Case 2:21-cv-00072-JRG-RSP Document 128 Filed 08/20/21 Page 1 of 9 PageID #: 3050
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`AGIS SOFTWARE DEVELOPMENT
`LLC,
`
` Plaintiff,
`
`v.
`
`T-MOBILE USA, INC. and T-MOBILE
`US, INC.,
`
` Defendants.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`§
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`§
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`ORDER
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`Case No. 2:21-cv-00072-JRG-RSP
` LEAD CASE
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`
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`The Court previously ordered Plaintiff AGIS Software Development LLC to file a written
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`notice of the narrowest set of discovery necessary to address venue by August 13, 2021, with
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`Defendant WhatsApp, Inc. to file a response by August 16, 2021 and AGIS to file any reply by
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`August 18, 2021. Dkt. No. 121. AGIS filed its written notice and attached to it correspondence
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`with WhatsApp. Dkt. No. 122-1. AGIS’ correspondence seeks, from 2017 to present, the following
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`discovery:
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`
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`(1) Documents sufficient to identify 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.
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`(2) 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;
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`1
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`Case 2:21-cv-00072-JRG-RSP Document 128 Filed 08/20/21 Page 2 of 9 PageID #: 3051
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`(3) Documents sufficient to identify 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.
`Plaintiff agrees that Defendant does not need to provide the full
`home address. Plaintiff requests that, for each individual,
`Defendant provide at least: the individual’s title, organization,
`and responsibilities; the city and county of residence of the
`individual; the full addresses of any office locations; any
`agreements to reimburse or otherwise provide payment for
`office space, equipment, utilities, and services; and any
`agreements and conditions of individual’s employment.
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`(4) 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.
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`Dkt. No. 122-1 at 2–3. AGIS’ correspondence also includes Interrogatory Nos. 10–13. Dkt. No.
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`122-2 at 3–6.
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`WhatsApp then filed its response, attaching correspondence with AGIS. Dkt. Nos. 123;
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`123-1 WhatsApp states that WhatsApp would make its declarant that neither WhatsApp nor parent
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`company Facebook, Inc. “owns, leases, or rents any property, facilities, or equipment in this
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`District, and that there are no WhatsApp or Facebook employees who work at any facility located
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`in this District” available for deposition the week of August 23, 2021. Dkt. No. 123-1 at 2.
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`WhatsApp asserts that it has produced certified land plats from official county records establishing
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`the location of the Like Way Data Center as wholly in the Northern District of Texas and a
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`declaration confirming that Facebook terminated its use of the INAP Data Center in 2018. Id.
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`WhatsApp also promises to produce in the next two weeks the following discovery:
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`the INAP Data Center,
`to
`agreements with INAP related
`WhatsApp’s policy on remote work (confirming that neither
`WhatsApp nor Facebook own, lease, or otherwise pay for the home
`of its remote employees, WhatsApp and Facebook employees are
`free to live wherever they choose, and that employment by
`WhatsApp or Facebook is not contingent on living in this District),
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`2
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`Case 2:21-cv-00072-JRG-RSP Document 128 Filed 08/20/21 Page 3 of 9 PageID #: 3052
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`a list of WhatsApp remote employees (identified by employee
`number) residing in cities fully or partially in the Eastern District of
`Texas, and a list of Facebook remote employees (identified by
`employee number) residing in cities fully or partially in the Eastern
`District of Texas.
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`Id. WhatsApp contends AGIS seeks burdensome discovery that has no impact on the venue
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`analysis to further delay a motion to dismiss. Id. at 3.
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`
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`WhatsApp also responds to AGIS’ Interrogatory Nos. 10–13 and objects to (1) an
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`identification of all properties owned by any employees of WhatsApp and its affiliates because
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`employee’s properties are irrelevant, (2) all equipment located at these properties because
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`Facebook removed all equipment from the INAP Data Center more than three years ago and a list
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`of servers located there in 2017 does not change that, (3) discovery into locations and property
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`dating back to 2017 because venue is to be examined as of the date the suit is filed, (4) all
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`agreements relating to any services performed within the Eastern District of Texas and all counties
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`adjacent to the Eastern District of Texas, including agreements relating to communication services,
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`utility services, and all vendor services because it goes beyond the scope of relevant discovery, (5)
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`the previous request narrowed to facilities adjacent to the Eastern District of Texas as such
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`facilities are located outside the Eastern District of Texas and are irrelevant, (6) information on
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`any employee, contractor, vendor, agent, or third party who merely resides in the Eastern District
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`of Texas, (7) Interrogatory No. 13 in its entirety as vague and beyond what AGIS agreed to during
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`meet and confer.
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`
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`AGIS’ reply letter contends that not only is AGIS entitled to all information and materials
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`relevant to the activities and locations of WhatsApp in the Eastern District of Texas, but WhatsApp
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`should also have already produced those items as responsive to the requirements of the Court’s
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`Discovery Order. Dkt. No. 127-1 at 2. Regarding Interrogatory No. 10 and Document Request No.
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`3
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`Case 2:21-cv-00072-JRG-RSP Document 128 Filed 08/20/21 Page 4 of 9 PageID #: 3053
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`1, AGIS argues that WhatsApp’s response does not address the portion of AGIS’ request
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`concerning whether WhatsApp, its affiliates, or its employees “use” any other “physical property,
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`offices, facilities, coworking spaces, warehouses, tangible and intangible property, equipment,
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`servers, data centers, and other physical locations” located within or adjacent to the Eastern District
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`of Texas and accordingly does not object to this request. The Court agrees.
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`
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`As AGIS states, what WhatsApp objects to is discovery on employee-owned properties,
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`which AGIS asserts is a mischaracterization of Plaintiff’s request. AGIS argues that it seeks
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`discovery as to employees, consultants, and WhatsApp affiliates on:
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`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).
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`Id. at 4 (emphasis added). Document Request No. 1 provides:
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`(1) Documents sufficient to identify 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,
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`4
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`Case 2:21-cv-00072-JRG-RSP Document 128 Filed 08/20/21 Page 5 of 9 PageID #: 3054
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`any affiliate of WhatsApp, or any employees, consultants, or any
`personnel of WhatsApp.
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`Dkt. No. 122-1 at 2 (emphasis added). It is not a mischaracterization to state that AGIS’ request
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`clearly seeks discovery on employee owned and leased properties. WhatsApp’s objection to such
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`a request is proper. However, the request that AGIS asserts that it intended to make—discovery
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`regarding property that “WhatsApp reimburses, pays, or otherwise provides remuneration for”—
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`is reasonable. Accordingly, the Court finds it proper for WhatsApp to produce the discovery
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`requested in Document Request No. 1 with the caveat that it is explicitly limited to (1) “all physical
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`property, offices, facilities, coworking spaces, warehouses, tangible and intangible property,
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`equipment, servers, data centers, and other physical locations located in the EDTX and the counties
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`adjacent to the EDTX that are leased, owned, or otherwise used by WhatsApp, any affiliate of
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`WhatsApp;” (2) any physical property, offices, facilities, coworking spaces, warehouses, tangible
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`and intangible property, equipment, servers, data centers, and other physical locations for which
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`WhatsApp reimburses, pays, or otherwise provides remuneration for the physical property, offices,
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`facilities, coworking spaces, warehouses, tangible and intangible property, equipment, servers,
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`data centers, and other physical locations; and (3) the identity of, all agreements and terms related
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`to, documents related to, and one or more testifying witnesses with knowledge of any physical
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`property, offices, facilities, coworking spaces, warehouses, tangible and intangible property,
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`equipment, servers, data centers, and other physical locations that WhatsApp exerts any control
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`over, conducts business from, has a hand in selecting, or conditions employment on. This
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`discovery excludes any residences where employees, consultants, or any personnel of WhatsApp
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`both reside and conduct business from that WhatsApp does not reimburse, pay, or otherwise
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`provide remuneration for. A residence that an employee may work remotely from that their
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`employer does not condition employment on residence at or store materials at for distribution and
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`5
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`Case 2:21-cv-00072-JRG-RSP Document 128 Filed 08/20/21 Page 6 of 9 PageID #: 3055
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`sale is not a regular and established place of business of the employer. See In re Cray, 871 F.3d at
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`1363–1367.
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`
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`AGIS argues that WhatsApp should provide discovery on equipment located at the Like
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`Way Data Center and INAP Data Center and that WhatsApp has provided no discovery on any
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`migration or legacy services at the INAP Data Center. Dkt. No. 127-1 at 4. AGIS asserts that
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`WhatsApp’s response proposes limiting the discovery of the equipment WhatsApp uses in the
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`Eastern District of Texas to equipment in only two locations and discovery dating back to 2017.
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`Id. WhatsApp’s response notes that discovery has been open for months and WhatsApp requested
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`that AGIS serve any discovery it believed necessary to determine venue on June 9, 2021. Dkt. No.
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`123-1 at 3.
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`
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`WhatsApp should have already produced such discovery regarding other locations in the
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`Eastern District of Texas as part of its disclosures under the Discovery Order. However, AGIS
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`should have requested this information if it was not provided and filed a motion to compel if
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`WhatsApp refused. As WhatsApp says, discovery has been open for months, specifically since the
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`scheduling conference on May 12, 2021. AGIS argues the discovery should not be limited to the
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`two locations that WhatsApp argues in WhatsApp’s Motion to Dismiss for Improper Venue (Dkt.
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`No. 63), which was filed on April 27, 2021.
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`It is AGIS’ burden to make arguments establishing venue in their response and sur-reply.
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`AGIS is not limited to the locations WhatsApp argued in its motion. Discovery regarding any basis
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`within the Eastern District of Texas for venue in advance of an evidentiary hearing for the purpose
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`of resolving a motion to dismiss for improper venue is relevant and must be produced. Regarding
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`the geographical scope’s inclusion of “adjacent to the Eastern District of Texas,” the objection to
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`such scope as “outside the Eastern District of Texas” misses that there is a factual dispute regarding
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`6
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`Case 2:21-cv-00072-JRG-RSP Document 128 Filed 08/20/21 Page 7 of 9 PageID #: 3056
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`the Like Way Data Center’s location in its form as of the date the suit was filed. See Dkt. No. 127-
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`1 at 5. For this reason, the Court permits discovery regarding locations “adjacent to the Eastern
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`District of Texas” not because they are adjacent and therefore outside of the Eastern District of
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`Texas, but because there is a dispute as to whether a location asserted to be only adjacent to the
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`Eastern District of Texas is in fact within the Eastern District of Texas.
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`Regarding the timeline discovery can go back to, the Court permits AGIS to seek discovery
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`dating back to 2017. While the Court recognizes that WhatsApp asserts that Facebook terminated
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`its use of the INAP Data Center in 2018, AGIS argues that legacy equipment may remain in
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`operation and asserts that “WhatsApp has provided no discovery on any migration or legacy
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`services at the INAPP [sic] Data Center.” Dkt. No. 127-1 at 4. If Facebook has terminated its use
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`of the INAP Data Center and no such equipment remains, WhatsApp is in the best position to
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`provide evidence. As AGIS illustrates in its non-limiting example, “if WhatsApp entered into an
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`agreement to own, lease, or otherwise use a certain place prior to the filing of the complaint, or
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`prior to the time the cause of action accrued, that agreement should not be excluded from
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`production if the agreement was effective at the time of the filing of the complaint or the time the
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`cause of action accrued.” Id. at 5.
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`AGIS argues, contrary to WhatsApp’s intent to limit the scope of discovery to remote
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`employees in the District by “exclude[ing] employees, vendors, contractors, utility providers, and
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`agents that reside in the Eastern District of Texas,” and regarding Interrogatory No. 12 and
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`Document Request No. 3, that AGIS is entitled to discover the requested categories of individuals
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`and third parties. Dkt. No. 127-1 at 6. Document Request No. 3 provides:
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`Documents sufficient to identify 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.
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`
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`7
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`Case 2:21-cv-00072-JRG-RSP Document 128 Filed 08/20/21 Page 8 of 9 PageID #: 3057
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`Plaintiff agrees that Defendant does not need to provide the full
`home address. Plaintiff requests that, for each individual, Defendant
`provide at
`least:
`the
`individual’s
`title, organization, and
`responsibilities; the city and county of residence of the individual;
`the full addresses of any office locations; any agreements to
`reimburse or otherwise provide payment for office space,
`equipment, utilities, and services; and any agreements and
`conditions
`of
`individual’s
`employment.
`
`Dkt. No. 122-1 at 3. The Court finds the scope of this request to be reasonable. Regarding home
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`addresses, AGIS limits the scope as “Plaintiff agrees that Defendant does not need to provide the
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`full home address. Plaintiff requests that, for each individual, Defendant provide . . . the city and
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`county of residence . . . [and] the full address of any office locations . . . .” Id.
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`
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`Finally, AGIS contends that “all agreements, contracts, and documents related to all
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`business, services, transactions, and work delivered or performed for any customers, by or on
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`behalf of WhatsApp and its affiliates, in the EDTX and in the counties adjacent to the EDTX” is
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`relevant to the venue analysis in its entirety. The Court agrees regarding document production.
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`However, AGIS does not respond to WhatsApp’s objection to Interrogatory No. 13 as vague and
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`unbounded. See Dkt. No. 123-1 at 5–6. Interrogatory No. 13 provides:
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`Identify and describe, in detail, all past and present business,
`services, transactions, and work conducted and performed in any
`county of the Eastern District of Texas and any county adjacent to
`the Eastern District of Texas by or on behalf of WhatsApp and its
`affiliates. This request is limited to the time period of 2017 to
`present.
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`Dkt. No. 122-2 at 6. WhatsApp argues, “[f]or example, this request encompasses any use of the
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`WhatsApp product (accused or not accused) within the Eastern District of Texas.” Dkt. No. 123-
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`1 at 6. The Court agrees that the vagueness present in the interrogatory suggests an improperly
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`broad scope. Accordingly, the Court specifically excludes from document production and
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`8
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`Case 2:21-cv-00072-JRG-RSP Document 128 Filed 08/20/21 Page 9 of 9 PageID #: 3058
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`Interrogatory No. 13 production regarding the use of WhatsApp products by individual end-users.
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`Such a production is not only overbroad and burdensome to produce but also excessively invasive.
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`
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`Accordingly, the Court hereby ORDERS that WhatsApp produce the requested discovery
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`and answer Interrogatory Nos. 10–13 as limited by the above exclusions.
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`9
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`____________________________________
`ROY S. PAYNE
`UNITED STATES MAGISTRATE JUDGE
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`SIGNED this 3rd day of January, 2012.
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`SIGNED this 20th day of August, 2021.
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