Case 6:23-cv-00158-ADA Document 75 Filed 05/03/24 Page 1 of 8
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`JAWBONE INNOVATIONS, LLC,
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`Plaintiff,
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`v.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Case No. 6:23-cv-00158-ADA
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`JURY TRIAL DEMANDED
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`META PLATFORMS, INC.,
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`Defendant.
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`PLAINTIFF JAWBONE INNOVATIONS, LLC’S SUR-REPLY
`IN FURTHER OPPOSITION TO META PLATFORMS, INC.’S OPPOSED
`MOTION TO TRANSFER VENUE TO THE
`NORTHERN DISTRICT OF CALIFORNIA (DKT. 28)
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`Case 6:23-cv-00158-ADA Document 75 Filed 05/03/24 Page 2 of 8
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`On Reply, Meta raises essentially the same arguments which this Court has already rejected
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`in Immersion Corp. v. Meta Platforms Inc. Ex. G. While Meta nonspecifically disputes Jawbone’s
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`conclusions, it fails to address the specific evidence supporting Jawbone’s positions. Meta has not
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`shown that NDCA is clearly more convenient. The Motion should be denied.
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`I.
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`The Declaration of Evans Is Unreliable
`Meta does not engage with Jawbone’s criticism of Mr. Evans’ declaration. It does not
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`confront Mr. Evans’ testimony that
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`. Nor does it address that Mr. Evans’ “investigation” of technical
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`employees was limited to
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`Meta takes issue with the assertion that Mr. Evans did not investigate Texas-based financial
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`employees, citing a mention of
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` in his declaration. However, Mr. Evans testified that
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`25, 83:16-2.
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` Ex. F at 68:8-
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`. Ex. Q. Meta’s
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`critique only underscores the lack of any real investigation into Texas-based employees, including
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`those the Court found relevant to the same products in Immersion.
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`II.
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`Relative Ease of Access to Sources of Proof Weighs Against Transfer
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`On Reply, Meta does not rebut Jawbone’s evidence weighing against transfer to NDCA.
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`At the outset, it does not identify the actual location of relevant sources of proof or undermine
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`Jawbone’s evidence that they are located in Texas. While it again cites statements in the Evans’
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`declaration, it ignores Mr. Evans’ testimony that
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`. Meta also ignores that its
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`Case 6:23-cv-00158-ADA Document 75 Filed 05/03/24 Page 3 of 8
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`mere preference, not entitled to weight. Meta also fails to rebut that, as described, this policy is
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`limited to
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`. Finally, Meta does not address that
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`patent prosecution documents it wrongly identified as in NDCA are in WDTX.
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`Meta instead misinterprets In re TikTok, Inc. for the conclusion that
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` is controlling. It is not. The issue in TikTok concerned the “relative
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`ease of access” versus “absolute ease of access” of sources of proof. 85 F.4th 352, 358 (5th Cir.
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`2023). It did not overturn established precedent on the location of sources of proof, which is still
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`relevant. Id. TikTok does not allow Meta’s
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` to supersede evidence that its
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`documents and code are accessible
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`, including WDTX.
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`Meta disregards Jawbone’s evidence regarding Qualcomm and
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` sources in WDTX,
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`and completely ignores EssilorLuxottica. Opp at 3-4. Meta instead improperly narrows this inquiry
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`to “unique” documents. Meta’s new argument that some documents may be more easily accessible
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`in their NDCA offices is unsupported speculation, and its hair-splitting regarding accused features
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`ignores its admissions that
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` and Qualcomm supply at least relevant
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`. Id.
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`Finally, Meta wrongly argues that Jawbone’s sources of proof are not in WDTX. Meta did
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`not take venue discovery from Jawbone and does not address the documents Jawbone identified
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`in its Waco office. Meta instead argues, for the first time, that Jawbone is ephemeral, despite its
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`distribution of products in WDTX, relying on In re Google which was decided on a very different
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`factual record than the one now before this Court.
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`III. Cost of Attendance for Willing Witnesses Weighs Against Transfer
`Meta relies on new declarations and supplemental interrogatory responses which it served
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`on the same day as its Reply brief, which should be discounted as they have not been subject to
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`cross-examination during venue discovery. Even then, it fails to specifically address most of the
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`Case 6:23-cv-00158-ADA Document 75 Filed 05/03/24 Page 4 of 8
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`25 witnesses Jawbone identified. Meta’s arguments boil down to a repetition of Immersion and
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`should be rejected for the same reasons. Meta ignores the
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`, publications, and
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`LinkedIn profiles, linking at least 22 Meta employees to accused audio capture functionalities.
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`Meta also ignores its Texas-based business, marketing, legal, and financial witnesses. Finally,
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`Meta does not specifically dispute WDTX is more convenient for Mr. Setton and Dr. Burnett.
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`Just as in Immersion, Meta conclusorily disagrees with Jawbone’s identification without
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`disputing specific evidence regarding identified witnesses. Meta instead generally disputes
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`witnesses’ “unique” knowledge, introduces contradictory declarations pointing the finger at other
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`managers or employees, and mischaracterizes Jawbone’s argument as suggesting employees with
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`“any level of involvement with the Accused Products” are relevant, again repeating arguments
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`rejected in Immersion. Reply at 7. But the cited evidence shows that the identified witnesses work
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`on accused audio capture technology. Meta’s protests rely on narrow declarations, most of which
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`are not even signed by the identified employees themselves, that generally dispute employees’
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`involvement in writing production code or point the finger at an NDCA-based co-worker (mostly
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`unidentified in Meta’s motion) while suggesting that the identified witness lacks “unique”
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`knowledge. Even then, they only address 11 of 22 employees. Reply, Ex. A. These declarations
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`should be given little, if any, weight. In any case, Meta’s interpretation of relevance is unduly
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`narrow, excluding relevant
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`. Product design is an iterative process, and employees do
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`not need to have written the last source code version (or any code) to be relevant. Indeed,
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`employees involved in earlier research and design stages may have more fundamental knowledge,
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`particularly as Meta’s own documents describe
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`Case 6:23-cv-00158-ADA Document 75 Filed 05/03/24 Page 5 of 8
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` In any case, these witnesses
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`work on substantively the same functionalities described in the Evans Declaration for every
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`technical witness other than
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`. If Meta maintains they are irrelevant, Meta identifies
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`only one relevant technical witness under its own standard.
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`Meta’s argument that the Texas-based financial, marketing, and business witnesses
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`Jawbone identified cannot be relevant unless they work directly on the accused functionality is
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`also nonsensical. Those witnesses’ knowledge of the Accused Products, customer sentiment,
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`financials, business decisions, does not require them to have performed technical work specific to
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`the accused features. Indeed, none of the financial witnesses that Meta identified in NDCA have
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`worked directly on the accused features either. Meta’s double standard is revealing.
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`Finally, Meta does not engage with this Court’s findings regarding the relevance of specific
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`witnesses to the accused products in Immersion. Meta instead mischaracterizes Jawbone’s
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`arguments and mischaracterizes these witnesses’ relevance as solely limited to haptics, citing one
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`cherry-picked statement from the Immersion order in regard to
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`’ knowledge of haptics.
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`Reply at 2. Meta ignores that Jawbone identified
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` and did not include him in the list of 12 employees who are relevant for the
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`same reasons as the Court found in Immersion. Opp. at 6-7.
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`IV. Availability of Compulsory Service Weighs Against Transfer
`Meta does not substantively dispute the locations of the 24 Texas-based witnesses Jawbone
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`identifies, or that those individuals are subject to compulsory process in this Court. Nor does Meta
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`take on the specific statements in those individuals’ LinkedIn profiles, and in some cases internal
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`Meta profiles, supporting their relevance. Finally, Meta does not substantively dispute the
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`relevance of Scott Kokka, who it previously wrongly identified as located in NDCA.
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`Meta instead mischaracterizes Jawbone’s identification of relevant third-party employees
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`Case 6:23-cv-00158-ADA Document 75 Filed 05/03/24 Page 6 of 8
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`in this District as “random,” and simply discards the statements in their LinkedIn profiles. But this
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`Court found that statements in Meta employees’ own “worksite profiles” to be of probative value
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`in Immersion, and their public descriptions of their own professional responsibilities are of
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`probative value for the same reasons. Immersion at 9. Their LinkedIn profiles show that they work
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`on relevant components and, in some cases, directly interface with Meta for business plans and
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`marketing of Accused Products, particularly in the case of Essilor employees.
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`Meta also raises essentially the same arguments regarding former employees as it does with
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`respect to willing witnesses and fails for the same reasons. Their internal Meta and public LinkedIn
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`profiles show they have knowledge of relevant audio capture functionality, and in Immersion the
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`Court found at least John Carmack,
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` were relevant for reasons other
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`than haptics.
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`V.
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`Judicial Economy and the Public Interest Factors Weigh Against Transfer
`Meta’s remaining arguments rehash these issues without substantively challenging
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`Jawbone’s evidence. Meta does not dispute that the Court has experience construing the asserted
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`claims and does not explain how its complaints as to definiteness or the number of asserted claims
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`impact judicial economy. Meta likewise fails to rebut that this Court has faster time to trial
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`statistics. While Meta makes a new argument that Jawbone is ephemeral, it relies on the Google
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`decision based on a different factual record two years ago. Meta did not take venue discovery and
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`simply ignores Jawbone’s presence and product distribution in WDTX.
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`Finally, Meta does not address that it has not raised any defense under
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`Case 6:23-cv-00158-ADA Document 75 Filed 05/03/24 Page 7 of 8
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`Dated: April 26, 2024
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`Respectfully submitted,
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` /s/ Peter Lambrianakos
`Raymond W. Mort, III
`Texas State 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
`Jacob Ostling (Admitted Pro Hac Vice)
`NY Bar No. 5684824
`Email: jostling@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 6:23-cv-00158-ADA Document 75 Filed 05/03/24 Page 8 of 8
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`CERTIFICATE OF SERVICE
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`I hereby certify that all counsel of record who are deemed to have consented to electronic
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`service are being served on April 26, 2024 with a copy of this document via the Court’s CM/ECF
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`system per Local Rule CV-5(a)(3). Any other counsel of record will be served by electronic mail
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`on this same date.
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`/s/ Peter Lambrianakos
` Peter Lambrianakos
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