UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION 

SITO MOBILE R&D IP, LLC and SITO 

MOBILE, LTD., 

Plaintiffs, 

v. 

HULU, LLC, 

Defendant. 

Case No. 6:20-cv-00472-ADA 

JURY TRIAL DEMANDED 

HULU LLC’S SUPPLEMENTAL REPLY IN SUPPORT OF TRANSFER IN RESPONSE 

TO PLAINTIFFS SITO MOBILE R&D IP, LLC AND SITO MOBILE, LTD.’S 

SUPPLEMENTAL DECLARATION OF DONALD H. BATE 

REGARDING LOCATION OF DOCUMENTS 

Case 6:20-cv-00472-ADA Document 52 Filed 01/05/21 Page 1 of 4
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The supplemental declaration of Mr. Bate is irrelevant to the transfer inquiry, because 

the records in Mr. Bate’s possession are redundant of documents that SITO already has in its 

possession, custody, and control. Given that SITO is a party to this case, those documents 

should be produced by SITO—not Mr. Bate, who is a non-party. SITO is managed out of 

C.D. Cal. and has no ties to this district. See Dkt. 42 at 6‒7. Accordingly, Mr. Bate’s 

statement that he has backup copies of redundant records is irrelevant to the “location of 

evidence” factor of the transfer analysis. 

Rule 45 of the Federal Rule of Civil Procedure mandates that parties must take 

reasonable steps to reduce burden and expense on a person subject to a subpoena. Fed. R. 

Civ. P. 45(c)(1). The Fifth Circuit also recognizes that discovery should come from the 

parties, to the extent possible, to reduce the burdens to non-parties. See Positive Black Talk 

Inc. v. Cash Money Records, Inc., 394 F.3d 357, 377 (5th Cir. 2004), abrogated on other 

grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010). Thus, the location of a 

non-party’s redundant records should be given no weight when a party to the case already has 

copies. Cf. Web Telephony, LLC v. Comcast Corp., Case No. 2:09-cv-116-CE, Dkt. 201 

(E.D. Tex. Sept. 30, 2010) (“the documentary evidence retained by these third parties is likely 

redundant with the information Plaintiff retained”). 

The facts show that SITO already has possession of the records discussed in Mr. 

Bate’s declaration. First, the declaration fails to establish or even allege that Mr. Bate has 

unique records that are not already in SITO’s possession or control. Dkt. 49-1 ¶ 2 (stating 

that Mr. Bate has “backup” copies of documents). And paragraph 3 of Mr. Bate’s declaration 

only specifically identifies four documents, which were already produced by SITO, and 

merely claims that they are “copies” of documents that he also has. Id. ¶ 3. Second, SITO 

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produced those four documents from its own records on September 11, 2020, over two 

months before it had any contact with Mr. Bate. Ex. 1 (Nov. 19, 2020 30(b)(6) Deposition of 

T. Candelaria) at 57:18‒23 (“Q. Has SITO been in contact with Mr. Bates [sic] for purposes 

of obtaining information or consulting with him in connection with the lawsuit against Hulu? 

A. No”). See Ex. 2 at 7. Third, even if Mr. Bate has other documents beyond those 

identified in the supplemental declaration, his employment agreement with SITO’s 

predecessor required that he turn over all of his records related to any intellectual property he 

developed during his employment there. Ex. 3 at 23 (“H. Return of Records, Etc. On 

termination of employment, Employee shall deliver all records, notes, memoranda, and 

equipment of any nature that are in Employee’s possession or under his or her control and that 

are the property of Employer or relate to the Intellectual Property or to the Business.”). 

Under this contract, SITO’s predecessor—and now SITO—has possession of, or at the very 

least custody or control over, all of Mr. Bate’s documents relevant to the Asserted Patents. 

Id. 

Thus, the location of Mr. Bate’s records should be given no weight. SITO is the 

custodian of those records, and SITO should produce them. Moreover, the location of Mr. 

Bate’s backup copies does not negate the fact that the bulk of relevant evidence will come 

from Hulu in C.D. Cal., and “the place where the defendant’s documents are kept weighs in 

favor of transfer to that location.” In re Genentech, 566 F.3d 1338, 1345 (Fed. Cir. 2009). 

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Dated: December 31, 2020 /s/ Darin W. Snyder 

Darin W. Snyder – Cal. S.B. # 136003 

Amy K. Liang – Cal. S.B. # 291910 

O’MELVENY & MYERS LLP 

Two Embarcadero Center, 28th Floor 

San Francisco, CA 94111-3823 

Phone: (415) 984-8700 

Facsimile: (415) 984-8701 

dsnyder@omm.com 

aliang@omm.com 

Brett J. Williamson – Cal. S.B. # 145235 

Cameron W. Westin – Cal. S.B. # 290999 

Andrew S. Bledsoe – NY # 5691381 

O’MELVENY & MYERS LLP 

610 Newport Center Drive, 17th Floor 

Newport Beach, CA 92660 

Phone: (949) 823-6900 

Facsimile: (949) 823-6994 

bwilliamson@omm.com 

cwestin@omm.com 

abledsoe@omm.com 

Attorneys for Defendant 

HULU, LLC 

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the above and foregoing was served 

upon all counsel of record via the Court’s ECF system on December 31, 2020. 

/s/ Darin W. Snyder 

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