Preview
FILED
10/18/2021 3:46 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Darling Tellez DEPUTY
CAUSE NO. DC-20-05169
TODD OFFEN IN THE DISTRICT COURT
§§§§§§§§§§§§§
Plaintiff,
VS. DALLAS COUNTY, TEXAS
CARLA KENYON, JOHN KENYON,
PROGRESSIVE COUNTY MUTUAL
INSURANCE COMPANY and STATE
FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY
Defendants 134TH JUDICIAL DISTRICT
PLAINTIFF’S OBJECTIONS TO NOTICES OF INTENTION TO TAKE
DEPOSITION BY WRITTEN QUESTIONS AND MOTION FOR
PROTECTIVE ORDER AND TO QUASH THE NOTICE AND SUBPOENA
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Plaintiff in the above entitled and numbered cause, and file his Objections
to Notice of Intention to Take Depositions on Written Questions, Motion for Protective Order and
to Quash the Notices and Subpoenas, and in support thereof would show this Honorable Court as
follows:
Introduction
Plaintiff filed this lawsuit to be compensated for his injuries and damages resulting from a
collision caused by Defendant which occurred on January 27, 2020.
On October 13, 2021, Discovery Records, Inc., a records deposition service, acting for and
on behalf of Defendant Progressive, served Plaintiff s counsel with Notices of Intention to Take
Depositions by Written Questions, directed to the Custodians of Records for:
State Farm Mutual Automobile Insurance Company
Claim No. 43 -06P5 -43K
PLAINTIFF’S OBJECTIONS TO NOTICE OF INTENTION TO TAKE DEPOSITION ON WRITTEN QUESTIONS,
MOTION FOR PROTECTIVE ORDER AND TO QUASH THE NOTICE AND SUBPOENA - Page 1
State Farm Mutual Automobile Insurance Company
Claim No. 43-22K5-47P
Included is subpoenas duces tecum attached seeking All recorded statements, transcripts
of recorded statements, color photographs of all vehlcle.t involved in the accident, physical
damage reports of all vehicles involved, property damage appraisal, estimate of repair, PIP claims
made, medical records/reports, and medical bills.
Additionally, the subpoena seeks All Claim Files and Insurance Records for a 06/04/202 I
Loss, Claim No. 43 '22k5-47p, Policy No. 406407143B; Including, but not limited to applications,
insurance claims, medical reports/records, medical bllls, Explanation of Benefits, Peace Officer‘s
Crash Report, Investigation reports, color photographs, audio tapes, recorded statements, Video
tapes, workers compensation claims, liability claims, transcripts, adjusters' reports, accident
reports, PIP information, personal property, real property and rental property claim records,
vehicle damage appraisals, estimates of repair, itemizations, letters of representation, demand
letters, lost wage documentation, settlement offers, payment checks, releases, and any
correspondence to and from any entity (Whether Individual, business, doctor or attorney - with the
exception of those documents protected by client privileges) and any other records which are in
your possession, custody, control, or at your access.
No effort was made to narrow the request to issues in this lawsuit or relevant documents
and certainly Without limitation as to time, scope or subject matter. Plaintiff has attached the
Notice of Intention to Take Depositions by Written Questions, as well as the subpoenas duces
tecum, and marked as Exhibit Number 1, and incorporated by reference herein as if fully set forth
at length.
PLAINTIFF’S OBJECTIONS TO NOTICE OF INTENTION TO TAKE DEPOSITION ON WRITTEN QUESTIONS,
MOTION FOR PROTECTIVE ORDER AND TO QUASH THE NOTICE AND SUBPOENA - Page 2
Objections — Healthcare Providers
Plaintiff objects to the deposition notice and subpoena concerning the requested healthcare
records as identified in the attached Exhibit Number 1 in that such notice and subpoena:
a) Lacks proportionality to the issues in this lawsuit;
b) Exceeds the appropriate bounds of discovery in time, scope and subject matter;
C) Far too broad and not narrowly tailored to the issues in this lawsuit;
d) Unreasonable invasion of Plaintiff s right to privacy in his personal healthcare information
which is unrelated to the injuries in question;
e) Constitutes an unreasonable invasion of Plaintiff s right to privacy;
Constitutes nothing more than harassment;
g) Seeks records which are not relevant or material to the issues, and not reasonably calculated
to lead to the discovery of admissible evidence; and
h) Plaintiff asserts his privilege against disclosure of protected healthcare information by
asserting his physician-patient privilege as to any and all medical records or other records
regarding healthcare that is not reasonably related to the injuries and conditions in this
lawsuit.
Argument & Authorities
In accordance with Rule 192.6, any party affected by a discovery request may move within
the time permitted for the response to the discovery request for an order protecting that person
from the discovery sought. Tex. R. Civ. P. 192.6(a). In return, the Court may order that the
discovery not be sought in whole or in part, or that the extent or subject matter of the discovery be
limited, or such other orders as the Court may find necessary to protect the subject of the discovery.
Tex. R. Civ. P. 192.6(b).
PLAINTIFF’S OBJECTIONS TO NOTICE OF INTENTION TO TAKE DEPOSITION ON WRITTEN QUESTIONS,
MOTION FOR PROTECTIVE ORDER AND TO QUASH THE NOTICE AND SUBPOENA - Page 3
Furthermore, Plaintiff’s objections, motion to quash, and protective order was made before
the time to comply with the deposition and subpoena.
Quash and/or Protective Order
Since the discovery request at issue is objectionable and violates Plaintiff‘s rights to privacy
in unrelated medical, among other things, Plaintiff seeks an order from this Court sustaining the
objections, quashing the notice and subpoena duces tecum, and issuing a protective order under
Rule 192.6.
Compliance with Subpoena Duces Tecum Not Required
Pending a Ruling by the Court on the Objections
Since Plaintiff has filed objections, moved to quash and for protective order as to the notice
and subpoena before the time to comply with the notice and subpoena duces tecum, the Custodians
ARE NOT REQUIRED TO COMPLY with the subpoenas unless and until they receive an order
from the Court directing otherwise. In this regard, Rule 176.6 states,
176.6 Response.
(d) Objections. A person commanded to produce and permit
inspection or copying of designated documents and things may
serve on the party requesting issuance of the subpoena — before
the time specified for compliance — written objections to producing
any or all of the designated materials. A person need not comply
with the part of a subpoena to which objection is made as provided
in this paragraph unless ordered to do so by the court. The party
requesting the subpoena may move for an order at any time after an
objection is made.
(e) Protective Orders. A person commanded to appear at a
deposition, hearing, or trial, or to produce and permit inspection and
copying of designated documents and things, and any other person
affected by the subpoena, may move for a protective order under
Rule 192.6(b) — before the time
specified for compliance
— either in
the court in which the action is pending or in a district court in the
county where the subpoena was served. The person must serve the
motion on all parties in accordance with Rule 21a. A person need
PLAINTIFF’S OBJECTIONS TO NOTICE OF INTENTION TO TAKE DEPOSITION 0N WRITTEN QUESTIONS,
MOTION FOR PROTECTIVE ORDER AND TO QUASH THE NOTICE AND SUBPOENA —
Page 4
not comply with the part of a subpoena from which protection is
sought under this paragraph unless ordered to do so by the court.
The party requesting the subpoena may seek such an order at any
time after the motion for protection is filed. (emphasis).
Tex. R. CiV. P. Rule 176.6(d) — (e).
Plaintiff HEREBY INSTRUCTS AND DEMANDS THAT THE FACILITIES
LISTED HEREIN not comply with the deposition notices or the subpoenas for all records,
among other things until such time as a hearing is held on this motion and an appropriate
order entered by the Court.
Conclusion
Plaintiff respectfully request this Honorable Court sustain his objections, quash the notices
and subpoenas and issue a protective order as appropriate to protect the interests of Plaintiff.
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the relief requested by
Plaintiff be granted for such other and further relief at law or in equity to which Plaintiff may be
justly entitled.
Respectfully submitted,
CLARK |VON PLONSKI IANDERSON
By: Jacob von Plonskz'
COLLEN A. CLARK
State Bar No. 04309100
JACOB L. von PLONSKI
State Bar No. 24098554
R. CONNOR BARBE
State Bar No. 24108598
3500 Maple Avenue, Suite 1250
Dallas, Texas 7521 9
214-780-0500
214-780-0501 Facsimile
PLAINTIFF’S OBJECTIONS TO NOTICE OF INTENTION TO TAKE DEPOSITION ON WRITTEN QUESTIONS,
MOTION FOR PROTECTIVE ORDER AND TO QUASH THE NOTICE AND SUBPOENA - Page 5
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was served on all
counsel of record on this the 18th day of October, 2021 in accordance with the TEXAS RULES OF
CIVIL PROCEDURE.
Randall G. Walters
WALTERS, BALIDo & GRAIN, L.L.P.
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
Jacob C. Boswell
HARRISON HULL & MUMM PLLC
112 West Virginia Street
McKinney, Texas 75069
Wesley M. Hightower
Chase Price
BLAIES & HIGHTOWER, LLP
420 Throckmorton St.
Suite 1200
Fort Worth, Texas 76102
/s/ Jacob von Plonski
JACOB VON PLONSKI
PLAINTIFF’S OBJECTIONS TO NOTICE OF INTENTION TO TAKE DEPOSITION 0N WRITTEN QUESTIONS,
MOTION FOR PROTECTIVE ORDER AND TO QUASH THE NOTICE AND SUBPOENA - Page 6
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Debbie Bullard on behalf of R. Connor Barbe
Bar No. 24108598
debbie@cvpalaw.com
Envelope ID: 58290672
Status as of 10/19/2021 8:55 AM CST
Associated Case Party: STATEFARM MUTUAL AUTOMOBILE INSURANCE
COMPANY
Name BarNumber Email TimestampSubmitted Status
Diane TWeisman dweisman@harrisonhu||.com 10/18/2021 3:46:51 PM SENT
Michael P.Gross mgross@harrisonhull.com 10/18/2021 3:46:51 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Francine Ly fly@dallascourts.org 10/18/2021 3:46:51 PM SENT
Wesley Hightower whightower@bhilaw.com 10/18/2021 3:46:51 PM SENT
M. ChasePrice cprice@bhilaw.com 10/18/2021 3:46:51 PM SENT
Rhonda Lambert rlambert@bhi|aw.com 10/18/2021 3:46:51 PM SENT
Victoria Rodriguez vrodriguez@bhi|aw.com 10/18/2021 3:46:51 PM SENT
Associated Case Party: PROGRESSIVE CASUALTY INSURANCE COMPANY
Name BarNumber Email TimestampSubmitted Status
Randall GWalters waltersedocsnotifications@wbclawfirm.com 10/18/2021 3:46:51 PM SENT
Associated Case Party: TODD OFFEN
Name BarNumber Email TimestampSubmitted Status
Collen AClark eservice@cvpalaw.com 10/18/2021 3:46:51 PM SENT
Preview
FILED 10/18/2021 3:46 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Darling Tellez DEPUTY CAUSE NO. DC-20-05169 TODD OFFEN IN THE DISTRICT COURT §§§§§§§§§§§§§ Plaintiff, VS. DALLAS COUNTY, TEXAS CARLA KENYON, JOHN KENYON, PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendants 134TH JUDICIAL DISTRICT PLAINTIFF’S OBJECTIONS TO NOTICES OF INTENTION TO TAKE DEPOSITION BY WRITTEN QUESTIONS AND MOTION FOR PROTECTIVE ORDER AND TO QUASH THE NOTICE AND SUBPOENA TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Plaintiff in the above entitled and numbered cause, and file his Objections to Notice of Intention to Take Depositions on Written Questions, Motion for Protective Order and to Quash the Notices and Subpoenas, and in support thereof would show this Honorable Court as follows: Introduction Plaintiff filed this lawsuit to be compensated for his injuries and damages resulting from a collision caused by Defendant which occurred on January 27, 2020. On October 13, 2021, Discovery Records, Inc., a records deposition service, acting for and on behalf of Defendant Progressive, served Plaintiff s counsel with Notices of Intention to Take Depositions by Written Questions, directed to the Custodians of Records for: State Farm Mutual Automobile Insurance Company Claim No. 43 -06P5 -43K PLAINTIFF’S OBJECTIONS TO NOTICE OF INTENTION TO TAKE DEPOSITION ON WRITTEN QUESTIONS, MOTION FOR PROTECTIVE ORDER AND TO QUASH THE NOTICE AND SUBPOENA - Page 1 State Farm Mutual Automobile Insurance Company Claim No. 43-22K5-47P Included is subpoenas duces tecum attached seeking All recorded statements, transcripts of recorded statements, color photographs of all vehlcle.t involved in the accident, physical damage reports of all vehicles involved, property damage appraisal, estimate of repair, PIP claims made, medical records/reports, and medical bills. Additionally, the subpoena seeks All Claim Files and Insurance Records for a 06/04/202 I Loss, Claim No. 43 '22k5-47p, Policy No. 406407143B; Including, but not limited to applications, insurance claims, medical reports/records, medical bllls, Explanation of Benefits, Peace Officer‘s Crash Report, Investigation reports, color photographs, audio tapes, recorded statements, Video tapes, workers compensation claims, liability claims, transcripts, adjusters' reports, accident reports, PIP information, personal property, real property and rental property claim records, vehicle damage appraisals, estimates of repair, itemizations, letters of representation, demand letters, lost wage documentation, settlement offers, payment checks, releases, and any correspondence to and from any entity (Whether Individual, business, doctor or attorney - with the exception of those documents protected by client privileges) and any other records which are in your possession, custody, control, or at your access. No effort was made to narrow the request to issues in this lawsuit or relevant documents and certainly Without limitation as to time, scope or subject matter. Plaintiff has attached the Notice of Intention to Take Depositions by Written Questions, as well as the subpoenas duces tecum, and marked as Exhibit Number 1, and incorporated by reference herein as if fully set forth at length. PLAINTIFF’S OBJECTIONS TO NOTICE OF INTENTION TO TAKE DEPOSITION ON WRITTEN QUESTIONS, MOTION FOR PROTECTIVE ORDER AND TO QUASH THE NOTICE AND SUBPOENA - Page 2 Objections — Healthcare Providers Plaintiff objects to the deposition notice and subpoena concerning the requested healthcare records as identified in the attached Exhibit Number 1 in that such notice and subpoena: a) Lacks proportionality to the issues in this lawsuit; b) Exceeds the appropriate bounds of discovery in time, scope and subject matter; C) Far too broad and not narrowly tailored to the issues in this lawsuit; d) Unreasonable invasion of Plaintiff s right to privacy in his personal healthcare information which is unrelated to the injuries in question; e) Constitutes an unreasonable invasion of Plaintiff s right to privacy; Constitutes nothing more than harassment; g) Seeks records which are not relevant or material to the issues, and not reasonably calculated to lead to the discovery of admissible evidence; and h) Plaintiff asserts his privilege against disclosure of protected healthcare information by asserting his physician-patient privilege as to any and all medical records or other records regarding healthcare that is not reasonably related to the injuries and conditions in this lawsuit. Argument & Authorities In accordance with Rule 192.6, any party affected by a discovery request may move within the time permitted for the response to the discovery request for an order protecting that person from the discovery sought. Tex. R. Civ. P. 192.6(a). In return, the Court may order that the discovery not be sought in whole or in part, or that the extent or subject matter of the discovery be limited, or such other orders as the Court may find necessary to protect the subject of the discovery. Tex. R. Civ. P. 192.6(b). PLAINTIFF’S OBJECTIONS TO NOTICE OF INTENTION TO TAKE DEPOSITION ON WRITTEN QUESTIONS, MOTION FOR PROTECTIVE ORDER AND TO QUASH THE NOTICE AND SUBPOENA - Page 3 Furthermore, Plaintiff’s objections, motion to quash, and protective order was made before the time to comply with the deposition and subpoena. Quash and/or Protective Order Since the discovery request at issue is objectionable and violates Plaintiff‘s rights to privacy in unrelated medical, among other things, Plaintiff seeks an order from this Court sustaining the objections, quashing the notice and subpoena duces tecum, and issuing a protective order under Rule 192.6. Compliance with Subpoena Duces Tecum Not Required Pending a Ruling by the Court on the Objections Since Plaintiff has filed objections, moved to quash and for protective order as to the notice and subpoena before the time to comply with the notice and subpoena duces tecum, the Custodians ARE NOT REQUIRED TO COMPLY with the subpoenas unless and until they receive an order from the Court directing otherwise. In this regard, Rule 176.6 states, 176.6 Response. (d) Objections. A person commanded to produce and permit inspection or copying of designated documents and things may serve on the party requesting issuance of the subpoena — before the time specified for compliance — written objections to producing any or all of the designated materials. A person need not comply with the part of a subpoena to which objection is made as provided in this paragraph unless ordered to do so by the court. The party requesting the subpoena may move for an order at any time after an objection is made. (e) Protective Orders. A person commanded to appear at a deposition, hearing, or trial, or to produce and permit inspection and copying of designated documents and things, and any other person affected by the subpoena, may move for a protective order under Rule 192.6(b) — before the time specified for compliance — either in the court in which the action is pending or in a district court in the county where the subpoena was served. The person must serve the motion on all parties in accordance with Rule 21a. A person need PLAINTIFF’S OBJECTIONS TO NOTICE OF INTENTION TO TAKE DEPOSITION 0N WRITTEN QUESTIONS, MOTION FOR PROTECTIVE ORDER AND TO QUASH THE NOTICE AND SUBPOENA — Page 4 not comply with the part of a subpoena from which protection is sought under this paragraph unless ordered to do so by the court. The party requesting the subpoena may seek such an order at any time after the motion for protection is filed. (emphasis). Tex. R. CiV. P. Rule 176.6(d) — (e). Plaintiff HEREBY INSTRUCTS AND DEMANDS THAT THE FACILITIES LISTED HEREIN not comply with the deposition notices or the subpoenas for all records, among other things until such time as a hearing is held on this motion and an appropriate order entered by the Court. Conclusion Plaintiff respectfully request this Honorable Court sustain his objections, quash the notices and subpoenas and issue a protective order as appropriate to protect the interests of Plaintiff. WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the relief requested by Plaintiff be granted for such other and further relief at law or in equity to which Plaintiff may be justly entitled. Respectfully submitted, CLARK |VON PLONSKI IANDERSON By: Jacob von Plonskz' COLLEN A. CLARK State Bar No. 04309100 JACOB L. von PLONSKI State Bar No. 24098554 R. CONNOR BARBE State Bar No. 24108598 3500 Maple Avenue, Suite 1250 Dallas, Texas 7521 9 214-780-0500 214-780-0501 Facsimile PLAINTIFF’S OBJECTIONS TO NOTICE OF INTENTION TO TAKE DEPOSITION ON WRITTEN QUESTIONS, MOTION FOR PROTECTIVE ORDER AND TO QUASH THE NOTICE AND SUBPOENA - Page 5 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served on all counsel of record on this the 18th day of October, 2021 in accordance with the TEXAS RULES OF CIVIL PROCEDURE. Randall G. Walters WALTERS, BALIDo & GRAIN, L.L.P. Meadow Park Tower, Suite 1500 10440 North Central Expressway Dallas, Texas 75231 Jacob C. Boswell HARRISON HULL & MUMM PLLC 112 West Virginia Street McKinney, Texas 75069 Wesley M. Hightower Chase Price BLAIES & HIGHTOWER, LLP 420 Throckmorton St. Suite 1200 Fort Worth, Texas 76102 /s/ Jacob von Plonski JACOB VON PLONSKI PLAINTIFF’S OBJECTIONS TO NOTICE OF INTENTION TO TAKE DEPOSITION 0N WRITTEN QUESTIONS, MOTION FOR PROTECTIVE ORDER AND TO QUASH THE NOTICE AND SUBPOENA - Page 6 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Debbie Bullard on behalf of R. Connor Barbe Bar No. 24108598 debbie@cvpalaw.com Envelope ID: 58290672 Status as of 10/19/2021 8:55 AM CST Associated Case Party: STATEFARM MUTUAL AUTOMOBILE INSURANCE COMPANY Name BarNumber Email TimestampSubmitted Status Diane TWeisman dweisman@harrisonhu||.com 10/18/2021 3:46:51 PM SENT Michael P.Gross mgross@harrisonhull.com 10/18/2021 3:46:51 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Francine Ly fly@dallascourts.org 10/18/2021 3:46:51 PM SENT Wesley Hightower whightower@bhilaw.com 10/18/2021 3:46:51 PM SENT M. ChasePrice cprice@bhilaw.com 10/18/2021 3:46:51 PM SENT Rhonda Lambert rlambert@bhi|aw.com 10/18/2021 3:46:51 PM SENT Victoria Rodriguez vrodriguez@bhi|aw.com 10/18/2021 3:46:51 PM SENT Associated Case Party: PROGRESSIVE CASUALTY INSURANCE COMPANY Name BarNumber Email TimestampSubmitted Status Randall GWalters waltersedocsnotifications@wbclawfirm.com 10/18/2021 3:46:51 PM SENT Associated Case Party: TODD OFFEN Name BarNumber Email TimestampSubmitted Status Collen AClark eservice@cvpalaw.com 10/18/2021 3:46:51 PM SENT