`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`XR COMMUNICATIONS d/b/a
`VIVATO TECHNOLOGIES,
` Plaintiff,
`
`
`v.
`
`APPLE INC.,
` Defendant.
`
`§
`§
`§
`§
`§
`§
`§
`
`
`
`
`CIVIL NO. 6:21-CV-00620-ADA
`
`
`
`
`
`DISCOVERY AND SCHEDULING ORDER
`
`Before the Court is: Apple Inc.’s (“Defendant”) Opposed Sealed Motion for Leave to File
`
`a Supplemental Reply Brief and Associated Supplemental Evidence in Support of Apple Inc.’s
`
`Motion to Transfer, ECF No. 54; and Opposed Sealed Motion for Leave to File Supplemental
`
`Declarations in Support of Apple Inc.’s Motion to Transfer, ECF No. 55. After considering the
`
`motions and the parties’ briefing, the Court hereby GRANTS these motions.
`
`A party may move to transfer a case for “the convenience of parties and witnesses, in the
`
`interest of justice.” 28 U.S.C. § 1404. As part of this inquiry, courts look to the locations of the
`
`parties, the witnesses, and the evidence, among other factors. In re Volkswagen AG, 371 F.3d 201,
`
`203 (5th Cir. 2004) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)).
`
`The Court intends to make a fair, evidenced-based ruling on Defendant’s pending motion
`
`to transfer based on an accurate identification of the witnesses, parties, and evidence relevant to
`
`this case. Supplementing the record furthers this goal. In fairness, if one party supplements its
`
`motion, the Court will give the other party the same opportunity. Thus, the Court permits both
`
`parties to provide supplemental evidence and arguments.
`
`Full fact discovery will allow the parties to provide the Court with the best evidence for
`
`ruling on a motion to transfer. In this Court’s experience, speculation and incompletely discovery
`
`APPLE 1049
`Apple et al. v. XR Commc'ns
`IPR2022-01155
`
`1
`
`
`
`Case 6:21-cv-00620-ADA Document 68 Filed 08/25/22 Page 2 of 4
`
`often plagues early transfer motions. Before fact discovery, parties have not yet identified the
`
`relevant prior art to assert at trial, the relevant witnesses, the relevant third parties, or the relevant
`
`evidence. Thus, in early motions to transfer, the Volkswagen factors drive parties to identify
`
`witnesses and evidence based on location rather than relevance. Too frequently, such transfer-
`
`driven speculation about the witnesses and evidence fails to align with reality. At trial, the parties
`
`end up calling different witnesses, asserting different prior art, and presenting different evidence
`
`from what they identify in their transfer briefs. Requiring venue discovery to precede fact
`
`discovery also frequently leads to unnecessary discovery disputes about whether certain discovery
`
`requests fall into one bucket or the other.
`
`Thus, the Court finds it prudent to have the parties to renew their response, reply, and sur-
`
`reply briefing on the motion to transfer before the Court resolves the transfer issue, which will also
`
`be before the Markman hearing. Accordingly, the Court will set the following dates:
`
`•
`
`the deadline for Plaintiff’s replacement response brief is set two weeks after the
`
`currently scheduled close of fact discovery;
`
`•
`
`the deadline for Defendant’s replacement reply brief is set for four weeks after the
`
`currently scheduled close of fact discovery;
`
`•
`
`the deadline for Plaintiff’s replacement sur-reply brief is set for six weeks after the
`
`currently scheduled close of fact discovery; and
`
`•
`
`the Markman will occur approximately 10 weeks after the currently scheduled close
`
`of fact discovery.
`
`IT IS HEREBY ORDERED that:
`
`1) Defendant’s motions, ECF Nos. 54, 55, are GRANTED. Defendant has leave to file
`
`the supplemental declarations attached to ECF Nos. 54, 55.
`
`2
`
`
`
`Case 6:21-cv-00620-ADA Document 68 Filed 08/25/22 Page 3 of 4
`
`2) Full fact discovery is now open.
`
`3) The parties shall meet and confer to file a joint motion to enter a scheduling order for
`
`replacement briefing based on instructions above within the next two weeks.
`
`SIGNED this 25th day of August, 2022.
`
`
`
`
`
`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
`
`
`
`3
`
`
`
`Case 6:21-cv-00620-ADA Document 68 Filed 08/25/22 Page 4 of 4
`Case 6:21-cv-00620-ADA Document 68 Filed 08/25/22 Page 4 of 4
`
`
`
`4
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
