Data Scape Limited v. Dropbox, Inc.

Western District of Texas, txwd-6:2019-cv-00023

Affidavit Declaration of Gregory Lantier

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION DATA SCAPE LTD., Civil Action No. 6:19-cv-00023 Plaintiff, v. DROPBOX, INC., Defendant. SECOND DECLARATION OF GREGORY H. LANTIER IN SUPPORT OF DROPBOX'S MOTION TO TRANSFER VENUE TO THE NORTHERN DISTRICT OF CALIFORNIA I, Gregory H. Lantier, hereby declare: 1. I am an attorney admitted to practice in the District of Columbia, the State of New York, and the State of Virginia, and have been admitted pro hac vice in this action. I am a partner at the law firm of Wilmer Cutler Pickering Hale and Dorr LLP ("WilmerHale"), counsel for Defendant Dropbox Inc. ("Dropbox") in the above-captioned action. I provide this declaration in support of Dropbox's Motion to Transfer Venue. 2. Unless otherwise indicated below, the statements in this declaration are based on my personal knowledge and my review of the documents cited herein. If called to testify as a witness, I could and would competently do so under oath. 3. We conducted an investigation of LinkedIn profiles to approximate how many profiles of Dropbox former and current employees in the San Francisco Bay Area include the word "sync" in association with work at Dropbox. This entailed selecting Dropbox as a past or current company, selecting San Francisco as the location, and including "sync" as a keyword search. A true and correct copy of the search results are attached as Exhibit 1. We then reviewed each profile and eliminated those employees who used "sync" to describe a non- Dropbox job or only in the colloquial sense. This approach resulted in 43 LinkedIn profiles. 4. In its Opposition, Data Scape lists Rachel Belkin and Edgar Aguillon as current Dropbox employees likely to testify in this case. Ms. Belkin is an account executive who sells all Dropbox Enterprise products (see Opp., Ex. B) with no specific responsibility for Smart Sync. Similarly, Mr. Aguillon is a customer support agent (see Opp., Ex. A) with no specific responsibility for Smart Sync. Further, I am informed that Mr. Aguillon will transfer to Dropbox's San Francisco office on May 20, 2019. 5. Data Scape also identifies Mike Roeder, Alex Carp, Drew Betzer, and Meghan Sayers as former Dropbox employees likely to testify in this case. An Internet search I performed returns numerous news articles stating that Mr. Roeder passed away as the result of a car accident in January 2018. See, e.g., https://cbsaustin.com/news/local/victim-in-fatal-bee- cave-crash-identified (last visited May 14, 2019). This and other articles appear on the first page of hits of a Google search for "Michael Roeder Dropbox" (https://www.google.com/search?rlz=1C1GGRV_enUS817US817&ei=pk3bXIC1M8u10PEPgPu PEPg&q=michael+roeder+dropbox&oq=michael+roeder+dropbox&gs_l=psy- ab.3...13659.15185..15881...0.0..0.178.1169.0j8......0....1..gws- wiz.......0j0i22i30j33i160.rCAeealI0j4.) 6. Mr. Carp's LinkedIn profile states that he left Dropbox in August 2018. See Opp., Ex. C. 7. As shown in their LinkedIn Profiles, Mr. Betzer and Ms. Sayers, like Ms. Belkin, were account executives with no specific responsibility for Smart Sync. Neither is an employee of Dropbox. See Opp., Exs. E, F. 8. Attached as Exhibit 2 is a true and correct copy of the LinkedIn profile of Ben Newhouse, also available at https://www.linkedin.com/in/ben-newhouse-3102253/ (last visited May 15, 2019). 9. Attached as Exhibit 3 is a list of the eleven patent cases handled by Russ August & Kabat ("RAK") that went to trial, available at https://compass.docketnavigator.com/patent/firm/31145/12 (last visited May 14, 2019). In six of these cases, RAK was still counsel at the time of trial, and in all six cases RAK represented the plaintiff. In none of these six cases did either party call any patent prosecution or assignment witnesses. In fact, RAK has rarely called third-parties aside from experts and inventors of the asserted patents. The witnesses from the accused infringer have typically comprised (1) corporate representatives, (2) current employee engineers1, and (3) heads of marketing and sales (not individual account executives, account managers, or customer support personnel). True and correct copies of these witness lists are attached as Exhibit 4. 10. Attached as Exhibit 5 is a true and correct copy of a printout from Google Maps showing travel time from Katonah, New York (see Padian Decl. ¶ 2) and Waco, Texas, also available at https://www.google.com/maps/dir/Katonah,+NY/Waco,+TX/@36.0655134,- 94.4173353,5z/data=!3m1!4b1!4m14!4m13!1m5!1m1!1s0x89c2b04ef939baf1:0x74f23c5b212e e3e7!2m2!1d- 73.6854137!2d41.2587043!1m5!1m1!1s0x864f82f1230151d3:0xfbd74b03d6d1aa10!2m2!1d- 97.1466695!2d31.549333!3e4 (last visited May 15, 2019). 1 In one case, RAK represented that it "may call" one former engineer of the accused infringer. 11. Attached as Exhibit 6 is a true and correct copy of a printout from Google Maps showing travel time from Katonah, New York to San Francisco, California, also available at https://www.google.com/maps/dir/Katonah,+NY/San+Francisco,+CA/@37.1347716,- 116.073956,4z/data=!4m14!4m13!1m5!1m1!1s0x89c2b04ef939baf1:0x74f23c5b212ed3e7!2m2 !1d- 73.6854137!2d41.2587043!1m5!1m1!1s0x80859a6d00690021:0x4a501367f076adff!2m2!1d- 122.4194155!2d37.7749295!3e4 (last visited May 15, 2019) 12. Attached as Exhibit 7 is a Docket Navigator webpage showing the average time to trial in patent cases in the Western District of Texas, available at https://compass.docketnavigator.com/patent/court/225/1 (last visited May 14, 2019). 13. Attached as Exhibit 8 is a Docket Navigator webpage showing the average time to trial in patent cases in the Northern District of California, available at https://compass.docketnavigator.com/patent/court/8/1 (last visited May 14, 2019). I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed on May 15, 2019. Gregory H. Lantier