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Case 2:12-cv-02783-JPM-cgc Document 42 Filed 07/19/13 Page 1 of 27 PageID 387
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TENNESSEE
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`B.E. TECHNOLOGY, LLC,
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`Plaintiff,
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`TWITTER, INC.,
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`Defendant.
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`No.: 2:12-cv-02783-JPM-cgc
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`ORDER DENYING MOTION TO TRANSFER VENUE
`
`Before the Court is Defendant Twitter, Inc.’s (“Defendant”
`or “Twitter”) Motion to Transfer Venue Pursuant to 28 U.S.C.
`§ 1404(a) and for Expedited Consideration, filed January 28,
`2013. (ECF No. 30.) For the reasons that follow, the Motion is
`DENIED.
`I. BACKGROUND
`This case concerns Defendant Twitter’s alleged infringement
`of United States Patent No. 6,628,314 (the “‘314 patent”). (ECF
`No. 1.) Plaintiff B.E. Technology, LLC (“Plaintiff or “B.E.”),
`is the assignee of the ‘314 patent (ECF No. 33 at 2), currently
`owning “all right, title, and interest in the ‘314 patent, and
`has owned all right, title, and interest throughout the period”
`of the alleged infringement (ECF No. 1 ¶ 10).
`B.E. alleges that Twitter infringed the ‘314 patent “by
`using a method of providing demographically targeted advertising
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`that directly infringe at least Claim 11 of the ‘314 patent
`either literally or under the doctrine of equivalents.” (Id.
`¶ 11.)
`B.E. filed a Complaint in this Court on September 10, 2012.
`(ECF No. 1.) Twitter filed its Answer and Counterclaim on
`December 31, 2012. (ECF No. 19.) Twitter thereafter filed its
`Motion to Transfer Venue on January 28, 2013. (ECF No. 30.)
`B.E. filed its Memorandum in Opposition to Defendant’s Motion to
`Transfer Venue on February 14, 2013. (ECF No. 33.) With leave
`of Court, Twitter filed a Reply Memorandum in Support of Its
`Motion to Transfer on March 4, 2013. (ECF No. 36.) On February
`11, 2013, Twitter filed a Motion to Stay pending resolution of
`its Motion to Transfer Venue. (ECF No. 31.) The Court granted
`Twitter’s Motion to Stay on February 11, 2013. (ECF No. 32.)
`Twitter is a Delaware corporation with its principal place
`of business in San Francisco, California, located in the
`Northern District of California. (See Axelsen Decl., ECF No.
`30-3, ¶ 4; ECF No. 30-1 at 1.) To support its Motion, Twitter
`contends that all its relevant employees and its “relevant
`technical documents and evidence” are located in the transferee
`district. (ECF No. 30-1 at 1.) Further, Twitter asserts that
`numerous third-party witnesses on whom it intends to rely are
`also located in or around the Northern District of California.
`(Id. at 5.)
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`B.E. opposes Twitter’s Motion to Transfer. B.E. is a
`limited-liability company incorporated in Delaware. (ECF No. 1
`¶ 2.) B.E. was originally registered in Michigan, but formally
`registered to conduct business in Tennessee in September 2012.
`(ECF No. 33 at 2.) B.E. contends that Memphis, Tennessee, is
`its principal place of business. (ECF No. 1 ¶ 2.) Martin David
`Hoyle (“Hoyle”), B.E.’s founder and CEO, is the named-inventor
`of the ‘314 patent. (ECF No. 33 at 1, 2.) Hoyle has been a
`resident of Tennessee since April, 2006. (Id. at 1, 2.)
`B.E. argues that transfer is inappropriate because it has
`substantial connections with this district. B.E. argues that
`Hoyle has been “present in this District since 2006,” and B.E.
`“since at least 2008,” and this district is B.E.’s principal
`place of business. (Id. at 5.) B.E. also argues that none of
`its witnesses are located in the Northern District of
`California. (Id. at 8.) Further, B.E. argues that its
`corporate documents, including documents relating to the
`“conception and reduction to practice” of the patent-in-suit,
`are located in this District. (Id. at 6.)
`II. STANDARD
`
`Twitter moves the Court to transfer this case to the
`Northern District of California pursuant to 28 U.S.C. § 1404(a).
`(ECF No. 30.) The statute provides that “[f]or the convenience
`of the parties and witnesses, in the interest of justice, a
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`district court may transfer any civil action to any other
`district or division where it might have been brought.” 28
`U.S.C. § 1404(a). “As the permissive language of the transfer
`statute suggests, district courts have ‘broad discretion’ to
`determine when party ‘convenience’ or ‘the interest of justice’
`make a transfer appropriate.” Reese v. CNH Am. LLC, 574 F.3d
`315, 320 (6th Cir. 2009).
`In determining whether to transfer a case under § 1404(a),
`the court must first determine whether the claim could have been
`brought in the transferee district. 28 U.S.C. § 1404(a)
`(allowing transfer to any other district in which the claim
`“might have been brought”). Once the court has made this
`threshold determination, the court must then determine whether
`party and witness “convenience” and “the interest of justice”
`favor transfer to the proposed transferee district. Reese, 574
`F.3d at 320; Esperson v. Trugreen Ltd., No. 2:10-cv-02130-STA-
`cgc, 2010 WL 4362794, at *5 (W.D. Tenn. Oct. 5, 2010), adopted
`2010 WL 4337823 (W.D. Tenn. Oct. 27, 2010). In weighing these
`statutory factors, the court may still consider the private- and
`public-interest factors set forth in the pre-Section 1404(a)
`case, Gulf Oil v. Gilbert, 330 U.S. 501, 508-09 (1947), but
`courts are not burdened with “preconceived limitations derived
`from the forum non conveniens doctrine.” Norwood v.
`Kirkpatrick, 349 U.S. 29, 31 (1955) (quoting All States Freight
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`v. Modarelli, 196 F.2d 1010, 1011 (3d Cir. 1952)) (internal
`quotation marks omitted); Esperson, 2010 WL 4362794, at *5. The
`United States Court of Appeals for the Sixth Circuit has stated
`that when deciding “a motion to transfer under § 1404(a), a
`district court should consider the private interests of the
`parties, including their convenience and the convenience of
`potential witnesses, as well as other public-interest concerns,
`such as systemic integrity and fairness, which come under the
`rubric of ‘interests of justice.’” Moore v. Rohm & Haas Co.,
`446 F.3d 643, 647 n.1 (6th Cir. 2006).
`Additionally, the “interest of justice” factor has been
`interpreted broadly by courts, influenced by the individualized
`circumstances of each case. The United States Court of Appeals
`for the Federal Circuit has set forth a non-exhaustive list of
`pertinent public-interest factors:
`The public interest factors include (1) the
`administrative
`difficulties
`flowing
`from
`court
`congestion; (2) the local interest in having localized
`interests decided at home; (3) the familiarity of the
`forum with the law that will govern the case; and (4)
`the avoidance of unnecessary problems of conflicts of
`laws or in the application of foreign law.
`
`In re Acer Am. Corp., 626 F.3d 1252, 1254 (Fed. Cir. 2010); see
`also In re Nintendo Co., Ltd., 589 F.3d 1194, 1198 (Fed. Cir.
`2009) (finding the local-interest factor weighed heavily in
`favor of transfer); Cincinnati Ins. Co. v. O’Leary Paint Co.,
`676 F. Supp. 2d 623, 633 (W.D. Mich. 2009) (considering
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`additional factors such as the relative docket congestion of the
`transferor and transferee districts).
`Initially, B.E. argues that there is a strong presumption
`in favor of its choice of forum, and that its choice of forum
`should not be disturbed unless the defendant carries its burden
`to demonstrate that the balance of convenience strongly favors
`transfer. (ECF No. 33 at 3-7.) B.E.’s argument is erroneously
`derived from the more stringent forum-non-conveniens standard.
`Compare Hunter Fan Co. v. Minka Lighting, Inc., No. 06–2108
`M1/P, 2006 WL 1627746 (W.D. Tenn. June 12, 2006) (applying the
`appropriate private- and public-interest factors but relying on
`the forum-non-conveniens doctrine to accord strong deference to
`the plaintiff’s choice of forum), with OneStockDuq Holdings, LLC
`v. Becton, Dickinson, & Co., No. 2:12–cv–03037–JPM–tmp, 2013 WL
`1136726, at *3 (W.D. Tenn. Mar. 18, 2013), and Roberts Metals,
`Inc. v. Florida Props. Mktg. Grp., Inc., 138 F.R.D. 89, 92-93
`(N.D. Ohio 1991) (recognizing defendants need to make a lesser
`showing to overcome plaintiff’s choice of forum under §
`1404(a)), aff’d per curiam, 22 F.3d 1104 (6th Cir. 1994).
`Although there is a strong presumption in favor of the
`plaintiff’s choice of forum under the doctrine of forum non
`conveniens, under § 1404(a), a plaintiff’s choice of forum may
`be considered, but is entitled to less deference. Discussing
`the difference between the common-law doctrine of forum non
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`conveniens and the federal transfer-of-venue statute in Norwood,
`the Supreme Court stated,
`When Congress adopted § 1404(a), it intended to
`do more than just codify the existing law on forum non
`conveniens. . . . [W]e believe that Congress, by the
`term “for the convenience of parties and witnesses, in
`the interest of justice,” intended to permit courts to
`grant
`transfers
`upon
`a
`lesser
`showing
`of
`inconvenience. This is not to say that the relevant
`factors have changed or that the plaintiff’s choice of
`forum is not to be considered, but only that the
`discretion to be exercised is broader.
`
`Norwood, 349 U.S. at 32; see also Lemon v. Druffel, 253 F.2d
`680, 685 (6th Cir. 1958) (“The choice of the forum by the
`petitioner is no longer as dominant a factor as it was prior to
`the ruling in Norwood v. Kirkpatrick[.]”); Esperson, 2010 WL
`4362794, at *5-6.
`Defendant’s burden under § 1404(a) is to demonstrate that a
`change of venue to the transferee district is warranted. See
`Eaton v. Meathe, No. 1:11-cv-178, 2011 WL 1898238, at *2 (W.D.
`Mich. May 18, 2011); Amphion, Inc. v. Buckeye Elec. Co., 285 F.
`Supp. 2d 943, 946 (E.D. Mich. 2003); Roberts Metals, Inc., 138
`F.R.D. at 93. “Merely shifting the inconvenience from one party
`to another does not meet Defendant’s burden.” McFadgon v. Fresh
`Mkt., Inc., No. 05-2151-D/V, 2005 WL 3879037, at *2 (W.D. Tenn.
`Oct. 21, 2005). “[T]he movant must show that the forum to which
`he desires to transfer the litigation is the more convenient one
`vis a vis the Plaintiff’s initial choice.” Roberts Metals,
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`Inc., 138 F.R.D. at 93 (quoting Mead Corp. v. Oscar J. Boldt
`Constr. Co., 508 F. Supp. 193, 198 (S.D. Ohio 1981)) (internal
`quotation marks omitted). If the court determines that the
`“balance between the plaintiff’s choice of forum and defendant’s
`desired forum is even, the plaintiff’s choice of [forum] should
`prevail.” Stewart v. Am. Eagle Airlines, Inc., No. 3:10-00494,
`2010 WL 4537039, at *2 (M.D. Tenn. Nov. 3, 2010).
`III. ANALYSIS
`
`Twitter asserts that B.E. could have brought this action in
`the Northern District of California. (See ECF No. 30-1 at 7.)
`B.E. does not dispute this assertion. (See ECF No. 33 at 4.)
`The Court agrees that B.E. could have brought suit in the
`Northern District of California. Therefore, the only issue
`remaining is whether the balance of the statutory factors — the
`convenience to the witnesses, the convenience to the parties,
`and the interest of justice — favors transfer to the Northern
`District of California. The Court will address each statutory
`factor separately and balance these factors to determine whether
`transfer to the Northern District of California is proper
`pursuant to § 1404(a).
`A. Convenience of the Witnesses
`When asserting that a transferee district is more
`convenient for witnesses, a party “must produce evidence
`regarding the precise details of the inconvenience” of the forum
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`chosen by the plaintiff. Esperson, 2010 WL 4362794, at *8. To
`satisfy its burden, the movant must do “more than simply
`assert[] that another forum would be more appropriate for the
`witnesses; he must show that the witnesses will not attend or
`will be severely inconvenienced if the case proceeds in the
`forum district.” Id. (quoting Roberts Metals, Inc., 138 F.R.D.
`at 93). Further, “[t]o sustain a finding on [this factor] . . .
`the party asserting witness inconvenience has the burden to
`proffer, by affidavit or otherwise, sufficient details
`respecting the witnesses and their potential testimony to enable
`a court to assess the materiality of evidence and the degree of
`inconvenience.” Eaton, 2011 WL 1898238, at *3 (quoting Rinks v.
`Hocking, 1:10-CV-1102, 2011 WL 691242, at *3 (W.D. Mich. Feb.
`16, 2011)) (internal quotation marks omitted). It is the
`“materiality and importance of the testimony of prospective
`witnesses, and not merely the number of witnesses,” that is
`crucial to this inquiry. Rinks, 2011 WL 691242, at *3.
`Twitter argues that witness convenience favors transfer to
`the Northern District of California. (ECF No. 30-1 at 9-11; ECF
`No. 36 at 5-7.) To support this contention, Twitter asserts
`that all of the witnesses on which it intends to rely are
`located in the transferee district. These witnesses include
`employees with knowledge regarding its engineering operations
`and employees with knowledge of its sales, finance, and
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`marketing operations. (ECF No. 30-1 at 4-5 (citing Axelsen
`Decl., ECF No. 30-3, ¶¶ 6, 11).) Additionally, Twitter asserts
`that “numerous important third-party prior art witnesses and
`sources of prior art information have already been identified in
`the Northern District of California.” (Id. at 5.)
`In response, B.E. argues that transfer to the Northern
`District of California would be equally inconvenient to B.E.’s
`witnesses, “none of whom are located in the Northern District of
`California.” (ECF No. 33 at 8.) B.E. identifies Hoyle, the
`named-inventor of the patent-in-suit and founder and CEO of
`B.E., as its key witness who is located in the Western District
`of Tennessee. (Id. at 6.)
`Because the convenience of party and non-party witnesses is
`given different weight, the Court will analyze the witnesses
`separately. See Azarm v. $1.00 Stores Servs., Inc., No. 3:08-
`1220, 2009 WL 1588668, at *4 (M.D. Tenn. June 5, 2009) (“[T]he
`convenience of potential non-party witnesses, who are not
`subject to the control of the parties, is a particularly weighty
`consideration, because it is generally presumed that party
`witnesses will appear voluntarily in either jurisdiction, but
`non-party witnesses, with no vested stake in the litigation, may
`not.”).
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`1. Party Witnesses
`
`Twitter asserts that its “[e]ngineers who may have
`knowledge regarding advertising features on Twitter’s website
`work in the San Francisco[, California] headquarters.” (Axelsen
`Decl., ECF No. 30-3, ¶ 6.) Twitter also asserts that its
`employees with knowledge of its “U.S. sales, finance, and
`marketing operations” are located in San Francisco, California.
`(Id.) In short, Twitter argues that it “has established that
`all of its witnesses reside in the Northern District of
`California.” (ECF No. 36 at 6.) In its Reply, Twitter defends
`its general identification of potential employee-witnesses by
`stating that identifying its witnesses with more specificity at
`this early stage would be “premature and prejudicial.” (Id.)
`Twitter indicates that the engineers that are likely
`witnesses are “important to Twitter’s business and their absence
`for significant periods of time would adversely affect
`operations.” (ECF No. 30-1 at 10.) Twitter does not, however,
`provide any evidence showing that these potential employee-
`witnesses will be unwilling to testify in this district if asked
`to do so. See Esperson, 2010 WL 4362794, at *8. Moreover,
`courts have noted that “normally a corporation is able to make
`its employees available to testify when needed.” Clark v.
`Dollar Gen. Corp., No. 3-00-0729, 2001 U.S. Dist. LEXIS 25975,
`at *9 (M.D. Tenn. Mar. 6, 2001); see also Zimmer Enters. v.
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`Atlandia Imps., Inc., 478 F. Supp. 2d 983, 991 (S.D. Ohio Mar.
`14, 2007) (finding that the convenience of witnesses who are
`employees “will not ordinarily be considered, or at least, that
`the convenience of such employees will not generally be given
`the same consideration as is given to other witnesses”).
`Accordingly, it appears that Twitter’s employees will be able to
`attend absent any evidence to the contrary.
`The Court agrees that Twitter’s employees related to the
`development and operation of the accused products and its
`employees related to sales, finance, and marketing are located
`in the Northern District of California, and that their testimony
`is likely material. Twitter, however, has not indicated how
`many employees it would be inclined to call as potential
`witnesses and has not provided any indication of the necessity
`of those employees to its business. Twitter stated generally
`that its operation would be “adversely affected” by employee
`absence for “significant periods of time,” but the Court has no
`indication as to what constitutes either “adverse” effects or a
`“significant period of time.” As a result, the Court cannot
`assess the degree to which Twitter’s business would be disrupted
`compared to the disruption B.E. will endure due to its CEO’s
`absence should the case be transferred. Accordingly, the Court
`finds transfer would only shift the inconvenience to B.E. See
`McFadgon, 2005 WL 3879037, at *2.
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`Despite showing the materiality of the testimony of its
`proposed employee-witnesses, Twitter does not satisfy its
`burden. Twitter argues that due to the distance between Memphis
`and the Northern District of California, approximately 1700
`miles, travel to Memphis would be inconvenient and disruptive.
`(ECF No. 30-1 at 9-10.) Yet, the same is true for B.E.’s
`witnesses, who B.E. asserts do not reside in the transferee
`district. (ECF No. 33 at 8.) Therefore, because § 1404(a)
`provides for transfer “to a more convenient forum, not to a
`forum likely to prove equally convenient or inconvenient,”
`distance of travel for employee witnesses does not weigh in
`favor of transfer. Hunter Fan, 2006 WL 1627746, at *2 (citing
`Van Dusen v. Barrack, 376 U.S. 612, 645-46 (1964)).
`Twitter further argues that because it intends to call
`multiple employee-witnesses with testimony central to the claims
`at issue and because B.E. likely has only one witness, Hoyle,
`this factor weighs in favor of transfer. (ECF No. 30-1 at 10-
`11.) Twitter states, “the disruption to the large number of
`employees from Twitter . . . who may be forced to leave their
`homes and jobs to testify in Tennessee is not offset by any
`corresponding inconvenience to require the single inventor, who
`has an interest in this litigation, to travel to California.”
`(Id. at 10.) While B.E. did not specifically identify any
`witnesses beyond Hoyle, B.E. does not have the burden to do so.
`
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`Despite B.E. not identifying any individuals beyond Hoyle,
`Twitter’s general identification of its employees as material
`witnesses does not satisfy its burden on this factor. A simple
`numerical advantage is insufficient on the issues raised by a
`motion to transfer. As a result, the witness-convenience factor
`does not weigh in favor of transfer.
`Moreover, B.E. argues that “[i]t is likely that Twitter’s
`California-based employees will be deposed in California where
`B.E.’s lead counsel is based.” (ECF No. 46 at 12.) This
`further indicates that the witness-convenience factor does not
`weigh in favor of transfer. See Hunter Fan, 2006 WL 1627746, at
`*2 (finding relevant that the plaintiff planned to take
`depositions of the defendant’s witnesses in California in
`determining that the witness convenience factor did not favor
`transfer).
`2. Non-Party Witnesses
`While convenience to party witnesses is an important
`consideration, “it is the convenience of non-party witnesses,
`rather than employee witnesses . . . that is the more important
`factor and is accorded greater weight.” Steelcase Inc. v. Smart
`Techs., 336 F. Supp. 2d 714, 721 (W.D. Mich. Mar. 5, 2004)
`(citation omitted) (internal quotation marks omitted).
`Twitter asserts that, at the time of the filing of its
`Motion, it had identified “at least twelve prior art patents
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`with clear ties to companies or inventors in the Northern
`District of California.” (ECF No. 30-1 at 12.) Twitter states
`that in order to “prepare its defenses,” it “will need to gather
`documents and obtain testimony from these individuals and
`companies in California.” (Id.) Twitter further contends that
`if the case remains in the transferor district, it would “be
`forced to present critical prior art testimony trough deposition
`transcript instead of live testimony – which will severely
`undercut its ability to put on an effective defense at trial.”
`(Id.; see also ECF No. 36 at 8.) Twitter finally asserts that
`it would be unable to secure the attendance of these potential
`prior-art witnesses by subpoena if the case remains in the
`transferor district and that it is “highly doubtful” that these
`witnesses would be “willing to voluntarily travel across the
`country to testify at trial in Tennessee.” (ECF No. 36 at 8.)
`B.E. argues that the convenience of non-party witnesses is
`not entitled to great weight in the instant case because Twitter
`has not established that the “third party testimony will be
`material or important.” (ECF No. 33 at 11.) B.E. asserts that
`Twitter has not stated the “relevance, materiality, and
`importance” of the non-party witnesses’ testimony. (Id. at 12.)
`B.E. further argues that prior-art testimony is “almost certain
`to be severely limited at the time of trial” and, therefore,
`such testimony does not weigh in favor of transfer. (Id. at
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`11.) Additionally, B.E. contends that Twitter has “fail[ed] to
`establish the current locations of any of the inventors,”
`therefore there is not reliable indication that these prior-art
`witnesses are actually located in the transferee district.
`(Id.)
`The availability of compulsory process for unwilling
`witnesses is a consideration closely related to the convenience-
`of-witnesses factor and the costs of procuring the witness, and
`therefore is an important consideration for the Court. See,
`e.g., In re Acer, 626 F.3d at 1255; Rinks, 2011 WL 691242, at
`*4. Whether this factor should be given considerable weight
`depends on the materiality of the testimony to the resolution of
`the case. Rinks, 2011 WL 691242, at *4. A federal court in the
`Northern District of California would be able to compel the
`prior-art witnesses residing in that District or within the
`state of California to testify at trial. See Fed. R. Civ. P.
`45(b)(2); Brackett v. Hilton Hotels Corp., 619 F. Supp. 2d 810,
`821 (N.D. Cal. 2008) (“The California district courts have the
`power to subpoena witnesses throughout the state pursuant to
`[Federal Rule of Civil Procedure] 45(b)(2)(C) . . . .”). In
`contrast, the prior-art witnesses would not be subject to the
`subpoena power in the Western District of Tennessee, see Fed. R.
`Civ. P 45(c)(3)(A)(ii), but would be available for deposition in
`the Northern District of California if unwilling to testify in
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`this District. Therefore, the testimony of such witnesses
`potentially would “not be live and therefore could be less
`persuasive.” Rinks, 2011 WL 691242, at *4.
`The Court finds that Twitter has met its burden to show the
`nature of the prior-art witnesses’ testimony, and that the
`testimony is likely material to Twitter’s invalidity and non-
`infringement contentions. Twitter, however, has only stated
`generally that depositions of non-party witnesses would be
`inadequate and live testimony from non-party witnesses required.
`To the extent the non-party witnesses’ testimony may be
`presented by deposition, witness inconvenience would not be an
`issue. Twitter states that these prior-art witnesses will be
`necessary for trial, but recognizes that “likely many more” non-
`party witnesses will be necessary. (ECF No. 30-1 at 12.) This
`general statement relating to the number of non-party witnesses,
`combined with the general statement that without transfer
`Twitter would be forced to present “critical prior art testimony
`through deposition transcript instead of live testimony” which
`would “severely undercut its ability to put on an effective
`defense at trial,” is not sufficient to allow the Court to
`determine (1) the number of non-party witnesses Twitter
`requires; and (2) whether live testimony of these non-party
`witnesses is necessary. Further, Twitter is only able to
`estimate that it is “highly doubtful” that any of the non-party
`
`
`
`17
`
`

`
`Case 2:12-cv-02783-JPM-cgc Document 42 Filed 07/19/13 Page 18 of 27 PageID 404
`
`witnesses would be unwilling to testify in this District if
`asked to do so. As a result, this factor weighs only slightly
`in favor of transfer.
`
`B. Convenience of the Parties
`Twitter argues that the convenience of the parties requires
`the Court transfer this action to the Northern District of
`California. (ECF No. 30-1 at 1-2.) While Twitter organizes its
`arguments somewhat differently than the Court, the Court finds
`the considerations relevant to the convenience-of-the-parties
`factor are the location of the sources of proof and the parties’
`financial hardships due to litigation in the chosen forum.
`1. Location of Sources of Proof
`Twitter argues that all of its “relevant documents,” are
`located in either the transferee district. (ECF No. 30-1 at 8.)
`Twitter states that its “[t]echnical documentation related to
`the accused advertising-related technology is stored in the
`Northern District of California or easily accessible from
`Twitter’s San Francisco headquarters.” (Id. (citing Axelson
`Decl., ECF No. 30-3, ¶ 10).) Twitter further contends that B.E.
`has only produced 222 documents in its initial disclosures
`relating to the conception and reduction to practice of the ‘314
`Patent, and that “the size of this production belies B.E.’s
`claim of inconvenience, considering that the bulk of discovery
`in this case and a significantly greater number of documents are
`
`
`
`18
`
`

`
`Case 2:12-cv-02783-JPM-cgc Document 42 Filed 07/19/13 Page 19 of 27 PageID 405
`
`located in California at Twitter’s offices.” (ECF No. 36 at 4.)
`Further, Twitter notes that these documents have already been
`produced, thus there is no ongoing inconvenience to B.E.
`relating to the sources of proof. (Id.)
`B.E. argues that, because its CEO resides in the Western
`District of Tennessee, its corporate documents and records,
`“including documents demonstrating the conception and reduction
`to practice of [the patent-in-suit],” are located in the Western
`District. (ECF No. 33 at 6, 12-14.) B.E. notes that while
`Twitter’s sources of proof are located in the Northern District
`of California, B.E.’s own sources of proof are located in
`Tennessee and have been maintained there for years. (Id. at 12-
`13.) B.E. also contends that “the location of relevant
`documentary evidence is increasingly less important in deciding
`motions to transfer,” and that because documents can be
`exchanged electronically the weight given this factor should be
`minimal. (Id. at 13.) B.E. finally argues that this factor
`does not weigh in favor of transfer because “it can be expected
`that Twitter will eventually produce its documents to B.E.’s
`lead counsel in California, not to B.E. in Tennessee.” (Id. at
`14.)
`As an initial matter, the Court disagrees with B.E.’s
`contention that advances in electronic document transfer reduce
`the importance of the location-of-sources-of-proof factor. This
`
`
`
`19
`
`

`
`Case 2:12-cv-02783-JPM-cgc Document 42 Filed 07/19/13 Page 20 of 27 PageID 406
`
`notion has been expressly rejected by the Federal Circuit. See,
`e.g., In re Link_A_Media Devices Corp., 662 F.3d 1221, 1224
`(Fed. Cir. 2011) (reversing a district court that did not
`consider the factor, stating, “While advances in technology may
`alter the weight given to these factors, it is improper to
`ignore them entirely”); In re Genentech, Inc., 566 F.3d 1338,
`1345-46 (Fed. Cir. 2009) (finding clear error where a district
`court “minimized the inconvenience of requiring the petitioners
`to transport their documents by noting that ‘[t]he notion that
`the physical location of some relevant documents should play a
`substantial role in the venue analysis is somewhat antiquated in
`the era of electronic storage and transmission’” (quoting
`Sanofi-Aentis Deutschland GmbH v. Genentech, Inc., 607 F. Supp.
`2d 769, 777 (E.D. Tex. 2009))).
`The Court agrees that it is likely that the sheer volume of
`documents Twitter has in its possession outnumbers the patent-
`related documents in B.E.’s possession, and that B.E. has
`already produced documents related to the conception and
`reduction to practice of the ‘314 Patent, but the Court
`disagrees that this is enough to tip the balance in favor of
`transfer. The Court finds that both parties maintain documents
`in their respective districts; that these documents will be
`integral to the proceedings; and that Twitter will be expected
`to serve its documents on B.E.’s counsel in Northern California,
`
`
`
`20
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`Case 2:12-cv-02783-JPM-cgc Document 42 Filed 07/19/13 Page 21 of 27 PageID 407
`
`not in the Western District of Tennessee. Twitter’s reliance on
`L&P Property Management Co. v. JTMD, LLC, No. 06-13311, 2007 WL
`295027 (E.D. Mich. Jan. 29, 2007), is misplaced. (See ECF No.
`30-1 at 9.) In L&P Property Management, the court found that
`transfer was appropriate as all of the movant’s relevant
`documents were located in the transferee district and there were
`no relevant documents in the transferor district. See L&P Prop.
`Mgmt. Co., 2007 WL 295027, at *4. In the instant case, Twitter
`indicated that its relevant documents are located in the
`transferee district, and B.E. has shown that its relevant
`documents are located in the transferor district. Further, B.E.
`stated that the documents in the transferor district
`“include[ed] those relating to the conception and reduction to
`practice” of the patent-in-suit (Hoyle Decl., ECF No. 33-1,
`¶ 7), but did not indicate that these were the only documents in
`the transferor district. Taken together, the aforementioned
`facts indicate that as to the location of the sources of proof,
`the Northern District of California may only be a somewhat more
`convenient venue for the parties to the instant case. This
`factor, however, is not sufficient, by itself, to require
`transfer.
`
`2. Financial Hardships Attendant to Litigating in
`the Chosen Forum
`
`21
`
`
`
`
`
`

`
`Case 2:12-cv-02783-JPM-cgc Document 42 Filed 07/19/13 Page 22 of 27 PageID 408
`
`Twitter argues that its employee-witnesses with relevant
`knowledge to the instant case are all located in the Northern
`District of California. (ECF No. 30-1 at 9.) As a result,
`Twitter contends that travel to Tennessee would impose a
`significant inconvenience to its witnesses in terms of cost and
`the disruption to the witnesses’ lives. (Id. at 9-11.)
`Additionally, Twitter argues that the absence of its employee-
`witnesses from its headquarters in the transferee district would

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