Janson et al v. LegalZoom.com, Inc.

Filing 177

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)

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IN THE 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,
vs.
LEGALZOOM.COM, INC.,
Defendant.

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No.2:10-CV-040180-NKL

VIDEOTAPED DEPOSITION OF JOHN SMALLWOOD,
produced, sworn and examined on the 14th day of
July, 2011, between the hours of nine o'clock in the
forenoon and twelve o'clock in the afternoon of that
day, at the offices of Cook, Vetter, Doerhoff &
Landwehr, 231 Madison Street, Jefferson City, Missouri,
before Kim D. Murphy, Certified Court Reporter,
within and for the State of Missouri.

EXHIBIT 1
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A. I don't remember.
Q. Okay. But you certainly haven't given a
deposition in this -A. Not in this setting like this, no.
Q. Well, I'm sure Matt has explained some
ground rules. But although we have video, we also have
a court reporter taking down my questions and your
answers. And the answers come across better if you
answer yes or no, rather than uh-huh or huh-uh. It's a
little hard to read on a transcript if we do it that
way.
If you'll also let me finish my question
before you begin to answer, so we don't talk over each
other, it will be easier for Kim.
And I'm sure Matt has told you he will have
occasional objections, and you should not talk while
Matt's objecting so that the objection gets on the
record clearly.
You understand all that?
A. Yes, I do.
Q. What did you do to prepare for your
deposition today?
A. I met with Matt a couple of days ago.
He just explained to me what the procedure was going to
be like.

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Meadows Place -- I assume this lawsuit was a
homeowners' lawsuit or something?
A. Yes, it was.
Q. Give me a little background on that.
A. There was a family that lived, I think,
at 1103 Meadows Place that was trying to turn the
residence into a multi-family apartment complex. And
the neighborhood found that in violation of the
covenants.
Q. What role did you play in that litigation?
Were you simply a named Plaintiff?
A. I'm assuming that's what it was.
I don't -Q. You have no recollection of it; you may
have just been named as a homeowner.
A. As a homeowner.
Q. Okay. Do you know any of the Plaintiffs in
the case? The named Plaintiff?
A. Explain that word to me. I'm not legal.
Q. Okay. Does the name Todd Janson ring a
bell? Do you know Todd Janson?
A. I don't know. But the name rings a bell.
Q. Have you met him?
A. I don't think so.
Q. How about Chad Ferrell?

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Q. How long do you think you met with Matt?
A. About 45 minutes.
Q. Did you read anything in preparation -A. I read through the legal documents that I
received in the mail and e-mails.
Q. Did you review your screen captures of the
LegalZoom website?
A. No. I haven't looked at those in a while.
Q. But you're familiar with them; you know
what I'm talking about?
A. Yes, sir.
Q. Is there -- are you on any medication or
anything today that would keep you from testifying
accurately -A. No.
Q. -- or truthfully?
Could you state your full name and address
for the record, please.
A. John Edward Smallwood.
Q. And where do you live, Mr. Smallwood?
A. 1109 Meadows Place, Jefferson City,
Missouri, 65101.
Q. And when were you born?
A. June 17, 1966.
Q. Was the -- I have to ask, since you live on

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A. No. I know I've never met him. The name
sounds familiar.
Q. You understand he's a representative
Plaintiff in the case?
What about Gerald Ardrey?
A. No, I don't recognize that.
Q. Can you tell me how long you've known
Plaintiffs' counsel?
MR. CLEMENT: Since there's several of us,
you may want to be specific.
BY MR. WICKS:
Q. Matt, for example, how long have you known
Matt?
A. March, 2011.
Q. Do you know anyone in the Cook, Vetter firm
besides Matt?
A. No.
Q. Personally, socially?
A. No. I mean, no. Mayor Landwehr was mayor.
I think we might have said "hi" twice. I'm sure he
doesn't know who I am.
Q. Tell me what your occupation is.
A. Computer repair. I own a computer
business.
Q. That's Smallwood Technologies?

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A. That is correct.
Q. And what does Smallwood Technologies do?
A. We provide computer support for small
businesses, mainly in the Jefferson City area.
We support businesses that are 20 computers
or less. We do provide some computer repair for home
computers. And we have a different division that
people bring computers to us to be repaired.
Q. So you deal with computer hardware and
software issues?
A. We don't develop software, but we support
it. We install it, support it, keep systems running.
Q. What's your title at Smallwood
Technologies?
A. President.
Q. Does the company go by STI or Smallwood -A. The legal name is STI Technology Solutions.
We're doing business as Smallwood Technologies.
Q. You refer to it as Smallwood Technologies?
A. Yes.
Q. How many employees do you have?
A. Nine, including myself.
Q. And what's your -- do you specialize in
computer hardware basically?
A. We specialize in company support. I mean,

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photography degree?
A. That's what the emphasis was in.
Technically, it's industrial technology with an
emphasis in photography.
Q. You're self-taught on computers.
When did you start messing with computers?
Like me, the TRS80 in 1976 or something?
A. Well, no, I wasn't -Q. Not that old; right?
A. I didn't have enough money at that time to
buy one.
Messing around with them was probably
around 1982. Whenever I got an Atari system.
Seriously got into them around 1998.
Q. Well, what happened between '82 and '98?
I'm sorry.
A. I took Cobalt and 4 Trans, and it knocked
me off computers. And I decided I didn't want anything
to do with the program.
Q. And Cobalt -- go ahead.
A. It's just -- that's the honest answer.
I took -- I don't remember, something in college -- and
it was -- that was not interesting to me.
And at that time, mainframes were the only
computers that were out there. And I went a different

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I know that's kind of a general term, but that's what
we do. We make it a point that our customers can come
in in the morning and do their job; they don't have
hardware or software issues.
Q. So do you -- describe yourself. Do you
advertise as having any particular specialty?
A. Myself? Or the business?
Q. Or the company. Yourself first.
A. No. My specialty is I'm a damn good
salesman. I understand what a customer wants, and I
come up with a solution for them. And that's what my
specialty is.
Q. But you must have computer training,
don't you?
A. Self-taught.
Q. Did you not take classes?
A. No. I have a photography degree.
Q. I was going to come to your education, but
since we're there, tell me about it.
A. I graduated in 1989 from Northeast Missouri
State University.
Q. And -A. With a Bachelor of Science in Industrial
Technology.
Q. And you said -- did you say you had a

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path in college and went a different way.
When I got out of college, I worked for an
engineering firm. Decided I didn't care to wear the
suit and tie every day.
Went off to Alaska and lived up there for
five years, and enjoyed my life until I met my wife.
And when I met my wife -Q. You may want to strike that you enjoyed
your life until you met your wife; would you like to
revise your remarks?
A. No. I'm honest. I just didn't have any
responsibility until I met her. And then I decided I
needed health insurance and got into computers.
Q. All right. You mentioned Cobalt and
4 Trans; those are programming languages, correct?
A. Yes.
Q. Did you -- did you not understand them?
Did you just find them difficult? What put you off of
them?
A. They bored me to tears.
Q. Explain why.
A. Sit there and type all day and program,
work that out.
Q. I never really got past Basic, and that was
boring enough.

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A. I'm more of a hands-on person.
Q. Did you ever do anything else with
programming when you got back in in '98?
A. No. No.
Q. Now, does your company -- well, let me mark
an exhibit here.
(Deposition Exhibit No. 1 was marked for
identification.)
BY MR. WICKS:
Q. Is this -- do you recognize this,
Mr. Smallwood?
A. Uh-huh. I do.
Q. You're welcome to look at it. This is -tell me what this is.
A. This is the home page of our current
website.
Q. And your company does do some work with
software; right? I mean, if a customer has a software
problem, you'll fix it?
A. We'll either fix it, or we'll call that
software technical support department and work with
them to resolve the problem.
Q. And flip to the last page of that. The
support links, does that say support links for
Windows XP, Mac, Windows Vista, and 7, and Linux?

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Q. And do you have any other, you know,
professional certifications or licensing?
A. No.
Q. Can you tell me about Smallwood
Technologies itself? When did you start it?
A. April 1st, I think -- somewhere around
there -- March 27th of 2002. That's when I started the
business.
Q. All right. What year did you tell me you
graduated from college?
A. '89.
Q. Can you take me through your work history
from '89 up till 2002?
A. It's complicated.
Q. We have time.
A. I'm an active guy. After I graduated
college, I was going to go into the Peace Corps. While
I was waiting, I worked at the Dillard's here in
Jefferson City. And they wanted to call me in on the
day that my sister was getting married. And I opted to
go to her wedding, and they dropped me because I didn't
take the dead date.
Q. Let me ask what you did at Dillard's.
A. Sold men's underwear and ties.
Q. So I guess Dillard's didn't end well;

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A. Linux.
Q. I never heard it pronounced.
A. What that is is, those are links. Those
are shortcuts. If you click on that, it allows us to
initiate a remote connection to remotely take over your
computer.
And the way that each one of those
applications are written, they're specific for that
operating system. So just to make it easier on our
customers, they can click on one of those four,
depending on what type of computer they're working on,
and it would initiate a process that would allow us,
through the Internet, to take over their computer.
Q. Okay.
A. And then we can resolve problems without
having to drive over there.
Q. Okay. Do you have any certifications in
the computer field?
A. No, I do not.
Q. Are you licensed to do anything?
I understand you can be certified on Microsoft programs
and that sort of thing.
A. You can be.
Q. But you're not?
A. No.

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what was next?
A. Oh, Dillard's ended fine. I just -- that
was just a filler while I was waiting to go into the
Peace Corps.
Q. All right.
A. I went out to Indianapolis, where a friend
of mine worked for an engineering firm, and got hired
as a CAD draftsman for a company called Frates
Engineering (ph sp.)
Q. Explain what CAD is.
A. Computer-aided drafting. I was an
Intergraph and AutoCAD drafter.
Mainly, my first part of the job with them
is, we tickled with development plates from GM. They
were all the auto parts, and we converted them over to
digital.
So I just sat there and drank soda and
gained five pounds a day drawing pictures all day long.
Q. And the drawing pictures was done on a
computer?
A. Correct. Correct. I replicated the paper
chart over to -- the paper drawing over to the
computer.
They subcontracted me over to Everett
Architects and Engineers, which was another drafting

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firm in downtown Indianapolis. I worked for them for
about six months doing plumbing.
I worked with an engineer named Keith, who
didn't care to touch a computer, so he drew everything
on paper, passed it me, and I put it all in the
computer for him.
How much detail do you want, I guess, is
the question?
Q. We can maybe do a little less.
When you say "plumbing," you weren't
repairing toilets.
A. No, I was drawing.
Q. Computer-aid drawing?
A. That's correct. They did hospitals and
high schools. Those were the projects that we worked
on.
After nine or ten months of doing this type
of work, I was bored. And the adventure side came back
out. Sold my stuff, got in my car, drove to Alaska,
and stayed there for five years.
Q. What'd you do there?
A. I was a fry cook most of the time. Worked
in a breakfast cafe cooking breakfast for people. It
was a great life. I had to come up with $300 a month.
No pressure on anything.

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'91 -- if I remember -- no. '97? '96? He got
married, I think, in '96. I don't remember.
But I came down for his wedding. And I
ended up meeting my wife down here. And decided that
she wasn't going to move up there, so I would move down
here. So I was framing houses down here for a living.
And when I asked her to marry me, I decided I better
have a more stable, secure job. So this is where my
career started.
I went over to Jefferson City Medical
Group, because I knew -- the doctors' firm in
Jefferson City at that time had many locations -- and
they were getting ready to consolidate into one
building. And they needed a Windows person. You know,
to work with their Windows computers. Because they
were a unique-based system up to that time.
Q. And how had you -- I mean, you become
proficient in Windows?
A. That's what I'm getting ready to explain to
you.
Q. Okay. I'll just let you go.
A. And I went over and met with Judy Zehmke.
And I just flat out told her that if she hires me, I
can do it. There's no bones about it. It will be
done. And she hired me. And I did it.

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Q. Your rent was 300 or your living expenses?
A. One hundred percent living expenses were
$300 a month.
Q. Huh?
A. While I was there, I was the public
librarian for the school. I EMT'd for the ambulance
system. I worked as a set carpenter for the Anchorage
Opera Company.
Q. Explain what a set carpenter is; you built
sets?
A. Built sets. We did -- one year I worked
for them, which was a winter job, was full time.
I built sets for them, making basically for the stage
productions where they would bring professional opera
people in. I never met them; I just built the sets.
And I worked as a horseback ring leader for
a hunting guide for two seasons, where gentlemen like
yourselves would come in to go hunt moose, and bears,
and I'd take care of the camp. I'd take care of the
horses. Take care of feeding them. Making them happy.
Q. Did the term "dude" enter it at any point?
A. No. It wasn't like the movie.
Q. All right. Well -A. And so I did that for a while. I came back
to Missouri. My father was getting married. And in

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Q. And you learned?
A. And that's when I did it. Because I walked
in and did it. I don't mean to sound cavalier, but -Q. If you have a gift -A. But that's how it is.
Q. If you have a gift, you have a gift.
A. If you have something to do, you do it.
Q. So how long were you in that job?
A. I worked there nearly five years. A couple
months short of five years from when I got that job.
And I started a business because I had
enough independent companies asking me on the side to
do the work for them to help them out with things.
And, once again, I was kind of bored being in the
structured regimen working for a company, so it sounded
more interesting to go out and do the work myself.
Q. Does that -- remind me the name of the
company before you started your own company?
A. Jefferson City Medical Group.
Q. Okay. Right. And what were your duties
there?
A. My primary duties, for the first couple
years, were Windows '95, Windows '98 support. It's
basically go around to all the employees, make sure
what they needed to do is working so they can do their

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job.
As time went on, I took over as total
communications director for the company. And I did not
have a management position, but I was in charge of the
Siemens phone system that they had. And that included
the 500-or-some-odd numbers of extensions that worked
in the building. Maintaining that system. Maintaining
long distance. Maintaining cell phones. On-call
schedules. After-hours. Anything to do with the
doctors and their communications, so they could have
their pagers work, their cell phones would work.
Audited all the bills. Make sure they weren't paying
more than they had to be paying.
Q. Did you give up your Windows
responsibilities?
A. It was probably more like 80/20 at that
point.
Q. Eighty/20 telecom?
A. Eighty percent telecom, 20 percent Windows,
yeah.
Q. And you started Smallwood Technologies in
March or April of 2002?
A. Yeah.
Q. Tell me about that. How'd you start that?
Just yourself?

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A. Uh-huh. I had to let him go somewhere
there in the spring of '03. It was right after that I
hired another gentleman. And then I would say
probably -- I'm sure the math doesn't work perfect -somewhere around six to eight months after that I was
adding an employee each time.
Q. How long have you had nine now, would you
say?
A. Full-time?
Q. Yeah.
A. I've had nine full-time since May.
Q. Of this year?
A. I've had two of those full-time -- or
part-time for the year previous to that when they were
completing school.
Q. All right. What sort of people do you
hire? I mean, do you look for people with computer
background?
A. I look for people with computer background,
but more importantly, who are able to communicate,
without you feeling lost or being condescended to.
Q. And speak computerese?
A. Can speak human.
Q. Who doesn't speak computerese?
A. You can speak it so you understand what

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A. Just myself. Working out of my basement.
I initially had about twelve, thirteen clients
full-time. Within a year, I'd built up to close to 40.
Corporate clients.
And at that point I hired another employee.
And my wife told me to move out of the house since I
had somebody else working for me.
And just over time, from there we've added
more customers and more people to handle the work.
Q. And has the work you do at Smallwood
Technologies changed?
A. Not a lot. Not a lot. Microsoft products
have changed some. I mean, Exchange 2003 works a lot
different than the new Exchange 2010. Windows 2008
server is a whole lot different than 2000 was, or 2003.
But, for the most part, no, it hasn't changed very
much. It's just how you operate it or how you maintain
it is different.
Q. Can you remember approximately when you
added your first employee?
A. Pretty good. It was probably around
November or December of '02, 2002.
Q. And then what about the next employee?
You say you're up to nine now; is that right? Nine,
including yourself?

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they're talking about.
Q. Do you -- does Smallwood Technologies have
any in-house teaching programs? Do you have a training
program for your employees?
A. Customer service training program we offer,
but we don't do -Q. No computer training?
A. The -- no formal. Not formal.
Q. What about informal?
A. Usually they'll stick with me for the first
couple weeks to a month. I'll drag a new employee
around with me to meet the customers, to understand
what I talk about it, and what I do.
Then a lot of times they will pair up with
a more experienced technician to work with them.
We'll start to give them more complicated projects with
supervision, either from another technician or from
myself. Which, honestly, I can't do what a lot of
these guys half my age can do, but that's why I hire
them, because they can do it.
So we work together to understand what
holes in that person's knowledge needs to be corrected
or filled in and work on that.
Q. Do you do any lecturing or teaching, or
anything like that, outside of your own company?

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Q. Okay. And do you expect to receive a
trademark? Or tell me where that is.
A. Well, according to the e-mail, I'm given -which I'm assuming I have -- it's been sent to the
federal government for review. Three months from now
I'll get an answer, at the earliest.
Q. Yeah. So if that's approved, you'll have a
trademark on that logo?
A. That would be correct.
Q. Okay. And the real estate deed transfer,
did you intend to actually transfer that deed from
Sunset Group to yourself?
A. No.
Q. What is Sunset Group?
A. Sunset Group is an LLC owned by myself and
another partner that owns the building that I own.
That was the legal entity set up to purchase the
building that I own.
Q. So you don't intend to -A. No. That would probably result in a fist
fight. I don't want to sign that, no.
Q. So you don't intend to record that deed
transfer?
A. No.
Q. Do your partners in that building know that

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you -A. No, sir.
Q. -- here today?
A. No, sir.
Q. But are you an employee of Mr. Clement's
firm?
A. Subcontractor.
Q. Have you been paid for this?
A. Yes.
Q. Explain to me what your arrangement was.
A. I was asked to make the documents, the
document fee that I spent, and to bill my normal
billing rate, plus the expense that I paid for the
documents, to the firm.
Q. You're being paid for your testimony today?
A. I believe so, yes.
Q. How much time do you have vested in this so
far?
A. Oh, rough number, after today, probably
12 hours.
Q. And you told me you don't expect to testify
in trial? Or you don't know?
A. I don't know if I'm going to be testifying
in trial.
Q. But you're available --

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you did this?
A. Yes.
Q. And they understand you don't intend to -A. Yes.
Q. Did you research any other legal document
companies before you used LegalZoom?
A. No.
Q. Do you have a claim against LegalZoom?
Are you a class member in the case?
A. No, sir.
Q. I don't know if he is or not.
A. Unless my name's on there that I don't know
about.
Q. Did you receive Notice?
A. No. Unless I didn't read some
correspondence close enough.
Q. But you haven't opted out of the case, have
you?
A. I have received -- as of this time, I don't
remember ever receiving anything asking me to be in or
be out. The only correspondence I've received in
relation to this is a request to make four documents
and then whatever I got back from LegalZoom relating to
those four documents.
Q. Are you -- is Mr. Clement representing

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A. That would be correct.
Q. -- to come to trial?
Have you been -- have you received payment
yet.
A. Yes, I have.
Q. How much have you been paid?
A. About 24, $2500. And that would include
the cost of the four documents.
Q. I see. Your usual rate is $85 an hour?
A. Eighty-five an hour.
Q. And how many hours, 10 or 12?
A. I'm going to guess around that.
MR. THOMPSON: Guys, that's not adding up.
MR. WICKS: Well, and the document costs.
Whatever the cost of the documents is.
THE WITNESS: Yeah. That total amount is
the time to create it and then the cost of the
documents.
MR. WICKS: All right. Let's take a short
break and we'll come back. I am close to the end.
THE VIDEOGRAPHER: Off the record at
11:40 a.m.
(An off-the-record discussion was held.)
THE VIDEOGRAPHER: On the record at
11:44 a.m.

27 (Pages 102 to 105)

POHLMANUSA COURT REPORTING [phone]

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