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`Exhibit N
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`Case 6:20-cv-00856-ADA Document 28 Filed 09/07/21 Page 1 of 13Case 6:21-cv-00667-ADA Document 26-14 Filed 11/11/21 Page 2 of 14
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`CUB CLUB INVESTMENT, LLC,
` Plaintiff,
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`v.
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`APPLE, INC.,
` Defendant,
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`§
`§
`§
`§
`§
`§
`§
`§
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`6-20-CV-00856-ADA
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`
`ORDER GRANTING DEFENDANT’S MOTION TO
`TRANSFER
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`Before the Court is Defendant Apple, Inc.’s (“Apple”) Motion to Transfer Venue to the
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`Northern District of California (“NDCA”) pursuant to 28 U.S.C. § 1404(a). ECF No. 21. The Mot.
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`to Transfer was filed on November 24, 2020. Id. Plaintiff, Cub Club Investment, LLC, (“CCI”)
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`filed its response on December 9, 2020. ECF No. 26. Apple filed its reply on December 16, 2020.
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`ECF No. 27. After considering all related pleadings and the relevant law, the Court is of the
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`opinion that Apple’s Motion should be GRANTED.
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`Background
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`CCI filed this action on September 18, 2020, pursuant to the Court’s original jurisdiction
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`under 28 U.S.C. §§ 1331 and 1338(a). ECF No. 1. Plaintiffs allege that Apple infringes on the
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`following copyrights: (1) Nos. VAu 001-204-290, (2) VAu 001-186-920, (3) VAu 001-152-200,
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`(4) VAu 001-152-192, (5) VAu 001-152-187, (6) VAu 001-180-102, and (7) VAu 001-152-204
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`(collectively, “Works”). ECF No. 1 ¶ 1.
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`On November 24, 2020, Apple filed an opposed Mot. to Transfer under 28 U.S.C. §
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`1404. Defendant’s Opposed Mot. to Transfer to the Northern District of California (hereinafter
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`“Mot. to Transfer”), ECF No. 21. In its motion, Apple argues transfer to the NDCA is proper
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`because the convenience of the parties and interests of justice weigh in favor of transfer. Id. at
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`4–10. On December 9, 2020, CCI filed a response to Apple’s Mot. to Transfer, opposing transfer
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`to NDCA and asking the Court to transfer to the Galveston Division of the Southern District of
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`Texas in the alternative. Pls.’ Resp. in Opp’n to Defs.’ Mot. to Transfer Venue. (hereinafter
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`“Resp.”), ECF No. 26. On December 16, 2020, Apple filed a reply. Def’s. Reply in Supp. of
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`Def’s. Mot. to Transfer Under 28 U.S.C. § 1404(a) (hereinafter “Reply”), ECF No. 27.
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`Legal Standard
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`Whether to transfer venue is a preliminary issue that must be addressed at the outset of
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`a federal action and must take “top priority in the handling of this case.” In re Horseshoe Ent.,
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`337 F.3d 429, 433 (5th Cir. 2003). The Court may transfer an action to any district or division
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`where it might have been brought if that transfer serves “the convenience of parties and
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`witnesses” and “the interest of justice.” 28 U.S.C. § 1404(a). Section 1404(a)’s threshold
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`inquiry is whether the case could initially have been brought in the proposed transferee forum.
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`In re Volkswagen AG, 371 F.3d 201, 202–03 (5th Cir. 2004) [Volkswagen I]. If that inquiry is
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`satisfied, the Court determines whether transfer is proper by analyzing and weighing various
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`private and public interest factors. Humble Oil & Ref. Co. v. Bell Marine Serv., 321 F.2d 53, 56
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`(5th Cir. 1963); In re Apple Inc., 979 F.3d 1332, 1338 (Fed. Cir. 2020) (applying Fifth Circuit
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`law).
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`The private interest factors are “(1) the relative ease of access to sources of proof; (2)
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`the availability of compulsory process to secure the attendance of witnesses; (3) the cost of the
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`case; and (4) the avoidance of unnecessary problems of conflict of laws [or in] the application
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`of foreign law.” Id. (quoting Volkswagen I, 371 F.3d at 203) (alterations in original). The public
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`interest factors are “(1) the administrative difficulties flowing from court congestion; (2) the
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`local interest in having localized interests decided at home; (3) the familiarity of the forum with
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`the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of
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`laws [or in] the application of foreign law.” Id. (quoting Volkswagen I, 371 F.3d at 203)
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`(alterations in original). The factors are neither exclusive nor exhaustive, and no one factor is
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`dispositive. Id. In applying these factors, the court enjoys considerable discretion and assesses
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`the case “on an ‘individualized, case-by-case consideration of convenience and fairness.’” In re
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`Vistaprint Ltd., 628 F.3d 1342, 1346 (Fed. Cir. 2010) (quotation omitted). The burden to prove
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`that a case should be transferred for convenience falls squarely on the moving party. See id.
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`Although the plaintiff’s choice of forum is not a separate factor entitled to special weight, respect
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`for the plaintiff’s choice of forum is encompassed in the movant’s elevated burden to “clearly
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`demonstrate” that the proposed transferee forum is “clearly more convenient” than the forum in
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`which the case was filed. Id. at 314–15. While “clearly more convenient” is not necessarily
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`equivalent to “clear and convincing,” the moving party “must show materially more than a mere
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`preponderance of convenience, lest the standard have no real or practical meaning.” Quest
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`NetTech Corp. v. Apple, Inc., No. 2:19-cv-118, 2019 WL 6344267, at *7 (E.D. Tex. Nov. 27,
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`2019).
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`Discussion
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`I.
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`The Volkswagen Private and Public Interest Factors Favor Transfer to the
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`Northern District of California.
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`In order to determine whether Apple has demonstrated good cause, the Court must weigh
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`the private and public interest factors cataloged in Volkswagen II. The private interest factors
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`include: “(1) the relative ease of access to sources of proof; (2) the availability of compulsory
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`process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses;
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`and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive.”
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`Volkswagen II, 545 F.3d at 315 (quoting Volkswagen I, 371 F.3d at 203). The public interest
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`factors are “(1) the administrative difficulties flowing from court congestion; (2) the local interest
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`in having localized interests decided at home; (3) the familiarity of the forum with the law that
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`will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws [or in]
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`the application of foreign law.” Id. (quoting Volkswagen I, 371 F.3d at 203) (alterations in
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`original). If, when added together, the relevant private and public interest factors are in
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`equilibrium, or even if they do not clearly lean in favor of the transferee venue, the motion must
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`be denied. Volkswagen II, 545 F.3d at 315. Once again, the Court’s ultimate inquiry is which
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`forum will best serve the convenience of the parties and the interests of justice. Koster v. Am.
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`Lumbermens Mut. Cas. Co., 330 U.S. 518, 527 (1947). Here, when weighing the Volkswagen
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`private and public interest factors, the Court finds that Apple has shown that the NDCA is “clearly
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`more convenient” than the Western District of Texas (“WDTX”).
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`a. The Private Interest Factors Clearly Establish that the Northern District of
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`California is a More Convenient Venue.
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`In considering private factors, the Court necessarily engages in a comparison between the
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`hardships the defendant would suffer through the retention of jurisdiction and the hardships the
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`plaintiff would suffer from transferring the action to the transferee venue. Cf. Iragorri v. United
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`Technologies Corp., 274 F.3d 65, 74 (2d Cir. 2001) (stating courts engage in such a comparison
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`for forum non conveniens analyses). The Court will assess each of these factors in turn.
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`i. The Relative Ease of Access to Sources of Proof
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`In considering “the relative ease of access to sources of proof,” a court looks to where
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`documentary evidence, such as documents and physical evidence, is stored. Volkswagen II, 545
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`F.3d at 316. Parties must “describe with specificity the evidence they would not be able to
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`obtain if trial were held in the [alternate forum].” Piper Aircraft Co. v. Reyno, 454 U.S. 235,
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`258 (1981).
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`In its motion, Apple, relying upon a previous copyright case, Carruth v. Michot, No. A-
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`15-CA-189-SS, 2015 WL 6506550, at *15 (W.D. Tex. Oct. 26, 2015), alleges that this action
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`should be treated similarly to patent infringement actions in that the accused infringer maintains
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`the sources of proof relevant to the action. Mot. to Transfer at 5. Under this assumption, Apple
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`argues that this factor must thus favor transfer since all of the documents “concerning Apple’s
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`development, design, and implementation of emoji with skin-tone variation were generated and
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`are stored in the NDCA, where the teams responsible for emoji-related work are based,” and it is
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`where Apple’s financial documents will be located which Apple argues is relevant for CCI’s
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`damages claim. Id. at 6.
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`CCI counters that “while Apple asserts that a majority of its documents and evidence are
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`located in California, Apple has an actual office … in the District with computer access such that
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`access to the documents from the District is not difficult.” Resp. at 6. This is undoubtedly true,
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`but accessibility alone is not the test. See, e.g., Wet Sounds, Inc. v. Audio Formz, LLC, 2017 WL
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`4547916, at *2 (W.D. Tex. Oct. 11, 2017). The fact that documents may be stored electronically
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`does not undermine the import of their location as “the Fifth Circuit [has] clarified that despite
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`technological advances that make the physical location of documents less significant, the
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`location of sources of proof remains a ‘meaningful factor in the analysis.’” Wet Sounds, Inc. v.
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`Audio Formz, LLC, No. A-17-CV-141- LY, 2017 WL 4547916, at *2 (W.D. Tex. Oct. 11, 2017),
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`rep. & rec. adopted, No. 1:17-CV-141-LY, 2018 WL 1219248 (W.D. Tex. Jan. 22, 2018)
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`(quoting Volkswagen II, 545 F.3d at 315).
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` Given (1) that Apple resides in the NDCA and (2) that the accused features were
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`apparently developed at Apple’s offices in California, the Court here finds this factor weighs in
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`favor of transfer to NDCA.
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`ii. The Availability of Compulsory Process to Secure the Attendance of
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`Witnesses
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`When balancing this factor, the Court considers the availability of compulsory process
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`to secure the attendance of witnesses whose attendance may require a court order. Volkswagen
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`II, 545 F.3d at 316. When “a proper venue that does enjoy absolute subpoena power . . . is
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`available,” that fact favors transfer. See Id. at 316–17; Gemalto S.A. v. CPI Card Grp. Inc., No.
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`CV A-15-CA- 0910-LY, 2015 WL 10818740, at *4 (W.D. Tex. Dec. 16, 2015). A court may
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`subpoena a witness to attend trial only (a) “within 100 miles of where the person resides, is
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`employed, or regularly transacts business in person,”; or (b) “within the state where the person
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`resides, is employed, or regularly transacts business in person, if the person . . . is commanded
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`to attend a trial and would not incur substantial expense.” Fed. R. Civ. P. 45(c)(1)(A), (B)(ii);
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`Gemalto S.A. v. CPI Card Grp. Inc., No. 15-CA-0910, 2015 WL 10818740, at *4 (W.D. Tex.
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`Dec. 16, 2015). As party witnesses almost invariably attend trial willingly, “[w]hen no party has
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`alleged or shown any witness’s unwillingness, a court should not attach much weight to the
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`compulsory process factor.” CloudofChange, LLC v. NCR Corp., No. 6-19-cv-00513 (W.D.
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`Tex. Mar. 17, 2020) (citation omitted).
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`Here, Apple points to four likely third-party witnesses who reside in the NDCA. Mot. to
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`Transfer at 7. Rather than refute these four potential witnesses, CCI claims there are other
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`potential witnesses who both parties have already identified that are outside the subpoena power
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`of both this Court and the NDCA. Resp. at 7. In replying, Apple reiterates its identified witnesses
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`while also noting that the out of the four other potential witnesses outside of both the Courts
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`subpoena power, three witnesses are party witnesses. Reply at 4.
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`Absent any showing of unwillingness, the Court will generally not attach much weight to
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`this factor. However, while Apple has pointed out at least four third-party witnesses that a Court
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`in the NDCA could compel to appear if necessary, CGI has been unable to identify any third-
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`party witnesses that might require the use of this Court’s subpoena power. For that reason, the
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`Court finds that this factor weighs very slightly in favor of transfer to the NDCA.
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`iii. The Cost of Attendance for Willing Witnesses
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`Witness convenience “is probably the single most important factor in transfer analysis.”
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`Auto-Dril, Inc. v. Nat’l Oilwell Varco, L.P., No. 6:15-CV-00091, 2016 WL 6909479, at *7
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`(W.D. Tex. Jan. 28, 2016) (citation omitted).
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`To assist in analyzing this factor, the Fifth Circuit adopted a “100-mile rule.”
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`Volkswagen I, 371 F.3d at 204–205; see also Volkswagen II, 545 F.3d at 317. “When the
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`distance between an existing venue for trial of a matter and a proposed venue under § 1404(a) is
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`more than 100 miles, the factor of inconvenience to witnesses increases in direct relationship to
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`the additional distance to be traveled.” Volkswagen I, 371 F.3d at 204–05. Consequently, the
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`threshold question is whether the movant’s proposed venue and a plaintiff’s chosen venue are
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`more than 100 miles apart. See Volkswagen II, 545 F.3d at 317. If the distance is greater, then a
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`court will consider the distances between the witnesses and the two proposed venues. See id.
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`As previously stated by this Court, “given typical time limits at trial, the Court does not
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`assume that all of the party and third-party witnesses listed in 1404(a) briefing will testify at
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`trial.” Fintiv, Inc., 2019 WL 4743678, at *6. Indeed, the Court assumes only a few party
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`witnesses and even fewer non-party witnesses (if any) will testify at trial. Id. Consequently, long
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`lists of potential party and non-party witnesses do not affect the Court's analysis for this factor.
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`Id.
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`Here, Apple argues that “all of the likely witnesses with knowledge of Apple’s
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`development of emoji with skin-tone variation are in the NDCA, except for one,” the one being
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`Peter Edberg, who lives in Oregon. Mot. to Transfer at 4-5. Furthermore, Apple claims that
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`there is not a single likely witness who resides or works in the WDTX nor does a single likely
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`witness’ work bring them to Apple’s Austin campus. Id. at 5. As well, Apple points to potential
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`third-party witnesses who reside either in the NDCA or on the West Coast. Id at 7 (“At least
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`four likely third-party witnesses reside in the [NDCA]: (1) …[Celia] Vigil, (2) Shervin
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`Afshar…, …(3) Chris Wilson…, and (4) Matt Evans…”). In sum, Apple argues that if this
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`action was tried in the WDTX, it “would require almost every witness Apple is aware of,
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`including all third-party witnesses, to travel from the West Coast.” Id.
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`In countering Apple’s claims, CCI claims that Apple’s argument fails as a threshold
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`matter since it fails to outline the substance of the identified specific witness testimony and
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`therefore the witnesses alleged cannot be considered for this analysis. Resp. at 2. In addition,
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`CCI argues that there are at least 7,000 employees in the Austin campus who likely have
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`knowledge and documents relevant to this case. Id. While this may be true that the Austin
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`campus houses 7,000 employees in this District, there is no evidence cited by CCI that
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`demonstrates a single employee from the Austin campus has knowledge and/or documents
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`relevant to this case.
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`CCI also argues that there are a handful of witnesses that do not reside in California.
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`These witnesses that CCI points to are Katrina Parrott (co-founder of CCI), Peter Edberg
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`(Apple employee), Katy Parrott (co-founder of CCI), Mark Davis (president of the Unicode
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`Consortium), Johnetta Queen (illustrator for CCI) and Gary Evans (software developer for
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`CCI). Id. at 2-3. In pointing out each witness and their role and residing location, CCI argues
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`that the WDTX “provides the most convenient and central location for trial.” Id. at 3. However,
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`this factor does not turn on which location is more central. CCI’s own Response makes clear
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`that while some (or even many) potential witnesses do not reside in California, they also do not
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`live within the WDTX and will be just as inconvenienced to travel to either court. Furthermore,
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`several of these witnesses are party witnesses and do not bear much weight under this factor.
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`Here, since Apple has identified a significant amount of witnesses that reside within the
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`NDCA and CCI has failed to identify a single relevant witness in the WDTX, the Court
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`believes this factor weighs in favor of transfer.
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`iv. Other Factors That Make Trial Easy, Expeditious, and Inexpensive
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`Neither party utilizes this factor in arguing in favor or against transfer, therefore the Court
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`finds this factor neutral.
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`b. The Public Interest Factors Do Not Clearly Establish the Northern District of
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`California is a More Convenient Venue.
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`The relevant public-interest factors, taken as a whole, are neutral. As previously noted,
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`the relevant public-interest factors also do not favor transfer. As previously noted, these factors
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`include: (1) the administrative difficulties flowing from court congestion; (2) the local interest in
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`having localized interests decided at home; (3) the familiarity of the forum with the law governing
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`the case; and (4) the avoidance of unnecessary problems of conflict of laws or the application of
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`foreign law. Volkswagen II, 545 F.3d at 315. The Court will also consider each of these factors
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`in turn.
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`i. The Administrative Difficulties Flowing From Court Congestion
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`Administrative difficulties manifest when litigation accumulates in congested centers
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`instead of being handled at its origin. Gulf Oil, 330 U.S. at 508. This factor concerns “whether
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`there is an appreciable difference in docket congestion between the two forums.” Parsons v.
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`Chesapeake & Ohio Ry. Co., 375 U.S. 71, 73 (1963); Koehring Co. v. Hyde Constr. Co., 324 F.2d
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`295, 296 (5th Cir. 1963).
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`While the WDTX and the NDCA may have “historically had comparable times to trial for
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`civil cases,” the Court feels this has changed in recent years, at least with respect to the Waco
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`Division. For example, recent data shows that “for patent cases since 2016, the average time to
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`trial in NDCA was 34.1 months.” Demaray LLC v Samsung Electronics Co., et al., No. 6-20-cv-
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`636-ADA, Dkt. #115 at 11 (W.D. Tex. Jul. 1, 2021). By contrast, this Court’s Order Governing
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`Proceedings – Patent Case (“OGP”) sets patent cases for trial at 52 weeks after Markman hearings.
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`And despite the large number of cases pending before this Court, the Court has been able to bring
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`patent cases to trial approximately in accordance with its guidance in the OGP. See,
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`e.g., CloudofChange, LLC v. NCR Corporation, No. 6-19-cv-00513 (W.D. Tex., filed Aug. 30,
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`2019) (20.3 months from case filing to trial); VLSI Technology LLC v. Intel Corporation, No. 6-
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`21-cv-00057 (W.D. Tex., filed Apr. 11, 2019) (22.4 months from case filing to trial); Freshub, Inc.
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`et al v. Amazon.Com Inc. et al, No. 6-21-cv-00511 (W.D. Tex., filed Jun. 24, 2019) (23.7 months
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`from case filing to trial); ESW Holdings, Inc. v. Roku, Inc. No. 6-19-cv-00044 (W.D. Tex., filed
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`Feb. 8, 2019) (25.9 months from case filing to trial). In other words, the time to trial for patent
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`cases in the Waco Division is almost 12 months shorter on average than in the NDCA.
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`This is, of course, not a patent case, and the Court is not implying that the guidelines set
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`forth in its OGP apply to copyright cases. The Court simply cites these statistical differences as
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`evidence of the relative speed with which the Waco Division of the Western District of Texas can
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`bring a case to trial – even as its docket rapidly expands.
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`But even setting that aside, the trial backlog in NDCA caused by courthouse closures due
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`to the COVID-19 pandemic beginning in March 2020 would make the time to trial for cases in
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`general even longer. As Apple has pointed out previously, civil trials have been temporarily
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`suspended in NDCA due to COVID-19, and jury trials were not set to resume until at least June 3,
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`2021—after more than one year since the COVID-19 pandemic began. Neonode Smartphone LLC
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`v. Apple Inc., 6:20-CV-00505-ADA, Memorandum Opinion and Order at 11-13. By contrast, this
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`Court conducted its first patent jury trial during the COVID-19 pandemic in October 2020, and
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`has since conducted at least seven jury trials. In the first half of 2021 alone, this Court conducted
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`five patent jury trials in the Waco courthouse. Taken these into consideration, the differences in
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`average time to trial in this Court and the NDCA could be much longer than 12 months. Therefore,
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`this Court agrees with CCI and finds this factor weighs against transfer.
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`ii. The Local Interest in Having Local Interests Decided at Home
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`There is “a local interest in having localized controversies decided at home.” Gulf Oil Corp.
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`v. Gilbert, 330 U.S. 501, 511 (1947); Piper Aircraft, 454 U.S. 235, 260 (1981).
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`In its motion, Apple claims the NDCA has an interest in adjudicating this litigation since
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`Apple is headquartered in Cupertino. Mot. to Transfer at 8. Apple then points out this District
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`has “no plausible localized interest in this action” since CCI is located in a completely different
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`district, the Southern District of Texas. Id. at 8. Furthermore, Apple argues that even though it
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`has an Austin campus, none of the witnesses, evidence, claims, or defenses in this case has any
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`connection to Austin. Id. at 8-9.
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`CCI, while not disputing the NDCA localized interest, counters Apple’s arguments,
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`stating that Apple’s “significant ties to the [WDTX] are well known.” Resp. at 7. While the
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`Court is well aware of Apple’s significant presence in this district, this particular action
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`seemingly lacks any connection to the Austin campus. And CCI’s allegations to the contrary
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`lack any factual support. Therefore, since CCI fails to show that the WDTX has a greater interest
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`in this action than the NDCA, the Court finds this factor weighs in favor of transfer.
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`iii. The Familiarity of the Forum with the Law That Will Govern the Case
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`Both parties agree that this factor is neutral. Mot. to Transfer at 9; Resp. at 8. The Court
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`also agrees.
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`iv. The Avoidance of Unnecessary Problems of Conflict of Laws or the
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`Application of Foreign Law
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`Both parties agree that this factor is neutral. Mot. to Transfer at 9; Resp. at 8. The Court
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`also agrees.
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`Having considered the private and public interest factors, Court’s conclusions for each
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`Conclusion
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`factor is summarized in the following table:
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`Factor
`Relative ease of access to sources of proof
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`The Court’s Finding
`Favors Transfer
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`Availability of compulsory process to secure the
`attendance of witnesses
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`Slightly Favors Transfer
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`Cost of attendance for willing witnesses
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`Favors Transfer
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`All other practical problems that make trial of a
`case easy, expeditious and inexpensive
`
`Neutral
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`Administrative difficulties flowing from court
`congestion
`
`Disfavors Transfer
`
`Local interest in having local interests decided at
`home
`
`Favors Transfer
`
`Familiarity of the forum with the law that will
`govern the case
`
`Avoidance of unnecessary problems of conflict of
`laws or the application of foreign law
`
`Neutral
`
`Neutral
`
`
`
`IT IS THEREFORE ORDERED that Defendant’s Motion to Transfer (ECF No. 21) is
`
`GRANTED. It is further ORDERED that the Clerk of the Court TRANSFER this case to the
`
`Northern District of California.
`
`SIGNED this 7th day of September 2021.
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`13
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