Data Scape Limited v. Dropbox, Inc.

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

Response in Opposition to Motion, filed by Data Scape Limited, re {{32}} MOTION to Change Venue filed by Defendant Dropbox, Inc.

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2 UNITED STATES DISTRICT COURT IN THE WESTERN DISTRICT OF TEXAS WACO DIVISION DATA SCAPE LIMITED, C.A. No. 6:19-cv-00023-ADA Plaintiff, v. JURY TRIAL DEMANDED DROPBOX, INC., Defendant. PLAINTIFF DATA SCAPE LIMITED'S OPPOSITION TO DEFENDANT DROPBOX, INC.'S MOTION TO TRANSFER VENUE TO THE NORTHERN DISTRICT OF CALIFORNIA 2 TABLE OF CONTENTS I. INTRODUCTION ...............................................................................................................3 II. FACTUAL BACKGROUND ..............................................................................................4 III. LEGAL STANDARD ..........................................................................................................5 IV. ARGUMENT .......................................................................................................................6 A. The Private Interest Factors Weigh Against Transfer..............................................6 i. On balance, witnesses with relevant and material knowledge are more accessible in this District than in the Northern District of California ....................................................................................6 ii. The accessibility of documents in this District is similar to the accessibility of documents in the Northern District of California ...................................................................................................12 iii. The availability of compulsory process to secure attendance of witnesses is neutral ....................................................................................14 iv. The cost of attendance for willing witnesses is either indeterminate and or weighs against transfer.............................................15 v. Practical Concerns Weigh Against Transfer ...................................................16 B. The Public Interest Factors Weigh Against Transfer .............................................17 i. Administrative difficulties from court congestion weigh against transfer ...........................................................................................17 ii. Localized interests are neutral in the transfer analysis ...................................18 iii. Familiarity with governing law factor is neutral.............................................18 iv. Avoidance of conflict of laws factor is neutral ...............................................19 V. CONCLUSION ..................................................................................................................19 i 2 TABLE OF AUTHORITIES Cases Am. States Ins. Co. v. Andrews, No. 6:13-CV-865-JDL, 2014 WL 12601031 (E.D. Tex. Aug. 15, 2014) ............. 19 Auto-Dril, Inc. v. Pason Sys. USA Corp., No. 6:15-CV-00093, 2015 WL 12780779 (W.D. Tex. June 29, 2015) ................ 14 Barnes & Noble Booksellers, Inc. v. DDR DB SA Ventures, LP, No. CIV.A. SA05CA0002XR, 2005 WL 1279192 (W.D. Tex. May 5, 2005)..... 12 Casey on Behalf of RVNB Holdings, Inc. Employee Stock Ownership Plan v. Reliance Tr. Co., No. 4:18-CV-00424, 2018 WL 7138386 (E.D. Tex. Dec. 12, 2018) ................... 14 Healthpoint, Ltd. v. Derma Scis., Inc., 939 F. Supp. 2d 680 (W.D. Tex. 2013)................................................................. 14 In re EMC Corp., 501 F. App'x 973 (Fed. Cir. 2013) ....................................................................... 16 In re Genentech, Inc., 566 F.3d 1338 (Fed. Cir. 2009)............................................................................... 7 In re Volkswagen of Am., Inc., 545 F.3d 304 (5th Cir. 2008) .............................................................................. 3, 5 Odom v. Microsoft Corp., 596 F. Supp. 2d 995 (E.D. Tex. 2009) .................................................................. 13 Texas Data Co., LLC v. Target Brands, Inc., 771 F. Supp. 2d 630 (E.D. Tex. 2011) .................................................................... 5 Uniloc USA Inc. v. Box, Inc., No. 1:17-CV-754-LY, 2018 WL 2729202 (W.D. Tex. June 6, 2018).................. 17 United States v. Patel, No. 4:18CR127, 2018 WL 6274034 (E.D. Tex. Nov. 14, 2018) .......................... 12 ii 2 I. INTRODUCTION As the party seeking transfer, Dropbox, Inc. ("Dropbox")—a Delaware corporation—carries a heavy burden of demonstrating that the factors articulated by the Fifth Circuit in In re Volkswagen of Am., Inc., 545 F.3d 304, 314 (5th Cir. 2008) ("Volkswagen II") weigh in favor of transfer such that the Northern District of California would be "clearly more convenient" than the venue chosen by the plaintiff, Data Scape Limited ("Data Scape"). Dropbox has not and cannot meet this burden. The relevant factors either weight against transfer or are neutral at best. Although Data Scape is not a Texas company, its choice of forum in this District is nonetheless entitled to substantial deference because Data Scape selected this forum for legitimate reasons. First, Dropbox has a substantial presence in this District (indeed, Dropbox's largest office by personnel, aside from its headquarters in San Francisco, is located in this District); and, second, to host and transmit its customers' data in the United States, Dropbox uses and maintains a datacenter located in Texas. Further, Dropbox is a large, multi-national corporation that provides infringing services all over the world, including to customers in this District. With respect to the potential sources of evidence, Dropbox has failed to specifically identify any Dropbox employee or document that cannot be produced in this District. Neither has Dropbox explained why it could not produce the source code for the accused features in this District, such as at its Austin office or those of its litigation counsel. And although Dropbox has identified two of its former employees as potential third-party witnesses, neither witness appears to be essential (or even particularly important) to the case such that their presence would be required at trial in this District. 3 2 Moreover, as set forth below, Data Scape has identified numerous Dropbox employees (and former employees) located in this District who are likely to have relevant knowledge of the accused data synchronization features. Transferring this case from Data Scape's chosen venue to Dropbox's home forum would serve only to shift the inconvenience of litigation from Dropbox to Data Scape. Because Dropbox has failed to meet its burden to demonstrate that the Northern District of California would be a "clearly more convenient venue" for Data Scape's claims, the motion to transfer should be denied. II. FACTUAL BACKGROUND Data Scape is an Irish company. Its sole U.S. employee, Gerald Padian, resides in New York. Declaration of Gerald Padian ("Padian Decl.") ¶ 2. Data Scape asserts that Dropbox's products and services, including Dropbox Business, infringe certain patents that it owns by assignment. Dropbox is a Delaware corporation with its principal place of business in California. There is no dispute that Dropbox's accused instrumentalities are available world-wide and are sold and used in this District. Data Scape filed the complaint against Dropbox in the Waco division on January 25, 2019. There are three other suits pending in this District involving claims of infringement of at least some of the same patents: • Data Scape Limited v. Box, Inc., 6:19-cv-00025-ADA; • Data Scape Limited v. Dell Technologies, Inc., 6:19-cv-00129-ADA; and • Data Scape Limited v. Verizon Communications, Inc., 6:19-cv-00174-ADA. 4 2 The defendants in 6:19-cv-00129-ADA, Dell Technologies, Inc. and EMC Corporation, moved to transfer its case to the Austin division of this District on May 1, 2019. The defendant in 6:19-cv-00025-ADA, Box, Inc., filed a motion to transfer to the Northern District of California on May 3, 2019. The remaining case, 6:19-cv-00174, involving Verizon Communications, Inc., Cellco Partnership, and Verizon Connect, is presently stayed pending a related action against certain of the defendants filed by Data Scape in the International Trade Commission. III. LEGAL STANDARD To prevail on a motion to transfer under §1404(a), there is "a significant burden on the movant to show good cause for the transfer." Volkswagen II, 545 F.3d at 314 fn. 10; Texas Data Co., LLC v. Target Brands, Inc., 771 F. Supp. 2d 630, 638 (E.D. Tex. 2011) ("[T]he Court, in accordance with the Fifth Circuit, recognizes the significance of the burden and does not take it lightly"). Defendants "must satisfy the statutory requirements and clearly demonstrate that a transfer is '[f]or the convenience of parties and witnesses, in the interest of justice.'" Volkswagen II, 545 F.3d at 315. When the "transferee venue is not clearly more convenient than the venue chosen by the plaintiff, the plaintiff's choice should be respected." Id. at 314. To satisfy this significant burden, Defendants must show that the Northern District of California is a "clearly more convenient" forum than this District. Id. The determination of whether Defendants have met their significant burden involves consideration of various private and public interest factors. Id. The private interest factors include: (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 5 2 willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive. See id. at 315. The public interest factors include: (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 conflict of laws. Id. The factors are not exhaustive or exclusive, and no one factor "can be said to be of dispositive weight." Id. IV. ARGUMENT A. The Private Interest Factors Weigh Against Transfer i. On balance, witnesses with relevant and material knowledge are more accessible in this District than in the Northern District of California Dropbox's arguments regarding the sources of proof are based on incomplete characterizations and omissions of its operations in Texas. To begin, Dropbox identifies six of its employees as potential witnesses (Dkt. 32, at 8), three of whom Dropbox describes as "engineer[s]" who either are: (1) no longer part of the "team that manages Smart Sync" or were, by Dropbox's own description, merely (2) "member[s] of the initial development team for Smart Sync." Id. Dropbox submits no other information about these three engineers, including, for instance, their current responsibilities at Dropbox or the nature and scope of their previous involvement with the accused Smart Sync feature. Indeed, Dropbox appears to have not identified any software developers or engineers who are currently responsible for the accused Smart Sync feature. 6 2 A fourth employee, Emily Silberstein, is described by Dropbox as a "group product manager with responsibility for Smart Sync" (id.), but the relevance of her testimony is otherwise left unexplained, which, in turn, makes it difficult to "assess the relevance and materiality of the information the witness may provide." In re Genentech, Inc., 566 F.3d 1338, 1343 (Fed. Cir. 2009). And between the fifth and sixth party witnesses identified by Dropbox, who appear to be offered for financial and marketing topics, Dropbox provides no description whatsoever about their relevance in the context of the accused instrumentalities in this case. Dropbox leaves the Court with only the bare assertion, through its party declarant, that "likely Dropbox witnesses in this action having technical, marketing, and financial knowledge of the accused features are located at Dropbox's San Francisco headquarters." Dkt. 32-1, ¶ 6. Unsurprisingly, Dropbox downplays the importance of its presence in this District and its relevance to the accused instrumentalities. But Data Scape has identified multiple current and former Dropbox employees who are likely to have relevant and material knowledge for the claims and defenses in this case. For example, listed below are two Dropbox employees located in this District who appear, from publicly available documents, to possess relevant knowledge about the accused instrumentalities: Name Dropbox Role Current Relevant Knowledge Location Edgar Product Operations Austin, Technical operation of Dropbox's Aguillon Supportability Lead Texas desktop sync and mobile app clients; customer demand for the accused instrumentalities Rachel Senior Enterprise Austin, Sales and marketing of the Belkin Sales Manager Texas accused instrumentalities generally, and specifically for customers in the Eastern and Central U.S. geographic regions; customer demand for the accused 7 2 instrumentalities See Declaration of Paul A. Kroeger ("Kroeger Decl.") ¶¶ 2–3 (attaching and describing relevant LinkedIn profiles), Exs. A–B1. Edgar Aguillon, a Product Operations Supportability Lead at Dropbox, has worked for Dropbox for more than five years and appears to have extensive knowledge and experience with, among other things, identifying and resolving technical and other customer issues related to Dropbox's "Desktop sync client" and "mobile app"—both of which fall within the scope of the accused instrumentalities in this case. Ex. A, at 1–2. Mr. Aguillon is also likely to have extensive knowledge about the accused data synchronization (i.e., "cloud storage") features, which have constituted the core components of Dropbox's products since the company's founding. See id. Rachel Belkin, who has been a Senior Enterprise Sales Manager at Dropbox since February 2017, appears to be responsible for Dropbox's sales strategy for the Eastern and Central United States geographic regions. Ex. B, at 1–2. Ms. Belkin is likely to have relevant and material knowledge about Dropbox's sales and marketing of the accused instrumentalities, including the accused Smart Sync feature, which is featured prominently on Ms. Belkin's LinkedIn profile: 1Exhibits cited herein refer to the exhibits attached to the concurrently-filed Declaration of Paul A. Kroeger. 8 2 See Kroeger Decl. ¶ 3. Moreover, despite Dropbox's assertions to the contrary, many former Dropbox employees located in this District appear to have relevant and material knowledge of the accused instrumentalities, including (for example): Name Dropbox Role Current Relevant Knowledge Location Alex Carp Software engineer Austin, Technical operation of Dropbox's (June 2015–August Texas desktop client data 2018) synchronization features Mike Roeder Software engineer Austin, Technical operation of data (March 2013–June Texas synchronization features of 2016) Dropbox products generally; technical operation of data synchronization features relating to Dropbox's Mailbox product Drew Betzer Senior Account Austin, Sales and marketing of the Executive (April Texas accused instrumentalities 2014–June 2016) generally; customer demand for the accused instrumentalities Meghan Enterprise Account Austin, Sales and marketing of the Sayers Executive (April Texas accused instrumentalities 2016–April 2018) generally; customer demand for 9 2 the accused instrumentalities See Kroeger Decl. ¶¶ 4–7 (attaching and describing relevant LinkedIn profiles). Alex Carp was a software engineer at Dropbox for more than three years, where he "worked on the Dropbox client and Smart Sync" as well as for "Dropbox's infrastructure team working on systems to help Dropbox scale." Ex. C, at 1. Mr. Carp appears to have worked on the accused Smart Sync feature from its inception through at least its widescale release in 2017. See id. Importantly, he is also likely to possess relevant and material knowledge of the datacenter infrastructure supporting Dropbox's products, which are squarely within the scope of the asserted claims in this case. Dropbox operates such a datacenter in Texas. See Ex. I, at 2 ("We have datacenter co- location facilities in California, Texas, and Virginia."). Mike Roeder was a back-end software engineer for Dropbox from March 2013 through June 2016, where he appears to have been responsible for coding the data synchronization functions of Dropbox's Mailbox app, which Data Scape understands likely fall within the scope of the asserted patents. See Ex. D, at 1. Mr. Roeder is also a named inventor on U.S. Patent 10,122,665 ("the '665 Patent"), which issued on November 6, 2018. The '665 Patent is assigned to Dropbox and titled "Distributed Synchronization Data in a Message Management Service", whose claims appear directed to the same data synchronization features accused by Data Scape in this case. Data Scape believes Mr. Roeder is likely to have knowledge material to the parties' claims and defenses. Drew Betzer and Meghan Sayers are both former Dropbox employees who had sales and marketing roles within the company. See Exs. E and F. Mr. Betzer's responsibilities appear to have encompassed the "Dropbox for Business sync-and-share 10 2 platform" (Ex. E, at 2), and Ms. Sayers appears to have been responsible for significant sales activity to Dropbox's enterprise customers (Ex. F, at 1). They are both likely to have relevant knowledge regarding the issues in this case. Similarly, Dropbox cannot deny that it provides the accused instrumentalities and infringing features specifically to customers in this District. When Dropbox filed its pre- IPO S-1 filing with the SEC on February 23, 2018, it specifically identified six marquee customers as "case studies." One of these six marquee customers is the Brandt company, one of Texas's largest construction services contractors and which has significant offices in every major city in Texas (including in both Waco and Austin). See Ex H, at 2-3. Jim Stagg, Vice President of Service at Brandt, is quoted by Dropbox in its S-1 disclosure explaining the benefits of Dropbox's cloud storage and data sharing products. See id.; see also Ex. G, at 1. Dropbox also omitted discussion of other relevant third parties who likely possess information that is relevant and material to this litigation: Name Role Location Relevant Knowledge Cooper & Dunham Assignment of New York, Assignment of the asserted LLP the asserted New York patents patents Kramer & Amado, Assignment and Alexandria, Assignment and prosecution P.C. prosecution of Virginia of the asserted patents the asserted patents Rader Fishman & Assignment of Washington, Assignment of the asserted Grauer the asserted D.C.; and patents patents Bloomfield Hills, Michigan Oblon, McClelland, Prosecution of Alexandria, Prosecution of the asserted Maier & Neustadt, the asserted Virginia patents L.L.P. patents See Kroeger Decl. ¶¶ 11–12. 11 2 Finally, Data Scape's sole U.S. employee, Gerald Padian, resides in New York. Padian Decl. ¶ 2. If called to testify at trial, this District would be more convenient for Mr. Padian than the Northern District of California. Id. ¶ 4. The presence of so many non-party witnesses in this District with information that is relevant and material to this case, in conjunction with the party witnesses whose existence Dropbox concealed in its motion, suggests not only that Dropbox has failed to meet its burden to demonstrate that the transferee forum is "clearly more convenient" but that this District would be, on balance, more convenient for the deposition and other witness discovery anticipated to occur in this case. ii. The accessibility of documents in this District is similar to the accessibility of documents in the Northern District of California Dropbox argues that "documents related to Smart Sync" were "created in San Francisco and Seattle," and that its source code is "in the Northern District of California." Dkt. 32, at 8. Dropbox's party declarant tacitly admits that its documents and source code are electronic (and thus equally convenient for production whether this case is transferred or not). The "location of documents is given little weight in determining proper venue unless the documents 'are so voluminous [that] their transport is a major undertaking,'" and there is no indication such is the case here. Barnes & Noble Booksellers, Inc. v. DDR DB SA Ventures, LP, No. CIV.A. SA05CA0002XR, 2005 WL 1279192, at *2 (W.D. Tex. May 5, 2005). See also United States v. Patel, No. 4:18CR127, 2018 WL 6274034, at *3 (E.D. Tex. Nov. 14, 2018) ("[the location of 12 2 documents] is of no significant or relevance in cases involving electronically-stored documents that can be easily transferred or made available in any location"). Dropbox's declarant does, however, swear that "[t]o the extent there are any hard copy documents describing the design and operation of the accused feature, they would be in San Francisco and Seattle." Dkt. 32-1, ¶¶ 7. This averment regarding "hard copy documents," however, is simply not credible. Neither is Dropbox's argument that "none of Dropbox's technical, marketing, or financial documents regarding the accused feature are stored [in this District]." Dkt. 32, at 15. As demonstrated above, Dropbox currently employs, and previously employed, individuals located in this District who have and had responsibility for creating, managing, and supporting the technical, marketing, sales, and financial aspects of the accused instrumentalities (including the Smart Sync feature non- exclusively identified by Data Scape in its complaint). Finally, Dropbox contends that it "will seek a protective order … that permits inspection only at its counsel offices in the Northern District of California." Dkt. 32, at 8. Dropbox does not explain why it is unwilling (or cannot) produce its electronic source code at the office of its litigation counsel in Austin, Texas, or whether printing pages of source code for a trial in Texas would be more or less burdensome than printing pages of source code for a trial in California. This conduct, whether permitted or not, is not within the scope of the Section 1404(a) factors and cannot be a basis to transfer the case. See Odom v. Microsoft Corp., 596 F. Supp. 2d 995, 1000 (E.D. Tex. 2009) (argument that location of electronic source code is pertinent to transfer analysis is "inconsistent with the language of § 1404(a)"). 13 2 Like with Dropbox's anticipated document discovery, Data Scape's documents will be produced electronically in this case (as like with most modern patent litigation cases). The factor concerning the location of documentary evidence is therefore, at best, neutral. iii. The availability of compulsory process to secure attendance of witnesses is neutral Dropbox's party witnesses are not material to the factor concerning the availability of compulsory process. See Casey on Behalf of RVNB Holdings, Inc. Employee Stock Ownership Plan v. Reliance Tr. Co., No. 4:18-CV-00424, 2018 WL 7138386, at *3 (E.D. Tex. Dec. 12, 2018) ("Party witnesses do not require compulsory process for trial and their ability to be subpoenaed is not given much weight in this factor."). Rather, "the focus of this factor is on witnesses for whom compulsory process to attend trial might be necessary." Id. Accordingly, Dropbox is required to "demonstrate and identify unwilling third-party witnesses that would benefit from the transfer." Id. Importantly, "[C]ourts, including courts within this district, have found this factor to be neutral 'where the parties have not alleged that non-party witnesses are unwilling to testify.'" Auto-Dril, Inc. v. Pason Sys. USA Corp., No. 6:15-CV-00093, 2015 WL 12780779, at *3 (W.D. Tex. June 29, 2015); see also Healthpoint, Ltd. v. Derma Scis., Inc., 939 F. Supp. 2d 680, 689 (W.D. Tex. 2013) ("[Movant] has not argued that compulsory process would be necessary to secure [third parties'] presence at trial. In the absence of such claims, this factor is neutral."). 14 2 Dropbox has identified only two non-party witnesses: Ben Newhouse and Kelly Marren. See Dkt. 32, at 16. Data Scape has identified at least nine third party witnesses in Texas or on the East Coast. Importantly, Dropbox has given no indication that either Mr. Newhouse or Ms. Marren would be unwilling to testify in this litigation. The factor concerning availability of compulsory process is therefore neutral. iv. The cost of attendance for willing witnesses is either indeterminate and or weighs against transfer Dropbox contends that "all" of its expected witnesses are located in the Northern District of California. Dkt. 32, at 19. But as set forth above, Dropbox appears to have intentionally selected and disclosed specific employees in the Northern District of California whose cost and convenience it desires the Court to weigh. Further, Dropbox omitted from its papers the significant connection of its operations in this District to the accused instrumentalities and data synchronization features, as well as the existence of relevant Dropbox employees in this District. Dropbox also omitted discussion of other relevant third party witness whose testimony could be useful, such as its Texas customers. Given the relatively early stage of this litigation, Data Scape suspects it is too early to accurately determine whether any of the individuals identified in the context of Dropbox's transfer motion are actually necessary for trial such that their convenience should be considered in the transfer analysis. Though it is true that Dropbox is entitled to choose which of its employees will testify on its behalf in this case, Data Scape is similarly entitled to choose seek discovery and trial testimony from the witnesses it believes are important to the case—including, for instance, Dropbox's current and former employees located in this District, Dropbox's marquee customers (one of which is 15 2 located in this District), the lawyers involved in the assignment and prosecution of the asserted patents (who, to the extent they are still available, are located on the East Coast), and Data Scape's intended representative who resides in New York. The convenience of the Dropbox's six possible San Francisco-based witnesses should not obscure or outweigh the convenience of Data Scape's eleven possible witnesses located in this District and on the East Coast: (1) Edgar Aguillon; (2) Rachel Belkin; (3) Alex Carp; (4) Mike Roeder; (5) Drew Betzer; (6) Meghan Sayers; (7) Brandt Company/Jim Stagg; (8) Cooper & Dunham LLP; (9) Kramer & Amado, P.C.; (10) Rader Fishman & Grauer; and (11) Oblon, McClelland, Maier & Neustadt, L.L.P. v. Practical Concerns Weigh Against Transfer As Dropbox concedes, three other cases are pending in this Court involving the same asserted patents. "[A] district court may properly consider any judicial economy benefits which would have been apparent at the time the suit was filed." In re EMC Corp., 501 F. App'x 973, 976 (Fed. Cir. 2013) . Further, "the co-pendency of cases involving the same patent are permissible considerations in ruling on a motion to transfer venue." Id. Dropbox contends that considerations of judicial economy are neutral. It argues that "all of Data Scape's cases are in the early stages." Dkt. 32, at 19. Nonetheless, the effect of a transfer would undeniably impose a net burden on the Federal judiciary, insofar as the Northern District of California, in which have been no cases involving Data Scape or the asserted patents, would need to generate a docket and assign a judge with no familiarity with the patents to adjudicate Data Scape's patent infringement claims. Concerns of judicial economy would weigh, even if only minimally, against transfer. 16 2 B. The Public Interest Factors Weigh Against Transfer All of the public interest factors are neutral or weigh against transfer. i. Administrative difficulties from court congestion weigh against transfer Dropbox contends, without support, that this District and the Northern District of California are comparable with respect to judge shortages and civil matter backlogs. Dropbox further argues that "times to trial in patent infringement cases are comparable." Dkt. 32, at 20. It argues that "Judge Yeakel concluded that the median time to trial in patent cases in the Northern District of California is marginally faster than in the Western District of Texas." Id. at 21 (citing Uniloc USA Inc. v. Box, Inc., No. 1:17-CV-754-LY, 2018 WL 2729202, at *4 (W.D. Tex. June 6, 2018)). Dropbox is wrong. To begin, Dropbox misreads Judge Yeakel's language ("average time to trial") to mean "median time to trial," even though "average" and "median" are different concepts. See 2018 WL 2729202, at *4. Further, Judge Yeakel's conclusion (that "average time to trial" for patent cases is "marginally faster" in the Northern District of California) is without any evidentiary support (either in Judge Yeakel's order or the papers of the parties in that case). The language in Uniloc USA also appears to contradict other available public evidence. PwC's 2018 Patent Litigation Study, however, provides that the median time- to-trial for patent cases in the Northern District of California is 2.7 years. 2 This is consistent with the most recent December 2018 National Judicial Caseload Profile statistics released by the Administrative Office of the U.S. Courts, which records the 2 See 2018 PwC Patent Litigation Study, at 14 (available at https://www.pwc.com/us/en/forensic-services/publications/assets/2018-pwc-patent- litigation-study.pdf). 17 2 median time to trial for civil cases in the Northern District of California to be at 29.2 months, whereas it is 20.4 months in this District. 3 Furthermore, Data Scape understands that the Court is particularly well-equipped to handle patent litigation cases and expects the Court to issue its Order Governing Proceedings for Patent Cases to set the scheduling and pace of this case. Accordingly, considerations of court congestion appear to weigh substantially against transfer. ii. Localized interests are neutral in the transfer analysis Dropbox represents that its operations in this District "are not central to any of the complaint's allegations." Dkt. 32, at 21. While it is true that Dropbox's headquarters are in San Francisco, it does not deny that its second largest office in the country is in this District. And, as set forth above, Dropbox appears to have intentionally omitted any material discussion of its activities in this District, which appear to comprise (at least) a significant component of the sales and marketing of the accused instrumentalities as well as specific accused features relevant to the asserted patents. Even assuming that the software coding of the accused instrumentalities occurred in San Francisco or Seattle (as Dropbox contends), that would mean that this District and the Northern District of California have similar interests in resolving the issues raised in this case. This factor, therefore, is neutral. iii. Familiarity with governing law factor is neutral Data Scape agrees that, as a general matter, the judges in the Northern District of California are well-suited to manage patent litigation cases. But this Court is also well- versed in patent litigation, and Data Scape expects there to be no material difference 3 See United States District Courts - National Judicial Caseload Profile (December 2018), at 14, 37 (available at https://www.uscourts.gov/sites/default/files/fcms_na_distprofile1231.2018.pdf). 18 2 between this Court's familiarity with patent law and the familiarity with patent law of whomever this case is assigned to should it be transferred to the Northern District of California. iv. Avoidance of conflict of laws factor is neutral The fourth public interest factor, avoidance of conflict of laws in the application of foreign law, is neutral. Dropbox appears to misunderstand this factor as being about judicial economy (Dkt. 32, at 22-23), but in reality this factor asks whether there will be "conflict" of laws as the term is used in, say, an Erie analysis, and whether a court will be forced to apply a foreign jurisdiction's law. See, e.g., Am. States Ins. Co. v. Andrews, No. 6:13-CV-865-JDL, 2014 WL 12601031, at *4 (E.D. Tex. Aug. 15, 2014) (noting that denying transfer motion would require Texas court to apply Arkansas law). As the law implicated in this case is Federal patent law, and both this District and the Northern District of California will interpret and apply said Federal patent law, Data Scape agrees that this factor is neutral—albeit not for the same reasons articulated by Dropbox. V. CONCLUSION As explained above, Dropbox cannot meet its burden of showing that the Northern District of California is clearly more convenient than this District. Dropbox's motion to transfer should be denied. Dated: May 8, 2019 Respectfully submitted, /s/ Paul A. Kroeger Marc A. Fenster (CA SBN 181067) Reza Mirzaie (CA SBN 246953) Brian D. Ledahl (CA SBN 186579) Paul A. Kroeger (CA SBN 229074) C. Jay Chung (CA SBN 252794) Philip X. Wang (CA SBN 262239) 19 2 RUSS AUGUST & KABAT 12424 Wilshire Boulevard, 12th Floor Los Angeles, CA 90025 (310) 826-7474 mfenster@raklaw.com rmirzaie@raklaw.com bledahl@raklaw.com pkroeger@raklaw.com jchung@raklaw.com pwang@raklaw.com Robert M. O'Boyle CLARK HILL LLP 720 Brazos Street, Suite 700 Austin, Texas 78701 Email: bob.oboyle@clarkhillstrasburger.com Telephone: (512) 499-3644 Facsimile: (512) 536-5707 Attorneys for Plaintiff Data Scape Limited 20 2 CERTIFICATE OF SERVICE The undersigned certifies that on May 8, 2019, all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the Court's CM/ECF system pursuant to Local Rule CV-5(a)(3)(A). /s/ Paul A. Kroeger 21