Dunstan et al v. comScore, Inc.

Filing 150

MOTION by Plaintiffs Jeff Dunstan, Mike Harris to seal document (Attachments: # 1 Declaration of Rafey S. Balabanian in Support of Motion to File Documents Under Seal)(Balabanian, Rafey)

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,

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

Case No. 1:11-5807
Hon. James F. Holderman
Magistrate Judge Kim

PLAINTIFFS’ MOTION TO FILE DOCUMENTS UNDER SEAL
Plaintiffs Mike Harris and Jeff Dunstan (“Plaintiffs”), pursuant to Local Rules 5.8 and
26.2, respectfully move the Court for an Order granting them leave to file certain documents
under seal, either in whole or in part, in conjunction with Plaintiffs’ Memorandum in Support of
their Supplemental Motion for Class Certification. In support of this Motion, Plaintiffs state as
follows:
1.

On January 15, 2013, concurrently with the filing of this Motion, Plaintiffs filed

their Memorandum in Support of their Supplemental Motion for Class Certification (the
“Memorandum”) and the Declaration of Jay Edelson in support of the Memorandum (the
“Edelson Declaration”).
2.

Attached to the Edelson Declaration, among other exhibits, are the following

documents that Defendant comScore, Inc. (“comScore”) has marked “CONFIDENTIAL—
ATTORNEYS’ EYES ONLY” pursuant to the January 20, 2012 Protective Order entered by
Magistrate Judge Kim in this case (the “Protective Order”) (Dkt. No. 72):
a.

Exhibit A: Transcript excerpts from the Rule 30(b)(6) Deposition of

comScore’s Chief Technology Officer and Rule 30(b)(6) designee, Michael Brown;
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b.

Exhibit K: Transcript excerpts from the Deposition of comScore’s

Director of Software Engineering, Randall Lynn McCaskill;
c.

Exhibit L: Transcript excerpts from the Deposition of comScore’s Senior

Vice President of Technology, Yvonne Bigbee;
d.

Exhibit M: Portions of comScore’s internal “Wiki” document relating to

the coding and operation of its tracking software, produced at Bates Nos. CS0015923–24;
and
e.

Exhibit N: Transcript excerpts from the Deposition of comScore’s Quality

Assurance Manager, Michiko Avantika Chand.
(Balabanian Decl. at ¶¶ 2–3.)
3.

The Protective Order prohibits either Party from publicly disclosing documents

marked as “CONFIDENTIAL,” “CONFIDENTIAL⎯ATTORNEYS’ EYES ONLY,” or
“Highly Confidential⎯Source Code.” (Dkt. No. 72, ¶¶ 7, 9.)
4.

On January 15, 2013, Plaintiffs’ counsel conferred with comScore’s counsel

regarding the confidentiality of the above documents, and provided, via email, the actual exhibits
they planned to attach to the Edelson Declaration that included or otherwise referenced
documents that had been marked as “CONFIDENTIAL—ATTORNEYS’ EYES ONLY” by
comScore in this case. (Balabanian Decl. at ¶ 3.)
5.

In response, comScore’s counsel informed Plaintiffs’ counsel that only Exhibit M,

described supra, ¶ 2(d), and comScore’s Supplemental Response No. 7 to Plaintiff Harris’s First
Set of Interrogatories—which responds to Harris’s request that comScore “IDENTIFY the total
number of PANELISTS (broken down by year, and distinguishing, where applicable, between

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PC PANELISTS and MAC PANELISTS)” and is included as a part of Exhibit B to the Edelson
Declaration—“need to be filed under seal.” (Balabanian Decl. at ¶ 4.)
6.

Accordingly, and pursuant to comScore’s counsel’s instruction and the Protective

Order entered in this case, Plaintiffs seek leave to file Exhibit M, described supra, ¶ 2(d), entirely
under seal and Exhibit B, described supra, ¶ 5, partially under seal.
7.

Additionally, because Plaintiffs—after conferring with comScore’s counsel—

included an additional page from the Brown Deposition Transcript in Exhibit A (which, like the
others, is marked CONFIDENTIAL—ATTORNEYS’ EYES ONLY), Plaintiffs seek leave to file
Exhibit A, described supra, ¶ 2(a), partially under seal. (Balabanian Decl. at ¶ 6.)
8.

Finally, because the Edelson Declaration discusses—in limited detail—the

contents of Exhibit M and because the Memorandum references the contents of comScore’s
Supplemental Response No. 7 to Plaintiff Harris’s First Set of Interrogatories, Plaintiffs seek
leave to file the Edelson Declaration and Memorandum partially under seal as well.
WHEREFORE, Plaintiffs respectfully move the Court, pursuant to Local Rules 5.8 and
26.2 for an Order:
(i)

Granting them leave to file partially under seal (1) the Declaration of Jay Edelson
submitted in support of Plaintiffs’ Supplemental Motion for Class Certification,
(2) Plaintiffs’ Memorandum in Support of Plaintiffs’ Supplement Motion for
Class Certification, and (3) Exhibits A and B to the Edelson Declaration, also
submitted in support of Plaintiffs’ Motion for Class Certification;

(ii)

Granting them leave to file entirely under seal Exhibit M to the Declaration of Jay
Edelson submitted in support of Plaintiffs’ Motion for Class Certification; and

(iii)

Awarding such other and further relief as the Court deems equitable and just.

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Dated: January 15, 2013

Respectfully submitted,
MIKE HARRIS AND JEFF DUNSTAN,
INDIVIDUALLY AND ON BEHALF OF A CLASS OF
SIMILARLY SITUATED INDIVIDUALS,

By: /s/ Rafey S. Balabanian
One of Plaintiffs’ Attorneys
Jay Edelson
Rafey S. Balabanian
Ari J. Scharg
Chandler R. Givens
Benjamin S. Thomassen
EDELSON MCGUIRE, LLC
350 North LaSalle, Suite 1300
Chicago, Illinois 60654
Telephone: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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CERTIFICATE OF SERVICE
I, Rafey S. Balabanian, an attorney, certify that on January 15, 2013, I served the above
and foregoing Plaintiffs’ Motion to File Documents Under Seal, by causing true and accurate
copies of such paper to be filed and transmitted to all counsel of record via the Court’s CM/ECF
electronic filing system, and further by causing true and accurate copies of such paper to be
transmitted to all counsel of record via electronic mail, all on this 15th day of January 2013.

/s/ Rafey S. Balabanian

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