Case 2:23-cv-00059-JRG-RSP Document 326-3 Filed 02/13/25 Page 1 of 4 PageID
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`Exhibit 3
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`Case 2:23-cv-00059-JRG-RSP Document 326-3 Filed 02/13/25 Page 2 of 4 PageID
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`Alena Farber
`DAVIS POLK & WARDWELL LLP
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`January 29, 2025
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` Philip Eckert
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` 1401 New York Avenue, N.W.
` Washington, D.C. 20005
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` (202) 274-1141
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`450 Lexington Avenue
`New York, NY 10017
`Email: alena.farber@davispolk.com
`Re: Touchstream. v. Comcast, Case No. 2:23-cv-00062 (E.D. Tex. 2023)
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`Dear Alena,
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`We write regarding Comcast’s selective and misleading disclosures made months after the
`close of discovery, and to request reasonable follow-up discovery to complete that record.
`Seven weeks ago, on December 11, 2024, Comcast served a supplemental interrogatory
`response stating Comcast will discontinue its Xfinity TV Remote application in December
`2024, accompanied by a small document production, and inviting Touchstream to take a
`short deposition of a Comcast engineer, Mr. Evan Cohen, on the details of this supplement.1
`Comcast has not further supplemented this interrogatory response or produced further
`documentation. Yesterday Comcast’s witness, Evan Cohen, demonstrated that this
`interrogatory response is inaccurate, and that the app is still available to users because it
`was turned back on. Comcast’s supplemental interrogatory response, accompanying
`document production, and the selection and preparation of its witness on this issue, appears
`to select the facts most favorable to Comcast and ignore or withhold all other information.
`This is improper. Touchstream demands Comcast provide the full story.
`Comcast’s signed interrogatory response stated the application was discontinued in part
`because it was unpopular and only used by a “small number of Comcast customers.”2 Mr.
`Cohen, however, testified that shortly after the app’s services were shut down, the
`production support team, including the customer care team, asked for the application to be
`reinstated “because they needed additional time to update documentation.”3 An internet
`search after the end of this time-constrained deposition also showed these claims to be false.
`Guided by yesterday’s deposition testimony, we located publicly available evidence of
`widespread complaints from Comcast customers once the feature was turned off, followed
`by Comcast quickly assuring customers they could have the feature back, which we plan
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`1 On that day, Comcast offered to produce Mr. Cohen for deposition on this issue on a single date, January
`7, 2025, at a time when trial in this case was set for January 13, 2025, less than a week later. After that trial
`was re-scheduled, the parties later agreed to move that deposition to January 28, with Comcast set as the third
`trial in line for February 7.
`2 Comcast’s December 11, 2024 Supplemental Response to Touchstream’s Interrogatory No. 10, at 8.
`3 Cohen 1/28/25 Rough. Tr. 29:7-31:25.
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`Case 2:23-cv-00059-JRG-RSP Document 326-3 Filed 02/13/25 Page 3 of 4 PageID
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`to produce today. Comcast’s interrogatory response thus appears, at best, to not tell the full
`story.
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`Comcast has long been on notice of its obligation to produce all information in this respect,
`and Comcast’s decision to omit this type of highly probative customer care information
`from its supplemental production in advance of Mr. Cohen’s deposition is troubling. We
`wrote you on June 20, 2023 to make clear we expected Comcast to produce all “[c]ustomer
`feedback relating to the accused Xfinity mobile applications, such as surveys or reviews,
`and any analysis or summaries of the feedback” and all “[b]usiness plans and valuations
`for the Accused Functionalities and the accused Xfinity mobile applications.”4 Further, the
`Discovery Order in this case orders that “without awaiting a discovery request” the parties
`are to produce “all documents, electronically stored information, and tangible things in the
`possession, custody, or control of the party that are relevant to the pleaded claims or
`defenses involved in this action.”5 And as you are well aware, the duty to supplement under
`the Federal Rules of Civil Procedure persists after the close of discovery, and certainly
`accompanies the selective supplemental production Comcast chose to make well after the
`close of fact discovery in this case.6
`Given the above obligations, it was improper for Comcast to supplement the record with
`selective information from its engineers about the purported reasons for sunsetting its
`Xfinity TV Remote application, but not produce consumer communications and Comcast’s
`authentic internal business communications on the same and Comcast’s decision to turn
`the app back on. Further, Mr. Cohen was unprepared to speak on behalf of the company on
`other basic and obvious issues on the original topic of Comcast sunsetting the application,
`such as who was involved in the decision outside of his immediate team or whether this
`litigation played a role in the decision for anyone outside his team.7
`We demand Comcast complete the record on this matter by confirming, by Thursday
`January 30, that Comcast will provide each of the following by next Tuesday,
`February 4:
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`4 Gray Letter, June 20, 2023.
`5 Dkt. 72, 3-4.
`6 Fed. R. Civ. P. 26(e); Ramirez v. City of El Paso, Texas, No. EP-17-CV-00193-DCG, 2022 WL 16702705,
`at *1 (W.D. Tex. Nov. 2, 2022) (citing Covil Corp. ex rel. Protopapas v. U.S. Fid. & Guar. Co., 544 F. Supp.
`3d 588, 595–96 (M.D.N.C. 2021) (collecting cases)).
`7 Cohen 1/28/25 Rough. Tr. 25:24-26:10 (naming person “for our team” who made the decision to sunset the
`app but could not “speak to other parts of the organization”); 27:8-20 (testifying a Ms. Gupta “would have
`been the primary person to make the decision as far as I can tell”) (emphasis added); 27:22-28:19 (admitting
`he does not know who else was involved in the decision); 40:2-41:8 (Mr. Cohen “not aware of” what role
`this litigation played in the decision to sunset and not aware of reasons beyond those in the documents he
`reviewed to prepare for the deposition).
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`1) Producing or logging all written communications on the subject of Comcast’s
`decision to turn off the Xfinity TV Remote application and Comcast’s decision to
`“roll[] back” the changes that were made to prevent current app users from using
`the accused feature;
`2) Producing all call logs and customer feedback and inquiries about the Xfinity TV
`Remote application since November 2024 and any Comcast responses thereto and
`internal written communications about those instances of feedback and inquiries;
`3) Supplementing its response to Touchstream’s Interrogatory Number 10 to include
`a description of “who was involved in preparing business plans for the Accused
`Functionalities,” including business plans to shut down and then reinstate the
`Accused Functionalities, and “for each individual identified, a description of the
`individual’s work performed on such plans and strategies”; and
`4) Supplementing its response to Touchstream’s common Interrogatory Number 9 to
`explain Comcast’s contention on why its decision to “roll back” its sunsetting of
`the app for current app users was not willful infringement of Touchstream’s patents.
`Additionally, please confirm the following by Thursday January 30::
`1) Comcast does not oppose a supplemental report of Dr. Mangum regarding
`Comcast’s attempt to sunset the Xfinity TV Remote application and accompanying
`productions and testimony;
`2) Comcast does not oppose a supplemental report from Dr. Almeroth report regarding
`Comcast’s attempt to sunset the Xfinity TV Remote application and accompanying
`productions and testimony;
`3) Comcast will join Touchstream’s motion to add pre-admitted exhibits regarding
`Comcast’s decision to sunset the Xfinity TV Remote application, and to expand the
`number of pre-admitted exhibits allowed in this case to the extent necessary;
`4) Comcast will provide a 30(b)(6) witness on the knowledge of Comcast as a
`company on Comcast’s decision to sunset the Xfinity TV Remote application and
`ensuing decision to reinstate the application, once the above-requested production
`is complete;
`If Comcast does not agree to any aspect of the above, please respond on Thursday, January
`30, proposing a time on Friday, January 31, to meet and confer on these issues.
`Touchstream reserves all its rights to seek appropriate relief from the Court.
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`Regards,
`Philip Eckert
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