Court filing
ADMINISTRATIVE MOTION FOR LEAVE TO RESPOND TO OBJECTION filed by Cat… — Brooks v. Thomson Reuters Corporation (Dkt. 182)
No. 3:21-cv-01418-EMC · Doc. 182 · Docket on CourtListener
Full text
Case 3:21-cv-01418-EMC Document 182 Filed 03/24/23 Page 1 of 5
1 Eric H. Gibbs (SBN 178658) Geoffrey A. Graber (SBN 211547)
Andre M. Mura (SBN 298541) Karina G. Puttieva (SBN 317702)
2 Amy M. Zeman (SBN 273100) COHEN MILSTEIN SELLERS & TOLL
3 Mark H. Troutman (pro hac vice) PLLC
Ezekiel S. Wald (SBN 341490) 1100 New York Ave. NW, Fifth Floor
4 Hanne Jensen (SBN 336045) Washington, DC 20005
GIBBS LAW GROUP LLP Telephone: (202) 408-4600
5 1111 Broadway, Suite 2100 Facsimile: (202) 408-4699
6 Oakland, CA 94607 ggraber@cohenmilstein.com
Telephone: (510) 350-9700 kputtieva@cohenmilstein.com
7 Facsimile: (510) 350-9701
ehg@classlawgroup.com
8 amm@classlawgroup.com
amz@classlawgroup.com
9
mht@classlawgroup.com
10 zsw@classlawgroup.com
hj@classlawgroup.com
11
12 Attorneys for Plaintiffs and the Proposed Class
13
14
UNITED STATES DISTRICT COURT FOR THE
15 NORTHERN DISTRICT OF CALIFORNIA
16 SAN FRANCISCO DIVISION
17 CAT BROOKS and RASHEED SHABAZZ, Case No. 3:21-cv-01418-EMC-KAW
individually and on behalf of all others
18 similarly situated,
19 PLAINTIFFS’ ADMINISTRATIVE MOTION
Plaintiffs, FOR LEAVE TO RESPOND TO OBJECTION
20 (ECF NO. 174-2)
v.
21
22 THOMSON REUTERS CORPORATION,
23 Defendant.
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PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO RESPOND TO OBJECTION
(ECF NO. 174-2)
Case No.: 3:21-cv-01418-EMC-KAW
Case 3:21-cv-01418-EMC Document 182 Filed 03/24/23 Page 2 of 5
1 Pursuant to Civil L.R. 7-3(d) and 7-11, Plaintiffs seek court approval to file a response to Thomson
2 Reuters’ (TR) Objection to Reply Evidence, ECF No. 174-2. TR’s objection is improper under Civil L.R. 7-
3 3(d)(1), which prohibits an objection to reply evidence from “includ[ing] further argument on the motion.”
4 In addition, TR’s objection is meritless. Plaintiffs seek leave to file the following response:
5 TR styles its submission as an “objection” to a single sentence in Plaintiffs’ reply which merely
6 brought to the Court’s attention recent deposition testimony of its employee, but in reality it has “effectively
7 used [that] evidentiary objection as an unauthorized sur-reply.” Yung Kim v. Volkswagen Grp. of Am., Inc., 2013
8 WL 1283399, at *4 (N.D. Cal. Mar. 26, 2013). TR’s sur-reply includes pages of additional argument
9 untethered to the evidence to which it objects; indeed, it addresses evidence that was presented only in
10 Plaintiffs’ motion for class certification, not their reply, and it addresses whether Rule 23 is met. See, e.g., ECF
11 No. 174-2 at 1:2-5 (arguing about disputed evidence never mentioned in Plaintiffs’ reply), 1:26-28 (arguing
12 predominance), 2:4-6 (arguing about Plaintiffs’ characterization of CLEAR), 2:19-23 (arguing about the
13 analysis required under the UCL balancing test), 3:25-28 (arguing about Plaintiffs’ motivations for including
14 evidence in their reply), 4:4-10 (quoting other portions of Plaintiffs’ exhibit—all of which were provided to
15 the Court—to argue TR’s preferred interpretation of the testimony), 4:10-14 (relying on a newly-submitted
16 employee declaration to argue TR’s preferred interpretation of the testimony objected to here). TR’s
17 improper additional argument violates the plain language of Local Rule 7-3(d) and thus the Court should
18 overrule its objection. See Yung Kim, 2013 WL 1283399, at *4 (overruling objection for improper sur-reply
19 argument); Armstrong v. Brown, 2012 WL 1225911, at *1 n.1 (N.D. Cal. Apr. 11, 2012) (striking objection for
20 same reason); Umeda v. Tesla Inc., 2020 WL 5653496, at *4 (N.D. Cal. Sept. 23, 2020) (disregarding new
21 argument in objection and permitting supplemental evidence that “provides facts in response to arguments
22 set forth in [the] opposition”), aff’d, 2022 WL 18980 (9th Cir. Jan. 3, 2022).
23 The thrust of TR’s challenge to Plaintiffs’ submission is that Plaintiffs’ statement based on that
24 testimony is “false.” ECF No. 174-2 at 1:5-6, 1:16-21, 4:4-14; ECF No. 173-2 ¶ 2 (additionally incorporating
25 argument from TR’s newly submitted employee declaration in support of sealing portions of Plaintiffs’ reply).
26 But Plaintiffs’ statement simply and accurately repeated the testimony of TR’s employee—and the evidence
27 Plaintiffs submitted speaks for itself. ECF No. 169-4; ECF No. 124-11 at 629; ECF No. 124-14. TR may
28 believe that its employee incorrectly testified, but even if he did, that is not a basis to find that this testimony
PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO RESPOND TO OBJECTION
(ECF NO. 174-2)
Case No.: 3:18-cv-01418-EMC-KAW
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Case 3:21-cv-01418-EMC Document 182 Filed 03/24/23 Page 3 of 5
1 is inadmissible nor to find that it was improperly submitted here. Damiani v. Detective Duffy, 2017 WL 635644,
2 at *4 (D. Del. Feb. 16, 2017) (“[I]f a party disagrees with deposition testimony given by witnesses, he is free
3 to challenge that testimony through his own factual assertions, impeach it through other evidence, and cross-
4 examine the witnesses vigorously at trial.”) (internal alteration and citation omitted).
5 TR also argues (at 2 n.5) that it was procedurally improper to cite recent testimony in reply because
6 Plaintiffs could have cited other documents that TR had produced to make a similar point in their motion.
7 But there is no procedural impropriety here. First, while TR claims through a declaration of counsel that this
8 evidence existed before (at 2 n.5), that is not accurate. The actual evidence Plaintiffs submitted—as TR readily
9 admits—came from a deposition conducted approximately two weeks before Plaintiffs filed their reply brief.
10 ECF No. 174-3 ¶ 3. But more importantly, when TR raises arguments in opposition, Plaintiffs are entitled
11 to reply. See Edgen Murray Corp. v. Vortex Marine Constr., Inc., 2018 WL 4203801, at *3 n.1. Here, Plaintiffs
12 argued in their motion that CLEAR is continuously looking to expand its data coverage to sweep as broadly
13 as possible. See ECF No. 124-3 at 3-4. TR responded that CLEAR content “comes from public records,
14 reputable third-party licensors, and the internet” and “includes nothing that qualified subscribers could not
15 get individually on their own.” ECF No. 150-4 at 1-2. Plaintiffs then cited recent deposition testimony in
16 reply to rebut TR’s suggestion that the company’s focus has only been public data. Accordingly, there was
17 nothing procedurally improper about the sequence in which Plaintiffs presented this deposition testimony,
18 which was obtained just before Plaintiffs’ reply, and “was filed to respond to [Defendant’s] opposition and
19 [wa]s consistent with . . . arguments presented in the original motion.” Edgen, 2018 WL 4203801, at *3 n.1
20 (overruling objection).
21 Next, TR argues that this evidence is irrelevant to this litigation. ECF No. 174-2 at 3 (citing Fed. R.
22 Evid. 401). But TR itself argues—repeatedly—that the Court will need to consider, at the merits stage, the
23 types of information that CLEAR makes available for its customers. ECF No. 150-4 at 1, 2, 13, 15, 17, 20.
24 And, as Plaintiffs have explained, TR’s practice of continually seeking out evermore information from all
25 corners of individuals’ lives, with decisions on what data to add to CLEAR rising and falling on TR’s business
26 prerogative, is relevant to the harms CLEAR causes Californians and informs the scope of injunctive relief.
27 See, e.g., ECF No. 124-3 at 3-4; see also Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1006 (9th Cir. 2018) (“Instead,
28 an inquiry into the evidence’s ultimate admissibility should go to the weight that evidence is given at the class
PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO RESPOND TO OBJECTION
(ECF NO. 174-2)
Case No.: 3:18-cv-01418-EMC-KAW
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Case 3:21-cv-01418-EMC Document 182 Filed 03/24/23 Page 4 of 5
1 certification stage.”). So TR’s gesturing towards Fed. R. Evid. 403 also misses the mark—this evidence goes
2 directly to issues at the heart of this case—TR’s ability to sweep up any and all data about Californians for
3 its own commercial benefit, without those Californians’ knowledge or consent—and the scope of injunctive
4 relief. See ECF No. 174-2 at 3 (citing Fed. R. Evid. 403).
5 All that said, TR’s arguments regarding the types of data available through CLEAR are premature
6 and go to the merits, not class certification; indeed, that was the very point Plaintiffs made in their reply brief
7 when citing this deposition testimony. See ECF No. 169-3 at 1. Evidence tending to show the particular
8 contours of injunctive relief is best determined at the merits stage. See Sali, 909 F.3d at 1006. Because
9 admissibility is properly determined at the merits, the Court may rule on class certification here without
10 reaching TR’s premature arguments, and overrule its objection on those grounds as well. See Powertech Tech.
11 Inc. v. Tessera, Inc., 2013 WL 1164966, at *2 (N.D. Cal. Mar. 20, 2013) (overruling objection “[b]ecause the
12 Court reaches the same result notwithstanding the reply evidence”).
13 Finally, TR cursorily claims prejudice if it is not afforded a sur-reply to substantively respond to its
14 employee’s statements. ECF No. 174-2 at 4. But TR will have ample opportunity to address this evidence—
15 and any other merits issues—at the merits stage. Even setting that aside, this request strains credulity—TR
16 already directly and substantively responded to this deposition testimony with a declaration from TR’s
17 employee Kevin Appold that it attached to a sealing motion, even before filing its objection here. ECF No.
18 173-2 ¶ 2. TR cannot claim prejudice from the lack of an opportunity to respond when it has already afforded
19 itself that opportunity without leave of Court.
20 For these reasons, Plaintiffs respectfully submit that the Court should overrule TR’s objection to
21 reply evidence.
22
23 DATED: March 24, 2023 Respectfully submitted,
24 /s/ Andre M. Mura
25 Andre M. Mura
26 Eric H. Gibbs (SBN 178658)
Andre M. Mura (SBN 298541)
27 Amy M. Zeman (SBN 273100)
Mark H. Troutman (pro hac vice)
28
PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO RESPOND TO OBJECTION
(ECF NO. 174-2)
Case No.: 3:18-cv-01418-EMC-KAW
3
Case 3:21-cv-01418-EMC Document 182 Filed 03/24/23 Page 5 of 5
Ezekiel S. Wald (SBN 341490)
1 Hanne Jensen (SBN 336045)
2 GIBBS LAW GROUP LLP
1111 Broadway, Suite 2100
3 Oakland, California 94607
Telephone: (510) 350-9700
4 Facsimile: (510) 350-9701
5 ehg@classlawgroup.com
amm@classlawgroup.com
6 amz@classlawgroup.com
mht@classlawgroup.com
7 zsw@classlawgroup.com
8 hj@classlawgroup.com
9 Geoffrey A. Graber (SBN 211547)
Karina G. Puttieva (SBN 317702)
10 COHEN MILSTEIN SELLERS & TOLL
11 PLLC
1100 New York Ave. NW, Fifth Floor
12 Washington, DC 20005
Telephone: (202) 408-4600
13 Facsimile: (202) 408-4699
ggraber@cohenmilstein.com
14
kputtieva@cohenmilstein.com
15
Attorneys for Plaintiffs and the Proposed Class
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PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO RESPOND TO OBJECTION
(ECF NO. 174-2)
Case No.: 3:18-cv-01418-EMC-KAW
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