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 F

Page 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,
)
)
-vs)
)
COMSCORE, INC., a Delaware
)
corporation,
)
)
)
Defendant.
)
__________________________________)

No. 1:11-cv-5807
Judge Holderman
Magistrate Judge
Kim

The deposition of COLIN O'MALLEY, called by
the Plaintiffs for examination, pursuant to notice and
pursuant to the Federal Rules of Civil Procedure for
the United States District Courts pertaining to the
taking of depositions, taken before Liza M. Perez,
Certified Shorthand Reporter and Notary Public within
and for the County of Cook and State of Illinois, at
350 North LaSalle Street, 13th Floor, Chicago,
Illinois, commencing at the hour of 9:44 a.m. on the
13th day of December, A.D., 2012.

Electronically signed by Liza Perez (501-125-266-1561)

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Q.

Apart from being directed to specific

2

documents to inform your opinion, did you have any

3

other -- and understanding the nature of this lawsuit,

4

did you have any other consultations that formed your

5

opinion from people at comScore?

6

A.

No, not that I can recall.

7

Q.

Okay.

8

need to --

9

How did you decide to -- do you guys

MR. SWEDLOW:

Well, for purposes of full

10

disclosure, I know that he consulted with

11

Randy McCaskill and John O'Toole.

12

have been -- he might be considering those through

13

Tom Cushing.

14

in the context of this discovery.

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MR. THOMASSEN:

But those might

I just don't want to keep that from you

I assumed that when you

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consulted with Randy and John, as Stephen just

17

mentioned, they were just directing you to other

18

documents like you explained to me a second ago.

19

THE WITNESS:

Yes, and the materials that you

20

see here including the installation chart.

21

BY MR. THOMASSEN:

22

Q.

Exhibit 4?

23

A.

Correct.

24

Q.

Okay.

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How did you decide to use

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RelevantKnowledge as the subject of your case study?

2

A.

Of the case study, do you mean --

3

Q.

Your expert report.

4

A.

-- expert report?

5

Q.

Yes.

6

A.

It was my understanding that

7

RelevantKnowledge and the behavior of

8

RelevantKnowledge and disclosures around

9

RelevantKnowledge were the subject of the complaint.

10

Q.

Where did you get that understanding from,

11

from Tom?

12

A.

Correct.

13

Q.

How about the decision to use MP3 Cutter as

14

the focus of your expert report or at least part of

15

your expert report?

16

A.

It was one of many examples.

I asked for a

17

list of more than five, and it may have been

18

substantially larger than that of examples that I

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could see in a diverse range of contexts, so I was not

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limited to MP3 Cutter.

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MP3 Cutter frankly at random.

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intended to uncover whether or not there were

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substantive differences in how RelevantKnowledge is

24

disclosed to the consumer based on the distribution

Electronically signed by Liza Perez (501-125-266-1561)

And I ended up selecting
My review was initially

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have any knowledge of this, but since you seem to have

2

some familiarity with O'Malley Exhibit 4, I'm

3

curious -- so if we turn to O'Malley Exhibit 4 and we

4

look at the notes column, it says data is from August

5

to October 2012.

6

Did I read that right?

7

A.

Yes.

8

Q.

So the 1,023,093 number at the bottom of the

9

CS Installs column represents the number of successful

10

installs of RelevantKnowledge between August and

11

October 2012.

12
13

Am I right so far?
A.

Yes.

Well, sorry.

It describes the number

14

of successful installations from a particular list of

15

distribution partners, and I would not expect that to

16

be complete.

17
18

Q.

Right.

So the number is in all likelihood

greater?

19

A.

Correct.

20

Q.

Okay.

Now, that's over just a three-month

21

period, over one million -- is that right, August,

22

September, October?

23

A.

Correct.

24

Q.

Right.

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I don't know if you have any way of

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partners.

2

Q.

3

Is MP3-cutter-splitter.com a distribution

partner as well?

4

A.

Yes.

5

Q.

All right.

6

you will.

Let's turn back to page six, if

7

Under the title comScore Disclosures, there's

8

a sentence after you describe that and you're going to

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be assessing this against the MP3 Cutter application,

10

you say, "It is my understanding and, accordingly I

11

have assumed that, the process and disclosures are

12

materially identical across all partner bundles."

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Can you tell me your basis for that

14

assumption?

15

A.

Sure.

As I mentioned earlier, I asked for a

16

list of additional partners that I can review to

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substantiate statements that were given to me from

18

comScore team.

19

further validated this by looking at a larger list and

20

verifying that, in fact, there was consistency across

21

that list.

22

Q.

So comScore team told me so and I

So just so I'm clear, you were told that the

23

process and disclosures are materially identical by

24

comScore, probably by Tom?

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A.

Correct.

2

Q.

And then you confirm that by looking at the

3

list that you were given?

4

A.

Correct.

5

Q.

Okay.

6

Thanks.

Now, I'm looking at the image on page six

7

here.

8

six?

9
10
11

A.

Can you tell me what this image is of on page

So this is the web page on which MP3 Cutter

offers its application for downloading.
Q.

Can you tell me whether there's any

12

placements paged that it's disclosed to -- I'll call

13

it the enduser, the person who's eventually going to

14

be downloading the software, that RelevantKnowledge is

15

included in the download?

16

A.

Well, first, I don't know that that is

17

directly relevant as it isn't included in the

18

download, but there's an opportunity that you will be

19

offered to download RelevantKnowledge as you proceed

20

with your installation of MP3 Cutter -- or should you

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proceed with your installation of MP3 Cutter.

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downloading MP3 Cutter does not mean that you're

23

downloading RelevantKnowledge.

24

Q.

But

So when you go through the -- this might just

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be my misunderstanding of how this works.

2

through the installation process as we'll go through

3

here, when you get to the point of being offered

4

RelevantKnowledge, you haven't downloaded it at that

5

point?

6

A.

Correct.

7

Q.

So is it incorrect to say that MP3 Cutter

8

When you go

download includes RelevantKnowledge?

9

A.

Yes.

10

Q.

Okay.

Do you know whether it says anywhere

11

on the MP3 Cutter website that as a part of the

12

download of MP3 Cutter, you'll be provided with an

13

opportunity to either install or download

14

RelevantKnowledge?

15

A.

I haven't comprehensively reviewed the

16

website for that disclosure, so I really can't tell

17

you one way or the other.

18

will just tell you that I'd be surprised to see it

19

there, but that's not surprising to me as it's not

20

customary in many online business models to, for

21

example, register for a website and then be offered an

22

offer from a partner.

23

before your registration begins that you're going to

24

see an offer that you optionally can participate in

Electronically signed by Liza Perez (501-125-266-1561)

I would suggest -- well, I

But to have prior disclosure

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NORTHERN DISTRICT OF ILLINOIS )
EASTERN DIVISION
)
STATE OF ILLINOIS
)
)
COUNTY OF COOK
)

SS:

I, Liza M. Perez, Certified Shorthand

5

Reporter and Notary Public in and for the County of

6

Cook, State of Illinois, do hereby certify that on the

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13th of December, A.D., 2012, the deposition of the

8

witness, COLIN O'MALLEY, called by the Plaintiffs, was

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taken before me, reported stenographically and was

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thereafter reduced to typewriting through

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computer-aided transcription.

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The said witness, COLIN O'MALLEY, was first

13

duly sworn to tell the truth, the whole truth, and

14

nothing but the truth, and was then examined upon oral

15

interrogatories.

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I further certify that the foregoing is a

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true, accurate and complete record of the questions

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asked of and answers made by the said witness, at the

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time and place hereinabove referred to.

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The signature of the witness was not waived
by agreement.
Pursuant to Rule 30(e) of the Federal Rules

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of Civil Procedure for the United States District

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Courts, if deponent fails to read and sign this

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deposition transcript within 30 days or make other

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arrangements for reading and signing thereof, this

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deposition transcript may be used as fully as though

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signed, and the instant certificate will then evidence

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such failure to read and sign this deposition

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transcript as the reason for signature being waived.

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The undersigned is not interested in the

8

within case, nor of kin or counsel to any of the

9

parties.

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Witness my official signature and seal as

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Notary Public, in and for Cook County, Illinois, on

12

this 19th day of December, A.D., 2012.

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Liza M. Perez, CSR
Notary Public
19 South LaSalle Street, Suite 1402
Chicago, Illinois 60603
License No. 084-004686

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Electronically signed by Liza Perez (501-125-266-1561)

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