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)

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Exhibit 12 (filed partially under seal) Page 1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MIKE HARRIS and JEFF DUNSTAN, individually and on behalf of a class of similarly situated individuals, ) ) ) ) ) Plaintiffs, ) ) -vs) ) COMSCORE, INC., a Delaware ) corporation, ) ) ) Defendant. ) __________________________________) No. 1:11-cv-5807 Judge Holderman Magistrate Judge Kim The deposition of COLIN O'MALLEY, called by the Plaintiffs for examination, pursuant to notice and pursuant to the Federal Rules of Civil Procedure for the United States District Courts pertaining to the taking of depositions, taken before Liza M. Perez, Certified Shorthand Reporter and Notary Public within and for the County of Cook and State of Illinois, at 350 North LaSalle Street, 13th Floor, Chicago, Illinois, commencing at the hour of 9:44 a.m. on the 13th day of December, A.D., 2012. Electronically signed by Liza Perez (501-125-266-1561) cfe227b5-4615-4a3e-b731-8e2db7b7c7c8 Page 4 1 (Whereupon, O'Malley Deposition 2 Exhibit No. 1 was marked for 3 identification, LMP.) 4 (Witness duly sworn.) 5 6 MR. THOMASSEN: My name is Ben. 7 8 Good morning, Mr. O'Malley. Do you mind if I call you Colin throughout today? 9 THE WITNESS: Please. 10 MR. THOMASSEN: Feel free to call me Ben. 11 The record should reflect that this is a 12 deposition of one of comScore's experts produced for 13 class certification in the matter of Mike Harris and 14 Jeff Dunstan versus comScore, Incorporated. 15 COLIN O'MALLEY, 16 called as a witness herein, having been first duly 17 sworn, was examined and testified as follows: 18 19 20 DIRECT EXAMINATION BY MR. THOMASSEN: Q. Mr. O'Malley -- Colin. I guess I'm probably 21 going to refer to you as Mr. O'Malley no matter what. 22 Have you ever been deposed before? 23 A. No. 24 Q. Okay. Electronically signed by Liza Perez (501-125-266-1561) Let me just explain a few things about cfe227b5-4615-4a3e-b731-8e2db7b7c7c8 Page 125 1 be my misunderstanding of how this works. 2 through the installation process as we'll go through 3 here, when you get to the point of being offered 4 RelevantKnowledge, you haven't downloaded it at that 5 point? 6 A. Correct. 7 Q. So is it incorrect to say that MP3 Cutter 8 When you go download includes RelevantKnowledge? 9 A. Yes. 10 Q. Okay. Do you know whether it says anywhere 11 on the MP3 Cutter website that as a part of the 12 download of MP3 Cutter, you'll be provided with an 13 opportunity to either install or download 14 RelevantKnowledge? 15 A. I haven't comprehensively reviewed the 16 website for that disclosure, so I really can't tell 17 you one way or the other. 18 will just tell you that I'd be surprised to see it 19 there, but that's not surprising to me as it's not 20 customary in many online business models to, for 21 example, register for a website and then be offered an 22 offer from a partner. 23 before your registration begins that you're going to 24 see an offer that you optionally can participate in Electronically signed by Liza Perez (501-125-266-1561) I would suggest -- well, I But to have prior disclosure cfe227b5-4615-4a3e-b731-8e2db7b7c7c8 Page 126 Electronically signed by Liza Perez (501-125-266-1561) cfe227b5-4615-4a3e-b731-8e2db7b7c7c8 Page 178 1 2 3 4 NORTHERN DISTRICT OF ILLINOIS ) EASTERN DIVISION ) STATE OF ILLINOIS ) ) COUNTY OF COOK ) SS: I, Liza M. Perez, Certified Shorthand 5 Reporter and Notary Public in and for the County of 6 Cook, State of Illinois, do hereby certify that on the 7 13th of December, A.D., 2012, the deposition of the 8 witness, COLIN O'MALLEY, called by the Plaintiffs, was 9 taken before me, reported stenographically and was 10 thereafter reduced to typewriting through 11 computer-aided transcription. 12 The said witness, COLIN O'MALLEY, was first 13 duly sworn to tell the truth, the whole truth, and 14 nothing but the truth, and was then examined upon oral 15 interrogatories. 16 I further certify that the foregoing is a 17 true, accurate and complete record of the questions 18 asked of and answers made by the said witness, at the 19 time and place hereinabove referred to. 20 21 22 The signature of the witness was not waived by agreement. Pursuant to Rule 30(e) of the Federal Rules 23 of Civil Procedure for the United States District 24 Courts, if deponent fails to read and sign this Electronically signed by Liza Perez (501-125-266-1561) cfe227b5-4615-4a3e-b731-8e2db7b7c7c8 Page 179 1 deposition transcript within 30 days or make other 2 arrangements for reading and signing thereof, this 3 deposition transcript may be used as fully as though 4 signed, and the instant certificate will then evidence 5 such failure to read and sign this deposition 6 transcript as the reason for signature being waived. 7 The undersigned is not interested in the 8 within case, nor of kin or counsel to any of the 9 parties. 10 Witness my official signature and seal as 11 Notary Public, in and for Cook County, Illinois, on 12 this 19th day of December, A.D., 2012. 13 14 15 16 17 18 Liza M. Perez, CSR Notary Public 19 South LaSalle Street, Suite 1402 Chicago, Illinois 60603 19 20 License No. 084-004686 21 22 23 24 Electronically signed by Liza Perez (501-125-266-1561) cfe227b5-4615-4a3e-b731-8e2db7b7c7c8

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