Court filing
MOTION to Exclude Defendants Expert Opinions on Class Certification… — Brooks v. Thomson Reuters Corporation (Dkt. 181)
No. 3:21-cv-01418-EMC · Doc. 181 · Docket on CourtListener
Full text
Case 3:21-cv-01418-EMC Document 181 Filed 03/22/23 Page 1 of 20
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
5 GIBBS LAW GROUP LLP Telephone: (202) 408-4600
1111 Broadway, Suite 2100 Facsimile: (202) 408-4699
6 ggraber@cohenmilstein.com
Oakland, CA 94607
7 Telephone: (510) 350-9700 kputtieva@cohenmilstein.com
Facsimile: (510) 350-9701
8 ehg@classlawgroup.com
9 amm@classlawgroup.com
amz@classlawgroup.com
10 mht@classlawgroup.com
11 zsw@classlawgroup.com
hj@classlawgroup.com
12
13 Attorneys for Plaintiffs and the Proposed Class
14
15
UNITED STATES DISTRICT COURT FOR THE
16 NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
17
18 CAT BROOKS and RASHEED Case No. 3:21-cv-01418-EMC-KAW
SHABAZZ, individually and on behalf
19 REDACTED - PUBLIC VERSION
of all others similarly situated,
20
Plaintiffs, PLAINTIFFS’ NOTICE OF MOTION AND
21 OMNIBUS MOTION TO EXCLUDE
22 v. DEFENDANT’S EXPERT OPINIONS ON
CLASS CERTIFICATION; MEMORANDUM
23 THOMSON REUTERS CORPORATION, OF POINTS AND AUTHORITIES IN
SUPPORT THEREOF
24
Defendant.
25 Date: April 20, 2023
Time: 1:30 p.m.
26
Place: Courtroom 5, 17th Floor
27 Judge: Hon. Edward M. Chen
28
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1 NOTICE OF MOTION
2 TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD:
3 PLEASE TAKE NOTICE THAT on April 20, 2023 at 1:30 p.m., or as soon thereafter as
4 the matter may be heard, via videoconference or in Courtroom 5 of the United States District
5 Court, Northern District of California, San Francisco Division, located at 450 Golden Gate
6 Avenue, San Francisco, California 94102, before the Honorable Edward M. Chen, Plaintiffs Cat
7 Brooks and Rasheed Shabazz will, and hereby do, move this Court to exclude expert opinions
8 pursuant to the Federal Rules of Evidence 702 and 703, and Daubert v. Merrell Dow Pharm., Inc.,
9 509 U.S. 579 (1993), and related cases.
10 Plaintiffs seek an order excluding two of Thomson Reuters’ class certification rebuttal
11 experts. In particular, Plaintiffs seek to exclude:
12 Dr. Ran Kivetz’s Rebuttal Expert Report; and
13 Professor Jane Bambauer’s Rebuttal Expert Report.
14 In the alternative, Plaintiffs seek an order striking the following portions of Dr. Kivetz
15 and Professor Bambauer’s rebuttal reports, each dated September 7, 2022:
16 Dr. Ran Kivetz’s Rebuttal Expert Report ¶¶ 23-27, 29, 31, and Parts D & E; and
17 Professor Jane Bambauer’s Rebuttal Expert Report at Part IV.
18 This motion is based upon this Notice of Motion, the attached Memorandum of Points
19 and Authorities, the concurrently-filed declaration of Andre M. Mura (“Mura Declaration”)
20 and the exhibits to that declaration, the concurrently-filed Proposed Order, the pleadings and
21 records on file in this action, and upon any additional evidence and argument that may be
22 presented before or at the hearing of this motion.
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TABLE OF CONTENTS
1
Page
2
ISSUE TO BE DECIDED......................................................................................................................... 1
3
4 INTRODUCTION ................................................................................................................................... 1
5 LEGAL STANDARD .............................................................................................................................. 2
6
ARGUMENT............................................................................................................................................ 3
7
Kivetz’s opinions are not helpful to the Court’s resolution of class certification. .......... 3
8
A. Kivetz is not qualified to define privacy harms as requiring an analysis of
9 consumer expectations. ..................................................................................................... 3
10 B. Kivetz proposes a methodology incompatible with this case, then fails to reliably
apply it. ................................................................................................................................ 6
11
C. Kivetz offers unsupported speculation and repeats, without independently
12 confirming, the statements of Thomson Reuters as fact............................................... 8
13 Bambauer’s report is unreliable and unhelpful to the Court because Bambauer has
publicly stated that her views on privacy are contrary to California law. .................... 11
14
15 CONCLUSION ...................................................................................................................................... 14
16
17
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TABLE OF AUTHORITIES
1
Cases Page(s)
2
Ask Chemicals, LP v. Computer Packages, Inc.,
3
593 Fed.Appx. 506 (6th Cir. 2014) ...................................................................................................... 9
4
Brown v. Google, LLC,
5 2022 WL 17961497 (N.D. Cal. Dec. 12, 2022) ......................................................................... Passim
6 Caldwell v. City of San Francisco,
7 2021 WL 1391464 (N.D. Cal. Apr. 13, 2021)........................................................................ 4, 5, 9, 10
8 Claar v. Burlington N. R. Co.,
29 F.3d 499 (9th Cir. 1994) ................................................................................................................. 12
9
10 Cooper v. Brown,
510 F.3d 870 (9th Cir. 2007) ............................................................................................................. 8, 9
11
Daubert v. Merrell Dow Pharm., Inc.,
12 509 U.S. 579 (1993) ............................................................................................................................... 2
13
Elosu v. Middlefork Ranch Inc.,
14 26 F.4th 1017 (9th Cir. 2022) ............................................................................................................... 8
15 Farar v. Bayer AG,
2017 WL 5952876 (N.D. Cal. Nov. 15, 2017) ..................................................................................... 7
16
17 Gen. Elec. Co. v. Joiner,
522 U.S. 136 (1997) ............................................................................................................................... 8
18
GPNE Corp. v. Apple, Inc.,
19
2014 WL 3870256 (N.D. Cal. Aug. 6, 2014) ....................................................................................... 4
20
In re Google Play Store Antitrust Litig.,
21 2022 WL 17252587 (N.D. Cal. Nov. 28, 2022) ................................................................................... 5
22 Morin v. McCulloch Corp.,
23 2002 WL 34357202 (C.D. Cal. July 3, 2002) ............................................................................... 11, 12
24 Nelson v. Matrixx Initiatives,
2012 WL 3627399 (N.D. Cal. Aug. 21, 2012) ................................................................................... 12
25
Olean Wholesale Grocery Coop. v. Bumble Bee Foods LLC,
26
31 F.4th 651 (9th Cir. 2022) ................................................................................................................. 3
27
Red v. Kraft Foods, Inc.,
28 2011 WL 4599833 (C.D. Cal. Sept. 29, 2011) ..................................................................................... 6
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1 Spintouch, Inc. v. Outform, Inc.,
2 2022 WL 17363902 (C.D. Cal. Sept. 28, 2022) ................................................................................... 8
3 Stephens v. Union Pac. R.R. Co.,
935 F.3d 852 (9th Cir. 2019) ................................................................................................................. 9
4
Viterbo v. Dow Chem. Co.,
5
826 F.2d 420 (5th Cir. 1987) ............................................................................................................. 8, 9
6
Zetz v. Boston Sci. Corp.,
7 2022 WL 17418450 (E.D. Cal. Dec. 5, 2022) ................................................................................... 8, 9
8 Rules
9
Fed. R. Evid. 702 ........................................................................................................................... Passim
10
Fed. R. Evid. 703 .................................................................................................................................... 10
11
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1 MEMORANDUM OF POINTS AND AUTHORITIES
2 ISSUE TO BE DECIDED
3 Whether the Court should exclude or limit the expert opinions of Thomson Reuters’ (TR)
4 class certification rebuttal experts Ran Kivetz and Jane Bambauer under Rules 702 and 703 of
5 the Federal Rules of Evidence, and Daubert.
6 INTRODUCTION
7 Plaintiffs’ expert Joseph Turow, a privacy scholar (among other areas), opines in his
8 expert report in support of class certification that “Thomson Reuters’ operation of the CLEAR
9 product affects privacy interests of Californians—the right to control personal information and
10 to be let alone—in such a way that all Californians whose information is accessible through
11 CLEAR are harmed.” ECF No. 124-7 at 8. Turow offered the Court an understanding of privacy
12 grounded in California law, history, and policy. TR seeks to rebut Turow through the opinions
13 of Ran Kivetz, a professor of marketing, and Jane Bambauer, a professor of law, but certain
14 opinions of theirs are inadmissible.
15 Kivetz argues that the only way to think about California privacy law is to get inside
16 every Californian’s head and to evaluate their subjective perceptions and expectations under
17 hyper-specific contextual circumstances. But Kivetz is not qualified to offer this opinion to the
18 Court, and he readily admits it. He has no experience studying or teaching about privacy. He
19 has never published on the topic of privacy, under California law or otherwise. He did not even
20 bother to read the report of Bambauer—TR’s other proposed privacy expert. But even if Kivetz
21 were qualified to opine on privacy, he fails to reliably apply the very methodology he
22 propounds, or even support his opinions with evidence. For these reasons, Kivetz should be
23 excluded as a class certification expert. In the alternative, the Court should strike Parts D and
24 E of his report, where he asserts that Turow’s conclusions about privacy are wrong and that
25 subjective consumer expectations are the only proper measure of privacy here.
26 Bambauer, in turn, opines that Turow’s view of privacy (as recognizing a right to
27 control) is “extreme” and contrary to U.S. privacy law. This attack is unsurprising: Bambauer
28 has built a career fighting against California’s privacy scheme in favor of a tech-friendly
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1 approach that reduces consumer control. But instead of coming out and saying so, Bambauer
2 sidesteps the issue entirely—nowhere in her report does she address, or even mention,
3 California law, much less her views about it. That omission is astounding in a case about the
4 corporate violation of Californians’ privacy rights where Plaintiffs assert only California state
5 law claims, particularly from a law professor. While TR may prefer Bambauer’s litigation-
6 driven position, her professional position outside of this case tells a different story. In public
7 statements, writings, and sworn congressional testimony, Bambauer repeatedly acknowledges
8 that individuals’ right to control their information is a focal point of California’s privacy
9 scheme—just as Turow defines it. Moreover, Bambauer admits that her own views of privacy
10 are incompatible with California law and are not widely accepted: the model legislation she
11 assisted drafting that would shift state privacy laws away from California privacy standards
12 has not been adopted by any state. The Court should exclude Bambauer’s good-for-litigation-
13 only opinion that an individual’s right to control their information is an “extreme” and
14 unaccepted view because she fails to consider the controlling law in this case and omits her
15 actually responsive professional opinion. In the alternative, the Court should strike her
16 proposed framework for evaluating privacy harm because it ignores California law and is
17 therefore unresponsive to the claims in this litigation.
18 In sum, because Kivetz and Bambauer do not offer the Court reliable, reasonable,
19 qualified, or supported opinions to aid its resolution of the motion for class certification, their
20 opinions should be excluded or limited at this stage.
21 LEGAL STANDARD
22 Federal Rules of Evidence 702 and 703, as interpreted by Daubert v. Merrell Dow
23 Pharmaceuticals, Inc., 509 U.S. 579 (1993), permit expert opinion evidence so long as that expert
24 is qualified, and based upon that qualification, the expert’s opinion is relevant, reliable, and
25 based on the types of facts or data reasonably relied upon in that field. “The expert may be
26 qualified by ‘knowledge, skill, experience, training, or education’ as to the subject matter of the
27 opinion.” Brown v. Google, LLC, No. 20-CV-3664-YGR, 2022 WL 17961497, at *1 (N.D. Cal. Dec.
28 12, 2022) (quoting Fed. R. Evid. 702). The proponent of expert opinion evidence has the burden
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1 of proving admissibility. Id. At class certification, “the relevant inquiry is a tailored Daubert
2 analysis which scrutinizes the reliability of the expert testimony in light of the criteria for class
3 certification and the current state of the evidence.” Id. (collecting cases); see also Olean Wholesale
4 Grocery Coop. v. Bumble Bee Foods LLC, 31 F.4th 651, 665 (9th Cir. 2022) (recognizing that at class
5 certification, parties “may use any admissible evidence,” including admissible expert
6 opinions).
7 ARGUMENT
8 Kivetz’s opinions are not helpful to the Court’s resolution of class certification.
9 Kivetz offers the Court four interrelated opinions. First, that the privacy harms here can
10 only be defined and measured based on subjective consumer expectations. See, e.g., ECF No.
11 151-14 ¶ 50. Second, that substantiating those privacy harms require a specific methodological
12 practice—original survey research. See, e.g., id. ¶ 52. Third, that Professor Turow is wrong that
13 the right to control is an aspect of Californians’ privacy rights, and that the only potential injury
14 here is a psychic injury. See id. ¶¶ 56-109. And fourth, that there is no classwide harm based on
15 California’s right to control one’s information and right to be let alone. See id. ¶¶ 110-118.
16 Each of these opinions is inadmissible, unreliable, and unhelpful to the Court. Kivetz is
17 not qualified to opine on the contours of California’s privacy rights or the harms caused by
18 their violation. He is not qualified to synthesize and contextualize long-standing scholarly
19 debates on privacy. And he did not do the work to offer such an opinion. He did not review,
20 much less rely on, the proposed expert report of Professor Bambauer, or offer any other
21 substantive support for his position on California privacy rights here. He offers his subjective
22 opinion, buttressed solely by his credentials (which have nothing to do with privacy). And
23 finally, Kivetz fails even to reasonably apply his own framework. For all of these reasons, the
24 Court should exclude Kivetz from class certification, or in the alternative, strike Parts D and E
25 of his report.
26 A. Kivetz is not qualified to define privacy harms as requiring an analysis of
consumer expectations.
27
28 For the first time in his career, Kivetz is attempting to opine on privacy. He purports to
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1 offer the opinion that “privacy harms” caused by CLEAR “must” be defined solely by
2 consumer expectations and individual preferences. ECF No. 151-14 ¶¶ 49-50. This opinion is
3 the linchpin of Kivetz’s conclusion that assessing the class’s privacy harms requires
4 individualized inquiries into class members’ subjective states of mind, opinions, and
5 preferences. Id. ¶¶ 49-54. The centrality of individual subjective views about privacy is
6 foundational to the opinions that he offers the Court. See id. ¶ 23 (listing this opinion first in his
7 summary of conclusions). But Kivetz admits that he is not qualified to opine on the proper
8 contours of privacy harms, under California law or otherwise. See Ex. 1 at 56:24-61:16.1 Kivetz
9 cites nothing that even suggests his unfounded speculation on California privacy rights would
10 be helpful to the Court in evaluating class certification. And to the extent that Kivetz could have
11 done the work to support this opinion (for example, by relying on another expert who was so
12 qualified)—he declined to do so. See ECF No. 151-14 at 135.
13 This is insufficient to pass muster under Daubert. An expert must opine within the
14 bounds of their particular expertise. Brown, 2022 WL 17961497, at *11; GPNE Corp. v. Apple, Inc.,
15 No. 12-CV-02885-LHK, 2014 WL 3870256, at *7 (N.D. Cal. Aug. 6, 2014). And “[i]n evaluating a
16 proposed expert’s qualifications, the court looks not at the qualifications of a witness in the
17 abstract, but whether those qualifications provide a foundation for a witness to answer a
18 specific question.” Caldwell v. City of San Francisco, No. 12-CV-01892-DMR, 2021 WL 1391464, at
19 *3 (N.D. Cal. Apr. 13, 2021).
20 The answer here is no. Kivetz is not qualified to opine that the only privacy harm in this
21 case “exists in consumers’ minds,” that it is derived from (and only measurable by evaluating)
22 subjective perceptions, and that this harm manifests as a “psychic” injury. See ECF No. 151-14
23 ¶¶ 23-27, 29, 45-46, 49-55; Parts D-E. 2 Indeed, he repeatedly disclaims understanding what
24
1 All citations to exhibits refer to exhibits to the Mura Declaration unless otherwise noted.
25
2 See ECF No. 151-14 ¶¶ 49, 51-55 (opining that the only way to measure harm here is through
26
empirical review of subjective consumer expectations), ¶ 50 (claiming that any privacy harm
27 here must exist in consumers’ minds), ¶¶45-46, 56-109 (purporting to weigh in on the
scholarly debate on the contours of privacy rights and disagreeing with Turow’s synthesis
28
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1 “privacy” means and refused to offer his own definition of the term. Ex. 1 at 56:24-57:3. He has
2 never taught a course on the subject. Id.; see ECF No. 151-14 ¶¶ 7-8. Nor has he ever published
3 a paper addressing privacy rights, under California law or otherwise. Ex. 1 at 60:12-61:16. He
4 does not claim a discussion of privacy as part of his mandate in this case or mention privacy as
5 one of his topics of study or expertise. ECF No. 151-14 ¶¶ 1, 5-8. He did not rely on—or even
6 review—Bambauer’s report on the topic.3 See ECF No. 151-14 at 135 (listing “Expert Reports”
7 made available to Kivetz in preparing his report, which does not include Bambauer’s Rebuttal
8 Expert Report). And in her own report, Bambauer does not advance Kivetz’s “psychic injury”
9 theory, nor does she ever state that consumer expectations control whether a privacy injury
10 occurs. In short, Kivetz simply offers no “scientific, technical, or other specialized knowledge”
11 whatsoever that might assist the Court in understanding the nature of privacy rights—let alone
12 support his conclusion that Professor Turow’s discussion of privacy harms is somehow invalid.
13 See id. ¶¶ 110-118; Fed. R. Evid. 702(a). His opinions do not “rest[] on a reliable foundation and
14 [are not] relevant to the task at hand.” In re Google Play Store Antitrust Litig., No. 21-MD-02981-
15 JD, 2022 WL 17252587, at *3 (N.D. Cal. Nov. 28, 2022).
16 For these reasons, Kivetz cannot help the Court answer the “specific question[s]” posed
17 by Rule 23 in this privacy case, and the Court should exclude Kivetz, or in the alternative, strike
18 Parts D and E of Kivetz’s report that purport to opine on the nature and scope of privacy rights
19 for purposes of class certification. Caldwell, 2021 WL 1391464, at *3; Brown, 2022 WL 17961497,
20
thereof), Part D (same), Part E (speculating that class members are not injured from TR’s
21 violation of their right to control their information, and may even like CLEAR), ¶¶23-27
(summarizing these same opinions).
22
3 That Kivetz would blind himself to Bambauer’s report and scholarship is not surprising; his
23
consumer-expectation framework directly contradicts her view that consumers can’t be
24 trusted to make decisions about privacy. When she testified before the Senate Judiciary
25 Committee, Bambauer explained that consent should not be the standard because consumers
are often “overprotect[ed]” when they “distrust” data use practices that are—in Bambauer’s
26 view—good for them. See GDPR & CCPA: Opt-ins, Consumer Control, and the Impact on
27 Competition and Innovation: Hearing Before the Sen. Comm. On the Judiciary, 116th Cong. (Mar.
12, 2019) at 2:18:18-19:07, available at https://www.judiciary.senate.gov/meetings/gdpr-
28 and-ccpa-opt-ins-consumer-control-and-the-impact-on-competition-and-innovation.
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1 at *11.
2 B. Kivetz proposes a methodology incompatible with this case, then fails to
reliably apply it.
3
4 Even if Kivetz were qualified to opine on privacy issues—which he is not—his opinions
5 should still be excluded or limited because he neither proposes a compatible methodology for
6 evaluating privacy harms nor adheres to the standards he himself promotes. It is not enough
7 for an expert witness to be qualified to opine on an issue—they must propose a reliable
8 methodology, reliably apply that methodology in their report, and tailor their analysis to the
9 facts at issue in the case. Fed. R. Evid. 702(d); Brown, 2022 WL 17961497, at *11. Kivetz fails on
10 all counts.
11 Kivetz fails to propose a reliable and compatible methodology for measuring privacy
12 harm in this case. He claims that the only way to establish and measure privacy harm (which
13 he mischaracterizes as a psychic injury only) necessitates getting into the minds of consumers.
14 See ECF No. 151-14 ¶¶ 49-55. But Kivetz has done no work to show that using consumer
15 perception surveys is widely accepted in the privacy field to determine whether a practice or
16 product violates the right to control information about oneself. See id. ¶¶ 5-9, 23-27, 29, 46, 49-
17 55, Ex. B (listing cases in which Kivetz has previously offered expert opinions). Nor does Kivetz
18 ever explain why his experience measuring consumer perceptions about food labeling and false
19 advertising is relevant to a privacy case where the class members—by design—did not engage
20 with the product or know it exists. See ECF No. 151-14 ¶ 21. Kivetz’s approach, then, is a non-
21 sequitur. Plaintiffs’ theory of the case is that the class is universally harmed by their lack of
22 control over the information TR collects about them and commercially exploits through
23 CLEAR. Asking how an individual class member might choose to assert their control if they
24 did have that knowledge, as well as the option to exercise their control, is wholly unresponsive
25 to the harm alleged and the realities of this case. See Red v. Kraft Foods, Inc., No. CV 10–1028–
26 GW(AGRx), 2011 WL 4599833, at *12-13 (C.D. Cal. Sept. 29, 2011) (finding Kivetz’s individuated
27 consumer expectation theory did not defeat class certification).
28 Even supposing that Kivetz’s proposed framework of evaluating consumer expectations
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1 fit the facts of this case, Kivetz fails to meet his own standards. In Part E of his report, Kivetz
2 argues that consumers will appreciate CLEAR, but fails to offer any evidence of consumer
3 expectations, much less any of the survey evidence that he claims is obligatory to determine
4 what consumers feel. Instead, he supplies only two sources that are even arguably responsive,
5 neither of which measure consumer expectations regarding privacy or mention any product at
6 all. See ECF No. 151-14 ¶¶ 126 n.264, 155 n.334; Ex. 2 (first source); Ex. 3 (second source). The
7 first article is an “interdisciplinary review” of privacy-related research, not a consumer survey
8 or measurement of consumer expectations around privacy. See Ex. 2. The second summarizes
9 consumer perceptions about digital marketing and targeted advertising—a type of digital
10 commerce that Kivetz himself considers wholly dissimilar to CLEAR. See Ex. 3; ECF No. 151-14
11 ¶¶ 72, 81, 128.4 So while Kivetz is wrong that the Court need consider how individuals might
12 exercise their right to control, he also fails to reliably apply the methodology he demands the
13 Court use. That failure also renders his conclusions unreliable and unhelpful here. Fed. R. Evid.
14 702(c), (d); Brown, 2022 WL 17961497, at *11.
15 Ultimately, Kivetz fails to connect his proposed metric to the facts of this case. It is
16 nonsensical to isolate the privacy harms here to consumers’ psychic injuries when Californians
17 do not even know of the alleged unlawful practice and are given no choice in the matter. But
18 even assuming consumer expectations were relevant to the Court’s class certification inquiry,
19 Kivetz’s report would still be unhelpful because his conclusion that class members would like
20 CLEAR if only they knew more about it is not grounded in any evidence of consumer
21 expectations. See infra, Section I.C; see Farar v. Bayer AG, No. 14-cv-04601-WHO, 2017 WL
22 5952876, at *12 (N.D. Cal. Nov. 15, 2017) (granting class certification and finding that Kivetz’s
23 consumer expectation survey was “inconclusive” as to elements of the predominance inquiry).
24 Because Kivetz fails to propose or apply a reliable methodology for measuring privacy harm,
25 the Court should exclude his report.
26
4 Worse, Kivetz glosses over the paper’s conclusion that the majority of consumers view
27
companies assembling data about them as “intrusive,” prompting the authors to recommend
28 that businesses “give[] data ownership and control to consumers.” Ex. 3 at 10.
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1 C. Kivetz offers unsupported speculation and repeats, without independently
confirming, the statements of Thomson Reuters as fact.
2
3 The third reason that the Court should exclude or limit Kivetz’s opinions is his
4 manifest failure to support his conclusions. “‘[N]othing in either Daubert or the Federal Rules
5 of Evidence requires a district court to admit opinion evidence that is connected to existing
6 data only by the ipse dixit of the expert,’ and ‘a trial court may exclude evidence when it finds
7 that there is simply too great an analytical gap between the data and the opinion proffered.’”
8 Zetz v. Boston Sci. Corp., ---F. Supp. 3d---, 2022 WL 17418450, at *3 (E.D. Cal. Dec. 5, 2022)
9 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). An expert may not create admissible
10 evidence simply by placing their credentials behind the statements of a party, and “parroting”
11 those statements as their own. Spintouch, Inc. v. Outform, Inc., No. 21-00840-DOC, 2022 WL
12 17363902, at *5 (C.D. Cal. Sept. 28, 2022). Rather, expert opinions must be supported by actual
13 “facts and data,” and may not “include unsubstantiated speculation and subjective beliefs.”
14 Fed. R. Evid. 702(b); Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007); Elosu v. Middlefork Ranch
15 Inc., 26 F.4th 1017, 1025 (9th Cir. 2022). “Without more than credentials and a subjective
16 opinion, an expert’s opinion that ‘it is so’ is not admissible.” Viterbo v. Dow Chem. Co., 826 F.2d
17 420, 424 (5th Cir. 1987).
18 Kivetz’s opinions are wholly unsubstantiated. Kivetz tells the Court—repeatedly—that
19 some class members are “likely” to have differing views about CLEAR, with the implication
20 that these differences will somehow impact whether common questions of law or fact
21 predominate in Plaintiffs’ UCL claim. See ECF No. 151-14 ¶¶ 31, 82, 121, 136, 138, 142-144, 153-
22 155, 162; see also ECF No. 150-4 at 20. Apart from Kivetz’s failure to apply his own
23 methodological framework for measuring consumer expectations of CLEAR, Kivetz offers no
24 evidence whatsoever to support any of these assertions. Kivetz argues, for example, that because
25 there are many data aggregators in the marketplace, class members would not be “dissatisfied”
26 with TR’s activities, ECF No. 151-14 ¶ 162, or that because government customers may use
27 CLEAR to incarcerate “bad actors,” class members “may” view CLEAR as a net benefit. Id.
28 ¶¶ 142-143. But Kivetz cites to no evidence of consumers’ awareness of data aggregators (much
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1 less their opinion about data aggregation as a practice). Nor does he offer any evidentiary
2 support for his belief that class members would accept violations of their privacy because
3 CLEAR is somehow so beneficial to them or society. Kivetz even goes so far as to speculate that
4 “it is likely that at least some putative class members who are informed about CLEAR’s various
5 potential benefits and safeguards would prefer to (or even be willing to pay to) have information
6 collected and/or disseminated through CLEAR.” Id. ¶ 153. Again, he provides no support for
7 this claim. Kivetz cannot transform these statements into expert opinions based solely on his
8 credentials and his personal belief.5 See Viterbo, 826 F.2d at 424; Cooper, 510 F.3d at 942; Zetz,
9 2022 WL 17418450, at *3. Without evidence, these opinions amount to little more than
10 unsubstantiated musings, and the Court should exclude them. See ECF No. 150-4 at 6 n.23;
11 see also Viterbo, 826 F.2d at 424.
12 Second, Kivetz parrots TR’s talking points without critical engagement. Kivetz tells the
13 Court a number of “facts” about CLEAR and how consumers may view CLEAR—but bases his
14 information solely on statements by TR (either given directly to him in an interview, or from
15 TR’s materials in discovery). Kivetz may not transform the statements of TR into admissible
16 expert evidence merely by assuming their correctness. See Stephens v. Union Pac. R.R. Co., 935
17 F.3d 852, 857-58 (9th Cir. 2019); Caldwell, 2021 WL 1391464, at *5. But that is exactly what Kivetz
18 has attempted here. He simply interviewed Kevin Appold, the Vice President of Investigations
19 and Public Records at Thomson Reuters, and then repeated the information he learned as his
20 own expert opinion. See, e.g., ECF No. 151-14 ¶ 15 (disclosing the Appold interview); id. ¶¶ 20
21 n.15, 21 n.16, 83 n.161, 152, 155 n.335 (citing the Appold interview as fact). “Where an expert
22 merely offers his client’s opinion as his own, that opinion may be excluded.” Ask Chemicals, LP
23 v. Computer Packages, Inc., 593 Fed.Appx. 506, 510 (6th Cir. 2014) (unpublished) (citing cases);
24
5 Kivetz premises some of the value of his credentials on his extensive experience as an expert
25
witness testifying on behalf of corporate defendants. See ECF No. 151-14 ¶¶ 12-13, Ex. B
26 (listing cases in which Kivetz testified over the preceding four years—most (if not all) in
27 support of a corporate defendant). But while a lucrative practice (generating of
dollars a year), that experience is equally insufficient to transform rampant speculation into
28 admissible evidence. Ex. 1 at 26:4-28:5; 40:5-23; 41:16-25.
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1 see Caldwell, 2021 WL 1391464, at *5; Fed. R. Evid. 703.
2 Third, Kivetz’s review of Turow’s work and sources is inadequate, generating
3 misleading and unhelpful conclusions. Kivetz makes much about the importance of assessing
4 how questions are posed to survey respondents to avoid inaccurate results. See ECF No. 151-14
5 ¶ 93 n.181. But Kivetz did not apply this same level of care to meaningfully engage with,
6 understand, or rebut Turow’s sources.6 Instead, Kivetz casts around for reasons that would
7 support his desired conclusions. See ECF No. 151-14 ¶¶ 76-77 (opining that Turow’s sources
8 directly contradict his report based on Kivetz’s misunderstanding of the source).
9 Instead of actually engaging with Turow’s evidence, Kivetz relies on internally
10 inconsistent and facially results-oriented suppositions. Kivetz criticized the ValuePenguin
11 survey by speculating about whether respondents were asked questions about “marketers”—
12 without any evidence that they were. Id. ¶¶ 80-81. When confronted with evidence from the
13 Pew Research Center that consumers overwhelmingly desire control over their information,
14 Kivetz attacks straightforward questions such as “how important . . . [is] . . . being in control of
15 who can get info about you” for being “vague” and “leading,” without offering any specific
16 suggestions of how the question could be improved, much less providing any survey evidence
17 that would be preferable. Id. ¶¶ 91-92. These speculative assertions reveal Kivetz’s analysis for
18 what it is—a half-hearted attempt to create problems with evidence where there are none. See,
19
6 For example, Turow relied on a 2019 National Telecommunications and Information
20
Administration (NTIA) survey, titled “Nearly Three-Fourths of Online Households Continue
21 to Have Digital Privacy and Security Concerns.” See ECF No. 124-7 at 6 n.6. Kivetz criticized
Turow for relying on a chart in the survey showing that 73% of households expressed major
22 concern about privacy or security while using the internet, arguing that because the terms
23 were “vague and ill-defined,” “a subsequent question in the survey apparently asked the
participants to clarify the specific source of their apparent concerns.” ECF No. 151-14 ¶¶ 74-
24 75. Likewise, in his deposition, Kivetz insisted that “there was a follow-up question,” that
25 when he reviewed Turow’s Report he found it to be “inaccurate” compared to what the
survey “actually does show,” and that he had “had the NTIA survey article in front of [him]”
26 and “knew everything that [he] could know about it.” Ex. 1 at 191:13, 194:1-10. But none of
27 this was true. NTIA makes its survey questions publicly available on its website. See NTIA,
“November 2019 CPS Computer and Internet Use Supplement,” available at
28 https://www.ntia.gov/files/ntia/blogimages/november_2019_cps_supplement_-_final.pdf.
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1 e.g., Morin v. McCulloch Corp., No. CV-01-6431-SVW, 2002 WL 34357202, at *2 (C.D. Cal. July 3,
2 2002) (explaining that to be reliable, litigation consultants must perform their work with the
3 same care they otherwise would).
4 For these reasons, the Court should exclude Kivetz’s opinions or, at minimum, strike
5 Parts D and E of Kivetz’s Report.
6 Bambauer’s report is unreliable and unhelpful to the Court because Bambauer has
publicly stated that her views on privacy are contrary to California law.
7
8 To counter Turow, TR also hired Bambauer, an academic who has made a career of
9 criticizing California’s strong consent and control model of privacy. But here, Bambauer does
10 not actually discuss California privacy law or her opinions about it. Instead, she attempts to
11 position Turow as an outlier in his view of how California treats privacy. ECF No. 151-1 at 6.
12 She claims that Turow “wrongly insists that an unconsented collection, disclosure, or use of
13 personal data constitutes a privacy harm,” and that his position is “extreme” and “untenable.”
14 ECF No. 151-1 at 6. Bambauer then offers the Court her preferred alternative to California law—
15 a tripartite, context-based framework for assessing privacy harms that she later admits is not
16 used by other privacy scholars. See id. at 6-16; Ex. 4 at 70:9-11. Bambauer’s litigation opinions
17 conceal that she has, for years, spoken professionally and publicly about her disapproval of
18 California’s particularly strong privacy scheme. She has done so under oath before Congress,
19 and on a legal commentary podcast the very same month she submitted her report in this case.
20 In fact, these public statements show she agrees with Turow that California law vests in its
21 citizens a property-style right to control how their information is used and by whom. Those
22 opinions are mysteriously absent from her report. Bambauer’s failure to consider the only
23 controlling law in this case makes her opinions on class certification unreliable and unhelpful.
24 But just as importantly, Bambauer’s choice to omit her California-specific opinions shows a lack
25 of candor toward the Court that renders her opinions inadmissible.
26 By failing to even reference California law, much less engage directly with Turow’s
27 analysis about Californians’ privacy rights, Bambauer is not “being as careful as [she] would
28 be in [her] regular professional work outside [her] paid litigation consulting.” Morin, 2002 WL
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1 34357202, at *2 (cleaned up). Daubert requires the trial court to assure itself that the expert
2 “employs in the courtroom the same level of intellectual rigor that characterizes the practice of
3 an expert in the relevant field.” Id. (cleaned up). Thus, an expert who “made [no] effort” to
4 consider obvious contrary evidence, follow standard procedures in their field, or look to clear
5 alternatives of which they are aware fails to pass Daubert’s gates. Claar v. Burlington N. R. Co.,
6 29 F.3d 499, 502-03 (9th Cir. 1994); Nelson v. Matrixx Initiatives, No. 09-02904-WHA, 2012 WL
7 3627399, at *8-10 (N.D. Cal. Aug. 21, 2012), aff’d, 592 F. App’x 591 (9th Cir. 2015); Fed. R. Evid.
8 702 advisory committee notes to 2000 amendments. By ignoring California law, despite the fact
9 that this is a case about California privacy rights, Bambauer cannot satisfy this requirement or
10 assist the Court in its determination of class certification.
11 Bambauer offers no excuse for her failure to consider California law here. As a privacy
12 law scholar, Bambauer has spoken at length about how California law treats privacy—and her
13 disapproval of California’s approach. When she testified before the full Senate Judiciary
14 Committee in 2019, Bambauer described California privacy law as “creat[ing] a property right”
15 where “the idea is that as a consumer, it’s your data and you’re the ultimate authority about its
16 best uses.”7 This testimony is consistent with remarks she made as a panelist on a Federalist
17 Society podcast in 2018, in which Bambauer described California’s privacy scheme as a “strong
18 consent model” that “says consumers have kind of overwhelming interest in understanding
19 how their data is collected and used, and should be given not only clear notice, very effective
20 notice . . . and then an opportunity to reject the terms and yet still use the service.” 8 In comments
21 to Law360 about her work as a reporter for the Uniform Law Commission’s model Uniform
22
7 See, e.g., GDPR & CCPA: Opt-ins, Consumer Control, and the Impact on Competition and
23
Innovation: Hearing Before the Sen. Comm. On the Judiciary, 116th Cong. (Mar. 12, 2019) at
24 2:17:17-32, available at https://www.judiciary.senate.gov/meetings/gdpr-and-ccpa-opt-ins-
25 consumer-control-and-the-impact-on-competition-and-innovation; Ex. 4 at 122:3-7, 132:9-136:1
(authenticating).
26
8 Ex. 5 (transcript of The Federalist Society’s Practice Group Podcast, The Right to Be Forgotten,
27
The Federalist Society (Oct. 5, 2018 12:30p.m. EDT), available at
28 https://fedsoc.org/events/the-right-to-be-forgotten); Ex. 4 at 138:2-140:2 (authenticating).
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1 Data Privacy and Protection Act, Bambauer remarked that she was “glad” the Commission
2 didn’t adopt a similar privacy standard to California’s and, if it had wanted to do so, she
3 “probably[] would not have been the right reporter” for the project.9 Instead, Bambauer wanted
4 to move away from a “property approach” that “vest[s] control in the data subject.” 10
5 None of Bambauer’s views on California privacy law are included in her report, despite
6 the obvious centrality of California law in this case and in her own academic writings about
7 U.S. privacy law. Bambauer’s decision to simply ignore California law in her opinion renders
8 her report deeply unreliable and unhelpful to the Court. For example, TR uses Bambauer to
9 support its argument that Turow’s views “contradict . . . basic tenets of U.S. privacy law.” See
10 ECF No. 150-4 at 6 n.23. But as a preliminary matter, Bambauer does not offer a view of the
11 “basic tenets of U.S. privacy law”—the framework she offers in her report is not widely used
12 by privacy scholars, and she admits that her work on privacy is itself not widely accepted. See
13 Ex. 4 at 70:9-11 (tripartite framework not widely used), 93:23-24 (admitting no state has adopted
14 ULC model law she worked on). Next, Bambauer readily admits that California law—the law at
15 issue in this case—offers stronger protections for its citizens than other states, including the
16 model she herself advances. See id. at 72:20-73:3 (agreeing that California privacy law, when
17 taken as a whole, is “more restrictive than most other jurisdictions”).
18 In fact, Bambauer’s public statements and congressional testimony make clear that she
19 agrees that, whatever theoretical privacy framework she may advocate for, California law vests
20 individuals with a right to control their information—an opinion that is inexplicably absent
21 from her report. As a result, Bambauer fails to engage with the predicate harm in this case at
22 all, electing instead to focus on the potential benefits that CLEAR may provide to users. But
23 without engaging with the underlying violation of Californians’ privacy rights, Bambauer
24
9 Ex. 6 (transcript of The Information Management 260 Podcast, Episode 30: Discussing Privacy
25
Regulation with the Uniform Law Commission, Law360 (Sept. 7, 2022), available at
26 https://www.archive360.com/podcast/discussing-privacy-regulation-with-the-uniform-law-
27 commission); Ex. 4 at 120:18-121:25 (authenticating).
28 10 Ex. 6.
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1 overlooks the questions that are core to the resolution of Plaintiffs’ class certification motion,
2 skipping ahead to the balancing test itself, which is a merits inquiry. Compare ECF No. 124-7 at
3 13 (reasoning that because “no Californian has control over the information in or use of dossiers
4 about them . . . all Californians face these same harms”) with ECF No. 151-1 at 33 (“Prof. Turow
5 believes each and every Californian has been harmed by the CLEAR platform. In fact, even the
6 named Plaintiffs have benefited from their data’s inclusion in the CLEAR product.”).
7 Because Bambauer’s report does not focus on—or even reference—California privacy
8 law, it lacks relevance to this litigation. Moreover, Bambauer’s choice to omit her professional
9 opinions about California law and the rights that Californians enjoy as a result renders her
10 report unreliable—in any other context about privacy law and data sharing, she both would
11 and has included California-specific opinions, yet here they are conspicuously absent.
12 Critically, Bambauer’s opinions about privacy law generally are nonresponsive to the specific
13 points Turow makes in his report about California law and are unhelpful to the legal questions
14 the Court must resolve at class certification. For these reasons, the Court should exclude her
15 opinions. In the alternative, the Court should strike Part IV of her report, outlining her
16 definition of privacy harm that is not recognized by privacy scholars and ignores California
17 law, because it is unreliable, unhelpful, and irrelevant to this litigation.
18 CONCLUSION
19 For these reasons, Plaintiffs respectfully request that the Court exclude Ran Kivetz’s and
20 Jane Bambauer’s opinions or, in the alternative, strike Parts D and E of Kivetz’s Report and Part
21 IV of Bambauer’s Report for failing to meet the admissibility requirements of expert evidence
22 under Rules 702 and 703.
23
24 DATED: February 6, 2023 Respectfully submitted,
25
/s/ Andre M. Mura
26 Andre M. Mura
27
Eric H. Gibbs (SBN 178658)
28 Andre M. Mura (SBN 298541)
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Amy M. Zeman (SBN 273100)
1
Mark H. Troutman (pro hac vice)
2 Ezekiel S. Wald (SBN 341490)
Hanne Jensen (SBN 336045)
3
GIBBS LAW GROUP LLP
4 1111 Broadway, Suite 2100
Oakland, California 94607
5
Telephone: (510) 350-9700
6 Facsimile: (510) 350-9701
ehg@classlawgroup.com
7 amm@classlawgroup.com
8 amz@classlawgroup.com
mht@classlawgroup.com
9 zsw@classlawgroup.com
10 hj@classlawgroup.com
11 Geoffrey A. Graber (SBN 211547)
12 Karina G. Puttieva (SBN 317702)
COHEN MILSTEIN SELLERS & TOLL
13 PLLC
14 1100 New York Ave. NW, Fifth Floor
Washington, DC 20005
15 Telephone: (202) 408-4600
Facsimile: (202) 408-4699
16
ggraber@cohenmilstein.com
17 kputtieva@cohenmilstein.com
18
Attorneys for Plaintiffs and the Proposed Class
19
20
21
22
23
24
25
26
27
28
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