Dunstan et al v. comScore, Inc.

Filing 212

STATUS Report by Jeff Dunstan, Mike Harris (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,
Plaintiffs,

Case No. 1:11-cv-05807
Hon. James F. Holderman

v.

Magistrate Judge Young B. Kim

COMSCORE, INC., a Delaware corporation,
Defendant.
JOINT STATUS REPORT
Pursuant to the Court’s July 26th Minute Order, Plaintiffs Mike Harris and Jeff Dunstan
(collectively, “Plaintiffs”) and Defendant comScore, Inc. (“Defendant” or “comScore”), hereby
submit this Joint Status Report to apprise the Court of any written discovery issues.
I.

PLAINTIFFS’ POSITION
On July 31, 2013, Plaintiff Dunstan propounded his First Set of Interrogatories and

Requests for the Production of Documents and Plaintiff Harris propounded his Second Set of
Interrogatories on Defendant comScore. Plaintiffs’ requests seek information about: (1) the
circumstances surrounding the design and development of OSSProxy; (2) the process and
manner in which comScore determined the types of information that it collects and transmits
from Panelists’ computers through OSSProxy; (3) the value that comScore ascribes to the
information collected, whether from the sale of the information or otherwise; (4) the process,
manner, and circumstances surrounding the drafting of, and subsequent modifications to, any
applicable Terms of Service, User License Agreements, and Privacy Policies; (5) the process by
which comScore supposedly “fuzzifies” confidential information; (6) the process by which

comScore supposedly “purges” confidential information collected by OSSProxy; (7) the types of
data that comScore makes available to its clients and third party bundling partners, whether by
sale or otherwise, including their identities, any contracts and other agreements in place between
them, and the total top-line revenue and profit generated from the same; (8) any and all
complaints that comScore has received regarding OSSProxy; and (9) the contact information that
comScore has for Class and Subclass members.
Plaintiffs believe that comScore’s discovery responses are deficient and in need of
supplementation. Those deficiencies include comScore’s improper assertion of certain
objections, its failure to answer Plaintiffs’ Interrogatories with sufficient detail (or provide any
answers to certain Interrogatories at all), and its unwillingness to produce certain documents in
response to Plaintiff Dunstan’s requests. Plaintiffs outline the deficiencies in comScore’s
responses to their written discovery requests in a meet and confer letter sent on September 16,
2013, and have requested a meet and confer to take place on those issues.
At the same time, the Parties have also been meeting and conferring on notice-related
issues. To date, the Parties have exchanged several letters and have held several conference calls
regarding those issues and have scheduled a deposition to take place on October 3, 2013 relating
to the same.
II.

DEFENDANT’S POSITION
On August 9, 2013, comScore propounded its Second Set of Interrogatories and First Set

of Requests for Production of Documents to Plaintiffs, as well as its First Set of Requests for
Admission to Harris and its First Set of Requests for Admission to Dunstan. Generally,
comScore is seeking information pertaining to (1) Plaintiffs’ acceptance of comScore’s Privacy
Statement, User License Agreement, and Downloading Statement; (2) the contractual agreement

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between Plaintiffs and comScore or comScore’s affiliates, and the terms thereof; (3) the type of
information that Plaintiffs claim comScore collected from them, particularly the information that
Plaintiffs claim exceeded their consent; (4) if and why Plaintiffs contend that comScore’s
fuzzification process violates the Stored Communications Act, the Electronic Communications
Privacy Act, or the Computer Fraud and Abuse Act; (5) if and why Plaintiffs contend that
comScore’s fuzzification process is not a commercially viable effort to automatically filter
confidential information; (6) if and why Plaintiffs contend that comScore’s purging process is
not a commercially viable effort to purge confidential information; (7) the damages or losses
claimed by Plaintiffs under the Computer Fraud and Abuse Act; and (8) the programs or
processes running on Plaintiffs’ computers at the time they allegedly downloaded OSSProxy.
It is comScore’s position that Plaintiffs’ discovery responses, dated September 5, 2013,
are deficient and require supplementation. For example, the majority of Plaintiffs’ interrogatory
answers are nonresponsive and Plaintiffs have also refused to produce responsive documents.
These and other deficiencies have been detailed in a meet and confer letter to be sent to Plaintiffs
on September 17, 2013.
Respectfully submitted,
MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of a class of similarly
situated individuals,
Dated: September 16, 2013

By: /s/ Rafey S. Balabanian
One of Plaintiffs’ Attorneys
Jay Edelson
Rafey S. Balabanian
Ari J. Scharg
Benjamin S. Thomassen
Chandler R. Givens
EDELSON LLC
350 North LaSalle, Suite 1300

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Chicago, Illinois 60654
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Counsel for Plaintiffs and the Class and Subclass
COMSCORE, INC.
Dated: September 16, 2013

By: /s/ Andrew H. Schapiro
One of Defendant’s Attorneys
Andrew H. Schapiro
Stephen A. Swedlow
Robyn M. Bowland
QUINN EMANUEL URQUHART & SULLIVAN, LLP
500 West Madison Street, Suite 2450
Chicago, Illinois 60661
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Paul F. Stack
Mark W. Wallin
STACK & O’CONNOR CHARTERED
140 South Dearborn Street, Suite 411
Chicago, Illinois 60603
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Counsel for Defendant comScore, Inc.

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CERTIFICATE OF SERVICE
I, Rafey S. Balabanian, an attorney, hereby certify that on September 16, 2013, I served
the above and foregoing Joint Status Report, by causing true and accurate copies of such paper
to be filed and transmitted to all counsel of record via the Court’s CM/ECF electronic filing
system on this 16th day of September 2013.
/s/ Rafey S. Balabanian

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