitted). Accordingly, Redbox appears to con

‐

fuse the separate issue of whether plaintiffs have suffered

financial harm as a result of the disclosure with Article III’s

injury

‐ in

‐ fact requirement for purposes of constitutional

standing to bring suit in the first place. 1 By alleging that

Redbox disclosed their personal information in violation of

the VPPA, Sterk and Chung have met their burden of

demonstrating that they suffered an injury in fact that suc

‐

cess in this suit would redress.

1 Though to be clear, the VPPA entitles successful plaintiffs to “actual

damages but not less than liquidated damages in an amount of $2,500”

for an unlawful disclosure of their PII. 18 U.S.C. § 2710(c)(2)(A).8 No. 13

‐ 3037

B. Redbox’s Disclosures to Stream

In opposing Redbox’s motion for summary judgment,

plaintiffs focused on a 1988 Senate Judiciary Report that

purportedly speaks to the type of disclosure that Congress

intended to permit under the VPPA. The Senate Report

reads:

This subsection takes into account that video tape

service providers may use third parties in their busi

‐

ness operations. For example, debt collection is often

conducted by third parties, with disclosure of credit

histories made to third party credit bureaus. Debt col

‐

lection is subject to other Federal laws: disclosures for

that purpose continue to be governed by those laws.

This subsection also allows disclosure to permit video

tape service providers to use mailing houses, ware

‐

houses, computer services, and similar companies for

marketing to their customers. These practices are

called “order fulfillment” and “request processing.”

S. Rep. No. 100

‐ 599, at 14 (1988), reprinted in 1988

U.S.C.C.A.N 4342. Seizing on this last paragraph, plaintiffs

argued to the district court that the Senate Judiciary Com

‐

mittee intended to group disclosures incident to “order ful

‐

fillment” and “request processing” (two of the four disclo

‐

sure exceptions) together and define them as disclosures on

‐ ly to “mailing houses, warehouses, computer services, and

similar companies for marketing to their customers.” Based

on that self

‐ serving interpretation of Congress’s intent, plain

‐

tiffs contended that the VPPA permits disclosure only to

third

‐ parties engaged in (1) debt collection, (2) transfer of

ownership, and (3) marketing—effectively reducing theNo. 13

‐ 3037 9

number of statutory disclosure exceptions from four to three.

The district court was not persuaded.

Highlighting the Supreme Court’s stance that “[e]xtrinsic

materials have a role in statutory interpretation only to the

extent that they shed a reliable light on the enacting Legisla

‐

ture’s understanding of otherwise ambiguous terms,” and

the Court’s recognition that committee reports can “give un

‐ representative committee members

... both the power and

the incentive to attempt strategic manipulations of legislative

history to secure results they were unable to achieve through

the statutory text,” the district court saw no persuasive rea

‐

son to effectively rewrite a federal statute based on an am

‐ biguous committee report. Sterk v. Redbox Automated Retail,

LLC

, 2013 WL 4451223, at *4–5 (N.D. Ill. Aug. 16, 2013) (quot

‐ ing Exxon Mobil Corp. v. Allapattah Servs., Inc.

, 545 U.S. 546,

568 (2005)). In the district court’s view: “[i]t is undisputed

that the only functions Stream performs for Redbox are cus

‐

tomer support services and that Stream performs these ser

‐

vices only in response to customers’ requests for infor

‐

mation. It is difficult to imagine a more obvious illustration

of ‘request processing’ given the ordinary meaning of that

term.” Id. at *4.

On appeal, plaintiffs abandon their contention that “or

‐

der fulfillment” and “request processing” are synonymous

with marketing activities. Instead, they argue that Congress

intended to limit “request processing” to the processing of

requests for specific video materials. The VPPA defines four

terms, in the following order: (1) “consumer,” (2) “ordinary

course of business,” (3) personally identifiable information,”

and (4) “video tape service provider.” 18 U.S.C. § 2710(a). As

discussed, “ordinary course of business” means “debt collec

‐10 No. 13

‐ 3037

tion activities, order fulfillment, request processing, and the

transfer of ownership.” Id

. § 2710(a)(2). “Personally identifi

‐

able information,” the next defined term, “includes infor

‐

mation which identifies a person as having requested or ob

‐

tained specific video materials or services from a video tape

service provider.” Id

. § 2710(a)(3) (emphasis added). Plain

‐

tiffs urge us to read the former definition as modifying the

latter and conclude that “request processing” refers only to

requests for “specific video materials.” As plaintiffs see it, a

customer makes a request for specific video materials when

he selects a particular movie to rent while standing at a

Redbox kiosk. By plaintiffs’ logic, therefore, Redbox kiosks

process all customer “requests” (as they narrowly construct

that term), and so any inquiries made by a consumer who

calls Redbox’s customer service line (operated by Stream)

necessarily occur outside of the ordinary course of Redbox’s

business.

There are several problems with plaintiffs’ reasoning.

First, we are unconvinced that just because PII includes in

‐

formation that identifies a person as having “requested” ma

‐

terials, the phrase “request processing”—which appears ear

‐

lier in the statute—is necessarily limited to that type of re

‐

quest. But even assuming that the phrase is constrained in

that way, plaintiffs mischaracterize the VPPA’s definition of

“personally identifiable information,” overlooking a critical

piece of the statutory language. Again, PII is defined as in

‐

clusive of “information which identifies a person as having

requested or obtained specific video materials or services

from a video tape service provider.” 18 U.S.C. § 2710(a)(3)

(emphasis added). Only by ignoring the words “or services”

are plaintiffs able to craft a reading of the statute that ex

‐

cludes customer service requests from “request processing”No. 13

‐ 3037 11

with at least some degree of plausibility. Restoration of “or

services” to the definition of PII, however, forecloses plain

‐

tiffs’ strained reading altogether, since it is difficult to fathom

“a request for service” in the video rental context that does

not implicate the customer service that Stream provides for

Redbox.

Moreover, common sense counsels against plaintiffs’

statutory construction. Plaintiffs argue that “request pro

‐ cessing” refers only to a Redbox kiosk’s computerized re

‐

sponse when a consumer selects a movie using the kiosk’s

touchscreen, while “order fulfillment” describes the kiosk’s

dispensing of the selected movie after processing the cus

‐

tomer’s request. But Congress enacted the VPPA in 1988, be

‐

fore the advent of automated kiosks (or internet

‐ based rental

companies or streaming services). Thus, when the law was

passed, Congress assuredly had a brick

‐ and

‐ mortar video

rental store in mind. The “ordinary course” of that rental

store’s business would have included typical interactions be

‐

tween a customer and the store clerk, who in many cases

would have accessed an individual customer’s rental history,

address, and other personal information during the check

‐

out process. And if that customer experienced technical

problems with his rented VHS upon his return home from

the store, he would have called the store to complain or seek

a refund. He also would have called to complain if the store

overcharged his credit card. All of these interactions, occur

‐ ring within the store’s ordinary course of business, constitute

that customer’s “request processing” and “order fulfill

‐

ment,” if ordinary meaning is assigned to those terms. Ac

‐ cordingly, plaintiffs’ attempt to carve out customer service

from a video rental company’s “ordinary course of business”

is unpersuasive. Congress, of course, did not draft the VPPA12 No. 13

‐ 3037

only with automated video rental kiosks in mind, and so it

defies logic to construe the statute’s terms as if it had. Be

‐

sides, though a typical visit to a Redbox kiosk may not ne

‐

cessitate an interaction between a customer and a live service

representative, some do—which is precisely why Redbox

provides its customers with the phone number for its call

center. And when the VPPA was enacted, we can safely as

‐

sume that Congress contemplated customer service as part

and parcel of the ordinary rental experience. That Redbox

has replaced most live customer service interactions with a

computer interface does not change this.

Plaintiffs argue that even if responding to customer ser

‐

vice requests is incident to Redbox’s ordinary course of busi

‐

ness, Redbox violates the VPPA by preemptively disclosing

its entire customer database to Stream, rather than waiting

until Stream receives a call from a Redbox user and disclos

‐ ing to Stream just the PII for that customer. In other words,

plaintiffs draw a distinction between disclosure of customer

PII that is proactive (in anticipation of customer requests)

and disclosure that is reactive (in response to an individual

customer’s call). We find that distinction meaningless, be

‐

cause the permissibility of disclosure under the VPPA turns

on the underlying purpose for which Redbox provides the

information to a third party. And whether proactive or reac

‐

tive, Redbox’s purpose for disclosing the information to

Stream is the same.

Our decision in Gracyk v. West Publ’g Co.

, 660 F.3d 275

(7th Cir. 2011), underscores our conclusion. Gracyk involved

a similar challenge under the Driver’s Privacy Protection Act

(“DPPA”). There, the plaintiffs alleged that defendant West

Publishing acquired their personal information from motorNo. 13

‐ 3037 13

vehicle records for resale in violation of the DPPA. Id

. at 276–

77. The DPPA prohibits state DMVs from disclosing personal

information about individuals that the DMV obtained in

connection with a motor vehicle record, and it prohibits pri

‐

vate individuals from knowingly obtaining or disclosing

such information. Id. at 277. But like the VPPA, the DPPA in

‐

cludes several disclosure exceptions. Id. The Gracyk plaintiffs

alleged that West Publishing obtained personal information

from state DMVs, stored it in a database, and then sold the

information to others. Id. at 279. The plaintiffs, however, did

not challenge the lawfulness of West Publishing’s disclo

‐

sures; instead, the plaintiffs argued that the act of storing the

information in a database (prior to a lawful disclosure) was

illegal under the DPPA. Id. We disagreed, noting that

“[t]here is no meaningful difference in terms of West Pub

‐ lishing’s purpose between the practice the plaintiffs ap

‐ prove—obtaining the records each time West Publishing re

‐

ceives a valid request—and the practice they object to—

compiling the records first and then disclosing them in re

‐

sponse to a valid request. In both cases, West Publishing’s

‘purpose’ for obtaining the records” is the same. Id. at 279–

80.

That reasoning applies with equal force here. If it is per

‐

missible to disclose PII to Stream in order to respond to a

customer’s call, there is nothing objectionable about

Redbox’s wholesale disclosure of information pertaining to

all customers, for use in the event of such a call. Likewise,

plaintiffs take issue with Stream’s use of customer PII during

training exercises in advance of such calls, but—again—the

purpose underlying Redbox’s disclosure of the PII is proper.

Disclosure of customer information for training purposes

may not be incident to a specific customer service request,14 No. 13

‐ 3037

but it is, of course, incident to the request processing func

‐

tion that Stream serves.

C. Redbox’s Disclosures to Iron Mountain

Plaintiffs also complain on appeal that the district court’s

summary judgment ruling ignored Redbox’s disclosure of

customer PII to Iron Mountain, the vendor with which

Redbox apparently stores backup tapes containing company

records. In their brief in opposition to Redbox’s motion for

summary judgment, plaintiffs included a single reference to

Iron Mountain, complaining in a footnote that Redbox’s

summary judgment motion “inexplicably ignore[d]” the fact

that Redbox stores backup tapes containing company data

with the storage vendor (a fact revealed by a Rule 30(b)(6)

deponent during the course of discovery). Pl. Opp. to MSJ p.

4 n.1 [194]. In conclusory fashion, plaintiffs represented in

their opposition brief that Redbox does not store these back

‐

up tapes in the ordinary course of business, but, nonetheless,

announced that their brief would focus solely on Redbox’s

disclosures to Stream. Plaintiffs, therefore, did not sufficient

‐ ly raise this issue at summary judgment and, thus, failed to

preserve it for appeal. See Puffer v. Allstate Ins. Co.

, 675 F.3d

709, 718 (7th Cir. 2012) (“[A]rguments that have been raised

may still be waived on appeal if they are underdeveloped,

conclusory, or unsupported by law.”); APS Sports Collectibles,

Inc. v. Sports Time, Inc.

, 299 F.3d 624, 631 (7th Cir. 2002) (“It is

not this court ʹ s responsibility to research and construct the

parties ʹ arguments, and conclusory analysis will be con

‐

strued as waiver.”) (internal citation and quotation marks

omitted); United States v. Dunkel

, 927 F.2d 955, 956 (7th Cir.

1991) (“A skeletal ‘argument,’ really nothing more than an

assertion, does not preserve a claim.”).No. 13

‐ 3037 15

Moreover, plaintiffs seem to misunderstand the burden

of proof at summary judgment. We have been clear that

“Federal Rule of Civil Procedure 56 imposes an initial bur

‐

den of production on the party moving for summary judg

‐

ment to inform the district court why a trial is not neces

‐ sary.” Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). That

burden “may be discharged by showing

... that there is an

absence of evidence to support the nonmoving party ʹ s case.”

Id. (internal quotation marks omitted). Upon such a show

‐ ing, the non

‐ movant (here, plaintiffs) then must “make a

showing sufficient to establish the existence of an element

essential to that party ʹ s case.” Id. Put another way, the non

‐

movant must “go beyond the pleadings ( e.g., produce affi

‐

davits, depositions, answers to interrogatories, or admis

‐

sions on file) to demonstrate that there is evidence ‘upon

which a jury could properly proceed to find a verdict’ in

[their] favor.” Id. at 1169 (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251 (1986)). Plaintiffs not only failed to

make this showing at summary judgment, they expressly

renounced their opportunity to do so.

In their reply brief on appeal, plaintiffs argue that

“Redbox had the burden of establishing that the undisputed

facts showed that it did not disclose Plaintiffs’ personally

identifiable [sic] to anyone in violation of the VPPA.” Reply

Br. 19. Yet summary judgment is proper against “a party

who fails to make a showing sufficient to establish the exist

‐

ence of an element essential to that party’s case and on which

that party will bear the burden of proof at trial.” Celotex, 477

U.S. at 322. Thus, it was plaintiffs’ burden at summary

judgment to point to evidence that—taken as true and draw

‐16 No. 13

‐ 3037

ing all reasonable inferences in their favor—established a vi

‐

olation of the VPPA, not Redbox’s burden to disprove one.

Based on evidence in the record—which reveals simply

that Redbox stores backup data with Iron Mountain—a fact

‐

finder would have no idea what information Redbox dis

‐

closed to Iron Mountain, let alone why or when Redbox dis

‐

closed it. Therefore, even if plaintiffs had properly raised the

issue to the district court at summary judgment, no reasona

‐

ble factfinder could conclude (on such minimal evidence)

that Redbox disclosed customer PII to Iron Mountain in vio

‐

lation of the VPPA.

D. Plaintiffs’ Motion for Additional Discovery

For similar reasons, the district court did not abuse its

discretion by denying plaintiffs’ motion for more discovery

pursuant to Federal Rule of Civil Procedure 56(d). Rule 56

permits a district court to delay consideration of a summary

judgment motion and order additional discovery before rul

‐ ing if the non

‐ movant demonstrates that “it cannot present

facts essential to justify its opposition.” Fed. R. Civ. P. 56(d).

The Rule places the burden on the non

‐ movant that believes

additional discovery is required to “state the reasons why

the party cannot adequately respond to the summary judg

‐

ment motion without further discovery.” Deere & Co. v. Ohio

Gear

, 462 F.3d 701, 706 (7th Cir. 2006).

Plaintiffs identified two discrete areas of discovery that

they allegedly needed to further explore in order to respond

to Redbox’s summary judgment motion as it pertained to

Stream: (1) information regarding the “technical” method by

which Stream “queries Redbox’s database,” and (2) infor

‐

mation that would shed more light on whether Stream hadNo. 13

‐ 3037 17

accessed all, or just some, of Redbox’s customer records. Nei

‐

ther of these topics were material to the district court’s sum

‐

mary judgment ruling. How Stream accesses Redbox’s infor

‐

mation is irrelevant to whether disclosures to Stream fall

within the VPPA’s “ordinary course of business” exception,

and the district court made clear in its opinion that it would

reach the same conclusion (one which we endorse on appeal)

regardless of whether Stream had access to all customer rec

‐

ords or just some of them. Plaintiffs therefore fell far short of

meeting their burden to identify material facts needed to

oppose summary judgment. Accordingly, the district court

did not abuse its discretion in denying plaintiffs additional

discovery before ruling on Redbox’s motion. 2

2 Plaintiffs contend that the district court’s denial of their Rule 56(d) mo

‐

tion sets a “dangerous precedent,” arguing that Redbox unfairly moved

for summary judgment at the close of class discovery, before merits dis

‐

covery had begun. But Redbox explains that the “merits” portion of dis

‐

covery was limited to information concerning unnamed putative mem

‐

bers. “Class” discovery was designed to determine whether Redbox dis

‐

closed prohibited information about named plaintiffs Sterk and Chung,

and, if so, whether the class requirements of Rule 23 were met. As

Redbox points out, over the lengthy discovery period prior to the filing

of its summary judgment motion, it provided plaintiffs with all relevant

information concerning the named plaintiffs and in

‐ depth descriptions

(pursuant to interrogatories and Rule 30(b)(6) depositions) of the various

vendors with which Redbox shares customer data. The only discovery it

refused plaintiffs during “class” discovery concerned the identities and

rental histories of yet

‐ to

‐ be

‐ named class members. Summary judgment

turned on the legal significance of Stream’s role as Redbox’s customer

service vendor. All material information pertaining to that question had

been sought and received by plaintiffs prior to summary judgment.18 No. 13

‐ 3037

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of

the district court.