LegalZoom.com, Inc. v. Rocket Lawyer, Inc.

Filing 13

MOTION for Relief from Nondispositive Pretrial Order of Magistrate Judge filed by LegalZoom.com, Inc.. Responses due by 4/20/2015. Replies due by 4/27/2015. (Attachments: # 1 Appendix of Exhibits)(Allan, Aaron) (Filed on 4/6/2015)

1

PATRICIA L. GLASER -State Bar No. 55668
pglaser gl~aserweil.com
2 FRED .HEATHER -State Bar No. 110650
flleather glaserweil.com
3 AARO
.ALLAN -State Bar No. 144406
aallan glaserweil.com
4 GLAS R WEIL FINK HOWARD
AVCHEN & SHAPIRO LLP
s 10250 Constellation Boulevard, 19th Floor
Los Angeles, California 90067
6 Telephone: [phone]
Facsimile: 310 556-2920
Attorneys for Plaintiff
s LegalZoom.com,Inc.
9

UNITED STATES DISTRICT COURT

io

NORTHERN DISTRICT OF CALIFORNIA

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LEGALZOOM.COM,INC.,

CASE NO:5:15-mc-80003-NC

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Plaintiff,
v.
ROCKET LAWYER INC.,

APPENDIX OF EXHIBITS IN
SUPPORT OF PLAINTIFF,
LEGALZOOM.COM,INC.'S
MOTION FOR RELIEF FROM
NONDISPOSITIVE PRETRIAL
ORDER OF MAGISTRATE JUDGE

Defendants.
Before: Hon. Lucy H. Koh

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APPENDIX OF EXHIBITS
1010787

APPENDIX OF EXHIBITS

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DOCUMENT

TAB
NO.

3

1

Order re Ex Parte Application to Continue Hearing dated October
1, 2014

2

Lega~lZoom.com's Motion to Compel Compliance with Subpoena
to Uoogle, Inc. dated January 5, 2015

3

Declaration of Aaron Allan in Support of Motion to Compel
Compliance with Subpoena dated January 5, 2015

4

Google Inc.'s Opposition to Motion to Compel Compliance with
Subpoena dated January 20, 2015

5

Declaration of Jacob T. Veltman in Support of Motion to Compel
Compliance with Subpoena dated January 20, 2015

6

LegalZoom.com's Reply to the Motion to Compel Compliance
with Subpoena dated January 27, 2015

7

Reply Declaration of Aaron Allan in Support of Motion to Compel
Compliance with Subpoena dated January 27, 2015

8

Transcript ofProceedings re Motion to Compel Compliance with
Subpoena dated February 25, 2015

9

Order Denying LegalZoom.com's Motion to Com el Compliance
Against Non-Party Google, Inc. dated March 23, 015

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DATED: Apri16, 2015

GLASER WEIL FINK HOWARD
AVCHEN & SHAPIRO LLP
By:
AARON P. ALLAN
Attorneys for Plaintiff
LegalZoom.com, Inc.

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1
APPENDIX OF EXHIBITS
1010787

TAB 1

Case 2:12-cv-09942-JEM Document 131 Filed 10/01/14 Page 1 of 3 Page ID #:5410

LINKS: 126
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-9942 GAF (AGRx)

Title

LegalZoom.com Inc. v. Rocket Lawyer Incorporated

Present: The Honorable

Date

October 1, 2014

GARY ALLEN FEESS

Stephen Montes Kerr
Deputy Clerk

None
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None

None

Proceedings:

(In Chambers)
ORDER RE: EX PARTE APPLICATION
TO CONTINUE HEARING

A. BACKGROUND
On June 30, 2014, Defendant Rocket Lawyer filed a motion for summary judgment
(“MSJ”). (Docket No. 61.) On July 14, 2014, Plaintiff LegalZoom.com (“Legal Zoom”) filed a
cross-MSJ. (Docket No. 69.) The hearing for both MSJs was continued to October 6, 2014.
(Docket No. 120.) An issue regarding discovery proceedings has now arisen that affects the
scheduling of the pending motions.
Early in the litigation, Legal Zoom served a document request on Rocket Lawyer. (See
Docket No. 126 [Legal Zoom’s Motion to Supplement Factual Record (“LZ Mem. Supp.
Record”)] at 3, ¶ 2.) Although Legal Zoom initiated that request on March 12, 2013, Rocket
Lawyer did not produce certain responsive documents until July 3, 11, and 18, 2014. (Id. at 3, ¶
3.) Because of the late production which was temporally disconnected from the demand by
more than a year and because it was immersed in preparing the pending motion for summary
judgment, Legal Zoom did not become aware of and thus did not incorporate these documents
into its motions. (Id. at 3-4.) Accordingly, Legal Zoom has filed a motion to supplement the
record with the newly discovered documents. (See id.) Legal Zoom also believes that Rocket
Lawyer’s assertions in its motions are untruthful and warrant sanctions based on the newly
discovered information and have thus filed a motion for Rule 11 sanctions. (Docket No. 127.)
Legal Zoom attempted to resolve the issue without Court relief. (LZ Mem. Supp. Record at
3-4, ¶ 5; Docket No. 126-2 [Declaration of Aaron P. Allan] at 1, ¶ 2.) However, Rocket Lawyer
would not stipulate to supplementing the record. (Id.) Legal Zoom now asks the Court to shorten
CV-90 (06/04)

CIVIL MINUTES - GENERAL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-9942 GAF (AGRx)

Date

Title

October 1, 2014

LegalZoom.com Inc. v. Rocket Lawyer Incorporated

the time for response regarding the motion to supplement the record or continue the hearing to a
later date. (Docket No. 126 [LZ’s Ex Parte Application].)
B. THE EX PARTE STANDARD
To obtain ex parte relief, a party must show that: (1) it will be irreparably harmed but for
ex parte relief; and (2) it is without fault in creating the need for ex parte relief. Mission Power
Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). Additionally, continuing
the hearing date would require the Court to modify the current scheduling and case management
order. “A schedule may be modified only for good cause and with the judge’s consent.” Fed. R.
Civ. P. 16(b)(4). Rule 16(b)’s “good cause” standard “focuses on the reasonable diligence of the
moving party.” Noyes v. Kelly Svs., 488 F.3d 1163, 1174 n.6 (9th Cir. 2007). “If the party
seeking the modification ‘was not diligent, the inquiry should end’ and the motion to modify
should not be granted.” Zivokovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002)
(quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)).
C. DISCUSSION
After a review of the documents it is clear to the Court that not allowing supplement to the
record would cause Legal Zoom irreparable harm and potentially make it vulnerable to Rocket
Lawyer’s MSJ.
Legal Zoom has provided an adequate explanation for the delay in making this application.
Legal Zoom explains that due to the late nature of Rocket Lawyer’s late production, the volume of
documents, and looming deadlines for its Opposition and Reply Motions, it was unable to review
and assess the content of the delalyed production at an earlier date. (LZ Mem. Supp. Record at 3,
¶¶ 3-4) After failed attempts to resolve the issue with Rocket Lawyer, Legal Zoom moved to
supplement the record and applied for ex parte relief on the same day. (See LZ’s Ex Parte
Application; LZ Mem. Supp. Record.) In short, it does not appear that any delay was the
calculated result of Legal Zoom’s actions.
On the other hand, the record suggests that Rocket Lawyer intentionally dragged its feet
over a year in producing documents long after the pertinent documents had been requested. (Id. at
3, ¶¶ 2-3.) This essentially misled Legal Zoom regarding the presence of useful information in
Rocket Lawyer’s belated productions. It appears that the late production contains information that
is not just relevant and may have a significant bearing on the Court’s resolution of the pending
motions. While it is conceivable that Legal Zoom could have acted with more diligence in
reviewing the documents, given the time pressures, volume of documents, and Rocket Lawyer’s
CV-90 (06/04)

CIVIL MINUTES - GENERAL

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LINKS: 126
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-9942 GAF (AGRx)

Date

Title

October 1, 2014

LegalZoom.com Inc. v. Rocket Lawyer Incorporated

apparent delay in production, the Court finds that Legal Zoom acted reasonably promptly. It is
surely the case that Legal Zoom has gained no advantage by waiting to supplement the record in
connection with the current motions.
Rather than shorten the time, so that Rocket Lawyer and any objections it has may be
heard, the Court will instead continue the hearing date.

For the foregoing reasons, the ex parte application is GRANTED. The hearing presently
scheduled for October 6, 2014, is CONTINUED to October 27, 2014 at 9:30 a.m., at which
time the Rule 11 motion, the cross-Motions for Summary Judgment and Motion to Supplement
the record will all be heard.
IT IS SO ORDERED.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

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Case ·12-cv-09942-Gf.F-AGR Document 190 Filed 11110/14 Page 3 of5 Page ID #:6490

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11.

Dr. Elizabeth Ferguson;

Jenn Mazzon;

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m. Michael Margolis;

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iv. Katherine K (Google);

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v. Google relating to Google's inquiry into Rocket Lawyer's free
advertisements

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8

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b. Deposition of Alan Hungate regarding the reports served on November

5, 2014;
c. Document Subpoenas:
i. Dr. Elizabeth Ferguson;
11.

Google Ventures relating to any and all Topline studies and/or

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any studies done by Google Ventures concerning Rocket

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La"1yer to the extent these studies relate to the advertisements at

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issue in this litigation or other similar free advertisements and

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have not been produced; and ·

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m. Google relating to Google's inquiry into.Rocket Lawyer's free

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· advertisements; and

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d. Documents from Rocket Lavtyer:

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i. The other usability studies, including all videotapes and notes

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taken in conjunction with each of these studies referenced in

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RLI0040690 to the extent these studies relate to the

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advertisements at issue in this litigation and have not been

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produced_

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ii. Any and all Topline studies and/or any studies done by Google

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V.entures concerning Rocket Lavtyer, including any videotapes

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and/or notes taken in conjunction thereto to the extent these

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studies relate to the advertisements at issue in this litigation or

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other similar free advertisements and have not been produced.
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Aaron Allan

From:
Sent:
To:
Cc:
Subject:
Attachments:

Aaron Allan
Wednesday, December 03, 2014 5:04 PM
)[e-mail]'
Fred Heather; Barak Vaughn; '[e-mail]'
LegalZoom v. Rocket Lawyer
969827_ 1. pdf; 828861_1. pdf

Jacob,
Thanks for calling me back today to discuss the subpoenas that LegalZoom served on Michael Margolis and Google. As
we discussed, attached is the court order which permits this discovery. Also attached, per your request, is a copy of the
protective order entered in the case.
We agreed during the call to limit the. time/scope of these subpoenas to 1/1/10 - ll/31/13. We also discussed the fact
that we are willing to postpone Mr. Margolis' deposition to January 9, 2015, and that we would limit the time involved
to two hours (assuming that we have an opportunity to first review the documents that.he produces). With respect to
Google, we discussed our willingness to rely upon a declaration of a custodian of records, without the· need for live
testimony, to authenticate any records produced. We are requesting. however,. that Google's documents be produced
by December 17, 2014, if possible. We are willing to work with you and Google to address any burden issues ih meeting
that deadline, and in particular you have asked that we attempt to provide (a) the RL email a·ddresses associated with
this account; and (b) the customer ID number, bank reference number or URL transfer number/address associated with
the adwords account. We will look at our existing documents, and attempt to provide this information tomorrow by
email.
Based on the answers that I gave concerning the case and the -relevance of this material, you agreed to pursue further
discussions with your clients about resolving the-objections and proceeding to provide the discovery. In particular, you
agreed to explore whether there is any need for us to separately pursue documents from Google Ventures, and you
agreed to explore how we may proceed to take a brief deposition ofKatherine K.
Finally, you agreed to get back to me within a couple of days on these topics. Thank you for your time and cooperation.

Aaron p. Allan rPartner
Glaser Weil Fink Howard Avchen & Shapiro LLP
10250 !:onstellat!on Blvd., 19th Flqor, Los Angeles, CA 90067
Main: 310.553.3000 I Direct 310.282.6279 j Fax: [phone]

1

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Glaser Weil

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

December 9, 2014

VIA FACSIMILE & EMAIL

Dlract Dial
310282.6279
DiractFax
310.785.3579
Email
aallan@glaserweilcom

David H. Kramer
Jacob T. Veltman
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Re:

LegalZoom.com, Inc. v. Rocket Lawyer Incorporated- USDC Case No. 2:12-CV09942 - Subpoena to Google
·

Dear Counsel:

I write in response to your November 26, 2014 Responses and Objections regarding the
deposition subpoena served on Google, Inc., and further to the various communications that I
have had with Jacob Veltman to meet and confer regarding those objections.
United States District Judge Gary Feess has ordered in the above matter that Lega!Zoom
be permitted to take third party discovery from Google, Inc. on a limited basis, and we have a
limited amount of time by which to complete this and other discovery in the case. By an email
sent on December 3, 2014, I provided you with a copy of Judge Feess' order. The subjects for
production identified in our subpoena conformed to the narrow parameters of the Court's order.
We also provided, at your request, a copy of the protective order entered in this case.
Notwithstanding that any denial by Google of the requested informationwould be
inconsistent with the Court's Order, we agreed as part of a meet and confer effort to limit the
scope the production to 111/10- 12131/13,'and we also agreed to provide you with some
information that you requested to assist your £earch: (a) the Rocket Lawyer email addresses
associated with the subject Google adwords account; and (b) the customer ID number, bank
reference number or URL transfer number/address associated with the adwords account. In
reviewing our documents, we have found the following responsive emails addresses:

of

[e-mail]
[e-mail]
[e-mail]
·~

7ii MERIT.AS LAW FIRMS WORl.OW!Df
976758.1

Case5:15-mc-80003-NC Document2 Filed01/05/15 Page38 of 62

David H. Kramer
Jacob T. Veltman
Wilson Sonsini Goodrich & Rosati
December 9, 2014
Page2

[e-mail]
We were unable to locate any customer ID number, bank reference number or URL transfer
number/address associated with the adwords account, but l offered to "work with" Google to
help alleviate any burden associated with locating and producing responsive documents. For
example, we agreed to accept a declaration from a custodian of records in lieu of live testimony
for authenticating any responsive documents produced. We are open to considering other
proposals.
In my email dated December 3, 2014, I made clear our desire that Google adhere to the
December I 7, 2014, date for production, if possible. Part of the reason for our need to expedite
the production is thatwe·have a January 16, 2015, deadline to complete all discovery in the case,
including a deposition cif"Katherine K" who was a Google employee (based on emails
communications with Rocket Lawyer) that we have requested be identified by Google.
Katherine K. was an instrumental party regarding some of the Rocket Lawyer advertisements
that are at issue in this lawsuit and that violated Google's Offer Not Found Policy. Katlierine
K's knowledge, understanding, and actions taken with regards to Rocket Lawyer's violation of
Google'sOffer Not Found Policy are not within the possession of Rocket Lawyer, and are
matters that we may appropriately inquire about from her at a deposition once her identity has
been produced to us.

We remain willing to work with your firm and with Google to extend out the December
17 production date, but only if! receive some confirmation from your office that the production
is proceeding and that Google is not intending to rely upon its objections to avoid producing
responsive documents and information. During our December 3 telephone call, Mr. Veltman
agreed to get back to me on this subject by December 5. On December 5, Mr. Veltman emailed
me to tell me that he had no update, and that he was still discussing the issue internally and
would respond "as soon as [he] can."
Given our January 16, 2015; deadline to complete all discovery, we must insist upon a
response by close· of business tomorrow, December l(}, 2014, confirming Google's intentions
with respect to the subpoena, or we will have no alternative but to begin the process to pursue a
motion to compel. Because the original subpoena provided adequate notice under t)ie.rules, and
was limited in scope to the subjects allowed by the Court order, we would move with respect to
that original subpoena and would not have a need to serve any new subpoena (as I mistakenly
indicated we planned to do in my email earlier today). We would also seek monetary sanctions
based on the legal fees required to bring the motion.
As l previously indicated, we greatly prefer to work this out with Google on a consensiJ.al
basis rather than to involve the Court with expensive motion practice. But absent hearing from

976758.,

Case5:15-mc-80003-NC Document2 Filed01/05/15 Page39 of 62

David H. Kramer
Jacob T. Veltman
Wilson Sonsini Goodrich & Rosati
December9, 2014
Page 3

you by tomorrow on this subject, you leave us with no alternative but to proceed with motion
practice. I look forward to hearing from you as soon as possible on this subject.
Sincerely,

~·

h;

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

APA:cc

976758.1

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·December J 1, 20 J4

VzaE-Mail
Aaron P. Allan
Glaser Weil Fink Howard Avchen & Shapiro LLP
J0250 Constellation Blvd.
19th.Floor
Los Angeles, CA 90067
Re:

Leia!Zoom.com, Inc. v. Rocket Lawyer Incorporated - USDC Case No. 2:12. CV-09942 - Subpoena to Google

Dear Aaron:
I write in response to your letter elated December 9, 2014. I frankly do not appreciate the
false urgency and unreasonable, artificial deadlines you and your colleagues continue to inject in
this routine discovery process.
Although the Court authorized additional discovery on November J0, you waited until
the day before Thanksgiving to serve Mr. Margolis with a subpoena, and that subpoena
. demanded his appearance at a deposition only four business days later despite the fact that
discovery does not close until January 16, 2015. You similarly waited a week to serve Google
with a second subpoena yet demanded that it produce documents the day after Thanksgiving
weekend. After Google timely asserted objections despite your unnecessarily compressed time
frame, you waited a week before communicating further with my office, at which point you
insisted that we call you back that afternoon. After I complied and discussed the subpoena with
you that day, you provided a copy of the study necessary for us to evaluate your requests on
Friday, December 5. Then on December 9, you demanded that I "confirmO that.the production
is proceeding."
As I commumcated to you on Friday, we are continuing to dis.cuss your subpoena with
Google and will provide you with a substantive response regarding which documents we are
willing to produce as soon as possible. Your insistence that we conclude 1his process within
three buSiness days of having received the study at issue is simply unreasonable. Google is an
extremely large corporation and ascertaining what documents are available to be produced, what
the burden associated with that production would be, and whether there are privacy or
confidentiality concerns relating to those documents takes time, particularly given that Google is
a third party and had no familiarity with this dispute until our conversation last week.
Although your subpoenas seek documents that are largely in the possession of Rocket
Lawyer Inc. and that therefore should have been sought from Rocket Lawyer, I assure you that
they have not been forgotten or ignored and that we will respond to you as soon as possible, and

Case5:15-mc-80003-NC Document2 Filed01/05/15 Page42 of 62

Aaron P. Allan
December 11, 2014
Page :Z
within a reasonable time frame. I realize you would prefer to receive Google's production by
December 17, but that may not be practicable. Yours are certainly not the only subpoenas
currently being processed by Google at this time, and any firm expectation that discovery from
Google would be concluded in less than a month from the service of your subpoenas is, again,
unreasonable. This case has been pending for more than two years. If there is any urgency in
your discovery _demands, it is due to your decision to wait until the eleventh hour to seek
discovery from Googie.
·

You may opt to short-circuit the meet and confer process and move to compel as you
seem to threaten. Doing so, however, will not get you the discovery you seek any faster, and
Google will seek redress for your failure to abide by Rule 45's mandate to avoid undue bllrrlen
on non-parties.
Sincerely,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
Jacob Veltman

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Glaser Weil

10250 Constellation Blvd.
19th Floor
Los. Angeles, CA 90067
310.553.3000 TEL
310.5562920 FAX

Aaron P. Allan

December 11, 2014

Direct Dial
310.282.6279

Direct Fax
310.785.3579

VIA FACSIMILE & EMAIL

Email
[e-mail]

David H. Kramer
Jacob T. Veltman
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Re:

LegaIZoom.com, Inc. v. Rocket Lawyer Incorporated- USDC Case No. 2:12-CV09942- Subpoena to Google- Meet and Confer Pursuant to USDC Local Rule 37-1

Dear Counsel:
I write pursuant to Rule 37 of the Federal Rules of Civil Procedure and Local Rule 37-1
regarding the. discovery dispute that has arisen by Google's objections and refusal to produce
documents responsive to a properly served subpoena. Pursuant to Local Rule 37-1, we are
providing this letter to identify each issue and/or discovery request in dispute, along with
Lega!Zoom's position on each issue and the terms of the discovery order to be sought. We are
also requesting, pursuant to that same local rule, that you participate in a telephonic conference
to be held within ten (10) days from the date of this letter as part of an attempt to settle our
differences.
Please find quoted below Lega!Zoom's document requests, Google's objections.
Following those requests and objections, we provide Lega!Zoom's analysis for the production of
the requested documents.

REQUEST NO. 1:
Any and all DOCUMENTS RELATING TO ROCKET LAWYER FREE
ADVERTISEMENTS BETWEEN January l, 2018 and present.

RESPONSE TO REQUEST NO. 1:
Google objects to this Request on the grounds that it seeks irrelevant information and is
overbroad and unduly burdensome, especially given that Google is a non-party. The demand for
"any and all" documents relating to Rocket Lawyer Free Advertisements is particularly
burdensome, and it may encompass a substantial amount of information, most of which is
~

1iT MEIHTAS LAW FIRMS WORLDWIDE

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David H. Kramer
Jacob T. Veltman
Wilson Sonsini Goodrich & Rosati
December 11, 2014 ·
Page2

cumulative and/or irrelevant to the claims and defenses asserted in this lawsuit The specified
relevant period of almost seven years renders the Request particularly overbroad and oppressive
given the claims and defenses asserted in this lawsuit relate to events beginning in late 2011.
Google further objects to this Request on the grounds that many of the documents
encompassed by the Request, such as communications between Google and Rocket Lawyer, are
necessarily in the possession, custody and control of Rocket Lawyer. As a nonparty, Google
should not be subjected to the burden and expense of searching for and producing these
documents until LegalZoom has exhausted reasonable means of obtaining them directly from
Rocket Lawyer.
Subject to the foregoing objections, Google responds to the Request as follows:
Google will not produce documents in response to this Request due to the issues
identified above. It is, however, open to a meet and confer process with LegalZoom to discuss
whether this Request can be appropriately revised, clarified and narrowed.
LEGALZOOM'S ANALYSIS
United States District Jlldge Gary F eess has ordered in the above matter that LegalZoom
be permitted to take third party discovery from Google, Inc. on a limited basis, and we have a
limited amount of time by which to complete this and other discovery in the case. By an email
sent on December 3, 2014, I provided you with a copy of Judge Feess' order. The subjects for
production identified in our silbpoena conformed to the narrow parameters of the Court's order.
We also provided, at your request, a copy of the protective order entered in this case.

In an attempt to reach a resolution of Google's objections, we agreed as part of a meet
and confer effort to limit the scope of the production to 111/l 0-: 12131/13, and we also provided
you with the Rocket Lawyer email addresses associated with the subject Google adwords
account that you requested. We further offered to "work with" Google to help alleviate any
burden associated with locating and producing responsive documents. For example, we agreed
to accept a declaration from a custodian of records in lieu of live testimony for authenticating
any responsive documents produced. I have indicated we are open to considering other
proposals, and yet you have failed to make such a proposal or otherwise identify the nature of the
burden that Google is facing.
In my email dated December 3, 2014, I made clear our desire that Google adhere to a
December 17, 2014, date for production, if possible, but I also made clear that we were willing to
provide more time as long as we get a clear indication that Google would be producing by some

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David H. Kramer
Jacob T. Veltman
Wilson Sonsini Goodrich & Rosati
December 11, 2014
Page3
set time period within our liinited discovery period. Part of the reason for our need to expedite
the production is that we have a January 16, 2015, deadline to complete all discovery in the case,
including a deposition of "Katherine K" who was a Google employee (based on email
communications with Rocket Lawyer) that we have requested be identified by Google.
Even though we have attempted to accommodate Google at every tum, Google has
refused to agree to the production of a single document, refused to propose any time period by
which they would produce documents, and has failed to agree to produce the identity of
Katherine K. Courts have ruled that "Vague, open-ended responses to some discovery requests,
which merely stated an intention to make some production at an unspecified date of party's own
choosing, was not a complete answer as required by rule and, therefore, would be treated as a
failure to .answer or respond." See, Silicon Knights, Inc. v. Epic Games. Inc., E.D.N.C.2012, 917
F.Supp.2d 503, affirmed 551 Fed.Appx. 646, 2014 WL 30865. Under the circumstances, and
without any commitment to produce by Google, we are left with no choice but to seek a court
order.
REQUEST NO. 2
Any and all COMMUNICATIONS between YOU and ROCKET LAWYER RELATING
TO ROCKET LAWYER FREE ADVERTISEMENTS between January 1, 2008 and present
RESPONSE TO REQUEST NO. 2:
Google objects to this Request on the grounds that it seeks irrelevant information and is
overbroad and unduly burdensome, especially given that Google is a non-party. The demand for
"any and all" communications is particularly burdensome, and it may encompass a substantial
amount of information, most of which is cumulative and/or irrelevant to the claims and defenses
asserted in this lawsuit The specified relevant period of almost seven years renders the Request
particularly overbroad and oppressive given the claims and defenses asserted in this lawsuit
relate to events beginning in late 2011.
Google further objects to this Request on the grounds that communications between
Google and Rocket Lawyer, are necessarily in the possession, custody and control of Rocket
Lawyer. As a nonparty, Google should not be subjected to the burden and expense of searching
for and producing these documents until LegalZoom has exhausted reasonable means of
obtaining them directly from Rocket Lawyer.
Subject to the foregoing objections, Google responds to the Request as follows:

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David H. Kramer
Jacob T. Veltman
Wilson Sonsini Goodrich & Rosati
December 11, 2014
Page4

Google will not produce documents in response to this Request due to the issues
identified above. It is, however, open to a meet and confer process with LegalZoom to discuss
whether this Request can be appropriately revised, clarified and narrowed. .

LEGALZOOM'S ANALYSIS
The same analysis set forth above with respect to Request No. 1 applies here.

REQUEST NO. 3
Any and all DOCUMENTS RELATING TO studies managed or performed by Google
Ventures for ROCKET LAWYER, to the extent those studies examine or concern ROCKET
LAWYER FREE ADVERTISEMENTS

RESPONSE TO REQUEST NO. 3:
Google objects to this Request on the grounds that it seeks irrelevant information and is
overbroad and unduly burdensome, especially given that Google is a non-party. The demand for
"any and all" documents relating to Rocket Lawyer Free Advertisements is particularly
burdensome, and it may encompass a substantial amount of information, most of which is
cumulative and/or irrelevant to the claims and defenses asserted in this lawsuit. The specified
relevant period of almost seven years renders the Request particularly overbroad and oppressive
given the claims and defenses asserted in this lawsuit relate to events beginuing in late 2011.
Google further objects to this Request on tbe grounds that many of the documents
encompassed by the Request (to the extent any such studies were managed or performed by
Google Ventures for Rocket Lawyer) are necessarily in the possession, custody and control of
Rocket Lawyer. As a nonparty, Google should not be subjected to the burden and expense of
searching for and producing these documents until LegalZoom has exhausted reasonable means
of obtaining them directly from Rocket Lawyer.
Subject to the foregoing objections, Google responds to the Request as follows:
Google will not produce documents in response to this Request due to the issues.
identified above. It is, however, open to a meet and confer process with LegalZoom to discuss
whether this Request can be appropriately revised, clarified and narrowed.

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David H. Kramer
Jacob T. Veltman
Wilson Sonsini Goodrich & Rosati
December II, 2014
Pages

LEGALZOOM'S ANALYSIS
The same analysis set forth above with respect to. Request No. 1 applies here.

REOUEST NO. 4

name,

. Any and all DOCUMENTS sufficient to show the complete
address, and telephone
number for Katherine K. whose email address is [e-mail]

RESPONSE TO REQUEST NO. 4
Google ·objects to this Request on the grounds it seeks irrelevant information. It is not
clear to Google why the identity of the person using the email address [e-mail]
bears on the claims and defenses asserted in this litigation.
Google will not produce documents in response to this Request due to the issues
identified above. It is, however, open to a meet and confer process with LegalZoom to discuss
whether this Request can be appropriately revised, clarified and explained.

LEGALZOOM'S ANALYSIS
As we have previously indicated to you through a letter sent to your office on December
3, 2014, Katherine K. was a Google employee who co=unicated to Rocket Lawyer that some
of the Rocket Lawyer advertisements at issue in this lawsuit violated Google's Offer Not Found
Policy. The nature and extent of those communications are relevant, and may be significant, in
putting Rocket Lawyer on notice that its advertisementS were pcitentially deceptive to consumers.
Katherine K's knowledge; understanding, and actions takc;n with regards to Rocket Lawyer's
violation of Google's Offer Not Found Policy are not within the possession of Rocket Lawyer,
and are matters that we may appropriately inquire about from her at a deposition once her
identity has been produced to us. We simply wish to take her deposition, and we need you to
provide her contact information so that we may properly issue a subpoena for that testimony.
Google has identified no basis for withholding that information.

As I have preViously indicated, we greatly prefer to work this out with Google on a
consensual basis rather than to involve the Court with expensive motion practice. However,
Google has failed to comply with the original subpoena and thus requires LegalZoom to conduct
a Rule 37-1 conference.

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David H. Kramer
Jacob T. Veltman
Wilson Sonsini Goodrich & Rosati

De=ber 11, .2014
Page6

Please respond to this letter by providing me with three different dates and times during
regular business hours over the next ten (10) days when you would be available to participate in
this Rule 37-1 conference. I look forward to hearing from yo1L
Sincerely,

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

APA:cc

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Case5:15-mc-80003-NC Document2 Filed01/05/15 Page54 of 62

Aaron Allan
From:
Sent:

To:
Cc:
Subject:

Aaron Allan
Thursday, December 18, 201410:56 Afli
'Veltman, Jacob'; '[e-mail]' .
Barak Vaughn; Fred Heather ·
LegalZoom v. Rocket Lawyer - Subpoenas to Google, Google Ventures and Michael Margolis

Dear Counsel,
This will confirm that we had a telephonic meet and confer discussion this morning that lasted approximately 15
minutes. During our discussion; you revealed the following:
1. Google is unwilling to produce communications with Rocket Lawyer because Google takes the position that such
documents.are already in Rocket Lawyer's possession, and there is no evidence that Rocket Lawyer engaged in
spoliation of evidence. When I asked about the burden associated with producing such materials, you refused to
provide me with any answer (or to even engage) on that subject. Instead you stated that the issue of burden would be
addressed by you only in opposing a·motion to compel, and that this was "not a deposition." When I attempted to
f~rther meet and confer on tha·t subject, you refused to engage.

2. As part of a compromise, Google would be willing to make a production of all documents relating to the study·
performed by Michael Margolis and Google Ventures, but would be unwilling to produce any other documents in
response to our subpoena (i.e., documents relating to Rocket Lawyer's free advertisements or communications with
Rocket Lawyer .concerning such advertisements). Google would also be willing to provide the la·st known contact
information for "Katherine K." but is not willing to produce any witness for deposition and would reserve the right to
object to the taking of any deposition of Katherine K. You also stated that Mr. Margolis would not be.appearing for
.; deposition.
3. You were uncertain whether any of Katherine K's emails or documents remain available at Google, but were told this
was "very unlikely" beeause she was terminated in 2012, well prior to the subpoena. You were therefore unwilling to
search for, or produce, Katherine K's emails or other documents.
4. You agreed to put your proposal into written form so that it may be considered by legalZoom.
Please provide me with Google's written proposal today, or you may alternatively confirm that.this email accurately
states that proposal. Absent hearing from you by the dose of business today, we will assume that Google is are refusing
to cooperate in discovery and we will proceed with drafting a joint stipulation for purposes of moving to compel.

Aaron P. Allan! Partner
Glaser Weil Fink H.oward Avchen & Shapiro LLP
10250 Constellation Blvd., 19th Floor, Los Angeles, CA 90067
Main: 310.5533000 1Dlrec:t:310.282.62791Fax:[phone]

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TAB 4

Case5:15-mc-80003-NC Document5 Filed01/20/15 Page1 of 10

1 DAVID H. KRAMER, State Bar No. 168452
JACOB T. VELTMAN, State Bar No. 247597
2 WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
3 650 Page Mill Road
Palo Alto, CA 94304-1050
4 Telephone: [phone]
Facsimile: [phone]
5 Email: [e-mail]
Email: [e-mail]
6
Attorneys for Nonparty
7 Google Inc.
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11
12 LEGALZOOM.COM, INC.,
Plaintiff,

13
14

v.

15 ROCKET LAWYER INC.,
16

Defendant.

17
18

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CASE NO.: 5:15-mc-80003-NC
NONPARTY GOOGLE INC.’S
OPPOSITION TO
LEGALZOOM.COM, INC.’S
MOTION TO COMPEL
COMPLIANCE WITH SUBPOENA
Before: Hon. Nathanael M. Cousins

19
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25
26
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GOOGLE INC.’S OPP. TO MOTION TO COMPEL

CASE NO.: 5:15-MC-80003-NC

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

PRELIMINARY STATEMENT
Nonparty Google Inc. (“Google”) has been dragged into a false advertising lawsuit

3

4 between LegalZoom.com, Inc. (“LegalZoom”) and Rocket Lawyer Inc. (“Rocket Lawyer”),
5 competitors in the online legal services business. To date, Google, its subsidiaries and its
6 employees have been bombarded with six subpoenas in the case – five from movant
1
7 LegalZoom, and another from its adversary, Rocket Lawyer. To its credit, Rocket Lawyer has

8 been mindful of Rule 45’s mandate to avoid undue burdens on nonparties. LegalZoom,
9 however, has ignored that basic principle. This motion continues its misguided discovery
10 campaign.
From what Google has gleaned about the case, LegalZoom alleges that Rocket Lawyer has

11

12 misleadingly advertised “free” legal services through Google’s advertising platform. Accordingly,
13 it seems reasonable to assume that any relevant documents relating to the disputed advertising (for
14 example, communications between Google and Rocket Lawyer) could be obtained from Rocket
15 Lawyer directly. But LegalZoom demanded “all” those documents from nonparty Google
16 instead. And LegalZoom went further, demanding Google produce “any and all documents”
17 relating to a usability analysis of the Rocket Lawyer website that a subsidiary, Google Ventures,
18 conducted for Rocket Lawyer. This, despite the fact that the analysis is unrelated to Rocket
19 Lawyer’s disputed advertising, and that Rocket Lawyer would have those documents.
Google repeatedly explained to LegalZoom that Google is an outsider to its years’ long

20

21 litigation with Rocket Lawyer, but LegalZoom expressed no interest in a meaningful meet-and22 confer process. When Google questioned why LegalZoom could not obtain the requested
23 information directly from Rocket Lawyer, LegalZoom had no response. When Google asked
24 LegalZoom for guidance to focus its search on specific exchanges and people, LegalZoom had no
25 response. And when Google offered as a compromise to produce all documents related to the
26
27
28

1

One of these subpoenas revised the compliance date of an earlier subpoena.

GOOGLE INC.’S OPP. TO MOTION TO COMPEL

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1

usability test, LegalZoom had no response for almost three weeks, then rejected Google’s offer

2

without explanation and filed this motion.

3

Even in its motion, LegalZoom offers no real explanation for why Google should search

4

for and produce documents that are undoubtedly in Rocket Lawyer’s possession, such as

5

correspondence between Google and Rocket Lawyer and work product Google Ventures provided

6

to it. Mere speculation that Rocket Lawyer might not have produced all of these documents

7

cannot overcome the clear authority precluding resort to subpoenas when inter-party discovery is

8

available.

9

Additionally, LegalZoom’s requests are overbroad and burdensome. It demands “any and

10

all” documents referencing Rocket Lawyer’s use of the word “free,” but has given no guidance on

11

how Google should search for these needles within its large haystack, and has not offered to

12

reimburse Google for the cost of that, or any, search.

13

Google respectfully requests that the Court deny LegalZoom’s Motion to Compel and

14

direct it to seek these documents through party discovery, if at all.

15

STATEMENT OF THE ISSUES

16

1. Should Google be compelled to produce the documents sought by LegalZoom Request

17
18

Nos. 1 and 2 relating to “Rocket Lawyer Free Advertisements”?
2. Should Google be compelled to produce the documents sought by LegalZoom Request

19

No. 3 relating to the usability analysis conducted by Google Ventures of the Rocket Lawyer

20

website?

21

BACKGROUND

22

A. The Underlying Litigation

23

On November 20, 2012, LegalZoom filed suit in the U.S. District Court for the Central

24

District of California against Rocket Lawyer Inc., a competitor in the online legal services

25

industry. See LegalZoom.com Inc. v. Rocket Lawyer Inc., No. 12-cv-9942 (C.D. Cal.). Although

26

Google is not a party to that litigation, it understands that LegalZoom has accused Rocket Lawyer

27

of false advertising. Specifically, LegalZoom alleges that Rocket Lawyer displayed messages

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GOOGLE INC.’S OPP. TO MOTION TO COMPEL

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through Google’s advertising platform that misleadingly suggest that various legal services

2

provided by Rocket Lawyer are “free.” See id., dkt. # 14 ¶¶ 10-17.

3

B. Google’s Relationship to the Litigation

4

Google operates an online advertising platform allowing countless businesses around the

5

world to display their advertisements to an online audience. LegalZoom itself utilizes the service

6

as does Rocket Lawyer. See id., dkt. # 14 ¶ 13.2 LegalZoom contends that a Google account

7

representative communicated with Rocket Lawyer about its use of the term “free,” although

8

LegalZoom has not shared any of that correspondence with Google. See Declaration of Jacob T.

9

Veltman (“Veltman Decl.”) ¶ 6.

10

Separately, back in 2011, Rocket Lawyer asked Google Ventures, a subsidiary of Google

11

Inc., to conduct a usability analysis of Rocket Lawyer’s website in an attempt to improve the

12

visitor experience. Users were asked for their impressions of the site, and Google Ventures

13

created a report for Rocket Lawyer setting forth the results, including user input regarding the use

14

of the term “free” on the site. Id. ¶ 6.

15

C. LegalZoom’s Subpoenas

16

After an extended discovery period in their case closed, LegalZoom and Rocket Lawyer

17

were given two more months to seek additional discovery from each other and several third

18

parties. Mot. at 2. Given this new life, LegalZoom has focused extensively on Google, serving

19

deposition and document subpoenas on Google Inc., its subsidiary, Google Ventures, Michael

20

Margolis (a Google Ventures employee who worked on the Rocket Lawyer report) and Katherine

21

Kramer (a former Google employee whom LegalZoom claims corresponded with Rocket Lawyer).

22

Veltman Decl. ¶¶ 2-3, 19 & Ex. 1. The subpoenas seek “all documents” relating to Rocket

23

Lawyer’s use of the word “free” in any advertising and “all documents” relating to Google

24

Ventures’ report. Id., Ex. 1.

25
26
27
28

2

Rocket Lawyer claims in the case that LegalZoom itself misused the Google advertising
service in a variety of ways. Rocket Lawyer served Google with a subpoena seeking information
about LegalZoom’s use of the service. Unlike LegalZoom, however, Rocket Lawyer engaged in
good faith meet-and-confer discussions with Google, narrowed its subpoena, agreed to seek
information directly from LegalZoom, and ultimately reached a compromise to resolve the
matter. Veltman Decl. ¶ 20.

GOOGLE INC.’S OPP. TO MOTION TO COMPEL

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LegalZoom’s subpoena to Google Inc. (the only one at issue in this motion) was served on

2

November 17, 2014, and called for Google to produce documents and attend a deposition the day

3

after Thanksgiving weekend, seven working days later. Id. ¶ 2 & Ex. 1. Similarly, the subpoena

4

directed to Mr. Margolis was served the day before Thanksgiving and purported to require him to

5

attend a deposition four business days later. Id.¶ 3.

6

Google and Mr. Margolis promptly served objections to both subpoenas on November 26,

7

the same day the Margolis subpoena was served. Id. ¶ 4 & Ex. 2. As noted, Google objected that

8

all relevant information sought was in the possession of Rocket Lawyer and that the subpoenas’

9

requests were overbroad and unduly burdensome. 3 On December 3, LegalZoom’s counsel

10

requested that the parties meet telephonically as soon as possible, and Google agreed to do so that

11

same day. Id. ¶¶ 5-6. During that initial call and in a subsequent email, Google’s counsel

12

explained its objections, but said it would confer with Google about what documents might be

13

available to be produced if LegalZoom would provide a copy of the Google Ventures’ report in

14

question. Id. ¶¶ 6-10. On Friday December 5, LegalZoom’s counsel provided a copy. Id. ¶ 11.

15

On December 9, 2014, LegalZoom’s counsel sent a letter to Google’s counsel demanding

16

that Google confirm within 24 hours that “the production is proceeding.” Id., Ex. 4. Google was

17

not “stonewalling,” as LegalZoom asserts in its motion. It had only been in possession of the

18

report in question for two business days.4

19

LegalZoom demanded that the parties meet and confer a second time. Id. ¶ 13. Google

20

agreed, and the parties’ counsel met telephonically on December 18, 2014. Id. ¶ 14. While

21

Google came prepared with an offer of compromise on the subpoena, it was immediately apparent

22

that LegalZoom was treating the call only as a procedural hurdle to a motion to compel. Id.

23

LegalZoom’s counsel did not address any of Google’s objections during the call, nor make any

24
25
26
27
28

3

Rocket Lawyer also served objections to the Margolis subpoena, objecting that it sought
documents relating to advertisements not at issue in the litigation, that it was overbroad as to
time, and that documents created and received by Mr. Margolis relating to Rocket Lawyer
belong to his employer, Google Ventures.
4

LegalZoom’s characterization of a delay of a few days to stonewalling rings especially
hollow given that LegalZoom failed to respond to Google’s December 18 offer of compromise
for almost three weeks.

GOOGLE INC.’S OPP. TO MOTION TO COMPEL

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productive suggestions or concessions, merely demands. Id. When Google’s counsel became

2

frustrated by the one-sided nature of the call, LegalZoom’s counsel demanded that Google submit

3

its compromise offer in writing. Id. Google complied with the demand and submitted a proposal

4

later that same day, offering to produce documents in its possession relating to Google Ventures’

5

report on the Rocket Lawyer website.5 Id., Ex. 7. LegalZoom did not respond for almost three

6

weeks. It then rejected the proposal without explanation, and without counter, stating only that it

7

would be filing this motion. Id., Ex. 8.

8

LegalZoom’s refusal to address Google’s objections continued after this motion was filed.

9

Id. ¶ 17. On January 8, 2015, LegalZoom’s counsel requested that the parties meet and confer

10

regarding its latest subpoena to Google Ventures. Id. ¶ 18. Google’s counsel responded that it

11

believed it would be more productive for LegalZoom’s counsel to address certain of Google’s

12

questions in writing given the prior meet-and-confer call. Id, Ex. 9. These questions included

13

“why communications between Google Ventures and Rocket Lawyer cannot be obtained from

14

Rocket Lawyer,” and “how you believe Google Ventures could effectively search for ‘all

15

documents’ relating to Rocket Lawyer Free Advertisements.” Id. To date, LegalZoom has not

16

responded at all.6 Id. ¶ 18.

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18
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20
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23
24
25
26
27
28

5

LegalZoom refers to this proposal as an “ultimatum” and a “take-it-or-leave-it offer.” Mot.
at 5. In fact, it was an ordinary proposal of the type contemplated by the meet-and-confer
process. Google’s counsel never described it as a final offer (let alone an ultimatum).
LegalZoom could have submitted a counter-proposal but chose to move to compel instead.
6

LegalZoom intimates that Google is “less than a third party” and biased against LegalZoom
due to certain connections with Rocket Lawyer. Mot. at 5. LegalZoom cites no authority
suggesting that a subpoenaed entity must have no connections to either party in order to be
treated as a nonparty for purposes of Rule 45(d) (indeed, subpoenas are typically issued to a
nonparty because of its connections to one of the parties). Further, the seeming impetus of the
discovery LegalZoom seeks – correspondence from Google telling Rocket Lawyer it had
violated Google’s advertising policies – demonstrates that Google and Rocket Lawyer operate at
arms’ length. In point of fact, Google has treated LegalZoom and Rocket Lawyer no differently
in discovery. Google objected to both parties’ subpoenas and made itself available to both to
meet and confer. Google and Rocket Lawyer were able to reach an agreement regarding Rocket
Lawyer’s subpoena because Rocket Lawyer acted reasonably in the meet-and-confer process. In
contrast to LegalZoom, Rocket Lawyer did not impose artificial deadlines, it explained why it
could not obtain the documents it was seeking from its adversary, and it ultimately agreed to
withdraw its request for deposition and the majority of its document requests in exchange for a
reasonable production from Google. Veltman Decl. ¶ 20.
GOOGLE INC.’S OPP. TO MOTION TO COMPEL

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CASE NO.: 5:15-MC-80003-NC

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1

ARGUMENT

2

LegalZoom’s motion disregards the significant limits that the Federal Rules place on

3

nonparty discovery. See Fed. R. Civ. P. 45(c)(1) (“A party or attorney responsible for issuing

4

and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense

5

on a person subject to the subpoena.”); Dart Indus. Co. v. Westwood Chem. Co., 649 F.2d 646,

6

649 (9th Cir. 1980); High Tech Med. Instrumentation, Inc. v. New Image Indus., Inc., 161 F.R.D.

7

86, 88 (N.D. Cal. 1995) (“nonparties subject to discovery requests deserve extra protection from

8

the courts”). “A court keeps this distinction between a party and nonparty in mind when it

9

determines the propriety of a nonparty’s refusal to comply with a subpoena by balancing the

10

relevance of the discovery sought, the requesting party’s need, and the potential hardship to the

11

party subject to the subpoena.” Beinin v. Ctr. for the Study of Popular Culture, No. C 06-2298,

12

2007 WL 832962, at *6 (N.D. Cal. Mar. 16, 2007) (internal quotation marks omitted). Here, that

13

balance tips decisively against LegalZoom.

14

possession of a party to the litigation and production by Google would be burdensome.

15

LegalZoom’s bid to compel such discovery should be rejected.

16

I.

The documents LegalZoom seeks are in the

LegalZoom’s Request No. 4 Is Moot

17

Request No. 4 in the LegalZoom subpoena seeks documents “sufficient to show the

18

complete name, address, and telephone number” for the Google employee using the email address

19

<[e-mail]>. In its letter dated December 18, 2014, counsel for Google offered to

20

provide this information once Google was able to confirm the identity and contact information of

21

that employee. Veltman Decl., Ex. 7. Google subsequently provided this information in an email

22

sent on January 9, 2015. Id. ¶ 19. LegalZoom then used the information to subpoena that now-

23

former employee. Id. Accordingly, Request No. 4 is moot.

24

II.

LegalZoom Can Obtain the Discovery It Seeks from Rocket Lawyer

25

In the discovery context, “there is simply no reason to burden nonparties when the

26

documents sought are in possession of the party defendant.” Nidec Corp. v. Victor Co. of Japan,

27

249 F.R.D. 575, 577 (N.D. Cal. 2007). Parties must “obtain discovery from one another before

28

burdening non-parties with discovery requests.” Soto v. Castlerock Farming & Transp., Inc., 282

GOOGLE INC.’S OPP. TO MOTION TO COMPEL

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Case5:15-mc-80003-NC Document5 Filed01/20/15 Page8 of 10

1

F.R.D. 492, 505 (E.D. Cal. 2012); cf. Fed. R. Civ. P. 26(b)(2)(C)(i) (court “must” limit discovery

2

if the discovery sought “can be obtained from some other source that is more convenient, less

3

burdensome, or less expensive”). Subpoenas to nonparties seeking information that could be

4

provided by a party are quashed routinely. See, e.g., Harris v. Kim, No. 05-cv-00003, 2013 WL

5

636729, at *2 (E.D. Cal. Feb. 20, 2013); Arista Records LLC v. Lime Grp. LLC, No. 10-cv-2074,

6

2011 WL 679490, at *2 (W.D. Wash. Feb. 9, 2011); Dibel v. Jenny Craig, Inc., No. 06-cv-2533,

7

2007 WL 2220987, at *2 (S.D. Cal. Aug. 1, 2007).

8

This sensible limit on the use of subpoenas squarely applies here. LegalZoom seeks

9

information about communications between Google and Rocket Lawyer and analysis performed

10

by Google Ventures for Rocket Lawyer. To the extent that information has any relevance to the

11

underlying case, it is readily obtainable from Rocket Lawyer. At no time during the meet and

12

confer process did LegalZoom provide any explanation for why it is seeking this information

13

from Google. And that failure continues in its motion. LegalZoom does not, for instance, show

14

that spoliation may have occurred, or that Rocket Lawyer has refused to produce this

15

information.

16

communications. [it has received] no assurance that Rocket Lawyer has produced all of the

17

communications.” Mot. at 10.

It simply says:

“LegalZoom has asked Rocket Lawyer for these same

18

Idle speculation that a litigation adversary has failed to produce all the documents it has

19

cannot justify subjecting a nonparty to the substantial expense and burden of producing that same

20

discovery. Any party in any case could speculate as LegalZoom does here. And if that were

21

enough to justify these subpoenas, the doctrine shielding non-parties from similar discovery

22

demands would be meaningless.

23

If LegalZoom has a quarrel with Rocket Lawyer’s production, its recourse lies in a

24

motion against its adversary, not in a discovery campaign against a nonparty. In the absence of

25

any showing that Rocket Lawyer has failed to produce or does not possess copies of relevant

26

documents, efforts to obtain those same documents from nonparty Google should be rejected.7

27
28

7

LegalZoom suggests in its motion that Google may possess documents that Rocket Lawyer
does not, such as internal Google communications about Rocket Lawyer’s use of the term “free”
in its advertising or on its web site. But despite repeated requests from Google, LegalZoom has
(continued...)
GOOGLE INC.’S OPP. TO MOTION TO COMPEL

-7-

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Case5:15-mc-80003-NC Document5 Filed01/20/15 Page9 of 10

1

III.

LegalZoom’s Requests Are Facially Overbroad and Unduly Burdensome

2

The demand for “all documents” is the bane of modern discovery practice. A demand

3

that a multi-national corporation with tens of thousands of employees produce “all documents”

4

on some general topic is invariably overbroad. See, e.g., D.R. Horton L.A. Holding Co. v. Am.

5

Safety Indem. Co., No. 10-cv-443, 2011 U.S. Dist. LEXIS 107090, at *10-11 (S.D. Cal. Sept. 21,

6

2011) (requests for “[a]ll documents” relating to various subjects were “inherently overbroad”)

7

Morgan v. Napolitano, No. 12-cv-1287, 2013 U.S. Dist. LEXIS 76295, at *9 (E.D. Cal. May 30,

8

2013) (“The Court finds plaintiff’s discovery request, specifically the use of the phrase ‘all

9

documents relating to,” to be both overbroad and unduly burdensome.”); Harrison v. Adams, No.

10

08-cv-1065, 2014 U.S. Dist. LEXIS 115524, at *13 (E.D. Cal. Aug. 19, 2014) (“In seeking ‘all

11

documents’ that contain the Defendants' first and middle names, the request is overly broad and

12

burdensome.”); J&M Assocs. v. Nat’l Union Fire Ins. Co., No. 06-cv-903, 2008 U.S. Dist.

13

LEXIS 97542, at *10-11 n.2 (request for “all documents . . .” was “on its face, overbroad”).

14

And so it is here. A demand that Google produce “any and all documents” related to “ROCKET

15

LAWYER FREE ADVERTISEMENTS” is deceptively complex, particularly when the supplied

16

definition of “ROCKET LAWYER FREE ADVERTISEMENTS” is layered in:

17
18
19

any marketing, advertising and/or promotion of ROCKET LAWYER and/or
ROCKET LAWYER PRODUCTS AND SERVICES, in which the term “free”
appears in the marketing, advertisement and promotion and/or in which the term
“free” is used as a keyword or other search term to trigger the marketing,
advertisement and/or promotion of ROCKET LAWYER and/or ROCKET
LAWYER PRODUCTS AND SERVICES.

20
21

Veltman Decl., Ex. 1 at 4.

22

The problem is magnified by Google’s nonparty status. After several years of litigation,

23

LegalZoom knows enough about its case to have specific incidents or specific people or both in

24
25
26
27
28

(...continued from previous page)
never explained why those documents would be at all relevant to its case. While LegalZoom
says that it seeks to show Rocket Lawyer was on notice of its improper use of the term “free,”
documents constituting such notice would necessarily be in Rocket Lawyer’s possession.
Internal discussion at Google would not bear on that question and would constitute the
inadmissible opinion of a lay witness. See, e.g., Evangelista v. Inlandboatmen’s Union of the
Pac., 777 F.2d 1390, 1398 n.3 (9th Cir. 1985).

GOOGLE INC.’S OPP. TO MOTION TO COMPEL

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CASE NO.: 5:15-MC-80003-NC

Case5:15-mc-80003-NC Document5 Filed01/20/15 Page10 of 10

1

mind that could help Google focus its search to relevant information. But Google does not have

2

the benefit of that litigation history. It does not know which people to talk to, what search terms

3

to use, or what time periods are of interest. And despite Google’s repeated requests, it was

4

unable to get that specificity and limitation from LegalZoom.

5

As they stand, LegalZoom’s demands would call upon Google to search far and wide –

6

through multiple customer service databases, account records and correspondence, employee

7

email and more – to find material that LegalZoom undoubtedly is not interested in. That is not

8

what Rule 45 contemplates. Mattel, Inc. v. Walking Mt. Prods., 353 F.3d 792, 813 (9th Cir.

9

2003) (affirming order quashing subpoena where “no attempt had been made to try to tailor the

10

information request to the immediate needs of the case”).

11

LegalZoom’s other demand – for “all documents” relating to the report that Google

12

Ventures prepared on the Rocket Lawyer website – is marginally easier because LegalZoom

13

focused Google’s search by providing a copy of the report. Even still, “all documents” relating

14

to the report, without custodial or meaningful time limitation, is too broad, as it could be read to

15

sweep in discussions about aspects of the report having nothing to do with use of the term “free,”

16

as well as mundane documents such as permission and payment slips for participants.

17

LegalZoom’s decision to ignore Google’s offer of December 18 for almost three weeks

18

and then to reject it without explanation or counter-proposal does not satisfy the Court’s meet-

19

and-confer requirements. Google submits that LegalZoom should be directed to meet and confer

20

again with Google, this time in good faith, to seek appropriate, reasonable limitations on the

21

discovery it has demanded.

22
23

CONCLUSION
For these reasons, LegalZoom’s Motion to Compel should be denied.

24
25

Respectfully submitted,
Dated: January 20, 2015

WILSON SONSINI GOODRICH & ROSATI
Professional Corporation

26
By:

s/ David H. Kramer_____________
David H. Kramer

27
28

Attorneys for Nonparty Google Inc.

GOOGLE INC.’S OPP. TO MOTION TO COMPEL

-9-

CASE NO.: 5:15-MC-80003-NC

TAB 5

Case5:15-mc-80003-NC Document5-1 Filed01/20/15 Page1 of 6

1 DAVID H. KRAMER, State Bar No. 168452
JACOB T. VELTMAN, State Bar No. 247597
2 WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
3 650 Page Mill Road
Palo Alto, CA 94304-1050
4 Telephone: [phone]
Facsimile: [phone]
5 Email: [e-mail]
Email: [e-mail]
6
Attorneys for Nonparty
7 Google Inc.
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11
12 LEGALZOOM.COM, INC.,
Plaintiff,

13
14

v.

15 ROCKET LAWYER INC.,
16

Defendant.

17
18
19

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CASE NO.: 5:15-mc-80003-NC
DECLARATION OF JACOB T.
VELTMAN IN SUPPORT OF
NONPARTY GOOGLE INC.’S
OPPOSITION TO
LEGALZOOM.COM, INC.’S
MOTION TO COMPEL
COMPLIANCE WITH SUBPOENA
Before: Hon. Nathanael M. Cousins

20
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24
25
26
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28
VELTMAN DECL. ISO GOOGLE INC.’S OPP. TO
MOTION TO COMPEL

CASE NO.: 5:15-MC-80003-NC

Case5:15-mc-80003-NC Document5-1 Filed01/20/15 Page2 of 6

1

I, Jacob Veltman, declare as follows:

2

1.

I am an attorney at Wilson Sonsini Goodrich & Rosati (“WSGR”), counsel for

3 nonparty Google Inc. (“Google”) in this case. I make this Declaration in support of Google’s
4 Opposition to Plaintiff LegalZoom.com, Inc.’s (“LegalZoom”) Motion to Compel Compliance
5 with Subpoena. I have personal knowledge of the facts set forth in this Declaration. If called as a
6 witness, I could and would testify competently to the matters set forth herein.
7

2.

Attached hereto as Exhibit 1 is a true and correct copy of a subpoena from

8 LegalZoom to Google in connection with its litigation against a company called Rocket Lawyer
9 Inc. (“Rocket Lawyer”) served on or about November 17, 2014.
10

3.

On November 26, 2014, LegalZoom served a similar subpoena on Michael

11 Margolis, a Seattle-based employee of Google Ventures, a Google subsidiary. The subpoena
12 purported to require Mr. Margolis to produce documents and attend a deposition on December 4,
13 2014. On December 8, 2014, LegalZoom served a second subpoena on Michael Margolis
14 renoticing the deposition noticed in the November 26 subpoena. On December 16, 2014,
15 LegalZoom served a similar subpoena on Google Ventures.
16

4.

On November 26, 2014, I served Google Inc.’s response to the subpoena it

17 received, a copy of which is attached as Exhibit 2, via email and my assistant served a copy via
18 mail. Mr. Margolis served responses to his subpoena that same day.
19

5.

I did not hear back from LegalZoom’s counsel regarding Google’s objections until

20 December 3, 2014. That day, Aaron Allan, counsel for LegalZoom, contacted my colleague
21 David Kramer and asked to speak about the subpoenas as soon as possible.
22

6.

I called Mr. Allan back later that afternoon to inquire about the underlying lawsuit

23 and why Google and a Google Ventures employee had been subpoenaed and specifically why
24 LegalZoom was broadly demanding that Google produce all documents relating to Rocket
25 Lawyer’s use of the word “free” in any advertising activity. Mr. Allan told me LegalZoom had
26 learned in discovery that employees of Google Ventures (specifically, Mr. Margolis), had
27 conducted a usability analysis for Rocket Lawyer of its website and that Google Ventures had
28 created a report for Rocket Lawyer setting forth the results (which included discussion of the use
VELTMAN DECL. ISO GOOGLE INC.’S OPP. TO
MOTION TO COMPEL

-1-

CASE NO.: 5:15-MC-80003-NC

Case5:15-mc-80003-NC Document5-1 Filed01/20/15 Page3 of 6

1

of the term “free” on the site). He also said that employees of Google Inc. had corresponded with

2

Rocket Lawyer regarding possible violations by Rocket Lawyer of Google advertising policies

3

over use of the word “free.”

4

7.

During the December 3 call, I highlighted several objections to the subpoenas,

5

specifically noting that (a) the documents sought by the subpoenas were presumptively in the

6

possession of Rocket Lawyer; and (b) absent mention of specific issues, specific individuals and

7

specific time periods, it would be extremely burdensome for Google to search throughout the

8

company for “any and all” documents in its possession relating any use by Rocket Lawyer of the

9

word “free” in its advertisements.

10

8.

Mr. Allan was unhelpful. He could not or would not explain why the documents

11

were being sought from Google instead of Rocket Lawyer and did not propose any meaningful

12

limitations on the subpoena’s demands by, for example, identifying specific custodians, or

13

locations to be searched.

14

9.

At the end of the call, I told Mr. Allan that I needed to confer with Google

15

regarding the subpoenas and determine what documents were available to be produced and what

16

the associated burden and cost would be before committing to anything further.

17

10.

The next day, December 4, 2014, I emailed Mr. Allan and requested that he provide

18

a copy of the report in question so that I could determine what relevance it had, if any, to the

19

litigation and what documents Google and Mr. Margolis might possess relating to the study.

20

11.

I received a copy of the report the next day. A few hours later, I received a

21

voicemail from Mr. Allan insisting that I provide a final answer as to what documents and

22

testimony Google and Mr. Margolis were willing to provide. As I had just received the material I

23

requested, I did not yet have an answer for him. I therefore responded to Mr. Allan via email:

24
25
26
27

Thanks for sending over the study. I received your voicemail. I don’t have an
update for you right now other than that we’re still discussing this internally. I
understand that you’re in somewhat of a hurry to wrap up discovery, and will get
back to you with a substantive response as soon as I can.
A true and correct copy of this email is attached hereto as Exhibit 3.

28

VELTMAN DECL. ISO GOOGLE INC.’S OPP. TO
MOTION TO COMPEL

-2-

CASE NO.: 5:15-MC-80003-NC

Case5:15-mc-80003-NC Document5-1 Filed01/20/15 Page4 of 6

1

12.

On December 9, 2014 (two business days later), Mr. Allan sent a letter to me in

2

which he demanded “confirmation from your office that the production is proceeding” within 24

3

hours. A true and correct copy of that letter is attached hereto as Exhibit 4. I replied that I

4

thought LegalZoom was being unreasonable. At this point only seven business days had elapsed

5

since the Margolis Subpoena had been served, and I had only received the report in question two

6

business days earlier. I explained that while I had conferred extensively with Google’s legal

7

department in the short period between the December 3 and December 9,

8

Google is an extremely large corporation and ascertaining what documents are
available to be produced, what the burden associated with that production would
be, and whether there are privacy or confidentiality concerns relating to those
documents takes time, particularly given that Google is a third party and had no
familiarity with this dispute until our conversation last week. . . . [W]e will
respond to you as soon as possible, and within a reasonable time frame.

9
10
11
12

A true and correct copy of my letter to Mr. Allan is attached hereto as Exhibit 5.

13

13.

Rather than afford Google a few additional days to evaluate LegalZoom’s

14

requests, Mr. Allan responded with a letter demanding that we conduct a formal meet-and-confer

15

call required under the Central District of California’s local rules as a precursor to a motion to

16

compel.

17

14.

Although the Central District of California’s rules were inapplicable given

18

Google’s residence here, Mr. Kramer and I met with Mr. Allan telephonically on December 18 at

19

his insistence. I attempted to discuss Google’s remaining objections and what Google was

20

willing to produce, but Mr. Allan would not address our objections or offer any compromise. It

21

felt as if Mr. Allan was only participating in the call as a procedural prerequisite to filing a

22

motion to compel. When Mr. Kramer expressed our frustration at the one-sided nature of the

23

discussion, Mr. Allan demanded that we submit a proposal detailing the information Google was

24

willing to provide, and then ended the call. He followed immediately with an email containing a

25

slanted summary of the call, again offering no substantive response to the concerns we had

26

raised.

27
28

15.

I responded that day with a letter in which I rejected Mr. Allan’s summary of the

call. A true and correct copy of that letter is attached hereto as Exhibit 6.

VELTMAN DECL. ISO GOOGLE INC.’S OPP. TO
MOTION TO COMPEL

-3-

CASE NO.: 5:15-MC-80003-NC

Case5:15-mc-80003-NC Document5-1 Filed01/20/15 Page5 of 6

1

16.

Several hours later, I sent a second letter to Mr. Allan containing the proposal he

2

demanded. A true and correct copy of that letter is attached hereto as Exhibit 7. I explained that

3

although we believed the Subpoenas were objectionable for numerous reasons, Google would be

4

willing to search for documents relating to the Google Venture report if it would resolve the

5

subpoenas and avoid motion practice. I also explained that Google would provide the contact

6

information for the person using the <[e-mail]> email address (without any

7

corresponding concession from LegalZoom) once it was able to confirm the identity of that

8

person. Although Mr. Allan had constantly imposed deadlines and demanded immediate

9

responses from Google, he ignored our proposal for nearly three weeks.

10

17.

On January 5, 2015, Mr. Allan informed me via a terse email that our proposed

11

compromise was rejected. He did not provide any explanation for the rejection, nor did he

12

submit a counter-proposal. A true and correct copy of that email is attached hereto as Exhibit 8.

13

Later that day, Mr. Allan filed this motion to compel.

14

18.

On January 8, 2015, Mr. Allan’s colleague Barak Vaughn suggested via email

15

that we meet and confer regarding yet another subpoena LegalZoom had served, this time to

16

Google Ventures. I responded via email that given the prior meet and confer, we believed it

17

would be helpful if Messrs. Allan and Vaughn addressed Google Ventures’ core objections in

18

writing before having another call. A true and correct copy of that email is attached hereto as

19

Exhibit 9. To date, LegalZoom’s counsel has not responded.

20

19.

On January 9, 2015, I provided the name and contact information to Mr. Allan via

21

email of Katherine Kramer, the former Google employee who had communicated with Rocket

22

Lawyer using the email address <[e-mail]>. Due to privacy considerations, a

23

copy of that email is not attached hereto. On January 13, 2015, LegalZoom’s counsel served me

24

with a copy of a subpoena addressed to Ms. Kramer.

25

20.

LegalZoom’s adversary, Rocket Lawyer, also served a subpoena on Google in

26

this matter. Like LegalZoom, Rocket Lawyer asked for information about the advertising by its

27

counterpart on Google’s service. In response to similar objections from Google regarding

28

overbreadth and burden, Rocket Lawyer’s counsel narrowed the requests, specified what it was

VELTMAN DECL. ISO GOOGLE INC.’S OPP. TO
MOTION TO COMPEL

-4-

CASE NO.: 5:15-MC-80003-NC

Case5:15-mc-80003-NC Document5-1 Filed01/20/15 Page6 of 6

1

seeking and agreed to a compromise resolution. In its motion, LegalZoom insinuates that

2

Google is "stonewalling" LegalZoom because of connections between Google Ventures and

3

Rocket Lawyer. That is baseless. Rocket Lawyer has received no more favorable treatment

4

from Google in this process than that available to LegalZoom. Any difference in outcome is

5

owing to Rocket Lawyer's good faith effort to meet and confer, contrasted with LegalZoom's

6

refusal to do so.

7
8

I declare under penalty of perjury that the foregoing is true and correct. Executed this 20th
day of January 2015 at Palo Alto, California.

9
10
11
12
13
14
15
16
17
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22
23
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VELTMAN DELL. ISO GOGGLE INC.'S OPP. TO
MOTION TO COMPEL

-5-

CASE No.: 5:15-MC-80003-NC

Case5:15-mc-80003-NC Document5-2 Filed01/20/15 Page1 of 8

EXHIBIT 1
TO THE DECLARATION OF
JACOB T. VELTMAN

Case5:15-mc-80003-NC Document5-2 Filed01/20/15 Page2 of 8
AO 88A (Rev. 02/14) Subpoena to Testify at a Deposition in a Civil Action

Ur1ITED STATES DISTRICT COURT
for the
CENTRAL District of CALIFORNIA
LEGALZOOM.COM, INC.
)
)

Plainti~J`~

)

V.

Civil Action No. 2: 12 - CV- 0 9 94 2 -GAF -AGR

)

ROCKET LAWYER INCORPORATED

)

Defendant

)

SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL ACTION
GOOGLE, INC. c/o CSC Lawyers Incorporating Service, 2710 Gateway Oaks, Suite
To: 150N, Sacramento, CA 95833.
(Name of person to whom this subpoena is dtrected)

O Testimony: YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a
x
deposition to be taken in this civil action. If you are an organization, you must designate one or more officers, directors,
or managing agents, or designate other persons who consent to testify on your behalf about the following matters, or
those set forth in an attachment: Custodian of Records to authenticate the documents
requested.
Place: Veritext-San Francisco, 101 Montgomery Date and Time:
Street Suite 450 San Francisco .CA 94104 December 1 2014; 3:00 p.m.
The deposition will be recorded by this method: Stenographically and Videotaped
® Production: You, or your representatives, must also bring with you to the deposition the following documents,
electronically stored information, or objects, and must permit inspection, copying, testing, or sampling of the
material: See Attachment 11 1"

The following provisions of Fed. R. Civ. P. 45 are attached — Rule 45(c), relating to the place of compliance;
Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to
respond to this subpoena and the potential consequences of not doing so.
Date: 11 / 14 / 14

CLERK OF COURT
OR
Signature of Clerk or Deputy Clerk

signature

The name, address, e-mail address, and telephone number ofthe attorney rep
me ofparry) LecialZoom. com ,
Inc .
, who issues or requests this subpoena, are:
Fred Heather; GLASER WEIL, 10250 Constellation Blvd., 19th Floor, Los Angeles, CA 90067; (310)5533000

Notice to the person who issues or requests this subpoena
If this subpoena commands the production of documents, electronically stored infotmation, or tangible things before
trial, a notice and a copy of the subpoena must be served on each party in this case before it is served on the person to
whom it is directed. Fed. R. Civ. P. 45(a)(4).
AO-89A

Case5:15-mc-80003-NC Document5-2 Filed01/20/15 Page3 of 8

AO 88A (Rev. 02/14) Subpoena to Testify at a Deposition in a Civil Action (Page 2)

Civil Action No.
PROOF OF SERVICE
(Thfs section should not befiled with the court unless required by Fed R. Civ. P. 45.)
I received this subpoena for (name ofindividual and title, if any)
ori (date)
= I served the subpoena by delivering a copy to the named individual as follows:
on (date)

; or

= I returned the subpoena unexecuted because:

Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
tendered to the witness the fees for one day's attendance, and the mileage allowed by law, in the amount of
$

My fees are $

for travel and $

for services, for a total of $

I declare under penalty of perjury that this information is true.
Date:
Server's signature

Printed name and title

Server's address

Additional information regarding attempted service, etc.:

Case5:15-mc-80003-NC Document5-2 Filed01/20/15 Page4 of 8

AO 88A (Rev. 02/14) Subpoena to Testify at a Deposition in a Civil Action (Page 3)

Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
(c) Place of Compliance.

(1) For a Trial, Hearing, or Deposltion. A subpoena may command a
person to attend a trial, hearing, or deposition only as follows:
(A) within 100 miles of where the person resides, is employed, or _
regularly transacts business in person; or
(B) within the state where the person resides, is employed, or regularly
transacts business in person, if the person
(i) is a party or a party's officer; or
(ii) is cwmmanded to attend a trial and would not incur substantial
expense.
(2) For Other Discovery. A subpoena may command:
(A) production of documents, electronieally stored information, or
tangible things at a place within 100 miles of where the person resides, is
employed, or regularly transacts business in person; and
(B) inspeetion of premises at the premises to be inspected.
(d) Protecting a Person Subject to a Subpoena; Enforcement.

(1) Avoiding llndue Burden or Expense; Sanctions. A party or attorney
responsible for issuing and secving a subpoena must take reasonable steps
to avoid imposing undue burden or expense on a person subject to the
subpoena. The court for the district where compliance is required must
enforce this duty and impose an appropriate sanction—which may include
lost eamings and reasonable attomey's fees—on a party or attomey who
fails to comply.
(2) Command to Produce Materfals or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or to
permit the inspection of premises, need not appear in person at the place of
production or inspection unless also commanded to appear for a deposition,
hearing, or trial.
(B) Objections. A person conunanded to produce documents or tangible
things or to permit inspection may serve on the party or attomey designated
in the subpcena a written objection to inspecting, copying, testing, or
sampling any or all of the materials or to inspecting the premises — or to
producing electronically stored information in the form or fotms requested.
The objection must be served before the earlier of the time speoified for
compliance or 14 days after the subpoena is served. If an objection is made,
the following rules apply:
(i) At any time, on notice to the commanded person, the serving party
may move the court for the district where compliance is required for an
order compelling produetion or inspection.
(ii) These acts may be required only as directed in the order, and the
order must protect a person who is neither a party nor a party's officer from
significant expense resulting from compliance.

(3) Quashing or Modifyfng a Subpoena.
(A) When Requfred. C+n timely motion, the court for the district where
compliance is required must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits
specified in Rule 45(c);
(iii) requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by a
subpcena, the court for the district where compliance is require,d may, on
motion, quash or modify the subpcena if it requires:

(i) disclosing a trade secret or other cwnfidential research, development,
or commercial infotmation; or
(ii) disclosing an unretained expert's opinion or information that does
not describe specific occurrences in dispute and results from the expert's
study that was not requested by a party.
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(d)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under specified
conditions if the serving party:
(i) shows a substantial need for the testimony or material that cannot be
otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably compensated.
(e) Duties in Responding to a Subpoena.

(1) Producing Documents or ElectronicaUy Stored Information These
procedures apply to producing documents or electronically stored
information:
(A) Documents. A person responding to a subpoena to produce documents
must produce them as they are kept in the ordinary course of business or
must organize and label them to con-espond to. the categories in the demand.
(B) Form for Produeing Eleetronically Stored Informatfon Not Specrfied.
If a subpoena does not specify a form for producing electronically stored
information, the person responding must produce it in a fotm or forms in
which it is ordinarily maintained or in a reasonably usable form or forms.
(C) Electronically Stored Informatfon Produced in Only One Form. The
person responding need not produce the same electronically stored
information in more than one form.
(D) Inaccessfble Electronically Stored Informatton. The person
responding need not provide discovery of electronically stored information
from sources that the person identifies as not reasonably accessible because
of undue burden or cost. On motion to compel discovery or for a protective
order, the person responding must show that the information is not
reasonably accessible because of undue burden or cost. If that showing is
made, the court may nonetheless order discovery from such sources if the
requesting party shows good cause, considering the linritations of Rule
26(b)(2)(C). The cvurt may specify cvnditions for the discovery.

(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed information
under a claim that it is privileged or subject to protection as trial•preparation
material must:
(i) expressly make the claim; and
(ii) dcscribe the nature of the withheld documents, eommunications, or
tangible things in a manner that, without revealing information itself
privileged or protected, wi11 enable the parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as
trial-preparation material, the person making the claim may notify any party
that received the information of the claim and the basis for it. After being
notified, a party must promptly rctum, soquester, or destroy the specified
information and any copies it has; must not use or disclose the information
until the claim is resolved; must take reasonable steps to retrieve the
information if the party disclosed it before being notified; and may promptly
present the infotmation under seal to the cwurt for the district where
compliance is required for a detennination of the claim. The person who
produced the information must preserve the information until the claim is
resolved.
(g) Contempt.
The court for the district where compliance is required—and also, after a
motion is transferred, the issuing court--may hold in contempt a person
who, having been served, fails without adequate excuse to obey the
subpcena or an order related to it.

For access to subpoena materials, see Fed. R Civ. P. 45(a) Committee Note (2013).

Case5:15-mc-80003-NC Document5-2 Filed01/20/15 Page5 of 8
>

1

ATTACHMENT 1

2

DEFINITIONS

3

A.

"YOU," "YOUR" and "GOOGLE" mean Google, Inc. located at 1600

4

Amphitheatre Way, Mountain View California 943043, and its current and former

5

parents, subsidiaries, affiliates, predecessors, successors, employees, managers,

6

officers, directors, partners, agents, representatives, attorneys, or anyone acting or

7

purporting to act on its behalf or under its control.

8
9

lo
11
a
J
N J

"LEGALZOOM" and "PLAINTIFF" mean and refer, without limitation,

I to Plaintiff LegalZoom.com, Inc., its attorneys, agents and all PERSONS, as defined
I below, acting on its behalf.
C.

"ROCKET LAWYER" and "DEFENDANT" mean and refer, without

12

,
N

limitation, to Rocket Lawyer Incorporated, its employees, attorneys, agents,

13

independent contractors, officers, directors, shareholders, representatives, and all

14

1
.A 0
o~
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B.

PERSONS or entities acting on its behalf.

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D.

"ROCKET LAWYER FREE ADVERTISEMENTS" mean and refer to

16

any marketing, advertising and/or promotion of ROCKET LAWYER and/or

17

ROCKET LAWYER PRODUCTS AND SERVICES, in which the term "free"

18

appears in the marketing, advertisement and promotion andlor in which the term

19

"free" is used as a keyword or other search term to trigger the marketing,

20

advertisement and/or promotion of ROCKET LAWYER and/or ROCKET LAWYER

21

PRODUCTS AND SERVICES.

22

E.

"COMMUNICATION" includes, without limitation, communications

23

I by whatever means transmitted (i.e., whether oral, written, electronic, or other

24

methods are used), as well as any note, memorandum, or other document record

25

I thereof.

26

F.

"DOCUMENT" has the full meaning ascribed to it by the Federal Rules

27

I of Civil Procedure and the Federal Rules of Evidence, and includes without limitation

2s

I any writing, COMMUNICATION, correspondence or tangible thing on which
ATTACHMENT I

966815

Case5:15-mc-80003-NC Document5-2 Filed01/20/15 Page6 of 8

I information can be stored or from which information can be retrieved, whether signed
2 or unsigned, in draft or final form, an original or a copy, including electronic formats.
3

G. "CONSTITUTING," "CONCERNING," "REFERRING TO,"

a"RELATED TO," and "RELATING TO," whether used alone or in conjunction with
5 one another, are used in their broadest sense and shall mean and refer to, without
6 limitation, constituting, summarizing, memorializing, or directly or indirectly
7 referring to, discussing, perta.ining to, regarding, evidencing, supporting,
g contradicting, containing information regarding, ernbodying, comprising, identifying,
9 stating, reflecting, dealing with, commenting on, responding to, describing, analyzing,
lo or in any way pertinent to the subject matter of the type of DOCUMENTS sought.
11

H.

"PERSON" means an individual, firm, partnership, corporation,

a

(A o

12 proprietorship, association, governmental body, or any other organization or entity.

~( ~-

13

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la appropriate. The terms "and" as well as "or" shall be construed either disjunctively or

~a

15 conjunctively as necessary to bring within the scope of the inquiry or request any

y~

16 information which might otherwise be construed to be outside of the scope.

o

~=

1.

17

J.

,~
•
«
»
Each and «any,~Include both each and «
every» whenever

«

"Or," "and," and "and/or" shall be interpreted both conjunctively and

18 disjunctively, so as to be inclusive rather than exclusive, and each term shall include
19 the other whenever such construction will serve to bring within the scope of a request
2o documents, information or tangible things which would not otherwise be within its
21 scope, and these terms shall not be interpreted to exclude any information, documents
22 or tangible things otherwise within the scope of a request.
23

K.

The present tense of any verb shall include the past tense, and vice versa,

24 whenever such construction will serve to bring within the scope of a request
25 documents, information or tangible things which would not otherwise be within its
26 scope.
27

L.

The singular shall include the plural and vice versa, and words in one

28 gender shall include the other gender.
ATTACHMENT I
966815

Case5:15-mc-80003-NC Document5-2 Filed01/20/15 Page7 of 8

1
2

REOUEST TO PRODUCE DOCUMENTS
Pursuant to Federal Rule of Civil Procedure 34 et seq., YOU are obligated to

3 produce at the time and place identified above, on the designated date, those
4 DOCUMENTS or COND4UNICATIONS responsive to the requests listed below:
5 REOUEST TO PRODUCE DOCUMENTS NO.1
6

Any and all DOCUMENTS RELATING TO ROCKET LAWYER FREE

7 ADVERTISEMENTS between January 1, 2008 and present.
g REOUEST TO PRODUCE DOCUMENTS NO. 2
9

Any and all CONEVIUNICATIONS between YOU and ROCKET LAWYER

lo RELATING TO ROCKET LAWYER FREE ADVERTISEMENTS between January

~
~0

11 1, 2008 and present.
12 REOUEST TO PRODUCE DOCUMENTS NO. 3

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Any and all DOCUMENTS RELATING TO studies managed or performed by
, 13
14 Google Ventures for ROCKET LAWYER, to the extent those studies examine or
t

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15 concern ROCKET LAWYER FREE ADVERTISEMENTS.

N~

16 REOUEST TO PRODUCE DOCUMENTS NO. 4

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17

Any and all DOCUMENTS sufficient to show the complete name, address, and

18 telephone number for Katherine K. whose email address is Katherine.k(~ gle.com
a,goo
19
20
21
22
23
24
25
26
27
28
3

ATTACHMENT 1
966815

Case5:15-mc-80003-NC
SACRAMENTO LEGAL SUPPORT, INC.
SACRAMENTO FIELD ACCOUNT

nfRCl.O4RHOR'.

Document5-2 Filed01/20/15 Page8 of 8

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1814 1 STREET
SACRAMENTO, CA 95814

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FOR DEPOSIT ONLY

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__________--------- - -- -►I'04539211' 1:121000358i: 00037327312411'

Case5:15-mc-80003-NC Document5-3 Filed01/20/15 Page1 of 10

EXHIBIT 2
TO THE DECLARATION OF
JACOB T. VELTMAN

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Case5:15-mc-80003-NC Document5-4 Filed01/20/15 Page1 of 2

EXHIBIT 3
TO THE DECLARATION OF
JACOB T. VELTMAN

Case5:15-mc-80003-NC Document5-4 Filed01/20/15 Page2 of 2

From:
Sent:
To:
Subject:

Veltman, Jacob
Friday, December 05, 2014 6:40 PM
Aaron Allan
LegalZoom v. Rocket Lawyer

Aaron,
Thanks for sending over the study. I received your voicemail. I don’t have an update for you right now other than that
we’re still discussing this internally. I understand that you’re in somewhat of a hurry to wrap up discovery, and will get
back to you with a substantive response as soon as I can.
Best,
Jake

1

Case5:15-mc-80003-NC Document5-5 Filed01/20/15 Page1 of 4

EXHIBIT 4
TO THE DECLARATION OF
JACOB T. VELTMAN

Case5:15-mc-80003-NC Document5-5 Filed01/20/15 Page2 of 4

,~"

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

December 9, 2014

VIA FACSIMILE &EMAIL

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

David H. Kramer
Jacob T. Veltman
Wilson Sonsini Goodrich &Rosati
650 Page Mill Road
Palo Alto, CA 94304
Re:

LegalZoom.com,Inc. v. Rocket Lawyer Incorporated — USDC Case No. 2:12-CV09942 —Subpoena to Google

Dear Counsel:
I write in response to your November 26, 2014 Responses and Objections regarding the
deposition subpoena served on Google, Inc., and further to the various communications that I
have had with Jacob Veltman to meet and confer regarding those objections.
United States District Judge Gary Feess has ordered in the above matter that LegalZoom
be permitted to take third party discovery from Google, Inc. on a limited basis, and we have a
limited amount of time by which to complete this and other discovery in the case. By an email
sent on December 3, 2014, I provided you with a copy of Judge Feess' order. The subjects for
production identified in our subpoena conformed to the narrow parameters of the Court's order.
We also provided, at your request, a copy of the protective order entered in this case.
Notwithstanding that any denial by Google of the requested information would be
inconsistent with the Court's Order, we agreed as part of a meet and confer effort to limit the
scope of the production to 1/1/10 — 12/31/13, and we also agreed to provide you with some
information that you ret~uested to assist your search: (a)the Rocket Lawyer email addresses
associated with the subject Google adwords account; and (b)the customer ID number, bank
reference number or URL transfer number/address associated with the adwords account. In
reviewing our documents, we have found the following responsive emails addresses:
[e-mail]
[e-mail]
[e-mail]
ITi MERITAS Lr1W FIRMS WORLDWIpE

976758.1

Case5:15-mc-80003-NC Document5-5 Filed01/20/15 Page3 of 4
David H. Kramer
Jacob T. Veltman
Wilson Sonsini Goodrich &Rosati
December 9, 2014
Page 2

[e-mail]
We were unable to locate any customer ID number, bank reference number or URL transfer
number/address associated with the adwords account, but I offered to "work with" Google to
help alleviate any burden associated with locating and producing responsive documents. For
example, we agreed to accept a declaration from a custodian of records in lieu of live testimony
for authenticating any responsive documents produced. We are open to considering other
proposals.
In my email dated December 3, 2014, I made clear our desire that Google adhere to the
December 17, 2014, date for production, if possible. Part of the reason for our need to expedite
the production is that we have a January 16, 2015, deadline to complete all discovery in the case,
including a deposition of"Katherine K" who was a Google employee (based on emails
communications with Rocket Lawyer)that we have requested be identified by Google.
Katherine K. was an instrumental party regarding some of the Rocket Lawyer advertisements
that are at issue in this lawsuit and that violated Google's Offer Not Found Policy. Katherine
K's knowledge, understanding, and actions taken with regards to Rocket Lawyer's violation of
Google's Offer Not Found Policy are not within the possession of Rocket Lawyer, and are
matters that we may appropriately inquire about from her at a deposition once her identity has
been produced to us.
We remain willing to work with your firm and with Google to extend out the December
17 production date, but only if I receive some confirmation from your office that the production
is proceeding and that Google is not intending to rely upon its objections to avoid producing
responsive documents and information. During our December 3 telephone call, Mr. Veltman
agreed to get back to me on this subject by December 5. On December 5, Mr. Veltman emailed
me to tell me that he had no update, and that he was still discussing the issue internally and
would respond "as soon as [he] can."
Given our January 16, 2015, deadline to complete all discovery, we must insist upon a
response by elope of business tomorrow, December 10, 2014, confirming Google's intentions
with respect to the subpoena, or we will have no alternative but to begin the process to pursue a
motion to compel. Because the original subpoena provided adequate notice under the rules, and
was limited in scope to the subjects allowed by the Court order, we would move with respect to
that original subpoena and would not have a need to serve any new subpoena (as I mistakenly
indicated we planned to do in my email earlier today). We would also seek monetary sanctions
based on the legal fees required to bring the motion.
As I previously indicated, we greatly prefer to work this out with Google on a consensual
basis rather than to involve the Court with expensive motion practice. But absent hearing from

976758.1

Case5:15-mc-80003-NC Document5-5 Filed01/20/15 Page4 of 4
David H. Kramer
Jacob T. Veltman
Wilson Sonsini Goodrich &Rosati
December 9, 2014
Page 3

you by tomorrow on this subject, you leave us with no alternative but to proceed with motion
practice. I look forward to hearing from you as soon as possible on this subject.
Sincerely,

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

APA:cc

976758.1

Case5:15-mc-80003-NC Document5-6 Filed01/20/15 Page1 of 3

EXHIBIT 5
TO THE DECLARATION OF
JACOB T. VELTMAN

Case5:15-mc-80003-NC Document5-6 Filed01/20/15 Page2 of 3

December 11, 2014
Via E-Mail
Aaron P. Allan
Glaser Weil Fink Howard Avchen & Shapiro LLP
10250 Constellation Blvd.
19th Floor
Los Angeles, CA 90067
Re:

LegalZoom.com, Inc. v. Rocket Lawyer Incorporated – USDC Case No. 2:12CV-09942 – Subpoena to Google

Dear Aaron:
I write in response to your letter dated December 9, 2014. I frankly do not appreciate the
false urgency and unreasonable, artificial deadlines you and your colleagues continue to inject in
this routine discovery process.
Although the Court authorized additional discovery on November 10, you waited until
the day before Thanksgiving to serve Mr. Margolis with a subpoena, and that subpoena
demanded his appearance at a deposition only four business days later despite the fact that
discovery does not close until January 16, 2015. You similarly waited a week to serve Google
with a second subpoena yet demanded that it produce documents the day after Thanksgiving
weekend. After Google timely asserted objections despite your unnecessarily compressed time
frame, you waited a week before communicating further with my office, at which point you
insisted that we call you back that afternoon. After I complied and discussed the subpoena with
you that day, you provided a copy of the study necessary for us to evaluate your requests on
Friday, December 5. Then on December 9, you demanded that I “confirm[] that the production
is proceeding.”
As I communicated to you on Friday, we are continuing to discuss your subpoena with
Google and will provide you with a substantive response regarding which documents we are
willing to produce as soon as possible. Your insistence that we conclude this process within
three business days of having received the study at issue is simply unreasonable. Google is an
extremely large corporation and ascertaining what documents are available to be produced, what
the burden associated with that production would be, and whether there are privacy or
confidentiality concerns relating to those documents takes time, particularly given that Google is
a third party and had no familiarity with this dispute until our conversation last week.
Although your subpoenas seek documents that are largely in the possession of Rocket
Lawyer Inc. and that therefore should have been sought from Rocket Lawyer, I assure you that
they have not been forgotten or ignored and that we will respond to you as soon as possible, and

Case5:15-mc-80003-NC Document5-6 Filed01/20/15 Page3 of 3

Aaron P. Allan
December 11, 2014
Page 2
within a reasonable time frame. I realize you would prefer to receive Google’s production by
December 17, but that may not be practicable. Yours are certainly not the only subpoenas
currently being processed by Google at this time, and any firm expectation that discovery from
Google would be concluded in less than a month from the service of your subpoenas is, again,
unreasonable. This case has been pending for more than two years. If there is any urgency in
your discovery demands, it is due to your decision to wait until the eleventh hour to seek
discovery from Google.
You may opt to short-circuit the meet and confer process and move to compel as you
seem to threaten. Doing so, however, will not get you the discovery you seek any faster, and
Google will seek redress for your failure to abide by Rule 45’s mandate to avoid undue burden
on non-parties.
Sincerely,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
Jacob Veltman

Case5:15-mc-80003-NC Document5-7 Filed01/20/15 Page1 of 2

EXHIBIT 6
TO THE DECLARATION OF
JACOB T. VELTMAN

Case5:15-mc-80003-NC Document5-7 Filed01/20/15 Page2 of 2

Case5:15-mc-80003-NC Document5-8 Filed01/20/15 Page1 of 3

EXHIBIT 7
TO THE DECLARATION OF
JACOB T. VELTMAN

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Case5:15-mc-80003-NC Document5-8 Filed01/20/15 Page3 of 3

Case5:15-mc-80003-NC Document5-9 Filed01/20/15 Page1 of 4

EXHIBIT 8
TO THE DECLARATION OF
JACOB T. VELTMAN

Case5:15-mc-80003-NC Document5-9 Filed01/20/15 Page2 of 4

From:
Sent:
To:
Cc:
Subject:

Aaron Allan <[e-mail]>
Monday, January 05, 2015 12:02 PM
Veltman, Jacob
Barak Vaughn; Fred Heather; Kramer, David
RE: LegalZoom v. Rocket Lawyer - Subpoenas to Google, Google Ventures and Michael
Margolis

Jake,
LegalZoom is rejecting your proposal, and we will be pursuing a motion to compel.

Aaron P. Allan| Partner

Glaser Weil Fink Howard Avchen & Shapiro LLP
10250 Constellation Blvd., 19th Floor, Los Angeles, CA 90067
Main: 310.553.3000 |Direct: 310.282.6279|Fax: [phone]

From: Veltman, Jacob [mailto:[e-mail]]
Sent: Monday, January 05, 2015 11:54 AM
To: Aaron Allan
Cc: Barak Vaughn; Fred Heather; Kramer, David
Subject: RE: LegalZoom v. Rocket Lawyer - Subpoenas to Google, Google Ventures and Michael Margolis

Aaron,
Pursuant to your request, we sent you a written proposal that would have conclusively resolved your various subpoenas
almost three weeks ago. We have yet to hear back from you. We stand by our objections to Mr. Margolis’s deposition
and will not be appearing on January 9. However, our offer of December 18 is still open.
Best,
Jake

From: Aaron Allan [mailto:[e-mail]]
Sent: Monday, January 05, 2015 10:32 AM
To: Veltman, Jacob
Cc: Barak Vaughn; Fred Heather; Kramer, David
Subject: RE: LegalZoom v. Rocket Lawyer - Subpoenas to Google, Google Ventures and Michael Margolis

Jake,
Based on my email of December 18, 2014 (below), and your letter in response, it is my understanding that Michael
Margolis will not be appearing to be deposed on January 9, 2015, as commanded by the subpoena that we served. If
there has been any change, or if my understanding is incorrect, please let me know by the close of business today so
that we can make suitable travel arrangements to Washington to take the deposition.

Aaron P. Allan| Partner
Glaser Weil Fink Howard Avchen & Shapiro LLP
10250 Constellation Blvd., 19th Floor, Los Angeles, CA 90067
Main: 310.553.3000 |Direct: 310.282.6279|Fax: [phone]
1

Case5:15-mc-80003-NC Document5-9 Filed01/20/15 Page3 of 4
From: Veltman, Jacob [mailto:[e-mail]]
Sent: Thursday, December 18, 2014 2:23 PM
To: Aaron Allan
Cc: Barak Vaughn; Fred Heather; Kramer, David
Subject: RE: LegalZoom v. Rocket Lawyer - Subpoenas to Google, Google Ventures and Michael Margolis

Aaron,
Please see the attached.
Best,
Jake

From: Aaron Allan [mailto:[e-mail]]
Sent: Thursday, December 18, 2014 10:56 AM
To: Veltman, Jacob; Kramer, David
Cc: Barak Vaughn; Fred Heather
Subject: LegalZoom v. Rocket Lawyer - Subpoenas to Google, Google Ventures and Michael Margolis

Dear Counsel,
This will confirm that we had a telephonic meet and confer discussion this morning that lasted approximately 15
minutes. During our discussion, you revealed the following:
1. Google is unwilling to produce communications with Rocket Lawyer because Google takes the position that such
documents are already in Rocket Lawyer’s possession, and there is no evidence that Rocket Lawyer engaged in
spoliation of evidence. When I asked about the burden associated with producing such materials, you refused to
provide me with any answer (or to even engage) on that subject. Instead you stated that the issue of burden would be
addressed by you only in opposing a motion to compel, and that this was “not a deposition.” When I attempted to
further meet and confer on that subject, you refused to engage.
2. As part of a compromise, Google would be willing to make a production of all documents relating to the study
performed by Michael Margolis and Google Ventures, but would be unwilling to produce any other documents in
response to our subpoena (i.e., documents relating to Rocket Lawyer’s free advertisements or communications with
Rocket Lawyer concerning such advertisements). Google would also be willing to provide the last known contact
information for “Katherine K,” but is not willing to produce any witness for deposition and would reserve the right to
object to the taking of any deposition of Katherine K. You also stated that Mr. Margolis would not be appearing for
deposition.
3. You were uncertain whether any of Katherine K’s emails or documents remain available at Google, but were told this
was “very unlikely” because she was terminated in 2012, well prior to the subpoena. You were therefore unwilling to
search for, or produce, Katherine K’s emails or other documents.
4. You agreed to put your proposal into written form so that it may be considered by LegalZoom.
Please provide me with Google’s written proposal today, or you may alternatively confirm that this email accurately
states that proposal. Absent hearing from you by the close of business today, we will assume that Google is are refusing
to cooperate in discovery and we will proceed with drafting a joint stipulation for purposes of moving to compel.

Aaron P. Allan| Partner
2

Case5:15-mc-80003-NC Document5-9 Filed01/20/15 Page4 of 4
Glaser Weil Fink Howard Avchen & Shapiro LLP
10250 Constellation Blvd., 19th Floor, Los Angeles, CA 90067
Main: 310.553.3000 |Direct: 310.282.6279|Fax: [phone]

This email and any attachments thereto may contain private, confidential, and privileged material for the sole
use of the intended recipient. Any review, copying, or distribution of this email (or any attachments thereto) by
others is strictly prohibited. If you are not the intended recipient, please contact the sender immediately and
permanently delete the original and any copies of this email and any attachments thereto.

3

Case5:15-mc-80003-NC Document5-10 Filed01/20/15 Page1 of 3

EXHIBIT 9
TO THE DECLARATION OF
JACOB T. VELTMAN

Case5:15-mc-80003-NC Document5-10 Filed01/20/15 Page2 of 3

From:
Sent:
To:
Subject:

Veltman, Jacob
Thursday, January 08, 2015 7:17 PM
Barak Vaughn
RE: LegalZoom adv. Google Ventures - Meet and Confer

Barak,
We felt that the last meet and confer call was treated like a box to be checked off by your colleagues rather than an
opportunity to address our objections and reach a compromise. We would prefer that you address our objections in
writing before we have another call. Specifically, what is your position regarding:
(a) why documents relating to the study are relevant given that the study did not relate to Rocket Lawyer
advertisements;
(b) why internal Google Ventures documents that were never seen by Rocket Lawyer are relevant;
(c) why communications between Google Ventures and Rocket Lawyer cannot be obtained from Rocket Lawyer;
(d) what documents you are seeking through Requests 2 & 3 (i.e., do you have any reason to believe that Google
Ventures possesses documents relating to Rocket Lawyer Free Advertisements unrelated to the study)
(e) whether and to what extent you are willing to share some or all of the cost Google Ventures would incur in
searching for and producing the documents requested; and
(f) how you believe Google Ventures could effectively search for “all documents” relating to Rocket Lawyer Free
Advertisements.
Jake
Fr :Barak Vaughn [mailto:[e-mail]]
om
Sen t
:Thursday, January 08, 2015 2:49 PM
To:Veltman, Jacob
Subj :LegalZoom adv. Google Ventures - Meet and Confer
ect

Jacob:
I would like to meet and confer with you regarding LegalZoom’s Subpoena to Google Ventures as well as Google
Ventures Responses and Objections to the Subpoena. Do you have any available time to have a telephonic meet and
confer conference on either Monday or Tuesday? Please let me know any available times you may have.
Respectfully,

Baa ughn
r kVa
10250 Constellation Blvd., 19th Floor, Los Angeles, CA 90067
1

Case5:15-mc-80003-NC Document5-10 Filed01/20/15 Page3 of 3
Main: 310.553.3000 | Direct: 310.999.9999| Fax: [phone]
E-Mail: [e-mail] | http://www.glaserweil.com/

This message and any attached documents may contain information from the law firm of Glaser Weil Fink Howard Avchen & Shapiro
LLP that is confidential and/or privileged. If you are not the intended recipient, you may not read, copy, distribute or use this
information. If you have received this transmission in error, please notify the sender immediately by reply e-mail and then delete
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2

TAB 6

Case5:15-mc-80003-NC Document6 Filed01/27/15 Page1 of 5

1
2
3
4
5
6

PATRICIA L. GLASER -State Bar No. 55668
pglaser glaserweil.com
FRED .HEATHER -State Bar No. 110650
flleather~u,glaserweil.com
AARONI'. 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
a LegalZoom.com,Inc.
9

UNITED STATES DISTRICT COURT

io

NORTHERN DISTRICT OF CALIFORNIA

li
12

LEGALZOOM.COM,INC.,

13
14

7r'

is
16

i~

Plaintiff,
v.
ROCKET LAWYER INC.,

CASE NO:5:15-mc-80003-NC
PLAINTIFF,LEGALZOOM.COM,
INC.' REPLY TO THE MOTION
S
TO COMPEL COMPLIANCE
WITH SUBPOENA TO GOGGLE,
INC.; DECLARATION OF AARON
P. ALLAN

Defendants.
Before: Hon. Nathanael M. Cousins

ig
19
20
21
22
23
24
25
26
27
28

REPLY TO MOTION TO COMPEL COMPLIANCE WITH SUBPOENA
992989

Case5:15-mc-80003-NC Document6 Filed01/27/15 Page2 of 5

Had Google invested as much time and energy in the meet and confer proces

s

2

as it has in preparing its opposition papers, the parties would have had a chance

3

resolving their disputes and avoiding this Motion. Instead, despite multiple
attempts

4

to compromise made by LegalZoom, Google's counsel failed to confirm that

at

it would

s produce~responsive documents, refused to discuss the burdens of
compliance,
6

and

ultimately provided an ultimatum offer: Google would make a very limited
production conditioned on LegalZoom making an agreement to not take the

s deposition oftheir separate client, Michael Margolis(a deposition
which was
9

-'

specifically authorized by the court), and only agreed to produce documents

also

related to

io a single study Mr. Margolis conducted. Because that ultimatum was
wholly
ii unacceptable, and because LegalZoom was faced with a January
16, 2015, deadline to
12 complete third party discovery, LegalZoom was forced
to pursue this motion(and to
13

~ pursue in the district court a further delay ofthe underlying trial date).

EV

14

n

15

Google has no viable defense to this motion or to its conduct. The discovery
I requests were approved by the District Court, were appropriately narrow, and
were

~,f

16

further narrowed by extensive (albeit unilateral) efforts to meet and confer.

In

i~ addition, Google's opposition brief is replete with inaccurate statem
ents about

the

is ~ meet and confer process, which a review ofthe underlying corres
pondence can
19

Zo

,readily confirm.
­ Google argues LegalZoom ignored the duty to avoid burdens on nonpart
ies.

zi

(Opp. at 1:7-10). But the record reflects: (1)that LegalZoom stated its

22

willingness to provide information and to work with Google to address any

23

financial or other burden associated with compliance (see Ems.D & E1);

24

(2) Google's counsel was repeatedly asked to discuss the burden, and they

Zs

refused (see id., Exh. I, Veltman Ems. 7, and Declaration of Aaron Allan

26
27

1 All e~ibit references (unless otherwise indicated) are to the
Zs compel, attached to the Declaration of Aaron Allan in support on~anal motion to
ofthat motion.
1
992989

MOTION TO COMPEL COMPLIANCE WITH SUBPOENA

and

Case5:15-mc-80003-NC Document6 Filed01/27/15 Page3 of 5

i

("Allan Decl.")¶ 2). Google's brief is the first time Google attempts to detail

2

some ofthe burden associated with compliance, and that should have been

3

done in the context ofthe parties' efforts to meet and confer. If Google had

4

identified and asked for costs associated with the production, LegalZoom

s

would have negotiated any reasonable request. Google did not.

6

­ Google argues that their usability analysis is "unrelated to Rocket Lawyer's
disputed advertising, and that Rocket Lawyer would have those documents."

s

Opp. at 1:16-19. But Google has no basis for making that statement, and in

9

fact LegalZoom repeatedly explained how and why the analysis and Google's

io

documents would help LegalZoom to demonstrate that Rocket Lawyer

ii

continued to run "free" advertisements with intent to deceive consumers. See

12

Ems. D &Allan Decl. ¶ 3. Moreover, LegalZoom provided Google with a

13

copy ofthe court order which specifically authorized this limited discovery in

~

14

the context of moving a trial date. See Ems. A. Obviously, the district court

n
~.1

15

judge found that the information being sought was both relevant and related.

16

­ Google argues that LegalZoom "had no response" when asked why it could not

-'

i~

get the documents directly from Rocket Lawyer, and that any relevant

is

information would be "readily obtainable from Rocket Lawyer." Opp. at 1:22-

i9

23. This is incorrect on both accounts. During the meet and confer process,

20

LegalZoom informed Google's counsel that the Rocket Lawyer production

21

appeared to have significant gaps, and that there had been irregularities in the

as

production which led to the court order to obtain the discovery directly from

23

Google. Allan Decl., ¶ 4. Also, there is no indication that Google's internal

24

communications on this topic were ever shared with Rocket Lawyer. See Ems.

25

E, p.2.

26

­ Google argues that LegalZoom "had no response" when asked for guidance to

27

focus Google's search on specific exchanges and people. Opp. at 1:23-25.

as

This is again belied by the record. In correspondence dated December 9, 2015,
2
MOTION TO COMPEL COMPLIANCE WITH SUBPOENA

992989

Case5:15-mc-80003-NC Document6 Filed01/27/15 Page4 of 5

i

LegalZoom's counsel provided Google with the Rocket Lawyer email

2

addresses associated with the Google adwords account, and also expressed an

3

openness to consider any other ways to help alleviate the burden of Google's

4

search efforts. Ems. E.

5
6

­ Google argues that LegalZoom made no response to their proposal for almost
three weeks, and never made a counteroffer. Opp. at 1:25 — 2:2. But
Google's ultimatum proposal was made on December 18, 2014, right before

s

the Christmas and New Year's holidays, and LegalZoom responded on the

9

Monday following those holidays, once counsel had been able to discuss the

io

matter with the appropriate client representative. Allan Decl. ¶ 5. No counter

ii

was made for at least two reasons: (1)it was made very clear during the final

12

meet and confer telephone call that this offer was a "final" offer and an

+~~'

13

ultimatum; and (2)the offer was made in the context of Google's counsel

~

14

abruptly terminating the meet and confer session by interrupting the attempts

~

is

by LegalZoom's counsel to explore the extent of any burden associated with

16

the production and potential means for alleviating that burden. See id.

i~

­ Google argues that the subject document requests are "facially overbroad and

ig

unduly burdensome." Opp. at 8-9. But Google ignores the significant efforts

19

that were undertaken by LegalZoom to meet and confer, and the proposals that

zo

LegalZoom made to narrow the scope ofthe requests (e.g., Exh. D):

21

• LegalZoom offered to limit the scope ofthe subpoena to January 1, 2010,

22

through December 31, 2013, in response to Google's objection that the

23

"specified relevant period of almost seven years renders the Request

24

particularly overbroad and oppressive."

zs

• LegalZoom provided Google with the four email addresses of Rocket

26

Lawyer personnel involved in the subject communications, and produced

z~

the usability study to which the communications pertained.

2s

• LegalZoom offered to rely upon a declaration of a custodian ofrecords,
3
MOTION TO COMPEL COMPLIANCE WITH SUBPOENA

992989

Case5:15-mc-80003-NC Document6 Filed01/27/15 Page5 of 5

i
2
3

without the need for live testimony, to authenticate any records produced.
• LegalZoom offered to extend by over two weeks the time to comply with
the subpoena.

4

­ Finally, Google argues that Rocket Lawyer acted reasonably in the meet and

s

confer process and was therefore able to reach an agreement with Google.

6

Opp. at 3, n.2. But such an argument is completely irrelevant to this motion, as
Google has not even attempted to describe those meet and confer efforts, and

s

as of January 21, 2015, one day after the opposition brief was filed, Rocket

9

Lawyer's counsel confirmed that there is no "written agreement with Google

io
ii

RS

Directors for Rocket Lawyer(and the fact that Google Ventures is a significant

13

R
~.J

Moreover, the fact that Google's Chief Legal Officer is also on the Board of

12

~

regarding the scope of what they will produce." Allan Decl. ¶ 6, Ems. A.

investor in Rocket Lawyer)should call into question Google's uneven dealings

14

with the parties.

15

This motion never should have been necessary. Any slight burden that Google
would have sustained in simply locating and producing responsive documents has
been significantly multiplied by the efforts that Google and its counsel have employed
to refuse cooperation with this court ordered subpoena. When coupled with the
burden now sustained by LegalZoom and the Court to achieve.compliance, Google's
conduct should be viewed as particularly abusive, and should be a subject for

21

sanctions in the form ofreasonable attorney fees necessary to pursue this motion.

22

DATED: January 27,2015

23
24
25
26
2~

GLASER WEIL FINK HOWARD
AVCHEN & SHAPIRO Lr.P
By:
PATRICIA L. GLASER
FRED D. HEATHER
AARON P. ALLAN
Attorneys for Plaintiff
LegalZoom.com, Inc.

28

4
992989

MOTION TO COMPEL COMPLIANCE WITH SUBPOENA

TAB 7

Case5:15-mc-80003-NC Document6-1 Filed01/27/15 Page1 of 7

i PATRICIA L. GLASER -State Bar No. 55668
pglaser glaserweil.com
FRED .HEATHER -State Bar No. 110650
2
flleather glaserweil.com
.ALLAN -State Bar No. 144406
3 AARO
aallan glaserweil.com
4 GLAS R WEIL FINK HOWARD
AVCHEN & SHAPIRO LLP
5 10250 Constellation Boulevard, 19th Floor
Los Angeles, California 90067
6 Telephone: [phone]
Facsimile: 310 556-2920
Attorneys for Plaintiff
LegalZoom.com,Inc.
s
9

UNITED STATES DISTRICT COURT

io

NORTHERN DISTRICT OF CALIFORNIA

ii
12

t

LEGALZOOM.COM,INC. a Delaware
corporation,

13

Plaintiff,
14

~+
~
,
u

v.

CASE NO.: 5:15-mc-80003-NC
REPLY DECLARATION OF
AARON P. ALLAN IN SUPPORT
OF MOTION TO COMPEL
COMPLIANCE WITH SUBPOENA

is
16

ROCKET LAWYER INCORPORATED,
a Delaware corporation

Before: Hon. Nathanael M. Cousins

17

Defendants.
ig
19
20
21
22
23
24
25
26
27
28
[REPLY DECLARATION OF AARON P. ALLAN]
993083

Case5:15-mc-80003-NC Document6-1 Filed01/27/15 Page2 of 7

REPLY DECLARATION OF AARON P. ALLAN
2

I, AARON P. ALLAN,declare and state as follows:
1.

4

I am an attorney at law duly admitted to practice before this Court and

am a Partner of the law firm of Glaser Weil Fink Howard Avchen &Shapiro LLP,
attorneys of record for Plaintiff LegalZoom.com, Inc. I submit this reply declaration
in support of the Motion to Compel Compliance with Subpoena brought by Plaintiff
LegalZoom.com,Inc. I have personal knowledge of the facts set forth herein, and if
called upon to testify thereto, I could and would competently do so under oath.
2.

I was personally involved in conducting meet and confer efforts with

io Google, Inc., on behalf of LegalZoom.com,Inc.("LegalZoom"). During both
ii telephone conversations and written communications with Google's counsel, Jacob
12
13
~
fC~

Veltman and David Kramer of the Wilson Sonsini firm, I repeatedly brought up the
issue of"burden" as it might relate to Google's compliance with the subpoena. In

14

that regard, I made specific proposals to alleviate the burden(by narrowing the time

15

frame for searching, by allowing a custodian declaration to authenticate records, and

16

by providing specific persons known to have been involved for both Google and

i~ Rocket Lawyer)and I also questioned Google about the nature ofthe burden and
ig whether there were other ways in which we could work to alleviate the burden. In
19

response .to my inquiries on this subject, I was never given any useful information or

20 proposals by Google's counsel. In fact, during our final telephonic meet and confer
21

discussion, when I again raised the subject of burden and started to ask Google how

22

we might be able to work together to alleviate any burdens associated with the

23

production, Google's counsel David Kramer rudely interrupted me mid-sentence by

24

saying (in substance)this is not a deposition and we are not going to discuss burden.

2s Mr. Kramer stated that the subject would only be addressed by Goggle in response to
26

a motion to compel. Mr. Kramer then proceeded to cut short the conversation by

27

telling me what Goggle was willing to do, and it was clearly understood by me that

2s his proposal was Google's last, best and final offer, and that he was not inviting any
[REPLY DECLARATION OF AARON P. ALLAN]
993083

Case5:15-mc-80003-NC Document6-1 Filed01/27/15 Page3 of 7

counteroffer. E~iibit I to my original declaration in support of this motion accurately
21 describes the conversation.
3

3.

During my very first meet and confer telephone conversation with Jacob

4

Veltman on December 3, 2014,I was asked to explain(and did explain) in great detail

5

the nature ofthe dispute between LegalZoom and Rocket Lawyer, as well as how and

6

why the subject usability analysis and other requested documents from Google would
help LegalZoom to demonstrate that Rocket Lawyer continued to run "free"

a advertisements with intent to deceive consumers. Mr. Veltman seemed satisfied with
9

my explanation and indicated that he would proceed to evaluate whether he could

io locate responsive documents and let me know when they might be able to produce
ii them. E~ibit D to my original declaration confirms these points. I never again was

l~'

RS
~

12

asked by Google's counsel for further details on why the requested documents were

13

-j

relevant.

14

4.

During the same initial meet and confer telephone call, Mr. Veltman

is asked me why we were unable to obtain the requested documents directly from
16

Rocket Lawyer. I informed Mr. Veltman that the Rocket Lawyer production

i~ appeared to have significant gaps, and that there had been irregularities in the
i8 production which led to the court order to obtain the discovery directly from Google.
19

Zo

He appeared to be satisfied with that explanation at the time of our initial call.
5.

Google's final offer to resolve the subpoena was made on a Thursday

21

evening at 7:02 p.m., on December 18, 2014, right before the Christmas and New

22

Year's holidays. I told Google's counsel that I would communicate the offer to

23

LegalZoom and provide a response. Based on discussions over the holidays, and with

24 I~

a January 16, 2015, deadline for completing the discovery looming over our heads,

Zs ~' LegalZoom made the decision to reject the offer and pursue a motion to compel. No
26 ~'

counteroffer was made to Google for at least two reasons: (1)it was made very clear

27

by Google's counsel during the final meet and confer telephone call that this offer

2s was a "final" offer and an ultimatum; and(2)the offer was made in the context of
2
[REPLY DECLARATION OF AARON P. ALLAN]
993083

Case5:15-mc-80003-NC Document6-1 Filed01/27/15 Page4 of 7

i Google's counsel abruptly terminating the meet and confer session by interrupting the
2

attempts by LegalZoom's counsel to explore the extent of any burden associated with

3

the production and potential means for alleviating that burden.

4

6.

In Google's opposition brief, reference is made to a compromise that

5

Google was able to reach with Rocket Lawyer based on "good faith meet-and-confer

6

discussions." Attached hereto as E~ibit A is a true and correct copy of an email
exchange that I had with Rocket Lawyer's counsel on this subject which confirms that

s as of January 21, 2015, one day after the opposition brief was filed, there was no
9

io

"written agreement with Google regarding the scope of what they will produce."
I declare under penalty of perjury under the laws of the State of California and

ii the United States that the foregoing is true and correct. Executed on January 27,
~'

12

2015, at Los Angeles, California.

13
~
t/}

14

~

is

AARON P. ALLAN

16
17
18
19
20
21
22
23
24
25
26
27
28
3
[REPLY DECLARATION OF AARON P. ALLAN]
993083

Case5:15-mc-80003-NC Document6-1 Filed01/27/15 Page5 of 7

Case5:15-mc-80003-NC Document6-1 Filed01/27/15 Page6 of 7
Aaron Allan
From:

Sent:
To:

Cc:
Subject:

Vu, Hong-An < [e-mail]>
Wednesday, January 21, 2015 6:31 PM
Barak Vaughn
Aaron Allan; Fred Heather; Jones, Michael T
RE: Follow Up Email re Deposition of Dr. Ferguson and Google Matters

Barak:
I just emailed Elizabeth Ferguson about moving the deposition to February 12. Can you please send a revised notice of
deposition?
Regarding Google, I have confirmed with Mike that we do not have a written agreement with Google regarding the
scope of what they will produce. Our understanding is that they are in the process of collecting/reviewing
documents. Although we have an agreement about what they will produce, we have not yet received any documents.
Best,
Hong-An
Hong-An Vu
Goodwin Procter LLP
601 S. Figueroa St., 41 51 Floor
Los Angeles, CA 90017
T (LA): 213-426-2557
T (SF): 415-733-6114
F: 213-623-1673
[e-mail]
www.goodwinprocter.com

Please note the change in my contact information
From: Barak Vaughn [mailto:[e-mail]]
Sent: Wednesday, January 21, 2015 4:59 PM
To: Vu, Hong-An
Cc: Aaron Allan; Fred Heather
Subject: Follow Up Email re Deposition of Dr. Ferguson and Google Matters

Hong-An:
It was nice to speak with you moments ago. Just to recap our conversation, here is what we discussed.
1. We are available on February 12, 2015 to conduct the deposition of Dr. Elizabeth Ferguson at Goodwin Proctor, LLP in
San Francisco. You informed me that you would confirm with your team that they are available for that date. If your
team is available on that date, I authorized you to reach out to Dr. Ferguson, cc'ing me, and informing her that February
12, 2015 works for all parties.

2. With respect to Google, I asked if LegalZoom could receive a copy of any written agreement between Google, Inc. and
Rocket Lawyer resolving issues with Rocket Lawyer's subpoena to Google. I asked for that agreement to assist
LegalZoom in resolving its current discovery dispute with Google, Inc. You informed me that you were unaware if there

Case5:15-mc-80003-NC Document6-1 Filed01/27/15 Page7 of 7
was a formal written agreement between Rocket Lawyer and Google with regards to the resolution of any dispute
regarding Rocket Lawyer's subpoena to Google. You would check with Michael Jones to determine if a written
agreement exists and let me know.
3. We agreed that any documents received from any third-party subpoena would be shared within the three days
articulated in the parties stipulation. To date, Rocket Lawyer had not received any documents from Google, according
to your understanding.
Please let me know if I missed anything regarding our call, or if any of the above information is incorrect.

Glaser Weil
Barak Vaughn

10250 Constellation Blvd., 19th Floor, Los Angeles, CA 90067
Main: 310.553.3000 I Direct: 310.999.9999 I Fax: [phone]
E-Mail: jJy_ciugb_Q_@fil£?i2(';1J_~lLf.QD:l_ I http://www.glaserweiI.com/

This message and any attached documents may contain information from the law firm of Glaser Weil Fink Howard Avchen & Shapiro
LLP that is confidential and/or privileged. If you are not the intended recipient, you may not read, copy, distribute or use this
information. If you have received this transmission in error, please notify the sender immediately by reply e-mail and then delete
this message.

*******************************************************************
This message is intended only for the designated recipient(s). It may contain confidential or proprietary
information and may be subject to the attorney-client privilege or other confidentiality protections. If you are
not a designated recipient, you may not review, copy or distribute this message. If you receive this in error,
please notify the sender by reply e-mail and delete this message. Thank you.

*******************************************************************

2

Case5:15-mc-80003-NC Document6-2 Filed01/27/15 Page1 of 3

1

PATRICIA L. GLASER- State Bar No. 55668
[e-mail]
FRED IJ.HEATHER- State Bar No. 110650
fheather(a),glaserweil.com
AARONP. ALLAN - State Bar No. 144406
[e-mail]
BARAXV AUGHN - State Bar No. 227926
GLASER WEIL FINK HOWARD
A VCHEN & SHAPIRO LLP
10250 Constellation Boulevard, 19th Floor
Los Angeles, California 90067
Telephone: [phone]
Facsimile: [phone]

8

Attom~ys

1

2
3
4

5
6

for Plaintiff
LegalZoom.com, Inc.

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11
-

12

13

SAN JOSE DIVISION
LEGALZOOM.COM, INC., a Delaware
corporation,

Si....

Plaintiff,

Q)

14

ro
l5

15

v.

16

CASE NO.: CV 15-80003-MISC.

ROCKET LAWYER INCORPORATED,
a Delaware corporation,

V)

17

PROOF OF SERVICE

Defendant.

18

19

20
21

22
23

24
25

26
27

28

PROOF OF SERVICE
983913

CASE NO.: CV 15-80003-MISC.

Case5:15-mc-80003-NC Document6-2 Filed01/27/15 Page2 of 3

PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

2
3
4

I am employed in the County of Los Angeles, State of California; I am over the age of 18
and not a party to the within action; my business address is 10250 Constellation Boulevard, 19th
Floor, Los Angeles, California 90067.
On January 27, 2015 I served the foregoing document(s) described as:

5

PLAINTIFF, LEGALZOOM.COM, INC.'S REPLY TO THE MOTION TO COMPEL
COMPLIANCE WITH SUBPOENA TO GOOGLE, INC.; DECLARATION OF
AARON P. ALLAN; AND

6
7

8

REPLY DECLARATION OF AARON P. ALLAN IN SUPPORT OF MOTION TO
COMPEL COMPLIANCE WITH SUBPOENA

9

10

on the interested parties to this action by delivering a copy thereof in a sealed envelope
addressed to each of said interested parties at the following address(es):

11

·-

SEE ATTACHED LIST
12
~

~

Q)
""""
Vl

(BY MAIL) I am readily familiar with the business practice for collection and processing of
correspondence for mailing with the United States Postal Service. This correspondence shall
be deposited with the United States Postal Service this same day in the ordinary course of
business at our Firm's office address in Los Angeles, California. Service made pursuant to
this paragraph, upon motion of a party served, shall be presumed invalid if the postal
cancellation date of postage meter date on the envelope is more than one day after the date of
deposit for mailing contained in this affidavit.

~

(BY ELECTRONIC SERVICE) by causing the foregoing document(s) to be electronically
filed using the Court's Electronic Filing System which constitutes service of the filed
document(s) on the individual(s) listed on the attached mailing list.

~

(BY E-MAIL SERVICE) I caused such document to be delivered electronically via e-mail
to the e-mail address of the addressee(s) set forth in the attached service list.

D

(BY FACSIMILE) I caused the above-referenced document to be transmitted to the
interested parties via facsimile transmission to the fax number(s) as stated on the attached
service list.

D

(State)

~

(Federal) I declare that I am employed in the office of a member of the bar of this court at
whose direction the service was made. I declare under penalty of perjury that the
above is true and correct.

13
14

l?
n:s

15
16
17
18
19
20
21
22
23
24

I declare under penalty of perjury under the laws of the State of California that
the above is true and correct.

25
26
27

Executed on January 27, 2015, at Los Angele~~mia..

-~~--=-~~c;__._··~J~~-~_,._,__~
Claire Evans

28
PROOF OF SERVICE
983913

Case5:15-mc-80003-NC Document6-2 Filed01/27/15 Page3 of 3

SERVICE LIST
2

3
4
5

6
1
8
9
10

-·
~.

11
12

13

Forrest A. Hainline, Esq.
[e-mail]
Hong-An vu, Esq.
[e-mail]
GOODWIN PROCTER LLP
Three Embarcadero Center, 24th Floor
San Francisco, California 94111
Tel: [phone]
Fax: [phone]
Michael T. Jones, Esq.
[e-mail]
GOODWIN PROCTER LLP
135 Commonwealth Drive
Menlo Park, California 94025-1105
Tel (CA): [phone]
Tel (MA): [phone]

!I...

QJ

14

"'

15

VJ

l9

16
17
18

Brian W. Cook, Esq.
[e-mail]
GOODWIN PROCTER LLP
53 State Street Exchange Place
Boston, Massachusetts 02109
Tel: [phone]
Fax: [phone]

19
20
21

22
23
24

Jacob Veltman, Esq.
[e-mail]
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
Tel: [phone]
Fax: [phone]

25

26
27
28

PROOF OF SERVICE

TAB 8

TAB 9

Case5:15-mc-80003-NC Document10 Filed03/23/15 Page1 of 5

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9
10

Case No. 15-mc-80003 NC

11 LEGALZOOM.COM,

CDCA Case No. 12-cv-00942 GAF

12

ORDER DENYING
LEGALZOOM.COM’S MOTION TO
COMPEL AGAINST NON-PARTY
GOOGLE, INC.

13

Plaintiff,
v.

14 ROCKET LAWYER INC.,
15

Re: Dkt. No. 1
Defendant.

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In this false advertising and unfair business practices case, plaintiff LegalZoom
moves to compel the production of documents subpoenaed from non-party Google.
LegalZoom contends that because there were “significant gaps” in the production of
documents it received from defendant Rocket Lawyer, it needs Google to fill those gaps.
Under Federal Rule of Civil Procedure 45, when a party demands documents from a nonparty, it must take “reasonable steps” to avoid imposing an undue burden or expense on the
third party. This Court finds that LegalZoom did not take “reasonable steps” to confine its
requests to Google, so the motion to compel is denied.
BACKGROUND
This discovery motion arises from a dispute in the U.S. District Court for the Central
District of California between competitors LegalZoom and Rocket Lawyer. According to
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1 LegalZoom, it is an online provider of “legal solutions.” Dkt. No. 1 at 4. LegalZoom
2 asserts that Rocket Lawyer engaged in false advertising and unfair business practices when
3 it used the term “free” in advertising for its services.
4

LegalZoom asserts that it learned from documents produced by Rocket Lawyer that

5 Google had communications with Rocket Lawyer about the free advertisements. In the
6 underlying case, on November 10, 2014, District Court Judge Gary A. Feess ordered that
7 LegalZoom would be allowed additional time to conduct discovery, including from Google
8 relating to Google’s inquiry into Rocket Lawyer’s free advertisements. Dkt. No. 1, Ex. A.
9 On November 14, 2014, LegalZoom served Google with a subpoena seeking four categories
10 of documents: (1) Any and all documents relating to Rocket Lawyer free advertisements;
11 (2) Any and all communications between Google and Rocket Lawyer relating to Rocket
12 Lawyer free advertisements; (3) Any and all documents relating to studies managed or
13 performed by Google Ventures for Rocket Lawyer, to the extent those studies examine or
14 concern Rocket Lawyer free advertisements; and (4) Any and all documents sufficient to
15 identify contact information for a specified Google employee.
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As to the first three categories, Google objected that the requests were overly broad

17 and unduly burdensome and should be demanded from Rocket Lawyer in the first instance.
18 When served by LegalZoom, the subpoenas sought documents for the time period January
19 1, 2008, to present. After Google objected to the scope of the subpoenas, LegalZoom
20 agreed to modify the requests to the four-year period of January 1, 2010, through December
21 31, 2013. Dkt. No. 1 at 6. As to the fourth category, Google provided information to
22 LegalZoom and the parties resolved their dispute before the hearing.
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After a meet and confer process, full briefing, and a tentative ruling did not resolve

24 the motion to compel, this Court held a hearing on February 25, 2015. Dkt. No. 9.
LEGAL STANDARD

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Federal Rules of Civil Procedure 26 and 45 govern discovery from non-parties. Rule

27 26 allows a party to obtain discovery concerning any nonprivileged matter that is relevant to
28 any party’s claim or defense. Fed. R. Civ. P. 26(b)(1). Information is relevant when it will
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1 be admissible at trial or when the evidence is “reasonably calculated to lead to the discovery
2 of admissible evidence.” Id. The Rule 26 relevancy standard also applies to subpoenas to
3 non-parties. Beinin v. Ctr. for Study of Popular Culture, No. 06-cv-02298 JW (RS), 2007
4 WL 832962, at *2 (N.D. Cal. Mar. 16, 2007). Rule 45, in turn, provides that a party may
5 command a non-party to testify at a deposition and “produce designated documents,
6 electronically stored information, or tangible things in that person’s possession, custody, or
7 control.” Fed. R. Civ. P. 45(a)(1)(A)(iii).
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Even if a subpoena to a non-party seeks relevant information, the Court must limit

9 discovery if “the discovery sought . . . can be obtained from some other source that is more
10 convenient, less burdensome, or less expensive” or if “the burden or expense of the
11 proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 45(d)(1); Fed. R. Civ. P.
12 26(b)(2)(C)(i); see Nalco Co. v. Turner Designs, Inc., No. 13-cv-02727 NC, 2014 WL
13 1311571, at *1 (N.D. Cal. Mar. 31, 2014) (denying motion to compel because subpoenaing
14 party failed to take reasonable steps to avoid imposing undue burden); In re NCAA Student15 Athlete Name & Likeness Licensing Litig., No. 09-cv-01967 CW (NC), 2012 WL 629225, at
16 *1 (N.D. Cal. Feb. 27, 2012) (“[B]ecause antitrust plaintiffs did not make reasonable
17 attempts to avoid imposing an undue burden on the nonparties, sanctions against antitrust
18 plaintiffs are warranted under Rule 45.”); Convolve, Inc. v. Dell, Inc., No. 10-cv-80071
19 WHA, 2011 WL 1766486, at *2 (N.D. Cal. May 9, 2011) (quashing subpoena and noting
20 exhaustive definitions to words such as “documents” and “identify” serve to further broaden
21 the subpoena scope unnecessarily). A party or lawyer responsible for issuing a subpoena
22 therefore must take “reasonable steps to avoid imposing undue burden or expense on a
23 person subject to the subpoena.” Fed. R. Civ. P. 45(c)(1). In turn, the court “must protect a
24 person who is neither a party nor a party’s officer from significant expense resulting from
25 compliance.” Fed. R. Civ. P. 45(d)(2)(B)(ii).
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DISCUSSION

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For each of the three categories of information requested, LegalZoom has not met its

3 burden of establishing that it took “reasonable steps” to avoid imposing an undue burden on
4 non-party Google. Fed. R. Civ. P. 45(d)(1).
5

LegalZoom asserts that it needs documents from Google because it believes there

6 were “significant gaps” and “irregularities” in the production of documents from the
7 defendant, Rocket Lawyer. Dkt. No. 6 at 3. Yet to fill these gaps, LegalZoom demands for
8 a four-year period “any and all documents” relating to Rocket Lawyer free advertisements,
9 “any and all communications” between Google and Rocket Lawyer relating to Rocket
10 Lawyer free advertisements, and “any and all documents” relating to studies managed or
11 performed by a Google entity, Google Ventures, concerning Rocket Lawyer free
12 advertisements. Despite extensive conferring and briefing, LegalZoom has not specified the
13 parameters of the “gaps” that Google needs to fill. What documents did Rocket Lawyer
14 provide? Is there a basis to assert that for specific persons, in specific time periods, Rocket
15 Lawyer did not produce its communications with Google about the free advertisements?
16 Google, and the Court, are left to guess. “There is simply no reason to burden nonparties
17 when the documents sought are in possession of the party defendant.” Nidec Corp. v.
18 Victor Co. of Japan, No. 05-cv-0686 SBA (EMC), 249 F.R.D. 575, 577 (N.D. Cal. 2007)
19 (quashing subpoena to non-party where same documents possessed by party).
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LegalZoom next contends that it “should be entitled to review documents in Google’s

21 possession as a cross-check against any production previously made by Rocket Lawyer.”
22 Dkt. No. 1 at 13. There is no such entitlement in the Federal Rules of Civil Procedure. To
23 the contrary, the Rules require the requesting party to take “reasonable steps” to minimize
24 burden. Here, that would include assuring that Google was not reproducing significant
25 materials already produced by the party defendant. LegalZoom did not show that it took
26 these reasonable steps.
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Finally, LegalZoom asserts that Google’s alleged ties to Rocket Lawyer make it “less

28 than a third party” to the underlying dispute. Dkt. No. 1 at 8. Specifically, LegalZoom
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1 states that Google is a “significant investor” in Rocket Lawyer, that Google’s Chief Legal
2 Officer is on the Board of Directors of Rocket Lawyer, and that the same Officer was
3 formerly a partner in the law firm representing Google. Id. Yet LegalZoom cites no
4 authority for the proposition that Rules 45 and 26 only protect a non-party like Google if it
5 is a neutral to the underlying case. In sum, the Court determines that LegalZoom’s
6 obligation to be reasonable is not excused by its allegations of connections between Google
7 and Rocket Lawyer.
CONCLUSION

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For the reasons described, the Court denies LegalZoom’s motion to compel.
Under Rule 45(d)(1), the Court must impose an appropriate sanction on a party or

11 attorney responsible for issuing a subpoena that violates Rule 45. If Google seeks such a
12 sanction, it must move within 14 days of this order.
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Any party may object to this order, but must do so within 14 days. Fed. R. Civ. P.

14 72(a). Any objection must be directed to District Court Judge Lucy H. Koh, as she was the
15 general duty judge in this Division on the day the motion to compel was filed.
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IT IS SO ORDERED.

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Date: March 23, 2015

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_________________________
Nathanael M. Cousins
United States Magistrate Judge

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