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FILED
DALLAS COUNTY
7/20/2018 9:32 AM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-18-05560
MARY KAY INC., § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § DALLAS COUNTY, TEXAS
§
xxxxx xxxxx xxxxxxx, §
§
Defendant. § 116th JUDICIAL DISTRICT
MARY KAY INC.’S RESPONSE TO DEFENDANT’S OBJECTION TO THIRD PARTY
DISCOVERY SUBPOENAS DUCES TECUM AND MOTION TO QUASH
Plaintiff Mary Kay (“Mary Kay”) files this Response to Defendant’s Objection to Third
Party Discovery Subpoenas Duces Tecum and Motion to Quash and, in support thereof,
respectfully shows the Court as follows:
I. INTRODUCTION AND FACTUAL BACKGROUND
Mary Kay asks this Court to deny xxxxxxx’ (“Defendant”) Motion to Quash (“Motion”),
because the information sought by these non-party subpoenas is directly relevant to both Mary
Kay’s affirmative claims against Defendant and Defendant’s counterclaim against Mary Kay. In
this lawsuit, Mary Kay asserts that Defendant breached her agreements with the Company by, inter
alia, improperly soliciting and pitching products and services to Mary Kay’s independent sales
force through the inappropriate use of distribution and mailing lists (and otherwise).1 Defendant
denies these allegations and appears to claim that Mary Kay breached these same agreements, inter
alia, by withholding certain FSP payments when no such solicitation or promotion occurred.2 The
1
See, e.g., Mary Kay’s Am. Verified Original Pet. at ¶¶ 29-30.
2
See, e.g., Def.’s Original Countercl. at ¶¶ 28-37.
MARY KAY INC.’S RESPONSE TO DEFENDANT’S OBJECTION
TO THIRD PARTY DISCOVERY SUBPOENAS DUCES TECUM AND MOTION TO QUASH PAGE 1
third-party discovery at issue strikes at the heart of these allegations. Specifically, the subpoenas
seek, among others, the following documents:3
• Documents sufficient to identify recipients of the improper solicitations and
promotional materials sent by, and through, these non-parties on Defendants’ behalf.
• Documents sufficient to identify the full range and content of the improper solicitations
and promotional materials sent by, and through, these non-parties on Defendant’s
behalf.
• Documents and communications between Defendant and these non-parties (and others)
that relate to efforts by Defendant to recruit Mary Kay’s independent sales force to
other direct-sales companies.
• Documents and communications between Defendant and these non-parties (and others)
that relate to efforts by Defendant to promote non-Mary Kay products and services to
Mary Kay’s independent sales force.
• Documents relating to Defendant’s use of mailing lists, email addresses, and other
contact information obtained while affiliated with Mary Kay to improperly solicit and
promote products and services to the Company’s independent sales force.
• Documents relating to how Defendant acquired the contact information used to solicit
and promote non-Mary Kay products and services to the Company’s independent sales
force.
• Documents relating to evidence submitted by these non-parties on Defendant’s behalf
in this litigation and upon which basis Defendant seeks injunctive relief and otherwise
defends herself against Mary Kay’s claims-in-suit (i.e.,the 5/14/18 Declaration of
Jenny Chavez (Defendant’s purported “volunteer” assistant who claims to have
“mistakenly” circulated certain solicitation and promotional materials to Mary Kay’s
independent sales force)).4
• Documents and communications between Defendant and these non-parties relating to
Mary Kay.
Further, Mary Kay’s request for this discovery from these non-parties is reasonable and
justified. Ms. Chavez is Defendant’s “volunteer” assistant and: (i) admits to having sent out these
3
See generally Def.’s Mot. to Quash, Ex. A at 17-83.
4
See, e.g., Def.’s Original Countercl. at ¶ 28; id., Ex. 3.
MARY KAY INC.’S RESPONSE TO DEFENDANT’S OBJECTION
TO THIRD PARTY DISCOVERY SUBPOENAS DUCES TECUM AND MOTION TO QUASH PAGE 2
solicitations and promotional materials on Defendant’s behalf; and (ii) purports to have knowledge
as to how Defendant acquired the contact information for the recipients of these communications.
See Def.’s Original Countercl., Ex. 3 at ¶¶ 1-10. Indeed, it is particularly surprising that Defendant
has moved to quash the subpoena to Ms. Chavez (and prevent discovery from her), given that
Defendant put Ms. Chavez’s conduct at issue in this litigation by submitting her testimony to
this Court on Defendant’s counterclaim. See id. And, like Ms. Chavez, Ms. Tighe—using an
email address belonging to Tighe, Kress & Orr, PC—has also sent out improper solicitation and
promotional materials on Defendant’s behalf. See Def.’s Mot. to Quash, Ex. A at 29-31
(identifying chrissy.tighe@tkocpa.com as the email address for “JCV Global,” and as having sent
certain such communications). Finally, Constant Contact is also identified as having played some
role in the transmission of these communications—both in Ms. Chavez’s declaration and on the
face of the communications themselves. See Def.’s Original Countercl., Ex. 3 at ¶¶ 3-4 (Ms.
Chavez declaring that she sent certain disputed email communications “using the online marketing
company, Constant Contact”); Def.’s Mot. to Quash, Ex. A at 31 (noting that the communication
was “[s]ent by chrissy.tighe@tkocpa.com in collaboration with Constant Contact.”).
For these reasons, and those further stated below, Mary Kay respectfully requests that the
Court deny Defendant’s Motion.
II. ARGUMENT
A. Legal Standard.
The purpose of discovery is to seek the truth, so that disputes may be decided by what the
facts reveal, not by what facts are concealed. Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 555
(Tex. 1990). Discovery may be obtained about any matter relevant to the subject matter of the
case. TEX. R. CIV. P. 192.3. Information is discoverable as long as it appears “reasonably
MARY KAY INC.’S RESPONSE TO DEFENDANT’S OBJECTION
TO THIRD PARTY DISCOVERY SUBPOENAS DUCES TECUM AND MOTION TO QUASH PAGE 3
calculated to lead to the discovery of admissible evidence.” Id. A party resisting discovery—here,
Defendant—bears the burden to show that the requested information falls outside the broad
boundaries of discovery set forth in the Texas Rules of Civil Procedure. Huie v. DeShazo, 922
S.W.2d 920, 926 (Tex. 1996).
B. Mary Kay’s Intended Third-Party Discovery is Proper and Should Be Permitted.
The Court should deny Defendant’s Motion to Quash for the following reasons:
First, the information sought by the third-party subpoenas is directly relevant to both
parties’ claims and defenses in this case. To be sure, Defendant, herself, has put these very matters
in issue. See supra at 1-3. This discovery goes to the crux of the instant dispute—i.e., Defendant’s
breach of her contractual commitments to Mary Kay. And, it is axiomatic that, in general, “a party
may obtain discovery regarding any matter that . . . is relevant to the subject matter of the pending
action, whether it relates to the claim or defense of the party seeking discovery or the claim or
defense of any other party.” See TEX. R. CIV. P. 192.3; see also In re Liberty Mut. Ins. Co., No.
14-09-00086-cv, 2009 Tex. App. LEXIS 1234, at *13-14 (Tex. App.—Houston [14th Dist.] Feb.
24, 2009, no pet.) (ordering trial court to vacate order granting motion for protection that prohibited
third-party discovery because, among other reasons, the discovery was relevant to matters in suit).
Mary Kay disagrees with Defendant’s contention that this discovery is overbroad in scope
(and notes that Defendant lacks standing to assert such objections anyhow), but, in any event, will
work with these non-parties in an effort to resolve any objections they may have to the same. See,
e.g., id. at *14-16:
GAO further contends the trial court’s ruling is properly based on any of its
objections that the discovery requests are overly broad, unduly burdensome, not
reasonably related to any issue in this case, harassing, oppressive, irrelevant, not
reasonably calculated to lead to the discovery of admissible evidence, not relevant
to the subject matter of the remaining claims, not relevant to any valid defense,
MARY KAY INC.’S RESPONSE TO DEFENDANT’S OBJECTION
TO THIRD PARTY DISCOVERY SUBPOENAS DUCES TECUM AND MOTION TO QUASH PAGE 4
without support in the pleadings, nothing more than delay tactics, or merely a
fishing expedition.
The party seeking to avoid discovery must show a particular, specific, and
demonstrable injury by facts sufficient to justify a protective order, and the trial
court may not grant a protective order limiting discovery unless the party seeking
such protection has met this burden . . . Thus, the party resisting discovery is not
free to make conclusory statements that the requested discovery is unduly
burdensome or unnecessarily harassing, but, instead, must produce some evidence
supporting its request for a protective order. . . . In support of their motion for a
protective order, GAO produced no specific evidence that the third-party discovery
requests are unduly burdensome or unnecessarily harassing to it. Therefore, the
trial court’s protective order cannot be properly based on GAO’s stock objections.
Second, Defendant’s various “technical” arguments that the subpoenas should be quashed
because they do not comply with the Texas Rules is also meritless. The subpoenas expressly state
that the documents can be produced at “such . . . other time and place as mutually agreed.” See,
e.g., Def.’s Mot. to Quash, Ex. A at 19 (directing, for example, Constant Contact to “produce the
documents and tangible things requested . . . at the offices of Lynn Pinker Cox & Hurst, LLP . . .
by July 10, 2018, or at such other time and place as mutually agreed.”) (emphasis added). And,
as noted, Mary Kay will coordinate these “finer points” with the subpoenaed non-parties in an
effort to minimize any inconvenience. Finally, Defendant’s argument that her motion must be
granted because “ten days’ notice” was not given to the non-parties (despite that she received such
notice) is also no basis to preclude this critical discovery. Each of the non-parties has apparently
received—for weeks—Defendant’s motion to quash, filed on June 27, and so each has had notice
of the intention to serve these subpoenas for far longer than ten days.5 Moreover, Mary Kay has
received no documents from these non-parties—and has not taken steps to compel the same—
pending resolution of Defendant’s Motion by this Court.
5
See Def.’s Mot. to Quash at 1.
MARY KAY INC.’S RESPONSE TO DEFENDANT’S OBJECTION
TO THIRD PARTY DISCOVERY SUBPOENAS DUCES TECUM AND MOTION TO QUASH PAGE 5
III. CONCLUSION
For these reasons, Mary Kay Inc. respectfully requests that the Court deny Defendant’s
Motion.
Dated: July 20, 2018 Respectfully submitted,
/s/ Christopher J. Schwegmann
Christopher J. Schwegmann
Texas Bar No. 25051315
cschwegmann@lynnllp.com
Jared D. Eisenberg
State Bar No. 24092382
jeisenberg@lynnllp.com
LYNN PINKER COX & HURST, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
Telephone: 214-981-3800
Facsimile: 214-981-3839
Jill Herz
State Bar No. 00785930
service@jillherz.com
ATTORNEY AT LAW
430 Founders Square
900 Jackson Street
Dallas, Texas 75202
(214) 745-4567 – (Telephone)
(214) 745-1156 – (Facsimile)
ATTORNEYS FOR PLAINTIFF
MARY KAY INC.
CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was served upon all counsel of record via e-
file on July 20, 2018.
/s/ Jared D. Eisenberg
Jared D. Eisenberg
MARY KAY INC.’S RESPONSE TO DEFENDANT’S OBJECTION
TO THIRD PARTY DISCOVERY SUBPOENAS DUCES TECUM AND MOTION TO QUASH PAGE 6
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FILED DALLAS COUNTY 7/20/2018 9:32 AM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-18-05560 MARY KAY INC., § IN THE DISTRICT COURT OF § Plaintiff, § § v. § DALLAS COUNTY, TEXAS § xxxxx xxxxx xxxxxxx, § § Defendant. § 116th JUDICIAL DISTRICT MARY KAY INC.’S RESPONSE TO DEFENDANT’S OBJECTION TO THIRD PARTY DISCOVERY SUBPOENAS DUCES TECUM AND MOTION TO QUASH Plaintiff Mary Kay (“Mary Kay”) files this Response to Defendant’s Objection to Third Party Discovery Subpoenas Duces Tecum and Motion to Quash and, in support thereof, respectfully shows the Court as follows: I. INTRODUCTION AND FACTUAL BACKGROUND Mary Kay asks this Court to deny xxxxxxx’ (“Defendant”) Motion to Quash (“Motion”), because the information sought by these non-party subpoenas is directly relevant to both Mary Kay’s affirmative claims against Defendant and Defendant’s counterclaim against Mary Kay. In this lawsuit, Mary Kay asserts that Defendant breached her agreements with the Company by, inter alia, improperly soliciting and pitching products and services to Mary Kay’s independent sales force through the inappropriate use of distribution and mailing lists (and otherwise).1 Defendant denies these allegations and appears to claim that Mary Kay breached these same agreements, inter alia, by withholding certain FSP payments when no such solicitation or promotion occurred.2 The 1 See, e.g., Mary Kay’s Am. Verified Original Pet. at ¶¶ 29-30. 2 See, e.g., Def.’s Original Countercl. at ¶¶ 28-37. MARY KAY INC.’S RESPONSE TO DEFENDANT’S OBJECTION TO THIRD PARTY DISCOVERY SUBPOENAS DUCES TECUM AND MOTION TO QUASH PAGE 1 third-party discovery at issue strikes at the heart of these allegations. Specifically, the subpoenas seek, among others, the following documents:3 • Documents sufficient to identify recipients of the improper solicitations and promotional materials sent by, and through, these non-parties on Defendants’ behalf. • Documents sufficient to identify the full range and content of the improper solicitations and promotional materials sent by, and through, these non-parties on Defendant’s behalf. • Documents and communications between Defendant and these non-parties (and others) that relate to efforts by Defendant to recruit Mary Kay’s independent sales force to other direct-sales companies. • Documents and communications between Defendant and these non-parties (and others) that relate to efforts by Defendant to promote non-Mary Kay products and services to Mary Kay’s independent sales force. • Documents relating to Defendant’s use of mailing lists, email addresses, and other contact information obtained while affiliated with Mary Kay to improperly solicit and promote products and services to the Company’s independent sales force. • Documents relating to how Defendant acquired the contact information used to solicit and promote non-Mary Kay products and services to the Company’s independent sales force. • Documents relating to evidence submitted by these non-parties on Defendant’s behalf in this litigation and upon which basis Defendant seeks injunctive relief and otherwise defends herself against Mary Kay’s claims-in-suit (i.e.,the 5/14/18 Declaration of Jenny Chavez (Defendant’s purported “volunteer” assistant who claims to have “mistakenly” circulated certain solicitation and promotional materials to Mary Kay’s independent sales force)).4 • Documents and communications between Defendant and these non-parties relating to Mary Kay. Further, Mary Kay’s request for this discovery from these non-parties is reasonable and justified. Ms. Chavez is Defendant’s “volunteer” assistant and: (i) admits to having sent out these 3 See generally Def.’s Mot. to Quash, Ex. A at 17-83. 4 See, e.g., Def.’s Original Countercl. at ¶ 28; id., Ex. 3. MARY KAY INC.’S RESPONSE TO DEFENDANT’S OBJECTION TO THIRD PARTY DISCOVERY SUBPOENAS DUCES TECUM AND MOTION TO QUASH PAGE 2 solicitations and promotional materials on Defendant’s behalf; and (ii) purports to have knowledge as to how Defendant acquired the contact information for the recipients of these communications. See Def.’s Original Countercl., Ex. 3 at ¶¶ 1-10. Indeed, it is particularly surprising that Defendant has moved to quash the subpoena to Ms. Chavez (and prevent discovery from her), given that Defendant put Ms. Chavez’s conduct at issue in this litigation by submitting her testimony to this Court on Defendant’s counterclaim. See id. And, like Ms. Chavez, Ms. Tighe—using an email address belonging to Tighe, Kress & Orr, PC—has also sent out improper solicitation and promotional materials on Defendant’s behalf. See Def.’s Mot. to Quash, Ex. A at 29-31 (identifying chrissy.tighe@tkocpa.com as the email address for “JCV Global,” and as having sent certain such communications). Finally, Constant Contact is also identified as having played some role in the transmission of these communications—both in Ms. Chavez’s declaration and on the face of the communications themselves. See Def.’s Original Countercl., Ex. 3 at ¶¶ 3-4 (Ms. Chavez declaring that she sent certain disputed email communications “using the online marketing company, Constant Contact”); Def.’s Mot. to Quash, Ex. A at 31 (noting that the communication was “[s]ent by chrissy.tighe@tkocpa.com in collaboration with Constant Contact.”). For these reasons, and those further stated below, Mary Kay respectfully requests that the Court deny Defendant’s Motion. II. ARGUMENT A. Legal Standard. The purpose of discovery is to seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed. Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 555 (Tex. 1990). Discovery may be obtained about any matter relevant to the subject matter of the case. TEX. R. CIV. P. 192.3. Information is discoverable as long as it appears “reasonably MARY KAY INC.’S RESPONSE TO DEFENDANT’S OBJECTION TO THIRD PARTY DISCOVERY SUBPOENAS DUCES TECUM AND MOTION TO QUASH PAGE 3 calculated to lead to the discovery of admissible evidence.” Id. A party resisting discovery—here, Defendant—bears the burden to show that the requested information falls outside the broad boundaries of discovery set forth in the Texas Rules of Civil Procedure. Huie v. DeShazo, 922 S.W.2d 920, 926 (Tex. 1996). B. Mary Kay’s Intended Third-Party Discovery is Proper and Should Be Permitted. The Court should deny Defendant’s Motion to Quash for the following reasons: First, the information sought by the third-party subpoenas is directly relevant to both parties’ claims and defenses in this case. To be sure, Defendant, herself, has put these very matters in issue. See supra at 1-3. This discovery goes to the crux of the instant dispute—i.e., Defendant’s breach of her contractual commitments to Mary Kay. And, it is axiomatic that, in general, “a party may obtain discovery regarding any matter that . . . is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party.” See TEX. R. CIV. P. 192.3; see also In re Liberty Mut. Ins. Co., No. 14-09-00086-cv, 2009 Tex. App. LEXIS 1234, at *13-14 (Tex. App.—Houston [14th Dist.] Feb. 24, 2009, no pet.) (ordering trial court to vacate order granting motion for protection that prohibited third-party discovery because, among other reasons, the discovery was relevant to matters in suit). Mary Kay disagrees with Defendant’s contention that this discovery is overbroad in scope (and notes that Defendant lacks standing to assert such objections anyhow), but, in any event, will work with these non-parties in an effort to resolve any objections they may have to the same. See, e.g., id. at *14-16: GAO further contends the trial court’s ruling is properly based on any of its objections that the discovery requests are overly broad, unduly burdensome, not reasonably related to any issue in this case, harassing, oppressive, irrelevant, not reasonably calculated to lead to the discovery of admissible evidence, not relevant to the subject matter of the remaining claims, not relevant to any valid defense, MARY KAY INC.’S RESPONSE TO DEFENDANT’S OBJECTION TO THIRD PARTY DISCOVERY SUBPOENAS DUCES TECUM AND MOTION TO QUASH PAGE 4 without support in the pleadings, nothing more than delay tactics, or merely a fishing expedition. The party seeking to avoid discovery must show a particular, specific, and demonstrable injury by facts sufficient to justify a protective order, and the trial court may not grant a protective order limiting discovery unless the party seeking such protection has met this burden . . . Thus, the party resisting discovery is not free to make conclusory statements that the requested discovery is unduly burdensome or unnecessarily harassing, but, instead, must produce some evidence supporting its request for a protective order. . . . In support of their motion for a protective order, GAO produced no specific evidence that the third-party discovery requests are unduly burdensome or unnecessarily harassing to it. Therefore, the trial court’s protective order cannot be properly based on GAO’s stock objections. Second, Defendant’s various “technical” arguments that the subpoenas should be quashed because they do not comply with the Texas Rules is also meritless. The subpoenas expressly state that the documents can be produced at “such . . . other time and place as mutually agreed.” See, e.g., Def.’s Mot. to Quash, Ex. A at 19 (directing, for example, Constant Contact to “produce the documents and tangible things requested . . . at the offices of Lynn Pinker Cox & Hurst, LLP . . . by July 10, 2018, or at such other time and place as mutually agreed.”) (emphasis added). And, as noted, Mary Kay will coordinate these “finer points” with the subpoenaed non-parties in an effort to minimize any inconvenience. Finally, Defendant’s argument that her motion must be granted because “ten days’ notice” was not given to the non-parties (despite that she received such notice) is also no basis to preclude this critical discovery. Each of the non-parties has apparently received—for weeks—Defendant’s motion to quash, filed on June 27, and so each has had notice of the intention to serve these subpoenas for far longer than ten days.5 Moreover, Mary Kay has received no documents from these non-parties—and has not taken steps to compel the same— pending resolution of Defendant’s Motion by this Court. 5 See Def.’s Mot. to Quash at 1. MARY KAY INC.’S RESPONSE TO DEFENDANT’S OBJECTION TO THIRD PARTY DISCOVERY SUBPOENAS DUCES TECUM AND MOTION TO QUASH PAGE 5 III. CONCLUSION For these reasons, Mary Kay Inc. respectfully requests that the Court deny Defendant’s Motion. Dated: July 20, 2018 Respectfully submitted, /s/ Christopher J. Schwegmann Christopher J. Schwegmann Texas Bar No. 25051315 cschwegmann@lynnllp.com Jared D. Eisenberg State Bar No. 24092382 jeisenberg@lynnllp.com LYNN PINKER COX & HURST, LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 Telephone: 214-981-3800 Facsimile: 214-981-3839 Jill Herz State Bar No. 00785930 service@jillherz.com ATTORNEY AT LAW 430 Founders Square 900 Jackson Street Dallas, Texas 75202 (214) 745-4567 – (Telephone) (214) 745-1156 – (Facsimile) ATTORNEYS FOR PLAINTIFF MARY KAY INC. CERTIFICATE OF SERVICE I hereby certify that the foregoing document was served upon all counsel of record via e- file on July 20, 2018. /s/ Jared D. Eisenberg Jared D. Eisenberg MARY KAY INC.’S RESPONSE TO DEFENDANT’S OBJECTION TO THIRD PARTY DISCOVERY SUBPOENAS DUCES TECUM AND MOTION TO QUASH PAGE 6