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`Case 5:18-md-02834-BLF Document 504 Filed 08/23/19 Page 1 of 7
`
`MICHAEL A. SHERMAN (SBN 94783)
`masherman@stubbsalderton.com
`JEFFREY F. GERSH (SBN 87124)
`jgersh@stubbsalderton.com
`SANDEEP SETH (SBN 195914)
`sseth@ stubbsalderton.com
`WESLEY W. MONROE (SBN 149211)
`wmonroe@stubbsalderton.com
`STANLEY H. THOMPSON, JR. (SBN 198825)
`sthompson@stubbsalderton.com
`VIVIANA B. HEDRICK (SBN 239359)
`vhedrick@stubbsalderton.com
`STUBBS ALDERTON MARKILES, LLP
`15260 Ventura Boulevard, 20TH Floor
`Sherman Oaks, CA 91403
`Telephone:
`(818) 444-4500
`Facsimile:
`(818) 444-4520
`
`Attorneys for PERSONALWEB
`TECHNOLOGIES, LLC
`
`
`
`
`J. DAVID HADDEN (CSB No. 176148)
`dhadden@fenwick.com
`SAINA S. SHAMILOV (CSB No. 215636)
`sshamilov@fenwick.com
`MELANIE L. MAYER (admitted pro hac vice)
`mmayer@fenwick.com
`TODD R. GREGORIAN (CSB No. 236096)
`tgregorian@fenwick.com
`RAVI R. RANGANATH (CSB No. 272981)
`rranganath@fenwick.com
`SHANNON E. TURNER (CSB No. 310121)
`sturner@fenwick.com
`CHIEH TUNG (CSB No. 318963)
`ctung@fenwick.com
`FENWICK & WEST LLP
`Silicon Valley Center
`801 California Street
`Mountain View, CA 94041
`Telephone:
`650.988.8500
`Facsimile:
`650.938.5200
`
`Counsel for Defendant
`TWITCH INTERACTIVE, INC.
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`CASE NO.: 5:18-MD-02834-BLF-SVK
`IN RE PERSONAL WEB TECHNOLOGIES,
`LLC, ET AL., PATENT LITIGATION
`
`PERSONALWEB TECHNOLOGIES, LLC, a
`Texas limited liability company, and
`LEVEL 3 COMMUNICATIONS, LLC, a
`Delaware limited liability company
`
`Plaintiffs,
`v.
`TWITCH INTERACTIVE, INC. a Delaware
`corporation,
`
`Defendant.
`
`
`CASE NO.: 5:18-CV-05619-BLF-SVK
`JOINT STATEMENT REGARDING
`PERSONALWEB TECHNOLOGIES,
`LLC’S MOTION TO COMPEL
`DEPOSITIONS OF TWITCH’S 30(B)(6)
`WITNESSES
`
`Trial Date: March 16, 2020
`
`
`
`JOINT STATEMENT RE MOTON TO COMPEL
`DEPOSITIONS OF TWITCH’S 30(B)(6)
`WITNESSES
`
`
`
`
`
`
`
`CASE NO: 5:18-md-02834-BLF-SVK
`CASE NO. 5:18-cv-05619-BLF-SVK
`
`

`

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`
`Case 5:18-md-02834-BLF Document 504 Filed 08/23/19 Page 2 of 7
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`
`I.
`
`PERSONALWEB’S STATEMENT
`This case against Twitch is directed to HTTP caching using content-based identifiers.
`PersonalWeb (“PWeb”) accuses Twitch of using HTTP cache control headers such as max-age value
`and content-based ETags, in conjunction with other aspects of the HTTP protocol, to carry out the
`claimed method of controlling distribution of its webpage content to invalidate and revalidate the
`access rights of browsers. (See, e.g., FAC, Dkt. 13 at ¶¶ 42-52.) PWeb is entitled to information
`regarding all the benefits to Twitch of using the accused HTTP cache control method to calculate
`damages. Nevertheless, Twitch has refused to provide data and competent 30(b)(6) witnesses
`regarding infrastructure cost savings from its use of HTTP caching, data relating to lower web-page
`load times due to caching, or data relating to revenue increase or user-base increase through HTTP
`caching as a result of lower load times. This information is relevant to damages. The parties have
`met and conferred, most recently on August 19, 2019. See deposition notices attached as Exs. 1-2.
`Twitch’s 30(b)(6) witnesses. PWeb sent its first 30(b)(6) deposition notice to Twitch on June 14,
`2019. Twitch designated witnesses for some of the requested deposition topics. Vincent Cellini was
`designated regarding Topics 2(b)-(c), 3(b)-(c), and 5(a)-(b); James Richard regarding Topics 4(a)-(o),
`4(q), 6(h), and 6(g); and Kevin Lin regarding Topics 1 (a)-(b), 2(a)-(b), and 6(a). However, the
`witnesses had large gaps in their knowledge, and were unable to answer many questions even related
`to their designated topics. Subsequently, on July 29, 2019, PWeb served an additional 30(b)(6) notice.
`PWeb needs Twitch to provide knowledgeable deponents on the topics Twitch never designated a
`witness for, or were unable to testify about, and as set forth in July 2019 30(b)(6) depo notice.
`Non-designated topics. Twitch has never designated witnesses on the topics relating to its projected
`financials at the time of its sale to Amazon, its revenue forecasts, or the people within Twitch with the
`most knowledge regarding cache control and cache busting.” (Topics 1(c), 5(e), and 7(a)-7(b),
`respectively.) These topics are relevant to the issues controlling costs/revenue due to cache control.
`Inadequately prepared witnesses. A 30(b)(6) witness must be educated to testify intelligibly
`regarding its designated topics. See §2103 Persons Subject to Examination—Corporations and Other
`Organizations, 8A Fed. Prac. & Proc. Civ. § 2103 (3d ed.) Twitch’s witnesses were not.
`First, Mr. Cellini was designated by Twitch regarding financial topics. However, Mr. Cellini
`
`
`
`JOINT STATEMENT RE MOTON TO COMPEL
`DEPOSITIONS OF TWITCH’S 30(B)(6)
`WITNESSES
`
`
`1
`
`
`
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`CASE NO: 5:18-md-02834-BLF-SVK
`CASE NO. 5:18-cv-05619-BLF-SVK
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`

`

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`CASE NO: 5:18-md-02834-BLF-SVK
`CASE NO. 5:18-cv-05619-BLF-SVK
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`did not know how caching and cache control reduces costs and increases revenue or reduces the cost
`of infrastructure and bandwidth; decreases load time; increases the number of users; and increases
`advertising and subscriber revenues to Twitch over its competitors. See e.g.V. Cellini draft Tr. at 34-
`38, 89, 91-95, 112-120. Mr. Cellini was also unable to testify regarding the cost of adding
`infrastructure to meet demand for additional capacity. See e.g. Id. at 89, 91-99.
`Mr. Cellini identified two additional witnesses to fill in the gaps. Michael Comperda - Twitch’s
`head of platforms - who he believes has personal knowledge of the cost of Twitch’s infrastructure
`investments and the cost/benefit analysis behind deciding whether infrastructure investments would
`be made in response to demand for additional capacity. Twitch has agreed to provide Mr. Comperda
`for deposition. However, Mr. Cellini also identified Daniel MacIntyre as the person most
`knowledgeable of the financial analysis relating to the costs and benefits to Twitch of HTTP caching.
`Twitch has refused to provide Mr. MacIntyre or confirm that Mr. Comperda will be able to answer
`questions regarding such financial analysis. Thus, Mr. MacIntyre must be produced to testify.
`Second, Mr. Richard, a Twitch software engineer, was designated on Topics 4(a)-(o), 4(q),
`6(h), and 6(g). While Mr. Richard was able to confirm the technical aspects of Twitch’s use of HTTP
`browser caching and its methods of cache control, he was not able to answer questions regarding how
`such browser caching reduced infrastructure cost. See e.g. Richard Depo Tr. at 48. Moreover, while
`he was able to verify that Twitch tracks webpage usage and active users, he was unable to provide any
`information regarding total user numbers or webpage loads for any time period. Furthermore, Mr.
`Richard was not able to confirm how much the load time was reduced by HTTP caching. Id. at 99,
`84. Though designated on Topic 6(g), Mr. Richard confirmed he made no investigation regarding the
`benefit to Twitch in [reduced] load time from using the accused cache control. He did not look for
`documents or talk to anyone regarding load time benefit or the quantification thereof nor reduction in
`the necessary bandwidth/infrastructure. Id. at 154-157.
`Third, Twitch designated Kevin Lin, Twitch’s first COO, regarding business operation topics.
`Mr. Lin was asked but had no specific knowledge of the benefits of HTTP caching to Twitch. See Lin
`depo at 103, 105-106. Mr. Lin did not know how page load time affected Twitch’s viewership or user
`base. Id. at 98-99. He knew that efforts were made to decrease load time but not what those efforts
`
`
`JOINT STATEMENT RE MOTON TO COMPEL
`DEPOSITIONS OF TWITCH’S 30(B)(6)
`WITNESSES
`
`
`2
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`

`

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`CASE NO: 5:18-md-02834-BLF-SVK
`CASE NO. 5:18-cv-05619-BLF-SVK
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`were or how much was spent on them or how caching reduced page load time or reduced infrastructure
`cost. Id. at 98-99, 105-106, 115, 124, 126-127. He knew Twitch tracked the number of active users
`and the amount of ad revenue for any given time period, and the amount of page load time in that time
`period and that it could correlate them. He testified that Twitch had such data, yet could not testify
`regarding specifics, and no such data has been produced to PWeb. Id. at 116-119.
`The July 30(b)(6) deposition notice. PWeb anticipates that Twitch will argue that the July 29, 2019
`30(b)(6) deposition notice was improper. However, the Northern District of California held that a
`second corporate deposition does not require leave of court, so long as topics do not overlap. HVAC
`Technology LLC v. Southland Industries, No. 15-cv-02934-PSG, 2016 U.S. Dist. LEXIS 73585, 2016
`WL 3030196 (N.D. Cal. Apr. 8, 2016) (so holding). Further, “second” depositions have been allowed
`where there is new evidence since the first deposition. Graebner v. James River Corp., 130 F.R.D.
`440, 441 (N.D. Cal. 1989). The July 29 deposition notice concerns testimony about new evidence that
`Twitch had not yet produced regarding new production requests.
`TWITCH’S STATEMENT
`II.
`Non-designated topics. Topic 1(c) is unintelligible, but appears to ask about Amazon’s valuation.
`This topic should therefore be directed to Amazon, not Twitch. To the extent topic 1(c) asks about
`Twitch’s revenue and profit, it is redundant of topics 3(b-c) and 5(b), for which Twitch already
`offered a 30(b)(6) witness. Topic 5(e) asks for Twitch’s revenue forecasts. Since the patents-in-suit
`expired in 2016, Twitch’s projected revenue in the future is irrelevant. In addition, Twitch already
`provided its revenue for the relevant time period (2012-2016) as well as a 30(b)(6) witness on these
`topics. Topics 7(a-b) ask for the persons most knowledgeable about cache control/cache busting.
`Twitch designated Mr. Richard on topics relating to cache busting and cache control (e.g., topics
`4(m) and (n)) because he is the person most knowledgeable about these topics in the relevant time
`frame. PWeb also had the opportunity to ask Mr. Richard about others with knowledge on these
`topics. No additional witness is necessary.
`The June 30(b)(6) deposition notice. Twitch designated its International Controller, Mr. Cellini, to
`address discrete financial topics (topics 2(b)-(c), 3(b)-(c), and 5(a)-(b)) relating to Twitch’s revenue
`and pricing. Mr. Cellini was prepared to address each of these topics. PWeb complains that Mr.
`
`
`JOINT STATEMENT RE MOTON TO COMPEL
`DEPOSITIONS OF TWITCH’S 30(B)(6)
`WITNESSES
`
`
`3
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`

`

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`CASE NO: 5:18-md-02834-BLF-SVK
`CASE NO. 5:18-cv-05619-BLF-SVK
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`Cellini could not address “how caching and cache control reduces costs and increases revenue,” but
`Mr. Cellini was not designated for that topic and this topic is nowhere to be found in PWeb’s
`30(b)(6) notice. Moreover, PWeb never even asked Mr. Cellini this question at his deposition. In
`the cited transcript pages, PWeb only asks technical questions about caching including “approaches
`that Twitch takes to caching” and “how Twitch caches.” PWeb also complains that Mr. Cellini
`could not address “the cost of adding infrastructure to meet demand for additional capacity.” To the
`extent this falls within a designated topic, Mr. Cellini explained that Twitch’s financial statements
`separately identify the tech service costs, which include infrastructure costs, and also further break
`down the tech services costs including for bandwidth. See, e.g., Cellini Tr. at 33-35, 83-84.
`When asked who he would speak to about “the various approaches [Twitch takes] to
`reducing tech service costs. . . right now,” Mr. Cellini said he would start with Mr. MacIntyre.
`Cellini Tr. at 43. But since the patents-in-suit expired in 2016, how Twitch reduces costs “right
`now,” in 2019, is completely irrelevant. In addition, Mr. MacIntyre only joined Twitch in June 2017
`and has no knowledge for the relevant time period (2012-2016). To the extent Mr. Comperda has
`information about costs in 2012-2016, Twitch is already making him available for a deposition.
`Twitch designated its Senior Software Engineer, Mr. Richard, to address topics regarding
`Twitch’s use of content-based identifiers (topics 4(a)-(o) and 4(q)) and discrete topics regarding
`Twitch’s avoidance of infringement (topics 6(h) and 6(g)). PWeb concedes that Mr. Richard
`adequately addressed the technical aspects of Twitch’s use of HTTP browser caching and methods
`of cache control, but claims he was not able to answer questions regarding “how [] browser caching
`reduced infrastructure cost,” “total user numbers or webpage loads for any time period,” and “how
`much load time was reduced by HTTP caching.” However, Mr. Richard was not designated for
`these topics because none of these topics appear in PWeb’s 30(b)(6) notice.
`Moreover, PWeb’s assertion that Mr. Richard “made no investigation regarding the benefit to
`Twitch in [reduced] load time from using the accused cache control” for topic 6(g) is misleading. As
`an initial matter, topic 6(g) concerns the benefits to Twitch’s users—not Twitch—from the use of
`content-based ETags. Regardless, Mr. Richard testified that he could address the benefit to Twitch
`from using cache control by drawing on his own historical experience. See Richard Tr. at 154:17-
`
`
`JOINT STATEMENT RE MOTON TO COMPEL
`DEPOSITIONS OF TWITCH’S 30(B)(6)
`WITNESSES
`
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`4
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`Case 5:18-md-02834-BLF Document 504 Filed 08/23/19 Page 6 of 7
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`CASE NO: 5:18-md-02834-BLF-SVK
`CASE NO. 5:18-cv-05619-BLF-SVK
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`24. As such, no additional investigation was necessary.
`Twitch designated its former Chief Operating Officer, Kevin Lin, to testify about Twitch’s
`decision to offer the Twitch platform and services (topics 1(a)-(b)), the services Twitch offers (topic
`2(a)), and Twitch’s policies to avoid infringement (topic 6(a)). Mr. Lin was not designated on any
`of the topics for which PWeb complains he was unable to provide an answer. Instead, the questions
`referenced in its portion of the Statement were wholly outside the scope of its 30(b)(6) notice and
`thus asked in Mr. Lin’s personal capacity. See Alsabur v. Autozone, Inc., No. 13-CV-01689-KAW,
`2014 WL 2772486, at *2 (N.D. Cal. June 18, 2014) (“[I]f the deponent does not know the answer to
`questions outside the scope of the matters described in the [30(b)(6)] notice, then that is the
`examining party’s problem.”) (internal citations and quotation marks omitted).
`The July 30(b)(6) deposition notice. The Northern District of California has repeatedly held that
`PWeb was required to seek leave of the Court to serve a second Rule 30(b)(6) notice. See, e.g.,
`Booker v. ConocoPhillips Co., No. C-07-384-CW, 2008 U.S. Dist. LEXIS 129869, at *4 (N.D. Cal.
`April 25, 2008) (the “Rule 30(a)(2)(A)(ii) limitation applies equally to Rule 30(b)(6) depositions and
`[] Plaintiff must seek leave to notice a second deposition”); Blackwell v. City & County of San
`Francisco, No. C-07-4629-SBA, 2010 U.S. Dist. LEXIS 75453, at *3 (N.D. Cal. June 25, 2010)
`(“under Federal Rule of Civil Procedure 30(a)(2), Plaintiff should have asked for leave to take a
`second 30(b)(6) deposition”); Groupion, LLC v. Groupon, Inc., No. 11-0870-MEJ, 2012 U.S. Dist.
`LEXIS 12684 (N.D. Cal. February 2, 2012) (same).
`PWeb cites HVAC Tech. in support of its argument that a second 30(b)(6) notice is allowed
`where the topics do not overlap. However, HVAC did not consider Rule 30(a)(2)(A)(ii) or the case
`law cited above. And even if HVAC applies, the topics in the second notice that are in dispute
`(Twitch already made a witness available on some of the topics) do overlap those in the first notice.
`PWeb also cites Graebner for the proposition that second Rule 30(b)(6) depositions have been
`allowed where there is new evidence since the first deposition. Even if true, PWeb tellingly does not
`identify any new evidence or explain how the new topics in its second notice relate to any new
`evidence (because they do not). In addition, a party cannot fabricate the appearance of new evidence
`by serving new document requests right before the close of fact discovery.
`
`
`JOINT STATEMENT RE MOTON TO COMPEL
`DEPOSITIONS OF TWITCH’S 30(B)(6)
`WITNESSES
`
`
`5
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`Case 5:18-md-02834-BLF Document 504 Filed 08/23/19 Page 7 of 7
`
`Dated: August 23, 2019
`
`STUBBS, ALDERTON & MARKILES, LLP
`
`
`
`By: /s/ Sandeep Seth
`Michael A. Sherman
`Jeffrey F. Gersh
`Sandeep Seth
`Wesley W. Monroe
`Stantley H. Thompson
`Viviana Boero Hedrick
`
`Attorneys for PERSONALWEB
`TECHNOLOGIES, LLC
`
`MACEIKO IP
`
`Theodore S. Maceiko (SBN 150211)
`ted@maceikoip.com
`MACEIKO IP
`420 2nd Street
`Manhattan Beach, CA 90266
`Telephone: (310) 545-3311
`Facsimile: (310) 545-3344
`
`Attorneys for Plaintiff
`PERSONALWEB TECHNOLOGIES, LLC, a
`Texas limited liability company
`
`FENWICK & WEST LLP
`
`By: /s/ Melanie L. Mayer
`Melanie L. Mayer
`
`
`Attorneys for TWITCH INTERACTIVE, INC.
`
`
`
`Dated: August 23, 2019
`
`
`
`
`
`Dated: August 23, 2019
`
`
`
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`JOINT STATEMENT RE MOTON TO COMPEL
`DEPOSITIONS OF TWITCH’S 30(B)(6)
`WITNESSES
`
`
`6
`
`
`
`
`CASE NO: 5:18-md-02834-BLF-SVK
`CASE NO. 5:18-cv-05619-BLF-SVK
`
`