Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 1 of 20
` [REDACTED VERSION]
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`10TALES, INC.,
`
`Plaintiff,
`
`v.
`
`TIKTOK INC., TIKTOK PTE. LTD.,
`BYTEDANCE LTD., and BYTEDANCE
`INC.,
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`Case No. 6:20-cv-00810-ADA
`
`JURY TRIAL DEMANDED
`
`PLAINTIFF 10TALES, INC.’S OPPOSITION
`TO DEFENDANTS’ MOTION TO TRANSFER UNDER 28 U.S.C. § 1404
`
`

`

`Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 2 of 20
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`TABLE OF CONTENTS
`
`Page
`
`I.
`
`INTRODUCTION ............................................................................................................................. 1
`
`II. RELEVANT FACTUAL BACKGROUND .................................................................................... 3
`
`III. ARGUMENT ..................................................................................................................................... 8
`
`A. Legal Standard Governing Transfer Under 28 U.S.C. § 1404(a) ............................................... 8
`
`1.
`
`The Private Interest Factors Weigh Against Transfer ............................................................ 9
`
`a.
`
`b.
`
`The Relative Ease of Access to Sources of Proof Weighs Against Transfer .................... 9
`
`The Availability of Compulsory Process to Secure the Attendance of Witnesses
` Weighs Against Transfer .................................................................................................. 11
`
`c.
`
`The Cost of Attendance for Willing Witnesses Weighs Against Transfer ...................... 12
`
`2.
`
`The Public Interest Factors Weigh Against Transfer ........................................................... 13
`
`a. Court Congestion Weighs Against Transfer ..................................................................... 13
`
`b.
`
`c.
`
`The NDCA Has No Greater Local Interest ...................................................................... 14
`
`The Remaining Factors Do Not Favor Transfer ............................................................... 15
`
`IV. CONCLUSION ................................................................................................................................ 15
`
`i
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`

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`Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 3 of 20
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`
`
`Cases
`
`Atl. Marine Constr. Co. v. U.S. Dist. Ct.,
`571 U.S. 49 (2013) ............................................................................................................................. 8
`
`In re Barnes & Noble, Inc.,
`743 F.3d 1381 (Fed. Cir. 2014) ........................................................................................................ 13
`
`Doe v. Kanakuk Ministries,
`Civ. No. 3:11-cv-0524-G, 2012 WL 715980 (N.D. Tex. Mar. 5, 2012) ........................................ 10
`
`Frederick v. Advanced Fin. Sols., Inc.,
`558 F.Supp.2d 699 (E.D. Tex. Sept. 26, 2007) ............................................................................... 11
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009) ........................................................................................................ 13
`
`Geotag, Inc. v. Ontargetjobs, Inc.,
`Civ. No. 2:13-cv-0064-JRG, 2014 WL 12776293 (E.D. Tex. Mar. 7, 2014) ................................ 14
`
`Hammond Dev. Int’l, Inc. v. Google LLC,
`1:20-cv-00342-ADA, 2020 WL 3452987 (W.D. Tex. June 24, 2020) .......................................... 13
`
`In re Hoffman-La Roche, Inc.,
`587 F.3d 1333 (Fed. Cir. 2009) ........................................................................................................ 15
`
`Kuster v. W. Digital Techs., Inc.,
`Civ. No. 6:20-cv-00563-ADA, 2021 WL 466147 (W.D. Tex. Feb. 9, 2021) ................................ 13
`
`Moskowitz Family LLC. v. Globus Medical, Inc.,
`Civ. No. 6:19-cv-00672-ADA, 2020 WL 4577710 (W.D. Tex. July 2, 2020) .............................. 12
`
`Stragent LLC v. Audi AG,
`Civ. No. 6:10-cv-227-LED-JDL, 2011 WL 2912907 (E.D. Tex. July 18, 2011) .......................... 13
`
`Texas Data Co., L.L.C. v. Target Brands, Inc.,
`771 F. Supp. 2d 630 (E.D. Tex. Jan. 12, 2011) ........................................................................... 8, 11
`
`USC IP P’ship, L.P. v. Facebook, Inc.,
`Civ. No. 6:20-cv-00555-ADA, 2021 WL 860007 (W.D. Tex. Mar. 8, 2021) ............................... 10
`
`In re Volkswagen AG,
`371 F.3d 201 (Fed. Cir. 2004) .......................................................................................................... 12
`
`ii
`
`

`

`Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 4 of 20
`
`
`
`In re Volkswagen of Am. Inc.,
`545 F.3d 304 (5th Cir. 2008) (cert. denied) ................................................................................... 8, 9
`
`Weber v. PACT XPP Techs., AG,
`811 F.3d 758 (5th Cir. 2016) .............................................................................................................. 9
`
`Statutes
`
`28 U.S.C. § 1404 ....................................................................................................................... 1, 8, 13, 15
`
`
`
`iii
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`

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`Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 5 of 20
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`
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`Plaintiff, 10Tales, Inc. (“10Tales”) respectfully submits this opposition to Defendants’ Motion
`
`to Transfer Under 28 U.S.C. § 1404 (Dkt. No. 24) and Notice of Joinder of TikTok’s Motion to
`
`Transfer Pursuant to § 1404 filed on January 27, 2021, (Dkt. No. 47) (“Motion”).
`
`I.
`
`INTRODUCTION
`
`Defendants are “TikTok”—a China-based enterprise consisting of a group of companies1 with
`
`offices around the globe, including in Austin, Texas. At the time TikTok filed its Motion, TikTok
`
`attempted to hide behind its corporate structure, contesting jurisdiction and venue, and basing the
`
`§ 1404 issues on the facts of one specific entity—TikTok Inc.2 After three related entities were joined,
`
`TikTok abandoned its venue and jurisdiction claims.3 However, TikTok never updated its Motion to
`
`account for the three additional entities in the case. Instead, TikTok has, tellingly, relied on evidence
`
`and argument presented when only TikTok Inc. was a defendant.
`
`As this brief shows, the Northern District of California (“NDCA”) is not clearly more
`
`convenient than this District. TikTok admitted in venue discovery that Austin is among their offices
`
`playing “
`
`.”
`
`TikTok’s NDCA office is a
`
` office (its U.S. headquarters is in Los Angeles County, California,
`
`not in the NDCA). In its quest to portray the NDCA as more convenient, TikTok provided limited
`
`factual evidence that, upon close examination, is, at best, problematic—the sole declarant supporting
`
`the Motion was
`
` most of her statements, making it of little to no value. In many
`
`instances, she never made the inquires necessary to support the factual statements in her declaration.
`
`
`1 For example, in the U.S., there are, at least: TikTok Inc.; TikTok Pte. Ltd.; ByteDance Ltd.; and
`ByteDance Inc. Collectively, TikTok has over 60,000 employees.
`2 In reading TikTok’s only evidence—the declaration of Ms. Nicola Raghavan (Dkt. No. 24, Ex. A
`(“Raghavan Dec.”)—it is important to notice (and be aware of) how and when specific entity names
`are used.
`3 Venue discovery has shown the companies were always, in fact,
`
`
`
`
`1
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`

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`Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 6 of 20
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`
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`Perhaps even worse, TikTok withheld evidence that was, presumably, helpful to presenting the full
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`picture (e.g., information regarding documents and custodians).
`
`Venue discovery was conducted, and the reality it shows is quite different from the picture
`
`painted by TikTok’s Motion. TikTok’s witnesses testified that the employees most knowledgeable
`
`about the “making” of the accused system in the United States—that is the witnesses most
`
`knowledgeable about TikTok’s
`
`—are
`
`located
`
`, each of which is much closer to this
`
`District than the NDCA. TikTok also provided testimony that the employees most knowledgeable
`
`about the revenues earned from use of the accused system in the United States are located in
`
`
`
`.
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`As to its physical sources of proof, TikTok admits that their technical documents and software
`
`source code repositories are maintained in
`
`
`
` The majority of the technical documents TikTok produced concerning the infringing
`
`technology
`
`
`
`.4
`
`All of this makes perfect sense – TikTok and their related companies are based in China, and
`
`launched their product from China before their U.S. offices opened. The technical documents and
`
`source code relating to the accused functionality in this case—including the infringing
`
`recommendation system—
`
`
`
` TikTok’s Mountain View
`
`office is just another of its offices, not a central source of proof.
`
`
`4 TikTok’s Transparency Center is located in Culver City, Los Angeles County, California, which is
`located in the Central District of California, not the NDCA.
`
`2
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`

`

`Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 7 of 20
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`
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`It is unclear why TikTok believes transfer to NDCA is proper, but as this Court has made clear,
`
`10Tales’ choice of forum should not be disturbed unless TikTok clearly demonstrates that such a
`
`transfer is “[f]or the convenience of parties and witnesses, in the interest of justice.” TikTok’s evidence
`
`falls well short of the required “clear” showing they must make to justify transfer. As such, 10Tales
`
`respectfully requests that the Court deny TikTok’s Motion.
`
`II.
`
`RELEVANT FACTUAL BACKGROUND5
`
`1.
`
`David Russek is the inventor of U.S. Patent No. 8,856,030 (“the ’030 patent”), and
`
`10Tales is the owner of the ’030 patent by virtue of an assignment effective as of March 29, 2015.
`
`(FAC, ¶¶ 2, 52). 10Tales is a Delaware corporation with a principal place of business at 18 Coal Street,
`
`Middleport, Pennsylvania 17953. (Russek Dec., ¶ 4). Mr. Russek also resides in Middleport,
`
`Pennsylvania, see (id., ¶ 2), which is 1,500 miles from Waco, Texas, and 2,800 miles from the N.D.
`
`California.
`
`2.
`
`TikTok develops, operates, distributes, and markets the TikTok application throughout
`
`the United States, and that includes the accused system: TikTok’s recommendation engine and the
`
`software, hardware, and servers that support same. (
`
`
`
`representative
`
`,
`
`, TikTok’s Culver City office in Los Angeles
`
`). According to TikTok’s designated
`
`county is essentially the
`
` in the United States,
`
`
`
`). TikTok considers Austin, Texas to be
`
`
`
`
`
`
`
`
`5 References to the Declaration of Rudolph “Rudy” Fink IV shall appear as “RDF Dec.” References
`to venue discovery depositions of TikTok’s witnesses, which are attached to the RDF Dec., shall
`appear as “[Witness Last Name], at [Page]:[Line]-[Page]:[Line].” References to the First Amended
`Complaint (Dkt. No. 28) shall appear as “FAC.” References to the Declaration of David Russek,
`attached as Ex. 14 to the RDF Dec., shall appear as “Russek Dec.”
`
`3
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`

`

`Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 8 of 20
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`
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`Potentially Relevant Documents
`
`
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`3.
`
`10Tales expects to find evidence of infringing conduct in the software source code
`
`supporting TikTok’s “recommendation system” used with the TikTok “For You” feed. See (FAC,
`
`¶¶ 3, 61-65). According to TiKTok’s
`
` the source code is written by
`
`
`
`
`
` (
`
`). TikTok has informed 10Tales that it will make
`
`such source code available for inspection at their “Transparency Center” located in Los Angeles
`
`County. (RDF Dec., Ex. 2).
`
`
`
`4.
`
`Venue discovery has shown this source code is available
`
`
`
`(
`
`
`
`
`
`,
`
`
`
`.
`
`
`
`.
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`5.
`
`TikTok’s data centers in the United States are located in
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
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`
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`6 In addition to Austin, Texas, TikTok identified offices in Washington, D.C., Los Angeles, California,
`Mountain View, California, Northern Virginia, New York City, and Miami, Florida as the
`
` in the United States. (
`).
`7 Defendant TikTok Pte. Ltd.
`
` in Singapore.
`
`
`
`4
`
`

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`Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 9 of 20
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`
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`6.
`
` (
`
`
`
`).
`
`
`
`
`
` (Id.). Significantly,
`
` also testified that the technical documents that TikTok
`
`produced in response to the Court’s Scheduling Order (Dkt. No. 41) are documents maintained by
`
`TikTok
`
`identify a single
`
`
`
`. (
`
`
`
`).
`
` could not
`
`
`
`Location of Potential Party and Non-Party Witnesses
`
`7.
`
`In addition to expert witnesses, 10Tales expects that Mr. Russek, the inventor of the
`
`’030 patent, will be a witness at trial. Mr. Russek resides in Pennsylvania. (Russek Dec., ¶ 2).
`
`8.
`
`TikTok did not identify, despite repeated requests in jurisdictional discovery (e.g.,
`
`interrogatories, requests for production, and depositions), a single individual with knowledge, let alone
`
`the individuals most knowledgeable, about any of the technical documents that TikTok produced on
`
`March 1, 2021. (
`
`). Notably, many of these documents are
`
`,
`
`suggesting that the individuals most knowledgeable about them
`
`. (RDF Dec.,
`
`¶ 18, Ex. 16). 10Tales requested the identity of the custodians of these documents, but was stonewalled
`
`with an incomprehensible response (excerpted in part below), showing only
`
`
`
`
`
`
`
`TikTok’s designated representative could not
`
` based on the chart
`
`above.
`
` TikTok has not identified any relevant
`
`information in TikTok’s office in Mountain View, California that TikTok would use to defend against
`
`5
`
`

`

`Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 10 of 20
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`
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`10Tales’ infringement claims. Instead, TikTok’s Motion relies solely on the Declaration of Ms. Nicola
`
`Raghavan (a non-technical employee) purporting to identify potential party and non-party witnesses
`
`in the NDCA. (Raghavan Dec., ¶¶ 14-18). However,
`
`
`
` revealed
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`significant problems with
`
` Declaration, both in
`
`lack of knowledge of where certain witnesses
`
`are located, and with
`
` inability to identify any specific potential non-party witnesses. These
`
`problems diminish the value of her already limited declaration.
`
`9.
`
`For example, Ms. Raghavan’s Declaration claimed TikTok engineers
`
`
`
`
`
`
`
`
`
`
`
` However,
`
` subsequently admitted that
`
` does
`
`not know how many people are involved in the
`
`
`
` (
`
`
`
`.
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`10.
`
`In contrast to Ms. Raghavan’s declaration,
`
`(a witness with more technical
`
`knowledge) provided the reality:
`
`
`
`,
`
`).
`
`11.
`
`
`
`
`
`
`
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`8 Using a document TikTok prepared,
`
` did not ask the
`
`
`, 74:1-17).
`(
`identified a total of
`72:15-73:5).
`
`
` However,
`
`
`
` (RDF Dec., Ex. 5). At best, TikTok
` employees in the NDCA who might have relevant information. (
`
`
` was able to identify
`
`
` (
`
`6
`
`

`

`Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 11 of 20
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`(
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` TikTok has only identified
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` members of this team:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
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`12. When asked to identify the individuals having knowledge of the revenues that TikTok
`
`generates in conjunction with the use of the TikTok app in the United States—an issue that
`
`will be highly relevant to damages—TikTok’s designated representative identified
`
`
`
`individuals, one of whom—
`
`—is located
`
`in Austin, Texas,
`
`
`
`. (
`
` 31:19-34:4). TikTok’s documents also suggest that
`
` (RDF Dec., Ex. 4).
`
`
`
`
`
`
`
`is also in TikTok’s Austin, Texas office. Id.
`
`13. With regard to non-party witnesses, Ms. Raghavan’s declaration identified: (a) Google
`
`and Apple, because users can download the TikTok app through each company’s stores; (b) social
`
`media platforms such as Facebook, Instagram, Twitter, and Google; (c) TikTok’s “
`
`
`
` content creators on the TikTok app”; and (d) “[
`
` advertisers ….”
`
`
`
`14.
`
`However,
`
`
`
` was unable to support the statements made in
`
` declaration.
`
` could not identify any potential witness at Google or Apple, and admitted
`
`that she does not know whether Google or Apple ever received source code for the TikTok app or
`
`7
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`

`

`Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 12 of 20
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`
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`information regarding the
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`.9
`
`
`
`
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`15.
`
`
`
` does not know whether any of the social media
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`platforms received the details
`
`
`
` (
`
` 96:21-97:9).
`
` made similar admissions with regard to
`
`TikTok’s “
`
` content creators,” and with regard to TikTok’s
`
` advertisers. (Id.,
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`98:10-23; 99:24-100:14).
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`16.
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`As such, Ms. Raghavan’s Declaration fails to identify any potential non-party
`
`witnesses with relevant testimony.10, 11
`
`III. ARGUMENT
`
`A.
`
`Legal Standard Governing Transfer Under 28 U.S.C. § 1404(a)
`
`“[P]laintiffs are ordinarily allowed to select whatever forum they consider most advantageous,”
`
`a right the Supreme Court has termed “plaintiff’s venue privilege.” Atl. Marine Constr. Co. v. U.S.
`
`Dist. Ct., 571 U.S. 49, 63 (2013). To disturb this right, TikTok bears “a significant burden … to show
`
`good cause” to support its motion to transfer. In re Volkswagen of Am. Inc., 545 F.3d 304, 314 n.10
`
`(5th Cir. 2008) (“Volkswagen II”) (cert. denied); see also Texas Data Co., L.L.C. v. Target Brands,
`
`
`9 Considering TikTok’s representation that they
`
`
`
`, it seems very doubtful that TikTok would have ever disclosed such source
`code to any individuals at Google, Apple, or Facebook, or to any other third-party witnesses located in
`the NDCA.
`10 TikTok’s invalidity contentions reveal a potential non-party witness in Plano, Texas. TikTok’s
`invalidity contentions cite to a published patent application that matured into U.S. Patent No. 8,813,125
`(“the ’125 patent”). (RDF Dec., Ex. 6). Richard Reisman, the inventor named in the ’125 patent,
`assigned the patent to Convergent Media Solutions LLC in Plano, Texas. (Id.). 10Tales respectfully
`requests that the Court take judicial notice of the ’125 patent.
`11 So far, none of the parties’ experts are located in the NDCA. To date, TikTok has identified one
`expert, Dr. Alan Bovik, who works and teaches in Austin, Texas. 10Tales’ experts are located in
`Baltimore, Maryland, and Austin, Texas.
`
`8
`
`

`

`Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 13 of 20
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`
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`Inc., 771 F. Supp. 2d 630, 638 (E.D. Tex. Jan. 12, 2011) (“the Court ... recognizes the significance of
`
`the burden and does not take it lightly”). They must “satisfy the statutory requirements and clearly
`
`demonstrate that a transfer is ‘[f]or the convenience of parties and witnesses, in the interest of justice.’”
`
`Volkswagen II, 545 F.3d at 315 (emphasis added).
`
`The determination of whether TikTok has met its burden involves consideration of various
`
`private and public interest factors. Id. The Federal Circuit has held that the eight private and public
`
`interest factors are not exhaustive or exclusive, and no one factor “can be said to be of dispositive
`
`weight.” Id. “A plaintiff’s choice of forum is given ‘some’—significant but non-determinative—
`
`weight.” Weber v. PACT XPP Techs., AG, 811 F.3d 758, 767 (5th Cir. 2016) (quoting Atl. Marine,
`
`571 U.S. at 62 n.6 (2013)).
`
`Each of the aforementioned factors establish that TikTok’s Motion should be denied because
`
`TikTok has not met its heavy burden of showing that transfer is warranted.
`
`1.
`
`The Private Interest Factors Weigh Against Transfer
`
`a.
`
`The Relative Ease of Access to Sources of Proof Weighs Against
`Transfer
`
`The location of TikTok’s records does not support transfer. TikTok’s source code and
`
`technical documentation regarding the accused TikTok recommendation system are both
`
`
`
`
`
`not the NDCA. (
`
`
`
`. TikTok admits that their
`
`employees can
`
`
`
`.12
`
`. Moreover, the
`
`location where TikTok intends to make the source code available for inspection
`
`
`
`
`12 While Ms. Raghavan indicated in her declaration that TikTok’s employees in Mountain View stored
`their
`
` prior to the pandemic,
` subsequently admitted that
` did not know how
`they have been storing
`since the pandemic started (and therefore since this suit was filed), and
`cast further doubt on the statements in her declaration by admitting that
`
` (
` 47:11-13; 64:18-66:9). In any
`event, TikTok has produced no evidence to suggest that their Mountain View employees’ notes have
`any relevance to the issues in this lawsuit.
`
`9
`
`

`

`Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 14 of 20
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`
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`13 not the NDCA. (RDF Dec., Ex. 2). TikTok produced no evidence suggesting
`
`that any relevant sources of proof are kept in the NDCA.
`
`Ultimately, TikTok fails to provide any reason why transferring
`
` from
`
`China to this District would be any more burdensome than transferring
`
` to the NDCA,
`
`and it is readily apparent that TikTok does not intend to (or cannot) produce this evidence in the NDCA.
`
`Because “[t]he transmission of documents by electronic means is now instantaneous, inexpensive, and
`
`ubiquitous,” the distinction between courts—with respect to documentary evidence—is largely
`
`negligible. Doe v. Kanakuk Ministries, Civ. No. 3:11-cv-0524-G, 2012 WL 715980, at *3 (N.D. Tex.
`
`Mar. 5, 2012).
`
`With regard to party witnesses, TikTok has failed to carry its burden of showing that the NDCA
`
`is a more convenient forum. Mr. Russek, the inventor of the ’030 patent, resides in Pennsylvania, and
`
`as such, this District is far more convenient than the NDCA; Mr. Russek would have to travel an
`
`additional 1,300 miles each way, almost twice as far, to travel to the NDCA. See USC IP P’ship, L.P.
`
`v. Facebook, Inc., Civ. No. 6:20-cv-00555-ADA, 2021 WL 860007, at *4 (W.D. Tex. Mar. 8, 2021)
`
`(holding “Fifth Circuit precedent…appl[ies] the 100–mile rule”). TikTok’s employees having the
`
`most knowledge of how TikTok
`
` in the United States
`
`are located in
`
` Pursuant to the 100-mile rule, the NDCA
`
`would be more inconvenient for those witnesses as well by requiring an additional 1,300 miles of travel
`
`each way. With regard to the revenues attributable to the accused recommendation system,
`
` of
`
`TikTok’s employees located in
`
`are likely witnesses
`
`at trial. The other
`
` individuals that TikTok has identified as being most knowledgeable on this
`
`
`13 TikTok testified that it is
`order to
`
`
`
` source code to its Transparency Center in
`
`
`10
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`

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`Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 15 of 20
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`
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`subject matter are located in
`
`.14 Again, the distance for these people to
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`travel to NDCA would be an additional 1,300 miles each way. As discussed above, TikTok failed to
`
`identify the names of the individuals who were the custodians of the limited technical documents that
`
`were produced, indicating that they are, presumably, not in NDCA.
`
`Thus, this factor weighs against transfer.
`
`b.
`
`The Availability of Compulsory Process to Secure the Attendance
`of Witnesses Weighs Against Transfer
`
`While the location of party witnesses may factor into transfer analysis, it is the location of key,
`
`non-party witnesses that should dominate the analysis. Frederick v. Advanced Fin. Sols., Inc., 558
`
`F.Supp.2d 699, 704 (E.D. Tex. Sept. 26, 2007); see also Texas Data, 771 F.Supp.2d at 641 (noting that
`
`“[t]his factor will weigh more heavily in favor of transfer when more non-party witnesses reside within
`
`the transferee venue”). The availability and convenience of party witnesses is generally insignificant
`
`when a transfer based on this factor would only shift the inconvenience from movant to non-movant.
`
`Frederick, 558 F.Supp.2d at 704. Additionally, this factor is also based on the willingness of non-
`
`party witnesses to voluntarily appear for trial. See Texas Data Co., 771 F.Supp.2d at 642 n.11. Thus,
`
`the defendant bears the burden of identifying unwilling non-party witnesses that would benefit from
`
`the transfer. Id. at 643 n.14.
`
`
`14 TikTok identified
` who might have
` employee in its Mountain View office,
`
`relevant information regarding the
`
`
`only began working for TikTok in late June 2020 (years after the product was
`developed in China, only a handful of months before Ms. Raghavan wrote her declaration, and only a
`few months before 10Tales filed its Complaint). There is no declaration of
` concerning his
`knowledge. Regardless, it likely that TikTok would utilize an expert witness to explain the technical
`aspects of its recommendation system to the jury. Even if TikTok did intend to have
` or
`nameless other software engineers located in Mountain View testify at trial, this would, at most, render
`the party witnesses factor neutral.
`
`11
`
`

`

`Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 16 of 20
`
`
`
`Here, TikTok provides only a declaration by Ms. Raghavan (a non-technical human relations
`
`employee) claiming a series of alleged non-party witnesses15 having a presence in the NDCA,
`
`including Apple, Google, Facebook, Instagram, and Twitter. However,
`
` deposition
`
`testimony establishes that
`
` has no basis for
`
`
`
`.16 Thus, all TikTok has done is identify companies based in the NDCA, without regard for
`
`whether any one of them has any relevant evidence, much less whether they would be unwilling to
`
`appear. See Moskowitz Family LLC. v. Globus Medical, Inc., Civ. No. 6:19-cv-00672-ADA, 2020 WL
`
`4577710, at *4 (W.D. Tex. July 2, 2020) (“[T]he Court also requires more than a statement that third-
`
`party witnesses may exist to merit consideration.”). That TikTok may be downloaded from Google or
`
`Apple is also unconnected to 10Tales’ patented technology, and does not establish that either are
`
`witnesses with relevant testimony. Similarly, the social media companies named by TikTok lack
`
`knowledge of the accused TikTok features, and as such, do not have relevant evidence.
`
`
`
`).
`
`Since TikTok failed to identify any non-party witnesses—either willing or unwilling—
`
`expected to participate in this case, this factor weighs against transfer to NDCA.
`
`c.
`
`The Cost of Attendance for Willing Witnesses Weighs Against
`Transfer
`
`In addressing the cost of attendance of willing witnesses, all parties and witnesses must be
`
`considered in the analysis of this factor. See In re Volkswagen AG, 371 F.3d 201, 204 (Fed. Cir. 2004).
`
`
`15 The Motion references ByteDance Inc.
` as possible third-party witnesses, but
`ByteDance Inc. is now a Defendant in this action, making these possible witnesses party witnesses.
`16
` admitted that
` does not know: (a) any person at those companies who might be
`called as a witness; (b) whether any person at those companies have had access to TikTok’s
`
`; and (c) whether those companies have had access to TikTok’s
` relating
`to the accused TikTok recommendation system. (
`
`).
`
`12
`
`

`

`Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 17 of 20
`
`
`
`The convenience of non-party witnesses is usually given greater weight than that of party witnesses.17
`
`Stragent LLC v. Audi AG, Civ. No. 6:10-cv-227-LED-JDL, 2011 WL 2912907, at *7 (E.D. Tex. July
`
`18, 2011).
`
`TikTok has not provided this Court with any evidence suggesting that the cost of attending trial
`
`in the NDCA is less expensive than it would be in this District. This is unsurprising, as it would be
`
`considerably more expensive to fly witnesses to NDCA and conduct a trial in NDCA. Thus, this factor
`
`weighs against transfer.
`
`2.
`
`The Public Interest Factors Weigh Against Transfer
`
`a.
`
`Court Congestion Weighs Against Transfer
`
`In a § 1404(a) analysis, the Court may consider how quickly a case will come to trial and be
`
`resolved. In re Genentech, Inc., 566 F.3d 1338, 1347 (Fed. Cir. 2009).
`
`TikTok speculates that the time to trial may be shorter in the NDCA. See Motion at 19. There
`
`is no credible basis for such speculation, and TikTok fails to provide the Court with any evidence
`
`supporting same. As this Court observed last year, the “time-to-trial statistics in this Court” are faster
`
`than the NDCA. Hammond Dev. Int’l, Inc. v. Google LLC, 1:20-cv-00342-ADA, 2020 WL 3452987,
`
`at *5 (W.D. Tex. June 24, 2020). Moreover, this case is already scheduled for trial in March 2022—
`
`just 10 months from now—and any transfer at this point would surely jeopardize that date. See Kuster
`
`v. W. Digital Techs., Inc., Civ. No. 6:20-cv-00563-ADA, 2021 WL 466147, at *8 (W.D. Tex. Feb. 9,
`
`2021) (“statistics do not account for the lost time that would additionally accrue by transferring this
`
`case”). Thus, this factor weighs against transfer.
`
`
`17 “The convenience of the witnesses who are employees of the party seeking transfer is entitled to
`less weight because that party will be able to compel their testimony at trial.” Comcast Cable, 2012
`WL 6625359, at *4 (emphasis added); see also In re Barnes & Noble, Inc., 743 F.3d 1381, 1382-83
`(Fed. Cir. 2014) (affirming denial of transfer that faulted the defendant for failing to address how many
`of its employees would be unavailable to testify in the current forum or why deposition testimony
`would not suffice).
`
`13
`
`

`

`Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 18 of 20
`
`
`
`b.
`
`The NDCA Has No Greater Local Interest
`
`TikTok argues that the NDCA has a greater interest in this case than this District because
`
`TikTok has
`
`”18
`
`See Motion at 19. But, tellingly, this claim is unsupported by details and TikTok is silent on how much
`
`of the
`
` is in the
`
`19
`
`(
`
`
`
`). The evidence that is available indicates that the relevant portions
`
`of the TikTok app were
`
`. Likewise, even if the infringing aspects
`
`of the TikTok app and system are not developed in the District, it does not preclude TikTok’s
`
`employees in this District from having relevant testimony and an interest in this case. Tellingly, none
`
`of the witnesses TikTok designated during venue discovery work in NDCA. TikTok designated
`
`representatives who work out of TikTok’s
`
` offices.
`
`TikTok cannot deny that they maintain a physical presence in this District. Indeed, TikTok
`
`admits that their Austin, Texas office
`
` (
`
`
`
`) TikTok’s
`
`
`
`
`
`
`
`
`
`Where, as here, the infringing product is distributed nationally, the mere fact that a defendant
`
`has a larger presence in another state does not give that state a greater interest. Indeed, TikTok has
`
`over 60,000 employees around the world; the fact that they have
`
` in the NDCA working with a
`
` does not give the NDCA a local interest.20 Instead, where an
`
`
`18 Courts have rejected arguments that a defendant’s mere presence in a proposed transferee district
`creates a strong local interest, “as they amount to arguments that the Court should transfer the case
`because jurors in the transferee district will be more sympathetic to a particular party.” Geotag, Inc. v.
`Ontargetjobs, Inc., Civ. No. 2:13-cv-0064-JRG, 2014 WL 12776293, at *3 (E.D. Tex. Mar. 7, 2014).
`19 Collectively, TikTok has over 60,000 employees world-wide.
`
`20 At best, TikTok identified a total of
` employees in the NDCA who might have relevant
`information. (
` 72:15-73:5).
`
`14
`
`

`

`Case 6:20-cv-00810-ADA Document 89 Filed 05/24/21 Page 19 of 20
`
`
`
`accused product is distributed and accessible nationally, the local interest in having localized interests
`
`decided at home is generally not weighed either for or against transfer. See In re Hoffman-La Roche,
`
`Inc., 587 F.3d 1333, 1338 (Fed. Cir. 2009) (“the sale of an accused product offered nationwide does
`
`not give rise to a substantial interest in any single venue”). Thus, the presence of infringing users
`
`within the NDCA does not establish that the NDCA has a greater interest in the case. At best, this
`
`factor is neutral.
`
`c.
`
`The Remaining Factors Do Not Favor Transfer
`
`TikTok admits that the remaining factors—the familiarity of the forum with the governing law
`
`and the avoidance of conflicts of law—are all neutral. See Motion at 20. Accordingly, none of these
`
`factors weigh in favor of transfer.
`
`IV. CONCLUSION
`
`TikTok has fallen well short of meeting their heavy burden to show that transfer under
`
`28 U.S.C. § 1404(a) is clearly appropriate. Accordingly, 10Tales respectfully suggests th