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FILED
DALLAS COUNTY
1/14/2020 2:51 PM
FELICIA PITRE
DISTRICT CLERK
Kellie Juricek
CAUSE NO. DC-19-15964
CENTURION LOGISTICS LLC, IN THE DISTRICT COURT
directly and derivatively on behalf 0f
CENTURION PECOS TERMINAL LLC,
Plaintifif
vs.
OMOMOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOM
DALLAS COUNTY, TEXAS
IULES BRENNER;
S.
CLARK HILL PLC also doing business as
CLARK HILL STRASBURGER; and
STRASBURGER & PRICE, LLP,
Defendants. 44TH JUDICIAL DISTRICT
DEFENDANTS’ RESPONSE TO PLAINTIFF’S
MOTION FOR LIMITED DISCOVERY AND CONTINUANCE
TO THE HONORABLE COURT:
Defendants Jules S. Brenner, Clark Hill PLC also doing business as Clark Hill
Strasburger, and Strasburger & Price, LLP (collectively, “Defendants”) file this Response t0
Plaintiff” s Motion for Limited Discovery and Continuance. Plaintiff has not demonstrated the
discovery it seeks meets the requirements of the TCPA because it is not relevant, specific, 0r
limited to the arguments raised by Defendants’ Motion to Dismiss.
I. INTRODUCTION AND SUMMARY OF ARGUMENT
Plaintiff” s sole cause of action against Defendants is breach of fiduciary duty, Which is
premised Wholly on Defendants’ representation of persons and entities (the “Third Parties”)
adverse to Defendants’ former client—Plaintiff Centurion Logistics, LLC. Defendants moved
to dismiss this claim pursuant to the Texas Citizens Participation Act (“TCPA”). Plaintiff now
seeks discovery it claims it needs to respond to Defendants’ motion, yet the discovery Plaintiff
DEFENDANTS’ RESPONSE TO PLAINTIFF’S
MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 1
requests has n0 bearing 0n the issues raised in that motion. Moreover, Plaintiff has now
responded to Defendants’ Motion, claiming it has “ample evidence” to support its claims, and
attaching literally thousands 0f pages of documents.
’9 CC
The discovery Plaintiff seeks is not the type of “limited discovery relevant to the
motion” that may be authorized prior t0 a TCPA hearing. Plaintiff seeks responses t0 18
interrogatories, 12 requests for production, and a three-hour deposition of Jules Brenner, all of
Which, according to Plaintiff, are necessary “to enable Plaintiff t0 expose the full extent 0f the
Defendant Attorneys [sic] involvement in the overall scheme to divest Plaintiff 0f its rights
and opportunities related to the Pecos rail terminal project.” (P1.’s Mot, p. 10). But n0 one
contests Defendants represented the Third Parties. The extent of Defendants’ representation 0f
the Third Parties is not relevant to any of the elements challenged in Defendants’ motion,
Which are:
0 Centurion Logistics’ lack of standing to bring derivative claims 0n behalf 0f
Centurion Pecos Terminal (“CPT”);
0 The absence of an attorney-client relationship between Defendants and CPT;
0 The absence of any duty, under Texas law, owed t0 Centurion Logistics as a former
client other than the duty t0 maintain client confidences;
o The lack of any alleged client confidences be misused, given John
that could
Calce’s equal access to any alleged confidential information of Centurion Logistics;
o of causation and damages given that the only allegedly “lost” assets
Plaintiff” s lack
belonged t0 CPT, not Centurion Logistics; and
o Defendants’ affirmative defenses of attorney immunity, collateral estoppel, release,
waiver, and quasi-estoppel, all 0f Which raise questions of law.
Plaintiff does not explain how any 0f its requested discovery would produce evidence relevant
to rebut any 0f these grounds.
DEFENDANTS’ RESPONSE TO PLAINTIFF’S
MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 2
Even assuming the extent of Defendants’ representation of the Third Parties is relevant
to the TCPA motion (Which it is not), Plaintiff’s discovery is not specific and limited, as
required by the TCPA. Plaintiff seeks extensive documents and interrogatory responses on
privileged and obj ectionable categories and topics. Plaintiff has not met its burden of showing
good cause exists and has not demonstrated the discovery is relevant 0r limited t0 the issues
raised in Defendants’ motion. Plaintiff’s request for discovery and continuance should be
denied.
II. ARGUMENT AND AUTHORITIES
A. Plaintiff’s Discovery is Not Relevant t0 Defendants’ Motion t0 Dismiss.
When a TCPA motion to dismiss is filed, all discovery is suspended except upon “a
motion by a party or on the court’s own motion and 0n a showing 0fg00d cause, the court
may allow specified and limited discovery relevant t0 the motion.” TEX. CIV. PRAC. & REM.
CODE §§ 27.003(c), 27.006(b) (emphasis added).
Discovery is relevant to the motion to dismiss if it seeks information “related to the
allegations asserted in the motion.” In re SSCP Management, Ina, 573 S.W.3d 464, 471-72
(Tex. App.—F0rt Worth 2019, no pet). Plaintiff appears to be seeking responses to 18
interrogatories and 12 requests for production from each 0f the three defendants, as well as the
deposition of Jules Brenner. (P1.’s Mot. at p. 9). As a preliminary matter, Plaintiff served the
interrogatories and requests for production on each of the three Defendants on November 1,
2019, weeks before Defendants filed their TCPA motion. (See P1.’s Mot. at p. 2). So, unless
Plaintiff knew the allegations Defendants would raise in their motion, Plaintiff could not have
tailored these requests to be “relevant to the motion to dismiss,” as required by the TCPA.
DEFENDANTS’ RESPONSE TO PLAINTIFF’S
MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 3
Allowing Plaintiff to conduct this discovery prior to a ruling on Defendants’ motion would
defeat the very purpose of the TCPA, Which is “to allow a prevailing movant of a motion to
dismiss to achieve dismissal ‘earlier than would otherwise be possible’ and t0 avoid costly
legal expenses, including discovery expenses, even before the summary judgment stage 0f
litigation.” In re Lipsky, 411 S.W.3d 530, 553 (Tex. App.—F0rt Worth 2013, orig. proceeding)
(emphasis added); Senate Comm. on State Affairs, Bill Analysis, H.B. 2973, 82d Leg., R.S.
(201 1).
According to Plaintiff, the discovery it seeks is necessary “to enable Plaintiff to expose
the full extent of the Defendant Attorneys [sic] involvement in the overall scheme t0 divest
Plaintiff of its rights and opportunities related to the Pecos rail terminal project.” (P1.’s Mot,
p. 10). Accordingly, Plaintiff seeks discovery regarding the “Defendant Attorneys’
representation of Plaintiff and third parties.” (P1. ’s Mot, p. 9). Defendants’ brief representation
of Plaintiff in 2014 is undisputed, and Plaintiff does not demonstrate that it needs any
additional discovery regarding that point. Plaintiff also fails to articulate how evidence
concerning Defendants’ representation 0f the Third Parties would be relevant t0 defeat any one
of the grounds in Defendants’ motion.
Defendants’ motion acknowledges their representation of the Third Parties, including
in the Underlying Litigation, as was evident by their appearance as counsel 0f record in those
cases. Defendants argue in the TCPA motion that, even assuming their representation 0fthe
Third Parties adverse t0 Plaintiff, Plaintiff’s claims fail for numerous reasons. Thus, the
extent of Defendants’ representation of the Third Parties has n0 relevance t0:
0 Centurion Logistics’ lack of standing to bring derivative claims on behalf of
Centurion Pecos Terminal (“CPT”);
DEFENDANTS’ RESPONSE TO PLAINTIFF’S
MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 4
0 The absence of an attorney-client relationship between Defendants and CPT;1
0 The absence of any duty, under Texas law, owed to Centurion Logistics as a former
client other than the duty to maintain client confidences;
o The lack 0f any alleged client confidences that could be misused, given John
Calce’s equal access to any alleged confidential information of Centurion Logistics;
o of causation and damages given that the only allegedly “lost” assets
Plaintiff” s lack
belonged to CPT, not Centurion Logistics; and
0 Defendants’ affirmative defenses of attorney immunity, collateral estoppel, release,
waiver, and quasi—estoppel, all 0f which raise questions of law.
The discovery Plaintiff seeks—including Defendants’ attorneys’ fee statements,
descriptions of the legal services provided to the Third Parties, conversations with other
counsel, the amount 0f fees billed and collected from the Third Parties, and other details
regarding their representation 0f various clients—Will not provide any insight as t0 these
issues. Because Plaintiff cannot defeat the grounds raised in Defendants’ motion, there is no
need for discovery into ancillary matters. See Baumgart v. Archer, 581 S.W.3d 819, 830 (Tex.
App.—H0uston [lst Dist] 2019, n0 pet.) (trial court’s denial of discovery was proper When
the discovery sought had no bearing on an essential element of plaintiff’s claim that plaintiff
could not prove). In short, Plaintiff has failed t0 demonstrate the discovery it seeks is relevant
to Defendants’ motion to dismiss.
Tellingly, since filing its discovery motion, Plaintiff has filed its response t0 the TCPA
motion and has attached literally thousands ofpages 0f documents purportedly in support 0f
Petition, filed 0n January 10, 2020, Plaintiff never alleged CPT was Defendants’ client.
Amended
1
Until its First
T0 the contrary, Plaintiffacknowledged in its discovery motion that CPT was not Defendants’ client: “Brenner and
Strasburger did all the legal work 0n behalfofCenturion Logistics in the drafting and revising 0fthe original Company
Agreement 0f Centurion Pecos Terminal LLC dated September 12, 2014. That invoice was directed t0 Brenner ’s and
.”
Strasburger’s client, Centurion Logistics . . . (Pl’s Mot, p. 3). Plaintiff’s effort to create confusion about this issue
in their Amended Petition and TCPA response does not give rise t0 the need for any additional discovery.
DEFENDANTS’ RESPONSE TO PLAINTIFF’S
MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 5
its claims. In the 68-page response, Plaintiff does not identify a single issue as to which it
Claims it needs additional discovery in order t0 adequately respond. To the contrary, Plaintiff
repeatedly states it has “ample evidence” to support its claims. (See, e.g., P1.’s TCPA
Response, pp. 3, 16, 25).
In addition to a lack 0f relevance, Plaintiff has failed to establish good cause exists
because much 0fthe information Plaintiff seeks is, 0r should be, Within Plaintiff” s own control.
“Good cause” for TCPA discovery exists When, among other requirements, documents are
Within the “exclusive control” of the defendant. Charalambopoulos v. Grammer, N0. 3:14-
CV-2424-D, 2015 WL 390664, at *19 (N.D. TeX. Jan. 29, 2015). For example, Plaintiff seeks
discovery about the legal services provided by Defendants t0 Plaintiff, including the amount
of attomeys’ fees billed and paid. (P1.’s Mot, EX. B at RFP No. 18-21, EX. C at Rog. 13,18).
Even if Defendants had not attached these documents to its TCPA Motion (Which it did),
Plaintiff should have this information in its possession since it was the one receiving the legal
services, present at the attorney meetings, and receiving and paying the bills. Indeed, Plaintiff
attached several documents regarding Defendants’ representation of Centurion Logistics to its
TCPA Response. (See, e.g., EXS. A-8 t0 A-14 of P1.’s TCPA Response). Plaintiff cannot
articulate how any addition information would help it in responding to Defendants’ motion.
In addition, Plaintiff was a party t0 the Underlying Litigation, and received voluminous
discovery and documents in connection With that litigation, including Defendants’ attorneys’
fee statements submitted in connection With the underlying defendants’ TCPA motions and
the depositions of the Lawyer Defendants’ alleged co-conspirators. (See, e.g., Amended
DEFENDANTS’ RESPONSE TO PLAINTIFF’S
MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 6
Petition, W 4.24-4.33, detailing some of the facts allegedly learned through discovery in the
Underlying Litigation). Among the thousands of pages attached t0 the TCPA response are
depositions and other documents from the Underlying Litigation. Plaintiff has much more
information at its disposal than do most litigants at this stage. The fact that it cannot make out
a Viable claim against Defendants speaks to the lack of merit in Plaintiff” s claims rather than a
need for more discovery.
Plaintiff has not met its burden with respect t0 TCPA discovery, and the discovery and
continuance should be denied.
B. Plaintiff’s Discovery is Not Limited in Scope.
Even assuming the extent of Defendants’ representation of the Third Parties were
relevant (Which it is not), the interrogatories and requests for production identified by Plaintiff
far exceed any reasonable scope. A party defending against a TCPA motion may not conduct
full-fledged merits discovery. In re SSCP Management, Ina, 573 S.W.3d 464, 471-72 (Tex.
App.—F0rt Worth 2019, no pet). Because the responding party must only put forth a prima
facie case on the challenged elements of its claims, “lengthy depositions” and “voluminous
written discovery” are not permitted. Id. Voluminous discovery is precisely what Plaintiff
seeks.
Plaintiff’s discovery requests are far from specified and limited, as required by the
TCPA. For example, for each of the (1) Harris County Lawsuit, (2) Reeves County Lawsuit,
(3) Records Lawsuit, (4) the underlying Centurion Lawsuit, (5) the Stampede Lawsuit, and
(6) the Collin County Lawsuit, Plaintiff” s interrogatories would require Defendants to:
DEFENDANTS’ RESPONSE TO PLAINTIFF’S
MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 7
o identify any and all communications, if any, they had With other attorneys of record
and identify all parties to those communications;
0 identify all legal services performed, if any, Who Defendants were representing
With respect to those legal services, how much Defendants billed for the legal
services, and how much Defendants were paid; and
0 based on Defendants’ attorney billing records already produced in the Underlying
Litigation, identify all counsel and individuals present at countless joint defense
meetings and set forth What was discussed at those meetings.
(P1.’s Mot., EX. C., Rogs. 1-12, 16-17). Plaintiff’s Interrogatory No. 18 further requires
Defendants to detail the legal services provided t0 13 different entities, and for each, the
amount of attomeys’ fees billed to and paid by the entity. (Id. at Rog. 18). Not only are these
interrogatories incredibly overbroad, they seek information protected by numerous privileges,
including the attorney-client and work-product privileges, to which Defendants would
adamantly object. This scope 0f discovery would not be permissible in full-fledged merits
discovery, much less in the very limited and narrow scope 0f discovery permissible under the
TCPA.
With regard to the document requests, Plaintiff claims the requests “are limited to
requesting billing records and/or billing totals for a limited number 0f specific and relevant
individuals and entities.” (Pl’s Mot, p. 9). The falsity of that statement is easily demonstrated
by a quick review 0f the requests. For example, Plaintiffs Requests for Production seek any
and all documents evidencing the legal services provided t0 seven different individuals 0r
entities, as well as any and all documents identifying the amount of attomeys’ fees billed to
DEFENDANTS’ RESPONSE TO PLAINTIFF’S
MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 8
and paid by each individual or entity. (Pl’s Mot, EX. B., RFP 17-18, 20, 22-25). These
requests would call for every email, memo, pleading, and note contained in Defendants’ file,
Which would be extremely burdensome to collect and review, especially considering that the
majority 0f these documents would be protected by the attorney-client and work-product
privileges, among others.
Plaintiff claims it needs the above-reference discovery to respond to Defendants’
motion, yet Plaintiff fails to articulate the discovery’s relevance to any 0f the points raised by
Defendants. Instead, Plaintiff seeks discovery that far exceeds the specific and limited
discovery permitted by the Texas Rules, much less the TCPA. Plaintiffs motion for discovery
and continuance should be denied.
III. CONCLUSION
For the foregoing reasons, Defendants Jules S. Brenner, Clark Hill PLC also doing
business as Clark Hill Strasburger, and Strasburger & Price, LLP respectfully request the Court
to deny Centurion’s Motion for Limited Discovery and Continuance and proceed With the
hearing on Defendants’ Motion to Dismiss as scheduled.
DEFENDANTS’ RESPONSE TO PLAINTIFF’S
MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 9
Respectfully submitted,
/s/Kelli M Hinson
KELLI M. HINSON
Texas State Bar N0. 00793956
Email: khinson@ccsb.com
DEBRAN L. O’NEIL
Texas State Bar No. 24083497
Email: d0neil@ccsb.com
CARRINGTON, COLEMAN,
SLOMAN & BLUMENTHAL, L.L.P.
901 Main Street, Suite 5500
Dallas,Texas 75202
214-855-3000 (main telephone)
214-855-1333 (main fax)
Attorneysfor Defendants
Certificate 0f Service
The undersigned certifies that a copy of the foregoing instrument was served upon the
attorneys 0f record in the above cause in accordance with the Texas Rules of Civil Procedure
Via electronic service on this 14th day of January 2020.
,
Attorneys tor Plaintiff
Robert J. Myers (rmversébmverslawtexas.com)
Thomas P. Prehoditch, Of Counsel (tpp@mverslawtexas.com)
John J. Shaw (ishaw@mverslawtexas.com)
Lisa K. Falcone (1falcone@mverslawtexas.com)
Myers * Law
2525 Ridgmar Boulevard, Suite 150
Fort Worth, TX 761 16
8 1 7/73 1-2500 (phone)
817/73 1-2501 (fax)
/S/ Kelli M. Hinson
Kelli M. Hinson
i_9392748v.1
DEFENDANTS’ RESPONSE TO PLAINTIFF’S
MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 10
Preview
FILED DALLAS COUNTY 1/14/2020 2:51 PM FELICIA PITRE DISTRICT CLERK Kellie Juricek CAUSE NO. DC-19-15964 CENTURION LOGISTICS LLC, IN THE DISTRICT COURT directly and derivatively on behalf 0f CENTURION PECOS TERMINAL LLC, Plaintifif vs. OMOMOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOM DALLAS COUNTY, TEXAS IULES BRENNER; S. CLARK HILL PLC also doing business as CLARK HILL STRASBURGER; and STRASBURGER & PRICE, LLP, Defendants. 44TH JUDICIAL DISTRICT DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR LIMITED DISCOVERY AND CONTINUANCE TO THE HONORABLE COURT: Defendants Jules S. Brenner, Clark Hill PLC also doing business as Clark Hill Strasburger, and Strasburger & Price, LLP (collectively, “Defendants”) file this Response t0 Plaintiff” s Motion for Limited Discovery and Continuance. Plaintiff has not demonstrated the discovery it seeks meets the requirements of the TCPA because it is not relevant, specific, 0r limited to the arguments raised by Defendants’ Motion to Dismiss. I. INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiff” s sole cause of action against Defendants is breach of fiduciary duty, Which is premised Wholly on Defendants’ representation of persons and entities (the “Third Parties”) adverse to Defendants’ former client—Plaintiff Centurion Logistics, LLC. Defendants moved to dismiss this claim pursuant to the Texas Citizens Participation Act (“TCPA”). Plaintiff now seeks discovery it claims it needs to respond to Defendants’ motion, yet the discovery Plaintiff DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 1 requests has n0 bearing 0n the issues raised in that motion. Moreover, Plaintiff has now responded to Defendants’ Motion, claiming it has “ample evidence” to support its claims, and attaching literally thousands 0f pages of documents. ’9 CC The discovery Plaintiff seeks is not the type of “limited discovery relevant to the motion” that may be authorized prior t0 a TCPA hearing. Plaintiff seeks responses t0 18 interrogatories, 12 requests for production, and a three-hour deposition of Jules Brenner, all of Which, according to Plaintiff, are necessary “to enable Plaintiff t0 expose the full extent 0f the Defendant Attorneys [sic] involvement in the overall scheme to divest Plaintiff 0f its rights and opportunities related to the Pecos rail terminal project.” (P1.’s Mot, p. 10). But n0 one contests Defendants represented the Third Parties. The extent of Defendants’ representation 0f the Third Parties is not relevant to any of the elements challenged in Defendants’ motion, Which are: 0 Centurion Logistics’ lack of standing to bring derivative claims 0n behalf 0f Centurion Pecos Terminal (“CPT”); 0 The absence of an attorney-client relationship between Defendants and CPT; 0 The absence of any duty, under Texas law, owed t0 Centurion Logistics as a former client other than the duty t0 maintain client confidences; o The lack of any alleged client confidences be misused, given John that could Calce’s equal access to any alleged confidential information of Centurion Logistics; o of causation and damages given that the only allegedly “lost” assets Plaintiff” s lack belonged t0 CPT, not Centurion Logistics; and o Defendants’ affirmative defenses of attorney immunity, collateral estoppel, release, waiver, and quasi-estoppel, all 0f Which raise questions of law. Plaintiff does not explain how any 0f its requested discovery would produce evidence relevant to rebut any 0f these grounds. DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 2 Even assuming the extent of Defendants’ representation of the Third Parties is relevant to the TCPA motion (Which it is not), Plaintiff’s discovery is not specific and limited, as required by the TCPA. Plaintiff seeks extensive documents and interrogatory responses on privileged and obj ectionable categories and topics. Plaintiff has not met its burden of showing good cause exists and has not demonstrated the discovery is relevant 0r limited t0 the issues raised in Defendants’ motion. Plaintiff’s request for discovery and continuance should be denied. II. ARGUMENT AND AUTHORITIES A. Plaintiff’s Discovery is Not Relevant t0 Defendants’ Motion t0 Dismiss. When a TCPA motion to dismiss is filed, all discovery is suspended except upon “a motion by a party or on the court’s own motion and 0n a showing 0fg00d cause, the court may allow specified and limited discovery relevant t0 the motion.” TEX. CIV. PRAC. & REM. CODE §§ 27.003(c), 27.006(b) (emphasis added). Discovery is relevant to the motion to dismiss if it seeks information “related to the allegations asserted in the motion.” In re SSCP Management, Ina, 573 S.W.3d 464, 471-72 (Tex. App.—F0rt Worth 2019, no pet). Plaintiff appears to be seeking responses to 18 interrogatories and 12 requests for production from each 0f the three defendants, as well as the deposition of Jules Brenner. (P1.’s Mot. at p. 9). As a preliminary matter, Plaintiff served the interrogatories and requests for production on each of the three Defendants on November 1, 2019, weeks before Defendants filed their TCPA motion. (See P1.’s Mot. at p. 2). So, unless Plaintiff knew the allegations Defendants would raise in their motion, Plaintiff could not have tailored these requests to be “relevant to the motion to dismiss,” as required by the TCPA. DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 3 Allowing Plaintiff to conduct this discovery prior to a ruling on Defendants’ motion would defeat the very purpose of the TCPA, Which is “to allow a prevailing movant of a motion to dismiss to achieve dismissal ‘earlier than would otherwise be possible’ and t0 avoid costly legal expenses, including discovery expenses, even before the summary judgment stage 0f litigation.” In re Lipsky, 411 S.W.3d 530, 553 (Tex. App.—F0rt Worth 2013, orig. proceeding) (emphasis added); Senate Comm. on State Affairs, Bill Analysis, H.B. 2973, 82d Leg., R.S. (201 1). According to Plaintiff, the discovery it seeks is necessary “to enable Plaintiff to expose the full extent of the Defendant Attorneys [sic] involvement in the overall scheme t0 divest Plaintiff of its rights and opportunities related to the Pecos rail terminal project.” (P1.’s Mot, p. 10). Accordingly, Plaintiff seeks discovery regarding the “Defendant Attorneys’ representation of Plaintiff and third parties.” (P1. ’s Mot, p. 9). Defendants’ brief representation of Plaintiff in 2014 is undisputed, and Plaintiff does not demonstrate that it needs any additional discovery regarding that point. Plaintiff also fails to articulate how evidence concerning Defendants’ representation 0f the Third Parties would be relevant t0 defeat any one of the grounds in Defendants’ motion. Defendants’ motion acknowledges their representation of the Third Parties, including in the Underlying Litigation, as was evident by their appearance as counsel 0f record in those cases. Defendants argue in the TCPA motion that, even assuming their representation 0fthe Third Parties adverse t0 Plaintiff, Plaintiff’s claims fail for numerous reasons. Thus, the extent of Defendants’ representation of the Third Parties has n0 relevance t0: 0 Centurion Logistics’ lack of standing to bring derivative claims on behalf of Centurion Pecos Terminal (“CPT”); DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 4 0 The absence of an attorney-client relationship between Defendants and CPT;1 0 The absence of any duty, under Texas law, owed to Centurion Logistics as a former client other than the duty to maintain client confidences; o The lack 0f any alleged client confidences that could be misused, given John Calce’s equal access to any alleged confidential information of Centurion Logistics; o of causation and damages given that the only allegedly “lost” assets Plaintiff” s lack belonged to CPT, not Centurion Logistics; and 0 Defendants’ affirmative defenses of attorney immunity, collateral estoppel, release, waiver, and quasi—estoppel, all 0f which raise questions of law. The discovery Plaintiff seeks—including Defendants’ attorneys’ fee statements, descriptions of the legal services provided to the Third Parties, conversations with other counsel, the amount 0f fees billed and collected from the Third Parties, and other details regarding their representation 0f various clients—Will not provide any insight as t0 these issues. Because Plaintiff cannot defeat the grounds raised in Defendants’ motion, there is no need for discovery into ancillary matters. See Baumgart v. Archer, 581 S.W.3d 819, 830 (Tex. App.—H0uston [lst Dist] 2019, n0 pet.) (trial court’s denial of discovery was proper When the discovery sought had no bearing on an essential element of plaintiff’s claim that plaintiff could not prove). In short, Plaintiff has failed t0 demonstrate the discovery it seeks is relevant to Defendants’ motion to dismiss. Tellingly, since filing its discovery motion, Plaintiff has filed its response t0 the TCPA motion and has attached literally thousands ofpages 0f documents purportedly in support 0f Petition, filed 0n January 10, 2020, Plaintiff never alleged CPT was Defendants’ client. Amended 1 Until its First T0 the contrary, Plaintiffacknowledged in its discovery motion that CPT was not Defendants’ client: “Brenner and Strasburger did all the legal work 0n behalfofCenturion Logistics in the drafting and revising 0fthe original Company Agreement 0f Centurion Pecos Terminal LLC dated September 12, 2014. That invoice was directed t0 Brenner ’s and .” Strasburger’s client, Centurion Logistics . . . (Pl’s Mot, p. 3). Plaintiff’s effort to create confusion about this issue in their Amended Petition and TCPA response does not give rise t0 the need for any additional discovery. DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 5 its claims. In the 68-page response, Plaintiff does not identify a single issue as to which it Claims it needs additional discovery in order t0 adequately respond. To the contrary, Plaintiff repeatedly states it has “ample evidence” to support its claims. (See, e.g., P1.’s TCPA Response, pp. 3, 16, 25). In addition to a lack 0f relevance, Plaintiff has failed to establish good cause exists because much 0fthe information Plaintiff seeks is, 0r should be, Within Plaintiff” s own control. “Good cause” for TCPA discovery exists When, among other requirements, documents are Within the “exclusive control” of the defendant. Charalambopoulos v. Grammer, N0. 3:14- CV-2424-D, 2015 WL 390664, at *19 (N.D. TeX. Jan. 29, 2015). For example, Plaintiff seeks discovery about the legal services provided by Defendants t0 Plaintiff, including the amount of attomeys’ fees billed and paid. (P1.’s Mot, EX. B at RFP No. 18-21, EX. C at Rog. 13,18). Even if Defendants had not attached these documents to its TCPA Motion (Which it did), Plaintiff should have this information in its possession since it was the one receiving the legal services, present at the attorney meetings, and receiving and paying the bills. Indeed, Plaintiff attached several documents regarding Defendants’ representation of Centurion Logistics to its TCPA Response. (See, e.g., EXS. A-8 t0 A-14 of P1.’s TCPA Response). Plaintiff cannot articulate how any addition information would help it in responding to Defendants’ motion. In addition, Plaintiff was a party t0 the Underlying Litigation, and received voluminous discovery and documents in connection With that litigation, including Defendants’ attorneys’ fee statements submitted in connection With the underlying defendants’ TCPA motions and the depositions of the Lawyer Defendants’ alleged co-conspirators. (See, e.g., Amended DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 6 Petition, W 4.24-4.33, detailing some of the facts allegedly learned through discovery in the Underlying Litigation). Among the thousands of pages attached t0 the TCPA response are depositions and other documents from the Underlying Litigation. Plaintiff has much more information at its disposal than do most litigants at this stage. The fact that it cannot make out a Viable claim against Defendants speaks to the lack of merit in Plaintiff” s claims rather than a need for more discovery. Plaintiff has not met its burden with respect t0 TCPA discovery, and the discovery and continuance should be denied. B. Plaintiff’s Discovery is Not Limited in Scope. Even assuming the extent of Defendants’ representation of the Third Parties were relevant (Which it is not), the interrogatories and requests for production identified by Plaintiff far exceed any reasonable scope. A party defending against a TCPA motion may not conduct full-fledged merits discovery. In re SSCP Management, Ina, 573 S.W.3d 464, 471-72 (Tex. App.—F0rt Worth 2019, no pet). Because the responding party must only put forth a prima facie case on the challenged elements of its claims, “lengthy depositions” and “voluminous written discovery” are not permitted. Id. Voluminous discovery is precisely what Plaintiff seeks. Plaintiff’s discovery requests are far from specified and limited, as required by the TCPA. For example, for each of the (1) Harris County Lawsuit, (2) Reeves County Lawsuit, (3) Records Lawsuit, (4) the underlying Centurion Lawsuit, (5) the Stampede Lawsuit, and (6) the Collin County Lawsuit, Plaintiff” s interrogatories would require Defendants to: DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 7 o identify any and all communications, if any, they had With other attorneys of record and identify all parties to those communications; 0 identify all legal services performed, if any, Who Defendants were representing With respect to those legal services, how much Defendants billed for the legal services, and how much Defendants were paid; and 0 based on Defendants’ attorney billing records already produced in the Underlying Litigation, identify all counsel and individuals present at countless joint defense meetings and set forth What was discussed at those meetings. (P1.’s Mot., EX. C., Rogs. 1-12, 16-17). Plaintiff’s Interrogatory No. 18 further requires Defendants to detail the legal services provided t0 13 different entities, and for each, the amount of attomeys’ fees billed to and paid by the entity. (Id. at Rog. 18). Not only are these interrogatories incredibly overbroad, they seek information protected by numerous privileges, including the attorney-client and work-product privileges, to which Defendants would adamantly object. This scope 0f discovery would not be permissible in full-fledged merits discovery, much less in the very limited and narrow scope 0f discovery permissible under the TCPA. With regard to the document requests, Plaintiff claims the requests “are limited to requesting billing records and/or billing totals for a limited number 0f specific and relevant individuals and entities.” (Pl’s Mot, p. 9). The falsity of that statement is easily demonstrated by a quick review 0f the requests. For example, Plaintiffs Requests for Production seek any and all documents evidencing the legal services provided t0 seven different individuals 0r entities, as well as any and all documents identifying the amount of attomeys’ fees billed to DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 8 and paid by each individual or entity. (Pl’s Mot, EX. B., RFP 17-18, 20, 22-25). These requests would call for every email, memo, pleading, and note contained in Defendants’ file, Which would be extremely burdensome to collect and review, especially considering that the majority 0f these documents would be protected by the attorney-client and work-product privileges, among others. Plaintiff claims it needs the above-reference discovery to respond to Defendants’ motion, yet Plaintiff fails to articulate the discovery’s relevance to any 0f the points raised by Defendants. Instead, Plaintiff seeks discovery that far exceeds the specific and limited discovery permitted by the Texas Rules, much less the TCPA. Plaintiffs motion for discovery and continuance should be denied. III. CONCLUSION For the foregoing reasons, Defendants Jules S. Brenner, Clark Hill PLC also doing business as Clark Hill Strasburger, and Strasburger & Price, LLP respectfully request the Court to deny Centurion’s Motion for Limited Discovery and Continuance and proceed With the hearing on Defendants’ Motion to Dismiss as scheduled. DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 9 Respectfully submitted, /s/Kelli M Hinson KELLI M. HINSON Texas State Bar N0. 00793956 Email: khinson@ccsb.com DEBRAN L. O’NEIL Texas State Bar No. 24083497 Email: d0neil@ccsb.com CARRINGTON, COLEMAN, SLOMAN & BLUMENTHAL, L.L.P. 901 Main Street, Suite 5500 Dallas,Texas 75202 214-855-3000 (main telephone) 214-855-1333 (main fax) Attorneysfor Defendants Certificate 0f Service The undersigned certifies that a copy of the foregoing instrument was served upon the attorneys 0f record in the above cause in accordance with the Texas Rules of Civil Procedure Via electronic service on this 14th day of January 2020. , Attorneys tor Plaintiff Robert J. Myers (rmversébmverslawtexas.com) Thomas P. Prehoditch, Of Counsel (tpp@mverslawtexas.com) John J. Shaw (ishaw@mverslawtexas.com) Lisa K. Falcone (1falcone@mverslawtexas.com) Myers * Law 2525 Ridgmar Boulevard, Suite 150 Fort Worth, TX 761 16 8 1 7/73 1-2500 (phone) 817/73 1-2501 (fax) /S/ Kelli M. Hinson Kelli M. Hinson i_9392748v.1 DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR LIMITED DISCOVERY AND CONTINUANCE Page 10