Case 5:18-md-02834-BLF Document 801 Filed 11/11/22 Page 1 of 8
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`[counsel listed in signature block]
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
`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.
`
`Case No.: 5:18-md-02834-BLF
`Case No.: 5:18-cv-00767-BLF
`Case No.: 5:18-cv-05619-BLF
`
`JOINT STATEMENT RE (1)
`AMAZON’S SECOND MOTION TO
`COMPEL COMPLIANCE WITH
`COURT ORDER BY BRILLIANT
`DIGITAL ENTERTAINMENT, INC.,
`CLARIA INNOVATIONS, LLC,
`EUROPLAY CAPITAL ADVISORS,
`LLC, AND MONTO HOLDINGS PTY.
`LTD.; REQUEST FOR SANCTIONS
`(2) REQUEST FOR BRIEFING
`SCHEDULE ON COURTS SUBJECT
`MATTER JURISDICTION
`
`JOINT STATEMENT RE
`AMAZON’S MTC #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 801 Filed 11/11/22 Page 2 of 8
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`AMAZON’S STATEMENT
`The Court ordered Brilliant Digital Entertainment, Inc. (“BDE”), Claria Innovations, LLC
`(“Claria”), Europlay Capital Advisors, LLC (“Europlay”), and Monto Holdings Pty Ltd.’s
`(“Monto”) (collectively, “Investors”) to produce by June 27, 2022 “all other responsive documents
`within any of their possession, custody, or control including electronic communications such as
`email.” (Dkt. 750.) But the Investors conducted an insufficient search, allowing Mr. Bermeister,
`managing agent for BDE and Non-Executive Chairman of PersonalWeb, and Mr. Markiles,
`managing agent for Claria and Europlay and a founder of PersonalWeb, free rein to decide what
`documents to collect and produce. It is generally inappropriate to have clients collect documents
`in this manner. See, e.g., Fed. R. Civ. P. 26(g) (counsel must attest that discovery response complies
`with federal rules “to the best of [counsel’s] knowledge, information, and belief formed after a
`reasonable inquiry”); Rodman v. Safeway, Inc., 2016 WL 5791210, at *2-4 (N.D. Cal. Oct. 6,
`2016) (finding that counsel had relied unreasonably on search of ESI performed by the client). But
`it is particularly troubling here where the Court already found that Mr. Bermeister submitted a false
`declaration to the Court. (See Dkts. 394 & 636.) Messrs. Bermeister and Markiles are also behind
`PersonalWeb’s attempt to evade the judgment, including refusing post-judgment discovery, firing
`Mr. Markiles’ firm to avoid complying, and securing a state court receivership to prevent
`enforcement. Allowing those responsible for this misconduct to decide which documents to turn
`over and which to conceal (including from their own counsel, who have an obligation to disclose
`what has been withheld) is insufficient. The results of this process are what one would expect:
`Messrs. Bermeister and Markiles omitted email accounts that they used to conduct the business of
`Investors and PersonalWeb. The Court should order Investors to search those accounts, supervised
`such that counsel can represent that Investors have complied with the order to provide all responsive
`documents. Investors’ argument that this discovery exceeds the “permissible scope” of Rule 69
`ignores both that the Court already ordered this discovery, (Dkts. 750 & 779), and that the order
`was correct: there is a “presumption [] in favor of full discovery of any matters arguably related to
`[the creditor’s] efforts to trace [the debtor’s] assets and otherwise to enforce its judgement.”1
`
`1 Investors concede that the Court had jurisdiction to order discovery in aid of enforcement.
`4762886V2 | 101334-0002 JOINT STATEMENT
`CASE NOS. 5:18-md-02834-BLF,
`RE
`5:18-cv-00767-BLF, and
`AMAZON’S MTC #2
`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 801 Filed 11/11/22 Page 3 of 8
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`Deficient Collection Process. Amazon has thus far identified the relevant email accounts:
`Mr. Bermeister’s Email Accounts
`Mr. Markiles’ Email Accounts
`kbermeister@brilliantdigital.com
`mmarkiles@gmail.com
`kbermeister@bde.local
`mmarkiles@eca.local
`kevberm@gmail.com
`mmarkiles@ecamail.com
`kevin.bermeister@adfreeway.com
`mmarkiles@europlaycapitaladvisors.com
`kevin@thejdfund.com
`mmarkiles@stubbsalderton.com
`kb@pweb.com
`mmarkiles@biztechlaw.com
`There are two issues with Investors’ email collection.2 First, the collection from all
`accounts is deficient because Messrs. Bermeister and Markiles decided what documents to collect
`and produce, such that counsel is unable to attest that their clients have complied with the order.
`Second, Europlay refused to search for documents from Mr. Markiles’ Stubbs Alderton &
`Markiles LLP (“Stubbs”) “mmarkiles@stubbsalderton.com” or “mmarkiles@biztechlaw.com”
`email accounts because it purportedly “does not have possession, custody, or control of emails on
`Stubbs Alderton’s servers.” But the documents produced to date show that Mr. Markiles used his
`Stubbs email accounts to conduct the business of Europlay and Claria, as the managing agent for
`both entities. See Ashman v. Solectron Corp., 2009 WL 1684725, at *4 (N.D. Cal. June 12, 2009)
`(“Under Fed. R. Civ. P. 34, a party is required to produce responsive documents within its
`‘possession, custody or control.’ Actual possession or legal ownership is not determinative.
`Instead, ‘federal courts have consistently held that documents are deemed to be within the
`‘possession, custody or control’ for purposes of Rule 34 if the party has…the legal right to obtain
`the documents on demand.’”) (citation omitted). The argument that Mr. Markiles cannot access his
`Stubbs e-mail accounts— at his own firm, as a named partner, and in the same manner he already
`does routinely for Claria and Europlay—is clearly incorrect. Moreover, if this argument is
`accepted, it would provide parties with a way to avoid legitimate discovery—simply conduct
`business through another email domain. Moreover, Europlay admits that Mr. Markiles has already
`
`
`Nevertheless, they contend that the Court cannot continue to enforce its order unless it first requires
`the parties to brief an issue not before it, i.e., whether the Court would have “subject matter
`jurisdiction” over a request to add them as judgment debtors under Rule 69 and Code Civ. P. § 187.
`See Toho-Towa Co. v. Morgan Creek Prods., Inc., 217 Cal. App. 4th 1096, 1100 (2013).
`2 A third issue (originally “Issue No. 2”) related to Mr. Bermeister’s accounts, was resolved by a
`further conference of counsel.
`
`JOINT STATEMENT RE
`AMAZON’S MTC #2
`
`
`
`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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`
`
`

`

`Case 5:18-md-02834-BLF Document 801 Filed 11/11/22 Page 4 of 8
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`searched his personal Google account for documents residing on Google servers, showing that the
`line that Europlay has drawn is unjustified and self-serving.
`Requested Relief. The Court should order the Investors to produce all responsive
`documents from the above email accounts. “The court…may hold in contempt a person who…fails
`without adequate excuse to obey the subpoena or an order related to it.” Fed. R. Civ. P. 45(g).
`Amazon requests that the Court order Investors to reimburse Amazon its fees to obtain compliance.
`STATEMENT OF BDE, CLARIA, AND EUROPLAY3
`II.
`Respondents (“Third Parties”) to this motion to compel third party judgment debtor
`discovery have spent hundreds of collective hours and produced nearly one hundred thousand pages
`of documents, many of which have absolutely nothing to do with whether they possess assets of
`the judgment debtor in this case. Amazon’s demand that Third Parties boil the ocean to find more
`documents is inappropriate, both generally, and specifically as to the arguments made here.
`The first issue—that Third Parties collected documents “without any oversight by
`counsel”—is flatly and demonstrably false, and Amazon knows it. Amazon cites no authority for
`the proposition that a nonparty subpoenaed under Rule 45 must even retain counsel in connection
`with a production—Rule 45 itself does not say that. Nor does Amazon cite any authority that it is
`improper for a represented third party to itself conduct document searches or that its counsel must
`personally attest to the client's efforts.
`In any event, the collection was well supervised by counsel. Counsel for Third Parties
`discussed their supervision of their clients' search efforts in a lengthy meet and confer call with
`Amazon’s counsel and thereafter. The written response to the subpoena served by Third Parties’
`counsel and the Joint Statements for the previous two motions are subject to Rules 11 and 26(g).
`Third Parties also served the Bermeister, Markiles, and Neumann Declarations ordered by the
`Court’s September 12, 2022 Order (Dkt. 779) (“Order”). Amazon points to no violation of any Rule
`by Third Parties or their counsel or that the declarations were noncompliant with the Order. Nor
`has it shown the kind of “black hole” in any production, as existed in Rodman, 2016 WL 5791210,
`at *2-4, where one logically would expect to receive documents but none were produced.
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`3 The motion makes no claims as to Monto.
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`JOINT STATEMENT RE
`AMAZON’S MTC #2
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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
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 801 Filed 11/11/22 Page 5 of 8
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`Amazon’s suggestion of “need” because the District Court supposedly ruled that Bermeister
`previously submitted a false declaration greatly overstates that Court’s ruling, which had nothing
`to do with discovery, PW assets or alter ego issues in any event. The assertion that Bermeister,
`along with Mr. Markiles,4 “fired” the Stubbs firm for any reason, let alone to derail responding to
`Amazon’s post judgment discovery, is based on a Stubbs representation with which Bermeister
`disagrees. As for Amazon’s handwringing about the state court receivership, any claim of supposed
`impropriety is for the receivership court to determine.
`Issue No. 2, Amazon’s assertion that in responding to the subpoena Mr. Bermeister has
`refused to search “kbermeister@brilliantdigital.com” and produce responsive documents, has been
`resolved through further meet and confer efforts and is no longer part of this motion.
`As to the third issue, it is hardly absurd that the actual entities that received the subpoenas—
`Europlay and Claria—lack possession custody or control of email servers belonging to a law firm
`with which they do not share any computer infrastructure. That a member of Europlay and Claria—
`Mr. Markiles, who was not personally subpoenaed—is also a partner of the firm has no bearing on
`Europlay’s or Claria’s right of access to the files of a different business altogether. To the extent
`that emails from Mr. Markiles’s Stubbs Alderton account appear in the current discovery, it is
`because they were forwarded or copied to Mr. Markiles’ ECA account, which was searched. And
`the analogy to gmail is facile. Google gives out email addresses and hosts email accounts for
`anyone. Stubbs Alderton does not. In any event, this appears to be a moot issue given the Court’s
`October 31, 2022 order ordering PersonalWeb to produce documents from its counsel at the Stubbs
`Alderton firm.
`At this point, Amazon’s discovery efforts have exceeded permissible the scope of Rule 69,
`under which “[t]hird persons can only be examined about assets of the judgment debtor and cannot
`be required to disclose their own assets.” Ryan Inv. Corp. v. Pedregal de Cabo San Lucas, 2009
`WL 5114077, at *3 (N.D. Cal. Dec. 18, 2009). Amazon has all the information required to ascertain
`if Third Parties possess any of PersonalWeb.com’s assets. Amazon perhaps intends to make a run
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`4
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`4 Mr. Markiles was not a “founder” of PersonalWeb. He was a member of a company that,
`through a subsidiary, was one of three companies that formed PersonalWeb and now owns 10%.
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`JOINT STATEMENT RE
`AMAZON’S MTC #2
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 801 Filed 11/11/22 Page 6 of 8
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`at holding Third Parties liable on the judgment on a veil piercing theory. No evidence supports such
`a theory. But more fundamentally, the Court lacks subject matter jurisdiction to reach it. The Court’s
`“relating to patents” jurisdiction, 28 U.S.C. §§ 1331, 1338, expired upon entry of judgment.
`Peacock v. Thomas, 516 U.S. 349, 35 (1996).
`All that remains is the Court’s “ancillary enforcement jurisdiction” over Rule 69
`proceedings to recover a debtor’s property from third parties. Thomas, Head & Greisen Emps. Trust
`v. Buster, 95 F.3d 1449, 1455 (9th Cir. 1996). But “absent an independent basis for federal
`jurisdiction, a new defendant may not be joined in a supplementary proceeding to pierce the
`corporate veil.” Id. at 1454; see Peacock, 516 U.S. at 357; Sandlin v. Corp. Int’rs Inc., 972 F.2d
`1212, 1216 (10th Cir. 1992); U.S.I. Props. Corp. v. M.D. Const. Co., 230 F.3d 489, 498 (1st Cir.
`2000). There is no such basis here. Given that, further discovery is inappropriate. U.S. Cath. Conf.
`v. Abortion Ruts. Mobilz’n Inc., 487 U.S. 72, 76 (1988) (“[I]f a district court does not have subject-
`matter jurisdiction over the underlying action, and the [subpoena] was not issued in aid of
`determining that jurisdiction, then the [subpoena] is void[.]”).
`The lack of subject matter jurisdiction is a serious issue. Yet, as non-parties, Third Parties
`cannot raise it in a Rule 12 motion. Third Parties respectfully request that the Court permit full
`briefing.
`
`JOINT STATEMENT RE
`AMAZON’S MTC #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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`Case 5:18-md-02834-BLF Document 801 Filed 11/11/22 Page 7 of 8
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`Dated: November 11, 2022
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`Respectfully submitted,
`FENWICK & WEST LLP
`
`
`
`By: /s/ Todd R. Gregorian
`TODD R. GREGORIAN
`
`
`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
`
`Attorneys for AMAZON.COM, INC.,
`AMAZON WEB SERVICES, INC., and
`TWITCH INTERACTIVE, INC.
`
`Dated: November 11, 2022
`
`FRANDZEL ROBINS BLOOM & CSATO, L.C.
`
`
`
`By: /s/ Thomas M. Robins III
`THOMAS M. ROBINS III
`
`(SBN 70849)
`MICHAEL G. FLETCHER
`mfletcher@frandzel.com
`THOMAS M. ROBINS III (SBN 54423)
`trobins@frandzel.com
`BRUCE D. POLTROCK (SBN 162448)
`bpoltrock@frandzel.com
`FRANDZEL ROBINS BLOOM
` & CSATO, L.C.
`1000 Wilshire Boulevard, Nineteenth Floor
`Los Angeles, California 90017-2427
`Telephone: (323) 852-1000
`Facsimile: (323) 651-2577
`
`Attorneys for Third Parties BRILLIANT
`DIGITAL ENTERTAINMENT, INC.; and
`MONTO HOLDINGS PTY. LTD.
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`6
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`JOINT STATEMENT RE
`AMAZON’S MTC #2
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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 801 Filed 11/11/22 Page 8 of 8
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`Dated: November 11, 2022
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`KIRKLAND & ELLIS LLP
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`
`
`By: /s/ Michael Shipley
`MICHAEL SHIPLEY
`
`MARK HOLSCHER (SBN 139582)
`mark.holscher@kirkland.com
`MICHAEL SHIPLEY (SBN 233674)
`michael.shipley@kirkland.com
`KIRKLAND & ELLIS LLP
`555 South Flower Street
`Los Angeles, CA 90071
`Telephone: (213) 680-8400
`
`Attorneys for Third Parties EUROPLAY
`CAPITAL ADVISORS, LLC and CLARIA
`INNOVATIONS, LLC
`
`
`
`CERTIFICATION OF CONCURRENCE IN FILING
`I, Todd R. Gregorian, am the ECF user whose identification and password are being used
`to file this Joint Statement. In compliance with N.D. Cal. Civil L.R. 5-1(h)(3), I hereby attest that
`Thomas M. Robins III and Michael Shipley have concurred in this filing.
`
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`Dated: November 11, 2022
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`/s/ Todd R. Gregorian
`TODD R. GREGORIAN
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`JOINT STATEMENT RE
`AMAZON’S MTC #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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`FENWICK & WEST LLP
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