Case 5:18-md-02834-BLF Document 857 Filed 03/13/23 Page 1 of 8
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`Robert M. Charles, Jr. (admitted pro hac vice)
`RCharles@lewisroca.com
`Patrick Emerson McCormick (CA Bar #307298)
`PMcCormick@lewisroca.com
`LEWIS ROCA ROTHGERBER CHRISTIE LLP
`One South Church Avenue, Suite 2000
`Tucson, AZ 85701-1611
`Tel:
`520.622.2090
`Fax: 520.622.3088
`Attorneys for PersonalWeb Technologies, LLC
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`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`CASE NO. 5:18-md-02834-BLF
`Case No. 5:18-cv-0767-BLF
`Case No. 5:18-cv-05619-BLF
`PERSONALWEB TECHNOLOGIES,
`LLC’S RESPONSE TO
`AMAZON.COM, INC.’S MOTION FOR
`RELIEF FROM PROTECTIVE ORDER
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`IN RE PERSONALWEB TECHNOLOGIES,
`LLC, ET., AL., PATENT LITIGATION,
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`Plaintiffs,
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`AMAZON.COM, INC. and AMAZON WEB
`SERVICE, INC.,
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`v.
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`PERSONALWEB TECHNOLOGIES, LLC, et
`al.,
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`PERSONAL WEB TECHNOLOGIES, LLC, et
`al.,
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`v.
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`TWITCH INTERACTIVE, INC.,
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`Defendant.
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`Defendants.
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`Plaintiffs
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`Tucson, AZ 85701-1611
`One South Church Avenue, Suite 2000
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`I.
`INTRODUCTION
`Amazon.com, Inc.’s Administrative Motion for Relief from Protective Order (the
`“Administrative Motion”)—so that Amazon can use PersonalWeb’s documents produced in this
`Action in the state court Receivership Action—is an abuse of L.R. Civ. 7-11 and attempts to have
`this Court manage a state court’s discovery procedure. The Administrative Motion must be denied.
`Per Local Rule of Civil Procedure 7-11, administrative motions are reserved for motions not
`governed by Federal Rules or standing orders. However, protective orders are explicitly governed
`by the Federal Rules (namely, FED. R. CIV. PROC. 5.2 and 26) and this Court’s Standing Order, ¶ 8.
`Moreover, the modified use of PersonalWeb’s documents Amazon now seeks would result in the
`disclosure of these documents to the Secured Creditors in the Receivership Action, thus modifying
`their confidentiality designations. This challenge to the confidentiality designations must follow
`the procedure provided in Dkt. 472 (the “PO”), § 6.
`Amazon’s Administrative Motion must also be denied because it is attempting to use this
`Court as an end-run around the state court’s inherent power to control the proceedings in the
`Receivership Action, including a specific exemption to the stay of discovery while an anti-SLAPP
`motion is pending if the state court so chooses. Relief from the PO would have this Court, instead
`of the state court, determine what objections, if any, have been waived in the Receivership Action.
`Amazon’s time crunch is of its own making, and it has taken procedural shortcuts as a result.
`Granting Amazon’s Administrative Motion would deprive PersonalWeb of its ability to properly
`respond to the numerous issues raised in the Administrative Motion and reward Amazon for its
`procedural gamesmanship. The Administrative Motion must be denied.
`II.
`PROCEDURALLY IMPROPER
`The Administrative Motion must be denied, as it should have been brought as a regularly-
`noticed and briefed motion. Amazon seeks to shoehorn its substantive request into an
`“administrative” motion to work around its self-created shortened timeframe and ignores the
`provisions of the PO it seeks to modify.
`A. Amazon seeks relief from the entire PO
`Despite listing specific documents in Mr. Lavin’s declaration, Amazon’s Administrative
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`Case 5:18-md-02834-BLF Document 857 Filed 03/13/23 Page 3 of 8
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`Motion seeks relief from the entire PO, raising other issues with respect to PersonalWeb’s produced
`documents that it is unable to address in this short time frame and page limit. This would result in
`relief from the PO of over 1.3 million pages of documents, much of which was produced
`unreviewed per the Parties’ Stipulation and includes almost 400,000 pages of communications with
`PersonalWeb’s counsel. (See Dkt. 792.)
`B. Amazon’s time crunch is of its own making
`Amazon never met and conferred with PersonalWeb as to specific documents it wanted to use
`in the Receivership Action. Amazon also waited to file the Administrative Motion three weeks after
`PersonalWeb’s refusal to stipulate to a blanket release of all PersonalWeb documents produced in
`this Action for use in the Receivership Action.
`Amazon telephonically met and conferred with PersonalWeb regarding a stipulation to modify
`the PO on Monday, February 13, 2023, but provided no substantive argument as to why relief
`should be granted. PersonalWeb confirmed in writing on February 15, 2023, that it would not
`stipulate to a blanket modification permitting use of PersonalWeb documents production in this
`Action for use in the Receivership Action. Rather than coordinate a joint statement per this Court’s
`Standing Order, ¶ 8, Amazon waited three weeks to file this “administrative” motion.
`Amazon now cries foul and seeks emergency relief because its opposition to the Secured
`Creditors’ Anti-SLAPP Motion is due in one week. Had Amazon moved in a timely fashion and
`via the proper methods, PersonalWeb and this Court would have had the time and opportunity to
`properly address Amazon’s request. Now, however, Amazon cannot be rewarded for its delay.
`C. Amazon’s Administrative Motion is not “administrative”
`Amazon attempts to cloak a substantive motion to modify PersonalWeb’s protections under
`this Court’s Order as an “administrative” proceeding. However, Amazon’s request is governed by
`the Federal Rules and this Court’s Standing Order.
`Administrative motions per L.R. 7-11 are to be used for “miscellaneous administrative
`matters, not otherwise governed by a federal statute, Federal Rule, local rule, or standing order[,
`such as] motions to exceed otherwise applicable page limitations or motions to file documents
`under seal, for example” (emphasis added).
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`One South Church Avenue, Suite 2000
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`Case 5:18-md-02834-BLF Document 857 Filed 03/13/23 Page 4 of 8
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`Here, protective orders are governed by both the Federal Rules and this Court’s standing order.
`Two rules in the Federal Rules of Civil Procedure govern protective orders: FED. R. CIV. P. 5.2(e)
`and 26(b)(2), (c). The procedures in this Court’s Standing Order, ¶¶ 7-8, further govern protective
`orders and their disputes. Per this Court’s standing order, ¶ 8, the Parties were to meet and confer
`in person or by phone,1 then file a joint statement not to exceed ten pages and a joint chart setting
`forth the dispute as to the specific requests. Amazon’s request in its Administrative Motion is a
`substantive request. Entry and modification of protective orders are subject to standard FED. R. CIV.
`P. 7 motions or the Court’s Standing Order, ¶ 8.
`To further illustrate, every case Amazon cites in support of its Administrative Motion is a
`court opinion resulting from a standard, fully-briefed motion. Amazon has filed this expedited,
`“administrative” motion because it waited too long and now faces an imminent deadline.
`PersonalWeb should have the time and page space to oppose Amazon’s request per L.R. Civ. 7-3.
`D. Amazon’s Motion is a challenge to PersonalWeb’s confidentiality designations
`Amazon would have certain documents identified in Mr. Lavin’s declaration (PWEB-PJ-
`1379; PWEB-PJ-1741; PWEB-PJ-1919; PWEB-PRIV-00008525; and PWEB-SAM699911), as
`well as all documents PersonalWeb produced after judgment, stripped of their “Confidential” or
`“Highly Confidential” designations.
`The Administrative Motion was the first time Amazon identified any specific PersonalWeb
`documents that it intended to use in the Receivership Action. These documents contain confidential
`information (and at least two of them contain attorney-client privilege), and none of these
`documents were produced to the Secured Creditors in this lawsuit. Amazon’s attempt to utilize
`these documents and disclose them to the Secured Creditors is, in effect, a challenge to their
`confidentiality designation.
`The PO has a procedure for challenging the confidentiality designations of documents, and
`that procedure is not an administrative hearing that only allows PersonalWeb five pages and four
`days to respond. Rather, per PO §§ 6.2-6.3, the Parties are to meet and confer and, if they cannot
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`1 In the Parties’ February 13, 2023 telephonic meet and confer, Amazon’s did not provide any
`specificity as to which documents it sought to use in the Receivership Action, nor did it provide
`any authority under which it relief from the PO was warranted.
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`reach an agreement, PersonalWeb has 21 days from Amazon raising the challenge to bring a motion
`to retain confidentiality. (See Dkt. 427, 8-9.) PersonalWeb should have the opportunity to go
`through this procedure, and Amazon should not be able to shirk these procedural requirements
`simply because it waited this long to raise these specific documents with PersonalWeb.
`III. SUBSTANTIVELY INCORRECT
`Not only is Amazon’s Administrative Motion procedurally improper, it is also substantively
`incorrect. Amazon is asking this Court to encroach on the state court’s ability to govern the
`discovery timetable of the Receivership Action and asking this Court to effectively determine, for
`the state court, whether certain objections have been waived in that proceeding.
`A. This Action and the Receivership Action are not “collateral”
`Despite being named in the caption of the Receivership Action, PersonalWeb is effectively a
`third party to the Receivership Action. The Receiver, a distinct legal entity from PersonalWeb, is
`the party in the Receivership Action. Furthermore, no party has propounded discovery on
`PersonalWeb in the Receivership Action.
`Thus, Amazon’s claim that this Action and the Receivership Action “involve[] identical
`parties” misses the point. PersonalWeb is not a party to the Receivership Action (and the Receiver
`is in no way involved in this Action), and thus these are not collateral actions in which the
`documents should simply transfer over. This distinction is critical. In three of the cases cited by
`Amazon, the moving party sought to use the documents of the opposing party in another lawsuit in
`which the opposing party was a party. See Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122,
`1128-29 (9th Cir. 2003) (opposing party, State Farm, was party to original action and a party to the
`collateral action in which the moving party sought to use those previously-produced documents);
`Beckman Industries, Inc. v. International Ins. Co., 966 F.2d 470, 471 (9th Cir. 1992) (opposing
`party, International Ins. Co., was party to the original action in which depositions were taken and a
`party to the collateral action in which the moving party sought to use those deposition transcripts);
`CBS Interactive, Inc. v. Etilize, Inc., 257 F.R.D. 195, 200 (N.D. Cal. 2009) (opposing party, Etilize,
`Inc., was a party in the original action and a party to the collateral action in which the moving party
`sought to use those previously-produced documents). In the last case Amazon cites, the party
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`moving to modify the protective order was the witness who originally produced the documents in
`the earlier action. Olympic Refining Co. v. Carter, 332 F.2d 260, 262 (9th Cir. 1964).
`Here, PersonalWeb is not a party to the Receivership Action or the Secured Creditors’ Anti-
`SLAPP Motion, and the Receiver is not a party to this Action. PersonalWeb has no ability to object
`to or intervene in the use of its confidential and privileged documents in the Receivership Action
`before Amazon’s discloses them to the state court.
`Moreover, Amazon seeks relief from the entire PO, which would significantly alter
`PersonalWeb’s ability to claw back inadvertently produced, privileged documents as considered in
`the Parties’ stipulation and this Court’s Order (see Dkt. 792, 5:7-15), as PersonalWeb would be left
`to litigate before the state court whether certain documents of the 1.3 million pages produced were
`responsive to discovery demands propounded in this Action.
`B. Amazon asks this Court to manage the Receivership Action’s discovery process
`This Court should not dictate the discovery process for the Receivership Action, particularly
`while discovery is stayed per Cal. Civ. Proc. § 425.16(g). The state court has the ability to manage
`its own discovery process.
`The state court’s hands are not tied with respect to discovery; it has the ability to order
`“‘specified discovery be conducted notwithstanding’ the motion’s pendency.” Equilon Enterprises
`v. Consumer Cause, Inc., 29 Cal. 4th 53, 66 (2002), quoting Cal. Civ. Proc. § 425.16(g). If the state
`court feels that discovery is necessary to rule on the merits of the Secured Creditors’ Anti-SLAPP
`Motion, then it can give Amazon that leave. It is not necessary, or appropriate, for this Court to
`effectively permit discovery in the Receivership Action while discovery is explicitly stayed, as the
`state court has the tools and authority to manage its own discovery timing. See Aljabban v. Fontana
`Indoor Swap Meet, Inc., 54 Cal. App. 5th 482, 512 (2020) (“A court has inherent power to exercise
`reasonable control over all proceedings connected with the litigation before it”).
`C. Amazon cannot use these documents in the Receivership Action
`PersonalWeb has not waived any objections, including attorney-client privilege, in the
`Receivership Action. Amazon is specifically seeking the use of privilege documents, including all
`documents bates-stamped PWEB-PRIV and PWEB-SAM.
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`D. These documents have not been produced to Secured Creditors
`As discussed above, use in Receivership Action, an action in which PersonalWeb is not a
`party, would expand access to these 1.3 million pages to the Secured Creditors.
`IV. CONCLUSION
`For the numerous procedural and substantive issues discussed above, the Court should deny
`Amazon’s Administrative Motion for Relief from the Protective Order.
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`Dated this 13th day of March, 2023.
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`LEWIS ROCA ROTHGERBER CHRISTIE LLP
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`By: /s/ Patrick Emerson McCormick
`Robert M. Charles, Jr.
`Patrick Emerson McCormick
`Attorneys for PersonalWeb Technologies, LLC
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`Case 5:18-md-02834-BLF Document 857 Filed 03/13/23 Page 8 of 8
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`PROOF OF SERVICE
`I, Daniela Rodriguez, declare:
`I am a citizen of the United States and employed in Pima County, Arizona. I am over the
`age of eighteen years and not a party to the within-entitled action. My business address is One
`South Church Avenue, Suite 2000, Tucson, Arizona 85701-1611.
`On March 13, 2023, I electronically transmitted the following document:
`PERSONALWEB TECHNOLOGIES, LLC’S RESPONSE TO
`AMAZON.COM, INC.’S MOTION FOR RELIEF FROM
`PROTECTIVE ORDER
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`to the Clerk’s office using the CM/ECF System for filing and served through the Notice of
`Electronic Filing automatically generated by the Court’s facilities.
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`I declare under penalty of perjury under the laws of the State of Arizona that the above is
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`true and correct.
`Executed on March 13, 2023, at Tucson, Arizona.
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`/s/ Daniela Rodriguez
`Daniela Rodriguez
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