Case 2:17-cv-00514-JRG Document 73 Filed 09/24/18 Page 1 of 12 PageID #: 3136
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Civil Action No. 2:17-CV-514-JRG
`(Lead Case)
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`Civil Action No. 2:17-CV-515-JRG
`Civil Action No. 2:17-CV-517-JRG
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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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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`Defendants.
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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S OPPOSITION TO
`DEFENDANT LG ELECTRONICS, INC.’S MOTION TO SUPPLEMENT THE
`RECORD IN SUPPORT OF ITS MOTION TO TRANSFER VENUE TO THE
`NORTHERN DISTRICT OF CALIFORNIA
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`Case 2:17-cv-00514-JRG Document 73 Filed 09/24/18 Page 2 of 12 PageID #: 3137
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`I.
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`II.
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`TABLE OF CONTENTS
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`BACKGROUND .............................................................................................................2
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`ARGUMENT ..................................................................................................................4
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`A. Supplementation of the Record Should be Denied ............................................................4
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`B. The Proposed Additional Evidence is Not Determinative of the Outcome .........................4
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`III.
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`CONCLUSION ...............................................................................................................8
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`Case 2:17-cv-00514-JRG Document 73 Filed 09/24/18 Page 3 of 12 PageID #: 3138
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`Cases
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`TABLE OF AUTHORITIES
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`Page(s)
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`Blackberry Ltd. v. Avaya Inc.,
`No. 3:16-cv-012185-M (N.D. Tex. Oct. 10, 2017) ................................................................. 4
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`Saint Lawrence Commns. LLC v. LG Electronics, Inc.,
`No. 2:14-cv-1044-JRG, 2015 WL 7854738 (E.D. Tex. Dec. 3, 2015) .................................... 6
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`Vertical Comput. Sys., Inc. v. LG Elecs. MobileComm U.S.A., Inc.,
`No. 2:10-cv-490-JRG, 2013 WL 2241947 (E.D. Tex. May 21, 2013) .................................... 7
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`In re Volkswagen AG,
`371 F.3d 201 (5th Cir. 2004) ................................................................................................. 4
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`In re Volkswagen of America, Inc.,
`545 F.3d 304 (5th Cir. 2008) ................................................................................................. 4
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`Statutes
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`28 U.S.C. § 1404(a) .................................................................................................................... 2
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`ii
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`Case 2:17-cv-00514-JRG Document 73 Filed 09/24/18 Page 4 of 12 PageID #: 3139
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`Plaintiff AGIS Software Development LLC (“AGIS”), by and through its undersigned
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`counsel, submits this response in opposition to LG Electronics, Inc.’s (“LG”) Motion to
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`Supplement the Record in Support of its Pending Motion to Dismiss Pursuant for Lack of Personal
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`Jurisdiction or, in the Alternative, to Transfer Venue to the Northern District of California (513
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`Dkt. 46).
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`I.
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`BACKGROUND
`LG’s motion to supplement the record on its motion to transfer venue should be denied
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`because LG is seeking to capitalize on its own failure to provide adequate discovery to AGIS
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`about the features and functionalities of the accused infringing applications. AGIS has attempted
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`for months to obtain the information it needs from LG itself, only to be stonewalled by LG, which
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`has failed and refused to provide the relevant discovery and denies that it has such information.
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`Relevant portions of LG’s Objections and Responses to AGIS’s First Set of Interrogatories 1-10
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`are annexed as Exhibit A. AGIS has effectively been forced to seek that information via
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`deposition and document subpoenas served on non-party Google LLC (“Google”). LG now seizes
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`upon that, disingenuously arguing that this somehow “undermines the credibility of its previous
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`efforts to discount the relevance of Google’s witnesses, source code and other information to this
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`action” and that this supports the transfer of this action to the Northern District of California
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`pursuant to 28 U.S.C. § 1404(a). (514 Dkt. 66 at 3). To be clear, AGIS has not, on its own,
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`acknowledged that Google possesses the relevant information or that Google witnesses are
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`knowledgeable of the relevant facts. AGIS simply has had no choice but to serve Google with
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`document and deposition subpoenas in the hope of obtaining what LG has refused to provide. LG
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`Case 2:17-cv-00514-JRG Document 73 Filed 09/24/18 Page 5 of 12 PageID #: 3140
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`should not now be permitted to take advantage of its own failure to produce as a guise to
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`strengthen its case for a transfer of venue to what LG perceives will be a more favorable forum.
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`The thrust of LG’s motion is that AGIS’s subpoena, addressed to Google’s Mountain
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`View, California headquarters, is proof positive that this action should be transferred to the
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`Northern District of California. This is simply not the case. There is no evidence before this
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`Court as to what responsive documents and witness testimony Google possesses, merely the
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`cursory declarations from two Google employees that were submitted by LG’s co-defendant ZTE
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`months ago. (Dkt. 51-4,5).1 Most telling is the fact that in response to AGIS’s subpoenas, Google
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`objected and refused to produce the relevant information on the grounds that the information is or
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`may be in LG’s possession. See Google LLC’s Objections and Responses to Plaintiff AGIS
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`Software Development, LLC’s Deposition and Document Subpoenas (hereinafter, “Google’s
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`Objections and Responses”), a copy of which is annexed as Exhibit B.2 AGIS is thus caught in the
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`middle, between LG and Google, neither of whom is willing to produce information about the
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`accused applications. To this day, LG has not identified any documents or witnesses in the
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`proposed transferee district that are central to the outcome of this case, that so dramatically tip the
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`balance of the public and private interest factors as to justify transfer of venue at this time.
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`1 Declarations of Google employees Andrew Oplinger and William Luh virtually
`identical to those referred to and relied upon by LG here (517 Dkt. 51-4, 5), were already
`considered by this Court in connection with Huawei Device (Dongguan) Co., Ltd.’s (“Huawei”)
`Motion to Transfer Venue (513 Dkt. 36-4, 5). The Court found, "[n]otably, Huawei does not
`identify with any particularity any specific Google employees that they anticipating calling at
`trial or any documentation they plan to present as evidence." (513 Dkt. 140).
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`2 Specifically, Google objected to the subpoena “to the extent that it requests documents
`or information that can be requested with much less burden from one or more parties to the
`litigation. In particular, Google objects to producing documents duplicative of those the named-
`defendants have [sic] already produced or may produce in their respective litigations.” See
`Google's Objections and Responses at ¶ 7.
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`3
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`Case 2:17-cv-00514-JRG Document 73 Filed 09/24/18 Page 6 of 12 PageID #: 3141
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`Accordingly, both LG’s motion to supplement the record and its underlying motion to transfer
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`venue should be denied.
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`AGIS believes that the record on the motion to transfer is sufficient as is and need not be
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`supplemented. AGIS asserts that supplementation of the record on the motion to transfer would
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`not serve any useful purpose and should be denied. However, if the Court grants LG’s request,
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`then AGIS should be permitted to supplement the record with Google’s response to the subpoenas
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`to demonstrate (1) that the relevant information may not be obtainable from Google; and (2) that
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`Google itself has stated that LG may possess the relevant information. At the very least, it appears
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`that such information is not exclusively in Google’s possession in the proposed transferee district.
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`II.
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`ARGUMENT
`A. Supplementation of the Record Should be Denied
`Supplementation of the record on a pending motion may be denied where the new or
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`additional information is not dispositive. Blackberry Ltd. v. Avaya Inc., No. 3:16-cv-012185-M
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`(N.D. Tex. Oct. 10, 2017). Here, LG’s proposed addition of AGIS’s subpoena to Google
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`contributes nothing to the quantum of proof before the Court on the merits of the underlying
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`motion to transfer venue.
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`B. The Proposed Additional Evidence is Not Determinative of the Outcome
`LG’s motion should also be denied because even if the LG was permitted to add the
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`subpoena to Google to the record on this motion, LG has not demonstrated that this would
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`materially affect the outcome of the decision as to transfer venue. A motion to transfer venue is
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`determined not by any single factor but by looking at the totality of the private and public interest
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`factors. In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004); In re Volkswagen of America,
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`Inc., 545 F.3d 304, 315 (5th Cir. 2008) (“Although the Gilbert factors are appropriate for most
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`transfer cases, they are not necessarily exhaustive or exclusive. Moreover, we have noted that
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`Case 2:17-cv-00514-JRG Document 73 Filed 09/24/18 Page 7 of 12 PageID #: 3142
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`‘none . . . can be said to be of dispositive weight.”) (citing Action Indus., Inc. v. U.S. Fid. & Guar.
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`Corp., 358 F.3d 337, 340 (5th Cir. 2004)). Even in a case cited by LG, In re Genentech, the Court
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`held that “[i]n patent cases, ‘the bulk of relevant evidence usually comes from the accused
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`infringer . . .” (513 Dkt. 46 at 19), not from non-parties such as Google. In this case, LG admits
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`that “[d]ocuments relating to the Accused Devices are maintained in South Korea, California,
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`and/or New Jersey” and “primarily in Korea.” Id. at 20; 513 Dkt. 46-1 at ¶ 10.
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`The lack of certainty as to the specific evidence Google possesses and where it is located
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`further weighs against granting LG’s motion.3 In a related case before this Court, Apple argued in
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`favor of transfer based on the presence of 13 non-party witnesses located in the Northern District
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`of California who were the inventors of patents relied upon by Apple in its invalidity contentions.
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`See AGIS Software Development LLC v. Apple Inc., Case No. 2:17-cv-00516-JRG (E.D. Tex.),
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`Dkt. 76 at 12. This Court found that “Apple’s admission at argument that ‘one or two might’
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`testify at trial, that ‘a couple of these individuals might be relevant at trial,’ and Apple’s
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`representation that their investigation into the relevance of these individuals is ongoing and
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`‘depending on how that goes, there is, you know, at least a good possibility that [the location of
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`these individuals] should be afforded some weight.” Id. Ultimately however, the Court found that
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`lack of certainty as to the potential evidence from these non-party witnesses weighed against
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`transfer. Id. The same result should obtain here.
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`3 In LG’s initial disclosures updated August 31, 2018, LG continues to list a “Witness
`from Google LLC who may have knowledge related to the functionality implicated in the
`accused applications” yet has not identified any specific witnesses it expected to testify regarding
`the functionality and features of the applications nor identified any documents with specificity.
`(514 Dkt. 66 at 6). AGIS is entitled to seek discovery from witnesses listed in LG’s initial
`disclosures, especially in light of the lack of relevant discovery from LG itself, without being
`punished for this by being denied its chosen forum.
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`LG has tried to transfer venue away from this Court in other cases on similarly shaky
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`grounds and has lost. In Saint Lawrence Commns. LLC v. LG Electronics, Inc., No. 2:14-cv-1044-
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`JRG, 2015 WL 7854738, at *3 (E.D. Tex. Dec. 3, 2015), LG argued that its subsidiaries have
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`relevant information in San Diego weighing for a transfer to another district. The Court denied
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`transfer finding that the, “evidence suggests that technical and financial documents relating to the
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`accused products are also located in South Korea and New Jersey” and plaintiff demonstrated that
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`it possessed relevant evidence in this district. Id. Further, LG could not demonstrate that a non-
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`party, Qualcomm’s evidence “is clearly more accessible from San Diego . . . [and] [i]nstead LG
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`has only shown that Qualcomm’s documents are in both Raleigh and San Diego.” Id. As a result,
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`“LG has not shown that this factor weighs in favor of transfer . . . [and] [t]he Court finds that this
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`factor is neutral.” Id. Like the plaintiff in Saint Lawrence, AGIS has demonstrated that relevant
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`evidence from AGIS is located in Jupiter, Florida, Lenexa, Kansas, Austin, Texas, and Allen,
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`Texas.
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`LG misrepresents AGIS’s position regarding the discovery AGIS believed it might seek
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`from Google. At no point in this matter did AGIS explicitly state that it would not seek the
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`discovery of Google with respect to any proprietary Google application material. See Dkt. 68 at 7
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`(“If Google proves to be a relevant third party at all. . .”) (emphasis added); see also Dkt. 82 at 1
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`(“LGEKR does not indicate that any Google evidence, to the extent that it is necessary for this
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`case, is inaccessible in a convenient location in or near this District.”) (emphasis added). In fact,
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`AGIS represented that it would seek the discovery of Google if necessary and following the
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`limited discovery regarding the relevant functionality and features of the applications. At the
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`Evidentiary Hearing held on August 8, 2018, AGIS represented that “we don’t think we need it
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`at this point in time, but there may be, and we may take discovery of Google with respect to any
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`Case 2:17-cv-00514-JRG Document 73 Filed 09/24/18 Page 9 of 12 PageID #: 3144
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`proprietary Google application material that’s not in the [] public information.” (513 Dkt. 176 at
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`70:18-22) (emphasis added). At the time of its briefing and the Evidentiary Hearing, AGIS did
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`not feel the need to serve a subpoena on Google. However, as this matter progressed, because
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`LG did not produce the necessary and relevant information regarding the functionality and
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`features of the accused applications, AGIS was forced to seek this information from Google.
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`Even if at some point in the future it was determined that Google in fact possesses relevant
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`proof, which is by no means certain, this too would not justify transfer. Motions to transfer venue
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`“are not decided on a series of changing facts, but instead should be evaluated based on the
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`situation which existed when suit was filed.” Vertical Comput. Sys., Inc. v. LG Elecs.
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`MobileComm U.S.A., Inc., No. 2:10-cv-490-JRG, 2013 WL 2241947, at *3 (E.D. Tex. May 21,
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`2013) (citing In re EMC Corp., 2013 WL 324154, at *2 (Fed. Cir. Jan. 29, 2013)); see also Dkt.
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`176 at 57 (“[A]s I understand the law, [transfer is decided] at the time the complaint was filed . .
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`. not the time the motion to transfer was filed.”). At the time of the filing of the Complaint,
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`AGIS believed the relevant source code was publicly available or within the possession of LG
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`and that relevant proof would therefore likely be available without the need for Google as a non-
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`party witness. AGIS believed and continues to believe that this is the case. Google itself appears
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`to have confirmed that LG has the relevant information about the accused applications,
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`objecting to AGIS’s subpoena on the grounds and to the extent that such information is available
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`from LG. See Exh. B at ¶7. The fact that more than a year after the case was filed, AGIS has
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`had to seek that information from Google as a result of LG’s continued failure and refusal to
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`produce it, should not be held against AGIS and be used as a reason to transfer venue.
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`Case 2:17-cv-00514-JRG Document 73 Filed 09/24/18 Page 10 of 12 PageID #: 3145
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`III. CONCLUSION
`For the foregoing reasons, AGIS respectfully requests that the Court deny LG’s Motion to
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`Supplement the Record in Support of its Motion to Transfer Venue to the Northern District of
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`California. In the alternative, should the Court grant LG’s motion, AGIS should be permitted to
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`supplement the record on this motion with Googles Objections and Responses to AGIS’s
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`subpoenas.
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`Dated: September 24, 2018
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`Respectfully submitted
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`BROWN RUDNICK LLP
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` /s/ Alfred R. Fabricant
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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
`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
`Daniel J. Shea Jr.
`NY Bar No. 5430558
`dshea@brownrudnick.com
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
`Telephone: 212-209-4800
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`Case 2:17-cv-00514-JRG Document 73 Filed 09/24/18 Page 11 of 12 PageID #: 3146
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`Facsimile: 212-209-4801
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`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
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`ATTORNEYS FOR PLAINTIFF, AGIS
`SOFTWARE DEVELOPMENT LLC
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`Case 2:17-cv-00514-JRG Document 73 Filed 09/24/18 Page 12 of 12 PageID #: 3147
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on September 24, 2018, all counsel of record who
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`are deemed to have consented to electronic service are being served with a copy of this document
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`via the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`/s/ Alfred R. Fabricant
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` Alfred R. Fabricant
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