`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
`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 AMAZON.COM, INC.,
`AMAZON WEB SERVICES INC., and
`TWITCH INTERACTIVE, INC.
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`IN RE: PERSONALWEB TECHNOLOGIES,
`Case No.: 5:18-md-02834-BLF
`LLC ET AL., PATENT LITIGATION,
`
`Case No.: 5:18-cv-00767-BLF
`Case No. 5:18-cv-05619-BLF
`UPDATED CASE MANAGEMENT
`STATEMENT BY AMAZON.COM, INC.,
`AMAZON WEB SERVICES, INC., AND
`TWITCH INTERACTIVE, INC.
`
`
`
`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
`Plaintiffs,
`
`v.
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Defendants.
`
`Case 5:18-md-02834-BLF Document 673 Filed 05/10/21 Page 1 of 4
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`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Plaintiffs,
`
`v.
`
`TWITCH INTERACTIVE, INC.,
`
`Defendant.
`
`
`UPDATED CASE MANAGEMENT
`STATEMENT
`
`
`
`
`
`Case Nos.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
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`FENWICK & WEST LLP
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`Case 5:18-md-02834-BLF Document 673 Filed 05/10/21 Page 2 of 4
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`In advance of the May 13, 2021 case management conference, Amazon.com, Inc., Amazon
`Web Services, Inc., and Twitch Interactive, Inc. (collectively, “Amazon”) submit this statement
`apprising the Court of recent developments.
`On April 27, 2021, the Court ordered PersonalWeb to produce its bank and financial account
`information by May 7, to produce the other records requested by Amazon under Cal. Civ. Proc.
`Code § 708.030 within 30 days, and to appear for a debtor’s examination on May 25. (Dkts. 664
`& 665, Case No. 5:18-md-02834.) PersonalWeb’s counsel of record at Stubbs Alderton & Markiles
`LLP received these orders through ECF but continue to assert that service on them is ineffective.
`In recent email correspondence, for example, PersonalWeb’s counsel stated:
`
`
`As I told you before and I will tell you again, we are not counsel for Personal Web
`in any of the post judgment collection proceedings, only the appeals. Nothing has
`changed. We have never agreed to accept service for the client, verbally or
`otherwise.
`(Ex. E at 3.)
`Amazon also provided the Court’s orders via email to Ronald Richards, an attorney who
`PersonalWeb has now retained to resist enforcement of the judgment. Mr. Richards reported that
`he does not plan to appear in this case “except for post judgment motions if for some reason we
`need to involve the Court.” (Id. at 4.) After receiving the Court’s orders, he nonetheless instructed
`PersonalWeb’s counsel of record that they are “not authorized” by PersonalWeb “to do anything
`post judgment.” (Id. at 1.) Mr. Richards also noted that he will “construe” the Court’s order
`compelling document production as a “subpoena” and he further asserted that neither Court order
`is effective until personally served on PersonalWeb. (Ex. F at 1.)
`To resolve the dispute over service pending further direction from the Court, Amazon
`served all relevant post-judgment documents on Mr. Richards by certified mail (Dkt. 668) and on
`PersonalWeb’s registered agent by personal delivery (Dkt. 670). Amazon also attempted service
`at PersonalWeb’s office but was informed that PersonalWeb closed it two years ago. (Ex. G.)
`PersonalWeb also closed the UPS store mailbox that had served as its address thereafter. (Ex. H.)
`Neither Stubbs Alderton nor Mr. Richards responded to additional requests to identify the
`attorney who would appear for PersonalWeb at the upcoming case management conference. (Exs.
`
`UPDATED CASE MANAGEMENT
`STATEMENT
`
`
`
`1
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`Case Nos.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
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`Case 5:18-md-02834-BLF Document 673 Filed 05/10/21 Page 3 of 4
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`I & J). Instead, they made various proposals that would allow both law firms the practical ability
`to advocate for PersonalWeb’s positions on judgment enforcement, while maintaining the fiction
`that neither represents PersonalWeb before this Court for that purpose. Id. Mr. Richards also stated
`he would file a “motion to quash” the Court’s order but went silent after Amazon offered to conduct
`a telephone conference once he had filed his appearance. (Ex. K.)
`On May 7, 2021, PersonalWeb did not produce any of its bank and financial account
`information as the Court ordered. Instead, it filed a “statement” concerning the case management
`conference, signed on behalf of PersonalWeb by Michael Sherman, but that purports to relay only
`the positions of the Stubbs Alderton law firm. (Dkt. 671.)
`
`Debtor’s Exam. California law requires the creditor to personally serve the order
`compelling attendance at a debtor’s examination not less than 10 days before the date set for the
`examination. Cal. Civ. Proc. Code § 708.110 (d). Doing so both compels the debtor to attend and
`creates a lien on the personal property of the judgment debtor for a period of one year from the date
`of the order. See id. It is unclear whether a creditor seeking to examine a debtor in federal court
`under Rule 69 must personally serve the order compelling attendance. See e.g., Gavrieli Brands
`LLC v. Soto Massini (USA) Corp., No. 3:20-MC-01221, 2020 WL 7226169, at *3 (S.D. Cal. Dec.
`8, 2020) (requiring the plaintiff to personally serve the order on defendant’s registered agent);
`Cerami v. Robinson, 85 F.R.D. 371, 372 (S.D.N.Y. 1980) (service of attorney was sufficient under
`Rules 5 and 69 to require the debtor to appear for a post-judgment deposition). Regardless, Amazon
`has personally served PersonalWeb with the order compelling attendance at the May 25 exam.
`(Dkt. 670.)
`Other Post-Judgment Proceedings. Personal service is not required for discovery requests
`in aid of enforcement under Fed. R. Civ. P. 69 and Cal. Civ. Proc. Code §§ 708.020-030, or for an
`order of the Court compelling document production. Instead, Federal Rule of Civil Procedure
`5(b)(1) governs, and it provides that: “If a party is represented by an attorney, service under this
`rule must be made on the attorney unless the court orders service on the party.” Stubbs Alderton
`has remained PersonalWeb’s counsel of record and specifically invited discussion of post-judgment
`issues up until Amazon first served its written discovery requests. (Dkts. 659 at 5.) Stubbs
`
`REQUEST FOR CASE MANAGEMENT
`CONFERENCE
`
`2
`
`Case Nos.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
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`Case 5:18-md-02834-BLF Document 673 Filed 05/10/21 Page 4 of 4
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`Alderton’s purported refusal to accept service of written discovery and the Court’s orders violates
`Rule 5 and is ineffective.
`While Amazon previously referred to this tactic as “new” (Dkt. 659), it has since found
`another instance in which a judgment debtor tried it. In Wordtech Sys. v. Integrated Network Sols.,
`Inc., No. CIV S-04-1971 MCE EFB, 2009 WL 3126409 (E.D. Cal. Sep. 24, 2009), the debtor
`claimed that its counsel could not be served with discovery in aid of enforcement because he “did
`not represent” the debtor “for post-judgment collections.” Id. at *4. The court ruled that the
`attorney was served properly with the requests, and ordered him to show cause why he should not
`be sanctioned for, inter alia, failing to respond to them; failing to comply with the local rule
`regarding withdrawal from representation; and failing to inform the court or creditor of his claim
`to represent the debtor for a limited purpose or provide any authority for that claim. Id. at *3-4.
`
`
`
`
`Date: May 10, 2021
`
`Respectfully submitted,
`FENWICK & WEST LLP
`
`
`By: /s/ Todd R. Gregorian
`TODD R. GREGORIAN (CSB No. 236096)
`Counsel
`for AMAZON.COM,
`INC.,
`AMAZON WEB SERVICES, INC., and
`TWITCH INTERACTIVE, INC.
`
`
`
`
`
`REQUEST FOR CASE MANAGEMENT
`CONFERENCE
`
`3
`
`Case Nos.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
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