In re HomeAdvisor, Inc.
In re HomeAdvisor, Inc.
2022 WL 4366015 (F.T.C. 2022)
September 12, 2022
Summary
The Federal Trade Commission (FTC) issued a subpoena to Triares, Inc. for documents and ESI related to an investigation. Triares, Inc. provided two documents and objections to the subpoena, but did not provide the certification required by the subpoena. The court must consider the risk of unauthorized disclosure of ESI when deciding whether to grant the subpoena, and must consider the ESI, including the subpoena package, Zoom and AgileLaw logon information, PDFs, KOR Certificates, Final Draft Supp Responses to Subpoenas, disclaimers, and IRS Circular 230 Notices.
Additional Decisions
In the Matter of HOMEADVISOR, INC., a corporation, d/b/a ANGI LEADS, d/b/a HOMEADVISOR POWERED BY ANGI
Docket No. 9407
Federal Trade Commission
September 12, 2022
COMPLAINT COUNSEL'S OPPOSITION TO NON-PARTY TRIARES, INC.'S EMERGENCY PETITION TO STAY DEPOSITION AND TO QUASH OR LIMIT SUBPOENA AD TESTIFICANDUM
*1 Triares, Inc. (“Triares”), brought its “emergency” motion to quash (“Motion”) twenty-four hours before a deposition it had known about--and had been trying to evade--since early July.[1] This untimely Motion relies on a nonexistent agreement: that Complaint Counsel agreed it would withdraw its deposition subpoena in exchange for a supplemental production. As Triares acknowledged in its own correspondence (see Motion Exhibit J), Complaint Counsel never made such an agreement and agreed only to consider the possibility of voluntary withdrawal if the production rendered the deposition unnecessary. After receiving a production that was not what Triares' Counsel described and that contained documents that do not speak for themselves, Complaint Counsel determined in good faith that the deposition would go forward.
Triares' unilateral assumption that the deposition would be cancelled should not permit it to dodge providing testimony on subjects that are highly relevant to the claims in this action, especially where the robust Protective Order governing this matter will shield Triares' claimed trade secrets from disclosure. Triares' baseless and untimely Motion should be denied, and Triares should appear for deposition at a mutually agreeable date.
I. BACKGROUND
A. Complaint Counsel's Subpoenas, the First-Agreed Deposition Date, and Triares' Much-Delayed Initial Document Production
Triares sold consumer information to Respondent HomeAdvisor, Inc. (“HomeAdvisor”), which HomeAdvisor sold as “leads.” Motion at 2. The Complaint alleges HomeAdvisor misrepresents characteristics of its leads, including those received from Triares. Compl. ¶¶ 61-63. On June 28, 2022, Complaint Counsel issued a Subpoena Duces Tecum (“Document Subpoena”) and a Subpoena Ad Testificandum (“Deposition Subpoena”) to Triares for information relating to the characteristics of leads it gathered and sold to HomeAdvisor. See PX01, attached to the accompanying Declaration of Mary Elizabeth Howe (“Howe Decl.”).[2] Triares was required to produce documents on or before July 28, 2022, and sit for deposition on August 11, 2022. Triares' Motion concedes it was served with these subpoenas on or about July 7, 2022. Motion at 2.
To accommodate Triares' counsel's travel schedule, Complaint Counsel agreed that Triares would not be deemed out of compliance with either subpoena if it engaged in a meet-and-confer by August 1, 2022. PX02 p. 12. At an August 1, 2022 meet-and-confer, Triares' counsel stated a production responsive to the Document Subpoena would be forthcoming that day; however, Complaint Counsel received nothing. Howe Decl. ¶ 3.a.i. Complaint Counsel repeatedly followed up by email, PX02 pp. 5-9, and Triares' counsel responded with delays. PX03 p. 1; PX02 p. 6; PX04 p. 1.
*2 While production was pending, Triares' counsel emailed its availability for deposition on August 26, 2022, and later wrote that he “would like to discuss further whether [deposition] is even necessary once you have a chance to review what we provide.” PX02 p. 6. On August 18, 2022--forty-two days after service--Triares produced two documents along with lengthy objections, many of which were not previously raised with Complaint Counsel. See PX05. Both documents produced appear to have originated from HomeAdvisor rather than Triares, id. pp. 16-62, and Triares objected in full to producing in response to four of the five document requests. On August 19, 2022, Complaint Counsel wrote to Triares' counsel that Triares' deposition would go forward as agreed on August 26, 2022. PX02 p.3.
B. Complaint Counsel's Agreement to Consider Voluntary Withdrawal of the Deposition Subpoena if Triares Made a Supplemental Document Production
Triares' counsel asked to confer again on August 22, 2022. PX02 pp. 1-2. On that call, Triares' counsel asked if Complaint Counsel would consider accepting an additional document production in lieu of taking Triares' deposition. Howe Decl. ¶ 3.b.ii. Complaint Counsel agreed to consider the possibility that a supplemental production might obviate the need for a deposition, but Complaint Counsel explained it could not consider withdrawing the deposition without seeing the production and could not guarantee would cancel the deposition even if Triares provided additional documents. Id. Complaint Counsel later memorialized this position via email. PX06 p. 17 (Aug. 24, 2022 Howe email); see also Motion Exhibit H. Complaint Counsel made clear the parameters for its agreement to consider voluntarily cancelling the deposition: (i) the deposition would be rescheduled to a date before the end of fact discovery to ensure it could go forward if necessary; (ii) Triares would execute two records certifications included with the Document Subpoena; and (iii) Triares would provide a concrete proposal for the scope and timing of a supplemental production within 24 hours. Id. ¶ 3.b.iii. By subsequent email, Triares' deposition was rescheduled to September 1, 2022. PX06 p. 14.
Complaint Counsel never agreed during any of its conferrals with Triares' counsel or subsequent email correspondence that it would cancel Triares' deposition in exchange for an additional document production. See Howe Decl. ¶ 3; PX06; PX08.
C. Triares' Supplemental Document Productions and Failure to Appear at Deposition
Complaint Counsel and Triares' counsel further conferred on August 24, 2022, regarding the scope of Triares' proposed supplemental production, including that Triares was preparing to produce a “spreadsheet” of consumer data shared with HomeAdvisor. Howe Decl. ¶ 3.c.i. On August 26, 2022, Triares produced 11 additional documents and a supplemental written response. Id. ¶¶ 4.b., 5; PX07. Complaint Counsel confirmed by email with Triares' counsel that it had received the full scope of what Triares intended to produce. PX08 pp. 15-16.
*3 The eleven documents produced consist of:
i. One of the two records certifications Complaint Counsel requested, Howe Decl. ¶ 4.b.ix.;
ii. Eight .pdf-format documents that appear to be image captures of the “submission form” portion of eight websites, none of which contain the date the webpage was captured or the websites' respective URLs, and one of does not indicate what website it is, id. ¶ 4.b.i.-viii. (responsive to Req. 1);
iii. Two .pdf-format documents that each appear to be approximately 25,000 pages of raw XML (eXtensible Markup Language) code of Triares' consumer data, rather than the single spreadsheet of organized data that Complaint Counsel was told to expect, id. ¶ 4.b.x.-xi (responsive to Req. 4).
Complaint Counsel reviewed these documents immediately and, on the next business day, informed Triares' Counsel that Triares' deposition would go forward on September 1, as previously agreed. Id. ¶ 5. Triares' Counsel thereafter filed the Motion and stated by email that Triares would not appear at the deposition. PX06 p.1.
Triares did not serve Complaint Counsel with formal written objections and responses to the Deposition Subpoena before filing the Motion, Howe Decl. ¶ 6, and Triares' Counsel did not ask for specific limitations or modifications to any deposition topic until an August 31, 2022 email sent after service of the Motion. See PX08 pp. 1-3. On September 1, 2022, Complaint Counsel appeared at the deposition; Triares did not. Howe Decl. ¶ 7.
II. ARGUMENT
Triares' untimely Motion grossly misstates the parties' conferrals and course of dealing, referencing nonexistent “agreements” to narrow or abandon discovery. In reality, Triares has engaged in a campaign to evade providing any meaningful discovery, providing only 13 documents (most of which do not speak for themselves) and failing to appear for a duly-noticed deposition on an agreed-upon date.
In bringing its Motion, Triares bore the burden of showing why discovery should be denied, see In re Polypore Int'l, Inc., 2008 WL 4947490, at *6 (F.T.C. Nov. 18, 2008), and has failed to do so. The testimony sought is directly relevant to Complaint Counsel's claims: HomeAdvisor is alleged to have made false or misleading claims about leads received from Triares, and Triares is the sole party in possession of the truth regarding how it gathered leads. Indeed, Triares explicitly relies on being the only party in possession of that information, stating that its means of gathering leads are secrets that HomeAdvisor does not know. Where, as here, a strict Protective Order bars disclosure of information Triares designates as “Confidential” from the public and from HomeAdvisor itself, Protective Order at ¶¶ 7-8, and the information sought is centrally relevant, Complaint Counsel's ability to take testimony from Triares should not be limited or forestalled.
*4 Triares' complete disregard of this proceeding, the Rules of Procedure, and its own representations to Complaint Counsel should not be permitted to stand. Triares' Motion should be denied, and Triares should sit for deposition.
A. Triares' Motion is Untimely
Triares' motion is plainly untimely and violates the Rules of Practice.[3] Under Commission Rule 3.34(c), Triares was bound to file the Motion “within the earlier of 10 days after service thereof or the time for compliance therewith.” 16 C.F.R. § 3.34(c). Triares acknowledges it received the Deposition Subpoena on or around July 7, 2022, and the subpoena itself originally set the deposition for August 11, 2022. The “earlier” date by which Triares should have moved was therefore July 18, 2022, nearly two months ago. Instead, in that time, Triares rescheduled the deposition twice on mutually convenient dates, without serving even cursory written objections to the Deposition Subpoena or its scope, in apparent hope that the deposition would be voluntarily cancelled. See Howe Decl. ¶¶ 5-6; PX02 p. 8; PX06 p. 14. Triares' failure to file until August 31, 2022--55 days after service, 30 days after the initial meet-and-confer, and the day before the agreed-upon date for the deposition--is fatal to Triares' Motion.[4]
B. Complaint Counsel Never Agreed to Withdraw the Deposition Subpoena in Exchange for a Supplemental Production
Triares' “understanding” that its deposition would not go forward flies in the face of explicit admonitions--both verbal and written--that Complaint Counsel would not guarantee cancellation of the deposition. Even the highly selective exhibits attached by Triares make plain that no agreement to cancel the deposition existed:
i. Exhibit H, August 24, 2022 (Complaint Counsel): “As we discussed, an additional production does not guarantee that Complaint Counsel will consent to forego your client's deposition; we will have to review what your client ultimately produces to make that determination.” (emphasis added).
ii. Exhibit J, August 24, 2022 (Triares' Counsel): “As discussed, you have agreed to review the additional documentation/data we expect to send you tomorrow in consideration of withdrawing the deposition subpoena. I understand you cannot make that determination until you review the documentation/data ....”
Rather than obviating the need for deposition, Triares' production ensured its necessity. The webpages produced do not contain URLs, timestamps, or, in one case, even the name of the website, and they do not contain the terms and conditions that the consumer was accepting by submitting their information. Howe Decl. ¶ 4.b.i.-viii. Moreover, when Triares touts that it produced 50,000 pages of documents, it neglects to mention that thousands of pages consist of raw code in place of the single organized spreadsheet of consumer data that Triares claimed it would provide. Id. ¶¶ 3.c.i., 4.b.x.-xi. Neither this inscrutable code nor the haphazard website captures speak for themselves; it is necessary for Triares to testify about these documents.
*5 Complaint Counsel considered in good faith whether Triares' deposition was necessary and determined that it was. Complaint Counsel cannot be bound by a fictional agreement or an unfounded “understanding.” Triares should sit for deposition.
C. The Testimony Sought is Highly Relevant and Should Not Be Limited
Triares' motion woefully misconstrues its relevance to this case. Complaint Counsel alleges HomeAdvisor made false or misleading statements about the leads it sells, including inter alia, that they concern consumers who are “serious” about hiring a service professional, not “just window-shop[ping],” “actively seeking the services you provide in your area,” and/or who knowingly sought HomeAdvisor's assistance in selecting a service provider. See, e.g., Compl. ¶¶ 27-29, 44, 61-63. Where Triares actually collected consumers' information, Triares, and not HomeAdvisor, possesses the proof of what those consumers actually expressed and what they were told when they submitted their information--i.e., proof of falsity, especially where Triares avers that it does not share this information with HomeAdvisor. Motion at 2 (“To generate Leads, Triares uses proprietary technology and methodologies that it closely guards and protects from public disclosure including, especially, the Respondent”). Triares' position also confirms this discovery is neither cumulative or duplicative because Triares alone possesses this information, which falls squarely within permissible discovery under Rule 3.31(c)(1). See In re Otto Block HeathCare N. Am. Inc., 2018 WL 1836647 (F.T.C Mar. 28, 2018) (denying motion to quash where respondent argued third party deponent was “uniquely in possession of” information “critical to the claims and defenses in this case”).
D. The Protective Order More Than Adequately Addresses Triares' Trade Secret Concerns
The trade secret limitation Triares has requested--and never properly sought prior to the Motion--must be rejected. The Motion crystalizes that Triares' supposed trade secrets are the key relevant testimony that Triares must provide and no limitation should be ordered.
Triares' argues that testifying regarding its non-public methods will result in its “inevitable demise.” Motion at 10. Its hyperbole should not be credited because Triares has not explained why this action's robust Protective Order is insufficient. See In re Lab. Corp., 2011 FTC LEXIS 5, at *3-5 (Jan. 28, 2011) (denying a third party's request to restrict discovery because an existing protective order would adequately protect trade secrets); see also In re Lab. Corp., 2011 WL 668514, at *2 (F.T.C. Feb. 17, 2011) (“‘The fact that discovery might result in the disclosure of sensitive competitive information is not a basis for denying such discovery.”’) (quoting LeBaron v. Rohm & Hass Co., 441 F.2d 575, 577 (9th Cir. 1971)). Complaint Counsel's subpoenas do not demand that Triares' “proprietary, highly confidential, and competitively sensitive information” be revealed to the public or even to Respondent. Triares is free to designate its testimony “Confidential” and ensure that (i) it may not be disclosed beyond “outside counsel of record for any respondent, their associated attorneys and other employees of their law firm(s) provided they are not employees of a respondent,” under Paragraph 7, and (ii) it may not be used other than in this proceeding any appeal therefrom, under Paragraph 8. Because Triares' claimed interest in secrecy is adequately addressed by the Protective Order, its Motion should be denied.
CONCLUSION
*6 For the foregoing reasons, Triares' Motion should be denied.
Respectfully submitted,
Sophia H. Calderón
Colin D. A. MacDonald
Breena M. Roos
M. Elizabeth Howe
Katharine F. Barach
Nadine S. Samter
Ben A. Halpern-Meeken
Federal Trade Commission
Northwest Region
915 Second Ave., Suite 2896
Seattle, WA 98174
Tel.: (206) 220-6350
Fax: (206) 220-6366
Email: scalderon@ftc.gov
cmacdonald@ftc.gov
broos@ftc.gov
mhowe@ftc.gov
kbarach@ftc.gov
nsamter@ftc.gov
bhalpernmeeken@ftc.gov
Counsel Supporting the Complaint
Dated: September 12, 2022
DECLARATION OF MARY ELIZABETH HOWE
My name is Mary Elizabeth Howe, I am over eighteen years of age, and I am a citizen of the United States. I have personal knowledge of the information contained herein. If called as a witness, I could and would testify as follows:
1. I am an attorney licensed to practice law in New York and Washington, am a full-time employee of the Federal Trade Commission, and am Complaint Counsel in the above-captioned matter.
3. Below is a summary of certain discussions that took place during meet-and-confer conferences that Complaint Counsel subsequently engaged in with counsel for Triares, Travis Jacobs of The Jacobs Law, LLC, relating to the Subpoenas. The below does not purport to be an exhaustive transcript of all points discussed at these meet-and-confers:
a. First Meet-And-Confer (August 1, 2022): On August 1, 2022, Complaint Counsel Katherine Barach, Colin D. A. MacDonald, and I participated in a telephonic meet-and-confer with Mr. Jacobs, arranged in advance via email. See PX02, infra, at pp. 9-11.
*7 i. During the August 1, 2022 call, Mr. Jacobs offered to produce the written responses and objections and documents Triares had previously produced in Airquip, Inc., et al. v. HomeAdvisor, Inc., et al., Case No. 1:16cv1849 (filed July 19, 2016, D. Colo.) (“Airquip responses”) and indicated that his position was that these responses would satisfy the requests in Complaint Counsel's Subpoena Duces Tecum to Triares. I informed Mr. Jacobs that Complaint Counsel could not assess the adequacy of the Airquip responses as a separate response to the Subpoena Duces Tecum without examining those documents. Mr. Jacobs indicated that he would send the Airquip responses to Complaint Counsel immediately following completion of the meet-and-confer call; Complaint Counsel and Mr. Jacobs discussed reconvening to discuss the sufficiency of the Airquip responses and any further production needed as early as the next day.
ii. At no time during the August 1, 2022 call did Complaint Counsel agree to limit or otherwise modify the scope of either of the Subpoenas based on the proposed production by Triares of the Airquip responses.
iii. At no time during the August 1, 2022 call did Mr. Jacobs request to limit or modify the scope of the Subpoena Ad Testificandum to Triares. Mr. Jacobs suggested that Triares could submit an affidavit in lieu of appearing for deposition, which Complaint Counsel indicated would not be sufficient. Complaint Counsel and Mr. Jacobs discussed that Mr. Jacobs would verify Triares' availability to sit for deposition on August 22, 23, or 26, 2022. (Mr. Jacobs subsequently confirmed Triares' availability to sit for deposition on August 26, 2022 by email. PX02, infra, at p.8).
iv. During the call, Mr. Jacobs raised his position that, with respect to Request No. 3 of the Subpoena Duces Tecum, Triares viewed the requested materials as containing trade secrets that were not known to the public or to Respondent HomeAdvisor, Inc. (“HomeAdvisor”). Complaint Counsel conveyed the position that any trade secrets could be adequately protected by the Protective Order issued in this case and directed Mr. Jacobs to the limitation on the dissemination of materials beyond counsel for Respondent in Paragraph 7 of the Protective Order.
b. Second Meet-And-Confer (August 22, 2022): On August 22, 2022, Complaint Counsel Ben A. Halpern-Meekin and I participated in a zoom conference call with Mr. Jacobs, which had been arranged by email in advance. See PX02, at pp. 1-2.
i. During the call, Mr. Jacobs stated his position that deposition of Triares was premature. I informed him that fact discovery in this action was due to close on September 6, 2022, and that Triares' deposition would need to take place before that date.
ii. During the call, Mr. Jacobs requested that Complaint Counsel consider accepting an additional document production from Triares in lieu of taking Triares' deposition. I indicated that, if Triares produced additional documents, Complaint Counsel would be willing to consider whether such a production would obviate the need for Triares to sit for deposition, but (i) Complaint Counsel could not make that determination without seeing the proposed production; and (ii) Complaint Counsel could not guarantee that it would necessarily cancel the deposition if Triares provided further documents. At no point during the call did Compliant Counsel agree to cancel Triares' deposition solely because Triares provided additional documents.
*8 iii. During the call, I informed Mr. Jacobs of the following conditions for Complaint Counsel to consider cancellation of Triares' deposition: (i) because Triares was proposing to provide a supplemental production too late for Complaint Counsel to serve it on Counsel for Respondent at least three Business days before the deposition (then scheduled for August 26, 2022), Mr. Jacobs would have to provide Triares' availability for a rescheduled deposition the week of August 29, 2022, through September 2, 2022, or else the deposition would have to go forward as previously scheduled; (ii) at a minimum, Triares' supplemental production would need to contain executed copies of two records certifications that Complaint Counsel included with the Subpoena Duces Tecum (see PX01, pp. 6-7), which Triares had not returned with its initial production; and (iii) Triares would need to provide Complaint Counsel with a concrete proposal within 24 hours regarding the scope and timing of its proposed supplemental production.
iv. Mr. Jacobs inquired about the possibility of Triares submitting written interrogatory responses in lieu of sitting for deposition and asked why the requested discovery could not be obtained directly from HomeAdvisor. He did not request limitations or modifications of any deposition topic.
c. Third Meet-And-Confer (August 24, 2022): On August 24, 2022, Complaint Counsel Ben A. Halpern-Meekin and I participated in a zoom conference call with Mr. Jacobs, which had been arranged by email in advance, see PX06, infra, at p.16.
i. During the call, Mr. Jacobs explained that his client was compiling what he specifically described as a “spreadsheet” that would contain data responsive to Request No. 4 of the Subpoena Duces Tecum. He described that the spreadsheet would contain both (i) information submitted to Triares by consumers and then transmitted to HomeAdvisor and (ii) column headings that would identify specific questions that consumers answered in submitting their information to Triares, including any set options the customer was asked to select between when providing their answers (i.e., from a dropdown/multiple choice menu).
ii. As Triares had previously refused to produce any documents in response to Subpoena Duces Tecum Request Nos. 1 and 2 on the grounds that it viewed this information as trade secrets that were unknown to HomeAdvisor, I requested that Triares produce image captures of the current and historical version of websites of which Triares knew HomeAdvisor to be already aware, specifically including homeyou.com and ehardhat.com.
iii. During the call, I reiterated that Triares would need to provide copies of the two record certifications Complaint Counsel had requested and included with the subpoena in order for Complaint Counsel to cancel the deposition.
iv. During the call, I informed Mr. Jacobs that Complaint Counsel could not consider the sufficiency of a proposed supplemental production as a potential alternative to deposition without rescheduling the deposition to a date certain before the close of fact discovery, to preserve Complaint Counsel's ability to take the deposition, if necessary, after receipt of the production. I informed Mr. Jacobs that if Triares did not provide a new date for deposition by the close of business on August 25, 2022, and if that date was not confirmed with Counsel for HomeAdvisor, Complaint Counsel would proceed with Triares' deposition on August 26, 2022, as previously scheduled. At no point during the call did Compliant Counsel agree to cancel Triares' deposition if Triares provided additional documents.
*9 v. At no point during the call did Mr. Jacobs raise any objections to the scope of the deposition or request any limitation to the scope of the deposition.
4. Below is a summary of the productions received by Complaint Counsel in response to the Subpoena Duces Tecum to Triares:
a. Initial Production (August 18, 2022): On August 18, 2022, Mr. Jacobs served Complaint Counsel by email with a 62-page .pdf-format document containing the 15-page-long “Responses and Objections of Non-Party Triares Inc. to Subpoena Duces Tecum” and 47 pages branded with “TRIARES INC (Non-Party) Response 8/18/2022” and consecutively numbered pages. See PX05, infra.
b. Supplemental Production (August 26, 2020): On August 26, 2022, Triares produced a supplemental written response to the Subpoena Duces Tecum (see PX07, infra) and eleven documents to Complaint Counsel. The documents produced are described below and, except where indicated, were designated Confidential by Triares under the Protective Order in this case:
i. “0048-0050.pdf” is a three-page document which appears to be a .pdf conversion of a submission form from a website (i.e., a form seeking that an internet user submit information to the website's operator). The trade name of the website is visible, but the capture does not include the URL of the webpage or the date the conversion was performed, and it includes no other pages from the website beyond the submission form.
ii. “0051-0057.pdf” is a seven-page document which appears to be a .pdf conversion of a submission form from a website. The name of the website is visible, but the capture does not include the URL of the webpage or the date the conversion was performed, and it includes no other pages from the website beyond the submission form.
iii. “0058-0065.pdf” is an eight-page document which appears to be a .pdf conversion of a submission form from a website. The trade name of the website is visible, but the capture does not include the URL of the webpage or the date the conversion was performed, and it includes no other pages from the website beyond the submission form.
iv. “0066-0072.pdf” is a seven-page document which appears to be a .pdf conversion of a submission form from a website. The trade name of the website is visible, but the capture does not include the URL of the webpage or the date the conversion was performed, and it includes no other pages from the website beyond the submission form.
v. “0073-0079.pdf” is a seven-page document which appears to be a .pdf conversion of a submission form from a website. The trade name of the website is visible, but the capture does not include the URL of the webpage or the date the conversion was performed, and it includes no other pages from the website beyond the submission form.
*10 vi. “0080-0087.pdf” is an eight-page document which appears to be a .pdf conversion of a submission form from a website. The trade name of the website is not visible, and the capture does not include the URL of the webpage or the date the conversion was performed, and it includes no other pages from the website beyond the submission form.
vii. “0088-0094.pdf” is a seven-page document which appears to be a .pdf conversion of a submission form from a website. The trade name of the website is visible, but the capture does not include the URL of the webpage or the date the conversion was performed, and it includes no other pages from the website beyond the submission form.
viii. “0095-0096.pdf” is a two-page document which appears to be a .pdf conversion of a submission form from a website. The trade name of the website is visible, but the capture does not include the URL of the webpage or the date the conversion was performed, and it includes no other pages from the website beyond the submission form.
ix. “KOR Certificate 8-26-2022.pdf” is an executed Certification of Records of Regularly Conducted Activity as requested by Complaint Counsel's Subpoena Duces Tecum, see PX01 at p.7, and is not designated Confidential;
x. “000097-026041.pdf” is a 25,945-page .pdf-format document which appears to be a conversion of a text (or similar format) file containing the raw XML (eXtensible Markup Language) code utilized by Triares to transmit “lead” data for individual consumers to HomeAdvisor for leads dated between September 1, 2020, and September 15, 2020. While the lead data in this document appears to include the consumer information that was collected by Triares, the XML code does not appear to include the specific text of the prompts to which the customer was replying nor any options from which the customer selected.
xi. “026042-053892.pdf” is a 27,851-page .pdf-format document which appears to be a conversion of a text (or similar format) file containing the raw XML code utilized by Triares to transmit “lead” data for individual consumers to HomeAdvisor for leads dated between September 15, 2020, and September 30, 2020. While the lead data in this document appears to include the consumer information that was collected by Triares, the XML code does not appear to include the specific text of the prompts to which the customer was replying nor any options from which the customer selected.
5. By written correspondence, Triares' deposition was rescheduled to September 1, 2022, beginning at 9:00 a.m. Pacific Daylight Time. See PX06 at p.14. Triares' supplemental production was produced to Complaint Counsel in two parts via ProofPoint and DropBox document transfer systems at 2:17 p.m. and 2:21 p.m. Pacific Daylight Time, respectively, on Friday August 26, 2022. Complaint Counsel downloaded the production immediately upon receipt and wrote to Mr. Jacobs to confirm what files had been received and downloaded (see PX06 at p.13-14), and thereafter served the supplemental production on counsel for HomeAdvisor. Complaint Counsel reviewed these productions for sufficiency that evening and over the weekend of August 27-28, 2022, and informed Mr. Jacobs via email at approximately 2:10 p.m. Pacific Daylight Time (5:10 p.m. Eastern) on August 29, 2022, that Complaint Counsel had determined that the deposition of Triares would need to go forward. See PX06 at p.12.
*11 6. On August 31, 2022, Mr. Jacobs served Complaint Counsel via email with Non-Party Triares, Inc.'s Emergency Petition to Stay Deposition and to Quash or Limit Subpoena Ad Testificandum (“Motion”). PX06 at pp.1-2. On that same day, in order to ensure that Counsel for Respondent was aware of Triares' Motion because Complaint Counsel had received no confirmation of AEFS filing and the Motion did not contain a certificate of service, Complaint Counsel emailed Counsel for HomeAdvisor to provide a copy of the Motion and to state that Complaint Counsel intended to appear at the remote deposition as scheduled. At no time prior to the filing of the Motion did Triares serve Complaint Counsel with any formal written objections or responses to the Subpoena Ad Testificandum.
7. On September 1, 2022, at approximately 9:11a.m. Pacific Daylight Time, I convened the remote deposition of Triares; I noted on record that Triares, through its designee(s), had failed to appear and reserved Complaint Counsel's rights and remedies with respect to the deposition going forward at a later date. Counsel for HomeAdvisor was in attendance and stated on record that HomeAdvisor took no position regarding Triares' failure to appear at the deposition.
8. I attach the below exhibits to this Declaration:
a. Attached hereto as PX01 is a true and correct copy of the subpoena package served on Triares by mail on June 28, 2022, containing Complaint Counsel's Subpoena Duces Tecum and Subpoena Ad Testificandum to Triares.
b. Attached hereto as PX02 is a true and correct copy of an email exchange between Complaint Counsel and attorneys from The Jacobs Law LLC, including Amie DiGiampalo and Travis Jacobs, from between July 14, 2022, and August 22, 2022.
c. Attached hereto as PX03 is a true and correct copy of an email exchange between Complaint Counsel and attorneys from The Jacobs Law LLC, including Amie DiGiampalo and Travis Jacobs, from between July 14, 2022, and August 2, 2022.
d. Attached hereto as PX04 is a true and correct copy of an email exchange between Complaint Counsel and attorneys from The Jacobs Law LLC, including Amie DiGiampalo and Travis Jacobs, from between July 14, 2022, and August 12, 2022.
e. Attached hereto as PX05 is a true and correct copy of a 62-page .pdf document served by email by Travis Jacobs on August 18, 2022, containing a 15-page document entitled “Responses and Objections of Non-Party Triares Inc. to Subpoena Duces Tecum” and 47 pages branded with “TRIARES INC (Non-Party) Response 8/18/2022” and consecutive page numbering from 0001 through 0047. Complaint Counsel received similar documents to the pages numbered 0001-0047 from HomeAdvisor in discovery in this matter which HomeAdvisor designated “Confidential” under the Protective Order in this case. In an abundance of caution, Complaint Counsel has redacted these documents from the public version of this filing.
f. Attached hereto as PX06 is a true and correct copy of an email exchange between Complaint Counsel and Travis Jacobs of The Jacobs Law LLC from between August 22, 2022, and August 31, 2022.
*12 g. Attached hereto as PX07 is a true and correct copy of a document entitled “Supplemental Responses and Objections of Non-Party Triares Inc. to Subpoena Duces Tecum,” served on Complaint Counsel on August 26, 2022.
h. Attached hereto as PX08 is a true and correct copy of an email exchange between Complaint Counsel and Travis Jacobs of The Jacobs Law LLC from between August 22, 2022, and August 31, 2022.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.
Mary Elizabeth Howe
Counsel Supporting the Complaint
Executed on September 12, 2022.
Footnotes
Complaint Counsel convened the deposition September 1, 2022, without a deponent. Complaint Counsel reserved all rights on the record and considers the deposition to be pending.
Exhibits to the Howe Decl. are referred to herein by their “PX” designation.
Triares' Motion lacks a statement under 16 C.F.R. §3.22(g); although Triares' Counsel conferred regarding concerns including relevance and trade secrets, it did not raise its request to limit the deposition until after filing the Motion. PX08 pp. 1-3. The Scheduling Order makes clear that this failure alone is fatal to Triares' Motion. Scheduling Order Additional Provision ¶ 4.
Even considering Complaint Counsel's agreement that it would not view Triares as out of compliance before August 1, 2022, see PX02, the filing deadline expired at the latest on August 11, 2022.