Dunstan et al v. comScore, Inc.

Filing 185

DECLARATION of Benjamin S. Thomassen regarding reply to response to motion 184 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Balabanian, Rafey)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of a class of similarly
situated individuals,

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

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

DECLARATION OF BENJAMIN S. THOMASSEN
I, Benjamin S. Thomassen, hereby declare and state as follows:
1.

I am an attorney at the law firm of Edelson LLC, I am admitted to practice law in

the State of Illinois, and I represent Plaintiffs Mike Harris and Jeff Dunstan in the above-titled
action. I am over the age of eighteen and am fully competent to make this declaration. This
declaration is based upon my personal knowledge, except where expressly noted otherwise.
2.

True and correct copies of excerpts from Mike Harris’s deposition transcript are

attached hereto as Exhibit A.
3.

In response to comScore’s First Set of Requests for the Production of Documents

in this matter, Plaintiffs produced several screenshots captured from the website
“macupdate.com,” true and accurate copies of which are attached hereto as Exhibit B, and
marked as Harris-Dunstan 0001-0007.
4.

Exhibit B shows several comments posted by macupdate.com users, including one

uploaded by an individual using the alias “Wcitymike,” time stamped March 9, 2010. Harris

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explained in his deposition that he uses the alias “Wcitymike” on the macupdate.com website,
and that he posted the comments shown in Exhibit B. (See Ex. B at Harris-Dunstan 0006-0007.)
5.

On March 18, 2013, I confirmed that macupdate.com doesn’t require users to “log

in” to download software hosted on the website. I verified the foregoing through the following
steps conducted on a Macintosh (running OS X) and using the Google Chrome web browser:
a.

I first navigated to the website “macupdate.com” and visually confirmed

that, upon reaching the main webpage, I was not “logged in” to any account (text located
in the upper right hand corner of the webpage invited me to either “Sign In or create
account”);
b.

Next, I clicked on a hyperlink offering “free” software titled “SourceTree

c.

Upon clicking the hyperlink, I was directed to another webpage,

1.5.8”;

“http://www.macupdate.com/app/mac/35643/sourcetree,” where I then clicked on another
hyperlink labeled “Download Now.” This action triggered the display of a dialog box
informing me that the file “SourceTree_1.5.8.dmg” would be downloaded to my hard
drive, and requesting that I identify a target download location;
d.

After selecting a target folder and clicking “Save,” I successfully

downloaded the “SourceTree_1.5.8.dmg” file onto my hard drive.
6.

To verify that macupdate.com users also weren’t required to “log in” to download

software in March of 2010—when Harris posted the above-referenced comments—I used the
Internet Archive’s “Wayback Machine” to access archived versions of www.macupdate.com.
7.

According to the website’s “About” page, The WayBack Machine, (URL:

www.archive.org), allows users to “[b]rowse through over 240 billion web pages archived from

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1996 to a few months ago.” Users simply “type in the web address of a site or page where [they]
would like to start, and press enter. Then select from the archived dates available. The resulting
pages point to other archived pages at as close a date as possible.” The archiving is constant and
systematic, and serves as a perpetual Internet time capsule.
8.

On March 18, 2013, I confirmed that macupdate.com didn’t require users to “log

in” to download software hosted on the website in March of 2010. I verified the foregoing
through the following steps conducted on a Macintosh (running OS X) and using the Google
Chrome web browser:
a.

First, I navigated to the Wayback Machine’s website,

“http://web.archive.org/web/web.php,”;
b.

Next, I entered “macupdate.com” into the Wayback Machine field prompt

and clicked on the “Take Me Back” button, which directed me to the following webpage:
“http://web/20100316192040/ http://www.macupdate.com/” (dated March 16, 2010);
c.

Upon reaching the website, I visually confirmed that I was not “logged in”

to any account (text located in the upper right hand corner of the webpage invited me to
“login”);
d.

Next, I clicked on a hyperlink offering software titled “Querious 1.0b2,”

which was described as “shareware;”
e.

I was then directed to the webpage,

“http://web.archive.org/web/20090227100753/
http://www.macupdate.com/info.php/id/29981/querious?,” where I clicked on a hyperlink
titled “Download Now,” which triggered the display of a dialog box informing me that
the file “Querious.dmg” would be downloaded to my hard drive, and requesting that I

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identify a target download location;
f.

After selecting a target folder and clicking “Save,” I successfully

downloaded the “Querious.dmg” file onto my hard drive.
9.

On August 21, 2012, Andrew Schapiro, counsel for comScore, sent an e-mail to

my firm’s managing partner, Jay Edelson, explaining that “comScore planned to subpoena the
relevant work records for Mr. Dunstan from [his employer,] Sears.”
10.

That same day, Mr. Edelson emailed Mr. Schapiro asking whether comScore

would “mind if we approached Sears first” and that Dunstan could “[p]erhaps simply request [the
records].”
11.

On August 22, 2012, Mr. Schapiro responded via e-mail that comScore “need[ed

the records] directly from the source so that we can be confident that they’re genuine and
accurate” and offered to “wait until Monday [August 27th]” before serving the subpoena on
Dunstan’s employer.
12.

Two days later, on August 24, 2012, Jeff Dunstan called me and explained that

his wife, Lori Baxter, was served at her home with two separate subpoenas to appear for
depositions in this matter (the first subpoena lacked a signature).
13.

On August 25, 2012, the Parties met and conferred to discuss the subpoenas

served on Dunstan’s wife and comScore’s intent to subpoena Dunstan’s work records from his
employer. During that meet and confer, the Parties agreed that Plaintiffs’ counsel would
investigate the information sought through the subpoenas and follow-up with their results.
14.

After investigating the matter, I e-mailed comScore’s attorney Stephen Swedlow

on August 28, 2012, and explained, inter alia, that (1) Jeff Dunstan was not scheduled to work
on the date indicated by comScore’s records as the day OSSProxy was downloaded to and

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installed on his personal computer and (2) Lori Baxter was scheduled to work on that same date
and was therefore, in all likelihood, not home when OSSProxy was downloaded to and installed
on Dunstan’s personal computer. A true and accurate copy of that email is attached hereto as
Exhibit C.
15.

Plaintiffs’ counsel never received any reply to the email referenced supra, ¶ 14.

I declare under penalty of perjury that the foregoing is true and correct.
Executed this 19th day of March, 2013 at Chicago, Illinois.

/s/ Benjamin S. Thomassen
Benjamin S. Thomassen

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