Motion to Set Hearing in BIOTE MEDICAL, LLC vs. JOHN THOMAS, MD, et al| Trellis.Law

On July 23, 2018 a Hearing was filed involving a dispute between Biote Medical, Llc, and J.A.A. Enterprises, Llc, Mcrae, Melissa, Do, Thomas, John, Md, for OTHER (CIVIL) in the District Court of Dallas County.

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FILED
DALLAS COUNTY
10/15/2018 2:43 PM
FELICIA PITRE
DISTRICT CLERK

CAROLYN SELLERS

CAUSE NO. DC-18-09503

BIOTE MEDICAL, LLC, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § 191st JUDICIAL DISTRICT
§
JOHN THOMAS, M.D., J.A.A. §
ENTERPRISES, LLC d/b/a SOUTH §
PLAINS LINDSEY’S DAY SPA, and §
MELISSA MCRAE, D.O., §
§
Defendants. § DALLAS COUNTY, TEXAS

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, BioTE Medical, LLC (“Plaintiff” or “BioTE”) and files this Motion for

Expedited Discovery under TEX. CIV. PRAC. & REM. CODE 27.006(b) and Motion for Continuance of

Hearing on Motion to Dismiss Pursuant to TEX. CIV. PRAC. & REM. CODE 27.004(c) and, for cause,

would respectfully show the Court as follows:

I.
FACTUAL BACKGROUND

BioTE realleges and incorporates herein by reference BioTE’s Original Petition, Application

for Temporary Restraining Order and Injunctive Relief and Request for Disclosure as well as the

Motion to Dismiss filed by Defendants.

The Petition alleges the Defendants have conspired to convert BioTE’s trade secrets and

other confidential and proprietary information and are using that information to directly compete

signed to the contrary.

The facts set forth in the Verified Petition demonstrate Defendants’ knowing and intentional

breaches of contract and misappropriation of BioTE’s trade secrets and other confidential and

proprietary information.

In response, the Defendants have filed a Motion to Dismiss under the Texas Citizen’s

Participation Act, Tex. Civ. Prac. & Rem Code 27.001 (the “TCPA,” Commonly known as an anti-

SLAPP Motion) which, if applicable to the facts of this case, will likely require that the Plaintiff

produce prima-facie evidence of the elements of each challenged cause of action contained in the

Petition.

Unfortunately, the dismissal procedure and rigid timelines under TCPA Tex. Civ. Prac. &

Rem Code 27.001, in effect, appear to sanction what has traditionally known as a “speaking

demurrer," which has never been permitted by our Rules of Civil Procedure, past or present. See

McFarland v. Reynolds, 513 SW 2d 620 (Tex. App.—Corpus Christi 1974) (citing McDonald,

Texas Civil Practice, Vol. 2, § 7.22). Nevertheless, the Plaintiffs must soldier forth, under the

provisions of the statute, to meet their burden under the TCPA.

In order to establish a conspiracy, the Texas Supreme Court has recognized the kind of proof

likely to be necessarily developed. In International Bankers Life Ins. Co. v. Holloway, 368 SW 2d

567 (Tex. 1963) the Court observed, an agreement or intent necessary to support a jury finding

usually must be inferred from the circumstantial evidence regarding the conduct of the parties, “It

was early said by this Court in Jernigan v. Wainer, 12 Tex. 189:

"When men enter into conspiracies, they are not likely to call in a witness * * * In such cases
the injured party must necessarily have recourse to circumstantial evidence. For it is only by

PLAINTIFF BIOTE MEDICAL, LLC’S MOTION FOR EXPEDITED
DISCOVERY UNDER TEX. CIV. PRAC. & REM. CODE 27.006(B) AND
MOTION FOR CONTINUANCE OF HEARING ON MOTION TO DISMISS
PURSUANT TO TEX. CIV. PRAC. & REM. CODE 27.004(C) PAGE 2
the inferences and deductions which men properly and naturally draw from the acts of others
in such cases, that their intentions can be ascertained. They are not likely to proclaim them in
the hearing of witnesses." (emphasis added)
And in Whitmore v. Allen, 33 Tex. 355, that "A conspiracy may be proven as well by the acts
of the conspirators, as by anything they may say, touching what they intended to do."
(emphasis added)

The general rule is that conspiracy liability is sufficiently established by proof showing
concert of action or other facts and circumstances from which the natural inference arises that
the unlawful, overt acts were committed in furtherance of common design, intention, or
purpose of the alleged conspirators. Texas Public Utilities Corp. et al. v. Edwards et al.,
Tex.Civ.App., 99 582*582 S.W.2d 420, wr. dism.; Hawthorne et al. v. Walton et al.,
Tex.Civ.App., 30 S.W.2d 397, wr. dism.; American Rio Grande Land & Irrigation Co. v.
Barker, Tex.Civ.App., 268 S.W. 506, no writ hist.; State v. Racine Sattley Co., 63
Tex.Civ.App. 663, 134 S.W. 400, no writ hist.; 12 Tex.Jur.2d § 22, p. 342; 11 Am.Jur. § 56,
p. 585; 15 C.J.S. Conspiracy § 29, pp. 1043-1045. (emphasis added)

BioTE seeks a limited deposition and written discovery on an expedited basis from John

Thomas, MD, J.A.A. Enterprises, LLC d/b/a South Plains Lindsey’s Day Spa, and Melissa McRae,

DO. The limited requests for production would focus on correspondence, communications, emails,

letters, contracts or agreements between the Defendants and Evexias/EvexiPEL, the competiting

company that Defendants are currently engaged with. Plaintiff also requests a limited deposition of

the corporate representative of Evexias Health Solutions/EvexiPEL to uncover the exact duties and

obligations between the Defendants and Evexias/EvexiPEL.

The expedited discovery sought herein is necessary: (i) to enable BioTE to prepare for the

response to the Defendants’ Motion to Dismiss. (ii) to prevent the destruction and disappearance of

evidence; (iii) to discover and identify the extent of Defendants’ and Third-Party Defendants’

breaches and misuse of BioTE’s information; (iv) and to discover the necessary proof.

A. Good Cause exists for an order granting limited expedited discovery and an extension
of the hearing until 120 from the service of the Motion to Dismiss.

“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.” Jampole v. Touchy, 673 S.W.2d 569 (1984)

See West v. Solito, 563 S.W.2d 240 (Tex.1978); Pearson Corp. v. Wichita Falls Boys Club Alumni

Ass'n, 633 S.W.2d 684 (Tex.App.Fort Worth 1982, no writ). For this reason, discovery is not limited

to information that will be admissible at trial. To increase the likelihood that all relevant evidence

will be disclosed and brought before the trier of fact, the law circumscribes a significantly larger

class of discoverable evidence to include anything reasonably calculated to lead to the discovery of

material evidence. Allen v. Humphreys, 559 S.W.2d 798, 803 (Tex.1977).

Good cause exists in that BioTE will suffer a deprivation of substantial rights, if it is not

allowed necessary discovery, together with time in which to conduct discovery, in response to the

Defendants’ TCPA motion.

The non-party deponent is also represented by the same counsel representing the Defendants.

Therefore, the usual concerns regarding the timing of third-party discovery are not present here.

Through depositions of these parties, BioTE will seed to get at the truth of the conspiracy and

communications between the conspirators.

Through its First Requests for Production of Documents, BioTE will seek information and

documents in the possession of Defendants relating to the subject matter of this litigation.

Accordingly, this Court should order the discovery requested in order that this motion may be

decided by what the facts reveal, rather than what they conceal. Jampole v. Touchy, 673 S.W.2d 569

As set forth above, this Court has expansive power in facilitating the discovery process.

Under the TCPA. Further, “discovery is favored and the rules pertaining to discovery must be

liberally construed.” State v. Clark, 695 S.W.2d 673, 675 (Tex.App.--Austin 1985, no writ

Therefore, because of the potential harm BioTE will suffer if discovery is not granted and

expedited; and because of the lack of harm or prejudice to Defendants and Third-Parties who are all

represented by Defendant’s counsel in this case, if expedited discovery is allowed; and, in

furtherance of the spirit of the liberal discovery process, this Court should exercise is discretion and

permit BioTE to obtain the expedited discovery from Defendants and Third-Party witnesses

according to the terms set forth in the attached Order.

B. Request for Relief.

Considering the need for relief and the availability of the Court’s power to expedite

discovery, BioTE respectfully prays this Court shorten the time required for notice of hearing in

order to immediately enter an Order Granting Motion for Expedited Discovery substantially in the

same form as the Order attached hereto. Further, BioTE requests the following specific relief:

(1) That all documents requested by BioTE through a request for production be made
available on 10 days’ notice, to as party and 20 days’ notice to a non-party,
(2) That BioTE be permitted to depose Defendant for the purposes of the issues to be
decided in the Motion to Dismiss, as well as any representative of
Evexias/EvexiPEL, on three (3) days notice, without limitation on BioTE’s right to
re-depose any individual or entity in preparation for trial;
(3) That the deadline by which to hear Defendant’s TCPA Motion be extended from 60
days to 120 days, making the deadline by which the TCPA Motion shall be heard
January 18, 2019; and
(4) For all such other and further relief to which BioTE may be entitled or this Court
deems proper.

FRIEDMAN & FEIGER, L.L.P.

By: /s/ Ryan K. Lurich
Lawrence J. Friedman
State Bar No. 07469300
lfriedman@fflawoffice.com
Ryan K. Lurich
State Bar No. 24013070
rlurich@fflawoffice.com
Martin R. Merritt
State Bar No. 13967560
mmerritt@fflawoffice.com
Eric M. Friedman
State Bar No. 24090106
efriedman@fflawoffice.com

5301 Spring Valley Road, Suite 200
Dallas, Texas 75254
(972) 788-1400 (Telephone)
(972) 788-2667 (Telecopier)

ATTORNEYS FOR PLAINTIFF
BIOTE MEDICAL, LLC

In accordance with LOCAL RULE 2.07(a) of the AMENDED LOCAL RULES OF THE CIVIL COURTS
OF DALLAS COUNTY, TEXAS, Counsel for Plaintiff personally conducted a conference with Counsel
for Defendant on October 12, 2018, at which time there was a substantive discussion of every item
presented to the Court in the foregoing Motion and, despite best efforts, Counsel have not been able
to resolve the matters presented.

/s/ Martin R. Merritt
MARTIN R. MERRITT

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of this pleading has been served on
all counsel of record on this the 15th day of October, 2018, in accordance with the Texas Rules of
Civil Procedure.

Gregory Clift, Esq.
Clouse Dunn, LLP
1201 Elm Street, Suite 5200
Dallas, Texas 75270-2142
(214) 220-3888 (Telephone)
(214) 220-3833 (Telecopier)

/s/ Ryan K. Lurich
Ryan K. Lurich

AFFIDAVIT OF MARTIN R. MERRITT

IN THE STATE OF TEXAS §
§
COUNTY OF DALLAS §

BEFORE ME, the undersigned authority, on this day personally appeared
Martin R. Merritt, known by me to be the person whose name is subscribed hereto and
who being by me first duly sworn under oath, states as follows:

1. “My name is Martin R. Merritt.

2. I am an attorney for Plaintiff BioTE Medical, LLC.

3. I have previously prepared a Response to an anti-SLAPP Motion to Dismiss in
a case involving an employee’s alleged theft of confidential information case and a
conspiracy to share this stolen material with a competitor.

4. In my opinion, it is necessary to depose the parties and the alleged
conspirators in order to properly develop a response to the anti-SLAPP Motion to Dismiss.
It is also necessary to research to this relatively new body of law, which appears to be ever -
evolving and requires greater research than more familiar motions. There are a number of
causes of action and each element of each cause will likely need to be briefed similar to a no-
evidence summary judgment with regard to every element.

5. The Discovery sought by Plaintiff is material to its response, as is the
testimony of the parties and their alleged conspirators. Written discovery will be aimed at
the activities of these conspirators and cannot be obtained, conducted or analyzed without
discovery.

PLAINTIFF BIOTE MEDICAL, LLC’S MOTION FOR EXPEDITED
DISCOVERY UNDER TEX. CIV. PRAC. & REM. CODE 27.006(B) AND
MOTION FOR CONTINUANCE OF HEARING ON MOTION TO DISMISS
PURSUANT TO TEX. CIV. PRAC. & REM. CODE 27.004(C) PAGE 8
6.
6. Because of
of the
the short-time
short-time frame under the
the rule,
rule, there
there is
is a need to
a need to extend
extend the
the
hearing
hearing on the
the anti-SLAPP Motion toto Dismiss to as
Dismiss to as close
close to
to the
the 120-day
12o-day maximum deadline
deadline
as
as permissible.
permissible.

7.
7. This
This continuance
continuance is
is not
not sought
sought for
for delay
delay only,
only, b

FURTHER AFFIANT SAYETH NOT."
FURTHERAFFIANT NOT.’
,
/

w ;

SWORN TO AND SUBSCRIBED before before me o
o · ctober 2018, to
certify
certify which
which witness
witness my hand and seal
seal of
of my office.
ofﬁce.

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LLC’S MOTION FOR EXPEDITED
PLAINTIFF BIOTE MEDICAL, LLC'S
27.006(B) AND
DISCOVERY UNDER TEX. CIV. PRAC. & REM. CODE 27.006(6)
MOTION FOR CONTINUANCE OF HEARING 0N MOTION TO DISMISS
HEARJNG ON
PURSUANT TO TEX. CIV. PRAC. & REM. CODE 27.004(C)
27.004(C) PAGE9
PAGE 9

Case Info

Judge

SLAUGHTER, GENA Track Judge’s New Case

Case No.

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Document Filed Date

October 23, 2018

Case Filing Date

July 23, 2018

County

Parties

BIOTE MEDICAL, LLC Plaintiff
CLIFT, GREGORY M Attorney for the Defendant
DUNN, R ROGGE Attorney for the Defendant
FRIEDMAN, ERIC M Attorney for the Plaintiff
FRIEDMAN, LAWRENCE J Attorney for the Plaintiff
J.A.A. ENTERPRISES, LLC Defendant
LURICH, RYAN K Attorney for the Plaintiff
MCRAE, MELISSA, DO Defendant
MERRITT, MARTIN RANDAL Attorney for the Plaintiff
THOMAS, JOHN, MD Defendant
Joshua Iacuone Attorneys for Defendants
John Lynch Attorney
Jeffrey Hellberg Attorneys for Defendants
Rusty OKane Attorney

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Hearing: BIOTE MEDICAL, LLC vs. JOHN THOMAS, MD, et al

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