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

Filing 6

REPLY (re 1 MOTION to Compel ) Compliance with Subpoena to Google filed byLegalZoom.com, Inc.. (Attachments: # 1 Declaration of Aaron Allan, # 2 Certificate/Proof of Service)(Allan, Aaron) (Filed on 1/27/2015)

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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.
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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,
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

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REPLY TO MOTION TO COMPEL COMPLIANCE WITH SUBPOENA
992989

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

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

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

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

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it would

s produce~responsive documents, refused to discuss the burdens of
compliance,
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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
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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
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to pursue this motion(and to
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~ pursue in the district court a further delay ofthe underlying trial date).

EV

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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

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

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

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

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

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

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

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

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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.
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992989

MOTION TO COMPEL COMPLIANCE WITH SUBPOENA

and

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

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

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

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identified and asked for costs associated with the production, LegalZoom

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would have negotiated any reasonable request. Google did not.

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

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

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

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documents would help LegalZoom to demonstrate that Rocket Lawyer

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

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

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copy ofthe court order which specifically authorized this limited discovery in

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

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

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

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

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

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

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LegalZoom informed Google's counsel that the Rocket Lawyer production

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

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

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

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

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E, p.2.

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

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

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

992989

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LegalZoom's counsel provided Google with the Rocket Lawyer email

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

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

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search efforts. Ems. E.

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­ 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

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

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

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

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

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

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

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abruptly terminating the meet and confer session by interrupting the attempts

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

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

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

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

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

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

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

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

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"specified relevant period of almost seven years renders the Request

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particularly overbroad and oppressive."

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• LegalZoom provided Google with the four email addresses of Rocket

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Lawyer personnel involved in the subject communications, and produced

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the usability study to which the communications pertained.

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

992989

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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.

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

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

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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

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

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

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

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

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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

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with the parties.

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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

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

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DATED: January 27,2015

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

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992989

MOTION TO COMPEL COMPLIANCE WITH SUBPOENA