Preview
FILED
DALLAS COUNTY
7/2/2018 3:10 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-18-05064
DC—18-05064
MARGO MIXON, § IN THE DISTRICT COURT
§
Plaintiff,
Plaintiff, §
§
VS.
vs. §
§
AUSTIN BRIDGE & ROAD, LP d/b/a d/b/a § DALLAS COUNTY, TEXAS
AUSTIN BRIDGE & ROAD SERVICES, §
cammwowbmwfiimwfiimwcfimcmwobmm
LP;
LP; STATE FARM MUTUAL §
AUTOMOBILE INSURANCE COMPANY; COMPANY; §
DAVID JACKSON WILBURN II, II, as
as §
Representative
Representative of of the
the Estate
Estate ofof ANASTACIO §
ROSAS;
ROSAS; and and TRP CONSTRUCTION §
GROUP, LLC §
§
Defendants.
Defendants. § 44th
44th JUDICIAL DISTRICT
PLAINTIFF'S MOTION TO T0 QUASH AMENDED NOTICE OF 0F INTENTION TO TAKE
DEPOSITION BY WRITTEN QUESTIONS OF 0F KOONS FULLER DALLAS,
ORSINGER, NELSON, DOWNING & ANDERSON, AND THE SHAPIRO LAW FIRM
AND MOTION FOR PROTECTIVE ORDER
TO THE HONORABLE JUDGE OF THIS COURT:
COMES NOW Plaintiff
Plaintiff in
in the
the above-referenced
above-referenced cause
cause and files
files this
this Motion to
t0 Quash
Amended Notice
Notice of
0f Intention
Intention to
t0 Take Deposition
Deposition by
by Written
Written Questions
Questions as
as to
to Plaintiffs
Plaintiff’s payroll
payroll
records,
records, and inin support thereof would show the
support thereof the Court
Court the
the following:
following:
1.
l. On or
or about
about June 29,29, 2018,
201 8, Plaintiff received by
Plaintiffreceived by facsimile,
facsimile, Defendant Austin
Austin Bridge
Bridge
& Road,
Road, LP d/b/a
d/b/a Austin
Austin Bridge
Bridge & Road Services,
Services, LP's
LP’s Amended Notice
Notice of
0f Intention
Intention to
to Take
Deposition
Deposition by Written Questions.
by Written Questions. Specifically, Defendant noticed
Specifically, noticed depositions seeking Plaintiffs
depositions seeking Plaintiff s
payroll
payroll records.
records. The entities
entities noticed
noticed are
are Fuller —
Koons Fuller — Dallas,
Dallas, Orsinger,
Orsinger, Nelson,
Nelson, Downing &
Anderson,
Anderson, and The Shapiro
Shapiro Law Firm.
Firm. Exhibit
Exhibit A. Because this
this motion is
is filed
filed within
within three
three
business days of
business days of the
the date
date the notices were delivered,
the notices this motion objecting
delivered, this objecting toto the
the irrelevant
irrelevant nature,
nature,
PLAINTIFF'S MOTION TO QUASH AMENDED NOTICE OF DWQ
PLAINTIFF'S DWO FORFOR PAYROLL RECORDS AND MOTION
FOR PROTECTIVE ORDER- Page Page 11
timelessness,
timelessness, and undefined
undefined scope
scope of
of the
the depositions
depositions by
by written
written questions
questions stays
stays the
the depositions
depositions
until the motion can
until the can be
be determined
determined by by the
the Court.
Court. Tex.
Tex. R.
R. Civ.
CiV. P.
P. 199.4.
199.4.
2.
2. The Amended Notices
Notices of
of Intention
Intention to
to Take Deposition
Deposition by
by Written
Writtan Questions
Questions are
are
overly
overly broad
broad and seek
seek documents that
that are
are irrelevant
irrelevant to
to the
the underlying
underlying lawsuit.
lawsuit. Accordingly,
Accordingly,
Plaintiff
Plaintiff requests
requests that
that the
the Amended Notices
Notices of0f Intention
Intention toto Take Deposition
Deposition by by Written
Written Questions
Questions
as
as to
to Koons Fuller-Dallas
Fuller—Dallas (payroll
(payroll records),
records), Orsinger,
Orsinger, Nelson,
Nelson, Downing & Anderson (payroll
(payroll
records)
records) and The Shapiro
Shapiro Law Firm (payroll
(payroll records)
records) byby quashed.
quashed.
3.
3. Defendants
Defendants are
are not
not entitled
entitled to
to forage
forage through Plaintiffs
Plaintiff’s employment records
records
simply
simply because
because she
she has
has made a a claim
claim for physical injury
for physical injury and lost
lost wages. Litigants
Litigants do
do not
not have
have aa
license
license to
to engage inin fishing
fishing expeditions
expeditions into privileged matters.
into privileged matters. In Re Jane
In Jane Doe,
Doe, 22 S.W.3d 601 601
(Tex.
(Tex. App.—Austin
App.--——Austin 2000)
2000) (relying
(relying on Coates
Coates v.
v. Whittington,
Whittington, 758 S.W.2d 749
749 (Tex.
(Tex. 1988)
1988) and
Ginsberg
Ginsberg v. v.Fifth Court of
Fifth Appeals, 686 S.W.2d 105
oprpeals, 105 (Tex.
(Tex. 1985)).
1985)).
4.
4. Plaintiff
Plaintiff asks
asks the
the Court
Court for
for aa protective
protective order
order because
because Defendant's
Defendant’s discovery
discovery
request
request is
is over
over broad.
broad. Tex.
Tex. R.
R. Civ.
CiV. P.
P. 192,
192, cmt.
cmt. 1.
1. A discovery
discovery request
request must be
be reasonably
reasonably
tailored
tailored to
to include
include only
only relevant
relevant matters.
matters. InIn re American Optical
re American Optical Corp.,
Corp. ,
988 S.W.2d 711,71 1, 713
713 (Tex.
(Tex.
1998).
1998). The Supreme Court
Court has
has identified
identified as
as overbroad
overbroad requests
requests encompassing time
time periods,
periods,
products, or
products, 0r activities.
activities. See Regarding: CSX Corp.,
In Regarding:
See In 124 S.W.3d 149,
Corp, 124 149, 153
153 (Tex.
(Tex. 2003)
2003) (request
(request
to
to identify
identify all
all safety
safety employees
employees of
of defendant
defendant over
over 30-year
30-year period
period was over
over broad);
broad); American
American
Optical, 988 S.W.2d at
Optical, at 713 (request for production
(request for production of almost every document relating
almost every to asbestos
relating to asbestos
that defendant
that defendant had everever produced
produced for years was over
for 50 years over broad);
broad); K-Mart Corp.
K—Mart Corp. v.
v.Sanderson,
Sanderson, 937
937
S.W.2d 429,431
429, 431 (Tex. 1996) (request
(Tex. 1996) (request for information about
for information criminal conduct
about criminal conduct at location for
at location for seven
seven
years was over
years over broad); Dillard Dep't Stores,
broad); DillardDep ’t
Inc. v.
Stores, Inc. Hall, 909 S.W.2d 491,492
v. Hall, 491, 492 (Tex. 1995) (request
(Tex. 1995) (request
for
for every
every similar claim from every
similar claim store was over
every store over broad).
broad). The requests in this
requests in this case
case are over broad
are over broad
PLAINTIFF‘S MOTION TO QUASH AMENDED NOTICE OF DWQ
PLAINTIFF'S DWO FOR PAYROLL RECORDS AND MOTION
FOR PROTECTIVE ORDER- Page 2 2
as
as to
t0 the
the time period and relevancy
time period relevancy to to the
the matter
matter atat hand.
hand.
WHEREFORE, PREMISES CONSIDERED, Plaintiff Plaintiff requests
requests that this
that this Motion be,be, in
in all
all
things,
things, granted.
granted. Plaintiff
Plaintiff requests
requests such
such other further relief,
other and farther relief, both
both special
special and general,
general, to
t0 which
she
she may be justly
justly entitled.
entitled.
Respectfully submitted,
Respectfully submitted,
SOMMERMAN, McCAFFITY MCCAFFITY &
QUESADA, L.L.P. L.L.P.
/s/ Jody L.
/s/Jodv Rodenberz
L. Rodenberg
Andrew B. B. Sommerman
State
State Bar No. 18842150
18842 1 50
Jody
Jody L.
L. Rodenberg
State
State Bar No.
N0. 24073133
24073 133
3811
3811 Turtle
Turtle Creek Boulevard,
Boulevard, Suite
Suite 1400
1400
Dallas,
Dallas, Texas 75219-4461
752 1 9—4461
2 1 4/720—0720 (Telephone)
214/720-0720 (Telephone)
2 1 4/720-01 84 (Facsimile)
214/720-0184 (Facsimile)
Andrew@textrial.com
Andrew@textria1.com
jrodenberg@textrial.com
irodenberg@textrial.com
ATTORNEYS FOR PLAINTIFF
PLAINTIFF'S MOTION TO QUASH AMENDED NOTICE OF DWQ FOR PAYROLL RECORDS AND MOTION
PLAINTIFF'S
FOR PROTECTIVE ORDER- Page Page 33
CERTIFICATE OF SERVICE
IIhereby
hereby certify
certify by
by my signature
signature above
above that
that aatrue
true and correct
correct copy
copy of
0f the
the foregoing
foregoing
instrument
instrument has
has this
this date
date been
been sent
sent to
t0 all
all attorneys
attorneys of record
record in
in the
the above-styled
above—styled and numbered
cause,
cause, said service being
said service being effected
effected in the following
in the following manner.
manner.
Certified Mail/Return Receipt
Certified Mail/Retum Requested
Receipt Requested
Facsimile
Facsimile
Electronic
Electronic mail
mail
E-Filing Service
E-Filing Service X
Dated:
Dated: July
July 2,2018
2, 2018
PLAINTIFF'S MOTION TO QUASH AMENDED NOTICE OF DWQ DWO FOR PAYROLL RECORDS AND MOTION
FOR PROTECTIVE ORDER-ORDER~ Page
Page 44
EXHIBIT A
06/29/2018
06/29/2018 14:39
14:39 FAX @0003/0017
Z0003/0017
Cause No.
No. DC-18-05064
MARCO MIXON § IN THE DISTRICT COURT OF 0F
§
vs.
vs. § ~
AUSTIN BRIDGE & ROAD, LP D/B/A § DALLAS COUNTY, TEXAS
AUSTIN BRIDGE & ROAD SERVICES, §
LP and STATE FARM MUTUAL §
AUTOMOBILE INSURANCE COMPANY, et et al
a] § 44TH JUDICIAL DISTRICT
AMENDED NOTICE OF INTENTION
TO TAKE DEPOSITION BY WRITTEN QUESTIONS
TO: ALL PARTIES BY AND THROUGH THEIR ATTORNEY(S) OF RECORD AS PROVIDED IN THE ATTACHED
TO:
SERVICE LIST.
LIST.
You will
will take
take notice
notice that
that twenty
twenty (20)
(20) days
days after
after the
the service
service hereof,
hereof, with
with attached
attached questions,
questions, a
a deposition
deposition by
by written
written questions
questions
‘
will
will be
be asked
asked of the custodian
ofthe custodian of
of records
records for:
for:
KOONSFULLER DALLAS-(Payroll
DALLAS—(Payroll Records)
Records)
MCKINNEY AVENUE, STE 1500,
1717 MCIUNNEY 1500, DALLAS, TX 75202
ORSINGER NELSON DOWNING & ANDERSON-(Payroll
ANDERSON-(Payroll Records)
Records)
5950 SHERRY LANE, STE 800, 800, DALLAS, TX 75225
THE SHAPIRO LAW FIRM-(Payroll Records) Records)
701
70] E.
E. 15TH STREET, STE 204, 204, PLANO, TX 75074
Such questions
questions to
to be
be answered
answered on or
or before07/19/2018, before
before 07/19/2018,before a
a Notary Public at
Notary Public at the
the instance
instance of:
of:
Written Deposition
Deposition Service,
Service, LLC
1750
1750 Valley
Valley View Lane Suite
Suite 210
Dallas,
Dallas,Texas 75234
The deposition
deposition with
with attached
attached questions
questions may be
be used
used in
in evidence
evidence upon the
the trial
trialof the
the above-styled
above-styled and numbered cause
cause
pending in
pending in the
the above com
above named court. Notice
Notice is
is further
further given
given that
that request
request is
is hereby
hereby made as
as authorized
authorized under
under Rule(s)
Rule(s) 200 &
201(b),
201(b), Texas
Texas Rules of Civil
Rules of Civil Procedure,
Procedure, to
to the taking this
the officer
officer taking deposition to
this depositionto issue
issue a
a Subpoena
Subpoena Duces Tecum and and cause
cause it
it to
td
be
be served
served on
on the
the witness
witness to
to produce
produce any
any and
and all
all records
records as
as described
described on the
the attached
attached que
Preview
FILED DALLAS COUNTY 7/2/2018 3:10 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-18-05064 DC—18-05064 MARGO MIXON, § IN THE DISTRICT COURT § Plaintiff, Plaintiff, § § VS. vs. § § AUSTIN BRIDGE & ROAD, LP d/b/a d/b/a § DALLAS COUNTY, TEXAS AUSTIN BRIDGE & ROAD SERVICES, § cammwowbmwfiimwfiimwcfimcmwobmm LP; LP; STATE FARM MUTUAL § AUTOMOBILE INSURANCE COMPANY; COMPANY; § DAVID JACKSON WILBURN II, II, as as § Representative Representative of of the the Estate Estate ofof ANASTACIO § ROSAS; ROSAS; and and TRP CONSTRUCTION § GROUP, LLC § § Defendants. Defendants. § 44th 44th JUDICIAL DISTRICT PLAINTIFF'S MOTION TO T0 QUASH AMENDED NOTICE OF 0F INTENTION TO TAKE DEPOSITION BY WRITTEN QUESTIONS OF 0F KOONS FULLER DALLAS, ORSINGER, NELSON, DOWNING & ANDERSON, AND THE SHAPIRO LAW FIRM AND MOTION FOR PROTECTIVE ORDER TO THE HONORABLE JUDGE OF THIS COURT: COMES NOW Plaintiff Plaintiff in in the the above-referenced above-referenced cause cause and files files this this Motion to t0 Quash Amended Notice Notice of 0f Intention Intention to t0 Take Deposition Deposition by by Written Written Questions Questions as as to to Plaintiffs Plaintiff’s payroll payroll records, records, and inin support thereof would show the support thereof the Court Court the the following: following: 1. l. On or or about about June 29,29, 2018, 201 8, Plaintiff received by Plaintiffreceived by facsimile, facsimile, Defendant Austin Austin Bridge Bridge & Road, Road, LP d/b/a d/b/a Austin Austin Bridge Bridge & Road Services, Services, LP's LP’s Amended Notice Notice of 0f Intention Intention to to Take Deposition Deposition by Written Questions. by Written Questions. Specifically, Defendant noticed Specifically, noticed depositions seeking Plaintiffs depositions seeking Plaintiff s payroll payroll records. records. The entities entities noticed noticed are are Fuller — Koons Fuller — Dallas, Dallas, Orsinger, Orsinger, Nelson, Nelson, Downing & Anderson, Anderson, and The Shapiro Shapiro Law Firm. Firm. Exhibit Exhibit A. Because this this motion is is filed filed within within three three business days of business days of the the date date the notices were delivered, the notices this motion objecting delivered, this objecting toto the the irrelevant irrelevant nature, nature, PLAINTIFF'S MOTION TO QUASH AMENDED NOTICE OF DWQ PLAINTIFF'S DWO FORFOR PAYROLL RECORDS AND MOTION FOR PROTECTIVE ORDER- Page Page 11 timelessness, timelessness, and undefined undefined scope scope of of the the depositions depositions by by written written questions questions stays stays the the depositions depositions until the motion can until the can be be determined determined by by the the Court. Court. Tex. Tex. R. R. Civ. CiV. P. P. 199.4. 199.4. 2. 2. The Amended Notices Notices of of Intention Intention to to Take Deposition Deposition by by Written Writtan Questions Questions are are overly overly broad broad and seek seek documents that that are are irrelevant irrelevant to to the the underlying underlying lawsuit. lawsuit. Accordingly, Accordingly, Plaintiff Plaintiff requests requests that that the the Amended Notices Notices of0f Intention Intention toto Take Deposition Deposition by by Written Written Questions Questions as as to to Koons Fuller-Dallas Fuller—Dallas (payroll (payroll records), records), Orsinger, Orsinger, Nelson, Nelson, Downing & Anderson (payroll (payroll records) records) and The Shapiro Shapiro Law Firm (payroll (payroll records) records) byby quashed. quashed. 3. 3. Defendants Defendants are are not not entitled entitled to to forage forage through Plaintiffs Plaintiff’s employment records records simply simply because because she she has has made a a claim claim for physical injury for physical injury and lost lost wages. Litigants Litigants do do not not have have aa license license to to engage inin fishing fishing expeditions expeditions into privileged matters. into privileged matters. In Re Jane In Jane Doe, Doe, 22 S.W.3d 601 601 (Tex. (Tex. App.—Austin App.--——Austin 2000) 2000) (relying (relying on Coates Coates v. v. Whittington, Whittington, 758 S.W.2d 749 749 (Tex. (Tex. 1988) 1988) and Ginsberg Ginsberg v. v.Fifth Court of Fifth Appeals, 686 S.W.2d 105 oprpeals, 105 (Tex. (Tex. 1985)). 1985)). 4. 4. Plaintiff Plaintiff asks asks the the Court Court for for aa protective protective order order because because Defendant's Defendant’s discovery discovery request request is is over over broad. broad. Tex. Tex. R. R. Civ. CiV. P. P. 192, 192, cmt. cmt. 1. 1. A discovery discovery request request must be be reasonably reasonably tailored tailored to to include include only only relevant relevant matters. matters. InIn re American Optical re American Optical Corp., Corp. , 988 S.W.2d 711,71 1, 713 713 (Tex. (Tex. 1998). 1998). The Supreme Court Court has has identified identified as as overbroad overbroad requests requests encompassing time time periods, periods, products, or products, 0r activities. activities. See Regarding: CSX Corp., In Regarding: See In 124 S.W.3d 149, Corp, 124 149, 153 153 (Tex. (Tex. 2003) 2003) (request (request to to identify identify all all safety safety employees employees of of defendant defendant over over 30-year 30-year period period was over over broad); broad); American American Optical, 988 S.W.2d at Optical, at 713 (request for production (request for production of almost every document relating almost every to asbestos relating to asbestos that defendant that defendant had everever produced produced for years was over for 50 years over broad); broad); K-Mart Corp. K—Mart Corp. v. v.Sanderson, Sanderson, 937 937 S.W.2d 429,431 429, 431 (Tex. 1996) (request (Tex. 1996) (request for information about for information criminal conduct about criminal conduct at location for at location for seven seven years was over years over broad); Dillard Dep't Stores, broad); DillardDep ’t Inc. v. Stores, Inc. Hall, 909 S.W.2d 491,492 v. Hall, 491, 492 (Tex. 1995) (request (Tex. 1995) (request for for every every similar claim from every similar claim store was over every store over broad). broad). The requests in this requests in this case case are over broad are over broad PLAINTIFF‘S MOTION TO QUASH AMENDED NOTICE OF DWQ PLAINTIFF'S DWO FOR PAYROLL RECORDS AND MOTION FOR PROTECTIVE ORDER- Page 2 2 as as to t0 the the time period and relevancy time period relevancy to to the the matter matter atat hand. hand. WHEREFORE, PREMISES CONSIDERED, Plaintiff Plaintiff requests requests that this that this Motion be,be, in in all all things, things, granted. granted. Plaintiff Plaintiff requests requests such such other further relief, other and farther relief, both both special special and general, general, to t0 which she she may be justly justly entitled. entitled. Respectfully submitted, Respectfully submitted, SOMMERMAN, McCAFFITY MCCAFFITY & QUESADA, L.L.P. L.L.P. /s/ Jody L. /s/Jodv Rodenberz L. Rodenberg Andrew B. B. Sommerman State State Bar No. 18842150 18842 1 50 Jody Jody L. L. Rodenberg State State Bar No. N0. 24073133 24073 133 3811 3811 Turtle Turtle Creek Boulevard, Boulevard, Suite Suite 1400 1400 Dallas, Dallas, Texas 75219-4461 752 1 9—4461 2 1 4/720—0720 (Telephone) 214/720-0720 (Telephone) 2 1 4/720-01 84 (Facsimile) 214/720-0184 (Facsimile) Andrew@textrial.com Andrew@textria1.com jrodenberg@textrial.com irodenberg@textrial.com ATTORNEYS FOR PLAINTIFF PLAINTIFF'S MOTION TO QUASH AMENDED NOTICE OF DWQ FOR PAYROLL RECORDS AND MOTION PLAINTIFF'S FOR PROTECTIVE ORDER- Page Page 33 CERTIFICATE OF SERVICE IIhereby hereby certify certify by by my signature signature above above that that aatrue true and correct correct copy copy of 0f the the foregoing foregoing instrument instrument has has this this date date been been sent sent to t0 all all attorneys attorneys of record record in in the the above-styled above—styled and numbered cause, cause, said service being said service being effected effected in the following in the following manner. manner. Certified Mail/Return Receipt Certified Mail/Retum Requested Receipt Requested Facsimile Facsimile Electronic Electronic mail mail E-Filing Service E-Filing Service X Dated: Dated: July July 2,2018 2, 2018 PLAINTIFF'S MOTION TO QUASH AMENDED NOTICE OF DWQ DWO FOR PAYROLL RECORDS AND MOTION FOR PROTECTIVE ORDER-ORDER~ Page Page 44 EXHIBIT A 06/29/2018 06/29/2018 14:39 14:39 FAX @0003/0017 Z0003/0017 Cause No. No. DC-18-05064 MARCO MIXON § IN THE DISTRICT COURT OF 0F § vs. vs. § ~ AUSTIN BRIDGE & ROAD, LP D/B/A § DALLAS COUNTY, TEXAS AUSTIN BRIDGE & ROAD SERVICES, § LP and STATE FARM MUTUAL § AUTOMOBILE INSURANCE COMPANY, et et al a] § 44TH JUDICIAL DISTRICT AMENDED NOTICE OF INTENTION TO TAKE DEPOSITION BY WRITTEN QUESTIONS TO: ALL PARTIES BY AND THROUGH THEIR ATTORNEY(S) OF RECORD AS PROVIDED IN THE ATTACHED TO: SERVICE LIST. LIST. You will will take take notice notice that that twenty twenty (20) (20) days days after after the the service service hereof, hereof, with with attached attached questions, questions, a a deposition deposition by by written written questions questions ‘ will will be be asked asked of the custodian ofthe custodian of of records records for: for: KOONSFULLER DALLAS-(Payroll DALLAS—(Payroll Records) Records) MCKINNEY AVENUE, STE 1500, 1717 MCIUNNEY 1500, DALLAS, TX 75202 ORSINGER NELSON DOWNING & ANDERSON-(Payroll ANDERSON-(Payroll Records) Records) 5950 SHERRY LANE, STE 800, 800, DALLAS, TX 75225 THE SHAPIRO LAW FIRM-(Payroll Records) Records) 701 70] E. E. 15TH STREET, STE 204, 204, PLANO, TX 75074 Such questions questions to to be be answered answered on or or before07/19/2018, before before 07/19/2018,before a a Notary Public at Notary Public at the the instance instance of: of: Written Deposition Deposition Service, Service, LLC 1750 1750 Valley Valley View Lane Suite Suite 210 Dallas, Dallas,Texas 75234 The deposition deposition with with attached attached questions questions may be be used used in in evidence evidence upon the the trial trialof the the above-styled above-styled and numbered cause cause pending in pending in the the above com above named court. Notice Notice is is further further given given that that request request is is hereby hereby made as as authorized authorized under under Rule(s) Rule(s) 200 & 201(b), 201(b), Texas Texas Rules of Civil Rules of Civil Procedure, Procedure, to to the taking this the officer officer taking deposition to this depositionto issue issue a a Subpoena Subpoena Duces Tecum and and cause cause it it to td be be served served on on the the witness witness to to produce produce any any and and all all records records as as described described on the the attached attached que