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)

Exhibit 3
(filed partially
under seal)

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,
vs.

Plaintiffs,

COMSCORE, INC., a Delaware
corporation,
Defendant.

)
)
)
)
)
)
) Case No. 1:11-5807
)
)
)
)
)

*** CONFIDENTIAL -- ATTORNEYS' EYES ONLY ***

The 30(b)(6) deposition of COMSCORE, INC.
by MICHAEL BROWN, called for examination, taken
pursuant to the Federal Rules of Civil Procedure of
the United States District Courts pertaining to the
taking of depositions, taken before JENNIFER L.
WIESCH, CSR No. 84-4528, a Notary Public within and
for the County of Will, State of Illinois, and a
Certified Shorthand Reporter of said state, at 350
North LaSalle Street, Suite 1300, Chicago, Illinois,
on the 15th day of August, A.D. 2012, at 9:36 a.m.

Job No: 26674

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

5
MICHAEL BROWN

1
2

(WHEREUPON, the witness was duly

3

sworn.)

4

MR. BALABANIAN:

This is the deposition and

5

oral examination of defendant comScore's witness

6

designated under Federal Rule of Civil Procedure

7

30(b)(6), pursuant to notice and continued by

8

agreement of the parties.
MICHAEL BROWN,

9
10

called as a witness herein, having been first duly

11

sworn, was examined and testified as follows:
EXAMINATION

12
13
14

BY MR. BALABANIAN:
Q.

I'd like to go over a few ground rules,

15

Mr. Brown.

My name is Rafey Balabanian.

I am an

16

attorney for plaintiffs, Mike Harris and Jeff

17

Dunstan.

18

who's also an attorney for plaintiffs, and Chandler

19

Givens sitting next to Ben, another attorney, and

20

then my summer associate, Amir Missaghi.

I'm joined to my left with Ben Thomassen,

I just want to talk about a couple ground

21
22

rules before we get into the questioning and

23

whatnot.

24

A.

I have.

25

Q.

Okay.

Have you ever been deposed before?

So I need verbal answers from you.

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

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MICHAEL BROWN

1
2

A.

Panelists are people that have accepted

3

and consented to install our software, take part of

4

our research program.

5
6

Q.

Okay.

who's "our"?

And when you say "our software,"

Who are you referring to?

7

A.

comScore's.

8

Q.

comScore's software.

9

Okay.

Does

comScore's software have any kind of technical name?

10

A.

Yes.

11

Q.

What is that name?

12

A.

Internally we refer to that code as the

13

OSSProxy project.

14

as CProxy.

15

engineering.

16
17

Q.

It's also sometimes referred to

That's the two generic names within

You've mentioned you've been deposed

before?

18

A.

Yes, sir.

19

Q.

Have you ever been a defendant in a

20

lawsuit?

21

MR. SCHAPIRO:

22

MR. BALABANIAN:

23
24

Personally or -Personally.

BY THE WITNESS:
A.

Yes.

25

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

63

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

64

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

65

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

66

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

71

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

72

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

73

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

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MICHAEL BROWN

1
2

Q.

What other things?

3

A.

Knowing that they were in existence from

4

having conversations with internal attorneys.
MR. BALABANIAN:

5

I want to take a break.

6

(WHEREUPON, a recess was had from

7

10:59 a.m. to 11:11 a.m.)

8

BY MR. BALABANIAN:
Q.

9

Mr. Brown, I just want to close out a

10

couple things that we talked about, that we were

11

talking about.

12

obvious, but you said that comScore designed

13

OSSProxy, and you said TMRG did not, VoiceFive did

14

not.

15

CreativeKnowledge did or did not.

16

you have an answer to that?

And I think I want to cover the

I don't know if I asked you if
Would you -- do

17

A.

comScore designed OSSProxy.

18

Q.

Solely?

19

A.

Yes.

20

Q.

Okay.

21

So none of its subsidiaries

designed it?

22

A.

Correct.

23

Q.

Okay.

Do any of comScore's subsidiaries,

24

the ones we just named or others, do they receive

25

data from OSS -- gathered by OSSProxy?
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

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MICHAEL BROWN

1
2
3

A.

Sir, we discussed multiple different

companies, so --

4

Q.

Well, take them one by one.

5

A.

Thank you, sir.

6

Q.

That's easier.

7

A.

Appreciate that.

8

Q.

TMRG, Incorporated, do you know whether

9

TMRG, Incorporated ever received panelist data?

Let

10

me withdraw that real quick.

I want to clarify a

11

couple of things.

12

going forward, I'm talking about software panelists,

13

I'm not talking about survey panelists.

When I talk about panelists today

14

A.

Okay.

15

Q.

Okay?

16

A.

Thank you.

17

Q.

So when I say panelists, I'm talking

18

about software panelists, those individuals who

19

have --

20

A.

So from this point forward, until

21

anything else changes, the definition of a panelist

22

is panelists with comScore's software on them?

23

Q.

On their system, correct.

Okay?

24

A.

Yes.

25

Q.

So with respect to TMRG, do you know

Thank you for the clarification.

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL BROWN

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2

whether that company ever receives panelist data

3

from OSSProxy?

4

A.

No.

5

Q.

What about VoiceFive, is your answer that

6

you don't know or that, no, they don't receive

7

panelist data?

8

A.

No, they don't receive panelist data.

9

Q.

Okay.

How about VoiceFive Networks, do

10

you know whether they receive panelist data from

11

OSSProxy?

12

A.

The company does not.

13

Q.

Does not.

14

What about CreativeKnowledge,

Incorporated, same question?

15

A.

The company does not.

16

Q.

What about Knowledge Networks,

17

Incorporated, same question?

18

A.

The company does not.

19

Q.

Sears Holding Management Corp., I think

20

you said you don't know if that's a comScore

21

subsidiary?

22

A.

I don't know about that.

23

Q.

Okay.

24
25

So you don't know one way or

another whether they would receive panelist data -A.

That is correct.
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL BROWN

1
2

Q.

-- from OSSProxy?

Okay.

3

With respect to TMRG, do you know whether

4

they deploy OSSProxy to potential panelists, whether

5

they offer to deploy it to potential panelists?

6
7

A.

I'm thinking, sir.

Sorry, can I ask you

to repeat the question again, sir?

8

Q.

Sure.

9

A.

I'm sorry.

10

Q.

Why don't we rephrase it slightly.

11

Might

make it easier.

12

A.

Thank you.

13

Q.

Does comScore deploy OSSProxy directly to

14

panelists, or is it done through the subsidiaries?

15

A.

comScore deploys the software.

16

Q.

Directly to its panelists?

17

A.

Yes.

18

Q.

Okay.

19
20

So I said the word deploy.

What's

your understanding of that word?
A.

My understanding of that word in the

21

context of the question is that it validates terms

22

of service that have been accepted, downloads the

23

software, it installs the software, configures the

24

software to operate properly on that machine,

25

maintains that software.
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL BROWN

1

Q.

2
3
4
5

Okay.

Right.

So let's take it one at a

time.
MR. BALABANIAN:

Actually, can you read back

his answer.

6

(WHEREUPON, the record was read by

7

the reporter.)

8
9

BY MR. BALABANIAN:
Q.

So with respect to confirming that a

10

panelist has accepted the terms of service of

11

OSSProxy, comScore directly confirms that a panelist

12

has accepted the terms of service of OSSProxy;

13

correct?

14

A.

Yes.

15

Q.

With respect to the installation of the

16

software on the panelist's system, comScore is the

17

company that is responsible for installing the

18

software onto its panelists' systems; correct?

19

A.

Yes.

20

Q.

With respect to the download of the

21

software, to the extent that's any different than

22

the installation of the software, onto panelists'

23

systems, comScore ensures that the software has been

24

downloaded; correct?

25

A.

Yes.
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

79
MICHAEL BROWN

1
2

Q.

With respect to configuring OSSProxy onto

3

panelists' systems, comScore's responsible for such

4

configurations; correct?

5

A.

Yes.

6

Q.

With respect to the maintenance of

7

OSSProxy on panelists' systems, comScore is

8

responsible for maintaining OSSProxy on those

9

systems; correct?

10

A.

Yes.

11

Q.

The subsidiaries that we went through,

12

TMRG, VoiceFive Networks, CreativeKnowledge,

13

Knowledge Networks, Incorporated, do they have any

14

role based on your understanding of confirming that

15

the terms of service have been accepted by panelists

16

for OSSProxy?

17

A.

They do have a role.

18

Q.

What role?

19

A.

Within the panelists, we have multiple

20

brands, and those -- the OSSProxy is installed

21

respective to the brand that is associated to those

22

entities.

23

Q.

Okay.

But how does that answer my

24

question with respect to them confirming a

25

panelist's acceptance of OSSProxy?
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL BROWN

1
2

withdrawn.

3

What are the differences in OSSProxy as

4

it relates to RelevantKnowledge and OpinionSquare?

5

A.

There are none.

6

Q.

There are none.

7

between RelevantKnowledge -- sorry.
What are the differences between OSSProxy

8
9
10

What are the differences

as it relates to RelevantKnowledge and
PermissionResearch?

11

A.

None.

12

Q.

Well --

13

A.

Just add a clarification to this, and I

14

think I talked about this earlier in the deposition,

15

if that's cool, acceptable.

16

Q.

Go ahead.

17

A.

When the software is installed, it's

18

installed with respect to the respective brand.

19

for example, the icon is consistent with the brand,

20

the name is consistent with the brand --

21

Q.

Okay.

22

A.

-- so --

23

Q.

So --

24

A.

But the -- so the core software is the

So,

25

same, it's just there's brand specific -DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL BROWN

1
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Q.

Got it.

3

A.

I just want to add that in there when

4

So --

you're asking the question.
Q.

5

I understand, and it helped.

Aside from

6

your qualification, there are no other real

7

differences amongst the brands?

8

A.

In regard to the software, that is true.

9

Q.

Correct.

THE WITNESS:

10

Okay.
Sir, do you mind, when it's

11

convenient, it's not an urgent, I'd like to take a

12

small break for -- visit the restroom.

13

MR. BALABANIAN:

14

THE WITNESS:

Then we'll take one.

Thank you so much.

15

(WHEREUPON, a recess was had from

16

11:38 a.m. to 11:44 a.m.)

17

BY MR. BALABANIAN:
Q.

18

I want to talk about the ways in which

19

panelists download OSSProxy onto their systems.

20

Okay?

21

A.

Okay.

22

Q.

My understanding is there's -- there's

23

basically two ways that a panelist can download

24

software, the OSSProxy software, onto their system

25

either directly from comScore or one of its
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL BROWN

1
2

A.

Okay.

3

Q.

Or by OSSProxy collecting it after the

4

panelist has accepted the terms of service and

5

downloaded it onto the system?

6

A.

7

question, sir.

8

Q.

9

I just want to make sure I answer your

Any other ways that basic demographic

information is collected?

10

A.

Yes.

11

Q.

What are those ways?

12

A.

In some cases, we will take the address

13

and use a third-party -- secure third-party matching

14

provider to understand the information about that.

15

Q.

So you'll match information that you have

16

with other information that perhaps one of your

17

business -- a company with whom you do business has

18

or that -- paint a more clear --

19

A.

Or a company that does -- that you send

20

the set of addresses to, and they tell you

21

additional information about --

22

Q.

Okay.

23

A.

-- that household if they have

24

information about that household.

25

It's not done

with a client.
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL BROWN

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make commercially viable efforts to automatically

3

filter confidential, personally identifiable

4

information such as user ID, password, credit card

5

numbers and account numbers."

6

A.

I do.

7

Q.

Okay.

Do you see that?

Can you explain to me what you

8

guys mean -- what the -- what RelevantKnowledge

9

means by commercially viable efforts?

10
11

A.

Can I explain to you the protections that

we put in place for that --

12

Q.

Okay.

13

A.

-- that comes across all brands?

14

Is that

acceptable?

15

Q.

We'll see.

16

A.

Okay.

Go ahead.

So what we've done is we've

17

implemented a set of routines that we call

18

fuzzifier.

19

posted to a website and then also on web pages that

20

we've blocked, that runs using algorithms to read

21

through that data to identify things that look like,

22

for example, credit card numbers or user IDs or

23

passwords.

24

looking for 15 and 16 digit sequences, and then we

25

destroy a chunk of that data so that we do not have

Fuzzifier operates on both data that's

Credit card numbers can be identified by

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL BROWN

1
2
3

the credit card number transmitted to our servers.
Q.

Okay.

So it says "commercially viable

4

efforts to automatically filter."

5

talked about safeguards.

6

automatically filtered?

7

understanding of that?

8

A.

9

unclear.

Yes.

We've sort of

What is meant by
Do you have an

That's the -- I'm sorry if I was

The method I was talking about as

10

fuzzification is automatic and is running and has

11

algorithms that we've -- that have been developed to

12

run on the end user's machine so that that data

13

never leaves that end user's -- or the panelist's

14

computer, so, therefore, it's automatic.

15

Q.

So comScore doesn't get that information?

16

Even if it's fuzzified, it doesn't get it in a

17

fuzzified form?

18

A.

Correct.

19

Q.

It never leaves the user's computer?

20

A.

Correct.

21

Q.

Okay.

If you read on, the last sentence

22

of that paragraph says, "Inadvertently we may

23

collect such information about our panelists.

24

when this happens, we make commercially viable

25

efforts to purge our database of such information."

And

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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DAVID FELDMAN WORLDWIDE, INC.
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MICHAEL BROWN

1
2
3

intermediary.
Q.

So now is the -- is the data just

4

directly sent to comScore's servers instead of

5

routed through a proxy server?

6

A.

In the case of the proxy server, all --

7

all -- give me a second.

I'm trying to think of the

8

best way to explain this.

9

selectively to our proxy servers, and when we are

10

operating with proxy servers prior, including and

11

prior to 2005.

12

locally, the rules are executed locally on the

13

panelist's computer, so the information of interest

14

gets sent to comScore's servers.

Data would be routed

With the CProxy running 100 percent

15

Q.

From the panelist's computer?

16

A.

From the panelist's computer, correct.

17

Q.

Okay.

18

Can you turn your attention to

kind of halfway down the page where it says XPF.

19

A.

Yes.

20

Q.

Do you know what XPF is?

21

A.

I know what XPF is in relation to this

22

document, and specifically within this section of

23

the document.

24

Q.

Okay.

25

A.

Can you explain it to me --

Sure.
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL BROWN

1
2

of information.

You have to look for two pieces to

3

see if that DLL is valid; it has to be present and

4

registered.
THE WITNESS:

5

If you guys don't mind, I'd like

6

to take a break when there's an opportune time.

7

know you're in the vain here, not urgent, I'd just

8

like to --

9

MR. BALABANIAN:

10

afraid I'm finishing.

11

I

Yeah, we're just -- I'm

about five minutes.

Let's take one now.

How

12

(WHEREUPON, a recess was had from

13

3:59 p.m. to 4:06 p.m.)

14

BY MR. BALABANIAN:
Q.

15

Why does comScore fuzzify data?

16

it collect fuzzified data?

17

Why does

collect the data at all?
A.

18
19

Why doesn't it just not

You've got a couple questions in there.

Do you want to break it down into a couple --

20

Q.

Yeah.

21

A.

We can take it one by one if you wish.

22

Q.

Yeah.

A.

We collect fuzzified data because we

23
24
25

Why does it collect fuzzified

data?

don't want to collect data that would be harmful or
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

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MICHAEL BROWN

1
2

identify who that panelist is, you know.

The last

3

thing we want to have is a list of credit card

4

numbers from panelists.

5

panelist and exposure for us.

That's an exposure for the

6

Q.

It's important to filter the information?

7

A.

In this case, we're not talking about

8

filtering the information, we're talking about

9

changing the information.

So in this case, with

10

respect to this, we're changing the information in a

11

one-way manner that's not reversible; that is the

12

goal of fuzzification.

13
14
15
16

Q.

Filtering and fuzzifying are two

different things?
A.

In my opinion, filtering and fuzzifying

are two different things.

17

Q.

18

at all, right?

19

A.

20

Filtering is just not accepting the data

That is one possible -- that is one

possible interpretation of the word filter.

21

Q.

Can you flip to 15930, Mr. Brown?

22

A.

Yes, I am there.

23

section?

24

Q.

25

Is there a particular

Actually, 15929 is where I'd like you to

start, sorry, in the very bottom.

I'm looking at

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

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STATE OF ILLINOIS

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COUNTY OF W I L L

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I, JENNIFER L. WIESCH, do hereby certify:

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That I am a duly qualified Certified

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Shorthand Reporter, in and for the State of

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Illinois, holder of certificate number 84-4528,

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which is in full force and effect, and that I am

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authorized to administer oaths and affirmations;

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That the foregoing deposition testimony

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of the herein named witness was taken before me at

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the time and place herein set forth;

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That prior to being examined, the witness

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named in the foregoing deposition was duly sworn or

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affirmed by me, to testify the truth, the whole

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truth, and nothing but the truth;

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That the testimony of the witness and all

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objections made at the time of the examination were

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recorded stenographically by me, and were thereafter

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transcribed under my direction and supervision;

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That the foregoing pages contain a full,

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true and accurate record of the proceedings and

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testimony to the best of my skill and ability;

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That prior to the completion of the
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

MICHAEL BROWN - CONFIDENTIAL - ATTORNEYS' EYES ONLY

245
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foregoing deposition, review of the transcript was

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requested.

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I further certify that I am not a

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relative or employee or attorney or counsel of any

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of the parties, nor am I a relative or employee of

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such attorney or counsel, nor am I financially

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interested in the outcome of this action.

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IN WITNESS WHEREOF, I have subscribed my
name this 22nd day of August, 2012.

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______________________________________

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JENNIFER L. WIESCH, CSR No. 84-4528

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DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]