Dunstan et al v. comScore, Inc.

Filing 60

REPORT of Rule 26(f) Planning Meeting (Attachments: # 1 Exhibit A)(Scharg, Ari)

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,
v.
COMSCORE, INC., a Delaware corporation,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

No. 11-cv-5807
Hon. James F. Holderman

REPORT OF THE PARTIES’ PLANNING MEETING
1.

The following persons participated in a telephonic Rule 26(f) conference on October
28, 2011, and have continued to collaborate via e-mail and telephone:
For Plaintiffs Mike Harris and Jeff Dunstan (collectively, the “Plaintiffs”): Ari J. Scharg,
William C. Gray, and Chandler R. Givens of Edelson McGuire, LLC.
For Defendant comScore, Inc. (“comScore” or “Defendant”): Whitty Somvichian and
Ray Sardo of Cooley LLP.

2.

Initial Disclosures.
The Parties exchanged their Fed. R. Civ. P. 26(a)(1) disclosures on December 7, 2011.

3.

Discovery Plan. The Parties propose the following discovery plans:
Plaintiffs’ Proposal: Plaintiffs oppose bifurcation of discovery given the significant

overlapping of issues and that bifurcation would only lead to delay and unnecessary discovery
disputes over whether an issue is “premature.” Plaintiffs propose instead that class and merits
discovery commence simultaneously and begin immediately.
Defendant’s Proposal: comScore agrees that initial discovery will include production of
the following, per the discussions of the parties: (1) comScore’s Windows-based source code as
it existed on September 17, 2009; (2) documents explaining the purpose of thirteen updates to the
Windows-based source; (3) the single version of the Mac Panel software’s source code; and (4)
1

the source code for each version of RK Verify used in the last two years (RK Verify is software
designed to ensure that prospective Panelists are shown, and acknowledge agreeing to,
comScore’s Terms of Service before they are allowed to install the comScore software). (See
“Phase 1” of Source Code Discovery Plan Plaintiffs reference below and attach to this Statement
as Exhibit “A”). Beyond the above discovery, comScore proposes that (i) discovery initially be
limited to matters relevant to class certification issues, and (ii) discovery on issues relevant only
to merits issues be deferred until the Court rules on Plaintiffs’ anticipated class certification
motion.
(a)

Subjects on Which Discovery Will be Needed:

Plaintiffs anticipate taking discovery on the following non-exhaustive list of topics: (1)
Defendant’s development, design, creation, capabilities, and functionality of the software at issue
(“Panelist Software”), (2) Defendant’s implementation, deployment, and maintenance of the
Panelist Software, (3) the circumstances surrounding the manner in which Plaintiffs and the
Classes downloaded the Panelist Software, including issues involving consent, (4) the manner in
which the Panelist Software operates and functions, (5) the effect that the Panelist Software had
on the Plaintiffs’ and the Classes’ computers, (6) the manner in which the Panelist Software
transmitted information to Defendant, (7) the relationship between Defendant and its third-party
bundling partners, (8) the Mac Panel, including the scope of information collected through
panelists, the investigation, and ensuing termination, (9) Defendant’s retention of consumers
personally identifiable information (“PII”), (10) the total number of consumers that have
downloaded Panelist Software, (11) Defendant’s use of its panelists’ PII, and (12) Defendant’s
use and disclosure to third parties of its panelists’ PII.
Defendant anticipates taking discovery on the following non-exhaustive list of topics: (1)
class certification issues, including, among other things, ascertainability, numerosity, typicality,
commonality, adequacy, predominance, and superiority; (2) the “multiple digital forensic firms”
Plaintiffs refer to in the press, and the “dozens of independent tests” allegedly conducted by

2

these firms; (3) Plaintiffs’ and putative class members’ experience with comScore’s software; (4)
Plaintiffs’ and putative class members download and installation of comScore’s software; (5)
Plaintiffs’ and putative class members’ alleged damages; and (6) Plaintiffs’ press releases and
contacts with the press that relate to comScore or this lawsuit
(b)

Date for Commencing Discovery:

The Parties agree to an initial phase of discovery as set forth in the source code discovery
plan attached hereto as Exhibit A. The parties will meet and confer further on the other proposed
phases of source code discovery referenced in Exhibit A.
Plaintiff proposes that discovery on class and merits issues commence simultaneously
and immediately (given that the Parties have already conducted their Rule 26(f) conference).
comScore proposes, beyond the initial phase of discovery, (i) that discovery on class
certification issues begin upon the Court’s entry of a scheduling order, and (ii) that discovery
pertaining only to merits begin after the Court rules on Plaintiffs’ anticipated motion for class
certification.
(c)

Date for Completing Discovery:

Plaintiffs’ position is that class and merits-based discovery should proceed
simultaneously and immediately, and therefore, propose that discovery closes on October 19,
2012.
comScore’s position is that class discovery should be completed by the July 2, 2012 date
that the parties have agreed upon for Plaintiffs to file their class certification motion. comScore
proposes that merits discovery should be completed within four months of the Court’s ruling on
Plaintiffs anticipated class certification motion, so that the total length of the discovery period
under comScore’s proposal would be 10 months, or approximately the same total length of the
discovery period proposed by Plaintiffs.
(d)

Maximum Number of Interrogatories:

Plaintiffs’ Proposal. Plaintiffs Harris and Dunstan each expect to use a maximum of 25
3

interrogatories, as allowed by the Federal Rules of Civil Procedure.
comScore’s Proposal. comScore proposes that the parties abide by the interrogatory limit
set forth in the Federal Rules of Civil Procedure and that the parties will meet and confer as
needed in the event Plaintiffs believe there is a good faith need for additional interrogatories
under the circumstances. comScore disagrees that each individual Plaintiff is entitled to serve 25
interrogatories directed to comScore.
The Parties agree that responses to interrogatories shall be due in accordance with the
Federal Rules of Civil Procedure.
(e)

Maximum Number of Requests for Admissions:

Plaintiffs’ Proposal. Plaintiffs anticipate that they will need 30 requests for admissions.
comScore’s Proposal. comScore proposes that the parties abide by the limit on the
number of requests for admission set forth in the Federal Rules of Civil Procedure and that the
parties will meet and confer as needed in the event Plaintiffs believe there is a good faith need
for additional requests for admissions under the circumstances.
The Parties agree that responses to requests for admissions shall be due in accordance
with the Federal Rules of Civil Procedure.
(f)

Maximum Number of Depositions:

Plaintiffs currently expect that they will need a maximum of 10 depositions.
comScore currently expects that it will need to take the depositions of Plaintiffs and
Plaintiffs’ experts, including the persons referenced in Plaintiffs’ counsel’s press releases as
having tested the comScore software.
(g)

Hours Needed for Depositions:

The Parties anticipate that they will require 7 hours to take each deposition.
(h)

Deadlines for Exchanging Reports of Expert Witnesses:

The Parties propose that Plaintiffs submit their class-related expert reports two months
4

before the deadline for Plaintiffs to file their class certification motion. The Parties propose that
comScore submit its class-related expert reports one month before the deadline for Plaintiffs to
file their class certification motion. The Parties agree that depositions of class-related experts
will be completed before the deadline for Plaintiffs to file their class certification motion.
The Parties propose that Plaintiffs submit their merits expert reports within one month of
the close of discovery. The Parties propose that comScore submits its merit expert reports within
one month of Plaintiffs’ submission of their merit expert reports.
(i)

Dates for Supplementations Under Fed. R. Civ. P. 26(e):

The Parties agree to supplement their discovery responses in a timely manner, as required
by Fed. R. Civ. P. 26(e).
Beyond that required by the Federal Rules, Plaintiff proposes that supplementation
should be completed by the close of discovery (i.e., October 19, 2012).
Beyond that required by the Federal Rules, Defendant proposes that supplementation
should be completed by the close of discovery (four months after class certification under
comScore’s proposal).
4.

Other Items:
(a)

A Date if the Parties Ask to Meet With the Court Before a Scheduling Order:

The Parties do not currently contemplate requesting a meeting with the Court before
entry of a scheduling order.
(b)

Requested Dates for Pretrial Conferences:

Plaintiffs propose January 28, 2013.
Defendant proposes the date three months after comScore’s proposed close of discovery.
(c)

Final Dates for the Plaintiffs to Amend Pleadings of to Join Parties:

April 20, 2012.
5

(d)

Final Dates for the Defendant to Amend Pleadings or to Join Parties:

May 21, 2012.
(e)

Final Dates to file Dispositive Motions:

Plaintiffs propose November 19, 2012.
Defendant proposes 30 days after the close of merits discovery (which comScore
proposed to close four months after a ruling on class certification). In general, comScore’s
proposed dates are intended to approximate the time periods proposed by Plaintiffs, with the
difference being Plaintiffs’ dates are based on an October 19, 2012 close of discovery and
comScore’s dates are based on a close of discovery four months after a ruling on class
certification.
(f)

State the Prospects for Settlement:

comScore believes Plaintiffs’ claims are factually inaccurate and without merit and
intends to vigorously defend this lawsuit.
(g)

Identify any Alternative Dispute Resolution Procedure that may Enhance
Settlement Prospects:

Plaintiffs believe that the Parties would benefit from private mediation.
(h)

Final Dates for Submitting Fed. R. Civ. P. 26(a)(3) Witness Lists,
Designations of Witnesses Whose Testimony will be Presented by Deposition,
and Exhibit Lists:

Plaintiffs propose February 28, 2013.
Defendant proposes the date four months after comScore’s proposed close of discovery.
(i)

Final Dates to File Objections Under Fed. R. Civ. P. 26(a)(3):

Plaintiffs propose March 15, 2013
Defendant proposes the date five months after comScore’s proposed close of discovery..
.

6

(j)

Suggested Trial Date and Estimate of Trial Length:

Plaintiffs propose May 1, 2013
Defendant proposes the date six months after comScore’s proposed close of discovery.
The Parties estimate that trial will last five (5) days.
(k)

Deadline for Plaintiffs to File Their Supplemental Motion for Class
Certification:

The Parties propose that Plaintiffs will file their Supplemental Motion for Class
Certification on or by July 2, 2012.
(l)

Other Matters:

There are no other matters to be reported to the Court at this time. For the convenience of
the Court, all proposed deadlines are set forth in the table below.

Plaintiffs’
Proposed Date
April 20, 2012

Defendant’s
Proposed Date
Plaintiff: Same

Event
Final Dates for Parties to Amend the Pleadings or Join
Parties

comScore: May
21, 2012
May 1, 2012
June 1, 2012
July 2, 2012
August 17, 2012

Deadline for Plaintiffs’ Expert Reports on Class
Certification Issues
Deadline for comScore’s Expert Reports on Class
Same
Certification Issues
Deadline for Plaintiffs to File Supplemental Motion for
same
Class Certification
Deadlines for Plaintiff to Disclose Merits-Based Expert
two months
before comScore’s Reports
proposed close of
discovery.
Same

7

September 19,
2012

one month before
comScore’s
proposed close of
merits discovery

Deadlines for Defendant to Disclose Merits-Based Expert
Reports

October 19, 2012

Class-related
discovery:

Date for Completing Discovery

By July 2, 2012
Merits discovery:
within four
months of the
Court’s ruling on
Plaintiffs’ class
certification
motion
November 19,
2012

30 days after the
close of discovery
under comScore’s
proposal

Deadline to File Dispositive Motions

January 28, 2013

Three months
after comScore’s
proposed close of
discovery

Requested Date for Pretrial Conferences

February 28, 2013 Four months after
comScore’s
proposed close of
discovery

Final Dates for Submitting Fed. R. Civ. P. 26(a)(3) Witness
Lists, Designations of Witnesses Whose Testimony will be
Presented by Deposition, and Exhibit Lists

March 15, 2013

Five months after
comScore’s
proposed close of
discovery

Final Dates to File Objections Under Fed. R. Civ. P.
26(a)(3)

April 15, 2013

Six months after
Suggested Trial Date
comScore’s
proposed close of
discovery proposal

8

Date: December 15, 2011

Respectfully submitted,
Edelson McGuire LLC
/s/ Ari J. Scharg
Jay Edelson
William C. Gray
Ari J. Scharg
Chandler R. Givens
Edelson McGuire, LLC
350 N. LaSalle St., Suite 1300
Chicago, IL 60654
Tel: [phone]
[e-mail]
[e-mail]
[e-mail]

Date: December 15, 2011

Cooley LLP
/s/ WhittySomvichian____________
Michael G. Rhodes,(admitted pro hac vice)
Whitty Somvichian, (admitted pro hac vice)
Ray Sardo,(admitted pro hac vice)
COOLEY LLP
101 California Street, 5th Floor
San Francisco, CA 94111
Telephone: [phone]
[e-mail]
[e-mail]
[e-mail]

9