Case 5:18-md-02834-BLF Document 860-11 Filed 03/24/23 Page 1 of 10
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`Case 5:18-md-02834-BLF Document 860-11 Filed 03/24/23 Page 2 of 10
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`From:
`To:
`Cc:
`Subject:
`Date:
`
`Thomas Robins
`Christopher Lavin; Bruce D. Poltrock; Todd Gregorian
`Michael Fletcher; Bryan Patzwald
`RE: Amazon subpoena documents
`Monday, July 25, 2022 6:24:49 PM
`
`** EXTERNAL EMAIL **
`
`Chris, further responses to your points. See below in italics. Let me know if
`you still would like a telephonic meet and confer. I’m generally open this
`week.
`
`Also, can I get an ETA on the Joint Charts. Todd estimated last Thurs or Fri.
`Further, on Saturday I sent an email inquiring about the assertion in the latest
`version of your joint statement that Amazon has already voluntarily narrowed
`the scope and time period of the requests. I would greatly appreciate the
`courtesy of a response. Thanks Tom
`
`Thomas Robins
`FRANDZEL ROBINS BLOOM & CSATO, L.C.
`1000 Wilshire Boulevard, 19th Floor
`Los Angeles, CA 90017-2427
`Direct:
`(323) 658-9703
`Facsimile:
`(323) 651-2577
`E-mail:
`trobins@frandzel.com
`Web:
`www.frandzel.com
`
`
`(cid:51) GO GREEN: Please consider the environment before you print.
`
`This electronic message contains information which may be confidential and privileged and is intended only for the named addressee.
`Unless you are the addressee of this message you may not use, copy or disclose the contents of this message to anyone. If you have
`received this message in error, please delete the message and advise the sender by reply e-mail or by calling (323) 852-1000. Thank
`you.
`
`To ensure compliance with Internal Revenue Service Circular 230, we inform you that any U.S. Federal Tax advice contained in this
`communication is not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal
`Revenue Code or (2) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.
`From: Christopher Lavin <CLavin@fenwick.com>
`Sent: Tuesday, July 19, 2022 3:54 PM
`To: Bruce D. Poltrock <bpoltrock@frandzel.com>; Todd Gregorian <TGregorian@fenwick.com>
`Cc: Thomas Robins <trobins@frandzel.com>; Michael Fletcher <mfletcher@frandzel.com>; Bryan
`Patzwald <bpatzwald@frandzel.com>
`Subject: [EXTERNAL] RE: Amazon subpoena documents
`
`Bruce,
`
`We write to follow-up on Insiders’ privilege log. It contains nearly 50,000 entries and our review
`
`

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`Case 5:18-md-02834-BLF Document 860-11 Filed 03/24/23 Page 3 of 10
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`thus far shows that many entries appear to improperly claim privilege or are missing a substantial
`amount of information to substantiate the claims of privilege. These deficiencies raise serious doubt
`that Insiders provided a sufficient privilege log by the June 27th deadline—even after receiving
`months of extensions to do so. It also seriously begs the questions of whether Insiders have even
`reviewed their privilege log or the logged documents. As I have previously mentioned, we are
`conducting a review of the logged documents themselves. Indeed, given the extent of the issues it
`appears that Insiders are attempting to hide-the-ball in forcing Amazon to review an oversized and
`insufficient privilege log; identify clearly non-privileged and improperly withheld documents; and
`demand they be produced, before Insiders may ultimately produce them. This burden should not
`fall on Amazon; such documents should have been produced already. The overzealousness and
`carelessness with which Insiders appear to have chosen to assert privilege and the insufficiency of
`the privilege log is seriously interfering with Amazon’s right to lawful discovery relevant to seeking to
`enforce the judgment and Insiders must rectify these issues without delay. There are a number of
`reasons for why our clients’ productions are what they are. I assume you want results, not
`explanations, so I won’t go into a debate with you over these assumptions.
`
`The following is a non-exhaustive list of issues with Insiders’ privilege log:
`
`
`1. Improper Claims of Financial Privacy Privileges: Insiders improperly withhold hundreds likely
`even thousands of documents on the claim of “financial privacy privileges.” See, e.g.,
`BDE047414, BDE047613, BDE047615, BDE047992, BDE048012, BDE049733, BDE049736,
`BDE049751, BDE049754, BDE049759, MM005357, MM005430, RD005651, RD006015.
`Indeed, many of these documents appear to be at the heart of Amazon’s attempts at post-
`judgment enforcement. Financial privacy privilege is not a valid basis to withhold documents.
`See Bentkowsky v. Benchmark Recovery, Inc., Civ. A. No. 13-cv-01252-VC (JCS), Dkt. No. 63
`(N.D. Cal. July 10, 2014) (slip op.) (rejecting a party’s claim of a financial privacy privilege and
`redaction of material, and ordering production subject to a protective order). There is a
`protective order entered in this action that will provide sufficient protections to these
`documents. Please confirm you will withdraw your assertion of financial privacy privileges
`and promptly produce all affected documents that are not withheld on the basis of any other
`privilege—each labelled in the file name by your privilege log column “BegControl” (for
`tracking purposes). As I have indicated, we disagree with your assertion that there is no
`recognized financial privacy objection to discovery requests. When you get our revised portion
`of the Joint Statement (I can’t get it to you until you get me Amazon’s responses to the Joint
`Chart) you will see our legal position. That said, we are reviewing our financial privacy
`objections and removing the objection to a large no. of documents which we will start
`producing.
`
`
`
`2. No Entries Involving Insiders (Frandzel Counsel) Have A Sufficient Description Substantiating
`Privilege: None of the hundreds and likely thousands of entries involving your firm (Frandzel)
`have any “Privilege Description” or “Email Subject” rendering the privilege log insufficient and
`we are unable to verify whether privilege is properly asserted. Please produce an amended
`privilege log correcting this issue for all such entries. We believe our privilege log complies
`with Ninth Circuit minimum requirements as stated in In re Grand Jury Investigation, 974 F. 2d
`1068, 1071 (9th Cir. 1992). Counsel’s communications with the client and work product
`
`

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`Case 5:18-md-02834-BLF Document 860-11 Filed 03/24/23 Page 4 of 10
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`developed once the litigation commences are presumptively privileged and need not be
`included on any privilege log. Ryan Inv. Corp v. Pedregal de Cabo San Lucas, 2009 WL 5114077
`(N.D> Cal. 12/18/2009). Here, the FRBC communications Amazon is seeking came during the
`Secured Creditors’ receivership action as to which Amazon has sought (and is still seeking)
`leave to intervene to sue the secured creditors. We had the subject lines omitted from the
`privilege log because under these authorities we are not required to include that field.
`However, as a compromise we will redo the FRBC doc privilege log (and the corresponding log
`for our other client custodians) to include the subject line—but will redact those subject lines
`that reveal the advice itself or the strategic plans we are discussing, and replace it with a
`benign subject line. As for the “Privilege Description” field, that is superfluous in the context of
`the FRBC docs (and other A-C docs relating to communications between PW’s patent lawyers
`and representatives of PW) relating to the PW claims against Amazon and other non Amazon
`targets. The Privilege Description is, obviously, the attorney client and work product privileges
`asserted where indicated.
`
`3. Many Entries Lack Any/Key Information to Identify Document or Substantiate Privilege: Many
`entries are lacking key information to sufficiently identify the document and substantiate the
`claims of privilege, such as but not limited to, the fields: “Email From,” “Email To,” “Email CC,”
`“Privilege Description,” “Email Subject,” and/or “Date Sent.” See, e.g., BDE047611,
`BDE047616, BDE166527, BDE166547, BDE166749, BDE166754, BDE166775,1 BDE166776,
`BDE166781, BDE166962-BDE166982, BDE167230. Please provide an amended privilege log
`adding all available identifying information for all such entries. I think this has resulted from a
`lack of clarity in our log. The documents you list above are attachments to host emails. Thus
`BDE 47611 is an attachment to 47610, 47616 is an attachment to 47615, and for the rest you
`mentioned except 166775 is a law firm logo of the Mirman Bubman firm going to 166774 as is
`166776 (an FRBC logo) (why logo gets put onto a second page is beyond me), 166962-82 are
`associated with 166961. I am asking our vendor if we can clear this up so that the log will
`show whether a document is associated with a host email and will report back.
`4. Improperly Claiming Privilege Over Documents Involving Non-Insiders: Many entries
`improperly claim privilege over documents sent to/received from individuals clearly outside
`the scope of the privilege, e.g., Mr. Richards, Mr. Weiss, and opposing counsel, including
`Fenwick attorneys/personnel. See, e.g., BDE161885, BDE161901, BDE161916, BDE161963,
`BDE162412, BDE162427, BDE162428, BDE163500, BDE163557, BDE163582, BDE163627,
`BDE163728, BDE163792, BDE168096, KB104413, KB105485, KB106368, KB108909,
`CTRL00003408, CTRL00003768, CTRL00003789, CTRL00003796, CTRL00003801. Please
`confirm that you will withdraw the claims of privilege for all such documents and produce
`them—each labelled in the file name by your privilege log column “BegControl” (for tracking
`purposes). There are a number of issues here. Obviously the ones with Fenwick, Mirman
`Bubman in the last email of a chain or standalone are errors and we are withdrawing the
`privilege claim. As for Richards, if there is an FRBC email to/from him the privilege claim was
`erroneous and will be withdrawn (I thought we had caught all those in the FRBC production
`but it didn’t get caught in the client custodian copies of the same emails.) If it is a Richards
`email between he and PW reps who are also reps of the secured creditors or entities having a
`membership interest in PW regarding his representation of that entity the privileges would
`apply and it would also apply if Weiss, as manager of PW, was on the email. The same would
`
`

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`Case 5:18-md-02834-BLF Document 860-11 Filed 03/24/23 Page 5 of 10
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`be true for emails that are from Stubbs or any of the other patent lawyer firms and PW
`regarding litigation still ongoing or being wound up.
`
`5. Improperly Claiming Privilege Where There Is No Attorney: Many entries claim attorney-client
`and/or attorney work product privileges where it appears no attorney is involved, but rather
`only various Insiders’ non-legal personnel or non-legal outside contacts. See, e.g.,
`MM004500, MM004504, MM004598, MM005409, MM005420, KB060712, KB104968,
`KB105014, KB105019, KB105022, KB109229. These documents are clearly outside the scope
`of the privilege. Please confirm that you will withdraw these claims of privilege for all such
`documents and produce them—each labelled in the file name by your privilege log column
`“BegControl” (for tracking purposes). These will be withdrawn from privilege log, as are others
`of the same type.
`
`6. Improperly Claiming Privilege Where There Are No Legal Discussions: Many entries improperly
`claim attorney-client and/or attorney work product over documents that while, involving an
`attorney, appear to discuss purely corporate business matters and not legal matters. See,
`e.g., BDE065399, BDE065400, BDE065414, BDE065419, BDE065423, BDE065461, BDE065986,
`MM004755, MM004758, MM005401, MM005421, MM005568. These documents are
`outside the scope of the privilege. See Staley v. Gilead Sciences, Inc., Civ. A. No. 19-cv-02573-
`EMC(LB), Dkt. No. 617 (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).”); Callwave Commc'ns, LLC v. Wavemarket, Inc., Civ. A. No. 14-cv-80112 JSW (LB),
`2015 WL 831539, at *3 (N.D. Cal. Feb. 23, 2015) (“[d]ocuments prepared in the ordinary
`course of business or that would have been created in essentially similar form irrespective of
`the litigation are not protectable as work product.”); 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.”). Please confirm that you will withdraw these
`claims of privilege for all such documents and produce them—each labelled in the file name
`by your privilege log column “BegControl” (for tracking purposes). All of these and similar
`ones had been pulled for production and priv waiver last week as part of the review we began
`shortly after the production was made. We will be producing, for example, all of the “cash on
`hand” emails.
`
`7. Improperly Claiming Privilege Over Correspondence Between Insiders and Receiver: Insiders
`have improperly claimed privilege and withheld correspondence between them and the
`receiver. See, e.g., BDE167045, BDE167105, BDE167279, BDE167305, BDE167901,
`BDE167907, BDE167934, BDE167962, BDE167964, BDE167968, BDE167969, BDE169538,
`CTRL00003470, CTRL00003474, CTRL00003483. Correspondence between Insiders and the
`receiver does not meet the claimed attorney-client privilege and, moreover, Insiders already
`agreed to produce all communications between them and the receiver. See Dkt. No. 750 (“By
`May 26, 2022, [Brilliant Digital Entertainment, Inc., Claria Innovations, LLC, Europlay Capital
`Advisors, LLC, and Monto Holdings Pty Ltd (“Third-Parties”)] will produce the reports by Robb
`Evans & Associates concerning the receivership over PersonalWeb Technologies, LLC
`(“PersonalWeb”) and any other communications between any of the Third-Parties, on the one
`
`

`

`Case 5:18-md-02834-BLF Document 860-11 Filed 03/24/23 Page 6 of 10
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`hand, and the receiver Robb Evans, on the other (including any communications from or
`through counsel or prospective counsel)” (emphasis supplied)). Please confirm that you will
`withdraw the claims of privilege for all such documents and produce them—each labelled in
`the file name by your privilege log column “BegControl” (for tracking purposes). This was
`covered in our email last week.
`
`8. Improper Claim of Privilege Over Court Notifications: As yet another example raising questions
`of whether Insiders even reviewed their privilege log or the documents listed therein, Insiders
`improperly claim that e-mail PACER notifications of new court filings constitute attorney client
`or attorney work product. See, e.g., BDE156636-BDE156653. Please confirm that you will
`withdraw these claims of privilege for all such documents and produce them—each labelled in
`the file name by your privilege log column “BegControl” (for tracking purposes). We disagree
`with the broad scope of your assertion. If a client forwards to an attorney or an attorney
`forwards to a client a document that is taken from the public record or is otherwise
`unprivileged as part of a confidential communication seeking or giving legal advice regarding
`the attached or enclosed document, the privilege applies to all parts of the communication,
`even the public document about which the advice is sought/given—even though such a
`document, standing alone would not be privileged. See In re Spaulding, 203 F. 3d 800, 805-
`806 (Fed Cir 2000) (citing Upjohn, 449 U.S. 383,390 (1981)). That said, we are withdrawing
`privilege claims where the email is simply forwarding a filed pleading or unprivileged
`document without comment or question raised.
`
`
`The above is a non-exhaustive list of entries having the above issues—the number of affected
`entries are far too numerous to identify them all. We can appreciate this comment. Where we have
`indicated that we will produce documents of one category we will endeavor to produce all like
`documents.
`
`Please provide your availability this week to meet and confer regarding the above.
`
`Regards,
`Chris
`
`Chris Lavin
`Fenwick | Associate | +1 415-875-2287 | CLavin@fenwick.com | Admitted to practice in
`California.
`
`From: Bruce D. Poltrock <bpoltrock@frandzel.com>
`Sent: Monday, June 27, 2022 7:03 PM
`To: Christopher Lavin <CLavin@fenwick.com>; Todd Gregorian <TGregorian@fenwick.com>
`Cc: Thomas Robins <trobins@frandzel.com>; Michael Fletcher <mfletcher@frandzel.com>; Bryan
`Patzwald <bpatzwald@frandzel.com>
`Subject: RE: Amazon subpoena documents
`
`** EXTERNAL EMAIL **
`
`

`

`Case 5:18-md-02834-BLF Document 860-11 Filed 03/24/23 Page 7 of 10
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`Also, privilege log attached.
`
`Bruce D. Poltrock
`FRANDZEL ROBINS BLOOM & CSATO, L.C.
`1000 Wilshire Boulevard, 19th Floor
`Los Angeles, CA 90017-2427
`Phone:
`(323) 852-1000
`Mobile:
`(714) 287-3532
`Facsimile:
`(323) 651-2577
`E-mail:
`bpoltrock@frandzel.com
`Web:
`http://www.frandzel.com
`
` GO GREEN: Please consider the environment before you print.
`
` (cid:51)
`
`This electronic message contains information which may be confidential and privileged and is intended only for the named addressee.
`Unless you are the addressee of this message you may not use, copy or disclose the contents of this message to anyone. If you have
`received this message in error, please delete the message and advise the sender by reply e-mail or by calling (323) 852-1000. Thank
`you.
`
`To ensure compliance with Internal Revenue Service Circular 230, we inform you that any U.S. Federal Tax advice contained in this
`communication is not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal
`Revenue Code or (2) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.
`From: Bruce D. Poltrock
`Sent: Monday, June 27, 2022 6:24 PM
`To: Christopher Lavin <CLavin@fenwick.com>; Todd Gregorian <TGregorian@fenwick.com>
`Cc: Thomas Robins <trobins@frandzel.com>; Michael Fletcher <mfletcher@frandzel.com>; Bryan
`Patzwald <bpatzwald@frandzel.com>
`Subject: RE: Amazon subpoena documents
`
`Further production:
`
`FTP URL: https://file.ricohlegal.com/
`FTP path: /client/F/Frandzel/40513_Monto-PersonalWeb/Productions
`
`Volume name: BDE002.zip
`.Zip password: CtEBPc?C4U7#jbw%
`Bates Range: BDE-00005046 - BDE-00005499
`Document count: 177
`Image count: 454
`Native count: 5
`
`Volume name: BDE003
`.Zip password: 9VqQv9mG@DrpbbK4
`Bates range: BDE-00005500 - BDE-00008529
`Document count: 199
`Image count: 3,030
`Native count: 7
`
`Bruce D. Poltrock
`FRANDZEL ROBINS BLOOM & CSATO, L.C.
`
`

`

`Case 5:18-md-02834-BLF Document 860-11 Filed 03/24/23 Page 8 of 10
`
`1000 Wilshire Boulevard, 19th Floor
`Los Angeles, CA 90017-2427
`Phone:
`(323) 852-1000
`Mobile:
`(714) 287-3532
`Facsimile:
`(323) 651-2577
`E-mail:
`bpoltrock@frandzel.com
`Web:
`http://www.frandzel.com
`
` GO GREEN: Please consider the environment before you print.
`
` (cid:51)
`
`This electronic message contains information which may be confidential and privileged and is intended only for the named addressee.
`Unless you are the addressee of this message you may not use, copy or disclose the contents of this message to anyone. If you have
`received this message in error, please delete the message and advise the sender by reply e-mail or by calling (323) 852-1000. Thank
`you.
`
`To ensure compliance with Internal Revenue Service Circular 230, we inform you that any U.S. Federal Tax advice contained in this
`communication is not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal
`Revenue Code or (2) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.
`From: Bruce D. Poltrock
`Sent: Monday, June 27, 2022 1:16 PM
`To: Christopher Lavin <CLavin@fenwick.com>; Todd Gregorian <TGregorian@fenwick.com>
`Cc: Thomas Robins <trobins@frandzel.com>; Michael Fletcher <mfletcher@frandzel.com>; Bryan
`Patzwald <bpatzwald@frandzel.com>
`Subject: RE: Amazon subpoena documents
`
`Further production: more to follow today.
`
`FTP URL: https://file.ricohlegal.com/
`FTP path: /client/F/Frandzel/40513_Monto-PersonalWeb/Productions
`Volume name: MONTO002.zip
`.Zip password: :>[/L.h=-c[Mb]2d
`Bates range: MONTO-00000870 - MONTO-00002375
`Document count: 447
`Image count: 1,506
`Native count: 21
`
`Bruce D. Poltrock
`FRANDZEL ROBINS BLOOM & CSATO, L.C.
`1000 Wilshire Boulevard, 19th Floor
`Los Angeles, CA 90017-2427
`Phone:
`(323) 852-1000
`Mobile:
`(714) 287-3532
`Facsimile:
`(323) 651-2577
`E-mail:
`bpoltrock@frandzel.com
`Web:
`http://www.frandzel.com
`
` GO GREEN: Please consider the environment before you print.
`
` (cid:51)
`
`This electronic message contains information which may be confidential and privileged and is intended only for the named addressee.
`Unless you are the addressee of this message you may not use, copy or disclose the contents of this message to anyone. If you have
`received this message in error, please delete the message and advise the sender by reply e-mail or by calling (323) 852-1000. Thank
`you.
`
`

`

`Case 5:18-md-02834-BLF Document 860-11 Filed 03/24/23 Page 9 of 10
`
`To ensure compliance with Internal Revenue Service Circular 230, we inform you that any U.S. Federal Tax advice contained in this
`communication is not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal
`Revenue Code or (2) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.
`From: Bruce D. Poltrock
`Sent: Monday, June 27, 2022 12:04 PM
`To: Christopher Lavin <CLavin@fenwick.com>; Todd Gregorian <TGregorian@fenwick.com>
`Cc: Thomas Robins <trobins@frandzel.com>; Michael Fletcher <mfletcher@frandzel.com>; Bryan
`Patzwald <bpatzwald@frandzel.com>
`Subject: Amazon subpoena documents
`
`Further additional productions below, and more to follow today.
`
`FTP URL: https://file.ricohlegal.com/
`FTP path: /client/F/Frandzel/40513_Monto-PersonalWeb/Productions
`
`.Zip file name BDE001
`.Zip password: vk+?5wNw!E~[<Wg~
`Bates range: BDE-00000001 - BDE-00005045
`Document count: 56
`Page count: 5,045
`Native count: 1
`
`Volume name: CLAR001.zip
`.Zip password: \Ew3&`;!b}Bj!Y4v
`Bates range: CLAR-00000001 -CLAR-00000072
`Document count: 12
`Image count: 72
`Native count: 0
`
`Volume name: ECA001.zip
`.Zip password: \Ew3&`;!b}Bj!Y4v
`Bates range: ECA-00000001 - ECA-00000671
`Document count: 82
`Image count: 671
`Native count: 1
`
`Bruce D. Poltrock
`FRANDZEL ROBINS BLOOM & CSATO, L.C.
`1000 Wilshire Boulevard, 19th Floor
`Los Angeles, CA 90017-2427
`Phone:
`(323) 852-1000
`Mobile:
`(714) 287-3532
`Facsimile:
`(323) 651-2577
`E-mail:
`bpoltrock@frandzel.com
`Web:
`http://www.frandzel.com
`
` GO GREEN: Please consider the environment before you print.
`
` (cid:51)
`
`

`

`Case 5:18-md-02834-BLF Document 860-11 Filed 03/24/23 Page 10 of 10
`
`This electronic message contains information which may be confidential and privileged and is intended only for the named addressee.
`Unless you are the addressee of this message you may not use, copy or disclose the contents of this message to anyone. If you have
`received this message in error, please delete the message and advise the sender by reply e-mail or by calling (323) 852-1000. Thank
`you.
`
`To ensure compliance with Internal Revenue Service Circular 230, we inform you that any U.S. Federal Tax advice contained in this
`communication is not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal
`Revenue Code or (2) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.
`
`