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

Filing 16

RESPONSE (re 14 MOTION for Attorney Fees ) filed byLegalZoom.com, Inc.. (Attachments: # 1 Declaration of Fred Heather)(Allan, Aaron) (Filed on 4/20/2015)

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PATRICIA L. GLASER - State Bar No. 55668
[e-mail]
FRED D. HEATHER - State Bar No. 110650
[e-mail]
AARON P. ALLAN - State Bar No. 144406
[e-mail]
GLASER WEIL FINK HOWARD
AVCHEN & SHAPIRO LLP
10250 Constellation Boulevard, 19th Floor
Los Angeles, California 90067
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
LegalZoom.com, Inc.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LEGALZOOM.COM, INC.,

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Plaintiff,

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v.

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ROCKET LAWYER INC.,

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Defendants.

CASE NO: 5:15-mc-80003-NC
LEGALZOOM.COM, INC.’S
OPPOSITION TO NON-PARTY
GOOGLE INC.’S MOTION FOR
ATTORNEY FEES PURSUANT TO
FRCP(45)(D)(1)
Before: Hon. Nathanael M. Cousins

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OPPOSITION TO NON-PARTY GOOGLE INC.’S MOTION FOR ATTORNEYS FEES
1021936

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I.

INTRODUCTION
LegalZoom.com, Inc. (“LegalZoom”) opposes the request for attorneys’ fees by Google Inc.

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(“Google”) because the discovery motion practice in this case was caused by Google’s failure to

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reasonably engage in a meet and confer process, which could have and would have resolved any

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allegedly unreasonable burdens imposed by LegalZoom’s subpoena to Google. Indeed, Google

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stonewalled throughout LegalZoom’s efforts to meet and confer and compromise. As the record

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showed, Google refused even to identify what burdens the subpoena would cause. That refusal

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continued at the hearing on LegalZoom’s motion to compel, despite the representation by plaintiff’s

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counsel at the hearing that LegalZoom was prepared to modify its requests if only Google were

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willing to engage in meaningful dialog as to the nature of the burdens it perceived and the manner in

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which they could be eliminated.
Google’s failure to meaningfully meet and confer has further delayed the proceedings in the

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trial court. (Attached as Exhibit A to the Declaration of Fred D. Heather (“Heather Decl.”) is the

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Order of the trial Judge, John E. McDermott, continuing for 120 days the deadline for the

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completion of third party discovery). Judge McDermott’s order was issued to allow LegalZoom to

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issue new subpoenas to Google. While LegalZoom will endeavor to narrow its requests to answer

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the issues of burden identified by the court, the time and costs involved could easily have been

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avoided had Google engaged in good faith in a meet and confer process. In these circumstances, it

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is Google who should pay LegalZoom’s attorneys” fees – not the other way around. At a minimum,

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Google’s request for fees should be severely minimized for Google’s failure to engage in the meet

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and confer process.

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II.

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BACKGROUND
LegalZoom’s subpoena to Google was based on the trial court’s finding that such discovery

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was potentially highly relevant to LegalZoom’s claims and defenses in its case against Rocket

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Lawyer. (Attached as Exhibit B to the Heather Decl. is the Order by Judge Feess – then the trial

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judge – vacating the summary judgment hearing as a result of LegalZoom’s discovery of documents

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which subsequently led the trial court to authorize discovery against Google).

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The relevance and importance of discovery from Google can be illustrated with but one of

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OPPOSITION TO NON-PARTY GOOGLE INC.’S MOTION FOR ATTORNEYS FEES
1021936

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many examples: Among the documents submitted to Judge Feess was an email between Google

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employee Katherine K. and principals of Rocket Lawyer dated December 2, 2011 stating that certain

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Rocket Lawyers ads were violative of Google’s Offer Not Found Policy. (Attached hereto as Exhibit

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C to the Heather Decl. is the subject email between Google and Rocket Lawyer). Yet Rocket

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Lawyer failed to produce any other documents from Google related to Google’s finding that Rocket

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Lawyers advertising violated Google’s policies. Nor were any documents produced which

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explained why Google continued to allow advertisements of the type Katherine K stated were not

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compliant with Google’s policies. Such documents are obviously highly relevant to LegalZoom’s

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claims that Rocket Lawyer has engaged in false and misleading advertising and unfair competition.

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Consequently it is critical that LegalZoom be allowed to obtain Google’s internal documents related

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to the issues raised by Katherine K to Rocket Lawyer as well as any communications to Rocket

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Lawyer, given the absence in Rocket Lawyers’ files of any additional documents on the subject.

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No showing was ever made by Google that producing documents related to Google’s internal

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analysis of Rocket Lawyer’s advertising as reflecting in Katherine K’s e-mail, or any decision as to

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whether to allow Rocket Lawyer to continue such advertising, or related communications with

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Rocket Lawyer would cause any burden on Google.

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LegalZoom made every effort to meet and confer in good faith. The meet and confer process

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spanned fifteen (15) days, including ten (10) separate emails and letters, and at least 3-4 telephone

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calls. During that process, LegalZoom made multiple attempts at compromise including to (1)

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“alleviate any burden associated with locating and producing responsive documents;” (2) limit the

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time/scope of subpoenas to January 1, 2010 through December 31, 2013; (3) “extend out the. . .

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.production date;” (4) provide additional information requested by Google “to assist [its] search;”

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and (5) consider “other proposals” that are less burdensome. See Declaration of Aaron Allan to

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LegalZoom’s Motion.

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Ultimately, in rejecting all of LegalZoom’s efforts at compromise, Google continually

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claimed it would be unfairly burdensome to make it search for and produce any documents. But

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when Google’s counsel was asked to discuss the issue of burden during a telephone conference on

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December 18, 2014, he refused to engage on that subject, protesting “this is not a deposition.”

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OPPOSITION TO NON-PARTY GOOGLE INC.’S MOTION FOR ATTORNEYS FEES
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Instead, he provided LegalZoom with an ultimatum, requiring LegalZoom to withdraw a deposition

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subpoena served on that counsel’s separate client Michael Margolis, who had authored a usability

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study commissioned by Rocket Lawyer. When LegalZoom refused to accept that ultimatum,

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negotiations broke down and LegalZoom was forced to pursue its motion to compel.
The purpose of the meet and confer requirement is not to allow a third-party like Google to

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review a subpoena it believes too broadly drafted and in response stonewall all efforts to narrow the

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scope of the subpoena to eliminate any unreasonable burden the subpoena may impose.
III.

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LEGALZOOM’S REASONABLE STEPS TO ALLEVIATE GOOGLE’S
BURDEN COMPLIED WITH RULE 45(d)(1)

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This Court ruled that a party responsible for issuing a subpoena must take “reasonable steps

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to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P.

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45(d)(1). LegalZoom clearly complied with this requirement. As stated above, LegalZoom took

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reasonable steps to avoid any burden to Google through the following meet and confer efforts

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among others. Each of the meet and confer efforts were submitted with the Declaration of Aaron

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Allan in support of LegalZoom.com, Inc.’s Motion To Compel Compliance With Subpoena dated

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January 5, 2015. The meet and confer efforts are listed as follows:

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Ex. D to the Allan Declaration is an email between Aaron Allan and Google’s counsel, Jacob

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Veltman, dated December 3, 2014, which states "We are willing to work with you and

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Google to address any burden issues in meeting that deadline (December 17, 2015), and in

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particular you have asked that we attempt to provide (a) the RL email address associated

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with this account; and (b) the customer ID number, bank reference number or URL transfer

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number/address associated with the awards account. Further, "Based on the answers that I

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gave concerning the case and the relevance of this material, you agreed to pursue further

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discussions with your clients about resolving the objections and proceeding to provide the

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discovery."

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Exhibit E to the Allan Declaration is a letter from Aaron Allan to Google’s counsel dated

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December 9, 2014 which states, "...but I offered to "work with" Google to help alleviate any

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burden associated with locating and producing responsive documents. For example, we

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OPPOSITION TO NON-PARTY GOOGLE INC.’S MOTION FOR ATTORNEYS FEES
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agreed to accept a declaration from a custodian of records in lieu of live testimony for

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authenticating any responsive documents produced. We are open to considering other

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proposals."

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Exhibit G to the Allan Declaration is an email sent on December 11, 2014 @ 9:49 a.m.,

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which states, "The urgency is not false, and the deadlines are not artificial, and the records

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will reflect that we have made every reasonable attempt to meet and confer to address

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Google's timing and burden concerns."

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Exhibit H to the Allan Declaration is a letter from Aaron Allan to Google’s counsel dated
December 11, 2014, which states, "We further offered to "work with" Google to help

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alleviate any burden associated with locating and producing responsive documents...I have

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indicated we are open to considering other proposals, and yet you have failed to make such a

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proposal or otherwise identify the nature of the burden that Google is facing."

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Exhibit I to the Allan Declaration is an email sent by Aaron Allan to Google’s counsel dated

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December 18, 2014, which states, "When I asked about the burden associated with

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producing such materials, you refused to provide me with any (or to even engage) on that

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subject. Instead you stated that the issue of burden would be addressed by you only in

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opposing a motion to compel, and that this was 'not a deposition.' When I attempted to meet

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and confer on that subject, you refused to engage."

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Exhibit 7 to the Veltman Declaration is a letter from Google’s counsel to Aaron Allan dated

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December 18, 2014, which states, "Nor have you offered to pay for any of the discovery

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costs you seek to impose." This was part of a letter from December 18, 2014. LegalZoom

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did in fact offer to alleviate the burden multiple times as indicated above but was never

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given any amount from Google.

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There is nothing in the meet and confer communications from Google that identified the

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nature of the burden or costs associated with collecting and producing these categories of

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documents. There is nothing in those communications which suggests how the scope of the requests

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could be narrowed to address Google’s concerns about burden.

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///

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OPPOSITION TO NON-PARTY GOOGLE INC.’S MOTION FOR ATTORNEYS FEES
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IV.

CONCLUSION

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For the reasons stated herein, LegalZoom requests this Court deny Google’s Motion for

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Attorneys’ Feess in its entirety because LegalZoom brought its Motion in good faith, and sought to

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meet and confer for weeks prior to having to file its Motion. At a minimum, any sanctions against

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LegalZoom should be limited to account for the absence of a good faith effort by Google to meet

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and confer and avoid the costs and attendant delay in the trial court proceedings that Google’s

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conduct has caused. .

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DATED: April 20, 2015

GLASER WEIL FINK HOWARD
AVCHEN & SHAPIRO LLP

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By: /s/ FRED D. HEATHER______________
FRED D. HEATHER
Attorneys for Plaintiff
LegalZoom.com, Inc.

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OPPOSITION TO NON-PARTY GOOGLE INC.’S MOTION FOR ATTORNEYS FEES
1021936