Case 6:21-cv-00755-ADA Document 59 Filed 04/28/22 Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`GENTEX CORPORATION and
`INDIGO TECHNOLOGIES, LLC,
`Plaintiffs,
`THALES VISIONIX, INC.,
`Involuntary Plaintiff,
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`v.
`META PLATFORMS, INC., and
`FACEBOOK TECHNOLOGIES, LLC,
`Defendants.
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`Case No. 6:21-CV-00755-ADA
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`[PUBLIC] DISCOVERY DISPUTE ORDER
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`The Court hereby resolves the following discovery dispute submitted by email.
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`Summary of the Issue
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`Plaintiffs:
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`Meta moved to transfer venue to Northern California claiming that no relevant individuals
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`reside in this District. That statement, and Meta’s motion, was based on a declaration that hand-
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`selected only certain employees whom Meta deemed relevant within narrowly-selected categories
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`and timeframes. When Plaintiffs sought discovery about the full scope of potentially relevant
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`current and former employees in Texas—where Meta employs over 2,000 individuals and does
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`significant work relating to the accused products—Meta largely refused to provide information
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`beyond what it cherrypicked for its declaration. Exs. A, B. Meta’s effort to force Plaintiffs and
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`the Court to rely on Meta’s say-so about potential witnesses is inconsistent with the very concept
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`of venue discovery. Plaintiffs respectfully request the Court compel Meta to answer the following
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`requests.
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`Case 6:21-cv-00755-ADA Document 59 Filed 04/28/22 Page 2 of 11
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`Defendants:
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`Plaintiffs’ case is about specific accused features in specific accused Oculus products.
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`After extensive investigation, Defendants provided, in verified interrogatory responses and a
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`sworn declaration, the name, location, team, and title for: the engineering teams that are
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`responsible for those accused features; other engineers in Texas that work on the accused Oculus
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`products (even if on unaccused features); the team responsible for Oculus marketing; the RL
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`(Reality Labs, which includes Oculus) Finance team; and any Texas employees that support
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`Oculus sales. Plaintiffs’ assertion that Defendants “hand-selected only certain employees whom
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`Meta deemed relevant” is inaccurate—Defendants used Plaintiffs’ own allegations in the
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`complaint and infringement contentions as the basis for their investigation. Plaintiffs seek a
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`burdensome and likely impossible detour into current and historical information on “over 2,000”
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`employees because they are (or were) allegedly in Texas, even if they have nothing to do with this
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`case or Oculus products. Plaintiffs’ requested relief should be denied.
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`Plaintiffs:
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`Requested Relief
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`Order “Within fourteen (14) days, Defendants must answer Interrogatory No. 1 either (i)
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`in full for all source code made available for inspection, or (ii) by identifying the portions of the
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`source code made available for inspection that are relevant to the accused functionalities, and
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`answering Interrogatory No. 1 for those portions of the code only.”
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`Order “Within fourteen (14) days, Defendants must
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`a) answer Interrogatory No. 3 in full;
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`b) produce documents responsive to Request for Production No. 1 for every current and
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`former employee of Meta and/or Facebook Technologies who is now, or was at the time he or she
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`Case 6:21-cv-00755-ADA Document 59 Filed 04/28/22 Page 3 of 11
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`was employed working on the Oculus Products, located in or otherwise assigned to an office in
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`Texas; and
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`c) produce all documents responsive to Request for Production No. 2 in full.”
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`Order “Within fourteen (14) days, Defendants must produce all documents responsive to
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`Request for Production No. 3 in full.”
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`Defendants:
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`Regarding
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`Interrogatory 1, Plaintiffs’ motion
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`to compel
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`is DENIED as
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`overbroad. However, if, during the venue discovery period, Plaintiffs supplement their
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`infringement contentions to accuse specific source code files, Defendants are ORDERED to,
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`within two weeks thereafter, identify where anyone who checked in such code is based, if known.
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` Regarding Interrogatory 3 and RFPs 1-2, Plaintiffs’ motion to compel is DENIED as
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`overbroad. However, within two weeks of this Order, Defendants are ORDERED to (A)
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`supplement their Interrogatory 3 response to identify any Texas employees within the RL Pillar
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`who may work on any Oculus product, and (B), provide, where available, the names and titles of
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`any employees based in Texas on the teams that may have worked on the accused products both
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`as of when the complaint was filed (i.e., July 2021) and as of when the first accused product was
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`offered for sale (i.e., May 2019).
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`Regarding RFP 3, Plaintiffs’ motion to compel is DENIED as irrelevant.
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`Plaintiffs’ Position
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`Meta moved to transfer venue to Northern California claiming that no relevant individuals
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`reside in this District. That statement, and Meta’s motion, was based on a declaration that hand-
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`selected only certain employees whom Meta deemed relevant within narrowly-selected categories
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`and timeframes. When Plaintiffs sought discovery about the full scope of potentially relevant
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`Case 6:21-cv-00755-ADA Document 59 Filed 04/28/22 Page 4 of 11
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`current and former employees in Texas—where Meta employs over 2,000 individuals and does
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`significant work relating to the accused products—Meta largely refused to provide information
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`beyond what it cherrypicked for its declaration. Exs. A, B. Meta’s effort to force Plaintiffs and
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`the Court to rely on Meta’s say-so about potential witnesses is inconsistent with the very concept
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`of venue discovery. Plaintiffs respectfully request the Court compel Meta to answer the following
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`requests.
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`Interrogatory 1. This interrogatory asks Meta to identify all persons, and their locations,
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`who edited the source code Meta produced to fulfill its obligation under the OGP to produce
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`documents “sufficient to show the operation of the accused product(s).” Meta has refused,
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`claiming that it produced far more source code than is relevant to the case—though it refuses to
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`identify what portions of the code are actually relevant or produce documents to help Plaintiffs
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`make that assessment before fact discovery commences. Instead, Meta has identified only the
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`witnesses and teams in the declaration submitted in support of its transfer motion. And Meta
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`suggests, under Rule 33(d), that Plaintiffs root around in Meta’s source code to identify the names
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`of witnesses who edited it. This is plainly insufficient. It was Meta, not Plaintiffs, who chose the
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`source code to produce. Plaintiffs have spent months asking Meta in vain for guidance to help
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`them understand the code and which sections are relevant. Given that, Meta must either (a) provide
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`the witness identifications and locations for all individuals who edited the code, or (b) identify the
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`portions of the code that are relevant and the witnesses for those. Moreover, it is no answer that
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`Plaintiffs could spend weeks hunting through the code to identify potential witnesses. Rule 33(d)
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`only allows Meta to shift the burden when it is “substantially the same for either party.” This is
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`Meta’s code, on which it can run reports that Plaintiffs cannot. And even then, the code does not
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`identify where the witnesses are located, as Meta’s personnel files would. Meta should be
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`compelled to answer this simple interrogatory.
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`Interrogatory 3 and RFPs 1 and 2. These requests seek core venue discovery identifying
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`potential witnesses in Texas, and there is no basis for Meta to limit its answer as it proposes to do.
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`After initially refusing to provide any information regarding its current and former Texas
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`employees whose work relates to the accused products beyond that in the declaration
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`accompanying its Motion, Meta now agrees to list those employees who are “categorized in”
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`Meta’s Reality Labs “Pillar,” subject to two further exceptions: (a) Meta would not commit to
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`identify former employees, or even employees at the time the Complaint was filed, and (b) it will
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`exclude employees whose “work is not directed specifically to the accused Oculus products.” Ex.
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`C. But Plaintiffs do not have visibility into the “pillars” by which employees are categorized, or
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`how Meta determines what an employee’s work is “directed specifically to.” Indeed, Meta’s
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`categorization appears to exclude individuals whose work may be relevant, like finance and
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`marketing functions. And, critically, although venue is assessed when the complaint was filed, the
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`venue inquiry is not limited to current employees, much less those currently working on the
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`accused functionality. Employees now working on other teams may still have relevant information
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`about the development of the accused products, and former employees with relevant information
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`may be more critical to the venue inquiry as they cannot be compelled to appear in California.
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`Meta must identify Texas-based current and former employees—they are at the heart of the venue
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`dispute. If Meta believes Plaintiffs’ reliance on any witness is misguided, it can so argue on reply.
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`But its subjective views are not a basis to withhold discovery, and Meta’s exceptions only invite
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`gamesmanship.
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`Case 6:21-cv-00755-ADA Document 59 Filed 04/28/22 Page 6 of 11
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`RFP 3. This request seeks documents sufficient to show individuals involved in
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`Facebook’s acquisition of Oculus, which had a major office in Dallas, Texas at the time. That key
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`acquisition led to the development of the accused products, and the individuals who analyzed the
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`Oculus technology, its valuation, and the IP landscape during the transaction are directly relevant
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`to damages and willful infringement, among other things. Indeed, the acquisition is expressly
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`discussed in the Complaint as a part of Plaintiffs’ willfulness allegations. See Complaint, ECF 1,
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`at ¶¶ 52-55.
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`Meta nonetheless claims that the individuals involved in the Facebook-Oculus acquisition
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`are irrelevant, and that the information sought by this request may not exist. As to the latter
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`objection, Meta is unwilling to represent that such information does not exist, so cannot resist
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`production (or at least a reasonable search) on that basis. As to relevance, Meta suggested that
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`such discovery is really fact discovery, not venue discovery. That is wrong. Documents sufficient
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`to show the individuals involved in a key transaction—one that is mentioned in the Complaint and
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`will be a focus of fact discovery—are reasonably calculated to show the location of facts giving
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`rise to the lawsuit as well as potential witnesses. Both issues are well within the bounds of venue
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`discovery. As of the acquisition, for example, Oculus’s Dallas office notably housed its Chief
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`Technology Officer and individuals working for him on technology that is still present in the
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`accused products and likely to be relevant to this case. Meta’s refusal to produce the documents
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`sought by RFP 3 appears calculated to avoid disclosing its clear connection to Texas.
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`Interrogatory 1
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`Defendants’ Position
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`Defendants already identified all teams responsible for any potentially relevant source
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`code, and their locations.
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`The OGP requires documents “sufficient to show the operation of the accused product(s).”
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`Months ago, Defendants timely complied, producing full source code for all accused products
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`(over one terabyte). In verified interrogatory responses and a sworn declaration, Defendants
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`identified the specific teams and individual employees that are responsible for the accused features,
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`based on Plaintiffs’ complaint and infringement contentions, and provided their titles and
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`locations. Ex. A, 7-8, 13-23. Defendants also offered to provide information for any employee
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`that checked in any code that Plaintiffs identify as relevant to their infringement theories, but
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`Plaintiffs refuse to provide any code cites.
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`Plaintiffs’ assertion that it would take “weeks hunting through the code to identify potential
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`witnesses” is not true. In fact, Defendants’ disclosures already satisfy Plaintiffs’ proposal (b)
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`above. Defendants already named all known employees currently responsible for any code
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`relevant to the accused features, and their locations. Defendants also provided software that allows
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`Plaintiffs to easily search those names and see exactly which code they checked in. Thus, Plaintiffs
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`have Defendants’ current knowledge on which code may relate to accused features, and who
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`worked on it. Defendants cannot do more because Defendants still do not know what specific code
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`Plaintiffs allege is infringing. If Plaintiffs choose to identify that specific code, Plaintiffs can also
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`already see the names of everyone who checked in that code. Defendants can then provide the
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`locations (if known) for those people.
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`Plaintiffs’ proposal (a), wherein Defendants would identify “all individuals who edited the
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`code,” is simply unreasonable and unnecessary. The full Oculus code, produced in accordance
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`with the OGP, includes millions of files edited over years by thousands of current and former
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`employees. It would be extremely burdensome for Defendants to identify and locate the thousands
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`of employees who touched any aspect of the code, the vast majority of whom worked on code that
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`is unaccused and irrelevant to this case.
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`Interrogatory 3, RFPs 1-2
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`The Court should deny Plaintiffs’ requests on Interrogatory 3 and RFP 1 in view of what
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`Defendants agree to provide, and on RFP 2 as irrelevant and overbroad.
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`Interrogatory 3 and RFP 2 seek discovery on Texas employees beyond those relevant to
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`any accused products. Defendants already identified Texas software engineers and sales
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`employees who currently work on the accused products. Defendants also confirmed they found
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`no Texas marketing employees responsible for the accused products and no Texas employees on
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`the applicable RL Finance Team. Ex. A at 11-12.
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`Plaintiffs demand discovery on all other Texas employees, but fail to articulate why they
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`are relevant. Meta has dozens of products and projects, such as WhatsApp and Instagram, that
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`correspond to organizational groups (“Pillars”) that are irrelevant to this case. Plaintiffs’ complaint
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`that they “do not have visibility into the ‘pillars’” lacks merit—a venue motion does not render
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`inarguably irrelevant people and products suddenly discoverable. Nonetheless, Defendants are
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`willing to (1) supplement their response to identify Texas employees within the RL Pillar who may
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`work on any Oculus product, even if not accused, and (2) provide, where available, the names and
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`titles of employees in Texas on the teams that may have worked on the accused products when the
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`complaint was filed and when the first accused product was offered for sale. This information
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`would disclose employees who have since left the company or switched teams.
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`Plaintiffs’ RFP 1 seeks current and historical information about individuals everywhere—
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`even far outside this forum and the potential transferee forum—regardless of whether they
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`work(ed) on any Oculus products. Plaintiffs have not explained why such information is relevant,
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`Case 6:21-cv-00755-ADA Document 59 Filed 04/28/22 Page 9 of 11
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`and Defendants have not found any reliable way to compile such unbounded historical
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`information. The Court should deny Plaintiffs’ motion to compel as to RFP 1, which seeks
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`information much broader than Interrogatory 3 and RFP 2.
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`RFP 3
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`The Court should deny discovery into individuals that worked on a corporate transaction
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`that occurred five years before any accused products were launched.
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`Meta acquired Oculus VR in 2014. Meta launched its first Oculus product, Rift, in 2016.
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`Plaintiffs’ complaint asserts that Rift “used external sensors for tracking” and hence is not accused.
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`Dkt. 1 ¶44. The earliest accused products, including Quest, did not launch until 2019—five years
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`after the acquisition. According to Plaintiffs’ complaint, Quest was a fundamental technology
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`shift relative to prior, unaccused generations because it did not rely on external sensors, which
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`Plaintiffs contend is central to their claimed “sourceless” inventions. Dkt. 1 ¶¶44-46 (“Unlike the
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`Accused Products, the [unaccused] Oculus Rift used external sensors for tracking…. Unlike the
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`[unaccused] Oculus Rift, the Oculus Quest … featured sourceless tracking.”). The work in 2014,
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`including any non-privileged “due diligence,” would therefore not be on the accused technology
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`from 2019 that did not yet even exist.
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`Resolution
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`Interrogatory 1: Here, Defendants made an early production of source code that
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`encompasses more than just the accused product. Defendants then “identified the specific teams
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`and individual employees that are responsible for the accused features, based on Plaintiffs’
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`complaint and infringement contentions, and provided their titles and locations.” The Defendants
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`are willing to provide responsive information for additional portions of the produced code that
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`plaintiff additionally identifies as relevant.
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`The Court finds it unnecessary to order the Defendants to provide any additional
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`information now because Defendants already made a first pass review and “identified the specific
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`teams and individual employees that are responsible for the accused features, based on Plaintiffs’
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`complaint and infringement contentions, and provided their titles and locations.”
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`The Court finds that Defendants have sufficiently responded to Interrogatory 1 and
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`ORDERS that Plaintiffs’ motion to compel is DENIED. However, if, during the venue discovery
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`period, Plaintiffs supplement their infringement contentions to accuse specific source code files,
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`Defendants are ORDERED to, within two weeks thereafter, identify where anyone who checked
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`in such code is based, if known.
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`Interrogatory 3 and RFP 2: Defendants argue that interrogatory 3 and RFP 2 are irrelevant
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`and overbroad. These discovery requests relate to information about individuals related to “virtual
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`or augmented reality or the Oculus Products.” These requests do not encompass everyone in the
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`WhatsApp and Instagram pillars—at most, the request may encompass a small group of
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`individuals within these pillars who worked on virtual reality, augmented reality, or the Oculus
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`Products. The Court, like Plaintiff, lacks information about how Defendants’ pillars work, and the
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`Court shares Plaintiff’s concern that narrowing the requests to just the “RL Pillar” may be too
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`narrow.
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`Defendants seek to limit the relevant time to either the filing of the complaint or the first
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`offer for sale. The Court is persuaded by Plaintiff that the time should also encompass the
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`acquisition of Oculus because this information is relevant to the state of the art used as the baseline
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`for comparing the accused technology, be it in valuation or as prior art.
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`The Court finds these discovery requests relevant and not overbroad. The Court ORDERS
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`that Defendants must answer Plaintiffs’ Venue Interrogatory No. 3 in full and produce all non-
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`privileged documents responsive to Plaintiffs’ Venue Requests for Production Nos. 2 within 14
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`days.
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`RFP 1: Defendants argue that individuals outside of Texas are not relevant regardless of
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`whether they worked on Oculus products. Plaintiff’s relief sought is narrowed to individuals
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`within Texas who worked on Oculus Products or is working on Oculus Products. Thus, the Court
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`grants Plaintiff its narrowly requested relief.
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`The Court ORDERS Defendants produce within 14 days documents responsive to Request
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`for Production No. 1, but only for current and former employees of Meta and/or Facebook
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`Technologies who is now or was at the time he or she was employed working on the Oculus
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`Products, located in or otherwise assigned to an office in Texas.
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`RFP 3: Defendants argue that the discovery is not relevant because Oculus had not yet
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`shifted to the accused technology at that time. Even if this is the case, those individuals at Oculus
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`have relevant knowledge of the state of the art used as the baseline for comparing the accused
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`technology, be it in valuation or as prior art.
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`The Court ORDERS that Defendants must produce within 14 days all non-privileged
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`documents responsive to Plaintiffs’ Venue Requests for Production Nos. 3.
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`SIGNED this 13th day of April, 2022.
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`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
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