I. vs. JOHN VILLARREAL, SUZETTE VILLARREAL, ... hand, a non-retained expert generally has personal...

CAUSE NO. 348-276014-14

MIKE HARVISON, HOLLIE HARVISON, HOPE HARVISON ANTHONY, KAY HARVISON PARKER, JOY HARVISON, STACIE HARVISON WOODCOCK, JOHN H. HARVISON, and 7HBF, LTD., by and through its General Partner, 7HBF MANAGEMENT CO., LTD., LLC, a Texas limited liability company,

Plaintiffs vs.

JOHN VILLARREAL, SUZETTE VILLARREAL, THE JOHN P. VILLARREAL IRREVOCABLE TRUST, THE SUZETTE L. VILLARREAL IRREVOCABLE TRUST, VILLARREAL CONSULTING, LLC WHITE OAK PERFORMANCE HORSES LLC, AND J. SUZETTE & CO., INC.

Defendants.

§ § § § § § § § § § § § § § § § § § § § § § § § §

IN THE DISTRICT COURT

343th JUDICIAL DISTRICT

TARRANT COUNTY, TEXAS

DEFENDANTS' REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR PROTECTIVE ORDER AND RESPONSE TO PLAINTIFFS' CROSS-MOTION

FOR SANCTIONS

COMES NOW, Defendants and files their Reply to Plaintiffs' Response to Defendants'

Motion for Protective Order and Response to Plaintiffs' Cross-Motion for Sanctions and in

support would respectfully show as follows:

I. REPLY

1. Plaintiffs primary argument is that they are entitled to seek unlimited discovery

from Allen H. Feige because they are shareholders entitled to seek the books and records of the

corporation. Allen H. Feige is a Certified Public Accountant whose firm, Feige & Tramp, was

DEFENDANTS' REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR PROTECTIVE ORDER AND RESPONSE TO PLAINTIFFS' CROSS-MOTION FOR SANCTIONS- Page I

348-276014-14 FILEDTARRANT COUNTY

3/16/2017 3:01:19 PMTHOMAS A. WILDER

DISTRICT CLERK

the corporation's independent accountant. He was not an officer of the Company. He was not a

Director of the Company. He was not a shareholder of the Company. He was not a person with

the authority to deliver an accounting directly to the Plaintiffs at their demand.

2. Even a most cursory review of the Subpoena Duces Tecum demonstrates that

Plaintiffs' requests are litigation-based, not corporation-based, and therefore allegations that the

documents must be produced base upon the Texas Business Organization code are unfounded.

The Subpoena Duces Tecum seeks documents that are also distinctively and deliberately stated

in a biased and harassing manner. In_fo~ the alleged "demand" by the Plaintiffs for the

accounting records was allegedly_!11ade i!l_Q~cember 2016-or over two years after the

C0_!!1m~9~ment of the litigfilion.

3. Plaintiffs are not entitled to use a Subpoena Duces Tecum to circumvent the

Business Organization Code and the Corporate By-Laws, by making demands directly upon the

CPA who examined the books, and then seeking documents far in excess of what is required

under the Business Organization Code and the Corporate By-Laws.

4. Plaintiffs are not entitled to use a Subpoena Duces Tecum to seek documents that

are otherwise not pennissible under the Texas Rules of Civil Procedure. It is burdensome,

harassing and outside the Texas Rules of Civil Procedure to seek documents from an expert

witness crafted in a manner to support Plaintiffs' claims and theories of the case.

5. Plaintiffs filled pages with claims that Mr. Feige is a non-retained expert witness

and therefore fair game for Plaintiffs' counsel to contact him, subpoena him, and demand

unlimited documents from him. (Response at 3-9)

A. Defendants' Objections to the Subpoena & Subpoena Duces Tecum Were Timely

6. Plaintiffs claim that Defendants' Objections to the Subpoena Duces Tecum and

the Subpoena of Allen H. Fiege were untimely. Since Plaintiffs failed to follow the proper

DEFENDANTS-REPLY TO PLAINTIFFS" RESPONSE TO DEFENDANTS' MOTION FOR PROTECTIVE ORDER AND RESPONSE TO PLAINTIFFS' CROSS-MOTION FOR SANCTIONS-

procedures for issuing and noticing a subpoena, such objection to timeliness is waived as moot.

7. A deposition subpoena may be served at the same time a deposition notice is

served. A subpoena compelling production or inspection of documents on tangible things from a

nonparty without a deposition must be served a reasonable time before the response is due but no

later than 30 days before the end of any applicable discovery period. Tex. R. Civ. P. 205.3(a).

8. Pursuant to Rule 205.2 of the Texas Rules of Civil Procedure, Plaintiffs' counsel

did not comply with the "Rules for Discovery from NonParties."

a. Defendants Were Within Their Rights to Move for a Protective Order

9. Any person affected by the discovery to move for a protective order within the

time permitted for discovery. Tex. R. Civ. P. 192.6. A Motion does not waive objections or

assertions of privilege. Id. Defendants served Objections to the Subpoena Duces Tecum and a

Motion for Protective Order. 1

b. The Subpoena and Subpoena Duces Tecum Were Improperly Served and Noticed: No Notice Was Provided to Defendants

10. Rule 205.2 requires that: A notice to produce documents or tangible things under

Rule 205.3 must be served at least 10 days before the subpoena compelling production is served.

Tex. R. Civ. P. 205.2. In order to obtain the production of documents from a non-paiiy, a party

must serve a notice to produce documents and a discovery subpoena. Tex. R. Civ. P. 205.3(a).

The notice and subpoena must be served on the non-party and on all other parties to the

litigation. Tex. R. Civ. P. 205.2; In re Benavides, 2014 Tex. App. LEXIS 4106 at *3-4 (Tex.

App.-San Antonio 2014).

11. The first time Plaintiffs' counsel made Defendants' counsel aware of the

operative Subpoena and Subpoena Duces Tecum to Allen H. Fiege was in a letter of January 24,

1 See Defendants' Motion for Protective Order; Exhibit C, Objections.

DEFENDANTS" REPLY TO PLAINTIFFS" RESPONSE TO DEFENDANTS" MOTION FOR PROTECTIVE ORDER AND RESPONSE TO PLAINTIFFS' CROSS-MOTION FOR SANCTIONS-

2017 after Plaintiffs' counsel had not only spoken with Allen H. Fiege, but surreptitiously sought

his "agreement" to comply on a later date.2 The Subpoena was sent to Allen H. Fiege3 at the

same time as the Notice of Intent was sent to Defendants' counsel.4 Further, Plaintiffs' counsel

claims that Mr. Fiege agreed to production, but then states in Plaintiffs' Response as referenced

in his e-mail that the documents were already in Plaintiffs' possession and others available

"shortly. "5

13. To th~ extent_that _the letter and attached "Notice of Intent" were provided on

Januaa._1_1, 2017, the "Notice" to counsel was defective because it was not made 10 days before

the _S_l,!l:mQena was issued. Tex. R. Civ. P. 205.2.

14. By failing to provide proper notice to the Defendants, Plaintiffs' counsel set in

motion a chain of events that was procedurally improper and precluded Defendants from reacting

under the proper procedural mechanisms. Tex. R. Civ. P. 205.2. Thus, Plaintiffs' counsel's

claims of misconduct and discovery obstruction flow from Plaintiffs' counsel's failure to follow

proper procedure.

15. Defendants designated Allen H. Feige as a non-retained expert witness.

Defendants were entitled to notice.

16. Procedural rules have imp01iant purposes are to be followed. The purpose of the

notice requirement is so that paiiies my file objections when nonparties are subject to a

subpoena. Parties are only permitted to secure discovery fom1 non-parties through the procedures

outlined in Rule 205.1. In re Guzman, 19 S.W. 3d 522, 524 (Tex. App.-Corpus Christi 2000,

orig. proceeding).

2 See Exhibit C to Defendants' Response to Plaintiffs' Motion to Compel. In Ms. Lumley's letter she demands

compliance by February 13, 2017 for document production. 3

Plaintiffs' Response, Exhibit E; Bye-email to Allen H. Feige, which is also improper under Tex. R. Civ. 176.5. 4

Id. 5

Plaintiffs' Response, Exhibit E.

DEFENDANTS' REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR PROTECTIVE ORDER AND RESPONSE TO PLAINTIFFS' CROSS-MOTION FOR SANCTIONS-

17. A notice to produce documents or tangible things under Texas Rules of Civil

Procedure Rule 205.3 must be served at least 10 days before the subpoena compelling production

is served. Tex. R. Civ. P. 205.2.

b. Protection from Undue Burden

18. Allen H. Feige was entitled to object to the Subpoena and the Subpoena Duces

Tecum. Defendants were entitled to object. Plaintiffs who caused the subpoena to be issued

must take reasonable steps to avoid imposing undue burden or expense on the person served. In

ruling on objections or motions for protection, the court must provide a person served with a

subpoena an adequate time for compliance, protection from disclosure of privileged material or

information, and protection from undue burden or expense. The Court may impose reasonable

conditions on compliance with a subpoena, including compensating the witness for undue

hardship. Tex. R. Civ. P. 176.7.

B. Discovery Regarding Non-Retained Experts

19. Rule 195 .1 of the Texas Rules of Civil Procedure lists permissible discovery tools

for the testifying expe1ts. Comment 2 states that Rule 195 does not address depositions of

nometained experts and it does not address production form them of the materials listed in Rule

192.3(e)(5)(witness bias) and Rule l 92.3(e)(6)(documents provided to or reviewed by the

expert). Comment 2 to Rule 195 provides the greater latitude for discovery versus retained

testifying experts.

20. Allen H. Feige was designated by the Defendants as their expert witness.

21. On January 24, 2017, Plaintiffs served Plaintiffs' Notice of Intent to take the

Deposition of Allen H. Feige Subpoena Duces Tecum.

22. Allen H. Feige was and is Defendant J. Suzette & Co., Inc.'s accountant and


auditor retained by the Company.

C. Control of Defendant J. Suzette & Co., Inc.

23. The distinction between retained and non-retained experts is generally that a

retained expe1i is hired and paid to review facts and form an opinion on that basis. On the other

hand, a non-retained expert generally has personal knowledge of the facts and has some type of

connection to the case. Non-retained expe1is, oftentimes treating physicians, police officers, or

other experts who may be involved in the specific facts of the case, are treated differently than

retained experts. But sometimes, the courts will consider an expert retained--even if designated

as non-retained-based upon the circumstances of the case. For example, a doctor who was

professor at a state medical school and whose job included consulting and testifying for

Department of Family and Protective Services was "retained experf' because he was employed

by and subject to control of the state on behalf of the department. In re MH., 319 S.W.3d 137,

145 (Tex. App.-Waco 2010, no pet. h.).

D. Plaintiffs Admit that They Believed Allen Feige Was Under Defendants' Control

24. In this Response and in Plaintiffs' Motion to Compel, Plaintiffs specifically

reference communications with Mr. Feige in which he informed Plaintiffs counsel that he

needed to speak to Defendants' counsel before responding. (Response at 3; Motion to Compel at

iii! 14 & 16).

E. Plaintiffs' Written Discovery Requests, Including the Subpoena Duces Tecum, Far Exceeds the Requirements Under the Very Statute Cited by Plaintiffs

1. Contention Requests Are Out of Bounds

25. Plaintiffs' requests that ask Allen H. Feige to provide documents that prove

Plaintiffs' contentions and theories of the case far exceed the scope of permissible discovery. A

Subpoena Duces Tecum (or Request for Production) is not the proper discovery procedure for


seeking information about Defendants' theories of the case. Such information may be

discovered through either a request for disclosure or through an interrogatory. Tex. R. Civ. P.

194.2( c )(permitting discovery of legal theories and, in general, the factual bases of the

responding party's claims and defenses); or Tex. R. Civ. P. 197.1.

26. Plaintiffs have taken this impermissible practice to another level by asking

Defendants' expert witness to produce documents that prove their theories of the case.

F. The Nature, Scope and Biased Questions Are Objectionable

27. The following requests are examples of requests that seek documents that

Plaintiffs seek to support their case:

DUCES TECUM NO. 1: The J. Suzette & Company, Inc. Balance Sheet as of December 31, 2011 Bates Labeled H002527 identifies "AIR Officers $697,219." See, J. Suzette & Co., Inc. Balance Sheet as of as of December 31, 2011 Bates Labeled H002737 - I-!002738, attached hereto as Exhibit A-1. Please produce any and all documents, reports, records, writings or other tangible evidence that reflect the Villarreals' payment to J. SUZETTE & CO., INC. of the amount of $767,864 indicated in the Feige & Tramp Accountants' Review of J. Suzette & Company, Inc. Financial Statements as of December 31, 2011 indicating John and/or Suzette Villarreal's account payable to the J. Suzette & Co., Inc. as of December 31, 2011.

DUCES TECUM NO. 2: Please produce any and all documents, reports, records, writings or other tangible evidence reflecting that John and/or Suzette Villarreal owed J. Suzette & Co., Inc. money as of December 31, 2011.

DUCES TECUM NO. 3: Please produce any and all documents, reports, records, writings or other tangible evidence reflecting that John and/or Suzette Villarreal did not owe J. Suzette & Co., Inc. money pursuant to the Feige & Tramp Accountants' Review of J. Suzette & Company, Inc. Financial Statements as of December 31, 2011.

DUCES TECUM NO. 4: Please produce any and all documents, reports, records, writings or other tangible evidence reflecting that John and/or Suzette Villarreal are entitled to any amount of offset from "Officers' accounts receivable [of] $767,864." See, Feige & Tramp Accountants' Review of J. Suzette & Co., Inc. Financial Statements as of December 31, 2011 Bates Labeled H002527, attached hereto and incorporated herein as though fully set forth at length as Exhibit A-2.

DUCES TECUM NO. 11: Please produce any and all documents, reports, records,

DEPENDANTS' REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR PROTECTIVE ORDER AND RESPONSE TO PLAINTIFFS' CROSS-MOTION FOR SANCTIONS-

wntmgs or other tangible evidence that reflect your disagreement with the J. Suzette & Co., Inc. Balance Sheet as of September 30, 2012 Bates Labeled H002737 - H002738 indicating "AIR Officers $660,696.59"

DUCES TECUM NO. 12: Please produce any and all documents, reports, records, writings or other tangible evidence that reflect your disagreement with the J. Suzette & Co., Inc. Balance Sheet as of September 30, 2012 Bates Labeled H002737 - H002738 that "AIR Officers $660,696.59" refers to the Villarreals' liability to pay J. Suzette & Co., Inc. for capital that the Villarreals removed from J. Suzette & Co., Inc. that had been invested by the Harvisons.

DUCES TECUM NO. 13: Please produce any and all documents, reports, records, writings or other tangible evidence that reflect your disagreement with the J. Suzette & Co., Inc. Balance Sheet as of as of December 31, 2011 Bates Labeled H002527 and its identification of "Officers' accounts receivable [of] $767,864" as accurately reflecting that as of December 31, 2011 collectively the Villarreals owed the amount of $767,864" to J. Suzette & Co., Inc.

DUCES TECUM NO. 14: Please produce any and all documents, reports, records, writings or other tangible evidence that reflect your disagreement with Feige & Tramp Accountants' Review of J. Suzette & Co., Inc. Financial Statements as of December 31, 2011 Bates Labeled H002527 indicating that the Villarreals collectively owed "Officers' accounts receivable [of] $767,864" to J. Suzette & Co., Inc. as of December 31, 2011.

2. Fishing Expeditions Are Not Permitted

28. Texas courts prohibit fishing expeditions-for both parties and non-parties-

when the basis of the requests are so vague, broad and unclear that Responding Parties are

unable to determine with reasonable certainty what Responding Parties are being called upon to

produce.

29. In this case, Plaintiffs do not identify any particular class or type of documents

but instead seek from Allen H. Feige all "evidence" he may have, with the further presumption

that he produce documents in a way that supports Plaintiffs' claims and allegations. Such a

request is vague, ambiguous and overbroad. Loflin v. Martin, 776 S.W.2d 145, 146 (Tex.1989).

A request for all evidence that supports an opposing party's allegations, but which does not

identify any particular class or type of documents, is an improper request to be allowed to


generally peruse all evidence the opposing party might have; such a request is vague and

overbroad. In re Master Flo Valve Inc., 485 S.W.3d 207, 218, 2016 Tex. App. LEXIS 721, *18

(Tex. App. Houston 14th Dist. 2016)( "all documents, communications, tangible or intangible

evidence relating in any way to defendants' claims, defenses, or alleged damages.")

30. Information may be discovered through either a request for disclosure under Civil

Procedure Rule 194 or through an interrogatory under Civil Procedure Rule 197. Tex. R. Civ. P.

194.2( c) (permitting discovery of legal theories and, in general, the factual bases of the

responding party's claims and defenses); Tex. R. Civ. P. 197.1.

3. Fishing Expeditions and Contention Requests Are Not Permitted

31. The Texas Supreme Court discussed this important issue thoroughly m the

seminal case of Loflin v. Martin, 776 S.W.2d 145, 146 (Tex.1989). In Loflin, one of the issues

was a request for all documents that supported Lumbermens' 6 allegations.

32. In this case,_ Plaintiffs have not asked for documents to support Defendants'

allegations, but instead have asked Allen H. Fei@ for documents that support Plaintiffs'

claims. This makes the request even more impermissible under the Rules.

33. In Loflin, the Court discussed how objections to a contention request for

production were proper on the basis that the request was vague, broad & unclear.

Lumbermens' final objection was made to Loftin's request for production #4 which demanded: "all notes, records, memoranda, documents and communications made that the carrier contends support its allegations [that the award of the Industrial Accident Board was contrary to the undisputed evidence]."

Lumbennens objected to request #4 on the basis that it was so vague, broad and unclear that Lumbermens was unable to determine with reasonable certainty what it was being called upon to produce.

Rule 167 of the Texas Rules of Civil Procedure governs the discovery and production of documents and other tangible things. The 1966 General

6 Lumbermens was the insurance carrier Defendant.


Commentary to Rule 167, Tex. R. Civ. P. quoted with approval the following from Steely and Gayle, Operation of the Discovery Rules, 2 Houston L. Rev. 222, 223 (1964 ): Unlike interrogatories and depositions, Rule 167 is not a fishing rule. It cannot be used simply to explore. You are permitted to fish under deposition procedures, but not under Rule 167. The Motion for Discovery must be specific, must establish materiality, and must recite precisely what is wanted. The Rule does not permit general inspection of the adversary's records.

Loftin has requested all evidence that SUQ120rts Lumbermens' allgations. The reguest does not identi:fy_l!fil_Qarticular class or ty.PQ_ of documents but it is merely a reguest that Loftin be_ allowed tQ_generally_Jl_eruse all evidence Lumbermens might have. We hold that such request was vague, ambiguous, and overbroad and that the trial court was within its sound discretion in sustaining Lumbennens' objection. No one seeks to deny Loftin's right to see evidence against him, but he must formulate his request for production with a certain degree of specificity to allow Lumbermens to comply.7

34. The issue in this case is identical to Loflin, because Plaintiffs are seeking from the

expert witness all documents that support Plaintiffs' contentions and theories in the case. The

requests are therefore vague, ambiguous and overbroad.

G. Plaintiffs' Claims that the Texas Business Organization Code Dictates Production of the Overreaching Requests Is Also Misplaced

1. AccounthyLB.ights of Shareholder$ Are Li_m_ited

35. Plaintiffs claim that they are entitled to the right to exan1ine the records of the

filing entity, but Plaintiffs ignore the specific statutory requirements for doing so.

36. Further, and more compelling, is Plaintiffs failure to show that they are entitled to

circumvent the Business Organization Code and the Corporate By-Laws, by making demands

directly upon the CPA who examined the books, and then seeking documents far in excess of

what is required under the Business Organization Code and the Corporate By-Laws.

37. The Texas Business Organization Code gives shareholders the limited right to

examine the books and records of a filing entity under restricted circumstances and in

7 Loftin v. Martin, 776 S.W.2d 145, 148, 1989 Tex. LEXIS 51, *9-11, 32 Tex. Sup. J. 401(Tex.1989)(emphasis

added).


compliance with the corporation's By-Laws.

Sec. 3.153. Right of Examination by Owner or Member. Each owner or member of a filing entity may examine the books and records of the filing entity maintained under Section 3 .151 and other books and records of the filing entity to the extent provided by the governing documents of the entity and the title of this code governing the filing entity. 8

Sec. 3.151. Books and Records for AH Filing Entities. (a) Each filing entity shall keep: (I) books and records of accounts; (2) minutes of the proceedings of the owners or members or governing authority of the filing entity and committees of the owners or members or governing authority of the filing entity; (3) at its registered office or principal place of business, or at the office of its transfer agent or registrar, a current record of the name and mailing address of each owner or member of the filing entity; and (4) other books and records as required by the title of this code governing the entity. (b) The books, records, minutes, and ownership or membership records of any filing entity, including those described in Subsection (a)(4), may be in written paper form or another form capable of being converted into written paper form within a reasonable time. (c) The records required by Subsection (a)(2) need not be maintained by a limited partnership or a limited liability company except to the extent required by its

. d 9 govermng ocuments.

38. In addition, the By-Laws of the Corporation also limit inspection of the books and

records. Io

Inspection of Books and Records 7.01. All books and records provided for by statute will be open for inspection of the shareholders from time to time and to the extent expressly provided by statute, and not otherwise. The Directors may examine the books and records at all reasonable times for any purpose reasonably related to their service as Directors. I I

2. The Right to Inspect the Books Is Not Absolute

39. The shareholder's right to examine the books and records of the corporation "is a

8 Tex. Business Organizations Code § 3.153 9

Tex. Business Organizations Code§ 3.151 JO By-Laws, Article 7 11 By-Laws, Article 7

DEFENDANTS' REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR PROTECTIVE ORDER AND RESPONSE TO PLAINTIFFS' CROSS-MOTION FOR SANCTIONS- Page 1 I

privilege ... incident to his ownership of stock."12 The right to inspect corporate books and

records exists so that the shareholder may "ascertain whether the affairs of the corporation are

properly conducted and that he may vote intelligently on questions of corporate policy and

management." 13 "The predisposition of the law is in favor of allowing reasonable inspections of

corporate books and records." 14

3. Motive Is Not Sufficient

40. The "right to inspect the books and records of a corporation, is not an absolute

right, regardless of the stockholders' motive." 15 In Guthrie v. Harkness, 16 the United States

Supreme Court noted that courts will not compel the inspection of the bank's books under all

circumstances. "In issuing the writ of mandamus the court will exercise a sound discretion, and

grant the right under proper safeguards to protect the interests of all concerned. The writ should

not be granted for speculative purposes, or to gratify idle curiosity, or to aid a blackmailer, but it

may not be denied to the stockholder who seeks the information for legitimate purposes." 17

However, the "right of a stockholder as conferred by statute to examine the corporate records,

although not absolute, is a valuable right." 18 And it must be made in good faith and for proper

purpose. 19

IV. ~ROSS-1\fOTIQN FQR SANCTJQ_NS~HOll_LD_ NOT BE GRANTED

12 Perry v. Peny Bros., Inc., 753 S.W.2d 773, 777 (Tex. App.-Dallas 1988, no writ) (Howell, J., dissenting).

13 Id. 14 Citizens Association for Sound Energy v. Boltz, 886 S.W.2d 283, 291 (Tex. App.-Amarillo 1994, writ denied), cert. denied 516 U.S. 1029 (1995). 15 Guaranty Old Line Life Co. v. McCallum, 97 S.W.2d 966, 967 (Tex. Civ. App.-Dallas 1936, no writ). 16 199 U.S. 148 (1905) 17

199 U.S. at 156. 18 Chavco Investment Company, Inc. v. Pybus, 613 S.W.2d 806, 810 (Tex. Civ. App.-Houston [14th Dist.] 1981, writ refd n.r.e.) 19

Williams v. Freeport Sulphur Co., 40 S. W .2d 817, 825 (Tex. Civ. App.-Galveston 1930, no writ) (right of inspection provided "both by the common law and the statutes of this state"); see a also Palacios v. Corbett, 172 S. W. 777, 782 (Tex. Civ. App.-San Antonio 1915, writ ref d)( common-law right to inspect county records).


41. Plaintiffs make much ado about the events that lead up to rescheduling the

hearing on Defendants' Motion for Protective Order. (Response) The issues related to scheduling

only have now been resolved and the hearing was rescheduled as was the Deposition of Allen H.

Fiege. Furthermore, Plaintiffs claims of intentional conduct is unfair, especially since Plaintiffs'

counsel failed to follow the proper procedures for obtaining the Subpoena and Subpoena Duces

Tecum. In fact, failing to comply with Rule 205 of the Texas Rules of Civil Procedure and Rule

13 of the Texas Rules of Civil Procedure are grounds for Sanctions against Plaintiffs' counsel

under Rule 13 and 215 of the Texas Rules of Civil Procedure. Plaintiffs' request for sanctions is

unwananted when the Response is no more than the "pot calling the kettle black."

42. Plaintiffs' allegations that Defendants are consistently resisting discovery

attempts has more to do with Plaintiffs' aggressive pursuit of the case, umeasonable demands

and time constraints, and failure to follow the proper procedural rules. Plaintiffs'

mischaracterizations and misstatements regarding discovery events should not be condoned.

Defendants have acted in good faith and claims of intentional conduct are unfair and

unreasonable. Plaintiffs may not like the objections to the Subpoena of Allen H. Feige and

Subpoena Duces Tecum, but raising such objections does not rise to a sanctionable offense.

II. PRAYER ------·--

WHEREFORE it is respectfully requested the Comi Grant Defendants' Protective Order

with regard to the Subpoena Duces Tecum; Deny Plaintiffs' Cross-Motion for Sanctions and

such other and further relief to which it may show itself justly entitled.


Respectfully submitted,

THE FEIN LAW FIRM, P.C.

Eric D. Fein State Bar No. 06879020 1::J~in@f1::iDl<l~JJrm~~~1m Vickie S. Brandt State Bar No. 24031878 vbrandt({~feinlawfim1.com -------·-.. -~------------- ----------·----

15455 N. Dallas Parkway, Suite 1225 Addison, Texas 75001 Telephone: (214) 522-9596 Facsimile: (214) 522-9599

ATTORNEYS FOR DEFENDANTS

CERTIFICATE OF SERVICE -----------·-----·-------

The undersigned hereby certifies that a true and correct copy of the above and foregoing document was forwarded via E-File, Certified Mail Return Receipt Requested, First Class Mail, Facsimile, and/or Hand Delivery on this the 161

h day of March 2017.

Via File and Email to: [email protected] Lisa Lumley Lisa Lumley Law 5104 Arbor Mill Drive Ft. Worth, Texas 76135

Eric D. Fein

DEFENDANTS' REPLY TO PLAINTIFFS. RESPONSE TO DEFENDANTS' MOTION FOR PROTECTIVE ORDER AND RESPONSE TO PLAINTIFFS' CROSS-MOTION FOR SANCTIONS-

I. vs. JOHN VILLARREAL, SUZETTE VILLARREAL, ... hand, a non-retained expert generally has personal...

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