Case 2:21-cv-00072-JRG-RSP Document 232 Filed 11/22/21 Page 1 of 8 PageID #: 7848
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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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`v.
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`T-MOBILE USA, INC., and T-MOBILE
`US, INC.
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`AGIS SOFTWARE DEVELOPMENT LLC
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`v.
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`LYFT, INC.
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`CASE NO. 2:21-cv-00072-JRG
`(Lead Case)
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`JURY TRIAL DEMANDED
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`CASE NO. 2:21-cv-00024-JRG
`(Member Case)
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`JURY TRIAL DEMANDED
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`DEFENDANT LYFT, INC.’S RESPONSE TO PLAINTIFF AGIS SOFTWARE
`DEVELOPMENT LLC’S OPPOSED MOTION TO COMPEL (DKT. 201)
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`Defendant Lyft, Inc. (“Lyft”), by and through its counsel, hereby responds in opposition to
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`Plaintiff AGIS Software Development LLC’s (“AGIS”) Motion to Compel Defendant Lyft, Inc.
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`to Provide Discovery (Dkt. 201) (“Motion”).
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`AGIS moves to compel Lyft to provide complete responses to Interrogatory Nos. 3, 8, and
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`9, and to produce documents and information responsive to each. Dkt. 201. However, Lyft already
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`supplemented its responses to each of these interrogatories as confirmed in the meet and confer on
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`the same day AGIS filed its motion, and produced all responsive documents and information
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`located after a reasonable and diligent search. This Court need not take any action. Although Lyft
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`has acted in a manner consistent with its representations, the same cannot be said about AGIS.
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`Indeed, despite AGIS informing the Court that it would withdraw its motion to compel if the
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`Case 2:21-cv-00072-JRG-RSP Document 232 Filed 11/22/21 Page 2 of 8 PageID #: 7849
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`alleged discovery deficiencies were resolved,1 AGIS has not done so. AGIS’s failure to withdraw
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`its Motion has caused Lyft to incur additional costs to needlessly prepare this response, and
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`unnecessarily burdens the Court with a moot discovery issue. As made clear by AGIS’s refusal to
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`agree to stay deadlines pending adoption of this Court’s dispositive Report and Recommendation
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`(Dkt. 212), AGIS is not concerned with wasting resources of the judiciary or the parties. See Dkt.
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`217. The tactics employed by AGIS not only harass and create unnecessary work for Lyft, they
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`also burden this Court. Accordingly, for at least the reasons stated herein, Lyft respectfully
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`requests this Court deny AGIS’s Motion.
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`I.
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`LEGAL STANDARD
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`A party moving to compel “bears the burden of showing that the materials and information
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`sought are relevant to the action or will lead to the discovery of admissible evidence,” and “that
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`the materials requested are within the scope of permissible discovery.” SSL Servs., LLC v. Citrix
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`Sys. Inc., No. 2-08-cv-158-TJW, 2010 U.S. Dist. LEXIS 11470, at *4-5 (E.D. Tex. Feb. 8, 2010).
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`Further, discovery should be “proportional to the needs of the case” as defined by Rule 26(b).
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`FED. R. CIV. P. 26(b)(1). A motion to compel should be denied where answers to discovery
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`requests have already been provided and the discovery sought to be compelled seeks to elicit the
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`same information already produced. See In re Norplant Contraceptive Prods. Liab. Litig., 170
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`F.R.D. 427, 428 (E.D. Tex. 1997). Moreover, a party is not required to create information that it
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`does not possess. Cunningham v. Concentrix Sols. Corp., No. 4:20-cv-661, 2021 U.S. Dist. LEXIS
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`48667, at *13 (E.D. Tex. Mar. 16, 2021) (“[A] party is not required to create or prepare a new or
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`previously non-existent document solely for its production.”).
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`1 See Dkt. 201 at 2-3 nn.1-2.
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`Case 2:21-cv-00072-JRG-RSP Document 232 Filed 11/22/21 Page 3 of 8 PageID #: 7850
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`II.
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`DISCUSSION
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`Lyft confirmed that it would supplement its responses to Interrogatory No. 3, 8 and 9,
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`subject to its objections,2 and produce all responsive documents within its possession, custody or
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`control that were identified after a reasonable and diligent search. Despite Lyft’s assurances that
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`supplemental responses and document productions were forthcoming, AGIS filed the instant
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`Motion. As detailed below, each of the requests propounded in AGIS’s Motion have been
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`resolved, either in view of Lyft’s supplemental interrogatory responses and document productions
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`or because such documentation simply does not exist.
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`A.
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`Lyft has provided a complete response to Interrogatory No. 3.
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`AGIS complains that Lyft’s response to Interrogatory No. 3 is deficient because it identifies
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`documents that “contain information for outside the United States and for Lyft products aside from
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`its ride-sharing products, and do not contain the fixed and variable costs for the Lyft Accused
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`Products.” Dkt. 201 at 2. This complaint, as stated, fails to provide a fulsome account of the facts
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`related to these requests, including that Lyft provided responsive information in its timely
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`supplemental response to Interrogatory No. 3.
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`With respect to AGIS’s complaints regarding Lyft’s financial documentation being
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`overinclusive, Lyft submits that these requests are now moot. AGIS first raised concerns regarding
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`the overinclusive nature of Lyft’s financial document production on October 29, 2021—four
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`business days before the close of fact discovery. After diligently investigating AGIS’s stated
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`concerns, counsel for Lyft explained to counsel for AGIS that the complained-about documents
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`2 AGIS incorrectly asserts that Lyft did not object to the relevance of the information sought by AGIS’s discovery
`requests. See Dkt. 201 at 2 (“Lyft does not contend that AGIS’s discovery requests seek irrelevant information.”).
`Lyft did, in fact, raise relevance objections to many of AGIS’s discovery requests, including Interrogatory Nos. 8
`and 9.
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`Case 2:21-cv-00072-JRG-RSP Document 232 Filed 11/22/21 Page 4 of 8 PageID #: 7851
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`contained information sufficient to distinguish ride-sharing financial data from non-ride-sharing
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`financial data. Notwithstanding the foregoing, Lyft confirmed that it would supplement its
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`financial document production—which it did prior to AGIS filing its Motion—to address each of
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`AGIS’s stated concerns. As Lyft has produced documentation resolving the alleged deficiencies
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`identified by AGIS and supplemented its response to Interrogatory No. 3 to identify such
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`documentation, this request is moot.
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`On October 28, 2021—five business days before the close of fact discovery—AGIS first
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`communicated its concern that Lyft’s financial document production allegedly did not contain
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`information regarding fixed and variable costs. As Lyft made clear in correspondence with AGIS,
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`Lyft’s financial document production did, in fact, provide detailed cost information, including
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`information regarding fixed and variable costs. AGIS subsequently clarified its request on October
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`29, 2021, articulating that it sought a breakdown or other identification showing which of Lyft’s
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`costs were fixed versus variable. Lyft investigated AGIS’s request and confirmed with AGIS
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`(within two business days) that
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`. AGIS’s request, therefore, seeks information that Lyft simply does not possess. And,
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`Case 2:21-cv-00072-JRG-RSP Document 232 Filed 11/22/21 Page 5 of 8 PageID #: 7852
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`there is no requirement that Lyft create such documentation simply for the purpose of litigation.
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`See Cunningham v. Concentrix Sols. Corp., No. 4:20-cv-661, 2021 U.S. Dist. LEXIS 48667, at
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`*13 (E.D. Tex. Mar. 16, 2021) (“[A] party is not required to create or prepare a new or previously
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`non-existent document solely for its production.”); Biote Med., LLC v. Jacobsen, No. 4:18-cv-
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`00866, 2021 U.S. Dist. LEXIS 18097, at *46 (E.D. Tex. Feb. 1, 2021) (“If the [] Defendants
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`genuinely do not have any responsive documents, there is nothing to produce.”). This Court should
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`thus deny AGIS’s Motion with respect to its request for additional information regarding fixed and
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`variable costs.
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`B.
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`Lyft has provided a complete response to Interrogatory Nos. 8 and 9.
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`AGIS’s information and document requests related to Interrogatory Nos. 8 and 9 have also
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`been mooted by Lyft’s supplemental responses and document productions. As recognized in
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`AGIS’s Motion, counsel for Lyft represented to counsel for AGIS, during the parties’ November
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`3, 2021 meet and confer, that Lyft would supplement its responses to Interrogatory Nos. 8 and 9
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`and produce any responsive documents. Lyft did just that.
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` In view of the fact that Lyft has provided a complete
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`response to Interrogatory Nos. 8 and 9, and produced all responsive documents identified after a
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`reasonable and diligent search, consistent with the testimony of its corporate witness on this topic,
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`this request is moot as there is nothing further to compel.
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`Case 2:21-cv-00072-JRG-RSP Document 232 Filed 11/22/21 Page 6 of 8 PageID #: 7853
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`III. CONCLUSION
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`For the foregoing reasons, Lyft respectfully requests this Court to deny AGIS’s Motion.
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`Date: November 18, 2021
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`Respectfully submitted,
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`/s/ Bethany R. Salpietra
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`Jeremy J. Taylor
`Arya Moshiri (Pro Hac Vice)
`Baker Botts L.L.P.
`jeremy.taylor@bakerbotts.com
`arya.moshiri@bakerbotts.com
`101 California St., Suite 3600
`San Francisco, CA 94111
`Telephone: (415) 291-6200
`Facsimile: (415) 291-6300
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`Danny David
`Michelle J. Eber
`Baker Botts L.L.P.
`danny.david@bakerbotts.com
`michelle.eber@bakerbotts.com
`910 Louisiana Street
`Houston, TX 77002
`Telephone: (713) 229-1234
`Facsimile: (713) 229-1522
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`Kurt Pankratz
`Bethany R. Salpietra
`Megan LaDriere White
`Baker Botts L.L.P.
`kurt.pankratz@bakerbotts.com
`bethany.salpietra@bakerbotts.com
`megan.ladriere@bakerbotts.com
`2001 Ross Ave., Ste. 900
`Dallas, TX 75201
`Telephone: (214) 953-6500
`Facsimile: (214) 953-6503
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`Jennifer C. Tempesta
`Baker Botts L.L.P.
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`6
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`Case 2:21-cv-00072-JRG-RSP Document 232 Filed 11/22/21 Page 7 of 8 PageID #: 7854
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`jennifer.tempesta@bakerbotts.com
`30 Rockefeller Plaza, 44th Floor
`New York, NY 10112
`Telephone: (212) 408-2571
`Facsimile: (212) 259-2571
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`Lauren J. Dreyer
`Baker Botts L.L.P.
`lauren.dreyer@bakerbotts.com
`700 K Street NW
`Washington, DC 2000
`Telephone: (202) 639-7823
`Facsimile: (202) 639-1153
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`Brianna Potter (Pro Hac Vice)
`Baker Botts L.L.P.
`brianna.potter@bakerbotts.com
`1001 Page Mill Road
`Palo Alto, CA 94304
`Telephone: (650) 739-7556
`Facsimile: (650) 739-7656
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`Deron R. Dacus
`The Dacus Firm, P.C.
`ddacus@dacusfirm.com
`821 ESE Loop 323, Suite 430
`Tyler, Texas 75701
`Telephone: (903) 705-1117
`Facsimile: (903) 581-2543
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`Attorneys for Defendant Lyft, Inc.
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that counsel of record who are deemed to have consented
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`to electronic services are being served with a copy of this document via email on the 18th of
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`November, 2021.
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`/s/ Bethany R. Salpietra
`Bethany R. Salpietra
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`Case 2:21-cv-00072-JRG-RSP Document 232 Filed 11/22/21 Page 8 of 8 PageID #: 7855
`Case 2:21-cv-00072-JRG-RSP Document 232 Filed 11/22/21 Page 8 of 8 PagelD #: 7855
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