Case 2:23-cv-00059-JRG-RSP Document 326-4 Filed 02/13/25 Page 1 of 7 PageID
`#: 14181
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`Exhibit 4
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`Firefox
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`https://outlook.office.com/mail/id/AAQkAGY5ZTVkNjViLWMzYTg...
`Case 2:23-cv-00059-JRG-RSP Document 326-4 Filed 02/13/25 Page 2 of 7 PageID
`#: 14182
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`Outlook
`
`RE: Touchstream v. Comcast | 2:23-cv-00062-JRG-RSP
`
`From Park, James Y. <james.park@davispolk.com>
`Date Wed 2/5/2025 12:07 PM
`To
`Jordan Bergsten <jbergsten@bsfllp.com>; Philip Eckert <peckert@bsfllp.com>; Touchstream
`<Touchstream@bsfllp.com>; Melissa Richards Smith <melissa@gillamsmithlaw.com>; Tom Gorham
`<Tom@gillamsmithlaw.com>; McKellar Karr <McKellar@gillamsmithlaw.com>
`Deron Dacus <ddacus@dacusfirm.com>; dpw.comcast.touchstream
`<dpw.comcast.touchstream@davispolk.com>; Ramani, Ashok <ashok.ramani@davispolk.com>;
`Farber, Alena <alena.farber@davispolk.com>
`
`Cc
`
`CAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender.
`
`Jordan,
`
`We disagree with Touchstream’s characterizations but agree that there is no need to belabor these
`points further. Comcast made a reasonable proposal in the hopes of avoiding the need to bother the
`Court, which Touchstream has rejected. Accordingly, the parties are at impasse.
`
`Regarding the briefing schedule, Comcast proposes that it respond to Touchstream’s motion within
`three business days of filing and that each party’s brief be limited to five pages, with no replies.
`
`Best Regards,
`James
`
`James Y. Park
`+1 650 752 2044 office
`+1 347 601 6043 mobile
`james.park@davispolk.com
`
`Davis Polk & Wardwell LLP
`Confidentiality Note: This email is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or
`otherwise protected from disclosure. Unauthorized use, dissemination, distribution or copying of this email or the information herein or taking any action in
`reliance on the contents of this email or the information herein, by anyone other than the intended recipient, or an employee or agent responsible for delivering
`the message to the intended recipient, is strictly prohibited. If you have received this email in error, please notify the sender immediately and destroy the
`original message, any attachments thereto and all copies. Please refer to the firm's privacy notice for important information on how we process personal data.
`Our website is at davispolk.com.
`From: Jordan Bergsten <jbergsten@bsfllp.com>
`Sent: Tuesday, February 4, 2025 1:02 PM
`To: Park, James Y. <james.park@davispolk.com>; Philip Eckert <peckert@bsfllp.com>; Touchstream
`<Touchstream@bsfllp.com>; Melissa Richards Smith <melissa@gillamsmithlaw.com>; Tom Gorham
`<Tom@gillamsmithlaw.com>; McKellar Karr <McKellar@gillamsmithlaw.com>
`Cc: Deron Dacus <ddacus@dacusfirm.com>; dpw.comcast.touchstream
`<dpw.comcast.touchstream@davispolk.com>; Ramani, Ashok <ashok.ramani@davispolk.com>;
`Farber, Alena <alena.farber@davispolk.com>
`Subject: RE: Touchstream v. Comcast | 2:23-cv-00062-JRG-RSP
` 
`James,
`
`1 of 6
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`2/5/25, 6:24 PM
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`

`

`Firefox
`
`https://outlook.office.com/mail/id/AAQkAGY5ZTVkNjViLWMzYTg...
`Case 2:23-cv-00059-JRG-RSP Document 326-4 Filed 02/13/25 Page 3 of 7 PageID
`#: 14183
` 
`Thank you for your response. We disagree with many of your characterizations but at this point I think
`the parties understand each other’s position on where we are and how we got here.
`In short, it is unacceptable that Comcast served an interrogatory response on December 11, 2024,
`stating that the “Xfinity TV Remote mobile application will…no longer be operable by December 31,
`2024,” and let that response stand until the January 28, 2025 Evan Cohen deposition, where Mr.
`Cohen testified that the app is in fact operable after December 31, 2024 because Comcast briefly
`made the app inoperable in December 2024 and then decided to “roll[] back” that change for current
`users continuing into 2025. (E. Cohen Tr. pp. 34-35). The “you should have caught us earlier”
`defense you now articulate is no defense at all.
`The document production you contemplate is one Comcast should have made in December, and
`should certainly make now, and each day that goes by without Comcast making that production with
`an upcoming trial setting unfairly prejudices Touchstream. I don’t hear you arguing (nor could you
`persuasively do so) that these documents on this issue on which Comcast re-opened discovery are
`irrelevant, or do not exist, or would be unduly burdensome to produce. Please let us know the date
`on which we can expect this production.
` 
`I’m also perplexed by Comcast attempting to exclude all emails from this production. If you have any
`authority supporting this decision, please provide it. Based on Mr. Cohen’s testimony and the
`documents Comcast produced we appear to be looking at a window of about two months on a single
`issue on which Comcast has re-opened discovery, and Comcast has made no showing of burden
`here.
` 
`As for a deposition, we appreciate your offer but I don’t see how you can reasonably expect us to
`agree to the deponent or a time limit before we see the documents. But even as it stands now, the 45
`documents we produced on this issue last week after Mr. Cohen (partially) corrected the record and
`Mr. Cohen’s unpreparedness to speak for the company last week on several aspects of the
`sunsetting decision easily justify more than 30 additional minutes on the record.
` 
`We appreciate Comcast’s willingness to work with us on adding additional exhibits from this
`supplementation for trial—we look forward to discussing further once we have the full production.
`Finally, as previously mentioned we intend to seek leave for our expert witnesses to serve
`supplemental reports commenting on how, if at all, this new evidence affects their opinions. Any
`global agreement for avoiding court intervention would need to involve agreement on this as well.
`Please respond tomorrow with any revisions to Comcast’s proposal or, alternatively, confirming that
`we are at an impasse. We are willing to meet and confer again on these issues tomorrow if you think
`it would be helpful.
`Regards,
`Jordan
`
`Jordan Bergsten
`Partner
`BOIES SCHILLER FLEXNER LLP
`1401 New York Avenue, N.W.
`Washington, DC 20005
`(t) +1 202 274 1105
`jbergsten@bsfllp.com
` 
` 
`From: Park, James Y. <james.park@davispolk.com>
`Sent: Monday, February 3, 2025 2:02 PM
`To: Jordan Bergsten <jbergsten@bsfllp.com>; Philip Eckert <peckert@bsfllp.com>; Touchstream
`<Touchstream@bsfllp.com>; Melissa Richards Smith <melissa@gillamsmithlaw.com>; Tom Gorham
`<Tom@gillamsmithlaw.com>; McKellar Karr <McKellar@gillamsmithlaw.com>
`
`2 of 6
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`2/5/25, 6:24 PM
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`Firefox
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`https://outlook.office.com/mail/id/AAQkAGY5ZTVkNjViLWMzYTg...
`Case 2:23-cv-00059-JRG-RSP Document 326-4 Filed 02/13/25 Page 4 of 7 PageID
`#: 14184
`Cc: Deron Dacus <ddacus@dacusfirm.com>; dpw.comcast.touchstream
`<dpw.comcast.touchstream@davispolk.com>; Ramani, Ashok <ashok.ramani@davispolk.com>;
`Farber, Alena <alena.farber@davispolk.com>
`Subject: RE: Touchstream v. Comcast | 2:23-cv-00062-JRG-RSP
` 
`
`CAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender.
`
`Jordan,
`
`Comcast has not made any inaccurate representations and its December 11 supplementation was
`complete. As Evan Cohen confirmed in his deposition, the Xfinity TV Remote app has been removed
`from the app store and can no longer be installed on customer devices. E. Cohen Dep. Tr. at
`50:9-51:3. Mr. Cohen also explained that Comcast will complete the process of shutting off the
`servers that support any versions of the TV Remote app already on devices by the first or second
`week of February 2025. Id. at 46:9-47:10. Comcast has no intention of “rolling back” the sunsetting
`of the app or making the accused functionalities available in any other form.
`
`As we explained in our meet and confers this week, Comcast will not refer to the sunsetting of the
`app at trial unless Touchstream raises the issue. However, pursuant to its discovery obligations,
`Comcast nonetheless promptly supplemented its relevant interrogatory response and produced the
`existing documents relating to this issue on December 11, 2024. It also offered to make Mr. Cohen
`available for deposition in early January 2025. Touchstream then chose to wait to depose Mr. Cohen
`until January 28 and did not raise any purported deficiencies with Comcast’s supplemental
`production in advance of the deposition—even though the small number of public webpages to which
`Touchstream now points were available well before that date.
`
`There is thus no basis for Touchstream’s belated complaints or its demands for further discovery. In
`any event, thank you for providing a better sense for the discovery Touchstream truly wants. We
`have discussed those requests with our client and Comcast would agree to the following, should
`doing so resolve the parties’ dispute:
`
`1. Subject to a reasonable search of nonprivileged documents in its possession, custody, or
`control, Comcast will produce:
`a. All transcripts and logs of customer interactions with Comcast Care representatives
`regarding the sunset of the Xfinity TV Remote app (subject to redactions for personally
`identifiable information); and
`b. Any additional internal non-email documentation regarding the sunset of the TV Remote
`app that may have become available since the time of Comcast’s previous supplemental
`production.
`2. Subject to evidentiary objections as to their admissibility, Comcast will not object to
`Touchstream’s addition of a reasonable number of trial exhibits regarding the sunset of the TV
`Remote app. Comcast also reserves the right to seek the addition of a reasonable number of
`rebuttal trial exhibits should Touchstream raise this issue at trial.
`3. Comcast will make Evan Cohen available for another 30-minute deposition regarding the
`sunset of the TV Remote app.
`
`Of course, should Touchstream continue with its broader unreasonable demands, Comcast will
`oppose any further discovery for all the reasons discussed above. Should that be necessary,
`Comcast will not agree to a 48-hour response deadline, which is patently unfair and prejudicial.
`
`Comcast trusts, however, that the above proposal will obviate the need for any motion practice, and
`we are available to meet and confer further if it would be helpful.
`
`3 of 6
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`

`Firefox
`
`https://outlook.office.com/mail/id/AAQkAGY5ZTVkNjViLWMzYTg...
`Case 2:23-cv-00059-JRG-RSP Document 326-4 Filed 02/13/25 Page 5 of 7 PageID
`#: 14185
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`Best Regards,
`James
`
`James Y. Park
`+1 650 752 2044 office
`+1 347 601 6043 mobile
`james.park@davispolk.com
`
`Davis Polk & Wardwell LLP
`Confidentiality Note: This email is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or
`otherwise protected from disclosure. Unauthorized use, dissemination, distribution or copying of this email or the information herein or taking any action in
`reliance on the contents of this email or the information herein, by anyone other than the intended recipient, or an employee or agent responsible for delivering
`the message to the intended recipient, is strictly prohibited. If you have received this email in error, please notify the sender immediately and destroy the
`original message, any attachments thereto and all copies. Please refer to the firm's privacy notice for important information on how we process personal data.
`Our website is at davispolk.com.
`From: Jordan Bergsten <jbergsten@bsfllp.com>
`Sent: Saturday, February 1, 2025 11:09 AM
`To: Park, James Y. <james.park@davispolk.com>; Philip Eckert <peckert@bsfllp.com>; Ramani,
`Ashok <ashok.ramani@davispolk.com>; Deron Dacus <ddacus@dacusfirm.com>;
`dpw.comcast.touchstream <dpw.comcast.touchstream@davispolk.com>; Farber, Alena
`<alena.farber@davispolk.com>; Hardisty, Micayla <micayla.hardisty@davispolk.com>; Touchstream
`<Touchstream@bsfllp.com>; Melissa Richards Smith <melissa@gillamsmithlaw.com>; Tom Gorham
`<Tom@gillamsmithlaw.com>; McKellar Karr <McKellar@gillamsmithlaw.com>
`Subject: RE: Touchstream v. Comcast | 2:23-cv-00062-JRG-RSP
` 
`Comcast Counsel,
`Earlier last week, Touchstream requested a number of items to remedy Comcast's selective and
`belated supplementations and, it turned out, inaccurate representations. Comcast wholesale
`refused. 
` 
`On our meet and confer Friday, Comcast requested that Touchstream tell Comcast "what it really
`wants." Touchstream responded that Comcast has Touchstream's list of requests, and if Comcast
`wishes to take a position other than wholesale refusal, it should make a proposal. 
` 
`Of course, Comcast knows which additional documents exist, and we do not, which is why it makes
`no sense to ask us to negotiate against ourselves and blindly narrow our requests on our own. But as
`of this week we at least know the following exist:
` 
`• external communications from Comcast Care to subscribers who complained about Comcast
`sunsetting the remote app, and 
`• internal communications from Comcast Care requesting that the remote app sunset be rolled
`back 
` 
`Presumably there are additional internal communications and documentation on both of these things.
` 
`Comcast has not even tried to make an excuse for not producing all of this when it provided, well
`after the close of discovery, a self-serving narrative about why it was sunsetting the app and a limited
`document production to try and support the same. At the very least, Touchstream demands that
`Comcast produce all of that now. As Comcast well knows, your discovery obligations go well beyond
`that to any relevant documents on this issue in which you have re-opened discovery. So we demand
`you fulfill those broader discovery obligations as well.
` 
`We look forward to your positions on Monday on what Comcast is willing to provide in response to
`our requests to try to avoid involvement of the Court.
` 
`We also look forward to Comcast's proposal for an expedited briefing schedule in the event that your
`proposal does not resolve this dispute. To memorialize our discussion Friday, Touchstream proposed
`
`4 of 6
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`Firefox
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`https://outlook.office.com/mail/id/AAQkAGY5ZTVkNjViLWMzYTg...
`Case 2:23-cv-00059-JRG-RSP Document 326-4 Filed 02/13/25 Page 6 of 7 PageID
`#: 14186
`the same schedule Judge Payne imposed at the December pretrial conference with respect to the
`deposition of Charter's employee Mr. Bell—i.e., Touchstream will file it's motion, and Comcast will
`respond within 2 days. 
`Regards,
`Jordan
`
`Jordan Bergsten
`Partner
`BOIES SCHILLER FLEXNER LLP
`1401 New York Avenue, N.W.
`Washington, DC 20005
`(t) +1 202 274 1105
`jbergsten@bsfllp.com
` 
` 
`From: Park, James Y. <james.park@davispolk.com>
`Sent: Thursday, January 30, 2025 12:01 PM
`To: Philip Eckert <peckert@bsfllp.com>; Ramani, Ashok <ashok.ramani@davispolk.com>; Deron
`Dacus <ddacus@dacusfirm.com>; dpw.comcast.touchstream
`<dpw.comcast.touchstream@davispolk.com>; Farber, Alena <alena.farber@davispolk.com>;
`Hardisty, Micayla <micayla.hardisty@davispolk.com>; Touchstream <Touchstream@bsfllp.com>;
`Melissa Richards Smith <melissa@gillamsmithlaw.com>; Tom Gorham <Tom@gillamsmithlaw.com>;
`McKellar Karr <McKellar@gillamsmithlaw.com>
`Subject: RE: Touchstream v. Comcast | 2:23-cv-00062-JRG-RSP
` 
`
`CAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender.
`
` 
`
`Counsel,
`
`We disagree with the characterizations in your letter and we can discuss the issues you raise during
`the meet and confer scheduled today at 1:00pm Central.
`
`Best,
`James
`
`James Y. Park
`+1 650 752 2044 office
`+1 347 601 6043 mobile
`james.park@davispolk.com
`
`Davis Polk & Wardwell LLP
`Confidentiality Note: This email is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or
`otherwise protected from disclosure. Unauthorized use, dissemination, distribution or copying of this email or the information herein or taking any action in
`reliance on the contents of this email or the information herein, by anyone other than the intended recipient, or an employee or agent responsible for delivering
`the message to the intended recipient, is strictly prohibited. If you have received this email in error, please notify the sender immediately and destroy the
`original message, any attachments thereto and all copies. Please refer to the firm's privacy notice for important information on how we process personal data.
`Our website is at davispolk.com.
`From: Philip Eckert <peckert@bsfllp.com>
`Sent: Wednesday, January 29, 2025 2:01 PM
`To: Ramani, Ashok <ashok.ramani@davispolk.com>; Deron Dacus <ddacus@dacusfirm.com>;
`dpw.comcast.touchstream <dpw.comcast.touchstream@davispolk.com>; Farber, Alena
`<alena.farber@davispolk.com>; Hardisty, Micayla <micayla.hardisty@davispolk.com>; Park, James
`
`5 of 6
`
`2/5/25, 6:24 PM
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`

`

`Firefox
`
`https://outlook.office.com/mail/id/AAQkAGY5ZTVkNjViLWMzYTg...
`Case 2:23-cv-00059-JRG-RSP Document 326-4 Filed 02/13/25 Page 7 of 7 PageID
`#: 14187
`Y. <james.park@davispolk.com>; Touchstream <Touchstream@bsfllp.com>; Melissa Richards Smith
`<melissa@gillamsmithlaw.com>; Tom Gorham <Tom@gillamsmithlaw.com>; McKellar Karr
`<McKellar@gillamsmithlaw.com>
`Subject: Touchstream v. Comcast | 2:23-cv-00062-JRG-RSP
` 
`Counsel,
` 
`Please see attached correspondence.
` 
`Best,
`
`Philip Eckert
`
`Associate
`
` 
`
`BOIES SCHILLER FLEXNER LLP
`
`1401 New York Avenue, N.W., Washington, DC 20005
`
`(t) +1 202 274 1141 | (m) +1 816 716 4153 | peckert@bsfllp.com
`
`  
`
` 
`
`The information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information
`that, among other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of
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`dissemination, distribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication
`in error, please immediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1
`08201831BSF]
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`The information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information
`that, among other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of
`this electronic message is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any
`dissemination, distribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication
`in error, please immediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1
`08201831BSF]
`
`The information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information
`that, among other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of
`this electronic message is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any
`dissemination, distribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication
`in error, please immediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1
`08201831BSF]
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`6 of 6
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