IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Case No. 6:21-cv-00984-ADA
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`JURY TRIAL DEMANDED
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`v.
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`APPLE INC.,
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`Defendant.
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`Case 6:21-cv-00984-ADA Document 82 Filed 08/16/22 Page 1 of 8
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`JAWBONE INNOVATIONS, LLC,
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`Plaintiff,
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`PLAINTIFF JAWBONE INNOVATIONS, LLC’S RESPONSE IN OPPOSITION
`TO DEFENDANT APPLE INC.’S MOTION FOR LEAVE
`TO SUPPLEMENT THE RECORD ON APPLE’S MOTION TO TRANSFER (DKT. 78)
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`I.
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`II.
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`III.
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`IV.
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`Case 6:21-cv-00984-ADA Document 82 Filed 08/16/22 Page 2 of 8
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`TABLE OF CONTENTS
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`Page(s)
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`INTRODUCTION .............................................................................................................. 1
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`BACKGROUND ................................................................................................................ 1
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`LEGAL STANDARD ......................................................................................................... 1
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`ARGUMENT ...................................................................................................................... 2
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`A.
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`B.
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`C.
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`Apple Has No Explanation For Its Delay ............................................................... 2
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`The Information Is Not Important........................................................................... 3
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`Jawbone Will Be Prejudiced by the New Declarations and a Continuance
`Will Not Cure the Prejudice .................................................................................... 3
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`V.
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`CONCLUSION ................................................................................................................... 4
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`i
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`Case 6:21-cv-00984-ADA Document 82 Filed 08/16/22 Page 3 of 8
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Al- Khawaldeh v. Tackett,
`No. 1:20-CV-01079-RP, 2021 WL 2322930 (W.D. Tex. June 7, 2021) ...................................1
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`Shepherd ex rel. Estate of Shepherd v. City of Shreveport,
`920 F.3d 278 (5th Cir. 2019) .....................................................................................................1
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`Scramoge Technology Ltd. v. Apple Inc.,
`No. 21-cv-00579, ECF No. 77 (May 17, 2022, W.D.T.X.) ...................................................1, 2
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`ii
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`Case 6:21-cv-00984-ADA Document 82 Filed 08/16/22 Page 4 of 8
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`I.
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`INTRODUCTION
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`Defendant Apple, Inc. (“Apple”) filed a motion seeking to introduce six new declarations
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`into the record on its motion to transfer. (Dkt. 78, “Motion.”) The Court should deny the Motion
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`because Apple has not shown good cause.
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`II.
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`BACKGROUND
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`Jawbone filed its initial Complaint in this action on September 23, 2021. See Dkt. 1.
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`Jawbone filed an Amended Complaint on December 23, 2021. See Dkt. 19. Apple filed the instant
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`Motion to transfer on May 2, 2022. See Dkt. 38. Pursuant to the Court’s Order Governing
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`Proceedings – Patent Cases, the Parties then engaged in venue discovery. On May 17, 2022, the
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`Court issued an Order granting Apple’s Motion to Transfer in Scramoge Technology Ltd. v. Apple
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`Inc., No. 21-cv-00579, ECF No. 77 (May 17, 2022, W.D.T.X.) (“Scramoge”). Venue discovery
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`has been extended to account for Apple’s insufficient responses and to allow Jawbone time to
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`depose Apple’s witnesses, which is still ongoing. (Dkt. 71.) On August 2, 2022, Apple filed this
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`Motion.
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`III. LEGAL STANDARD
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`Motions for leave to supplement are evaluated under a “good cause” standard. Al-
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`Khawaldeh v. Tackett, No. 1:20-CV-01079-RP, 2021 WL 2322930, at *1 (W.D. Tex. June 7, 2021)
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`(citing Shepherd ex rel. Estate of Shepherd v. City of Shreveport, 920 F.3d 278, 287 (5th Cir.
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`2019)). “Four factors are relevant to a showing of good cause: (1) the explanation for the failure
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`to timely comply with the scheduling order; (2) the importance of the evidence; (3) potential
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`prejudice in allowing the evidence; and (4) the availability of a continuance to cure such
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`prejudice.” Id. at *2.
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`Case 6:21-cv-00984-ADA Document 82 Filed 08/16/22 Page 5 of 8
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`IV. ARGUMENT
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`The Court should deny Apple’s Motion to Supplement because it cannot show good cause.
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`A.
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`Apple Has No Explanation for Its Delay
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`Apple tacitly admits it had all of the facts it seeks to add to the record in its possession as
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`of the time it filed its original transfer motion. Motion at 3. At that time, however, it made the
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`strategic choice not to include them with the motion. The only reason it cites for including those
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`facts now (more than three months later) is the Court’s Scramoge Order. Id. The Scramoge Order
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`does not supply good cause to supplement; indeed, the gravamen of the Court’s Order is that
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`Apple’s pro forma declarations are not reliable because Apple’s witness, Mr. Rollins, would not
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`have sufficient time to perform the necessary research to reliably make the statements in his
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`declarations. Scramoge Order at 9 (“In summary, the scope, content, and frequency of declarations
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`submitted by Mr. Rollins shows that they are attorney-crafted documents full of hearsay with little
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`to no evidentiary value.”). The Order nowhere suggested that Apple was allowed to supplement
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`its transfer motion to include statements it should have included originally.
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`Even if the Scramoge Order could supply good cause to supplement, Apple’s supplement
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`is untimely and there is no justifiable explanation for its delay. The Scramoge Order issued on
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`May 17, 2022, shortly after Apple filed its transfer motion. Apple did not seek leave to supplement
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`the record at that point. Instead, it waited until August 2, long after the originally scheduled close
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`of venue discovery. See generally Motion. Apple’s only explanation is that “Apple promptly
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`evaluated the effect and impact of the Scramoge Order on the present Transfer Motion and Rollins
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`Declaration to determine whether supplementation here was needed; scheduled time with each of
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`the witnesses submitting supplemental declarations to prepare, review, and finalize their
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`declarations; contacted opposing counsel to meet and confer on the present motion; and diligently
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`prepared and filed the present motion.” Motion at 3. Apple does not provide any evidence of when
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`2
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`Case 6:21-cv-00984-ADA Document 82 Filed 08/16/22 Page 6 of 8
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`it began to perform these actions, or how long each took. Indeed, it provides no evidence at all of
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`any diligence, only attorney argument. Id. Most critically, Apple does not explain why it took
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`nearly three months to perform all of these activities. Accordingly, Apple has not shown diligence
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`and this factor weighs against its Motion.
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`B.
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`The Information Is Not Important
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`Apple argues both that its new declarations are critically important (Motion at 3-4) and that
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`the information is “consistent with and the same in scope as the information already provided in
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`the Rollins Declaration.” Motion at 4. If there is no new information, then the declarations are
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`merely cumulative of the Rollins Declaration and are not important. On the other hand, if there
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`truly is new information, Apple cannot show that it could not have included that information with
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`its original Transfer Motion, and thus has not acted with diligence.
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`Accordingly, this factor should weigh against supplementation.
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`C.
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`Jawbone Will Be Prejudiced by the New Declarations and a
`Continuance Will Not Cure the Prejudice
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`Apple’s Motion seeks to add six new witnesses just as venue discovery was closing.
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`Jawbone will be prejudiced by having to respond to these new witnesses and facts, especially as it
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`has already served its allotment of interrogatories and requests for production under the OGP.
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`Further, Apple’s offer to further extend venue discovery does not cure the prejudice. The
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`parties have already agreed to extend discovery to allow Jawbone to depose three of its employees
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`first disclosed in Apple’s July 29, 2022 Supplemental Responses to Jawbone’s Venue
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`Interrogatories. Those depositions are currently scheduled for August 19 and 22, 2022, with one
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`witness’s deposition still to be scheduled. If Jawbone needs to depose the six new witnesses, it
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`will require significantly more time and effort.
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`Case 6:21-cv-00984-ADA Document 82 Filed 08/16/22 Page 7 of 8
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`V.
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`CONCLUSION
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`For the foregoing reasons, Jawbone requests that the Court deny Apple’s Motion for Leave
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`to Supplement the Record on Apple’s Motion to Transfer.
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`Dated: August 16, 2022
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`Respectfully submitted,
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`/s/ Richard Cowell
`Raymond W. Mort, III
`Texas Bar No. 00791308
`Email: raymort@austinlaw.com
`THE MORT LAW FIRM, PLLC
`100 Congress Avenue, Suite 2000
`Austin, Texas 78701
`Tel/Fax: 512-865-7950
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`OF COUNSEL:
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`Alfred R. Fabricant (Admitted Pro Hac Vice)
`NY Bar No. 2219392
`Email: ffabricant@fabricantllp.com
`Peter Lambrianakos (Admitted Pro Hac Vice)
`NY Bar No. 2894392
`Email: plambrianakos@fabricantllp.com
`Vincent J. Rubino, III (Admitted Pro Hac Vice)
`NY Bar No. 4557435
`Email: vrubino@fabricantllp.com
`Richard Cowell (Admitted Pro Hac Vice)
`NY Bar No. 4617759
`Email: rcowell@fabricantllp.com
`FABRICANT LLP
`411 Theodore Fremd Avenue, Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
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`ATTORNEYS FOR PLAINTIFF
` JAWBONE INNOVATIONS, LLC
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`Case 6:21-cv-00984-ADA Document 82 Filed 08/16/22 Page 8 of 8
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`CERTIFICATE OF SEVICE
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`I hereby certify that on August 16, 2022, I electronically filed the foregoing with the Clerk
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`of Court using the CM/ECF system, which will send notification of such filing via electronic mail
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`to all counsel of record. Any other counsel of record will be served by first class U.S. mail.
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`/s/ Richard Cowell
` Richard Cowell
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