Preview
348-278342-15
FILED
TARRANT COUNTY
7/27/2015 4:04:18 PM
THOMAS A. WILDER
Cause No. 348-278342-15 DISTRICT CLERK
BOBBY WAYNE LINDAMOOD, JR., § IN THE DISTRICT COURT OF
AND JR’S DEMOITION & §
EXCAVATION, INC. §
§
Plaintiffs, §
§
v. § TARRANT COUNTY, TEXAS
§
KAYLA LYNN LINDAMOOD, §
MARANDA MICHELLE COLLINS, §
MICHAEL ALLEN TAYLOR, JAN §
MOGGED, JAMES RICHARD §
FLETCHER, AND PROTECT §
COLLEYVILLE PAC, §
§
Defendants. § 348TH JUDICIAL DISTRICT
DEFENDANT MICHAEL ALAN TAYLOR, JAN MOGGED, AND JAMES
RICHARD FLETCHER’S RESPONSE IN OPPOSITION TO MOTION FOR LEAVE TO
TAKE DISCOVERY UNDER TEXAS CIVIL PRACTICE AND REMEDIES CODE
CHAPTER 27
This case is a SLAPP suit – a Strategic Lawsuit Against Public Participation that Plaintiff
Bobby Lindamood (“Lindamood”) filed on behalf of himself and his eponymous construction
business on the eve of the Colleyville city council election. Lindamood filed the suit to portray
Defendant Michael Allen Taylor (“Taylor”) negatively, to punish a political rival’s wife, Jan
Mogged (“Mogged”),1 and to chill the speech of a private citizen, James Richard Fletcher
(“Fletcher”; collectively Taylor, Mogged and Fletcher are “Movants”). The Movants have filed a
Motion to Dismiss (the “MTD”) under Chapter 27 of the Texas Civil Practice and Remedies
Code because Plaintiffs’ lawsuit is “based on, relates to, or is in response to a parties exercise of
the right of free speech, right to petition, or right of association.”
1
Her husband Chuck Mogged is a Colleyville city councilman.
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Plaintiffs sued Movants for defamation, tortious interference and various other torts
because Plaintiffs claim Movants created and publicized “the Alert” – an annotated transcript of
a portion of a deposition that Bobby Wayne Lindamood, Jr. gave four years ago. Petition at ¶¶
17-26. Movants did no such things. MTD at Ex. A, B, C. The Alert was an issue during the
recent Colleyville City Council race between Lindamood and Taylor. Plaintiffs do not and
cannot deny that this case fits within the reach of the Texas Citizens Participation Act (“TCPA”),
codified as Chapter 27 of the Texas Civil Practice and Remedies Code. Therefore the Court must
apply the procedural provisions of the TCPA in this action.
Once a defendant files a motion to dismiss, the TCPA prohibits the parties from engaging
in discovery unless the plaintiff (or court) demonstrates good cause; permissible discovery is
limited to information relevant to the motion. As Movants will demonstrate below, the Plaintiffs’
Motion for Leave to Take Discovery, et al. (“Motion for Leave”) has no merit. Plaintiffs have
not demonstrated good cause, have not demonstrated relevance to the MTD, have explicitly
sought information privileged under Texas law, and have requested information extending back
more than 3.5 years for a dispute whose relevant time frame extends no more than 11 days. The
Court should deny the Motion for Leave.
I. Motion for Leave Standard.
The Legislature made a specific choice when it enacted the TCPA – it chose to force the
plaintiff initiating a TCPA-covered claim to have facts in its possession necessary to prove that
claim before it files the lawsuit. Thus, the Legislature placed the onus upon the plaintiff to prove
that it has clear and specific evidence to support its prima facie case—not to file an ill-conceived
lawsuit making broad unsupported charges and then seek the necessary evidence through the
discovery process. TEX. CIV. PRAC. & REM. CODE §§ 27.003(a), (c); 27.005(c). Simply stated,
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Movants do not have to prove any facts at this stage other than the one that all parties agree upon
– that this case falls within the TCPA.
The TCPA states that “on the filing of a motion [to dismiss] under this section, all
discovery in the legal action is suspended until the court has ruled on the motion to dismiss.”
TEX. CIV. PRAC. & REM. CODE § 27.003(c). Plaintiffs had to file a motion for leave because once
Movants filed their MTD, all discovery in this case ceased. See Better Bus. Bureau of Metro.
Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d 299, 308 (Tex. App. – Dallas 2013, no pet.) (noting
that the party seeking a statutory exemption must prove it is entitled to the exemption). The one
exception to the automatic TCPA discovery stay: on motion by a court or the claimant, a court
can lift the discovery stay “on a showing of good cause.” TEX. CIV. PRAC. & REM. CODE §
27.006(b).
But even if a plaintiff can demonstrate good cause, the Legislature strictly limited the
discovery it can obtain before a motion to dismiss hearing. The stay exception states that if the
plaintiff shows good cause for discovery, “the court may allow specified and limited discovery
relevant to the motion.” Id. (emphasis added). Discovery “relevant to the motion” does not mean
discovery into the case as a whole. Instead, “[i]t is evident that the legislature intended to
effectuate the purpose of the TCPA by ensuring that courts will dismiss SLAAP suits quickly
and without the need for prolonged and costly proceedings.” San Jacinto Title Servs. of Corpus
Christi, LLC. v. Kingsley Props., LP, 452 S.W.3d 343, 348-49 (Tex. App. – Corpus Christi 2013,
pet. denied).
As Movants will demonstrate below, the Plaintiffs cannot show good cause. In addition,
the proposed discovery Plaintiffs seek is a pure fishing expedition unrelated to the specific
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statements they claim are defamatory and unrelated to Movants’ evidence. The Court should
deny the motion for leave.
II. Plaintiffs Have Not Demonstrated Good Cause For Discovery.
A. The Good Cause Standard.
In its most basic form, “good cause” means that “the party seeking discovery has
substantial need of the materials and [ ] the party is unable without undue hardship to obtain the
substantial equivalent of the materials by other means.” State v. Lowry, 802 S.W.2d 669, 673
(Tex. 1991) (orig. proceeding); Texas Atty. Gen. Office v. Adams, 793 S.W.2d 771, 776 (Tex.
App.—Fort Worth 1990, no writ) (holding same). The TCPA does not permit a plaintiff to
establish good cause just by claiming it needs information from the defendants to defend a
motion to dismiss or by claiming it needs to engage in discovery from the defendants to disprove
the defendants’ factual assertions. In re D.C., No. 05-13-0944-cv, 2013 WL 4041507 at *1 (Tex.
App.—Dallas Aug. 9, 2013, orig. proceeding) (plaintiff’s argument that defendant “made false
statements about him” and that “he needed to have limited depositions of the defendants in order
to defend the motion to dismiss” under the TCPA was “not sufficient to show good cause under
the terms of the statute.”). Instead, the plaintiff must show that the discovery it seeks is related to
the issues before the Court. See id.; Greenspan v. State, 681 S.W.2d 939, 941 (Tex. Civ. App.—
Fort Worth 1981, writ ref’d n.r.e.) (denying discovery because “Greenspan has not demonstrated,
other than by a conclusion that he will not be able to be heard in a meaningful manner, how the
discovery of the transcript would be material to the issues involved in the district court”).
The TCPA is an anti-SLAPP statute. E.g., Cheniere Energy v. Lofti, 449 S.W.3d 210, 211
(Tex. App.—Houston [1st Dist.] 2014, no pet.); Am. Heritage Capital, LP v. Gonzalez, 436
S.W.3d 865, 868-69 (Tex.App.—Dallas 2014, no pet.). SLAPP actions are Strategic Lawsuits
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Against Public Participation—lawsuits filed to prevent or punish the defendant for exercising
First Amendment rights. The Legislature designed the TCPA to “encourage and safeguard the
constitutional rights of persons to petition, speak freely, associate freely, and otherwise
participate in government to the maximum extent permitted by law” while ensuring that persons
with meritorious claims can pursue their causes of action. TEX. CIV. PRAC. & REM. CODE §
27.002. The TCPA’s discovery stay, which remains in place until a court rules on the motion to
dismiss,2 and its requirement that the plaintiff prove its prima facie case by clear and specific
evidence, are designed to ensure plaintiffs have investigated their case beforehand and to weed
out baseless claims like the ones Plaintiffs brought.
California has the best-known anti-SLAPP statute in the country and Texas courts have
looked to California opinions to interpret TCPA provisions that are similar to one in the
California law. E.g., Miller Weisbrod, L.L.P. v. Llamas-Soforo, ___ S.W.3d ___, 2014 WL
6679122 at *7 (Tex. App.—El Paso 2014); Newspaper Holdings, Inc. v. Crazy Hotel Assisted
Living, Ltd., 416 S.W.3d 71, 88 (Tex.App.—Houston [1st Dist.] 2013, pet. denied). Like the
TCPA, the California anti-SLAPP act stays discovery pending a decision on a motion to dismiss,
and allows the court to lift the stay only upon good cause shown by the plaintiff. CAL. CODE CIV.
P. 425.16(g).3 Enacting the discovery stay and early motion to dismiss procedures in California
and Texas meant “not only did the Legislature desire early resolution to minimize the potential
costs of protracted litigation, it also sought to protect defendants from the burden of traditional
2
TEX. CIV. PRAC. & REM. CODE § 27.003(c).
3
See Exhibit A, attached, which is a true and correct copy of California Code of Civil Procedure Sections
425.10-.50. The provision states “All discovery proceedings in the action shall be stayed upon the filing
of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until
notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown,
may order that specified discovery be conducted.” The Texas discovery provision differs only because it
allows the court to order discovery on its own motion. TEX. CIV. PRAC. & REM. CODE § 27.006(b).
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discovery pending resolution of the motion.” Mattel, Inc. v. Luce, Forward, Hamilton & Scripps,
121 Cal. Rptr. 2d 794, 801 (Cal. App. 2002).4
To that end, California courts have construed good cause narrowly, especially for
plaintiffs like Lindamood who are public figures and whose ultimate burden of proof includes
demonstrating the defendant’s actual malice by clear and convincing evidence.5 Paterno v.
Superior Court, 78 Cal. Rptr. 3d 244, 250 (Cal. App. 2008).6 This is because “the point of the
anti-SLAPP statute is that you have a right not to be dragged through the courts because you
exercised your constitutional rights.” Varian Med. Sys., Inc. v. Delfino, 106 P.3d 958, 967 (Cal.
2005) (emphasis in original).7
Defamation requires proof that the defendant published false and defamatory statements.
E.g., WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). Courts have held that
plaintiffs should be able to present facts as to publication and falsity without conducting
discovery against the defendant. See id. Therefore, “if it appears from the SLAPP motion there
are significant issues as to falsity or publication—[facts] which the plaintiff should be able to
establish without discovery—the court should consider resolving those issues before permitting
what may otherwise turn out to be unnecessary, expensive and burdensome discovery
proceedings.” Garment Workers Ctr. v. Superior Court, 12 Cal. Rptr. 3d 506, 509 (Cal. App.
2004).8
Here, both falsity and publication are at issue. Neither Mogged nor Taylor nor Fletcher
published the Alert. MTD at Ex. A, B, C. The individual statements Plaintiffs claim Mogged and
4
A true and correct copy of this opinion is attached at Exhibit B to this Response.
5
Lindamood’s status as a public figure is clear and Plaintiffs do not claim he was not one. Movants
explained why Lindamood is a public figure in the MTD. See MTD at 5-8.
6
A true and correct copy of this opinion is attached at Exhibit C to this Response.
7
A true and correct copy of this opinion is attached at Exhibit D to this Response.
8
A true and correct copy of this opinion is attached at Exhibit E to this Response.
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Fletcher made are not “provably false.” And the allegedly false statements in the Alert are all
based upon Lindamood’s sworn testimony from a four-year old deposition. Under the TCPA,
Plaintiffs should have to show falsity and publication before the Court even contemplates
allowing them to engage in discovery. They did not.
California’s courts have also held that “plaintiffs who bring defamation actions subject to
the constitutional malice standard cannot show good cause for discovery on the question of
actual malice” until they make “a prima facie showing that the defendant’s published statements
contain provably false factual assertions.” Paterno, 78 Cal. Rptr. 3d at 250. To obtain discovery,
the plaintiff must demonstrate that a defendant has evidence the plaintiff needs to establish a
prima facie case and what additional facts plaintiff expects to uncover. 1-800 Contacts, Inc. v.
Steinberg, 132 Cal. Rptr. 2d 789, 809 (Cal. App. 2003).9 In the Petition, Plaintiffs alleged falsity
generally without proof of what they claim is true. In their Motion for Leave, Plaintiffs provided
no facts in support of the Petition and alleged no additional facts they expect to uncover from
Movants. Plaintiffs have no good cause for discovery.
B. Plaintiffs Seek Discovery With No Good Cause For An Improper Purpose.
Texas and California both hold that good cause for discovery under their anti-SLAPP
statutes does not exist where the plaintiff’s intent is to challenge the defendants’ honesty. Thus,
discovery is not available under the California anti-SLAPP statute “merely to ‘test’ the
opponent’s declarations.” 1-800 Contacts, 132 Cal. Rptr. 2d at 809. Similarly, obtaining
discovery to test the truth of the defendant’s sworn testimony is not good cause for lifting the
TCPA discovery ban. In re D.C., No. 05-13-0944-cv, 2013 WL 4041507 at *1 (Tex. App.—
Dallas Aug. 9, 2013, orig. proceeding).
9
A true and correct copy of this opinion is attached at Exhibit F to this Response.
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Testing the veracity of Movants’ affidavits is the sole purpose that Plaintiffs have
identified as good cause. Plaintiffs claim “if [Movants] are telling the truth in their Affidavits
and their Motion” the discovery will not be burdensome; and “[i]f the Movants are not telling the
truth, however, then these documents will disclose the prima facie validity of Plaintiffs’ causes of
action.” Motion for Leave at 2 (emphases in original); see id. at 6-7. Plaintiffs admit they seek
discovery to determine the viability of their claims by testing Movants’ honesty, which is the
exact reason that the Legislature enacted the TCPA discovery bar—to ensure that claimants in
TCPA cases actually have proof of their cause of action before the court will allow them to force
defendants to engage in discovery. Plaintiffs should have determined the merit of their claims
before filing this Action. Instead, they filed it the day before the Taylor-Lindamood election.
Plaintiffs timed this lawsuit carefully; they did not investigate its merit.
Plaintiffs predicate their Motion for Leave upon hyperbole and schoolyard bullying
taunts, neither of which shows good cause to lift the discovery ban.10 The TCPA allows Movants
to seek early dismissal and forces Plaintiffs to show cause why the Court should retain this
action on its docket. TEX. CIV. PRAC. & REM. CODE §§ 27.003(a), 27.005(c). The Petition
complains about the Alert—specifically annotations in the margin of the Alert that Plaintiffs
claim are false. E.g. Petition at ¶¶ 17-23, 56. Movants have sworn to this Court they did not
create or disseminate those annotations. MTD at Ex. A, B, C. Texas law requires Plaintiffs to
10
See Motion for Leave at 7 stating Taylor “cannot ‘hide behind’ the ‘further’ annotations that were
added to the deposition transcript that he doctored and distributed.” Few sentences in Texas pleadings
contain so much sneering fallaciousness. Taylor has the right under Texas law to demand Plaintiffs show
proof they even have viable causes of action. TEX. CIV. PRAC. & REM. CODE § 27.005(c). Taylor made no
annotations on the transcript, therefore there were no “further” annotations since the word further implies
additional to what Taylor created. And Taylor did not “doctor” the transcript. The Court can see that the
name of one person was redacted from the transcript excerpt, the remainder of the transcript is intact. All
the facts supporting this footnote are in Taylor’s Affidavit. MTD Ex. B at ¶¶ 7-20.
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demonstrate why those sworn statements are untrue without discovery against Movants designed
to test the veracity of such statements. In re D.C., supra, at *1.
The Texas Supreme Court determined that the pleading standard under the TCPA is
functionally equivalent to pleading fraud under the Federal Rules of Civil Procedure—the
plaintiff must be specific about the “pleadings and evidence that establishes the facts of when,
where, and what was said, the defamatory nature of the statements, and how they damaged the
plaintiff.” In re Lipsky, 460 S.W.3d 579, 591 (Tex. 2015); see Williams v. WMX Techs., Inc., 112
F.3d 175, 178 (5th Cir. 1997) (stating that pleading fraud with particularity requires the who,
what, when, where, and how of the alleged fraud and that plaintiff must plead those facts with
particularity before gaining access to the discovery process). By contrast, the Texas Supreme
Court held that “mere notice pleading—that is, general allegations that merely recite the
elements of a cause of action—will not suffice.” Lipsky, 460 S.W.3d at 590-91. Other than the
allegations related to its Exhibit B, the Petition contains only mere notice pleading, most of
which is made “upon information and belief.”
Nonetheless, Plaintiffs’ Motion for Leave contains only baseless accusations with no
factual support, instead of arguments regarding the merits. If the Court finds those accusations
constitute good cause for discovery, it will render the good cause standard meaningless. Movants
will examine Plaintiffs’ claims in turn:
First, Plaintiffs claim twice that the mere fact that Movants have issued sworn denials of
any connection to the Alert makes Movants’ Affidavits unreliable. See Motion for Leave at 1
(“Movants have submitted their personal Affidavits, in which they, not surprisingly, swear they
had nothing to do with anything that Plaintiffs have sued them for”); id. at 2 (claiming Plaintiffs’
discovery requests “should not be burdensome [to Movants] if they are telling the truth”;
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emphasis in original). That notion is illogical—sworn statements are made under threat of
perjury to assure the Court that such statements are true. Plaintiffs ask this Court to afford them
broad-ranging discovery based upon two premises: (1) that Movants’ sworn statements, made
under penalty of perjury, are lies and (2) that Plaintiffs’ unsworn accusations that contain no
factual support have merit. That stance is ludicrous. It is also contrary to the statute. TEX. CIV.
PRAC. & REM. CODE § 27.003(c).
Second, Plaintiffs claim that Michael Taylor has a “propensity to defame” Lindamood by
doing nothing more than using Lindamood’s own deposition testimony to demonstrate
Lindamood’s character.11 Plaintiffs provide no prima facie proof that any statement Taylor
allegedly made is untrue, which means they have no good cause for discovery. Paterno v.
Superior Court, 78 Cal. Rptr. 3d 244, 250 (Cal. App. 2008). Taylor had possession of the
deposition, excerpted one portion of it, highlighted or underlined parts of it, made no alterations
other than redacting the name of the woman discussed in the excerpt, showed that excerpt to
others, and discussed what Lindamood said in that deposition—these facts cannot defame
Lindamood nor can it show Taylor’s “propensity” to do so. See Motion for Leave at 2-3.12 Taylor
cannot have libeled or slandered Lindamood by handing out Lindamood’s own words and
11
Plaintiffs continually call the deposition testimony that Taylor excerpted and highlighted “doctored”
and include the quotation marks. The deposition transcript is an intact seven-page excerpt that deletes one
word – the name of the woman identified in its text. That is not “doctoring.” Plaintiffs are not quoting
anyone – they are using scare quotes. Plaintiffs’ own dishonest argument cannot support a claim that
Movants have been dishonest.
12
Plaintiffs complain that “Taylor ‘underlined’ portions of the deposition which are shown to be denied
by Lindamood” such as the claim that “you circulated photographs of your penis around Lindamood
Demolition Company.” Motion for Leave at 3 (emphasis in original). True – Taylor underlined a question
from the attorney cross-examining Lindamood. MTD Ex. B-1 at 2. And Taylor also underlined the
denial. Id. Thus, even if this Court became the first to find that underlining a person’s direct quote is
actionable defamation, there is no actual malice because Taylor also brought to each recipient’s attention
the fact that Lindamood denied the allegation. Plaintiffs’ reliance on Masson v. New Yorker Mag., Inc.,
501 U.S. 496, 520 (1991), and the quote they extracted from it, is misplaced. In Masson, the Court did not
find that petitioner had denied he made the statements attributed to him, the Court presumed he had
because it reviewed the case on an appeal from summary judgment.
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discussing them unless Lindamood perjured himself in the deposition.13 Plaintiffs’ own claims
show they lack good cause to engage in discovery.
Third, Plaintiffs allege that “Fletcher cannot obtain dismissal when credibility issues are
raised by his Affidavit testimony.” Motion for Leave at 5. There are no such issues. Mogged,
Fletcher and Taylor all state unequivocally that the deposition excerpt Taylor distributed on
April 29 contained no annotations. MTD at Ex. A, B, B-1, C. “Annotations” refers specifically to
the comments in the margins or super-imposed upon the text of the Lindamood deposition
excerpt. See MTD at Ex. A ¶ 4-5; Ex. B at ¶¶ 8-9, Ex. C at ¶ 4. Those comments are in the Alert,
not in the transcript Taylor highlighted, and form the crux of Plaintiffs’ claims. Compare Petition
at ¶¶ 17-23, 56, Ex. 1 with MTD Ex. B-1. The annotations are the sole source of alleged
defamation in the Alert. Petition at ¶¶ 17-23, 56. Plaintiffs’ claim that a jury is needed to resolve
conflicting evidence and assess the credibility of the witnesses is irrelevant14—there is no
conflict.
Fourth, Fletcher’s statement about Lindamood’s sexual conduct is an opinion as a matter
of law. Because the question of whether a comment is a fact or opinion is a legal issue that the
Court must decide in the first instance, it cannot support good cause for discovery of facts prior
to the Court’s ruling. Hancock v. Variyam, 400 S.W.3d 59, 66 (Tex. 2013). And Fletcher’s
opinion, regardless of whether “Fletcher intended to disparage Bobby,”15 is protected expression
13
Taylor’s reliance on the accuracy of Lindamood’s testimony demonstrates Taylor’s lack of actual
malice. Actual malice means that the defamer knew the statement was false or made the statement with
reckless disregard for truth, which means “the publisher entertained serious doubts as to the truth of his
publication.” Huckabee v. Time Warner Enter. Co., 19 S.W.3d 413, 420 (Tex. 2000) (defining “reckless
disregard”). Any Movant who presumed Lindamood told the truth while under oath at a deposition cannot
have had reckless disregard for the truth.
14
Motion for Leave at 5 (citing Levine v. Steve Scharn Custom Homes, Inc., 448 S.W.3d 637, 655 (Tex.
App. – Houston [1st Dist.] 2014, pet. denied). This citation has no relevance – Levine was not a TCPA
case; it was an appeal after a jury trial.
15
Motion for Leave at 5.
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under the First Amendment. Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990) (holding
that, for matters of public concern or about public figures, the Constitution protects “statements
that cannot reasonably [be] interpreted as stating actual facts about an individual”); Bentley v.
Bunton, 94 S.W.3d 561, 579 (Tex. 2002) (quoting Milkovich). Plaintiffs cannot show good cause
for discovery through Fletcher’s allegedly bad opinion of Lindamood.16
Fifth, Plaintiffs’ assertion that Mogged raised “credibility concerns” has no basis in fact.
Motion for Leave at 6. Mogged admitted she had seen the excerpt that Taylor highlighted and
denied seeing annotations. MTD Ex. A at ¶ 4. Mogged testified that the excerpt she saw, which
her husband obtained at the April 29 meeting, “contained no annotations in the margins or on
top of the text, and no comments such as ‘Bad Behavior’ or ‘Bad for Colleyville.’” MTD Ex. A
at ¶ 4. That description is consistent with Taylor and Fletcher’s testimony. MTD at Ex. A ¶ 4-5;
Ex. B at ¶¶ 8-9, Ex. C at ¶ 4. Mogged differentiated between the Alert (Petition at Ex. 1) and the
excerpt she saw. MTD Ex. A at ¶ 5. Her statement to Richard Newton that “information existed
about Bobby Lindamood that was bad for him”17 is not actionable defamation because it contains
no untrue statement of fact. Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002). Plaintiffs have
no good cause to lift the discovery stay as to Mogged.
Movants denied making, publishing, disseminating and causing the dissemination of the
Alert. Plaintiffs failed to investigate their claims before filing this lawsuit. Plaintiffs’ alleged
need to test Movants’ affidavits cannot serve as good cause to obtain discovery. In re D.C.,
supra, at *1. Plaintiffs’ unsubstantiated claim that “at least one of the Defendants . . . was
16
Plaintiffs do not argue that Fletcher’s statement is one of fact. They cannot because the Supreme Courts
of the United States and Texas hold it is opinion. Fletcher’s disparaging opinion of Lindamood is not
actionable.
17
MTD Ex. A, ¶ 17.
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‘responsible’ for the ‘Alert’”18 lacks the added benefit of being true. MTD at Ex. A, B, C. The
Plaintiffs’ arguments that the jury should “test the credibility” of Movants also have no merit—
the Texas Legislature has made a specific choice to prevent claimants in TCPA-covered actions
from putting defendants through the stress and costs of extensive legal proceedings until and
unless those claimants can prove they have a case.19 After Movants challenged the Petition in the
MTD, the Motion for Leave provided Plaintiffs a second opportunity to show this Court some
facts that could support their case. And again, Plaintiffs have demonstrated no facts supporting
their claims. The Court should deny the motion for leave.
III. Plaintiffs Seek Discovery that is Not Specified And Limited to The Motion.
If the Court somehow finds that Plaintiffs showed good cause for discovery, they have
not shown good cause for the discovery they seek. The TCPA allows only “specified and limited
discovery relevant to the motion” after the plaintiff has shown good cause. Tex. Civ. Prac. &
Rem. Code § 27.006(b). The MTD is directed at the Petition, which alleges defamation due to
the Alert, a statement by Mogged that has no defamatory factual assertion in it, and two
statements by Fletcher that are matters of opinion.
Plaintiffs have not proposed specific, limited discovery. They have furnished 244
requests for production that accompany 13 interrogatories that touch upon subjects unrelated to
the MTD.20 Their proposed discovery is broad, unlimited, inquires about communications
18
Motion for leave at 7 (scare quotes in original).
19
The Legislature has previously limited access to discovery for plaintiffs in response to excessive,
expensive and unmeritorious litigation. See TEX. CIV. PRAC. & REM. CODE § 74.351(s) (prohibiting
discovery until “a claimant has served the expert report and curriculum vitae” of an expert willing to
opine that defendant committed malpractice or breach of contract in health care liability claim).
20
Motion for Leave at Ex. A, B, C. Plaintiffs have 83 requests to Taylor, 80 to Fletcher and 81 to
Mogged.
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privileged as attorney-client communications,21 and seeks information dating back three and a
half years for a dispute that could only have started 11 days before they filed this lawsuit.
Compare Motion for Leave Ex, A, B, C at Instruction 13 (defining “Relevant Time Period” for
discovery requests as “from January 1, 2012 through the date of Your responses”) with MTD Ex.
B (discussing phone call from Kayla Lindamood’s attorney on April 27, 2015 and meeting at
Worthington National Bank on April 29, 2015). The MTD has nothing to do with events from
January 1, 2012 to April 26, 2015.
The MTD challenges Lindamood’s causes of action, which are based upon specific
statements that Lindamood claims are defamatory. Petition at ¶¶ 19, 26, 56. What relevance to
the MTD do “Documents and Communications during the Relevant Time Period that discuss,
relate to, or refer to the Plaintiffs in any way”22 have? None. What relevance to the MTD do
Movants’ cell phone, home phone and business phone records dating back more than three years
have to this case?23 Again, none. What relevance to the MTD do Movants’ Facebook, Instagram,
Twitter, Nextdoor.com or social media history have?24 None.25
Plaintiffs’ document requests inquiring into Movants’ communications with each other,
the Protect Colleyville PAC, and the Taylor campaign26 demonstrate that Plaintiffs are not
seeking “specified and limited discovery relevant to the motion,”27 they are seeking to use the
21
See generally, Motion for Leave Ex. A at Request 30-54; Ex. B at Request 26-50; Ex. C at Request 28-
52.
22
Motion for Leave Ex. A at Request 14; Ex. B at Request 11; Ex. C at Request 14.
23
Motion for Leave Ex. A at Request 61; Ex. B at Request 57; Ex. C at Request 59.
24
E.g., Motion for Leave, Ex. A at Request 62-81, 83 and Interrogatory No. 5; Ex. B at Request 58-77, 80
and Interrogatory No. 3; Ex. C at Request 60-79, 81 and Interrogatory No. 3.
25
Despite what Plaintiffs will say, Fletcher’s Nextdoor.com history is irrelevant to the MTD – they sued
him for a specific pair of statements and have copies of the allegedly offending posts. Pet. at Ex. 2. The
Petition shows Plaintiffs have access to Nextdoor.com, therefore they can research that information on
their own.
26
Motion for Leave Ex. A at Request 30-54; Ex. B at Request 26-50; Ex. C at Request 28-52.
27
TEX. CIV. PRAC. & REM. CODE § 27.006(b).
TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 14
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discovery process against Movants because Movants opposed Bobby Lindamood’s city council
candidacy.28 This is the exact type of abusive lawsuit that the Legislature enacted the TCPA to
stop. Granting Plaintiffs Motion for Leave would thwart the TCPA’s entire legislative purpose.
The Court should deny the Motion for Leave.
IV. Conclusion and Prayer.
Plaintiffs’ Motion for Leave asks the Court to approve Plaintiffs’ complete failure to
investigate their claims before bringing a lawsuit they filed for its political impact. The
Legislature enacted the TCPA to protect innocent defendants and to curb the specific type of
abusive litigation that Plaintiffs have undertaken against Movants. The Court should deny the
Motion for Leave.
28
Any argument that the Plaintiffs are seeking discovery in support of their conspiracy and agency
theories must also fail. Conspiracy, alter ego, agency, etc., are derivative causes of action that depend
upon Plaintiffs first establishing defamation or tortious interference. Without evidence of defamation or
tortious interference, the derivative claims must fail. See MTD at 25-26.
TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 15
348-278342-15
Dated: July 27, 2015 Respectfully submitted,
/s/ Russell J. DePalma
Alfonso Garcia Chan
Texas Bar No. 24012408
Russell J. DePalma
Texas Bar No. 00795318
SHORE CHAN DEPUMPO LLP
Bank of America Plaza
901 Main Street, Suite 3300
Dallas, Texas 75202
214-593-9110 Telephone
214-593-9111 Facsimile
John Brender
Texas Bar No. 24035038
THE BRENDER LAW FIRM
600 Eighth Avenue
Fort Worth, Texas 76104
817-334-0171 Telephone
817-334-0274 Telecopier
ATTORNEYS FOR DEFENDANTS
MICHAEL ALAN TAYLOR, JAN MOGGED
AND JAMES RICHARD FLETCHER
TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 16
348-278342-15
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served
via e-filing and email on July 27, 2015, to:
Bruce L. James
Patrick H. Rose, IV
Thomas F. Harkins, Jr.
Whitaker Chalk Swindle & Schwartz PLLC
301 Commerce Street, Suite 3500
Fort Worth, TX 76102-4186
Counsel for Plaintiffs’ Bobby Wayne Lindamood, Jr.
a
Preview
348-278342-15 FILED TARRANT COUNTY 7/27/2015 4:04:18 PM THOMAS A. WILDER Cause No. 348-278342-15 DISTRICT CLERK BOBBY WAYNE LINDAMOOD, JR., § IN THE DISTRICT COURT OF AND JR’S DEMOITION & § EXCAVATION, INC. § § Plaintiffs, § § v. § TARRANT COUNTY, TEXAS § KAYLA LYNN LINDAMOOD, § MARANDA MICHELLE COLLINS, § MICHAEL ALLEN TAYLOR, JAN § MOGGED, JAMES RICHARD § FLETCHER, AND PROTECT § COLLEYVILLE PAC, § § Defendants. § 348TH JUDICIAL DISTRICT DEFENDANT MICHAEL ALAN TAYLOR, JAN MOGGED, AND JAMES RICHARD FLETCHER’S RESPONSE IN OPPOSITION TO MOTION FOR LEAVE TO TAKE DISCOVERY UNDER TEXAS CIVIL PRACTICE AND REMEDIES CODE CHAPTER 27 This case is a SLAPP suit – a Strategic Lawsuit Against Public Participation that Plaintiff Bobby Lindamood (“Lindamood”) filed on behalf of himself and his eponymous construction business on the eve of the Colleyville city council election. Lindamood filed the suit to portray Defendant Michael Allen Taylor (“Taylor”) negatively, to punish a political rival’s wife, Jan Mogged (“Mogged”),1 and to chill the speech of a private citizen, James Richard Fletcher (“Fletcher”; collectively Taylor, Mogged and Fletcher are “Movants”). The Movants have filed a Motion to Dismiss (the “MTD”) under Chapter 27 of the Texas Civil Practice and Remedies Code because Plaintiffs’ lawsuit is “based on, relates to, or is in response to a parties exercise of the right of free speech, right to petition, or right of association.” 1 Her husband Chuck Mogged is a Colleyville city councilman. TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 1 348-278342-15 Plaintiffs sued Movants for defamation, tortious interference and various other torts because Plaintiffs claim Movants created and publicized “the Alert” – an annotated transcript of a portion of a deposition that Bobby Wayne Lindamood, Jr. gave four years ago. Petition at ¶¶ 17-26. Movants did no such things. MTD at Ex. A, B, C. The Alert was an issue during the recent Colleyville City Council race between Lindamood and Taylor. Plaintiffs do not and cannot deny that this case fits within the reach of the Texas Citizens Participation Act (“TCPA”), codified as Chapter 27 of the Texas Civil Practice and Remedies Code. Therefore the Court must apply the procedural provisions of the TCPA in this action. Once a defendant files a motion to dismiss, the TCPA prohibits the parties from engaging in discovery unless the plaintiff (or court) demonstrates good cause; permissible discovery is limited to information relevant to the motion. As Movants will demonstrate below, the Plaintiffs’ Motion for Leave to Take Discovery, et al. (“Motion for Leave”) has no merit. Plaintiffs have not demonstrated good cause, have not demonstrated relevance to the MTD, have explicitly sought information privileged under Texas law, and have requested information extending back more than 3.5 years for a dispute whose relevant time frame extends no more than 11 days. The Court should deny the Motion for Leave. I. Motion for Leave Standard. The Legislature made a specific choice when it enacted the TCPA – it chose to force the plaintiff initiating a TCPA-covered claim to have facts in its possession necessary to prove that claim before it files the lawsuit. Thus, the Legislature placed the onus upon the plaintiff to prove that it has clear and specific evidence to support its prima facie case—not to file an ill-conceived lawsuit making broad unsupported charges and then seek the necessary evidence through the discovery process. TEX. CIV. PRAC. & REM. CODE §§ 27.003(a), (c); 27.005(c). Simply stated, TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 2 348-278342-15 Movants do not have to prove any facts at this stage other than the one that all parties agree upon – that this case falls within the TCPA. The TCPA states that “on the filing of a motion [to dismiss] under this section, all discovery in the legal action is suspended until the court has ruled on the motion to dismiss.” TEX. CIV. PRAC. & REM. CODE § 27.003(c). Plaintiffs had to file a motion for leave because once Movants filed their MTD, all discovery in this case ceased. See Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d 299, 308 (Tex. App. – Dallas 2013, no pet.) (noting that the party seeking a statutory exemption must prove it is entitled to the exemption). The one exception to the automatic TCPA discovery stay: on motion by a court or the claimant, a court can lift the discovery stay “on a showing of good cause.” TEX. CIV. PRAC. & REM. CODE § 27.006(b). But even if a plaintiff can demonstrate good cause, the Legislature strictly limited the discovery it can obtain before a motion to dismiss hearing. The stay exception states that if the plaintiff shows good cause for discovery, “the court may allow specified and limited discovery relevant to the motion.” Id. (emphasis added). Discovery “relevant to the motion” does not mean discovery into the case as a whole. Instead, “[i]t is evident that the legislature intended to effectuate the purpose of the TCPA by ensuring that courts will dismiss SLAAP suits quickly and without the need for prolonged and costly proceedings.” San Jacinto Title Servs. of Corpus Christi, LLC. v. Kingsley Props., LP, 452 S.W.3d 343, 348-49 (Tex. App. – Corpus Christi 2013, pet. denied). As Movants will demonstrate below, the Plaintiffs cannot show good cause. In addition, the proposed discovery Plaintiffs seek is a pure fishing expedition unrelated to the specific TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 3 348-278342-15 statements they claim are defamatory and unrelated to Movants’ evidence. The Court should deny the motion for leave. II. Plaintiffs Have Not Demonstrated Good Cause For Discovery. A. The Good Cause Standard. In its most basic form, “good cause” means that “the party seeking discovery has substantial need of the materials and [ ] the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” State v. Lowry, 802 S.W.2d 669, 673 (Tex. 1991) (orig. proceeding); Texas Atty. Gen. Office v. Adams, 793 S.W.2d 771, 776 (Tex. App.—Fort Worth 1990, no writ) (holding same). The TCPA does not permit a plaintiff to establish good cause just by claiming it needs information from the defendants to defend a motion to dismiss or by claiming it needs to engage in discovery from the defendants to disprove the defendants’ factual assertions. In re D.C., No. 05-13-0944-cv, 2013 WL 4041507 at *1 (Tex. App.—Dallas Aug. 9, 2013, orig. proceeding) (plaintiff’s argument that defendant “made false statements about him” and that “he needed to have limited depositions of the defendants in order to defend the motion to dismiss” under the TCPA was “not sufficient to show good cause under the terms of the statute.”). Instead, the plaintiff must show that the discovery it seeks is related to the issues before the Court. See id.; Greenspan v. State, 681 S.W.2d 939, 941 (Tex. Civ. App.— Fort Worth 1981, writ ref’d n.r.e.) (denying discovery because “Greenspan has not demonstrated, other than by a conclusion that he will not be able to be heard in a meaningful manner, how the discovery of the transcript would be material to the issues involved in the district court”). The TCPA is an anti-SLAPP statute. E.g., Cheniere Energy v. Lofti, 449 S.W.3d 210, 211 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 868-69 (Tex.App.—Dallas 2014, no pet.). SLAPP actions are Strategic Lawsuits TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 4 348-278342-15 Against Public Participation—lawsuits filed to prevent or punish the defendant for exercising First Amendment rights. The Legislature designed the TCPA to “encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law” while ensuring that persons with meritorious claims can pursue their causes of action. TEX. CIV. PRAC. & REM. CODE § 27.002. The TCPA’s discovery stay, which remains in place until a court rules on the motion to dismiss,2 and its requirement that the plaintiff prove its prima facie case by clear and specific evidence, are designed to ensure plaintiffs have investigated their case beforehand and to weed out baseless claims like the ones Plaintiffs brought. California has the best-known anti-SLAPP statute in the country and Texas courts have looked to California opinions to interpret TCPA provisions that are similar to one in the California law. E.g., Miller Weisbrod, L.L.P. v. Llamas-Soforo, ___ S.W.3d ___, 2014 WL 6679122 at *7 (Tex. App.—El Paso 2014); Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 88 (Tex.App.—Houston [1st Dist.] 2013, pet. denied). Like the TCPA, the California anti-SLAPP act stays discovery pending a decision on a motion to dismiss, and allows the court to lift the stay only upon good cause shown by the plaintiff. CAL. CODE CIV. P. 425.16(g).3 Enacting the discovery stay and early motion to dismiss procedures in California and Texas meant “not only did the Legislature desire early resolution to minimize the potential costs of protracted litigation, it also sought to protect defendants from the burden of traditional 2 TEX. CIV. PRAC. & REM. CODE § 27.003(c). 3 See Exhibit A, attached, which is a true and correct copy of California Code of Civil Procedure Sections 425.10-.50. The provision states “All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted.” The Texas discovery provision differs only because it allows the court to order discovery on its own motion. TEX. CIV. PRAC. & REM. CODE § 27.006(b). TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 5 348-278342-15 discovery pending resolution of the motion.” Mattel, Inc. v. Luce, Forward, Hamilton & Scripps, 121 Cal. Rptr. 2d 794, 801 (Cal. App. 2002).4 To that end, California courts have construed good cause narrowly, especially for plaintiffs like Lindamood who are public figures and whose ultimate burden of proof includes demonstrating the defendant’s actual malice by clear and convincing evidence.5 Paterno v. Superior Court, 78 Cal. Rptr. 3d 244, 250 (Cal. App. 2008).6 This is because “the point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.” Varian Med. Sys., Inc. v. Delfino, 106 P.3d 958, 967 (Cal. 2005) (emphasis in original).7 Defamation requires proof that the defendant published false and defamatory statements. E.g., WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). Courts have held that plaintiffs should be able to present facts as to publication and falsity without conducting discovery against the defendant. See id. Therefore, “if it appears from the SLAPP motion there are significant issues as to falsity or publication—[facts] which the plaintiff should be able to establish without discovery—the court should consider resolving those issues before permitting what may otherwise turn out to be unnecessary, expensive and burdensome discovery proceedings.” Garment Workers Ctr. v. Superior Court, 12 Cal. Rptr. 3d 506, 509 (Cal. App. 2004).8 Here, both falsity and publication are at issue. Neither Mogged nor Taylor nor Fletcher published the Alert. MTD at Ex. A, B, C. The individual statements Plaintiffs claim Mogged and 4 A true and correct copy of this opinion is attached at Exhibit B to this Response. 5 Lindamood’s status as a public figure is clear and Plaintiffs do not claim he was not one. Movants explained why Lindamood is a public figure in the MTD. See MTD at 5-8. 6 A true and correct copy of this opinion is attached at Exhibit C to this Response. 7 A true and correct copy of this opinion is attached at Exhibit D to this Response. 8 A true and correct copy of this opinion is attached at Exhibit E to this Response. TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 6 348-278342-15 Fletcher made are not “provably false.” And the allegedly false statements in the Alert are all based upon Lindamood’s sworn testimony from a four-year old deposition. Under the TCPA, Plaintiffs should have to show falsity and publication before the Court even contemplates allowing them to engage in discovery. They did not. California’s courts have also held that “plaintiffs who bring defamation actions subject to the constitutional malice standard cannot show good cause for discovery on the question of actual malice” until they make “a prima facie showing that the defendant’s published statements contain provably false factual assertions.” Paterno, 78 Cal. Rptr. 3d at 250. To obtain discovery, the plaintiff must demonstrate that a defendant has evidence the plaintiff needs to establish a prima facie case and what additional facts plaintiff expects to uncover. 1-800 Contacts, Inc. v. Steinberg, 132 Cal. Rptr. 2d 789, 809 (Cal. App. 2003).9 In the Petition, Plaintiffs alleged falsity generally without proof of what they claim is true. In their Motion for Leave, Plaintiffs provided no facts in support of the Petition and alleged no additional facts they expect to uncover from Movants. Plaintiffs have no good cause for discovery. B. Plaintiffs Seek Discovery With No Good Cause For An Improper Purpose. Texas and California both hold that good cause for discovery under their anti-SLAPP statutes does not exist where the plaintiff’s intent is to challenge the defendants’ honesty. Thus, discovery is not available under the California anti-SLAPP statute “merely to ‘test’ the opponent’s declarations.” 1-800 Contacts, 132 Cal. Rptr. 2d at 809. Similarly, obtaining discovery to test the truth of the defendant’s sworn testimony is not good cause for lifting the TCPA discovery ban. In re D.C., No. 05-13-0944-cv, 2013 WL 4041507 at *1 (Tex. App.— Dallas Aug. 9, 2013, orig. proceeding). 9 A true and correct copy of this opinion is attached at Exhibit F to this Response. TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 7 348-278342-15 Testing the veracity of Movants’ affidavits is the sole purpose that Plaintiffs have identified as good cause. Plaintiffs claim “if [Movants] are telling the truth in their Affidavits and their Motion” the discovery will not be burdensome; and “[i]f the Movants are not telling the truth, however, then these documents will disclose the prima facie validity of Plaintiffs’ causes of action.” Motion for Leave at 2 (emphases in original); see id. at 6-7. Plaintiffs admit they seek discovery to determine the viability of their claims by testing Movants’ honesty, which is the exact reason that the Legislature enacted the TCPA discovery bar—to ensure that claimants in TCPA cases actually have proof of their cause of action before the court will allow them to force defendants to engage in discovery. Plaintiffs should have determined the merit of their claims before filing this Action. Instead, they filed it the day before the Taylor-Lindamood election. Plaintiffs timed this lawsuit carefully; they did not investigate its merit. Plaintiffs predicate their Motion for Leave upon hyperbole and schoolyard bullying taunts, neither of which shows good cause to lift the discovery ban.10 The TCPA allows Movants to seek early dismissal and forces Plaintiffs to show cause why the Court should retain this action on its docket. TEX. CIV. PRAC. & REM. CODE §§ 27.003(a), 27.005(c). The Petition complains about the Alert—specifically annotations in the margin of the Alert that Plaintiffs claim are false. E.g. Petition at ¶¶ 17-23, 56. Movants have sworn to this Court they did not create or disseminate those annotations. MTD at Ex. A, B, C. Texas law requires Plaintiffs to 10 See Motion for Leave at 7 stating Taylor “cannot ‘hide behind’ the ‘further’ annotations that were added to the deposition transcript that he doctored and distributed.” Few sentences in Texas pleadings contain so much sneering fallaciousness. Taylor has the right under Texas law to demand Plaintiffs show proof they even have viable causes of action. TEX. CIV. PRAC. & REM. CODE § 27.005(c). Taylor made no annotations on the transcript, therefore there were no “further” annotations since the word further implies additional to what Taylor created. And Taylor did not “doctor” the transcript. The Court can see that the name of one person was redacted from the transcript excerpt, the remainder of the transcript is intact. All the facts supporting this footnote are in Taylor’s Affidavit. MTD Ex. B at ¶¶ 7-20. TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 8 348-278342-15 demonstrate why those sworn statements are untrue without discovery against Movants designed to test the veracity of such statements. In re D.C., supra, at *1. The Texas Supreme Court determined that the pleading standard under the TCPA is functionally equivalent to pleading fraud under the Federal Rules of Civil Procedure—the plaintiff must be specific about the “pleadings and evidence that establishes the facts of when, where, and what was said, the defamatory nature of the statements, and how they damaged the plaintiff.” In re Lipsky, 460 S.W.3d 579, 591 (Tex. 2015); see Williams v. WMX Techs., Inc., 112 F.3d 175, 178 (5th Cir. 1997) (stating that pleading fraud with particularity requires the who, what, when, where, and how of the alleged fraud and that plaintiff must plead those facts with particularity before gaining access to the discovery process). By contrast, the Texas Supreme Court held that “mere notice pleading—that is, general allegations that merely recite the elements of a cause of action—will not suffice.” Lipsky, 460 S.W.3d at 590-91. Other than the allegations related to its Exhibit B, the Petition contains only mere notice pleading, most of which is made “upon information and belief.” Nonetheless, Plaintiffs’ Motion for Leave contains only baseless accusations with no factual support, instead of arguments regarding the merits. If the Court finds those accusations constitute good cause for discovery, it will render the good cause standard meaningless. Movants will examine Plaintiffs’ claims in turn: First, Plaintiffs claim twice that the mere fact that Movants have issued sworn denials of any connection to the Alert makes Movants’ Affidavits unreliable. See Motion for Leave at 1 (“Movants have submitted their personal Affidavits, in which they, not surprisingly, swear they had nothing to do with anything that Plaintiffs have sued them for”); id. at 2 (claiming Plaintiffs’ discovery requests “should not be burdensome [to Movants] if they are telling the truth”; TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 9 348-278342-15 emphasis in original). That notion is illogical—sworn statements are made under threat of perjury to assure the Court that such statements are true. Plaintiffs ask this Court to afford them broad-ranging discovery based upon two premises: (1) that Movants’ sworn statements, made under penalty of perjury, are lies and (2) that Plaintiffs’ unsworn accusations that contain no factual support have merit. That stance is ludicrous. It is also contrary to the statute. TEX. CIV. PRAC. & REM. CODE § 27.003(c). Second, Plaintiffs claim that Michael Taylor has a “propensity to defame” Lindamood by doing nothing more than using Lindamood’s own deposition testimony to demonstrate Lindamood’s character.11 Plaintiffs provide no prima facie proof that any statement Taylor allegedly made is untrue, which means they have no good cause for discovery. Paterno v. Superior Court, 78 Cal. Rptr. 3d 244, 250 (Cal. App. 2008). Taylor had possession of the deposition, excerpted one portion of it, highlighted or underlined parts of it, made no alterations other than redacting the name of the woman discussed in the excerpt, showed that excerpt to others, and discussed what Lindamood said in that deposition—these facts cannot defame Lindamood nor can it show Taylor’s “propensity” to do so. See Motion for Leave at 2-3.12 Taylor cannot have libeled or slandered Lindamood by handing out Lindamood’s own words and 11 Plaintiffs continually call the deposition testimony that Taylor excerpted and highlighted “doctored” and include the quotation marks. The deposition transcript is an intact seven-page excerpt that deletes one word – the name of the woman identified in its text. That is not “doctoring.” Plaintiffs are not quoting anyone – they are using scare quotes. Plaintiffs’ own dishonest argument cannot support a claim that Movants have been dishonest. 12 Plaintiffs complain that “Taylor ‘underlined’ portions of the deposition which are shown to be denied by Lindamood” such as the claim that “you circulated photographs of your penis around Lindamood Demolition Company.” Motion for Leave at 3 (emphasis in original). True – Taylor underlined a question from the attorney cross-examining Lindamood. MTD Ex. B-1 at 2. And Taylor also underlined the denial. Id. Thus, even if this Court became the first to find that underlining a person’s direct quote is actionable defamation, there is no actual malice because Taylor also brought to each recipient’s attention the fact that Lindamood denied the allegation. Plaintiffs’ reliance on Masson v. New Yorker Mag., Inc., 501 U.S. 496, 520 (1991), and the quote they extracted from it, is misplaced. In Masson, the Court did not find that petitioner had denied he made the statements attributed to him, the Court presumed he had because it reviewed the case on an appeal from summary judgment. TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 10 348-278342-15 discussing them unless Lindamood perjured himself in the deposition.13 Plaintiffs’ own claims show they lack good cause to engage in discovery. Third, Plaintiffs allege that “Fletcher cannot obtain dismissal when credibility issues are raised by his Affidavit testimony.” Motion for Leave at 5. There are no such issues. Mogged, Fletcher and Taylor all state unequivocally that the deposition excerpt Taylor distributed on April 29 contained no annotations. MTD at Ex. A, B, B-1, C. “Annotations” refers specifically to the comments in the margins or super-imposed upon the text of the Lindamood deposition excerpt. See MTD at Ex. A ¶ 4-5; Ex. B at ¶¶ 8-9, Ex. C at ¶ 4. Those comments are in the Alert, not in the transcript Taylor highlighted, and form the crux of Plaintiffs’ claims. Compare Petition at ¶¶ 17-23, 56, Ex. 1 with MTD Ex. B-1. The annotations are the sole source of alleged defamation in the Alert. Petition at ¶¶ 17-23, 56. Plaintiffs’ claim that a jury is needed to resolve conflicting evidence and assess the credibility of the witnesses is irrelevant14—there is no conflict. Fourth, Fletcher’s statement about Lindamood’s sexual conduct is an opinion as a matter of law. Because the question of whether a comment is a fact or opinion is a legal issue that the Court must decide in the first instance, it cannot support good cause for discovery of facts prior to the Court’s ruling. Hancock v. Variyam, 400 S.W.3d 59, 66 (Tex. 2013). And Fletcher’s opinion, regardless of whether “Fletcher intended to disparage Bobby,”15 is protected expression 13 Taylor’s reliance on the accuracy of Lindamood’s testimony demonstrates Taylor’s lack of actual malice. Actual malice means that the defamer knew the statement was false or made the statement with reckless disregard for truth, which means “the publisher entertained serious doubts as to the truth of his publication.” Huckabee v. Time Warner Enter. Co., 19 S.W.3d 413, 420 (Tex. 2000) (defining “reckless disregard”). Any Movant who presumed Lindamood told the truth while under oath at a deposition cannot have had reckless disregard for the truth. 14 Motion for Leave at 5 (citing Levine v. Steve Scharn Custom Homes, Inc., 448 S.W.3d 637, 655 (Tex. App. – Houston [1st Dist.] 2014, pet. denied). This citation has no relevance – Levine was not a TCPA case; it was an appeal after a jury trial. 15 Motion for Leave at 5. TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 11 348-278342-15 under the First Amendment. Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990) (holding that, for matters of public concern or about public figures, the Constitution protects “statements that cannot reasonably [be] interpreted as stating actual facts about an individual”); Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002) (quoting Milkovich). Plaintiffs cannot show good cause for discovery through Fletcher’s allegedly bad opinion of Lindamood.16 Fifth, Plaintiffs’ assertion that Mogged raised “credibility concerns” has no basis in fact. Motion for Leave at 6. Mogged admitted she had seen the excerpt that Taylor highlighted and denied seeing annotations. MTD Ex. A at ¶ 4. Mogged testified that the excerpt she saw, which her husband obtained at the April 29 meeting, “contained no annotations in the margins or on top of the text, and no comments such as ‘Bad Behavior’ or ‘Bad for Colleyville.’” MTD Ex. A at ¶ 4. That description is consistent with Taylor and Fletcher’s testimony. MTD at Ex. A ¶ 4-5; Ex. B at ¶¶ 8-9, Ex. C at ¶ 4. Mogged differentiated between the Alert (Petition at Ex. 1) and the excerpt she saw. MTD Ex. A at ¶ 5. Her statement to Richard Newton that “information existed about Bobby Lindamood that was bad for him”17 is not actionable defamation because it contains no untrue statement of fact. Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002). Plaintiffs have no good cause to lift the discovery stay as to Mogged. Movants denied making, publishing, disseminating and causing the dissemination of the Alert. Plaintiffs failed to investigate their claims before filing this lawsuit. Plaintiffs’ alleged need to test Movants’ affidavits cannot serve as good cause to obtain discovery. In re D.C., supra, at *1. Plaintiffs’ unsubstantiated claim that “at least one of the Defendants . . . was 16 Plaintiffs do not argue that Fletcher’s statement is one of fact. They cannot because the Supreme Courts of the United States and Texas hold it is opinion. Fletcher’s disparaging opinion of Lindamood is not actionable. 17 MTD Ex. A, ¶ 17. TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 12 348-278342-15 ‘responsible’ for the ‘Alert’”18 lacks the added benefit of being true. MTD at Ex. A, B, C. The Plaintiffs’ arguments that the jury should “test the credibility” of Movants also have no merit— the Texas Legislature has made a specific choice to prevent claimants in TCPA-covered actions from putting defendants through the stress and costs of extensive legal proceedings until and unless those claimants can prove they have a case.19 After Movants challenged the Petition in the MTD, the Motion for Leave provided Plaintiffs a second opportunity to show this Court some facts that could support their case. And again, Plaintiffs have demonstrated no facts supporting their claims. The Court should deny the motion for leave. III. Plaintiffs Seek Discovery that is Not Specified And Limited to The Motion. If the Court somehow finds that Plaintiffs showed good cause for discovery, they have not shown good cause for the discovery they seek. The TCPA allows only “specified and limited discovery relevant to the motion” after the plaintiff has shown good cause. Tex. Civ. Prac. & Rem. Code § 27.006(b). The MTD is directed at the Petition, which alleges defamation due to the Alert, a statement by Mogged that has no defamatory factual assertion in it, and two statements by Fletcher that are matters of opinion. Plaintiffs have not proposed specific, limited discovery. They have furnished 244 requests for production that accompany 13 interrogatories that touch upon subjects unrelated to the MTD.20 Their proposed discovery is broad, unlimited, inquires about communications 18 Motion for leave at 7 (scare quotes in original). 19 The Legislature has previously limited access to discovery for plaintiffs in response to excessive, expensive and unmeritorious litigation. See TEX. CIV. PRAC. & REM. CODE § 74.351(s) (prohibiting discovery until “a claimant has served the expert report and curriculum vitae” of an expert willing to opine that defendant committed malpractice or breach of contract in health care liability claim). 20 Motion for Leave at Ex. A, B, C. Plaintiffs have 83 requests to Taylor, 80 to Fletcher and 81 to Mogged. TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 13 348-278342-15 privileged as attorney-client communications,21 and seeks information dating back three and a half years for a dispute that could only have started 11 days before they filed this lawsuit. Compare Motion for Leave Ex, A, B, C at Instruction 13 (defining “Relevant Time Period” for discovery requests as “from January 1, 2012 through the date of Your responses”) with MTD Ex. B (discussing phone call from Kayla Lindamood’s attorney on April 27, 2015 and meeting at Worthington National Bank on April 29, 2015). The MTD has nothing to do with events from January 1, 2012 to April 26, 2015. The MTD challenges Lindamood’s causes of action, which are based upon specific statements that Lindamood claims are defamatory. Petition at ¶¶ 19, 26, 56. What relevance to the MTD do “Documents and Communications during the Relevant Time Period that discuss, relate to, or refer to the Plaintiffs in any way”22 have? None. What relevance to the MTD do Movants’ cell phone, home phone and business phone records dating back more than three years have to this case?23 Again, none. What relevance to the MTD do Movants’ Facebook, Instagram, Twitter, Nextdoor.com or social media history have?24 None.25 Plaintiffs’ document requests inquiring into Movants’ communications with each other, the Protect Colleyville PAC, and the Taylor campaign26 demonstrate that Plaintiffs are not seeking “specified and limited discovery relevant to the motion,”27 they are seeking to use the 21 See generally, Motion for Leave Ex. A at Request 30-54; Ex. B at Request 26-50; Ex. C at Request 28- 52. 22 Motion for Leave Ex. A at Request 14; Ex. B at Request 11; Ex. C at Request 14. 23 Motion for Leave Ex. A at Request 61; Ex. B at Request 57; Ex. C at Request 59. 24 E.g., Motion for Leave, Ex. A at Request 62-81, 83 and Interrogatory No. 5; Ex. B at Request 58-77, 80 and Interrogatory No. 3; Ex. C at Request 60-79, 81 and Interrogatory No. 3. 25 Despite what Plaintiffs will say, Fletcher’s Nextdoor.com history is irrelevant to the MTD – they sued him for a specific pair of statements and have copies of the allegedly offending posts. Pet. at Ex. 2. The Petition shows Plaintiffs have access to Nextdoor.com, therefore they can research that information on their own. 26 Motion for Leave Ex. A at Request 30-54; Ex. B at Request 26-50; Ex. C at Request 28-52. 27 TEX. CIV. PRAC. & REM. CODE § 27.006(b). TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 14 348-278342-15 discovery process against Movants because Movants opposed Bobby Lindamood’s city council candidacy.28 This is the exact type of abusive lawsuit that the Legislature enacted the TCPA to stop. Granting Plaintiffs Motion for Leave would thwart the TCPA’s entire legislative purpose. The Court should deny the Motion for Leave. IV. Conclusion and Prayer. Plaintiffs’ Motion for Leave asks the Court to approve Plaintiffs’ complete failure to investigate their claims before bringing a lawsuit they filed for its political impact. The Legislature enacted the TCPA to protect innocent defendants and to curb the specific type of abusive litigation that Plaintiffs have undertaken against Movants. The Court should deny the Motion for Leave. 28 Any argument that the Plaintiffs are seeking discovery in support of their conspiracy and agency theories must also fail. Conspiracy, alter ego, agency, etc., are derivative causes of action that depend upon Plaintiffs first establishing defamation or tortious interference. Without evidence of defamation or tortious interference, the derivative claims must fail. See MTD at 25-26. TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 15 348-278342-15 Dated: July 27, 2015 Respectfully submitted, /s/ Russell J. DePalma Alfonso Garcia Chan Texas Bar No. 24012408 Russell J. DePalma Texas Bar No. 00795318 SHORE CHAN DEPUMPO LLP Bank of America Plaza 901 Main Street, Suite 3300 Dallas, Texas 75202 214-593-9110 Telephone 214-593-9111 Facsimile John Brender Texas Bar No. 24035038 THE BRENDER LAW FIRM 600 Eighth Avenue Fort Worth, Texas 76104 817-334-0171 Telephone 817-334-0274 Telecopier ATTORNEYS FOR DEFENDANTS MICHAEL ALAN TAYLOR, JAN MOGGED AND JAMES RICHARD FLETCHER TAYLOR, MOGGED AND FLETCHER’S RESPONSE TO MOTION FOR LEAVE TO TAKE DISCOVERY - PAGE 16 348-278342-15 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been served via e-filing and email on July 27, 2015, to: Bruce L. James Patrick H. Rose, IV Thomas F. Harkins, Jr. Whitaker Chalk Swindle & Schwartz PLLC 301 Commerce Street, Suite 3500 Fort Worth, TX 76102-4186 Counsel for Plaintiffs’ Bobby Wayne Lindamood, Jr. a