Case 5:18-md-02834-BLF Document 689 Filed 06/01/21 Page 1 of 7
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`MICHAEL A. SHERMAN (SBN 94783)
`masherman@stubbsalderton.com
`JEFFREY F. GERSH (SBN 87124)
`jgersh@stubbsalderton.com
`WESLEY W. MONROE (SBN 149211)
`wmonroe@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
`(EXCEPT POST JUDGMENT
`COLLECTION MATTERS -
`MOTION TO WITHDRAW
`PENDING)
`
`
`
`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
`
`Case No.: 5:18-md-02834-BLF
`Case No.: 5:18-cv-00767-BLF
`Case No.: 5:18-cv-05619-BLF
`
`JOINT STATEMENT RE MOTION TO
`COMPEL INTERROGATORY
`RESPONSES AND PRODUCTION OF
`DOCUMENTS
`
`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.
`
`JOINT STATEMENT RE OUTSTANDING
`DISCOVERY DISPUTE
`
`
`
`
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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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`FENWICK & WEST LLP
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`Case 5:18-md-02834-BLF Document 689 Filed 06/01/21 Page 2 of 7
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`I.
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`AMAZON’S STATEMENT
`Amazon asks the Court to compel PersonalWeb to provide responses to interrogatories and
`produce documents in response to its post-judgment discovery requests. PersonalWeb provided no
`responses by the deadline to do so and has therefore waived all its objections. See Richmark Corp.
`v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992). Instead it has relied on a
`baseless claim that its counsel of record cannot be served with discovery—an objection for which
`other district courts have rightly issued sanctions—to obstruct the Court’s judgment.
`Factual 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 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 (SAM) whether
`PersonalWeb would post a bond. (Dkt. 659-1 at 5.) PersonalWeb’s counsel invited Amazon to
`follow up with him by the next week, but never provided any substantive response to this inquiry
`or others about whether PersonalWeb has funds to satisfy the judgment. (Id. at 4.)
`On April 19, 2021, 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 Exs. 1-2.) SAM
`responded by stating that they do not represent PersonalWeb with respect to judgment enforcement,
`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.) PersonalWeb has claimed that it retained Mr.
`Ronald Richards to represent it with respect to judgment enforcement. (Dkts. 673-1, 674-1 ¶ 4),
`but Mr. Richards has refused to appear in the case. (Dkt. 673-1 at 4.) PersonalWeb did not serve
`responses to the requests by the deadline to do so.
`On April 26, 2021, Amazon also filed an ex-parte application for an order compelling a
`
`JOINT STATEMENT RE OUTSTANDING
`DISCOVERY DISPUTE
`
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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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`FENWICK & WEST LLP
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`Case 5:18-md-02834-BLF Document 689 Filed 06/01/21 Page 3 of 7
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`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 by May
`27. (Dkt. 664.) It separately ordered PersonalWeb to appear for a debtor’s examination but later
`vacated that order based on California state mileage limits for that procedure. (Dkts. 665, 675.)1
`PersonalWeb provided no bank account information by the deadline—that violation of the Court’s
`order is the subject of a separate motion.
` Motion to Compel. Amazon asks the Court to deem that PersonalWeb has waived its
`objections to Amazon’s requests and provide complete responses to the interrogatories and produce
`documents in response the production requests. 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 . . . 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,” with a “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). 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).
`Amazon served the document requests on SAM through ECF in compliance with Rule
`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.” SAM invited discussion of post-
`judgment issues with it up until Amazon first served these requests (Dkt. 659-1 at 5), but at any
`
`1 PersonalWeb’s accusation below that Amazon “misled” the court as to its jurisdiction to order a
`debtor’s exam is also unfounded. There is a split in authority as to whether such mileage limits
`would apply in federal court. See Vedatech, Inc. v. St. Paul Fire & Marine Ins. Co., No. C 04-1249
`VRW, 2008 WL 2790200, at *2 (N.D. Cal. July 17, 2008) (rejecting argument that federal district
`court must cede jurisdiction to a state tribunal under Cal. Civ. Proc. § 708.160(b)), aff’d sub nom.
`Subramanian v. St. Paul Fire & Marine Ins., 494 F. App’x 817 (9th Cir. 2012); United States v.
`Feldman, 324 F. Supp. 2d 1112 (C.D. Cal. 2004) (same). Moreover, the correct location for a
`debtor’s exam has nothing to do with the issue here, which is PersonalWeb’s failure to respond to
`properly served discovery requests.
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`JOINT STATEMENT RE OUTSTANDING
`DISCOVERY DISPUTE
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`2
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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 689 Filed 06/01/21 Page 4 of 7
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`rate has remained PersonalWeb’s counsel of record. Amazon also served Mr. Richards, the counsel
`who identified himself as retained by PersonalWeb specifically for these post-judgment matters.
`SAM’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 SAM made, 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. The Court should compel responses and a complete production.
`
`II.
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`RESPONSIVE STATEMENT
`SAM’s Position: Stubbs Alderton & Markiles, LLP (“SAM”) has been discharged by its
`client PersonalWeb for purposes of handling post judgment collection proceedings. (Dkt 688, 688-
`1.) PersonalWeb has retained new counsel, Ronald Richards (“Richards”), to represent it post
`judgment, who has yet to substitute into this matter. (Dkt 671, 688-1-688-4). SAM previously filed
`a motion to withdraw (Dkt 674) but later withdrew it (Dkt 684) and thereafter PersonalWeb filed a
`consent motion to substitute PersonalWeb in pro per, in place of SAM (Dkt 679) as a result of the
`Court’s suggestion that in pro per substitution by PersonalWeb was permissible. (Dkt 688-4 at
`10:23-25; 16:20-23.) After the CMC where the Court’s statement was made, however, the Court
`denied the consent motion (Dkt. 685), after which SAM filed a second Motion to Withdraw as
`counsel for PersonalWeb (Dkt. 688), which is pending.
`On April 19, 2021, Amazon for the first time served post judgment interrogatories and
`requests for production on SAM via email. (Dkt 671-2.) SAM took the position that this discovery
`was improperly served based on California law which requires personal service of such discovery
`on the judgment debtor. See Cal. Civ. Proc. § 684.020; Taghizadeh v. Azadi, No. B150817, 2003
`WL 504121, at *5 (Cal. Ct. App. Feb. 26, 2003). SAM nonetheless immediately sent Amazon’s
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`JOINT STATEMENT RE OUTSTANDING
`DISCOVERY DISPUTE
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`3
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`Case 5:18-md-02834-BLF Document 689 Filed 06/01/21 Page 5 of 7
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`written discovery to PersonalWeb and its counsel, Mr. Richards the same day it received it.
`SAM repeatedly advised Amazon that it does not represent PersonalWeb in any post
`judgment collection proceedings. (Dkt 671-2-671-7.) On April 22, 2021, Mr. Gregorian contacted
`SAM to discuss, for the first time, Amazon’s post judgment written discovery and Amazon’s desire
`to seek a judgment debtor exam. (Dkt 671-2 - 671-5.) While Amazon’s counsel previously emailed
`SAM inquiring whether PersonalWeb was going to post a bond (Dkt 659-1), Amazon never
`contacted SAM to discuss written post judgment collection discovery.
`Amazon now apparently seeks sanctions against SAM because it did not respond to written
`discovery on PersonalWeb’s behalf. However, PersonalWeb through its counsel, Mr. Richards told
`SAM that it had no authority to do anything relating to post judgment discovery matters (Dkt 688-
`1, 688-2, 688-3). SAM has never taken the position that written post judgment discovery is not
`permitted. The issue has to do with service. Amazon relies on Odnil Music Ltd., supra, which does
`not hold that service of written post judgment discovery on counsel is proper, and A&F Bahamas,
`LLC, supra, in which the issue of whether service is proper on the judgment debtor only or is proper
`on counsel was not addressed because the written discovery there was personally served on the
`judgment debtor. SAM relies on Cal. Civ. Proc. § 684.020, Fed. R. Civ. P. 69, and Taghizadeh,
`supra, 2003 WL 504121 at *5 which held that service on counsel of post judgment interrogatories
`and request for production of documents, like those at issue here, was invalid because “Section
`684.020 provides that service on a judgment debtor of papers relating to enforcement of the
`judgment shall be made on the judgment debtor itself, rather than its attorney”.
`Notwithstanding the foregoing, SAM acted appropriately by sending the discovery the very
`same day to PersonalWeb and Mr. Richards. SAM cannot and could not respond to the written
`discovery because it does not have the responsive information, nor can it respond for PersonalWeb
`since it was discharged as counsel. Lastly, Amazon’s reliance on Wordtech Systems, Inc., supra, is
`misplaced as SAM did not conduct itself here like the debtor’s former counsel did in that case.
`First, unlike counsel in WordTech, regardless of whether email service was effective, SAM sent the
`written discovery to PersonalWeb and Mr. Richards. Second, immediately upon receiving legal
`authority that it needed to withdraw from the case, despite judgment being entered and the case
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`JOINT STATEMENT RE OUTSTANDING
`DISCOVERY DISPUTE
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`

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`Case 5:18-md-02834-BLF Document 689 Filed 06/01/21 Page 6 of 7
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`closed, SAM filed its motion to withdraw. Lastly, unlike the former counsel in Wordtech, SAM
`informed Amazon’s counsel and the Court that it had been discharged as counsel for PersonalWeb
`in post judgment collection proceedings by (1) filing its CMC statement (Dkt 671), (2) stating as
`much to the Court at the CMC (Dkt 688-4), (3) in its original motion to withdraw (Dkt 674), (3) in
`the consent motion (Dkt 679), (4) in its second pending motion to withdraw, and (5) by informing
`Amazon in writing repeatedly that it did not represent PersonalWeb in these proceedings. (Dkt 671-
`2 - 671-5.) Sanctions are wholly inappropriate as SAM acted appropriately under the circumstances.
`PersonalWeb’s Position: SAM has been requested to inform the Court on behalf of
`PersonalWeb that Amazon misled the Court to issue the order for the Examination Under Oath (Dkt
`664) that the Court later vacated (Dkt 675.) This Court was told by counsel for Amazon that, “The
`proper court for an examination of the debtor is the court in which the money judgment is entered.
`Cal. Civ. Proc. Code § 708.160(a); see also Moore v. Chase, Inc., No. 1:14-CV-01178-SKO, 2016
`WL 4548751, at *2 (E.D. Cal. Sep. 1, 2016) (granting application for debtor’s examination where
`the judgment was entered by the district court).” (Dkt 661.) This was of course wrong as the Court
`later determined and vacated its Order (Dkt 675) after discovering the fact that PersonalWeb is
`located more than 150 miles from the courthouse. (Dkt 688-4, at 3:8-23.) Amazon’s footnote
`mischaracterizes Vedatech and Feldman which applied to debtors outside the United States.
`Further, at the time of the service of the document demand at issue, the case was already
`dismissed and closed. The proper enforcement mechanisms against an out of state judgment debtor
`are controlled by California law. Amazon has refused to enforce this judgment in Texas despite
`this Court directing it to do so. (Dkt 688-4.) There is no further jurisdiction over PersonalWeb until
`personal service is accomplished. This is why there is a procedure to have judgment debtor
`enforcement in the district where a defendant has its corporate offices – in this case, Texas.
`SAM has a pending motion to withdraw. SAM has been specifically advised it has no
`authority to respond to or do anything in the respect of the post judgment matters (Dkt 688-2, 688-
`3) and specifically with respect to post judgment discovery (Id). Amazon wants to use SAM to
`collect its judgment. The Court should not permit Amazon’s action.
`
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`JOINT STATEMENT RE OUTSTANDING
`DISCOVERY DISPUTE
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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 689 Filed 06/01/21 Page 7 of 7
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`Dated: June 1, 2021
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`Respectfully submitted,
`
`FENWICK & WEST LLP
`
`By:
`TODD R. GREGORIAN
`
`Attorneys for AMAZON.COM, INC.,
`AMAZON WEB SERVICES, INC., and
`TWITCH INTERACTIVE, INC.
`
`
`
`
`
`
`Dated: June 1, 2021
`
`STUBBS, ALDERTON & MARKILES, LLP
`
`
`
`By: /s/ Michael A. Sherman
`MICHAEL A. SHERMAN
`
`Attorneys for PERSONALWEB
`TECHNOLOGIES, LLC
`EXCEPT POST JUDGMENT
`COLLECTION MATTERS
`(MOTION TO WITHDRAW PENDING)
`
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`JOINT STATEMENT RE OUTSTANDING
`DISCOVERY DISPUTE
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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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