Dunstan et al v. comScore, Inc.

Filing 326

MOTION by Plaintiffs Jeff Dunstan, Mike Harris for leave to file excess pages Instanter (Balabanian, Rafey)

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.

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

COMSCORE, INC., a Delaware corporation,
Defendant.
PLAINTIFFS’ MOTION FOR LEAVE
TO FILE AN ENLARGED BRIEF INSTANTER
Plaintiffs Mike Harris and Jeff Dunstan, individually and on behalf of the Class and
Subclass (collectively “Plaintiffs”), respectfully move the Court pursuant to Local Rule 7.1 for
an order allowing them leave to file instanter an enlarged memorandum of law in support of their
Motion for Partial Summary Judgment. In support of this Motion, Plaintiffs state as follows:
1.

Plaintiffs have filed a Motion for Partial Summary Judgment (Dkt. 321), seeking

judgment in their favor on the authorization elements and consent defenses to their claims
brought under the Stored Communications Act, 18 U.S.C. §§ 2701, et seq. (“SCA”); the
Electronic Communications Privacy Act, 18 U.S.C. §§ 2510–22 (“ECPA”); and the Computer
Fraud and Abuse Act, 18 U.S.C. § 1030 (“CFAA”).
2.

Through the course of both class and merits discovery in this case, Defendant

comScore, Inc. (“comScore”) has produced tens of thousands of highly technical documents
(including source code for its tracking software, OSSProxy), the Parties have engaged in expert
discovery on several key issues, and Plaintiffs have conducted over a dozen depositions of both

comScore and comScore’s employees (most of which, of course, also centered upon comScore’s
document production), among other investigations into the merits of their claims.
3.

While Plaintiffs have endeavored to keep their briefing as succinct as possible,

due to the technical nature of their claims and the voluminous discovery that has taken place,
Plaintiffs require an additional six pages for their Memorandum of Law in support of their
Motion for Partial Summary Judgment, so that they may fully explain both the facts and the law
pertaining to the authorization elements and consent defense to their claims.
4.

As noted in Plaintiffs’ Memorandum of Law, the undisputed issues of fact in this

case show that the central issues of authorization and consent can be decided in Plaintiffs’ favor
without the need for time-consuming and expensive expert discovery. Accordingly, permitting
full briefing on these issues now will, if Plaintiffs’ motion is successful, preserve the Court’s and
the Parties’ resources by significantly narrowing the issues for expert testimony and discovery,
future summary judgment briefing, and trial.
5.

Plaintiffs’ proposed 21-page Memorandum of Law is filed at Dkt. 323 (redacted

version) and Dkt. 324 (provisionally sealed version). In accordance with Local Rule 7.1, a Table
of Contents and Table of Authorities are included in the Memorandum of Law. Should the Court
deny this Motion, Plaintiffs will withdraw that Memorandum from the docket, and attempt to file
a shorter brief.
6.

On February 20, 2014, Plaintiffs’ counsel emailed comScore’s attorneys to ask

whether comScore would stipulate to Plaintiffs’ submission of a brief in excess of 15 pages. In
response, comScore indicated that it takes no position on the instant request.
WHEREFORE, Plaintiffs Mike Harris and Jeff Dunstan respectfully request that this
Court enter an order granting this motion and permitting the filing of their 21-page Memorandum

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of Law in Support of their Motion for Partial Summary Judgment, currently filed at Dkt. 323
(redacted version) and Dkt. 324 (provisionally sealed version), and awarding such other and
further relief as it deems equitable and just.
Dated: February 21, 2014

Respectfully submitted,
MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of all others similarly
situated,
By: s/ Rafey S. Balabanian
One of Plaintiffs’ Attorneys
Jay Edelson
[e-mail]
Rafey S. Balabanian
[e-mail]
Benjamin S. Thomassen
[e-mail]
EDELSON PC
350 North LaSalle Street, Suite 1300
Chicago, Illinois 60654
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiffs, the Class, and the Subclass

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CERTIFICATE OF SERVICE
I, Rafey S. Balabanian, an attorney, hereby certify that on February 21, 2014, I served the
above and foregoing Plaintiffs’ Motion for Leave to File an Enlarged Brief Instanter 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/ Rafey S. Balabanian

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