In this putative class action, Plaintiff Charles Therrien claimed that Defendant Hearst Television, Inc. (HTV or Hearst), unlawfully disclosed his personally identifiable information – including a record of every video he had viewed on Hearst’s Apps – to two third parties, Braze and Google, in violation of the Video Privacy Protection Act.
HTV argued that its news and weather apps share only specific data with its vendors, Braze and Google Ad Manager (“GAM”), limited by each user’s
permissions. None of those data points identify a specific person as having requested a specific, prerecorded video. HTV’s separate video identifier value is never shared. Nor is there any evidence that HTV knew that the data it did share could identify a user, let alone connect a user to specific video content, as required to be deemed personally identifying information under the Video Privacy Protection Act.
Hearst filed a motion to strike the expert testimony of Dr. Narseo Vallina-Rodriguez for all purposes pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Hearst also moved to strike the allegedly untimely expert report of Dr. Jason Polakis.
Computer Science Expert Witnesses
Narseo Vallina-Rodriguez has considerable experience in the fields of mobile platforms and application analysis, computer network analysis and measurement, and mobile privacy and security risks. His 15-year career in these fields includes his work at the International Computer Science Institute at University of California, Berkeley, analyzing mobile applications’ privacy and security practices, and his work at AppCensus Inc., analyzing Android users’ geolocation data and unique identifiers – along with his education – which includes a M.Sc. in Telecommunications Engineering from the University of Ovideo and a PhD in Computer Science from the University of Cambridge.
Jason Polakis has focused on understanding the security and privacy limitations of Internet technologies and mobile systems, and designing fully automated auditing frameworks and robust defenses. His work has revealed significant flaws in popular web services and browsers, and major vendors have deployed his proposed defenses, leading to concrete security and privacy benefits for billions of users.
Discussion by the Court
In Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998), it was held that “Daubert does not require that a party who proffers expert testimony carry the burden of proving to the judge that the expert’s assessment of the situation is correct . . . . In short, Daubert neither requires nor empowers trial courts to determine which of several competing theories has the best provenance. It demands only that the proponent of the evidence show that the expert’s conclusion has been arrived at in a scientifically sound and methodologically reliable fashion.”
Narseo Vallina-Rodriguez
To begin with, Hearst argued that Vallina-Rodriguez’s testimony should be stricken as it is based on an unreliable methodology.
In forming his opinion that the disclosure of App users’ email addresses, geolocation, and AAIDs (Mobile Advertising IDs) was reasonably and foreseeably likely to reveal their identities to Braze and Google, the Court held that Vallina-Rodriguez relied on a systematic literature survey of various peer-reviewed empirical studies that include data aggregations similar to those in this case, e.g., timestamped geolocation data points collected by GPS sensors on cell phones.
The idea that individuals are likely to be identified and de-anonymized by cross-referencing external data sources against frequented locations is a conclusion accepted within the data privacy research community.
Although, as HTV points out, Vallina-Rodriguez has not conducted an empirical analysis involving Therrien personally, he was given access to only a single datapoint, which was the last known geolocation coordinate of Therrien. Moreover, Vallina-Rodriguez did not analyze the 78 points of geolocation data for former named Plaintiff Michele Saunders because he was not attempting to identify her.
The Court held that Hearst’s challenges to Vallina-Rodriguez’s testimony, at best, addressed the weight of the evidence as opposed to its admissibility. To the extent Vallina-Rodriguez’s opinions constitute legal conclusions or are based on insufficient anecdotal evidence, they may be subject to a proper motion in limine or appropriate objection at trial.
Jason Polakis
When considering whether to strike an untimely expert report, the Court may consider various factors: (1) the history of the litigation; (2) the sanctioned party’s need for the precluded evidence; (3) the sanctioned party’s justification (or lack of one) for its late disclosure; (4) the opponent-party’s ability to overcome the late disclosure’s adverse effects (e.g., the surprise and prejudice associated with the late disclosure); and (5) the late disclosure’s impact on the district court’s docket.
On Friday, December 6, 2024 at 5:31 pm, Plaintiffs’ counsel emailed Hearst’s counsel an expert report from Polakis, who had not previously been identified by the Plaintiff.
The scheduling order entered by the Court in this case made it clear, as recently as May 0f 2024, that Plaintiff’s expert reports were due on October 18, 2024, and that all expert discovery was to be completed by December 6, 2024.
However, Therrien failed to disclose Polakis or his expert report within this Court’s discovery deadlines and offered no reason as to why he could not have identified him earlier and provided his report in a timely manner. In other words, the Court did not accept Therrien’s lame characterization of the report as a “rebuttal” and made particular note of the fact that there was no effort on Plaintiff’s part to seek an amendment extending the Court’s discovery schedule and its deadlines.
Moreover, Rule 26 provides a schedule for a rebuttal report only in the absence of a scheduling order (which is not the case here).
In conclusion, to permit Therrien to ambush the Defendant with a previously undisclosed expert report of a previously unidentified witness would “undermine the purpose of setting deadlines for expert disclosures; those deadlines must have some force if the courts are to be able to manage their dockets in any meaningful way.”
Held
The Court denied Hearst’s motion to strike the testimony of Dr. Narseo Vallina-Rodriguez but allowed the motion to strike the report of Dr. Jason Polakis.
Key Takeaway:
- Vallina-Rodriguez’s testimony was based on a reliable methodology because he relied on a systematic literature survey of various peer-reviewed empirical studies that include data aggregations similar to those in this case, e.g., timestamped geolocation data points collected by GPS sensors on cell phones.
- Therrien failed to disclose Polakis or his expert report within this Court’s discovery deadlines and offered no reason as to why he could not have identified him earlier and provided his report in a timely manner. The Court did not accept Therrien’s lame characterization of the report as a “rebuttal” and made particular note of the fact that there was no effort on Plaintiff’s part to seek an amendment extending the Court’s discovery schedule and its deadlines.
Case Details:
| Case Caption: | Therrien V. Hearst Television |
| Docket Number: | 1:23cv10998 |
| Court: | United States District Court, Massachusetts |
| Order Date: | February 14, 2025 |
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