`
`COURT ORDER RE AMAZON'S MOTION TO COMPEL AS TO EUROPLAY CAPITAL ADVISORS, LLC
`
`AMAZON’S REQUESTS
`
`CREDITORS’ RESPONSES
`
`AMAZON’S COMPROMISE
`
`No. 10: All documents relating to
`Your interests in any litigations,
`including intellectual property
`litigations, not included in the
`Collateral.
`
`No. 10: Europlay objects to this Request
`under FRCP 45(d)(1), (2)(ii) on the
`grounds that it is overly broad and vague,
`including with respect to the term "Your
`interests" and because that it is not on its
`face limited as to time and scope and
`including with respect to the term
`"relating to."
`
`Europlay further objects to this Request as
`exceedingly overbroad, burdensome and
`as calling for documents not relevant to
`PersonalWeb or Amazon's post-judgment
`collection efforts. As stated, Europlay is
`a litigation consultant, advisor and service
`firm and in the investment and fund
`management business and its personnel sit
`on numerous boards of directors, all for
`its numerous clients who have no
`relationship with PersonalWeb and
`Europlay is itself a party to a number of
`litigation cases. Many of such cases
`involve settlements or other resolutions
`that by agreement are subject to
`confidentiality clauses. Europlay further
`objects to this Request to the extent that
`production of the requested records
`violates the financial privacy rights of
`Europlay and/or its officers, directors,
`employees, and/or members. Europlay
`will not separately produce or log any
`documents relating to such matters but
`will meet and confer with Amazon to
`discuss the relevance, if any, of such
`matters.
`
`
`No. 10: Europlay should produce
`documents responsive to the full scope
`of this request as the Court ordered.
`But in the interest of compromise,
`Amazon offers to limit the request to:
`
`(i) documents created on or after
`January 1, 2010, a reasonable period
`before the founding of PersonalWeb;
`and
`
`(ii) documents to those sufficient to
`show Europlay’s interests in litigation,
`including at least (a) identifying the
`litigation, all parties to it, and any
`other interested parties; and (b)
`identifying any payment or other
`benefit Europlay received as a result of
`the litigation.
`
`Amazon would reserve the right to
`seek further production as necessary
`based on this initial production.
`Europlay has three principals, one of
`whom, Mark Dyne, is related to Kevin
`Bermeister, and another, Murray
`Markiles, is a name partner at Stubbs
`Alderton Markiles, PersonalWeb’s
`corporate and litigation counsel. How
`Mr. Markiles chose to set up
`PersonalWeb and structure ownership
`and investment by his law firm and
`others through both Europlay and
`SAM Ventures is key to establishing
`the fraudulent nature of the
`receivership and alter ego. Europlay is
`
`
`
`ORDER
`
`GRANTED as set forth in
`Amazon’s compromise as further
`MODIFIED by the Court. ECA to
`produce documents and
`communications in its custody or
`control sufficient to show from
`January 1, 2010 to present ECA’s
`interests in litigation reflected in
`any public record, including at least
`(a) identifying the litigation by
`forum and case number all parties
`to it, and any other interested
`parties; and (b) identifying any
`payment or other benefit ECA
`received as a result of the litigation.
`
`
`
`EUROPLAY'S PROPOSED
`COMPROMISE
`No. 10: Europlay incorporates its
`objections. Subject thereto and
`without waiving such objections:
`Europlay has been in business since
`2002, approximately nine years before
`PersonalWeb was formed in 2011.
`Through a subsidiary, Eurocapital
`Business Development, LLC it
`indirectly owns a 9.8% interest in
`PersonalWeb and is a secured lender to
`PersonalWeb with 5.3% of the total
`loans outstanding. Insofar as Amazon
`seeks to impose alter ego liability on
`Europlay it is a minor target and the
`scope of discovery which it should be
`subjected should be limited
`accordingly. One of Europlay’s
`several lines of business is litigation
`advisory services which, in addition to
`providing advisory services, includes
`litigation support in return for which it
`receives a compensation. Documents
`relating to such matters cannot be
`produced without violating the
`confidences of its customers and none
`of the matters even remotely relate to
`PersonalWeb or Amazon.
`Additionally, Europlay is or has been a
`party to fee collection actions and
`confidential arbitrations and none of
`the matters even remotely relate to
`PersonalWeb or Amazon. Subject to
`the foregoing, Europlay will produce
`documents sufficient to show litigation
`matters that are contained in publicly
`available data bases for recent years.
`
`
`
`
`
`
`
`
`
`Case 5:18-md-02834-BLF Document 779-3 Filed 09/12/22 Page 2 of 19
`
`AMAZON’S REQUESTS
`
`CREDITORS’ RESPONSES
`
`AMAZON’S COMPROMISE
`
`not in any sense a “minor target” it is
`once of multiple entities through which
`Stubbs Alderton attorneys had a direct
`interest in the PersonalWeb litigation
`and directed and are responsible for its
`conduct.
`
`Europlay’s objection based on its
`purported “limited interest” is baseless
`and also untimely as the Court has
`already ordered it to produce these
`materials. As for Europlay’s objection
`based on “financial privacy,” the
`documents can be given the highest
`designation under the Protective Order
`and, moreover, financial privacy is not
`a valid basis to withhold documents.
`See Bentkowsky v. Benchmark
`Recovery, Inc., Civ. A. No. 13-cv-
`01252-VC (JCS), Dkt. No. 63 (N.D.
`Cal. July 10, 2014) (slip op.) (rejecting
`a party’s claim of a financial privacy
`privilege and redaction of material, and
`ordering production subject to a
`protective order).
`
`
`
`Europlay further objects to this Request to
`the extent that it seeks production of
`documents protected by the attorney-
`client privilege and/or the attorney work
`product doctrine and the joint interest
`privilege, and documents reflecting such
`counsel's mental impressions,
`conclusions, opinions, or legal theories.
`In this regard, Europlay is in the business
`of litigation support and consultation; thus
`with the exception of its role as a secured
`creditor of PersonalWeb, the vast majority
`of its communications regarding the
`subject of this Request are in the context
`of providing such services. Europlay will
`not separately produce or log any
`documents relating to such matters but
`will meet and confer with Amazon to
`discuss the relevance, if any, of such
`matters.
`Europlay further objects to this Request as
`exceedingly overbroad, burdensome and
`as calling for documents not relevant to
`PersonalWeb or Amazon's post-judgment
`collection efforts. As stated, Europlay is
`a litigation consultant, advisor and service
`firm that has numerous clients having no
`relationship with PersonalWeb and is
`itself a party to a number of litigation
`cases. Many of such cases involve
`settlements or other resolutions that by
`agreement are subject to confidentiality
`clauses.
`
`
`ORDER
`
`EUROPLAY'S PROPOSED
`COMPROMISE
`Europlay otherwise stands on its
`Responses and, once production has
`been made of such materials it will
`meet and confer with Amazon
`regarding any purported need for
`further documents.
`
`Europlay's Response to Amazon's
`Position
`
`Amazon's Response well illustrates
`why the Court should honor
`Europlay's concerns regarding this
`Request. To appreciate Europlay’s
`issues with this Request, the term
`"Collateral" needs to be understood --
`it consists of the IP and assets the
`members of PersonalWeb contributed
`to PersonalWeb in 2011 when it was
`formed, which included the Patents In
`Suit in the Amazon case. While
`Europlay's interest in litigation
`regarding the "Collateral" may be a
`topic of legitimate interest, that is
`NOT what this Request seeks. Rather,
`it seeks Europlay's interest in litigation
`both before and after this case was
`filed in early 2018 wholly unrelated to
`the IP that was contributed to
`PersonalWeb and wholly unrelated to
`PersonalWeb itself or any of the other
`Respondents.
`
`As set forth in Europlay's Proposed
`Compromise, given the nature of one
`of its lines of business, litigation
`advice and support services, even
`disclosure of the litigation, client,
`
`2
`
`
`
`
`
`
`
`
`
`Case 5:18-md-02834-BLF Document 779-3 Filed 09/12/22 Page 3 of 19
`
`AMAZON’S REQUESTS
`
`CREDITORS’ RESPONSES
`
`AMAZON’S COMPROMISE
`
`ORDER
`
`EUROPLAY'S PROPOSED
`COMPROMISE
`parties and the like would grossly
`invade confidential and exceedingly
`sensitive information and, even on an
`"attorneys eyes only" basis, could lead
`to breakage of privileges and could
`lead to Amazon blanketing Europlay's
`customers with subpoenas -- and none
`of these activities has anything to do
`with PersonalWeb or any of the other
`Respondents.
`
`The fourth paragraph of Amazon's
`Response attempts to justify this
`invasive discovery by the fact that a
`principal of Europlay, Mark Dyne, is
`related to Kevin Bermeister, BDE's
`principal and the non-executive
`Chairman of PersonalWeb. How does
`this justify the intrusion into
`Europlay’s litigation support and
`advisory services for its clients who
`are wholly unrelated to PersonalWeb
`or the other Respondents sought by
`this Request? Amazon doesn’t say.
`Amazon does not even offer to limit the
`types of litigation it seeks such as IP
`cases the same or similar to the
`Amazon case or suits claiming
`Europlay is an alter ego of some other
`company, or any other subject matter
`even remotely akin to the issues
`involving existence of PersonalWeb
`assets or alter ego relationship with
`PersonalWeb or the other
`Respondents.
`
`Amazon next argues that Murray
`Markiles, a principal of Europlay, is a
`
`3
`
`
`
`
`
`
`
`
`
`Case 5:18-md-02834-BLF Document 779-3 Filed 09/12/22 Page 4 of 19
`
`AMAZON’S REQUESTS
`
`CREDITORS’ RESPONSES
`
`AMAZON’S COMPROMISE
`
`ORDER
`
`EUROPLAY'S PROPOSED
`COMPROMISE
`named partner in SAM, the corporate
`and litigation counsel for
`PersonalWeb. While this may well be
`a relevant fact. Amazon doesn’t state
`how intrusion into Europlay’s
`litigation support and advisory
`services for its clients who are wholly
`unrelated to PersonalWeb or the other
`Respondents is justified by same.
`Amazon then posits: "How
`Mr. Markiles chose to set up
`PersonalWeb and structure ownership
`and investment by his law firm and
`others through both Europlay and
`SAM Ventures is key to establishing
`the fraudulent nature of the
`receiverships and alter ego." While
`that may be a legitimate avenue of
`inquiry -- and Europlay has produced
`its non-privileged documents (and
`logged its privileged ones) as to this
`question showing that Europlay has an
`indirect ownership interest in
`PersonalWeb of 9.791% and SAM
`Ventures has a 1.10% interest
`therein -- Amazon nowhere pretends to
`explain why Europlay's interest in
`litigation relating to its litigation
`advice/support clients wholly
`unrelated to PersonalWeb, BDE,
`Monto or Claria has anything to do
`with the supposedly fraudulent
`receivership at issue in this matter, or
`Europlay's alleged alter ego
`relationship with PersonalWeb or its
`other owners. The whole
`"explanation" by Amazon is a non
`sequitur from start to finish. Likewise
`
`4
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`Case 5:18-md-02834-BLF Document 779-3 Filed 09/12/22 Page 5 of 19
`
`AMAZON’S REQUESTS
`
`CREDITORS’ RESPONSES
`
`AMAZON’S COMPROMISE
`
`ORDER
`
`GRANTED. To the extent ECA
`has produced all responsive
`documents, it must so state in a
`declaration in accordance with this
`Court’s Order.
`
`EUROPLAY'S PROPOSED
`COMPROMISE
`wholly unrelated to Amazon's
`supposed mission is the identity of
`litigation in which it may have sought
`to collect fees from clients wholly
`unrelated to PersonalWeb.
`
`Europlay’s authorities and argument
`regarding the financial privacy
`objection are set forth in the Joint
`Statement.
`
`Europlay's Response to Amazon's
`Position
`
`This Request is not even an issue that
`is identified Amazon's portion of the
`Joint Statement. Thus, Europlay did
`not include it in its original version of
`this chart. Europlay has produced all
`non-privileged documents responsive
`to this Request and logged all
`privileged documents, as have each of
`the other Respondents.
`
`No. 12: Amazon incorporates its
`responses to the objections and the
`statement recited in connection with
`Request No. 10.
`
`Amazon accepts Europlay’s proposed
`compromise based on the
`representations of Europlay and its
`counsel, provided that Europlay
`produces (i) documents sufficient to
`show all litigation matters from one
`year before the date of the ECA Note
`
`No. 12: Europlay incorporates its
`objections and the statement recited in
`connection with Request No. 10
`regarding the limited scope of its
`involvement in PersonalWeb. Subject
`thereto and without waiving such
`objections: Europlay has been in
`business since 2002, approximately
`nine years before PersonalWeb was
`formed in 2011. Europlay is or has
`been a party to fee collection actions
`and confidential arbitrations. Subject
`
`GRANTED as set forth in
`Amazon’s compromise and
`MODIFIED by the Court herein.
`ECA to produce for the period
`January 1, 2010 to present (i)
`documents sufficient to show all
`litigation matters reflected in any
`public record from one year before
`the date of the ECA Note (if after
`January 1, 2010) to present in
`which it was the judgment debtor
`or judgment creditor; not only
`
`5
`
`
`
`
`
`
`
`No. 11: Europlay should produce
`documents and communications
`responsive to the full scope of this
`request as the Court ordered.
`
`No. 11: All documents and
`communications relating to the
`December 31, 2019
`amendment and restatement of each
`of the Notes.
`
`No. 12: Documents relating to third-
`party complaints, claims, threatened
`or pending lawsuits, and judgments
`against You from one year before the
`date of the ECA Note to present,
`including the title, the case number,
`the nature of the claim, the amount
`of any claim or judgment owed, and
`any unsatisfied judgments in which
`You are either the judgment debtor
`or the judgment creditor.
`
`Europlay further objects to this Request to
`the extent that it seeks production of
`documents protected by the attorney-
`client privilege and/or the attorney work
`product doctrine and the joint interest
`privilege, and documents reflecting such
`counsel's mental impressions,
`conclusions, opinions, or legal theories. In
`this regard, Europlay is in the business of
`litigation support and consultation; thus
`with the exception of its role as a secured
`creditor of PersonalWeb, the vast majority
`of its communications regarding the
`subject of this Request are in the context
`of providing such services.
`No. 12: Europlay objects to this Request
`under FRCP 45(d)(1), (2)(ii) on the
`grounds that it is overly broad,
`burdensome and oppressive, and vague
`including with respect to the term
`"relating to."
`
`Europlay further objects to this Request as
`exceedingly overbroad, burdensome and
`as calling for documents not relevant to
`PersonalWeb or Amazon's post-judgment
`collection efforts. As stated, Europlay is
`
`
`
`Case 5:18-md-02834-BLF Document 779-3 Filed 09/12/22 Page 6 of 19
`
`ORDER
`
`those “contained in publicly
`available data bases for recent
`years,” and (ii) documents
`sufficient to show, for any
`threatened or asserted claims
`reflected in any public record, the
`identity of the person or entity that
`asserted or threatened the claim,
`and the nature and resolution of the
`asserted or threatened claim
`reflected in any public record.
`
`
`
`EUROPLAY'S PROPOSED
`COMPROMISE
`to the foregoing, Europlay will
`produce documents sufficient to show
`litigation matters that are contained in
`publicly available data bases for recent
`years. Europlay otherwise stands on
`its Responses and, once production has
`been made of such materials it will
`meet and confer with Amazon
`regarding any purported need for
`further documents.
`
`Europlay's Response to Amazon's
`Position
`
`See Response with respect to Request
`No. 10. Amazon nowhere purports to
`justify requiring Europlay to produce
`documents relating to litigation
`matters in which it has been sued or
`someone has “threatened” to sue
`(whatever that extends to) beyond what
`is publicly available.
`
`AMAZON’S REQUESTS
`
`CREDITORS’ RESPONSES
`
`AMAZON’S COMPROMISE
`
`to present in which it was the judgment
`debtor or judgment creditor, not only
`those “contained in publicly available
`data bases for recent years,” and (ii)
`documents sufficient to show, for any
`threatened or asserted claims, the
`identity of the person or entity that
`asserted or threatened the claim, and
`the nature and resolution of the
`asserted or threatened claim.
`
`a litigation consultant, advisor and service
`firm and in the investment and fund
`management business and its personnel sit
`on numerous boards of directors, all for
`its numerous clients who have no
`relationship with PersonalWeb and
`Europlay is itself a party to a number of
`litigation cases. Many of such cases
`involve settlements or other resolutions
`that by agreement are subject to
`confidentiality clauses. Europlay will not
`separately produce or log any documents
`relating to such matters but will meet and
`confer with Amazon to discuss the
`relevance, if any, of such matters.
`
`Europlay further objects to this Request to
`the extent that it seeks production of
`documents protected by the attorney-
`client privilege and/or the attorney work
`product doctrine and the joint interest
`privilege, and documents reflecting such
`counsel's mental impressions,
`conclusions, opinions, or legal theories.
`In this regard, Europlay is in the business
`of litigation support and consultation; thus
`with the exception of its role as a secured
`creditor of PersonalWeb, the vast majority
`of its communications regarding the
`subject of this Request are in the context
`of providing such services. Europlay will
`not separately produce or log any
`documents relating to such matters but
`will meet and confer with Amazon to
`discuss the relevance, if any, of such
`matters.
`
`
`6
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`Case 5:18-md-02834-BLF Document 779-3 Filed 09/12/22 Page 7 of 19
`
`
`
`
`
`AMAZON’S REQUESTS
`
`CREDITORS’ RESPONSES
`
`AMAZON’S COMPROMISE
`
`No. 33: All documents relating to
`payments made by You or
`PersonalWeb to lawyers,
`accountants, or other corporate
`service providers in excess of
`$100.00 since March 1, 2021.
`
`No. 33: Europlay should produce
`documents responsive to the full scope
`of this request as the Court ordered.
`But in the interest of compromise,
`Amazon offers to limit the request to
`the production of Europlay’s complete
`general ledger, provided counsel
`represents that the ledger is accurate
`and complete and reflects all
`responsive payments, clearly identifies
`the recipients of said payments, and
`subject to Amazon’s ability to seek
`further production concerning any
`payments made on behalf or for the
`benefit of PersonalWeb.
`
`No. 33: Europlay objects to this Request
`under FRCP 45(d)(1), (2)(ii) on the
`grounds that it is vague with respect to the
`term "service providers" and "relating to"
`and overly broad insofar as same may be
`construed to refer to such payments other
`than in the Action or Receivership Action.
`Europlay will not produce or separately
`log documents relating to payments other
`than in connection with the Action or the
`Receivership Action on the ground that
`any such documents would violate
`Europlay's financial privacy and would
`not be relevant to Amazon's post-
`judgment collection efforts.
`
`Europlay further objects to this Request to
`the extent that it seeks production of
`documents protected by the attorney-
`client privilege and/or the attorney work
`product doctrine and the joint interest
`privilege, and documents reflecting such
`counsel's mental impressions,
`conclusions, opinions, or legal theories.
`In this regard, Europlay is in the business
`of litigation support and consultation; thus
`with the exception of its role as a secured
`creditor of PersonalWeb, the vast majority
`of its communications regarding the
`subject of this Request are in the context
`of providing such services.
`Subject to and without waiving the
`foregoing objections, Europlay responds
`as follows: In accordance with the scope
`and limitations of the Order, after
`conducting a reasonably diligent search,
`Europlay will produce the responsive
`documents within its possession, custody,
`
`ORDER
`
`GRANTED/DENIED IN PART
`as overbroad. ECA to produce its
`general ledger redacted to clearly
`identify date, amount and payee of
`amounts paid by ECA or Personal
`Web to lawyers, accountants, or
`other corporate service providers in
`excess of $100.00 since March 1,
`2021.
`
`
`
`EUROPLAY'S PROPOSED
`COMPROMISE
`No. 33: Europlay incorporates its
`objections. Subject thereto and
`without waiving such objections: For
`the time period stated, Europlay will
`produce portions of its general ledger
`sufficient to identify date, amount and
`payee of amounts paid by Europlay to
`lawyers, accountants, consultants and
`other "service providers." Europlay
`otherwise stands on its Responses and,
`once production has been made of such
`materials it will meet and confer with
`Amazon regarding any purported need
`for further documents.
`
`Europlay's Response to Amazon's
`Position
`
`Europlay is not going to produce its
`entire general ledger because the
`Request does not call for production of
`the entirety of same beyond what
`Europlay has said it will produce --
`which relates to expenses, not income
`or other GL accounts that do not track
`expenses of the type described in the
`Request.
`
`As for counsel's "representations",
`Europlay's counsel themselves did not
`personally access its books, records
`and documents and thus cannot, and
`will not, make any "representation"
`based on personal knowledge as to this
`or any other Response. Counsel do
`represent that this Request and the
`Response were discussed with
`Europlay management and have
`
`7
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`
`
`
`Case 5:18-md-02834-BLF Document 779-3 Filed 09/12/22 Page 8 of 19
`
`AMAZON’S REQUESTS
`
`CREDITORS’ RESPONSES
`
`AMAZON’S COMPROMISE
`
`No. 34: Amazon accepts Europlay’s
`proposed compromise based on the
`representations of Europlay and its
`counsel, subject to provision of a
`redaction log and Amazon’s ability to
`challenge any improper redactions.
`
`No. 34: All documents relating to
`any retainers paid by you to lawyers,
`accountants, or other corporate
`service providers that have a
`remaining balance, surplus, or is an
`unearned retainer fee since March 1,
`2021.
`
`or control including electronic
`communications such as email, as well as
`a privilege log reflecting any documents
`or communications withheld under a
`claim of privilege or protection.
`
`
`No. 34: Europlay objects to this Request
`under FRCP 45(d)(1), (2)(ii) on the
`grounds that it is vague with respect to the
`term "service providers" and "relating to"
`and overly broad insofar as same may be
`construed to refer to such payments other
`than in the Action or Receivership Action.
`Europlay will not produce or separately
`log documents relating to payments other
`than in connection with the Action or the
`Receivership Action on the ground that
`any such documents would violate
`Europlay's financial privacy and would
`not be relevant to Amazon's post-
`judgment collection efforts.
`
`Europlay further objects to this Request to
`the extent that it seeks production of
`documents protected by the attorney-
`client privilege and/or the attorney work
`product doctrine and the joint interest
`privilege, and documents reflecting such
`counsel's mental impressions,
`conclusions, opinions, or legal theories.
`In this regard, Europlay is in the business
`of litigation support and consultation; thus
`with the exception of its role as a secured
`creditor of PersonalWeb, the vast majority
`of its communications regarding the
`subject of this Request are in the context
`of providing such services.
`
`EUROPLAY'S PROPOSED
`COMPROMISE
`produced and/or logged what
`Europlay has provided as being
`responsive to the Request.
`
`ORDER
`
`RESOLVED
`
`No. 34: Europlay incorporates its
`objections. Subject thereto and
`without waiving such objections: For
`the time period stated the only such
`retainer is with its counsel, Frandzel
`Robins Bloom & Csato (“FRBC”).
`Europlay will produce a redacted copy
`of the FRBC retainer agreement
`identifying the provisions thereof
`relating to the retainer and a printout of
`FRBC’s trust account record showing
`the current balance thereof. Europlay
`otherwise stands on its Responses and,
`once production has been made of such
`materials it will meet and confer with
`Amazon regarding any purported need
`for further documents.
`
`Europlay's Response to Amazon's
`Position
`
`This dispute appears to be resolved.
`
`As for counsel's "representations",
`Europlay's counsel themselves did not
`personally access its books, records
`and documents and thus cannot, and
`will not, make any "representation"
`based on personal knowledge as to this
`or any other Response. Counsel do
`represent that this Request and the
`
`8
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`
`
`
`
`Case 5:18-md-02834-BLF Document 779-3 Filed 09/12/22 Page 9 of 19
`
`AMAZON’S REQUESTS
`
`CREDITORS’ RESPONSES
`
`AMAZON’S COMPROMISE
`
`EUROPLAY'S PROPOSED
`COMPROMISE
`Response were discussed with
`Europlay management and have
`produced and/or logged what
`Europlay has provided as being
`responsive to the Request.
`
`ORDER
`
`
`
`
`
`No. 41: All documents relating to
`Your financial relationship with
`PersonalWeb, Brilliant Digital
`Entertainment, Inc., Claria
`Innovations, LLC, Monto Holdings
`Pty Ltd., SAM, or SAM Ventures,
`including loans, write-offs or debt
`forgiveness, advances, any sales for
`less than fair market value, or any
`payments made from December 31,
`2019 through the present.
`
`
`Subject to and without waiving the
`foregoing objections, Europlay responds
`as follows: In accordance with the scope
`and limitations of the Order, after
`conducting a reasonably diligent search,
`Europlay will produce the responsive
`documents within its possession, custody,
`or control including electronic
`communications such as email, as well as
`a privilege log reflecting any documents
`or communications withheld under a
`claim of privilege or protection.
`
`
`No. 41: Europlay objects to this Request
`under FRCP 45(d)(1), (2)(ii) on the
`grounds that, apart from the matters
`described in the "including" clause, it is
`overly broad, burdensome and oppressive,
`and vague, including with respect to the
`term "financial relationship."
`
`Europlay further objects to this Request as
`overly broad, invading Europlay's
`financial privacy and that of its members,
`and calling for materials not relevant to
`Amazon's post-judgment collection
`efforts insofar as same seek documents
`regarding Europlay's "financial
`relationship," if any, whatever that may
`mean, with any entity other than
`PersonalWeb and/or matters with regard
`to such entities other than as relate to
`PersonalWeb, the Action and/or the
`Receivership Action, including SAM,
`with which Europlay is involved in other
`legal matters. Europlay will not
`
`No. 41: Amazon offers to limit the
`time-scope of the request to documents
`created on or after January 1, 2010, a
`reasonable period before the founding
`of PersonalWeb – except for the
`portion of the request that calls for any
`payments made from December 31,
`2019 through the present, which will
`have the same starting date set forth in
`the request.
`
`Europlay should otherwise produce
`documents responsive to the full scope
`of this request as the Court ordered.
`
`Europlay’s proposal artificially
`restricts the kinds of financial
`transactions for which it is willing to
`produce documents; for example, it
`does not agree to produce documents
`relating to any payments made from
`December 31, 2019 through the
`present, as requested, or more
`
`No. 41: Europlay incorporates its
`objections. Subject thereto and
`without waiving such objections: At
`the June 17, 2022 meet and confer
`conference between Europlay’s
`counsel and Amazon’s counsel
`(relating to the Brilliant and Monto
`productions) Amazon’s counsel could
`not articulate a definition of "financial
`relationship” beyond the description
`stated in the “including” clause. For
`the stated time period, Europlay will
`produce or log all documents regarding
`PersonalWeb. Also, through
`Eurocapital Business Development
`Europlay is the manager of Claria,
`which provides 2.94% of the loan
`funding to PersonalWeb, which
`amounts are advanced by Europlay as
`manager of Claria and documents
`sufficient to show its membership
`interest and the amounts of funds
`advanced during such period will be
`
`GRANTED as set forth in
`Amazon’s compromise. ECA to
`produce all documents created on
`or after January 1, 2010 relating to
`its financial relationships with
`PersonalWeb, BDE, Claria
`Innovations, LLC, Monto Holdings
`Pty Ltd., SAM, or SAM Ventures,
`including loans, write-offs or debt
`forgiveness, advances, any sales for
`less than fair market value, or any
`payments made from December 31,
`2019 through the present.
`
`As noted in this Order, if it is
`ECA’s position that any category
`of responsive documents does not
`exist, it must so state in a
`declaration.
`
`
`
`9
`
`
`
`
`
`Case 5:18-md-02834-BLF Document 779-3 Filed 09/12/22 Page 10 of 19
`
`AMAZON’S REQUESTS
`
`CREDITORS’ RESPONSES
`
`AMAZON’S COMPROMISE
`
`generally any sales, purchases, or
`receipts among Europlay and
`PersonalWeb, Brilliant Digital
`Entertainment, Inc., Claria
`Innovations, LLC, Monto Holdings Pty
`Ltd., SAM, or SAM Ventures. The
`insiders have already produced some
`documents reflecting payments made
`directly on PersonalWeb’s behalf. The
`financial arrangements and
`transactions between and among these
`entities are necessary to establish any
`alter ego relationships and/or the
`fraudulent nature of the secured debt
`instruments by which the insiders
`secured the receivership to avoid the
`Court’s judgment.
`
`separately produce or log documents that
`may be responsive as to these other
`entities but will meet and confer with
`Amazon to discuss the relevance, if any,
`of such matters to Amazon's post-
`judgment collection efforts.
`
`Europlay further objects to this Request to
`the extent that it seeks production of
`documents protected by the attorney-
`client privilege and/or the attorney work
`product doctrine and the joint interest
`privilege, and documents reflecting such
`counsel's mental impressions,
`conclusions, opinions, or legal theories.
`In this regard, Europlay is in the business
`of litigation support and consultation; thus
`with the exception of its role as a secured
`creditor of PersonalWeb, the vast majority
`of its communications regarding the
`subject of this Request are in the context
`of providing such services.
`
`Subject to and without waiving the
`foregoing objections, Europlay responds
`as follows: In accordance with the scope
`and limitations of the Order, consistent
`with the statements in this response and
`after conducting a reasonably diligent
`search Europlay will produce the
`responsive documents within its
`possession, custody, or control including
`electronic communications such as email,
`as well as a privilege log reflecting any
`documents or communications withheld
`under a claim of privilege or protection.
`
`
`ORDER
`
`EUROPLAY'S PROPOSED
`COMPROMISE
`produced. No documents regarding
`loans, write-offs or debt forgiveness,
`advances, sales for less than fair
`market value or payments (except to
`SAM) exist. As to SAM, there exists
`an attorney-client relationship between
`that firm and Europlay. Europlay is
`producing documents sufficient to
`show payments to SAM from March 1,
`2021 to present in response to Request
`No. 33. Europlay otherwise stands on
`its Responses and, once production has
`been made of such materials it will
`meet and confer with Amazon
`regarding any purported need for
`further documents.
`
`Europlay's Response to Amazon's
`Position
`
`Amazon is misreading the time period
`stated in the Request which clearly
`limits the period in question from
`December 31, 2019 to the date of the
`Response. Amazon is also ignoring
`Europlay’s stated compromise and the
`representation as to the nonexistence
`of any "financial relationship" as to
`entities other than PersonalWeb.
`Documents relating to PersonalWeb
`have been