LegalZoom.com Inc v. Rocket Lawyer Incorporated

Filing 137

ROCKET LAWYER INCORPORATED'S REDACTED OPPOSITION re: APPLICATION for Order for Granting Leave to File Documents Under Seal filed by plaintiff LegalZoom.com, Inc. Plaintiff LegalZoom.com, Inc. will and hereby does apply for an order permitting them to file under seal the following: 1) Unredacted Notic 125 filed by Defendant Rocket Lawyer Incorporated. (Attachments: # 1 DECLARATION OF MICHAEL JONES IN SUPPORT OF ROCKET LAWYER'S OPPOSITION TO PLAINTIFF'S MOTION TO SUPPLEMENT THE RECORD)(Jones, Michael)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

Forrest A. Hainline III (SBN 64166)
[e-mail]
Hong-An Vu (SBN 266268)
[e-mail]
GOODWIN PROCTER LLP
Three Embarcadero Center
24th Floor
San Francisco, California 94111
Tel.: [phone]
Fax.: [phone]
Michael T. Jones (SBN 290660)
[e-mail]
GOODWIN PROCTER LLP
135 Commonwealth Drive
Menlo Park, California 94025-1105
Tel.: [phone]
Fax.: [phone]
Brian W. Cook (Pro Hac Vice)
[e-mail]
GOODWIN PROCTER LLP
53 State Street
Boston, MA 02109-2802
Tel.: [phone]
Fax.: [phone]
Attorneys for Defendant
ROCKET LAWYER INCORPORATED

16

UNITED STATES DISTRICT COURT

17
18
19
20
21
22
23
24
25
26

CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
LEGALZOOM.COM, INC., a Delaware Case No. 2:12-cv-09942-GAF-AGR
corporation,
DECLARATION OF MICHAEL
Plaintiff,
JONES IN SUPPORT OF ROCKET
LAWYER’S OPPOSITION TO
v.
PLAINTIFF’S MOTION TO
SUPPLEMENT THE RECORD
ROCKET LAWYER
INCORPORATED, a Delaware
Date:
October 27, 2014
corporation,
Time:
9:30 AM
Judge:
Judge Gary A. Feess
Defendant.
Courtroom: 740
255 East Temple Street
Los Angeles, CA 90012
Action Filed: November 20, 2012

27
28

ACTIVE/78442240.3

DECLARATION OF MICHAEL T. JONES

1
2

I, Michael T. Jones, declare as follows:

3

1.

I am a partner at Goodwin Procter LLP, counsel of record for defendant

4

and counterclaimant Rocket Lawyer Incorporated (“Rocket Lawyer”). I submit this

5

declaration in support of Rocket Lawyer’s Opposition to LegalZoom’s Motion to

6

Supplement the Record (the “Motion”). I am over the age of 18 years. Unless

7

otherwise indicated, I have personal knowledge of the matters stated herein and, if

8

called upon to do so, I could and would competently testify to them under oath.

9

2.

Attached hereto as Exhibit 1 is a true and correct copy of notes taken

10

as part of the April 2010 usability study conducted by Dr. Elizabeth Ferguson,

11

Ph.D., beginning Bates Number RLI0039820 and produced to LegalZoom on July

12

11, 2014.

13

3.

Rocket Lawyer has regularly produced documents to LegalZoom every

14

few weeks since March 2014. These productions slowed somewhat while expert

15

discovery was conducted in April, May, and June, but resumed until production was

16

complete on July 18, 2014.

17

4.

In total, Rocket Lawyer has produced over 38,000 documents,

18

including significant data pulls relating to millions of its advertisements, in response

19

to approximately 89 document requests propounded by LegalZoom. Rocket

20

Lawyer’s productions included several data pulls of information relating to Rocket

21

Lawyer’s advertisements and their performance.

22
23
24
25
26

5.

On April 4, 2014, LegalZoom sought ex parte relief from the court’s

then scheduling order so that it could complete fact and expert discovery.
6.

After the Court granted LegalZoom ex parte relief on April 15, 2014,

LegalZoom did not produce any additional documents until June 18, 2014.
7.

Counsel for LegalZoom did not even discuss fact discovery with

27

Rocket Lawyer again until June 18, 2014, when LegalZoom sent a letter asking for

28

information Rocket Lawyer already produced, demonstrating that LegalZoom had
-1ACTIVE/78442240.3

1

not reviewed all the documents in its possession produced by Rocket Lawyer and

2

that counsel newly added to the case did not review the discovery responses and

3

correspondence in this case.

4
5
6

8.

Counsel for LegalZoom did not begin discussing depositions of Rocket

Lawyer’s fact witnesses until July 18, 2014.
9.

Given how late LegalZoom sought to depose Rocket Lawyer’s

7

witnesses and mutual scheduling difficulties, counsel for LegalZoom and counsel

8

for Rocket Lawyer entered into a stipulation to allow depositions to be held after the

9

discovery cut-off, including dates after the August 18, 2014 summary judgment

10
11

hearing date. See ECF No. 85.
10.

On August 5, 2014, LegalZoom and Rocket Lawyer entered into

12

another scheduling stipulation to allow depositions to be taken after a hearing on the

13

parties’ motions for summary judgment. See ECF No. 104.

14
15

11.

Counsel for LegalZoom further affirmed this agreement at the August

12, 2014 status conference with the Court.

16

12.

LegalZoom never moved to compel production from Rocket Lawyer.

17

13.

To date, LegalZoom has produced a total of just over 2,000 documents

18
19

in discovery.
14.

LegalZoom’s last sets of productions took place on July 16, 22, and 28,

20

2014, with the July 28 production occurring on the same day that Rocket Lawyer

21

was required to oppose LegalZoom’s motion for summary judgment.

22

15.

By the time the parties moved for summary judgment, Rocket Lawyer

23

had produced over 22,000 documents in nine productions and LegalZoom had

24

produced about 1,000 documents over four productions. The documents with which

25

LegalZoom seeks to supplement the summary judgment record were produced on

26

July 3 and 11, 2014.

27
28

16.

LegalZoom served Rocket Lawyer with a copy of its Rule 11 Motion

on September 2, 2014.
-2ACTIVE/78442240.3

1
2
3

17.

Attached hereto as Exhibit 2 is a true and correct copy of a letter I sent

to counsel for LegalZoom on September 23, 2014.
18.

On September 24, 2014, I telephonically met and conferred with

4

counsel for LegalZoom regarding its Motion for Rule 11 sanctions. In the course of

5

that conversation, counsel threatened that LegalZoom would file its Motion unless

6

Rocket Lawyer allowed LegalZoom to supplement the summary judgment record

7

with the Studies.

8

19.

9
10

Attached hereto as Exhibit 3 is a true and correct copy of a letter I

received from counsel for LegalZoom on September 25, 2014.
20.

On September 25, 2014, I again telephonically met and conferred with

11

counsel for LegalZoom, who again urged Rocket Lawyer to allow LegalZoom to

12

supplement the summary judgment record without opposition in order to avoid

13

LegalZoom’s Rule 11 Motion. Rocket Lawyer refused to waive its right to oppose

14

an untimely motion to supplement the record to avoid a threat of sanctions.

15

21.

On September 29, 2014, LegalZoom filed its ex parte Motion and its

16

Motion to Supplement the Factual Record. LegalZoom failed to serve unredacted

17

copies of redacted and manually-filed documents related to these motions until

18

October 1, 2014, and then only after Rocket Lawyer asked for them.

19

22.

The attorneys now managing this case for LegalZoom were not

20

involved in any of the discovery discussions, which were primarily handled by two

21

other attorneys. During a meet and confer on June 20, 2014, one of the attorneys

22

now managing the case asked me when the discovery cut-off was, and I informed

23

him that it was August 12.

24

23.

LegalZoom continues to refuse to produce a witness in response to

25

several topics in Rocket Lawyer’s 30(b)(6) deposition notice, despite the fact that at

26

least two of those topics are either identical to or closely modeled after topics in

27

LegalZoom’s own 30(b)(6) deposition notice. Attached hereto as Exhibit 4 is a true

28
-3ACTIVE/78442240.3

1

and correct copy of an email from counsel for Rocket Lawyer to counsel for

2

LegalZoom, dated October 3, 2014.

3

I declare under penalty of perjury under the laws of the State of California

4

that the foregoing is true and correct. Executed on this 6th day of October, 2014.

5
6

/s/ Michael T. Jones
MICHAEL T. JONES

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4ACTIVE/78442240.3

EXHIBIT 1

[CONFIDENTIAL - LODGED
UNDER SEAL]

EXHIBIT 1

EXHIBIT 2

EXHIBIT 2 -41-

EXHIBIT 2 -42-

EXHIBIT 2 -43-

EXHIBIT 3

•

aser e~

10250 Constellation Blvd.
19th Floor
Los Angeles, CA 90067
310.553.3000 TEL
310.556.2920 FAX
Aaron P. Allan

September 25, 2014

VIA EMAIL

Direct Dial
310.282.6279
Direct Fax
310.785.3579
Email
[e-mail]

Michael T. Jones
([e-mail])
Goodwin Procter LLP
135 Commonwealth Drive
Menlo Park, CA 94025

Re:

LegalZoom.com,Inc. v. Rocket Lawyer Incorporated — LegalZoom's Rule 11
Motion

Dear Michael,
Your letter sent yesterday afternoon purports to recount a position that we took on behalf of
LegalZoom during a telephonic meeting and conference yesterday morning concerning
LegalZoom's Rule 11 motion which was originally served, but not filed, on September 2, 2014
(the "Rule 11 Motion"). Because your letter is mistaken about LegalZoom's position, I am
writing to correct the record.
Prior to our telephone call, you had expressed Rocket Lawyer's position, in writing, that it did
not view the Rule 11 Motion as having merit because the documents that Rocket Lawyer chose
not to reveal to the Court would not (in your view) have created any triable issue of fact as to
Rocket Lawyer's pending motion for summary judgment. In response to that position, and in an
attempt to meet and confer to avoid filing the Rule 11 Motion, we offered to avoid seeking
sanctions if Rocket Lawyer would essentially agree to place the disputed documents before the
Court. Our reasoning, as we explained during the call, was that if you are so confident that the
disputed documents would not convince the Court that a triable issue precludes Rocket Lawyer's
motion for summary judgment, then let's simply put those documents before the Court and let
the Court decide. We offered to desist from filing the Rule 11 Motion if you would agree to
allow us to put those documents before the Court without objection. You indicated that you
were not inclined to do that. We then suggested that the parties further consider the issue over
night, and we set up another telephone call for tomorrow at 10:00 a.m. to further discuss the
issue.
We are therefore surprised at both the tone and substance of your letter, which purports to
describe a conversation very different from the one which Fred and I participated in with you
X11 MENITAS LAW FIRMS WORLDWIDE

933304.1

EXHIBIT 3 -44-

Michael T. Jones
Goodwin Procter LLP
September 25, 2014
Page 2
yesterday morning. We made no threats, and in fact offered to reconsider the entire topic over
night. Moreover, your citation to Rule 5-100 is somewhat disingenuous given Rocket Lawyer's
previously served motion for sanctions which not only was intended to seek a litigation
advantage, but which in fact resulted in Rocket Lawyer obtaining the litigation advantage of
LegalZoom withdrawing a single ground upon which it had relied in moving for partial summary
judgment.
We are still considering the most appropriate way to proceed, given (a) Rocket Lawyer's attempt
to bury these extremely relevant survey documents within a last minute production of over
15,000 documents made after Rocket Lawyer filed its summary judgment motion,(b)the
subsequent passage of time spent by the parties to mediate, and (c)the additional passage of
twenty-one days after we served the Rule 11 Motion. We still believe that judicial economy and
the interests of the Court and the parties would be best served by simply agreeing to place these
internal Rocket Lawyer survey documents before the Court without objection. But if the only
solution is motion practice, then you are leaving us with no choice. We look forward to further
discussions today.

Sincerely yours,

AARON P. ALLAN
of GLASER WEIL FINK HOWARD AVCHEN & SHAPIRO LLP

APA:cc

933304.1

EXHIBIT 3 -45-

EXHIBIT 4

Cook, Brian W
From:
Sent:
To:
Cc:
Subject:

Cook, Brian W
Friday, October 03, 2014 10:39 AM
[e-mail]; [e-mail]; [e-mail]
Hainline, Forrest A; Jones, Michael T; Vu, Hong-An
LZ v. RLI - RLI's 30(b)(6) Notice

Aaron: 

We are in receipt of your revised objections and designations to our 30(b)(6) deposition notice.  Although you continue 
to refuse to designate a witness for many topics relevant to this dispute, we will proceed with the 30(b)(6) depositions, 
reserving all rights to seek relief from the Court. 

We also note that our Topic Numbers 10 and 11, two of those for which you have refused to produce a witness on the 
grounds that it is irrelevant, vague, and ambiguous, are either identical to or closely modeled on your Topic Number 1. 

Sincerely, 
Brian Cook 

Brian W. Cook  
Goodwin Procter LLP  
53 State Street  
Boston, MA 02109  
T: 617-570-1081  
F: 617-801-8976 
[e-mail]  
www.goodwinprocter.com  

1

EXHIBIT 4 -46-