DECLARATIONJLOVEJOY_040715

DECLARATION OF JACK M. LOVEJOY IN SUPPORT OF

MOTION TO REVISE SPECIAL MASTER ORDER RE GOLDMAN

SACHS AND J.P. MORGAN SUBPOENAS

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24 CABLE, LANGENBACH,

KINERK & BAUER, LLP 1000 SECOND AVENUE, SUITE 3500

SEATTLE, WASHINGTON 98104-1048

(206) 292-8800

THE HONORABLE JOHN CHUN

Noted For Consideration: April 20, 2015

ORAL ARGUMENT REQUESTED

AT A TIME SET BY THECOURT

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

CURT BEARDSLEY, an individual,

Defendants.

Case No. 14-2-07669-0 SEA

DECLARATION OF JACK M. LOVEJOY IN SUPPORT OF MOTION TO REVISE THE SPECIAL MASTERS ORDER RE SUBPOENAS TO GOLDMAN SACHS AND J.P. MORGAN

EXHIBITS FILED UNDER SEAL PER

COURT ORDER DATED _______

FILED15 APR 07 AM 9:00

KING COUNTYSUPERIOR COURT CLERK

E-FILEDCASE NUMBER: 14-2-07669-0 SEA



SACHS AND J.P. MORGAN SUBPOENAS - 1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23




(206) 292-8800

Jack M. Lovejoy declares:

1. I am one of the attorneys for plaintiffs in this action. I am over the age of eighteen

and competent to testify to the facts stated herein on personal knowledge.

2. In accord with Section 10 of this Courts October 10, 2014 Order Appointing a

Special Master for Discovery, this declaration attaches true and correct copies of the

following documents submitted to the Special Master or entered by the Special

Master in connection with the Special Master Order that Plaintiffs are seeking to

revise:

SM 735-736 Zillows February 25, 2015, Note for Motion;

SM 737-753 Zillows February 25, 2015, Motion for Protective Order re Goldman

Sachs and J.P. Morgan Subpoenas (submitted under seal);

SM 754-815 February 25, 2015, Declaration of Kathleen OSullivan. The declaration

and Exhibit G are submitted under seal (SM 754-758, 813-815);

SM 816-819 February 25, 2015, Declaration of Brad Owens (submitted under seal);

SM 820-823 Zillows Proposed Order;

SM 824-836 Plaintiffs March 3, 2015, Opposition to Motion for Protective Order

(submitted under seal);

SM 837-881 March 3, 2015, Declaration of Jack M. Lovejoy. Exhibits 1-3 are

submitted under seal (SM 840-873);

SM 882-883 Plaintiffs Proposed Order;

SM 884-893 Zillows Mach 4, 2015, Reply (submitted under seal);

SM 894-962 March 4, 2015, Supplemental Declaration of Kathleen OSullivan;

SM 963-997 Zillows March 4, 2015, submission of authorities;

SM 998-1001 The Special Masters March 31, 2015, Order Granting in Part and

Denying in Part Defendant Zillow, Inc.s Motion for Protective Order (J.P.

Morgan & Goldman Sachs Subpoenas);



SACHS AND J.P. MORGAN SUBPOENAS - 2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23




(206) 292-8800

SM 1002-1023 Excerpts of the transcript of the March 11, 2015, hearing before the

Special Master (submitted under seal).

I declare under penalty of perjury under the laws of the State of Washington that the

foregoing is true.

/s/Jack M. Lovejoy

Jack M. Lovejoy

IDENTIFICATION OF TRADE SECRET CLAIMS IN ... , 5 Nw. J. Tech. & ...

80

8 1

82

83

84

85

what particular combination of components it has in mind, how these components are combined, and how they operate

in a unique combination. This matter cannot be left to pure speculation and conjec ture."); Package Mach. Co. v. Hayssen

Mfg. Co., 164 F. Supp. 904, 907, 9 10 (E.D. Wis. 1958) (rejecting plaintiffs effort to avoid identifying alleged secrets by

asserting "a hundred different modifications" of technology at issue; di smissing case for failure to identify on motion

to compel compliance with pre-trial order).

See Package Mach. Co., 164 F. Supp. at 9 10.

See Mentor Graphics Corp. v. Verp lex Sys., Inc. , No. 5:00-CV-20562, (N.D. Cal. Mar. 15, 2(0 1) (order granting

defendants' motion for protective order).

See, e.g. , Anderson, sllpra note 30, at 11 .23 (noting that with categories like customer lists, "there is no middle ground

between identifying a customer and not making such an identification").

One court has stated that "a computer program generally ' includes source code, which is the deve loper's tool in

creating software, objec t code, and other technical information, including program architecture, design definitions or

specifications, flow diagrams and flow chaIts, data structures, data compilations, formulae and algorithms embodied

and used in the software.'" ECT Int 'l, Inc. v. Zwerlein, 597 N.W.2d 479, 483 (Wis. Ct. App. 1999) (affirming

summary judgment in pmt due to failure to identify trade secrets adequate ly) (quoting Roben C. Scheinfeld & Gary

M. Butter, Using Trade Secret Law to Protect Compllter Software, 17 RUTGERS COMPUTER & TECH. L.l . 38 1,

383 (199 1) (footnotes omitted)). We find thi s characterization confusing. Source code is the human readable version

of the instructions the computer will can)' out. A computer program called a "compiler" transforms source code into

executable objec t code that the computer may read direc tly. The "other technical information" referenced in the article

could be characterized as either specific formulas embodied by and readable within a few lines of source code or overall

high-level plans for what the program should accomplish and how it wi ll accomplish it through certain algorithms

and structure.

Trade secret cases abou t executable software are rare because the final , executable software product is often the version

so ld to the public, while the underl ying source code remains secret. Such a case could arise if, for example, the plaintiff

maintains executable object code as a tool used secretly for internal purposes rather than selling it and then accuses

the defendant of taking it. Identify ing the functionality provided by object code seems necessal)' to establi sh that the

object code has economic va lue and differs from other, publicly-available executable files. After all , object code is not

source code, and misappropriating an object code file wou ld not be misappropriation of the source code used to make

that file . A plaintiff could not accurately identify alleged secrets in object code by describing the source code used to

create it. Indeed, in a different trade sec ret litigation context -- that of reasonable measures used to protect the alleged

secret, rather than identification of the alleged secret -- COUlts have consistentl y held that there is a valid di stinction

between object code and source code, and that revealing object code does not di sclose alleged secrets in source code.

See generallY Fabkom, Inc. v. R.W. Smith & Assoc., Inc. , No. 95 Civ. 4552 (MBM), 1996 WL 53 1873. at *7 (S.D.N.Y.

Sept. 19, 1996) (same; software "distributed to its customers only in it s executable objec t code form .... This means that

any person attempted to reveal the programming instructions would see an incomprehensible sequence of numbers .... ");

ISC-Bunker Ramo Corp. v. Altech, Inc., 765 F. Supp. 13 10, 1323 (N.D. Ill. 1990) (plaintiffs "computer programs

are on ly di stributed in object code, which is not intelligible to human beings."); Q-Co Indus., Inc. v. Hoffman, 625

F. Supp. 608, 6 18 (S.D.N.Y. 1985) ("Only the object code is publicly avai lable; this is the version of the program

that is intended to be read by the computer and cannot be understood even by expert programmers.") (citing Glenn 1.

MacGrady, Protection of Compllter Software --- an Update alld Practical Synthesis , 20 HOUS. L. REV. 1033, 1063

( 1983) ("Secrecy wi ll not be destroyed by the wide di stribution of computer programs if they are distributed in object

form only.")). Barr-Mullin, Inc . v. Browning, 424 S.E.2d 226, 229 (N.C. Ct. App. 1993) (plaintiff used reasonable

measures to protect source code, and so ld on ly object code software made from that source code to the public). Thus,

identification of alleged secrets provided by object code differs from identifying trade secret claims in source code,

and the two should not be confused.

See Compuware Corp. v. IBM, No. 02-CV-70906, 2003 WL 232 12863, at *6-7 (E.D. Mich. Dec. 19,2003) (rejecting

motion for prel iminaI), injunction where plaintiff claimed secrets in "unique combination of functions and capabilities"

in celtain software, "customer preferences," product documentation, and source code; court denied preliminaI),

WesllawNexl 2015 Thomson Reuters. No claim to original U.S. Government Works. 29 SM0995


86

87

88

89

90

91

92

93

94

95

96

97

98

99

injunction, noting: "As for it s source code, Compuware has for whatever reason failed to identify any spec ific lines

of source code that have been taken by IBM.").

Databases can contain specific content and combinations of content in fields. A plaintiff may believe that such data

const itutes trade secrets and, if so, that information should be identified.

In the case of computer hardware, "patts" cou ld include source code -- either firmware or software -- integrated with

physical hardware.

See il/fra Section III (E).

See POOLEY, supra note 4, at 11 .02 ("[T]he nature of a secret process, with its underlying platform of accumulated

negative data, is such that it cannot practically be restated in exhaustive detail.").

See, e.g. , CAL. CIY. PROC. CODE 430. 10(f) (permitting a demUlTer to an "ambiguous and unintelligible" pleading);

FED. R. CIV. P. 12(e) (permitting a motion for a more definite statement).

See N.D. Cal. Patent. L.R. 3 1; N.D. Ga. Patent L.R. 4. 1; W.D. Penn. LPR. 3.2; E.D. Tex. P.R. 3-1.

See Integrated Circuit Sys., Inc. v. Realtek Semiconductor Co., 308 F. Supp. 2d 1106, 1107 (N.D. Cal. 2004).

See Norbrook Labs .. Ltd. v. G.C. Hanford Mfg. Co .. No. 5:03CYI65(HGH/GLS). 2003 WL 19562 14. at *2-4

(N.D.N.Y. Apr. 24. 2003).

See Synapsis, L.L.C v. Evergreen Data Sys. , Inc., No. C 05- 1524 JF, 2006 WL 20535 12, at *2 (N.D. Cal. July 2 1,

2(06) (granting motion to compel where plaintiff refused to respond).

See Multimedia Cablevision, Inc. v. Cal. Sec. Co-op, Inc., No. 94- 1130-MLB, 1996 WL447815, at * 1-2 (D. Kan. July

30, 1996) (Defendant 's interrogatory which only asked plaintiff to identify the docllmenls which comprised the basis

for the trade secret claim; nonetheless, court granted motion to compel a better answer regarding the documents in

questi on and issued sanctions against plaintiff.).

See Cacique, Inc. v. Y&Y Supremo Foods, Inc. , No. 03 C 4230.2004 WL 2222270, at *5 (N.D. III. Sept. 30. 2004)

(denying motion to strike pOl1ions of declaration submitted by plaintiffin opposi ti on to motion for summary judgment;

although defendant argued that declaration added additional trade secret claims not previously identified , court noted

that defendant failed to "ask any follow-up questions" at deposition regarding area in which alleged secrets were

claimed).

See Neothermia Corp. v. Rubicor Med. , Inc., 345 F. Supp. 2d 1042, 1045 (N.D. Cal. 2004). This rule is intended to

prevent the "shifting sands" problem in intellectual property cases where a plaintiff changes it s claims around as the

case proceeds. See id. (noting the problem to be "a concern which applies with equal force to trade secret allegations.").

See also Vacco Indus., Inc. v. Van Den Berg, 5 Cal. App. 4th 34, 51 n.16 (Cal. Ct. App. 1992) (prior case under

California law finding " no elTOr" in fact that plaintiff amended statement identification statement "several times," but

providing no information as to whether trial cOUl1 oversaw such amendments).

See Pixion, Inc. v. Placeware, Inc., 421 F. Supp. 2d 1233, 1242 (N.D. Cal. 2(05) (although court's incorrect view of

what level of specificity is required under Cal. Civ. Proc. 20 19.2 10 is clear under the subsequent California state coul1

ruling in Advan.ced Modular Spllttering, sllpra note 40, court refused to allow plaintiff to avoid summaty judgment

motion by going beyond identification previously stated to be complete by claiming new detail s of functionality as

trade secrets; coul1 instead ruled on claims as previously asserted in identifi cation statement).

See Am. Airlines, Inc. v. KLM Royal Dutch Airlines, Inc. , 114 F.3d 108 (8th Cir. 1997). In American. Airlines,

the Eighth Circuit affirmed the di strict court's summaty judgment ruling against the trade secret plaintiff, American

Airlines. The plaintiffs expert testified that its combination trade secret consisted of five elements and implementation

algorithms.ld. at 110. After di scovering that the defendant had not acquired all five elements, the plaintiff attempted,

through expel1 testimony, to claim that the other four elements constituted a valid combination trade secret. Id. The

court, rejec ted this "sham" definition of the combinati on trade secret and upheld the district court's summary judgment



100

101

102

based on the original definition of the combination trade secret that included all five elements of the plaintiffs system.

[d. at 111 - 12. The court concluded "After carefu l examination of American's expert's testimony we agree with the

di strict court's conclusion that American attempted to manufacture a material issue of fact just to evade the impact of

summary judgment by inexplicably changing its testimony. Thus, the di strict cOUl1 correctly di sregarded the subsequent

manufactured contradictory testimony of American and concluded that no factual issue for trial existed for the reason

that KLM never received any trade sec ret of American's .").

See Hickory Specialties, Inc. v. Forest Flavors Int'l, Inc. , 12 F. Supp. 2d 760, 770 (M.D. Tenn. 1998) (prohibiting

plaintiff from submitting 36 new trade secret claims after discovery closed; prior intetTOgatory response had identified

3 1 oth er alleged secrets); Rockwell Graphic Sys., Inc. v. Dev Indus., Inc., No. 84 C 6740, 1992 WL 16224 1, at *3-5

(N.D. Ill. July 12, 1992) (excluding all eged ly secret drawings rai sed after di scovety closed).

See Compuware Corp. v. Hea lth Care Servo Corp. , No. 01 C 0873, 2002 WL 4857 10, at *7 (N.D. Ill. Apr. 1,2002)

(the couti issued sanctions where defendant won motion to compel regarding intetTOgatOlY requesting identification of

all eged secrets but plaintiff "dragged its feet" in responding and merely li sted functions of all egedly secret software);

Computer Econ., Inc. v. Gartner Group, Inc. , No. 98-CV -0312 TW (CGA), 1999 WL 33 178020, at *6 (S.D. Cal. Dec.

14, 1999) (awarding defendant att orneys' fees for many reasons, including plaintiffs claims of "trade secret protection

over several vague classes of unprotectable information"); Multimedia Cablevision, Inc . v. Cal. Sec. Co-op, Inc., No.

94- 11 30-MLB, 1996 WL 4478 15, at * 1-2 (D. Kan. July 30, 1996) (sanctions issued against plaintiff where defendant 's

motion to compel better interrogatory answer on documents containing alleged secrets granted); Diversified Tech., Inc.

v. Dubin, 156 F.R.D. 132 (S.D. Miss. 1994) (depubli shed) (issue preclusion sanctions for plaintiffs repeated refusal

to identify alleged sec rets; "With trial of thi s matter set for less than a week from today, the prejudice to defendants is

immeasurable."); Automated Packaging Sys., Inc. v. Sharp Packaging, Inc. , No. 88-C-0656, 1989 WL 223755, at *3

(E.D. Wis. Mar. 17, 1989) (fees awarded for meritless request for preliminaty injunction where " [t]he plaintiffs case

fails because of its inability to establi sh any sort of identifiable trade secret which could lend itself to an injunctive

proceeding."); Cromaglass Corp. v. Ferm, 344 F. Supp. 924, 927 (M.D. Penn. 1972) (awarding di scovery sanctions

where defendant moved to compel over inadequate interrogatOlY responses on identificati on of alleged sec rets).

See Clearwater Sys. Corp. v. Evapco, Inc. , No. Civ.A 305CV507SRU, 2006 WL 726684, at *2 (D. Conn. Mar. 20,

2(06) (refusing to award UTSA attorneys' fees despite baseless lawsuit; "Clearwater's ineffective identification of

the trade secrets pursued in this case left much to be desired and doubtless increased EV APCO's costs in defending

the litigati on. Still , I am not convinced that Clearwater's problems with trade secret identification reflect a calcu lated

strategy to gain an advantage in the litigation or to unfairly compete wi th EV APCo.").

SNWJTIP68

End of Document 2015 Thomson Reuters. No claim to original U.S. Government Works.


1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43

SPECIAL MASTER THE HONORABLE BRUCE HILYER (RET.)

NOTED FOR CONSIDERATION: MARCH 5, 2015

SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KlNG COUNTY

MOVE, INC., a Delaware corporation, REALSELECT, INC., a Delaware corporation TOP PRODUCERS SYSTEMS COMPANY, a British Columbia unlimited liability company, NATIONAL ASSOCIATION OF REAL TORS, an Illinois non-profit corporation, and REALTORS INFORMATION NETWORK, INC., an Illinois corporation,

Plaintiffs,

v.

ZILLOW, INC., a Washington corporation, ERROL SAMUELSON, an individual, and DOES 1-20,

Defendants.

No. 14-2-07669-0 SEA

[ERG; 3E!Dl ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT ZILLOW, INC.'S MOTION FOR PROTECTIVE ORDER (J.P. MORGAN & GOLDMAN SACHS SUBPOENAS)

THIS MATTER came before the Special Master on Defendant Zillow, Inc.' s Motion

for Protective Order (J.P. Morgan & Goldman Sachs Subpoenas), filed on February 25,

44 2015. The Special Master, having considered all pleadings and papers submitted in 45 46 47

[p~fQse 1 '] ORDER GRANTING IN PART AND DENYING IN PART ZILLOW'S MOTION FOR PROTECTIVE ORDER - 1 56920'()0251LEGAL 125312708.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900

Seattle, WA 98101-3099 Phone: 206.359.8000

Fax: 206.359.9000

SM0998

connection with Defendant Zillow, Inc.'s Motion for Protective Order, the argument of 2 3 counsel, and being fully advised in the premises, 4 5 IT IS ORDERED that Zillow, Inc.'s Motion for Protective Order (J.P. Morgan & 6 7 Goldman Sachs Subpoenas) is: 8 9 GRANTED with respect to requests Nos. 1-5, 9-15, 17-18 and 20-21 in Exhibit A to

10 11 the Subpoena Duces Tecum Directed to Goldman Sachs Bank USA, and Goldman, Sachs & 12 13 Co., and therefore those requests are quashed; 14 15 GRANTED IN PART with respect to requests Nos. 8 and 16 in Exhibit A to the 16 17 Subpoena Duces Tecum Directed to Goldman Sachs Bank USA, and Goldman, Sachs & 18 19 Co., such that request No.8 is narrowed to "all documents generated or received in 20 21 connection with the Trulia Acquisition that mention or refer to Move, Inc. and/or 22 23 Realtor.com, and involve any communications with or reference to Errol Samuelson," and 24 25 request No. 16 is narrowed to "any analysis or evidence of any specific plan of Move or 26 27 Realtor.com regarding an acquisition involving Trulia"; 28 29 DENIED with respect to requests Nos. 6, 7 and 19 in Exhibit A to the Subpoena 30 31 Duces Tecum Directed to Goldman Sachs Bank USA, and Goldman, Sachs & Co.; 32 33 GRANTED with respect to requests Nos. 1-5, 7-8, 11-18, 20-24 in Exhibit A to the 34 35 Subpoena Duces Tecum Directed to J.P. Morgan Securities LLC, and therefore those 36 37 requests are quashed; 38 39 GRANTED IN PART with respect to requests Nos. 10 and 19 in Exhibit A to the 40 41 Subpoena Duces Tecum Directed to J.P. Morgan Securities LLC, such that request No. 10 is 42 43 narrowed to "all documents generated or received in connection with the Trulia Acquisition 44 45 that mention or refer to Move, Inc. and/or Realtor.com, and involve any communications 46 47

[P1l9? im] ORDER GRANTING IN PART AND DENYING IN PART ZILLOW'S MOTION FOR PROTECTIVE ORDER - 2 56920'()0251LEGAL 125312708.1

Perkins Coie LLP 1201 Third Avenue. Suite 4900

Seattle. WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

SM0999

I with or reference to Errol Samuelson," and request No. 19 is narrowed to "any analysis or 2 3 evidence of any specific plan of Move or Realtor.com to acquire Trulia"; and 4 5 6 7 8 9

10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47

DENIED with respect to requests Nos. 6 and 9 in Exhibit A to the Subpoena Duces

Tecum Directed to J.P. Morgan Securities LLC.

ENTERED this 3.L day of March, 2015.

~~, Special Master

[PRQP8SEB] ORDER GRANTING IN PART AND DENYING IN PART ZILLOW'S MOTION FOR PROTECTIVE ORDER - 3 S6920'()()2SILEGALI2S312708.1


Seattle, WA 98101-3099 Phone: 206.359.8000

Fax: 206.359.9000

SM 1000

1 2 Presented by: 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47

PERKINS COlE LLP MILLER NASH GRAHAM & DUNN LLP

By: By: ."S,--u-san----,:E::-."""'F,--os-t-er-, :OW7;S'""B::-A'--N=-o-'. 1:-:8"'0730::---- :::E'--st-er-a--;G::-o-r-;-do-n-,7.Wc;;S:;;B::-A:-7N;-o-.7::120":6:-::[email protected] [email protected] Kathleen M. O' Sullivan, WSBA No. Clemens H. Barnes, WSBA No. 4905 27850 [email protected] [email protected] Katherine G. Galipeau, WSBA No. 40812 Pier 70 [email protected] 2801 Alaskan Way, Suite 300

Seattle, WA 98121-1128 1201 Third Avenue, Suite 4900 Facsimile: (206) 340-9599 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000

Attorneys for Defendant Zillow, Inc.

CABLE LANGENBACH KINERK & BAUERLLP

Attorneys for Defendant Samuelson

JENNER & BLOCK LLP

By:c:--:-::--:-:::--:----==~:_:_~-:-:::-- By: _____________ _ Jack M. Lovejoy, WSBA No. 36962 Brent Caslin, WSBA No. 36145 Lawrence R. Cock, WSBA No. 20326 Richard L. Stone (Pro Hac Vice)

Suite 3500, 1000 Second Avenue Building Seattle, Washington 98104-1048 (206) 292-8800 phone (206) 292-0494 facsimile

Attorneys for Plaintiffs

./I'M' 65E13] ORDER GRANTING IN PART AND DENYING IN PART ZILLOW'S MOTION FOR PROTECTIVE ORDER - 4 56920.o025ILEGAL 125312708.1

633 West 5th Street, Suite 3600 Los Angeles, California 90071 (213) 239-5100 phone (213) 239-5199 facsimile

Attorneys for Plaintiffs


Seattle, WA 98101-3099 Phone: 206.359.8000

Fax: 206.359.9000

SM 1001

Documents

DECLARATIONJLOVEJOY_040715