Case 6:21-cv-01101-ADA Document 39 Filed 06/29/22 Page 1 of 8
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`PUBLIC VERSION
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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` AIRE TECHNOLOGY LTD.,
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`Plaintiff,
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`v.
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`APPLE INC.,
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`Defendant.
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`Civil Action No. 6:21-cv-1101-ADA
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`JURY TRIAL DEMANDED
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`DEFENDANT APPLE INC.’S SEALED OPPOSED MOTION FOR LEAVE TO
`SUPPLEMENT THE RECORD ON APPLE’S MOTION TO TRANSFER
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`I.
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`INTRODUCTION
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`Pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, Apple respectfully
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`requests leave to supplement the record on its motion to transfer venue (Dkt. No. 24) (“Transfer
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`Motion”), to include declarations (Exs. 1-7) from the Apple employees identified by Mark
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`Rollins in his declaration in support of Apple’s Transfer Motion (Dkt. 24-2, “Rollins
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`Declaration”). Each of these declarations is from an Apple witness already identified in Apple’s
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`Transfer Motion and the Rollins Declaration, except for one person
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` who is
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`replacing a previously identified licensing witness
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`Apple seeks leave to submit these declarations to address the Court’s guidance and
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`criticisms of Mark Rollins’s similar declaration testimony in its Order granting Apple’s motion
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`to transfer in Scramoge Technology Ltd. v. Apple Inc., No. 6:21-cv-00579, ECF No. 82 (May 25,
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`2022, W.D. Tex.) (“Scramoge”). Apple respectfully submits that there is good cause for this
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`supplementation because (1) the Court’s Order in Scramoge issued after Apple filed its Transfer
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`Motion in this case, and Apple believes that, in light of the criticisms there, the Court would
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`Case 6:21-cv-01101-ADA Document 39 Filed 06/29/22 Page 2 of 8
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`benefit from hearing directly from the Apple employees identified in the Rollins Declaration; (2)
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`the information that these witnesses provide is important to the venue analysis; (3) Aire will not
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`be prejudiced because (a) Apple already identified these witnesses in its Transfer Motion and
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`Rollins Declaration, (b) these witnesses’ declarations are consistent with the information already
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`provided in the corresponding paragraphs of the Rollins Declaration, and (c) Apple recently
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`providedthese declarations to Aire as part of venue discovery, thereby affording Aire time to
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`depose any one or moreofthese individuals before its responsive venue brief is due, if Aire
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`choosesto do so; and (4) a continuanceis not necessary, but is available to cure any potential
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`prejudice to Aire.
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`In accordance with the Western District of Texas Local Rules, Apple has attached the
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`declarations it seeks to supplementas exhibits to this motion. W.D. Tex. Civ. R. 7(d).
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`I.
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`BACKGROUND
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`On April 14, 2022, Apple moved to transfer this case to the Northern District of
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`California under 28 U.S.C. § 1404(a). In its Transfer Motion, Apple relied on the Rollins
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`Declaration to establish certain facts, such as the relevance, role, and locations of witnesses and
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`their teams, and the relevance and locations of various categories of documents. On April 19,
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`2022, Aire served written venue discovery on Apple, which, pursuant to the Court’s OGP,
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`extended the date for Aire’s response to the Transfer Motion until July 7, 2022. Since that
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`discovery was served, the parties have been engaging in venue-related discovery. On June 22,
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`2022, Apple served on Aire the declarations attached hereto, as exhibits to Apple’s supplemental
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`interrogatory responses. Apple anticipates that venue discovery will be completed by June 23,
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`2022, unless Aire seeks an extension to depose these previously identified witnesses orf
`a To date, Aire has not requested any deposition ofApple, Mr. Rollins, or any ofthe
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`witnessesidentified in the Rollins Declaration.
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`III. THERE IS GOOD CAUSE TO GRANT LEAVE TO SUPPLEMENT
`Good cause is required to supplement a motion record. See Fed. R. Civ. P. 16(b)(4); Al-
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`Khawaldeh v. Tackett, No. 1:20-cv-01079-RP, 2021 WL 2322930, at *1 (W.D. Tex. June 7,
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`2021) (holding that Rule 16(b)(4) governed request to supplement evidence in opposition to
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`summary judgement motion, and granting leave to supplement) (citing Shepherd ex rel. Estate of
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`Shepherd v. City of Shreveport, 920 F.3d 278, 287 (5th Cir. 2019) (applying good cause standard
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`to motion to supplement briefing)). Good cause is evaluated based on the assessment of four
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`factors: (1) the explanation for the failure to timely offer the evidence; (2) the importance of the
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`evidence; (3) potential prejudice in allowing the evidence into the record; and (4) the availability
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`of a continuance to cure such prejudice. See EEOC v. Service Temps Inc., 679 F.3d 323, 333-34
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`(5th Cir. 2012) (applying factors to proposed pleading amendment). For the reasons set forth
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`below, all four factors support good cause to permit the requested supplementation.
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`A.
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`Apple’s Explanation for the Timing of the Requested Relief Supports Good
`Cause for the Requested Supplementation
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`Apple timely filed its Transfer Motion on April 14, 2022, relying upon the accompanying
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`Rollins Declaration to establish certain facts concerning the relevance, roles, activities, and
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`locations of witnesses and their teams, and the relevance and locations of documents.
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`Approximately one month later, this Court issued its Order in Scramoge that criticized and found
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`lacking the testimony of Mr. Rollins—as set forth in a declaration structured similarly to the
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`Rollins Declaration here—and that provided additional guidance about declaration testimony that
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`would assist the Court in determining motions to transfer venue.
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`After receiving the Scramoge Order, Apple acted promptly to obtain and seek leave to
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`submit declarations from the Apple employees that Mr. Rollins identified in the Rollins
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`Declaration—with each testifying to information similar in scope to that which Mr. Rollins set
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`forth in his declaration. In particular, Apple promptly evaluated the effect and impact of the
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`Scramoge Order on the present Transfer Motion and Rollins Declaration to determine whether
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`supplementation here could aid the Court’s review; scheduled time with each of the witnesses
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`submitting supplemental declarations to prepare, review, and finalize their declarations;
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`contacted opposing counsel to meet and confer on the present motion; and then diligently
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`prepared and filed the present motion. Given the fact that Aire has chosen not to depose Mr.
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`Rollins—whose Declaration has been available to Aire since April 14, 2022—nor any of the
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`witnesses identified in that Declaration, Apple does not anticipate any need by Aire to depose
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`those very same witnesses now that they provide their own consistent declarations. But, as
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`discussed below, should Aire seek to do so, Apple has agreed to make each of the declarants
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`available for deposition and to accommodate an extension to Aire’s deadline to oppose Apple’s
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`Transfer Motion without extending Apple’s reply deadline.
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`B.
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`The Importance of the Evidence Supports Good Cause for the Requested
`Supplementation
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`To prevail on its motion to transfer, Apple bears the burden to establish that the Northern
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`District of California is the clearly more convenient venue. In re Volkswagen of Am., Inc., 545
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`F.3d 304, 312-15 (5th Cir. 2008) (“Volkswagen II”). The convenience of willing witnesses is the
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`most important factor in the transfer analysis. See In re Apple Inc., 818 F. App’x 1001, 1003
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`(Fed. Cir. June 16, 2020). The location of relevant records is also an important factor. Id.
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`Apple provided evidence concerning those factors via the Rollins Declaration; however,
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`now that the Court has found that Mr. “Rollins lacks credibility” (Scramoge Order at 3), the
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`evidence that Apple provided (i.e., the Rollins Declaration) may not be adequate or sufficient.
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`That is, without leave to supplement, Apple risks being left without a means to substantiate the
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`testimony of Mr. Rollins with the evidence that the Court’s Scramoge Order explained will be
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`most helpful to the Court in establishing the location of the likely Apple witnesses and records
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`that Mr. Rollins discussed in his declaration. The importance of the requested supplementation
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`supports a finding of good cause.
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`Aire Will Not Be Prejudiced by the Requested Supplementation
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`C.
`For several independent reasons, Aire will not be prejudiced by the requested
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`supplementation.
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`First, with one exception, each of the declarations is from a witness already identified in
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`the Rollins Declaration and relied on in Apple’s Transfer Motion.1 That these specific witnesses
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`are relevant to the suit and the Transfer Motion is information already known to Aire.
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`Second, the information in the supplemental declarations is consistent with and similar in
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`scope to the information already provided in the Rollins Declaration. In that respect, these
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`declarations do not provide new evidence, but instead supplement the evidence that has already
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`been submitted and made known to Aire, who has been able to craft its venue discovery strategy
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`around that already-provided information. The new information in the supplemental declarations
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`explains only the basis for and limits of the witnesses’ personal knowledge of the matters
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`addressed in their declarations. (Compare Rollins Declaration, with Exs. 1-7 (witness
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`declarations)).
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`Third, because Aire has not yet responded to Apple’s Transfer Motion, Aire has time and
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`opportunity to address these supplemental declarations, should it so choose. To date, Aire has
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`not yet sought to depose any of the Apple witnesses identified in the Rollins Declaration, nor has
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`Aire sought to depose Apple or Mr. Rollins. Since the supplemental declarations are similar in
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`1 The only exception is the identification of a new licensing witness,
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`the same Northern District of California office as the previously identified licensing witness
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`scope to the information provided in the Rollins Declaration, Aire’s strategy not to take venue-
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`related depositions should not be impacted by the inclusion of these supplemental declarations.
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`Nevertheless, Apple will not oppose a reasonable extension of the venue discovery deadline to
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`allow Aire to depose these individuals, if it chooses to do so, and to alleviate any potential
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`prejudice to Aire, Apple has agreed to make each of the declarants available for deposition
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`should Aire request that, and to accommodate an extension to Aire’s deadline to oppose Apple’s
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`Transfer Motion without extending Apple’s reply deadline.
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` In summary, the additional declarations from witnesses Mr. Rollins already identified in
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`his declaration will not unduly prejudice Aire, but instead will best enable the parties to present
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`the relevant facts and evidence to the Court for adjudication, in a manner consistent with this
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`Court’s practices and orders.
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`A Continuance Is Unnecessary Given the Current Procedural Posture
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`D.
`As noted above, Aire’s response to Apple’s motion to transfer is not due until after the
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`completion of venue discovery, which is still in progress, and can be extended at Aire’s request.
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`Specifically, venue discovery closes June 23, and Aire’s response is due July 7. To extinguish
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`any possible prejudice to Aire, Apple would agree to accommodate an extension to Aire’s
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`opposition deadline to July 14 without an extension of Apple’s reply deadline, which is currently
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`July 21, 2022. Therefore, a continuance is not required. Should Aire request a reasonable
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`continuance, however, Apple would not oppose. Moreover, a continuance would not affect the
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`overall trajectory of this case. Under this Court’s Second Amended Standing Order regarding
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`Motions for Inter-District Transfer—which applies to this matter—fact discovery will commence
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`on July 18 regardless of whether a continuance is or is not granted.
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`IV. CONCLUSION
`For the reasons set forth above, Apple respectfully requests leave to submit the
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`supplemental declarations attached as Exhibits 1-7 to this motion in further support of Apple’s
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`pending motion to transfer.
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`Respectfully submitted,
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`/s/ J. Stephen Ravel
`J. Stephen Ravel
`Texas State Bar No. 16584975
`KELLY HART & HALLMAN LLP
`303 Colorado, Suite 2000
`Austin, Texas 78701
`Tel: (512) 495-6429
`Email: steve.ravel@kellyhart.com
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`Attorneys for Defendant Apple Inc.
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`Dated: June 22, 2022
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`James R. Batchelder (pro hac vice)
`Andrew N. Thomases (admitted in W.D. Tex.)
`Andrew T. Radsch (pro hac vice)
`Daniel W. Richards (pro hac vice)
`ROPES & GRAY LLP
`1900 University Avenue, 6th Floor
`East Palo Alto, CA 94303
`Tel: (650) 617-4000
`Fax: (650) 617-4090
`Email: James.batchelder@ropesgray.com
`Email: Andrew.thomases@ropesgray.com
`Email: Andrew.radsch@ropesgray.com
`Email: Daniel.richards@ropesgray.com
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`Cassandra B. Roth (pro hac vice)
`ROPES & GRAY LLP
`1211 Avenue of the Americas
`New York, NY 10036-8704
`Tel: (212) 596-9000
`Fax: (212) 596-9090
`Email: Cassandra.roth@ropesgray.com
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`CERTIFICATE OF CONFERENCE
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`The undersigned certifies counsel have conferred. Plaintiff opposes the relief sought.
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`Accordingly, the Motion is presented to the Court for resolution.
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`/s/ J. Stephen Ravel
`J. Stephen Ravel
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`CERTIFICATE OF SERVICE
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`I hereby certify that all counsel of record are being served with a copy of the foregoing
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`document via electronic mail on June 22, 2022.
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` /s/ J. Stephen Ravel
`J. Stephen Ravel
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