`12892
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`TOUCHSTREAM TECHNOLOGIES,
`INC.,
`
`Plaintiff,
`
`v.
`
`CHARTER COMMUNICATIONS, INC.,
`et al.,
`
`Defendants.
`
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`CIVIL ACTION NO. 2:23-CV-00059-JRG-RSP
`(Lead Case)
`
`ORDER
`
`Before the Court is Plaintiff Touchstream Technologies, Inc.’s Motion for Leave to Take
`
`Deposition of David Bell. Dkt. No. 236. On December 19, 2024, the Court held a pretrial
`
`conference and overruled Plaintiff’s objection to Mr. Bell testifying at trial Dkt. No. 233 at 49:
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`23–24. The Court instructed Plaintiff to file a Motion with the Court explaining the grounds for
`
`taking such a late deposition of Mr. Bell. Id. at 53: 13–17. Defendants have responded in
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`opposition. Dkt. No. 237. After consideration, the Motion is DENIED because it is untimely, and
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`Plaintiff has failed to show good cause and due diligence.
`
`First, Plaintiff’s Motion is untimely and shows a lack of due diligence. Plaintiff filed this
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`Motion approximately two weeks before jury selection and trial are scheduled in this case.
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`Moreover, Plaintiff only raised this issue with the Court on December 19, 2024, approximately
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`three weeks before trial is scheduled. Plaintiff does not adequately explain why it waited so long
`
`to raise this issue. The Court finds it prejudicial to take a deposition so late in the process.
`
`
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`Second, Plaintiff has failed to show good cause for not having taken the deposition of
`
`Mr. Bell during discovery. Defendants timely disclosed Mr. Bell in September 2023. Dkt. No.
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`1
`
`
`
`Case 2:23-cv-00059-JRG-RSP Document 238 Filed 12/27/24 Page 2 of 2 PageID #:
`12893
`
`236 at 2. Nonetheless, Plaintiff argues that Charter failed to disclose Mr. Bell’s knowledge of
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`invalidity or Charter’s “independent development” theory. Id. at 4. Additionally, Touchstream
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`takes issue with Charter providing three witnesses on a 30(b)(6) topic without explanation. Id.
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`Charter points out that Touchstream agreed to and confirmed the deposition of Mr. Bell, but then
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`canceled it a week before it was scheduled. Dkt. No. 237 at 6. Charter claims that it
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`explained that the witnesses have relevant knowledge for different time periods. Id. at 7–8.
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`Regardless of any potential confusion or dispute regarding Mr. Bell’s precise testimony
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`Plaintiff had adequate opportunity to depose Mr. Bell to resolve this confusion. The Court
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`does not find good cause for this eve-of-trial deposition here where Plaintiff unilaterally chose to
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`forego deposing a disclosed witness and then waited months to raise its concerns with the
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`Court.
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`2
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`____________________________________
`ROY S. PAYNE
`UNITED STATES MAGISTRATE JUDGE
`
`SIGNED this 3rd day of January, 2012.
`
`SIGNED this 27th day of December, 2024.
`
`
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