Case 5:18-md-02834-BLF Document 773 Filed 08/22/22 Page 1 of 8
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`
`
`MICHAEL G. FLETCHER (SBN 70849)
`mfletcher@frandzel.com
`THOMAS M. ROBINS III (SBN 54423)
`trobins@frandzel.com
`BRUCE D. POLTROCK (SBN 162448)
`bpoltrock@frandzel.com
`FRANDZEL ROBINS BLOOM
`& CSATO, L.C.
`1000 Wilshire Boulevard, Nineteenth Floor
`Los Angeles, California 90017-2427
`Telephone: (323) 852-1000
`Facsimile: (323) 651-2577
`
`Attorneys for Third Parties BRILLIANT
`DIGITAL ENTERTAINMENT, INC.;
`CLARIA INNOVATIONS, LLC;
`EUROPLAY CAPITAL ADVISORS, LLC;
`MONTO HOLDINGS PTY. LTD.
`
`
`
`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
`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
`
`JOINT STATEMENT RE AMAZON’S
`SECOND MOTION TO COMPEL
`COMPLIANCE WITH COURT ORDER
`BY BRILLIANT DIGITAL
`ENTERTAINMENT, INC., CLARIA
`INNOVATIONS, LLC, EUROPLAY
`CAPITAL ADVISORS, LLC, AND
`MONTO HOLDINGS PTY. LTD.;
`REQUEST FOR SANCTIONS
`
`JOINT STATEMENT RE
`AMAZON’S MTC #2 RFPS
`
`
`
`
`
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`

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`Case 5:18-md-02834-BLF Document 773 Filed 08/22/22 Page 2 of 8
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`I.
`
`AMAZON’S STATEMENT
`The Court ordered Brilliant Digital Entertainment, Inc. (“BDE”), Claria Innovations, LLC
`(“Claria”), Europlay Capital Advisors, LLC (“Europlay”), and Monto Holdings Pty Ltd’s
`(“Monto”) (collectively, “Insiders”) to produce by June 27, 2022 “all other responsive documents
`within any of their possession, custody, or control including electronic communications such as
`email.” (Dkt. 750.) It is now August, and Insiders continue to withhold thousands of documents
`based on a bogus “financial privacy” objection, i.e., the claim that these documents are simply too
`financially sensitive for Amazon to see. But Insiders never raised this objection in response to
`Amazon’s first motion to compel; they never sought a protective order from this Court; and Amazon
`has already offered to accord the documents confidential treatment under the terms of the protective
`order entered in this action (Dkt. 427). “Financial privacy” is never a basis to refuse compliance
`with a court order in these circumstances, and here that objection is just pretext as the Insiders seek
`to avoid turning over the documents most relevant to potential fraudulent transfers and alter ego
`liability and thus key to enabling Amazon to enforce the judgment. The Court should order Insiders
`to comply with its order to produce the documents and sanction them for their refusal.
`First, Insiders abandoned their “financial privacy” objection by failing to raise it in response
`to Amazon’s original motion to compel. (See Dkts. 733 & 771.) Second, financial privacy is not a
`valid basis to withhold discovery at any rate, particularly where, as here, Amazon has agreed that
`Insiders can produce the documents with a confidentiality designation under the protective order.
`See, e.g., Bentkowsky v. Benchmark Recovery, Inc., Civ. A. No. 13-cv-01252-VC (JCS), Dkt. 66
`(N.D. Cal. July 10, 2014) (slip op.) (rejecting financial privacy claim and related redactions;
`ordering production subject to a protective order); Vieste, LLC v. Hill Redwood Dev., Civ. A. No.
`09-cv-04024 JSW DMR, 2011 WL 855831, at *1-2 (N.D. Cal. Mar. 9, 2011) (similar).1 The Court
`
`1 Even assuming that all of Amazon’s other arguments were wrong, Amazon’s interest still
`outweighs the Insiders’ interest in preventing disclosure under the applicable balancing test. See
`Valdez v. Travelers Indem. Co. of Conn., Civ. A. No. 12-cv-04307-SBA (KAW), 2013 WL 3989583,
`at *5 (N.D. Cal. Aug. 2, 2013) (“The right of privacy in California extends to financial privacy in
`litigation, but is ‘subject to balancing the needs of the litigation with the sensitivity of the
`information/records sought.’”) (citation omitted); Hecht, Solberg, Robinson, Goldberg & Bagley,
`LLP v. Super. Ct., 137 Cal. App. 4th 579, 594-95 (2006) (noting weaker rights of business entities
`and affirming order compelling LLP to produce documents that were otherwise discoverable under
`relevancy standards).
`
`JOINT STATEMENT RE
`AMAZON’S MTC #2 RFPS
`
`
`
`1
`
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 773 Filed 08/22/22 Page 3 of 8
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`should reject Insiders’ attempt to characterize their objection as a privilege in an attempt to side-
`step the Court’s order (Dkt. 738). A claim of financial privacy does “not assert any federally
`recognized privilege exempting [a document] from proper discovery.” Bentkowsky, Dkt. 66.
`During meet and confer, insiders identified two general categories of documents that they
`are withholding based on this objection: (1) records of BDE’s internal cash accounts; and (2)
`documents that show the identity of litigation funder Europlay’s clients and investments.2 Both
`categories of documents are at the core of Amazon’s post-judgment enforcement and effort to prove
`alter ego liability. BDE and Europlay have overlapping management with the judgment debtor
`PersonalWeb, and Amazon has already uncovered evidence of Insiders paying PersonalWeb
`business expenses directly, further supporting an alter ego claim. Production of complete financial
`records, including those that identify any other principals or interested parties or shared
`investments, are crucial to showing that these parties did not observe corporate formalities. See
`Zoran Corp. v. Chen, 185 Cal. App. 4th 799, 811-812 (2010) (listing factors, including “the use of
`a corporation as a mere shell, instrumentality or conduit for a single venture or the business of an
`individual or another corporation”).
`Insiders raise two other arguments–first, that courts have upheld a non-party’s objection on
`financial privacy grounds when a subpoena is overbroad, and second, Rule 45(d)(3)(A)’s “undue
`burden” standard. Neither applies. In insiders’ primary authority, Moon v. SCP Pool Corp., 232
`F.R.D. 633 (C.D. Cal. 2005), the court permitted the defendant to object to a subpoena served on a
`non-party, although that non-party had not itself objected, because the subpoena was overbroad.
`232 F.R.D. at 636. Here, the subpoena seeks key information relevant to the alter ego inquiry and
`Insiders waived any overbreadth objection by failing to timely make that objection in their initial
`response to the subpoena or raise it in opposition to the first motion to compel. Moreover, Insiders
`have not substantiated the “undue burden” of producing the withheld documents—they have
`apparently already logged them on a privilege log, a far more labor-intensive activity than simply
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`2
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`2 During meet and confer, insiders only identified these two categories of documents, although
`review of their privilege log shows they appear to be withholding additional categories of
`documents pertaining to BDE and Europlay, as well as withholding documents on claims of
`financial privacy pertaining to Claria and Monto. Amazon’s motion concerns all such documents.
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
`
`JOINT STATEMENT RE
`AMAZON’S MTC #2 RFPS
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 773 Filed 08/22/22 Page 4 of 8
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
`
`
`
`3
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`turning those documents over. Amazon accepted Monto’s brokerage statements as a base line for
`Request No. 42, subject to meet and confer—Amazon also seeks documents showing Monto’s
`business purpose, activities of its Board of Directors or company leadership, and meeting minutes.
`Rule 45 provides that “[t]he court…may hold in contempt a person who, having been
`served, fails without adequate excuse to obey the subpoena or an order related to it.” Fed. R. Civ.
`P. 45(g). A court may also award sanctions under its inherent authority for failure to comply with
`a court order. See Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 982 F.2d 363, 368 (9th
`Cir. 1992). Neither Insiders nor their counsel have adequate excuse for disregard of the Court’s
`order, and the Court should direct them to reimburse Amazon its reasonable attorney fees and costs
`incurred in obtaining compliance. See Pinterest, Inc. v. Pintrips, Inc., Civ. A. No. 13-CV-04608-
`RS (KAW), 2015 WL 154522, at *5-6 (N.D. Cal. Jan. 12, 2015).
`STATEMENT OF BDE, CLARIA, ECA, AND MONTO
`II.
`Federal courts recognize a right to privacy that can be raised in response to discovery
`requests, especially in the context of a Rule 45 subpoena to a nonparty. See Premium Service Corp.
`v. Sperry & Hutchinson Co., 511 F.2d 225, 229 (9th Cir. 1975); Nypl v. JPMorgan Chase & Co.,
`803 Fed. Appx. 135, 137 (9th Cir. 2020). “Although there is no federal common law privilege akin
`to the right of privacy, federal courts ordinarily recognize a constitutionally-based right of privacy
`that can be raised in response to discovery requests.” A. Farber and Partners, Inc. v. Garber, 234
`F.R.D. 186, 191 (C.D. Cal. 2006). “Resolution of a privacy objection requires a balancing of the
`need for the information sought against the privacy right asserted.” (Id.) See also Rule
`45(d)(3)(B)(i) (protecting “commercial information”) and Moon v. SCP Pool Corp., 232 F.R.D.
`633, 637 (C.D. Cal. 2005). Bentkowsky dealt with redactions of financial information from a
`contract that went to the crux of the plaintiffs’ case, not commercial information as to defendant's
`financial condition or dealings with others. Amazon's reliance on Viesta LLC and Valdez is
`misplaced. Both dealt with discovery requests to parties. In Viesta LLC the requests were relevant
`to plaintiff’s punitive damages claim. In Valdez plaintiff’s own allegations put his financial status
`at issue in the case. Neither situation appears here. As Amazon notes, Hecht, Solberg, Robinson,
`Goldberg & Bagley, LLP recognizes that under California law “some privacy rights even for such
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
`
`JOINT STATEMENT RE
`AMAZON’S MTC #2 RFPS
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 773 Filed 08/22/22 Page 5 of 8
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`an artificial entity are recognized by the law.” 137 Cal.App.4th at 594.
`Turning to the balancing test, Third Parties BDE, Monto and ECA3 have identified several
`categories of documents as being subject to their financial privacy objections. BDE has objected
`to producing or separately logging documents in response to the broad-as-space category in Request
`No. 44 of “all documents and communications relating to Your business operations . . . [from
`January 1, 2010 to the present].” BDE has proposed a reasonable compromise, including
`“documents sufficient to show” such matters. See BDE’s Joint Chart filed on August 18, 2022, in
`connection with Amazon's motion to compel, Dkt. 771-6 p. 15. Amazon provides no reason why
`this is not sufficient -- at least until it reviews what was produced. ECA has raised financial privacy
`objections to Request No. 10 (all documents relating to ECA's interest in any litigation not
`connected with PersonalWeb), Request No. 12 (documents relating to suits and threatened litigation
`against ECA from 2010 to present, again unconnected to PersonalWeb), and Request No. 44 ("all
`documents and communications" relating to (versus documents sufficient to show) Your business
`operations from January 1, 2010 to the present). These objections, the bases therefor, and ECA's
`compromise positions are set forth in its Joint Chart filed August 18, 2022, regarding these Requests
`and Requests Nos. 42 and 43, which bear on No. 44. See Dkt. 771-8, pp. 2,6,11-15. Key to ECA's
`objections is that the Requests seek documents related to its litigation advisory and support business
`that has nothing to do with PersonalWeb or the other Respondents that would require it to produce
`or log attorney client/work product materials as to its clients, thus potentially breaking their
`privileges.
`Monto, whose sole business purpose is to invest in and hold publicly traded securities and
`its loans to BDE and PersonalWeb, has produced all documents relating to the two loans and
`redacted brokerage statements from 2015 – May 2022 and has raised privacy objections to having
`to produce brokerage statements back before 2015. Amazon accepted the compromise as to
`brokerage statements in connection with Request No. 42 (see Monto Joint Chart filed August 18,
`2022, Dkt. 771-9, p. 5), yet it nowhere explains what more it seeks with respect to Request No. 44
`(Id., at p. 9.)
`
`
`3 There are no remaining privacy objections as to Claria.
`
`JOINT STATEMENT RE
`AMAZON’S MTC #2 RFPS
`
`
`
`4
`
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 773 Filed 08/22/22 Page 6 of 8
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`Amazon's claim that this private information supposedly “is at the core of Amazon’s post-
`judgment enforcement effort to prove alter ego liability,” is doubletalk. The "core" of its supposed
`alter ego claim revolves around (1) whether there is such a unity of interests between PersonalWeb
`and Respondents that the separate personalities of the corporations no longer exist and (2) whether
`inequitable results will follow if the entity separateness of PersonalWeb is respected. Zoren Corp.
`v. Chin, 185 Cal.App.4th 799, 811-12 (2020). Neither of these elements has anything to do with
`BDE's or ECA's dealings with third parties, but consists of the relationship between Respondents
`and PersonalWeb and each other. Respondents have produced or logged for attorney-
`client/workproduct privilege all responsive documents as to these matters -- and Amazon does not
`suggest otherwise. Respondents have produced documents showing their ownership, principals
`subsidiaries and documents sufficient to show the nature of their business operations since January
`2010. Nowhere in Zoran Corp. will the Court find any factor that even remotely suggests that ECA
`must produce or even log documents as to its litigation support and advisory clients that are
`privileged and highly sensitive and confidential or the identity of litigation in which it has a
`financial interest relating to such clients that is not available by a public records search. None of
`this has any relevance to a potential alter ego claim and Amazon nowhere cogently or otherwise
`explains why it would -- even though ECA has repeatedly expressed such concerns to Amazon.
`Amazon's smug argument that a protective order "cures" all of Respondents' concerns
`should be rejected. If same are not even remotely relevant, Respondents should not have to suffer
`Amazon and its lawyers nosing through their private financial papers and dealings with third
`parties. See Premium Services Corp and Nypl, supra.
`Amazon’s argument that Respondents waived or abandoned their financial privacy
`objections should be rejected for the reasons stated in their Joint Statement in opposition to
`Amazon’s motion to compel filed August 18, 2022, Dkt. 771 at (p. 5:19-p. 6:21): (1) the argument
`does not apply to Monto, (2) there was no waiver or abandonment, and (3) the April 12, 2022 Order
`expressly permitted Respondents to refrain from producing (but requiring them to log) privileged
`and other "protected" documents, which are defined in the Court's Standing Order, as including
`"privacy."
`
`JOINT STATEMENT RE
`AMAZON’S MTC #2 RFPS
`
`
`
`5
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`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 773 Filed 08/22/22 Page 7 of 8
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`
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`Dated: August 22, 2022
`
`Respectfully submitted,
`FENWICK & WEST LLP
`
`By: /s/ Todd R. Gregorian
`TODD R. GREGORIAN
`
`Attorney for AMAZON.COM, INC., AMAZON
`WEB SERVICES, INC., and TWITCH
`INTERACTIVE, INC.
`
`
`
`
`
`
`Dated: August 22, 2022
`
`FRANDZEL ROBINS BLOOM & CSATO, L.C.
`
`
`
`By: /s/ Thomas M. Robins III
`THOMAS M. ROBINS III
`
`Attorney for Third Parties BRILLIANT
`DIGITAL ENTERTAINMENT, INC.;
`EUROPLAY CAPITAL ADVISORS, LLC;
`CLARIA INNOVATIONS, LLC; MONTO
`HOLDINGS PTY. LTD.
`
`
`
`
`
`JOINT STATEMENT RE
`AMAZON’S MTC #2 RFPS
`
`
`
`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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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`Case 5:18-md-02834-BLF Document 773 Filed 08/22/22 Page 8 of 8
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`CERTIFICATION OF CONCURRENCE IN FILING
`I, Todd R. Gregorian, am the ECF user whose identification and password are being used
`to file this Joint Statement. In compliance with N.D. Cal. Civil L.R. 5-1(h)(3), I hereby attest that
`Thomas M. Robins III has concurred in this filing.
`
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`Dated: August 22, 2022
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` /s/ Todd R. Gregorian
`TODD R. GREGORIAN
`
`
`
`JOINT STATEMENT RE
`AMAZON’S MTC #2 RFPS
`
`
`
`7
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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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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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