Rockstar Consortium US LP et al v. Google Inc

Filing 33

RESPONSE to Motion re 18 MOTION to Change Venue filed by NetStar Technologies LLC, Rockstar Consortium US LP. (Attachments: # 1 Declaration of Donald Powers, # 2 Declaration of Mark Hearn, # 3 Declaration of Kristin Malone, # 4 Exhibit 1 to Decl. of K. Malone, # 5 Exhibit 2 to Decl. of K. Malone, # 6 Exhibit 3 to Decl. of K. Malone, # 7 Exhibit 4 to Decl. of K. Malone, # 8 Exhibit 5 to Decl. of K. Malone, # 9 Exhibit 6 to Decl. of K. Malone, # 10 Exhibit 7 to Decl. of K. Malone, # 11 Exhibit 8 to Decl. of K. Malone, # 12 Exhibit 9 to Decl. of K. Malone, # 13 Exhibit 10 to Decl. of K. Malone, # 14 Exhibit 11 to Decl. of K. Malone, # 15 Exhibit 12 to Decl. of K. Malone, # 16 Exhibit 13 to Decl. of K. Malone, # 17 Exhibit 14 to Decl. of K. Malone, # 18 Exhibit 15 to Decl. of K. Malone, # 19 Text of Proposed Order)(Nelson, Justin)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

ROCKSTAR CONSORTIUM US LP
AND NETSTAR TECHNOLOGIES
LLC,
Civil Action No. 2:13-cv-893

Plaintiff,
v.

JURY TRIAL DEMANDED

GOOGLE INC.,
Defendant.

DECLARATION OF DONALD POWERS IN SUPPORT OF PLAINTIFFS’ RESPONSE
TO GOOGLE’S MOTION TO TRANSFER VENUE
I, Donald Powers, declare as follows:
1.

I have been a member in good standing of the State Bar of Texas since 1986 and

am Litigation Counsel for Rockstar Consortium US LP (“Rockstar Consortium”), one of the
Plaintiffs in this action. I submit this declaration in support of Plaintiffs’ Response to Google’s
Motion to Transfer Venue, which is filed herewith.
2.

Based on my employment with Nortel and Rockstar Consortium, I have relevant

knowledge regarding the instant suit, including knowledge of Nortel’s corporate organization
and structure, Rockstar Consortium’s corporate organization and structure, documents
investigated for purposes of this suit and locations of relevant documents and witnesses, and
parties with first-hand knowledge about the patents-in-suit and activities related to those patents.
I make this declaration based upon my own personal knowledge unless otherwise indicated
herein, and if called as a witness, I could and would competently testify thereto.
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3.

Prior to my employment with Rockstar Consortium, I worked for Nortel for over

13 years as Senior Counsel in the Richardson, Texas office. I began my employment with Nortel
on February 2, 1998 and left the company in April 2011. I joined Rockstar Consortium in
January 2012.
4.

I currently reside in Richardson, Texas, in the Eastern District of Texas, where I

have lived for 17 years.
5.

Rockstar Consortium and NetStar Technologies LLC (“NetStar”) are the assignee

and the exclusive licensee, respectively, of the patents-in-suit, which were previously held by
Nortel.
6.

At the time Nortel filed for bankruptcy, its international headquarters was located

in Ontario, Canada, and Nortel’s United States headquarters was located at 2221 Lakeside
Boulevard in Richardson, Texas—less than one mile from the border of the Eastern District of
Texas. This location was referred to as the Lakeside campus.
7.

The Lakeside campus encompassed over 800,000 square feet of office space,

including two office buildings. At its peak around the year 2000, when the first of the patents-insuit issued, a little fewer than 10,000 employees worked for Nortel in the Dallas area, many of
whom lived in the Eastern District of Texas.
8.

In January 2009, at the time Nortel declared bankruptcy, approximately over

2,000 employees worked at Nortel’s office in Richardson.
9.

The equity owners of Rockstar Consortium are Apple Incorporated (“Apple”),

BlackBerry Corporation (“BlackBerry”), Ericsson Incorporated (“Ericsson”), Microsoft
Corporation (“Microsoft”), and Sony IPLA Holdings Inc. (“Sony”).

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10.

BlackBerry and Ericsson have their United States headquarters in the Dallas area.

BlackBerry’s United States headquarters is in Irving, Texas, and Ericsson’s United States
headquarters is in Plano. There are relevant witnesses and documents in these offices related at
least to the acquisition of the patents-in-suit and Rockstar Bidco.
11.

Microsoft is headquartered in Redmond, Washington.

12.

Apple is headquartered in Cupertino, California.

13.

Sony’s United States headquarters is in New York City. Its intellectual property

operations are run from offices in New Jersey.
14.

Lazard in New York and Global IP Law Group in Chicago advised Nortel in the

auction process. The lead Lazard employee working on the Nortel intellectual property deal was
David Descoteaux, who still works for Lazard in New York. Other advisory team members were
Justin Lux, who now works for Portfolio Advisors in the New York City area; Colin Keenan,
who now works for Brightwood Capital Advisors in New York City; Edouard Gueyffier, who
now lives in the United Kingdom and works for Estin & Co.; and Kshitij Bhatia, who now lives
in India and works for Warburg Pincus.
15.

The United States Nortel entity is now in New York and the Canadian Nortel

entities are in Ontario.
16.

Rockstar Bidco, LP, a separate entity from Rockstar Consortium having separate

management, is also based in New York.
17.

When the sale of the patents-in-suit closed in 2011, many of the former Nortel

employees who worked in the IP group were hired by Rockstar Consortium. Several of Nortel’s
Canadian employees involved in intellectual property were hired by a Canadian entity, Rockstar
Consortium, Inc, which was created as a vehicle to hire those former Nortel employees. The

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Canadian entity entered into a services agreement to provide various intellectual-propertysupport services to Rockstar Consortium.
18.

Rockstar Consortium originally conducted operations out of a portion of the

former Nortel complex at the Lakeside campus that used to house the Nortel IP group. The
company upgraded its facilities in August 2012 when it signed a 7-year lease at its current offices
at Legacy Town Center in Plano, Texas, a short drive away from the Lakeside campus. In
December 2012 Rockstar Consortium finished the build-out of the new Plano office and
completed its move to the new facilities, which are located in the Eastern District of Texas.
19.

The current offices are far more attractive and suitable than the former location,

and Rockstar Consortium selected them to serve as a fully functional headquarters facility that
would attract high-quality employees. The office contains 8,125 square feet, with 10 assigned
offices, 2 guest offices, 7 work areas, and 4 conference rooms in addition to storage space.
20.

Rockstar Consortium’s Plano office is the only office for the company, although

some employees work out of their homes in addition to working from offices in the Plano
facilities.
21.

Rockstar Consortium has 15 full-time employees. 5 employees work full-time

from the Plano office, while the others spend significant time there.
22.

No employees of Rockstar Consortium live in California.

23.

Of the 7 Rockstar Consortium employees who likely have relevant information

about this suit, 3 work full-time in the Plano office, 2 live in Pennsylvania (John Veschi and
Shival Virmani), 1 lives in Colorado (Chad Hilyard), and 1 currently lives in Florida (Gillian
McColgan). The three full-time employees in Plano who likely have relevant knowledge about
this suit are myself, Mark Hearn, and Bernard Tiegerman. Mr. Tiegerman has lived in the

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Eastern District of Texas since 2000 when he started working for Nortel’s Richardson, Texas
office. With the exceptions of Messrs. Virmani and Hilyard, all of us formerly were employed
by Nortel.

I understand that Mr. Hearn has submitted his own declaration discussing his

knowledge of facts and circumstances relevant to this suit. The additional 5 employees (Ms.
McColgan, Mr. Veschi, Mr. Virmani, Mr. Hilyard, and Mr. Tiegerman) all have relevant info
related to damages and monetization, including possible licensing or sale, of the patents-in-suit.
At least Mr. Veschi also has relevant knowledge regarding Google’s knowledge of the patentsin-suit.
24.

The Plano office also contains hard drives from former Nortel and former

Rockstar Consortium employees as well as boxes full of hard copy documents pertaining to the
licensing history of the patents-in-suit, notes related to prior licensing meetings regarding the
patents-in-suit, and internal patent prosecution files for the patents-in-suit.
25.

Rockstar Consortium Inc. employs 21 employees in Canada – 19 in its office in

Ottawa and 2 in Toronto. These employees routinely travel for work to Plano. Approximately 4
or fewer of these employees have relevant information about the lawsuit. It is significantly
easier for these employees to travel from Ontario to the Eastern District of Texas than it is for
them to travel to the Northern District of California, because the employees have support
facilities in Texas, they are well-acquainted with the flights, airports, and routes involved in the
commute, and they are familiar with the E.D. Tex. region by virtue of their routine travel there.
26.

NetStar is an exclusive licensee of the patents-in-suit. NetStar is a subsidiary of

Rockstar Consortium.

NetStar is based in Plano but has no employees who are not also

employees of Rockstar Consortium.

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27.

Willing third-party witnesses in this suit include Richard Weiss, former Deputy

Intellectual Property Counsel for N ortel, and Bruce Garlick, who was the prosecuting attorney
for the patents-in-suit.

In addition, the inventors of the patents-in-suit should be contacted

through counsel.
28.

Other cases filed by Rockstar Consortium in the Eastern District of Texas,

including Case Nos. 2:13-cv-894, 895, 896, 898, 899, 900, and 901, as well as cases filed by
Constellation Technologies, a subsidiary of Rockstar Consortium, including Case Nos. 2: 13-cv1079 and 1080, will share facts with this case. Although the concun'ently filed suits involve
-different patents, all involve common facts related to the circumstances of the auction and the
corporate structure of Rockstar and its subsidiaries and affiliated companies.

I declare under the penalty of perjury that the foregoing is true and COlTect.
Signed this 20th day of February, 2014, at Plano, T

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CERTIFICATE OF SERVICE
I hereby certify that all counsel of record, who are deemed to have consented to
electronic service are being served this 20th day of February, 2014 with a copy of this document
via the Court’s CM/ECF system per Local Rule CD-5(a)(3).

/s/ Justin A. Nelson