Dunstan et al v. comScore, Inc.

Filing 131

MEMORANDUM by comScore, Inc. in support of motion for discovery 130 re: Leave to Depose Plaintiff Dunstan (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Bowland, Robyn)

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 MEMORANDUM IN SUPPORT OF ITS MOTION FOR LEAVE TO
DEPOSE PLAINTIFF JEFF DUNSTAN
Defendant comScore, Inc. ("comScore") respectfully submits this memorandum in
support of its motion for leave to depose Plaintiff Jeff Dunstan (“Dunstan”) for a second time.
I.

FACTS
On August 23, 2011 Dunstan, along with co-Plaintiff Mike Harris, filed a purported class

action lawsuit against comScore, alleging violations of certain federal statutes as well as the
Illinois Consumer Fraud and Deceptive Practices Act (“CFDPA”). (Dkt. No. 1.) In support of
these claims, Dunstan repeatedly alleged that comScore’s software had debilitated his computer,
which required the purchase of antivirus software to remove the comScore software and “fix” his
computer. (Dkt. No. 1 at ¶¶ 15, 71-73, 114-119.) On March 9, 2012, comScore issued document
requests seeking the production and inspection of Dunstan’s computer to determine, inter alia,
whether Dunstan had downloaded comScore’s software and whether Dunstan’s computer was
fully functional before downloading comScore’s software. (Ex. A, comScore’s First Set of
Requests for Production of Documents and Things, Request No 7.) Dunstan resisted this

request. (Ex. B, Plaintiffs Mike Harris and Jeff Dunstan’s Response to Defendant comScore,
Inc’s First Set of Requests for Production of Documents, Request No 7.) Additionally, Dunstan
produced a redacted anti-virus log, which redacted all entries except those purportedly related to
comScore’s software. (Ex. C, Bowland Decl. at ¶ 3.) On the basis of an agreement between the
parties wherein Dunstan’s attorneys agreed to provide certain registry information from
Dunstan’s computer and to address Defendant’s concerns regarding the redacted anti-virus log,
comScore withdrew its motion to compel an inspection of Dunstan’s computer. (Ex. D, May 18,
2012 Email from Swedlow to Givens.) Dunstan’s attorneys later represented to comScore’s
attorneys on June 29, 2012 that they planned on dismissing Count IV, which related to the
CFDPA, rather than producing the unredacted anti-virus logs. (Ex. C, Bowland Decl. at ¶ 4; Ex.
E, July 2, 2012 Ltr from Balbanian to Bowland.) After several months of discussions regarding
the form that the dismissal should take, including Dunstan’s counsel representing to the Court on
more than one occasion that he planned on dismissing the count, Dunstan changed course and
produced the unredacted anti-virus logs in lieu of amending its Complaint, as required by Judge
Holderman to dismiss Count IV. (Dkt. No. 125; Ex. F, September 21, 2012 Email from
Thomassen to Schapiro.) Dunstan’s counsel produced the unredacted anti-virus logs on
September 21, 2012. (Ex. F, September 21, 2012 Email from Thomassen to Schapiro.) The
unredacted logs list several non-comScore-related files detected on Dunstan’s computer on or
about September 22, 2010 with a threat level of “high.”1 (Ex. C, Bowland Decl. at ¶ 5.)
Meanwhile, comScore moved ahead with discovery based on Dunstan’s counsel’s
representations regarding the expected dismissal of Count IV and the unredacted anti-virus log.

1

Notably, the purported comScore-related entries on the log are all identified with
“Info & Potentially Unwanted Applications” or “medium” threat levels. None have a threat level
of “high.” (Ex. C, Bowland Decl. at ¶ 6.)

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In particular, counsel for comScore deposed Dunstan on August 8, 2012. During the deposition,
Dunstan testified that he had forgotten what information was redacted from his anti-virus log, but
that he thought it only listed the removal of cookies. (Ex. G, Aug. 8, 2012 Dep. of Dunstan at
38:11-40:22.)
II.

LEGAL STANDARD
Fed. R. Civ. P. 30(a) allows for parties to take a second deposition of a previously-

deposed deponent with leave of the Court. The Court “must grant leave to the extent consistent
with Rule 26(b)(2).” Fed. R. Civ. P. 30(a)(2). Fed. R. Civ. P. 26(b)(2) allows the Court to limit
discovery if the discovery is “unreasonably cumulative or duplicative, or can be obtained from
some other source that is more convenient, less burdensome, or less expensive;” “the party
seeking discovery has had ample opportunity to obtain the information;” or “the burden or
expense of the proposed discovery outweighs its likely benefit, considering the needs of the case,
the amount in controversy, the parties’ resources, the importance of the issues at stake in the
action, and the importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C).
Notably, information is relevant if it is “reasonably calculated to lead to the discovery of
admissible evidence.” Fed. R. Civ. P. 26(b)(1).
III.

ARGUMENT
comScore seeks leave to depose Dunstan a second time on topics related to the recently-

produced anti-virus logs that reveal Dunstan’s computer was likely infected by one or more
computer viruses. Dunstan’s delay in producing the unredacted anti-virus logs necessitate this
second deposition.

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A.

Dunstan’s Anti-Virus Logs and Related Testimony are Reasonably
Calculated to Lead to the Discovery of Admissible Evidence

Dunstan alleges that comScore’s software disabled his computer to such an extent that he
had to purchase anti-virus software to restore his computer, and proposes a “Dunstan subclass”
comprised of “All individuals and entities in the United States that have incurred costs in
removing the Surveillance Software.” (Dkt. No. 1, ¶¶ 71-74.) Whether or not Dunstan incurred
costs in removing comScore’s software, rather than correcting the effects of a computer virus,
goes directly to at least the certification issues of typicality (i.e. was Dunstan’s experience with
comScore’s software typical of other class members’ experiences), commonality, and
predominance. Thus, the anti-virus logs and Dunstan’s testimony regarding the logs are
reasonably calculated to lead to the discovery of admissible evidence.
B.

comScore Cannot Obtain Information Regarding Viruses on Dunstan’s
Computer from Any Source other than Dunstan

comScore can only obtain information regarding Dunstan’s anti-virus logs from the logs
and Dunstan himself. Counsel’s refusal to produce Dunstan’s computer for inspection leaves
only the logs and Dunstan as sources of information regarding potential viruses on Dunstan’s
computer. Moreover, Dunstan is the only person with knowledge of how his computer allegedly
malfunctioned, and what malicious files may have been on his system.
C.

Plaintiffs Failure to Produce the Anti-virus Logs in a Timely Manner
Precluded comScore from Obtaining Discovery Regarding the Same

To date, comScore’s efforts to procure the discovery regarding Dunstan’s anti-virus logs,
discovery to which it is entitled, have been thwarted by counsel’s initial redaction of the logs,
refusal to produce unredacted logs in favor of dismissing Count IV and all related allegations,
and counsel’s belated production of unredacted logs after completion of Dunstan’s deposition.
Dunstan was unable to provide comScore’s counsel information regarding the redacted portions

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of his anti-virus logs during his deposition due to the redaction of the logs, even though
comScore is entitled to such information. (Ex. G, Aug. 8, 2012 Dep. of Dunstan at 38:11-40:22.)

D.

Any Purported Burden or Prejudice to the Plaintiffs Is of Their Own Making
and Outweighed by the Prejudice to comScore Caused by Plaintiff’s Failure
to Timely Comply with Their Discovery Obligations

A second deposition of Dunstan is required due to the strategic decisions and delay of
Plaintiffs’ counsel. Any purported prejudice to Dunstan is significantly outweighed by
comScore’s need for information regarding the belatedly-produced antivirus logs.
IV.

CONCLUSION
Defendant respectfully requests the Court grant leave for comScore to depose Plaintiff

Dunstan for a second time.

DATED: October 12, 2012

QUINN EMANUEL URQUHART &
SULLIVAN, LLP

/s/ Robyn M. Bowland
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
Telephone: [phone]
Facsimile: [phone]

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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
MEMORANDUM IN SUPPORT OF ITS MOTION FOR LEAVE TO DEPOSE
PLAINTIFF JEFF DUNSTAN has been caused to be served on October 12, 2012 to all counsel
of record via the Court's ECF filing system.
_/s/ Robyn M. Bowland
Robyn Bowland

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