Case 5:18-md-02834-BLF Document 862 Filed 03/28/23 Page 1 of 3
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`IN RE PERSONALWEB
`TECHNOLOGIES, LLC, et al.,
`PATENT LITIGATION
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`Case No. 18-md-02834-BLF (SVK)
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`ORDER ON JOINT DISCOVERY
`SUBMISSION
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`Re: Dkt. No. 860
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`Before the Court is the Parties’ Joint Discovery Submission regarding an alleged waiver of
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`privilege by third party investors (“Investors”) who have previously appeared in this action.
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`Judgment-creditor Amazon seeks an order compelling production of certain communications by
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`the Investors, arguing that the inclusion of PersonalWeb’s attorney, Jeff Gersh, in the
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`communications waives any claim of privilege. Amazon also argues that the Investors’
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`production of related communications constitutes a subject matter waiver. The Investors claim
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`that there has been no waiver based upon a variety of facts as to who was representing whom
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`when, the common interest doctrine and attorney work-product. The Court has reviewed the
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`submission and supporting exhibits and will benefit from more complete briefing on the issue of
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`waiver.
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`I.
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`Amazon’s motion to compel production.
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`First, the Court calls the Parties’ attention to this Court’s Civil & Discovery Referral
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`Matters Standing Order, updated January 2023, which allows ten pages, double-spaced, for joint
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`discovery submissions. The standing order also admonishes against argument in footnotes. The
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`supplemental briefing must comply with this Court’s Order as to the use of footnotes. The Parties
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`will file supplemental briefs on the following schedule:
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`Case 5:18-md-02834-BLF Document 862 Filed 03/28/23 Page 2 of 3
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`Amazon’s supplemental brief, not to exceed 10 pages:
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`April 7, 2023
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`Investors’ supplemental brief, not to exceed 10 pages: April 19, 2023
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`Amazon’s reply brief, not to exceed 5 pages:
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`April 26, 2023
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`The Parties may include supporting declarations where appropriate but are cautioned that
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`declarations may only set forth facts, not argument. The Court will set a hearing if needed.
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`The Parties’ briefing may enhance any argument in the Joint Submission or set forth new
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`argument, and should also address the following:
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`1. The Court is interested in authority that addresses the waiver of privilege where the
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`communication arguably undermining the privilege is with counsel who is engaged in
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`dual representation, as is Mr. Gersh/SAM.
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`2. The Investors raise an argument of attorney work product, suggesting that “Disclosure
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`of the materials to Gersh was not the equivalent of disclosure to PW itself.” The Court
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`is not so certain. See topic no. 1 above.
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`3. It appears unlikely to the Court that a common interest privilege would apply as
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`between PersonalWeb and the Investors in light of the receivership action in state
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`court. The Court is interested in additional authority reflective of or analogous to the
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`positions of PersonalWeb and the Investors on this issue.
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`4. Amazon argues subject matter waiver because an Investor produced “other emails with
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`Mr. Gersh and ‘other PersonalWeb representatives’ concerning the loan
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`transactions . . . . ” If Amazon seeks to pursue this argument, it must specifically
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`identify exemplar emails including the “other PersonalWeb representatives” that
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`purportedly lead to waiver. Relevant portions of any exemplars are to be highlighted.
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`Case 5:18-md-02834-BLF Document 862 Filed 03/28/23 Page 3 of 3
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`II.
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`Amazon’s motion to compel logging of certain documents by the Investors.
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`This request is DENIED for the reasons previously stated when the subject documents
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`were identified on the record as being transferred from the SAM law firm to the Investors and is
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`not to be addressed in the supplemental briefing. See Dkt. 850.
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`SO ORDERED.
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`Dated: March 28, 2023
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`SUSAN VAN KEULEN
`United States Magistrate Judge
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