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FILED
DALLAS COUNTY
5/10/2019 3:07 PM
FELICIA PITRE
DISTRICT CLERK
Veronica Vaughn
CAUSE NO. DC-18-05560
MARY KAY, INC., § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § 116th JUDICIAL DISTRICT
§
xxxxx xxxxx xxxxxxx, §
§
Defendant. § DALLAS COUNTY, TEXAS
Counter-Plaintiff. §
______________________________________/
DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES
TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, xxxxx xxxxx xxxxxxx (“Plaintiff”), in the above-styled and numbered
cause, and files this Motion to Compel (the “Motion”), and would respectfully show the Court as
follows:
I.
INTRODUCTION
(Regarding Both Requests)
A. Amended Second Request for Production
On July 2, 2018, Defendant served her Amended Second Request for Production on Mary
Kay, Inc. (“Plaintiff”). On July 29, 2018, Plaintiff served its Responses to Defendant’s
Amended Second Request for Production.\ 1 The basis of Plaintiff’s objection is primarily one of
relevance. In fact, Defendant provided the identical objection to each numbered request by
contending as follows:
Mary Kay objects to this Request because it is neither relevant to the subject matter
of this lawsuit nor reasonably calculated to lead to the discovery of admissible
1
A true and correct copy of PlaintiffMary Kay, Inc.’s Responses toDefendant’s Second Requests for
Production is attached hereto as Exhibit “A” and incorporated herein by reference as if set forth in full.
DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES
TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 1
evidence. Mary Kay objects to this request to the extent it seeks documents protected
by the attorney-client privilege, work product privilege, or other applicable
privileges. Mary Kay also objects to this request as harassing because the document
request is for the improper purpose of involving a nonparty whose actions are not
relevant to this lawsuit. [Name of alleged comparator] is not a party to this
litigation, and no allegation exists in either Mary Kay’s petition or Defendant’s
counterclaim that Ms. Banks has taken any action or refrained from taking any
action that caused Defendant to breach her agreements with Mary Kay or that
caused Mary Kay to stop payment of Defendant’s FSP payments. Furthermore,
Defendant’s conduct is the relevant benchmark to determine whether she breached
her obligations under her NSD Agreement, as amended, and the Family Security
Plan. Mary Kay also objects because this request is not limited by a relevant time
period or scope of persons solicited or promoted to and therefore is overbroad.
Based on such, Plaintiff Mary Kay has refused to produce any responsive documents
whatsoever to Defendant’s Amended Second Request.
B. Third Request for Production
On January 9, 2019, Defendant served her Third Request for Production on Plaintiff. To
date, the Plaintiff has filed responses that are either incomplete by stating that, despite
objections, “Mary Kay will produce non-privileged documents that are relevant to this Request,
if any…;” or objecting on grounds of relevancy and refusing to produce any documents
whatsoever in response to the numbered request.\ 2 The former response was given in response to
Requests numbered 2 - 4, 7 – 12, and 14, while the latter response was invoked to Requests
numbered 1, 5 and 6. Defendant claims no documents exist in response to Request number 13.
During the hearing on Defendant’s Motion to Compel Corporate Representative
Depositions held on January 9, 2019 (which this Court granted in large part), the Court stated
that comparator discovery was not yet relevant or “ripe” because the claim for religious
discrimination and retaliation, although alluded to, was not yet raised in Defendant xxxxxxx’
Counterclaims. However, since the date of that hearing, Defendant filed her First Amended
2
A true and correct copy of PlaintiffMary Kay, Inc.’sResponses to Defendant’s Third Requests for
Production is attached hereto as Exhibit “B” and incorporated herein by reference as if set forth in full.
DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES
TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 2
Counterclaim and Application for Permanent Injunctive Relief on February 25, 2019 asserting
claims for:
a) Breach of Contract (Count I);
b) Breach of Fiduciary Duty (Count II (new claim);
c) Unlawful Religious Discrimination Under the FCRA (Count III – new clam);
d) Unlawful Retaliation Under the FCRA (Count IV – new claim); and
e) Permanent Injunction (Count V).
Because the Defendant has now raised claims for which the discovery sought is relevant
for the prosecution of her Counterclaims, Defendant needs to depose Plaintiff’s and the FSP’s
corporate representatives on the topics identified and have the Plaintiff produce the requested
documents, rather than being permitted to stand by its numerous baseless objections.
Accordingly, Defendant requests that the Court overrule all of Plaintiff’s objections and
compel Plaintiff to produce responsive documents within 5 days of the Court’s order.
II.
ARGUMENT AND AUTHORITIES
A. The Court Is Authorized to Compel Discovery
The ultimate 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.”\ 3 Thus, relevant discovery includes
any information that is relevant or reasonably calculated to lead to the discovery of admissible
evidence.\ 4 When a party serves written discovery seeking items relating to relevant topics, the
3
In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex.1998); Jampole v. Touchy, 673 S.W.2d
569, 573 (Tex.1984) (same).
4
See TEX. R. CIV. P. 192.3(a); TEX. R. EVID. 401; Jampole, 673 S.W.2d at 573 (Tex.1984) (“To
increase the likelihood that all relevant evidence will be disclosed and brought before the trier of fact, . . .
discoverable evidence to include[s] anything reasonably calculated to lead to the discovery of admissible
material.”).
DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES
TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 3
responding party is required to produce all responsive documents and things “within the person’s
possession, custody, or control.”\ 5 “The phrase ‘possession, custody, or control,’ within the
meaning of [TRCP 192.7(b)], includes not only actual physical possession, but constructive
possession, and the right to obtain possession from a third party, such as an agent or
representative.”\ 6
Furthermore, “when responding to written discovery, a party must make a complete
response, based on all information reasonably available to the responding party or its attorney at
the time the response is made.” \ 7
The party seeking to avoid making discovery bears the burden of demonstrating that the
court should exclude the discovery sought.\ 8 Rule 193.2 requires the objecting party to “state
specifically the legal or factual basis” for each objection.\ 9 Valid objections that are obscured by
unfounded objections are waived unless the objecting party can show good cause.\ 10
Moreover, when a party fails to respond it waives all objections and claims of
privilege.\ 11 Where a party refuses to produce items in response to a relevant discovery requests,
Rule 215.1 authorizes courts to enter orders compelling discovery. Courts are also authorized to
award expenses relating to securing the opposing party’s compliance with the rules of
discovery.\ 12
5
TEX. R. CIV. P. 192.3(b); see also TEX. R. CIV. P. 192.7(b) (defining “possession, custody, and
control”).
6
GTE Comm. Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993).
7
See Tex. R. Civ. P. 193.1.
8
See TEX. R. CIV. P. 192.4; Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986);
General Electric Co. v. Salinas, 861 S.W.2d 20, 23 (Tex.App. – Corpus Christi 1993, no writ).
9
TEX. R. CIV. P. 193.2(a).
10
See TEX. R. CIV. P. 193.2(c) and (e).
11
See TEX. R. CIV. P. 193.2(e); see, e.g., Hobson v. Moore, 734 S.W.2d 340, 341 (Tex. 1987).
12
See TEX. R. CIV. P. 215.1(d) (“If the motion is granted, the court shall . . . require a party or
deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of
DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES
TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 4
B. The Court Should Compel Defendants to Respond to Plaintiffs’ Discovery
Prior to agreeing to produce any responses and/or documents in response to Defendant’s
First Request, Plaintiff’s counsel insisted upon entry of an Agreed Protective Order. Counsel for
both parties negotiated in good faith regarding same and came to an agreement on all terms,
which resulted in the Agreed Protective Order and Joint Motion for same filed on July 12, 2018.
Defendant’s discovery requests were narrowly tailored and targeted to seek only relevant
information reasonably calculated to get to the heart of Plaintiff’s claims and Defendant’s
defenses and counterclaims. Plaintiff has nevertheless failed without excuse to properly respond
in accordance with the Texas Rules of Civil Procedure.
1. Defendant’s Amended Second Request for Production.
Requests Nos. 6-15 – These requests sought documents, emails, or communications
maintained by Plaintiff Mary Kay concerning any action(s) whatsoever (including but not limited
to a warning, discipline, etc.) taken against:
a. Plaintiff’s National Sales Director, Gloria Mayfield Banks (RTP 6);
b. Plaintiff’s former National Sales Director, Jeanie Martin (RTP 7);
c. Plaintiff’s National Sales Director, Caterina Harris Earl (RTP 8);
d. Plaintiff’s National Sales Director, Crisette Ellis (RTP 9);
e. Plaintiff’s National Sales Director, Cecilia James (RTP 10);
f. Plaintiff’s National Sales Director, Dacia Weigandt (RTP 11);
g. Plaintiff’s National Sales Director, Dawn Otten Sweeney (RTP 12);
h. Plaintiff’s National Sales Director, Andrea Newman Scott (RTP 13);
them to pay, at such time as ordered by the court, the moving party the reasonable expenses incurred in
obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was
substantially justified or that other circumstances make an award of expenses unjust.”).
DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES
TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 5
i. Plaintiff’s National Sales Director, Lia Carta (RTP 14), and
j. Plaintiff’s National Sales Director, Kimberly Copeland (RTP 15)
Each request sought “copies of any and all documents, emails, or communication of any
kind or type maintained by Plaintiff Mary Kay concerning any action(s) whatsoever (including but
not limited to a warning, discipline, etc.) taken against [the individual]” by Plaintiff for soliciting
for donations not related to Mary Kay, soliciting for sales of either her personal items (i.e. non-
Mary Kay related), or the sale of items or services made or manufactured by another person,
actively promoting goods, services or talents of individuals that are not within the Mary Kay
organization, and/or publicly promoting paid training sessions or seminars for which she
conducted. For each person identified in the requests, Defendant attached as exhibits documents
illustrating conduct by the person identified, which is the same or similar to the conduct that
Plaintiff alleges that Defendant “breached her obligations under her NSD Agreement, as amended,
and the Family Security Plan.”
To each of these requests, Plaintiff asserted the myriad of objections noted above,
namely, overly broad and burdensome, vague and ambiguous, relevance, specificity, etc.
Plaintiff’s objections are improper and lack any merit. Each of these requests are narrowly
tailored to any actions taken by Plaintiff against similarly situated individuals as Defendant,
based upon specific acts as set forth by actual examples attached as exhibits to the Requests (See
Exhibits “A” through “H” to Defendant’s Second Request.) As such, the requests seek relevant
information limited to claims and defenses of this lawsuit. Such comparator evidence is relevant
and discoverable in light of Defendant’s First Amended Counterclaim and Application for
Permanent Injunctive Relief filed on February 25, 2019.
DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES
TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 6
As this Court is aware, to establish a prima facie case of discrimination based on disparate
treatment, a plaintiff must show that she was (1) a member of a protected class, (2) qualified for the
employment position at issue, (3) subject to an adverse employment action, which includes
termination, and (4) treated less favorably than similarly situated members outside of the
protected class.” Harris County v. Bankhead, 2014 Tex. App. LEXIS 13906, *8-9 (emphasis
added); citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). See also
McKenna v. Baylor Coll. of Med., 2016 Tex. App. LEXIS 4460 *11-13; 2016 WL 1714870.
As the Bankhead Court stated further,
With regard to the fourth element, “an employee who proffers a fellow employee
as a comparator [must] demonstrate that the employment actions at issue were
taken ‘under nearly identical circumstances.’” See Lee v. Kan. City S. Ry.
Co., 574 F.3d 253, 259-60 (5th Cir. 2009). The Texas Supreme Court has held
that employees are similarly situated “if their circumstances are comparable in all
material respects, including similar standards, supervisors, and conduct.”
Monarrez, 177 S.W.3d at 917.
Id. at *9, 10.
Therefore, Defendant is in need of the comparator evidence to help establish two of her
claims, religious discrimination and retaliation for exercising their faith, as pled in paragraphs
63, 64 and 80 of her First Amended Counterclaim. Without being provided this discovery,
which is in the sole possession of Plaintiff, Defendant will be prejudiced and prevented from
putting forth evidence in support of her claim for discrimination.
Notably, and contrary to Plaintiff’s contentions, the documents sought are also relevant as
they go the issue of waiver, a potential and available defense for Defendant to the breach of
contract assertions by Plaintiff in this matter.
Furthermore, Defendant and her counsel need such responses and records to prepare for
the upcoming Plaintiff and FSP corporate representatives depositions already scheduled for June
DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES
TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 7
6, 2019, as they relate to relevant defenses in this action. Plaintiff’s “stall” tactics are
unwarranted, gamesmanship, and prejudicial to Defendant and should not be permitted.
Thus, each of Plaintiff’s objections should be overruled. Therefore, Defendant requests
that the Court overrule all of Plaintiff’s objections and require Plaintiff to produce all responsive
documents within 7 days of the Court’s order.
2. Defendant’s Third Request for Production
As noted, supra, the Plaintiff has filed responses to Defendant’s Third Request that are
either incomplete by stating that, despite objections, “Mary Kay will produce non-privileged
documents that are relevant to this Request, ifany… to Requests numbered 2 - 4, 7 – 12, and
14;” and has objected on grounds of relevancy and refusing to produce any documents
whatsoever in response to Requests numbered 1, 5 and 6. Plaintiff claims no documents exist in
response to Request number 13.
Defendant’s counsel has followed up with Plaintiff’s counsel several times and has been
told that Plaintiff will “check on” or is “working on” the production. More than three (3) months
have now passed since the due date for Plaintiff’s response on February 8, 2019. Accordingly,
Plaintiff should be compelled to produce the documents that it indicated would be produced
immediately.
Regarding Requests Number 1, 5 and 6 of the Third Request, the requests and responses
were as follows:
REQUEST FOR PRODUCTION NO. 1: Please produce any and all Company
policies and procedures for dealing with National Sales Directors who violate the
restrictive covenants in their Independent National Sales Director Agreement.
RESPONSE:
Mary Kay objects to this Request as seeking irrelevant information that is not
reasonably calculated to lead to the discovery of admissible evidence. This lawsuit
DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES
TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 8
concerns only xxxxxxx’ violations of her contractual agreements with Mary Kay, and
the Court has previously ruled—on numerous occasions—that discovery in this case
be limited to those violations. This Request represents another improper attempt to
circumvent those rulings. Mary Kay further objects to this Request as vague and
ambiguous, particularly with respect to the phrase “policies and procedures.” Mary
Kay will not search for or produce documents in response to this Request.
REQUEST FOR PRODUCTION NO. 5: Please produce all communications,
including e-mails, between the Company and its National Sales Directors concerning
Defendant from January 1, 2017 to the present.
RESPONSE:
Mary Kay objects to this Request as seeking irrelevant information that is not
reasonably calculated to lead to the discovery of admissible evidence. Mary Kay
further objects to this Request as overbroad in scope to the extent it seeks “all
communications.” Mary Kay further objects to this Request as vague and ambiguous,
particularly as it relates to the term “concerning.” Mary Kay’s communications with
its NSDs broadly regarding “Defendant”—and dating as far back as January 1,
2017—are irrelevant to the question of whether Defendant breached her agreements
with the Company. Mary Kay has already produced relevant documents between the
Company and its NSDs that concern xxxxxxx’ alleged breaches-in-suit. Mary Kay will
not produce additional documents in response to this Request.
REQUEST FOR PRODUCTION NO. 6: Please produce all internal
communications, including e-mails, between the Company’s officers and directors
concerning Defendant from January 1, 2017 to the present.
RESPONSE:
Mary Kay objects to this Request as seeking irrelevant information that is not
reasonably calculated to lead to the discovery of admissible evidence. Mary Kay
further objects to this Request as overbroad in scope to the extent it seeks “all internal
communications.” Mary Kay further objects to this Request as vague and ambiguous,
particularly as it relates to the term “concerning.” Mary Kay’s communications with
its “officers and directors” broadly regarding “Defendant”—and dating as far back as
January 1, 2017—are irrelevant to the question of whether Defendant breached her
agreements with the Company. Mary Kay will not produce additional documents in
response to this Request beyond those categories of documents identified above
and/or below.
Respectfully, Plaintiff’s objections are meritless. Defendant is seeking documents
directly related and relevant to Plaintiff’s breach of contract claim and Defendant’s
counterclaims for breach of fiduciary duty and religious discrimination. Regarding Request No.
1, Defendant should clearly be entitled to determine what policies and procedures, if any,
DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES
TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 9
Plaintiff has for addressing “National Sales Directors [such as Defendant] who [allegedly] violate
the restrictive covenants in their Independent National Sales Director Agreement.” Frankly,
Plaintiff’s objection and refusal to produce such documents illustrates Plaintiff’s discovery abuses. If
Plaintiff has no such documents, then the proper response would be to state as much rather than to
assert baseless objections thereby causing Defendant to incur needless attorney’s fees and expenses.
Documents in response to Request No. 5 (external communications regarding Defendant) and
No. 6 (internal communications between Plaintiff’s officers and directors concerning Defendant) are
relevant and should be produced, as such communications directly relate to Plaintiff’s allegation that
Defendant has:
sent mass emails to Mary Kay independent sales force members promoting her
"health and wellness podcast" and soliciting business for John Monhollon, M.D.
of the Florida Integrated Medical Center in Sarasota, by not only promoting his
medical services but also offering to schedule appointments with the doctor,
including scheduling a series of B12 shots…[and by doing so] [Defendant]
xxxxxxx [allegedly] violated promise (a) not to promote, distribute or sell to other
members of the Mary Kay sales organization; and (b) not to engage in recruiting
Mary Kay Beauty Consultants, Sales Directors, or National Sales Directors, or to
use any names, mailing lists, or other information which she obtained during her
association with Mary Kay.
See paragraphs 22 and 24 of Plaintiff’s Amended Verified Original Petition. This discovery is
also relevant to Defendants’ counterclaims for breach of fiduciary duty and discrimination as
these communications will likely demonstrate the disparate treatment of Defendant by Plaintiff.
The discovery that Defendant is seeking under Requests Nos. 1, 5 and 6 is relevant.
Without such discovery, which is in the sole possession of Plaintiff, Defendant will be prejudiced
in the defense of the claims against her and in the prosecution of her counterclaims.
Accordingly, Defendant requests that the Court overrule all of Plaintiff’s objections and require
Plaintiff to produce all responsive documents within 7 days of the Court’s order.
DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES
TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 10
III.
CONCLUSION
Defendant’s discovery requests seek relevant information. Moreover, Defendant’s
discovery requests were narrowly tailored to seek only information relevant to the claims and
defenses asserted in this lawsuit. Plaintiff has provided incomplete, confounded and misleading
responses in violation of the Texas Rules of Civil Procedure. Accordingly, Defendant requests
that the Court compel Plaintiff to comply with the Texas Rules of Civil Procedure as requested
above.
WHEREFORE PREMISES CONSIDERED, Defendant respectfully requests that the
Court grant this Motion to Compel; overrule all of Plaintiff’s objections; require Plaintiff to
produce all responsive documents to Defendant’s Amended Second Request for Production and
Third Request for Production within 7 days of the Court’s order, and, for such other and further
relief, both general and special, at law or in equity, to which Defendant may be justly entitled.
DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES
TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 11
Respectfully submitted,
FRIEDMAN & FEIGER, L.L.P.
By: /s/ Ryan K. Lurich
Ryan K. Lurich
State Bar No. 24013070
rlurich@fflawoffice.com
5301 Spring Valley Road, Suite 200
Dallas, Texas 75254
(972) 788-1400 (Telephone)
(972) 788-2667 (Telecopier)
And
/s/ Gary D. Wilson
Gary D. Wilson*
Florida Bar No. 0846406
gwilson@wilsonmccoylaw.com
WILSON McCoy, P.A.
Point 100 Building
100 E. Sybelia Avenue, Suite 205
Maitland, Florida 32751
(407) 803-5400 (Telephone)
(407) 803-4617 (Telecopier)
* Admitted Pro Hac Vice
ATTORNEYS FOR DEFENDANT
xxxxx CRUISE xxxxxxx
DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES
TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 12
CERTIFICATE OF CONFERENCE
This shall certify that the undersigned has conferred with counsel for Plaintiff regarding
this motion to compel. Counsel for Plaintiff is opposed to the relief requested. Accordingly, this
motion is being submitted to the Court for consideration.
/s/ Gary D. Wilson
Gary D. Wilson
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been served
upon all counsel of record on this the 10th day of May, 2019, in accordance with the Texas Rules
of Civil Procedure.
Christopher J. Schwegmann, Esq.
Jared D. Eisenberg, Esq.
Lynn Pinker Cox & Hurst, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
(214) 981-3800 (Telephone)
(214) 981-3839 (Telecopier)
Jill Herz, Attorney at Law
430 Founders Square
900 Jackson Street Dallas, Texas 75202
214-745-4567 (Telephone)
214-745-1156 (Telecopier)
/s/ Ryan K. Lurich
Ryan K. Lurich
#824118
DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES
TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 13
EXHIBIT "A"
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
PLAINTIFF’S OBJECTIONS AND RESPONSES TO DEFENDANT’S
SECOND REQUEST FOR PRODUCTION
TO: Defendant, by and through her attorneys of record.
Pursuant to TEXAS RULE OF CIVIL PROCEDURE 196, PLAINTIFF MARY KAY INC. serves its
Objections and Responses to Defendant xxxxx xxxxx xxxxxxx’ Second Requests for Production of
Documents as follows:
I. OBJECTIONS AND RESPONSES TO REQUESTS FOR PRODUCTION
REQUEST FOR PRODUCTION NO. 6: Please provide copies of any and all documents,
emails, or communication of any kind or type maintained by Plaintiff Mary Kay concerning any
action(s) whatsoever (including but not limited to a warning, discipline, etc.) taken against
Plaintiff’s National Sales Director, Gloria Mayfield Banks, for any of the following actions: a)
Soliciting for donations not related to Mary Kay; b) Soliciting for sales of either her personal items
(i.e. non-Mary Kay related) or the sale of items or services made or manufactured by another
person; c) Actively promoting goods, services or talents of individuals that are not within the Mary
Kay organization; and/or d) Publicly promoting paid training sessions or seminars which she
conducted, as illustrated in, but not solely limited to, Exhibit “A” hereto.
RESPONSE: Mary Kay objects to this Request because it is neither relevant to the subject matter
of this lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Mary
Kay objects to this request to the extent it seeks documents protected by the attorney-client
privilege, work product privilege, or other applicable privileges. Mary Kay also objects to this
request as harassing because the document request is for the improper purpose of involving a
nonparty whose actions are not relevant to this lawsuit. Gloria Mayfield Banks isnot a party to
this litigation, and no allegation exists in either Mary Kay’s petition or Defendant’s counterclaim
that Ms. Banks has taken any action or refrained from taking any action that caused Defendant to
breach her agreements with Mary Kay or that caused Mary Kay to stop payment of Defendant’s
FSP payments. Furthermore, Defendant’s conduct is the relevant benchmark to determine whether
PLAINTIFF’S OBJECTIONS AND RESPONSES TO
DEFENDANT’S SECOND REQUEST FOR PRODUCTION PAGE 1
she breached her obligations under her NSD Agreement, as amended, and the Family Security
Plan. Mary Kay also objects because this request is not limited by a relevant time period or scope
of persons solicited or promoted to and therefore is overbroad.
REQUEST FOR PRODUCTION NO. 7: Please provide copies of any and all documents,
emails, or communication of any kind or type maintained by Plaintiff Mary Kay concerning any
action(s) whatsoever (including but not limited to a warning, discipline, etc.) taken against
Plaintiff’s former National Sales Director, Jeanie Martin, for any of the following actions: a)
Soliciting for donations not related to Mary Kay; b) Soliciting for sales of either her personal items
(i.e. non-Mary Kay related) or the sale of items or services made or manufactured by another
person; c) Actively promoting goods, services or talents of individuals that are not within the Mary
Kay organization; and/or d) Publicly promoting paid training sessions or seminars which she
conducted, as illustrated in, but not solely limited to, Exhibit “B” hereto.
RESPONSE: Mary Kay objects to this Request because it is neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence. Mary Kay objects to this request to the
extent it seeks documents protected by the attorney-client privilege, work product privilege, or
other applicable privileges. Mary Kay also objects to this request as harassing because the
document request is for the improper purpose of involving a nonparty whose actions are not
relevant to this lawsuit. Jeanie Martin is not a party to this litigation, and no allegation exists in
either Mary Kay’s petition or Defendant’s counterclaim that Ms. Martin has taken any action or
refrained from taking any action that caused Defendant to breach her agreements with Mary Kay
or that caused Mary Kay to stop payment of Defendant’s FSP payments. Furthermore, Defendant’s
conduct is the relevant benchmark to determine whether she breached her obligations under her
NSD Agreement, as amended, and the Family Security Plan. Mary Kay also objects because this
request is not limited by a relevant time period or scope of persons solicited or promoted to and
therefore is overbroad.
REQUEST FOR PRODUCTION NO. 8: Please provide copies of any and all documents,
emails, or communication of any kind or type maintained by Plaintiff Mary Kay concerning any
action(s) whatsoever (including but not limited to a warning, discipline, etc.) taken against
Plaintiff’s National Sales Director, Caterina Harris Earl, for any of the following actions: a)
Soliciting for donations not related to Mary Kay; b) Soliciting for sales of either her personal items
(i.e. non-Mary Kay related) or the sale of items or services made or manufactured by another
person; c) Actively promoting goods, services or talents of individuals that are not within the Mary
Kay organization; and/or d) Publicly promoting paid training sessions or seminars which she
conducted, 6 as illustrated in, but not solely limited to, Exhibit “C” hereto.
RESPONSE: Mary Kay objects to this Request because it is neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence. Mary Kay objects to this request to the
extent it seeks documents protected by the attorney-client privilege, work product privilege, or
other applicable privileges. Mary Kay also objects to this request as harassing because the
document request is for the improper purpose of involving a nonparty whose actions are not
relevant to this lawsuit. Caterina Harris Earl is not a party to this litigation, and no allegation exists
in either Mary Kay’s petition or Defendant’s counterclaim that Ms. Earl has taken any action or
refrained from taking any action that caused Defendant to breach her agreements with Mary Kay
PLAINTIFF’S OBJECTIONS AND RESPONSES TO
DEFENDANT’S SECOND REQUEST FOR PRODUCTION PAGE 2
or that caused Mary Kay to stop payment of Defendant’s FSP payments. Furthermore, Defendant’s
conduct is the relevant benchmark to determine whether she breached her obligations under her
NSD Agreement, as amended, and the Family Security Plan. Mary Kay also objects because this
request is not limited by a relevant time period or scope of persons solicited or promoted to and
therefore is overbroad.
REQUEST FOR PRODUCTION NO. 9: Please provide copies of any and all documents,
emails, or communication of any kind or type maintained by Plaintiff Mary Kay concerning any
action(s) whatsoever (including but not limited to a warning, discipline, etc.) taken against
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FILED DALLAS COUNTY 5/10/2019 3:07 PM FELICIA PITRE DISTRICT CLERK Veronica Vaughn CAUSE NO. DC-18-05560 MARY KAY, INC., § IN THE DISTRICT COURT § Plaintiff, § § v. § 116th JUDICIAL DISTRICT § xxxxx xxxxx xxxxxxx, § § Defendant. § DALLAS COUNTY, TEXAS Counter-Plaintiff. § ______________________________________/ DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, xxxxx xxxxx xxxxxxx (“Plaintiff”), in the above-styled and numbered cause, and files this Motion to Compel (the “Motion”), and would respectfully show the Court as follows: I. INTRODUCTION (Regarding Both Requests) A. Amended Second Request for Production On July 2, 2018, Defendant served her Amended Second Request for Production on Mary Kay, Inc. (“Plaintiff”). On July 29, 2018, Plaintiff served its Responses to Defendant’s Amended Second Request for Production.\ 1 The basis of Plaintiff’s objection is primarily one of relevance. In fact, Defendant provided the identical objection to each numbered request by contending as follows: Mary Kay objects to this Request because it is neither relevant to the subject matter of this lawsuit nor reasonably calculated to lead to the discovery of admissible 1 A true and correct copy of PlaintiffMary Kay, Inc.’s Responses toDefendant’s Second Requests for Production is attached hereto as Exhibit “A” and incorporated herein by reference as if set forth in full. DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 1 evidence. Mary Kay objects to this request to the extent it seeks documents protected by the attorney-client privilege, work product privilege, or other applicable privileges. Mary Kay also objects to this request as harassing because the document request is for the improper purpose of involving a nonparty whose actions are not relevant to this lawsuit. [Name of alleged comparator] is not a party to this litigation, and no allegation exists in either Mary Kay’s petition or Defendant’s counterclaim that Ms. Banks has taken any action or refrained from taking any action that caused Defendant to breach her agreements with Mary Kay or that caused Mary Kay to stop payment of Defendant’s FSP payments. Furthermore, Defendant’s conduct is the relevant benchmark to determine whether she breached her obligations under her NSD Agreement, as amended, and the Family Security Plan. Mary Kay also objects because this request is not limited by a relevant time period or scope of persons solicited or promoted to and therefore is overbroad. Based on such, Plaintiff Mary Kay has refused to produce any responsive documents whatsoever to Defendant’s Amended Second Request. B. Third Request for Production On January 9, 2019, Defendant served her Third Request for Production on Plaintiff. To date, the Plaintiff has filed responses that are either incomplete by stating that, despite objections, “Mary Kay will produce non-privileged documents that are relevant to this Request, if any…;” or objecting on grounds of relevancy and refusing to produce any documents whatsoever in response to the numbered request.\ 2 The former response was given in response to Requests numbered 2 - 4, 7 – 12, and 14, while the latter response was invoked to Requests numbered 1, 5 and 6. Defendant claims no documents exist in response to Request number 13. During the hearing on Defendant’s Motion to Compel Corporate Representative Depositions held on January 9, 2019 (which this Court granted in large part), the Court stated that comparator discovery was not yet relevant or “ripe” because the claim for religious discrimination and retaliation, although alluded to, was not yet raised in Defendant xxxxxxx’ Counterclaims. However, since the date of that hearing, Defendant filed her First Amended 2 A true and correct copy of PlaintiffMary Kay, Inc.’sResponses to Defendant’s Third Requests for Production is attached hereto as Exhibit “B” and incorporated herein by reference as if set forth in full. DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 2 Counterclaim and Application for Permanent Injunctive Relief on February 25, 2019 asserting claims for: a) Breach of Contract (Count I); b) Breach of Fiduciary Duty (Count II (new claim); c) Unlawful Religious Discrimination Under the FCRA (Count III – new clam); d) Unlawful Retaliation Under the FCRA (Count IV – new claim); and e) Permanent Injunction (Count V). Because the Defendant has now raised claims for which the discovery sought is relevant for the prosecution of her Counterclaims, Defendant needs to depose Plaintiff’s and the FSP’s corporate representatives on the topics identified and have the Plaintiff produce the requested documents, rather than being permitted to stand by its numerous baseless objections. Accordingly, Defendant requests that the Court overrule all of Plaintiff’s objections and compel Plaintiff to produce responsive documents within 5 days of the Court’s order. II. ARGUMENT AND AUTHORITIES A. The Court Is Authorized to Compel Discovery The ultimate 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.”\ 3 Thus, relevant discovery includes any information that is relevant or reasonably calculated to lead to the discovery of admissible evidence.\ 4 When a party serves written discovery seeking items relating to relevant topics, the 3 In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex.1998); Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex.1984) (same). 4 See TEX. R. CIV. P. 192.3(a); TEX. R. EVID. 401; Jampole, 673 S.W.2d at 573 (Tex.1984) (“To increase the likelihood that all relevant evidence will be disclosed and brought before the trier of fact, . . . discoverable evidence to include[s] anything reasonably calculated to lead to the discovery of admissible material.”). DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 3 responding party is required to produce all responsive documents and things “within the person’s possession, custody, or control.”\ 5 “The phrase ‘possession, custody, or control,’ within the meaning of [TRCP 192.7(b)], includes not only actual physical possession, but constructive possession, and the right to obtain possession from a third party, such as an agent or representative.”\ 6 Furthermore, “when responding to written discovery, a party must make a complete response, based on all information reasonably available to the responding party or its attorney at the time the response is made.” \ 7 The party seeking to avoid making discovery bears the burden of demonstrating that the court should exclude the discovery sought.\ 8 Rule 193.2 requires the objecting party to “state specifically the legal or factual basis” for each objection.\ 9 Valid objections that are obscured by unfounded objections are waived unless the objecting party can show good cause.\ 10 Moreover, when a party fails to respond it waives all objections and claims of privilege.\ 11 Where a party refuses to produce items in response to a relevant discovery requests, Rule 215.1 authorizes courts to enter orders compelling discovery. Courts are also authorized to award expenses relating to securing the opposing party’s compliance with the rules of discovery.\ 12 5 TEX. R. CIV. P. 192.3(b); see also TEX. R. CIV. P. 192.7(b) (defining “possession, custody, and control”). 6 GTE Comm. Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993). 7 See Tex. R. Civ. P. 193.1. 8 See TEX. R. CIV. P. 192.4; Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986); General Electric Co. v. Salinas, 861 S.W.2d 20, 23 (Tex.App. – Corpus Christi 1993, no writ). 9 TEX. R. CIV. P. 193.2(a). 10 See TEX. R. CIV. P. 193.2(c) and (e). 11 See TEX. R. CIV. P. 193.2(e); see, e.g., Hobson v. Moore, 734 S.W.2d 340, 341 (Tex. 1987). 12 See TEX. R. CIV. P. 215.1(d) (“If the motion is granted, the court shall . . . require a party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 4 B. The Court Should Compel Defendants to Respond to Plaintiffs’ Discovery Prior to agreeing to produce any responses and/or documents in response to Defendant’s First Request, Plaintiff’s counsel insisted upon entry of an Agreed Protective Order. Counsel for both parties negotiated in good faith regarding same and came to an agreement on all terms, which resulted in the Agreed Protective Order and Joint Motion for same filed on July 12, 2018. Defendant’s discovery requests were narrowly tailored and targeted to seek only relevant information reasonably calculated to get to the heart of Plaintiff’s claims and Defendant’s defenses and counterclaims. Plaintiff has nevertheless failed without excuse to properly respond in accordance with the Texas Rules of Civil Procedure. 1. Defendant’s Amended Second Request for Production. Requests Nos. 6-15 – These requests sought documents, emails, or communications maintained by Plaintiff Mary Kay concerning any action(s) whatsoever (including but not limited to a warning, discipline, etc.) taken against: a. Plaintiff’s National Sales Director, Gloria Mayfield Banks (RTP 6); b. Plaintiff’s former National Sales Director, Jeanie Martin (RTP 7); c. Plaintiff’s National Sales Director, Caterina Harris Earl (RTP 8); d. Plaintiff’s National Sales Director, Crisette Ellis (RTP 9); e. Plaintiff’s National Sales Director, Cecilia James (RTP 10); f. Plaintiff’s National Sales Director, Dacia Weigandt (RTP 11); g. Plaintiff’s National Sales Director, Dawn Otten Sweeney (RTP 12); h. Plaintiff’s National Sales Director, Andrea Newman Scott (RTP 13); them to pay, at such time as ordered by the court, the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.”). DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 5 i. Plaintiff’s National Sales Director, Lia Carta (RTP 14), and j. Plaintiff’s National Sales Director, Kimberly Copeland (RTP 15) Each request sought “copies of any and all documents, emails, or communication of any kind or type maintained by Plaintiff Mary Kay concerning any action(s) whatsoever (including but not limited to a warning, discipline, etc.) taken against [the individual]” by Plaintiff for soliciting for donations not related to Mary Kay, soliciting for sales of either her personal items (i.e. non- Mary Kay related), or the sale of items or services made or manufactured by another person, actively promoting goods, services or talents of individuals that are not within the Mary Kay organization, and/or publicly promoting paid training sessions or seminars for which she conducted. For each person identified in the requests, Defendant attached as exhibits documents illustrating conduct by the person identified, which is the same or similar to the conduct that Plaintiff alleges that Defendant “breached her obligations under her NSD Agreement, as amended, and the Family Security Plan.” To each of these requests, Plaintiff asserted the myriad of objections noted above, namely, overly broad and burdensome, vague and ambiguous, relevance, specificity, etc. Plaintiff’s objections are improper and lack any merit. Each of these requests are narrowly tailored to any actions taken by Plaintiff against similarly situated individuals as Defendant, based upon specific acts as set forth by actual examples attached as exhibits to the Requests (See Exhibits “A” through “H” to Defendant’s Second Request.) As such, the requests seek relevant information limited to claims and defenses of this lawsuit. Such comparator evidence is relevant and discoverable in light of Defendant’s First Amended Counterclaim and Application for Permanent Injunctive Relief filed on February 25, 2019. DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 6 As this Court is aware, to establish a prima facie case of discrimination based on disparate treatment, a plaintiff must show that she was (1) a member of a protected class, (2) qualified for the employment position at issue, (3) subject to an adverse employment action, which includes termination, and (4) treated less favorably than similarly situated members outside of the protected class.” Harris County v. Bankhead, 2014 Tex. App. LEXIS 13906, *8-9 (emphasis added); citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). See also McKenna v. Baylor Coll. of Med., 2016 Tex. App. LEXIS 4460 *11-13; 2016 WL 1714870. As the Bankhead Court stated further, With regard to the fourth element, “an employee who proffers a fellow employee as a comparator [must] demonstrate that the employment actions at issue were taken ‘under nearly identical circumstances.’” See Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259-60 (5th Cir. 2009). The Texas Supreme Court has held that employees are similarly situated “if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct.” Monarrez, 177 S.W.3d at 917. Id. at *9, 10. Therefore, Defendant is in need of the comparator evidence to help establish two of her claims, religious discrimination and retaliation for exercising their faith, as pled in paragraphs 63, 64 and 80 of her First Amended Counterclaim. Without being provided this discovery, which is in the sole possession of Plaintiff, Defendant will be prejudiced and prevented from putting forth evidence in support of her claim for discrimination. Notably, and contrary to Plaintiff’s contentions, the documents sought are also relevant as they go the issue of waiver, a potential and available defense for Defendant to the breach of contract assertions by Plaintiff in this matter. Furthermore, Defendant and her counsel need such responses and records to prepare for the upcoming Plaintiff and FSP corporate representatives depositions already scheduled for June DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 7 6, 2019, as they relate to relevant defenses in this action. Plaintiff’s “stall” tactics are unwarranted, gamesmanship, and prejudicial to Defendant and should not be permitted. Thus, each of Plaintiff’s objections should be overruled. Therefore, Defendant requests that the Court overrule all of Plaintiff’s objections and require Plaintiff to produce all responsive documents within 7 days of the Court’s order. 2. Defendant’s Third Request for Production As noted, supra, the Plaintiff has filed responses to Defendant’s Third Request that are either incomplete by stating that, despite objections, “Mary Kay will produce non-privileged documents that are relevant to this Request, ifany… to Requests numbered 2 - 4, 7 – 12, and 14;” and has objected on grounds of relevancy and refusing to produce any documents whatsoever in response to Requests numbered 1, 5 and 6. Plaintiff claims no documents exist in response to Request number 13. Defendant’s counsel has followed up with Plaintiff’s counsel several times and has been told that Plaintiff will “check on” or is “working on” the production. More than three (3) months have now passed since the due date for Plaintiff’s response on February 8, 2019. Accordingly, Plaintiff should be compelled to produce the documents that it indicated would be produced immediately. Regarding Requests Number 1, 5 and 6 of the Third Request, the requests and responses were as follows: REQUEST FOR PRODUCTION NO. 1: Please produce any and all Company policies and procedures for dealing with National Sales Directors who violate the restrictive covenants in their Independent National Sales Director Agreement. RESPONSE: Mary Kay objects to this Request as seeking irrelevant information that is not reasonably calculated to lead to the discovery of admissible evidence. This lawsuit DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 8 concerns only xxxxxxx’ violations of her contractual agreements with Mary Kay, and the Court has previously ruled—on numerous occasions—that discovery in this case be limited to those violations. This Request represents another improper attempt to circumvent those rulings. Mary Kay further objects to this Request as vague and ambiguous, particularly with respect to the phrase “policies and procedures.” Mary Kay will not search for or produce documents in response to this Request. REQUEST FOR PRODUCTION NO. 5: Please produce all communications, including e-mails, between the Company and its National Sales Directors concerning Defendant from January 1, 2017 to the present. RESPONSE: Mary Kay objects to this Request as seeking irrelevant information that is not reasonably calculated to lead to the discovery of admissible evidence. Mary Kay further objects to this Request as overbroad in scope to the extent it seeks “all communications.” Mary Kay further objects to this Request as vague and ambiguous, particularly as it relates to the term “concerning.” Mary Kay’s communications with its NSDs broadly regarding “Defendant”—and dating as far back as January 1, 2017—are irrelevant to the question of whether Defendant breached her agreements with the Company. Mary Kay has already produced relevant documents between the Company and its NSDs that concern xxxxxxx’ alleged breaches-in-suit. Mary Kay will not produce additional documents in response to this Request. REQUEST FOR PRODUCTION NO. 6: Please produce all internal communications, including e-mails, between the Company’s officers and directors concerning Defendant from January 1, 2017 to the present. RESPONSE: Mary Kay objects to this Request as seeking irrelevant information that is not reasonably calculated to lead to the discovery of admissible evidence. Mary Kay further objects to this Request as overbroad in scope to the extent it seeks “all internal communications.” Mary Kay further objects to this Request as vague and ambiguous, particularly as it relates to the term “concerning.” Mary Kay’s communications with its “officers and directors” broadly regarding “Defendant”—and dating as far back as January 1, 2017—are irrelevant to the question of whether Defendant breached her agreements with the Company. Mary Kay will not produce additional documents in response to this Request beyond those categories of documents identified above and/or below. Respectfully, Plaintiff’s objections are meritless. Defendant is seeking documents directly related and relevant to Plaintiff’s breach of contract claim and Defendant’s counterclaims for breach of fiduciary duty and religious discrimination. Regarding Request No. 1, Defendant should clearly be entitled to determine what policies and procedures, if any, DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 9 Plaintiff has for addressing “National Sales Directors [such as Defendant] who [allegedly] violate the restrictive covenants in their Independent National Sales Director Agreement.” Frankly, Plaintiff’s objection and refusal to produce such documents illustrates Plaintiff’s discovery abuses. If Plaintiff has no such documents, then the proper response would be to state as much rather than to assert baseless objections thereby causing Defendant to incur needless attorney’s fees and expenses. Documents in response to Request No. 5 (external communications regarding Defendant) and No. 6 (internal communications between Plaintiff’s officers and directors concerning Defendant) are relevant and should be produced, as such communications directly relate to Plaintiff’s allegation that Defendant has: sent mass emails to Mary Kay independent sales force members promoting her "health and wellness podcast" and soliciting business for John Monhollon, M.D. of the Florida Integrated Medical Center in Sarasota, by not only promoting his medical services but also offering to schedule appointments with the doctor, including scheduling a series of B12 shots…[and by doing so] [Defendant] xxxxxxx [allegedly] violated promise (a) not to promote, distribute or sell to other members of the Mary Kay sales organization; and (b) not to engage in recruiting Mary Kay Beauty Consultants, Sales Directors, or National Sales Directors, or to use any names, mailing lists, or other information which she obtained during her association with Mary Kay. See paragraphs 22 and 24 of Plaintiff’s Amended Verified Original Petition. This discovery is also relevant to Defendants’ counterclaims for breach of fiduciary duty and discrimination as these communications will likely demonstrate the disparate treatment of Defendant by Plaintiff. The discovery that Defendant is seeking under Requests Nos. 1, 5 and 6 is relevant. Without such discovery, which is in the sole possession of Plaintiff, Defendant will be prejudiced in the defense of the claims against her and in the prosecution of her counterclaims. Accordingly, Defendant requests that the Court overrule all of Plaintiff’s objections and require Plaintiff to produce all responsive documents within 7 days of the Court’s order. DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 10 III. CONCLUSION Defendant’s discovery requests seek relevant information. Moreover, Defendant’s discovery requests were narrowly tailored to seek only information relevant to the claims and defenses asserted in this lawsuit. Plaintiff has provided incomplete, confounded and misleading responses in violation of the Texas Rules of Civil Procedure. Accordingly, Defendant requests that the Court compel Plaintiff to comply with the Texas Rules of Civil Procedure as requested above. WHEREFORE PREMISES CONSIDERED, Defendant respectfully requests that the Court grant this Motion to Compel; overrule all of Plaintiff’s objections; require Plaintiff to produce all responsive documents to Defendant’s Amended Second Request for Production and Third Request for Production within 7 days of the Court’s order, and, for such other and further relief, both general and special, at law or in equity, to which Defendant may be justly entitled. DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 11 Respectfully submitted, FRIEDMAN & FEIGER, L.L.P. By: /s/ Ryan K. Lurich Ryan K. Lurich State Bar No. 24013070 rlurich@fflawoffice.com 5301 Spring Valley Road, Suite 200 Dallas, Texas 75254 (972) 788-1400 (Telephone) (972) 788-2667 (Telecopier) And /s/ Gary D. Wilson Gary D. Wilson* Florida Bar No. 0846406 gwilson@wilsonmccoylaw.com WILSON McCoy, P.A. Point 100 Building 100 E. Sybelia Avenue, Suite 205 Maitland, Florida 32751 (407) 803-5400 (Telephone) (407) 803-4617 (Telecopier) * Admitted Pro Hac Vice ATTORNEYS FOR DEFENDANT xxxxx CRUISE xxxxxxx DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 12 CERTIFICATE OF CONFERENCE This shall certify that the undersigned has conferred with counsel for Plaintiff regarding this motion to compel. Counsel for Plaintiff is opposed to the relief requested. Accordingly, this motion is being submitted to the Court for consideration. /s/ Gary D. Wilson Gary D. Wilson CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has been served upon all counsel of record on this the 10th day of May, 2019, in accordance with the Texas Rules of Civil Procedure. Christopher J. Schwegmann, Esq. Jared D. Eisenberg, Esq. Lynn Pinker Cox & Hurst, LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 (214) 981-3800 (Telephone) (214) 981-3839 (Telecopier) Jill Herz, Attorney at Law 430 Founders Square 900 Jackson Street Dallas, Texas 75202 214-745-4567 (Telephone) 214-745-1156 (Telecopier) /s/ Ryan K. Lurich Ryan K. Lurich #824118 DEFENDANT COUNTER-PLAINTIFF’S MOTION TO COMPEL RESPONSES TO DEFENDANT’S SECOND AND THIRD REQUESTS TO PRODUCE PAGE 13 EXHIBIT "A" 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 PLAINTIFF’S OBJECTIONS AND RESPONSES TO DEFENDANT’S SECOND REQUEST FOR PRODUCTION TO: Defendant, by and through her attorneys of record. Pursuant to TEXAS RULE OF CIVIL PROCEDURE 196, PLAINTIFF MARY KAY INC. serves its Objections and Responses to Defendant xxxxx xxxxx xxxxxxx’ Second Requests for Production of Documents as follows: I. OBJECTIONS AND RESPONSES TO REQUESTS FOR PRODUCTION REQUEST FOR PRODUCTION NO. 6: Please provide copies of any and all documents, emails, or communication of any kind or type maintained by Plaintiff Mary Kay concerning any action(s) whatsoever (including but not limited to a warning, discipline, etc.) taken against Plaintiff’s National Sales Director, Gloria Mayfield Banks, for any of the following actions: a) Soliciting for donations not related to Mary Kay; b) Soliciting for sales of either her personal items (i.e. non-Mary Kay related) or the sale of items or services made or manufactured by another person; c) Actively promoting goods, services or talents of individuals that are not within the Mary Kay organization; and/or d) Publicly promoting paid training sessions or seminars which she conducted, as illustrated in, but not solely limited to, Exhibit “A” hereto. RESPONSE: Mary Kay objects to this Request because it is neither relevant to the subject matter of this lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Mary Kay objects to this request to the extent it seeks documents protected by the attorney-client privilege, work product privilege, or other applicable privileges. Mary Kay also objects to this request as harassing because the document request is for the improper purpose of involving a nonparty whose actions are not relevant to this lawsuit. Gloria Mayfield Banks isnot a party to this litigation, and no allegation exists in either Mary Kay’s petition or Defendant’s counterclaim that Ms. Banks has taken any action or refrained from taking any action that caused Defendant to breach her agreements with Mary Kay or that caused Mary Kay to stop payment of Defendant’s FSP payments. Furthermore, Defendant’s conduct is the relevant benchmark to determine whether PLAINTIFF’S OBJECTIONS AND RESPONSES TO DEFENDANT’S SECOND REQUEST FOR PRODUCTION PAGE 1 she breached her obligations under her NSD Agreement, as amended, and the Family Security Plan. Mary Kay also objects because this request is not limited by a relevant time period or scope of persons solicited or promoted to and therefore is overbroad. REQUEST FOR PRODUCTION NO. 7: Please provide copies of any and all documents, emails, or communication of any kind or type maintained by Plaintiff Mary Kay concerning any action(s) whatsoever (including but not limited to a warning, discipline, etc.) taken against Plaintiff’s former National Sales Director, Jeanie Martin, for any of the following actions: a) Soliciting for donations not related to Mary Kay; b) Soliciting for sales of either her personal items (i.e. non-Mary Kay related) or the sale of items or services made or manufactured by another person; c) Actively promoting goods, services or talents of individuals that are not within the Mary Kay organization; and/or d) Publicly promoting paid training sessions or seminars which she conducted, as illustrated in, but not solely limited to, Exhibit “B” hereto. RESPONSE: Mary Kay objects to this Request because it is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Mary Kay objects to this request to the extent it seeks documents protected by the attorney-client privilege, work product privilege, or other applicable privileges. Mary Kay also objects to this request as harassing because the document request is for the improper purpose of involving a nonparty whose actions are not relevant to this lawsuit. Jeanie Martin is not a party to this litigation, and no allegation exists in either Mary Kay’s petition or Defendant’s counterclaim that Ms. Martin has taken any action or refrained from taking any action that caused Defendant to breach her agreements with Mary Kay or that caused Mary Kay to stop payment of Defendant’s FSP payments. Furthermore, Defendant’s conduct is the relevant benchmark to determine whether she breached her obligations under her NSD Agreement, as amended, and the Family Security Plan. Mary Kay also objects because this request is not limited by a relevant time period or scope of persons solicited or promoted to and therefore is overbroad. REQUEST FOR PRODUCTION NO. 8: Please provide copies of any and all documents, emails, or communication of any kind or type maintained by Plaintiff Mary Kay concerning any action(s) whatsoever (including but not limited to a warning, discipline, etc.) taken against Plaintiff’s National Sales Director, Caterina Harris Earl, for any of the following actions: a) Soliciting for donations not related to Mary Kay; b) Soliciting for sales of either her personal items (i.e. non-Mary Kay related) or the sale of items or services made or manufactured by another person; c) Actively promoting goods, services or talents of individuals that are not within the Mary Kay organization; and/or d) Publicly promoting paid training sessions or seminars which she conducted, 6 as illustrated in, but not solely limited to, Exhibit “C” hereto. RESPONSE: Mary Kay objects to this Request because it is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Mary Kay objects to this request to the extent it seeks documents protected by the attorney-client privilege, work product privilege, or other applicable privileges. Mary Kay also objects to this request as harassing because the document request is for the improper purpose of involving a nonparty whose actions are not relevant to this lawsuit. Caterina Harris Earl is not a party to this litigation, and no allegation exists in either Mary Kay’s petition or Defendant’s counterclaim that Ms. Earl has taken any action or refrained from taking any action that caused Defendant to breach her agreements with Mary Kay PLAINTIFF’S OBJECTIONS AND RESPONSES TO DEFENDANT’S SECOND REQUEST FOR PRODUCTION PAGE 2 or that caused Mary Kay to stop payment of Defendant’s FSP payments. Furthermore, Defendant’s conduct is the relevant benchmark to determine whether she breached her obligations under her NSD Agreement, as amended, and the Family Security Plan. Mary Kay also objects because this request is not limited by a relevant time period or scope of persons solicited or promoted to and therefore is overbroad. REQUEST FOR PRODUCTION NO. 9: Please provide copies of any and all documents, emails, or communication of any kind or type maintained by Plaintiff Mary Kay concerning any action(s) whatsoever (including but not limited to a warning, discipline, etc.) taken against