Case 6:21-cv-01045-ADA Document 66 Filed 06/06/22 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Case No. 6:21-cv-1045
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`JURY TRIAL DEMANDED
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`ARIGNA TECHNOLOGY LIMITED,
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`Plaintiff,
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`vs.
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`GOOGLE LLC,
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`Defendant.
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`DISCOVERY ORDER
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`The Court hereby resolves the following discovery dispute which Arigna Technology
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`Limited (“Arigna”) and Google LLC (“Google”) submitted by email on May 25, 2022.
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`Summary of the Issues
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`1.
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`Whether the Court should order Google to present witnesses for venue depositions
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`and also order Arigna to present a witness for a venue deposition.
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`2.
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`Whether the Court should issue a protective order to preclude a venue deposition
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`of Arigna where it disclaims connections to the Western District of Texas and the Northern District
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`of California and also to preclude a venue deposition of Google where it has demonstrated no
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`relevant connections to the Western District of Texas and venue discovery closed on May 23.
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`Arigna’s Position
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`1.
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`Arigna timely served two deposition notices on Google seeking venue discovery to
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`which it is plainly entitled, but Google has refused to make any witness available at all.
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`Arigna served a Rule 30(b)(6) deposition notice seeking to depose Google’s declarant—
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`Andrew Rope—whose declaration Google advances in support of its transfer motion. ECF No. 43-
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`2 (Rope Decl.). Arigna also served a single Rule 30(b)(1) deposition notice for testimony from
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`Case 6:21-cv-01045-ADA Document 66 Filed 06/06/22 Page 2 of 8
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`Vimal Natarajan, a Google employee in Chicago whom Google touts as having “knowledge
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`regarding technical aspects of the Accused Pixel Products, including RF architecture and product
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`design for the Accused Pixel Products.” Id. ¶ 8.
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`Both of these depositions are squarely appropriate. OGP 4.1 provides for up to ten hours
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`of deposition testimony within venue discovery. Recognizing this, Google already served
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`responses and objections to Arigna’s Rule 30(b)(6) notice that agreed to provide a witness on
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`almost all of the topics. See Ex. A. Yet now Google says it will not produce a 30(b)(6) witness at
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`all. There is no principled basis for Google to deny Arigna a deposition of its own declarant whose
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`declaration it claims warrants transfer of this case to the Northern District of California.
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`Mr. Natarajan’s deposition is similarly important. Google has identified him as having
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`relevant technical knowledge. Given that he is in Chicago, Arigna intends to explore the extent to
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`which other relevant Google witnesses work with him in Chicago and the extent to which relevant
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`documents are maintained there.
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`Google’s apparent basis for refusing to put up any witness for deposition is that it will not
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`allow a Google witness to be deposed unless Arigna makes its own witness(es) available. This is
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`improper gamesmanship that has no connection to the propriety of the requested discovery. And,
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`as explained below (next issue), conditioning Google’s depositions on Arigna’s willingness to do
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`the same thing makes no sense where Arigna has expressly disclaimed any connection to the
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`relevant venues.
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`Courts have long held that it is unfair to rely on a declaration without making the declarant
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`available for deposition. Indeed, “courts often strike testimony where a witness refuses to submit
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`to cross-examination.” Consumer Fin. Prot. Bureau v. Access Funding, LLC, 2021 WL 2915118,
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`at *21 (D. Md. July 12, 2021) (citing cases).
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`Nor do Google’s written discovery responses remotely supplant the need for deposition
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`testimony. Rather, they make it imperative. For example, Google’s limited response to
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`Interrogatory No. 5 identifies 19 relevant witnesses in Chicago—for whom travel to Waco would
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`be more convenient—and yet Google has denied Arigna descriptions of what they do. Moreover,
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`Google’s interrogatory responses assert that its Austin employees do not “currently” work on the
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`accused Pixel smartphones, without allowing Arigna to test that assertion with deposition
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`questions.
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`Relief: The Court should order that Google “must produce witnesses in response to
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`Arigna’s deposition notices.”
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`2.
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`Despite undisputed evidence that Arigna lacks connections with the two judicial
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`districts at issue in Google’s pending transfer motion, Google insists on taking a 30(b)(6)
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`deposition of Arigna as pretext to avoid properly-noticed depositions of its own witnesses (and to
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`harass Arigna).
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`Google moved to transfer venue from this Court to the Northern District of California. It
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`served several interrogatories probing Arigna’s connections with each district. Arigna
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`responded—without equivocation—that it has none. Arigna’s responses, for example, include:
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`● Arigna’s principal place of business is in Ireland;
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`● “Arigna does not currently conduct business activities or maintain a place of business or
`office in the State of Texas or State of California . . .”; and
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`● “Arigna has not created or maintained documents or physical evidence relevant to any
`claim or defense in this Action in the Western District of Texas or the Northern District of
`California . . .”
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`Thus, to the extent Google intends to argue that transfer is appropriate because Arigna lacks any
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`connection to this District, Google has everything it needs to make that argument.
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`Nevertheless, Google insists on taking a 30(b)(6) deposition of Arigna as a means to engage
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`in inappropriate horse trading: Google will only agree to make its witnesses available for venue
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`depositions if Arigna presents a corporate witness.
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`The two are not equivalent. Arigna has unequivocally stated it has no offices, no
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`documents, no evidence, and no other connections of its own to the Western District of Texas. The
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`same cannot be said of Google.
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`From public sources, it is clear that relevant Google witnesses and documents are located
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`in this District and are otherwise far afield from California. Google has over 1,700 employees in
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`Texas, with offices in Austin and Dallas and a $600M data center in Midlothian. Per LinkedIn,
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`Google’s Austin employees include Sanjeev Suresh, an integrated circuit design engineer, and
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`Matthew Hill, the Head of Partner Engineering—both of whom are relevant witnesses. Google’s
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`deep connections to this District—and to Chicago, which is closer to this District than California—
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`make exploring these connections in depositions wholly appropriate.
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`There is no equivalent basis to depose Arigna, because there is nothing to discover that is
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`relevant to Google’s transfer motion—Arigna does not claim a connection with either Texas or
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`California.
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`Relief: The Court should enter a protective order that “Arigna is not required to present a
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`witness for deposition on venue topics.”
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`Google’s Position
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`The two issues raised by the parties are intertwined and should be decided together, and
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`thus Google addresses both issues together in its position statement. Both present the same
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`questions of fairness and compliance with OGP 4.1: (1) whether both parties should be entitled to
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`take venue depositions, or (2) only Arigna can take venue depositions of Google, while Google
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`cannot take venue depositions of Arigna. Dkt. 44.
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`Arigna proposes a one-sided approach where only it can take venue depositions of Google,
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`while Google is precluded from doing the same. That proposal is inequitable and should be
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`rejected. Instead, an equitable solution should be adopted where both parties can take depositions
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`as requested in their respective deposition notices. Alternatively, another equitable solution is for
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`both sides to forgo venue depositions based on the sufficiency of their written discovery responses
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`and not delay the completion of venue discovery past the May 23 deadline (i.e., last Monday). Id.
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`To be clear, Google has not refused to make its witnesses available, as Arigna alleges. In
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`compliance with OGP 4.1, Google offered two deponents, Andrew Rope and Vimal Natarajan.
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`But after Google requested that Arigna do the same and produce its own witness in response to
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`Google’s Rule 30(b)(6) notice, Arigna refused.
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`Arigna excuses its refusal on the grounds that its interrogatory responses disclaim
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`connections to W.D. Tex. and N.D. Cal. But Arigna’s excuses do not justify its one-sided proposal
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`of blocking Google from deposing Arigna, nor do they distinguish Arigna from Google such that
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`only Arigna should be allowed to depose Google. To the contrary, either both parties should
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`proceed with depositions or neither should for three reasons.
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`First, Arigna is not entitled to a protective order because Google needs relevant discovery
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`from an Arigna corporate witness on topics that have not been adequately addressed through
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`written discovery. As just one example, Arigna has an agreement with Microchip Technology, a
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`prior assignee of the asserted ’164 Patent who acquired the patent as part of its acquisition of the
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`original assignee, California-based Microsemi. Under their agreement, Microchip must cooperate
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`with Arigna on both technical and damages aspects of this case. Google should be allowed to
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`explore this agreement with Arigna and the extent to which Microchip’s California employees
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`(including former Microsemi employees) may be relevant witnesses. Google is also entitled to
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`explore Arigna’s assertion that all its business activities are carried out in Ireland when Mr. Padian,
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`Arigna’s director, is based in the U.S. More generally, Google should be permitted to vet whether
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`Arigna has had any employees, agents, offices, business dealings, and other activities in California.
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`Recognizing that these issues may not require the full ten hours of deposition time permitted by
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`OGP 4.1, Google offered to limit its deposition to only three hours, which Arigna refused.
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`Second, Arigna and Google are similarly situated with respect to sufficiency of written
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`discovery. Arigna’s contention that its interrogatory responses “unequivocally” show that it has
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`no relevant witnesses in either N.D. Cal. or W.D. Tex. does not distinguish Arigna from Google.
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`Google’s interrogatory responses and its transfer motion and supporting declarations) are equally
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`unequivocal in showing that Google has no relevant witnesses in Texas, and that most of its
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`witnesses are in California.
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`The two Google employees in Texas that Arigna references, Sanjeev Suresh and Matthew
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`Hill, are not relevant witnesses. As Google’s discovery responses explain, Mr. Suresh has had no
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`involvement with the accused Pixel phones and Mr. Hill’s only role was in customer support (e.g.,
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`call centers, help centers), not any technical, sales, or marketing role related to Pixel phones. A
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`venue deposition is not required merely to confirm those facts. Google’s responses also explain
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`that none of its Texas offices or personnel have any relevance to Arigna’s allegations against Pixel
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`products. See In re Google LLC, No. 2021-171, 2021 WL 4592280, at *5 (Fed. Cir. Oct. 6, 2021)
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`(rejecting reliance on defendant’s “general presence” in transferor forum to deny transfer). Thus,
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`if Arigna’s request for a protective order is warranted based on the completeness of its
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`interrogatory responses, then a protective order for Google is equally warranted based on the
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`completeness of Google’s interrogatory responses.
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`Third, Arigna’s purported reasons for demanding the depositions are irrelevant to deciding
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`Google’s motion to transfer to N.D. Cal. Arigna admits that the primary purpose of its depositions
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`of Google is to explore connections between Google and Chicago (i.e., N.D. Ill.). But N.D. Ill. is
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`not the transferor forum (W.D. Tex.) or the proposed transferee forum (N.D. Cal.), nor is it close
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`to either forum. As this Court has held, the transfer analysis only compares the convenience
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`between the transferor and transferee forums, and “is not altered by the presence of other witnesses
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`and documents in places outside both forums.” LoganTree, LP v. Apple Inc., 6:21-cv-397-ADA,
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`2022 WL 1491097, at *5 (W.D. Tex. May 11, 2022) (citing Federal Circuit cases). Here, Chicago
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`is over 1,000 miles away from both W.D. Tex. and N.D. Cal. And the travel time from Chicago
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`to Waco is longer given the absence of direct flights from Chicago to Waco, compared to the many
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`direct flights from Chicago to N.D. Cal. Contrary to Arigna’s assertions, travel from Chicago to
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`W.D. Tex. is not more convenient than travel from Chicago to N.D. Cal. See In re Apple Inc., No.
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`2022-128, 2022 WL 1196768, at *3 (Fed. Cir. Apr. 22, 2022) (finding that travel from Florida to
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`W.D. Tex. “will undoubtedly impose a similar burden” as travel from Florida to N.D. Cal.); see
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`also In re Google LLC, No. 2021-170, 2021 WL 4427899, at *4 (Fed. Cir. Sept. 27, 2021) (holding
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`that “time is a more important metric than distance” because there are no major airports in Waco.).
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`Relief: Order that “Both parties, Arigna and Google, must produce witnesses on venue in
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`response to their respective deposition notices.”
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`Alternative Relief: The Court enters a protective order that “Both parties, Arigna and
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`Google, are not required to present a witness for deposition on venue topics.”
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`ORDER
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`After considering the parties’ respective position statements submitted to the Court by
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`email on May 25, 2022, and the parties’ oral argument on May 27, 2022, it is hereby ORDERED
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`that:
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`1.
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`Google will present both a corporate witness and Google employee Vimal
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`Natarajan for venue discovery depositions at mutually agreeable dates and times;
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`2.
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`Arigna will present a corporate witness for a venue discovery deposition not to
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`exceed three record hours at a mutually agreeable date and time;
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`3.
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`4.
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`The close of venue discovery in this matter is extended to June 10, 2022; and
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`Arigna’s opposition to Google’s Motion to Transfer Venue (Dkt. 43) shall be due
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`on June 24, 2022, and Google’s reply brief shall be due on July 8, 2022.
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`SIGNED this 6th day of June, 2022.
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`________________________________
`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
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