Data Scape Limited v. Box, Inc.

Western District of Texas, txwd-6:2019-cv-00025

Opposed MOTION to Change Venue to the Northern District of California by Box, Inc.

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6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION DATA SCAPE LIMITED, Plaintiff, Civil Action No. 6:19-CV-00025-ADA v. BOX, INC., Defendant. DEFENDANT BOX, INC.'S MOTION TO TRANSFER VENUE TO THE NORTHERN DISTRICT OF CALIFORNIA 6 TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................. 1 II. STATEMENT OF FACTS ................................................................................................ 1 A. The Vast Majority of Key Witnesses and Evidence Are Located in the Northern District of California, and None Are in This District. ............................ 1 1. Box's Relevant Evidence Is All in the Northern District of California. .................................................................................................. 1 2. Numerous Third Party Witnesses Reside in the Northern District of California; None Reside in this District. .................................................... 3 3. Data Scape Has No Significant Connection to this District. ..................... 4 III. THIS CASE SHOULD BE TRANSFERRED TO THE NORTHERN DISTRICT OF CALIFORNIA ............................................................................................................. 5 A. This Action Could Have Been Brought in the Northern District of California. .............................................................................................................. 5 B. The Private Factors Weigh Strongly in Favor of Transfer. ................................... 5 1. The Sources of Proof Are Most Easily Accessed in the Northern District of California. ................................................................................. 5 2. Many Non-Party Witnesses Are Within the Subpoena Power of the Northern District of California District Court. .......................................... 6 3. Willing Witnesses Can Attend Trial Much More Easily in the Northern District of California than in This District. ................................ 7 4. Practical Issues Arising From Data Scape's Lawsuits Are Neutral. .......... 8 C. The Public Interest Factors Also Weigh in Favor of Transfer ............................... 9 IV. CONCLUSION ................................................................................................................ 10 i. 6 TABLE OF AUTHORITIES Page(s) Cases Adaptix, Inc. v. HTC Corp., 937 F. Supp. 2d 867 (E.D. Tex. 2013) .......................................................................................7 Affinity Labs. of Tex., LLC v. BlackBerry Ltd., No. 6:13-CV-362, 2014 WL 10748106 (W.D. Tex. June 11, 2014) .........................................7 Chrimar Sys., Inc., v. Juniper Networks, Inc., Nos. 6:15CV618, -630, 2016 WL 126936 (E.D. Tex. Jan. 11, 2016) .......................................8 Data Scape Ltd. v. Amazon Digital Servs., No. 1:19-cv-00056 (D. Col.) ......................................................................................................4 Data Scape Ltd. v. Apple Inc., No. 2:18-cv-10659 (C.D. Cal.) ..................................................................................................4 Data Scape Ltd. v. Barracuda Networks, Inc., No. 1:19-at-00100 (E.D. Cal.) ...................................................................................................4 Data Scape Ltd. v. Box, Inc., No. 6:19-cv-00025 (W.D. Tex.).................................................................................................4 Data Scape Ltd. v. Citrix Sys., Inc., No. 2:18-cv-10658 (C.D. Cal.) ..................................................................................................4 Data Scape Ltd. v. Dell Techs. Inc., No. 6:19-cv-00129 (W.D. Tex.).................................................................................................4 Data Scape Ltd. v. Dropbox, Inc., No. 1:19-cv-00048 (W.D. Tex.).................................................................................................4 Data Scape Ltd. v. F5 Networks, Inc., No. 1:19-cv-00064 (D. Col.) ......................................................................................................4 Data Scape Ltd. v. Fujitsu Am., Inc., No. 6:19-cv-00046 (E.D. Tex.) ..................................................................................................4 Data Scape Ltd. v. Pandora Media, Inc., No. 2:18-cv-10656 (C.D. Cal.) ..................................................................................................4 ii. 6 TABLE OF AUTHORITIES (cont'd) Page(s) Data Scape Ltd. v. PFU (EMEA) Ltd., No. 6:18-cv-00659 (E.D. Tex.) ..................................................................................................4 Data Scape Ltd. v. SAP Am., Inc., No. 6:18-cv-00660 (E.D. Tex.) ..................................................................................................4 Data Scape Ltd. v. Spotify USA Inc., No. 2:18-cv-10653 (C.D. Cal.) ..................................................................................................4 Data Scape Ltd. v. Teradata Operations, Inc., No. 2:19-cv-01002 (C.D. Cal.) ..................................................................................................4 Data Scape Ltd. v. Verizon Commc'ns Inc., No. 6:19-cv-00174 (W.D. Tex.).................................................................................................4 Data Scape Ltd. v. Western Dig. Corp., No. 8:18-cv-02285 (C.D. Cal.) ..................................................................................................4 In re Genentech, Inc., 566 F.3d 1338 (Fed. Cir. 2009)......................................................................................5, 6, 7, 8 Kleiner v. Sw. Airlines Co., No. 5:08-cv-00218, 2008 WL 4890590 (W.D. Tex. Nov. 4, 2008) ..........................................7 In re Nintendo Co., Ltd., 589 F.3d 1194 (Fed. Cir. 2009)..........................................................................................1, 5, 8 On Semiconductor Corp. v. Hynix Semiconductor, Inc, No. 6:09-cv-390, 2010 WL 3855520 (E.D. Tex. Sept. 30, 2010)..............................................8 In re TS Tech USA Corp., 551 F.3d 1315 (Fed. Cir. 2008)................................................................................................10 Uniloc USA Inc. v. Box, Inc., No. 1:17-cv-754-LY, 2018 WL 2729202 (W.D. Tex. June 6, 2018) .............................. passim In re Volkswagen of Am., Inc., 545 F.3d 304 (5th Cir. 2008) .................................................................................................5, 8 Wireless Recognition Techs. LLC v. A9.com, Inc., Nos. 2:10-cv-364, -365, -577, -578, 2012 WL 506669 (E.D. Tex. Feb. 15, 2012) ..........................................................................................................................................9 iii. 6 TABLE OF AUTHORITIES (cont'd) Page(s) In re Zimmer Holdings, Inc., 609 F.3d 1378 (Fed. Cir. 2010)..................................................................................................9 Statutes 28 U.S.C. § 1400(b) ....................................................................................................................................5 § 1404(a) ..........................................................................................................................1, 5, 10 Other Authorities https://www.uscourts.gov/statistics/table/c-5/statistical-tables-federal- judiciary/2018/12/31 (last visited April 25, 2019) .....................................................................9 iv. 6 Defendant Box, Inc. ("Box") respectfully moves to transfer this action to the Northern District of California pursuant to 28 U.S.C. § 1404(a). I. INTRODUCTION This patent case belongs in the Northern District of California, the location of the key relevant witnesses, evidence, and activity. Box's Northern California headquarters is the strategic center of Box's business. Box's management, research and development, and engineering for all of its accused products are all located there. All of Box's executives and likely witnesses with knowledge about the technology, sales, and marketing of the accused products work there. Numerous former Box employees who designed, developed, and managed the accused products are also located within the Northern District of California courts' subpoena power. By contrast, this case has no meaningful connection with the Western District of Texas. Plaintiff Data Scape Limited ("Data Scape") is a foreign entity based in Ireland with no presence in this District. Its only apparent function is to file patent lawsuits, including seven cases it filed in California on the same patents-in-suit. Box has a regional office located in Austin, but none of its witnesses, evidence, or design or development work are located there. It is well-settled that where "most witnesses and evidence [are] closer to the transferee venue with few or no convenience factors favoring the venue chosen by the plaintiff, the trial court should grant a motion to transfer." In re Nintendo Co., Ltd., 589 F.3d 1194, 1198 (Fed. Cir. 2009). The last time a non-practicing patent assertion entity sued Box in this District, the court correctly transferred the case to the Northern District of California. Uniloc USA Inc. v. Box, Inc., No. 1:17- cv-754-LY, 2018 WL 2729202 (W.D. Tex. June 6, 2018). This Court should reach the same result. II. STATEMENT OF FACTS A. The Vast Majority of Key Witnesses and Evidence Are Located in the Northern District of California, and None Are in This District. 1. Box's Relevant Evidence Is All in the Northern District of California. Box's corporate headquarters is in Redwood City, California, in the Northern District of California. Declaration of Joely Urton ("Urton Decl.") ¶ 3. Box's CEO, CFO, COO, Chief 1 6 Marketing Officer, and other senior financial, technical, marketing, and creative executives are all based in Redwood City, where all of the most significant engineering, financial, and marketing decisions are made. Id. ¶ 4. Approximately 1,000 Box employees work there, including executives, engineers, product managers, and staff. Id. ¶ 5. The allegedly infringing products identified in Data Scape's Complaint (see Dkt. No. 1, ¶¶ 7, 26, 43, 61) – Box Platform, Box for Enterprise/Business, Box for Individuals and Teams, Box Drive, and Box Sync (together the "Accused Box Products") – were primarily designed and developed in the Northern District of California. Id. ¶ 6. None was done in Texas. Id. ¶ 13. All technical, marketing, and sales functions related to these accused products are managed out of Box's Northern California headquarters. Id. The Box employees with the most knowledge regarding the development, function, operation, marketing, and sale of the Accused Box Products all work at Box's Northern California headquarters. Id. ¶¶ 7-10. These employees include numerous likely witnesses in this case with relevant technical knowledge about the Accused Box Products, specifically including Jeff Queisser (Senior Vice President of Engineering), Denali Lumma (Director of Engineering for Enterprise Group), Claudio Bartolini (Software Architect), Ibrahim Bashir (Senior Director, Product), and Jeremy Chiu (Software Engineering Manager). Id. ¶¶ 8, 15, 16, 17. Box's employees in Northern California also include likely witnesses with relevant knowledge about marketing, sales, and financial information for the Accused Box Products, including Joely Urton (Vice President, Analyst Relations and Market Intelligence) and Jeff Mannie (Controller and Chief Accounting Officer). Id. ¶¶ 9-10. Numerous former Box employees with relevant knowledge about the accused products are also located in the Northern District of California, as discussed further below. Likewise, the relevant documents relating to the Accused Box Products, including technical documentation, computer source code, sales, marketing, financial, and other business information, are located in the Northern District of California or stored by third-party services that are managed from Box's headquarters. Id. ¶ 11. 2 6 While Box has an office in Austin, Texas, none of the design or development of any Box product or service has ever taken place there. Id. ¶ 13. Significantly, all functions of the Austin office are managed out of Box's headquarters in the Northern District of California. Id. ¶ 14. Most of the employees in Box's Austin office are entry level customer success or sales workers. Id. ¶ 13. None of the Box executives or employees most knowledgeable regarding the development, function, operation, marketing, or sale of the Accused Box Products are located in Texas. Id. ¶ 7. All of the electronic documents generated in the Austin office are located in Box data centers in Northern California or on third-party services managed from Box's headquarters. Id. ¶ 11. 2. Numerous Third Party Witnesses Reside in the Northern District of California; None Reside in this District. Numerous third-party individuals – former Box employees – with knowledge about the Accused Box Products reside in the Northern District of California. For the accused Box Sync product, none of the members of the initial development team remain at Box, but all three still reside in Northern California: Satish Asok (original Technical Lead responsible for managing and overseeing its development), Griffin Dorman (prior Product Manager responsible for rebuilding the product from scratch and prioritizing all engineering and user experience requirements), and Arnold Goldberg (VP of Engineering who led and scaled engineering efforts for Box Sync). Urton Decl., ¶ 15; Declaration of Heidi Keefe ("Keefe Decl."), Exs. A-C. Furthermore, Box's former engineering manager for Box Sync, Matthew Self, recently left Box and remains resident in Northern California. Urton Decl., ¶ 15; Keefe Decl., Ex. D. Similarly, the original developers of the accused Box Drive product no longer work for Box but still work in Northern California: Ritik Malhortra (original Product and Engineering Lead), Tanooj Luthra (original Staff Software Engineer), Sarat Ravi (original Senior Software Engineer), and Neal Wu (Software Engineer). Urton Decl., ¶ 16; Keefe Decl., Exs. E-H. Finally, the former Project Management Lead for Box for Individuals and Teams during its development, Ketki Warudkar, likewise no longer works for Box but still works in Northern California. Urton Decl., ¶ 17; Keefe Decl., Ex. I. 3 6 3. Data Scape Has No Significant Connection to this District. Data Scape has no meaningful connection with this District. It is a non-practicing entity based in Dublin, Ireland with no apparent presence in Texas. Dkt. No. 1 (Complaint), ¶ 1. None of Data Scape's known personnel reside in this District; they are based in Ireland, New York, and Connecticut. Keefe Decl., Exs. J-M. Data Scape does not appear to conduct any activity in this District other than filing lawsuits. Through its California-based counsel, Data Scape has filed numerous lawsuits asserting the patents-in-suit across the country, including seven cases filed in California,1 and in the ITC and overseas. Data Scape has avoided filing any cases in the Northern District of California despite suing many companies headquartered there,2 and four other defendants have already filed motions to transfer to the Northern District of California (Dropbox, Apple, Amazon, and F5 Networks). Data Scape has filed three other actions in this District, but one (against Dropbox) is subject to a pending motion to transfer to the Northern District of California, the second (against Dell) is subject to a pending intra-district transfer motion, and the third (against Verizon) is stayed pending ITC proceedings.3 The four patents-in-suit also have no apparent connection to this District. The patent applications that resulted in the patents-in-suit originated from Sony Corporation in Tokyo, Japan. Dkt. No. 1, Exs. A-D; Keefe Decl., Exs. T-W. The four named inventors on the patents-in-suit all appear to be Japanese nationals resident in Japan. Dkt. No. 1, Exs. A-D. 1 Data Scape Ltd. v. Spotify USA Inc., No. 2:18-cv-10653 (C.D. Cal.); Data Scape Ltd. v. Pandora Media, Inc., No. 2:18-cv-10656 (C.D. Cal.); Data Scape Ltd. v. Citrix Sys., Inc., No. 2:18-cv- 10658 (C.D. Cal.); Data Scape Ltd. v. Apple Inc., No. 2:18-cv-10659 (C.D. Cal.); Data Scape Ltd. v. Western Dig. Corp., No. 8:18-cv-02285 (C.D. Cal.); Data Scape Ltd. v. Teradata Operations, Inc., No. 2:19-cv-01002 (C.D. Cal.); Data Scape Ltd. v. Barracuda Networks, Inc., No. 1:19-at- 00100 (E.D. Cal.); Data Scape Ltd. v. Dell Techs. Inc., No. 6:19-cv-00129 (W.D. Tex.); Data Scape Ltd. v. PFU (EMEA) Ltd., No. 6:18-cv-00659 (E.D. Tex.); Data Scape Ltd. v. SAP Am., Inc., No. 6:18-cv-00660 (E.D. Tex.); Data Scape Ltd. v. Fujitsu Am., Inc., No. 6:19-cv-00046 (E.D. Tex.); Data Scape Ltd. v. Dropbox, Inc., No. 1:19-cv-00048 (W.D. Tex.); Data Scape Ltd. v. Dell Tech. Inc., No. 6:19-cv-00129 (W.D. Tex.); Data Scape Ltd. v. Verizon Commc'ns Inc., No. 6:19-cv-00174 (W.D. Tex.); Data Scape Ltd. v. Box, Inc., No. 6:19-cv-00025 (W.D. Tex.); Data Scape Ltd. v. F5 Networks, Inc., No. 1:19-cv-00064 (D. Col.); Data Scape Ltd. v. Amazon Digital Servs., No. 1:19-cv-00056 (D. Col.). 2 Defendants sued by Data Scape and headquartered in Northern California include Box, Dropbox, Apple, Western Digital, Barracuda Networks, and Pandora Media. Keefe Decl. Exs. N-S. 3 Case Nos. 1:19-cv-00048 (Dropbox); 6:19-cv-00129 (Dell); 6:19-cv-00174 (Verizon). 4 6 III. THIS CASE SHOULD BE TRANSFERRED TO THE NORTHERN DISTRICT OF CALIFORNIA Transfer is appropriate "[f]or the convenience of parties and witnesses, in the interest of justice" to any district "where it might have been brought." 28 U.S.C. § 1404(a). The Fifth Circuit considers "private" and "public" factors in determining whether transfer under Section 1404(a) is warranted, the private factors being "(1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make a trial easy, expeditious and inexpensive," and the public factors being "(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflicts of laws [or in] the application of foreign law." In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (brackets in original) ("Volkswagen II"). The plaintiff's choice of forum is not a factor in this analysis. In re Nintendo, 589 F.3d at 1200 (applying Fifth Circuit law). The relevant factors in this case strongly support transfer to the Northern District of California. A. This Action Could Have Been Brought in the Northern District of California. This action could have been filed in the Northern District of California because Box offers the accused products and maintains headquarters there. 28 U.S.C. § 1400(b); Urton Decl., ¶¶ 3, 6. B. The Private Factors Weigh Strongly in Favor of Transfer. 1. The Sources of Proof Are Most Easily Accessed in the Northern District of California. The first factor, ease of access to sources of proof, weighs heavily in favor of transfer. The relevant sources of proof from Box and third-parties – including key witnesses and critical evidence – are located in, and much more easily accessed in, the Northern District of California than in this District. By contrast, no known sources of relevant evidence are located in this District. Box's Sources of Proof. All of Box's sources of proof in this action are located in the Northern District, which strongly supports transfer. In re Genentech, Inc.,566 F.3d 1338, 1345 (Fed. Cir. 2009) (because "the bulk of the relevant evidence usually comes from the accused 5 6 infringer. . . the place where the defendant's documents are kept weighs in favor of transfer to that location."); Uniloc, 2018 WL 2729202, *2 (same). Box maintains its headquarters in Northern California and manages all of its operations there. Box's likely employee witnesses, including at least the seven individuals identified previously, and all of its relevant hard-copy and electronic- copy documents are based in Northern California, and all relevant documents and source code are located there or managed from there. Urton Decl., ¶¶ 6-11, 15-17. See Uniloc, 2018 WL 2729202, at *3 ("Box's sources of proof, including paper documents, electronic documents, and human witnesses are all located in Northern California."). Data Scape's Sources of Proof. None of Data Scape's sources of proof are located in this District. It is based in Ireland, and its personnel are located in Ireland and on the East Coast. Indeed, Data Scape's California-based counsel has filed seven cases in California, confirming that it has no problem litigating in California. Third Party Sources of Proof. Numerous third-party witnesses reside in the Northern District of California and are thus accessible there. At least nine different key former Box employees who worked on the original design and development, user experience, and product management for the Accused Box Products no longer work for Box but still work in Northern California. Urton Decl., ¶¶ 15-17; Keefe Decl., Exs. A-I. The presence of all of these significant potential third party witnesses in Northern California further supports transfer.4 On balance, the heavy concentration of party witnesses, non-party witnesses, and evidence in the Northern District of California, versus no known witnesses or evidence in this District, strongly supports transfer. Uniloc, 2018 WL 2729202, at *3. 2. Many Non-Party Witnesses Are Within the Subpoena Power of the Northern District of California District Court. The second factor, the availability of compulsory process, further strongly favors transfer because the Northern District of California has absolute subpoena power over numerous potential 4 The named inventors and patent prosecutors appear to reside in Japan, Ireland, and the East Coast, all distant from this District and thus similarly inconvenient as between this District and the Northern District of California. In re Genentech, 566 F.3d at 1345. 6 6 non-party witnesses. Because the Accused Box Products were designed, developed, and commercialized in Northern California, "[i]t is foreseeable that a number of [Box's] former officers and employees, many of whom likely reside in [Northern California], may be called upon to testify." See Kleiner v. Sw. Airlines Co., No. 5:08-cv-00218, 2008 WL 4890590, at *4 (W.D. Tex. Nov. 4, 2008). Consistent with this observation, at least nine former Box employees who worked on the original design, development, and management of the Accused Box Products still work in Northern California, as discussed previously, and will thus be within the subpoena power of the district courts there. Urton Decl., ¶¶ 15-17. See also Uniloc, 2018 WL 2729202, at *3 ("The focus of this factor is not whether a witness may become an unwilling witness, or whether a court may need to invoke its subpoena power; rather, the focus is on the availability of process to secure attendance of a witness if need be.") (italics in original) (citing Volkswagen II, 545 F.3d at 316). In stark contrast, no known relevant third party witnesses are within this Court's subpoena power in the Western District of Texas. Accordingly, this factor weighs heavily in favor of transfer. See Adaptix, Inc. v. HTC Corp., 937 F. Supp. 2d 867, 874 (E.D. Tex. 2013) ("Transfer is favored when a transferee district has absolute subpoena power over a greater number of non-party witnesses [than the transferor district]."); Affinity Labs. of Tex., LLC v. BlackBerry Ltd., No. 6:13- CV-362, 2014 WL 10748106, at *5 (W.D. Tex. June 11, 2014) ("[T]his factor will weigh more heavily in favor of transfer when more third-party witnesses reside within the transferee venue.") (quoting Volkswagen II, 545 F.3d at 316); Uniloc, 2018 WL 2729202, at *3. 3. Willing Witnesses Can Attend Trial Much More Easily in the Northern District of California than in This District. The third factor, the cost of attendance for willing witnesses, also strongly favors transfer. "The convenience of the witnesses is probably the single most important factor in transfer analysis." In re Genentech, 566 F.3d at 1343 (internal quotation marks omitted). It is an "'obvious conclusion' that it is more convenient for witnesses to testify at home and that. . . additional travel time increases the probability for meal and lodging expenses; and additional travel time with 7 6 overnight stays increases the time which these fact witnesses must be away from their regular employment, family, and community." Volkswagen II, 545 F.3d at 317. Here, all of Box's likely party witnesses are located in Northern California, including at least seven named individuals with relevant knowledge. Urton Decl., ¶¶ 8-10. Furthermore, at least nine potential third-party witnesses (former Box employees) are also located in the Northern District, further favoring transfer. On Semiconductor Corp. v. Hynix Semiconductor, Inc, No. 6:09-cv-390, 2010 WL 3855520, at *6 (E.D. Tex. Sept. 30, 2010) ("Typically, the convenience of third-party witnesses is given greater weight than the convenience of party witnesses.").5 By contrast, no known likely witnesses for either party are located in the Western District of Texas. This factor therefore weighs heavily in favor of transfer. Uniloc, 2018 WL 2729202, at *3. Where, as here, "most witnesses and evidence [are] closer to the transferee venue with few or no convenience factors favoring the venue chosen by the plaintiff," it is well-settled that "the trial court should grant a motion to transfer." In re Nintendo, 589 F.3d at 1198. 4. Practical Issues Arising From Data Scape's Lawsuits Are Neutral. The final private factor, the practical issues of litigation, is neutral or inconsequential. This action is one of many involving some or all of the patents-in-suit, including seven cases in California. "[M]ultiple suits involving the same or similar issues may create practical problems that will weigh in favor of or against transfer." Uniloc, 2018 WL 2729202, at *4 (citations omitted). Here, this factor does not weigh significantly in the transfer analysis. While three other cases are pending in this District, one is stayed and the other two are subject to motions to transfer to the Northern District of California or to the Austin division, and none of those cases involves Box or the Box Accused Products. Furthermore, Data Scape's many lawsuit filings in California and elsewhere will already result in multiple courts addressing the same patents, and this Court has not yet had occasion to gain substantive familiarity with the patents. 5 Other potential third party witnesses, such as the named inventors, "will be traveling a great distance no matter which venue the case is tried in." In re Genentech, 566 F.3d at 1345; Chrimar Sys., Inc., v. Juniper Networks, Inc., Nos. 6:15CV618, - 630, 2016 WL 126936, at *4 (E. D. Tex. Jan. 11, 2016) ("The convenience of the named inventors, being located in Michigan, is neutral."). 8 6 Moreover, even if all of the pending litigation were in this District and there were no co- pending motions to transfer – none of which is the case – transfer would still be appropriate given that the convenience factors heavily favor transfer. In re Zimmer Holdings, Inc., 609 F.3d 1378, 1380-82 (Fed. Cir. 2010) (ordering transfer to a clearly more convenient venue despite co-pending action involving overlapping patent, given "the significance of having trial close to where most of the identified witnesses reside and where the other convenience factors clearly favor" transfer). In total, the four private interest factors overwhelmingly favor transfer. C. The Public Interest Factors Also Weigh in Favor of Transfer The public interest factors further favor transfer. Uniloc, 2018 WL 2729202, at *4. The first public interest factor, administrative difficulties flowing from court congestion, is either neutral or not significant. The court in Uniloc last year found that for patent cases, "the average time to trial in Northern California is marginally faster than in Western Texas." Uniloc, 2018 WL 2729202, *4. On the other hand, the court also noted that the overall average reported time to trial across all civil cases was somewhat faster in Western Texas, and accordingly found that this factor "only slightly" favored transfer. Id. However, since that ruling, the reported difference in time to trial for civil cases between the two districts has further narrowed.6 The second public factor, local interests in deciding local disputes, favors transfer. The Northern District of California has a local interest in this case because Box is headquartered and employs a thousand people there, Box's likely witnesses all reside there, the Accused Box Products were designed and developed there, and Box's reputation and conduct are implicated by this case. Wireless Recognition Techs. LLC v. A9.com, Inc., Nos. 2:10-cv-364, -365, -577, -578, 2012 WL 506669, at *6 (E.D. Tex. Feb. 15, 2012) (finding local interest factor weighs in favor of transfer when defendants are headquartered, develop the accused products, and employ a large number of people in the transferee venue). In contrast, the Western District of Texas has no significant 6 The Uniloc decision noted an average time difference of 20.8 months versus 26.1 months, which subsequently narrowed to 23.2 months versus 27.7 months. See Federal Judicial Center, Table C- 5, available at https://www.uscourts.gov/statistics/table/c-5/statistical-tables-federal- judiciary/2018/12/31 (last visited April 25, 2019). 9 6 connection to this case. Neither of the parties is headquartered there, and Data Scape has no employees or other presence there. Accordingly, the local interests in the Northern District of California are greater than in this District, and this factor weighs in favor of transfer. See In re TS Tech USA Corp., 551 F.3d 1315, 1321 (Fed. Cir. 2008). The final two factors, familiarity with the law and avoidance of problems of conflicts of law or application of foreign law, are neutral. Uniloc, 2018 WL 2729202, at *4. *** In sum, when all of the applicable private and public factors are considered, the Northern District of California is clearly a much more convenient and appropriate forum. This case focuses on accused products designed and developed in Northern California, the venue where Box is headquartered, where most of the likely party and non-party witnesses reside (totaling at least 16 named individuals), and where the key relevant evidence is maintained. By contrast, this case has no meaningful connection to the Western District of Texas, where no likely relevant witnesses or evidence are located. The relevant factors therefore overwhelmingly favor transfer. IV. CONCLUSION Because the Northern District of California is clearly a more convenient venue, Box respectfully requests that the Court transfer this action pursuant to 28 U.S.C. § 1404(a). 10 6 Respectfully submitted, Dated: May 3, 2019 /s/ Heidi L. Keefe Heidi L. Keefe (CA SBN 178960) hkeefe@cooley.com Reuben H. Chen (CA SBN 228725) rchen@cooley.com Lowell D. Mead (CA SBN 223989) lmead@cooley.com Lam K. Nguyen (CA SBN 265285) lnguyen@cooley.com Alexandra Leeper (CA SBN 307310) aleeper@cooley.com COOLEY LLP 3175 Hanover Street Palo Alto, CA 94304-1130 (650) 843-5000 Deron R. Dacus ddacus@dacusfirm.com The Dacus Firm, P.C. 821 ESE Loop 323, Suite 430 Tyler, TX 75701 (903) 705-1117 Attorneys for Defendant Box, Inc. CERTIFICATE OF CONFERENCE In accordance with Local Rule CV-7(i), counsel for the parties have conferred and Plaintiff is opposed to this Motion. /s/ Heidi L. Keefe Heidi L. Keefe CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document has been served on all counsel of record via the Court's ECF system on May 3, 2019. /s/ Heidi L. Keefe Heidi L. Keefe 11