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)

1
2
3
4
5
6

PATRICIA L. GLASER -State Bar No. 55668
pglaser glaserweil.com
FRED .HEATHER -State Bar No. 110650
flzeather glaserweil.com
AARO .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
s LegalZoom.com,Inc.
9

UNITED STATES DISTRICT COURT

io

NORTHERN DISTRICT OF CALIFORNIA

i~
12

LEGALZOOM.COM,INC.,

13
~

14

~

is
16

i~

Plaintiff,
v.
ROCKET LAWYER INC.,
Defendants.

CASE NO:5:15-mc-80003-NC
DECLARATION OF FRED
HEATHER RE
LEGALZOOM.COM,INC.'S
OPPOSITION TO NON-PARTY
GOGGLE INC.'S MOTION FOR
ATTORNEY FEES PURSUANT TO
FRCP(45)(D)(1)
Before: Hon. Nathanael M. Cousins

ig
19
20
21
22
23
24
25
26
27
28

DECLARATION OF FRED HEATHER
1021936

1

DECLARATION OF FRED D.HEATHER

2

I, FRED D. HEATHER, declare as follows:

3

1.

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

4

am a Partner ofthe law firm of Glaser Weil Fink Howard Avchen &Shapiro LLP,

5

attorneys of record for Plaintiff LegalZoom.com,Inc. I submit this declaration in

6

support of LegalZoom.com,Inc.'s Opposition to Non-Party Google Inc.'s Motion for
Attorneys Fees Pursuant to FRCP (45)(d)(1). I have personal knowledge ofthe facts

a set forth herein, and if called upon to testify thereto, I could and would competently
do so under oath.
2.

Attached hereto as Exhibit A is a true and correct copy of an April 17,

~ 2015 Order from United States Magistrate Judge John E. McDermott moving the
dates to complete third party discovery by an additional 120 days.
3.

Attached hereto as Exhibit B is a true and correct copy of an October 1,

~ 2014 Order re: Ex Parte Application to Continue Hearing issued by United States
District Court Judge Gary Feess, which speaks to the importance ofthe documents
that Defendant Rocket Lawyer produced belatedly.
4.

Attached hereto as Exhibit C is a true and correct copy of a December 2,

~ 2011 email between Katherine K. of Google and Charley Moore of Rocket Lawyer.
I declare under penalty of perjury under the laws of the State of California and
~ the United States that the foregoing is true and correct. Executed on Apri120, 2015,
at Los Angeles, California.
22
23
24
25

FRE

.HEATHER

26
27
28

1
DECLARATION OF FRED HEATHER
1021936

EXHIBIT A

Case 2:12-cv-09942-JEM Document 214 Filed 04/17/15 Page 1 of 1 Page ID #:6567

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

CV 12-9942 JEM

Title

LEGALZOOM.COM INC v. ROCKET LAWYER INCORPORATED

Present: The Honorable

Date

April 17, 2015

JOHN E. MCDERMOTT, UNITED STATES MAGISTRATE JUDGE

S. Anthony
Deputy Clerk

Court Reporter / Recorder

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None

None

Proceedings:

(IN CHAMBERS) COURT ORDER RE PLAINTIFF’S STATUS
REPORT CONCERNING THIRD PARTY DISCOVERY AND
REQUEST FOR ADDITIONAL EXTENSION OF COURT DEADLINES
(Dockt. # 212)

Before the Court is a request by Plaintiff LegalZoom to move the deadline to complete
third party discovery by an additional 120 days to September 16, 2015. Defendant Rocket
Lawyer Incorporated responded to Plaintiff’s request only with the statement, “Rocket Lawyer
does not believe a further extension to be necessary or appropriate.” Rocket Lawyer,
however, does not explain this conclusory statement, this Court’s January 20, 2015 Order
specifically contemplated that a request for an additional extension of the deadlines might
occur, and, most importantly, Rocket Lawyer does not demonstrate or even discuss how it
would be prejudiced by the requested extension. Plaintiff’s request is GRANTED.

cc: Parties
:
Initials of Preparer
CV-90 (10/08)

CIVIL MINUTES - GENERAL

sa
Page 1 of 1

EXHIBIT B

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

Page 1 of 3

Case 2:12-cv-09942-JEM Document 131 Filed 10/01/14 Page 2 of 3 Page ID #:5411

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

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

Page 2 of 3

Case 2:12-cv-09942-JEM Document 131 Filed 10/01/14 Page 3 of 3 Page ID #:5412

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

Page 3 of 3

EXHIBIT C