Janson et al v. LegalZoom.com, Inc.

Filing 180

SUGGESTIONS in opposition re 160 MOTION in limine To Exclude the Testimony of Any Class Members Who Have Opted Out of the Class 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, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Related document(s) 160 ) (Wicks, James)

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.

SUGGESTIONS IN OPPOSITION TO PLAINTIFFS’ MOTION
IN LIMINE (DOC. NO. 160) TO EXCLUDE THE TESTIMONY
OF ANY CLASS MEMBERS WHO HAVE OPTED OUT OF THE CLASS
Defendant LegalZoom.com, Inc. (“LegalZoom”), for its Suggestions in Opposition to
Plaintiffs’ Motion in Limine to Exclude the Testimony of Any Class Members Who Have Opted
Out of the Class (“Motion 160,” Doc. 160), states as follows:
In its Order certifying a class in this lawsuit, the Court described “the central issue of the
case” as “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 § 484.010. Doc. 61 at 10 (quoting § 484.010
RSMo.). No single issue is more relevant to this lawsuit than the “online interaction” between
LegalZoom and its customers.

Yet, through their motion in limine seeking to exclude

individuals who have opted out of the class from testifying, plaintiffs seek to exert a stranglehold
on the very evidence that goes to the core question of the case, choking off any testimony other
than their own. Plaintiffs are incorrect that the testimony of those who have opted out of the

class is irrelevant. And, given its highly probative value in determining the central issue in the
case, such testimony certainly is not more prejudicial than probative.
As noted by the Court in Luce v. United States, 469 U.S. 38, 41 (1984), “[a] reviewing
court is handicapped in any effort to rule on subtle evidentiary questions outside a factual
context.” For this reason, while motions in limine are widely used, many courts have expressed
skepticism when faced with broadly drawn motions in limine. See Sperberg v. Goodyear Tire &
Rubber Co., 519 F.2d 708, 712 (6th Cir.) (“Orders in limine which exclude broad categories of
evidence should rarely be employed.

A better practice is to deal with questions of

admissibility . . . as they arise.”), cert. denied, 423 U.S. 987 (1975); Insignia Sys. Inc. v. News
Am. Mktg. In-Store, Inc., No. 04-4213, 2011 U.S. Dist. LEXIS 10740, at *12 (D. Minn. Feb. 3,
2011) (same); Landers v. Nat’l R.R. Passenger Corp., No. 00-2233, 2002 U.S. Dist. LEXIS
7851, at *7-8 (D. Minn. April 26, 2002) (same); EEOC v. Fargo Assembly Co., 142 F. Supp. 2d
1160, 1161 (D.N.D. 2000) (same).
In support of their argument that the testimony of those who have opted out of the class
should be barred, Plaintiffs cite Wright v. Arkansas & Missouri Railroad Company, 574 F.3d
612, 619 (8th Cir. 2009). However, Wright actually supports LegalZoom’s position. In Wright,
the Eighth Circuit held that the trial court had not erred when it admitted evidence Plaintiffs
sought to have excluded. The Eighth Circuit concluded that the plaintiff “had opened the door
and that it would be prejudicially unfair to leave the jury with the impression” that the plaintiff
created. Wright, 574 F.3d at 619.
Here, as in Wright, Plaintiffs have “opened the door” to customer testimony about
customers’ experience online.

LegalZoom therefore should be permitted to counter the

impression created by Plaintiffs. Indeed, Plaintiffs’ case is founded on the interaction between

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LegalZoom’s website and LegalZoom’s customers.

Plaintiffs should not be permitted to

monopolize the testimony jurors are permitted to hear about the level of interaction between
customers and LegalZoom’s website. In the interest of fundamental fairness, LegalZoom also
must be permitted to call customers who wish to testify about their experience.

Whether

LegalZoom’s software allows customers to efficiently and conveniently represent themselves is a
question of fact, and jurors should be permitted to consider the testimony of former class
members who actually used the product as part of the evidence the jury will consider in reaching
that decision.
Plaintiffs further contend any testimony from individuals who have opted out of the class
action lawsuit would confuse jurors. In support of this argument, Plaintiffs cite Firemen’s Fund
Insurance Company v. Thien, 63 F.3d 754, 758 (8th Cir. 1995), where the court did not allow a
party to submit evidence related to liability in an accident when the sole issue in the case was
whether there was insurance coverage. Id. at 759. But in this case, Plaintiffs seek to exclude
evidence that is not merely “relevant,” but rather cuts to the heart of “the central issue of the
case.” Doc. 61 at 10 (emphasis added).
Plaintiffs next cite Probatter Sports, L.L.C. v. Joyner Technologies, Inc., No. 05-CV2045-LRR, 2007 WL 3285799 (N.D. Iowa Oct. 18, 2007) in support of the notion that “Rule 403
is concerned with unfair prejudice that has undue tendency to suggest decision on an improper
basis.” Motion 160 at 2-3. But in Probatter Sports, the court held that “Rule 403 is concerned
only with ‘unfair prejudice, that is, an undue tendency to suggest decision on an improper
basis.’” Probatter Sports, L.L.C., 2007 WL 3285799, at *5 (citing United States v. Gabe, 237
F.3d 954, 960 (8th Cir. 2001)). The Court in Probatter Sports concluded that “[e]vidence that is

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prejudicial for the same reason that it is probative is not unfairly prejudicial.” Id. (emphasis
added).
Here, Plaintiffs are arguing that their evidence on the LegalZoom process is probative,
while evidence from class members who opted out is prejudicial. Testimony of both types of
witness is probative for the same reason, however. Testimony about how customers interact with
the LegalZoom website goes to the core of the lawsuit.
LegalZoom anticipates the following testimony:
•

Denise Fattic specifically chose LegalZoom because she wanted to draft her own will.
(Declaration of Denise Fattic, attached hereto as Exhibit 1, at ¶ 5.)

•

Jeff Pupillo used LegalZoom several times to create business formation documents
because he considered such documents to be so simple that he could prepare them
himself without the help of a lawyer. (Declaration of Jeff Pupillo, Attached hereto as
Exhibit 2, at ¶ 4.)

•

Robert Collins would have chosen to use a lawyer if he had a complicated estate, but
because he considered his needs to be simple, he chose to use LegalZoom to prepare his
will himself. (Declaration of Robert Collins, Attached hereto as Exhibit 3, at ¶ 3.)

•

Thomas Throneberry expected LegalZoom to provide him with a template so that he
could prepare his own will, and that is precisely what he experienced. (Declaration of
Thomas Throneberry, attached hereto as Exhibit 4, at ¶¶ 4-6.)
Plaintiffs’ motion in limine to exclude opt-out witnesses is closely related to two other

motions in limine from Plaintiffs — motions seeking to keep out evidence that the validity of
LegalZoom documents has not been challenged, that no one was damaged by LegalZoom
documents, that LegalZoom documents are not defective and that LegalZoom customers are
satisfied. Docs. 147 and 163. This shotgun approach to excluding evidence overlooks that one
of the key issues in the case is the “duty to strike a workable balance between the public’s
protection and the public’s convenience.” In re First Escrow, Inc., 840 S.W.2d 839, 844 (Mo.
banc 1992), citing Hulse v. Criger, 247 S.W.2d 855 (Mo. 1952). Evidence that the validity of

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LegalZoom documents has not been challenged and that LegalZoom customers are satisfied,
including those who have opted out of this class-action lawsuit, speaks loudly to the question of
whether the proper balance between the public’s protection and convenience would be struck by
a verdict for plaintiffs.
Finally, Plaintiffs contend that individuals who have opted out of the class should be
prohibited from testifying because LegalZoom disclosed their existence after the close of
discovery. As an initial matter, the Court’s certification of a class on December 14, 2010, see
Order, Doc. 61, made it impossible for LegalZoom to have contact with its Missouri customers,
who were now represented by plaintiffs’ counsel. LegalZoom therefore could not determine
which customers might make good witnesses and disclose them during the discovery period.
Plaintiffs also neglect to mention that they did not provide LegalZoom with a list of optouts until well after the close of discovery, per a schedule that the parties jointly agreed to. The
deadline to opt out of the lawsuit was on or before July 19, 2011. Notice of Pendency of Class
Action, Doc. 102. LegalZoom obviously could not disclose their names prior to the March 9,
2011 close of discovery because LegalZoom did not know their identities until after the
discovery deadline had passed. LegalZoom complied with its duty under Federal Rule of Civil
Procedure 26(e)(1)(A) to disclose the names “in a timely manner.” LegalZoom’s unavoidable
disclosure after the close of discovery should not bar the use of highly relevant and probative
testimony that cuts to the central issue in the case.
CONCLUSION
For the reasons set forth above, LegalZoom respectfully requests that the Court deny
Plaintiffs’ Motion in Limine to Exclude the Testimony of Any Class Members Who Have Opted
Out of the Class.

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Respectfully submitted,
BRYAN CAVE LLP
By: s/ James T. Wicks
Robert M. Thompson
MO #38156
James T. Wicks
MO #60409
Christopher C. Grenz
MO #62914
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.

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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