Case 2:21-cv-00072-JRG-RSP Document 127-1 Filed 08/18/21 Page 1 of 7 PageID #: 3043
`Case 2:21-cv-00072-JRG-RSP Document 127-1 Filed 08/18/21 Page 1 of 7 PagelD #: 3043
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`EXHIBIT A
`EXHIBIT A
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`August 18, 2021
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`The Honorable Roy S. Payne
`U.S. Magistrate Judge
`U.S. District Court for the Eastern District of Texas
`Sam B. Hall, Jr. Federal Building and
`United States Courthouse
`100 East Houston Street
`Marshall, Texas 75670
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`Re:
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`AGIS Software Development LLC v. WhatsApp, Inc.,
`Case No 2:21-cv-00029-JRG-RSP (E.D. Tex.)
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`Case 2:21-cv-00072-JRG-RSP Document 127-1 Filed 08/18/21 Page 2 of 7 PageID #: 3044
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`Your Honor,
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`In accordance with the Court’s Order (Dkt. 121), Plaintiff AGIS Software Development LLC
`(“AGIS”) submits its reply to Defendant WhatsApp LLC’s (“WhatsApp”) responses and
`objections to AGIS’s narrowed venue discovery requests.
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`WhatsApp improperly attempts to limit the scope of discovery to the arguments advanced in its
`motion to dismiss (Dkt. 63). But AGIS is entitled to all information and materials that are
`relevant to the activities and locations “of WhatsApp” in the Eastern District of Texas, and
`WhatsApp should have already produced these discoverables as responsive to the requirements
`of the Court’s Discovery Order which requires the production of “all documents, electronically
`stored information. . .that are relevant to the pleaded claims or defenses involved in this action.
`WhatsApp does not dispute that venue is part of its defense in this case. In support of its motion
`to dismiss, WhatsApp has produced selective, pre-expansion discovery on land plats that exclude
`the current geographical bounds of the Like Way Data Center. However, at the time of the filing
`of the complaint in this action, the Like Way Data Center physically extended into the Eastern
`District of Texas (including the building, ingress/egress routes, and parking lots).
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`Case 2:21-cv-00072-JRG-RSP Document 127-1 Filed 08/18/21 Page 3 of 7 PageID #: 3045
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`The Honorable Roy S. Payne
`U.S. Magistrate Judge
`August 18, 2021
`Page 2
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`See Dkt. 82-11 and 82-13 (Sources: State of Texas, Tarrant County Appraisal District and State
`of Texas, Department of Transportation).
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`WhatsApp’s attempt to limit venue discovery raises concern. During the parties’ conference
`call, counsel for WhatsApp stated that WhatsApp need only produce information regarding
`whether WhatsApp “holds itself out” to have a presence in the District. This misinterpretation of
`the law underscores the need for a full factual inquiry, rather than a selective production of
`documents that do not accurately represent the activities and locations “of WhatsApp.” During
`the conference call with the Court, counsel for WhatsApp stated that WhatsApp had identified at
`least fifty WhatsApp employees residing or working in the Eastern District of Texas. This
`statement confirmed that WhatsApp has a significant presence in the District and AGIS should
`be given the opportunity to discover whether any of the individuals contravene the blanket
`statements made by WhatsApp under its misinterpretation of the law.
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`Places of WhatsApp (Interrogatory No 10 and Document Request No. 1):
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`AGIS seeks all discoverable information, documents, materials, and one or more witnesses to
`testify regarding “all physical property, offices, facilities, coworking spaces, warehouses,
`tangible and intangible property, equipment, servers, data centers, and other physical locations
`located in the EDTX and the counties adjacent to the EDTX, that are leased, owned, or otherwise
`used by WhatsApp, any affiliate of WhatsApp, or any employees, consultants, or any personnel
`of WhatsApp.” Each portion of this request is relevant to the venue analysis, i.e., the
`determination of whether WhatsApp has a regularly established place of business in the Eastern
`District of Texas. On a more granular level, each portion of this request is relevant to whether
`there is a physical place in the District of WhatsApp and whether that place is a regular and
`established place of business.
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`WhatsApp’s carefully worded response fails to address the portion of AGIS’s request concerning
`whether WhatsApp, its affiliates, or its employees “use” any other “physical property, offices,
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`FABRICANT LLP | FABRICANTLLP.COM | 411 THEODORE FREMD AVE., SUITE 206 SOUTH, RYE, NY 10580 | 212.257.5797
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`Case 2:21-cv-00072-JRG-RSP Document 127-1 Filed 08/18/21 Page 4 of 7 PageID #: 3046
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`
`
`The Honorable Roy S. Payne
`U.S. Magistrate Judge
`August 18, 2021
`Page 3
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`facilities, coworking spaces, warehouses, tangible and intangible property, equipment, servers,
`data centers, and other physical locations” located within or adjacent to the Eastern District of
`Texas. In doing so, WhatsApp does not object to or otherwise dispute that this request is
`appropriate.
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`WhatsApp’s primary objection focuses on whether it should be required to produce discovery on
`employee-owned properties. This is a mischaracterization of Plaintiff’s request. As to
`employees, consultants, and WhatsApp affiliates, Plaintiff seeks discovery on any “physical
`property, offices, facilities, coworking spaces, warehouses, tangible and intangible property,
`equipment, servers, data centers, and other physical locations” for which WhatsApp reimburses,
`pays, or otherwise provides remuneration for the “physical property, offices, facilities,
`coworking spaces, warehouses, tangible and intangible property, equipment, servers, data
`centers, and other physical locations.” To the extent WhatsApp provides any remuneration for
`the “physical property, offices, facilities, coworking spaces, warehouses, tangible and intangible
`property, equipment, servers, data centers, and other physical locations,” AGIS is entitled to the
`identity of the place(s), all agreements and terms related to the place(s), any documents relating
`to the place(s), and one or more testifying witnesses with knowledge of the place(s). Similarly,
`to the extent WhatsApp exerts any control over, conducts business from, has a hand in selecting,
`or conditions employment on an employee maintaining any “physical property, offices, facilities,
`coworking spaces, warehouses, tangible and intangible property, equipment, servers, data
`centers, and other physical locations,” AGIS is entitled to the identity of the place(s), all
`agreements and terms related to the place(s), any documents relating to the place(s), and one or
`more testifying witnesses with knowledge of the place(s). These requests fall squarely within the
`scope of the relevant requests and the legal analysis for venue under TC Heartland and In re
`Cray.
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`Further, WhatsApp questions whether it can provide discovery on equipment located at the Like
`Way Data Center or INAP Data Center. This information should be readily available to
`WhatsApp, especially considering that the Like Way Data Center is approximately six years old
`and WhatsApp claims it began migration of services from INAPP less than three years ago.
`WhatsApp has provided a blanket objection stating that its agreement ended with INAPP in 2018
`but, WhatsApp has provided no discovery on any migration or legacy services at the INAPP
`Data Center. Even more, WhatsApp’s response proposes limiting the discovery of the
`equipment WhatsApp uses in the Eastern District of Texas to equipment in only two locations.
`To be clear, AGIS’s discovery requests are not, and should not be, limited to the INAPP and
`Like Way Data Centers of WhatsApp. WhatsApp has articulated no valid objection or reason
`why it believes all venue discovery should be limited to these two places.
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`Finally, WhatsApp objects to discovery “dating back to 2017.” This date was proposed by
`WhatsApp and accepted by AGIS during the parties’ meet-and-confer teleconference on August
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`FABRICANT LLP | FABRICANTLLP.COM | 411 THEODORE FREMD AVE., SUITE 206 SOUTH, RYE, NY 10580 | 212.257.5797
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`Case 2:21-cv-00072-JRG-RSP Document 127-1 Filed 08/18/21 Page 5 of 7 PageID #: 3047
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`The Honorable Roy S. Payne
`U.S. Magistrate Judge
`August 18, 2021
`Page 4
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`11, 2021. 2017 is appropriate because venue is proper in the District, if a defendant had a
`regular and established place of business at the time the cause of action accrued, and the action
`was brought a reasonable time thereafter. See Welch Sci. Co. v. Human Eng’g Inst., Inc., 416
`F.2d 32 (7th Cir. 1969); Wi-LAN Inc. v. Lenovo (United States), Inc., 2017 WL 3194692 (S.D.
`Cal. July 27, 2017); ParkerVision, Inc. v. Apple Inc., C.A. No. 3:15-cv-01477 (M.D. Fla. March
`8, 2018). Of course, the statutory damages period for past damages is a sufficiently reasonable
`time to bring an action. Nevertheless, the scope of venue discovery should not exclude activities
`or agreements on the basis that such activities/agreements were also performed/effective prior to
`the filing date of the complaint or prior to the time the cause of action accrued. In a non-limiting
`example, if WhatsApp entered into an agreement to own, lease, or otherwise use a certain place
`prior to the filing of the complaint, or prior to the time the cause of action accrued, that
`agreement should not be excluded from production if the agreement was effective at the time of
`the filing of the complaint or the time the cause of action accrued. Similarly, WhatsApp’s
`activities and agreements after the filing of the complaint (i.e., to present) are discoverable
`because WhatsApp’s entrance into and departure from the District have probative value.
`WhatsApp has not provided a sufficient reason to exclude such discovery.
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`Agreements Related to Places of WhatsApp (Interrogatory No 11 and Document Request
`No. 2):
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`AGIS seeks “all agreements, leases, contracts, and any legal rights for all physical property,
`offices, facilities, coworking spaces, warehouses, tangible and intangible property, equipment,
`servers, data centers, other physical locations, communications services, utility services, and all
`vendor services located or performed in the EDTX and the counties adjacent to the EDTX.”
`Each portion of this request is relevant to the venue analysis, i.e., the determination of whether
`WhatsApp has a regularly established place of business in the Eastern District of Texas and
`whether there is a physical place in the District of WhatsApp.
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`As explained above, WhatsApp’s proposal to limit discovery to the INAPP facility alone is not
`sufficient because it restricts the scope of discovery to its own arguments and misinterpretation
`of the law. WhatsApp’s proposal is improper because the requested information is relevant and
`WhatsApp has not identified a sufficient reason as to why it would be too burdensome or
`disproportionate to the needs of the case.
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`Further, WhatsApp objects to the geographical scope of the request because “adjacent to the
`Eastern District of Texas” is “outside the Eastern District of Texas.” Again, this objection comes
`as a surprise because WhatsApp proposed, and AGIS accepted, this exact geographical scope
`during the parties’ meet-and-confer teleconference on August 11, 2021. This geographical scope
`is appropriate for at least two reasons. First, there remains an ongoing dispute as to the location
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`FABRICANT LLP | FABRICANTLLP.COM | 411 THEODORE FREMD AVE., SUITE 206 SOUTH, RYE, NY 10580 | 212.257.5797
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`Case 2:21-cv-00072-JRG-RSP Document 127-1 Filed 08/18/21 Page 6 of 7 PageID #: 3048
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`
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`The Honorable Roy S. Payne
`U.S. Magistrate Judge
`August 18, 2021
`Page 5
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`of the Like Way Data Center, which has one or more physical buildings, ingress/egress, parking
`space, and other physical property in the Eastern District of Texas. Because WhatsApp contends
`that the Like Way Data Center is in the adjacent county outside of the Eastern District of Texas,
`Plaintiff requests agreements for the adjacent counties so that relevant discovery on the Like
`Way Data Center is not improperly excluded. In addition, given that WhatsApp has maintained
`this position, despite overwhelming evidence that the Like Way Data Center extends into the
`Eastern District of Texas, it is reasonable for Plaintiff to request discovery on the adjacent
`counties to confirm that WhatsApp is not withholding relevant discovery on a similar basis.
`Because WhatsApp has not identified a sufficient reason to limit the discovery as proposed and
`because WhatsApp has failed to show how the request is irrelevant, unduly burdensome, or
`disproportionate to the needs of the case, the Court should require production of responsive
`discovery on the entire scope of the request.
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`WhatsApp Personnel and Agents (Interrogatory No. 12 and Document Request No. 3):
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`AGIS seeks all discoverable information, documents, materials, and one or more witnesses to
`testify regarding “employees, officers, directors, contractors, vendors, agents, and third parties of
`WhatsApp and its affiliate including, but not limited to, all Person(s) that reside or work in the
`EDTX and in the counties adjacent to the EDTX.” Each portion of this request is relevant to the
`venue analysis, i.e., the determination of whether WhatsApp has a regularly established place of
`business in the Eastern District of Texas and whether there is a physical place in the District of
`WhatsApp.
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`WhatsApp states that WhatsApp will limit the scope of discovery to remote employees in the
`District, and it will exclude employees, vendors, contractors, utility providers, and agents that
`reside in the Eastern District of Texas. AGIS is entitled to discover the requested categories of
`individuals and third parties and to probe whether they support its argument that WhatsApp has a
`regularly established place of business in the District. As stated above, WhatsApp has taken the
`position that it will only provide discovery based on the legal proposition that WhatsApp must
`“hold itself out” to have a regularly established place of business in the District. Respectfully,
`the Court should not permit WhatsApp to restrict the scope of venue discovery based on its
`flawed understanding of the law.
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`WhatsApp Personnel and Agents (Interrogatory No. 13 and Document Request No. 4):
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`AGIS seeks all discoverable information, documents, materials, and one or more witnesses to
`testify regarding “all agreements, contracts, and documents related to all business, services,
`transactions, and work delivered or performed for any customers, by or on behalf of WhatsApp
`and its affiliates, in the EDTX and in the counties adjacent to the EDTX.” Each portion of this
`request is relevant to the venue analysis, i.e., the determination of whether WhatsApp has a
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`FABRICANT LLP | FABRICANTLLP.COM | 411 THEODORE FREMD AVE., SUITE 206 SOUTH, RYE, NY 10580 | 212.257.5797
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`Case 2:21-cv-00072-JRG-RSP Document 127-1 Filed 08/18/21 Page 7 of 7 PageID #: 3049
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`The Honorable Roy S. Payne
`U.S. Magistrate Judge
`August 18, 2021
`Page 6
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`regularly established place of business in the Eastern District of Texas and whether there is a
`physical place in the District of WhatsApp.
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`Again, WhatsApp’s objections are based on a misinterpretation of the law, which necessarily
`includes a determination as to whether WhatsApp is transacting business in the District, in order
`to determine if a certain location is one of business. In a non-limiting example, to the extent
`WhatsApp is providing services or delivering work to a certain customer (such as a commercial
`or government customers) and such work requires WhatsApp to indefinitely place an individual
`in the District at a physical location, such information is discoverable as relevant to the venue
`analysis. For at least these reasons and given geographical and temporal scope of the requests,
`WhatsApp has failed to articulate a sufficient objection to exclude the discovery into the business
`it transacts within the District.
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`Respectfully,
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`/s/ Vincent J. Rubino, III
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`Vincent J. Rubino, III
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`VJR:cjs
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`FABRICANT LLP | FABRICANTLLP.COM | 411 THEODORE FREMD AVE., SUITE 206 SOUTH, RYE, NY 10580 | 212.257.5797
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