Rodriguez v. Google LLC

Background

This order concerns competing motions under Federal Rule of Evidence 702 and the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. to limit or exclude expert testimony before trial. The case is a privacy class action brought by mobile-device users who had certain privacy-related settings turned off in their Google accounts. The active claims include invasion of privacy under the California Constitution, common-law intrusion upon seclusion, and violation of the California Computer Data Access and Fraud Act.

Google challenged most of plaintiffs’ expert Bruce Schneier’s opinions. Plaintiffs challenged parts of Google experts Donna Hoffman, John Black, and Christopher Knittel’s opinions. Rule 702 permits expert testimony when the witness is qualified and the testimony will help the factfinder, rests on sufficient facts, uses reliable principles and methods, and applies those methods reliably.

Schneier’s Testimony

The court denied Google’s challenge to Schneier’s general background opinions about data, privacy, internet tracking, and the possible consequences of misuse of user data. The court concluded that this testimony could provide context for the case.

The court excluded some opinions about Google’s intent or state of mind, including Schneier’s opinions that Google was more concerned with managing users’ impressions than respecting privacy and that Google’s privacy efforts primarily sought to build user trust rather than provide protection. The court allowed other opinions about Google’s services when they were tied to relevant case documents or discovery.

The court allowed Schneier to testify about “dark patterns”—design features that may influence or mislead users—and whether disclosures might indicate them. But he may not testify that Google used dark patterns to manipulate user behavior for its own benefit, because that would improperly draw the ultimate inference for the jury. The court also excluded several opinions about what consumers understand or expect from Google’s disclosures and privacy settings, finding that those opinions went beyond Schneier’s expertise and lacked a reliable methodology.

Google’s motion was granted as to paragraphs 3, 68, 83, 89, 142–147, 236, 263, and 398–399 of Schneier’s report, and denied in all other respects.

Hoffman’s Testimony

Plaintiffs’ motion was granted in part and denied in part concerning Hoffman’s opinions about intent. The court excluded opinions that Google was not trying to deceive or manipulate users, that Google’s data collection was motivated by improving user experience, that Google intended to give users meaningful choices about privacy settings, and that certain disclosures were not intended to communicate a particular limitation of the settings. The court allowed other challenged statements that did not address the specific intent question for the jury.

The court did not exclude Hoffman’s rebuttal testimony about users having different privacy views or about whether the named plaintiffs’ testimony could be generalized to the class. However, Google was ordered not to use the phrase “representative user” in that testimony and was required to avoid testimony that conflicted with jury instructions about class-wide issues.

The court denied plaintiffs’ challenge to Hoffman’s opinions about whether Google’s disclosures were accurate, clear, or explained the function of the settings, as well as her opinion about Google’s chief executive’s testimony to Congress. The court noted that objections could be raised if her testimony went beyond her marketing expertise.

Black’s Testimony

The court denied plaintiffs’ motion concerning Black’s opinion that Google’s privacy-and-terms “key terms” section defined “Google Account.” The court said the meaning of that definition was for the jury and that challenges to the basis for Black’s opinion could be addressed through cross-examination and competing evidence.

The court also denied plaintiffs’ challenge to Black’s testimony about whether Google intercepted communications when supplemental Web App and Activity settings were turned off. Although statutory claims requiring proof of interception had been dismissed, the court found that the concept remained relevant to the surviving claims’ theory that Google tracked and intercepted communications without authorization.

Knittel’s Testimony

The court allowed Knittel, as a rebuttal expert, to identify flaws in plaintiffs’ damages expert’s “but-for” model—the estimate of what would have happened without the alleged conduct. Knittel could not argue for a specific deduction from damages because his report did not measure what users would have done if Google had provided adequate disclosures.

The court excluded Knittel’s opinion that Google might have generated advertising revenue from users whose settings were turned off even without collecting their data. The court found that opinion speculative because it lacked a method for measuring the alternative advertising approach or a resulting damages deduction.

Disposition

Google’s motion to exclude certain parts of Schneier’s testimony was granted in part and denied in part as described above. Plaintiffs’ motion was granted only as to paragraphs 32, 116, 132, and 153, table 8, of Hoffman’s report and the two challenged Knittel opinions; it was otherwise denied. The order was signed by Chief United States District Judge Richard Seeborg on June 2, 2025.