Case 6:21-cv-00667-ADA Document 59 Filed 05/13/22 Page 1 of 8
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`VOIP-PAL.COM, INC.,
`
`Plaintiff
`
`v.
`
`GOOGLE LLC,
`
`Defendants.
`
`
`
`CASE NO. 6:21-cv-00667-ADA
`
`JURY TRIAL DEMANDED
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`REPLY IN SUPPORT OF DEFENDANT GOOGLE LLC’S
`OPPOSED MOTION TO TRANSFER
`
`
`
`
`
`
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00667-ADA Document 59 Filed 05/13/22 Page 2 of 8
`
`Transfer to the NDCA is favored here. The NDCA is more convenient for at least nine
`
`potential witnesses including Google’s employees and inventors of the asserted patents. By
`
`contrast, there are no known party witnesses based solely in the WDTX; rather, one witness works
`
`in Waco part time. In addition, there are two potential prior-art witnesses within the NDCA’s
`
`subpoena power, whereas VoIP-Pal identified only two witnesses within the Court’s subpoena
`
`power, both of whom are irrelevant to this analysis because they are paid consultants. Importantly,
`
`the NDCA has overseen multiple waves of related litigation including two pending cases. It is also
`
`where Google is headquartered and VoIP-Pal maintains evidence. The only connections between
`
`the parties and the WDTX are Google’s Austin office, which plays no known role in this case, and
`
`VoIP-Pal’s “virtual” Waco office, which was established not long before this case was filed.
`
`I.
`
`ARGUMENT1
`
`A.
`
`The Private Interest Factors Favor Transfer
`
`1.
`
`The cost of attendance for willing witnesses favors transfer.
`
`Google is headquartered in the NDCA, which is more convenient for the majority of its
`
`witnesses. See Mot. at 4–5, 7–10. The NDCA is more convenient for nine identified, potential
`
`witnesses: seven Google employees and two inventors. Id.; Opp. at 8–11. No known witnesses are
`
`based solely out of the WDTX. Id.
`
`VoIP-Pal’s arguments highlight that the center of gravity of this case is in the NDCA. For
`
`example, VoIP-Pal faults Google for allegedly calling out in its motion two engineers in Sweden
`
`and two engineers in Washington, while listing nine engineers in Sweden and ten engineers in
`
`Washington in response to VoIP-Pal’s broad venue discovery requests. Opp. at 10. But Google’s
`
`
`1 VoIP-Pal does not dispute that this case could have been brought in the NDCA. See Dkt. 24,
`Defendant Google LLC’s Opposed Motion to Transfer (“Mot.”); Dkt. 46, Plaintiff VoIP-
`Pal.Com’s Opposition to Google LLC’s Opposed Motion to Transfer (“Opp.”).
`
`1
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00667-ADA Document 59 Filed 05/13/22 Page 3 of 8
`Case 6:21-cv-00667-AD
`led 05/13/22 Page 3 of 8
`PUBLIC VERSION
`
`Motion identified the most knowledgeable, non-cumulative individuals—the individuals most
`
`likely to be trial witnesses. VoIP-Pal then asked Google to identify those individuals’ direct
`
`reports, and whothose individuals report to, which Google did. Declaration of Robert W. Unikel
`
`(“Unikel Decl.”)
`
`2. If VoIP-Pal were correct that these additional individuals are also likely trial
`
`witnesses, this would only support Google’s motion to transfer; Washingtonis closer to the NDCA
`
`than to the WDTX,andit is easier to travel from Sweden to the NDCA than to Waco. See Mot. at
`
`9-10.
`
`VolIP-Pal next points to two co-inventors who would travel to the WDTX fortrial. Opp.at
`
`11. But none of these inventors say they would not travel to the NDCA. Dkt. 48-2. In fact, both
`
`reside closer to the NDCAthan to the WDTX:in British Columbia. Jd; Mot. at 6. Thus, the NDCA
`
`is more convenient for these witnesses as well.
`
`Finally, Mr. Williams works in Waco only part-time, from a “virtual office” that was
`
`established after VoIP-Palfiled its Wave 3 case against Google and only about a year before this
`
`case wasfiled. Unikel Decl. |P 3; Ex. 1-2. Mr. Williams also works out of VoIP-Pal’s Washington
`
`office, which is more convenient to the NDCA. Dkt. 26-8. And if VoIP-Pal is correct that “the
`
`convenience of VoIP-Pal’s witnessesis not a factor in the transfer analysis” (Opp. at 11), then the
`
`scales firmly favor transfer.”
`
`? VoIP-Pal levies the unsupported allegation that Google was “less than forthcoming” in venue
`discovery. Opp. at 11. If VoIP-Pal disagreed with the extent or scope of the discovery it received,
`it could have asked to take a deposition or moved to compel additional information.It did neither.
`Google performed a reasonable and diligent investigation and produced responsive information.
`VoIP-Pal points to no specific facts suggesting otherwise. VoIP-Pal alleges that Google did not
`provide evidencethat the accused products were developed in the NDCA (Opp.at 10), but Google
`showedthat there are employees who workon the accused functionalities in the NDCA and none
`
`are in Texas. See, e.g., Dkt. 24-1. Google confirmed in venue discover
`
` Unikel Decl. P 4.
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00667-ADA Document 59 Filed 05/13/22 Page 4 of 8
`
`
`
`2.
`
`The relative ease of access to sources of proof favors transfer.
`
`Both VoIP-Pal’s and Google’s sources of proof favor transfer. VoIP-Pal’s documents
`
`related to VoIP-Pal, its technologies and patents, certain communications, and pleadings and
`
`disclosures from other cases are all maintained in the NDCA. Exs. 3–5. As for Google’s
`
`documents, VoIP-Pal argues that they are just as accessible in the WDTX as in the NDCA (Opp.
`
`at 7), but that is legally erroneous. “[D]espite technological advances that make the physical
`
`location of documents less significant, the location of sources of proof remains a ‘meaningful
`
`factor in the analysis.’” Wet Sounds, Inc. v. Audio Formz, LLC, No. A-17-cv-141-LY, 2017 WL
`
`4547916, at *2 (W.D. Tex. Oct. 11, 2017) (citations omitted). Courts should consider “the location
`
`of document custodians and location where documents are created and maintained, which may
`
`bear on the ease of retrieval.” In re Google LLC, No. 2021-178, 2021 WL 5292267, at *2 (Fed.
`
`Cir. Nov. 15, 2021). Google did just that, identifying the custodians who created and maintained
`
`relevant documents. Dkt. 24-1 ⁋⁋ 4, 6–9. Many of these individuals are located in or nearer to the
`
`NDCA, and none are in the WDTX. Id. Thus, this factor favors transfer.
`
`3.
`The availability of compulsory process favors transfer.
`Google identified two prior artists under the subpoena power of the NDCA (Mot. at 6, 11–
`
`12), whereas VoIP-Pal only identified two paid consultants within the WDTX’s reach (Opp. at 7–
`
`8). Neither Google nor VoIP-Pal have identified prior-art witnesses in the WDTX. Contrary to
`
`VoIP-Pal’s argument (Opp. at 7–8), Google’s identification of prior artists is entitled to weight.
`
`See In re Google, No. 2021-170, 2021 WL 4427899, at *1, 6–7 (Fed. Cir. Sep. 27, 2021) (finding
`
`weight should be given to such witnesses, noting Google’s history in “several previous cases in
`
`which it had called such witnesses to testify during trial.”). Indeed, these artists can provide
`
`information regarding their field and inventions.
`
`3
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00667-ADA Document 59 Filed 05/13/22 Page 5 of 8
`
`VoIP-Pal identifies Mr. George Brunt and Mr. Marcus Reading as witnesses whose
`
`attendance could be compelled by the Court (Opp. at 8), the convenience of these witnesses
`
`“weighs little in the venue analysis” because they appear to be retained consultants, not third-party
`
`fact witnesses. See Berry v. Pilgrim’s Pride Corp., No. 2:16-CV-409-JRG, 2016 WL 6092701, at
`
`*3 (E.D. Tex. Oct. 19, 2016); Exs. 6–9. It is also unclear what information these witnesses have
`
`that VoIP-Pal does not.
`
`4.
`The practical problems favor transfer.
`VoIP-Pal’s Opposition summarizes the waves of related litigation in the NDCA. Opp. at
`
`2–5; Mot. at 1–4. Current Magistrate Judge Virginia DeMarchi was referred to multiple cases in
`
`these waves. Unikel Decl. ¶ 14. Additionally, there are two ongoing NDCA cases involving the
`
`same patents. Unikel Decl. ¶ 15. The NDCA thus has extensive and growing relevant experience.
`
`The mere co-pendency of cases in the WDTX does not weigh against transfer, particularly given
`
`the co-pending motions to transfer. See In re Apple Inc., No. 2022-128, 2022 WL 1196768, at *4
`
`(Fed. Cir. Apr. 22, 2022).
`
`B.
`
` The Public Interest Factors Favor Transfer
`
`1.
`Court congestion favors transfer or is neutral.
`This Court is more “congested” than the NDCA. While median times to trial are similar at
`
`19.1 months in this Court and 22 months in the NDCA (Opp. at 12), this Court has significantly
`
`more open cases (1,153) than Judge Donato (406) or DeMarchi (494).3 Exs. 10–12. Even if the
`
`Court were to find this factor against transfer, it cannot outweigh the other factors that favor
`
`transfer or are neutral. In re Juniper Networks, Inc., 14 F.4th 1313, 1322–23 (Fed. Cir. 2021).
`
`
`3 The cases would likely be assigned to Judge Donato who is currently presiding over related
`cases or Judge DeMarchi who is knowledgeable given her involvement on the prior waves of
`cases. See N.D. Cal. Local Rule 3-12 on Related Cases.
`
`4
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00667-ADA Document 59 Filed 05/13/22 Page 6 of 8
`
`2.
`
`Local interest favors transfer.
`
`The center of gravity is in the NDCA. See In re Apple Inc., 979 F.3d 1332, 1345–1346
`
`(Fed. Cir. 2020) (“[T]he lawsuit ‘calls into question the work and reputation of several individuals
`
`residing’ in NDCA.”). This is true notwithstanding Google’s Austin office, which is unrelated to
`
`this litigation. See id. (to weigh the Austin office in favor of transfer would “improperly conflate
`
`the requirements for establishing venue under 28 U.S.C. § 1400(b) and the requirements for
`
`establishing transfer under § 1404(a).”); In re Juniper, 14 F.4th at 1320–21. And Google’s
`
`footprint is much larger in the NDCA than in the WDTX, with 50,819 employees in the NDCA
`
`and 1,755 in Austin. Dkt. 24-1 ⁋⁋ 2–3. Furthermore, VoIP-Pal’s virtual office was established not
`
`long before this case was filed. Exs. 1–2. “[L]ittle or no weight should be accorded to a party’s
`
`‘recent and ephemeral’ presence in the transferor forum.” In re Juniper, 14 F.4th at 1320–21
`
`(citations omitted).
`
`3.
`
`The Court’s familiarity with the law and the avoidance of conflicts
`concerning the application of foreign law favor transfer.
`This factor favors transfer given the pending cases in the NDCA and the Magistrate
`
`Judge who has been referred to related cases. See Mot. at 14.
`
`4.
`
`The interest of justice favors transfer.
`
`“[W]hile a plaintiff has the privilege of filing his claims in any judicial division appropriate
`
`under the general venue statute, § 1404(a) tempers the effects of the exercise of this privilege.” In
`
`re Volkswagen of Am., Inc., 545 F.3d 304, 313 (Fed. Cir. 2008). The NDCA is the clearly more
`
`convenient forum.
`
`
`
`
`
`5
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00667-ADA Document 59 Filed 05/13/22 Page 7 of 8
`
`DATED: May 6, 2022
`
`
`Respectfully submitted,
`
`By: /s/ Paige Arnette Amstutz
`Paige Arnette Amstutz
`Texas Bar No.: 00796136
`pamstutz@scottdoug.com
`SCOTT, DOUGLASS & MCCONNICO, LLP
`303 Colorado Street, Suite 2400
`Austin, TX 78701
`Tel: (512) 495-6300
`Fax: (512) 495-6399
`
`Robert W. Unikel (Pro Hac Vice)
`robertunikel@paulhastings.com
`John A. Cotiguala (Pro Hac Vice)
`johncotiguala@paulhastings.com
`Matthew Lind (Pro Hac Vice)
`mattlind@paulhastings.com
`Grayson S. Cornwell (Pro Hac Vice)
`graysoncornwell@paulhastings.com
`PAUL HASTINGS LLP
`71 South Wacker Drive, 45th Floor
`Chicago, IL 60606
`Tel: (312) 499-6000
`Fax: (312) 499-6100
`
`Robert R. Laurenzi (Pro Hac Vice)
`robertlaurenzi@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, NY 10166
`Tel: (212) 318-6000
`Fax: (212) 319-4090
`
`Matthias A. Kamber (Pro Hac Vice)
`matthiaskamber@paulhastings.com
`PAUL HASTINGS LLP
`101 California Street, 48th Floor
`San Francisco, CA 94111
`Tel: (415) 856-7000
`Fax: (415) 856-7100
`
`
`
`
`
`
`
`6
`
`PUBLIC VERSION
`
`

`

`Case 6:21-cv-00667-ADA Document 59 Filed 05/13/22 Page 8 of 8
`
`Ariell N. Bratton (Pro Hac Vice)
`ariellbratton@paulhastings.com
`Cole D. Malmberg (Pro Hac Vice)
`colemalmberg@paulhastings.com
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, CA 92121
`Tel: (858) 458-3000
`Fax: (858) 458-3005
`
`Counsel for Defendant Google LLC
`
`CERTIFICATE OF SERVICE
`
`Pursuant to the Federal Rules of Civil Procedure and Local Rule CV-5, I hereby certify
`
`
`
`
`
`
`
`that, on May 6, 2022, all counsel of record who have appeared in these cases are being served
`
`with a copy of the foregoing via the Court’s CM/ECF system.
`
`
`
` /s/ Paige Arnette Amstutz
`Paige Arnette Amstutz
`
`
`
`
`
`7
`
`PUBLIC VERSION
`
`