Case: 22-164 Document: 15 Page: 1 Filed: 10/04/2022
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`Orrick, Herrington & Sutcliffe LLP
`Columbia Center
`1152 15th Street, N.W.
`Washington, DC 20005-1706
`+1 202 339 8400
`orrick.com
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`Melanie L. Bostwick
`E mbostwick@orrick.com
`D +1 202 339 8483
`F +1 202 339 8500
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`October 4, 2022
`
`Via CM/ECF
`Peter R. Marksteiner
`Circuit Executive & Clerk of the Court
`United States Court of Appeals for the Federal Circuit
`717 Madison Place, N.W.
`Washington, DC 20439
`
`
`In re Apple Inc., No. 22-164
`Re:
`Dear Colonel Marksteiner:
`Pursuant to Rule 28(j), I write to apprise you of a relevant opinion that the
`district court recently issued. The district court previously denied Apple’s request
`to stay proceedings pending this Court’s mandamus review. Dkt. 17 (Stay Reply) at
`1. The district court has now issued a “supplemental opinion” (attached hereto)
`regarding that denial. Scramoge v. Apple Inc., No. 6:21-CV-01071-ADA, Dkt. 66
`(W.D. Tex. Sept. 30, 2022) (Opinion).
`This Opinion confirms (at 2) that the district court “has decided not to rule on
`[Apple’s] transfer motion[]” at this point. The Opinion then states (at 3) that this
`Court’s precedent allows such a deferral, regardless of how long it lasts, so long as
`transfer is resolved before “substantive motions and hearings.” As Apple has
`explained, this is incorrect. Precedent requires that transfer motions receive “top
`priority,” Pet. 17-19, and this Court has “identified the completion of fact discovery
`and supervision of discovery disputes … as tasks that should take place after
`transfer is resolved,” Pet. Reply 4. The Opinion, however, leaves in place the
`district court’s scheduling order, which violates both requirements by deferring
`transfer until after the completion of fact discovery, Pet. 19-22.
`The Opinion also states (at 4): “Even if the Federal Circuit vacates the
`amended scheduling orders, this Court intends to order supplemental, expanded
`venue discovery and supplemental briefing to achieve its goal of having the parties
`present reliable evidence before this Court rules on the transfer motion.” That is
`merely a restatement of the improper delay the district court’s scheduling order
`already accomplishes. Pet. 14-16. And it is just as much a clear abuse of discretion
`under this alternative name. Furthermore, the Opinion identifies no reason why
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`Case: 22-164 Document: 15 Page: 2 Filed: 10/04/2022
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`October 4, 2022
`Page 2
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`the existing venue record fails to provide “reliable evidence” from which the court
`can decide the motion. As Apple has repeatedly demonstrated, the court has
`identified nothing inaccurate or unreliable about Apple’s venue evidence. Compare,
`Pet. 8-10; Pet. Reply 8-12.
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`
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`cc: Counsel of record (via CM/ECF)
`
`Respectfully,
`
`/s/ Melanie L. Bostwick
`Melanie L. Bostwick
`Counsel for Petitioner Apple Inc.
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`

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`Case 6:21-cv-01071-ADA Document 66 Filed 09/30/22 Page 1 of 4
`Case: 22-164 Document: 15 Page: 3 Filed: 10/04/2022
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`SCRAMOGE TECHNOLOGY LTD.,
` Plaintiff,
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`v.
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`APPLE INC.
` Defendant.
`
`AIRE TECHNOLOGY LIMITED,
` Plaintiff,
`
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`v.
`
`APPLE INC.
` Defendant.
`
`XR COMMUNICATIONS LLC,
` Plaintiff,
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`
`v.
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`APPLE INC.
` Defendant.
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`CIVIL NO. 6:21-CV-1071-ADA
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`CIVIL NO. 6:21-CV-01101-ADA
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`CIVIL NO. 6:21-CV-00620-ADA
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`SUPPLEMENTAL CONSOLIDATED OPINION DENYING MOTION TO STAY
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`The Court issues this supplemental consolidated opinion explaining its reasoning for
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`having DENIED three similarly situated motions to stay pending mandamus review. Scramoge
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`Tech. Ltd. v. Apple Inc., No. 6:21-cv-1071-ADA (W.D. Tex. Sept. 8, 2022) ECF No. 58
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`(hereinafter “Scramoge Case”); Aire Tech. Ltd. v. Apple Inc., No. 6:21-cv-01101-ADA (W.D. Tex.
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`Sept. 9, 2022) ECF No. 55 (hereinafter “Aire Case”); XR Communications LLC v. Apple, Inc., No.
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`6:21-cv-00620 (W.D. Tex. Sept. 7, 2022) ECF No. 70 (hereinafter “XR Case”).
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`

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`Case 6:21-cv-01071-ADA Document 66 Filed 09/30/22 Page 2 of 4
`Case: 22-164 Document: 15 Page: 4 Filed: 10/04/2022
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`Background
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`In each of these three cases, Apple moved for transfer relying on the same 30(b)(6) venue
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`declarant, Mr. Mark Rollins, that Apple repeatedly used in so many cases that the Court no longer
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`believes that he does any substantive investigation when preparing his declarations or when
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`preparing for his depositions. Scramoge Tech. Ltd. v. Apple Inc., No. 6:21-CV-00579-ADA, 2022
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`WL 1667561, at *2 (W.D. Tex. May 25, 2022) (explaining history of problems with Mark Rollins).
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`Thus, in these three cases, the Court has modified the schedule to open discovery before having
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`the parties re-brief the transfer motion. Fact discovery will allow the parties to find the relevant
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`evidence and witnesses that bear on the transfer factors rather than speculate about them. The
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`Court has decided not to rule on the transfer motions supported by such an unreliable venue
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`declarant. In these three cases, Apple petitioned for a writ of mandamus and petitioned to stay
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`these cases pending mandamus review.
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`Applicable Law
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`District courts possess an inherent power to manage their own docket, including the power
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`to stay proceedings. Clinton v. Jones, 520 U.S. 681, 706 (1997). District courts traditionally look
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`to four factors in determining whether a stay is appropriate when an order is subject to appellate
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`review: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on
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`the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether the
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`issuance of the stay will substantially injure the other parties interested in the proceeding; and (4)
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`where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009).
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`The Court’s Opinion
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`All of these factors weigh against a stay.
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`

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`Case 6:21-cv-01071-ADA Document 66 Filed 09/30/22 Page 3 of 4
`Case: 22-164 Document: 15 Page: 5 Filed: 10/04/2022
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`Apple is Unlikely to Succeed on the Merits
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`Apple’s mandamus petitions are unlikely to succeed because they challenge this Court’s
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`inherent power to set a schedule and to order the equivalent of supplemental discovery and
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`briefing. This Court acted within the Federal Circuit’s mandate from In re SK hynix Inc., 835 F.
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`App’x 600, 601 (Fed. Cir. Feb. 1, 2021). The Federal Circuit order states, “The petition is granted
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`to the extent that the district court must stay all proceedings concerning the substantive issues in
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`the case until such time that it has issued a ruling on the transfer motion capable of providing
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`meaningful appellate review of the reasons for its decision.” Id. The revised schedule set by this
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`Court defers all substantive motions and hearings in this case until after ruling on the transfer
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`motion.
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`Apple Will Suffer No Irreparable Injury Absent a Stay.
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`Without a stay, Apple will incur only the ordinary cost of discovery and proceed in the
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`ordinary course of litigation. There is no irreparable injury—such fact discovery immediately
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`opens when a case is filed in most courts, and costs may be eventually recovered if the litigation
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`is frivolous. The exact outcome—proceeding to fact discovery—will occur regardless of whether
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`this Court transfers any cases. Fact discovery will begin in this or in another venue. Indeed, Apple
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`acknowledged this when seeking leave to supplement its transfer motion in the XR Case. XR Case,
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`ECF No. 60. During the pendency of mandamus review, this case is unlikely to reach the stage
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`where the Court decides anything dispositive.
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`Issuing the Stay Will Substantially Injure the Other Parties Interested in the Three Cases
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`A stay will harm the plaintiffs in these three cases by delaying their cases and denying
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`supplemental discovery that might contradict the unreliable statements of Mr. Mark Rollins. Such
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`actions amount to procedural gamesmanship. Indeed, the Court revised its OGP because so many
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`Case 6:21-cv-01071-ADA Document 66 Filed 09/30/22 Page 4 of 4
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`defendants delayed filing a transfer motion to delay Markman hearings and the subsequent fact
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`discovery. Scramoge Case, ECF No. 64 at 2–3. The Court views this stay as an effort to hide or
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`delay discovery.
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`Public Policy Weighs Against a Stay
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`
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`Neither party benefits from delaying the ordinary course of these cases. Here, the Court
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`has amended the schedule to ordered what effectively amounts to supplemental discovery and
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`briefing. Even if the Federal Circuit vacates the amended scheduling orders, this Court intends to
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`order supplemental, expanded venue discovery and supplemental briefing to achieve its goal of
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`having the parties present reliable evidence before this Court rules on the transfer motion. But
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`calling it “supplemental venue discovery” wastes the resources of both parties because it overlaps
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`with fact discovery and invites needless disputes about what is “venue” discovery and what is “fact
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`discovery.” The public has no interest in such inefficient use of anyone’s resources.
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`For the above reasons, this Court DENIED the motions to stay these cases.
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`Conclusion
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`SIGNED this 30th day of September, 2022.
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