Case 2:21-cv-00072-JRG-RSP Document 209 Filed 11/05/21 Page 1 of 14 PageID #: 7397
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`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CASE NO. 2:21-cv-00072-JRG
`(Lead Case)
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`CASE NO. 2:21-cv-00026-JRG
`(Member Case)
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`§
`§
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`§
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` §
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`v.
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`T-MOBILE USA, INC., AND T-MOBILE
`US, INC.
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`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`v.
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`UBER TECHNOLOGIES, INC.,
`d/b/a UBER,
`
`
`DEFENDANT UBER TECHNOLOGIES, INC.’S
`OPPOSED MOTION TO COMPEL ADDITIONAL DEPOSITION TIME FOR
`MALCOLM BEYER JR.
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`

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`Case 2:21-cv-00072-JRG-RSP Document 209 Filed 11/05/21 Page 2 of 14 PageID #: 7398
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`TABLE OF CONTENTS
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`BACKGROUND ................................................................................................................ 1
`LEGAL STANDARD ......................................................................................................... 2
`ARGUMENT ...................................................................................................................... 3
`A.
`Good Cause Exists to Order Mr. Beyer to Sit for Five More Hours of Deposition.3
`B.
`AGIS’s Objections to Additional Deposition Time Are Meritless. ........................ 4
`C.
`AGIS’s Proposed Compromise Position is Arbitrary and Prejudicial .................... 5
`CONCLUSION ................................................................................................................... 7
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` 
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`I.
`II.
`III.
`IV.
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`i
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`

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`Case 2:21-cv-00072-JRG-RSP Document 209 Filed 11/05/21 Page 3 of 14 PageID #: 7399
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`CASES
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`TABLE OF AUTHORITIES
`
`In re Blue Cross Blue Shield Antitrust Litigation,
`No. X2:13-cv-20000-RDP, 2017 WL 10410066 (N.D. Ala. Apr. 25, 2017) ............................4
`
`EVS Codec Techs., LLC v. OnePlus Tech. (Shenzhen) Co., Ltd.,
`No. 2:19-CV-00057-JRG, 2020 WL 6365514 (E.D. Tex. Apr. 9, 2020) ..................................2
`
`Genband US LLC v. Metaswitch Networks Corp.,
`2:14-cv-00033-JRG-RSP (E.D. Tex. May 21, 2015).................................................................3
`
`Herbert v. Lando,
`441 U.S. 153 (1979) ...................................................................................................................2
`
`Indianapolis Airport Authority v. Travelers Property Cas. Co. of America,
`No. 1:13–cv–01316–JMS–TAB, 2015 WL 4458903 (S.D. Ind. Jul. 21, 2015) ........................4
`
`JSR Micro, Inc. v. QBE Ins. Corp.,
`No. C-09-03044 PJH (EDL), 2010 WL 1338152 (N.D. Cal. Apr. 5, 210) ............................4, 6
`
`Kress v. Pricewaterhouse Coopers, LLP,
`No. 2:08-cv-0965 LKK AC, 2013 WL 2421704 (E.D. Cal. June 3, 2013) ...............................3
`
`RULES
`
`Fed. R. Civ. Pro. 30(d)(1) ............................................................................................................2, 5
`
`
`
`
`ii
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`

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`Case 2:21-cv-00072-JRG-RSP Document 209 Filed 11/05/21 Page 4 of 14 PageID #: 7400
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`Defendant Uber Technologies, Inc. (“Uber”) respectfully requests that the Court order
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`Plaintiff AGIS Software Development LLC (“AGIS”) to produce Malcolm Beyer Jr. for five hours
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`of additional deposition time, independent of any additional time requested by Lyft.
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`I.
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`BACKGROUND
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`Mr. Beyer is the sole named inventor for two of the asserted patents in this case, and he is
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`the named co-inventor on the other three patents in this case. He is also the CEO of AGIS
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`Software, the plaintiff in this case, and the CEO of AGIS Inc., which is a related company that
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`purports to sell products practicing the patents. Mr. Beyer exercises such control over both
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`companies that, at his deposition, he mistakenly thought he was the plaintiff himself. AGIS
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`disclosed Mr. Beyer in its Initial Disclosures as having knowledge on a number of issues, and on
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`September 22, 2021, Uber noticed Mr. Beyer’s deposition in his personal capacity. Furthermore,
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`AGIS Software designated Mr. Beyer on ninety-one corporate topics, and AGIS Inc. designated
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`Mr. Beyer on eighty-one corporate topics, out of the one hundred and seventy-seven total topics
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`Uber requested to both AGIS entities. That is, AGIS Software and AGIS Inc. designated Mr.
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`Beyer on 172 out of 177 topics, and only a handful of overlapping topics were assigned to any
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`other witness, despite AGIS identifying twelve other witnesses with knowledge relevant to the
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`issues in the case.
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`On October 1, 2021, AGIS1 offered Mr. Beyer for deposition, subject to a seven-hour
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`limitation. Uber responded, stating that a seven-hour limit would not work, given the number of
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`topics for which Mr. Beyer was designated, and based on his role as inventor and CEO of both
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`1 The same law firm represents AGIS Inc. and AGIS Software. The referenced email does not
`clarify whether it was sent on behalf of one or both of the entities.
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`1
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`Case 2:21-cv-00072-JRG-RSP Document 209 Filed 11/05/21 Page 5 of 14 PageID #: 7401
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`entities. After a number of discussions between the parties, AGIS2 offered to put Mr. Beyer up for
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`two five-hour depositions, and it agreed to meet and confer following the second deposition to
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`discuss a potential third deposition. Uber maintained that it required more than ten hours,
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`particularly given the number of topics.
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`Mr. Beyer was put up for deposition on October 20 and October 22, 2021, for five hours
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`each day. At the end of the second deposition, Uber stated its need for additional time. The parties
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`thereafter conferred, and Uber requested five additional hours. AGIS offered three hours, limited
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`to a handful of specifically enumerated topics, and with the time being shared among the other
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`defendants. Uber refused to agree to AGIS’s conditions, and the parties reached an impasse. See
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`Ex. A.
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`II.
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`LEGAL STANDARD
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`“The rules of discovery ‘are to be accorded a broad and liberal treatment to effect their
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`purpose of adequately informing litigants in civil trials.’” EVS Codec Techs., LLC v. OnePlus
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`Tech. (Shenzhen) Co., Ltd., No. 2:19-CV-00057-JRG, 2020 WL 6365514, at *1 (E.D. Tex. Apr.
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`9, 2020) (quoting Herbert v. Lando, 441 U.S. 153, 176 (1979)). Regarding the length of
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`depositions, the Federal Rules provide that the default length is seven hours, but the court “must
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`allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the
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`deponent or if the deponent, another person, or any other circumstance impedes or delays the
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`examination.” Fed. R. Civ. Pro. 30(d)(1). The Discovery Order in this case provides that
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`depositions may exceed seven hours upon a showing of good cause. See D.I. 79 at 5(c).
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`2 Again, the law firm sending the email represents both AGIS entities, and it is not clear from the
`email whether it was sent on behalf of one of the entities or both.
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`2
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`Case 2:21-cv-00072-JRG-RSP Document 209 Filed 11/05/21 Page 6 of 14 PageID #: 7402
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`III. ARGUMENT
`A.
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`Good Cause Exists to Order Mr. Beyer to Sit for Five More Hours of Deposition.
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`Mr. Beyer is certainly AGIS’s most important witness covering the widest range of topics,
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`and he is potentially one of the most important witnesses in the case. As noted above, he is the
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`sole inventor or one of two inventors for every asserted patent, he is the CEO of the plaintiff, AGIS
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`Software, and he is the CEO of the sister company, AGIS Inc., which allegedly practices the
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`asserted patents. And, AGIS Software and AGIS Inc. chose to designate Mr. Beyer on 172 topics
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`out of the 177 total topics Uber identified in its 30(b)(6) notice to AGIS Software and its subpoena
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`to AGIS Inc.
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`By way of non-limiting examples, Uber was not able to explore adequately issues relating
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`to secondary considerations, the contributions of the co-inventor, Christopher Rice, to the products
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`that allegedly practice the patents, issues relating to the ’970 patent, AGIS’s competitive
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`relationship with Uber, and certain facts about this lawsuit. These areas implicate at least topics
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`1, 4, 5, 7, 9, 10, 11, 12, 13, 14, 21, 29, 30, 31, 32, 33, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47,
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`48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 67, 75, 76, 79, 80, 85, 86, 89, 91, and 92 .
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`Accordingly, Uber is amply justified in asking for five additional hours to depose Mr.
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`Beyer. Mr. Beyer has sat for ten hours so far, and fifteen hours total is a perfectly reasonable
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`amount of time to depose a witness designated on so many topics and with so much relevant,
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`personal knowledge of the plaintiff, the alleged inventions, and the plaintiff’s sister company
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`which allegedly practices the patents. Courts routinely grant additional time in similar
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`circumstances. See, e.g., Genband US LLC v. Metaswitch Networks Corp., No. 2:14-cv-00033-
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`JRG-RSP (E.D. Tex. May 21, 2015) (granting motion to compel additional deposition time based
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`on witness being deposed in personal capacity and as 30(b)(6) representative); Kress v.
`
`Pricewaterhouse Coopers, LLP, No. 2:08-cv-0965 LKK AC, 2013 WL 2421704, at *4 (E.D. Cal.
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`3
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`Case 2:21-cv-00072-JRG-RSP Document 209 Filed 11/05/21 Page 7 of 14 PageID #: 7403
`Case 2:21-cv-00072-JRG-RSP Document 209 Filed 11/05/21 Page 7 of 14 PagelD #: 7403
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`June 3, 2013); In re Blue Cross Blue Shield Antitrust Litigation, No. X2:13-cv-20000-RDP, 2017
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`WL 10410066, at *2-3 (N.D. Ala. Apr. 25, 2017); JSR Micro, Inc. v. OBE Ins. Corp., No. C-09-
`
`03044 PJH (EDL), 2010 WL 1338152, at *6 (N.D. Cal. Apr. 5, 210); Indianapolis Airport
`
`Authority v. Travelers Property Cas. Co. ofAmerica, No. 1:13-cv-01316—JMS-TAB,2015 WL
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`4458903, at *5 (S.D. Ind. Jul. 21, 2015).
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`B.
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`AGIS’s Objections to Additional Deposition Time Are Meritless.
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`In opposing Uber’s request, AGIS raises two arguments. Neither has merit.
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`First, AGIS argues that “Mr. Beyer [is] an 83 year old man,” and that Uber’s request is
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`motivated by a desire to “harass and exhaust him,” rather than to “gather additional probative
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`information.” See Ex. A. This is not true. AGJS made the decision to designate Mr. Beyer on
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`172 of 177 topics. AGIS’s own initial disclosures confirm it had a dozen other witnesses who
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`could havetestified on many of these topics, and Mr. Beyer himself admitted in deposition that he
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`wasnotthe best situated to answer some of the questions. If Mr. Beyer did not wantto sit for extra
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`deposition time, AGIS should not have designated him on so manytopics.? AGIS cannot complain
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`that Uber now asks the Court’s assistance so that it can fully explore the topics on which AGIS
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`designated Mr. Beyer.*
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`It is worth noting that, by contrast, Uber evenly distributed its 30(b)(6) topics across eight
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`witnesses, and no witness was given more than 30 topics. The cumulative testimonial time of
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`3 It is also worth noting that Mr. Beyer’s answers were sometimes excessively long and non-
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`responsive, which took up additional time.
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`4 Uber’s efficiency at asking Mr. Beyer questions was further curtailed by the fact that AGIS
`refused to provide narrative answersto certain of the interrogatories, which required Uberto
`cover material that should have been covered already in the interrogatory responses.
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`Case 2:21-cv-00072-JRG-RSP Document 209 Filed 11/05/21 Page 8 of 14 PageID #: 7404
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`those individuals far exceeds the fifteen total requested hours for Mr. Beyer. AGIS cannot cut off
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`the amount of 30(b)(6) deposition time by assigning essentially every topic to Mr. Beyer and then
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`insisting on strict limits for Mr. Beyer’s time. Indeed, AGIS specifically agreed to a Discovery
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`Order providing that “each party may take up to 40 total hours of deposition testimony of another
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`party (inclusive of both 30(b)(1) and 30(b)(6) depositions,” but that “Depositions of experts, third
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`parties, and inventors do not count against these limits.” D.I. 72-1 at 5(c); D.I. 78 at 5(c). Having
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`been designated on 172 out of 177 corporate topics, and being an inventor on every asserted patent
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`(which is outside of the forty-hour cap), and speaking on behalf of a non-party, AGIS Inc. (which
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`is outside of the forty-hour cap), AGIS cannot claim surprise that Uber needs more than ten hours
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`of time with Mr. Beyer.
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`AGIS also argues that Uber already was able to ask Mr. Beyer about a number of the topics
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`for which it seeks additional testimony. This argument misses the point. Uber is entitled to “fairly
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`examine” the witness on his personal knowledge and on the topics for which he was designated.
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`Fed. R. Civ. Pro. 30(d)(1). The fact that Uber asked a handful of the questions it needs to ask Mr.
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`Beyer about his knowledge on those topics should not preclude Uber from asking about the rest.
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`C.
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`AGIS’s Proposed Compromise Position is Arbitrary and Prejudicial
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`During the meet and confer process, AGIS proposed a compromise, in which it would put
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`Mr. Beyer up for an additional deposition, with three significant limitations: first, Mr. Beyer would
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`only go up for an additional three hours, not the five requested by Uber; second, Uber would have
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`to identify, in writing, the five specific topics about which it intended to question Mr. Beyer at his
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`deposition; and third, Uber would have to agree to share the three hours with the other defendants.
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`See Ex. A. None of these limitations is appropriate.
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`As to the first, for all of the reasons explained above, AGIS designated Mr. Beyer on the
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`vast majority of topics, and Uber reasonably believes it needs five more hours to cover those topics
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`5
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`Case 2:21-cv-00072-JRG-RSP Document 209 Filed 11/05/21 Page 9 of 14 PageID #: 7405
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`fully with Mr. Beyer.
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`As to the second, there is no reason to arbitrarily limit the remainder of Mr. Beyer’s
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`deposition to 5 of the 172 topics, nor is there any reason to force Uber to pre-commit to the topics
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`it will further explore at the deposition. AGIS has failed to identify a single reason or legal
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`requirement justifying this limitation, and in other circumstances, courts agree that supplemental
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`deposition time is not limited to specific topics. JSR Micro, Inc. v. QBE Ins. Corp., No. C-09-
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`03044 PJH (EDL), 2010 WL 1338152, at *6 (N.D. Cal. Apr. 5, 210) (“Plaintiff is entitled to
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`additional time to depose this key witness. There has been no showing that Plaintiff's counsel
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`wasted time at the deposition. Plaintiff may depose Ashby for an additional four hours and may
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`use the time for questioning as Plaintiff sees fit.”). Mr. Beyer was prepared to address every topic
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`at his deposition ten days ago, and there is no reason to believe that it would take an inordinate
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`amount of time for him to refresh himself (and if it did, that is a reason AGIS should have agreed
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`to put him up for the additional time promptly after the second deposition). Finally, a bright-line
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`rule that Mr. Beyer can only be asked about certain, narrowly defined topics is unworkable,
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`because the parties will inevitably disagree about whether a question falls within the scope of the
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`topic, and if Mr. Beyer gives an answer that requires a follow-up question that is arguably outside
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`the scope of the topics, Uber needs to be able to follow up.
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`As to the third, AGIS specifically agreed to a Discovery Order providing that “each party
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`may take up to 40 total hours of deposition testimony of another party (inclusive of both 30(b)(1)
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`and 30(b)(6) depositions,” not counting expert, third party, or inventor testimony. D.I. 72-1 at
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`5(c); D.I. 78 at 5(c) (emphasis added). Having chosen to sue multiple defendants, and agreed that
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`each party gets up to 40 hours of deposition time, AGIS cannot now refuse to give Uber the full
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`time it requires to depose AGIS’s lead corporate witness.
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`6
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`Case 2:21-cv-00072-JRG-RSP Document 209 Filed 11/05/21 Page 10 of 14 PageID #: 7406
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`IV. CONCLUSION
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`For the reasons stated above, Uber respectfully requests that the Court grant Uber’s motion
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`to compel five additional hours of deposition time for Malcolm Beyer Jr.
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`7
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`Case 2:21-cv-00072-JRG-RSP Document 209 Filed 11/05/21 Page 11 of 14 PageID #: 7407
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`Dated: November 3, 2021
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`By: /s/ Mark N. Reiter
`
`Mark N. Reiter
`Texas State Bar No. 16759900
`mreiter@gibsondunn.com
`Robert A. Vincent
`Texas State Bar No. 24056474
`rvincent@gibsondunn.com
`Nathan R. Curtis
`Texas State Bar No. 24078390
`ncurtis@gibsondunn.com
`Ashbey N. Morgan
`Texas State Bar No. 24106339
`anmorgan@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`2001 Ross Avenue, Suite 2100
`Dallas, TX 75201-6912
`Telephone: 214.698.3360
`Facsimile: 214.571.2907
`
`Melissa R. Smith
`Texas State Bar No. 24001351
`GILLIAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: 903.934.8450
`Facsimile: 903.934.9257
`Email: melissa@gilliamsmithlaw.com
`
`
`Attorneys for Defendant Uber Technologies, Inc.
`d/b/a Uber
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`8
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`Case 2:21-cv-00072-JRG-RSP Document 209 Filed 11/05/21 Page 12 of 14 PageID #: 7408
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`CERTIFICATE OF SERVICE
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`I hereby certify that on November 3, 2021, the foregoing was electronically filed in
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`compliance with Local Rule CV-5(a) and served via the Court’s electronic filing system on all
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`counsel who have consented to electronic service.
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`/s/ Mark N. Reiter
`Mark N. Reiter
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`9
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`Case 2:21-cv-00072-JRG-RSP Document 209 Filed 11/05/21 Page 13 of 14 PageID #: 7409
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`CERTIFICATE OF CONFERENCE
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`Pursuant to Local Rule CV-7(h) and (i), I certify that on November 1, 2021, lead and local
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`counsel participated in a telephonic meet and confer to discuss the subject matter of this motion,
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`and the parties were not able to reach a resolution. Mark Reiter as lead counsel, Melissa Smith as
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`local counsel, and other attorneys attended on behalf of Uber. On behalf of AGIS, Alfred
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`Fabricant, Jennifer Truelove, and other attorneys attended. The motion is opposed.
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`/s/ Mark N. Reiter
`Mark N. Reiter
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`/s/ Melissa R. Smith
`Melissa R. Smith
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`10
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`Case 2:21-cv-00072-JRG-RSP Document 209 Filed 11/05/21 Page 14 of 14 PageID #: 7410
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`CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL
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`The undersigned hereby certifies that, under Local Rule CV-5(a)(7)(B), the foregoing
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`document is filed under seal pursuant to the Court’s Protective Order entered in this matter.
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`/s/ Mark N. Reiter
`Mark N. Reiter
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`11
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