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)

EXHIBIT A

99999.77815/4738143.1

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

CASE NO. 1:11-cv-5807
Hon. James F. Holderman

Plaintiff,

Mag. Young B. Kim
v.
COMSCORE, INC., a Delaware corporation
Defendant.

DEFENDANTS’ FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS
TO MIKE HARRIS AND JEFF DUNSTAN
PLEASE TAKE NOTICE that, pursuant to Rules 26 and 34 of the Federal Rules of Civil
Procedure and Magistrate Judge Kim's Memorandum and Opinion dated March 2, 2012,
Defendant comScore, Inc. (“comScore”) requests that the Plaintiffs Mike Harris and Jeff
Dunstan (“Plaintiffs”) produce the following documents and things for inspection and copying
within thirty (30) days after the date of service of these Requests. All documents and things shall
be produced at the law offices of Quinn Emanuel Urquhart & Sullivan, LLP, 500 W. Madison
St., Suite 2450, Chicago, IL 60661.
PLEASE TAKE FURTHER NOTICE that you are required to serve a written response to
this request in the form and manner and within the time specified in Rule 34(b) of the Federal
Rules of Civil Procedure.
DEFINITIONS
A.

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As used herein, the term “Defendant” or “comScore” shall mean comScore, Inc.

B.

As used herein, the terms “Plaintiffs,” “You,” and “Your” shall mean Mike

Harris and/or Jeff Dunstan as identified in Paragraphs 20 and 21 of the Complaint, and
specifically shall include their agents and representatives (including consultants and attorneys).
C.

As used herein, the term “Parties” shall mean the terms “Plaintiffs” and

“Defendant,” as well as a party’s full or abbreviated name or a pronoun referring to a party mean
the party and, where applicable, its officers, directors, employees, partners, corporate parent,
subsidiaries, or affiliates. This definition is not intended to impose a discovery obligation on any
person who is not a party to the litigation.
D.

As used herein, the term “Complaint” shall mean the Complaint filed in the

above-captioned action on August 23, 2011.
E.

As used herein, the term “user profile” shall mean a record of user-specific data

created for each unique user logon within a computer’s operating system.
F.

The words “and” and “or,” as used herein, shall be construed either conjunctively

or disjunctively, as required by the context, to bring within the scope of these interrogatories any
information which might be deemed outside their scope by any other construction.
G.

Except as specifically provided herein, words imparting the singular shall include

the plural and vice versa.
H.

The term “Document” is defined to be synonymous in meaning and equal in

scope to the usage of this term in Fed. R. Civ. P. 34(a). A draft or non-identical copy is a
separate document within the meaning of this term. “Document” shall include, without
limitation, all written, graphic or otherwise recorded material, including without limitation,
microfilms or other film records or impressions, electronically stored information regardless of
the form of storage medium, tape recordings or computer cards, floppy disks or printouts, any
and all papers, photographs, films, recordings, memoranda, books, records, accounts,
communications, letters, telegrams, correspondence, notes of meetings, notes of conversations,
notes of telephone calls, inter-office memoranda or written communications of any nature,
recordings of conversations either in writings or upon any mechanical or electrical recording

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devices, including e-mail, notes, papers, reports, analyses, invoices, canceled checks or check
stubs, receipts, minutes of meetings, time sheets, diaries, desk calendars, ledgers, schedules,
licenses, financial statements, telephone bills, logs, and any differing versions of any of the
foregoing, whether so denominated, formal, informal or otherwise, as well as copies of the
foregoing which differ in any way, including by the addition of handwritten notations or other
written or printed matter of any nature, from the original. The foregoing specifically includes
information stored in a computer database and capable of being generated in documentary form,
such as electronic mail.
I.

“Communication” shall mean, without limitation, the transmittal of information

(in the form of facts, ideas, inquiries, or otherwise).
J.

As used herein, the term “Person” shall mean any natural person or any business,

legal, or governmental entity or association.
K.

“Identify” in relation to a person means to give, to the extent known, the person’s

full name, present or last known address, and, when referring to a natural person, the present or
last known place of employment. Once a person has been identified in accordance with this
subparagraph, only the name of that person need be listed in response to subsequent discovery
requesting the identification of that person.
L.

“Identify” in relation to an entity means to state the entity’s: (a) full name; (b)

state of incorporation; (c) current or last known business address; and (d) current or last known
telephone number. Once an entity has been identified properly, it shall be sufficient thereafter
when identifying that same entity to state the name only.
M.

“Identify” in relation to a Document means to state, to the extent known, the:
1.
2.

general subject matter;

3.

date of the document; and

4.

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type of document;

author(s), addressee(s), and recipient(s).

N.

“Identify” in relation to a Communication means: (a) to state the date of the

Communication; (b) to identify all Documents relating to such Communications; (c) to describe
the content and substance of the Communication; (d) to identify the persons who received or
were involved in the Communication; and (e) to identify the person or persons most
knowledgeable about the Communication.
O.

As used herein, the phrases “Refer To” or “Relate To” and “Referring To” or

“Relating To” shall mean all information, facts, and/or documents that directly, indirectly, or in
any other way support, negate, bear upon, touch upon, incorporate, affect, include, pertain to,
and/or are otherwise connected with the subject matter about which an interrogatory is being
propounded.
P.

The term “Concerning” means referring to, describing, evidencing, or

constituting.
Q.

As used herein, the term “Facts” shall have its ordinary meaning and, pursuant to

FEDERAL RULE OF CIVIL PROCEDURE 33(c), also shall mean related opinions, related contentions,
and the application of law to fact.
INSTRUCTIONS
A.

In answering the following Requests, furnish all available information, including

information in the possession, custody, or control of any of Plaintiffs’ attorneys, directors,
officers, agents, employees, representatives, associates, investigators or division affiliates,
partnerships, parents or subsidiaries, and persons under Plaintiffs’ control, who have the best
knowledge, not merely information known to Plaintiffs based on Plaintiffs’ own personal
knowledge. If You cannot fully respond to the following Requests after exercising due diligence
to secure the information requested thereby, so state, and specify the portion of each Request that
cannot be responded to fully and completely. In the latter event, state what efforts were made to
obtain the requested information and the facts relied upon that support the contention that the

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Request cannot be answered fully and completely; and state what knowledge, information or
belief Plaintiffs have concerning the unanswered portion of any such Requests.
B.

Electronically stored information as contemplated by Rule 34 of the Federal Rules

of Civil Procedure refers to all computer or electronically stored or generated data and
information and shall include all attachments to and enclosures with any requested item, to
which they are attached or with which they are enclosed, and all drafts thereof. Electronically
stored information includes information stored in any format and on any storage media,
including for example, but not limited to: hard disks; floppy disks; optical disks; flash memory
devices; and magnetic tape, whether fixed, portable or removable. The format of electronically
stored information includes for example, but is not limited to: word-processing documents;
electronic spreadsheets; electronic presentation documents; e-mail messages; image files; sound
files; material or information stored in databases, or accessible from databases, of whatever
description. Electronically stored information includes all associated metadata that is routinely
maintained or saved, which includes for example, but is not limited to: document title or name;
file name; date and time of creation; date and time of last edit; identity of author; identity of
owner; identities of editors; identities of recipients; changes; history of changes; e-mail header
information; and e-mail routing information. Electronically stored information includes for
example, but is not limited to: source code, object code, correspondence, telegrams, memoranda,
communications, minutes or records of meetings and conferences, lists of persons attending
meetings or conferences, summaries, records of conversations, drafts, notes, logs, invention
records and disclosures, translations, drawings, graphs, charts, photographs, sound recordings,
images, data compilations, computer records or printouts, specifications, reports, opinions,
summaries, agreements, forecasts, plan drawings, mask works, engineering drawings,
expressions or statements of policy, consultations, brochures, pamphlets, advertisements,
publications, circulars, trade letters, press releases, drafts of any documents, and revisions of
drafts of any documents. Unless the parties have specifically agreed otherwise in writing,
Defendant specifically requests that all electronically stored information be produced in the form

04692.62386/4646035.1

in which it is kept in the usual course of business, i.e., in native form. Specifically, all
electronically stored information that is a spreadsheet, a database, source code, object code,
software, HTML coded documents or other material designed to be read by an internet browser,
models of code, programmer’s notes, videos, streaming media, webcasts, software demos,
upgrade files and releases, and available downloads of or relating to the Accused
Instrumentalities shall be produced in their native form. Certain Documents, including Microsoft
Word documents and email, can be produced in searchable tiff format and do not need to be
produced in native format.
C.

Selection of Documents from the files and other sources and the numbering of

such Documents shall be performed in such a manner as to ensure that the source of each
Document may be determined, if necessary.
D.

File folders with tabs or labels or directories of files identifying Documents must

be produced intact with such Documents.
E.

Documents attached to each other shall not be separated.

F.

If You object to the production of any document on the grounds that it is

protected from disclosure by the attorney-client privilege, work-product doctrine, or any other
privilege, You are requested to Identify each Document for which the privilege is claimed and
give all information required by applicable case law, including but not limited to the following:
1.

the name of the writer, sender, or initiator of each copy of the Document;

2.

the name of the recipient, addressee, or party to whom any copy of the
Document was sent;

3.

the date of each copy of the Document, if any, or an estimate of its date;

4.

A statement of the basis for the claim of privilege; and

5.

A description of the Document sufficient for the Court to rule on the
applicability and appropriateness of the claimed privilege.

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G.

To the extent that You object to any part of the following requests (or definitions

and instructions applicable thereto), produce the Documents responsive to that part of the request
to which you do not object, and state specifically each ground upon which objection is made.
H.

In the event that any Document requested herein has been lost, discarded,

destroyed or transferred beyond the Plaintiffs’ control, Identify such Document by providing as
much of the following information as is possible: the type of Document or thing; the date of the
Document; the approximate date it was lost, discarded, destroyed or transferred; the reason or
reasons for disposing of the Document; the identity of all Persons authorizing or having
knowledge of the circumstances surrounding the disposal of the Document; the identity of the
Person(s) who lost, discarded, destroyed or transferred the Document; and the identity of all
Persons who have knowledge of the Document’s contents.
I.

It is Your obligation to provide all responsive Documents in Your possession,

custody or control. This includes Documents in the possession of Your attorneys, agents,
representatives, other outside service providers and Persons employed by You or Your attorneys.
J.

The request for production of Documents herein shall be deemed continuous up to

and following the date of your production such that any Document requested herein which is
either discovered by You or comes within Your possession, custody, or control subsequent to
your initial production but prior to the final conclusion of this case should be produced
immediately upon its discovery or receipt.

REQUESTS FOR PRODUCTION OF DOCUMENTS
REQUEST FOR PRODUCTION NO. 1:
All Documents reflecting advertising, marketing, or other statements that You reviewed
in connection with Your download and installation of comScore Software.

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REQUEST FOR PRODUCTION NO. 2:
All Documents Referring or Relating To the download and installation to Your computer
of third-party software You contend was bundled with comScore Software, including Documents
showing the date and time of download and website information from which the third-party
software was downloaded.
REQUEST FOR PRODUCTION NO. 3:
Documents sufficient to show that comScore Software was downloaded and installed on
Your computer, including Documents showing the date and time of download, the website from
which comScore Software was downloaded, and Documents Referring or Relating To the thirdparty software you contend was bundled with comScore Software.
REQUEST FOR PRODUCTION NO. 4:
Documents sufficient to show the computer system configuration of Your computer at the
time You contend the comScore Software was downloaded and installed on Your computer,
including information regarding the operating system, processor, memory, display, hard drive,
manufacturer, and model number of the computer.
REQUEST FOR PRODUCTION NO. 5:
Documents sufficient to show the number of users and related user profiles for all users
of the computer you contend were affected by comScore Software.
REQUEST FOR PRODUCTION NO. 6:
Documents sufficient to show the internet service provider and IP addresses for the
computer you allege was affected by comScore Software.

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REQUEST FOR PRODUCTION NO. 7:
Produce for Inspection the computer or computers You contend were affected by
comScore Software, the Inspection including making the computer or computers' hard drives
available for the making of a forensic copy.
REQUEST FOR PRODUCTION NO. 8:
All Documents Referring or Relating To any investigation conducted by You Related To
the removal of comScore Software from Your computer, including Documents showing the
number of hours You spent researching this topic, the websites You visited, the information You
gathered, viewed, and/or printed, etc.
REQUEST FOR PRODUCTION NO. 9:
All Documents Referring or Relating To Your attempts to remove comScore Software
from Your computer.
REQUEST FOR PRODUCTION NO. 10:
All Documents Referring or Relating To Mr. Harris’ download and installation to his
computer of the free screensaver software Referred To in Paragraph 67 of the Complaint.
REQUEST FOR PRODUCTION NO. 11:
All Documents Referring or Relating To any end-user agreements, terms or conditions,
terms of service, or any other agreement presented to Mr. Harris during download and/or
installation of the software Referred To in Paragraph 67 of the Complaint.
REQUEST FOR PRODUCTION NO. 12:
All Documents Referring or Relating To Mr. Dunstan’s download and installation to his
computer of the free greeting card template software Referred To in Paragraph 70 of the
Complaint.

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REQUEST FOR PRODUCTION NO. 13:
All Documents Referring or Relating To any end-user agreements, terms or conditions,
terms of service, or any other agreement presented to Mr. Dunstan during download and/or
installation of software Referred To in Paragraph 70 of the Complaint.
REQUEST FOR PRODUCTION NO. 14:
Documents sufficient to support Mr. Dunstan’s contention in Paragraph 71 of the
Complaint that his “firewall detected the re-routing of his Internet traffic to comScore servers,
and in response, effectively disabled his computer from accessing the Internet.”
REQUEST FOR PRODUCTION NO. 15:
All Documents Referring or Relating To Mr. Dunstan’s alleged use of antivirus software
to remove comScore Software from his computer, including receipts showing purchase of such
software, Documents showing installation of such software, and Documents showing effective
removal of comScore Software from Mr. Dunstan’s computer through use of said antivirus
software.
REQUEST FOR PRODUCTION NO. 16:
All Documents Referring, Relating To, or supporting Your contention that You did not
agree to comScore’s terms and conditions of service.
REQUEST FOR PRODUCTION NO. 17:
All Documents Referring, Relating To, or supporting Your belief that Your personal
information was collected by comScore Software.
REQUEST FOR PRODUCTION NO. 18:
All Documents Referring, Relating To, or supporting Your allegation that Your personal
information was sold by comScore to a third-party.

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REQUEST FOR PRODUCTION NO. 19:
All Documents showing that a root certificate from comScore was installed on Your
computer and remained installed after comScore Software was removed.
REQUEST FOR PRODUCTION NO. 20:
All Documents showing that comScore Software scanned every file on Your computer.
REQUEST FOR PRODUCTION NO. 21:
All Documents showing that comScore Software monitored Your internet activity.
REQUEST FOR PRODUCTION NO. 22:
All Documents that Refer Or Relate To any repair or diagnostic performed by You or at
Your request or on Your behalf on any computer you contend was affected by comScore
Software.
REQUEST FOR PRODUCTION NO. 23:
All Documents Referring To, Relating To, or showing real economic damages to You
caused by comScore’s alleged conducted.
REQUEST FOR PRODUCTION NO. 24:
All Documents Referring To, Relating To, or supporting the monetary damages You
claim were caused to You by the conduct alleged in the Complaint.
REQUEST FOR PRODUCTION NO. 25:
All advertisements or solicitations by attorneys or their agents relating and/or leading to
Your service as a plaintiff in this lawsuit.
REQUEST FOR PRODUCTION NO. 26:
All Documents that Refer or Relate to lawyers or law firms that You considered retaining
for this action.

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REQUEST FOR PRODUCTION NO. 27:
All Communications between You and Your attorneys of record prior to Your retention
of them for representation in this action.
REQUEST FOR PRODUCTION NO. 28:
All non-privileged Documents that constitute or Refer or Relate To retention agreement(s)
between You and Your attorneys of record in this action.
REQUEST FOR PRODUCTION NO. 29:
All Documents that Refer or Relate To any arrangements, agreements, or understandings
You may have concerning any compensation You have received or may receive for serving as a
representative plaintiff in this litigation.
REQUEST FOR PRODUCTION NO. 30:
All Documents Relating To any member of the class alleged in Paragraph 74 of the
Complaint including, but not limited to, any Communications with or about any members of the
alleged class.
REQUEST FOR PRODUCTION NO. 31:
All Communications with any class member or potential class member in this action.
REQUEST FOR PRODUCTION NO. 32:
Documents sufficient to Identify any class member or potential class member in this
action.
REQUEST FOR PRODUCTION NO. 33:
Documents sufficient to show Your educational background, work history, and training,
such as Your curriculum vitae or resume.

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REQUEST FOR PRODUCTION NO. 34:
All Documents that Refer or Relate To any lawsuits, excluding this action, in which You
have sought to be a class representative for a putative class action. For each such lawsuit,
include documents sufficient to determine whether you were appointed to serve as a class
representative, the nature of each claim, the name and address of the party against whom the
claim was made, the names and addresses of legal counsel for the parties, the number and nature
of any lawsuit filed, the court in which the action was filed, and the final disposition.
REQUEST FOR PRODUCTION NO. 35:
All Documents Relating To Your responses to any other discovery served in this action
including, but not limited to, Documents consulted, cited, or relied on by you in providing your
responses.
REQUEST FOR PRODUCTION NO. 36:
All Documents cited, quoted, referred to, discussed, or relied upon in the Complaint.

04692.62386/4646035.1

Date: March 9, 2012

Respectfully submitted,

/s/ Andrew H. Schapiro

Andrew H. Schapiro
Stephen A. Swedlow
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
500 W. Madison St., Ste 2450
Chicago, IL 60661
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

Attorneys for comScore, Inc.

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CERTIFICATE OF SERVICE
I, Robyn Bowland, hereby certify that this document has been served via electronic mail
to counsel for Plaintiffs Mike Harris and Jeff Dunstan on March 9, 2012:

Dated: March 9, 2012

04692.62386/4646035.1

/s/ Robyn M. Bowland
Robyn Bowland