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` UNITED STATES DISTRICT COURT
` WESTERN DISTRICT OF TEXAS
` AUSTIN DIVISION
`INTELLECTUAL VENTURES,
`) Docket No. A 19-CA-1075 ADA
`LLLC
`)
` )
`vs.
` ) Austin, Texas
` )
`VMWARE, INC.
`) January 31, 2020
`----------------------------------------------------------
` UNITED STATES DISTRICT COURT
`
`
` WESTERN DISTRICT OF TEXAS
`
` WACO DIVISION
`PARUS HOLDINGS, INC.
`) Docket No. A 19-CA-432 ADA
`
`)
`vs.
` ) Waco, Texas
` )
`APPLE, INC., ET AL
`) January 31, 2020
`
`
` TRANSCRIPT OF MOTION HEARING
` BEFORE THE HONORABLE ALAN D. ALBRIGHT
`APPEARANCES:
`For Intellectual
`Ventures:
`
`Mr. Jonathan DeBlois
`Mr. Robert R. Gilman
`Prince, Lobel, Tye, LLP
`One International Place
`Boston, Massachusetts 02110
`Mr. Derek T. Gilliland
`The Sorey Law Firm
`109 West Tyler Street
`Longview, Texas 75601
`Mr. Andrew H. DeVoogd
`Mr. Michal J. McNamara
`Mintz, Levin, Cohn, Ferris,
`Glovsky and Popeo, P.C.
`One Financial Center
`Boston, Massachusetts 02111
`Ms. Katherine Kelly Vidal
`Winston & Strawn, LLP
`275 Middlefield Road, Suite 205
`Menlo Park, California 94025
`
`For Parus Holdings:
`
`For VMware, Inc.:
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`2
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`(Appearances Continued:)
`For Apple, Inc.:
`
`Ms. Bita Rahebi
`Morrison & Foerster, LLP
`707 Wilshire Boulevard,
`Suite 6000
`Los Angels, California 90017
`Mr. J. Stephen Ravel
`Kelly, Hart & Hallman, LLP
`303 Colorado Street, Suite 2000
`Austin, Texas 78701
`Mr. Darin W. Snyder
`O'Melveny & Myers, LLP
`Two Embarcadero Center,
`28th Floor
`San Francisco, California 94111
`Mr. Stephen Burbank
`Scott, Douglass, McConnico
`303 Colorado Street, Suite 2400
`Austin, Texas 78701
`For Samsung Electronics: Ms. Victoria E. Maroulis
`Quinn, Emanuel, Urquhart, Oliver
`& Hodges, LLP
`555 Twin Dolphin Drive, 5th Floor
`Redwood Shores, California 94065
`Mr. Barry K. Shelton
`Shelton Coburn, LLP
`311 RR 620 South, Suite 205
`Austin, Texas 78734
`Mr. Ravi Ranganath
`Fenwick & West, LLP
`801 California Street
`San Francisco, California 94041
`Ms. Lily Iva Reznik, CRR, RMR
`501 West 5th Street, Suite 4153
`Austin, Texas 78701
`(512)391-8792
`
`Court Reporter:
`
`
`For Google, LLC:
`
`For Amazon.Com, Inc:
`
`Proceedings reported by computerized stenography,
`transcript produced by computer.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`THE CLERK: Motion hearing in Civil Actions
`1:19-CV-1075, styled, Intellectual Ventures I and II, LLC
`vs. VMware, Incorporated, Civil Case No. W-19-CV-432,
`styled Parus Holdings, Incorporated vs. Apple,
`Incorporated, and Civil Action No. W-19-CV-612, styled
`Gabriel De La Vega vs. Microsoft Corporation.
`THE COURT: Good morning, everyone. All my
`favorite lawyers in one place. How lucky can I get. I
`shouldn't even get paid to have to work today.
`If you all would be so kind as to start off and,
`I guess, if you -- we can go in the order that Suzanne
`just called the cases. We'll start with IV vs. VMware,
`Inc., and if the lawyers would address and identify
`themselves. Josh is already telling me something I need
`to do. So I try and do everything that Suzanne and Josh
`tell me to do.
`So if I could hear from the IV lawyers and then,
`from the lawyers for VMware.
`MR. GILLILAND: Your Honor, Derek Gilliland on
`behalf of IV, and with me today is Bob Gilman and John
`DeBlois. And also in the gallery is representative of IV
`Chuck Ebertin. We're ready to proceed.
`THE COURT: And, Mr. Gilliland, who will be
`speaking on y'all's on behalf?
`MR. GILLILAND: Mr. Gilman will be arguing for
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`4
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`IV.
`
`Or.
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`THE COURT: Mr. Ravel, your at least up front.
`
`MR. RAVEL: I'm in the next case, Parus against
`Apple. And for Apple is Bita Rahebi and me. We'll be
`splitting the argument. And our client, Natalie Pous, in
`from Cupertino.
`THE COURT: And immediately behind you is?
`MS. VIDAL: Kathy Vidal. I'm here with William
`Logan, my colleague, representing VMware. And in the
`gallery is my client, Danielle Coleman, from VMware.
`THE COURT: And, Ms. Vidal, who will be speaking
`on behalf of VMware?
`MS. VIDAL: I will, your Honor.
`THE COURT: Very good.
`Okay. Well, then, let's start with that case.
`Before we hear from the lawyers, let me tell you a couple
`of things that you probably have all heard me say in the
`past about these general issues. More notes? Okay.
`Suzanne tells me there's an attorney I need to have sworn
`in. If that's true, just let me know whenever that case
`comes up, and I'll be happy to do that.
`Couple of things I just generically feel about
`the arguments on infringement, contributory infringement,
`willful infringement, and some of the others, in terms of
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`5
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`notice. Number one is, I don't -- you know, I don't feel
`like -- I'm not often going to be persuaded by an argument
`that -- I'm just picking out until I'm not even sure --
`I'll pick on anyone who's here, Microsoft or anyone. The
`fact that they may have gone and gotten a patent and
`somewhere in one of those patents, they identify the
`patent that is being is asserted, that's not going to be
`good enough to me for actual notice. I think there
`actually needs to be some kind of formal notice. And it
`might not have to be the old-fashioned send a letter,
`notice, or anything like that, but there actually needs to
`be some notice of an awareness of the patent for the
`period to begin running.
`That being said, I know that many on the
`plaintiff's side of the bar would be concerned, you know,
`about the information they have when they file pleadings,
`their ability to do this. And if they don't make the --
`if they don't make the accusation in the initial pleading,
`a fear that they won't be able to make the accusation.
`I want to ensure everyone in here that the way I
`see it is, there will be a period of time after the
`Markman, once the discovery begins, where it will be a
`relatively short period of time, probably about three
`months, but you will -- the plaintiffs will have a
`baked-in period of time in every case where they can take
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`
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`6
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`discrete discovery on the issue -- these specific issues,
`and if they determine that there was knowledge of the
`patent, then leave will be given -- granted very liberally
`and allow -- to allow the plaintiffs to amend their
`pleadings, as long as they get it done quickly enough
`during the discovery period of time to allow additional
`discovery to take place on behalf of the defendants.
`But I'm not going to be receptive to defendant
`saying, they should have pled it originally because we
`have a lot of lawyers here who are unhappy that it was
`pled in the initial pleadings. And so, I'm thinking
`that's the better way to do it.
`So, Mr. Gilman, having -- or, actually, I guess,
`Ms. Vidal, it's your -- it will be y'all's motions, but
`that's the context I see all in this is sort of a
`balancing of issue. And I will tell you that there may be
`slightly more weight on the plaintiff's side to explain to
`me why it makes a difference that you all are able to
`maintain an accusation or an allegation of willfulness or
`the other issues that we're here for.
`If you know that I'm going to give you the
`opportunity to -- Mr. Gilman, I'm sorry, I'm picking on
`you. I'm looking at you, but it's true for all the
`plaintiffs. As long as you are aware that I'm going to
`make -- give you the opportunity to establish, for
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`7
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`example, willfulness and give you an opportunity to amend
`your pleadings, one of my favorite sayings when people
`argue in front of the Supreme Court is, I'm not sure it's
`worth the candle. I'm not even sure I know exactly what
`that means, but it's a cool phrase, and I think it applies
`here. I'm not sure why it's worth a candle to be fighting
`over all this. So that's my general perspective.
`So with all that background, Ms. Vidal.
`MS. VIDAL: Thank you, your Honor. With that
`background, I believe I can rest.
`THE COURT: You are probably pretty close to it.
`Really, what I'm most interested in and the reason I set
`the hearing in this manner and have as many of these cases
`as possible is, I thought, you know, my perspective --
`getting my general perspective out to really good
`plaintiff's lawyers, to really well-established
`plaintiff's groups like Intellectual Ventures, really good
`defense lawyers. Some of my all-time favorites are
`sitting over here.
`And I guess I can't say Stephen Burbank is my
`favorite clerk since Josh is sitting in front of me, but
`I'll say that he was my favorite former clerk.
`But part of the reason of having this many people
`attend -- and it's great the corporate representatives are
`here -- is to get across my general philosophy. So, you
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`8
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`know, frankly, it might be better for me to hear from Mr.
`Gilman, after everything I've said, about what his
`thoughts are about what IV would like to do unless you
`have something you'd like to say.
`MS. VIDAL: If you'd like me to create a record
`on the five patents, I'm happy to, but if it's --
`THE COURT: We've been through all of them. Josh
`and I have spent a lot of time getting ready for this
`hearing, and so, I don't think it's necessary for the
`record; and it won't help me because Josh and I have gone
`-- we've gone through all the stuff pretty carefully.
`MS. VIDAL: And, your Honor, one other thing.
`THE COURT: Yes, ma'am.
`MS. VIDAL: Your chambers brought the Romag
`decision to our attention. Is there something that you
`wanted us to address on that, or was that for other
`defendants and plaintiffs?
`THE COURT: No.
`Generally speaking, I was listening to the oral
`arguments and I -- and I worried about sending it out
`because at least some you would say he doesn't even
`realize it's a trademark case and I did. And so, I get
`that. But when I heard, I think it was, Justice
`Kavanaugh -- pretty sure it was Kavanaugh. He was
`articulating issues about what -- you know, for
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`9
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`willfulness, what willfulness means in terms of actual
`knowledge.
`I think that that -- the way he was asking it, I
`don't know at least in his mind or some of the other
`justices that they would really see it much in difference
`in terms of the willfulness standard between the different
`IP groups. And it sounded to me like an indication from
`at least one justice what he thought actual knowledge
`might -- sufficient knowledge might be.
`So I just wanted you all to have heard, you know,
`be aware of that, as well, because I think that's -- as a
`lower court, I think I should be informed by what those
`cases that are going on, and I thought you guys just ought
`to be aware of that.
`MS. VIDAL: And I appreciate that. Since
`willfulness is not in our case, I'll leave that to the
`other counsel to address.
`THE COURT: I mean, y'all have better lives than
`I do because you probably don't walk around listening to
`Supreme Court arguments in Waco. But that's what you have
`to do in Waco is listen to Supreme Court arguments. And
`so, I thought it was informative. No. That's it.
`MS. VIDAL: Thank you, your Honor.
`THE COURT: Mr. Gilman.
`MR. GILMAN: Thank you, your Honor. Bob Gilman
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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`for Intellectual Ventures.
`Yeah, given the comments you made just now, I
`think we agree with you, it's not worth the candle. You
`know, frankly, our biggest concern through this motion
`practice is that we're able to obtain discovery. You
`know, we're going to get up here and argue that the better
`procedural way to handle this is to not dismiss it and
`deal with it. You know, as I think you recognized a
`little bit in the Parity case, it's the scope of the
`damage should be a factual issue.
`But, really, if this is the way we're going to
`proceed but we're going to be able to get discovery on
`some items, even some things we discovered after filing
`the complaint on our own that lead us to believe that we
`might find something in VMware discovery that would show a
`notice date before the filing of the patent in suit. If
`we could get that discovery, I think we're fine.
`THE COURT: And, actually, you said it better
`than I did, which is pretty typical of the way things go
`here.
`
`But, actually, one of the things I was also
`trying to intimate was, I would not be receptive to having
`defendants tell plaintiffs, you can't ask discovery on the
`issues of willfulness or a factual underpinning of direct
`and indirect -- any of the others because you didn't --
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
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`Case 6:19-cv-00432-ADA Document 107 Filed 02/19/20 Page 11 of 54Case 6:21-cv-00569-ADA Document 14-3 Filed 08/13/21 Page 12 of 55
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`it's not alleged, so we're not going to answer it. That
`would be very poorly received by me.
`I think the much better way of doing it is to --
`if you have a case where there is actual notice and I
`think there's one here where either, you know, we have
`that or close to that situation, then obviously that's
`fine.
`
`But I think I agree with, you know, having done
`cases on both sides, I can appreciate why, for example,
`Apple doesn't want to have these allegations that may or
`may not be substantiated in the original complaint or even
`amended complaint; but at the same time, they should not
`to not have to provide you with discovery because you
`didn't plead it in the initial complaint or the amended
`complaint.
`So yes, you would -- within reason, you would be
`-- have total access to discovery to establish these other
`claims.
`
`MR. GILMAN: All right. That's appreciated, your
`Honor. If we walk out of here having that statement, then
`I think, you know.
`THE COURT: I think I speak a fair amount, and
`that's one of the things I always try to get across is,
`that's my view on discovery. And for those of you who
`have not been in front of me before on other matters,
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`
`
`Case 6:19-cv-00432-ADA Document 107 Filed 02/19/20 Page 12 of 54Case 6:21-cv-00569-ADA Document 14-3 Filed 08/13/21 Page 13 of 55
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`either, with regard to discovery, I'm a very hands-on
`judge. And my attitude is, for example, I'm not saying
`there will be a problem, but let's say -- I'm just using
`you because you're first up.
`Were you to have sent something to Apple or
`someone else and, you know, my -- number one, my
`expectation is that you oughta do whatever you need to do
`to protect your client's rights and be as aggressive as
`that is. And I think, for example, Ms. Vidal ought to do
`the same for her client. I expect that. I know her very
`well and I know you and, you know, I know Mr. Gilliland.
`I expect it to be gracious, the way you treat each other,
`but vigorous, the way you do it.
`So I don't -- I don't expect anyone to just say,
`oh, well, we probably shouldn't do this, but we will. I
`get that. Or vice versa. But if you have that issue, I
`also don't want, which I've had recently, where there are
`two weeks of back-and-forth e-mails saying -- you know, if
`you all can't get something resolved like this in a phone
`call, then just call -- I told them yesterday, I'm going
`to have shirts made up that say, call Dr. Yi. He probably
`wouldn't want me to do that.
`But, you know, if you will just let us know after
`a shorter period of time, you can't get something
`resolved, so far, I think we've been able to get -- have
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`
`
`Case 6:19-cv-00432-ADA Document 107 Filed 02/19/20 Page 13 of 54Case 6:21-cv-00569-ADA Document 14-3 Filed 08/13/21 Page 14 of 55
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`telephonic conferences within the next day or so.
`And like yesterday, I lost an hour of my life,
`but we got it resolved and I was happy when I left and
`they were happy. So no one in here should feel like
`they're giving anything up by any ruling because we will
`be available to resolve anything virtually within 24 hours
`that you -- any dispute that y'all have.
`MR. GILMAN: Well, that's fantastic. That's
`appreciated and refreshing. So.
`THE COURT: Well --
`MR. GILMAN: Appreciate that.
`THE COURT: You know, I've only been on the bench
`a year and a half. They haven't beaten the patience out
`of me yet.
`Is there anything else you wanted to say?
`MR. GILMAN: No, your Honor.
`THE COURT: Okay.
`MR. GILMAN: Thank you for the time.
`THE COURT: You bet.
`So we are going to probably -- I can't say I
`remember for each one, but, for example, Ms. Vidal, in
`this case, would your clients be satisfied from what I've
`said with a dismissal without prejudice of the claims with
`which you're unhappy, with the understanding that
`discovery's going to be taken at the appropriate time?
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`
`
`Case 6:19-cv-00432-ADA Document 107 Filed 02/19/20 Page 14 of 54Case 6:21-cv-00569-ADA Document 14-3 Filed 08/13/21 Page 15 of 55
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`MS. VIDAL: VMware would be very happy with that,
`your Honor. Thank you.
`THE COURT: And, Mr. Gilman, you're okay with
`
`that?
`
`MR. GILMAN: Yes, your Honor.
`THE COURT: Okay. Very good then.
`Then next up -- and I think this is clear to
`everyone in here. I recognize most of the faces. But,
`you know, discovery will start immediately after the
`Markman. And with my Markmans, if you haven't been in
`front of me before, there's one this afternoon. In fact,
`I know I'm babbling, but we are trying to start a new
`process.
`We sent out preliminary constructions yesterday
`to the parties that are going to be at the Markman. I'm
`thinking that's what we'll do from now on. Maybe not as
`far in advance as we did in this case. This hearing got
`bumped, so we were a little ahead of time.
`But you should start anticipating to have
`preliminary constructions by 5:00 the day before so that
`you know when you come in here. They are only preliminary
`constructions. You know, the reason I'm giving them is, I
`have found, a couple of times now, where we've given our
`own construction and people said, we can live with that.
`And so, it saved them the time of preparing for -- I don't
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`
`
`Case 6:19-cv-00432-ADA Document 107 Filed 02/19/20 Page 15 of 54Case 6:21-cv-00569-ADA Document 14-3 Filed 08/13/21 Page 16 of 55
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`expect anyone to abandon their positions by having gotten
`the preliminary constructions. It's really, again, to
`help you all out.
`The discovery's stayed until the Markman, but for
`example, the case today, at the end of the hearing today,
`they will have the Markman constructions, and on Monday,
`they can start discovery. And so, on Monday, if they have
`these issues, for example, that Mr. Gilman had, I would
`expect them get discovery out immediately so that it can
`get -- they know one way or the other, and they can get
`their pleadings amended quickly enough to allow the
`discovery in the rest of the case.
`So the next case up is Parus, which is P-A-R-U-S,
`Holdings vs. Apple.
`Mr. Ravel and --
`MR. DEVOOGD: Drew DeVoogd for Parus, your Honor.
`THE COURT: Pleased to meet you, sir.
`MR. DEVOOGD: Likewise, your Honor.
`MR. RAVEL: I'll begin with a question, rather
`than with an argument. If the question is, would Apple be
`satisfied with a dismissal without prejudice as to
`willfulness, indirect infringement, and the request for
`permanent injunction? The answer to that question would
`be yes, subject to cooperating in discovery immediately
`after it starts and not filing any silly oppositions to
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`
`
`Case 6:19-cv-00432-ADA Document 107 Filed 02/19/20 Page 16 of 54Case 6:21-cv-00569-ADA Document 14-3 Filed 08/13/21 Page 17 of 55
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`amended pleadings.
`THE COURT: And what do you say on behalf of
`
`Parus?
`
`MR. DEVOOGD: I'd be happy to proceed in that
`manner, your Honor.
`THE COURT: Okay. Very good.
`And then, do we have anyone for De La Vega vs.
`Microsoft?
`MR. SHELTON: Yes, your Honor. Barry Shelton.
`THE COURT: Oh, I'm sorry. I assumed these other
`Parus cases were all together. I should ask for Google,
`LG Electronics, Samsung and Amazon, whether there's any
`difference in the positions you all would take like Mr.
`Ravel did. If so -- and if you would introduce yourselves
`on the record, just make sure that we get it down, one at
`a time, and who you represent.
`MR. SNYDER: Darin Snyder and Stephen Burbank,
`along with our representative Timur Engin from Google,
`LLC. And then, Stephen Burbank and Darin Snyder for LG
`Electronics, Incorporated and LG Electronics USA,
`Incorporated.
`THE COURT: And what would your position be?
`And, Lily, can you hear him from there or do you want him
`to come up?
`COURT REPORTER: If you could move the mic closer
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`
`
`Case 6:19-cv-00432-ADA Document 107 Filed 02/19/20 Page 17 of 54Case 6:21-cv-00569-ADA Document 14-3 Filed 08/13/21 Page 18 of 55
`
`17
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`to you, please.
`MR. SNYDER: Good morning, your Honor. Darin
`Snyder with O'Melveny & Myers.
`Granting our motion without prejudice to the
`plaintiff later taking discovery would be acceptable to
`Google and LG.
`THE COURT: Okay. Yes, ma'am.
`MS. MAROULIS: Good morning, your Honor.
`Victoria Maroulis, counsel for Samsung in the
`Parus case.
`And as with other defendants, we're satisfied
`with dismissing the claims without prejudice and having
`discovery later. Thank you, your Honor.
`THE COURT: Okay. Yes, sir.
`MR. RANGANATH: Good morning.
`Ravi Ranganath, Fenwick & West, for Amazon. And
`our position is the same as the other defendants.
`THE COURT: And last, but not least, my favorite
`Barry Shelton.
`MR. SHELTON: Your Honor, I'm local counsel
`for Amazon.
`THE COURT: Okay. Very good.
`So does that take care of all of the Parus
`Defendants?
`MR. DEVOOGD: Your Honor.
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`
`
`Case 6:19-cv-00432-ADA Document 107 Filed 02/19/20 Page 18 of 54Case 6:21-cv-00569-ADA Document 14-3 Filed 08/13/21 Page 19 of 55
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`THE COURT: Yes, sir.
`MR. DEVOOGD: If I may, Drew DeVoogd for Parus
`Holdings. I'm the attorney who would like your indulgence
`to get sworn in. Would you like to do that now? We can.
`Or reserve till after the hearing?
`THE COURT: Nothing would make me happier than to
`swear you in right now, in front of all these people. So
`if you'll come up.
`MR. DEVOOGD: And I also have a couple of
`additional comments.
`THE COURT: Okay.
`MR. DEVOOGD: At least with respect to the Google
`
`case.
`
`THE COURT: Okay. Let me swear you in; that way,
`you're all official. If you would raise your right hand
`and repeat after me:
`I do solemnly swear that I will discharge the
`duties of attorney and counselor of this court faithfully.
`That I will demean myself uprightly under the law in the
`highest ethics of our profession. I will support and
`defend the Constitution of the United States.
`Congratulations.
`MR. DEVOOGD: Thank you, your Honor.
`THE COURT: Now, let me hear what it is you would
`like to add about Google, and then, I'll hear from
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`LILY I. REZNIK, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
`
`
`
`
`
`Case 6:19-cv-00432-ADA Document 107 Filed 02/19/20 Page 19 of 54Case 6:21-cv-00569-ADA Document 14-3 Filed 08/13/21 Page 20 of 55
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`Google's counsel, if they need to say something.
`MR. DEVOOGD: Thank you, your Honor. I just need
`to retrieve my binder with your indulgence.
`THE COURT: Okay.
`MR. DEVOOGD: Thank you.
`THE COURT: And your -- is this the case where
`there may have been some actual notice that you would like
`to articulate?
`MR. DEVOOGD: That's correct, your Honor. And I
`also had some thoughts on the Romag Fasteners argument.
`THE COURT: Great.
`MR. DEVOOGD: It's more academic, so we can defer
`that discussion, if you'd like.
`THE COURT: No. I'm happy to have it.
`MR. DEVOOGD: Okay. So as I heard that argument,
`the issue that Justice Kavanaugh and, I believe, Justices
`Kagan and Sotomayor were addressing is whether or not the
`specific requirement for willfulness under the classic
`principles of equity that the courts have applied in this
`country for the past 200 years that are committed to the
`district court's discretion within those parameters of
`those classic equitable principles can be satisfied
`without actual notice.
`And from our perspective and the way I read the
`cases in forming with respect to these particular
`
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