Case 5:18-md-02834-BLF Document 856 Filed 03/13/23 Page 1 of 8
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`Thomas M. Robins III (State Bar No. 054423)
`trobins@frandzel.com
`Michael G. Fletcher (State Bar No. 070849)
`mfletcher@frandzel.com
`Bruce D. Poltrock (State Bar No. 162448)
`bpoltrock@frandzel.com
`FRANDZEL ROBINS BLOOM & CSATO, L.C.
`1000 Wilshire Boulevard, Nineteenth Floor
`Los Angeles, California 90017-2427
`Telephone: (323) 852-1000
`Facsimile: (323) 651-2577
`
`Attorneys for Third Parties
`BRILLIANT DIGITAL ENTERTAINMENT, INC.;
`MONTO HOLDINGS PTY. LTD.
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`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
`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,
`
`v.
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`TWITCH INTERACTIVE, INC.,
`
`Defendant.
`
`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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`MEMORANDUM OF THIRD PARTIES
`BRILLIANT DIGITAL
`ENTERTAINMENT. INC. AND MONTO
`HOLDINGS PTY LTD. IN OPPOSITION
`TO AMAZON'S ADMINISTRATIVE
`MOTION FOR RELIEF FROM
`PROTECTIVE ORDER [Dkt. 854]
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`4861825v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`MEMORANDUM OF THIRD PARTIES BDE AND MONTO HOLDINGS IN OPPOSITION TO
`AMAZON'S ADMINISTRATIVE MOTION FOR RELIEF FROM PROTECTIVE ORDER [Dkt. 854]
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`(323) 852‐1000 
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`LOS ANGELES, CALIFORNIA 90017‐2427 
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`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
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`

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`Case 5:18-md-02834-BLF Document 856 Filed 03/13/23 Page 2 of 8
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`Third Parties, Brilliant Digital Entertainment, Inc. ("BDE") and Monto Holdings Pty Ltd.
`("Monto") (both of whom are "Secured Lenders" to PersonalWeb ("PW") hereby oppose Amazon's
`"administrative" motion (“Motion”) under Civil Local Rule 7-11 for relief from the protective order
`now in place with respect to the production of documents by Third Parties.
`A.
`Overview
`Over five weeks after (1) stipulating to the April 4, 2023 hearing date on Secured Lenders’
`anti-SLAPP Motions in the Receivership Action with its March 21, 2023 opposition deadline and
`(2) the April 7, 2023 failed meet and confer session on the subject, Amazon files this improper L.R.
`7-11 “administrative motion” seeking relief from the protective order as to documents produced in
`the PW post-judgment proceedings for the limited purpose of using them to oppose these motions.
`The vast majority of these document have nothing whatsoever to do with the issues Amazon needs
`to address to oppose the anti-SLAPP motions. The Motion should be denied because it does not
`meet the burden imposed -- and seeks relief prohibited -- by the very authority Amazon relies upon.
`The purpose of the anti-SLAPP motions was to expose Amazon’s claims of supposed
`wrongdoing by the Secured Lenders in obtaining a receiver over PW’s assets as utter nonsense.
`After all of the handwringing about the appointment of a receiver over PW and its assets by Amazon
`in every single filing it has made in this Court, these motions will require Amazon to, in the
`vernacular, “put up or shut up.” Simply put, receivers are officers and agents of the appointing
`court. Contrary to Amazon’s suggestion that the appointment of a receiver in an American Court is
`akin to stashing the assets of the receivership entity off shore in the Cook Islands, those assets are
`in the control of the appointing court and not a penny can be disbursed to any creditor without notice
`to all creditors and that Court’s order. What Amazon is really complaining about is that the
`imposition of the receiver and associated injunction put the proverbial monkey wrench in its plan to
`levy execution on the IP assets of PW so that it could obtain ownership and then fire the lawyers
`representing PW on its then pending petition for certiorari to the Supreme Court as to the judgment
`and counsel representing PW to on appeal of the attorney fee award and dismiss the appeal before
`it is heard by the Federal Circuit. Secured Lenders had a Constitutional right to petition the State
`Court for relief to prevent these results from happening and not one of the documents that is sought
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`2
`4861825v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`MEMORANDUM OF THIRD PARTIES BDE AND MONTO HOLDINGS IN OPPOSITION TO
`AMAZON'S ADMINISTRATIVE MOTION FOR RELIEF FROM PROTECTIVE ORDER [Dkt. 854]
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`(323) 852‐1000 
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`LOS ANGELES, CALIFORNIA 90017‐2427 
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`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
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`

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`Case 5:18-md-02834-BLF Document 856 Filed 03/13/23 Page 3 of 8
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`to be released by this Motion even remotely addresses that issue.
`B.
`Requirements for Relief from a Protective Order
`Foltz v. State Farm Auto Insurance Co., 331 F.3d 1122 (9th Cir. 2003), the principal
`authority cited by Amazon, holds: "[A] court should not grant a collateral litigant's request for …
`modification [of an existing protective order] automatically." (Id.. 1132.) "As an initial matter, the
`collateral litigant [here, Amazon] must demonstrate the relevance of the protected discovery to the
`collateral proceedings [here, the anti-SLAPP motions in the Receivership Action in state court] and
`its general discoverability therein." (Id.,) "Such relevance hinges on the degree of overlap in facts,
`parties, and issues between the suit covered by the protective order and the collateral proceedings."
`(Id.,) As Foltz explained, "[r]equiring a showing of relevance prevents collateral litigants from
`gaining access to discovery materials merely to subvert limitations on discovery in another
`proceeding." (Id.) See United Nuclear Corp v Cranford Ins. Co., 905 F.2d 1424, 1428 (10th Cir.
`1990): "[A] collateral litigant has no right to obtain discovery materials that are privileged or
`otherwise immune from eventual involuntary discovery in the collateral litigation." At bottom,
`"…the court that entered the protective order should satisfy itself that the protective discovery is
`sufficiently relevant to the collateral litigation that a substantial amount of duplicative discovery
`would be avoided by modifying that protective order." (Foltz, 332 F.3d at 1132.)
`However, the court issuing the order does not decide whether the collateral litigant will
`ultimately obtain the discovery materials. Rather, "…the only issue it determines is whether the
`protective order will bar the collateral litigants from gaining access to discovery already conducted."
`(Id., al. 1232-33.) "[O]nce the district court has modified its protective order, it must refrain from
`embroiling itself in the specific discovery disputes applicable only to the collateral suits." (Id., at
`1133.) "The disputes over the ultimate discoverability of specific materials covered by the
`protective order must be resolved by the collateral courts." (Id.,)
`C.
`Amazon Seeks an Order this Court May Not Make
`Directly contrary to Foltz, Amazon expressly asks this Court to not only modify the
`protective order, but to usurp the role of the collateral court by specifically ordering that Amazon
`may use the documents at issue to oppose the anti-SLAPP motions. See Dkt. 854-6, p.2:4-6. The
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`3
`4861825v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`MEMORANDUM OF THIRD PARTIES BDE AND MONTO HOLDINGS IN OPPOSITION TO
`AMAZON'S ADMINISTRATIVE MOTION FOR RELIEF FROM PROTECTIVE ORDER [Dkt. 854]
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`(323) 852‐1000 
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`LOS ANGELES, CALIFORNIA 90017‐2427 
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`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
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`

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`Case 5:18-md-02834-BLF Document 856 Filed 03/13/23 Page 4 of 8
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`court should reject Amazon’s request for such an order.
`D.
`Amazon Fails to Establish Relevancy or Discoverability
`Amazon has failed to demonstrate relevance of the documents to the material issues at play
`in the anti-SLAPP motions. The issues before this Court that led it to deem that the documents were
`discoverable were the whereabouts of PW assets and Amazon's potential alter-ego claims. (Dkt.
`738, at 1-2.) Even a cursory review of Amazon's complaint-in-intervention shows that there are no
`allegations regarding the whereabouts of PW assets. Nor are there any alter ego claims alleged
`against any of the Secured Lenders. Amazon’s only claim alleged against the Secured Lenders is
`to have their secured loans to PW subordinated to Amazon's attorney fee judgment based on the
`alleged sins of the Secured Lenders and PW in instituting and prosecuting the Receivership Action.1
`See Lavin Decl., Exh. 2, ¶¶ 16-17, 20-24. By definition, this conduct had to have occurred
`commencing in April 2021 when the Receivership Action was filed.2
`Moreover, Amazon is not seeking a blanket order modifying the protective order for all
`purposes, but only for the very limited purpose of using such documents to oppose the pending anti-
`SLAPP motions. Accordingly, the correct analysis for relevancy is whether the documents
`enumerated in Amazon's motion have any relevance to the issues raised in the anti-SLAPP motions,
`both of which are Exhibits 3 and 4 to Amazon's Motion.
`As stated in BDE's motion, Dkt. 854-5, pp. 14-15, the first prong of Secured Lender’s anti-
`SLAPP motion requires the moving defendant to establish that the challenged allegations or claims
`arise from protected activity in which the defendant has engaged; i.e., the activity (1) falls within
`one of the four categories listed in Cal. Code Civ. Pro. § 425.16(e); and (2) forms the factual basis
`of a least one element of the claim. Assuming the Secured Lenders establish the first prong, the
`court then considers the second prong under which Amazon has the burden to show that it has (1)
`stated a legally sufficient claim and (2) made a prima facie factual showing by admissible evidence
`
`1 Contrary to the suggestion in the opening paragraph of Amazon’s Motion, there is no claim to
`relegate Secured Lenders’ debt to equity.
`2 Paragraphs 10, 19 of the complaint-in-intervention allege that PW is “‘thwarting Amazon’s
`legitimate interest to collect its judgment’” and engaging in “‘chameleon-like efforts . . .,’”
`referring to and quoting from Exh. D to the complaint-in-intervention, (District Court’s Order of
`June 25, 2021) pp. 3-4. These statements in Exh. D, clearly reference actions claimed by Amazon
`to have been taken after the Amazon Judgment was entered March 2, 2021.
`4
`4861825v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`MEMORANDUM OF THIRD PARTIES BDE AND MONTO HOLDINGS IN OPPOSITION TO
`AMAZON'S ADMINISTRATIVE MOTION FOR RELIEF FROM PROTECTIVE ORDER [Dkt. 854]
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`(323) 852‐1000 
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`LOS ANGELES, CALIFORNIA 90017‐2427 
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`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
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`

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`Case 5:18-md-02834-BLF Document 856 Filed 03/13/23 Page 5 of 8
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`sufficient to defeat Secured Lenders’ litigation privilege defenses and sustain a favorable judgment.
`Here, the anti-SLAPP motions assert that the petitioning activity consists of the filing of the
`Receivership Action and successfully petitioning the court to appoint a receiver that falls squarely
`within the classes of protected activity in Cal. Code Civ., Pro. § 425.16(e) subd. (1) (any written or
`oral statement or writing made before a judicial proceeding) and subd. (2) (any written or oral
`statement or writing made in connection with an issue under consideration or review by a judicial
`body). None of the documents which Amazon seeks to have released address the issue of whether
`the anti-SLAPP motions seek to strike activity that is within these subdivisions. As to prong 2,
`Amazon’s burden is to establish the merits of the "claim" that arises from the protected activity, i.e.,
`that recognized civil wrongs were committed by the Secured Lenders in filing this action and in
`obtaining appointment of the receiver and, if so, that same are not barred by the absolute litigation
`privileges under state and federal constitutional law. Evidence as to claims that Amazon has not
`pled or claims which do not arise from the challenged protected activity is simply beside the point.
`Thus, Amazon must come forward with evidence that is, by definition, based on what happened in
`connection with the filing of the Receivership Action in April of 2021 (and the precedent demands
`by the Secured Lenders for payment on their respective notes) and what thereafter ensued in
`connection with the appointment of the receiver.
`Amazon purports to satisfy the Foltz relevance requirement by asserting that the documents
`as to which relief is sought, "show that the [Secured Lenders] are the beneficial owners of [PW],
`that they colluded to frustrate the judgment, and that [PW] was purposefully undercapitalized and
`repeatedly seeking last-minute cash infusions from the [Secured Lenders] for its day-to-day
`operations." Motion at 5. However, that BDE, Monto and ECA hold either direct or indirect
`ownership interests in PW has never been a disputed issue in these proceedings and Amazon has no
`need for documents that “evidence” this fact. The only "collusion" alleged in the complaint-in-
`intervention deals with the actions relating to the Receivership and none of the identified BDE,
`MONTO or ECA prefix documents even remotely deal with the Receivership Action. Further there
`are no allegations in the complaint-in-intervention of undercapitalization or repeated needs of cash
`for day-to-day operations.
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`4861825v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`MEMORANDUM OF THIRD PARTIES BDE AND MONTO HOLDINGS IN OPPOSITION TO
`AMAZON'S ADMINISTRATIVE MOTION FOR RELIEF FROM PROTECTIVE ORDER [Dkt. 854]
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`LOS ANGELES, CALIFORNIA 90017‐2427 
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`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
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`Case 5:18-md-02834-BLF Document 856 Filed 03/13/23 Page 6 of 8
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`The Lavin Decl. Dkt. 854-1, lists the specific documents that are the subject of Amazon's
`motion at paragraph 6.a-g. Significantly, with the exception of two documents (BDE- 00005801
`listed in 6.f. and MONTO00001845, in 6.b., neither of which are remotely relevant to the
`Receivership Action (Robins Decl. ¶¶ 2-4)), every document with a prefix of "BDE," "ECA," and
`"MONTO" is dated before the 2018 filing of the actions against Amazon and its customers that are
`the subject of this case. (Id.)3 Just how documents from 2010 – 2017 are relevant to establish a
`prima facie case of wrongdoing or collusion in the Receivership Action filed in April 2021 Amazon
`doesn't say.4
`The Motion Should Be Denied as to Privileged Documents
`E.
`With respect to the PWEB documents, it is clear that many of them have a "PRIV" or "SAM"
`designation, showing that they are otherwise privileged (or emanate from the Stubbs firm and thus
`presumptively should be viewed as potentially privileged). These documents were only produced
`because of this Court's order that PW waived such privileges. However, Amazon cites no authority
`for the proposition that a waiver of privilege in the District Court automatically translates to a waiver
`of privilege for other actions in state court.
`F.
`Conclusion.
`For the foregoing reasons, Amazon’s Motion should be denied.
`
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`3 Not only are the pre-April 2021 documents not relevant to the subject of the anti-SLAPP
`motions, but from the description given in Lavin Decl., ¶ 6, the BDE/MONTO/ECA documents
`relate to financial privacy matters that predate the filing of the action in 2018. Under California
`law, even though not based in the Constitution, corporations have “some right to privacy.” Ameri-
`Medical Corp. v. Workers Comp. Appeals Bd., 42 Cal.App.4th 1268, 1287-88 (1996). Amazon
`nowhere attempts to establish the required “discoverability” of such documents.
`4 Further, Amazon seeks permission to release the protective order as to an August 22, 2019
`transcript of a deposition taken in the underlying action of Kevin Bermeister, the CEO of BDE
`who also acted as the non-executive chairman of PW. This transcript is designated Attorneys Eyes
`Only. It consists of 207 pages of testimony. Amazon does not designate what portions of the
`transcript are supposedly needed to oppose the anti-SLAPP motions or explain what
`Mr. Bermeister could have testified to, in August of 2019, that would at all be relevant to a
`collusion claim based on the filing of the Receivership Action over a year and a half later, all in
`connection with a judgment in favor of Amazon that had not been entered or even the subject of a
`motion for attorney fees at the time he was deposed.
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`4861825v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`MEMORANDUM OF THIRD PARTIES BDE AND MONTO HOLDINGS IN OPPOSITION TO
`AMAZON'S ADMINISTRATIVE MOTION FOR RELIEF FROM PROTECTIVE ORDER [Dkt. 854]
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`(323) 852‐1000 
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`LOS ANGELES, CALIFORNIA 90017‐2427 
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`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
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`Case 5:18-md-02834-BLF Document 856 Filed 03/13/23 Page 7 of 8
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`DATED: March 13, 2023
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`FRANDZEL ROBINS BLOOM & CSATO, L.C.
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`By:
`/s/ THOMAS M. ROBINS III
`THOMAS M. ROBINS III
`Attorneys for Third Parties BRILLIANT
`DIGITAL ENTERTAINMENT, INC.; MONTO
`HOLDINGS PTY. LTD.
`
`7
`4861825v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`MEMORANDUM OF THIRD PARTIES BDE AND MONTO HOLDINGS IN OPPOSITION TO
`AMAZON'S ADMINISTRATIVE MOTION FOR RELIEF FROM PROTECTIVE ORDER [Dkt. 854]
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`(323) 852‐1000 
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`LOS ANGELES, CALIFORNIA 90017‐2427 
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`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
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`

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`Case 5:18-md-02834-BLF Document 856 Filed 03/13/23 Page 8 of 8
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`PROOF OF SERVICE
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`5:18-md-02834-BLF
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`I, the undersigned, declare and certify as follows:
`
`I am over the age of eighteen years, not a party to the within action and employed in the
`County of Los Angeles, State of California. I am employed in the office of Frandzel Robins
`Bloom & Csato, L.C., members of the Bar of the above-entitled Court, and I made the service
`referred to below at their direction. My business address is 1000 Wilshire Boulevard, Nineteenth
`Floor, Los Angeles, CA 90017-2427.
`
`On March 13, 2023, I served true copy(ies) of the MEMORANDUM OF THIRD
`PARTIES BRILLIANT DIGITAL ENTERTAINMENT. INC. AND MONTO HOLDINGS
`PTY LTD. IN OPPOSITION TO AMAZON'S ADMINISTRATIVE MOTION FOR RELIEF
`FROM PROTECTIVE ORDER [Dkt. 854], the original(s) of which is(are) affixed hereto. to
`the party(ies) listed below.
`
`
`TODD R. GREGORIAN
`CHRISTOPHER S. LAVIN
`FENWICK & WEST LLP
`Silicon Valley Center
`801 California Street
`Mountain View, CA 94041
`Tel: 650.988.8500
`Fax: 650.938.5200
`Email: tgregorian@fenwick.com
`Email: clavin@fenwick.com
`
`
`
`MARK HOLSCHER
`MICHAEL SHIPLEY
`KIRKLAND & ELLIS LLP
`555 South Flower Street
`Los Angeles, CA 90071
`Tel: (213) 680-8400
`Email: mark.holscher@kirkland.com
`Email: michael.shipley@kirkland.com
`
`
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`BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed the document(s)
`with the Clerk of the Court by using the CM/ECF system. Participants in the case who are
`registered CM/ECF users will be served by the CM/ECF system. Participants in the case who are
`not registered CM/ECF users will be served by mail or by other means permitted by the court
`rules.
`
`I declare under penalty of perjury under the laws of the State of California and the United
`States of America that the foregoing is true and correct.
`
`Executed on March 13, 2023, at Los Angeles, California.
`
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`
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`Annette Chase
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`
`
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`4861825v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`MEMORANDUM OF THIRD PARTIES BDE AND MONTO HOLDINGS IN OPPOSITION TO
`AMAZON'S ADMINISTRATIVE MOTION FOR RELIEF FROM PROTECTIVE ORDER [Dkt. 854]
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`(323) 852‐1000 
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`LOS ANGELES, CALIFORNIA 90017‐2427 
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`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
`
`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
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