Dunstan et al v. comScore, Inc.

Filing 215

MOTION by Plaintiffs Jeff Dunstan, Mike Harris for extension of time to complete discovery Motion to Modify Judge Holdermans Scheduling Order (Attachments: # 1 Exhibit 1)(Thomassen, Benjamin)

EXHIBIT 1

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,

Case No. 1:11-cv-5807

Plaintiffs,

Hon. James F. Holderman

v.

Magistrate Judge Young B. Kim

COMSCORE, INC., a Delaware corporation,
Defendant.

DECLARATION OF RAFEY S. BALABANIAN IN SUPPORT OF
PLAINTIFFS’ MOTIONS TO MODIFY SCHEDULING ORDER
I, Rafey S. Balabanian, pursuant to 28 U.S.C. § 1746, hereby declare as follows:
1.

I am a Partner at the law firm of Edelson LLC, which has been retained to

represent Plaintiffs Mike Harris and Jeff Dunstan (collectively, “Plaintiffs”) in this matter. I am
an adult over the age of 18 and I am fully competent to make this Declaration. I have personal
knowledge of all matters set forth herein. If called upon to testify as to the matters stated herein, I
could and would competently do so.
2.

Presently, the Parties are engaged in the merits phase of discovery in this case and

are concurrently working through issues relating to the provision of notice to the certified Class
and Subclass—in fact, Plaintiffs are scheduled to take the deposition of a comScore Rule
30(b)(6) designee on notice-related issues on October 3, 2013 in Chicago, Illinois.
3.

On July 31, 2013, Plaintiffs propounded their first merits-based discovery

requests on Defendant comScore, Inc. (“Defendant” or “comScore”)—which included both
interrogatories and requests for the production of documents.
4.

comScore served its written responses to those requests a month later, on August
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30, 2013. At that point, though, comScore only promised to “produce copies of located,
responsive, relevant, non-privileged documents to the extent that such documents exist and are in
comScore's custody or control that have not already been produced by comScore,” rather than
producing any documents outright.
5.

comScore produced documents in response to Plaintiffs’ requests on September

17, 2013, which were contained on a hard drive and bates labeled “CS0016909-CS0096420.”
6.

comScore stated that it produced documents on September 9, 2013 (i.e., the

production deadline set by this Court), but due to some sort of apparent mix up with the delivery
of the hard drive by FedEx, Plaintiffs’ counsel—despite thoroughly searching both their offices
and the lobby of their building for the hard drive (at comScore’s request)—could not locate the
hard drive and doesn’t believe it was delivered on that date. Moreover, the staff member who
FedEx claimed signed for the hard drive had no recollection of doing so.
7.

comScore then promised to have a replacement hard drive delivered by

September 16, 2013, but that too was delayed for some reason. As noted above, it wasn’t until
September 17, 2013, that Plaintiffs received comScore’s document production by way of the
replacement hard drive.
8.

The Parties’ filed a joint status report on September 16, 2013 wherein Plaintiffs

identified certain deficiencies with comScore’s written discovery responses. (Dkt. 212.) That
report was filed before Plaintiffs knew how many pages of documents would eventually be
produced by comScore, or knew anything about the substance of comScore’s promised
document production. At that point, Plaintiffs then expected to receive documents totaling
roughly 80,000 pages.
9.

Upon receipt of the hard drive, Plaintiffs’ counsel quickly learned that it

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contained approximately 80,000 individually Bates-numbered files, which collectively spanned
over 1.5 million printed pages. And while much of that production appears to be relevant to the
merits of this litigation, parts of it plainly are not. For example, the production includes the
contract for the purchase of (what appears to be) comScore’s Rule 30(b)(6) designee’s personal
residence, dozens of spam emails received by various comScore employees, and invoices from
comScore’s own counsel relating to the defense of this case.
10.

Plaintiffs also note that part of comScore’s production appears to be records of

payment of attorneys’ fees to comScore’s counsel by an insurance carrier. This is troubling
inasmuch as comScore never disclosed—either in its initial disclosures or otherwise—that there
is any insurance covering the claims alleged in this case. Plaintiffs have not fully analyzed these
documents, so they take no position at this point as to whether comScore willfully withheld
information related to its insurance coverage for this matter, but to the extent it has any such
coverage and failed to disclose it in accordance with the Federal Rules, Plaintiffs intend to bring
that issue to the Court’s attention, as in their view it would constitute a serious violation of
comScore’s obligations in discovery.
11.

Given that production, attorneys at my firm have been working (and continue to

work) through comScore’s produced documents to (i) identify and separate potentially relevant
portions of the production from those portions that have no bearing on this matter at all, (ii)
figure out which portions of the 1.5 million pages match up to their different document requests,
(iii) determine whether additional written requests are necessary based on new information
learned through this latest round of discovery, and then (iv) identify areas where comScore
promised to produce documents but failed to do so, for the purposes of timely filing required
motions to compel with this Court.

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12.

Most recently, on September 26, 2013, the Parties met and conferred

telephonically regarding identified discovery issues, and on September 30, 2013, Plaintiffs
followed up with a letter memorializing the details discussed during that call. The very first point
addressed in that letter was Plaintiffs’ current position that an extension to the present discovery
deadlines (i.e., those addressed through the accompanying Motion) would be necessary so as to
allow Plaintiffs sufficient time to review and analyze comScore’s massive document production.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 2nd day of October 2013 at Highlands Ranch, Colorado.
s/ Rafey S. Balabanian

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