Case 2:23-cv-00059-JRG-RSP Document 338 Filed 02/21/25 Page 1 of 8 PageID #:
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`TOUCHSTREAM TECHNOLOGIES, INC.,
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`Plaintiff,
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`v.
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`CHARTER COMMUNICATIONS, INC., et al.,
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`Defendants.
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`TOUCHSTREAM TECHNOLOGIES, INC.,
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`Plaintiff,
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`v.
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`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
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`Member Case No. 2:23-cv-00062-JRG
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`CHARTER’S EXPEDITED MOTION TO CONTINUE
`THE MARCH 3, 2025, TRIAL DATE
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`Case 2:23-cv-00059-JRG-RSP Document 338 Filed 02/21/25 Page 2 of 8 PageID #:
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`Charter respectfully requests that its March 3, 2025, trial date be continued to a
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`subsequent trial setting, potentially as early as April 7, 2025 (i.e., a 31-day continuance).1
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`As Charter explained in its February 7, 2025, Notice of Trial Conflicts (Dkt. 313),
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`Charter’s damages expert, Mr. Bakewell, will be testifying as the damages expert for the
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`defendant Anker Innovations Ltd at a week-long trial in the District Court for the District of
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`Delaware on March 3-7. See Fundamental Innovation Systems International LLC v. Anker
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`Innovations Ltd., No. 1:21-cv-00339-RGA, (D. Del.); Dkt. 313-1, ¶4. Charter did not file a
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`motion to continue before today because Charter became aware that, on February 11, 2025, the
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`Fundamental Innovation Court granted a Daubert motion against the plaintiff’s damages expert2
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`and that there was some question about whether that case would proceed to trial. Earlier today,
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`however, on February 21, 2025, there was a pretrial conference in the Fundamental Innovation
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`matter, and Charter understands that District Judge Richard Andrews confirmed that the
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`Fundamental Innovation matter will be proceeding to trial on March 3 as scheduled.
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`Because Mr. Bakewell is representing the defendants in both the Fundamental
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`Innovation and Touchstream weeklong trials, he will be called the latter half of the week in both
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`trials, and may well be required to testify on the same day. Simply put, Mr. Bakewell cannot be
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`in two places at once. Accordingly, absent a continuance of the March 3, 2025, trial date,
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`Charter will be forced to try this case without a damages expert, which would be highly
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`prejudicial, particularly given that Touchstream is seeking nearly $1.2 billion in damages. There
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`is good cause to continue the trial because Charter will be fundamentally prejudiced by the
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`March 3, 2025, trial date, while the Court and Touchstream will not be prejudiced if the Charter
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`trial is continued to a later date.
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`1 Touchstream does not oppose Charter’s request to expedite briefing on this motion, and will
`file its opposition by 5 p.m. CT on Monday, February 24, 2025.
`2 Fundamental Innovation, No. 1:21-cv-00339-RGA (D. Del), Dkts. 261 and 262.
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`I.
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`BACKGROUND
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`This case was previously set for trial on January 13, January 27, and February 7, 2025.
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`Charter, Mr. Bakewell, and all other Charter witnesses were free of conflicts and ready to go for
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`each of these dates. On February 5, 2025, Charter was informed by the Court that it would not
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`proceed to trial on February 7, 2025. On February 7, 2025, Charter filed a Notice of Trial
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`Conflicts (Dkt. 313), attaching a declaration from Mr. Bakewell regarding his conflict with the
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`March 3, 2025, trial setting (Dkt. 313-1). On February 14, 2025, Charter was informed that its
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`case was set for trial on March 3, 2025, and that it was first in the order of trials. On February
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`21, 2025, Charter learned that the Fundamental Innovation matter will be proceeding to trial,
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`despite the aforementioned Daubert issue in that matter.
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`II.
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`THERE IS GOOD CAUSE TO CONTINUE THE TRIAL
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`Pursuant to Rule 16, a “schedule may be modified only for good cause and with the
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`judge’s consent.” Fed. R. Civ. P. 16(b)(4). In determining whether good cause exists, courts
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`consider a four-part test: (1) the explanation for the failure to [meet the schedule]; (2) the
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`importance of the [modification of the schedule]; (3) potential prejudice in allowing the
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`[modification]; and (4) the availability of a continuance to cure such prejudice. Reliance Ins. Co.
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`v. The Louisiana Land & Exploration Co., 110 F.3d 253, 257 (5th Cir. 1997). All four factors
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`support a continuance.
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`A.
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`Charter’s Unavailability For The March 3, 2025, Trial Date Is Not
`Charter’s Fault
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`Mr. Bakewell’s March 3-7, 2025 trial in the Fundamental Innovation case was scheduled
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`in October of 2024. Fundamental Innovation, No. 1:21-cv-00339-RGA (D. Del.), Dkt. 231.
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`Charter, of course, has no control over the docket or scheduling in the Fundamental Innovation
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`matter. The fact that one of Charter’s witnesses, Mr. Bakewell, has one week of unavailability
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`due to a conflicting trial is reasonable and understandable, particularly where Mr. Bakewell and
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`the rest of Charter’s witnesses have been ready for trial and free of conflicts on the previously set
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`dates of January 13, January 27, and February 7, 2025.
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`B.
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`Charter Will Be Highly Prejudiced By The March 3, 2025, Trial Date
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`Charter will be fundamentally prejudiced if it must defend itself at trial without a
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`damages expert.
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`As described above, Charter’s damages expert Mr. Bakewell is not available the week of
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`March 3-7, 2025, because he is testifying as an expert in another case in Delaware that week.
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`Damages experts are typically called as the final witness for each side because their testimony is
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`predicated on all of the prior evidence and testimony that comes before them. Indeed, this is
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`why damages experts typically sit through the entire trial, and explain to the jury that they have
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`done so. Because Mr. Bakewell is testifying as an expert for the defendant in the Fundamental
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`Innovation matter, and for the defendant Charter in this matter, he will be called to testify in the
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`latter half of both of these weeklong trials, perhaps on the same day. Of course, Mr. Bakewell
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`cannot be in Marshall and Wilmington on the same day.
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`Even assuming that schedules could be coordinated so that Mr. Bakewell could testify in
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`one trial and then travel to testify in the other (a dubious proposition given that he is testifying
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`for the defense in both cases), Mr. Bakewell cannot sit through the presentation of evidence in
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`both trials at once, and reading the transcript for the trial that he is not sitting through is not an
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`adequate substitute for actually being in the Courtroom and being able to explain to the jury that
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`he was there to watch every witness’s testimony. Nor, as a practical matter, would he have the
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`time to read all the daily transcripts in one trial while he is participating in a different trial.
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`For similar reasons, a trial preservation deposition of Mr. Bakewell in this case would not
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`cure the prejudice to Charter, because it would force Mr. Bakewell to testify without having had
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`the opportunity to hear the testimony of Touchstream’s fact and expert witnesses, and would
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`further prejudice Charter because it’s expert would testify by video, while Touchstream’s expert
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`would testify live.
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`The prejudice to Charter is even more extreme given that Touchstream is seeking nearly
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`$1.2 billion in damages. Specifically, Touchstream’s damages expert Dr. Mangum presents two
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`damages models, one for nearly $1.2 billion and another for more than $400 million. As set
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`forth in his expert reports, Mr. Bakewell responds to Dr. Mangum’s analyses and concludes that
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`the appropriate royalty when usage of the asserted method claims is accounted for is
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`approximately $5 million.
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`Accordingly, Charter will be prejudiced if it is forced to try this case on March 3-7, 2025
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`without its damages expert.
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`C.
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`The Court And Touchstream Will Not Be Prejudiced If The Charter
`Trial Is Continued To A Later Date
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`If the Charter trial is continued to a later date, the Court and Touchstream can still
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`proceed with the Touchstream Technologies v. Comcast Cable Communications et al. (Case No.
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`2:23-cv-00062) matter on March 3, 2025, which is currently set as second in the order of trials
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`for March 3, 2025. Neither Touchstream nor Comcast have identified any conflicts with this
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`trial date. Thus, the Court, Touchstream, and the jury can proceed to trial on March 3, 2025,
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`regardless of Charter’s requested trial continuance. Touchstream would not experience any
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`delay in getting to trial whatsoever—it would simply proceed with the Comcast case.
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`Charter and all of its witnesses, including Mr. Bakewell, are available to try this case the
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`week of April 7, 2025 (or the previous Friday, April 4), which would amount to a 31-day
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`continuance (or slightly shorter).
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`III. CONCLUSION
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`In light of Mr. Bakewell’s trial conflict on March 3, 2025, Charter respectfully requests
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`that the Touchstream v. Charter matter be continued from this trial setting and be calendared for
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`April 7, 2025 (or the previous Friday, April 4), in light of this conflict and the other conflicts that
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`Charter previously described (Dkt. 313).
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`Dated: February 21, 2025
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`Respectfully submitted,
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`/s/ Daniel L. 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
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`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
`stanton.jones@arnoldporter.com
`natalie.steiert@arnoldporter.com
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`Counsel 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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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing document and all attachments thereto are being
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`filed electronically in compliance with Local Rule CV-5(a). As such, this document is being served
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`February 21, 2025, on all counsel of record, each of whom is deemed to have consented to
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`electronic service. L.R. CV-5(a)(3)(A).
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`/s/ Daniel L. Reisner
`Daniel L. Reisner
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