Case 5:18-md-02834-BLF Document 818 Filed 12/06/22 Page 1 of 4
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`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
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`Attorneys for Third Parties Europlay Capital
`Advisors, LLC and Claria Innovations, LLC
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`Case No.: 5:18-md-02834-BLF
`IN RE: PERSONAL WEB TECHNOLOGIES,
`LLC ET AL., PATENT LITIGATION,
`
`Case No.: 5:18-cv-00767-BLF
`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
`Case No.: 5:18-cv-05619-BLF
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`Plaintiffs
`EUROPLAY CAPITAL ADVISORS,
`LLC’S ADMINISTRATIVE MOTION
`TO CONTINUE DECEMBER 14
`HEARING DATE OR, IN THE
`ALTERNATIVE, TO PERMIT
`TELEPHONIC APPEARANCE
`
`v.
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Defendants.
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`PERSONALWEB TECHNOLOGIES, LLC, and
`LEVEL 3 COMMUNICATIONS, LLC,
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`Plaintiffs,
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`v.
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`TWITCH INTERACTIVE, INC.,
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`Defendant.
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`EUROPLAY CAPITAL ADVISORS, LLC’S
`ADMINISTRATIVE MOTION TO CONTINUE
`DECEMBER 14 HEARING DATE OR, IN THE
`ALTERNATIVE, TO PERMIT TELEPHONIC
`APPEARANCE
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`CASE NOS. 5:18-md-02834-BLF
`5:18-cv-00767-BLF
`5:18-cv-05619-BLF
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`Case 5:18-md-02834-BLF Document 818 Filed 12/06/22 Page 2 of 4
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`Pursuant to Local Rule 7-11 third-party subpoena recipient Europlay Capital Advisors, LLC
`(“ECA”) hereby moves for an administrative order relieving Murry Markiles of an obligation to appear
`in person in court on December 14, 2022.
`Amazon.com’s intransigency and lack of professional courtesy have unfortunately required ECA
`to seek the Court’s relief to resolve a basic scheduling conflict. A witness who was ordered to appear at
`a hearing on December 14, 2022 is unavailable on that date because he is scheduled to be out of the
`country on a vacation that was booked and paid for well in advance of the Court’s order. Instead of
`stipulating to a new date convenient to the Court and the parties, Amazon sought to extract substantive
`concessions and forced ECA to file this motion.
`On December 2, 2022, the Court issued an Order on Discovery Disputes in a long-standing
`dispute over the scope of post-judgment discovery in the above-captioned action. (Dkt. 816). The Court
`set a December 14, 2022 hearing and ordered personal appearances of various persons, including
`Murray Markiles, the managing agent of third-party subpoena recipient Europlay Capital Advisors, LLC
`(“ECA”).
`Unfortunately, Mr. Markiles is scheduled to be out of the country in Mexico on a pre-paid group
`vacation from December 11 to December 18, 2022. Markiles Dec. ¶ 1. The vacation was booked in
`September, at a time when Mr. Markiles had no reason to believe that the Court would be setting a live
`in-person hearing during that week. Id. ¶ 4. Given the late date, the time for Mr. Markiles to receive full
`refunds for his airfare and accommodations has long since passed. Id. ¶ 2.
`Forcing Mr. Markiles—who is neither a party nor employed by any party in this action—to
`cancel a pre-planned and pre-paid vacation would cause an unnecessary hardship and baselessly impose
`substantial expense. Mr. Markiles resides in Los Angeles. Id. ¶ 6. Requiring him to appear in San Jose
`on December 14 would also run afoul of the geographic limitations under Rule 45. See Fed. Code Civ.
`Proc. § 45(a)(1)(B)(ii) (non-party witness cannot be forced to attend trial more than 100 miles from his
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`EUROPLAY CAPITAL ADVISORS, LLC’S
`ADMINISTRATIVE MOTION TO CONTINUE
`DECEMBER 14 HEARING DATE OR, IN THE
`ALTERNATIVE, TO PERMIT TELEPHONIC
`APPEARANCE
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`2
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`5:18-cv-00767-BLF
`5:18-cv-05619-BLF
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`Case 5:18-md-02834-BLF Document 818 Filed 12/06/22 Page 3 of 4
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`residence if it would require him to “incur substantial expense”).1 ECA therefore respectfully requests
`that the Court: (a) reschedule the in-person hearing for a date after December 18, 2022, whether in the
`following week of December or in early January; or (b) permit Mr. Markiles to appear telephonically.
`Mr. Markiles could also make himself available for a remote hearing this week if that would prove
`suitable to the Court and the parties.
`Promptly after the Court issued its order, counsel for ECA contacted the other parties and third
`parties regarding the potential to stipulate to the relief sought herein. See Shipley Decl ¶¶ 3-7 & Ex. A.
`Counsel for Brilliant Digital Entertainment and counsel for PersonalWeb.com indicated that they do not
`object to the relief sought herein, but noted scheduling conflicts during the week of December 26, 2022.
`Shipley Decl. ¶ 3 & Ex. A. Counsel for Amazon, however, declined to agree and sought instead to
`extract substantive concessions regarding its discovery disputes with PersonalWeb’s former counsel at
`Stubbs Alderton—an entity over which neither ECA nor Mr. Markiles have any control. Id. Ex. A.
`Notably, counsel for Amazon failed to identify any concrete prejudice that would be caused were
`the Court to grant the scheduling relief requested by ECA. Id. Counsel asserted only vaguely that
`moving the hearing date into the following week would affect “the pre-paid plans of others.” These
`“others” are not identified and the dates and nature of their conflicts go unmentioned. Crucially, the
`Court did not order the appearance of any client or potential factual witness to appear and give
`testimony on Amazon’s behalf, so the “others” could be members of Amazon’s legal team whose
`appearance may be unnecessary to the progress of the hearing. Amazon has further provided no basis
`why, if there were true conflicts the following week, it or any other party would be prejudiced by
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`1 ECA notes that Rule 45(c)(1)(B)(ii) has been read by courts of this district as limited to compelled
`appearances at trial, and not at other hearings. Kinney v. Chomsky, 2014 WL 3725932, at *4 (N.D. Cal.
`July 25, 2014) (Although witnesses who live in Los Angeles “are subject to compulsory process to
`compel their testimony at a trial in the Northern District, see Fed. R. Civ. P. 45(c)(1)(B)(ii), they are not
`subject to compulsory process to compel their testimony at a deposition or hearing in the Northern
`District because Los Angeles is more than 100 miles away, see Fed. R. Civ. P. 45(c)(1)(A).”)
`Notwithstanding that limitation, Mr. Markiles does not object to appearing personally in San Jose, but
`notes only that being required to do so on December 14, 2022, would cause unnecessary financial
`expense.
`EUROPLAY CAPITAL ADVISORS, LLC’S
`ADMINISTRATIVE MOTION TO CONTINUE
`DECEMBER 14 HEARING DATE OR, IN THE
`ALTERNATIVE, TO PERMIT TELEPHONIC
`APPEARANCE
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`CASE NOS. 5:18-md-02834-BLF
`5:18-cv-00767-BLF
`5:18-cv-05619-BLF
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`Case 5:18-md-02834-BLF Document 818 Filed 12/06/22 Page 4 of 4
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`waiting to resolve these issues until early January, after the holidays and all of their attendant scheduling
`conflicts.
`Scheduling matters are afforded to the Court’s sound discretion and can be modified on a
`showing of good cause. Fed. R. Civ. P. 16(b)(4). The Court’s ability to permit remote testimony by
`contemporaneous transmission from a remote location is similarly within the Court’s discretion and
`subject to a good-cause justification. Fed. R. Civ. P. 43(a).
`Good cause is shown here. Given (1) that Mr. Markiles is not a party or an officer of any party in
`this action; (2) that Mr. Markiles’s vacation was planned and paid for prior to the Court setting the
`December 14, 2022 hearing; (3) that cancelling the vacation would subject Mr. Markiles to significant
`financial expense; (4) that Amazon and its counsel have made no showing that they would be prejudiced
`by a short continuance or by permitting Mr. Markiles to appear remotely; and (5) that ECA acted
`quickly upon the Court’s order to seek the relief sought herein, good cause has been satisfied. The
`motion should be granted.
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`Dated: December 6, 2022
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`Respectfully submitted,
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` /s/ 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
`
`
`
`
`EUROPLAY CAPITAL ADVISORS, LLC’S
`ADMINISTRATIVE MOTION TO CONTINUE
`DECEMBER 14 HEARING DATE OR, IN THE
`ALTERNATIVE, TO PERMIT TELEPHONIC
`APPEARANCE
`
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`4
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`CASE NOS. 5:18-md-02834-BLF
`5:18-cv-00767-BLF
`5:18-cv-05619-BLF
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