UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

WARNER RECORDS, INC., et al.,

Plaintiffs, 

v. 

ALTICE USA, INC., et al.,

Defendants. 

Case No. 2:23-cv-00576-JRG-RSP

JURY TRIAL DEMANDED

ORAL ARGUMENT REQUESTED

DEFENDANTS’ MOTION TO TRANSFER VENUE

TO THE EASTERN DISTRICT OF NEW YORK

PURSUANT TO 28 U.S.C. § 1404(a)

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 1 of 22 PageID #: 461
– i –

TABLE OF CONTENTS

Table of Authorities.......................................................................................................................iii

I. Introduction......................................................................................................................... 1

II. Background Facts................................................................................................................ 3

A. Altice and the Location of Its Documents and Witnesses ...................................... 3

B. Plaintiffs and the Location of Their Documents and Witnesses............................. 5

C. The Locations of Third-Party Witnesses ................................................................ 6

III. Legal Standard .................................................................................................................... 6

IV. Argument ............................................................................................................................ 7

A. This Case Could Have Been Brought in the EDNY............................................... 7

B. Both the Private and Public Interest Factors Heavily Favor Transfer to the 

EDNY. .................................................................................................................... 7

1. The relative ease of access to sources of proof weighs in favor of 

transferring this case because the bulk of evidence will come from 

the EDNY with none in the EDTX............................................................. 7

2. The availability of compulsory process weighs in favor of 

transferring this case because the EDNY has subpoena power over 

non-party witnesses that the EDTX does not.............................................. 9

3. The cost of attendance for willing witnesses weighs in favor of 

transferring this case because the bulk of witnesses are in the 

EDNY and more than 100 miles from the EDTX..................................... 11

4. The lack of practical problems weighs in favor of transferring this 

case because this case just started............................................................. 12

5. The administrative difficulties from court congestion factor is 

neutral because of the docket efficiency in the EDNY and EDTX. ......... 12

6. The local interest in having localized interests decided at home 

weighs in favor of transferring this case because the place of the 

alleged wrong is in the EDNY, not the EDTX. ........................................ 13

7. The familiarity of the forum factor is neutral because both the 

EDNY and EDTX are equally capable of resolving this suit. .................. 15

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 2 of 22 PageID #: 462
– ii –

8. The avoidance of problems of conflict of laws factor is neutral 

because there are no conflict of law issues. .............................................. 15

V. Conclusion ........................................................................................................................ 15

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 3 of 22 PageID #: 463
– iii –

TABLE OF AUTHORITIES

Page(s)

Cases

In re Apple Inc.,

2022 WL 1676400 (Fed. Cir. Apr. 2022) ..................................................................................9

Athalonz LLC v. Under Armour, Inc.,

2023 WL 8809293 (E.D. Tex. Dec. 20, 2023) (Gilstrap, J.)................................................9, 10

BMG Rights Management (US) LLC et al. v. Altice USA, Inc. et al.,

No. 2:22-cv-00471 (E.D. Tex.)........................................................................................ passim

Def. Distributed v. Bruck,

30 F.4th 414 (5th Cir. 2022) ................................................................................................3, 15

Godo Kaisha IP Bridge 1 v. Xilinx, Inc.,

2017 WL 4076052 (E.D. Tex. Sept. 14, 2017)........................................................................15

Holloway v. City of Fort Worth,

2024 WL 96666 (E.D. Tex. Jan. 9, 2024)..................................................................................9

Intelligent Automation Design, LLC v. Zimmer Biomet Holdings, Inc.,

2016 WL 4424967 (E.D. Tex. July 21, 2016) ...........................................................................8

In re Marquette Transp. Co. Gulf-Inland, LLC,

2012 WL 2375981 (S.D. Tex. June 21, 2012).........................................................................12

Mears Techs., Inc. v. Finisar Corp.,

2014 WL 1652603 (E.D. Tex. Apr. 24, 2014) (Gilstrap, J.)....................................................13

Mini Melts, Inc. v. Uniworld Corp. WLL,

2008 WL 4441979 (E.D. Tex. Sept. 25, 2008)..........................................................................7

Net Navigation Sys., LLC v. Extreme Networks, Inc.,

2014 WL 5465449 (E.D. Tex. Oct. 27, 2014) ...........................................................................8

Network Prot. Scis., LLC v. Juniper Networks, Inc.,

2012 WL 194382 (E.D. Tex. Jan. 23, 2012)............................................................................11

Opulent Treasures, Inc. v. Ya Ya Creations, Inc.,

2022 WL 965394 (E.D. Tex. Mar. 30, 2022) ..........................................................................10

In re Planned Parenthood Fed’n of Am., Inc.,

52 F.4th 625 (5th Cir. 2022) ................................................................................................9, 13

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 4 of 22 PageID #: 464
– iv –

In re TikTok, Inc., 

85 F.4th 352 (5th Cir. 2023) ............................................................................................ passim

In re Volkswagen AG,

371 F.3d 201 (5th Cir. 2004) ...............................................................................................7, 14

In re Volkswagen of Am., Inc.,

545 F.3d 304 (5th Cir. 2008) ...............................................................................................7, 13

Voxpath RS, LLC v. LG Elecs. U.S.A., Inc.,

2012 WL 194370 (E.D. Tex. Jan. 23, 2012) (Gilstrap, J.)...........................................11, 12, 13

Word to Info, Inc. v. Facebook, Inc.,

2015 WL 13870507 (N.D. Tex. July 23, 2015).......................................................................14

Statutes

28 U.S.C. § 1331..............................................................................................................................7

28 U.S.C. § 1338..............................................................................................................................7

28 U.S.C. § 1391(c) .........................................................................................................................7

28 U.S.C. § 1400(a) .........................................................................................................................7

28 U.S.C. § 1404(a) .....................................................................................................................1, 6

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 5 of 22 PageID #: 465
– 1 –

Defendants Altice USA, Inc. and CSC Holdings, LLC (collectively, “Altice”) respectfully 

move to transfer this action to the Eastern District of New York under 28 U.S.C. § 1404(a).

I. INTRODUCTION

Plaintiffs filed this case in Texas because “[t]his Court recently sustained a complaint alleging similar copyright infringement claims” in BMG Rights Management (US) LLC et al. v. Altice USA, Inc. et al., No. 2:22-cv-00471 (E.D. Tex.) (“BMG,” or the “BMG Case”). Compl. ¶ 13.

But after this Court’s decision not to transfer the BMG Case, the Fifth Circuit decided In 

re TikTok, Inc., which made it even more clear that transfer is required when, as here, “virtually 

all of the events and witnesses regarding the case . . . are in the transferee forum.” 85 F.4th 352, 

366 (5th Cir. 2023). In light of the Fifth Circuit’s guidance, the result here must be different. 

Applying TikTok here, the Eastern District of New York (“EDNY”) is a clearly more convenient venue than the Eastern District of Texas (“EDTX”) because the facts here are materially 

different and the discovery and pretrial development in the BMG Case have now shown that Texas 

has no relevant evidence and that all relevant evidence is derived from New York or locations 

more proximate to New York. Two New York-based music conglomerates (Warner and Sony),

through their subsidiaries (35 of which are based in New York), have sued New York-based Altice 

based on corporate decisions made in New York. As explained below, the bulk of the evidence is 

in New York. Most of the parties’ current and former employees are in New York. Plaintiffs’ 

notices purportedly identifying alleged activity of Altice’s users were sent to, and processed by, 

Altice in New York. Altice’s decisions about what to do in response to Plaintiffs’ accusations took 

place at its headquarters in New York. Altice’s data related to notices of alleged infringement and 

accused users are maintained in New York. And Plaintiffs’ corporate decisions and conduct took 

place in their respective New York headquarters. Put simply, the alleged events that gave rise to 

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 6 of 22 PageID #: 466
– 2 –

this case occurred in New York. These facts, coupled with the Fifth Circuit’s intervening and controlling guidance, demonstrate that this case should be transferred.

First, the relative ease of access to sources of proof now clearly favors transfer. In BMG, 

this Court found this factor neutral because it concluded that electronic evidence was equally available in Texas. But the Fifth Circuit has since clarified that this factor still favors transfer when, as 

here, “[t]here are no employees in the [transferor district] who” had access to the key data because

it “is relatively easier to access” the data where “a majority of the [relevant] team is based”—here,

in the EDNY. See id. at 359. Indeed, the BMG proceedings have confirmed that the relevant evidence was generated in New York and is therefore relatively easier to access from the EDNY.

Second, the availability of compulsory process favors transfer because the EDNY has absolute subpoena power over several relevant non-party witnesses. In BMG, the Court found this 

factor neutral because of the prospect that there may be testimony from former Altice employees

in Texas. But that has proven not to be the case. Discovery in BMG is almost over, and, to date, 

no testimony has yet to be obtained, or is scheduled to be obtained, from any witnesses in Texas. 

Further, since the decision not to transfer the case in BMG, several New York-based Altice employees whose depositions have been noticed in BMG have left Altice, heightening the importance 

of the availability of compulsory process if their testimony is sought in this case.

Third, the cost of witness attendance favors transfer. In BMG, the Court found this factor 

neutral after determining that a transfer would not materially reduce the inconvenience for nonparty witnesses spread around the country. But TikTok held that the “analysis of this factor should 

[] end[] with [a] recognition that ‘the bulk of relevant witnesses [are]” in the transferee district. 

See id. at 362. That is the case here—the potentially relevant employees of both parties are predominantly in New York. And when “most relevant witnesses” are in the transferee district, the

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 7 of 22 PageID #: 467
– 3 –

existence of a few non-New York witnesses “cannot overcome the immense inconvenience that 

the majority of relevant witnesses would face if this case were to be tried in Texas.” Id. at 361–62.

Finally, the localized interest in having this case decided at home favors transfer. In BMG, 

the Court found that this factor was neutral because it concluded that the alleged acts of infringement by Altice users included conduct in EDTX. But TikTok clarified that “the place of the alleged 

wrong is one of the most important factors in venue determinations.” Id. at 364. The place of the 

alleged wrong here is not in the EDTX, where a subset of non-party users of Altice’s network are 

alleged to be located. Rather, it is in the EDNY, where Plaintiffs claim Altice allegedly knew of 

the infringing activity and materially contributed to it, or had the ability to supervise and control 

its users’ infringement from its headquarters and financially benefited. Compl. ¶¶ 3, 92, 103, 104. 

The inconsequential interest of Texas (or any other state in which Altice offers service) in this case 

cannot supplant the meaningful interest of New York, which is also Plaintiffs’ residence and the 

location of many witnesses. See Def. Distributed v. Bruck, 30 F.4th 414, 435 (5th Cir. 2022).

For these reasons, Altice respectfully requests that this case be transferred to the EDNY.

II. BACKGROUND FACTS

A. Altice and the Location of Its Documents and Witnesses

Defendant Altice USA is a Delaware corporation with its principal place of business in the 

EDNY at 1 Ct. Square W., Long Island City, NY 11101. Compl. ¶ 76; Declaration of Patricia 

Wheeler (“Wheeler Decl.”) ¶ 13. Defendant CSC Holdings is Altice USA’s wholly owned subsidiary of Altice USA and a Delaware LLC with its principal place of business in the EDNY at 1111 

Stewart Ave., Bethpage, NY 11714. Compl. ¶ 77; Wheeler Decl. ¶ 4.

1

1 Altice has 174 subsidiaries, which serve different purposes in connection with its various products, services, and partnerships. Three are incorporated in Texas but headquartered with Altice 

USA in the EDNY. Wheeler Decl. ¶ 15. Regardless, these subsidiaries would not be potential 

sources of relevant evidence and are, therefore, immaterial to the present analysis. Id.

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 8 of 22 PageID #: 468
– 4 –

Altice provides broadband internet service to more than 4.5 million subscribers in 21 states. 

Wheeler Decl. ¶ 5. Most residential subscribers (more than 2.6 million) are in the New York area. 

Id. There are 1,695,829 total subscribers (residential and business) in New York—with 1,050,095 

in the EDNY. Id. As for subscribers in Texas, there are only 189,271 total Altice subscribers (residential and business) in this District—with only 3,439 in the Marshall Division. Id. ¶ 6.

Altice’s business, technical, and legal operations are based in its headquarters and nearby 

facilities in the EDNY. Id. ¶ 7. The team that handles notices of alleged copyright infringement is 

in the EDNY. Id. Virtually all the potentially relevant employees for this case work in the EDNY, 

including key executive, management, and operations-level personnel in customer care, products, 

marketing, network engineering, data, finance, and legal. Id. ¶ 7-8. These individuals include William Heberer, Michael Davis, Danny Holton, Christine Cummings, David Kniffin, Ahmed Fayed, 

Audrey Pinn, Beth Rosenfeld, Joe Foster, and George Ziegler, many of whom have been noticed 

for deposition in BMG. Id. ¶¶ 8, 12; Declaration of Sean R. Anderson (“Anderson Decl.”) ¶ 95.

With these relevant teams in the EDNY, Altice’s relevant documents are also overwhelmingly created and handled in the EDNY. Wheeler Decl. ¶ 12. Since mid-2021, these documents 

have been stored with Google’s SQL and Big Query cloud services, which are accessible from 

Altice’s offices. Id.

2 Identifying and understanding the relevant documents and evidence is highly 

complex and will require an Altice witness to navigate. George Ziegler is Altice’s Data Warehouse 

manager and the subject matter expert on the accessibility of documents, data, and other information from the cloud or other sources. Id. He is based in the EDNY (id.), and has been deposed 

in the BMG Case.

2 The SQL servers are in South Carolina, while the Big Query servers are dynamic—previously, 

Altice’s relevant documents were stored in the EDNY and there are relevant documents still only 

stored on servers in the EDNY. Id.

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 9 of 22 PageID #: 469
– 5 –

Altice has work facilities in 30 states. In Texas, Altice has facilities in Plano and Tyler. 

Wheeler Decl. ¶ 13. These are “back office” facilities that involve sales, customer care, and general 

network operations (id.), areas that are not primary sources of any evidence relevant to this case. 

There are no employees in these locations who are reasonably expected to be relevant witnesses.

3

B. Plaintiffs and the Location of Their Documents and Witnesses

All 53 Plaintiffs are subsidiaries of either Warner Music Group Corp. (“WMG”) or Sony 

Group Corp. (“SGC”). Doc. 3; Anderson Decl. ¶¶ 2-4; Ex. 1. WMG’s headquarters is at 1633 

Broadway, New York, NY, 10019. Anderson Decl. ¶ 2. SGC’s United States headquarters is at 25 

Madison Avenue, New York, NY 100010. Id. ¶ 3. The Complaint states that 35 Plaintiffs have 

their principal place of business in New York, 14 in California, 1 in Florida, 1 in Tennessee, and 

1 in the United Kingdom. Compl. ¶¶ 16-73. Not a single Plaintiff is domiciled or has its principal 

place of business in Texas. Id. These entities are named because they purportedly hold the rights 

to the works asserted. Id. at Exs. A & B. And many of the Plaintiffs’ relevant employees likely are 

employed by operating companies in New York. For example, in other, similar, copyright litigation against Internet Service Providers (“ISPs”), many of the individuals who the SGC entities 

have stated have relevant information reside in the New York area, including Dennis Kooker, Jeff 

Walker, Wade Leak, Neil Carfora, Michael Abitbol, and Audrey Ashby. Anderson Decl. ¶¶ 27, 

71, 72. And in other, similar, copyright litigation, many of the individuals who the WMG entities 

have stated have relevant information reside in the New York area, including Jon Glass and Matt 

Flott. See id. ¶ 71, 72. Further, based on their job descriptions, the following New York-based 

individuals who work for the WMG entities likely have relevant information: Julie Greenwald, 

3 Altice also has retail stores throughout the country, including Texas, but nothing relevant takes 

place in these stores. Wheeler Decl. ¶ 14.

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 10 of 22 PageID #: 470
– 6 –

Craig Kallman, Eric Levin, John Beddia, Paul Robinson, Trent Tappe, and Michelle Stallone. Id. 

¶¶ 9-11, 14, 17, 19, 20, 22, 23, 32-37, 39. 

C. The Locations of Third-Party Witnesses

There are more former Altice witnesses now than there were when the transfer decision 

was made in the BMG Case. The BMG plaintiffs noticed the deposition of three Altice employees

who have left the Company since the complaint was filed in that case. Anderson Decl. ¶¶ 95; 

Wheeler Decl.¶ 10. The BMG plaintiffs also subpoenaed five former Altice employees. Anderson 

Decl. ¶¶ 96. In total, there are four former relevant Altice employees who were noticed for deposition or subpoenaed for deposition in the EDNY’s absolute subpoena power. Id. ¶¶ 95-96. But no 

testimony has yet to be obtained or is scheduled to be obtained, from any witnesses in Texas.

Plaintiffs’ agent that is responsible for the notices of alleged direct infringement is OpSec 

Online, LLC (“OpSec”)—a Delaware corporation with its principal place of business in Idaho. 

Compl. ¶¶ 98-99; Anderson Decl. ¶ 59 & Exs. 87, 88. Audible Magic Corp. (“Audible Magic”)

was used to verify OpSec’s data. It is a Delaware corporation with its principal place of business 

in Los Gatos, CA. Anderson Decl. ¶ 61 & Exs. 90, 91. Plaintiffs’ industry representative, which 

manages OpSec and coordinates anti-piracy efforts, is the Recording Industry Association of 

America (“RIAA”). It is based in Washington, D.C. Id. ¶ 62 & Ex. 94. And the defunct Center for 

Copyright Information (CCI), which developed an inter-industry standard between ISPs and copyright owners for handling such notices, was also based in the D.C. area. Id. ¶ 64 & Ex. 97.

III. LEGAL STANDARD

“For the convenience of parties and witnesses, in the interest of justice, a district court may 

transfer any civil action to any other district or division where it may have been brought.” 28

U.S.C. § 1404(a). If the transferee district would be an appropriate venue, a court considers a list 

of eight private and public interest factors. In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) 

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 11 of 22 PageID #: 471
– 7 –

(“Volkswagen I”). A plaintiff’s choice of venue is not a factor. The deference afforded to the plaintiff’s choice is reflected in a defendant’s burden to demonstrate that the transferee venue is “clearly

more convenient” than the plaintiffs’ chosen venue. In re Volkswagen of Am., Inc., 545 F.3d 304, 

315 (5th Cir. 2008) (“Volkswagen II”). Yet this “deference . . . is mitigated by [a plaintiff’s] choice 

to sue away from home and in a district that is unrelated to [the] lawsuit.” Mini Melts, Inc. v. Uniworld Corp. WLL, 2008 WL 4441979, at *5 (E.D. Tex. Sept. 25, 2008).

IV. ARGUMENT

A. This Case Could Have Been Brought in the EDNY.

The EDNY is a proper transferee district, and this case could have been brought in the 

EDNY. The EDNY has subject matter jurisdiction because the case arises under federal law.

Compl. ¶ 8; 28 U.S.C. §§ 1331, 1338. Altice is headquartered in the EDNY, so there would be 

personal jurisdiction and proper venue. 28 U.S.C. §§ 1400(a), 1391(c).

B. Both the Private and Public Interest Factors Heavily Favor Transfer to 

the EDNY.

As demonstrated below, the EDNY is clearly more convenient than the EDTX, when considering the eight private and public interest factors.

1. The relative ease of access to sources of proof weighs in favor of

transferring this case because the bulk of evidence will come from 

the EDNY with none in the EDTX. 

“The first factor focuses on the location of ‘documents and physical evidence relating to 

the [case].’” TikTok, 85 F.4th at 358 (citation omitted). 

This factor weighs in favor of transfer because the bulk of the evidence is in the EDNY. In 

“infringement cases, the bulk of the relevant evidence usually comes from the accused infringer, 

so the place where the defendant’s documents are kept weighs in favor of transfer to that location.” 

Intelligent Automation Design, LLC v. Zimmer Biomet Holdings, Inc., 2016 WL 4424967, at *2 

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 12 of 22 PageID #: 472
– 8 –

(E.D. Tex. July 21, 2016) (citing In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009)). 

“[T]he location of [a party]’s documents tends to be the more convenient venue” because “[i]t is 

presumed that the bulk of the discovery material related to a corporate party is located in that 

party’s corporate headquarters.” Net Navigation Sys., LLC v. Extreme Networks, Inc., 2014 WL 

5465449, at *3 (E.D. Tex. Oct. 27, 2014) (citing In re Genentech, Inc., 566 F.3d at 1345, and In 

re Acer Am. Corp., 626 F3d 122, 1256 (Fed. Cir. 2010)). That is the case here for both parties. 

As explained, the relevant Altice custodians are based in the EDNY with other EDNYbased employees who are responsible for the bulk of relevant documents, data, and information. 

See Wheeler Decl. ¶¶ 7-8, 12. This information includes (1) internal documents regarding Altice’s 

relevant policies and procedures, emails, and other information; (2) source code and related technical information; (3) financials; (4) the notices of alleged copyright infringement; (5) Altice’s 

actions taken with respect to those notices, including regarding subscriber account status; (6) data 

generated by the dedicated team that handles notices and communicates with users; and (7) subscriber account information, including the data necessary to determine which subscriber was linked 

to which IP address at any point in time. See id. ¶¶ 7, 12. These are the types of documents that

Plaintiffs point to in the Complaint. See Compl. ¶¶ 3, 92, 103, 104. These are also the types of 

documents Plaintiffs and related plaintiffs have relied on in other cases. See Anderson Decl. ¶¶ 65-

67. And, importantly, all these documents were generated in, and are now available in, the EDNY

where they are managed by Mr. Ziegler or other EDNY teams. See Wheeler Decl. ¶¶ 12.

That these documents are largely electronic does not neutralize this factor. Because the 

“documents relating to the . . . operation of the” alleged wrongdoing were “generated in” the 

EDNY, this is a fact that “favors transfer even if [the alleged infringer] in theory could offer access 

to that information” in the EDTX. See In re Apple Inc., 2022 WL 1676400, at *1 (Fed. Cir. Apr.

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 13 of 22 PageID #: 473
– 9 –

2022). Here, the key data for this case were generated by a few, select individuals who are all in 

the EDNY. See Wheeler Decl. ¶¶ 8-9. In TikTok, the Fifth Circuit was clear that when, as here, 

“only a select few individuals have access to the key non-witness evidence in th[e] case,” that fact 

weighs in favor of transferring the case to where those employees are located. See 85 F.4th at 359 

n.6. Importantly, in TikTok, “[t]here [were] no employees in the Western District of Texas who” 

had access to the key data outlined above. Id. at 359. And while it “is possible” to bring electronic 

evidence to Texas, the Fifth Circuit has clarified that is not what matters because “the question 

under the first factor is ‘relative ease of access, not absolute ease of access.’” Id. (citation omitted). 

Thus, this factor favors transfer because it “is relatively easier to access . . . the [relevant 

data] in the” EDNY—where “a majority of the [relevant] team is based”—than in the EDTX, 

“where the [relevant data] can be accessed only by bringing far-flung individuals into the district.” 

Id. Indeed, other courts have recently recognized that “under current precedent of Planned 

Parenthood and TikTok,” having electronic documents in the transferee district weighs “slightly 

in favor of transfer” even if the documents “are equally accessible in either forum.” Holloway v. 

City of Fort Worth, 2024 WL 96666, at *5 (E.D. Tex. Jan. 9, 2024). Since TikTok, this Court has 

also recognized that “the greater amount of evidence in” the transferee district “tips the balance 

slightly in favor of transfer” even with the presence of a single store in this District, because of the 

relative access to sources of proof. See Athalonz LLC v. Under Armour, Inc., 2023 WL 8809293, 

at *3 (E.D. Tex. Dec. 20, 2023) (Gilstrap, J.). This factor supports transfer.

2. The availability of compulsory process weighs in favor of transferring this case because the EDNY has subpoena power over nonparty witnesses that the EDTX does not. 

“The second factor focuses on ‘the availability of compulsory process to secure the attendance of witnesses.’” TikTok, 85 F.4th at 360 (citation omitted). 

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 14 of 22 PageID #: 474
– 10 –

This factor supports transfer because the EDNY has absolute subpoena power over several 

potentially relevant individuals. To date, the BMG plaintiffs have sought the deposition of four 

former Altice employees in the EDNY’s absolute subpoena power: Keith Agabob, Marian O’Hagan, Nodir Nazarov, and Robert Egan. Anderson Decl. ¶¶ 95-96. Three of these employees were 

employed by Altice when the motion to transfer was denied in BMG. Wheeler Decl. ¶ 10. But now 

that they are former employees, for purposes of this analysis, they are presumed unwilling to testify. Opulent Treasures, Inc. v. Ya Ya Creations, Inc., 2022 WL 965394, at *3 (E.D. Tex. Mar. 30, 

2022) (“[W]hen 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.”) (citation omitted). This is 

because it is “highly unlikely that” a witness would “willingly offer testimony that could impugn

[a] business partner”—or, here, a former employer. See Athalonz, 2023 WL 8809293, at *7.

While this Court concluded in BMG that relevant testimony may come from non-party 

witnesses in Texas, based on arguments proffered by the BMG plaintiffs, that has not come to 

fruition. Indeed, to date (with only two months left in fact discovery), no testimony has yet to be 

obtained, or is scheduled to be obtained, from any witnesses in Texas. Put simply, there is no one 

in Texas with relevant information about the issues in this case, which “necessarily tips towards 

transfer.” Athalonz, 2023 WL 8809293, at *8 (citation omitted).

Moreover, several of Plaintiffs’ former employees are likely in the absolute subpoena 

power of EDNY, and would thus presumed unwilling to voluntarily testify. It is “reasonable to 

assume” that Plaintiffs’ former employees “reside within” and are subject to compulsory process 

in the EDNY because that was where they were previously listed to have resided in other cases. 

See Network Prot. Scis., LLC v. Juniper Networks, Inc., 2012 WL 194382, at *5 (E.D. Tex. Jan. 

23, 2012). This further supports transfer to the EDNY.

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 15 of 22 PageID #: 475
– 11 –

3. The cost of attendance for willing witnesses weighs in favor of transferring this case because the bulk of witnesses are in the EDNY and 

more than 100 miles from the EDTX.

“The third factor focuses on ‘the cost of attendance for willing witnesses.’” TikTok, 85 

F.4th at 361 (citation omitted). This Court must use “a ‘100-mile threshold’ in assessing this factor.” Id. The Fifth Circuit has explained that it “‘is more convenient for witnesses to testify at 

home[,]’ and ‘additional distance means additional travel time . . . meal and lodging expenses’ and 

time ‘witnesses must be away from their regular employment.’” Id. Thus, when “the ‘bulk of relevant witnesses’”—party or non-party—are in the transferee district, “it is indisputable” that the 

transferee district “is a clearly more convenient venue for most relevant witnesses in the case” and 

concluding otherwise would be “a clear abuse of discretion.” Id. at 361–62.

As in TikTok, this Court’s “analysis of this factor should [] end[] with its recognition that 

‘the bulk of relevant witnesses [are]” in the transferee district. See id. at 362. Indeed, “it is ‘clear 

that the combination of multiple parties being headquartered in or near the transferee venue . . . is 

an important consideration.” Voxpath RS, LLC v. LG Elecs. U.S.A., Inc., 2012 WL 194370, at *4 

(E.D. Tex. Jan. 23, 2012) (Gilstrap, J.). And, as outlined above, the overwhelming majority of the

parties are headquartered in New York, where most of the witnesses are based. Anderson Decl. ¶¶

6-58. Thus, because most potential witnesses are in the EDNY, it “is a clearly more convenient

venue for most relevant witnesses in this case.” TikTok, 85 F.4th at 361–62. And “it is reasonable 

to conclude that the numerous party witnesses of a majority of the [parties] will avoid material 

inconvenience if this case is transferred to the” EDNY. See Voxpath, 2012 WL 194370, at *3. 

Transfer would also make attending this litigation far more convenient for any of Altice’s 

and Plaintiffs’ former employees who elect to testify. “The convenience of non-party witnesses . . 

. is the more important factor and is accorded greater weight in a transfer of venue analysis.” Id.

(citation omitted). And while some nonparties are dispersed around the country, more nonparties

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 16 of 22 PageID #: 476
– 12 –

are in New York. Anderson Decl. ¶¶ 27, 59-72. Thus, “it would be more convenient for party and 

nonparty witnesses to attend trial in the” EDNY because “there are more witnesses”—party and 

nonparty—“located in the transferee district who will be inconvenienced if the case is not transferred.” Voxpath, 2012 WL 194370, at *5 (bold emphasis added). And for the third parties like 

OpSec, Audible Magic, the RIAA, and CCI, which are outside New York, it will be more convenient to travel to the EDNY than to the EDTX when accounting for travel time, logistics, and flight 

availability. Anderson Decl. ¶¶ 86-91. At minimum, they “will experience no more inconvenience 

by traveling to [the New York area] than Marshall.” Voxpath, 2012 WL 194370, at *5. 

As in TikTok, the presence of a few non-New York witnesses—none of whom are in the 

EDTX—“cannot overcome the immense inconvenience that the majority of relevant witnesses 

would face if this case were to be tried in Texas.” 85 F.4th at 361–62 (citation omitted).

4. The lack of practical problems weighs in favor of transferring this 

case because this case just started.

“The fourth factor considers ‘all other practical problems . . . .’” TikTok, 85 F.4th at 362.

This factor “slightly favors transfer” because “[t]his case is in an early stage,” “[n]o hearings have 

been held and the parties have exchanged no formal discovery.” In re Marquette Transp. Co. GulfInland, LLC, 2012 WL 2375981, at *2 (S.D. Tex. June 21, 2012).

5. The administrative difficulties from court congestion factor is neutral because of the docket efficiency in the EDNY and EDTX. 

“The fifth factor considers ‘the administrative difficulties flowing from court congestion.” 

TikTok, 85 F.4th at 363 (citation omitted). “The focus is on ‘docket efficiency.’” Id. (citation omitted). This factor is neutral. While the EDTX’s average time to trial is less than the EDNY’s (EDTX 

at 19 months and EDNY at 62.1 months), the average time from filing to disposition is less for the 

EDNY (EDNY at 5.1 months and EDTX at 8.4 months). See U.S. District Courts, Combined Civil 

and Criminal Federal Court Management Statistics (Sept. 30, 2023). Moreover, looking at 

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 17 of 22 PageID #: 477
– 13 –

“Weighted Filings,” the EDNY is more efficient than the EDTX (EDNY at 594 cases and EDTX 

at 660 cases). See id. Thus, this is not a case where “docket efficiency can be reliably estimated.” 

In re Planned Parenthood Fed’n of Am., Inc., 52 F.4th 625, 631 (5th Cir. 2022). Because the comparison between the docket efficiency between the EDTX and EDNY is “speculative,” this factor

“should be found to be neutral in this venue analysis.” Mears Techs., Inc. v. Finisar Corp., 2014 

WL 1652603, at *4 (E.D. Tex. Apr. 24, 2014) (Gilstrap, J.).

6. The local interest in having localized interests decided at home

weighs in favor of transferring this case because the place of the 

alleged wrong is in the EDNY, not the EDTX.

“The sixth factor considers ‘the local interest in having localized interests decided at 

home.’” TikTok, 85 F.4th at 363 (citation omitted). “Indeed, the place of the alleged wrong is one 

of the most important factors in venue determinations.” TikTok, 85 F.4th at 364 (citation omitted).

The place of the alleged wrong here is not in Texas (let alone the EDTX), where some of 

Altice’s users who are the subject of Plaintiffs’ notices are alleged to be located. The place of the 

alleged wrong is in New York—where Plaintiffs sent their notices, where Altice received those 

notices, where it developed business policies relating to handling those notices, and where it purportedly benefitted from those decision. Critically, it is also the place where Plaintiffs purportedly 

experienced their alleged harm. See Compl. ¶¶ 3, 92, 103, 104, 113, 125. The notion that the EDTX 

has a localized “interest in this [copyright infringement] case because” Plaintiffs allege sporadic

alleged instances of infringement by a subset of users of Altice’s network “in Marshall . . . stretches

logic in a manner that eviscerates the public interest that this factor attempts to capture.” 

Volkswagen II, 545 F.3d at 318. This is because “[i]nterests that could apply virtually to any judicial district or division in the United States, . . . are disregarded . . . .” Voxpath, 2012 WL 194370, 

at *6 (quotes omitted).

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 18 of 22 PageID #: 478
– 14 –

Plaintiffs’ focus on Altice’s provision of internet in Texas does not establish a localized 

interest. They do not allege that they directed their notices only at Texas. Nor could they; their

allegations emphasize that “BitTorrent has been and continues to be used widely as a vehicle to 

infringe content online,” and that Altice “markets and sells high-speed Internet service to consumers nationwide.” Compl. ¶¶ 3, 92. Just because some Texas users of Altice’s network are alleged 

to have infringed, that “does not establish an actual local interest in this District because these 

allegedly infringing [acts] almost certainly . . . [occur] from [Defendants]’ users across the nation.”

Word to Info, Inc. v. Facebook, Inc., 2015 WL 13870507, at *5 (N.D. Tex. July 23, 2015). Indeed,

aside from pointing out alleged infringement in Texas, the Complaint does “absolutely nothing . . 

. to indicate that the people of Marshall, or even the Eastern District of Texas, have any meaningful 

connection or relationship with the circumstances of these claims.” Volkswagen I, 371 F.3d at 206.

In stark contrast, the EDNY has a meaningful connection and direct relationship with the 

underlying circumstances of these claims, which is paramount given that the focus for this factor 

is on “the significant connections between a particular venue and the events that gave rise to a 

suit.” TikTok, 85 F.4th at 364 (citation omitted). As discussed, the Complaint makes it clear that 

all the events that gave rise to the suit revolve around Altice’s corporate actions. See Compl. ¶¶ 3, 

92, 103, 104, 113, 125. These alleged acts took place in the EDNY. Wheeler Decl. ¶ 7. 

In addition to being the location of Altice’s decisionmakers, where most of Altice’s employees are based, and where Plaintiffs are based and experienced their purported harm, the EDNY 

clearly has a localized interest in the resolution of a major dispute between one of the nation’s 

largest ISPs and two of the largest music companies in the world—all of which are based in New 

York with thousands of employees in New York. New York is the major locus for the music industry. Indeed, the U.S. Bureau of Labor Statistics has reported that New York leads the nation 

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 19 of 22 PageID #: 479
– 15 –

with the highest published employment for Musicians and Singers. Anderson Decl. ¶ 92. The New 

York City Mayor’s Office has reported that “New York City is home to one of the world’s largest 

– if not the largest – and most influential music ecosystems, supporting nearly 60,000 jobs, accounting for roughly $5 billion in wages, and generating a total economic output of $21 billion[.]” 

Id. ¶ 93. The State of New York and these New Yorkers “have a significant interest” in the resolution of this case, as evidenced by the fact that New York is “the Plaintiff[s’] residence” and the 

location of many witnesses for both parties—and these are “[i]mportant considerations” that cannot be discounted. See Def. Distributed v. Bruck, 30 F.4th 414, 435 (5th Cir. 2022). 

7. The familiarity of the forum factor is neutral because both the 

EDNY and EDTX are equally capable of resolving this suit. 

“The seventh factor considers the current district’s ‘familiarity with the law that will govern the case.’” TikTok, 85 F.4th at 365 (citation omitted). “This factor does not weigh in favor of 

transfer when both districts are ‘equally capable of applying the relevant law.’” Ibid. There is

nothing arcane about copyright law, as all federal courts are equally equipped to handle such cases.

See, e.g., Godo Kaisha IP Bridge 1 v. Xilinx, Inc., 2017 WL 4076052, at *5 (E.D. Tex. Sept. 14, 

2017). It would be error for a court to “assum[e] that it was more capable at applying [copyright] 

law than are the judges of [other Districts]” without there being any “exceptionally arcane aspects 

of [copyright] law governing [the Plaintiffs’] . . . claims.” TikTok, 85 F.4th at 366.

8. The avoidance of problems of conflict of laws factor is neutral because there are no conflict of law issues.

“The eighth factor focuses on “the avoidance of unnecessary problems of conflict of laws 

[or in] the application of foreign law.” TikTok, 85 F.4th at 366. This factor is neutral. 

V. CONCLUSION

For these reasons, Altice respectfully requests that the case be transferred to the EDNY for 

the convenience of the parties and witnesses and in the interest of justice. 

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 20 of 22 PageID #: 480
Dated: January 29, 2024 Respectfully submitted,

 By: /s/ Michael S. Elkin

Wesley Hill

State Bar No.: 24032294

WARD, SMITH & HILL, PLLC

1507 Bill Owens Parkway

Longview, TX 75604

(903) 757-6400

wh@wsfirm.com

Thomas M. Melsheimer

State Bar No.: 13922550

WINSTON & STRAWN LLP

2121 N. Pearl Street, Suite 900

Dallas, TX 75201

(314) 453-6500

tmelsheimer@winston.com

Sean H. Suber*

WINSTON & STRAWN LLP

35 W. Wacker Dr.

Chicago, IL 60601

(312) 558-5600

ssuber@winston.com

Clement S. Roberts

ORRICK HERRINGTON & SUTCLIFFE LLP

405 Howard Street

San Francisco, CA 94015

(415) 773-5700

croberts@orrick.com

Michael S. Elkin* 

Krishnan Padmanabhan* 

Sean R. Anderson*

WINSTON & STRAWN LLP

200 Park Avenue 

New York, NY 10166

(212) 294-6700

melkin@winston.com

Jennifer A. Golinveaux* 

WINSTON & STRAWN LLP

101 California Street, 35th Floor

San Francisco, CA 9411

(415) 591-1506

jgolinveaux@winston.com

Diana Leiden*

WINSTON & STRAWN LLP

333 South Grand Avenue, 38th Floor

Los Angeles, CA 90071

(213) 615-1700

dhleiden@winston.com

Christopher J. Cariello* 

ORRICK HERRINGTON & SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

ccariello@orrick.com

Mark S. Puzella*

ORRICK HERRINGTON & SUTCLIFFE LLP

222 Berkely Street, Suite 2000

Boston, MA 02116

(617) 880-1801

mpuzella@orrick.com

Attorneys for Defendants Altice USA, Inc. and CSC Holdings, LLC

*Pro Hac Vice

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 21 of 22 PageID #: 481
CERTIFICATE OF SERVICE

The undersigned hereby certifies that 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 per Local Rule CV-5(a)(3) on January 29, 2024.

/s/ Michael S. Elkin

CERTIFICATE OF CONFERENCE

The undersigned hereby certifies that counsel for Defendants has complied with the meet 

and confer requirement in Local Rule CV-7(h). This motion is opposed. The personal conference 

required by Local Rule CV-7(h) was conducted on January 23, 2024, by videoconference between 

Michael S. Elkin and Jeffrey M. Gould. No agreement could be reached, and the discussions have 

conclusively ended in an impasse, leaving an open issue for the court to resolve.

/s/ Michael S. Elkin

Case 2:23-cv-00576-JRG-RSP Document 26 Filed 01/29/24 Page 22 of 22 PageID #: 482