Case 5:18-md-02834-BLF Document 869-8 Filed 04/19/23 Page 1 of 5
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`Thomas M. Robins III (State Bar No. 054423)
` trobins@frandzel.com
`Michael Gerard 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. and
`MONTO HOLDINGS PTY LTD
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
`
` Case No. 5:18-md-02834-BLF
`
`Case No. 5:18-cv-00767-BLF
`
`Case No. 5:18-cv-05619-BLF
`
`DECLARATION OF MICHAEL GERARD
`FLETCHER IN SUPPORT OF BDE AND
`MONTO OPPOSITION TO AMAZON’S
`MOTION TO COMPEL PRODUCTION
`OF DOCUMENTS OF THIRD PARTIES
`BDE/MONTO WITHHELD AS
`PRIVILEGED (Dkt. 860, 862, 864)
`
`
`
`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
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`4886778v3 | 101334-0002
`FLETCHER DECLARATION IN SUPPORT OF BDE AND MONTO OPPOSITION TO AMAZON’S MOTION TO
`COMPEL PRODUCTION OF DOCUMENTS OF THIRD PARTIES BDE/MONTO WITHHELD AS PRIVILEGED
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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 869-8 Filed 04/19/23 Page 2 of 5
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`Michael Gerard Fletcher declares:
`1.
`I am an attorney admitted to practice in all of the courts of the State of California,
`and admitted to the bar of this Court. I am also a shareholder in Frandzel, Robins, Bloom & Csato,
`L.C. (“FRBC”), counsel of record for Third Parties Brilliant Digital Entertainment, Inc., (“BDE”)
`and Monto Holdings Pty, Ltd. (“Monto”) in this proceeding. I have personal knowledge of the
`matters set forth in this declaration and I could and would testify competently thereto if called upon
`to do so in this matter. This declaration pertains to the BDE and Monto opposition to the attempts
`by Amazon to invade their attorney client privileges (and those of the other secured creditors) and
`my firm’s work product privileges.
`2.
`I am one of the primary attorneys representing BDE and Monto (and previously all
`of the secured creditors, including ECA and Claria) (“collectively, the “Secured Creditors”) in that
`certain pending state court action entitled Brilliant Digital Entertainment, Inc., etc., et al. vs.
`PersonalWeb Technologies, LLC, etc., et al., Los Angeles County Superior Court Case No.
`21VECV00575, wherein the Secured Creditors sued
` PersonalWeb Technologies, LLC
`(“PersonalWeb”), and sought and obtained from that court the appointment of a receiver over their
`personal property collateral (“Receivership Action”).
`3.
`In early April 2021, Anthony Neumann of BDE contacted FRBC as a referral from
`Ronald Bender of the Levine Neale law firm in connection with a potential representation of BDE
`and the other Secured Creditors by FRBC as to PersonalWeb, against which an attorney fee award
`had been recently entered. Attached hereto as Exhibit 1 is a printout of Mr. Neumann’s email to
`my co-shareholder, Craig Welin, dated Friday, April 2, 2021. Jeffrey Gersh of the Stubbs Alderton
`firm (“SAM”) and Murry Markiles were copied with that email. (BDE 64543-544.) The email
`states:
`
`Hi Craig:
`Ron Bender recommended I reach out to you per his email below.
`Stubbs Alderton, Markiles, the law firm we have worked with for
`decades, has worked closely with Ron for many years but his team
`is currently unavailable for immediate work.
`The company I work for, Brilliant Digital Entertainment, is a lender
`to a company that is the subject of an attorney’s fees judgment. We
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`Case No. 5:18-md-02834-BLF
`4886778v3 | 101334-0002
`FLETCHER DECLARATION IN SUPPORT OF BDE AND MONTO OPPOSITION TO AMAZON’S MOTION TO
`COMPEL PRODUCTION OF DOCUMENTS OF THIRD PARTIES BDE/MONTO WITHHELD AS PRIVILEGED
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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 869-8 Filed 04/19/23 Page 3 of 5
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`would like to engage you for this matter.
`Can we get on the phone at your earliest convenience? At the very
`least, I would like to set up a call for Monday at a suitable time for
`you. [Emphasis added.]
`Mr. Welin told me about the request for representation and asked me to participate.
`4.
`He then forwarded to me this email early in the morning of Monday, April 5, 2021, for my
`preparation for the Zoom conference call scheduled for the afternoon of April 5, 2021. Mr. Welin
`also forwarded to me an email from Mr. Neumann with a link to documents for me to review prior
`to the Zoom meeting, which email also copied Messrs. Gersh and Markiles. I thereafter participated
`in a lengthy Zoom meeting that afternoon and further calls later that week. While I do not presently
`recall who said what regarding the SAM attorney Mr. Gersh being included in the communications,
`I was told and always understood that, consistent with Mr. Neumann’s first email to Mr. Welin
`(paragraph 3, above), SAM had been a long-time provider of legal services to at least BDE,
`including having prepared the original loan documents between the Secured Creditors and
`PersonalWeb, and the subsequent renewals of same.
`5.
`I was also informed that SAM had represented PersonalWeb in the Amazon litigation
`and was representing PersonalWeb on its appeal of the Amazon Judgment, but was not intending to
`represent PersonalWeb on any post judgment matters in the Amazon case, or with respect to the
`Secured Creditors. However, based on my discussions with Messrs. Neumann and CEO Kevin
`Bermeister of BDE and Mr. Markiles, who was a named partner in SAM and was the representative
`of two of the Secured Creditors, ECA and Claria, and Mr. Neumann’s inclusion of Mr. Gersh of
`SAM on the initial emails, I also understood and believed that Mr. Gersh, on behalf of SAM, was
`being consulted in the context of SAM’s prior involvement in preparation of the loan documents on
`behalf of the Secured Creditors and not as a representative of PersonalWeb. At no time did Mr.
`Gersh or anyone else state or suggest that he/SAM were participating in such Secured Creditor
`communications on behalf of PersonalWeb, and I never had that impression or belief.
`6.
`As I recall, throughout the month of April 2021, Mr. Gersh’s major involvement
`focused on the rights of the Secured Creditors under the loan documents, including with respect to
`the collateral that PersonalWeb had granted to the Secured Creditors. I understood at all times that
`3
`Case No. 5:18-md-02834-BLF
`4886778v3 | 101334-0002
`FLETCHER DECLARATION IN SUPPORT OF BDE AND MONTO OPPOSITION TO AMAZON’S MOTION TO
`COMPEL PRODUCTION OF DOCUMENTS OF THIRD PARTIES BDE/MONTO WITHHELD AS PRIVILEGED
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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 869-8 Filed 04/19/23 Page 4 of 5
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`SAM had prepared the original loan documents and the amendments to those loan documents. That
`collateral included PersonalWeb’s IP, including that involved in the underlying Amazon case, and
`in other patent litigation pending at the time, including various appeals. Communications with our
`Secured Creditor clients also included Mr. Gersh on emails and calls that discussed the potential of
`filing an action in California state court against PersonalWeb seeking, among other things, the
`appointment of a receiver over the personal property collateral granted by PersonalWeb to the
`Secured Creditors. A receivership would effectively put such assets in the protection of the state
`court appointing the receiver. No creditor --- including the Secured Creditors --- could get at such
`collateral without the receiver permitting such actions under the order of the state court appointing
`the receiver.
`I considered all of my communications that included Mr. Gersh to be privileged and
`7.
`confidential on behalf of the Secured Creditors. In fact, at one point when the subject of delivery
`of documents to Michael Weiss of PersonalWeb came up, and it was suggested that Mr. Gersh
`forward same to him, Mr. Gersh very strongly stated that he/SAM did not represent PersonalWeb
`in connection with post-judgment (non-appeal) matters; nor would he or it represent PersonalWeb
`in any litigation with the Secured Creditors.
`8.
`At that point, toward the latter part of April 2021, I learned that PersonalWeb had
`retained separate legal counsel, Ronald Richards, to represent it concerning post-judgment matters
`in the Amazon litigation and, separately, concerning the Secured Creditors. I had known Mr.
`Richards from another matter. On behalf of the Secured Creditors, I communicated with Mr.
`Richards, and only with Mr. Richards, about PersonalWeb (except when he told us to communicate
`directly with PersonalWeb’s representative Michael Weiss --- see below --- about the declaration
`draft for the Receivership Action about the PersonalWeb defaulted loans owed to the Secured
`Creditors). At no time did I consider my communications with Mr. Richards to be privileged or
`confidential.
`Mr. Richards told me that PersonalWeb had no defenses to enforcement by the
`9.
`Secured Creditors of their rights under the loan documents such that it would not defend any lawsuit
`in that regard. Mr. Richards also told me that PersonalWeb would not oppose the receivership
`4
`Case No. 5:18-md-02834-BLF
`4886778v3 | 101334-0002
`FLETCHER DECLARATION IN SUPPORT OF BDE AND MONTO OPPOSITION TO AMAZON’S MOTION TO
`COMPEL PRODUCTION OF DOCUMENTS OF THIRD PARTIES BDE/MONTO WITHHELD AS PRIVILEGED
`
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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 869-8 Filed 04/19/23 Page 5 of 5
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`application that I told him the Secured Creditors intended to file in the Receivership Action. I asked
`Mr. Richards to have PersonalWeb stipulate to the appointment of the receiver, given what he had
`told me. Mr. Richards refused, not because of any substantive objections, but, as he told me, because
`he would have to sign such a stipulation as PersonalWeb’s lawyer. He did not want to appear in the
`state court Receivership Action on behalf of PersonalWeb. (I am told that similar dynamics
`involving Mr. Richards have played out in this Court, with Mr. Richards refusing to appear.) Mr.
`Richards told me to draft a declaration for PersonalWeb’s principal, Michael Weiss to sign, in lieu
`of Richards signing a stipulation for the appointment of the receiver as PersonalWeb’s lawyer. We
`did so, making sure that the declaration for the appointment of the receiver established the Secured
`Creditors’ prima facie case against PersonalWeb, and for the appointment of the receiver.
`10. Mr. Gersh’s participation in the communications regarding the Secured Creditors
`trailed off toward the end of April 2021 once the discussions about the loan documents and the
`personal property collateral concluded and the decisions on the course of action about the
`Receivership Action were decided. Eventually such communications ceased.
`
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`I declare under penalty of perjury under the laws of the United States of America that the
`foregoing is true and correct and that this declaration was executed this 19th day of April, 2023, at
`Los Angeles County, California.
`
`MICHAEL GERARD FLETCHER
`
`
`
`
`
`Case No. 5:18-md-02834-BLF
`5
`4886778v3 | 101334-0002
`FLETCHER DECLARATION IN SUPPORT OF BDE AND MONTO OPPOSITION TO AMAZON’S MOTION TO
`COMPEL PRODUCTION OF DOCUMENTS OF THIRD PARTIES BDE/MONTO WITHHELD AS PRIVILEGED
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`FRANDZEL ROBINS BLOOM & CSATO, L.C. 
`
`1000 WILSHIRE BOULEVARD, NINETEENTH FLOOR 
`
`LOS ANGELES, CALIFORNIA 90017‐2427 
`
`(323) 852‐1000 
`
`