Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 1 of 33
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`ANCORA TECHNOLOGIES, INC.
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`* CIVIL ACTION NO. AU-20-CV-34
`SAMSUNG ELECTRONICS CO., LTD, *
` ET AL
`*
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`VS.
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`March 17, 2021
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`LG ELECTRONICS, INC., ET AL
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`BEFORE THE HONORABLE ALAN D ALBRIGHT, JUDGE PRESIDING
`TELEPHONIC DISCOVERY HEARING
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`APPEARANCES:
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`For the Plaintiff:
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`For Defendant LG:
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`Lexie G. White, Esq.
`Susman Godfrey LLP
`1000 Louisiana Street, Suite 5100
`Houston, TX 77002
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`Andres Healy, Esq.
`Steven M. Seigel, Esq.
`Nicholas S. Crown, Esq.
`Susman Godfrey L.L.P.
`1201 Third Avenue, Suite 3800
`Seattle, WA 98101
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`Charles L. Ainsworth, Esq.
`Robert Christopher Bunt, Esq.
`Parker, Bunt & Ainsworth, P.C.
`100 East Ferguson, Suite 418
`Tyler, TX 75702
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`Andrew Thompson Gorham, Esq.
`Gillam & Smith LLP
`102 N. College, Suite 800
`Tyler, TX 75702
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`Elizabeth M. Chiaviello, Esq.
`Winstol D. Carter, Jr., Esq.
`Morgan Lewis and Bockius LLP
`1000 Louisiana Street, Suite 4000
`Houston, TX 77002
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`ANCORA TECHNOLOGIES, INC.
`
`*
`*
`*
`*
`
`*
`* CIVIL ACTION NO. AU-20-CV-34
`SAMSUNG ELECTRONICS CO., LTD, *
` ET AL
`*
`
`VS.
`
`March 17, 2021
`
`
`LG ELECTRONICS, INC., ET AL
`
`
`
`1 2 3 4 5 6 7 8 9
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT, JUDGE PRESIDING
`TELEPHONIC DISCOVERY HEARING
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`APPEARANCES:
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`10
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`For the Plaintiff:
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`For Defendant LG:
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`Lexie G. White, Esq.
`Susman Godfrey LLP
`1000 Louisiana Street, Suite 5100
`Houston, TX 77002
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`Andres Healy, Esq.
`Steven M. Seigel, Esq.
`Nicholas S. Crown, Esq.
`Susman Godfrey L.L.P.
`1201 Third Avenue, Suite 3800
`Seattle, WA 98101
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`Charles L. Ainsworth, Esq.
`Robert Christopher Bunt, Esq.
`Parker, Bunt & Ainsworth, P.C.
`100 East Ferguson, Suite 418
`Tyler, TX 75702
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`Andrew Thompson Gorham, Esq.
`Gillam & Smith LLP
`102 N. College, Suite 800
`Tyler, TX 75702
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`Elizabeth M. Chiaviello, Esq.
`Winstol D. Carter, Jr., Esq.
`Morgan Lewis and Bockius LLP
`1000 Louisiana Street, Suite 4000
`Houston, TX 77002
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 2 of 33
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`For Defendant Samsung:
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`Court Reporter:
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`Robert T. Haslam, Esq.
`Anupam Sharma, Esq.
`Covington & Burling LLP
`3000 El Camino Real
`5 Palo Alto Square, 10th Floor
`Palo Alto, CA 94306
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`Kristie M. Davis
`United States District Court
`PO Box 20994
`Waco, Texas 76702-0994
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`Proceedings recorded by mechanical stenography, transcript
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`produced by computer-aided transcription.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 3 of 33
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`(March 17, 2021, 10:10 a.m.)
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`DEPUTY CLERK: Court calls Austin Case 1:20-CV-34,
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`Ancora Technologies, Inc. versus LG Electronics, Inc., et al,
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`for a motion hearing.
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`THE COURT: Good morning, everyone. If I could hear
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`announcements from counsel, starting with the plaintiff,
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`please.
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`MR. AINSWORTH: Yes, Your Honor. This is Charley
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`Ainsworth for Ancora Technologies. Along with me is Lexie
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`White, Andres Healy, Steve Seigel, Nick Crown, Chris Bunt, and
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`our client, Miki Mullor.
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`THE COURT: Good morning, Mr. Ainsworth. I'd like to
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`thank your client for taking the time to attend. I appreciate
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`that.
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`And, Mr. Haslam, do I get the privilege of hearing from
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`you this morning?
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`MR. HASLAM: Yes, you do, Your Honor.
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`THE COURT: Welcome.
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`MR. HASLAM: It's my privilege.
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`THE COURT: Have you gotten your shots?
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`MR. HASLAM: I've gotten one.
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`THE COURT: Okay. Good for you.
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`MR. HASLAM: Tomorrow I get the second.
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`THE COURT: I'm getting one -- I finally aged up in Texas.
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`I now qualify, and I'm getting one on Monday. So it's --
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 4 of 33
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`that's good.
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`MR. HASLAM: Good. First one wasn't bad, but I've been
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`told the second one may hurt.
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`THE COURT: I'm told the second one, if it is effective,
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`will make you not feel good for a day or two. And so in that
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`regard I hope you don't feel well for a day or two.
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`(Laughter.)
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`MR. HASLAM: At least it'll be tomorrow.
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`THE COURT: Yes.
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`Who all will be -- is appearing on behalf of your client?
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`MR. GORHAM: Your Honor, this is Tom Gorham with Gillam &
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`Smith. Also for the Samsung defendants is Anupam Sharma. Bob
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`will be presenting -- Mr. Haslam will be presenting this
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`morning as he indicated. We have our client representatives
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`Julie Han, Eric Cha and Jae-il Park.
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`THE COURT: I'd like to thank them as well for attending
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`this morning. And I apologize for running late on that first
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`hearing. And so I'm happy to hear whatever y'all would like to
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`take up.
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`MS. WHITE: Your Honor, if we could, I believe there's one
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`matter set on the agenda which is Ancora's motion to transfer
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`to Waco.
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`THE COURT: Okay.
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`MS. WHITE: And I can address that briefly, Your Honor. I
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`can tell from --
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 5 of 33
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`THE COURT: Remind --
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`MS. WHITE: Yes, Your Honor?
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`THE COURT: I'm sorry. Remind me, when is the trial set?
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`MS. WHITE: It shows on Your Honor's calendar for
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`April 26th. I believe the scheduling order had it for
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`April 19th. And I should clarify this is just the Ancora
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`matter against Samsung that we're moving at this time to
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`transfer to Waco.
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`The separate matter that Ancora has against LG is set for
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`trial in June. And our motion today is not requesting to
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`transfer that case at this time.
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`THE COURT: Well, let me tell you all this, and I'm sorry
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`to do this at this point. It might be better for us to take
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`this up in just another week or so.
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`Right now I think we are in flux with what's going to
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`happen in Austin. I know that they are going to be closed in
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`April for sure. That's not -- there's no question about that.
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`And it is unclear to me whether or not when they open
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`in -- if they open, and it's unclear they will open in May. It
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`is unclear to me if the courts open in Austin in May whether
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`they mean to have trials or not in May, or whether that just
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`means they might start having in-person hearings or doing other
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`things.
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`And so it would probably be more informative to you all
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`and to me to wait maybe just a week. And I will be able to
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 6 of 33
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`press the judges in Austin to know what they're planning to do.
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`Right now I know only that April is closed but not beyond that.
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`And, for example, I would tell you if -- let me add to
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`that and I'll say this. It is less clear to me -- and this is
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`for the benefit of the Samsung people as well. It is less
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`clear to me that I can have as safe a trial in the Austin
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`courthouse as I can have right now in the Waco courthouse.
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`We've done it in the Waco courthouse.
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`I'll put all this on the record. One nice thing about the
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`Waco courthouse is that it's only three stories tall. So you
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`only have to go up two stories, and you don't have to use an
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`elevator. That's a good thing.
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`My courthouse -- my courtroom is much larger than any
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`courtroom in Austin other than the ceremonial courtroom, and so
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`that might be an option that we could use in Austin.
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`That would be -- the ceremonial courtroom in Austin is
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`also on the first floor, and they have a large room just around
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`from the first floor in Austin where the jury could sit. So
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`that would be a good thing if we could use -- do that.
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`But I'm not certain what the Austin judges would think
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`about us having a jury trial even if the courthouse is
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`technically open in May. I just don't know. For sure it's
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`closed in April.
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`And so I think we would be better off waiting and having
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`this hearing in a week. And typically -- let me -- tell me --
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 7 of 33
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`you said the 26th?
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`MS. WHITE: Yes, Your Honor.
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`THE COURT: Let me ask you this: I'll start with you.
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`If because Austin was not available in April, and they're
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`not, and they would not be available for trial in May, which
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`would probably tend to make me want to transfer the case to
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`Waco if I let you all know -- and by the way, for the Samsung
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`folks, I'm not saying what I'm going to do. I'm trying to get
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`logistics here.
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`If we were to have this hearing -- I don't know what today
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`is. The 18th. I think -- if we were to have this -- that
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`would be a full month out. Would you all be able to get hotel
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`rooms and everything in Waco for the trial on the 26th?
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`MS. WHITE: We've currently reached out to hotels in Waco
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`and have been told we need to let them know this week if we're
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`going --
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`THE COURT: This week?
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`MS. WHITE: -- if they're going to hold our block of
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`rooms.
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`THE COURT: Okay.
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`MS. WHITE: We're at the Court's pleasure. This is purely
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`a practical request by us. Our biggest concern is to get the
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`case to trial as quickly and as safely as possible which is
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`motivating our request to transfer to Waco.
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`And I'm happy to return in a week if Your Honor would like
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 8 of 33
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`us to. But I believe we can address it very quickly, and we're
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`all here. If you would prefer, I can just make our arguments,
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`and then, Your Honor, if you think it makes sense to wait a
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`week even to rule on the request --
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`THE COURT: Well, so here's what -- but here's what I'm
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`thinking.
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`We're going to try this case either the week of April 26th
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`or early May. And so if that's -- if that's the plaintiff's
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`concern, we are -- what I'm saying is this: If they tell me
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`that we can go to trial in Austin the first week of May, then
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`I'll figure out a way -- I don't know what I have in May. I'll
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`have to move, I'm sure, something else around, then that's what
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`I would do.
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`And I would maintain the jurisdiction in Austin because I
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`am with you. I just want to get the case to trial. I'm not
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`trying to get it to trial in Waco. I'm trying to get it to
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`trial.
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`If I'm told by the folks in Austin that they're not going
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`to have trials in May, or certainly they don't want to have a
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`trial of this size that would have this many folks attending --
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`and I have a little experience in these larger trials now from
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`a couple of weeks ago. We're going to get the case tried
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`either late April or early May.
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`If by doing it in early May it means I can do it in
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`Austin, and I can do it safely in Austin, I'm going to do it in
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 9 of 33
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`Austin, which I think, unless Samsung's position is they don't
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`want to have the trial at all in either April or May, I think
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`should satisfy everyone.
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`But -- so let me start with Mr. Haslam and just get his or
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`whoever for Samsung, what your position is with us just getting
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`to trial. But I'm -- we're going to get to trial, and if I can
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`do it in Austin, I will. If I can't, then I would move it to
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`Waco.
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`MR. HASLAM: First of all, I hear what the Court's
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`concerns are. And I guess our position is as stated in the
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`papers. This is a case that we believe is governed by Atlantic
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`Marine.
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`THE COURT: Okay.
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`MR. HASLAM: And just to reiterate some of the things that
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`the Supreme Court said in Atlantic Marine is
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`that enforcement --
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`THE COURT: Well, hold on. I just -- I want to hear right
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`now about your position --
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`MR. HASLAM: Position? If we --
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`THE COURT: -- with timing. And if we're going to go into
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`Atlantic Marine, I'll go back, and I'll let the plaintiff tell
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`me why they think it ought to be transferred.
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`MR. HASLAM: All right. Okay.
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`THE COURT: I'm trying to -- I would prefer to have it in
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`Austin if I can. But I'm not sure I'm going to do -- be able
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 10 of 33
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`to do that any time soon.
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`MR. HASLAM: Okay. Well, to me there's -- if we can try
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`it in Austin in April, that's fine. If we can try it in May in
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`Austin, that's fine. If it takes trying it in June, I do not
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`see that the extraordinary circumstances which would dictate
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`that a trial in April or May is necessary when the possibility
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`is we could try it in June.
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`The patent's expired. This is just a money case. They're
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`not a competitor. They don't make products. So --
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`THE COURT: Well, Mr. Haslam, let me remind you while it
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`may be convenient for you all, I've got some other things set
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`in June. And I've got -- I mean, in other words, I don't --
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`I'm not just waiting for this dance card to be filled up with
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`you, as attractive as you all are, to get to try the case.
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`I mean, I think I am triple-booked every week for the rest
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`of the year with trials. And that's without criminal trials,
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`which we don't have many of. That's not been a big problem.
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`But it's -- I don't have as much liberty to just say, we
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`can do it in June. June's a real problem for me. And
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`that's -- but I'm just saying, I get it. We're all trying to
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`do the best we can.
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`MR. HASLAM: Well, frankly, whether it's June or July or
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`May is not the be-all and end-all, given the stipulation that
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`the parties entered into, I guess, is -- that's our view. We'd
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`like to get it to trial in Austin as soon as possible, and
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`
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`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 11 of 33
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`that's our position.
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`If it's in May, that's great. If it were in June, great.
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`If it were in July, great. But we believe we had a bargain,
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`and we want to stick to the bargain.
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`THE COURT: Got it. And certainly let me hear from
`
`plaintiff in response to that.
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`MS. WHITE: Thank you, Your Honor.
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`It may be helpful context to understanding the opposition
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`to this request to know that while Samsung is writing in its
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`papers that trial can be imminently held in Austin, it is
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`telling the PTAB the opposite. It is telling the PTAB that the
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`trial date is "highly uncertain in this case" as grounds for a
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`parallel IPR request that Samsung is making right now.
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`We believe that the question in our motion is
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`straightforward, and it's one that the Court has considerable
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`discretion to answer as the Federal Circuit has recently
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`confirmed.
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`The question here, and I want to be concrete about what it
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`is, is whether it is appropriate to transfer this matter from
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`one division to another division, both of which are in a
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`district where venue is proper, where the requested
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`intra-district transfer to Waco is in fact more convenient for
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`Samsung's only live, will-call company witness, and the
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`transfer will alleviate the concerns Your Honor has already
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`10:24
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`articulated --
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`
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`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 12 of 33
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`THE COURT: And who is that witness?
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`MS. WHITE: His name is -- I'm probably going to
`
`mispronounce it, and I apologize, Shoneel Kolhatkar.
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`THE COURT: And he is in?
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`MS. WHITE: In Richardson. So he would actually have to
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`drive through Waco on to Austin, most likely could drive every
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`day from his home to a trial in Waco, probably would be getting
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`a hotel room for a trial in Austin.
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`But, Your Honor, you heard about the stipulation. Samsung
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`doesn't really present any facts to support its suggestion that
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`the Western District of Texas was an improper forum that it
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`would have moved to transfer out of, and it couldn't. There's
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`a good reason. And I don't think this was clear from our
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`paper, so I want to make it very clear now.
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`Long before the stipulation that Mr. Haslam mentioned,
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`Samsung actually admitted that venue is proper as to SEC, the
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`Korean parent company, and as to SEA, the American subsidiary.
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`Samsung had already waived its improper venue objection by
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`answering the complaint without filing a motion under Federal
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`Rule 12(b)(3).
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`So the suggestion that this stipulation somehow prejudiced
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`Samsung, that it didn't get the benefit of its bargain, that it
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`would have filed a motion to transfer venue or pursued that
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`objection is just wrong. That ship had sailed months before
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`the parties agreed to a practical transfer to avoid burdening
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`
`
`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 13 of 33
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`the Court with unnecessary motion practice.
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`The only question this case was ever going to raise is one
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`of convenience. And now we know, because we're not
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`shadowboxing like you do in the beginning of the case and guess
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`which witnesses are going to be called live. We've exchanged
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`witness lists. We know that Samsung has just one live,
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`will-call company witness, and Waco is clearly more convenient
`
`for them.
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`The other private and public interest factors are either
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`neutral or they support transfer, including the time to trial
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`and the Court's own docket. And Samsung's response to all of
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`this is what you heard just now, that the Court should ignore
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`it, the Court should ignore the private and public interest
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`balance because Ancora agreed to a convenience transfer to
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`Austin long before anybody had heard about COVID-19.
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`An agreement like this one, to transfer a case on
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`convenience grounds, Your Honor, is not a forum selection
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`10:26
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`clause. This is very clear from the cases that Samsung relies
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`on, Atlantic Marine and its progeny in the Fifth Circuit.
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`10:27
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`The threshold question in these cases, and the best case
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`10:27
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`that lays this out as she always does, is Judge Rosenthal's
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`10:27
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`opinion in the Parker case. She does a deep dive into this
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`23
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`case law, and she says the threshold question that you have to
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`10:27
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`answer is whether the language at issue was permissive or
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`10:27
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`mandatory.
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 14 of 33
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`And when you look at the examples of what the Courts have
`
`found constitutes a mandatory forum selection clause -- that
`
`means you throw the private and public interest factors and the
`
`Court's own discretion out the window -- they are so far out of
`
`the ballpark of what we're talking about in this case that it's
`
`clear they're inapplicable.
`
`A clause, as Judge Rosenthal tells us in the Parker case,
`
`interpreting Atlantic Marine and all of the Fifth Circuit
`
`progeny, it has to do more than merely establish, as this
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`agreement did, that one forum can have the case, or that one
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`forum can have jurisdiction, or that a party consents to have
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`10:28
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`the case transferred to a forum.
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`And this is a direct quote from Parker, "a clause mandates
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`the specified forum only when its language clearly communicates
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`that all litigation will occur only in that forum."
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`10:28
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`When you look at the agreement here, the stipulation, its
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`language literally says, and I'm reading it, "Ancora, LG and
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`10:28
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`Samsung, through each's respective counsel, hereby jointly
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`10:28
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`stipulate to the entry of an order transferring the case to the
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`Austin division. Defendants further stipulate that they waive
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`their right to object to venue or move to transfer it back."
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`10:28
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`It does not say what Mr. Haslam needs it to say to make
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`10:28
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`the argument he's making, that Ancora waives its right to file
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`this motion based on unforeseen circumstances that no one could
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`have predicted to have the case transferred so that it can be
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 15 of 33
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`timely tried.
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`An agreed or stipulated transfer like this is not a
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`mandatory forum selection clause. There is not one case
`
`interpreting Atlantic Marine that is on all fours with this
`
`agreement to transfer to avoid motion practice.
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`Now, the remaining public and private interest factor
`
`analysis I can go through, Your Honor. We detailed it in our
`
`briefing, but there are just a few key factors that guide the
`
`Court's analysis here.
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`On the private interest factors, the factor that
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`references the practical problems that make trial of a case
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`easy, expeditious and inexpensive, the bottom line is, at least
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`for the time being, Waco is open. Austin is not.
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`It will be more expeditious, and since cost increases as
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`10:29
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`time increases, it will be less expensive to hold the trial
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`10:29
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`date and try the case where we can in light of the pandemic.
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`10:30
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`Also, the convenience or cost of attendance for willing
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`10:30
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`witnesses. There is only -- everybody's a paid expert, other
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`10:30
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`than our client who is happy to come to Waco, or Samsung's only
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`live, will-call witness for whom it is clearly more convenient
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`to hold the case in Waco. He would have to drive through it to
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`get to Austin.
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`10:30
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`Samsung hasn't identified a single fact that would bear on
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`10:30
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`the other factors and cause them to weigh against this
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`10:30
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`transfer. They are either neutral or they support transfer.
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 16 of 33
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`16
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`Now, on the public interest factors, the most important of
`
`those is the administrative difficulties from Court congestion.
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`And that, for the reasons Your Honor has already articulated,
`
`weighs heavily in favor of transfer.
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`Samsung has not identified any facts that would bear on
`
`the other factors. They are relying exclusively on Your Honor
`
`to interpret Atlantic Marine, to throw the public and private
`
`interest factor balance out the window, and that is simply not
`
`supported with a permissive transfer language like this.
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`Your Honor, even if that weren't true, even if Atlantic
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`10:31
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`Marine applied here, which it doesn't, this is one of those
`
`10:31
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`
`cases where the Court would still retain discretion. And the
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`10:31
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`cases are clear that even where there is a mandatory forum
`
`10:31
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`14
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`selection clause, not the case here, but even if there were,
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`10:31
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`the Court would still retain discretion to transfer a case
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`10:31
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`where there is a highly unusual circumstance, such as a global
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`10:31
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`17
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`pandemic that has the courthouse literally closed in the forum
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`10:31
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`where the parties agreed to transfer it. And here that
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`10:31
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`circumstance would also weigh in favor of transfer.
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`10:31
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`But the bottom line is the analysis is very
`
`10:31
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`straightforward. It is fundamentally the same issue the Court
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`10:32
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`22
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`has already confronted in the VLSI case, where the same factors
`
`10:32
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`23
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`were in play, where the Federal Circuit reviewed that analysis,
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`10:32
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`and the factors are even stronger here where you actually have
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`10:32
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`25
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`only one live, will-call witness who would have to travel
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 17 of 33
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`17
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`farther to trial in Austin.
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`So for all of those reasons, Your Honor, we would request
`
`a transfer.
`
`THE COURT: Yeah. I found it interesting in one of my --
`
`in my first trial where there had been a motion to transfer to
`
`California, and all of the corporate witnesses were from Austin
`
`or someplace much closer to Texas, and all of the people who
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`had been listed as likely witnesses in the motion to transfer,
`
`none of them ever appeared. So there is something interesting
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`10:32
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`to me about once we are -- once we're looking right now, and we
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`know who the witnesses are, we have a pretty good idea of
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`convenience.
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`10:33
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`Mr. Haslam, let me tell you what most concerned me though
`
`10:33
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`of what I heard, which is: Is Samsung making representations
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`10:33
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`to the PTAB about the problem -- the issues with whether or not
`
`10:33
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`there's going to be a trial?
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`10:33
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`MR. HASLAM: In the joinder -- let me just talk about the
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`10:33
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`PTAB proceeding.
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`10:33
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`This is a proceeding filed by TCL which was another
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`10:33
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`defendant in one of the many cases that Ancora has filed, and
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`10:33
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`that was instituted recently. And immediately after the
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`10:33
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`institution, Ancora and TCL settled. And I guess, technically,
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`10:33
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`the terms are confidential, but they settled for less than
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`10:33
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`peanuts.
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`10:33
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`25
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`(Laughter.)
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 18 of 33
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`MR. HASLAM: There are several parties who are seeking to
`
`join, and the issue has been raised that the timing of trial in
`
`this case or any of the cases is uncertain, given the COVID.
`
`And as this Court just recently in its order in the
`
`Tracfone case indicated, the time to trial is one of the most
`
`speculative of all of the factors when you consider 1404(a)
`
`transfer positions.
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`So we have said that there is uncertainty, as clearly
`
`there is not only with this court but with other Courts that
`
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`10:33
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`10:34
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`have shut down. When will trials begin?
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`But whether we can join or not, or whether Sony, who has
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`just sought to join that, or whether LG which has sought to
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`10:34
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`join it or any of the other defendants have sought to join that
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`10:34
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`IPR, it's either going to get dismissed because of the
`
`10:35
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`
`resolution with TCL, or it's going to proceed whether or not
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`10:35
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`Samsung is a party to it.
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`10:35
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`And to me that's irrelevant. Because I don't believe even
`
`10:35
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`prognosticating the future, which is difficult, that we aren't
`
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`going to be able to get to trial before the one-year period
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`10:35
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`where that initial ruling comes out, and then it's got its own
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`separate track. So --
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`THE COURT: I guess my concern is, and maybe it shouldn't
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`10:35
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`be one, but, you know, I keep up a little bit with what's going
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`10:35
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`on in the PTAB, and I know that there is a big -- a lot of
`
`10:35
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`25
`
`attention being paid right now to trial -- when trials are
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 19 of 33
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`19
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`being held.
`
`And there's -- but there are also arguments being made,
`
`partly because of COVID but partly not, that, you know, the
`
`judges, including -- who are handling patent cases like me,
`
`that representations are being made to the PTAB that "Albright
`
`is setting these, but he's not really going to make it." Or
`
`"he sets them, and then he moves them," and then a case like
`
`this gets cited as something where I'm not holding trial dates
`
`or maintaining trial dates.
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`10:35
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`10:36
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`10:36
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`And I don't know that it's correct publicly that when
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`10:36
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`11
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`parties are moving for me to move a trial date, and then
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`10:36
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`12
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`it's -- the intimation is given to the PTAB that the trial
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`10:36
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`13
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`dates aren't firm. They're certainly firm as far as I'm
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`10:36
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`14
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`concerned. If the parties are -- unless both parties come in
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`10:36
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`15
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`and want to move it, you know, I don't think I've moved trials.
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`10:36
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`16
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`So, I mean, it's just -- you know, it's in some says
`
`10:36
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`17
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`neither here nor there. I just want to make -- I am curious as
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`10:36
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`18
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`to what's being represented about my trial docket.
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`10:36
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`19
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`MR. HASLAM: Well, Your Honor, it -- the fact of the
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`10:36
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`20
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`matter is, through no fault of anyone, last year's trial
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`10:37
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`21
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`schedule got knocked to hell. So simply pointing out to the
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`10:37
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`22
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`PTAB that it isn't clear whether a date that was set in
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`10:37
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`23
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`December of last year is going to hold, I don't think --
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`10:37
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`24
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`THE COURT: That's true.
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`10:37
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`25
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`MR. HASLAM: -- we're necessarily saying something that
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`
`
`Case 1:20-cv-00034-ADA Document 189 Filed 03/20/21 Page 20 of 33
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`20
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`was untoward. It was basically stating a fact.
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`All we're -- and as the Court said, you've got three cases
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`stacked up each day. Well, some of those aren't going to go.
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`And simply noting to the PTAB that this Court, as other Courts
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`who are now trying to dig out of, for some of them, almost a
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`one-year backlog of cases, it's -- not all the trial dates that
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`are set are going to go forward on those dates through no fault
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`of anybody's, and through no fault of the parties, and t
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