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Case 6:21-cv-00569-ADA Document 63 Filed 05/25/22 Page 1 of 12
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`TOUCHSTREAM TECHNOLOGIES, INC.
`
`*
`February 22, 2022
`VS.
`*
` * CIVIL ACTION NO. W-21-CV-569
`GOOGLE LLC
`*
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT
`DISCOVERY HEARING (via Zoom)
`
`APPEARANCES:
`For the Plaintiff:
`
`For the Defendant:
`
`Court Reporter:
`
`Ryan D. Dykal, Esq.
`Samuel J. Laroque, Esq.
`Shook, Hardy & Bacon, LLP
`2555 Grand Boulevard
`Kansas City, MO 64108
`Tharan Gregory Lanier, Esq.
`Evan M. McLean, Esq.
`Jones Day
`1755 Embarcadero Road
`Palo Alto, CA 94303
`Shaun William Hassett, Esq.
`Potter Minton PC
`110 North College, Suite 500
`Tyler, TX 75702
`Kristie M. Davis, CRR, RMR
`PO Box 20994
`Waco, Texas 76702-0994
`(254) 340-6114
`
`Proceedings recorded by mechanical stenography,
`transcript produced by computer-aided
`transcription.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 63 Filed 05/25/22 Page 2 of 12
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`DEPUTY CLERK: A civil action in Case
`6:21-CV-569, Touchstream Technologies, Incorporated
`versus Google LLC. Case called for a discovery
`hearing.
`
`THE COURT: If I could have announcements
`from counsel, please.
`MR. DYKAL: Yes, Your Honor. This is --
`oh, go ahead.
`MR. HASSETT: No. Go ahead, Ryan.
`MR. DYKAL: This is Ryan Dykal on behalf
`of the plaintiff Touchstream Technologies. And I'm
`with the law firm of Shook, Hardy & Bacon. And with me
`is Sam LaRoque, also with Shook, Hardy & Bacon, on
`behalf of the plaintiff.
`MR. HASSETT: And, Your Honor, this is
`Shaun Hassett for defendant Google, from Potter Minton.
`And with me today on the phone and handling argument
`for Google will be Greg Lanier and Evan McLean from
`Jones Day. And we're also joined by Emily Chen from
`Google. And I see Edwin Garcia on the line as well.
`He's also from Jones Day.
`THE COURT: Okay. Happy to take the
`
`issues up.
`
`MR. DYKAL: Thank you, Your Honor.
`This dispute revolves around a request
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 63 Filed 05/25/22 Page 3 of 12
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`for an ESI order that would dictate the number of
`custodians and search terms and any other procedures
`that would be necessary to govern ESI in this case.
`Touchstream has proposed an ESI order
`based on the model order from the Eastern District of
`Texas which this Court has ordered many times before.
`It dictates that there would be eight custodians, ten
`reasonably-tailored search terms per custodian and one
`deposition to identify the proper custodian terms in
`the time frame.
`Touchstream also requests that the
`definition of ESI include not only e-mail, but the
`messaging systems that the parties use internally. And
`the reason we want that particular one is because
`Google, as we've discovered, uses various internal
`messaging platforms instead of e-mail. And sometimes
`those messaging systems change over time which is why
`we think a deposition is appropriate to identify the
`various parameters around ESI.
`The reason we need ESI in this case, Your
`Honor, is because there were meetings between these two
`companies prior to this lawsuit, well prior to this
`lawsuit, and Touchstream has lodged a willfulness
`allegation. And we believe we should be permitted
`discovery to understand whether and to what extent
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 63 Filed 05/25/22 Page 4 of 12
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`there was internal debate about Touchstream and its
`intellectual property.
`Google's response is that no ESI is
`necessary absent a showing of good cause, and they take
`that position from the Court's OGP; but our position is
`that that says that there is no general searching of
`e-mails and ESI absent good cause.
`In contrast, for targeted searching, as
`Touchstream is requesting, the OGP simply says that if
`a party believes it's necessary, we shall propose a
`procedure to identify custodians and search terms.
`And that's exactly what's happened here.
`Touchstream believes it is necessary, we have proposed
`a procedure to identify custodians and search terms,
`and we feel that it is appropriate.
`Even if we did have to show good cause,
`there is willfulness --
`THE COURT: Tell me this: What -- I'm
`not sure how you would -- I'm not sure how you would
`pull off search terms that would get you the -- what
`you're -- just listening, I'm trying to think, what
`would you send to them as search terms to try and find
`something like willful?
`I mean, I'm -- so I'm not certain how
`you -- I'm not just reflexively opposed to allowing you
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 63 Filed 05/25/22 Page 5 of 12
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`to have some of this, and maybe, you know, when I hear
`from Mr. Lanier, who I know is eminently reasonable, he
`might tell me they're not categorically opposed to it
`either, but if their concern is how they -- how we keep
`this inside the guardrails, tell me what your thoughts
`are on how to make the search terms and everything else
`sufficiently robust to get what you want and
`sufficiently whatever the opposite of robust is to make
`sure it's not unfair to the defendant.
`MR. DYKAL: No. Exactly. You know, some
`of the search terms we've contemplated, and we
`disclosed this to Google, would involve multiple search
`terms that have connectors within a certain word limit.
`So we would like to search things like "patent" near
`the word "Touchstream" or "intellectual property" near
`the name of our invention.
`So we're just generally targeting things
`that would pull up willfulness, maybe some of the early
`projects. Some of the people that were in the meetings
`with Touchstream, we want to know what were they
`talking about surrounding our companies in the relevant
`time frame. They decided eventually not to purchase
`Touchstream and so did they appreciate any risks,
`potential infringement lawsuits there.
`THE COURT: What is the universe of
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 63 Filed 05/25/22 Page 6 of 12
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`people you're seeking this from? How many people and
`who are they?
`MR. DYKAL: Yes. We proposed eight
`people, which is less than most districts in this
`country permit for ESI searches. Again, eight comes
`from the model Eastern District of Texas ESI order.
`And this Court has entered it, you know, a number of
`times.
`
`So it's certainly not out of the
`ordinary. It's actually, we think, a little narrower
`than in most cases. And the custodians we're
`contemplating would be those people involved with the
`initial discussions with Touchstream, some of the other
`people around those very early projects where Google
`started this technology which we feel is infringing.
`Which happened around the same time frame. You know,
`within six months to a year Google launched a competing
`product that, you know, we feel infringes.
`And so we feel like with the deposition,
`one probably short ESI deposition to see who was
`involved, what sort of search terms we need. That is
`what we propose.
`And the reason we want that deposition,
`which also comes from the Eastern Texas order, is
`because we've already found seven code words that
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 63 Filed 05/25/22 Page 7 of 12
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`Google uses to describe the early projects. They
`don't --
`
`THE COURT: I'm sorry. You broke up and
`I couldn't -- you found seven what? I couldn't hear
`you.
`
`MR. DYKAL: Seven code words that
`
`Google --
`
`THE COURT: Okay. Got it.
`MR. DYKAL: -- was using in their
`internal projects. So if we just naively propose the
`word "Chromecast" and "patent," we might come up with
`no hits because Google uses code names for their
`internal projects.
`So we'd like to know what are the code
`names you use for your technology? What are the code
`names you were using for the acquisition -- potential
`acquisition of our company? Those sorts of things.
`THE COURT: So you're suggesting you get
`a short 30(b)(6) on someone who would know the
`nomenclature so that you could then use those words to
`limit your searches of ESI?
`MR. DYKAL: Precisely. And we'd also
`explore the topics of what messaging systems were the
`people involved with using back then? And who was
`involved? We know some of the people, but we probably
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 63 Filed 05/25/22 Page 8 of 12
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`don't know everybody who was involved with the
`potential acquisition.
`And then we know some of the people
`involved in the acquisition are the founders of
`Chromecast. So that's an obvious custodian. We're
`going to want those people. Who else was involved?
`We're unsure.
`THE COURT: Am I cutting you off or were
`
`you done?
`
`MR. DYKAL: No. I can quickly address
`Google's proposal and why we feel it isn't appropriate
`and probably pass it on to Google.
`THE COURT: Why don't I hear from
`Mr. Lanier and then I'll let you respond?
`MR. DYKAL: Absolutely.
`MR. LANIER: Thank you, Your Honor. For
`the record, Greg Lanier, Jones Day, for Google. It's a
`pleasure to see you all again.
`Three major points to start with, Your
`Honor. First, we do think this is a case where it's
`worth not jumping past that initial hurdle, whether ESI
`discovery is appropriate in this case.
`The Court's given a lot of thought to
`these issues. It's in the OGP for a reason. The Court
`encourages the parties to get to discovery that gets to
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 63 Filed 05/25/22 Page 9 of 12
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`the heart of the matter with the depositions and other
`tools that are available to the parties.
`The second piece of context that's
`important here, and Your Honor may recall, there's been
`some -- we had one hearing and there's been relatively
`extensive discovery relating to the venue issues in
`this case. There's that motion that's pending
`separately. But there was relatively extensive
`discovery ordered there, including a 30(b)(6). And --
`in fact, two designees for 30(b)(6).
`And so they've already had a lot of
`information here, so that leads to really this point.
`What we've heard about the good cause to vary from this
`Court's well-considered practice over the years is
`there is a willfulness allegation. That's really what
`we've heard.
`
`And against the backdrop of all the
`discovery that's happened to this point, that's no more
`extensive, no more pointed --
`THE COURT: Let me interrupt you just for
`one second. And I need to check one thing with my
`clerk, and then I'll be right back.
`MR. LANIER: Thank you.
`(Pause in proceedings.)
`THE COURT: So here's what I'm going to
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 63 Filed 05/25/22 Page 10 of 12
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`do. I think, given that there are -- that -- I do
`think the issue of what ESI the plaintiff would be
`entitled to and the defendant would be responsible for
`is -- could be affected by where the case is venued.
`We're going to -- if this works for you all, we're
`going to set a hearing on the motion to transfer for
`next Tuesday.
`I'm going to postpone a decision on this,
`but I don't want you guys thinking I'm kicking the can
`down the road. And I am kicking the can down the road,
`but I think appropriately since I think if -- I know --
`I know what I would do. But if this isn't my case,
`then I think the judge who has it -- and I've not
`decided, I'm just saying that there's a motion pending
`and I think this is an important -- I think this is
`a -- this is a whoever your judge is ought to make the
`decision and I don't want to bind, if I don't keep it.
`If I do keep it -- let me say this. At
`the end of the hearing we'll take up the -- this issue
`as well. So Tuesday at 3 o'clock, we'll get you a Zoom
`invitation. And my understanding from my clerk is that
`the motion to transfer's fully briefed, correct?
`MR. DYKAL: That's correct, Your Honor.
`MR. LANIER: That's correct, Your Honor.
`THE COURT: Okay. I'm sorry not to
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 63 Filed 05/25/22 Page 11 of 12
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`decide it today. I don't like -- I never liked it when
`judges put things off. But I think in this situation
`it's best to get the underlying issue resolved, and
`that's what we'll do.
`Is there anything else we need to take up
`about anything else that I could help you resolve
`today?
`
`MR. DYKAL: Nothing here, Your Honor.
`MR. LANIER: Nothing from Google either,
`Your Honor. Thank you very much.
`THE COURT: We'll see you in a week.
`(Hearing adjourned.)
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

`

`Case 6:21-cv-00569-ADA Document 63 Filed 05/25/22 Page 12 of 12
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`UNITED STATES DISTRICT COURT )
`WESTERN DISTRICT OF TEXAS
`)
`
`I, Kristie M. Davis, Official Court Reporter for the
`United States District Court, Western District of
`Texas, do certify that the foregoing is a correct
`transcript from the record of proceedings in the
`above-entitled matter.
`I certify that the transcript fees and format comply
`with those prescribed by the Court and Judicial
`Conference of the United States.
`Certified to by me this 25th day of May 2022.
`
`
`
`
`
`
`/s/ Kristie M. Davis
`KRISTIE M. DAVIS
`Official Court Reporter
`800-Franklin Avenue
`Waco, Texas 76701
`(254) 340-6114
`kmdaviscsr@yahoo.com
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`

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