Case 5:18-md-02834-BLF Document 869 Filed 04/19/23 Page 1 of 14
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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.
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
`IN RE: PERSONAL WEB TECHNOLOGIES,
`LLC ET AL., PATENT LITIGATION,
`
`
`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
`Plaintiffs
`
`v.
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Defendants.
`
`PERSONALWEB TECHNOLOGIES, LLC, and
`LEVEL 3 COMMUNICATIONS, LLC,
`
`Plaintiffs,
`
`v.
`
`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
`
`SUPPLEMENTAL BRIEF OF THIRD
`PARTIES, BRILLIANT DIGITAL
`ENTERTAINMENT, INC. AND MONTO
`HOLDINGS PTY LTD IN OPPOSITION
`TO AMAZON’S MOTION TO COMPEL
`PRODUCTION OF PRIVILEGED
`DOCUMENTS [Dkt. 860, 862, 864]
`
`
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`
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`
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`1
`4891889v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`SUPPLEMENTAL BRIEF OF 3RD PARTIES, BRILLIANT DIGITAL ENTERTAINMENT, INC. & MONTO
`HOLDINGS PTY LTD IN OPPO TO AMAZON’S MOTION TO COMPEL PROD OF PRIVILEGED DOC.
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
`
`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
`
`LOS ANGELES, CALIFORNIA 90017‐2427 
`
`(323) 852‐1000 
`
`

`

`Case 5:18-md-02834-BLF Document 869 Filed 04/19/23 Page 2 of 14
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`TABLE OF CONTENTS
`
`Page
`
`A.
`B.
`C.
`D.
`E.
`F.
`G.
`
`Introduction ................................................................................................................5
`No Dual Representation .............................................................................................5
`Common Interest Doctrine .........................................................................................6
`Analogous Situations to Secured Lenders/PW Situation ...........................................7
`No Waiver ..................................................................................................................9
`The Work Product Protection for the Communications Was Not Waived ..............11
`No Crime Fraud Exception ......................................................................................12
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`4891889v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`SUPPLEMENTAL BRIEF OF 3RD PARTIES, BRILLIANT DIGITAL ENTERTAINMENT, INC. & MONTO
`HOLDINGS PTY LTD IN OPPO TO AMAZON’S MOTION TO COMPEL PROD OF PRIVILEGED DOC.
`
`
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
`
`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
`
`LOS ANGELES, CALIFORNIA 90017‐2427 
`
`(323) 852‐1000 
`
`

`

`Case 5:18-md-02834-BLF Document 869 Filed 04/19/23 Page 3 of 14
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`
`
`Federal Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Callwave Communications, LLC v. Wavemarket, Inc.,
`2015 WL 831539 (N.D. Cal. Feb. 13, 2015) ............................................................................. 7
`
`Eureka Ins. Corp. v. Chicago Title Ins. Co.,
`743 F.2d 932 (D.C. Cir. 1984) ................................................................................................ 11
`
`In re Grand Jury Investigation,
`810 F.3d 1110 (9th Cir. 2016) ................................................................................................. 12
`
`Holmes v. Collection Bureau of America, LTD.,
`2010 WL 143484 (N.D. Cal. Jan. 8, 2010) ............................................................................... 7
`
`In re Mortgage Realty Trust,
`212 B.R. 649 (Bankr. C.D. Cal. 1997) ...................................................................................... 7
`
`In re Napster, Inc. Copyright Litigation,
`479 F.3d 1078 (9th Cir. 2007) (abrogated on other grounds, Mohawk Industries,
`Inc. v. Carpenter, 558 U.S. 100 (2009)) ........................................................................... 12, 13
`
`In re Pacific Pictures Corp.,
`679 F.3d 1121 (2012) ................................................................................................................ 7
`
`Regents of University of California v. Affymetrix, Inc.,
`326 F.R.D 275 (S.D. Cal. 2018) ................................................................................................ 7
`
`Rodriguez v. Seabridge Jetlaw, LLC,
`__ F.Supp.3d _____, 2022 WL 3327925 (N.D. Cal. August 11, 2022) .................................... 8
`
`Schaeffler v. U.S.,
`806 F.3d 34 (2d Cir. 2015) ........................................................................................................ 8
`
`In re Superior Nat. Ins. Gr.,
`518 BR 562 (Bankr. C.D. Cal. 2014) ........................................................................................ 7
`
`In re Teleglobe Communications Corp.,
`493 F.3d 345 (3d Cir. 2007) ................................................................................................ 6, 11
`
`U.S. v. Burga,
`2019 WL 3859157 (N.D. Cal. August 16, 2019) ...................................................................... 8
`
`U.S. v. Gonzales,
`669 F.3d 974 (9th Cir. 2012) ..................................................................................................... 7
`
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`4891889v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`SUPPLEMENTAL BRIEF OF 3RD PARTIES, BRILLIANT DIGITAL ENTERTAINMENT, INC. & MONTO
`HOLDINGS PTY LTD IN OPPO TO AMAZON’S MOTION TO COMPEL PROD OF PRIVILEGED DOC.
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
`
`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
`
`LOS ANGELES, CALIFORNIA 90017‐2427 
`
`(323) 852‐1000 
`
`

`

`Case 5:18-md-02834-BLF Document 869 Filed 04/19/23 Page 4 of 14
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`
`
`U.S. v. Jacobs,
`117 F.2d 82 (2d Cir. 1997) ................................................................................................ 12, 13
`
`U.S. v. Sanmina Corporation,
`968 F.3d 1107 (9th Cir. 2020) ....................................................................................... 9, 11, 12
`
`U.S. v. Zolin,
`491 U.S. 554 (1989) ................................................................................................................ 12
`
`United States v. Sierra Pacific Industries, Inc.,
`862 F.3d 1157 (9th Cir. 2017) ................................................................................................. 13
`
`In re Village at Lakeridge, LLC,
`2013 WL 1397447 (9th Cir. BAP April 5, 2013) ...................................................................... 7
`
`State Cases
`
`330 Acquisition Co., LLC v. Regency Savings Bank, F.S.B.,
`2003 WL 25516150 (N.Y. Sup. Ct., July 11, 2003), aff’d., 12 A.D. 3d 214, 783
`N.Y.S. 2d 805 (N.Y. Sup. Ct., App. Dept. 2004) ...................................................................... 8
`
`BP Alaska Exploration, Inc. v. Superior Court,
`199 Cal.App.3d 1240 (1988) ................................................................................................... 12
`
`Other Authorities
`
`Restatement of the Law Third -- The Law Governing Lawyers, § 76 cmt e .................................. 7
`
`Rice, Attorney-Client Privilege in the United States, § 6.6 (2022 – 2023 version
`online) ...................................................................................................................................... 11
`
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`4891889v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`SUPPLEMENTAL BRIEF OF 3RD PARTIES, BRILLIANT DIGITAL ENTERTAINMENT, INC. & MONTO
`HOLDINGS PTY LTD IN OPPO TO AMAZON’S MOTION TO COMPEL PROD OF PRIVILEGED DOC.
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
`
`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
`
`LOS ANGELES, CALIFORNIA 90017‐2427 
`
`(323) 852‐1000 
`
`

`

`Case 5:18-md-02834-BLF Document 869 Filed 04/19/23 Page 5 of 14
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`Third Parties, Brilliant Digital Entertainment, Inc. (“BDE”) and Monto Holdings Pty Ltd.
`(“Monto”), (along with Third Parties, Europlay Capital Advisors, LLC (“ECA”), and Claria
`Innovations, LLC (“Claria”) (“Secured Lenders”), submit this Supplemental Brief in opposition to
`Amazon’s Motion to compel production of documents (the “Gersh emails” and “non-Gersh emails”)
`withheld on grounds of attorney-client and attorney work product privileges.
`A.
`Introduction
`The Court’s March 28, 2023 Order (Dkt. 862) raised four issues for further discussion: (1)
`Authority addressing waiver of privilege where communications are with counsel engaged in dual
`representation as is Gersh/SAM; (2) Regarding attorney work product, whether disclosure to Gersh
`was not the equivalent of disclosure to PW itself; (3) whether the common interest doctrine would
`apply between PW and Secured Lenders in light of the receivership action in state court; and (4) the
`identity of emails with “other PW representatives” that Amazon claims purportedly lead to waiver.
`(As to this item (4), Amazon’s Supplemental Brief (“Supp. Br.”) does not reference any such
`matters, so this is a non-issue.)
`The Gregorian Decl. Exhibit 1 and Exhibit 2 violate the Court’s 10-page limit for this
`briefing and the requirement that declarations contain facts, not argument. Neither of these two
`Exhibits, nor the majority of the 90 Exhibits attached to Exhibit 2, provide information relevant to
`the issues now before the Court.
`Filed with this Brief are the Declarations of Michael Fletcher, Bruce Poltrock, Thomas
`Robins, and Craig Welin of the Frandzel firm, Kevin Bermeister and Anthony Neumann of BDE,
`Ronald Dyne of Monto, and Murray Markiles of SAM and ECA. Secured Lenders attempted to
`obtain a Declaration from Mr. Gersh, but was informed that, on the advice of counsel, he would not
`provide one. This effort continues. (Robins Decl., ¶¶ 3-7.)
`B.
`No Dual Representation
`The Court’s first question raises the issue of “dual representation.” Secured Lenders do not
`claim a “dual representation” in the sense that Gersh was retained to represent both the lenders and
`PW for purposes of advice as to enforcement of the secured loans. Just because Secured Lenders
`were clients of SAM as was PW does not necessarily mean that they are “joint clients” for the same
`
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`4891889v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`SUPPLEMENTAL BRIEF OF 3RD PARTIES, BRILLIANT DIGITAL ENTERTAINMENT, INC. & MONTO
`HOLDINGS PTY LTD IN OPPO TO AMAZON’S MOTION TO COMPEL PROD OF PRIVILEGED DOC.
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
`
`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
`
`LOS ANGELES, CALIFORNIA 90017‐2427 
`
`(323) 852‐1000 
`
`

`

`Case 5:18-md-02834-BLF Document 869 Filed 04/19/23 Page 6 of 14
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`matter, as Amazon asserts/speculates. It is well recognized that, “clients of the same lawyer who
`share a common interest are not necessarily co-clients. Whether individuals have jointly consulted
`a lawyer or have merely entered concurrent but separate representations is determined by the
`understanding of the parties and the lawyer in light of the circumstances. Co-client representations
`must also be distinguished from situations in which a lawyer represents a single client, but another
`person with allied interests cooperates with the client and the client’s lawyer.” In re Teleglobe
`Communications Corp., 493 F.3d 345, 362 (3d Cir. 2007) (cited by Amazon)
`Thus, during late March-April 2021 Gersh/SAM were in a direct attorney-client relationship
`with Secured Lenders, which is what they understood and intended. SAM/Gersh had a decades-
`long attorney-client relationship with each of the Secured Lenders (the principal general counsel for
`BDE) -- dating well before PW was even created or SAM represented PW in the Amazon litigation
`-- that included preparing the original loan documents with PW. Bermeister Decl., ¶¶ 2, 3, Neumann
`Decl., ¶¶ 2-4, Dyne Decl., ¶¶ 2, 3, Markiles Decl., ¶¶ 2-4. For the limited purpose assisting counsel
`for the Secured Lenders in view of the attorney fee award and analyzing the potential impact of that
`award on the security interests granted Secured Lenders in the loan documents prepared by SAM,
`Secured Lenders sought the advice and assistance of Gersh/SAM. While at the same time,
`Gersh/SAM were involved in appealing the judgment and attorney fee award on behalf of PW, they
`had not been retained by PW to represent it in the post judgment collection efforts by Amazon or
`with respect to the secured loans. See Gersh Decl., May 12, 2021, Dkt. 674-1, ¶¶ 2-4; Bermeister
`Decl., ¶¶ 5-10, Neumann Decl., ¶¶ 5-12, Dyne Decl., ¶¶ 5-6, Markiles Decl., ¶¶ 6-15. See Amazon
`Exhibits B, C, D, Dkt. 860-3, 4, 5, and new Exhibits Dkt. 864-16-20. Frandzel was introduced to
`SAM/Gersh as “the lawfirm we [BDE] have worked with for decades,” and understood that in the
`discussions during April 2021, Gersh was acting on behalf of the lenders. Welin Decl., ¶¶ 2-6,
`Fletcher Decl., ¶¶ 2-10.
`C.
`Common Interest Doctrine
`Even if the Court indulges Amazon’s fiction that Gersh represented PW for purposes of
`participating in the April 2021 communications, the communications are protected under the
`“common interest” doctrine. The elements, applicable to the attorney-client and work product
`
`6
`4891889v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`SUPPLEMENTAL BRIEF OF 3RD PARTIES, BRILLIANT DIGITAL ENTERTAINMENT, INC. & MONTO
`HOLDINGS PTY LTD IN OPPO TO AMAZON’S MOTION TO COMPEL PROD OF PRIVILEGED DOC.
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
`
`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
`
`LOS ANGELES, CALIFORNIA 90017‐2427 
`
`(323) 852‐1000 
`
`

`

`Case 5:18-md-02834-BLF Document 869 Filed 04/19/23 Page 7 of 14
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`privilege, are: The communication is (1) made by separate parties in the course of a matter of
`common interest; (2) designed to further that effort; and (3) has not been waived. One party to a
`joint interest agreement cannot waive the privilege for the other holders. U.S. v. Gonzales, 669 F.3d
`974, 982 (9th Cir. 2012). The doctrine can apply where the parties’ interests are adverse in
`substantial respects, a future lawsuit between them is foreseeable, and where they may have a
`significant conflict of interest. See Callwave Communications, LLC v. Wavemarket, Inc., 2015 WL
`831539 at *4 (N.D. Cal. Feb. 13, 2015); In re Mortgage Realty Trust, 212 B.R. 649, 653 (Bankr.
`C.D. Cal. 1997); Holmes v. Collection Bureau of America, LTD., 2010 WL 143484 at *2 (N.D. Cal.
`Jan. 8, 2010). The exception can apply where “the parties . . . make the communication in pursuit
`of a joint strategy in accordance with some form of agreement -- whether written or unwritten.” In
`re Pacific Pictures Corp., 679 F.3d 1121, 1129 (2012). As to the element of an agreement, “it is
`clear that no written agreement is required, and that a [joint defense agreement] . . . may be implied
`by conduct and situation, such as attorneys exchanging confidential communications from clients
`who are or potentially may . . . have common interests in litigation.” Gonzalez, 669 F.3d at 980.
`“The existence of an express or implied joint defense agreement is not necessarily an all-or-nothing
`proposition.” Regents of University of California v. Affymetrix, Inc., 326 F.R.D 275, 279 (S.D. Cal.
`2018). “The community of interest rationale . . . is applicable whenever the parties with common
`interests join forces for purposes of obtaining more effective legal assistance. . . .” (Id.) “The
`communication must relate to the common interest, which may be either legal, factual, or strategic
`in character.” Restatement of the Law Third -- The Law Governing Lawyers, § 76 cmt e.
`D.
`Analogous Situations to Secured Lenders/PW Situation
`Courts have readily extended the common interest doctrine to debtor/creditor situations in
`bankruptcy, where the debtor’s interests align with creditors either to have a plan of reorganization
`approved or in pursuing litigation against others to increase the value of the debtor’s estate. See In
`re Superior Nat. Ins. Gr., 518 BR 562, 573 (Bankr. C.D. Cal. 2014) (“[A] plethora of federal courts
`have found a common interest between the debtor and creditors committee (and other participants
`in bankruptcy) . . . .”; In re Mortgage & Realty Tr., 212 B.R. at 653; In re Village at Lakeridge,
`LLC, 2013 WL 1397447 at * (9th Cir. BAP April 5, 2013) (secured creditor and debtor shared a
`
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`4891889v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`SUPPLEMENTAL BRIEF OF 3RD PARTIES, BRILLIANT DIGITAL ENTERTAINMENT, INC. & MONTO
`HOLDINGS PTY LTD IN OPPO TO AMAZON’S MOTION TO COMPEL PROD OF PRIVILEGED DOC.
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
`
`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
`
`LOS ANGELES, CALIFORNIA 90017‐2427 
`
`(323) 852‐1000 
`
`

`

`Case 5:18-md-02834-BLF Document 869 Filed 04/19/23 Page 8 of 14
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`common interest in that they both wanted to obtain confirmation of the plan of reorganization).
`Schaeffler v. U.S., 806 F.3d 34 (2d Cir. 2015) applied the common interest doctrine to
`attorney-client and work product materials being shared between a borrower and its banks regarding
`a potential IRS audit of the tax treatment given to a refinance transaction, finding that same “were .
`. . made in the course of an ongoing legal enterprise and intended to further that enterprise.” (Id., at
`p. 42.) The court explained, “[I]t was the interest in avoiding the losses that established a common
`legal interest. A financial interest of a party, no matter how large, does not preclude a court from
`finding a legal interest shared with another party where the legal aspects materially affect the
`financial interests.” (Id.) Schlaeffler has been cited with approval in this District in Rodriguez v.
`Seabridge Jetlaw, LLC, __ F.Supp.3d _____, 2022 WL 3327925 at *7 (N.D. Cal. August 11, 2022)
`and by this Court in U.S. v. Burga, 2019 WL 3859157 at *3 (N.D. Cal. August 16, 2019) (citing
`Schaeffler for the proposition that for the common interest doctrine to apply, the party claiming
`same must “articulate what common legal interests or strategy and what particular legal goal they
`share.” (Emphasis by the Court.)
`330 Acquisition Co., LLC v. Regency Savings Bank, F.S.B., 2003 WL 25516150 (N.Y. Sup.
`Ct., July 11, 2003), aff’d., 12 A.D. 3d 214, 783 N.Y.S. 2d 805 (N.Y. Sup. Ct., App. Dept. 2004)
`applied the common interest doctrine to communications between counsel for a defaulted debtor
`and the lead bank in a loan participation agreement where the lead bank was at odds with the
`participant. After initiating foreclosure proceedings against the debtor, the lead bank commenced
`working with the debtor to resolve the default on terms both the debtor and lead bank desired, to
`which the participant objected. The doctrine was applied to communications between counsel for
`the debtor and lead bank during the foreclosure proceedings who shared a common interest in
`opposing the participant’s attempts to disrupt their negotiations and to such discussions after the
`debtor filed Chapter 11 where both had to fend off the participant’s challenge to a proposed
`reorganization plan. The court rejected the argument, akin to that urged by Amazon here, that as a
`creditor the lead lender necessarily was an adversary of the borrower.
`Here, while Amazon is expected to do hand flips to try to distinguish these cases, the
`fundamental common interest is the same: The Secured Lenders and PW had a joint legal interest
`
`8
`4891889v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`SUPPLEMENTAL BRIEF OF 3RD PARTIES, BRILLIANT DIGITAL ENTERTAINMENT, INC. & MONTO
`HOLDINGS PTY LTD IN OPPO TO AMAZON’S MOTION TO COMPEL PROD OF PRIVILEGED DOC.
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
`
`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
`
`LOS ANGELES, CALIFORNIA 90017‐2427 
`
`(323) 852‐1000 
`
`

`

`Case 5:18-md-02834-BLF Document 869 Filed 04/19/23 Page 9 of 14
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`in preserving/maximizing the value of the IP collateral which, if any the appeals were successful,
`was believed could exceed the aggregate balances of the loans (and certainly if successful in
`reversing the attorney fee award, fully eliminating any threat by Amazon). Thus, they had a joint
`legal, as well as economic, interest in developing and implementing the plan to get the assets under
`the protection of a court through a receivership. Bermeister Decl., ¶ 10, Dyne Decl., ¶ 6, Markiles
`Decl., ¶ 11, Fletcher Decl., ¶ 6. Moreover, as Amazon points out, Secured Lenders either themselves
`(Monto) or through subsidiaries (BDE/ECA) were and are majority members of PW.
`E.
`No Waiver
`Amazon must base its claim of waiver on express waiver; by definition, there has not been
`an implied waiver because Secured Lenders have not affirmatively used a portion of the emails to
`their advantage or to the disadvantage of Amazon. U.S. v. Sanmina Corporation, 968 F.3d 1107,
`1117 (9th Cir. 2020). Express waiver involves voluntarily disclosing privileged documents to “a
`third party who is not bound by the privilege; or otherwise shows disregard for the privilege by
`making the information public.” (Id.). Whether Secured Lenders waived the privilege as to
`documents voluntarily disclosed to Gersh “turns chiefly” on whether the materials were shared with
`Gersh “for the purpose of obtaining legal advice.” (Id.)
`Here, the representatives of the Secured Lenders (Bermeister, Neumann, Dyne, and
`Markiles) and counsel, Fletcher, Welin state that the purpose of including Gersh on the
`communications was to get his assistance and legal input on the loan documents and the issues
`facing the Secured Lenders arising from the attorneys’ fees award. The belief that Gersh was acting
`on their behalf was reasonable: There had been a long-standing attorney-client relationship between
`SAM and Secured Lenders for decades, and the same was true of Gersh -- from even before he had
`joined SAM. On behalf of the Secured Lenders, SAM lawyers had prepared the very loan
`documents and related amendments from 2011 through 2019 that were central to the issues being
`discussed. Likewise, Frandzel attorneys Welin (who had been introduced to SAM/Gersh as BDE’s
`“decades-long counsel”) and Fletcher, ultimately lead counsel, understood and believed that Gersh
`was participating on behalf of the Secured Lenders. See Bermeister Decl., ¶¶ 2, 3, 8, Dyne Decl.,
`¶¶ 2, 5, 6, Neumann Decl., ¶¶ 2-4, 6, 8-10, Markiles Decl., ¶¶ 2-4, 2-15., Fletcher Decl., ¶¶ 3-7,
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`4891889v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`SUPPLEMENTAL BRIEF OF 3RD PARTIES, BRILLIANT DIGITAL ENTERTAINMENT, INC. & MONTO
`HOLDINGS PTY LTD IN OPPO TO AMAZON’S MOTION TO COMPEL PROD OF PRIVILEGED DOC.
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
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`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
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`LOS ANGELES, CALIFORNIA 90017‐2427 
`
`(323) 852‐1000 
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`

`

`Case 5:18-md-02834-BLF Document 869 Filed 04/19/23 Page 10 of 14
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`Welin Decl., ¶¶ 2-6. That Gersh has declined to date, reportedly on the advice of counsel, to provide
`his own declaration does not detract from the subjective and good faith understanding, intent and
`belief of the clients and the clients’ retained counsel.
`That Gersh/SAM viewed the communications at issue as documents belonging to “other
`clients of SAM,” and thus not PW (which, would have had to be turned over to Lewis Roca) is
`manifest from the certifications SAM, through Gersh, made to the Court on January 31, 2023 (Dkt.
`843, p.2) regarding what was described as the category (a) documents that it was withholding from
`Lewis Roca and would turn over to counsel for subpoenaed parties. This Court accepted what it
`termed “SAM’s representations to this Court in the two post-hearing status reports (Dkts. 837, 843)
`that it is withholding documents on the good faith belief of counsel that the documents either don’t
`belong to PersonalWeb or implicate privileged communications or protected work product of third
`parties, …” (Dkt. 850, p. 2:25-3:4, p. 3:19-20), SAM, through Gersh, again certified on February
`13, 2023 that the Category (a) documents “did not belong to PersonalWeb or belonged to other
`clients of SAM,” (Dkt. 851.) As explained in the Poltrock Decl., ¶¶ 2-10, among the documents
`turned over by SAM to counsel for BDE/Monto, are the majority of the “Gersh emails” on the
`Amazon Exhibit A privilege log color-coded in Orange. Secured Lenders request that the Court
`accept the SAM representations and the Court’s own conclusion that same were the result of
`SAM/Gersh’s good faith belief as evidence that from Gersh’s end, he viewed his participation in
`these communications to be on behalf of Secured Lenders -- otherwise, he could not have been able
`to make the representations that he did.
`Amazon asserts that Gersh could not participate on the part of the Secured Lenders because
`he was counsel for PW thus there was a non-waivable conflict of interest. However, the fact that
`the court refused to allow SAM to withdraw until substitute counsel would appear does not change
`the substance of Mr. Gersh’s May 12, 2021 Declaration (Dkt. 674-1) that makes clear that (1) PW
`never retained SAM to represent it in any post-judgment collection proceedings, (2) SAM was
`engaged by PW to represent it in the actions up through entry of judgment and relating to Amazon’s
`motion for attorney’s fees, and (3) that as of April 27, 2021, attorney Ronald Richards emailed
`Gersh and Amazon counsel identifying himself as counsel for PW. Citing to SAM’s March 2021
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`4891889v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`SUPPLEMENTAL BRIEF OF 3RD PARTIES, BRILLIANT DIGITAL ENTERTAINMENT, INC. & MONTO
`HOLDINGS PTY LTD IN OPPO TO AMAZON’S MOTION TO COMPEL PROD OF PRIVILEGED DOC.
`
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
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`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
`
`LOS ANGELES, CALIFORNIA 90017‐2427 
`
`(323) 852‐1000 
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`

`

`Case 5:18-md-02834-BLF Document 869 Filed 04/19/23 Page 11 of 14
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`billing to PW, Amazon argues that SAM performed legal services for PW throughout that month.
`True, but the description of the services shows nothing even remotely suggesting anything contrary
`to statements made in Gersh’s May 12, 2021 Declaration. There is no evidence that SAM or Gersh
`represented PW against the Secured Lenders.
`Even if the Court were to posit that a joint client situation existed due to SAM/Gersh’s
`rendering of assistance and advice to the Secured Lenders during April 2021 and the circumstance
`that the Court would not let SAM withdraw from representing PW for purposes of Amazon’s post
`judgment collection efforts (and SAM’s continued representation of PW on appeal), any real or
`potential conflict of interest would not ipso facto result in waiver of the privilege with respect to the
`Gersh emails. See Eureka Ins. Corp. v. Chicago Title Ins. Co., 743 F.2d 932, 937-38 (D.C. Cir.
`1984) (counsel’s failure to avoid a conflict of interest should not deprive the client of attorney-client
`privilege); Teleglobe Communications, 493 F.3d at 368-69 referring to the “widely accepted”
`“Eureka Principle”) (3d Cir. 2007); Rice, Attorney-Client Privilege in the United States, § 6.6 (2022
`– 2023 version online) (“Rice”) (an attorney’s conflict of interest that would make his representation
`of the client inappropriate does not affect the reasonableness of the client’s expectation that the
`communications would be confidential). See also, Rice, § 4:30 (“The attorney’s acceptance of the
`joint representation in violation of his ethical responsibilities . . . should not affect the application
`of the attorney-client privilege to communications of each client, provided the elements of the
`privilege are otherwise met”).
`F.
`The Work Product Protection for the Communications Was Not Waived
`Under Sanmina, disclosure of work product to a third party does not waive work product
`protection unless such disclosure is made to an adversary in litigation or has substantially increased
`the opportunities for potential adversaries to obtain the information. (968 F.3d, at 1121.) The court
`recognized two “discrete” inquiries in assessing whether the disclosure constitutes a waiver: First,
`whether there has been a selective waiver to some adversaries but not to others, such that fairness
`concerns are implicated. This is not an issue here. Second, “whether the disclosing party had a
`reasonable basis for believing that the recipient would keep the disclosed material confidential. This
`reasonable expectation of confidentiality could derive from common litigation interests between the
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`4891889v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`SUPPLEMENTAL BRIEF OF 3RD PARTIES, BRILLIANT DIGITAL ENTERTAINMENT, INC. & MONTO
`HOLDINGS PTY LTD IN OPPO TO AMAZON’S MOTION TO COMPEL PROD OF PRIVILEGED DOC.
`
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
`
`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
`
`LOS ANGELES, CALIFORNIA 90017‐2427 
`
`(323) 852‐1000 
`
`

`

`Case 5:18-md-02834-BLF Document 869 Filed 04/19/23 Page 12 of 14
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`disclosing party and the recipient . . . .” (Id.) Here, as described above, Secured Lenders had
`reasonable expectancies of confidentiality and SAM/Gersh were not representing PW against the
`Secured Lenders. Also, as stated above, even in the context of the debtor-creditor relationship
`between Secured Lenders and PW, their interests were tightly aligned against the common enemy -
`- Amazon -- for purposes of protecting PW’s IP collateral and being able to complete the appeals.
`G.
`No Crime Fraud Exception
`Amazon asserts that the Gersh emails are discoverable under the crime fraud exception to
`the privileges. (Supp. Br. 5-7.)1 In re Grand Jury Investigation, 810 F.3d 1110, 1113 (9th Cir. 2016)
`states a two-part test for the exception: The client was engaged in or planning a criminal or
`fraudulent scheme when it sought the advice of counsel to further the scheme. Second, the
`communications for which production is sought are sufficiently related to and were made in
`furtherance of the intended, or present, illegality. In a civil case, the burden of proof on the party
`seeking outright disclosure of attorney-client communications under the crime-fraud exception is
`preponderance of the evidence. In re Napster, Inc. Copyright Litigation, 479 F.3d 1078, 1094-95
`(9th Cir. 2007) (abrogated on other grounds, Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100
`(2009)).
`Amazon does not state what “crime” it claims, but only urges the fraud exception. As
`Amazon states, BP Alaska Exploration, Inc. v. Superior Court, 199 Cal.App.3d 1240, 1263 (1988)
`holds that Amazon must, “prove a false representation of a material fact, knowledge of the falsity,
`intent to deceive and the right to rely.” Since it cannot assert these elements as to itself, Amazon
`posits “fraud on creditors” and “fraud on the court” theories. Amazon’s reliance on U.S. v. Jacobs,
`117 F.2d 82 (2d Cir. 1997) for its fraud on creditors theory is misplaced for two reasons. First, it
`involved the issue of whether the government had shown a factual basis sufficient to justify the court
`in holding an in camera review of the documents (Id., at 87), which is not being sought by Amazon.
`Second, and more fundamental, the case involved bank fraud and mail fraud in a fraudulent debt
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`1 Because Amazon raises the crime fraud exception seeking outright disclosure of the Gersh
`emails, not simply to have the emails reviewed by the Court in camera as step one in the process,
`Secured Lenders do not address the rules relating to such review. See U.S. v. Zolin, 491 U.S. 554,
`572 (1989).
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`4891889v1 | 101334-0002
`Case No. 5:18-md-02834-BLF
`SUPPLEMENTAL BRIEF OF 3RD PARTIES, BRILLIANT DIGITAL ENTERTAINMENT, INC. & MONTO
`HOLDINGS PTY LTD IN OPPO TO AMAZON’S MOTION TO COMPEL PROD O