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PLAINTIFFS’ OPPOSITION TO ZILLOW’S MOTION TO STRIKE
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HONORABLE JOHN CHUN Noted for Hearing: April 20, 2015
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR THE COUNTY OF KING
MOVE, INC., a Delaware corporation, REALSELECT, INC., a Delaware corporation, TOP PRODUCER SYSTEMS COMPANY, a British Columbia unlimited liability company, NATIONAL ASSOCIATION OF REALTORS®, an Illinois non-profit corporation, and REALTORS® INFORMATION NETWORK, INC., an Illinois corporation,
Plaintiffs,
vs.
ZILLOW, INC., a Washington corporation, ERROL SAMUELSON, an individual, and CURTIS BEARDSLEY, an individual, and DOES 1-20,
Defendants.
Case No. 14-2-07669-0 SEA PLAINTIFFS’ OPPOSITION TO ZILLOW’S MOTION TO STRIKE PLAINTIFFS’ NOTICE OF SUPPLEMENTAL SUPPORT AND DECLARATION
FILED15 APR 16 AM 11:56
KING COUNTYSUPERIOR COURT CLERK
E-FILEDCASE NUMBER: 14-2-07669-0 SEA
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Zillow’s Motion to Strike is noting more than a misguided attempt to prevent the Court’s
consideration of damning admissions from a whistleblower who Zillow claims is very likely one
of its executives—its Vice President of Strategic Partnerships. Zillow inappropriately positions
its motion as if the parties are in the middle of trial and the Court must decide whether the
whistleblower letter should go to the jury—relying authentication, hearsay, and admissibility
objections. This is a discovery motion, and the strict rules of admissibility simply do not apply.
No matter, Zillow’s admissibility complaints are largely belied by its own admissions regarding
the contents of the whistleblower letter and the identity of the author, who Zillow states sent the
letter while still a Zillow employee. Thus, the whistleblower letter has been authenticated by
Zillow, and is not hearsay.
Zillow fails to cite even one reasonably applicable authority that a whistleblower letter
from one of its own employees should be excluded during a discovery motion. Instead, it relies
on cases regarding a home foreclosure, a horse breeding contest, a driver’s license revocation
appeal, and a criminal molestation appeal—none related to discovery issues. Each case concerns
an appeal or final determination of a matter, not what is the proper use of a whistleblower letter
to warrant discovery. Those cases reveal the proverbial bottom of the barrel to which Zillow
attempts to reach to distract attention from evidence catching it in acts of severe wrongdoing and
hiding evidence from plaintiffs.
Zillow also trumpets the supposed inaccuracy of the whistleblower letter—five times in
its motion to strike, six times in a one-page declaration to support the motion to strike, and eight
times in its submission to the Special Master this week—calling the letter false, inaccurate,
misleading, unfounded, or any number adjectives to tarnish the letter. Yet Zillow has not, and
will not, say what specifically is incorrect. In fact, it is quite ironic that Zillow claims the letter
is so inaccurate to not be trusted, but then alleges it contains important Zillow trade secrets,
which by definition must be true. Zillow’s motion to strike, the submission to the special master,
and Zillow’s motion to seal portions of the letter and its corresponding reply brief, are all silent
about what is inaccurate. According to Zillow, the whistleblower letter is from a knowledgeable
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source (a Zillow Vice President), and its authenticity or the knowledge of the author cannot be
challenged and does not warrant striking the letter in this discovery context.
Of course, Zillow’s claim that the whistleblower letter contains “trade secrets” is wrong
as a matter of law because a defendant’s methods for stealing the plaintiffs’ trade secrets cannot
themselves be protectable trade secrets. The issue of whether Zillow can use the judicial process
to immunize and seal from public view Zillow’s unlawful conduct will be addressed in a separate
motion to this Court. But, for purposes of Zillow’s motion to strike, it makes no difference
whether or not the whistleblower letter contains any supposed trade secrets of either party (and
Zillow does not even make this argument).
Lastly, the letter is relevant to this discovery dispute. Defendants have destroyed
evidence, failed to produce a substantial amount of documents, which has resulted in numerous
motions to compel that defendants fight tooth and nail with emphatic declarations of innocence
and alleged compliance with their discovery obligations. The whistleblower letter shines a bright
light on what plaintiffs have suspected all along; defendants have been withholding large
categories of documents and simply cannot be trusted to produce relevant documents, which is
why the third party subpoenas are critical for plaintiffs’ case.
I. STATEMENT OF FACTS
A. Defendants Have Been Caught Destroying Evidence Before.
Plaintiffs National Association of Realtors and Move, Inc. operate the realtor.com real
estate website. Plaintiffs are suing their biggest competitor, Zillow, Inc. and two former Move
executives that Zillow poached from Move in 2014 for misappropriation of trade secrets, tortious
interference, and breaches of fiduciary duty. On June 30, 2014, the Court issued a preliminary
injunction against defendants finding, among other things, that defendant Errol Samuelson
misappropriated plaintiffs’ trade secrets. The Court also drew negative inferences against
defendants because Samuelson took steps to destroy evidence from his computers. On February
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11, 2015, this Court issued an Order To Show Cause Re Contempt For Defendants’ Violation of
The Preliminary Injunction, which was subsequently settled out of court.
In short, this is not an ordinary case with ordinary defendants. The Court has already
concluded they destroyed evidence. Experts have confirmed they destroyed evidence. And
plaintiffs have complained for months that defendants are systematically hiding evidence in
secret non-Zillow email accounts and file-sharing services. Defendants have denied the claims,
deriding them as “silly” conspiracy theories and claimed they have produced their documents,
supposedly even from non-Zillow emails and file sharing services.
B. A Whistleblower Has Revealed that Defendants Continue to Hide Evidence and
Misappropriate Trade Secrets.
Last Thursday, April 9, the plaintiffs received an anonymous whistleblower letter.
Zillow now confirms the whistleblower letter is authentic when it describes that it was written by
a Zillow employee. The two-page whistleblower letter corroborates plaintiffs’ allegations in this
case and provides more details about defendants’ misappropriation and other unlawful conduct.
Regarding Mr. Samuelson and his conduct while enjoined by this Court, the whistleblower letter
states: “Was he working while on injunction? yes, absolutely. Was he careful so you couldn’t
catch him, yes, absolutely.” April 10, 2015, Singer Dec., Sub. 536, Ex. A. The letter also
confirms that defendants have stolen multiple documents and entire databases, are using the
stolen information, and are hiding evidence on non-Zillow electronic services. The
whistleblower letter discloses that Mr. Beardsley has stolen copies of Move’s “private MLS
contact database, listing count database and other databases,” and that Mr. Beardsley uses these
stolen databases through a non-Zillow Google Docs1 account to attempt to shield them from
discovery. Id. Mr. Beardsley’s use of the stolen Move databases was not hidden, but “many
other employees have witnessed him using this database … to benefit Zillow’s efforts. Id.
1 Google Docs is a web-based application where documents can be created, edited and stored online, and then
accessed from any computer with an Internet connection and web browser.
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The whistleblower identifies specific individuals, specific documents, and specific
locations to search for evidence of defendants’ unlawful conduct. For instance, it lists Mr.
Samuelson’s last two assistants by name, identifies the Concur system Zillow uses for expenses,
identifies names of more than a dozen Zillow employees and specifies the information each
person knows. Id.
The whistleblower also exposes Samuelson’s failure to comply with the Court’s
preliminary injunction by disclosing his meetings in “private meeting rooms at a hotel” near the
Inman Technology Conference, and that Beardsley booked those rooms. The whistleblower also
reveals that Zillow CEO Rascoff would have known that Samuelson was violating the injunction
by actively working on matters prohibited under the injunction because he “has to personally
approve large amounts” in the expense reports. Id.
The extensive detail in the whistleblower letter, with employee names, details of the
misdeeds, identification of the stolen databases, dates of particular events, and the recitation of
facts only an employee would know, are more than sufficient detail to give the letter
credibility—certainly enough to reject Zillow’s arguments otherwise.
C. Because the Whistleblower Letter is Relevant to the Pending Motions, Plaintiffs
Promptly Shared it With the Court and Opposing Counsel.
On Friday, April 10, at 10:00 a.m., plaintiffs submitted the whistleblower letter to this
Court as further evidence of defendants’ ongoing misappropriation and related cover-up. This
new evidence is relevant to the two pending motions regarding the scope of third-party document
subpoenas to Trulia and the Goldman Sachs and J.P. Morgan investment banks involved in
Zillow’s acquisition of Trulia, which plaintiffs contend was instigated by a tip from Samuelson
(while a Move executive) to Zillow’s CEO that a Move/Trulia merger was forthcoming.
The whistleblower letter discredits Zillow and Samuelson’s blanket denials of
responsibility regarding Samuelson’s tip to Zillow, and Zillow’s subsequent Trulia acquisition.
Those same declarants (Rascoff and Samuelson) have also declared in filings to this Court that
Samuelson was not working during the injunction. The letter specifically refutes those
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declarations and alleges that Samuelson was “absolutely” working during the injunction,
“absolutely” being careful to hide his conduct, and that his conduct was known to Rascoff.
Thus, the letter raises serious doubts about all of Rascoff’s and Samuelson’s declarations,
including the outright denials provided to the Special Master that led to the Special Master’s
slashing of the scope of the subpoenas to Trulia and the investment banks.
In addition, plaintiffs have received no documents from Zillow regarding the illegal
conduct disclosed in the whistleblower letter, such as the stolen Move databases and information
stored on non-Zillow Google Docs cloud storage—even though plaintiffs moved to compel
production of information stored on gmail and non-Zillow cloud storage locations, which was
met with defiant denials that any documents were being withheld. Plaintiffs have received no
documents regarding Samuelson’ meeting with MLSs in private hotel rooms in violation of the
injunction, which is described in detail in the whistleblower letter. The end result is that
plaintiffs cannot rely on defendants to satisfy their obligations to produce the necessary and
required discovery, which is why the third party discovery that is the subject of these Motions is
so critical—they may be the only reliable source of documents.
Because the whistleblower letter calls into serious question defendants’ denials and their
ability to provide fulsome discovery, it is appropriate evidence for this Court to consider when
deciding whether the Special Master orders should be revised.
II. ARGUMENT
A. Zillow’s Complaints Regarding the Whistleblower Letter’s Admissibility are Both
Irrelevant and Incorrect.
Zillow’s arguments that the whistleblower letter is inadmissible, not authentic, and
hearsay are not valid bases to strike the document, and are not even true. The proper standard for
this discovery motion is not admissibility. Indeed, CR 26(b)(1) explicitly states: “It is not
grounds for objection that the information sought will be inadmissible at the trial if the
information sought appears reasonably calculated to lead to the discovery of admissible
evidence.” CR 26(b)(1). The rule equally applies to this situation where the allegedly
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inadmissible documents is only being used in the discovery context. Fleming v. Parnell, 2014
WL 25621, at *2 (W.D. Wash. Jan. 2, 2014) (allowing discovery based on affidavit over hearsay
objection because the party did not submit the affidavit “at trial to prove the truth of the matter
asserted,” but instead to support a motion to compel discovery of relevant documents.) The
same is true here.
Zillow argues that the letter is unsigned and therefore inadmissible to support its effort to
strike the letter from the record. It misleadingly quotes only select portions of Wilkerson v.
Wegner to further its argument—leaving out a key differentiating segment: “The certifications
considered by the trial court were not signed under penalty of perjury nor were they sworn
statements …. [W]e do not consider such ‘certifications’ to be competent proof ….” (Br. at 6),
but Zillow withholds the key finish to the quote “not competent proof in a summary judgment
proceeding.” 58 Wash. App. 404, 408 fn. 3. This is not a summary judgment proceeding, or a
trial. It is discovery. The standards are different, and Zillow surely understands the distinction.
Zillow’s intentionally misleading recitation of an already strained case highlights the lengths it
will go to eliminate this damaging document from the record.
Zillow’s hearsay arguments are equally inapplicable and unconvincing. In fact, for
discovery purposes, even an anonymous letter can be persuasive evidence to allow further
discovery. Wright v. Watkins & Shepard Trucking, Inc. 968 F. Supp.2d 1092, 1096 (D. Nev.
2013) (re-opening discovery based on anonymous letter supporting plaintiff’s claims); Plunk v.
Vill. Of Elwood, 2009 WL 1444436, at *3 (N.D. Ill. May 20, 2009) (allowing further discovery
based on receipt of anonymous letter). Zillow now claims it knows the identity of the
whistleblower. Thus, the plaintiffs’ use of the letter here is even more reliable than in cases
where Courts have relied on anonymous letters to warrant further discovery.
In any event, Zillow claims the letter was “authored by Zillow employee Chris Crocker,”
and received by plaintiffs “two business days before Mr. Crocker’s last day at Zillow.”
Declaration of Jack M. Lovejoy, Ex. 1 (Zillow Emergency Application for a Preservation Order
(submitted to Special Master Hilyer) at 6. Thus, Mr. Crocker—Zillow’s Vice President
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responsible for strategic partnerships, product development, and representing Zillow at industry
events—was a Zillow employee at the time he drafted the letter. Lovejoy Dec., Ex. 2, (Crocker
LinkedIn page). His statements, made with an executive’s knowledge, are Zillow admissions,
not hearsay. See Sea-Land Serv. Inc. v. Lozen Int’l, LLC, 285 F.3d 808, 821 (9th Cir. 2002) (a
statement made by a party employee concerning a matter within the scope of the agency or
employment is a party admission and not hearsay).
While Zillow blasts the letter as “unfounded” and challenges its authenticity, it at the
same time asserts that Mr. Crocker was one of few individuals with knowledge of some of the
information in the letter, and that it supposedly contained his “trademark sign off: ‘Good
hunting.’” Lovejoy Dec. Ex. 1 at 6-7. Even if authentication were an issue in this discovery
motion, which it is not, Zillow’s admissions have sufficiently deemed the letter (from a
“disgruntled former employee”2) to be authentic. Wash. ER 901(a) (the authentication
requirement “is satisfied by evidence sufficient to support a finding that the matter in question is
what its proponent claims.”)
B. Plaintiffs’ Supplemental Filing is Procedurally Proper and Should Not Be Stricken.
Plaintiffs filed the instant motion on April 6. Plaintiffs received the whistleblower letter
on Thursday afternoon, April 9, and submitted it to the Court on the morning of April 10.
Despite that record, Zillow argues that the supplemental submission is “untimely filed” (Br. at
6), which makes no sense. Plaintiffs submitted the letter as soon as they could have. Similarly,
Zillow complains that the whistleblower letter was not before the Special Master and therefore
should not be considered. Again, the whistleblower sent the letter after the Special Master
delivered his relevant orders. The letter could not have been submitted any sooner because it did
not exist yet.
Zillow also challenges the submission of any supplemental materials based on the Order
appointing the Special Master, but that Order specifically allows revision of the Special Master’s
2 Lovejoy Declaration Ex. 1 at 1.
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orders by the trial court judge based on “the records of the case.” The letter, once submitted, is a
record of the case. Zillow is simply wrong. Indeed, motions for reconsideration based on
newly-learned evidence are allowed with the court’s discretion. Martini v. Post, 178 Wn. App.
153, 162 (2013) (affirming reversal of summary judgment based on new evidence). While
Zillow would surely like to bury the whistleblower letter and its damaging admissions of
Zillow’s misdeeds, the Court may properly consider the letter.3 In fact, the local rules, which
Zillow erroneously contends “discourage” supplemental materials (Br. at 6), allow the Court to
impose terms and “otherwise” order to allow the supplemental material. Here, the fact that the
Plaintiffs received the letter after they filed the instant motions warrant the supplemental filing.
Zillow’s remaining case citations are far off base. Zillow cites Powell v. Rinne for the
proposition that the court may strike or disregard evidence that is untimely, improperly
structured, not based on personal knowledge, or is defective. (Br. at 6). But Powell concerns a
home foreclosure where the defendant submitted an appraisal moments before the hearing, which
was eight months after the notice of forfeiture, and years after continued missed payments and
failure to pay taxes. Powell v. Rinne, 71 Wash.App. 297, 300-301 (1993). The situation is not
even close to what occurred here. And Zillow’s reliance on Metcalf v. State (regarding a DMV
proceeding to revoke a driver’s license), and State v. Payne (regarding an appeal of a child
molestation conviction), are equally inapplicable. Neither is in the discovery context and both
concern evidence admitted in a proceeding where a final determination had been made. These
cases are far afield from this situation.
C. The Whistleblower Letter is Relevant to the Instant Motions.
The plaintiffs’ motions seek to revise the Special Master’s orders on third-party
subpoenas that severely limited the scope of the documents to be produced. The whistleblower
3 Zillow seeks the unnecessary and unusual alternate relief that the Court remand the matter back to the Special
Master. (Zillow Br. at 5). All that will do is further delay the proceedings, and further delay the production of
relevant evidence to Plaintiffs, which has been Zillow’s strategy all along. The Court has a full record and ability to
give whatever weight it so desires to the letter in ruling on the instant motions. Further delay is not required. Indeed
it would be reversible error to preclude discovery on claims and allegations directly at issue in the operative
complaint.
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letter brings to light what plaintiffs have feared all along—the defendants have not been
forthcoming with their production of relevant documents. Due to defendants continued
resistance to a fulsome production, the plaintiffs must be allowed to get complete discovery from
the third parties Trulia, Goldman Sachs, and J.P. Morgan. Illiana Surgery and Medical Center
LLC v. Hartford Fire Ins. Co., No. 2:07 cv 3, 2012 WL 776694, at *8 (N.D. Ind. March 7, 2012)
(given defendant’s reluctance to produce discovery and attempts to hide information, plaintiffs’
duplicative discovery requests by subpoena are warranted); Future Commc'ns, Inc. v. Hightower,
2002 WL 926769, at *4 (Ohio Ct. App. May 9, 2002) (finding substantial need for information
from third party by subpoena because information could not be obtained from defendants after
repeated attempts).
First, the letter casts doubt on Zillow’s testimony, as well as what it will produce,
regarding its acquisition of Trulia. Zillow and Samuelson have denied that Samuelson tipped
Zillow, and that Zillow acted on that tip. Sub. 527. Rascoff Decls. at SM100-101 and SM 462
(both denying that he received a tip from Samuelson and acted on that tip); SM266 (sealed)
(citing Rascoff and Samuelson testimony denying a tip regarding the Trulia acquisition). These
denials are in the record and were surely relied on by the Special Master when limiting the scope
of discovery allowed to proceed against the third parties.
But the whistleblower impugns anything Rascoff and Samuelson say. In previous
declarations, Samuelson has averred that he complied with the Court’s preliminary injunction.
Sub. 367, Samuelson Jan. 30, 2015 Decl. Re Opposition to Contempt, ¶¶ 7, 16. Rascoff did the
same. Sub. 309, Rascoff Jan. 13, 2015 Decl. Re Mot. to Increase Bond, ¶¶ 2, 3 and 7 (stating
Samuelson was “placed on leave,” cannot engage in any efforts to obtain direct feeds, and “has
been isolated, at home, and detached completely from work.”). But the letter contends that
Samuelson was “absolutely” working during the injunction, was “absolutely” careful so he
would not be caught, provides specifics of Samuelson’s meetings in private hotel rooms during
conferences with Mr. Beardsley who was hired (along with Samuelson) to obtain direct feeds
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from MLSs, and that Rascoff knew all about Samuelson’s efforts because he personally approves
the expense reports and “pays attention to the details.”
The letter contradicts what Samuelson and Rascoff have told this Court, and raises
serious doubts about defendants’ desire to comply with the requirements of the legal process. If
they failed to comply with the Court’s preliminary injunction order, why would they bother with
basic discovery obligations. The trial court has wide discretion to assess the credibility of
witnesses, and the whistleblower letter affects the witnesses’ credibility for purposes of this
discovery motion. State v. Tyler, 177 Wash. 2d 690, 715 (2013) (“Credibility judgments are left
to the trial court”). For those reasons, the whistleblower letter is directly relevant to the third
party discovery motions now before the Court.
Moreover, the letter contains damning admissions regarding defendant (and former Move
executive) Curt Beardsley that he stole complete copies of Move databases and has been using
those databases from a Google Docs account while working for Zillow. That information is
being hidden from plaintiffs. If it was known by Mr. Crocker, then it was surely known by
others at Zillow and likely by Beardsley’s cohort Samuelson, and maybe other Zillow
executives. Yet plaintiffs have received nothing in discovery regarding those shocking facts.
Zillow has not produced one document regarding Beardsley’s use of stolen Move databases, or
that Beardsley uses a Google Docs account to store the Move databases off-site. In fact, Zillow
loudly denied that discovery into non-Zillow gmail or storage accounts were necessary, and that
it had produced everything in its possession during plaintiffs’ motion to compel on this very
issue—which was granted. Zillow still never produced or disclosed the Google Docs account or
its contents despite the fact that it appears to have been well-known around Zillow. These
deficiencies cast serious doubts on the sufficiency of what Zillow, Samuelson, and Beardsley
have given their lawyers for production, or outright hidden from their lawyers. Presumably, the
third parties will not be so willing to engage in such devious behavior.
Similarly, the letter sheds light on what it calls “illegal” activities to steal Plaintiffs data,
scrape the realtor.com website, and a ListHub replacement product, which are directly relevant to
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plaintiffs’ claims against the defendants. But not one document has been provided regarding
those topics.
Lastly, the letter raises an issue regarding a “ListHub replacement product.” Plaintiffs
contend that Zillow’s acquisition of Retsly, which Samuelson withheld as an opportunity while a
Move executive so that he could save the opportunity for Zillow, was for ListHub replacement.
That issue is one of the topics in the subpoenas to the investment banks that was quashed by the
Special Master, and is now at issue in plaintiffs’ motion. See April 6, 2015, Mot. to Revise
(Investment Banks) at 5.
III. CONCLUSION
Because the whistleblower letter contains information relevant to the instant motions, and
the Court can decide what weight it decides to give the admissions in that letter with respect to
the pending motions, Zillow’s unusual request to strike evidence during this discovery motion
should be denied.
DATED April 16, 2015, at Seattle, Washington.
/s/Jack M. Lovejoy Jack M. Lovejoy, WSBA No. 36962 Lawrence R. Cock, WSBA No. 20326 Attorneys for Plaintiffs CABLE, LANGENBACH, KINERK & BAUER, LLP 1000 Second Avenue, Suite 3500 Seattle, Washington 98104-1048 (206) 292-8800 phone (206) 292-0494 facsimile [email protected] [email protected]
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Rick Stone (pro hac vice)
Brent Caslin, WSBA No. 36145
David Singer (pro hac vice)
Nick Saros (pro hac vice)
Attorneys for Plaintiffs
JENNER & BLOCK
633 West Fifth Street, Suite 3600
Los Angeles, CA 90071
(213) 239-5100 phone
(213) 539-5199 facsimile
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CERTIFICATE OF SERVICE
I hereby certify that on April 16, 2015, I electronically filed the foregoing with the Clerk
of the Court using the Court’s CM/ECF System which will send notification of such filing to the
following individuals registered to receive electronic notices by email transmission at the email
addresses provided thereto.
CM/ECF Participants:
David J. Burman Susan E. Foster Kathleen M. O’Sullivan Katherine G. Galipeau Counsel for Zillow, Inc.
Clemens H. Barnes Estera Gordon Counsel for Errol Samuelson
I further certify that I served a copy of the foregoing to the following non-registered
CM/ECF attorneys via electronic mail:
Judith B. Jennison Perkins Coie LLP [email protected] Counsel for Zillow, Inc.
Daniel Oates Miller Nash Graham & Dunn LLP [email protected] Counsel for Errol Samuelson
I declare under penalty of perjury under the laws of the State of Washington that the
foregoing is true and correct.
DATED at Seattle, Washington on April 16, 2015.
/s/ Janet Petersen
Janet Petersen, Legal Assistant
CABLE, LANGENBACH, KINERK & BAUER, LLP
1000 Second Avenue, Suite 3500
Seattle, Washington 98104-1048
(206) 292-8800 phone
(206) 292-0494 facsimile
