Rodriguez v. Google LLC
20-cv-04688-RS (N.D. Cal. Jan. 3, 2024)
If all four Rule 23(a) prerequisites are satisfied,
plaintiffs must also “satisfy through evidentiary
proof' at least one of the three subsections of Rule
23(b). Comcast Corp. v. Behrend, 569 U.S. 27, 33
(2013). Rule 23(b)(3) requires that “the questions
of law or fact common to class members
predominate over any questions affecting only
individual members, and that a class action is
superior to other available methods for fairly and
efficiently
adjudicating
the
controversy.”
Fed.R.Civ.P. 23(b)(3). Such common questions
need only be capable of classwide resolution;
plaintiffs are not required to show that “the
evidence in fact establishes [they] would win at
trial.” Olean, 31 F.4th at 667. Rule 23(b)(2)
requires that “the opposing party has acted or
refused to act on grounds that apply generally to
the class” and “final injunctive relief or
corresponding declaratory relief is appropriate
respecting the class as a whole.” Fed.R.Civ.P.
23(b)(2). A court may certify a 23(b)(2) class and
23(b)(3) class separately. In re ConAgra Foods,
Inc., 302 F.R.D. 537, 573 (C.D. Cal. 2014)
(“Ninth Circuit precedent indicates that the court
can separately certify an injunctive relief class and
if appropriate, also certify a Rule 23(b)(3)
damages class”).
B. Daubert
Federal Rule of Evidence 702 requires that a
witness proffered as an expert by a party be
qualified by “knowledge, skill, experience,
training, or education.” Fed.R.Evid. 702. Even if a
witness is qualified as an expert in a particular
field, any scientific, technical, or specialized
testimony is admissible only if it (a) “will help the
trier of fact to understand the evidence or to
determine a fact in issue,” (b) “is based upon
sufficient facts or data,” (c) “is the product of
reliable principles and methods,” and (d) “the
expert has reliably applied the principles and
methods to the facts of the case.” Id.
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Irrelevant or unreliable testimony is prohibited
under Rule 702. Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 589 (1993). Expert opinions
are relevant if the knowledge underlying them has
a “valid connection to the pertinent inquiry.”
United States v. Sandoval-Mendoza, 472 F.3d 645,
654 (9th Cir. 2006) (internal quotation marks and
alteration omitted). “Expert testimony *5 which
does not relate to any issue in the case is not
relevant and, ergo, non-helpful.” Daubert, 509
U.S. at 590. Expert opinion testimony is reliable if
such knowledge has a “basis in the knowledge and
experience of [the relevant] discipline.” Id. at 592.
Under Daubert, courts should consider the
following factors when evaluating whether an
expert's proposed testimony is reliable: (1)
“whether a theory or technique . . . can be (and has
been) tested,” (2) “whether the theory or technique
has been subjected to peer review and
publication[,]” (3) the known or potential error
rate of the particular scientific theory or technique,
and (4) the degree to which the scientific
technique or theory is accepted in a relevant
scientific community. Id. at 593-94. This list is not
exhaustive, however, and the standard is flexible.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151
(1999). The Daubert inquiry “applies not only to
testimony based on ‘scientific' knowledge, but
also to testimony based on ‘technical' and ‘other
specialized' knowledge.” Id. at 141.
The court's task is not to “decid[e] whether the
expert is right or wrong, just whether his
testimony has substance such that it would be
helpful to a jury.” Alaska Rent-A-Car, Inc. v. Avis
Budget Grp., Inc., 738 F.3d 960, 969-70 (9th Cir.
2013). Courts may not exclude testimony simply
because it is impeachable. Id. at 969. “Vigorous
cross-examination, presentation of contrary
evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of
attacking shaky but admissible evidence.”
Daubert, 509 U.S. at 596. The focus of the inquiry
is thus on the principles and methodology
employed, not the conclusions reached by the
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