Dunstan et al v. comScore, Inc.

Filing 116

RESPONSE by comScore, Inc. in Opposition to MOTION by Plaintiffs Jeff Dunstan, Mike Harris to Modify Scheduling Order 113 (Attachments: # 1 Exhibit A)(Bowland, Robyn) (Docket Text modified by Clerks' Office.)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of a class of
similarly situated individuals
Plaintiff,

CASE NO. 1:11-cv-5807
Judge Holderman
Magistrate Judge Kim

v.
COMSCORE, INC., a Delaware corporation
Defendant.

COMSCORE'S RESPONSE TO PLAINTIFFS' MOTION TO MODIFY
SCHEDULING ORDER
Defendant comScore, Inc. ("comScore") respectfully submits this response to Plaintiffs
Mike Harris' and Jeff Dunstan's ("Plaintiffs") Motion and Supporting Memorandum to Modify
Scheduling Order. (Dkt. No. 113.)
I.

INTRODUCTION
Plaintiffs’ motion to modify the scheduling order should be denied. As the proceedings

before Magistrate Judge Kim have confirmed, Plaintiffs long ago received all the discovery to
which they are entitled. Plaintiffs still have almost two months left to finish whatever classbased discovery remains to be completed, and their motion fails to identify a single issue, topic,
or area of discovery that requires time beyond the current September 14, 2012 deadline. There
is no basis to extend the schedule.
As part of their Motion, Plaintiffs appear to seek an additional sixty days for class
certification expert disclosures. Plaintiffs have not identified any reason it failed to meet the July
16, 2012 expert disclosure deadline and never requested any such extension from comScore.

Instead, Plaintiffs filed this omnibus Motion to modify the scheduling order on the day their
expert disclosures were due. Plaintiffs have missed the July 16, 2012, deadline for Rule 26(a)(2)
disclosures for class certification issues and should not be allowed to disclose experts for class
certification out of time.
II.

ARGUMENT
In its Order of March 15, 2012, this Court set the following deadlines:


Plaintiff shall comply with FRCP 26(a)(2) on class certification issues by
7/16/2012.



Defendant shall comply with FRCP 26(a)(2) on class certification issues by
8/15/2012.



Class-based Discovery ordered closed by 9/14/2012.



Supplemental class certification motion to be filed by 10/14/2012.

While this Court has broad discretion to control discovery, an extension of a deadline
requires "good cause," which ordinarily means a showing that the deadline that "cannot be
reasonably met despite the diligence of the party seeking the extension.” Fed. R. Civ. P.
16(b)(4); 1983 Advisory Cmte. Note to Fed. R. Civ. P. 16. Plaintiffs have failed to meet their
burden of demonstrating good cause for their request to extend discovery and for their failure to
provide Rule 26(a)(2) disclosures as required.
A. Plaintiffs fail to explain why they cannot complete class certification discovery by
September 14, 2012
Plaintiffs filed their request to extend the class certification discovery deadline two
months before the deadline. Notably, however, Plaintiffs have failed to explain why they cannot
complete discovery by the current deadline, September 14, 2012. It is undisputed that Plaintiffs
have had the primary material that they need to make their class certification arguments—

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comScore’s source code—since January 23, 2012.1 (Ex. A, Jan. 23, 2012 Receipt for
comScore’s source code.) comScore provided its written discovery responses as required on
March 23, 2012 and produced all of its class-related documents on April 13, 2012.2

Plaintiffs

filed various motions to compel, but Magistrate Judge Kim denied those motions in all respects
relevant here.3 Thus, Plaintiffs are (and have been for some time) in possession of all of the
documentary discovery to which they are entitled.
All that remains of Plaintiffs' requested discovery is for the Plaintiffs to take their Rule
30(b)(6) deposition. That deposition is scheduled to take place on August 15, 2012, a date that
was settled upon after Plaintiffs rejected (for scheduling and other reasons, including their desire
to wait for Magistrate Judge Kim’s ruling on their ultimately unsuccessful motions to compel)
dates of April 18 (the date originally noticed by Plaintiffs), May 2, and July 19, 2012.
While this history belies Plaintiffs’ unfortunate assertions of “dilatory tactics” on
comScore’s part, the important facts are that documentary discovery concluded months ago; the
Plaintiffs have had comScore’s source code for more than half a year; and the Rule 30(b)(6)
deposition is set to take place on August 15—a full month before the deadline for the close of
1

In January Plaintiffs represented to Judge Kim that they had already analyzed much of
comScore’s software. “Well, Your Honor, we—prior to even filing suit we had experts, forensic
experts go in and figure out how the system works. That's why we're very confident about our
facts.” Jan. 5, 2012 Hr'g. Tr. at 9:16-19.
2

comScore in good faith understood the March 23 deadline to have applied to responses
to requests to produce, with actual production to follow. When Magistrate Judge Kim made
clear that the production was to have been completed by that date, he set a new deadline twenty
days hence, which comScore met. Plaintiffs seek to make much of that misunderstanding,
without justification, but even on their terms that short delay back in the spring provides no basis
for the extension they now seek.
3

The sole respect in which one of Plaintiffs’ motions was granted in part pertained to
Interrogatories 16 and 17. Magistrate Judge Kim directed comScore to investigate if any further
information responsive to Plaintiffs’ supplemental requests (regarding certain “legacy” fields in
the source code) existed. comScore promptly investigated and on July 16, 2012 informed the
Plaintiffs that nothing else exists that is responsive to their request.

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class discovery. There is more than enough time remaining for Plaintiffs to finish up whatever
might remain, and they offer no good reason for delay.
Additionally, Plaintiffs state that Judge Kim “indicated that he understood the need for
more time and advised the Plaintiffs to seek the extension through this Court.” (Dkt. No. 113 at
9.) Although Judge Kim informed the Plaintiffs that any extension would need to be granted by
Your Honor, he did not indicate that “he understood the need for more time:”
MR. BALABANIAN: I don't think we're going to make the current class
discovery cutoff of September 14th. I will say I think the parties have been very
diligent in meet and conferring. We've had a bunch. We continue to do so, and I
think they've all been very professional in tone, but I don't think we're going to
make it at this rate, and I need to flag that issue for the Court because I don't want
two months from now –
THE COURT: I appreciate that.
MR. BALABANIAN: -- you to be sitting there warning me I should have –
THE COURT: I mean, I myself took some time with this motion, too, so -- go
ahead.
MR. BALABANIAN: How should we address that, in a motion before your
Honor or in front of Judge Holderman? I guess Judge Holderman set the schedule,
right, but –
THE COURT: If Judge Holderman set the schedule, then it would be up to him to
move.
MR. BALABANIAN: He set it, right? Yeah, okay.
THE COURT: So if it is his deadline, he should move it. If it's something that I
set, come to me.
July 5, 2012 Hr’g Tr. at 28:2-22.
B. Plaintiffs’ complaints about Defendants’ production are without merit
Plaintiffs suggest that the size and complexity of comScore’s discovery should justify
additional time. Plaintiffs requested all of the information that they have been provided, and

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comScore duly produced these responsive documents after attempting to limit Plaintiffs’
overbroad document requests. Plaintiffs requested all of these documents; they cannot now
complain that comScore provided too much information. There is no reason why comScore’s
production of requested documents should entitle Plaintiffs to an extension of class certification
discovery. In fact, Judge Kim rejected Plaintiffs request that comScore reorganize its
production. (See Dkt. Nos. 104, 108, 112.) Judge Kim ruled that comScore’s production was
"in compliance with Rule 34." July 5, 2012 Hr'g. Tr. at 22:21-22. He also, at Plaintiffs' request,
asked comScore to meet with Plaintiffs to answer their questions about the production. July 5,
2012 Hr'g. Tr. at 23:24-24:13. To that end, comScore has provided a description of the
documents it produced and participated in a meet and confer on July 24, 2012. Plaintiffs, by
their own admission, have been in possession of comScore’s full document production for over
three months. (Dkt. No. 113 at 5.) This production was provided in a form that complies with
Fed. R. Civ. P. 34 and in a form wherein Plaintiffs can electronically search for words and terms
within the documents.4 (Dkt. No. 112; Dkt. No. 113 at 7.) Plaintiffs have no legitimate basis to
complain.
Nor is there any support for Plaintiffs’ assertion in their briefing that comScore engaged
in “dilatory” actions by filing a motion to bifurcate class and merits-based discovery as well as
resisting Plaintiffs’ motion to compel. As a threshold matter, comScore prevailed on both of

4

Plaintiffs' contention that OCR’d text would result in page-by-page search results, the
basis for their contention that comScore’s representation that the production was OCR’d was
“demonstrably false” is, itself, false. (Dkt. No. 113) Typically, OCR’d searching pulls up
documents containing the searched term, not pages. Moreover, most commercially available
document review software platforms provide a “go to the next hit” function which would allow a
searcher to jump to the next hit of the term within the document. In any event, Plaintiffs’
contention that searchable results must provide page-by-page results is new, and therefore likely
nothing more than an attempt to justify their motion to extend the Court’s class certification
discovery deadline.

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these motions. Further, the Court did not set the deadlines Plaintiffs seek to extend until after
Judge Kim ruled that class certification and merits-based discovery should be bifurcated. Thus,
any reliance Plaintiffs’ place on comScore’s supposed "dilatory" tactics before this Court set the
schedule is misplaced.5 See also July 5, 2012 Hr’g Tr. at 28:2-9 (Plaintiffs' counsel informing
Judge Kim that the parties had been “very diligent in meet and conferring. We’ve had a bunch,
and I think they’ve all been very professional in tone . . . .”)
III.

CONCLUSION
Plaintiffs' motion should be denied because: 1) Plaintiffs have not identified any reason

they cannot complete the class certification discovery they claim is required by September 14,
2012 (the current deadline for class-based discovery), and 2) comScore has not engaged in any
“dilatory” actions.

DATED: July 25, 2012

QUINN EMANUEL URQUHART &
SULLIVAN, LLP

_/s/ Andrew H. Schapiro____
Andrew H. Schapiro
[e-mail]
Stephen Swedlow
[e-mail]
Amanda Williamson
[e-mail]
Robyn Bowland
[e-mail]
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
500 West Madison Street, Suite 2450
Chicago, Illinois 60661
5

Although not relevant to this motion, Plaintiffs state that the parties have come to an
agreement regarding Plaintiffs' outstanding discovery requests and that Plaintiffs have
voluntarily produced materials. (Dkt. No. 113 at 8.) comScore disagrees with this
characterization, particularly with respect to Plaintiff Dunstan's unredacted antivirus logs.

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Telephone: [phone]
Facsimile: [phone]
Paul F. Stack
[e-mail]
Mark William Wallin
[e-mail]
STACK & O'CONNOR CHARTERED
140 South Dearborn Street
Suite 411
Chicago, IL 60603
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant comScore, Inc.

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CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of COMSCORE'S
RESPONSE TO PLAINTIFFS' MOTION TO MODIFY THE SCHEDULING ORDER has
been caused to be served on July 25, 2012 to all counsel of record via the Court's ECF filing
system.
_/s/ Robyn Bowland____
Robyn Bowland

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