Case 2:17-cv-00514-JRG Document 266-2 Filed 03/04/19 Page 1 of 11 PageID #: 21183
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`Exhibit 1
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`Case 2:17-cv-00514-JRG Document 266-2 Filed 03/04/19 Page 2 of 11 PageID #: 21184
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`1
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF TEXAS
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`MARSHALL DIVISION
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`AGIS SOFTWARE DEVELOPMENT
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`LLC
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`VS.
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`HUAWEI DEVICE USE INC.,
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`ET AL.
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`CIVIL DOCKET NO.
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`2:17-CV-513-JRG
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`MARSHALL, TEXAS
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`AUGUST 8, 2018
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`9:03 A.M.
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`EVIDENTIARY HEARING
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`BEFORE THE HONORABLE CHIEF JUDGE RODNEY GILSTRAP
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`UNITED STATES DISTRICT JUDGE
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`APPEARANCES:
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`FOR THE PLAINTIFF : (See Attorney Attendance Sheet docketed
` in minutes of this hearing.)
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`FOR THE DEFENDANTS: (See Attorney Attendance Sheet docketed
` in minutes of this hearing.)
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`COURT REPORTER:
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`
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` Shelly Holmes, CSR-TCRR
` Official Reporter
` United States District Court
` Eastern District of Texas
` Marshall Division
` 100 E. Houston Street
` Marshall, Texas 75670
` (903) 923-7464
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`(Proceedings recorded by mechanical stenography, transcript
`produced on a CAT system.)
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`Case 2:17-cv-00514-JRG Document 266-2 Filed 03/04/19 Page 3 of 11 PageID #: 21185
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`2
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`I N D E X
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`August 8, 2018
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`Appearances
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`Hearing
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`Court Reporter's Certificate
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`Page
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`Case 2:17-cv-00514-JRG Document 266-2 Filed 03/04/19 Page 4 of 11 PageID #: 21186
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`3
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`COURT SECURITY OFFICER: All rise.
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`THE COURT: Be seated, please.
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`All right. This is the time set for an evidentiary
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`hearing in regard to AGIS Software Development versus
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`Huawei, et al. This is Civil Case No. 2:17-CV-513.
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`Let me call for announcements on the record.
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`What says the Plaintiff, AGIS Software?
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`MR. BAXTER: Good morning, Your Honor. Sam Baxter
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`and Jennifer Truelove from McKool Smith, and Fred Fabricant
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`and Vincent Rubino. And we're here for the Plaintiff, and
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`we're ready, Your Honor.
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`THE COURT: Thank you, counsel.
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`What says the Defendants?
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`MR. MANN: Good morning, Your Honor. Mark Mann on
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`behalf of LG Electronics, and along with me today are my
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`colleagues, Matt Wolf and Michael Berta. And we're ready to
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`proceed.
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`THE COURT: All right. Any other announcements?
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`Counsel, as you are aware, the Court has set for
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`today an evidentiary hearing based on -- or in relation to
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`Defendant LG's motion to dismiss for want of personal
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`jurisdiction. I've set out exactly what the parameters of
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`openings, presentation of evidence, and closing arguments
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`would be.
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`Before we proceed with this evidentiary hearing,
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`Case 2:17-cv-00514-JRG Document 266-2 Filed 03/04/19 Page 5 of 11 PageID #: 21187
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`19
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`THE COURT: Okay. So it's not different than
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`anywhere else?
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`MR. FABRICANT: It is not. But the reason we
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`believe it's critical is that the -- the motion --
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`THE COURT: I understand the significance of the --
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`MR. FABRICANT: Thank you.
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`THE COURT: -- of the facts.
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`MR. FABRICANT: Okay.
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`THE COURT: I just want to make sure I'm completely
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`clear.
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`MR. FABRICANT: Completely clear.
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`THE COURT: All right. Let's proceed.
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`MR. FABRICANT: So as I've stated, all of these
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`phones are sold by Korea to the U.S. entity. The U.S.
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`entity sells, in turn, to the -- in turn to the national
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`retailers and carriers. And there's no dispute that those
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`carriers, in turn, sell to end users throughout the United
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`States of America.
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`THE COURT: And going back one more time, you
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`indicated that there were no sales contracts produced
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`between LG Korea and LG U.S. or United States. Is that
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`because they don't exist, or do you know why they weren't
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`produced? Can you speak to that?
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`MR. FABRICANT: We asked Mr. Yoon. He said they
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`should exist. He said he didn't negotiate them, and he's
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`Case 2:17-cv-00514-JRG Document 266-2 Filed 03/04/19 Page 6 of 11 PageID #: 21188
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`20
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`never seen one, but they should exist.
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`And I asked him: Well, wouldn't that be the best
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`place to -- to know what the terms were, where -- where the
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`sale took place because it's the Defendants' position that
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`the sale, notwithstanding the shipping, that the sale took
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`place in Korea, not in the United States? It took place
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`overseas.
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`But he was unable to give any evidence as to how he
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`knows that, other than the fact that some accountant told
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`him that. And I asked him why -- why we don't we have the
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`contracts, and he didn't know.
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`THE COURT: Has there been no effort to compel the
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`production of those contracts or just accepting that they're
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`somewhere but not within either the parties' possession --
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`or at least the Plaintiff's possession, and they're
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`certainly not before the Court?
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`MR. FABRICANT: There has been no motion. We took
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`the deposition of Mr. Yoon last Thursday, Your Honor, in
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`Washington, D.C. And we don't think having the contract
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`itself really is critical to this Court making its decision
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`because we believe the evidence is overwhelming. And the
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`invoices -- the commercial invoices, what's presented to
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`Customs signed by the president of Korea, he represents to
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`Customs the terms of the sale. So we believe that should
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`be, you know, compelling evidence to which the Defendant is
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`Case 2:17-cv-00514-JRG Document 266-2 Filed 03/04/19 Page 7 of 11 PageID #: 21189
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`21
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`bound.
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`THE COURT: Okay. So you -- you've made a
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`conscious decision not to seek a motion or an order of the
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`Court compelling their production?
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`MR. FABRICANT: We have, Your Honor.
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`THE COURT: Okay. Let's go forward.
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`MR. FABRICANT: The distribution chain that we've
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`described here this morning, Your Honor, has existed in the
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`same forum for many years, hasn't changed, going all the way
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`back to at least the beginning of the 2000s. So this has
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`been the way they've done business, Korea to the United
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`States. And you'll hear Mr. Yoon agree that it's a
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`long-established chain of distribution.
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`Now, one of the important factors, I think, as
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`well, because the Defendant in Korea claims they don't know
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`exactly where all of these phones end up. They don't know
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`for sure that they're going to be sold in various states.
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`They don't know.
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`And I think the -- it is totally belied by the fact
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`that not only does the Korean company manufacture the
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`sale -- the device itself, but they put the trademarks and
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`logos of the U.S. carriers on the phones during the
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`manufacturing process. That phone has to go to Verizon, has
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`to go to AT&T. It's got the logo on it in the manufactured
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`phones.
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`Case 2:17-cv-00514-JRG Document 266-2 Filed 03/04/19 Page 8 of 11 PageID #: 21190
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`35
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`stream of commerce cases are simply irrelevant.
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`Next.
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`THE COURT: Let me ask this question.
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`MR. WOLF: Yes, Your Honor.
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`THE COURT: Clearly, Plaintiff's counsel made it
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`known that they made a conscious decision not to seek the
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`Court's involvement in compelling the production of any
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`contractual record between LG Korea and LG United States.
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`What can you tell the Court about whether that exists? Why
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`wasn't it produced under your obligation under the Court's
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`local rules? It seems to me that source might have been
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`probative in this context, but for one reason or another,
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`it's not before me. And I'm not trying to stop the train
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`and say go get it and then come back, but I'm curious as to
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`why it's not before me.
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`MR. WOLF: Understood.
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`THE COURT: And you probably know more about that
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`than Plaintiff's counsel does.
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`MR. WOLF: I personally know a little bit more
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`about that, but not -- perhaps not this -- can we jump ahead
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`to -- sorry. Can we jump ahead to the quote -- the
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`deposition quote about sales? Keep going. Keep going.
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`There.
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`So this was the testimony at deposition where the
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`sales take place overseas. That was -- assuming that's
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`Case 2:17-cv-00514-JRG Document 266-2 Filed 03/04/19 Page 9 of 11 PageID #: 21191
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`76
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`the argument that there's some -- Texas is between
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`California and Florida and thus it's equally inconvenient to
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`everyone I would submit is an argument where inconvenience
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`to the AGIS witnesses should be entitled to less weight
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`because the creation of the Texas entity and coming to Texas
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`was AGIS's decision to do. If it was worried with respect
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`to the issue of convenience, it could have sued from
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`Florida, as it did before, on patents related to the
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`patents-in-suit.
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`And so the idea that there is a convenience factor
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`with respect to AGIS party witnesses, I would ask the Court
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`to discount that because that is a convenience issue that
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`they have created by coming to Texas, which they did not
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`need to do.
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`And on that, we will submit, Your Honor.
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`THE COURT: All right.
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`MR. BERTA: Thank you.
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`THE COURT: All right. Well, the 1404 issue is
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`before the Court, and the Court will take it under
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`submission.
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`The Court intends to turn its attention first to
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`the personal jurisdiction issue related to the motion to
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`dismiss. And I'll consider the evidence that is being
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`tendered, and in -- I'll consider it in light of the
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`argument on that issue that you presented today.
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`Case 2:17-cv-00514-JRG Document 266-2 Filed 03/04/19 Page 10 of 11 PageID #: 21192
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`77
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`Counsel, as far as I can see, that covers what is
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`set before the Court today.
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`Is anyone aware of anything that I've not taken up
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`that should have been presented today?
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`MR. WOLF: No, Your Honor.
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`MR. FABRICANT: No, Your Honor.
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`THE COURT: Then that will complete the hearing
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`this morning in regard to these issues, counsel. Thank you
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`for your attendance and participation.
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`You're excused.
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`MR. FABRICANT: Thank you, Your Honor.
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`MR. WOLF: Thank you, Your Honor.
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`COURT SECURITY OFFICER: All rise.
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`(Hearing concluded.)
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`Case 2:17-cv-00514-JRG Document 266-2 Filed 03/04/19 Page 11 of 11 PageID #: 21193
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`CERTIFICATION
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`I HEREBY CERTIFY that the foregoing is a true and
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`correct transcript from the stenographic notes of the
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`proceedings in the above-entitled matter to the best of my
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`ability.
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` /S/ Shelly Holmes 8/14/18
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`SHELLY HOLMES, CSR, TCRR
`Date
`OFFICIAL REPORTER
`State of Texas No.: 7804
`Expiration Date: 12/31/18
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