Dunstan et al v. comScore, Inc.

Filing 268

MOTION by Plaintiffs Jeff Dunstan, Mike Harris for protective order Plaintiffs Motion to Exclude Disputed Data (Thomassen, Benjamin)

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.
PLAINTIFFS’ MOTION TO EXCLUDE DISPUTED DATA
Pursuant to the Protective Order Governing Production of Plaintiff Jeff Dunstan’s Hard
Drive entered by this Court on October 23, 2013, (Dkt. 240) (the “Protective Order”), Plaintiffs
Mike Harris and Jeff Dunstan (“Plaintiffs”), by and through their undersigned counsel,
respectfully request that certain data be excluded from production to Defendant comScore, Inc.
(“comScore”). Specifically, Plaintiffs seek to exclude from production the entire listing of files
and Internet browsing history from Jeff Dunstan’s (“Dunstan”) imaged hard drive outside the
time period between January 1, 2010 and September 30, 2010 (the “2010 Time Period”)1 because
such data is irrelevant to the claims asserted in this case, and the potential privacy concerns for
Dunstan vastly outweigh any possible benefit that comScore could derive from the information.
In further support of this motion, Plaintiffs state as follows:

1

As explained further infra, on November 6, 2013, Plaintiffs suggested this timeframe to
ensure that comScore obtained files from Dunstan’s hard drive leading up to (8 months
preceding) and immediately after OSSProxy’s installation (September 25, 2010). Plaintiffs
believe in good-faith that this period allows comScore to meaningfully evaluate the condition of
Dunstan’s computer. (Declaration of Chandler Givens (“Givens Decl.”), a copy of which was
filed contemporaneously with this motion, at ¶ 8.)
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1.

The Protective Order required comScore to designate an expert to perform a

search and examination of an imaged copy of Mr. Dunstan’s hard drive, and then retrieve certain
data from it. (Protective Order at ¶ 3–4.) The expert then had to provide a copy of that data (the
“Retrieved Data”) to Plaintiffs’ counsel, without comScore or its counsel seeing it. (Id. at ¶ 4–5.)
After reviewing the Retrieved Data, the Parties were required to meet and confer to attempt to
resolve any potential objections that Plaintiffs’ counsel had about producing the Retrieved Data.
(Id. at 6.) In the event that the Parties couldn’t resolve such issues, the Protective Order provided
that Plaintiffs could file a motion to exclude information in dispute. (Id.)
2.

comScore designated Michael Perry (“Mr. Perry”) of Elysium Digital, LLC to

search and retrieve data from Dunstan’s hard drive pursuant to comScore’s requests. Mr. Perry
extracted files from the hard drive2 and provided a copy of the Retrieved Data to Plaintiffs’
counsel along with a summary report explaining what information had been collected. (Givens
Decl., ¶ 2.) The summary says that the Retrieved Data falls into seven categories: (1) File
Listings (which is divided into e-mail listings, (i.e., the subject line and to/from lines from all emails), and a list of every file on Dunstan’s hard drive), (2) Windows Registry, (3) Windows
Registry – Extracted Data, (4) Event Logs, (5) Event Logs – Extracted Data, (6) Internet History,
and (7) Log Files (which also includes a log file generated by anti-virus/malware software run by
Mr. Perry). (Perry Report at 2–4.) None of the categories of Retrieved Data were limited in any
respect (e.g., by date range).

2

The Protective Order required comScore’s expert to conduct a “search,” (Dkt. 240 at ¶ 3,)
and an “examination,” (id. at ¶ 5,) of Dunstan’s hard drive. However, it appears that Mr. Perry
didn’t “search” for anything, and instead extracted without limitation “all email files,” “all files,”
and “[a]ll Windows event logs.” (Initial Report of Michael Perry (“Perry Report”), at 2–3, a copy
of which is attached to the Givens Decl. as Exhibit A.)
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3.

The Parties met and conferred via telephone on November 5th. (Givens Decl., ¶

5.) During the call, Plaintiffs explained that Dunstan’s File Listings and Internet History outside
the 2010 Time Period weren’t relevant to this case because they had no bearing on his claims
whatsoever, given that comScore’s software was installed in late September 2010. (Id. at ¶ 6.) In
addition, while Plaintiffs agreed that, in principle, Windows Registry, Event Logs, and Log Files
might be relevant to develop an understanding of the operations of Dunstan’s computer, data
outside of the 2010 Time Period had no relevance because Dunstan only had comScore’s
software installed in late September 2010, and he removed the software using an anti-virus
program before the end of the month. (Id.)
4.

Notwithstanding their objections, and in an effort to be reasonable, Plaintiffs

agreed to provide data from five of the seven categories without any date restrictions: Windows
Registry, Windows Registry—Extracted Data, Event Logs, Event Logs—Extracted Data, and
Log Files (“Uncontested Data”). (Id. at ¶ 9.) And, per the Protective Order, Plaintiffs’ counsel
produced the Uncontested Data to comScore.3 (Id. at ¶ 12.)
5.

Regarding the e-mail listings (i.e., part of the larger category of File Listings), and

pursuant to Plaintiffs’ request, comScore agreed to have Mr. Perry re-examine the hard drive and
only extract e-mail listings from the 2010 Time Period, and then re-send that extracted data to
Plaintiffs’ counsel. (Id. at ¶ 11.) Plaintiffs have yet to receive the newly extracted e-mail listings,
and the Parties have agreed that once that revised data is produced, Plaintiffs’ counsel will
review them for potentially sensitive or privileged information and provide it to comScore (with
redactions and a privilege log, if necessary) within a few days following their receipt of it. (Id.)
3

Because several of these files also include information revealing Dunstan’s Internet
browsing history outside of the 2010 Time Period, those files are being withheld pending the
Court’s ruling on this Motion. (Id.)

3

6.

With respect to the File Listings and Internet History, Plaintiffs don’t object to

producing information from within the 2010 Time Period subject to a review for potentially
sensitive or privileged information. Thus, the only portion of the Retrieved Data in dispute is the
non-e-mail File Listings and Internet History outside of the 2010 Time Period (the “Disputed
Data”).
7.

The Disputed Data isn’t discoverable for at least two reasons. First, the files aren’t

relevant to this case, and comScore can’t explain why they would be. Second, the burden on
Dunstan’s privacy that would result from producing the Disputed Data vastly outweighs any
possible benefit of such discovery for comScore.
8.

In terms of relevance, and pursuant to Fed. R. Civ. P. 26(b)(1), parties may obtain

discovery only of information that is “relevant to any party’s claim or defense.” comScore stated
in its Motion to Compel (“comScore’s Motion”), that it needed to inspect Dunstan’s hard drive to
verify that he downloaded OSSProxy, whether OSSProxy (rather than something else on his
computer) caused the problems of which he complains, whether those problems occurred, and
whether anti-virus software was used to remove the software. (Dkt. 226 at 2.) But because
Dunstan’s downloading of OSSProxy, resulting computer problems, and use of the third-party
anti-virus software all occurred in and were limited to September 2010, the Disputed Data—all
of which falls outside the 2010 Time Period—is simply not relevant to his claims. (Givens Decl.,
¶ 6.)
9.

On November 8, 2013, comScore offered a new but wholly unpersuasive

explanation for wanting information outside the 2010 Time Period. In an e-mail, comScore
claimed that “post-September 2010 activity may have affected the pre-September 2010 files and
information collected, and therefore the post-September 2010 activity is necessary for

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understanding the functionality of the computer in September 2010.” (Nov. 8, 2013 e-mail from
Ms. Bowland, a true and accurate copy is attached to the Givens Decl. as Exhibit D.) Plaintiffs
believe that comScore’s position is untenable for at least two reasons:
a.

First, with respect to Dunstan’s Internet History files, comScore already

conceded that his “pre- and post-September 2010 activity” was not relevant to his claims.
As such, comScore previously indicated that it only needed Dunstan’s “browsing history
just before, during, and just after the removal of comScore’s software [because such
information] is relevant to Plaintiffs’ claims, in that some of them depend on a panelist’s
activities online.” (Exhibit D to the Givens Decl.) (emphasis added).) Plaintiffs agree—to
the extent any Disputed Data could possibly be relevant, it would be Internet activity
“just before, during, and just after” OSSProxy’s activation, i.e., the 2010 Time Period.
(Givens Decl., ¶ 8.) comScore’s new explanation does not account for its sudden change
in position, and Plaintiffs fail to understand how Dunstan’s other online activity (i.e., well
before and after his installation of OSSProxy) has any bearing on his claims. The reality
is that it has none and comScore certainly hasn’t explained the rationale.
b.

Second, comScore’s abstract statement that post September 2010 files may

have affected the computer’s pre September 2010 functionality is nonsensical. Even
assuming comScore can conjure up a justification for that statement (Plaintiffs fail to
even understand it), then it should be required to articulate a way to limit its request to
files relevant to showing the computer’s functionality—rather than plucking all of
Dunstan’s Internet browsing history from his hard drive. Furthermore, comScore has
repeatedly stated during meet and confers that its primary focus in assessing Dunstan’s
Internet history is to search for the existence of unidentified “viruses.” (Givens Decl., ¶

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7.) To that end, Mr. Perry already conducted a scan of Dunstan’s hard drive for viruses
and malware, and produced a report showing the same.5 Thus, and as before, Plaintiffs
fail to understand what else comScore could possibly glean from these files.
10.

In terms of Dunstan’s privacy, and even if the Disputed Data were relevant to any

present claims or defenses, under Fed. R. Civ. P. 26(b)(2)(C), this Court may limit the extent of
discovery where “the burden . . . of the proposed discovery outweighs its likely benefit . . . .” As
indicated in their Response in Opposition to comScore’s Motion to Compel, (Dkt. 233),
Plaintiffs have serious privacy concerns about permitting comScore to comb unrestricted through
Dunstan’s Internet browsing history spanning several years6—indeed, protecting Dunstan from
that kind of invasive access is exactly what this case is about. And this Court already recognized
the validity of those concerns. (October 16, 2013 Transcript, a copy of which is attached to the
Givens Decl. as Exhibit G, at 7:9–25 (“I think the more persuasive argument is that we need to
somehow protect the privacy interests of Mr. Dunstan. While he has made some claims about the
software damaging or harming his computer and harming his right to privacy, you know, it
doesn’t mean that the entire hard drive should be exposed to the world, so to speak.”).) As far as
Plaintiffs are concerned, there is no probative value to Dunstan’s Internet and/or e-mail history
outside of the 2010 Time Period, and any use comScore might extract from it (i.e., to harass or
embarrass him) is outweighed by the high costs to his privacy.

5

Mr. Perry’s anti-virus/malware search of Dunstan’s hard drive did turn up traces of
malware. (MBAM-log-2013-10-30 (09-25-44).txt, a true and accurate copy is attached as Exhibit
F to the Givens Decl.). Not surprisingly—at least from Plaintiffs’ perspective—one of the files
detected was the same photo editing software that Dunstan originally downloaded
(PhotoCutterSetup.exe) and was bundled with comScore’s software, which was reported as
harmful “Adware.” (Id.)
6

For example, Mr. Perry’s extraction yielded over 2,400 Internet search queries performed
by Mr. Dunstan. (Givens Decl., at ¶ 4.)
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11.

The remaining Disputed Data is comprised of a listing of every single file on

Plaintiffs’ hard drive. This data includes things like the names of documents, photos, images
downloaded from the Internet, and files that also reveal Dunstan’s Internet browsing history.
(Givens Decl., at ¶ 4.) For the same reasons listed above, Plaintiffs shouldn’t have to produce
such data from outside of the 2010 Time Period. It is not relevant to Dunstan’s claims and would
only invade his privacy only for the sake of doing so.
WHEREFORE, Plaintiffs respectfully request that this Court enter an order (1) excluding
from production to comScore file listings and Internet browsing history from Dunstan’s hard
drive dated outside the 2010 Time Period, and (2) for such further relief as this Court deems just
and proper.
Respectfully submitted,
MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of a class of
similarly situated individuals,
Dated: November 11, 2013

By: s/ Benjamin S. Thomassen
One of Plaintiffs’ Attorneys
Jay Edelson
Rafey S. Balabanian
Chandler R. Givens
Benjamin S. Thomassen
EDELSON LLC
350 North LaSalle, Suite 1300
Chicago, Illinois 60654
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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CERTIFICATE OF SERVICE
I, Benjamin S. Thomassen, an attorney, hereby certify that on November 11, 2013, I
served the above and foregoing Plaintiffs’ Motion to Exclude Disputed Data, 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 11th day of November 2013.
s/ Benjamin S. Thomassen

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