Case 2:17-cv-00513-JRG Document 81 Filed 01/12/18 Page 1 of 8 PageID #: 4988
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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., ET AL.,
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`Defendants.
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`Case No. 2:17-CV-0513-JRG
`(LEAD CASE)
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`JURY TRIAL DEMANDED
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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT, LLC’S SUR-REPLY IN
`OPPOSITION TO DEFENDANTS HUAWEI DEVICE USA INC., ET AL. MOTION
`(DKT. 36) TO TRANSFER VENUE TO THE NORTHERN DISTRICT OF CALIFORNIA
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`AGIS SOFTWARE DEVELOPMENT, LLC,
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`Plaintiff,
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`v.
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`LG ELECTRONICS INC.,
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`Defendant.
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`Case No. 2:17-CV-0515-JRG
`(CONSOLIDATED CASE)
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`JURY TRIAL DEMANDED
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`Case 2:17-cv-00513-JRG Document 81 Filed 01/12/18 Page 2 of 8 PageID #: 4989
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`I.
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`INTRODUCTION
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`This lawsuit is between Huawei and AGIS, two Texas entities, and accuses smartphones
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`and tablets manufactured and sold by Huawei. In its Reply, Huawei (1) resorts to an ad-
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`hominem attack on AGIS’s intentions and ignores both parties’ significant ties to this District;
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`(2) does not contend that relevant party evidence is inaccessible from its offices in this District;
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`(3) does not contend that any Google evidence, to the extent such evidence is necessary for this
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`dispute, is inaccessible from this District; and (4) improperly disregards the convenience of the
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`Eastern District of Texas for AGIS’s own witnesses. Because Huawei has not shown that
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`transfer to the Northern District of California is clearly more convenient or in the interest of
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`justice, Huawei’s motion should be denied.
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`II.
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`CONVENIENCE OF THE PARTIES AND WITNESSES AND COSTS OF
`ATTENDANCE FOR WILLING WITNESSES WEIGH AGAINST TRANSFER
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`First, this District is more convenient than the Northern District of California for all
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`AGIS and AGIS Inc. witnesses. Dkt. 56 at 4-5; 11-13. Huawei’s argument that the convenience
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`of AGIS’s expected witnesses is entitled to little weight because some of them live outside this
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`District (Dkt. 74 at 3-4) is in direct contravention to Fifth Circuit law. “When the distance
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`between an existing venue for trial of a matter and a proposed venue under § 1404(a) is more
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`than 100 miles, the factor of inconvenience to witnesses increases in direct relationship to the
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`additional distance to be traveled.” In re Volkswagen AG, 371 F.3d 201, 204–05 (5th Cir. 2004).
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`For example, the Northern District of California is significantly more inconvenient for both
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`Mr. Beyer and Mr. Blackwell who would be required to travel an additional 1620 miles and 1054
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`miles, respectively, if this action was transferred. See Dkt. 56-2 at ¶ 5. Huawei also ignores that
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`this District is convenient for Mr. Rice; not only is he beyond the subpoena power of the
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`Northern District of California, but he has also agreed to travel to this District if called to testify
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`Case 2:17-cv-00513-JRG Document 81 Filed 01/12/18 Page 3 of 8 PageID #: 4990
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`(Dkt 57-1 ¶ 20).1 This District is also more convenient for AGIS’s technical expert. Dkt. 56-2
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`¶ 8.
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`Huawei does not dispute that the Eastern District of Texas is more convenient than the
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`Northern District of California for Mr. Armstrong or Mr. Sietsema. Instead, Huawei claims that
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`Mr. Armstrong’s and Mr. Sietsema’s knowledge is “tethered to the irrelevant LifeRing and
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`Assist products” which are “irrelevant to this case” Reply at 4. However, the LifeRing products
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`are relevant to this case and AGIS identified these products in its Amended Complaint. Dkt. 20
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`at ¶ 14. AGIS also identified AGIS Inc.’s development documents, including source code, in its
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`P.R. 3-2 disclosures. Huawei cannot credibly contend that the products of licensee AGIS Inc.
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`are not relevant in this dispute. Instead, Huawei focuses on Patent Local Rule 3-1(f) which
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`requires a party to identify “its own apparatus. . .” P.R. 3-1(f). Huawei twists this rule in a
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`way that contravenes AGIS’s pleadings and contentions. AGIS Inc. is not a party to this case,
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`and AGIS was not required to identify any AGIS Inc. products in its P.R. 3-1(f) disclosure.
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`Second, Huawei does not dispute that the majority of its own witnesses are located in
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`China. Dkt. 36 at 4. The only witness identified by Huawei who is located in the Northern
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`District of California, Yao Wang, stated unequivocally: “No design or manufacture of Huawei
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`smartphone and tablet hardware occurs within the U.S., including the state of Texas.” Dkt. 36-3.
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`Accordingly, because Huawei’s witnesses will likely come from outside the Northern District of
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`California, transfer is not clearly more convenient. See MHL Tek, LLC v. Nissan Motor Co.,
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`2009 WL 440627, at *4 (E.D. Tex. Feb. 23, 2009)
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`Third, Huawei’s focus on Google is misplaced. Google is not a party to this case. Even
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`if AGIS were to seek source code evidence from Google, as set forth below, Huawei has not
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`1 Huawei’s reliance on Groupchatter, LLC v. Itron, Inc., 2016 WL 2758480, at *4 (E.D. Tex. May 12, 2016) is
`inapposite because, in that case, the court determined that the willingness of witnesses to travel to Texas was entitled
`to little weight because those witnesses were located in the transferee district.
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`2
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`Case 2:17-cv-00513-JRG Document 81 Filed 01/12/18 Page 4 of 8 PageID #: 4991
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`explained why testimony from Google witnesses in the Northern District of California would be
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`necessary. Moreover, Google does not sell the Accused Products or the software implicated in
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`the Accused Products. Rather, the Accused Products are sold in sales channels for use with
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`third-party carriers, who include information on their websites that describe and provide
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`technical support for the accused functionalities. Declaration of Vincent Rubino (“Rubino
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`Decl.”), Ex. 13 at 2. Likewise, the location of the third-party carriers in or closer to this District
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`weigh against transfer as set forth in AGIS’s response. Dkt. 56 at 10.
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`III. THE LOCATION OF THE DOCUMENTARY EVIDENCE DOES NOT JUSTIFY
`TRANSFER
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`Huawei admitted in a previous case in this District that “records and documents relating
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`to development, sales, and marketing of its smartphones are equally accessible in Huawei USA’s
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`Plano and California facilities.” Rubino Decl., Ex. 14 at ¶ 6. Accordingly, Huawei’s
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`documentary evidence is in this District and transfer is not warranted. Aloft Media, LLC v.
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`Adobe Sys., 2008 WL 819956, at *3 (E.D. Tex. Mar. 25, 2008); see also Odom v. Microsoft
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`Corp., 596 F. Supp. 2d 995, 1000 (E.D. Tex. 2009). Whether Huawei’s documents are also
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`available in California is irrelevant. Huawei’s argument that its “relevant documents, and those
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`of key third-party witness Google, are located in NDCA and California” (Dkt. 74 at 5) is
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`irrelevant because Huawei fails to specify what these documents are, or why they are important
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`to the case, and does not contend that these documents are inaccessible from this District.
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`Invitrogen Corp., v. General Electric Co., 2009 WL 331891, at *2 (E.D. Tex. Feb. 9, 2009).
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`Regarding AGIS’s documents, Huawei’s assertion that “any evidence was clearly moved
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`[to the Eastern District of Texas] in anticipation of litigation and is irrelevant to transfer,” (Dkt.
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`74 at 5) is incorrect. As AGIS explained in its response, an AGIS Inc. software developer,
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`Mr. Armstrong, lives and works in this District under the direct supervision of Mr. Blackwell.
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`3
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`Case 2:17-cv-00513-JRG Document 81 Filed 01/12/18 Page 5 of 8 PageID #: 4992
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`Dkt. 56 at 5. Mr. Armstrong is in possession of AGIS Inc.’s documents relating to the practice
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`and licensing of the Patents-in-Suit.2 Contrary to Huawei’s bald assertions, Mr. Armstrong has
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`had access to AGIS Inc.’s documents for many years and his decision to reside in this District
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`was unrelated to this lawsuit. Dkt. 56-1 ¶¶ 15-16.
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`Regarding Google’s documents, contrary to Huawei’s implications, AGIS has not relied
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`on any confidential Google code in its preliminary infringement contentions. Instead, AGIS’s
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`contentions identify publicly available source code, functionality that is within the public view.
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`Huawei’s argument that Google’s documents, including source code, are “accessible” from the
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`Northern District of California (Dkt. 36 at 6) is insufficient because Huawei has not set forth any
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`evidence indicating that Google's documents and code would not be accessible Google locations
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`in or closer to the Eastern District of Texas. Aloft Media, 2008 WL 819956, at *4. Accordingly,
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`Huawei’s reliance on Google does not necessitate transfer
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`Because AGIS’s proof will come from records maintained in offices in this District, as
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`well as from its consultant and technical expert located in this District, and because Huawei does
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`not contend that its own or any third party documents are inaccessible from this District, this
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`factor weighs against transfer.
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`IV.
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`JUDICIAL ECONOMY AND THIS DISTRICT’S LOCALIZED INTEREST IN
`THIS DISPUTE WEIGHS AGAINST TRANSFER
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`The related AGIS Texas Cases which involve the same Patents-in-Suit and underlying
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`technology, weighs against transfer because granting transfer would duplicate the proceedings.
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`RPost Holdings, Inc. v. StrongMail Sys., Inc., 2013 WL 4495119, at *5 (E.D. Tex. Aug. 19,
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`2013) (Gilstrap, J.). This is precisely the type of “wastefulness of time, energy and money that
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`2 Huawei cites to Mr. Beyer’s declaration from a prior case involving different parties and different patents, yet his
`declaration merely states that documents existed in Florida. Mr. Beyer did not state that documentary evidence was
`not located in Texas.
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`4
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`Case 2:17-cv-00513-JRG Document 81 Filed 01/12/18 Page 6 of 8 PageID #: 4993
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`§ 1404(a) was designed to prevent.” In re Volkswagen of Am., Inc., 566 F.3d 1349, 1351 (Fed.
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`Cir. 2009).
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`V.
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`COMPULSORY PROCESS WEIGHS AGAINST TRANSFER
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`Huawei has failed to identify any witness that is unwilling to testify and for which
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`compulsory process is not available in this Court. Dkt. 36 at 14; Dkt. 74 at 5. Thus, the factor
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`concerning compulsory process does not favor transfer. Intellectual Ventures II v. FedEx Corp.,
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`2017 WL 3836127, at *3 (E.D. Tex. Apr. 18, 2017) (finding compulsory process factor to be
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`neutral where defendants did “not identify a single non-party witness unwilling to attend trial in
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`the Eastern District of Texas). Furthermore, because both parties have identified potential
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`witnesses across the country and globe, over which neither district has absolute subpoena power,
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`this factor does not favor transfer. See RPPost Holdings, Inc. v. StrongMail Sys., Inc., 2013 WL
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`4495119, at *3 (E.D. Tex. Aug. 19, 2013).
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`VI. CONCLUSION
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`For the foregoing reasons, AGIS respectfully requests that the Court deny Huawei’s
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`Motion to Transfer Venue.
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`Dated: January 12, 2018
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`Respectfully submitted,
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`BROWN RUDNICK LLP
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`/s/ Vincent J. Rubino, III
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`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: afabricant@brownrudnick.com
`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@brownrudnick.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@brownrudnick.com
`Joseph Mercadante
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`5
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`Case 2:17-cv-00513-JRG Document 81 Filed 01/12/18 Page 7 of 8 PageID #: 4994
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`
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`NY Bar No. 4784930
`Email: jmercadante@brownrudnick.com
`Alessandra C. Messing
`NY Bar No. 5040019
`Email: amessing@brownrudnick.com
`John A. Rubino
`NY Bar No. 5020797
`Email: jrubino@brownrudnick.com
`Enrique W. Iturralde
`NY Bar No. 5526280
`Email: eiturralde@brownrudnick.com
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
`Telephone: 212-209-4800
`Facsimile: 212-209-4801
`
`Samuel F. Baxter
`Texas State Bar No. 01938000
`sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`Texas State Bar No. 24012906
`jtruelove@mckoolsmith.com
`MCKOOL SMITH, P.C.
`104 E. Houston Street, Suite 300
`Marshall, Texas 75670
`Telephone: (903) 923-9000
`Facsimile: (903) 923-9099
`
`ATTORNEYS FOR PLAINTIFF AGIS
`SOFTWARE DEVELOPMENT LLC
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`6
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`Case 2:17-cv-00513-JRG Document 81 Filed 01/12/18 Page 8 of 8 PageID #: 4995
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on January 12, 2018, all counsel of record who are
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`deemed to have consented to electronic service are being served with a copy of this document via
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`the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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` /s/ Vincent J. Rubino, III
` Vincent J. Rubino, III
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