Case 5:21-cv-04653-BLF Document 123 Filed 05/03/22 Page 1 of 5
`
`BAKER BOTTS L.L.P.
`Jeremy J. Taylor (SBN 249075)
`jeremy.taylor@bakerbotts.com
`Arya Moshiri (SBN 324231)
`arya.moshiri@bakerbotts.com
`101 California St., Ste. 3600
`San Francisco, CA 94111
`Telephone: 415.291.6200
`Facsimile: 415.291.6300
`Kurt M. Pankratz (pro hac vice)
`Bethany R. Salpietra (pro hac vice)
`kurt.pankratz@bakerbotts.com
`bethany.salpietra@bakerbotts.com
`2001 Ross Ave., Ste. 900
`Dallas, TX 75201
`Telephone: 214.953.6500
`Facsimile: 214.953.6503
`Attorneys for Plaintiff Lyft, Inc.
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
`LYFT, INC.
`
`Plaintiff,
`
`v.
`AGIS SOFTWARE DEVELOPMENT LLC,
`Defendant.
`
`Case No. 5:21-cv-04653-BLF (SVK)
`
`PLAINTIFF LYFT, INC.’S STATEMENT
`REGARDING PRODUCTION OF AGIS,
`INC. DOCUMENTS IN EDTX ACTION
`
`Judge: Hon. Beth Labson Freeman
`Trial Date: October 16, 2023
`Courtroom: 3, Fifth Floor
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`LYFT’S STATEMENT RE PRODUCTION OF
`AGIS, INC.'S DOCUMENTS
`
`CASE NO. 5:21-cv-04653-BLF
`
`

`

`Case 5:21-cv-04653-BLF Document 123 Filed 05/03/22 Page 2 of 5
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Pursuant to this Court’s Order re Supplemental Briefing and Protective Order (“Order”)
`(Dkt. 117), Plaintiff Lyft, Inc. (“Lyft”) respectfully submits this Statement Regarding Production of
`AGIS, Inc. Documents in the Eastern District of Texas Action1 and whether they were produced
`pursuant to a subpoena as AGIS represented in the April 29, 2022 hearing. This submission follows
`Defendant AGIS Software Development LLC’s (“AGIS Software”) May 2, 2022 unauthorized
`correspondence with the Court, which incorrectly suggested that the parties resolved their dispute
`concerning AGIS Software’s Patent L.R. 3-2 production. See Ex. 1. As Lyft explained to AGIS
`Software on May 1, 2022, AGIS Software’s agreement to reproduce its Patent L.R. 3-2 production
`from the EDTX Action and settlement agreements does not resolve the parties’ dispute concerning
`AGIS Software’s Patent L.R. 3-2 production in the above-captioned matter. See Ex. 2. Notably,
`N.D. Cal. Patent L.R. 3-2 requires the production of seven additional categories of documents
`beyond those required by E.D. Tex. Patent L.R. 3-2, and thus AGIS Software’s agreement to
`produce its 3-2 documents from the EDTX Action does not fully satisfy the substantially larger
`scope of material required to be produced under N.D. Cal. Patent L.R. 3-2.
`Though AGIS Software’s May 2 submission to this Court purports to be a joint resolution
`(which, as Lyft notes above, it is not), it is actually a capitulation. Indeed, AGIS Software admits
`in its correspondence with the Court that it produced AGIS, Inc. documents in the EDTX Action on
`its own volition under no subpoena power. See Ex. 1 (explaining that “the AGIS, Inc. documents []
`were produced in EDTX . . . prior to issuance of a subpoena”). AGIS Software’s submission to this
`Court is but a thinly veiled attempt to conceal that it has possession, custody, and/or control over
`AGIS, Inc.’s documentation, as this fact would be fatal to AGIS Software’s contention that it is not
`the alter ego of AGIS, Inc. Based on the timing of production in the EDTX Action, it appears AGIS
`Software not only has possession but also control over AGIS, Inc.’s documentation, and thus should
`be required to produce those documents pursuant to N.D. Cal. Patent L.R. 3-2.
`As Lyft previewed for the Court during the April 29, 2022 hearing, AGIS Software produced
`numerous AGIS, Inc. documents in the EDTX Action months before Lyft served a subpoena on
`
`1 AGIS Software Development LLC v. Lyft, Inc., Case No. 2:21-cv-00072-JRG (later consolidated
`with 2:21-cv- 00072-JRG) (the “EDTX Action”).
`
`LYFT’S STATEMENT RE PRODUCTION OF
`AGIS, INC.'S DOCUMENTS
`
`1
`
`CASE NO. 5:21-cv-04653-BLF
`
`

`

`Case 5:21-cv-04653-BLF Document 123 Filed 05/03/22 Page 3 of 5
`
`AGIS, Inc. See, e.g., Ex. 3 at 1 (explaining that AGIS Software produced nearly 200 pages of AGIS,
`Inc.
`documents,
`specifically
`identifying
`AGISSOFTWARE_0007815,
`AGISSOFTWARE_0007754, and AGISSOFTWARE_0000027 as examples designated under the
`protective order); see also Decl. of B. Salpietra at ¶ 8 (confirming that AGISSOFTWARE_0007815,
`AGISSOFTWARE_0007754, and AGISSOFTWARE_0000027 were produced on May 19, 2021).
`On September 21, 2021, Lyft served a subpoena on AGIS, Inc. due to concerns that AGIS Software
`was selectively producing AGIS, Inc. materials. See Exs. 4 & 5 (subpoena and proof of service to
`AGIS, Inc.). On October 4, 2021, AGIS, Inc. issued Objections and Responses to Lyft’s subpoena
`agreeing to produce relevant documents and acknowledging that AGIS Software had already
`produced AGIS, Inc. documents in the EDTX Action. See, e.g., Ex. 6 at 6 (“AGIS, Inc. will produce
`relevant, responsive, non-privileged documents responsive to this request to the extent that such
`documents exist, are in AGIS, Inc.’s possession, custody, or control, and are located after reasonable
`search, and have not been produced by the parties to the above- captioned case”) (emphasis added).
`In fact, by the time AGIS, Inc. provided its objections and responses to Lyft’s subpoena, AGIS
`Software had already produced nearly 650,000 pages of documents (representing over 95% of its
`entire production in the EDTX Action), which included documents purportedly from AGIS, Inc.
`See Ex. 7 (September 29, 2021 email providing service of AGIS Software’s production volumes 7
`and 8 containing documents through AGISSOFTWARE_0648414); Decl. of B. Salpietra at ¶¶ 13-
`14.
`
`The primary reason that Lyft issued a subpoena to AGIS, Inc. during the pendency of the
`EDTX Action was to ensure that it received a complete production of AGIS, Inc. documents.
`Indeed, as AGIS Software is well aware, Lyft was concerned that AGIS Software was only making
`self-serving productions of AGIS, Inc. documents. See, e.g., Ex. 3 at 2 (“It would be improper for
`AGIS to use its corporate structure to selectively produce information from AGIS, Inc. that AGIS
`would like to rely on in this case while refusing to provide relevant information to Lyft from AGIS,
`Inc.”); Ex. 8 at 2 (“Rather than producing all minutes from the minute books of Advanced Ground
`Information Systems, Inc. and AGIS Holdings, Inc.—as Lyft understood AGIS to be doing—AGIS
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`LYFT’S STATEMENT RE PRODUCTION OF
`AGIS, INC.'S DOCUMENTS
`
`2
`
`CASE NO. 5:21-cv-04653-BLF
`
`

`

`Case 5:21-cv-04653-BLF Document 123 Filed 05/03/22 Page 4 of 5
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`has made a selective production of the requested minutes, and has produced minutes for only three
`meetings.”).
`Furthermore, AGIS Software also made AGIS, Inc.’s source code available for inspection in
`the EDTX Action prior to Lyft issuing its subpoena to AGIS, Inc. See Ex. 9 (showing that AGIS
`Software made source code available for inspection on August 13, 2021); Ex. 3 at 1-2 (clarifying
`that the code produced was source code of AGIS, Inc. and not AGIS Software). And, subsequently,
`AGIS Software made AGIS, Inc.’s LifeRing products available for inspection. See Ex. 10; see also
`Ex. 11 at 4 (identifying the “LifeRing products” as products of AGIS, Inc. that practice the patents-
`in-suit). AGIS Software’s production of AGIS, Inc.’s source code and products is particularly
`noteworthy as N.D. Cal. Patent L.R. 3-2 requires the production of “documents sufficient to show
`the operation of any aspects or elements of such instrumentalities the patent claimant relies upon as
`embodying any asserted claims,” which AGIS Software has not done in the instant case as of the
`date of this filing. See Patent L.R. 3-2. AGIS Software’s failure to produce these materials in this
`case despite previous production in the EDTX Action is one example of how AGIS Software’s N.D.
`Cal. Patent L.R. 3-2 production remains deficient even with AGIS Software’s agreement to produce
`its 3-2 documents from the EDTX Action.
`As demonstrated by the evidence cited herein, AGIS Software has possession, custody,
`and/or control over AGIS, Inc. documentation, including some of which AGIS Software should
`have produced pursuant to Patent L.R. 3-2 on February 25, 2022. And, although AGIS Software
`has agreed to produce some of this documentation (e.g., license agreements and 3-2 documents
`produced in the EDTX Action), there is still a live dispute between the parties concerning the
`production of documents pursuant to the seven other categories of documents not required by the
`E.D. Tex. Patent L.R. 3-2. Lyft respectfully submits that AGIS Software should be compelled to
`produce the full scope of documents required by N.D. Cal Patent L.R. 3-2, including the AGIS, Inc.
`documents demonstrated to be within AGIS Software’s possession, custody and/or control.
`
`Dated: May 3, 2022
`
`Respectfully submitted,
`
`By:
`
`/s/ Jeremy J. Taylor
`Jeremy J. Taylor
`
`LYFT’S STATEMENT RE PRODUCTION OF
`AGIS, INC.'S DOCUMENTS
`
`3
`
`CASE NO. 5:21-cv-04653-BLF
`
`

`

`Case 5:21-cv-04653-BLF Document 123 Filed 05/03/22 Page 5 of 5
`
`Jeremy J. Taylor (SBN 249075)
`Arya Moshiri (SBN 324231)
`jeremy.taylor@bakerbotts.com
`arya.moshiri@bakerbotts.com
`BAKER BOTTS L.L.P.
`101 California St., Ste. 3600
`San Francisco, CA 94111
`Telephone: 415.291.6200
`Facsimile: 415.291.6300
`Kurt M. Pankratz (pro hac vice)
`Bethany R. Salpietra (pro hac vice)
`kurt.pankratz@bakerbotts.com
`bethany.salpietra@bakerbotts.com
`BAKER BOTTS L.L.P.
`2001 Ross Ave., Ste. 900
`Dallas, TX 75201
`Telephone: 214.953.6500
`Facsimile: 214.953.6503
`
`Attorneys for Plaintiff Lyft, Inc.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`LYFT’S STATEMENT RE PRODUCTION OF
`AGIS, INC.'S DOCUMENTS
`
`4
`
`CASE NO. 5:21-cv-04653-BLF
`
`