Court filing
REPLY (re 159 MOTION TO EXCLUDE DEFENDANTS EXPERT OPINIONS ON CLASS… — Brooks v. Thomson Reuters Corporation (Dkt. 176)
No. 3:21-cv-01418-EMC · Doc. 176 · Docket on CourtListener
Full text
Case 3:21-cv-01418-EMC Document 176 Filed 03/20/23 Page 1 of 12
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’ REPLY IN SUPPORT OF
19 OMNIBUS MOTION TO EXCLUDE
Plaintiffs, DEFENDANT’S EXPERT OPINIONS ON
20 CLASS CERTIFICATION
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’ REPLY IN SUPPORT OF OMNIBUS MOTION TO EXCLUDE
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1 TABLE OF CONTENTS
Page
2
I. INTRODUCTION .......................................................................................................................... 1
3
II. ARGUMENT................................................................................................................................... 2
4
5 The Court should exclude Kivetz’s report because it is irrelevant and
unsubstantiated. ......................................................................................................2
6
1. Kivetz is not qualified to opine on the relationship between consumer
7 preferences and California privacy harms. ...........................................................2
8 2. Kivetz’s methodology is not a ‘fit’ for this case. ...................................................3
9 3. Kivetz unquestioningly assumes TR’s positions and fails to substantiate his
opinions..............................................................................................................6
10
The Court should exclude Bambauer’s report because her choice to omit
11 California law renders it unreliable and irrelevant to the issues in this case. ..............6
12 1. Omitting California specific law and policy renders Bambauer’s report
unreliable. ..........................................................................................................7
13
2. Because Bambauer’s report lacks California specific analysis, her opinions are
14 irrelevant and fail to engage with Turow. ............................................................8
15
III. CONCLUSION ............................................................................................................................... 9
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1 TABLE OF AUTHORITIES
2 Cases Page(s)
3 Caldwell v. City of S.F.,
4 2021 WL 1391464 (N.D. Cal. Apr. 13, 2021) ................................................................................... 2, 6
5 Hangarter v. Provident Life and Acc. Ins. Co.,
373 F.3d 998 (9th Cir. 2004) .................................................................................................................. 7
6
7 Maldonado v. Apple, Inc.,
2021 WL 1947512 (N.D. Cal. 2021) .................................................................................................. 3, 5
8
9 Messick v. Novartis Pharms. Corp.,
747 F.3d 1193 (9th Cir. 2013) ................................................................................................................ 5
10
Rearden LLC v. Walt Disney Co.,
11 2021 WL 6882227 (N.D. Cal. Jul. 12, 2021) ..................................................................................... 3, 5
12
Red v. Kraft Foods, Inc.,
13 2011 WL 4599833 (C.D. Cal. Sept. 29, 2011) ................................................................................... 3, 5
14
Red v. Kraft Foods, Inc.,
15 2012 WL 8018618 (C.D. Cal. Apr. 26, 2012) ....................................................................................... 3
16 Red v. Kraft Foods, Inc.,
17 2012 WL 8019257 (C.D. Cal. Apr. 12, 2012) ....................................................................................... 3
18 Stephens v. Union Pac. R.R. Co.,
935 F.3d 852 (9th Cir. 2019) .................................................................................................................. 6
19
20 United States v. Valencia-Lopez,
971 F.3d 891 (9th Cir. 2020) .................................................................................................................. 7
21
Viterbo v. Dow Chem. Co.,
22
826 F.2d 420 (5th Cir. 1987) .................................................................................................................. 6
23
Rules
24
Fed. R. Evid. 702 ....................................................................................................................................... 2
25
26
27
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1 I. INTRODUCTION
2 In opposing Plaintiffs’ motion to exclude Defendant’s class certification rebuttal experts, Professors
3 Jane Bambauer and Ran Kivetz, Thomson Reuters (TR) misses the forest and the trees. Ostensibly, TR’s
4 experts serve a singular, limited purpose—to rebut Plaintiffs’ expert Professor Joseph Turow’s testimony
5 about the classwide harm Plaintiffs suffered from TR’s unfair business practices. But designating an expert
6 for purposes of “rebuttal” is no get out of jail free card: even a rebuttal expert must satisfy Daubert and the
7 Federal Rules of Evidence. And here, as Plaintiffs demonstrated in their motion, neither Kivetz nor
8 Bambauer do.
9 In response to Plaintiffs’ motion, TR offers little more than silence and misdirection. For example,
10 TR never contests that Kivetz is unqualified to opine on privacy. Instead, TR argues that Kivetz is qualified
11 to opine on the importance of individual consumer preferences. But TR then fails to respond to Plaintiffs’
12 argument that Kivetz’s methodology does not fit the facts of this case, and it does not explain why Kivetz’s
13 core conclusions are frequently predicated solely on TR’s employees’ opinions, or no evidence at all. That is
14 not enough to carry TR’s burden of showing admissibility. Because Kivetz is unqualified to opine on privacy,
15 Turow’s opinion is not premised on individual consumer preferences, and Kivetz’s conclusions are
16 unsubstantiated, TR has not demonstrated that this proffered expert testimony should be admitted.
17 TR’s defense of Bambauer is similarly misguided. Instead of responding to Plaintiffs’ arguments that
18 omitting California policy renders her opinion irrelevant and unreliable, TR argues only that Bambauer would
19 not be able to opine on California’s privacy landscape without rendering an impermissible legal opinion. But
20 at the same time that TR suggests Bambauer would not be permitted to opine on the foundational policies
21 of California privacy law, it has her opine on the “tenets of U.S. privacy law.” ECF No. 150-4 at 6 n.23
22 (emphasis added). And when discussing U.S. privacy law, Bambauer presents a good-for-litigation-only
23 opinion that Turow’s understanding of a right of control is extreme—a view divorced from the history and
24 context of privacy in California and, importantly for Daubert purposes, Bambauer’s own academic opinions.
25 The history and context of privacy in California, not the U.S. more broadly, is what matters here. On that
26 topic, Bambauer offers the Court nothing more than an unhelpful and unreliable opinion directly contrary
27 to what she has routinely and consistently presented in her professional capacity outside this case.
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1 At bottom, TR’s failure to adequately respond to Plaintiffs’ motion shows that neither of its rebuttal
2 experts offer admissible testimony to rebut Turow’s report, and neither’s testimony will assist the Court in
3 its resolution of class certification.
4 II. ARGUMENT
5 The Court should exclude Kivetz’s report because it is irrelevant and unsubstantiated.
6 In its defense of Kivetz, TR fails to respond to most of Plaintiffs’ arguments and tries instead to shift
7 focus onto Turow. But the subject of this motion is the admissibility of Kivetz’s testimony, of which it is
8 TR’s burden to establish. Fed. R. Evid. 702, Advisory Committee Notes (2000 amendments). And here, TR
9 makes no attempt to argue that Kivetz is qualified to opine on privacy harm. ECF No. 165 (Opp.) at 12.
10 Moreover, TR fails to respond to the bulk of Plaintiffs’ arguments, including that Kivetz’s methodology does
11 not fit the facts of this case, his review of Turow’s sources was inadequate, he fails to support many of his
12 opinions with any evidence, and he unquestioningly adopted TR’s positions as his own opinion. Each of
13 these is an independent reason to exclude Kivetz’s testimony.
14 1. Kivetz is not qualified to opine on the relationship between consumer preferences
15 and California privacy harms.
16 TR makes no attempt to argue Kivetz is qualified to opine on privacy, and he is not. 1 Opp. at 12; see
17 also ECF No. 159-3 at 56:24-57:3 (Kivetz claiming he does not know what privacy means). Sweeping privacy-
18 specific qualifications aside, TR counters that Kivetz is qualified to opine on the importance of individual
19 consumer preferences. Opp. at 12. But TR fails to connect how Kivetz’s experience measuring individual
20 consumer attitudes about products that businesses market to consumers “provide[s] a foundation for [him] to
21 answer a specific question” relevant to this case. See Caldwell v. City of S.F., 2021 WL 1391464, at *3 (N.D.
22 Cal. Apr. 13, 2021). TR does not market CLEAR to consumers, nor are consumers given a choice about how
23 or whether to engage with the CLEAR product. Despite that it is TR’s burden to establish Kivetz’s
24 qualifications to opine in this case, TR leaves the Court to guess how his expertise as a marketing professor
25 would translate to anticipating consumer preferences about privacy, particularly when the product at issue is
26
1
27 Nor does TR respond to Plaintiffs’ point that Kivetz’s prioritization of individuated subjective consumer
preference is incongruous with Bambauer’s metric, which does not prioritize subjective consumer preference
28 in measuring privacy harm. ECF No. 158-3 (Mot.) at 5.
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1 one with which they have never interacted.
2 TR fails to show how Kivetz’s unrelated experience qualifies him to testify as an expert in this case.
3 Although experts need not be “hyperspecialized,” expertise in one area does not necessarily extend across an
4 “expansive field.” Maldonado v. Apple, Inc., 2021 WL 1947512, at *17 (N.D. Cal. 2021) (excluding chemical
5 engineer from testifying in an electrical engineering case; collecting cases). TR offers Kivetz “to rebut the
6 opinion of Prof. Turow,” specifically by testifying that establishing “common injury” requires some form of
7 “empirical or scientific evidence.” Opp. at 2-3. But TR offers no evidence for its argument that privacy harms
8 are routinely—if ever—measured by individual subjective preference. As a result, TR effectively concedes
9 Kivetz is not qualified to discuss “the type of harm that Prof. Turow alleges to be at issue in this case”—
10 interference with individuals’ right to control their information. Id. at 3 (emphasis in original).
11 That Kivetz was not excluded in other cases is beside the point. The cases Kivetz testified in
12 previously were not cases involving privacy harm, and TR does not refute that Kivetz has never testified
13 about how to measure privacy harm. See ECF No. 158-3 (Mot.) at 4-5. Plus, TR overstates the degree to
14 which courts have relied on his testimony in prior cases. See Red v. Kraft Foods, 2011 WL 4599833, at *13 (C.D.
15 Cal. Sept. 29, 2011) (finding Kivetz’s testimony about individuated consumer preferences “arguably, only
16 marginally relevant,” because UCL plaintiffs are not required to “demonstrate individualized reliance”). 2 The
17 relevance the Red court attached to Kivetz’s opinion had to do with his marketing background in relation to
18 deceptive advertising predictions—not any qualification with measuring individual consumer preferences.
19 See id. As this is not a marketing case, and Kivetz is not qualified to opine on privacy-related harms, his prior
20 experience does not bolster the admissibility of his testimony in any way.
21 By conceding that Kivetz has no experience testifying about privacy harm—the subject of the
22 opinion he was engaged to rebut—TR gives the Court a clear reason to exclude his testimony.
23 2. Kivetz’s methodology is not a ‘fit’ for this case.
24 Relatedly, TR does not explain how Kivetz’s consumer-preferences approach is a reasonable “fit”
25 for the “facts in issue” in this case. Rearden LLC v. Walt Disney Co., 2021 WL 6882227, at *5 (N.D. Cal. Jul.
26 2
Moreover, the Red plaintiffs filed their motion to strike Kivetz’s testimony after the court considered class
27 certification. See Red v. Kraft Foods, Inc., 2012 WL 8019257, at *15 (C.D. Cal. Apr. 12, 2012) (tentative ruling
denying the motion to strike as moot but noting Kivetz’s testimony “did not significantly affect the Court’s
28 analysis), adopted by 2012 WL 8018618 (C.D. Cal. Apr. 26, 2012).
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1 12, 2021). Neither TR nor Kivetz provides any authority showing that individuated, subjective consumer
2 perceptions are the requisite—or even an appropriate—metric for assessing privacy harm here. Such a
3 position would be a non-starter because both UCL tests are evaluated with an objective standard that would
4 not depend on any individual’s subjective opinion. See ECF No. 124-3 at 25.
5 Rather than explaining how Kivetz’s methodology is relevant and reliable, TR instead argues (at 13-
6 14) that Turow claims individual consumer preferences are relevant to evaluating privacy harm in this case.
7 TR tries to set up (at 14-15) a double-bind: either Plaintiffs must accept the “relevancy” of individual
8 consumer preference to this case or admit that Turow’s opinion lacks evidentiary support. Both of these
9 points are overstated, but more to the point, they distract from the reality that TR did nothing to show that
10 Kivetz’s methodology will assist the Court in resolving any question at class certification.
11 First, TR misreads Turow’s report and overstates his deposition testimony. See Opp. at 12-13; ECF
12 No. 157-10 (Turow Dep.) at 119:3-10 (Turow clarifying that he opines on “[p]eople’s desire . . . to control
13 their information”). Turow never says that individual subjective consumer preferences dictate whether harm
14 has occurred, nor does he use survey evidence to support his analysis of privacy harm in his report. The fact
15 that Turow affirmed what everyone already knows—he did cite to consumer surveys in a footnote in his
16 report—does not transform his opinion into one that centers individual subjective consumer preferences.
17 See Turow Dep. at 120:6-21 (Turow explaining that he “discuss[es] consumer perceptions of the right to
18 control one’s information . . . at Footnote 6” and indirectly through ballot pamphlet materials, but nowhere
19 else).
20 Second, TR fixates on Turow’s survey evidence to the exclusion of all other supporting authority. Opp.
21 at 14-15. But the six surveys TR takes such great issue with are cabined to two footnotes supporting general
22 statements that the American public believes that having control over their information is one aspect of their
23 right to privacy. See ECF No. 124-7 (Turow Rep.) at 6 n.6, 7 n.9. Turow uses these consumer surveys only
24 to show that the right to control one’s own information is commonly understood as a facet of individual
25 privacy rights, speaking about general public opinion and common acceptance of the right to control. Mot.
26 at 4-5, 6-7; Turow Rep. at 6. Zooming out from those two sentences in Turow’s report, the reader can readily
27 see that Turow synthesizes the history of the right to control in American legal thought (at 6-7), its
28
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1 sociological importance (at 8), and its relationship with California policy (at 8-9). Turow describes the nature
2 and history of a right that is enshrined in California policy. Kivetz discusses none of this—indeed, the parties
3 agree those topics are beyond Kivetz’s expertise. Supra Part II.A.1.
4 Finally, TR’s focus on Turow does nothing to affirmatively establish that Kivetz’s methodology is
5 relevant and reliable. Although TR quibbles (at 2) that it is not Kivetz’s burden to offer a workable theory of
6 harm, a rebuttal expert must pass muster under Daubert and Rule 702, just as any other expert would. See, e.g.,
7 Maldonado, 2021 WL 1947512, at *16-17 (excluding rebuttal expert opinion because “[h]e is not qualified
8 under standard Daubert principles”). TR never explains how measuring individuated consumer preferences
9 would assist the Court in its class certification inquiry when the UCL tests use objective measurements. Nor
10 does TR respond to Plaintiffs’ point that Kivetz himself offers no evidence that consumer preferences would
11 differ, despite claiming that is the only metric to reasonably evaluate whether privacy harm occurred. See Mot.
12 at 7.
13 It is apparent that Kivetz does not merely intend, as TR suggests (at 7), to help the Court understand
14 two footnotes in the background section of Turow’s report—though an outsized amount of space is
15 dedicated to that purpose in both TR’s opposition and Kivetz’s report itself. 3 Instead, Kivetz’s report offers
16 the Court an alternative way to measure harm in this case. But Kivetz’s approach prioritizes the subjective
17 responses of individual consumers as a measurement of harm, rather than an objective, rights-based approach
18 that is responsive to Plaintiffs’ theory of harm. See Mot. at 6; ECF No. 151-14 (Kivetz Rep.) ¶¶ 49-55. TR
19 asks (at 15) the Court to kick the question of “chosen methodology” down the road because it is “not the
20 proper subject of a Daubert determination.” But this is wrong. Whether an expert’s methodology can help
21 the Court to answer a relevant issue is precisely within Daubert’s purview. “The ‘fit’ question is one of
22 relevance,” Rearden, 2021 WL 6882227, at *5, and “[r]elevancy depends on the particular law at issue.” Messick
23 v. Novartis Pharms. Corp., 747 F.3d 1193, 1197 (9th Cir. 2013). Kivetz’s chosen methodology—relying on
24 individuated consumer opinions about CLEAR to determine whether a privacy harm has occurred—is not
25 applicable to the Court’s objective inquiry under the UCL. Cf. Red, 2011 WL 4599833, at *13 (noting Kivetz’s
26 3
And if this were Kivetz’s sole purpose, as Plaintiffs explain in their Motion, Kivetz does a lackluster job.
27 See Mot. at 7 (pointing out that Kivetz fails to offer any evidence about consumer preferences regarding CLEAR
or even preferences about privacy generally); id. at 10 (showing that Kivetz’s review of Turow’s surveys was
28 inadequate).
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1 individuated analysis of consumer harm was not relevant where plaintiffs need not show individual reliance).
2 Because his methodology does not “fit” this case, Kivetz does not pass muster under Daubert and, moreover,
3 fails to offer the Court any insight about Turow’s report.
4 3. Kivetz unquestioningly assumes TR’s positions and fails to substantiate his
5 opinions.
6 TR gives no response whatsoever to Plaintiffs’ critique that Kivetz parrots the views of TR’s
7 employee Kevin Appold without critical engagement. See Mot. at 9-10. But Appold’s view does not transform
8 into consumers’ actual beliefs about CLEAR just because Kivetz is willing to swallow it hook, line, and sinker.
9 See Stephens v. Union Pac. R.R. Co., 935 F.3d 852, 857 (9th Cir. 2019); Caldwell, 2021 WL 1391464, at *5
10 (“[C]ourts have rejected attempts to use experts as mere ‘conduits’ for otherwise inadmissible evidence.”
11 (citation omitted)). But even without that problem, Kivetz’s failure to substantiate his opinions runs through
12 the main conclusions of his report. Although TR blusters (at 12 n.4) about the sheer number of sources
13 Kivetz cites, it has no response to Plaintiffs’ argument that Kivetz’s core conclusions are unsupported. See
14 Mot. at 8-9. Kivetz must be able to support his opinions with something other than his view that “it is so.”
15 Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir. 1987). Either of these arguments—to which TR has no
16 adequate response—is an independent reason to exclude or limit Kivetz’s testimony.
17 As shown in its opposition to class certification, TR does not only use Kivetz to rebut Turow’s survey
18 evidence. Instead, it attempts to use Kivetz’s unsubstantiated opinions to argue that harms among the class
19 are not common or that, if they are, individual considerations will predominate. See ECF No. 150-4 at 20.
20 But (1) this topic is beyond the scope of Kivetz’s expertise, (2) his methodology is a poor fit for the issues in
21 this case, and (3) his unsubstantiated conclusions are simply too speculative to be properly admissible. The
22 Court should exclude his report from consideration at class certification.
23 The Court should exclude Bambauer’s report because her choice to omit California law
24 renders it unreliable and irrelevant to the issues in this case.
25 TR gives no response at all to Plaintiffs’ argument that Bambauer’s decision to omit her opinions on
26 California law makes her testimony unreliable. See Mot. at 11. Rather than confronting Plaintiffs’ argument
27 that this shows a lack of candor to the Court, TR misdirects, asserting that Bambauer could not discuss
28
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1 California law in her report because doing so would require her to offer an impermissible legal conclusion.
2 Opp. at 17. But TR cannot have it both ways. Bambauer’s expertise is privacy law, her qualifications are as a
3 professor of privacy law, and her report offers her opinions about U.S. privacy law. No pearl-clutching about
4 offering a legal conclusion prevented TR from offering her opinions on her preferred framework for
5 evaluating privacy harm. But at both class certification and on the merits, the Court will look to California law
6 and policy, not Bambauer’s personal opinions or an abstracted discussion of general principles. Her opinion
7 is therefore not only unreliable, but irrelevant to the questions the Court will have to resolve.
8 1. Omitting California specific law and policy renders Bambauer’s report unreliable.
9 After admitting that Bambauer does not opine on California-specific privacy law and policy, TR
10 claims (at 17) there is “no reason” for her to do so because experts “do not opine on the law.” Of course,
11 courts have long held that experts may testify about issues that involve law without offering an impermissible
12 legal conclusion. Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998 (9th Cir. 2004) (differentiating proper
13 opinions that rely upon an understanding of specific law from improper opinions that offer an ultimate legal
14 conclusion). And Bambauer’s report in fact does nothing but opine on privacy law and policy.
15 TR cannot wriggle away from the fact that Bambauer has relevant, well-documented, professional
16 opinions about California privacy policy that she chose not to disclose to the Court. See Mot. at 12-14. This
17 is especially pertinent because Bambauer attempts to cast Turow as an extremist when her understanding of
18 California law largely aligns with the opinion Turow gave in his report. The Ninth Circuit has noted that
19 “reliability becomes more, not less, important” when considering “‘experience-based’ expert opinion[s]”
20 because the normal reliability measurements—peer review, routine testing, etc.—may not be present as they
21 would in a science-based expert opinion case. United States v. Valencia-Lopez, 971 F.3d 891, 898 (9th Cir. 2020).
22 Even though Bambauer’s “qualifications and experience are relevant” to the matter at hand, those alone
23 “cannot establish the reliability and thus admissibility” of her testimony. Id. at 900. By omitting relevant—
24 central—opinions that she has expressed in her professional capacity about the way that California values
25 individuals’ right to control their information, Bambauer offers the Court fatally incomplete and unreliable
26 testimony. In any other context, Bambauer would have—and, indeed, has—included California-specific
27 opinions when discussing privacy law and policy. Mot. at 14; see also, e.g., ECF Nos. 159-7, 159-8. This reason
28
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1 alone is sufficient to exclude her testimony from this case, and TR does not respond to it whatsoever.
2 2. Because Bambauer’s report lacks California specific analysis, her opinions are
3 irrelevant and fail to engage with Turow.
4 Bambauer’s testimony is separately excludable because her framework is irrelevant to the Court’s
5 determination both of class certification and the merits. Plaintiffs’ theory of harm for their UCL claim (under
6 either the balancing or tethering test) will require the Court to consider TR’s conduct in light of California
7 constitutional or statutory laws and violations of the right to control, as this Court recognized. See ECF No.
8 54 at 17-18. And TR offers Bambauer to rebut Turow’s opinion that class members have suffered a privacy
9 harm. Opp. at 9-10. But because Bambauer’s opinions do not consider California law and policy, her
10 framework is both unresponsive to Turow’s opinions and, ultimately, unhelpful to the Court’s resolution of
11 relevant questions in this case.
12 TR’s argument (at 17-18) that Bambauer need not opine on California law because Plaintiffs do not
13 raise specific California statutory violations fails to persuade. First and foremost, the UCL is a California
14 statute that Plaintiffs allege TR violated. But more directly, it is obvious that Plaintiffs’ UCL claim will require
15 in-depth engagement with California law and policy. Turow recognizes that California has a comparatively
16 strong privacy scheme that emphasizes individuals’ control over their information because he engaged with
17 the relevant policies that Bambauer would rather the Court ignore. But Bambauer’s own view of privacy is not
18 the metric by which Turow should be measured. Even assuming that her views were widely accepted, which
19 by her own admission they are not, they are at odds with the relevant policies the Court will consider in this
20 case: California’s. See ECF No. 159-6 at 70:9-11 (Bambauer admitting the framework in her report is not
21 widely used), 93:23-24 (admitting no state has adopted ULC model privacy law she worked on), 72:20-73:3
22 (admitting California privacy is “more restrictive than most other jurisdictions”). In sum, Bambauer utterly
23 fails to engage with Turow on any relevant question—indeed, had she done so, she would have had to
24 acknowledge her many statements and writings on California policy that are consistent with Turow’s and
25 unfavorable to TR. The Court should therefore exclude her testimony or, at minimum, strike Part VI of her
26 report.
27
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1 III. CONCLUSION
2 For these additional reasons, the Court should exclude Ran Kivetz’s and Jane Bambauer’s opinions
3 or, in the alternative, strike Parts D and E of Kivetz’s report and Part IV of Bambauer’s report for failing to
4 meet the admissibility requirements of expert evidence under Rules 702 and 703.
5
6 DATED: March 20, 2023 Respectfully submitted,
7 /s/ Andre M. Mura
8 Andre M. Mura
9 Eric H. Gibbs (SBN 178658)
Andre M. Mura (SBN 298541)
10 Amy M. Zeman (SBN 273100)
11 Mark H. Troutman (pro hac vice)
Ezekiel S. Wald (SBN 341490)
12 Hanne Jensen (SBN 336045)
GIBBS LAW GROUP LLP
13 1111 Broadway, Suite 2100
14 Oakland, California 94607
Telephone: (510) 350-9700
15 Facsimile: (510) 350-9701
ehg@classlawgroup.com
16 amm@classlawgroup.com
17 amz@classlawgroup.com
mht@classlawgroup.com
18 zsw@classlawgroup.com
hj@classlawgroup.com
19
Geoffrey A. Graber (SBN 211547)
20
Karina G. Puttieva (SBN 317702)
21 COHEN MILSTEIN SELLERS & TOLL PLLC
1100 New York Ave. NW, Fifth Floor
22 Washington, DC 20005
Telephone: (202) 408-4600
23
Facsimile: (202) 408-4699
24 ggraber@cohenmilstein.com
kputtieva@cohenmilstein.com
25
Attorneys for Plaintiffs and the Proposed Class
26
27
28
PLAINTIFFS’ REPLY IN SUPPORT OF OMNIBUS MOTION TO EXCLUDE DEFENDANT’S
EXPERT OPINIONS ON CLASS CERTIFICATION
Case No.: 3:21-cv-01418-EMC-KAW
9
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- gov.uscourts.cand.374304.176.0.pdf
- Size
- 411,984 bytes
- SHA-256
- 16844f9ce6ba7d581c8e5dd5458c59659808f97b74b82d446be0786762e25dfa
- Original
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