Dunstan et al v. comScore, Inc.

Filing 104

MOTION by Plaintiffs Jeff Dunstan, Mike Harris to compel comScore to Respond to Written Discovery (Attachments: # 1 Exhibit 1 - Plaintiff Harris' First Set of Interrogatories, # 2 Exhibit 2 - Plaintiff Harris' First Request for Documents, # 3 Exhibit 3 - Declaration of Chandler Givens, # 4 Exhibit 4 - Transcript of Proceedings (April 17, 2012), # 5 Exhibit 5 - comScore's Responses to First Document Request, # 6 Exhibit 6 - Defendant comScore's Answers to Interrogatories, # 7 Exhibit 7 - Defendant comScore's Supplemental Answers to Interrogatories, # 8 Exhibit 7-A - Dialogue Boxes, # 9 Exhibit 8 - Email of April 27, 2012)(Balabanian, Rafey)

EXHIBIT 4

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TRANSCRIBED FROM DIGITAL RECORDING

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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JEFF DUNSTAN, individually and on
behalf of a class of similarly
situated individuals; and MIKE
HARRIS,
Plaintiffs,
vs.
COMSCORE, INC., a Delaware
corporation,

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Defendant.

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No. 11 C 5807
Chicago, Illinois
April 17, 2012
11:11 A.M.

TRANSCRIPT OF PROCEEDINGS - Status
BEFORE THE HONORABLE YOUNG B. KIM, Magistrate Judge
APPEARANCES:
For the Plaintiffs:

EDELSON McGUIRE, LLC
350 North LaSalle Street, Suite 1300
Chicago, Illinois 60654
BY: MR. CHANDLER RANDOLPH GIVENS

For the Defendant:

QUINN EMANUEL URQUHART
& SULLIVAN, LLP
500 West Madison Street, Suite 2450
Chicago, Illinois 60606
BY: MR. ANDREW H. SCHAPIRO

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STACK & O'CONNOR CHARTERED
140 South Dearborn Street, Suite 411
Chicago, Illinois 60603
BY: MR. PAUL F. STACK
PAMELA S. WARREN, CSR, RPR
Official Court Reporter
219 South Dearborn Street, Room 1928
Chicago, Illinois 60604
[phone]
NOTE: Please notify of correct speaker identification.
FAILURE TO SPEAK DIRECTLY INTO THE MICROPHONE MAKES PORTIONS
UNINTELLIGIBLE.

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(Proceedings held in open court:)
THE CLERK: 11 C 5807, Harris, et al., versus
comScore, Inc.
MR. SCHAPIRO: Andrew Schapiro for comScore,
defendants.
MR. GIVENS: Good morning, your Honor. Chandler
Givens on behalf of plaintiffs.
MR. STACK: Good morning, your Honor. Paul Stack for
the defendant.

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THE COURT: I'm sorry, say that one more time. Mr.?

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MR. GIVENS: Chandler Givens.

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THE COURT: Givens.

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Okay.

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MR. SCHAPIRO: Your Honor, since we were last here,

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comScore has completed its document production. We have turned

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over to the plaintiffs more than 8700 documents. If you

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printed it all out, it would run to more than a million pages

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because some of them are lengthy.

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In consultation with the plaintiffs, we produced a

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number of them in what's called native form, electronic form

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for them.

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You'll also recall that when we were last here the

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plaintiffs had raised an issue about what's called the mac

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source code.

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THE COURT: Right.

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MR. SCHAPIRO: And they said that they -- their expert

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said that there had been eight builds. We produced the eight

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builds of the mac source code to the plaintiffs.

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THE COURT: Okay.

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MR. SCHAPIRO: We had a meet and confer about our

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interrogatory answers because the plaintiffs had some

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complaints about our interrogatory answers, so we provided them

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with a set of supplemental interrogatory answers that we

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believe are sufficient and satisfactory. Actually it went a

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little beyond what we thought was necessary, but that's what we

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provided them with.

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We have received a production just last week from the

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plaintiffs in response to our discovery requests, and we have

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just started going through it. But on first glance I think it

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is possible that we will seen be before your Honor on a motion

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of some sort. But first we want to meet and confer with them.

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They have given us a total of 558 pages. Two hundred

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of those pages are our own quarterly report. It also includes

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rule -- the text of Rule 23, the legislative history.

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There doesn't seem to be a whole lot in there. And

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there is some requests that we made that we think weren't

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responded to. But we may be able to work it out in a meet and

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confer.

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One issue that I wanted to flag for the Court, that is
probably one we're not going to be able to work in a meet and

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confer, but hopes spring eternal, is that we have asked to

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inspect the computers of the two named plaintiffs in this

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case. And we were told that one of the named plaintiffs threw

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his computer away and doesn't have it anymore. And the other

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one they are -- they are refusing to let us inspect.

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Maybe we can work that out. If -- if not, we think it

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is a problem, and we're likely to be before you. But we would

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want to marshal our authorities before we do that.

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THE COURT: As I recall the allegation is that either

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Dunstan or Mr. Harris had to buy a program to have the -- you

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know, whatever that was downloaded, removed. So I'm not

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sure -- I guess I'm limited in that regard exactly what the

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forensic analyst is able to in fact conclude from an inspection

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as to whether this particular program that was downloaded did

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in fact interfere with other programs.

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MR. SCHAPIRO: At the threshold, your Honor, we don't

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even know that these -- that these individuals ever downloaded

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our software. We have no record that they did.

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And so if you imagine a class action in which someone

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came and said, I was an AT&T customer and they overbilled me,

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you at least need to show they used AT&T.

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THE COURT: But I think that if -- if at some point

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that this has to be briefed, at a minimum I think that I would

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like to see from a forensic analyst what he or she is able to

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in fact discover from reviewing a computer.

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MR. SCHAPIRO: That's a good point.

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THE COURT: You know, can he or she confirm that this

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particular computer did not in fact download the program at

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issue.

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If the conclusion is that he can't verify, he can't
confirm, that has no weight at all.
MR. SCHAPIRO: That makes perfect sense, your Honor.

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So we will, if we do end up having to move on it, we will offer

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a proffer saying -- of saying what we think an expert would be

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able to determine and why it would be relevant.

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There is one issue -- there may be others that

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Mr. Givens raises. There is one outstanding issue, and I don't

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know whether the plaintiffs are likely to make a motion on this

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or not. It came up at a meet and confer that we had.

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The one discovery request of theirs that -- as to

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which we have not provided an interrogatory response or

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documents because we think it does not fall under the terms of

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your Honor's order bifurcating between class --

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THE COURT: Yes.

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MR. SCHAPIRO: -- and merits discovery has to do with

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their request to learn the number of complaints that comScore

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has received from the public or from panelists and in a

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document request the text of such complaints.

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THE COURT: I have to go back to my order. I don't
remember that specifically.

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MR. SCHAPIRO: That was one on which earlier -- prior

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counsel Cooley Godward had agreed in preliminary negotiations

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with the plaintiffs is that --

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THE COURT: So I didn't deal with it.

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MR. SCHAPIRO: -- we'll produce it, so your Honor

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didn't address it.

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THE COURT: Okay.

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MR. SCHAPIRO: We have looked at it, especially in the

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context of the order, but also there is some burden issues that

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frankly we weren't aware of earlier until we dug a little more

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deeply into how the company works. And one of the burden

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issues there is that there are many communications back and

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forth between panelists and the companies. People saying, you

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know, I'd like it if you offered a different kind of -- a

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premium for answering -- filling out surveys. Or I didn't gut

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get my points on time. Or where should I look for blah, blah,

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blah?

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So even determining what qualifies as a complaint is

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going to require someone, probably a lawyer, to look through a

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very large number of communications. Because they are not

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filed by type of communication --

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THE COURT: Okay.

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MR. SCHAPIRO: -- they are just communications.

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But we don't -- we -- it may come to it. It may turn

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out that that's relevant at the merit stage. But our belief

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now is that, in any event, it is not relevant for class cert,

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and so we don't think we should (unintelligible) with that

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burden.

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THE COURT: So what you are saying is that you agreed

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to produce this stuff thinking that it wasn't going to be that

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big of a deal, and it turns out that it is a big deal. So now

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you would like to raise the objection that it really isn't

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relevant to the class discovery.

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MR. SCHAPIRO: Precisely.

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THE COURT: Okay.

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And Mr. Givens --

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MR. GIVENS: Your Honor, if I may.

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THE COURT: -- anything you wish to add?

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MR. GIVENS: I can respond to a few of Mr. Schapiro's

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points here.

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THE COURT: Okay.

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MR. GIVENS: First off, there are some deficiencies in

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defendant's production that we wanted to raise with the Court

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right away. One is that they did produce a million documents

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this past Friday, or over a million if you printed them out,

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although we haven't printed them yet, but we will.

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However, they haven't identified which Bates numbers

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are responsive to which requests. So we're left with what

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effectively is a million pages, and we're just sifting through

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without knowing what responds to which requests.

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The second point is Interrogatory Number 8, which we

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met and conferred about last week, we have another meet and

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confer scheduled for this week, but if we're not able to -- to

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resolve that issue between the parties, we wanted to say that

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the reason that we propounded that interrogatory was because we

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were looking to see whether or not panelists have been

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complaining about the software being on their computers and

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them not knowing about it.

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So comScore is purporting that they are obtaining

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meaningful consent from consumers. But we also know for a fact

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that they don't have a full record of all the different types

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of terms of service displayed for different users. So it would

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be helpful for us, to guide us in the right direction, to see

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if a user is saying, hey, look, I never agreed to this, what is

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the software on my computer, comScore, to then be able to go

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examine and to test the veracity of whether or not consent was

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obtained through those different pieces of software, if that

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makes sense to your Honor.

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THE COURT: Well, you know better -- you know about

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this case better than I do. I don't really understand that

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point.

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MR. GIVENS: It may be easiest to lay out in the
papers, your Honor.

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THE COURT: All right. Maybe, but -- I don't want to

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lose -- all right. Let's do this. You have a meet and confer

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scheduled for this week. And that meet and confer meeting is

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designed to discuss all outstanding issues?

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MR. GIVENS: Yes, your Honor.

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MR. SCHAPIRO: Yes.

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THE COURT: I mean, on the one hand I want to move as

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quickly as possible with these discovery issues. But, on the

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other hand, I do want to give you the time to work some of

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these things out on your own.

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So what I will do is, if necessary, and I think that

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there will be some motions, if necessary motions to compel

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filed -- motions to compel to be filed by May 4.

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Response, if motions are filed, by May 18.

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And once I look at -- look at the motions and the

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responses, I'll set a date for status hearing or oral argument

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or just simply rule by mail.

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MR. SCHAPIRO: And, your Honor, are you contemplating
simultaneous submissions --

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THE COURT: Correct.

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MR. SCHAPIRO: -- so if we have --

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THE COURT: So if you have motions, file them by the

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4th.

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MR. SCHAPIRO: The 4th and the 4th.

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THE COURT: And the same thing.

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MR. SCHAPIRO: Terrific.

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THE COURT: So I'll just deal with them all. Okay?

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MR. SCHAPIRO: We'll try and minimize them, your
Honor.

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THE COURT: All right. Thank you.

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MR. GIVENS: Thank you, your Honor.

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MR. STACK: Thank you, your Honor.

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(Which concluded the proceedings in the above-entitled
matter.)
CERTIFICATE
I HEREBY CERTIFY that the foregoing is a true, correct

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and complete transcript of the proceedings had at the hearing

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of the aforementioned cause on the day and date hereof.

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/s/Pamela S. Warren
Official Court Reporter
United States District Court
Northern District of Illinois
Eastern Division

April 18, 2012
Date