Case 6:21-cv-00926-ADA Document 396 Filed 09/16/21 Page 1 of 3
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`FINTIV, INC.,
` Plaintiff
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`-vs-
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`APPLE INC.,
` Defendant
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`ORDER
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`6:21-CV-00926-ADA
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`A week after this Court re-transferred this case from the Austin Division back to the Waco
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`Division (Dkt. 386), Defendant Apple petitioned the Federal Circuit for a writ of mandamus to
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`vacate this Court’s re-transfer order and moved this Court to continue the trial for four months or
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`stay it pending resolution of its mandamus petition. Dkt. 394.
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`Apple requests this Court to continue or stay the current jury trial setting on two bases: (1)
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`two of its witnesses, Mohammad Khan and Henry Dreifus, are not available to testify at trial,
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`which is currently set for October 4, 2021; and (2) the current surge of COVID cases. Dkt. 394.
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`Apple states that Mr. Khan “agreed to attend trial in Austin if it were held in February or March
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`2022” but “he does not want to travel to Waco.” Id. at 1-2. First, the unavailability of one of
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`Apple’s witnesses does not justify the continuance or stay of the trial, which could potentially
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`disrupt the availabilities of all other witnesses on both sides to testify at trial. Second, even if the
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`trial is continued pending the Federal Circuit’s resolution of Apple’s mandamus petition, that does
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`not make Mr. Khan available to testify at trial at that point — according to the current statistics,
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`Apple’s mandamus petition will be resolved long before Mr. Khan’s alleged availability time
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`frame of February or March 2022. Finally, Apple does not explain why Mr. Khan cannot testify
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`Case 6:21-cv-00926-ADA Document 396 Filed 09/16/21 Page 2 of 3
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`remotely. The Waco courtroom is equipped with modern technologies that allow a witness to
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`testify remotely in an effective manner. In fact, in the past patent jury trials before this Court during
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`the COVID pandemic, a number of witnesses testified remotely at trial and their remote
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`testimonies were equally, if not more, effective as in person testimonies. Although this Court
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`recognizes the value of live trial testimonies in certain circumstances, Apple’s does not explain
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`why it is crucial to have Mr. Khan, a prior art fact witness, testify live at trial. See Dkt. 394 at 3.
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`As for Mr. Dreifus, Apple states that he is not available to testify in this trial starting on
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`October 4, 2021 because he is scheduled to testify in another trial starting on the same day before
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`Judge Gilstrap in the Eastern District of Texas. As Apple admitted, the current trial date for this
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`case was set at least six months ago and the trial before Judge Gilstrap was set almost a year ago.
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`Dkt. 394 at 1. Apple could have informed either this Court or Judge Gilstrap long ago to avoid
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`such a conflict, instead of waiting until now — just over two weeks before trial. Thus, the alleged
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`unavailability of Mr. Dreifus is largely Apple’s own making.
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`Finally, Apple contends that a continuance or stay is necessary in view of the current surge
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`of COVID cases and cites to the Court’s statements back in March 2020 and Standing Order dated
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`on April 9, 2020. Id. at 2. Apple’s argument based on outdated facts is unavailing. In March 2020,
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`the COVID pandemic just began, and the world still did not have a good understanding of the
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`impact of COVID. Therefore, the Court acted cautiously at that time for the benefit of public
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`health. However, now that we have a much better understanding of COVID, this Court has safely
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`conducted six patent jury trials and several other non-patent civil trials and criminal trials during
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`the COVID pandemic between October 2020 and June 2021, with no reported COVID exposure
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`of those involved in any of the trials. Indeed, it is even safer to conduct jury trials now compared
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`to early 2021 given that COVID vaccines, which have been proved to be highly effective, are
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`Case 6:21-cv-00926-ADA Document 396 Filed 09/16/21 Page 3 of 3
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`readily available in the United States. As Apple noted in its motion, the Eastern District of Texas
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`is, and has been, conducting jury trials during the COVID pandemic in a safe manner. Lastly, even
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`if the trial is continued to February or March 2022, there is no guarantee that COVID pandemic
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`will subside by then. Therefore, the alleged surge of COVID cases does not justify a continuance
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`or stay either.
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`For the above reasons, the Court is not persuaded that either of Apple’s bases justify a
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`continuance or stay of the trial in this case. Nevertheless, to afford the Federal Circuit more time
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`to resolve Apple’s mandamus petition, the Court will continue this trial for one week, with a new
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`trial date of October 12, 2021. Further, re-setting this trial to October 12, 2021 allows Mr. Dreifus
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`to testify in this case after he testifies in the Eastern District case.
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`Accordingly, it is ORDERED that jury selection and trial for this case is reset to start on
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`October 12, 2021 at 9:00AM in the Waco courthouse.
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`SIGNED this 16th day of September, 2021.
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`ALAN D ALBRIGHT
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