Dunstan et al v. comScore, Inc.

Filing 67

MEMORANDUM by comScore, Inc. in support of motion for discovery 66 bifurcation (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Stack, Paul)

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.

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No. 11 C 5807
Judge Holderman
Magistrate Judge Kim

MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION
TO BIFURCATE DISCOVERY
Introduction
A denial of class certification will, as a practical matter, bring this litigation to an end.
Mr. Harris and Mr. Dunstan allege minimal damages, and their individual claims can be easily
satisfied if certification is denied. For that reason, among others, full-fledged merits discovery
should not proceed at this time. Such discovery has no bearing on the threshold question of class
certification, and would be extremely burdensome and expensive for Defendant comScore.
Indeed, Plaintiffs have propounded sweeping and intrusive discovery requests for
documents going back more than ten years (the statute of limitations for Plaintiffs’ claims is two
years) and encompassing virtually all aspects of comScore’s business.1 On their face, these
requests would require comScore to collect, search, and review a massive number of emails and
documents, the great majority of which will have no bearing at all on whether this case can
proceed as a class action under Rule 23.
1

Plaintiff Mike Harris’ First Set of Interrogatories to Defendant Comscore , Inc. is attached as Exhibit “A” to this
Memorandum. Plaintiff Mike Harris’ First Set of Requests for the Production of Documents to Defendant
Comscore, Inc. is attached as Exhibit “B” to this Memorandum.

Burdens aside, there is no reason to allow merits discovery until the Court determines
whether there will be a class and, if so, what the scope of that class will be. As things stand,
Plaintiffs are seeking to certify an expansive class encompassing individuals who used different
software and who were allegedly harmed in different ways by different alleged business
practices and different technical issues. These discrepancies among the proposed class members
will affect the contours of any class that might be certified. Launching into full merits discovery
on all alleged issues when the critical question of class certification remains unanswered would
lead to waste and inefficiency, as detailed below.
ComScore has already agreed to provide Plaintiffs with the relevant source code for the
software in dispute, as well as the source code for its “RK Verify” software that confirms that
consumers have viewed and agreed to comScore’s Terms of Service before installing the
software. This source code will allow Plaintiffs to test their core allegations on the merits while
also addressing the central issues on class certification. In addition, comScore is committing to
provide additional discovery going to these key class certification issues and others, as outlined
below. Under these circumstances, comScore respectfully requests that the Court follow the
common practice of deferring merits discovery until a ruling on Plaintiffs’ class certification
motion.
I.

BACKGROUND
ComScore is a leading Internet market research company that measures the online

activity of Internet users (“Panelists”) who volunteer to join a comScore market research panel in
exchange for various benefits, such as the planting of trees in rural communities on their behalf,
free third-party software applications, or the chance to win prizes—while helping to influence
overall trends on the Internet (in the same way Nielsen TV families influence television). (See
Compl. ¶ 25.) To join a comScore panel, a prospective Panelist must download and install
2

comScore’s software, which is available in a Windows version and was available, for a short
period of time, in a Macintosh version. (Id.) Before prospective Panelists can install comScore’s
software, they must affirmatively agree to the terms and conditions set forth in comScore’s terms
of service (“TOS”), which are presented to every prospective Panelist. (O’Toole Decl., docket
number (“Dkt. No”). 40 [“O’Toole Decl.”], at ¶¶ 3, 4.) ComScore’s software will only install if a
prospective Panelist clicks on a button to acknowledge that he or she has read and agreed to the
TOS. (Id.; Compl. at ¶¶ 38-40, Exh. A.)
The thrust of Plaintiffs’ Complaint is that comScore collects information on consumers’
Internet activity without their consent and unjustly profits by selling the information to third
parties. Specifically, Plaintiffs allege:


That Panelists do not consent to the extent of information the software actually
collects; specifically, that the software collects personal information, not just from
Panelists’ computers, but also from local networks to which Panelists’ computers are
connected, (Compl. ¶¶ 10, 11, 37, 51, 52, 54, 82, 91, 98, 105, 106);



That comScore’s full privacy policy is not as readily accessible as Plaintiffs believe it
should be, which affects Panelists’ ability to consent to its terms, (id. at ¶¶ 38, 40);



That comScore’s TOS is not displayed to prospective Panelists prominently enough
to allow them to sufficiently consent to the installation of the comScore software, (id.
at ¶¶ 12, 39);



That the comScore software installs “root certificates” on Panelists’ computers and
adjusts firewall settings, allegedly making them more susceptible to hacking attacks
(id. at ¶¶ 60-66); and



That the comScore software is difficult to remove. (id. at ¶¶ 14, 58-59).

ComScore has denied these allegations in its Answer, and in declarations filed with the
Court. (Answer, Dkt. No. 59, response to ¶¶ 10, 11, 12, 14, 38, 39, 40, 60; O’Toole Decl., Dkt.
No. 40, ¶¶ 10-14.) As referenced in comScore’s Answer, the first two allegations stem from
issues specific to comScore’s Macintosh software. (Id. at ¶¶ 10, 11, 38.) With respect to the first
allegation, comScore explained in its Answer that a glitch in the beta version of its Macintosh
3

Panel potentially allowed the software to count the number of specific types of files located on
networks to which Panelists’ Macintosh computers were connected, but did not allow the
software to determine the content of the files, or to collect private data from any non-Panelist
user of a local network. (Id. at ¶¶ 10, 11.) The glitch was promptly fixed, and information
comScore obtained from its Macintosh panel was never shared, sold, or otherwise
commercialized to any customers. (Id.)
With respect to the second allegation, comScore’s Answer explains that, for a short
period of time, one version of an installation presentation that was limited to comScore’s
Macintosh software did not contain a functioning hyperlink to comScore’s full privacy policy,
although this installation presentation still disclosed comScore’s TOS and required prospective
Panelists to acknowledge that they had read and agreed to its terms. (Id. at ¶ 38.)
With respect to the remaining issues, comScore’s Answer, and the O’Toole Declaration,
explain that the software does not install root certificates, and that the software can be easily and
permanently removed using the Windows Add/Remove Program utility, just like any other piece
of software. (Answer, response to ¶¶ 14, 60; O’Toole Decl., ¶¶ 10-14.)
II.

LEGAL STANDARDS APPLICABLE TO BIFURCATION
“[T]he decision to bifurcate discovery is within the discretion of the district court ….”

American Nurses’ Assoc. v. State of Illinois, 1986 WL 10382, at *2-*3 (N.D. Ill. Sept. 12, 1986);
Ocean Atlantic Woodland Corp. v. DRH Cambridge Homes, Inc., No. 02-c-2523, 2004 WL
609326, at *2 (N.D. Ill. Mar. 23, 2004). In fact “[i]t is recommended that no discovery on the
merits be permitted during the discovery of the class action issue, except as is relevant to the
class determination.” Plummer v. Chicago Journeyman Plumbers’ Local Union No. 130, 77
F.R.D. 399, 402 (N.D. Ill. 1977) (citing Manual For Complex Litigation). In Plummer the court
declined to permit discovery to proceed on the merits, concluding that a “bifurcated approach to
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discovery is the proper and most efficient way to administer the class action.” Id. at 401. See also
Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570-71 (11th Cir. 1992)
(“to best serve the interests of fairness and efficiency, courts may allow classwide discovery on
the certification issue and postpone classwide discovery on the merits”); Harris v. Option One
Mortgage Corp., 261 F.R.D. 98, 111 (D.S.C. July 17, 2009) (granting defendant’s motion to
bifurcate on the ground that doing so “will promote the interests of fairness and efficiency”).
Bifurcation is particularly appropriate where the denial of class certification is likely to
end the litigation or where the terms of an order granting certification could define and narrow
the issues to be litigated on the merits. In these circumstances, courts have granted bifurcation to
defer merits discovery because the class certification ruling could entirely or partially moot
further discovery on the merits. As Judge Kocoras noted in ordering bifurcation: “If class
certification is denied, the scope of permissible discovery may be significantly narrowed; if a
class is certified, defining that class should help determine the limits of discovery on the merits.”
American Nurses’ Assoc., 1986 WL 10382, at *3. See also MANUAL FOR COMPLEX LITIGATION
(FOURTH) §21.14 (2009) (“[d]iscovery relevant only to the merits delays the certification
decision and may ultimately be unnecessary” and for that reason “[c]ourts often bifurcate
discovery between certification issues and those related to the merits of the allegations.”).
For this reason, bifurcation is consistent with Rule 23’s mandate that class certification
orders be entered at “an early practicable time.” Fed. R. Civ. P. 23(c)(1)(A). Am. Nurses’ Assoc.,
1986 WL 10382, *2-*3 (granting bifurcation because it would “expedite the decision on class
certification in accord with Federal Rule 23.”) This goal of bifurcation is particularly relevant
here, as the parties have agreed to an early determination of the class certification issue (as set
forth in their Form 52 Report) and the discovery process will need to be managed carefully to
ensure compliance with that mutually agreed goal.
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III.

ARGUMENT
A.

Bifurcating Class And Merits Discovery Will Lead To Efficiencies.
1.

If A Class Is Not Certified, The Burden And Expense Of Engaging In
Merits Discovery Will Largely Be For Naught.

This litigation will not proceed if class certification is denied. Plaintiffs understand this,
and acknowledge it repeatedly in their pleadings. Paragraph 79 of the Complaint states that
“[a]bsent a class action, most members of the Classes would find the cost of litigating their
claims to be prohibitive and will have no effective remedy.” Similarly, Plaintiffs’ motion for
class certification filed with their Complaint reiterates that the alleged “injuries suffered by
individual Class members are relatively small,” and that “absent a class action, it would be
difficult, if not impossible, for the individual members of the classes to obtain effective relief.” 2
(Dkt. No. 2, Aug. 23, 2011, at 8.)
Plaintiffs’ individual claims for damages reflect the relatively small amounts at stake.
Only one of the named plaintiffs, Jeff Dunstan, alleges a loss claiming he “had to pay forty
dollars ($40)” to purchase antivirus software to remove the comScore software from his
computer. (Compl. ¶¶ 73, 118.) Both Plaintiffs claim statutory damages in an amount of $1,000
pursuant to two statutory damages provisions in the Stored Communications Act and Wiretap
Act, respectively. (Compl., at 26. ¶ D.) Notably, Plaintiffs may only recover under one of these
two statutes, not both. Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 450 (C.D. Cal. 2007).
This means that plaintiff Harris may recover, at maximum, $1,000, and plaintiff Dunstan may
recover, at maximum, $1,040.
Given the meager amounts at issue, failure to certify a class will either lead Plaintiffs to
voluntarily withdraw this action or, facilitate a quick and nominal settlement within the

2

Although Plaintiffs filed a class certification motion, it was never noticed or presented to the Court. Plaintiffs
apparently intend to file a supplemental motion.

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applicable statutory parameters. In either case, proceeding with full merits discovery before the
ruling on class certification will impose burdens that will be entirely wasted if (as we expect) the
class is not certified. This concern is heightened in this case given the scope of Plaintiffs’
pending discovery requests and the substantial costs and burdens that merits discovery in this
case could entail (as discussed further in Section IV.C., below).
The circumstances here thus stand in contrast to those in which courts have denied
bifurcation based on the likelihood that individual litigation would proceed regardless of the
outcome on class certification. See, e.g., In re Semgroup Energy Partners, L.P., Securities Litig.,
2010 WL 5376262, at *3 (N.D. Okla. Dec. 21, 2010) (denying bifurcation where numerous
plaintiffs had alleged enormous individual losses, indicating that the case would likely continue
even if class certification were denied); In re Rail Freight Fuel Surcharge Antitrust Litig., 258
F.R.D. 167, 174 (D.D.C. 2009) (denying bifurcation where eighteen plaintiffs from multiple
districts had individually sought relief before the cases were consolidated, indicating that the
case would continue even if certification were denied).
2.

Even If A Class Is Certified, Bifurcated Discovery Will Still Lead To
Greater Efficiencies And Minimize The Potential For Waste

Bifurcated discovery will also lead to efficiencies even if a class is certified, because the
certification order will likely define and narrow the issues so that the parties can better focus
merits discovery. American Nurses’ Assoc., 1986 WL 10382, at *3. As things stand, Plaintiffs
are claiming an open-ended class of millions of individuals, which spans all versions of the
comScore software (for Windows computers and Macintosh computers) and encompasses all of
the many distinct issues alleged in the Complaint. (Compl. ¶¶ 74, 76.) Correspondingly,
Plaintiffs have propounded discovery requests that are sweeping in breadth and encompass all
potential issues, including those that may well be obviated depending on the outcome of the class
certification process.
7

For example, Plaintiffs have asked comScore to identify each of its customers who access
the database derived from comScore’s software and to provide additional sensitive information
about comScore’s customer relationships. (See, e.g., Interrogatory Nos. 10 and 11, RFP Nos. 29
and 30.) The database accessed by comScore’s customers, however, is derived entirely and
exclusively from information collected from users who have downloaded the Windows version of
comScore’s software3 – whereas many of the issues alleged in the Complaint pertain only to the
software applicable to Macintosh computers. For example, Plaintiffs’ contention that the
comScore software collects information from local networks, (see, e.g., Compl. ¶¶ 10-11), stems
from a single, short term glitch that only affected comScore’s Macintosh software and not the
Windows software. Similarly, Plaintiffs’ claim that comScore’s terms of service do not always
provide a conspicuous and functioning hyperlink to its privacy policy stems from one version of
an installation presentation that was limited to comScore’s Macintosh software and did not affect
the installation of any Windows software.
If the Court ultimately certifies a class limited to these issues unique to the Macintosh
software, discovery related to comScore’s customers (who access a database derived exclusively
from the Windows software) would become entirely irrelevant. There is no reason to subject
comScore to the burdens and business complications inherent in Plaintiffs’ customer-related
discovery requests when the class certification process will determine whether discovery
regarding these customers is relevant at all.4
At the same time, there are unique hurdles to certification applicable to the Macintosh

3

As reflected in comScore’s Answer, no comScore customers have had access to any information collected from the
Macintosh version of comScore’s software because comScore never shared, sold, or otherwise commercialized the
information obtained from the Macintosh Panel. (See Answer at ¶ 10.)
4
Similarly, it would be inequitable to subject these customers to burdensome third party discovery that would be
rendered moot by a certification order that excludes Windows users from the class. Plaintiffs’ counsel has already
expressed an intention to direct third party discovery to comScore’s customers, (see, e.g., Plaintiffs’ Motion for
Expedited Discovery, Dkt. No. 6, at 7), and has previously made efforts to do so, including making a demand, on
October 12, 2011, for “an immediate Rule 26 conference so we can send out proper subpoenas.”

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Panel, which could lead to a class limited to Windows Panelists and thus narrow the scope of
merits discovery in a different way. Among other things, Plaintiffs must show that their proposed
class of Macintosh Panelists have suffered injury-in-fact sufficient to confer constitutional
standing under Article III. Because comScore never sold, shared, or otherwise commercialized
information obtained from Macintosh Panelists, these Panelist are distinguishable from Windows
Panelists in that they have no basis to claim that comScore profited from their personal
information. If Plaintiffs are unable to certify a class of Macintosh Panelists, there would be no
need for discovery targeted specifically at Macintosh-related issues.
Whichever way these issues are ultimately decided, it is clear that the contours of any
potential class would become clear only following the class certification process. Under these
circumstances, the most prudent course is to stay merits discovery until after the court has ruled
on Plaintiffs’ certification motion and defines the class, if any.
B.

comScore’s Current Agreement To Produce The Source Code In Dispute,
And To Respond To Specified Discovery, Addresses The Core Issues On
Class Certification.

The main issues on class certification are likely to be: (1) whether the comScore software
impacted the putative class members in a common manner; and (2) whether Plaintiffs can litigate
the core issue of consent (i.e., whether class members consented to installation of the comScore
software) on a class-wide basis. The materials comScore has already agreed to provide go
directly to these central issues and will allow Plaintiffs to fully assess whether they can satisfy
the elements of Federal Rule of Civil Procedure 23.
With respect to the first issue, the parties have engaged in an extensive meet and confer
process (involving their respective e-discovery liaisons as recommended under the Seventh
Circuit’s Electronic Discovery Pilot Program) and agreed on the production of certain source
code for comScore’s Panelist software (both Windows and Macintosh-based versions). Thus,
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Plaintiffs will be able to determine the precise manner in which the comScore software may have
impacted the proposed class members, including: (1) what information the software collects and
transmits to comScore; (3) how the software avoids collecting or transmitting sensitive
information like passwords, credit card numbers, social security numbers and the content of
emails; (4) how the software affects, and interacts with, Panelists’ computers (e.g., does it install
root certificates, how does it affect the system registry, does it adjusts firewall settings, etc.), and
(5) how the software can be uninstalled, among other issues. With this information, Plaintiffs
will be able to determine whether the comScore software affects Panelists in a sufficiently
common manner to satisfy the requirements of Rule 23. The source code to be provided will also
allow Plaintiffs to answer critical questions about the similarity, or dissimilarity, between
comScore’s Windows-based software and its Macintosh-based software, which also goes to the
core issue of commonality and predominance on class certification.5
With respect to the issue of consent, comScore has also agreed to provide the source code
for its “RK Verify” software, which is designed to prevent comScore’s Panelist software from
installing unless a prospective Panelist is presented with comScore’s terms of service and agrees
to its terms. This is the crux of the consent issue. Through analysis of RK Verify, Plaintiffs will
be able to determine whether, in their view, the software contains any deficiencies affecting
consent, and whether there are individualized issues that would impact certification under Rule
23. ComScore will also agree to provide (i) discovery sufficient to show the methods by which
comScore’s terms of service and other disclosures are presented to prospective Panelists, and (ii)
discovery sufficient to show the methods by which consent to comScore’s terms of service is
obtained from prospective Panelists. Several of Plaintiffs’ pending discovery requests relate to

5

This commitment to produce the relevant source code thus addresses Plaintiffs Requests for Production Nos. 2, 2728, and Interrogatories 16 and 17.

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these areas6 and comScore will commit to meet and confer in good faith to determine the precise
scope of responsive materials that will be provided on the consent issue in the initial phase of
class certification discovery.
In addition, comScore agrees that discovery on the following areas raised by Plaintiffs’
pending discovery requests is appropriate for the initial phase of class certification discovery and
will commit to meet and confer in good faith to determine the precise scope of responsive
information and documents to be provided:



Discovery on the particular agreements with the named plaintiffs (Requests Nos.
24, 25.)



The number of Panelists in the proposed class (Interrogatory No. 7.)



Complaints from Panelists about the issues raised in the Complaint (if any)
(Requests for Production Nos. 34, 35 and Interrogatory No. 8.)



C.

Discovery on the materials that comprise the contractual agreement and
applicable terms between comScore and Panelists (Requests Nos. 15, 26.)

Information on comScore’s document preservation policies and compliance in
this case (Request for Production Nos. 40-42 and Interrogatory No. 6.)
The Bulk Of Plaintiffs’ Discovery Requests Seek Information That Has No
Bearing On Class Certification.

The following discovery requests have no bearing on the elements of Federal Rule of
Civil Procedure 23, and should be stayed pending the Court’s ruling on class certification.
1.

Discovery related to comScore’s customers.

RFP Nos. 29 and 30 and Interrogatory Nos. 10 and 11 seek information related to
comScore’s customers who access comScore’s databases. The potential relevance (if any) of this
discovery will depend entirely on the outcome of the class certification process. As discussed
above, Plaintiffs’ primary grievances with the comScore software relate to issues specific to the
Macintosh Panel, yet comScore never shared, sold, or otherwise transferred information about its
6

These include Interrogatory Nos. 12-14 and Requests for Production Nos. 13, 18, 21-26.

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Macintosh Panelists to any customers. Moreover, discovery focused on comScore’s customers
has nothing to do with whether comScore Panelists share common claims and has no bearing to
applying the requirements of Rule 23.
2.

Discovery related to comScore’s third-party partners.

RFP Nos. 4, 9, 10, 11, 12, 37 and Interrogatory No. 9 seek information related to
comScore’s third-party business partners, including all contracts with those third-parties and
internal emails about those contracts. These third-parties offer comScore’s software to users
during the installation process of their own software application.7
ComScore is already committing to provide targeted discovery on the methods for
displaying comScore’s disclosures and for obtaining consent from prospective Panelists
(methods that are implemented during the process for installing the software offered by
comScore’s third-party partners). As noted, comScore will produce the source code for its RK
Verify software (which ensures that the comScore software cannot be installed along with its
third party partners’ software applications unless a user is presented with, and agrees to,
comScore’ terms of service), as well as additional materials sufficient to demonstrate the
methods for presenting comScore’s disclosures and obtaining consent from Panelists (as
discussed above).
Beyond these areas, further discovery related to comScore’s third-party partners should
be deferred because it has no relevance to class certification. In particular, comScore’s contracts
with its partners and the related negotiations and communications over those contracts have no
bearing whatsoever on any issue impacting any putative class member. Moreover, nearly all of

7

Plaintiffs refer to these partners as “bundling partners” because they allegedly “bundle” comScore’s software with
their own. This is a misnomer because the software is not actually bundled together. Rather, comScore’s third party
partners offer the comScore software as a completely independent piece of software during the download and
installation process for their own software. A prospective Panelist is free to install, or to not install, the comScore
software.

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this customer-related discovery will be irrelevant if class certification is denied. In particular, if
Plaintiffs pursue their claims on an individual basis, the pending discovery related to comScore’s
third-party partners will only be relevant, if at all, with respect to the particular third-party
partner from whom Plaintiffs themselves downloaded the comScore software.
3.

Discovery seeking internal emails and other communications
regarding the comScore software and other issues.

RFP Nos. 3, 5, 6, 7, 12, 14, 16, 17, 19, 20, 28, 30, 33, 36, 37, 38 and Interrogatory No. 4
seek production of emails and other communications involving comScore employees that relate
to various issues, including the operation of the comScore software, the documents comprising
the contractual agreement with Panelists, and comScore’s contracts with third-party partners. As
noted above, Plaintiffs are seeking production of materials over a period of more than ten years.
The burden and expense involved in responding to these requests – which will require comScore
to pull, search, and review what would almost certainly amount to several millions of pages of
emails and documents – is massive and should not be imposed on comScore prior to a class
certification ruling that may render the requests entirely moot.
As an example, Request No. 3 demands production of emails and other internal
communications that relate to the “design, development, and deployment” of comScore’s
Panelist software. This request spans virtually all internal communications regarding the
software that is the core of comScore’s business. Imposing this massive burden at this juncture
would serve no legitimate purpose. What matters ultimately is what the software does or does not
do (which will be evident from the source code comScore has agreed to provide), not what
comScore employees may have said about the software internally in daily emails.
As another example, these requests also seek production of internal emails that relate to
comScore’s Terms of Service and other materials comprising the contractual agreement with
Panelists. (See Request for Production Nos. 14-17.) But comScore is already committing to
13

produce the contractual documents themselves. Requiring comScore to search, review, and
produce internal e-mails about the drafting of these terms and other daily matters related to these
materials would add nothing to the class certification analysis.
4.

Discovery related to Trees for the Future.

RFP Nos. 31-33 and Interrogatory No. 18 seek information regarding comScore’s
relationship with Trees for the Future, which is explained above. This discovery has nothing to
do with any of the elements of Rule 23.
5.

Discovery related to termination of the Mac Panel.

RFP Nos. 6, 7, 8 and Interrogatory No. 19 seek information regarding the Macintosh
version of comScore’s software. As noted above, this software never made it past the beta testing
phase and information from the Macintosh panel was never commercialized by comScore. These
requests would require comScore to engage in a premature and burdensome document review
process that would provide nothing of value to Plaintiffs, given comScore’s existing commitment
to produce its source code, including the source code for the Macintosh software.
Plaintiffs’ discovery related to the Macintosh Panel should also be stayed because there is
a critical distinction in this case between the Macintosh software and the Windows software that
will likely affect the contours of any class that may be certified. ComScore never shared, sold, or
otherwise commercialized information it collected from Macintosh Panelists, so these putative
class members have no basis to claim injury on the grounds that comScore unlawfully profited
from their personal information (nor do they claim otherwise). Consequently, there is a
likelihood that any certified class will exclude Macintosh users, which would render these
Macintosh-related discovery requests completely irrelevant.
6.

Discovery related to experts comScore may or may not retain in
connection with this litigation.

Request No. 43 and Interrogatory No. 23 seek related to comScore’s potential experts.
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However, the parties have already worked out a process for exchanging expert reports and
conducting expert discovery on class certification issues, as set forth in the parties’ Form 52
Report. (Dkt. No. 60.) These additional discovery requests, therefore, relate only to pretrial
expert issues going to the merits issues and are premature on their face.
7.

Other discovery that has no bearing on the class certification
question, or are otherwise burdensome for this stage in the ligation.

Requests Nos. 1, 39, 44, 45 and Interrogatory Nos. 2, 3, 4, 5, 15, 20, 21 have no bearing
on class certification issues, are overly burdensome at this stage in the ligation, and/or would be
premature even in a non-class action case. By way of example, Request for Production No. 44
asks for “All DOCUMENTS, ESI, CORRESPONDENCE or COMMUNICATIONS that YOU
used, relied upon, reviewed, referenced, or consulted in drafting YOUR public response to this
lawsuit.” Interrogatory No. 20 delves into the same issue. Interrogatory No. 21 asks comScore to
“IDENTFIY and DESCRIBE each and every fact and/or documentation which YOUR
affirmative defense in the COMPLAINT are based.” ComScore should not be required to
respond to these or the other identified discovery requests at this time, which on their face relate
exclusively to merits issues (to the extent they are relevant at all).
IV.

CONCLUSION
For all of the above reasons, comScore asks that, with the exception of the materials

comScore has agreed to produce, and the discovery requests comScore is offering to provide
responses and/or objections to during the class period, all other non-class discovery in this action
be stayed.
/s/Paul F. Stack
Paul F. Stack
Mark W. Wallin
STACK & O’CONNOR CHARTERED
140 South Dearborn Street
Suite 411
Chicago, IL 60603
Telephone [phone]

/s/Whitty Somvichian
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]
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