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 Q

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 MIKE HARRIS’S RESPONSES TO
DEFENDANT COMSCORE, INC.’S FIRST SET OF INTERROGATORIES
Plaintiff Mike Harris (“Harris” 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 screensaver software approximately two (2) years
ago), unduly burdensome (it seeks information that was ephemerally stored on his computer
approximately two (2) years ago) 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 screensaver software are not relevant to the class certification analysis).
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
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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, in or around March of 2010 he searched the website www.macupdate.com for a free
screensaver depicting a peaceful scene.
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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 approximately (2) years ago).
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 does not recall viewing any terms or conditions of service, privacy agreements, or
other similar agreements, nor does he recall 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.

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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 screensaver software approximately (2) years ago), and is unduly
burdensome (it seeks information that was ephemerally stored on his computer approximately (2)
years ago). 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 within
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 March of 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.
Plaintiff states that in or around August of 2010 he discarded the computer used to
download the free screensaver that, unbeknownst to him, was bundled with comScore’s
software. Notwithstanding, Plaintiff states that the system configuration of his discarded
computer, which is substantially identical to its configuration at the time comScore’s software

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was installed, is as follows:
Model: iMac4, 1, BootROM IM41.0055.B08, Intel Core Duo, 1.83 GHz, 1 GB
Graphics: ATI Radeon X1600, ATY, RadeonX1600, PCIe, 128 MB
Memory Module: BANK 0/DIMM0, 512 MB, DDR2 SDRAM, 667 MHz
Memory Module: BANK 1/DIMM1, 512 MB, DDR2 SDRAM, 667 MHz
AirPort: spairport_wireless_card_type_airport_extreme (0x14E4, 0x89), 4.80.46.0
Bluetooth: Version 1.7.9f12, 2 service, 1 devices, 1 incoming serial ports
Network Service: AirPort, AirPort, en1
Serial ATA Device: WDC WD1600JS-40NGB2, 149.05 GB
Parallel ATA Device: MATSHITADVD-R UJ-846
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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 approximately two (2) years ago).
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 the same should exist within its possession).
Subject to and without waiving his objections, Plaintiff states that, in or around March of
2010, Plaintiff downloaded and installed a free screensaver that, unbeknownst to him, was
bundled with comScore’s software. To the best of his knowledge, Plaintiff does not recall being
presented with any terms or conditions of service, privacy agreements, or other agreements

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during the download and installation process, nor does Plaintiff recall agreeing to the download
of comScore software, or any other software (aside from the free screensaver).
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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 March of

2010, Plaintiff downloaded and installed a free screensaver that, unbeknownst to him, was
bundled with comScore’s software. Some time after the free screensaver was installed, Plaintiff
noticed that the menu extras on his menu bar had shifted locations. Upon inspection, Plaintiff
realized that a new, transparent menu extra was added to his menu bar. Plaintiff states that he
could not have noticed this new menu extra if its presence had not shifted the placement of
adjacent menu items. After discovering the menu extra, Plaintiff conducted research on the
WWW to determine what the item was. Plaintiff’s research revealed that the menu extra
indicated that PremierOpinion—comScore’s software—was operating on his computer. Plaintiff
then spent several hours attempting to remove PremierOpinion manually because he was
concerned that the software’s uninstaller would not fully remove the software (due to the fact it
had been installed on his computer without his knowledge). Unable to manually remove the
software, Plaintiff ultimately used the PremierOpinion uninstaller. In sum, Plaintiff spent two (2)
– three (3) hours attempting to remove 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 further objects to this Interrogatory on the basis that it is unduly burdensome (it requires
Plaintiff to identify information that is not within Plaintiff’s possession, custody or control).
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 Harris
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

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was subjected to comScore’s systematic and continuous surreptitious data collection practices.
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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
Dunstan, 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 on the basis that 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 seeks (i) statutory
damages pursuant to Defendant’s violations 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. Plaintiff’s investigation continues and he reserves the right
to supplement his answer to this Interrogatory as appropriate.
As to Objections:
Dated: April 9, 2012

MIKE HARRIS, 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 Mike Harris’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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