Dunstan et al v. comScore, Inc.

Filing 305

MEMORANDUM by comScore, Inc. in Opposition to motion to compel 293 (Attachments: # 1 Exhibit A, # 2 Exhibit B (filed under seal), # 3 Exhibit C (filed under seal), # 4 Exhibit D (filed under seal), # 5 Exhibit E (filed under seal))(Bowland, Robyn)

EXHIBIT A

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of a class of similarly
situated individuals,
Plaintiffs,
v.
COMSCORE, INC., a Delaware corporation,
Defendant.

)
)
)
)
) Case No. 1:11-cv-5807
)
) Judge James F. Holderman
)
Magistrate Judge Young B. Kim
)
)
)
)
)
)

COMSCORE, INC.’S AMENDED RESPONSES AND OBJECTIONS TO PLAINTIFFS’
THIRD 30(b)(6) DEPOSITION NOTICE (TOPIC NOS. 1-10)

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Defendant comScore, Inc. (hereinafter, “comScore”) by and through its undersigned
counsel responds and objects to the November 13, 2013 30(b)(6) Deposition Notice (“the
Notice”) by Plaintiffs Mike Harris and Jeff Dunstan (hereinafter “Plaintiffs”) as follows:
GENERAL OBJECTIONS
comScore asserts the following General Objections to Plaintiffs’ 30(b)(6) Deposition
Notice that apply to all Deposition Topics of the Notice. For select Topics, additional Specific
Objections are set forth following these General Objections.
1.

comScore objects to the date and time of the noticed Rule 30(b)(6) deposition.

comScore will make a witness or witnesses available to testify on a mutually convenient date and
at a location to be specified in separate correspondence.
2.

comScore objects to each Topic, and to the Definitions, to the extent that they

purport to impose any obligations or burdens upon comScore different from or in addition to
what is required by the Federal Rules of Civil Procedure, the Local Rules of this Court, any
governing case law, or other applicable authority.
3.

comScore objects to any Topic to the extent it seeks information that is protected

by the attorney-client privilege, work-product doctrine, or any other common law or statutory
privilege or protection, including common interest or joint defense privileges or protections, or
seeks other information that is otherwise protected from discovery or disclosure. Nothing
contained in these responses or any testimony provided by a witness or witnesses on comScore’s
behalf is intended to be nor should be considered to be a waiver of any attorney-client
communication privilege, common interest privilege or protection, work product privilege or
protection, or any other applicable privilege, protection or doctrine, and to the extent that any

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interrogatory may be construed as calling for disclosure of information protected by such
privileges or doctrines, a continuing objection to each and every such Topic is hereby asserted.
4.

comScore objects to each and every Topic to the extent that it is overbroad and

unduly burdensome.
5.

comScore objects to each and every Topic to the extent that it is vague,

ambiguous, or confusing, by failing to adequately define terms or by using terms the meaning of
which are not readily available or decipherable.
6.

comScore objects to each and every Topic to the extent that it seeks information

that is not relevant to a claim or defense of any party nor reasonably calculated to lead to the
discovery of admissible evidence.
7.

comScore objects to each Topic to the extent it exceeds the scope of permissible

discovery by calling for information that is neither relevant to any claim or defense in this
litigation nor reasonably calculated to lead to the discovery of admissible evidence.
8.

comScore objects to each and every Topic to the extent it seeks information that is

not within comScore’s possession, custody, or control.
9.

comScore objects to each and every Topic to the extent that any information

requested is already in the possession, custody, or control of Plaintiffs, or may be obtained from
publicly available sources.
10.

comScore objects to each Topic to the extent that it requires comScore to provide

information beyond what is available to comScore at present from a reasonable search of its own
files likely to contain relevant or responsive documents and from a reasonable inquiry of its
present employees.

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11.

comScore objects to each Topic to the extent it seeks confidential and proprietary

information, including trade secrets and competitively sensitive business information, where
such information is not necessary to the prosecution of Plaintiffs’ claims and/or any purported
marginal benefit of disclosure of the requested information is outweighed by the burden
associated with disclosing such highly sensitive information. Subject to its other General
Objections, and any specific objections set forth below, comScore will only provide relevant
information in a manner consistent with the Protective Order entered by the Court in this matter.
12.

comScore objects to each Topic to the extent it purports to require the disclosure

of proprietary and confidential information of any third parties to whom comScore may be under
obligations of confidentiality.
13.

comScore objects to each Topic to the extent that it calls for a legal conclusion,

presents a question of pure law, and/or calls for expert testimony.
14.

comScore objects to the definition of “Your,” “Your,” “Defendant,” and/or

“comScore” as overly broad and unduly burdensome to the extent that it includes “Defendant
comScore, Inc. and its divisions, subsidiaries, related companies, predecessors, and successors,
all present and former officers, directors, agents, attorneys, employees, and all Persons acting or
purporting to act on behalf of any of them.” comScore further objects to this definition to the
extent it (i) seeks information that is not within comScore’s possession, custody or control; (ii) is
overly broad, oppressive, and unduly burdensome in that it encompasses entities who are not
parties to this lawsuit and over whom comScore has no control; (iii) is not reasonably limited in
time or scope, in that it is not limited to the time period relevant to this litigation; and (iv)
explicitly seeks information that is protected from disclosure by the attorney-client privilege,

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attorney work product doctrine, common purpose privilege, joint defense privilege, and/or any
other applicable privilege or immunity, particularly in that the definition includes attorneys.
15.

comScore objects to the definition of “Panelist” as vague and ambiguous, and as

seeking information regarding comScore panelists not part of the class certified by the Court.
comScore will limit its Responses to the Notice to comScore panelists who are part of the class
certified by the Court.
16.

comScore objects to the definition of “Panelist Software” as vague and

ambiguous with respect to “all versions and/or builds” and “released and/or available,” and to the
extent Plaintiffs seek information regarding comScore panelists not part of the class certified by
the Court.
17.

comScore objects to the definition of “Person” as overly broad, unduly

burdensome, vague and ambiguous. comScore further objects to this definition on the grounds
that it seeks information that is not relevant nor reasonably calculated to lead to the discovery of
admissible evidence. comScore further objects to this definition as seeking information that is
not within comScore’s possession, custody, or control.
18.

comScore reserves the right to assert additional objections to these Topics as

appropriate.
19.

comScore’s responses are not to be construed as an admission that any definition

provided by Plaintiffs is either factually correct or legally binding upon comScore, or as a waiver
of any of comScore’s objections, including but not limited to objections regarding
discoverability of information or other evidence, that any of the requested information exists,
that any information is admissible, relevant or reasonably calculated to lead to the discovery of

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admissible evidence, or that any contention or assumption contained in the Topics, whether
implicit or explicit, is correct.
20.

comScore’s investigation is ongoing in this matter, and it reserves the right to

supplement its responses and objections as appropriate.
21.

comScore incorporates by reference its General Objections in each of the specific

responses set forth below.
DEPOSITION TOPICS
TOPIC NO. 1:
Third Party Application Providers (“TAPs”), including (i) Your decision to partner
with TAPs, (ii) Your decision to distribute Panelist Software bundled with TAP applications, (ii)
Your decision to distribute Panelist Software bundled with TAP applications, (iii) any methods
used by You to vet potential TAPs, and (iv) any methods used by You to exercise oversight over
active TAPs.
RESPONSE TO TOPIC NO. 1:
In addition to its General Objections, which it hereby incorporates by reference,
comScore objects to this Topic on the grounds that: (i) it is overly broad and unduly burdensome
in that it seeks information regarding comScore’s decision to partner with TAPs and distribute
Panelist Software bundled with TAP applications; (ii) it is vague and ambiguous, including with
respect to the terms and phrases “vet” and “oversight;” (iii) is not reasonably limited in time and
scope; and (iv) it seeks information that is duplicative or, or more appropriately obtained
through, other forms of discovery and/or information that has already been provided by
comScore during class discovery and class notice discovery.

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Subject to and without waiving the foregoing General and Specific Objections, comScore
responds as follows:
comScore will offer a witness to testify regarding comScore’s policies and procedures for
selecting TAP partners and supervising TAP partners’ offer of comScore’s software. comScore
will also offer a witness to testify regarding comScore’s decision to partner with TAP partners.
TOPIC NO. 2:
Downloading Statements, including (i) Your decision to present a Downloading
Statement with a link to the Panelist Software Privacy Policy and User License Agreement
(“ULA”) to potential Panelists, (ii) Your decision to recommend that TAPs include certain
design elements in their Downloading Statements, and (iii) Your decision to design RKVerify to
detect certain strings present in the Downloading Statement.
RESPONSE TO TOPIC NO. 2:
In addition to its General Objections, which it hereby incorporates by reference,
comScore objects to this Topic on the grounds that: (i) it is overly broad and unduly burdensome
in that it seeks information regarding comScore’s capabilities with respect to panelists who are
not members of the certified class; (ii) it is vague and ambiguous, including with respect to the
terms and phrases “certain extra design elements” and “certain strings;” (iii) is not reasonably
limited in time and scope; (iv) seeks privileged or work product information; (v) seeks irrelevant
information regarding TAP partners’ Downloading Statements; and (vi) it seeks information that
is duplicative or, or more appropriately obtained through, other forms of discovery and/or
information that has already been provided by comScore during class discovery and class notice
discovery.

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Subject to and without waiving the foregoing General and Specific Objections, comScore
responds as follows:
comScore will offer a witness to testify regarding comScore’s requirements regarding
how TAP partners display comScore’s ULA, comScore’s decision to use RKVerify, and
comScore’s decisions regarding presenting a Downloading Statement and TAP partner
requirements.
TOPIC NO. 3:
Distribution of Panelist Software, including (i) Your decision to create separate brands
of Panelist Software (e.g. RelevantKnowledge), (ii) Your decision to distribute branded Panelist
Software through program sponsors (e.g. TMRG, Inc.) and (iii) Your relationship and
communications with program sponsors.
RESPONSE TO TOPIC NO. 3:
In addition to its General Objections, which it hereby incorporates by reference,
comScore objects to this Topic on the grounds that: (i) it is overly broad and unduly burdensome
in that it seeks information regarding comScore’s capabilities with respect to panelists who are
not members of the certified class; (ii) it is vague and ambiguous, including with respect to the
terms and phrases “relationship” and “program sponsors;” (iii) is not reasonably limited in time
and scope; and (iv) it seeks information that is duplicative or, or more appropriately obtained
through, other forms of discovery and/or information that has already been provided by
comScore during class discovery.
Subject to and without waiving the foregoing General and Specific Objections, comScore
responds as follows:

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comScore will offer a witness to testify regarding comScore’s TAP program-related
subsidiaries and program sponsors. comScore will also offer a witness to testify regarding
comScore’s decisions to use separate brands and program sponsors.
TOPIC NO. 4:
Tracking of Data Concerning Panelist Software, including (i) Your tracking of
Panelist Software installation rates and (ii) Your tracking of Panelist attrition rates.
RESPONSE TO TOPIC NO. 4:
In addition to its General Objections, which it hereby incorporates by reference,
comScore objects to this Topic on the grounds that: (i) it is overly broad and unduly burdensome
in that it seeks information regarding comScore’s capabilities with respect to panelists who are
not members of the certified class; (ii) it is vague and ambiguous, including with respect to the
terms and phrases “installation rates” and “attrition rates;” (iii) is not reasonably limited in time
and scope; and (iv) it seeks information that is duplicative or, or more appropriately obtained
through, other forms of discovery and/or information that has already been provided by
comScore during class discovery and class notice discovery.
Subject to and without waiving the foregoing General and Specific Objections, comScore
responds as follows:
comScore will offer a witness to testify regarding comScore’s procedures for tracking the
rates at which TAP panelists download and remove comScore’s software from TAP panelists’
computers.
TOPIC NO. 5:
Complaints and Concerns About Panelist Software, including (i) Your knowledge of
any Panelists not being aware that Panelist Software had been installed and/or was running on

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their computers, (ii) any policies and procedures established by You to review and address
complaints about the Panelist Software, (iii) any concerns You have had regarding the legality of
the distribution of Your Panelist Software.
RESPONSE TO TOPIC NO. 5:
In addition to its General Objections, which it hereby incorporates by reference,
comScore objects to this Topic on the grounds that: (i) it is overly broad and unduly burdensome
in that it seeks information regarding comScore’s capabilities with respect to panelists who are
not members of the certified class; (ii) it is vague and ambiguous, including with respect to the
terms and phrases “aware,” and “running;” (iii) is not reasonably limited in time and scope; (iv)
seeks privileged or work product information; and (v) it seeks information that is duplicative or,
or more appropriately obtained through, other forms of discovery and/or information that has
already been provided by comScore during class discovery and class notice discovery.
Subject to and without waiving the foregoing General and Specific Objections, comScore
responds as follows:
comScore will make a witness available to testify regarding policies and procedures
established by comScore to address communications with TAP panelists and comScore’s
knowledge of TAP panelists who claimed to not know they had downloaded comScore’s
software.
TOPIC NO. 6:
Efforts Regarding the Public Perception of Panelist Software, including (i) Your
relationships with anti-virus software companies, (ii) any arrangements between You and Search
Engine Optimization (“SEO”) companies, and (iii) any arrangements between You and
companies that provide privacy compliance certifications.

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RESPONSE TO TOPIC NO. 6:
In addition to its General Objections, which it hereby incorporates by reference,
comScore objects to this Topic on the grounds that: (i) it is overly broad and unduly burdensome
in that it seeks information regarding comScore’s capabilities with respect to panelists who are
not members of the certified class and information that is not relevant to the above-captioned
matter; (ii) it is vague and ambiguous, including with respect to the terms and phrases “anti-virus
software companies” and “privacy compliance certifications;” (iii) is not reasonably limited in
time and scope; and (iv) it seeks information that is duplicative or, or more appropriately
obtained through, other forms of discovery and/or information that has already been provided by
comScore during class and class notice discovery.
Subject to and without waiving the foregoing General and Specific Objections, comScore
responds as follows:
comScore will make a witness available to testify regarding comScore’s relationship with
companies that audit, certify, or otherwise review comScore’s business practices with respect to
privacy concerns.
TOPIC NO. 7:
Decisions Regarding Data Collected by Panelist Software, including (i) Your
decisions about the types of data to access, or not access, on Panelists’ computers, (ii) Your
decisions about the types of data to collect, or not collect, from Panelists’ computers, (iii) Your
decision to begin and then continue “fuzzifying” data collected from Panelists’ computers, and
(iv) Your decision to erase Panelist data from Your servers at certain intervals.

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RESPONSE TO TOPIC NO. 7:
In addition to its General Objections, which it hereby incorporates by reference,
comScore objects to this Topic on the grounds that: (i) it is overly broad and unduly burdensome
in that it seeks information regarding comScore’s capabilities with respect to panelists who are
not members of the certified class; (ii) it is vague and ambiguous, including with respect to the
terms and phrases “erase,” “Your servers,” and “certain intervals;” (iii) is not reasonably limited
in time and scope; and (iv) it seeks information that is duplicative or, or more appropriately
obtained through, other forms of discovery and/or information that has already been provided by
comScore during class and class notice discovery.
Subject to and without waiving the foregoing General and Specific Objections, comScore
responds as follows:
comScore has already provided a 30(b)(6) witness on these topics, as well as responded
to numerous Interrogatories and Document Requests regarding these topics. However,
comScore will make available a witness to testify regarding decisions regarding data collected by
panelist software to the extent such discovery has not already been provided.
TOPIC NO. 8:
Panelist Software ULAs, including (i) Your involvement in drafting the Panelist
Software ULA, (ii) Your decision to use specific terms to describe the Panelist Software’s
collection of Panelist data in the ULA, (iii) Your determination of what constitutes “confidential
personally identifiable information,” (iv) Your determination of what constitutes “commercially
viable efforts,” and (v) Your determination of what constitutes “purging” data.

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RESPONSE TO TOPIC NO. 8:
In addition to its General Objections, which it hereby incorporates by reference,
comScore objects to this Topic on the grounds that: (i) it is overly broad and unduly burdensome
in that it seeks information regarding comScore’s capabilities with respect to panelists who are
not members of the certified class; (ii) it is vague and ambiguous, including with respect to the
terms and phrases “involvement” and “specific terms;” (iii) is not reasonably limited in time and
scope; (iv) seeks privileged or work product information; and (v) it seeks information that is
duplicative or, or more appropriately obtained through, other forms of discovery and/or
information that has already been provided by comScore during class and class notice discovery.
Subject to and without waiving the foregoing General and Specific Objections, comScore
responds as follows:
comScore will make a witness available to testify regarding comScore’s understanding of
what constitutes “confidential personally identifiable information,” “commercially viable
efforts,” and “purging” data. comScore will also make a witness available to testify regarding
the decision to include terms within the ULA to the extent such information does not constitute
privileged material.
TOPIC NO. 9:
Revenues and Profits, including the revenues and profits You derived from sharing or
selling data that You collect from Panelists, whether individually or in aggregate.
RESPONSE TO TOPIC NO. 9:
In addition to its General Objections, which it hereby incorporates by reference,
comScore objects to this Topic on the grounds that: (i) it is overly broad and unduly burdensome
in that it seeks information regarding comScore’s capabilities with respect to panelists who are

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not members of the certified class; (ii) it is vague and ambiguous, including with respect to the
terms and phrases “sharing,” “selling,” and “in aggregate;” (iii) is not reasonably limited in time
and scope; and (iv) it seeks information that is duplicative or, or more appropriately obtained
through, other forms of discovery and/or information that has already been provided by
comScore during class discovery and class notice discovery.
Subject to and without waiving the foregoing General and Specific Objections, comScore
responds as follows:
comScore does not have specific information regarding revenues and profits made from
the sale of TAP panelists’ aggregated information. comScore does not sell individual-level
information. comScore will make a witness available to testify regarding comScore’s overall
revenues and profits.
TOPIC NO. 10:
Use of Panelist Data, including Your combining and/or “matching” of Panelist data with
information from third parties.
RESPONSE TO TOPIC NO. 10:
In addition to its General Objections, which it hereby incorporates by reference,
comScore objects to this Topic on the grounds that: (i) it is overly broad and unduly burdensome
in that it seeks information regarding comScore’s capabilities with respect to panelists who are
not members of the certified class; (ii) it is vague and ambiguous, including with respect to the
terms and phrases “use,” “combining,” and “matching;” (iii) is not reasonably limited in time and
scope; and (iv) it seeks information that is duplicative or, or more appropriately obtained
through, other forms of discovery and/or information that has already been provided by
comScore during class discovery and class notice discovery.

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Subject to and without waiving the foregoing General and Specific Objections, comScore
responds as follows:
comScore will make a witness available to testify regarding comScore’s use of third party
matching companies.

DATED: December 20, 2013

By /s/ Andrew Schapiro
Andrew Schapiro
Email: [e-mail]
Stephen Swedlow
Email: [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, INC.’S
AMENDED RESPONSES AND OBJECTIONS TO PLAINTIFFS’ THIRD 30(b)(6)
DEPOSITION NOTICE (TOPIC NOS. 1-10) has been caused to be served on December 20,
2013 to all counsel of record via email.
_/s/ Robyn M. Bowland
Robyn M. Bowland

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