Case 2:17-cv-00513-JRG Document 202 Filed 09/28/18 Page 1 of 22 PageID #: 11460
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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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`v.
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`HTC CORPORATION, LG ELECTRONICS
`INC., ZTE CORPORATION, ZTE (USA),
`INC., AND ZTE (TX), INC.
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`Plaintiff,
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`Defendants.
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`CIVIL ACTION NO. 2:17-CV-00514-JRG
`(LEAD CASE)
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`CIVIL ACTION NO. 2:17-CV-00515-JRG
`CIVIL ACTION NO. 2:17-CV-00517-JRG
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`MEMORANDUM OPINION AND ORDER
`Before the Court is LG Electronics Inc.’s Motion to Dismiss for Lack of Personal
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`Jurisdiction or, in the Alternative, to Transfer Venue to the Northern District of California. (2:17-
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`cv-513, Dkt. No. 46.) Having considered the Motion, the Court is of the opinion that it should be
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`and hereby is DENIED.
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`I.
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`BACKGROUND
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`Plaintiff AGIS Software Development LLC (“AGIS”) is a Texas limited liability company
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`with its principal place of business in Marshall, Texas. (2:17-cv-513, Dkt. No. 167 ¶¶1, 3.)1
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`Defendant LG Electronics Inc. (“LG Korea”) is a foreign company organized and existing under
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`the laws of South Korea with its principal place of business in Seoul, Korea. (Dkt. No. 180 at Ex.
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`25 ¶ 2.)
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`1 Unless otherwise indicated, all docket citations herein refer to documents filed in AGIS Software Development LLC
`v. Huawei Device USA, Inc., et al., No. 2:17-cv-0513 (E.D. Tex.).
`1
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`Case 2:17-cv-00513-JRG Document 202 Filed 09/28/18 Page 2 of 22 PageID #: 11461
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`On June 21, 2017, AGIS filed suit against LG Korea, alleging infringement of U.S. Patent
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`Nos. 9,467,838; 9,445,251; 9,408,055; and 8,213,970 (the “Asserted Patents”). (2:17-cv-515, Dkt.
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`No. 1.) On October 25, 2017, the Court consolidated the instant action with a related action filed
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`by AGIS against Huawei Device USA Inc., Huawei Device Co., Ltd., and Huawei Device
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`(Dongguan) Co., Ltd. (“Huawei case”) (Dkt. No. 20.) On November 27, 2017, LG Korea filed a
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`Motion to Dismiss for Lack of Personal Jurisdiction or, in the alternative, to Transfer Venue to the
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`Northern District of California. (the “LG Korea Motion”) (Dkt. No. 46.) The Parties completed
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`briefing on the LG Korea Motion on January 12, 2018. (Dkt. No. 82.) The Court then held an
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`evidentiary hearing on August 8, 2018. (Dkt. No. 176.) At the hearing, the Court accepted the
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`declaration of Todd Parish, a private investigator hired by AGIS, the deposition transcripts and
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`exhibits from the depositions of Juseong Ryu (LG Korea) and Hongsun Yoon (non-party witness
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`for LG Mobile), and all record evidence submitted by the parties to complete the evidentiary
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`record. (Id. at 49:7–10.) The Parties filed proposed Findings of Fact and Conclusions of Law
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`within seven days of the hearing. (Dkt. Nos. 182, 185.) On August 22, 2018, the Court
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`unconsolidated the instant action from the Huawei case and reconsolidated this case, AGIS
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`Software Development LLC v. LG Electronics, Inc., 2:17-cv-515 and AGIS Software Development
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`LLC v. ZTE Corporation, 2:17-cv-517 under a new lead case, AGIS Software Development LLC v.
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`HTC Corporation, 2:17-cv-514. (2:17-cv-515, Dkt. No. 25.)
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`II.
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`LEGAL STANDARD
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`Personal Jurisdiction
`A.
`Personal jurisdiction is governed by Federal Circuit law in patent cases. Autogenomics, Inc. v.
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`Oxford Gene Tech. Ltd., 566 F.3d 1012, 1016 (Fed. Cir. 2009); Beverly Hills Fan Co. v. Royal
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`Sovereign Corp., 21 F.3d 1558, 1565 (Fed. Cir. 1994). The plaintiff bears the burden of
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`establishing that the defendant is subject to personal jurisdiction. Celgard, LLC v. SK Innovation
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`2
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`Co., Ltd., 792 F.3d 1373, 1378 (Fed. Cir. 2015). If no jurisdictional discovery is conducted, the
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`plaintiff need only make a prima facie showing. Id. However, when, as here, there has been
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`jurisdictional discovery and an evidentiary hearing, the preponderance of the evidence standard
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`applies. Id. (citing Pieczenik v. Dyax Corp., 265 F.3d 1329, 1334 (Fed. Cir. 2001)).
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`Whether a court may exercise personal jurisdiction over an out-of-state defendant is a two-step
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`analysis: (1) does the state’s long-arm statute permit service of process, and if so, (2) does
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`exercising jurisdiction over the defendant violate due process? Autobytel, Inc. v. Insweb Corp.,
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`No. 2:07-cv-00524, 2009 WL 901482, at *1 (E.D. Tex. Mar. 31, 2009) (citing Genetic Implant
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`Sys., Inc. v. Core-Vent Corp., 123 F.3d 1455, 1458 (Fed. Cir. 1997)). Since Texas’s long-arm
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`statute is coextensive with the due process inquiry, the two inquiries collapse into a single analysis
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`of whether asserting jurisdiction comports with due process. Johnston v. Multidata Sys. Int’l
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`Corp., 523 F.3d 602, 609 (5th Cir. 2008); ATEN Int’l Co. v. Emine Tech. Co., 261 F.R.D. 112, 118
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`(E.D. Tex. 2009). Due process is satisfied if (1) the defendant has established minimum contacts
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`with the forum state; and (2) the exercise of jurisdiction would not offend “traditional notions of
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`fair play and substantial justice.” Autobytel, 2009 WL 901482, at *1 (quoting Int’l Shoe Co. v.
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`State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945)). Once
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`the plaintiff demonstrates that the defendant has sufficient contacts with the forum, the burden
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`shifts to the defendant to show that litigating in the forum would be unfair or unreasonable.
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`Celgard, 792 F.3d at 1377.
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`Minimum contacts can be found on the basis of general jurisdiction, specific jurisdiction,
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`or the stream of commerce theory. Goodyear Dunlop Tires Ops., S.A. v. Brown, 131 S. Ct. 2846,
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`2851 (2011); Beverly Hills Fan, 21 F.3d at 1566. General jurisdiction exists when the defendant’s
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`contacts with the forum are “so continuous and systematic as to render [it] essentially at home in
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`the forum State.” Daimler AG v. Bauman, 571 U.S. 117, 128 (2014). Specific jurisdiction is
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`satisfied when the defendant has “purposefully directed [its] activities at the residents of the forum,
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`and the litigation results from alleged inquires that arise from or relate to those activities.” Icon
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`Health & Fitness, Inc. v. Horizon Fitness, Inc., No. 5:08-cv-00026, 2009 WL 1025467, at *3 (E.D.
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`Tex. Mar. 26, 2009) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)).
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`Under the stream of commerce theory, minimum contacts are found if the defendant “deliver[s]
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`its products into the stream of commerce with the expectation that they will be purchased by
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`customers in the forum State.” Beverly Hills Fan, 21 F.3d at 1566 (quoting World-Wide
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`Volkswagen Corp. v. Woodson, 444 U.S. 286, 297–98 (1980)).2 The Supreme Court is split over
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`whether merely placing a product into the stream of commerce, defined as “the regular and
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`anticipated flow of products from manufacture to distribution to retail sale” (the “Brennan test”),
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`or whether the existence of additional conduct by the defendant purposefully directed toward the
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`forum state (the “O’Connor test”) satisfies this test. Asahi Metal Indus. Co. v. Super. Ct. of Cal.,
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`Solano Cty., 480 U.S. 102, 112, 117 (1987). The Federal Circuit has declined to resolve this split
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`and determines whether the specific facts at issue support jurisdiction under either theory. Beverly
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`Hills Fan, 21 F.3d at 1566.
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`Despite these divergent views, it is undisputed that “unilateral actions of a third party having
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`no pre-existing relationship with the tortfeasor” will not confer jurisdiction over a foreign
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`defendant. Beverly Hills Fan, 21 F.3d at 1565 (citing World-Wide Volkswagen Corp., 444 U.S. at
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`297). Put differently, jurisdiction “arises from the efforts of the [defendant] to serve, directly or
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`2 Placing a product into the stream of commerce can form the basis for specific jurisdiction if the plaintiff alleges
`patent infringement based on the defendant’s shipment of allegedly infringing products into the forum state. Beverly
`Hills Fan, 21 F.3d at 1565 (“The allegations are that defendants purposefully shipped the accused fan into Virginia
`through an established distribution channel. The cause of action for patent infringement is alleged to arise out of these
`activities. No more is usually required to establish specific jurisdiction.”).
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`indirectly, the market for its product.” Id. at 1566 (quoting World-Wide Volkswagen, 444 U.S. at
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`297).
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`If minimum contacts have been found, the defendant bears the burden of showing that it would
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`be unfair or unreasonable to maintain suit in the forum. Asahi, 480 U.S. at 121–22 (Stevens, J.,
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`concurring in part and concurring in the judgment) (quoting Int’l Shoe, 326 U.S. at 320); Beverly
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`Hills Fan, 21 F.3d at 1568. This analysis requires balancing various factors: “(1) the burden on
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`the defendant; (2) the forum State’s interest in adjudicating the dispute; (3) the plaintiff’s interest
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`in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining
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`the most efficient resolution of controversies; and (5) the shared interest of the several states in
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`furthering fundamental substantive social policies.” Burger King Corp. v. Rudzewicz, 471 U.S.
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`462, 477 (1985) (internal citations and quotation marks omitted). Jurisdiction is generally denied
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`in the “rare situation in which the plaintiff’s interest and the state’s interest in adjudicating the
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`dispute in the forum are so attenuated that they are clearly outweighed by the burden of subjecting
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`the defendant to litigation within the forum.” Beverly Hills Fan, 21 F.3d at 1568 (internal citations
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`omitted).
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`Transfer Under 28 U.S.C. § 1404(a)
`B.
`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 is “whether the judicial district
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`to which transfer is sought would have been a district in which the claim could have been filed.”
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`In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (“Volkswagen I”). “Any civil action for
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`patent infringement may be brought in the judicial district where the defendant resides, or where
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`the defendant has committed acts of infringement and has a regular and established place of
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`business.” 28 U.S.C. § 1404(b); TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct.
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`1514, 1519 (2017) (Ҥ1404(b) is the sole and exclusive provision controlling venue in patent
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`infringement actions.”) (internal citations and quotation marks omitted). For purposes of §
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`1404(b), a domestic corporation resides only in its state of incorporation. TC Heartland, 137 S.
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`Ct. at 1521.
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`LG Korea is not a domestic corporation. However, as noted above, once this threshold
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`inquiry is met, the court analyzes public and private factors relating to the convenience of parties
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`and witnesses as well as the interests of particular venues in hearing the case. Volkswagen I, 371
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`F.3d at 203; In re Nintendo Co., Ltd., 589 F.3d 1194, 1198 (Fed. Cir. 2009). The private factors
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`are “(1) the relative ease of access to sources of proof; (2) the availability of compulsory process
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`to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all
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`other practical problems that make trial of a case easy, expeditious and inexpensive.” Volkswagen
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`I, 371 F.3d at 203 (internal citation omitted). The public factors are “(1) the administrative
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`difficulties flowing from court congestion; (2) the local interest in having localized interests
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`decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4)
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`the avoidance of unnecessary problems of conflict of laws of the application of foreign law.” Id.
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`These factors are decided based on “the situation which existed when suit was instituted.” Hoffman
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`v. Blaski, 363 U.S. 335, 343 (1960). Though the private and public factors apply to most transfer
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`cases, “they are not necessarily exhaustive or exclusive,” and no single factor is dispositive. In re
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`Volkswagen of Am., Inc., 545 F.3d 304, 314-15 (5th Cir. 2008) (“Volkswagen II”).
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`To prevail on a motion to transfer under § 1404(a), the movant must show that transfer is
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`“clearly more convenient” than the venue chosen by the plaintiff. Id. at 315; accord In re Apple
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`Inc., 456 F. App’x 907, 909 (Fed. Cir. 2012) (holding that a movant must “meet its burden of
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`demonstrating [] that the transferee venue is ‘clearly more convenient.’”) (internal citation
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`omitted). Absent such a showing, the plaintiff’s choice of venue is to be respected. Volkswagen
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`II, 545 F.3d at 315. When deciding a motion to transfer 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 Grp., 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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`III. ANALYSIS
`Personal Jurisdiction Over LG Korea
`A.
`The Court first addresses the issue of personal jurisdiction raised by LG Korea. LG Korea “is
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`a South Korean corporation with its principal place of business in Seoul, Korea.” (Dkt. No. 185 at
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`3 ¶ 14; Dkt. No. 46 at 5.) LG Korea asserts that it has no connection with Texas to justify personal
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`jurisdiction. (Dkt. No. 185 at 12–13 ¶17; Dkt. No. 46 at 11–15.) It is not incorporated in Texas nor
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`is its principal place of business located in the state. (Dkt. No. 185 at 10 ¶ 11; Dkt. No. 46 at 5,
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`11–12.) It also has no offices, employees, records, or bank accounts in Texas. (Dkt. No. 185 at
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`12–13 ¶ 17; Dkt. No. 46 at 13.) LG Korea argues that it “designs, engineers, and manufactures the
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`Accused Devices outside the United States, mostly in South Korea,” (Dkt. No. 185 at 3 ¶ 15; Dkt.
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`No. 46 at 13-15), and that its wholly-owned subsidiaries, LG Electronics Mobilecomm U.S.A.,
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`Inc. (“LGEMU”) and LG Electronics MobileResearch U.S.A., LLC (“LGEMR”), “are solely
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`responsible for importing, testing, performing quality management, marketing, offering for sale,
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`and selling the Accused Devices in the United States.” (Dkt. No. 185 at 4 ¶ 23; Dkt. No. 46 at 13-
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`15.) “LGEMU acquires the Accused Devices from [LG Korea] in South Korea and imports them
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`into the United States for sale to national phone carriers, retailers, and distributors, who in turn sell
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`those devices to end users throughout the nation.” (Dkt. No. 185 at 5 ¶ 30; Dkt. No. 46 at 13-15.)
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`LG Korea argues that it has no control or authority over its U.S. subsidiaries or the third-party
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`resellers, and therefore any alleged sale or offer for sale of the accused smartphones by those
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`entities cannot be imputed to it. (Dkt. No. 185 at 12 ¶17–14 ¶ 21; Dkt. No. 46 at 13–15.) As a
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`result, LG Korea argues that it does not have the requisite minimum contacts with this District
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`necessary for personal jurisdiction.
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`AGIS argues that LG Korea has sufficient contacts under the stream of commerce theory. (Dkt.
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`No. 182 at 18 ¶ CL23, at 19 ¶ CL24.) To support its argument, AGIS points to several facts: (1)
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`from 2012 to 2017, LG Korea shipped approximately 86 million LG branded phones, including
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`the accused devices, to LG Mobile, who in turn sold them to carriers and retailers in Texas, (id. at
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`19 ¶ CL25); (2) “[f]rom June 18, 2018 to July 26, 2018, Mr. Parish, [AGIS’s private investigator],
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`purchased thirteen (13) Accused Devices at various U.S. mobile phone carrier and retail locations
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`within the Eastern District of Texas,” (id. at 4 ¶ FF21); (3) on September 26, 2016, LG Korea
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`shipped its phones to AT&T in North Fort Worth, Texas, (id. at 9 ¶ FF50); (4) LG Korea admitted
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`that it was aware that its phones were sold nationwide, including in Texas, (id. at 7 ¶ FF 37); (5)
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`LG Korea creates and distributes service manuals and user guides for the U.S. market, (id. at 5 ¶¶
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`FF27–29); (6) LG Korea marks its phones for sale in the U.S. which identify it as the source of the
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`products, (id. at 6 ¶ FF30); and (6) LG Korea specially marks its phones with each U.S. carrier’s
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`trademarked symbols. (Id. at 7 ¶ FF36.) AGIS avers that these facts demonstrate that LG Korea
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`sold its product into a nationwide distribution chain with the expectation that they would be sold
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`in Texas and that LG Korea knew its products were sold in Texas, thereby satisfying both the
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`Brennan and O’Connor applications of the stream of commerce test.
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`In response, LG Korea argues that it has no role in how its subsidiaries or carriers sell its
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`phones, and AGIS has failed to provide any evidence that LG Korea itself sells the accused
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`smartphones in the United States, “or directs or otherwise oversees LGEMU’s distribution.” (Dkt.
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`No. 185 at 16 ¶ 27.) Whether or how phones end up in Texas is entirely the result of unilateral
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`acts of third-parties. (Dkt. No. 46 at 14–15; Dkt. No. 77 at 2–5.)
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`The Court finds LG Korea’s arguments unavailing. LG Korea primarily relies on the fact
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`that it has no control over LGEMU or the third-party resellers, and therefore lacks sufficient
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`contacts under the stream of commerce theory. However, the relevant inquiry is not whether LG
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`Korea controlled the intermediaries in the distribution chain, but instead whether it “deliver[ed] its
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`products into the stream of commerce with the expectation that they will be purchased by
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`consumers in the forum State.” Beverly Hills Fan, 21 F.3d at 1566 (quoting World-Wide
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`Volkswagen, 444 U.S. at 297–98). LG Korea admitted that it sells its smartphones to LGEMU and
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`that it knew LGEMU resells the smartphones to third-party carriers who distribute the phones
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`nationwide, including in Texas. (Dkt. No. 185 at 4 ¶ 23); (Dkt. No. 46 at 5–6.) It also admitted
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`that a “small quantity of phones are imported by LGEMU through DFW airport in Texas based on
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`special request from a LGEMU customer.” (Dkt. No. 185 at 7 ¶ 43.) These facts are sufficient to
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`show that LG Korea “knew, or reasonably could have foreseen, that a termination point of the
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`channel was [Texas].” Beverly Hills Fan, 21 F.3d at 1564.
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`The Eastern District of Michigan recently found personal jurisdiction on similar facts. In
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`Ford Global Technologies LLC v. New World International, Inc., the plaintiff argued that
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`jurisdiction was proper over Defendants New World International, Inc. and United Commerce
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`Centers, Inc. (collectively “United”) because United sold products in Michigan through their
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`national distributor, Auto Lighthouse, LLC (“Auto Lighthouse”). No. 2:15-cv-10394, 2016 WL
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`3349041 at *1 (E.D. Mich. June 16, 2016). Auto Lighthouse sold products via several websites
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`and did not have any physical stores or inventory. When an online order was placed, it would
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`purchase the product from New World International, Inc., and then ship it to the contiguous 48
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`states, including Michigan. Id. at *1. The court found that United had sufficient contacts with
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`Michigan under the stream of commerce theory because: (1) United formed Auto Lighthouse to
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`increase its online presence and sales in the United States; (2) Auto Lighthouse filled its online
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`orders by purchasing the products from United, and sold products throughout the contiguous
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`United States, including Michigan; and (3) United monitored Auto Lighthouse’s performance,
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`among other things. Id. at *11–14. Based on these facts, the court concluded that “United uses
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`Auto Lighthouse, and in particular, Auto Lighthouse’s websites, to sell its inventory nationally
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`and into Michigan, and that United is not only aware of the national reach of Auto Lighthouse’s
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`business, it aids Auto Lighthouse in maintaining and extending that reach.” Id. at *13.
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`Likewise, LG Korea sells its products via an established distribution channel through
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`LGEMU with knowledge, or at least reasonable foreseeability, that its products will end up in
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`Texas. AFTG-TG, LLC v. Nuvoton Tech. Corp., 689 F.3d 1358, 1365 (Fed. Cir. 2012) (holding
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`that presence of “defendant’s continuous, established distribution channels” is a “significant factor
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`supporting the exercise of personal jurisdiction [under] Beverly Hills Fan”); see also MHL Tek,
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`LLC v. Nissan Motor Co., No. 2:07-cv-289, 2008 WL 910012 (E.D. Tex. Apr. 2, 2008) (finding
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`personal jurisdiction proper over defendant that sold vehicles containing the accused products to a
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`related foreign entity, which sold the vehicles to a related U.S. entity for distribution throughout
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`the U.S., including Texas); Serius Innovative Accessories, Inc. v. Cabela’s, Inc., No. 09-cv-102,
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`2009 WL 9141752, at *3 (S.D. Cal. Nov. 2, 2009) (finding jurisdiction even though Defendant
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`denied knowledge of sales in California because Defendant’s “subjective expectations about its
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`products sales are only relevant to the extent they are reasonable” and since Defendant’s distributor
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`ships nationwide “the only reasonable expectation is that their products would be marketed and
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`sold in California”). The presence of this intentionally established distribution channel, therefore,
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`provides sufficient grounds to assert personal jurisdiction over LG Korea.
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` Notwithstanding the above, LG Korea argues that a finding of personal jurisdiction would
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`be unfair and unreasonable. However, jurisdiction is not found in the “rare situation [] in which
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`the plaintiff’s interest and the state’s interest in adjudicating the dispute in the forum are so
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`attenuated that they are clearly outweighed by the burden of subjecting the defendant to litigation
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`[therein].” Beverly Hills Fan, 21 F.3d at 1568; see also Burger King, 471 U.S. at 477 (holding
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`that defendant must present “compelling case” to defeat jurisdiction if he has purposefully directed
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`his activities at the forum). LG Korea has failed to show that this is one of those rare cases. AGIS
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`is a Texas company with its principal place of business in this District and as such, it has a strong
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`interest in having its injuries remedied in its home state. Texas also has a “manifest interest in
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`providing its residents with a convenient forum for redressing injuries inflicted by out-of-state
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`actors.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 (1985). This is especially true when,
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`as here, the sale of the accused smartphones is not an isolated occurrence but arises from LG
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`Korea’s concerted efforts to serve the U.S. market, including Texas. While there is no dispute that
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`a burden is placed on LG Korea, a foreign corporation, by being hailed into court in this District,
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`that burden is one that LG Korea faces in any United States district court and is not one that is
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`easily outweighed by Plaintiff’s (and this state’s respective) interests in resolving the dispute here.
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`Accordingly, based on the totality of the circumstances, the Court finds that the exercise of
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`personal jurisdiction over LG Korea is proper.
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`Transfer Under 28 U.S.C. § 1404(a)
`B.
`The Court now addresses the issue of transfer under § 1404(a). LG Korea does not dispute
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`that this action could have been properly filed in the Northern District of California, (Dkt. No. 46
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`at 18), and AGIS is silent on the issue in its briefs. Thus, the threshold requirement for transfer
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`under § 1404(a) has been satisfied. The Court now proceeds to analyze the private and public
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`factors considered in determining whether transfer is appropriate.
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`1.
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`Private Interest Factors
`Relative Ease of Access to Sources of Proof
`a)
`When considering the relative ease of access to sources of proof, a court looks to where
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`documentary evidence, such as documents and physical evidence, are stored. Volkswagen II, 545
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`F.3d at 316. For this factor to weigh in favor of transfer, LG Korea must show that transfer to the
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`Northern District of California will result in more convenient access to sources of proof. See Diem
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`LLC v. BigCommerce, Inc., No. 6:17-cv-186, 2017 WL 6279907, at *2 (E.D. Tex. Dec. 28, 2017).
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`LG Korea argues that this factor favors transfer because the majority of relevant documents
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`are located in the Northern District of California. (Dkt. No. 46 at 5–6.) LG Korea submits that it
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`is a Korean company, and designs and manufactures the accused smartphones outside of the United
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`States. (Id. at 5.) All of its technical documents are stored in its offices in South Korea, and it is
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`not aware of any relevant documents in this District. (Id. at 5, 20.) LG Korea argues that most of
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`the relevant documents reside with non-parties in California. (Id. at 5–6.) Its California
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`subsidiaries and non-parties, LGEMU and LGEMR, are “solely responsible for importing, testing,
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`performing quality management, marketing, offering for sale, and selling the Accused Devices in
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`the United States,” (id. at 5), and both “maintain key operations with respect to the Accused
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`Devices in California, including Santa Clara.” (Id. at 6.) “Android-related certification documents
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`and records are physically present in or electronically accessible at [LGEMU’s] Northern
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`California office,” (id. at 6), and “documents and records concerning testing, quality management,
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`and other similar [documents] related to the Accused Devices are maintained in the San Diego
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`office.” (Id. at 7.) LG Korea explains that “many of [these] documents exist on local computers
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`and servers that are not accessible outside of LGEMU’s offices” in California. (Id. at 20.) In
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`addition, LG Korea argues that non-party Google maintains key documents and confidential source
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`code that are central to AGIS’s infringement claims in the Northern District of California. (Id. 8,
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`20.) For example, nearly all documents related to Google Maps for Mobile App, one of the accused
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`applications, are either physically present in or electronically accessible in Mountain View,
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`California. (Dkt. No. 36 at Ex. 4 ¶ 6.)
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`In response, AGIS argues that it maintains its books and records at its office in this District
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`as well as documents “in the offices of its related companies located in Juniper, Florida; Lenexa,
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`Kansas; [and] Austin, Texas.” (Dkt. No. 68 at 25.) Its consultant, Eric Armstrong, also has relevant
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`documents in this District, “including e-mails regarding the development of software and
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`marketing which are stored on his computer.” (Id. at 5.) “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-
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`Suit, consumer surveys and marketing information regarding demand for particular applications
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`and features from third-party cellular carriers, including AT&T, Sprint, and Verizon,” whose
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`headquarters are in Dallas, Texas (AT&T); Overland, Kansas (Sprint); and New York (Verizon),
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`each of which AGIS states is “substantially closer and more convenient to this District than to the
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`Northern District of California.” (Id.) With respect to Google’s source code, AGIS asserts that its
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`infringement contentions rely on Google’s open source code which is publicly available and thus
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`sees no reason why the parties cannot access it in this District. (Id. at 22.) It also argues that even
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`if Google has relevant documentation, LG Korea fails to explain why the documents cannot be
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`produced electronically in this District. (Id.)3
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`3 On September 4, 2018, LG Korea moved for leave to supplement the record in support of its motion to transfer venue
`to the Northern District of California. (2:17-cv-514, Dkt. No. 66.) The Court granted LG Korea’s motion for leave.
`(Dkt. No. 69). In its motion, LG Korea provided evidence that AGIS issued a subpoena on Google in both of the
`consolidated cases, Agis Software Development, LLC v. Huawei Device USA Inc. et al., No. 2:17-cv-513 and Agis
`Software Development, LLC v. HTC Corp. et al, No. 2:17-cv-514. The subpoena sought the production of Google’s
`confidential source code for several of the accused applications in the Northern District of California. LG Korea
`argued that these subpoena notices rebut AGIS’s claims that its infringement claims rest solely on Google’s publicly
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`LG Korea points to relevant documents that are stored with it in Korea, with its subsidiaries
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`and non-parties LGEMU and LGEMR in California and New Jersey, and with non-party Google
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`in California. As a foreign corporation with documents well outside the United States, the relative
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`ease of access to its documents will not substantially change across different districts and is thus
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`neutral. LG Korea submits that documents from Google and LGEMU/LGEMR are relevant to
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`AGIS’s infringement and damages claims, respectively, and are stored in or near the transferee
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`district.4 Accordingly, those sources of proof weigh in favor of transfer. AGIS, on the other hand,
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`points to sources of proof located in this District, Kansas, and Florida. These documents include
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`“AGIS’s books and records,” documents relevant to software and marketing from its consultant
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`Eric Armstrong, and “documents relevant to damages” from “third-party cellular carrier, including
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`AT&T, Spring, and Verizon.” (Dkt. No. 40 at 26-27.) Texas, Kansas, and Florida are substantially
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`closer to this District than to the Northern District of California, and thus those sources of proof
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`weigh against transfer.
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`On balance, while relevant documents reside in multiple locations, the Court finds that this
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`factor weighs slightly in favor of transfer given that a majority of the documents relevant to the
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`accused products are located closer to the transferee district and that defendants generally face a
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`heavier evidentiary burden in patent cases. Godo Kaisha IP Bridge I. v. Xilinx, Inc., No. 2:17-cv-
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`00100, 2017 WL 4076052, at *3 (E.D. Tex. Sept. 14, 2017); In re Genentech, Inc., 566 F.3d 1338,
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`available source code and that such source code is located in the Northern District of California. The Court granted
`LG Korea’s motion to supplement the record. (Dkt. No. 75.) The Court acknowledges that the subpoenas served on
`Google suggest that Google possesses relevant documents in the Northern District of California.
`4 AGIS argues that Google can electronically transfer its documents to this District and so that should counsel
`against transfer. While it is true that documents in digital format can be easily transferred electronically, the Fifth
`Circuit has nonetheless made clear that for purposes of this factor, the relevant inquiry is the ease of access to where
`information is stored. Implicit v. Trend Micro, No. 6:16-cv-00080, 2016 U.S. Dist. LEXIS 191571, at *5 (E.D. Tex.
`Sept. 1, 2016) (citing Volkswagen II, 545 F.3d at 316) (“Despite technological advances in transportation of
`electronic documents, physical accessibility to sources of proof continues to be a private interest factor to be
`considered.”). While this arguably appear