Case 5:18-md-02834-BLF Document 790 Filed 10/06/22 Page 1 of 7
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`ROBERT M. CHARLES, JR.
`(adm. pro hac vice)
`RCharles@lewisroca.com
`PATRICK EMERSON MCCORMICK
`(SBN 307298)
`PMcCormick@lewisroca.com
`LEWIS ROCA ROTHGERBER
` CHRISTIE LLP
`One South Church Ave., Ste. 2000
`Tucson, AZ 85701-1611
`Telephone:
`(520) 622-2090
`Facsimile:
`(520) 622-3088
`
`Attorneys for PERSONALWEB
`TECHNOLOGIES, LLC
`
`
`
`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
`
`Case No.: 5:18-md-02834-BLF
`Case No.: 5:18-cv-00767-BLF
`Case No.: 5:18-cv-05619-BLF
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`CORRECTED JOINT STATEMENT RE
`AMAZON’S MOTION TO COMPEL
`COMPLIANCE WITH COURT ORDER
`BY PERSONALWEB TECHNOLOGIES,
`LLC; REQUEST FOR SANCTIONS
`
`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.
`
`JT. STATMENT RE AMZ’S MTC PW
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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 790 Filed 10/06/22 Page 2 of 7
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`I.
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`AMAZON’S STATEMENT
`The Court twice ordered PersonalWeb to comply with Amazon’s post-judgment discovery
`requests, including to “respond without objection to the interrogatories and requests for production”
`and “produce all documents requested in the requests for production.” (Dkt. 704; see also Dkt.
`664.)1 After allowing its President Michael Weiss to cherry-pick a small set of documents for
`production in August 2021, PersonalWeb refused further requests to comply and thumbed its nose
`at the Court’s orders for over a year. (See, e.g., Dkt. 728.) Over six weeks ago, in mid-August,
`PersonalWeb’s new attorneys announced that they planned to hire a “data forensic specialist” to
`ensure PersonalWeb’s compliance. PersonalWeb has produced exactly zero additional documents
`since then and supplemented no interrogatory responses. Amazon seeks the Court’s assistance to
`obtain PersonalWeb’s compliance and resolve two issues concerning the scope of production.
`PersonalWeb Must Produce Documents in the Possession of Stubbs Alderton. First,
`PersonalWeb refuses to search documents in the possession of the Stubbs Alderton law firm. Stubbs
`Alderton is PersonalWeb’s agent, primary corporate counsel, and its litigation counsel for at least
`the past four years and was involved in PersonalWeb’s efforts to evade the judgment. Such
`documents are therefore within the scope of discovery. See FDIC v. BayONE Real Est. Inv. Corp.,
`No. 15-cv-02248-BLF (SVK), Dkt. 69 at 5 (N.D. Cal. Mar. 27, 2017) (van Keulen, M.J.) (slip op.)
`(ordering defendant to conduct a diligent search of documents within the possession of its former
`litigation counsel and to produce any documents responsive to requests for production). There is
`no reasonable dispute that Amazon’s post-judgment discovery sought information within
`PersonalWeb’s possession, custody, or control, including documents possessed by PersonalWeb’s
`agent and attorney Stubbs Alderton. (See Dkt. 689-2 at 2 (“‘PersonalWeb’ means PersonalWeb
`Technologies, LLC, and its…agents…and attorneys….”).) The Court ruled that PersonalWeb
`waived its objections to these requests by failing to respond to them and must therefore produce all
`responsive documents. (Dkt. 704 at 7.) A reasonable search must include a search of documents
`in the possession of PersonalWeb’s counsel Stubbs Alderton.
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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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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`1 All quotation emphases are added unless otherwise noted.
`1
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`JT. STATMENT RE AMZ’S MTC PW
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`The Court Already Ruled That PersonalWeb Waived All Objections Including Privilege.
`Second, PersonalWeb has indicated that it intends to again assert privilege objections that the Court
`long ago ruled waived when PersonalWeb failed to respond to the discovery requests at issue.
`(Compare Dkt. 704 (ordering that PersonalWeb must “respond without objection to the
`interrogatories and requests for production”) to Dkt. 738 (because the PersonalWeb investors had
`responded to the discovery, they were to “produce any non-privileged, nonprotected, responsive
`documents”)). The Court’s order was correct: it is indisputable that PersonalWeb did not timely
`respond to the post-judgment discovery. (Dkt. 704 at 7.) And failing to respond to a discovery
`request waives all objections thereto, including any claims of privilege. See Fed. R. Civ. Proc.
`33(b)(4); Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992);
`Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981). Moreover, PersonalWeb’s counsel
`previously admitted that the Court already found waived any privilege objections. (See Dkt. 747-
`15 at 2 (Michael Sherman email discussing compliance with “the District Court orders without the
`assertion of any privilege claims that had been ordered waived”).)
`PersonalWeb’s Counter-Arguments Are Not Well-Taken. PersonalWeb’s primary
`response to this motion to compel compliance is to argue that it is instead a disguised and belated
`“motion to strike” the privilege objections that it asserted only after the Court had already found all
`objections waived. In particular, PersonalWeb argues that Amazon should have filed the motion in
`the six weeks after PersonalWeb served its responses and before PersonalWeb and its investors
`began threatening Amazon with contempt sanctions in the state court action if Amazon continued
`to pursue discovery.2 That argument is as cynical as it is unserious—the Court should reject it.
`During that time, Amazon was engaged in meet and confer efforts attempting to obtain
`PersonalWeb’s compliance informally. Moreover, after the contempt threat, Amazon spent months
`trying to intervene in the California Superior Court action to resolve that issue among others, and
`while that effort was ongoing, PersonalWeb’s counsel Stubbs Alderton reported that PersonalWeb
`had refused to allow it to take any further steps to comply with the Court’s order. The parties fought
`
`2 Moreover, PersonalWeb asserted that the state court injunction barred this Court’s pre-existing
`document discovery order and that Amazon had violated that injunction simply by asking
`PersonalWeb to produce documents (see Dkt. 747-6), a position the Court rejected.
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`JT. STATMENT RE AMZ’S MTC PW
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`2
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`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and 5:18-cv-05619-BLF
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`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 790 Filed 10/06/22 Page 4 of 7
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`over the withdrawal for additional months. The District Judge has never suggested that a motion
`to compel compliance would be untimely, in fact everything it has done—including ordering a
`temporary stay requiring that Amazon not file such a motion until the Court’s latest order on
`withdrawal had been addressed—suggests exactly the opposite. (See Dkt. 725 at 10 (“Mr.
`Gregorian needs to seek a -- either a motion to compel or a motion for contempt, from the magistrate
`judge.”); Dkt. 762 at 35.)
`Given the lengths that PersonalWeb has forced Amazon to go through to obtain compliance,
`including manufacturing the fake “conflict” with its former counsel of record, the Court should also
`direct PersonalWeb 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 PERSONALWEB
`II.
`Amazon asserts that the Court, sua sponte and ambiguously, held that PersonalWeb has
`waived attorney-client privilege as to 43 RFPs and ten special interrogatories (including two
`interrogatories
`that specifically sought privileged
`information). Moreover, PersonalWeb
`specifically objected on attorney-client privilege grounds to the two interrogatories in question over
`a year ago, and any attempt by Amazon to compel responses without those objections is untimely.
`PersonalWeb is in the process of collecting, via a data forensic specialist, PersonalWeb’s
`ESI. PersonalWeb has or will produce all responsive, non-privileged documents to comply with the
`Court’s Order and provide responses and productions to Amazon. Amazon seems to suggest, on the
`one hand, that this production must happen immediately, and on the other hand, it must happen
`fully. All interested parties understand that this is not possible, and PersonalWeb, through its newly-
`retained counsel, has been in regular contact with Amazon during this process.
`
`A.
`
`PersonalWeb Has Not Waived Its Attorney-Client Privilege
`1.
`The Parties’ Briefs and the Court Order were Silent on Privilege
`The sole ground upon which Amazon bases its argument that PersonalWeb has waived its
`privilege, the Court Order (Dkt. 704), was silent on privilege. Moreover, that Order was in response
`to a Motion to Compel (Dkt. 687) and Joint Statement (Dkt. 689), neither of which made any
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`JT. STATMENT RE AMZ’S MTC PW
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`3
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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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`

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`mention of waiver of privilege or request that the Court order that PersonalWeb waived privilege.
`The briefs and the Order were all silent on privilege and any possible waiver. Given the sanctity of
`the attorney-client privilege, it seems unlikely that the Court held, sua sponte and ambiguously as
`to privilege, that PersonalWeb waived its attorney-client privilege. This is the opposite of the
`situation in FDIC, No. 15-cv-02248, Dkt. 69, in which the requesting party specifically sought an
`order compelling a search and production of the responding party’s attorney’s documents (id. at
`4:3-6), and the Court unambiguously compelled the same (id. at 5:5-10).
`Furthermore, PersonalWeb’s counsel did not concede that privilege had been waived in the
`meet and confer process. It is plain from reading Dkt. 747-15 at 3 that Mr. Sherman is not conceding
`that privilege has been waived, but rather requesting PersonalWeb’s Receiver to confirm its position
`on the matter and to instruct PersonalWeb’s counsel how to proceed.
`
`2.
`Amazon’s Request to Strike PersonalWeb’s Objections is Untimely
`Amazon’s request to strike PersonalWeb’s attorney-client privilege objections is untimely
`as these objections were made over a year ago, and Amazon’s delay is not justified.
`Within ten days of the Order, on July 30, 2021, PersonalWeb served its responses to
`Amazon’s RFPs and Interrogatories. PersonalWeb objected to Interrogatories 9 and 10 (the
`“Interrogatory Responses”) on the ground of attorney-client privilege, as they clearly sought
`privileged information.3 Any motion to now challenge these objections as to these two
`Interrogatories would be untimely. See Unilin Beheer B.V. v. NSL Trading Corp., 2015 WL
`12698283, at *3 (C.D. Cal.) (holding that a motion to compel six months after first set of
`interrogatory responses and three months after additional responses were due was untimely).
`Amazon’s purported justification for its delay in bringing this request to have those objections
`stricken is disingenuous. The Interrogatory Responses were served on July 30, 2021, and
`PersonalWeb did not raise the issue of the receivership injunction until September 14, 2021, six
`weeks later. (Dkt. 747-6 at 2.) Amazon was apparently not too concerned about contempt sanctions,
`as it then challenged that very receivership stay, but only after waiting six more months. (See Dkt.
`
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`3 PersonalWeb has already agreed to supplement its Responses to Interrogatories 9 and 10 to
`include all non-privileged information, if any.
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`JT. STATMENT RE AMZ’S MTC PW
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`4
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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 790 Filed 10/06/22 Page 6 of 7
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`733.) The Court agreed with Amazon’s challenge on April 12, 2022 (Dkt. 738), almost five months
`ago. Amazon did not move to compel further responses within the six weeks before PersonalWeb
`raised the receivership injunction, nor did it challenge the injunction for six additional months, and
`it has now waited five more months after the injunction argument was dismissed. Every step of
`Amazon’s delay has been unreasonable and untimely.
`Moreover, the Court-ordered stay in Dkt. 762 at 35 expired on July 25, 2022. On the one
`hand, Amazon argues that PersonalWeb’s assertion of attorney-client privilege was untimely and
`thus automatically waived; on the other hand, Amazon asserts that its present attempt to strike those
`objections is not untimely despite a deadline that ran two months ago.
`
`3.
`Amazon’s Other Requests did not Necessitate an Assertion of Privilege
`As to the RFPs and Interrogatories, an inquiry into general documents or information not
`protected by the privilege, such as the general nature of legal services provided, “does not
`necessitate an assertion of the privilege because the general nature [of information sought] is not
`protected by the privilege.” Nguyen v. Excel Corp., 197 F.3d 200, 207 (5th Cir. 1999). It is only
`when the inquiries seek “the substance of the client’s and attorney’s discussions [is] an assertion
`required to preserve the privilege.” Id. PersonalWeb did not raise privilege objections to Amazon’s
`requests regarding its assets and financials, as those are subjects consisting largely of documents
`and information not subject to attorney-client privilege. All responsive documents and information
`that would provide Amazon with the information sought in the RFPs and Interrogatories 1-8 can be
`produced without implicating attorney-client communications or attorney work product.
`
`Conclusion
`B.
`Amazon’s attempt to find waiver of attorney-client privilege in the Court’s Order when there
`was none and its attempt to strike objections asserted over a year ago are of no avail. PersonalWeb
`is complying with the Court’s Order and remains in discussions with Amazon in its review and
`production of non-privileged, responsive documents, but Amazon cannot, and should not, have
`access to PersonalWeb’s attorneys’ files.
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`JT. STATMENT RE AMZ’S MTC PW
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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 790 Filed 10/06/22 Page 7 of 7
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`Dated: October 6, 2022
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`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.
`
`
`
`LEWIS ROCA ROTHGERBER CHRISTIE LLP
`
`By: /s/ Patrick Emerson McCormick
` PATRICK EMERSON MCCORMICK
`Attorney for PERSONALWEB
`TECHNOLOGIES, LLC
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`Dated: October 6, 2022
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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 Corrected Joint Statement. In compliance with N.D. Cal. Civil L.R. 5-1(h)(3), I hereby
`attest that Patrick Emerson McCormick has concurred in this filing.
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`Dated: October 6, 2022
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`/s/ Todd R. Gregorian
`TODD R. GREGORIAN
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`JT. STATMENT RE AMZ’S MTC PW
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