Case 5:18-md-02834-BLF Document 793 Filed 10/31/22 Page 1 of 7
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`IN RE PERSONALWEB
`TECHNOLOGIES, LLC ET AL. PATENT
`LITIGATION.
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`Case No. 18-md-02834-BLF (SVK)
`18-cv-0767-BLF (SVK)
`18-cv-5619-BLF (SVK)
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`ORDER ON JOINT DISCOVERY
`SUBMISSION RE WAIVER OF
`ATTORNEY-CLIENT PRIVILEGE
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`Re: Dkt. No. 790
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`I.
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`INTRODUCTION
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`Judgment creditor Amazon seeks to compel responses to interrogatories and production of
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`documents in the custody of judgment debtor PersonalWeb’s former counsel, the Stubbs Alderton
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`law firm. Dkt. 790. Amazon’s request arises out of a previous ruling by this Court ordering
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`PersonalWeb to respond to outstanding discovery requests without objection and follows nearly a
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`two year effort by PersonalWeb to avoid paying on the judgment. For the reasons set forth herein,
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`the Court GRANTS Amazon’s request.
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`II.
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`FACTUAL BACKGROUND
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`A.
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`Relevant Pleadings and Discovery
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`A brief review of discovery rulings leading up to the present motion provides context to
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`this Order.
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`Dkt.
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`Date
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`Order
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`687
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`689
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`04/19/2021 Amazon serves interrogatories and requests for
`production on PersonalWeb (“April ’21
`Discovery”)
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`05/21/2021 Amazon Motion to Compel re bank records
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`06/01/21
`Joint Discovery Statement to compel interrogatory
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`Case 5:18-md-02834-BLF Document 793 Filed 10/31/22 Page 2 of 7
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`704
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`responses and production of documents (“April
`’21 Discovery”)
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`07/21/2021 Order re Dkt. Nos. 687, 689
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`07/30/2021 PersonalWeb further responses to April ’21
`Discovery
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`B.
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` Scope of this Court’s Previous Discovery Order
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`This Court’s previous Order (Dkt. 704; “Order at Dkt. 704”) provides in relevant part:
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`Having carefully reviewed the Motion, the Letter Brief, the case file, and relevant legal
`authorities, the Court finds that PersonalWeb has waived its objections to post-judgment
`discovery served by Amazon and ORDERS that within 10 days of the date of this order,
`PersonalWeb must comply with the April 27, 2021 Order, respond fully and without
`objection [emphasis added] to Amazon’s interrogatories and requests for production, and
`produce all requested documents.
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`1.
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`Motion to compel bank records (Dkt. 687)
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`Order at Dkt. 704 addressed two pending discovery disputes, a Motion to Compel
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`(Dkt. 687) and a Joint Discovery Statement (Dkt. 689; “Joint Statement”). The Motion to Compel,
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`a dispute arising out of the production of bank records to determine if PersonalWeb was able to
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`satisfy the judgment, did not implicate either the attorney-client privilege or the attorney work-
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`production protection. Dkt. 687. It is noteworthy, however, that during the meet and confer
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`process preceding the Motion to Compel, PersonalWeb’s counsel, the Stubbs Alderton firm,
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`asserted that they did not represent PersonalWeb in the post-judgment proceedings (Dkt. 687 at 3),
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`and thus began a long and tortured path of Stubbs Alderton’s efforts to withdraw from this case
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`before substituted counsel, now Lewis Roca Rothgerber Christie LLP, was willing to appear on
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`PersonalWeb’s behalf. See Dkt. 674; Dkt. 784.
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`2.
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`Joint Discovery Statement (Dkt. 689)
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`Order at Dkt. 704 also arises out of the Joint Statement (Dkt. 689), filed on June 1, 2021.
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`The Joint Statement addresses a dispute comprising interrogatories (Dkt. 689-1) and requests for
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`Case 5:18-md-02834-BLF Document 793 Filed 10/31/22 Page 3 of 7
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`production. Dkt. 689-2;“RFPs”. In the Joint Statement, Amazon asks the Court to compel
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`PersonalWeb to respond to interrogatories and document requests served on April 19, 2021
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`(“April ’21 Discovery”). Dkt. 689 at 2. Amazon also argues that PersonalWeb waived all
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`objections by refusing to respond to the subject interrogatories and requests for production.
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`Dkt. 689 at 2, citing Richmark Corp.v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir.
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`1992). Though PersonalWeb tried to not be represented for the purposes of the Joint Statement, as
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`explained in the Order at Dkt. 704, PersonalWeb did in fact assert its position through the Stubbs
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`Alderton firm. Dkt. Nos. 689 at 6; 704 at 4, n.2. As quoted above, this Court ordered responses
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`and production, without objection.
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`For the present motion addressing whether or not PersonalWeb waived its attorney-client
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`privilege and attorney work-product protection (hereinafter collectively referred to as “privileges”)
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`pursuant to this Court’s Order at Dkt. 704, the Court reviewed the April ’21 Discovery and
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`briefing that led to the Court’s Order at Dkt. 704.
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`a.
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`Interrogatories (Dkt. 689-1)
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`In relevant part, PersonalWeb is defined to include attorneys:
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`3. “You,” “Your,” and “PersonalWeb” means PersonalWeb Technologies, LLC
`and its predecessors, parents, subsidiaries, divisions, officers, employees, agents,
`principals, beneficial owners, and attorneys, and each Person acting or purporting
`to act on its behalf or under its control.
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`Dkt. 689-1 at 3 (emphasis added).
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`Additional, Interrogatories no. 9 and no. 10 expressly address communications with
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`counsel:
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`INTERROGATORY NO. 9:
`Identify all communications of any persons, including attorneys, concerning the
`possibility or likelihood (or lack thereof) of any type of monetary award against
`PersonalWeb or its counsel (including but not limited to an award of fees,
`sanctions, or costs) in any litigation in which PersonalWeb was a plaintiff.
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`INTERROGATORY NO. 10:
`Did PersonalWeb rely upon any advice or communications of counsel in
`assessing the possibility or likelihood (or lack thereof) of an adverse monetary
`award (including but not limited to an award of fees, sanctions, or costs) in any
`matter in the consolidated multidistrict litigation captioned In re PersonalWeb
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`Case 5:18-md-02834-BLF Document 793 Filed 10/31/22 Page 4 of 7
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`Technologies, LLC, Patent Litigation, No. 5:18-md-02834-BLF (United States
`District Court, Northern District of California)?
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`Dkt. 689-1 at 7 (emphasis added).
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`b.
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`Requests for Production (Dkt. 689-2)
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`The Requests for Production are directed at a wide scope of Personal Web’s foundational
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`business documents as well as the paper trial of assets. The RFPs are unequivocal in being
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`directed at documents within the custody and control of the Stubbs Alderton firm. First, in
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`Definitions:
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`“PersonalWeb” means PersonalWeb Technologies, LLC, and its predecessors,
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`parents, subsidiaries, divisions, officers, employees, agents, principals, beneficial owners,
`and attorneys, and each Person acting or purporting to act on its behalf or under its
`control.
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`Again in Instructions:
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`1. In answering the following requests, furnish all available information including
`information in the possession, custody, or control of you or any of your attorneys,
`agents, employees, representatives, associates, investigators, affiliates, partners,
`partnerships, and persons under your control.
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`And yet again in the instruction specifically directed to a claim of privilege:
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`6. Where a claim of privilege is asserted in responding or objecting to any of these
`requests and information is not provided on the basis of such assertion . . . .
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`Dkt. 689-2 at 2, 3 (emphasis added).
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`As evidenced on the face of the foregoing documents, the Interrogatories and the RFPs
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`clearly encompass privileged information and documents and PersonalWeb ignored this discovery
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`at its peril, as reflected in Court’s language in the Order at Dkt. 704. Following the Order at Dkt.
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`704, on July 30, 2021, PersonalWeb provided some additional responses and documents but
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`continued to assert its claims of privilege. Dkt. 790 at 2, 5. Dissatisfied with PersonalWeb’s
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`current counsel’s efforts to comply with the Order at Dkt. 704, Amazon now seeks the Court’s
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`assistance.
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`Case 5:18-md-02834-BLF Document 793 Filed 10/31/22 Page 5 of 7
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`III.
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`PERSONALWEB WAIVED ITS PRIVELEGE OBJECTIONS
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`“It is well established that a failure to object to discovery requests within the time required
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`constitutes a waiver of any objection.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d
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`1468, 1473 (9th Cir. 1992). In assessing waiver, it is important that the context in waiver arises,
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`particularly wavier of privilege, be considered. Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir.
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`1981) (“In assessing the validity of a claim of privilege, however, we must consider the context in
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`which such a claim is made”). Though arising in criminal proceedings, Davis is instructive:
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`Generally, in the absence of an extension of time or good cause, the failure
`to object to interrogatories within the time fixed by Rule 33,
`FRCivP, constitutes a waiver of any objection. This is true
`even of an objection that the information sought is privileged.
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`Id. (emphasis added.)
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`Against this legal framework and the factual history laid out above, PersonalWeb argues
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`that privilege not waived as a result of its failure to respond to discovery. Dkt. 790 at 4-5. First,
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`PersonalWeb suggests that this Court’s Order at Dkt. 704 for PersonalWeb to respond to the
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`discovery “without objection” is either a sua sponte ruling that privilege had been waived or is too
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`ambiguous to find waiver now. Id. Neither argument stands in face of the context in which this
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`Court issued its Order at Dkt. 704. First, the discovery which gave rise to the Joint Statement
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`unambiguously sought information and documents in the custody and control of PersonalWeb’s
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`counsel at the Stubbs Alderton firm. Second, in the Joint Statement (Dkt. 689), Amazon clearly
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`argued that PersonalWeb had waived “all its objections,” and cites Richmark in support. Id. at 2,
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`3. PersonalWeb’s failure respond to discovery directed to its counsel, followed by its failure to
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`argue in the Joint Statement that it had not waived objections, cannot now save its privilege
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`claims. Richmark; Davis. This context, taken together with Order at Dkt. 704 that PersonalWeb
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`was to respond “without objection,” makes it abundantly clear that PersonalWeb waived its
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`privilege objections in failing to timely respond to the subject discovery requests.
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`Case 5:18-md-02834-BLF Document 793 Filed 10/31/22 Page 6 of 7
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`IV. AMAZON’S MOTION IS TIMELY
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`PersonalWeb argues that the present motion, to compel full and complete responses and a
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`document production without regard for privilege based upon PersonalWeb’s responses served in
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`July 2021, is untimely. While under ordinary circumstances filing a motion to compel more than
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`year after discovery responses could be problematic, since judgment was entered in this case
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`PersonalWeb has engaged in extraordinary efforts to avoid enforcement.
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`A detailed chronology of PersonalWeb’s efforts in this regard would require more judicial
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`resources than this argument merits, though it can be gleaned from the docket. It suffices to note
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`that the Joint Statement (Dkt. 689) was filed to compel responses to post-judgment discovery to
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`which PersonalWeb simply chose not to respond. Following the Order at Dkt. 704,
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`PersonalWeb’s further responses in July 2021, by PersonalWeb’s own admission, defied the Order
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`Dkt. 704 by continuing to assert privilege. Dkt. 790 at 5. The Court takes Amazon at its word
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`that it met and conferred with PersonalWeb in the ensuing weeks to resolve the outstanding issues.
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`Dkt. 790 at 3. However, as PersonalWeb acknowledges in this motion, in September 2021,
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`PersonalWeb investors had instituted a receivership action in state court, taking the position that
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`Amazon’s discovery efforts were enjoined by that proceeding. See Dkt. 790 at 5. PersonalWeb’s
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`position was unfounded (Dkt. 738), and in April 2022 proceedings resumed in this Court, along
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`with Stubbs Alderton’s efforts to withdraw and PersonalWeb’s continued efforts to avoid an
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`appearance of counsel. Dkt. 728; 760; 769. Finally, on September 15, 2022, new counsel
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`appeared on PersonalWeb’s behalf (Dkt. 784), and, as evidenced by the representation that further,
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`non-privileged documents are forthcoming, meet and confer efforts have continued in recent
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`weeks. Dkt. 790 at 4. However, Amazon cannot wait forever. The next logical step was this
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`motion to compel, which the Court GRANTS for the reasons set forth herein.1
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`1 Amazon also posited an argument that previous counsel for PersonalWeb conceded that privilege
`had been waived. PersonalWeb opposes. Dkt. 790. Because it finds waiver for the reasons stated
`herein, the Court does not reach this argument.
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`Case 5:18-md-02834-BLF Document 793 Filed 10/31/22 Page 7 of 7
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`V.
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`CONCLUSION
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`PersonalWeb has waived its attorney-client privilege and attorney work product protection
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`regarding the subject discovery and is to provide complete responses and a complete document
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`production. Just prior to issuing this Order, the Parties filed a stipulation reflecting the fruit of
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`their meet and confer efforts as to the process and timing of document productions of non-
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`privileged materials. The Court expects the Parties will be able to incorporate this Order and
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`proceed with production of all responsive materials in a timely manner. If not, Amazon may
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`submit a proposed order to the Court with a deadline for completion of production as ordered
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`herein.
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`SO ORDERED.
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`Dated: October 31, 2022
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`SUSAN VAN KEULEN
`United States Magistrate Judge
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