`
`Case 5:18-md-02834-BLF Document 687 Filed 05/21/21 Page 1 of 8
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`
`
`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: PERSONAL WEB TECHNOLOGIES,
`LLC ET AL., PATENT LITIGATION,
`
`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
`Plaintiffs
`
`v.
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Defendants.
`
`PERSONALWEB TECHNOLOGIES, LLC, and
`LEVEL 3 COMMUNICATIONS, LLC,
`
`Plaintiffs,
`
`v.
`
`TWITCH INTERACTIVE, INC.,
`
`Defendant.
`
`Case No.: 5:18-md-02834-BLF
`Case No.: 5:18-cv-00767-BLF
`Case No.: 5:18-cv-05619-BLF
`
`MOTION TO COMPEL COMPLIANCE
`WITH COURT ORDER OF
`AMAZON.COM, INC., AMAZON WEB
`SERVICES, INC., AND TWITCH
`INTERACTIVE INC.
`
`September 30, 2021
`Date:
`9:00 a.m.
`Time:
`Location: San Jose, Courtroom 3, 5th
`Floor
`Judge:
`Hon. Beth L. Freeman
`
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
`
`
`
`
`
`AMAZON’S AND TWITCH’S MOTION TO
`COMPEL COURT ORDER
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`Case 5:18-md-02834-BLF Document 687 Filed 05/21/21 Page 2 of 8
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`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`PLEASE TAKE NOTICE that, on September 30, 2021, at 9:00 a.m., at the United States
`District Court for the Northern District of California, 280 South First Street, San Jose, California,
`in the courtroom of the Honorable Beth L. Freeman, Amazon.com, Inc., Amazon Web Services,
`Inc., and Twitch Interactive, Inc. (collectively, “Amazon”) will and hereby do move the Court
`under Rules 69 and 37 of the Federal Rules of Civil Procedure for an order requiring PersonalWeb
`Technologies, LLC (“PersonalWeb”) to comply with its April 27, 2021 order to furnish information
`allowing Amazon to enforce the judgment entered by the Court.
`Amazon and Twitch base their motion on this notice, the accompanying memorandum of
`points and authorities, all pleadings and documents on file in this action, and such other materials
`or argument as the Court may consider.
`MEMORANDUM OF POINTS AND AUTHORITIES
`On April 27, 2021, the Court ordered that “PersonalWeb shall provide Amazon bank or
`financial accounts within PersonalWeb’s possession, including current balances, by May 7, 2021.”
`(Dkt. 664.) PersonalWeb has failed to do so. Amazon now moves to compel PersonalWeb to
`comply with the Court’s order and requests leave to move for sanctions against PersonalWeb and
`its counsel for their unjustified conduct.
`
`I.
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`
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`BACKGROUND
`On March 2, 2021, the Court awarded Amazon $4,615,242.28 in attorney fees and
`$203,300.10 in non-taxable costs. (Case No. 5:18-md-02834, Dkt. 648.) On March 31, 2021,
`PersonalWeb noticed its appeal of the award. (Dkt. 653.) On April 1, 2021, the automatic 30-day
`stay of enforcement of the judgment expired. Fed. R. Civ. P. 62(a). The Court later granted an
`additional $571,961.71 in attorney fees and $11,120.97 in non-taxable costs in a separate order.
`(Dkt. 656.)
`PersonalWeb has not paid the judgment or posted a supersedeas bond to secure the judgment
`and stay enforcement. See Fed. R. Civ. P. 62; (Dkt. 661-1 ¶ 4). Nearly two months ago, Amazon
`asked PersonalWeb’s counsel of record from Stubbs Alderton & Markiles, LLP whether
`PersonalWeb would post a bond. (Dkt. 659-1 at 5.) PersonalWeb’s counsel responded by stating
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`AMAZON’S AND TWITCH’S MOTION TO
`COMPEL COURT ORDER
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`Case 5:18-md-02834-BLF Document 687 Filed 05/21/21 Page 3 of 8
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`that PersonalWeb “is considering its options,” and inviting Amazon to follow up with him by the
`next week. (Id.) Amazon did so on April 17, 2021, seeking to meet and confer about securing the
`judgment, and asking whether PersonalWeb has sufficient funds to satisfy the judgment or has other
`assets to secure it. (Id. at 4.) PersonalWeb did not provide any information in response to this
`request. (Id.)
`On April 19, Amazon served interrogatories and requests for production of documents
`pursuant to Fed. R. Civ. P. 69 and Cal. Civ. Proc. Code §§ 708.020-708.030, seeking information
`as to whether PersonalWeb has sufficient assets to satisfy judgment. (See Dkts. 659-3, 659-4.)
`PersonalWeb’s counsel responded by stating that they do not represent PersonalWeb with respect
`to Amazon’s attempts to secure or enforce the judgment, and claimed that Amazon has “no
`authority” to serve them with case documents to the extent they concern those issues. (Dkts. 661-
`1 ¶ 3, 659-1 at 3.)
`On April 26, 2021, Amazon filed an ex-parte application for an order compelling a debtor’s
`examination and the production of information and documents relating to PersonalWeb’s assets.
`(Dkts. 661, 662.) On April 27, the Court ordered PersonalWeb to produce its bank and financial
`account information by May 7 and to produce the documents sought by Amazon under Fed. R. Civ.
`P. 69 and Cal. Civ. Proc. Code § 708.030 by May 27. (Dkt. 664.) It separately ordered
`PersonalWeb to appear for a debtor’s examination but later vacated that order. (Dkts. 665, 675.)
`PersonalWeb has retained counsel to represent it with respect to judgment enforcement, Mr.
`Ronald Richards. (Dkts. 673-1, 674-1 ¶ 4.) Amazon served all relevant post-judgment documents
`on Mr. Richards by certified mail, including the Court’s order compelling identification of the bank
`information. (Dkt. 668.) On May 7, 2021, PersonalWeb did not produce any of its bank and
`financial account information as the Court ordered. (See Dkt. 686 (Transcript of May 13, 2021
`Case Management Conference) at 5:20-25; 9:17-18.) PersonalWeb also made no attempt to seek
`relief from the order. (Id. at 7:7-8:4.) In fact, Mr. Richards has reported that he does not even plan
`to appear in this case “except for post judgment motions if for some reason we need to involve the
`Court.” (Dkt. 673-1 at 4.)
`
`AMAZON’S AND TWITCH’S MOTION TO
`COMPEL COURT ORDER
`
`
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`2
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`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`Case 5:18-md-02834-BLF Document 687 Filed 05/21/21 Page 4 of 8
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`II.
`
`ARGUMENT
`A.
`Legal Standard
`Post-judgment discovery is governed by Fed. R. Civ. P. 69(a)(2), which provides, “In aid
`of the judgment or execution, the judgment creditor . . . may obtain discovery from any person—
`including the judgment debtor—as provided in these rules or by the procedure of the state where
`the court is located” (emphasis added). See also A&F Bahamas, LLC v. World Venture Grp., Inc.,
`No. CV 17-8523 VAP (SS), 2018 WL 5961297, at *2 (C.D. Cal. Oct. 19, 2018). The scope of post-
`judgment discovery is “very broad,” and there is “presumption [] in favor of full discovery of any
`matters arguably related to the creditor’s efforts to trace the debtor’s assets and otherwise to enforce
`its judgment.” Id. (citation omitted). “[D]ue to its broad scope, a party is free to use any means of
`discovery allowable under the Federal Rules of Civil Procedure.” Forreststream Holdings Ltd. v.
`Shenkman, No. 16-CV-01609-LB, 2018 WL 6522218, at *4 (N.D. Cal. Dec. 11, 2018) (citation
`omitted).
`Under federal and California law, judgment creditors may propound both document
`requests and interrogatories. See Odnil Music Ltd. v. Katharsis LLC, No. CIVS05-0545WBSEFB,
`2007 WL 1703763, at *2 (E.D. Cal. June 11, 2007); see also Retamco Operating, Inc. v. Carone,
`No. CV0402997CBMRZX, 2007 WL 9752774 (C.D. Cal. June 29, 2007).
`The district court has broad discretion in controlling discovery under these rules. See
`Packaging Corp. of Am. v. Bonert’s, Inc., No. 8:16-cv-00818-JVS-KSx, 2019 WL 1123165, at *1
`(C.D. Cal. Mar. 11, 2019). If the judgment debtor fails to respond to discovery, Federal Rule of
`Civil Procedure 37 allows the court to compel responses and impose sanctions. Odnil Music, 2007
`WL 1703763, at *2. Rule 37(b)(2)(A) states that if a party “fails to obey an order to provide or
`permit discovery . . . the court where the action is pending may issue further just orders,” including
`“treating as contempt of court the failure to obey any order.” Rule 37(b)(2)(B) also provides that
`“the court must order the disobedient party, the attorney advising that party, or both to pay the
`reasonable expenses, including attorney's fees, caused by the failure, unless the failure was
`substantially justified or other circumstances make an award of expenses unjust.” See also Ennova
`Research SRL v. Beebell Inc., No. 16-CV-05114-KAW, 2019 WL 285797, at *2 (N.D. Cal. Jan.
`
`AMAZON’S AND TWITCH’S MOTION TO
`COMPEL COURT ORDER
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`3
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`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`Case 5:18-md-02834-BLF Document 687 Filed 05/21/21 Page 5 of 8
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`22, 2019). A party meets the “substantially justified” standard only when there is a “genuine
`dispute” or if “reasonable people could differ” as to the appropriateness of the motion. JSR Micro,
`Inc. v. QBE Ins. Corp., No. C0903044PJHEDL, 2010 WL 1957465, at *2 (N.D. Cal. May 14,
`2010).
`
`B.
`The Court Should Compel PersonalWeb to Comply with Its Order
`The Court ordered PersonalWeb to provide by May 7 bank or financial accounts within
`PersonalWeb’s possession, similar to the information sought by Amazon’s document requests and
`interrogatories. (Dkt. 664.) PersonalWeb disregarded this order: it did not comply, and it sought
`no relief from the Court to excuse its lack of compliance. The Court should now compel
`PersonalWeb to comply with its order, or face sanctions for its continuing and willful violation.
`Federal courts in California, including in this district, routinely enforce compliance with
`post-judgment discovery, including by sanctioning parties and attorneys who ignore court orders.
`In Forreststream, after the defendant failed to provide meaningful responses to written discovery
`about its ability to satisfy judgment, the court ordered the defendant to provide information about
`its assets. 2018 WL 6522218, at *1. When the defendant failed to comply, the court found a willful
`violation of its order, ordered compliance, and granted the plaintiff’s motion for sanctions. Id. at
`*4, *7. Likewise, in Ennova Research SRL, the court imposed sanctions on the defendant for its
`failure to comply with an order compelling the production of documents for a debtor’s examination.
`2019 WL 285797, at *2. There are numerous similar decisions. See Retamco, 2007 WL 9752774,
`at *1 (denying the judgment debtor’s motion for a protective order against post-judgment discovery
`under Rule 69); Ryan Inv. Corp. v. Pedregal de Cabo San Lucas, No. C 06-3219 JWRS, 2009 WL
`5114077 (N.D. Cal. Dec. 18, 2009) (compelling foreign defendants to complete production of
`documents under Rule 69); Odnil Music, 2007 WL 1703763, at *3 (holding that “[t]he judgment
`creditors are entitled to seek [] information [regarding judgment debtors’ assets] pursuant to the
`Federal and California Rules of Civil Procedure,” granting the judgment creditor’s motion to
`compel responses and imposing sanctions for the judgment debtor’s groundless and untimely
`objections); Packaging Corp. of Am., 2019 WL 1123165, at *6 (granting post-judgment discovery
`against third party).
`
`AMAZON’S AND TWITCH’S MOTION TO
`COMPEL COURT ORDER
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`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`Case 5:18-md-02834-BLF Document 687 Filed 05/21/21 Page 6 of 8
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`This case is no exception. Here, Amazon has properly served the document requests on
`PersonalWeb’s counsel of record through ECF in compliance with Federal Rule of Civil Procedure
`5(b)(1), which provides: “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 specifically
`invited discussion of post-judgment issues up until Amazon first served these written discovery
`requests (Dkt. 659-1 at 5), and at any rate has remained PersonalWeb’s counsel of record thereafter.
`Amazon also served Mr. Richards, the counsel who identified himself as retained by PersonalWeb
`to resist enforcement of the judgment, and who has thus far refused to appear in this Court.
`Stubbs Alderton’s claim that service on it was ineffective is baseless and sanctionable.
`Indeed, in Wordtech Systems, Inc. v. Integrated Network Solutions, Inc., No. CIV S-04-1971 MCE
`EFB, 2009 WL 3126409 (E.D. Cal. Sep. 24, 2009), the debtor made the same argument Stubbs
`Alderton makes here, claiming 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 rejected this argument, 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. In WB Music Corp. v. Royce Int’l Broadcasting Corp.,
`No. EDCV 16-600 JGB (SPx), 2019 WL 11638326, at *2 (C.D. Cal. May 1, 2019), the court
`similarly held that the judgment debtors’ failure to respond to post-judgment discovery showed an
`improper strategy to obstruct satisfaction of the judgment. The court’s finding was based on
`counsel of record’s assertion, after service of the discovery, that they “were no longer representing”
`the debtors in post-judgment proceedings, and counsel’s later attempt to withdraw. Given these
`facts, it denied counsel’s motion to withdraw from the action, finding the substantial delay in post-
`judgment resolution would cause prejudice to the creditors.
`Amazon therefore requests that the Court order PersonalWeb to comply with its April 27
`order to allow Amazon to assess PersonalWeb’s ability to satisfy the Court’s judgment.
`
`AMAZON’S AND TWITCH’S MOTION TO
`COMPEL COURT ORDER
`
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`5
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`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`Case 5:18-md-02834-BLF Document 687 Filed 05/21/21 Page 7 of 8
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`C.
`The Court Should Grant Leave for Amazon to Seek Sanctions.
`Neither PersonalWeb nor Stubbs Alderton have any substantial justification as required by
`Rule 37 for their disregard of the Court’s order, and the Court should grant leave for Amazon to
`seek sanctions against both entities for their attempts to obstruct enforcement of the Court’s
`judgment, including reimbursement of the full cost incurred obtaining PersonalWeb’s bank and
`financial account information.
`Despite originally inviting Amazon to follow up with it regarding post-judgment issues
`including posting a supersedeas bond, Stubbs Alderton changed course when it was served with
`Amazon’s discovery requests. It then ignored the Court’s April 27 order based on a claim that Mr.
`Richards, not Stubbs Alderton, represented PersonalWeb in “post-judgment” proceedings. (See,
`e.g., Dkt. 674 (motion to withdraw) at 1-2.) Stubbs Alderton then attempted to withdraw, filing
`first a motion to withdraw and then three separate versions of an incomplete “notice of substitution”
`document. (Dkts. 678, 679, 683.) The notices, which Stubbs Alderton continued to file after the
`Court directed it to file a motion, do not identify Mr. Richards or any other substitute counsel.
`Instead, they purport to show PersonalWeb’s agreement to appear “in pro per,” despite the well-
`established rule that “[a] corporation must be represented by counsel.” Reading Int’l, Inc. v.
`Malulani Grp., Ltd., 814 F.3d 1046, 1053 (9th Cir. 2016); see also Civil L.R. 3–9(b).
`There is no question that this conduct is sanctionable. See Odnil Music Ltd., 2007 WL
`1703763, at *2 (imposing sanctions); see also Pinterest, Inc. v. Pintrips, Inc., No. 13-CV-04608-
`RS (KAW), 2015 WL 154522 (N.D. Cal. Jan. 12, 2015) (imposing sanctions against both the
`defendant and counsel for failing to comply with court order). Local Rule 7-8(d), however, requires
`that Amazon first request leave of Court to move for sanctions here. Accordingly, Amazon requests
`such leave.
`
`III. CONCLUSION
`For the foregoing reasons, Amazon respectfully requests that (1) the Court grant this motion
`and order PersonalWeb comply with its April 27 order; and (2) the Court allow Amazon to seek
`sanctions from PersonalWeb and Stubbs Alderton & Markiles, LLP.
`
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`AMAZON’S AND TWITCH’S MOTION TO
`COMPEL COURT ORDER
`
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`6
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`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`Case 5:18-md-02834-BLF Document 687 Filed 05/21/21 Page 8 of 8
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`
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`Dated: May 21, 2021
`
`Respectfully submitted,
`
`FENWICK & WEST LLP
`
`
`By: /s/
`TODD R. GREGORIAN (CSB No. 236096)
`
`Attorneys for AMAZON.COM, INC.,
`AMAZON WEB SERVICES, INC., and
`TWITCH INTERACTIVE, INC.
`
`
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`AMAZON’S AND TWITCH’S MOTION TO
`COMPEL COURT ORDER
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`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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