LegalZoom.com Inc v. Rocket Lawyer Incorporated

Filing 166

EX PARTE APPLICATION for Leave to TO FILE MOTION TO SUPPLEMENT FACTUAL RECORD IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AND TO SET BRIEFING SCHEDULE filed by Defendant Rocket Lawyer Incorporated. (Attachments: # 1 DECLARATION OF HONGAN VU IN SUPPORT OF ROCKET LAWYER INCORPORATEDS EX PARTE APPLICATION TO FILE MOTION TO SUPPLEMENT FACTUAL RECORD AND TO ESTABLISH BRIEFING SCHEDULE, # 2 ROCKET LAWYER INCORPORATEDS NOTICE OF MOTION AND MOTION TO SUPPLEMENT FACTUAL RECORD IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, # 3 DECLARATION OF MICHAEL JONES IN SUPPORT OF ROCKET LAWYER INCORPORATEDS MOTION TO SUPPLEMENT FACTUAL RECORD IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, # 4 Proposed Order GRANTING MOTION TO SUPPLEMENT FACTUAL RECORD, # 5 Proposed Order GRANTING LEAVE TO FILE MOTION TO SUPPLEMENT FACTUAL RECORD AND TO ESTABLISH BRIEFING SCHEDULE)(Vu, Hong-An)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Forrest A. Hainline III (SBN 64166) fhainline@goodwinprocter.com Hong-An Vu (SBN 266268) hvu@goodwinprocter.com GOODWIN PROCTER LLP Three Embarcadero Center, 24th Floor San Francisco, California 94111-4003 Tel.: 415.733.6000 Fax.: 415.677.9041 Michael T. Jones (SBN 290660) mjones@goodwinprocter.com GOODWIN PROCTER LLP 135 Commonwealth Drive Menlo Park, California 94025-1105 Tel.: 650.752.3100 Fax.: 650.853.1038 Brian W. Cook (Pro Hac Vice) bcook@goodwinprocter.com GOODWIN PROCTER LLP 53 State Street Boston, Massachusetts 02109-2802 Tel.: 617.570.1000 Fax.: 617.523.1231 Attorneys for Defendant ROCKET LAWYER INCORPORATED UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 16 17 18 19 LEGALZOOM.COM, INC., a Delaware corporation, 20 21 22 23 24 25 26 27 28 Plaintiff, v. ROCKET LAWYER INCORPORATED, a Delaware corporation, Defendant. Case No. 2:12-cv-09942-GAF-AGR ROCKET LAWYER INCORPORATED’S EX PARTE APPLICATION TO FILE MOTION TO SUPPLEMENT FACTUAL RECORD IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AND TO SET BRIEFING SCHEDULE Date: Time: Judge: Courtroom: TBD TBD Judge Gary A. Feess 740 255 East Temple Street Los Angeles, CA 90012 Action Filed: November 20, 2012 APPLICATION 1 2 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 3 PLEASE TAKE NOTICE that pursuant to Local Rule 7-19, Defendant 4 Rocket Lawyer Incorporated (“Rocket Lawyer”) hereby applies to this Court ex 5 parte for an order allowing it to (i) to file the accompanying motion to supplement 6 the factual record (“Motion to Supplement”) relating to Rocket Lawyer’s motion for 7 summary judgment (the “RLI MSJ”), ECF No. 60, with evidence provided to 8 Rocket Lawyer on October 3 and 6, 2014, and (ii) to set a briefing schedule such 9 that this motion to supplement may be heard on November 10, 2014, the date the 10 RLI MSJ is set to be heard. 11 LegalZoom has persistently refused to produce a witness to testify about its 12 alleged damages resulting from the Rocket Lawyer advertisements at issue in this 13 case. On October 6, 2014, it produced an expert report on damages that only 14 addresses damages for one of the four categories of advertisements at issue. 15 LegalZoom also refused to produce documents its experts supposedly relied on in 16 reaching his purported damages opinion. The evidence of LegalZoom’s lack of 17 damages relating to three of Rocket Lawyer’s allegedly misleading ads was 18 provided on October 3 and October 6, 2014 and as such, was not previously 19 available to Rocket Lawyer when it was briefing the RLI MSJ. 20 Ex parte relief is necessary because there is insufficient time before the 21 November 10, 2014 hearing on the Motion for a motion to supplement the record to 22 be heard, and Rocket Lawyer will be prejudiced if the Court does not consider this 23 recently produced evidence. To allow the Court sufficient time to review the 24 additional materials, Rocket Lawyer proposes the following briefing schedule: 25 26 27  LegalZoom shall file its opposition to the Motion to Supplement on or before October 28, 2014.  Rocket Lawyer shall file a reply on or before October 31, 2014. 28 1  Should the Court require oral argument, the Motion to Supplement shall be 1 2 heard on November 10, 2014 at the same time as the hearing on the RLI MSJ. 3 Rocket Lawyer gave notice of this application to Fred Heather and Aaron 4 Allan, counsel for LegalZoom, by email and telephone on October 20, 2014. The 5 name, address, and telephone number of counsel for Plaintiff is as follows: 6 Fred D. Heather Aaron Allan GLASER WElL FINK HOWARD AVCHEN & SHAPIRO LLP 10250 Constellation Boulevard, 19th Floor Los Angeles, CA 90067 (310) 553-3000 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 I. THE COURT SHOULD ALLOW ROCKET LAWYER TO FILE THE MOTION TO SUPPLEMENT The Court should permit Rocket Lawyer to supplement the summary judgment record because the evidence it seeks to introduce is newly acquired and was not previously available. On October 3, 2014, LegalZoom confirmed that it will rely exclusively on testimony from its expert for damages. Declaration of Hong-An Vu in Support of Ex Parte Application to File Motion to Supplement the Factual Record and to Set Briefing Schedule (“Vu Decl.) at ¶ 2. On October 6, 2014, LegalZoom disclosed a third expert report from its damages expert that supersedes all prior expert reports. Id. at ¶ 3. Rocket Lawyer completed depositions of LegalZoom’s fact witnesses on October 9, 2014, id. at ¶ 4 and has brought this motion as soon as practicable after being made aware of LegalZoom’s position. Courts have permitted supplementation of newly acquired evidence after the completion of briefing. See, e.g., Lassen Mun. Utility Dist. v. Kinross Gold U.S.A. Inc., 2013 WL 875974, at *2 (E.D. Cal. Mar. 7, 2013) (granting motion to supplement summary judgment record with evidence obtained by the moving party more than two months after submission of the summary judgment motion). Rocket 28 2 1 Lawyer requests that the Court consider allowing it to supplement the record in 2 advance of the November 10, 2014, hearing. 3 II. GRANTING THIS APPLICATION WILL CAUSE NO PREJUDICE LegalZoom will not be prejudiced by the granting of this application because 4 5 the newly discovered evidence is uncomplicated, limited in scope and can be 6 addressed by LegalZoom under Rocket Lawyer’s proposed briefing schedule. 7 III. 8 9 CONCLUSION For the foregoing reasons, Rocket Lawyer respectfully requests that the Court allow it to file the accompanying motion to supplement and set the briefing 10 schedule proposed by Rocket Lawyer so that the Motion to Supplement may be 11 heard on November 10, 2014. 12 13 Dated: October 21, 2014 Respectfully submitted, 14 15 16 17 18 19 20 21 22 23 By: /s/ Hong-An Vu Forrest A. Hainline III (SBN 64166) fhainline@goodwinprocter.com Hong-An Vu (SBN 266268) hvu@goodwinprocter.com Michael T. Jones (SBN 290660) mjones@goodwinprocter.com Brian W. Cook (Pro Hac Vice) bcook@goodwinprocter.com GOODWIN PROCTER LLP Three Embarcadero Center, 24th Floor San Francisco, California 94111-4003 Tel.: 415.733.6000 Fax.: 415.677.9041 Attorneys for Defendant ROCKET LAWYER INCORPORATED 24 25 26 27 28 3

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