Preview
08/26/2011 11:27 FAX 7134257 KRC&L 141002/010
No. 048-232432-08
CONTINENTAL SERVICING CO., L.L.C. § IN THE DISTRICT COURT
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FSB FINANCIAL, L.L.C.; JOHN DOE §
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REGIONAL ACCEPTANCE CORPORATION'S RESPONSE TO PLAINTIFF'S
RESPONSE TO SWS DEFENDANTS' MOTION TO CLARIFY THE RECORD
Defendant, Regional Acceptance Corporation ("RAC"), files this Response to Plaintiffs
Response ("Plaintiffs Response") to SWS Defendants' Motion to Clarify the Record, and in
support hereof would respectfully show the Court as follows:
I. INTRODUCTION
I. Plaintiffs Response asserts that the Court should reopen the evidence and
sanction RAC because RAC allegedly engaged in discovery abuse by failing to produce a CD
that FSB provided to the Iowa Attorney General in April, 2005. RAC first learned of the
existence of the CD on May 11,2011 and RAC has never had a copy of the CD.
2. After reviewing Plaintiff's Response, however, RAC commenced a
comprehensive investigation to determine whether it had possession of any other FSB
documents which were responsive to Plaintiffs document requests. As a result of this
investigation, RAC discovered FSB electronic data files, mostly in the form of e-mail.s, which
had inadvertently not been discovered by RAC or produced in discovery. It is questionable
whether any of these additional documents shed any new light on the issues before the Court.
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Nonetheless, to the extent these documents contain material information, RAC cannot, in good
conscience, oppose the reopening of the record to allow the Court to consider them. As is
discussed in more detail below, however, the failure of these documents to be produced was
unintentional and RAC has acted with utmost good faith in locating additional documents and
bringing them to the attention of the Court and the parties. Accordingly, RAC submits that
discovery sanctions are not warranted.
II. ADDITIONAL FACTS
3. In support of its request to open the record to consider the so called "post trial
evidence" and for sanctions, Plaintiff attempts to collapse FSB and RAC into a single entity by,
for example, referring to FSB and RAC as "FSB/RAC". As the Court is well aware, FSB and
RAC are separate entities with separate counsel. Until now, Plaintiff has treated FSB and RAC
as distinct entities as evidenced by the fact that Plaintiff directed separate sets of discovery to
FSB and RAC. RAC urges the Court to keep this important distinction in mind in considering
the issues raised by Plaintiff's Response.
4. Exhibit I to Plaintiffs Response is an April 26, 2005 letter from Jay Reedy to the
Iowa Attorney General. As counsel for FSB, Mr. Reedy provided the Iowa Attorney General a
CD of documents responsive to a subpoena served on FSB. RAC did not purchase certain of
FSB's assets until almost a year after FSB's production of the CD. RAC played no role in the
assembly of the documents on the CD or the production of these documents to the Iowa
Attorney General.
5. RAC first learned of the existence of the CD on May 11, 2011 (during trial),
when Plaintiffs counsel provided RAC's counsel with a copy of the April 26, 2005 Jay Reedy
letter (Exhibit I to Plaintiffs Response). Upon receiving Plaintiff's Response, RAC began
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interviewing former FSB employees who are now with RAC, current RAC employees who
never worked for FSB and prior RAC employees who were never at FSB to determine if any
were aware of the CD; none were. As a result of its investigation, RAC ha~ concluded that the
only two people who were aware of the CD are Steve Burke and Jay Reedy. It is RAC's
understanding that Mr. Reedy did not keep a copy of the CD.
6. RAC also commenced a comprehensive investigation to determine whether RAC
had in its possession any documents responsive to Plaintiffs First Request for Production of
Documents to RAC {the "RAC Document Request"). The results of this investigation are
described below.
7. Plaintiff served the RAC Document Request in August, 2009 and RAC
responded in September, 2009. The three people primarily responsible for providing responsive
documents were Steve Burke {formerly with FSB but an employee of RAC at the time), Jay
Reedy {former litigation counsel for RAC) and Steve Levine (former RAC in house counsel). 1
At the time the RAC Document Request was received, Mr. Levine believed that there was no
FSB electronic data in RAC's possession. Mr. Levine further believed that any server
transferred to RAC when RAC purchased certain of FSB's assets had been lost. Thus, no search
was conducted to determine whether RAC had possession of FSB documents in electronic form.
Mr. Levine also believed that Plaintiffs request for documents evidencing communications
between FSB and Dan Nelson should have been directed to FSB, not RAC.
8. The RAC Document Request (Exhibit D to Plaintiffs Response) defines "SWS"
to include FSB and separately defines RAC. Request for Production No. 6 requests:
1
Steve Burke left RAC in February, 2011. Steve Levine left RAC May 14,2010. The
Court allowed Jay Reedy to withdraw as RAC's counsel on June 7, 2011.
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All documents received from or sent to Dan Nelson Automotive Group, Inc. or
South Dakota Acceptance Corporation concerning the purchase of a portfolio of
automobile loans from Dan Nelson Automotive Group or South Dakota
Acceptance Corporation by FSB Financial, Ltd.
9. This document request seeks documents received from or sent to Dan Nelson
Automotive Group, Inc. or South Dakota Acceptance Corporation "by FSB Financial, Ltd."
RAC responded that it "has no such documents responsive to this request." RAC believed this
to be a true statement. Mr. Levine did not believe that RAC had possession of any documents
sent "by FSB Financial, Ltd." In addition, RAC has not discovered the existence of any
documents received from or sent to Dan Nelson Automotive Group, Inc. or South Dakota
Acceptance Corporation by RAC.
10. Given the abuse of discovery allegations contained in Plaintiff's Response, RAC
decided to further investigate whether RAC had possession of any FSB e-mails or other
electronic data. As part of this process, RAC identified 3 servers, 2 desktop workstations and 2
laptops which could potentially contain FSB documents. Each of these were searched using
specific search criteria to determine the existence of any responsive documents. For example,
RAC conducted a search under the names "Dan Nelson" and "Dan Nelson Automotive Group".
RAC also conducted searches using the names of the various senders and recipients of e-mails
contained on the CD provided to the Iowa Attorney General.
11. Initially, these searches failed to find any responsive e-mails. As RAC continued
to drill down further and further, however, potentially responsive e-mails in electronic form
began to be found. These findings, in tum, produced additional names and subjects to be used
as search criteria such that RAC was able to search more than 1.5 million electronic documents,
in excess of 400,000 files and tens of thousands of e-mails and attachments. As a result of this
investigation, RAC discovered in excess of 2,000 pages of potentially responsive documents,
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including a Steve Burke e-mail folder from the time he was at FSB which, as is discussed in
more detail below, has required RAC to retain an outside IT contractor.
12. The discovery of potentially responsive FSB documents on RAC's servers did
not end the inquiry. Although RAC clearly had possession of these documents, it was less than
clear whether RAC owned some or all of the potentially responsive documents. A further
complication is the fact that the Steve Burke e-mail folder contains not only potentially
responsive documents but also potentially privileged communications between FSB and the
Winstead Jaw firm in connection with the sale of FSB to RAC, as well as potentially privileged
communications between Steve Burke and the Shannon Gracey law firm, which represented Mr.
Burke, personally, in connection with the FSB asset sale to RAC.
13. The Asset Purchase Agreement between FSB and RAC (the "APA") does not
specifically address the transfer of electronic data from FSB to RAC. The Agreement also does
not address any issues relating to privileged communications contained within the electronic
data transferred from FSB to RAC. As a result, as part of the process, RAC and FSB recently
reached an agreement pursuant to which all FSB electronic data in possession of RAC will
remain with RAC, except for any privileged communications between FSB, Steve Burke,
Winstead and Shannon Gracey relating to the APA. RAC has hired an outside IT consultant to
find and remove any such privileged communications in the possession of RAC. That process
is ongoing. Once completed, the privileged communications will be provided to FSB's counsel
and not retained by RAC. After the removal of the privileged communications, RAC will
search the remaining data file to determine whether any additional electronic data exists which
is responsive to the RAC Document Request. It is anticipated that this process will be
completed by September 8, 2011.
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14. With the exception of the electronic data file being reviewed by the outside IT
consultant, RAC has completed its review of the electronic data that was transferred to RAC in
connection with the AP A. RAC has identified in excess of 2,000 pages of FSB electronic
docwnents which have not previously been produced. These consist primarily of e-mails and
attachments for the time period from September, 2004 to July, 2005 (prior to the FSB asset sale
to RAC). The documents arc being bates labeled and RAC expects to provide them to Plaintiff
and FSB by September 1, 2011.
III. ARGUMENT AND AUTHORITY
A. PLAINTIFF'S REQUEST TO REOPEN THE EVIDENCE.
15. Plaintiffs Response states that its request to reopen the evidence is contingent on
the Court first granting the SWS Defendants' request to reopen the evidence. RAC supports the
SWS Defendants' request to reopen the evidence.
16. With respect to Plaintiffs request to reopen the evidence to admit the CD
obtained from the Iowa Attorney General, RAC submits that a reasonable argument can be
made that Plaintiff cannot meet the standard for reopening the record under Rule 270 of the
Texas Rules of Civil Procedure, to wit, that (1) the moving party showed diligence in obtaining
the evidence; (2) the proffered evidence is decisive; (3) reception of such evidence will not
cause undue delay; and (4) granting or refusing the motion will cause an injustice. Hernandez
v. Lautensack, 201 S.W. 3d 771, 779 (Tex.App.-Fort Worth 2006, rehearing overruled).
17. RAC expects, however, that Plaintiff will also seek to reopen the evidence after
receipt and review of the additional documents to be produced by RAC. Given that RAC has
only recently discovered the existence of these documents, it would be disingenuous for RAC to
assert that Plaintiff failed to exercise diligence in obtaining them. RAC also acknowledges that
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it has contributed to delaying the conclusion of this proceeding during the search for these
documents. Accordingly, RAC is not in a position to assert that the evidence should not be
reopened because the receipt of this additional evidence will cause undue delay. Although the
volume of documents found by RAC is significant, the substantive significance of the
information contained in the documents themselves is questionable. Plaintiff, however, has the
right to review the documents and reach its own conclusions. At the end of the day, it very well
may be that none of the additional information produced by RAC is material or decisive.
Nonetheless, RAC will not stand in the way of Plaintiff reopening the record if the information
contained in these additional documents warrants it.
B. PLAINTIFF'S REQUEST FOR SANCTIONS. 2
18. As a threshold matter, RAC again apologizes to the Court and the parties for the
failure of these documents to be produced during discovery.· Nonetheless, RAC's thorough
investigation has confirmed that the failure to produce the documents was unintentional and was
the result of the mistaken belief that RAC did not have FSB's electronic documents in its
possession. Once Plaintiff raised the issue, RAC devoted substantial time, expense and
manpower to search for additional responsive documents. Even RAC's initial searches failed to
discover the existence of e-mails, which are the majority of the 2,000 pages of found
documents. Once the additional documents were discovered, RAC had to resolve the thorny
issue about which of the documents belonged to RAC and which belonged to FSB. With that
issue resolved, RAC is now in a position to produce the majority of these documents to Plaintiff
·and FSB by September 1, 2011.
2
RAC objects to the Court's consideration of a request for sanctions that is not brought
by motion and which is unsupported by any evidence.
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19. Although not an excuse for the failure to produce these documents, RAC also
questions whether the additional documents have any substantive significance. Ultimately, this
will be for the Court to decide. RAC wants to assure the Court, however, that these documents
were not intentionally withheld from production and that RAC has acted diligently and in good
faith in addressing the issues raised in Plaintiffs Response.
IV. CONCLUSION
20. To the extent the additional documents produced by RAC are material to the
matters before the Court and justify reopening the case, RAC does not oppose the reopening of
the evidence in this case. Furthermore since RAC's failure to produce these documents was
inadvertent, RAC requests that Plaintiffs request for sanctions as to RAC be denied.
Respectfully submitted,
~P.
Michael P. Ridulfo
Kane Russell Coleman & Logan PC
State Bar No. 16902020
919 Milam, Suite 2200
Houston, Texas 77002
(713) 425-7400 (Telephone)
(713) 425-7700 (Facsimile)
ATIORNEY FOR DEFENDANT,
REGIONAL ACCEPTANCE CORPORATION
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CERTIFICATE OF SERVICE
I hereby certify that on this 26th day of August, 2011, a true and correct copy of this
document was mailed to Plaintiffs counsel of record via facsimile (where indicated) and via
Regular Mail.
Michael P. Ridulfo
Via Facsimile (214) 200-0379
Marty L. Brimmage, Jr.
Lacy M. Lawrence
Haynes & Boone, LLP
2323 Victory Avenue, Suite 700
Dallas, Texas 75219
Via Facsimile (817) 334-0425
Geffrey W. Anderson
Murray W. Camp
Anderson, Riddle, & Kuehler, L.L.P.
1604 81h Avenue
Fort Worth, Texas 76104
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08/26/2011 11:27 FAX 7134257 KRC&L 141002/010 No. 048-232432-08 CONTINENTAL SERVICING CO., L.L.C. § IN THE DISTRICT COURT § § -l v. § 48TH JUDICIAL DISTltlCT"" --! § o~ o e- ::> c:n~ ,.. § § -;):> :::0 (/} = = ::::: ., SWS B, LTD. f/k/a FSB FINANCIAL, LTD.; § c-J -i ).:> N o- =-=il REGIONAL ACCEPTANCE CORPORATION; § n · o 1'1 SWS A, L.L.C. f/k/a FSBF, L.L.C., f/k/a § ~~\~ ~0 TARRANTCOUN~~ ~ FSB FINANCIAL, L.L.C.; JOHN DOE § ENTITYNOS. 1-4 § ;::v REGIONAL ACCEPTANCE CORPORATION'S RESPONSE TO PLAINTIFF'S RESPONSE TO SWS DEFENDANTS' MOTION TO CLARIFY THE RECORD Defendant, Regional Acceptance Corporation ("RAC"), files this Response to Plaintiffs Response ("Plaintiffs Response") to SWS Defendants' Motion to Clarify the Record, and in support hereof would respectfully show the Court as follows: I. INTRODUCTION I. Plaintiffs Response asserts that the Court should reopen the evidence and sanction RAC because RAC allegedly engaged in discovery abuse by failing to produce a CD that FSB provided to the Iowa Attorney General in April, 2005. RAC first learned of the existence of the CD on May 11,2011 and RAC has never had a copy of the CD. 2. After reviewing Plaintiff's Response, however, RAC commenced a comprehensive investigation to determine whether it had possession of any other FSB documents which were responsive to Plaintiffs document requests. As a result of this investigation, RAC discovered FSB electronic data files, mostly in the form of e-mail.s, which had inadvertently not been discovered by RAC or produced in discovery. It is questionable whether any of these additional documents shed any new light on the issues before the Court. 1432285 vi (71586.00002.000) 2 of 10 8/26/201111:28:35 AM [Central Daylight Time] 08/26/2011 11:27 FAX 7134257 KRC&L 141003/010 Nonetheless, to the extent these documents contain material information, RAC cannot, in good conscience, oppose the reopening of the record to allow the Court to consider them. As is discussed in more detail below, however, the failure of these documents to be produced was unintentional and RAC has acted with utmost good faith in locating additional documents and bringing them to the attention of the Court and the parties. Accordingly, RAC submits that discovery sanctions are not warranted. II. ADDITIONAL FACTS 3. In support of its request to open the record to consider the so called "post trial evidence" and for sanctions, Plaintiff attempts to collapse FSB and RAC into a single entity by, for example, referring to FSB and RAC as "FSB/RAC". As the Court is well aware, FSB and RAC are separate entities with separate counsel. Until now, Plaintiff has treated FSB and RAC as distinct entities as evidenced by the fact that Plaintiff directed separate sets of discovery to FSB and RAC. RAC urges the Court to keep this important distinction in mind in considering the issues raised by Plaintiff's Response. 4. Exhibit I to Plaintiffs Response is an April 26, 2005 letter from Jay Reedy to the Iowa Attorney General. As counsel for FSB, Mr. Reedy provided the Iowa Attorney General a CD of documents responsive to a subpoena served on FSB. RAC did not purchase certain of FSB's assets until almost a year after FSB's production of the CD. RAC played no role in the assembly of the documents on the CD or the production of these documents to the Iowa Attorney General. 5. RAC first learned of the existence of the CD on May 11, 2011 (during trial), when Plaintiffs counsel provided RAC's counsel with a copy of the April 26, 2005 Jay Reedy letter (Exhibit I to Plaintiffs Response). Upon receiving Plaintiff's Response, RAC began 1432285 vI (71586.00002.000) 3 of 10 812612011 11:28:35 AM [Central Daylight Time] ... 08/26/2011 11:28 FAX 7134257 KRC&L 141004/010 interviewing former FSB employees who are now with RAC, current RAC employees who never worked for FSB and prior RAC employees who were never at FSB to determine if any were aware of the CD; none were. As a result of its investigation, RAC ha~ concluded that the only two people who were aware of the CD are Steve Burke and Jay Reedy. It is RAC's understanding that Mr. Reedy did not keep a copy of the CD. 6. RAC also commenced a comprehensive investigation to determine whether RAC had in its possession any documents responsive to Plaintiffs First Request for Production of Documents to RAC {the "RAC Document Request"). The results of this investigation are described below. 7. Plaintiff served the RAC Document Request in August, 2009 and RAC responded in September, 2009. The three people primarily responsible for providing responsive documents were Steve Burke {formerly with FSB but an employee of RAC at the time), Jay Reedy {former litigation counsel for RAC) and Steve Levine (former RAC in house counsel). 1 At the time the RAC Document Request was received, Mr. Levine believed that there was no FSB electronic data in RAC's possession. Mr. Levine further believed that any server transferred to RAC when RAC purchased certain of FSB's assets had been lost. Thus, no search was conducted to determine whether RAC had possession of FSB documents in electronic form. Mr. Levine also believed that Plaintiffs request for documents evidencing communications between FSB and Dan Nelson should have been directed to FSB, not RAC. 8. The RAC Document Request (Exhibit D to Plaintiffs Response) defines "SWS" to include FSB and separately defines RAC. Request for Production No. 6 requests: 1 Steve Burke left RAC in February, 2011. Steve Levine left RAC May 14,2010. The Court allowed Jay Reedy to withdraw as RAC's counsel on June 7, 2011. 1432285 vi (71586 00002 000) 4 of 10 812612011 11:28:35 AM [Central Daylight Time] 08/26/2011 11:28 FAX 7134257 KRC&L 141005/010 All documents received from or sent to Dan Nelson Automotive Group, Inc. or South Dakota Acceptance Corporation concerning the purchase of a portfolio of automobile loans from Dan Nelson Automotive Group or South Dakota Acceptance Corporation by FSB Financial, Ltd. 9. This document request seeks documents received from or sent to Dan Nelson Automotive Group, Inc. or South Dakota Acceptance Corporation "by FSB Financial, Ltd." RAC responded that it "has no such documents responsive to this request." RAC believed this to be a true statement. Mr. Levine did not believe that RAC had possession of any documents sent "by FSB Financial, Ltd." In addition, RAC has not discovered the existence of any documents received from or sent to Dan Nelson Automotive Group, Inc. or South Dakota Acceptance Corporation by RAC. 10. Given the abuse of discovery allegations contained in Plaintiff's Response, RAC decided to further investigate whether RAC had possession of any FSB e-mails or other electronic data. As part of this process, RAC identified 3 servers, 2 desktop workstations and 2 laptops which could potentially contain FSB documents. Each of these were searched using specific search criteria to determine the existence of any responsive documents. For example, RAC conducted a search under the names "Dan Nelson" and "Dan Nelson Automotive Group". RAC also conducted searches using the names of the various senders and recipients of e-mails contained on the CD provided to the Iowa Attorney General. 11. Initially, these searches failed to find any responsive e-mails. As RAC continued to drill down further and further, however, potentially responsive e-mails in electronic form began to be found. These findings, in tum, produced additional names and subjects to be used as search criteria such that RAC was able to search more than 1.5 million electronic documents, in excess of 400,000 files and tens of thousands of e-mails and attachments. As a result of this investigation, RAC discovered in excess of 2,000 pages of potentially responsive documents, 1432285 vi (71586.00002000) 5 of 10 81261201111:28:35 AM [Central Daylight Time] 08/26/2011 11:29 FAX 7134257 KRC&L 141006/010 including a Steve Burke e-mail folder from the time he was at FSB which, as is discussed in more detail below, has required RAC to retain an outside IT contractor. 12. The discovery of potentially responsive FSB documents on RAC's servers did not end the inquiry. Although RAC clearly had possession of these documents, it was less than clear whether RAC owned some or all of the potentially responsive documents. A further complication is the fact that the Steve Burke e-mail folder contains not only potentially responsive documents but also potentially privileged communications between FSB and the Winstead Jaw firm in connection with the sale of FSB to RAC, as well as potentially privileged communications between Steve Burke and the Shannon Gracey law firm, which represented Mr. Burke, personally, in connection with the FSB asset sale to RAC. 13. The Asset Purchase Agreement between FSB and RAC (the "APA") does not specifically address the transfer of electronic data from FSB to RAC. The Agreement also does not address any issues relating to privileged communications contained within the electronic data transferred from FSB to RAC. As a result, as part of the process, RAC and FSB recently reached an agreement pursuant to which all FSB electronic data in possession of RAC will remain with RAC, except for any privileged communications between FSB, Steve Burke, Winstead and Shannon Gracey relating to the APA. RAC has hired an outside IT consultant to find and remove any such privileged communications in the possession of RAC. That process is ongoing. Once completed, the privileged communications will be provided to FSB's counsel and not retained by RAC. After the removal of the privileged communications, RAC will search the remaining data file to determine whether any additional electronic data exists which is responsive to the RAC Document Request. It is anticipated that this process will be completed by September 8, 2011. 1432285 vi (71586.00002.000) 6 of 10 81261201111:28:35 AM [Central Daylight Time] 08/26/2011 11:30 FAX 7134257 KRC&L 141007/010 14. With the exception of the electronic data file being reviewed by the outside IT consultant, RAC has completed its review of the electronic data that was transferred to RAC in connection with the AP A. RAC has identified in excess of 2,000 pages of FSB electronic docwnents which have not previously been produced. These consist primarily of e-mails and attachments for the time period from September, 2004 to July, 2005 (prior to the FSB asset sale to RAC). The documents arc being bates labeled and RAC expects to provide them to Plaintiff and FSB by September 1, 2011. III. ARGUMENT AND AUTHORITY A. PLAINTIFF'S REQUEST TO REOPEN THE EVIDENCE. 15. Plaintiffs Response states that its request to reopen the evidence is contingent on the Court first granting the SWS Defendants' request to reopen the evidence. RAC supports the SWS Defendants' request to reopen the evidence. 16. With respect to Plaintiffs request to reopen the evidence to admit the CD obtained from the Iowa Attorney General, RAC submits that a reasonable argument can be made that Plaintiff cannot meet the standard for reopening the record under Rule 270 of the Texas Rules of Civil Procedure, to wit, that (1) the moving party showed diligence in obtaining the evidence; (2) the proffered evidence is decisive; (3) reception of such evidence will not cause undue delay; and (4) granting or refusing the motion will cause an injustice. Hernandez v. Lautensack, 201 S.W. 3d 771, 779 (Tex.App.-Fort Worth 2006, rehearing overruled). 17. RAC expects, however, that Plaintiff will also seek to reopen the evidence after receipt and review of the additional documents to be produced by RAC. Given that RAC has only recently discovered the existence of these documents, it would be disingenuous for RAC to assert that Plaintiff failed to exercise diligence in obtaining them. RAC also acknowledges that 1432285 vI (71586 00002.000) 7 of 10 8126/201111:28:35 AM [Central Daylight Time] 08/26/2011 11:30 FAX 7134257 KRC&L 141008/010 it has contributed to delaying the conclusion of this proceeding during the search for these documents. Accordingly, RAC is not in a position to assert that the evidence should not be reopened because the receipt of this additional evidence will cause undue delay. Although the volume of documents found by RAC is significant, the substantive significance of the information contained in the documents themselves is questionable. Plaintiff, however, has the right to review the documents and reach its own conclusions. At the end of the day, it very well may be that none of the additional information produced by RAC is material or decisive. Nonetheless, RAC will not stand in the way of Plaintiff reopening the record if the information contained in these additional documents warrants it. B. PLAINTIFF'S REQUEST FOR SANCTIONS. 2 18. As a threshold matter, RAC again apologizes to the Court and the parties for the failure of these documents to be produced during discovery.· Nonetheless, RAC's thorough investigation has confirmed that the failure to produce the documents was unintentional and was the result of the mistaken belief that RAC did not have FSB's electronic documents in its possession. Once Plaintiff raised the issue, RAC devoted substantial time, expense and manpower to search for additional responsive documents. Even RAC's initial searches failed to discover the existence of e-mails, which are the majority of the 2,000 pages of found documents. Once the additional documents were discovered, RAC had to resolve the thorny issue about which of the documents belonged to RAC and which belonged to FSB. With that issue resolved, RAC is now in a position to produce the majority of these documents to Plaintiff ·and FSB by September 1, 2011. 2 RAC objects to the Court's consideration of a request for sanctions that is not brought by motion and which is unsupported by any evidence. 1432285 vi (71586.00002.000) 8 of 10 81261201111:28:35 AM [Central Daylight Time] 08/26/2011 11:31 FAX 713425i KRC&L 141009/010 19. Although not an excuse for the failure to produce these documents, RAC also questions whether the additional documents have any substantive significance. Ultimately, this will be for the Court to decide. RAC wants to assure the Court, however, that these documents were not intentionally withheld from production and that RAC has acted diligently and in good faith in addressing the issues raised in Plaintiffs Response. IV. CONCLUSION 20. To the extent the additional documents produced by RAC are material to the matters before the Court and justify reopening the case, RAC does not oppose the reopening of the evidence in this case. Furthermore since RAC's failure to produce these documents was inadvertent, RAC requests that Plaintiffs request for sanctions as to RAC be denied. Respectfully submitted, ~P. Michael P. Ridulfo Kane Russell Coleman & Logan PC State Bar No. 16902020 919 Milam, Suite 2200 Houston, Texas 77002 (713) 425-7400 (Telephone) (713) 425-7700 (Facsimile) ATIORNEY FOR DEFENDANT, REGIONAL ACCEPTANCE CORPORATION 1432285 vi (7158600002.000) 9 of 10 8/26/201111:28:35 AM [Central Daylight Time] 08/26/2011 11:31 FAX 713425< KRC&L 141010/010 CERTIFICATE OF SERVICE I hereby certify that on this 26th day of August, 2011, a true and correct copy of this document was mailed to Plaintiffs counsel of record via facsimile (where indicated) and via Regular Mail. Michael P. Ridulfo Via Facsimile (214) 200-0379 Marty L. Brimmage, Jr. Lacy M. Lawrence Haynes & Boone, LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219 Via Facsimile (817) 334-0425 Geffrey W. Anderson Murray W. Camp Anderson, Riddle, & Kuehler, L.L.P. 1604 81h Avenue Fort Worth, Texas 76104 1432285 vI (71586.00002.000) 10 of 10 8/26/201111:28:35 AM [Central Daylight Time] 08/26/2011 11:26 FAX 7134257 KRC&L 141001/010 Thomas A. Wilder * Tarrant Countv ..,District Clerk Fax Filing Transmittal Form Attorney _ {V\ IL /+_ ff· f __L__l__ .f.~ 1_0 {) L FD__ _ Firm~mnc: KANE, RUSSELL, COLEMAN, Fnx 11 (/13..> !J.~~-:_2} 0 0 Subscriber N1m1ber: 95000249 Telephone # rJ./_j__) .$-2 .:i_:::"_J 1/0 0 Represenling 0 PlaintiFf I Petitioner )(! Defendant I Respondent 0 other }'J CIVil Fax numbers: 817-850-2928 0 Criminal 0 -l Family Law ::c ......, -i oS2 sa > IF YOU EVER HAVE A PRO_BLt;J~L~~j,._l,_l;_\,[E AT {817) 884-134~ :r; > = :.::::J AJ :::::(/) G") 2:'1 -- (") -t);> N CJ _,r 0 New Case Filing ("). of'l Cause of Action: Mvtions and other plead•ngswith fees m-- r-u-; :::o- ;::;I LJ c z 0 ':::J ~ -1 without fees Molions 1md other pt.,ad•nns CJ rr1 c.n -< w :::::0 Request for Service Documents A. B. C. 0. 1 r~!! i.i! &~"''wlo;, \)1 Olhi-lf 1. 2. 3. 4. 5. ~--l L1 $~.._. t:1c lo::own;g for tJCd!UOnal it'!StfiJCilOn::> 1 of 10 8126/201111:28:35 AM [Central Daylight Time)