Dunstan et al v. comScore, Inc.

Filing 122

MOTION by Plaintiff Jeff Dunstan to dismiss RE: Motion to Voluntarily Dismiss Count IV (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Thomassen, Benjamin)

Exhibit B

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TRANSCRIBED FROM DIGITAL RECORDING

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

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4 JEFF DUNSTAN, individually and
on behalf of a class of
5 similarly situated
individuals, and MIKE HARRIS,
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Plaintiffs,
7 -vs8 comSCORE, INC., a Delaware
corporation,
9
Defendant.
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Case No. 11 C 5807
Chicago, Illinois
August 13, 2012
11:10 a.m.

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TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE YOUNG B. KIM, MAGISTRATE JUDGE
APPEARANCES:

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For the Plaintiffs:

MR. BENJAMIN SCOTT THOMASSEN
Edelson McGuire, LLC
350 N. LaSalle Street
Suite 1300
Chicago, IL 60654
[phone]

For the Defendant:

MR. ANDREW H. SCHAPIRO
MS. ROBYN M. BOWLAND
Quinn Emanuel Urquhart & Sullivan, LLP
500 W. Madison Street
Suite 2450
Chicago, IL 60606
[phone]

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Transcriber:
KATHLEEN M. FENNELL, CSR, RPR, RMR, FCRR
Official Court Reporter
United States District Court
219 South Dearborn Street, Suite 2144-A
Chicago, Illinois 60604
Telephone: [phone]
e-mail: [e-mail]

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APPEARANCES: (Continued)

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For the Defendant:

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MR. PAUL F. STACK
Stack & O'Connor Chartered
140 South Dearborn Street
Suite 411
Chicago, IL 60603
[phone]

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(Proceedings heard in open court:)

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THE CLERK: 11 C 5807, Harris, et al., versus
comScore, Inc.

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MR. SHAPIRO: Good morning. Andrew Shapiro for

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comScore. With me is Robyn Bowland from our office and Paul

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Stack from Stack & O'Connor.

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MR. STACK: Good morning.

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MR. THOMASSEN: Good morning, your Honor. Ben

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Thomassen here for plaintiffs.

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THE COURT: Okay. Last time the parties reported

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that defendants -- defendant did make the supplemental

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response. Plaintiffs were having some difficulty in sort of

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interpreting or going through the documents that had been

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produced by defendant, and I think at that point I advised or

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suggested to the parties that the vendors, the ESI vendors,

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meet and discuss as to whether there are any ways for the --

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to make it easier on the plaintiff to go ahead and view the

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documents.

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MR. SHAPIRO: That's right. And I think we've -that was very productive, your Honor.

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Mr. Thomassen will correct me if I'm

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mischaracterizing anything, but I think we at least agree now

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on what the issues are, and we might be at loggerheads about

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who ends up paying for some remediation, but otherwise we're

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close.

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So there were a pair of issues that ultimately I

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think the plaintiffs have. A first is that the Bates stamping

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of the documents that we provided doesn't appear in the OCR'd

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version. We've checked with our vendor. We can have that,

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have it redone and do that at a cost of about $300, and we're

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willing to just do that ourself.

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Ms. Bowland will correct me if I'm misstating.

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MS. BOWLAND: I believe that is correct.

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MR. SHAPIRO: So I don't think we've communicated yet

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to the plaintiffs until this very moment that we're happy to

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do that for them and provide them with -- with all of that

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material with fresh Bates stamps, so that will be done.

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The second area on which there -- we've at least

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identified the problem, although this was, I believe, new to

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us during the course of these discussions, the plaintiffs have

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complained to us that they are not able to separate out --

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they would like the production separated out by JIRA ticket.

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Your Honor may recall that these JIRA tickets are internal

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working notes when there needs to be a change made to the

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software. We've provided them all to them, but it's not

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broken out by ticket.

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Our position is and has been that it's quite simple

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to search through. This is how we, the defense lawyers, have

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been searching. You type in the name of an attachment. One

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of their clients said they can't find the attachments. You

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type in the name of the file. It goes to it. You find it.

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We're not using any special method or software ourselves to

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work through all the JIRA tickets.

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If they want someone to go ahead and break down what

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is now a large document by JIRA ticket, it can be done. It

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can be done manually by their vendor, by our vendor, perhaps

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even by a smart paralegal somewhere. What one would need to

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do is say, all right, JIRA Ticket No. 1 is on Pages 1 through

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5 of the document, and you put in a little code. JIRA Ticket

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No. 2 is on Pages 6 through 20, and you put in a little code

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and then code the attachments.

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It's manual work. The production that we're working

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with is not in that form. It will cost 15 or $20,000. Our

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feeling is if they want to be able to work through the

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documents in that form, they're welcome to, but they should

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pay for it. We shouldn't.

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THE COURT: Okay. Mr. Thomassen?

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MR. THOMASSEN: A lot of what --

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THE COURT: Before I go to -- any other issues that

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you're aware of?
MR. SHAPIRO: Not on this issue of the production of
discovery.

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MS. BOWLAND: Your Honor --

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THE COURT: Yes.

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MS. BOWLAND: If I can clarify one thing.

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THE COURT: Yes.

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MS. BOWLAND: The OCRing (inaudible) JIRA tickets,

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just to clarify.

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MR. SHAPIRO: You mean with the new Bates numbers.

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MS. BOWLAND: With the new Bates numbers.

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MR. SHAPIRO: Yes. It's already OCR'd.

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MR. THOMASSEN: So this issue, your Honor, with the

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matching of individual tickets to the attachment to the

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tickets, that's something that's been on the table here for a

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while, and you originally identified that when you talked

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about, well, plaintiffs had received all this information.

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When comScore views it at its headquarters, it has proprietary

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software where you can look at an individual ticket, each of

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which has several attachments to the tickets and hyperlinks

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throughout. You can click on those attachments and open them

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right up, or you can click on the individual hyperlinks in

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them and open them right up, and so there's this ease of

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movement from one to the other here.

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Now, comScore has the ability to do that. That's --

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that's not with the produced documents that were given to us.

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Those were exported to us in these large batch formats that

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stand about 1,500 pages or more in length and are comprised of

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hundreds of JIRA tickets. So we have this batch production of

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tickets. Then following that, we have the production of

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attachments and hyperlinks, things of that nature.

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And so to move between one and the other for us is a

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multistep process because you have to first sort through these

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long documents that are comprised of all these tickets. You

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have to identify a ticket, and then if you want to start

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viewing the attachments to that ticket, you have to do a

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separate search using metadata to find the separate ticket

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numbers that correspond to that.

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Now, throughout our discussions with defendants in

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this case, the understanding we were given was that there was

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only one way that they could produce all of these tickets to

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us, and that's in these large batch formats. They can only

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produce us -- produce a thousand tickets to us at once in one

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clump.

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Now, since our discussion last week with the vendors,

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comScore went back or comScore's vendor, I understand, went

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back and looked at comScore's systems to confirm that, no, it

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is possible to also produce tickets individually. So you

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could print out a ticket, print out that ticket's attachments

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and hyperlinked documents and produce that as one little

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clump. So then you would have this ease of movement between

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the ticket and the attachments.

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They have the ability to do that. I don't know if

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they investigated that initially, but that's not how they were

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initially produced to us.

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THE COURT: It's not defendant's responsibility,

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though, right?
MR. THOMASSEN: Well, their responsibility under
Rule 34 is to produce -THE COURT: Is simply to produce in native format,
the format that they have documents.

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MR. THOMASSEN: Well, sure, and this --

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THE COURT: But this issue I already ruled on. You

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know, it was part of the motion to compel, which I denied.

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But go on. It's possible to go ahead and organize the tickets

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by ticket as well as -- and then to correlate the ticket with

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the corresponding attachments.

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MR. THOMASSEN: Right.

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THE COURT: It's possible to do so.

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MR. THOMASSEN: Correct. And to clarify, your Honor,

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we're not trying to reopen the door on the previous issue,

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which was -- that was really we were asking the defendant to

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match up their individual documents to our individual

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discovery requests, and that's something that -- I mean we're

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not trying to do that here.

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What we're looking at here is whether or not the

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production they've given us, and these are -- these are

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printouts. They are printed TIFF pages with associated OCR

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data, so this is not native JIRA ticket files. They're just

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printed pages with associated OCR data.

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They produced them in a way to us that makes it very

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difficult to move between tickets and attachments. And we

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think since they have the ability to do this, they had the

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ability to do this at the outset, we think it's their

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responsibility to make the -- their production reasonably

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useful so that we can move between things easily.

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And our vendors have identified two ways that that

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can happen. One involves reproducing things as I described

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them to your Honor, so producing a ticket and then producing

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its attachments, or going through the OCR data itself and

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doing what's called a Logical Document Determination service,

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I believe it's called LDD, which involves, as was just

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explained, programmers going through and saying, yes, this

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looks like the beginning of a ticket and the end of a ticket.

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I'm going to make a little note in the code there, and I'll be

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able to set up these parent-child relationships between

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tickets on the one hand and attachments on the other.

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MR. SHAPIRO: Your Honor --

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THE COURT: The defendant is telling the Court that

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the defendant counsel -- attorneys for the defendant are

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working with the same data that the plaintiffs' counsel has to

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work with and that in order to provide this data in a more

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useful format would cost $20,000. Who's going to pay for

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that?

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MR. THOMASSEN: Well, and, again, I take a little
issue with that. One is that the -- the Logical Document

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Determination costs that I just talked about, that's a little

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bit less than this larger cost here, which I believe is

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associated with reproducing the entire production under

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this --

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MS. BOWLAND: Correct, your Honor, but we actually

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did look at (inaudible) the costs that we're looking at for

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LDD is --

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THE COURT: LDE?

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MR. SHAPIRO: D.

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MS. BOWLAND: LDD, your Honor, is between 7,000 and

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14,000, depending -- unfortunately, our vendor can't give us a

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solid estimate because, again, it's based on someone going

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into the production and manually doing things. So it's kind

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of a wide range -- (inaudible).

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THE COURT: And are we not going to be able to doing

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what I proposed, which was to give limited access to

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plaintiffs' counsel to the proprietary software so that data

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can be viewed easily?

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MR. SHAPIRO: Here's where we are on that, your

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Honor. I guess the answer is we're open to the idea, but

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there's a hurdle that might be hard for us to work through,

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and that is how we would redact privileged information.

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There are some items in the JIRA production --

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THE COURT: Let me stop you. I do have other cases.

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It's going to take me a little longer to address this issue

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with the parties. I do want to get to the bottom of it so

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that we have some -- we know where we're going with this.

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So I'm going to go ahead and pass this case, call the

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other cases, and then recall this case and we can talk more

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about it, all right?

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MR. SHAPIRO: Thank you, your Honor.

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THE COURT: Thanks.

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(Case passed and recalled at 11:55 a.m.)
THE CLERK: 11 CV 5807, Harris, et al., versus
comScore, Inc.

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MR. SHAPIRO: Do we need to --

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THE COURT: Yes. Yes, you do.

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MR. SHAPIRO: Andrew Shapiro for comScore. With me

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is Robyn Bowland from our office and Paul Stack from Stack &

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O'Connor.

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MR. THOMASSEN: Good morning again, your Honor. Ben
Thomassen.
THE COURT: Okay. So in terms of written discovery,

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this is the only sticking point, right? The documents

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produced and how the plaintiff attorneys are to go about

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actually reviewing these documents in some meaningful way.

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Plaintiff attorneys are having difficulty reviewing

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these documents because they're just pages and pages and pages

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of information, and it's understandable because defendant

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company doesn't really store this information in this -- in

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this form because it's all stored in a proprietary software,

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and the information resides within that database. And

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whenever defendant personnel needs to get something out of it,

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I'm assuming that person then interfaces with the software and

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out comes the answer, right?

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MS. BOWLAND: I believe that's right, your Honor.

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THE COURT: And this is not that different from other

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cases, where many of the companies are using customized

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proprietary software for its business, and unfortunately that

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means that those without this proprietary software can't

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really view the information in any meaningful way in a

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cost-effective way.

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And in those situations, and I think I said this

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before, in those situations, I have ordered, without much

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opposition, limited access, you know, in a cubicle or a room

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with somebody to monitor to get a sense of, you know, how this

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data fits into the overall scheme of things and to be able to

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view the information. And last time before we passed the

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case, I think Mr. Shapiro, your concern is how do we go about

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protecting attorney-client information.

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MR. SHAPIRO: Right.

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THE COURT: I'm wondering if this is then --

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MR. SHAPIRO: I think we might be able to work this

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out if we can get some comfort that this is going to end this

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back and forth because the one statement that your Honor made

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just a moment ago that I would respectfully disagree with is

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that we provided materials to them in some way that's very

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difficult or expensive for them to go through.

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I've walked into Ms. Bowland's office and seen her

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just pulling up attachments or JIRA. This is how we're doing

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it. It's really not that cumbersome.

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THE COURT: I wonder if you have an advantage --

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MR. SHAPIRO: But --

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THE COURT: -- because you have comScore on your

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side --

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MR. SHAPIRO: No.

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THE COURT: -- to counsel you.

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MR. SHAPIRO: I don't think that's affecting it. I

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suppose that maybe they want to look at more things or

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different things, but I think we may be able to work this out.

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It's just, you know, at each step, first they said we want you

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to link each document to one of our requests, and your Honor

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correctly said no, we have no obligation to do that.

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And then they said, well, we want it all Bates

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stamped in a certain way, and we've agreed now to Bates stamp

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it. And now there's this other claim, and, fine. We --

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assuming we can come up with some protocol that would protect

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the privilege, let them come and noodle around, but -- but,

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you know, at some point we -- we'd like to just have some

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closure on this because we're chugging ahead with, you know,

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going through even our own documents and theirs. I mean, the

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privilege issue --

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THE COURT: Why would we have privilege issues?
Because you've already provided the information.
MR. SHAPIRO: But we've redacted -- so the only

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issue, and we can probably find a work around this, when we

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produced in the OCR form and the other form, there could be a

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printout, documents, there are a handful of items that are

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privileged and so we're able just to redact them.

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If someone is sitting down on the system, obviously

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the system is what the system is, and there aren't redactions

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included. There's nothing in there that we're particularly

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concerned about. It's benign or helpful frankly material, but

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we don't want there to be any suggestion that we've waived

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privilege.

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THE COURT: Sure.

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MR. SHAPIRO: I think we would also -- I would want

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to go back and make sure because we can't unring the bell

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if -- even if we had an agreement about waiver, I want to make

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sure that there's nothing in there that gives away anything

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about our strategy that is -- that they're not entitled to

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because as much as they can say we're not going to treat it as

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a waiver, it's hard for them once they've seen it -- I'm just

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going to hypothesize. If we say, you know, here's our

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great -- here's the flaw in the plaintiffs' case and here's

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how we're going to demonstrate that they're making this stuff

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up, and that's in one of the JIRA tickets -- this is just an

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in-extreme hypothetical -- we don't want them to see that.

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We may be able to work that out. We actually have a

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representative of the company here today. We certainly would

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want some agreement that we're not waiving privilege if we're

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not able to redact those and we would want someone, as your

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Honor suggested, to be there to monitor what they're doing.

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THE COURT: Is Rule 5 -- isn't it Rule 502? You
could probably use that, right?
MR. SHAPIRO: You'll have to refresh me as to
Rule 502, your Honor. I'm not going to fake it.

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THE COURT: Federal Rule of Evidence 502. It deals

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with the privilege issue, that you're able to use it, not to

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waive any privilege.

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But I'm with you, Mr. Shapiro. We need to bring some
closure to this issue.

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What do you think about that proposal?

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MR. THOMASSEN: Well, you've got limited access --

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THE COURT: Limited to the extent, what I mean by

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that is limited to the data that's already been compiled. I

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don't even know technically whether we're able to segregate

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the data you've already segregated, store that into a -- like

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a terminal or limited-access database, then you can use -- and

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then plaintiffs' counsel would be able to use the proprietary

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software to then manipulate or to --

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MR. SHAPIRO: I'm told that we can segregate it. I

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don't know whether it would actually be live online with just

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some mechanism that blocks them from going -- looking around

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everything else in comScore's system or whether it's, you

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know, on a separate terminal. I'm told that we can separate

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it.

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THE COURT: What do you think?

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MR. THOMASSEN: Your Honor, I think that a lot of the

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variations of discussions we've had with counsel here have all

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been geared towards what could be accomplished by an on-site

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inspection.

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It's really, as we've talked about, the issue of

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finding out how these individual tickets relate to the rest of

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the documents they produced. I mean, I don't think there's

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any dispute here that a large number of documents have been

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produced.

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And so our ability to navigate from tickets to

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attachments and hyperlinks in a meaningful way is limited by

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what we have now. We've discussed various approaches we have

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to solve that, but this solution could be a perfect --

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THE COURT: So if defendant is willing to give you

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that on-site inspection, if you will, are we going to be done

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with this issue?

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MR. THOMASSEN: I certainly hope so, your Honor.

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THE COURT: So then we need to have a specific
protocol in place with rules and restrictions.

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I'm sorry, can we have -- is that a company
representative?

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MR. SHAPIRO: Just came up and whispered something to
Robyn.

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THE COURT: Yeah, I don't want to waste time
whispering back and forth.

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MR. SHAPIRO: Yeah.

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THE COURT: If there's a concern, let's go ahead
and -MR. SHAPIRO: That's a colleague of Mr. Stack who

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just asked that we find out how much time the plaintiffs

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anticipate they would need to be on-site for this. That needs

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to be an important part of the protocol, I think, so that we

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can plan and make it work right.

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THE COURT: Yeah, I think that has to be part of the

18

protocol. The protocol is, you know, where, when, how long,

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who's going to be present, what will the plaintiffs' attorneys

20

be allowed to do on the terminal, or whatever this thing is,

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whether it's -- maybe even it's possible to do remote access.

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I don't know.

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MR. SHAPIRO: It's not.

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THE COURT: Okay. Just work out the details of the

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on-site inspection. What we have so far is that defendant's

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willing to grant limited on-site inspection. We just have to

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figure out the details of that inspection and how to deal with

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the privilege issue. I think it's Federal Rule of Evidence

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502.

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MR. SHAPIRO: It's certainly the case, your Honor,

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though I can't cite a rule, that if we have an agreement or a

7

stipulation that it's not a waiver, then it's not a waiver.

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THE COURT: Of course.

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MR. SHAPIRO: We just need to --

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THE COURT: We have a protective order here, don't
we?

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MR. SHAPIRO: Yes. Well, with regard to the source
code.

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15

THE COURT: Well, anyway, that could also be part of
the conversation.

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MR. SHAPIRO: Yeah. Yes.

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THE COURT: I'd like to see the parties again on

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August 23.

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MR. SHAPIRO: Your Honor, I have an argument in the
nd

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2

21

stand in for me, I wonder if we can do it on --

Circuit on August 23rd. I wonder if -- while someone could

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THE COURT: Yeah, can we have somebody else stand in?

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MR. SHAPIRO: Sure.

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THE COURT: Number one, I do want to follow the case

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closely.

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MR. SHAPIRO: Sure.

2

THE COURT: And number two, I just want to get a

3

sense of whether we have something in place that we can use.

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MR. SHAPIRO: Sure.

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THE COURT: If not, then we have to go to Plan B,

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which, you know, might involve us trying to figure out who's

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going to pay for what. I mean, that's the alternative here, I

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think, right?

9

MR. SHAPIRO: That's fine. 11:00 a.m.?

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THE COURT: 11:00 a.m., August 23rd.

11

MR. SHAPIRO: And your Honor -- your Honor said a

12

moment ago, and maybe I should have flagged this earlier, that

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as far as we're concerned, this is the only open issue about

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documentary discovery.

15
16
17

There's one other issue that might fall under that
heading. Mr. Stack is going to address this.
MR. STACK: Your Honor, this goes to the issue of

18

defendant -- there's actually two issues. When we were last

19

in front of Judge Holderman, plaintiff counsel (inaudible) and

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we don't know. We haven't seen (inaudible).

21

There's another issue. In the original complaint,

22

the Plaintiff Dunstan alleges that our software jammed his

23

machine. He had to get anti-virus software to clean it out,

24

and so we said may we please have the virus log then which

25

will prove it.

20

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2

Mr. Dunstan was unwilling to turn over the virus
logs. He hasn't been able to turn them over.

3

To resolve the issue, plaintiffs' counsel said, well,

4

we're going to drop those claims relating to --

5

THE COURT: Yes, I remember.

6

MR. STACK: And so what we're doing is we're not

7

enforcing our request to produce pending this amendment of the

8

complaint, which is -- which is taking, frankly, too long.

9

And so I'm wondering if your Honor could set a date

10

where either the complaint is amended or else then if it's not

11

amended by that date, then we can come and file the motion to

12

compel.

13

MR. THOMASSEN: If I may, your Honor?

14

THE COURT: Yes.

15

MR. THOMASSEN: We've gone back on forth on this a

16

bit with defense counsel and what we've decided since the

17

hearing that was referred to is we are not adding the

18

trespassing chattels claim. That was considered, and we

19

decided not to. We communicated that multiple times to

20

defense counsel through e-mail.

21

And so what happens here is that what we're planning

22

on doing and what we've said that we're going to do is we're

23

going to drop the subclass that deals with these actual

24

damages, and we're going to drop the one claim that was

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brought on behalf of the subclass.

21

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Now, we thought that the most appropriate way to do

2

this is just to enter a stipulation between the parties that

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we are not -- plaintiffs are not pursuing relief on behalf of

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the subclass and are not pursuing recovery under this one

5

claim. The issues are only being limited here. There's

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nothing being added.

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So from our view, there's no reason to file a

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completely new amended complaint if both parties can agree

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that plaintiffs are not proceeding on behalf of the

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subclass -THE COURT: So what you're suggesting is that simply

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filing a stipulation to dismiss portions of the complaint.

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MR. THOMASSEN: That's the offer we've had on the

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table for a while now.

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THE COURT: That's the same thing, right?

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MR. STACK: Well, it's a little busy because the

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allegations still remain in the complaint. I -- in the old

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days before we had word processors, I think there would be

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some logic to what he's saying, but they have the complaint in

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a word processing program. If they want to take it out, it's

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just a whole lot easier just to take it out and send us and

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file it next week.

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MR. SHAPIRO: We at least want to see what we'd be

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stipulating to. Say we're proposing to remove bop, bop, bop,

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bop and we won't proceed on bop, bop, bop. And we don't want

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to sign any stipulation until we see what it is we're

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stipulating to.

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THE COURT: But defendant is right. Until there is

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an amended complaint or we have a stipulation to dismiss

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certain claims from the complaint, that claim remains active,

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so --

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MR. THOMASSEN: I agree with you, your Honor.

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THE COURT: -- the only question is timing. When are

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the plaintiffs, or I should say when is Mr. Dunstan willing to

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go ahead and take a position formally on the docket so we all

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know what to consider?

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MR. THOMASSEN: We -- and he was willing to make that

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position a couple weeks ago. And we said, look, if you're

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willing to stipulate that we'll drop these claims, we'll draw

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up a stipulation and get it to you in the morning for your

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review; but defense counsel has been insisting to this point

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on an amended complaint.

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And so, I mean, we could draw up the stipulation

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today and have it for their review tomorrow morning if they'd

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like it. I mean that's a quick -- I mean, I think that's the

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quickest and easiest way to resolve this.

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MR. STACK: Your Honor, we feel strong (inaudible).

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THE COURT: No, it's really up to the plaintiff,

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Mr. Dunstan, what he wants to do. Either he can amend the

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complaint or he can dismiss portions of his complaint; and

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depending on the scope of that dismissal, it would be up to

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defendant to then decide, okay, do we now move forward with

3

our motion to compel or do we not?

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I mean, we -- the Court only has so much power in

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terms of what -- how to -- I'm sorry, in terms of what we can

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say to the plaintiff to do.

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MR. SHAPIRO: Right, we just -- as your Honor has

8

pointed out, we've got an operative complaint right now and we

9

have a document request that hasn't been answered for the --

10

that is a perfectly proper one for the anti-virus laws, and

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that's the state of play right now. And, you know, we at some

12

point are just going to move, you know, renew our motion to

13

compel on that.

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THE COURT: But, you know, take a look at the

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stipulation to dismiss and figure out whether there is any

16

remaining issue as to the outstanding discovery request based

17

on the scope of the dismissal.

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So Mr. Thomassen has said he will go ahead and draft

19

the stipulation to dismiss and share that draft with

20

defendant, so I will require the Plaintiff Dunstan -- it's

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Dunstan, right?

22

MR. THOMASSEN: Yes, your Honor.

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THE COURT: To do so by tomorrow, August 14.

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And I can't imagine defendant not wanting to

25

stipulate to the dismissal because it's always better to have

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1
2

something dismissed, right?
MR. SHAPIRO: But we don't want to end up at trial

3

saying, oh, and they start raising claims about his computer

4

operating slowly and we say we understood that to be within

5

the scope of claims that you were no longer going to pursue,

6

and they say, oh, no, we weren't.

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8
9

THE COURT: Why don't we take a look at the scope of
the stipulation -MR. SHAPIRO: Okay.

10

THE COURT: -- before we move forward.

11

MR. STACK: I think your Honor is correct.

12

Stipulation is something we're either going to agree to or we

13

won't. If we don't agree to it (inaudible).

14

THE COURT: All right. Let's have that thing done,

15

filed, if possible, before we see each other again next week,

16

the 23rd.

17

MR. THOMASSEN: Just so I'm clear, your Honor, the

18

order will have us getting the stipulation to defense counsel

19

tomorrow, and then the filing will hopefully follow shortly

20

thereafter.

21

THE COURT: It depends on the defendant's response --

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MR. THOMASSEN: Of course.

23

THE COURT: -- to the draft of the stipulation because

24

we do have an answer on file, so, you know, otherwise --

25

otherwise, dismissal would have to be with permission of the

25

1

Court, I believe.

2

MR. SHAPIRO: Correct.

3

THE COURT: Okay? Anything else?

4

MR. SHAPIRO: Not from us.

5

MR. THOMASSEN: That's it.

6

THE COURT: All right. So hopefully we'll have good

7

news next Thursday.

8

MR. THOMASSEN: Thank you, your Honor.

9

MR. SHAPIRO: Thank you, your Honor.

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11

THE COURT: Take care.
(Which were all the proceedings heard.)

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CERTIFICATE
I certify that the foregoing is a correct transcript from

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the digital recording of proceedings in the above-entitled

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matter to the best of my ability, given the limitations of

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using a digital-recording system.

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/s/Kathleen M. Fennell

August 31, 2012

Kathleen M. Fennell
Official Court Reporter

Date