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LILY I. REZNIK, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

WACO DIVISION

PROFECTUS TECHNOLOGY, ) Docket No. WA 20-CA-101 ADA

LLC )

)

vs. ) Waco, Texas

)

GOOGLE, LLC ) May 29, 2020

TRANSCRIPT OF TELEPHONIC SCHEDULING CONFERENCE

BEFORE THE HONORABLE ALAN D. ALBRIGHT

APPEARANCES:

For the Plaintiff: Mr. Steven E. Ross

Ross IP Group, PLLC

5050 Quorum Drive, Suite 700

Dallas, Texas 75254

Mr. Casey L. Griffith

Griffith Barbee, PLLC

1722 Routh Street, Suite 710

Dallas, Texas 75201

For the Defendant: Ms. Paige A. Amstutz

Scott, Douglass & McConnico, LLP

303 Colorado Street, Suite 2400

Austin, Texas 78701

Mr. Daniel C. Callaway

Farella, Braun & Martel, LLP

235 Montgomery Street, 18th Floor

San Francisco, California 94104

Court Reporter: Ms. Lily Iva Reznik, CRR, RMR

501 West 5th Street, Suite 4153

Austin, Texas 78701

(512)391-8792

Proceedings reported by computerized stenography,

transcript produced by computer-aided transcription.

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LILY I. REZNIK, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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THE CLERK: Telephonic scheduling conference in

Civil Action W-20-CV-101, styled, Profectus Technology,

LLC vs. Google, LLC.

THE COURT: Good afternoon, everyone.

If I could hear from plaintiff's counsel first

and then, defense counsel.

MR. ROSS: Thank you, your Honor.

This is Steven Ross, lead counsel for Plaintiff

Profectus. With me here on the phone is my co-counsel,

Mr. Casey Griffith.

Would the Court like us to get into more

substantive matters now? Or would the Court like to hear

from appearances from defendant's counsel?

THE COURT: I would. The latter, please.

MS. AMSTUTZ: Good afternoon, your Honor.

This is Paige Amstutz for Scott, Douglass,

McConnico on behalf of Defendant Google. I am here with

my co-counsel, Stephanie Skaff, Eugene Mar and Dan

Callaway from Farella, Braun & Martel. And also with us

is Don Wong from Google.

THE COURT: Very nice.

And I always like to give a little bit of a

shout-out whenever counsel or inhouse folks appear at my

hearings. I think it's important to what we do that

inhouse folks, whether they be clients or inhouse counsel,

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LILY I. REZNIK, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

3

attend and knows what's going on. So I appreciate anyone

who attends in that manner.

So my understanding is that you all have agreed

to a Markman date of January 7th; is that correct?

MR. ROSS: Your Honor, this is Steven Ross for

plaintiff.

I think that that is the date that we've arrived

at by default. Plaintiff would prefer December 3rd, but I

understand that defendant's counsel is only available on

January 7th.

THE COURT: Okay. Well, then, let's do it

January 7th. It's not going to delay your trial by very

much. I could tell you that. I sound like I'm talking

like the president now: I can tell you that.

So for that, is there anything we need to take up

from the plaintiff's perspective with respect to the

Markman?

MR. ROSS: Your Honor, I believe we should get

into the issue of briefing, which has actually been raised

by Defendant Google.

THE COURT: Okay.

MR. CALLAWAY: And, your Honor, I'm happy to

speak to that. This is Dan Callaway for Google.

THE COURT: Okay.

MR. CALLAWAY: I don't expect to belabor this.

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LILY I. REZNIK, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

4

We had discussed with plaintiff the possibility

of agreeing to a Markman briefing schedule that would

include just one opening brief, one response, a reply and

potentially sur-reply on indefiniteness issues.

Unfortunately, we did not reach agreement as to that

proposal, so I'm certainly not inclined to press that

proposal at this time, in view of the Court's preference

for simultaneous briefing.

We don't have an agreement as to any arrangement

to substitute for your order governing proceedings. So I

think at this time, we would just go ahead with your order

governing proceedings and the simultaneous briefing

outlined there.

THE COURT: Okay. And, Mr. Ross, what do you say

to that?

MR. ROSS: Your Honor, we agree. We prefer the

Court's default briefing schedule and page limits as set

out in the order governing proceedings.

THE COURT: Well, that's why we have it.

Is there anything else that we could take up on

behalf of plaintiff?

MR. ROSS: Your Honor, there is one other issue.

As the Court may know, Google has filed a motion

to transfer this case to the Northern District of

California. The plaintiff's response is due to be filed

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LILY I. REZNIK, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

5

on June 2nd, next week. We have indicated to defense --

defendant's counsel that we would like to seek leave of

court to conduct some expedited venue discovery in support

of plaintiff's opposition to the motion to transfer.

Earlier this week, we sent over a set of five

interrogatories, ten document requests, and a proposed

Rule 30(b)(6) deposition notice. Our current intent is to

file our motion on or before June 2nd for the expedited

discovery. And we will attach that discovery to our

motion. I just wanted to make the Court aware of what our

plans are and see if the Court would like us to proceed in

any other manner on this issue.

THE COURT: Have you all -- let me make sure I

understand.

Have the plaintiffs actually provided to Google

or counsel for Google, I guess, the specific discovery

that you would like to send them? Have you provided it --

do they know what's coming?

MR. ROSS: Yes, your Honor. We served them with

that discovery two days ago.

THE COURT: Okay. So it is almost automatic in

my court to allow this kind of discovery when a defendant

files a motion to transfer like as Google has done. So

let me hear from counsel for Google, if you have any

specific concerns with respect to the discovery that has

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LILY I. REZNIK, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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been sent to you by the plaintiff.

MS. AMSTUTZ: And, your Honor, this is Paige

Amstutz. I can speak to that.

We did get it a couple of days ago. We are

looking at a very specific request to see if we do have

any issue with them because we know the Court's tendency

is to allow that discovery. We're still in that process

with the hope we can reach resolution, but we know that if

we cannot, we come to the Court for some guidance.

THE COURT: Mr. Ross, typically -- and I

apologize if you've been in my court before. I don't -- I

just can't remember at this point. But I think what Ms.

Amstutz just said is -- I mean, she has been in my court a

lot, so I'm sure she's advised Google how I would probably

rule.

I would advise you to very quickly chat with the

folks who are representing Google. If they have any

specific issues with the discovery, not whether or not

they're going to answer discovery at all, but specific

issues, you folks try to work that out. If you can't work

it out, you need to represent your client, Mr. Ross.

Google needs to have their lawyers represent them.

Just contact Josh Yi. Or if there is a specific

discovery request, interrogatory, or anything that you

sent, maybe the categories for the 30(b)(6), or whatever,

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LILY I. REZNIK, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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if you all are fighting over any of those, just, you know,

send -- tell Josh Yi what it is that you're fighting over.

I may not even need a hearing, I may just rule on it. But

you guys try and work that out by the end of the week.

Next Friday -- if you realize before next Friday -- that's

a week from today, not today. If you all realize that

that's -- I don't want you spending three days trying to

work this out. If you can work it out, great. If you

can't work it out, that's fine with me, too. Just let

Josh know.

But I'm going to allow discovery. It's just if

Google has a specific concern with the discovery that you

sent, I'm certainly happy to take that up.

Mr. Ross, does that take care of that issue?

MR. ROSS: Just for point of clarification, your

Honor, it's my understanding that a motion for leave to

conduct this discovery is not necessary; is that correct?

THE COURT: It is.

MR. ROSS: Thank you, your Honor.

THE COURT: And if that's not clear from my local

rules, it will -- I will address that in my local rules,

and we'll make it so it is clear.

MR. ROSS: Thank you, your Honor.

THE COURT: You bet. Anything else?

MR. ROSS: That's all from the plaintiff's side,

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LILY I. REZNIK, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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your Honor.

THE COURT: Anything for Google?

MR. CALLAWAY: For Google, your Honor, again,

this is Dan Callaway.

Just by way of sort of status, we are in the

process of negotiating a protective order with plaintiff.

I won't belabor the specifics of that. I think we're

working on it. And then, Google is interested in

discussing with the plaintiff a stipulated reduction of

the default discovery limit. This is a single-patent case

and a relatively limited universe of accused products.

The plaintiff's LLC only has two members, so we anticipate

modest discovery on that front and are interested in

reducing the default discovery limits for this case.

But I sense that that's premature on this call

because discovery is effectively stayed until after

Markman, notwithstanding the venue discovery that was just

discussed.

THE COURT: That's correct.

And the only discovery I permit in advance of the

Markman hearing is either the discovery on venue --

because I believe the defendant in this case, and

rightfully so, has put into question whether or not the

case should be transferred, and so, that's why I allow

that.

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LILY I. REZNIK, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

9

And any other discovery that might be directly

relevant to Markman, for example, if the plaintiff wanted

to contend that they needed source code to do their

infringement contentions, I would find that type of

discovery acceptable, as well. But all other routine

discovery is stayed until the Monday after the Markman.

MR. ROSS: Very good, your Honor.

THE COURT: Is there anything else we need to

take up for Google?

Okay. I hope you all be safe out there. Have a

wonderful weekend. And I will forward -- I hope I see at

least some of you way before we have the Markman hearing.

And just let us know whenever -- let me tell you one more

thing quickly.

Google, you have filed -- I'm just terrible to

address people for their -- counsel for Google. I

apologize. The motion to transfer has been filed; is that

correct?

MR. CALLAWAY: It is, your Honor.

MS. AMSTUTZ: That's correct.

MR. CALLAWAY: We had filed that motion.

THE COURT: Okay. When that motion is ripe,

whatever that means in this case, either when you all file

a reply or when you know the plaintiffs are done and are

or are not going to file a sur-reply, I'm going to put the

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LILY I. REZNIK, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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burden on you to just have someone contact the Court and

let us know that the motion is ready for us to consider.

What you should anticipate is us addressing it

pretty quickly after we know that it's ripe, and if we

believe we need a hearing on it, then we'll set a hearing

pretty quickly. Given travel issues that are going on

right now, I would be happy to conduct that hearing in a

manner that's safe and productive for all parties. We

could do it by telephone. We could do it be Zoom. We

could do it with some people in person and some people by

phone. So we'll take that up down the road if I decide we

need a hearing.

But as soon as the motion is ready to be

considered, I'd like for counsel for Google to let the

Court know.

Is that okay?

MS. AMSTUTZ: That's fine.

MR. CALLAWAY: Yes, your Honor.

MR. ROSS: Understood.

THE COURT: Okay. You guys have a wonderful

weekend. Take care. Bye.

(End of proceeding.)

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