Case 5:18-md-02834-BLF Document 795 Filed 11/04/22 Page 1 of 6
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`Robert M. Charles, Jr. (admitted pro hac vice)
`RCharles@lewisroca.com
`Patrick Emerson McCormick (CA Bar #307298)
`PMcCormick@lewisroca.com
`LEWIS ROCA ROTHGERBER CHRISTIE LLP
`One South Church Avenue, Suite 2000
`Tucson, AZ 85701-1611
`Tel:
`520.622.2090
`Fax: 520.622.3088
`Attorneys for PersonalWeb Technologies, LLC
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`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`CASE NO. 5:18-md-02834-BLF
`Case No. 5:18-cv-0767-BLF
`Case No. 5:18-cv-05619-BLF
`PERSONALWEB TECHNOLOGIES,
`LLC’S OBJECTION TO
`AMAZON.COM INC.’S PROPOSED
`ORDER
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`IN RE PERSONALWEB TECHNOLOGIES,
`LLC, ET., AL., PATENT LITIGATION,
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`Plaintiffs,
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`AMAZON.COM, INC. and AMAZON WEB
`SERVICE, INC.,
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`v.
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`PERSONALWEB TECHNOLOGIES, LLC, et
`al.,
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`PERSONAL WEB TECHNOLOGIES, LLC, et
`al.,
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`v.
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`TWITCH INTERACTIVE, INC.,
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`Defendant.
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`Defendants.
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`Plaintiffs
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`Tucson, AZ 85701-1611
`One South Church Avenue, Suite 2000
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`119335953.1
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` 5:18-MD-02834-BLF
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`Case 5:18-md-02834-BLF Document 795 Filed 11/04/22 Page 2 of 6
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`I.
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`INTRODUCTION
`Amazon.com, Inc.’s (“Amazon”) Proposed Order (Dkt. 794 in 5:18-md-02834; Dkt. 338
`in 5:18-cv-00767; and Dkt. 243 in 5:18-cv-05619) (the “Proposed Order”) misrepresents the
`Parties’ agreements and terms of a bulk production; seeks production of privileged, non-
`responsive documents; misstates and omits material meet and confer statements by PersonalWeb;
`and omits Amazon’s own refusal to meet and confer regarding production deadlines as ordered by
`the Court. Specifically, Amazon knowingly petitions the Court for an order that would require
`PersonalWeb to produce documents that remain protected by privilege.
`For these and the reasons discussed below, PersonalWeb Technologies, LLC
`(“PersonalWeb”) requests that the Court reject Amazon’s Proposed Order and schedule a
`discovery conference with the Parties.
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`II.
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`DISCUSSION
`PersonalWeb produced over 120,000 documents, comprising over 600,000 pages, earlier
`this week in advance of its deadline to produce the bulk production to which the Parties
`stipulated.
`PersonalWeb, through its current counsel of record, repeatedly informed Amazon that it
`would review and produce any and all responsive documents, regardless of privilege, from the
`remaining 57,000 documents previously withheld for review as “potentially privileged” in a
`timely manner, per the Court’s Order (Dkt. 793 at 7:7), and amend its responses to Amazon’s
`Interrogatories once reviewed. This is, as the Court and all Parties are aware, the standard method
`of discovery review and production. This is not, as Amazon attempts to characterize it, a
`withholding or delay, as PersonalWeb is reviewing these documents and will produce them in a
`timely manner.
`Rather than meet and confer with PersonalWeb as to a reasonable timeline for said review
`and production, Amazon has taken an unreasonable stance that it is entitled to a bulk production
`of PersonalWeb’s remaining documents. To be clear, these documents withheld are the result of
`broad keyword searches designed to narrow the population of documents for review to those
`potentially responsive, at which point they were to be reviewed by PersonalWeb. In other words,
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`Case 5:18-md-02834-BLF Document 795 Filed 11/04/22 Page 3 of 6
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`this is not a search that was designed to capture what was likely responsive, as that would be a
`much narrower search and return a significantly smaller collection of documents.
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`A.
`Amazon’s Proposed Order Misrepresents the Parties’ Agreements
`Amazon is in no way entitled to a bulk production. PersonalWeb was trying to find a
`compromise for the benefit of all Parties. Since the Parties were not able to reach a common
`understanding, PersonalWeb plans to fulfill its obligations under the Court’s Order per the
`standard course, while Amazon would rather ask the Court to force this bulk production above
`and beyond that to which Amazon is entitled.
`PersonalWeb’s offer to Amazon, as an alternative to PersonalWeb’s direct review and
`production of the remaining documents, to bulk produce these documents was made on two
`conditions.
`First, PersonalWeb required a claw back provision for any documents produced that were
`non-responsive and privileged, as the only privilege that the Court held PersonalWeb waived is to
`those documents and communications responsive to Amazon’s outstanding discovery. (See Dkt.
`793 at 7:2-3 [“PersonalWeb has waived its attorney-client privilege and attorney work product
`protection regarding the subject discovery”] [emphasis added].) Privileged documents that are
`unresponsive to these requests remain privileged. Amazon conceded that these documents would
`be privileged, yet has completely omitted any concern for these privileged documents in its
`Proposed Order. Amazon is on notice, and acknowledged awareness to PersonalWeb’s counsel,
`that this bulk production is likely to produce privileged documents, and now seeks an order from
`the Court compelling the production of these privileged documents.
`Second, PersonalWeb conditioned this second bulk production on Amazon waiving its
`objection regarding “reasonable inquiry” per FRCP 26(g)(1), as any such bulk production would
`give Amazon the exact same access and burden in finding documents responsive to its
`Interrogatories as PersonalWeb would have. This is not an issue of PersonalWeb refusing to
`conduct such a reasonable inquiry, as it has repeatedly told Amazon that it will perform such an
`inquiry and produce and identify those documents as warranted, but without a bulk production.
`Rather, this is Amazon attempting to have its cake (all PersonalWeb’s files now, regardless of
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`Case 5:18-md-02834-BLF Document 795 Filed 11/04/22 Page 4 of 6
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`responsiveness or privilege) and eat it too (reject the substantially same burden to review and find
`responsive documents per FRCP33(d)1). As conceded in Amazon’s Proposed Order,
`PersonalWeb would still inquire as to its agents for responsive information that they might recall
`or that might narrow the scope of a search for Amazon.
`Moreover, Amazon misstates the plain language of the Parties’ Joint Stipulation (Dkt.
`791) regarding bulk production. Per the Joint Stipulation, Amazon agreed that “PersonalWeb will
`review the withheld documents through its outside counsel Lewis Roca and produce non-
`privileged documents and privilege logs on a rolling basis, every two weeks.” (Dkt. 791 at 3:15-
`17.) No part of PersonalWeb’s review of its potentially-privileged documents is conditioned on
`the Court’s Order holding that PersonalWeb waived privilege. Rather, the only condition of the
`Joint Stipulation with regard to the Court’s Order is whether responsive, privileged documents
`will be produced or logged. Per the Court’s Order, PersonalWeb will produce its responsive
`documents regardless of privilege.
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`B.
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`Amazon Knowingly Seeks a Court Order Demanding Production of
`Privileged, Unresponsive Documents
`Amazon conceded in the Parties meet and confer efforts that such a bulk production is
`likely to result in the production of unresponsive documents and that any privileged unresponsive
`documents would retain their privilege. Amazon omits any method to accommodate such
`productions. Rather, it is knowingly asking the Court—without disclosing to the Court—for an
`order that PersonalWeb to produce privileged documents.
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`C.
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`Amazon Violated the Court’s Order in Refusing to Meet and Confer as to “a
`Timely Manner
`PersonalWeb repeatedly told Amazon that it would review and produce the remaining
`responsive documents in a timely manner, staffing a team of associates for the review and
`producing documents on a rolling production. Amazon refused to consider this course of action,
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`1 “If the answer to an interrogatory may be determined by examining … a party's business records
`(including electronically stored information), and if the burden of deriving or ascertaining the
`answer will be substantially the same for either party, the responding party may answer by:
`(1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating
`party to locate and identify them as readily as the responding party could; and
`(2) giving the interrogating party a reasonable opportunity to examine and audit the records and to
`make copies, compilations, abstracts, or summaries.” (emphasis added).
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`Case 5:18-md-02834-BLF Document 795 Filed 11/04/22 Page 5 of 6
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`instead taking the immovable, entitled position of bulk production or Court intervention.
`PersonalWeb’s counsel, Lewis Roca, has a team of three associates staffed and committed
`to a minimum of 50 hours/week in reviewing these remaining documents and producing
`responsive documents every two weeks. It is unclear if Amazon would be willing to accept this
`proposal, as it refused to discuss any approach other than bulk production.
`As to PersonalWeb’s prior review pace, Amazon knowingly misrepresents those numbers.
`Amazon is specifically aware that the first 200 documents reviewed were at the outset after
`significant collection and processing efforts to ensure a complete collection of PersonalWeb’s
`ESI. Furthermore, PersonalWeb never got up to full speed in its review process because during
`that entire time, the Parties were engaged in discussions regarding the initial bulk production of
`over 120,000 documents comprising over 600,000 pages (which PersonalWeb produced ahead of
`schedule).
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`III. CONCLUSION
`Amazon’s Proposed Order must be rejected for its misrepresentations, lack of candor, and
`attempt to obtain PersonalWeb’s non-responsive, privileged documents.
`PersonalWeb requests a discovery conference with the Court, as Amazon refuses to meet
`and confer in good faith on what constitutes a “a timely manner” of PersonalWeb’s production.
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`LEWIS ROCA ROTHGERBER CHRISTIE LLP
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`By: /s/ Patrick Emerson McCormick
`Robert M. Charles, Jr.
`Patrick Emerson McCormick
`Attorneys for PersonalWeb Technologies, Inc.
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`Dated this 4th day of November, 2022.
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`Case 5:18-md-02834-BLF Document 795 Filed 11/04/22 Page 6 of 6
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`PROOF OF SERVICE
`I, Daniela Rodriguez, declare:
`I am a citizen of the United States and employed in Pima County, Arizona. I am over the
`age of eighteen years and not a party to the within-entitled action. My business address is One
`South Church Avenue, Suite 2000, Tucson, Arizona 85701-1611.
`On November 4, 2022, I electronically filed the attached document:
`PERSONALWEB TECHNOLOGIES, LLC’S OBJECTION TO
`AMAZON.COM INC.’S PROPOSED ORDER
`with the Clerk of the court using the CM/ECF system which will then send a notification of such
`filing to the following:
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`Todd R. Gregorian (CSB) No. 236096
`Fenwick &West LLP
`Silicon Valley Center
`801 California Street
`Mountain View, CA 94041
`Tgregorian@fenwick.com
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`I declare under penalty of perjury under the laws of the State of Arizona that the above is
`true and correct.
`Executed on November 4, 2022, at Tucson, Arizona.
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`/s/ Daniela Rodriguez
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`Daniela Rodriguez
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