Janson et al v. LegalZoom.com, Inc.
SUGGESTIONS in opposition re 156 MOTION in limine to Exclude Improper Opinion Evidence from John Smallwood filed by James T. Wicks on behalf of Defendant LegalZoom.com, Inc.. Reply suggestions due by 8/26/2011 unless otherwise directed by the court (Attachments: # 1 Exhibit 1)(Related document(s) 156 ) (Wicks, James)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
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,
Case No. 2:10-cv-04018-NKL
SUGGESTIONS IN OPPOSITION TO PLAINTIFFS’
MOTION IN LIMINE (DOC. NO. 156) TO EXCLUDE
OPINION EVIDENCE FROM JOHN SMALLWOOD
Defendant LegalZoom.com, Inc. (“LegalZoom”), for its Suggestions in Opposition to
Plaintiffs’ Motion in Limine to Exclude Opinion Evidence From John Smallwood (“Motion
156,” Doc. 156), states as follows:
Plaintiffs wholly mischaracterize the nature and purpose of John Smallwood’s
(“Smallwood”) anticipated testimony and, based on this mischaracterization, fabricate the
present motion in limine to exclude “improper opinion evidence.”
The most obvious fallacy in Plaintiffs’ argument is that LegalZoom does not intend to
elicit any expert opinions from Smallwood, nor has LegalZoom given any indication of an intent
to do so. To the contrary, as acknowledged in Motion 156, Smallwood was named as a witness
by Plaintiffs, who hired Smallwood to access LegalZoom’s website and prepare documents and
screen captures. See Motion 156 at 1-2.
Smallwood is the President and owner of Smallwood Technologies, a company that
provides computer support and software installation, repair and support to small businesses in the
Jefferson City area. Exhibit 1, 9:22-10:16, 14:17-15:16. Smallwood has a Bachelor of Science
in Industrial Technology. Id., 11:18-24. Smallwood, who describes himself as “self-taught,”
started “messing with” computers in 1982 and “[s]eriously got into them around 1998.” Id. at
Smallwood worked as a computer-aided draftsman for Frates Engineering,
converting development plates for auto parts into digital format. Id. at 17:5-16. After that,
Smallwood worked at Jefferson City Medical Group working with the facility’s Windows
computers. Id. at 20:10-21:19. Smallwood’s primary duties at Jefferson City Medical Group
were “Windows ’95, Windows ’98 support,” serving as communications director, maintaining
and running the Siemens phone system, long distance, cell phones, and pagers. Id. at 21:2222:13. Smallwood started Smallwood Technologies in 2002. Id. at 22:21-23.
Motion 156 seeks to downplay Smallwood’s experience by saying that he owns a
“computer repair company” and “is merely a fact witness as to how documents are created by
LegalZoom from a customer’s perspective and the process by which the necessary information is
gathered.” Motion 156 at 2. Certainly, Plaintiffs themselves could testify to the customer’s
perspective and the information gathered by LegalZoom. But Plaintiffs sought out Smallwood,
who describes himself as a “subcontractor” of Plaintiffs’ counsel’s firm, and paid him $85 an
hour to prepare documents on LegalZoom’s website and provide testimony regarding the same.
Exhibit 1, 103:25-105:12. Smallwood’s experience in the computer industry is presumably why
Plaintiffs retained him as a witness. And as a result of Plaintiffs’ retention of Smallwood,
Smallwood now has personal experience creating documents on LegalZoom’s website.
The testimony LegalZoom intends to present will be limited to Smallwood’s personal
experience using the LegalZoom website and his perceptions regarding the same based on his
experience in the computer industry.
Such testimony is permitted under Federal Rules of
Evidence 701 and 702.
See Allied Sys., Ltd. v. Teamsters Auto. Transport Chauffeurs,
Demonstrators & Helpers, 304 F.3d 785, 792 (8th Cir. 2002) (“‘Personal knowledge or
perception acquired through review of records prepared in the ordinary course of business, or
perceptions based on industry experience’” provide foundation for lay testimony.) (quoting
Burlington N. R.R. Co. v. Nebraska, 802 F.2d 994, 1004-1005 (8th Cir. 1986)). Plaintiffs hired
Smallwood — a computer businessman — to prepare documents on LegalZoom’s website,
thereby giving him personal experience. They disclosed Smallwood as a fact witness regarding
the process of preparing documents using LegalZoom. But now they seek to prevent LegalZoom
from questioning Smallwood regarding this experience. Plaintiffs should not be permitted to
have their cake and eat it too.
Plaintiffs’ argument that Smallwood’s testimony should be excluded because he has not
been disclosed as an expert witness is likewise without merit. Rule 26’s expert disclosure
requirements apply to opinions “acquired or developed in anticipation of litigation or for
trial . . . .” See Dallas v. Marion Power Shovel Co., Inc., 126 F.R.D. 539, 540 (S.D. Ill. 1989)
(emphasis in original). Because Plaintiffs have failed to show that Smallwood’s opinions were
developed in anticipation of trial, their argument fails. See id. “Although [Smallwood] may
have expert knowledge within the field of [computers],” that knowledge was not procured “for
litigation purposes.” Id. As such, LegalZoom “is not attempting to [elicit] expert opinions that
have been acquired as part of trial preparation.” Id. Rather, LegalZoom seeks only to elicit
Smallwood’s opinion based on his general computer knowledge and his experience preparing
documents on LegalZoom’s website. As such, Smallwood is not a witness whose disclosure is
required by Rule 26(a)(2). Id.
Smallwood was disclosed as Plaintiffs’ own witness, LegalZoom does not intend to elicit
any expert testimony from Smallwood, and the lay opinion testimony LegalZoom intends to
elicit is permitted under the Federal Rules of Evidence. See Eckelkamp v. Beste, 315 F.3d 863,
872 (8th Cir. 2002) (affirming district court’s refusal to strike affidavits that plaintiffs claimed
were “undisclosed expert opinion” because “‘perceptions based on industry experience’ provide
foundation for lay testimony.”) (quoting Burlington N. R.R. Co., 802 F.2d at 1004). Certainly,
Smallwood has sufficient computer experience to form a conclusion as to whether a computer
can think. See Katoch v. Mediq/PRN Life Support Servs., Inc., No. 4:04-CV-938-CAS, 2006 WL
516843, at *3 (W.D. Mo. Mar. 2, 2006) (“A lay witness’s testimony in the form of opinions or
inferences need only be rationally based on perception and helpful to a determination of a fact
issue.”) (quoting Burlington N. R.R. Co., 802 F.2d at 1004).
For the reasons set forth above, LegalZoom respectfully requests that the Court deny
Plaintiffs’ Motion in Limine to Exclude Opinion Evidence From John Smallwood.
BRYAN CAVE LLP
By: s/ James T. Wicks
Robert M. Thompson
James T. Wicks
Christopher C. Grenz
One Kansas City Place
1200 Main Street, Suite 3500
Kansas City, MO 64105
Tel.: (816) 374-3200
Fax: (816) 374-3300
John Michael Clear
Michael G. Biggers
One Metropolitan Square – Suite 3600
211 North Broadway
St. Louis, MO 63102
Tel.: (314) 259-2000
Fax: (314) 259-2020
Attorneys for LegalZoom.com, Inc.
CERTIFICATE OF SERVICE
I hereby certify that on August 9, 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/ James T. Wicks
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