FILED

15 APR 14 AM 9:00

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KING COUNTY
SUPERIOR COURT CLERK
E-FILED
CASE NUMBER: 14-2-07669-0 SEA

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,

No. 14-2-07669-0 SEA

ZILLOWS REPLY IN SUPPORT OF ITS
MOTION TO SEAL THE
DECLARATION OF DAVID SINGER
FILED BY PLAINTIFFS ON APRIL 10,
2015

Plaintiffs,
v.
ZILLOW, INC., a Washington corporation,
ERROL SAMUELSON, an individual,
CURT BEARDSLEY, an individual, and
DOES 1-20,
Defendants.

ZILLOWS 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

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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
COUNSELS 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 Courts permission to file that document

ZILLOWS 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

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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
Letters 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 Zillows Emergency Motion for Preservation, which the Special Master granted
yesterday.

ZILLOWS 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

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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.

ZILLOWS 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

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DATED: April 14, 2015

/s/Susan E. Foster
Susan E. Foster, WSBA No. 18030
SFoster@perkinscoie.com
Kathleen M. OSullivan, WSBA No. 27850
KOSullivan@perkinscoie.com
David J. Burman, WSBA No. 10611
DBurman@perkinscoie.com
Judith B. Jennison, WSBA No. 36463
JJennison@perkinscoie.com
Mary P. Gaston, WSBA No. 27258
MGaston@perkinscoie.com
Katherine G. Galipeau, WSBA No. 40812
KGalipeau@perkinscoie.com
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.

ZILLOWS 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

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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: ZILLOWS 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

Via Hand Delivery

Via U.S. Mail, 1st Class, Postage
Prepaid
Via Overnight Delivery
Via Facsimile
Via E-filing
Via E-mail

jlovejoy@cablelang.com
LRC@cablelang.com
kalbritton@cablelang.com
jpetersen@cablelang.com
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

Via Hand Delivery

Via U.S. Mail, 1st Class, Postage
Prepaid
Via Overnight Delivery
Via Facsimile
Via E-filing
Via E-mail

clemens.barnes@millernash.com
connie.hays@millernash.com
estera.gordon@millernash.com
michael.fandel@millernash.com
robert.mittenthal@millernash.com

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

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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

Via Hand Delivery

Via U.S. Mail, 1st Class, Postage
Prepaid
Via Overnight Delivery
Via Facsimile
Via E-filing
Via E-mail

bcaslin@jenner.com
rstone@jenner.com
nsaros@jenner.com
JNjathi@jenner.com
eglickstein@jenner.com
jatteberry@jenner.com
dsinger@jenner.com
drozansky@jenner.com
avanhoesen@jenner.com

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

Via Hand Delivery

Via U.S. Mail, 1st Class, Postage
Prepaid
Via Overnight Delivery
Via Facsimile
Via E-filing
Via E-mail

jsavitt@sbwllp.com
dgraham@sbwllp.com
rsolomon@sbwllp.com
clein@sbwllp.com
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

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