Case 6:21-cv-00755-ADA Document 71 Filed 06/14/22 Page 1 of 5
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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,
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`Plaintiffs,
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`THALES VISIONIX, INC.,
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`Involuntary Plaintiff,
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`v.
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`META PLATFORMS, INC. and META
`PLATFORMS TECHNOLOGIES, LLC,
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`Defendants.
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`Case No. 6:21-cv-00755-ADA
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`JURY TRIAL DEMANDED
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`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO FILE
`SUR-REPLY [DKT. 68] TO MOTION TO TRANSFER [DKT. 39]
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`Case 6:21-cv-00755-ADA Document 71 Filed 06/14/22 Page 2 of 5
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`The declarations that Meta submitted with its reply brief rebut the previously undisclosed
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`evidence and inaccurate argument that Plaintiffs submitted in their opposition. Meta served
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`discovery requests specifically seeking Plaintiffs’ evidence so that Meta could provide any
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`responsive facts before Plaintiffs’ opposition brief was due. Dkt. 66-19 at 8. Plaintiffs refused to
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`provide that discovery. Id.; Dkt. 66-4 ¶ 16. Instead, Plaintiffs presented the requested information
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`for the first time in their opposition brief, along with new, untrue inferences drawn therefrom.
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`Thus, Meta submitted responsive declarations from Messrs. Wong, Wright, and Melim (all of
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`whom were disclosed in Meta’s opening brief, before venue discovery began, see Dkt. 39-1 ¶¶ 8,
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`10) to address and correct Plaintiffs’ unfounded assertions.
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`Now, Plaintiffs seek leave to file a sur-reply, arguing that it is responsive to those three
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`reply declarations. The Court should reject the sur-reply because it would only add further
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`unsupported and inaccurate arguments, and reward Plaintiffs for refusing to provide responsive
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`evidence in discovery.
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`Wong Declaration. Plaintiffs’ opposition brief sought to ensnare irrelevant Texas
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`employees by arguing that this case will turn on technology far beyond what Plaintiffs accused in
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`their complaint and infringement contentions. Dkt. 61 at 7. But the source code and functionality
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`that Plaintiffs actually sought discovery on belies those arguments. Mr. Wong’s declaration
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`provides a responsive example, identifying the locations of people that checked in the specific
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`source code that Plaintiffs actually requested. Dkt. 66-3 ¶ 2; Dkt. 66-4 ¶ 7. Those people were
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`readily identifiable on the computer that Plaintiffs had before venue briefing began. Dkt. 49 at 7.
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`Meta repeatedly offered to provide, at Plaintiffs’ request, the locations of anyone that checked in
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`allegedly relevant code files. Dkt. 49 at 7. Plaintiffs’ opposition brief stretched their theory of
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`relevance, and Meta fairly rebutted it.
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`Case 6:21-cv-00755-ADA Document 71 Filed 06/14/22 Page 3 of 5
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`Wright Declaration. Meta first learned that Plaintiffs were relying on Mr. Wright’s
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`LinkedIn page when Meta received Plaintiffs’ opposition brief. Dkt. 66-4 ¶ 16. Meta had identified
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`Mr. Wright in its opening brief, discovery responses, and initial disclosures only as a source of
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`information confirming that no Texas employees (including himself) designed or developed the
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`accused functionality. Dkt. 39-1 ¶ 10; Dkt. 66-7 at 17; Dkt. 66-2 ¶¶ 2-3, 5. Despite Plaintiffs’
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`notice of Mr. Wright’s knowledge related to venue, they never sought discovery from him or
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`explored the facts he actually provided. Instead, Plaintiffs relied on inaccurate inferences from
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`LinkedIn.1 Dkt. 61 at 4. Mr. Wright’s declaration explained that he did not develop the tracking
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`technology referenced on LinkedIn, that it was not even Meta’s technology, and that it was never
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`deployed in any Oculus product. Dkt. 66-2 ¶ 4. He also re-affirmed that he and others in Texas did
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`not develop the accused functionality. Dkt. 66-2 ¶¶ 3, 5-6.
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`Melim Declaration. Plaintiffs’ opposition brief newly disclosed that they were relying on
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`LinkedIn pages for a few Texas employees. Dkt. 61 at 6. Mr. Melim’s declaration confirms that
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`none of them designed or developed the accused functionality, consistent with what Plaintiffs were
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`already told in discovery. Dkt. 66-1 ¶¶ 3-4; Dkt. 39-1 ¶ 8; Dkt. 66-7 at 12-38.
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`Meta’s reply declarations responded to the new documents, and demonstrably inaccurate
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`inferences, that Plaintiffs first revealed in their opposition brief but did not disclose in discovery.
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`A sur-reply is therefore not warranted, and Plaintiffs’ motion for leave should be denied.
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`1 Plaintiffs argue that Mr. Wright does not address prior work. Dkt. 68-1 at 2. But that was actually
`addressed in paragraphs 3 and 5 of his declaration, and also provided long ago in venue discovery.
`Dkt. 66-2 ¶¶ 3, 5; Dkt. 39-1 ¶ 10; Dkt. 66-7 at 12, 17. Plaintiffs also, incorrectly, state that Matt
`Hooper “no longer works for Meta” based solely on Mr. Wright having referred to Mr. Hooper’s
`“role” (not Mr. Hooper himself) in the past tense. Dkt. 68-1 at 2. Plaintiffs also made inaccurate
`arguments based on Mr. Hooper’s title on LinkedIn, so Mr. Wright responded to describe Mr.
`Hooper’s actual role. Dkt. 66-2 ¶ 6. Even if titles were significant, employees with at least equally
`significant titles reside in N.D. Cal., including relevant employees, such as the “Head of Product
`Marketing” and “Finance Director.” See, e.g., Dkt. 66-7 at 18-19, 24-44; Dkt. 39-1 ¶¶ 14-15.
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`Case 6:21-cv-00755-ADA Document 71 Filed 06/14/22 Page 4 of 5
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`Dated: June 14, 2022
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`Respectfully submitted,
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`/s/ Ellisen Shelton Turner
`Jeanne M. Heffernan
`Texas State Bar No. 24128395
`KIRKLAND & ELLIS LLP
`401 Congress Avenue
`Austin, TX 78701
`Tel: (512) 678-9100
`Fax: (512) 678-9101
`jheffernan@kirkland.com
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`Ellisen Shelton Turner (pro hac vice)
`Joshua Glucoft (admitted)
`KIRKLAND & ELLIS LLP
`2049 Century Park East, Suite 3700
`Los Angeles, CA 90067
`Tel: (310) 552-4200
`Fax: (310) 552-5900
`ellisen.turner@kirkland.com
`josh.glucoft@kirkland.com
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`Akshay S. Deoras (pro hac vice)
`KIRKLAND & ELLIS LLP
`555 California Street
`San Francisco, CA 94104
`Tel: (415) 439-1400
`Fax: (415) 439-1500
`akshay.deoras@kirkland.com
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`Paige Arnette Amstutz
`Texas State Bar No. 00796136
`SCOTT, DOUGLASS & MCCONNICO, LLP
`303 Colorado Street, Suite 2400
`Austin, TX 78701
`Tel: (512) 495-6300
`Fax: (512) 495-6399
`pamstutz@scottdoug.com
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`Counsel for Defendants Meta Platforms, Inc. and
`Meta Platforms Technologies, LLC
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`Case 6:21-cv-00755-ADA Document 71 Filed 06/14/22 Page 5 of 5
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`CERTIFICATE OF SERVICE
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`Pursuant to the Federal Rules of Civil Procedure, I hereby certify that, on June 14, 2022,
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`all counsel of record who have appeared in this case are being served with a copy of the foregoing
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`via the Court’s CM/ECF system.
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`/s/ Ellisen Shelton Turner
`Ellisen Shelton Turner
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