Case 6:22-cv-00031-ADA Document 76 Filed 11/29/22 Page 1 of 30
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`FLYPSI, INC., (D/B/A FLYP),
` Plaintiff
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`-vs-
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`GOOGLE LLC,
` Defendant
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`W-22-CV-00031-ADA
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`ORDER DENYING DEFENDANT’S MOTION TO TRANSFER
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`Before the Court is Defendant Google LLC’s (“Google’s”) Motion to Transfer Venue to
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`the Northern District of California. ECF No. 42. Plaintiff Flypsi, Inc. (“Flyp”) opposes the motion.
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`ECF No. 64. Google filed a reply to further support its motion. ECF No. 68. After careful
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`consideration of the parties’ briefs and the applicable law, the Court DENIES Google’s motion to
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`transfer venue to the Northern District of California.
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`I.
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`FACTUAL BACKGROUND
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`
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`In its complaint, Flyp claims Google infringed on U.S. Patent Nos. 9,667,770 (“the ’770
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`Patent”), 10,051,105 (“the ’105 Patent”), 10,334,094 (“the ’094 Patent”), 11,012,554 (“the ’554
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`Patent”), and 11,218,585 (“the ’585 Patent”) (collectively, the “Asserted Patents”), which relate to
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`a telephone network system and method. ECF No. 50 ¶¶ 24−28. Flyp, the owner of the Asserted
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`Patents, is a corporation organized under the laws of the state of Delaware with its principal place
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`of business in Bedford, Texas. Id. ¶ 1. Google is a limited liability company organized under the
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`laws of the state of Delaware. Id. ¶ 6. Google’s headquarters are located in Mountain View,
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`California. ECF No. 42 at 3. Google is registered to do business in the State of Texas. ECF No. 50
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`¶ 2. According to Flyp, Google sells products and methods that infringe the Asserted Patents,
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`1
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`Case 6:22-cv-00031-ADA Document 76 Filed 11/29/22 Page 2 of 30
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`including Google’s app-based telephone feature known as Google Voice. Id. ¶¶ 30, 42, 54, 69, 83.
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`The Court will refer to these products collectively as the “Accused Products.”
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`In addition to this case, Flyp filed one other case in this District alleging infringement of
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`the Asserted Patents. Flypsi, Inc. v. Dialpad, Inc., No. 6:21-cv-00642-ADA (W.D. Tex. June 21,
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`2021) (the “Dialpad Litigation”). In the Dialpad Litigation, this Court handled the proceedings
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`through the Markman hearing. No. 6:21-cv-00642-ADA (W.D. Tex. Apr. 14, 2022), ECF No. 53.
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`The case was subsequently dismissed after the parties filed a joint motion and stipulation of
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`dismissal. No. 6:21-cv-00642-ADA (W.D. Tex. Sept. 14, 2022), ECF No. 75.
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`
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`After responding to Flyp’s complaint, Google filed the instant motion to transfer. ECF No.
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`42. Google does not argue that the Western District of Texas (“WDTX”) is an improper venue for
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`this case; instead, it argues that the Northern District of California (“NDCA”) is a more convenient
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`forum, pointing to the location of potential witnesses, the location of relevant records, and the local
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`interest in California. Id. at 1. Flyp contends that the case should remain in the WDTX, pointing
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`to, among other factors, Flyp’s witnesses and evidence in Texas, Google’s relevant witnesses in
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`the WDTX, and this Court’s experience with the Asserted Patents. ECF No. 64 at 1, 12.
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`II.
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`LEGAL STANDARD
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`
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`In patent cases, motions to transfer under 28 U.S.C. § 1404(a) are governed by the law of
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`the regional circuit—here, the Fifth Circuit. In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed.
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`Cir. 2008). 28 U.S.C. § 1404(a) provides in part that “[f]or the convenience of parties and
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`witnesses, . . . a district court may transfer any civil action to any other district or division where
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`it might have been brought . . . ” Id. “Section 1404(a) is intended to place discretion in the district
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`court to adjudicate motions for transfer according to an ‘individualized, case-by-case consideration
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`of convenience and fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting
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`Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
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`2
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`Case 6:22-cv-00031-ADA Document 76 Filed 11/29/22 Page 3 of 30
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`The preliminary question under § 1404(a) is whether a civil action “‘might have been
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`brought’ in the destination venue.” In re Volkswagen, Inc., 545 F.3d 304, 312 (5th Cir. 2008)
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`[hereinafter Volkswagen II]. If the destination venue would have been a proper venue, then “[t]he
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`determination of ‘convenience’ turns on a number of public and private interest factors, none of
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`which can be said to be of dispositive weight.” Action Indus., Inc. v. U.S. Fid. & Guar. Co., 358
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`F.3d 337, 340 (5th Cir. 2004) (footnote omitted). The private interest factors include: “(1) the
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`relative ease of access to sources of proof; (2) the availability of compulsory process to secure the
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`attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical
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`problems that make trial of a case easy, expeditious and inexpensive.” In re Volkswagen AG, 371
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`F.3d 201, 203 (5th Cir. 2004) [hereinafter Volkswagen I] (citing Piper Aircraft Co. v. Reyno, 454
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`U.S. 235, 241 n.6 (1982)). The public factors include: “(1) the administrative difficulties flowing
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`from court congestion; (2) the local interest in having localized interests decided at home; (3) the
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`familiarity of the forum with the law that will govern the case; and (4) the avoidance of
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`unnecessary problems of conflict of laws of the application of foreign law.” Id. Courts evaluate
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`these factors based on the situation which existed at the time of filing, rather than relying on
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`hindsight knowledge of the defendant’s forum preference. Hoffman v. Blaski, 363 U.S. 335, 343
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`(1960).
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`The moving party has the burden to prove that a case should be transferred for convenience.
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`Volkswagen II, 545 F.3d at 314. The burden is not simply that the alternative venue is more
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`convenient, but that it is clearly more convenient. Id. at 314–15. While “clearly more convenient”
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`is not the same as the “clear and convincing” standard, the moving party must still show more than
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`a mere preponderance. Quest NetTech Corp. v. Apple, Inc., No. 2:19-cv-118, 2019 WL 6344267,
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`at *7 (E.D. Tex. Nov. 27, 2019). Yet, the Federal Circuit has clarified that, for a court to hold that
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`3
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`Case 6:22-cv-00031-ADA Document 76 Filed 11/29/22 Page 4 of 30
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`a factor favors transfer, the movant need not show an individual factor clearly favors transfer. In
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`re Apple Inc., 979 F.3d 1332, 1340 (Fed. Cir. 2020).
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`III. DISCUSSION
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`The threshold determination in the § 1404(a) analysis is whether this case could initially
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`have been brought in the destination venue—the NDCA. Neither party disputes that venue could
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`be proper in the NDCA. ECF No. 42 at 5; ECF No. 64. Google operates a regular and established
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`place of business in the NDCA. ECF No. 42 at 5. This Court therefore finds that venue would have
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`been proper in the NDCA had the suit originally been filed there. Thus, the Court now analyzes
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`the private and public interest factors to determine if the NDCA is a clearly more convenient forum
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`than the WDTX.
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` The Private Interest Factors
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`
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`The Cost of Attendance and Convenience for Willing Witnesses
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`The most important factor in the transfer analysis is the convenience of the witnesses. In
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`re Genentech, Inc., 566 F.3d 1388, 1342 (Fed. Cir. 2009). According to Fifth Circuit law, if the
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`distance between a current venue and a proposed venue is more than 100 miles, the inconvenience
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`to witnesses increases in direct relationship to the additional distance they must travel if the matter
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`is transferred. Volkswagen II, 545 F.3d at 317. But it is unclear when the 100-mile rule applies, as
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`the Federal Circuit has stated that courts should not apply the rule “rigidly” in cases where
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`witnesses would be required to travel a significant distance no matter what venue they testify in.
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`In re Apple, 979 F.3d at 1342 (discussing witnesses traveling from New York) (citing Volkswagen
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`II, 545 F.3d at 317). “[T]he inquiry should focus on the cost and inconvenience imposed on the
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`witnesses by requiring them to travel to a distant forum and to be away from their homes and work
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`for an extended period of time.” In re Google, LLC, No. 2021-170, 2021 WL 4427899, at *4 (Fed.
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`Cir. Sept. 27, 2021). According to the Federal Circuit, time is a more important metric than
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`4
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`Case 6:22-cv-00031-ADA Document 76 Filed 11/29/22 Page 5 of 30
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`distance. Id. However, the Federal Circuit has also held that when willing witnesses will have to
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`travel a significant distance to either forum, the slight inconvenience of one forum in comparison
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`to the other should not weigh heavily on the outcome of this factor. In re Apple, 979 F.3d at 1342.
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`When analyzing this factor, the Court should consider all potential witnesses. Alacritech Inc. v.
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`CenturyLink, Inc., No. 2:16-CV-00693, 2017 WL 4155236, at *5 (E.D. Tex. Sept. 19, 2017).
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`According to Google, “nearly all” of the relevant witnesses are based in the NDCA. ECF
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`No. 42 at 7. Google also claims that the only other relevant party witnesses are located in Seattle,
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`Washington and Washington, D.C. Id. at 3. Flyp claims that there are also relevant Google
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`employees in the WDTX. ECF No. 64 at 10. Flyp also claims that its witnesses are located in
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`Bedford, Texas and Dallas, Texas. Id. at 9. Each group of witnesses will be discussed further
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`below.
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`1. Google’s Employees in the NDCA
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`According to Google, most of its employees knowledgeable of the Accused Products are
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`located in the NDCA. ECF No. 42 at 7. Google has identified the following potential willing
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`witnesses in the NDCA that can testify to the technical aspects of the Accused Products: (1)
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`
`
`, a project manager involved in the development of the frontend user interface of Google
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`Voice, (2)
`
`, a software engineer involved in the design of Google Voice, (3)
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`
`
`,
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` involved in all engineering efforts for
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`Google Voice, (4)
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`, an engineering manager involved in the backend operation of
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`Google Voice, and (5)
`
`, an engineering manager involved in the operation of Google
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`Voice via mobile device applications and on the web platform. ECF No. 42-2 ¶¶ 4, 7. Google also
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`suggests that there are witnesses in the NDCA with knowledge of the marketing and sales aspects
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`of the Accused Products, although Google does not specifically identify these witnesses or explain
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`5
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`Case 6:22-cv-00031-ADA Document 76 Filed 11/29/22 Page 6 of 30
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`why they might testify at trial. ECF No. 42 at 3; ECF No. 42-1 ¶ 7. Because all of these relevant
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`Google employees are based in the NDCA, Google argues that the NDCA is a more convenient
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`forum for these potential witnesses. ECF No. 42 at 8. Flyp does not seem to dispute that the NDCA
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`would be a more convenient forum for these employees.
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`The Court finds that the identified Google witnesses would be relevant at trial. As Google’s
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`declarant,
`
`, has stated, the five identified technical employees have relevant
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`knowledge of the development, design, and operation of Google Voice. ECF No. 42-2 ¶¶ 4, 7.
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`Flyp generally argues that Mr.
`
`’s declaration is not credible because Mr.
`
` only focuses
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`on facts as of January 2022. ECF No. 64 at 7. But Flyp has not disputed the relevance of these
`
`technical witnesses. Thus, the Court sees no reason to disagree with Mr.
`
`’s declaration that
`
`Messrs.
`
`,
`
`,
`
`,
`
`, and
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` are relevant party witnesses. The Court does not
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`give great weight to the other NDCA-based Google employees with knowledge of the marketing
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`and sales of Google Voice because Google did not identify these employees with any specificity
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`or describe why they would be relevant at trial. Because Google specifically identified two
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`marketing employees based outside the NDCA, the Court believes it is more likely that Google
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`would call these two witnesses to testify at trial regarding marketing and sales.
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`The Court agrees with Google that the NDCA would be a more convenient forum than the
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`WDTX for Google’s employees based in the NDCA. The relevant consideration here is “the cost
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`and inconvenience imposed on the witnesses by requiring them to travel to a distant forum and to
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`be away from their homes and work for an extended period of time.” In re Google, LLC, 2021 WL
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`4427899, at *4. Google’s NDCA-based employees would be more inconvenienced if they were
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`called to testify in the WDTX than in the NDCA. Thus, the Court finds the presence of these
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`Google employees in the NDCA weighs in favor of transfer.
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`6
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`Case 6:22-cv-00031-ADA Document 76 Filed 11/29/22 Page 7 of 30
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`2. Google’s Employee in Seattle, Washington and Washington, D.C.
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`Google identifies two marketing employees outside of both the NDCA and the WDTX: (1)
`
`,
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`the
`
`, and (2)
`
`. ECF No. 42-1 ¶¶ 5, 7, 9. Mr.
`
`,
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`
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`is based in Seattle, Washington and is responsible for marketing and promotion of Google Voice.
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`Id. ¶ 7. Mr.
`
` is based in Washington, D.C. and is responsible for the “go-to-market”
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`strategy of Google Voice. Id. ¶ 9. Google argues that Mr.
`
`’s presence in Seattle weighs in
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`favor of transfer because Seattle is closer to the NDCA than the WDTX. ECF No. 42 at 7−8.
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`Google does not appear to argue that Mr.
`
`’s presence in Washington, D.C. impacts the
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`analysis of this factor. In response, Flyp argues that Google’s second declarant, William Randall,
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`who identified these witnesses, is not credible. ECF No. 64 at 6. Flyp argues that Mr. Randall
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`focused only on the facts as they existed as of January 2022. Id. Flyp argues that Mr. Randall
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`should have considered what sales and marketing witnesses would have been relevant as far back
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`as May 2017, when the ’770 Patent was issued and the hypothetical negotiation under Georgia-
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`Pacific would have taken place. Id. at 7. Flyp complains that Mr.
`
` and Mr.
`
`relatively new employees to Google—Mr.
`
` joined Google in 2021 and Mr.
`
` are
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`
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`joined in 2020. Id.; ECF No. 42-1 ¶ 7; ECF No. 64-3 at 86.
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`The Court agrees with Flyp that employees with knowledge of Google Voice’s marketing
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`and financials at the time of the hypothetical negotiation under Georgia-Pacific would be relevant.
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`However, the Court does not fully discredit Mr. Randall’s declaration for this reason. Both Google
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`employees that Mr. Randall identifies are currently involved in the marketing and promotion of
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`the Accused Products and may be relevant in determining the damages applicable in this case.
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`Thus, the Court will still consider these Google employees in its analysis of this factor.
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`7
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`Case 6:22-cv-00031-ADA Document 76 Filed 11/29/22 Page 8 of 30
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`The Court finds that Mr.
`
`’s presence in Seattle weighs slightly in favor of transfer.
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`The relevant consideration here is “the cost and inconvenience imposed on the witnesses by
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`requiring them to travel to a distant forum and to be away from their homes and work for an
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`extended period of time.” In re Google, LLC, 2021 WL 4427899, at *4. While the parties have not
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`provided any evidence regarding travel between Seattle and the two forums, the Court assumes
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`that the cost and inconvenience to Mr.
`
` to travel from Seattle to the NDCA would be at
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`least slightly less than the cost and inconvenience to travel from Seattle to Waco. Thus, Mr.
`
`’s presence in Seattle weighs slightly in favor of transfer. The Court also finds that Mr.
`
`’s presence in Washington, D.C. does not affect the outcome of this factor. Regardless
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`of whether trial takes place in the NDCA or the WDTX, Mr.
`
` will have to travel a
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`significant distance and will be away from his work and home for an extended period of time.
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`3. Google’s Employees in the WDTX
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`Google admits that the following employees are located in the WDTX: (1)
`
`an operations engineer for the Google Telephony Platform (“GTP”) and (2)
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`,
`
`, a
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`software engineer for GTP. ECF No. 42-2 ¶¶ 9−10. Google emphasizes that these witnesses work
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`with GTP, and
`
`. Id.
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`¶ 9. Flyp argues that Google’s emphasis on the division between Google Voice and GTP is
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`misplaced. ECF No. 64 at 3. Flyp claims that the division between Google Voice and GTP is
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`“purely administrative.” Id. Flyp points out that the
`
`
`
`. Id.; ECF No. 64-3 at 52. Flyp also points to deposition testimony from Google’s
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`corporate witness, Mr.
`
`, which explains that
`
`
`
`. ECF No. 64 at 4; ECF No. 64-3 at 57. Lastly, Flyp points to Google
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`technical documents that suggest that
`
`, which
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`8
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`

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`Case 6:22-cv-00031-ADA Document 76 Filed 11/29/22 Page 9 of 30
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`is a functionality of the Accused Products that Flyp alleges infringe the Asserted Patents. ECF No.
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`64 at 4; ECF No. 64-16; ECF No. 64-19 (“
`
`
`
`.”). Flyp argues that
`
`because of the close connection between Google Voice and GTP, Google employees within the
`
`GTP team may be relevant at trial. ECF No. 64 at 4. Flyp argues that Mr.
`
` may have relevant
`
`“
`
` may have relevant “
`
`,” and Mr.
`
`
`
`
`
`.” Id. In response, Google argues that Flyp has failed to show how Messrs.
`
` and
`
` are more relevant than the other employees identified by Google. ECF No. 68 at 3.
`
`The Court finds that Messrs.
`
` and
`
` may be relevant witnesses at trial and
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`should be considered in the analysis of this factor. The Asserted Patents here relate to “setting up
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`and connecting telephone calls, and delivering information related to such telephone calls using
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`an Internet Protocol (IP) or other data channel.” ’770 Patent at 1:15−18. Google has explained that
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`the GTP team is responsible for “
`
`
`
`
`
`.” ECF No. 42-2 ¶ 9. Thus, Google’s GTP team seems crucial to determining whether Google
`
`Voice,
`
`, infringe the
`
`Asserted Patents. Google has only identified one GTP employee in the NDCA—Mr.
`
`. ECF
`
`No. 64-3 at 52. Mr.
`
` is assigned to both the Google Voice and GTP teams. Id. While the
`
`Court agrees that Mr.
`
` likely has knowledge relevant to this case, Messrs.
`
` and
`
` likely also have knowledge specific to their engineering roles that might be relevant at
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`trial. The Court agrees with Flyp that Mr.
`
` likely has relevant knowledge regarding call
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`9
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`

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`Case 6:22-cv-00031-ADA Document 76 Filed 11/29/22 Page 10 of 30
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`routing. The Court also agrees with Flyp that Mr.
`
` likely has relevant knowledge regarding
`
`, which may be important to
`
`determining damages in this case.
`
`Flyp also points to two other Google employees in the WDTX who may have relevant
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`knowledge. First, Flyp points to
`
`, a software engineer that worked on Google Voice
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`from May 2017 to August 2018. ECF No. 64 at 7. Flyp also points to
`
`. ECF No. 64
`
`at 5. Ms.
`
` has knowledge of Google’s sales of its products through
`
`, a third-party
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`company involved in the design, development, marketing, and sale of Google Voice. Id. at 4−5;
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`ECF No. 64-3 at 34. Google argues that Flyp has failed to establish that Mr.
`
` has knowledge
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`relevant to this case. ECF No. 68 at 3. Google also argues that Ms.
`
` is not relevant because
`
`“Google established that
`
` (WDWA) and
`
` (DDC), not Ms.
`
`,
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`are most knowledgeable about ‘sales and marketing efforts related to Google Voice.’” Id.
`
`The Court agrees with Google that Flyp has failed to show why Mr.
`
` would have
`
`knowledge relevant to this case. Flyp does not allege that Mr.
`
` has any particularly relevant
`
`knowledge. ECF No. 64 at 7, 10. Mr.
`
` worked in the Google Voice for a relatively short
`
`period of time—from May 2017 to August 2018. Id. at 7. While the time period that Mr.
`
`
`
`worked in the Google Voice team falls within the time frame of the alleged infringement, Flyp has
`
`failed to provide any additional information about Mr.
`
`’s work on Google Voice that would
`
`show he has knowledge relevant at trial. Further, Mr.
`
`’s deposition testimony suggests that
`
`any knowledge Mr.
`
` has of Google Voice involves the web front end and “aesthetic pages,”
`
`which are likely not relevant to the Asserted Patents. ECF No. 64-3 at 41. Thus, the Court does
`
`not place great weight on Mr.
`
`’s presence in the WDTX.
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`10
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`Case 6:22-cv-00031-ADA Document 76 Filed 11/29/22 Page 11 of 30
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`However, the Court agrees with Flyp that Ms.
`
`’s presence in the WDTX weighs
`
`against transferring this case to the NDCA. As Google’s corporate witness, Mr.
`
`, indicated,
`
`Ms.
`
` has relevant knowledge about the services
`
` provides to Google. ECF No. 64-
`
`3 at 34−35. Mr.
`
` also indicated that
`
` helps Google sell to some of its customers. Id.
`
`at 34. While Google argues that Ms.
`
` is not relevant because Google’s declarant, Mr.
`
`Randall, has identified other witnesses to testify regarding Google’s sales and marketing, the Court
`
`is not inclined to discredit an identified party witness simply because the party’s declarant chose
`
`to point to other witnesses. Because Ms.
`
` works with third-party companies on the sales and
`
`marketing of Google Voice, she may have unique knowledge that Google’s identified witnesses
`
`do not possess. Google has not provided any reason to suspect that Ms.
`
`’s knowledge is
`
`irrelevant in this case.
`
`The Court finds that the presence of Ms.
`
` and Messrs.
`
` and
`
` weigh
`
`against transferring this case to the NDCA. For these Google employees, the WDTX is a much
`
`more convenient forum than the NDCA. If this case remains in the WDTX, these employees would
`
`only have to take a short drive to Waco to testify at trial. However, if this case is transferred to the
`
`NDCA, these employees would have to travel a significant distance and be away from their homes
`
`and work for an extended period of time. In re Google, LLC, 2021 WL 4427899, at *4. Thus, the
`
`presence of these three Google employees in the WDTX weighs against transfer.
`
`4. Flyp’s Employees
`
`Flyp identifies the following Flyp employees near the WDTX as relevant party witnesses
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`in this case: (1)
`
`, (2)
`
`(4)
`
`, (5)
`
`, (6)
`
`, (7)
`
`, (3)
`
`, and (8)
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`ECF No. 64 at 9; ECF No. 64-1 ¶¶ 1−2, 26−27.
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`,
`
`,
`
`,
`
`,
`
`.
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`Case 6:22-cv-00031-ADA Document 76 Filed 11/29/22 Page 12 of 30
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`,
`
`, and
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` are all engineers at Flyp. ECF No. 64-1 ¶ 27. Flyp
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`also identifies two support personnel, a chief legal officer and a graphics designer, who may have
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`relevant knowledge to this case. ECF No. 64 at 9; ECF No. 64-1 ¶ 28. All of Flyp employees are
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`located in Flyp’s offices in Bedford, Texas and Dallas, Texas. ECF No. 64 at 9. The offices in
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`Bedford and Dallas are within 90 minutes of Waco. Id.; ECF No. 64-1 ¶¶ 40−41.
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`Google argues that the Court should not consider Flyp’s
`
`, engineers, or support staff
`
`in the analysis of this factor because Flyp failed to provide any information regarding their
`
`relevance to the litigation. ECF No. 68 at 3. Google also points out an inconsistency between
`
`Flyp’s declarant’s claim that Mr.
`
` is an engineer at Flyp, ECF No. 64-1 ¶ 27, and Flyp’s
`
`brief, which states that Mr.
`
` is no longer associated with Flyp, ECF No. 64 at 2 n.2. ECF No.
`
`68 at 3 n.2. However, Google admits that Mr.
`
` is a relevant witness near the WDTX. Id. at
`
`2.
`
`Beginning with
`
`, Mr.
`
`, both parties agree that Mr.
`
` is a relevant
`
`party witness. ECF No. 64 at 9; ECF No. 68 at 2. Both parties also seem to agree that the WDTX
`
`is a more convenient forum than the NDCA for Mr.
`
`. ECF No. 64 at 9; ECF No. 68 at 2.
`
`Thus, the Court determines that Mr.
`
`’s presence near the WDTX weighs against transfer
`
`because the WDTX would be a more convenient forum than the NDCA for this witness.
`
`Next, the Court considers Flyp’s other employees. Google argues that
`
`,
`
`engineers, and support personnel are irrelevant to the analysis of this factor because Flyp has not
`
`described what knowledge they possess that would be relevant to this case. ECF No. 68 at 3. To
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`support its argument, Google cites MemoryWeb, LLC v. Samsung Electronics Co., Ltd., No. W-
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`21-CV-00411-ADA, 2022 WL 2195025 (W.D. Tex. June 17, 2022). In MemoryWeb, the Court
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`was not persuaded that all of the prior art witnesses identified by the defendant were relevant to
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`Case 6:22-cv-00031-ADA Document 76 Filed 11/29/22 Page 13 of 30
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`the case. Id. at *4. In particular, the Court determined that the defendant “cherry-pick[ed] witnesses
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`without a reasoned explanation as to why it chose particular individuals outside of their convenient
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`residence in the preferred forum.” Id. These circumstances are not at play here. Flyp is not cherry-
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`picking third-party witnesses based on its desire to remain in the WDTX—Flyp is identifying its
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`own employees that reside near this District. Except for one remote employee located in Hawaii
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`(and discussed below), these are the only employees that Flyp has. While the Court in MemoryWeb
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`had reason to doubt the relevancy of the defendant’s prior art witnesses, the Court here does not
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`have the same reason to doubt the relevancy Flyp’s party witnesses. The Court has reason to
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`believe that Flyp’s party witnesses likely have information relating to Flyp’s patented technology
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`and efforts to commercialize, which may be relevant at trial.
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`Because of the inconsistency between Flyp’s declarant and its briefing, the Court does not
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`consider Mr.
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` under this factor. Based on Flyp’s briefing, it appears that Mr.
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` no longer
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`works for Flyp. Mr.
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` will be considered under the compulsory process factor below. In re
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`HP Inc., No. 2018-149, 2018 WL 4692486, at *3 n.1 (Fed. Cir. Sept. 25, 2018) ( “[W]hen there is
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`no indication that a non-party witness is willing, the witness is presumed to be unwilling and
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`considered under the compulsory process factor.”). Furthermore, the Court acknowledges that it is
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`unlikely that all of the identified Flyp employees will testify at trial, especially considering Flyp
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`has not identified specific knowledge that each employee possesses that would be needed in this
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`case. The Court concludes that the presence of Flyp’s employees near the WDTX weighs against
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`transfer. The WDTX would be a more convenient forum than the NDCA for these employees
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`because they would be able to testify at trial in Waco without traveling a significant distance and
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`without spending a significant amount of time away from their homes and their work.
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`Case 6:22-cv-00031-ADA Document 76 Filed 11/29/22 Page 14 of 30
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`Lastly, the Court considers
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` and
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`. Google identifies these two
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`individuals as Flyp employees in its motion. ECF No 42 at 2. However, Flyp explains that Mr.
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` no longer works at Flyp. ECF No. 64 at 3 n.4; ECF No. 64-1 ¶ 32. Mr.
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` will be
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`considered under the compulsory process factor below. Mr.
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` is still a Flyp employee and
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`works remotely from his home in Hawaii. ECF No. 64 at 3 n.4; ECF No. 64-1 ¶ 33. The Court
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`finds that the presence of Mr.
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` in Hawaii does not impact the analysis of this factor.
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`Regardless of whether this case remains in the WDTX or is transferred to the NDCA, Mr.
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`
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`will have to travel a significant distance and be away from his home for a significant period of
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`time to testify at trial. Thus, Mr.
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` would be equally inconvenienced if he is called to testify in
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`either forum.
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`5. Conclusion
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`The Court finds this factor is neutral. While Google has identified five Google employees
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`in the NDCA and one in Seattle that would find the NDCA a more convenient forum, Flyp has
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`identified three relevant Google employees in the WDTX that would find this Court a more
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`convenient forum. Further, Flyp’s own witnesses are located nearby in Bedford and Dallas, Texas.
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`Thus, key witnesses are located near both forums. Neither forum is more convenient for the party
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`witnesses as a whole.
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`
`
`The Relative Ease of Access to Sources of Proof
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`“In considering the relative ease of access to proof, a court looks to where documentary
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`evidence, such as documents and physical evidence, is stored.” Fintiv Inc. v. Apple Inc., No. 6:18-
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`cv-00372, 2019 WL 4743678, at *2 (W.D. Tex. Sept. 10, 2019). “[T]he question is relative ease
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`of access, not absolute ease of access.” In re Radmax, 720 F.3d 285, 288 (5th Cir. 2013) (emphases
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`in original). “In patent infringement cases, the bulk of the relevant evidence usually comes from
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`the accused infringer. Consequently, the place where the defendant’s documents are kept weighs
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`Case 6:22-cv-00031-ADA Document 76 Filed 11/29/22 Page 15 of 30
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`in favor of transfer to that location.” In re Apple Inc., 979 F.3d at 1340 (citing In re Genentech,
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`566 F.3d at 1345).
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`According to Google, this factor weighs in favor of transfer because the relevant document
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`custodians are located in the NDCA. ECF No. 42 at 6. Further, Google argues that the Accused
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`Products were researched, designed, developed, and tested in the NDCA. Id. Google claims that
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`“certain physical devices” used to test the Accused Products are more accessible in the NDCA. Id.
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`at 7. Google also claims that third-party witnesses residing in the NDCA may possess relevant
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`evidence. Id. at 6−7. Google also points out that the bulk of the evidence in a patent case comes
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`from the accused infringer. ECF No. 68 at 1.
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`
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`In response, Flyp argues that this factor weighs against transfer because all of its evidence
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`is maintained and stored near this Court in Bedford and Dallas. ECF No. 64 at 8. Flyp claims that
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`Google’s generic allegations that its documents are “typically” created and maintained with
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`employees working with those products and services do not show that Google’s documents are
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`actually stored in the NDCA. Id. Flyp complains that Google has failed to identify where its
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`electronic documents are stored. Id. Flyp argues that Google’s electronic documents are stored in
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`data centers around the world. Id. None of these data centers are located in the NDCA. Id. at 8−9.
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`One data center is located near this Court in Midlothian, Texas. Id. at 9. Because Google has failed
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`to identify which data center its relevant electronic documents are located in, Flyp argues that
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`Google has failed to carry its burden of showing that the NDCA is a more convenient forum. Id.
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`Flyp also argues that even if Google’s allegations are true, relevant documents are also likely stored
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`with Google’s Austin-based witnesses. Id. at 8 n.8.
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`To start, the Court notes that the Fifth Circuit has recently agreed with a district court that
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`concluded that this factor is neutral because electronic evidence is equally accessible in either
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`Case 6:22-cv-00031-ADA Document 76 Filed 11/29/22 Page 16 of 30
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`forum. In re Planned Parenthood Fed’n of Am., Inc., No. 22-11009, 2022 WL 16549164, at *3
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`(5th Cir. Oct. 31, 2022). The Fifth Circuit held that “[t]he location of evidence bears much more
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`strongly on the transfer analysis when . . . the evidence is physical in nature.” Id. But the Federal
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`Circuit has held that it is an error to conclude this factor is neutral because electronic documents
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`are easily accessible in both forums. In re Apple, Inc., No., 2022 WL 1196768, at *4 (Fed. Cir.
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`Apr. 22, 2022). To the extent that these two holdings can be reconciled, the Court concludes that
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`the location of physical evidence is more important to this analysis than the location where
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`electronic documents are typically accessed. But the Court still considers the location of document
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`custodians of electronic documents in its analysis of this factor. In re Google LLC, No. 2021-178,
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`2021 WL 5292267, at *2 (Fed. Cir. Nov. 15, 2021).
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`
`
`The Court agrees with Google that at least some of its electronic evidence is likely
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`maintained and created by Google employees in the NDCA. The Federal Circuit has held that it is
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`an error for the Court not to consider “the location of document custodians and [the] location where
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`documents are created and maintained” within the analysis of this factor. Id. As the Court discussed
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`above in analyzing the willing witness factor, there are likely Google employees with relevant
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`knowledge in the NDCA. However, because Google has failed to provide the Court with any
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`specifics of the documents these employees create and maintain, the Court is only able to conclude
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`that it is likely that at least some relevant electronic documents are created and maintained in the
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`NDCA.
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`
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`Based on the same rationale, the Court agrees with Flyp that electronic documents are also
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`likely created and maintained by Google employees in the WDTX. As discussed above, Flyp has
`
`established that at least three relevant Google employees are located in the WDTX. These
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`employees likely create and maintain electronic documents rela