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`behalf of TWC—it is an email to TWC with no response. Further, there is no evidence in the record
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`that the TWC recipient ever responded. Because the only statements in PTX034 are those of
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`Touchstream, they are hearsay and inadmissible by Touchstream.
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`II.
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`ARGUMENT
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`Touchstream’s erroneous characterization of the statements in these hearsay documents as
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`“admissions by a party opponent” (Objection at page 2) is at odds with the exhibits themselves.
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`Looking at the plain face of the emails of PTX007, PTX026, PTX034 and PTX038, it is clear that
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`there is no statement, let alone any admission, by Charter or TWC. The fact that one of these emails
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`was sent to a TWC employee (Chris Cholas, PTX034) does not convert a statement by
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`Touchstream into an admission by Charter.
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`Touchstream states that the exhibits go to Charter’s state of mind and are relevant to
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`willfulness or damages, but “relevance” (assuming for the sake of argument there is relevance) is
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`not an exception to hearsay. Moreover, the “state of mind” exception under FRE 803(3) relates to
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`a declarant’s state of mind, and the only declarants in the exhibits are Touchstream personnel.
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`Therefore, FRE 803(3) and the state of mind exception do not apply to these documents.
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`In addition, the exhibits are not business records. As argued and explained by the Court
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`during the January 3, 2025 pretrial conference,2 all emails are not business records under FRE
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`803(6). Only records of a regularly conducted activity of a business constitute an exception to
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`hearsay. Fed. R. Evid. 803(6); Rock v. Huffco Gas & Oil Co., 922 F.2d 272, 279 (5th Cir. 1991)
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`2 Dkt. 252 at 23:7-8 (The Court: “I mean, an email rarely qualifies as a business record.”). Dkt. 252
`at 24:23-24 (The Court: “[I]t is not impossible for email to be business records, but it would be
`very unusual.”). Dkt. 252 at 40:17-23 (The Court: “[B]usiness records are not just any record that
`the business makes to run their business. . . . [A] business record is supposed to be something that
`is updated, kept contemporaneously by somebody with knowledge, and it -- frankly, it takes a
`declaration from the custodian. You know, there’s a lot to 803(6) other than just saying this is a
`record that a business created.”).
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`(explaining that the business record exception rests on the assumption of reliability). Even where
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`a record meets some requirements of FRE 803(6), it still is not a business record if the “source of
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`information or the method or circumstances of preparation indicate a lack of trustworthiness.” Fed.
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`R. Evid. 803(6); see Versata Software, Inc. v. Internet Brands, Inc., No. 2:08–cv–313–WCB, 2012
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`WL 2595275, at *3-8 (E.D. Tex. July 5, 2012). This is particularly true when the emails contain
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`puffery and subjective beliefs, as here, and when Touchstream admitted it had no “
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`” of sending emails to accurately memorialize meetings as a regular part of their business.
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`(Ex. 5, J. Cohen Tr. 85:19-23, 86:10-16 (“[
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`.”).)
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`To be sure, PTX034 was collected and produced by Charter in discovery because it was
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`sent to Charter by Touchstream, but this does not make the email a business record of either party.
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`In Versata, the Court addressed this very issue:
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`The fact that a copy of the [ ] e-mail was produced for trial purposes does not establish
`that such e-mails were routinely retained for consultation and use. Copies of electronic
`correspondence are frequently subject to retrieval, at least absent affirmative steps to
`eradicate them from a computer system. However, the fact that a party may be able to
`retrieve an electronic record, such as in connection with litigation, does not mean that
`the party has retained that document in a system of records that have been “kept” or
`“maintained” as business records for subsequent use and consultation. See United States
`v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000); Michael H. Dore, Forced Preservation:
`Electronic Evidence and the Business Records Hearsay Exception, 11 Colum. Sci. & Tech.
`L. Rev. 76 (2010) (“Many electronic records . . . remain in a company’s files only because
`the company had a duty to preserve them once it reasonably anticipated litigation or a
`government subpoena. The company otherwise typically would have deleted those
`electronically stored data in the regular operation of its business to make room on its
`burdened servers . . . . [S]uch presumptive deletion undermines the trustworthiness and
`reliability of a business record, and thus the rationale of Rule 803(6). Courts should
`therefore focus on the unique elements of the creation and preservation of electronic
`evidence, and consider whether a company truly kept the record at issue in the course of
`business, or simply because a duty to preserve required it.”).
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`Versata Software, Inc., 2012 WL 2595275, at *6 n.1 (emphasis added).
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`Touchstream has failed to justify admitting PTX007, PTX026, PTX034 and PTX038, and
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`the Magistrate Judge did not clearly err in sustaining Charter’s objections to their admission.
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`III. CONCLUSION
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`For the foregoing reasons, Charter respectfully requests that this Court overrule
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`Touchstream’s objections to the evidentiary rulings pertaining to PTX007, PTX026, PTX034 and
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`PTX038 and the exhibits remain not preadmitted for trial.
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`Dated: January 27, 2025
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`Respectfully submitted,
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`/s/ Daniel Reisner
`Daniel L. Reisner, pro hac vice
`David Benyacar, pro hac vice
`Melissa Brown, pro hac vice
`Robert Stout, pro hac vice
`Arnold & Porter Kaye Scholer LLP
`250 West 55th Street
`New York, NY 10019
`daniel.reisner@arnoldporter.com
`david.benyacar@arnoldporter.com
`melissa.brown@arnoldporter.com
`robert.stout@arnoldporter.com
`
`Dina M. Hayes, pro hac vice
`Arnold & Porter Kaye Scholer LLP
`70 West Madison Street, Suite 4200
`Chicago, IL 60602
`dina.hayes@arnoldporter.com
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`Deron Dacus (State Bar No. 00790553)
`THE DACUS FIRM, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, TX 75701
`Tel: (903) 705-1117
`Fax: (903) 581-2543
`ddacus@dacusfirm.com
`
`Carson D. Anderson, pro hac vice
`3000 El Camino Real, Bldg. 5, Suite 500
`Palo Alto, CA 94306
`carson.anderson@arnoldporter.com
`
`Marc A. Cohn, pro hac vice
`Stanton Jones, pro hac vice
`Natalie Steiert, pro hac vice
`601 Massachusetts Avenue, NW
`Washington, DC 20001
`marc.cohn@arnoldporter.com
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`stanton.jones@arnoldporter.com
`natalie.steiert@arnoldporter.com
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`Counsels for Defendant Charter
`Communications, Inc., Charter
`Communications Operating, LLC, Spectrum
`Management Holding Company, LLC, Time
`Warner Cable Enterprises, LLC, Spectrum Gulf
`Coast, LLC, Charter Communications, LLC
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