On March 25, 2021 a
Complaint,Petition
was filed
involving a dispute between
Baldwin, Richard F,
Oak Creek Investments Llc,
and
Atlas Frm Llc,
Bennett, Chris,
Bursky, Andrew M,
Dinning, Tanya,
Liebich, Kurt,
New Wood Resources Llc,
Winston Plywood & Veneer Llc,
Wpv Holdco Llc,
for OTHER (CIVIL)
in the District Court of Dallas County.
Preview
FILED
12/7/2021 10:33 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Margaret Thomas DEPUTY
CAUSE NO. DC-21-04011
IN RE: § IN THE DISTRICT COURT
§
PETITION OF OAK CREEK § 162ND JUDICIAL DISTRICT
INVESTMENTS, LLC AND §
RICHARD F. BALDWIN, PH.D. § DALLAS COUNTY, TEXAS
RESPONDENTS’ OBJECTIONS TO RULE 202 PETITION
Respondents Atlas Holdings LLC (“Atlas”), New Wood Resources LLC (“NWR”),
Winston Plywood and Veneer LLC (“WPV”), WPV Holdco LLC (“WPV Holdco”), Andrew M.
Bursky, Chris Bennett, Tanya Dinning, and Kurt Liebich (“Respondents“) file these objections to
Petitioners’ Rule 202 Petition and respectfully state:
Introduction
The Rule 202 Petition is an impermissible attempt to relitigate claims Respondents already
lost—at the pleading stage—in a Delaware court. This Court should sustain Respondents’
objections, dismiss the Rule 202 Petition, and allow litigation in Delaware to proceed unimpeded
by Petitioners’ gamesmanship.
Legal Standard
“Rule 202 depositions are not now and never have been intended for routine use.” In re
Jorden, 249 S.W.3d 416, 423 (Tex. 2008). Texas courts “strictly limit and carefully supervise pre-
suit discovery to prevent abuse of the rule.” In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011). Rule
202 “restricts discovery in depositions to ‘the same as if the anticipated suit or potential claim had
been filed.”’ Id. (quoting Tex. R. Civ. P. 202.5).
1
Individual Respondents Andrew M. Bursky, Tanya Dinning, and Kurt Liebich previously filed a Rule
1203 Special Appearance, and all Respondents previously filed a Motion to Dismiss pursuant to the Texas
Citizens’ Participation Act. These objections are subject to and without waiver of those filings.
Respondents’ Objections to Rule 202 Petition — Page 1
Objections to Petition
Respondents assert the following objections to Petitioners’ Rule 202 Petition:
1. Respondents object to the Rule 202 Petition because the subject matter of the claims
it seeks to investigate is in active litigation in Delaware? As a result, there is no “potential claim
or suit,” Tex. R. Civ. P. 202.1, that could be filed in Texas. Such a claim would be barred under
principles of res judicata and collateral estoppel, as well as under the compulsory counterclaim
rule. Indeed, Petitioners have already filed — and lost — counterclaims in Delaware.
2. Respondents object to the Rule 202 Petition as improperly seeking to investigate
claims within the exclusive jurisdiction of the federal courts. Rule 202 may not be used “to
investigate a [claim] which can only be brought in federal court.” In re Doe, 444 S.W.3d 603, 608
(Tex. 2014). Petitioners ask the Court to allow investigation of claims “under the anti-fraud
provisions of the Securities Exchange Act of 1934,”3 but those claims are within the exclusive
jurisdiction of the federal courts. Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 578
U.S. 374, 380 (2016).
3. Respondents object to the Rule 202 Petition because it is not supported by a
showing that the requested deposition will “prevent a failure or delay of justice.” Tex. R. Civ. P.
202.4(a)(1). Petitioners have utterly failed to explain why they could not take (or have previously
taken) the requested depositions in the Delaware litigation.
4. Respondents object to the Rule 202 Petition because any benefit to be derived from
the requested depositions will be significantly outweighed by their burden and expense. Tex. R.
2
See Respondents’ TCPA Motion to Dismiss (explaining the status of the Delaware litigation and attaching
claims asserted by Petitioners and the Delaware Court’s order dismissing them). Respondents incorporate
herein by reference pursuant to Rule 58, Tex. R. Civ. P., the content of that motion and its attachments.
3
Rule 202 Petition at p. 4.
Respondents’ Objections to Rule 202 Petition — Page 2
Civ. P. 202.4(a)(2). Proceeding before this Court unnecessarily creates a multiplicity of litigation.
If Petitioners Wish to take a deposition, they should ask the Delaware Court to allow it.
5. Respondents object to the Rule 202 Petition because it fails to explain to the Court
“the substance of the testimony that petitioner expects to elicit from each [deponent], and the
petitioner’s reasons for desiring to obtain the testimony.” Tex. R. Civ. P. 202.2(g). Given the
Court’s obligation to “strictly limit” pre-suit depositions, Wolfe, 341 S.W.3d at 933, any request
for eight pre-suit depositions necessarily must be supported by a fulsome explanation of what those
eight deponents might say, and why Petitioners seek that testimony in this Court — as opposed to
one of the myriad other courts involved in the parties’ dispute.
6. Respondents object to Exhibit A to the Rule 202 Petition — seeking the production
of documents — because Rule 202 does not provide for such discovery.
Prayer
Wherefore, Respondents respectfully request that the Court sustain these objections,
dismiss the Rule 202 Petition, award them their reasonable and necessary attorneys’ fees incurred,
and grant such other relief as to which the Court finds them justly entitled.
Respectfully submitted,
/s/ Jason M. Hopkins
Robert M. Hoffinan
Texas Bar No. 09788200
Jason M. Hopkins
Texas Bar No. 24059969
DLA Piper, LLP
1900 N. Pearl Street, Suite 2200
Dallas, Texas 75201
Tel: (214) 743-4500
Fax: (214) 743-4545
Email: Jason.Hopkins@DLAPiper.com
ATTORNEYS FOR RESPONDENTS
Respondents’ Objections to Rule 202 Petition — Page 3
CERTIFICATE OF SERVICE
I hereby certify that I served the foregoing objections on all counsel of record pursuant to
the Texas Rules of Civil Procedure on December 7, 2021.
/s/ Jason M. Hopkins
Jason M. Hopkins
Respondents’ Objections to Rule 202 Petition — Page 4
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Sherry Faulkner on behalf of Jason Hopkins
Bar No. 24059969
sherry.faulkner@dlapiper.com
Envelope ID: 59775565
Status as of 12/7/2021 10:42 AM CST
Associated Case Party: OAK CREEK INVESTMENTS LLC
Name BarNumber Email TimestampSubmitted Status
Ryan Cole rcole@spencerfane.com 12/7/2021 10:33:09 AM SENT
John Browning jbrowning@spencerfane.com 12/7/2021 10:33:09 AM SENT
Melissa Resa mresa@spencerfane.com 12/7/2021 10:33:09 AM SENT
chris gilbert chris.gilbert@gilbertpclaw.com 12/7/2021 10:33:09 AM SENT
Associated Case Party: ATLAS FRM LLC
Name BarNumber Email TimestampSubmitted Status
Jason Hopkins jason.hopkins@us.dlapiper.com 12/7/2021 10:33:09 AM SENT
Sherry Faulkner sherry.faulkner@us.dlapiper.com 12/7/2021 10:33:09 AM SENT
Judi Wilkerson judi.wi|kerson@us.dlapiper.com 12/7/2021 10:33:09 AM SENT
Robert Hoffman robert.hoffman@us.dlapiper.com 12/7/2021 10:33:09 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
CHRIS GILBERT chris.gilbert@gilbertpclaw.com 12/7/2021 10:33:09 AM SENT
Ryan Cole rcole@spencerfane.com 12/7/2021 10:33:09 AM SENT
John Browning jbrowning@spencerfane.com 12/7/2021 10:33:09 AM SENT
Melissa Resa mresa@spencerfane.com 12/7/2021 10:33:09 AM ERROR
Jason Hopkins jason.hopkins@dlapiper.com 12/7/2021 10:33:09 AM SENT
Sherry Faulkner sherry.fauIkner@us.dlapiper.com 12/7/2021 10:33:09 AM SENT
Preview
FILED 12/7/2021 10:33 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Margaret Thomas DEPUTY CAUSE NO. DC-21-04011 IN RE: § IN THE DISTRICT COURT § PETITION OF OAK CREEK § 162ND JUDICIAL DISTRICT INVESTMENTS, LLC AND § RICHARD F. BALDWIN, PH.D. § DALLAS COUNTY, TEXAS RESPONDENTS’ OBJECTIONS TO RULE 202 PETITION Respondents Atlas Holdings LLC (“Atlas”), New Wood Resources LLC (“NWR”), Winston Plywood and Veneer LLC (“WPV”), WPV Holdco LLC (“WPV Holdco”), Andrew M. Bursky, Chris Bennett, Tanya Dinning, and Kurt Liebich (“Respondents“) file these objections to Petitioners’ Rule 202 Petition and respectfully state: Introduction The Rule 202 Petition is an impermissible attempt to relitigate claims Respondents already lost—at the pleading stage—in a Delaware court. This Court should sustain Respondents’ objections, dismiss the Rule 202 Petition, and allow litigation in Delaware to proceed unimpeded by Petitioners’ gamesmanship. Legal Standard “Rule 202 depositions are not now and never have been intended for routine use.” In re Jorden, 249 S.W.3d 416, 423 (Tex. 2008). Texas courts “strictly limit and carefully supervise pre- suit discovery to prevent abuse of the rule.” In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011). Rule 202 “restricts discovery in depositions to ‘the same as if the anticipated suit or potential claim had been filed.”’ Id. (quoting Tex. R. Civ. P. 202.5). 1 Individual Respondents Andrew M. Bursky, Tanya Dinning, and Kurt Liebich previously filed a Rule 1203 Special Appearance, and all Respondents previously filed a Motion to Dismiss pursuant to the Texas Citizens’ Participation Act. These objections are subject to and without waiver of those filings. Respondents’ Objections to Rule 202 Petition — Page 1 Objections to Petition Respondents assert the following objections to Petitioners’ Rule 202 Petition: 1. Respondents object to the Rule 202 Petition because the subject matter of the claims it seeks to investigate is in active litigation in Delaware? As a result, there is no “potential claim or suit,” Tex. R. Civ. P. 202.1, that could be filed in Texas. Such a claim would be barred under principles of res judicata and collateral estoppel, as well as under the compulsory counterclaim rule. Indeed, Petitioners have already filed — and lost — counterclaims in Delaware. 2. Respondents object to the Rule 202 Petition as improperly seeking to investigate claims within the exclusive jurisdiction of the federal courts. Rule 202 may not be used “to investigate a [claim] which can only be brought in federal court.” In re Doe, 444 S.W.3d 603, 608 (Tex. 2014). Petitioners ask the Court to allow investigation of claims “under the anti-fraud provisions of the Securities Exchange Act of 1934,”3 but those claims are within the exclusive jurisdiction of the federal courts. Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 578 U.S. 374, 380 (2016). 3. Respondents object to the Rule 202 Petition because it is not supported by a showing that the requested deposition will “prevent a failure or delay of justice.” Tex. R. Civ. P. 202.4(a)(1). Petitioners have utterly failed to explain why they could not take (or have previously taken) the requested depositions in the Delaware litigation. 4. Respondents object to the Rule 202 Petition because any benefit to be derived from the requested depositions will be significantly outweighed by their burden and expense. Tex. R. 2 See Respondents’ TCPA Motion to Dismiss (explaining the status of the Delaware litigation and attaching claims asserted by Petitioners and the Delaware Court’s order dismissing them). Respondents incorporate herein by reference pursuant to Rule 58, Tex. R. Civ. P., the content of that motion and its attachments. 3 Rule 202 Petition at p. 4. Respondents’ Objections to Rule 202 Petition — Page 2 Civ. P. 202.4(a)(2). Proceeding before this Court unnecessarily creates a multiplicity of litigation. If Petitioners Wish to take a deposition, they should ask the Delaware Court to allow it. 5. Respondents object to the Rule 202 Petition because it fails to explain to the Court “the substance of the testimony that petitioner expects to elicit from each [deponent], and the petitioner’s reasons for desiring to obtain the testimony.” Tex. R. Civ. P. 202.2(g). Given the Court’s obligation to “strictly limit” pre-suit depositions, Wolfe, 341 S.W.3d at 933, any request for eight pre-suit depositions necessarily must be supported by a fulsome explanation of what those eight deponents might say, and why Petitioners seek that testimony in this Court — as opposed to one of the myriad other courts involved in the parties’ dispute. 6. Respondents object to Exhibit A to the Rule 202 Petition — seeking the production of documents — because Rule 202 does not provide for such discovery. Prayer Wherefore, Respondents respectfully request that the Court sustain these objections, dismiss the Rule 202 Petition, award them their reasonable and necessary attorneys’ fees incurred, and grant such other relief as to which the Court finds them justly entitled. Respectfully submitted, /s/ Jason M. Hopkins Robert M. Hoffinan Texas Bar No. 09788200 Jason M. Hopkins Texas Bar No. 24059969 DLA Piper, LLP 1900 N. Pearl Street, Suite 2200 Dallas, Texas 75201 Tel: (214) 743-4500 Fax: (214) 743-4545 Email: Jason.Hopkins@DLAPiper.com ATTORNEYS FOR RESPONDENTS Respondents’ Objections to Rule 202 Petition — Page 3 CERTIFICATE OF SERVICE I hereby certify that I served the foregoing objections on all counsel of record pursuant to the Texas Rules of Civil Procedure on December 7, 2021. /s/ Jason M. Hopkins Jason M. Hopkins Respondents’ Objections to Rule 202 Petition — Page 4 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Sherry Faulkner on behalf of Jason Hopkins Bar No. 24059969 sherry.faulkner@dlapiper.com Envelope ID: 59775565 Status as of 12/7/2021 10:42 AM CST Associated Case Party: OAK CREEK INVESTMENTS LLC Name BarNumber Email TimestampSubmitted Status Ryan Cole rcole@spencerfane.com 12/7/2021 10:33:09 AM SENT John Browning jbrowning@spencerfane.com 12/7/2021 10:33:09 AM SENT Melissa Resa mresa@spencerfane.com 12/7/2021 10:33:09 AM SENT chris gilbert chris.gilbert@gilbertpclaw.com 12/7/2021 10:33:09 AM SENT Associated Case Party: ATLAS FRM LLC Name BarNumber Email TimestampSubmitted Status Jason Hopkins jason.hopkins@us.dlapiper.com 12/7/2021 10:33:09 AM SENT Sherry Faulkner sherry.faulkner@us.dlapiper.com 12/7/2021 10:33:09 AM SENT Judi Wilkerson judi.wi|kerson@us.dlapiper.com 12/7/2021 10:33:09 AM SENT Robert Hoffman robert.hoffman@us.dlapiper.com 12/7/2021 10:33:09 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status CHRIS GILBERT chris.gilbert@gilbertpclaw.com 12/7/2021 10:33:09 AM SENT Ryan Cole rcole@spencerfane.com 12/7/2021 10:33:09 AM SENT John Browning jbrowning@spencerfane.com 12/7/2021 10:33:09 AM SENT Melissa Resa mresa@spencerfane.com 12/7/2021 10:33:09 AM ERROR Jason Hopkins jason.hopkins@dlapiper.com 12/7/2021 10:33:09 AM SENT Sherry Faulkner sherry.fauIkner@us.dlapiper.com 12/7/2021 10:33:09 AM SENT