Case 3:17-cv-00801-BJD-MCR Document 232 Filed 07/30/18 Page 1 of 10 PageID 9694
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`UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF FLORIDA
`JACKSONVILLE DIVISION
`
`ADVICE INTERACTIVE GROUP, LLC,
`
`Plaintiff,
`
`vs.
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`WEB.COM GROUP, INC.,
`Defendant.
`____________________________________/
`
`Case No. 3:17-cv-00801-BJD-MCR
`
`PLAINTIFF’S REPLY IN SUPPORT OF ITS SECOND MOTION TO COMPEL
`DEFENDANT TO RETURN INADVERTENTLY PRODUCED PRIVILEGED
`DOCUMENTS
`
` REDACTED
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`

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`Case 3:17-cv-00801-BJD-MCR Document 232 Filed 07/30/18 Page 2 of 10 PageID 9695
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`In accordance with this Court’s Order (Doc. 182), Advice Interactive Group, LLC
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`(“AIG”) hereby files this Reply in Support of Plaintiff’s Second Motion to Compel Defendant
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`to Return Inadvertently Produced Privileged Documents (“Motion”). Doc. 150.
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`I.
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`INTRODUCTION
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`Web attempts to use its 18-page opposition to a three-page motion to reargue and
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`supplement its arguments that AIG’s privileged communications are subject to the crime-fraud
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`exception.1 See Doc. 173, (Defendant’s Notice of Filing Under Seal) (“Opposition”). But in
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`this Opposition, Web takes its claims of fraud a step further, casting aspersions on AIG’s
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`witnesses and in-house counsel with utterly no support for the claims and insinuations it makes.
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`Web copied AIG’s Visibility Report. That is clear from a simple comparison of AIG’s
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`report and the report Web continued to use after it unilaterally terminated its contract with
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`AIG. See Doc. S-175-A, (Expert Report of Philip Greenspun) at Section 8.3. In the face of
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`this “smoking gun” evidence of copying, Web uses its Opposition as a mechanism to lead the
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`Court down a rabbit hole of its over the top and baseless fraud allegations—presenting AIG as
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`the wrong-doer. The problem is that the evidence—when properly characterized and fully
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`considered in light of the record in its entirety—simply does not support a finding of fraud.
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`As discussed below, and in the Declaration of Michael Archuleta, II, 2 attached hereto
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`as Exhibit A, the document at issue in AIG’s Motion is privileged and thus it is Web’s burden
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`
`1 See Defendant’s Motion to Compel (Doc. 128); Defendant’s Motion for In Camera Review (Doc. 131);
`Defendant’s Motion for Referral to the Register of Copyrights (Doc. 132); Defendant’s Response in Opposition
`to Plaintiff’s Motion to Compel (Doc. 163, Notice of Filing Under Seal).
`2 AIG submits this declaration along with this Reply because at the time AIG filed its Motion, AIG understood
`that Web was opposing its clawback of AIG01237650 purely on the basis of Web’s claim that the crime-fraud
`and “delay” privilege exceptions/waiver apply with respect to this document. See Motion, Ex. A (Doc. 150-1).
`Web now argues that this document is not privileged and that AIG has failed to meet its burden. AIG was unaware
`of this basis for Web’s refusal to return this document at the time it filed its Motion.
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`
`
`1
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`

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`Case 3:17-cv-00801-BJD-MCR Document 232 Filed 07/30/18 Page 3 of 10 PageID 9696
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`to demonstrate that the crime-fraud exception applies. However, much of Web’s Opposition
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`is dedicated to arguing that AIG01237650-51—the single document at issue in AIG’s
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`Motion—contains misrepresentations that somehow prove Web’s allegations of fraud. In so
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`arguing, Web attempts to circumvent its burden of proving the applicability of the crime-fraud
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`exception, by raising this argument as a justification for withholding AIG’s privileged
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`document. As discussed at length in AIG’s Reply in Support of its First Motion to Compel
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`(“First Reply”) (Doc. S-197), Web cannot rely on AIG’s inadvertently produced privileged
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`document as the sole basis for its claim that the document should be produced because the
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`crime-fraud exception applies. And regardless—
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` does not evidence fraud.
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` As such, where the document at issue is clearly privileged and Web’s Opposition (1)
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`mischaracterizes the evidence and contains untruths, and (2) inappropriately alleges fraud and
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`malfeasance unsupported by any evidence, including the document that is the subject of AIG’s
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`Motion, the Court should grant AIG’s Motion and require Web to return this document.
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`II.
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`ARGUMENT
`A.
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`The Document AIG Seeks To Clawback Is Privileged
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`As stated in AIG’s Motion, the document at issue is clearly privileged. Motion at 3.
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`
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` See
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` Id. at ¶¶ 10-
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` Id. at ¶ 12.
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`
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`Ex. A, Archuleta Decl., ¶¶ 9, 13.
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`12.
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`
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`2
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`

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`Case 3:17-cv-00801-BJD-MCR Document 232 Filed 07/30/18 Page 4 of 10 PageID 9697
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` Id. at ¶ 14.
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` Id. at ¶ 13. Further buttressing AIG’s claim that
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`is privileged, is Web’s own Opposition. All of the arguments Web raises to support its
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`allegations of purported fraud are premised on a finding that the document is in fact privileged.
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` See Opposition at 16.3
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`B.
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`Web Improperly Relies On The Document At Issue to Argue Crime-Fraud
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`Web attempts to use
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` at issue in AIG’s Motion and the plethora of
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`misrepresentations noted below to argue that the crime-fraud exception applies to
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`
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` However, Web’s crime-fraud exception argument is improper and ungrounded
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`in the law. Web does not cite to any case law for the proposition that the crime-fraud exception
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`is appropriately raised in an opposition to a motion to compel inadvertently produced
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`privileged documents. Web is attempting to circumvent its burden of proving the applicability
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`of the crime-fraud exception, by raising its argument as a justification for withholding AIG’s
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`privileged document before the Court has made a finding on the applicability of the crime-
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`fraud exception. See Gutter v. E.I. Dupont De Nemours, 124 F. Supp. 2d 1291, 1307 (S.D.
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`Fla. 2000) (stating the party opposing privilege based on the crime-fraud exception has the
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`initial burden of proof). Web should not be allowed to unilaterally retain and use
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`
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`before it meets its burden of proof with respect to the crime-fraud exception.
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`3 Web’s argument that it has a substantial need for these documents because it needs to prove its claim for fraud
`on the Copyright Office is nonsensical and improper—this document does not prove fraud at all. And Web’s
`reliance on this privileged document for its fraud on the Copyright Office claim is improper. See Section II.B.
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`
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`3
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`

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`Case 3:17-cv-00801-BJD-MCR Document 232 Filed 07/30/18 Page 5 of 10 PageID 9698
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`Web cannot rely on AIG’s inadvertently produced privileged document as its basis for
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`its claim that the crime-fraud exception applies here. See Bailey v. Oakwood Healthcare, Inc.,
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`No. 15-11799, 2017 WL 427714, at *4 (E.D. Mich. Feb. 1, 2017) (“Without some plausible
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`indication of fraud outside of the [document], Plaintiff's argument [that the crime-fraud
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`exception is applicable] is conjecture.”). In its Opposition, Web improperly relies on AIG’s
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`privileged document in order to assert that the crime-fraud exception applies to this very same
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`document—only accompanied by a page of narrative containing pure conjecture
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` Opposition at 15. Web’s
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`unsupported claims are improper—and Web’s reliance on the document itself in creating this
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`narrative is an improper attempt to bootstrap its claim that the crime-fraud exception applies.
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`Thus, the Court should not consider any of Web’s fraud allegations in ruling on AIG’s Motion.
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`C.
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`The Crime-Fraud Exception Does Not Apply Here
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`To the extent the Court does consider Web’s crime-fraud arguments, the exception does
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`not apply here, and the document in question does not evidence fraud.4 As an initial matter,
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`Web’s fraud claim rests on disputed facts and legal conclusions that have not been proven, and
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`are hotly contested—specifically Web’s purported authorship and the completion date of the
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`report. Web’s arguments essentially amount to an assertion that Web is right, therefore AIG
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`must have committed fraud. But one does not follow from the other—and indeed the former
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`does not demonstrate any evidence of intent. Because of this failing,
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`4 AIG incorporates its arguments regarding the applicability of the crime-fraud exception in its Opposition to
`Web’s Motion to Compel. Doc. 157.
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`
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`4
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`

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`Case 3:17-cv-00801-BJD-MCR Document 232 Filed 07/30/18 Page 6 of 10 PageID 9699
`Case 3:17-cv-00801-BJD-MCR Document 232 Filed 07/30/18 Page 6 of 10 PageID 9699
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`— This is aupme spmlo...—
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`— ms
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`is entirely consistent with the testimony of AIG’s witnesses throughout this case. -
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`D.
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`Web Mischaracterizes Evidence And Makes Untrue Statements
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`Finally, to fly to support its allegations of fraud, Web mischaracterizes the evidence in
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`this case by igioring key relevant evidence and contradicting statements that would in fact
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`negate its claim of fraud. To remedy these mischaracterizations and untnlths. AIG provides
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`the C01111 with the following clarification of some of Web’s most outlandish assertions:
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`Web’s
`Mischaracterizations
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`AIG’s Response
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`1.
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`Opp. at 2. 15.
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`See, e.g.. Doc.
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`158-E (AIG01361863-80): Doc. S-175-B (AIGOOOS3159-73);
`Doc. S—l75-C AIGOO331275 : Doc. 157-D AIGOOS95063 .
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`2. AIG claims it is the Beyond Ms. Coleman—other AIG employees contend AIG was the
`source of the ideas
`source of the both the ideas and the expression of the three textual
`claimed in the three
`paragraphs in the Visibility Report. See, e. ' ., S—175-L 2018—04—
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`20 J. Kaufman De . Tr. at 18212-25
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` textual paragraphs of
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`
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`the Visibility
`Report—not the
`expression.
`0 . at 2.
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`We onnts t
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`s testlmony.
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`5
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`See S-l75-E (2018—
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`04-18 Berna ette Co ernarr Dep. Tr. at 276221-25. AIG submitted
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`a Visibility Report to the Copyright Office that it believed then. and
`still believes now—it created and completed in 2013. See Doc. S-
`175-G (2018-03-21 M. Lermg Dep. Tr.) at 29: 10-13. Even Web’s
`own witnesses have acknowledged this point. See Doc. S—l75-O
`2018-06-01 Jason Teiclnnan De . Tr.
`at 30:9-11
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`
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`Opp. at 3. 11.
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`4. AIG had motive to Web continuously confuses AIG’s apparent motive to seek justice
`commit fraud on the
`and compensation for Web’s infringement and misappropriation
`C0
`right Office and with a motive to defraud the Copyright Office. AIG’s attempt to
`protect its rights does not equate to a motive to commit fraud. Web
`is essentially arguin that ever
`laintiff in ever case has a motive
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`to commit fraud.
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`. at 3. 11. 3. and 6.
`This assertion is untrue.
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`lawsuit.
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`Opp. at 3. 11. 3.
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`See Ex. B. 6-14-2018 T.
`
`‘ess t 11s testimony
`in its Opposition. and instead makes rursupported allegations in an
`attempt to cast aspersions 011 AIG’s motives—and the motives of a
`former em 10 ee.
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`
`
`I . at l6:18-l8:2.
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`5 Web also points to alleged inaccuracies and inconsistencies in Ms. Coleman‘s statements. Opp. at 6. As detailed
`in AIG‘s First Reply. the alleged “irrisstaterrrerrts‘” Web notes simply do not support a finding of fi'aud. See Doc.
`8-197. Web reference to these statements here is improper as they are not implicated by the instant Motion.
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`

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`Case 3:17-cv-00801-BJD-MCR Document 232 Filed 07/30/18 Page 8 of 10 PageID 9701
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`6. The Copyright
`Office only found the
`textual elements of
`the Visibility Report
`worthy of copyright
`protection.
`Opp. at 7, 15.
`
`
`7. Web always had
`complete control over
`the content sent to its
`customers.
`Opp. at 9.
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`8. Web “Marked up”
`the AIG “Mockups.”
`Opp. at 10, n. 8.
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`As AIG stated in its Opposition to Web’s Motion to Compel (Doc.
`157), the Copyright Office did not find that merely the textual
`elements of the Visibility Report were worthy of protection.
`Instead, the letter granting AIG’s copyright noted that the deposit
`materials contained a “sufficient, although minimal, amount of
`original and creative textual authorship,” and did not state that the
`explanatory text of the Visibility Report was its only creative
`element for purposes of registering the literary work, despite the
`fact that the Copyright Office is empowered to disclaim or exclude
`non-copyrightable content claimed in an application. See Doc. 157
`at 9-10. Despite rigorous review, that was not done here. Web’s
`continued assertion to the contrary is unsupported by the evidence,
`and premised mainly on the Expert Report of Ralph Oman.6
`AIG always had complete control over the Visibility Report—and
`Web has admitted as much in recent briefing. Id. at 5. Web’s
`attempt to backtrack and claim it controlled the Visibility Report in
`its Opposition is inconsistent with its previous statements, and is an
`improper attempt to use this Opposition as a mechanism to respond
`to other Motions pending before the Court.
`The only markups to the Visibility Report present in the record
`evidence are Katie Hernandez’s purported edits sent over in
`February 2014. As AIG has repeatedly asserted in its briefing and
`as Web witnesses have confirmed, the “mark ups” Web relies on
`were to the “sales report” and “Ignite Report”—not the copyrighted
`Visibility Report at issue in this case. Id. at 4.7 Web is merely
`attempting to use these irrelevant changes to confuse the true issue.
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`III. CONCLUSION
`Web’s allegations of fraud cannot gain support by being recited over and over. Instead,
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`the fact remains that the evidence simply does not support any such finding. AIG has shown
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`in this Reply and its Motion, that the document at issue is privileged and that the crime-fraud
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`exception does not apply. AIG respectfully requests the Court grant AIG’s Motion.
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`6 AIG is filing a Motion to exclude the opinions offered by Mr. Oman, who has been excluded nearly ten times
`for offering the exact same type of opinions he purports to offer here. See, e.g., Platypus Wear, Inc. v. Horizonte
`Fabricacao Distribuicao Importacao Exportacao LTDA, 2010 WL 11442639, at *2 (S.D. Fla. June 21, 2010).
`7 Web continues to ignore the demo shown to Web in October 2013 and the screenshots of the Snapshot Report
`(which was relabeled the Baseline Report) in November 2013. See Doc. 158-E (AIG01361863-80) and Doc. S-
`175-B (AIG00053159-73). Web’s claims make no sense after viewing these documents. Web is essentially
`claiming it made changes that the undisputed evidence demonstrates AIG made weeks if not months before it had
`any substantive dealings with Web.
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`
`
`7
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`

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`Case 3:17-cv-00801-BJD-MCR Document 232 Filed 07/30/18 Page 9 of 10 PageID 9702
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`Dated: July 25, 2018
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`Respectfully submitted,
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`FISH & RICHARDSON P.C.
`
`
`By: /s/ Sheryl Koval Garko
` Sheryl Koval Garko (Pro Hac Vice)
` MA Bar No. 657735
`Laura B. Najemy (Pro Hac Vice)
` MA Bar No. 678756
`Ethan J. Rubin (Pro Hac Vice)
`
` MA Bar No. 696375
`Andrew Pearson (Pro Hac Vice)
`
`
`MA Bar No. 688709
` FISH & RICHARDSON P.C.
`One Marina Park Dr.
` Boston, MA 02210
` Telephone: (617) 542-5070
` Facsimile: (617) 542-8906
` garko@fr.com; najemy@fr.com;
`erubin@fr.com; apearson@fr.com
`
`
`
`and
`
` Stephen R. Senn
` Florida Bar No. 0833878
` PETERSON & MYERS, P.A.
` P. O. Box 24628
` Lakeland, FL 33802-4628
` Telephone: (863) 683-6511
` Facsimile: (863) 682-8031
` ssenn@petersonmyers.com
`
` Attorneys for Plaintiff,
` Advice Interactive Group, LLC.
`
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`8
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`Case 3:17-cv-00801-BJD-MCR Document 232 Filed 07/30/18 Page 10 of 10 PageID 9703
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`CERTIFICATE OF SERVICE
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`I certify that on this 25th day of July, 2018, I served the foregoing document on all
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`counsel of record via e-mail:
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`
`
`Frederick D. Page
`Lawrence J. Hamilton II
`Michael M. Groper
`Holland & Knight LLP
`50 N. Laura St., Suite 3900
`Jacksonville, FL 32202
`frederick.page@hklaw.com
`larry.hamilton@hklaw.com
`michael.gropper@hklaw.com
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`Attorneys for Defendant
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`Jacob W. S. Schneider
`Courtney L. Batliner
`Holland & Knight LLP
`10 St. James Avenue
`11th Floor
`Boston, MA 02116
`Jacob.Schneider@hklaw.com
`Courtney.Batliner@hklaw.com
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`Attorneys for Defendant
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`Tiffany A. Roddenberry
`Holland & Knight LLP
`315 S. Calhoun St., Suite 600
`Tallahassee, FL 32301
`tiffany.roddenberry@hklaw.com
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`Attorney for Defendant
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`Thomas E. Bishop
`Helen Peacock Roberson
`Tanner Bishop
`One Independent Dr.,
`Suite 1700
`Jacksonville, FL 32202
`tbishop@tannerbishop.com
`hpeacock@tannerbishop.com
`shofner@tannerbishop.com
`gcassada@tannerbishop.com
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`Attorneys for Defendant
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`
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`/s/ Sheryl Koval Garko
`Sheryl Koval Garko
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`9
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