Case 2:12-cv-02783-JPM-cgc Document 33 Filed 02/14/13 Page 1 of 25 PageID 285
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
`
`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`TWITTER, INC.,
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`Defendant.
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`Case No. 2:12-cv-02783 JPM cgc
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`JURY DEMAND
`
`REQUEST HEARING ON MOTION
`
`PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION TO
`TRANSFER VENUE PURSUANT TO 28 U.S.C. § 1404(a)
`AND FOR EXPEDITED CONSIDERATION
`
`Richard M. Carter (TN B.P.R. #7285)
`Adam C. Simpson (TN B.P.R. #24705)
`MARTIN, TATE, MORROW & MARSTON, P.C.
`6410 Poplar Avenue, Suite 1000
`Memphis, TN 38119-4839
`Telephone: (901) 522-9000
`
`Robert E. Freitas (CA Bar No. 80948)
`Craig R. Kaufman (CA Bar No. 159458)
`Daniel J. Weinberg (CA Bar No. 227159)
`James Lin (CA Bar No. 241472)
`Qudus B. Olaniran (CA Bar No. 267838)
`FREITAS TSENG & KAUFMAN LLP
`100 Marine Parkway, Suite 200
`Redwood Shores, CA 94065
`Telephone: (650) 593-6300
`
`Attorneys for Plaintiff
`B.E. Technology, L.L.C.
`
`
`
`Dated: February 14, 2013
`
`
`

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`Case 2:12-cv-02783-JPM-cgc Document 33 Filed 02/14/13 Page 2 of 25 PageID 286
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`TABLE OF CONTENTS
`
`I.
`II.
`
`III.
`IV.
`
`V.
`VI.
`
`
`INTRODUCTION ............................................................................................................. 1
`STATEMENT OF FACTS ................................................................................................ 2
`A.
`B.E. Technology, L.L.C ......................................................................................... 2
`B.
`B.E. v. Twitter ........................................................................................................ 2
`THE LAW GOVERNING MOTIONS TO TRANSFER .................................................. 3
`TRANSFER IS NOT APPROPRIATE ............................................................................. 4
`A.
`B.E.’s Choice of Forum is Entitled to Substantial Weight .................................... 4
`B.
`Private Factors Favor B.E.’s Choice of Forum ...................................................... 7
`1.
`Convenience of the Parties Weighs Against Transfer ............................... 7
`2.
`Convenience of the Witnesses Weighs Against Transfer .......................... 8
`a.
`Party Witnesses .............................................................................. 9
`b.
`Non-Party Witnesses .................................................................... 11
`Location of Sources of Proof ................................................................... 12
`Twitter Would Not Be Materially Burdened Bearing The Expense
`of Litigating in the Western District of Tennessee .................................. 14
`Public Factors Favor B.E.’s Choice of Forum ..................................................... 15
`1.
`Transfer to the Northern District of California Would Delay Trial ......... 15
`2.
`The Western District of Tennessee Has a Substantial Local Interest
`in the Vindication of B.E.’s Patent Rights ............................................... 16
`REQUEST FOR ORAL ARGUMENT ........................................................................... 17
`CONCLUSION ................................................................................................................ 18
`
`
`3.
`4.
`
`C.
`
`Page
`
`
`ii
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`

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`Case 2:12-cv-02783-JPM-cgc Document 33 Filed 02/14/13 Page 3 of 25 PageID 287
`
`TABLE OF AUTHORITIES
`
`Federal Cases
`
`Page(s)
`
`Adoma v. Univ. of Phoenix, Inc., 711 F. Supp. 2d 1142 (E.D. Cal. 2010) .....................................9
`
`American S.S. Owners Mut. Prot. & Indem. Ass’n, Inc. v. Lafarge North Am., Inc.,
`474 F. Supp. 2d 474 (S.D.N.Y. 2002) ......................................................................................13
`
`Board of Trs. v. Baylor Heading & Air Conditioning, Inc.,
`702 F. Supp. 1253 (E.D. Va. 1988) .......................................................................................2, 9
`
`Cincinnati Ins. Co. v. O’Leary Paint Co.,
`676 F. Supp. 2d 623 (W.D. Mich. 2009) .................................................................................13
`
`E2Interactive, Inc. v. Blackhawk Network, Inc.,
`2010 WL 3937911 (W.D. Wis. Oct. 6, 2010) ..........................................................................15
`
`Ellipsis, Inc. v. Colorworks, Inc.,
`329 F. Supp. 2d 962 (W.D. Tenn. 2004) ..................................................................................14
`
`Esperson v. Trugreen Ltd. P’ship,
`2010 WL 4362794 (W.D. Tenn. Oct. 5, 2010) ............................................................10, 12, 15
`
`Hanning v. New England Mut. Life Ins. Co.,
`710 F. Supp. 213 (S.D. Ohio 1989) ...........................................................................................4
`
`Hunter Fan Co. v. Minka Lighting, Inc.,
`2006 WL 1627746 (W.D. Tenn. June 12, 2006) ............................................................. passim
`
`Imagepoint, Inc. v. Keyser Indus., Inc.,
`2005 WL 1242067 (E.D. Tenn. May 25, 2005) .........................................................................4
`
`In re Hoffman-La Roche, Inc.,
`587 F.3d 1333 (Fed. Cir. 2009)..................................................................................................6
`
`In re Link_A_Media Devices Corp.,
`662 F.3d 1221 (Fed. Cir. 2011)................................................................................................13
`
`In re Microsoft Corp.,
`630 F.3d 1361 (Fed. Cir. 2011)..................................................................................................6
`
`In re Zimmer Holdings,
`609 F.3d 1378 (Fed. Cir. 2010)..................................................................................................7
`
`Innogenetics, N.V. v. Abbott Labs,
`512 F.3d 1363 (Fed. Cir. 2008)................................................................................................11
`
`- iii -
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`

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`
`TABLE OF AUTHORITIES
`(CONT.)
`
`Federal Cases
`
`Page(s)
`
`Kerobo v. Southwestern Clean Fuels Corp.,
`285 F.3d 531 (6th Cir. 2002) .....................................................................................................3
`
`Koh v. Microtek Int’l, Inc.,
`250 F. Supp. 2d 627 (E.D. Va. 2003) .......................................................................................9
`
`Lucent Techs., Inc. v. Aspect Telecomms. Corp.,
`1997 WL 476356 (E.D. Pa. Aug. 20, 1997) ........................................................................8, 17
`
`Max Rack, Inc. v. Hoist Fitness Sys., Inc.,
`2006 WL 640497 (S.D. Ohio March 10, 2006) .......................................................................13
`
`MCNIC Oil & Gas Co. v. IBEX Resources Co., L.L.C.,
`23 F. Supp. 2d 729 (E.D. Mich. 1998) .......................................................................................4
`
`Moses v. Business Card Express, Inc.,
`929 F.2d 1131 (6th Cir. 1991) ...................................................................................................4
`
`Nationwide Mut. Life Ins. v. Koresko,
`2007 WL 2713783 (S.D. Ohio Sept. 14, 2007) ...................................................................3, 14
`
`Optima, Inc. v. Republic Indus., Inc.,
`1995 WL 72430 (E.D. La. Feb. 21, 1995)) ..............................................................................16
`
`Parsons v. Chesapeake & Ohio Ry. Co.,
`375 U.S. 71 (1963) ...................................................................................................................15
`
`Plough, Inc. v. Allergan, Inc.,
`741 F. Supp. 144 (W.D. Tenn. 1990).........................................................................................3
`
`Returns Distribution Spec., LLC v. Playtex Prods., Inc.,
`2003 WL 21244142 (W.D. Tenn. May 28, 2003) .................................................................3, 4
`
`Rinks v. Hocking,
`2011 WL 691242 (W.D. Mich. Feb. 16, 2011)................................................................ passim
`
`Roberts Metals, Inc. v. Florida Props. Mktg. Grp., Inc.,
`138 F.R.D. 89 (N.D. Ohio 1991) ......................................................................................10, 12
`
`Samsung Elecs. Co. v. Rambus, Inc.,
`386 F. Supp. 2d 708 (E.D. Va. 2005) ........................................................................................9
`
`- iv -
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`

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`
`TABLE OF AUTHORITIES
`(CONT.)
`
`Federal Cases
`
`Page(s)
`
`Siteworks Solutions, LLC v. Oracle Corp.,
`2008 WL 4415075 (W.D. Tenn. Sept. 22, 2008) .....................................................................14
`
`Stewart Organization, Inc. v. Ricoh Corp.,
`487 U.S. 22 (1988) ....................................................................................................................4
`
`Tuna Processors, Inc. v. Hawaii Int’l Seafood,
`408 F. Supp. 2d 358 (E.D. Mich. 2005) .....................................................................................3
`
`Van Dusen v. Barrack,
`376 U.S. 612 (1964) ...................................................................................................................4
`
`Viron Int’l Corp. v. David Boland, Inc.,
`237 F. Supp. 2d 812 (W.D. Mich. 2002) .............................................................................8, 10
`
`Statutes
`
`28 U.S.C. § 1391 ..............................................................................................................................2
`
`28 U.S.C. § 1400(b) .....................................................................................................................2, 3
`
`28 U.S.C. § 1404 ..............................................................................................................................1
`
`28 U.S.C. § 1404(a) ...................................................................................................................3, 18
`
`Fed. R. Civ. P. Rule 45(b)(2) .........................................................................................................12
`
`Rules
`
`
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`I.
`
`INTRODUCTION.
`
`This case arises from the infringement by defendant Twitter, Inc. (“Twitter”) of United
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`States Patent No. 6,628,314. This patent describes and claims inventions relating to user
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`interfaces for accessing computer applications and information to provide advertising over a
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`computer network. Plaintiff B.E. Technology, L.L.C. (“B.E.”) has brought this action because
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`Twitter has infringed B.E.’s patent in this District and across the United States. The inventor,
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`Martin David Hoyle, is also the Chief Executive Officer of B.E. Mr. Hoyle has lived in the
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`Western District of Tennessee since 2006 and currently resides at 116 W. Viking Drive,
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`Cordova, Tennessee, part of the City of Memphis. Mr. Hoyle has directed B.E.’s business from
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`this District since at least 2008.
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`Ignoring critical facts establishing B.E.’s connection to this District, Twitter has asked
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`the Court to transfer this case from the inventor’s and the plaintiff company’s home District to
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`Twitter’s home, the Northern District of California. Contrary to Twitter’s characterization, this
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`case does not involve a plaintiff taking steps to manufacture venue. The Western District of
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`Tennessee is, and has long been, the physical location and home of B.E. and its Chief Executive
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`Officer, who is the inventor of the patent-in-suit. Twitter cannot disprove that.
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`Despite Mr. Hoyle’s and B.E.’s longstanding connection to this District, Twitter argues
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`that transfer to the Northern District of California would be more convenient because its
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`headquarters is located in San Francisco, California and its witnesses and documents relevant to
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`this case can be found there. Transfer to California might be more convenient for Twitter, but
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`there is no room for debate that it would be less convenient for B.E. Transfer under 28 U.S.C. §
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`1404 requires a “more convenient forum,” not merely a “forum likely to prove equally
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`convenient or inconvenient,” or “a forum the defendant finds more to its liking.” Because
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`Twitter can offer no more, its motion to transfer should be denied.
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`1
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`

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`II.
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`STATEMENT OF FACTS.
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`A.
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`B.E. Technology, L.L.C.
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`B.E. is a Delaware limited liability company. Declaration of Martin David Hoyle
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`(“Hoyle Decl.”) ¶ 5. Martin David Hoyle, who goes by David, founded B.E. in 1997 to develop
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`Internet-related technologies. Id. B.E. is the assignee of United States Patent No. 6,628,314 (the
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`“’314 patent”) (the “patent-in-suit”). Id. ¶ 7. Mr. Hoyle has been B.E.’s Chief Executive Officer
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`since 2008. Id. ¶ 6. He previously held other positions with B.E., including serving as its
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`President from 1997 to 2001. Id. Mr. Hoyle is the named inventor of the patent-in-suit.1 Id. ¶ 7.
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`In April 2006, Mr. Hoyle and his family moved from Mandeville, Louisiana to Eads,
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`Tennessee. Id. ¶ 2. They left Louisiana in the aftermath of Hurricane Katrina. Id. Mr. Hoyle
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`has remained in the Memphis area, and in this judicial district, ever since. See id. ¶¶ 2-4. In
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`2012, after contemplating a return to Louisiana, Mr. Hoyle and his wife moved to Cordova, in
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`the city of Memphis and also in this District. Id. ¶ 4.
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`B.E. originally maintained its registered office in Michigan where some of its members
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`and its accountant reside, id. ¶ 5, but it formally registered to conduct business in Tennessee in
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`2012. Id. ¶ 8. Mr. Hoyle runs the business of B.E. from his home office, including meeting with
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`the B.E. Board of Directors, filing patent applications, and coordinating the enforcement of
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`B.E.’s intellectual property rights. Id. ¶ 6.
`
`B.
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`B.E. v. Twitter.
`
`B.E. filed its Complaint in this matter on September 10, 2012. D.E. 1. Twitter filed its
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`Answer on December 31, 2012, acknowledging that venue is proper in this District. D.E. 19 ¶ 5
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`(“Twitter does not contend in this action that 28 U.S.C. §§ 1391(b), 1391(c), 1391(c), and
`
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`1 In addition to his work for B.E., Mr. Hoyle is an independent technology consultant. Hoyle
`Decl. ¶ 9.
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`Case 2:12-cv-02783-JPM-cgc Document 33 Filed 02/14/13 Page 8 of 25 PageID 292
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`1400(b) preclude B.E. from bringing this action in this venue . . .”). This is one of nineteen cases
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`B.E. has filed in the Western District of Tennessee for the infringement of the patent-in-suit and
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`related patents not asserted against Twitter. The defendants in these B.E. cases include several
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`of the world’s most sophisticated technology companies, each of which regularly conducts
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`business on a massive scale in this District.
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`III. THE LAW GOVERNING MOTIONS TO TRANSFER.
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`“For the convenience of parties and witnesses, in the interest of justice, a district court
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`may transfer any civil action to any other district or division where it might have been brought.”
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`28 U.S.C. § 1404(a). A decision to transfer venue is made “on an individual basis by
`
`considering convenience and fairness.” Kerobo v. Southwestern Clean Fuels Corp., 285 F.3d
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`531, 537 (6th Cir. 2002) (internal quotes omitted). The “balance of convenience must weigh
`
`heavily in favor of the transfer.” Nationwide Mut. Life Ins. v. Koresko, 2007 WL 2713783, at *5
`
`(S.D. Ohio Sept. 14, 2007).
`
`“As a general rule, there is a ‘strong presumption’ in favor of the plaintiff’s selection of
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`forum, and the plaintiff’s choice should not be altered ‘unless the defendant carries his burden of
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`demonstrating that the balance of convenience strongly favors transfer.’” Hunter Fan Co. v.
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`Minka Lighting, Inc., 2006 WL 1627746, at * 2 (W.D. Tenn. June 12, 2006) (McCalla, J.)
`
`(quoting Plough, Inc. v. Allergan, Inc., 741 F. Supp. 144, 148 (W.D. Tenn. 1990)) (denying a
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`motion to transfer even though the majority of defendant’s witnesses and documents were
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`located in California and California was the epicenter of the accused infringing activity). “When
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`a plaintiff has selected its home forum, this choice is given particular weight.” Id. (citing Tuna
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`Processors, Inc. v. Hawaii Int’l Seafood, 408 F. Supp. 2d 358, 360 (E.D. Mich. 2005)).
`
`The threshold question on any motion to transfer is whether the plaintiff could have filed
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`the action in the transferee forum. See Returns Distribution Spec., LLC v. Playtex Prods., Inc.,
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`2003 WL 21244142, at *6 (W.D. Tenn. May 28, 2003); MCNIC Oil & Gas Co. v. IBEX
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`Resources Co., L.L.C., 23 F. Supp. 2d 729, 739 (E.D. Mich. 1998) (same). If so, then the
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`“district court should consider the private interests of the parties, including their convenience and
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`the convenience of potential witnesses, as well as other public-interest concerns, such as
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`systemic integrity and fairness, which come under the rubric of ‘interests of justice.’” Moses v.
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`Business Card Express, Inc., 929 F.2d 1131, 1137 (6th Cir. 1991) (quoting Stewart
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`Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 30 (1988)).
`
`IV.
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`TRANSFER IS NOT APPROPRIATE.
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`B.E. agrees that its patent infringement claims could have been brought in the Northern
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`District of California because Twitter infringes there, just as it does in this District, and Twitter is
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`based in the Northern District of California. The relevant question presented by Twitter’s
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`motion is therefore whether Twitter has met its high burden to establish that the Northern District
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`of California is “a more convenient forum,” not merely an “equally convenient or inconvenient”
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`forum when compared to the Western District of Tennessee. Van Dusen v. Barrack, 376 U.S.
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`612, 645-46 (1964). Twitter has not made that showing.
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`A.
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`B.E.’s Choice of Forum is Entitled to Substantial Weight.
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`As mentioned above, it is well-settled that a plaintiff’s choice of forum is entitled to
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`substantial weight. Hunter Fan Co., 2006 WL 1627746, at *2; see also Imagepoint, Inc. v.
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`Keyser Indus., Inc., 2005 WL 1242067, at *3 (E.D. Tenn. May 25, 2005) (explaining the
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`plaintiff’s “choice of forum will be given deference”); Hanning v. New England Mut. Life Ins.
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`Co., 710 F. Supp. 213, 214-15 (S.D. Ohio 1989) (“considerable weight”). The Western District
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`of Tennessee is B.E.’s principal place of business and its Chief Executive Officer, who is the
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`named inventor, lives here. B.E.’s choice of forum should be accorded substantial weight.
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`Twitter argues that “B.E.’s choice of forum is entitled to no deference as it appears to
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`have been created solely to make this District appear convenient.” D.E. 30-1 at 2. That is not
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`true, see Hoyle Decl. ¶¶ 2-7, and Twitter’s incorrect deductions about the relevant facts should
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`be rejected. For example, Twitter falsely states that B.E.’s “sole purported connection to
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`Tennessee is its business registration—created three days before this lawsuit was filed.” D.E.
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`30-1 at 1. B.E. clearly does not rely on the simple fact that it is registered to conduct business in
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`Tennessee as a basis for establishing its connection to the District. B.E. registered because it has
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`a connection to Tennessee; it did not register to establish a connection. If the timing of B.E.’s
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`registration is to be questioned, it should be understood that the registration was made after Mr.
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`Hoyle chose to remain in Tennessee, rather than return to Louisiana. Hoyle Decl. ¶ 4. When
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`B.E. was preparing to file this action and Mr. Hoyle discovered that B.E. had not registered to do
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`business in Tennessee, the registration was made. Id. ¶ 8.
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`Twitter also wrongly states that “B.E.’s last minute pre-litigation ‘relocation’ . . . does not
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`create any meaningful connection between this District and either the plaintiff, the asserted
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`patents or the purported invention.” Id. B.E. and Mr. Hoyle did not a recently relocate to the
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`Western District of Tennessee. Mr. Hoyle has been physically present in this District since
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`2006,2 and B.E. since at least 2008. Hoyle Decl. ¶¶ 2-7. Mr. Hoyle’s move to this District, six
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`years before the filing of this action, was not the first step in a slow-developing scheme to
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`construct the appearance of a connection to the forum. While Mr. Hoyle did consider a return to
`
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`2 Twitter knows from statements made by B.E.’s lead counsel in a news article posted November
`20, 2012 on the website of the Memphis Commercial Appeal newspaper that Mr. Hoyle moved
`to Tennessee in 2006. See D.E. 30-1 at 3; D.E. 30-5, Ex. 1. But Twitter appears to have blinded
`itself to the relevant evidence in favor of making incorrect assumptions about Mr. Hoyle’s
`whereabouts to further a narrative it believes better suits its motion to transfer.
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`New Orleans and took steps to establish residence there, he ultimately decided to remain in
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`Tennessee and purchased a new home in Cordova. Id. ¶ 4.
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`Twitter wrongly proclaims that “[n]ot a single relevant document is known to be located
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`in this District.” D.E. 30-1 at 2. B.E.’s records, including documents demonstrating the
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`conception and reduction to practice of Mr. Hoyle’s inventions, are physically located in this
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`District. This is neither a recent development nor a fictitious arrangement strategically to place
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`important evidence in the Western District of Tennessee. Mr. Hoyle, as CEO and inventor, will
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`likely be a key B.E. witness, but Twitter makes no attempt to overcome the significance of his
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`presence in the District, instead, assuming incorrectly, that he is not even here.
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`Twitter further questions B.E.’s connection to this District by observing that in December
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`2011 B.E. Technology represented to the Patent Office that Mr. Hoyle is a resident of New
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`Orleans, Louisiana—not Tennessee. D.E. 30-1 at 3. Twitter offers no information about Mr.
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`Hoyle’s personal situation or the circumstances that led him briefly to seek to establish residence
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`in New Orleans when the December 2011 patent application was filed. See Hoyle Decl. ¶ 4.
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`Nor can Twitter present any information that demonstrates Mr. Hoyle’s statements in this Court
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`are inconsistent with the representation made to the Patent Office about his residency. Mr.
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`Hoyle is a resident of this District and his presence and residence here have nothing at all do with
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`a desire to manufacture venue.
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`There is no similarity between these facts and the facts of the cases on which Twitter
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`relies. See In re Microsoft Corp., 630 F.3d 1361, 1362 (Fed. Cir. 2011) (“[Plaintiff] is operated
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`from the United Kingdom by the patent’s co-inventor and company’s managing member” and
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`employed no individuals at its office in the Eastern District of Texas.); In re Hoffman-La Roche,
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`Inc., 587 F.3d 1333, 1336-37 (Fed. Cir. 2009) (“[T]here appears to be no connection between
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`this case and the Eastern District of Texas except that in anticipation of this litigation,
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`[plaintiff’s] counsel in California converted into electronic format 75,000 pages of documents
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`demonstrating conception and reduction to practice and transferred them to the offices of its
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`litigation counsel in Texas.”); In re Zimmer Holdings, 609 F.3d 1378, 1381 (Fed. Cir. 2010)
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`(“[Plaintiff] transported copies of its patent prosecution files from Michigan to its Texas office
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`space, which it shares with another of its trial counsel’s clients.”).
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`In evaluating where B.E. operates, the Court should identify the company’s “‘nerve
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`center[,]’ the place of actual direction, control and coordination.” In re Microsoft, 630 F.3d at
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`1364. Mr. Hoyle’s office in Cordova is B.E.’s “nerve center.” It is and has been the place from
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`which Mr. Hoyle has controlled and directed B.E. business activities since at least 2008. Hoyle
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`Decl. ¶ 6. Twitter can muster no evidence to the contrary. B.E.’s contacts with the forum were
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`not manufactured for litigation and as a result, its choice of forum is entitled to “substantial
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`weight.”
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`B.
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`Private Factors Favor B.E.’s Choice of Forum.
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`While B.E.’s choice of forum is entitled to substantial weight, the Court is nevertheless
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`required to evaluate private and public factors in determining whether to grant Twitter’s motion.
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`“The private interests of the parties that courts consider when determining whether to transfer a
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`case include: the convenience of the parties, the convenience of witnesses, the location of
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`sources of proof, where the operative facts occurred, the relative ability of litigants to bear
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`expenses in any particular forum, and other practical problems affecting the case.” Hunter Fan,
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`2006 WL 1627746, at *2.
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`1.
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`Convenience of the Parties Weighs Against Transfer.
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`The Western District of Tennessee is more convenient for B.E. than the Northern District
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`of California. As previously explained, B.E. and its CEO, the inventor of the patents-in-suit,
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`reside within the District. B.E.’s corporate documents and records are here as well. Outside of
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`witness convenience, Twitter does not make an explicit argument that it will be inconvenienced
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`by conducting litigation in Tennessee. It is reasonable to require companies with the wealth and
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`size of Twitter to litigate in jurisdictions in which they regularly conduct business. See Lucent
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`Techs., Inc. v. Aspect Telecomms. Corp., 1997 WL 476356, at *4 (E.D. Pa. Aug. 20, 1997)
`
`(finding it reasonable to force a public company with “$300 million a year in sales and
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`approximately $216 million in current assets, to travel to places where it is subject to jurisdiction
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`in order to defend its corporate interests”). Twitter is a wealthy company. As a private
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`company, B.E. does not have access to Twitter’s financial information; however, a January 3,
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`2013 Forbes.com article addressing Twitter’s anticipated Initial Public Offering reports an
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`estimated valuation of approximately $11,000,000,000. Declaration of Daniel Weinberg
`
`(“Weinberg Decl.”) Ex. A. To defend it in this action, Twitter has retained lawyers from
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`Memphis and Mountain View, California. It is doubtful that Twitter will suffer hardship or
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`inconvenience by litigating in the Western District of Tennessee.
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`2.
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`Convenience of the Witnesses Weighs Against Transfer.
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`Twitter argues that the Northern District of California would be a more convenient venue
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`for its own witnesses because, “[s]imply put, it is more efficient and convenient and less
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`disruptive for Twitter witnesses to testify at home—in the Northern District of California.” D.E.
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`30-1 at 10. By the same logic, it is more efficient and convenient and less disruptive for B.E.’s
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`witnesses, none of whom are located in the Northern District of California, to testify in this
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`District. It is “the materiality and importance of the testimony of prospective witnesses, and not
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`merely the number of witnesses, [that] is crucial to this inquiry.” Rinks v. Hocking, 2011 WL
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`691242, at *3 (W.D. Mich. Feb. 16, 2011) (citing Viron Int’l Corp. v. David Boland, Inc., 237 F.
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`Supp. 2d 812, 816 (W.D. Mich. 2002)).
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`Case 2:12-cv-02783-JPM-cgc Document 33 Filed 02/14/13 Page 14 of 25 PageID 298
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`Twitter offers precious little about whom the witnesses are that will be inconvenienced
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`by the case staying in Tennessee, what they will say, and why they are important to this case.
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`“To sustain a finding on [the convenience of the witnesses] . . . the party asserting witness
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`inconvenience ‘has the burden to proffer, by affidavit or otherwise, sufficient details respecting
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`the witnesses and their potential trial testimony to enable the court to assess the materiality of
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`evidence and the degree of inconvenience.’” Rinks, 2011 WL 691242, at *3 (quoting Koh v.
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`Microtek Int’l, Inc., 250 F. Supp. 2d 627, 636 (E.D. Va. 2003)); Samsung Elecs. Co. v. Rambus,
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`Inc., 386 F. Supp. 2d 708, 718 (E.D. Va. 2005) (same). District courts typically require
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`affidavits or declarations that contain admissible evidence setting forth “who the key witnesses
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`will be and what their testimony will generally include.” Rinks, 2011 WL 691242, at *3 (quoting
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`Adoma v. Univ. of Phoenix, Inc., 711 F. Supp. 2d 1142, 1151 (E.D. Cal. 2010)); see also Board
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`of Trs. v. Baylor Heading & Air Conditioning, Inc., 702 F. Supp. 1253, 1258 (E.D. Va. 1988)
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`(“Witness convenience . . . cannot be assessed in the absence of reliable information identifying
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`the witnesses involved and specifically describing their testimony.”). Twitter provides none of
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`that.
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`a. Party Witnesses.
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`Twitter claims that its employees who are likely to be witnesses would be
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`inconvenienced if the case remains in Tennessee, but offers no particularized information
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`enabling the Court to ascertain how much weight to give the claim of inconvenience. Twitter
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`fails to identify any witnesses by name, position title, location, the subject matter on which they
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`will testify, or the burdens they would endure by traveling to Tennessee to testify. Twitter
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`merely states that “employees who design and develop Twitter’s advertising-related technology,
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`including its Promoted Tweets technology accused of infringement in this action, are located [in
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`the Northern District of California].” See D.E. 30-1 at 4; see also Declaration of Ed Axelsen
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`Case 2:12-cv-02783-JPM-cgc Document 33 Filed 02/14/13 Page 15 of 25 PageID 299
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`(“Axelsen Decl.”) ¶ 6 (“[E]mployees with knowledge regarding [sales, finances, and marketing]
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`operations are based in San Francisco.”). “[A] party that ‘fails to identify the witnesses’ and
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`‘what their testimony would be’ cannot establish that a particular forum is inconvenient.”
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`Esperson v. Trugreen Ltd. P’ship, 2010 WL 4362794, at *8 (W.D. Tenn. Oct. 5, 2010) (quoting
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`Roberts Metals, Inc. v. Florida Props. Mktg. Grp., Inc., 138 F.R.D. 89, 93 (N.D. Ohio 1991),
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`aff’d per curiam, 22 F.2d 1104 (6th Cir. 1994)). Twitter’s vague representations concerning
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`witness inconvenience do not meaningfully aid in the evaluation of this factor. It is “the
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`materiality and importance of the testimony of prospective witnesses, and not merely the number
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`of witnesses, [that] is crucial to this inquiry.” Rinks, 2011 WL 691242 at *3 (citing Viron Int’l
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`Corp. v. David Boland, Inc., 237 F. Supp. 2d 812, 816 (W.D. Mich. 2002)).
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`Twitter also does not provide admissible evidence of the costs expected to be incurred or
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`how its operations would be disrupted by the case staying in Tennessee. Twitter merely argues
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`that the “the disruption to the large number of employees from Twitter … who may be forced to
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`leave their homes and jobs to testify in Tennessee is not offset by any corresponding
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`inconvenience to require the single inventor, to travel to California . . . .” D.E. 30-1 at 10.
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`That’s it. Twitter fails to provide the names, position titles, or responsibilities of a single
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`anticipated witness, the cost Twitter would incur by sending a witness to Tennessee to testify, or
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`how their absence from California would disrupt Twitter’s business operations.
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`Finally, Twitter has not shown that all of its witnesses will necessarily be forced to testify
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`in Tennessee. Typically, though not always, depositions are taken in locations convenient for the
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`witnesses or subject to agreements between the parties mindful of witness convenience. It is
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`likely that Twitter’s California-based employees will be deposed in California where B.E.’s lead
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`counsel is based. See Hunter Fan, 2006 WL 1627746, at *2 (witness convenience does not favor
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`Case 2:12-cv-02783-JPM-cgc Document 33 Filed 02/14/13 Page 16 of 25 PageID 300
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`transfer where plaintiff “plans to take the depositions of witnesses who are California residents,
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`including Defendant’s employees, in California”).
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`b. Non-Party Witnesses.
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`Twitter next arg