Case 5:18-md-02834-BLF Document 845 Filed 02/02/23 Page 1 of 2
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`BY ELECTRONIC FILING
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` Hon. Susan van Keulen
`United State District Court for the
` Northern District of California
`San Jose Courthouse, Courtroom 6 – 4th Floor
`280 South 1st Street, San Jose, CA 95113
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`Todd R. Gregorian 
`tgregorian@fenwick.com  |  415.875.2402 
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`February 2, 2023
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`Re:
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`In Re: PersonalWeb Technologies, LLC et al, No. 5:18-md-02834-BLF
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`Dear Judge van Keulen
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`I write on behalf of Amazon.com, Inc., Amazon Web Services, Inc., and Twitch Interactive,
`Inc. (“Amazon”) in response to the letter submitted by Stubbs, Alderton & Markiles, LLP (“SAM”)
`(Dkt. No. 843).
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`SAM’s letter states that it has refused to produce 18,000 documents that are responsive to
`the Court’s discovery orders. Each of the three stated justifications (see Dkt. 843 at 2) for
`withholding these reams of documents is problematic and the sheer volume of materials withheld
`raises serious questions about SAM’s compliance.
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`First, SAM states that it is withholding 2,500 documents that it has designated as not the
`property of PersonalWeb or belonging to other firm clients. The problem here is that these are
`admittedly documents responsive to the post-judgment discovery and the Court’s orders—i.e., they
`concern PersonalWeb’s assets, transfers, agreements, etc. SAM has not identified any of the other
`clients who it claims “own” these documents about PersonalWeb, but the likely entities about
`whom SAM would make such a claim are closely-related shell entities—like Brilliant Digital
`Entertainment, Inc. (“BDE”), Claria Innovations, LLC (“Claria”), and Europlay Capital Advisors
`LLC (“ECA”), among others—who share overlapping membership with PersonalWeb and SAM
`itself. For example, Mr. Bermeister is the chairman of both PersonalWeb and BDE. Amazon is
`seriously concerned that SAM is playing a shell game—e.g., that it is taking communications to
`Mr. Bermeister about PersonalWeb’s assets, transfers, agreements, etc., and classifying them post-
`hoc as advice provided to BDE.
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`Second, SAM states that it is withholding 9,700 documents that it has determined are “work
`product not shared with PersonalWeb’s directors, officers or employees.” PersonalWeb’s waiver
`does not encompass its counsel’s uncommunicated work product. See Staley v. Gilead Sci., Inc.,
`No. 19-cv-02573, 2022 WL 1836820, at *6 (N.D. Cal. June 3, 2022) (slip op.) (“Teva is not
`required to produce protected work product from outside counsel that was not communicated to
`Teva and does not reference any communication with Teva.”) But here, SAM has not represented
`to the Court that these 9,700 documents are in fact work product that was not shared with the client
`or a third party. Instead, it provided the Court with an artfully worded response that potentially
`carves out individuals, for example Mr. Markiles of Claria and ECA, whose receipt would place
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`Case 5:18-md-02834-BLF Document 845 Filed 02/02/23 Page 2 of 2
` Hon. Susan van Keulen
`February 2, 2023
`Page 2
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`the documents within the scope of the waiver. See Hartford Fire Ins. Co. v. Garvey, 109 F.R.D.
`323, 328 (N.D. Cal. 1985).
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`Third, SAM is withholding 5,800 documents that are supposedly the product of ECA, an
`entity run by SAM named partner Murray Markiles, providing outside litigation consulting
`services to SAM itself about PersonalWeb and its assets. In SAM’s letter, Mr. Gersh provides no
`information about these supposed consulting services other than that they are “confidential,” no
`information about who at ECA (apparently a shell litigation investment vehicle) provided them,
`and no evidence that they were secured for SAM independently rather than on behalf of
`PersonalWeb and its chairman, principal, and investor Mr. Bermeister. Indeed, Mr. Gersh does
`not commit to any hard facts whatsoever, instead reporting that “we understand” that ECA
`provided such services “over the years.” Without more information, the withholding of thousands
`upon thousands of documents on this ground reeks of post-hoc tinkering with the facts to avoid
`production.
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`Amazon therefore respectfully requests that the Court order SAM to log the documents
`that it is withholding to clarify the above issues. While that does impose some additional
`temporary burden on SAM, that burden arises from SAM’s own creation of a constellation of shell
`entities to serve the same principals and shield them and PersonalWeb from ever having to pay an
`adverse judgment.
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`Finally, while SAM asserts that its obligations to PersonalWeb and the Court should cease,
`the Court nevertheless has continuing jurisdiction over SAM as PersonalWeb’s former counsel of
`record in this litigation. See Optrics Inc. v. Barracuda Networks Inc., No. 17-cv-04977, 2020 WL
`1815690, at *3 (N.D. Cal. Feb. 28, 2020) (“The Court [] will retain ancillary jurisdiction over the
`movants for purposes of the motion for sanctions.”). The Court has also expressly suggested
`(without taking a position) that Amazon may seek sanctions against SAM in addition to
`PersonalWeb. Dkt. No. 725 (1/20/22 Hearing Tr.) at 10:6-8 (Court to Mr. Sherman (SAM):
`“Amazon can ask for sanctions against your firm and PersonalWeb, or just PersonalWeb, that’s up
`to them to frame the request for relief.”); see also Dkt. No. 742-1, ¶ 15. Moreover, in permitting
`the withdrawal of SAM as counsel for PersonalWeb, the Court specifically stated that Amazon’s
`rights with respect to pending discovery disputes would not be affected. Dkt. No. 784 at 2
`(“WHEREAS, the Parties have pending discovery disputes…and whether the Court should order
`any relief directly against Stubbs Alderton Markiles, neither of which will be affected by the
`current stipulation (i.e., PersonalWeb and Amazon will not be deemed to have waived any right to
`relief by entering into this Stipulation)”).
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`Sincerely,
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`FENWICK & WEST LLP
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`/s/ Todd R. Gregorian
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`Todd R. Gregorian
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`TRG:jat
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