Case 5:18-md-02834-BLF Document 824 Filed 12/09/22 Page 1 of 5
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`MICHAEL A. SHERMAN (SBN 94783)
`masherman@stubbsalderton.com
`JEFFREY F. GERSH (SBN 87124)
`jgersh@stubbsalderton.com
`STUBBS ALDERTON & MARKILES, LLP
`15260 Ventura Blvd., 20th Floor
`Sherman Oaks, CA 91403
`Telephone:
`(818) 444-4500
`Facsimile:
`(818) 444-4520
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`Attorneys for Stubbs Alderton & Markiles, LLP
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`UNITED STATES DISTRICT COURT
`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
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`Case No.: 5:18-cv-05619-BLF
`STATEMENT OF STUBBS ALDERTON
`& MARKILES, LLP PERMITTED BY
`COURT ORDER DATED DECEMBER 2,
`2022
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`AMAZON.COM, INC. and AMAZON WEB
`SERVICE, INC.,
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` Plaintiffs,
`v.
`PERSONALWEB TECHNOLOGIES, LLC, et
`al.,
` Defendants.
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`PERSONALWEB TECHNOLOGIES, LLC, et
`al.,
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`v.
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`TWITCH INTERACTIVE, INC.,
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`Plaintiffs,
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`Defendant.
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`STATEMENT OF SAM
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`CASE NO: 5:18-md-02834-BLF
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`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 824 Filed 12/09/22 Page 2 of 5
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`On September 15, 2022 Stubbs Alderton & Markiles, LLP (SAM) was permitted to substitute
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`out of this case in the District Court (Docket no. 784), following sustained and lengthy efforts.
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`Thereafter, the SAM law firm had little interest in following the multitude of activities in the District
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`Court. Communications with Amazon’s counsel completely ceased then, save for limited activities
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`before the Federal Circuit. On November 9, 2022 counsel at Lewis Roca (“LR”) sent to SAM a copy
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`of Docket no. 799, “Order Following November 9, 2022 Discovery Hearing” and SAM learned that
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`the Court had indirectly placed on SAM certain obligations viz-a-viz its former client PersonalWeb
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`and its obligations to Amazon (a very short time prior LR had asked SAM for a full copy of SAM’s
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`PersonalWeb file and preliminary efforts had commenced).
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`Beginning soon after receipt of that November 9 Order, SAM partner Michael Sherman, joined
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`by two paralegals in the SAM office, practically “dropped everything” to attempt as best as it was able
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`to both understand the scope of what it would need to turn over to LR, and to collect documents for
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`transmission, and began interacting with LR on a court filing it made on November 14. Mr. Sherman
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`was joined by SAM partner Jeffrey Gersh in these efforts, and the four SAM professionals—aided by
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`SAM’s IT department and aided by an electronic database platform (EverLaw) acquired specifically
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`for this project—expended an enormous amount of time prior to the Thanksgiving Holiday, and on
`November 23 transmitted to LR, both SAM’s search protocol and 20,204 documents (via link),
`totaling approximately 3.6 GB of data.
`SAM’s efforts in searching for and furnishing to LR the documents/information on November
`23 was, to a degree, impeded by “direction” and questions that were being passed along ostensibly
`from Amazon’s counsel, as reflecting “Amazon wants X” or “Amazon want to know Y”. Very early
`on SAM had to grapple with 206 Amazon search terms that had been forwarded to its office from LR,
`containing search terms such as “crypto” or “dollar” or “ledger” or “money” with the suggestion from
`Amazon being relayed to SAM via LR, that SAM ought to search its e-mail server for those terms—
`because apparently, that is what PersonalWeb had agreed to. [As SAM quickly realized, for a law firm
`like SAM that represents large numbers of clients in diverse business fields, search terms like those
`would be ridiculous and essentially result in the turn-over of the SAM law firm entire e-mail server.]
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`STATEMENT OF SAM
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`CASE NO: 5:18-md-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 824 Filed 12/09/22 Page 3 of 5
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`Later, during the week of November 14 SAM communicated with LR counsel about a new request
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`that Amazon had of SAM, i.e., that SAM “prioritize” its furnishing of documents to LR—the problem
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`with that approach being that SAM professionals were already well underway with SAM’s search
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`using a search protocol SAM had formulated.
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`In the late afternoon on November 23, 2022, SAM sent to LR a link to those over 20,000
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`documents along with a detailed e-mail (which, due to space limitations cannot be quoted) that
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`referenced SAM’s continuing efforts, noted that this furnishing would likely be supplemented, and
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`identified the search protocol that SAM followed, among other things. SAM is planning on furnishing
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`certain additional documents to LR, and has begun to look at other categories of documents that
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`Amazon claims are priority. SAM expects that another furnishing of documents will be made to LR
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`before the Christmas Holiday and is not now prepared to share all of its internal mental
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`impressions/internal work-product regarding how it is going about the tasks (but will, like before,
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`share its search protocol, when it transmits its next furnishing of documents to LR).
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`SAM now wishes to flag four other issues—which due to space limitations cannot now be fully
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`developed—that may arise during the December 14 hearing:
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`1.
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`SAM has not waived any of its work product. True, PersonalWeb has waived all shared work
`product that SAM (and other counsel) had provided it, and SAM believes that it has furnished
`to LR all such shared work product (searching continues). SAM believes it undisputed that
`the “attorney is the intended exclusive holder of the work-product privilege and that it may be
`asserted even against his client in the context of litigation where adversaries of the client seek
`discovery for use against the client.” Lasky, Haas, Cohler & Munter v. Superior Court (1985)
`172 Cal.App.3d 264, 279. In addition, SAM has never been subpoenaed and there are no Court
`orders directed to it.
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`2.
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`SAM has not furnished PersonalWeb, and has no intention of furnishing PersonalWeb, its
`uncommunicated work product. “[T]he attorney is the holder of the work product privilege
`for the purpose of adversarial discovery during litigation” and “[d]ocuments within the scope
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`STATEMENT OF SAM
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`CASE NO: 5:18-md-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 824 Filed 12/09/22 Page 4 of 5
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`of the privilege need not be disclosed, even to the client.”) Eddy v. Fields (2004) 121
`Cal.App.4th 1543, 1549. Ethics opinions of various state bar organizations are generally in
`accord, and in In re EchoStar Communications Corp. (Fed. Cir. 2006) 448 F.3d 1294, 1303)
`the Federal Circuit ruled that “Under Rule 26(b)(3), this so-called ‘opinion’ work product
`deserves the highest protection from disclosure.” (Id.) Attorney work product is not
`discoverable because doing so would “eviscerate the legitimate policies of the work-product
`doctrine and chill the principles of our adversary system as a whole on account of the
`possibility that, from time to time, there may be occurrences of ethical transgressions.” (Id. at
`1305.)
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`Among SAM’s numerous clients over the years, are included Europlay Capital Advisors,
`Brilliant Digital Entertainment, Monto Holdings, Claria Innovations, Topodia Ltd., and (when
`applicable) their respective affiliates, subsidiaries and controlled portfolio companies. In
`performing legal services for those clients, SAM’s services varied; on rare occasions, such
`services, in instances, intersected with PersonalWeb. PersonalWeb was formed over a decade
`ago. In devising SAM’s search criteria for furnishing of documents to LR, SAM was
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`influenced by, among things, (1) the fact that the Court order regarding waiver of privilege is
`directed to PersonalWeb and no one else, and (2) obligations as California licensed attorneys
`in complying with California Business & Professions Code section 6068(e)(1) which makes it
`the duty of every California attorney “to maintain inviolate the confidence, and at every peril
`to himself or herself to preserve the secrets, of his or her client.”
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`Amazon and its counsel are conflating SAM’s zealous advocacy on behalf of its present and
`former client PersonalWeb—in an instance where the District Court had commended the firm’s
`ethics in its handling of the underyling litigation—and what appears to be their animus directed
`towards third parties. The leveling of “demands,” curt and unprofessional acts, ad hominins
`and hostility towards SAM are unwarranted and unprofessional; they do nothing to advance
`the cause of PersonalWeb’s compliance.
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`STATEMENT OF SAM
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`CASE NO: 5:18-md-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 824 Filed 12/09/22 Page 5 of 5
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`STUBBS, ALDERTON & MARKILES, LLP
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`By: /s/ Michael A. Sherman
`Michael A. Sherman
`Jeffrey F. Gersh
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`Attorneys for Stubbs Alderton & Markiles, LLP
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`Respectfully submitted,
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`Dated: December 9, 2022
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`STATEMENT OF SAM
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`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`CASE NO.: 5:18-cv-05619-BLF
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