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 B

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

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 1:11-cv-5807
[Hon. James F. Holderman]
[Magistrate Judge Young B. Kim]

PLAINTIFFS MIKE HARRIS AND JEFF DUNSTAN’S RESPONSES
TO DEFENDANT COMSCORE, INC.’S
FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS
Plaintiffs Mike Harris (“Harris”) and Jeff Dunstan (“Dunstan”) (collectively, “Plaintiffs”)
respond to Defendant comScore, Inc.’s (“comScore” or “Defendant”) First Set of Requests for
Production of Documents as follows:
I. Document Requests
1.
All Documents reflecting advertising, marketing, or other statements that You
reviewed in connection with Your download and installation of comScore Software.
RESPONSE: Plaintiffs object to this Request on the basis that it is overly broad (it
requires Plaintiffs to identify and produce potentially dozens of individual webpages that they
viewed while browsing the World Wide Web (“WWW”) for software in 2010), unduly
burdensome (it seeks information that was ephemerally stored on their computers in 2010), and
seeks information that is not relevant or reasonably calculated to lead to the discovery of
admissible evidence (the individual webpages of comScore’s bundling partners that the Plaintiffs
happened to have viewed in search of software is irrelevant to any class certification issues).
Plaintiffs further object to this Request on the basis that the information sought is within

1

Defendant’s possession, custody or control, and is easily discoverable from Defendant’s own
records or the records of its agents or bundling partners (through the bundling partners’ web
server logs, comScore’s server logs, or both).
Subject to and without waiving these objections, Plaintiffs state that the documents
bearing Bates Nos. Harris-Dunstan 0001 – Harris-Dunstan 0007 are responsive to this Request.
*

*

*

*

*

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.
RESPONSE: Plaintiffs object to this Request on the basis that it is overly broad (it
requires Plaintiffs to identify potentially dozens of individual webpages that they viewed while
browsing the WWW in 2010) and unduly burdensome (it seeks information that was
ephemerally stored on their computers in 2010). Plaintiffs further object to this Request on the
basis that the information sought is within Defendant’s possession, custody or control, and is
easily discoverable from within Defendant’s own records or the records of its agents or bundling
partners (through the bundling partners’ web server logs, comScore’s server logs, or both).
Subject to and without waiving these objections, Plaintiffs state that the document
bearing Bates Nos. Harris-Dunstan 0551 and 0558 are responsive to this Request.
*

*

*

*

*

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 third-party software you contend was bundled with comScore Software.
RESPONSE: Plaintiffs object to this Request on the basis that it is overly broad (it
requires Plaintiffs to identify potentially dozens of individual webpages that they viewed while
browsing the WWW in 2010) and unduly burdensome (it seeks information that was

2

ephemerally stored on their computers in 2010). Plaintiffs further object to this Request on the
basis that the information sought is within Defendant’s possession, custody or control, and is
easily discoverable from Defendant’s own records or the records of its agents or bundling
partners (through the bundling partners’ web server logs, comScore’s server logs, or both).
Subject to and without waiving these objections, Plaintiffs state that the document
produced in response to Request No. 2 is responsive to this Request.
*

*

*

*

*

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.
RESPONSE: Plaintiffs object to this Request on the basis that it seeks information that is
not relevant or reasonably calculated to lead to the discovery of admissible evidence, and
because it is unduly burdensome (it seeks a snapshot of Plaintiffs’ computers at a precise
moment in 2010).
Subject to and without waiving these objections, Plaintiffs state that they have no
documents responsive to this Request.
*

*

*

*

*

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.
RESPONSE: Plaintiffs object to this Request on the basis that it is unduly burdensome
(it requires Plaintiffs to identify all individuals who used their computers over two (2) years ago)
and is duplicative of other Requests. Plaintiffs further object on the basis that the terms “users”
and “user profiles” are not defined and therefore, are vague and ambiguous.
Subject to and without waiving these objections, Plaintiffs state that they have no
documents responsive to this Request.

3

*

*

*

*

*

6.
Documents sufficient to show the internet service provider and IP address for the
computer you allege was affected by comScore Software.
RESPONSE: Plaintiffs object to this Request on the basis that it seeks information that is
not relevant or reasonably calculated to lead to the discovery of admissible evidence, is within
Defendant’s possession, custody or control, and is easily discoverable from Defendant’s own
records or the records of its agents or bundling partners, and because it is unduly burdensome (it
seeks the IP addresses used by Plaintiffs at a precise moment in 2010).
Subject to and without waiving these objections, Plaintiffs state that the documents
bearing Bates Nos. Harris-Dunstan 0008 – Harris-Dunstan 0009 are responsive to this Request.
*

*

*

*

*

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.
RESPONSE: Plaintiffs object to this Request on the basis that it seeks to harass the
Plaintiffs, is overly broad (it requires Plaintiff Dunstan to produce his entire computer system (in
the summer of 2010, Plaintiff Harris discarded the computer he used to download the
screensaver bundled with comScore’s software)), unduly burdensome (it requires Plaintiff
Dunstan to relinquish use of his computer), and seeks information that is not relevant or
reasonably calculated to lead to the discovery of admissible evidence (the vast majority of
information contained on Plaintiff Dunstan’s hard drive is not relevant to the class certification
analysis and the information sought is within Defendant’s possession, custody or control, and is
easily discoverable from Defendant’s own records or the records of its agents or bundling
partners). Plaintiff Dunstan further objects to this Request to the extent it seeks disclosure of
information protected by the attorney client privilege and the attorney work product doctrine.

4

*

*

*

*

*

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.
RESPONSE: Plaintiffs object to this Request on the basis that it is overly broad (it
requires Plaintiffs to produce potentially dozens of webpages that they viewed as part of their
investigation into the removal of the comScore software on their computers in 2010) and unduly
burdensome (it seeks information that was ephemerally stored on their computers in 2010).
Subject to and without waiving these objections, Plaintiffs state that the documents
produced in response to Request No. 2 are responsive to this Request.
*

*

*

*

*

9.
All Documents Referring or Relating To Your attempts to remove comScore
Software from Your computer.
RESPONSE: Plaintiffs object to this Request on the basis that it is overly broad (it
requires Plaintiffs to produce potentially hundreds of webpages that they viewed as part of their
investigation into the removal of the comScore software on their computers in 2010) and unduly
burdensome (it seeks information that was ephemerally stored on their computers in 2010).
Subject to and without waiving these objections, Plaintiffs state that the documents
produced in response to Request No. 2 are responsive to this Request. Plaintiffs’ investigation
continues and they reserve the right to supplement their response to this Request as appropriate.
*

*

*

*

*

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.
RESPONSE: Plaintiffs object to this Request on the basis that it is overly broad (it
requires Plaintiff Harris to identify potentially dozens of individual webpages that he viewed
while browsing the WWW in 2010) and unduly burdensome (it seeks information that was
5

ephemerally stored on his (now discarded) computer in 2010).
Subject to and without waiving these objections, Plaintiffs state that the documents
produced in response to Request No. 2 are responsive to this Request.
*

*

*

*

*

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.
RESPONSE: Plaintiffs object to this Request on the basis that it is unduly burdensome
(it seeks information that, by comScore’s own admission, could only have been briefly displayed
to Plaintiff during the installation process in 2010, if at all). Plaintiff further objects to this
Request on the basis that the information sought is within Defendant’s possession, custody or
control, and is easily discoverable from Defendant’s own records or the records of its agents or
bundling partners (as comScore purports to obtain consent from potential panelists, ostensibly
records of the same should be in its possession).
Subject to and without waiving these objections, Plaintiffs state that they have no
documents responsive to this Request.
*

*

*

*

*

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.
RESPONSE: Plaintiff Dunstan objects to this Request on the basis that it is overly broad
(it requires Plaintiff to identify potentially dozens of individual webpages that he viewed while
browsing the WWW in 2010) and unduly burdensome (it seeks information that was
ephemerally stored on his computer in 2010).
Subject to and without waiving these objections, Plaintiffs state that the documents
produced in response to Request No. 2 are responsive to this request.

6

*

*

*

*

*

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.
RESPONSE: Plaintiffs object to this Request on the basis that it is unduly burdensome
(it seeks information that, by comScore’s own admission, could only have been briefly displayed
to Plaintiff during the installation process in 2010, if at all). Plaintiff further objects to this
Request on the basis that the information sought is within Defendant’s possession, custody or
control, and is easily discoverable from Defendant’s own records or the records of its agents or
bundling partners (as comScore purports to obtain consent from potential panelists, ostensibly
records of such should be in its possession).
Subject to and without waiving these objections, Plaintiffs state that they have no
documents responsive to this Request.
*

*

*

*

*

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.”
RESPONSE: Plaintiffs object to this Request on the basis that it is unduly burdensome
(it requires Plaintiff Dunstan to re-create a temporary system environment that existed on his
computer in 2010).
Subject to and without waiving these objections, Plaintiffs state that they have no
documents responsive to this Request.
*

*

*

*

*

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.

7

RESPONSE: Plaintiffs state that Bates Nos. Harris-Dunstan 0010 – Harris-Dunstan
0015 are responsive to this Request.
*

*

*

*

*

16.
All Documents Referring, Relating To, or supporting Your contention that You
did not agree to comScore’s terms and conditions of service.
RESPONSE: Plaintiffs object to this Request on the basis that it is unduly burdensome
(it seeks information that, by comScore’s own admission, could only have been briefly displayed
to Plaintiff during the installation process in 2010). Plaintiffs further object to this Request on the
basis that the information sought is within Defendant’s possession, custody or control, and is
easily discoverable from Defendant’s own records or the records of its agents or bundling
partners (as comScore purports to obtain consent from potential panelists, ostensibly records of
such should exist within its possession).
Subject to and without waiving these objections, Plaintiffs state that they have no
documents responsive to this Request.
*

*

*

*

*

17.
All Documents Referring, Relating To, or supporting Your belief that Your
personal information was collected by comScore Software.
RESPONSE: Plaintiffs object to this Request to the extent it seeks disclosure of
information protected by the attorney client privilege and the attorney work product doctrine.
Plaintiffs further object to this Request on the basis that the information sought is within
Defendant’s possession, custody or control, and is easily discoverable from Defendant’s own
records or the records of its agents or bundling partners (comScore utilizes sophisticated
technologies capable of examining information collected from panelists’ computers).
Subject to and without waiving these objections, Plaintiffs state that the documents
bearing Bates Nos. Harris-Dunstan 0016 – Harris-Dunstan 0087 are responsive to this Request.

8

Plaintiffs further state that the documents produced by comScore identifying the entities to which
it sells consumer information are also responsive to this Request.
*

*

*

*

*

18.
All Documents Referring, Relating To, or supporting Your allegation that Your
personal information was sold by comScore to a third-party.
RESPONSE: Plaintiffs object to this Request on the basis that the information sought is
within Defendant’s possession, custody or control, and is easily discoverable from Defendant’s
own records or the records of its agents or bundling partners (comScore is knowledgeable about
the exact types of information sold to third-parties).
Subject to and without waiving these objections, Plaintiffs state that the documents
bearing Bates Nos. Harris-Dunstan 0016 – Harris-Dunstan 0087 are responsive to this Request.
Plaintiffs further state that the documents produced by comScore identifying the entities to which
it sells consumer information are also responsive to this Request.
*

*

*

*

*

19.
All Documents showing that a root certificate from comScore was installed on
Your computer and remained installed after comScore Software was removed.
RESPONSE: Plaintiffs object to this Request to the extent it seeks information protected
by the attorney client privilege and the attorney work product doctrine. Plaintiffs further object
to this Request on the basis that the information sought is within Defendant’s possession,
custody or control, and is easily discoverable from Defendant’s own records or the records of its
agents or bundling partners. Plaintiffs also object to this Request on the basis that it seeks
information that is not relevant or reasonably calculated to lead to the discovery of admissible
evidence.
*
20.
computer.

*

*

*

*

All Documents showing that comScore Software scanned every file on Your

9

RESPONSE: Plaintiffs object to this Request to the extent it seeks disclosure of
information protected by the attorney client privilege and the attorney work product doctrine.
Plaintiffs also object to this Request on the basis that the information sought is within
Defendant’s possession, custody or control, and is easily discoverable from Defendant’s own
records or the records of its agents or bundling partners (comScore utilizes sophisticated
technologies capable of examining information collected from panelists’ computers). Plaintiffs
also object to this Request on the basis that it seeks information that is not relevant or reasonably
calculated to lead to the discovery of admissible evidence.
*
21.
activity.

*

*

*

*

All Documents showing that comScore Software monitored Your internet

RESPONSE: Plaintiffs object to this Request to the extent it seeks disclosure of
information protected by the attorney client privilege and the attorney work product doctrine.
Plaintiffs also object to this Request on the basis that the information sought is within
Defendant’s possession, custody or control, and is easily discoverable from Defendant’s own
records or the records of its agents or bundling partners (comScore utilizes sophisticated
technologies capable of examining information collected from panelists’ computers).
*

*

*

*

*

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.
RESPONSE: Plaintiffs state that the documents produced in Plaintiffs’ Response to
Request No. 15 are responsive to this Request.
*

*

*

*

*

23.
All Documents Referring, Relating To, or showing real economic damages to
You caused by comScore’s alleged conducted [sic].
10

RESPONSE: Plaintiffs object to this Request to the extent that it calls for a legal
conclusion for which no response is required.
Subject to and without waiving these objections, Plaintiffs state that the documents
produced in Plaintiffs’ Response to Request No. 15 are responsive to this Request.
*

*

*

*

*

24.
All Documents Referring, Relating To, or supporting the monetary damages You
claim were caused to You by the conduct alleged in the Complaint.
RESPONSE: Plaintiffs state that the documents produced in Plaintiffs’ Response to
Request No. 15 are responsive to this Request.
*

*

*

*

*

25.
All advertisements or solicitations by attorneys or their agents relating and/or
leading to Your service as a plaintiff in this lawsuit.
RESPONSE: Plaintiffs object to this Request to the extent it seeks disclosure of
information protected by the attorney client privilege and the attorney work product doctrine.
Subject to and without waiving these objections, Plaintiffs state that the documents
bearing Bates Nos. Harris-Dunstan 0088 – Harris-Dunstan 0089 are responsive to this Request.
*

*

*

*

*

26.
All Documents that Refer or Relate to lawyers or law firms that You considered
retaining for this action.
RESPONSE: Plaintiffs object to this Request to the extent it seeks disclosure of
information protected by the attorney client privilege and the attorney work product doctrine.
Subject to and without waiving these objections, Subject to and without waiving these
objections, Plaintiffs state that the documents bearing Bates Nos. Harris-Dunstan 0088 – HarrisDunstan 0089 are responsive to this Request.
*

*

*

11

*

*

27.
All Communications between You and Your attorneys of record prior to Your
retention of them for representation in this action.
RESPONSE: Plaintiffs object to this Request to the extent it seeks disclosure of
information protected by the attorney client privilege and the attorney work product doctrine.
Plaintiffs state that Bates Nos. Harris-Dunstan 0090 – Harris-Dunstan 0093 are responsive to this
Request.
*

*

*

*

*

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.
RESPONSE: Plaintiffs object to this Request to the extent it seeks disclosure of
information protected by the attorney client privilege and the attorney work product doctrine.
Subject to and without waiving these objections, Plaintiffs state that the documents
produced in response to Request No. 27 are responsive to this Request.
*

*

*

*

*

29.
All Documents that Refer or Relate To any arrangements, agreements, or
understandings You may have concerning any compensation that You have received or may
receive for serving as a representative plaintiff in this litigation.
RESPONSE: Plaintiffs object to this Request to the extent it seeks disclosure of
information protected by the attorney client privilege and the attorney work product doctrine.
Subject to and without waiving these objections, Plaintiffs state that the documents
produced in response to Request No. 27 are responsive to this Request.
*

*

*

*

*

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.
RESPONSE: Plaintiffs object to this Request to the extent it seeks disclosure of
information protected by the attorney client privilege, the attorney work product doctrine, or the

12

common interest doctrine. Plaintiffs further object to this Request on the basis that it seeks
information that is not relevant or reasonably calculated to lead to the discovery of admissible
evidence (information regarding Plaintiffs’ communications with absent class members is not
relevant to the class certification analysis).
Subject to and without waiving these objections, Plaintiffs state that they have no
documents responsive to this Request.
*
action.

31.

*

*

*

*

All Communications with any class member or potential class member in this

RESPONSE: Plaintiffs object to this Request on the basis that it seeks disclosure of
information protected by the attorney client privilege, the attorney work product doctrine, or the
common interest doctrine. Plaintiffs further object to this Request on the basis that it seeks
information that is not relevant or reasonably calculated to lead to the discovery of admissible
evidence (information regarding Plaintiffs’ communications with absent class members is not
relevant to the class certification analysis).
Subject to and without waiving these objections, Plaintiffs state that they have no
documents responsive to this Request.
*
32.
this action.

*

*

*

*

Documents sufficient to Identify any class member or potential class member in

RESPONSE: Plaintiffs object to this Request on the basis that the information sought is
within Defendant’s possession, custody or control, and is easily discoverable from Defendant’s
own records or the records of its agents or bundling partners (presumably comScore possesses
information identifying every active and former panelist). Plaintiffs further object to this
Request on the basis that it is premature inasmuch as Plaintiffs have not yet moved for class

13

certification, class discovery is not completed, the class discovery cut-off has not passed, and
comScore has yet to produce documents for inspection.
Subject to and without waiving these objections, Plaintiffs state that they have no
documents responsive to this Request.
*

*

*

*

*

33.
Documents sufficient to show Your educational background, work history, and
training such as Your curriculum vitae or resume.
RESPONSE: Plaintiffs object to this Request on the basis that it seeks information that is
not relevant or reasonably calculated to lead to the discovery of admissible evidence.
Subject to and without waiving this objection, Plaintiffs state that Bates Nos. HarrisDunstan 0094 – Harris-Dunstan 0097 are responsive to this Request.
*

*

*

*

*

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, including 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.
RESPONSE: Plaintiffs state that they have no documents responsive to this Request.
*

*

*

*

*

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.
RESPONSE: Plaintiffs object to this Request on the basis that it is overly broad, unduly
burdensome, and seeks information that is not relevant or reasonably calculated to lead to the
discovery of admissible evidence. Plaintiffs further object to this Request to the extent it seeks
disclosure of information protected by the attorney client privilege and the attorney work product
doctrine. Plaintiffs also object to this Request on the basis that it is duplicative of other requests

14

(Request Nos. 1, 2, 3, 6, 8, 9, 10, 12, 14, 15, 16, 18, 22, 23 and 36).
Subject to and without waiving these objections, Plaintiffs state that the documents
produced in response to Request Nos. 2 and 15 are responsive to this Request.
*
36.
Complaint.

*

*

*

*

All Documents cited, quoted, referred to, discussed, or relied upon in the

RESPONSE: Plaintiffs object to this Request on the basis that it seeks disclosure of
information protected by the attorney client privilege and the attorney work product doctrine.
Plaintiffs further object to this Request on the basis that it is overly broad and unduly
burdensome, is duplicative of other requests (Request Nos. 1, 2, 3, 6, 8, 9, 10, 12, 14, 15, 16, 18,
22, 23 and 35) and it seeks information that is not relevant or reasonably calculated to lead to the
discovery of admissible evidence.
Subject to and without waiving these objections, Plaintiffs state that Bates Nos. HarrisDunstan 0098 – Harris-Dunstan 0550 are responsive to this Request.
Dated: April 9, 2012

MIKE HARRIS AND JEFF DUNSTAN,
individually, and on behalf of all others similarly
situated,
By: /s/ Chandler R. Givens____________________
One of Their Attorneys

Jay Edelson ([e-mail])
Rafey S. Balabanian ([e-mail])
Ari J. Scharg ([e-mail])
Chandler R. Givens ([e-mail])
EDELSON MCGUIRE LLC
350 North LaSalle Street, Suite 1300
Chicago, Illinois 60654
Tel: [phone]
Fax: [phone]

15

CERTIFICATE OF SERVICE
I, Chandler R. Givens, an attorney, hereby certify that on April 9, 2012, I served the
above and foregoing Plaintiffs Mike Harris’s and Jeff Dunstan’s Responses to Defendant
comScore, Inc.’s First Set of Requests for Production of Documents by causing true and
accurate copies of such paper to be transmitted to the persons shown below via electronic mail.
Paul F. Stack
Mark William Wallin
STACK & O’CONNOR CHARTERED
140 S. Dearborn St., Ste. 411
Chicago, IL 60603
[e-mail]
[e-mail]
Andrew H. Schapiro
Stephen A. Swedlow

QUINN EMANUEL URQUHART & SULLIVAN, LLP

500 W. Madison St., Ste. 2450
Chicago, IL 60661
[e-mail]
[e-mail]

Attorneys for Defendant comScore, Inc.

/s/ Chandler R. Givens
Chandler R. Givens

16