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`Case 5:18-md-02834-BLF Document 823 Filed 12/09/22 Page 1 of 5
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`
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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
`
`STATUS UPDATE RE REQUEST OF
`AMAZON.COM, INC., AMAZON WEB
`SERVICES, INC., AND TWITCH
`INTERACTIVE, INC. FOR STATUS
`CONFERENCE
`
`JUDGE: Hon. Susan van Keulen
`
`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.
`
`
`
`
`
`STATUS UPDATE (DEC. 9, 2022)
`
`
`
`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 823 Filed 12/09/22 Page 2 of 5
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`Amazon submits this status update in response to the Court’s order (Dkt. 816).
`Search of PersonalWeb Production for Claria/ECA Documents. Amazon was able to
`complete its staging of the PersonalWeb bulk production late last night, and conduct a search for
`Exhibits 2, 3, 9, 22, and 25 to the declaration of Christopher Lavin (Dkt. 810-1). Only one of the
`emails, Exhibit 2, appears in the PersonalWeb production, likely because Michael Weiss, the
`custodian from whom PersonalWeb collected documents, is copied on the email.
`This inquiry has shown that the dispute with Claria and ECA about searching the email
`accounts of their managing agent Murray Markiles is not “moot.” That conclusion is also supported
`by recent correspondence with Stubbs Alderton, which suggests that Stubbs is categorizing Claria
`and ECA documents as not responsive to the Court’s order against PersonalWeb (Dkt. 822-2 at 3),
`as well as Stubbs Alderton’s refusal for weeks to provide a direct answer to that question. (See
`Dkt. 822.)
`Accordingly, the Court should grant the motion to compel as to Claria and ECA.
`The exhibits that Amazon has submitted to the Court show that Mr. Markiles used his
`Stubbs Alderton email accounts to conduct the business of Claria and ECA, sometimes exclusively
`for business purposes as the Managing Director of ECA or managing agent of Claria, and
`sometimes in a way where his business and legal roles were intermingled. Mr. Markiles still has
`access to and control over these accounts, and thus, they are within the scope of discovery. Outdoor
`Pro Shop, Inc. v. Monster Energy Co., Civ. A. No. 20-cv-05999-BLF (VKD), 2022 WL 767277, at
`*2 (N.D. Cal. Mar. 11, 2022) (recipient of discovery requests must conduct a search for documents
`that “include locations that are reasonably likely to contain responsive documents”). ECA and
`Claria have represented that Mr. Markiles would need some additional permission from Stubbs
`Alderton to perform a server-side collection, but that is of no moment given that he still has access
`to and control over the accounts (just as a custodian can search his or her Gmail account without a
`subpoena to Google). The Court should grant the motion to compel Claria and ECA to search Mr.
`Markiles’ Stubbs Alderton email accounts for responsive documents.1
`
`1 Nor can Claria or ECA avoid conducting a search based on privilege. They cannot shield
`documents that contain Mr. Markiles’s business dealings on their behalf, because those documents
`are not privileged. Staley v. Gilead Sciences, Inc., Civ. A. No. 19-cv-02573-EMC(LB), Dkt. 617
`STATUS UPDATE (DEC. 9, 2022)
`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 823 Filed 12/09/22 Page 3 of 5
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`PersonalWeb’s Production from its Own Files. On December 7, 2022, PersonalWeb
`produced approximately 44,000 privilege screen documents to Amazon. These are documents that
`came from PersonalWeb itself and do not include any of the documents collected from Stubbs
`Alderton. After this production, PersonalWeb still has approximately 17,000 privilege screen
`documents that it must produce by January 20, 2023, per the Court’s order. PersonalWeb and
`Amazon have reached an agreement that PersonalWeb will make rolling productions every two
`weeks with the next production scheduled for December 22, 2022.
`
`Stubbs Alderton’s Inadequate Search. On November 11, 2022, after the discovery
`hearing, Amazon immediately contacted PersonalWeb to confer about the search criteria for the
`PersonalWeb documents in Stubbs Alderton’s possession. Amazon proposed that PersonalWeb
`prioritize production of seven categories2 of documents from Stubbs Alderton to try to streamline
`collection, with an offer to potentially forego further production from Stubbs if PersonalWeb
`promptly and fully produced as to those categories. PersonalWeb relayed this request by November
`14, 2022 to Stubbs Alderton, which purportedly not only rebuffed the proposal, but refused to
`provide any information on its search and collection. (Stubbs Alderton’s refusal is evident from
`PersonalWeb’s later failure to comply with the Court’s order directing it to provide a status report.
`
`(N.D. Cal. June 14, 2021) (slip op.) (“The attorney-client privilege does not apply to an attorney’s
`communications about business matters (as opposed to legal advice).”); U.S. v. ChevronTexaco
`Corp., 241 F. Supp.2d 1065, 1076 (N.D. Cal. 2002) (“The [attorney-client] privilege does not
`protect an attorney’s business advice. Corporations may not conduct their business affairs in
`private simply by staffing a transaction with attorneys.” Moreover, there is no joint defense or
`common interest privilege over at least the documents concerning the bogus “secured loans” to
`PersonalWeb from Claria and ECA and the resulting foreclosure and receivership, as PersonalWeb
`was adverse to Claria and ECA in those transactions and lawsuit.
` 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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`STATUS UPDATE (DEC. 9, 2022)
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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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`
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`

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`Case 5:18-md-02834-BLF Document 823 Filed 12/09/22 Page 4 of 5
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`(See Dkts. 798, 802, & 807.)
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`Having refused to confer even with PersonalWeb about the means employed to locate
`PersonalWeb’s documents, Stubbs Alderton conducted its own search in secret and has provided
`approximately 20,000 emails to PersonalWeb and only then disclosed its criteria.3 Stubbs Alderton
`(1) disclosed only that it has searched emails of individual custodians and not its other electronic
`documents or paper files maintained for PersonalWeb; (2) without explanation refused to collect
`any documents dated after July 31, 2021; and (3) has only run keyword searches for
`“PersonalWeb”, “personalweb”, “pw ”, and “pw,” failing to capture any documents that don’t
`literally mention PersonalWeb by name (or even those that mention “PWeb,” an oft-used shorthand
`for PersonalWeb). (See Dkt. 822-2 at 9-11.) Amazon suspects the documents captured by these
`criteria will consist mainly of worthless ECF notices from PersonalWeb’s numerous litigations,
`while the files at Stubbs Alderton containing PersonalWeb’s actual business records remain
`untouched.
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`Even though the Court has ordered PersonalWeb to produce its documents for which Stubbs
`Alderton is custodian, PersonalWeb refuses to direct its lawyers at Stubbs to turn over responsive
`documents. Amazon’s efforts to confer suggest that PersonalWeb has not even requested Stubbs
`Alderton provide the client file. And despite repeated requests Amazon has made directly to Stubbs
`Alderton for additional information, Stubbs has steadfastly refused to explain its deficient search
`criteria or answer other questions. (Id.) Instead, Stubbs Alderton has stated that it intends to
`respond in some form only by December 12, 2022, and that they are not “short order cooks” with
`respect to document collection. (Dkt. 822-2 at 6.)
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`3 PersonalWeb and Amazon have reached an agreement for PersonalWeb to bulk produce these
`documents subject to provisions for clawback by next week.
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`STATUS UPDATE (DEC. 9, 2022)
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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 823 Filed 12/09/22 Page 5 of 5
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`
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`Dated: December 9, 2022
`
`FENWICK & WEST LLP
`
`Respectfully submitted,
`
`By: /s/ Christopher S. Lavin
`CHRISTOPHER S. LAVIN
`
`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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`
`
`STATUS UPDATE (DEC. 9, 2022)
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`4
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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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