LegalZoom.com Inc v. Rocket Lawyer Incorporated

Filing 126

EX PARTE APPLICATION for Order for ORDER SHORTENING TIME ON MOTION TO SUPPLEMENT THE RECORD SUPPORTING LEGALZOOM'S OPPOSITION TO ROCKET LAWYER'S MOTION FOR SUMMARY JUDGMENT, OR (2) IN THE ALTERNATIVE, TO CONTINUE THE HEARING ON THE PENDING CROSS MOTIONS FOR SUMMARY JUDGMENT filed by Plaintiff LegalZoom.com Inc. (Attachments: # 1 LegalZoom.com, Inc.'s Motion to Supplement Factual Record, # 2 Declaration of Aaron Allan, # 3 Declaration of Barak Vaughn, # 4 Proposed Order Granting Ex Parte Application, # 5 Proposed Order Granting LegalZoom's Motion to Supplement Factual Record)(Heather, Fred)

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PATRICIA L. GLASER -State Bar No. 55668
pglaser(a~glaserweil.com
FRED I~. HEATHER -State Bar No. 110650
fheather glaserweil.com
AARON .ALLAN -State Bar No. 144406
aallan glaserweil.com
GLAS~R WEIL FINK HOWARD
AVCHEN & SHAPIRO LLP
10250 Constellation Boulevard, 19th Floor
Los Angeles, California 90067
Telephone: [phone]
Facsimile: 310)556-2920
Attorneys for Plaintiff
LegalZoom.com, Inc.

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CENTRAL DISTRICT OF CALIFORNIA

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UNITED STATES DISTRICT COURT

WESTERN DIVISION

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LEGALZOOM.COM,INC., a Delaware
corporation,
Plaintiff,

CASE NO.: CV 12-9942-GAF(AGRx)
Hon. Gary A. Feess
Courtroom: 740

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ROCKET LAWYER INCORPORATED,
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Defendant.

LEGALZOOM.COM,INC'S EX
PARTE APPLICATION FOR (1)
ORDER SHORTENING TIME ON
MOTION TO SUPPLEMENT THE
RECORD SUPPORTING
LEGALZOOM'S OPPOSITION TO
ROCKET LAWYER'S MOTION
FOR SUMMARY JUDGMENT,OR
(2)IN THE ALTERNATIVE,TO
CONTINUE THE HEARING ON
THE PENDING CROSS MOTIONS
FOR SUMMARY JUDGMENT

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Concurrently filed herewith:

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(1) Notice of Motion and Motion for
Leave to Su element the Record
In Support ~f LegalZoom's
Opposition to Rocket
Lawyer's Motion for Summary
Jud ment
2 Declaration of Barak Vaugtin
3 Declaration of Aaron P. Allan
4 [Proposed] Order

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TBD
Date:
TBD
Time:
Courtroom: 740
LEGALZOOM.COM,INC.'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME
ON MOTION TO SUPPLEMENT THE RECORD

933119

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that pursuant to Local Rule 7-19, Plaintiff,
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LegalZoom.com, Inc.("LegalZoom") hereby applies to the Court ex pane,for

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expedited consideration of LegalZoom's concurrently filed motion to supplement the

s record ("Motion") in support of LegalZoom's Opposition to Defendant Rocket
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Lawyer Incorporated's Motion for Summary Judgment(the "MSJ"), or in the
alternative, to continue the hearing on the pending cross motions for summary

s judgment to a date when the Motion may be heard.
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Good cause exists for granting this application because the material that

~o LegalZoom wishes to place into the record before the Court is directly relevant to any
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decision on Rocket Lawyer's pending MSJ (set for hearing on October 6, 2014) and

~2 should be considered by the Court in connection with any hearing and before making
i~ any ruling on that MSJ. In addition, the subject material was produced by Rocket
~ 4 Lawyer after the filing of the MSJ, together with roughly 15,000 other documents,
is and was therefore not discovered by LegalZoom (despite reasonable diligence) at the
ib time that LegalZoom's opposition to the MSJ was filed. Further, the subject material
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was addressed in a deposition on September 23, 2014, and will be further addressed in

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depositions scheduled for October 3 and 9, 2014. Finally, hearing the Motion on a

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regular briefing schedule would cause LegalZoom substantial harm because the

Zo Motion would be heard after the current October 6, 2014 MSJ hearing date, and the
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evidence being presented by the Motion is directly relevant to whether Rocket

22 Lawyer's advertisements deceived consumers, or had a tendency to deceive.
APPLICATION

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Rocket Lawyer Post-MSJ Production of Relevant Documents.

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In moving for summary judgment against LegalZoom's false advertising and

?~ unfair competition claims, Rocket Lawyer represented to the Court that:
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"[R]ocket Lawyer has since conducted searches of documents in its

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possession, produced over 22,000 documents in response to
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LEGALZOOM.COM,INC.'S EXPARTE APPLICATION FOR ORDER SHORTENING TIME
ON MOTION TO SUPPLEMENT THE RECORD

933119

LegalZoom's discovery requests (including at least 10 spreadsheets of
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generated ad and conversion data), and conducted a comprehensive

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consumer survey. SSUF at 5-9, 92-93. These efforts have resulted in a

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record of undisputed facts demonstrating that Rocket Lawyer's

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advertisements are truthful and have no tendency to deceive."

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MSJ at 14, fn. 8.(emphasis added).
The MSJ was filed on June 30, 2014. After filing the MSJ, Rocket Lawyer

s produced (on July 3, July 11, and July 18, 2014) approximately 15,000 documents
responsive to LegalZoom's discovery requests, many of which were comprised of a
io ,significant number of pages. These documents were produced in response to requests
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originally made, more than a year earlier, on March 12, 2013. Because LegalZoom's

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opposition to the Motion had to be filed by July 21, 2014, LegalZoom did not have

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adequate time to review all 15,000 documents by the time its opposition was filed.

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2.

After Filing Opposition to the MSJ, Le~alZoom Discovered that Rocket

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Lawyer Had Produced Internal Surveys and Communications Relevant

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to the MSJ, But Had Failed to Disclose Those to the Court.

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Based on the documents produced after the MSJ was filed, Rocket Lawyer's
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sweeping representations that there is an unblemished record supporting Rocket

~y Lawyer's Motion are demonstrably false. Internal emails and market research
20 developed by Rocket Lawyer unequivocally demonstrate that Rocket Lawyer knew
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but failed to disclose to the Court that there were documents in the record

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showing its advertisements had a tendency to mislead and/or deceive consumers.

r It therefore appears that Rocket Lawyer and its counsel knew when they filed the MSJ
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that the assertions in the MSJ and supporting declarations, that there is a record of

zs undisputed facts confirming that its advertisements have no tendency to deceive, were
26 untrue and Rocket Lawyer should never have brought forth its Motion with such
?~ knowledge and without full and candid disclosure. This evidence not only shows
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internal surveys which compete with the survey evidence produced by Rocket
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LEGALZOOM.COM,INC.'S EX PARTS APPLICATION FOR ORDER SHORTENING TIME
ON MOT10N TO SUPPLEMENT THE RECORD

933119

Lawyer's paid expert, but it also shows that Rocket Lawyer continued to run
advertisements in spite of these internal surveys, which shows an ongoing intent to
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deceive consumers, including not altering its advertisements after five separate

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market research sessions. Because an intent to deceive consumers would create a

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presumption of consumer deception for the jury, such evidence has the potential to, at

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a minimum, shift the burden of proof to Rocket Lawyer to demonstrate an absence of
deception through surveys and market research.

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3.

Le~alZoom Acted Dili e~ntly in Bringin~~This Motion After First
Com~letinp Mediation and Providing Rocket Lawyer with Numerous
Opportunities to Correct the Record.

LegalZoom's first attempt to address Rocket Lawyer's failure to present a
complete record on its MSJ was on September 2, 2014, which was the day prior to a

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mediation that the parties attended on September 3, 2014. Aaron P. Allan, counsel for

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LegalZoom, placed a telephone call to Michael T. Jones, counsel for Rocket Lawyer,

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and conferred about the subject material and whether Rocket Lawyer's conduct in
ib failing to disclose the internal surveys to the Court with its MSJ amounted to a

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violation of Rule 11. Mr. Jones disagreed with LegalZoom's views on the issues, and
~g LegalZoom's Rule 11 motion was served on Rocket Lawyer's counsel that afternoon.
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Due to the "safe harbor" provision of Rule 11, the motion could not be filed any

20 earlier than September 23, 2014. That same day, September 23, 2014, a deposition of
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Alisa Weiner proceeded in San Francisco, and the subject material was a subject of

?? questioning during the deposition. Additional depositions of Rocket Lawyer
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witnesses will proceed on October 1, 3, and 9, at which time further questioning about

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the subject material will take place.

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Further attempts to meet and confer about correcting the record on Rocket

26 Lawyer's MSJ took place on September 24 and 25. During those conversations,
2~ counsel for LegalZoom offered to avoid filing the previously served Rule 11 motion
z~ if Rocket Lawyer would simply agree to not oppose a motion to place the subject
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LEGALZOOM.COM,INC.'S EX PARTS APPLICATION FOR ORDER SHORTENING TIME
ON MOTION TO SUPPLEMENT THE RECORD
933119

material before the Court. Rocket Lawyer's counsel refused.
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Granting This Application Will Cause No Prejudice.

The pending cross-motions for summary judgment are scheduled to be heard on
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October 6, 2014. The subject material is not extensive and can be quickly reviewed

s by the Court and discussed by the parties during oral argument. While counsel for
Rocket Lawyer has sought to suppress this evidence from ever seeing the light of a
courtroom, the parties have had ample time to confer about their respective positions
a and should be well prepared to argue how and whether the subject material has a
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bearing on the pending MSJ. If Rocket Lawyer requires additional time to oppose the

~o Motion, then LegalZoom proposes, in the alternative, that the hearing on the pending
i~ cross motions for summary judgment be slightly delayed to allow for that written
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,opposition to be filed on regular notice.

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Rocket Lawyer, during a telephone conference and follow up email on September 29,

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2014. The name, address, and telephone number of counsel for defendant is as

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LegalZoom gave notice of this application to Michael T. Jones, counsel for

Michael T. Jones, Esq.
GOODWIN PROCTER LLP
135 Commonwealth Drive
iy Menlo Park, CA 94025
[phone]
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~ DATED: September 29, 2014

Respectfully submitted,

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GLASER WEIL FINK
HOWARD AVCHEN & SHAPIRO r,LP
By: /s/ Fred Heather
PATRICIA L. GLASER
FRED D. HEATHER
AARON P. ALLAN
Attorneys for Plaintiff
LegalZoom.com, Inc.

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LEGALZOOM.COM,INC.'S EXPARTS APPLICATION FOR ORDER SHORTENING TIME
ON MOTION TO SUPPLEMENT THE RECORD
933119