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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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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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`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 ZTE (USA), INC. AND ZTE (TX), INC.’S
`MOTION TO SUPPLEMENT THE RECORD IN SUPPORT OF ITS MOTION TO
`DISMISS FOR IMPROPER VENUE, OR IN THE ALTERNATIVE, TO TRANSFER
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`Case 2:17-cv-00517-JRG Document 83 Filed 09/24/18 Page 2 of 12 PageID #: 1124
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`TABLE OF CONTENTS
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`I. BACKGROUND .................................................................................................................... 2
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`II. 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. CONCLUSION ...................................................................................................................... 8
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`Case 2:17-cv-00517-JRG Document 83 Filed 09/24/18 Page 3 of 12 PageID #: 1125
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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) ....................................................................3
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`Vertical Comput. Sys., Inc. v. ZTE Elecs. MobileComm U.S.A., Inc.,
`No. 2:10-cv-490-JRG, 2013 WL 2241947 (E.D. Tex. May 21, 2013) ......................................8
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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-00517-JRG Document 83 Filed 09/24/18 Page 4 of 12 PageID #: 1126
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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 ZTE (USA), Inc. and ZTE (TX), Inc.’s (‟ZTA” and
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`‟ZTX,” respectively and collectively, ‟ZTE”) Motion to Supplement the Record in Support of its
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`Pending Motion to Dismiss for Improper Venue or, in the alternative, Motion to Transfer to the
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`Northern District of California (the ‟Motion to Transfer Venue”) (517 Dkt. 38).
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`I.
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`BACKGROUND
`ZTE’s motion to supplement the record on its Motion to Transfer Venue should be denied
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`because ZTE 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 ZTE itself, only to be stonewalled by ZTE,
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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 ZTE’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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`ZTE 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). (517 Dkt. 81 at 4). To be clear, AGIS has not, on
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`its own, acknowledged that Google possesses the relevant information or that Google witnesses
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`are knowledgeable of the relevant facts. AGIS simply has had no choice but to serve Google with
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`a document and deposition subpoena in the hope of obtaining what ZTE has refused to provide.
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`2
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`Case 2:17-cv-00517-JRG Document 83 Filed 09/24/18 Page 5 of 12 PageID #: 1127
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`ZTE 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 ZTE perceives will be a more favorable forum.
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`The thrust of ZTE’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 that were submitted with ZTE’s motion months ago
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`(Dkt. 51-4, 5). Most telling is the fact that in response to AGIS’s subpoenas, Google objected and
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`refused to produce the relevant information on the grounds that the information is or may be in
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`ZTE’s possession. See Google LLC’s Objections and Responses to Plaintiff AGIS Software
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`Development, LLC’s Deposition and Document Subpoenas (hereinafter, ‟Google’s Objections
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`and Responses”), a copy of which is annexed as Exhibit B.1 AGIS is thus caught in the middle,
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`between ZTE and Google, neither of whom is willing to produce information about the accused
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`applications. To this day, ZTE has not identified any documents or witnesses in the proposed
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`transferee district that are central to the outcome of this case, that so dramatically tip the balance
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`of the public and private interest factors as to justify transfer of venue at this time.2 Accordingly,
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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.
`2 The only evidence ZTE 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 Andrew Oplinger and William Luh. (Dkt. 51-4, 5). This Court has already
`considered virtually identical declarations from these same witnesses in connection with Huawei
`Device (Dongguan) Co., Ltd.’s (‟Huawei”) Motion to Transfer Venue (513 Dkt. 36-4, 5) and
`found, "[n]otably, Huawei does not identify with any particularity any specific Google
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`3
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`Case 2:17-cv-00517-JRG Document 83 Filed 09/24/18 Page 6 of 12 PageID #: 1128
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`both ZTE’s motion to supplement the record and its underlying motion to transfer venue should be
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`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 ZTE’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 ZTE 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
`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, ZTE’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
`ZTE’s motion should also be denied because even if the ZTE was permitted to add the
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`subpoena to Google to the record on this motion, ZTE 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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`employees that they anticipating 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-00517-JRG Document 83 Filed 09/24/18 Page 7 of 12 PageID #: 1129
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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 ZTE, 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 . . .” (517 Dkt. 28 at 21), not from non-parties such as Google.
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`In this case, the ZTE Defendants’ documents and knowledgeable witnesses are located in
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`several places, not just in the Northern District of California. ZTE states that ‟most, if not all, of
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`Defendant’s witnesses and physical evidence relating to the relationship between ZTX and ZTE
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`Corporation . . . [and] documents relevant to the research agreements between ZTX and ZTE
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`Corporation” are located in Milpitas, California. Id. at 20. But ZTE also asserts that technical
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`documents and agreements are located at ZTX’s San Diego, California office. Id. In ZTA’s
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`Motion to Transfer Venue, ZTA refers to the location of ZTX’s documents located in California,
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`without specifying a location. (517 Dkt. 38 at 22-23). According to Jeff Yee, the Vice President of
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`ZTA, ‟all ZTA and ZTC technical personnel and documents relating to the design, operating,
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`testing, and certification of ZTA smartphone products, and any technical integration of the
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`Proprietary Android Applications into ZTA’s devices, are all located in China.” (517 Dkt. 38-4 at
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`¶ 8).
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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. ZTE 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 517 Dkt. 28 at 23. This
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`5
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`Case 2:17-cv-00517-JRG Document 83 Filed 09/24/18 Page 8 of 12 PageID #: 1130
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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). ZTE 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 ‟it is unclear how this is relevant to his
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`matter accusing infringement by Defendants’ products.” (517 Dkt. 51 at 10). However, this
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`Court has stated in both the Huawei and Apple co-pending consolidated cases that ‟the relevance
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`of Mr. Armstrong’s documentary evidence lies in Apple’s Answer, wherein it asserts a marking
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`defense, arguing that damages are barred as a result of failure to mark by AGIS.” 516 Dkt. 76 at 5;
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`513 Dkt. 140 at 9.
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`There is nothing in the record on this motion, i.e. in the declarations submitted by
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`Google employees Messrs. Luh and Oplinger, that specifies the documents Google would
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`produce or testimony that would be offered by specific Google employees located only in the
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`Northern District of California.3 See 517 Dkt. 51-4, 5. This lack of certainty as to the specific
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`evidence Google possesses and where it is located further weighs against granting ZTE’s motion.
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`In a related case before this Court, Apple argued in favor of transfer based on the presence of 13
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`non-party witnesses located in the Northern District of California who were the inventors of
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`patents relied upon by Apple in its invalidity contentions. See AGIS Software Development LLC v.
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`Apple Inc., Case No. 2:17-cv-00516-JRG (E.D. Tex.), Dkt. 76 at 12. This Court found that
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`‟Apple’s admission at argument that ‘one or two might’ testify at trial, that ‘a couple of these
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`3 In ZTE's initial disclosures updated September 11, 2018, ZTE continues to list ‟Google
`Inc. and employees thereof,” yet stating ‟[i]t is unknown at this time which employees or former
`employees of Google, if any, will be needed to provide relevant facts and evidence.” Defendants
`ZTE (USA), Inc. and ZTE (TX), Inc.’s First Amended Initial and Additional Disclosures at 9, a
`copy of which is annexed as Exhibit C. AGIS is entitled to seek discovery from witnesses listed
`in ZTE’s initial disclosures, especially in light of the lack of relevant discovery from ZTE 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-00517-JRG Document 83 Filed 09/24/18 Page 9 of 12 PageID #: 1131
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`
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`individuals might be relevant at trial,’ and Apple’s representation that their investigation into the
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`relevance of these individuals is ongoing and ‘depending on how that goes, there is, you know, at
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`least a good possibility that [the location of these individuals] should be afforded some weight.”
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`Id. Ultimately however, the Court found that lack of certainty as to the potential evidence from
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`these non-party witnesses weighed against transfer. Id. The same result should obtain here.
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`ZTE 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 517 Dkt. 46
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`at 2 (‟Even if Google were to possess relevant documents and employ individuals who have
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`knowledge about the Accused Products and functionality, Defendants have not demonstrated how
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`any specific Google witness or document would necessitate transfer to the Northern District of
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`California.”) (emphasis added). In fact, AGIS represented that it would seek the discovery of
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`Google if necessary and following the limited discovery regarding the relevant functionality and
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`features of the applications. At the Evidentiary Hearing held on August 8, 2018, AGIS
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`represented that ‟we don’t think we need it at this point in time, but there may be, and we may
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`take discovery of Google with respect to any proprietary Google application material that’s not
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`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 ZTE 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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`7
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`Case 2:17-cv-00517-JRG Document 83 Filed 09/24/18 Page 10 of 12 PageID #: 1132
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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. ZTE 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 of
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`the filing of the Complaint, AGIS believed the relevant source code was publicly available or
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`within the possession of ZTE 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 ZTE has the relevant information about
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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 ZTE. See Exhibit B at ¶7. The fact that more than a year
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`after the case was filed, AGIS has had to seek that information from Google as a result of ZTE’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 ZTE’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. In the alternative, should the Court grant ZTE’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
`
` /s/ Alfred R. Fabricant
`Alfred R. Fabricant
`NY Bar No. 2219392
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`8
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`Case 2:17-cv-00517-JRG Document 83 Filed 09/24/18 Page 11 of 12 PageID #: 1133
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`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
`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
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`Telephone: (903) 923-9000
`Facsimile: (903) 923-9099
`
`ATTORNEYS FOR PLAINTIFF, AGIS
`SOFTWARE DEVELOPMENT LLC
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`9
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`Case 2:17-cv-00517-JRG Document 83 Filed 09/24/18 Page 12 of 12 PageID #: 1134
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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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`
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`/s/ Alfred R. Fabricant
`Alfred R. Fabricant
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`
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`63164431 v1
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