Dunstan et al v. comScore, Inc.

Filing 225

DECLARATION of Rafey S. Balabanian regarding motion to compel 224 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11)(Thomassen, Benjamin)

EXHIBIT 7

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September 30, 2013
VIA ELECTRONIC MAIL
Mr. Andrew H. Schapiro
Ms. Robyn M. Bowland
QUINN EMANUEL URQUHART & SULLIVAN, LLP
500 West Madison Street, Suite 2450
Chicago, Illinois 60661
[e-mail]
[e-mail]
Re:

Dunstan, et al. v. comScore, Inc., No. 1:11-cv-05807 (N.D. Ill.)

Dear Andy and Robyn:
I write to memorialize the important points discussed during our September 26th meet and
confer.
Extending Discovery-Related Deadlines
After assessing comScore’s most recent document production (1.5 million pages in total by
our count, which we received on September 17th), we believe that an extension of the discovery
deadlines is necessary to give us adequate time to review and analyze the production. Thus, we
anticipate moving the Court to extend the Parties’ deadlines to file motions to compel and
supplement written discovery responses (currently set for October 7th and 11th, respectively) by
thirty (30) days. Likewise, and in anticipation of comScore supplementing its discovery responses,
as well as the possibility that Plaintiffs may propound additional requests after reviewing
comScore’s document production, we also intend on moving the Court for a ninety (90) day
extension to the deadline for completion of fact discovery, i.e., from December 20, 2013 to March
20, 2014.
We anticipate filing the motion to extend discovery deadlines no later than Wednesday,
October 2, 2013. Of course, we’d like to include your view on the proposed extensions, so please
let us know comScore’s position on extending the discovery deadlines as quickly as possible.
Roadmap to comScore’s August 30th Document Production
We asked that comScore provide Plaintiffs with a roadmap to its August 30th document
production (no different than the roadmap comScore provided for its production during the classdiscovery period). You stated that you believe comScore’s production complies with Rule 34, but
that you would consider the request and discuss it with your client. Please do so and let us know
comScore’s position.
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Dunstan, et al. v. comScore, Inc.
September 30, 2013
Page 2 of 6

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comScore’s Responses to Plaintiffs’ Written Discovery Requests
Metadata associated with comScore’s August 30th Document Production: We
discussed comScore’s failure to provide certain metadata associated with its document production.
Plaintiff Dunstan’s Requests specified that files should be produced with “associated Metadata,”
including information about the “characteristics” and “origins” of files. We therefore ask that
comScore list the directory paths for each file produced. See Autotech Techs. LP v.
Automationdirect.com, Inc., 248 F.R.D. 556, 559–60 (N.D. Ill. 2008) (noting that courts will look
to a party’s discovery requests to determine what metadata the opposing party should produce and
that “[s]ome examples of metadata for electronic documents include: a file’s name, a file’s location
(e.g., directory structure or pathname) . . . .”).
Please let us know if comScore is willing to supplement its production in accordance with
the above no later than October 3, 2013.1
Dunstan’s Document Request Nos. 19, 21, 22, and 26: We believe that all
communications and advertisements sought in these Requests are relevant to identifying
comScore’s intent (e.g., how comScore engaged with potential bundling partners and persuaded
them to bundle comScore’s tracking software with their own software products), but we accept that
the Requests, as written, are overbroad. Thus, we agreed to narrow the Requests to only cover
comScore’s communications with bundling partners about packaging OSSProxy with their
software and marketing materials aimed at signing-up new bundling partners. With this limitation,
please let us know if comScore is willing to supplement its production in response to these
Requests.
Dunstan’s Document Request Nos. 34 and 36: You explained that the Parties’ definitions
of “purge” are not in accord. You also said that you’d consider providing a more detailed
explanation of how comScore uses the word “purge,” and that comScore will search for responsive
documents relating to its retention practices for inadvertently or purposely collected personally
identifiable information.
We request that you provide us with such an explanation (or let us know that you are
unwilling to do so) no later than October 3, 2013, and with the results of the additional search no
later than October 11, 2013.
Dunstan’s Document Request No. 43: You explained why you believe that this Request is
overly broad, but clarified that comScore produced responsive documents anyway.
Dunstan’s Document Request Nos. 56, 57, 58, 59, 60, and 61: We believe that the
revenue and monies generated by comScore through its use of Class members’ information
1

Note that if the Court extends any of the relevant discovery deadlines (e.g., the October 7th deadline
for motions to compel or the October 11th deadline to supplement written discovery), then our requested
dates for supplementation will change accordingly. At this juncture, we need to know whether to include
several of the issues addressed herein with any discovery motion we file with the Court.
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Dunstan, et al. v. comScore, Inc.
September 30, 2013
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(including any derivative forms of Class members’ information such as aggregated, de-linked, or
deidentified data) is relevant to the claims at issue and therefore discoverable. Not only are
comScore’s financials relevant to intent (e.g., what information collection and/or sharing policies
comScore undertook to maintain or increase revenue), they are also relevant to Plaintiffs’ damages
calculation under the SCA, because the Act provides that “[t]he court may assess as damages in a
civil action under this section the sum of the actual damages suffered by the plaintiff and any
profits made by the violator as a result of the violation.” 18 U.S.C. § 2707(c) (emphasis added).
Please let us know if comScore’s current position (i.e., that this information is not
discoverable) changes, and please do so no later than October 3, 2013.
Dunstan’s Document Request Nos. 62 and 63: Based on documents produced by
comScore, we believe that there are instances where comScore receives requests or orders from
companies not identified as “matching companies” for individual-level data (whether identifiable,
de-identified, or de-linked). You told us that comScore has produced all documents related to the
“matching companies” and that for non-matching companies, comScore objects to producing
documents on relevance grounds. However, Plaintiff’s Requests seeking requests or orders for
Class members’ personally identifiable information (including any derivative forms of Class
members’ data such as aggregated, de-linked, or deidentified data) are relevant because they seek
information necessary for Plaintiffs’ damages calculation (i.e., profits derived from the sale of
Class members’ information) and information necessary to determine comScore’s intent (i.e.,
whether comScore provides personally identifiable information to non-matching companies despite
its claims to the contrary).
Please let us know if comScore’s position changes on this as well, and please do so no later
than October 3, 2013.
Dunstan’s Document Request Nos. 64, 65, 66, 67, and 68: comScore objects to producing
documents related to the Trees for the Future program on relevance grounds because the program
is supposedly not referenced in any terms presented to Class members. However, comScore
previously produced a number of bundling partner downloading statements that explicitly and
prominently reference the Trees for the Future program. (See Exhibit 1 to this letter.) Likewise, the
Trees for the Future program is currently referenced in the paragraphs preceding
RelevantKnowledge’s “PRIVACY POLICY, USER LICENSE AGREEMENT, AND PATENT
NOTICE.” (See http://www.relevantknowledge.com/RKPrivacy.aspx (last accessed September 30,
2013).)
Accordingly, comScore should supplement its responses to these Requests by producing
documents and communications relevant to the Trees for the Future program. Please let us know if
you are unwilling to do so by no later than October 3, 2013.
Dunstan’s Document Request Nos. 74, 75, 76, and 77: comScore maintains its objection
to the Requests’ use of the word “complaint” because no “complaint” (if any exists) would be
relevant to Plaintiffs’ claims. We disagree. Complaints may show, for example, that comScore was
put on notice of specific problems regarding the installation or operation of OSSProxy. Such
complaints could be relevant to comScore’s intent (e.g., if comScore’s responses to complaints are
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Dunstan, et al. v. comScore, Inc.
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nonexistent or unsatisfactory, such responses may indicate willful conduct on the part of comScore
so as to gain access to Class members’ computers). You stated that you would take our position
under advisement. As such, please let us know whether comScore will withdraw its objection and
supplement its production no later than October 3, 2013.
comScore also objected to Plaintiff’s Requests for “complaints” on the grounds that they
are too broad and burdensome, and suggested that responsive “complaints” (should they exist) may
be intertwined with non-relevant complaints (such as panelists upset over misapplied rewards). We
suggested that comScore attempt to identify relevant complaints by searching through any publicfacing email addresses and by searching for communications from organizations that are
unsatisfied with comScore’s software (e.g., universities unhappy with comScore’s software having
been installed on student, faculty, or staff computers). You agreed to have comScore conduct those
searches. Accordingly, please provide us with the search results by October 11, 2013.
Dunstan’s Document Request Nos. 81 and 82: We offered to limit these Requests to
documents, communications, or correspondence that would identify the listed companies’ (other
than Nedstat, Inc.) employment figures, infrastructure, and data collection procedures and policies.
You stated comScore’s position is that responsive documents may have already been produced in
response to Request No. 83, but if not, comScore would conduct a further search. Please provide us
with any such search results no later than October 11, 2013.
Dunstan’s Document Request No. 86: We’re puzzled by your assertion that no search
terms or queries were used to assemble the most recently produced documents (we don’t see how
else the documents could feasibly have been selected). It seems that we may have been speaking
past each other. This Request seeks the search terms/queries used to locate documents responsive
to our requests. Please provide a list of those terms, or explain whether you stand on your
objections. In addition, if comScore uses keyword searches or queries while gathering documents
to supplement its production, please produce those search terms as well, and do so by October 11,
2013.
Dunstan’s Document Request No. 88: Plaintiffs only seek insurance policies that would
be relevant to this lawsuit (i.e. policies that would completely or partially cover any possible
judgment entered against comScore). You indicated that comScore understood our position, but
you didn’t clarify whether comScore would produce relevant insurance policies. Please let us know
one way or the other no later than October 3, 2013.
Dunstan’s Interrogatory Nos. 10 and 11: comScore answered “None” because Plaintiffs’
definition of personally identifiable information did not include “aggregated” and/or “anonymized”
data. You informed us that if Plaintiffs were to amend their definition of personally identifiable
information, comScore would object on relevance grounds as it had to Request Nos. 56, 57, 58, 59,
60, and 61. However, and as stated above, our position is that the money or benefits comScore
received for Class members’ information (or information derived therefrom, including
“aggregated” or “anonymized” data) is directly relevant to the issue of damages. See 18 U.S.C. §
2707(c). Therefore, please let us know whether comScore will supplement its responses no later
than October 3, 2013.
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Dunstan’s Interrogatory No. 12: As stated in their complaint, Plaintiffs are seeking
punitive damages in this case. comScore’s net worth is relevant to a punitive damages calculation
and, thus, responsive documents are discoverable. See Lanigan v. Babusch, No. 11-cv-3266, 2011
WL 5118301, at *4 (N.D. Ill. Oct. 27, 2011) (“A party’s net worth is discoverable where punitive
damages are at issue.”). Please let us know if comScore will supplement its response no later than
October 3, 2013.
Harris’s Interrogatory No. 2: comScore maintains that the identities of bundling partners
are not relevant to Plaintiffs’ claims. However, you indicated during the call that because comScore
already produced a chart listing some bundling partners (see Exhibit 2 to this letter), comScore may
rethink its position. In the event that comScore stands on its objections, however, we are firm in
our position that the identities of and details surrounding the identities of bundling partners are
relevant and discoverable. Such information will, for example, reveal the repute of those
companies that comScore partners with in order to distribute its tracking software. And if
comScore intentionally engaged with disreputable software distributors, such information could be
relevant to comScore’s intent (e.g., if comScore knowingly partnered with certain unscrupulous
bundling partners, it could point to comScore as having willfully installed its tracking software on
Class members’ computers without first attempting to obtain consent).
Please let us know whether comScore will withdraw its objections and answer the
Interrogatory no later than October 3, 2013.
Harris’s Interrogatory Nos. 3 and 4: comScore agreed to supplement its answer to
Interrogatory No. 4 by identifying which documents are responsive to it (and by reference,
Interrogatory No. 3). Please do so by October 11, 2013.
Plaintiffs’ Responses to comScore’s Written Discovery Requests
comScore’s Request No. 3: comScore maintains that Plaintiff Dunstan must produce his
entire hard drive for inspection. Our position remains that we’ll consider requests to produce
specific relevant, non-privileged information from the hard drive. The Parties agreed that given
repeated meet and confers, this issue may need to be presented to the Court for resolution.
comScore’s Interrogatory Nos. 13, 14, 15, 16, 17, 20, 21, and 22: Plaintiffs will consider
supplementing Plaintiffs’ answers to 13 and 14. However, for the remaining Interrogatories,
Plaintiffs anticipate that review of comScore’s recent document production will reveal the facts
necessary to answer comScore’s contention interrogatories. Thus, we will supplement our answers
(if necessary) accordingly.
comScore’s Interrogatory No. 18: Having heard our position on comScore’s definition of
“filter,” you suggested that comScore will rethink its position on Plaintiffs’ answer to this
Interrogatory.
comScore’s Requests for Admission Nos. 1 and 2: Plaintiffs’ answers to these Requests
for Admission are entirely consistent with Plaintiffs’ long-standing position that comScore is not a
party to the Downloading Statement or the Privacy Policies and User License Agreement. We
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Dunstan, et al. v. comScore, Inc.
September 30, 2013
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explained that these Requests for Admission as written lend themselves to denials, but that
Plaintiffs will respond in good faith to additional requests, should comScore choose to issue any.
Thank you for the productive meet and confer, and we look forward to hearing from you.
Best regards,
EDELSON LLC

Rafey S. Balabanian

cc:

Mr. Jay Edelson
Mr. Ari J. Scharg
Mr. Chandler R. Givens
Mr. Benjamin S. Thomassen
Mr. Stephen S. Swedlow

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EXHIBIT 1

Exhibit A

678Soft

AccmeWare

Acez

A1 Software

AquariusSoft
-Test Bundle in QA

* As of 10/3/2011: In QA and will roll out once it is approved

ASoftwarePlus

Beneton Software

Chit Chat

ChrisPC

Cliprex

Data & Files

Digital Liquid

DMS

EIPC

EtExchange

Falco Software

FileSubmit

FreakyBurn

Freeway

GFSoftware

* Screenshot taken from last QA submission

Goztun

GuitarFX
- Waiting for test bundle

* As of 10/3/2011: In QA and will roll out once it is approved

Guppy Games

GustoSoft

KC Software

King Sedco

Leawo

Linkular

* Screenshot taken from last QA submission

MediaProSoft

MP4 Player

NeoSoft

Network467

NPS Software

OurScreenSavers

Plato

RisingResearch

Uberdownloads

UltraWave Guitar

Whitepaw

WiseCleaner

WordOfMouth
- Test Bundle in QA

* As of 10/3/2011: In QA and will roll out once it is approved

Ytmp3Pro

ZXT

PremierOpinion

Cyzeal

Morpheus

Traffix

EXHIBIT 2