Case 2:23-cv-00059-JRG-RSP Document 358 Filed 02/26/25 Page 1 of 2 PageID #:
`14756
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`IN THE 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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`CIVIL ACTION NO. 2:23-CV-00059-JRG-RSP
`(Lead Case)
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`ORDER
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`Before the Court is Plaintiff Touchstream Technologies, Inc.’s Motion to Compel
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`Additional Discovery on Comcast’s Supplemental Disclosures. Dkt. No. 312. Touchstream moves
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`the Court to order Comcast to supplement document production and witness testimony regarding
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`Comcast’s decision to discontinue its accused Xfinity TV Remote App. Id. at 1. The motion also
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`seeks leave to present these new documents at trial and serve a short supplemental expert report
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`on the topic. Id.
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`According to Touchstream, Comcast supplemented its interrogatory response indicating
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`that it decided to discontinue the app. Id. at 2. Then Comcast produced engineering documents and
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`offered a witness for deposition. Id. Touchstream now argues that Comcast has reinstated the app
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`and thus seeks relief from the Court to supplement the record. Touchstream posits that Comcast
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`reinstated the app “apparently due to consumer outrage over that app’s discontinuation.” Id at 1.
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`Touchstream speaks of public outcry over the cancelation of the app but provides no evidence of
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`this. See id. at 3. Instead, it only cites an email sent from counsel for Touchstream to counsel for
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`Comcast. Id. at n.6 (citing Dkt. No. 312-3).
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`Case 2:23-cv-00059-JRG-RSP Document 358 Filed 02/26/25 Page 2 of 2 PageID #:
`14757
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`Comcast responds that it is not reinstating the app, but rather that it “temporarily paused[d]
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`the backend decommission” to allow an update of certain documentation. It further responds that
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`Touchstream had adequate opportunity to explore the facts concerning the discontinuance of the
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`application in the deposition of Mr. Cohen. Dkt. No. 323 at 4. Comcast argues that Mr. Cohen
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`explained the discontinuance process and why they needed to update the documentation prior to
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`severing all access. Comcast represents that it will not refer to the discontinuance unless
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`Touchstream is permitted to do so. Id. Comcast also argues that Touchstream was not diligent in
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`pursuing this discovery. Id. at 5. Touchstream waited more than a month to begin scheduling the
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`deposition of Mr. Cohen. Id. Finally, Comcast highlights the prejudice of granting Touchstream’s
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`requested relief, focusing particularly on how close the trial date is now. Id.
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`The Court finds that Touchstream is not entitled to the relief it seeks. First, this case is set
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`to begin trial on March 3, 2025. Touchstream only filed its Motion on February 6. Touchstream
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`had the opportunity to question Comcast’s witness about the interrogatory response. Touchstream
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`provides no evidence that contradicts the representation that the app was deprecated due to its
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`unpopularity and low usage. Instead, Touchstream relies on attorney argument and cites to an email
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`from its counsel. This is not enough to justify reopening discovery and expert reports. Further,
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`Touchstream does not justify nor explain the parameters of its proposed supplemental expert
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`report. Additionally, Touchstream does not adequately explain the prejudice it suffers and does not
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`sufficiently rebut the prejudice of granting its Motion so close to trial. However, the Court will
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`hold Comcast to its representation that “it will not refer to the discontinuance unless Touchstream
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`is permitted to raise the issue.” Dkt. No. 323 at 5.
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