Dunstan et al v. comScore, Inc.

Filing 294

DECLARATION of Rafey S. Balabanian regarding motion to compel 293 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Thomassen, Benjamin)

EXHIBIT E

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November 27, 2013
VIA ELECTRONIC MAIL
Robyn M. Bowland
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 Robyn:
I write to follow up on several outstanding issues and flag the need to schedule a meet and
confer for next week. Given our recent meeting with Magistrate Judge Kim, we think it makes the
most sense to schedule a single call where we can confer quickly for the purposes of our
Wednesday, December 4th call with the Court and also firm up dates and details for the depositions
noted below. Please let us know your team’s availability for a call (preferably on December 2nd or
3rd, even recognizing that Mr. Weaver’s deposition is scheduled to go forward on the 3rd) as soon
as possible.
Deposition of Magid Abraham. First, in response to your November 18th letter, we intend
to move forward with the deposition of Mr. Abraham and need to discuss whether Plaintiffs will
have to move the Court to compel his appearance, whether comScore will move the Court for a
protective order, or whether comScore will—after meeting and conferring—agree to produce him.
On our understanding, Mr. Abraham was a central player in comScore’s decisions to, inter alia, (i)
obfuscate (“fuzzify”) and (ii) target and collect certain categories of Panelist data. These early and
ongoing decisions are key pieces to Plaintiffs’ case, especially for the purposes of establishing
comScore’s intent under the SCA and ECPA. And Mr. Abraham is probably the best person at
comScore to speak of these decisions, including their implementation and changes over time—
even if other individuals are more able to speak to the company’s current day-to-day operations as
they relate to its data collection practices. For all these reasons, we don’t think his status as an
executive affords him any special protection against sitting for a deposition in this matter, or
outweighs Plaintiffs’ need to conduct discovery to prove their statutory claims.
In any event, we note that ultimately it is comScore, not Plaintiffs, that carries the burden of
showing why Mr. Abraham deserves special protection from the Court exempting him from sitting
for deposition. See Meharg v. I-Flow Corp., 108-CV-0184-DFH-TAB, 2009 WL 1404603, at *1
(S.D. Ind. May 15, 2009) (noting that although “high level executives are vulnerable to numerous,
repetitive, harassing, and abusive depositions, and therefore need some measure of protection from
the courts … the burden remains on [defendant] to demonstrate that a protective order is
warranted.”); cf. New Medium Technologies LLC v. Barco N.V., 242 F.R.D. 460, 469 (N.D. Ill.
2007). Simply stating that comScore believes Plaintiffs seek Mr. Abraham’s deposition for
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Edelson
 LLC

Dunstan, et al. v. comScore, Inc.
November 27, 2013
Page 2 of 3

harassment purposes (which is entirely untrue but appears to be the sole basis asserted in your letter
for not producing him) is hardly sufficient. We’re happy to discuss our position with you further
next week, but ultimately need to know how comScore intends to proceed so we can take
appropriate action.
Re-Noticed Deposition of John O’Toole. Second, based on comScore’s most recent
document production (referenced by your letter dated November 22, 2013), we intend to re-notice
the deposition of Mr. O’Toole. Unfortunately, our understanding is that Mr. O’Toole is the
individual most capable of answering questions we have concerning certain documents that
comScore produced on November 22, 2013—following Mr. O’Toole’s deposition. As such, we’ll
ask that you be ready to discuss dates that Mr. O’Toole can be available for a second deposition.
To be clear, we’re not seeking to entirely re-open Mr. O’Toole deposition—rather, we’d be seeking
testimony regarding the latest iteration of comScore’s on-going document production.
Third-Party Depositions. Third, we’re prepared to disseminate notices for two third-party
depositions in this matter—specifically for (i) Josh Fox of Media Cell, Inc and (ii) John Burbank of
the Nielson Company. As with the other third-party discovery sought in this case, we’ll provide
you with copies of the deposition notices once they are sent out. But given our present dual focus
on settlement and wrapping up discovery issues in this matter, we’re willing to discuss both
depositions with you next week before they are served (e.g., including whether it makes sense to
notice both for the final week of the discovery period, following our anticipated second in-person
meeting with Magistrate Judge Kim on December 15th or 16th).
Deposition of comScore’s Rule 30(b)(6) designee. Fourth, pursuant to the Rule 30(b)(6)
deposition notice sent to you on November 13, 2013, and our follow up communications on
November 22nd—where you indicated you would “likely propose a . . . date for [comScore’s]
30(b)(6) deposition,” and we agreed to reserve December 13th for the deposition of Josh Chasin—
we’d like to discuss potential dates for comScore’s Rule 30(b)(6) deposition. Please let us know
what dates work best for comScore, whether comScore will produce one or more individuals to
testify to the noticed topics, or whether comScore intends to take other action regarding the notice.
Deposition of Mike Harris. Fifth, we’re willing to produce Mr. Harris for a second
deposition on the late afternoon / evening of December 9th, 10th, or 17th. Following Mr. Dunstan’s
deposition, we considered whether to seek a protective order from the Court concerning
comScore’s supposed need to re-depose Mr. Harris at all, considering that Mr. Dunstan’s
deposition lasted for less than an hour, inclusive of all instructions, back-and-forths between the
attorneys, and breaks, coupled with the fact that it seemed to cover the same material as his first
deposition. Nevertheless, at this point, we are willing to produce Mr. Harris if comScore is willing
to be flexible in terms of timing (i.e., by agreeing to take Mr. Harris’s deposition later in the day, as
we previously suggested to you). Because we presume that comScore will seek information similar
to what it sought from Mr. Dunstan—i.e., concerning Mr. Harris’s use of his computer during the
time he had OSSProxy installed on it—we’d expect that Mr. Harris’s deposition will be of an even
shorter duration. To be perfectly clear, we are not conceding that a second deposition of Mr. Harris
is proper, but if the second deposition of Mr. Dunstan serves as any guide, we are willing to
cooperate so as to avoid any further disruptions requiring Court intervention. Alternatively, we’d
also likely be willing to answer any questions you have about Mr. Harris’s computer usage through
Illinois
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Edelson
 LLC

Dunstan, et al. v. comScore, Inc.
November 27, 2013
Page 3 of 3

a written statement (e.g., whether he had particular programs installed on his computer, visited
specific websites or types of websites, etc.)—and believe that doing so might save everyone some
time and expense.
Finally, and separate from any follow up points for next week’s meet and confer, this letter
confirms that we have segregated the documents Bates labeled CS0016932 and CS0089875 per
your November 20, 2013 letter. As before, we’re not able to delete the actual files from the hard
drive provided to us, but we can confirm they are sequestered and expect you to follow up your
request with an updated privilege log.
Please let us know a convenient time on either December 2nd or 3rd for a telephonic meet
and confer. As mentioned, we’re happy to conduct the call at the same time as our settlement
conference follow-up, but we understand if you’d like to keep the matters separate.
Best regards,
EDELSON LLC

Rafey S. Balabanian
cc:

Mr. Jay Edelson
Mr. Benjamin S. Thomassen
Mr. Andy Shapiro
Mr. Stephen S. Swedlow

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