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OPPOSITION/RESPONSE (re 157 Administrative Motion to File Under Seal… — Brooks v. Thomson Reuters Corporation (Dkt. 166)

No. 3:21-cv-01418-EMC · Doc. 166 · Docket on CourtListener

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Case 3:21-cv-01418-EMC Document 166 Filed 03/06/23 Page 1 of 9

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, PLAINTIFFS’ OPPOSITION TO
19 DEFENDANT’S MOTION TO EXCLUDE
Plaintiffs, EXPERT TESTIMONY OF JOSEPH TUROW
20
v.
21
22 THOMSON REUTERS CORPORATION, Date: April 20, 2023
Time: 1:30 p.m.
23 Defendant. Place: Courtroom 5, 17th Floor
Judge: Hon. Edward M. Chen
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO EXCLUDE
EXPERT TESTIMONY OF JOSEPH TUROW
Case No.: 3:21-cv-01418-EMC-KAW
Case 3:21-cv-01418-EMC Document 166 Filed 03/06/23 Page 2 of 9

TABLE OF CONTENTS
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Page
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I. INTRODUCTION............................................................................................................................................. 1
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II. LEGAL STANDARD........................................................................................................................................ 1
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III. ARGUMENT ...................................................................................................................................................... 2
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Turow grounds his opinion in his professional experience and expressly relies on relevant,
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reliable material. ............................................................................................................................................ 2
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Turow is not offering a legal opinion on individual consumer preferences. ........................................ 3
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Turow never offers an impermissible legal opinion on any issue. ......................................................... 5
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IV. CONCLUSION................................................................................................................................................... 5
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO EXCLUDE
EXPERT TESTIMONY OF JOSEPH TUROW
Case No.: 3:21-cv-01418-EMC-KAW
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1 TABLE OF AUTHORITIES
2 Cases Page(s)
3
Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc.,
4 738 F.3d 960 (9th Cir. 2013) ..................................................................................................................................... 5

5 Brown v. Google, LLC,
2022 WL 17961497 (N.D. Cal. Dec. 12, 2022) ......................................................................................... 1, 2, 3, 5
6
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
7
509 U.S. 579 (1993) .................................................................................................................................................... 1
8
Kumho Tire Co., Ltd. v. Carmichael,
9 526 U.S. 137 (1999) .................................................................................................................................................... 3
10 Olean Wholesale Grocery Coop. v. Bumble Bee Foods LLC,
11 31 F.4th 651 (9th Cir. 2022) (en banc...................................................................................................................... 2

12 Torliatt v. Ocwen Loan Servicing, LLC,
570 F. Supp. 3d 781 (N.D. Cal. 2021) ..................................................................................................................... 5
13
Utne v. Home Depot U.S.A., Inc.,
14 2022 WL 16857061 (N.D. Cal. Nov. 10, 2022)...................................................................................................... 4
15
Rules
16
Federal Rules of Evidence 702 .................................................................................................................................... 1
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO EXCLUDE
EXPERT TESTIMONY OF JOSEPH TUROW
Case No.: 3:21-cv-01418-EMC-KAW
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1 I. INTRODUCTION
2 Plaintiffs’ expert Professor Joseph Turow opines in his expert report that “CLEAR deprives all
3 Californians of the right to control their personal data, an economically valuable commodity and a well-
4 defined feature of individual privacy.” ECF No. 124-7 at 17 (Turow Rep.). Although each person may have
5 different amounts or types of information in their CLEAR report, Turow notes that “every Californian whose
6 information is accessible through CLEAR has suffered the same fundamental privacy harm of a lack of
7 control . . . [and] no Californian has control over the information in or use of dossiers about them.” Id. at 13.
8 Turow’s conclusion supports Plaintiffs’ argument that TR harms all class members in the same way: by
9 depriving them of their right to control who has access to their information. Because the harm to consumers
10 that Turow identifies is common to the class, Turow’s opinion is relevant to the Court’s class certification
11 analysis.
12 TR asks the Court to exclude Turow’s testimony entirely. But TR does not challenge Turow’s
13 qualifications or experience, nor does it argue that Turow’s methodology and techniques are irregular for his
14 field. TR does not claim that Turow’s opinions are irrelevant to resolving class certification, or even to the
15 merits of this litigation. Instead, TR challenges Turow because it does not like his conclusion that violating
16 Californians’ right to control the use of their personal information can be considered a “harm.” Its objection
17 to Turow’s testimony has nothing to do with the gatekeeping function of Daubert. Because TR disagrees with
18 the substance of Turow’s opinions, rather than the reliability of his testimony or his qualifications to opine
19 on the matters in this case, its challenge goes not to admissibility but to weight. The Court should therefore
20 deny the motion.
21 II. LEGAL STANDARD
22 Federal Rules of Evidence 702 and 703, as interpreted by Daubert v. Merrell Dow Pharmaceuticals, Inc.,
23 509 U.S. 579 (1993), permit expert opinion evidence so long as that expert is qualified, and based upon that
24 qualification, the expert’s opinion is relevant, reliable, and based on the types of facts or data reasonably
25 relied upon in that field. “The expert may be qualified by ‘knowledge, skill, experience, training, or education’
26 as to the subject matter of the opinion.” Brown v. Google, LLC, 2022 WL 17961497, at *1 (N.D. Cal. Dec. 12,
27 2022) (quoting Fed. R. Evid. 702). The proponent of expert opinion evidence has the burden of proving
28

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO EXCLUDE
EXPERT TESTIMONY OF JOSEPH TUROW
Case No.: 3:21-cv-01418-EMC-KAW
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1 admissibility. Id. At class certification, “the relevant inquiry is a tailored Daubert analysis which scrutinizes the
2 reliability of the expert testimony in light of the criteria for class certification and the current state of the
3 evidence.” Id. at *1 (collecting cases); see also Olean Wholesale Grocery Coop. v. Bumble Bee Foods LLC, 31 F.4th
4 651, 665 (9th Cir. 2022) (en banc) (recognizing that at class certification, parties “may use any admissible
5 evidence,” including admissible expert opinions).
6 III. ARGUMENT
7 Because Turow offers reliable, relevant opinions that he arrived at in conformity with accepted
8 practices in his field of expertise, the Court should deny TR’s motion to exclude his report. Each of TR’s
9 arguments—that Turow’s opinions are mere ipse dixit, that his conclusions are unsupported, and that he
10 offers impermissible legal opinions—fails to withstand even moderate scrutiny. First, TR ignores the bulk of
11 Turow’s evidence—including seminal texts by privacy scholars, empirical consumer surveys, and California
12 legislative history, among others—and argues his opinion is mere ipse dixit. Second, TR challenges whether
13 Turow’s survey evidence supports his conclusions. Finally, TR recasts Turow’s analysis as offering a legal
14 conclusion—despite arguing the exact opposite in its opposition to Plaintiffs’ motion for class certification.
15 None of these arguments are reasons to exclude Turow’s opinions. At best, they go to the weight the
16 Court should give Turow’s testimony, not whether his opinions are admissible. But TR’s motion also
17 routinely jumps ahead to the merits of the case, asking the Court to resolve questions that are premature at
18 this juncture. As explained more fully below, the Court should deny TR’s motion.
19 Turow grounds his opinion in his professional experience and expressly relies on relevant,
reliable material.
20
21 TR does not challenge Turow’s experience or qualifications as a privacy and marketing scholar. It

22 would be difficult to do so. Turow is a tenured professor at the University of Pennsylvania who has

23 researched, written about, and taught courses on privacy and digital audience targeting for decades. See Turow

24 Rep. at 2-3. Instead, TR suggests that Turow’s explanation that the right to control one’s information is a

25 long-standing feature of American—and, particularly, Californian—privacy rights is “ipse dixit.” ECF No.

26 157-4 (Mot.) at 4. But Turow shows his work. When rendering his opinion about how CLEAR harms

27 Californians by impinging on their right to control their information, Turow cites to seminal interdisciplinary

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO EXCLUDE
EXPERT TESTIMONY OF JOSEPH TUROW
Case No.: 3:21-cv-01418-EMC-KAW
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1 privacy texts, contemporary surveys about perceptions of privacy, and California legislative history. See Turow
2 Rep. at 6-9, 17-19. Turow’s report gives the Court historical context for important Californian policies that
3 have been discussed by scholars at length, which is relevant to whether Californians share an interest in
4 controlling information about them.
5 This type of analysis falls neatly within the scope of helpful and reliable expert testimony. Courts
6 accept expert opinions that provide “background and context information about what privacy is.” Brown,
7 2022 WL 17961497, at *10 (denying Daubert challenge to a privacy expert); see also Kumho Tire Co., Ltd. v.
8 Carmichael, 526 U.S. 137, 148 (1999) (“Experts of all kinds tie observations to conclusions through the use of
9 what Judge Learned Hand called ‘general truths derived from . . . specialized experience.’” (citation omitted)).
10 TR makes no specific objection to Turow’s methodology, nor does it explain why Turow’s carefully reasoned
11 and well-sourced opinions fall below professional muster. If TR wants to counter Turow’s conclusions about
12 what types of conduct California intended to protect its citizens against, that challenges the weight the Court
13 should give his testimony and is not the proper subject of a Daubert challenge.
14 Turow is not offering a legal opinion on individual consumer preferences.
15 TR next challenges Turow for failing to explain “how consumer preference affects his legal opinion
16 at all.” Mot. at 10. But, as explained more fully below, Turow does not offer a legal opinion, see infra III.C,
17 nor does he ever suggest that privacy harms must be measured by individual consumers’ perceptions. Turow
18 does not share TR’s misguided theory of this case that consumer harm can or should be measured by
19 considering every individual class member’s “psychic injury,” thus necessitating some kind of CLEAR-
20 specific consumer survey. Compare ECF No. 151-14 at ¶¶ 49-51 (Defendant’s expert Ran Kivetz conjecturing
21 that harms must “exist in the minds of consumers and must accordingly be defined and measured based on
22 consumers’ (subjective) perceptions and preferences” (emphasis in original)), with Turow Rep. at 14-16 (Turow
23 explaining that TR harms consumers by aggregating their information without their consent or, often, even
24 knowledge that it is happening). As TR notes in its own motion, when asked about whether “every
25 Californian would object to their information being in CLEAR,” Turow responded that that is not what he
26 was asked to opine about, is not what he has written about, and would not affect his conclusion. See Ex. 1 to
27 Mura Decl. (Turow Dep.) at 151:13-152:6.
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO EXCLUDE
EXPERT TESTIMONY OF JOSEPH TUROW
Case No.: 3:21-cv-01418-EMC-KAW
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1 Instead, Turow offers opinion on public policy and the history of societal recognition of privacy
2 rights. Turow highlights how California legislators recognized that “the ability to control circulation of
3 personal information” is “[f]undamental to our privacy” and “essential to social relationships and personal
4 freedom,” and expressed their intent to prevent “business interests from collecting and stockpiling
5 unnecessary information about us.” Turow Rep. at 8, 15. Turow connects that legislative history to modern
6 privacy scholars’ views, showing increasing concern about the specific threats posed by the aggregation of
7 personal information without individuals’ consent. Id. at 18. Then, Turow applies his historical background
8 and brings in a variety of scholars’ views to analyze the CLEAR product and TR’s business practices with
9 respect to Californians. Id. at 18-20.
10 TR ignores that Turow’s opinions connect CLEAR with specific historical background and
11 interdisciplinary policy discussions. Rather than engaging with the substance of Turow’s evidence, TR
12 recycles the opinions of its expert, Ran Kivetz,1 and focuses on six consumer surveys Turow cites in his
13 report to claim there is an “analytical chasm” between Turow’s evidence and his opinions. See Mot. at 5-7.
14 But Turow does not rely on these surveys for any of his conclusions about CLEAR. The surveys to which
15 TR objects are cited as background material in just two footnotes of Turow’s report, as support for general
16 propositions that the right to control information is widely understood as a privacy right. 2 See Turow Rep. at
17 6 n.6 (citing the 2015 Pew Center survey, Turow 2015 working paper, and National Telecommunications
18 and Information Administration survey); id. at 7 n.9 (citing the ValuePenguin survey, 2019 Pew Center survey,
19 and the boyd study). If TR finds it worthwhile to question whether the results of the NTIA’s internet use
20 survey support the sentence, “The majority of Americans believe that privacy and confidentiality are very
21 important aspects of their lives,” that argument is properly made through cross-examination. Id. at 6; see Utne
22 v. Home Depot U.S.A., Inc., 2022 WL 16857061, at *3 (N.D. Cal. Nov. 10, 2022) (“Courts may not exclude
23 1
As explained in Plaintiffs’ Omnibus Motion to Exclude Defendant’s Expert Opinions on Class
Certification, Kivetz’s criticisms of Turow’s sources leave much to be desired. ECF No. 158-3 at 10-11,
24
n.6.
25
2
Specifically, the sentences Turow offers the surveys to support are: “The long history of protecting
26 privacy through the right to control one’s information is reflected in the view of privacy enunciated by
Americans today” (Turow Rep. at 6, citing Turow’s 2015 working paper, and the NTIA survey), and “[The
27
right to control access to one’s information] remains ‘[p]erhaps the most commonly accepted definition of
28 information privacy’” (id. at 7, citing ValuePenguin, 2019 Pew Survey, and the boyd study).

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO EXCLUDE
EXPERT TESTIMONY OF JOSEPH TUROW
Case No.: 3:21-cv-01418-EMC-KAW
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1 testimony simply because it is impeachable.” (citing Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d
2 960, 969-70 (9th Cir. 2013))).
3 Turow never offers an impermissible legal opinion on any issue.
4 Lastly, TR argues that Turow’s opinions should be excluded as an impermissible legal opinion. Mot.
5 at 8. But TR itself argues that Turow does not offer a legal opinion. In its opposition to Plaintiffs’ motion
6 for class certification, TR notes that Turow characterizes the right to control one’s information “as an ‘ethical
7 and social right,’ not a legal right.” ECF No. 150-4 at 6. At no time does Turow give an opinion on an
8 ultimate issue of law. Indeed, as TR admits, he “offers no opinion on balancing the harm and utility of TR’s
9 conduct.” Id. at 7.
10 Although TR was adamant in its opposition to class certification that Turow’s opinions do not give
11 any legal opinion, it now argues the opposite in its motion to exclude Turow’s testimony. Mot. at 7-8. TR
12 was correct the first time. In Brown, for example, the court, at the class certification stage, admitted an expert
13 to testify about the historical and policy background of data privacy, recognizing that such background would
14 be helpful. See 2022 WL 17961497, at *10. Here too, Turow’s discussion of social norms and the historical
15 development of privacy in California are beyond common knowledge and thus helpful at this stage. And the
16 fact remains that nowhere does Turow assert that TR has violated any law—unlike TR’s own privacy expert,
17 Jane Bambauer, who opines that CLEAR’s benefits to society outweigh its harms to individuals. See Torliatt
18 v. Ocwen Loan Servicing, LLC, 570 F. Supp. 3d 781, 791 (N.D. Cal. 2021) (distinguishing between expert
19 testimony that might “support a finding that the defendants violated the law,” and testimony “that they in
20 fact did so”); see, e.g., ECF No. 151-1 at 23 (“The effects on individual data subjects will be mixed . . . [b]ut .
21 . . there will be more ‘winners’ than ‘losers,’ and society will be well-served.”); see also id. at 10-11 (Bambauer
22 asserting that privacy harms must be weighed against the practice’s utility). TR’s about-face is nothing more
23 than a half-hearted attempt to keep testimony it does not like out of this case—but that is not a reason to
24 exclude Turow’s report. In sum, TR has failed to give any reason under Daubert or Rule 702 why Turow’s
25 testimony is inadmissible.
26 IV. CONCLUSION
27 Turow is qualified to opine on the types of harm that consumers face from data aggregation platforms
28

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO EXCLUDE
EXPERT TESTIMONY OF JOSEPH TUROW
Case No.: 3:21-cv-01418-EMC-KAW
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Case 3:21-cv-01418-EMC Document 166 Filed 03/06/23 Page 9 of 9

1 like CLEAR and offers relevant and reliable testimony about those harms in his report. The Court should
2 therefore deny TR’s motion to exclude his testimony.
3
4 DATED: March 6, 2023 Respectfully submitted,
5 /s/ Andre M. Mura
6 Andre M. Mura

7 Eric H. Gibbs (SBN 178658)
Andre M. Mura (SBN 298541)
8 Amy M. Zeman (SBN 273100)
9 Mark H. Troutman (pro hac vice)
Ezekiel S. Wald (SBN 341490)
10 Hanne Jensen (SBN 336045)
GIBBS LAW GROUP LLP
11 1111 Broadway, Suite 2100
12 Oakland, California 94607
Telephone: (510) 350-9700
13 Facsimile: (510) 350-9701
ehg@classlawgroup.com
14 amm@classlawgroup.com
15 amz@classlawgroup.com
mht@classlawgroup.com
16 zsw@classlawgroup.com
hj@classlawgroup.com
17
Geoffrey A. Graber (SBN 211547)
18
Karina G. Puttieva (SBN 317702)
19 COHEN MILSTEIN SELLERS & TOLL
PLLC
20 1100 New York Ave. NW, Fifth Floor
Washington, DC 20005
21
Telephone: (202) 408-4600
22 Facsimile: (202) 408-4699
ggraber@cohenmilstein.com
23 kputtieva@cohenmilstein.com
24 Attorneys for Plaintiffs and the Proposed Class
25
26
27
28

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO EXCLUDE
EXPERT TESTIMONY OF JOSEPH TUROW
Case No.: 3:21-cv-01418-EMC-KAW
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