Case 5:18-md-02834-BLF Document 704 Filed 07/20/21 Page 1 of 7
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`IN RE PERSONALWEB
`TECHNOLOGIES, LLC ET AL. PATENT
`LITIGATION.
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`Case No. 18-md-02834-BLF
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`Case No. 5:18-cv-00767-BLF
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`Case No. 5:18-cv-05619-BLF
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`ORDER ON (1) MOTION OF
`AMAZON.COM, INC., AMAZON WEB
`SERVICES, INC., AND TWITCH
`INTERACTIVE, INC. TO COMPEL
`COMPLIANCE WITH COURT ORDER
`AND (2) JOINT DISCOVERY LETTER
`BRIEF RE DISCOVERY IN AID OF
`EXECUTION OF JUDGMENT
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`Re: Dkt. Nos. 687, 689
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`AMAZON.COM, INC. and AMAZON
`WEB SERVICES, INC.,
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`Plaintiffs,
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`v.
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`PERSONALWEB TECHNOLOGIES, LLC
`and LEVEL 3 COMMUNICATIONS, LLC,
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`Defendants.
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`PERSONALWEB TECHNOLOGIES, LLC
`and LEVEL 3 COMMUNICATIONS, LLC,
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`Plaintiffs,
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`v.
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`TWITCH INTERACTIVE, INC.,
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`Defendant.
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`Before the Court are: (1) the motion of Amazon.com, Inc., Amazon Web Services, Inc.,
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`and Twitch Interactive, Inc. (collectively, “Amazon”) seeking to compel compliance with Judge
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`Freeman’s April 27, 2021 order requiring PersonalWeb Technologies, LLC to furnish information
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`in connection with Amazon’s attempt to enforce the judgment entered by the Court and requesting
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`Northern District of California
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`United States District Court
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`Case 5:18-md-02834-BLF Document 704 Filed 07/20/21 Page 2 of 7
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`leave to file a motion for sanctions (Dkt. 687 – the “Motion”); and (2) the Parties’ joint discovery
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`letter brief regarding PersonalWeb’s failure to respond to interrogatories and requests for
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`production served by Amazon in connection with enforcement of the judgment (Dkt. 689 – the
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`“Letter Brief”). The Motion was referred to the undersigned by Judge Freeman. Dkt. 690. The
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`Court held a hearing on the Motion and the Letter Brief on July 20, 2021. Todd Gregorian
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`appeared as counsel on behalf of Amazon; Jeffrey Gersh and Michael Sherman appeared as
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`counsel of record for PersonalWeb.
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`Having carefully reviewed the Motion, the Letter Brief, the case file, and relevant legal
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`authorities, the Court finds that PersonalWeb has waived its objections to post-judgment discovery
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`served by Amazon and ORDERS that within 10 days of the date of this order, PersonalWeb must
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`comply with the April 27, 2021 Order, respond fully and without objection to Amazon’s
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`interrogatories and requests for production, and produce all requested documents.
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`I.
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`RELEVANT BACKGROUND
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`On October 28, 2020, the Court entered judgment against PersonalWeb. Dkt. 643.
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`Following entry of judgment, the Court issued an order awarding Amazon attorney fees and costs
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`for work pre-dating February 2020. Dkt. 648. The Court later awarded Amazon additional
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`attorney fees and costs for expenses incurred between February 2020 and February 2021. Dkt.
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`656.1
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`On April 19, 2021, after both attorney fees awards were issued, Amazon served
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`interrogatories and requests for production seeking information about PersonalWeb’s assets in aid
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`of enforcement of the judgment against PersonalWeb. Dkt. 661-1¶ 3. In the same timeframe,
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`Amazon’s counsel made informal requests asking PersonalWeb’s counsel to identify bank and
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`financial accounts for enforcement purposes. Id. On April 26, 2021, Amazon filed an ex parte
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`application for an order requiring PersonalWeb to appear for a judgment debtor’s examination.
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`Dkt. 661-662.
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`On April 27, Judge Freeman issued an order on Amazon’s ex parte application, which
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`1 The Court has indicated an intention to enter an amended judgment that incorporates the attorney
`fees and costs award along with the terms of the original judgment. Dkt. 702.
`2
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`Northern District of California
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`United States District Court
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`Case 5:18-md-02834-BLF Document 704 Filed 07/20/21 Page 3 of 7
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`stated as follows:
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`• PersonalWeb shall appear for a debtor’s examination before this Court, located at 280
`South 1st Street, San Jose, CA 95113 at the time and date specified in the Order to Appear
`for Examination;
`• PersonalWeb shall provide Amazon bank or financial accounts within PersonalWeb’s
`possession, including current balances, by May 7, 2021; and
`• PersonalWeb shall produce documents responsive to Amazon’s First Set of Requests for
`Production of Documents Pursuant to FRCP 69 and CCP § 708.030 no later than 30 days
`from the date of this Order.
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`Dkt. 664 (the “April 27 Order”). On the same date, Judge Freeman signed and issued an order on
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`California Judicial Council Form AT-138/EJ-125 requiring PersonalWeb to appear for a judgment
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`debtor’s examination. Dkt. 665 (the “Form Order”).
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`On May 13, 2021, Judge Freeman held a Case Management Conference (“CMC”).
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`Among the topics discussed at the CMC were whether PersonalWeb could be compelled to appear
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`for a judgment debtor’s examination in this District and whether the post-judgment written
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`discovery had been properly served. Dkt. 686 (CMC Transcript) at 15-16, 18-19. Judge Freeman
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`indicated that the post-judgment written discovery issues should be raised with the undersigned
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`Magistrate Judge. Id. at 19. Following the Case Management Conference, Judge Freeman issued
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`an order vacating the Form Order requiring a judgment debtor’s examination at Dkt. 665.
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`Dkt.675.
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`On May 21, 2021, Amazon filed the Motion now before the Court, which seeks to compel
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`compliance with the April 27 Order and which Judge Freeman referred to the undersigned. Dkt.
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`687, 690. Specifically, the Motion seeks to compel PersonalWeb to provide the bank or financial
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`account information informally requested by Amazon, which Judge Freeman ordered to be
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`provided in the April 27 Order. Dkt. 687-1. The Motion also asks for leave to file a motion for
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`sanctions. Id. PersonalWeb did not file an opposition to the Motion by the deadline or at any time
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`thereafter. See Dkt. 692. On June 1, 2021, the Parties jointly filed the Letter Brief, in which
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`Amazon asks the Court to compel PersonalWeb to respond to the interrogatories and document
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`requests served on April 19, 2021. Dkt. 689; 689-3.
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`Case 5:18-md-02834-BLF Document 704 Filed 07/20/21 Page 4 of 7
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`Beginning on or around April 22, 2021, attorneys at the law firm that represented
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`PersonalWeb in this case, Stubbs Alderton & Markiles (“SAM”), informed Amazon that they do
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`not represent PersonalWeb in post-judgment proceedings in this case. See Dkt. 659-1. According
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`to SAM, PersonalWeb is represented in post-judgment proceedings by attorney Ronald Richards.
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`See Dkt. 689 at 3. On June 25, 2021, Judge Freeman conditionally granted SAM’s motion to
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`withdraw, stating that “SAM may withdraw upon notice of appearance by Ronald Richards,
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`PersonalWeb’s counsel for post-judgment matters.” Dkt. 694. Mr. Richards has not filed an
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`appearance in this case, nor did he participate in the hearing. Accordingly, SAM remains counsel
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`of record for PersonalWeb.
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`II.
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`DISCUSSION
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`A. Motion
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`As discussed above, the April 27 Order requires PersonalWeb to (1) appear for a judgment
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`debtor’s exam; (2) provide financial and bank account information; and (3) produce documents
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`responsive to Amazon’s requests for production. Although Judge Freeman subsequently vacated
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`the Form Order for a judgment debtor’s examination, she did not vacate the portions of the April
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`27 Order that required PersonalWeb to provide information about its bank and financial accounts
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`and to produce documents responsive to Amazon’s requests for production. PersonalWeb has not
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`opposed the motion to compel it to comply with those portions of the April 27 Order.
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`Accordingly, the Court GRANTS Amazon’s motion to compel PersonalWeb to comply with the
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`April 27 Order.
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`B.
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`Letter Brief
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`In the Letter Brief, Amazon asks the Court to compel PersonalWeb to respond and produce
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`documents in response to interrogatories and requests for production served on April 19, 2021.
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`Dkt. 689. In its portion of the Letter Brief, SAM and PersonalWeb offer several reasons why
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`PersonalWeb should not be compelled to respond to Amazon’s written discovery.2
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`2 Although SAM states in a portion of the Letter Brief entitled “SAM’s Position” that it has been
`“discharged by its client PersonalWeb for purposes of handling post judgment collection
`proceedings,” it also includes a section in the Letter Brief entitled “PersonalWeb’s Position,”
`stating that “SAM has been requested to inform the Court on behalf of PersonalWeb” of certain
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`Case 5:18-md-02834-BLF Document 704 Filed 07/20/21 Page 5 of 7
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`First, SAM challenges the method by which the discovery was served—specifically,
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`service of the discovery on SAM. SAM argues that Amazon’s discovery was “improperly served
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`based on California law which requires personal service of such discovery on the judgment
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`debtor.” Dkt. 689 at 3 (citing Cal. Code Civ. Proc. § 684.020 and Taghizadeh v. Azadi, 2003 WL
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`504121, at *5 (Cal. Ct. App. Feb. 26, 2003)). SAM’s argument regarding the method of service
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`ignores Federal Rule of Civil Procedure 69, which provides that, “[i]n aid of the judgment or
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`execution, the judgment creditor … may obtain discovery from any person—including the
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`judgment debtor—as provided in these rules or by the procedure of the state where the court is
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`located.” Fed. R. Civ. Proc. 69(a)(2) (emphasis added). Accordingly, Amazon was not required
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`to comply with California’s personal service rules; it could alternatively serve discovery as
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`provided in the Federal Rules.
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`In the Letter Brief, Amazon states that it “served the document requests on SAM through
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`ECF in compliance with Rule 5(b)(1).” Dkt. 689 at 2. The meaning of this statement is unclear;
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`neither the document requests nor interrogatories were filed on ECF so PersonalWeb did not
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`receive service of them by that mechanism. In any event, the certificates of service on the
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`interrogatories and requests for production indicate they were served by email on SAM. Dkt. 689-
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`1 and 689-2. Rule 5(b)(2)(E) states that service can be effected by “sending [a paper] by other
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`electronic means that the person consented to in writing.” Neither PersonalWeb nor SAM dispute
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`that PersonalWeb gave consent to receive service electronically, and in fact SAM admits that it
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`received the discovery requests and states that it sent them to PersonalWeb and Mr. Richards the
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`same day SAM received it. Dkt. 689 at 4. Amazon states that it also served the discovery on Mr.
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`Richards by certified mail and on PersonalWeb’s registered agent by personal delivery. Dkt. 673
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`at 1; Dkt. 668; Dkt. 670. Therefore, the Court concludes that service of the discovery was proper.
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`Second, SAM argues that it does not represent PersonalWeb on post-judgment matters,
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`apparently in another effort to prove that service of the written discovery on SAM was ineffective.
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`Dkt. 689 at 4. However, “[c]ounsel may not withdraw from an action until relieved by order of
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`matters. Dkt. 689 at 3, 5.
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`Case 5:18-md-02834-BLF Document 704 Filed 07/20/21 Page 6 of 7
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`Court after written notice has been given reasonably in advance to the client and to all other
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`parties who have appeared in the case.” Civil Local Rule 11-5(a). Here, SAM’s motion to
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`withdraw was granted on the condition that Mr. Richards make an appearance in this action on
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`behalf of PersonalWeb, which he has not done. Moreover, this order conditionally granting the
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`motion to withdraw was not entered until after the discovery at issue was served on SAM.
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`Accordingly, Amazon properly served the written discovery on PersonalWeb by sending it to
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`SAM on April 19, 2021. See Fed. R. Civ. Proc. 5(a)(1)(C) (requiring service of discovery papers
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`on every party); Fed. R. Civ. Proc. 5(b)(1) (“If a party is represented by an attorney, service under
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`this rule must be made on the attorney unless the court orders service on the party.”); see also
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`Wordtech Sys., Inc. v. Integrated Network Solutions, Inc., No. CIV S-04-1971 MCE EFB, 2009
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`WL 3126409, at *2 (E.D. Cal. Sep. 24, 2009) (“Because [the attorney who was served with post-
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`judgment discovery] was attorney of record for [the judgment debtor] at the time the discovery
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`was served on him, such service was proper and effective as to the defendant.”). This outcome is
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`consistent with the principle that the record of representation must be clear for the benefit of both
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`the Court and the litigants, and “[a] party represented by counsel includes a party who has counsel
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`of record whether or not that counsel was in fact authorized to act for the party.” Wordtech, 2009
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`WL 3126409, at *2 (internal quotation marks and citations omitted). Moreover, both Amazon and
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`SAM state that they sent the discovery to Mr. Richards. Dkt. 668; Dkt. 673 at 1; Dkt. 689 at 4.
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`Third, PersonalWeb argues that “at the time of the service of the document demand at
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`issue, the case was already dismissed and closed” and thus “[t]he proper enforcement mechanisms
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`against an out of state judgment debtor are controlled by California law.” Dkt. 689 at 5.
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`PersonalWeb offers no citation to legal authority for this proposition, which in any event is
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`without merit. Rule 69(a)(2) expressly contemplates post-judgment discovery proceedings.
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`Moreover, “[a]fter entering a judgment, a district court retains ancillary jurisdiction to ensure the
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`judgment’s execution.” First Tech. Capital, Inc. v. Airborne, Inc., 380 F. Supp. 3d 217, 220
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`(W.D.N.Y. 2019) (citations omitted). “Put simply, the fact that a case has been closed or
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`terminated is not an obstacle to postjudgment discovery.” Id. (internal quotation marks and
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`citation omitted).
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`Case 5:18-md-02834-BLF Document 704 Filed 07/20/21 Page 7 of 7
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`Accordingly, the Court finds that the interrogatories and requests for production were
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`properly served on PersonalWeb. PersonalWeb failed to respond by the deadline and therefore
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`has waived its objections. See Fed. R. Civ. Proc. 33(b)(4); Richmark Corp. v. Timber Falling
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`Consultants, 959 F.3d 1468, 1473 (9th Cir. 1992); Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir.
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`1981). The Court therefore ORDERS PersonalWeb to respond without objection to the
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`interrogatories and requests for production and to produce documents in response to the requests
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`for production.
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`C.
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`SANCTIONS
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`Amazon’s request for sanctions is DENIED WITHOUT PREJUDICE. Amazon may
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`file a motion for sanctions if PersonalWeb does not provide the information, documents, and
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`discovery responses as required under this order.
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`III. CONCLUSION
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`For the reasons discussed, the Court ORDERS that within 10 days of the date of this
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`order, PersonalWeb must (1) provide the bank and financial account information and documents
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`required under the April 27 Order,(2) respond without objection to the interrogatories and requests
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`for production served on April 19, 2021, and (3) produce all documents requested in the requests
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`for production.
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`SO ORDERED.
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`Dated: July 20, 2021
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`SUSAN VAN KEULEN
`United States Magistrate Judge
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