Dunstan et al v. comScore, Inc.

Filing 287

RESPONSE by comScore, Inc.in Opposition to MOTION by Plaintiffs Jeff Dunstan, Mike Harris for protective order Plaintiffs Motion to Exclude Disputed Data 268 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bowland, Robyn)

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
Plaintiff,

CASE NO. 1:11-cv-5807
Judge Holderman
Magistrate Judge Kim

v.
COMSCORE, INC., a Delaware corporation
Defendant.

COMSCORE'S OPPOSITION TO PLAINTIFFS’
MOTION TO EXCLUDE DISPUTED DATA
Defendant comScore, Inc. ("comScore") respectfully submits this brief in opposition to
Plaintiffs’ Motion to Exclude Disputed Data (“the Motion”). (Dkt. No. 268.)
I.

INTRODUCTION
In order to have a full and fair opportunity to test Plaintiffs’ claims and defend against

them, comScore requires a full file list and list of internet browsing history from Plaintiff Jeff
Dustan’s imaged hard drive. This Court has already determined that information on Dunstan’s
hard drive is relevant to this case. However, Plaintiffs have refused to provide full file listings
and internet browser history information, claiming that is irrelevant and that any relevance is
outweighed by Dunstan’s privacy concerns. However, the information Plaintiffs seek to exclude
is necessary to properly understand (1) whether the problems Dunstan claims he had with his
computer were caused by comScore’s software, (2) whether Dunstan’s computer was functioning
as a “facility through which an electronic communication service [was] provided,” and (3) how
Dunstan’s computer was configured at the time he allegedly downloaded comScore’s software.

Because the information Plaintiffs seek to exclude (the “Disputed Data”) is relevant to these
issues, the Court should deny Plaintiffs’ Motion.
II.

LEGAL STANDARDS
Fed. R. Civ. P. 26(b)(1) allows parties to “obtain discovery regarding any nonprivileged

matter that is relevant to any party’s claim or defense—including the existence, description,
nature, custody, condition, and location of any documents or other tangible things . . . .” The
Court must limit the extent of discovery if it finds that “the burden or expense of the proposed
discovery outweighs its likely benefit, considering the needs of the case, the amount in
controversy, the parties’ resources, the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C)(iii).
III.

ARGUMENT
comScore provided three reasons why Dunstan’s computer is relevant to this case in its

Motion to Compel the production of Dunstan’s hard drive:


“comScore is entitled to test this allegation to determine if Dunstan’s alleged
problems with his computer were due to outside factors, such as computer
viruses or an outside overload on the system.”



“Thus, comScore is entitled to inspect Dunstan’s computer to determine
whether it was configured with special equipment or software to support
Plaintiffs’contention that it could perform as a ‘facility through which an
electronic communication service is provided.’”



“The configuration of Plaintiffs’ computers is also essential to their
allegations regarding whether comScore’s software collects information in a
way that exceeds the scope of the ULA.”

(Dkt. No. 226 at pp. 3 and 4.) The Court granted comScore’ motion to compel the production of
an image of Dunstan’s hard drive, and entered a Protective Order regarding the same. (Dkt. No.
240.) After receiving the data pulled by comScore’s forensic computer experts, Elysium Digital,
from Dunstan’s imaged hard drive in accordance with the Protective Order, Plaintiffs objected to

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providing complete file listings, internet browsing history, and a list (but not content) of emails.
The parties have, after a meet and confer process, agreed to limit the listing of emails to the
January 1, 2010 to September 1, 2010 timeframe. (Ex. A, Nov. 8, 2013 Email from C. Givens to
R. Bowland.)
Initially, comScore also proposed limiting the file listings and internet browsing history
to only those files and internet browsing sessions that occurred before and shortly after Dunstan
claims to have downloaded comScore’s software. (Ex. A, Nov. 6, 2013 Email from R. Bowland
to C. Givens.) However, after discussing this proposal with Elysium Digital, comScore realized
that files and internet browsing history after Dunstan downloaded comScore’s software were also
relevant to Plaintiffs’ claims in this case. (Ex. A, Nov. 8, 2013 Email from R. Bowland to C.
Givens.) Therefore, comScore insisted on receiving the entire file list and browsing history, but
Plaintiffs refused to provide this information and instead filed the Motion. (Id.)
A. The Disputed Data is Relevant to Plaintiffs’ Claims in this Lawsuit
As discussed in its previous Motion to Compel, comScore requires the full file listing and
Internet browsing history to test each one of these claims by Dunstan. First, it is obvious that
files added before Plaintiffs’ arbitrary time frame may still have been on Dunstan’s computer in
September 2010, and therefore be relevant. (Ex. B, Decl. of Elysium Digital at ¶ 7.) To the
extent any of those files were downloaded from an internet source, the internet browsing history
prior to Plaintiffs’ time frame would also be relevant. (Ex. B, Decl. of Elysium Digital at ¶¶ 8,
11.) These files are relevant to the set-up of Dunstan’s computer in September 2010, and
therefore relevant to Plaintiffs’ claims of computer problems and the configuration of Dunstan’s
computer in September 2010. The Court should order Plaintiffs’ to produce this information to
comScore.

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Additionally, the full file listing and Internet browsing history after September 2010 is
also relevant. In particular, files added after September 2010 may have changed or altered files
added before September 2010. For example, (Ex. B, Decl. of Elysium Digital at ¶ 9.).
Additionally, as the Court may know, there are commercially available software products which
allow the complete removal of all or certain files on a computer’s hard drive. (Ex. B, Decl. of
Elysium Digital at ¶ 10.) If Dunstan used one of these programs, and the Court grants Plaintiffs’
motion, comScore will have no way of knowing what the true configuration of Dunstan’s
computer was in September 2010. (Id.) The Court should also order Plaintiffs’ to produce this
information to comScore.
B. Jeff Dunstan’s Privacy Concerns Do Not Outweigh the Benefit of comScore
Receiving the Information It Needs to Defend this Lawsuit
Plaintiffs also argue that Dunstan’s privacy concerns outweigh the value of the Disputed
Data. However, as discussed above, the Disputed Data is necessary for comScore’s investigation
of Plaintiffs’ claims regarding problems with Dunstan’s computer, the configuration of
Dunstan’s computer with respect to electronic communications, and the configuration of
Dunstan’s computer related to Plaintiffs’ specific claims. comScore is unable to obtain the
information on Dunstan’s computer without receiving these files, and comScore is entitled to test
Plaintiffs’ claims in this respect. Moreover, Plaintiffs cannot make these claims in their case and
then hide behind vague claims of privacy in order to avoid discovery. Dunstan’s computer, as
discussed in comScore’s previous Motion to Compel, goes to the heart of Plaintiffs’ claims.
Finally, Dunstan’s privacy concerns are adequately addressed by the Court’s Protective Order in
this case. To the extent Plaintiffs choose to designate any of the information from Dunstan’s
hard drive, comScore and its experts will be obligated to protect the information from disclosure.

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IV.

CONCLUSION
For the foregoing reasons, comScore respectfully requests that the Court deny Plaintiffs'

Motion to Exclude Disputed Data.

DATED: November 25, 2013

QUINN EMANUEL URQUHART &
SULLIVAN, LLP
_/s/ Andrew H. Schapiro__
__
Andrew H. Schapiro
[e-mail]
Stephen Swedlow
[e-mail]
Robyn Bowland
[e-mail]
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
500 West Madison Street, Suite 2450
Chicago, Illinois 60661
Telephone: [phone]
Facsimile: [phone]
Paul F. Stack
[e-mail]
Stack & O'Connor Chartered
140 South Dearborn Street
Suite 411
Chicago, IL 60603
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant comScore, Inc.

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CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of COMSCORE'S
OPPOSITION TO PLAINTIFFS’ MOTION TO EXCLUDE DISPUTED DATA has been
caused to be served on November 25, 2013 to all counsel of record via the Court's ECF filing
system and via electronic mail.
_/s/ Robyn M. Bowland

Robyn Bowland

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