Janson et al v. LegalZoom.com, Inc.

Filing 120

SUGGESTIONS in opposition 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 Robert M. Thompson on behalf of Defendant LegalZoom.com, Inc.. Reply suggestions due by 6/13/2011 unless otherwise directed by the court (Related document(s) 114 ) (Thompson, Robert)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

TODD JANSON, GERALD T. ARDREY, CHAD M.
FERRELL, and C & J REMODELING LLC, on behalf of
themselves and on behalf of all others similarly situated,
Plaintiffs,
Case No. 2:10-cv-04018-NKL
v.
LEGALZOOM.COM, INC.,
Defendant.

DEFENDANT LEGALZOOM.COM, INC.’S SUGGESTIONS IN OPPOSITION
TO PLAINTIFFS’ MOTION TO STRIKE SUMMARY JUDGMENT FACTS

BRYAN CAVE LLP
Robert M. Thompson
MO #38156
James T. Wicks
MO #60409
One Kansas City Place
1200 Main Street, Suite 3500
Kansas City, MO 64105
Tel.: [phone]
Fax: [phone]
John Michael Clear
MO #25834
Michael G. Biggers
MO #24694
One Metropolitan Square – Suite 3600
211 North Broadway
St. Louis, MO 63102
Tel.: [phone]
Fax: [phone]
Attorneys for Defendant LegalZoom.com, Inc.

Unable to contradict or otherwise challenge nearly half of the undisputed facts set forth in
support of LegalZoom’s motion for summary judgment, Plaintiffs have instead moved to strike
undisputed facts 45 through 79 on the basis that they “cannot be presented in a form that would
be admissible in evidence.” Doc. 115 at 1. In their effort to defeat summary judgment, in any
manner, Plaintiffs misunderstand the purposes for which these facts are offered and misconstrue
LegalZoom’s obligations under and compliance with Fed. R. Civ. P. 26. Each of the 35 facts is
properly submitted to the Court – and Plaintiffs’ failure to create any genuine issue regarding
these facts underscores that they help mandate summary judgment in favor of LegalZoom.
I.

Facts 45 Through 59 Are Relevant And Were Not Subject To Rule 26 Disclosure
Facts 45 through 59 describe the divorce kit at issue in In re Thompson, 574 S.W.2d 365

(Mo. banc 1978), by reference to the court records in that case. Plaintiffs do not challenge the
authenticity of these court records or the relevance of In re Thompson. Instead, Plaintiffs argue
that descriptions of the divorce kit are not relevant; and that LegalZoom is precluded from
submitting these facts under Rule 37(c)(1) because it failed to properly disclose under Rule 26
the publicly-available court records it used to formulate these descriptions. Doc. 115 at 2-5.
Plaintiffs are wrong on both counts. Accordingly, there is no basis to strike facts 45 through 59.
A.

Relevance

In its certification Order, the Court stated that “the central issue of th[is] case” is “what
type of online interaction between buyer and seller of legal forms constitutes ‘assisting in the
drawing for a valuable consideration of any paper, document or instrument affecting or relating
to secular rights’” under the Missouri UPL statute. Doc. 61 at 10. Critical to the determination
of that issue is an understanding of what activities have been found by courts not to fall within
the statutory language. See Eisel v. Midwest BankCentre, 230 S.W.3d 335, 338-39 (Mo. banc

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2007) (Because UPL statute is “merely in aid of, and do[es] not supersede or detract from, the
power of the judiciary to define and control the practice of law,” “one who may be in violation of
the text of section 484.020 may defend a claim under the statute by showing a conflict between
the text and activities that this Court has determined to be the authorized practice of law.”) As a
result, any information that may allow the Court to better understand a court’s determination of
whether a particular activity is permissible or, if necessary, help the finder of fact to compare
activities authorized by law with the challenged activities, is relevant to this case. Indeed,
Plaintiffs spend a significant portion of their summary judgment opposition describing the facts
underlying various Missouri cases and arguing that LegalZoom’s practices are more closely
aligned with those facts than with the facts underlying In re Thompson. Doc. 113 at 44-53.
Plaintiffs argue, however, that “LegalZoom is not entitled to offer evidence from In re
Thompson into evidence in this case” “[b]ecause nothing about the conduct of the respondent in
In re Thompson relates to the conduct of LegalZoom.” Doc. 115 at 2. This argument misses the
point. LegalZoom has not offered facts 45 through 59 to establish its own conduct – something
that evidence obviously could not do. Instead, LegalZoom has offered facts 45 through 59 to
assist the Court in understanding the implications of In re Thompson, and therefore
understanding what the Missouri Supreme Court considers – and does not consider – to be the
unauthorized practice of law. Considering Plaintiffs’ repeated references in their summary
judgment opposition to the facts underlying other Missouri UPL decisions, Plaintiffs’ argument
that this information is irrelevant can hardly be taken seriously.1

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Guiliano v. Town of N. Greenbush, No. 95-cv-0855, 1997 WL 31434 (N.D.N.Y. Jan. 21,
1997), cited by Plaintiffs, is inapposite. Guiliano held that a party cannot defeat summary judgment
by citing the factual record in an unrelated case rather than presenting any proof that facts in the case
at hand are actually disputed. 1997 WL 31434, at *2 n.3. This has no bearing on a party’s ability to
offer evidence of the facts of another case in order to assist a court in determining whether that case
is analogous – which is all LegalZoom has done here.

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Plaintiffs’ argument also puts form over substance. Certainly, had the In re Thompson
Court described the divorce kit in detail in the opinion or published a copy of the divorce kit as
an appendix, Plaintiffs could not argue that citation to the Court’s own description or appendix is
inappropriate – any more than LegalZoom could challenge Plaintiffs’ recitation of the facts in
other UPL cases as inappropriate. The result should not be different simply because LegalZoom
has supplemented In re Thompson’s descriptions with relevant information from the record in
that case.
B.

Rule 26 Disclosures

Facts 45 through 59 are based entirely upon a copy of the divorce kit contained within the
public court records for In re Thompson. Not only was LegalZoom not obligated to disclose
these public records under Rule 26, but Plaintiffs had ample notice of LegalZoom’s intent to rely
on the divorce kit and have therefore suffered no harm.
Rule 26 does not require a party to disclose or produce public records. Cooper v. Old
Dominion Freight Line, Inc., --- F. Supp. 2d ---, No. 09-2441-JAR, 2011 WL 977578, at *4, n.18
(D. Kan. Mar. 17, 2011) (overruling objections because documents at issue were official public
record and search result from public database, and “plaintiff has not established that these public
records are subject to disclosure under Fed. R. Civ. P. 26, nor that they should be stricken under
Rule 37 for failure to disclose”); Bey v. City of New York, No. 99 Civ. 3873, 2010 WL 3910231,
at *4 (S.D.N.Y. Sept. 21, 2010) (denying motion to strike publicly available court records
because records were not in defendant’s sole control and plaintiff could obtain the records from
court archives, and therefore defendant was not obligated to produce them);

Kormos v.

Sportsstuff, Inc., No. 06-CV-15391, 2007 WL 2571969, at *2 (E.D. Mich. Sept. 4, 2007) (“[I]t is
well established that discovery need not be required of documents of public record which are

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equally accessible to all parties.” (internal quotation marks omitted)); Krause v. Buffalo & Erie
Cnty. Workforce Dev. Consortium, Inc., 426 F. Supp. 2d 68, 89-90 (W.D.N.Y. 2005) (denying
motion to strike because voter registration cards and board of elections records were public
documents equally accessible to all parties, and therefore need not have been disclosed); see also
Nucor Corp. v. Bell, No. 2:06-CV-02972-DCN, 2008 WL 4442571, at *16 (D.S.C. Jan. 11,
2008) (denying motion to exclude expert testimony because no harm resulted from party’s
failure to disclose publicly available source upon which expert based opinion); Thomas v.
Guardsmark, Inc., No. 02 C 8848, 2005 WL 1629770, at *5 (N.D. Ill. July 7, 2005) (refusing to
sanction plaintiff for failure to produce public bankruptcy filings). Plaintiffs do not cite a single
case striking public records. As stated by the court in Bey, 2010 WL 3910231, at *4, “[s]ince
[LegalZoom was] not required to produce the documents, the predicate for preclusion – violation
of Rule 26(a) or (e) – is absent and, in turn, there is no basis for preclusion pursuant to Rule
37(c)(1).”
Moreover, LegalZoom provided Plaintiffs with ample notice that it intended to rely on
the In re Thompson court records. “There is no duty to supplement a Rule 26 disclosure if the
information ‘has been otherwise made known to the parties in writing or during the discovery
process . . . .’” Smith v. Pfizer, Inc., 265 F.R.D. 278, 283 (M.D. Tenn. 2010) (quoting Fed. R.
Civ. P. 26(e) 1993 advisory committee’s note). Regardless of what documents may have been
listed in LegalZoom’s initial Rule 26 disclosures, the expert witness report of Dean Bernele V.
Powell specifically lists the “Divorce Kit from In re Thompson” as materials reviewed and/or
relied on in formulating his opinions and as an exhibit that will be used to summarize or support
his opinions. Expert Witness Report Ex. 3-4. This expert witness report was served on Plaintiffs
on February 15, 2011 – nearly two months before LegalZoom filed its motion for summary

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judgment. Doc. 70. This disclosure could not be more clear, and fully complied with the expert
disclosure requirements set by Rule 26 and this Court’s orders.
For the same reasons, even if this Court were to find that LegalZoom failed to disclose
the divorce kit, any such failure was harmless and cannot support striking the evidence.
Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008) (“The district court may exclude the
information or testimony as a self-executing sanction unless the party’s failure to comply [with
Rule 26] is substantially justified or harmless.” (emphasis added)); Smith v. Tenet Healthsystem
SL, Inc., 436 F.3d 879, 889 (8th Cir. 2006) (any failure to disclose documents under Rule 26 was
harmless, where expert discussed documents during deposition and plaintiff was therefore on
notice that expert might rely on documents during trial).
LegalZoom also could have moved the Court to take judicial notice of the divorce kit in
In re Thompson, rather than submitting the divorce kit as part of its expert disclosures. Stutzka v.
McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (courts may take judicial notice of public
records); S.E.C. v. Shanahan, 600 F. Supp. 2d 1054, 1058 n.2 (E.D. Mo. 2009) (courts frequently
take judicial notice of court records). In that event, Plaintiffs would have received less notice but
would not be permitted to complain.
Nor can Plaintiffs seriously argue that they have been harmed because they “do not have
the opportunity to seek their own discovery from In re Thompson.” Doc. 115 at 4-5. Regardless
of discovery deadlines, Plaintiffs can now – as they always could – obtain any part of the In re
Thompson court record that they deem relevant.
II.

Facts 60 Through 68 Are Relevant And Are Not Legal Opinions
Facts 60 through 68 set forth Dean Powell’s expert opinion regarding the history of

enforcement of restrictions on the unauthorized practice of law, the legal profession’s historical

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understanding of what constitutes the practice of law, and the ways in which various legal selfhelp tools operate in comparison to LegalZoom. Because Plaintiffs cannot challenge Dean
Powell’s credentials or the reliability of Dean Powell’s opinions, they simply rehash the
arguments set forth on their pending Motion to Exclude Expert Testimony. Compare Doc. 87
with Doc. 115 at 5-7. LegalZoom has fully responded to these arguments in its Suggestions in
Opposition to that motion (Doc. 103), which are incorporated herein by reference; as a result,
LegalZoom only briefly addresses Plaintiffs’ arguments here.
A.

Legal Opinion

Plaintiffs contend that Dean Powell’s expert testimony is inadmissible because it consists
of legal opinion regarding “how this case should be decided” and “the application of law to
facts.” Doc. 115 at 5-6. This is incorrect. Cases consistently recognize that lawyers may testify
as experts in cases involving the practices and standards applicable to the legal profession. E.g.,
Police Ret. Sys. of St. Louis v. Midwest Inv. Advisory Serv., Inc., 940 F.2d 351, 357 (8th Cir.
1991); United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991); Metro. St. Louis Equal
Housing Opportunity Council v. Gordon A. Gundaker Real Estate Co., 130 F. Supp. 2d 1074,
1092 (E.D. Mo. 2001). This includes testimony regarding mixed questions of law and fact on the
history, practices, and standards of a business or industry, including the practice of law. See,
e.g., Marx & Co. v. Diners’ Club, Inc., 550 F.2d 505, 508-09 (2d Cir. 1977).
Although Plaintiffs argue against these cases in their Reply Suggestions in Support of
Motion to Exclude Expert Testimony, their arguments are based on a faulty interpretation of the
extent and purpose of Dean Powell’s testimony.

For example, like the expert in Police

Retirement System, Dean Powell is an “ideal witness to explain the history and purpose” of the
Missouri UPL statute and the manner in which the legal profession has interpreted UPL statutes,

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and these explanations are entirely appropriate in order to provide the Court (and, if necessary,
the jury) information that will assist it in deciding the ultimate issue. 940 F.2d at 357. Unlike
the expert in Police Retirement System, however, Dean Powell does not take the extra step of
“lectur[ing]” on the meaning of the Missouri UPL statute or giving “extended explanations of
why the defendant[’s] conduct was completely sheltered by that provision.” Id. Nor does Dean
Powell provide an opinion on the ultimate legal issue.
B.

Relevance

Plaintiffs contend that Dean Powell’s opinions are irrelevant for essentially the same
reason that they contend the divorce kit in In re Thompson is irrelevant: that activities
traditionally found to be permissible despite limitations on the unauthorized practice of law have
no bearing on whether LegalZoom’s activities constitute the unauthorized practice of law. See
Doc. 115 at 6-7. Plaintiffs are wrong again, for the same reasons discussed in part I.A above.
Moreover, “[d]oubts regarding whether an expert’s testimony will be useful should generally be
resolved in favor of admissibility.” United States v. Finch, 630 F.3d 1057, 1062 (8th Cir. 2011).
Because Dean Powell’s testimony “will assist the trier of fact to understand the evidence or
determine a fact in issue” by addressing relevant facts such as the history of enforcement of
restrictions on the unauthorized practice of law, the legal profession’s historical understanding of
what constitutes the practice of law, and the ways in which various legal self-help tools operate
in comparison to LegalZoom, his testimony is admissible under Fed. R. Evid. 702.
Accordingly, Dean Powell’s testimony is entirely appropriate and there is no basis to
strike facts 60 through 68.

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III.

Facts 69 Through 75 Are Relevant And Were Properly Disclosed
Facts 69 through 75 describe various legal self-help tools that are available for purchase

in Missouri or are available to the public through the Missouri Bar, Secretary of State, or
Supreme Court websites.

Plaintiffs argue that these facts are irrelevant because “[t]he

availability of fillable forms offered by others is not at issue in this lawsuit,” and argue that these
tools were not properly disclosed. Doc. 115 at 7. Again, Plaintiffs are incorrect. There is no
basis for precluding use of the documents and no basis to strike facts 69 through 75.
A.

Relevance

These facts are relevant for the reasons discussed in parts I.A and II.B above: they are
probative to an understanding of the historically acceptable legal self-help tools available in
Missouri and hence to the determination of what constitutes the unauthorized practice of law.
This naturally includes tools that are currently available and accepted within Missouri.
B.

Rule 26

It makes no more sense to require LegalZoom to disclose these publicly-available legal
self-help tools than it does to require the disclosure of public records. LegalZoom has done
nothing more in its summary judgment motion than establish that these tools exist. Like public
records that need not be disclosed, these tools are “equally accessible to all parties.” Krause, 426
F. Supp. 2d at 90. Like public records that need not be disclosed, these tools were not “in the
sole control of” LegalZoom, and Plaintiffs “could obtain the documents” on their own at any
time. Bey, 2010 WL 3910231, at *4. Indeed, it’s likely that Plaintiffs’ counsel was aware that
these types of tools exist – Plaintiffs themselves may have considered using these exact tools in
lieu of LegalZoom, and Plaintiffs’ counsel may have investigated these tools when determining
which entities to sue for the unauthorized practice of law. Under these circumstances, Plaintiffs

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can hardly claim that LegalZoom was obligated to disclose the existence of these publicly
available tools, or that Plaintiffs were somehow harmed by any alleged failure to disclose.
Furthermore, LegalZoom did properly disclose its intent to rely on these tools. Dean
Powell’s expert witness report, which was served on Plaintiffs in accordance with Rule 26 and
this Court’s orders regarding expert disclosures, specifically discusses the tools available through
the Missouri Secretary of State and Supreme Court websites. Compare SOF ¶¶ 74-75 to Expert
Witness Report at 20-21. Dean Powell also lists the Secretary of State and Supreme Court
websites, along with various other legal self-help websites, as materials reviewed and/or relied
on in forming his opinions. Expert Witness Report Ex. 3. This put Plaintiffs sufficiently on
notice regarding LegalZoom’s intent to rely upon various publicly available self-help tools. Fed.
R. Civ. P. 26(e)(1)(A) (party’s duty to supplement disclosures arises only “if the additional or
corrective information has not otherwise been made known to the other parties during the
discovery process or in writing”); Smith v. Pfizer, 265 F.R.D. at 283 (“There is no duty to
supplement a Rule 26 disclosure if the information ‘has been otherwise made known to the
parties in writing or during the discovery process . . . .’”); see also Tenet Healthsystem SL, 436
F.3d at 889 (expert’s discussion of documents during deposition put plaintiff on notice, and any
failure to disclose documents under Rule 26 was therefore harmless).
As for the remaining self-help tools described in facts 69 through 73, LegalZoom did not
locate these tools and determine that it “may use [them] to support its claims or defenses” until
LegalZoom was preparing its motion for summary judgment.

LegalZoom had no duty to

disclose these tools before this time and disclosed these tools in a timely manner when it filed its
motion for summary judgment. See Malozienc v. Pac. Rail Servs., 572 F. Supp. 2d 939, 943-44
(N.D. Ill. 2008) (refusing to strike undisclosed evidence under Rule 37(c)(1) because party

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disclosed documents as soon as possible after discovering them); see also Fed. R. Civ. P. 26(e)
1993 advisory committee’s note (“Supplementations need not be made as each new item of
information is learned . . . .”).
IV.

Facts 76 Through 79 Are Properly Considered By The Court2
Facts 76 through 79 set forth comments by the FTC and the Antitrust Division of the

U.S. Department of Justice regarding the American Bar Association’s Proposed Model
Definition of the Practice of Law. Plaintiffs admit that these documents are properly considered
by the Court, but essentially argue that LegalZoom has described the documents on the wrong
page of its summary judgment suggestions. Doc 115 at 7-8 (documents are properly cited as
“legal authority” rather than “facts”). Although LegalZoom is gratified by the idea of elevating
these documents to the status of legal authority, they do not have the force and effect of law; they
are properly regarded as, and admissible as, factual evidence of the views of relevant industry
and regulatory officials as to the history of UPL statutes and legal self-help tools like those at
issue in this case. In either event, the documents and LegalZoom’s description of them are
properly considered by the Court in support of summary judgment. Accordingly, there is no
basis to strike facts 76 through 79.
V.

Conclusion
For the reasons discussed above and in LegalZoom’s Suggestions in Opposition to

Plaintiffs’ Motion to Exclude Expert Testimony, facts 45 through 79 are not the proper subject of
Fed. R. Civ. P. 56(c)(2) objections and should not be stricken.

As a result, LegalZoom

respectfully requests that the Court deny Plaintiffs’ Motion to Strike in its entirety.

2

Plaintiffs do not include fact 79 in their detailed discussion. For purposes of responding to
the Motion to Strike, LegalZoom presumes that Plaintiffs oppose fact 79 for the same reasons as facts
76 through 78.

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Respectfully submitted,
BRYAN CAVE LLP
By: s/ Robert M. Thompson
Robert M. Thompson
MO #38156
James T. Wicks
MO #60409
One Kansas City Place
1200 Main Street, Suite 3500
Kansas City, MO 64105
Tel.: [phone]
Fax: [phone]
John Michael Clear
MO #25834
Michael G. Biggers
MO #24694
One Metropolitan Square – Suite 3600
211 North Broadway
St. Louis, MO 63102
Tel.: [phone]
Fax: [phone]
Attorneys for LegalZoom.com, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on May 27, 2011, I electronically filed the above and foregoing with
the clerk of court using the CM/ECF system, which will send notice of electronic filing to all
counsel of record.

s/ Robert M. Thompson

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