Case 2:17-cv-00514-JRG Document 74 Filed 09/24/18 Page 1 of 12 PageID #: 3218
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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,
`HTC ELECTRONICS, INC.,
`ZTE CORPORATION, ZTE (USA), INC.,
`AND ZTE (TX), INC.,
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`Defendants.
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`§
`§
`§
`§
`§
`§
`§
`§
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`§
`§
`§
`§
`§
`§
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`§
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`PLAINTIFF AGIS SOFTWARE DEVELOPMENT LLC’S OPPOSITION TO
`DEFENDANT HTC CORPORATION’S MOTION TO SUPPLEMENT THE
`RECORD IN SUPPORT OF ITS MOTION TO DISMISS PURUSUANT TO
`FED. R. CIV. P. 12(B)(2) OR, IN THE ALTERNATIVE, TO TRANSFER
`VENUE TO THE NORTHERN DISTRICT OF CALIFORNIA
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`Case 2:17-cv-00514-JRG Document 74 Filed 09/24/18 Page 2 of 12 PageID #: 3219
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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
`III. CONCLUSION ............................................................................................................. 8
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`i
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`Case 2:17-cv-00514-JRG Document 74 Filed 09/24/18 Page 3 of 12 PageID #: 3220
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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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`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 74 Filed 09/24/18 Page 4 of 12 PageID #: 3221
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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 HTC Corporation’s (“HTC”) Motion to
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`Supplement the Record in support of its pending Motion to Dismiss Pursuant to Fed. R. Civ. P.
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`12(b)(2) or, in the Alternative, to Transfer Venue to the Northern District of California (514 Dkt.
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`29).
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`I.
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`BACKGROUND
`HTC’s motion to supplement the record on its motion to transfer venue should be denied
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`because HTC 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 HTC itself, only to be stonewalled by HTC,
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`which has failed and refused to provide the relevant discovery and denies that it has such
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`information. Relevant portions of HTC’s Objections and Responses to AGIS’s First Set of
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`Interrogatories 1-10 are annexed as Exhibit A. AGIS has effectively been forced to seek that
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`information via deposition and document subpoenas served on non-party Google LLC (“Google”).
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`HTC now seizes upon that, disingenuously arguing that this somehow “undermines the credibility
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`of its previous efforts to discount the relevance of Google’s witnesses, source code and other
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`information to this action” and that this supports the transfer of this action to the Northern District
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`of California pursuant to 28 U.S.C. § 1404(a). (514 Dkt. 71 at 3). To be clear, AGIS has not, on its
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`own, 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 a
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`document and deposition subpoena in the hope of obtaining what HTC has refused to provide.
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`2
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`Case 2:17-cv-00514-JRG Document 74 Filed 09/24/18 Page 5 of 12 PageID #: 3222
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`HTC 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 HTC perceives will be a more favorable forum.
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`The thrust of HTC’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 Court
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`as to what responsive documents and witness testimony Google possesses, merely the cursory
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`declarations from two Google employees submitted by Huawei in support of its motion months
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`ago. See 513 Dkt. 36-4; Dkt. 36-5. Most telling is the fact that in response to AGIS’s subpoenas,
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`Google objected and refused to produce the relevant information on the grounds that the
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`information is or may be in HTC’s possession. See Google LLC’s Objections and Responses to
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`Plaintiff AGIS Software Development, LLC’s Deposition and Document Subpoenas (hereinafter,
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`“Google’s Objections and Responses”), a copy of which is annexed as Exhibit B.1 AGIS is thus
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`caught in the middle, between HTC and Google, neither of whom is willing to produce
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`information about the accused applications. HTC has not identified any documents or witnesses in
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`the proposed transferee district that are central to the outcome of this case, that so dramatically tip
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`the balance of the public and private interest factors as to justify transfer of venue at this time.2
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`1 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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`2 The only evidence HTC points to in support of its contention that Google has relevant
`information and that it is located in the Northern District of California are the declarations of
`Google employees Messrs. Andrew Oplinger and William Luh submitted with Huawei Device
`(Dongguan) Co., Ltd.’s (“Huawei”) Motion to Transfer Venue. (513 Dkt. 36-4; Dkt 35-5). This
`Court has already considered the same declarations in connection with Huawei’s Motion to
`Transfer Venue and found, “[n]otably, Huawei does not identify with any particularity any
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`3
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`Case 2:17-cv-00514-JRG Document 74 Filed 09/24/18 Page 6 of 12 PageID #: 3223
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`Accordingly, both HTC’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 HTC’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 HTC may possess the relevant information. At the very least, it
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`appears that such information is not exclusively in Google’s possession in the proposed transferee
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`district.
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`II.
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`ARGUMENT
`A.
`Supplementation of the Record Should be Denied
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`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, HTC’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.
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`The Proposed Additional Evidence is Not Determinative of the Outcome
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`HTC’s motion should also be denied because even if the HTC was permitted to add the
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`subpoena to Google to the record on this motion, HTC 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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`specific Google employees that they anticipate calling at trial or any documentation they plan to
`present as evidence.” (513 Dkt. 140).
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`4
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`Case 2:17-cv-00514-JRG Document 74 Filed 09/24/18 Page 7 of 12 PageID #: 3224
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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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`‘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 HTC, In re Genentech, the
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`Court 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, HTC admits
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`that “HTC Corp.’s documents and source code are in Taiwan.” 514 Dkt. 29 at 16.
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`AGIS has demonstrated that relevant evidence from AGIS is located in Jupiter, Florida;
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`Lenexa, Kansas; Austin, Texas; and Allen, Texas. HTC attempts to minimize the weight given to
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`the location of AGIS’s proof at its offices in Marshall, Texas, as well as in offices of its related
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`companies in Jupiter, Florida; Lenexa, Kansas; and Austin, Texas. See 514 Dkt. 29 at 18. This
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`Court has addressed defendants’ arguments, stating that “the Court will not ignore AGIS’s
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`documentary sources of proof in evaluating this factor” without evidence of ephemeralness against
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`AGIS. (516 Dkt. 76 at 7). HTC further attempts to dismiss the location of AGIS’s consultant, Eric
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`Armstrong, in Allen, Texas as irrelevant to this matter as Mr. Armstrong “is unlikely to have
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`relevant documents and testimony,” and therefore, this Court “should not give any weight to the
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`location of Messrs. Armstrong and Sietsema or Mrs. Clark.” Id. at 19. However, this Court has
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`stated in both the Huawei and Apple co-pending consolidated cases that “the relevance of Mr.
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`Armstrong’s documentary evidence lies in Apple’s Answer, wherein it asserts a marking defense,
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`arguing that damages are barred as a result of failure to mark by AGIS.” 516 Dkt. 76 at 5; 513
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`Dkt. 140 at 9.
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`5
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`Case 2:17-cv-00514-JRG Document 74 Filed 09/24/18 Page 8 of 12 PageID #: 3225
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`There is nothing in the record on this motion, i.e. in the declarations submitted by Google
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`employees Messrs. Luh and Oplinger, that specifies the documents Google would produce or
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`testimony that would be offered by specific Google employees located only in the Northern
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`District of California.3 See 513 Dkt. 36-4, 5. This lack of certainty as to the specific evidence
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`Google possesses and where it is located further weighs against granting HTC’s motion. In a
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`related case before this Court, Apple argued in favor of transfer based on the presence of 13 non-
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`party witnesses located in the Northern District of California who were the inventors of patents
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`relied upon by Apple in its invalidity contentions. See AGIS Software Development LLC v. Apple
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`Inc., Case No. 2:17-cv-00516-JRG (E.D. Tex.), Dkt. 76 at 12. This Court found that “Apple’s
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`admission at argument that ‘one or two might’ testify at trial, that ‘a couple of these individuals
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`might be relevant at trial,’ and Apple’s representation that their investigation into the relevance of
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`these individuals is ongoing and ‘depending on how that goes, there is, you know, at least a good
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`possibility that [the location of these individuals] should be afforded some weight.” Id. Ultimately
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`however, the Court found that lack of certainty as to the potential evidence from these non-party
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`witnesses weighed against transfer. Id. The same result should obtain here.
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`HTC 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. 40 at 2
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`3 In HTC's initial disclosures updated July 18, 2018, HTC lists witnesses, Drew Rowny,
`Andrew Lee, Brian Johnson, Abeer Dubey, Andrew Oplinger, Daniel Resnick, Tom Green, and
`William Luh, from Google as having “[k]knowledge regarding accused functionality” in addition
`to “[a]s yet unidentified third-party Google LLC . . . [and] Google Inc. witnesses.” HTC’s
`Supplemental Initial Disclosures at 7, a copy of which is annexed here as Exhibit C. AGIS is
`entitled to seek discovery from witnesses listed in HTC’s initial disclosures, especially in light of
`the lack of relevant discovery from HTC itself, without being punished for this by being denied
`its chosen forum.
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`6
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`Case 2:17-cv-00514-JRG Document 74 Filed 09/24/18 Page 9 of 12 PageID #: 3226
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`(“Even if Google possesses relevant documents and employs individuals who have knowledge
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`about the Accused Products and functionality . . .” (emphasis added); see also Id. at 7 (“If Google
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`proves to a be relevant third party at all, Google’s Austin, Texas employees would be likely to
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`have relevant information . . .”) (emphasis added). In fact, AGIS represented that it would seek the
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`discovery of Google if necessary and following the limited discovery regarding the relevant
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`functionality and features of the applications. At the Evidentiary Hearing held on August 8, 2018,
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`AGIS represented that “we don’t think we need it at this point in time, but there may be, and we
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`may take discovery of Google with respect to any proprietary Google application material that’s
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`not in the [] public information.” 513 Dkt. 176 at 70:18-22 (emphasis added). At the time of its
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`briefing and the Evidentiary Hearing, AGIS did not feel the need to serve a subpoena on
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`Google. However, as this matter progressed, because HTC did not produce the necessary and
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`relevant information regarding the functionality and features of the accused applications, AGIS
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`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)). At the time
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`of the filing of the Complaint, AGIS believed the relevant source code was publicly available or
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`within the possession of HTC and that relevant proof would therefore likely be available without
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`the need for Google as a non-party witness. AGIS believed and continues to believe that this is
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`the case. Google itself appears to have confirmed that HTC has the relevant information about
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`7
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`Case 2:17-cv-00514-JRG Document 74 Filed 09/24/18 Page 10 of 12 PageID #: 3227
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`the accused applications, objecting to AGIS’s subpoena on the grounds and to the extent that
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`such information is available from HTC. See Exh. B at ¶ 7. The fact that more than a year after
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`the case was filed, AGIS has had to seek that information from Google as a result of HTC’s
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`continued failure and refusal to produce it, should not be held against AGIS and be used as a
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`reason to transfer venue.
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`III. CONCLUSION
`For the foregoing reasons, AGIS respectfully requests that the Court deny HTC’s Motion
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`to Supplement the Record in Support of its Motion to Transfer Venue to the Northern District of
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`California. AGIS should be permitted to supplement the record on this motion with Google’s
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`Objections and Responses to AGIS’s 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
`
`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
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`8
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`Case 2:17-cv-00514-JRG Document 74 Filed 09/24/18 Page 11 of 12 PageID #: 3228
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`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
`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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`Case 2:17-cv-00514-JRG Document 74 Filed 09/24/18 Page 12 of 12 PageID #: 3229
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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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`63164936 v1
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