Case 6:21-cv-01101-ADA Document 48 Filed 07/20/22 Page 1 of 7
`
`PUBLIC VERSION
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`AIRE TECHNOLOGY LTD.,
`
`Plaintiff,
`
`v.
`
`APPLE INC.,
`
`Defendant.
`
`Civil Action No. 6:21-cv-1101-ADA
`
`JURY TRIAL DEMANDED
`
`DEFENDANT APPLE INC.’S SEALED REPLY IN SUPPORT OF ITS
`MOTION FOR LEAVE TO SUPPLEMENT THE RECORD
`ON APPLE’S MOTION TO TRANSFER
`
`

`

`Case 6:21-cv-01101-ADA Document 48 Filed 07/20/22 Page 2 of 7
`
`
`
`Plaintiff Aire Technology Ltd.’s (“Aire”) opposition to Apple Inc.’s (“Apple”) Motion to
`
`Supplement the Record (Dkt. 40, “Motion”) misapplies the law and, perhaps most importantly,
`
`fails to identify any prejudice to Aire that would result from Apple’s requested supplementation.
`
`That is because no such prejudice exists. Apple demonstrated the requisite good cause for
`
`supplementation in its opening brief, and Aire has not rebutted that showing.
`
`I.
`
`AS APPLE’S MOTION ESTABLISHED, THE GOOD CAUSE STANDARD
`GOVERNS THE MOTION
`
`Contrary to Aire’s assertion, good cause governs motions to supplement under Fifth
`
`Circuit law. Al-Khawaldeh v. Tackett, No. 20-cv-01079, 2021 WL 2322930, at *1 (W.D. Tex.
`
`June 7, 2021) (citing Shepherd ex rel. Estate of Shepherd v. City of Shreveport, 920 F.3d 278,
`
`287 (5th Cir. 2019)) (holding that Rule 16(b)(4) governs request to supplement evidence in
`
`opposition to summary judgment motion, and granting leave to supplement). Aire’s reliance on
`
`Aghili v. Ashcroft is misplaced—that case concerned a Board of Immigration Appeal regulation
`
`for supplementing a motion to reopen deportation proceedings, a regulation with no relevance
`
`here. 32 F. App’x 130 (5th Cir. 2002) (unpublished). Aire’s other cited case is consistent with
`
`applying a good cause standard here, as it explains that “[t]here may be occasions . . . when
`
`additional supporting materials should be presented to the court,” and in those instances “[i]f no
`
`injustice is likely to result,” the parties should agree to a modified briefing schedule to allow the
`
`parties to address the additional materials and to “avoid . . . litigating a collateral determination.”
`
`Springs Indus. Inc. v. Am. Motorists Ins., 137 F.R.D. 238, 240 (N.D. Tex. 1991) (internal
`
`quotations omitted); Opp’n 3 (citing Springs Indus.). Here, no injustice would occur from
`
`Apple’s requested supplementation, nor has Aire shown otherwise.
`
`Apple expressly brought its Motion under Rule 16, yet Aire erroneously contends that
`
`Rule 16 and its good cause standard do not apply to the Motion because Apple did not request
`
`
`
`1
`
`

`

`Case 6:21-cv-01101-ADA Document 48 Filed 07/20/22 Page 3 of 7
`
`amendment of any deadlines. Opp’n 6. But this Court’s standing orders imposed a deadline for
`
`Apple to file its motions to transfer, which deadline had passed prior to Apple’s request to
`
`supplement the record. See Second Am. Standing Order Regarding Motions for Inter-District
`
`Transfer entered on Aug. 18, 2021 (governing cases filed on or before March 7, 2022); see also
`
`Standing Order Governing Proceedings (OGP) 4.1 – Patent Cases entered on Apr. 14, 2022.1
`
`II.
`
`AIRE’S OPPOSITION FAILS TO REBUT THE GOOD CAUSE THAT APPLE
`ESTABLISHED IN ITS OPENING BRIEF
`
`Aire fails to address the good cause that Apple identified: until shortly before Apple
`
`brought the present Motion, Apple did not yet have the benefit of the Court’s Order in Scramoge,
`
`and thus did not yet know of the Court’s specific criticisms of Mr. Rollins. See Mot. 3-4. While
`
`Aire contends that Apple should have known that Mr. Rollins’s testimony was unacceptable to
`
`this Court, even the cases Aire cites shows courts relying on Mr. Rollins’s testimony. For
`
`example, in In re Apple Inc., the Federal Circuit concluded that the district court erroneously
`
`found that the access to sources of proof factor in a transfer motion was neutral, citing
`
`“Apple’s . . . sworn declaration”—a declaration submitted by Mark Rollins. In re Apple Inc.,
`
`No. 2022-128, 2022 WL 1196768, at *4 (Fed. Cir. Apr. 22, 2022) (granting mandamus relief in
`
`action pending at CPC Patent Technologies Pty. Ltd. v. Apple Inc., No. 21-cv-00165-ADA, Dkt.
`
`No. 82 (W.D. Tex. Feb. 8, 2022)); see also CPC Pat., No. 21-cv-00165-ADA, Dkt. No. 22-2
`
`
`1 Aire’s remaining cited cases (see Opp’n 3-4) do not address the applicable standard. See In re
`Apple Inc., 743 F.3d 1377, 1379 (Fed. Cir. 2014) (not addressing what standard governs motions
`to supplement; analyzing instead order on motion to supplement filed after the court denied
`transfer motion); Astute Tech., LLC v. Learners Digest Int’l LLC, No. 12-cv-689, 2014 WL
`12596468, at *8-10 (E.D. Tex. Apr. 28, 2014) (neither ruling on nor considering a motion to
`supplement record for a motion to transfer); In re Google Play Store Antitrust Litig., 556 F. Supp.
`3d 1106, 1109 (N.D. Cal. 2021) (denying a second request to seal documents—not ruling on a
`motion to supplement the record); Scramoge Tech. Ltd. v. Google LLC, No. 21-cv-00616-ADA,
`Dkt. No. 72, at 16-17 (W.D. Tex. May 20, 2022) (not ruling on a motion to supplement the record).
`
`2
`
`

`

`Case 6:21-cv-01101-ADA Document 48 Filed 07/20/22 Page 4 of 7
`
`(May 4, 2021) (Rollins Declaration In Support of Apple’s Motion to Transfer); see also In re
`
`Apple Inc., No. 2022-108, 2022 WL 1196768, at * 2 (Fed. Cir. Nov. 15, 2021). As another
`
`example, in GUI Global Products, Ltd. v. Samsung Electronics Co., the Court relied on Mr.
`
`Rollins’s testimony for the location and identity of certain witnesses. No. 20-cv-2624, 2021 WL
`
`3705005, at *4-5 (S.D. Tex. May 28, 2021) (relying on Rollins’s testimony for the identity of
`
`certain witnesses, those witnesses’ roles in relation to the accused products, and those witnesses’
`
`locations). Mr. Rollins’s testimony was relied upon in other decisions, too, and thus Apple had
`
`no reason to know of the Court’s specific criticisms of Mr. Rollins before the Scramoge order.
`
`See, e.g., Cub Club Inv., LLC v. Apple, Inc., No. 20-cv-856-ADA, Dkt. No. 28 (W.D. Tex. Sept.
`
`7, 2021) (granting motion to transfer to N.D. Cal. and relying on facts provided by Mr. Rollins).
`
`As such, this Court’s May 20, 2022 adverse credibility finding against Mr. Rollins, coming two
`
`months after Apple’s transfer motion was filed here, presents sufficient explanation for Apple’s
`
`motion to supplement with additional declarations.
`
`Aire’s remaining arguments fail to address Apple’s fundamental good cause explanation.
`
`For example, Aire erroneously contends that the supplemental declarations are “duplicative” or
`
`“not important.” Opp’n 5. While the declarations establish facts consistent with the information
`
`provided in Mr. Rollins’s declaration, the supplemental declarations are not duplicative in one
`
`critical respect: they are from witnesses that provide firsthand knowledge of many of the
`
`established facts. Further, the declarations are important: they present facts central to the
`
`transfer analysis. If the declarations were not important, as Aire contends, it is unlikely that Aire
`
`would have any reason to oppose their submission now. Nor are the declarants “new”—each
`
`was identified in Mr. Rollins’s declaration, with the exception of
`
`. Dkt. 24-2, at 3-7.
`
`Further, Aire’s criticisms of Apple’s substitution of
`
` for
`
` are
`
`3
`
`

`

`Case 6:21-cv-01101-ADA Document 48 Filed 07/20/22 Page 5 of 7
`
`inappropriate—
`
` no longer works at Apple, and Aire’s supposition that Apple must
`
`have known before filing its transfer motion that
`
` is
`
`unsupported attorney argument (and also is incorrect). Apple would have had no reason to
`
`identify as a witness an employee that it knew would be out on leave.
`
`Apple also did not delay in providing Aire with the declarations nor in filing its motion to
`
`supplement. This Court found Mr. Rollins’s testimony to be not credible on May 25 and Apple
`
`filed its motion to supplement less than a month later, on June 22, 2022. Apple diligently
`
`prepared the declarations to provide an alternative form of evidence for the evidence it already
`
`submitted to support its motion to transfer.
`
`Finally, Apple is not “guess[ing]” as to the Court’s fact-finding process. Opp’n 8. The
`
`Court made an adverse credibility finding against Mr. Rollins in Scramoge that was not limited
`
`to that case. Scramoge Tech. Ltd. v. Apple Inc., No. 21-cv-00579-ADA, Dkt. No. 82 (W.D. Tex.
`
`May 25, 2022). Apple is simply responding to the Court’s findings there. And if the Court
`
`nevertheless finds Mr. Rollins’s declaration credible here, then of course the Court may find
`
`good cause lacking for the present Motion as there would be no need to supplement the record on
`
`Apple’s transfer motion.
`
`III. AIRE’S OPPOSITION FAILS TO IDENTIFY ANY ACTUAL PREJUDICE
`FROM APPLE’S REQUEST TO SUPPLEMENT
`
`While Aire contends it will be prejudiced by the supplementation, it does not identify
`
`how it would be prejudiced. See Opp’n 8-9. Conclusory and unsubstantiated allegations of
`
`prejudice are entitled to little if any weight. See NFC Tech., LLC v. HTC Am., Inc., No. 13-cv-
`
`1058, Dkt. No. 152, at 5-6 (E.D. Tex. Mar. 11, 2015); Facebook, Inc. v. Blackberry Ltd., No. 18-
`
`cv-05434, Dkt. No. 105, at 17-18 (N.D. Cal. Feb. 13, 2020). Tellingly, Aire does not identify
`
`any additional discovery, including by deposition, that it would have taken, or investigation that
`
`4
`
`

`

`Case 6:21-cv-01101-ADA Document 48 Filed 07/20/22 Page 6 of 7
`
`it would have undertaken, had the supplemental declarations been provided earlier. Again, all of
`
`the declarants but one were identified in Mr. Rollins’s declaration accompanying Apple’s
`
`transfer motion, and Aire chose not to depose any of them, or Mr. Rollins, evidently determining
`
`that such discovery was unnecessary. Aire doesn’t contend otherwise. Aire’s contention that it
`
`would not have the opportunity in its responsive transfer brief to address Apple’s “new”
`
`evidence contradicts Aire’s earlier acknowledgement that the declarations do not provide new
`
`evidence. See Opp’n 8˗9. There is no dispute that the facts in the supplemental declarations
`
`were known to Aire since Apple filed its transfer motion, and thus Aire had ample opportunity to
`
`(and did) address them in its transfer opposition.
`
`Finally, Apple proposed to Aire extending the deadline for Aire’s opposition to the
`
`transfer motion for venue discovery, so that Aire could take any needed additional discovery in
`
`light of the supplemental declarations. Id. Aire declined both—showing that no additional
`
`discovery was needed, and that Aire has not suffered and would not suffer any prejudice here.
`
`IV. AIRE’S OPPOSITION FAILS TO IDENTIFY A CREDIBLE OBSTACLE TO A
`CONTINUANCE
`
`Had Aire identified any actual prejudice, a short continuance would resolve it. Aire
`
`identifies no further venue discovery it would need to pursue in view of the proposed
`
`declarations. Moreover, Aire does not meaningfully contend that the facts in the declarations are
`
`new, and as such a continuance is unnecessary. In addition, Aire fails to address that fact
`
`discovery opens July 19, regardless of any of the currently pending motions, and as such a
`
`continuance for briefing the transfer motion remains available without disrupting the overall case
`
`schedule. Apple was prepared and remains prepared to offer the witnesses quickly to minimize
`
`any continuance. Further, Aire already agreed to an extended briefing schedule for claim
`
`construction and this Court has not yet set a Markman hearing date.
`
`
`
`5
`
`

`

`Case 6:21-cv-01101-ADA Document 48 Filed 07/20/22 Page 7 of 7
`
`
`
`Respectfully submitted,
`
`/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
`
`Attorneys for Defendant Apple Inc.
`
`Dated: July 13, 2022
`
`
`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
`
`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
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that all counsel of record are being served with a copy of the foregoing
`
`
`
`document via electronic mail on July 13, 2022.
`
`
`
` /s/ J. Stephen Ravel
`J. Stephen Ravel
`
`
`
`
`
`
`
`
`
`6
`
`