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`Case 5:18-md-02834-BLF Document 807 Filed 11/29/22 Page 1 of 7
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`
`
`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
`CHRISTOPHER S. LAVIN (CSB No. 301702)
`clavin@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
`
`REQUEST OF AMAZON.COM, INC.,
`AMAZON WEB SERVICES, INC., AND
`TWITCH INTERACTIVE, INC. FOR
`STATUS CONFERENCE
`
`
`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.
`
`
`
`
`
`REQUEST FOR STATUS CONFERENCE
`
`
`
`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 807 Filed 11/29/22 Page 2 of 7
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`Amazon respectfully requests that the Court hold a status conference at the Court’s
`convenience concerning PersonalWeb’s compliance with its discovery orders. (See Dkts. 793 &
`799; see also Dkt. 704.) Amazon also requests that, as suggested at the November 9 hearing, the
`Court direct former counsel for PersonalWeb, Stubbs Alderton & Markiles LLP (“Stubbs
`Alderton”) to attend.1
`The Court ordered PersonalWeb to produce documents on a rolling basis and complete
`compliance with its order by January 20, 2023. The Court also ordered PersonalWeb to provide
`information concerning its collection from Stubbs Alderton—and advised PersonalWeb to err on
`the side of providing “more information” lest the Court be forced to become more involved in
`overseeing the production. The status report that PersonalWeb filed did not comply with the
`Court’s order, and indeed it conveyed no meaningful information beyond what PersonalWeb had
`already disclosed before the Court even ordered the report. Amazon has made numerous
`unsuccessful attempts to confer that indicate that PersonalWeb and Stubbs Alderton have gone back
`to their exact same behavior of trying to game the Court’s orders. Specifically:
`In the three weeks since the discovery hearing, PersonalWeb has produced a mere
`•
`711 documents of the 59,000 that it had withheld based on a privilege screen.
`PersonalWeb has also steadfastly refused to discuss its slow pace of compliance
`•
`with Amazon. PersonalWeb told the Court that if it devoted 50 hours per week to
`compliance, it would not complete review of just the screened documents alone for 20
`weeks, i.e., 10 weeks later than the Court ordered. PersonalWeb has not devoted the 50
`hours it promised, let alone the 100+ hours per week necessary to comply.
`During the three weeks since the hearing, PersonalWeb and Stubbs Alderton refused
`•
`to provide any information to Amazon concerning the scope of the search for documents in
`Stubbs Alderton’s possession, even though Amazon repeatedly suggested that the parties
`should negotiate the scope of the search in advance to avoid wasteful motion practice. Just
`today, the reason for PersonalWeb’s refusal became clear. It disclosed that Stubbs had
`
`
`1 PersonalWeb has stated that it will not oppose a request for Stubbs Alderton to appear before the
`Court.
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`REQUEST FOR STATUS CONFERENCE
`
`
`
`1
`
`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
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`

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`Case 5:18-md-02834-BLF Document 807 Filed 11/29/22 Page 3 of 7
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`turned over a mere 200 documents, all obtained by a perfunctory search for the word
`“PersonalWeb” and several variants, and by applying an arbitrary date cutoff of July 2021.
`Amazon has objected, but PersonalWeb has essentially taken the position that it can only
`make polite requests of Stubbs Alderton rather than direct it to turn over the responsive
`documents that PersonalWeb controls.
`Finally, Amazon identified seven document categories covered by the Court’s order
`•
`and requested that PersonalWeb prioritize their production from Stubbs Alderton, offering
`that might allow the parties to streamline or forego further collection thereafter.
`PersonalWeb rejected that offer, but it also refused to say whether it intends to produce the
`document categories at all. Amazon believes that any disputes about whether these
`categories of documents are responsive to the order should be resolved now, by a letter brief
`to the Court if necessary. PersonalWeb wants Amazon to wait until late January 2023, when
`Amazon faces an imminent motion deadline, to find out whether PersonalWeb withheld
`these documents. If PersonalWeb is finely parsing the Court’s order to avoid producing
`key documents, it should disclose that now, and not be allowed to game the schedule.
`BACKGROUND
`The Court Finds PersonalWeb Waived Objections and Once Again Orders PersonalWeb
`to Produce All Responsive Documents. On October 31, 2022, the Court reaffirmed its previous
`order in that “PersonalWeb . . . waived its attorney-client privilege and attorney work product
`protection regarding the subject discovery and is to provide complete responses and a complete
`document production.” (Dkt. 793; see also Dkt. 704.) Just prior to this order, the parties conferred
`and entered a stipulation where they agreed to use a first set of search terms to identify responsive
`documents, and a second set of search terms to screen out documents subject to withholding based
`on PersonalWeb’s disputed privilege claims (“privilege screen”). (Dkt. 791 at 2-4.) The stipulation
`provided that PersonalWeb would produce all responsive documents except for those that hit on
`the privilege screen, which it would manually review pending the Court’s ruling on its privilege
`assertions. (Id.)
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`REQUEST FOR STATUS CONFERENCE
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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
`
`FENWICK & WEST LLP
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`
`
`

`

`Case 5:18-md-02834-BLF Document 807 Filed 11/29/22 Page 4 of 7
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`Discovery Hearing and Order. After the Court rejected PersonalWeb’s privilege
`objections, Amazon filed a proposed order requesting a deadline to timely produce the privilege
`screen materials. (Dkt. 794.) On November 9, 2022, the Court held a discovery hearing. (Dkt.
`799.) During that hearing, the Court stated to the parties, as to Stubbs Alderton:
`I will issue any order that is needed to facilitate or to give them the direction they
`need as to what has to be produced. The gamesmanship on that side is done. We’re
`done. So if something’s not happening or materials are not being produced, again,
`as you said, you don’t know what you don’t know. But what I want, Mr.
`McCormick is a status report from you….
`
`[To counsel for PersonalWeb:] I want you to reach out to them today to get more
`of a date certain as to that first production with three elements: the date of the
`production. I want a description of the content to your question. Are they just
`turning over client files? Are they doing a responsiveness poll? What is it that
`you’re getting….When are you going to get it? What are you going to get? And as
`of today’s date which is the 9th of November, what’s the estimate of the size of the
`first production.
`
`And in terms of rolling production, what are they thinking in terms of duration? Is
`it a two-week rolling? So, that’s a fourth thing. Again, we just need more specificity
`from them.
`(Dkt. 798 (Hearing Tr.) at 15:21-16:2; id. at 16:13-23; id. at 17:24-18:2.) The Court warned
`PersonalWeb to err on the side of providing “more information” in the status report:
`Make that call. Get that information and that’ll be a start. But the more information
`you can get about the production, then the more willing I can wait and see what
`materializes. The less information that is forthcoming, then I’m going to have to
`get more involved….And they’ll have to come in and appear….But we’ve got to
`make this happen.
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`3
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`(Id. at 17:7-16.) Also, during that hearing, PesonalWeb stated that Stubbs Alderton had informed
`it that Stubbs Alderton expected to provide an initial batch of documents to Lewis Roca by the
`Thanksgiving holiday. (Dkt. 798 (Hearing Tr.) at 4:20-22; id. at 16:6-8.)
`
`After the hearing, the Court ordered “PersonalWeb’s production of documents as ordered
`in Dkt. 793 will proceed on a rolling basis and be completed by January 20, 2023.” (Dkt. 799.)
`The Court also ordered “[b]y November 14, 2022, PersonalWeb’s current counsel Lewis Roca
`Rothgerber Christie, LLP (“Lewis Roca”) must confer with Stubbs Alterton Markiles LLP (“Stubbs
`Alterton”) and file with the Court a status report addressing: (1) the date, content, and estimated
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`REQUEST FOR STATUS CONFERENCE
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`

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`Case 5:18-md-02834-BLF Document 807 Filed 11/29/22 Page 5 of 7
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`size of Stubbs Alterton’s first production of documents to Lewis Roca; and (2) the estimated date
`upon which Stubbs Alterton’s production of document to Lewis Roca will be completed.” (Id.)
`PersonalWeb’s Deficient Status Report. PersonalWeb and Stubbs Alderton did not
`comply with the order as the status report conveys no meaningful information beyond what
`PersonalWeb had already disclosed before the Court ordered the report—that Stubbs Alderton
`expected to provide an initial set of documents to Lewis Roca by November 24, 2022, i.e.,
`Thanksgiving:
`SAM has represented to Lewis Roca that it presently expects its first production to
`Lewis Roca to be made prior to November 24, 2022. SAM has represented to Lewis
`Roca that this first production will consist of communications between SAM
`timekeepers and PersonalWeb representatives. SAM has represented to Lewis
`Roca that the estimated size of this production is currently unknown, as SAM is
`presently collecting and reviewing communications to furnish to Lewis Roca.
`(Dkt. 802 at 2:5-10.2) Based on the status report and subsequent conferences between Lewis Roca
`and counsel for Amazon, it appears that PersonalWeb cannot provide the information because it is
`allowing Stubbs Alderton to dictate the document collection process.
`Further Conferences Confirm Stubbs Alderton Is Dictating Its Own Deficient Document
`Collection Without Oversight By Lewis Roca. For weeks, Amazon has attempted without success
`to confer concerning the search criteria employed by PersonalWeb and Stubbs Alderton as well as
`the timing of the rolling production. PersonalWeb has refused to discuss its compliance efforts
`even though it has produced fewer than 1,400 documents in three weeks.3 PersonalWeb also
`disclosed for the first time on November 29 that Stubbs Alderton has provided only 200 documents
`to Lewis Roca for review and possible production. Stubbs Alderton has unilaterally decided to run
`keyword searches for only “Personal Web”, “personalweb”, “ pw ”, and “ pw”, terms that do not
`capture responsive documents unless they literally mention PersonalWeb by name (and moreover,
`
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`2 PersonalWeb further stated regarding the overall production, that “initial estimates of production
`are dynamic as SAM is setting and re-setting parameters for collection, with initial SAM estimates
`of collection and SAM own internal review, varying between approximately 15,000 to 17,000
`documents, or between approximately 5.5GB to 6.5GB of data.” (Dkt. 802.) This is a moving
`target and unhelpful, and in retrospect is false, as Stubbs has turned over only 200 documents not
`15,000.
` In addition to the 711 privilege screen documents, PersonalWeb has also produced 686 documents
`based on the parties’ bulk production protocol. (See Dkts. 791 & 792.)
`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
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`REQUEST FOR STATUS CONFERENCE
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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 807 Filed 11/29/22 Page 6 of 7
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`do not even capture “PWeb,” an often-used shorthand). Stubbs Alderton has decided to limit the
`search for documents to a July 30, 2021 end date (without disclosing any reason), and may have
`also withheld PersonalWeb’s documents on the basis of arguments that Stubbs Alderton was acting
`on behalf of a closely-related entity instead of or in addition to PersonalWeb.
`For its part, PersonalWeb admits that it is simply the messenger between Amazon and
`Stubbs Alderton relaying Amazon’s concerns and questions over Stubbs Alderton’s search and
`production and then providing whatever piecemeal information that Stubbs Alderton wants to
`provide. Despite no fewer than five requests over a period of two weeks, PersonalWeb has refused
`to say whether it intends to produce categories of documents responsive to the Court’s order that
`Amazon has identified as of top concern, or whether it intends to raise some belated objection to
`them.4
`
`REQUEST FOR STATUS CONFERENCE
`Amazon requests that the Court schedule a status conference at the Court’s convenience
`
`including Stubbs Alderton to obtain information on document collection from Stubbs Alderton and
`to secure assurances that the production from PersonalWeb will be completed on a rolling basis by
`January 20, 2023, in compliance with the Court’s orders. Amazon will comply with any alternative
`procedure that the Court prefers for raising these issues.
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`4 The categories are: (1) Any responsive documents or communications for which Mr. Markiles is
`a custodian, sender, recipient. (2) Documents concerning the corporate or investment structure of
`PersonalWeb, including the purpose of its structure vis a vis its investors and principals, and any
`advice provided by Stubbs Alderton or other professionals concerning those subjects. (3)
`Information on the loans between PersonalWeb and the secured creditors, including but not limited
`to, why PersonalWeb entered into the loans, negotiations of the loans, extensions of the loans, and
`the decisions to foreclose on the loans, including any advice provided by Stubbs Alderton or other
`professionals concerning those subjects. (4) Information on the receivership, including the
`possibility of entering into a receivership, the decision to enter into receivership, purpose of the
`receivership, and winding-up/termination of the receivership, including any advice provided by
`Stubbs Alderton or other professionals concerning those subjects. (5) Communications regarding
`a potential for a fee award against PersonalWeb in seeking to monetize its patent assets. (6) Any
`communications between Stubbs Alderton and Ronald Richards. (7) All agreements between
`Stubbs Alderton and PersonalWeb or its principals.
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`REQUEST FOR STATUS CONFERENCE
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`5
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`CASE NOS. 5:18-md-02834-BLF,
`5:18-cv-00767-BLF, and
`5:18-cv-05619-BLF
`
`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 807 Filed 11/29/22 Page 7 of 7
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`
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`Dated: November 29, 2022
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`FENWICK & WEST LLP
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`Respectfully submitted,
`
`
`By: /s/ Todd R. Gregorian
`TODD R. GREGORIAN (CSB No. 236096)
`
`Attorney for AMAZON.COM, INC.,
`AMAZON WEB SERVICES, INC., and
`TWITCH INTERACTIVE, INC.
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`REQUEST FOR STATUS CONFERENCE
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`6
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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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