IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`KOSS CORPORATION,
`Plaintiff,
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`v.
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`APPLE INC,
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`Defendant.
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`§
`§
`§
`§
`§
`§
`§
`§
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`6-20-CV-00665-ADA
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`ORDER DENYING DEFENDANT’S MOTION TO TRANSFER
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`Came on for consideration this date is Apple Inc.’s Motion to Transfer to the Northern
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`District of California (“NDCA”) pursuant to 28 U.S.C. § 1404(a). After careful consideration of
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`the Motion, the Parties’ briefs, and the applicable law, the Court DENIES Defendant Apple’s
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`Motion to Transfer.
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`I. INTRODUCTION
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`A party seeking a transfer to an allegedly more convenient forum carries a significant
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`burden. Babbage Holdings, LLC v. 505 Games (U.S.), Inc., No. 2:13-CV-749, 2014 U.S. Dist.
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`LEXIS 139195, at *12–14 (E.D. Tex. Oct. 1, 2014) (stating the movant has the “evidentiary
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`burden” to establish “that the desired forum is clearly more convenient than the forum where the
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`case was filed” (emphasis added)). The burden that a movant must carry is not that the
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`alternative venue is more convenient, but that it is clearly more convenient. In re Volkswagen,
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`Inc., 545 F.3d 304, 314 n.10 (5th Cir. 2008) (hereinafter “Volkswagen II”) (emphasis added).
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`Apple moved to have this case transferred to NDCA. The Court finds that Apple fails to meet
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`the heavy burden of showing that NDCA is a clearly more convenient venue.
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`A. Section 1404 Transfer
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`II. LEGAL STANDARD
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`Title 28 U.S.C. § 1404(a) provides that, for the convenience of parties and witnesses, a
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`district court may transfer any civil action to any other district or division where it might have
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`been brought or to any district or division to which all parties have consented. “Section 1404(a)
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`is intended to place discretion in the district court to adjudicate motions for transfer according to
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`an ‘individualized, case-by-case consideration of convenience and fairness.’” Stewart Org., Inc.
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`v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622
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`(1964)). The party moving for transfer carries the burden of showing good cause. Volkswagen II,
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`545 F.3d at 314 (“When viewed in the context of § 1404(a), to show good cause means that a
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`moving party, in order to support its claim for a transfer, must . . . clearly demonstrate that a
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`transfer is ‘[f]or the convenience of parties and witnesses, in the interest of justice.’”) (quoting
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`28 U.S.C. § 1404(a)).
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`“The preliminary question under § 1404(a) is whether a civil action ‘might have been
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`brought’ in the destination venue.” Volkswagen II, 545 F.3d at 312. If so, in the Fifth Circuit, the
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`“[t]he determination of ‘convenience’ turns on a number of public and private interest factors,
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`none of which can be said to be of dispositive weight.” Action Indus., Inc. v. U.S. Fid. & Guar.
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`Co., 358 F.3d 337, 340 (5th Cir. 2004). The private factors include: “(1) the relative ease of
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`access to sources of proof; (2) the availability of compulsory process to secure the attendance of
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`witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems
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`that make trial of a case easy, expeditious and inexpensive.” In re Volkswagen AG, 371 F.3d 201,
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`203 (5th Cir. 2004) (hereinafter “Volkswagen I”) (citing to Piper Aircraft Co. v. Reyno, 454 U.S.
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`235, 241 n.6 (1982)). The public factors include: “(1) the administrative difficulties flowing from
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`court congestion; (2) the local interest in having localized interests decided at home; (3) the
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`familiarity of the forum with the law that will govern the case; and (4) the avoidance of
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`unnecessary problems of conflict of laws of the application of foreign law.” Id. Courts evaluate
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`these factors based on “the situation which existed when suit was instituted.” Hoffman v. Blaski,
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`363 U.S. 335, 343 (1960).
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`A plaintiff’s choice of venue is not an independent factor in the venue transfer analysis,
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`and courts must not give inordinate weight to a plaintiff’s choice of venue. Volkswagen II, 545
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`F.3d at 313 (“[W]hile a plaintiff has the privilege of filing his claims in any judicial division
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`appropriate under the general venue statute, § 1404(a) tempers the effects of the exercise of this
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`privilege.”). However, “when the transferee venue is not clearly more convenient than the venue
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`chosen by the plaintiff, the plaintiff’s choice should be respected.” Id. at 315; see also QR Spex,
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`Inc. v. Motorola, Inc., 507 F. Supp. 2d 650, 664 (E.D. Tex. 2007) (characterizing movant’s
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`burden under § 1404(a) as “heavy”) (emphasis added).
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`III. BACKGROUND
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`Defendant Apple is a California Corporation with its principal place of business in
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`Cupertino, California. Pl.’s Compl., ECF No. 1 at ¶ 5. Apple’s second corporate campus is
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`located in Austin, Texas. Id. Apple also has several retail stores within WDTX, notably two in
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`Austin, and three others in San Antonio and El Paso.1 Apple, among other things, markets audio
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`accessories, including the Apple HomePod, the Apple AirPods and the Apple Beats by Dre. Id.
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`at ¶ 8.
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`Plaintiff Koss Corp. is a Delaware Corporation with its principal place of business in
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`Milwaukee, Wisconsin. Id. at ¶ 2. Koss markets headphones and audio accessories that are at
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`1Apple Inc., https://www.apple.com/retail/storelist/ (last visited April 21, 2021).
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`3
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`sold at various retail chains throughout the country, including Walmart stores. Id. at ¶ 3. Koss
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`specifically markets the Striva line of wireless headphones. Id. at 42.
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`On July 22, 2020, Koss filed this lawsuit alleging patent infringement against Apple
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`for making, having made, using, importing, supplying, distributing, selling, or offering to
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`sell its products and/or systems, including systems in which its AirPods and/or wireless Beats
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`by Dre-branded headphones are incorporated (the “Accused Headphones”). Pl.’s Compl. at ¶¶
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`79–82, 107–110, 121–124, 135–138. Koss also claims patent infringement alleging that Apple
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`has made, had made, used, imported, supplied, distributed, sold, or offered for sale products and/
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`or systems, including systems in which its HomePod and/or Apple Watch products and/or
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`systems are incorporated (the “Accused Networking Devices”). Pl.’s Compl. at ¶¶ 93–96.
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`Specifically, Koss asserts infringement of U.S. Patent Nos. 10,206,025 (“’025 patent”);
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`10,298,451 (“’451 patent”); 10,469,934 (“’934 patent”); 10,491,982 (“’982 patent”); and
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`10,506,325 (“’325 patent”). Id. Koss asserts that these patents generally relate to “the
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`wireless headphone and wearable technology space.” Id. at ¶ 69.
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`On December 21, 2020, Apple filed this Motion to Transfer Venue under 28 U.S.C.
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`§ 1404(a). Def.’s Mot. at 1. Specifically, Apple requests that the Court transfer the instant
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`case from the Western District of Texas (“WDTX”) to the Northern District of California
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`(“NDCA”). Id.
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`IV. ANALYSIS
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`As a preliminary matter, neither party contests the fact that venue is proper in NDCA
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`and that this case could have been filed there.
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`A. The Private Interest Factors Weigh In Favor of Transfer.
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`i. The Relative Ease of Access to Sources of Proof
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`After carefully reviewing the Parties’ arguments, the Court finds that the relative ease of
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`access to sources of proof factor slightly favors of transfer. “In considering the relative ease of
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`access to proof, a court looks to where documentary evidence, such as documents and physical
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`evidence, is stored.” Fintiv, 2019 WL 4743678, at *2. “[T]he question is relative ease of access,
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`not absolute ease of access.” In re Radmax, 720 F.3d 285, 288 (5th Cir. 2013) (emphases in
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`original).
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`Apple argues that the location of its own sources of proof strongly favor transfer. Def.’s
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`Mot. at 6. Specifically, Apple delineates three categories of documents: confidential source code;
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`technical documents pertaining to the design and engineering of the accused features; and
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`financial, marketing and licensing documents relevant to the accused products. Id. at 6–7. Apple
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`asserts that all three of these relevant document categories are located in California or on servers
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`in California. Id. Apple further assures this Court that all documents and source code outside
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`California are either located in foreign countries or in U.S. States other than Texas. Id. at 7.
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`Additionally, Apple asserts that its employees researched, developed, and tested the accused
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`products and features almost exclusively in California and performed none of these activities in
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`Texas. Id. While Apple acknowledged that it has a second campus in Austin, Apple contends that
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`there are no sources of proof within this District. Id. at 8.
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`In response, Koss asserts that the first factor—access to sources of proof—is neutral. Pl.’s
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`Opp. at 5. Regarding Apple’s documents, Koss points to statements made by Apple’s employee,
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`Mark Rollins, who stated that Apple “does not have any unique working files or documents . . .
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`located in the WDTX.” Id. (citing Rollins Decl., ECF No. 34-2, ¶ 8). Koss asserts that when
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`questioned further,
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`. Nevertheless, Koss argues that Apple employees in Austin
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`would have access to documents stored on its California servers. Id. at 6.
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`Regarding Koss’s documents, Koss notes that while its offices are primarily located in
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`the Midwest, it outsources its IT needs to a Texas company, Synectics. Id. Koss asserts that
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`Synectics maintains Koss’s website, the servers that backup all of Koss’s electronic files,
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`including product development and support files for Koss’s Strive line of wireless headphones.
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`Id. at 2. Therefore, Koss asserts that all of its own relevant documents are on servers located in
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`Texas. Id. at 6.
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`In its Reply, Apple points out that Koss neither points to any specific documents located
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`on its Texas IT vendor’s servers nor states what Apple documents or information are found in the
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`WDTX. Id. at 2. Moreover, Apple asserts that Synectics’s servers are located in Dallas, outside
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`the Western District of Texas, and, thereby, irrelevant to the instant inquiry. Id. (citing In re
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`Apple, 979 F.3d 1332, 1346 (Fed. Cir. 2020)). Moreover, Apple claims that Koss’s argument—
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`that the location of Apple’s documents is irrelevant because of the ease of transferring electronic
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`documents—contradicts Fifth Circuit precedent. Id.
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`The Court agrees with Apple that this factor favors transfer, but only slightly. Generally,
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`in patent infringement cases, the bulk of the relevant evidence usually comes from the accused
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`infringer. See In re Genetech, Inc., 556 F.3d 1338, 1345 (Fed. Cir. 2009). Apple has specified
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`sources of proof relevant to infringement—Apple source code and technical, marketing, and
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`licensing documentation—that are located in NDCA. Def.’s Reply at 2. However, the Court
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`notes that this is a unique type of patent infringement case involving market competitors. Both
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`Koss and Apple market headphone and audio accessory products, notably competing lines of
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`wireless headphone products. As such, Koss’s documents—especially those involving the
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`competing Striva products—are more heavily implicated by the damages analysis in this case
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`than it would be for one between non-competitors. See 35 U.S.C. § 284; see also WesternGeco
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`LLC v. ION Geophysical Corp., 138 S. Ct. 2129, 2139, 201 L. Ed. 2d 584 (2018) (a patent
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`owner’s recovery can include lost profits). While noting that Koss’s documents carry particular
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`significance here, by Koss’s own admission, the servers housing all of Koss’s electronic
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`documents are not located in this District, but in the Northern District of Texas. Pl.’s Opp. at 2.
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`The Court acknowledges that this District is nearer to the Northern District of Texas and,
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`therefore, the ease of access to Koss’s documents would be greater in this District than NDCA.
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`However, Koss incorrectly relies on the dicta of this Court’s decision in Fintiv. See Pl.’s
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`Opp. at 5 (“As this Court has noted, in the modern electronic world, the “location” of documents
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`no longer has a meaningful impact on convenience.”). Indeed, in Fintiv, this Court noted that
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`“this factor is at odds with the realities of modern patent litigation.” Fintiv v. Apple Inc., No.
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`6:18-cv00372-ADA, 2019 WL 4743678, at *4 (W.D. Tex. Sep. 13, 2019). Despite this fact, the
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`Fifth Circuit has not elected to change its test for resolving this factor—which relies on physical
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`location of electronic documents—and this Court is bound by the Fifth Circuit’s precedent.
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`This Court, having made its determination of this factor solely on the basis of binding
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`precedent, wishes to reiterate the concern it outlined in Fintiv as to the Fifth Circuit’s precedent
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`on this factor. See Fintiv, Inc. v. Appl Inc., 6:18-cv-00372-ADA, 2019 WL 4743678, at *4 (W.D.
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`Tex. Sep. 13, 2019). In this Court’s experience, the vast majority of produced documents in
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`patent litigation cases are electronic documents pulled from a party’s server. Documents stored
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`on a server in Mountain View, California can be as easily accessed by a court in Alexandria,
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`Virginia as they can be by a Court in San Jose, California. Thus, in this Court’s opinion the
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`physical location of electronic documents bears little weight in the determination of a
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`convenient venue. Consequently, the Fifth Circuit inserts a rigid test into an otherwise flexible
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`analysis.
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`Retaining the present framework subverts rather than promotes the stated goals of
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`motions to transfer venue. In close cases, the relative ease of access to sources of proof may
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`serve as the deciding factor in a Court’s analysis. Thus, a transferee venue that is in fact no more
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`convenient than the transferor venue, nonetheless, may appear on paper to be clearly more
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`convenient. This thumbs the scales in the movant’s favor as to a motion that purportedly defers
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`to the plaintiff’s choice of venue when the two venues are comparably convenient. See In re
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`Volkswagen of Am., Inc., 545 F.3d 304, 314 (5th Cir. 2008) (noting that the plaintiff’s choice of
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`venue should be respected when the transferee venue is not clearly more convenient that the
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`transferor venue). Although this Court would not decide this case differently were the standard
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`for this factor changed, this Court restates its hope that the Fifth Circuit will considering
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`revisiting and amending its precedent to explicitly give courts the discretion to take into
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`consideration the ease of accessing electronic documents in modern times.
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`In weighing Apple’s relevant documents located in NDCA against Koss’s relevant
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`documents located near WDTX, the Court finds that the relative ease of access to sources of
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`proof factor slightly favors transfer.
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`ii. The Availability of Compulsory Process to Secure the Attendance of Witnesses
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`After carefully reviewing the Parties’ arguments, the Court determines that the
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`availability of compulsory process to secure the attendance of witnesses factor strongly weighs
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`against transfer. “In this factor, the Court considers the availability of compulsory process to
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`secure the attendance of witnesses, particularly non-party witnesses whose attendance may need
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`to be secured by a court order.” Fintiv, 2019 WL 4743678, at *5 (citing Volkswagen II, 545 F.3d
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`at 316). A court may subpoena a witness to attend trial only (a) “within 100 miles of where the
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`person resides, is employed, or regularly transacts business in person,”; or (b) “within the state
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`where the person resides, is employed, or regularly transacts business in person.” Fed. R. Civ. P.
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`45(c)(1)(A), (B); Gemalto S.A. v. CPI Card Grp. Inc., No. 15-CA-0910, 2015 WL 10818740, at
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`*4 (W.D. Tex. Dec. 16, 2015). Moreover, the ability to compel live trial testimony is crucial for
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`evaluating a witnesses’ testimony. Aguilar-Ayala v. Ruiz, 973 F.2d 411, 419 (5th Cir. 1992).
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`Apple contends that the availability of compulsory process favors transfer because one
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`relevant third-party witness, Michael Sagan, lives near Sacramento, California. Def’s Mot. at 9.
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`Mr. Sagan is an inventor of three out of four of the asserted patents. Id. Conversely, Apple
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`asserts that there are no known relevant third-party witnesses within the subpoena power of this
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`Court. Id.
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`In response, Koss claims that Mr. Sagan has indicated he is willing to travel to Texas at
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`Koss’s expense; therefore, Mr. Sagan is a willing witness and should not be considered under
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`this factor. Pl.’s Opp. at 7. Importantly, Koss identifies two third-party witnesses, Thomas
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`Petrone and Hytham Alihassan, who are unwillingly to appear for trial and are subject to the
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`subpoena power of this Court. Id. at 7. Mr. Petrone is the co-owner of Koss’s IT vendor
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`Synectics who lives and works in Austin and declared that he is unwilling to travel to California
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`for trial. Id. at 2
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`. Mr. Alihassan is a former
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`Embedded Software and Firmware Engineer at Red Fusion, the company that initially developed
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`the firmware for Koss’s Striva line of headphones. Id. at 7. Koss argues that Mr. Alihassan lives
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`and works in Austin and is, therefore, subject to this Court’s subpoena power. Id. Koss also
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`argues that Mr. Alihassan is a current employee of a Koss competitor Plantronics, Inc. and is
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`unlikely to testify willingly. Id.
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`In its Reply, Apple largely reiterates its arguments adding that Koss provides no evidence
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`that Mr. Sagan will willingly travel to WDTX to testify. Apple asserts that even if Mr. Sagan is
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`currently willing to travel to WDTX, Koss has submitted no evidence that Mr. Sagan will feel
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`the same way when called upon at trial. Id. Apple additionally attacks the relevance of Koss’s
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`WDTX witnesses and posits that Koss failed to state what specific information or documents it
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`expects these witnesses to produce. Id. Apple claims that Mr. Petrone’s support of Koss’s
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`litigation team and his unwillingness to travel to NDCA are irrelevant to determining this factor.
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`Id. at 4–5. Apple also argues that Mr. Alihassan merely worked for a company that at one point
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`worked on Koss’s products; consequently, Apple infers that Mr, Alihassan likely has little to no
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`information relevant to this case. Id. at 4. Additionally, Apple, for the first time in its Reply,
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`identifies two other California-based witnesses, Clause Zellweger and Jay Wilson. Id. at 3. Mr.
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`Zellweger and Mr. Wilson are inventors of prior art that Apple plans to present at trial. Id.
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`After careful consideration of the Parties’ arguments, this Court determines that this
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`factor strongly weighs against transfer. The Court attaches weight to this factor to the extent that
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`the third-party witnesses are unwillingly to testify. Turner v. Cincinnati Insurance Co., No. 6:19-
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`cv-642-ADA-JCM, 2020 WL 210809, at *3 (W.D. Tex. Jan. 1, 2020) (“[T]he compulsory
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`process factor weighs against transfer when neither side claims a witness would be unwilling to
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`testify.”) (citing Peregrine Myanmar Ltd. V. Segal, 89 F.3d 41, 47 (2d Cir. 1996)). Importantly,
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`this Court has made clear that the burden is on the movant to prove unwillingness such that the
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`compulsory process of another venue favors transfer. See Turner v. Cincinnati Insurance Co.,
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`No. 6:19-cv-642, 2020 WL 210809, at *3 (W.D. Tex. Jan. 14, 2020) (noting that where no party
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`has alleged or shown a witness’s unwillingness, this factor weighs against transfer). The Parties
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`have identified five third-party witnesses relevant to the instant analysis: Mr. Sagan, Mr.
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`Zellweger, Mr. Wilson, Mr. Petrone, and Mr. Alihassan.
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`1. Koss’s Inventor—Mr. Michael Sagan
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`First, Koss has represented to the Court that Mr. Sagan is willing to travel to WDTX and
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`will do so at Koss’s expense. Pl.’s Opp. at 3, 7. Apple asserts that this representation “is no
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`substitute for evidence” and, therefore, cannot be relied upon to affect the transfer analysis.
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`Def.’s Reply at 3 (citing Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 1284 (Fed. Cir.
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`2005). Apple cites Enzo Biochem in support of its statement that “attorney representation ‘is no
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`substitute for evidence.’” The Court notes that Enzo Biochem does not, in fact, state that attorney
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`representation is no substitute for evidence, but that “attorney argument is no substitute for
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`evidence.” Enzo Biochem, 424 F. 3d at 1284. Additionally, Enzo Biochem is inapposite to
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`the instant case. In Enzo Biochem, the Court found that, in the summary judgment context,
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`the movant had sufficiently met its initial burden and the nonmovant’s arguments alone
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`were insufficient to meet its burden to produce some evidence refuting the movant’s claim. Id.
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`Here, Koss does not present the Court with mere argument or suggestion of Mr. Sagan’s
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`willingness to testify. Koss has affirmatively represented to the Court that Mr. Sagan is
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`willing to travel to Texas to testify at Koss’s expense. Such representations were certified to
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`the Court and made under Rule 11. Fed. R. Civ. Pro. 11(a)–(b) (noting that by presenting to
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`the court a document signed by an attorney, the person providing the document certifies,
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`to the best of their knowledge, that factual contentions have evidentiary support or denials of
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`factual contentions are warranted on the evidence).
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`Nevertheless, Apple, as the movant, carries the burden to prove unwillingness to testify.
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`Even if Koss’s representations were insufficient, Apple presents no evidence of its own
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`supporting its assertion that Mr. Sagan is, or will be, unwilling to testify. See Def.’s Mot;
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`see also Def.’s Reply. In fact, Apple never denies that Mr. Sagan is unwilling to testify but
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`instead attempts to impose an improper burden on Koss to establish that Mr. Sagan will
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`irrevocably testify at trial. Id. At the very most, Apple points out that Koss does not offer
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`evidence that Mr. Sagan will not change his mind. See Def.’s Reply at 3. Koss does not have
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`the burden to prove that Mr. Sagan will not change his mind. Such a burden would be
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`impractical and likely impossible to satisfy, with its equivalent being every witness pledging
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`under oath to appear at trial regardless of any and all circumstances that occur between
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`briefing on a motion and trial itself.
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`Apple does not present evidence of or even allege that Mr. Sagan is an unwilling witness
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`while Koss states under threat of sanctions—in a Rule 11 representation to this Court—that Mr.
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`Sagan has represented that he is a willing witness. See Fed. R. Civ. P. 11(b). Therefore,
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`Mr. Sagan is not an unwilling witness properly examined under this factor.
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`2. Apple’s Prior-Art Witnesses—Mr. Zellweger and Mr. Wilson
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`Next, this Court examines Apple’s two prior art witnesses. In the Court’s experience,
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`such witnesses are unlikely to be called upon to testify. Fintiv, 2019 WL 4743678, at *5 (noting
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`that because prior art witnesses are very unlikely to testify, such witnesses do not count for
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`or against transfer) (citing East Tex. Boot Co., LLC v. Nike, Inc., No. 2:16-cv-0290-JRG-RSP,
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`2017 WL 2859065, at *4 (E.D. Tex. Feb. 15, 2017)). As witnesses only relevant in the context of
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`prior art, Mr. Zellwegger or Mr. Wilson are highly unlikely to testify at trial. Furthermore,
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`Apple, again, fails to carry its burden as the movant to establish Mr. Zellwegger or Mr.
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`Wilson as unwilling witnesses nor does Apple even claim that these witnesses would be
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`unwilling to travel to this District.
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`3. Koss’s Third-Party Witnesses—Mr. Petrone and Mr. Alihassan
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`This Court now turns to Koss’s witnesses. Koss identifies two third-party witnesses
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`within WDTX: Mr. Petrone and Mr. Alihassan. Pl.’s Opp. at 7. Mr. Petrone is the co-owner
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`of Koss’s IT vendor Synectics, who lives and works in Austin and has unequivocally stated that
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`he will not testify in NDCA. Id. at 2 (citing Petrone Decl., ECF No. 52-3 at ¶ 16). The Court
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`finds that Koss’s IT vendor serves a primarily archival role, it is unlikely that Mr. Petrone
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`will be called to testify at trial. Nevertheless, Mr. Petrone is an established unwilling
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`witness who resides in this District and is, therefore, subject only to this Court’s subpoena
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`power and not subject to the subpoena power of the NDCA court.
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`Mr. Alihassan is a former Embedded Software and Firmware Engineer at Red Fusion, the
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`company that initially developed the firmware for Koss’s Striva line of headphones. As a
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`Firmware Engineer who worked at Red Fusion during development of the firmware for Koss’s
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`Striva headphones, the Court finds that Mr. Alihassan is a relevant witness regarding
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`the firmware in Koss’s Striva headphones in the context of a lost profits damages
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`analysis. Additionally, Mr. Alihassan, as a current employee of a Koss competitor
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`Plantronics, Inc., is unlikely to willingly testify.
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`Koss has established Mr. Petrone, while unlikely to testify at trial, and Mr. Alihassan as
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`unwilling witnesses who are within this Court’s subpoena power but are not subject to
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`NDCA’s subpoena power. Apple has failed to sufficiently establish any unwilling witnesses
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`subject to NDCA court’s subpoena power. Consequently, this Court determines that the
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`availability of compulsory process factor strongly weighs against transfer.
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`iii. The Cost of Attendance for Willing Witnesses
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`The convenience of witnesses is the single most important factor in the transfer analysis.
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`In re Genentech, Inc., 566 F.3d 1338, 1342 (Fed. Cir. 2009). The Court should consider
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`all potential material and relevant witnesses. See Alacritech Inc. v. CenturyLink, Inc., No. 2:16-
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`cv-00693-JRG-RSP, 2017 WL 4155236, at *5 (E.D. Tex. Sep. 19, 2017). The convenience of
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`party witnesses is given little weight. ADS Sec. L.P. v. Advanced Detection Sec. Servs., Inc., No.
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`A-09-CA-773-LY, 2010 WL 1170976, at *4 (W.D. Tex. Mar. 23, 2010), report and
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`recommendation adopted in A-09-CA-773-LY (ECF No. 20) (Apr. 14, 2010). The Fifth
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`Circuit’s 100-mile rule states that “[w]hen the distance between an existing venue for trial of
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`a matter and a proposed venue § 1404(a) is more than 100 miles, the factor of inconvenience
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`of witnesses increases in direct relationship to the additional distance to be traveled.” In re TS
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`Tech USA Corp., 551 F.3d 1315, 1320 (Fed. Cir. 2008) (quoting Volkswagen I, 371 F.3d at 204–
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`05). “Courts properly give more weight to the convenience of non-party witnesses than to
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`party witnesses.” Netlist, No. 6:20-cv-00194-ADA at 13; see Moskowitz Family LLC v. Globus
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`Med., Inc., No. 6:19-cv-00672-ADA, 2020 WL 4577710, at *4 (W.D. Tex. Jul. 2, 2020). As a
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`preliminary matter, given typical time limits at trial, the Court does not assume that all of the
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`party and third-party witnesses listed in 1404(a) briefing will testify at trial. Fintiv, 2019 WL
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`4743678, at *6. Rather, in addition to the party’s experts, the Court assumes that no more than
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`a few party witnesses—and even fewer third-party witnesses, if any—will testify live at trial.
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`Id. Therefore, long lists of potential party and third-party witnesses do not affect the Court’s
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`analysis for this factor. Id.
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`Apple argues that the convenience and cost of attendance to the relevant witnesses
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`weighs in favor of transfer to NDCA. Def.’s Mot. at 9. Apple claims that all of its
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`employees who worked on the accused features are located in California, naming thirteen of its
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`employees as knowledgeable of the engineering, design, and marketing of the accused products,
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`licensing of
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`relevant patents, and relevant financial records and patents. Id. First, Apple states that
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`these witnesses could
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`travel from Apple’s headquarters
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`in Cupertino
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`to
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`the NDCA
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`courthouses in Oakland or San Francisco in less than an hour; alternatively, these same
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`employees could travel to the courthouse in San Jose in approximately fifteen minutes. Id. at
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`10. Conversely, Apple maintains that it would take 5.5 hours for these same employees to take a
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`direct flight to Waco, or these employees would have to take a 3.5 hour flight to either Dallas or
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`Austin followed by a one-hour-and-forty-five minute drive to Waco. Id. Additionally, Apple
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`argues that NDCA is more convenient for the Plaintiff’s third-party witness, Mr. Sagan who
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`resides in Sacramento. Def.’s Mot. at 10. Apple claims that Mr. Sagan can drive from his home
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`to the courthouse in less than two hours. Id. at 11. Conversely, Apple claims that it would take
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`Mr. Sagan five hours or more to reach the courthouse in Waco from his home. Id. While
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`Apple concedes that it has offices within WDTX, it maintains that none of the employees
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`responsible for the design engineering, development, or marketing of the accused features
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`work out of such offices. Id. at 12.
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`In response, Koss argues that the convenience to willing witnesses weighs against
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`transfer. First, Koss states that this District is closer to its Midwestern offices than NDCA, and
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`therefore more convenient for its party witnesses. Pl.’s Opp. at 9. However, Koss notes that the
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`convenience of party witnesses is given little weight. Id. at 8. Thus, turning to third-party
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`witnesses, Koss notes that two relevant third-party witnesses, Mr. Petrone and Mr. Alihassan live
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`in WDTX. Id. Additionally, Koss rebuts Apple’s claim that NDCA is a more convenient venue
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`for third-party inventor Mr. Sagan, stating that Koss is covering the cost of Mr. Sagan’s travel
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`expenses, therefore, there is negligible convenience to Mr. Sagan if this case were transferred to
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`NDCA. Id. Moreover, six of the eight other third-party inventors live in either Wisconsin or
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`Illinois. Id. Koss notes that these witnesses will have to travel to either venue but notes that the
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`cost to travel to WDTX is substantially less than the cost to travel to NDCA, largely
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`because WDTX is closer to these states than NDCA. Id.
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`As to Apple’s list of thirteen witnesses, Koss observes that merely presenting a sprawling
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`list of witnesses is not persuasive because it is unlikely that Apple will call each of these thirteen
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`witnesses at trial. Id. at 9. Moreover, Koss contends that because Apple has an Austin
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`office, Apple greatly exaggerates the inconvenience to its witnesses of travelling to
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`WDTX.
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`Id. Particularly, Koss notes that such witnesses could continue their normal
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`employment in Apple’s Austin office. Id. Thus, Koss concludes that WDTX is more
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`convenient than NDCA for six third-party inventor witnesses and for the majority of
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`other third-party witnesses and that Apple’s contention that NDCA is significantly more
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`convenient is undercut by the availability of its Austin office. Id. at 10–11.
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`In its Reply, Apple points out that Koss does not dispute the time it would take for
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`Apple’s employees to travel to the NDCA courthouse or how long it would take for the same
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`witnesses to reach the WDTX courthouse. Pl.’s Reply at 5.
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`In analyzing the convenience of Apple’s party witnesses, Koss’s party witnesses,
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`and relevant third-party witnesses, the Court finds that this factor weighs against transfer.
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`1. Apple’s Party Witnesses
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`The convenience of party witnesses is given little weight. ADS Sec. L.P. v. Advanced
`
`Detection Sec. Servs., Inc., No. A-09-CA-773-LY, 2010 WL 1170976, at *4 (W.D. Tex. Mar. 23,
`
`2010), report and recommendation adopted in A-09-CA-773-LY (ECF No. 20) (Apr. 14, 2010).
`
`This Court “assumes that no more than a few party witnesses—and even fewer third-
`
`party witnesses” will testify and “long lists of potential party and third-party witnesses” do not
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`impact
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`its analysis. STC.UNM v. Apple Inc., No. 6:19-cv-428-ADA, 2020 WL 4559706, at *6 (W.D.
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`Tex. Apr. 1, 2020). As Koss notes this Court does not determine this factor by mechanically
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`counting the number of witnesses. See Fintiv, 2019 WL 4743678, at *4.
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`As a preliminary matter, the Court finds it highly unlikely that Apple will c