To potential defendants BEWARE if you want to bolster your argument for transfer and you believe that some key witnesses will be former employees, be prepared to make a demonstration in your transfer briefs that they will be unwilling to testify voluntarily or that you cannot get their information in some other fashion. And know that if you are incorporated here in Delaware, and choose to reap both the legal and business benefits of being incorporated in this state, that you should expect to litigate here and there will be little sympathy for your motion to transfer elsewhere. Even similar litigation between the parties elsewhere may not be enough!
The District Court once again gave deference to plaintiff’s choice of forum and refused to transfer a patent infringement case to the Northern District of Georgia where other litigation between the same parties is pending. Nice Systems, Inc. and Nice Systems, Ltd. v. Witness Systems, Inc., C.A. No. 06-311 (D. Del. Oct. 12, 2006) (Farnan, J.). The Court applied the Jumara factors (Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995)) including six private interest factors and six public interest factors in reaching its conclusion. Both parties in this case are incorporated in Delaware and the Court stressed that defendant, after choosing to incorporate here, cannot now complain that it is inconvenient to litigate here. In a question that frequently arises in this District, the Court again stressed that employee witnesses are presumed willing to testify at trial and therefore the convenience of current employees will not be part of the analysis. As to former employees, the Court admitted that they may be beyond the subpoena power of the Court, but would not tip the balance to transfer here because the defendant did not make any showing that the former employees would be unwilling to testify voluntarily or that their information was not available in some other way. Finally, even where this case involved some overlap of parties, products and technologies with three cases pending in the N. D. Ga., Judge Farnan concluded this did not weigh in favor of transfer. The cases in Georgia are “at various stages in litigation before three different judges and two of the pending cases have survived a motion to consolidate” and therefore the Court did not feel that transfer would serve the interests of judicial economy. Id. at 7.