More Uses Of Planned Parenthood In Waco

Judge Albright granted the motion to transfer in this case, referencing the Fifth Circuit’s recent opinion in In re Planned Parenthood for two of the relevant standards.

Part of the opinion zeros in on the potential conflict between the Federal Circuit’s statement that “when there is no indication that a non-party witness is willing, the witness is presumed to be unwilling and considered under the compulsory process factor” and the Fifth Circuit’s recent statement in PP that the availability of compulsory process “receives less weight when it has not been alleged or shown that any witness would be unwilling to testify.” 

The court concluded that the plaintiff had shown four witnesses that the court could compel, while the defendants had shown that the EDMO could compel three witnesses. Therefore, the court found that this this factor slightly weighed against transfer. But because neither party has shown any of the above parties are unwilling to testify, this factor “receives less weight” citing PP.  (Interesting fact situation here where more witnesses were in WDTX, so, paradoxically, decreasing weight on this factor cut against the plaintiff).

The court also referenced the new standard for sources of proof, and declined to assign significant weight to the location of electronic documents, although in this case more because the defendant failed to provide information regarding the location of the relevant servers.  But because both physical proof and custodians of electronic documents were located in the transferee forum, it still weighed in favor of transfer, albeit only slightly.

In the end, the court concluded that three factors are neutral, local interest slightly favors transfer, access to sources of proof slightly favors transfer, cost of attendance for willing witnesses strongly favors transfer, the compulsory process factor weighs slightly against transfer, and the court-congestion factor weighs slightly against transfer. Given the foregoing, the court concluded that the defendants had shown that the EDMO was clearly more convenient than the WDTX.

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