Dunstan et al v. comScore, Inc.

Filing 156

DECLARATION of Jay Edelson regarding memorandum in support of motion 154 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit s, # 20 Exhibit t)(Thomassen, Benjamin)

EXHIBIT P

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

PLAINTIFF JEFF DUNSTAN’S RESPONSES TO
DEFENDANT COMSCORE, INC.’S FIRST SET OF INTERROGATORIES
Plaintiff Jeff Dunstan (“Dunstan” or “Plaintiff”) provides the following answers to
Defendant comScore, Inc.’s (“comScore” or “Defendant”) First Set of Interrogatories:
Answers to Interrogatories
1.
Identify every Communication and Document You viewed or relied upon in
downloading third-party software you allege was bundled with comScore Software, including all
websites, webpages, advertisements, or solicitations.
ANSWER:

Plaintiff objects to this Interrogatory on the basis that it is overly broad (it

requires Plaintiff to identify potentially dozens of individual webpages that he viewed while
browsing the World Wide Web (“WWW”) for photo-cropping software1 in September 2010),
unduly burdensome (it seeks information that was ephemerally stored on his computer in
September 2010) and seeks information that is not relevant or reasonably calculated to lead to
the discovery of admissible evidence (the individual webpages viewed by Plaintiff in search of
photo-cropping software are not relevant to the class certification analysis). Plaintiff further
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Plaintiff initially believed that comScore’s software was bundled with free greeting card
template software that he downloaded. After further investigation, it appears that comScore’s
software was bundled with photo-cropping software.
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objects to this Interrogatory 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, Plaintiff states that in or around
September 2010 he searched the WWW for photo-cropping software to assist in the creation of
holiday greeting cards. After extensive searching, Plaintiff discovered software entitled “Photo
Cutter” on a third-party website.
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2.
Identify every Communication and Document You viewed Referring or Relating
To any terms or conditions of service, privacy agreements, or other agreements Related To the
third-party software bundled with comScore Software or the comScore Software You allege was
downloaded and installed on Your computer.
ANSWER:

Plaintiff objects to this Interrogatory 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 September 2010). Plaintiff further
objects to this Interrogatory 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, Plaintiff states that, to the best of his
knowledge, he did not view any terms or conditions of service, privacy agreements, or other
similar agreements, nor was the existence of comScore’s software disclosed to him at any time.
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3.
Describe in detail all Facts Related To the download and installation of third-party
software You allege was bundled with comScore Software to Your computer, including
description and identification of all websites, webpages, advertisements, solicitations, download
prompts, download agreements, service agreements, terms and conditions, or other agreements
You viewed during download and installation.
ANSWER:

Plaintiff objects to this Interrogatory 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 for photo-cropping software in September 2010), and is unduly burdensome
(it seeks information that was ephemerally stored on his computer in September 2010). Plaintiff
further objects to this Interrogatory 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, Plaintiff states that his answers to
Interrogatory Nos. 1, 2 and 5 are responsive to this Interrogatory.
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4.
Describe in detail the system configuration of Your computer at the time You
contend the comScore software was installed on Your computer, including but not limited to
describing the operating system, processor, memory, display, hard drive, manufacturer, and
model number.
ANSWER:

Plaintiff objects to this Interrogatory on the basis that it is unduly

burdensome (it seeks information about the configuration of Plaintiff’s computer from an exact
point in time in September 2010). Plaintiff further objects to this Interrogatory 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 these objections, Plaintiff states that the system
configuration of his current computer, which is substantially identical to its configuration at the

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time comScore’s software was installed, is as follows:
Make: Acer
Model: Veriton M410
Operating System: Microsoft Windows XP Professional, SP 3
Memory: 2.19 GHZ, 3.25 GB Ram
Display: ATI X1250 Radeon
Hard drive: ST3160815A Barracuda 7200.10 Ultra ATA/100 160-GB Hard Drive
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5.
State all Facts Related to Your contention that You did not agree to comScore’s
Terms of Service.
ANSWER:

Plaintiff objects to this Interrogatory 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 September 2010). Plaintiff further
objects to this Interrogatory 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, Plaintiff states that, to the best of his
knowledge, in or around September of 2010, Plaintiff downloaded and installed photo cropping
software that, unbeknownst to him, was bundled with comScore’s software. At no point during
the download process of that photo cropping software did Plaintiff view any terms or conditions
of service, privacy agreements, or other agreements related to comScore software, nor did
Plaintiff agree to the download of comScore software, or any other software (aside from the
photo cropping software).

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6.
Describe all Facts Related To Your efforts to remove comScore Software from
Your computer, including but not limited to describing the amount of time You contend the
comScore software was installed on Your computer.
ANSWER:

Plaintiff states that, to the best of his knowledge, in or around September

of 2010, he downloaded and installed photo-cropping software that, unbeknownst to him, was
bundled with comScore’s software. Almost immediately after the download, Plaintiff’s computer
began malfunctioning. In particular, access to the WWW became intermittent and his computer
started locking up in such a way that he could no longer operate it in any meaningful manner.
After restarting the computer into Safe Mode, Plaintiff navigated to the Control Panel, opened
the Add or Remove Programs tool and noticed that ‘RelevantKnowledge’ software had been
installed on his computer. At the same time, Plaintiff’s firewall detected the re-routing of his
Internet traffic to comScore’s servers. After much struggle, Plaintiff was eventually able to
browse the WWW to perform a search for a product to remove RelevantKnowledge. Plaintiff
discovered a software product—PC Tools Spyware Doctor—which was marketed as a tool
capable of removing RelevantKnowledge. After purchasing, installing, and running PC Tools
Spyware Doctor, the software detected and removed RelevantKnowledge. Once PC Tools
Spyware Doctor removed RelevantKnowledge, Plaintiff’s computer returned to normal
functionality. In sum, Plaintiff spent approximately ten (10) hours fixing the damage caused to
his computer by comScore’s software.
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7.
If You contend that comScore sold personal information collected by comScore
Software from Your computer, Describe all Facts related to that contention.
ANSWER:

Plaintiff objects to this Interrogatory to the extent it seeks disclosure of

information protected by the attorney client privilege and the attorney work product doctrine.

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Plaintiff also objects to this Interrogatory 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 such objections, pursuant to Fed. R. Civ. P. 33(d),
Plaintiffs state that the documents bearing Bates Nos. Harris-Dunstan 0016 – Harris-Dunstan
0087 produced in response to comScore’s First Set of Requests for Production of Documents are
responsive to this Interrogatory.
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8.
State all Facts and Identify all Documents that You contend support a grant of
class certification in this matter.
ANSWER:

Plaintiff objects to this Interrogatory to the extent it seeks disclosure of

information protected by the attorney client privilege and the attorney work product doctrine.
Plaintiff also objects to this Interrogatory on the basis that it calls for a conclusion of law.
Plaintiff further objects to this Interrogatory on the basis that it is premature inasmuch as
Dunstan has not yet moved for class 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, Plaintiff states that comScore has
indicated that the number of putative class members ranges between 377,090 and 560,025
individuals (from 2008 through 2011). Paragraphs 74 – 83 of Plaintiffs’ Class Action Complaint,
(Dkt. No. 1), explains the reasons that Plaintiff contends class certification is warranted in this
matter. Additionally, Plaintiff’s counsel is adequate, see Bates Nos. 0552 – 0557, and Plaintiff
was subjected to comScore’s systematic and continuous surreptitious data collection practices,
and the panelist software damaged his computer, which caused him legal damage.

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Identify all class members and potential class members that You are aware of.

ANSWER:

Plaintiff objects to this Interrogatory 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 (presumably
comScore possesses information identifying every active and former panelist). Plaintiff further
objects to this Interrogatory on the basis that it is premature inasmuch as Dunstan has not yet
moved for class 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 his objections, Plaintiff states that, aside from Plaintiff
Harris, he is not currently aware of the identity of the members of the putative class.
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Describe all Facts Related To the manner in which You became involved in this

matter.
ANSWER:

Plaintiff objects to this Interrogatory to the extent it seeks disclosure of

information protected by the attorney client privilege and the attorney work product doctrine.
Plaintiff further objects to this Interrogatory on the basis that it seeks information that is not
relevant or reasonably calculated to lead to the discovery of admissible evidence.
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11.
Describe in Detail all actual damages that You contend You suffered as a result of
the comScore software that You allege was downloaded and installed on Your computer.
ANSWER:

Plaintiff objects to this Interrogatory to the extent that it calls for a

conclusion of law.

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Subject to and without waiving this objection, Plaintiff states that he suffered actual
damages in the form of monies paid to purchase the software that was required to detect and
remove comScore’s software from his computer. Plaintiff further states that he seeks (i) statutory
damages pursuant to Defendant’s violation of 18 U.S.C. § 2707(c) and 18 U.S.C. § 2520, (ii) an
award of punitive damages where applicable, and (iii) reasonable attorneys’ fees and other
litigation costs reasonably incurred.
As to Objections:
Dated: April 9, 2012

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]

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CERTIFICATE OF SERVICE
I, Chandler R. Givens, an attorney, hereby certify that on April 9, 2012, I served the
above and foregoing Plaintiff Jeff Dunstan’s Responses to Defendant comScore, Inc.’s First
Set of Interrogatories 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

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