Case 2:24-cv-00321-AWA-DEM Document 71 Filed 02/06/25 Page 1 of 20 PageID#
`1338
`
`THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`NORFOLK DIVISION
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`v.
`
`
`SOUNDCLEAR TECHNOLOGIES LLC, §
`
`
`§
`
`
`§
`
`§ Case No. 2:24-cv-00321-AWA-DEM
`§
`
`§
`
`§
`
`§
`
`§
`
`§
`
`
`
`
`GOOGLE LLC,
`
`
`
`
`Defendant.
`
`GOOGLE’S OPPOSITION TO SOUNDCLEAR’S
`MOTION TO CONDUCT VENUE DISCOVERY
`
`
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 71 Filed 02/06/25 Page 2 of 20 PageID#
`1339
`
`TABLE OF CONTENTS
`
`
`Page
`
`
`INTRODUCTION ............................................................................................................. 1
`I.
`RELEVANT FACTS ......................................................................................................... 2
`II.
`LEGAL STANDARDS ..................................................................................................... 4
`III.
`IV. ARGUMENT ..................................................................................................................... 5
`A.
`SoundClear’s Motion is an Impermissible Supplemental Brief. ........................... 5
`B.
`Venue Discovery is Not Warranted. ...................................................................... 5
`1.
`Google Did Not Withhold Any Relevant Information. ............................. 5
`2.
`Soundclear’s Additional Attempts To Distract From The Merits
`Should Be Ignored. .................................................................................... 8
`Soundclear Provides No Legal Justification For Its Requests. .................. 9
`3.
`Each Item Of Proposed Venue Discovery Is Either Unnecessary,
`Overbroad, Disproportionate, Or Unduly Burdensome. ...................................... 11
`CONCLUSION ................................................................................................................ 14
`
`C.
`
`V.
`
`
`
`
`
`
`
`-i-
`
`
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 71 Filed 02/06/25 Page 3 of 20 PageID#
`1340
`
`
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs.,
`334 F.3d 390 (4th Cir. 2003) .....................................................................................................4
`
`Chertoff Cap., LLC v. Syversen,
`No. 1:20-cv-0138, 2020 U.S. Dist. LEXIS 253453 (E.D. Va. Dec. 8, 2020) ............................9
`
`Cienega v. Echo Glob. Logistics, Inc.,
`No. 2:21-cv-00533-KJM-JDP, 2022 U.S. Dist. LEXIS 20972 (E.D. Cal. Feb.
`4, 2022) ....................................................................................................................................10
`
`Felton v. Felton,
`No. 98-1256, 1999 U.S. App. LEXIS 12081 (4th Cir. June 11, 1999) ....................................10
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)............................................................................................7, 11
`
`Glob. Touch Sols., LLC v. Toshiba Corp.,
`109 F. Supp. 3d 882 (E.D. Va. 2015) ......................................................................................12
`
`MercExchange, LLC v. eBay, Inc.,
`467 F. Supp. 2d 608 (E.D. Va. 2006) ........................................................................................9
`
`Monarch Networking Sols. LLC v. Juniper Networks, Inc.,
`No. 1:23-cv-670, 2023 U.S. Dist. LEXIS 237871 (E.D. Va. Oct. 3, 2023)..................... passim
`
`NanoEnTek, Inc. v. Bio-Rad Labs.,
`No. 2:11-cv-427, 2011 U.S. Dist. LEXIS 138535 (E.D. Va. Dec. 2, 2011) ........................7, 11
`
`Sandow-Pajewski v. Busch Ent. Corp.,
`55 F. Supp. 2d 422 (E.D. Va. 1999) ........................................................................................10
`
`Sunstone Info. Def., Inc. v. F5 Networks, Inc.,
`No. 2:21-cv-50-RCY, 2021 U.S. Dist. LEXIS 234539 (E.D. Va. Dec. 7, 2021) ......................6
`
`Symbology Innovations, LLC v. Lego Sys.,
`282 F. Supp. 3d 916 (E.D. Va. 2017) (Wright Allen, J.) ...............................................4, 10, 14
`
`SZ DJI Tech. Co. v. Bell Textron Inc.,
`No. 1:23-cv-931 (DJN), 2023 U.S. Dist. LEXIS 181050 (E.D. Va. Oct. 6,
`2023) ........................................................................................................................................11
`
`Va. Innovation Scis., Inc. v. Samsung Elecs. Co.,
`928 F. Supp. 2d 863 (E.D. Va. 2013) ........................................................................................4
`
`
`
`
`
`-ii-
`
`
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 71 Filed 02/06/25 Page 4 of 20 PageID#
`1341
`
`
`
`Other Authorities
`
`Local Civil Rule 7(F)(1) ..................................................................................................................5
`
`
`
`
`
`iii
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 71 Filed 02/06/25 Page 5 of 20 PageID#
`1342
`
`
`
`I.
`
`INTRODUCTION
`
`SoundClear has provided no justification for venue discovery. Most of its motion (Dkt. 70,
`
`“Mot.”) rehashes the same arguments that SoundClear made in its brief (Dkt. 61) opposing
`
`Google’s motion to transfer (Dkt. 57-1, “MTT”). Google addressed those arguments in its reply
`
`brief (Dkt. 63).
`
`In its motion, SoundClear goes to great lengths to attempt to inject ambiguities into the
`
`declarations supporting Google’s MTT (Dkts. 57-2, 57-3, and 57-4), arguing those ambiguities
`
`need further investigation. The declarations are not ambiguous. SoundClear suggests that the
`
`declarations show that Google made arbitrary or unclear decisions about what is relevant. But the
`
`declarations and Google’s MTT are focused on features, products, and components SoundClear
`
`itself identified as relevant in its complaint. MTT 2–9. This is consistent with precedent (and
`
`common sense). SoundClear is not arguing that Google or its declarations have misidentified the
`
`relevant features, products, or components.
`
` SoundClear complains that the declarations in support of Google’s MTT, which identify
`
`individuals and teams responsible for the development and maintenance of these features,
`
`products, and components do not identify every worldwide Google employee with any knowledge
`
`about the accused products. But doing so would have been improper because a transfer analysis is
`
`not a numbers game. Instead it is focused on material witnesses. Moreover, in determining a
`
`motion to transfer, “[a] court must . . . rely on preliminary assessments of preliminary lists of
`
`witnesses.” Monarch Networking Sols. LLC v. Juniper Networks, Inc., No. 1:23-cv-670, 2023 U.S.
`
`Dist. LEXIS 237871, *19 (E.D. Va. Oct. 3, 2023) (“Monarch”).
`
`In reality, SoundClear’s request for venue discovery is a fishing expedition. Indeed, many
`
`of its purported justifications for venue discovery are mere speculation. See, e.g., Mot. 9 (baldly
`
`speculating that “Google likely has hundreds” of teams it did not identify). At bottom, SoundClear
`
`
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 71 Filed 02/06/25 Page 6 of 20 PageID#
`1343
`
`
`
`complains that Google is in control of facts about its products and employees and, accordingly, it
`
`speculates more must exist. This alone does not merit venue discovery. The court in Monarch
`
`explained that “[p]ermitting discovery (or discrediting evidence) because one party lacks equal
`
`access to information would either unduly delay resolution of venue or else leave a court devoid
`
`of evidence.” Monarch, *19.
`
`Importantly, the results of venue discovery here would not change the transfer analysis.
`
`SoundClear specifically identified only four witnesses (none in EDVA) that it contends may have
`
`relevant knowledge. Even if the Court considers those witnesses, the scales tilt decidedly in favor
`
`of transfer. See Dkt. 63 at 13. Accordingly, the Court should deny SoundClear’s request.
`
`II. RELEVANT FACTS
`
`Google’s MTT, supporting declarations, and reply in support of its MTT contain a clear
`
`recitation of facts upon which the Court can make a transfer determination. SoundClear attempts
`
`to inject ambiguity where there is none. In particular, SoundClear claims in its motion that
`
`Google’s MTT “begs” the following questions. In reality, SoundClear has answers to all of these
`
`questions and venue discovery is not required to answer them. Specifically:
`
`●
`
`“What information is relevant?” (Mot. 1).
`
`Google’s MTT describes in detail the features, products, components, and witnesses that
`
`are relevant and material to this case based on SoundClear’s complaint. MTT 2–9 (containing the
`
`“relevant allegations,” “relevant witnesses,” and why). Google stated clearly and repeatedly in its
`
`MTT that the identification of witnesses was based on “the allegations in this case.” MTT 5. And
`
`that, “[t]hese likely witnesses are the Google employees who designed, developed, and otherwise
`
`work on the accused functionalities as allegedly implemented on the Google Products identified
`
`in Plaintiff’s complaint.” Id. SoundClear’s motion requesting venue discovery does not challenge
`
`2
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 71 Filed 02/06/25 Page 7 of 20 PageID#
`1344
`
`
`
`Google’s identification of relevant functionalities, products, or components. Any belated attempt
`
`to do so now would be empty and should be rejected.
`
`●
`
`“How was that determined?” (Mot. 1).
`
`As noted immediately above and in Google’s motion to transfer (MTT 2–9), Google
`
`discerned the relevant information based on the allegations in SoundClear’s complaint.
`
`●
`
`“What constitutes an ‘overwhelming majority’ of evidence or witnesses?” (Mot. 2).
`
`The declarations identify teams and people who are responsible for the development and
`
`maintenance of, and/or who work on, the features and components that SoundClear identified in
`
`its complaint. The declarations likewise specifically state where both the majority and minority of
`
`these individuals are located. Dkt. 57-2 ⁋⁋ 6, 7 (e.g., “[t]he majority of the Hotword Modeling
`
`team is based in Mountain View with one team member based in New York” and other similar
`
`statements); Dkt. 57-3 ⁋ 5 (“The majority of my team is based in Mountain View or Northern
`
`California with some team members based in the United Kingdom.”); Dkt. 57-4 ⁋ 6 (“The majority
`
`of team members that worked on these components are located in Mountain View with additional
`
`team members in Taiwan.”). Each of the declarations also states that, as a matter of practice,
`
`documents or physical evidence would be created and maintained by the employees working on
`
`those products and services. Dkt. 57-2 ⁋ 8, Dkt. 57-3 ⁋ 6, Dkt. 57-4 ⁋ 7.
`
`●
`
`“Where are the supposed ‘minority’ of evidence or witnesses located?” (Mot. 2).
`
`This too is described in detail in the declarations as noted immediately above.
`
`●
`
`“What types of witnesses and evidence did Google omit from the denominator in its
`‘majority’ calculation?” (Mot. 2).
`
`No evidence was omitted. As described, the information provided in the MTT was derived
`
`from SoundClear’s allegations in its complaint.
`
`3
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 71 Filed 02/06/25 Page 8 of 20 PageID#
`1345
`
`
`
`Accordingly, SoundClear already has the facts it claims to seek. This begs the question of
`
`what SoundClear really aims to gain from venue discovery. As described in more detail below,
`
`SoundClear’s attempt for discovery is a needless fishing expedition.
`
`III. LEGAL STANDARDS
`
`Courts in this District have found it appropriate to deny requests for venue discovery on a
`
`Section 1404(a) motion to transfer where the requests rest “on bare allegations.” Va. Innovation
`
`Scis., Inc. v. Samsung Elecs. Co., 928 F. Supp. 2d 863, 874 (E.D. Va. 2013). In these cases, “the
`
`Court need not permit even limited discovery . . . [if] such discovery will be a fishing expedition.”
`
`Id. (quoting Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., 334 F.3d 390, 403 (4th Cir. 2003)
`
`(alterations in original)). Although it is within the discretion of the district court whether to order
`
`venue-specific discovery, the Fourth Circuit has explained that “[w]hen a plaintiff offers only
`
`speculation or conclusory assertions about contacts with a forum state, a court is within its
`
`discretion in denying jurisdictional discovery.” Carefirst, 334 F.3d at 402–403. Moreover, “a
`
`district court act[s] within its discretion by denying discovery on a jurisdictional issue when the
`
`plaintiff had failed to offer a concrete proffer, there was no indication of fraud or misconduct in
`
`the defendant’s affidavits, and there was no reason to believe that the additional information sought
`
`would alter the outcome.” Symbology Innovations, LLC v. Lego Sys., 282 F. Supp. 3d 916, 933–
`
`34 (E.D. Va. 2017) (Wright Allen, J.). As in Va. Innovation Scis., courts extend this reasoning to
`
`venue-related discovery.1
`
`
`
` 1
`
` In fact, in the “Legal Standards” section of its motion, SoundClear also applies “jurisdictional
`discovery” standards to venue discovery. Mot. 5–6.
`
`4
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 71 Filed 02/06/25 Page 9 of 20 PageID#
`1346
`
`
`
`IV. ARGUMENT
`
`A.
`
`SoundClear’s Motion is an Impermissible Supplemental Brief.
`
`SoundClear’s motion for venue discovery amounts to an unauthorized sur-reply and should
`
`be rejected for that reason alone. Under the guise of asking for venue discovery—a request it
`
`already made in its opposition to Google’s MTT and to which Google replied to (Dkt. 63 at 18–
`
`20)—SoundClear raises arguments about the merits of Google’s MTT after briefing on the motion
`
`has closed. For example, SoundClear implies that Google’s MTT is improper because Google had
`
`already filed a “fact-intensive” motion to dismiss this case. Mot. 4. This has nothing to do with
`
`whether venue discovery is warranted. SoundClear also improperly takes this as an opportunity to
`
`rebut points raised in Google’s reply in support of its MTT. In fact, in its motion, SoundClear cites
`
`and discusses Google’s reply no less than five times. Mot. 1–3, 8, 10. Local Civil Rule 7(F)(1)
`
`mandates that “[n]o further briefs or written communications may be filed [on a motion] without
`
`first obtaining leave of Court.” Because SoundClear did not seek leave to file what is essentially a
`
`sur-reply, the motion should be denied.
`
`B.
`
`Venue Discovery is Not Warranted.
`
`1. Google did not withhold any relevant information.
`
`SoundClear has provided no justification for its burdensome request for venue discovery.
`
`At this early stage in the case, the court must rely on a preliminary assessment of witnesses.
`
`Monarch, *19. Google provided more than sufficient information for this purpose. See MTT 2–9;
`
`Dkts. 57-2, 57-3, and 57-4. SoundClear makes numerous unfounded accusations that the MTT and
`
`supporting declarations are missing information or that, in some instances, Google actively
`
`withheld information. Accordingly, SoundClear claims it is entitled to venue discovery to
`
`investigate this information. There is nothing further to discover.
`
`5
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 71 Filed 02/06/25 Page 10 of 20 PageID#
`1347
`
`
`
`First, SoundClear states that Google “ignored” unfavorable facts due to bias. Mot. 2 n.4
`
`(stating the investigation “was certainly biased”), 8. No bias impacted the MTT. Google told
`
`SoundClear exactly what features, products, and components were relevant (MTT 2–9), which
`
`SoundClear does not presently dispute; the teams and individuals who developed, maintain, and
`
`work on those things; and the locations of those teams and individuals (including whether they
`
`were in the NDCA or elsewhere). Of course Google is in control of these facts (as any defendant
`
`would be). That is not a justification for venue discovery because, as the court in Monarch stated,
`
`“resolution of motions to transfer venue—typically brought near the outset of litigation—
`
`necessarily require a court to rely on parties accurately to ‘disclose the facts underlying the motions
`
`they file,’ as ‘most, if not all, of the relevant facts are [often] exclusively controlled by’ one of the
`
`parties.” Monarch, *19 (quoting Abstrax, Inc. v. Hewlett-Packard Co., No. 2:14-cv-158-JRG,
`
`2014 U.S. Dist. LEXIS 155805, *7 (E.D. Tex. Nov. 4, 2014)). SoundClear provides no evidence
`
`that Google’s disclosure of facts was inaccurate; only speculation.
`
`Next, SoundClear alleges that Google failed to provide pertinent information such as
`
`“where development or maintenance occurs.” Mot. 10. That is simply incorrect. The declarants
`
`refer to teams and individuals who have “responsibility for development and maintenance” and/or
`
`work on various features and components and where those teams and individuals are located. See
`
`Dkt. 57-2 ⁋ 6; Dkt. 57-3 ⁋ 5; Dkt. 57-4 ⁋ 6. “[I]t is ‘permissible to infer, absent any contrary
`
`evidence from the non-movant, that witnesses are located at or near the center of the allegedly
`
`infringing activities and that witnesses involved in the design and manufacture of the accused
`
`products are material.’” Sunstone Info. Def., Inc. v. F5 Networks, Inc., No. 2:21-cv-50-RCY, 2021
`
`U.S. Dist. LEXIS 234539, at *12 (E.D. Va. Dec. 7, 2021) (quoting Glob. Touch Sols., LLC v.
`
`6
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 71 Filed 02/06/25 Page 11 of 20 PageID#
`1348
`
`
`
`Toshiba Corp., 109 F. Supp. 3d 882, 900 (E.D. Va. 2015)). The Court does not even need to infer
`
`where these witnesses are located because Google provided that information.
`
`SoundClear then pivots and alleges that Google actively “blocked” information
`
`unfavorable to its position using an assertion of privilege. Mot. 2. Google did not say that and it
`
`has not done so. Google is not withholding information relevant to determination of the MTT on
`
`privilege grounds or otherwise. Google disclosed more than sufficient information to meet its
`
`burden for the motion to transfer, and SoundClear’s allegations on this point are mere speculation.
`
`As a last ditch attempt to secure venue discovery, SoundClear speculates wildly about what
`
`it believes Google has omitted. For example, SoundClear implies that Google failed to identify
`
`potentially “hundreds” of relevant teams. Mot. 8–9. This is entirely unfounded. SoundClear further
`
`speculates that “[t]here is almost no chance that in a company having almost 200,000 employees,
`
`only the nine Google addressed merit consideration.” Mot. 3. But, the identification of nine
`
`specific witnesses is reasonable when one considers that it is the result of a good faith investigation
`
`focused on material witnesses. And especially when one considers the early stage of the case and
`
`that very few of the “200,000” Google employees that SoundClear refers to will actually become
`
`witnesses in this case. Indeed, had Google identified more potential witnesses, SoundClear surely
`
`would be alleging that Google was impermissibly playing a “numbers game” because of its size
`
`and number of employees.
`
`Google’s identification of material witnesses is proper because the court determining a
`
`motion to transfer will assess “witnesses and material information that will arise later in the case.”
`
`NanoEnTek, Inc. v. Bio-Rad Labs., No. 2:11-cv-427, 2011 U.S. Dist. LEXIS 138535, *15 (E.D.
`
`Va. Dec. 2, 2011); See also In re Genentech, Inc., 566 F.3d 1338, 1343 (Fed. Cir. 2009) (“A district
`
`court should assess the relevance and materiality of the information the witness may provide.”).
`
`7
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 71 Filed 02/06/25 Page 12 of 20 PageID#
`1349
`
`
`
`As Google stated in its MTT, it identified witnesses and teams that have material knowledge based
`
`on the accused products, functionalities, and components in this case. MTT 2–9. None are in
`
`Virginia.
`
`2. SoundClear’s additional attempts to distract from the merits should
`be ignored.
`
`Perhaps recognizing that Google provided a full record upon which the MTT could be
`
`decided, SoundClear next pivots to attempting to call that factual information into question. Each
`
`of SoundClear’s arguments to this effect are transparent attempts to introduce confusion where
`
`there is none.
`
`For example, SoundClear incorrectly claims that “Google distrusts the accuracy of its
`
`conclusions,” citing Google’s routine reservation of rights to identify additional witnesses later in
`
`the case. Mot. 1. Google’s reservation of rights is commonplace and simply reflects that motions
`
`to transfer are often made early in the case based on “preliminary assessments of preliminary lists
`
`of witnesses.” Monarch, *19. The reservation of rights does not speak to the soundness of Google’s
`
`current identification of witnesses.
`
`SoundClear’s motion also reiterates numerous complaints it made about the declarations
`
`in its opposition to Google’s MTT. For example, SoundClear claims without any explanation that
`
`the declarations contain hearsay (Mot. 3, 8), but the declarations only contain facts that the
`
`witnesses know from personal knowledge and/or their investigations. See Dkt. 63 at 1–7.
`
`SoundClear also claims there is no basis for the declarant’s personal knowledge. Mot. 3. This is
`
`meritless. Each declarant explicitly states the basis for their knowledge, including, for example,
`
`how they know what teams and individuals work on which functionalities and components. See,
`
`e.g., Dkt. 57-2 ⁋ 5 (“As part of my job, I also obtained historical knowledge about aspects of the
`
`people and teams that were involved in designing and developing the Google Products.”); Dkt. 57-
`
`8
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 71 Filed 02/06/25 Page 13 of 20 PageID#
`1350
`
`
`
`3 ⁋ 5 (“Given our working relationship, I am familiar with some aspects of Mr. Clark’s knowledge
`
`related to the Google Products.”); Dkt. 57-4 ⁋ 4 (“as part of my job responsibilities, I am familiar
`
`with hardware components of the Google Products and the teams that work on these
`
`components.”).
`
`SoundClear also claims that the declarations need investigation because they contain
`
`opinions. Mot. 3, 8–9. They do not. The declarants supplied facts about particular teams and
`
`people, where they are located, and what features and products they work on and/or are responsible
`
`for developing and maintaining. The declarants did not opine on or provide opinions regarding
`
`what features, products, and components are relevant to this case. Instead, as set forth in detail in
`
`Google’s MTT, these features, products, and components are identified based on SoundClear’s
`
`complaint. MTT 2–9. Although the declarants may have used the word “relevant” (Mot. 9), they
`
`explained in their declarations the specific information that was relevant (e.g., the features,
`
`functionalities, components, and products that Google identified in its MTT based on
`
`SoundClear’s complaint). Dkt. 57-2 ⁋⁋ 6, 8–9; Dkt. 57-3 ⁋⁋ 5–7; Dkt. 57-4 ⁋⁋ 5–8. Accordingly,
`
`there is nothing further to investigate. The Court should not credit SoundClear’s attempt to muddy
`
`language that is clear on its face.
`
`3. SoundClear provides no legal justification for its requests.
`
`The legal authority supports Google’s positions. See Dkt. 63 at 18–20. SoundClear’s claims
`
`that Google did not “address any of SoundClear’s authority” (Mot. 3) are incorrect. SoundClear
`
`cites much of the same authority it presented in its opposition to the MTT, which Google refuted
`
`in its reply. See Dkt. 63 at 18–21 (discussing MercExchange, LLC v. eBay, Inc., 467 F. Supp. 2d
`
`608, 612 (E.D. Va. 2006) and Chertoff Cap., LLC v. Syversen, No. 1:20-cv-0138, 2020 U.S. Dist.
`
`LEXIS 253453, at *7 (E.D. Va. Dec. 8, 2020)). Notwithstanding that Google has already dealt
`
`with SoundClear’s positions, Google agreed to meet and confer in good faith. Accordingly,
`
`9
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 71 Filed 02/06/25 Page 14 of 20 PageID#
`1351
`
`
`
`SoundClear’s claim that Google has an approach of “intransigence, non-cooperation, and one-
`
`sided gamesmanship” (Mot. 3) is false and uncalled for.
`
`The other cases raised in SoundClear’s motion are distinguishable. In each, the courts
`
`merely found that the witnesses lacked knowledge or foundation for their testimony. See Felton v.
`
`Felton, No. 98-1256, 1999 U.S. App. LEXIS 12081, *6–7 (4th Cir. June 11, 1999) (the court
`
`excluded a witness’s testimony on negligent boat operation under FRE 701 when the witness
`
`herself stated “I have no idea of boat speeds.”); Sandow-Pajewski v. Busch Ent. Corp., 55 F. Supp.
`
`2d 422, 428 (E.D. Va. 1999) (the Court excluded opinion testimony where the witnesses failed to
`
`provide a reliable basis for their opinion). This is not the case with Google’s declarations. And
`
`Cienega v. Echo Glob. Logistics, Inc., goes against SoundClear’s position. No. 2:21-cv-00533-
`
`KJM-JDP, 2022 U.S. Dist. LEXIS 20972, at *5 (E.D. Cal. Feb. 4, 2022). There, the court overruled
`
`objections to a declaration because the statements were “neither speculative nor vague” and
`
`because “the court has not relied on any of his averments about events or facts for which he has
`
`no personal knowledge.” Id. Similarly, here, the declarations are not speculative or vague and the
`
`basis for the declarants’ knowledge was provided. See Dkt. 63 at 2–7. Thus, SoundClear’s
`
`authority does not provide any basis to discount the clear facts provided to support the MTT.
`
`Instead, the Court should deny SoundClear’s request for venue discovery because
`
`SoundClear “failed to offer a concrete proffer, there was no indication of fraud or misconduct in
`
`the defendant’s affidavits, and there was no reason to believe that the additional information sought
`
`would alter the outcome.” Symbology Innovations, LLC v. Lego Sys., 282 F. Supp. 3d at 933–34.
`
`SoundClear admits it has not asserted “fraud” or “bad faith.” Mot. 2. And it can’t, because there is
`
`none—which further underscores the lack of justification for any additional venue discovery.
`
`SoundClear has also failed to identify any information the Court still needs to make its
`
`10
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 71 Filed 02/06/25 Page 15 of 20 PageID#
`1352
`
`
`
`determination. Accordingly, SoundClear has not met its burden to show that discovery is
`
`warranted.
`
`C.
`
`Each item of proposed venue discovery is either unnecessary, overbroad,
`disproportionate, or unduly burdensome.
`
`Google provided more than sufficient information to support its MTT. SoundClear’s latest
`
`requests should be denied on the merits because they (1) go well beyond issues of venue; (2)
`
`request information that has either already been provided or would not impact the transfer analysis;
`
`and/or (3) are unduly burdensome.
`
`Interrogatory No. 1: Provide a list of all the teams responsible for the design,
`
`development, and maintenance of the features and functionalities of the accused Google
`
`Products and Services. Google has provided this. As described, Google’s MTT outlines what these
`
`relevant features and functionalities are based on SoundClear’s complaint. MTT 2–9. The
`
`declarations provide facts regarding where the related teams and individuals are located. Id. Later
`
`in its motion, SoundClear expands its request to all teams relevant to the “accused products”
`
`generally (and not just the accused features and functionalities). Mot. 9. The inquiry relevant to
`
`motions to transfer for convenience, however, is not where all potential employees with any level
`
`of knowledge about accused products are located. As noted, the proper inquiry is where material
`
`witnesses reside. See NanoEnTek, Inc. v. Bio-Rad Labs., 2011 U.S. Dist. LEXIS 138535, *15; In
`
`re Genentech, Inc., 566 F.3d at 1343; SZ DJI Tech. Co. v. Bell Textron Inc., No. 1:23-cv-931
`
`(DJN), 2023 U.S. Dist. LEXIS 181050, at *21 (E.D. Va. Oct. 6, 2023) (granting transfer in part
`
`because “a substantial number of material witnesses reside within the transferee venue”). If
`
`SoundClear had a specific question about a specific functionality, it could have asked. But because
`
`relevant information was already provided, SoundClear embarked on a fishing expedition instead.
`
`11
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 71 Filed 02/06/25 Page 16 of 20 PageID#
`1353
`
`
`
`Interrogatory No. 2: Provide a list of the names and cities of residents of all members of
`
`the teams identified in the Declarations. There is no justification for this and it is blatant fishing.
`
`As noted, Google’s MTT and supporting declarations outline where a majority and minority of the
`
`identified team members are located. MTT 2–9. SoundClear provides no justification for why it
`
`needs the names of these employees. It has their locations. Id. It states only that this list “will allow
`
`the Court to determine whether Google assessed a sufficient universe of individuals in preparing
`
`the Declarations.” Mot. 9. That does not make sense. It is unclear how listing team member names
`
`would allow the Court to do this. Moreover, to the extent that SoundClear is saying Google’s
`
`investigation is somehow deficient, they have made no such showing; they have only provided
`
`speculation.
`
`Interrogatory No. 3: Identify all hard copy documents (that are not otherwise available
`
`electronically) identified to date that Google believes may be relevant to the claims or defenses.
`
`Google presented facts in its MTT about where any such documents are likely to be found: with
`
`the employees who created and maintain them. See Dkt. 57-2 ⁋ 8; Dkt. 57-3 ⁋ 6; Dkt. 57-4 ⁋ 7. As
`
`the court recognized in Global Touch, the Federal Circuit has recognized that “the bulk of the
`
`relevant evidence usually comes from the accused infringer, . . . the place where the defendant’s
`
`documents are kept weighs in favor of transfer to that location.” Global Touch Sols., LLC v.
`
`Toshiba Corp., 109 F. Supp. 3d 882, 900 (E.D. Va. 2015) (quoting In re Genentech, Inc., 566 F.3d
`
`at 1345). To date, despite its ongoing good-faith investigation, Google has not identified any
`
`relevant hard copy documents (that are not otherwise available electronically) in or outside the
`
`District. But this is immaterial because (1) Google is not relying on only hard copy documents to
`
`support its motion to transfer; and (2) to the extent these documents exist, they would most likely
`
`be located with the individuals Google has already identified, none of whom are in EDVA.
`
`12
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 71 Filed 02/06/25 Page 17 of 20 PageID#
`1354
`
`
`
`Depositions. SoundClear claims it needs at least eight depositions. That is unreasonable
`
`and disproportionate. SoundClear’s request for a 30(b)(6) deposition on the same interrogatory
`
`topics (Mot. 7) are improper for the same reasons the interrogatory topics are improper. And
`
`SoundClear’s request for a four-hour deposition is excessive.
`
`The declarant depositions that SoundClear seeks are not warranted because, as explained
`
`above, the declarations are not ambiguous and do not contain opinions. SoundClear cannot
`
`credibly say that it is worth burdening the parties and witnesses so that it can ask declarants what
`
`the words “primarily” or “majority” mean. The declarations are 10 pages long in total, and
`
`SoundClear requests 2.5 hours of deposition time with each declarant (one of which has a
`
`declaration that is less than 2 pages long). That is again excessive and reveals that SoundClear is
`
`on a fishing expedition. And, discovery would do nothing other than delay resolution of Google’s
`
`motion. SoundClear filing this motion after it has already once requested venue discovery in its
`
`opposition is evidence of its attempts to delay. This gamesmanship should not be rewarded.
`
`SoundClear also requests to depose Sarah Hatfield, Anthony Harris, Austin Simmons, and
`
`Tyler Burcher-DuPont. First, as noted in Google’s reply brief (Dkt. 63 at 11 n.4) Anthony Harris
`
`and Austin Simmons are not Google employees. As referenced in the LinkedIn profiles, they
`
`appear to be employees of Mosaic, and therefore should presumably be contacted through counsel
`
`for Mosaic. As they are not Google employees, Google cannot accept service of a subpoena for a
`
`deposition on their behalf. Second, as noted above, it does not matter whether any of these four
`
`individuals have some relevant information. The inquiry for a motion to transfer for convenience
`
`is whether their knowledge is material. As Google explained in its reply brief, none of these four
`
`individuals appear to have material information. Id. Importantly, even if the Court considers all
`
`four of these witnesses in the