FILED

15 APR 16 AM 11:56

HONORABLE JOHN CHUN

Noted for Hearing:KING
AprilCOUNTY
20, 2015

SUPERIOR COURT CLERK

E-FILED
CASE NUMBER: 14-2-07669-0 SEA

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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
ZILLOWS MOTION TO STRIKE
PLAINTIFFS NOTICE OF
SUPPLEMENTAL SUPPORT AND
DECLARATION

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PLAINTIFFS OPPOSITION TO ZILLOWS MOTION TO STRIKE

Zillows Motion to Strike is noting more than a misguided attempt to prevent the Courts

consideration of damning admissions from a whistleblower who Zillow claims is very likely one

of its executivesits 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 juryrelying authentication, hearsay, and admissibility

objections. This is a discovery motion, and the strict rules of admissibility simply do not apply.

No matter, Zillows 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

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Zillow, and is not hearsay.

Zillow fails to cite even one reasonably applicable authority that a whistleblower letter

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from one of its own employees should be excluded during a discovery motion. Instead, it relies

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on cases regarding a home foreclosure, a horse breeding contest, a drivers license revocation

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appeal, and a criminal molestation appealnone related to discovery issues. Each case concerns

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an appeal or final determination of a matter, not what is the proper use of a whistleblower letter

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to warrant discovery. Those cases reveal the proverbial bottom of the barrel to which Zillow

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attempts to reach to distract attention from evidence catching it in acts of severe wrongdoing and

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hiding evidence from plaintiffs.

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Zillow also trumpets the supposed inaccuracy of the whistleblower letterfive times in

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its motion to strike, six times in a one-page declaration to support the motion to strike, and eight

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times in its submission to the Special Master this weekcalling the letter false, inaccurate,

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misleading, unfounded, or any number adjectives to tarnish the letter. Yet Zillow has not, and

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will not, say what specifically is incorrect. In fact, it is quite ironic that Zillow claims the letter

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is so inaccurate to not be trusted, but then alleges it contains important Zillow trade secrets,

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which by definition must be true. Zillows motion to strike, the submission to the special master,

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and Zillows motion to seal portions of the letter and its corresponding reply brief, are all silent

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about what is inaccurate. According to Zillow, the whistleblower letter is from a knowledgeable
PLAINTIFFS OPPOSITION TO ZILLOWS MOTION TO STRIKE - 1

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, Zillows claim that the whistleblower letter contains trade secrets is wrong

as a matter of law because a defendants 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 Zillows unlawful conduct will be addressed in a separate

motion to this Court. But, for purposes of Zillows 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).

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Lastly, the letter is relevant to this discovery dispute. Defendants have destroyed

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evidence, failed to produce a substantial amount of documents, which has resulted in numerous

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motions to compel that defendants fight tooth and nail with emphatic declarations of innocence

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and alleged compliance with their discovery obligations. The whistleblower letter shines a bright

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light on what plaintiffs have suspected all along; defendants have been withholding large

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categories of documents and simply cannot be trusted to produce relevant documents, which is

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why the third party subpoenas are critical for plaintiffs case.
I.

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A.

STATEMENT OF FACTS

Defendants Have Been Caught Destroying Evidence Before.

Plaintiffs National Association of Realtors and Move, Inc. operate the realtor.com real

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estate website. Plaintiffs are suing their biggest competitor, Zillow, Inc. and two former Move

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executives that Zillow poached from Move in 2014 for misappropriation of trade secrets, tortious

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interference, and breaches of fiduciary duty. On June 30, 2014, the Court issued a preliminary

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injunction against defendants finding, among other things, that defendant Errol Samuelson

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misappropriated plaintiffs trade secrets. The Court also drew negative inferences against

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defendants because Samuelson took steps to destroy evidence from his computers. On February

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PLAINTIFFS OPPOSITION TO ZILLOWS MOTION TO STRIKE - 2

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.

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Last Thursday, April 9, the plaintiffs received an anonymous whistleblower letter.

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A Whistleblower Has Revealed that Defendants Continue to Hide Evidence and

Misappropriate Trade Secrets.

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 couldnt
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 Moves 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. Beardsleys use of the stolen Move databases was not hidden, but many
other employees have witnessed him using this database to benefit Zillows efforts. Id.

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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.

Samuelsons 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 Samuelsons failure to comply with the Courts

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

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by actively working on matters prohibited under the injunction because he has to personally

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approve large amounts in the expense reports. Id.

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The extensive detail in the whistleblower letter, with employee names, details of the

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misdeeds, identification of the stolen databases, dates of particular events, and the recitation of

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facts only an employee would know, are more than sufficient detail to give the letter

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credibilitycertainly enough to reject Zillows arguments otherwise.

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C.

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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
Zillows acquisition of Trulia, which plaintiffs contend was instigated by a tip from Samuelson
(while a Move executive) to Zillows CEO that a Move/Trulia merger was forthcoming.
The whistleblower letter discredits Zillow and Samuelsons blanket denials of
responsibility regarding Samuelsons tip to Zillow, and Zillows 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

PLAINTIFFS OPPOSITION TO ZILLOWS MOTION TO STRIKE - 4

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 Rascoffs and Samuelsons declarations,

including the outright denials provided to the Special Master that led to the Special Masters

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 storageeven though plaintiffs moved to compel

production of information stored on gmail and non-Zillow cloud storage locations, which was

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met with defiant denials that any documents were being withheld. Plaintiffs have received no

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documents regarding Samuelson meeting with MLSs in private hotel rooms in violation of the

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injunction, which is described in detail in the whistleblower letter. The end result is that

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plaintiffs cannot rely on defendants to satisfy their obligations to produce the necessary and

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required discovery, which is why the third party discovery that is the subject of these Motions is

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so criticalthey may be the only reliable source of documents.

Because the whistleblower letter calls into serious question defendants denials and their

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ability to provide fulsome discovery, it is appropriate evidence for this Court to consider when

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deciding whether the Special Master orders should be revised.

II.

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A.

ARGUMENT

Zillows Complaints Regarding the Whistleblower Letters Admissibility are Both

Irrelevant and Incorrect.
Zillows 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 argumentleaving out a key differentiating segment: The certifications

considered by the trial court were not signed under penalty of perjury nor were they sworn

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statements . [W]e do not consider such certifications to be competent proof . (Br. at 6),

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but Zillow withholds the key finish to the quote not competent proof in a summary judgment

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proceeding. 58 Wash. App. 404, 408 fn. 3. This is not a summary judgment proceeding, or a

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trial. It is discovery. The standards are different, and Zillow surely understands the distinction.

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Zillows intentionally misleading recitation of an already strained case highlights the lengths it

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will go to eliminate this damaging document from the record.

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Zillows hearsay arguments are equally inapplicable and unconvincing. In fact, for

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discovery purposes, even an anonymous letter can be persuasive evidence to allow further

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discovery. Wright v. Watkins & Shepard Trucking, Inc. 968 F. Supp.2d 1092, 1096 (D. Nev.

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2013) (re-opening discovery based on anonymous letter supporting plaintiffs claims); Plunk v.

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Vill. Of Elwood, 2009 WL 1444436, at *3 (N.D. Ill. May 20, 2009) (allowing further discovery

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based on receipt of anonymous letter). Zillow now claims it knows the identity of the

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whistleblower. Thus, the plaintiffs use of the letter here is even more reliable than in cases

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where Courts have relied on anonymous letters to warrant further discovery.

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In any event, Zillow claims the letter was authored by Zillow employee Chris Crocker,

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and received by plaintiffs two business days before Mr. Crockers last day at Zillow.

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Declaration of Jack M. Lovejoy, Ex. 1 (Zillow Emergency Application for a Preservation Order

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(submitted to Special Master Hilyer) at 6. Thus, Mr. CrockerZillows Vice President

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responsible for strategic partnerships, product development, and representing Zillow at industry

eventswas a Zillow employee at the time he drafted the letter. Lovejoy Dec., Ex. 2, (Crocker

LinkedIn page). His statements, made with an executives knowledge, are Zillow admissions,

not hearsay. See Sea-Land Serv. Inc. v. Lozen Intl, 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

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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

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hunting. Lovejoy Dec. Ex. 1 at 6-7. Even if authentication were an issue in this discovery

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motion, which it is not, Zillows admissions have sufficiently deemed the letter (from a

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disgruntled former employee2) to be authentic. Wash. ER 901(a) (the authentication

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requirement is satisfied by evidence sufficient to support a finding that the matter in question is

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what its proponent claims.)

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B.

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Plaintiffs Supplemental Filing is Procedurally Proper and Should Not Be Stricken.

Plaintiffs filed the instant motion on April 6. Plaintiffs received the whistleblower letter

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on Thursday afternoon, April 9, and submitted it to the Court on the morning of April 10.

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Despite that record, Zillow argues that the supplemental submission is untimely filed (Br. at

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6), which makes no sense. Plaintiffs submitted the letter as soon as they could have. Similarly,

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Zillow complains that the whistleblower letter was not before the Special Master and therefore

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should not be considered. Again, the whistleblower sent the letter after the Special Master

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delivered his relevant orders. The letter could not have been submitted any sooner because it did

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not exist yet.

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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 Masters

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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 courts 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

Zillows 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.
Zillows remaining case citations are far off base. Zillow cites Powell v. Rinne for the

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proposition that the court may strike or disregard evidence that is untimely, improperly

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structured, not based on personal knowledge, or is defective. (Br. at 6). But Powell concerns a

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home foreclosure where the defendant submitted an appraisal moments before the hearing, which

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was eight months after the notice of forfeiture, and years after continued missed payments and

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failure to pay taxes. Powell v. Rinne, 71 Wash.App. 297, 300-301 (1993). The situation is not

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even close to what occurred here. And Zillows reliance on Metcalf v. State (regarding a DMV

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proceeding to revoke a drivers license), and State v. Payne (regarding an appeal of a child

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molestation conviction), are equally inapplicable. Neither is in the discovery context and both

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concern evidence admitted in a proceeding where a final determination had been made. These

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cases are far afield from this situation.

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C.

The Whistleblower Letter is Relevant to the Instant Motions.

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The plaintiffs motions seek to revise the Special Masters orders on third-party

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subpoenas that severely limited the scope of the documents to be produced. The whistleblower

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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 Zillows 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 alongthe 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 defendants 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

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repeated attempts).
First, the letter casts doubt on Zillows testimony, as well as what it will produce,

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regarding its acquisition of Trulia. Zillow and Samuelson have denied that Samuelson tipped

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Zillow, and that Zillow acted on that tip. Sub. 527. Rascoff Decls. at SM100-101 and SM 462

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(both denying that he received a tip from Samuelson and acted on that tip); SM266 (sealed)

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(citing Rascoff and Samuelson testimony denying a tip regarding the Trulia acquisition). These

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denials are in the record and were surely relied on by the Special Master when limiting the scope

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of discovery allowed to proceed against the third parties.

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But the whistleblower impugns anything Rascoff and Samuelson say. In previous

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declarations, Samuelson has averred that he complied with the Courts preliminary injunction.

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Sub. 367, Samuelson Jan. 30, 2015 Decl. Re Opposition to Contempt, 7, 16. Rascoff did the

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same. Sub. 309, Rascoff Jan. 13, 2015 Decl. Re Mot. to Increase Bond, 2, 3 and 7 (stating

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Samuelson was placed on leave, cannot engage in any efforts to obtain direct feeds, and has

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been isolated, at home, and detached completely from work.). But the letter contends that

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Samuelson was absolutely working during the injunction, was absolutely careful so he

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would not be caught, provides specifics of Samuelsons meetings in private hotel rooms during

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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 Samuelsons 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 Courts 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

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party discovery motions now before the Court.

Moreover, the letter contains damning admissions regarding defendant (and former Move

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executive) Curt Beardsley that he stole complete copies of Move databases and has been using

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those databases from a Google Docs account while working for Zillow. That information is

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being hidden from plaintiffs. If it was known by Mr. Crocker, then it was surely known by

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others at Zillow and likely by Beardsleys cohort Samuelson, and maybe other Zillow

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executives. Yet plaintiffs have received nothing in discovery regarding those shocking facts.

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Zillow has not produced one document regarding Beardsleys use of stolen Move databases, or

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that Beardsley uses a Google Docs account to store the Move databases off-site. In fact, Zillow

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loudly denied that discovery into non-Zillow gmail or storage accounts were necessary, and that

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it had produced everything in its possession during plaintiffs motion to compel on this very

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issuewhich was granted. Zillow still never produced or disclosed the Google Docs account or

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its contents despite the fact that it appears to have been well-known around Zillow. These

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deficiencies cast serious doubts on the sufficiency of what Zillow, Samuelson, and Beardsley

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have given their lawyers for production, or outright hidden from their lawyers. Presumably, the

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third parties will not be so willing to engage in such devious behavior.

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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 Zillows 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.

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CONCLUSION

Because the whistleblower letter contains information relevant to the instant motions, and

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the Court can decide what weight it decides to give the admissions in that letter with respect to

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the pending motions, Zillows unusual request to strike evidence during this discovery motion

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should be denied.

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DATED April 16, 2015, at Seattle, Washington.

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/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
lrc@cablelang.com
jlovejoy@cablelang.com

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PLAINTIFFS OPPOSITION TO ZILLOWS MOTION TO STRIKE - 11

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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
rstone@jenner.com
bcaslin@jenner.com
dsinger@jenner.com
nsaros@jenner.com

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PLAINTIFFS OPPOSITION TO ZILLOWS MOTION TO STRIKE - 12

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CERTIFICATE OF SERVICE
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I hereby certify that on April 16, 2015, I electronically filed the foregoing with the Clerk
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of the Court using the Courts CM/ECF System which will send notification of such filing to the

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following individuals registered to receive electronic notices by email transmission at the email
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addresses provided thereto.
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CM/ECF Participants:
David J. Burman
Susan E. Foster
Kathleen M. OSullivan
Katherine G. Galipeau
Counsel for Zillow, Inc.

Clemens H. Barnes
Estera Gordon
Counsel for Errol Samuelson

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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
jjennison@perkinscoie.com
Counsel for Zillow, Inc.

Daniel Oates
Miller Nash Graham & Dunn LLP
dan.oates@millernash.com
Counsel for Errol Samuelson

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I declare under penalty of perjury under the laws of the State of Washington that the
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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
jpetersen@cablelang.com

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PLAINTIFFS OPPOSITION TO ZILLOWS MOTION TO STRIKE - 13