Case 2:23-cv-00059-JRG-RSP Document 336 Filed 02/20/25 Page 1 of 10 PageID #:
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`THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`TOUCHSTREAM TECHNOLOGIES, INC.,
`Plaintiff,
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`v.
`CHARTER COMMUNICATIONS, INC., et al.,
`Defendants.
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`TOUCHSTREAM TECHNOLOGIES, INC.,
`Plaintiff,
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`v.
`COMCAST CABLE COMMUNICATIONS,
`LLC, d/b/a XFINITY, et al.,
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`Defendants.
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`Lead Case No. 2:23-cv-00059-JRG
`Member Case No. 2:23-cv-00062-JRG
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`COMCAST’S OPPOSITION TO TOUCHSTREAM’S MOTION TO COMPEL
`ADDITIONAL DISCOVERY ON COMCAST’S SUPPLEMENTAL DISCLOSURES
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`Case 2:23-cv-00059-JRG-RSP Document 336 Filed 02/20/25 Page 2 of 10 PageID #:
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`Comcast has discontinued the accused mobile application, and the accused functionalities
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`are no longer available through that application or in any other form. Pursuant to its discovery
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`obligations, Comcast promptly supplemented its relevant interrogatory response to alert
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`Touchstream to the change on December 11, 2024. Comcast also produced the then-existing
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`documents relating to this issue and offered a deposition in the first week of January 2025, which
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`Touchstream took on January 28.
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`Touchstream now seeks broad categories of additional discovery on the eve of trial
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`without any basis. Its assertions that Comcast’s interrogatory response was “false” and that the
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`accused application has been “re-instated” are simply not true. But regardless, Touchstream has
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`already had the opportunity to investigate its allegations. Comcast’s witness testified about the
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`reasons for, and process of, discontinuing the application, and Touchstream had access to the
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`documents on which its Motion now rests in advance of that deposition. Indeed, Touchstream’s
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`Motion nowhere explains why it did not conduct its “quick Internet search” before the deposition
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`and ask Comcast’s witness about the results.
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`The parties are likely going to trial on March 3. Comcast complied with its duty to
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`supplement and Touchstream had a full opportunity to investigate. Now, discovery must end.
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`Comcast is happy to proceed to trial either with both parties agreeing not to mention the
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`discontinuance or with the record regarding the discontinuance that has been developed. But
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`continued fact and expert discovery would be both impractical and prejudicial. Touchstream’s
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`Motion should therefore be denied.
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`I.
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`BACKGROUND
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`1
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`1 Thus, in light of its low usage,
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`the product team decided to discontinue the application. See id. at 9:25-10:12. Comcast
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`removed the application from Google and Apple app stores on or around December 10, 2024,
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`and it has been unavailable for installation on customer devices since that time. See Mot. Ex. 2
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`at 30:7-18, 31:17-32:19, 33:17-34:13; see also Ex. 1 at 49:10-24. Comcast also began the
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`process of disabling the backend services that supported versions of the TV Remote App already
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`on customer devices. See Mot. Ex. 2 at 34:20-35:9. However, during that process, Comcast’s
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`customer-care team realized that it needed to update the information it uses to help support
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`customers. See id. at 34:20-35:9, 36:1-10; see also Ex. 1 at 47:11-49:6. The care team asked the
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`product team for more time to update its documentation, which led Comcast to temporarily pause
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`the backend decommission. See Ex. 1 at 46:9-47:10. The backend was scheduled to be
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`decommissioned on February 11, 2025. As of that date, no one is able to use any version of the
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`TV Remote App. See id. Comcast does not intend to reintroduce the application or make the
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`accused functionalities available in any other form.
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`On December 11, 2024, Comcast provided a supplemental interrogatory response
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`regarding the application’s discontinuation, Mot. Ex. 1 at 8, produced the relevant documents
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`that existed at the time, and offered Evan Cohen, who leads the engineering team responsible for
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`the TV Remote App (and is thus a may-call trial witness), for a deposition on January 7, 2025.
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`Ex. 2 at 8. Touchstream did nothing for several weeks. Then, on January 7 (the date of the
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`offered deposition), Touchstream said it would “follow up regarding the date of Mr. Cohen’s
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`deposition after the Charter trial.” Ex. 2 at 7-8. After Comcast explained that it was unclear
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`1 “Ex. __” cites refer to the exhibits attached to this Response. “Mot. Ex. __” cites refer
`to the exhibits attached to Touchstream’s Motion, Dkt. No. 312.
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`2
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`when the Charter trial would occur, the parties set Mr. Cohen’s deposition for January 28. Id. at
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`1-7. At no point before or during the deposition did Touchstream raise any purported
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`deficiencies with Comcast’s supplemental disclosures. During his deposition, Mr. Cohen
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`testified about the discontinuation of the TV Remote App, as discussed above. See supra 1-2.
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`Only after Mr. Cohen’s deposition did Touchstream demand additional fact and expert
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`discovery in light of a small number of publicly available customer communications that it
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`uncovered through a “quick internet search.” Mot. at 3; Mot. Ex. 3 at 1-2. Comcast explained
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`that it would be willing to proceed to trial without either party mentioning the discontinuance of
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`the TV Remote App, and, to avoid burdening the Court, offered a compromise in which it would
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`produce any additional customer inquiries and non-email documents created since its initial
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`supplement and make Mr. Cohen available for yet another short deposition.2 Mot. Ex. 4 at 3.
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`Touchstream refused any compromise, so its motion followed. Id. at 2.
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`II.
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`ARGUMENT
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`Good cause for supplemental discovery requires consideration of whether the supplement
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`is important; whether the movant has explained its failure to timely move; and whether there is
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`potential prejudice in allowing the supplement. See Reliance Ins. Co. v. Louisiana Land & Expl.
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`Co., 110 F.3d 253, 257 (5th Cir. 1997) (affirming denial of supplemental expert report where
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`movant “offered no justification for its delay” and it would “disrupt the trial date”).3
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`Touchstream’s Motion fails on each factor.
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`2 Any email correspondence falls outside the Order Regarding E-Discovery governing
`this case. Touchstream Techs., Inc. v. Altice USA, Inc., No. 2:23-cv-00060-JRG, Dkt. No. 119
`(Oct. 20, 2023), ¶ 7 (providing parameters for email production requests).
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`3 Touchstream’s cited cases concern motions to compel before the close of fact discovery
`and are therefore irrelevant. See Weatherford Tech. Holdings, LLC v. Tesco Corp., No. 2:17-cv-
`00456-JRG, 2018 WL 4620634, at *1-2 (E.D. Tex. Apr. 27, 2018); Fractus, S.A. v. ADT LLC,
`No. 2:22-cv-00412-JRG, 2024 WL 1913126, at *1, 4 (E.D. Tex. May 1, 2024).
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`3
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`First, Touchstream has already explored the facts concerning the discontinuance of the
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`application and there is no need for yet another round of fact discovery, let alone reopening
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`expert discovery. While Touchstream claims that Comcast has “re-instated” the TV Remote App
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`due to customer complaints, that is not true. See supra Section I. But regardless, Touchstream
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`already had the opportunity to explore its theory. It had access to the purported customer
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`complaints on which its story rests before Mr. Cohen’s deposition and could have asked him
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`about them. In any event, during the deposition, Mr. Cohen fully explained the process of
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`discontinuance, including the removal from the app stores in December and the need to update
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`the customer-care documentation before severing access to all versions on user devices. Id.4
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`Further fact discovery on these points will be duplicative and is not important to the trial,
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`especially in light of Comcast’s representation that it will not refer to the discontinuance unless
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`Touchstream is permitted to raise the issue.
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`There is certainly no need to reopen expert discovery at this late juncture. The way the
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`accused application operates has not changed—it simply no longer exists—and no other Comcast
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`application has changed in any relevant way, rendering further infringement opinions
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`unnecessary and improper. For his part, Touchstream’s damages expert seeks a running royalty
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`based on an unrelated software license agreement that simply ends upon the application’s
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`shutdown. His current calculations run through 2023, and nothing more than an update of his
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`numbers through the shutdown would be appropriate. Because nothing has changed beyond the
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`4 Touchstream also asked Mr. Cohen about Comcast’s purportedly “inaccurate”
`interrogatory response. Ex. 1 at 49:10-52:14. He denied it was inaccurate and explained the
`underlying facts. Id. Indeed, if Touchstream’s story that Comcast had “reinstated” the TV
`Remote App because of its purported value were true, then Comcast would not have completed
`the decommissioning process, which it has now done.
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`4
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`discontinuance of the accused application, re-opening expert discovery serves no purpose other
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`than to enable Touchstream’s experts to change their opinions on settled matters.
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`Second, Touchstream has failed to pursue discovery diligently. It waited almost an entire
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`month after receiving Comcast’s December 11 supplementation and offer of a deposition to
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`begin scheduling it—even though trial was then set for January 13. Touchstream could have
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`conducted its “quick internet search” for customer communications before conducting that
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`deposition but did not do so, raising them for the first time two days after the deposition had
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`concluded. Mot. at 3; Mot. Ex. 3 at 1. Touchstream also could have requested that Comcast
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`produce any internal documentation created after Comcast’s first supplementation if it believed
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`them necessary to that deposition. Touchstream had no intention of using any of the information
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`that it now claims is “highly important” to its case, however, and it should not be allowed a “do
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`over” this close to trial. It certainly should not be permitted to change its experts’ opinions two
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`months after learning of the application’s discontinuance.
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`Finally, the potential prejudice in granting Touchstream’s request is high and cannot be
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`cured. The prejudice in allowing Touchstream to change its experts’ infringement or damages
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`theories after all pretrial motions have been filed is clear. Moreover, trial is likely to take place
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`on March 3, 2025, and it has already been continued several times. Touchstream’s demands
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`make it almost impossible for the parties to be ready for trial on that date. New documents and
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`depositions will likely require a fourth pretrial conference to resolve admissibility issues. And
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`even limited supplementation of Touchstream’s expert reports will require responsive reports
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`from Comcast’s experts and potentially depositions. Touchstream’s Motion does not explain
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`how this could all be done before trial. Mot. at 5.
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`For all these reasons, Touchstream’s Motion should be denied.
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`5
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`Case 2:23-cv-00059-JRG-RSP Document 336 Filed 02/20/25 Page 7 of 10 PageID #:
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`Dated: February 13, 2025
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`Respectfully submitted,
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`/s/ David J. Lisson
`Deron Dacus (State Bar No. 00790553)
`THE DACUS FIRM, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, TX 75701
`Tel:
`(903) 705-1117
`ddacus@dacusfirm.com
`
`DAVIS POLK & WARDWELL LLP
`Ashok Ramani (CA Bar No. 200020)
`David J. Lisson (CA Bar No. 250994)
`James Y. Park (CA Bar No. 343659)
`Keon Zemoudeh (CA Bar No. 343023)
`900 Middlefield Road, Suite 200
`Redwood City, CA 94063
`ashok.ramani@davispolk.com
`david.lisson@davispolk.com
`james.park@davispolk.com
`keon.zemoudeh@davispolk.com
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`Alena Farber (NY Bar No. 5896170)
`450 Lexington Avenue
`New York, NY 10017
`alena.farber@davispolk.com
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`WILMER CUTLER PICKERING HALE AND
`DORR LLP
`Thomas G. Saunders (DC Bar No. 503012)
`2100 Pennsylvania Avenue, NW
`Washington, DC 20037
`thomas.saunders@wilmerhale.com
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`Lauren Matlock-Colangelo
`(NY Bar No. 5771340)
`7 World Trade Center
`250 Greenwich Street
`New York, NY 10007
`lauren.matlock-colangelo@wilmerhale.com
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`Counsel for Defendants Comcast
`Corporation, Comcast Cable
`Communications, LLC, Comcast Cable
`Communications Management, LLC, and
`Comcast of Houston, LLC
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`CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL
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`I hereby certify that this document is authorized to be filed under seal pursuant to the
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`Protective Order entered in this case.
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`/s/ David J. Lisson
`David J. Lisson
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`CERTIFICATEOF SERVICE
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`I hereby certify that on February 13, 2025, true and correct copies of the foregoing
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`COMCAST’S OPPOSITION TO TOUCHSTREAM’S MOTION TO COMPEL ADDITIONAL
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`DISCOVERY ON COMCAST’S SUPPLEMENTAL DISCLOSURES were served upon the
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`following as indicated:
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`☒ Via Email
`☐ Via Overnight Courier
`☐ Via Hand Delivery
`☐ Via First Class Mail
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`☒ Via Email
`☐ Via Overnight Courier
`☐ Via Hand Delivery
`☐ Via First Class Mail
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`BOIES SCHILLER FLEXNER LLP
`Ryan D. Dykal (pro hac vice)
`Jordan T. Bergsten (pro hac vice)
`Mark Schafer (pro hac vice)
`Philip A. Eckert (pro hac vice)
`Anita Liu (TX State Bar No. 24134054)
`1401 New York Ave., NW
`Washington, DC 20005
`rdykal@bsfllp.com
`jbergsten@bsfllp.com
`mschafer@bsfllp.com
`peckert@bsfllp.com
`aliu@bsfllp.com
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`John M. Lyons (pro hac vice)
`Sabina Mariella (pro hac vice)
`Sophie Roytblat (pro hac vice)
`55 Hudson Yards, 20th Floor
`New York, NY 10001
`jlyons@bsfllp.com
`smariella@bsfllp.com
`sroytblat@bsfllp.com
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`Counsel for Plaintiff Touchstream Technologies, Inc.
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`GILLIAM & SMITH LLP
`Melissa Smith (TX State Bar No. 24001351)
`303 S. Washington Ave.
`Marshall, TX 75670
`(t) 903-934-8450
`melissa@gillamsmithlaw.com
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`Counsel for Plaintiff Touchstream Technologies, Inc.
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`ARNOLD & PORTER KAYE SCHOLER LLP
`Dina M. Hayes
`70 West Madison Street, Suite 4200
`Chicago, IL 60602
`dina.hayes@arnoldporter.com
`Daniel L. Reisner
`David Benyacar
`Elizabeth A. Long
`Melissa Brown
`Robert Stout
`250 West 55th Street
`New York, NY 10019
`daniel.reisner@arnoldporter.com
`david.benyacar@arnoldporter.com
`elizabeth.long@arnoldporter.com
`melissa.brown@arnoldporter.com
`robert.stout@arnoldporter.com
`Counsel for Charter Defendants
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`☒ Via Email
`☐ Via Overnight Courier
`☐ Via Hand Delivery
`☐ Via First Class Mail
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`
`/s/ Angela Quachdav
`Angela Quach
`Senior Litigation Paralegal
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`9
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