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 I
[FILED PARTIALLY
UNDER SEAL]

Edelson LLC
350 North LaSalle, Suite 1300, Chicago, IL 60654
t 312.589.6370 f 312.589.6378
www.edelson.com

December 17, 2013
VIA ELECTRONIC MAIL
Stephen Swedlow
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 Stephen:
I write to follow up on two discovery-related issues that require your immediate attention,
given this Friday’s (December 20, 2013) discovery deadline:
Requests for Production from Mr. Chasin’s Deposition. We made two oral requests for
the production of documents that were referenced over the course of Josh Chasin’s December 13,
2013 deposition. First, we requested reports reflecting the percentage of TAP-recruited panelists
who currently answer demographic questions at the time OSSProxy is installed.
Second, we requested copies of the audit reports evincing
the documentation of certain policies and procedures at comScore.

Both requests seek information that is obviously responsive to Plaintiffs’ propounded
document requests and has not been produced to date. Information concerning the TAP-recruitment
process and current demographic information collected from Panelists is covered by a number of
Plaintiff Dunstan’s First Set of Requests for the Production of Documents to Defendant comScore,
Inc. (“Dunstan’s Requests”), including Requests Nos. 2 and 3, which seek information regarding
the design, operation, modification and maintenance of comScore’s software, and Requests Nos. 12
and 15–17, which relate to comScore’s collection of personal information from Panelists. Though
comScore has produced documents that reflect past demo response rates, documents reflecting
current rates
) have not been
produced. Likewise,
(such as those covering the purging and fuzzification of PII and the management of
TAP partners) is responsive to Dunstan’s Requests Nos. 78 and 79, which seek information
regarding third-party privacy audits of comScore’s data collection practices. Locating and
producing these documents should be a relatively simple procedure,

Illinois / California / Colorado

Edelson LLC

Dunstan, et al. v. comScore, Inc.
December 17, 2013
Page 2 of 3

Accordingly, because the referenced documents (1) are responsive to Plaintiffs’ Document
Requests, (2) have not been produced to-date, and (3) formed the basis of Mr. Chasin’s testimony,
Plaintiffs ask that they be produced within 14 days (i.e., by December 31, 2013).
Deposition of Magid Abraham. Mr. Chasin’s recent testimony also confirmed that it’s
necessary for Plaintiffs to move forward with the noticed deposition of Mr. Abraham. In addition
to the reasons we have discussed in previous communications and as explained in more detail
below,
That knowledge alone—which obviously goes
to the heart of Plaintiffs’ case—shows that his testimony is necessary and not sought for the
purposes of harassment, as your earlier November 18, 2013 correspondence suggested.
As you know, comScore produced email correspondence from

•

Illinois / California / Colorado

Dunstan, et al. v. comScore, Inc.
December 17, 2013
Page 3 of 3

Edelson LLC

In the end,
even if,
as you stated, he is not presently involved in the “day-to-day” development, maintenance, or
handling of issues concerning the TAP program. His status as an executive cannot shield him from
testifying. See Mehang v. I-Flow Corp., No. 108-cv-0184-DFH-TAB, 2009 WL 1404603 (S.D.
Ind. May 15, 2009) (noting that in deciding whether to allow for depositions of executives, courts
consider whether the executive has “unique or personal knowledge of the situation,” and allowing
deposition of CEO where deposing party offered evidence that the CEO likely had unique
knowledge about certain relevant events); see also Patterson v. Avery Dennison Corp., 281 F.3d
676, 682 (7th Cir. 2002) (the court should consider “society’s interest in furthering ‘the
truthseeking function’” before restricting discovery).
At this juncture, we assume comScore will continue to refuse to produce Mr. Abraham and,
on that understanding, we believe the Parties have exhausted all meet and confer efforts on this
issue. Please let us know immediately if you want to discuss this matter further—otherwise, we’ll
plan on moving the Court to compel Mr. Abraham’s testimony. We’ll reach out to you separately
to confirm a workable date for the presentment hearing.
*

*

*

Please contact me should you wish to discuss any of these matters further.
Best regards,
EDELSON LLC

Rafey S. Balabanian

cc:

Mr. Jay Edelson
Mr. Chandler R. Givens
Mr. Benjamin S. Thomassen
Mr. Andrew H. Schapiro
Ms. Robyn M. Bowland
Mr. Paul F. Stack

Illinois / California / Colorado