Motion To Transfer Venue Denied; In re Google Addressed

Judge Albright denied the motion, noting that the relevant evidence was either located in the WDTX or remotely accessible in the WDTX, with none only accessible in the CDCA, and therefore under In re Planned Parenthood, the sources of proof factor was neutral.  As was the court congestion factor under In re Google.  In fact the only factor which wasn’t neutral was the presence of other litigation, which the court found weighed strongly against transfer – accordingly the CDCA was not show to be a clearly more convenient forum.                                                                         

“Hot-Then-Cold Positions” – Are They A Good Thing?

The court noted that the defendant was able to secure and produce several employees of the third-party in an effort to distance itself from the EDTX, but when the court ordered venue discovery, defendant suddenly no longer controlled that third party or its employees, and refused to produce documents from them.  “Defendant’s hot-then-cold positions are not well received by the Court,” Judge Gilstrap wrote, and ordered production, adding that “[t]he parties should be mindful that the disputes addressed herein are just the kind of things to be considered when the Court is later asked to determine if this is an exceptional case under 35 U.S.C. § 285.

Motion For Venue Discovery Denied Without Prejudice 

One of the Non-Albright Waco patent cases finally has an order!  Judge Kathleen Cardone denied the plaintiff’s first two motions for venue discovery, noting that the first motion contain no certificate of conference, and the second only stated that plaintiff’s counsel attempted to confer with opposing counsel late in the day but received no response.  Finding that “Plaintiff’s eleventh-hour communication does not amount to a good-faith attempt to resolve the matter” and thus did not comply with the relevant local rule,” Judge Cardone denied the motion, but without prejudice to the plaintiff’s ability to refile compliance with the local rules, and detailed what that requires. 

Discovery Stay Pending Venue Ruling / Expedited Venue Discovery / Surreply Please?

Defendant asked for a stay of merits discovery, and the plaintiff asked for expedited venue discovery.  The court granted both, noting the likelihood of transfer and the minimal harm of delaying discovery.  But the venue discovery was limited to targeted interrogatories and limited request for documents.  The court also denied the request for a surreply on the motion to dismiss under the facts of the case.