Case 2:17-cv-00514-JRG Document 66 Filed 09/04/18 Page 1 of 9 PageID #: 2864
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`Plaintiff,
`
`v.
`
`HTC CORPORATION,
`LG ELECTRONICS, INC.,
`ZTE CORPORATION, ZTE (USA), INC.,
`AND ZTE (TX), INC.
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`Civil Action No. 2:17-CV-514-JRG
`(Lead Case)
`
`Civil Action No. 2:17-CV-515-JRG
`Civil Action No. 2:17-CV-517-JRG
`
`DEFENDANT LG ELECTRONICS, INC.’S
`OPPOSED MOTION TO SUPPLEMENT THE RECORD IN SUPPORT OF ITS
`MOTION TO TRANSFER VENUE TO THE NORTHERN DISTRICT OF CALIFORNIA
`
`

`

`Case 2:17-cv-00514-JRG Document 66 Filed 09/04/18 Page 2 of 9 PageID #: 2865
`
`Defendant LG Electronics, Inc. (“Defendant” or “LGEKR”) respectfully submits this
`
`motion to supplement the record in support of its pending Motion to Dismiss for Lack of
`
`Personal Jurisdiction or, in the Alternative, to Transfer Venue to the Northern District of
`
`California (the “Motion to Transfer Venue”) (513 Dkt. 46).
`
`I.
`
`BACKGROUND
`
`On November 27, 2017, LGEKR moved to transfer the above-captioned action filed by
`
`AGIS Software Development LLC (“Plaintiff” or “AGIS”) to the Northern District of California.
`
`(See 513 Dkt. 46). In support of a change in venue, Defendant submitted evidence that the core
`
`of the accused applications in this case is provided by third-party Google LLC (“Google”), and
`
`the relevant witnesses and information about those functionalities are located in and around
`
`Northern California. (See id. at 7-8, 20, 23). LGEKR submitted declarations from Google
`
`witnesses establishing that, for the accused functionality for Google Maps for Mobile application
`
`(“GMM”) and Google’s Find My Device (formerly known as Android Device Manager), the
`
`relevant source code and other information regarding these applications is confidential and
`
`proprietary, and that those documents and relevant Google witnesses are located in the Northern
`
`District of California. (513 D.I. 36-4 ¶ 6, 513 D.I. 36-5 ¶ 6, 513 D.I. 74-8, 513 D.I. 74-9). AGIS
`
`itself confirmed that these were the core accused applications for the case when it served its
`
`Disclosure of Asserted Claims and Infringement Contentions on November 28, 2017. (513 Dkt.
`
`77-1, Ex. 1).
`
`At the time of briefing for the Motion to Transfer Venue, AGIS dismissed the
`
`relevance, location and convenience of non-party Google, arguing that “much of that
`
`information [concerning the accused functionality related to Google’s Android Operating
`
`System] is publicly available through either open source code or public application
`
`2
`
`

`

`Case 2:17-cv-00514-JRG Document 66 Filed 09/04/18 Page 3 of 9 PageID #: 2866
`
`programming interfaces (‘API’).” (513 Dkt. 68 at 2, 19). Plaintiff further argued that “[t]he
`
`only documents LGEKR argues might be located in the transferee forum are the source code . .
`
`. which is already publicly available . . . and unidentified ‘Android-related certification
`
`documents and records’ in LGEMU’s office . . . which LGEKR admits are likely available
`
`electronically if relevant at all.” (Id. at 22). In fact, AGIS explicitly disputed “Google’s
`
`possible role as a non-party” and took the position that any discovery into Google’s
`
`confidential and proprietary source code and other information for GMM and Find My Device
`
`is irrelevant to the claims asserted against the Android defendants, such as LGEKR.1 AGIS
`
`Software Development LLC v. Huawei Device USA Inc., et al., No. 2:17-cv-513-JRG (E.D.
`
`Tex.), D.I. 56 at 9 (“Google’s possible role as a non-party in this case − which is disputed by
`
`AGIS . . . ); id. at 9, n.5 (“AGIS has chosen not to pursue claims related to methods
`
`performed by a server against Huawei.”).
`
`New evidence has recently emerged confirming Defendant’s argument that the location
`
`and convenience of non-party Google weighs in favor of transfer to the Northern District of
`
`California. On August 23, 2018 and August 29, 2018, AGIS served deposition and document
`
`subpoenas on Google in both of the consolidated cases against Android Defendants, AGIS
`
`Software Development LLC v. Huawei Device USA Inc., et al., No. 2:17-cv-513-JRG (E.D. Tex.)
`
`and AGIS Software Development LLC v. HTC Corp., No. 2:17-cv-514-JRG (E.D. Tex.). See
`
`Notice of Subpoenas to Google LLC attached as Exhibits A and B. AGIS’s subpoena
`
`undermines the credibility of its previous efforts to discount the relevance of Google’s witnesses,
`
`source code and other information to this action. Notwithstanding AGIS’s representations that
`
`1 AGIS asserts the same claims against all Android Defendants (LGEKR, Huawei, HTC, and
`ZTE) in the two consolidated cases (Case No. 17-cv-513 (Huawei) and Case No. 17-cv-514
`(LGEKR, HTC, and ZTE)).
`
`3
`
`

`

`Case 2:17-cv-00514-JRG Document 66 Filed 09/04/18 Page 4 of 9 PageID #: 2867
`
`“AGIS’s infringement contentions . . . rely only on publicly available open source code or public
`
`APIs,” (513 D.I. 56 at 9), AGIS’s subpoena seeks the confidential and proprietary source code
`
`for Google Maps and Find My Device. AGIS also seeks from Google other technical documents
`
`that show the operation, design, development, functionality, features, testing, and manufacture of
`
`Google Maps and Find My Device. Furthermore, despite AGIS’s assertion that it “has chosen
`
`not to pursue claims related to methods performed by a server against Huawei,” (id. at 9, n.5),
`
`AGIS now seeks the communication protocols used with Android Applications between one or
`
`more Google Servers and/or one or more other Android Devices and the source code for Google
`
`Servers. Indeed, the subpoena confirms that the key sources of evidence regarding the operation,
`
`design, and function of the applications identified in AGIS’s Infringement Contentions reside
`
`with Google in and around the Northern District of California. Because Google’s documents and
`
`witness testimony helps resolve critical issues regarding the accused applications, LGEKR
`
`respectfully submits that AGIS’s service of the subpoenas on Google confirms the
`
`appropriateness of transferring the present litigation to the Northern District of California
`
`pursuant to 28 U.S.C. § 1404(a).
`
`II.
`
`ARGUMENT
`
`When resolving a challenge to the propriety of venue, this Court enjoys broad discretion
`
`to allow the moving party to supplement the record with additional facts and evidence. See, e.g.,
`
`Murungi v. Touro Infirmary, No. 6:11-cv-0411, 2011 WL 3206859, at *2 (W.D. La. June 29,
`
`2011) (noting the broad discretion to consider supplemental evidence when ruling on a motion to
`
`transfer venue); accord Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009) (noting
`
`the Court’s broad discretion to consider supplemental evidence when ruling on a Rule 12(b)(1)
`
`or 12(b)(3) motion). Exercise of such discretion is appropriate when new information emerges
`
`4
`
`

`

`Case 2:17-cv-00514-JRG Document 66 Filed 09/04/18 Page 5 of 9 PageID #: 2868
`
`that can assist the Court’s consideration of the transfer motion. See, e.g., Nationwide Mutual Ins.
`
`Co. v. The Overlook, LLC, No. 4:10-cv-00069, 2010 WL 2520973, at *10 (E.D. Va. June 17,
`
`2010) (granting motion to supplement a transfer motion because it assisted the court’s
`
`consideration of the matter).
`
`In the present matter, Defendant respectfully submits that the subpoena on Google will
`
`advance the Court’s consideration of the Motion to Transfer Venue by, inter alia, demonstrating
`
`that the relative ease of access to sources of proof and convenience for witnesses factors favor
`
`transfer, and confirming that AGIS’s arguments downplaying the relevance of Google’s
`
`documents and witnesses was an argument of convenience during transfer briefing that AGIS has
`
`abandoned now that it actually must litigate the merits of its claims.
`
`In Defendant’s Motion to Transfer Venue, Defendant argued that relevant documents,
`
`including highly proprietary source code, and witnesses with knowledge relating to the
`
`operation, design, and function of the third-party Accused Applications are located in the
`
`Northern District of California or at locations far more convenient to the Northern District of
`
`California than to the Eastern District of Texas. (513 Dkt. 46 at 20). In its opposition, Plaintiff
`
`repeatedly suggested that the relevant Google documents are already publicly available, and thus
`
`should not be considered under the access to sources of proof factor. (513 Dkt. 68 at 22 (“The
`
`only documents LGEKR argues might be located in the transferee forum are the source code
`
`(513 Dkt. 46 at 20) which is already publicly available . . . .”); 24 n.11 (“LGEKR argues that
`
`relevant documents, including source code, are located in or near the Northern District of
`
`California. Dkt. 46 at 20. But, as discussed above, AGIS’s infringement contentions rely on
`
`Google’s open source code and/or application programming interfaces, which are publicly
`
`available.”)). The subpoenas to Google, however, establish that Plaintiff’s arguments should not
`
`5
`
`

`

`Case 2:17-cv-00514-JRG Document 66 Filed 09/04/18 Page 6 of 9 PageID #: 2869
`
`be credited. Specifically, the document subpoena seeks, among other requests, the source code
`
`related to the accused functionalities of Google Maps, Find My Device, and Android Device
`
`Manager, and documents sufficient to show the structure, operation, design, development,
`
`functionality, features, testing, and manufacture of the accused functionalities of Google Maps,
`
`Find my Device, and Android Device Manager. These document requests confirm that AGIS
`
`does not actually believe that its infringement case will rely solely on publicly available Google
`
`documents, regardless of whatever AGIS put in its initial infringement contentions. Moreover,
`
`AGIS seeks the production of such documents in the Northern District of California, further
`
`confirming that the relevant documents in the instant case are located in the Northern District of
`
`California.
`
`With respect to the convenience of the parties and witnesses factor, LGEKR explained
`
`that Google witnesses would be the “key (and the only) sources of evidence regarding the
`
`operation, design, and function of the Google applications” and that such witnesses reside in and
`
`around the Northern District of California. (513 Dkt. 46 at 23). In its Opposition, Plaintiff again
`
`dismissed the relevance of Google witnesses because “AGIS’s infringement contentions rely on
`
`Google’s open source code and/or application programming interfaces, which are publicly
`
`available.” (513 Dkt. 68 at 19). Furthermore, AGIS suggested that many of Google’s potential
`
`witnesses reside in Texas. (Id. at 19-20). Nevertheless, AGIS’s deposition subpoena, which was
`
`noticed in the Northern District of California, seeks testimony explaining the source code for
`
`Google Maps and Find My Device, as well as testimony on the structure, operation, design,
`
`development, functionality, features, testing, and manufacture for the accused features of Google
`
`Maps and Find My Device. Thus, the deposition subpoena shows that Google’s witnesses are
`
`6
`
`

`

`Case 2:17-cv-00514-JRG Document 66 Filed 09/04/18 Page 7 of 9 PageID #: 2870
`
`not only relevant but crucial to understand the operation of the accused features of Google Maps
`
`and Find My Device, and that those witnesses are located in the Northern District of California.
`
`When considered in this context, AGIS’s position that it “has no sources of proof in the
`
`proposed transferee district” (513 Dkt. 68 at 25) is simply not true. It does have a source of
`
`proof in the Northern District of California -- Google -- and the evidence it now seeks is
`
`precisely the evidence LGEKR identified in its transfer motion. It is not appropriate for AGIS to
`
`discount relevant Google documents and testimony for purposes of the transfer analysis, yet
`
`simultaneously seek a deposition and documents from Google through a subpoena. See In re
`
`Microsoft Corp., 630 F.3d 1361, 1364 (Fed. Cir. 2011) (“The Supreme Court has long urged
`
`courts to ensure that the purposes of jurisdictional and venue laws are not frustrated by a party’s
`
`attempt at manipulation.”). Accordingly, the Google subpoena demonstrates that relevant
`
`evidence in this action resides in the Northern District of California and only further confirms the
`
`appropriateness of transferring the present litigation to the United States District Court for the
`
`Northern District of California pursuant to 28 U.S.C. § 1404(a).
`
`III. CONCLUSION
`
`For the foregoing reasons, Defendant respectfully submits that the Court grant its motion
`
`to supplement the record in support of its pending Motion to Transfer Venue.
`
`Dated: September 4, 2018
`
`
`
`Respectfully submitted,
`/s/ Mark Mann
`Mark Mann
`SBN: 12926150
`mark@themannfirm.com
`G. Blake Thompson
`SBN: 24042033
`blake@themannfirm.com
`MANN TINDEL THOMPSON
`300 West Main Street
`Henderson, Texas 75652
`
`7
`
`

`

`Case 2:17-cv-00514-JRG Document 66 Filed 09/04/18 Page 8 of 9 PageID #: 2871
`
`Tel: 903-657-8540
`
`Michael A. Berta
`Michael.berta@arnoldporter.com
`ARNOLD & PORTER
`KAYE SCHOLER LLP
`Three Embarcadero Center
`10th Floor
`San Francisco, CA 94111-4024
`Tel: 415-471-3000
`
`Matthew M. Wolf
`Matthew.wolf@arnoldporter.com
`ARNOLD & PORTER
`KAYE SCHOLER LLP
`601 Massachusetts Ave., NW
`Washington, DC 20001-3743
`Tel: 202-942-5000
`
`James S. Blackburn
`James.blackburn@arnoldporter.com
`Nicholas H. Lee
`Nicholas.lee@arnoldporter.com
`ARNOLD & PORTER
`KAYE SCHOLER LLP
`777 South Figueroa Street
`44th Floor
`Los Angeles, CA 90017-5844
`Tel: 213-243-4000
`
`ATTORNEYS FOR DEFENDANT LG
`ELECTRONICS, INC.
`
`8
`
`

`

`Case 2:17-cv-00514-JRG Document 66 Filed 09/04/18 Page 9 of 9 PageID #: 2872
`
`CERTIFICATE OF CONFERENCE
`
`Pursuant to Local Rule CV-7, the undersigned certifies that counsel have conferred on
`
`whether Plaintiff opposes the motion and relief requested herein. Plaintiff is opposed to the
`
`motion.
`
`/s/ Mark Mann
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that on September 4, 2018, a true and correct copy of
`
`the foregoing was served to the parties’ counsel of record via ECF pursuant to Local Rule CV-
`
`5(d).
`
`/s/ Mark Mann
`
`9
`
`