Case 2:23-cv-00059-JRG Document 45 Filed 05/01/24 Page 1 of 13 PageID #: 1269
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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.
`
`Plaintiff,
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`
`
`v.
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`CHARTER CABLE COMMUNICATIONS, et al.
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`Defendant.
`
` Lead Case. No. 2:23-cv-00059-JRG
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`JURY TRIAL DEMANDED
`
`
`TOUCHSTREAM TECHNOLOGIES, INC.
`
`
`Plaintiff,
`
`v.
`COMCAST CABLE COMMUNICATIONS,
`LLC, d/b/a XFINITY, et al.
`
`Defendant.
`
`
`
`
`Member Case No. 2:23-cv-00062-
`JRG
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`PLAINTIFF TOUCHSTREAM TECHNOLOGIES, INC.’S RESPONSE TO
`DEFENDANT COMCAST CABLE COMMUNICATIONS, LLC’S
`MOTION TO COMPEL INFORMATION REGARDING FINANCIAL INTERESTS
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`

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`Case 2:23-cv-00059-JRG Document 45 Filed 05/01/24 Page 2 of 13 PageID #: 1270
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`TABLE OF CONTENTS
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`Page
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`TABLE OF AUTHORITIES ........................................................................................................................ ii
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`STATEMENT OF FACTS ........................................................................................................................... 1
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`ARGUMENT ................................................................................................................................................ 2
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`I. Comcast incorrectly asserts that Touchstream did not assert privilege claims. ..................................... 2
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`II. Comcast’s arguments amount to nothing more than speculation. .......................................................... 2
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`III. Comcast’s requests are not proportional to the needs of this case. ........................................................ 6
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`CONCLUSION ............................................................................................................................................. 7
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`i
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`Case 2:23-cv-00059-JRG Document 45 Filed 05/01/24 Page 3 of 13 PageID #: 1271
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Ashghari-Kamrani v. United Servs. Auto. Ass'n,
`2016 WL 11642670 (E.D. Va. May 31, 2016) ................................................................................... 2, 4
`
`AVM Techs., LLC v. Intel Corp.,
`2017 WL 1787562 (D. Del. May 1, 2017) ............................................................................................. 5
`
`Colibri Heart Valve LLC v. Medtronic CoreValve LLC,
`2021 WL 10425630 (C.D. Cal. Mar. 26, 2021).................................................................................. 3, 5
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`Fleet Connect Solutions LLC v. Waste Connections US, Inc.,
`2022 WL 2805132 (E.D. Tex. June 29, 2022) ....................................................................................... 2
`
`GoTV Streaming, LLC v. Netflix, Inc.,
`2023 WL 4237609 (C.D. Cal. May 24, 2023) ........................................................................................ 5
`
`Hammler v. Clark,
`2020 WL 8483914 (E.D. Cal. Dec. 11, 2020) ........................................................................................ 5
`
`Hardin v. Samsung Elecs. Co.,
`2022 WL 14976096 (E.D. Tex. Oct. 25, 2022) ...................................................................................... 2
`
`Leadership Studies, Inc. v. Blanchard Training & Dev., Inc.,
`2017 WL 2819847 (S.D. Cal. June 28, 2017) ........................................................................................ 4
`
`Micro Motion, Inc. v. Kane Steel Co.,
`894 F.2d 1318 (Fed. Cir. 1990) .......................................................................................................... 4, 6
`
`Rivera v. Nibco, Inc.,
`364 F.3d 1057 (9th Cir. 2004) ................................................................................................................ 7
`
`Space Data Corp. v. Google LLC,
`2018 WL 3054797 (N.D. Cal. 2018) ...................................................................................................... 7
`
`Unilin Beheer B.V. v. NSL Trading Corp.,
`2015 WL 12659919 (C.D. Cal. Mar. 27, 2015)...................................................................................... 7
`
`United Access Techs., LLC v. AT&T Corp.,
`2020 WL 3128269 (D. Del. Jun. 12, 2020) ............................................................................................ 4
`
`United States v. Homeward Residential,
`2016 WL 1031154 (E.D. Tex. Mar. 15, 2016) ....................................................................................... 3
`
`VHT, Inc. v. Zillow Grp., Inc.,
`2016 WL 7077235 (W.D. Wash. Sep. 8, 2016) ...................................................................................... 3
`
`ii
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`Case 2:23-cv-00059-JRG Document 45 Filed 05/01/24 Page 4 of 13 PageID #: 1272
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`
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`Statutes
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`Truth in Lending Act ..................................................................................................................................... 3
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`Other Authorities
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`5th Cir. Rule 28.2.1 ....................................................................................................................................... 3
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`Fed. R. Civ. P. 26 ...................................................................................................................................... 1, 2
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`Fed. R. Civ. P. 26(b)(1) ............................................................................................................................. 1, 7
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`iii
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`Case 2:23-cv-00059-JRG Document 45 Filed 05/01/24 Page 5 of 13 PageID #: 1273
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`In addition to seeking financial information tailored to the claims and defenses in this
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`patent case—such as valuations of the patents or the financial interests of witnesses—Comcast
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`seeks all financial information relating to Touchstream—including the identity of anyone who
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`ever invested in Touchstream, how much they invested, Touchstream’s vendors (and their
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`financial interests), Touchstream’s banks, bank loans, law firms, etc. Comcast attempts to justify
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`this overreach by speculating that perhaps conducting a full financial autopsy could point it to
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`information that is actually relevant. This is exactly backwards. Rule 26(b)(1) defines the scope of
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`discovery as information that is “relevant to any party’s claim or defense and proportional to the
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`needs of the case.” A shotgun request to identify everyone with any financial interest—including
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`random, passive investors in Touchstream—is neither within the bounds of discovery provided by
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`Rule 26 nor proportional to the needs of the case. Touchstream has compromised by providing the
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`relevant, proportional financial information within the scope of Comcast’s requests. Comcast’s
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`motion to obtain irrelevant, non-proportional financial information should be denied.
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`STATEMENT OF FACTS
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`Comcast first broadly sought the identity of “any party with a financial interest in
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`Touchstream or Touchstream’s activities.” Mot. at 1. After objecting on numerous grounds,
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`Touchstream conferred with Comcast to narrow the information sought and produced
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`. Comcast then served Interrogatory No. 5, seeking even
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`broader and more detailed financial
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`information. Touchstream objected on privilege,
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`proportionality, burden, and relevance grounds. See Ex. 1 at 3-4. Touchstream’s counsel repeated
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`these objections on meet-and-confers, and in an effort to compromise, agreed to provide
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`. Id. Comcast subsequently filed
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`this motion.
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`Case 2:23-cv-00059-JRG Document 45 Filed 05/01/24 Page 6 of 13 PageID #: 1274
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`
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`ARGUMENT
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`I.
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`Comcast incorrectly asserts that Touchstream did not assert privilege claims.
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`As an initial matter, Comcast is incorrect that Touchstream has not “asserted any privilege”
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`over the requested information or documents. Mot. at 7. The first two sentences of Touchstream’s
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`Response to Comcast’s Interrogatory No. 5 state: “Touchstream objects to this Interrogatory
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`because it seeks information protected by the attorney-client privilege, work-product immunity, or
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`any other applicable protection from discovery. Touchstream will not provide information that is
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`protected by the attorney-client privilege, work-product immunity, or any other applicable
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`protection.” Ex. 1 at 3. Nor has Touchstream ever waived any privileges. Id. at 4. Given this clear
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`and timely invocation of privilege, Comcast’s assertion to the contrary is perplexing.
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`II.
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`Comcast’s arguments amount to nothing more than speculation.
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`To prevail on its motion, Comcast must offer some “actual basis for the relevancy of the
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`information sought other than mere speculation or fishing.” Ashghari-Kamrani v. United Servs.
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`Auto. Ass'n, 2016 WL 11642670, at *4 (E.D. Va. May 31, 2016) (collecting cases). It has failed to
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`do so. Indeed, when a plaintiff has identified parties with an ownership interest in the asserted
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`patents, the identity of “other theoretical financially interested parties” is not relevant. Id. That is
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`the case here:
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`“other theoretical financially interested” persons are not relevant.
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`This Court has twice rejected attempts to obtain materials that Comcast now seeks. In Fleet
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`Connect Solutions LLC v. Waste Connections US, Inc., this Court denied defendant’s motion to
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`compel litigation funding agreements because the defendant “failed to show that litigation funding
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`agreements, if any, are relevant to the claims or defenses.” 2022 WL 2805132, at *3 (E.D. Tex.
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`June 29, 2022); see also Hardin v. Samsung Elecs. Co., 2022 WL 14976096 (E.D. Tex. Oct. 25,
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`2022). The same is true here. In fact, here, Comcast’s requests are much broader and admittedly
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`2
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`Case 2:23-cv-00059-JRG Document 45 Filed 05/01/24 Page 7 of 13 PageID #: 1275
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`speculative—seeking all persons with a financial interest because “investors in the company may
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`have information about its success or failure” or because an investor may have “analyzed, for
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`example, the value of the company, the Asserted Patents, and/or this litigation.” Mot. at 4. This is
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`pure speculation. If the shoe were on the other foot, Touchstream is confident it would not be
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`permitted discovery into every Comcast investor on the bare hypothesis that some of them might
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`have evaluated the risk of this lawsuit to Comcast.
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`Comcast’s lone citation to an order in this District, United States v. Homeward Residential,
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`Inc., is inapt. That was a Truth in Lending Act case that necessarily involved claims regarding
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`investment disclosures. 2016 WL 1031154, at *1 (E.D. Tex. Mar. 15, 2016). This, on the other
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`hand, is a case about patent infringement. Further, in Homeward, the Court did not compel the
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`identity of “any person with a Financial Interest” (Mot. at 3), but instead required limited disclosers
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`because “the names of the litigation funders are relevant to the claim.” Homeward Residential,
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`2016 WL 1031154, at *5 (emphasis added). Comcast has made no such relevance showing here.1
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`Other courts have reached the same conclusion. See, e.g., Colibri Heart Valve LLC v.
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`Medtronic CoreValve LLC, 2021 WL 10425630, at *4 (C.D. Cal. Mar. 26, 2021) (denying motion
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`to compel production of litigation funding agreements as irrelevant); VHT, Inc. v. Zillow Grp.,
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`Inc., 2016 WL 7077235, at *1 (W.D. Wash. Sep. 8, 2016) (denying motion to compel interrogatory
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`response about third parties with financial interests in the litigation, because the requested
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`information was “negligibly relevant, minimally important in resolving the issues, and unduly
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`1 Comcast’s citations to other Court’s disclosure requirements are equally unpersuasive.
`See Mot. at n.2. What other Courts require for disclosure has no bearing on what this Court
`requires, and these disclosure rules are primarily for purposes of identifying potential “recusal
`issue[s].” See 5th Cir. Rule 28.2.1.
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`3
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`Case 2:23-cv-00059-JRG Document 45 Filed 05/01/24 Page 8 of 13 PageID #: 1276
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`burdensome”); United Access Techs., LLC v. AT&T Corp., 2020 WL 3128269, at *2 (D. Del. Jun.
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`12, 2020) (denying motion to compel regarding litigation funding materials on relevance grounds).
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`Comcast has failed to meet its burden in establishing the relevance of the materials it seeks.
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`That should end this inquiry. See Ashghari-Kamrani, 2016 WL 11642670, at *4 (denying motion
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`to compel Plaintiff’s response to interrogatory seeking information on all individuals who have a
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`financial interest in the asserted patents). Comcast’s motion rests on “may have[s]”, and “likely
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`to[s].” Mot. at 1, 4, 5, 6.2 Such “suspicion or speculation” is not enough to establish relevance. See
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`Micro Motion, Inc. v. Kane Steel Co., 894 F.2d 1318, 1326 (Fed. Cir. 1990). Comcast’s conclusory
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`assertions that it is entitled to an order compelling discovery are insufficient. See Leadership
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`Studies, Inc. v. Blanchard Training & Dev., Inc., 2017 WL 2819847, at *6 (S.D. Cal. June 28,
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`2017) (“[P]laintiff's conclusory arguments about relevance and proportionality are not enough to
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`convince the Court that it is entitled to an order compelling defendant to produce all of the
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`[discovery in question].”).
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`Specifically, Comcast’s provides three arguments as to why the identity of all individuals
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`with a financial interest are relevant. Each of these arguments is speculative. See supra, fn. 4. First,
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`Comcast’s position flips the witness bias inquiry on its head, asking Touchstream to first identify
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`the purported bias
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`before Comcast identifies their relevance.
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`Second, Comcast’s claim that the information could refute potential trial narratives is again
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`2 The second sentence of Comcast’s Motion sets the tone for its fishing expedition: “Any
`person with a Financial Interest is a potential witness because they may have discoverable
`information about Touchstream or the value of the Asserted Patents, among other things.” Mot. at
`1; see also id. at 4 (“Further, investors in the company may have information about its success or
`failure…”); id. (“Finally, such individuals may have information that would rebut any
`Touchstream trial narrative that…”); id. (“Any person with a Financial Interest is likely to have
`analyzed, for example, the value of the company…”); id. (Indeed, persons with a financial interest
`may exert control over the company’s strategy…”); id. at 7 (“In particular, these agreements may
`show the valuations placed on the…”) (emphasis added to the above quotations).
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`4
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`Case 2:23-cv-00059-JRG Document 45 Filed 05/01/24 Page 9 of 13 PageID #: 1277
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`entirely speculative and has been soundly rejected by courts. See, e.g., GoTV Streaming, LLC v.
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`Netflix, Inc., 2023 WL 4237609, at *13 (C.D. Cal. May 24, 2023) (rejecting defendant's argument
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`that information related to litigation funding was relevant to refuting a David vs. Goliath trial
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`theme as speculative). Third, Comcast speculates that this information “may be” relevant to
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`damages. Even if this were not pure speculation, valuations done by someone who is nothing more
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`than an investor would not be relevant under the reasonable royalty analysis. Indeed, courts have
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`found that even litigation funding agreements are not relevant to damages and “are so far removed
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`from the hypothetical negotiation that they have no relevance.” AVM Techs., LLC v. Intel Corp.,
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`2017 WL 1787562, at *3 (D. Del. May 1, 2017).3
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`Similarly, Comcast’s arguments that Touchstream needs to produce all documents related
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`to any financial interest, including all capitalization tables, profit sharing agreements, and litigation
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`funding documents are again founded on mere speculation. Here Comcast argues that such
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`information is needed to “confirm the accuracy” of the information Touchstream has already
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`provided. Mot. at 6. Skepticism as to what has already been disclosed “is an improper ground for
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`compelling discovery.” Colibri, 2021 WL 10425630, at *3 (citations omitted). Comcast offered
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`nothing to indicate that Touchstream’s formal discovery responses are inaccurate. See Hammler v.
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`Clark, 2020 WL 8483914, at *4 (E.D. Cal. Dec. 11, 2020) (“Mere distrust and suspicion regarding
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`discovery responses do not form a legitimate basis to further challenge responses...’”).
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`Comcast also argues that such information and documents are necessary to understand
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`Touchstream’s ownership structure. Mot. at 6. Again, Comcast fails to explain how Touchstream’s
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`ownership structure is relevant to any claim or defense. Further, Comcast requests information
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`3 Comcast’s motion also ignores the dozens, if not hundreds, of documents Touchstream
`has produced relevant to the value of Touchstream and the Asserted Patents.
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`5
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`Case 2:23-cv-00059-JRG Document 45 Filed 05/01/24 Page 10 of 13 PageID #: 1278
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`FILED UNDER SEAL PURSUANT TO THE PROTECTIVE ORDER
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`regarding Touchstream’s ownership structure from its inception to the current day. Aside from
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`lacking relevance, this is also not proportional and is unduly burdensome as it would require
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`Finally, Comcast’s assertion that it needs to have the name of all individuals with a
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`financial interest in order to properly determine who is a potential witness again puts the cart before
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`the horse. Comcast simply equates financial interest with discoverability. Perhaps for a case
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`involving securities—but not for a patent infringement case. Comcast’s CEO and Chairman Brian
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`Roberts likely has a large ownership interest in Comcast—but without more, that does not justify
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`discovery into his interests or identifying him as a witness.
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`Touchstream’s compromise to provide
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` While Comcast’s proposal to provide financial
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`interests of all individuals on Comcast’s disclosures is at first intriguing, it is easy to see how this
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`could be gamed by simply listing individuals and entities to fish for the information that would
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`otherwise be deemed speculation. Just for example, Comcast’s disclosures already list
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`Touchstream law firms, individuals with marginal (if any) relevance, and “any individuals
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`identified by the parties’ documents.”
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`In short, Comcast fails to provide anything other than speculation to justify its vastly
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`overbroad discovery requests. See generally Micro Motion, 894 F.2d at 1326 (“‘[R]equested
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`information is not relevant to ‘subject matter involved’ in the pending action if the inquiry is based
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`on the party's mere suspicion or speculation”). Touchstream’s compromise is fair and proportional,
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`and Comcast’s motion should be denied.
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`III. Comcast’s requests are not proportional to the needs of this case.
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`In addition to being relevant and non-privileged, materials sought in discovery must also
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`be “proportional to the needs of the case” which includes “whether the burden or expense of the
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`6
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`Case 2:23-cv-00059-JRG Document 45 Filed 05/01/24 Page 11 of 13 PageID #: 1279
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`proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Comcast’s assertion
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`that there is no burden because Touchstream “is aware of who has an interest in the company” falls
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`flat. Mot. at 5. Being “aware” of information has no bearing on the burden to provide discovery
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`into it. Indeed, Comcast’s motion is devoid of any effort to address proportionality, conclusively
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`stating that it should be allowed to discover this information simply because “Touchstream has not
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`articulated any concern regarding burden.” Mot. at 7. Not so. Touchstream repeatedly explained
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`the overbreadth and burden of Comcast’s requests, which seek the identity of “all individuals”
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`with a financial interest, all documents showing the “the extent and nature” of any financial
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`interest, including all capitalization tables since Touchstream’s inception, and all documents
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`remotely relating to financing of the litigation.4 See Ex. 1 at 3-4. Overly broad and unduly
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`burdensome interrogatories are consistently denied as “an abuse of the discovery process.” Unilin
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`Beheer B.V. v. NSL Trading Corp., 2015 WL 12659919, at *4 (C.D. Cal. Mar. 27, 2015); Rivera
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`v. Nibco, Inc., 364 F.3d 1057, 1072 (9th Cir. 2004) (noting that courts “need not condone the use
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`of discovery to engage in ‘fishing expedition[s]’”). Ordering Touchstream to produce such
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`irrelevant information and documents would not be proportional to the needs of the case. See Space
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`Data Corp. v. Google LLC, 2018 WL 3054797, *1 (N.D. Cal. 2018) (denying litigation funding
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`discovery; “Court is not persuaded that the material sought are relevant to any party’s claim or
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`defense and ‘proportional to the needs of the case.’”).
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`CONCLUSION
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`For these reasons, Touchstream respectfully requests that Comcast’s Motion be denied.
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`4 The inadvertent production of one capitalization table does not make the process any less
`proportional or less burdensome.
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`7
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`Case 2:23-cv-00059-JRG Document 45 Filed 05/01/24 Page 12 of 13 PageID #: 1280
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`Dated: April 24, 2024
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`
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`Respectfully Submitted,
`
`/s/ Ryan Dykal
`Ryan Dykal (Pro Hac Vice)
`Philip Eckert (Pro Hac Vice)
`Jordan Bergsten (Pro Hac Vice)
`Shook, Hardy & Bacon L.L.P.
`2555 Grand Boulevard
`Kansas City, MO 64108
`Phone: (816) 474-6550
`Fax: (816) 421-5547
`Email: rdykal@shb.com
`Email: peckert@shb.com
`Email: jbergsten@shb.com
`
`Robert H. Reckers (State Bar No. 24039520)
`Anita Liu (State Bar No. 24134054)
`Andrew M. Long (State Bar No. 24123079)
`Shook, Hardy & Bacon L.L.P.
`JPMorgan Chase Tower
`600 Travis St, Suite 3400
`Houston, TX 77002-2926
`Phone: (713) 227-8008
`Fax: (713) 227-9508
`Email: rreckers@shb.com
`Email: aliu@shb.com
`Email: amlong@shb.com
`
`Counsel for Plaintiff
`Touchstream Technologies, Inc.
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`Case 2:23-cv-00059-JRG Document 45 Filed 05/01/24 Page 13 of 13 PageID #: 1281
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`CERTIFICATE OF SERVICE
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`I hereby certify that on April 24, 2024, I electronically filed the foregoing with the Clerk
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`of Court using the CM/ECF system, and all counsel of record who are deemed to have consented
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`to electronic service are being served with a copy of this document via the Court’s CM/ECF
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`system.
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`Further, I hereby certify that I emailed counsel for Defendant a courtesy copy of the
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`foregoing.
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`/s/ Ryan Dykal
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`9
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