Case 2:17-cv-00513-JRG Document 140 Filed 05/23/18 Page 1 of 18 PageID #: 5385
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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`v.
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`HUAWEI DEVICE USA INC., HUAWEI
`DEVICE CO., LTD., HUAWEI DEVICE
`(DONGGUAN) CO., LTD.,
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`Defendants.
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`CIVIL ACTION NO. 2:17-CV-00513-JRG
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`§
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`MEMORANDUM OPINION AND ORDER
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`Before the Court is Defendants Huawei Device USA Inc. (“Huawei USA”), Huawei
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`Device Co., Ltd. (“Huawei Device”), and Huawei Device (Dongguan) Co., Ltd.’s, (“Huawei
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`Dongguan,” collectively, “Huawei”) Motion to Transfer Venue to the Northern District of
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`California (Dkt. No. 36, “the Motion”), wherein Huawei moves this Court to transfer venue for
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`this action pursuant to 28 U.S.C. § 1404(a). Having considered the Motion and the relevant
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`authorities, the Court is of the opinion that the Motion should be DENIED for the reasons set forth
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`herein.
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`I.
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`LEGAL STANDARD
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`Section 1404(a) provides that “[f]or the convenience of parties and witnesses, in the interest
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`of justice, a district court may transfer any civil action to any other district or division where it
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`might have been brought.” 28 U.S.C. § 1404(a). The first inquiry when analyzing a case’s
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`eligibility for § 1404(a) transfer is “whether the judicial district to which transfer is sought would
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`have been a district in which the claim could have been filed.” In re Volkswagen AG, 371 F.3d
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`Case 2:17-cv-00513-JRG Document 140 Filed 05/23/18 Page 2 of 18 PageID #: 5386
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`201, 203 (5th Cir. 2004) (“Volkswagen I”). “Any civil action for patent infringement may be
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`brought in the judicial district where the defendant resides, or where the defendant has committed
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`acts of infringement and has a regular and established place of business.” 28 U.S.C. § 1400(b)
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`(2012); TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514, 1519 (2017) (Ҥ
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`1400(b) ‘is the sole and exclusive provision controlling venue in patent infringement actions.’”
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`(quoting Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 229 (1957))). For purposes
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`of § 1400(b), a domestic corporation resides only in its state of incorporation. TC Heartland, 137
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`S. Ct. at 1521.
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`Once the initial threshold of proving the proposed transferee district is one where the suit
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`might have been brought is met, courts analyze both public and private factors relating to the
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`convenience of parties and witnesses as well as the interests of particular venues in hearing the
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`case. See Humble Oil & Ref. Co. v. Bell Marine Serv., Inc., 321 F.2d 53, 56 (5th Cir. 1963); In re
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`Nintendo Co., Ltd., 589 F.3d 1194, 1198 (Fed. Cir. 2009). The private factors are: (1) the relative
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`ease of access to sources of proof; (2) the availability of compulsory process to secure the
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`attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical
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`problems that make trial of a case easy, expeditious, and inexpensive. Volkswagen I, 371 F.3d at
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`203 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)). The public factors are (1)
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`the administrative difficulties flowing from court congestion; (2) the local interest in having
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`localized interests decided at home; (3) the familiarity of the forum with the law that will govern
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`the case; and (4) the avoidance of unnecessary problems of conflict of laws or in the application
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`of foreign law. Id. These factors are to be decided based on “the situation which existed when suit
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`was instituted.” Hoffman v. Blaski, 363 U.S. 335, 343 (1960). Though the private and public factors
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`apply to most transfer cases, “they are not necessarily exhaustive or exclusive,” and no single
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`2
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`factor is dispositive. In re Volkswagen of Am., Inc., 545 F.3d 304, 314–15 (5th Cir. 2008)
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`(“Volkswagen II”).
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`While a plaintiff’s choice of venue is not an express factor in this analysis, the appropriate
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`deference afforded to the plaintiff’s choice is reflected by the defendant’s elevated burden of proof.
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`Id. at 315. In order to support its claim for a transfer under § 1404(a), the moving defendant must
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`demonstrate that the transferee venue is “clearly more convenient” than the venue chosen by the
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`plaintiff. Id. Absent such a showing, however, the plaintiff’s choice is to be respected. Id.
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`Additionally, when deciding a motion to transfer venue under § 1404(a), the court may consider
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`undisputed facts outside of the pleadings such as affidavits or declarations, but it must draw all
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`reasonable inferences and resolve factual conflicts in favor of the non-moving party. See Sleepy
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`Lagoon, Ltd. v. Tower Group, Inc., 809 F. Supp. 2d 1300, 1306 (N.D. Okla. 2011); see also Cooper
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`v. Farmers New Century Ins. Co., 593 F. Supp. 2d 14, 18–19 (D.D.C. 2008).
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`II.
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`DISCUSSION
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`a. The Action May Have Been Brought in the Transferee District.
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`As noted above, the threshold inquiry in a § 1404(a) analysis requires a court to find that the
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`action could have been filed in the proposed transferee district. Volkswagen I, 371 F.3d at 203. A party
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`cannot unilaterally waive proper venue under § 1404 such that transfer would be permitted—upon
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`a finding of convenience—to a district desired by the movant but not one in which the action might
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`have been brought. See Hoffman v. Blaski, 363 U.S. 335, 344 (1960).
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`Here, Huawei admits that proper jurisdiction over each Huawei Defendant exists in the
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`Northern District of California. “Huawei USA is registered to do business in the State of
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`California, has business operations in Santa Clara within N.D. Cal., and therefore is subject to
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`jurisdiction in that district.” (Dkt. No. 36 at 9 (citing J. McIntyre Mach., Ltd. v. Nicastro, 131 S.
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`Ct. 2780, 2787 (2011))). “With respect to foreign defendants Huawei Device and Huawei Dongguan,
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`3
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`venue is appropriate in N.D. Cal.” (Id. (citing 28 U.S.C. § 1391(c)(3))). Plaintiff AGIS Software
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`Development LLC (“AGIS”) does not dispute these admissions. (Dkt. No. 56 at 8 (“[T]his suit could
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`have been brought against Huawei in the proposed transferee district.”)).
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`The Court finds that this action may have been brought in the proposed transferee district of
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`the Northern District of California and proceeds to the second portion of the analysis, the private and
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`public convenience factors.
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`b. Convenience Factors
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`i. Relative Ease of Access to Sources of Proof
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`Huawei argues that this factor “favors transfer because . . . relevant documents, including
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`highly proprietary source code, and witnesses with knowledge relating to the development,
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`manufacturing, and management of the Accused Devices and the third-party Accused Applications are
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`located in N.D. Cal. or at locations far more convenient to N.D. Cal. than to E.D. Tex.” (Dkt. No. 36
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`at 10).
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`Huawei submits that, as to Huawei Device and Huawei Dongguan, both are Chinese
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`corporations which design and manufacture the Accused Devices outside of the United States,
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`including any pre-loaded installation of Google software on those devices. (Dkt. No. 36 at 4).
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`“Huawei Device and Huawei Dongguan’s employees who design and manufacture Huawei’s
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`smartphones and tablets reside in China.” (Id.) Neither of these companies have facilities or
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`employees in Texas, nor do they maintain any documents in Texas. (Id.) Huawei USA is a Texas
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`corporation with its principal place of business in Plano, Texas. (Id.) Huawei submits, however, that
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`none of its Plano-based employees are involved in research and development, or sales and marketing
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`of the Accused Devices, and argues that its Plano facility “primarily handles corporate-level functions
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`that are not product or technology specific.” (Id. at 4–5).
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`4
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`Instead, Huawei argues, Huawei USA’s research and development, testing, and sales and
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`marketing efforts for the Accused Devices occur primarily within California, specifically in Huawei
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`USA’s Santa Clara, Mountain View, and San Diego facilities in California. (Id. at 5).
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`Related to these efforts, Huawei has identified in its Motion two witnesses: Wen Wen and Yao Wang.
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`Huawei identified Wen Wen as having “knowledge of sales and marketing efforts for the Accused
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`Devices;” Wen Wen is employed at the Bellvue facility in California. (Id.) Huawei has also identified
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`Yao Wang as its only other party witness; Yao Wang is a Principal Engineer who works out of
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`Huawei’s Santa Clara office.
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`Unsurprisingly, there is much speculation from both sides under this factor about third party
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`witnesses. Specifically, Huawei argues that “Accused Applications are all developed by third parties
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`located in and around N.D. Cal.,” such as Google, and, thus, “Google’s knowledge and documents will
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`be essential to showing how these applications function.” (Dkt. No. 36 at 5–6). Huawei supports this
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`argument with a number of declarations by Google employees. (Dkt. Nos. 36-4, 36-5, 36-6). The
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`declarations address various Google software products or services, such as Google Maps for Mobile,
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`Google Hangouts or Messenger, and Find My Device. (Id.) Each of the declarations states that “at
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`least” the engineers at Google’s Mountain View campus have knowledge regarding the current design,
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`development, and operation of those various products and that the declarant is unaware of any
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`employee with relevant knowledge who resides or works in the Eastern District of Texas. (Id.) Further,
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`the declarations state that:
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`Nearly all the documents relating to [the declaration’s product/service], including
`highly proprietary information and source code, are either physically present in or
`electronically accessible from Mountain View, California, as that is where many of the
`personnel most qualified to identify and locate such documents reside. I am aware of
`no documents described in this paragraph being located in the Eastern District of Texas.
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`(Id.) Notably, Huawei does not identify with particularity any specific Google employees that they
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`anticipate calling at trial or any documentation they plan to present as evidence. (See, generally, Dkt.
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`No. 36).
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`5
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`However, Huawei has specifically identified three additional non-Google third party
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`witnesses: Christopher Rice (a named co-inventor on the two of the patents-in-suit, resident of
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`Redmond, Washington); Daniel J. Burns (the prosecuting attorney for at least three of the four patents-
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`in-suit (i.e., the ’055, ’838, and ’251 Patents), resident of Santa Clara, CA, within N.D. Cal.); and,
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`generally, “[m]ost of the inventors of prior art references that appear related to the Patents-In-Suit”
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`(asserted to reside in N.D. Cal. or elsewhere in California, with none of the inventors residing in
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`Texas.). (Dkt. No. 36 at 7).
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` Huawei misunderstands how this factor is properly evaluated, including in its analysis various
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`witnesses in support of its evaluation of access to sources of proof in the Northern District of California.
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`First, sources of proof in terms of the Volkswagen factor refers exclusively to sources of documentary
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`or physical proof. See Volkswagen II, 545 F.3d at 316 (“All of the documents and physical evidence
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`relating to the accident are located in the Dallas Division, as is the collision site.”) (emphasis added);
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`see also id. (noting that while “access to some sources of proof presents a lesser inconvenience now
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`than it might have absent recent developments does not render this factor superfluous” in reference to
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`advances in copying technology and information storage). Access to witnesses for presentation at
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`trial, which is the purpose of the venue transfer analysis,1 is properly considered under either the
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`second factor, relating to the Court’s subpoena power to compel testimony at trial, or the third factor,
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`which relates to the cost of attendance for willing witnesses. These factors do not permit a single
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`source of proof or witness to be “double counted” or unduly influence the analysis. See Peteski Prods.,
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`Inc. v. Rothman, No. 5:17-CV-00122-JRG, 2017 WL 8943154, at *3 (E.D. Tex. Nov. 13, 2017)
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`1 Similarly, the inquiry regarding access to sources of proof correlates to production and presentation to the jury at
`trial. See Volkswagen II, 545 F.3d at 316; accord Leroy v. Great W. United Corp., 443 U.S. 173, 183–84 (1979) (“In
`most instances, the purpose of statutorily specified venue is to protect the defendant against the risk that a plaintiff
`will select an unfair or inconvenient place of trial”) (emphasis added). The same principle holds true for consideration
`of documentary evidence under the first factor, i.e., bringing physical materials to the Court for exhibition before the
`factfinder. See In re TS Tech USA Corp., 551 F.3d 1315, 1321 (Fed. Cir. 2008) (considering only “physical and
`documentary evidence” in analyzing the first factor).
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`(excluding willing third-party witnesses and party witnesses (presumed to be willing) from
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`consideration under the compulsory process factor).
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`Accordingly, the only question the Court can consider under this factor is the access to
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`documentary evidence including source code.2 On this point and as outlined above, Huawei has
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`presented argument that its relevant documents are located at its facilities in China or its research and
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`development facilities in the Northern District, and that Google’s allegedly relevant documents are
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`located at Google’s Mountain View campus.
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`AGIS submits that it is a Texas limited liability company with a principal place of business
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`located at 100 W. Houston Street, Marshall, and offices in Lenexa, Kansas, Jupiter, Florida and Austin,
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`Texas. (Dkt. No. 56 at 3). AGIS represents that “AGIS’s proof will come from records maintained in
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`the offices of its related companies in Jupiter, Florida; Lenexa Kansas; Austin, Texas; and in Allen,
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`Texas in the office of its consultant Eric Armstrong.” (Id. at 10). “AGIS also intends to obtain evidence
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`relevant to damages, such as the consumer market value of the features enabled by the Patents-in-Suit,
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`consumer surveys and marketing information regarding demand for particular applications and features
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`from third-party cellular carriers, including AT&T, Sprint, and Verizon,” whose headquarters are in
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`Dallas, Texas (AT&T), Overland, Kansas (Sprint), and Basking Ridge, New Jersey (Verizon), each
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`of which is, AGIS submits, “substantially closer and more convenient to this District than to the
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`Northern District of California.” (Id.) AGIS also submits that it has no sources of proof in the proposed
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`transferee district. (Id.)
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`Further, AGIS identifies “[a]n important non-party witness for AGIS [Mr.] Eric Armstrong, a
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`former AGIS Inc. employee who is now a full-time consultant for AGIS and AGIS Inc.,” who “lives
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`and works in Allen, Texas, in this District,” and who is “expected to have documents relevant to this
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`2 The Court may also consider sources of physical evidence, but such evidence has not been identified in this case.
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`7
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`action in his office in this District, including e-mails regarding the development of software and
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`marketing which are stored on his computer.” (Dkt. No. 56 at 5).
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`Huawei argues that AGIS’s prospective reliance on the third-party cellular carriers’
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`documentary evidence “is self-serving speculation” since the carriers “have no responsibility for the
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`development and maintenance of those applications,” and faults AGIS for failing to present proof to
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`the contrary. (Dkt. No. 74 at 2). However, as AGIS points out, Huawei’s prospective reliance on the
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`third-party Google’s documentary evidence is also speculative and lacks specificity since “Huawei
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`fails to specify what these documents are, or why they are important to the case, and does not contend
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`that these documents are inaccessible from this District.” (Dkt. No. 81).3
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`The Court notes, first, that AGIS misstates the test under applicable Fifth Circuit law: this
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`inquiry does not focus on whether the documentary sources of proof are “accessible” from this district.
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`“Despite technological advances in transportation of electronic documents, physical accessibility to
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`sources of proof continues to be a private interest factor to be considered.” Implicit v. Trend Micro,
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`No. 6:16-cv-00080-JRG, 2016 U.S. Dist. LEXIS 191571, at *5 (E.D. Tex. Sep. 1, 2016) (citing
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`Volkswagen II, 545 F.3d at 316). However, AGIS is correct to raise the failure of Huawei to identify
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`with particularity the documents it refers to or their specific importance to Huawei’s case. Huawei
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`essentially argues that because AGIS identifies functionality related to Google products and services
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`that Google must be a major source of information to be presented at trial, but does not demonstrate
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`why that must be the case.4 AGIS’s argument that “AGIS has not relied on any confidential Google
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`3 Additionally, the Court notes that this is exactly the kind of speculative inquiry which Courts should not be engaging
`in at this early stage in the development of the case, yet they are required to do so. See Implicit, LLC v. Palo Alto
`Networks, Inc., No. 6:17-CV-00336-JRG, 2018 WL 1942411, at *4 (E.D. Tex. Feb. 20, 2018) (“The venue analysis,
`by its nature, calls on courts to weigh scenarios that tend to be speculative and conjectural.”) (quoting Oyster Optics
`v. Cisco Systems, Inc., No. 2:16-cv-1301-JRG, Dkt. No. 45 at 7 (E.D. Tex. Dec. 8, 2017)). The presence of relevant
`documents, and, indeed, their alleged relevance, is precisely the sort of factual development intended to be addressed
`by general discovery, yet the Court is asked to guess as to whether or not it thinks that a given discovery avenue will
`bear fruit.
`4 The Court also notes the peculiarity of the various Google declaration’s statements indicating that “at least”
`individuals at the Mountain View campus possess relevant knowledge but not defeating, or even addressing, AGIS’s
`submission that Google’s Austin campus (which is admittedly not within this District), includes staff dedicated to a
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`8
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`code in its preliminary infringement contentions,” and that its contentions actually “identify publicly
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`available source code, functionality that is within the public view,” further complicate this analysis.
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`(Dkt. No. 81 at 4). In addition, the Court remains unsure, at this juncture, of the true presence and/or
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`relevance of documentary evidence from the third-party carriers that AGIS will seek discovery from.
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`Further, Huawei argues that Mr. Armstrong’s documentary evidence is “effectively irrelevant
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`to this case and the transfer analysis.” (Dkt. No. 74 at 3). This is because, Huawei argues, “AGIS’s
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`infringement contentions confirm that it ‘does not intend to rely on the assertion that its own
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`apparatuses . . . practice the claimed inventions,’ meaning Mr. Armstrong’s development efforts
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`related to LifeRing and ASSIST are effectively immaterial to this case.” (Id. at 3–4). However, the
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`infringement contentions do not tell the whole story. The relevance of Mr. Armstrong’s documentary
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`evidence lies in Huawei’s Answer, wherein it asserts a marking defense, arguing that damages are
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`barred as a result of a failure to mark by AGIS. (Dkt. No. 29 at 16 (“Plaintiff’s claims for damages are
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`barred, in whole or in part, under 35 U.S.C. §§ 286, 287 and/or 288.”)). Pursuant to § 287, a plaintiff
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`may defeat a marking defense by showing either: (1) the patented articles were substantially
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`consistently and continuously marked with the patent number during the entire period the patented
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`articles were sold, or (2) the alleged patented articles are not patented articles within the meaning of
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`§ 287(a) because they do not meet all the elements of any of the claims of the asserted patent. See Am.
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`Med. Sys. v. Med. Eng’g Corp., 6 F.3d 1523, 1537 (Fed. Cir. 1993) (“[O]nce marking has begun, it
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`must be substantially consistent and continuous in order for the party to avail itself of the constructive
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`notice provisions of the statute.”); see also Toro Co. v. McCulloch Corp., 898 F. Supp. 679, 684 (D.
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`Minn. 1995) (“A device is a “patented article” under a patent when it contains all of the elements
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`disclosed in any single claim of the patent.”). Thus, by raising § 287 as an issue to be decided in this
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`host of products and services including “Android, G Suite, Google Play, people operations, finance, engineering, and
`marketing.” (Dkt. No. 56 at 9). While the Court does not consider this issue in its analysis of this factor, it presents
`this as a possibility of clever declaration preparation which, in another case and upon the proper showing, may warrant
`venue-related discovery to test the veracity of the declarations upon which parties ask the Court to rely.
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`case, Huawei has made the issue of whether AGIS’s products––or the products of its affiliated
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`companies––are covered by the patents in suit a central issue and of primary concern to the issue of
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`limiting damages in this suit.5
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`Accordingly, the Court finds that primary sources of proof may be found both in this District
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`and the proposed transferee district, along with many sources of proof that are in other districts and
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`abroad. On balance, the Court notes the generally heavier evidentiary burden with which defendants
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`are generally faced with in patent infringement lawsuits. However, taking into account the location of
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`primary sources of proof within this District upon which the plaintiff will rely, the Court finds that this
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`factor weighs in favor of transfer, but not to a great extent, especially given the multitude of other
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`primary sources of proof outside of both this District and the proposed transferee district that the Parties
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`expect to draw documentary evidence from.
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`ii. Availability of Compulsory Process
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`The second private interest factor instructs the Court to consider the availability of
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`compulsory process to secure the attendance of witnesses, particularly non-party witnesses whose
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`attendance may need to be secured by a court order. See In re Volkswagen II, 545 F.3d at 316.
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`Third-party subpoena is governed by Fed. R. Civ. P. 45, providing the presiding court with
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`nationwide subpoena power to order third-party witnesses to attend deposition, so long as the
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`deposition is to take place within 100 miles of the witness’s residence or regular place of business.
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`Fed. R. Civ. P. 45(a)(2), 45(c)(1)(A); see Virtualagility, Inc. v. Salesforce.com, Inc., 2:13-cv-
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`00011-JRG, 2014 U.S. Dist. LEXIS 12015, 2014 WL 459719, at *4 (E.D. Tex. Jan. 31, 2014).
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`5 Huawei urges the Court to consider AGIS’s corporate relatives to be one and the same as AGIS. (Dkt. No. 74 at 4
`n.7) (“AGIS should not be able to rely upon AGIS, Inc.’s products to oppose transfer, while using its corporate form
`to shield itself from the requirements of PLR 3-1(f), particularly where the two entities are admittedly related and
`share many of the same employees.).
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`The Court now turns to those witnesses which it properly declined to address, supra, under
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`the first factor. Huawei submits that the following non-party witnesses are subject to subpoena
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`power in the Northern District of California and not subject to the same in this District: witnesses
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`associated with the “Find My Phone” software (Family Safety Production/Life360 Inc.,
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`headquartered in San Francisco, California); the prosecuting attorney for three of the Patents-in-
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`Suit (residing in Santa Clara, California); and potential prior art witnesses (located throughout
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`California). (Dkt. No. 36 at 12). Huawei incorrectly considers the non-party Google witnesses under
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`the third factor. Absent any indication that the third-party Google witnesses are willing, the Court may
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`not consider the cost of their attendance as it must presume utilization of the Court’s subpoena power
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`will be required. See Peteski Prods., Inc. v. Rothman, No. 5:17-CV-00122-JRG, 2017 WL 8943154,
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`at *3 (E.D. Tex. Nov. 13, 2017) (refusing to consider a consultant, non-party witness a willing
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`witness absent indication he was willing or otherwise a party witnesses, such as an employee).
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`Accordingly, the identified pool of third-party Google witnesses is appropriately considered under
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`this factor, and the Court does consider the presence of this identified pool of third-party witnesses
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`to be, “at some level, probative.” Oyster Optics, LLC v. Coriant Am. Inc., No. 2:16-CV-1302,
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`2017 WL 4225202, at *6 (E.D. Tex. Sept. 22, 2017) (holding that while defendant “did not point
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`to specific witnesses they would call (so that the Court may ascertain the applicability of
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`compulsory process over those witnesses),” defendant had, nonetheless “identified an established
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`pool of likely third party witnesses as to whom the Northern District clearly exercises compulsory
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`process.”); id. (noting that “greater specificity would certainly strengthen [defendant’s] position”
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`but that the showing was “relevant” and “at some level, . . . probative.”). These are the only third-
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`party witnesses that Huawei identifies with respect to this factor in its Motion. (Dkt. No. 36 at 11–
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`13).
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`11
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`Case 2:17-cv-00513-JRG Document 140 Filed 05/23/18 Page 12 of 18 PageID #: 5396
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`AGIS submits that “AGIS witness, software developer Eric Armstrong, is in Allen, Texas.”
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`(Dkt. No. 56 at 13). Mr. Armstrong is not a party witness, but is “a former AGIS Inc. employee
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`who is now a full-time consultant for AGIS and AGIS Inc.” (Id. at 5). The Court has already addressed
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`his relevance through Huawei’s attempt to limit damages via marking pursuant to § 287, discussed
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`supra. AGIS also submits that “[e]vidence relevant to damages will likely come from non-party
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`witnesses from AT&T, Sprint, and Verizon” and that “[i]t is more likely that the attendance of
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`witnesses working at AT&T in the Dallas area can be compelled if this action remains in the
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`Eastern District of Texas.” (Id. at 13).
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`First, with respect to AGIS’s arguments, the Court credits the presence of Mr. Armstrong
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`as counting against transfer. However, its argument regarding the compulsion of third-party
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`witnesses related to companies whose employers are located outside of this district is not availing.
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`And the relative convenience of these identified non-party and currently-unwilling witnesses is
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`not something which can be considered under the third factor. Accordingly, the Court will
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`consider Mr. Armstrong under this factor and no other submitted witnesses from AGIS.
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`While AGIS also argues that the presence of Life360 as a third-party is not relevant, this is
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`the type of speculative inquiry with which the Court cannot, again, truly engage at this early stage
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`of the proceeding. See supra n. 2. The Court will, accordingly, not discount the presence of
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`Life360 in its analysis. The Court is more suspicious, however, of the potential prior art witnesses
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`identified by Huawei; these witnesses are, in the Court’s experience, rarely called to trial.
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`Regardless, even if the Court were to wholly discount both of these sources of third-party
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`witnesses, the identified pool of third-party witnesses tends to tip the balance of this factor towards
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`transfer. Thus, on balance, the Court finds that this factor weighs in favor of transfer.
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`Case 2:17-cv-00513-JRG Document 140 Filed 05/23/18 Page 13 of 18 PageID #: 5397
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`iii. Cost of Attendance for Willing Witnesses
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`Huawei argues that “Huawei Device and Huawei Dongguan have no witnesses in E.D.
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`Tex., and travel for their witnesses from China to N.D. Cal. is more convenient,” and that “most
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`of Huawei USA’s relevant witnesses are located in California or in locations closer to N.D. Cal.
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`than to E.D. Tex.” (Dkt. No. 36 at 13). While Huawei identifies third-party Google witnesses for
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`consideration under this factor, those witnesses, as discussed above, are not willing third-party
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`witnesses and are thus properly considered only under the second factor since witnesses cannot be
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`double counted.
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`Huawei argues that “[c]ontrolling precedent directs courts to consider actual travel
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`logistics, including airplane flight times––and not distance-as-the-crow-flies.” (Dkt. No. 74 at 4
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`(citing Volkswagen II, 371 F.3d 203, n.3)). However, in Volkswagen II, the Fifth Circuit first
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`considered in the body of its opinion the distance-as-the-crow-flies between San Antonio and
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`Marshall, noting, via footnote, that the absence of any direct flights between Shreveport and San
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`Antonio did not somehow mitigate the distance which it had considered in the first instance. 371
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`F.3d at 203 n.3. This notation does not disturb the initial consideration of distance-as-the-crow-
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`flies, but rather supplements it, by permitting courts to take note of substantial travel considerations
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`which may impact the analysis beyond simple distance comparisons. It does not require, however,
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`a court to become a travel agent for the parties’ witness lists, comparing travel schedules to
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`determine absolute efficiencies and ease of travel prior to making its determination under this
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`factor to the relative cost of attendance of willing witnesses.
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`Regardless, the distance between Shenzen, China, and Marshall, Texas, is, obviously
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`greater than the distance between Shenzen, China, and San Francisco, California. (See Dkt. No.
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`56-6 (respectively, approximately 8200 mi. and 6900 mi.)). Similarly, the Huawei employees
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`Case 2:17-cv-00513-JRG Document 140 Filed 05/23/18 Page 14 of 18 PageID #: 5398
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`located in California will find transfer of this case to the Northern District of California to be much
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`more convenient for them.
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`The same is true for AGIS’s party witnesses, but with respect to the Eastern District of
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`Texas. AGIS argues that its “key party witnesses will include Mr. Beyer (Jupiter, Florida), Mr.
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`Sietsema (Austin, Texas), and Sandel Blackwell (Lenexa, Kansas),” and that the Eastern District
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`of Texas “is a more convenient venue for each of them.” (Dkt. No. 56 at 11). While AGIS also
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`argues that “[u]nlike Huawei, AGIS is a small business, and AGIS’s party witnesses’ absence will
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`create severe hardship for AGIS’s ability to do business, while Huawei would likely experience
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`no impact if its witnesses were required to travel to Texas to testify,” the Court, in recognizing the
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`minimal probative value of this argument,6 gives this little weight as these key witnesses will be
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`required to travel for trial no matter where the trial is held.
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`Regardless, both sides have identified party witnesses for whom the competing forums are
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`respectively more convenient. Of course, as other courts in this Circuit have noted, the
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`convenience of party witnesses is given less weight. ADS Sec. L.P. v. Advanced Detection Sec.
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`Servs., Inc., No. A-09-CA-773-LY, 2010 WL 1170976, at *4 (W.D. Tex. Mar. 23, 2010), report
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`and recommendation adopted in A-09-CA-773-LY (Dkt. No. 20) (W.D. Tex. Apr. 14, 2010) (“[I]t
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`is unclear whether Defendant is contending that the transfer would be more convenient for non-
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`party witnesses or merely for their own employee witnesses. If the Defendant is referring to
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`employee witnesses, then their convenience would be entitled to litt