PersonalWeb Technologies, LLC v. Twitch Interactive, Inc.

• Court: District Court, N.D. California
• Decided: July 20, 2021
• Docket: 5:18-cv-05619
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 IN RE PERSONALWEB Case No. 18-md-02834-BLF TECHNOLOGIES, LLC ET AL. PATENT 8 LITIGATION. Case No. 5:18-cv-00767-BLF 9 Case No. 5:18-cv-05619-BLF

10 ORDER ON (1) MOTION OF 11 AMAZON.COM, INC., AMAZON WEB SERVICES, INC., AND TWITCH 12 INTERACTIVE, INC. TO COMPEL COMPLIANCE WITH COURT ORDER 13 AMAZON.COM, INC. and AMAZON AND (2) JOINT DISCOVERY LETTER WEB SERVICES, INC., BRIEF RE DISCOVERY IN AID OF 14 EXECUTION OF JUDGMENT Plaintiffs, 15 Re: Dkt. Nos. 687, 689 v. 16 PERSONALWEB TECHNOLOGIES, LLC 17 and LEVEL 3 COMMUNICATIONS, LLC,

18 Defendants. PERSONALWEB TECHNOLOGIES, LLC 19 and LEVEL 3 COMMUNICATIONS, LLC, 20 Plaintiffs, 21 v.

22 TWITCH INTERACTIVE, INC., 23 Defendant.

24 Before the Court are: (1) the motion of Amazon.com, Inc., Amazon Web Services, Inc., 25 and Twitch Interactive, Inc. (collectively, “Amazon”) seeking to compel compliance with Judge 26 Freeman’s April 27, 2021 order requiring PersonalWeb Technologies, LLC to furnish information 27 in connection with Amazon’s attempt to enforce the judgment entered by the Court and requesting 1 leave to file a motion for sanctions (Dkt. 687 – the “Motion”); and (2) the Parties’ joint discovery 2 letter brief regarding PersonalWeb’s failure to respond to interrogatories and requests for 3 production served by Amazon in connection with enforcement of the judgment (Dkt. 689 – the 4 “Letter Brief”). The Motion was referred to the undersigned by Judge Freeman. Dkt. 690. The 5 Court held a hearing on the Motion and the Letter Brief on July 20, 2021. Todd Gregorian 6 appeared as counsel on behalf of Amazon; Jeffrey Gersh and Michael Sherman appeared as 7 counsel of record for PersonalWeb. 8 Having carefully reviewed the Motion, the Letter Brief, the case file, and relevant legal 9 authorities, the Court finds that PersonalWeb has waived its objections to post-judgment discovery 10 served by Amazon and ORDERS that within 10 days of the date of this order, PersonalWeb must 11 comply with the April 27, 2021 Order, respond fully and without objection to Amazon’s 12 interrogatories and requests for production, and produce all requested documents. 13 I. RELEVANT BACKGROUND 14 On October 28, 2020, the Court entered judgment against PersonalWeb. Dkt. 643. 15 Following entry of judgment, the Court issued an order awarding Amazon attorney fees and costs 16 for work pre-dating February 2020. Dkt. 648. The Court later awarded Amazon additional 17 attorney fees and costs for expenses incurred between February 2020 and February 2021. Dkt. 18 656.1 19 On April 19, 2021, after both attorney fees awards were issued, Amazon served 20 interrogatories and requests for production seeking information about PersonalWeb’s assets in aid 21 of enforcement of the judgment against PersonalWeb. Dkt. 661-1¶ 3. In the same timeframe, 22 Amazon’s counsel made informal requests asking PersonalWeb’s counsel to identify bank and 23 financial accounts for enforcement purposes. Id. On April 26, 2021, Amazon filed an ex parte 24 application for an order requiring PersonalWeb to appear for a judgment debtor’s examination. 25 Dkt. 661-662. 26 On April 27, Judge Freeman issued an order on Amazon’s ex parte application, which 27 1 stated as follows: 2 • PersonalWeb shall appear for a debtor’s examination before this Court, located at 280 3 South 1st Street, San Jose, CA 95113 at the time and date specified in the Order to Appear 4 for Examination; • PersonalWeb shall provide Amazon bank or financial accounts within PersonalWeb’s 5 possession, including current balances, by May 7, 2021; and • PersonalWeb shall produce documents responsive to Amazon’s First Set of Requests for 6 Production of Documents Pursuant to FRCP 69 and CCP § 708.030 no later than 30 days from the date of this Order. 7

8 Dkt. 664 (the “April 27 Order”). On the same date, Judge Freeman signed and issued an order on 9 California Judicial Council Form AT-138/EJ-125 requiring PersonalWeb to appear for a judgment 10 debtor’s examination. Dkt. 665 (the “Form Order”). 11 On May 13, 2021, Judge Freeman held a Case Management Conference (“CMC”). 12 Among the topics discussed at the CMC were whether PersonalWeb could be compelled to appear 13 for a judgment debtor’s examination in this District and whether the post-judgment written 14 discovery had been properly served. Dkt. 686 (CMC Transcript) at 15-16, 18-19. Judge Freeman 15 indicated that the post-judgment written discovery issues should be raised with the undersigned 16 Magistrate Judge. Id. at 19. Following the Case Management Conference, Judge Freeman issued 17 an order vacating the Form Order requiring a judgment debtor’s examination at Dkt. 665. 18 Dkt.675. 19 On May 21, 2021, Amazon filed the Motion now before the Court, which seeks to compel 20 compliance with the April 27 Order and which Judge Freeman referred to the undersigned. Dkt. 21 687, 690. Specifically, the Motion seeks to compel PersonalWeb to provide the bank or financial 22 account information informally requested by Amazon, which Judge Freeman ordered to be 23 provided in the April 27 Order. Dkt. 687-1. The Motion also asks for leave to file a motion for 24 sanctions. Id. PersonalWeb did not file an opposition to the Motion by the deadline or at any time 25 thereafter. See Dkt. 692. On June 1, 2021, the Parties jointly filed the Letter Brief, in which 26 Amazon asks the Court to compel PersonalWeb to respond to the interrogatories and document 27 requests served on April 19, 2021. Dkt. 689; 689-3. 1 Beginning on or around April 22, 2021, attorneys at the law firm that represented 2 PersonalWeb in this case, Stubbs Alderton & Markiles (“SAM”), informed Amazon that they do 3 not represent PersonalWeb in post-judgment proceedings in this case. See Dkt. 659-1. According 4 to SAM, PersonalWeb is represented in post-judgment proceedings by attorney Ronald Richards. 5 See Dkt. 689 at 3. On June 25, 2021, Judge Freeman conditionally granted SAM’s motion to 6 withdraw, stating that “SAM may withdraw upon notice of appearance by Ronald Richards, 7 PersonalWeb’s counsel for post-judgment matters.” Dkt. 694. Mr. Richards has not filed an 8 appearance in this case, nor did he participate in the hearing. Accordingly, SAM remains counsel 9 of record for PersonalWeb. 10 II. DISCUSSION 11 A. Motion 12 As discussed above, the April 27 Order requires PersonalWeb to (1) appear for a judgment 13 debtor’s exam; (2) provide financial and bank account information; and (3) produce documents 14 responsive to Amazon’s requests for production. Although Judge Freeman subsequently vacated 15 the Form Order for a judgment debtor’s examination, she did not vacate the portions of the April 16 27 Order that required PersonalWeb to provide information about its bank and financial accounts 17 and to produce documents responsive to Amazon’s requests for production. PersonalWeb has not 18 opposed the motion to compel it to comply with those portions of the April 27 Order. 19 Accordingly, the Court GRANTS Amazon’s motion to compel PersonalWeb to comply with the 20 April 27 Order. 21 B. Letter Brief 22 In the Letter Brief, Amazon asks the Court to compel PersonalWeb to respond and produce 23 documents in response to interrogatories and requests for production served on April 19, 2021. 24 Dkt. 689. In its portion of the Letter Brief, SAM and PersonalWeb offer several reasons why 25 PersonalWeb should not be compelled to respond to Amazon’s written discovery.2 26 2 Although SAM states in a portion of the Letter Brief entitled “SAM’s Position” that it has been 27 “discharged by its client PersonalWeb for purposes of handling post judgment collection 1 First, SAM challenges the method by which the discovery was served—specifically, 2 service of the discovery on SAM. SAM argues that Amazon’s discovery was “improperly served 3 based on California law which requires personal service of such discovery on the judgment 4 debtor.” Dkt. 689 at 3 (citing Cal. Code Civ. Proc. § 684.020 and Taghizadeh v. Azadi, 2003 WL 5 504121, at *5 (Cal. Ct. App. Feb. 26, 2003)). SAM’s argument regarding the method of service 6 ignores Federal Rule of Civil Procedure 69, which provides that, “[i]n aid of the judgment or 7 execution, the judgment creditor … may obtain discovery from any person—including the 8 judgment debtor—as provided in these rules or by the procedure of the state where the court is 9 located.” Fed. R. Civ. Proc. 69(a)(2) (emphasis added). Accordingly, Amazon was not required 10 to comply with California’s personal service rules; it could alternatively serve discovery as 11 provided in the Federal Rules. 12 In the Letter Brief, Amazon states that it “served the document requests on SAM through 13 ECF in compliance with Rule 5(b)(1).” Dkt. 689 at 2. The meaning of this statement is unclear; 14 neither the document requests nor interrogatories were filed on ECF so PersonalWeb did not 15 receive service of them by that mechanism. In any event, the certificates of service on the 16 interrogatories and requests for production indicate they were served by email on SAM. Dkt. 689- 17 1 and 689-2. Rule 5(b)(2)(E) states that service can be effected by “sending [a paper] by other 18 electronic means that the person consented to in writing.” Neither PersonalWeb nor SAM dispute 19 that PersonalWeb gave consent to receive service electronically, and in fact SAM admits that it 20 received the discovery requests and states that it sent them to PersonalWeb and Mr. Richards the 21 same day SAM received it. Dkt. 689 at 4. Amazon states that it also served the discovery on Mr. 22 Richards by certified mail and on PersonalWeb’s registered agent by personal delivery. Dkt. 673 23 at 1; Dkt. 668; Dkt. 670. Therefore, the Court concludes that service of the discovery was proper. 24 Second, SAM argues that it does not represent PersonalWeb on post-judgment matters, 25 apparently in another effort to prove that service of the written discovery on SAM was ineffective. 26 Dkt. 689 at 4. However, “[c]ounsel may not withdraw from an action until relieved by order of 27 1 Court after written notice has been given reasonably in advance to the client and to all other 2 parties who have appeared in the case.” Civil Local Rule 11-5(a). Here, SAM’s motion to 3 withdraw was granted on the condition that Mr. Richards make an appearance in this action on 4 behalf of PersonalWeb, which he has not done. Moreover, this order conditionally granting the 5 motion to withdraw was not entered until after the discovery at issue was served on SAM. 6 Accordingly, Amazon properly served the written discovery on PersonalWeb by sending it to 7 SAM on April 19, 2021. See Fed. R. Civ. Proc. 5(a)(1)(C) (requiring service of discovery papers 8 on every party); Fed. R. Civ. Proc. 5(b)(1) (“If a party is represented by an attorney, service under 9 this rule must be made on the attorney unless the court orders service on the party.”); see also 10 Wordtech Sys., Inc. v. Integrated Network Solutions, Inc., No. CIV S-04-1971 MCE EFB, 2009 11 WL 3126409, at *2 (E.D. Cal. Sep. 24, 2009) (“Because [the attorney who was served with post- 12 judgment discovery] was attorney of record for [the judgment debtor] at the time the discovery 13 was served on him, such service was proper and effective as to the defendant.”). This outcome is 14 consistent with the principle that the record of representation must be clear for the benefit of both 15 the Court and the litigants, and “[a] party represented by counsel includes a party who has counsel 16 of record whether or not that counsel was in fact authorized to act for the party.” Wordtech, 2009 17 WL 3126409, at *2 (internal quotation marks and citations omitted). Moreover, both Amazon and 18 SAM state that they sent the discovery to Mr. Richards. Dkt. 668; Dkt. 673 at 1; Dkt. 689 at 4. 19 Third, PersonalWeb argues that “at the time of the service of the document demand at 20 issue, the case was already dismissed and closed” and thus “[t]he proper enforcement mechanisms 21 against an out of state judgment debtor are controlled by California law.” Dkt. 689 at 5. 22 PersonalWeb offers no citation to legal authority for this proposition, which in any event is 23 without merit. Rule 69(a)(2) expressly contemplates post-judgment discovery proceedings. 24 Moreover, “[a]fter entering a judgment, a district court retains ancillary jurisdiction to ensure the 25 judgment’s execution.” First Tech. Capital, Inc. v. Airborne, Inc., 380 F. Supp. 3d 217, 220 26 (W.D.N.Y. 2019) (citations omitted). “Put simply, the fact that a case has been closed or 27 terminated is not an obstacle to postjudgment discovery.” Id. (internal quotation marks and 1 Accordingly, the Court finds that the interrogatories and requests for production were 2 || properly served on PersonalWeb. PersonalWeb failed to respond by the deadline and therefore 3 has waived its objections. See Fed. R. Civ. Proc. 33(b)(4); Richmark Corp. v. Timber Falling 4 Consultants, 959 F.3d 1468, 1473 (9th Cir. 1992); Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 5 1981). The Court therefore ORDERS PersonalWeb to respond without objection to the 6 || interrogatories and requests for production and to produce documents in response to the requests 7 for production. 8 C. SANCTIONS 9 Amazon’s request for sanctions is DENIED WITHOUT PREJUDICE. Amazon may 10 file a motion for sanctions if PersonalWeb does not provide the information, documents, and 11 discovery responses as required under this order. 12 || I. CONCLUSION 13 For the reasons discussed, the Court ORDERS that within 10 days of the date of this 14 || order, PersonalWeb must (1) provide the bank and financial account information and documents 3 15 required under the April 27 Order,(2) respond without objection to the interrogatories and requests a 16 || for production served on April 19, 2021, and (3) produce all documents requested in the requests 3 17 for production. 18 SO ORDERED. 19 Dated: July 20, 2021 20 21 Session ru SUSAN VAN KEULEN 22 United States Magistrate Judge 23 24 25 26 27 28