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FILED

15 APR 07 AM 9:00
KING COUNTY
THE HONORABLE
JOHN CHUN
SUPERIOR COURT CLERK
Noted For Consideration: April
20, 2015
E-FILED
ORAL ARGUMENT
REQUESTED
CASE NUMBER: 14-2-07669-0 SEA
AT A TIME SET BY THECOURT

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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

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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,

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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

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Case No. 14-2-07669-0 SEA

Plaintiffs,
COURT ORDER DATED _______

vs.
ZILLOW, INC., a Washington corporation,
ERROL SAMUELSON, an individual, and
CURT BEARDSLEY, an individual,
Defendants.

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DECLARATION OF JACK M. LOVEJOY IN SUPPORT OF


MOTION TO REVISE SPECIAL MASTER ORDER RE GOLDMAN
SACHS AND J.P. MORGAN SUBPOENAS

CABLE, LANGENBACH,
KINERK & BAUER, LLP
1000 SECOND AVENUE, SUITE 3500
SEATTLE, WASHINGTON 98104-1048
(206) 292-8800

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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:

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


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

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

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

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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

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

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Morgan & Goldman Sachs Subpoenas);

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DECLARATION OF JACK M. LOVEJOY IN SUPPORT OF


MOTION TO REVISE SPECIAL MASTER ORDER RE GOLDMAN
SACHS AND J.P. MORGAN SUBPOENAS - 1

CABLE, LANGENBACH,
KINERK & BAUER, LLP
1000 SECOND AVENUE, SUITE 3500
SEATTLE, WASHINGTON 98104-1048
(206) 292-8800

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

Special Master (submitted under seal).

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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

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DECLARATION OF JACK M. LOVEJOY IN SUPPORT OF


MOTION TO REVISE SPECIAL MASTER ORDER RE GOLDMAN
SACHS AND J.P. MORGAN SUBPOENAS - 2

CABLE, LANGENBACH,
KINERK & BAUER, LLP
1000 SECOND AVENUE, SUITE 3500
SEATTLE, WASHINGTON 98104-1048
(206) 292-8800

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON


IN AND FOR THE COUNTY OF KING
NO. 14207669-0 SEA
NOTICE FOR HEARING
SEATTLE COURTHOUSE ONLY
(Clerk's Action Required) (NTH G)

MOVE, INC ., et ai,


Plaintiffs,
vs.

ZILLOW, INC. and ERROL SAMUELSON ,


Defendants
TO:
THE CLERK OF THE COURT and to aU other parties per lisl on Page 2:
PLEASE TAKE NOTICE Ihat an issue of law in Ihis case will be heard on the dale below and Ihe Clerk is
directed to note this issue on the calendar checked below.
Calendar Date :

March 5, 2015

Day of Week: Thursday

Nature of Motion: Defendant Zillow's Motion For Protective Order (J.P Morgan & Goldman Sachs
Subpoenas)
CASES ASSIGNED TO INDIVIDUAL JUDGES - SEADLE
If oral argument on the motion is allowed (LCR 7(b)(2ll, contact staff of assigned judge to schedule date and time
before filing this notice. Working Papers : The judge's name, date and time of hearing must be noted in the upper
right corner of the Judge's copy. Deliver Judge's copies to Judges' Mailroom at C203
[ I W ithout oral argument (Mon Fri)
[Xl With ora! argumen t Hearing
Datemme: March 5, 2015
Judge's Name: Bruce Hilyer (Ret.) Trial Date : 10/26/15
CHIEF CRIMINAL DEPARTMENT - SEADLE (E1201)

1Bond Forfeiture 3: 15 pm , 2"' Thursday of each month


[ 1Certificates of Rehabilitation. Weapon Possession (Convictions from
[

Limited Jurisdiction Courts )

3:30 First Tues of each month


CHIEF CIVIL DEPARTMENT - SEATTLE (Please report to W864 for assignment)
Deliver working copies to Judges' Mailroom, Room C203. In upper right comer of papers write Chief Civil
Departm ent" orjlldge's name and date of hearing
[ I Extraordinary Writs (Show Cause Heari ng) (LCR 98.40) 1:30 p,m, TuesM'ed report to Room W864
[ I Supplementat Proceedings! Judicial Subpoenas (1:30 pm TuesM'ed)(LCR 69)
[ I Motions to Consolidate with multiple judges assigned (LCR 40(a)(4) (Without oral argument) M-F
[ I Structured Settlements (1 :30 pm TuesiWed)(LCR 40(2)(5
NonAsslgned Cases:
[ I Non-Dispositive Motions MF (without ora l argument).
[ I Dispositi ve Mollans and Revisions (1 :30 pm TuesiWed).
[ I Certificates af Rehabililation (Employment) 1:30 pm TuesM'ed (LR 40(a)(2)(8))
You may li".l a~ address th,t i5 at your residential address where you agree to accept legal documents,
Sign:
,,
'
PrintlType Name: Kathleen M. O'Sullivan
WSBA #

27850

(if aHorn ey)

Address: 1201 Third Avenue Suite 4900


Telephone: (205) 3598000

Attorney for: _D"""e",fe"-n",d",a",n,,,tZ


..i"'I1""ow"'-_ _ _ _ _ _ __
City, State, Zip Seattle, WA 981013099
Da te: -,-,Fe",b<,-r",
ua
",r.Ly~2,,5~,2
...0,,1"'5_ _ _ __ _ __

NOTICE FOR HEARING - SEATTLE COURTHOUSE ONLY

Page

56920.[)()25iLEGAI.1 25 IS l Ml_ 1

SM0735

LlST NAMES AND SERVICE ADDRESSES FOR ALL NECESSARY PARTIES REQUIRING NOTICE
Jack M. Lovejoy, WSBA #36962
Clemens H. Barnes, Esq., WSBA No. 4905
Lawrence R. Cock, WSBA #20326
Estera Gordon, WSBA No. 12655
Cable, Langenbach, Kinerk & Bauer, lLP
Daniel J. Oates, WSBA No. 39334
1000 Second Avenue, Suite 3500
Miller Nash Graham & Dunn LLP
Seattle, WA 98104-1048
Pier 70
Attorneys for Plaintiffs
2801 Alaskan Way, Suite 300
(206) 292-8800
Seattle, WA 98121-1128
jlovejoy@cablelang.com
cbarnes@clemens.barnes@millernash.com
egordon@millernash .com
LRC@cablelang.com
kalbritton@cablelang.com
doates@rnillernash.com
jpelersen@cablelang.com
connie. hays@millernash.com
robert.mitlenlhal@millernash.com
Brent Caslin, WSBA No, 36145
Richard Lee Stone, (Pro Hac Vice)
Nick G. Saros, (Pro Hac Vice)
Charles H. Abbott III, (Pro Hac Vice)
Jeffrey A Atteberry, (Pro Hac Vice)
Samuel D. Green, (Pro Hac Vice)
Jenner & Block LLP
633 West 5th Street, Suite 3600
los Angeles, CA 90071
Telephone (213) 239-5150
bcaslin@jenner.com
rstone@Jenner.com
nsaros@jenneLcom
chabbott@jenner.com
jatle be rry@Jenner.com
sgreen@jenner.com

IMPORTANT NOTICE REGARDING CASES


Party requesting hearing must file motion & affidavits separately along with Ihis nolice. List the names, addresses and telephone
numbers of all parties requiring notice (including GAL) on this page. Serve a copy of this notice, with motion documents, on all
parties.
The original must be filed althe Clerk's Office not less than six GOurt days prior to requested hearing date, except lor Summary
Judgment Motinns (to be filed with Clerk 28 days in advance).
THIS IS ONLY A PARTIAL SUMMARY OF THE LOCAL RULES AND ALL PARTIES ARE ADVISED TO CONSULT WITH AN
ATTORNEY.
The SEATTLE COURTHOUSE is in Seattle, Washington at 516 Third Avenue. The Clerk's Office is on Ihe sixth fioor, room
E609. The Judges' Mailroom is Room C203.

NOTICE FOR HEARING - SEATTLE COURTHOUSE ONLY


5692(J-OD25/LEGAL1251516..)I I

SM0736

EXHIBIT A

SM0759

HONORABLE JOHN CHUN

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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

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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,

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PLAINTIFFS' NOTICE OF INTENT TO


ISSUE SUBPOENAS DUCES TECUM

Plaintiffs,

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Case No. 14-2-07669-0 SEA

vs.
ZILLOW, INC., a Washington corporation,
and ERROL SAMUELSON, an individual,

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Defendants.
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TO:

ALL PARTIES OF RECORD

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AND TO:

ALL COUNSEL OF RECORD

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PLEASE TAKE NOTICE that subpoenas duces tecum commanding production of

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documents and things in the forms attached will be served on the records custodians for The

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Goldman Sachs Group, Inc. and J.P. Morgan Securities LLC after five (5) days from the date of

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PLAINTIFFS' NOTICE OF INTENT TO ISSUE SUBPOENAS
DUCES TECUM- I
[CASE NO. 14-2-07669-0 SEA]

CABLE, LANGENBACH,
KlNERK & BAUER, LLP
1000 SECOND AVENUE, SUITE 3500
SEATTLE, WASHINGTON 98104-1048
(206) 292-8800

SM0760

service of this notice, unless the parties otherwise agree or the court otherwise orders for good

cause shown.

DATED February 17,2015,

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M. Lovejoy, WSBA No. 36962


awrence 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
jlovejoy@cableJang.com
lrc@cablelang.com

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PLAINTIFFS' NOTICE OF INTENT TO ISSUE SUBPOENAS
DUCES TECUM- 2
[CASE NO. 14-2-07669-0 SEA]

CABLE, LANGENBACH,
KINERK & BAUER, LLP

1000 SECOND AVENUE, SUITE 3500


SEATTLE. WASHINGTON 98104-1048
(206) 2928800

SM0761

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CERTIFICATE OF SERVICE
I hereby certify that on February 17,2015, I caused service of the foregoing on the party
of record as stated below pursuant to an Electronic Service Agreement:
VIA ELECTRONIC MAIL:

Susan E. Foster
Kathleen M. O'Sullivan
Katherine G. Galipeau
Judith B. Jennison
PERKINS COlE LLP
Counsel for Zillow, Inc.

Clemens H. Barnes
Estera Gordon
Daniel Oates
MILLER NASH GRAHAM & DUNN, LLP
Counselfor Errol Samuelson

I declare under penalty ofpeIjury under the laws of the State of Washington that the
foregoing is true and correct.
DATED at Seattle, Washington on February 17,2015.

lsi 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' NOTICE OF INTENT TO ISSUE SUBPOENAS
DUCES TECUM- 3
[CASE NO. 14-2-07669-0 SEA]

CABLE, LANGENBACH,
KINERK & BAUER, LLP
1000 SECOND AVENUE. SUITE 3500
SEATTLE, WASHINGTON 98104~1048

(206) 292-8800

SM0762

SUPERIOR COURT FOR THE STATE OF WASHINGTON


KING COUNTY
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,

Case No. 14-2-07669-0 SEA

SUBPOENA DUCES TECUM DIRECTED


TO THE GOLDMAN SACHS GROUP,
INC.

Plaintiffs,
vs.
ZILLOW, INC., a Washington corporation,
and ERROL SAMUELSON, an individual,
Defendants.

TO:

The Goldman Sachs Group, Inc., 719 Second Avenue, Suite 1300, Seattie, Washington
98104

YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the
taking of a deposition in the above case.

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall
designate one or more officers, directors, or managing agents, or other persons who consent to testify
on its behalf, and may set forth, for each person designated, the matters on which the person will
testify. CR 30(bX6).

PLACE OF DEPOSITION

DATE AND TIME

0" YOU ARE COMMANDED to produce and permit inspection and copying of the following
documents or tangible things at the place, date, and time specified below (list documents or objects):

See attached Exhibit A

SM0763

PLACE

DATE AND TIME

Cable, Langenbach, Kinerk & Bauer, LLP


1000 Second Avenue, Suite 3500
Seattle, WA 98104

March 16,2015 at 10:00 a.m.

IGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR

/?:J-Y'"
UING

DATE

February 24, 2015


,Attome for Plaintiffs

leER'S NAME, ADDRESS AND PHONE NUMBER

Jack M. Lovejoy, 1000 Second Avenue, Suite 3500, Seattle, WA 98104, (206) 292-8800

PROOF OF SERVICE
DATE

PLACE

SERVED
SERVED ON (PRINT NAME)

MANNER OF SERVICE

SERVED BY (PRINT NAME)

TITLE

DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the State of Washington that the foregoing
information contained in the Proof of Service is true and correct.

===-=,---___

Executed on _ _ _ _

DATE/PLACE

SIGNATURE OF SERVER

ADDRESS OF SERVER

SM0764

CR 45, Sections (c) & (d):


(c) Protection of Persons Subject to Subpoenas.
(1) A party or an attorney responsible for the issuance and service
of a subpoena shall take reasonable steps to avoid imposing undue
burden or expense on a person subject to that subpoena. The court
shall enforce this duty and impose upon the party or attorney in
breach of this duty an appropriate sanction, which may include,
but is not limited to, lost earnings and a reasonable attorney's fee.

(1) A person responding to a subpoena to produce


documents shall produce them as they are kept in the
usual course of business or shall organize and label them
to correspond with the categories in the demand.

(2) (A) When information subject to a subpoena is


withheld on a claim that it is privileged or subject to
protection as trial preparation materials, the claim shall

be made expressly and shall be supported by a


(2)(A) A person commanded to produce and permit inspection
and copying of designated books, papers, documents or tangible
things, or inspection of premises need not appear in person at the
place of
production or inspection unless commanded to appear for
deposition, hearing or trial.

description of the nature of the documents,


communications, or things not produced that is sufficient

to enable the demanding party to contest the claim.


(B) If information produced in response to a subpoena
is subject to a claim of privilege or of protection as trialpreparation material, the person making the claim may

(B) Subject to paragraph (d)(2) of this rule, a person commanded


to produce and permit inspection and copying may, within 14
days after service of subpoena or before the time specified for
compliance if such time is less than 14 days after service, serve
upon the party or attorney designated in the subpoena written

objection to inspection or copying of any or all of the designated


materials or of the premises. If objection is made, the party
serving the subpoena shall not be entitled to inspect and copy the
materials or inspect the premises except pursuant to an order of
the court by which the subpoena was issued. If objection has been
made, the party serving the subpoena may, upon notice to the
person commanded to produce and all other parties, move at any
time for an order to compel the production. Such an order to
compel production shall protect any person who is not a party or
an officer of a party from significant expense resulting from the
inspection and copying commanded.

notify any party that received the information of the


claim and the basis for it. After being notified, a party
must promptly return, sequester, or destroy the
specified information and any copies it has; must not
use or disclose the information until the claim is
resolved; must take reasonable steps to retrieve the

information if the party disclosed it before being


notified; and may promptly present the information in
camera to the court for a determination of the claim.
The person responding to the subpoena must preserve
the information until the claim is resolved.

(3)(A) On timely motion, the. court by which a subpoena was


issued shall quash or modify the subpoena if it:
(i) fails to allow reasonable time for compliance;
(ii) fails to comply with RCW 5.56.010 or subsection (e)(2)
of this rule;
(iii) requires disclosure of privileged or other protected
matter and no exception or waiver applies; or

(iv) subjects a person to undue burden, provided that, the


court may condition denial of the motion upon a requirement that

the subpoenaing party advance the reasonable cost of producing


the books, papers, documents, or tangible things.
(B) If a subpoena
(i)
requires disclosure of a trade secret or other
confidential research, development, or commercial information, or
(ii) requires disclosure of an unretained expert's opinion
or information not describing specific events or occurrences in

dispute and resulting from the expert's study made not at the
request of any party,
the court may, to protect a person subject to or affected by the
subpoena, quash or modify the'subpoena or, if the party in whose
behalf the subpoena is issued shows a substantial need for the
testimony or material that cannot be otherwise met without undue

hardship and assures that the person to whom the subpoena is


addressed will be reasonably compensated, the court may order
appearance or production only upon specified conditions.

(d) Duties In Responding to Subpoena.

SM0765

EXHIBIT A
TO SUBPOENA DUCES TECUM DIRECTED TO TIlE GOLDMAN SACHS GROUP, INC.

Documents to be Produced
I.

All documents related to the TruHa Acquisition.

2.

All communications between You and Zillow, including any representative from Zillow,
that relate in any manner to the TruHa Acquisition.

3.

All communications between You and any other party involved in the TruHa Acquisition,
including, but not limited to, Trulia, Shearman & Sterling LLP, Perkins Coie LLP, IP
Morgan Securities, Qatalyst Partners, Goodwin Procter LLP, and Wilson Sonsini
Goodrich & Rosati.

4.

All documents and communications created by or reviewed by Nick Giovanni, Managing


Director at Goldman Sachs, in connection with the Trulia Acquisition.

5.

The engagement letter between You and Zillow regarding the TruHa Acquisition.

6.

Documents sufficient to show when and how You fIrst learned of Zillow's interest in
potentially acquiring Trulia in 2014.

7.

Documents sufficient to show when You were first retained by Zillow in connection with
the Trulia Acquisition.

S.

All documents generated or received in connection with the TruHa Acquisition that
mention or refer to Move, Inc. and/or Realtor.com.

9.

All documents that discuss any of the reasons why Zillow should proceed with the TruHa
Acquisition.

10.

All documents that discuss, refer to or mention the history of discussions and negotiations
between Zillow and Trulia leading to the Trulia Acquisition.

II.

All documents that constitute or refer to any letters of intent or drafts of letters of intent
related to the TruHa Acquisition.

12.

All documents related to Goldman Sachs' analyses of the Trulia Acquisition.

2336782.1

SM0766

13.

All financial models created by Goldman Sachs in connection with the Trulia
Acquisition.

14.

All valuations ofZillow, Trulia, Move, or of any possible mergers of those any of those
companies, both before and after the TruHa Acquisition, that Goldman Sachs generated in
connection with the TruHa Acquisition.

15.

Any strategy memoranda that Goldman Sachs created or reviewed in connection with the
TruHa Acquisition.

16.

Any analyses of the relative market positions of Zillow, TruHa, Move, or of any possible
mergers of any of the those companies, both before and after the TruHa Acquisition, that
Goldman Sachs generated for Zillow at any time.

17.

Documents sufficient to show the date, place, and attendees of all meetings regarding the
TruHa Acquisition that were held between Goldman Sachs and TruHa or any of TruHa's
advisors on the TruHa Acquisition, including but not limited to IP Morgan Securities,
Qatalyst Partners, Goodwin Procter LLP, and Wilson Sonsini Goodrich & Rosati.

I S.

Any notes, minutes, or memoranda related to any meetings or negotiations related to the
Trulia Acquisition.

19.

All documents relating in any way to the premise that Zillow should acquire Trulia as a
defensive measure against a potential transaction involving Move and Trulia.

20.

All documents and communications related to any advice, recommendations, or analysis


that You provided to Zillow regarding a possible or actual acquisition of Retsly.

21.

All documents and communications created by or reviewed by Kyle McCoy, and any
advice, recommendations, or analyses that he provided to Zillow regarding Retsly.

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2336782.1

SM0767

DEFINITIONS

I.

"You" and "Goldman Sachs" means The Goldman Sachs Group, Inc.

2.

"Communication" shall mean any transmission of information, the

information transmitted and any process by which information is transmitted, and shall
include written communications and oral communications.
3.

"Document" means any tangible materials, electronically stored information,

and other information stored in any form; any written, recorded, electronically or digitally
stored, graphic matter, however produced or reproduced; and copies and drafts thereof.
Without limiting the foregoing, plaintiff intends the term "document" to mean any form of
information within the scope and definition of Washington Civil Rule 34, and includes the
following items within your possession, subject to your control, or of which you have
knowledge: correspondence; telegrams; memoranda; reports; notes; drafts; minutes;
contracts; agreements; books; records; vouchers; invoices; diaries; logs; calendar notes;
computer print-outs; e-mails; text messages; back-up materials of any kind; card files; press
clippings; newspapers or newsletters; sworn or unsworn statements of employees; lists;
audits; tables of organization; deposit slips; monthly or other periodic statements; ledgers;
journals; notices; affidavits; court papers; appointment books; minutes or records of
conferences or telephone calls; brochures; receipts; written reports or opinions of
investigators or experts; status reports; drawings; charts; photographs; negatives; tape
recordings; electronic mail; computer file on a hard drive or RAM, floppy disk, CD-ROM,
DVD, or other magnetic or optical storage medium.
4. "Retsly" means "Retsly Software, Inc."
5. "Trulia" means Trulia, Inc.

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2336782.1

SM0768

6. "TruliaAcquisition" means Zillow's acquisition of Trulia, which was publica11y announced


on July 28, 2014.
7. "Zillow" means "Zillow, Inc."

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2336782.1

SM0769

SUPERIOR COURT FOR THE STATE OF WASHINGTON


KING COUNTY
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,

Case No. 14-2-07669-0 SEA

SUBPOENA DUCES TECUM DIRECTED


TO J.P. MORGAN SECURITIES LLC

Plaintiffs,
vs.
ZILLOW, INC., a Washington corporation,
and ERROL SAMUELSON, an individual,
Defendants.

TO:

J.P. Morgan Securities LLC, 10500 NE 8th Street, Suite 825, Bellevue, Washington 98004

YOU ARE COMMANDED to appear at the place, date, and time specified below to testifY at the
taking of a deposition in the above case.
D

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall
designate one or more officers, directors, or managing agents, or other persons who consent to testifY
on its behalf, and may set forth, for each person designated, the matters on which the person will
testifY. CR 30(b)(6).

I PLACE OF DEPOSITION

I DATE AND TIME

YOU ARE COMMANDED to produce arid permit inspection and copying of the following
documents or tangible things at the place, date, and time specified below (list documents or objects):
See attached Exhibit A

SMono

PLACE

DATE AND TIME

Cable, Langenbach, Kinerk & Bauer, LLP


1000 Second Avenue, Suite 3500
Seattle, WA 98104

March 16, 2015 at 10:00 a.m.

February 24, 2015

M. Lovejoy, 1000 Second Avenue, Suite 3500, Seattle, WA 98104, (206) 292-8800

PROOF OF SERVICE
DATE

PLACE

SERVED
SERVED ON (PRINT NAME)

MANNER OF SERVICE

SERVED BY (PRINT NAME)

TITLE

DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the State of Washington that the foregoing
information contained in the Proof of Service is true and correct.

---,==;;:;-=,---__---'-

Executed on _ _ _

DATE/PLACE

SIGNATURE OF SERVER

ADDRESS OF SERVER

SM0771

CR 45, Sections (c) & (d):


(c) Protection of Persons Subject to Subpoenas.

(1) A party or an attorney responsible for the issuance and service


of a subpoena shall take reasonable steps to avoid imposing undue
burden or expense on a person subject to that subpoena. The court
shall enforce this duty and impose upon the party or attorney in
breach of this duty an appropriate sanction, which may include,
but is not limited to, lost earnings and a reasonable attorney's fee.
(2)(A) A person commanded to produce and permit inspection
and copying of designated books, papers, documents or tangible
things, or inspection of premises need not appear in person at the
place of
production or inspection unless commanded to appear for
deposition, hearing or trial.

(B) Subject to paragraph (d)(2) of this rule, a person commanded


to produce and permit inspection and copying may, within 14
days after service of subpoena or before the time specified for
compliance if such time is less than 14 days after service, serve
upon the party or attorney designated in the subpoena written
objection to inspection or copying of any or all of the designated
materials or of the premises. If objection is made, the party
serving the subpoena shall not be entitled to inspect and copy the
materials or inspect the premises except pursuant to an order of
the court by which the subpoena was issued. If objection has been
made, the party serving the subpoena may, upon notice to the
person commanded to produce and all other parties, move at any
time for an order to compel the production. Such an order to
compel production shall protect any person who is not a party or
an officer of a party from significant expense resulting from the
inspection and copying commanded.

(1) A person responding to a subpoena to produce


documents shall produce them as they are kept in the
usual course of business or shall organize and label them
to correspond with the categories in the demand.

(2) (A) When information subject to a subpoena is


withheld on a claim that it is privileged or subject to
protection as trial preparation materials, the claim shall
be made expressly and shall be supported by a
description of the nature of the documents,
communications, or things not produced that is sufficient
to enable the demanding party to contest the claim.

(B) If information produced in response to a subpoena


is subject to a claim of privilege or of protection as trialpreparation material, the person making the claim may
notify any party that received the information of the
claim and the basis for it. After being notified, a party
must promptly return, sequester, or destroy the
specified information and any copies it has; must not
use or disclose the information until the claim is
resolved; must take reasonable steps to retrieve the
information if the party disclosed it before being
notified; and may promptly present the information in
camera to the court for a determination of the claim.
The person responding to the subpoena must preserve
the information until the claim is resolved.

(3)(A) On timely motion, the court by which a subpoena was


issued shall quash or modify the subpoena if it:
(i) fails to allow reasonable time for compliance;
(ii) fails to comply with RCW 5.56.010 or subsection (e)(2)
of this rule;
(iii) requires disclosure of privileged or other protected
matter and no exception or waiver applies; or
(iv) subjects a person to undue burden, provided that, the
court may condition denial of the motion upon a requirement that
the subpoenaing party advance the reasonable cost of producing
the books, papers, documents, or tangible things.
(B) If a subpoena
(i)
requires disclosure of a trade secret or other
confidential research, development, or commercial information, or
(ii) requires disclosure of an unretained expert's opinion
or information not describing specific events or occurrences in
dispute and resulting from the expert's study made not at the
request of any party,
the court may, to protect a person subject to or affected by the
subpoena, quash or modify the subpoena or, if the party in whose
behalf the subpoena is issued, shows a substantial need for the
testimony or material that cannot be otherwise met without undue
hardship and assures that the person to whom the subpoena is
addressed will be reasonably compensated, the court may order
appearance or production only upon specified conditions.
(d) Duties In Responding to Subpoena.

SM0772

EXHIBIT A
TO SUBPOENA DUCES TECUM DIRECTED TO J.P. MORGAN SECURITIES LLC
Documents to be Produced

1.

All documents related to the Trulia Acquisition.

2.

All communications between You and Trulia, including any representative from Trulia,
that relate in any manner to the Trulia Acquisition.

3.

All communications between You and any other party involved in the Trulia Acquisition,
including, but not limited to, Zillow, Goldman Sachs, Shearman & Sterling LLP, Perkins
Coie LLP, Qatalyst Partners, Goodwin Procter LLP, and Wilson Sonsini Goodrich &
Rosati.

4.

All documents related to any discussions between Trulia and Move regarding a potential
merger, acquisition or other transaction between Trulia or Move for the period 2013
through 2014.

5.

The engagement letter between You and Trulia regarding the Trulia Acquisition.

6.

Documents sufficient to show when and how You first learned of Zillow's interest in
potentially acquiring TruHa in 2014.

7.

Documents sufficient to show when You first learned of Trulia' s interest in a potential
transaction with Move.

8.

All documents that constitute or refer to any letters of intent or drafts of letters of intent
related to the TruHa Acquisition.

9.

Documents sufficient to show when You were first retained by Trulia in connection with
the Trulia Acquisition.

10.

All documents generated or received in connection with the Trulia Acquisition that
mention or refer to Move, Inc. and/or Realtor.com.

11.

All documents that discuss any of the reasons why Trulia should proceed with the TruHa
Acquisition.

2337262.1

SM0773

12.

All documents that discuss the reason(s) why Trulia should not proceed with an
acquisition of Move.

13.

All documents discussing or referring to the effect of the Trulia Acquisition on Move.

14.

All documents that discuss, refer to or mention the history of discussions and negotiations
between Zillow and Trulia leading to the Trulia Acquisition.

15.

All documents related to J.P. Morgan's analyses of the Trulia Acquisition.

16.

All financial models or analyses created by J.P. Morgan in connection with the Trulia
Acquisition.

17.

All valuations of Zillow, Trulia, Move, or of any possible mergers of any of those
companies, both before and after the TruHa Acquisition, that J.P. Morgan generated in
connection with the Trulia Acquisition.

18.

Any strategy memoranda that J.P. Morgan created or reviewed in connection with the
Trulia Acquisition.

19.

Any analyses of the relative market positions of Zillow, Trulia, Move, or of any possible
mergers of any of those companies, both before and after the Trulia Acquisition, that J.P.
Morgan generated for Trulia at any time.

20.

Documents sufficient to show the date, place, and attendees of all meetings regarding the
Trulia Acquisition that were held between J.P. Morgan and Zillow or any ofZillow's
advisors on the Trulia Acquisition, including but not limited to Goldman Sachs,
Shearman & Sterling LLP, and Perkins Coie LLP.

21.

Any notes, minutes, or memoranda related to any meetings or negotiations related to the
Trulia Acquisition in which J.P. Morgan participated.

22.

All documents that relate to Move's discussions with Trulia regarding a potential
acquisition or merger between Trulia and Move.

23.

All documents related to J.P. Morgan's analyses ofa potential Trulia and Move
acquisition or merger.

2
2337262.1

SM0774

24.

All notes, minutes, or memoranda related to any meetings or negotiations related to


Move's discussions with Trulia regarding a potential acquisition or merger between
Trulia and Move.
DEFINITIONS

1.

"You" and "J.P. Morgan" means J.P. Morgan Securities LLC.

2.

"Communication" shall mean any transmission of information, the information

transmitted and any process by which information is transmitted, and shall include
written communications and oral communications.
3.

"Document" means any tangible materials, electronically stored information, and

other information stored in any form; any written, recorded, electronically or digitally
stored, graphic matter, however produced or reproduced; and copies and drafts thereof.
Without limiting the foregoing, plaintiff intends the term "document" to mean any form of
information within the scope and definition of Washington Civil Rule 34, and includes the
following items within your possession, subject to your control, or of which you have
knowledge: correspondence; telegrams; memoranda; reports; notes; drafts; minutes;
contracts; agreements; books; records; vouchers; invoices; diaries; logs; calendar notes;
computer print-outs; e-mails; text messages; back-up materials of any kind; card files; press
clippings; newspapers or newsletters; sworn or unsworn statements of employees; lists;
audits; tables of organization; deposit slips; monthly or other periodic statements; ledgers;
journals; notices; affidavits; court papers; appointment books; minutes or records of
conferences or telephone calls; brochures; receipts; written reports or opinions of
investigators or experts; status reports; drawings; charts; photographs; negatives; tape

3
2337262.1

SM0775

recordings; electronic mail; computer file on a hard drive or RAM, floppy disk, CD-ROM,
DVD, or other magnetic or optical storage medium.
4.

"Goldman Sachs" means "The Goldman Sachs Group, Inc."

5.

"Move'~

6.

"Trulia" means Trulia, Inc.

7.

"Trulia Acquisition" means Zillow's acquisition of Trulia, which was publically

means "Move, Inc."

announced on July 28,2014.


8.

"Zillow" means "Zillow, Inc."

4
2337262.1

SM0776

SUPERIOR COURT FOR THE STATE OF WASHINGTON


KING COUNTY
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,

Case No. 14-2-07669-0 SEA

SUBPOENA DUCES TECUM DIRECTED


TO THE GOLDMAN SACHS GROUP,
INC.

Plaintiffs,
vs.
ZILLOW, INC., a Washington corporation,
and ERROL SAMUELSON, an individual,
Defendants.

TO:

The Goldman Sachs Group, Inc., 719 Second Avenue, Suite 1300, Seattie, Washington
98104

YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the
taking of a deposition in the above case.

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall
designate one or more officers, directors, or managing agents, or other persons who consent to testify
on its behalf, and may set forth, for each person designated, the matters on which the person will
testify. CR 30(bX6).

PLACE OF DEPOSITION

DATE AND TIME

0" YOU ARE COMMANDED to produce and permit inspection and copying of the following
documents or tangible things at the place, date, and time specified below (list documents or objects):

See attached Exhibit A

SM0777

PLACE

DATE AND TIME

Cable, Langenbach, Kinerk & Bauer, LLP


1000 Second Avenue, Suite 3500
Seattle, WA 98104

March 16,2015 at 10:00 a.m.

IGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR

/?:J-Y'"
UING

DATE

February 24, 2015


,Attome for Plaintiffs

leER'S NAME, ADDRESS AND PHONE NUMBER

Jack M. Lovejoy, 1000 Second Avenue, Suite 3500, Seattle, WA 98104, (206) 292-8800

PROOF OF SERVICE
DATE

PLACE

SERVED
SERVED ON (PRINT NAME)

MANNER OF SERVICE

SERVED BY (PRINT NAME)

TITLE

DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the State of Washington that the foregoing
information contained in the Proof of Service is true and correct.

===-=,---___

Executed on _ _ _ _

DATE/PLACE

SIGNATURE OF SERVER

ADDRESS OF SERVER

SM0778

CR 45, Sections (c) & (d):


(c) Protection of Persons Subject to Subpoenas.
(1) A party or an attorney responsible for the issuance and service
of a subpoena shall take reasonable steps to avoid imposing undue
burden or expense on a person subject to that subpoena. The court
shall enforce this duty and impose upon the party or attorney in
breach of this duty an appropriate sanction, which may include,
but is not limited to, lost earnings and a reasonable attorney's fee.

(1) A person responding to a subpoena to produce


documents shall produce them as they are kept in the
usual course of business or shall organize and label them
to correspond with the categories in the demand.

(2) (A) When information subject to a subpoena is


withheld on a claim that it is privileged or subject to
protection as trial preparation materials, the claim shall

be made expressly and shall be supported by a


(2)(A) A person commanded to produce and permit inspection
and copying of designated books, papers, documents or tangible
things, or inspection of premises need not appear in person at the
place of
production or inspection unless commanded to appear for
deposition, hearing or trial.

description of the nature of the documents,


communications, or things not produced that is sufficient

to enable the demanding party to contest the claim.


(B) If information produced in response to a subpoena
is subject to a claim of privilege or of protection as trialpreparation material, the person making the claim may

(B) Subject to paragraph (d)(2) of this rule, a person commanded


to produce and permit inspection and copying may, within 14
days after service of subpoena or before the time specified for
compliance if such time is less than 14 days after service, serve
upon the party or attorney designated in the subpoena written

objection to inspection or copying of any or all of the designated


materials or of the premises. If objection is made, the party
serving the subpoena shall not be entitled to inspect and copy the
materials or inspect the premises except pursuant to an order of
the court by which the subpoena was issued. If objection has been
made, the party serving the subpoena may, upon notice to the
person commanded to produce and all other parties, move at any
time for an order to compel the production. Such an order to
compel production shall protect any person who is not a party or
an officer of a party from significant expense resulting from the
inspection and copying commanded.

notify any party that received the information of the


claim and the basis for it. After being notified, a party
must promptly return, sequester, or destroy the
specified information and any copies it has; must not
use or disclose the information until the claim is
resolved; must take reasonable steps to retrieve the

information if the party disclosed it before being


notified; and may promptly present the information in
camera to the court for a determination of the claim.
The person responding to the subpoena must preserve
the information until the claim is resolved.

(3)(A) On timely motion, the. court by which a subpoena was


issued shall quash or modify the subpoena if it:
(i) fails to allow reasonable time for compliance;
(ii) fails to comply with RCW 5.56.010 or subsection (e)(2)
of this rule;
(iii) requires disclosure of privileged or other protected
matter and no exception or waiver applies; or

(iv) subjects a person to undue burden, provided that, the


court may condition denial of the motion upon a requirement that

the subpoenaing party advance the reasonable cost of producing


the books, papers, documents, or tangible things.
(B) If a subpoena
(i)
requires disclosure of a trade secret or other
confidential research, development, or commercial information, or
(ii) requires disclosure of an unretained expert's opinion
or information not describing specific events or occurrences in

dispute and resulting from the expert's study made not at the
request of any party,
the court may, to protect a person subject to or affected by the
subpoena, quash or modify the'subpoena or, if the party in whose
behalf the subpoena is issued shows a substantial need for the
testimony or material that cannot be otherwise met without undue

hardship and assures that the person to whom the subpoena is


addressed will be reasonably compensated, the court may order
appearance or production only upon specified conditions.

(d) Duties In Responding to Subpoena.

SM0779

EXHIBIT A
TO SUBPOENA DUCES TECUM DIRECTED TO TIlE GOLDMAN SACHS GROUP, INC.

Documents to be Produced
I.

All documents related to the TruHa Acquisition.

2.

All communications between You and Zillow, including any representative from Zillow,
that relate in any manner to the TruHa Acquisition.

3.

All communications between You and any other party involved in the TruHa Acquisition,
including, but not limited to, Trulia, Shearman & Sterling LLP, Perkins Coie LLP, IP
Morgan Securities, Qatalyst Partners, Goodwin Procter LLP, and Wilson Sonsini
Goodrich & Rosati.

4.

All documents and communications created by or reviewed by Nick Giovanni, Managing


Director at Goldman Sachs, in connection with the Trulia Acquisition.

5.

The engagement letter between You and Zillow regarding the TruHa Acquisition.

6.

Documents sufficient to show when and how You fIrst learned of Zillow's interest in
potentially acquiring Trulia in 2014.

7.

Documents sufficient to show when You were first retained by Zillow in connection with
the Trulia Acquisition.

S.

All documents generated or received in connection with the TruHa Acquisition that
mention or refer to Move, Inc. and/or Realtor.com.

9.

All documents that discuss any of the reasons why Zillow should proceed with the TruHa
Acquisition.

10.

All documents that discuss, refer to or mention the history of discussions and negotiations
between Zillow and Trulia leading to the Trulia Acquisition.

II.

All documents that constitute or refer to any letters of intent or drafts of letters of intent
related to the TruHa Acquisition.

12.

All documents related to Goldman Sachs' analyses of the Trulia Acquisition.

2336782.1

SM0780

13.

All financial models created by Goldman Sachs in connection with the Trulia
Acquisition.

14.

All valuations ofZillow, Trulia, Move, or of any possible mergers of those any of those
companies, both before and after the TruHa Acquisition, that Goldman Sachs generated in
connection with the TruHa Acquisition.

15.

Any strategy memoranda that Goldman Sachs created or reviewed in connection with the
TruHa Acquisition.

16.

Any analyses of the relative market positions of Zillow, TruHa, Move, or of any possible
mergers of any of the those companies, both before and after the TruHa Acquisition, that
Goldman Sachs generated for Zillow at any time.

17.

Documents sufficient to show the date, place, and attendees of all meetings regarding the
TruHa Acquisition that were held between Goldman Sachs and TruHa or any of TruHa's
advisors on the TruHa Acquisition, including but not limited to IP Morgan Securities,
Qatalyst Partners, Goodwin Procter LLP, and Wilson Sonsini Goodrich & Rosati.

I S.

Any notes, minutes, or memoranda related to any meetings or negotiations related to the
Trulia Acquisition.

19.

All documents relating in any way to the premise that Zillow should acquire Trulia as a
defensive measure against a potential transaction involving Move and Trulia.

20.

All documents and communications related to any advice, recommendations, or analysis


that You provided to Zillow regarding a possible or actual acquisition of Retsly.

21.

All documents and communications created by or reviewed by Kyle McCoy, and any
advice, recommendations, or analyses that he provided to Zillow regarding Retsly.

2
2336782.1

SM0781

DEFINITIONS

I.

"You" and "Goldman Sachs" means The Goldman Sachs Group, Inc.

2.

"Communication" shall mean any transmission of information, the

information transmitted and any process by which information is transmitted, and shall
include written communications and oral communications.
3.

"Document" means any tangible materials, electronically stored information,

and other information stored in any form; any written, recorded, electronically or digitally
stored, graphic matter, however produced or reproduced; and copies and drafts thereof.
Without limiting the foregoing, plaintiff intends the term "document" to mean any form of
information within the scope and definition of Washington Civil Rule 34, and includes the
following items within your possession, subject to your control, or of which you have
knowledge: correspondence; telegrams; memoranda; reports; notes; drafts; minutes;
contracts; agreements; books; records; vouchers; invoices; diaries; logs; calendar notes;
computer print-outs; e-mails; text messages; back-up materials of any kind; card files; press
clippings; newspapers or newsletters; sworn or unsworn statements of employees; lists;
audits; tables of organization; deposit slips; monthly or other periodic statements; ledgers;
journals; notices; affidavits; court papers; appointment books; minutes or records of
conferences or telephone calls; brochures; receipts; written reports or opinions of
investigators or experts; status reports; drawings; charts; photographs; negatives; tape
recordings; electronic mail; computer file on a hard drive or RAM, floppy disk, CD-ROM,
DVD, or other magnetic or optical storage medium.
4. "Retsly" means "Retsly Software, Inc."
5. "Trulia" means Trulia, Inc.

3
2336782.1

SM0782

6. "TruliaAcquisition" means Zillow's acquisition of Trulia, which was publica11y announced


on July 28, 2014.
7. "Zillow" means "Zillow, Inc."

4
2336782.1

SM0783

EXHIBITB

SM0784

i?"ZiIIOW'GROUP
July 28, 2014

Zillow Announces Acquisition of Trulia for $3.5 Billion in Stock


Combination of companies sets stage to offer more real estate tools and services that empower
consumers and drive more business for real estate professionals
SEATILE and SAN FRANCISCO, July 28 , 2014 I PRNewswirel -- Zillow, Inc. (NASDAQ: Z) today announced that it has entered
into a definitive agreement to acquire Trulia, Inc. (NYSE: TRLA) for $3.5 billion in a stock-for-stock transaction. The Boards of
Directors of both companies have approved the transaction , which is expected to close in 2015.
The combined company will maintain both the Zillow and Trulia consumer brands , offering buyers , sellers , homeowners and
renters access to vital information about homes and real estate for free , and providing advertising and software solutions that
help real estate professionals grow their business. At closing , Trulia CEO Pete Flint will remain as CEO of Trulia reporting to
Zillow CEO, Spencer Rascoff, and will join the Board of Directors of the combined company. In addition , at closing, a second
member of Trulia's Board of Directors will join the board of the combined company. Further operational and organizational
details will be announced at closing.
"Consumers love using Zillow and Trulia to find vital information about homes and connect with the best local real estate
professionals," Rascoff said. "Both companies have been enormously successful in creating compelling consumer brands and
deep industry partnerships, but it's still early days in the world of real estate advertising on mobile and Web. This is a
tremendous opportunity to combine our resources and achieve even more impressive innovation that will benefit consumers
and the real estate industry."
"Trulia and Zillow have a shared mission and vision of empowering consumers while helping real estate agents , brokerages
and franchisors benefit from technological innovation," said Flint. "By working together, we will be able to create even more
value for home buyers , sellers , and renters , as well as create a robust marketing platform that will help our industry partners
connect with potential clients and grow their businesses even more efficiently. Our two companies share complementary
employee cultures with innovative , consumer-first philosophies and a deep commitment to create the best products and
services for our industry partners."
Both Zillow and Trulia are primarily media companies, generating the majority of revenue through advertising sales to real
estate professionals. Despite continued growth as public companies , significant opportunities of scale remain as the majority of
advertising dollars in the real estate sector have yet to migrate online or to mobile. For example , the two companies' combined
revenue currently represents less than 4 percent of the estimated $12 billion[i] real estate professionals spend on marketing
their services to consumers each year.
Zillow and Trulia are two rapidly growing real estate sites on mobile and the Web , enabling advertisers to reach a large and
expanding consumer base. In June, Zillow reported a record 83 million unique users across mobile and Web[ii]. For the same
month , Trulia reported a record 54 million monthly unique users across its sites and mobile apps[iii]. The two brands have
limited consumer overlap - approximately half of Trulia.com's monthly visitors do not visit Zillow.com , and approximately twothirds of Zillow.com's monthly visitors across all devices do not use Trulia.com [iv]. Maintaining the two distinct consumer brands
will allow the combined company to continue to offer differentiated products and user experiences, attract more users and
maximize the distribution of free content across multiple platforms , apps and channels.
A summary of expected benefits of the deal, include:

Faster Innovation. By combining resources , the companies expect to accelerate innovation on mobile and Web to
provide more valuable tools and services to consumers and professionals.

Greater Access to Free Real Estate Market Data. The companies expect to share real estate market data, housing
trend analysis, and forecasts to make more free data available to consumers and real estate professionals to empower
people to make more informed decisions.
Broader Distribution. Home sellers and their agents , brokerages , and participating MLSs will benefit from seamless
free distribution of listings across even more platforms to reach an even larger audience of consumers.
Enhanced Value and ROI for Advertisers. The companies expect to offer shared services and marketing platforms
for advertisers that enhance agent productivity and marketing and deliver greater return on their investment.
Corporate Cost Savings. By operating independent consumer brands through one corporation, the companies expect
to realize synergies to improve overall operational efficiency over the long-term. By 2016, management expects to
achieve at least $100 million in annualized cost avoidances.

SM0785

Transaction Details
As part of the agreement , Trulia shareholders will receive 0.444 shares of Class A Common Stock of Zillow, Inc.[v] for each
share of Trulia, and will own approximately 33% of the combined company at closing. Current Zillow holders of Class A
Common Stock and Class B Common Stock will receive one comparable share of the combined company at closing , and will
represent approximately 67% of the combined company. The transaction assumes Trulia's convertible notes will be assumed
by the combined company at closing. The value of the deal represents a premium of 25% to Trulia's closing price on July 25,
2014.
The agreement is subject to the satisfaction of customary closing conditions, including the expiration of U.S. antitrust waiting
periods and shareholder approval of both companies. Zillow co-founders Rich Barton and Lloyd Frink, who control a majority of
the shareholder voting power of Zillow, have agreed to vote in favor of the transaction. In addition , Trulia directors holding 7.4%
of Trulia stock have entered into voting agreements with Zillow to vote in favor of the transaction.
Representation
Goldman, Sachs & Co. acted as the exclusive financial advisor, and Shearman & Sterling LLP and Perkins Coie LLP acted as
legal counsel to Zillow. J.P. Morgan Securities LLC acted as a financial advisor, and Goodwin Procter LLP and Wilson Sonsini
Goodrich & Rosati acted as legal counsel to Trulia. Qatalyst Partners LP also acted as a financial advisor to Trulia.
Conference Call to Discuss Acquisition at 9 a.m. EDT 1 6 a.m. PDT
Zillow CEO Spencer Rascoff will host a conference call today with Trulia CEO Pete Flint at 9:00 a.m. EDT 16:00 a.m. PDT. The
live webcast of the conference call will be available on the investor relations section of Zillow, Inc.'s website
at http ://investors.zillow.com/, or on the investor relations section of Trulia, Inc's website at http://ir.trulia.com/ . For those without
access to the Internet, the call may be accessed toll-free via phone at 877-643-7152 with conference ID# 80954780. Callers
outside the United States may dial 443-863-7921 with conference ID# 80954780. Following completion of the call , a recorded
replay of the webcast and a copy of the prepared remarks will be available on the investor relations section of Zillow, Inc.'s and
Trulia.com's websites for one year.
Company Conference Calls for Quarterly Earnings
The companies will host separate conference calls to discuss each company's second quarter results. The calls will be held on
the following dates:
Trulia: July 31, 2014, at5 p.m. EDT 1 2 p.m. PDT. The call details will be available announced separately , and will be
available on Trulia's investor relations website at ir.trulia.com .
Zillow: August 5, 2014 at5 p.m. EDT 1 2 p.m. PDT. The call details will be announced separately, and will available on
Zillow's investor relations website at investors.zillow.com .
Forward-Looking Statements
This press release contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and
Section 21 E of the Securities Exchange Act of 1934 that involve risks and uncertainties , including , without limitation , statements
regarding Zillow's proposed acquisition of Trulia and the expected benefits of the transaction ; operational and organizational
details of the combined company ; the way in which the transaction will impact consumers , real estate professionals , and
industry partners ; the ability of the combined company to innovate ; our ability to realize opportunities of scale ; the migration of
advertising dollars in the real estate sector to online and mobile ; the growth rate of Zillow and Trulia ; and our ability to deliver
greater return on investment to our advertisers. Statements containing words such as "may ," "believe ," "anticipate," "expect ,"
"intend ," "plan ," "project," "will ," "projections ," "estimate ," or similar expressions constitute forward-looking statements. Such
forward-looking statements are subject to significant risks and uncertainties and actual results may differ materially from the
results anticipated in the forward-looking statements. Factors that may contribute to such differences include , but are not
limited to , the risk that expected cost savings or other synergies from the transaction may not be fully realized or may take
longer to realize than expected; the risk that the businesses may not be combined successfully or in a timely and cost-efficient
manner; the possibility that the transaction will not close , including , but not limited to , due to the failure to obtain shareholder
approval or the failure to obtain governmental approval ; and the risk that business disruption relating to the merger may be
greater than expected. The foregoing list of risks and uncertainties is illustrative , but is not exhaustive. Additional factors that
could cause results to differ materially from those anticipated in forward-looking statements can be found under the caption
"Risk Factors" in Zillow's Annual Report on Form 1O-K for the year ended December 31 , 2013, Trulia's Quarterly Report on
Form 1O-Q for the quarterly period ended March 31 , 2014 , and in Zillow's and Trulia's other filings with the Securities and
Exchange Commission. Except as may be required by law, neither Zillow nor Trulia intend, nor undertake any duty, to update
this information to reflect future events or circumstances.

SM0786

Additional Information and Where to Find It


In connection with the proposed transaction , Zillow and Trulia will file a joint proxy statement/prospectus with the Securities and
Exchange Commission , and the new holding company will file a Registration Statement on Form S-4 with the Securities and
Exchange Commission. INVESTORS AND SECURITYHOLDERS ARE URGED TO READ THE REGISTRATION STATEMENT
AND JOINT PROXY STATEMENT/PROSPECTUS (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO)
REGARDING THE PROPOSED TRANSACTION WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN
IMPORTANT INFORMATION. Investors and security holders will be able to obtain free copies of the registration statement and
joint proxy statement/prospectus (when they become available) and other documents filed by Zillow and Trulia at the Securities
and Exchange Commission's web site at www.sec. gov. Copies of the registration statement and joint proxy
statement/prospectus (when they become available) and the filings that will be incorporated by reference therein may also be
obtained, without charge, from Zillow's website, www. zillow.com. under the heading "Investors" in the "About" tab or by
contacting Zillow Investor Relations at (206) 470-7137. These documents may also be obtained, without charge, from Trulia's
website, www. trulia.com. under the tab "Investor Relations" or by contacting Trulia Investor Relations at (415) 400-7238.

Participants in Solicitation
The respective directors and executive officers of Zillow and Trulia and other persons may be deemed to be participants in the
solicitation of proxies in respect of the proposed transaction. Information regarding Zillow's directors and executive officers is
available in its proxy statement filed with the SEC by Zillow on April 17, 2014, and information regarding Trulia's directors and
executive officers is available in its proxy statement filed with the SEC by Trulia on April 22, 2014. Other information regarding
the participants in the proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise,
will be contained in the joint proxy statement/prospectus and other relevant materials to be filed with the SEC (when they
become available). These documents can be obtained free of charge from the sources indicated above.

About Zillow, Inc.


Zillow, Inc. (NASDAQ:Z) operates the leading real estate and home-related information marketplaces on mobile and the Web,
with a complementary portfolio of brands and products that help people find vital information about homes, and connect with
the best local professionals. Zillow's brands serve the fulilifecycle of owning and living in a home: buying , selling , renting ,
financing, remodeling and more. In addition, Zillow offers a suite of tools and services to help local real estate, mortgage, rental
and home improvement professionals manage and market their businesses. Welcoming 83 million unique users in June 2014 ,
the Zillow, Inc. portfolio includes Zillow.com, Zillow Mobile, Zillow Mortgage Marketplace, Zillow Rentals, Zillow Digs,
Postlets, Diverse Solutions, Agentfolio, Mortech, HotPads , StreetEa~and RetslyTM The company is headquartered
in Seattle.
Zillow.com, Zillow, Postlets , Mortech , Diverse Solutions, StreetEasy, Agentfolio and Digs are registered trademarks of Zillow,
Inc. HotPads and Retsly are trademarks of Zillow, Inc.

About Trulia, Inc.


Trulia (NYSE: TRLA) gives home buyers , sellers, renters and real estate professionals all the tools and valuable information
they need to be successful in the home search process. Through its innovative mobile and web products , Trulia provides
engaged home buyers and sellers essential information about the house , the neighborhood and the process while connecting
them with the right agents. For agents, Trulia, together with its MarketLeader subsidiary, provides an end-to-end technology
platform that enables them to find and serve clients, create lasting relationships and build their business. Founded in 2005 ,
Trulia is headquartered in San Francisco with offices in New York, Denver and Seattle. Trulia and the Trulia marker logo are
registered trademarks of Trulia , Inc.
(ZFIN)

Ii] Source: Borrell Associates Real Estate Advertising 2013 Outlook, reflecting combined advertising spent by real estate
agents , home builders , and rental property managers.
Iii] Zillow measures unique users with Google Analytics.
liii] Source: Omniture, Google Analytics, June 2014
liv] Source: comScore Multiplatform Cross-Visiting , June 2014
Iv] Upon closing, shares of Zillow, Inc. and Trulia, Inc. common stock will be exchanged for common stock of a newly formed
holding company.

SM0787

SOURCE Zillow, Inc.


News Provided by Acquire Media

SM0788

EXHIBITC

SM0789

i2>ZiIIOW GROUP
February 17, 2015

Zillow Completes Acquisition of Trulia for $2.5 Billion in Stock; Forms "Zillow Group" Family
of Brands
New parent company houses collection of largest homerelated brands on mobile and Web
SEATILE and SAN FRANCISCO, Feb. 17, 2015 IPRNewswirel -- Zillow, Inc. today announced it has completed its previously
announced acquisition of Trulia, Inc. for $2.5 billion in a stock-for-stock transaction , and formed Zillow Group, Inc. (NASDAQ:Z),
which houses a portfolio of the largest and most vibrant U.S. real estate and home-related brands on mobile and the Web. In
addition to Zillow and Trulia , Zillow Group's consumer brand portfolio includes StreetEasy, New York City's leading real estate
marketplace , and rental search brand HotPads.
"This is a pivotal day in online real estate and we couldn't be more excited to welcome Trulia to Zillow Group ," said Spencer
Rascoff, CEO of Zillow Group. "Each of our brands share a consumer-first philosophy , and our powerful combination of insights
and expertise will drive even greater innovation for consumers , empowering them with essential information they need to make
critical financial decisions. Our combination will also enable real estate professionals to more efficiently and easily reach the
nation's largest audience of engaged buyers , sellers and homeowners , and extract even more value from their advertising."
Paul Levine , previously Trulia's chief operating officer, has been named president of Trulia, reporting to Rascoff. Pete Flint , cofounder and former CEO of Trulia , has joined the Zillow Group board of directors , as has former Trulia board member Greg
Waldorf. Zillow Group is expected to begin trading on Nasdaq on Feb. 18, 2015, under the ticker symbol "Z" and will inherit the
trading history of Zillow Inc. , which also traded under the ticker symbol "Z".
Later this year, Zillow Group expects to begin to offer shared services and marketing platforms for advertisers and industry
partners that will enhance efficiency and deliver greater return on investment. Information about any changes will be
communicated promptly to advertisers and partners.
In connection with the close of the acquisition , the companies eliminated approximately 280 positions , primarily in San
Francisco and Bellevue , Wash. , due primarily to redundancy in the combined company's sales and administrative
organizations. Another 70 positions will be eliminated as of the end of the second quarter, at which time Zillow Group will have
approximately 2,000 employees. The approximately 350 affected employees have already been notified.
Zillow Group intends to provide pro forma financial results for the year ended Dec. 31 , 2014 prior to its first quarter earnings
report, tentatively planned for May 2015. Information about Zillow Group, including media and investor information , can be
found at www.zillowgroup.com . Zillow Group news can also be found at the Twitter handle @ZillowGroup .

Transaction Details
Zillow Group acquired Trulia in a stock-for-stock transaction valued at $2.5 billion , based on the closing price of Zillow stock on
Feb. 17, 2015. As part of the agreement , Trulia stockholders received 0.444 shares of Class A Common Stock of Zillow Group,
Inc. for each share of Trulia Common Stock, and own approximately 33% of the combined company as of closing. Current Zillow
holders of Class A Common Stock and Class B Common Stock received one share of comparable Zillow Group Common Stock,
representing approximately 67% of the newly combined company. Zillow Group now has approximately 70.5 million fully diluted
shares outstanding. Trulia's convertible notes have been assumed by Zillow Group. The acquisition of Trulia was announced
on July 28, 2014, received shareholder and stockholder approval for each company on Dec. 18, 2014 , and Zillow was notified
by the Federal Trade Commission of its assent of the transaction on Feb. 13, 2015.

Conference Call
Zillow Group management will host a conference call to discuss the close of the Trulia acquisition on Feb. 18, 2015. The call
will begin at 6 a.m. Pacific Time (9 a.m. Eastern Time) , and it will also be webcast live. The live webcast of the conference call
will be available on the investor relations section of Zillow Group's website at http://investors.zillowaroup.com/. For those without
access to the Internet , the call may be accessed toll-free via phone at 877-643-7152 with conference 10# 61427387. Callers
outside the United States may dial 443-863-7921 with conference 10# 61427387. Following completion of the call , a recorded
replay of the webcast will be available on the investor relations section of Zillow Group's website at
http://investors.zillowgrou p.co m.

ForwardLooking Statements

SM0790

This press release contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and
Section 21 E of the Securities Exchange Act of 1934 that involve risks and uncertainties , including , without limitation , statements
regarding Zillow's acquisition of Trulia and the expected benefits of the transaction; operational and organizational details of
the combined company; the way in which the transaction will impact consumers, real estate professionals , and industry
partners; the ability of the combined company to innovate ; our ability to realize opportunities of scale; our ability to deliver
greater return on investment to our advertisers; and the expected timing of trading on Nasdaq. Statements containing words
such as "may," "believe," "anticipate," "expect," "intend," "plan," "project," "will," "projections," "estimate," or similar expressions
constitute forward-looking statements. Such forward-looking statements are subject to significant risks and uncertainties and
actual results may differ materially from the results anticipated in the forward-looking statements. Factors that may contribute to
such differences include, but are not limited to , the risk that expected cost savings or other synergies from the transaction may
not be fully realized or may take longer to realize than expected; the risk that the businesses may not be combined successfully
or in a timely and cost-efficient manner; and the risk that business disruption relating to the merger may be greater than
expected. The foregoing list of risks and uncertainties is illustrative , but is not exhaustive. Additional factors that could cause
results to differ materially from those anticipated in forward-looking statements can be found under the caption "Risk Factors"
in Zillow's Annual Report on Form 10-K for the year ended December 31,2014, Trulia's Quarterly Report on Form 10-Q for the
quarterly period ended September 30,2014, and in Zillow's and Trulia's other filings with the Securities and Exchange
Commission. Except as may be required by law, neither Zillow nor Trulia intend , nor undertake any duty , to update this
information to reflect future events or circumstances.

About Zillow Group


Zillow Group (NASDAQ:Z) houses a portfolio of the largest real estate and home-related brands on the Web and mobile. The
company's brands focus on all stages of the home lifecycle: renting , buying, selling, financing and home improvement. Zillow
Group is committed to empowering consumers with unparalleled data, inspiration and knowledge around homes , and
connecting them with the right local professionals to help. The Zillow Group portfolio of consumer brands includes real estate
and rental marketplaces Zillow, Trulia, StreetEasy and HotPads. In addition, Zillow Group works with tens of thousands of
real estate agents, lenders and rental professionals, helping them maximize business opportunities and connect to millions of
consumers. The company operates a number of brands for real estate, rental and mortgage professionals, including Postlets,
Mortech, Diverse Solutions, Market Leader, ActiveRain and RetslyTM The company is headquartered iSeattle.
Zillow, Postlets , Mortech , Diverse Solutions, StreetEasy, and HotPads are registered trademarks of Zillow, Inc. Retsly is a
trademark of Zillow, Inc. Trulia is a registered trademark of Trulia, Inc. Market Leader is a registered trademark of Market
Leader, Inc.
(ZFIN)

To view the original version on PR Newswire, visit http://www.prnewswire.com/news-releases/zillow-completes-acquisition-oftrulia-for-25-billion-in-stock-forms-zillow-group-family-of-brands-300037280.html


SOURCE Zillow, Inc.
News Provided by Acquire Media

SM0791

EXHIBITD

SM0792

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SPECIAL MASTER
THE HONORABLE BRUCE HILYER (RET.)

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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


DECLARATION OF SPENCER RASCOFF
IN SUPPORT OF DEFENDANT ZILLOW,
INC.'S OPPOSITION TO PLAINTIFFS'
MOTION FOR RECONSIDERATION OF
THE SPECIAL MASTER'S JANUARY 26,
2015 SUPPLEMENTAL ORDER (TRULIA
SUBPOENA)

Plaintiffs,

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

I, SPENCER RASCOFF, hereby declare:

RASCOFF DECLARATION RE TRULlA- 1

569200025/LEGAL 125 125801 .3

Perkins Coie LLP


1201 Third Avenue, Suite 4900
Se.nle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

SM0793

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I.

I am Zillow's Chief Executive Officer and a Director. I have personal

knowledge of the facts stated below and am competent to testify regarding the same.
2.

I never discussed a potential acquisition ofTrulia with Errol Samuelson prior

to its announcement and did not even disclose to him our interest in such a transaction until
June 27, 2014. At that time I announced to the Executive Team, of which Mr. Samuelson
was a member, that we were considering an acquisition. Errol did not participate in any of
the Trulia negotiations or due diligence.
3.

Errol Samuelson never disclosed or discussed with me any plans Move may

have had with respect to Trulia and nothing discussed in my conversations or other
communications with Mr. Samuelson influenced my decision to initiate or pursue the
acquisition ofTrulia.

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


foregoing is true and correct.

,this 25th day of February, 2015 .

44
45
46

47
RASCOFF DECLARATION RE TRULIA - 2

56920.()()25/LEGAL 125125801 .3

Perkins Cole LLP


1201 Third Avenue, Suite 4900
Seanle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

SM0794

EXHIBITE

SM0795

SUPERIOR COURT FOR THE STATE OF WASHINGTON


KING COUNTY
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,

Case No. 14-2-07669-0 SEA


SUBPOENA DUCES TECUM DIRECTED
TO RECORDS CUSTODIAN FOR
TRULIA, INC.

Plaintiffs,
vs.
ZILLOW, INC., a Washington corporation,
and ERROL SAMUELSON, an individual,
Defendants.

TO:

TRULIA, INC.
535 Mission Street, Suite 700
San Francisco, CA 94105

Ii"! YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the
taking of a deposition in the above case.
Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall
designate one or more officers, directors, or managing agents, or other persons who consent to testify
on its behalf, and may set forth, for each person designated, the matters on which the person will
testify. CR 30(b)(6).
PLACE OF DEPOSITION

DATE AND TIME

Location TBD in Thurston County

December 23,2014@ 10:00 a.m.

In the alternative:

Ii"! YOU ARE COMMANDED to produce and permit inspection and copying of the following
documents or tangible things, along with a records custodian declaration in the form of Exhibit B, at the
place, date, and time specified below (list documents or objects):
See attached Exhibit A
PLACE

I DATEANDTlME

SM0796

Cable, Langenbach, Kinerk & Bauer, LLP


1000 Second Avenue, Suite 3500
Seattle, WA 98104
ISSUING OFFICER SIGNATURE AND TITLE
DEFEN

~NDICATE

December 22, 2014 @ 10:00 a.ill

IF ATTORNEY FOR PLAINTIFF OR

DATE

December 5, 2014

,Attome for Plaintiffs


RESS AND PHONE NUMBER

oSecond Avenue, Suite 3500, Seattle, W A 98104, (206) 292-8800

PROOF OF SERVICE
DATE

PLACE

SERVED
SERVED ON (PRINT NAME)

MANNER OF SERVICE

SERVED BY (PRINT NAME)

TITLE

DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the State of Washington that the foregoing
information contained in the Proof of Service is true and correct.

Executed on ----.".-,==---,-0=----DATE/PLACE

SIGNATURE OF SERVER

ADDRESS OF SERVER

SM0797

CR 45, Sections (c) & (d):


(c) Protection of Persons Subject to Subpoenas.
(1) A party o r an attorney responsible for the issuance and service
of a subpoena shall take reasonable steps to avoid imposing undue
burden or expense on a person subject to that subpoena. The court
shall enforce this duty and impose upon the party or attorney in
breach of this duty an appropriate sanction, which may include,
but is not limited to, lost earnings and a reasonable attorney's fee.
(2)(A) A person commanded to produce and permit inspection
and copying of designated books, papers, documents or tangible
things, or inspection of premises need not appear in person at the
place of
production or inspection unless commanded to appear for
deposition, hearing or trial.

(B) Subject to paragraph (d)(2) of this rule, a person commanded


to produce and permit inspection and copying may, within 14
days after service of s ubpoena or before the time specified for
compliance if such time is less than 14 days after service, serve
upon the party or attorney designated in the subpoena written
objection to inspection or copying of any or all of the designated
materials Of of the premises. 1 objection is made, the party
serving the subpoena shall not be entitled to inspect and copy the
materials or inspect the premises except pursuant to an order of
the court by which the subpoena was issued. If objection has been
made, the party serving the subpoena may, upon notice to the
person commanded to produce and all other parties, move at any
time for an order to compel the production. Such an order to
compel production shall protect any person who is not a party or
an officer of a party from significant expense resulting from the
inspection and copying commanded.

(1) A person responding to a subpoena to produce


documents shall produce them as they are kept in the
usual course of business or shall organize and label them
to correspond with the categories in the demand.

(2) (A) When information subject to a subpoena is


withheld on a claim that it is privileged or subject to
protection as trial preparation materials~ the claim shall
be made expressly and shall be supported by a
description of the nature of the documents,
communications, or things not produced that is sufficient
to enable the demanding party to contest the claim.

(B) If information produced in response to a subpoena


is subject to a claim of privilege or of protection as trialpreparation material, the person making the claim may
notify any party that received the informatiOn of the
claim and the basis for it. After being notified, a party
must promptly return, sequester~ or destroy the
specified information and any copies it has; must not
use or disclose the information until the claim is
resolvedi must take reasonable steps to retrieve the
information if the party disclosed it before being
notified; and may promptly present the information in
camera to the court for a determination of the claim.
The person responding to the subpoena must preserve
the information until the claim is resolved.

(3)(A) On timely motion, the court by which a subpoena was


issued shall quash or modify the subpoena if it
(i) fails to allow reasonable time for compliancei
(ti) fails to comply with RCW 5.56.000 or s ubsection (e)(2)
of this rule;
(iii) requires disclosure of privileged or other protected
matter and no exception or waiver appliesi or
(iv) subjects a person to undue burden, provided that, the
court may condition denial of the motion upon a reqUirement that
the subpoehaing party advance the reasonable cost of producing
the books, papers, documents, or tangible things.
(B) If a subpoena
(i)
requires disclosure of a trade secret or other
confidential research, development, or commercial infonnation, or
(ii) requires disclosure of an unretained expert's opinion
or information not describing specific events or occurrences in
dispute and resulting from the expert's study made not at the
request of any party,

the court may, to protect a person subject to or affected by the


subpoena, quash or modify the subpoena or, if the party in whose
behalf the subpoena is issued shows a substantial need for the
testimony or material that cannot be otherwise met without undue
hardship and assures that the person to whom the subpoena is
addressed will be reasonably compensated, the court may order
appearance or production only upon specified conditions.
(d) Duties in Responding to Subpoena.

SM0798

- - - - . - - ........

'- ..

-------'--.--.---------~------

EXHIBIT A
TO SUBPOENA DUCES TECUM DIRECTED TO lRULIA, INC.
Documents to be Produced

I. Documents sufficient to describe the 2013 and 2014 compensation package for Alon
Schaver.

2. Documents sufficient to describe the 2013 and 2014 compensation package for Trulia's
head of business to business product lines; if that is someone other than Mr. Schaver.
3. For the time period November 1, 2013 through present, commuoications between Zillow
and TruIia regarding ListHub.
4. Documents, including communications between Zillow and Trulia, sufficient to show the
date on which Zillow and Trulia began discussing their pending merger and Zillow's
stated reasons for the proposed merger.
5. Commuoications between Trulia and Errol Samuelson regarding Trulia's acquisition by
Zillow.
6. Communications between Trulia and Curtis Beardsley regarding Trulia's acquisition by
Zillow.
7. Communications between Trulia and Errol Samuelson regarding Move, Realtor.com, or
ListHub on March 5, 2014 or after.
8. Communications between Trulia and Curtis Beardsley regarding Move, Realtor.com, or
ListHub on March 17,2014 or after.

. SM0799

EXHIBITF

SM0800

HONORABLEJOHNCHUN

3
4
5

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

10

11
12
13

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,

14

17

PLAINTIFFS' SIXTH DISCOVERY


REQUESTS TO DEFENDANT ZILLOW,
INC.

Plaintiffs,

15

16

Case No. 14-2-07669-0 SEA

VS.

ZILLOW, INC., a Washington corporation,


and ERROL SAMUELSON, an individual,
Defendants.

18

19

TO:

Defendant Zillow, Inc.

20

AND TO:

Susan E. Foster, Kathleen M. O'Sullivan, Katherine G. Galipeau, Judith B.


Jennison and Perkins Coie LLP

21
INSTRUcnONS

22
23

24
PLAINTIFFS' SIXTH DISCOVERY REQUESTS TO

DEFENDANT ZILLOW, INC. - 1


23341691

CABLE, LANGENBAOI,
K!NERK &. BAUER, UP
1000 SECOND AVENUE. SUITE3S00
SEATnE, WASHlNGTON 9SI04-I04S
(2()6)

mnoo

SMOB01

Pursuant to the provisions of Rules 26 and 34 of the Civil Rules for Superior Court of the State

of Washington, you are hereby requested to respond to the following discovery requests for within

thiny (30) days after the service hereof. You have been served with the original of these discovery

requests ("requests"). You should respond to each request within the space provided or use

additional pages if necessary. Within the time allowed by the rules, you should serve the original

with your responses on the attorneys for plaintiffs Move, Inc., Realselect, Inc., Top Producer

Systems Company, National Association of Realtors, and Realtors Information Network, Inc.

Under Civil Rule 34 you are requested to produce, and permit plaintiffs Move, Inc., Rea1select,
Inc., Top Producer Systems Company, National Association of Realtors, and Realtors

10

Information Network, Inc.'s attorneys to inspect and copy, the documents hereinafter designated

II

which are in your possession, custody and control, at the offices of Cable, Langenbach, Kinerk &

12

Bauer, LLP, 1000 Second Avenue, Suite 3500, Seattle, Washington 98104-1048, at such time and

13

place as may be agreed upon by the parties.

14
These requests are intended to be continuing in nature. In accordance with the obligation to
15

supplement responses imposed by Civil Rule 26(e), you are asked to provide any information which

16

would materially alter the answers now given at the time you obtain such additional information.

17

Any additional information relating to these requests which you acquire subsequent to the date of

18

your responses, up to and including the time of trial, should be furnished to as supplemental

19

responses promptly after such information is acquired.

20

DEFINITIONS AND PROCEDURES

21

Please respond fully to the following interrogatories as required by Civil Rules 26 and 33.

22

You are to comply with the following definitions and procedures.

23

24
PLAINTIFFS' SlXlH DISCOVERY REQUESTS TO

DEFENDANT Zn..LOW, INC. - 2


23341691

CABLE, LANGENBAOI.
KINERK & BAUER,lLP
1000 SECOND AVENUE. SUITE 3500
SEATTU. WASHINGTON 98104-1048
12061292-1800

SMOB02

DEFINITIONS

I.

"Defendant(s)," "yo"," "your," or "Zillow" means Zillow, Inc.

2.

"Person"

means

natural

persons,

firms,

proprietorships,

associations,

partnerships, corporations and every other type of organization or entity.

3.

"Communication" shall mean any transmission of information, the information

transmitted and any process by which information is transmitted, and shall include written

communications and oral communications.

4.

"Document" means any tangible materials, electronically stored information, and

other information stored in any form; any written, recorded, electronically or digitally stored,

10

graphic matter, however produced or reproduced; and copies and drafts thereof. Without limiting

11

the foregoing, plaintiff intends the term "document" to mean any form of information within the

12

scope and definition of Washington Civil Rule 34, and includes the following items within your

13

possession, subject to your control, or of which you have knowledge: correspondence; telegrams;

14

memoranda; reports; notes; drafts; minutes; contracts; agreements; books; records; vouchers;

15

invoices; diaries; logs; calendar notes; computer print-outs; e-mails; text messages; back-up

16

materials of any kind; card files; press clippings; newspapers or newsletters; sworn or unsworn

17

statements of employees; lists; audits; tables of organization; deposit slips; monthly or other

18

periodic statements; ledgers; journals; notices; affidavits; court papers; appointment books; minutes

19

or records of conferences or telephone calls; brochures; receipts; written reports or opinions of

20

investigators or experts; status reports; drawings; charts; photographs; negatives; tape recordings;

21

electronic mail; computer file on a hard drive or RAM, floppy disk, CD-ROM, DVD, or other

22

magnetic or optical storage mediwn.

23

24
PLAINTIFFS' SIXTH DISCOVERY REQUESTS TO
DEFENDANT ZILLOW, INC. - 3
2334169.1

CABLE, LANGENBACH,
KINERK &. BAUER, UP
1000 SECOND A VENUE, SUITE 3500
SEATTLE. W ASHlNGTON 98 1()4.1048

120612928800

SMOB03

5. "Identify", "identification", or "identity", means:

a.

When referring to a natural person, state her full name; her present or last-

known business and home address; her present or last-known business position; and, if different, her

business position at the time to which the interrogatory or your response to the interrogatory has

reference; and, a brief description of the responsibilities of such position.

b.

When referring to a docwnent, state its title and date; identify the author or

person who prepared it and any signatories to it; give the type of docwnent ~ letter,

memorandum, invoice); its present location and custodian; a summary of its contents, or principal

terms and provisions; the

identity of its addressee and all other persons receiving it or copies of it If

10

the docwnent so identified was, but is no longer, in your possession, custody or control, state what

II

disposition has been made of it Attach a copy of it to your response to these interrogatories.

12

c.

When referring to a person other than a natural person, set forth:


1)

Full lawful name, and all other names or styles used, at any time, and
for any purposes whether or not registered.

2)

Type of entity ~ general partnership, limited partnership,


corporation, trust, limited liability company).

3)

Present business address and telephone, or last known business


address and telephone.

4)

Registered office address and name of registered agent.

5)

States and foreign countries where qualified to do business.

19

6)

All business addresses and telephone nwnberS in this state.

20

7)

State and date of incorporation.

21

8)

Names and addresses of Washington agent for service of process.

22

9)

Name, principal office, state and date of incorporation, and name of


chief executive officer of:

13

14
15

16
17

18

23
a)

Any controlling corporation;

24
PLAINTIFFS' SIXTH DISCOVERY REQUESTS TO
DEFENDANT Z1LLOW, INC. - 4
2334169.1

CABLE, LANGENBACH,
KINERK & BAUER, UP
1000 SECOND AVENUE, SUITE 3500
SEATnE, WASIIINOTON 91104-1041
(206) 29201100

SMOB04

b)

Any subsidiary corporation.

10)

Name and address of all persons owning a controlling interest, and a


description of the extent of such interest.

11)

Identify its partners, shareholders, principals, officers, directors,


members and managers at the present time, and, if different, at the
times to which the interrogatory and your response to the
interrogatory refer.

3
4

5
6

6. "Trulia" means Trolia, Inc.

7. "Move" means Move, Inc.

NOTICE TO DEFENDANT ZILLOW, INC. AND ITS COUNSEL REGARDING


DISCOVERY OF COMPUTERIELECTRONIC DATA OR MEDIA.

9
Notice is given that defendant's discovery requests, including future requests, include within
10
their scope infonnation and data which is stored or maintained by computer or electronic means.

11
Such information and data must be preserved and protected for purposes of this litigation.
12
Plaintiffts) is instructed to comply with the following:

13
1.

Defendant(s) should not initiate any procedures which would alter any active,

14
deleted, or fragmented files. Such procedures may include, but are not limited to, storing
15
(saving) newly created files to existing drives and diskettes, loading new software such as
16
application programs, running data compression and disk defragmentation (optimization)
17
routines, or the use of utility programs to permanently wipe files, disks or drives.
18
2.

Defendant(s) should stop any rotation, alteration and/or destruction of electronic

19
media that may result in the alteration or loss of any electronic data. Backup tapes and disks

20
should be pulled from their rotation queues and be replaced with new tapes.
21
3.

Defendant(s) should not alter and/or erase active, deleted files or file fragments on

22
any electronic media that may have any relation to this litigation.
23

24
PLAINTIFFS' SIXTH DISCOVERY REQUESTS TO
DEFENDANT ZlLLOW, INC. - S
2334169.1

CABLE, LANGENBACH,

K\NERK &. BAUER, LLP


1000 SECOND AVENUE. Sum 3500
SEATTLE. WASlIlNGllJN91104-1041

12061292-3100

SM0805

4.

Defendant(s) should not dispose of any electronic media storage devices replaced

due to failure and/or upgrade that may contain electronic data baving any relation to this

litigation.

REOUESTSFORPRODUCT10N

REOUEST FOR PRODUCT10N NO. 142: Produce all documents that you submitted to
the Special Master pursuant to the December 12,2014 discovery order.

RESPONSE:

8
9
10

REOUEST FOR PRODUCT10N NO. 143: Produce all communications between


January I, 2013 and July 28, 2014 regarding your acquisition ofTruIia.

11

RESPONSE:

12
13

REOUEST FOR PRODUCT10N NO. 144: Produce documents created between August

14

2012 and the spring of2014 sufficient to showwben Zillow began to consider an acquisition of

15

Trulia as stated in Zillow's SEC filings, including page 94 ofZillow's Schedule 14A filing with the

16

Securities and Exchange Commission, dated November 18,2014.

17

RESPONSE:

18
19
20

REOUEST FOR PRODUCT10N NO. 145: Produce all copies of any strategy or Board
memos created between January 1,2013 and July 28, 2014 related to your acquisition of Trulia.

21

RESPONSE:

22
23
24
PLAINTIFFS' SIXTH DISCOVERY REQUESTS TO
DEFENDANT ZILLOW, INC. - 6
23341691

CAB[, LANGENBACH,
KINER!( & BAUER, LLP
1000 SECOND AVENUE, SUITE 3500
SEATTLE. WASHlNOroN98104-1048
(206)292.1800

SMOB06

1
2

REOUESf FOR PRODUcnON NO. 146: Produce all documents related to your
valuationofTrulia and created between January 1, 2013 and July 28, 2014.

RESPONSE:

REOUESf FOR PRODUcnON NO. 147: Produce all documents created between

January 1,2013 and July 28,2014 that refer or relate to your reasons for initiating or continuing

merger discussions with Trulia

RESPONSE:

10

REOUESf FOR PRODUcnON NO. 148: Produce all documents created between

11

January 1, 2013 and July 28, 2014 that analyze, discuss or otherwise refer to the impact that your

12

merger with Trulia would have on Move.

13

RESPONSE:

14
15

REOUESf FOR PRODUCTION NO. 149: Produce all communications that Errol

16

Samuelson and/or Curt Beardsley had with Trulia regarding any proposed or actual acquisition of

17

Trulia

18

RESPONSE:

19
20
21

REOUESf FOR PRODUcnON NO. 150: Produce all communications that Errol
Samuelson and/or Curt Beardsley had with you regarding Trulia before July 28,2014.

22

RESPONSE:

23
24
PLAINTIFFS' SIXTH DISCOVERY REQUESTS TO
DEFENDANT ZILLOW, INC. - 7
2334169.1

CABLE, LANGENBACH,

KINERK & BAUER, UP


1000 SECOND A VENUE. SUITE 3500
SEATTLE. WASHINGTON 98104-1048
12061292-&800

SMOB07

REOUEST FOR PRODUCTION NO. 151: Produce all non-privileged communications


between you and Shearman & Sterling LLP regarding a possible acquisition ofTrulia.

RESPONSE:

5
6

REOUEST FOR PRODUCTION NO. 152: Produce all communications between you
and Goldman Sachs regarding a possible acquisition ofTruIia.

RESPONSE:

8
9
10

REOUEST FOR PRODUCTION NO. 153: Produce all copies, including drafts, of any
letters of intent related to your acquisition ofTrulia.

11

RESPONSE:

12
13

REOUEST FOR PRODUCTION NO. 154: Produce all communications between you

14

and "unaffiliated significant holders of both [Zillow's] and TruIia's common stock" regarding your

15

acquisition ofTrulia as stated in Zillow's SEC filings, including page 94 ofZillow's Schedule 14A

16

filing with the Securities and Exchange Commission, dated November 18, 2014.

17

RESPONSE:

18
19
20
21

22

23
24
PLAINTIFFS' SIXTH DISCOVERY REQUESTS TO
DEFENDANT ZILLOW, INC. - 8
23341691

CABLE, LANGENBAOl,
KINERK & BAUER, UP
1000 SECOND AVENUE. SUITE 3500
SEATTLE. WASIIINGTON 98104-1048
(206) 292-8800

SM0808

DATED this

~4- day of February, 2015.

2
3
4
. Lovejoy, WSBA No. 36962
LaI.vre:nce R. Cock, WSBA No. 20326
Attorneys for Plaintiffs

5
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7

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14
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24
PLAINTIFFS' SIXTH DISCOVERY REQUESTS TO

DEFENDANT ZILLOW, INC. - 9


2334169 I

CABLE, LANGENBACH,
KINER!( & BAUER, UP
1000 SECOND AVENUE. SlJIlE 3S00
SEATT1.., WASHINOTON 9BI 04- 1048

12061 292.a800

SMOB09

STATE OF WASHINGTON

COUNTY OF KING

)
) ss.
)

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ affmns and states that he/she is a

Defendant, has read the foregoing Plaintiffs' Sixth Discovery Requests to Defendant

Zillow, Inc. and Responses thereto, and that the answers are true and correct, and that

Defendant has not interposed any answers or objections for any improper purpose, such as

to harass or to cause unnecessary delay or needless increase in the cost of litigation.

8
9

By: ___________________________

10

11

SUBSCRIBED AND AFFIRMED TO before me this _ _ _ _ _ day of


_ _ _ _ _ _ _ _- ' , 2015.

12
13
Notary Public

14
15
16

17

(Address)
My Commission Expires:

18
19
20
21

22
23
24
PLAINTIFFS' SIXTH DISCOVERY REQUESTS TO
DEFENDANT ZILLOW, INC. - 10
2334169.1

CABlE, LANGENBACH,
KINER\( & BAUER, UP
1000 SECOND AVENUE. SUITE 3'00
SEATTl.E. WASHINGTON 98104-1048
(206) 2928800

SM0810

CERTIFICATION
I, _ _ _ _ _ _ _ _~, the attorney for Defendant Zillow, Inc., certify that I have

read the answers and objections (if any) to the foregoing Plaintiffs' Sixth Discovery Requests to

Defendant Zillow, Inc. and Responses thereto and, to the best of my knowledge, information,

and beliefformed after a reasonable inquiry are (I) consistent with these rules and warranted by

existing law or good faith argument for the extension, modification, or reversal of existing law,

(2) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or

needless increase in the costs of litigation, and (3) not unreasonably or unduly burdensome or

expensive, given the needs of the case, the discovery already had in the case, the amount of

10

controversy, and the importance of the issues at stake in this litigation.

11

CERTIFICATIONDATEDthis _ _ _ _ dayof _ _ _ _ _ _-',2015.


12
PERKINS COlE LLP

13

By: _ _ _ _ _ _ _ _ _ _ ____

14
15

Attorney for Defendant Zillow, Inc.

16
17
18

19
20
21

22
23
24
PLAINTIFFS' SIXTH DISCOVERY REQUESTS TO
DEFENDANT ZILLOW. INC. - 11
23341691

CABLE, LANGENBAOI.

KiNERK & BAUER, UP


1000 SECOND AVENUE. SUITE 3500
SEAn-LE. WASHINGTON 98104-1048
(206) 292-8800

SM0811

CERTIFICATE OF SERVICE

2
3

The undersigned certifies that on February - - - J 2015, I caused service of the foregoing
upon the party and in the manner indicated below:

4
5

VIA EMAIL:
Susan E. Foster
Kathleen O'Sullivan
Katherine G. Galipeau
Judith B. Jennison
Perkins Coie LLP
1201 Third Ave., Suite 4900
Seattle, WA 98101-3099
Attorneys for Zillow, Inc.

6
7
8
9
10

Clemens H. Barnes
Estera Gordon
Daniel J. Oates
Miller Nash Graham & Dunn PC
Pier 70, Alaskan Way, Suite 300
Seattle, WA 98121-1128
Attorneys for Errol Samuelson

II
12

13
14

I declare under penalty of petjury that the foregoing is true and correct

15

DATED at Seattle, Washington, on February~ 2015.

16
17
18
19
20
21

22
23
24

PLAINTIFFS' srxm DISCOVERY REQUESTS TO


DEFENDANT ZILLOW, INC. - 12
23341691

CABLE, LANOENBAOI,
KINERK &. BAUER, LLP
1000 SECOND AVENUE, SUITE 3S00
SEATIU, WA<HINGTON98104-1048

12061292-8800

SM0812

2
3
4
5
6

7
8
9
10

SPEC IAL MASTER


THE HONO RABL E BRUCE HILYE R (RET.)

\I

12
13
14

15
16

SU PERIO R COURT OF TH E STAT E OF WAS HI NGTON


FOR KING COUNTY

17
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21

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23

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25
26

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29
30
31
32

33
34
35

MOV E, INC. , a Del awa re corporatio n,


REA LSELECT, INC. , a Delawa re
corporati on TOP PRODUCE RS
SYSTEMS COM PAN Y, a British
Columbia unl imiled liability company,
N A TIONAL ASSOCIA TIO OF
REA LTORS, an Ill ino is non-profit
corporation , and REA LTORS
IN FO RMATION ETWORK , INC., an
Il linois corpo ration ,

41

[PROPOSED] ORDER GRA TlNG


DEFENDANT ZILLOW, INC.' S MOTION
FOR PROTECTIVE ORDER (J. P.
MORGAN & GOLDMAN SACHS
SUBPOENAS)

Plaintiffs.
v.

ZILLOW, INC., a Washinglon corpo ratio n,


ERROL SAMUELSON, an indi vidual, and
DO ES 1-20,

36
37
38
39
40

No. 14-2-07669 -0 SEA

Defend ants.
TI-I IS MATTER came be fore the Spec ial Master on De fend anl Zillow, Inc.'s Mot ion
for Protect ive Order (J.P. Morgan & Goldman Sachs Subpoenas). The Special Master,

42
43

havi ng considered all plcad ings and papers submitted in connection wi lh Defen dant Zillow,

44

45

Inc. ' s Motion fo r Protective Order, the argument of co unsel, and bei ng full y ad vised in the

46
47

premises,

Perkins Coie

[PROPOS ED] ORDER GRANTING


DEFEN DAN T ZILLOW , INC'S MOTIO N
FO R PROTECTIVE O RDER - 1

LI. P

120 I Th ird A ve nue. Suite 4900


Seattle, W A 98 10 1-3099
Phone: 206.359 .8000
Fax: 206 .359.9000

SM0820

IT IS ORDERED [hal Zillai'll, Inc . ' s Motion for Protective Order (J.P . Morgan &
2

Go ldman Sachs Subpoenas) is GRANTED.

4
5
6
7

ENTERED this _ _ _ day of February. 2015.

8
9
10
II

12
13

THE HONORABLE BRUCE HILYER


(RET.)
Presented by:

14

15
16
17
18
19

20

PERKINS COlE

LLP

/~!J /1 ~ I----;-

By:
Susan E. Foster, WSBA No . 18030
Kat hleen O'Sullivan, WSBA No. 27850
Katherine G. Galipeau, WSBA No . 408 12

21

21

Attorneys for Defendant Zillai'll, Inc.

23
24

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33

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35
36

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45
,)6

47

IPROPOSED] ORDER GRANTING


DEFENDANT ZlLLOW, INC .' S MOTION
FOR PROTECTIVE ORDER ~ 2

Perkins Coie LI.P


120 I Third A ve nue , Suite 4900
Seatt le, W /I. 9810 1-3099
Pilone: 206.35 9.8000
Fax: 206.359.9000

SM0821

CERTlFICA TE OF SERVICE
2
3

4
5
6
7
8
9
10
11
12
13
14

15
J6
17
18
19

20
21

On February 25, 201 5, I caused to be served upon coun$el of record, at the address
stated below, via the method of service indicated, a true and correct copy of the following
document: [PROPOSED ] ORDER GRANTrNG DEFENDANT ZILLOW. INC.S
MOTION FOR PROTECTIVE ORDER (J.P. MORGAN & GOLDMAN SACHS
SUBPOENAS).
Jack M. Lovejoy, WSBA No. 36962
Lawrence R. Cock, WSBA No_ 20326
Cable. Langenbach, Kinerk & Bauer, LLP
Sui te 3500, LOOO Second Avenue Building
Seattle, WA 98 104- 1048
Telephone: (206) 292-8800
Facsimile: (206) 292-0494

22
23
24
25
26

jlovejoy@c ablelang.com
LRC@cablelang.com
kalbritton@cab lelang.com
j petersen@cablelang.co111

27
28

Clemens I r. Barnes, Esq., WSBA No. 4905


Estera Gordon, WSBA No. 12655
Daniel Oates, WSBA No. 39334
Miller Nash Graham & Dunn LLP
Pier 70
280 1 Ala skan Way, Suite 300
Seattle, \VA 98121-11 28
Telephone: (206) 624-8300
Facsimi le: (206) 340-9599

29
30
31

32
33
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35
36
37
38
39
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41
~2

o
o

o
o
o
J2g

o
o

o
o
o
I2l

Via Hand Delivery


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

Via Hand Delivery


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

clemens.bamcs@millernash.com
conni e. hays@millernash.com
cstera.gordon@millernash.com
dan.oates@millernash.com
roberl.mittenthal@m illemash.com

~3

,14
45
46

47

CERTI FICATE OF SERVICE - 1

Perkins Cole LI."


1201 Third Avenue, Sui te 4900
Seattle, WA 98101-3099
Pbone: 206.359.8000
Fax: 206.359.9000

SM0822

3
4
5
6

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8
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10
II
12
13
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17
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21

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23

24
25
26

Bre nt Caslin, WSBA No. 36145


Richard Lee Stone , (Pro Hac Vice)
N ick G. Saros, (Pro Hac Vice)
Charles H. Abbott Ill, (Pro Hac Vice)
Jeffrey A. Atteberry, (Pro Hac Vice)
Samuel D. Green , (Pro Hac Vice)
Jenner & Block LLP
633 West 5th Street, Sui te 3600
Los Angeles, CA 9007 1
Te lephone : (213) 239 -5150

o
o
o
o
o
IZ'J

Via Hand Deli very


Via U. S. Mai l, 1st Class, Postage
Prepaid
Via Overni ght Del ivery
Via Facsi mile
Via E-fil ing
Via E-ma il

bcas lin@jenner.colll
rstone@ienner.com
nsaros@Jenner.com
chabbott@j enner.com
jatteberry@jenner. com
sgreen@jenner.com

I certify under penalty

or perj ury under the laws o f the State of Washi ngton that the

foregoing is true and correct.


DA TED this 25th day of February, 20 15.

27

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29
30
31

56920.0025/L EGAL 12; 150942 1


2/24/ 15

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47

CERTI FICAT E OF SERVICE - 2

Perkins Coic LLr


120 I Thi rd Avenue, Su ite 4900
Seatt le, WA 98101 -3099
Phone: 206.35 9.8000
Fax : 206 .359.9000

SM0823

SPECIAL MASTER
THE HONORABLE BRUCE HILYER (RET.)
Noted for Hearing: March 5,2015
ORAL ARGUMENT REQUESTED BY ZILLOW

2
3
4

5
6
7

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

9
10
11
12
13

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,

14

15
16
17

Plaintiffs,
v s.

Case No. 14-2-07669-0 SEA


DECLARATION OF JACK LOVEJOY

EXHIBITS CONTAIN INFORMATION


PROTECTED BY PROTECTIVE ORDER

Ex. I: AEO
Ex. 2: OCEO (Don't show Plaintiffs)
Ex. 3: CONFIDENTIAL

ZILLOW, INC., a Washington


corporation, ERROL SAMUELSON, an
individual, and DOES 1-20,

Defendants.
1811 ___________________________~
19

Jack Lovejoy declares and states:

20

1.

21

I am an attorney for plaintiffs in the above captioned action. I am over 21

years old and I have personal knowledge of the facts herein.

22
23
DECLARATIO N OF JAC K LOVEJOY - l

CABLE. L ANGENB AC H.
KINERK & B AUER. LLP
1000 SECOND A VENUE, SU ITE 3500
SEATTLE, W ASHINGTON 98 104- 1048

(206) 292-8800

SM0837

3
4

5
6
7
8
9

10
11

12
13

14
15
16

17
18

2.

On February 24, 2015, I participated in a meet and confer telephone call

with attorneys Katie O'Sullivan and Katie Galipeau for Zillow and Nick Saros for
plaintiffs.
3.

During the February 24, meet and confer, we discussed a number of

issues, including the third party subpoenas at issue in the pending motion. At one point
in the conversation, Zillow' s attorneys offered that on the issue of the Zillow / Trulia
merger, Zillow would produce the non-privileged documents it had produced in camera
to the Special Master in connection with its motion to quash the Trulia subpoena.
4.

Attached to this declaration are true and correct copies of the following

docunlents:
Ex. 1: A document produced by Zillow as Zillow0002348;
Ex. 2: A document produced by Zillow as Zillow0056109;
Ex. 3: A document produced by Mr. Samuelson as EGS005842;
Ex. 4: A document that is publicly available through Bloomberg Law.
I declare under penalty of perjury under the laws of the State of Washington that
the foregoing is true and correct.
DATED March 3,2015, at Seattle, Washington.

19
20
21
22

23

s lIack Lovejoy
Jack Lovejoy, WSBA No. 36962
CABLE, LANGENBACH, KINERK & BAUER, LLP
1000 Second Avenue, Suite 3500
Seattle, Washington 98104-1048
(206) 812-0836 phone
(206) 292-0494 facsimile
jml@cablelang.com
DECLARATIO N OF JAC K LOVEJOY - 2

CABLE, L ANGENB AC H,
KINERK & B AUER, LLP
1000 SECOND A VENUE, SU ITE 3500
SEATTLE, W ASHINGTON 98 104- 1048

(206) 292-8800

SM0838

CERTIFICATE OF SERVICE

2
3
4

I hereby certify that on March 3, 2015, I served the foregoing by email transmission at
the email addresses provided to the following:
Honorable Bruce Hilyer
bwh @hilyeradr.com
*Also by hand delivery

6
7
8

10
11

12
13

14
15

Clemens H. Barnes
Estera Gordon
Daniel J. Oates
MILLER NASH GRAHAM & DUNN LLP
clem.barnes@millernash.com
estera.gordon@millernash.com
dan.oates @millernash.com
Counsel for Errol Samuelson
Susan E. Foster
Kathleen M. O' Sullivan
Katherine G. Galipeau
Judith B. Jennison
PERKINS COlE LLP
sfoster@perkinscoie.com
kosullivan @perkinscoie.com
kgali peau @perkinscoie.com
j jennison @perkinscoie.com

Counsel for Zillow, Inc.


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

16
true and correct.

17
DATED at Seattle, Washington on March 3, 2015.

18
Is/Janet Petersen
Janet Petersen, Legal Assistant
CABLE, LANGENBACH, KINERK & BAUER, LLP
1000 Second A venue, Suite 3500
Seattle, Washington 98104-1048
(206) 292-8800 phone
(206) 292-0494 facsimile
jpetersen@cablelang.com

19
20

21
22
23
DECLARATIO N OF JAC K LOVEJOY - 3

CABLE, LANGENB AC H,
KINERK & B AUER, LLP
1000 SECOND A VENUE, SUITE 3500
SEATTLE, WASHINGTON 98 104-1 048

(206) 292-8800

SM0839

Spencer Rascoff, Ceo, Zillow, Is Interviewed On BI. ., sked FINAL

Spencer Rascoff, Ceo, Zillow, Is Interviewed On BI.., sked FINAL


Published: Jul 282014 12:43:45
TRANSCRIPT
July 28, 2014
NEWS PROGRAM
SPENCER RASCOFF, CEO, ZILLOW,

SPENCER RASCOFF, CEO, ZILLOW, IS INTERVIEWED ON BLOOMBERG TV


REGARDING REAL ESTATE
Roll Call, Inc.
1255 22nd Street NW.
Washington, D.C. 20037
Transcript/Programming: Tel. 301-731-1728
Sales: Tel. 202-419-8500 ext 599
sales@cqrollcall.com www.cqrollcall.com
Copyright 2014 Roll Call, Inc.
All materials herein are protected by United States copyright law and may not be reproduced, distributed,
transmitted, displayed,
published or broadcast without the prior written permission of Roll Call. You may not alter or remove any
trademark,
copyright or other notice from copies of the content.

SPENCER RASCOFF, CEO, ZILLOW, IS INTERVIEWED ON BLOOMBERG


TV

Bloomberg Law@

2015 Th e Bureau of Nation al Affairs, Inc. All Ri ghts Reserved . Terms of Service
II PAGE 1

Declaration of Jack Lovejoy, Exhibit 4, PaM~t

Spencer Rascoff, Ceo, Zillow, Is Interviewed On BI. ., sked FINAL

JULY 28, 2014

SPEAKERS: SPENCER RASCOFF, CEO, ZILLOW

TOM KEENE, BLOOMBERG NEWS

STEPHANIE RUHLE, BLOOMBERG NEWS

TOM KEENE, BLOOMBERG NEWS HOST: One of the transactions of the day widely presumed. But here it is.
Zillow and Trulia, they have revolutionized how we buy houses and now they are joining forces. Zillow will
purchase Trulia for $3.5 billion. All in stock. That transaction is a 70 percent, seven-zero percent premium from
Trulia's price. This before Bloomberg broke the news last week.

Spencer Rascoff is with us, Zillow chief executive officer. And he joins us from Seattle. Spencer,
congratulations on this transaction. When do you reach critical mass?

You are at 300, 200, whatever, out a couple of years. You have got $800 million in revenue. When do you get
to critical mass for Zillow Trulia?

SPENCER RASCOFF, CEO, ZILLOW: Thank you for having me, Tom. It is very early. So it's hard to say but I
know we are not there yet. So real estate professionals spend $12 billion a year on advertising. And they
spend only 4 percent of that on Zillow and Trulia combined. So we have a long way to go to achieve what we
consider to be our ambition, which is to sell more a lot more media and a lot more software tools --

(CROSSTALK)

STEPHANIE RUHLE, BLOOMBERG TV HOST: But aren't the two of you already dominating, capturing all the
online advertising dollars? After Zillow and Trulia, I have no idea who is on third.

Bloomberg Law@

2015 Th e Bureau of Nation al Affairs, Inc. All Rights Reserved. Terms of Service
II PAGE 2

Declaration of Jack Lovejoy, Exhibit 4, PaM~t~

Spencer Rascoff, Ceo, Zillow, Is Interviewed On BI.., sked FINAL

RASCOFF: Well, there is a lot of fragmentation in the


space. Firstly, remember, most real estate advertising still occurs off-line in newspapers and direct mail and
outdoor advertising. The real estate advertising that's online tends to actually -- a lot of it goes to a very long
tail of local real estate sites, including tens of thousands of real estate states in any given city, which in that
long tail, in the aggregate, is actually -- aggregates a lot of consumer audience.

So Zillow and Trulia are probably the two best-known national brands. But it's still a very, very fragmented
space, especially at a local level.

RUHLE: So right now what is your ultimate goal? Earlier


we heard you do want to keep Zillow and Trulia as separate entities. Why not combine them and this
megabrand?

RASCOFF: Well, they will be separate brands. I think it


is very important to have multiple brands in the consumers' mind's eye. Other online media companies have
done this very effectively. For example, The Weather Company operates weather.com, weatherunderground
and intellicast. Expedia operates expediahotels.com, howardzhivago (ph), et cetera. So having multiple brands
allows different brands to appeal to different consumers. And it allows you to expand your overall reach.

Today the consumer overlap between Zillow and Trulia is actually quite small. Less than half of Trulia's users-sorry; less than half of Trulia's users visit Zillow. And about two-thirds of Zillow's visitors don't go to Trulia. So
there's not that much consumer overlap. And it makes sense to keep investing in both brands.

(CROSSTALK)

KEENE: Well, on this Monday, Spencer, do you at Zillow


Trulia, do you open yourself up to acquisition? With the convenience of this merger, does somebody else go
after Spencer Rascoff?

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2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service
II PAGE 3

Declaration of Jack Lovejoy, Exhibit 4, Pa~o~M

Spencer Rascoff, Ceo, Zillow, Is Interviewed On BI. ., sked FINAL

(LAUGHTER)

RASCOFF: Who knows. I certainly think that we like our


chances as a combined company. Both Zillow and Trulia were having a lot of success as independent
companies but we thought by combining forces we could be even more successful. From Zillow's standpoint,
Zillow shareholders will own about two-thirds of the combined company at closing. Trulia's shareholders will
own about one-third.

And from my perspective as a fiduciary and a board member at Zillow, I am extremely excited about owning
two-thirds of the combined company. I think that's a better bet for Zillow shareholders than owning 100 percent
of Zillow stand-alone. And I think Trulia's board felt the same way, that them owning a third of the combined
company was advantageous. So it's very early in this category. This is an immature, fragmented market. This
merger is exciting. But we have a very long way ahead. And this is going to play out over many, many years.

RUHLE: Then help us understand. Why do you think you got


a negative stock reaction today off this news?

RASCOFF: Well, what happens when these deals get


announced is the stocks kind of adjust to what the announced exchange ratio is. And so that is what is
happening today. And that is fine.

I mean, what we are focused is where the stock will be in five or 10 years. And again, I think, what Zillow
shareholders will get is two- thirds of the combined company. And I think that will end up being very, very
valuable a few years out.

Zillow's stock has run up over the last couple of weeks. Credit to Bloomberg for breaking the news last week.
And there was a very significant, positive price reaction as Zillow's shareholders applauded the rumor. And I
think today you are just seeing the stock prices adjust to the exchange ratio.

KEENE: If you were to have a cup of coffee with a


realtor in Kansas City right now, Spencer, what would you tell them? What's their future?

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II PAGE 4

Declaration of Jack Lovejoy, Exhibit 4, PaiM%~t~

Spencer Rascoff, Ceo, Zillow, Is Interviewed On BI. ., sked FINAL

RASCOFF: If they are technology enabled and savvy their


future is very, very bright. The real estate industry is in a great place. And real estate agents who take
advantage of technology are going to do very, very, very well. And so I would tell that agent, make sure that
you are where your consumers are, where your clients are. Make sure that you have presence on mobile. And
make sure you are using technology to grow your business.

KEENE: Is there 6 percent at risk?

RASCOFF: No, it's not. The real commission rate is in


the mid- to low 5 percent right now. And I don't see that changing long-term. And that's because real estate will
always be a professionally assisted transaction where there's a professional in the middle because it's so
infrequent. It is expensive. It's complex, it requires sophistication. And I think for most home shoppers in the
U.S., they are more than happy to have an intermediary, a professional, a practitioner, help them with the
particulars in the transaction. So I don't think commissions will go down long-term at all.

RUHLE: Then how dependent are you on professionals if


realogy (ph) decides to take their business elsewhere and start to use a new portal? How susceptible are you
to some of your big guys walking?

RASCOFF: Well, I think we have to remember is that


agents and brokers and franchisors, their ultimate client is the home buyer and home seller. And so a listing
agent, for example, really needs to make sure that their listing is where homebuyers are. Homebuyers are
increasingly on the Web and on mobile and they're using services like Zillow and Trulia. So I think that is why
you see so much of the industry from MLSs to franchisors to individual brands and franchisees and breakers,
you see them gravitating to partnerships with Zillow and Trulia because they know that's where audience is
and they know they need to make sure that their listing and their agents are well represented in front of those
audiences.

RUHLE: Then how do you get -- ?

RASCOFF: The early reaction I have received from the

Bloomberg Law@

2015 Th e Bureau of Nation al Affairs, Inc. All Ri ghts Reserved . Terms of Service
II PAGE 5

Declaration of Jack Lovejoy, Exhibit 4, Pa~o~t

Spencer Rascoff, Ceo, Zillow, Is Interviewed On BI. ., sked FINAL

industry has been extremely exciting and extremely supportive for those reasons.

RUHLE: Then how do you get potential homebuyers loyal to


you? When I think of my, I just Google "houses for sale" in Bronxville (ph). I end up on Zillow or Trulia just
because you are the first that comes up. But how do you get me, a potential homebuyer, to go to Zillow first or
Trulia first?

RASCOFF: Well, that is the challenge that hundreds of


people in Seattle at Zillow and hundreds of people at Trulia on the product team go to work every day, trying to
solve that problem.

How do we build great products? My hope is that when you come to Zillow, whether it be because of the TV ad
or because somebody sees me on a news program like this or through Google, hopefully they have a great
experience on Zillow and they sign up for our e-mail alerts and they become a registered user and they
develop a brand affinity. So they come to us directly next time. It doesn't always work, but that's the hope.

KEENE: Thank you so much. Congratulations to Spencer


Rascoff on this transaction.

RUHLE: Big day.

***END OF TRANSCRIPT***

THIS TRANSCRIPT MAY NOT BE 100% ACCURATE AND MAY CONTAIN MISSPELLINGS AND OTHER
INACCURACIES. THIS TRANSCRIPT IS PROVIDED "AS IS," WITHOUT EXPRESS OR IMPLIED
WARRANTIES OF ANY KIND. BLOOMBERG RETAINS ALL RIGHTS TO THIS TRANSCRIPT AND
PROVIDES IT SOLELY FOR YOUR PERSONAL, NON-COMMERCIAL USE. BLOOMBERG , ITS SUPPLIERS
AND THIRD-PARTY AGENTS SHALL HAVE NO LIABILITY FOR ERRORS IN THIS TRANSCRIPT OR FOR
LOST PROFITS, LOSSES OR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
PUNITIVE DAMAGES IN CONNECTION WITH THE FURNISHING, PERFORMANCE, OR USE OF SUCH
TRANSCRIPT. NEITHER THE INFORMATION NOR ANY OPINION EXPRESSED IN THIS TRANSCRIPT
CONSTITUTES A SOLICITATION OF THE PURCHASE OR SALE OF SECURITIES OR COMMODITIES.

Bloomberg Law@

2015 Th e Bureau of Nation al Affairs, Inc. All Ri ghts Reserved . Terms of Service
II PAGE 6

Declaration of Jack Lovejoy, Exhibit 4, PaM~t~

Spencer Rascoff, Ceo, Zillow, Is Interviewed On BI.., sked FINAL

ANY OPINION EXPRESSED IN THE TRANSCRIPT DOES NOT NECESSARILY REFLECT THE VIEWS OF
BLOOMBERG LP.

(Copy: Content and programming copyright 2013 BLOOMBERG,


LP. ALL RIGHTS RESERVED. Copyright 2013 CQ-Roll Call, Inc. All materials herein are protected by United
States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast
without the prior written permission of CQ-Roll Call. You may not alter or remove any trademark, copyright or
other notice from copies of the content.)

END

Jul 28, 2014 12:39 ET .EOF


Provider ID: 00463275

-0- Jul/28/2014 16:43 GMT

Bloomberg Law@

2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service
II PAGE 7

Declaration of Jack Lovejoy, Exhibit 4, PaWo~M

Spencer Rascoff, Ceo, Zillow, Is Interviewed On BI.., sked FINAL

Notes

No Notepad Content Found

Bloomberg Law@

2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service
II PAGE 8

Declaration of Jack Lovejoy, Exhibit 4, Pawo~~

SPECIAL MASTER
THE HONORABLE BRUCE HILYER (RET.)
Noted for Consideration: March 5, 2015

1
2

3
4

5
6

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

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9

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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,

13

14
15

Case No. 14-2-07669-0 SEA

[PROPOSED] ORDER DENYING


DEFENDANT ZILLOW'S MOTION FOR
PROTECTIVE ORDER (J.P. MORGAN &
GOLDMAN SACHS SUBPOENAS)

Plaintiffs,
vs.
ZILLOW, INC. , a Washington corporation,
and ERROL SAMUELSON, an individual,
Defendants.

16
17
18

THIS MATTER came before the Special Master on defendant Zillow's motion for
protective order. The Special Master has reviewed:

19

1. Defendant's motion;

20

2. The Declaration of Brad Owens;

21

3. The Declaration of Katherine O'Sullivan;

22

4. Plaintiffs' opposition;

23

5. The Declaration of Jack Lovejoy, with exhibits; and


[PROPOSED] ORDER DENYING DEFENDANT ZILLOW' S
MOTION FOR PROTECTIVE ORDER-1

CABLE, L ANGENB AC H,
KINERK & B AUER, LLP
1000 SECOND A VENUE, S UITE 3500
SEATTLE, W ASHINGTON 98 104- 1048

(206) 292-8800

SM0882

2
3
4

6. Defendant Zillow's reply.


The Special Master is fully advised. NOW THEREFORE it is ORDERED:
1. Defendant Zillow's motion is DENIED.
ENTERED this _ _ day of March, 2015, at Seattle, Washington.

5
6

Hon. Bruce Hilyer (Ret.)


Special Master

7
8

Presented by:

Tack 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
jlovejoy@cablelang.com
lrc@cablelang.com

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[PROPOSED] ORDER DENYING DEFENDANT ZILLOW' S
MOTIO N FOR PROTECTIVE ORDER -2

CABLE, L ANGENB AC H,
KINERK & B AUER, LLP
1000 SECOND A VENUE, SU ITE 3500
SEATTLE, W ASHINGTON 98 104- 1048

(206) 292-8800

SM0883

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3
4
5

6
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8

10

SPECIAL MASTER
THE HONORABLE BRUCE HILYER (RET.)
Noted For Consideration: March 5, 2015

II

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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


SUPPLEMENTAL DECLARATION OF
KATHLEEN M. O' SULLIVAN IN
SUPPORT OF DEFENDANT ZILLOW,
INC. ' S REPLY FOR MOTION FOR
PROTECTIVE ORDER (J.P. MORGAN &
GOLDMAN SACHS SUBPOENAS)

Plaintiffs,
v.

ZILLOW, INC. , a Washington corporation,


ERROL SAMUELSON, an individual , and
DOES 1-20,
Defendants.
1.

I have personal knowledge of the facts stated below and am competent to

44

testify regarding the same. I am one of the attorneys representing defendant Zillow, Inc.

45
46

("Zillow") in this matter.

47

Perkins Coie LLP

SUPP. O'SULLIVAN DECLARATION ISO


REPLY FOR ZILLOW' S MOTION FOR
PROTECTIVE ORDER- I
56920-0025/LEGALl25208429. 1

120 1 Third Avenue, Suite 4900


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

SM0894

2.
2
3

Schedule 14A Proxy Statement filed on April 17, 2014.

3.

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6
7

4.

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Attached as Exhibit B is a true and correct copy of an excerpt of Move' s

Schedule 14A Proxy Statement filed on April 24, 2014.

II

Attached as Exhibit A is a true and correct copy of an excerpt of Zillow ' s

Attached as Exhibit C is a true and correct copy of an article located at the

following URL: http://www .bloomberg.comlnews/articlesI2014-07-28/zillow-to-acquiretrulia-for-3-5-billion-in-stock.

5.

Attached as Exhibit D is a true and correct copy of an article located at the

following URL: http://dealbook.nytimes.coml2014/07128/zillow-to-buy-trulia-for-3-5billionl?_r=O.

6.

Attached as Exhibit E is a true and correct copy of an article located at the

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following URL: http://seekingalpha.comlarticle/2348805-zillow-acquires-trulia-for-3_5-

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News Corp on September 30, 2014, which was also filed with the SEC, and is available at

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39

http://www.sec.gov/Archives/edgar/datall0857701000119312514358968/d797176dex994.ht

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billion.
7.

Attached as Exhibit F is a true and correct excerpt of an SEC filing

submitted by Zillow on November 17, 2014, and available at


http://www.sec.gov/Archives/edgar/datal1334814/000119312514415556/d778624ddefm14a
.htm).
8.

Attached as Exhibit G is a true and correct copy of a press release issued by

m.

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45
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SUPP. O' SULLIVAN DECLARATION ISO REPLY


FOR ZILLOW ' S MOTION FOR PROTECTIVE
ORDER -2
56920-0025/LEGALl 25208429.1

Perkins Coie LLP


1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

SM089

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


foregoing is trne and correct.
Signed at Seattle, Washington, thi s 4th day of MaTch, 2015.

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Kathleen M, ()'S'UiiiVan

......

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SUPP, O'SULLIVAN DECLARATI ON ISO REPLY


FOR ZILLOW'S MOTION FOR PROTECTIV E
ORDER-2
S69200025iLEG AL 125208429,1

Perkins Coie Ll.P


1201 Tbird Avellue, Suite 4900
Seattle, W/I 98 1013099
Phone: 206,35 9,8000
Fax: 206,3 59,9000

SM0896

CERTIFICATE OF SERVICE
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On March 4, 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: SUPPLEMENTAL DECLARATION OF KATHLEEN M. O'SULLIVAN
IN SUPPORT OF DEFENDANT ZILLOW, INC.'S REPLY RE: MOTION FOR
PROTECTIVE ORDER (J.P. MORGAN & GOLDMAN SACHS).
Jack M. Lovejoy, WSBA No. 36962
Lawrence R. Cock, WSBA No. 20326
Cable, Langenbach, Kinerk & Bauer, LLP
Suite 3500, 1000 Second Avenue Building
Seattle, W A 98104-1048
Telephone: (206) 292-8800
Facsimile: (206) 292-0494

o
o
o
o
o
It]

Via Hand Delivery


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

j lovejoy@cablelang.com
LRC@cablelang.com
kalbritton@cablelang.com
jpetersen@cablelang.com
Clemens H. Barnes, Esq. , WSBA No. 4905
Estera Gordon, WSBA No. 12655
Daniel Oates, WSBA No. 39334
Miller Nash Graham & Dunn LLP
Pier 70
2801 Alaskan Way, Suite 300
Seattle, W A 98121-ll28
Telephone: (206) 624-8300
Facsimile: (206) 340-9599

o
o
o
o
o
It]

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
dan.oates@millernash.com
robert.mittenthal@millernash.com

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CERTIFICATE OF SERVICE - I

569200025/LEGALl25208429.1

Perkins Coie LLP


1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

SM089

2
3

4
5
6
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8

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10

Brent Caslin, WSBA No. 36145


Richard Lee Stone, (Pro Hac Vice)
Nick G. Saros, (Pro Hac Vice)
Charles H. Abbott III, (Pro Hac Vice)
Jeffrey A. Atteberry, (Pro Hac Vice)
Samuel D. Green, (Pro Hac Vice)
Jenner & Block LLP
633 West 5th Street, Suite 3600
Los Angeles , CA 90071
Telephone: (2l3) 239-5150

o
o
o
o
o
It]

Via Hand Delivery


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

II

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bcaslin@jenner.com
rstone@jenner.com
nsaros@jenner.com
chabbott@jenner.com
jatteberry@jenner.com
sgreen@jenner.com
I certify under penalty of perjury under the laws of the State of Washington that the
foregoing is true and correct.

DATED this 4th day of March, 2015.


slMaryellen Walsh
Maryellen Walsh
Legal Secretary

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CERTIFICATE OF SERVICE - 2

569200025/LEGALl25208429.1

Perkins Coie LLP


1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

SM089

EXHIBIT A

SM0899

EDGAROnline

ZILLOW INC

FORM DEF 14A


(Proxy Statement (definitive))

Filed 04/17/14 for the Period Ending 06/04/14


Address

Telephone
CIK
Symbol
SIC Code
Industry
Sector
Fiscal Year

1301 SECOND AVENUE


FLOOR 31
SEATTLE, WA 98101
206-470-7000
0001334814

Z
7389 - Business Services, Not Elsewhere Classified
Real Estate Operations
Services
12/31

Pow.er~d

8'1'

EDGARbn.u.ne

http://www.edgar-online .com

<t> Copyright 2014, EDGAR Online, Inc. All Rights Reserved.


Distribution and use of this document restricted under EDGAR Online, Inc. Terms of Use.

SM0900

Table of Contents

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 14A
(Rule 14a l0l)

INFORMATION REQUIRED IN PROXY STATEMENT

SCHEDULE 14A INFORMATION


Proxy Statement Pursuant to Section 14(a) ofthe
Securities Exchange Act of 1934
(Amendment No. )
Filed by the Regi strant [R]

Filed by a Patty other than the Regi strant D

Check the appropriate box:


D

Preliminary Prox y Statement

Confidential, for Use of the Commission Only (as permitted by Rule 14a6(e)(2))

[R]

Definitj ve Proxy Statement

Definitjve Additjonal Materials

Soliciting Material pursuant to 240. 14a- 12

ZILLOW, INC.
(Name of Registrant as Specified in its Charter)
N/A
(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant)

Payment of Filing Fee (Check the appropriate box ):


[R]

No fee required.

Fee computed on table below per Exchange Ac t Rules 14a-6 (1)( I) and 0-11.

( 1)

Title of eac h class of securities to which tran saction applies:

(2)

Aggregate number of securitks to which transaction applies:

(3)

Per unit price or other underlying valu e of tran saction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on
which the filing fee is calculated and state how it was determined):

(4 )

Proposed maximum aggregate value of tran sac tion:

(5)

Total fee paid:

Fee paid pre viously with preliminary material s.

SM0901

Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11 (a)(2) and identify the filing for which the offsetting fee
was paid previously . Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing .

( I)

Amount Previously Paid:

(2)

Form, Schedu le or Regi strati on Statement No. :

(3)

Filing Party:

(4)

Date Filed:

SM0902

Table of Contents

Seattle, Washington

April 17, 20 14
Dear Shareholders:
You are cordially invited to attend the Zillow, Inc. 20 14 Annual Meeting of Shareholders on June 4, 2014 at 8:00 a.m. (Pacific Time). The
meeting will be held at 1301 Second A venue, Floor 17, in the Bainbridge/whidbey room, in Seattle, Washington. Our board of directors has
fixed the close of business on April 2, 2014 as the record date for determining those shareholders entitled to notice of, and to vote at, the annual
meeting of our shareholders and any adjournments thereof.
The Notice of Annual Meeting and Proxy Statement, both of which accompany this letter, provide details regarding the business to be
conducted at the meeting, including a proposal for the election of directors.
Our board of directors recommends that you vote FOR the proposal described in this Proxy Statement.
Your vote is very important. Please vote your shares promptly, whether or not you expect to attend the meeting in person. You may vote over
the lnternet, as well as by telephone, or, if you requested to receive printed proxy materials, by mailing a proxy or voting instruction card.]f
you attend the annual meeting, you may vote in person if you wish , even though you have previously submitted your vote.
Sincerely,

Richard N. Barton

Spencer M. Rascoff

Executive Chairman

Chief Executive Officer

SM0903

Table of Contents

ZILLOW, INC.
1301 Second Avenue, Floor 31
Seattle, WA 98101

NOTICE OF ANNUAL MEETING OF SHAREHOLDERS


TO BE HELD ON JUNE 4, 2014

The 2014 Annual Meeting of Shareholders of Zillow, Inc. (the "Annual Meeting") will be held at 1301 Second A venue, Floor 17. in the
BainbridgeIWhidbey room, in Seattle, Washington , on June 4, 2014 at 8:00 a.m. (Pacific Time) for the following purposes:
1.

To elect three directors nominated by our board of directors to serve until the 2017 Annual Meeting of Shareholders; and

2.

To transact such other business as may properly come before the Annual Meeting.

Only shareholders of record at the close of business on April 2, 2014 (the " Record Date") will be entitled to notice of and to vote at the Annual
Meeting and any adjournments thereof.

In accordance with Securities and Exchange Commission rules, we se nt a Notice of Internet A vailability of Proxy Materials on or about
April 17,2014, and provided access to our proxy materials over the Internet on or before that date, to the holders of record of our common
stock as of the close of business on the Record Date.
Our shareholders and perso ns holding proxies from shareholders may attend the Annual Meeting. If your shares are regi stered in your name,
you must bring a form of identification to the Annual Meeting. If your shares are held in the name of a broker, tru st, bank or other nominee,
you must bring a proxy from that broker, tru st, bank or other nominee that confirms you are the beneficial owner of tho se shares.
By order of the board of directors,

Kathleen Philips
Chief Operating Officer, General Counsel and Secretary
Seattle, Washington
April 17 ,2014

Important Notice Regarding the Availability of Proxy Materials


For the Annual Meeting of Shareholders to be Held on June 4, 2014
This Proxy Statement and the 2013 Annual Report are available at:
http://investors.zillow .comlnoticeaccess.cfm

SM0904

Table of Contents
TABLE OF CONTENTS
Item

Pase

General Information Concerning Proxies and Voting at the Annual Meeting

Proposal 1: Election of Directors

Corporate Governance

Director Compensation

13

Equity Compensation Plan Information

14

Audit Committee RepOit

15

Independent Registered Public Accounting Firm

16

Executive Officers

17

Security Ownership of Celtain Beneficial Owners, Directors, and Management

19

Section 16(a) Beneficial Ownership RepOlting Compliance

22

Named Executive Officer Compensation

23

Compensation Discussion and Analysis

23

Compensation Committee RepOit

30

20 13 Compensation Tables

31

2013 Summary Compensation Table

31

2013 Grants of Plan-Based Awards Table

32

2013 Outstanding Equity Awards at Fiscal Year-End Table

33

20 13 Option Exercises and Stock Vested Table

34

Potential Payments Upon Termination or Change of Control Table

36

Certain Relationshi ps and Related Person Transactions

38

Additional Information

40
Back Cover

Directions
-i-

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Table of Contents

SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE


Section 16(a) of the Exchange Act requires our directors, officers and beneficial holders of more than 10% of a registered class of our equity
securities to file with the SEC initial repOits of ownership and repOits of changes in ownership of our common stock and other equity securities.
To our knowledge, all of our applicable directors , officers and beneficial holders of more than 10% of our common stock complied with all of
the Sectjon 16(a) reporting requirements applicable to them with respect to transactions during fiscal year 2013, except David A. Beitel filed
late a Form 4 to repOlt a stock option granted in June 2013.

22

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NAMED EXECUTIVE OFFICER COMPENSA TION


COMPENSATION DISCUSSION AND ANALYSIS
This Compensation Discussion and Analysis provides information about the compensation for our named executive officers, including an
analysis of the overall objectives of our compensation program and each element of compensation provided. For 2013, our named executive
officers are:

Spencer M. Rascoff, Chief Executive Officer

Chad M. Cohen, Chief Financial Officer and Treasurer

David A. Beitel, Chief Technology Officer

Kathleen Philips, Chief Operating Officer, General Counsel and Secretary

Greg M. Schwartz, Chief Revenue Officer

Compensation Philosophy and Objectives


We believe our success largely depends on our ability to attract, retain and motivate talented employees to operate our company in a dynamic
and changing market. We compete with many other companies in seeking to aUract and retain a skilled management team. To meet this
challenge, the objectives of our compensation program are to:

attract qualified, experienced executive officers who will enable us to achieve our business objectives;

retain and motivate our executive officers to achieve superior peIformance;

reward performance ; and

align the interests of our executive officers with those of our shareholders by motivating our executive officers to increase
shareholder value.

How We Set Executive Compensation


Pursuant to delegation from our board of directors, the compensation committee of our board is generally responsible for setting our overall
executive compensation strategy and for making determinations with re spec t to executive compensation. This includes establishing and
annually reviewing the compensation of our executive officers and overseeing our equity plan to ensure that our total compensation program is
reaso nable and competitive.
tn setting 2013 executive compensation, our compensation committee generally relied on its collective experience and knowledge , its past
practices, our overall pelformance, input from our Chief Executive Officer, Mr. Rascoff, and other considerations it deemed relevant.
Mr. Rascoff recommend s base salary increases and the size of equity awards (o ther than for him self) to the compensation committee for its
consideration and advises the compensation committee regarding our compensation program 's ability to attract, retain and motivate executive
talent. Mr. Rascoff s recommendations reflect compensation levels that he believes are commensurate with an executive officer's individual
qualifications, experience, level of re sponsibility, knowledge, skill s and individual performance, as well as our re sources and performance.
tn addition, during 2012, at the request of our compensation committee, our Executive Chairman, Mr. Barton, retained Barney & Barney LLC,
an independent compensation consulting firm , to conduct a total direct compensation analysis of chief executive officer compensation at celtain
se lected companies. Barney & Barney LLC provided compensation data from publicly available proxy statements for the chief executive
officers of companies identified by celtain of our executive officers as peer companies. These peer companies were identified among
companies operating in the real estate andlor mobile and Internet industries, taking into account

23

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size and status as a recently public company. The data gathered included, among other items, 75 th, 50 th and 25 th percentile base salary, langterm incentive and total direct compensation levels for executive officers of the peer group. With respect to 2013 executive compensation, the
compensation committee used the information provided by Barney & Bamey LLC as a reference point solely in connection with the January
2013 stock option grant to Mr. Rascoff discussed below in the section entitled, "Elements of Executive Compensation - Equity-Based
Compensation" and the determination of Mr. Rascoff's base salary for 2013. Barney & Barney LLC did not provide any other services to the
compensation committee, management, or the Company during 2012 or 2013.
The 2013 peer group used in connection with determining Mr. Rascoff' s January 2013 stock option grant and his 2013 base salary was
composed of the following companies:
The Active Network, [nco

Motricity, Inc.

Angie's List, Inc.

Move, Inc.

Ancestry.com LLC

OpenTable, Inc.

Bankrate, Inc.

Orbitz Worldwide, Inc.

Blue Nile, Inc.

Shutterfly, Inc.

Expedia, Inc.

TripAdvisor, [nco

Groupon, Inc.

Trulia, Inc.

HomeAway, Inc.

WebMD Health Corp.

Linkedln COIporation

Yelp Inc.

Market Leader, Inc.

Zipcar, [nco

We held a non-binding , advisory vote to approve the compensation of our named executive officers, commonly referred to as the " say-on-pay"
vote, at our 2012 Annual Meeting of Shareholders, as required by Sectjon 14A of the Securities Exchange Act of 1934. Our advisory resolution
to approve the compensatjon of our named executive officers received substantial majority SUppOit from shareholders with approximately 97%
" For" votes. We take thi s result as SUppOit that our executjve compensation program and practices are reasonable and well-aligned with
shareholder expectations. Nevertheless, we review our overall approach to executive compensation periodically and we expect that the specific
direction, emphasis and components of our executjve compensation program will continue to evolve as will our process for establishing
executive compensation. In the future, for example, we may begin to more formally assess our overall executjve compensation program against
that of comparable companies, including through the broader use of market compensation data. We intend to hold an advi sory vote on the
compensatjon of our named executjve officers every third year. We are and will remain committed to being responsive to shareholder feedback,
and the results of our say on pay votes will help inform the compensation committee's di sc uss ions about the executive compensation program.

Elements of Executive Compensation


For 2013, our executive compensation program was comprised of base salaries, equity compensation in the form of stock options, and limited
cash bonuses. Historically, and including 2013, compensation decisions for our executive officers have been highly individualized and based
on a variety of factors. In particular, we have emphasized the use of equity to incentivize our executive officers to focu s on our growth and
create long-term shareholder value. To date, the compensation committee has not adopted any formal or informal policies for allocating
compensatjon between long-term and short-term compensation or between cash and equity compensation.

Base Salaries. Base salaries provide our executive officers with a fixed amount of consistent compensation and, in conjunction with equity
awards, are a significant motivating factor in attracting and retaining our executive officers. We have designed base salaries to be competitive
while also seeking to manage our cash reso urce s.
24

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When an executive officer is first hired, base salary is generally initially established through individual negotiatjons between us and the
executive officer, taking into account subjective judgments as to the executi ve officer's qualifications, experience, job dutks and
responsibilities, prior salary and internal pay equity comparisons.
The compensation committee annually reviews the base salaries of our executive officers. Adjustments to salaries generall y become effective
in the first qumter of the year fo ll owing comp letion of our annual performance review process. This process includes a comprehensive se lfpelformance review by all emp loyees as we ll as a manager and peer review. Adjustments to base salaries also may occur at other times in the
year in connectjon with promotions or performance.
In January 20 13, annual base salaries for the named executive officers were approved, effective as of February 1, 20 13, based on a subjective
evaluation of execu ti ve officer performance, both historical and anticipated, and on the other factors described above. In approving 20 13
salaries, the compensation committee also considered the additional demands placed on each of the named executive officers by the company's
growth during 20 12, both endemic and through our four acquisitions during 20 12. Significant milestones for the year ended December 3 1, 20 12
included our acquisitions of HotPads, Inc., MOitech, Inc., The Guru Group LLC, dba Buyfolio.com, and RentJuice Corporation; the launch of
several new tools and app licatjons, including Zillow Rentals and Zillow Mortgage Marketplace applications; the renewal and expansion of our
relationships with Yahoo! [nco and Yahoo! Homes, respectively; and our sale and issuance of 3,844,8 18 shares of our Class A common stock
in a registered offering. In addi ti on, wi th respect to Mr. Rascoff, the compensation committee considered his long-standing service to us in
leadership ro les, his responsibilitjes over the prior year and the desire to incentivize and retain Mr. Rascoff, as we ll as the peer company
compensatjon data provided by Barney & Barney LLC. Mr. Cohen, Mr. Beitel, Ms. Philips, and Mr. Schwartz each oversee substantial pOitions
of our business and their salary increases were adjus ted to reflect leve ls the compensation committee believed were commensurate with their
responsibilities and performance. Mr. Cohen oversees a large number of our employees in his capacity as our Chief Financial Officer.
Mr. Beitel oversees a substantial number of employees in hi s position as Chief Techno logy Officer. Ms. Philips oversees our legal and human
resources depmtments as General Counsel and Secretary. Mr. Schwartz is largely responsible for revenue deve lopment.
In additjon to the base salary adjustmen ts at the beginning of 20 13, in consu ltation wi th the Compensation Commi ttee, Mr. Rascoff undertook a
mid-year review of the 20 13 base salaries for our named executive officers, other than himself. As a result of this eva lu atjon, salaries were
increased effective as of June 16,2013 for each of our named executive officers other than Mr. Rascoff. The mid-year salary increases were
based on an analysis of the factors discussed above for the February 1, 20 13 salary increases and also were largely driven by the strong
pelformance of our executive officers during a time of rapid growth and related increases in job responsibilities.
The table below contains information about the base salaries of our named executive officers, including the base salaries effective as of
February 1,20 13 and the amount of the base salary increases effective as of June 16,20 13.
February 2013

June 2013
Base Salary

Total
2013 Base Salary

Base Salary

Increase

Increase

($)

($)

($)(1)

% Increase

Name

Spencer M. Rascoff
Chad M. Cohen
David A. Beitel
Kathleen Philips
Greg M. Schwartz
(1)
(2)

485,640
305,795
299, 184
305,833
268,105

$
50,000
100,000
75,000
100,000

144,840
141 ,05 1
123, 184
149,84 1
11 2,767

Over 2012
Base Salary(2)

43%
54%
27%
49%
25%

Sum of 20 13 base salary increases effective February and June 20 13.


Percentage amounts are based on average base salary for 20 13 which are: Mr. Rascoff, $485,640; Mr. Cohen, $330,759; Mr. Beitel,
$349, 184; Ms. Philips, $343,333 and Mr. Schwmtz, $3 18, 105.

25

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Cash Bonuses. We have not established a formal cash incentjve plan for our executive officers or otherwise awarded peIformance-based cash
bonuses, with a limited exception for Mr. Schwartz de sc ribed below. lnstead we have relied primarily on the long-term incentive value of stock
options.
While we do not offer a cash incentive plan for all our executive officers, since the commencement of Mr. SchwaItz's employment in 2007, we
have offered him the opportunity to earn cash-based bonuses based on achievement of revenue. We believe that thi s type of compensation for a
principal sales executive respons ible for revenue development is common in the market in which we compete for talent and is reaso nable in
order to sec ure and retain Mr. Schwartz's employment. For 2013, we changed the cash bonus oppOltunities for Mr. Schwmtz in order to
financially incentivize him to monetize certain new products we have recently introduced. Prior to the changes made in 2013, Mr. Schwartz's
pelformance-based incentive opportunities had not previously changed since he began employment with us and we believe the 2013
pelformance incentives are more aligned with hi s total current compensation.
For 2013, Mr. Schwartz had the following bonus opportunities:

Total Revenue Bonus. Similar to prior years, Mr. Schwmtz was offered a bonus oppOltunity based on generated revenue. For 2013 ,
Mr. Schwartz was eligible to receive a target bonus of $50,000 semi-annually, based on revenue generated during the first half and
the seco nd half of 20 13 in relation to pre-establi shed revenue objectives. Revenue is calculated under u.s. generally accepted
accounting principles. For the first half of 2013, the revenue target was $80.637 million and for the seco nd half of 20 13, the revenue
target was $102.132 million. The bonus payouts increase on a percentage bas is to the extent that generated revenue exceeds target.
For the first half of 2013, revenue was approximately $85.886 million (106.51 % of target) and Mr. Schwartz earned a bonus of
$53,255 that was paid in July 2013. For the second half of 20 13, revenue was approximately $111.659 million ( 109.33% of target)
and Mr. Schwartz eamed a bonus of $54,664 that was paid in January 2014.

Rental Revenue Bonus. Mr. Schwartz was eligible to receive a $50,000 bonus in connection with meeting certain rental revenue
objectives in 2013. This bonus opportunity is capped at $50,000, though a lesse r amount may be earned if at least 75% of target
rental revenue is achieved. During 20 13, rental revenue was generated at 90% of target, and Mr. Schwmtz received a bonus of
$45,000 paid in January 2014. The target level for thi s goal was set at a level anticipated to be difficult to achieve and was des igned
to reward outstanding performance. We have not di sclosed the pelformance target for thi s goal because we believe this di sclosure
would reveal confidential objectives and information that is not othelwise publicly di sclosed by us and would result in competitive
harm to us.

Premier Agent Revenue Bonus. Mr. Schwartz was eligible to receive a $50,000 bonus based on achievement of targeted premier
agent revenue. This target was set at a challenging level that would require sub stantial effOlt to achieve. Premier agent revenue
includes revenue from agent subscription s. No amount is paid if the revenue target is not achieved. This target was not achieved for
2013 and, accordingly, no bonus was paid to Mr. Schwartz under thi s bonus oppOltunity. We have not di sclosed the pelformance
target for thi s goal because we believe it would reveal confidential objectives and information that is not othelwise publicly
di sclosed by us and would result in competitive harm to us.

Equity-Based Compensation. Since our inception, equity-based compensation in the form of stock options to purchase share s of our Class A
common stock has been an integral component of our compensation program for all our employees. Our board of directors and our
compensation committee believe that stock options have played and continue to playa significant role in our ability to attract, motivate and
incentivize the executive talent necessary to accomplish our business objectives. We believe that stock options also provide our employees with
a significant long-term interest in our success by rewarding the creation of shareholder value as stock options only have value if the price of our
Class A common stock appreciates after the options are granted. Vesting for stock options is based on continued employment with us, generally
over four years, thereby also encouraging the retention of our executive officers.

26

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Table of Contents
We do not apply a formula to determine the size of individual stock options granted to our named executjve officers. Instead, our compensation
committee generally determines the size of individual grants using its collective business judgment and experience, taking into account, among
other factors, the role and responsibility of the individual executive officer, the competitive market for the executive officer' s position, the size
and value of existing equity awards and a subjective evaluation of individual performance and prior contributions to us. Based upon these
factors, the compensation committee sets the size of each stock option award at a level it considers appropriate to create a meaningful incentive.
No specific weight is given to anyone of the foregoing factors, although larger awards are typically granted to executive officers with duties
and responsibilities that are more likely to have a larger impact on the creation of long-term shareholder value. With limited exceptions, stock
options are the only type of equity award we have granted to our executive officers since our inception.
As discussed above, the compensation committee considered compensatjon data from certain peer companies as a reference point and as one
factor among many in connection with the stock option grant to Mr. Rascoff in January 2013. [n the future, the compensation committee may
contjnue to consider competitive market data or utilize such data as a tool to determine equity award grant amounts for our executjve officers.
Our executjve officers generally receive an initial stock option grant in connection with their hiring. Following each annual performance
review, we typically grant additional stock options to our employees, including our named executive officers, in the first quarter of the year
following completion of our annual pelformance review. The compensation committee also may grant additional stock options from time to
tjme to retain executive officers and reward them for promotions or pelformance.
Stock optjons to our executive officers generally have a seven-year term and generally vest over four years , with 25 % vesting after one year
from the date of grant and the remainder vesting thereafter over 36 months in equal monthly installments, subject to the executive officer' s
continued employment. We grant stock options with an exercise price equal to the current fair market value of our Class A common stock,
which is equal to the closing price of our Class A common stock on The Nasdaq Global Market on the date of grant (or if the common stock is
not trading on that date, the closing price on the immediately preceding trading day). Certain outstanding stock option grants to our Chief
Executive Officer, Mr. Rascoff, provide for "double-trigger" acceleration, as described in greater detail in the section entitled "2013
Compensation Tables - Potential Payments Upon Termination or Change-of-Contro1."
tn January 2013, each of our named executive officers received stock option grants following our annual performance review process for the
following number of shares: Mr. Rascoff, 500,000 shares; Mr. Cohen, 43 ,000 shares; Mr. Beitel , 43 ,000 shares; Ms. Philips, 43,000 shares; and
Mr. Schwartz, 43,000 shares. The foregoing grant amounts reflected the compensation committee' s assessment of grant sizes it felt appropriate
to recognize the executjve officers' level of responsibilities and contributions during the past year and to retain and incentivize them for the
future. With respect to Mr. Rascoffs grant, the compensation committee also considered his long-standing service to us in leadership roles, as
well as his responsibilities and accomplishments over the prior year. Mr. Rascoffs stock option grants also reflect the compensation
committee ' s desire to incentivize and retain Mr. Rascoff during a period of anticipated growth, align his contributions with the long-term
interests of our shareholders and ensure an appropriate level of ownership in the Company. No portion of the stock option granted to
Mr. Rascoffs first vests until January 24, 2016, at which time one-eighth of the shares subject to the option vest. Thereafter, an additional 1/96
th vests each month thereafter over the next three years. An additional one-eighth of this stock option vests on January 24, 2017, with an
additional 1/96 th vesting each month thereafter over the next three years until the option is fully vested on January 24, 2020. In light of this
stock option's extended vesting schedule, which requires Mr. Rascoffs continued service until January 24, 2016 before any vestjng occurs, and
the number of shares subject to the optjon, the compensatjon committee felt Mr. Rascoff was appropriately compensated with equity awards at
the tjme it awarded additional stock options to our executive officers in January 2014. As a result, Mr. Rascoff did not receive an additional
stock option grant at that time.
tn June 2013, Mr. Beitel received an additional stock option grant to purchase 20,000 shares of our Class A common stock in connection with a
review of his overall compensatjon, as well as the compensatjon committee' s desire to continue to incentivize and retain Mr. Beitel and ensure
an appropriate level of ownership in the Company.

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We do not have, nor do we intend to have, a program, plan, or practice to time stock option grants to our existing executive officers or to new
executive officers in coordination with the release of material nonpublic information for the purpose of affecting the value of executive
compensation.
tn the future , the compensation committee may consider the use of alternative types of equity awards, such as restricted stock units, or a mix of
equity awards, for our executive officers.

Other Executive Benefits. Our named executive officers generally receive health and welfare benefits under the same programs and subject to
the same terms and conditions as our other salaried employees. These benefits include medical, dental and vision benefits, shOit-term and longterm disability insurance, accidental death and dismemberment insurance and basic life insurance. Our named executive officers also are
eligible to participate in our 401 (k) plan.
Historically, we have not provided significant perquisites or other personal benefits to our named executive officers, except that certain of our
named executive officers receive paid parking, the value of which was less than $10,000 in 2013. We do not view perquisites or other personal
benefits as a significant component of our executive compensation program.
The compensation committee does not believe that the Company' s incentive compensation programs described above contain incentives for
our named executive officers or other employees to take risks in pelforming their duties that are reasonably likely to have a material adverse
effect on the Company, particularly in light of the compensation committee's historical emphasis on stock options which it believes reward
sustained long-term performance that is aligned with our shareholders' interests.

Employment Agreements
We entered into employment agreements, effective as of July 25, 2011 , with Mr. Rascoff, Mr. Cohen, and Ms. Philips to assist in the retention
of the services of these executive officers and to help them maintain their focus and dedication to their responsibilities to maximize shareholder
value in the event of a transaction that could result in a change of control of our company. Each employment agreement provides that
employment with us is " at will."
The employment agreements provide the following severance payments and benefits if the executive officer's employment is terminated by us
without cause (as defined in the employment agreement) or if he or she resigns for good reason (as defined in the employment agreement),
including such a termination in connection with or within 18 months after a change of control (as defined in the employment agreement):

severance pay equal to six months of salary, generally payable in the form of salary continuation following the date of termination;

COBRA continuation coverage for up to six months following termination (or until such earlier time as the executive officer
becomes covered by the medical plan of another employer);

12 months' accelerated vesting of unvested stock options and any other outstanding equity awards that vest based on continued
service, except that, in the event of a qualifying termination in connection with or within 18 months after a change of control, 50%
of the unvested pOitions of such outstanding equity awards will accelerate in vesting;

an extension of time to exercise outstanding stock options until the earlier of (a) one year following termination and (b) the
expiration of the term of the options; and

earned but unpaid salary and accrued vacation pay otherwise payable under our standard policy.

To the extent Mr. Rascoff holds stock options that were granted prior to the effective date of his employment agreement and that, pursuant to
their original terms, provide for greater acceleration of vesting than under the

28

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employment agreement upon certain terminations of employment following a change of control, the original vesting acceleration provisions for
such options will contjnue to apply. The vesting acceleration provisions applicable to celtain stock options held by Mr. Rascoff are described
below in the section entitled "2013 Compensation Tables - Potential Payments upon Termination or Change of Control."
As a condition to receiving any severance payments or benefits under the employment agreements, Mr. Rascoff, Mr. Cohen and Ms. Philips
must execute a general release and waiver of all claims against us in a form satisfactory to us. The executive officers must also continue to
comply with the applicable terms of their confidentiality and noncompetition agreements. The employment agreements and employment
terminate automatically upon death or total disability of the executive officer.
We do not provide any tax gross-ups to cover personal income taxes that may apply to any severance or change-of-control benefits. If any
payments or benefits payable under the employment agreements will be subject to an excise tax under Section 4999 of the Code, we will pay to
the executive officer either (a) the full amount of such payments or benefits or (b) the full amount reduced by the minimum amount necessary
to prevent any portion from being an excess parachute payment within the meaning of Code Section 2800, whichever results, on an after-tax
basis, in the greater amount payable to the executive officer.

Recovery Policy
As of the date of this Proxy Statement, we do not have a formal compensation recovery policy, often referred to as a "c1awback" policy, aside
from the clawback provisions for the Chief Executive Officer and Chief Financial Officer under the Sarbanes-Oxley Act of 2002, which
provides that those executives must reimburse Zillow for any bonus or other incentive-based or equity-based compensation received during the
l2-month period following the preparation of an accounting restatement, as a result of misconduct. The board of directors or the compensation
committee will adopt such a formal claw back policy no later than when the final rules relating to such policies are effective pursuant to the
Dodd-Frank Act and require such a policy to be in effect.

Stock Ownership Guidelines


At this time, our board of directors has not adopted stock ownership guidelines for the named executive officers although it may consider doing
so in the future. However, all of our executive officers hold either shares and/or stock options, which we believe helps align their interests with
those of our shareholders. We have established an insider trading compliance policy that prohibits, among other actions , shOit sales and
strongly discourages and requires preapproval of, among other actions , hedging of stock ownership positions.

Tax Treatment of Compensation


Section 162(m) of the Code generally disallows a tax deduction to a public corporation for annual compensation in excess of $1 million paid to
its principal executive officer and the three other most highly compensated named executive officers (excluding the principal financial officer).
Compensation that qualifies as "peIformance-based" is excluded for purposes of calculating the amount of compensation subject to the
$1 million limit.
Stock options granted to our executive officers pursuant to our equity compensation plans are intended to qualify for the performance-based
exemption. While our compensation committee believes it is impOitant to maximize the tax deductibility of compensation paid to our executive
officers, the compensation committee has not adopted a policy that all compensation must be tax-deductible and qualified under Code
Section 162(m). In order to maintain ongoing flexibility of our compensation programs, the compensation committee may from time to time
approve incentive and other compensation that exceeds the $ 1 million limit.

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COMPENSATION COMMITTEE REPORT
The compensation committee of our board of directors has reviewed and discussed the Compensation Disc uss ion and Analysis with
management, and, based on such review and di scuss ions, the compensation committee recommended to our board of directors that the
Compensation Di scuss ion and Analysis be included in thi s Proxy Statement.
Members of the compensation committee:
Jay C. Hoag (Chairman)

Erik Blachford
Gordon Stephenson

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2013 COMPENSATION TABLES
2013 Summary Compensation Table
The following table provides information regarding the compensation of our named executive officers earned for 2013, 2012 and 2011.
Positjons listed below are those cUITently held by the named executive officers.
Option

Non.Equity
Incentive Plan
Compensation

Salary

Bonus

Name and Principal Position

Year

($)(1)

($)(2)

Awards
($)(3)

Spencer M. Rascoff
Chief Executive Officer

2013
2012
2011

473,570
331,333
281,667

101
100,101

10,113,600
6,754,184
376,9 15

10,587,170
7,085,618
758,683

Chad M. Cohen
Chief Financial Officer alld Treasurer

2013
2012
2011

325,29 1
212,402
195,581

101
75,10 1

663,086
93, 188
91,087

988,377
305,691
361,769

David A. Beitel

2013
2012
2011

351,419
268,333
230,000

101
101

1,148,538
319,648
125,638

1,499,957
588,082
355,739

Kathleen Philips
Chief Operating Officer, General Counsel and Secrelaty

2013
2012
2011

340,22 1
224,575
191,245

101
140,608

663,086
232,970
40,831

1,003,307
457,646
372,684

Greg M. Schwartz
Chief Revenue Officer

2013
2012
2011

321,208
248,246
211,402

101
101

663,086
232,970
113,074

ellie/Technology Officer

(1)
(2)

(3)

(4)

Total

($)

($)

152,919(4)
50,000(4)
50,000(4)

1,137,213
531,317
374,577

Base salary adjustments first became effective February 1, 2013.


For 2011, amounts reflect a holiday bonus of $10 1 paid to all employees in December 2011 , and for Ms. Philips, the second installment
of an initial hiring bonus in the amount of $65,000. Any amounts reported in excess of that for 20 11 reflect a bonus paid in recognition of
efforts to complete our initial public offering of Class A common stock in 2011. For 2012, amounts reflect a holiday bonus in the amount
of$101 paid 10 all employees in December 20 12.
Amounts reflect aggregate grant date fair value of the option awards granted, computed in accordance with FASB ASC Topic 718.
Assumptions used to calculate these amounts are described in Note 11 , "Share-Based Awards," to our financial statements included in our
Annual RepOlt on Form IO-K for the year ended December 31 , 2013.
Reflects amounts earned by Mr. Schwartz for performance as described in the section entitled "Named Executive Officer Compensation Compensation Discussion and Analysis - Elements of Executive Compensation - Cash Bonuses," including amounts that were paid in
January of the following year for performance in the year indicated.
31

SM 0915

Table of Contents
2013 Grants of Plan-Based Awards Table
The following table provides information regarding plan-based awards granted to our named executive officers during 2013.

Threshold

Target

Maximum

All Other
Option
Awards:
Number of
Securities
Underlying
Options

($)

($)

($)

(#)

Estimated Future Payouts Under


Non-Egultr Incentive Plan Awards

Name

Grant Date

Exercise or
Base Price
of Option

Grant Date
Fair Value of

Awards
($/8h)

Option Awards

Stock and
($)(1)

Spencer M. Rascoff
1I24/2013

500,000(2)

36.36

10,113,600

1I24/2013

43 ,000(3 )

36.36

663,086

1I24/2013
6/27/2013

43 ,000(3 )
20,000(3)

36.36
57.84

663 ,086
485,452

1I24/2013

43,000(3)

36.36

663,086

43 ,000(3 )

36.36

663,086

Chad M. Cohen
David A. Beitel

Kathleen Philips
Greg M. Schwartz

37,500(4)

200,000(5)

1I24/2013

(1)

(2)

(3)
(4)

(5)
(6)

100,000(6)

Amounts reflect aggregate grant date fair value of the option awards granted during 2013, computed in accordance with FASB ASC
Topic 718. Assumptions used to calculate these amounts are described in Note 11, " Share-Based Awards," to our financial statements
included in our Annual RepOit on Form 10-K for the year ended December 31, 2013.
The stock option award vests over seven years, with one-eighth vestjng on January 24, 20 16, and an additional 1/96 thvesting each month
thereafter over the next three years. An additional one-eighth vests on January 24, 2017, with an additional 1196 th vesting each month
thereafter over the next three years until the option is fully vested. Vesting is subject to continued service.
The stock option award vests over four years, with 25% vesting on the first anniversary of the grant date and the remainder vesting
monthly in equal installments over the following 36 months, subject to continued service.
Mr. Schwartz is eligible to receive bonuses based on total revenue , rental revenue and premier agent revenue generated during 2013. For
the total revenue bonus, a threshold payout amount is not determinable because amounts are payable as a percentage of actual results. For
the rental revenue bonus, threshold performance results in a payment of $37,500. For the premier agent revenue, no threshold amount
applies since the target goal must be achieved for any payout.
lncludes target payout of $ 100,000 under the total revenue bonus opportunity, $50,000 under the rental revenue bonus oppOitunity and
$50,000 under the premier agent revenue bonus oppOitunity.
For the total revenue bonus, a maximum payout is not determinable because amounts are payable as a percentage of actual results. Each
of the rental revenue bonus and premier agent revenue bonus has a maximum payout of $50,000. The actual amount paid to Mr. Schwartz
for 20 13 performance is set fOith in the 20 13 Summary Compensation Table above. For additional discussion regarding Mr. Schwartz's
bonus arrangement, please refer to the section entitled "Named Executive Officer Compensation - Compensation Discussion and
Analysis - Elements of Executive Compensation - Cash Bonuses." We did not provide any other non-equity incentive plan awards to our
other named executive officers during 2013.
32

SM0916

Table of Contents
2013 Outstanding Equity Awards at Fiscal Year-End Table
The following table provides celtain information regarding outstanding equity awards held by each of our named executive officers at
December 31,2013. Other than the option awards listed below, our named executive officers held no other equity awards at December 31,
2013.
0l!tion Awards
Numher of

Number of

Securities
Underlying

Securities
Underlying
Unexercised

Unexercised
0l!tions

Exercisahle
Name

Grant Date

Spencer M. Rascoff

Chad M. Cohen

David A. Beitel

Kathleen Philips

Greg M. Schwartz

(1)

(2)

1124/2013
12126/2012
212/2012
31112011
9115/2010
3112/20 10
2112/2009
2/27/2008
1124/2013
2/2/2012
31112011
11115/2010
811712010
3112/2010
8/25/2009

(#)

62,500
21,560
29,851
96,153
110,946
68,343
1,200

5
4
I
155

Unexerdsahle

Option
Exercise
Price

(#)

-($-)-

0l!tions

Option
Expiration
Date

500,000(1)
437,500(2)
27,783(3)
77,663(4)
22,190(3)
7,397(3)

36.36
28.78
30.46
3.89
3.25
3.59
3.52
7.27

1124/2023
12/26/2019
2/2/2019
311/2018
9115/2017
3112/20 17
2112/2016
2/27/2015

43,000(3)
4,050(3)
13,406(3)
6,441(3)
2,712(3)
925(3)

36.36
30.46
3.89
3.25
3.25
3.59
3.86

1124/2020
2/2/2019
311/2018
11115/2017
8117/2017
3112/2017
8/25/2016

57.83
36.36
30.46
3.89
3.59

6/27/2020
1/24/2020
2/2/2019
31112018
3112/2017

6/2712013
1124/2013
2/212012
31112011
3112/2010

4,509
4,931
4,315

20,000(3)
43,000(3)
13,892(3)
18,491 (3)
3,236(3)

1124/2013
2/212012
31112011
7120/2010

375
400
1,109

43,000(3)
10,125(3)
6,010(3)
7,767(3)

36.36
30.46
3.89
3.25

1/24/2020
2/2/2019
31112018
7/20/2017

112412013
2/212012
31112011
9115/2010
3112/2010
2/27/2008

7,875
31,612
48,076
8,521
12,995

43,000(3)
10,125(3)
16,642(3)
11,095(3)
1,849(3)

36.36
30.46
3.89
3.25
3.59
7.27

1/24/2020
2/2/2019
31112018
9115/2017
3112/2017
2/27/2015

The stock option award vests over seven years, with one-eighth vesting on January 24, 20 16, and an additional 1/96 th vesting each month
thereafter over the next three years. An additional one-eighth vests on January 24, 2017, with an additional 1196 th vesting each month
thereafter over the next three years until the option is fully vested. Vesting is subject to continued service.
The stock option award vests over five years, with one-eighth vestjng on December 26, 2013, and an additional 1/96 th vesting each month
thereafter over the next three years. An additional one-eighth vests on December 26,2014, with an additional 1196 th vesting each month
thereafter over the next three years until the option is fully vested. Vesting is subject to continued service.
33

SM 0917

Table of Contents
(3)
(4)

The stock option award vests over four years, with 25% vesting on the first anniversary of the grant date and the remainder vesting in
equal monthly installments over the following 36 months , subject to continued service.
The stock option award vests over 54 months, with 25% vesting 18 months after the grant date and the remainder vesting in equal
monthly installments over the following 36 months , subject to continued service.

2013 Option Exercises and Stock Vested Table


The following table provides information, on an aggregate basis, about stock options exercised by the named executive officers during the
fiscal year ended December 3 1,20 13.
Option A wards
Number
of Shares
Acquired
Value Realized
on Exercise
on Exercise
(#)

Name

Spencer M. Rascoff
Chad M. Cohen
David A. Beitel
Kathleen Philips
Greg M. Schwartz
(1)

35l,603
36, 190
l22,050
39,590
80,433

($)(1)

19,206,l38
2,063,23l
8,263,543
2,082,995
5,007,040

Based on the difference between the fair market value of Zillow common stock at the time of exercise and the applicable exercise price of
the option.

Potential Payments upon Termination or Change of Control


Certain of our compensation plans, equity award agreements and employment agreements entitle the named executive officers to accelerated
vesting of equity awards or severance payments in the event of a change of control of Zillow andlor termination of the executive officer's
employment with Zillow under specified circumstances. These plans and agreements are described below as they apply to each named
executive officer.

2011 Plan. Our 2011 Plan provides that in the event of a change of control that is a company transaction, outstanding stock options will only
become fully vested and immediately exercisable to the extent they are not convelted, assumed, substituted for or replaced by the surviving or
successor company (including a parent company thereof). In the event of a change of control that is not a company transaction, all outstanding
stock options granted under the 2011 Plan will become fully vested and immediately exercisable. The 2011 Plan defines "change of control" as
the OCCUITence of any of the following events:

an acquisition by a person or entity of beneficial ownership of more than 50% of the combined voting power of our outstanding
voting securities (generally excluding any acquisition directly from Zillow, any acquisition by Zillow, any acquisition by an
employee benefit plan of Zillow or a related company, any acquisition by holders of our Class B common stock as of July 19,2011,
provided such holder then beneficially owns no less than 25% of our outstanding voting securities, or an acquisition pursuant to
certain related patty transactions);

a change in the composition of the board of directors during any two-year period such that the individual s who, as of the beginning
of such two-year period, constitute the board (the " [ncumbent Board") cease for any reaso n to constitute at least a majority of the
board (ex cluding directors whose election, or nomination for election, was approved by a majority of the [ncumbent Board); or

the consummation of a company tran saction , which is generally defined as a merger or consolidation, a statutory share exchange or
a sale, lease, exchange or other transfer in one transaction or a se ries of related tran saction s of all or sub stantially all of our assets,
unless (a) after such transaction the beneficial owners of outstanding voting sec uritie s immediately prior to the transaction retain at
least 50% of the combined voting power of such securities of the company resulting from the transaction, (b) no entity beneficially
owns more than 50% of the combined voting power of the company resulting

34

SM 0918

Table of Contents
from such transaction and (c) the individuals who were members of the Incumbent Board will immediately after the consummation
of such transaction constitute at least a majority of the members of the board of directors of the company resuitjng from such
transaction.

2005 Plan. Our 2005 Plan provides that if outstanding stock options will not be assumed or substituted in a company transaction that is not a
related party transaction, our board of directors or the compensation committee may, in its discretion , fully or partially accelerate the vesting of
all outstanding stock options. The 2005 Plan defines the term "company transaction" (including celtain exclusions for related party
transactions) as the occurrence of any of the following events:

our merger or consolidation with or into any other company or other entjty;

a statutory share exchange pursuant to which our outstanding shares are acquired or a sale in one transaction or a series of
transactions undertaken with a common purpose of acquiring all our outstanding voting securities; or

a sale, lease, exchange or other transfer in one transaction or a series of related transactjons of all or substantially all of our assets.

Our 2005 Plan defines the term " related party transaction" to generally mean:

a merger or consolidation, or a statutory share exchange, in which holders of our outstanding voting securities immediately prior to
the merger, consolidation or share exchange hold at least a majority of the outstanding voting securities of the successor company
thereafter;

a sale, lease, exchange or other transfer of all or substantially all our assets to a majority-owned subsidiary; or

a transactjon undertaken for the principal purpose of restructuring our capital, including, but not limited to , a reincorporation in a
different jurisdictjon.

Certain Stock Option Agreements with Mr. Rascof!

[f stock options are assumed or substituted in a company transaction, celtain stock


options granted to Mr. Rascoff under our 2005 Plan will become fully vested and exercisable if his employment terminates (a) in connection
with a company transactjon or (b) within 18 months following a company transaction, unless, in each case, employment is terminated for cause
or by the named executive officer without good reason. For purposes of these stock options, "good reason" generally means:

substantial reduction in Mr. Rascoffs status, title, positjon or responsibilities ; the assignment to Mr. Rascoff of duties or
responsibilities that are materially inconsistent with such status, title, position or respons ibilities; or any removal from or failure to
reappoint Mr. Rascoff to such position (with exceptions for terminations of employment due to cause, death or disability or by
Mr. Rascoff for other than good reason);

reduction in annual base salary;

relocation outside a 50-mile radius of the place of employment prior to the company transaction ;

failure to receive compensation and benefits that are substantially equivalent to those provided prior to the company transaction;

material breach by the successor company of its obligations under the 2005 Plan (or a substantially equivalent plan); and

purported termination for cause that is not consistent with the definition of "cause" in the 2005 Plan. Under the 2005 Plan, "cause"
generally means dishonesty, fraud, serious or willful misconduct, unauthorized use or disclosure of confidenthl information or trade
secrets, or conduct prohibited by law (exce pt minor violatjons).

35

SM0919

Table of Contents

Employment Agreements. We have entered into an employment agreement, effective as of July 25, 2011, with each of Messrs. Rascoff and
Cohen and Ms. Philips. The employment agreements provide for severance payments and benefits if the executive officer's employment is
terminated by us without cause or if he or she resigns for good reason, including such a termination in connection with or within 18 month s
after a change of control. As a condition to receiving any severance payments or benefits under the employment agreements, the executive
officers mu st execute a general release and waiver of all claims against us in a form sati sfactory to Zillow. They mu st also continue to comply
with the applicable term s of their confidentiality and noncom petition agreements.
A de scription of the severance payments and benefits under the employment agreements is described above in the sec tion entitled "Named
Executive Officer Compensation - Compensation Discuss ion and Analysis - Elements of Executive Compensation - Employment
Agreements."
For purposes of the employment agreements, "change of control" has the meaning set forth above for the 2011 Plan. "Cause" generally means
one or more of the following by the executive officers:

willful mi sco nduct, insubordination or dishonesty in the performance of duties or a knowing and material violation of Zillow's or a
successo r employer's policies and procedures that results in a material adverse effect on Zillow or a succe sso r employer;

continued failure to satisfactorily perform duties after receipt of written notice from Zillow;

willful actions in bad faith or intentional failures to act in good faith that materially impair Zillow's or a succe sso r employer's
business, goodwill or reputation ;

conviction of a felony or mi sde meanor, conduct that Zillow reasonably believes violates any statute, rule or regulation governing
Zillow, or conduct that Zillow reasonably believes constitutes unethical practices, di shonesty or di sloyalty and that results in a
material adverse effect on Zillow or a successor employer;

CUITent use of illegal sub stances; or

any material violation of the employment agreement or Zillow 's Confidential lnformation, lnventions, Nonsolicitation and
Noncompetition Agreement.

The employment agreements generally define "good reaso n" as one or more of the following conditions without the executive officer's express,
written consent, provided that the executive officer provides timely notice of such condition to Zillow and Zillow has the oppOitunity to cure
such condition prior to the executive officer's termination of employment:

a material reduction in authority, duties or responsibilities;

a material reduction in annual salary or bonus oppOitunity (except for a reduction in connection with a general reduction in annual
salary for all executive officers by an average percentage that is not less than the percentage reduction of the executive officer's
annual salary);

a material breach of the employment agreement by Zillow or a successor employer; or

relocation or travel more than 50 miles from the executive officer's then CUITent place of employment in order to continue to
pelform the duties and re sponsibilities of position (not including customary travel as may be required by the nature of the position).

Potential Payments Upon Termination or Change of Control Table


The following table shows the estimated value of benefits upon termination of employment or a change of control that would have accrued to
the named executive officers if (i) their employment was terminated without cause or they terminated employment for good reaso n, (ii ) we
completed a change of control or a company

36

SM0920

Table of Contents
tran sac tion, as applicable, in which outstanding stock options were not assumed or substituted by the surviving or successo r company, or
(i ii) their employment was terminated without cause or by the named executive officers for good reaso n in connection with or follow ing a
change of control in which stock options were assumed or sub stituted. The amounts in the tabl e assume that the terminati on of employment,
change of control, or company tran saction was effective as of December 31,2013. The amounts are estimates of the incremental amounts that
would have accrued as of December 31, 2013 in the foregoing circumstances. The actual amounts can only be determined at the time of an
actual termination of employ ment, change of control, or company tran saction.

Name

Benefit

Spencer M. Rascoff

Chad M. Cohen

David A. Beitel

Kathleen Philips

Greg M. Schwartz

(1)
(2)
(3)
(4)
(5)

Termination Without
Cause or for
Good Reason

Full Acceleration of
Options in a Change of
ControllNo
Assumption or
Substitution in a
Company Transaction

Termination without
Cause or for Good
Reason In Connection
"ith a Change of
Control or Company
Transaction

($)

($)

($)

Cash Severance( I)
Stock Option Acceleration(2)
COBRA Benefit(5)
Total

242,820
13,026,067(3)
8,927
13,277,8 14

Cash Severance( I)
Stock Option Acce leration(2)
COBRA Benefit(5)
Total

177,897
2,611,887(3)
5,634
2,795,418

Cash Severance
Stock Option Acceleration(2)
COBRA Benefit
Total

Cash Severance( I)
Stock Option Acce leration(2)
COBRA Benefit(5)
Total
Cash Severance
Stock Option Acceleration(2)
COBRA Benefit
Total

55,640,221
55,640,221
3,992,777
3,992,777

242,820
28,109,138(4)
8,927
28,360,885
177,897
1,996,389(4)
5,634
2,179,920

4,833,332
4,833,332
190,417
2, 108,730(3)
3,5 19
2,302,666

3,547,449
3,547,449

190,4 17
1,773 ,724(4)
3,519
1,967,660

4,780,769
4,780,769

Amount reflects cash severance of six months' salary based on the executive officer's 2013 base salary as of December 31 , 2013.
Calculated by multipl y ing the number of option share s subj ect to acceleration by $81.73 (the closing price of our common stoc k as of
December 3 1,2013 , the last trading day of 2013) less the per share option exercise price.
Amount reflects the value of 12 month s' accelerated vesting of un vested stock options.
Amount reflects the value of accelerated vesting of 50% of unvested stoc k options, except for Mr. Rascoff' s stock option granted on
March 12,2010 for which he would be entitled to full acceleration o f vesting.
Amount reflects the estimated cost of COBRA continuation coverage for six month s.

37

SM0921

EXHIBITB

SM0922

MorningstarDocument Research sM
FORMDEF 14A
MOVE INC - N/A
Filed: April 24, 2014 (period: June 11, 2014)
Official notification to shareholders of matters to be brought to a vote (Proxy)

The information contained herein may not be copied, adapted or distributed and is not warranted to be accurate, complete or timely. The user
assumes all risks for any damages or losses arising from any use of this information, except to the extent such damages or losses cannot be
limited or excluded by applicable law. Past financial performance is no guarantee of future results .

SM0923

QuickLinks -- Click here to rapidly navigate through this document


UNITED STA TES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of
the Securiti es Exchange Act of 1934 (Amendment No.
Filed by the Registrant ~
Filed by a Party other than the Registrant 0
Check the appropriate box:

Preliminary Proxy Statement

Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
Detlniti ve Proxy Statement

Detiniti ve Additi onal Material s

So li citing Material under 240. 14a- 12

Move, Inc.
(Name of Registrant as Speci ti ed In Its Charter)

(Name of Person(s) Filing Proxy Statement, if otherthan the Registrant)


Payment of Filing Fee (Check the appropriate box):
No fee req uired.

Fee computed on tabl e below per Exchange Act Rules 14a-60)( I ) and 0-11.
( I)

Title of each class of securities to which tran saction applies:

(2)

Aggregate number of securities to whi ch tran saction applies:

(3)

Per unit price or other underlying va lue of tran sacti on computed pursuant to Exchange Act Rul e Q- II (set
forth the amount on whi ch the tIling fee is calculated and state how it was determined):

(4)

Proposed max imum aggregate value of transaction:

(5)

Total fee paid:

Fee paid previou sly with preliminary materia ls.

Source: MO\IE INC, DEF 14A, April 24. 2014

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The information contained lIerein m~ynot be copied, ad;,pted or distributed ~nd is not WMTaIlted to be accurate, complete or timely. The usei' assumes~11 risks for ~nydNnages or losses Nising from anyuSfl of tS A1.~~9

except to the extent sucll dNnages or lossesca'lnot beliroited orexduded by ;,pplicablel_. Past financial perlOmJallc. is no gUM"allt.. of future results.
IVI V

'24

Check box if any part of the fee is otlset as provided by Exchange Act Rule 0- 11 (a)(2) and identify the ti ling fo r
which the offsetting fee was paid previously. Identify the previous tlling by registration statement number, or the
Form or Schedul e and the date of it s ti ling.
( 1)

A mount Previously Paid:

(2)

Fonn, Sc hedule or Registration Statement No.:

(3)

Filing Party:

(4)

Date Fil ed:

Source: MO\IE INC, DEF 14A, April 24. 2014

Powered by Mnningslar' Document Research SM

The information contained herein m~ynot be copied, ad;,pted or distributed ~nd is not WMTaIlted to be accurate, complete or timely. Th" usei' assumes~11 risks for ~nydNnag.s of losses M'ising from anyuSfI of
except to th" extent such damages of /ossesca'lnot be/imited ofexduded by ;,pplicablel_. Past financial perlOmJallc. is no gU2I'aIltee of future results.

'S'IVI

A1.~~9

'25

Move, Inc.

10 Almaden Boulevard, Suite 800


San Jose, California 95113

NOTICE OF ANNUAL MEETING OF STOCKHOLDERS


To Be Held June 11 , 2014

To Our StockllOlders:

Th e annu al meetin g of stock holders of Move, In c., a De laware corpo rati o n, will be held o n Jun e 11 ,20 14, at 9:30 a. m., loca l time, at the
Company's offices located at 10 A lmaden Bl vd., Suite 800, San Jose, Cali fo rni a 95 11 3, for the foll owing purposes:
I.

To elect the six di rectors nominated for electi on by the Governance and Nominating Committee of our Board of Directors, as li sted in the
enclosed proxy statement, each to serve for a term through the annual meetin g o f stock ho lders in 20 15 and until th eir respecti ve
successors have been duly elected and qualified;

2.

To ratify the appointment of Move, Inc:s independent registered publi c accounting tinn for the ti sca l year ending December 3 1, 20 14;

3.

To approve, on an advisory bas is, the compensati on pa id to Move, Inc.'s Named Executi ve Otricers; and

4.

To transact such other bu siness as may properly come before the meetin g or any postponement or adjournment thereof.

The foregoing matters are descri bed in more detail in the enclosed proxy statement. Onl y stockholders of record at the close of bu siness on the
record date, April 14,20 14, areentit1ed to receive notice of and vote at the annual meeting or any postponement or adj ournment thereof.
Pursuant to rules promul gated by the Sec urities and Exchange Commi ssion, we are providing access to our proxy mate ri als over the Internet. On
or abo ut April 30, 20 14, we will mail o ur stockh olders a Noti ce Regarding Avail ab ility of Proxy Mate ri als (th e "Notice"), in connecti on with the
soli citati on of prox ies by our Board of Directors for use at the annual meeting of stockholders and any adj ournments or postponements thereof. O n or
before the date o f mailing, we will make our Proxy Statement, including thi s Notice of Annual Meetin g, and the Annual Report, publi cly avail able on
the Internet so that it is accessible according to the in structi ons prov ided in the Noti ce. The Noti ce will in struct you as to how you may access and
review all of the important info rmati on contained in the proxy materials. The Noti ce will also in struct yo u as to how you may sub mit your proxy over
the Internet or by mail , in cluding how to receive a printed copy of our proxy materi als.
By Order of the Board of Directors,

JAMES S. CA ULFIELD
Execl/title Vice President, General COllllsel
and SecretGlY
Westl ake Vill age, California
April 24 ,20 14

Whether or not you plan to attend the annual meeting, yOUi' vote is very important, and we encoura ge you to vote promptly. If you execute a proxy
over the Internet or by mailing in a pl'oxy card, but later decide to attend the annual meeting in person, or for any other I'eason desire to revoke
your proxy, you may do so at any time before yOUi' proxy is voted.

Source: MO\IE INC, DEF 14A, Apri124. 2014

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The information contained lIerein m~ynot be copied, ad;,pted or distributed ~nd is not WMTaIlted to be accurate, complete or timely. The usei' assumes~11 risks for ~nydNnages or losses Nising from anyuSfl of tS A1.~~9

except to the extent sucll dNnages or lossesca'lnot beliroired orexduded by ;,pplicablel_. Past financial perlOmJallC<l is no gUM"allt.. of future results.
IVI V

'26

EXECUTIVE COMPENSA TI O N
The fo ll ow ing compensati on tables should be read in conjunction with the "Compensation Di sc ussion and Analysis" above.

Summary Compensation Table


The foll owing tab le sets forth all compensati on paid for services in the years presented to our chief executi ve oftker, chief tlnanci al oftl cer and our
other th ree executi ve oftlcers who served during 20 13. We collectively refer to these persons as the "Named Executi ve Officers."

So,.'"

'"

Nam.ond Pclnclp. 1 Position

\ ' . ac

Steven H. Berkowitz
Chief E xecutive

20 13 555,000
20 12547.459

Officer

Chief Financial
Officer(5)

r<on, F.q ulty

A nn!>

Option

1""" nU... Plan

Aurn.

(" .. ""."",, 100

~
7()9'sOO
648,000

~~

All Dlh. c

Con,,,.,,,,,'Io,,

To','

~ --"-'-

1.142.9 -M

390.960
5 13.384

3.00) 2.753 ,683

723.600

1.041.840
1.1 79. 180

302,39 ..

2.500 2.732.674

20 1334 1.000

283.SOO

457 .1 78

136.3 11

20 12 338.205
20 11

657.000

74 1.580

157 .713

3.500
3.00)

283.SOO
936.000(7)
20 1.000

457 .1 78
289.400
327.550

--{6)
295.775
1% ,482

151.360

243.828

11 1.94 2

807 .1 30

20 12293.7 16
432.000
20 I I 275.000 66.000(8) 20 1.000

138.9 12
196,530

138.764
100.254

1.003.)92
838.784

3.500 1.11 0.304


3.00) 2.744.570

20 II 525.000

Rachel Glaser

--'"

,-

Errol Sall.uelson
20 13 350.000
Chief Strategy O fficer: 20 12343.7 16
President 20 11 325.000

3.500 2.80 1.9()..I

1.221.789
1.897.498

24.284 1.11 5.262


9 .1 8 1 1.874 .07:3;7)
9.585 1.059.6 17

realior.colJ.(6)
James S. Caulfield
Executive Vice
President. General

20 13 300.000

Counsel & Secretary


John Robison
Chief Technology
Officer(9)

( I)

20 13 325.000

283.SOO

365.742

132.262

20 12 286.817
20 11

876.000

1.448.675

130,078

Stock Awards. Refl ects the aggregate grant-date fair va lue of time-based RSUs and RSAs g ranted in the app licable year, as
determined in accordance with FASB ASC Topic 7 18, based on the grant date va lue of the shares.

(2)

Opti on Award s. Refl ects the aggregate grant-date fair value o f optio n awards granted in the applicable year, as determined in
accordance with FASB ASC Topi c 7 18. The ass umptions used in determining the fair values of the stock opti ons are set forth in
Note 13, "Stock Plans," to the Company's Co nso lidated Financial Statements, whi ch are included in o ur Annu al Re port o n
Form 10-K for the year ended December 3 1,20 13, fi led with the Securiti es and Exchange Commi ssion on February 18,20 14.

(3)

Refl ects annual cash incenti ve awards earned based on pe rformance. For information regarding our 20 13 annual cash in centive
program, see the "Executi ve Compensati on for 20 13" di scussion in the "Compensati on Di scuss ion and Analysis" section of thi s
proxy statement.

(4)

For 20 13, the amounts include: (i ) for each Named Executi ve Off1cer, Company matching contributi ons to the 40 1(k) plan (or the
equi valent plan in Canada), whi ch are fu ll y vested for each such executi ve; and (i i) for Mr. Samuelson, fitn ess club dues of $235
and Co mp any-p aid tra ve l fo r hi s fami ly o f $20,329, ag reed to up on hi s pro moti o n in Fe bru a ry 2007 to Pres ident o f
rea ltoLcom.

(5)

Ms. Glaser became our Chief Financial Off1cer on January 4, 20 12.

(6)

Mr. Samuelson was not paid a bonu s for 20 13 because he resigned from the Company pri or to March 7,20 14, the date on whi ch
bonuses earned in 20 13 were paid .

38

Source: MO\IE INC, DEF 14A, April 24, 2014

Powered by Mnningstar Oocument Research SM

The information contained lIerein m~ynot be copied, ad;,pted or distributed ~nd is not WMTaIlted to be accurate, complete or timely. The usei' assumes~11 risks for ~nydNnages or losses M'ising from anyuSfl of tS ' A1.~~9

except to the extent sucll dNnages or lossesca'lnot beliroited orexduded by ;,pplicablel_. Past financial perlOmJallc. is no gUM'allt.. of future results.
IVI V

'27

EXHIBIT C

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Recent News

Zillow Announces Acquisition of Trulia for $3.5 Billion in Stock


Combination of companies sets stage to offer more real estate tools and services that empower consumers and
drive more business for real estate professionals

Previous Releases I Next Releases


SEATTLE and SAN FRANCISCO, July 28, 2014/PRNewswire/-- Zillow, Inc. (NASDAQ: Z) today
announced that it has entered into a definitive agreement to acquire Trulia, Inc. (NYSE: TRLA) for
$3.5 billion in a stock-for-stock transaction. The Boards of Directors of both companies have
approved the transaction, which is expected to close in 2015.
The combined company will maintain both the Zillow and Trulia consumer brands, offering
buyers, sellers, homeowners and renters access to vital information about homes and real estate
for free, and providing advertising and software solutions that help real estate professionals grow
their business. At closing, Trulia CEO Pete Flint will remain as CEO of Trulia reporting to Zillow
CEO, Spencer Rascoff, and will join the Board of Directors of the combined company. In addition,
at closing, a second member of Trulia's Board of Directors will join the board of the combined
company. Further operational and organizational details will be announced at closing.
"Consumers love using Zillow and Trulia to find vital information about homes and connect with
the best local real estate professionals," Rascoff said. "Both companies have been enormously
successful in creating compelling consumer brands and deep industry partnerships, but it's still
early days in the world of real estate advertising on mobile and Web. This is a tremendous
opportunity to combine our resources and achieve even more impressive innovation that will
benefit consumers and the real estate industry."
"Trulia and Zillow have a shared mission and vision of empowering consumers while helping real
estate agents, brokerages and franchisors benefit from technological innovation," said Flint. "By
working together, we will be able to create even more value for home buyers, sellers, and renters,
as well as create a robust marketing platform that will help our industry partners connect with
potential clients and grow their businesses even more efficiently. Our two companies share
complementary employee cultures with innovative, consumer-first philosophies and a deep
commitment to create the best products and services for our industry partners."
Both Zillow and Trulia are primarily media companies, generating the majority of revenue through
advertising sales to real estate professionals. Despite continued growth as public companies,
significant opportunities of scale remain as the majority of advertising dollars in the real estate
sector have yet to migrate online or to mobile. For example, the two companies' combined
revenue currently represents less than 4 percent of the estimated $12 billion[i] real estate
professionals spend on marketing their services to consumers each year.
Zillow and Trulia are two rapidly growing real estate sites on mobile and the Web, enabling
advertisers to reach a large and expanding consumer base. In June, Zillow reported a record 83
million unique users across mobile and Web[ii]. For the same month, Trulia reported a record 54
million monthly unique users across its sites and mobile apps[iii]. The two brands have limited
consumer overlap - approximately half of Trulia.com's monthly visitors do not visit Zillow.com , and
approximately two-thirds of Zillow.com's monthly visitors across all devices do not use Trulia.com
[iv]. Maintaining the two distinct consumer brands will allow the combined company to continue to
offer differentiated products and user experiences, attract more users and maximize the
distribution of free content across multiple platforms, apps and channels.
A summary of expected benefits of the deal, include:

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Faster Innovation. By combining resources, the companies expect to accelerate


innovation on mobile and Web to provide more valuable tools and services to consumers
and professionals.
Greater Access to Free Real Estate Market Data. The companies expect to share real
estate market data, housing trend analysis, and forecasts to make more free data available
to consumers and real estate professionals to empower people to make more informed
decisions.
Broader Distribution. Home sellers and their agents, brokerages, and participating MLSs
will benefit from seamless free distribution of listings across even more platforms to reach
an even larger audience of consumers.
Enhanced Value and ROI for Advertisers. The companies expect to offer shared
services and marketing platforms for advertisers that enhance agent productivity and
marketing and deliver greater return on their investment.
Corporate Cost Savings. By operating independent consumer brands through one
corporation, the companies expect to realize synergies to improve overall operational
efficiency over the long-term. By 2016, management expects to achieve at least $100
million in annualized cost avoidances.
Transaction Details
As part of the agreement, Trulia shareholders will receive 0.444 shares of Class A Common
Stock of Zillow, Inc.[v] for each share of Trulia, and will own approximately 33% of the combined
company at closing. Current Zillow holders of Class A Common Stock and Class B Common
Stock will receive one comparable share of the combined company at closing, and will represent
approximately 67% of the combined company. The transaction assumes Trulia's convertible
notes will be assumed by the combined company at closing. The value of the deal represents a
premium of 25% to Trulia's closing price on July 25, 2014.
The agreement is subject to the satisfaction of customary closing conditions, including the
expiration of U.S. antitrust waiting periods and shareholder approval of both companies. Zillow co
-founders Rich Barton and Lloyd Frink, who control a majority of the shareholder voting power of
Zillow, have agreed to vote in favor of the transaction. In addition, Trulia directors holding 7.4% of
Trulia stock have entered into voting agreements with Zillow to vote in favor of the transaction.
Representation
Goldman, Sachs & Co. acted as the exclusive financial advisor, and Shearman & Sterling LLP
and Perkins Coie LLP acted as legal counsel to Zillow. J.P. Morgan Securities LLC acted as a
financial advisor, and Goodwin Procter LLP and Wilson Sonsini Goodrich & Rosati acted as legal
counsel to Trulia. Qatalyst Partners LP also acted as a financial advisor to Trulia.
Conference Call to Discuss ACquisition at 9 a.m. EDT 16 a.m. PDT
Zillow CEO Spencer Rascoff will host a conference call today with Trulia CEO Pete Flint at 9:00
a.m. EDT 16:00 a.m. PDT. The live webcast of the conference call will be available on the
investor relations section of Zillow, Inc.'s website at http://investors.zillow.com/, or on the investor
relations section of Trulia, Inc's website at http://ir.trulia.com/. For those without access to the
Internet, the call may be accessed toll-free via phone at 877-643-7152I@ with conference 10#
80954780. Callers outside the United States may diaI443-863-7921 I@ with conference 10#
80954780. Following completion of the call, a recorded replay of the webcast and a copy of the
prepared remarks will be available on the investor relations section of Zillow, Inc.'s and
Trulia.com's websites for one year.
Company Conference Calls for Quarterly Earnings
The companies will host separate conference calls to discuss each company's second quarter
results. The calls will be held on the following dates:

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Z-NASDAQ

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Trulia: July 31,2014, at 5 p.m. EDT /2 p.m. PDT. The call details will be available
announced separately, and will be available on Trulia's investor relations website at
ir.trulia.com.
Zillow: August 5, 2014 at 5 p.m. EDT /2 p.m. PDT. The call details will be announced
separately, and will available on Zillow's investor relations website at investors.zillow.com.

Forward-Looking Statements

This press release contains forward-looking statements within the meaning of Section 27 A of the
Securities Act of 1933 and Section 21 E of the Securities Exchange Act of 1934 that involve risks
and uncertainties, including, without limitation, statements regarding Zillow's proposed acquisition
of Trulia and the expected benefits of the transaction; operational and organizational details of the
combined company; the way in which the transaction will impact consumers, real estate
professionals, and industry partners; the ability of the combined company to innovate; our ability
to realize opportunities of scale; the migration of advertising dollars in the real estate sector to
online and mobile; the growth rate of Zillow and Trulia; and our ability to deliver greater return on
investment to our advertisers. Statements containing words such as "may," "believe," "anticipate,"
"expect," "intend," "plan," "project," "will," "projections," "estimate," or similar expressions
constitute forward-looking statements. Such forward-looking statements are subject to significant
risks and uncertainties and actual results may differ materially from the results anticipated in the
forward-looking statements. Factors that may contribute to such differences include, but are not
limited to, the risk that expected cost savings or other synergies from the transaction may not be
fully realized or may take longer to realize than expected; the risk that the businesses may not be
combined successfully or in a timely and cost-efficient manner; the possibility that the transaction
will not close, including, but not limited to, due to the failure to obtain shareholder approval or the
failure to obtain governmental approval; and the risk that business disruption relating to the
merger may be greater than expected. The foregoing list of risks and uncertainties is illustrative,
but is not exhaustive. Additional factors that could cause results to differ materially from those
anticipated in forward-looking statements can be found under the caption "Risk Factors" in
Zillow's Annual Report on Form 10-K for the year ended December 31,2013, Trulia's Quarterly
Report on Form 10-Q for the quarterly period ended March 31, 2014, and in Zillow's and Trulia's
other filings with the Securities and Exchange Commission. Except as may be required by law,
neither Zillow nor Trulia intend, nor undertake any duty, to update this information to reflect future
events or circumstances.
Additional Information and Where to Find It
In connection with the proposed transaction, Zillow and Trulia will file a joint proxy
statement/prospectus with the Securities and Exchange Commission, and the new holding
company will file a Registration Statement on Form S-4 with the Securities and Exchange
Commission. INVESTORS AND SECURITYHOLDERS ARE URGED TO READ THE
REGISTRATION STATEMENT AND JOINT PROXY STATEMENT/PROSPECTUS (INCLUDING
ANY AMENDMENTS OR SUPPLEMENTS THERETO) REGARDING THE PROPOSED
TRANSACTION WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN
IMPORTANT INFORMATION. Investors and security holders will be able to obtain free copies of
the registration statement and joint proxy statemenUprospectus (when they become available)
and other documents filed by Zillow and Trulia at the Securities and Exchange Commission's web
site at www.sec.gov. Copies of the registration statement and joint proxy statemenUprospectus
(when they become available) and the filings that will be incorporated by reference therein may
also be obtained, without charge, from Zillow's website, www.zillow.com . under the heading
"Investors" in the "About" tab or by contacting Zillow Investor Relations at
(206) 470-71371@. These documents may also be obtained, without charge, from Trulia's
website, www.trulia.com . under the tab "Investor Relations" or by contacting Trulia Investor
Relations at (415) 400-72381@.
Participants in Solicitation

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Page 4 of5

The respective directors and executive officers of Zillow and Trulia and other persons may be
deemed to be participants in the solicitation of proxies in respect of the proposed transaction.
Information regarding Zillow's directors and executive officers is available in its proxy statement
filed with the SEC by Zillow on April 17, 2014, and information regarding Trulia's directors and
executive officers is available in its proxy statement filed with the SEC by Trulia on April 22, 2014.
Other information regarding the participants in the proxy solicitation and a description of their
direct and indirect interests, by security holdings or otherwise, will be contained in the joint proxy
statement/prospectus and other relevant materials to be filed with the SEC (when they become
available). These documents can be obtained free of charge from the sources indicated above.
About Zillow, Inc.
Zillow, Inc. (NASDAQ:Z) operates the leading real estate and home-related information
marketplaces on mobile and the Web, with a complementary portfolio of brands and products that
help people find vital information about homes, and connect with the best local professionals.
Zillow's brands serve the full lifecycle of owning and living in a home: buying, selling, renting,
financing, remodeling and more. In addition, Zillow offers a suite of tools and services to help
local real estate, mortgage, rental and home improvement professionals manage and market their
businesses. Welcoming 83 million unique users in June 2014, the Zillow, Inc. portfolio includes
Zillow.com, Zillow Mobile, Zillow Mortgage Marketplace, Zillow Rentals, Zillow Digs, Postlets,
Diverse Solutions, Agentfolio, Mortech, HotPads, StreetEasy and RetslyTM The
company is headquartered in Seattle.
Zillow.com , Zillow, Postlets, Mortech, Diverse Solutions, StreetEasy, Agentfolio and Digs are
registered trademarks of Zillow, Inc. HotPads and Retsly are trademarks of Zillow, Inc.
About Trulia, Inc.
Trulia (NYSE: TRLA) gives home buyers, sellers, renters and real estate professionals all the
tools and valuable information they need to be successful in the home search process. Through
its innovative mobile and web products, Trulia provides engaged home buyers and sellers
essential information about the house, the neighborhood and the process while connecting them
with the right agents. For agents, Trulia, together with its MarketLeader subsidiary, provides an
end-to-end technology platform that enables them to find and serve clients, create lasting
relationships and build their business. Founded in 2005, Trulia is headquartered in San Francisco
with offices in New York, Denver and Seattle. Trulia and the Trulia marker logo are registered
trademarks of Trulia, Inc.
(ZFIN)
[i] Source: Borrell Associates Real Estate Advertising 2013 Outlook, reflecting combined
advertising spent by real estate agents, home builders, and rental property managers.
[ii] Zillow measures unique users with Google Analytics.
[iii] Source: Omniture, Google Analytics, June 2014
[iv] Source: comScore Multiplatform Cross-Visiting, June 2014
[v] Upon closing, shares of Zillow, Inc. and Trulia, Inc. common stock will be exchanged for
common stock of a newly formed holding company.

SOURCE Zillow, Inc.


News Provided by Acquire Media

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Z-NASDAQ

2015 Zillow Group, Inc.


iPhone Investor Home

I View Complete IR Website

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EXHIBITD

SM0934

Zillow to Buy Trulia for $3 .5 Billion in All-Stock Deal - NYTimes.com

Page I of3

NYTNOW

Zillow to Buy TruHa for $3.5 Billion in All-Stock Deal


By Michael J. de la Merced

July 28, 2014 8:31 am


Related Links

The news release


Updated, 8:05 p.m. I
For much of the last nine years, Zillow and Trulia have competed in the online real
estate listings market they helped create.
But after a speedy six-week courtship, the two are set to combine forces.
Zillow agreed on Monday to buy Trulia for about $3.5 billion in stock, creating a
giant online repository of real estate listings and home values.
Under the terms of the deal, Zillow will pay 0-444 of one of its shares for each
share of Trulia. Based on Friday's closing prices, the takeover bid is worth $70.53 a
Trulia share, a premium of roughly 25 percent.
Together, the two will dominate the traffic for online home listings. Last month,
Zillow reported 83 million users, while Trulia reported 54 million - a combined 61
percent of total Internet users for the category, according to the research firm
comScore.
"The companies know each other very well," Spencer Rascoff, Zillow's chief
executive, said in a telephone interview. "We've been competitors and rivals for nine
years, but I've always had respect for them."
Zillow has already become one of the best-known players in the market through
its widely quoted "Zestimates" of how much a property is worth, a feature
particularly popular among homeowners. Trulia, on the other hand, has tools that
tend to draw more potential sellers and buyers.

http://dealbook.nytimes.com/20 14/07128Izillow-to-buy-trulia-for-3-5-billionl?

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Zillow to Buy Trulia for $3 .5 Billion in All-Stock Deal - NYTimes.com

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According to Mr. Rascoff, that has meant relatively little overlap, with about half
of Trulia's web users not visiting Zillow.
Mr. Rascoff said he first approached Trulia about a potential acquisition about
six weeks ago. The initial response was not dismissive - though Trulia said that it
had not intended to put itself up for sale - and management asked what Zillow had
in mind.
"Both companies are coming at this from a lot of strength and momentum," Mr.
Rascoff said. "When we approached them, I think they were both very open-minded
about it."
Trulia's management team, led by Pete Flint, ultimately proved willing to
negotiate, but requested that it be an all-stock deal to give Trulia's shareholders a
chance to benefit from the merger. (In the interest of keeping negotiations secret,
both sides used code names: Zillow was "Zebra," while Trulia was "Tiger." The
password to access the electronic data room was "jungle.")
Existing Trulia shareholders will own about a third of the combined company.
Mr. Flint will stay on and report to Mr. Rascoff, and he and another Trulia director
will join Zillow's board.
Together, the two companies expect to realize about $100 million in cost savings
by 2016. The newly enlarged Zillow will offer more options for advertisers and for
sellers and real estate agents to list home offerings, while combining the two
companies' nascent rental search services.
Mr. Rascoff said he did not expect the merger to face opposition from antitrust
regulators. The revenue of the merged company - $341.2 million based on last
year's data - represents only a small part ofthe $12 billion he estimates the real
estate industry spends on marketing each year.
Moreover, he argues, the real estate industry is highly fragmented, with scores
oflocal sites for each city.
Both Zillow and Trulia have sought to combat that by making other acquisitions.
In the last year, Zillow bought both the New York-focused StreetEasy and the

http://dealbook.nytimes.com/20 14/07128Izillow-to-buy-trulia-for-3-5-billionl?

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apartment search site HotPads, while Trulia bought Market Leader last spring for
$310 million.
Zillow and Trulia will continue to compete until the deal closes, which is
expected to happen sometime next year.
Zillow was advised by Goldman Sachs and the law firms Shearman & Sterling
and Perkins Coie. Trulia was advised by JPMorgan Chase and Qatalyst Partners the investment bank co-founded by Frank Quattrone - as well as the law firms
Goodwin Procter and Wilson Sonsini Goodrich & Rosati.
Zillow's stock closed on Monday at $160.32, up less than 1 percent. Trulia
shares closed at $65.04, up 15-4 percent.

2015 The New York Times Company

http://dealbook.nytimes.com/20 14/07128Izillow-to-buy-trulia-for-3-5-billionl?

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EXHIBITE

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Zillow Acquires Trulia For $3.5 Billion - Zillow (NASDAQ:Z) I Seeking Alpha

Seeking Al p ha

Page I of2

a.

Zillow Acquires Trulia For $3.5 Billion


Jul. 28, 2014 2:18 PM ET
by: Options Calling

Summary
Zillow will pay 0.444 of its share price for each Trulia share, which based on Friday's closing comes in at
$70.53 per Trulia share, close to a 25% premium.
Barclays Analyst Christopher Merwin believes a merger would "dramatically increase the combined entity's
pricing power."
Around 25% of U.S. real estate agents use Zillow or Trulia, providing a strong outlook for continued market
share penetration.
Zillow (NASDAQ:;:::) agreed on Monday to purchase rival Trulia (TRLA) for $3.5 Billion in stock. With this move, Zillow
will completely dominate the online real estate service, as Trulia was its closest competitor. Zillow will control more
than ~ of the online real-estate industry. Zillow will pay 0.444 of its share price for each Trulia share, which based
on Friday's closing comes in at $70.53 per Trulia share, close to a 25% premium.
Barclays Analyst Christopher Merwin believes a merger would "dramatically increase the combined entity's pricing
power" with real estate agents, and would yield more leverage in price negotiations with MLSs.
Prior to the deal, Canaccord Genuity analyst Michael Graham cited that there is a small number of investors that own

QQ!b. Trulia and Zillow.


"We note that six investors own 52 percent of Zillow and also hold 42 percent of Trulia, potentially reflecting their
desire to see consolidation."
Graham predicts and explains how Zillow will benefit from the deal;
"There are 350,000 'thought leading, high-producing' real estate agents in the U.S., only about 25%
are using either Zillow or Trulia. That could accelerate to near 80% of those agents in a 'short amount
of time' ... we continue to be struck by how early the online real estate vertical seems to be in its
development. "
Zillow's monthly unique visitors climbed 49% year over year during the month of May, while Trulia's jumped 47%
during the same time period.
Can accord Genuity believes that if Zillow and Trulia merge, the synergy would allow for rapid growth, and an
increase in the share price over time. Further, Graham suggests that the deal struck between the two companies,
"could be quite accretive to Zillow even before factoring in any revenue synergies from pricing power."

The Question of Profitability still remains.


Not all analysts are on board with the deal being such a net positive. Pointing the huge issue of profitability and the
proper way for monetization through auction oriented methods. Abe Garver, Managing Director of BG Strategic
Advisors and SA contributor said,
"At the end of the day, Zillow and Trulia have to make money (and neither do). Instead of more home
search capabilities, the focus here should have been on online auction property broker such as
Hubzu.com (parent company Altisource) or Auction.com. Acquiring an online property broker offers the
real monetization opportunity (e.g. Zillow could earn a 5% buyer's premium on each transaction)."

http;//seekingalpha.com!article/2348805-zillow-acquires-trulia -for-3 5 -b i Iii on

Zillow Acquires TTUlia For $3.5 Billion - Zillow (NASDAQ:Z) I Seeking Alpha

Page 2 of2

"From a M&A perspective we also see active real estate investor communities which represent 20%25% of the home search market (e.g. Realelfow.com) as great targets since they offer more recurring
revenue monetization opportunities."

Advertising Campaigns Can Be Consolidated


Zillow and Trulia planned to spend about $100 million this year on advertising. Zillow started advertising in 2013 for
the first time. During 2013, Zillow spent $40 million and saw great returns, as the company now boasts 52,928
Premier Agent Subscribers, a one-year growth of 56%, with an average monthly revenue per subscriber at $286, up
10% since 01 2013. Revenue generated from Premier Agent subscriptions was $46.2 million in 01, up 77% from 01
2013.
Both Zillow and Trulia see that the real opportunity is in mobile. Trulia spent a total of $71.4 million on sales and
marketing in 2013. Zacks Equity Research pointed to a possible issue with Trulia's investments in marketing
activities. Though the company is increasing the traffic to the site, these investments are decreasing the company's
margins. Trulia's operating expenses in the last quarter increased 158.3% year over year, impeding on the 127%
surge in its top line, which affected Trulia's bottom line with losses widening on a year-over-year basis. Margins will
now increase as the company is no longer competing with Zillow. Trulia's CEO Pete Flint will now report to Zillow
chief Spencer Rascoff.
Trulia's Chief Marketing Officer Kira Wampler discusses the companies aggressive strategy towards advertising
"We've got [the product] nailed, now its time to pour on the gas. At the moment no one has run away
with the market particularly in mobile."
Zillow has worked out that during the workweek, around 66% of the company's overall traffic comes from mobile
devices. That number peaks above 70% for the weekend. Investors can see why both Zillow and Trulia are going
after the mobile market. Further, this points to a key aspect that could be leveraged if the two companies merged.
They are both spending the same ad dollars going after the specific market, but more importantly they are changing
the way that home buyers and sellers are looking at the real estate market. Zillow's Chief Marketing Officer, Amy
Bohutinsky explains this trend in mobile;
"This is the way people shop for homes today. So to fuel this advertising campaign, we did, and
continue to do, an enormous amount of research where we talked to buyers around the country,
asking them what's important to them when they shop for a home? We heard loud and clear from
people. Mobile is a big part of that home search, because they're fitting it in when they're at work,
when they're on the bus, when they're sitting in bed at night on their iPad, showing it to their spouse."
The companies were targeting the same market, now they will combine their forces, as the two industry leaders
become one. This deal will help Zillow continue to grow in an industry that is still in its infancy. One can imagine the
talks between former rivals about what tactics worked for each company on improving mobile services and acquiring
premium agents. In turn, this will provide Zillow, and former Trulia shareholders, with great management, important
strategies, and valuable synergies that will create larger market share and greater profits as Zillow moves forward.
Disclosure: The author has no positions in any stocks mentioned, and no plans to initiate any positions within the
next 72 hours. The author wrote this article themselves, and it expresses their own opinions. The author is not
receiving compensation for it (other than from Seeking Alpha). The author has no business relationship with any
company whose stock is mentioned in this article.

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DEFM14A

DEFMI4A 1 d778624ddefmI4a.htm DEFM14A

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 14A
(Rule 140-101)

INFORMATION REQUIRED IN PROXY STATEMENT

SCHEDULE 14A INFORMATION


Proxy Statement Pnrsnant to Section 14(a) ofthc
Seemities Exchange Act of 1934
(Amcndment No. )
Filed by a Party other than the Registrant 0

Filed by the Registrant IRI

Check the appropriate box:


D

Preliminary Proxy Statement

Confidential, for Use of the Commission Only (as permitted hy Rule 140-6(e)(2))

IRI

Definitive Proxy SUltement

o
o

Definitive Additional Materials


Soliciting Material pursuant to 240.14a-12

ZILLOW, INC.
(Name of Registrant as Specified in its Charter)
N/A
(Name of l'erson(s)

Filin~

PJ'Oxy Statement, if Other Thall the Registrant)

Payment of Filing Fcc (Check the appropriate box):


IKl

No fee required.

Fee computed on table below per Exchange Act Rules 14a-6(i)(l) and 0-11.

(1) Title of each clao;s of securities to which transaction applies:


(2)

Aggregate number of securities

Lo

which trans8ction applies:

(3) Pcr unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set fi:llih the
amount on which the filing iCc is calculated 8nd state how it \vas determined):
(4) Proposed maximum aggregate value of transaction:
(5)

Total fee paid:

ree paid previously \vith preliminary materials.

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ill
Zillow, Inc.

trulia
Trnlia, Inc.

TO THE SHAREHOLDERS OF ZILLOW, INC AND STOCKHOLDERS OF TRULl,,-, INC


MERGER l'I{(WOSAL- YOUR VOTE IS VERY IMPORTANT
"J\'ovemhcr 17, 2014
Dear Shareholders
Zillow, Inc ("Zillow") and Trulia, Inc. (TruJia") haw entered into a merger agreement, pursuant to which Zillaw will acquire lrulia under a newly
formed holding company, currently named Zebra Holdeo, Inc. ("Hold eo"} Following successive: merger transactions (the: "mergers"), Zillow and Trulia will
become wholly owned subsidiaries of HoldeD The combined company will maintain both the Zillmv <md Trulia consumer brands, offering buyers, sellers,
homeowners and renters access to vital information ahout homes and real estate for free, and providing adverti~ing and ~ofh\iare'! solutions tllat help real estatc
professionals grow their businesse~.
Upon completion of the mergers, holders of Zillow C l a~~ A common slock will receive one share of Holdco Cla~~ A common ~tock for each share of
Zillow Class A common stock, holders of Zillow Class R common ~tock will receive one share of Holdeo Class B common stock for each share ofZillow Class
G common stock, and holders oflmlia common stock will receive 0.444 of a ~hare of Holdco Class A common stock for each share oflrulia common stock.
The Holdco Class A common stock will have'! one vote per sllare, and the Holdco Class R common stock will have ten votes per share , similar to the current
capital structure of Zillow, We anticipate that Zillow shareholders will hold approximately 67% of Holdco common stock and Trulia stockholders will hold
approximately 33% of Holdeo common stock, on a fully-diluted basis immediatcly after completion of the mergers, based on outstanding shares of common
stock, stock options, restricted stock units, and stock appreciation rights of Zillow and India, as applicable, and shares issuable upon conversion ofTrulia's
outstanding convcrtible notes, as of.lune 30,2014. The actual relative ownership percentages of the Zillow shareholders and the Trulia stockholders in Holdco
immediately after completion of the mergers will vary based on the number of outstanding shares of common stock, and securities exercisable or convertible
into common stock, ofZillow and Trulia immediately prior to completion of the mergers. Holdco intends to apply to list its Class A common stock on the
NASDAQ Global Stock Market under the symbol "Z," subject (0 official notice of i~~uance. 13ased on the outstanding ~bares ofZillow and Irulia common
stock as of October 9, 2014, and assuming no Zillow or Trulia stock options, restricted stock units, stock appreciation rights, or convertible notes are exercised,
settled, or converted, as applicable, between October 9, 2014 and lh~ eff~ctive times of the mergers, Holdco would be required to issue 51 , 188,746 shares of
Holdco Class A common stock and 6,217,447 shares of Hold co Class B common stock upon completion of the mergers
Completion of the mergcrs requires, among other things, the separate approvals of both Zillow shareholders and Trulia stockholders. To obtain these
required approvals, Zillow will hold a special meeting ofZillow shareholders on December 18,2014, and TTUlia will hold a special meeting oflrulia
stockholders on December 18, 2014. As a result of their beneficial ownership of more than a majority of the outstanding voting power of the shares ofZillow
Class A common stock and Zillow Class B common stock, Zillow's founders , Richard Garton and Lloyd Frink, will have the power to approve each of the
ZiJlow proposals without the aftirmative votc of any other Zillow shareholder. Messrs, Barton and Frink have entered into a voting agreement with each other
pursuant to which they agreed to, alllong other things, vote their shares of Zillow comlllon stock in favor of each of the Zillow proposal~

TIlE ZlLLO,-\-, AND TRULlA UOARlJS OF DIRECTORS RECOMMEND THAT YOU VOTE "FOR" THE PROI'OSALS TO API'ROVE OR
ADOPT THE MEnGER AGRREME:-JT, AS APPIJCARI,E.

Information about the special meetings, the mergel's, and the other business to be considered by Zillow
shareholders and TruHa stockholders is contained in the accompanying joint proxy statement/prospectus and the
documents incorporated by reference, which we urge you to read carefully, 1n particular, see "Risk l~ctors" beginning
on page 42 orthe accompanying joint proxy statement/prospectus.
Your votc is VCI)' impol'tant. Whcthcr or not yon plan to attend the special meeting of ZilIo\\' .<ihareholders or the .<ipecial meeting ofTl"ulia
stoc1dlOldcrs, as al)plicablc, please submit a proxy to vote your shares as soon as possible to make sure yuur shares arc reprcscnted at thc al)plieablc
~pceial mccting. Your failure to votc will have the same effect as voting "AGAIl\'ST" the prOI)Osal to approve or adopt the merger agreement, as
applicable.

Spencer Rascott"
Chief Executive Office)
ZiJjow, lnc

Peter Flint
Chief Executive Officer
Trulia, Inc.

Neither the Sccllritie~ and Exchangc Cummi~~joll nor any statc sccuritics eommi~~ion has apPl"ovcd 01" disappl"Oved the .<iceuritics to he i.<i.<iued in
connection with the melgel's 01' determined if the accompanying joint proxy statement/pl'ospectus is accurate 01" complete. Any representation 10 thc
contnlry is a criminal offcnse.

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The accomllanying joint Jlroxy statcmcnt/lirospcctus is dated l\o\'cmbcr 17, 2U14, and is first being mailed or uthnwise delivered to Zillow
shnrehuldc]'s lind Trulia stockholders on or nbout November 19, 20]4.

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Opinion of Financial Advisor to Zillow
Goldman Sachs rendered its opinion to the Zillaw board th(1) as o1'.1u1y 28, 2014 and based upon and subject to the factors
and assumptions set [011h therein, and taking into account the Trulia merger, the Zillow exchange ratio pursuant to the merger
agreement was fair from 'a financial point of vie,v to the holders of Zillaw common stock.

The full text of the written opinion of Goldman Sachs, dated July 28, 2014, which sets forth assumptions made,
procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is
attached as Annex D to this joint proxy statement/prospectus. Goldman Sachs provided its opinion for the information
and assistance of the Zillow board in connection with its consideration of the mergers. The Goldman Sachs opinion is
not a rccommcndation as to how any holder of Zillow common stock should vote with respect to the mergers, or any
other matter.
In connection with rendering lhe opinion described above and performing its related financial analyses, Goldman S8chs
reviewed, among other things:
the merger agreement;
annual reports to shareholders or stockholders, as applicable, and Annual Reports on Form to-K of Zillow for tbe
three fiscal yeflTs ended December 31, 2011, December 3 J, 2012, and December 31, 2013, and Annual Reports on
Form lO-K and Form to-KIA, as applicable, or Trulia [or the two fiscal YC8rs ended December 31,2012 and
December 31, 2013;
:I,illow's Registration Statement on Form S-l, including the prospectus contained therein dated July 2011 related to
the public olTering or the Zillo\-v Class A common stock;
Trulia's Registration Statement on Form S-J, including the prospectus contained therein dated September 2012
related to the public offCring ofthe Trulia common stock;
certain interim reports to shareholders or stockholders, as applicable, and Quarterly Reports on Form lO-Q orZillow
and Trulia;
certain other communications from Zillow and Trulia to their respective sbareholders or stockholders, as applicable;
certain publicly available research analyst reports for each ofZiliow and Trulia;
certain internal financial analyses and forecasts ior Trulia prepared by its managc"ment; and
certain internal financial analyses and forecasts fiJr Zillo\v and eertain financial analyses and forecasts for Trulia, in
each case, as prepared by the management of Zillmv and approved for Goldman Sachs' use by ZiJlmv (the
"Forecasts") and certain operating synergies pro.iected by the managements of Zillow and Trulia to result from the
mergers, as approved for Goldman Sachs' use by Zillow (the "Synergies") (see" - Certain Prospective Financial
Information Reviewed by the :I.illow Board and Zillow's Financial Advisor").
Goldman Sachs also (1) held discussions with members of the senior managements ofZillow and Trulia regarding their
assessment of the strategic rationale for, find lhe potential benefits of, the mergers and the past and current business operations,
financial condition, and future prospects ofZillO\v and Trulia; (2) reviewed the reported price and trading activity for tbe Zillow
Class A common stock find the TruUa common stock; (3) compared certain financial and stock market information for Zillow
and Trulia \vith similar information {or certain olher companies, the securities of which are publicly traded; (4) reviev,:ed the
financial terms of certain recent business combinations in the Internet industry and in othcr industries; and (5) performed such
other studies find flnaiyses, and considered such other factors, as it deemed appropriate.
1:01' purposes of rendering this opinion, Goldman Sachs, with Zillmv's consent, relied upon and assumed the accuracy and
completeness of all of the Jinancial, legal, regulatory, tax, accounting and other inlormation provided to, discussed with or
revie\ved by, it, without assuming any responsibility for independent veril1cation

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thereof. In thal regard, Goldman Sachs assumed, with Zillow's consent. that the Forecasts and the Synergies \vere rea<;onahly
prepared all a basis reflecting the best currently available estimates and judgments oUhe management ofZiliow. Goldman
Sachs did not make an independent evaluation or appraisal of the assets and liabilities (including any contingent, derivative or
other off-balance-sheet assets and liabilities) of1.i11O\\I, Trulia, IloJdco, 01' any of their respective subsidiaries and it \vas not
furnished \vith any such evaluation or appraisal. Goldman Sachs assumed that all governmental, regulatory or other consents
and approvab necessary for the consummation of the mergers will be obtained without any adverse effect on Zillow, TruJia, 01'
Holdeo 01' on the expected benefits of the mergers in any \vay meaningful to its analysis, Goldman Sachs also flssumed that the
mergers will be consummated on the terms set forth in the merger agreement, without the waiver or modification of any term or
condition the effect of which would be in any way meaningful to its analysis. For purposes or rendering its opinion, Goldman
Sachs did not take into flccolmt any difTerentifll voting or other righls bet\veen the Holdco Class A common stock and the
Holdco Class B common stock.
Goldman Sachs' opinion docs not addrcss the underlying business decision of Zillow to engage in the transaction oj' the
relative merits of the transaction flS compflred to any strategic alternatives that may be available to Zillow; nor does it address
any legal, regulatory, tax or accounting matters. Goldman Sachs' opinion addresses only the fairness of the Zillmv exchange
ratio from a financial point of view to the holders of Zillow common stock, as of the date of the opinion and taking into account
the Trulia merger pursuant to the merger agreement. Goldman Sachs' opinion docs not express any view on, and does not
address, any other term or aspect of the merger agreement or the mergers or any term 01' aspect of any other agreement or
instrument contemplated by the merger agreement or entered into 01' amended in connection \vith the mergers, including any
allocation ofthe aggregate consideration in the Zillmv merger among the holders ofZillmv Class A common stock and Zillow
Class B common stock, the fairness of the mergers to, or any consideration reeeived in connection therew'ith by, the holders of
any other class of securities, creditors, or other constituencies of ZillO\v; nor as to the faimess of the amount or nature of any
compensation to be paid or payable to any of the officers, directors or employees of Zillow or Trulia, or any class of such
persons in connection with the mergers, ".'hether relative to the Zi1!mv exchange ratio pursuant to the merger agreement or
othenvise. Goldman Sachs does not express any opinion as to the prices at which shares or Holdco common stock will trade at
any time or as to the impact of the mergers on the solvency or viability ofZillow, Trulia or Holdco or the ahility of Zillow,
Trulia or Holdeo to pay their respective ohligations when they come due. Goldman Sachs' opinion was necessarily based on
economic, monetary lTIflrket and other conditions, as in effect on, and the infol111ation made available to it as of the date of the
opinion and Goldman Sachs assumed no responsibility for updating, revising or reaffirming its opinion based on circumstances,
developments or events occll1'l'ing after the date of its opinion. Goldman Sachs' opinion was approved by a fairness committee
of Goldman Sachs.
'The foHowing is a summary of the materipl financial analyses delivered by Goldman Sflchs to the Zi11o\v board of directors
in connection with rendering the opinion described above. The follo\ving summary, hmvever, does not purport to he a complete
description of the financial analyses performed hy Goldman Sachs, nor does the order of analyses described'represent relative
importance or weight given to those analyses by Goldman Sachs. Some of the summaries of the Jlnancial analyses include
information presented in tabular format. The tables must be read together with the full text of each summary and are alone not a
complete description of Goldman Sachs' financial analyses. Except a<; otherwise noted, the following quantitative information,
to the extent that it is based on market data, is based on market data as they existed on or before July 23,2014, the last lrading
day before media reports of a possible acquisition ofTrulia by Zillo\v \.."ere first puhlished, and is not necessarily indicative of
current market conditions.

Historical Exchange Ratio Ana~ysis


Goldman Sachs reviewed the historical trading prices for Zillow Class A common stock and 'frulia common stock since
Trulia's initial public offering on September 20, 2012. Goldman Sachs calculated historical average exchange ratios over
various periods by Jirst dividing the closing price per share ofTrulia common stock on each trading day during the period hy
the closing price per share of Zillow Cla"1S A common stock on the same trading day, and suhsequently taking the average of
these daily historical exchange ratios over such periods, which is referred to as the average exchange ratio for such period.
Goldman Sachs then calcu lated the premiums implied
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by the Trulia exchange ratio to the historical average exchange ratio over various periods. Additionally, Goldman Sachs

reviewed the 32.9% Tndia stockholders' ownership in the combined company implied by the Trulia exchange ratio to the
mvnership implied by the historical average exchange ratios over slich periods. This analysis was undertaken to assist the Zillaw
board in understanding bow the Tndia exchange ratio compared to the at market exchange ratio as of luly 23, 2014, the at
market exchange ratio as of .luly 25,2014 and historical average exchange ratios and also how Trulia's stockholders' ownership
in the combined company implied by the Trulia exchange ratio compared to the ovmership implied by the at market exchange
ratio a::; of July 23, 2014, the at market exchange ratio as of July 25, 2014, and historical average exchange ratios. The following
table presents the results of this analysis:

IIistoricnl Dnte or l'criud

Prcmium/(Discount) of
Trulia Exchange Ratio to
Historical A"'Crage
Exchange Rntio

:Exchange, Ratio

Trulia exchange ratio per the


merger agreement
July 25, 2014
July 23, 2014
30 calendar days ended .July 23,
2014
90 calendar days ended .July 23,
2014
Since January 1,2014
Since September 20,2012

Implied Trulia
Stockholder Ownershi~

0.444x
0.355x
0.321x

25.2%
38.4%

32.9%
28.1%
26.1%

0.325x

36.7%

26.4%

0.326x
0.359x
0.497x

36.3%
23.6%
(10.7)%

26.4%
28.4%
35.6%

Illustrative Financial Contribution Analysis


Goldman Sacbs compared the implied equity contribution that Zillow's shareholders \vould contribute based on specific
historical and estimated future financial metrics, namely revenue and Adjusted EllllDA for Zillov,: and Trulia before taking
into account tbe Synergies that may be realized foUO\ving the completion of the mergers, for actual 2013 and estimated years
2014 through 2016, using the Forecasts. This analysis \\'as undertaken to assist the Zillmv board in understanding how ZiJ[mv
shareholders' ownersbip of 67.1 % in the combined company implied by the Zillow exchange ratio, taking into aecount the
Trulia Merger, compared with the implied equity contribution for Zillow based on celiain future financial metrics for ZillO\v
and Tndia.
To calculate the implied equity contribution for each ofZiliow and Trulia, Goldman Sachs first ohtained for each of Zillmv
and Trulia, an implied standalone enterprise value hy calculating a \veighted average valuation multiple for each of revenue and
Adjusted EBITDA in each applicable year and then applying the v,:eighted average valuation multiple to eaeh company~s
respective financialmetrics in such year. Goldman Sachs then adjusted each implied standalone enterprise value by each
company's respective net cash position to arrive at each company's implied standalone equity market capitalization, \vhich was
then used to calculate the implied equity contribution based on each particular l1nancial metric in a given year. This analysis
resulted in the follo\ving illustrative ranges of the implied equity contribution of Zillow and Trulia, respectively, to the
com bined entity, in each case for each particular financial metric and for the calendar years 2013 through 2016:
implied E{luity
Contrihution
Zillow
Trulia

Revenue

Implied
Exchange

-Ratio
--

2013A
2014E
20151 ':
2016E

59%
56%
59%
61%

41%
44%
41%
39%

0.628x
0.693x
0.613x
0.573x

Adjusted EBITDA
20l3A
2014E
2015E
2016E

64%
65%
63%
64%

36%
35%
37%
36%

0.51Ox
0.492x
0.524x
0.512x

III

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Illustrative Discounted Cashfi'low Analysis
Goldman Sachs performed an illustrative discounted cash tlO\V analysis on the Synergies and on Zillaw to calculate the
total equity value ufthe Synergies and the percent per share value impact to Ziliow common stock of the mergers, determined
by taking the illustrative value indication for the number of shares of lloldco common stock equal 10 the Zillm.v exchange ratio,
taking into account the Synergies, and subtracting the illustrative per share value indication of Zillow common stock on a
standalone basis. This analysis was undertaken to assist the Zillow board in understanding how the implied present values pel'
share of ZilJm.v common stock, on a standalone basi~, comp(lred to implied present value~ per ~hare of Holdco common ~toek to
be held by shareholders ofZillow following consummation of the mergers. This analysis was performed using the Forecast" and
the Synergies, and assumed a June 30, 2014 base date.

Synergies
Goldman Sachs calculated indications of net present value of free cash flows for the Synergies for c(llendar ye(lrs 2014
through 2023 using illustrative di~count rates ranging hom 13.1 % to 15.1 % reflecting estimates of the weighted average cost of
capital for Holdco, loryo annual unlevered free cash flow growth for calendar years 2024 through 202H, and illustrative terminal
values based on perpetuity grov.'1h rate~ mnging [i.-om 4.0% to 5.0% beginning in year 2029. This analysis resulted in illustrative
value indications of the Synergies of$2.2 billion to $3.1 billion.

Per Share Value Impact


Goldman Sachs also performed an illustrative discounted cash t10w analysis for Holdco to calculate indications of the
implied value to be received by holders of l'.i1!ow common stock taking into account the Synergies less the implied value per
share of Zillmv common stock on a stand(llone basis (b(lsed on (In illustrative discounted cash flow analysis [or Zillovv) to
indicate the percent impact per share value ofZillow common stock of the mergers. Goldman Sachs calculated indications of
net present value of free cash flow for lloldco for calendar years 2014 through 2023 using illustrative discount rates ranging
[i.-om 13.1 % to 15.1 %, reflecting estimates ofthe weighted average cost of capital for Holdeo. Goldman Sachs calculated
indications of net present value of free cash flow for Zillow for calendar years 2014 through 2023 using illustrative discount
rates ranging from 12.0% to 14.0%, reflecting estimates of the \velghted average cost of capital for Zillow, Goldm(ln Sachs
calculated implied prices per share of Holdco common stock and for Zillow common stock assuming 10% annualunlcvered
free cash flow growth for calendar years 2024 through 2028 and illustrative terminal values based on perpetuity growth rates
ranging from 4.0% to 5.0% beginning in year 2029. These terminal values were then discounted to calculate implied indications
of present value using illustrative discount rate~ ranging hom 13.1 % to 15.1% in the case of Holdco, and 12.0% to 14.0% in the
case of Zillow. This analysis resulted in a range of implied impact per share ofl',iI1ow common stock of 19.5% to 23.5%.

Illustrative Pre~ent Value of Future Share Price Analysi~


Goldman Sachs performed an illustrative analysis of the implied percent value impact per share of Zillow common stock
in the mergers, defined as the implied present value of the future price for the number of shares of lloldco at tbe Zillmv
exchange ratio on a pro forma basis less the present value of the future price per share ofZiliow common stock, on a ~tandalone
ba~is. This analysis was designed to provide to the Zillow board an indication of the relative difference in present value of a
theoretical future value for Zillow and lloldco as a function of the estimated future earnings and assumed price to future
earnings per sbare multiple for both Zillow and Holdco, respectively. For this analysis, Goldman S(lchs uscd the Forecast~ and
the Synergies for each of the fisca! years 2016 and 2017. Goldman Sachs applied a levered market capitalization, which is the
market value of common equity plus the book value of debt less cash, to forward EBITDA multiple range of20.0x to 30.0x to
estimated EBITDA of Zillow (lnd to estimated EBITDA [or Holdco including the Synergies, for the fiscal year~ 2016 and 2017.
These illustrative EBITDA multiples were derived by Goldman Sachs utilizing its professional judgment and experience, taking
into account current and historical trading data and the current JJHTDA multiples for Zillow and the selected companies (as
defined below). Goldman Sachs then adjusted the implied enterprise value of each of Zillo\v and Holdco by each respective
future net cash position and future weighted
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average shares outstanding to arrive at the implied 1i.lturC value per share of each of Zillow and Holdco. Goldman Sachs then
discounted such 2016 and 2017 values back to June 30, 2014 using an illustrative discount rate of 13.0% for Zillow, reflecting
an estimate of Zillmv's cost of equity, and an illustrative discount rate of 14.1 % for Holdco, reflecting an estimate of Holdeo's
cost of equity. Based on this analysis, Goldman Sachs calculated an implied percent pel' share value impact in the range of 5.6%
to 123.7% for 2016, and 2.8% to 119.3% for 2017.

Selected Companies Ana~vsis


Using publicly available information, Goldman Sachs revieyved and compared cCliain financial information 1i:n" Zillaw and
Trulia to corresponding llnancial information, ratios and public market multiples of all publicly traded companies \vith greater
than $500 million in market capitalization in the consumer internet and online real-estate verticals, that, in Goldman Sachs'
experience and professional judgment) have operations that, for purposes of analysis, may be considered similar to celiain
operations ofZillow and Trulia (collectively referred to as the selected companies):

International Online Real Estate Networks


REA Group Ltd.
Rightmove pic

Mid Cap Peers


Bankrate, Jnc.
CoStaI' Group, Inc.
Move, Inc.
Gl'Oupon, Inc.
GrubI1ub Inc.
HomeA \vay Inc.
RetailMeNot, Inc.
WcbMD Healtb Corp.

Large Cap Peers


Amazon.com, Inc.
eBay Inc.
Expedia, Inc.
Facebook Jnc.
Google Inc.
Linkedln Corp.
Priceline Group Jnc.
'l'ripAdvisor, Inc.
'l\vitteJ', Inc.
Yelp Inc.
This analysis "vas undertaken in order to assist the Zillm\i board in understanding how Lhc various companies \vithin thc
Internet indust!), and other industries were then currently trading with respect to certain commonly used financialmetrics and in
understanding if the shares of Zillow and Trulia were trading at a

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relative premium or discount to such companies. Although none ofthe selected companies is directly comparable to Zillow or
Trulia, the companies included were chosen because they arc publicly traded companic.s \>,:1th operations that, for puqX)SCS of
analysis, may be considered similar to certain operations of Zil!m:\' and TruJia.
Goldman Sachs also calculated and compared various financial multiples and ratios based on information it obtained from
publicly available historical data and Institutional Brokers' Estimate System ("IBES") estimates. The multiples ancl ratios were
calculated using the applicable closing price on July 23, 2014, the last trading day before media reports of a possible acquisition
ofTrulia by Zillov,: were first published. The multiples anel ratios ofZillow fmel Tru1ia were calculated using the Forecflsts and
IBES e.stimates. The multiples and ratios for each of the selected companies were based on the most recent publicly available
information and lBES estimates. With respect to the selected companies and Zillov,: and Trulia, Goldman Sachs calculated:
levered market capitalization, v,:hich is the market value of common equity plus the book value of debt less cash, as a
multiple of 20 14 revenue;
levered market capitalization as a multiple 01'2015 revenue;
levered market capitalization as a multipic 01'2016 revenue;
levered market capitalization as a multiple 01'2014 EBITDA;
levered market capitalization a.s a multiple of 20 15 EBITDA;
levered market capitalization as a multiple of2016 EBITDA;
The results of these analyses arc summarized as follows:
Lcwrcd l\'brkct
Capitalization
as Mmulti[!ic of:

Int') Online
Real Estate Ndworks
Range
Median

2014 Sales
2015 Sales
2016 Sales
2014EBrIDA
2015 EBITDA
2016 EBITDA

12.5x-13.1x
10.6x-l 1.7x
9.2x-l0.4x
23 .2x-17 .6x
18.7x-15.5x
16.2x-14.0x

Mid Cap Peers


Range
Median

z,iIIow
Cap Pecrs
Range
Median Mgmt IDES

Laq~e

12.8x 1.1x-12.0x 4.3x Ux-19.8x 8.5x 15.7x 16.5x


lUx 1.0x-9.6x
3.6x 1.6x-12.4x 6.7x 9.9x 12.2x
0.8x-7.8x
9.8x
3.2x
1.3x-8.9x
5.3x 6.9x 9.6x
20.4x 11.6x-43.5x 17.8x 9.9x-119.8x 27.8x 96.8x 102.8x
17.1x 8.7x-33.4x 14.2x 8.6x-54.7x 21.0x 42.4x 59.0x
15.1x 7.0x-24.2x 11.6x 7.5x-31.2x 15.1x 24.7x 38.8x

1'ruliM
Mgmt IDES

6.6x
4.8x
3.6x
59.8x
24.4x
14.6x

7.0x
5.3x
4.lx
81.9x
33.6x
20.8x

Goldman Sachs also considered calendar year 2014 10 calendar year 2016 annual compounded grm'>-th for revenue and
:mTDA, and calendar year 2015 gross margin and LBflDA margin based on 113ES estimates for the selected companies and
IBES estimates and the Forecasts for Zillow and Trulia.
The following table presents the results of this analysis:
J ,evered Marl<et
ClIl)ita)izlItion
as a lnuUipie of:

lnt') Ouline Helll


Estate NdwoJ'k~
Range
Median

Mid Cap PeeJ'.~


Hange
Median

2014-) 16 Revenue GrowLh 12.4-16.3%


14.3%
10.0-24.3%
2014-'16 EBlTDA Growth 12.2-19.5%
19.3-34.1%
15.9%
2015 Gross Margin
N/A-74.6% 56.7-75.3% 51.2-93.6%
2015 E.131TDA Margin
11.0-39.3%
74.6%
66.0%

J ,arge Cap Peers


Range
Median

15.5% 11.9-54.8%
26.8% 14.3-96.1%
73.5% 29.8-97.7%
28.7% 6.3-62.3%

22.5%
29.0%
79.6%
29.1%

Zillow
Mgmt
IRES

50.1%
98.1%
90.2%
23.4%

31.5%
62.8%
92.1%
20.8%

Trulia
Wgmt
IRES

35.1%
102.4%
85.0%
19.7%

29.6%
98.4%
90.2%
23.4%

Illustrative Pro Forma Accretion / Dilution Analysis


Goldman Sachs performed illustrative pro forma analyses of the potential financial impact of the mergers using earnings
estimates for Zillaw and Trulia set forth in the Forecasts find the Synergies. For the estimated YCflfS 20] 6 and 2017, Goldman
Sachs compared the projected earnings per share of Zillow common stock, on a standalone basis, to the projected earnings per
share of Holdco common stock in each case taking into account a range of potential Synergies (including a range of $25 million
kss than and greater than potential synergies
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!i"

a ....

_~

__===

c:) tim alCS in each year per the Synergies) rea li zed. Based on such analyses, the proposeLl trcmsaclion would bc accreti ve to
Zi llow's shareholders on an earnings per share basis in all orthe above scenarios in the years 2016 and 2017 in the range of
77% to 133%.
This analysis was undertaken to assist the 7, i1law boa rd in understanding whether the proposed mergers would be dilutive
accretive to 7.i llow shareholders on an earnings per share basis. ln each of the ahove scenarios, the market price fur Zillaw
Class A co mmon stock was as of July 25,2014.
Of

B ased on such analyses, the proposed tran saction wou ld he accretive to Zillow's shareholders on an eamings per share
ha... is in all ofthc above scenarios in the yenrs 2016 and 2017.

Selected Trommction!)' AmlIY~'is


Go ldm an Saehs analyzed cerla in publi cly avai lable information relating to all change ofeontrol transactions of grca ler
tha n $300 million in enterpri se value in the cons umer inlernel and online real-estate vel1i ca ls that, in the experi ence and
professional judgm ent of Goldman Sachs, involve compani.es that are engaged in husinesses analogolls to Zill ow and Trulia 's
bus inesses. A lthough none of the selected transaclions is direc{ly comparable to the mergers, the tal'get compan ies ill the
selected lr<:l nsaclions are companies w hh operati ons that, for the purposes of analysis, may be considered similar to certain
operations of Zillow and Trulia,
nate Announced

June 2014
May 2013
January 2013
November 2012
June 2011
April 2011
May 20 11
May 2008

AcquireI'"

Tlirget

Priceline liroup Inc,


Trulia, Inc,
Avis Budget Group, Inc.
Priceline liro up ln c.
Di gital Generation, Inc.
CoStal' Group, Inc.
eBay In c.
CBS Corporation

OpenTahle Tnc.
Market Leader, In c.
Zipear, Inc,
KAYAK Software Corp.
MediaMlnd 'I'echnologies Inc.
LoopNct, Inc.
GS] Commerce, Inc.
CNET Networks, Inc.

Th is analysi s v..as undertaken in order to ass ist the Zi llow board in understa nding how the multiples fOl' the various
tlcicct(..'d lransClctions compared with the same mu ltiple implied hy the proposed transaclioll.
For each of the selected tran sactions~ Goldm an S~te h s calcula{ed <lnd compared levered aggregate consideration as a
mUltiple ofnex{ twel ve mon ths ("NTM" ) reven ues and levered aggregate considcmtion as CI muUiple ofnex{ ...."e}ve months
EHITDA. The following tablc presenL<; the results o f this a nalysis:
Selected Trausactlons
Rauge
Median

li uil'rprisl' Valualiou as a Multiple of:

1.3x-IO.2x
12.4x-38.2x

NTM Revenues
NTMEBlTOA

4.lx
18.9x

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Implied Premia Analysis for Transactions


Goldman Sach~ calculated, based un publicly available information, the distribution of premia (expressed as a percentage
of the per share merger consideration over the closing price on the trading day prior to annOUI1CCITI1.'l1t or undisturbed price) for
transactions announced from 2004 through 2014 (as of June 2014). The analysis included change of control transactions in
which the targcfs primary industry is tcchnology and the levered aggregate consideration exceeded $100 million. The follmving
table presents the results of this analysis:
CUlUuilltive

NumbeR' of Deal.<;

Premium

36
52
90
117
115
83
47
27
71

<0%

0-10%
10-20%
20-30%
30-40%
40-50%
50-()O%

60-70%
>70%

Percentage

6%
14%
28%
46%
64%
77%
85%
89%
100%

Goldman Sachs also reviewed the premium of 25.2% to the closing price of$56.35 per share ofTrulia common stock as of
.luly 25, 2014 and the premium of38.4% to the ~tock price of$40.58 per share ofTrulia common ~tock a~ of July 23, 2014, the
last trading day before media reports of a possible acquisition of Trulia by Zillov,' were first published.
The preparation of a fairness opinion is a complex proce~~ and is not necessarily susceptible to partial analysis or summa!)'
description. Selecting portions of the analyses or of the summary set forth above, without considering the analyses as a whole,
could creatc an incompletc view of the proeesse~ underlying Goldman Sachs' opinion. In arriving at its fairness determination,
Goldman Sachs considered the results of all of its analyses and did not attribute any particular weight to any factor or analy~is
considered by it. Rather, Goldman Sachs made its determination as to fairness on the basis of its experience and professional
judgment after considering the result~ of all of its analyses. No eompany or tran~action used in the above analyse~ as fI
comparison is directly comparable to Zillow or Trulia or the contemplated transaction. The nature and scope of Goldman Sachs'
investigation as well as the scope, form and substance of Goldman Sachs' opinion \vas as Goldman Sachs considered
appropriate.
Goldman Sachs prepared these analyses for purposes of Goldmfll1 Sachs providing its opinion to the Zillow board as to the
fairness of the /,,illow exchange ratio from a financial point of view to the holders ofZillow Class A common stock and Zillow
Class B common stock. These analyses do not purport to be appraisals nor do they necessarily reflect the prices at which
businesses or securities actually may be sold, Analyses based upon forecasts of future results are not necessarily indicative of
actual future results, which may be significantly more or less favorable than suggested by thesc analyscs. Bceause these
analyses arc inherently subject to uncertainty, being bflsed upon numerous factors or events beyond the control of the parties or
their respectivc advisors, none ofZillow, Trulia, Holdco, Goldman Sachs or any other person assumes responsibility if future
results are materially different from those forecast.
The Zillmv exchange ratio and the Trulia exchange ratio were detcl111incd through arm's-length negotiations between
Zillovv and TruJia and were approved by the Zillow board. Goldman Sachs provided advice to /.illmv during these
negotiations. Goldman Sachs did not, however, recommend any speciilc exchange ratio to Zillov,: or its board or that any
specific exchange ratio constituted the only appropriate exchange ratio for the mcrgers.
As described above, Goldman Sachs' opinion to the Zillow board was one of many factors taken into consideration by the
Zillow board in l11f1king its determination to adopt the merger agreement. The foregoing summary does not purport to be a
complete description of the analy~es perlormed by Goldman Sachs in

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connection with the fairness opinion and is qualified in its entirety by reference 10 the written opinion of Goldman Sachs
attached as Annex D 10 this joint proxy statemenUprospectus.
Goldman Sachs and its affiliates are engaged in advisory, underwriting and financing, principal investing, sales and
trading, research, investment management and other Jinanci,ll and non-financial activities and services for various persons and
entities. (i"oldman Sachs and its affiliates and employees, and funds or other entities in which they invest or with which they coinvest, may a1 any time purchase, sell, hold or vote long or short positions and investments in securities, derivatives, loans,
commodities, currencies, credit default s\vaps and other financial instrumcnts of Zillow, Trulia, Holdco and any oftheir
respective afi1liates and third parties, or any currency or commodity that may be involved in the transaction contemplated by the
merger agreement for the accounts of Goldman Sachs and its alTiliates and employees and their customers, Goldman Sachs
acted as financial advisor to Zillow in connection \vith, and participated in certain of the negotiations leading to, the transaction
contemplated by the agreement. Goldman Sachs has provided certain financial advisory and/or underwriting services to Zillow
and/or it<; affiliates from time to time, for which Goldman Sachs' Investment Banking Division has received, and may receive,
compensation, including having acted as joint bookrunner on the public offering of 4,000,000 shares of ZiHow Class A common
stock in September 2012, and as joint bookrunner with respect to a public olTering of 5,023,486 shares ofZillow Class A
common stock in August 2013. During the two year period ended July 28, 2014, the Investment Banking Division of Goldman
Sachs has received compensation for financial advisory and/or underwriting services provided to ZillO\v and/or its affiliates of
approximately $9,000,000. Goldman Sachs may also in the future provide financial advisory and/or underwriting services to the
Zillo\-v, Trulia, l-loldco and their respective affiliates for which (i"oldman Sachs' Investment Banking Division may receive
compensation.
The Zillow board selected Goldman Sachs as its financial advisor because it is an internationally recognized investment
banking firm that has substantial experience in transactions similar to the mergers. Pursuant to a letter agreement dated June 5,
2014, Zillow engaged Goldman Sachs to act as its financial advisor in connection \~'ith the contemplated transaction. Pursuant
to the terms ofthe engagement letter, Zillow has agreed to pay Goldman Sachs a transaction fee of $14.0 million plus an
additional amount in Zillow's sale and absolute discretion of up to $2.0 million. Upon the execution ofthe merger agreement,
$5.0 million of the transaction fee became payable, and the remainder is payable upon and is contingent upon the successful
completion of the mergers. In addition, Zillow has agreed to reimburse Goldman Sachs for certain of its expenses, including
attorneys' fees and disbursements, and to indemnify Goldman Sachs and related persons against various liabilities, including
certain liabilities under the federal securities laws.

Recommendation ofthe Trulia Board; Trulia's Reasons

fOl'

the Merger

Following a review and discussion of all relevant information regarding the Trulia merger, at a meeting held on .Tuly 27,
2014, the Trulia board (1) determined that the merger agreement and the 'J'rulia merger are in the best interests of 'J'ruBa and its

stockholders, (2) approved the merger agreement and the transactions contemplated by the merger agreement, including the
Trulia merger, and declared the merger agreement advisable, (3) recommended that the Trulia stockholders adopt the merger
agreement, and (4) directed that the merger agreement be submitted for consideration by the Trulia stockholders at the TruJia
special meeting.

ACCORDINGLY, THE TRULIA BOARD RECOMMENDS THAT TRULIA STOCKHOLDERS VOTE "FOR"
THE PROPOSAL TO ADOPT TilE MERGKR AGREEMENT, "FOR" THE PROPOSAL TO API'ROVE THE
AUTHORIZATION OF NONVOTING CLASS C CAPITAL STOCK IN 1I0LDCO'S AMENDED AND RESTATED
ARTICLES OF INCORPORA TlON, AND "FOR" THE PROPOSAL TO APPROVE THE ADJOURNMENT OF THE
TRULIA SPECIAL MEETING IF NECESSARY OR APPROPRIATE TO SOLICIT ADDITlONAL PROXIES IF
THERE ARE NOT SUFFICIENT VOTES TO ADOPT TilE MERGER AGREEMENT OR TO APPROVE TilE
AUTHORIZATION OF NONVOTING CLASS C CAPITAL STOCK IN HOLDCO'S AMENDED AND RESTATED
ARTICLES OF INCORPORATION.
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EX-99.4 6 d797176dex994.htm EX-99.4


Exhibit 99.4
News Corp To Acquire Move, Inc.
Will becom e a leading player in rapidly growing
US online real estate sector
Move to benefit from News Corp's scale and reach

New York, NY (September 30, 2014) - News Corp and Move, Inc. ("Move") announced today that News Corp has agreed to
acquire Move, a leading online real estate business that brings consumers and Realtors together to facilitate the sale and
rental of real estate in the United States.
REA Group Limited ("REA"), which is 61.6% owned by News Corp and is the operator of the leading Australian residential
property website, realestate.com.au, plans to hold a 20% stake in Move with 80% held by News Corp.
Through realtor.com and its mobile applications, Move displays more than 98% of all for-sale properties listed in the US,
sourced directly from relationships with more than 800 Multiple Listing Services ("MLS") across the country. As a result,
Move has the most up-to-date and accurate for-sale listings of any online real estate company in America. The Move
Network of web sites, which also includes Move.com, reaches approximately 35 million people per month, who spend an
average of22 minutes each on its sites l ,
Move's content advantage makes it well positioned to capitalize on the fast-growing US online real estate sector and the
world 's largest residential real estate market. More than five million homes in the United States are bought and sold each

year, representing more than $1 trillion in annual transaction volume. Agents and brokers are expected to spend
approximately $14 billion in 2014 marketing homes (up from approximately $11 billion in 2012), and an additional $11
billion will be spent by mortgage providers' .
Under the acquisition agreement, which has been unanimously approved by the board of directors of Move, News Corp will
acquire all the outstanding shares of Move for $21 per share, or approximately $950 million (net of Move' s existing cash
balance), via an all-cash tender offer. This represents a premium of37% over Move's closing stock price on September 29,
2014. REA's share will be acquired for approximately US$200 million. News Corp intends to commence a tender offer for
all of the shares of common stock of Move within 10 business days, followed by a merger to acquire any untendered shares.

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"This acquisition will accelerate News Corp's digital and global expansion and contribute to the transfonnation of our
company, making online real estate a powerful pillar of our portfolio," said Robert Thomson, Chief Executive of News Corp.
"We intend to use our media platfonns and compelling content to turbo-charge traffic growth and create the most successful
real estate website in the US. We are building on our existing real estate expertise and expect to leverage the potential of
Move and its valuable connections with Realtors and consumers around the country,"
"In addition to boosting Move's subscription, advertising and software services, this acquisition will give News Corp a
significant marketing platform for our media assets, which will benefit from the high-quality geographic data generated by
real estate searches," said Mr. Thomson. "We certainly expect this deal to amount to far more than the sum of the parts."
"News Corp' s acquisition of Move speaks powerfully to the quality and value of our content, audience and industry
relationships," said Steve Berkowitz, Chief Executive Officer of Move. "We provide people with the information, tools and
professional expertise they need to make the best and most informed real estate decisions, and we work to uphold the
indispensable role of the professional in the real estate experience. News Corp shares our vision, which is one of the many
reasons this combination is such good news for our customers, consumers and the industry as a whole,"
REA Group Chief Executive Tracey Fellows said: "This is a fantastic opportunity for REA Group to invest in a leading
player in the largest real estate market in the world. We see strong growth potential for Move, given the size of the US
market, the significant proportion of real estate advertising yet to move online, and recent industry consolidation. We believe
that our digital real estate know-how, combined with News Corp's content, distribution and marketing strengths, will be a
winning combination for Move and for our shareholders,"
Move has an exclusive, strategic relationship with the National Association of Realtors (''NAR''), the largest trade
organization in the United States, with more than one million members, and NAR has given its consent to the acquisition.
Move is focused on providing high ROI for agents and benefits from their invaluable marketing support and high quality
listings for vendors and potential purchasers.
"This partnership will help shape the future of real estate," said National Association of Realtors President Steve Brown.
''News Corp ' s ability to reach and engage consumers, combined with realtor.com's quality content and the real insights
Realtors provide will transform the current landscape. Working together, Realtors, Move and News Corp will truly make
home happen."
Move owns ListHub, a digital platfonn that aggregates and syndicates MLS data to more than 130 online publishers, reaching
approximately 900 websites.

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The Move audience is highly engaged and transaction ready; over 90% of page views on their websites are on 'for sale'
properties,3 helping generate the highest conversion rate of qualified leads in the industry'. The connection between agents
and customers is strengthened by robu st web and mobile-based customer-relationship management offerings to help facilitate
transactions. Approximately 60% of traffic for Move websites comes from mobile devices.
For the year ended December 31, 2013, Move reported $227 million in revenues, and $29 million in adjusted EBITDA', and
generated the highest revenue per unique user in the industry.
Move w ill become an operating business of News Corp and remain headquartered in San Jose, California. The company,
started in 1993, has 913 employees.
Some of the expected key benefits of the transaction include:
Broadened reach for Move through News Corp 's robust platform including WSJ Digital Network (approximately
500 million average monthly page views6 ) and News America Marketing (nearly 74 million households)
Increased sales and marketing support to drive higher brand awareness and traffic
Cross-p1atform promotion and audience monetization expertise
Leverage of News Corp's and REA's rea] estate and digita1 expertise to drive improved product innovation,
consumer engagement and audience growth
Boost tranic and digital dwell times with high quality News Corp content

#11#
In addition to its leading position in Australia, REA's operations and investments include leading online real estate websites
in Italy (casa. it) and Luxembourg (atHome.lu) with presence also in regional France. In Asia, REA operates MyFun.com for
the Chinese market and squarefoot.com.hk in Hong Kong and recently acquired a 17.22% stake in iProperty, the leading
online real estate advertising business across South East Asia.
Along with its connection to REA, News Corp also has substantial expertise in real estate via its newspaper holdings,
including The Wall Street Journal and the New York Post. In 2012, the Journal began publishing Mansion , a successful
global lUxury real estate section, under the leadership ofMr. Thomson, who was then the Journal's Managing Editor. News
Corp ' s UK publications also provide readers w ith online access to home and apartment listings throughout Great Britain. The
Times of London 's lucrative Bricks & Mortar section was also commissioned and overseen by Mr. Thomson while he was
Editor of that publication.

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"We have great faith in America's potentia] and the long-term asset value of housing, which is continuing its recovery and
has yet to regain its full potency," said Mr. Thomson. "It is forecast that the number of Millennial households will increase
from 13.3 million in 2013 to 21.6 million in 2018, and they will spend more than $2 trillion on home purchases and rent by
2018 7 Many will begin their search online and use tools and content on realtor.com. Buying a home is the most important
investment decision any family will make."
The acquisition is subject to the satisfaction of customary closing conditions, including regulatory approvals and a minimum
tender of at least a majority of the outstanding Move shares, and is expected to close by the end of calendar year 2014.
Advisors on the transaction include Goldman Sachs, as financial advisor, and Skadden, Arps, Slate, Meagher and F10m LLP,
as legal advisor, for News Corp and Morgan Stanley, as financial advisor, and Cooley LLP, as legal advisor, for Move.
##11#
Conference Call for Analysts and Media
News Corp will host a call with analysts and media to discuss the proposed acquisition at 8:30 a.m. EDT (Sydney: 10:30 p.m.
AEST), September 30, 2014. Reporters are invited to join the call on a listen-only basis.
A live audio webcast of the call will be available via: http://investors.newscom.com.
The call can also be accessed by dialing:
US Participants: 1-800-967-7188
Non-US Participants: 1-719-325-2138
Passcode:6791228
A replay will be available approximately three hours following the conclusion of the call and for 10 business days thereafter
by dialing:
US Participants: 1-888-203-1112
Non-US Participants: 1-719-457-0820
Passcode:6791228
Forward- Looking Statements
This document contains forward-looking statements based on current expectations or beliefs, as well as a number of
assumptions about future events, and these statements are subject to factors and uncertainties that could cause actual results to
differ materially from those described in the forward-looking statements.

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FOlWard-looking statements can often be identified by words such as "anticipates," "expects," " intends," "plans," "predicts,"
"believes," "seeks," "estimates," " may," "will," "should," "would," "could," "potential," "continu e," "ongoing," similar
expressions, and variations or negati ves of th ese words. The reader is cautioned not to place undue reliance on these fOlWardlooking statements, whi ch are not a guarantee of future performance and are subject to a number of uncertainties, ri sks,
assumptions and other factors, many of whi ch are outside the control of News Corporation ("N ews Corp") and Move. The
forward-looking statements in this docum ent address a variety of subjects including, for exampl e, the expected date of
closing of the acquisition and the potential benefits of the proposed acquisition, including integration plans and expected
synergi es. The fo llowing factors, among others, could cause actual results to differ materiall y from those described in these
forward-looking statements: the risk that Move's business w ill not be successfully integrated w ith News Corp 's business;
matters arising in connection with the parties' efforts to comply w ith and satisfy applicable regulatory approvals and closing
condirions relating to the transaction; and other events that could adversely impact the completion of the transacrion,
including industry or economic conditions outside of our control. In addition, actual results are subject to other risks and
uncertainties that relate more broadly to News Corp ' s overall business, including those more fully described in News Corp 's
filings w ith the U.S. Securities and Exchange Commission ("SEC") including its annual report on Form 10-K for the fiscal
year end ed June 30, 2014, and its quarterly reports filed on Form 10-Q for the current fiscal year, and Move's overall
business and financial condition, including those more fully described in Move ' s filings w ith the SEC including its annual
report on Form 10-K for the fiscal year ended December 3 1, 2013, and its quarterly reports filed on Form 10-Q for the
current fiscal year. The forward-looking statements in this document speak only as of this date. We expressly disclaim any
current intention to update or revise any fOlWard-looking statements contained in this document to reflect any change of
expectations w ith regard th ereto or to refl ect any change in events, conditions, or circumstances on whi ch any such forwardlooking statement is based, in whole or in part.
Additional Information Regarding the Proposed Transaction
This communication does not constitute an offer to buy or a solicitation of an offer to sell any securities. No tender offer for
th e shares of Move has commenced at this time. In connection w ith the proposed transacrion, News Corp intend s to file
tender offer documents w ith the SEC. Any definitive tender offer documents w ill be mailed to shareholders of Move.
INVESTORS AND SECURITY HOLDERS OF MOVE ARE URGED TO READ THESE AND OTHER
DOCUMENTS FILED WITH THE SEC CAREFULLY IN THEIR ENTIRETY WHEN THEY BECOME
A VAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED
TRANSACTION. Investors and security hold ers w ill be able to obtain free copies of these documents (if and w hen
available) and other documents filed w ith the SEC by N ews Corp through the SEC website at http;Uwww.sec.govorthrough
the News Corp website at http://investors. newscom. com.

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About News Corp

News Corp (NASDAQ: NWS, NWSA; ASX: NWS, NWSLV) is a global, diversified media and information services
company focused on creating and distributing authoritative and engaging content to consumers throughout the world. The
company comprises businesses across a range of media, including: news and information services, cable network
programming in Australia, digital real estate services, book publishing, digital education, and pay-TV distribution in
Australia. Headquartered in New York, the activities of News Corp are conducted primarily in the United States, Australia,
and the United Kingdom. More information: http: //www.newscorp.com.
About Move, Inc.

Move, Inc. (NASDAQ: MOVE), a leading provider of online real estate services, operates realtor.com, which connects
people to the essential, accurate information needed to identify their perfect home and to the REALTORS whose expertise
guides consumers through buying and selling. As the official website for the National Association ofREALTORS,
realtor.comempowers consumers to make smart home buying. selling and renting decisions by leveraging its direct, realtime connections with more than 800 multiple listing services (MLS) via all types of computers, tablets and smart telephones.
Realtor.com is where home happens. Move is based in the heart of the Silicon Valley - San Jose, CA. REALTOR and
REALTOR.COM are trademarks of the National Association ofREALTORS and are used with its permission.
About REA Group

REA Group Limited ACN 068 349 066 (ASX:REA) is a leading digital advertising business specialising in property. REA
Group operates Australia's No.1 residential and commercial property websites, realestate.com.au and
realcommercial.com.au, as well as the market-leading Italian property site, casa.it, squarefoot.com.hk in Hong Kong,
myfun.com in China and other property sites and apps across Europe. www.rea-group.com.
Contact:
Jim Kennedy, Chief Communications Officer, News Corp
jkennedY@newscom.com
@jimkennedy250
212-416-4064
Mike Florin, SVP, Head ofinvestor Relations, News Corp
mflorin@newscorn,com

212-416-3248
Christie Farrell, Director of Corporate Communications, Move, Inc.
Christie.farrell@move.com
408-558-7115

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Jennifer Parker, Senior Communications Manager, REA Group


jennifer.parker@rea-group.com
+61 427 900 402

David Greer, Vice President,


Media and Consumer Communications, the National Association of Realtors
dgreer@realtors.org
202-383-1128 (0)
202-997-8897 (m)

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Move, Inc. Internal data (August 2014).


Borrell Associates (August 27, 2014).
Move, Inc. Internal data (August 2014).
PAA Research Independent Study.
Adjusted EBITDA excludes stock-based compensation.
Adobe Omniture, for the year ended June 30, 2014.
2013 Demand Institute Housing & Community Survey.

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THE HONORABLE BRUCE HILYER (RET.)

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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


DEFENDANT ZILLOW, INC'S INDEX OF
SIGNIFICANT AUTHORITIES

Plaintiffs,
v.

ZILLOW, INC , a Washington corporation,


ERROL SAMUELSON, an individual, and
DOES 1-20,

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Defendants.

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ZILLOW' S INDEX OF SIGNIFICANT


AUTHORITIES -I
LEGAL125143408. 1

Perkins Coie LLP


120 1 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

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Defendant Zillow, Inc. submits a courtesy copy of the following law review article
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cited in its Reply in Support ofZillow ' s Motion to Compel (Actual Misappropriation) and
requested by the Special Master during the hearing for the same motion:

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Charles Tait Graves & Brian D. Range, Identification of Trade Secret Claims in

Litigation: Solutions for A Ubiquitous Dispute, S Nw. 1. Tech. & Intel!. Prop. 68 (2006)

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LEGAL125 143408. 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
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On March 4, 2015, I caused to be served upon counsel of record, at the address stated

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document: DEFENDANT ZILLOW, INC.'S INDEX OF SIGNIFICANT AUTHORITIES

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Jack M. Lovejoy, WSBA No. 36962


Lawrence R. Cock, WSBA No. 20326
Cable, Langenbach, Kinerk & Bauer, LLP
Suite 3500, 1000 Second Avenue Building
Seattle, W A 98104-1048
Telephone: (206) 292-8800
Facsimile: (206) 292-0494
j lovejoy @cablelang.com
LRC @cablelang.com
kalbritton @cablelang.com
jpetersen @cablelang.com
Clemens H. Barnes, Esq., WSBA No. 4905
Estera Gordon, WSBA No. 12655
Daniel Oates, WSBA No. 39334
Miller Nash Graham & Dunn LLP
Pier 70
2801 Alaskan Way , Suite 300
Seattle, W A 98l21-ll28
Telephone: (206) 624-8300
Facsimile: (206) 340-9599

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Via Hand Delivery


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

clemens.barnes @millernash.com
connie.hays@millernash.com
estera.gordon @millernash.com
dan.oates @millernash.com
robert.mittenthal@millernash.com

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LEGAL1 25 143408. 1

Perkins Coie LLP


120 1 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)
Charles H. Abbott III, (Pro Hac Vice)
Jeffrey A. Atteberry, (Pro Hac Vice)
Samuel D. Green, (Pro Hac Vice)
Jenner & Block LLP
633 West 5th Street, Suite 3600
Los Angeles , CA 90071
Telephone: (2l3) 239-5150

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Via U.S. Mail , 1st Class , Postage
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bcaslin@jenner.com
rstone@jenner.com
nsaros@jenner.com
chabbott@jenner.com
jatteberry@jenner.com
sgreen@jenner.com

I certify under penalty of perjury under the laws of the State of Washington that the
foregoing is true and correct.
DATED this 4th day of March, 2015.
slMaryellen Walsh
Maryellen Walsh, Legal Secretary

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LEGAL1 25 143408. 1

Perkins Coie LLP


1201 Third Avenue, Suite 4900
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Fax: 206.359.9000

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5 Nw. J. Tech. & Intell. Prop. 68


Northwestern Journal of Technology & Intellectual Property
Fall,2006
Alticle

IDENTIFICATION OF TRADE SECRET CLAIMS IN


LITIGATION: SOLUTIONS FOR A UBIQUITOUS DISPUTE
Charles Tait Graves Brian D. Range a 1
Copyright 2006 by Northwestern University School of Law, NOithwestern
Journal of Technology & Intellectual Propelty; Charles Tait Graves, Brian D. Range

1. INTRODUCTION
Trade secret cases pose special problems distinct from other intellectual property lawsuits because alleged trade
secrets are rarely defined in advance of litigation. For every patent, registered copyright, or trademark, there is
a document filed with the federal government identifying the details and boundaries of the asserted intellectual
propelty. But in trade secret cases, the plaintiffs attorneys typically develop the trade secret claims at the same
time that they file a misappropriation suit against a former employee or business pmtner -- or afterwards.
Trade secret plaintiffs rarely provide a precise and complete identification of the alleged trade secrets at issue
without a court order requiring them to do so. This is a strategy, not an accident. The tactical advantages a plaintiff
gains from non-identification are too tempting for a plaintiff to voluntarily provide such identification. [n a typical
case, the plaintiff has filed suit against a recently depalted employee who joined or stalted a competing business,
and then provide little more than a list of high-level, generic categories in which its alleged secrets are said to
reside.
It is also common for a trade secret plaintiff to alter its list of trade secret claims as the case proceeds -- sometimes
dramatically, by replacing entire categories of information or technology, or by re-combining slippery, multielement "combination trade secret" claims into new subsets. In a 2006 New Jersey case, for example, the plaintiff
first identified four alleged secrets in an initial interrogatory response, then added six, later added thilty-nine in an
expeIt repOlt, then claimed ninety-two in a supplemental interrogatory response, and had its expert give what the
court called "moving target" testimony about the alleged secrets. I We have seen many similar alterations during
the course of cases in several jurisdictions, and defendants sometimes *69 spend months disproving one set of
allegations only to face a new, replacement set as the close of discovery nears.
Precise identification of the alleged trade secrets is a crucial component of trade secret litigation. This is
especially true when complex technology is at issue, but also in cases featuring simpler claims. Without a precise
identification of software code elements, hardware architecture components, or even the names of allegedly secret
customers, the defendant cannot compare the claims against public domain information to challenge the alleged
secrecy of such information. It is difficult to conduct a public domain analysis if the claims are identified at only
a generic level such as "source code," "AS[C design elements," or "customer lists." Stated differently, the parties
and the court cannot accurately decide the question of whether a trade secret exists without first understanding
what precisely is asserted as a secret.

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It is not surprising, then, that dispute s over identification of the plaintiffs alleged trade secrets are common.
However, it is notable that courts nationwide have not yet articulated a set of guidelines and standards to assist

judges who must rule on identification que stion s. Indeed, courts in various juri sdictions have issued ruling s on the
sa me identification iss ues with almost opposite results -- a majority requiring more identification, but a minority
allowing the plaintiff to proceed with only general, conc1usory de sc ription s of the alleged trade secrets. The
published rulings indicate that courts subjectively reach their own conclusions, often with little or no reference

to other published decisions. The problem is further exacerbated because courts rarely, if ever, quote precise
descripti ons of potentially valuable trade secrets in publicly available opinions, and thus most published opinions
do not clarify the degree of specificity required. 2 As a re sult, the scattered case law in this area does not always
se rve as precedent, and it is difficult for patties to predict the re sult in any given case. The lack of a uniform set of
guidelines invites trade secret plaintiffs to avoid identifying their alleged secrets in detail, because there is always
a fair chance that the reviewing COUIt will not require them to do so.
Despite the frequency of di sputes over the identification of alleged trade secrets, the issue has received little
scholarly attention. 3 Perhaps thi s is because the case law is scattered across multiple jurisdictions, in state and
federal courts, w ithout any unifying doctrine apart from citations to a few well-known cases. Most treati ses refer
to the problem in only general terms, 4 and a handful of practitioner-oriented articles note palticular cases without
a nati onw ide survey or detailed proposals. 5
*70 Given that mo st of the identification disputes on record have occulTed in the past decade, the time is right
for a detailed analysis of the identification problem. We believe that courts nati onwide facing trade secret disputes
should apply a recognized set of guidelines and sta ndards to reso lve di sputes over the identification of alleged trade
secrets in litigation. This would reduce unpredictable and inconsistent rulings, deter plaintiffs from strategically
withholding information by gambling that any given COUlt w ill not require a precise identification, and deter
defendants from making the wrong demands as to identification at the wrong stage of the case. We believe that
a proper standard would take into account the type of information being alleged as sec ret, the stage of the case,
and the defendant's own diligence in rai sing the issue.
To that end, we have reviewed substantially all of the trade secret identification rulings available, including
unpubli shed ruling s and slip opinions, in order to paint a picture of how courts are reacting to similar arguments
and disputes across the country. We w ill describe both outlier and mainstream opinions to illustrate why a set of
common standard s is needed. 6
Yet merely summarizing holdings does not provide sufficient information to propose guidelines. Few courts
have attempted to state rules of general applicability beyond the di spute at issue. Outlining the policy grounds
suppOlting detailed identification of trade secret claims is therefore necessary. We w ill organize the di scuss ion
by the stage of the case, the type of information at issue, and the skill with which the defense has properly rai sed
the issue. We will also offer so lutions that COUltS can apply for the specific types of alleged secrets at issue in
a given case.
tn short, we offer five proposals as a standard for identification of alleged secrets in litigation:
*71 ( I) Courts should first separate the questi on of whether the plaintiff has identified an alleged sec ret from
the question of whether the information is, in fact, a trade secret;
(2) COUltS should require a reaso nably detailed identification of the alleged secrets before a plaintiff can proceed
with discovery -- a rule already required by statute in California, and by co mm on law in several other states;

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(3) Perhaps most impOitantiy, if a defendant properly requests a precise identification during discovery, the
court should require a precise, complete identification of whatever type of information is at issue -- including an
identification of alleged "combination trade secrets";
(4) No trade secret plaintiff should obtain an injunction or avoid summary judgment without a precise identification
of alleged secrets;
(5) Trade secret plaintiffs should not be permitted to alter or amend an identification of trade secret claims without
a showing of good cause.

These standards would remove the uncertainty that prevails in identification disputes. A trade secret plaintiff with a
valid claim would have incentive to identify the alleged secrets early on, and a defendant who has misappropriated
trade secrets could more easily be shown to have done so. A trade secret plaintiff with a meritless claim, however,
would more easily be exposed. These standards would make it more difficult to sue former employees for
harassment purposes and to spend them into the ground with protracted litigation, and more difficult to claim
public domain information as trade secrets.
We believe that these proposals are equally applicable in jurisdictions which have enacted the Uniform Trade
Secrets Act and those which follow the Restatement (Second) of Torts. Under both, a plaintiff must establish
that the information at issue does, in fact, constitute trade secrets. 7 Requiring identification is a necessary case
management tool to ensure that the patties and the court accurately understand what information is being asserted
as secret in order to proceed to the secrecy question. 8
This Atticle is primarily for COUtts ruling on identification questions , who must research the issue when parties
file pleadings that cite only decisions that favor their positions, and who may need a single source for all of the
nationwide case law. We believe that COUtts do not always realize the degree to which the identification of trade

*72 secret claims is a lawyers' game, where one side holds back information and hopes that the opposing party
will fail to raise the issue, or hopes that that a COUtt will accept the argument that generic references to complex
technology are sufficient.
This Article should also be of use to litigants, both to plaintiffs who have valid claims and seek to identify them
in good faith and to defendants who lack the time or money to canvass the vast jurisprudence on identification,
or who want to craft the best possible discovery requests to pin down a trade secret plaintiff and force a precise
identification.
tn what follows, we will describe the common mistakes that courts make when ruling on identification disputes,
the problems that arise in the absence of a precise identification of trade secret claims, and how COUtts nationwide
have ruled on identification disputes. We will then offer specific proposals for resolving identification questions.

II. THE PROBLEM


A trade secret case usually begins shOltly after a former employee has resigned and either joined a competitor or
formed a new, competing business. The plaintiff files a lawsuit that accuses the defendant of misappropriating
trade secrets, but the complaint contains only generalities about the nature ofthe alleged secrets. Once the parties
have entered into a protective order that allows the confidential sharing of information between the patties and
their attorneys , 9 the plaintiff sometimes issues a written statement that purports to identify the trade secret claims

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at issue, and sometimes provides such a state ment as a discovery response. Because the statement rarely if ever
identifies the alleged secrets w ith precision, a di spute over the specificity of the identification often arises within
the first three months of the litigation. In other cases, the identification dispute arises later, when the plaintiff
alters its claims or raises a new set of claims.
tn the ty pical dispute over identification of alleged trade secrets, the defense argues that the plaintiffs list of
categories and concepts is not spec ific enough, and then cites a scattering of cases that may not have been decided
at the sa me stage of the case, that may not have addressed the same type of information, or that provided no
real guidance on how much precision was required. The plaintiff, in turn , often responds by arguing that the
defendant already kn ows what the alleged trade secrets are because the defendant know s what it stole, and thu s
no identification is necessary . The plaintiff w ill typically argue that a list of high-level concepts is sufficient and
make se lecti ve citations to cases so holding , and it may also argue that because it alleges "combination" trade
*73 secrets rather than individual trade secrets, no identifi cation should be required. 10 Also, if the case is at an
early stage, the plaintiff may argue that it cann ot yet know every trade secret that was stolen and therefore cannot
identify all trade secrets claims it may assert in the future.
Assessing an identification dispute can be difficult given the lack of uniformity in the published cases and the
absence of a set of standards to which COUIts can look, especially in jurisdictions where trade secret lawsuits are
less common.

A. Twelve Policy Considerations Relating to Vague Trade Secret Allegations


The best place to begin is to step back from the facts of the case at iss ue and outline the policy reasons why
requiring a detailed identification of the trade secret claims makes se nse. We believe that there are at least twelve
such considerations. COUIts have cited some of these considerations when requiring identification, and we have
come to recog ni ze the others in the course of litigating sco res of trade secret cases.
The first consideration is that the identification of an alleged trade sec ret can only come from the plaintiff, because
there is no other pre-existing source one can look to for the detail s of the alleged intellectual propelty. Trade sec rets
are not listed claim-by-claim like patents or set fOlth in their entirety like regi stered copy rights or trademarks.
There is no public source to which the defendant can look in order to determine what potential trade secrets the
plaintiff possesses. The plaintiffs decision on what to claim as its trade secrets in litigation is a subjective one. Even
if a former employee defendant could guess what trade secret claims the former employer might make, the specifics
of the actual claim could differ from that speculation. On thi s point, it is impOltant to note that the plaintiffs
identification of its own alleged intellectual propelty doe s not depend on the defendant's documents, because
the preliminary questi on is whether the plaintiff has a trade secret, which mu st be answered before determining
whether the defendant used the secret in its products or services.
The seco nd consideration is that req uiring an early and prec ise identification of alleged trade secrets will encourage
compliance with Federal Rule of Civil Procedure II and s imilar state rules governing frivolous pleadings.
Such statutes and the Uniform Trade Secret Act all require that a trade secret plaintiff make allegations of
mi sappropriation in good faith -- either directly or through general rules against meritless accusations. II Any
plaintiffs pre-lawsuit review of a potential trade sec ret matter should therefore consider whether the basic elements
of the t01t claim can be met, such as (l) the existence, in fact, of a trade secret; (2) the plaintiffs use of reasonable
measures to maintain that sec recy; and (3) the defendant's mi sappropriation of one or more such secrets. 12 A
plaintiff cannot adequately investigate these ele ments without internall y identifying the trade sec ret claims under
consideration. A vague identification of alleged trade secrets once the litigation has begun suggests that the

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plaintiff did not undeltake a *74 pre-lawsuit review. If parties know that identification will be required early in
litigation, they have greater incentive to do a careful review before filing suit.
Third, and similarly, a lax identification standard could allow a patty to avoid the statute of limitations. As one
court noted on this point:
These facts of cutting edge technological life, to say nothing of the limitations of language
generally, have the effect of giving the person asserting trade secret claims in these kinds of
cases, very wide definitional latitude, and, with that, considerable power to manipulate the
atticulation of claims for tactical purposes, e.g., to escape what might otherwise be a pelfectly
sensible application of the statute of limitations. 13

The fOUlth consideration is that an exact identification is necessary to set the proper bounds and scope of discovery
-- the areas in which discovery will be permitted. Litigating patties often make and sell products outside the scope
of the alleged trade secrets, and requiring a precise identification prevents burdensome and expensive discovery
into ilTelevant areas. Also , without a detailed identification, a plaintiff may later define its alleged secrets by first
looking at the defendant's documents and then crafting claims that match those documents, but that do not match
the plaintiffs own information.
The fifth consideration is that requiring a detailed identification early in a lawsuit may reduce future disputes over
identification and thereby reduce the length of the discovery process. By contrast, a plaintiff who identifies the
claims only later may cause new rounds of depositions and other discovery as the parties scramble to assess the
newly-provided information. Knowing the claims early allows for a focused and efficient discovery plan from the
start, and thus serves as a useful case management tool.
The sixth consideration is that without a precise identification, the defense lacks the information it needs to conduct
public domain research and challenge the alleged secrecy of the information at issue. Seventh, and for the same
reasons, the reviewing COUlt cannot rule on a secrecy claim with accuracy and confidence if the exact parameters
of the information remain unclear. Without details, who can be sure that the alleged secret has not been published
elsewhere, by a market competitor, an engineering publication, or in academic work?
The eighth consideration is that requiring a precise identification prevents a plaintiff from making overbroad
secrecy claims encompassing vast categories of information. Plaintiffs sometimes use the trade secret claim as a
sort of non-competition covenant by listing wide areas of technology that encompass the former employee's entire
set of skills, knowledge, and experience. Ninth, and on a related point, a defendant cannot formulate its arguments
for differentiating its technology from the alleged trade secrets at issue without knowing precisely what those
trade secrets are. For example, a former employee may well have worked in good faith to ensure that software
written for a subsequent employer would not copy or otherwise make use of the former employer's *75 nonpublic information, but cannot make that distinction if the plaintiff asserts only general functionalities common
to that general type of software.
The tenth consideration is that expert repOits from both sides will be more useful and focused if the exact nature
of the alleged secrets is known before they begin their work. Without an exact identification, the plaintiffs expelt
may simply declare that broad areas of technology are trade secrets, without actually conducting specific public
domain research that could support a valid scientific opinion. Meanwhile, the defense expelts may be forced to
spend a great deal of effOit researching and opining on wider areas of technology than are at issue, without being
able to focus on the exact technology the plaintiff claims as intellectual property.

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The eleventh consideration is that the trade secret plaintiff should not be ab le to unilaterally alter and amend its
claims without judicial review as the lawsuit proceeds. Too many trade secret cases feature a kaleidoscope of
amorphous , frequently-altered claims that prevent the defense from pinning down and defeating any solid set
of claims. Requiring an early and precise identification of alleged secrets can make attempts at unsupervised
alteration apparent. By contrast, a broad and non-specific list of concepts and categories allows a plaintiff to alter
the details of the claims in a manner more likely to escape judicial review.
Finally, and perhaps most broadly, requiring a detailed identification protects employees' interests in moving to
the jobs of their choice and using public domain information, as they have a right to do. When a plaintiff makes
vague trade secret claims against a former employee without nalTowly defining the actual items at issue, it is
essentially requesting a cOUit-created non-competition agreement against the defendant. 14 Such claims cut into
the former employee's general right to take non-secret knowledge, skills, and experience from job to job. 15 But
when discovery focuses only on detailed clams susceptible to examination and study, there is less risk that these
important public policy interests will be encroached upon.
At the same time, we do not agree with all of the policy grounds that COUlts have given for requiring a detailed
identification of alleged trade secrets. Some courts and commentators have asserted that identification is needed
to prevent a malicious plaintiff from filing suit for the purpose of getting into the defendant's own information and
taking the defendant's trade secrets. 16 While we have learned from experience that *76 attorneys are willing to
assist their clients by altering claims and by not defining claims, we believe that it is less likely that a law firm
would assist a client's scheme to take information from a competitor by filing a lawsuit against the competitor
and turning over information produced in discovery and designated as confidential under a protective order. We
believe that courts should avoid relying on this purported basis for requiring an identification, and focus instead
on the real problems caused by non-identification.

B. Mistakes Courts Make When Ruling on Identification Questions


Reflecting on these policy considerations should assist courts in making a ruling appropriate to the case at issue,
and in avoiding the mistakes courts sometimes make when deciding identification questions.
Several such mistakes merit special attention. To begin with , a tiny minority of COUIts have nullified the
identification requirement altogether, refusing to require a trade secret plaintiff to identify the trade secret claims
even in the face of the defendant's discovery requests or controlling law in the jurisdiction. As one example,
a California trial court sanctioned a trade secret defendant in a 2006 case for not providing discovery after the
plaintiff failed to serve a trade secret identification statement, and it took an appeal to reverse the sanctions -- even
though California has a statute requiring that a trade secret plaintiff provide a reasonably palticular identification
of alleged secrets before pursuing discovery. 17 In another case, a Massachusetts COUlt repeatedly rejected the
defendant's efforts to learn the details of the alleged secrets. 18
Rulings like these are outliers. But three other mistakes that courts make are more common, and perhaps less
obvious. One is not recognizing that the identification of the trade secret claims is a separate issue distinct from
whether the information at issue is secret, because that identification is a necessary preliminary step leading to
the secrecy analysis. In such cases, courts conflate identification questions with the secrecy question, confusing
the discussion. J 9
*77 The second mistake is assuming that descri ptions of technical categories and concepts such as "source code"
or "placement of capacitors in the schematic for the ABC project" are sufficient to identify alleged secrets --

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perhaps because courts do not always recognize how much public domain information exists in such broadly
defined technical categories. We will describe several such rulings below.
The third common mistake, and perhaps the worst, is accepting a plaintiffs argument that because "combination
trade secrets" are claimed, the plaintiff need not make a precise identification of such alleged secrets. A
"combination trade secret" is a multi-element claim that, when valid, ties non-secret items of information together
in a unique manner to form a trade secret. The concept is dangerous , however, because trade secret plaintiffs
often string together non-secret items that have no functional interrelationship to avoid a defendant's showing that
the individual items are non-secret. Attorneys also use the "combination" concept to alter claims, and to create
more sets of alleged intellectual propelty than the plaintiff ever actually thought about or linked together. But
combination claims can fail for a number of reasons, just as individual trade secret claims can, and thus they
should not provide a shield against identification. 20
Trade secret plaintiffs use the "combination" argument during identification disputes to confuse COUIts and escape
a precise identification of the alleged secrets. If a defendant argues for a precise identification, the plaintiff will
often respond that it claims "combination" secrets in an "entire process" rather than individual secrets, and that
identifying individual elements should therefore be unnecessary. Or, to the same effect, the plaintiff argues that its
secret is its entire base of software source code, its entire chip design, and so forth, without regard to identifying
what exactly about those broad categories are asselted as an allegedly misappropriated secret.
The "combination" concept can create a major loophole for a plaintiff seeking to avoid identification. Perhaps most
dangerous, a plaintiff can use the "combination" theory to alter and revise its claims in different mixes of subsets,
to gen'ymander a claim so that the defense cannot focus its research efforts on defeating the final version.

[f

we

take, for example, seven software algorithms and assume that five are in the public domain , the plaintiff might
alter the claim several times to create subsets of the seven where at least one of the included algorithms is secret,
in order to claim the non-secret algorithms as secret as well. With a simple set of seven, there is a multiplicity of
mathematically poss ible variations of subsets of two or more elements. Of course, the *78 algorithms may not in
reality interoperate together, and perhaps should properly be defined as individual trade secret claims rather than
"combination" claims. But without requiring a precise identification of the "combination" trade secret at issue,
the defense may be unable to raise that argument. COUItS need to be aware of this common litigation tactic and
nail down exactly what permutations and subsets are actually claimed as secret.
But all too often, courts have confused the question of (1) whether the plaintiff claims "combination" secrets
instead of individual secrets with (2) whether the plaintiff should be required to precisely identify its alleged trade
secrets regardless of whether they are claimed in combinations or individually.
There are several published rulings where courts have failed to require a precise identification of the alleged
secrets as a result of conflating these two issues. 21 In one, a plaintiff vaguely claimed secrets somewhere within
500 pages of materials, and the defendant argued on appeal after a jury verdict that the plaintiff did not specify
what the secrets were. The COUlt merely noted that a plaintiff can have a combination trade secret in material
that includes elements that are individually non-secret, and did not ask whether any such combination had been
properly identified. 22 And in one of the most questionable trade secret rulings on record, a Pennsylvania district
court rejected a defendant's identification argument by holding that the plaintiffs set of generalized business
concepts for running a tanning salon was an "entire methodology" that added up to form a trade secret, without any
specific identification. By avoiding the identification analysis and stringing together vague business concepts into
a combination trade secret, the decision essentially created a non-competition agreement and held the defendant
liable for violating it. 23 Of course, a plaintiff celtainly is capable of properly identifying an alleged combination

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trade secret. 24 lndeed, many

COUIts

have required precise identification of "combination trade secrets." We will

discuss those cases below when proposing solutions.


With these policy considerations and common mistakes in mind, we will survey the nationwide case law, and then
offer specific proposals for addressing identification disputes.

*79 III. HOW COURTS NATIONWIDE HA VE ADDRESSED IDENTIFICATION DISPUTES


There are several stages of a case where courts face disputes over the identification of alleged trade secrets: the
pleading stage, on a request for a temporary restraining order or preliminary injunction, just before discovery
begins, during discovery, on a motion for summary judgment, during trial, and after trial.
For the most part, the majority trend is to require a detailed identification of alleged secrets -- particularly on
a request for an injunction, during discovery, and on a motion for summary judgment. Rulings are inconsistent
at the pleading stage, probably because of liberal notice pleading requirements. In turn, rulings after trial often
go against the defendant, likely because the defense waited too long to raise the identification issue and, more
importantly, because COUItS are loath to ovelturn jury verdicts.

A. The Pleading Stage


In some cases, trade sec ret defendants have moved to dismis s the complaint, or to obtain a more definite
statement, when the plaintiff is vague regarding the alleged secrets. Some courts have required more information
at the pleading stage,25 though plaintiffs obviously need not disclose material believed to be secret in a public
complaint, and liberal notice pleading standards often mean little is required. 26 As one COUlt explained the
general rule , "courts are in general agreement that trade secrets need not be disclosed in detail in a complaint
alleging mi sappropriation .... The query is whether *80 the allegations provide the defendant with notice as to
the substance of the claims.,,27 In some cases where courts have required more detail in a complaint, it is unclear
whether the amended complaint would be filed under seal, though it would seem that a confidential or redacted
filing would be appropriate. 28

B. Requests for Injunctive Relief


Many trade secret cases begin with a rushed request for a temporary restraining order or preliminary injunction. At
that stage, trade sec ret plaintiffs so metimes make only vague references to the alleged secrets , without providing
detail s. As a result, courts have repeatedly used the identification requirement as a ground to deny the request. 29
Given the COUltS' general reluctance to enjoin a defendant's *81 employment or business on an expedited
proceeding without a careful review of the evidence, it is not surprising that plaintiffs' failures to identify the
information at iss ue provides a ready reason for a denial.
Of course, some trade secret plaintiffs do provide a sufficient identification of their claims when seeking injunctive
relief. 30 Indeed, one would expect that in egregious cases -- where, say, a former employee downloaded key
non-public files the day before resigning -- a plaintiff should easily be able to make a precise identification of
the alleged secrets to SUppOlt its request.
At least one COUlt has required little identification on a request for injunctive relief. That court held that "source
code" was a sufficient identification on a request for a preliminary injunction, and attacked the defendant for

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considering its own software to be confidential while also seeking a better identification of the plaintiffs claim. 31
The

may have conflated the separate considerations of whether or not alleged trade secret is truly secret

COUlt

and whether or not the plaintiff adequately identified the alleged trade secret, *82 because it did not provide a
se parate analysis for identification and then secrecy in sequential order.
An issue related to injunctive relief is whether the court itself properly identifies the alleged secrets in the order
so that the defendant know s exactly what it is forbidden from using. Some appellate

COUlts

have reversed orders

for injunctive relief on thi s basis. 32 It sta nds to reason that if a trade secret plaintiff fail s to provide a precise
identification of its alleged secrets, a court will not be able to issue an appropriately spec ific order against the
defendant.

C. The Pre-Discovery Stage


tf a defendant does not challenge the specificity of the complaint, and if the plaintiff does not seek immediate
injunctive relief, the nex t phase of the case where identification di sputes arise is the moment when the plaintiff
seeks to commence discovery on its trade secret accusations. Several jurisdiction s have required that trade secret
plaintiffs make at least a " reasonabl y palticular" identificati on of their alleged secrets as a condition precedent to
seeking di scovery from the defendant. tn tho se juri sdictions, pre-discovery identification di sputes are common.
COUlts in several state s (or federal COUlts applying state law) have required a pre-di scovery identification procedure
by common law: Delaware, 33 Hlin ois,34 Massac hu setts, 35 Minnesota -- which requires the most detai1 36 -- and
poss ibly Florida. 37 *83 tn addition, a federal court in New York has addressed a defendant's argument that the
plaintiff should not be able to start di scovery on the trade secret claim without first making an identification of
the alleged secrets by se nding the dispute to a di scovery master, but it did not attempt to craft a rule of general
application to other cases. 38
California is the only state to codify a pre-di scovery identification rule by statute. 39 California's legislature
enacted what is now Code of Civil Procedure section 2019.210 in 1985 as palt of the state's Uniform Trade Secrets
Act. The impetus for the statute came from a state bar memorandum to the state leg islature propos ing the tex t of
the statute and noting the di scovery abuses that trade secret plaintiffs often engage in when they fail to identify
the alleged secrets:
One area not addressed by the Uniform Act is the area of plaintiffs abuse in initiating trade
secret lawsuits for the purpose of harass ing or even driving a competitor out of business by
forcing the competitor to spend large sum s in defending unwalTanted litigation. For example,
when a plaintiffs employee quits and opens a competing business, a plaintiff often file s a
lawsuit for trade secret mi sappropriation which states that the defendant took and is using
plaintiffs trade secrets, but does not identify the trade secrets. The plaintiff can then e mbark
upon extensive discovery which the new business is ill equipped to afford. FUitherm ore, by
not informing the defendant with any degree of specificity as to what the alleged trade secrets
are, defendant may be forced to disclose its own business trade secrets, even though th ose
matters may be ilTeleva nt, and the defendant may not learn the exact nature of the supposedl y
mi sappropriated trade secrets until the eve of trial. 40

COUIts and commentators have identified a number of salutary policy goals California's statute serves, 4 1 though
again we do not agree with all of them and find their *84 summaries incomplete. Federal COUIts in California

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have applied the statute in trade secret cases under the Erie Doctrine,42 and courts elsewhere have also used it

in cases under California law. 43


Because so many trade secret cases have arisen in Silicon Valley, rulings on the degree of specificity required under
California's pre-discovery statute have been common in the federal Northern District of California. 44 One such

ruling is wOIth quoting, to illustrate how courts applying California law differ from COUlts in those jurisdictions
which lack a pre-discovery identification requirement:
The Amended Identification of Trade Secrets shall be narrowed to include only items that Plaintiff considers
are its actual trade secrets, and only those trade secrets that Plaintiff has reasonable grounds to allege were
misappropriated .... If Plaintiff contends that a trade secret consists of a specific combination of items, it shall so
state and concisely describe the combination.

[f

Plaintiff contends that its specific use of an otherwise publicly

known item constitutes its secret, it shall so state and concisely describe the use. All trade secrets shall be described
in narrative form , rather than by cross-reference to other trade secrets or documents. [f Plaintiff references a
document as setting fOith one or more trade secrets, it shall specify precisely which pOitions of the document
describe the trade secretes). 45
And in 2005, a California appellate COUlt for the first time issued a ruling providing guidelines for what the statute
requires. The court held that while absolute precision is not required at the pre-discovery stage, enough must be
provided to separate alleged secrets from matters known to the trade:
The letter and spirit of section 2019.210 require the plaintiff, subject to an appropriate protective order, to identify
or designate the trade secrets at issue with "'sufficient patticularity'" to limit the permissible scope of discovery by
distinguishing the trade secrets ' ''from matters of general knowledge in the trade or of special knowledge of those
persons ... skilled in the trade.'" ... The degree of "palticularity" that is "reasonable" will differ, depending on the
alleged trade secret at issue in each case. Where, as here, the alleged trade secrets at issue consist of incremental
variations on, or advances in the state of the alt in a highly specialized *85 technical field, a more exacting level
of particularity may be required to distinguish the alleged trade secrets from matters already known to persons

skilled in that field. 46

It remains somewhat unclear what " reasonable particularity" means in any given case. Does it mean that a plaintiff
must provide 51 percent of the details that would be necessary for a completely precise identification of each
claim, 67 percent, 75 percent, or more? None of the jurisdictions that require a pre-discovery identification with
"reasonable particularity" have yet defined exactly what minimum degree of precision a trade secret plaintiff must
aim for.

D. The Discovery Stage


The discovery stage is the hemt of where identification disputes arise, because discovery is the means by which
the defense can demand a complete, precise identification of each alleged secret. Again, however, the COUltS have
been inconsistent in the amount of detail they have required -- though the skill with which the defense demands
identification no doubt plays a role in the varying holdings.
Some courts have readily granted defense motions to compel a detailed identification of the trade secret claims,
usually in response to defense intelTogatories. 47 In a 2006 Washington case, for example, the defendant served an
identification interrogatory. In response, the plaintiff " referenced its complaint and then listed generic categories
of trade secrets: ' installer list/network,' 'pricing strategy and policies,' and 'customer lists.'" It also included the

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evasive phrase "among other things." The

COUlt

granted a moti on to compel, noting that " [dJefendants are entitled

to discovery related to all of the so-called 'other things' allegedly mi sappropriated." 48


tn turn , a 2005 Texas case describes how, on a moti on to compel, a trial court addressed a plaintiffs recitati on
of generic concepts in its initial res ponse by flipping *86 those categories back at the plaintiff and requiring a
precise identification regarding each of them: 49 There, the

COUlt

ordered the plaintiff to

"state spec ificall y the identity of each ' functi onality,' 'data field,' 'rule,' reflex,' 'structure,' 'design,'
' architecture,' ' integration of combination of various components,' ' negati ve kn owledge,' 'method or process
utili zed for mani pulation information,' 'trigger,' ' calculation code,' ' formula,' 'distributi on,' and 'fo rmat, content,
sequence, total structure and record selection of various repOlts,' or other feature, functi on or element of
[plaintiffs] automobile dealership management system or related written material s that is the subj ect of thi s case
that [plaintiff] contend[s] is a trade secret accessed or mi sappropriated by [appellees]. Each trade secret claimed
by [plaintiff] shall be separately identified by [it] in such answers." 50

tn another case, a court rejected the plaintiffs initial interrog atory response, which li sted a set of generic and
conclusory phrases and made generalized references to a "rati o of ingredients." The COUlt noted that the plaintiff
"does not state how the rati o of ingredients relates to the manufacturing process, nor does it prec isely describe
how the manufacturing process varies according to the factors it has recited." tn requiring a better response, the
court held that the plaintiffs "answers co ncerning the nature of its alleged trade secrets are evasive, ambiguous,
and incomplete.,,5 1
Similarly, a Pennsylvania court in an early case from 1972 found a trade secret plaintiffs responses to
interrogatories seeking a specific identification of the alleged secrets "wholly evasive and nonresponsive," and
reacted to the plaintiffs recitation of generic categories by rhetorically asking the plaintiff what within them
was alleged to be secret: 52 "The answers to #20 can hardly be construed to enlighten Defendants as to the
information allegedly mi sa ppropriated. What are the confidential material s? Who are the confidential suppliers of
such materials? What are the confidential names and addresses of such customers, potential customers, dealers,
di stributors and health department officials?" 53

Other courts have ruled against the plaintiff based on issues arising during a deposition, 54 or sent the matter to
a special master to oversee the identification process. 55

*87 But at least two courts have allowed plaintiffs to res pond to intelTogatories with more generalized
information such as categories in which the alleged secrets fall. These appear to be the minority position, and it
is not clear from the ruling s how the defense worded its discovery requests. 56 At least one COUlt has not ordered
more detail where the defendant's request was badly constructed. 57

E. The Summary Judgment Stage


A plaintiffs failure to identify its alleged secrets during di scovery can, and often does, lead to summary judgment.
COUIts have frequently granted summary judgment for the de fen se based on a failure to sufficiently identify the
trade secret claims. 58

tn one of the most fam ous such cases,59 the Ninth Circuit affirmed summary judgment on a trade secret claim
where the plaintiff asselted secrets in a film projection *88 system. The plaintiff failed to identify the precise

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dimen sions and tolerances that constituted its alleged secrets in res ponding to discovery requests, and the court
affirmed the district COUlt and noted that the lack of identification in a "so phisticated and highly complex projector
system" left the defendant unable to " prepare its rebuttal." 60
In another case, the Seventh Circuit used harsh language against the plaintiff when affirming summary judgment
on a so ftware-based trade sec ret allegation. 61 The plaintiff argued that it had identified its trade secret claims in
a 43-page document, but the

COUIt

rejected that attempt:

According to IDX, "n 43-page description of the methods and processes underlying and the interrelationships
among various features making up IDX's software package" is enough. No, it isn't. These 43 pages describe the
software ; although the document was created for litigation, it does not separate the trade secrets from the other
information that goes into any software package. Which aspects are known to the trade, and which are not? That's
vital under the statutory definition. Likewi se, IDX 's tender of the complete documentation for the software leaves
mysterious exactly which pieces of information are the trade secrets. 62

tn another detailed ruling on a software analysis, a Wi sconsin court affirmed a grant of summary judgment on a
software claim by noting the many components that make up a software system , and faulted the plaintiff for not
identifying what about its own CAD software was di stinct from "general knowledge in thi s niche" of the CAD
software industry. 63
But so me courts, in our view, have gotten it wrong and allowed a plaintiff to survive summary judgment based on
generic and non- specific sets of claims. 64 As an example, a federal COUIt in Illino is denied a summary judgment
moti on where a plaintiff pointed to a long li st of items which apparently included such high-level category
descripti ons as " [a] series reso nant invelter driven by a half-bridge" and " [m]eans for reducing the cathode heating
voltage after lamp igniti on." The court found these nonspecific categories to be "quite specific" in denying the
moti on. 65
*89 tn another highly questionable ruling, a federal COUlt in Connecticut denied a motion for summary judgment
where the plaintiff apparently identified alleged sec rets surrounding an executable software program in seven
generic categories such as "'description s ... with regard to the concept of how the program worked,'" (ellipsis
in original) and ''' the program itself. '" The court appears to have allowed the "combinati on trade secret" tactic
described above, and held that because combination trade sec rets can exist, the plaintiffs " metaphorical ' rec ipe'"
was a good enough trade secret claim to survive the motion. 66
And in so me cases, of course, the plaintiff does provide detail sufficient to defeat the defendant's moti on for
summary judgment. 67

F. The Pre- Trial, Trial, and Post- Trial Stages


tn so me cases, the plaintiff evades identification until the pre-trial stage, and courts so metimes react stro ngly
against the plaintiff. 68 tn other cases, so me cases make it all the way into trial or post-trial proceedings before
the identification di spute comes to a head. tn many of these cases, it appears that the defense failed to rai se the
issue earlier, and so metimes the waiver is apparent. 69 Some COUItS have ruled against the plaintiff, 70 *90 but
in many others, especially tho se after a final judgment, COUItS leave the ruling against the defendant in place. 7 J

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It is wOIth noting that the defendant's failure to raise the issue until the last minute leads to post-hoc justifications
for a faulty judgment or jury verdict, when a timely argument might have changed the course of the case. 72
Because appellate courts tend to uphold jury verdicts, untimely argument can lead to questionable holdings. In
one case, a plaintiff apparently failed to identify any specific alleged secrets within its software during a long
jury trial, but the defendant does not appear to have raised the issue until post-trial motions. The district court
affirmed the jury verdict by resOiting to *91 the all-too-familiar "combination trade secret" evasion, essentially
validating the plaintiffs non-identification. 73

IV. PROPOSALS
Having reviewed the policy reasons why identification of alleged secrets is a crucial question , the mistakes courts
all too often make when ruling on identification disputes , and the nationwide case law, we are in a position to
offer guidelines and standards for ruling on identification disputes in trade secret litigation.
As a general proposition, we believe that COUIts should require trade secret plaintiffs to identify their alleged
secrets in detail as early as possible in the litigation. 74 What follows are proposals tied to the stage of the litigation
and the type of information claimed as secret, with general guidelines appropriate to all identification disputes.
We also propose a model intelTogatory requesting a precise identification of the plaintiffs trade secret claims.

A. General Guidelines
Some general considerations are appropriate for all identification disputes.
Separating Identification From the Secrecy Analysis: As described above, COUIts should always treat the
identification requirement as a separate, threshold question before reaching the distinct issue of whether the
claimed information actually amounts to a trade secret. Identification is not so much a fact issue as a drafting issue.
Non-Confidential Identification: Courts should be wary of plaintiffs' purpOited identifications that list only
general, high-level categories or technical terms. One general rule might be that if the list of alleged secrets is
not marked as a confidential document or could have been listed verbatim in the complaint without actually
disclosing the plaintiffs alleged trade secrets, the list is prima facie insufficient. No plaintiff making a good faith
identification would disclose its alleged secrets in a non-confidential document. 75
Incomplete Identification: Another basic consideration is that if an identification list expressly includes phrases
suggesting that it is incomplete -- such as "including," and "among other things" -- it should likewise be prima
facie insufficient. Some COUIts have *92 noted the problem of such "catch all" phrases when requiring more. 76
Avoid References to Voluminous Documents: COUIts should not allow trade secret plaintiffs to point to
documents in which trade secrets are said to reside as a substitute for a detailed identification. Documents such
as design specifications may contain far more information that what is claimed as trade secrets, and reading a
complex document may not inform the reader what precisely is being asselted as secret. 77 As an example, the
Southern District of New York once recognized this problem by holding that a mere list of documents was an
insufficient identification. The court required the plaintiff to identify all trade secrets claims, to list all documents
refelTing to such claims, and "to key all documents or portions thereof to specific trade secrets and confidential
information alleged to have been misappropriated" because "[a]t the very least, a defendant is entitled to know
the bases for plaintiffs charges against it." 78

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Requiring [dentification of Combination Trade Secret Claims: We also believe that courts should require
identification of alleged "combination trade secrets," and should not confuse the existence of such allegations
with whether identification of palticuiar combinations is necessary. W e described above several rulings, mistaken
in our view, where trade secret plaintiffs asselted "combination" secrets and avoided having to identify them. But
many other courts have cOiTectiy held that trade sec ret plaintiffs mu st identify "combinati on trade secret" claims
just as they mu st identify individual trade secret claims. 79 We believe that these decisions reflect *93 the better
reasoning, and should be followed by other COUItS. One such ruling, an early 1958 decision by a federal court in
Wi sconsin, is wOlth quoting for the COUIt'S indignation at the plaintiffs refu sal to identify its combination claims
of one hundred unspecified modifications:
Ju st specify the hundred different machines you claim, and diagram them. Let's find out what you claim was a
trade secret that was improperly communicated to and used by the defendant. If there are a hundred, let's have a
hundred, but let's have it specific so when this case comes on for trial, or if the defendant wants to take further
di scovery on those matters they will know what the iss ues are going to be and the COUlt will know what the iss ues
are going to be, and we won't come in here with a broad shotgun charge and be weeks putting in te stimony on
matters that could be handled in very shOit order. I think they are entitled to have that made very definite. 80
Keep the Identification Within the Scope of the Complaint: A final general consideration applicable at any stage
of the case is that a plaintiff should not be permitted to allege trade secrets outside of the fact pattern pleaded in
the complaint. While thi s may be rare, we have seen at least one case where a plaintiff alleged a customer li sttype set of allegations in a complaint against its former salespeople, but then generally described hardware-based
trade secrets in its California identification statement. In an unpubli shed ruling , the COUlt granted the defendants'
motion for an order limiting the scope of the trade secret claims after the defense raised the basic principle that
the alleged secrets were beyond the claims and defenses at iss ue in the complaint. 81

*94 B. Type of Information


Another important consideration is that the poss ibilities for identification differ according to the type of
information being claimed as trade secrets. Some information can only be identified by naming it, such as customer
contact information. With information in source code, however, there can be more than one plaus ible way to
provide a precise identification.
Customer Lists and Business Information: It should be clear that in cases involving simpler types of
information such as customer li sts, there are no choices other than defining exactly what the alleged secret is or
merely listing generic categories. When a plaintiff claims trade sec rets in customer list information, pricing or
sa les information, or business or marketing plans, it should be easy to tell the defendant exactly what the alleged
secrets are -- the plaintiff can simply name the suppo sedly secret customers, prices, ideas, and the like. 82
Formulas, Measurements, and Mathematical Information: As complex as chemical formulas, measurements,
and math-based calculations can be, they too can be identified only by stating exactly what the item is: the
numerical measurements or dimensions, the calculation expressed in mathematical terms, and so on. The same
precise and detailed nature that can make this type of information secret also makes it easy to fully identify.
Software Code: Identification of trade secret claims in software code can take many forms. For example, trade
secrets could exist as ( I) the functionality of compiled and executable object code; (2) source code implementing
higher level algorithms that mayor may not be secret; (3) information or formulas within source code; (4)

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algorithms or architecture; or (5) data structure items.

83

At the same time, software can contain non-secret

information in those *95 same categories, as well as auto-generated code, open source material, or basic code
mandated by the programming language or type of program. Identification of each of these categories is thus
worthy of independent consideration.

In the rare case where a trade secret plaintiff alleges that executable object code was mi sappropriated, the plaintiff
should name the executable files, and identify what about their functionality is alleged to be secret. 84 Second,

where the plaintiff alleges misappropriation of source code, it should identify the specific lines of code or programs
claimed to be secret by, for example, printing out the code on paper with numbered lines and identifying the
allegedly misappropriated lines by page and line number, by highlighting, or by color-coding. 85 Third, algorithms
or formulas existing within code should be identified with exactitude just like mathematical information. Fourth,
in the case of algorithms, the plaintiff should identify the precise combination of functions which comprise the
algorithms at issue. Similarly, the higher-level architecture of the software should be identified by detailing the
combination of the specific algorithms employed. Fifth, where secret data structures are alleged, the nature of
those structures should be defined with patticularity. 86
*96 Mechanical Devices: Trade secrets might be embodied in mechanical devices that include secret patts
unknown to the public or a secret combination of publicly known parts. 87 A plaintiff alleging trade secret claims
about a secret patt should identify that part in detail. If the plaintiff alleges that the trade secret is a combination
of publicly known patts, the plaintiff should identify that combination, and the COUlt should limit the plaintiffs
ability to modify the alleged combination. 88
Chemical Mixtures and Recipes: Mixtures, whether for something as simple as some food product recipes or
the combination of ingredients in a certain brand of gasoline, should be identified by the combination of publicly
known elements -- including the measurements or ratios for each ingredient.
Negative Information: Negative information -- so metimes called "what not to do" -- can pose difficulties. One
prominent commentator believes that because the total invention history of a combination-type trade secret can
contain a body of negative knowledge in the sense of many steps not taken and choices not made, identifying that
sum total should not be required. 89 We agree in patt. It is unlikely that the defendant will be accused of actually
taking and using that whole panoply of negative items, and thus there is no need to force the plaintiff to draft a
complete invention history. However, where a plaintiff specifically accuses a defendant of taking and using one or
more items of negative information, we see no policy reason not to require that those items also be defined in detail.
Destroyed Information: Perhaps the hardest question involves an extreme scenario where a defendant
physically destroys information that was valuable and secret, without leaving any copies behind. We know of no
cases on thi s subject, and have never seen it in practice. A deserving plaintiff may have no ability to precisely
identify what was destroyed, but a malicious plaintiff could claim purpOited value in information that never really
existed, or that was of little actual value. This is an area where COUIts should have wide di scretion to assess the facts
of particular cases. For example, if it were impossible for plaintiff to identify the destroyed secret, a COUIt could
require identification of the circumstances of the *97 alleged creation, destruction, and plaintiffs ownership in
the information.

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C. Stage of the Case


As discussed above, a court's handling of the identification dispute differs depending on the stage of the case.
We believe that the pleading stage is not the time to consider identification questions , except in cases where the
complaint fails the ordinary rules for indefinite statements. 90
However, we believe that when a trade secret plaintiff requests preliminary injunctive relief that could seriously
impact the defendant -- by shutting its business, limiting a person's employment options, scaring away investors
and customers, and the like -- courts should require an identification of the alleged trade secrets at issue with a
substantial degree of detail. There might be exceptions for highly unusual circumstances -- where, hypothetically,
there is concrete evidence that the defendant is planning an imminent foreign transfer of an immense amount of
stolen software code, and there is no time to provide all the details. COUIts are capable of separating such extreme
facts from routine motions against depatting employees who have just started a new company.
Most impOitant, we believe that COUIts in jurisdictions that have not yet enacted a pre-discovery identification
requirement for trade secret cases should do so, both as a valuable case management process and to encourage prelawsuit investigations. In addition to the trade secret pre-discovery cases described above, the approach several
federal courts have taken in patent cases provides a useful analogy. Federal district COUlts in California, Georgia,
Pennsylvania, and Texas have enacted special local rules for patent cases that require a more specific identification
of the patent claims than already exist in the published patent. Specifically, these districts require patentees to
explain with precision at a very early stage exactly what patent claims are being asserted and why the allegedly
infringing product or process satisfies each element of the asselted patent claims. 91 As one COUIt explained, the
patent local rules were adopted to "place the patties on an orderly pretrial track," "require the plaintiff to carefully
prepare for the filing of a patent suit," and "require parties to crystallize their theories of the case early in the
litigation and to adhere to these theories once they have been disclosed.,,92
The benefit of identification in the trade secret context is even greater. In a patent case, the court and the defendant
have notice of the patent's claims and have a description of the invention from the published patent itself. The
local rules described above go a step further by removing any mystery about what particular claims the plaintiff
will assert and how the plaintiff intends to argue that those claims cover an accused product or process. In a trade
secret case, and absent an identification requirement, the COUlt and the defendant cannot know how the plaintiff
will allege that trade secrets were misappropriated, and, even worse, cannot know what the trade secret claims
are. The need for identification in trade secret cases is thus more critical than in *98 patent cases. Enacting local
rules akin to these patent-based rules would be a wOlthy goal for trade secret law. [n any event, COUIts can require
pre-discovery identification by common law for case management purposes.
Finally, detailed identification should always be required by the summary judgment stage, assuming that discovery
has taken place. But where a defendant fails to raise the identification issue until after trial, it is understandable
why so many COUlts have refused to reverse on that basis.

D. Defendant1s Discovery Request


As discussed above, the defense sometimes compounds the identification problem by serving badly-phrased
discovery requests or, more importantly, failing to timely raise the issue. By failing to ask for a totally precise
identification, a defendant can allow the plaintiff to get by with generic concepts and categories, and alter its
claims without judicial review.

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tn one case, for example, the defendant's intelTogatory apparently requested only that plaintiff describe the alleged
secrets and documents in which they were contained. When the plaintiff responded with a generalized statement
pointing to 17 pages and describing a "manufacturing process" " including" seven general concepts, the defendant
moved to compel. But the court found the generalized identification sufficient. 93 Perhaps if the defendant had
served a better-worded interrogatory demanding preci sion, the resu lt would have been different.
Likewise, a defendant in a California case made a mi stake when it tied its identification interrogatory to California's

pre-discovery statute -- which does not require absolute precision -- instead of asking for complete precision. 94
Yet another defendant asked only for the identification of documents in which the plaintiffs alleged secrets were
to be found, instead of asking for a precise identification of the claims themselves. 95 It therefore failed to seek
the maximum degree of detail it could have requested. Similarly, a failure to press for complete identification in
depos ition questioning can allow the plaintiff latitude to alter its claims afterwards. 96
We believe that a well-worded interrogatory or other discovery request should demand a totally precise, complete
identification of each alleged trade secret. A model inteITogatory with an accompanying definition is as follows:
*99 ldentify w ith prec is ion and specificity each and every alleged trade secret [Plaintiff] contends [Defendant]
misappropriated. "Identify w ith precision and specificity each and every alleged trade secret" as used herein mean s
to provide a specific description of each such alleged trade secret, on an individual basis for each such alleged
trade secret, in such a manner that the exact identity, sco pe, boundaries, constitutive elements, and content of each
such alleged trade secret are fully disclosed in writing, including any asserted combinations, [and with precision
above that required by California Code of Civil Procedure section 2019.210]. Plaintiff should not rely on any
vague or conclu sory phrases that do not separately list and describe each such alleged trade secret.
This model request requires a totally precise identification of each alleged secret, without dissembling or deliberate
obfuscation. It alerts the reader to typical evasion practices, and thus educates a court ruling on a motion to compel
about what exactly is sought and what is insufficient. The request also make s clear that more is sought than what
some jurisdictions require at the pre-di scovery stage -- California law in thi s model-- though of course the request
can be adapted to different jurisdicti ons.

E. Amendment
The question so metimes arises whether a trade sec ret plaintiff can unilaterally amend its identification of trade
secret claims as the case proceeds. One can envision circumstances where amendment would be proper, such as
where a plaintiff learns that a defendant has mi sappropriated trade secrets beyond tho se first believed to be at
issue. But one can also envision circumstances where the plaintiff drops one set of meritless claims in order to
pursue another, alters claims to avoid summary judgment or to add in new claims just before trial, or changes
definitions of existing claims to confound the defendant's ability to research the public domain.
A 2004 federal court case applying California law created a rule that we believe makes sense and should be
widely adopted. The

CO Ult

held that because a statement identifying the plaintiffs alleged trade secrets is akin to

a pleading, the plaintiff would have to show good cause to amend the statement, just as it would have to do in
order to amend its complaint. 97 Subjecting amendments and alterations to judicial review would help prevent the
problems we have experienced in many cases where the alleged secrets change repeatedly as the case proceeds,
ofte n as the close of discovery nears.

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Another good practice is to prevent the plaintiff from amending its identification of alleged secrets in order to
avoid a defendant's pending summary judgment motion. 98 The same practice should apply if the plaintiff claims a
"combination *100 trade secret" and tries to alter its sub-elements in the face of a summary judgment motion. 99
While this might be inappropriate where discovery has only just begun and the motion is filed too early, we believe
that courts would promote and invite litigation abuses if they allowed trade secret plaintiffs to alter the claims and
escape a motion for summary judgment filed after significant discovery has taken place.
tn turn , some courts have refused to allow amendment and addition of new trade secret claims after discovery
closes, and that too should be a universal rule. 100

F. Sanctions
COUIts have issued sanctions in several trade secret cases where plaintiffs failed to identify their alleged secrets
despite defense efforts to obtain more information. 10 1 Others have declined to award sanctions even where the
failure to identify (among other problems) was manifest. 102 Rule 11 and similar state rules already *101 require
that a plaintiff understand precisely the alleged secrets that it accuses the defendant of misappropriating, and there
is no reason the plaintiff should be unable to share this understanding -- essential to the plaintiffs core case --with the defendant. Because non-identification is a lawyers' tactic used to gain an unfair litigation advantage, we
believe that sanctions should be readily awarded where a trade secret plaintiff tries to supply as little information
as poss ible and hopes that the COUIt will not require more.

V. CONCLUSION
Disputes regarding identification of alleged trade secrets are common in trade secret litigation around the country.
COUIts thus far have not articulated a uniform set of standards and guidelines to address the problem. But such
rules are needed, because trade secret plaintiffs generally refuse to precisely identify their trade secret claims
unless the court forces them to do so. Our proposals would ensure that the many policy grounds supporting a
precise identification of alleged secrets would be satisfied in any given case.

Footnotes

al

Charles Tait Graves and Brian D. Range are associates at Wil son Sonsini Goodrich & Rosati in San Francisco,
California and Austin, Texas. This article is the foul1h in a series that seeks to clarify frequently litigated but obscure
areas of trade secret law, in the interest of protecting employee mobility and the right to use information in the public
domain.
See. e.g. Civil Action No. 01 -4677 (SRC) 2006 WL 1344084. at

* 13 (D.N.J. May 16, 2006) (acknowledging plaintiffs

"moving target" allegations but holding that defense had sufficient oppol1unity to take di scovelY on shifting claims);
Thomas & Betts Corp. v. Richards Mfg. Co., No. Civ. 01-4677, 2006 WL 902148, at *8-9 (D.N.J. Apr. 4, 2006) (baITing
some expel1 testimony).

See Savor, Inc. v. FMR COl]' . No. Civ. A. OOC- IO149JRS, 2004 WL 1965869, at *67 (Del. Super'. Ct. Aug. 16.

2004) (redacting alleged trade secrets).

The single full-length al1icle we have found devoted to the identification question is Kevin R. Casey, Identification
of Trade Secrets DlIring Discovery: Timing and Specificity, 24 AIPLA Q.J. 191,281 (1996) (summarizing case law
and noting different stages of the case, but apparently recommending that "precise" detail need not be di sclosed until

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trial ; no spec ific focus on identification of different types of information). We di sagree that identification should be
withheld until trial, for reasons di sc ussed below. The majority of the case law since 1996 supports our position.

See. e.g., RUDOLF CALLMANN, CALLMANN ON UNFAIR COMPETITION, TRADEMARKS AND


MONOPOLIES 14:30 (4th ed. Supp. 2006) (briefly noting issue with citations); MELVIN A. JAGER, TRADE
SECRETS LAW 5:32, 9:8 (West 2006) (1985) (general description of some identification cases); ROGER M.

MILGRIM , MILGRIM ON TRADE SECRETS 15.01 [I][d][i], 16.01 [5][b] (Matthew Bender 2006) (1967) (general
summary of issue and it s importance with a few citations); ROBERT I. WElL & IRA A. BROWN, JR. , CALIFORNIA
PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL 8:58 (2006) (general description of California's Code
Civ. Proc. sec. 2019.210). The most detailed existing commentary on the identification question is JAMES POOLEY ,
TRADE SECRETS 11.02 (Supp. 2(05). However, we respec tfully di sagree with the view expressed there that courts
should not always require preci se identification, especially during the di scovelY stage, because without precision the
plaintiff has too easy an opportunity to continually alter its claims, and because plaintiffs who fil e multi-million dollar
technology lawsuits are full y capable of providing such prec ision. Moreover, we have seen many cases where highly
technical detail s were located in the public domain, and such research would have been impossible absent precision.

See, e.g. , JOHN F. HORNICK & MARGARET A. ESQUENET, TRADE SECRET IDENTIFICATION OF TIMING
IN DISCOVERY (2005), http://www. finnegan.comlpublications/news-popup.cfm ?id= I 248&type=mticle (focu sing
on jurisdictions with pre-discovery requirements); Brent Caslin, Secret Weapon: Understanding What Constitlltes

"Reasollable Particularity" Can Be the Decisive Elemellf in Trade Secret Litigation, L.A. LAW. , Apr. 2004, at 44
(noting leading cases and advising defendant s about variou s motion s to fil e regarding an insufficient identification);
York M. Faulkner & Margeret A Esquenet, Plltting an End to the Trade Secret Plaillfiffs Game of Bait and Switch,
IP LITIGATOR, Sept. 2001, at 24-25 (noting problem and describing a few leading cases); Randy Kay , ldellfijying

Trade Secrets in Litigation - Managing the Process, 28 NEW MATTER 112, Sept. 2003 , 19-22 (noting problem and
providing advice for plaintiffs and defendant s); James R. Mckown, DiscovelY of Trade Secrets, 10 SANTA CLARA
COMPUTER & H1GH TECH. L.J. 35, 47 (1994) (noting leading cases on identification di sputes as of 1994 in m1icle

c.c.? Section
20/9.2/0: A Sword, Not a Shield, ORANGE COUNTY LAW. , Mar. 2006, at 51-55 (advi sing defense counsel to
take advantage of California's pre-di scovelY identification statute and use a plaintiffs failure to identify to move for

about procedural aspects of di sclosing trade secrets in various litigation contexts); David R. Sugden,

summmy judgment later in the case).

Of course, rulings on most identification di sputes take place on discovelY calendars in trial courts and thu s are never
published, so a complete nationwide survey is not poss ible .

See, e.g., CAL. CIV. CODE 3426. 1(d)( I) (West 2006) (California Uniform Trade Secrets Act provision defining trade
secrecy); RESTATEMENT (SECOND) OF TORTSSS 757 cmt. b ( 1979) (Restatement definition of trade secrecy).
We note, however, that identification may not always matter in jurisdictions where a former employer can use contract
law to bind former employees with non-competition covenants that bar use of non-secret material for some period after
resignation. See, e.g., Lason Serv., Inc . v. Rathe, No. Civ.A.3:02CV2110-D, 2003 WL 21728184, at *6 (N.D. Tex.
Mar. 14,2003) (rejecting defendant 's argument that plaintiff fail ed to identify allegedly secret customers because nonso licitation covenant barring solicitation of customers was valid in jurisdiction and it was rrelevant whether customers
were secret or non-secret) ; Paper Mfg. Co. v. Weiss, No.1 040, 1972 WL 15994, at *3 (Pa. Ct. Com. PI. Mar. 13, 1972)
(denying motion to require identification of alleged trade secrets given that plaintiffs claim was premi sed on restrictive
non-competition contract valid in that jurisdiction, and thus plaintiff need not prove trade secrets to prevail ).

A protective order in a trade secret case usually creates a three-tiel' classification for information produced in discovelY:
material that is designated as non-confidential , material that is designated such that only the pmties can view it and
not the public, and material that only the attorneys and expert witnesses can view. The pmties usually agree on terms
allowing the individual s actually accused of mi sappropriating trade secrets to see the li st of items they are accused of
having stolen. In most cases, employees of the pmties rarely see documents and other information produced by the
other pmty, so there is little if any risk that one side will mi suse information produced by the other.

10

For a di sc ussion of courts which have accepted thi s "combination trade secret" argument, see infra Section Ill.A.

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II

For example, California's version of the Uniform Trade Secrets Act provides remedies for bad faith trade secret claims,
and the state also has a general statute governing fri vo lous pleadings. See CAL. Cry. CODE 3426.4 (West 2006);

CAL. CIY. PROC. CODE 128.7(b) (West 2006).


12

13

14

See, e.g., CAL. elv. CODE 3426. 1 (West 2006) (definitions of elements of a trade sec ret claim).

Intermedics, Inc. v. Ventritex, Inc. , 822 F. Supp. 634, 656 (N.D. Cal. 1993) (regarding trade secret statute of limitations
under California's UTSA).
It should be noted that an employee seeking to act in good faith may have no affirmative ability to obtain a spec ific

li st of potential trade secrets in order to avoid using them . In Lalle v. Baxter Healthca re Co/p. , 905 S.W.2d 39, 40
(Tex. Ct. App. 1995), a former employee sought a deciaratOlY judgment that would force his former employer to list
any trade secrets that it contended the former employee could not utili ze in his new job. The coul1 held the issue was
not justiciable because the former employee had "not invented , and may never invent, anything that is of concern to
Baxter." Id. at 42. Thus, the form er employee's attempt to use a declaratory judgment action to determine how he could
fairl y compete with hi s former employer fail ed.

15

The concept that former employees are fre e to use general skill s, knowledge, and experience is well established. See,

e.g., Win ston Research Corp. v. Minn . Mining & Mfg. Co., 350 F.2d 134, 143- 144 (9th Cir. 1965) ("[plaintiffs] former
employees cannot be denied the right to use their general skill , knowledge and experience, even though acquired in part
during their employment by [plaintiffJ ); Eaton Corp. v. Appliance Valves Corp. , 526 F. Supp. 1172, 1180 (N.D . Ind.
1981 ) ("the general knowledge and skill obtained by an employee during hi s employment belongs to that employee
and can be utilized by him after terminating hi s employment"), affd, 688 F.2d 842 (7th Cir. 1982).

16

See, e.g., Computer Econ., Inc . v. Gartner Group, Inc ., 50 F. Supp. 2d 980, 985 (S. D. Cal. 1999) (identification
"prevents plaintiffs from using the di scovery process as a means to obtain the defendant 's trade secrets."); Data General
Corp. v. SCI Sys., Inc., Civ. A. No. 5662, 1978 WL 22033, at * 1 (Del. Ch. Nov. 27, 1978) (identification serves
to prevent the plaintiff from going through the defendant's information to gain "an unfair bu siness advantage.");
WElL & BROWN, silpra note 4, at 8:58 (claiming that purpose of California's identification statut e is "to prevent
plaintiff from conducting ' fi shing expeditions' into competitors' business files by unfounded claims of trade sec ret
mi sappropriation.").

17

See Roup v. Super. Ct., No. B 188652, L.A.S.C. No. BC328972, 2006 WL 710891 , at

* I (Cal. Ct. App . Mar. 22, 2006)

(unpubli shed).

18

See, e.g. , Storage Tech. Corp. v. Custom Hardware Eng'g & Consulting, Inc. , No. Civ.A. 02- 12102-RWZ, 2005
WL 283200, at * I (0. Mass Feb. 7, 2005) (refelTing to unspecified "rules" when refusing again to require detailed
identification: "C HE objects to the Master's denial of yet another attempt to gain detailed identification of Storage
Tech's copyright and trade secret claims. Much of what the Master rejec ted , the coul1 had previously ruled out of order,
or Storage Tech had in the interim supplied. The JUles do not sanction the degree of detail CHE seeks to extract.");
Storage Tech. Corp. v. Custom Hardware Eng'g & Consulting, Inc., No. Civ.A. 02- 12102-RWZ, 2003 WL 22462494,
at * I (D. Mass Oct. 30, 2003) (on pre-discovery order in software case, rejecting defendant 's attempt to find out exactly
what source code was claimed as secret: "Defendant proposed that plaintiff provide a detailed list of the trade sec ret
allegedly mi sappropriated to which plaintiff objects. Thi s appears to be another request for the identification of each
line of the maintenance source code implicated in these proceedings. I remain unpersuaded that defendant is either
entitled to di scover that level of detail or that such is necessary to mount an adequate defense.").

19

See, e.g., Excelligence Learning Corp. v. Oriental Trading Co. , No. 5:03-CV-4947 JF (RS), 2004 WL 2452834, at *3-4
(N.D. Cal. June 14,2004) (reviewing whether plaintiffs Cal. Civ. Proc. Code. sec. 2019.210 identification statement
was sufficient and asking whether the information was secret instead of whether identification was sufficientl y spec ific);
Momswin, L.L.C. v. Lutes, No. Civ.A. 022 195 KHY , 2003 WL 21554944, at *7 (D. Kan . July 8, 2003) (denying
plaintiffs motion for summary judgment for failure to establish conclusively that information was secret, but seemingly
conflating identification requirement with sec recy requirement in di sc ussion); Lovell Farms, Inc. v. Levy, 641 So. 2d
103, 105 (Fla. Ct. App. 1994) (affirming denial of request for tempormy restraining order and requiring that plaintiff
first show existence of trade secret; seemingly blending an identification requirement and proof of secrecy through

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an in-camera review procedure); Gabriel Int 'l, Inc. v. M &D Indu s. of Lou. , Inc., 7 19 F. Supp. 522, 524-25 (W .D. La.
1989) (in confusing lUling, court required that a trade secret plaintiff prove the existence of a secret early in the lawsuit,
apparently before seeking third party di scovery, but in so doing appears to have conflated the need to identify the
alleged secrets with the ultimate proof of secrecy or non-secrecy).

20

For a detailed description of "combination trade secret" claims and citations to numerou s cases where such claims have
failed, see Tail Graves & Alexander Macgillivray , Combinatioll Trade Secrets alld the Logic of Illtellectllal Property,
20 SANTA CLARA COMPUTER & HIGH TECH. L.l. 261 (2004).

21

Courts sometimes sidestep the identification question by accepting a plaintiffs argument that its entire process or
software was at issue. See, e.g. , Trandes Corp. v. Guy F. Atkinson Co. , 996 F.2d 655, 662 (4th Cir. 1993) (refu sing
to overturn jUlY verdict despite plaintiffs failure to identify precise secrets, and affirming on questionable ground that
entire object code software was secret without addressing whether any secrets were identified in the functionality or
other aspects of the executable software; even with finalized object code, we believe that a plaintiff should identify
what about the software is not generally known to the trade); Touchpoint Solutions, Inc. v. Eastman Kodak Co., 345 F.
Supp. 2d 23 , 28-29 (D. Mass. 2004) (granting in part plaintiffs motion for preliminary injunction despite defendant's
argument that plaintiff had not specifically identified alleged secrets; coul1 accepted plaintiffs characterization of
"so urce code, implementation, overall design and 'di stributed computing model'" as a design that was " unique,
complex, and apparently valuable" without focusing on whether specific details had been identified).

22

See 3M Co. v. Pribyl, 259 F. 3d 587, 595-96 (7th Cir. 2001).

23

See Tan-Line Studios, Inc. v. Bradley, Civ.A. No . 84-5925, 1986 WL 3764, at *7 (E.D. Pa. Mar. 25, 1986) (lUling
following bench trial; referring to general definition of a combination trade secret).

24

See Rohm & Haas Co. v. Adco Chern. Co., 689 F.2d 424, 432 n.7 (3 d Cir. 1982) (plaintiff claimed combination trade
secret in chemical process and "did put in evidence detailed descriptions of the Process," though specificity unclear
from published decision).

25

See, e.g., Meti s Int'! , L.L.C. v. Ace INA Holdings, Inc., No .Civ.A.SA.04CA- 1033-XR , 2005 WL 1072587, at *5 (W.O.
Tex. May 6, 2005) (granting Rule 12(e) motion and requiring plaintiff to plead more about the categories of alleged
secrets being claimed); Cambridge Internet Solutions, Inc. v. Avicon Group, No . 99-1841 , 1999 WL 959673, at *2
(Mass. Ct. App. Sept. 21 , 1999) (granting in pan motion for a more definite statement where plaintiff alleged that some
alleged secrets where in spec ific document, but did not do so for alleged "customer material" secrets); Diodes, Inc.
v. Franzen, 260 Cal. App. 2d 244, 253 (Cal. Ct. App. 1968) (sustaining demurrer to third amended complaint where
plaintiff failed to provide more than highly generalized desc ription of alleged secrets; "the complainant should describe
the subject matter of the trade secret with sufficient pal1icularity to separate it from matters of general knowledge in the
trade

0 1'

of special knowledge of those persons who are skilled in the trade, and to permit the defendant to ascel1ain at

least the boundaries within which the secret lies."); AMP, Inc . v. McCaughey, 38 Pa. D. & C.2d 109, 118 (Pa. Ct. Cm.
PI. 1966) ("In requiring a more spec ific pleading , we are not indicating that plaintiff must plead trade sec ret processes,
trade secrets, or the like. However, it is apparent that plaintiff can provide defendants with at least an identification
and nature of the products, persons, time and places involved, so as to permit them to know that against which they
are to prepare a defen se.").

26

See, e.g. , Automed Tech., Inc . v. Eller, 160 F. Supp. 2d 915, 921 (N. D. Ill. 2001) (general references to categories of
alleged sec rets sufficient to withstand motion to di smi ss, but "plaintiff will ultimately need to identify which spec ific
des igns, software or research defendant allegedly misappropriated."); Kosower v. Gutowitz, No. 00 Civ. 9011 (JGK),
2001 WL 1488440, at *8 (S.D.N.Y. Nov. 21, 2001) (general references to claimed secrets permissible because facts
as alleged mu st be treated as true ; motion to di smi ss denied) ; Labor Ready, Inc. v. Williams Staffing, L.L.C, 149 F.
Supp. 2d 398, 411 (N.D. Ill. 200 I) (denying Rule 12(e) motion because general identification of alleged secrets met
noti ce pleading standards; noting that more would be required at the summary judgment stage;); Cinebase Software v.
Media Guaranty Trust, Inc. , No. C98-1100 FMS, 1998 WL 661465 , at *7-8 (N.D. Cal. Sept. 22,1998) (on motion to
di smi ss, identification " in general terms" sufficed, but "plaintiff will have to identify it s alleged trade secrets with much
greater pat1i cularity in order to prevail on this claim"); Savor, Inc. v. FMR Corp. , No. CIY.A. 00C-IO-249JRS, 2002
WL 393056, at *4 (Sup. Ct. Del. Mar. 14, 2(02) (di smi ssing third amended complaint with prejudice where plaintiff

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did not provide any detail for allegedly misappropriated trade secrets, even though complaint fil ed pattially under seal
and plaintiff pointed to attached documents, claiming "whole process" as secret), rev 'd, 812 A.2d 894, 897 (Del. 2002)
(reversing based on liberal pleading standards).
27

See Dick Corp. v. SNC-Lavalin Const!'. , Inc. , No. 04 C 1043, 2004 WL 2967556 (N.D. Ill. Nov. 24, 2004) (on motion

to dismiss and for a more definite statement, general reference to "Joint Venture Data" sufficed).
28

See Combined Metals of Chi. Ltd. Pat1. v. Ailtek, Inc. , 985 F. Supp. 827, 832 (N.D. Ill. 1997) (to prevent cross-plaintiff

from modifying claims later, and to provide fair notice, court ordered patty to identify "specific, concrete secrets" in
amended cross-complaint).
29

See, e.g., MAl Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 522-23 (9th Cir. 1993) (reversing preliminmy

injunction in pan where plaintiff failed to "spec ifically identify" alleged secrets claimed to reside within a "diagnosti c
software and operating system"); Litton Sys., Inc. v. Sundstrand Corp., 750 F.2d 952, 956 (Fed. Cir. 1984) (applying
apparent federal common law to affirm denial of preliminmy injunction where, among other things, "Litton's Achilles
Heel on thi s record is its insistence on postponing identification or desc ription of such a broad universe of thol/sands
of unidentified trade secrets" ); Cataphote Corp. v. Hudson, 422 F.2d 1290, 1296 (5 th Cir. 1970) (noting that trial co urt
had correctly denied earlier permanent injunction request because plaintiff had no first "specifically identified and
proved" its alleged sec rets); Internet Inc. v. Tensar Poly tech. , Inc ., No. Civ. 05-3 17RHKAIB , 2005 WL 2453170, at
*6 n.8 (D. Minn . Oct. 3, 2005) (denying request for preliminmy injunction when, inter alia, plaintiff did not " identif[y]
specific products that have been successfully modified with the use of information from Brand, much less with the
use of specific information alleged to be Internet's trade sec rets"); Diamond Power Int 'l, Inc. v. Clyde Bergemann,
Inc., 370 F. Supp. 2d 1339, 1346 (N.D. Ga. 2(05) (denying motion for preliminalY injunction when plaintiff claimed
secrets in dry hub carriage for sootblower cleaning system but could not identify specific items claimed as trade
secrets); Hypred S.A. v. Pochard. No . Civ.04-2773(JNPlJGL). 2004 WL 1386149. at * 5 (D. Minn. June 18.2004)
(rejecting trade secret pOl1ion of requested preliminary injunction because plaintiff failed to identify specific alleged
secrets and claimed only generic categories of "product formation and manufacturing secrets"); Vital State Can., Ltd. v.
Dreampak, LLC, 303 F. Supp. 2d 516, 521 -23 (D.N.J. 2(03) (denying preliminmy injunction where plaintiff identified
"overbroad and vague" technology categories, and repeatedly "shifted" it s attempted identifications); Compuware
Corp. v. IBM, No. 02CY70906, 2003 WL 23212863. at *67 (E.D. Mich. Dec. 19, 2003) (rejecting motion for
preliminary injunction where plaintiff claimed secrets in " unique combination of functions and capabilities" in celtain
software, "customer preferences," product documentation, and so urce code; cOUl1 rejected claims, noting "As for its
so urce code, Compuware has for whatever reason fail ed to identify any specific lines of source code that have been
taken by IBM ."); Motorola. Inc . v. Dbtellnc . No. 02 C 3336. 2002 WL 1610982. at * 16 17 (N. D. III. July 22, 2002)
(plaintiff offered somewhat detailed testimony making general claims about several aspects of its technology, but court
found that evidence "confu sing , inconsistent, and lacks specificity;" court was unabl e to tell what exactly plaintiff
wanted to enjoin, pal1icularly where " many aspects of Motorola's process for creating a cellular phone involve publicly
available equipment and standards," and refu sed to issue injunction); FSI Int 'l v. Shumway, No. CIV.02-402RHKSRN,
2002 WL 334409, at *9 (D. Minn . Feb. 26, 2002) (same where plaintiff sought temporary restraining order but offered
only generalized categories instead of identifying alleged secrets); Newleaf Designs, L.L.C v. Bestbins Corp., 168 F.
Supp. 2d 1039, 1043-44 (D. Minn . 2001) (sa me where plaintiff failed to identify several alleged secret s); Am . Sci.
& Eng'g Inc. v. Kelly , 69 F. Supp. 2d 227, 238 (D. Mass. 1999) (preliminalY injunction denied where plaintiff failed

to identify alleged secrets in co llimator device); Vision air, Inc . v. James, 606 S.E.2d 359, 364 (N.C . Ct. App. 2004)
(a ffirming denial of request for preliminmy injunction where plaintiff "has failed to identify with any specificity the
trade sec rets allegedly mi sappropriated, mentioning only broad product and technology categories."); IBM Corp. v.
Sea gate Tech., Inc. , 941 F. Supp. 98 , 100 (D. Minn. 1992) (same where plaintiff admitted that its descriptions of alleged
di sk drive secrets "do not purpol1 to defin e precisely the boundaries of each trade secret."); CVD, Inc . v. Raytheon
Co., Civil Action No. 81-2216-S, 1981 WL 2162 (D. Mass. Dec. 3, 1981 ) (request denied where plaintiff fail ed to
identify alleged sec rets); Lee Pharms. v. Den-Mmt, Inc., 1976 WL 21026 (C. D. Cal. 1976) (somewhat confusing
early case where court delayed hearing on requested preliminmy injunction in part because plaintiff had refused to
identify alleged secrets); Analog Devices, Inc. v. Michal ski , 579 S.E.2d 449, 453-54 (N.C. Ct. App. 2003) (affirming
denial of motion for preliminmy injunction where plaintiff claimed combination trade secret in chip des igns, submitted
document s and schematics, and li sted general concepts such as "the overall design and implementation of Analog's
94xx products"; Coul1 stated " Analog invites thi s COUlt to acknowledge the existence of trade sec rets in the submitted

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information without bearing the burden of identifying those trade secrets. We wi ll not read into Analog's claims specific
identification of devices W0l1hy of trade secret protection when it is Analog's burden to come forward with evidence
of such devi ces."); Grow Co., Inc. v. Chokshi, 2006 WL 551 367, at *4 (N.J . Super. Ct. Mar. 3, 2006) (unpubli shed)
(motion to reconsider denial of preliminary injunction denied where plaintiff "fails to specifically identify a trade
secret" in "processes and formulations"); Iron Age Corp. v. Dvorak, 880 A.2d 657, 665-66 (Pa. Ct. App. 2005) (denying
preliminary injunction based on " inevitable disclosure"-type theory denied, in part because plaintiff failed to identify
all eged ly confidential information at issue); Southwest Research lnst. v. Keraplast Tech., Ltd. , 103 S.W.3d 478, 483
(Tex. Ct. App. 2003) (vacating temporalY restraining order where plaintiff "failed to identify any specific trade secret
that should be protected," and instead broadly claimed that evelything defendant learned from plaintiff was secret).

30

See e.g., Whyte v. Schlage Lock Co. , 101 Cal. App. 4th 1443, 1453 (2002) (holding that plaintiff sufficiently
identified alleged secrets during request for temporalY restraining order though combination of generic categories and
"descriptions made pursuant to" California Code of Civi l Procedure section 20 19.2 10 and other pleadings; publi shed
opinion did not quote from the latter documents, no doubt to preserve the claimed secrecy, thus leaving unclear
what level of prec ision was supplied); Lowell Anderson, Litigation Issues, ill TRADE SECRETS PRACTICE IN
CALIFORNIA 11.2 1 (2d ed. Supp. 2(05) ("UnfOitunately for practitioners seeking gu idance on 2019(d), the court
based it s ruling in part on information contained in the plaintiffs 2019(d) statement, which was not di sclosed in
the publi shed opinion."). At least two subsequent federal cases have incorrectly assumed that Whyte stood for the
propositi on that Ca lifornia's section 20 19.2 10 allows identification by generic categories -- though the subsequent
Advan.ced Modular Sputtering case, di scussed below, mooted the questi on by setting forth the California standard.
See, e.g. , Pixion, Inc. v. Placeware, Inc., 421 F. Supp. 2d 1233, 1242 (N.D. Cal. 2(05); Exce lli gence Learning Corp v.

Oriental Trading Co., Inc., No. 5:03CV-4947 JF (RS). 2004 WL 2452834, at *3-4 (N.D. Cal. June 14, 2004).
31

See Ci sco Sys., Inc v. Huawei Tech. , Co. , 266 F. Supp. 2d 55 1, 555-56 (E.D. Tex. 2003) (granting preliminary
injunction; no sign in publi shed opinion that plaintiff provided specific identifi cation of alleged software code trade
secrets).

32

See, e.g., Corning Inc. v. Picvue Elec., Ltd. , 365 F.3d 156 (2d C ir. 2004) (remanding where trial court's preliminalY
injunction was too vague under FRCP Rule 65; imposs ible to tell from order what information was subject of
the injunction); Roton Barrier, Inc. v. Stanley Works, 79 F. 3d 111 2, 11 2 1-22 (Fed. Cir. 1996) (two post-judgment
in unction s overbroad under Rule 65(d) for failure to specify exactl y what information was barred from use); American
Can Co. v. Mansukhani , 742 F.2d 3 14, 333 (7th Cir. 1984) (reversing preliminalY injunction in part because order was
too vague under Rule 65(d); order baiTed used of "compositionally similar" inks which co uld be "attributed principally"
to the plaintiffs trade secrets without identifying preci sely what was baiTed); E.W. Bliss Co. v. Struthers-Dunn, Inc.,
408 F.2d 1108, 1114- 15 (8th Cir. 1969) (setting aside preliminalY injunction where order was "excessively broad"
under FRCP 65(d) and listed on ly high-level technical categories instead of specify ing exactl y what information was
subject of injunction); Microstrategy, Inc. v. Business Objects, S.A., 33 1 F. Supp. 2d 396, 431 (E.D. Va. 2(04) (in
post-trial , permanent injunction following finding of mi sappropriation, plaintiffs proposed injunction "too broad" in
scope; limiting injunction to "specific document s identified as trade secrets").

33

See, e.g., Leucadia, Inc. v. Applied Extru sion Tech. , Inc. , 755 F. Supp. 635 , 637 (D. Del. 199 1) (denying discovelY
against defendant beca use plaintiffs stat ement too high-level); Miles Inc. v. Cookson Am. , Inc., Civ. A. No. 12,3 10,
1992 WL 13638 1, at * 1 (Del. Ch. June 16, 1992) (unpublished) (statement generally out lining alleged secrets
in sufficient to take di scovelY against defendant); Magnox v. Turner, Ci v. A. No. 11 95 1, 199 1 WL 182450, at * 1 (Del.
Ch. Sept. 10, 1991 ) (unpubli shed) (same where plaintiff served di scovelY without first making identification of alleged
secrets wi th reasonable particularity); Engelhard Corp. v. Savin Corp., 505 A.2d 30, 33 (Del. Ch. 1986) (same where
plaintiff failed to make required statement with reasonable particularity); Data Gen . Corp. v. SCI Sys., Inc ., Civ. A.
No. 5662, 1978 WL 22033 , at *2 (Del. Ch. Nov. 27, 1978) (unpublished) (early case allowing defendant to file papers
with coul1 stating whic h all eged secrets in plaintiffs identification it was " unable to comprehend" in order to rule on
motion for protecti ve order).

34

See Automed Tech., Inc. v. Eller, 160 F. Supp. 2d 9 15, 925-26 (N.D. Ill. 2001) (citing Delaware law to hold that
plaintiff mu st identify alleged secrets with "reasonable pa!1icularity" before taking discovery "so that we can evaluate
the relevance of plaintiffs discovelY and address any objections.").

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35

See L-3 Comm. Corp. v. Reveal Imaging Tech., Inc. , 2004 WL 2915743, at * 13 (Mass. Sup. Ct. Dec. 2, 2004)

(holding that plaintiff must spec ifically identify alleged secrets before commencing di scoveIY). Thi s deci sion is only an
unpubli shed trial court order, however, so the status of pre-di scovery identification remains unclear in Massachusetts.

36

See Porou s Media Corp. v. Midland Brake, Inc., 187 F.R.D. 598, 600 (D. Minn. 1999) (where plaintiff described only

six high-level concepts, coul1 held that trade secret plaintiffs must provide an identification with "the same specificity"
required on a motion for preliminary injunction or at trial ; "The orderly di sposition of cases involving claims of
mi sappropriation of trade secrets cannot permit a situation where the detail s concerning the claimed trade secrets are
not di sclosed at an early date in the litigation.").

37

See Del Monte Fresh Produce Co. v. Dole Food Co., 148 F. Supp. 2d 1322, 1325 (S.D. Fla. 2001) (applying both
California pre-di scovelY statute and Florida common law to require identification with reasonable particularity in a
case where some di scovery had already begun; not entirely clear whether court believed that di strict COUIts applying
Florida trade secret law should apply a pre-discovelY identification procedure in future cases).

38

See Power Conversion, lnc. v. Saft Am., lnc., 1985 WL 1016, at * 1-3 (S.D.N.Y. May 1, 1985) (where both parties
accused one another of misappropriation, matter sent to independent expert to receive parties' submi ss ions and designate
areas for di scoveIY). It should be noted that di scovery masters are subject to confidentiality requirements -- often as
defined in the parties' protective order governing the case.

39

CAL. CIV. PROC. CODE 2019.210 (West 2(06) (''In any action alleging the mi sappropriation of a trade secret
under the Uniform Trade Secrets Act ... before commencing discovelY relating to the trade secret, the palty alleging
the mi sappropriation shall identify the trade secret with reasonable particularity subject to any orders that may be
appropriate under [the UTSA subsection relating to confidentiality orders].").

40

Computer Econ. , lnc. v. Galtner Group, lnc ., 50 F. Supp. 2d 980, 985 n.6 (S.D. Cal. 1999) (quoting from statute's
legi slative hi stOlY).

41

Policies cited include (1) preventing overbroad trade secret accusations that improperly include information in the
public domain ; (2) giving the defendants fair notice of the exact charges against them before di scovelY begins; and (3)
preventing plaintiffs from conducting "fishing expeditions" into the files of bu siness rival s in order to concoct charges
against them. See id. at 985; WElL & BROWN, supra note 4, at 8.60 (describing purposes of statute); M[LGRIM ,

supra note 4, at 16.01 [5][b] (noting fair notice aspect of the statute).

42

See Compufer ECOII., 50 F. Supp. 2d at 985 (detailing purposes of statute and its legi slative hi stOlY). See also Neothermia
Corp. v. Rubicor Med. , lnc., 345 F. Supp. 2d 1042, 1044 (N.D. Cal. 2004) (noting that using the statute in a manner
inconsistent with the Federal Rules of Civil Procedure regarding amendments could create an Erie problem).

43

See, e.g. , Convolve, lnc. v. Compaq Computer Corp., 2002 WL 14361 , at * 1 (S.D.N.Y. Jan. 4, 2002) (noting that
special master had ruled on sec tion 2019.210 iss ues such that discovelY could commence).

44

See, e.g., Myrio Corp. v. Minerva Network Inc., 2001 U.S. Di s!. LEXIS 10461, at * 1-3 (N.D. Cal. April 4, 2001)
(finding statement insufficient) ; Sys. Am. , Inc. v. Softline, Inc., 1996 U.S. Di st. LEXIS 22415, at * 1 (N.D. Cal.
October 30, 1996) (finding statement " insufficient" and "extremely broad" where it outlined "a number of categories
of documents"); Cal. Micro Devices Corp. v. Universal Semiconductor, Inc ., 1995 WL 705 144, at * 1 (N.D. Cal. Nov.
21 , 1995) (noting that becau se plaintiff had provided Cal. Civ. Proc. Code sec. 2019.2 10 statement, defendant had to
respond to deposition questions by plaintiff).

45

See Myrio Corp. , 2001 U.S. Dis!. LEXIS 10461, at * 1-3.

46

See Advanced Modular Sputtering, Inc. v. Super. Ct. , 132 Cal. App. 4th 826, 835-36 (2005).

47

See Dapco Indus., Inc . v. Matec Corp., 1998 WL 563847, at * 1 (Fed. Cir. 1998) (unpublished) (affirming di smi ssal of
complaint because plaintiff did not respond to identification interrogatOlY or COUIt order on motion to compel requiring
the same); StonCorGroup, lnc . v. Campton, 2006 WL 314336, at * 1-2 (W.D. Wash. Feb. 7, 2006) (granting motion to
compel); Excelligence Learning Corp v. Oriental Trading Co. , 2004 WL 2452834, at *3-5 (N.D. Cal. Jun. 14,2004)

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(granting motion to compel interrogatOlY requesting that plaintiff "identify in detail" alleged secrets where plaintiff
had apparently listed only general categories); Compuware Corp. v. Health Care Servo Corp., 2002 WL 485710, at *7

(N .D. Ill. Apr. 1, 2002) (issuing sanctions where defendant won motion to compel regarding interrogatory requesting
identification of alleged secrets but plaintiff "dragged its feet" in responding, and merely li sted functions of allegedly
secret software) ; Multimedia Cablevision, lnc. v. Cal. Sec. Co-op, Inc., 1996 WL 447815, at * 1-2 (D. Kan. lui. 30,
1996) (defendant's interrogatOlY only asked plaintiff to identify the documents which comprised the ba sis for the trade
secret claim; nonetheless, court granted motion to compel a better answer regarding the documents in question and
issued sanctions against plaintiff); Uresil Corp. v. Cook Group, Inc. , 135 F.R.D. 168, 174 (N.D.lll. 1991 ) (granting
motion to compel better interrogatory responses; " [I]t is clear that Uresil has not identified the components and/or
concepts incorporated in the products Uresil claims Cook misappropriated. Nor does Uresil identify all information
and document s alleged by Uresil to be confidential and to have been misappropriated by the defendant."); See also
Microwave Research Corp. v. Sanders Assoc. , Inc. , 110 F.R.D. 669, 673-75 (D. Mass. 1986) (denying plaintiffs motion
to compel defendant to produce documents where, after deposition s, plaintiff identified only a general li st of products
in which it claimed trade sec rets; di sc uss ion and holding are somewhat unclear).

48

See StOll Cor, 2006 WL 314336, at * 1-2.

49

See Universa l Computer Sys., Inc. v. Dealer Solutions, L.L.C ., 183 S.W.3d 741, 745 (Tex. Ct. App. 2005) (dicta
di sc uss ion of prior case proceedings; holding concerned arbitration issues).

50

Id. at 745 n.1.

51

See Unicure, Inc . v. Thurman, 97 F.R.D. 7, 13- 14 (W.D.N.Y. 1982).

52

See Cromaglass Corp. v. Ferm, 344 F. Supp. 924, 928 (M.D. Penn. 1972) (granting motion for imposition of sanctions
for failure to answer intelTogatories, including designation of fact s alleged by defendant s as being establi shed for
purposes of litigation).

53

Id. at 927.

54

See Diversified Tech. , Inc . v. Dubin, 156 F.R.D. 132 (S.D. Mi ss. 1994) (depublished) (issue preclusion sanctions where
plaintiffs refu sal to identify alleged secret s included plaintiffs attorney giving instlUctions not to answer identification
questions during Rule 30(b)(6) deposition).

55

See Xerox Corp. v. IBM Corp., 64 F.R.D. 367, 371-72 (S.D.N.Y. 1970) (in early case where spec ial master ordered
identification, plaintiffs submi ssion of li st of documents in which alleged secrets were claimed to reside was
insufficient).

56

See AlliantGroup, LP v. Axiom Custom Bus. Solutions, Inc. , 2006 WL 568363, at * I (S. D. Tex. 2006) (denying motion
to compel regarding interrogatOlY requesting identification of specific alleged secrets because plaintiff"has sufficiently
identified six categories of purported trade sec ret at iss ue"); C&F Packing Co. v. IBP, Inc. , 1994 WL 36874, at * 12
(N.D. Ill. 1994) (denying motion to compel where plaintiff attached further information identifying alleged secrets in
its supplemental response though court did not clearly state whether any preci sion was supplied and held only that
" IBP has been sufficiently apprised of the basis for C&F's trade secret claim.") (emphasis added).

57

See Norbrook Labs., Ltd. v. G.C . Hanford Mfg. Co. , 2003 WL 1956214, at *2-4 (N.D.N.Y. 2003) (court faulted
defendant for the way it crafted it s di scovelY requests in denying fUl1her identification).

58

See VFD Consulting, Inc. v. 21st Serv., 425 F. Supp. 2d 1037, 1048-49 (N.D. Cal. 2006) (Minnesota law ; plaintiffs
"fatal" error of failing to identify "with any pat1icularity" an alleged secret, refelTing to "the MedDiag system" and
former employee's "experience and best judgment in the combination of the research data" for that system) ; Bradbury
Co. v. Tei ssier-Ducros, 413 F. Supp. 2d 1209, 1222-24 (D. Kan. 2006) (granting summaty judgment for defendant
where plaintiff provided no detail at all on allegedly secret technology and explaining that "Plaintiff has the burden
under the KUTSA to define its trade sec rets with the precision and particularity necessalY to separate it from the general
skill and knowledge possessed by others"); Mextel , Inc. v. Air-Shields, Inc., 2005 WL 226112, at *42 (E.D. Pa. Jan. 31,
2(05) (summary judgment for defendant on trade secret claim about a "sensor module" where plaintifffailed to identify

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what information in documents was allegedly secret); Callaway Golf Co. v. Dunlop Slazenger Group Am. , Inc. , 318
F. Supp. 2d 205 , 215-16 (D. Del. 2(04) (California law; one claim rejected where plaintiff made only "conclusory
allegations" about golf ball technology, refelTing generally to information that former employee obtained); Glynn
Interactive, Inc . v. Itelehealth, Inc. , 2004 WL 439236, at *5 (D. Md. Mar. 9, 2004) (summmy judgment for defendant
where plaintiff made only exceedingly generic claim that secrets were in "experti se and information provided" and
thus fail ed to identify alleged secrets); Nutrition Mgmt. v. Harborside Healthcare Corp., 2004 WL 764809, at *5
(E.D. Pa. Mar. 19, 2004) (summmy judgment for defendant where fraud and other claims involved a trade secret
accusation, but plaintiff did not identify secret); Storage Tech. Corp. v. Cisco Sys., Inc ., 2003 WL 22231544, at *5-6
(D. Minn. Sep. 25, 2003) (s ummaty judgment for defendant where, among other things, plaintiff failed to spec ifically
identify alleged secrets in a network storage appliance); Canter v. West Pub. Co. , 3 1 F. Supp. 2d 1193, 1203 (N.D.
Cal. 1999) (depublished) (same where, among other things, plaintiff di sobeyed court's order to identify alleged secrets
pursuant to Cal. Civ. Code. sec. 2019.210 by pointing to 21 pages of documents); Uti lase, Inc . v. Williamson, 1999 WL
7 17969, at *7 (6th Cir. Sep. 10, 1999) (unpubli shed) (s ummaty judgment where plaintiff vaguely identified alleged
secrets); Lynchval Sys., Inc. v. Chi. Consulting Actuaries, Inc., 1998 WL 151814, at *5-6 (N .D. Ill. Mar. 27,1998)
(summary judgment where plaintiff pointed only to defendant's technology instead of identifying alleged sec rets in its
own technology); Furniture Consultants, Inc . v. Acme Steel

0001'

Corp., 658 N.Y .S.2d 284, 285 (N. Y. Ct. App. 1997)

(total failure to identify alleged secrets); Julie Research Lab. , Inc. v. Select Photographic Eng'g, 810 F. Supp. 513, 520
(S. D.N. Y. 1992) (same where plaintiff failed to identify an alleged secret separate from public domain information),
affd, 998 F.2d 65 (2d Cir. 1993); Uni versal Analytics, Inc . v. MacNeal-Schwendler Corp. , 707 F. Supp. 11 70, 11 77-78
(C. D. Cal. 1989) (same where plaintiff failed to identify any alleged secret s at all).

59

See IMAX Corp v. Cinema Tech. , Inc. , 152 F. 3d 1161, 1167-68 (9th Cir. 1998) (granting summary judgment to
defendant where plaintiff claimed secrets in film projector but in response to defendant 's interrogatory failed to specific
exact trade secret claims " in the precise numerical dimen sions and tolerances with sufficient palticularity").

60

See id. at 1167.

61

See IDX Sys. Corp. v. Epic Sys. Corp., 285 F. 3d 581 . 58384 (7th Cir. 2002).

62

[d.

63

See ECT Int 'l, Inc. v. Zwerlein, 597 N.W .2d 479, 483 (Wi s. Ct. App. 1999) (a ffirming grant of summaty judgment

at 58384.

based on plaintiffs failure to identify alleged software secret s in "software fil e system" becau se it did not "describe
which of the components" of the software were allegedly mi sappropriated).

64

See Twin Vision Corp. v. Bellso uth Commc'n Sys., Inc ., 1998 WL 385135, at *3 (9th Cir. Jun. 22, 1998) (unpubli shed)
(though affirming grant of summary judgment on some claims, the court found plaintiffs generic identification of
"factory access code" to be specifi c enough to identify one trade secret claim); see also McElmuny v. Fergusson, Inc .,
2006 WL 572330, at * 19 (M.D.N .C. Mar. 8, 2006) (denying motion for summary judgment where plaintiff pointed to
"formulas"; unclear whether any further detail was given).

65

See Nil ssen v. Motorola, Inc., 963 F. Supp. 664, 673 (N.D. Ill. 1997). It is possible that the defense fail ed to explain to
the coul1 that the phrases quoted above are not unique in themselves, and that any trade secret would exist in the specifi c
implementation detail s rather than the broader concepts. For example , the asselted but not identified "means" might
be the place where the actual claimed trade secret would reside. A phrase that may appear complex to an outsider may
be generic to one skilled in the art, but such distinctions must be drawn for a coul1reviewing an identification di spute.

66

See Dreamcatcher Software Dev., L.L.c. v. Pop Warner Little Scholars, Inc., 298 F. Supp. 2d 276, 282-83 (D. Conn.

2004).

67

See Charles Schwab & Co. v. Catter, 2005 WL 2369815, at * 12 (N .D. Ill. 2(05) (denying motion for summary judgment
where plaintiff, in opposition papers, detailed its alleged software secrets by Bates number and file type. The court
noted that plaintiff had previously been vague in intelTogatory responses, but "perhaps in part due to the way in which
Defendants framed the question."); Do it Best Corp. v. Passport Software, Inc., 2005 WL 743083, at * 13 (N.D. Ill.
Mar. 3 1, 2005) (plaintiff came "dangerously close" to losing on identification issue, but unlike other cases provided
"specific lines of code and specific software features for which it claims protection."); Luigino's, Inc. v. Peterson, 2002

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WL 122389, at *8-9 (D. Minn. Jan. 28, 2(02) (granting and denying in pal1 motion for summary judgment where
plaintiff sufficiently identified some alleged secrets, though degree of preci sion was not described, but alleged only
general categories and refen"ed to documents for others); Thermodyne Food Servo Prod. , Inc. v. McDonald's Corp. , 940
F. Supp. 1300, 1304-05 (N.D. lll. 1996) (denying motion for summalY judgment on trade secret claim where, among
other things, plaintiff attached an identification to complaint that "identifies each component" of alleged secret s and

was thu s sufficient ; presumably the identification was filed under sea l) ; Harbor Software, Inc. v. Applied Sys., Inc., 887
F. Supp. 86, 90 (S.D.N. Y. 1995) (denying summary judgment where plaintiff identified alleged secrets in appendix to
complaint, but no detail s given about level of specificity); Savor, Inc. v. FMR Corp. , 2004 WL 1965869, at *6-7 (Del.
Super. Ct. luI. 15, 2004) (noting that "[w]hen the plaintiff claims a ' compilation' trade secret , courts generally require
that the trade secret be identified with even greater specificity"; plaintiffs identification, redacted from the publi shed
opinion, was sufficient to withstand motion for summary judgment on trade sec ret element).
68

See Compuware Corp. v. Health Care Servo Corp. , 2002 WL 485710, at *8 (N.D. Ill. Apr. 1, 2002) (where plaintiff
refused to provide exact identification of alleged secrets until " less than two weeks before the close of di scovelY, [it]
severely prejudiced [defendant's] ability to chart a course for discovery and its defense in this case."); Package Mach.
Co. v. Hayssen Mfg. Co., 164 F. Supp. 904, 910 (E.D. Wi s. 1958) (dismissing case for plaintiffs failure to obey pretrial order and identify its alleged sec rets; "Nor should defendants have to wait until plaintiff puts in its case to see
what it has to defend against.").

69

See Cargill, Inc. v. Sears Petroleum & Transp. Corp., 388 F. Supp. 2d 37, 65 n.19 (N.D.N.Y. 2(05) (on post-judgment
motions, jury misappropriation verdict affirmed and by not previously objecting, defendant waived argument that
verdict form did not specifically identify alleged secrets).

70

See Composite Marine Propellers, Inc. v. Van Der Woude, 962 F.2d 1263, 1266-68 (7th Cir. 1992) (reversing judgment
based onjury verdict where plaintifffailed to specifically identify alleged secrets; noting that spec ificity was especially
imp0l1ant given that defendant held a patent in the technology at issue) ; AMP Inc. v. Flei schhacker, 823 F.2d 1199, 1203
(7th Cir. 1987) (affirming judgment for defendant where, among other things, plaintiff "consistently failed throughout
thi s litigation to identify any particularized trade secrets actually at ri sk. Prior to trial , AMP submitted six singlespaced, typewritten pages li sting by general item and category hundreds of pieces of AMP internal information. Other
courts have warned plaintiffs of the risks they run by failing to identify specific trade secrets and in stead producing
long lists of general areas of information which contain unidentified trade secrets."), silperceded by statllte, 765 Ill.
Compo Stat. 1065 (1988), as recognized in PepsiCo, Inc. v. Redmond, 54 F.2d 1262. 126869 (7th Cir. 1995); SL
Montevideo Tech., Inc. v. Eaton Aerospace, L.L.C , No. 03-3302, 2006 WL 1472860, at *3 (D. Minn. May 26, 2006)
Gudgment as a matter of law where plaintiff claimed combination trade sec ret in motor design failed to specifically
identify alleged secrets and instead gave only high-level descriptions; court noted that plaintiff "has not identified the
'guts' of the Montevideo motor or how the specific component PaIts of the Montevideo motor are combined in the
'guts' to constitute a trade secret when taken as a whole." ); MBL (USA) Corp. v. Diekman, 445 N.E.2d 418 , 426-27
(Ill. App. Ct. 1983) (early case affirming lUling on motion in limine that plaintiff must identify alleged secret s before
questioning defendant's witnesses about defendant's technologies); Electro-Craft Corp. v. Controlled Motion, Inc. , 332
N.W.2d 890, 897-98 (Minn. 1983) (in early case on appeal after trial, court affirmed misappropriation holding for one
alleged secret, but reversed on claimed secrets in blUsh less motor where no dimensions or tolerances were identified;
to the reader, however, neither alleged secrets appears to have been identified in detail).

71

See Roton Barrier, Inc . v. Stanley Works, 79 F.3d 1112, 1117 (Fed. Cir. 1996) (losing defendant argued on appeal
that plaintiff failed to prove specific secret s; to the extent thi s was an identification argument (which is not entirely
clear), court held that plaintiff had proved specific secrets, but no discussion of how much detail the plaintiff actually
provided in the trial couI1); Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 662 (4th Cir. 1993) (refusing to
overturn jUlY verdict despite plaintiffs failure to identify preci se secrets, and affirming on questionable ground that
entire object code software was secret without questioning whether any paIticular secrets were identified in such code);
Static Control Components, Inc. v. Darkprint Imaging , Inc., 240 F. Supp. 2d 465 , 476-77 (M.D.N.C. 2002) (on posttrial motion for judgment as a matter of law, COUIt held that plaintiffs corporate deposition witness failed to identify
alleged secrets, and identification was still an open issue about "one week before trial ," but refusing to grant new trial
because of general misconduct by both sides); Smithkline Beecham Pharms. Co. v. Merck & Co., 766 A.2d 442, 447-48

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(Del. 2000) (affirming trial judgment for plaintiff despite defendant's argument that plaintiff had, early on, given only
a broad identification, because a more preci se identification was given "following discovery").

72

See 3M Co. v. Pribyl, 259 F.3d 587, 595-96 (7th Cir. 2001) (refusing to overturn jUlY verdict; allowing judgment

against defendant based on vague claims that secrets existed somewhere in 500 pages of documents; it is unclear if

defendant ever raised identification issue before appeal); Forro Preci sion, Inc. v. IBM Corp., 673 F.2d 1045, 1057 (9th
Cir. 1982) (in early case still cited by trade secret plaintiffs seeking to avoid identification, appellate court rejected
identification argument in cursOlY language following trial cOUl1 judgment and jUlY verdict in favor of plaintiff; couI1's
reasoning was apparently that because defendant obtained material s in which plaintiff claimed secrets, identification
of precise secret s was unnecessalY); Forscan Corp. v. Dresser Indus., Inc., 789 S.W.2d 389, 391-92 (Tex. App.
1990) (rejecting defendant's post-trial argument that plaintiff went beyond alleged secrets previously identified in
interl'OgatOlY response; defendant waited too long to object);.

73

See Data Gen. Corp. v. Grumann Sys. Support Corp., 825 F. Supp. 340, 358-59 (D. Mass. 1993) (plaintiff gave
testimony at trial about its alleged software secrets, but apparently did not actually define them with precision).

74

To thi s end, cOUl1s should assist the pm1ies by expediting review of protective orders that allow the plaintiff to identify
the alleged secrets in a confidential manner, and by permitting identifications of trade secret claims to be filed under
seal when it is necessary to refer to such information in a pleading before the court. These practices are routine in
jurisdictions where trade secret litigation is common, but other courts are not as familiar with them.

75

For a useful m1icle providing advice for a plaintiff seeking to identify alleged secrets in good faith, see Victoria A.
Cundiff, How to Identify YOllr Trade Secrets in Litigation, 574 PLUPat 557 ( 1999).

76

See StonCorGroup, Inc . v. Campton, No. C05-1225J 1R, 2006 WL 314336, at * 1-2 (W.D. Wash. Feb. 7, 2006) (granting
motion to compel; plaintiff used phrase " among other things"); Systems Am. , Inc. v. Softline, Inc. , No. C96-20730

RMW PVT nl . 1996 U.S. Dist. LEXIS 22415, at * 1 (N.D. Cal. Oct. 30. 1996) (finding plaintiffs Cal. Civ. Proc.
2019.210 statement "insufficient" in paI1 because it employed a "catch-a ll" phrase concerning "relevant business

activities") ; Stmthers Scientific Int 'l Corp. v. Gen. Foods Corp., 51 F.R.D. 149, 154 (D. Del. 1970) (where plaintiffs
response to defendant's identification interrogatOlY included a "'catch-all ' provision" claiming additional unspecified
combination trade secret s, motion to compel more specific answer granted; "Struthers should be required to specifically
describe what pm1icular combination of components it has in mind, how these components are combined, and how
they operate in a unique combination. Thi s matter cannot be left to pure speculation and conjecture.").

77

We have seen a case, for example, where the trade secret plaintiff attempted to identify it s alleged trade secrets by
pointing to over one thou sand documents and more than forty million lines of so urce code. The case settled before any
ruling on that tactic, but we believe that the practice is not uncommon.

78
79

See Xerox Corp. v.IBM Corp., 64 F.R.D. 367, 37172 (S.D.N.Y. 1974).

See Staffbridge, Inc. v. Gmy D. Nel son Assoc. , Inc. , No. 024912BLS, 2004 WL 1429935, at *4 (Ma ss. June 11 ,
2004) (where plaintiff failed to identify alleged secrets in software product " literally on the eve of trial ," and where
plaintiffs expel1rep0l1 seeking to make such identification was too vague and conclusory, plaintiff ordered to serve a
affidavit "that sets f0l1h with rigorous and focused particularity what, and only what, the plaintiffs claim to constitute
the trade secrets allegedly mi sappropriated by either of the defendants" or face summary judgment); Compuware Corp.
v. ffiM , No. 02-CV-70906, 2003 WL 23212863, at *6-7 (E.D. Mich. Dec. 19,2003 ) (rejecting motion for preliminary
injunction where plaintiff claimed secrets in " unique combination of functions and capabilities" in certain software,
"c ustomer preferences," product documentation, and source code; court rejected claims, noting "As for its source code,
Compuware has for whatever reason failed to identify any spec ific lines of so urce code that have been taken by IBM.");
Josten s, Inc. v. Nat 'l Computer Sys., Inc. , 318 N.W.2d 691,699-700 (Minn. 1982) (affirming summmy judgment where
court was "plagued with the elasticity of plaintiffs claim. Simply to assel1 a trade secret resides in some combination of
other known data is not sufficient, as the combination itself mu st be delineated with some particularity in establishing
its trade secret status."; rej ec ting plaintiffs various efforts at cobbling together an alleged combination trade secret);
Struthers Scientific Int 'l Corp. v. Gen. Foods Corp., 51 F.R.D. 149, 154 (D. Del. 1970) (where plaintiffs response to
defendant 's identification intelTogatory included a " 'catch-a ll ' provision" claiming additional unspec ified combination
trade secret s, motion to compel more specific answer granted; "Stmthers should be required to specifically describe

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what particular combination of components it has in mind, how these components are combined, and how they operate
in a unique combination. Thi s matter cannot be left to pure spec ulation and conjec ture."); Package Mach. Co. v. Hayssen
Mfg. Co., 164 F. Supp. 904, 907, 9 10 (E.D. Wi s. 1958) (rejecting plaintiffs effort to avoid identifying alleged secrets by
asserting "a hundred different modifications" of technology at issue; di smi ssing case for failure to identify on motion
to compel compli ance with pre-trial order).

80

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

81

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).


82

83

See, e.g. , Anderson, sllpra note 30, at 11 .23 (noting that with categories like customer lists, "there is no middle ground
between identify ing a customer and not making such an identificati on").
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 archit ecture, design definitions or
specificati ons, flow diagrams and flow chaIts, data structures, data compil ations, formulae and algorithms embodied
and used in the software.'" ECT Int 'l, Inc. v. Zwerlein, 597 N.W.2d 479, 483 (Wi s. Ct. App . 1999) (affirming
summary judgment in pmt due to failure to identify trade secrets adequate ly) (quoting Roben C. Scheinfeld & Gary
M. Butter, Us ing Trade Secret Law to Protect Compllter Software, 17 RUTGERS COMPUTER & TECH. L.l . 38 1,
383 (199 1) (fo otnotes 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" transform s source code into
executable objec t code that the computer may read direc tly. The "other tec hnical information" referenced in the article
could be characterized as either specific formulas embodied by and readable within a few lines of so urce code or overall
high-level plans for what the program should accompli sh and how it wi ll accomplish it through certain algorithms
and structure.

84

Trade secret cases abou t executable software are rare because the final , exec utable software product is often the version
so ld to the public, while the underl ying source code remains secret. Such a case cou ld arise if, for examp le, 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 file s. After all , object code is not
so urce code, and mi sappropriating an object code fil e wou ld not be mi sappropriation of the source code used to make
that file. A plaintiff cou ld not accurately identify alleged secrets in object code by describing the source code used to
create it. Indeed, in a different trade sec ret litigati on context -- that of reasonable measures used to protect the alleged
secret, rather than identificati on 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 exec utable objec t code form .... Thi s mean s 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 stribut ed 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 G lenn 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 rea sonable
measures to protect so urce code, and so ld on ly object code software made from that so urce 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.
85

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 "un ique combination of functions and capabilities"
in celtain software, "customer preferen ces," product documentation, and source code; court denied preliminaI),

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injunction, noting: "As for it s so urce code, Compuware ha s for whatever reason fail ed to identify any spec ific lines
of so urce code that have been taken by IBM.").

86

Databases can contain specific content and combin ations of content in field s. A plaintiff may believe that such data
const itutes trade secrets and, if so, that information should be identified.

87

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

88

See il/fra Section III (E).

89

See POOLEY , supra note 4, at 11 .02 ("[T]he nature of a secret process, with its underlying platform of accumu lated
negative data, is such that it cannot practically be restated in exhaustive detail.").

90

See, e.g. , CAL. CIY. PROC. CODE 430. 10(f) (permitting a demUlTer to an "a mbiguous and unintelligible" pleading);
FED. R. CIV . P. 12(e) (permitting a motion for a more definite statement).

91

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.

92

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

93

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).


94

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 refu sed to respond).

95

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.).

96

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 additi onal 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).

97

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 informati on as to whether trial cOUl1 oversaw such amendments).

98

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 comp lete by claiming new detail s of functionality as
trade secrets; coul1 in stead ruled on claims as previously asserted in identifi cation statement).

99

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

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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 examinati on of American's expert's testimony we agree with the

di strict court's conclusion that American attempted to manufacture a material iss ue of fact just to evade the impact of
summary judgment by inexplicably changing its testimony. Thu s, 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.").
100

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).
101

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 function s 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' fee s for many reasons, including plaintiffs claims of "trade secret protection
over several vague cla sses of unprotectable informati on"); Multimedia Cab levision, Inc . v. Cal. Sec. Co-op, Inc., No.
94- 11 30-MLB, 1996 WL 4478 15, at * 1-2 (D. Kan. July 30, 1996) (sancti ons issued against plaintiff where defendant 's
motion to compel better interrogatory answer on documents containing alleged secrets granted); Di versified Tec h., Inc.
v. Dubin, 156 F.R.D. 132 (S. D. Mi ss. 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. Wi s. Mar. 17, 1989) (fees awarded for meritless request for preliminaty injunction where " [t]he plaintiffs case
fail s because of its inability to establi sh any sort of identifiable trade secret which cou ld 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).
102

See C learwater 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

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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
REALTORS, an Illinois non-profit
corporation, and REALTORS
INFORMATION NETWORK, INC., an
Illinois corporation,

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)

Plaintiffs,
v.

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ZILLOW, INC., a Washington corporation,


ERROL SAMUELSON, an individual, and
DOES 1-20,

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2015. The Special Master, having considered all pleadings and papers submitted in

Defendants.
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,

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[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
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counsel, and being fully advised in the premises,

IT IS ORDERED that Zillow, Inc.'s Motion for Protective Order (J.P. Morgan &

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Goldman Sachs Subpoenas) is:

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GRANTED with respect to requests Nos. 1-5, 9-15, 17-18 and 20-21 in Exhibit A to

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the Subpoena Duces Tecum Directed to Goldman Sachs Bank USA, and Goldman, Sachs &

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Co., and therefore those requests are quashed;

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GRANTED IN PART with respect to requests Nos. 8 and 16 in Exhibit A to the

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Subpoena Duces Tecum Directed to Goldman Sachs Bank USA, and Goldman, Sachs &

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Co., such that request No.8 is narrowed to "all documents generated or received in

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connection with the Trulia Acquisition that mention or refer to Move, Inc. and/or

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Realtor.com, and involve any communications with or reference to Errol Samuelson," and
request No. 16 is narrowed to "any analysis or evidence of any specific plan of Move or
Realtor.com regarding an acquisition involving Trulia";

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DENIED with respect to requests Nos. 6, 7 and 19 in Exhibit A to the Subpoena

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Duces Tecum Directed to Goldman Sachs Bank USA, and Goldman, Sachs & Co.;

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Subpoena Duces Tecum Directed to J.P. Morgan Securities LLC, and therefore those

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GRANTED with respect to requests Nos. 1-5, 7-8, 11-18, 20-24 in Exhibit A to the

requests are quashed;

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Subpoena Duces Tecum Directed to J.P. Morgan Securities LLC, such that request No. 10 is

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narrowed to "all documents generated or received in connection with the Trulia Acquisition

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GRANTED IN PART with respect to requests Nos. 10 and 19 in Exhibit A to the

that mention or refer to Move, Inc. and/or Realtor.com, and involve any communications

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im] ORDER GRANTING IN PART


AND DENYING IN PART ZILLOW'S
MOTION FOR PROTECTIVE ORDER - 2
[P1l9?

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

with or reference to Errol Samuelson," and request No. 19 is narrowed to "any analysis or

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evidence of any specific plan of Move or Realtor.com to acquire Trulia"; and


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

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[PRQP8SEB] ORDER GRANTING IN PART


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

Perkins Coie LLP


1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

SM 1000

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Presented by:
PERKINS COlE LLP

MILLER NASH GRAHAM & DUNN LLP

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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:-::575--SFoster@perkinscoie.com
estera.gordon@millemash.com
Kathleen M. O ' Sullivan, WSBA No.
Clemens H. Barnes, WSBA No. 4905
c1em.barnes@millemash.com
27850
KOSullivan@perkinscoie.com
Pier 70
Katherine G. Galipeau, WSBA No. 40812
KGalipeau@perkinscoie.com
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
Attorneys for Defendant Samuelson
Facsimile: 206.359.9000
Attorneys for Defendant Zillow, Inc.
CABLE LANGENBACH KINERK &
BAUERLLP

JENNER & BLOCK LLP

By:c:--:-::--:-:::--:----==~:_:_~-:-:::-- By: _ _ _ _ _ _ _ _ _ _ _ _ __

Jack M. Lovejoy, WSBA No. 36962


Lawrence R. Cock, WSBA No. 20326

Brent Caslin, WSBA No. 36145


Richard L. Stone (Pro Hac Vice)

Suite 3500, 1000 Second Avenue Building


Seattle, Washington 98104-1048
(206) 292-8800 phone
(206) 292-0494 facsimile

633 West 5th Street, Suite 3600


Los Angeles, California 90071
(213) 239-5100 phone
(213) 239-5199 facsimile

Attorneys for Plaintiffs

Attorneys for Plaintiffs

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./I'M' 65E13] ORDER GRANTING IN PART

AND DENYING IN PART ZILLOW'S


MOTION FOR PROTECTIVE ORDER - 4

56920.o025ILEGAL 125312708.1

Perkins Coie LLP


1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

SM 1001