Case 6:21-cv-00569-ADA Document 95 Filed 10/12/22 Page 1 of 6
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`TOUCHSTREAM TECHNOLOGIES, INC.,
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`GOOGLE LLC,
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`Defendant.
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`Plaintiff,
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`v.
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`Civil Case No. 6:21-cv-569-ADA
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`JURY TRIAL DEMANDED
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`MOTION FOR ISSUANCE OF LETTER OF REQUEST FOR INTERNATIONAL
`JUDICIAL ASSISTANCE AND APPOINTMENT OF COMMISSIONERS TO TAKE
`EVIDENCE PURSUANT TO CHAPTER II, ARTICLE 17 OF THE HAGUE
`CONVENTION OF 18 MARCH 1970 ON THE TAKING OF EVIDENCE ABROAD IN
`CIVIL OR COMMERCIAL MATTERS
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`Defendant Google LLC (“Google”) seeks the Court’s assistance in order to take deposition
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`testimony from witness Janos Levai in Switzerland. Mr. Levai, a Staff Product Manager at Google
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`Switzerland GmbH, is a witness who will offer testimony relevant to this action. Google seeks to
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`conduct the deposition of Mr. Levai remotely while he is located in Switzerland, but Google must
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`first meet certain foreign discovery conditions pursuant to the Hague Convention.
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`Switzerland, as a party to the Hague Convention, requires litigants to obtain permission from
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`the Federal Office of Justice before taking deposition testimony of a witness located in Switzerland.
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`To obtain such permission, Google must have a United States District Court (1) appoint a Swiss
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`commissioner and appoint representatives for the parties who will participate in the deposition as
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`commissioners, and (2) request judicial assistance from the applicable Swiss authorities. This Court
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`has previously granted similar motions directed to depositions in Switzerland, see Neodron Ltd. v.
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`Renesas Electronics Corporation et al., No. 6:20-cv-00529 (WDTX), Dkt. 55 (Albright, J., granting
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`unopposed motion for issuance of letters of request pursuant to the Hague Evidence Convention for
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`TOUCHSTREAM TECHNOLOGIES, INC.,
`
`
`
`
`
`GOOGLE LLC,
`
`
`
`
`
`
`
`
`
`
`
`Defendant.
`
`Plaintiff,
`
`
`
`v.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`
`
`Civil Case No. 6:21-cv-569-ADA
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`
`MOTION FOR ISSUANCE OF LETTER OF REQUEST FOR INTERNATIONAL
`JUDICIAL ASSISTANCE AND APPOINTMENT OF COMMISSIONERS TO TAKE
`EVIDENCE PURSUANT TO CHAPTER II, ARTICLE 17 OF THE HAGUE
`CONVENTION OF 18 MARCH 1970 ON THE TAKING OF EVIDENCE ABROAD IN
`CIVIL OR COMMERCIAL MATTERS
`
`Defendant Google LLC (“Google”) seeks the Court’s assistance in order to take deposition
`
`testimony from witness Janos Levai in Switzerland. Mr. Levai, a Staff Product Manager at Google
`
`Switzerland GmbH, is a witness who will offer testimony relevant to this action. Google seeks to
`
`conduct the deposition of Mr. Levai remotely while he is located in Switzerland, but Google must
`
`first meet certain foreign discovery conditions pursuant to the Hague Convention.
`
`Switzerland, as a party to the Hague Convention, requires litigants to obtain permission from
`
`the Federal Office of Justice before taking deposition testimony of a witness located in Switzerland.
`
`To obtain such permission, Google must have a United States District Court (1) appoint a Swiss
`
`commissioner and appoint representatives for the parties who will participate in the deposition as
`
`commissioners, and (2) request judicial assistance from the applicable Swiss authorities. This Court
`
`has previously granted similar motions directed to depositions in Switzerland, see Neodron Ltd. v.
`
`Renesas Electronics Corporation et al., No. 6:20-cv-00529 (WDTX), Dkt. 55 (Albright, J., granting
`
`unopposed motion for issuance of letters of request pursuant to the Hague Evidence Convention for
`
`
`
`
`
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`Case 6:21-cv-00569-ADA Document 95 Filed 10/12/22 Page 2 of 6
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`a Swiss witness), and Google has likewise obtained similar orders from sister district courts with
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`respect to witnesses in Switzerland, see Google LLC v. Sonos, Inc., 3-20-cv-06754 (NDCA) Dkts.
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`224-27 (granting unopposed motion for issuance of letters of request pursuant to the Hague Evidence
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`Convention for witnesses located in Switzerland).
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`To that end, Google requests that the Court grant this Motion for Issuance of Letter of
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`Request for International Judicial Assistance and Appointment Of Commissioners to Take Evidence
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`Pursuant to Chapter II, Article 17 of The Hague Convention of 18 March 1970 on the Taking of
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`Evidence Abroad in Civil or Commercial Matters. Google requests that Olivier Buff be appointed
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`Swiss Commissioner. Google also requests that Greg Lanier, Evan McLean, and Edwin Garcia be
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`appointed commissioners for Google, and that Ryan Dykal, Michael Gray, and Sam LaRoque be
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`appointed commissioners for Plaintiff Touchstream Technologies, Inc. (“Touchstream”).
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`Accordingly, Google moves the Court, pursuant to Fed. R. Civ. P. 28(b), for entry of an order
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`(the “Order”):
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`1) Appointing Greg Lanier, Evan McLean, and Edwin Garcia on behalf of Google and
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`Ryan Dykal, Michael Gray, and Sam LaRoque on behalf of Touchstream, as
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`commissioners (together, the “Commissioners”),1 pending the approval of the Swiss
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`authorities, to conduct the examination of witness Janos Levai in Switzerland
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`pursuant to Chapter II, Article 17 of the Hague Convention of 18 March 1970 on the
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`Taking of Evidence Abroad in Civil or Commercial Matters, T.I.A.S. No. 7444, 23
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`U.S.T. 2555 (“Chapter II of the Hague Convention”);
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`1 While Counsel for Touchstream did not join Google in this motion, Google nonetheless seeks
`their appointment as Commissioners so that Touchstream’s counsel may question the witness
`remotely—in the same way as they would in any other remote deposition conducted in this case—
`should they wish to do so.
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`2
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`Case 6:21-cv-00569-ADA Document 95 Filed 10/12/22 Page 3 of 6
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`2) Appointing Olivier Buff as commissioner (the “Swiss Commissioner”), pending the
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`approval of the Swiss authorities, to supervise the examination of witness Janos Levai
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`in Switzerland pursuant to Chapter II of the Hague Convention;
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`3) Issuing a Letter of Request for International Judicial Assistance (“Letter of Request”)
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`pursuant to 28 U.S.C. § 1781 and Chapter II of the Hague Convention;
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`4) Directing submission of the Letter of Request for Assistance to the Swiss Federal
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`Office of Justice (“FOJ”) via the Cantonal Court of Zurich for the purpose of
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`approving the appointment of the Commissioner; and
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`5) Granting such other and further relief as this Court may deem just and proper.
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`Google will use the procedures of Chapter II of the Hague Convention to facilitate the
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`deposition of Janos Levai in Switzerland, who has consented to being deposed there via remote
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`means. (Ex. A). Under Chapter II, a deposition is supervised by a Swiss Commissioner and
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`conducted by commissioners representing the parties and duly appointed by the Court in the U.S.
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`proceeding, all of whom are authorized to proceed by the FOJ at the request of the U.S. tribunal.
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`This procedure will not restrict the scope of discovery otherwise permissible under the Federal Rules
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`of Civil Procedure. (Ex. D). Moreover, undertaking the deposition remotely in accordance with
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`Swiss law will not impose an undue logistical burden or prejudice on any of the parties. (Ex. D).
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`The steps to proceed under Chapter II of the Hague Convention are as follows:
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`1. The Court must duly appoint one or several commissioner(s) for the purpose of taking
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`evidence abroad. A proposed order for the Court to appoint commissioners is attached
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`hereto as Exhibit B (the “Proposed Order”).
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`3
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`Case 6:21-cv-00569-ADA Document 95 Filed 10/12/22 Page 4 of 6
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`2. The Court must issue a Letter of Request to the FOJ for authorization to take evidence
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`abroad. A proposed Letter of Request is attached hereto as Exhibit C (the “Proposed
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`Letter of Request”).
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`3. The necessary application for authorization (the “Swiss Application”), with the Proposed
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`Order and the Proposed Letter of Request attached to it, must be filed with the FOJ via
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`the Central Authority in the canton where the evidence is to be taken, i.e., the High Court
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`of the Canton of Zurich, International Judicial Assistance, Hirschengraben 13/15, 8021
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`Zurich, Switzerland.2 Google will undertake this step if the Court grants the instant
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`motion.
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`4. Upon approval from the FOJ and subject to the terms contained in the Proposed Letter
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`of Request and/or the Swiss Application, Google will arrange for the deposition. Olivier
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`Buff will be present in person, or if required remotely, at the deposition of Mr. Levai to
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`supervise proceedings.
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`5. The deposition will take place at the Swiss offices of Quinn Emanuel at Dufourstrasse
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`29, 8008 Zurich, Switzerland or, if required, from another location in the canton of
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`Zurich, Switzerland. Mr. Levai has agreed to voluntarily comply by proceeding pursuant
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`to Chapter II of the Hague Convention.
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`6. Neither the entry of the Proposed Order, the Proposed Letter of Request, the submission
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`of the Swiss Application, nor the conduct of the deposition pursuant to Chapter II of the
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`Hague Convention shall constitute or operate as a waiver of the attorney-client privilege,
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`the work product doctrine, or any other privileges, rights, protections, or objections that
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`2 The application is sent to the competent Central Authority, i.e., the High Court of the Canton of
`Zurich, International Judicial Assistance, Hirschengraben 13/15, 8021 Zurich, Switzerland. After
`examining the Request, the Central Authority will forward the application to the FOJ.
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`Case 6:21-cv-00569-ADA Document 95 Filed 10/12/22 Page 5 of 6
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`may apply to that evidence under the laws of Switzerland, or of the United States, nor as
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`a concession that any assertion of any such privilege, right, protection, or objection is
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`necessarily valid.
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`5
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`Case 6:21-cv-00569-ADA Document 95 Filed 10/12/22 Page 6 of 6
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`Dated: October 12, 2022
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`Respectfully submitted,
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` By:
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`,
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`/s/ Tharan Gregory Lanier
` with permission by Michael E. Jones
`JONES DAY
`
`Tharan Gregory Lanier (Admitted pro hac vice)
`CA State Bar No. 138784
`E-mail: tglanier@jonesday.com
`Michael C. Hendershot (Admitted pro hac vice)
`CA State Bar No. 211830
`E-mail: mhendershot@jonesday.com
`Evan M. McLean (Admitted pro hac vice)
`CA State Bar No. 280660
`E-mail: emclean@jonesday.com
`1755 Embarcadero Road
`Palo Alto, CA 94303
`Telephone: (650) 739-3939
`Facsimile:
`(650) 739-3900
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`POTTER MINTON PC
`Michael E. Jones
`TX State Bar No. 10929400
`E-mail: mikejones@potterminton.com
`Shaun W. Hassett
`TX State Bar No. 24074372
`E-mail: shaunhassett@potterminton.com
`110 N. College Ave., Suite 500
`Tyler, TX 75702
`Telephone:
` (903) 597-8311
`Facsimile:
` (903) 593-0846
`Attorneys for Defendant
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`GOOGLE LLC
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`6
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