Case 2:17-cv-00516-JRG Document 74 Filed 04/04/18 Page 1 of 61 PageID #: 1311
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`AGIS SOFTWARE DEVELOPMENT LLC )(
`PLAINTIFF
` )(
` )(
` )(
` )(
` )(
`MARCH 27, 2018
` )(
`10:29 A.M.
` )(
`MOTION HEARING
`BEFORE THE HONORABLE CHIEF JUDGE RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
`
`
`CIVIL DOCKET NO.
`2:17-CV-516-JRG
`MARSHALL, TEXAS
`
`VS.
`
`APPLE INC.
`DEFENDANT
`
`APPEARANCES:
`FOR THE PLAINTIFF: (See Attorney Attendance Sheet docketed
`in minutes of this hearing.)
`
`FOR THE DEFENDANT: (See Attorney Attendance Sheet docketed
`in minutes of this hearing.)
`
`COURT REPORTER:
`
`Shelly Holmes, CSR, TCRR
`Official Court Reporter
`United States District Court
`Eastern District of Texas
`Marshall Division
`100 E. Houston
`Marshall, Texas 75670
`(903) 923-7464
`
`(Proceedings recorded by mechanical stenography, transcript
`produced on a CAT system.)
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`AGIS SOFTWARE DEVELOPMENT LLC )(
`PLAINTIFF
` )(
` )(
` )(
` )(
` )(
`MARCH 27, 2018
` )(
`10:29 A.M.
` )(
`MOTION HEARING
`BEFORE THE HONORABLE CHIEF JUDGE RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
`
`
`CIVIL DOCKET NO.
`2:17-CV-516-JRG
`MARSHALL, TEXAS
`
`VS.
`
`APPLE INC.
`DEFENDANT
`
`APPEARANCES:
`FOR THE PLAINTIFF: (See Attorney Attendance Sheet docketed
`in minutes of this hearing.)
`
`FOR THE DEFENDANT: (See Attorney Attendance Sheet docketed
`in minutes of this hearing.)
`
`COURT REPORTER:
`
`Shelly Holmes, CSR, TCRR
`Official Court Reporter
`United States District Court
`Eastern District of Texas
`Marshall Division
`100 E. Houston
`Marshall, Texas 75670
`(903) 923-7464
`
`(Proceedings recorded by mechanical stenography, transcript
`produced on a CAT system.)
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`Case 2:17-cv-00516-JRG Document 74 Filed 04/04/18 Page 2 of 61 PageID #: 1312
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`I N D E X
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`March 27, 2018
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`Appearances
`Hearing
`Court Reporter's Certificate
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`Page
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`Case 2:17-cv-00516-JRG Document 74 Filed 04/04/18 Page 3 of 61 PageID #: 1313
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`COURT SECURITY OFFICER: All rise.
`THE COURT: Be seated, please.
`All right. This is the time set for oral argument
`in regard to a pending motion to transfer under Section
`1404(a). This is in the AGIS Software Development versus
`Apple case. This is Civil Action 2:17-CV-516.
`Let me ask for announcements at this time. What
`says the Plaintiff, AGIS Software?
`MR. FABRICANT: Your Honor, Alfred Fabricant for
`the Plaintiff. Also with me, Peter Lambrianakos, Vincent
`Rubino, and Sam Baxter. The Plaintiff is ready to proceed,
`Your Honor.
`THE COURT: All right. Thank you. What's the
`announcement for Apple?
`MR. GILLAM: Your Honor, for Apple, Gil Gillam,
`Michael Stadnick, Kerri-Ann Limbeek, and with Apple is Ryan
`Moran, and we're ready to proceed, Your Honor.
`THE COURT: Okay. Thank you.
`Well, I've reviewed the briefing counsel. This is
`Apple's motion. So I'll hear argument from Apple first from
`the podium.
`MR. STADNICK: Good morning, Your Honor. May it
`please the Court.
`THE COURT: Good morning.
`MR. STADNICK: Mike Stadnick for Apple. I'd like
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`Case 2:17-cv-00516-JRG Document 74 Filed 04/04/18 Page 4 of 61 PageID #: 1314
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`to touch just very briefly on some procedural context before
`I address the relevant transfer factors.
`AGIS Software, the Plaintiff in this case, filed
`this infringement action in June of last year. Three weeks
`before filing this suit, AGIS Software didn't even exist.
`The patents-in-suit, however, did, at least four out of five
`of them, and they were owned at the time by a company called
`AGIS, Inc.
`AGIS, Inc., is a Florida company. It's been a
`Florida company for over 10 years, incorporated there,
`headquartered there. Its chief employees, including its
`executives, are located there. And it, in fact, chose to
`file patent infringement litigation on related patents on
`similar products in that venue when it first started
`enforcing its patents a few years ago in 2014.
`In June of this year, when AGIS decided to set its
`sights on Apple, there were two places where it clearly
`would have been convenient for at least one of the
`Defendants to proceed with lit -- excuse me, the parties to
`proceed with litigation. One was obviously Southern
`California. That is AGIS's backyard, again, the site of its
`headquarters and the place where it had originally chosen to
`pursue similar patent litigation.
`As it turns out, the litigation that AGIS had filed
`in Florida against a company called Life360 went poorly for
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`Case 2:17-cv-00516-JRG Document 74 Filed 04/04/18 Page 5 of 61 PageID #: 1315
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`AGIS. They wound losing a jury verdict, which was affirmed
`on appeal, and they wound up having an award of attorney
`fees against them.
`Perhaps for that reason, when AGIS decided to
`pursue litigation against Apple, it decided not to proceed
`in the forum that objectively would have been more
`convenient for AGIS, which is Southern Florida.
`That brings us to the second forum that would have
`clearly been convenient for at least one of the litigants in
`this action, which is the Northern District of California
`where Apple is headquartered, where all the accused products
`in this case were designed and development, where the source
`code for these products resides, the documents related to
`the development of those products, and where the engineers
`and business people who are familiar with the issues in this
`case reside.
`Counsel, I'm happy to hear a brief overview, but --
`MR. STADNICK: Sure.
`THE COURT: -- I think the Court's better served by
`getting into the specific private and public convenience
`factors.
`MR. STADNICK: Absolutely, Your Honor. The point I
`was just trying to make is that AGIS had an opportunity if
`it was particularly interested in serving its own
`convenience to file this case in its backyard and chose not
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`Case 2:17-cv-00516-JRG Document 74 Filed 04/04/18 Page 6 of 61 PageID #: 1316
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`to, and I think that's relevant to any public and private
`convenience factors, as I'll discuss.
`I'll start then just to move things along -- next
`slide, please -- jump right into the sources of potentially
`relevant proof with respect first to this district and then
`to the Northern District of California.
`AGIS has alleged in its papers that it intends to
`rely on proof located in this district in support of its
`claims in this case, and in particular, it identifies three
`potential locations where such documents might be located,
`its Marshall office, a purported office in Austin, and the
`residence of a part-time consultant in Allen, Texas, and
`I'll touch on each of those briefly.
`Next slide.
`As for the Marshall office, while in a declaration
`from AGIS's CEO, he represents the documents have been moved
`to the Marshall office since it was founded in June of this
`year. It's unclear what those documents are or how they
`might be relevant to this case.
`Just moving back to a tiny bit of procedural
`context.
`When AGIS, Inc., decided to proceed with this
`litigation, they first incorporated AGIS -- AGIS Software,
`which is the patentee in this case, on June 1st of 2017,
`they rented an office across the street here in Marshall
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`Case 2:17-cv-00516-JRG Document 74 Filed 04/04/18 Page 7 of 61 PageID #: 1317
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`on -- just two weeks later on June 15th, they transferred
`the patents to the new entity on June 20th, and filed suit
`on the next day. So all that took place within three weeks
`of filing this case.
`In its papers, its briefing and its supporting
`papers, AGIS doesn't identify with any particular --
`particularity any specific business activities that take
`place in the Marshall office. They don't identify any AGIS
`employees who work there, and they certainly don't identify
`any specific documents that are there or explain how they
`relate to this case.
`Moving on to the -- the Austin office that's
`recited in the briefing. There's a little -- a little
`discrepancy in the proof as to whether there is, in fact, an
`AGIS office in Austin.
`In the briefing papers, AGIS says it has
`maintained an office in Austin since 2005. The documents we
`obtained in discovery, including sworn deposition testimony
`from the earlier Florida case, indicate that at least as
`early 2014, AGIS had only two offices, one in Kansas and one
`in Florida.
`So it's unclear what this AGIS office is. Perhaps
`based upon what AGIS has represented in its papers, the AGIS
`office is really the home of one of its part-time employees.
`He's an individual named Robert Sietsema. And he's really a
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`Case 2:17-cv-00516-JRG Document 74 Filed 04/04/18 Page 8 of 61 PageID #: 1318
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`part-time employee, because the documents that were produced
`indicate AGIS has paid him about 4,000 or $5,000.00 a year
`for the past several years.
`So, again, it's unclear, to the extent they're
`relying on the -- the home residence of this one part-time
`employee, why that would weigh in favor of maintaining venue
`here and why his documents are relevant to this case in any
`way.
`
`Moving on to the third and final location that AGIS
`cites as being convenient with respect to a source of proof
`in this district, the personal residence of a part-time
`consultant named Allen Armstrong. It's unclear that
`Mr. Armstrong would have any relevant documents because in
`the initial disclosures and other discovery responses, AGIS
`has indicated that his involvement as an employee here -- a
`consultant with AGIS was respect to -- his own -- his own
`software products, commercial products, and there's been no
`explanation as to how that information -- those products are
`relevant in any way to this case. In fact, AGIS has
`represented that it's not intending to rely on its own
`products as having practiced the patents-in-suit.
`So that's where we are on the evidence that AGIS
`has put forward as far as sources of proof that are
`convenient to this district.
`Jumping to the Northern District and Apple's
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`Case 2:17-cv-00516-JRG Document 74 Filed 04/04/18 Page 9 of 61 PageID #: 1319
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`proof --
`THE COURT: Before we do that let me ask this
`question. Am I correct that Apple has already produced
`source code in this case?
`MR. STADNICK: That is correct.
`THE COURT: And that was produced for inspection in
`New York?
`MR. STADNICK: That is correct.
`THE COURT: Tell me why that was produced in New
`York as opposed to Northern California.
`MR. STADNICK: I think it was --
`THE COURT: Was it for your convenience, their
`convenience? How did that come about?
`MR. STADNICK: I would have to look into that
`before, you know, giving Your Honor a definitive answer, but
`my belief is it's because it was for the convenience of
`having attorneys present to monitor the source code
`inspection.
`THE COURT: Now, clearly, based on what we've just
`said, it was produced there. I don't know if it's stored
`there or if it was transferred electronically and then
`produced or if it was transferred for security reasons
`through some non-electronic means.
`I assume that the source code is maintained in
`Northern California, or is it maintained in New York, or is
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`it maintained in some third location and taken to New York
`for inspection?
`MR. STADNICK: The source code is maintained -- the
`main source code base is in Northern California. I believe
`for purposes of convenience for the litigants and the party,
`for the purposes of the inspection, the relevant code was
`transferred to a stand-alone computer which was then
`transported to New York for the -- for the purposes of the
`inspection.
`THE COURT: Okay. Go ahead with your -- your
`continuing argument.
`MR. STADNICK: Moving on to the location of sources
`of proof convenient to the Northern District of California.
`We submitted a declaration from Michael Jaynes, a
`witness from Apple's Northern California office, and he
`identifies with particularity specific documents that are
`located in California and in California rather than Texas.
`That would clearly be relevant to the patent
`infringement litigation, including technical documents about
`the accused features of the accused products, sales and
`financial documents relevant to damages, marketing
`information also particularly -- potentially relevant to
`damages and likewise licensing information.
`He verified that all of those documents are stored
`either on servers or stand-alone computers in California and
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`that none of that information is stored in Eastern Texas or
`for that matter in Austin.
`THE COURT: And I assume this material is all
`digitized, and unlike an earlier time when this factor may
`have had more real-world relevance, there are not hard
`copies in some huge warehouse somewhere but are digitized
`information that can be moved about conveniently and with
`little or no cost or expense.
`MR. STADNICK: I believe that the vast majority of
`the information is going to be digitized and located if not
`on a server then on a stand-alone computer for which it can
`be copied or mailed.
`That said, as Your Honor has recognized, the Fifth
`Circuit still counts the location of physical evidence and
`documents as a relevant factor, despite the developing
`technology.
`And I think one reason that that might make sense,
`particularly in a case like this, is it tends to show, at
`least circumstantially, kind of where the real crux of the
`dispute is.
`The Federal Circuit has noted that in patent
`infringement cases like this one, the vast majority of
`relevant documents or relevant proof comes from the
`patentee -- excuse me, from the Defendant, and for that
`reason, the -- you know, the factor is still to be
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`Case 2:17-cv-00516-JRG Document 74 Filed 04/04/18 Page 12 of 61 PageID #: 1322
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`considered and still weighed in favor of transfer.
`THE COURT: Of course, Apple has servers in lots of
`places, right?
`MR. STADNICK: This is true. But not servers that
`store these particular documents.
`THE COURT: Well --
`MR. STADNICK: So I'll move on unless Your Honor --
`THE COURT: No, go ahead.
`MR. STADNICK: Okay. I'll move on to the -- the
`proof as to witnesses, third-party or party, willing or
`unwilling that are located in -- that are as parties'
`positions as being convenient to Texas or convenient to
`California starting --
`THE COURT: There's some talk in the briefing about
`you may have former employees, and if you do have former
`employees and if they are relevant witnesses, then you
`assume that they're still going to be in Northern
`California.
`That looks to me, at least as to that component of
`this, looks like it's speculation upon speculation, and I
`assume you don't really disagree with that.
`MR. STADNICK: It's certainly not the crux of our
`argument, and I wasn't planning on pushing on that aspect of
`the potential witnesses here today.
`As opposed to AGIS, however, Apple has identified a
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`Case 2:17-cv-00516-JRG Document 74 Filed 04/04/18 Page 13 of 61 PageID #: 1323
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`number of party witnesses with particularity and specificity
`who are actually located in the transferee -- the proposed
`transferee district.
`THE COURT: And when you say party witnesses, you
`mean people that are employed by one party or the other?
`MR. STADNICK: Correctly employed by Apple, yes.
`By contrast, for example, AGIS hasn't identified a
`single employee who is actually a resident in the Eastern
`District of Texas. I think the closest they come is one
`part-time consultant and a paid technical expert.
`THE COURT: And you recognize, I think, that
`there's significant difference between nonparty witnesses
`and party witnesses. Somebody that works for Apple is told
`Monday, get on a plane and go to Texas. They'd either be
`working for them in California or be working for them in --
`making that trip or doing whatever, their salary continues,
`they continue their employment. A third party that has no
`relation, that's a whole different situation. You recognize
`that?
`
`MR. STADNICK: That is certainly true. I would
`add, however, Your Honor, that Courts have recognized,
`including in the Genentech case, that when you're comparing
`party witnesses, their convenience still has some relevance
`in a situation where one party has chosen to litigate in a
`forum that by definition is going to be inconvenient to
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`their own witnesses than the convenience of the other party
`witnesses has more weight, and that's what we have here.
`There are, again, no party witnesses resident in
`Texas, and to the extent there are relevant party witnesses
`that have been identified by AGIS, their CEO, their
`president, and, you know, the second co-inventor, all of
`them live hundreds of miles, in some cases hundreds and
`hundreds of miles from the Eastern District of Texas.
`So regardless of whether this case proceeds here or
`proceeds in Northern California, those particular witnesses,
`and everybody agrees they're relevant witnesses, are going
`to have to travel for at least half a day. For as long as
`they stay at the trial, they're going to be away from home,
`and any incremental time or expense in traveling to
`California for those particular witnesses seems minimal and
`should be afforded very little weight.
`THE COURT: And so I think it's clear from the
`briefing, all of those people or the vast majority of those
`people related to the Plaintiff, let's just say that it's
`closer for them to come to Texas than it is for them to go
`to California, you agree with that? I mean, we're talking
`about people that are in Florida and Kansas and other parts
`of Texas and so forth and so on.
`MR. STADNICK: That is true, Your Honor. I do
`think, again, though, that Courts have recognized when a
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`party choses to commence litigation in a forum that's going
`to be inconvenient for it either way, that that
`consideration is -- is afforded less weight.
`THE COURT: So are you telling me that any time a
`Plaintiff files suit outside of its home district that it
`has consciously elected an inconvenient forum and put itself
`behind the eight ball with regard to these public and
`private factors? It sounds like that's what you're telling
`me.
`
`MR. STADNICK: I'm telling you it is a factor to be
`weighed in assessing, for example, the credibility of
`assertions of convenience and whatever non-home district the
`case has been filed in.
`And, obviously, the facts don't go in this
`direction here, which you could imagine a situation where
`there's a Plaintiff who has operations in various different
`places and could make a credible argument that litigating in
`multiple different venues would be convenient for the
`Plaintiff.
`I just don't think that those are the facts here,
`because, again, the -- the center of operations for AGIS has
`been and always been -- and has always been in South
`Florida, and their demonstration of any connection, whether
`it's witnesses or documents or anything else to this
`district, is extremely thin.
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`THE COURT: And at least from the Plaintiff's
`standpoint, you don't disagree that the distance from
`Florida to Texas is significantly less than the distance
`from Florida to the West Coast, to California -- to Northern
`California, and I assume you don't disagree that the cost to
`reside in hotels and purchase meals and do all the things
`that are incumbent on someone traveling would be
`significantly less in East Texas than it would be in the Bay
`Area?
`
`MR. STADNICK: I do agree that for witnesses who
`are located in Florida, the geographical distance between
`this district and the Northern District of California is
`significantly less to travel here.
`Whether as a practical matter, given the realities
`of travel arrangements, the actual travel time is going to
`be significantly more to get to California, I'm not sure.
`But, yeah, I do have to agree with Your Honor's statement
`the way that you framed.
`THE COURT: Well, I'm going to California in a
`month, and it's about three hours by plane nonstop from
`Dallas. So -- and I grew up in Florida, and I know what the
`travel time is from Texas to Florida. It's about three
`hours that way, too. So it's really about halfway here as
`opposed to going all the way to the West Coast in today's
`travel terms and with airlines and so forth and so on.
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`Go ahead and give me the rest of your argument on
`this factor.
`MR. STADNICK: Turning to -- well, just briefly
`back to up Apple's witnesses.
`We've identified -- identified three technical
`witnesses, and these aren't just people who happen to have
`some knowledge about the accused products. These are the
`people who are primarily responsible for designing and
`developing the products.
`One was sort of the general overseer of the
`project. These -- these accused products are handheld
`communication devices, phones and watches and iPads and the
`like. And the relevant functionality for the purpose of
`this case are map-based communications, applications that
`allow groups of people to view each other's location on a
`map and send messages and communications to each other by
`pressing icons and that sort of thing.
`That technology was all developed under the
`oversight of Raghu Pai in California. We've identified two
`other engineers who worked for him because they were more
`low-level employees who were more directly involved in the
`actual implementation, the coding, et cetera, the
`architecture of this product from both the -- the client's
`side and the server side because of the software that runs
`these features. Part of it is located on the handheld
`
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`Case 2:17-cv-00516-JRG Document 74 Filed 04/04/18 Page 18 of 61 PageID #: 1328
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`devices. Part of it is located on servers operated by
`Apple.
`
`So all those people have relevant information to
`the infringement case. They're all located in California.
`We didn't just pick some engineers who happen to have
`knowledge of the products. These are the people who are
`primarily responsible. They're going to be identified as
`the 30(b)(6) witnesses for Apple in the operation of the
`accused products. And we expect them, to the extent this
`case goes to trial and all the issues remain in the trial,
`to be actual trial witnesses.
`The remaining three individuals identified by Apple
`have information related to the potential damages case.
`They, too, are located in California. To the extent these
`issues remain relevant to the damages analysis as we get to
`trial, we expect them or folks who work for or with them in
`California to be Apple's witnesses on those issues if -- if
`they come up at trial.
`So that's Apple's proof on party witnesses.
`Just moving briefly to third-party witnesses.
`THE COURT: Before -- before you do that, let me
`ask this question. You've designated or identified seven
`potential party witnesses, and you've explained that they
`fall basically three in the -- on the infringement side of
`the case and four on the damages side of the case.
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`Case 2:17-cv-00516-JRG Document 74 Filed 04/04/18 Page 19 of 61 PageID #: 1329
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`How should the Court properly view that kind of
`designation knowing that when the case actually gets to
`trial, in all likelihood, I'm going to have a live -- one
`live witness on the liability side, maybe some short
`deposition clips of the other two, but you're going to have
`one main liability witness from Apple and one main damages
`witness from Apple, maybe two or three short deposition
`clips on the damages side, too.
`But as a practical matter of who actually has to
`come here and be here and participate in trial, your seven
`in all likelihood is probably boiled down to two. Should I
`just say no, all seven have got to count, and -- and if
`instead of designating three engineers on the liability
`side, you've chosen to designate and identify eight
`engineers on the liability side, I still have to count each
`one? Is it -- is it a numbers' game, or how much does the
`Court really -- how -- how solid of ground is the Court
`really on to look through the -- the paper designations and
`realize in the real world, trying cases, in all likelihood,
`we're probably going to have one live person on both the
`liability issue and the damages issue, and whether it's 7 or
`whether it's 17 or whether it's 2, the real convenience or
`inconvenience on that party in that regard is probably the
`same?
`
`Should I just -- is this another one like where --
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`Case 2:17-cv-00516-JRG Document 74 Filed 04/04/18 Page 20 of 61 PageID #: 1330
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`where the documents are located where I have to look to the
`form and ignore the substance, or is this one where I can
`really look to the underlying substance and distill it
`down to what I know and you know and everybody that knows
`how to try a lawsuit knows that's probably what it's going
`to be?
`
`MR. STADNICK: I think it's the latter, Your Honor,
`and I don't disagree with you that in all likelihood, the
`way these cases work, if we get to trial, there's going to
`be one or maybe two technical fact witnesses and probably
`one fact person on the damages side of things.
`And it wasn't our intent to try to represent to you
`or get you to embrace the belief that we intend to call all
`of these witnesses at trial, because I, like you, don't see
`that happening. I think it's really a probability game, and
`it's really a question of weight, and, you know, obviously,
`there's a lot of speculation at the time in a litigation
`where these transfer motions have to be entertained about
`what the trial is going to look like.
`What we were trying to convey with the way we
`presented our proof is some of these people are going to
`come, and even if it's only two --
`THE COURT: Certainly it is -- it is a factor.
`MR. STADNICK: It is a factor.
`THE COURT: But it may not be to the degree that it
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`Case 2:17-cv-00516-JRG Document 74 Filed 04/04/18 Page 21 of 61 PageID #: 1331
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`would appear on its face.
`MR. STADNICK: Yes. It's certainly not let's add
`up the number of witnesses Apple identified and the number
`of witnesses AGIS identified and put them on a scale. I do
`think, though, that the potential significance of these
`witnesses should be weighed more than the potential
`significance of the AGIS witnesses that are alleged to be in
`or close to this district as opposed to the AGIS witnesses
`who are located elsewhere.
`THE COURT: Well, if you've got a reason for that,
`I'd be happy to hear it, other than I like my guys more than
`I like their guys.
`MR. STADNICK: So I will go through the three guys
`that they identify as being potentially close to this
`district, and, again, I'm focusing now on what you would
`consider party witnesses, and there are three. They're
`located at the bottom of this table.
`David Sietsema, who we touched on briefly already.
`He's the part-time employee who works in Austin. He has
`been identified as having information relevant to AGIS's
`IP licenses and contracts. You could see that being
`potentially relevant. However, we've got documents from
`Mr. Sietsema so far. We've been through them. There's no
`IP licenses in there. There's nothing relevant to licensing
`or damages or anything else that we can divine that might
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`Case 2:17-cv-00516-JRG Document 74 Filed 04/04/18 Page 22 of 61 PageID #: 1332
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`come up in this case.
`THE COURT: And that really kind of cuts to the
`heart of the problem the Court has when you say that we've
`been able to divine.
`The problem is we're at the beginning of the case,
`and we're trying to project what a real try at the end of
`the case is going to look like, and not your fault, my
`fault, or the Plaintiff's fault, we all have to divine or
`guess or speculate to a large degree on -- from a position
`where we don't know now what we'll know then, and yet these
`decisions appellate courts tell us need to be pushed toward
`the beginning of the process for purposes of avoiding waste
`and efficiency and so forth and so on.
`And I don't know how we solve that problem unless
`somebody's got a crystal ball that can tell the future. And
`if they do, they're not going to be practicing law for a
`living, so --
`MR. STADNICK: I think the answer there again, Your
`Honor, is we can't solve the problem, but we can assess
`probabilities.
`And the point I was trying to make in comparing the
`level of description provided by Apple with concerns to its
`party witnesses and the level of description that AGIS has
`provided with folks like Mr. Sietsema is it's pretty clear
`that an Apple witness in Northern California is going to
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`Case 2:17-cv-00516-JRG Document 74 Filed 04/04/18 Page 23 of 61 PageID #: 1333
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`have detailed knowledge of the operation of these products
`and how they were developed, and that person has clear
`relevance to the case, the issues of infringement, et
`cetera.
`Whereas Mr. Sietsema, who supposedly has
`knowledge -- knowledge related to IP licensing, seems less
`relevant because in discovery in this case, AGIS has
`indicated to us in response to an interrogatory that it has
`no IP licenses.
`So if you take that information at face value, then
`there's really nothing for this individual to testify about.
`THE COURT: All right. You're not suggesting to me
`that we should have inverted burdens here where if it's a
`Defendant's witness, they should be presumed relevant, and
`if it's a Plaintiff's witness, they should be presumed
`irrelevant until they can prove that they do have some
`relevance?
`MR. STADNICK: Not at all. We concede that many --
`or at least a few of AGIS's witnesses are clearly relevant.
`Mr. Beyer is the CEO. He's a named inventor on the
`patent-in-suit. Mr. Blackwell is the president. He's
`located in Kansas. And Mr. Rice is the other named
`Defendant. Clearly, they're relevant. The problem with
`those witnesses, they're located hundreds and hundreds and
`hundreds of miles from this district.
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`Case 2:17-cv-00516-JRG Document 74 Filed 04/04/18 Page 24 of 61 PageID #: 1334
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`THE COURT: Okay.
`MR. STADNICK: That's what this chart is intended
`to show. The folks that are located in this district
`have -- I'm not going to say there's no universe in which
`they might have some testimony that could be relevant at
`trial. I'm just saying from the papers, the information
`that's been presented so far, we can't figure out what that
`would be.
`THE COURT: I suspect I may hear about that from
`the Plaintiff in a little bit.
`MR. STADNICK: I suspect you might. And I'd be
`happy to hear it, too, and -- and try and respond to it.
`So that's my comments on party witnesses.
`Just briefly moving on to third-party witnesses,
`because as Your Honor mentioned, they do tend to carry more
`weight in this analysis.
`That's a bit too far. Next slide.
`One witness that Apple's identified in its briefing
`is a prosecuting attorney for the patents-in-suit. We've
`gotten some pushback from AGIS, and it doesn't surprise me
`to hear it, that, well, you know, prosecuting attorneys are
`often thrown around as potential witnesses in patent cases.
`It's actually really rare for them to show up at trial,
`offer their testimony, and be meaningful as to some sort of
`inequitable conduct allegation.
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