TikTok’s ‘Grossly Insufficient’ Discovery Responses Lead to Motion to Compel in Cellspin Soft Patent Case
“[N]ews reports cited by Cellspin Soft in its recent motion to compel additional discovery allegedly establish that ByteDance is withholding information…”
On June 6, patent owner Cellspin Soft filed a motion to compel in the Eastern District of Texas seeking a court order requiring Chinese social media company TikTok to provide additional responses to interrogatories regarding proper venue in the case. Cellspin Soft’s motion charges TikTok with refusing to provide information within the company’s knowledge about several venue-related aspects of the case, including the identity of corporate whistleblowers and the location of servers used by TikTok’s data security initiative known as Project Texas.
Massive ‘Project Texas’ Source Code Project Establishes Proper Venue in Eastern Texas
Cellspin Soft filed its patent infringement suit against TikTok’s parent company ByteDance in October of last year, asserting a series of seven patents-in-suit claiming methods of publishing multimedia content with the use of Bluetooth-enabled mobile devices. In the original complaint, Cellspin Soft alleged that venue was proper in Eastern Texas under the state’s long arm statute as TikTok induced infringement of the asserted patents in that district. Venue is further proper in Eastern Texas due to TikTok’s agreement with computer technology company Oracle, which is headquartered in Austin, TX, to review TikTok’s source code for data security concerns. This initiative, codenamed “Project Texas,” is allegedly storing user data exclusively on Oracle servers within the state of Texas.
While ByteDance’s answer to Cellspin Soft’s complaint did not challenge venue on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(3), ByteDance filed a motion to transfer the case at the end of this February. On March 20, both parties entered a joint motion to conduct expedited venue discovery, resulting in Cellspin Soft serving a series of interrogatories on Byte Dance. Among other information, Cellspin Soft’s interrogatories asked ByteDance to identify the location of servers hosting user data, data processing and source code for TikTok’s accused instrumentalities; employees possessing knowledge related to the design, data processing and marketing of the accused instrumentalities; employees possessing knowledge relating to Oracle’s business activities involving the accused instrumentalities; and the identity of the TikTok whistleblower who informed U.S. Senator Josh Hawley (R-MO) and other lawmakers in D.C. about insufficient data privacy guardrails in TikTok’s Project Texas initiative.
ByteDance’s responses to Cellspin Soft’s interrogatories roundly objected to the information being sought as unduly burdensome and disproportionate to the limited venue issues before the court. While ByteDance’s redacted responses disclosed some location information related to servers hosting data used by accused instrumentalities or involved with Oracle’s source code review, the Chinese defendant maintained that none of those servers were located in the Eastern District of Texas. In response to Cellspin Soft’s request related to the TikTok whistleblower, ByteDance denied having any employees with knowledge of the whistleblower and named Michelle Huang, a ByteDance employee living in New York, as someone knowledgeable about Project Texas.
TikTok Offers ‘Grossly Insufficient’ Responses on Server Locations, Knowledgeable Employees
However, news reports cited by Cellspin Soft in its recent motion to compel additional discovery allegedly establish that ByteDance is withholding information about the TikTok whistleblower’s identity. A Gizmodo article from March 2023 quoted a TikTok spokesperson who stated that the former employee notifying Sen. Hawley and others about the Project Texas concerns left the company in February of 2022.
Further, Cellspin Soft noted that ByteDance’s named employee, Michelle Huang, is not an active member of Project Texas, has no interaction with Oracle and has no knowledge of relevant third-party servers located in Eastern Texas or elsewhere. Following three hours of deposition time, during which Huang was unable to answer questions about Project Texas or interactions with Oracle employees, Huang allegedly identified a different TikTok employee named Will Ferrell as having the requested information. ByteDance allegedly offered to make Ferrell available for deposition for a single hour if Cellspin Soft ended its deposition of Huang, although Cellspin Soft’s motion to compel seeks five hours of deposition time with Ferrell.
Cellspin Soft’s motion to compel also argues that ByteDance’s responses related to server location are “grossly insufficient” and do not comport with publicly available data regarding TikTok’s use of several major data centers in Texas to host user data and source code. Cellspin Soft cites a regulatory disclosure by Dallas, TX-based CyrusOne Data acknowledging that “TikTok is one of the largest tenants in its portfolio.” Despite public data indicating the extent of TikTok’s use of servers in Texas, TikTok’s Head of Engineering, Yufan Zhu, “inexplicably know of only 2 (two) in Dallas.” Cellspin Soft alleges that TikTok has invested $2 billion into Project Texas and seeks more transparent discovery on server agreements with CyrusOne Data and other companies that have publicly acknowledged working with TikTok.
Along with revised interrogatory responses and additional deposition time, Cellspin Soft moves for 60 more days of venue discovery to respond to ByteDance’s motion to transfer.
Image Source: Deposit Photos
Author: ChinaImages
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Steve Brachmann
Steve Brachmann is a graduate of the University at Buffalo School of Law, having earned his Juris Doctor in May 2022 and served as the President of the Intellectual Property […see more]
