Janson et al v. LegalZoom.com, Inc.

Filing 160

MOTION in limine To Exclude the Testimony of Any Class Members Who Have Opted Out of the Class filed by Timothy W. Van Ronzelen on behalf of All Plaintiffs. Suggestions in opposition/response due by 8/19/2011 unless otherwise directed by the court. (Attachments: # 1 Exhibit)(Van Ronzelen, Timothy)

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

PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF ANY
CLASS MEMBERS WHO HAVE OPTED OUT OF THE CLASS
Come now, Plaintiffs, by and through counsel, and for their Motion in Limine to Exclude
the Testimony of Any Class Member who Opted Out of the Class, and states as follows:
I. Introduction
Discovery in this mater closed on March 9, 2011. See, Scheduling Order (Doc. #22). On
July 15, 2011, months after discovery closed, Legalzoom submitted its First Supplemental Rule
26(a)(1)(A) disclosure to Plaintiffs on July 15, 2011. A copy of these disclosures is attached
hereto as Exhibit 1 and incorporated herein by reference. In these new disclosures, Legalzoom
identifies four individuals who chose to opt out of the case after getting notice of the pendency of
the class action. Legalzoom claims that these individuals have information “regarding the use,
operation, and content of LegalZoom’s website and its online document preparation services for
consumers.” See, p. 3 of Exhibit 1.
Calling class members who opted of a class action is clearly improper for a number of
reasons. First, the testimony of opt outs would be irrelevant. The use of LegalZoom’s
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“document preparation services” will be testified to by others in this case; including plaintiffs
and employees of the defendant. Class members who opted out of the case have nothing new to
add to this case that would assist the jury in determining a fact in issue and their testimony would
be cumulative at best. Second, to the extent that opt out witnesses have relevant information in
this case, their testimony should be excluded due to the fact that probative value of any of their
testimony is greatly outweighed by its prejudicial value. Finally, they were first disclosed to
Plaintiffs after the close of discovery and slightly more than a month before trial. Accordingly,
Plaintiffs did not have an adequate opportunity to depose them.
II. Argument
“Federal Rule of Evidence 402 provides that irrelevant evidence is inadmissible.” Wright
v. Ark. & Mo. R.R. Co., 2009 U.S. App. LEXIS 16719, *12 (8th Cir. July 29, 2009). “Evidence
is relevant if it has ‘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 the
evidence.’” Id. at *12-13 (quoting Fed. R. Evid. 401). “A district court is given broad discretion
to determine the relevance of evidentiary matters.” Id. at 13.
Rule 403 of the Federal Rules of Evidence provides “[a]lthough relevant, evidence may
be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403. “Confusion of the
issues warrants exclusion of relevant evidence if admission of the evidence would lead to
litigation of collateral issues.” Firemen's Fund Ins. Co. v. Thien, 63 F.3d 754 (8th Cir. 1995).
Rule 403 is concerned with unfair prejudice that has undue tendency to suggest decision on an

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improper basis. Probatter Sports, LLC v. Joyner Technologies, Inc., 2007 WL 3285799
(N.D.Iowa, October 18, 2007).
The use of the services offered by Legalzoom is relevant in this case. Indeed, the
plaintiffs will demonstrate to the jury through the testimony of plaintiffs, other properly
disclosed witnesses, and Legalzoom’s employees just what services Legalzoom provides in the
preparation of legal documents for class members. Legalzoom has disclosed its own employees
as well to describe how the document preparation process works. In light of this testimony, there
is nothing the opt out class members have knowledge of that will assist the jury in determining a
fact in issue.
Legalzoom, in an effort to do anything to confuse and mislead the jury, is not so subtly
attempting to suggest that since these people didn’t want to be a part of the class, there is nothing
wrong with what Legalzoom is doing. These opt out witnesses will almost certainly be asked by
Legalzoom whether they were happy with their experience, whether they thought Legalzoom
was a lawyer and other similarly irrelevant questions. Quite simply, except for attempting to
interject collateral and duplicative issues in front of the jury, opt out class members offer nothing
to assist the jury in making factual determinations in this case. The only information that an opt
out witness might have that is relevant to this case is simply to explain how the Legalzoom
website works from the consumer’s perspective. There are numerous other witnesses will testify
to this as described above. Pursuant to Rule 403, this evidence should be excluded since it
would be duplicative of evidence that will be offered by others. In addition, opt out witnesses
would confuse the jury since they would not know what that means or why they opted out of the
class. This would lead to litigation of collateral matters and likely prejudice the jury against the
plaintiffs. Accordingly, plaintiffs respectfully request that the Court enter an Order prohibiting

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opt out witnesses identified in Legalzoom’s First Supplemental Rule 26 disclosure from being
allowed to offer any testimony in this case.
Respectfully submitted,

____/s/Timothy Van Ronzelen ____
Timothy Van Ronzelen, #44382
Matthew A. Clement, #43833
Kari A. Schulte, #57739
COOK, VETTER, DOERHOFF & LANDWEHR
231 Madison
Jefferson City, Missouri 65101
Telephone: [phone]
Facsimile: 573-635-7414
[e-mail]
[e-mail]
[e-mail]

and

Edward D. Robertson, Jr., # 27183
Mary Doerhoff Winter, # 38328
BARTIMUS, FRICKLETON, ROBERTSON
& GORNY
715 Swifts Highway
Jefferson City, MO 65109
Telephone: [phone]
Facsimile: 573 659-4460
[e-mail]
[e-mail]

David T. Butsch, # 37539
James J. Simeri, #52506
BUTSCH SIMERI FIELDS LLC
231 S. Bemiston Ave., Ste. 260
Clayton, MO 63105
Telephone: [phone]
Facsimile: 314-863-5711
[e-mail]
[e-mail]

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Randall O. Barnes, #39884
RANDALL O. BARNES & ASSOCIATES
219 East Dunklin Street, Suite A
Jefferson City, Missouri 65101
Telephone: [phone]
Facsimile: 573-635-6291
[e-mail]

Steven E. Dyer, #45397
LAW OFFICES OF STEVEN DYER
10850 Sunset Office Drive, Ste. 300
St. Louis, MO 63127
Telephone: [phone]
[e-mail]

ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I certify that on August 2, 2011, I served this paper upon the following via this Court’s
ECF system:

Party

Counsel
Robert M. Thompson
James T. Wicks
Christopher C. Grenz
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/ Timothy Van Ronzelen __

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