Rockstar Consortium US LP et al v. Google Inc

Filing 41

SUR-REPLY to Reply to Response to Motion re 18 MOTION to Change Venue filed by NetStar Technologies LLC, Rockstar Consortium US LP. (Attachments: # 1 Affidavit of Justin A. Nelson, # 2 Exhibit 16)(Nelson, Justin)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
ROCKSTAR CONSORTIUM US LP
AND NETSTAR TECHNOLOGIES
LLC
Plaintiffs,

Case No. 2:13-cv-00893-JRG-RSP

v.
GOOGLE INC.

JURY TRIAL DEMANDED

Defendant.

PLAINTIFFS’ SURREPLY TO GOOGLE’S MOTION TO TRANSFER

Instead of addressing many of the points that Plaintiffs raised in their Response, Google’s
Reply simply ignores them. It does not explain, for example, the evidence showing Google has
witnesses with relevant knowledge and relevant documents in India, New York City, and Dallas.
It does not address whether Google’s offices in or near this District can “access” documents just
as easily as its California headquarters. It does not deny that Google’s own former employee
who led Google’s attempted purchase of the patents-in-suit now lives on the East Coast, along
with numerous other third-party witnesses who have relevant knowledge about the auction. It
does not contend that the only prior art on which it intends to rely is the prior art discussed in its
Motion. And it does not address the location of its evidence related to search-plus-advertising
for third-party sites. As in this Court recently stated in My Health, Inc. v. Click4Care, Inc., No.
2:13-cv-137, Dkt. 32, at *4 (E.D. Tex. Mar. 20, 2014), it “routinely observes movants utilizing
carefully worded statements to avoid disclosing key facts that disfavor their positions, especially
in the context of a Motion to Transfer.” Instead of trying to solve its evidentiary issues, Google
focuses its Reply on downplaying the substantial connections that both Plaintiffs and third
parties have to this District and mischaracterizing Plaintiffs’ arguments. Google cannot meet its
heavy burden to show that transfer is clearly more convenient.
A.

Relative Ease of Access to Sources of Proof Favors Plaintiffs
Rockstar’s Response documented the numerous ways in which Google’s proffer

regarding access to documents was insufficient. Response at 5-8, 9-11. In its Reply, however,
Google spends one paragraph on this point and notably does not supplement the record or fix any
of its deficiencies. Google still maintains the language from its Motion, carefully stating that its
documents “are in or easily accessible from” its headquarters in California. Reply at 4 (emphasis
added). Yet Google makes no attempt to list the documents “in” California and the documents

that are just “easily accessible from” there. The fact that a server is “ultimately managed” from
California, Reply at 4, says nothing about the documents’ locations.

Google did file a

supplemental declaration stating that its office in the Eastern District of Texas closed in
December, after Plaintiffs filed this suit. As a threshold matter, this Court judges the facts at the
time of suit and this Court frowns upon a defendant’s venue manipulation. MobileMedia Ideas
LLC v. HTC Corp., 2012 WL 1570136 at *3 (E.D. Tex. May 3, 2012). Regardless, however,
Google still maintains an office near the Eastern District of Texas, in the Dallas area according to
its website. Exh. 16 (attached). It is silent on whether “nearly all” relevant documents are just as
“easily accessible from” there. Indeed, that Google’s declarant Abeer Dubey apparently did not
know in January that its Eastern District of Texas office closed at least one month prior calls into
question the factual basis of his entire Declaration.
Google also passed on the opportunity to address whether relevant documents exist in
India or New York City or Dallas, saying literally nothing about those offices despite the
evidence Plaintiffs presented on the subject. Response at 6-7 (citing Exhs. 3-8). And Google
still does not address any documents related to one of the accused products—namely searchplus-advertising on third-party sites—despite evidence suggesting those documents are on the
East Coast and Dallas, among other locations. Response at 8. Google argues that it did not
address this instrumentality in its Motion because Plaintiffs did not specifically list it in the
complaint. But not only did Plaintiffs specifically present this specific infringement allegation to
Google before suit, Response at 8, Google still does not address this issue in its Reply.
Instead, Google accuses Plaintiffs of a lack of specificity of its own documents. This
allegation not only is untrue, it is irrelevant because Google bears the heavy burden. Regardless,
however, Plaintiffs detailed their documents in this District.

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Resp. at 4-5. Plaintiffs also

discussed the third-party documents likely to exist on the East Coast due to the auction. Id. at 34. Google concedes the relevance of this “bidding process.” Mot. at 2. The detail that Plaintiffs
provide about Rockstar’s equity owners is more extensive than what Google gave for those same
equity owners. Google also criticizes Plaintiffs for describing the documents of the prosecuting
attorney in a general manner. But given that Google has made inequitable conduct allegations
that mention the prosecuting attorney thirty times, the general description itself is sufficient.
B.

Availability of Compulsory Process Favors Plaintiffs
Google relies primarily on the existence of self-identified prior art witnesses in

California. Some of these witnesses work at Google, and the PTO did not cite all the art it now
identifies. Mot. at 3-5. Google still refuses to state that it will not rely on other prior art. And
while Google has identified some witnesses in California, Plaintiffs submitted a chart showing
prior art witnesses around the country—including in Dallas. Resp. at 9-10.
Numerous third party witnesses live within the absolute subpoena power of the Eastern
District of Texas, including former Nortel employees who have specific knowledge of the
patents-in-suit and discussions with Google; the CBS affiliate in Dallas who uses Google’s
accused product; and the prosecuting attorney who Google cites thirty times in its answer. Resp.
at 2-3, 8. Google attempts to dismiss two of these third-party witnesses because they are willing
witnesses. But Google as the movant never claims that the prior art witnesses on which it relies
so heavily would be unwilling to come to Texas. This Court either should not rely on Google’s
self-identified witnesses because of this failure of proof or it should examine third party
witnesses more broadly. See Geotag, Inc v. OnTargetJobs, Inc., No. 2:13-cv-64, Dkt. 28, at *4
(E.D. Tex. Mar. 7, 2014) (Gilstrap, J.) (citing caselaw and holding that “the presence or absence
of potential third-party witnesses” is the focus of this prong). Either way, this factor favors

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Plaintiffs. Moreover, contrary to Google’s assertion, Plaintiffs have identified other third-party
witnesses in or near this District besides the two listed willing witnesses in Texas. See Resp. at
2-4, 8, 13; Power Dec. ¶¶ 10, 27; Hearn Dec. ¶¶ 3-4. Looking at third-party witnesses as a
whole, this factor favors Plaintiffs or at minimum is neutral. Resp. at 13-14; supra page 5.
C.

The Cost of Attendance of Willing Witnesses Favors Plaintiffs
This factor strongly favors Plaintiffs. As discussed extensively above, Google provides

no explanation regarding the evidence Plaintiffs submitted in their Response showing that
Google has witnesses with relevant knowledge in New York, India, and Dallas. See My Health,
No. 2:13-cv-137, at *3-4. This silence is intentional, especially considering that this Court has
denied transfer where the movant had relevant employees in both California and India. Portal
Techs., LLC v. Yahoo! Inc., 2012 WL 3242205 at *2-3 (E.D. Tex Aug. 7, 2012). Google does
not identify a single witness who has knowledge of the accused systems. My Health, No. 2:13cv-137, at *3-4. The only possible witnesses it identifies are prior-art witnesses who work for
Google, not those who have knowledge of the accused products. Dubey Dec. ¶ 8; Mot. at 3, 5.
Plaintiffs, by contrast, have specifically identified seven employees who likely have
relevant knowledge. These include three who work full-time in Plano, three on the East Coast,
and none in California. Google also tries to downplay the convenience for the employees of
Rockstar’s affiliate in Eastern Canada. These employees routinely travel to Rockstar’s United
States headquarters in this District. Looking solely at the parties, this factor favors plaintiffs.
An examination of third parties—which is the primary focus here—only helps Plaintiffs.
Google does not identify a single third-party willing witness, while Plaintiffs have identified two
in Texas alone. Resp. at 13. Across all third party witnesses, this factor still favors Plaintiffs.
Plaintiffs identified a third party in this area who met with Google while at Nortel. Resp. at 3.

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Google tries to downplay the third-party equity investors and participants in the auction process
(including former Google employees) who live in Texas and the East Coast. Plaintiffs detailed
why they have relevant evidence. Resp. at 3-4; Powers Dec. ¶ 10. Google itself has relied in
support of its Motion that one of the five equity investors in Rockstar resides in California. Mot.
at 2; Reply at 5. The problem for Google, however, is that, one of the other equity investors is in
Irving, Texas, and another (Ericsson) resides in the Eastern District of Texas. Powers Dec. ¶ 10.
Moreover, the third-party witnesses related to the auction itself—a main component of this
case—are closer to this District than California. Google states that central location does not
matter, citing In re Genentech, Inc., 566 F.3d 1338 (Fed. Cir. 2009). But in that case, no relevant
witnesses were in this District. This Court routinely considers distance for third-party witnesses
where some witnesses are here. Geotag, No. 2:13-cv-64, at *4 (citing Fifth Circuit law).
D.

The Other Factors Favor Transfer or Are Neutral
On judicial economy, this case likely will share at least some discovery with the other

Rockstar cases in this District, as even Google concedes. Google also provides no separate
reason for why the local interest favors transfer. On court congestion and time to trial, Google
backs away from its Motion showing a faster trial time here. Mot. at 15. Now it focuses on time
to disposition, but this Court focuses on time to trial. TQP Dev. LLC v. Yelp Inc., 2013 WL
5450309 at *6 (E.D. Tex. Sep. 30, 2013) (Payne, J). The same source Google cites shows that
the time to trial is faster here (25.5 months here versus 27.5 months there). Google Exh. 46 at 23. This Court has found that given the time lag to transfer a case, the factor did not favor transfer
even where the statistics showed the same time to trial. Id. This disparity is likely to favor this
District even more once this Court sets a trial date at the April 7 scheduling conference.
For all the foregoing reasons, this Court should deny Google’s Motion to Transfer.

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DATED: March 27, 2014

Respectfully submitted,
By: /s/ Justin A. Nelson
Max L. Tribble, Jr. – Lead Counsel
State Bar No. 20213950
Alexander L. Kaplan
State Bar No. 24046185
John P. Lahad
State Bar No. 24068095
Shawn Blackburn
State Bar No.
SUSMAN GODFREY L.L.P.
1000 Louisiana Street, Suite 5100
Houston, Texas 77002
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Justin A. Nelson, State Bar No. 24034766
Parker C. Folse, III, WA State Bar No. 24895
SUSMAN GODFREY L.L.P.
1201 Third Ave, Suite 3800
Seattle, Washington 98101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
T. John Ward, Jr., State Bar No. 00794818
WARD & SMITH LAW FIRM
P.O. Box 1231
Longview, TX 75606-1231
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Rockstar Consortium US LP and
NetStar Technologies LLC

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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 27th day of March, 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
Justin A. Nelson

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