Case 1:21-cv-03027-RM-MEH Document 20 Filed 12/27/21 USDC Colorado Page 1 of 19
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`UNITED STATES DISTRICT COURT
`DISTRICT OF COLORADO
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` Civil Action No. 21-cv-03027-RM-MEH
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`CYPH, INC.,
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` Plaintiff,
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` v.
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`ZOOM VIDEO COMMUNICATIONS INC.,
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` Defendants.
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`OPPOSITION TO DEFENDANT’S
`MOTION TO TRANSFER VENUE UNDER 28 U.S.C. §1404
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`Case 1:21-cv-03027-RM-MEH Document 20 Filed 12/27/21 USDC Colorado Page 2 of 19
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES ............................................................................................................. ii
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`PRELIMINARY STATEMENT .........................................................................................................1
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`STATEMENT OF FACTS ................................................................................................................2
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`ARGUMENT .................................................................................................................................6
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`I. APPLICABLE LEGAL STANDARD ................................................................................6
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`II. TRANSFER TO THE NORTHERN DISTRICT COURT OF CALIFORNIA IS NOT
`WARRANTED.............................................................................................................8
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`A. PRIVATE FACTORS WEIGH IN FAVOR OF THIS COURT ................................8
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`1. Evidence Can be easily Accessed ....................................................8
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`2. Zoom has a Strong Connection to This District...............................9
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`3. Plaintiff’s Chosen Court Was Dictated by Law .............................10
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`4. Witnesses Can Be Easily Obtained ................................................11
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`5. Any judgement is Enforceable By This court ...............................14
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`B. PUBLIC FACTORS WEIGH IN FAVOR OF THIS COURT ................................14
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`1. Trial Does Not Involve Multiple Sets of Laws ..............................14
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`2. Jury in This District Will Have Connection to Case ......................14
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`3. This District Has Interests In Hearing This Case ...........................15
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`4. No State Law Governs in This Action ...........................................15
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` CONCLUSION ................................................................................................................................16
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`i
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`Case 1:21-cv-03027-RM-MEH Document 20 Filed 12/27/21 USDC Colorado Page 3 of 19
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`CASES
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`TABLE OF AUTHORITIES
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`PAGE(S)
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`Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir.1991) ........1, 6, 7
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`TC Heartland v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017) ..............................1, 10
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`Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) ...... 6-8, 11
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`Texas E. Transmission Corp. v. Marine Office-Appleton Cox Corp., 579 F.2d 561, 567 (10th Cir.
`1978) ................................................................................................................................................6
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`Wm. A. Smith Contracting v. Travelers Indem. Co., 467 F.2d 662, 664 (10th Cir. 1972) ..............6
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`Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir.1992) .......................................................................6
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`Fireman's Fund Ins. Co. v. Thyssen Mining Constr. of Can., Ltd.,
`703 F.3d 488, 494 (10th Cir.2012) ..................................................................................................7
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`Archangel Diamond Corp. v. Lukoil, 812 F.3d 799, 803 (10th Cir. 2016) ......................................7
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`Van Dusen v. Barrack, 376 U.S. 612 (1964) ...................................................................................7
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`Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) ...............................................................................8
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`STATUTES
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`PAGE(S)
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`28 U.S.C. §1331 .........................................................................................................................3, 14
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`28 U.S.C. §1338(a) ...................................................................................................................3, 14
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`28 U.S.C. §1400(b) ...............................................................................................................1, 3, 10
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`28 U.S.C. § 1404(a) ............................................................................................ 1, 2, 6-8, 12, 14-16
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`35 U.S.C. §271 .....................................................................................................................3, 10, 14
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`ii
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`Case 1:21-cv-03027-RM-MEH Document 20 Filed 12/27/21 USDC Colorado Page 4 of 19
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`Plaintiff Cyph, Inc. (individually “Cyph” or “Plaintiff”), by and through the undersigned
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`Counsel, do hereby oppose Defendant Zoom Video Communication, Inc.’s (“Zoom” or
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`“Defendant”) Motion to Transfer Venue Under 28 U.S.C. §1404(a).
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`PRELIMINARY STATEMENT
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`The present federal action properly belongs in this Court and should not be transferred
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`under 28 U.S.C. §1404(a) to the Northern District of California in that the Private and Public
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`Interest Factors under Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th
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`Cir.1991) all weigh in favor of this Court, the District Court of Colorado, retaining and deciding
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`this case.
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`Specifically, Zoom, being the most successful facilitator of remote attendance of meetings
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`and their sole use of cloud-based storage of its records, has not shown in any convincing manner
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`that the interest of justice and the degree of their expected inconvenience in this Court strongly
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`favors transfer to the Northern District of California. Further, Cyph’s choice of this forum should
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`be given considerable weight under the 10th Circuit case law regarding §1404(a) since the selection
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`of this Court was proper under 28 U.S.C. § 1400(b), as interpreted by the Supreme Court’s opinion
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`in TC Heartland v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017), without contrivance,
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`manipulation or subterfuge.
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`Simply put, Zoom has made a meritless motion to transfer this case to the Northern District
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`of California when Zoom is well aware of the complete lack of support for its motion. Zoom does
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`not dispute that it has a regular place of business and has a number of employees working in
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`Zoom’s facility in this district.1 Zoom has one of its self-described “Global Offices” in this district
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`1 During the parties’ pre-motion meet and confer, Zoom informed Cyph’s legal counsel that
`Zoom will move to transfer the case based on forum non convenience, and did not state that
`Zoom will move to dismiss under Fed. R. Civ. P. 12(b)(3).
`1
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`and a substantial part of the events giving rise to Cyph’s claims occurred in this district. There is
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`no significant inconvenience to Zoom, nor any of the witnesses who may be called to testify for
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`Zoom, nor its access to evidence, if all proceedings and trial are held in this Court. Certainly Zoom
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`has not shown that it would be subject to oppressive and vexation litigation in this District.
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`Therefore, this case should not be transferred to the Northern District of California.
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`A crucial point to note is that Zoom is attempting to mislead and manipulate this Court by
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`describing its Denver Colorado Global Office as a “sales-focused satellite office (see pg. 1, lines
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`8-9 of Zoom’s Motion),” when such could not be further from the truth. Eric S. Yuan, Founder
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`and CEO of Zoom said "[i]nvesting in our people is a key initiative to our growth strategy. We
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`chose to open our new office in Denver because we see this as one of the next hot innovation
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`centers in the US." (see Ex. 1: Zoom Expanding With New Denver Office, GlobeNews Wire, Feb
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`22, 2016).
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`Zoom has not shown that Plaintiff's choice of forum should be disturbed since the balance
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`of Public and Private Interest Factors weigh strongly in favor of this case staying in this Court.
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`Thus, the present federal action properly belongs in this Court and should not be transferred under
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`28 U.S.C. §1404(a) to the Northern District of California. Therefore, Zoom’s motion for transfer
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`should be denied.
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`STATEMENT OF FACTS
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`Cyph is a small company incorporated in the state of Delaware. Cyph’s principal place
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`of business is located at 2093A Philadelphia Pike, Suite 152, Claymont, DE 19703. Zoom is a
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`publicly traded video communications and online media company, organized under the laws of
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`Delaware, with its head office at 55 Almaden Boulevard – 6th floor, San Jose, California, 95113
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`and an official Global Office located at 7601 Technology Way, Suite 300, Denver, Colorado
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`2
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`80237. (see Ex. 2: Zoom website “Contact Us” page). Zoom provides a video communications
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`platform to anyone with internet access, around the world. Since the beginning of coronavirus
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`pandemic in January 2020, Zoom’s subscription and sales volume spiked to produce 2500%
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`growth of net income in 2020. Zoom’s corporation value has soared to pass that of ExxonMobil.
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`The present case is a civil action to halt Zoom’s infringement of Cyph’s End-To-End
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`encryption (“E2EE”) solution as set forth in the claims of U.S. Patent No. 9,948,625 B2 (the “’625
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`Patent”), U.S. Patent No. 10,701,047 (the “’047 Patent”), U.S. Patent No. 10,020,946 (the “’946
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`Patent”), U.S. Patent No. 9,794,070 (the “’070 Patent”), U.S. Patent No. 10,003,465 (the “’465
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`Patent”), and U.S. Patent No. 9,906,369 (the “’369 Patent”) (collectively referred to as the
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`“Asserted Patents”) pursuant to 35 U.S.C. §271 and to recover damages, attorney’s fees, and costs.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§1331
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`and 1338(a) and personal jurisdiction over Zoom, by virtue of both general and specific personal
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`jurisdiction. Also, venue is proper in this district under 28 U.S.C. § 1400(b). First, Zoom has an
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`official Global Office in this jurisdiction at 7601 Technology Way, Suite 300, Denver, Colorado
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`80237. Zoom’s continuous and systematic activities within this jurisdiction gives rise to the
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`required level of contact for general and personal jurisdiction. Second, Zoom’s activities are
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`purposefully directed to encrypting communications of video communication platform users in
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`this district, thereby infringing Cyph’s E2EE solution as set forth in the claims of the Asserted
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`Patents. Zoom’s activities are causing irreparable harm to Cyph in this district, constituting a
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`substantial part of the cause of this action.
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`Zoom is not prejudiced in any way being sued in this district. Zoom, Cyph, and their
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`expected witnesses, will not be inconvenienced in any manner in this district that would be
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`imbalanced or improper. Denver lies 1274 miles east to San Jose, California and 1721 miles west
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`3
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`to Claymont, Delaware, where Cyph is located. Thus, the distances for both parties and their
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`witnesses to this court are relatively equal. Therefore, neither party will bear an imbalance of
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`inconvenience in traveling to this district should the need arise for the witnesses to make personal
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`appearances in this Court.
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`Zoom has nearly 5000 employees worldwide with more than 700 of said employees in
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`China and another approximately 700 of said employees in Denver Colorado.
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`The 700 employees in China are part of Zoom’s research and development team who
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`develop and maintain Zoom’s various products and services. In Zoom’s January 2020 filings to
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`the U.S. Securities and Exchange Commission, Zoom stated that it has a “high concentration of
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`research and development personnel in China,” that its China operations presented a “strategic
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`advantage” because it allowed the company to “invest more in increasing our product capabilities
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`in an efficient manner” and that relocating its product development team outside of China would
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`result in “higher operating expenses.” (see Ex. 3: “US Charges against Zoom Executive Highlights
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`Tech’s China Problem”, by B. Allen-Ebrahimian, Axios, Dec 2020; “A Quick Look at the
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`Confidentiality of Zoom Meetings” by B. Marczak, et al., Move Fast and Roll Your Own Crypto,
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`April 2020).
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`The employees located in China, as admitted by Zoom, can take regularly scheduled flights
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`from China to Denver should the need arise for them to make personal appearances in this Court
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`(see ¶ 9 Jones Declaration). The inconvenience of air travel applies equally to all witnesses and
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`parties. However, Zoom apparently has accepted such inconveniences with respect to its
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`employees located in China since their location in China is an official part of Zoom’s corporate
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`strategy. (see Ex. 3).
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`Importantly, Zoom describes the functions being performed by its nearly 700 employees
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`in its Denver Global office as including engineering services the same as Zoom’s San Jose office.
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`(see Ex. 4, page 2: Zippia.com & Zoom websites). In fact Zoom’s Global Office in Denver has
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`various Engineering jobs including Manager Security Product Analyst-Security Operations, Threat
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`Detection Analyst and Staff Offensive Security Engineer (Backend) and many other Engineering
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`jobs. (see Ex. 4, pages 4-30). Thus, a critical part of Zoom’s product and security software
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`development team is located in Denver Colorado, not San Jose California.
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`Critical to the resolution of this action is Zoom’s E2EE technology acquisition. In an effort
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`to boost security on its platform, Zoom acquired Keybase, Inc. (“Keybase”), which is located in
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`New York. Keybase was a provider of secure messaging and file-sharing services. Keybase was
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`founded in 2014 by Chris Coyne and Maxwell Krohn. Prior to its purchase by Zoom, Keybase
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`implemented a network that used Plaintiff’s patented E2EE solution without Cyph’s permission.
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`Zoom adopted the infringing Keybase solution.
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`Further, upon the acquisition of Keybase, Zoom hired Keybase's team of security and
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`encryption engineers to accelerate Zoom’s implementation of E2EE. (see Ex 5: “Zoom Buys
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`Keybase to Boost Encryption Capabilities,” by G. Narcici, www.crn.com, May 2020). The New
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`York based Keybase team headed by Maxwell Krohn, who serves as Head of Security Engineering
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`at Zoom, reports directly to Zoom’s CEO Eric Yuan. (See Ex. 5 and Ex. 6: RSA Conference 2021
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`brochure & theorg.com website). Thus, yet another critical part of Zoom’s product and security
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`software development team is located in New York city, not San Jose California.
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`Zoom was informed of its infringement of the Asserted Patents at least upon the receipt of
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`Cyph’s October 28, 2020 letter “Re.: U.S. Patents Owned by Cyph, Inc.” Discussions were held
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`among the parties in an attempt to resolve these issues. However, no agreement was reached, and
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`Zoom continued its infringing activities. Therefore, this action was filed to halt Zoom’s
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`infringement of Cyph’s E2EE solution as claimed in the Asserted Patents and to recover damages,
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`attorney’s fees, and costs for the unauthorized infringement.
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`ARGUMENT
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`I.
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`APPLICABLE LEGAL STANDARD
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`A motion to transfer to a more convenient forum is governed by 28 U.S.C. § 1404(a), which
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`provides: “[f]or the convenience of the parties and witnesses, in the interest of justice, a district
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`court may transfer any civil action to any other district or division where it might have been
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`brought. Section 1404(a) affords the district court broad discretion to adjudicate motions to transfer
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`based upon a case-by-case review of convenience and fairness.” Chrysler Credit Corp. v. Country
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`Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir.1991). The party moving to transfer a case pursuant
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`to § 1404(a) bears the burden of establishing that the existing forum is inconvenient. Texas E.
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`Transmission Corp. v. Marine Office-Appleton Cox Corp.,579 F.2d 561, 567 (10th Cir. 1978);
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`Wm. A. Smith Contracting v. Travelers Indem. Co.,467 F.2d 662, 664 (10th Cir. 1972). Chrysler
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`Credit Corp. v. Country Chrysler, 928 F.2d 1509, 1515 (10th Cir. 1991).
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`Importantly, the plaintiff's choice of forum should rarely be disturbed unless the balance
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`weighs strongly in favor of the movant. Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir.1992). The
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`party seeking to transfer the case has the burden of proving that the existing forum is inconvenient.
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`Id.
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`Forum non conveniens is a discretionary power that allows courts to dismiss a case where
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`another court, or forum, is much better suited to hear the case. “Where the court has considered all
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`relevant public and private interest factors, and where its balancing of these factors is reasonable,
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`its decision deserves substantial deference.” Piper Aircraft Co. v. Reyno,454 U.S. 235, 257, 102
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`S.Ct. 252, 70 L.Ed.2d 419 (1981); Fireman's Fund Ins. Co. v. Thyssen Mining Constr. of Can.,
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`Ltd., 703 F.3d 488, 494 (10th Cir.2012) (citing Piper Aircraft,454 U.S. at 257, 102 S.Ct. 252).
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`Archangel Diamond Corp. v. Lukoil, 812 F.3d 799, 803 (10th Cir. 2016).
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`Forum non conveniens dismissals and transfers between federal courts pursuant to 28
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`U.S.C. § 1404(a) are similar but not the same. Transfers between federal courts pursuant to 28
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`U.S.C. § 1404(a) were construed in Van Dusen v. Barrack, 376 U.S. 612 (1965) as precluding a
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`transfer if it resulted in a change in the applicable law. 28 U.S.C. § 1404(a) was enacted to permit
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`change of venue between federal courts, but was drafted in accordance with the doctrine of forum
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`non conveniens. Thus, the same or similar factors must be considered in Forum non
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`conveniens dismissals and transfers between federal courts pursuant to 28 U.S.C. § 1404(a). Van
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`Dusen v. Barrack, supra, distinguished. pp. 253-254. Piper Aircraft Co. v. Reyno, 454 U.S. 235,
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`236 (1981).
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`The court should consider the following factors in determining whether to transfer a case
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`pursuant to 28 U.S.C. § 1404(a): the plaintiff's choice of forum; the accessibility of witnesses and
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`other sources of proof, including the availability of compulsory process to insure attendance of
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`witnesses; the cost of making the necessary proof; questions as to the enforceability of a judgment
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`if one is obtained; relative advantages and obstacles to a fair trial; difficulties that may arise from
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`congested dockets; the possibility of the existence of questions arising in the area of conflict of
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`laws; the advantage of having a local court determine questions of local law; and, all other
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`considerations of a practical nature that make a trial easy, expeditious and economical. Chrysler
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`Credit Corp., 928 F.2d at 1516.
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`“To guide trial court’s discretion, the Court provided a list of "private interest factors"
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`affecting the convenience of the litigants, and a list of "public interest factors" affecting the
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`convenience of the forum.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), Piper Aircraft Co. v.
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`Reyno, 454 U.S. 235, 241 (1981).
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`The Private Interest Factors include (a) ease of access to evidence, (b) interest of the two
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`parties in their connections with the respective forums, (c) the plaintiff's chosen court would be
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`burdensome to the defendant, (d) ease of obtaining witnesses and (e) enforceability of judgment
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`and the Public Interest Factors include (a) whether the trial would involve multiple sets of laws,
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`(b) having juries who may have a connection to the case, (c) local interest in having local interests
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`heard at home and (d) having the trial in a place where state laws govern. Id.
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`The analysis below shall be conducted using the Private and Public Interest Factors noted
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`above.
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`II.
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`TRANSFER TO THE NORTHERN DISTRICT COURT OF CALIFORNIA IS NOT
`WARRANTED
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`The present federal action properly belongs in this Court and should not be transferred
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`under 28 U.S.C. §1404(a) to the Northern District of California. The Private and Public Interest
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`Factors all weigh in favor of this Court, the District Court of Colorado, retaining and deciding this
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`case.
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`A.
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`PRIVATE INTEREST FACTORS WEIGH IN FAVOR OF THIS COURT
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`1.
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`Evidence Can be easily Accessed
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`Zoom has admitted that its records, some of which may serve as evidence in this action,
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`are stored in various cloud storage services. (see ¶¶ 18-20 Rao Declaration). These cloud storage
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`services, which include for example NetSuite, a subsidiary of Oracle Corporation Oracle, are easily
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`accessible from any computer or mobile device anywhere on the globe including this District. The
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`current Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) regarding discovery of Electronically
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`Stored Information (“ESI”) and this Court’s Guidelines Addressing the Discovery of ESI are more
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`than adequate to address this issue and not inconvenience Zoom in its ease of access to said ESI,
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`nor interfere with Zoom’s required productions responsive to discovery requests and to formulate
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`its defense for trial.
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`Zoom simply needs to produce any requested ESI in a form the parties agree, whether by
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`disk, flash drive, storage transfer or the like, to Counsel for Cyph responsive to discovery requests
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`without the need for travel to this District. Further, Counsel for Zoom (i.e. Timothy C. Saulsbury,
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`Esq.) has his office in San Francisco and at said location Counsel for Zoom can easily access
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`witnesses for Zoom and access, inspect and review any ESI in his client’s office in San Jose or
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`Counsel’s Office in San Francisco to meet Zoom’s required productions responsive to discovery
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`requests and to formulate its defense for trial without the need to travel to this District. For trial,
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`Counsel for Zoom can easily prepare the discovered and relevant ESI to be instantly accessible
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`from portable storage devices or cloud storage networks in this District.
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`Thus, Zoom has not shown in any convincing manner that its access to evidence would be
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`inconvenienced by a suit in this Court. Therefore, this factor does not weigh in favor of Zoom’s
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`request for transfer.
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`2.
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`Zoom has a Strong Connection to This District
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` Zoom has a strong connection to this District. In fact Eric S. Yuan, Founder and CEO of Zoom
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`said "[i]nvesting in our people is a key initiative to our growth strategy. We chose to open our new
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`office in Denver because we see this as one of the next hot innovation centers in the US." (see Ex.
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`1). Further, Zoom has announced to the world that the Denver Colorado office is one of its limited
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`number of Global Offices, not some special purpose, back-office operation. (see Ex. 2).
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`Zoom’s corporate posture is entirely contradicted by Zoom’s false allegations in this action
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`that the Denver Colorado Global Office is a “sales-focused satellite office.” (see pg. 1, lines 8-9
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`9
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`of Zoom’s Motion). Zoom is attempting to mislead and manipulate this Court regarding its strong
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`ties to this District. In any event if “Zoom’s Denver office focuses on enterprise sales” as alleged
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`in ¶ 11 of the Rao Declaration, then Zoom’s Denver office is conducting systematic and regular
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`and continuous acts of selling and offering for sell Cyph’s patented technology without Cyph’s
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`permission in violation of 35 U.S.C. §271. This is further evidence of Zoom’s strong connection
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`to this District.
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`Thus, Zoom has not shown in any convincing manner that it has no strong connection to
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`this District. Therefore, this factor does not weigh in favor of Zoom’s request for transfer.
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`3.
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`Plaintiff’s Chosen Court Was Dictated by Law
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`Cyph’s choice of this forum should be given considerable weight since the selection of this
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`Court was dictated by law, namely 28 U.S.C. § 1400(b), as interpreted by the Supreme Court’s
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`opinion in TC Heartland v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017). Cyph selected
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`this District without contrivance, manipulation or subterfuge and certainly did not seek to
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`somehow wrestle Zoom into an inappropriate district and court.
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`Zoom complains that “plaintiff’s choice of forum is provided even less deference where,
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`as here, the plaintiff does not reside in the district.” Defendant appears to completely
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`misunderstand the patent venue statute under 28 U.S.C. § 1400(b). The plaintiff in a patent
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`infringement action cannot, without concern, file suit wherever the Defendant can be found.
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`“§1400(b) is the sole and exclusive provision controlling venue in patent infringement actions” TC
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`Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514, 1519 (2017).
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`Further, more often than not, as in this situation, the Plaintiff does not reside, or have
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`connections, in the venue dictated by the patent venue statute. The patent venue statute was
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`intentionally drafted to provide home court advantage to the corporate infringer. Thus, the
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`selection by Cyph of one of the statutorily defined home courts available to Zoom for patent
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`infringement actions should be given considerable weight and not disturbed.
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`“[A] plaintiff's choice of forum should rarely be disturbed. However, when an alternative
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`forum has jurisdiction to hear the case, and when trial in the chosen forum would "establish . . .
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`oppressiveness and vexation to a defendant . . . out of all proportion to plaintiff's
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`convenience," or when the "chosen forum [is] inappropriate because of considerations affecting
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`the court's own administrative and legal problems," the court may, in the exercise of its sound
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`discretion, dismiss the case. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981). Zoom has not
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`alleged, nor is it possible for Zoom to be subjected to, oppressiveness and vexation litigation in
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`this District. Id. In fact the District of Colorado is one of the few districts that have promulgated
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`special rules for the conduct of Patent Proceedings (see D.C.COLO.LPtR 1-17). Further, Zoom
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`has not alleged that it would be subjected to any administrative or legal problems of any
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`significance that are unique to this Court that would prevent the exercise of justice. Id.
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`Thus, Zoom has not shown in any convincing manner that Cyph’s choice of this forum
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`should be disturbed. Therefore, this factor does not weigh in favor of Zoom’s request for transfer.
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`4. Witnesses Can Be Easily Obtained
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`Access to the witnesses for Zoom can be easily obtained in this District. As noted by
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`Counsel for Zoom there are numerous flights between the Denver Airport and countless cities in
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`the U.S. and around the world including cities in China. (see ¶ 9 Jones Declaration). Thus, outside
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`of trial, in the rare instance where the presence of witnesses for both the Plaintiff and Defendant
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`are required in this Court, all witnesses and Counsel for Plaintiff and Defendant would share in
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`the inconvenience of a flight to the Denver Airport. If transfer to the Northern District of California
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`is granted, which Plaintiff submits should not be granted, the only party to be inconvenienced by
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`a flight to the San Francisco airport would be Plaintiff’s witnesses and Plaintiff’s Counsel. Plaintiff
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`submits that this would be an inappropriate shift of the entire burden of the inconvenience of this
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`action to Plaintiff and such a shift would not be in the interest of justice. Specifically such a shift
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`would be in violation of 28 U.S.C. § 1404(a), which provides that transfer is possible “[f]or the
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`convenience of the parties and witnesses, in the interest of justice.
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` It is noted that depositions of witnesses and attendance at court hearings over the past two
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`years under COVID restrictions, in numerous courts and countless matters, have routinely been
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`conducted using the teleconferencing, telecommuting and distance education services provided by
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`the system and network constructed by Zoom. Thus, neither of the parties and their witnesses
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`would be inconvenienced by travel if current COVID practices continue and are followed.
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`Further, half of the witnesses as admitted by Zoom as being in the Northern District are
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`administrators (e.g., Shane Crehan – Chief Accounting Officer) and of minimal importance to the
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`threshold questions of claim construction, infringement and liability. At most, these administrators
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`would apparently provide testimony relevant to the issue of damages or willfulness – questions
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`apart from the threshold questions of claim construction, infringement and liability.
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`In contrast, relevant engineers with critical technical testimony directed to the questions of
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`claim construction, infringement and liability are admitted by Zoom as not being located in the
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`Northern District of California, but rather in China. (see ¶ 16 Rao Declaration and ¶ 9 Jones
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`Declaration). As per Zoom’s public statement 700 of its employees in China are part of Zoom’s
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`research and development team who develop and maintain Zoom’s various products and services.
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`Thus, relevant testimony may be obtained from Zoom’s product and security software
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`development teams in China, not San Jose California.
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`Case 1:21-cv-03027-RM-MEH Document 20 Filed 12/27/21 USDC Colorado Page 16 of 19
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`Also, Zoom describes the functions being performed by its 700 employees in its Denver
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`Global Office as including engineering functions the same as Zoom’s San Jose office. The Denver
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`Global Office employs numerous Engineers who are exceedingly technically competent with
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`Zoom’s products and security software. (see Ex. 4, pages 4-30). Thus, relevant testimony may be
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`obtained from Zoom’s product and security software development teams in Denver, not San Jose
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`California. Also, relevant testimony on the “enterprise sales” being conducted by Zoom in this
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`district by Zoom’s Denver Global Office (see ¶ 11 Rao Declaration) may be obtained from
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`employees in the Denver Global Office.
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`Zoom acquired Keybase which is located in New York. Keybase was founded by Chris
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`Coyne and Maxwell Krohn. Prior to its purchase by Zoom, Keybase implemented a network that
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`used Plaintiff’s patented E2EE solution without Cyph’s permission. Zoom adopted the infringing
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`Keybase solution. Upon acquisition of Keybase, Zoom hired Keybase's team of security and
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`encryption engineers to accelerate Zoom’s implementation of E2EE that infringes Plaintiff’s
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`Asserted Patents. The New York based Keybase team headed by Mr. Krohn, who serves as Head
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`of Security Engineering at Zoom, reports directly to Zoom’s CEO Eric Yuan. Thus, relevant
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`testimony may be obtained from Mr. Krohn and his New York based Keybase team in New York,
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`not San Jose California. (see Exs. 5 and 6).
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`It should be noted that at no point has Zoom proffered that any of its proposed witnesses
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`would not agree to provide testimony in this District whether by deposition or at trial.
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`Thus, Zoom has not shown in any convincing manner that its ease of obtaining witnesses
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`would be inconvenienced by a suit in this Court. In fact based on Plaintiff’s independent research
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`and Zoom’s admissions, the majority of the important witnesses with relevant testimony in this
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`action do not reside in the Northern District of California. Therefore, this factor does not weigh in
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`favor of Zoom’s request for transfer.
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`5.
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`Any judgement is Enforceable By This court
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`Any judgement by this Court is enforceable by this Court. There has been no dispute by
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`Zoom that this Court lacks subject matter jurisdiction over this action pursuant to 28 U.S.C.
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