Case 5:18-md-02834-BLF Document 822 Filed 12/08/22 Page 1 of 4
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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
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`Counsel for AMAZON.COM, INC.,
`AMAZON WEB SERVICES, INC., and
`TWITCH INTERACTIVE, INC.
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
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`Case No.: 5:18-md-02834-BLF
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`Case No.: 5:18-cv-00767-BLF
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`Case No.: 5:18-cv-05619-BLF
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`RESPONSE OF AMAZON.COM, INC.,
`AMAZON WEB SERVICES, INC. AND
`TWITCH INTERACTIVE, INC.
`TO ADMINISTRATIVE MOTION TO
`CONTINUE DECEMBER 14 HEARING
`DATE OR, IN THE ALTERNATIVE, TO
`PERMIT TELEPHONIC APPEARANCE
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`IN RE: PERSONAL WEB TECHNOLOGIES,
`LLC ET AL., PATENT LITIGATION
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`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
`Plaintiffs
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`v.
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Defendants,
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Plaintiffs,
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`v.
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`TWITCH INTERACTIVE, INC. a Delaware
`corporation
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`Defendants.
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`RESP TO ADMINISTRATIVE MOTION TO
`CONTINUE HEARING DATE
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`1
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`CASE NO.: 5:18-cv-02834-BLF
`CASE NO.: 5:18-cv-00767-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 822 Filed 12/08/22 Page 2 of 4
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`Amazon provides the following response to ECA and Claria’s request to excuse Mr.
`Markiles from the December 14 hearing:
`1. Counsel for ECA and Claria has reported to Amazon the following information: Mr.
`Markiles used the disputed email accounts actively during approximately 2010-2012
`with limited use thereafter and he retains access to them. Mr. Markiles is also informed
`about Stubbs Alderton’s collection of materials in response to the orders against
`PersonalWeb. ECA and Claria’s position nevertheless remains that the Stubbs collection
`could moot their need to collect from the disputed accounts if Stubbs and PersonalWeb
`are collecting and producing the responsive ECA and Claria documents from those
`accounts.1
`2. The principal attorneys responsible for the Stubbs Alderton collection appear to be
`Michael Sherman and Jeffrey Gersh, who also remain counsel of record for PersonalWeb
`in the Federal Circuit appeal of the fee award. Messrs. Sherman and Gersh continue to
`refuse to provide information about their collection, including such basic information as
`(a) whether they will search any files other than email; (b) whether they are withholding
`any responsive documents, including documents deemed to ECA’s or Claria’s instead of
`PersonalWeb’s (or part of a joint representation or common interest); (c) whether Stubbs
`will search for and treat certain categories as responsive to the Court’s order or withhold
`them; (d) why they refused to collect documents dated after July 2021. Mr. Sherman has
`taken the position that Stubbs will not commit to providing information in response to
`these requests until December 12, after Amazon’s status report is due to the Court and
`on the eve of the currently-scheduled hearing. See Exhibit B (correspondence). This,
`and the fact that PersonalWeb itself still refuses to direct Stubbs concerning the
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`1 ECA and Claria contend also that collection from the email accounts would be burdensome
`because Mr. Markiles cannot perform a server-side collection of the email accounts at Stubbs
`Alderton. Counsel has informed Amazon that Mr. Markiles is no longer an active partner at
`Stubbs Alderton notwithstanding that the law firm website continues to advertise that he remains
`a “partner,” “founding partner,” and “member of the firm’s executive committee.” Exhibit A
`(https://stubbsalderton.com/attorney/murray-markiles/ ).
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`2
`RESP TO ADMINISTRATIVE MOTION TO
`CONTINUE HEARING DATE
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`CASE NO.: 5:18-cv-02834-BLF
`CASE NO.: 5:18-cv-00767-BLF
`CASE NO.: 5:18-cv-05619-BLF
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`Case 5:18-md-02834-BLF Document 822 Filed 12/08/22 Page 3 of 4
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`collection, has prevented Amazon from making progress on the issues informally.
`3. PersonalWeb did not make its bulk production of privilege screen documents on
`December 5 as promised. Instead that production was delayed until December 7. The
`bulk production consists of documents collected from PersonalWeb itself and does not
`contain any of the Stubbs collection. Due to the time it will take to process and stage that
`production for an electronic search, Amazon will likely not be able to answer the Court’s
`questions about whether certain Markiles emails are in the production until the weekend
`or early next week. Amazon has asked PersonalWeb to report on whether the production
`contains the emails in question, and also to represent to the Court that neither it nor Stubbs
`attempted to game the Court’s inquiry by cherry-picking those emails for inclusion.
`Amazon currently does not know whether PersonalWeb will comply.
`4. Given the above, Amazon believes that personal appearances by the Stubbs Alderton
`attorneys remain appropriate. If the Court desires to move the in-person hearing so that
`Mr. Markiles can participate without interrupting his travel plans, Amazon is available
`for an in-person appearance on January 4-6 or 11-13.
`5. If the Court does move the hearing, Amazon requests that the Court conduct a remote
`conference at the originally scheduled time with Messrs. Sherman and Gersh of Stubbs
`Alderton present, to address their refusals discussed above and in Amazon’s other filings,
`so that it may make progress on the PersonalWeb disputes.
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`RESP TO ADMINISTRATIVE MOTION TO
`CONTINUE HEARING DATE
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`3
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`CASE NO.: 5:18-cv-02834-BLF
`CASE NO.: 5:18-cv-00767-BLF
`CASE NO.: 5:18-cv-05619-BLF
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`Case 5:18-md-02834-BLF Document 822 Filed 12/08/22 Page 4 of 4
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`December 8, 2022
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`FENWICK & WEST LLP
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`By: /s/ Todd R. Gregorian
`Todd R. Gregorian
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`Counsel for Defendants AMAZON.COM, INC.,
`AMAZON WEB SERVICES, INC., and
`TWITCH INTERACTIVE, INC.
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`RESP TO ADMINISTRATIVE MOTION TO
`CONTINUE HEARING DATE
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`4
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`CASE NO.: 5:18-cv-02834-BLF
`CASE NO.: 5:18-cv-00767-BLF
`CASE NO. 5:18-cv-05619-BLF
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