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ORIGINAL ®
CAUSE NO. 04-01100-M
CRAIG DYER,
Plaintiff,
vs.
DYER CUSTOM INSTALLATION, INC.
(DCI), JOSEPH GEETING,
SUSAN LAMBERT, RICHARD GEETING
and LAURI GEETING
Defendants.
PRO PLUMBING & APPLIANCE
INSTALLATION, INC. f/k/a DYER
CUSTOM INSTALLATION, INC.
Plaintiff,
vs.
CRAIG DYER, MELISA CONTRERAS,
and THE ESTATE OF LARRY DYER
Defendants.
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IN THE pisteicrcOukt © 18
298™ JUDICIAL DISTRICT
DALLAS COUNTY, TEXAS
DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR LETTER ROGATORY
TO DEPOSE OUT-OF-STATE WITNESS AND MOTION FOR PROTECTIVE ORDER
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW DYER CUSTOM INSTALLATION, INC. n/k/a Pro Plumbing &
Appliance Installation, Inc. (“DCI”), Joseph Geeting, Susan Lambert, Richard Gecting, and
Lauri Geeting (collectively referred to as “Defendants”) in the above-styled and numbered cause,
and file this their Response to Plaintiff's Motion for Letter Rogatory to Depose Out-of-State
Witness and Motion for Protective Order, and in support thereof, would respectfully show the
Court as follows:L
BACKGROUND
1.0] Plaintiff filed suit against Defendants DCI, Joseph Geeting and Susan Lambert on
or about February 11, 2004. On or about December 12, 2005, Dyer amended his petition to
include claims against Defendants Lauri Geeting and Richard Geeting. As such, Plaintiff has
had an adequate amount of time to conduct discovery in this cause. In the 4 years and 10 months
since Plaintiff filed suit, a voluminous number of documents have been produced by the
Defendants in response to Plaintiff's written discovery. Specifically, Defendants would show
that they have produced 3,025 bates-labeled documents and over ten-thousand electronic
documents responsive to Plaintiff's discovery requests. Trial in this cause is scheduled for
January 5, 2009 — less than 30 days.
1.02 On or about December 4, 2008, Plaintiff filed a Motion for Letter Rogatory to
Depose Out-of-State Witness, which included Plaintiff's Notice of Intention to Take Deposition
Upon Written Questions of Home Depot U.S.A., Inc. The deposition notice included a Duces
Tecum, which is attached hereto as “Exhibit A.” The Duces Tecum requested, among other
things, all documents in Home Depot’s possession that refer to or relate to DCI, all
communications between Home Depot and DCI, Richard Geeting and Joseph Geeting, all
contracts and amendments to contracts between Home Depot and DCI, all payments from Home
Depot to DCI and all notices or demands sent by Home Depot to DCI regarding Plaintiff. DCI’s
work for Home Depot compromises approximately 85% of DCI’s business. Moreover, Plaintiff
has known about DCI’s business relationship with Home Depot since the inception of this
lawsuit. Because of this fact, and because Plaintiff incorporated a business to compete directly
against DCI while still a part owner of DCI, a protective order was granted against Plaintiff
which prevented him from contacting or communicating with Home Depot early in this
EFEND, LETT! Te
Ni * RE: NS i
DEPOSE OUT-OF-STATE WITNESS AND MOTION FOR PROTECTIVE ORDER: page 2litigation. As such, it appears that this Notice of Intention to Take Deposition Upon Written
Questions of Home Depot U.S.A., Inc is being filed merely for the purposes of harassment.
1.03 As set forth in the objections below, the documents sought by Plaintiff are
completely irrelevant to the claims and defenses of the parties, and constitute nothing more than
a “fishing expedition” on the part of Plaintiff. Moreover, the requests in question are vague,
overly broad, unduly burdensome and lack specificity. Plaintiff has had almost five years to
request such documents, and it is now less than 30 days before tal. In fact, if Plaintiff's Motion
is granted, the documents requested may not be produced until after the trial. As such,
Defendants object to Plaintiff's untimely Motion for Letter Rogatory to Depose Out-of-State
Witness and Motion for Protective Order, and request that the Court issue a protective order in
order to limit Plaintiff's abusive and untimely discovery.
Il.
OBJECTIONS AND MOTION FOR PROTECTIVE ORDER
2.01 Defendants object to the deposition of Home Depot U.S.A., Inc. because such
deposition is not relevant and is not reasonably calculated to lead to the discovery of admissible
evidence as required under Texas Rule of Civil Procedure 192.3(a). The deposition of Home
Depot U.S.A., Inc. is a mere fishing expedition, which is not permitted by the Texas Rules of
Civil Procedure as interpreted by the Texas Supreme Court. Texaco v. Sanderson, 898 S.W. 2d,
813 (Tex. 1995); Kmart Corp. v. Sanderson, 937 S.W. 2d, 429 (Tex. 1996); Loflin v. Martin, 776
S.W.2d, 145 (Tex. 1989). Moreover, the deposition appears to have been requested for the
purpose of harassment, given DCI’s existing business relationship with Home Depot, and
Plaintiff's tortious attempts to interfere with that relationship. As such, Defendants move for a
protective order pursuant to Rule 192.6 of Texas Rules of Civil Procedure, seeking protection
from Plaintiff's abusive discovery.3.01
a.
3.02
Til.
OBJECTIONS TO DUCES TECUM
Defendants objects to Plaintiff's lengthy definitions and instructions attached to
the Duces Tecum attached hereto as “Exhibit A,” in which Plaintiff purports to require the
deponent to apply and follow such definitions and instructions in providing responses. Deponent
is only required to apply the usual and customary meaning of the words and phrases in
accordance with the instructions set forth in the Texas Rules of Civil Procedure and such
definitions are overly broad, harassing, irrelevant, and exceed the scope of permissible discovery.
Further, Defendants object to the attached Duces Tecum requests nos. | through 15 based on the
following grounds:
The requests are not relevant and arc not reasonably calculated to lead to
discovery of admissible evidence as required under Texas Rule of Civil Procedure
192.3(a). See also Axelson, Inc. v. Mcilhany, 798 S.W.2d 550, 553 (Tex. 1990);
Some of the requests arc vague and overly broad as they fail to identify the
documents sought by individual item or by category describing with reasonable
particularity as required by Texas Rule of Civil Procedure 192.3(b); the requests
are vague and ambiguous and subject to more than one interpretation and are
therefore improper. See TEX. R. Civ. P. 192;
The requests are unduly burdensome, harassing, and involve unnecessary
expense. See TEx. R. Civ. P. 176.7; Tex. R. Civ. P. 192.4(a) and 192.4(b); see
also Crown Cent. Pet. Corp. v. Garcia, 904 S.W.2d 125, 127 (Tex. 1995);
The requests are contingent in nature, asking for all documents, and it fails to
identify the documents sought by individual item or by category describing with
reasonable particularity as required by the Texas Rule of Civil Procedure; and
The information sought by Plaintiff may include proprietary, confidential
information and its disclosure would impair DCI’s proprietary information,
especially considering Plaintiff directly competes with DC] in the marketplace.
In addition, the requests are overly broad and are made for the sole purpose of
harassing DCI. In short, these requests constitute nothing more than a fishing expedition, which
is not permitted by the TEXAS RULES OF CIVIL PROCEDURE as interpreted by the Texas SupremeCourt. Texaco v. Sanderson, 898 S.W. 2d, 813 (Tex. 1995); Kmart Corp. v. Sanderson, 937
S.W. 2d, 429 (Tex. 1996); Loftin v. Martin, 776 S.W.2d, 145 (Tex. 1989). Accordingly,
Defendants object to the aforementioned Duces Tecum in its entirety, and request and seek
sanctions against Plaintiff and his counsel pursuant to Rule 215.3 of the Texas Rules of Civil
Procedure.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants requests that the Court grant
their Motion for Protective Order, sustain Defendants’ objections, and issue a protective order
preventing any further attempts by Plaintiff to seek the discovery referenced herein. In addition,
Defendants seek sanctions and their attorneys fees for having to prepare this Response and
Motion for Protective Order and attend a hearing regarding same; and for such other and further
relief, at law or equity, to which Defendants may be justly entitled.
Respectfully submitted,
Nowak & STAUCH, LLP
wy Lah SA, phot
Matthew A. Nowak
State Bar No. 00794382
Thomas R. Stauch
State Bar No. 00794687
Brandon L. Starling
State Bar No. 24047556
4144 N. Central Expressway
Suite 300
Dallas, Texas 75204
(214) 823-2006 - telephone
(214) 823-2007 - facsimile
ATTORNEYS FOR DEFENDANTSCERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was served in
accordance with TEXAS RULES OF CIVIL PROCEDURE 21 and 21a on all parties to this case
on this the pt day of December, 2008.
Hbches A phuod
Matthew A. Nowaki.
EXHIBIT “B”
DUCES TECUM
The witness shall produce the following documents and tangible things at the time of the
deposition:
1.
Documents that refer, reflect, or relate in any way to your answers to the questions
listed in Exhibit “A.” ,
2. Documents that refer, reflect, or relate in any way to Dyer Custom Installation, Inc.,
a/k/a Pro Plumbing & Appliance Installation, Inc.
3. Documents that refer, reflect, or relate in any way to services (including: installations
performed by Dyer Custom Installation, Inc. a/k/a Pro Plumbing & Appliance
Installation, Inc.) on behalf of Deponent.
4. Documents that refer, reflect, or relate to any payments made by Deponent to Dyer
Custom Installation, Inc. a/k/a Pro Plumbing & Appliance Installation, Inc.
§. Documents that refer, reflect, or relate to correspandence or communications
between Home Depot and Dyer Custom Installation, Inc. a/k/a Pro Plumbing &
Appliance Installation, Inc.
6. A copy of any and all contracts between Dyer Custom Installation, Inc. a/k/a Pro
Plumbing & Appliance Installation, Inc. and Deponent.
7. A copy of any and all amendments to any written contract between Dyer Custom
Installation, Inc. a/k/a Pro Plumbing & Appliance Installation, Inc. and Deponent.
8. Documents that reflect all charge-backs made by Deponent with respect to services
provided by Dyer Custom Installation, Inc. a/k/a Pro Plumbing & Appliance
Installation, Inc.
9. All communication between Deponent and Dyer Custom Installation, Inc. a/k/a Pro
Plumbing & Appliance installation, Inc.
10. All communication between Deponent and R. Geeting.
141. Alktcommunication between Deponent and J. Geeting.
12. Accopy of all Internal Revenue Form 1099 issued by Deponent to Dyer Custom
Installation, Inc. a/k/a Pro Plumbing & Appliance Installation, !nc.
LETTER ROGATORY Page 11
H:\Clients\DyeADCNDiscovery\LetterRogatory-HomeDepot
EXHIBIT
1 |13. A copy of all communication between Dyer Custom Installation, Inc. a/k/a Pro
Plumbing & Appliance Installation, Inc. and Deponent regarding Dyer.
14. Acopy ofall notices or demands sent by Deponent to Dyer Custom Installation, Inc.
a/k/a Pro Plumbing & Appliance Installation, Inc.
15. A copy of all files and documents maintained by Deponent of Dyer Custom
Installation, Inc. a/k/a Pro Plumbing & Appliance Installation, Inc. regarding
background checks or investigations.
LETTER ROGATORY Page 12
H:\Clients\DyeriDCNDiscovery\LetterRogatory-HomeDepot
Preview
ORIGINAL ® CAUSE NO. 04-01100-M CRAIG DYER, Plaintiff, vs. DYER CUSTOM INSTALLATION, INC. (DCI), JOSEPH GEETING, SUSAN LAMBERT, RICHARD GEETING and LAURI GEETING Defendants. PRO PLUMBING & APPLIANCE INSTALLATION, INC. f/k/a DYER CUSTOM INSTALLATION, INC. Plaintiff, vs. CRAIG DYER, MELISA CONTRERAS, and THE ESTATE OF LARRY DYER Defendants. § § § § § § § § § § § § § § § § § § § § § § § § § § a 3 ‘ IN THE pisteicrcOukt © 18 298™ JUDICIAL DISTRICT DALLAS COUNTY, TEXAS DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR LETTER ROGATORY TO DEPOSE OUT-OF-STATE WITNESS AND MOTION FOR PROTECTIVE ORDER TO THE HONORABLE JUDGE OF SAID COURT: COME NOW DYER CUSTOM INSTALLATION, INC. n/k/a Pro Plumbing & Appliance Installation, Inc. (“DCI”), Joseph Geeting, Susan Lambert, Richard Gecting, and Lauri Geeting (collectively referred to as “Defendants”) in the above-styled and numbered cause, and file this their Response to Plaintiff's Motion for Letter Rogatory to Depose Out-of-State Witness and Motion for Protective Order, and in support thereof, would respectfully show the Court as follows:L BACKGROUND 1.0] Plaintiff filed suit against Defendants DCI, Joseph Geeting and Susan Lambert on or about February 11, 2004. On or about December 12, 2005, Dyer amended his petition to include claims against Defendants Lauri Geeting and Richard Geeting. As such, Plaintiff has had an adequate amount of time to conduct discovery in this cause. In the 4 years and 10 months since Plaintiff filed suit, a voluminous number of documents have been produced by the Defendants in response to Plaintiff's written discovery. Specifically, Defendants would show that they have produced 3,025 bates-labeled documents and over ten-thousand electronic documents responsive to Plaintiff's discovery requests. Trial in this cause is scheduled for January 5, 2009 — less than 30 days. 1.02 On or about December 4, 2008, Plaintiff filed a Motion for Letter Rogatory to Depose Out-of-State Witness, which included Plaintiff's Notice of Intention to Take Deposition Upon Written Questions of Home Depot U.S.A., Inc. The deposition notice included a Duces Tecum, which is attached hereto as “Exhibit A.” The Duces Tecum requested, among other things, all documents in Home Depot’s possession that refer to or relate to DCI, all communications between Home Depot and DCI, Richard Geeting and Joseph Geeting, all contracts and amendments to contracts between Home Depot and DCI, all payments from Home Depot to DCI and all notices or demands sent by Home Depot to DCI regarding Plaintiff. DCI’s work for Home Depot compromises approximately 85% of DCI’s business. Moreover, Plaintiff has known about DCI’s business relationship with Home Depot since the inception of this lawsuit. Because of this fact, and because Plaintiff incorporated a business to compete directly against DCI while still a part owner of DCI, a protective order was granted against Plaintiff which prevented him from contacting or communicating with Home Depot early in this EFEND, LETT! Te Ni * RE: NS i DEPOSE OUT-OF-STATE WITNESS AND MOTION FOR PROTECTIVE ORDER: page 2litigation. As such, it appears that this Notice of Intention to Take Deposition Upon Written Questions of Home Depot U.S.A., Inc is being filed merely for the purposes of harassment. 1.03 As set forth in the objections below, the documents sought by Plaintiff are completely irrelevant to the claims and defenses of the parties, and constitute nothing more than a “fishing expedition” on the part of Plaintiff. Moreover, the requests in question are vague, overly broad, unduly burdensome and lack specificity. Plaintiff has had almost five years to request such documents, and it is now less than 30 days before tal. In fact, if Plaintiff's Motion is granted, the documents requested may not be produced until after the trial. As such, Defendants object to Plaintiff's untimely Motion for Letter Rogatory to Depose Out-of-State Witness and Motion for Protective Order, and request that the Court issue a protective order in order to limit Plaintiff's abusive and untimely discovery. Il. OBJECTIONS AND MOTION FOR PROTECTIVE ORDER 2.01 Defendants object to the deposition of Home Depot U.S.A., Inc. because such deposition is not relevant and is not reasonably calculated to lead to the discovery of admissible evidence as required under Texas Rule of Civil Procedure 192.3(a). The deposition of Home Depot U.S.A., Inc. is a mere fishing expedition, which is not permitted by the Texas Rules of Civil Procedure as interpreted by the Texas Supreme Court. Texaco v. Sanderson, 898 S.W. 2d, 813 (Tex. 1995); Kmart Corp. v. Sanderson, 937 S.W. 2d, 429 (Tex. 1996); Loflin v. Martin, 776 S.W.2d, 145 (Tex. 1989). Moreover, the deposition appears to have been requested for the purpose of harassment, given DCI’s existing business relationship with Home Depot, and Plaintiff's tortious attempts to interfere with that relationship. As such, Defendants move for a protective order pursuant to Rule 192.6 of Texas Rules of Civil Procedure, seeking protection from Plaintiff's abusive discovery.3.01 a. 3.02 Til. OBJECTIONS TO DUCES TECUM Defendants objects to Plaintiff's lengthy definitions and instructions attached to the Duces Tecum attached hereto as “Exhibit A,” in which Plaintiff purports to require the deponent to apply and follow such definitions and instructions in providing responses. Deponent is only required to apply the usual and customary meaning of the words and phrases in accordance with the instructions set forth in the Texas Rules of Civil Procedure and such definitions are overly broad, harassing, irrelevant, and exceed the scope of permissible discovery. Further, Defendants object to the attached Duces Tecum requests nos. | through 15 based on the following grounds: The requests are not relevant and arc not reasonably calculated to lead to discovery of admissible evidence as required under Texas Rule of Civil Procedure 192.3(a). See also Axelson, Inc. v. Mcilhany, 798 S.W.2d 550, 553 (Tex. 1990); Some of the requests arc vague and overly broad as they fail to identify the documents sought by individual item or by category describing with reasonable particularity as required by Texas Rule of Civil Procedure 192.3(b); the requests are vague and ambiguous and subject to more than one interpretation and are therefore improper. See TEX. R. Civ. P. 192; The requests are unduly burdensome, harassing, and involve unnecessary expense. See TEx. R. Civ. P. 176.7; Tex. R. Civ. P. 192.4(a) and 192.4(b); see also Crown Cent. Pet. Corp. v. Garcia, 904 S.W.2d 125, 127 (Tex. 1995); The requests are contingent in nature, asking for all documents, and it fails to identify the documents sought by individual item or by category describing with reasonable particularity as required by the Texas Rule of Civil Procedure; and The information sought by Plaintiff may include proprietary, confidential information and its disclosure would impair DCI’s proprietary information, especially considering Plaintiff directly competes with DC] in the marketplace. In addition, the requests are overly broad and are made for the sole purpose of harassing DCI. In short, these requests constitute nothing more than a fishing expedition, which is not permitted by the TEXAS RULES OF CIVIL PROCEDURE as interpreted by the Texas SupremeCourt. Texaco v. Sanderson, 898 S.W. 2d, 813 (Tex. 1995); Kmart Corp. v. Sanderson, 937 S.W. 2d, 429 (Tex. 1996); Loftin v. Martin, 776 S.W.2d, 145 (Tex. 1989). Accordingly, Defendants object to the aforementioned Duces Tecum in its entirety, and request and seek sanctions against Plaintiff and his counsel pursuant to Rule 215.3 of the Texas Rules of Civil Procedure. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendants requests that the Court grant their Motion for Protective Order, sustain Defendants’ objections, and issue a protective order preventing any further attempts by Plaintiff to seek the discovery referenced herein. In addition, Defendants seek sanctions and their attorneys fees for having to prepare this Response and Motion for Protective Order and attend a hearing regarding same; and for such other and further relief, at law or equity, to which Defendants may be justly entitled. Respectfully submitted, Nowak & STAUCH, LLP wy Lah SA, phot Matthew A. Nowak State Bar No. 00794382 Thomas R. Stauch State Bar No. 00794687 Brandon L. Starling State Bar No. 24047556 4144 N. Central Expressway Suite 300 Dallas, Texas 75204 (214) 823-2006 - telephone (214) 823-2007 - facsimile ATTORNEYS FOR DEFENDANTSCERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served in accordance with TEXAS RULES OF CIVIL PROCEDURE 21 and 21a on all parties to this case on this the pt day of December, 2008. Hbches A phuod Matthew A. Nowaki. EXHIBIT “B” DUCES TECUM The witness shall produce the following documents and tangible things at the time of the deposition: 1. Documents that refer, reflect, or relate in any way to your answers to the questions listed in Exhibit “A.” , 2. Documents that refer, reflect, or relate in any way to Dyer Custom Installation, Inc., a/k/a Pro Plumbing & Appliance Installation, Inc. 3. Documents that refer, reflect, or relate in any way to services (including: installations performed by Dyer Custom Installation, Inc. a/k/a Pro Plumbing & Appliance Installation, Inc.) on behalf of Deponent. 4. Documents that refer, reflect, or relate to any payments made by Deponent to Dyer Custom Installation, Inc. a/k/a Pro Plumbing & Appliance Installation, Inc. §. Documents that refer, reflect, or relate to correspandence or communications between Home Depot and Dyer Custom Installation, Inc. a/k/a Pro Plumbing & Appliance Installation, Inc. 6. A copy of any and all contracts between Dyer Custom Installation, Inc. a/k/a Pro Plumbing & Appliance Installation, Inc. and Deponent. 7. A copy of any and all amendments to any written contract between Dyer Custom Installation, Inc. a/k/a Pro Plumbing & Appliance Installation, Inc. and Deponent. 8. Documents that reflect all charge-backs made by Deponent with respect to services provided by Dyer Custom Installation, Inc. a/k/a Pro Plumbing & Appliance Installation, Inc. 9. All communication between Deponent and Dyer Custom Installation, Inc. a/k/a Pro Plumbing & Appliance installation, Inc. 10. All communication between Deponent and R. Geeting. 141. Alktcommunication between Deponent and J. Geeting. 12. Accopy of all Internal Revenue Form 1099 issued by Deponent to Dyer Custom Installation, Inc. a/k/a Pro Plumbing & Appliance Installation, !nc. LETTER ROGATORY Page 11 H:\Clients\DyeADCNDiscovery\LetterRogatory-HomeDepot EXHIBIT 1 |13. A copy of all communication between Dyer Custom Installation, Inc. a/k/a Pro Plumbing & Appliance Installation, Inc. and Deponent regarding Dyer. 14. Acopy ofall notices or demands sent by Deponent to Dyer Custom Installation, Inc. a/k/a Pro Plumbing & Appliance Installation, Inc. 15. A copy of all files and documents maintained by Deponent of Dyer Custom Installation, Inc. a/k/a Pro Plumbing & Appliance Installation, Inc. regarding background checks or investigations. LETTER ROGATORY Page 12 H:\Clients\DyeriDCNDiscovery\LetterRogatory-HomeDepot