Janson et al v. LegalZoom.com, Inc.

Filing 192

SUGGESTIONS in opposition re 150 MOTION in limine Regarding LegalZoom's Documents Disclosed After Discovery Deadline 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, # 5 Exhibit 5)(Related document(s) 150 ) (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.

POHLMANUSA COURT REPORTING [phone]

EXHIBIT 4

90492d63-bf0c-498c-b2a9-4ba5f3b83c7b

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or -4
A. No.
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Q. -- any interviews?
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A. Yes, I have. I know for the Missouri
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Bar -- twice I want to say -- and I gave some talks to
them, mainly about prevention of Spyware and viruses. 8
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But that's probably the extent of that.
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Q. Why the Missouri Bar? I mean -11
A. Because they came to me.
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Q. Are all your customers lawyers?
A. We have a fair share of lawyers. They came 13
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to us and said they were putting on some seminar -15
I guess that's the proper term -- and they asked me if
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I'd come and talk. Didn't get any money for it; I just
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went down and talked to them.
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Q. What about newspaper interviews, anything
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like that? The local paper ever call you up -20
A. Yes, they've called me. But I've refused.
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Q. Why?
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A. Just makes me uncomfortable.
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Q. Good publicity, wouldn't it be?
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A. Jim, we're busy. We are busy. I mean,
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I don't look for anything more. I've got more work

A. No. No, I don't.
Q. Have you published anything on computers

A. That is correct.
Q. This paragraph 3 of Smallwood 2 says: You
logged onto the LegalZoom website in March on the 3rd,
the 9th and the 10th; does that sound right?
A. Uh-huh.
Q. And you purchased four documents?
A. Uh-huh. Yes. I'm sorry. Yes.
Q. And four documents were a Last Will and
Testament, an LLC, and -- well, you have General
Warranty Deed -- let's set that aside -- three of the
documents: A Last Will and Testament, LLC, and
Trademark Registration; is that correct?
A. Yes, sir.
Q. What you were describing as a Warranty Deed
was actually a Warranty Deed transfer; is that right?
From -A. That is correct.
Q. -- from Sunset Group, I think, is that the
right name?
A. Yes.
Q. To you personally?
A. Yes, sir.
Q. All right. I'm going to ask you to have a
look at your screen captures on those documents.
(Deposition Exhibit No. 3 was marked for

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than we can handle the way it is. And I'm -- that's
just the truth. I mean, I'm not trying to sound
conceited. We're busy. And I've got a ten-year old
that I spend all my evening time with. So I'm not
letting my job consume my life. I don't look for
anything extra right now.
Q. Well, let's -- since -- you're such a busy
guy -- let's move into the documents in this case.
Do you remember signing a Declaration?
(Deposition Exhibit No. 2 was marked for
identification.)
BY MR. WICKS:
Q. Was this May possibly? Does that look
familiar?
A. Uh-huh.
Q. I surmised this was written for the
purpose -- for you from interviews, and you signed it?
Or did you write it yourself?
A. I did not write this myself.
Q. Okay.
A. I'll stand corrected. Matt and I must have
met in February.
Q. But flip to the back page and look at the
signature date; does that indicate you signed it in
May?

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identification.)
BY MR. WICKS:
Q. Could you have a look at that,
Mr. Smallwood. Does that look familiar?
A. Yes, it does.
Q. Actually, I'd like you to flip through
every page of it, if you wouldn't mind.
Tell me if you recognize all the pages of
that.
A. (The witness complied.) Okay. Yes, I do.
Q. And are these the screen captures you took
while you were on the LegalZoom website? And are these
the screen captures that relate to your purchase of a
Last Will and Testament?
A. Yes, they are.
Q. And do these pages in front of you,
Smallwood 3, does that accurately reflect the content
of the website when you were on it?
MR. CLEMENT: I'm going object to that
question as being vague, as to what the content of the
website is.
BY MR. WICKS:
Q. Does it accurately reflect the pages you
saw when you were purchasing your Last Will and
Testament?

8 (Pages 26 to 29)

POHLMANUSA COURT REPORTING [phone]

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A. Oh. Did I say that wrong again? Provide
legal service (sic) or apply the facts of law to your
particular situation. LegalZoom and its services are
not substitutes for the advice of an attorney.
Q. And you don't believe you read that?
A. No, I do not.
Q. Is there a reason you didn't click on the
Terms-of-Service link there on page -- are we on 47?
A. Laziness.
Q. All right. You could have read the
Terms of Service at any point if you'd wanted to,
correct -A. Yes.
Q. -- if you'd clicked on the link? All
right. I think you may set -- you understand the
language you just read out of the Terms of Service and
the terms that you described?
A. I believe I do, yes.
Q. Has anyone mentioned the term "suitcase" to
you?
A. No, sir.
Q. In the context of -- so you don't know what
LegalZoom does with the answers to the questionnaire,
for example, on the Last Will and Testament that they
internally call a suitcase?

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Q. They're in shorthand of some sort; right?
A. Right.
Q. But they appear -- the right-hand column
appears to be the answers you answered to the
questionnaire?
A. Right.
Q. Do you have in front of you Smallwood 7,
I believe?
A. Yes, I do.
Q. And you testified you didn't click on the
View-Sample-Documents link, correct?
A. Correct.
Q. Okay.
A. Not that I remember. No. I don't believe
so.
Q. You'd have taken a screen capture if you'd
gone to that page; right?
A. Correct.
Q. I'll hand you what I've marked as 11.
Can you read the first paragraph of the
first page there?
A. It says: Last Will and Testament. These
are sample documents. Actual content and language may
vary based on your answers to the LegalZoom
questionnaire and could differ by state.

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A. I've not heard that name.
Q. You never heard that?
A. No.
Q. I'll represent to you that's a LegalZoom
document.
Could you have a look at the right column
on that document and tell me what appears in that
column.
MR. CLEMENT: I'll object as calling for
speculation and lacks foundation. If you know the
answer, you can answer his question.
BY MR. WICKS:
Q. What's it look like to you? Does it look
familiar?
A. Yes, it looks familiar. It looks like the
answers that I entered to the questions on the website.
Q. Would you -- do you want to compare the
screen captures to the column of Exhibit 10, and tell
me if you're sure that those are the answers you
entered?
A. (The witness complied.)
Q. What do you think?
A. Well, I would say that the answers look the
same. The questions on the second column don't match
exactly.

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Q. Read the next paragraph for me as well.
A. LegalZoom grants you permission to view and
print these sample documents for your personal
informational and non-commercial use. They may not be
reproduced or sold for any purposes. You're answers to
the LegalZoom questionnaires have not been applied to
sample documents, so they are not fit for use.
Included documents is your Last Will and Testament PDF.
Q. Okay. I represent to you that this is what
comes up when you click the View Sample Documents link
in Smallwood 7; you would not have seen this, correct?
A. That is correct.
Q. But you could have clicked on the
3-Step-Process link, and could have clicked on the
View-Sample-Document link at any time; right?
A. That is correct.
Q. You just didn't. Is there any reason why
you didn't?
A. I've seen wills before. I didn't -Q. Okay. Flip to the second page. And you've
seen wills before. Does this look like a will?
A. Yes.
Q. Does it say the Last Will and Testament of
John Doe?
A. Yes, it does.

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paragraphs of the Statements of Interment, Cremation
and Wishes, in the sample it's Interment and Burial
Plot, and in your will reads: It is my desire that my
remains be cremated; is that correct?
A. Oh. Yes.
Q. And you entered in answer to a question on
the LegalZoom website that you wished your remains to
be cremated, correct?
A. Yes.
Q. And the witness attestation clause at the
end of that page, you see everywhere John Doe appears
in the sample paragraph the words John Smallwood appear
in your will?
A. Yes.
Q. I think you can set those aside.
Let's go off the record for a minute.
THE VIDEOGRAPHER: Off the record at 10:53.
(An off-the-record discussion was held.)
THE VIDEOGRAPHER: On the record at 10:54.
BY MR. WICKS:
Q. Do you have in front of you Smallwood
Exhibit 4?
A. Yes. Yes, I do.
Q. Could you just flip through that quickly
and tell me if this contains the actual answers you

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Take as much time as you need.
A. (The witness complied.) It appears to
match, yes.
Q. Let's go back to page 4 of Exhibit 4.
A. What number do you have? Page -- I'm
sorry?
Q. Page 53. Are you with me on page 4?
A. Yes.
Q. I'm sorry, page 53 of Exhibit 4.
A. Yes.
Q. Do you see the 3-Step-Process tab there?
A. Yes.
Q. And you didn't click on that, or we'd have
a screen capture of that page, wouldn't we?
A. That is correct.
Q. So we can assume you didn't view a sample
document for the LLC; is that correct?
A. That is correct.
Q. But you could have clicked on the
3-Step-Process link at any time, correct?
A. As long as it was functioning, yes.
Q. If it was there, you could have clicked on
a View Sample Documents link on that page if it was
there?
A. If it was functioning, yes.

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entered in filling out the questionnaire on the website
for the LLC product.
A. (The witness complied.) Yes, it is.
Q. You do recognize the answers, correct?
A. Yes, I do.
Q. And I don't want to go through all of them,
but it certainly -- this document does reflect the
answers that you entered, correct?
A. Yes.
Q. And, once again, I'm going to hand you the
suitcase containing the LLC purchased.
Could you look through the right-hand
column of Exhibit 13 and tell me if that contains the
answers that you just reviewed in Exhibit 4.
MR. CLEMENT: Again, I'll object as calling
for speculation and lacks foundation.
Subject to that, if you know, you can
answer.
BY MR. WICKS:
Q. You haven't seen this document before?
A. I've not seen Exhibit 13, no.
Q. You can look at the answers, and in the
right-hand column, and tell me if they are the answers
you entered in response to the questionnaire for the
LLC product.

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Q. Again, can you tell me why you didn't click
on the three-page -- or the 3-Step-Process link when
filling out the LLC questionnaire?
I think your answer last time might have
been laziness.
A. Well, it probably was. I was just going to
fill the form out, and the steps that were there with
the steps that were there.
Q. But you could have, assuming this link was
live, you could have clicked on it at any time; right?
A. As long as it was live, yes.
Q. I'll hand you what I've marked as 14,
which, I'll represent to you, is a sample at that link.
We'll go through this one quickly.
Does the first page of this document say,
the samples are for the State of Colorado. Actual
content differs by state, and it varies based on the
LegalZoom questionnaire?
A. Yes.
Q. And the second sentence -- or the last
sentence -- Your answers to the LegalZoom questionnaire
have not been applied to these sample documents so they
are not fit for use?
MR. CLEMENT: Excuse me, Jim, the document
speaks for itself. He never testified to seeing it.

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POHLMANUSA COURT REPORTING [phone]

90492d63-bf0c-498c-b2a9-4ba5f3b83c7b