Dunstan et al v. comScore, Inc.

Filing 10

RESPONSE by comScore, Inc.in Opposition to MOTION by Plaintiff Mike Harris for discovery 6 (Hudson, Leonard)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
MIKE HARRIS and JEFF DUNSTAN,
Individually and on behalf of a class of
similarly Situated individuals,
Plaintiff,
v.
COMSCORE, INC., a Delaware corporation,
Defendant.

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) Case No. 1:11-5807
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) Hon. James F. Holderman
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COMSCORE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’
MOTION FOR LEAVE TO CONDUCT EXPEDITED DISCOVERY

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I.

INTRODUCTION
As an initial matter, Plaintiffs’ Motion for Leave to Conduct Expedited Discovery

(hereinafter “Motion”) should be denied because Plaintiffs’ contractual agreement with
comScore Inc. (“comScore”) precludes them from pursuing their claims in this forum. As
explained in comScore’s concurrently filed Motion to Dismiss or, in the Alternative, to Transfer
Venue under 28 U.S.C. § 1404(a) (hereinafter “Venue Motion”), Plaintiffs are subject to a
mandatory forum selection clause that designates the courts of Virginia as the exclusive forum
for Plaintiffs’ claims. Simply put, Plaintiffs filed this action in the improper court. It would put
the cart before the horse to address a request for expedited discovery before the potentially
dispositive issues in comScore’s Venue Motion are resolved.
Even if the Court were to address the discovery motion on the merits, Plaintiffs have
failed to justify the sweeping requests they seek to impose. Plaintiffs claim their requests are
“narrowly tailored” and “extremely limited” in scope, but the proposed discovery at issue would
compel comScore to disclose all of its current, former, and prospective customers for the express
purpose of allowing Plaintiffs to serve subpoenas on every single entity comScore does, or might
do business with. Plaintiffs make little effort to meet the heightened burden needed to justify
this extraordinary request.

Instead, they state in conclusory terms that some unidentified

evidence in the possession of some unidentified third-parties could possibly be destroyed. This
unsupported speculation falls far short of meeting Plaintiffs’ burden.
In any case, Plaintiffs’ purported concerns regarding the preservation of evidence are
already resolved, as it is comScore’s regular practice to retain and preserve all source data it
provides to its customers. In addition to comScore’s regular retention and preservation practices,
it took specific action with respect to this lawsuit by implementing a litigation hold, which is
currently in place.

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For all these reasons, comScore respectfully requests that the Court deny Plaintiffs’
Motion or, in the alternative, continue the hearing on this Motion until after the Court rules on
comScore’s pending Venue Motion.
II.

ARGUMENT
A.

Plaintiffs’ Motion Should Not Be Considered Because They Filed This Case
In The Improper Forum.

As discussed in comScore’s Venue Motion, Plaintiffs are subject to a mandatory forum
selection clause that designates certain courts in Virginia as the exclusive forum for their claims.
Asking the Court to consider an expedited discovery motion at this juncture would result in a
tremendous waste of judicial recourses, given the likelihood that the case will be dismissed, or
transferred, on venue grounds. Allowing Plaintiffs to initiate the wheels of discovery, and
empowering them with the unfettered ability to serve third party subpoenas, would cause
unwarranted prejudice to comScore when the Venue Motion raising potentially dispositive issues
remains pending. In re African-American Slave Descendants’ Litigation, No. 1491, 02 C 7764,
2003 WL 24085346, at *2 (N.D. Ill. July 15, 2003) (motion seeking order to preserve evidence
rejected, in part, because its timing “would place a great burden on the Defendants before they
can even test the legal sufficiency of Plaintiffs’ Consolidated Amended Complaint.”).
B.

Plaintiffs’ request for expedited discovery fails on the merits

As courts in this District have recognized,“[e]xpedited discovery is not the norm.
Plaintiff must make some prima facie showing of the need for the expedited discovery.” Merrill
Lynch, Pierce, Fenner & Smith v. O’Connor, 194 F.R.D. 618, 623 (N.D. Ill. 2000) (emphasis in
original); see also Lamar v. Hammel, No. 08-02-MJR-CJP, 2008 WL 370697, at *2 (S.D. Ill.
2008) (“while the court has discretion to permit discovery outside the timing prescribed by Rule
26(d)(1), ‘only the most obviously compelling reasons are sufficient to justify a departure from
the rule.’”) (quotation and citation omitted). In determining whether a plaintiff has met its
burden to pursue expedited discovery, some courts have required a showing that irreparable harm
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would result absent the discovery requested. Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y.
1982). Other courts require a showing that expedited discovery is “necessary” and that the
potential harm to plaintiffs outweighs the prejudice to the responding party if discovery is
expedited. Vance v. Rumsfeld, No. 06 C 6964, 2007 WL 4557812, at *5-6 (N.D. Ill. 2007).
Here, Plaintiffs fail to meet their burden under any standard.
The thrust of Plaintiffs’ Motion is that early discovery is needed to ensure that
comScore’s current, former, and future customers preserve potentially relevant evidence.1
Paying lip service to the applicable burden of proof, Plaintiffs state in conclusory terms that the
potential destruction of relevant evidence would constitute “immediate and irreversible” and
“irreparable” harm. (Mem. P. & A., at 2, 6). But other than speculating about these risks,
Plaintiffs fail to show that there actually are any such risks here. Plaintiffs make no attempt to
explain what evidence they believe comScore’s customers might possess, why they fear its
destruction, or how the hypothetical evidence might affect their claims.
In any event, Plaintiffs’ purported concern is easily assuaged because, as a regular
business practice, comScore retains and preserves all of the data that it uses to generate customer
reports. (Declaration of John O’Toole, attached hereto as Exhibit “1” [hereinafter “O’Toole
Decl.”], ¶ 3). In addition to comScore’s regular retention and preservation practices, it has
already implemented a litigation hold to further ensure the preservation of potentially relevant
data. Id. Consequently, there is no material risk that any such evidence will be destroyed,
obviating Plaintiffs’ only stated “need” for expedited discovery.

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Although Plaintiffs frame their Motion as a request for leave to conduct expedited discovery, they only advance
one reason for purportedly needing expedited discovery – to ensure that evidence is preserved. What Plaintiffs seek,
in effect, is a preservation order. However, “‘[a] motion to preserve evidence is an injunctive remedy and should
issue only upon an adequate showing that equitable relief is warranted.’” In re African-American Slave
Descendants’ Litigation, No. 1491, 02 C 7764, 2003 WL 24085346, at *2 (N.D. Ill. July 15, 2003) (citations
omitted). A plaintiff seeking such an order must: (1) demonstrate that the subject of the order will destroy
necessary documentation without a preservation order; (2) show that they will suffer irreparable harm if a
preservation order is not entered; and (3) show that their need for a preservation order outweighs the burdens it
would impose on those subject to the order. Id. at *2-*4. As noted above, and discussed below, Plaintiffs have
failed to make the threshold showing for any of these criteria.

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Plaintiffs further contend that expedited discovery may be needed in connection with a
future preliminary injunction motion. (Mem. P. & A., at 4 (“Plaintiff seeks limited, expedited
discovery . . . in order to . . . evaluate whether Plaintiff needs to seek a preliminary injunction to
protect the interests of the putative class”)); Momenta Pharmaceuticals, Inc. v. Teva
Pharmaceuticals Industries Ltd., No. 10-12079-NMG, 2011 WL 673926, *2-*3 (D. Mass Feb.
18, 2011) (rejecting argument that plaintiff needed expedited discovery “in order to decide
whether to move for a preliminary injunction” and noting that “[t]he majority of courts have held
[] that the fact that there was no pending preliminary injunction motion weighed against allowing
plaintiff's motion for expedited discovery.”). This not only shows that expedited discovery is
unnecessary, but also shows that Plaintiffs currently have no reason to believe they or the
putative class need a preliminary injunction, or are otherwise in danger of any imminent or
irreparable harm. Plaintiffs have clearly not suffered any such harm themselves, or they would
have already brought a preliminary injunction motion.
Finally, any claim of an exigent need for discovery is belied by Plaintiffs’ own conduct.
Plaintiffs first brought their potential claims to comScore’s attention in April 2011, yet waited
until August 23, 2011, more than five months later, to file their Complaint. Plaintiffs waited
another 21 days before bringing the instant Motion. Clearly, Plaintiffs would not have sat on this
Motion for six months if they were truly concerned about imminent harm. See, e.g., Gidatex,
S.r.L. v. Campaniello Imports, Ltd., 13 F.Supp.2d 417, 419 (S.D.N.Y. 1998) (“courts typically
decline to grant preliminary injunctions in the face of unexplained delays of more than two
months”); Protech Diamond Tools, Inc. v. Liao, No. C 08-3684 SBA, 2009 WL 1626587, at *6
(N.D. Cal. June 8, 2009).
C.

Plaintiffs’ proposed discovery is prejudicial to comScore.

Plaintiffs seek to paint their discovery requests as “limited” and innocuous when they are
anything but. Plaintiffs’ proposed discovery would require comScore to identify all of its current
and former customers, and any and all employees of such customers who “ha[ve] or had” access
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to information comScore provided the customer.2

(Mem. P. & A., Exh. A, Proposed

Interrogatory No. 1). Plaintiffs additionally seek to pry into comScore’s potential business
relationships by asking comScore to identify any business prospects to whom it “intends” to
provide consumer data, including employees of those prospects. Id., at Proposed Interrogatory
No. 2. Whether or not it is their intent, Plaintiffs’ sweeping discovery requests appears to be
aimed more towards intruding upon comScore’s customer relationships than to serving any
legitimate evidentiary concerns.3
Plaintiffs’ request is also prejudicial because it seeks entirely open-ended authority to
issue third party subpoenas. Plaintiffs make no attempt to explain, or circumscribe, the scope of
the subpoenas they seek permission to issue. Indeed, Plaintiffs make no bones about their
intention to serve subpoenas on “all” of the current, former, and prospective customers comScore
identifies. (Mem. P. & A., at 7.)

Plaintiffs’ requests thus raise the very real possibility that

comScore will have to address an unknown, but admittedly large, number of subpoenas to
prevent the disclosure of confidential or trade secret information, or information that implicates
the privacy rights of third parties. There is no reason why comScore should have to waste its
resources, or the resources of this Court, litigating over such subpoenas in the shadow of an
impending dismissal for improper venue
Plaintiffs’ request is further prejudicial because it not only asks for expedited discovery,
but also seeks to compel comScore to respond to that discovery within fourteen days. (Mem. P.
& A., at 7.) This is less than half of the response time prescribed by the Federal Rules. FRCP
33(b)(2). Plaintiffs fail to address this additional request in their moving papers and, instead,
first mention it in the order they request from the Court. (Mem. P. & A., at 7.)

2

Plaintiffs limit their request to August 23, 2009, to the present. (Mem. P. & A., Exh. A, at 4).
Moreover, comScore’s customer list, and information concerning comScore’s future business prospects, is highly
proprietary, and comScore has no reason to believe it would be treated as such by Plaintiffs absent a protective
order, which the parties do not have in place.
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For these reasons, the balance of factors weighs against expedited discovery. Plaintiffs
have not demonstrated any need, much less shown any exigency, to justify expedited discovery,
and their decision to wait six months before filing this Motion only reinforces the point.
D.

Plaintiffs’ authorities do not support their position.

None of the cases Plaintiffs cite support their position. In the first case, Vance, the
plaintiffs, American citizens who had been detained by the military, sought expedited discovery
“to determine the identities of the unknown individuals responsible for their arrest, interrogation,
mistreatment, and detention.” 2007 WL 4557812, at *3. Plaintiffs needed this information on an
expedited basis so they could name these individuals as defendants before the statute of
limitations expired. Id. At the hearing, the Judge ordered the United States (the defendant), to
conduct an inquiry into the identity of these individuals. Id. Nearly a year elapsed, and the
United States had still not provided plaintiffs with the information sought. Id. Plaintiffs thus
refiled their expedited discovery motion on the grounds that “delaying discovery would cause
them irreparable harm because of the looming statute of limitations deadline.” Id. at *5. The
court granted the request based on the particular timing circumstances of that case. Id. at *5.
Cleary, Vance turned on exigencies not present here, and involved a unique situation where more
than a year had elapsed since plaintiffs filed their complaint, yet discovery had still not
commenced.
Plaintiffs next cite Ervine v. S.B., No. 11 C 1187, 2011 WL 867336, at *1 (N.D. Ill.
2011). In that case, plaintiff alleged he had been defamed by certain web postings, and sued
three individuals by their initials, rather than their full names. Id. After reviewing the complaint,
this Court requested that plaintiff either identify the defendants by their actual names, or explain
why only abbreviations were used. Id. In response to the Court’s request, plaintiff explained
that he did not know the identity of the defendants because they only used initials to identify
themselves on their web postings. Id. Thereafter, plaintiff filed a motion for limited discovery
“for purposes of identifying the Defendants. Specifically, Ervine requests leave of the court to
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issue subpoenas to the website-hosting companies and related third parties to obtain ‘information
that would tend to identify the Defendant[s] . . .’” Id. at * 2 (brackets in original) (emphasis
added). This court granted the motion “for purposes of identifying the Defendants.” Id.
Ervine is materially distinguishable, as it focused on the district court’s authority to
permit a plaintiff who is “ignorant of the defendants’ true identity” to obtain their identity
through discovery.

Ervine, 2011 WL 867336, at *1-2.

Plaintiffs’ requests here, seeking

disclosure of all of comScore’s current and potential customers, bears no resemblance to the
limited discovery permitted in Ervine.
Plaintiffs also cite O’Connor, 194 F.R.D. at 623, but in that case, the court denied the
plaintiffs’ request for expedited discovery altogether, finding that it was made in bad faith.
Plaintiffs cite four additional cases from outside of Illinois, none of which is binding on
this Court, and none of which help Plaintiffs. Sheridan v. Oak Street Mortgage, LLC, 244 F.R.D.
520, 521 (E.D. Wis. 2007) (allowing discovery prior to a Rule (26)(f) conference because
defendant “has defaulted, has not entered an appearance in this action, and there is no known
authorized representative with whom to confer pursuant to Rule 26(f).”); Interscope Records v.
Does 1-14, No. 5:07:-4107-RDR, 2007 WL 2900210, at *1 (D. Kansas 2007) (granting expedited
discovery so plaintiffs could determine identities of Doe defendants in copyright infringement
case); Ellsworth Associates, Inc. v. United States, 917 F.Supp. 841, 844 (D.D.C. 1996) (granting
expedited discovery because it “would expedite resolution of [plaintiff’s] claims for injunctive
relief”); Pod-Ners, LLC v. Northern Feed & Bean of Lucerne LTD. Liability Co., 204 F.R.D.
675, 676 (D. Colo. 2002) (allowing for inspection, sampling, and testing of agricultural
“commodity” prior to Rule 26(f) conference because commodity was “subject to sale, resale, and
consumption or use with the passage of time . . . Further passage of time under the unique facts
of this case makes discovery concerning the beans and plants unusually difficult or
impossible.”).
These cases reinforce that, absent highly unusual circumstances, expedited discovery is
traditionally reserved for cases where a preliminary injunction is pending, where the identity of
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Doe or other unidentified defendants needs to be ascertained, or in cases involving claims of
copyright, trademark, or patent infringement. See, e.g., Momenta Pharmaceuticals, 2011 WL
673926, at *2-*3 (expedited discovery not indicated in the absence of a pending preliminary
injunction motion); Edudata Corp. v. Scientific Computers, Inc., 599 F.Supp. 1084, 1088 (D.
Minn. 1984) (expedited discovery allowed because further development of record before
preliminary injunction hearing would better enable the court to judge the parties’ interests and
respective chances for success on the merits).

The case at bar presents none of these

circumstances, and Plaintiffs have failed to show any other highly unusual circumstances that
would justify expedited discovery in this case.
III.

CONCLUSION
For all the foregoing reasons, comScore respectfully requests that the Court decline

Plaintiffs’ Motion.
Dated: September 28, 2011
Respectfully submitted,
COMSCORE, INC.

By: /s/ Leonard E. Hudson
One of Its Attorneys

Of counsel (pro hac vice applications pending):
Michael G. Rhodes, [e-mail]
Whitty Somvichian, [e-mail]
Ray Sardo, [e-mail]
COOLEY LLP
101 California Street, 5th Floor
San Francisco, California 94111
Local counsel
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David Z. Smith (ARDC #6256687)
Leonard E. Hudson (ARDC # 6293044)
REED SMITH LLP
10 South Wacker Drive
Chicago, IL 60606-7507
Telephone: [phone]
Facsimile: [phone]

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CERTIFICATE OF SERVICE
The undersigned attorney certifies that he or she caused a copy of the foregoing document to be
served on counsel listed below via the Court’s CM/ECF online filing system this 28th day of
September, 2011.
/s/ Leonard E. Hudson
Attorney for Defendant comScore, Inc.

TO:
Steven W. Teppler
William C. Gray
Ari J. Scharg
EDELSON MCGUIRE LLC
350 North LaSalle Street, Suite 1300
Chicago, Illinois 60654
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
MIKE HARRIS and the Putative Class

US_ACTIVE-107381899.1-LEHUDSON 9/28/11 9:52 AM