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 9
[FILED PARTIALLY
UNDER SEAL]

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September 18, 2013
VIA ELECTRONIC MAIL
Andrew H. Schapiro
QUINN EMANUEL URQUHART & SULLIVAN, LLP
500 West Madison Street, Suite 2450
Chicago, Illinois 60661
[e-mail]
Re:

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

Dear Andy:
I write to address certain concerns we have with comScore’s responses to Plaintiffs’
discovery requests, which were served on August 30, 2013. As outlined below, we’d like to
schedule a meet-and-confer to discuss these issues.
comScore’s Responses to Plaintiff Dunstan’s First Set of Requests for Production
To start, comScore incorporates a set of “General Objections” into each of its responses to
Dunstan’s Document Requests, which is unhelpful at best, and improper at worst. See Fudali v.
Napolitano, 283 F.R.D. 400, 403 (N.D. Ill. 2012) (“the uninformative litany that the requests [are]
overbroad, [and that] production of documents is unduly burdensome…[or that] that the evidence
is ‘neither relevant nor reasonably calculated to lead to the discovery of admissible evidence,’ is an
insufficient basis to refuse to comply with discovery. They are tantamount to not making any
objection at all.”); see also In re Aircash Disaster, 172 F.R.D. 295 (N.D. Ill. 1997) (discussing the
impropriety of non-specific, boilerplate objections). These stock objections are incorporated by
reference into each of comScore’s responses, and are also repeated throughout the responses
without any indication of their bases.1 As we’ve explained before, general objections are improper
and here, they have made it impossible to discern what comScore is objecting to.
We therefore ask that comScore withdraw its “General Objections” and, to the extent it
believes that some or all of Plaintiff’s Requests are objectionable, assert them in its individual
responses to the Requests. To the extent comScore refuses to do so, please be prepared to explain
the bases for asserting these objections as they relate to each and every one of Plaintiff’s Requests
during our meet and confer. The following sets forth in detail the issues we have with comScore’s
responses to Plaintiff’s Requests.

1

For example, comScore states that nearly every Request is “vague and ambiguous; overly
broad in that it seeks information unrelated to Plaintiffs’ claims, unduly burdensome, harassing and
oppressive; seeks information that is not relevant or reasonably calculated to lead to the discovery
of admissible evidence; and seeks information already produced by comScore.”
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Document Request Nos. 2, 47, and 80
Document Request Nos. 2, 47, and 80 seek information relating to comScore’s decision to
collect the Personal Information of its Panelists, as well as the design, development, and operation
of the software that comScore used to gather this information. In response, comScore states that the
Requests are “not relevant,” and that the terms “decision” and “begin” are vague and ambiguous.
These objections are not well-taken. The definitions section of Plaintiff’s Requests direct comScore
to construe terms like “decision” and “begin” in accordance with their plain and ordinary meaning.
Thus, we see no ambiguity in these terms. As to comScore’s relevance objection, Request No. 2 is
confined to information related to the development and operation of the software that is at the heart
of this case, and Request Nos. 47 and 80 enumerate specific categories of data that Plaintiffs allege
were collected from Panelists without their informed consent. The allegations in the operative
complaint are inseparable from the information sought in these Requests, as this case turns, in part,
on whether or not comScore intentionally designed and developed OSSProxy to collect precisely
this type of data from Panelists.
comScore also objects to each of these Requests as overly burdensome, but this is not a
valid objection either. We seriously doubt that the production of such information would pose a
significant burden to comScore. Assuming that a large data analytics company such as comScore
does not make such decisions on an ad hoc basis, we believe that there are records of these
business decisions. The design and implementation of these aspects of OSSProxy should be well
documented in comScore’s internal memoranda and project-management materials, and no amount
of burden would outweigh their probative value.
comScore also objects to Request Nos. 47 and 80 on the grounds that “comScore has not
and does not collect [such information] from its Panelists,”
It is also non-responsive. In requesting this
information, Plaintiff seeks an understanding of comScore’s collection methods—not a general
denial that such collection occurs.
Notwithstanding the objections, comScore claims that it has already produced all
responsive, non-privileged documents. However, based on our understanding of how comScore’s
software is developed and distributed, we believe that there are responsive documents in
comScore’s control that have yet to be produced.
In Request Nos. 47 and 80, Plaintiff simply seeks
information about comScore’s decision to develop this capability, as well as the capability to
obtain the other categories of information that are the subject of these Requests.
Document Request Nos. 19-22
These Requests seek information about the process by which comScore distributes its
software through third parties and how Bundling Partners learn of and join comScore’s bundling
program.
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comScore responds to these Requests by objecting to the words
“recruit,” “promotion,” and “advertising” on grounds of vagueness and ambiguity. These
objections are baseless and do not absolve comScore of its duty to produce responsive documents.
Neither does comScore’s objection that such information is irrelevant, since the relationship
between comScore and its Bundling Partners undeniably relates to the manner in which the
software was installed onto Panelists’ computers.
Unless comScore keeps no record of these communications with its Bundling Partners, or never
reduced them to writing—which strikes Plaintiffs as incredibly hard to believe—then responsive
documents should exist and must be produced.
Document Request Nos. 11–12, 15, 17, 30–31, 33, 35–37, 41, and 85
These Document Requests seek information related to comScore’s process of purging,
fuzzifying, and collecting the Class’s and Subclass’s Personal Information. For example, Request
Nos. 15 and 30 seek documents that relate to “the manner in which [comScore] designed [its]
Panelist Software” to “Collect Personal Information,” and to “Filter Personal Information,”
respectively. In response, comScore objects that the requests are overly broad and irrelevant
because they “seek[] documents related to the development of the comScore software.” We fail to
understand how comScore can assert in good faith that the “development of comScore’s software”
is irrelevant. OSSProxy’s ability to collect the Personal Information of panelists is precisely what is
at issue in this case, and it is more than reasonable to assume that documents related to the
development of the software will apprise Plaintiffs of the way the software collects or avoids this
information. Nor do we understand how these Requests could be construed as overbroad. They
seek documents related specifically to the collection and filtering of Personal Information, which is
at the heart of the issues in this case.
Further, comScore objects that Request Nos. 15 and 30 are “vague and ambiguous,”
without specifying the word(s) that are unclear, and despite the fact that every word except
“manner” and “designed” is defined by Plaintiff Dunstan in his First Set of Document Requests.
For those not defined, we ask, again in line with the instructions provided in the Requests, that
comScore interpret these words in accordance with their plain and ordinary meaning.
comScore nevertheless maintains that it has already produced all documents responsive to
these Requests. Based on what we have learned through class discovery, we strongly doubt that all
responsive documents have been produced.
Such information would also
be responsive to Request No. 37 (among others), which seeks documentation relating to “current
and past protocols, processes, and/or procedures for identifying, processing, and/or documenting
occurrences where [comScore] Collected Personal Information…that was not Filtered.”

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Document Request Nos. 28 and 29
Document Request Nos. 28 and 29 ask comScore to produce information that identifies
individuals who had Panelist Software running on their computers. comScore responds that the
Requests are “unclear,” and that it “therefore…will not produce documents responsive to this
request.” Such a generalized response, without any indication as to how the Request is unclear, is
improper. Though we don’t believe the Requests need clarification, to move the process along, we
are seeking records of, and communications regarding, all current and former Panelists’ identities,
along with their contact information.
At present we are limited by our understanding of comScore’s database schema, but
would like to discuss this Request further during the meet and confer.
Document Request No. 43
Document Request No. 43 seeks communications relating to the “Terms of Service, User
License Agreements, or other agreements” that comScore believes govern its relationship with the
Panelists. In response, comScore objects that the Request is “vague and ambiguous” with respect to
the term “other agreements,” and “overly broad in that it purports to include communications
regarding agreements or portions of agreements not relevant to Plaintiffs’ claims.” We fail to
understand how comScore can assert that communications relating to the Terms of Service or User
License Agreements, which are also central to the claims, are irrelevant. The scope of Panelists’
supposed consent is still at issue in this case (see Dkt. 186 at 11), and communications regarding
such agreements, how they were drafted, the word choice, and the categories of information they
were intended to cover, are directly relevant to the issue of consent and therefore discoverable. Nor
do we understand comScore’s objection that the Request is “overbroad,” since it asks only for
those agreements that “[comScore] contend[s] govern[] the relationship between [comScore] and
Panelists,” which relate specifically to comScore’s defenses.
comScore also objects to this Request on the grounds that “it seeks privileged information.”
comScore, however, cannot claim that this information is privileged simply to avoid its discovery
obligations. If any of these communications are privileged, comScore must provide, per Judge
Kim’s Case Management Procedures, a privilege log enumerating them as such, rather than simply
claiming the privilege without any further information.2
Document Request Nos. 74–77
Document Request Nos. 74–77 seek documentation of complaints that comScore received
about its software. comScore responds with its standard objection language, but adds that the word
2

Again, this is true of the vast majority of comScore’s responses, which contain generalized
objections claiming privilege.
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“complaints” is vague and ambiguous. This is an untenable position in our view, considering that
comScore provides a “Complaint Procedure” on its “Code of Business Conduct and Ethics”
webpage. A simple search of these “complaints” would likely produce documents that are
responsive to Document Requests Nos. 74–77. To the extent comScore is withholding relevant
information on the basis of technical objections, or because of some perceived ambiguity in
ordinary words like “complaint,” we ask that it proceed in good faith and produce responsive
documentation.
comScore also objects on the grounds that documents related to complaints about the
Panelist Software are irrelevant to Plaintiffs’ claims. We disagree. As you know, Plaintiffs allege
that comScore “intentionally intercepted and endeavored to intercept Plaintiffs’ and [the] Class
Members’ electronic communications.” (Dkt. 169 at ¶ 95.) Whether or not comScore intentionally
designed its software to intercept and collect the Personal Information of Panelists, or whether it
was aware of such interception and collection, will likely be evinced through these complaints and
comScore’s responses to them.
Finally, we remind you that the Court’s Bifurcation Order stayed requests substantially
similar to these “pending resolution of the class certification issues.” (See Dkt. No. 88 at 12.) Those
class certification issues have been resolved, and we believe that comScore is obligated to produce
responsive information given the stage of the litigation.3
Document Request Nos. 64–68
comScore also refuses to produce any documents or correspondence sought in Request Nos.
64–68 which seek information relating to comScore’s arrangement with Trees for the Future, NPO.
Instead, comScore again provides a jumble of generic, unqualified objections to Dunstan’s
requests, stating that the terms “understanding,” “as a result of,” and “on behalf of” are vague, and
that the requests are overbroad and oppressive. For the same reasons explained in our discussion of
comScore’s vagueness objections above, there is no merit to these objections. We fail to see how
these responses are overbroad or harassing, as they seek specific information about comScore’s
relationship with Trees for the Future—a company that is directly involved with the distribution of
the Panelist Software.
The
nature of comScore’s relationship with Trees for the Future—assuming one exists—is also relevant
for the damages calculation in this case. If comScore’s relationship with Trees for the Future was
not as purported, and thus comScore’s actions in this regard were willful or knowing, Plaintiffs
may be entitled to additional damages.4 Moreover—and as explained in our discussion of Request
3

Similarly, comScore has failed to identify any complaints it received regarding the Panelist
Software as requested by Dunstan’s Interrogatory No. 13. For the same reasons, we believe that
comScore is obligated to answer this Interrogatory as well.
4

The same holds true for comScore’s response to Interrogatory No. 5 of Harris’s Second Set
of Interrogatories, which seeks similar information about comScore’s relationship with Trees for
the Future.
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Nos. 19–22 above—comScore’s method of promoting and advertising its software through third
parties is undoubtedly relevant and should be produced.
Document Request Nos. 69–73
Through Documents Request Nos. 69–73, Dunstan seeks the production of any documents
related to any contracts and communications between comScore and its amici curiae, or any
documents relating to the amicus brief filed in support of comScore’s appeal of the class
certification order. comScore objects on vagueness grounds and also because the Request is
supposedly not “related to Plaintiffs’ remaining claims.” The vagueness objection is improper
without an indication of how the Request is vague, and we disagree that this information is not
relevant to Plaintiffs’ remaining claims, considering that the amici curiae seem to have specialized
knowledge about comScore’s “cookie” technology that Plaintiffs don’t. (See Appellate Dkt. No. 4
at 2) (representing to the Seventh Circuit that this case “implicate[s] a foundational Internet
communication and commerce technology, (the so-called ‘cookie’)”.) Our understanding of
OSSProxy’s functionality is that it tracks Panelists’ behavior without the use of any cookies
generated by comScore. These Requests seek to resolve this incongruity by discovering the bases
of the amici curiae’s claims.
Document Request Nos. 81–82
Taking up these Requests in reverse, No. 82 seeks communications between “any of
[comScore’s] officers, directors, or Employees on the one hand, and representatives of the
following companies on the other hand: TMRG, Inc.; VoiceFive, Inc.; CreativeKnowledge, Inc;
Nedstat, Inc; and Knowledge Networks, Inc.” In response, comScore repeats its generalized
objections to this Request, this time adding that it is vague and ambiguous with respect to the terms
“on the one hand” and “on the other hand,” that it is overly broad, and that it is not relevant to
Plaintiffs’ remaining claims.
Ignoring the fact that a plain reading of this Request specifies what is being sought—
communications between comScore and its subsidiaries—this Request is directly relevant and
narrowly tailored to the issue of Panelists’ supposed consent. When OSSProxy is installed onto
Panelists’ computers, the displayed Privacy Statement and User License Agreements only refer to
these five companies and state that no third parties (presumably comScore included) have any
rights under those terms. However, while it’s Plaintiffs’ position that comScore is not a party to
any supposed contract with Panelists, we also believe these subsidiaries are nothing but shell
companies for comScore. Thus, assuming arguendo that Panelists consented to the collection of
their Personal Information at the hands of any of these companies, comScore’s relationship with
these entities is relevant to the scope of such consent.
comScore also objects on grounds of overbreadth, which is similarly unavailing. The
Request seeks communications only from the five companies that appear on the Privacy Statement
and User License Agreements displayed to the Panelists. comScore also contends that the Request
is “oppressive in that it seeks documents related to companies that do not collect information from
Panelists.” Since the Privacy Statements and User License Agreements indicate that these
companies do, in fact, collect Panelists’ information, the objection seems utterly meritless.
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Documents that are responsive to Request No. 81 should be produced for the same reasons.
Request No. 81 seeks all documents and ESI that relate to the five companies named above.
Because the scope of Panelists’ supposed consent is dictated by the Privacy Statement and User
License Agreements that involve these companies—and that conspicuously exclude comScore
itself—the requested information related to these companies should be produced.
Document Request No. 86
Document Request No. 86 seeks production of “any and all correspondence[,] uncompiled
source code, and object code” that was used to locate, produce, or generate responsive documents
to Plaintiffs’ Discovery Requests. comScore objects on the grounds that the Request is overly
broad and unduly burdensome, in addition to a litany of other non-specific objections. comScore
further asserts, however, that Request No. 86 seeks information “not in the custody or control of
comScore.”
Document Request No. 86 simply seeks to determine what search terms, queries, or other
source code was used to respond to these Requests. Because comScore responded to Plaintiffs’
Discovery Requests, the search terms, queries, or other source code should therefore be in
comScore’s custody or control. That such information may be in the “care, custody, or control of”
a third-party hired to answer these Requests does nothing to alleviate comScore’s burden to
preserve and produce such information. See, e.g., Dexia Credit Local v. Rogan, 231 F.R.D. 538,
542 (N.D. Ill. 2004) (“it is well-settled that a party need not have actual possession of the
documents to be deemed in control of them;” rather, the “test is whether the party has a legal right
to obtain them”; “practical” control is “sufficient to order production of corporate documents”).
Document Request No. 88
Document Request No. 88 asks for “[a]ny and all policies of liability insurance under which
You were named or covered during the Relevant Time Period.” comScore has yet to produce this
information, despite its obligation to do so in its initial disclosures. (See Dkt. 88 at 15–16)
(“comScore should have produced a copy of the relevant policies on December 7, 2011, pursuant
to Federal Rule of Civil Procedure 26(a)(1)(A)(iv).”) Instead, comScore again refuses to comply
with its discovery obligations, this time objecting on the grounds that the words “named” or
“covered” are ambiguous and vague. However, the Request plainly seeks disclosure of any
insurance policies that cover (arguably or otherwise) the claims alleged in this case. The plain
meaning of this Request should be evident.
Further, comScore’s assertion that such policies are “not relevant” is similarly misguided,
as the Court has already stated that this information should have been produced to Plaintiffs. (Dkt.
88 at 15–16.) We therefore request that comScore either produce this information or explain the
basis for its inability or unwillingness to do so.
In light of the above, we ask that comScore specify the particular bases for its objections,
conduct another search of its records and databases for responsive documents, and be prepared to
discuss these issues during a meet-and-confer to take place no later than September 30th.
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comScore’s Responses to Plaintiffs’ Interrogatories
comScore’s “General Objection” to Plaintiffs’ Interrogatories are similarly improper and
unhelpful. As with comScore’s objections to the Document Requests, it is difficult for us to discern
what comScore takes issue with, since it has not specified the particular bases for most of its
objections. As with its responses to the Document Requests, we ask that comScore withdraw its
“General Objections” and, to the extent it believes that some or all of Plaintiffs’ Interrogatories are
objectionable, assert them in its individual responses to the Interrogatories. To the extent comScore
refuses to do so, please be prepared to explain the bases for asserting these objections as they relate
to each and every one of Plaintiffs’ Interrogatories during our meet and confer.
Dunstan’s Interrogatory Nos. 10–12
These Interrogatories ask comScore to identify any top-line revenue generated and “any and
all monies or other benefits [comScore] received from sharing, selling, transmitting, and/or
disclosing the Class’s and Subclass’s Personal Information,” to which comScore responded
“[n]one.” It seems unreasonable to us that comScore receives no money or derives no benefit from
this data, and we see no other reason why it would be collected.5
Further, comScore states on its website
that “comScore’s services are used by more than 750 clients,” including AOL, Yahoo, BBC, and
others. Thus, we’d like to discuss comScore’s basis for stating that it generates no benefit from the
disclosure of Personal Information to third parties.
Similarly, comScore responds to Dunstan’s Interrogatory No. 12—which asks comScore
for its “total net worth”—with the generalized objection that the Interrogatory is “vague and
ambiguous, overly broad, [and] unduly burdensome.” Because comScore provides no basis for
asserting these objections, it is hard to see how they could be well-founded. However, to the extent
that there is genuine confusion about the meaning of this Interrogatory, we would be happy to clear
it up at the meet-and-confer.
Harris’s Second Set of Interrogatory Nos. 2–4
We find numerous examples of comScore’s responses to Harris’s Interrogatories similarly
lacking. For example, we are skeptical of comScore’s objection to Interrogatory No. 2, which seeks
the identity and details about comScore’s Bundling Partners. Though comScore objects on the
basis that providing such information would be, among other things, “unduly burdensome,”
As such, we don’t think it
unreasonable (and certainly not unduly burdensome) for comScore to identify and describe its
5

For the same reason, Plaintiffs ask that comScore look again for the documents requested in
Dunstan’s Document Request Nos. 56–63, which seek documents related to the monies
or benefits comScore received from selling, sharing, transmitting, or disclosing the Class’s and
Subclass’s Personal Information.
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relationship with these Bundling Partners to Plaintiffs. comScore has acknowledged that it
“compensates its third-party partners that offer the comScore software during the installation
process...” (Dkt. 180 at ¶ 12.)
In response to Interrogatory No. 4, comScore states that it “has or will produce” documents
that are responsive “pursuant to Federal Rule of Civil Procedure 33(d).” However, Rule 33 requires
that comScore “provide sufficient detail to permit [Plaintiffs] to identify the records from which the
answer may be ascertained,” which—assuming comScore did already produce responsive
documents—it has failed to do. See Wilson v. Sundstrand Corp., 99 C 6944, 2003 WL 21961359,
at *4 (N.D. Ill. Aug. 18, 2003). Please indicate which previously produced documents are
responsive to this Interrogatory.
*

*

*

Our evaluation of comScore’s discovery responses continues, and we may raise additional
concerns under separate cover in the future.
At your earliest convenience, please let us know when you are available next week to meet
and confer on these issues and we’ll set up a conference call. 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
Ms. Robyn M. Bowland
Mr. Paul F. Stack

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