Case 5:18-md-02834-BLF Document 779 Filed 09/12/22 Page 1 of 6
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`IN RE:
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`PERSONAL WEB TECHNOLOGIES, LLC
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`ET AL., PATENT LITIGATION
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`Case No. 18-md-02834-BLF (SVK)
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`ORDER ON AMAZON'S MOTIONS TO
`COMPEL
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`Re: Dkt. Nos. 771, 773
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`The Court is in receipt of two joint discovery submissions. In the first submission (Dkt.
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`771) judgment-creditors Amazon.com, Inc. and Amazon Web Services, Inc. (“Amazon”) seek to
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`compel post-judgment document productions from third parties Brilliant Digital Entertainment,
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`Inc. (“BDE”), Claria Innovations, LCC (“Claria”), Europlay Capital Advisors, LLC (“ECA”) and
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`Monto Holdings PTY. Ltd. (“Monto”) (collectively, “Respondents”), each of which is related in
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`some fashion to judgment-debtor Personal Web Technologies, LLC (“Personal Web”). In the
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`second submission (Dkt. 773), Amazon seeks production of more than 300 documents withheld by
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`Respondents on the basis of a financial privacy privilege. See also Dkt. 773-1.
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`The Court has reviewed the joint submissions and supporting charts, post-judgment
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`discovery filings and orders, as well as the relevant statutes and case law. The Court has
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`determined that these disputes may be resolved without oral argument. Civ. L.R. 7-1(b).
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`I.
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` Motion to Compel Post-Judgment Document Productions
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`Respondents BDE, Claria and ECA previously challenged the subject subpoenas with the
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`argument that a related state court receivership action had sole jurisdiction over the assets of the
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`judgement-debtor, PersonalWeb, as well as over the judgement-debtor’s secured creditors. Dkt.
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`United States District Court
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`Case 5:18-md-02834-BLF Document 779 Filed 09/12/22 Page 2 of 6
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`733.1 The Court overruled that objection and ordered the Respondents to each “provide Amazon
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`responses to the requests for production and produce any non-privileged, nonprotected, responsive
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`documents within any of their possession, custody, or control.” Dkt. 738. Though not argued in
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`their joint submission at Dkt. 733, the Respondents submitted their formal objections to the
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`subpoenas with the joint submission. Dkts. 733-4 (BDE); 733-5 (ECA); 733-6 (Claria). Those
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`objections largely mirror the objections now at issue.
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`Amazon argues that all objections not raised in the previous joint submission (Dkt. 733)
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`have been waived or abandoned and that this Court’s previous Order (Dkt. 738) required the
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`Respondents to answer “without objection.” Dkt. 771 at 3. The Court does not find this argument
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`persuasive in light of the fact that Respondents’ formal objections were before the Court at the
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`time of its previous ruling and the language of its previous order did not expressly exclude further
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`objections. Dkt. 738 at 3. Thus, Respondents’ current objections are not per se improper.
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`The Court has reviewed the disputed discovery charts submitted as to each Respondent
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`wherein Respondents assert a variety of objections regarding breadth, vagueness and privilege.
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`Dkts. 771-6 (BDE); 771-7 (Claria); 771-8 (ECA); 771-9 (Monto). Each side has also proposed
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`compromises, and in some instances, the Parties have found common ground through their meet
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`and confer efforts. Post-judgment discovery under Federal Rule of Civil Procedure 69 is broad,
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`with a “presumption [] in favor of full discovery of any matters arguably related to [the creditor’s]
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`efforts to trace [the debtor’s] assets and otherwise to enforce its judgement.” JW Gaming Dev.,
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`LLC v. James, No. 18-2669, 2021 WL 2322265, at *4 (N.D. Cal. June 7, 2021) (quoting Credit
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`Lyonnais, S.A. v. SGC Int'l, Inc., 160 F.3d 428, 431 n.9 (8th Cir. 1998)); Ryan Inv. Corp. v.
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`Pedregal de Cabo San Lucas, No. 06-3219, 2009 WL 5114077, at *4 (N.D. Cal. Dec. 18, 2009)
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`(“As several federal courts have noted, Rule 69 discovery can indeed resemble the proverbial
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`fishing expedition, ‘but a judgment creditor is entitled to fish for assets of the judgment debtor.’”)
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`(citation omitted); see also Republic of Argentina v. NML Cap., Ltd., 573 U.S. 134, 138 (2014)
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`1 Though not a party to the previous discovery dispute (Dkt. 733), Monto agreed to be bound by
`this Court’s Order at Dkt. 738. Dkt. 771 at 4.
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`Case 5:18-md-02834-BLF Document 779 Filed 09/12/22 Page 3 of 6
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`(explaining that “[t]he rules governing discovery in postjudgment execution proceedings are quite
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`permissive.”). With this guideline in mind, the Court’s specific rulings as to each request for each
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`Respondent are set forth in Exhibits A-D hereto. Further, applicable to each and every request, the
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`Court ORDERS as follows:
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`1. Excepted as noted in Exhibits A-D, Amazon’s requests seek relevant information
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`proportional to the needs of this post-judgment action.
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`2. Objections, except as noted in Exhibits A-D, are OVERRULED and a rolling
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`production of responsive documents is to begin immediately and to be completed no
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`later than September 30, 2022.
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`3. If a Respondent has already fully complied as ordered herein such that there are no
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`additional responsive documents in its custody or control, it must so state in a
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`declaration executed under penalty of perjury by a person with personal knowledge of
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`the facts by September 30, 2022.
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`4. Subject to Ruling #5 immediately below and in accordance with the Court’s ORDER
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`on the assertion of a financial privacy privilege, also below, Respondents may withhold
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`privileged documents only on the grounds of attorney client communication or attorney
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`work product. All documents withheld on the basis of such privileges must appear on
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`a privilege log to be served on Amazon no later than October 7, 2022.
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`5. ECA represents to the Court that, “One of Europlay’s several lines of business is
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`litigation advisory services which, in addition to providing advisory services, includes
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`litigation support in return for which it receives a compensation” and that it conducts
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`this business on behalf of clients who are not “even remotely related to PersonalWeb or
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`Amazon.” Dkt. 771-8 at 2-3. In light of this representation, to the extent ECA
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`contends that this Order, notwithstanding narrowing of requests by the Court, would
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`require production or logging of attorney client communications, attorney work
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`product related to, or confidential financial information of a client that is unrelated to
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`Personal Web or to any Respondent other than ECA, ECA may so indicate on its
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`privilege log as follows:
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`Case 5:18-md-02834-BLF Document 779 Filed 09/12/22 Page 4 of 6
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`“In response to RFP No. __, ECA is withholding documents on behalf of (number)
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`clients that ECA represents are unrelated to Personal Web, BDE, Claria, Monto or
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`Amazon on the basis of (identify privilege or protection).”
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`Amazon may, following meet and confer with ECA, request further briefing on ECA’s
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`assertions of these privileges. Nothing in this paragraph supercedes or limits ECA’s
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`obligation to log documents for which it claims the attorney-client privilege or attorney
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`work product protection on behalf of any client related in any way to Personal Web,
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`BED, Claria, Monto or Amazon or to produce confidential financial information of any
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`client related in any way to Personal Web, BED, Claria, Monto or Amazon in
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`accordance with this Order.2
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`6. All Respondents are represented in this matter by the Frandzel Robins Bloom & Csato,
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`L.C. firm. In the discovery charts counsel for Respondents, frequently disavow
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`statements made in the meet and confer process upon which Amazon relies in
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`accepting a compromise position. Such disavowal is improper. Counsel has a duty of
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`candor before this tribunal, and that extends to representations to counsel made in the
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`meet and confer process.
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`7. In light of its ruling above that Respondents did not waive or abandon the subject
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`objections, Amazon’s request for sanctions is DENIED without prejudice to renewal if
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`Respondents fail to comply with this Order.
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`///
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`///
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`///
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`///
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`///
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`2 See section II, supra.
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`Case 5:18-md-02834-BLF Document 779 Filed 09/12/22 Page 5 of 6
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`II. Motion to Compel Production of Documents Withheld on the Basis of
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`Financial Privacy Privilege
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`In support of this joint submission (Dkt. 773), Respondents3 submit a lengthy privilege log,
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`asserting a “financial privacy privilege” to an estimated 325 documents. Dkt. 773-1. The
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`privilege claims arise out of Respondents’ overbreadth objections, which are addressed by the
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`Court in Exhibits A-D hereto. Dkt. 773 at 5. In some instances, the Court has narrowed the scope
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`of the disputed requests, and those rulings will reduce the number of documents at issue. Amazon
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`objects to any claim of financial privacy on various grounds. Id. at 2-4. The Court addresses
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`Amazon’s argument that this claim of privilege has been waived or abandoned above and
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`OVERRULES it here for the same reasons. The remaining issues are addressed below.
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`The Court recognizes that under certain circumstances, it may be appropriate for a third
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`party to seek to protect financially sensitive information. See Valdez v. Travelers Indem. Co. of
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`Conn., Civ. A. No. 12-cv-04307-SBA (KAW), 2013 WL 3989583, at *5 (N.D. Cal. Aug. 2, 2013)
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`(“The right of privacy in California extends to financial privacy in litigation, but is ‘subject to
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`balancing the needs of the litigation with the sensitivity of the information/records sought.’”)
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`(quoting Davis v. Leal, 43 F. Supp. 2d 1102, 1110 (E.D. Cal. 1999)). Both sides acknowledge, if
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`reluctantly, that a balancing test is appropriate here. Dkt. 773 at 2, fn.1; 773 at 5.
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`The Court again turns to the breadth and scope of post-judgment discovery which, by its
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`very nature, is directed at financial information, often in the possession of third parties with a
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`relationship to the judgement-debtor. JW Gaming Dev., 2021 WL 2322265, at *4 (denying
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`motion to quash subpoena directed to third-party bank pertaining to accounts of judgment debtor
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`and subordinate entities); Ryan Inv. Corp., 2009 WL 5114077, at *4 (“As several federal courts
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`have noted, Rule 69 discovery can indeed resemble the proverbial fishing expedition, ‘but a
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`judgment creditor is entitled to fish for assets of the judgment debtor.’”) (citation omitted); see
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`also A&F Bahamas, LLC v. World Venture Grp., Inc., No. CV 17-8523 VAP (SS), 2018 WL
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`3 In this joint submission, Respondents comprise only BDE, ECA and Monto. “There are no
`remaining privacy objections as to Claria.” Dkt. 773 at 5. Notwithstanding this slight change in
`posture among the Respondents, for the Court’s convenience, it will continue to refer to the three
`third parties subject to this motion collectively as “Respondents.”
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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 779 Filed 09/12/22 Page 6 of 6
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`5961297, at *8 (C.D. Cal. Oct. 19, 2018) (overruling privacy objections of wife of judgment
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`debtor to discovery of her personal financial documents). On the other side of the ledger from the
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`broad reach of post-judgment discovery is the recognition that financial information can be highly
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`sensitive for a variety of legitimate reasons. There is a robust Protective Order in place in this
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`case that provides a category of protection subject to “Attorneys Eyes Only,” which encompasses
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`“financial/accounting information” and “business relationships with third parties.” Dkt. 427 at 3-
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`4. This level of protection will more than adequately protect any sensitivities that Respondents
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`may have to producing this information. Although the Protective Order does not expressly cover
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`productions by third parties, there is no prohibition to extending its coverage. Accordingly, the
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`Court ORDERS as follows:
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`8. Amazon is to serve each Respondent with a copy of the Protective Order and a
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`proposed stipulation extending the protections thereof to any designated documents no
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`later than September 14, 2022. Amazon and Respondents are to meet and confer and
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`file the executed stipulation no later than September 16, 2022. If the Parties are unable
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`to agree on any provision, the Parties may submit a single Proposed Stipulation and for
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`a disputed provision, set forth each side’s language in a different color. The Court will
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`select or modify the proposed language and enter the stipulation.
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`9. EXCEPT for the narrow exception as it applies to ECA set forth in Ruling #5 in
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`Section I above, Respondents’ claim of financial privacy privilege as a bar to
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`production is OVERRULED. Responsive documents are to be produced, marked
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`“ATTORNEYS EYES ONLY” no later than September 26, 2022 regardless of whether
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`the stipulation to the Protective Order referenced above has been entered.
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`SO ORDERED.
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`Dated: September 12, 2022
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`SUSAN VAN KEULEN
`United States Magistrate Judge
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