Dunstan et al v. comScore, Inc.

Filing 70

RESPONSE by Jeff Dunstan, Mike Harris in Opposition to Defendant Comscore, Inc.'s Motion for Bifurcate Discovery 66 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Scharg, Ari) (Docket Text modified by Clerks' Office.)

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,

Case No. 1:11-5807
Hon. James F. Holderman

Plaintiffs,
Mag. Young B. Kim
v.
COMSCORE, INC., a Delaware corporation,
Defendant.
PLAINTIFFS MIKE HARRIS’ AND JEFF DUNSTAN’S RESPONSE IN OPPOSITION
TO DEFENDANT COMSCORE, INC.’S MOTION TO BIFURCATE DISCOVERY
I.

INTRODUCTION
Defendant comScore, Inc. (“comScore”) has repeatedly argued that this case should not

proceed in the Northern District of Illinois because the plaintiffs supposedly consented to a
Virginia forum selection clause and because the courts in Virginia are supposedly quicker and
more efficient. As part of this argument, comScore represented to the court that it was eager to
have a decision on the merits as quickly as possible. Judge Holderman, after investing in
numerous expedited hearings over a short period of time, rejected both of comScore’s
arguments. Judge Holderman held that the Plaintiffs have sufficiently alleged that comScore did
not properly obtain consent to its terms and conditions (which included the right to track a user’s
computer habits as well as the forum selection clause), and made it clear that he would do
everything in his power—as the Chief Judge of the Northern District—to ensure that this case
moved as quickly as Virginia’s supposed “rocket docket.”
Judge Holderman went further still, impressing upon comScore the seriousness of the
harm it allegedly caused and admonishing comScore that it should “discuss settlement of this

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case as promptly as possible” given how quickly the case would progress.
Given this context, comScore’s motion to bifurcate discovery—which would only result in
numerous discovery fights and significant delay—is surprising to say the least. Indeed,
comScore’s moving papers make clear that it is not simply trying to limit discovery into certain
issues. Instead, even for discovery it concedes relates to class certification, comScore believes
that there should be a further limiting order, implicitly prohibiting any discovery that comScore
finds invasive. However, the best proof that comScore’s position would only lead to delay and
unnecessary argument comes from what has happened in this case since the last court hearing—
some three weeks ago. comScore has produced not a single document, not a line of computer
code, and no responses to interrogatories. In short, it has continued to delay simply for delay’s
sake.
As explained below, comScore should be held to its original position, and this case
should remain on a fast track to trial. Granting comScore’s motion will serve no valid purpose.
II.

FACTUAL AND PROCEDURAL BACKGROUND

comScore collects and sells personal information without the consent of its panelists
This lawsuit challenges comScore’s unlawful collection and dissemination of Plaintiffs’
personal information. Plaintiffs allege that comScore causes spyware1 to be placed on its
“panelists” 2 computers and then uses that software to surreptitiously collect data from such
consumers without their consent. (Compl., ¶¶1, 6, 7, 40, 69, 73.)
Through its spyware, comScore retrieves a continuous stream of information, no matter
how sensitive, about the activities conducted on an individual’s computer system—all without

1

Spyware is “software that is installed in a computer without the user’s knowledge and transmits
information about the user’s computer activities over the Internet.” See, Merriam-Webster Online
2

comScore refers to the persons it tracks with the spyware as “Panelists.”

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the user’s knowledge. (Compl., ¶ 7.) comScore accomplishes this by “bundling” its spyware with
seemingly innocuous software that consumers download for free on the Internet, such as games
and screensavers. (Compl., ¶¶ 33, 34.) Once downloaded, the spyware records and transmits
virtually all information inputted into a web browser, including websites viewed, search queries,
names, addresses, credit card numbers, usernames/passwords, and Social Security numbers,
among others. (Compl., ¶¶ 7, 37.) The spyware also records and transmits information
concerning all files on the user’s computer, as well as all files located on other computers found
on local networks. (Compl., ¶¶ 49-54.) Adding to the problem, comScore designed its spyware
so that it is difficult for consumers to locate and delete it. (Compl., ¶¶ 49-54.) As a result, scores
of consumers remain unwilling subjects of comScore’s clandestine tracking. (Compl., ¶ 29.)
comScore’s First Motion to Dismiss and Chief Judge Holderman’s Order
comScore has filed two Motions to Dismiss—both of which Judge Holderman, who has
presided over no fewer than 4 expedited hearings in this case—denied sua sponte. On September
28, 2011, comScore filed its first motion to dismiss under Federal Rule of Civil Procedure
12(b)(3). In the alternative, comScore requested that the Court transfer venue under 28 U.S.C. §
1404(a), asserting that this lawsuit should sent to the Eastern District of Virginia’s “Rocket
Docket” for a fast resolution. (Dkt. No. 15, p. 13.)
On October 7, 2011, Chief Judge Holderman denied comScore’s first Motion to Dismiss
in a written opinion. (Dkt. No. 31, attached as Exhibit A). Chief Judge Holderman denied the
Motion to Transfer Venue on the grounds that the issue of whether the Plaintiffs were ever
reasonably apprised of comScore’s terms and conditions (so as to have manifested assent to that
agreement) was at the center of the Parties’ dispute.

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comScore’s Second Motion to Dismiss
Soon after its first Motion to Dismiss was denied, comScore filed a second one—this
time under Rules 12(b)(1) and 12(b)(6). (Dkt. Nos. 39, 42-1.) Plaintiffs filed a Motion to Strike
on the grounds that successive Motions to Dismiss are disfavored. (Dkt. No. 43.) In response to
the Motion to Strike, comScore reiterated its preference for the case to been transferred to the
Eastern District of Virginia’s “Rocket Docket” so that comScore could obtain speedy relief.
(Dkt. No. 45 at 6-7.)
At the presentment hearing, Chief Judge Holderman denied the second motion, again
without requiring a response from the Plaintiffs, finding “[t]here wasn’t merit in [comScore’s]
motion.” (The transcript of the November 15, 2011 hearing is attached hereto as Exhibit B, p.
10:22.) Chief Judge Holderman then asked comScore how long it would take to answer the
Complaint, and comScore responded it would need some time. Judge Holderman responded “I
understand. But you want expedition. You told me about the rocket docket.” (Ex. B, p. 9:7-8)
(emphasis added.) At the close of the hearing, Chief Judge Holderman squarely admonished
comScore to “discuss settlement of this case as promptly as possible in order to evaluate the risks
of going forward with this litigation.” (Id., p. 12:4-11.)
comScore’s promised—yet ever elusive—discovery
Despite promising over three weeks ago to provide relevant software code, comScore has
disclosed nothing to Plaintiffs. Further, comScore has simply ignored Plaintiffs attempts to meet
and confer on what class discovery, if any, comScore would agree to produce in the interim
before a ruling is entered on bifurcation. At this time, and notwithstanding both its earlier pleas
for expediency and Chief Judge Holderman’s promise to deliver prompt jurisprudence,
comScore’s willingness to participate in this litigation has suddenly come to a halt as it seeks

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bifurcation of discovery that all but guarantees the case will experience significant delay.
III.

ARGUMENT
This Court should deny comScore’s about-face effort to delay these proceedings. There is

no good cause for bifurcating discovery between class and merits issues—especially where, as
here, none of comScore’s proffered bases support bifurcation, bifurcation contradicts comScore’s
prior calls for the case to be handled expeditiously, and there is significant disagreement between
the Parties over whether the issues overlap. Likewise, comScore’s promise to provide certain
documents that it claims are sufficient at this point in time is hollow. Plaintiffs need more than
just comScore’s as-yet-undisclosed computer code to prove their claims. Finally, comScore’s
proposed bifurcation isn’t really a request to separate class from merits issues at all—comScore
actually seeks a protective order shielding it from whatever discovery it doesn’t want to answer.
comScore needs to come to the realization that it will have to produce information in this lawsuit
that it would prefer not to.
Ultimately, the question before the Court is bifurcation. Because attempting to separate
discovery in such a manner in this case will undoubtedly slow down and add layers of
complexity to the case, as opposed to speeding it up and making things more efficient, this Court
should reject comScore’s proposed bifurcation—or grant Plaintiffs’ alternative requests for
stipulations regarding the need to produce and relevancy of certain material—as explained
below.
A.

Bifurcation is disfavored where no good cause is shown to support
conducting the case in phases and where the line between class issues and
merits issues is unclear.

The “decision to bifurcate discovery is within the discretion of the district court,” Am.
Nurses’ Assoc. v. State of Illinois, 1986 WL 10382, at *2 (N.D. Ill. Sept. 12, 1986). “Discovery

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on the merits should not normally be stayed pending so-called class discovery, because class
discovery is frequently not distinguishable from merits discovery, and classwide discovery is
often necessary as circumstantial evidence even when the class is denied.” 3 Newberg on Class
Actions § 7:8 (4th ed.); see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n. 12 (1978).
Relevant to this case, bifurcation will be fraught with inefficiency and unnecessary
involvement of the Court to resolve endless motion practice regarding whether discovery should
be characterized as “class” or “merits.” See Eggleston v. Chicago Journeymen Plumbers’ Local
Union, No. 130, U.A., 657 F.2d 890, 895 (7th Cir. 1981) (noting that, because of bifurcation of
discovery, trial courts became embroiled for months in disputes over permissible scope of
“class” discovery); see also Gray v. First Winthrop Corp., 133 F.R.D. 39, 41 (N.D. Cal. 1990)
(characterizing bifurcation as “inefficient” since it would undoubtedly require ongoing court
supervision).
Also relevant here is that when a defendant moves to bifurcate discovery, “[i]n effect,
[the] defendant is seeking a stay of ‘merits’ discovery pending resolution of the class
certification issue, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. Consequently,
defendant bears the burden of establishing ‘good cause’ for that form of protective order.” Hines
v. Overstock,com, Inc., 2010 WL 2775921, at *1 (E.D.N.Y. July 13, 2010). Accordingly,
bifurcation should be avoided where no good cause exists for it and where it may lead to endless
discovery disputes over what is a “class” versus a “merits” issue.
B.

comScore offers no good cause in this case to support bifurcation.

In this case, comScore provides no “good cause” for bifurcation—most likely because
none exists. First, none of comScore’s arguments in support of bifurcation has merit. comScore
argues that bifurcation will save it from having to produce information in case no class is

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certified and that, even if the Court did certify a class, bifurcation would somehow help “narrow
the issues.” comScore further argues that bifurcation is needed because, supposedly, if the Court
were to restrict certification only to Mac3 users, information regarding Windows users would be
irrelevant and, if the Court were to certify a Windows-only class, information relevant to its Mac
users would be irrelevant. None of these arguments have merit.
Second, comScore’s proposed bifurcation flatly contradicts its earlier position in this case
that the matter should move forward expeditiously. Bifurcation here will slow the entire case
down. This is readily apparent from the Parties’ current disagreement regarding the scope of
Plaintiffs’ discovery requests and whether they seek information relevant to merits as opposed to
class certification issues. Both of these arguments, and suggestions for alternative relief in the
form of discovery stipulations, are explained below.
1.

Contrary to comScore’s assertions, bifurcation will not increase
efficiency in this litigation.

comScore first argues that bifurcation is needed in the event the Court declines to certify
the proposed classes (which comScore “expects” will be the case). (Def. Mot. at 6-7.) According
to comScore, individual damages are small, meaning class certification is likely to control
whether the case continues after that point at all. This is not a proper grounds for bifurcation.
comScore’s confidence in its arguments—like its conviction that the case would be dismissed or
transferred to Virginia—is misplaced. Further, and if anything, given that class actions are meant
for cases where individual damages are relatively small, see Murray v. GMAC Mortg. Corp., 434
F.3d 948, 953 (7th Cir. 2006) (Rule 23 “was designed for situations such as this, in which the
potential recovery is too slight to support individual suits, but injury is substantial in the
3

“Mac” and “Windows” in this context refer generally to Apple’s Macintosh operating system and
the P.C. Windows platform from Microsoft.

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aggregate”), comScore’s position would create a rule favoring bifurcation in nearly all class
action cases. No such rule or presumption exists. Accordingly, that comScore believes it may
defeat Plaintiffs’ Motion for Class Certification cannot absolve the company of its duty to
participate meaningfully in discovery.
comScore next argues that class certification will help narrow the issues in light of
Plaintiffs’ expansive discovery. (Def. Mot. at 7.) comScore argues that the Court could certify a
class of only Mac users, rendering Windows-related information irrelevant. Or, the Court could
certify a Windows-only class, placing discovery related to Mac users outside the scope of the
case.4 Neither argument is persuasive. Again, that the Court may ultimately deny a Motion for
Class Certification is not grounds for denying discovery related to class certification issues.
Tellingly, comScore has no answer for what happens in the event the Court certifies the classes
sought. Apparently, in such a case comScore is comfortable that any time wasted by having not
conducted discovery simply be lost in the name of its piecemeal strategy.
Accordingly, bifurcation will not lead to increased efficiency.
2.

comScore’s proposed bifurcation would delay these proceedings in
contravention of its own expressed desire for expediency.

comScore’s motion to bifurcate discovery contradicts its earlier position that this case
should be litigated as quickly as possible. comScore urged Chief Judge Holderman to transfer
this lawsuit to the Eastern District of Virginia citing its efficient and expeditious docket: “the
4

It should be noted that in making these arguments, comScore introduces several “facts” which
this Court need not accept as true. First, comScore asserts that certain software problems identified in the
pleadings were present only with Mac users. Second, comScore states that it never commercialized the
Mac users, supposedly suggesting they have no damages. Third, comScore asserts that only information
from Windows users comprise its database. Fourth, comScore contends that its third-party partners—
which the Plaintiffs have called “bundlers”—do not bundle; but rather, they offer comScore’s software as
a separate download with their own products. None of these so-called facts—which are more appropriate
for discovery, not for motions seeking to avoid discovery—should influence this Court’s bifurcation
analysis, except insofar as it demonstrates comScore cannot be unilaterally trusted to provide whatever
information it fancies.

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median months from filing to trial in the Northern District of Illinois is 28.2 months. In
comparison … the median months from filing to trial in the Eastern District of Virginia is 9.3
months.” (Dkt. No. 15, p. 13.) Chief Judge Holderman noted that comScore had “extol[led] the
virtues of the rocket docket in Virginia,” (Ex. B, p. 12:4-5), and that comScore wants
“expedition.” (Ex. B, p. 9:7-8.) On that basis, in an effort to accelerate litigation, Chief Judge
Holderman set an expedited schedule so that the Parties could quickly “move forward with the
litigation.” (Ex. B, p. 10:1-3.)
comScore cannot now pull a 180 degree turn and propose a discovery plan designed to
slow the case down simply because it banked on avoiding the discovery process. To be certain,
that is precisely what would occur with comScore’s plan here. As explained above, bifurcation is
disfavored where the case will become consumed by discovery disputes over whether certain
matter relates to class certification as opposed to the merits. These disputes occur because often
“[d]iscovery relating to class certification is closely enmeshed with merits discovery, and in fact
cannot be meaningfully developed without inquiry into the basic issues of the litigation.” Gray,
133 F.R.D. at 41; see also In re Hamilton Bancorp, Inc. Sec. Litig., No. 01-CV-0156, 2002 WL
463314, at *1 (S.D. Fla. Jan. 14, 2002) (when class and merits discovery are tightly intertwined,
parties are likely to engage in “endless disputes over what is ‘merit’ verses ‘class’ discovery.”);
Barnhart v. Safeway Stores, Inc., No. 92-0803, 1992 WL 443561, at *3 (E.D. Cal. Dec. 14,
1992). As a result, bifurcating discovery often runs counter to the objective of the Federal Rules
of Civil Procedure to achieve a “just, speedy, and inexpensive determination of every action.”
Fed. R. Civ. P. 1. See also Barnhart, 1992 WL 443561, at *3.
In this case, Plaintiffs dispute several, if not all, of comScore’s assessments of various
discovery requests as being related to class certification as opposed to merits issues. Moreover,

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Plaintiffs contest comScore’s other objections, such as that unquestionably relevant material is
too much trouble for comScore to produce. The present disputes are explained below:
a.

Discovery relevant to the information that comScore sells to its
customers.

comScore opposes answering Requests to Produce Nos. 29 and 30 as well as
Interrogatory Nos. 10 and 11 on the basis that Plaintiffs mostly challenge issues that were present
in comScore’s Mac software and comScore never “commercialized” the Mac users’ information.
(Def. Mot. at 11.) This argument misunderstands both class actions and Plaintiffs’ claims. The
discovery sought is directly relevant to class certification issues including whether the class
members suffered damages and, if so, whether such damages predominate (such that certification
is most appropriately sought under Rule 23(b)(3)) or if they are incidental (and amenable to
certification under Rule 23(b)(2)). See In re Sulfuric Acid Antitrust Litig., 2011 WL 6155845, at
*1 (N.D. Ill. Dec. 12, 2011) (common issues predominate when the plaintiffs “establish that they
have realistic methodologies for establishing damages on a classwide basis”) (internal quotations
omitted).
comScore also argues that “discovery focused on comScore’s customers has nothing to
do with whether comScore Panelists share common claims.” (Def. Mot. at 12.) This is simply
untrue. The challenged discovery seeks to identify the types of personal information that
comScore sold to its customers, which bears directly on the issue of what personal information
comScore collected from Plaintiffs and the Class and whether it obtained consent--common
issues of law and fact that are common to every class member. The challenged discovery is also
relevant to show that comScore profits from selling Plaintiffs’ and the Class’ personal
information, a common issue of fact that cuts to the heart of their unjust enrichment claim.
Tellingly, comScore offers no explanation as to why this discovery supposedly goes to the
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merits, rather than class certification. Ultimately, the point is that the Parties strongly disagree on
this issue, signaling that bifurcation will slow down this case.
b.

Discovery relevant to Third-Party Bundling Partners.

comScore’s motion glosses over a critical fact—this lawsuit is limited to consumers who
downloaded comScore’s spyware from one of its third-party “bundling” partners. As such, it is
the third party partners—not comScore—that have knowledge and information relating to what
terms, if any, they displayed to Plaintiffs and the Class members before comScore’s spyware was
downloaded. This is important. To succeed on their Stored Communications Act (“SCA”), 18
U.S.C. §§ 2701, et seq., Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §§ 2510,
et seq., and Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. §§ 1030, et seq. claims,
Plaintiffs will have to show that comScore’s spyware either accessed certain information on their
computers without authorization, or exceeded the authorization that was given (i.e., exceeded the
scope of the terms of service displayed by comScore’s third party bundling partners). The
identities of the bundling partners, the information they possess, and their relationship with
comScore are thus highly relevant to both merits and class certification issues.
Nevertheless, comScore opposes producing contracts or related documents, even though
the agreements could show that comScore made its bundling partners agree on specific consent
protocols, that comScore knew its bundling partners had insufficient disclosures, or that
comScore neglected to maintain oversight of its partners consent procedures—all of which are
highly relevant for class certification purposes.
c.

comScore’s internal emails.

comScore also opposes providing any internal emails regarding the design and
deployment of its software and terms of service agreements. Such emails could show changes to

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the terms of service, whether notice of such changes were provided, whether the disclosures were
appropriate, comScore’s knowledge of any disclosure issues affecting its bundling partners, the
method by which comScore makes personal information available, and other issues. Moreover,
comScore ignores that intent to access unauthorized information is a required element for
Plaintiffs’ statutory claims under the SCA, ECPA, and CFAA. See Shurland v. Bacci Cafe &
Pizzeria on Ogden, Inc., 271 F.R.D. 139, 147 (N.D. Ill. 2010) (predominance requirement
satisfied because “the question of whether Defendant acted willfully is central both to Plaintiff's
individual claim and to the claims of the class as a whole.”)
d.

Trees for the Future

comScore conclusively asserts that it has “explained above” its relationship with Tress
for the Future. No explanation is present in its Motion, so Plaintiffs are left to guess as to what
comScore means by this. Moreover, Plaintiffs disagree with comScore’s general assertion that
such information is irrelevant to class certification issues. comScore has repeatedly indicated that
consumers “volunteer” to having its spyware placed on their computers “in exchange” for having
trees planted through its Trees for the Future program. (Dkt. No. 41-1, p. 11.) If comScore plans
to defend the existence of a contract supposedly entered into by Plaintiffs whereby these actions
qualify as valid consideration, then Plaintiffs’ are entitled to discovery to test whether comScore
performed its obligations under the purported contract.
e.

Termination of the Mac Panel.

Plaintiffs now understand that comScore has “terminated” the Mac Panel. comScore
asserts that any information regarding the termination is not relevant to class certification. This
argument is false. Whether and to what extent the Mac Panel has been terminated, if at all,
impacts the injunctive relief to be sought via any Rule 23(b)(2) class. This is especially so given

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the requirement that injunctive relief apply to all the class members. Accordingly, understanding
which of comScore’s practices require reformation is unmistakably relevant to class certification.
Furthermore, the design of the Mac Panel is relevant to evaluating whether, pursuant to Rule
23(a)(2), Mac Panel users’ were all affected in a common, uniform way.
Again, that comScore disagrees only serves to highlight the fact that its plan for
bifurcation will stifle this proceeding.
f.

comScore’s other objections

comScore’s final objection is to Requests to Produce 1, 39, 44, and 45 as well as
Interrogatory Nos. 2, 3, 4, 5, 15 , 20, and 21 on the grounds that these requests also seek
information not relevant to class certification.5 (Def. Mot. 15.) This is simply not true. For
example, comScore released a public response to this litigation in which it claimed:
comScore prides itself on its privacy and recruitment practices, which have been
rigorously reviewed in annual privacy audits conducted by independent third
party auditors for the last 10+ years.
Request 44 asks for the documents upon which statements like these were based. As comScore’s
privacy practices, and their application to the classes as a whole, are at the center of the class
certification issue, comScore’s assertion that such information should be safeguarded from
disclosure defies reason. Again, that the Parties disagree on this point is the key issue—it shows
comScore’s ideas for bifurcation are unrealistic and will fail to appreciably expedite the case.
Accordingly, comScore’s bifurcation proposal will—despite its prior protests
before Chief Judge Holderman that it needed a “rocket docket”—delay this case. It is
premised on the false presumption that no discovery should issue where it might
ultimately prevail on certification. Also, it is clear the Parties will battle endlessly over
5

Plaintiffs agree with comScore that experts may be disclosed consistent with the statements set
forth in the Parties’ Form 52 submission.

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whether specific discovery requests are relevant to class certification or merits issues.
Bifurcation should not issue under such circumstances.
C.

comScore’s agreement to provide source code for the Windows and Mac
platforms at some point in the future along with limited other information
is insufficient for discovery purposes.
a.

The Source Code

The source code for both the Mac and Windows platforms are not enough. comScore
claims that Plaintiffs and the Classes authorized comScore to collect, transmit, and sell
information collected from their computers to third parties. Plaintiffs claim that they did not
provide such authorization and that, if they did, comScore knowingly exceeded the scope of such
authorization. Although comScore agrees that one of the main issues on class certification will
be “whether [its] software impacted the putative class members in a common manner,” (Def.
Mot. at 9), and recognizes that discovery relating to its software’s functionality “goes to the core
issues of commonality and predominance on class certification” (Def. Mot. at 10), comScore
refuses to respond to discovery on these issues—not even with respect to what the software
collects and transmits from the consumers’ computers. Instead, comScore intends to simply
produce the software’s source code and tell Plaintiffs to “go fish” through extensive and highly
sophisticated code.
Denying Plaintiffs the opportunity to issue written discovery and take depositions on
issues related to the functionality of comScore’s software prejudices the Plaintiffs and will
impede the discovery process. Without the ability to conduct discovery on the software’s
functionality, Plaintiffs will be unable to determine whether the software collected and
transmitted personal information that exceeds the scope of authorization allowed by the terms
that Plaintiffs and the Classes supposedly consented to (which, as discussed throughout this

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brief, comScore also seeks to have excluded from its first phase of discovery).
b.

Consent materials

Recognizing that consent is a crucial element of this lawsuit, comScore has apparently
“committed” to produce “the source code for its RK Verify software … as well as additional
materials sufficient to demonstrate the methods for presenting comScore’s disclosures and
obtaining consent.” (Def. Mot. at 12) (emphasis added.) comScore’s “commitment,” however,
misses the point—the RK Verify software and materials relating to the disclosure methods have
nothing to do with what specific terms were displayed to Plaintiffs and the Classes by
comScore’s third party bundling partners. Further, the RK Verify software will only identify
whether or not a consumer pressed the “accept” button in the dialogue box—it does not,
however, identify what content, if any, was displayed to the consumer in the dialogue box.
As a result, comScore’s proposed disclosures do not obviate the need for other discovery.
D.

Proposals for streamlining discovery

Given comScore’s concerns about the burdens and expenses of producing discovery,
Plaintiffs will agree to withdraw Interrogatory Nos. 16 and 17, and Document Request Nos. 2,
27, and 28 in exchange for a stipulation from comScore that its spyware collected and
transmitted personal information from all class members in the same, or substantially the same
manner. Similarly, Plaintiffs will agree to withdraw their discovery relating to communications
between comScore’s employees in exchange for a stipulation from comScore that the questions
of whether comScore intentionally exceeded the scope of the authorization given by Plaintiffs
and the Classes is subject to the same, or substantially the same, common body of proof.
CONCLUSION
For these reasons, the Court should deny comScore’s motion to bifurcate discovery.

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Dated January 19, 2012

RESPECTFULLY SUBMITTED,
MIKE HARRIS AND JEFF DUNSTAN,
INDIVIDUALLY AND ON BEHALF OF A CLASS
OF SIMILARLY SITUATED INDIVIDUALS,

By:/s/ Ari J. Scharg
One of Plaintiffs’ Attorneys
Jay Edelson
Ari J. Scharg
Chandler R. Givens
EDELSON MCGUIRE, LLC
350 North LaSalle, Suite 1300
Chicago, Illinois 60654
Tel: [phone]
[e-mail]
[e-mail]
[e-mail]

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CERTIFICATE OF SERVICE
I, Ari J. Scharg, an attorney, certify that on January 19, 2012, I served the above and
foregoing Plaintiffs’ Response in Opposition to Defendant comScore, Inc.’s Motion to
Bifurcate Discovery, by causing true and accurate copies of such paper to be filed and
transmitted to all counsel of record via the Court’s CM/ECF electronic filing system, on this the
19th day of January, 2012.

/s/ Ari J. Scharg

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