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 C

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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,

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vs.
COMSCORE, INC., a Delaware
corporation,

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Defendant.

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No. 11 C 5807
Chicago, Illinois
August 23, 2012
11:07 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. BENJAMIN SCOTT THOMASSEN

For the Defendant:

QUINN EMANUEL URQUHART
& SULLIVAN, LLP
500 West Madison Street, Suite 2450
Chicago, Illinois 60606
BY: MR. STEPHEN A. SWEDLOW
MS. ROBYN M. BOWLAND

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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.

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(Proceedings held in open court:)
THE COURT: 11 C 5807, Harris, et al. versus comScore,
Inc., status hearing.
MR. SWEDLOW: Good morning, your Honor. Stephen

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Swedlow, Paul Stack, and Robyn Bowland on behalf of comScore,

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the defendant.

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MR. THOMASSEN: Good morning, your Honor. Ben
Thomassen here for plaintiffs.
THE COURT: All right.

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MR. SWEDLOW: So we have got --

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THE COURT: So --

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MR. SWEDLOW: -- two issues. The first one I think is

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completely resolved. The last time we were here we just -- or

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I didn't -- but we discussed with you the fact that providing

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access to a --

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THE COURT: Yes.

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MR. SWEDLOW: -- computer live link version of

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our -- a portion of our production would require that we also

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include what had been redacted as privileged. We're going to

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just do that. And plaintiffs's counsel has agreed not to use

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that previously redacted information in discovery or for

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strategic purposes.

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THE COURT: Okay.

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MR. SWEDLOW: There is some no take

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procedures -- essentially we have agreed to everything.

We

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could outline it for you, but it works for us, so --

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THE COURT: Great.

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MR. SWEDLOW: The second issue relates to the --

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whether the plaintiff should file an amended complaint or a

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motion for leave to dismiss --

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THE COURT: Yes.

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MR. SWEDLOW: -- certain count. This is -- the issue

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is this: In order to stipulate to a motion to dismiss a

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portion of their complaint, plaintiffs and defendant would be

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required to line item change the complaint in at least these

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ways. Classes would have to become class everywhere -- a lot

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of places. There would be a subclass that would have to be

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dismissed. Count 4 would be dismissed. Factual allegations

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that we believe relate to damages, which would be paragraphs

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71, 72, and 73, would have to be removed from the complaint.

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And what we'd be left with is a complaint that's on

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Pacer that isn't really the complaint. You'd have to take that

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and chart it against the dismissal to figure out what

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allegations remain in the complaint, which -- as you said, you

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can't force the plaintiff to do anything other than -- we can't

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force the plaintiff to do anything.

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This is, I believe, the reason we're having this

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dispute though. If an amended complaint is required to be

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filed and it substantively changes the allegations of the

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remaining counts, we would have to then answer or otherwise

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respond to the amended complaint. It doesn't mean we would

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have a motion to dismiss based on those changes, but we might.

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And if it is stipulation for dismissal, the plaintiff would

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argue you don't get a chance to file a response to stipulation

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for dismissal so you couldn't make your allegation -- your

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motion to dismiss, even if you wanted to, because there is no

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amended complaint that you are responding to.

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That's really -- that's not what it was -- as it was
presented, but that's the real -- that's the strategic

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disagreement why we wouldn't do this interlineation dismissal

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as opposed to an amended complaint eliminating those

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allegations.

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MR. THOMASSEN: And I'm not really sure what

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we're -- what we're re-tracking here. I mean, we -- as ordered

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we provided a stipulation to dismiss the subclass that counsel

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mentioned and the one count that is brought on behalf of that

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subclass. We received revisions to that stipulation about a

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week later. It is our view that the changes to the complaint

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aren't quite as onerous as counsel makes them out to be. The

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word class will have change -- or classes will change to class,

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and one -- one count will be eliminated. But we think that's

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it, and that's what we're willing to do at this point. And --

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THE COURT: Defendant has filed an answer, correct?

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MR. SWEDLOW: We filed an answer to the

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(unintelligible) complaint.

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THE COURT: So there are two -- there are two ways of

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dismissing claims or claim, one, by way of stipulation; or,

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two, by way of a court order. So if we can't have an agreement

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as to what's going to be done with the claims that Mr. -- I

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think Mr. Harris will not be pursuing, then the next step is

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for Mr. Harris to go ahead and file a motion for leave

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to -- leave of Court to dismiss his claim regarding having to

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expend certain dollars to have something removed from his

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computer.

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MR. THOMASSEN: Correct. And for the record, it is
Mr. Dunstan I believe --

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THE COURT: Oh, okay.

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MR. THOMASSEN: -- that the subclass was brought on

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behalf of. And we have -- as I have mentioned, we have a

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revised stipulation draft that we received back from counsel.

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We haven't responded to that yet. We are planning on doing

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that either today or tomorrow.

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And if we can't reach that stipulated agreement to

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dismiss that -- we agreed that that would be the next step to

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move the class --

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THE COURT: But, you know, we need to move forward

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quickly on that because I think the defendant is holding off

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its motion to compel based on what happens with that particular

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claim.

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MR. SWEDLOW: Right.

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THE COURT: So I do need -- let's go ahead -- let's

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have the plaintiff, Mr. Dunstan, respond to that revised

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stipulation by August 31st.

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MR. SWEDLOW: And just to be clear, maybe I'm beating

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a dead horse here, but it is the allegations before you get to

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the count that relate to damage, the ones you described where

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you spend some money -- your computer was damaged. If those

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are eliminated, that could have an impact on the remaining

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counts because our position would be that -- those allegations

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relating to damage are different now. The only -- the damage

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would only be whether it is damage or not. The information was

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intercepted or --

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THE COURT: Yes.

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MR. SWEDLOW: -- whatever.

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THE COURT: You're right. You're right.

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MR. SWEDLOW: And so it is a different claim for the

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remaining counts. And we won't get a chance -- I'm not saying

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we would file a motion to dismiss, but we don't even get a

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chance to respond to the new allegations without those extra

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damage allegations in there if it is a -- if it is a

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stipulation. So we could wind up further in the case, and then

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you or Judge Holderman could decide this -- there is no claim

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here because without those allegations there is no damage.

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THE COURT: Do you want to say something?

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MR. STACK: No, I -- the point that he has just made,

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which is the allegations that we're having the trouble with,

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are not in the (unintelligible) --

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THE COURT: Uh-huh.

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MR. STACK: -- general body of the complaint, so they

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would provide (unintelligible) basically --

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THE COURT: Uh-huh.

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MR. STACK: -- provide background for the other

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allegations, the other counts. That's -- that's the

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(unintelligible) our discovery is directed to the allegations

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(unintelligible).

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THE COURT: And, you know, it is what it is.

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MR. STACK: Yeah.

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MR. SWEDLOW: Okay.

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THE COURT: So if you can't agree to it, then

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plaintiff will file a motion. If that motion is denied, then

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the plaintiff can either amend the complaint or fight the

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motion to compel. If the motion to compel is somehow granted

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and the plaintiff does not want to comply with the order, then

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I'm sure the last resort would be that plaintiff has to amend

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the complaint. So -- but we'll move through this.

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Now are we -- we're moving forward with
(unintelligible) discovery or -MR. SWEDLOW: We had a 30(b)(6) deposition that took

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place already, and we have got three company -- comScore

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company employees scheduled in a couple of weeks as well.

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And both the -- I should point out, both of the class

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representatives, the plaintiffs themselves, have been deposed.

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THE COURT: Okay. So plaintiff is to go

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ahead -- plaintiff, Mr. Dunstan, to go ahead and respond to the

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revised (unintelligible) by August 31st.

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And I'd like to see the parties again on September

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focus -- September 14 at 11:00. I'd like to focus on

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depositions taken and outstanding depositions and how much time

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we need to complete those depositions because I think -MR. SWEDLOW: There was a motion for extension of the

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time period that was granted previously, so the discovery

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period was extended a little bit.

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MR. THOMASSEN: To November 30th.

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THE COURT: But then I see that we have Rule 26(a)(2)

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to be served by the plaintiffs by September 17th. So I need a

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status report on that too on the 14th. Okay?

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MR. SWEDLOW: Yeah, no problem.

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The -- it will be -- it might be a different face here

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because we're -- we're going to be in -- we're going to be at a

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deposition on the 14th. We have depositions scheduled the

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12th, 13th, and 14th.

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THE COURT: Uh-huh.

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MR. SWEDLOW: We can certainly send somebody here, and

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they will be reporting on the fact that in part we're in a

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deposition that day. But I think we can keep (unintelligible)

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is that okay with you?

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MR. THOMASSEN: It is fine with us. It is a
deposition relating to this case, so --

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THE COURT: Well, what you are telling me is that

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whoever appears for the status hearing may not have extensive

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knowledge about the case.

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MR. SWEDLOW: I think -- I think they will. But, yeah
--

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THE COURT: You know, if that's the case, then do me a

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favor and prepare a status report and file it with me before

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the 14th so that I know what's going on. I'm interested in

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sort of wrapping up the old discovery for class issues.

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MR. SWEDLOW: Okay.

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THE COURT: Okay? All right. Talk to you on the

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14th.
MR. SWEDLOW: Thank you, your Honor.
(Which concluded the proceedings in the above-entitled
000matter.)

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CERTIFICATE

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I HEREBY CERTIFY that the foregoing is a true, correct
and complete transcript of the proceedings had at the hearing
of the aforementioned cause on the day and date hereof.

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/ s/ Pam a S.
el

W r en
ar

Official Court Reporter
United States District Court
Northern District of Illinois
Eastern Division

August 30, 3012
Date