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ZILLOW’S REPLY ISO MOTION TO SEAL SINGER DECLARATION
56920-0025/LEGAL125655129.1
Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000
Fax: 206.359.9000
THE HONORABLE JOHN CHUN
Noted For Consideration: April 14, 2015 [MOTION TO SHORTEN TIME GRANTED]
SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY
MOVE, INC., a Delaware corporation, REALSELECT, INC., a Delaware corporation, TOP PRODUCERS 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,
v.
ZILLOW, INC., a Washington corporation, ERROL SAMUELSON, an individual, CURT BEARDSLEY, an individual, and DOES 1-20,
Defendants.
No. 14-2-07669-0 SEA
ZILLOW’S REPLY IN SUPPORT OF ITS MOTION TO SEAL THE DECLARATION OF DAVID SINGER FILED BY PLAINTIFFS ON APRIL 10, 2015
FILED15 APR 14 AM 9:00
KING COUNTYSUPERIOR COURT CLERK
E-FILEDCASE NUMBER: 14-2-07669-0 SEA
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ZILLOW’S REPLY ISO MOTION TO SEAL SINGER DECLARATION - 1
56920-0025/LEGAL125655129.1
Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000
Fax: 206.359.9000
Zillow submits this brief Reply in support of its Motion to Seal the Singer Declaration
to highlight for the Court that Plaintiffs’ Opposition is wholly refuted by the Second
Amended Protective Order (“Protective Order), a copy of which accompanies this filing.
(Docket No. 328A.) The Protective Order applies to any information or document which a
party designates as “CONFIDENTIAL,” “ATTORNEYS’ EYES ONLY,” or “OUTSIDE
COUNSEL’S EYES ONLY.” (See id. ¶ 1.) The Protective Order also provides that in the
event that a party files a document without designating it under one of the confidentiality tags
listed above, “any other party may, within 30 days of the documents being produced or filed,
designate them as Confidential Information.” (Id. ¶ 4) (emphasis added).
Once a party has notified the other party of such designation, the Protective Order
requires that “such information shall be kept confidential and shall not be given, shown,
made available, discussed, or otherwise communicated in any manner (‘disclosed’), either
directly or indirectly, to any person not authorized to receive the information.” (Id. ¶ 5.)
Before disclosing such information to any party not otherwise specified in the Protective
Order, the producing party must provide ten-days notice to opposing counsel. Id. ¶ 13.
The Protective Order even provides for the scenario where a document is advertently
produced without a confidentiality designation. In such a case, any party may ask that the
information be treated confidentially, and the producing party must do so, and even disclose
“the extent the receiving party has already disclosed this information” and disclose “the
specific recipients of such information.” (Id. ¶ 14.) Further, in the event of an inadvertent
disclosure, “the person responsible for the disclosure must immediately bring all pertinent
facts relating to such disclosure to the attention of counsel.” (Id. ¶ 15.) The Protective Order
thus places an affirmative obligation on a party seeking to file any document containing
confidential information to first “move to obtain the Court’s permission to file that document
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ZILLOW’S REPLY ISO MOTION TO SEAL SINGER DECLARATION – 2
56920-0025/LEGAL125655129.1
Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000
Fax: 206.359.9000
under seal.” (Id. ¶ 17.) Finally, to the extent the parties disagree about whether a document
is confidential, the parties are obligated to try to resolve the dispute informally before asking
the Court to intervene. (Id. ¶ 18.)
Given Plaintiffs’ knowledge of the industry, Plaintiffs cannot reasonably claim that
they did not know the Letter contained confidential information. After all, the anonymous
author advised the reader that the material in it involved “secret” Zillow projects, and even
instructed the reader to “shred” the Letter immediately after reading it. Few warnings could
have been more explicit. But even if Plaintiffs claim to have overlooked the obvious
characteristics that made the Letter confidential, Zillow placed Plaintiffs on notice about the
Letter’s confidentiality immediately. (See Foster Decl. Ex. A (repeatedly advising that the
Letter contains “confidential” and “proprietary information”).) Zillow had the absolute right
under the protective order to designate the confidential portions of the Letter as such under
the explicit terms of the protective order once it was filed. (Id. ¶ 4.)
After making that designation, Zillow also immediately asked to stipulate to sealing
the Letter, as Plaintiffs were required to do under the Second Amended Protective Order
once a portion of the Letter was designated confidential. (Id. ¶ 5.) Pursuant to the plain
language of Paragraph 5 of the Protective Order, Plaintiffs were prohibited from using A
“publish now, ask questions later” approach to the Letter, and certainly were forbidden from
sending the Letter to the media. Under the protective order, Plaintiffs do not have the option
of refusing to stipulate to the letter being sealed. They are in direct violation of the protective
order on multiple counts, which will be addressed at a later time.
Notably, Zillow outlined the reasons why this information should not have been
disclosed in Zillow’s Emergency Motion for Preservation, which the Special Master granted
yesterday.
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ZILLOW’S REPLY ISO MOTION TO SEAL SINGER DECLARATION – 3
56920-0025/LEGAL125655129.1
Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000
Fax: 206.359.9000
This is a trade secrets case involving the two largest portals in the real estate industry.
The parties have exchanged many thousands of documents detailing their very sensitive
business operations, strategies, and plans. Much of this information in highly confidential—
which is why the parties have a detailed multi-layered protective order in the first place.
Hundreds of documents and briefs have been filed under seal already in this matter. The
Plaintiffs have under the protective order an avenue for unsealing any portion of record that
has been designated by a party as confidential. (Id. ¶ 18.) What they cannot do, is what they
did here, file and disseminate the material designated confidential first.
Plaintiffs are in serious breach of the Second Amended Protective, the result of which
is yet to be determined. But first and foremost the Declaration of Singer must be sealed, and
a redacted version filed. The Protective Order requires that. Plaintiffs can then properly
challenge the confidentiality designation before Judge Chun. Judge Chun is intimately
familiar with the facts of this case and well-equipped to address any challenge to
confidentiality that Plaintiffs opt to make. The Court will also see Plaintiffs’ ruse in filing
such a letter, knowing the Court was on leave, purportedly in support of some motions
addressing the scope of third-party subpoenas as exactly that, a ruse designed to do nothing
more than smear Zillow to the Court and to the public.
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ZILLOW’S REPLY ISO MOTION TO SEAL SINGER DECLARATION – 4
56920-0025/LEGAL125655129.1
Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000
Fax: 206.359.9000
DATED: April 14, 2015
/s/Susan E. Foster Susan E. Foster, WSBA No. 18030 [email protected] Kathleen M. O’Sullivan, WSBA No. 27850 [email protected] David J. Burman, WSBA No. 10611 [email protected] Judith B. Jennison, WSBA No. 36463 [email protected] Mary P. Gaston, WSBA No. 27258 [email protected] Katherine G. Galipeau, WSBA No. 40812 [email protected] Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000
Attorneys for Defendant Zillow, Inc.
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CERTIFICATE OF SERVICE – 1
56920-0025/LEGAL125655129.1
Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000
Fax: 206.359.9000
CERTIFICATE OF SERVICE On April 14, 2015, I caused to be served upon counsel of record, at the address stated
below, via the method of service indicated, a true and correct copy of the following document: ZILLOW’S REPLY IN SUPPORT OF MOTION TO SEAL THE DECLARATION OF DAVID SINGER FILED BY PLAINTIFFS ON APRIL 10, 2015
Jack M. Lovejoy, WSBA No. 36962 Lawrence R. Cock, WSBA No. 20326 Cable, Langenbach, Kinerk & Bauer, LLP Suite 3500, 1000 Second Avenue Building Seattle, WA 98104-1048 Telephone: (206) 292-8800 Facsimile: (206) 292-0494 [email protected] [email protected] [email protected] [email protected]
Via Hand Delivery Via U.S. Mail, 1st Class, Postage
Prepaid Via Overnight Delivery Via Facsimile Via E-filing Via E-mail
Clemens H. Barnes, Esq., WSBA No. 4905 Estera Gordon, WSBA No. 12655 K. Michael Fandel, WSBA No. 16281 Miller Nash Graham & Dunn LLP Pier 70 2801 Alaskan Way, Suite 300 Seattle, WA 98121-1128 Telephone: (206) 624-8300 Facsimile: (206) 340-9599 [email protected] [email protected] [email protected] [email protected] [email protected]
Via Hand Delivery Via U.S. Mail, 1st Class, Postage
Prepaid Via Overnight Delivery Via Facsimile Via E-filing Via E-mail
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CERTIFICATE OF SERVICE – 2
56920-0025/LEGAL125655129.1
Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000
Fax: 206.359.9000
Brent Caslin, WSBA No. 36145 Richard Lee Stone , (Pro Hac Vice) Nick G. Saros, (Pro Hac Vice) Jennifer Wagman Njathi, (Pro Hac Vice) Ethan A. Glickstein, (Pro Hac Vice) Jeffrey A. Atteberry, (Pro Hac Vice) Jenner & Block LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071 Telephone: (213) 239-5150 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]
Via Hand Delivery Via U.S. Mail, 1st Class, Postage
Prepaid Via Overnight Delivery Via Facsimile Via E-filing Via E-mail
James P. Savitt, WSBA No. 16847 Duffy Graham, WSBA No. 33103 Ryan Solomon, WSBA No. 43630 Savitt Bruce & Willey LLP Joshua Green Building 1425 Fourth Avenue, Suite 800 Seattle, WA 98101-2272 [email protected] [email protected] [email protected] [email protected]
Via Hand Delivery Via U.S. Mail, 1st Class, Postage
Prepaid Via Overnight Delivery Via Facsimile Via E-filing Via E-mail
I certify under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.
DATED this 14th day of April, 2015.
s/ Nancy Lygren Nancy Lygren, Legal Secretary
