Dunstan et al v. comScore, Inc.

Filing 176

DECLARATION of Robyn Bowland regarding memorandum in opposition to motion 175 (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 Errata 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, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W)(Bowland, Robyn)

EXHIBIT P

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.

)
)
) No. 1:11-cv-5807

COMSCORE INC., a Delaware corporation )
Defendant.

)

The deposition of MICHAEL J. HARRIS, called
by the Defendant for examination, taken pursuant to
notice, agreement and by the provisions of the Rules of
Civil Procedure for the United States District Courts
pertaining to the taking of depositions, taken before
DEBORAH HABIAN, CSR No. 084-002432, a Notary Public
within and for the County of Cook, State of Illinois,
and a Certified Shorthand Reporter of said State, at the
offices of Quinn Emanual Urquhart & Sullivan, 500 West
Madison Street, Suite 2450, Chicago, Illinois, on
Friday, the 13th day of July, 2012, at 9:23 a.m.

Job No: 26294

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APPEARANCES
on behalf of the Plaintiffs;
EDELSON McGUIRE, LLC
350 North LaSalle Street, 13th Floor
Chicago, Illinois 60654
[phone]
BY: JAY EDELSON, ESQ.
[e-mail]
CHANDLER GIVENS, ESQ.

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on behalf of the Defendant.
QUINN EMANUEL URQUHART & SULLIVAN, LLP
500 West Madison Street, Suite 2450
Chicago, Illinois 60661
BY: ANDREW H. SCHAPIRO, ESQ.
[e-mail]
STEPHEN SWEDLOW, ESQ.
[e-mail]
LAURA NORRIS, ESQ.
[e-mail]
STACK & O'CONNOR, CHARTERED
140 South Dearborn Street, Suite 411
Chicago, Illinois 60603-5232
[phone]
BY: PAUL F. STACK, ESQ.
[e-mail]

ALSO PRESENT:
JOE BEILE, Videographer

MICHAEL J. HARRIS
(Continuing)
EXHIBITS
DEFENDANT'S
DESCRIPTION
Exhibit 7
Mac Update site description of
the Secret Land Screensaver
Bates HARRIS-DUNSTAN 004
Exhibit 8

3/12/10 Mike Harris posts
Wcitymike on Mac Update
re troubleshooting

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Exhibit 9

Mac Update printout with
Roro01 comments

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Exhibit 10

Complaint

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INSTRUCTIONS NOT TO ANSWER:
Page 17, Line 24
Page 25, Line 12
Page 33, Line 23

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MICHAEL J. HARRIS
INDEX
WITNESS:
PAGE
MICHAEL J. HARRIS
Exam by Mr. Schapiro ......................... 6

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EXHIBITS
DEFENDANT'S
DESCRIPTION
PAGE 8
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Exhibit 1
Chandler Gives e-mail to
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Mike Harris, e-mail address
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[e-mail]
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Exhibit 2
8/23/11 engagement letter
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between Edelson McGuire
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and Mike Harris
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Exhibit 3
Plaintiff's Response to
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Interrogatories
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Exhibit 4
3/13/10 post by Wcitymike
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on Ask MetaFiler
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Exhibit 5
Mike Harris's Supplemental
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Responses to comScore's
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Interrogatories
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Exhibit 6
Mike Harris's posts,
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Wcitymike on Mac Update
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PAGE
71

5
MICHAEL J. HARRIS
THE VIDEOGRAPHER: This is Tape No. 1 of
the videotaped deposition of Michael Harris taken by the
Defendant in the matter of Mike Harris and Jeff Dunstan
vs. comScore, Inc. in the -- in the -- in the mat- -I'm sorry, in the United States District Court for the
Northern District of Illinois, Eastern Division, Case
No. 1:11-cv-5807. This deposition is being held at 500
West Madison Street in Chicago, Illinois on July 13th,
2012 at approximately 9:23 a.m.
My name is Joe Beile from the firm of
David Feldman Worldwide, and I'm the Legal Video
Specialist. The court reporter is Debbie Habian, also
in association with David Feldman Worldwide.
Will counsel please introduce themselves.
MR. SCHAPIRO: I'm Andrew Schapiro for the
Defendants comScore. With me is Laura Norris.
MR. STACK: Paul Stack for the Defendant
comScore.
MR. SWEDLOW: Stephen Swedlow for the
Defendant comScore.
MR. GIVENS: Chandler Givens for the
Plaintiff.
MR. EDELSON: Jay Edelson for the
Plaintiff.

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DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL J. HARRIS

MICHAEL J. HARRIS
Michigan Avenue store.

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Q. And if you remember, was it new or was it
used when you bought it?
A. New.

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Q.

And why was it in a dumpster?

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A.

I had thrown it away.

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Q.

And why had you thrown it away?

Do you recall about how much you paid?
I don't.

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A.

Its hard drive was beginning to die, and

Do you recall how much memory the computer

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Q.
A.
Q.
had?
A.

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From memory, no.
What kind of processor it used?
From my memory, I don't recall that.

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Q.
A.

Do you know how large the hard drive was?
Again, from my memory, I don't recall.

so I had bought a new computer.
Q.

Is it fair to say that you are at least

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moderately tech savvy?
MR. EDELSON: Objection. Vague.

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Q. What about the operating system? Do you
recall the operating system that was used?
A. It was Mac OS 10. What level it was at, I
don't recall, I mean what version of the OS 10.

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Q. And do you know whether -- you may just
have answered this, but just for clarity, whether there
had been any upgrade, whether you had upgraded the
operating system at any time before the installation of
the comScore software that you allege?
A. To clarify, you're asking between the time
of purchase and the time of installation?

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Before you threw it away -- well, let me

back up.

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Q.
A.

August 2010.

THE WITNESS: It would really depend on
your definition of "tech savvy."
BY MR. SCHAPIRO:
Q.

Well, you've described yourself as someone

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who has some moderate knowledge of computers and tech,

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correct?
A.

Using my own definition of tech savvy, I

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would think so, but it would depend on an external

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party's --

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Q.

Did you --

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A.

-- definition.

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Q.

Sorry. I didn't mean to cut you off.

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A.

No problem.

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MICHAEL J. HARRIS
Q. Yeah.
A. Yes.
Q. Can you tell me about that?
A. I had applied various upgrade- -- the
OS 10 upgrades offered by Apple.
Q. And prior to March 2010, which is when you
say you downloaded -- let me just back up.
March 2010 is when you say you downloaded
the comScore software, right?
A. Yes.
Q. So prior to that time, had your Macintosh
ever required any repairs?
A. I can't recall.
Q. And do you recall whether you had ever
upgraded any of the hardware, like the memory or the
hard drive?
A. I don't know for certain.
Q. Where's that Macintosh today?
A. I don't know where it is today.
Q. When did you last see it?
A. I last saw it in a dumpster behind my
house -- apartment building.
Q. Approximately when?
A. Approximately -- very approximately,

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MICHAEL J. HARRIS
Q. And you spend a reasonable amount of time
online, correct?
A. Yes.
Q. And you sometimes make posts in -- on
sites that discuss technology and technology issues,
right?
A. Yes.
Q. And part of the reason you claim to be
bringing this lawsuit is that you're concerned about
privacy of your data, right?
A. Yes.
Q. So you wouldn't just -- you didn't just
throw out a computer with a hard drive inside it, did
you?
A. No. No, at that time, no.
Q. So what did you do to protect or preserve
the data on the hard drive?
A. I can answer that question with -- with
the caveat that I'm working from two-year-old memories
and it's not going to be specific.
Q. Just do your best, please.
A. Okay.
To the best of my recollection, I believe
I used the disk utility program that comes with

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DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL J. HARRIS

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However, again, if memory serves me correctly, the hard
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drive was already in a bad state of repairs and I'm not
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sure -- I believe I wiped it as cleanly as I could at
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that time.
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Q. Is it fair to say that you did not -- that
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you thought the computer wasn't very valuable as of that
9
time?
10
A. It would really depend on your definition
11
of "valuable."
12
Q. Well, not garbage.
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A. No, it was garbage at that point in my
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opinion.
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Q. And had it been acting up for awhile?
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A. Could you define "awhile"?
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Q. Months.
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A. Months. (Nodding.)
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Q. Had it been acting up -20
MR. EDELSON: Objection. Just for the
21
record, I believe there was a nod. And I don't want to
22
interpret that, but could we just have clarity for the
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record what his answer was?
24
THE WITNESS: I'm sorry. You had
25
said that...
Mac OS 10 to format the hard drive before erasing.

MICHAEL J. HARRIS
MR. SCHAPIRO: Can we mark this document?
What are we up to, No. 4?
THE REPORTER: We are.
(Defendant's Exhibit 4 marked for ID)
BY MR. SCHAPIRO:
Q. So take a minute. I'm just going to ask
you about the first page of this document.
A. (Reviewing document.)
Q. And this is a post on a site called Ask
MetaFilter, correct?
A. That's correct.
Q. What is Ask MetaFilter?
A. Ask MetaFilter is a website where people
can -- if they have a membership account can post a
question and have other members answer it.
Q. And on the first page of this document -I'm sorry, is it Exhibit 4?
THE REPORTER: Yes.
BY MR. SCHAPIRO:
Q. (Continuing) -- there's a question posted
by Wcitymike. That's you, right?
A. Yes.
Q. And you say that your Macintosh's
"internal hard drive finally gave up the ghost today" --

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MICHAEL J. HARRIS
(Counsel reviewing Livenote transcript.)
MR. SCHAPIRO: "Had it been acting up for
months?" And I think the answer is "Months" and then in
parentheses "Nodding."
MR. EDELSON: Sorry.
BY MR. SCHAPIRO:
Q. Months, yes?
A. It had been op- -- yes, it had been
misbehaving for months. How many months, I don't
recall.
MR. EDELSON: I apologize. I didn't mean
to interrupt your flow.
MR. SCHAPIRO: That's all right.
BY MR. SCHAPIRO:
Q. And in fact, it had been -- it had been
acting up for awhile prior to March 2010, correct?
A. I don't recall when it began to misbehave,
so I'm unable to answer your question.
Q. Your user name on Mac Update is Wcitymike,
correct?
A. Correct.
Q. And you've also used that user name on
MetaFilter, correct?
A. Correct.

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MICHAEL J. HARRIS
this is dated March 13th, 2010 -- "after spitting out
various I/O errors for awhile," correct?
A. That's what it says, yes.
Q. Does that refresh your memory at all about
how long or when your computer had been acting up?
A. It doesn't provide -- it doesn't trigger
any additional memories, no.
Q. What's an I/O error?
A. In that context, I imagine I meant
input/output.
Q. What are input/output errors?
A. I can give you my best guess of what I
meant at that time.
Q. Please.
A. It -- I would imagine it was hard drive
reading and writing errors, however, I don't know that
fact for certain.
Q. And I think you say at that point that -actually, strike that.
You note in this post that you -- that you
want to replace the Macintosh, correct?
A. (Reviewing document.)
I don't see a reference to that.
Q. I skipped a little further down. I

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DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL J. HARRIS

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MR. EDELSON: Objection.
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For the record, you haven't given him an
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opportunity to read the whole document.
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MR. SCHAPIRO: Fair -- fair objection.
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BY MR. SCHAPIRO:
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Q. You can -- if you want to take a moment
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and read the whole document, that's fine.
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A. (Reviewing document.)
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MR. EDELSON: Can we go off the record for
11
a minute as we do that? No? That's okay.
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MR. SCHAPIRO: No, I have a question
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pending.
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MR. EDELSON: Sure. That's fine.
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BY MR. SCHAPIRO:
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Q. You're probably far enough that I could
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focus the question, which is: You were thinking about
18
switching over to a Windows-based machine at that point, 19
correct?
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MR. EDELSON: Objection. I think that he
21
should have the opportunity -22
MR. SCHAPIRO: That's fine.
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MR. EDELSON: -- to finish reading that.
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MR. SCHAPIRO: Yeah, yeah. I just -25
apologize. On the next page --

MICHAEL J. HARRIS
Q. And your father was going to send you a -was going to UPS you a laptop from home?
A. Yes.
Q. But in the meantime, you had a back-up
hard drive, correct?
A. Yes.
Q. And it was a 500 gigabyte LaCie, if I'm
pronouncing that right, d2 Quadra, right?
A. Yes.
Q. And did you use that back-up hard drive to
back up the Western Digital hard drive from your
Macintosh that had been giving you trouble?
A. Yes.
Q. Where is that back-up hard drive today?
A. I don't recall, to be honest.
MR. SCHAPIRO: I'd ask that Mr. Harris
take a look for his back-up hard drive -MR. EDELSON: Of course.
MR. SCHAPIRO: -- in his home or garage or
wherever else it might be.
MR. EDELSON: You don't have -THE WITNESS: Okay.
MR. EDELSON: He made a request and we're
happy -- to the extent we've not done so, we're happy to

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MICHAEL J. HARRIS

1

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MR. EDELSON: And Mike, you shouldn't feel

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5

1

THE WITNESS: (Reviewing document.)

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53

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pressured. You can take as much as time as you want.
BY MR. SCHAPIRO:
Q.

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I want to reiterate what your attorney

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says. Take as long as you want. Let me know if you

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ever want more time to read a document. But sometimes

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to move things along, I'll point you to the pages that

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are relevant, but you should always feel free to read as

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little or as much as you like.
A. I'm going to read my own comments

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thoroughly and skim through others, so that should do me

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well. Just --

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Q.
A.

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Please do.
(Reviewing document.)
I think I've reviewed it sufficiently

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enough to be comfortable, although I may need to review

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it again if -- in response to a future question.

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Q.

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That's fine. You should always feel free

to.

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So is it fair to say that at that time you

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were thinking of switching over to a Windows-based

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machine?
A. At some point in the future, yes.

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MICHAEL J. HARRIS
-- or we'll do it again regardless.
MR. SCHAPIRO: Thank you.
BY MR. SCHAPIRO:
Q.
A.

During -Um....

Q. Go ahead.
A. Just to further state, I will look for it
at home and advise my attor- -MR. EDELSON: Yeah, you don't have to -he made a request, and we'll deal with it at
appropriately.
THE WITNESS: Okay.
I do want to indicate one thing on the
record though, if that's acceptable, and it's just that
I don't -- I believe it is gone. I believe it is
destroyed at this time. But I will confirm that fact
when I get home.
BY MR. SCHAPIRO:
Q. And the reason that you had a back-up
drive is that you understand that sometimes hard drives
fail, right? That's one reason that you had a back-up
drive?
A. I hadn't thought specifically about hard
drive failure. I just know it's common wisdom that it's

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DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL J. HARRIS
perhaps should have said "user name," but....
And can you tell us what the Mac Update
site is for those of us that aren't familiar with it?
A. Just given my own definition, it's a
gateway website that offers links to various Mac
software.
MR. SCHAPIRO: We've been going for about
an hour and a half and we're approaching the end of the
tape, so why don't we take a short break.
THE VIDEOGRAPHER: Here ends Tape No. 1,
we're now going off the video record at 10:38 a.m.
(Recess taken from 10:38 a.m.
to 10:56 a.m.)
THE VIDEOGRAPHER: Here begins Tape No. 2
we're now going back on the video record at 10:56 a.m.
BY MR. SCHAPIRO:
Q. Mr. Harris, I want to ask you a couple
more questions about that back-up hard drive.
You said that you think you might not have
it anymore, correct?
A. I believe so.
Q. Is it your practice when you discard a
computer or a hard drive to transfer over any valuable
or important material that you can?

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MICHAEL J. HARRIS
Okay.
-- the download of the comScore?
I don't know if I have or not.
MR. SCHAPIRO: So I think we'll want to
examine the Toshiba or work out some protocol with you.
We can talk about it -- I'm -- for the record, I'm
speaking now to Mr. Edelson. We can talk about it -MR. EDELSON: Yeah.
MR. SCHAPIRO: -- offline.
MR. EDELSON: Of course.
THE WITNESS: Of course, my -- you know, I
would interact with my attorneys on this, but in terms
of -- I mean -MR. EDELSON: We don't have to have a
colloquy. So we -- we're not agreeing to do anything,
but what we're agreeing to is to talk about it.
THE WITNESS: Okay.
MR. EDELSON: We'll understand their
position, we will speak to you and figure out what our
position is and communicate that. And this just isn't
the right forum for that.
THE WITNESS: Oh.
MR. EDELSON: So don't worry. We're
preserving everything and we will deal with legally
A.
Q.
A.

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MICHAEL J. HARRIS

1
2
Q. So do you have a -- could you just walk me
3
through where the information that was on that separate
4
hard drive would have gone to and where it's ended up?
5
A. There are files that work both on Windows
6
and Mac machines, things such as Office documents, audio
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files, video files, text files. Those files that I
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could -- that were of value to me on a Windows machine
9
probably made the transition over from that original
10
Mac. Those files that had no value on a Windows machine
11
most likely were erased or deleted.
12
Q. So is it possible that there are some
13
files on your Toshiba today that can trace their lineage
14
back to your iMac?
15
A. Yes.
16
Q. Have you checked your Toshiba to see if
17
there are any files relating to or reflecting the
18
download of the comScore software that you say occurred 19
in March 2010?
20
A. I'm sorry. Could you repeat the portion
21
of your question where you say "referring" or from that
22
point onward? It was -23
Q. Have you checked your Toshiba to see if
24
there are any files relating to or reflecting -25
A.

If that's possible.

65
MICHAEL J. HARRIS
what's required.
THE WITNESS: Okay. So we're just talking
about talking about it?
MR. EDELSON: That's all we've agreed,
that we've agreed at an appropriate time that we will
have a discussion about it.
THE WITNESS: Okay. Thank you.
MR. EDELSON: And we'll do what is -- what
is correct under the law, and even more so, morally.
THE WITNESS: I'm sorry. I -MR. SCHAPIRO: Let the record reflect
laughter.
MR. EDELSON: But this is -- let's focus
on the deposition where he'll ask questions and you'll
answer them. And if you have separate questions about
the legal process, let's just keep talking about that
outside of the deposition.
THE WITNESS: I understand. I just
hadn't -- I wasn't aware that it was -MR. EDELSON: Yeah.
THE WITNESS: If it's talking about
talking, I'm fine.
MR. EDELSON: Correct.
MR. SCHAPIRO: So can we mark this

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DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL J. HARRIS

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2
(Defendant's Exhibit 6 marked for ID)
3
MR. SCHAPIRO: (Tendering document
4
counsel.) Sorry. I already put "6" on there.
5
MR. EDELSON: That's great.
6
BY MR. SCHAPIRO:
7
8
Q. Mr. Harris, we were speaking before the
9
break about the Mac Update site, correct?
A. Yes.
10
11
Q. And I'm showing you a document that we've
12
marked Defendant's Exhibit 6, which is entitled "Mike
13
Harris's posts," but it lists a bunch of posts from
Wcitymike. Would these be posts that you've made on Mac 14
15
Update?
A. Yes.
16
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Q. And at the top there is what I guess we
18
might call a member profile, something like that. It
19
says "Mike Harris" and there's a little information
20
listed as "About Me," correct?
A. Yes.
21
22
Q. And it lists things like "Visit Stats" and
23
I guess a website of yours, a Temblr -- a Tumblr site,
24
correct?
A. I don't believe that's still that website,
25
document Defendant's Exhibit 6.

MICHAEL J. HARRIS
"with some frequency."
Q. Any reason to believe that you didn't
during the course of your membership put on -- the 113
posts on Mac Update?
A. No.
Q. No reason not to believe it?
A. No reason not to believe it.
Q. All right. And the third post on this
page is from March 9th, 2010, correct?
A. Yes.
Q. And that's a post -- did you write that
post?
A. Yes.
Q. And in that post, you talk about
PremierOpinion software, correct?
A. Yes.
Q. And you're referring to something called
the Secret Land Screensaver, correct?
A. Yes.
Q. And at the very bottom of your post in
small font it says "Version 1.1."
Do you see that?
A. Yes.
Q. What does that mean or refer to?

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MICHAEL J. HARRIS
but, yeah, those are -- that's what it appears to be.
Q. And is there anything about this
information on this user profile that is incorrect, to
your knowledge?
A. If by "user profile" you mean the subject
headings "About Me," "Visit Stats" and "Website" -Q. Correct.
A. -- the only inaccurate information that I
can see is that that is no longer my website.
Q. It was at one time, though, correct?
Or -A. I believe so.
Q. Okay. And up at the top, there's some
statistics. What's a smile score?
A. I don't know.
Q. But you're +94. You're in positive
territory. Presumably, that's good, Mr. Harris.
And it says, "Posts 113." Is it fair to
say that reflects how many posts you've put on Mac
Update?
A. I don't know.
Q. Did you post with some frequency on Mac
Update when you were using your Mac?
A. It would depend on your definition of

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MICHAEL J. HARRIS
A. I don't know. It's something that the
website adds, not the user.
Q. Does it mean that you were commenting on
Version 1.1 of the Secret Land Screensaver?
A. I have no knowledge as to that. It's
something that the website adds to the post.
Q. I see. So it would automatically be
there. You didn't input that yourself?
A. I don't believe I did.
Q. Okay. And if you'll look at some of these
other reviews or comments by you, they have version
numbers at the bottom as well, correct?
A. Correct.
Q. Version 1.3.1 or Version 1.0.8.6, correct?
A. Correct.
Q. So you wrote about the Secret Land
Screensaver that -- and I'm paraphrasing here, just for
the record -- that "when you install it, you find a
white star menu extra on the menu bar," correct?
A. That's indeed what it says.
Q. What's a white star menu extra?
A. It's a menu extra where the icon on the
menu bar is a white star.
Q. And then you write that "If you kill the

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DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL J. HARRIS

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MICHAEL J. HARRIS

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process, it -- it" -- strike that.

2

without objection, that this was provided to us by your

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find launch D keeps relaunching it."

"HARRIS-DUNSTAN 004." I'm going to represent, hopefully

3

You write "Kill the process and you'll

3

72

attorneys.

Do you know what launch D is?
A. Yes.

5
6

A.

Yes.

Q.
A.

7

Q.

And this is a description from the Mac

What's that?
Launch D is the Unix binary that's on the

8

Have you seen this document before?

Update site of the Secret Land Screensaver correct?

9

A.

Yes.

10

and I want to say launch items was the other thing it

10

Q.

And does it tell you right up near the top

11

was in charge of.

11

9

Mac OS 10 system which is in charge of launch demons

Actually, it's not demons, but daemons,

12
13

12

D-A-E-M-O-N-S.

13

which version it's describing?
A.

1.1.

Q.

And that's apparently the same version you

And that's a computer term?
Yeah.

14

15

Q.
A.

15

A.

Yes.

16

Q.

And then a little further down you say

16

Q.

And to your knowledge, is this different

17

"Fortunately, PremierOpinion uninstall in that directory

17

in any way from the description that you saw when you

18

appears" -- and you have that bracketed by asterisks --

18

downloaded the -- when you claimed to have downloaded

19

"to have gotten rid of the whole mess one would hope,"

19

the screensaver?

20

correct?
A. Correct.

20

14

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24
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Q.

A.

(Reviewing document.)

21

I am almost certain that the text from

22

"Please note" onward was not in the text -- it was not

23

Now, when you wrote this, had you in fact

downloaded the Secret Land Screensaver?
A. Yes.
Q.

commented on, correct?

on the page at the time I downloaded it.

24

Q.

Almost certain?

25

And do you remember what the Secret Land

A.

I cannot say with a hundred percent

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MICHAEL J. HARRIS
Screensaver was?
A. It was -Q. Actually, strike that. Let me ask the
question.
So also when you wrote this, had you
uninstalled the Secret Land Screensaver using the steps
that you describe?
A. In all honesty, it would depend on how
you're defining "the Secret Land Screensaver."
Q. Strike that.
Had you uninstalled the PremierOpinion
software at that point?
A. I'd hoped so.
Q. Tell us what the Secret Land Screensaver
was.
A. It was an application that I downloaded
from the Mac Update website.
Q. And do you recall -MR. SCHAPIRO: Well, let me just mark this
exhibit. Let's mark this as Exhibit 7.
(Defendant's Exhibit 7 marked for ID)
BY MR. SCHAPIRO:
Q. So this is a document that has a Bates
stamp on the bottom of the first page that reads

73
MICHAEL J. HARRIS

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2
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reliability, but I strongly feel that.
Q.

Now, if we turn the page to page the Bates

4

stamp ending 005 -- I apologize, there's -- the

5

"confidential" stamp and the Bates stamp to some extent

6

overlaps with the text. But are you on the second page?

7

A.

I am.

8

Q.

And are you sufficiently familiar with the

9

Mac Update site to explain to us what information's

10

conveyed over on the -- that information tab towards the

11

bottom where it says "Downloads, version downloads, type

12

license" and then it continues onto the next page?
So if you wouldn't mind just walking us

13
14

through what those things mean -MR. EDELSON: Objection. Foundation.

15
16

BY MR. SCHAPIRO:

17

Q.

-- to the best of your knowledge?

18

A.

I can say what a commonsense laymen

19

understanding of it would be, but I don't have any --

20

Q.

21

laymen --

22

A.

23

Q.

Yeah, please go ahead.

24

A.

I can answer from a commonsense laymen's

25

Tell us what you as a commonsense
I'm sorry, sir. You interrupted me.

perspective, but I didn't design the website. I have no

19 (Pages 70 to 73)
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL J. HARRIS
A. Without seeing those particular
screensavers do that thing, yes. With the exception of
the Secret Land Screensaver.
Q. So the Secret Land Screensaver you say you
did download, correct?
A. Yes.
Q. Why don't you tell us about that. You
found it -- you downloaded it from the Mac Update site,
correct?
A. Correct.
Q. And it was this Version 1.1, correct?
A. I have no knowledge of that.
Q. Well, at the end of your comment it says
in small letters "Version 1.1," correct?
A. Correct.
Q. Any reason to believe that you downloaded
a different version?
A. I -- no particular reason that I can think
of.
Q. Was this an important event in your life?
A. What?
MR. EDELSON: Objection.
BY MR. SCHAPIRO:
Q. Was this an important event in your life,

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MICHAEL J. HARRIS
I would have clicked on that.
Q. And do you recall what color the "download
now" button was?
A. I don't think that it was a button. I
think it was a text link. I don't recall the color.
Q. And -A. As I said, they've changed their layout
since that time.
Q. And are you confident that that's how -that you would have clicked something that had the text
"download now" to download it?
A. It was about two years ago. I'm
relatively confident, yes.
Q.
A.

And then what happened?
It would have downloaded a file --

Q. Well, I'm sorry to interrupt, but if you
could just clarify for us when you say "would have" or
"did" to the extent that you're talking about your
general practices or things that you actually remember,
that would be helpful.
MR. EDELSON: And objection. The -- if
you ask the question, he should be allowed to answer the
question fully. A few times you've asked a question and
then immediately withdrawn it or interrupted him in the

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MICHAEL J. HARRIS
downloading the Secret Land Saver -- the Secret Land
Screensaver?
MR. EDELSON: Objection. Vague.
THE WITNESS: Should I still answer?
MR. EDELSON: Yes.
THE WITNESS: Okay.
It would really depend on your definition
of the word "important."
BY MR. SCHAPIRO:

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MICHAEL J. HARRIS

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middle. So I would ask that you have the courtesy -- if

3

you withdraw a question immediately, that's fine, but

4

once he starts answering it, unless he's answering

5

something, you know, that's totally off point, let him

6

finish and then you can clarify.

7

MR. SCHAPIRO: I want only to be

8

courteous, but if I want to withdraw a question, I, of

9

course, am going to withdraw a question, and if I think

10

it's efficient to try and modify something or point

Q. You don't remember all the details,
correct?
A. Correct.

11

something out because I think it's going to save us a

12

little time...

Q. And you downloaded it on March 9th,
correct, 2010?
A. Yes.

14

him unless you think he is saying something that's

15

inappropriate. That I believe is improper. I --

Q.
A.

MR. EDELSON: Well, you may not interrupt

13

MR. SCHAPIRO: Are you done?

16

And when you downloaded it, what happened? 17
18
Um....
19
Q. Actually, let me take it one step at a
20
time. What did you do to download it?
21
A. I would have clicked on -- I seem to re22
-- and this may be because this particular, as you can
23
see, it says "Has been discontinued," but I seem to
24
remember on a normal Mac Update web page with a
25
functioning program there being a "download now" link.

MR. EDELSON: Go ahead.
BY MR. SCHAPIRO:
Q.

You can answer.

A.

Could you repeat the original question?

Q.

I can't remember what it was.
(Counsel reviewing Livenote transcript.)

BY MR. SCHAPIRO:
Q.

I think my question was just: "And then

what happened?" But let me frame the question properly

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450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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so I don't need to interrupt you.

2

3

To the extent you can distinguish in your

3

4

answer between what you think you would have done and

4

5

what you specifically remember doing, that would be

5

6

helpful for us. It doesn't matter -- you can feel free

6

7

to give -- to answer along both lines, but if you could

7

8

flag those for us, it would be useful.

8

So we had -- you had said you think but

9

9

10

you're not sure you would have clicked the "download

10

11

now" link; is that correct?

11

A.

Yes.

12

13

Q.

And my question was: "And then what

13

14

happened?"

12

15

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specific memories of clicking -- of actually clicking

16

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the "download now" link for under this listing. It

17

18

would have been what I would have done to download this,

18

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but in terms of an actual physical memory of clicking on

19

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it, no.

20

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A.

14

Okay. Given what you just said, I have no

15

Similarly, I don't have a specific memory

21

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of how this application arrived on my hard drive after

22

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clicking the "download now" link, but it would have

23

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shown up either as a disk image or a zip file with the

24

25

application inside of it.

25

MICHAEL J. HARRIS
MR. EDELSON: Sure.
BY MR. SCHAPIRO:
Q. I posed a question, and you're looking at
some of the exhibits, which you're, of course, entitled
to do. If I may, I'd like to ask first what you
remember without looking back at the exhibits and then
what you remember after looking at the exhibits.
A. Could I consult with my attorneys for a
moment?
MR. SCHAPIRO: Sure. We'll take a break.
THE VIDEOGRAPHER: We are now going off
the video record at 11:34 a.m.
(Recess taken from 11:34 a.m.
to 11:47 a.m.)
THE VIDEOGRAPHER: We are now going back
on the video record at 11:47 a.m.
BY MR. SCHAPIRO:
Q. So Mr. Harris, I think a question might
have been pending when we broke or perhaps I had
interrupted my own question, so why don't we start
fresh.
A. Okay.
Q. I think we had gotten to the point where
you said you would have unzipped a zipped file or done

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MICHAEL J. HARRIS
Q. And just to be clear, you don't recall
whether it was a disk image versus a zip file?
A. No, I do not recall that.
Q. So then what happened?
A. I would have either unzipped or mounted -I'm sorry. I would have either unzipped the zip file or
mounted the disk image in order to gain access to the
application.
Q. Do you recall where you were when you
downloaded this application?
A. In my apartment.
Q. Do you recall where in your apartment?
A. At my desk.
Q. And is that the same address that you gave
us at the beginning of this deposition or it was
somewhere else?
A. Same address.
Q. Okay. So then what happened?
A. Can you give me a moment?
Q. Sure.
A. (Reviewing document.)
MR. SCHAPIRO: Jay, would you mind if I
interrupt for a moment while he's looking at some
documents?

89
MICHAEL J. HARRIS

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whatever the alternative was. Can you remind me what

3

that was?

4

A.

5

Q.

I would have mounted the disk image.
Mounted the disk image.

6

And then I asked you: "What happened

7

next?" And then I amended my question by saying, Could

8

you tell us first what you remember without referring to

9

the exhibits and then you're free to refer to the

10

exhibits as well.
So the question is really just: What

11
12

happened next?

13

MR. EDELSON: And do you mind if I can

14

just -- it might be helpful to explain the confusion or

15

why he asked for the break.
MR. SCHAPIRO: Sure.

16

MR. EDELSON: He wanted to make sure that

17
18

he was giving as accurate an answer as possible, and

19

without breaking any privilege, I think it's -- I think

20

that he was concerned that when you asked him to respond

21

out of memory that you might be confused if he had

22

reviewed the same stuff prior to the deposition. So he

23

just wanted that to be clarified, if that makes sense to

24

you.

25

MR. SCHAPIRO: That makes sense, and I

23 (Pages 86 to 89)
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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that you can install something onto a Mac system that

4

I understand -- and maybe I'll ask some

comment I'm referring to are different types of ways

3

BY MR. SCHAPIRO:
Q.

MICHAEL J. HARRIS

1

appreciate the clarification.

4

92

are the traditional ways that most software developers
in my experience had -- would offer an installation.

5

questions later, but I understand that in the course of

5

6

preparing for this deposition or working on the case

6

PKG is a -- it's handled by package -- the

7

you've looked back at these exhibits as well.
A. (Nodding.)

7

package manager, I believe, on the Mac OS 10. Keeping

8

in mind that it's been at least two years since I used a

9

Mac system, I cannot recall the difference between a PKG

8

Q.

9
10

But -- and that's understood. I'll take

that as a given.

10

For now I'll ask: Just as you sit here at

11

or an installer.
Drag and Drop, the app is where

11

the table, through one source or another, what's your

12

essentially you just click and you drag the application

13

from the disk image to your applications folder to

14

recollection of what happened?
A. Well, my concern was basically that there

14

install it.

15

had been a comment that I had recently reviewed which

15

16

had refreshed my memory on what I had saw thereaf- --

16

17

upon unzipping the -- or mounting the disk image or

17

18

unzipping the file. So I really don't have a memory

18

19

that's not refreshed, in other words, by seeing that

19

20

comment. And you had asked both for a -- without

20

printout from Mac Update. And if you turn to the second

21

looking and looking. So that's -- that was my concern.

21

page, you'll see right in the middle is apparently the

12
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MR. SCHAPIRO: Let's mark this as
Exhibit 9, please.
(Defendant's Exhibit 9 marked for ID)
BY MR. SCHAPIRO:
Q.

Mr. Harris, Exhibit 9 is a -- yet another

And when you say "a comment," you mean one 22
23
of the comments that you had posted in one of these

comment that you were just reading from; is that right?

documents?
A. Yes, sir.

pages of Exhibit 8.

Q.

24
25

A.
Q.

That's correct. It's also on one of the
So you made this comment about it being "a

91
MICHAEL J. HARRIS

1

Q.

2

So prior to reviewing your comments, do

93
MICHAEL J. HARRIS

1
2

cruddy screensaver" and then you added above that or, I

3

you -- this is going to be a recollection within a

3

guess, presumably afterwards the longer warning

4

recollection.

4
5

statement, if I can characterize it as that, correct?
A. Well, as you yourself pointed out, it's
chronological, so later I posted that full statement.

Do you recall whether prior to reviewing

5
6

these comments you had specific recollections of the

6

7

steps that had -- you had followed in March 2010?

7

8

A.

9

Q.

And right before you posted the statement

8

about it being "a pretty cruddy screensaver," a user

9

named Roro01 -- that's R-o-r-o 01 -- cut and pasted some

All right. So now having, in the course

10

did not.

10

Q.

I do recall the answer to that. And no, I

11

of preparing this case or for this deposition, looked

11

12

back at your comments, tell us what you what you recall

12

13

happened when you uploaded the -- when you opened up the 13

14

file.

terms of service into his comment, correct?
MR. EDELSON: Objection. Foundation.

14

THE WITNESS: Yes, I assume.
BY MR. SCHAPIRO:
Q.

And if you look at this statement from

Well, the comment actually puts it well.

15

Roro which immediately precedes yours, Roro writes --

16

It says that -- this was, of course, my opinion, this

16

and I apologize for the court reporter, but I'm just

17

portion, but "A very cloaked custom installation

17

going to read this whole thing in relatively slowly.

18

application, i.e., not the standard PKG," meaning

18

"In order to provide this free download of

19

package, "or installer or Drag Un -- Drag and Drop, the

19

20

app, setup."

20

21

Q.

21

22

that is?

15

23
24
25

A.

A.

And can you in plain English tell us what

7art_screen_land_screensaver -A. Secret Land.
Q.

Sorry, "7art_Secret_Land_Screensaver,

22
Certainly. I'll do my best.
In all honesty, I cannot recall the

specific form it took, but what I rule out in that

PremierOpinion software, provided by VoiceFive, Inc., is

23

included in this download. This software allows

24

millions of participants in an online market research

25

community to voice their opinions by allowing their

24 (Pages 90 to 93)
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL J. HARRIS

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online browsing and purchasing behavior to be monitored,

2

Q.

Now, Mr. --

3

collected and once anonymized, used to create market

3

A.

4

reports, materials and other forms of analysis that may

4

5

be shared with our clients to help our clients

5

strong- -- I have a strong feeling that I did not, but I

6

understand Internet trends and patterns and other market

6

cannot say that with a hundred percent certainty.

7

research purposes. The information which is monitored

7

8

and collected, includes Internet usage information,

8

said that the -- this unusual process had begun on your

9

basic demographic information, certain hardware,

9

computer. Remember that? And you were saying you

I'm sorry. I'd like to amend that. I.
Don't recall one way or the other, but I

Q.

Mr. Harris, I think we left off when you

10

software, computer configuration and application usage

10

didn't remember exactly how the Mac was configured, but

11

information about the computer on which you install

11

you were recreating it?

12

PremierOpinion. We may use the information that we

12

13

monitor such as name and address to better understand

13

14

your household demographics for example we may combine 14

15

the information that you provide us with additional

15

talking about what happened when you installed the

16

information from consumer data brokers and other data

16

screensaver, correct?

17

sources in accordance with our privacy policy. We make

17

18

commercially viable efforts to automatically filter

18

you were talking -- you were -- "download now" link and

19

confidential personally identifiable information and to

19

then what form it arrived, zip or image, is that what

20

purge our databases of such information about our

20

you're referring to? Or....

21

panelists when inadvertently collected."

21

Q.

Yeah.

22

A.

Okay.

Q.

And then you referred to the "cloaked

22

And then the -- Roro, just to finish,

23

writes "The developer should have made this CLEAR," in

23

24

all caps, "in the product description above," referring

24

25

to presumably, the top of the page, "yet he didn't

25

A.

I'm sorry, sir. I don't understand the

question.
Q.

A.

Before we went to Roro's comment, we were

I think you had asked me what -- what --

custom installation application," correct?
A.

Yes.

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MICHAEL J. HARRIS

1
2
Did I read that correctly?
3
A. Aside from him saying "The Sting" before
4
the quote, I think you did.
5
Q. Yes, the subject line says "The Sting."
6
Did you use -7
A. I'm sorry, not -- I don't mean to quibble,
8
but just because it's a court proceeding and all that,
9
to be really pedantic, I don't think the comments
10
actually have subject lines. It's just the first thing
11
he typed.
12
Q. I see.
13
A. But it -- I admit it's a pedantic point.
14
I'm just -- you know.
15
Q. Did you see these terms of services -- do
16
you recall one way or another whether you saw the terms 17
of service that Roro reproduces here during the course
18
of your -- before or during the course of your
19
installation of the software?
20
MR. EDELSON: Objection. Lacks
21
foundation. Assumes facts not in evidence.
22
BY MR. SCHAPIRO:
23
Q. You may answer.
24
A. I don't recall one way or the other.
25
mention it at all."

97
MICHAEL J. HARRIS
Q. So I'd like you to just continue telling
us what happened as best you can remember.
A. Are you asking from -- from bare memory or
are you asking from -- in terms of what I can remember
from after looking at these documents?
Q. Thanks. Why don't you give us both?
A. Okay. In terms of bare memory, I have
very little memory of these specific events having been
two years in the past. From what I remember, it was
that a menu extra showed up and -- on my menu bar.
And by "show up," I think that probably
deserves better clarification because it was a white
star on a white menu bar, and I would not have noticed
its installation except for the fact that it displaced a
menu extra, causing a white gap on the bar, which is
something that doesn't actually occur on a Macintosh.
They're all right justified. So when I noticed that
unusual behavior, I clicked on the white space and, you
know, saw the information.
I presume at that time the comment
actually describes much of what I tried to do, the
comment history: "If you try to quit this menu extra
using tools such as Activity Monitor the application
will restore because on installation this screensaver's

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MICHAEL J. HARRIS
installer also installs a launch de- -- daemon whose job
it is to make sure that their spyware can't be quit, and
while their uninstaller does work, if you take them at
their word, it is also deceptively phrased as (if my
memory serves me correctly) the screensaver's
uninstaller uninstalled 'merely' the screensaver,
leaving the spyware in place; you have to run the
SPYWARE's uninstaller to properly remove yourself of -remove yourself of the thing or take it all out
manually."
And I think that probably accurately
describes the steps I took, considering it was written
very shortly thereaf- -- after I had been uninstalling
the application.
Q. Can you look back at Exhibit 7, please?
A. Yes.
Q. That's the document provided to us by your
attorneys. If you look at the last page of that, the
one that ends 07 -A. Yes.
Q. -- in this comment, which is also from
March 9th apparently, you say, "Fortunately,
PremierOpinion uninstall in that directory appears to
have gotten rid of the whole mess."

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MICHAEL J. HARRIS

1
2

program, but it was very, very resistant to taking out

3

that way, so I finally had to trust your company's

4

uninstaller program to do so. Even then, as I refer --

5

as I described, there's separate uninstallers for both

6

the screensaver and the spyware, meaning that it's very

7

easy to mistakenly run the uninstaller for the

8

screensaver, only to find that the spyware is still in

9

place.

10

Q.

And is it possible to keep the screensaver

11

without keeping the software that you refer to as

12

"spyware"?
A. I have no knowledge of that.

13
14

Q.

And do you have any evidence that the

15

comScore software remained on your computer after you

16
17

ran the PremierOpinion uninstall?
A. I could not locate anything, but I -- as I

18

said, I didn't trust your company's uninstaller.

19
20
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Q.
A.

Now, this was in March 2010, correct?
Correct.

Q.

How soon after that time did you switch

23

over to a computer that ran Windows, a non-Macintosh?
A. I want to be accurate in how I describe --

24

how I answer your question, but the answer is slightly

25

pedantic, so forgive me.

22

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MICHAEL J. HARRIS

1

What are you referring to when you say

2
3
4

"that directory"?
A.

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1

As you had referred to earlier in the

2
3

From the context, I would presume "that

deposition, my parents shipped me a -- my mother's old

4

laptop after she had bought a new one. For a short
period of time that had Windows on it, but finding -- it

5

directory" would be the Applications/PremierOpinion

5

6

directory, which Applications would have been one

6

was a very old laptop and it didn't run it very well, so

7

directory. PremierOpinion would have been a folder

7

I tried Linux.

8

within that.

8

9

Q.

9

Windows system didn't occur until after I had got it --

And so you apparently had gone to the

However, permanently going over to a

10

PremierOpinion folder and found the uninstall -- what

10

after I had found work and bought myself the Toshiba

11

would we call it, process, application?

11

laptop, and it was at that time that I went full-time
with Windows.

12

A.

It would have been an application.

12

13

Q.

-- the uninstall application and that's

13

14

what you used to remove the comScore software, correct?

After a short period of time where I'd

14

tried both the Winux -- the Windows and the Linux on my

15

A.

After attempts to do it otherwise, yes.

15

mother's laptop, I struck upon the booting off of the --

16

Q.

When you refer at times to manually

16

you know, I went to see if I could continue working off

18

removing things, what do you mean by a manual removal? 17
18
A. With respect, I didn't trust your

19

company's uninstaller and I felt that any company that

19

20

would install spyware without me -- without being very

20

21

up front about it, that you don't trust their

21

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uninstaller similar to the way that you don't trust an

22

time you used a Macintosh or something with a Macintosh

23

unsubscribe link on a piece of spam that you get.

23

operating system as your own computer was around time of

24

So I tried to do it every way that I could

24

the hard drive failure?

17

25

think of manually myself rather than trust the uninstall

25

the Mac with the --- working off the back-up drive,
given that its internal drive had failed.
So that's a long answer, but it is -- it's
the truthful specifics.
Q.

A.

And so is it fair to say that the last

The hard drive failure failed on March --

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MICHAEL J. HARRIS
in March 2010. Briefly I tried the Windows and Linux
operating systems, but then I returned to the Mac
operating system on that same failed computer but
booting off the back-up drive. That continued until
about August.
So it'd be accurate to say that the last
time I used a Macintosh for my personal computing would
be in August 2010.
Q. Did you review the complaint prior to its
filing?
A. I can't recall for certain, but I strongly
believe so.
Q. Do you know if there are things in the -statements in the complaint that you disagree with?
A. I don't believe there are any such
statements.
MR. SCHAPIRO: Mark that.
(Defendant's Exhibit 10 marked for ID)
BY MR. SCHAPIRO:
Q. So I'd ask you to take a look at
paragraph 6 of the complaint.
A. (Witness so doing.)
Q. And paragraph 6 reads, "To extract this
data comScore's surveillance software injects code into

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MICHAEL J. HARRIS

1
2

A.

My understanding is that as -- well, I

3

would have to stand by my original answer to your

4

question about 6, about clause 6. I had very little

5

experience, personal experience with it running

6

unhampered on my -- with your surveillance software

7

running unattended or unhampered on my system because I

8

noticed it immediately and tried to remove it. So I do

9

not know if on -- with No. 6 or No. 9 whether that would

10
11

happen on my Macintosh system.
Q.

Referring to paragraph 16 now, the

12

complaint reads, "Even if a monitored consumer can

13

manage to manually uninstall the surveillance software,

14

Defendant programmed its applications to secretly leave

15

behind a comScore root certificate. As discussed in

16

more detail in Section VII infra, leaving an untrusted

17

root certificate on a user's computer exposes that

18

individual's -- that individual to attacks by hackers,

19

and allows comScore to remonitor the consumer's computer

20

in the future."
Did I read that correctly?

21
22

A.

Yes.

23

Q.

And are you alleging in this case that a

24
25

root certificate was placed on your computer?
MR. EDELSON: I have a few objections.

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MICHAEL J. HARRIS

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clicked or inputted online. In addition, the software
4
opens ports, modifies the consumer's firewall and places
5
root certificates on the affected computer to ensure
6
unimpeded access."
7
Did I read that correctly?
A. It appears to be what it says.
8
9
Q. And are you claiming in this case that all
10
those things happened to your computer?
A. I do not know fully what that soft- -11
what the surveillance software does when left
12
unattended. As soon as I noticed it, I went to
13
uninstall it.
14
15
Q. How about paragraph 9? The complaint
16
reads, "Furthermore, comScore's surveillance software
17
seeks out and scans every file on the monitored
18
consumer's computer (including word processing
19
documents, e-mails, PDFs, image files, spreadsheets, et
cetera) and sends information resulting from examination 20
21
of those files to comScore's servers."
22
Did I read that correctly?
A. You did.
23
24
Q. Are you alleging in this lawsuit that this
25
happened to you?
the user's web browser to monitor everything viewed,

105
MICHAEL J. HARRIS
First of all, you're taking paragraphs out
of context, which is just going to make the record
confusing. Second, you're using terms of art including
the word "alleging," which, frankly, I don't even know
what you mean and am apparently a lawyer.
And so I think that it's all incredibly
confusing what it is you're asking and you're just
asking in order to get a confused answer. But he can
answer if he understands.
MR. SCHAPIRO: I'll object to the
coaching.
BY MR. SCHAPIRO:
Q. Do you understand the question?
A. I don't know if this is too much
information, but I'm going to just try to answer it this
way: I have no knowledge of what your surveillance
software does when it's not let -- when it's allowed to
run unencumbered freely on a Macintosh computer. My
understanding is that my co-plaintiff encountered some
of these problems, but I have no personal experience of
his problems with the Windows version of your
surveillance software. As for what the Mac version of
your surveillance software does, I have no knowledge of
it because I noticed it immediately and acted to get it

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MICHAEL J. HARRIS
off my system.
Q. Do you have any -A. That would -- I apologize.
Q. That's fine.
A. Didn't mean to interrupt you.
And that would pretty much stand for my
answers to your questions about 6, 9 and 16 would be an
amendment or an expansion on my previous answers to
those.
Q. Separate from any reference that you might
have made to the complaint during the course of this
case, do you have knowledge of what a root certificate
is?
A. I don't have certain knowledge, no.
I believe I know, but -Q. Do you claim that comScore improperly
shared any of your personal data with any party?
A. I have no knowledge of what comScore did
with my personal data.
Q. Can you tell me in your own words how you
believe you were harmed by comScore?
A. I think that I have a right to -- if
personal information of mine is going to be collected
and shared, especially for commercial profit, I believe

108
MICHAEL J. HARRIS
I worked my way through college partially

1
2

A.

3

at a computer help desk within my college and have done

4

various computer training as part of my career.
MR. SCHAPIRO: Why don't we take

5
6

five minutes and I think I'll be able to decide whether

7

we can have a short-MR. EDELSON: Sure.

8

MR. SCHAPIRO: -- set of questions and

9
10

therefore we don't need to have a lunch break or whether

11

there's enough that we should have a lunch break.
MR. EDELSON: That's fair.

12

THE VIDEOGRAPHER: Here ends Tape No. 2.

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14

We're now going off the video record at 12:18 p.m.

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(Recess taken from 12:18 p.m.
to 12:32 p.m.)

16

THE VIDEOGRAPHER: Here begins Tape No. 3.

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We're now going back on the video record at 12:32 p.m.
BY MR. SCHAPIRO:
Q.

Q.

We've seen him on Tumblr.
Were you -- was your computer hooked up to

24
25

Mr. Harris, during the time at issue in

March 2010, did anyone else live in your home with you?
A. No. Unless you count my cat Charlie.

a network of any kind?

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MICHAEL J. HARRIS
I have a right to see that in very clear, up front,
flashing lights terms and for it not to be done
surreptitiously. Not only me, but anyone.
Q. Anything else?
A. My information was gathered for the sh- -during the period of time that it was on my system and I
have knowledge of what data was gathered and what use it
was put to. I feel that's an intrusion upon my privacy
and that that was harm done.

MICHAEL J. HARRIS

1

Q.
A.

Anything else?
I think I've said e- -- my piece.

Q. And what's your basis for saying that your
information was gathered?
A. My understanding is that that's what this
software does.

2

A.

It would depend on how you define "a

3

network".

4

Q.

Why don't you walk us through it?

5

A.

Well, I did use a wireless router, so I'm

6

not entirely sure whether that would broach a network

7

status or not.

8
9
10
11
12

Q.

Okay. But other than using a wireless

router, you weren't -- your computer was not connected
to a server somewhere else or other computers elsewhere?
A.

Not that I can recall, no.

Q.

In the post about your defective or

13

damaged Western Digital hard drive you used that phrase

14

"I/O errors" which you told me probably means

15

input/output errors?

16

17
Q. Do you have any friends or acquaintances
who to your knowledge downloaded comScore software? 18
19
A. None that I know of.
20
Q. How far did you go in school?
21
A. I have a bachelor's degree.
22
Q. In?
23
A. Theater.
24
Q. And do you have some computer training
25
from work or elsewhere?

A.

Well, I can state with certainty I/O

errors would have referred to input/output errors.
That's literally what it means. But I think I -- if I
remember my testimony from earlier today, I believe that
it probably referred to read/write errors on my hard
drive.
Q.

And do you recall whether you were having

any other problems with your hard drive?
A.

I can't recall any other than that, but

that's a pretty significant one.

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3
asked you about the specifications for your iMac, you
answered a number of my questions by saying you couldn't 4
5
recall, but in your Interrogatory Answers, which are
6
Exhibit 3, you provide some very, very specific
7
responses. This is in Answer No. 4 of Exhibit 3.
8
So I want to ask first whether the answer
9
you provided in No. 4 is accurate?
10
MR. EDELSON: I have to first object to
11
the initial characterization, or more accurately,
12
mischaracterization in your preamble.
13
MR. SCHAPIRO: The transcript will speak
14
for itself.
15
MR. EDELSON: Correct.
16
BY MR. SCHAPIRO:
17
Q. I'll ask it with regard to No. 4. These
18
specifications about model, graphics, memory, airport,
19
bluetooth, et cetera, to the best of your knowledge, are
20
they accurate?
21
A. Yes.
22
Q. And if you don't -- strike that.
23
On what did you rely to prepare this
24
answer?
25
A. When a Macintosh generates a crash report,
Q.

When we asked you about the -- when I

MICHAEL J. HARRIS
Q. And this doesn't tell us what the
operating system was? Or does it? I'm not good at
reading these things.
A. (Reviewing document.)
I do not believe it does, no.
Q. How far back does your Gmail go in time?
A. I have -- I'm not certain.
Q. But it goes back to the time -- at least
to the time at which you were using the Macintosh,
right?
A. Yes.
Q. Have you searched your Gmail for any
contemporaneous correspondence about the comScore
download?
A. I think at one point I did.
Q. You think?
A. Yes.
Q. And what's your level of confidence?
A. I think about anywhere from 60 to 70%
would be a rough guess of how confident I am.
Q. And remind me what your other two e-mail
accounts are.
A. In terms of my earlier response?
Q. Yes, please.

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MICHAEL J. HARRIS
it appends information about the computer system it's on
to the crash report.
Previously on other occasions when
software programs would malfunction or just to help
someone debug something, I would send them a crash
report. That meant that these crash reports were in my
Gmail, so I was able to get the technical information
that were in -- was in these crash reports about my
system from crash reports I had e-mailed to developers
in the past.
Q. And these crash reports were sent during
the time in question, so that we know that it's the same
computer?
A. It would depend on how you define "the
time in question."
Q. Why don't we say March 2010.
A. I'm not certain of that.
Q. What's your best -- to the best of your
ability, can you tell us when the crash reports were
generated?
A. In all honesty, I cannot remember what
date the technical report -- the -- that this data came
from was issued. It would have been for the same
computer, but on what date, I'm uncertain.

113
MICHAEL J. HARRIS

1
2

A.

[e-mail] and

3

[e-mail] was an e-mail address I didn't use --

4

or I don't use anymore.

5
6
7

Q.

Which Gmail address did you use for the

crash reports? Or did you -- would you use both?
A.

103 was only a very recent e-mail

8

addre- -- the mikeharris103 is only a very recent

9

creation. It wasn't contemporaneous for this

10

(indicating).
So it would have been either mikeharris19

11
12

or it would have been -- I'm sorry. I neglected in this

13

recent reiteration windycitypoe. I did say that

14

earlier, but not -- not this time around. I'm not

15

certain whether I used windycitypoe or mikeharris19 or

16

even wcitymike@rcn to -- for these crash reports. It

17

may have been at one point all three.
Certainly if a program was malfunctioning

18
19

or didn't work and I was in the mood to help a

20

developer, I'd pass along a crash report. So it was an

21

occasional -- it could have happened on any one or all.

22

Q.

And so I'll ask the same -- I asked

23

generally about Gmail earlier when I said: Have you

24

checked your Gmail for contemporaneous e-mails about the

25

comScore software?

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DAVID FELDMAN WORLDWIDE, INC.
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MICHAEL J. HARRIS

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to cover all your Gmail accounts, and I'll ask the same
4
question about RCN. Does that change your answer?
A. Any existing e-mails are currently
5
consolidated under my existing Gmail account. So by
6
checking it, I'll be checking all e-mail addresses that
7
I have access to.
8
9
Q. What type of -- what service do you use
10
for Internet access today?
A. RCN.
11
12
Q. And did you use RCN back in March of 2010
13
as well?
A. Yes.
14
15
Q. Did you run any -- did you have any type
16
of antivirus software on your iMac?
A. No.
17
18
Q. If we wanted to verify that you in fact
downloaded the comScore software and the computer onto 19
20
which you downloaded it is gone, is there any other way
21
we might verify that?
MR. EDELSON: Objection. Foundation.
22
BY MR. SCHAPIRO:
23
24
Q. To your knowledge?
A. I have no knowledge of a way to do that.
25
Just to be clear, I'd like that question

MICHAEL J. HARRIS
may be that we -- after those issues get cleared up, we
may have more questions.
MR. EDELSON: We -- we hear what you're
saying and, of course, you know, believe that you've had
a huge opportunity to ask as many questions as you want,
which you did, and I think you got a full -- full sense
of the story. But we're happy to listen to anything you
have to say and respond in kind.
MR. SCHAPIRO: Good day.
MR. EDELSON: Thank you.
THE VIDEOGRAPHER: Here ends today's
testimony. We're now going off the video record at
1 o'clock p.m.

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Q. Other than asking you?
A. Yeah, other than my sworn -- other than my
sworn testimony that I did. So...
MR. SCHAPIRO: I have nothing further.
MR. EDELSON: We'd like to take a
five-minute break, and then I'm not sure if we'll have
questions or not.
MR. SCHAPIRO: Um-hum.
MR. EDELSON: Thanks.
THE VIDEOGRAPHER: We are now going off
the video record at 12:42 p.m.
(Recess taken from 12:42 p.m.
to 12:59 p.m.)
THE VIDEOGRAPHER: We are now going back
on the video record at 12:59 p.m.
MR. EDELSON: Oh. We have no questions
for the witness.
MR. SCHAPIRO: And there are a couple of
open issues that arose during the deposition, so while
we're finished for today, we're going to treat this as
continuing pending your getting back to us on -- we can
look back at what they were, the back-up disk -- the
back-up hard drive, the Toshiba, the checking of the
e-mails. I don't recall exactly what they were, but it

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MICHAEL J. HARRIS
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.
) No. 1:11-cv-5807
COMSCORE INC., a Delaware corporation )
Defendant.
)
I hereby certify that I have read the
foregoing transcript of my deposition given at the time
and place aforesaid, consisting of pages 1 to 116,
inclusive, and I do again subscribe and make oath that
the same is a true, correct, and complete transcript of
my deposition so given as aforesaid and includes
changes, if any, so made by me.
________________________________
MICHAEL J. HARRIS
SUBSCRIBED AND SWORN TO
before me this _____ day
of ______________, A.D. _________.

24
25

_____________________________
Notary Public

30 (Pages 114 to 117)
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]