Janson et al v. LegalZoom.com, Inc.

Filing 115

SUGGESTIONS in support re 114 MOTION to strike 90 MOTION for summary judgment , 91 Suggestions in Support of Motion,, 100 MOTION for summary judgment (SEALED) , 101 Suggestions in Support of Motion (Sealed),, Plaintiffs' Motion to Strike L filed by James J. Simeri on behalf of Plaintiffs Gerald T. Ardrey, C & J Remodeling LLC, Chad M Ferrell, Todd Janson. (Related document(s) 114 ) (Simeri, James)

IN UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
TODD JANSON, et al., on behalf of
themselves and on behalf of all others
similarly situated,

Plaintiffs,
v.
LEGALZOOM.COM, INC.

Defendant.

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Case No. 2:10-cv-04018-NKL

Suggestions in Support of Plaintiffs’ Motion to Strike
LegalZoom’s Summary-Judgment Facts 45 through 79

I.

Introduction
In support of its summary-judgment motion, LegalZoom submitted 79 facts. LegalZoom

purports to support some of these facts, the facts numbered 45 through 79, by citing material
from the record that cannot be presented in a form that would be admissible in evidence. More
particularly:


Facts 45 through 59 cannot be presented in a form that would be
admissible in evidence because they are not relevant, and because
LegalZoom did not disclose them;



Facts 60 through 68 cannot be presented in a form that would be
admissible in evidence because they are an expert’s legal opinions,
and because they are not relevant;



Facts 69 through 75 cannot be presented in a form that would be
admissible in evidence because they are not relevant, and because
LegalZoom did not disclose them; and



Facts 76 through 79 cannot be presented in a form that would be
admissible in evidence because they are not facts, instead, they are
simply secondary legal authority.

Under Rule 56(c)(2) of the Federal Rules of Civil Procedure, a party may object that the
material cited to support or dispute a fact cannot be presented in a form that would be admissible
in evidence. Therefore, as authorized by Rule 56(c)(2), Plaintiffs object that the material cited to
support LegalZoom’s facts numbered 45 through 79 cannot be presented in a form that would be
admissible in evidence. Plaintiffs move for the Court to enter an order striking these facts from
LegalZoom’s summary-judgment motion.
II.

LegalZoom’s Facts 45 Through 59 Are No Admissible in Evidence
To support its summary-judgment motion, LegalZoom relies heavily on the case In re

Thompson, 574 S.W.2d 365 (Mo. 1978). But in relying on this case, LegalZoom took an

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additional, unusual step. Instead of confining its argument to the contents of the published
opinion, LegalZoom obtained documents from the court file in In re Thompson. LegalZoom’s
facts numbered 45 through 59 are based on these documents. The Court should strike facts 45
through 59 because these facts cannot be presented in a form that would be admissible in
evidence — they are not relevant, and in any event LegalZoom failed to disclose these
documents.
A.

Facts 45 through 59 Are Not Relevant

Facts 45 through 59 cannot be presented in a form that would be admissible in evidence
because they are not relevant. To be admissible at trial, evidence must be relevant. Fed. R. Evid.
402. Relevant evidence is evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it would
be without this evidence. Fed. R. Evid. 401.
The facts of consequence in this case are whether LegalZoom does the law business in
Missouri, which is defined as (1) drawing or the procuring of or assisting in the drawing (2) for a
valuable consideration (3) any paper, document or instrument affecting or relating to secular
rights. Mo. Rev. Stat. §§ 484.010.2, 484.020; See also Doc. 1-1, Am. Class-Action Pet. at 8.
There is nothing in the factual record of In re Thompson that makes any of the facts of
consequence in this case more or less likely. LegalZoom is entitled to argue that In re Thompson
constitutes legal authority that supports its position. But LegalZoom is not entitled to offer
evidence from In re Thompson into evidence in this case. This would be improper because
nothing about the conduct of the respondent in In re Thompson relates to the conduct of
LegalZoom.

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Because facts from other cases are not relevant, parties are not allowed to use facts from
other cases to support or oppose summary-judgment motions. For example, in Guiliano v. Town
of North Greenbush, Case No. 95-cv-0855, 1997 WL 31434 (N.D.N.Y. Jan. 21, 1997), the
plaintiff sued under the Americans with Disabilities Act. The town moved for summary
judgment. In support of its motion, it presented evidence that the ability to perform physical
labor was an essential function of the plaintiff’s job as a laborer. Id. at *2. The plaintiff attempted
to controvert this fact by citing to the factual record in another lawsuit against a different town
where a court held that there was a fact question as to whether heavy lifting was an essential
function of the laborer job. Id. at *2, n.3. The court rejected plaintiff’s attempt to cite to the
record of another case, and entered summary judgment. It explained, “[The] [p]laintiff does not
controvert [d]efendants’ evidence of the essential functions of the laborer position with affidavits
setting forth facts that would be admissible in evidence.”
As in Guilano, in this case, LegalZoom cannot properly offer facts taken from the record
in another lawsuit. Such facts are not relevant. Moreover, a contrary rule would subject every
witness and every document from any previous lawsuit to discovery in all future lawsuits. In
short, LegalZoom may have violated § 484.020 or it may not have – but the factual record from
In re Thompson will not help the fact finder decide this question. Thus, the Court should strike
LegalZoom’s facts that are based on In re Thompson because they are not relevant.
B.

Facts 45 through 59 Were Not Disclosed

Even if facts from In re Thompson were relevant, these facts will not be admissible in
evidence because LegalZoom failed to disclose them. On April 15, 2010, LegalZoom served its
initial disclosures. A copy of these initial disclosures are attached to Plaintiffs’ motion as Exhibit

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1. As evidenced by Exhibit 1, LegalZoom did not disclose that it would be relying on the court
file from In re Thompson.
Rule 26(a)(1)(A)(ii) obligated LegalZoom to produce “a copy – or a description by
category and location – of all documents, electronically stored information, and tangible things
that [it] has in its possession custody or control and may use to support its claims or defenses,
unless the use would be solely for impeachment.”
The consequence for LegalZoom’s failure to abide by Rule 26’s mandatory-disclosure
requirement is exclusion of the undisclosed evidence. Rule 37 (c)(1) states, in relevant part, “If a
party fails to provide information … as required by Rule 26(a) or (e), the party is not allowed to
use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the
failure was substantially justified or is harmless.”
Consistent with this language, courts interpreting Rule 37 hold: “Rule 37 is written in
mandatory terms, and is designed to provide a strong inducement for disclosure of Rule 26(a)
material.” Newman v. GHS Osteopathic, Inc., Parkview Hosp. Div., 60 F.3d 153, 156 (3d Cir.
1995). “Rule 37(c)(1) gives teeth to these requirements by forbidding the use at trial of any
information required to be disclosed by Rule 26(a) that is not properly disclosed.” Yeti by Molly,
Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). “This particular subsection,
implemented in the 1993 amendments to the Rules, is recognized as broadening of the
sanctioning power. … The Advisory Committee Notes describe it as a ‘self-executing,’
‘automatic’ sanction to ‘provide a strong inducement for the disclosure of material.’” Id.
LegalZoom can offer no explanation, much less a justification, for failing to disclose that
it would be relying on the court file from In re Thompson. And its failure to disclose is not
harmless. Discovery is over, and Plaintiffs do not have the opportunity to seek their own

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discovery from In re Thompson (assuming it were relevant in the first place.) Therefore, under
Rule 37(c)(1), facts 45 through 59 cannot be admitted, even if they were relevant. Therefore, the
Court should strike LegalZoom’s facts numbered 45 through 59.
III.

LegalZoom’s Facts 60 through 68 Cannot be Admissible in Evidence
LegalZoom’s facts 60 through 68 are based on the proffered testimony of LegalZoom’s

expert Professor Burnele V. Powell. Nothing that Professor Powell says can be admissible in
evidence because his testimony consists of his opinions about how this case should be decided,
and is irrelevant. For these same reasons, Plaintiffs previously moved to exclude Professor
Powell’s testimony, See Doc. 86, 87, which motion is pending. Therefore, the Court should strike
LegalZoom’s summary-judgment facts based on Powell’s testimony.
A.

Facts 60 Through 68 Are Legal Opinions

Under Rule 702 of the Federal Rules of Evidence, expert testimony is limited to
specialized knowledge regarding factual matters. In United States v. Curtis, 782 F.2d 593, 599
(6th Cir. 1986), the court explained, “Experts are supposed to interpret and analyze factual
evidence. They do not testify about the law because the judge’s special knowledge is presumed
to be sufficient … .” Indeed, it is an “axiomatic principle” that expert testimony about law is not
admissible. See, e.g., The Pinal Creek Group v. Newmont Mining Corp., 352 F. Supp. 2d 1037,
1042 (D. Ariz. 2005) As the court in Burkhart v. Washington Metropolitan Area Transit
Authority, 112 F.3d 1207, 1213 (D.C. Cir. 1997), stated, “Each courtroom comes equipped with
a ‘legal expert,’ called a judge.” Similarly, testimony that consists of legal conclusions — the
application of law to facts — is inadmissible because it does not assist the trier of fact, but,
instead, impermissibly invades the role of the court. See, e.g., Farmland Indus. v. FrazierParrott Commodities, Inc., 871 F.2d 1402, 1409 (8th Cir. 1989).

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If permitted to testify at trial, Professor Powell will offer his opinions about whether
LegalZoom is violating Missouri law. This is legal-opinion testimony, which cannot be presented
in an admissible form at trial. For example, LegalZoom offers Professor Powell’s opinions that
what LegalZoom offers Missouri consumers is not what the legal profession has focused on as
the practice of law, (Fact 64), that no computer can practice law (Fact 65), and that LegalZoom
simply does what Quicken Willmaker Plus 2011 and Quicken Legal Business Pro 2011 (Fact
68). The Court is well equipped to determine the law. Professor Powell’s opinions will not assist
the trier of fact, and are not admissible.
B.

Facts 60 through 68 Are Not Relevant

As discussed supra, in § II, A, the facts of consequence in this case are whether
LegalZoom does the law business, defined as (1) drawing or the procuring of or assisting in the
drawing (2) for a valuable consideration (3) any paper, document or instrument affecting or
relating to secular rights. Mo. Rev. Stat. §§ 484.010.2, 484.020; See also Doc. 1-1, Am. ClassAction Pet. at 8.
Nothing in Facts 60 through 68 makes any of these facts of consequence more or less
likely. For example, in Fact 60, Professor Powell opines, “Form books and books containing
information about the law for nonlawyers have been published for centuries … .” This may or
may not be true, but it has nothing to do with whether LegalZoom’s conduct in Missouri violates
§ 484.020. Similarly, in Fact 66, Professor Powell opines, “No reasonable person who is seeking
counsel, advice, recommendations, or explanations would turn to a website … .” Again, this is
not relevant. Plaintiffs never allege that they were seeking LegalZoom’s advice. They simply
allege that LegalZoom did the law business in violation of § 484.020. Nothing in Facts 60

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through 68 sheds light upon this fundamental question. Therefore, the Court should strike
LegalZoom’s facts numbered 60 through 68.
IV.

LegalZoom’s Facts 69 through 75 Cannot be Admissible in Evidence
LegalZoom’s facts 69 through 75 are based on the availability of forms in Missouri. The

availability of forms is not relevant, and in any event LegalZoom failed to disclose that it would
be relying on these documents.
This case only concerns the conduct of LegalZoom. The availability of fillable forms
offered by others is not at issue in this lawsuit. The conduct of others does not bear on whether
LegalZoom violated § 484.020. Moreover, LegalZoom offers fillable-form products that are not
part of Plaintiffs’ class. It is also irrelevant because LegalZoom sells legal documents, not
document-production software.
Furthermore, even if the forms were relevant, as discussed supra, in § II, B, LegalZoom
never disclosed that it would be relying on these documents. Thus, under Rule 37(c)(1), these
documents should be excluded.
Therefore, the Court should strike facts 69 through 75.
V.

LegalZoom’s Facts 76 through 78 Cannot be Admissible in Evidence
LegalZoom’s facts 76 through 78 are based on documents published by the Federal Trade

Commission and the Antitrust Division of the United States Department of Justice. These are not
proper facts at all. Under Rule 56(c)(1), a party may support facts by citing to particular parts of
materials in the record, including depositions, documents, electronically-stored information,
affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials.

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Instead, LegalZoom is simply citing legal authority that it hopes will be persuasive. There
is nothing wrong with citing legal authority in support of its argument, but legal authority should
not be included as “facts” offered in support of a summary-judgment motion. Legal authority is
not admissible in evidence.
Therefore, the Court should strike facts 76 through 78.
VI.

Conclusion
The material cited to support LegalZoom’s facts 45 through 79 cannot be presented in a

form that would be admissible in evidence. Therefore, Plaintiffs object to LegalZoom’s use of
these facts in support of its summary-judgment motion, and move for entry of an order striking
facts 45 through 79, and for all other relief that is just.

Edward D. Robertson, Jr., # 27183
Mary Doerhoff Winter, # 38328
BARTIMUS, FRICKLETON,
ROBERTSON & GORNY
715 Swifts Highway
Jefferson City, MO 65109
573.659.4454, 573.659.4460 (fax)
[e-mail],
[e-mail]

/s/ David T. Butsch
David T. Butsch, # 37539
James J. Simeri, #52506
BUTSCH SIMERI FIELDS LLC
231 S. Bemiston Ave., Ste. 260
Clayton, MO 63105
314.863.5700, 314.863.5711 (fax)
[e-mail]
[e-mail]

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Timothy Van Ronzelen, #44382
Matthew A. Clement, #43833
Kari A. Schulte, #57739
COOK, VETTER, DOERHOFF &
LANDWEHR, PC
231 Madison
Jefferson City, Missouri 65101
573.635.7977, 573.635.7414 (fax)
[e-mail]
[e-mail]
[e-mail]

Randall O. Barnes, #39884
RANDALL O. BARNES & ASSOCIATES
219 East Dunklin Street, Suite A
Jefferson City, Missouri 65101
573.634.8884, 573.635.6291 (fax)
[e-mail]

Steven E. Dyer, #45397
LAW OFFICES OF STEVEN DYER
10850 Sunset Office Drive, Ste. 300
St. Louis, MO 63127
314.898.6715
[e-mail]
Certificate of Service
I certify that on May 12, 2011, I filed the foregoing with the Clerk of the Court using the
CM/ECF system. The system sent notification of this filing to the following:
Party

Counsel
Robert M. Thompson
James T. Wicks
BRYAN CAVE LLP
One Kansas City Place
1200 Main Street, Ste. 3500
Kansas City, MO 64105
816.374.3200, 816.374.3300 (fax)

Defendant
LegalZoom.com, Inc.

John Michael Clear
Michael Biggers
James Wyrsch
BRYAN CAVE LLP
One Metropolitan Square – Ste. 3600
211 N. Broadway
St. Louis, MO 63102
314.250.2000, 314.259.2020 (fax)

/s/ David T. Butsch

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