Case 2:24-cv-00321-AWA-DEM Document 82 Filed 03/14/25 Page 1 of 18 PageID#
`1932
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`NORFOLK DIVISION
`
`SOUNDCLEAR TECHNOLOGIES LLC,
`
`Plaintiff,
`
`
`v.
`
`GOOGLE LLC,
`
`Defendant.
`
`
`
`
`
`
`Case No. 2:24-cv-00321-AWA-DEM
`
`JURY TRIAL DEMANDED
`
`PLAINTIFF’S OBJECTIONS TO MAGISTRATE
`JUDGE’S MEMORANDUM ORDER (DKT. 78)
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 82 Filed 03/14/25 Page 2 of 18 PageID#
`1933
`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`III.
`
`IV.
`
`Introduction ......................................................................................................................... 1
`
`Magistrate Judge’s Authority and Order ............................................................................. 2
`
`Procedural Background ....................................................................................................... 2
`
`Legal Background ............................................................................................................... 4
`
`A.
`
`B.
`
`C.
`
`Standard of Review ................................................................................................. 4
`
`Applicable Evidentiary Standards ........................................................................... 4
`
`Subject Matter Waiver ............................................................................................ 6
`
`V.
`
`Objections ........................................................................................................................... 6
`
`A.
`
`B.
`
`Clearly Erroneous ................................................................................................... 6
`
`Legal Error .............................................................................................................. 7
`
`1.
`
`2.
`
`3.
`
`Failure to Apply Subject Matter Waiver Regarding Outside Litigation
`Counsel’s Investigation in this Case ........................................................... 7
`
`Lack of Authority to Render a Finding Related to the Motion to Transfer
`Based Upon Privileged Information ........................................................... 9
`
`Failure to Address Whether Testimony Amounted to at Least Lay Opinions
`................................................................................................................... 10
`
`
`
`
`
`
`
`i
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`

`

`Case 2:24-cv-00321-AWA-DEM Document 82 Filed 03/14/25 Page 3 of 18 PageID#
`1934
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Avondale Mills, Inc. v. Norfolk S. Corp.,
`No. 1:05-2817-MBS, 2008 U.S. Dist. LEXIS 111213 (D.S.C. Feb. 21, 2008) .........................5
`
`Bank of China v. NBM LLC,
`359 F.3d 171 (2d Cir. 2004).......................................................................................................5
`
`Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc.,
`334 F.3d 390,403 (4th Cir. 2003) ..............................................................................................3
`
`Certain Underwriters at Lloyd’s, London v. Sinkovich,
`232 F. 3d 200 (4th Cir. 2000) ....................................................................................................5
`
`CertusView Techs., LLC v. S&N Locating Servs., LLC,
`107 F. Supp. 3d 500 (E.D. Va. 2015) ........................................................................................4
`
`In re EchoStar Commc’ns. Corp.,
`448 F.3d 1294 (Fed. Cir. 2006)..................................................................................................9
`
`Fallon v. Colvin,
`No. 2:12cv423, 2013 U.S. Dist. LEXIS 139194 (E.D. Va. Sep. 25, 2013) .............................10
`
`Fed. Election Comm’n v. The Christian Coal,
`178 F.R.D. 456 (E.D. Va. 1998) ............................................................................................4, 7
`
`Felton v. Felton,
`No. 98-1256, 1999 U.S. App. LEXIS 12081 (4th Cir. June 11, 1999) ................................5, 12
`
`Fort James Corp. v. Solo Cup Co.,
`412 F.3d 1340 (Fed. Cir. 2005)..................................................................................................6
`
`Lord & Taylor, LLC v. White Flint, L.P.,
`849 F.3d 567 (4th Cir. 2017) .....................................................................................................5
`
`In re Martin Marietta Corp.,
`856 F.2d 619 (4th Cir. 1988) .....................................................................................................6
`
`Monarch Networking Sols. LLV v. Juniper Networks, Inc.,
`No. 1:23-cv-670, 2023 U.S. Dist. Lexis 237871 (E.D. Va Oct. 3, 2023) ..................................3
`
`In re Royal Ahold N.V. Sec. & ERISA Litig.,
`230 F.R.D. 433 (D. Md. 2005) ...................................................................................................9
`
`ii
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 82 Filed 03/14/25 Page 4 of 18 PageID#
`1935
`
`Symbology Innovations, LLC v. Lego Sys., Inc.,
`282 F. Supp. 3d 916 (E.D. Va. 2017) ........................................................................................3
`
`United States v. Holguin,
`51 F.4th 841 (9th Cir. 2022) ......................................................................................................5
`
`Virginia Innovation Scis., Inc. v. Samsung Elecs. Co., Ltd.,
`928 F. Supp. 2d 863 (E.D. Va. 2013) ........................................................................................3
`
`Statutes
`
`28 U.S.C. § 636(b)(1) ......................................................................................................................1
`
`28 U.S.C. § 636(b)(1)(A) .............................................................................................................4, 6
`
`28 U.S.C. § 1404(a) .........................................................................................................................1
`
`Other Authorities
`
`Fed. R. Civ. P. 72(a) ........................................................................................................................4
`
`Fed. R. Evid. 602 ...........................................................................................................................12
`
`Fed. R. Evid. 701 .......................................................................................................................5, 12
`
`Fed. R. Evid. 801 ...........................................................................................................................12
`
`Fed. R. Evid. 802 ...........................................................................................................................12
`
`Fed. R. Evid. 803 ...........................................................................................................................12
`
`
`
`iii
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 82 Filed 03/14/25 Page 5 of 18 PageID#
`1936
`
`Plaintiff SoundClear Technologies LLC (“SoundClear”), pursuant to 28 U.S.C.
`
`§ 636(b)(1), Federal Rule of Civil Procedure (“FRCP”) 72(a), and Local Civil Rule (“LCR”) 72,
`
`states the following objections to the Memorandum Order (Dkt. 78) and the findings and
`
`conclusions made at the March 5, 2025 hearing (“Hearing”) before Magistrate Judge Miller
`
`(collectively, the “Order”).
`
`I.
`
`Introduction
`
`The record related to Google’s Motion to Transfer under 28 U.S.C. § 1404(a) (Dkts. 38-
`
`39, “MTT”) is skewed by biased, opinion-based statements of ultimate conclusion by Google’s
`
`Declarants. The Order blessed Google’s refusal to allow SoundClear to cross-examine the
`
`Declarants or discover whether their opinions are supported by adequate foundation. And similar
`
`opinion testimony has now been provided by Google’s litigation counsel, whose job is to be an
`
`advocate. That testimony is protected behind a partial privilege shield.
`
`SoundClear thus objects to the Order on the following three primary grounds.
`
`First, the Court elicited answers from Google’s outside litigation counsel as to how that
`
`counsel conducted their investigation. It allowed Google’s counsel to testify that, in her opinion,
`
`the investigation was objective. But the Court upheld privilege as to all undisclosed facts related
`
`to that testimony. In short, the Court failed to recognize or apply a subject matter waiver.
`
`Second, the Order includes findings and conclusions supporting Google’s MTT. See
`
`Section IV.B.2 infra. But the scope of the referral was limited to SoundClear’s motion for Venue
`
`Discovery (Dkts. 69-70, “Venue Discovery Motion”). Thus those findings and conclusions
`
`exceeded the Magistrate Judge’s authority. They also appear to have unduly influenced the
`
`Court’s ruling on the Venue Discovery Motion. They should thus be stricken for that reason as
`
`well.
`
`1
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 82 Filed 03/14/25 Page 6 of 18 PageID#
`1937
`
`Third, the Order failed to address the merits of SoundClear’s Venue Discovery Motion.
`
`The Court recognized that the Google Declarant’s descriptions as to how the investigations were
`
`conducted “may be an opinion.” Ex. 1 (Mar. 5, 2025 Hr’g Tr. (“Transcript”)), 5:6-10. Certainly,
`
`then, its outside litigation counsel’s similar statements were opinions as well. But the Court did
`
`not address those opinions or whether they were supported by the proper evidentiary foundation.
`
`It instead addressed positions SoundClear disclaimed. SoundClear moved for venue discovery to
`
`assess the foundation for opinions (e.g., lay-opinion testimony) and hearsay (declaration).
`
`SoundClear expressly stated that it did not seek to contest simple fact testimony; it did not assert
`
`fraud. But almost every question at the Hearing, and every case referenced in the Order,
`
`addressed those non-disputed, simple-fact issues. The Order applied no evidentiary law, and
`
`made no findings, related to the testimony SoundClear—and the Court—identified as
`
`constituting (at least lay) opinions.
`
`II. Magistrate Judge’s Authority and Order
`
`The Magistrate’s authority extended only to ruling on SoundClear’s Venue Discovery
`
`Motion: “This matter is before the court on SoundClear Technologies, LLC’s Motion to Conduct
`
`Venue Discovery, (ECF No. 69).” Order, p. 1.
`
`The Order incorporated by reference findings the Magistrate made on the record at the
`
`Hearing: “The court heard oral argument on the motion, and for the reasons stated on the record
`
`and briefly explained below, DENIES SoundClear’s Motion to Conduct Venue Discovery.” Id.
`
`III.
`
`Procedural Background
`
`SoundClear identified which portions of the Google Declarations it was not challenging
`
`(number 1 below) and which portions it was challenging (number 2 below):
`
`[Category] 1. location and knowledge of certain individuals, and
`
`2
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 82 Filed 03/14/25 Page 7 of 18 PageID#
`1938
`
`[Category] 2. characterization of the results of an investigation to prove negative facts or
`implications. Some examples include assertions that little or no other
`witnesses or information exist beyond what Google referenced, or that
`information resides “primarily” with certain witnesses or in certain locations
`(to the exclusion of others).
`
`Dkt. 70, p. 7.
`
`SoundClear expressly stated that it did not contest direct statements of fact—as the
`
`movant did in Monarch Networking Sols. LLV v. Juniper Networks, Inc., No. 1:23-cv-670, 2023
`
`U.S. Dist. Lexis 237871, at *19 (E.D. Va Oct. 3, 2023):1
`
`This is not a Monarch situation. SoundClear does not allege that Google committed
`fraud or bad faith. Id.; see also id. at 10-11. Nor has SoundClear made any
`“accusations” against Google. See Resp. Br., 5. If any information was withheld,
`Google admitted doing so on a privilege basis. SoundClear has not contested that
`basis nor hinted at any impropriety. SoundClear simply contests Google’s selective
`use of privilege—as both a sword and shield—to submit testimony containing
`conclusions and opinions based upon that protected information.
`Dkt. 72, p. 4.
`
`SoundClear instead pointed out that Google attempted to avoid important evidentiary
`
`foundation issues:
`
`Google does not address SoundClear’s need to test the Declarations (e.g., on
`hearsay or foundational grounds). It dedicates Section IV.B.2 of its Response Brief
`to these topics. But it ignores the Category 2 facts.
`
`
`Id., p. 6 (emphasis added) (the above quote is included in a section identifying Google’s failure
`
`to address hearsay or opinion-based testimony).
`
`
`1 Neither party relied substantively on Virginia Innovation Scis., Inc. v. Samsung Elecs. Co.,
`Ltd., 928 F. Supp. 2d 863, 874 (E.D. Va. 2013). The Order cites it for the same bad-faith issue
`addressed in Monarch. The other cases Google and the Order cite also addressed the same
`issues: Symbology Innovations, LLC v. Lego Sys., Inc., 282 F. Supp. 3d 916, 933-34 (E.D. Va.
`2017) (citing Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390,403 (4th
`Cir. 2003)). They all address fraud and whether simple facts should be contested. SoundClear
`disclaimed each of those issues by denouncing reliance on a Monarch rationale (a case that
`cited Symbology and Carefirst). See Section II supra.
`
`3
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 82 Filed 03/14/25 Page 8 of 18 PageID#
`1939
`
`IV.
`
`Legal Background
`
`A.
`
`Standard of Review
`
`Rule 72(a) of the FRCP provides that “[t]he district judge in a case must consider timely
`
`objections” to a magistrate judge’s ruling on non-dispositive matters and must “modify or set
`
`aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a);
`
`28 U.S.C. § 636(b)(1)(A); CertusView Techs., LLC v. S&N Locating Servs., LLC, 107 F. Supp. 3d
`
`500, 504 (E.D. Va. 2015). As the Court has explained:
`
`A magistrate judge’s “finding is ‘clearly erroneous’ when although there is evidence
`to support it, the reviewing court on the entire evidence is left with the definite and
`firm conviction that a mistake has been committed.” If a court is not firmly
`convinced that such an error has occurred, then “the magistrate order must be
`affirmed.” Indeed, “altering a magistrate] [judge’s] non-dispositive orders [is]
`‘extremely difficult to justify.’”
`Id. (alterations in original) (citations omitted).
`
`Indeed, “[F]or purposes of a review under the clearly erroneous standard, a mistake has
`
`been committed if the factual finding seems so improbable as to belie belief, or is incredible on
`
`the admitted facts, or is inconceivable, or is internally inconsistent.” Fed. Election Comm’n v.
`
`The Christian Coal, 178 F.R.D. 456, 459-60 (E.D. Va. 1998) (cleaned up).
`
`B.
`
`Applicable Evidentiary Standards
`
`Opinions differ from facts in that they are either (1) subjective or (2) capable of being
`
`contested as a matter of logic. It seems self-evident that characterizing or summarizing the
`
`results of an investigation constitutes at least lay-opinion testimony. Those statements are not
`
`direct facts. The direct facts underlie the investigation—facts Google withheld as privileged. But,
`
`again, the characterization of the investigation (e.g., regarding whether it was objective, how it
`
`was conducted, issues of “relevance,” what is a “majority” or how it was calculated, and what
`
`constitutes “primar[]y” locations or evidence) are opinions:
`
`4
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 82 Filed 03/14/25 Page 9 of 18 PageID#
`1940
`
`As stated previously, lay testimony must fall within the scope of Fed. R. Evid. 701.
`Lay opinion testimony could be permissible, “so long as the testimony is based on
`an investigation and reflects the witness’s investigatory findings and conclusions,
`and was not rooted exclusively in his or her expertise in the textile industry.”
`Avondale Mills, Inc. v. Norfolk S. Corp., No. 1:05-2817-MBS, 2008 U.S. Dist. LEXIS 111213, at
`
`*20 (D.S.C. Feb. 21, 2008) (citing United States v. Chapman, 209 F. App’x 253, 267 (4th Cir.
`
`2006)) (emphasis added).
`
`Lay opinions are inadmissible when the sole basis of a witness’s knowledge is their
`
`analysis of data collected. Certain Underwriters at Lloyd’s, London v. Sinkovich, 232 F. 3d 200,
`
`204 (4th Cir. 2000) (“Geary’s sole basis of knowledge concerning the accident derived from his
`
`investigation and his analysis of the data he collected.”); see also:
`
`The fact that Huang has specialized knowledge, or that he carried out the
`investigation because of that knowledge, does not preclude him from testifying
`pursuant to Rule 701, so long as the testimony was based on the investigation and
`reflected his investigatory findings and conclusions, and was not rooted
`exclusively in his expertise in international banking.
`Bank of China v. NBM LLC, 359 F.3d 171, 181 (2d Cir. 2004) (emphasis added); United States v.
`
`Holguin, 51 F.4th 841, 864 (9th Cir. 2022) (“lay opinions—inferences drawn from observations
`
`during the investigation—rather than testimony conveying personal observations . . . .”).
`
`“[T]he key to Rule 701 lay opinion testimony is that it must arise from the personal
`
`knowledge or firsthand perception of the witness.” Lord & Taylor, LLC v. White Flint, L.P., 849
`
`F.3d 567, 575 (4th Cir. 2017); Felton v. Felton, No. 98-1256, 1999 U.S. App. LEXIS 12081, at
`
`*7 (4th Cir. June 11, 1999) (“Lay opinion testimony is inadmissible absent an adequate factual
`
`foundation demonstrating a rational link between the witness’ observations and her ultimate
`
`testimonial conclusions.” (emphasis added)).
`
`5
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 82 Filed 03/14/25 Page 10 of 18 PageID#
`1941
`
`C.
`
`Subject Matter Waiver
`
`In the Fourth Circuit, subject matter waiver applies to documents protected by the
`
`attorney-client privilege and to non-opinion work product; limited waiver is applied to opinion
`
`work product. See In re Martin Marietta Corp., 856 F.2d 619, 623 (4th Cir. 1988).
`
`“The widely applied standard for determining the scope of a waiver of attorney-client
`
`privilege is that the waiver applies to all other communications relating to the same subject
`
`matter.” Fort James Corp. v. Solo Cup Co., 412 F.3d 1340, 1349 (Fed. Cir. 2005).
`
`V.
`
`Objections
`
`The matters addressed in the Order exceeded the scope of the referral and statutory
`
`authority given to the Magistrate Judge. For example, the Order considered the merits of
`
`Google’s MTT (Dkts. 38-39), not just SoundClear’s motion for Venue Discovery Motion (Dkt.
`
`69-70). Judge Wright Allen did not refer the MTT, or any of the related convenience factors, to
`
`Magistrate Judge Miller. See 28 U.S.C. § 636(b)(1)(A) (providing that “a judge may designate a
`
`magistrate judge to hear and determine any pretrial matter pending before the court”); LCR 72
`
`(“Duties . . . may be assigned or referred . . .”).
`
`For that reason alone all findings and conclusions should be stricken, because it appears
`
`that the findings and conclusions related to the MTT unduly influenced the Court’s ruling on the
`
`Venue Discovery Motion. SoundClear further objects on the following grounds.
`
`A.
`
`Clearly Erroneous
`
`The Order appears to have concluded that Google conducted an objective investigation.
`
`Ex. 1, 10:11-11:5. There is no factual basis for that determination. The Court simply accepted
`
`testimony by Google’s outside litigation counsel in response to a loaded and leading question.
`
`See Section IV.B.1 infra. It also made speculative inferences based solely on there being other
`
`cases pending in this District to which Google is a party. See Section IV.B.2 infra.
`
`6
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 82 Filed 03/14/25 Page 11 of 18 PageID#
`1942
`
`It is also inconceivable that Google paid expensive, outside, New York-based litigation
`
`counsel to participate in a purely objective exercise. See Virginia Rules of Professional Conduct,
`
`Preamble (“As advocate, a lawyer zealously asserts the client’s position under the rules of the
`
`adversary system.”); Fed. Election Comm’n, 178 F.R.D. at 459-60. That inference fails, for
`
`example, in view of the fact that Google chose to bring fact-specific, case dispositive motions
`
`(e.g., on infringement and validity (August 5, 2024)) before this Court. And that it did not move
`
`to transfer until later (November 4, 2024). SoundClear has little doubt that internal
`
`communications would demonstrate a strategic bent to most of Google’s actions before this
`
`Court—as one would expect from litigation counsel.
`
`Any finding or conclusion based on that testimony from Google’s outside litigation
`
`counsel should be stricken.
`
`B.
`
`Legal Error
`
`1.
`
`Failure to Apply Subject Matter Waiver Regarding Outside Litigation
`Counsel’s Investigation in this Case
`
`The Order acknowledged that the way Google’s outside litigation counsel conducted its
`
`investigation was privileged: “SoundClear largely seeks privileged information about the way
`
`Google’s attorneys conducted their investigation and information beyond what courts require to
`
`consider a motion to transfer venue.” Order, p. 3. Google agreed. Ex. 1, 11:14-18.
`
`But the Court made the opposite determination when questioning that same counsel on
`
`that same issue at the Hearing. The Court affirmatively asked Google’s outside litigation counsel
`
`at Paul Hastings how they conducted the investigation. The Court did so to address the question
`
`of whether the investigation was objective—as opposed to, for example, an advocacy-based
`
`attempt to gather factual support to argue in favor of Google’s preferred forum:
`
`7
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 82 Filed 03/14/25 Page 12 of 18 PageID#
`1943
`
`SoundClear Counsel
`If you would just indulge
`me maybe for a minute on
`a hypothetical. . . .
`
`
`Ex. 1, 7:14-8:6 (describing a
`scenario in which the
`investigation was designed
`solely to elicit facts
`supporting Google’s motion).
`
`
`MR. REYNOLDS: And if I
`could respond very briefly
`when you say “What we
`don’t have access
`to.”
`When
`they mention
`“investigation”,
`those
`declarations rely on it. We
`have zero access to what
`that investigation was.
`
`Id. 10:4-7.
`
`the Court
`THE COURT: Okay. Well,
`let me -- Ms. Bratton, do
`you want to just respond to
`the hypothetical? Was there
`any attempt to tilt the scale
`in favor of the Northern
`District of California when
`you went
`looking
`for
`people working on this
`product?
`
`Id. 10:11-15 (emphasis
`added).
`
`Google Counsel
`MS. BRATTON: Thank
`you, Your Honor. May it
`please the Court. No, there
`was no attempt to tilt the
`scale whatsoever. I think,
`as
`has
`already
`been
`discussed,
`how
`the
`investigation proceeded is
`clear, . . . . Google took
`that, with no commentary,
`with
`no
`decision
`of
`whether that was accurate,
`whether these things did
`what SoundClear claim
`that they did, and they used
`that as the scope and the
`basis for the investigation.
`And then it went and asked
`engineers to help support
`where individuals likely to
`have material information
`about
`those
`accused
`features are located. And
`that’s
`the
`investigation.
`That’s what’s
`in
`the
`declarations.
`
`
`Id. 10:16-11:5 (emphasis
`added).
`
`
`The above testimony by Google’s counsel is an opinion. And it constitutes a subject
`
`matter waiver. Ex. 1, 12:19-21 (SoundClear arguing that subject matter of testimony cannot be
`
`privileged). Moments after providing that testimony, Google’s counsel admitted that her
`
`testimony fell within the scope of privilege:
`
`MS. BRATTON: . . . And I’d like to talk about privileged information first.
`
`I think SoundClear admits throughout its briefing and also today that it
`intends to ask Google declarants for privileged information. They admit that they
`will ask how and why the declarants conducted their investigations, and that’s
`simply not proper.
`
`8
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 82 Filed 03/14/25 Page 13 of 18 PageID#
`1944
`
`Ex. 1, 11:12-18 (emphasis added).
`
`
`No party contests that Google asserted a privilege over how its outside litigation counsel
`
`conducted its investigation. Thus, there has been at least a subject matter waiver of privilege.
`
`And SoundClear is entitled to discovery covering the scope of that waiver. Indeed, subject matter
`
`waivers apply to ultimate conclusions of investigations conveyed by counsel. In re EchoStar
`
`Commc’ns. Corp., 448 F.3d 1294, 1299 (Fed. Cir. 2006) (subject matter waiver applied to “the
`
`opinion formed by in-house counsel and conveyed to EchoStar executives, although not a
`
`traditional opinion of counsel, constituted a legal opinion”); In re Royal Ahold N.V. Sec. & ERISA
`
`Litig., 230 F.R.D. 433, 437 (D. Md. 2005) (“offensively” disclosing information “pertaining to its
`
`internal investigation” amounted to waiver).
`
`In sum, this Court should find that a subject matter waiver has occurred, overrule the
`
`Order, and allow discovery into the factual basis supporting the opinion testimony by Google and
`
`its outside litigation counsel.
`
`2.
`
`Lack of Authority to Render a Finding Related to the Motion to
`Transfer Based Upon Privileged Information
`
`As stated above, the scope of the referral was limited to SoundClear’s Venue Discovery
`
`Motion. The Magistrate Judge, however, appeared to make a factual finding related to Google’s
`
`MTT:
`
`I will say that Google’s litigated here. I mean, Google doesn’t seek to move every
`case that is filed against it here. So the fact that Google was responsible for this
`investigation doesn’t bring with it any special skepticism by the Court, because it’s
`been here before. It’s litigated here before. If a case is appropriate to litigate here,
`they will litigate it here. And in this case, they don’t believe it’s appropriate. It
`remains to be seen whether the Court agrees with them.
`
`Ex. 1, 14:6-14 (emphasis added); see also id. at 9:17-23 (inquiring about SoundClear’s physical
`
`presence in this District). The written Order incorporates the findings and conclusions rendered
`
`at the hearing.
`
`9
`
`

`

`Case 2:24-cv-00321-AWA-DEM Document 82 Filed 03/14/25 Page 14 of 18 PageID#
`1945
`
`That issue was not before the Court. Thus, the Magistrate acted outside the scope of his
`
`authority when rendering any finding or conclusion as to whether this case should be transferred.
`
`3.
`
`Failure to Address Whether Testimony Amounted to at Least Lay
`Opinions
`
`The Magistrate Judge determined that “SoundClear seeks limited discovery to search for
`
`evidence rebutting Google’s declarations.” Order, 2 (emphasis added). That is not the issue.
`
`SoundClear sought to contest the foundation for Google’s opinions. It did not seek to rebut any
`
`direct statement of fact.
`
`The Order did not mention or address the lay opinion issue. Fallon v. Colvin, No.
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`2:12cv423, 2013 U.S. Dist. LEXIS 139194, at *2 n.1 (E.D. Va. Sep. 25, 2013) (citing Ivy v. Sec’y
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`of Health & Human Servs., 976 F.2d 288, 289 (6th Cir. 1992) (requiring judges to consider the
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`“major, relevant, and well-articulated” arguments from parties). Those were the substantive
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`arguments that SoundClear presented prominently in its Venue Discovery Motion. See, e.g., Dkt.
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`70, p. 2-4, 8, 9 (Section “B. Examination on Foundation of Opinion Testimony”); Dkt. 72, p. 1-4,
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`6 (Section “E. Google Does Not Meaningfully Address the Hearsay or Opinion-Based Nature of
`
`the Declaration”), 12.
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`Instead, the Order addressed positions SoundClear expressly disclaimed: stating that it
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`did not seek to contest assertions of simple fact in the Declarations nor did it seek to assert fraud.
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`The Court acknowledged that characterizations based upon an investigation may be
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`opinions: “It may be an opinion that they did it -- you know, the degree to which they
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`investigated . . . .” Ex. 1, 5:6-8 (emphasis added). SoundClear disputed the evidentiary basis for
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`such opinions. But the Court did not address that evidentiary issue. The Court stated:
`
`but the declarants themselves are not offering statements of opinion; they’re saying
`this is a person who works for Google. This is a person who was involved in the
`accused features. This person works in California. Those are facts, they’re not --
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`and you’ve just said that you concede you have no evidence that they’re lying about
`it.
`Id. 5:8-13. SoundClear agrees on that latter point. Statements of simple fact—such as where a
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`person works or resides—are beyond dispute. SoundClear made clear that it only contested the
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`foundation for opinions, the Google Declarant’s attempts to summarize or characterize the results
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`of an investigation:
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`[W]hen they say these are most relevant teams absolutely is a statement of opinion.
`It’s lay opinion. Any conclusion or categorization of evidence is lay opinion. It has
`to be supported by foundation to be admissible. That’s the foundation that’s
`missing.
`Ex. 1, 9:2-7; see also id. 5:3-5 (“MR. REYNOLDS: . . . .those are unquestionably opinions or
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`conclusions, and under Fourth Circuit law they have to have foundation.”).
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`The Court responded by asserting that SoundClear was not denied access to certain facts.
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`Ex. 1, 9:8-17. But, again, that issue does not address whether statements summarizing or
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`characterizing the results of the investigation constitute opinions or not.
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`The Court then pivoted, confusingly, to an unrelated matter: whether SoundClear has a
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`physical office in Virginia:
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`THE COURT: . . . . But one of the things that jumped out at me was -- there were -
`- let me just ask you: Does SoundClear have a physical office in Virginia with
`employees who were reporting to duty in Virginia? Because that’s a fact they made
`about which -- I mean an allegation that they made about which they lack
`information and you are in a position to respond to that with fact, but I didn’t see
`any response. Is there --
`MR. REYNOLDS: No.
`
`THE COURT: -- a physical office where SoundClear employees are going to work in
`Reston, Virginia.
`Id. at 9:17-23.
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`Case 2:24-cv-00321-AWA-DEM Document 82 Filed 03/14/25 Page 16 of 18 PageID#
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`The extent of SoundClear’s contacts in this District related, at most, to Google’s MTT.
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`And it is certainly irrelevant to the evidentiary foundation supporting the opinions Google
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`offered.
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`The Magistrate Judge concluded by finding, implicitly, that every statement in Google’s
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`Declarations was a fact supported by necessary foundation. He did so without applying any
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`evidentiary standard. Felton, 1999 U.S. App. LEXIS 12081, at *7 (“Lay opinion testimony is
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`inadmissible absent an adequate factual foundation demonstrating a rational link between the
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`witness’ observations and her ultimate testimonial conclusions.”); Dkt. 70, p. 3, 8 (raising
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`hearsay and unsupported opinion issues); Dkt. 72, p. 6 (same).
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`Thus, the Order contradicts the rules of evidence. See, e.g., Rules 602, 701, and 801-803
`
`of the Federal Rules of Evidence. And the conclusions contained in it should be overruled.
`
`
`
`Dated: March 14, 2025
`
`
`
`
`
`Respectfully submitted,
`
`
`
`By: /s/ Chandran B. Iyer
`Ronald M. Daignault (pro hac vice)*
`Chandran B. Iyer (VA Bar No. 94100)
`Steven J. Reynolds (pro hac vice)*
`Shailendra Maheshwari (pro hac vice)*
`Kevin H. Sprenger (VA Bar No. 98588)
`Austin Ciuffo (pro hac vice)*
`Matthew R. Harkins (pro hac vice)*
`James Hatton (pro hac vice)*
`rdaignault@daignaultiyer.com
`cbiyer@daignaultiyer.com
`sreynolds@daignaultiyer.com
`smaheshwari@daignaultiyer.com
`ksprenger@daignaultiyer.com
`aciuffo@daignaultiyer.com
`mharkins@daignaultiyer.com
`jhatton@daignaultiyer.com
`DAIGNAULT IYER LLP
`8229 Boone Boulevard – Suite 450
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`Case 2:24-cv-00321-AWA-DEM Document 82 Filed 03/14/25 Page 17 of 18 PageID#
`1948
`
`Vienna, VA 22182
`Tel.: (202) 330-1666
`
`Attorneys for Plaintiff SoundClear Technologies
`LLC
`
`*Not admitted to practice in Virginia
`
`
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`Case 2:24-cv-00321-AWA-DEM Document 82 Filed 03/14/25 Page 18 of 18 PageID#
`1949
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`CERTIFICATE OF SERVICE
`
`I certify that on March 14, 2025, I electronically filed the foregoing with the Clerk of
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`Court using the CM/ECF system, which will then send a notification of such filing (NEF) to all
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`counsel of record.
`
`
`
`
`
`By:
`
`
`/s/ Chandran B. Iyer
`Chandran B. Iyer (VA Bar No. 94100)
`cbiyer@daignaultiyer.com
`DAIGNAULT IYER LLP
`8229 Boone Boulevard – Suite 450
`Vienna, VA 22182
`Tel.: (202) 330-1666
`
`Attorney for Plaintiff SoundClear Technologies LLC
`
`14
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`