LegalZoom.com Inc v. Rocket Lawyer Incorporated

Filing 92

REPLY IN SUPPORT OF MOTION for Summary Judgment as to AND/OR ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF (REDACTED) 60 filed by Defendant Rocket Lawyer Incorporated. (Attachments: # 1 REDACTED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF ROCKET LAWYER'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, # 2 ROCKET LAWYER INCORPORATED'S MEMORANDUM OF EVIDENTIARY OBJECTIONS IN SUPPORT OF ITS SEPARATE STATEMENT OF UNDISPUTED FACTS)(Jones, Michael)

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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

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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

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v.
ROCKET LAWYER
INCORPORATED, a Delaware
corporation,
Defendant.

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ACTIVE/74766546.1

Case No. 2:12-cv-09942-GAF-AGR
ROCKET LAWYER
INCORPORATED’S
MEMORANDUM OF
EVIDENTIARY OBJECTIONS IN
SUPPORT OF ITS SEPARATE
STATEMENT OF UNDISPUTED
FACTS
Date:
Time:
Judge:
Courtroom:
Action Filed:

August 18, 2014
9:30 a.m.
Judge Gary A. Feess
740
November 20, 2012

Pursuant to the Court’s current standing Scheduling Order, Dkt. 26 at II.C.3,

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Defendant Rocket Lawyer Incorporated (“Rocket Lawyer”) submits this

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Memorandum of Evidentiary Objections in support of the objections it has made in

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the Separate Statement of Undisputed Facts in support of its Motion for Summary

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Judgment.

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I.

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LEGALZOOM’S GENERAL OBJECTIONS SHOULD BE
DISREGARDED
Plaintiff LegalZoom.com, Inc. (“LegalZoom”), in its Statement of Genuine

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Disputes, asserted four “General Objections” to Rocket Lawyer’s survey evidence.

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As set forth herein, those General Objections are not only improper but legally and

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factually inaccurate, and thus should be disregarded by the Court.

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A. LegalZoom’s General Objections Should Not Be Considered As They
Improperly Contravene This Court’s Scheduling Order

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LegalZoom’s “General Objections” are in direct conflict with this Court’s

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requirements in its Scheduling Order, which reads: “DO NOT SUBMIT BLANKET

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OR BOILERPLATE OBJECTIONS TO THE OPPONENT’S STATEMENTS OF

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UNDISPUTED FACT: THESE WILL BE DISREGARDED AND OVERRULED.”

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Dkt. 26 at II.C.3 (capitals in original). By failing to specifically identify which

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fact(s) to which the “General Objections” were intended to be asserted, LegalZoom

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has submitted blanket objections which this Court should not consider.

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B. LegalZoom’s General Objections Should Be Overruled are Misleading
or Legally or Factually Inaccurate

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Even should this Court consider the substance of LegalZoom’s “General

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Objections,” those four objections, set forth in order below along with the responses

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thereto, should be overruled as legally and factually inaccurate.

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1. LegalZoom alleges that the expert reports of Dr. Jerry Wind are hearsay not

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subject to any exception. However, this district has specifically held that

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“[e]xpert reports submitted pursuant to Rule 26 constitute proper evidence to

ACTIVE/74766546.1

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support a motion for summary judgment.” VMG Salsoul, LLC v. Ciccone, No.

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CV 12-05967 BRO CWX, 2013 WL 8600435, at *5 (C.D. Cal. Nov. 18, 2013).

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Professor Wind’s reports each contain his signature as required by Rule 26 and

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were exchanged pursuant to the deadlines provided by the Court and Rule 26’s

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continuing obligation to supplement the reports should additional information be

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available. See Declaration of Hong-An Vu (ECF NO. 61) at ¶¶ 2; 4 Exs. A, C

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(Wind Reports). Thus, the reports alone, without further “verification” are

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admissible on summary judgment. Furthermore, Prof. Wind’s export reports

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were verified at his deposition (see Wind Dep. 8:21-24), satisfying the

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requirement in King Tuna, Inc. v. Anova Food, Inc. that “to be competent

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summary judgment evidence, an expert report must be sworn to or otherwise

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verified, usually by deposition or affidavit.” No. 07-7451-ODW, 2009 WL

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650732, at *1 (C.D. Cal. Mar. 10, 2009).

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2. LegalZoom objects that it has not been provided with the database and other

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information which Prof. Wind relied upon for his expert report. This is

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misleading.

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 Rocket Lawyer and LegalZoom discussed exchanging database

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information on May 12, 2014. Declaration of Hong-An Vu III (filed

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concurrently with Rocket Lawyer’s Reply and supporting documents), at ¶

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2, Ex. A.

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 Both parties agreed to investigate how best to transfer the data provided

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from their respective surveys – which had been produced in pdf format.

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Id. at ¶ 3.

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 On May 13, 2014, counsel for Rocket Lawyer, tried to contact counsel for
LegalZoom to discuss further. Id. at ¶ 4.
 Counsel for LegalZoom said she was still determining whether the

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Isaacson survey data could be provided in another format and what format

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she would like Rocket Lawyer’s data. Id.

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 Ms. Winograd for did not follow-up again about the survey data. Id. at 5.

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 On July 15, 2014, to Ms. Vu’s knowledge, counsel for LegalZoom raised

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for the first time since May 13, 2014 its request for the survey data in

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another format and the parties agreed to discuss this matter outside the

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deposition. Id. at ¶ 6.

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 Counsel for LegalZoom has not contacted counsel for Rocket Lawyer

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since the deposition to discuss exchanging databases and what format

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would be most helpful for the parties. Id. at ¶ 8.

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 To date, Rocket Lawyer has provided all the supporting data for Professor
Wind’s survey. Id. at ¶ 9.

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3. Similarly, LegalZoom objects that it was not provided a link to Prof. Wind’s

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survey for evaluation. This is also misleading. Counsel for LegalZoom

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requested a link to the survey as respondents would have viewed it for the first

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time on July 15, 2014 at Professor Wind’s deposition. Id. at ¶ 7. As stated

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above, although the parties agreed to discuss exchanging further information

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about expert materials after the deposition, counsel for LegalZoom never reached

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out to counsel for Rocket Lawyer to discuss further. Id. Indeed, in response to

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Rocket Lawyer’s request for production of documents relied upon by

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LegalZoom’s experts, many of which have not been produced, LegalZoom has

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flat-out refused to provide such information. Id. at ¶ 10, Ex. B (LegalZoom’s

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responses to Third Request for Production No. 2).

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4. LegalZoom objects that Rocket Lawyer continues to produce documents. This is

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inaccurate. Rocket Lawyer’s production of documents was complete as of July

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18, 2014. As of the time of Rocket Lawyer’s filing of its Motion for Summary

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Judgment, Rocket Lawyer had produced in excess of 22,000 documents. To the

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extent LegalZoom complains it has not received documents or had insufficient

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time to review them, such fault lies squarely with LegalZoom, especially in light

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of the fact that LegalZoom to date, has only produced approximately 3,300

ACTIVE/74766546.1

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documents between itself and third party, Travis Giggy, and has no stated

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whether it has completed its productions.

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Accordingly, should this Court consider LegalZoom’s “General Objections”

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despite the Court’s Scheduling Order prohibiting them, those objections should be

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overruled.

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II.

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LEGALZOOM’S OBJECTIONS TO ROCKET LAWYER’S
UNDISPUTED FACTS IMPROPERLY LACK EVIDENTIARY
SUPPORT AND SHOULD BE OVERRULED
LegalZoom failed to submit a separate memorandum in support of its

objections to Rocket Lawyer’s evidence, as it was required to do so under this
Court’s Scheduling Order. See Dkt. 26 at II.C.3 (“If a party disputes a fact based in
whole or in part on an evidentiary objection, the ground of the objection . . . should
be stated in the separate statement but not argued in that document. Evidentiary
objections are to be addressed in a separate memorandum to be filed with the
opposition or reply brief of the party.”) (emphasis added). Accordingly, LegalZoom
has provided no support for its objections to Rocket Lawyer’s evidence,1 and any
such purported objections as to those facts should be overruled. Should LegalZoom
subsequently file the required separate memorandum in support of its objections to
Rocket Lawyer’s evidence, Rocket Lawyer reserves the right to assert any responses
thereto either in a separate filing or at oral argument.
It should be noted that LegalZoom improperly removed from the separate
statement facts that it did not dispute. Dkt. 26 at II.C.1 (“The document must be
in two columns; the left hand column must restate the allegedly undisputed fact, and
the right hand column must indicate either undisputed, or disputed”) (emphasis
added). In the SSUF submitted with the reply brief, Rocket Lawyer has re-inserted
the undisputed facts deleted by LegalZoom so that the record will be complete.
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LegalZoom’s Statement of Genuine Disputes purports to object to Fact Nos.: 5, 9,
10, 11, 12, 13, 14, 15, 19, 20, 21, 22, 24, 25, 26, 28-40, 42, 54. LegalZoom has
disputed other facts, but has not made evidentiary objections to these other facts.

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These facts were not addressed by LegalZoom, and are thus undisputed.

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III.

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Rocket Lawyer’s Objections to LegalZoom’s “Undisputed” Facts In
Support of its Opposition

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Separate Statement Paragraph 96: Objection to the First Amended

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Complaint, Paragraph 14 (stating the alleged gravamen of LegalZoom’s suit), as

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used by LegalZoom, on the grounds that it is misleading and irrelevant. To the

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extent that this statement implies LegalZoom’s complaint is based on Rocket

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Lawyer’s use of the word “free” generally, as opposed to the use of “free” without

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sufficient disclosure, it is misleading. Fed. R. Evid. 403. The Court has already

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determined this fact, and thus LegalZoom’s characterization of its claims is

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irrelevant. Fed. R. Evid. 401, 402; Galen v. Mobil Oil Corp., 922 F. Supp. 318, 320

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(C.D.Cal. 1996) (“Previous findings of fact and conclusions of law in this case

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govern the evaluation” of remaining claims).

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Separate Statement Paragraph 97: Objection to the First Amended

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Complaint, Paragraphs 13-14 (discussing LegalZoom’s allegations that Rocket

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Lawyer’s advertisements for “free” services are misleading because consumers must

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pay a fee), as used by LegalZoom, on the grounds that they are misleading and

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irrelevant. To the extent that this statement implies LegalZoom’s complaint is based

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on Rocket Lawyer’s use of the word “free” generally, as opposed to the use of

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“free” without sufficient disclosure, it is misleading. Fed. R. Evid. 403. The Court

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has already determined this fact, and thus LegalZoom’s characterization of its

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claims is irrelevant. Fed. R. Evid. 401, 402; Galen v. Mobil Oil Corp., 922 F. Supp.

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318, 320 (C.D.Cal. 1996) (“Previous findings of fact and conclusions of law in this

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case govern the evaluation” of remaining claims).

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Separate Statement Paragraph 98: Objection to Paragraph 6 and Exhibit D of

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the Nguyen Decl. (screenshots of Rocket Lawyer’s “Interview” for “Company Set-

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up” and “Company Details” for incorporation), on the grounds that they are

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incomplete and misleading as used by LegalZoom, and they do not constitute the

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best evidence of Rocket Lawyer’s incorporation interview and disclosure of state

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fees. To the extent that these screenshots imply that they are the only screens

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presented to the consumer during the incorporation journey, they are incomplete and

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the entirety of the journey should be considered. Fed. R. Evid. 106. To the extent

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that these screenshots are presented without the context of the remainder of the

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customer incorporation journey, they are misleading. Fed. R. Evid. 403. These

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screenshots are not the best evidence as they reflect only an excerpt of certain

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screens shown to the consumer during the customer incorporation journey, and the

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full journey should be considered. Fed. R. Evid. 1001, 1002.

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Separate Statement Paragraph 99: Objection to the First Amended

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Complaint, Paragraph 13 and Exhibit C (describing and showing certain of Rocket

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Lawyer’s allegedly false and misleading advertisements), on the grounds that they

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are misleading and do not constitute the best evidence. LegalZoom has presented

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ads that consumers are not likely to encounter in the typical consumer journey, thus,

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the evidence is misleading. Fed. R. Civ. Proc. 403. As provided to LegalZoom, the

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best evidence of Rocket Lawyer’s disclosure of its attorney services is Exhibit C to

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the Hollerbach Declaration, which is the screenshot before consumers register for a

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Rocket Lawyer free or paying plan. This screenshot speaks for itself and is the best

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evidence of Rocket Lawyer’s ads and disclosures. Fed. R. Evid. 1001, 1002. Fed.

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R. Evid. 1001, 1002.

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Separate Statement Paragraph 100: Objection to the First Amended

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Complaint, Paragraphs 13-14 and Exhibit C; and the Nguyen Decl., Paragraphs 7-8

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and Exhibits E & F (describing and showing certain of Rocket Lawyer’s allegedly

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false and misleading advertisements and non-disclosures in advertisements), as used

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by LegalZoom, on the grounds that they are misleading, are not the best evidence,

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and are used to evidence an improper legal conclusion. LegalZoom has presented

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ads that consumers are not likely to encounter in the typical consumer journey, thus,

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the evidence is misleading. Fed. R. Civ. Proc. 403. As provided to LegalZoom, the

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best evidence of Rocket Lawyer’s disclosure of its attorney services is Exhibit C to

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the Hollerbach Declaration, which is the screenshot before consumers register for a

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Rocket Lawyer free or paying plan. This screenshot speaks for itself and is the best

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evidence of Rocket Lawyer’s ads and disclosures. Fed. R. Evid. 1001, 1002. To the

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extent that these statements and images are offered as fact as to the alleged

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misleading nature of the advertisements, they are improper legal conclusions. Fed.

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R. Civ. Proc. 56(c)(4); L.R. 7-7.

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Separate Statement Paragraph 101: Objection to the First Amended

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Complaint, Paragraphs 13-14 and Exhibit C; the Nguyen Decl., Paragraph 8 and

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Exhibit F; and the Winograd Decl., Paragraph 10 and Exhibit I (describing and

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showing certain of Rocket Lawyer’s allegedly false and misleading advertisements

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and non-disclosures in advertisements, and a Better Business Bureau complaint

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report about Rocket Lawyer’s ads), as used by LegalZoom, on the grounds that they

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are misleading, are not the best evidence, and are used to evidence an improper legal

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conclusion. LegalZoom has presented ads that consumers are not likely to

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encounter in the typical consumer journey, thus, the evidence is misleading. Fed. R.

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Civ. Proc. 403. As provided to LegalZoom, the best evidence of Rocket Lawyer’s

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disclosure of its attorney services is Exhibit C to the Hollerbach Declaration, which

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is the screenshot before consumers register for a Rocket Lawyer free or paying plan.

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This screenshot speaks for itself and is the best evidence of Rocket Lawyer’s ads

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and disclosures. Fed. R. Evid. 1001, 1002. To the extent that these statements and

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images are offered as fact as to the alleged misleading nature of the advertisements,

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they are improper legal conclusions. Fed. R. Civ. Proc. 56(c)(4); L.R. 7-7. The

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evidence is further misleading because one example is not indicative of consumers’

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experience generally, and the particular consumer who issued the complaint was not

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complaining about having to pay for services, but rather having to provide an email

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address in order to access the free assistance. See Winograd Decl. ¶ 10; Fed. R. Civ.

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Proc. 403.

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Separate Statement Paragraph 102: Objection to the First Amended

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Complaint, Paragraphs 15-16 (describing Rocket Lawyer’s alleged violations of

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FTC regulations amounting to unfair competition), as used by LegalZoom, on the

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grounds that they are misleading, are irrelevant, and are used to evidence an

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improper legal conclusion. These statements allege that Rocket Lawyer’s

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advertisements violate FTC regulations and constitute unfair competition; to the

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extent that this evidence is argument presented as fact, as used by LegalZoom these

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statements themselves are misleading. Fed. R. Evid. 403. To the extent these

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statements allege a violation of FTC regulations they are irrelevant because a

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violation of FTC guidelines is not actionable by a private party. FTC Operating

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Manual, Industry Guidance, ch. 8 § 3.2; see e.g., Ash Grove Cement Co. v. F.T.C.,

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577 F.2d 1368, 1374 (9th Cir. 1978) (industry guide “not binding”); Dreisbach v.

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Murphy, 658 F.2d 720, 730 (9th Cir. 1981) (“[t]he Act rests initial remedial power

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solely in the Federal Trade Commission”); Fed. R. Evid. 401, 402. To the extent

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that these statements are offered as fact as to the alleged violations by Rocket

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Lawyer, they are improper legal conclusions. Fed. R. Civ. Proc. 56(c)(4); L.R. 7-7.

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Separate Statement Paragraph 103: Objection to the First Amended

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Complaint, Paragraphs 17 & 25 (describing LegalZoom’s alleged harm as a result of

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Rocket Lawyer’s alleged false and misleading advertisements), as used by

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LegalZoom, on the grounds that they are misleading, are irrelevant, and are used to

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evidence an improper legal conclusion. LegalZoom’s allegations presented as facts

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without evidentiary support are misleading and irrelevant on summary judgment.

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Fed. R. Evid. 401, 402, 403. To the extent that these statements are offered as fact

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as to the alleged violations by Rocket Lawyer or their alleged resulting harm, they

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are improper legal conclusions. Fed. R. Civ. Proc. 56(c)(4); L.R. 7-7.

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Separate Statement Paragraph 104: Objection to the First Amended

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Complaint, Paragraphs 25, 33, 40 (stating the FAC seeks injunctive relief). To the

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extent that these statements imply that LegalZoom does not also seek damages in

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the FAC, they are misleading. Fed. R. Evid. 403.

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Separate Statement Paragraph 105: Objection to Rocket Lawyer’s Motion for

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Summary Judgment, lines 1:24-2:7; the Vu Decl. II, Paragraph 3 and Appendices A

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and E to Exhibit B (relating to Prof. Wind’s survey as a reflection of the consumer

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journey on Rocket Lawyer’s website to determine whether consumers are deceived

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by Rocket Lawyer’s advertisements and whether they would make a purchasing

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decision in favor of Rocket Lawyer), as used by LegalZoom, on the grounds that

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they are misleadingand irrelevant. To the extent that these statements imply Rocket

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Lawyer’s expert’s survey was not motivated by the Court’s direction to test

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perception and purchasing decisions based on the advertisements in context, they are

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misleading. Fed. R. Evid. 403. To the extent the Court already determined these

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facts or the scope of the case, they are irrelevant. Fed. R. Evid. 401, 402; Galen v.

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Mobil Oil Corp., 922 F. Supp. 318, 320 (C.D. Cal. 1996) (“Previous findings of fact

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and conclusions of law in this case govern the evaluation” of remaining claims); see

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also Summary Judgment Order, Dkt. 44.

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Separate Statement Paragraph 106: Objection to the First Amended

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Complaint, Paragraphs 13-14 (relating to the focus of LegalZoom’s suit), as used by

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LegalZoom, on the grounds that they are misleading and irrelevant. To the extent

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that these statement imply LegalZoom’s complaint is based on Rocket Lawyer’s use

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of the word “free” generally, as opposed to the use of “free” without sufficient

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disclosure, it is misleading. Fed. R. Evid. 403. To the extent the Court already

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determined these facts, they are irrelevant. Fed. R. Evid. 401, 402; Galen v. Mobil

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Oil Corp., 922 F. Supp. 318, 320 (C.D. Cal. 1996) (“Previous findings of fact and

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conclusions of law in this case govern the evaluation” of remaining claims).

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Separate Statement Paragraph 107: Objection to Paragraphs 11-12 and

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Exhibits J and K to the Winograd Decl. (referring to the Isaacson Report and the

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Goedde Report), on the grounds that they are unreliable and premised upon unsound

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scientific methodologies. To the extent that the Isaacson Report and Goedde Report

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reflect LegalZoom’s experts’ survey results demonstrating the impact of the word

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“free” in advertising that are based on upon unreliable or unsound scientific

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methodologies, it is inadmissible. Fed. R. Evid. 702; Daubert v. Merrell Dow

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Pharm., Inc., 509 U.S. 579 (1993). This is especially true as to the report by Larry

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Chiagouris whose opinions about consumer behavior are not supported by market

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research or survey data. See, e.g., Schwab v. Philip Morris USA, Inc., No. CV 04-

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1945(JBW), 2005 WL 2401647, at *4 (E.D.N.Y. Sept. 29, 2005) (excluding expert

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testimony on consumer behavior wher.e no survey was conducted); Sandoz Pharm.

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Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 229 (3d Cir. 1990) (consumer

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behavior cannot be presumed; “a plaintiff must produce consumer surveys or some

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surrogate therefor to prove” consumer expectations; see also, Diamond Triumph

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Auto Glass, Inc. v. Safelite Glass Corp., 441 F. Supp. 2d 695, 711 (M.D. Pa. 2006)

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(concluding expert opinion formed without a survey on what consumer was “likely

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to do” was insufficient to create a disputed fact for summary judgment)
Separate Statement Paragraph 108: Objection to Exhibit E to the Wind

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Report (showing test and control stimuli for the Wind survey), as used by

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LegalZoom, on the grounds that it is misleading and is not the best evidence. To the

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extent that this document implies that it captures the entirety of Prof. Wind’s survey

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methodology, it is misleading and incomplete. Fed. R. Evid. 403. This document is

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not the best evidence as it reflects only a portion of the stimuli used in support of

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Prof. Wind’s survey, and the Wind Report speaks for itself. Fed. R. Evid. 1001,

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1002.

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Separate Statement Paragraph 109: Objection to Exhibit E to the Wind

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Report (showing test and control stimuli for the Wind survey), as used by

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LegalZoom, on the ground that it is misleading. To the extent that this exhibit is

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offered to imply that Prof. Wind’s survey methodology or conclusions are improper,

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this exhibit is misleading. Objection to Paragraph 14 of the First Amended

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Complaint, as used by LegalZoom, on the ground that the evidence does not support

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the cited proposition.
Separate Statement Paragraph 110: Objection to lines 36:8-21 of the Wind

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Decl., as used by Legal Zoom, on the grounds that they are misleading and not the

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best evidence. To the extent that these statements are offered to reflect the entirety

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of Prof. Wind’s survey design and methodology, they are misleading. Fed. R. Evid.

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403. To the extent these statements describe Prof. Wind’s expert report, they are not

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the best evidence as Prof. Wind’s expert report speaks for itself. Fed. R. Evid. 1001,

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1002.

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Separate Statement Paragraph 111: Objection to lines 36:8-21 of the Wind

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Decl., as used by Legal Zoom, on the grounds that they are misleading and not the

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best evidence. To the extent these statements are used to determine whether a

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“typical” consumer journey exists, they are not the best evidence of this fact as other

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witnesses, such as Paul Hollerbach, with knowledge of consumers’ behavior on

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Rocket Lawyer has provided better evidence. Fed. R. Evid. 1001, 1002.

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LegalZoom’s presentation of Professor Wind’s statement is misleading because 1)

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the stimuli was created with assistance from Rocket Lawyer to mimic the

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consumers’ experience, and 2) to complete certain forms on RocketLawyer.com,

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including incorporation, consumers must view certain webpages shown to the

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survey respondents. Fed. R. Evid. 403.

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Separate Statement Paragraph 113: Objection to First Amended Complaint,

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Paragraphs 13-14 (asserting that LegalZoom’s claims are not related to the purchase

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process at Rocket Lawyer), to the extent that it implies that the ads which are the

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subject of LegalZoom’s claims need not be viewed in the context of Rocket

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Lawyer’s site, including the customer purchasing process. Order Re: Plaintiff’s

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Motion for Summary Judgment, Dkt. 44, at 9.

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Separate Statement Paragraph 117: Objection to pages 42, 59 of the Wind

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Report and lines 97:8-10 of the Wind Decl. (reciting the bases for Prof. Wind’s

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survey), on the grounds that they are incomplete and misleading as used by

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LegalZoom. First, the survey is not based on the tree; rather the tree is based on the

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survey results. To the extent that these statements imply that these are the only

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bases for Prof. Wind’s survey, they are incomplete and the entirety of the respective

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documents should be considered. Fed. R. Evid. 106. To the extent that these

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statements are presented without the context of the remainder of the respective

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documents, they are misleading. Fed. R. Evid. 403.

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Separate Statement Paragraph 118: Objection to lines 99:10-100:20 of the

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Wind Decl. (discussing Prof. Wind’s methodology for eliminating survey

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respondents as being not candidates for potential deception by Rocket Lawyer’s

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ads), on the grounds that they are incomplete and misleading as used by LegalZoom.

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To the extent that these statements imply that these are the only discussion of Prof.

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Wind’s methodology for conducting his survey, they are incomplete and the entirety

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of the document should be considered. Fed. R. Evid. 106. To the extent that these

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statements are presented without the context of the remainder of the document, they

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are misleading. Fed. R. Evid. 403.

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Separate Statement Paragraph 119: Objection to lines 105:16-22 of the Wind

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Decl. (discussing the number of candidates in Prof. Wind’s survey pool used to

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assess the impact of Rocket Lawyer’s allegedly confusing or misleading ads), on the

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grounds that they are incomplete and misleading as used by LegalZoom. To the

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extent that these statements imply that these are the only discussion of Prof. Wind’s

21

methodology for conducting his survey and test group participants, they are

22

incomplete and the entirety of the document should be considered. Fed. R. Evid.

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106. To the extent that these statements are presented without the context of the

24

remainder of the document, they are misleading. Fed. R. Evid. 403. To the extent

25

that these statements are offered to imply Prof. Wind’s methodology or conclusions

26

are flawed due to the number of survey candidates remaining in the test group as

27

opposed to the control group, the statements are misleading. Fed. R. Evid. 403.

28

Professor Wind had an acceptable sample size with over 100 respondents in each

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test and control group.
Separate Statement Paragraph 120: Objection to page 42 of the Wind Report

3

(discussing Prof. Wind’s process for obtaining a percentage for the test group), on

4

the grounds that it is incomplete and misleading as used by LegalZoom. To the

5

extent that LegalZoom uses tthe statements on page 42 to imply that Professor Wind

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did not take sample size into account, LegalZoom’s evidence is incomplete. Fed. R.

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Evid. 106. To the extent that page 42 is presented without the context of the

8

remainder of the document, it is misleading. Fed. R. Evid. 403. To the extent that

9

the statements on page 42 imply that Prof. Wind did not account for sample size in

10

determining statistical significance, they are misleading. Fed. R. Evid. 403.

11

Separate Statement Paragraph 121: Objection to page 42 of the Wind Report

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and Paragraph 67 of the Isaacson Report (discussing Prof. Wind’s confidence level

13

and margin of error regarding a percentage for the test group), on the grounds that it

14

is incomplete and misleading as used by LegalZoom. To the extent that LegalZoom

15

uses tthe statements on page 42 to imply that Professor Wind did not take sample

16

size into account, LegalZoom’s evidence is incomplete. Fed. R. Evid. 106. To the

17

extent that page 42 is presented without the context of the remainder of the

18

document, it is misleading. Fed. R. Evid. 403. To the extent that the statements on

19

page 42 imply that Prof. Wind did not account for sample size in determining

20

statistical significance, they are misleading. Fed. R. Evid. 403.

21

Separate Statement Paragraph 126: Objection to Paragraph 68 of and Table B

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to the Isaacson Report, on the grounds that they are unreliable and premised upon

23

unsound scientific methodologies. To the extent that this paragraph and table reflect

24

the survey results of LegalZoom’s expert that are based on upon unreliable or

25

unsound scientific methodologies, they are inadmissible. Fed. R. Evid. 702;

26

Daubert v. Merrell Dow Pharm, Inc., 509 U.S. 579 (1993).

27
28

Separate Statement Paragraph 127: Objection to Paragraph 98 of the Isaacson
Report, on the grounds that it is unreliable and premised upon unsound scientific

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methodologies. To the extent that this paragraph reflects the survey results of

2

LegalZoom’s expert that are based on upon unreliable or unsound scientific

3

methodologies, it is inadmissible. Fed. R. Evid. 702; Daubert v. Merrell Dow

4

Pharm., Inc., 509 U.S. 579 (1993). As discussed in detail in Rocket lawyer’s briefs,

5

Dr. Isaacson, among other problemes, did not test the correct facts, engineered the

6

stimuli to get the results desired by LegalZoom, and ignored about 60% of the

7

responses to his survey. To the extent Dr. Isaacson concludes that the amount of

8

fees paid is material based on such survey results, that conclusion is an unsupported

9

by admissible evidence since he tested the “materiality” of “price” and not payment

10
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of state fees.
Separate Statement Paragraph 128: Objection to Paragraph 78 and Table C of

12

the Isaacson Report, on the grounds that they are unreliable and premised upon

13

unsound scientific methodologies. To the extent that this paragraph and table reflect

14

the survey results of LegalZoom’s expert that are based on upon unreliable or

15

unsound scientific methodologies, they are inadmissible. Fed. R. Evid. 702;

16

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). To the extent Dr.

17

Isaacson concludes that payment of state fees is material based on such survey

18

results, that conclusion is unsupported by evidence as Dr. Isaacson tested “price”

19

and not whether paying state fees is material to consumers.

20

Separate Statement Paragraph 129: Objection to Paragraph 11 and Exhibit J

21

to the Winograd Decl. (the Isaacson Report), on the grounds that it is unreliable and

22

premised upon unsound scientific methodologies. To the extent that the Isaacson

23

Report reflects the survey results of LegalZoom’s expert that are based on upon

24

unreliable or unsound scientific methodologies, it is inadmissible. Fed. R. Evid.

25

702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Dr. Isaacson’s

26

survey also did not test the allegations at issue – free without disclosure of state fees

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– and not “free” generally, and thus is irrelevant. Fed. R. Evid. 401, 402.

28

Separate Statement Paragraph 131: Objection to Rocket Lawyer’s Answer

ACTIVE/74766546.1

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and Amended Counterclaims, Dkt. 17, 2:26-3:1 (“Rocket Lawyer admits that it has

2

produced new advertisements regarding its business and a variety of services it

3

offers since the service of the original complaint . . .”), on the grounds that it is

4

misleading and evidence of subsequent remedial measures offered to prove culpable

5

conduct. To the extent that this statement implies Rocket Lawyer revised its

6

advertisements because they were allegedly improper or injurious, it is misleading.

7

Fed. R. Evid. 403. To the same extent and implication, the statement is evidence of

8

subsequent remedial measures and is inadmissible to show culpable conduct. Fed.

9

R. Evid. 407. To the extent that this statement is offered for any other purpose, it is

10

irrelevant as it is of no consequence to the determination of this action. Fed. R.

11

Evid. 401, 402.

12

Separate Statement Paragraph 132: Objection to Paragraph 10 and Exhibits F

13

& G of the Nguyen Decl. (attaching Rocket Lawyer’s On Call Terms of Service

14

from July 2012 and November 2012), on the grounds that they are misleading and

15

evidence of subsequent remedial measures offered to prove culpable conduct. To

16

the extent that these statements and documents imply Rocket Lawyer revised its

17

Terms of Service because they were allegedly improper or injurious, they are

18

misleading. Fed. R. Evid. 403. To the same extent and implication, the statements

19

and documents are evidence of subsequent remedial measures and are inadmissible

20

to show culpable conduct. Fed. R. Evid. 407. To the extent that these statements

21

and documents are offered for any other purpose, they are irrelevant as they are of

22

no consequence to the determination of this action. Fed. R. Evid. 401, 402.

23

Separate Statement Paragraph 133: Objection to Paragraph 10 and Exhibit I

24

of the Winograd Decl. (regarding consumer complaints about being deceived by

25

Rocket Lawyer’s advertisements), on the grounds that they are misleading and

26

irrelevant. To the extent this evidence is offered to dispute the conclusions of the

27

Wind Report as to reasonable consumer deception, it is misleading because

28

individual complaints are not sufficient to overcome market research. Fed. R. Evid.

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403. To the extent these complaints do not represent that a significant portion of

2

customers were deceived, they are irrelevant. Fed. R. Evid. 401, 402; see also

3

Summary Judgment Order, Dkt. No. 44, at 10 (“[A] handful of customer statements

4

on one review site is not sufficient to demonstrate that a ‘significant portion’ of

5

customers were deceived and is not necessarily a reliable consumer survey or

6

market research.”).

7

Separate Statement Paragraph 134: Objection to Paragraph 4 of the Goedde

8

Decl. (pertaining to differences in conversion rates between different Rocket

9

Lawyers ads), on the grounds that it is improper expert testimony. This statement is

10

inadmissible as expert testimony because it is not the product of Dr. Goedde’s

11

application of reliable principles and methods of statistics and the trier of fact does

12

not need the expert’s specialized knowledge to compare the size of two numbers.

13

Fed. R. Evid. 702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). To

14

the extent the statement is offered not as expert testimony, it is misleading as used

15

by LegalZoom as being made by the expert as it tends to imply it is the product of

16

the expert’s specialization. Fed. R. Evid. 403. Dr. Goedde does not appear to have

17

sufficient expertise in statistics for the Court to consider his opinion as used by

18

LegalZoom in this fact.

19

Separate Statement Paragraph 135: Objection to Exhibits B and C of the

20

Winograd Decl. (regarding Rocket Lawyer’s efforts to compete with LegalZoom),

21

on the grounds that they are misleading and irrelevant. To the extent this evidence

22

implies Rocket Lawyer was competing with LegalZoom unfairly, it is misleading.

23

Fed. R. Evid. 403. To the extent this evidence is offered for any other purpose, it is

24

irrelevant as it is of no consequence to the determination of this action. Fed. R.

25

Evid. 401, 402.

26

Separate Statement Paragraph 136: Objection to Exhibits B, D, and E of the

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Winograd Decl. (regarding Rocket Lawyer’s intentional use of the word “free” in its

28

advertising), as used by LegalZoom, on the grounds that they are misleading. To

ACTIVE/74766546.1

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1

the extent these documents imply that Rocket Lawyer’s use of “free” in its

2

advertising, standing alone, is exploitive or legally actionable, they are misleading.

3

Fed. R. Evid. 403.

4

Separate Statement Paragraph 137: Objection to Exhibits F and G of the

5

Winograd Decl. (regarding Rocket Lawyer’s intention to ‘convert’ customers and

6

monitoring of conversions), as used by LegalZoom, on the grounds that they are

7

misleading and irrelevant. To the extent these documents imply that Rocket Lawyer

8

gained business from its ads unfairly, they are misleading. Fed. R. Evid. 403. To

9

the extent this evidence is offered for any other purpose, it is irrelevant as it is of no

10
11

consequence to the determination of this action. Fed. R. Evid. 401, 402.
Separate Statement Paragraph 138: Objection to Paragraphs 9-10 and

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Exhibits H and I of the Winograd Decl. (regarding Rocket Lawyer’s tracking of

13

consumer complaints and Better Business Bureau complaint reports about Rocket

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Lawyer’s allegedly misleading advertisements), as used by LegalZoom, on the

15

grounds that they are misleading and irrelevant. To the extent these documents

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imply Rocket Lawyer spent relatively large amounts of time addressing consumer

17

complaints about its “free” advertisements or evidence significant customer

18

confusion regarding “free” with respect to payment of state fees, they are

19

misleading. Fed. R. Evid. 403. To the extent these complaints do not represent that

20

a significant portion of customers were deceived, they are irrelevant as individual

21

customer complaints do not supplant market research. Fed. R. Evid. 401, 402; see

22

also Summary Judgment Order, Dkt. No. 44, at 10 (“[A] handful of customer

23

statements on one review site is not sufficient to demonstrate that a ‘significant

24

portion’ of customers were deceived and is not necessarily a reliable consumer

25

survey or market research.”).

26

Separate Statement Paragraph 139: Objection to First Amended Complaint,

27

Exhibits A-2, A-3, and A-4 (evidencing Rocket Lawyer’s receipt of complaints

28

regarding its allegedly misleading advertising), as used by LegalZoom, on the

ACTIVE/74766546.1

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1

grounds that they are misleading and irrelevant. To the extent these complaints

2

imply Rocket Lawyer’s advertisements are actually misleading or that this evidence

3

is argument presented as fact, as used by LegalZoom these complaints themselves

4

are misleading. Fed. R. Evid. 403. To the extent these complaints do not represent

5

that a significant portion of customers were deceived, they are irrelevant. Fed. R.

6

Evid. 401, 402; see also Summary Judgment Order, Dkt. No. 44, at 10 (“[A] handful

7

of customer statements on one review site is not sufficient to demonstrate that a

8

‘significant portion’ of customers were deceived and is not necessarily a reliable

9

consumer survey or market research.”).

10

Separate Statement Paragraph 140: Objection to First Amended Complaint,

11

Exhibits A-2, A-3, and A-4 (evidencing LegalZoom’s notification that it believed

12

that Rocket Lawyer’s advertisements were misleading and violative of the law), as

13

used by LegalZoom, on the grounds that they are misleading and irrelevant.

14

LegalZoom’s opinion is not relevant to the question of whether the ads were

15

misleading or in violation of the law. Fed. R. Evid. 401, 402; Furthermore,

16

LegalZoom’s presentation of its position as fact is misleading. Fed. R. Evid. 403. In

17

addition, LegalZoom’s opinion that the ads are misleading does not replace market

18

research or demonstrate that a substantial portion of the population has been misled.

19

See also Summary Judgment Order, Dkt. No. 44, at 10 (“[A] handful of customer

20

statements on one review site is not sufficient to demonstrate that a ‘significant

21

portion’ of customers were deceived and is not necessarily a reliable consumer

22

survey or market research.”).

23

Separate Statement Paragraph 141: Objection to Rocket Lawyer’s Answer

24

and Amended Counterclaims, Dkt. 17, 2:26-3:1 (“Rocket Lawyer admits that it has

25

produced new advertisements regarding its business and a variety of services it

26

offers since the service of the original complaint . . .”) and Paragraph 10 and

27

Exhibits F & G of the Nguyen Decl. (attaching Rocket Lawyer’s On Call Terms of

28

Service from July 2012 and November 2012), on the grounds that they are

ACTIVE/74766546.1

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1

misleading and evidence of subsequent remedial measures offered to prove culpable

2

conduct. To the extent that these statements and documents imply Rocket Lawyer

3

revised its advertisements or Terms of Service because they were allegedly

4

improper or injurious, they are misleading. Fed. R. Evid. 403. To the same extent

5

and implication, the statements and documents are evidence of subsequent remedial

6

measures and are inadmissible to prove culpable conduct. Fed. R. Evid. 407.

7

To the extent that these statements and documents are offered for any other purpose,

8

they are irrelevant as they are of no consequence to the determination of this action.

9

Fed. R. Evid. 401, 402.

10
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Dated: August 4, 2014

GOODWIN PROCTER LLP

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By:

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/s/ Michael T. Jones
Forrest A. Hainline III (SBN 64166)
[e-mail]
Hong-An Vu (SBN 266268)
[e-mail]
Michael T. Jones (SBN 290660)
[e-mail]
Brian W. Cook (Pro Hac Vice)
[e-mail]
GOODWIN PROCTER LLP

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Attorneys for Defendant
ROCKET LAWYER INCORPORATED

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ACTIVE/74766546.1

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