Dunstan et al v. comScore, Inc.

Filing 325

DECLARATION of Benjamin S. Thomassen regarding motion for partial summary judgment 321 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit Exhibit List to Plaintiffs Memorandum of Law in Support of Their Motion for Partial Summary Judgment)(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,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
COMSCORE, INC., a Delaware corporation,
)
)
)
Defendant.
)
__________________________________________)

Case No. 1:11-cv-05807
Hon. James F. Holderman
Magistrate Judge Young B. Kim

DECLARATION OF BENJAMIN S. THOMASSEN
I, Benjamin S. Thomassen, pursuant to 28 U.S.C. § 1746, hereby declare as follows:
1.

I am an adult over the age of 18 and a resident of the State of Illinois. I am an

associate of the law firm Edelson PC, and licensed to practice law in the State of Illinois. I
represent Plaintiffs Mike Harris and Jeff Dunstan (“Plaintiffs”) in this matter. I am fully
competent to make this Declaration, have personal knowledge of all matters set forth herein
unless otherwise indicated, and could and would testify truthfully to such matters if called as a
witness in this action. I make this Declaration in support of Plaintiffs’ Motion for Partial
Summary Judgment.
Information Obtained about
2.

Facebook Profile

On September 9, 2013, comScore, Inc. (“comScore”) produced documents

bearing Bates numbers CS0016909 through CS0096420 to Plaintiffs.
3.

Among these documents was a July 16, 2013 email
which comScore has labeled
1

) into the
browser’s address bar and pressed the “return” key on my keyboard. The resulting screen
automatically changed the website URL to “https://www.facebook.com/
and displayed

Facebook “Timeline” page, where I was able to view

comments posted on her Facebook “wall,” access photographs relating to
view the “groups” that

, and

has joined. The page also asked “Do you know

”

and stated “To see what she shares with friends, send her a friend request.”
9.

Next, I attempted to access

“About” page by clicking the “About”

tab on her Facebook profile. I was automatically directed to

“About”

Facebook.com page at the following URL:
“https://www.facebook.com/

Under the “About” section of

“About” Facebook.com page, I was only able to see that her gender was female, and
was informed that “[t]o see wha

] shares with friends, send her a friend request.”

I could not access any information about
10.

birth year.

Using software included with the Mac OS X operating system, I captured

screenshots of the above-described screens as I accessed them. True and accurate copies of those
screenshots are attached hereto as Exhibit 31.
Information Concerning the PermissionResearch Registration Process
11.

On February 19, 2014, as part of my firm’s investigation into this case, I launched

the Mozilla Firebox browser and navigated to the PermissionResearch webpage by typing
“www.permissionresearch.com/” into the address bar and pressing the “return” key on my
keyboard.
12.

On the resulting page, I clicked a button labeled “Join Now!” and was directed to

3

the URL “https://www.permissionresearch.com/privmem.aspx,” which displayed the Privacy
Policy, User License Agreement, and Patent Notice (the “PermissionResearch ULA”) for
PermissionResearch—a “brand” of OSSProxy sponsored by “TMRG, Inc.” After indicating that
I “read [and] agree[d] to” the ULA—which stated that a user only “agree[d] to be bound [by]
installing our application”—I entered a “CAPTCHA” (a unique code) and then clicked a button
labeled “next” at the bottom of the webpage.
13.

On the following page, I was asked to “Create [my] Member Profile” by inputting

my first and last name, mailing address, email address, gender, and birthdate, and indicate how
many people lived in my home at least six months of each year. I was also prompted to create a
password and choose a security question. After inputting the relevant information, I clicked the
button marked “next” at the bottom of the page. The button would not redirect me to the next
step of the registration process unless all the requested information was submitted.
14.

On the following page, I was asked to create my “Household Profile” by

submitting additional information about myself (e.g., “head of household” status, whether I used
the Internet, whether I was a student, and whether I worked full or part time) along with the same
information about others in my household, information about my computer, and information
about my mobile devices. After inputting this information, I clicked the button marked “next” at
the bottom of the page. The button would not redirect me to the next step of the registration
process unless I submitted all the requested information.
15.

On the following page, I was provided with instructions for downloading the

“PermissionResearch installer package” and installing the PermissionResearch software. I did
not download or install the software.

4

Exhibits Referenced in Plaintiffs’ Motion for Partial Summary Judgment
16.

Attached hereto as Exhibit 1 is a true and accurate copy of excerpts from the

November 21, 2013 Deposition of comScore’s Vice President of Panel Operations, John
O’Toole.
17.

Attached hereto as Exhibit 2 is a true and accurate copy of excerpts from the

November 20, 2013 Deposition of comScore’s Director of Technology, Yvonne Bigbee.
18.

Attached hereto as Exhibit 3 is a true and accurate copy of excerpts from the

August 15, 2012 Rule 30(b)(6) Deposition of comScore’s Chief Technology Officer, Michael
Brown.
19.

Attached hereto as Exhibit 4 is a true and accurate copy of the

RelevantKnowledge User License Agreement and Privacy Policy—a version of which was
attached to Plaintiffs’ Supplemental Motion for Class Certification, (Dkt. 156-9), and which
shows the RelevantKnowledge ULA as it existed on September 15, 2010, (see Dkt. 158 at ¶¶ 59).
20.

Attached hereto as Exhibit 5 is a true and accurate copy of the PremierOpinion

User License Agreement and Privacy Policy—a version of which was attached to Plaintiffs’
Supplemental Motion for Class Certification, (Dkt. 156-10), and which shows the
PremierOpinion ULA as it existed on May 5, 2010, (see Dkt. 158 at ¶¶ 5-9).
21.

Attached hereto as Exhibit 6 is a true and accurate copy of excerpts from the

January 24, 2014 Rule 30(b)(6) Deposition of comScore’s Vice President of Financial Planning
and Analysis, Scott Mitchell.
22.

Attached hereto as Exhibit 7 is a true and accurate copy of excerpts from the

Deposition of the January 24, 2014 Rule 30(b)(6) Deposition of comScore’s Vice President of

5

Panel Operations, John O’Toole.
23.

Attached hereto as Exhibit 8 is a true and accurate copy of a document marked as

“CS81903_Confidential--Attorney’s Eyes Only.pptx,” which comScore provided to Plaintiffs as
part of its September 9, 2013 document production.
24.

Attached hereto as Exhibit 9 is a true and accurate copy of excerpts from the

December 13, 2013 Deposition of comScore’s Chief Research Officer, Joshua Chasin.
25.

Attached hereto as Exhibit 10 is a true and accurate copy of excerpts from the

September 12, 2012 Deposition of comScore’s Director of Technology, Yvonne Bigbee.
26.

Attached hereto as Exhibit 11 is a true and accurate copy of excerpts from the

Expert Witness Report of Colin O’Malley, dated November 30, 2012.
27.

Attached hereto as Exhibit 12 is a true and accurate copy of excerpts from the

December 13, 2012 Deposition of Colin O’Malley.
28.

Attached hereto as Exhibit 13 is a true and accurate copy of excerpts from the

December 3, 2013 Deposition of comScore’s Deputy Privacy Officer, Richard Weaver.
29.

Attached hereto as Exhibit 14 is a true and accurate copy of excerpts from the

November 14, 2013 Deposition of comScore’s Senior Director of Quality Assurance, Glenn
Marchione.
30.

Attached hereto as Exhibit 15 is a true and accurate copy of a document marked

“CS0035637_Confidential--Attorney’s Eyes Only.htm,” which comScore provided to Plaintiffs
as part of its September 9, 2013 document production.
31.

Attached hereto as Exhibit 16 is a true and accurate copy of excerpts from the

December 14, 2012 Deposition of Roberto Tamassia.
32.

Attached hereto as Exhibit 17 is a true and accurate copy of excerpts from the

6

October 25, 2012 Deposition of Don Waldhalm.
33.

Attached hereto as Exhibit 18 is a true and accurate copy of a document marked

“CS0017688_Confidential--Attorney’s Eyes Only.pdf,” which comScore provided to Plaintiffs
as part of its September 9, 2013 document production.
34.

Attached hereto as Exhibit 19 is a true and accurate copy of a document marked

“CS0076561_Confidential--Attorney’s Eyes Only.htm,” which comScore provided to Plaintiffs
as part of its September 9, 2013 document production.
35.

Attached hereto as Exhibit 20 is a true and accurate copy of a document marked

“CS0081698_Confidential.htm,” which comScore provided to Plaintiffs as part of its September
9, 2013 document production.
36.

Attached hereto as Exhibit 21 is a true and accurate copy of a document marked

“CS0081713_Confidential.htm,” which comScore provided to Plaintiffs as part of its September
9, 2013 document production.
37.

Attached hereto as Exhibit 22 is a true and accurate copy of excerpts from the

November 22, 2013 Deposition of comScore’s Panel Operations Manager, Latoya PetersonRenfrow.
38.

Attached hereto as Exhibit 23 is a true and accurate copy of excerpts from the

November 13, 2013 Deposition of comScore’s Director of Software Engineering, Steven Chase.
39.

Attached hereto as Exhibit 24 is a true and accurate copy of excerpts from the

January 23, 2014 Rule 30(b)(6) Deposition of comScore’s Chief Technology Officer, Michael
Brown.
40.

Attached hereto as Exhibit 25 is a true and accurate copy of a document marked

“CS0042536_Confidential--Attorney’s Eyes Only.htm,” which comScore provided to Plaintiffs

7

as part of its September 9, 2013 document production.
41.

Attached hereto as Exhibit 26 is a true and accurate copy of a document marked

“CS0071631_Confidential--Attorney’s Eyes Only.htm,” which comScore provided to Plaintiffs
as part of its September 9, 2013 document production.
42.

Attached hereto as Exhibit 27 is a true and accurate copy of excerpts from the

July 13, 2012 Deposition of Mike Harris.
43.

Attached hereto as Exhibit 28 is a true and accurate copy of excerpts from the

November 19, 2013 Deposition of Jeff Dunstan.
44.

Attached hereto as Exhibit 29 is a true and accurate copy of a document marked

“CS0082285_Confidential--Attorney’s Eyes Only.htm,” which comScore provided to Plaintiffs
as part of its September 9, 2013 document production.
45.

Attached hereto as Exhibit 30 is a true and accurate copy of excerpts from a

document marked “CS0096108_Confidential--Attorney’s Eyes Only.docx,” which comScore
provided to Plaintiffs as part of its September 9, 2013 document production.
46.

Attached hereto as Exhibit 31 is a true and accurate copy of the screenshots

relating to my investigation into

Facebook Profile
, as described supra, ¶¶ 6–10.

47.

Finally, for the Court’s convenience, attached hereto as Exhibit 32 is an Exhibit

List matching the various exhibit numbers referenced above (supra, ¶¶ 16–46) with a brief
description of each exhibit’s content.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 20th day of February, 2014 at Chicago, Illinois.

8

s/ Benjamin S. Thomassen

9

CERTIFICATE OF SERVICE
I, Benjamin S. Thomassen, an attorney, hereby certify that on February 21, 2014, I served
the above and foregoing Declaration of Benjamin S. Thomassen by causing true and accurate
copies of such paper to be transmitted to all counsel of record via the Court’s CM/ECF electronic
filing system.
s/ Benjamin S. Thomassen

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