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FILED
DALLAS COUNTY
12/4/2015 10:40:55 AM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-15-07174
JOHN DOE I, INDIVIDUALLY AND AS § IN THE DISTRICT COURT
NEXT FRIEND TO JOHN DOE II, A MINOR §
Plaintiffs §
§
VS. §
§
THE ANDERSON PRIVATE SCHOOL, §
WILLIAM C. ANDERSON, INDIVIDUALLY, § DALLAS COUNTY, TEXAS
LEVONNA C. ANDERSON, §
INDIVIDUALLY, ALEXANDER A. §
ANDERSON, INDIVIDUALLY, RIPLEY §
ENTERTAINMENT, INC., and JIM §
PATTISON U.S.A., INC. § 44TH-B JUDICIAL DISTRICT
DEFENDANT ALEXANDER A. ANDERSON’ S
MOTION TO COMPEL PLAINTFF JOHN DOE I
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendant, Alexander A. Anderson (Defendant), and files this Motion to
Compel against Plaintiff John Doe I (Plaintiff), and respectfully shows the Court:
Relevant Procedural and Factual History
1. The Court signed an Agreed Uniform Scheduling Order (Level 3) scheduling
order on August 3, 2015 that states each party shall have 50 interrogatories. See Agreed
Uniform Scheduling Order (Level 3) ¶ 4 (on file with the Court). Then on August 17, 2015 the
parties filed a Rule 11 Agreement amending portions of the Court’s Uniform Order. Notably,
the parties’ Rule 11 Agreement does not in any way change or limit the number of
interrogatories allowed by each party in the Agreed Uniform Scheduling Order (Level 3).
2. On October 26, 2015 Defendant served on Plaintiff “Defendant Alexander A.
Anderson’s First Set of Interrogatories, First Requests for Production, and First Requests for
Admission” (Discovery Requests). See Ex. 1. Plaintiff responded to the Discovery Requests
Defendant Alexander A. Anderson’s Motion to Compel Plaintiff John Doe I Page 1 of 9
with meritless objections. See Ex. 2, Plaintiff John Doe I’s Answers, Responses and Objections
to Alexander A. Anderson’s First Set of Interrogatories, First Requests for Production, and First
Requests for Admission (Plaintiff’s Response).
3. Additionally, along with making meritless formulaic objections and in direct
contravention with the rules of civil procedure which requires production of responsive
documents with discovery responses, Plaintiff failed to produce any responsive documents. See
Tex. R. Civ. P. 193.2(b) & cmt. 2 (noting that party has an obligation to produce any items to the
extent that it does not object); Tex. R. Civ. P. 196.3(a) (stating that a party is required to produce
all items in their possession, custody or control).
4. At issue in this Motion to Compel are Requests for Production numbers 1 through
55, Interrogatories numbers 1, 2, 3, 6, 7, 9, 10, 13, 15, 16, 17, 18, 19, 20, 21, 22, and 23; and
Request for Admission numbers 13 (p.27), 13 1 (p.32), and 14.
Argument and Authorities 2
5. As a threshold matter, Plaintiff has wholly failed to verify his responses to
Defendant’s interrogatories as required by Texas Rule of Civil Procedure 197.2(d) & cmt. 2.
6. Further, Plaintiff, without producing a single responsive document or item and in
response has stated instead that “Plaintiff will present all such evidence at trial . . .” and generally
that Plaintiff “will produce” responsive documents. See e.g., Ex. 2. resp. to Interrogatory
number 9 and nearly all responses to Defendant’s Requests for Production. However, the Texas
Rules of Civil Procedure require that all available responsive documents in the party’s actual or
constructive possession be provided with a party’s discovery responses. See e.g., Tex. R. Civ. P.
1
Requests for Admission were erroneously duplicated in Defendant’s Discovery Requests, therefore a
page reference in Plaintiff’s Response is provided.
2
This section is not meant to enumerate the entirety of Plaintiff’s impermissible and obstructive
responses, it is merely meant to highlight the more egregious nonresponsive items.
Defendant Alexander A. Anderson’s Motion to Compel Plaintiff John Doe I Page 2 of 9
193.1, 193.2(b), 196.3(a). And, that if documents are not produced, that the responding party
state a specific time and place for production. Instead, Plaintiff asserts that he, and not the rules,
will dictate when his responses will be forthcoming, up to and including his intent to withhold
responsive information until trial. In a case such as this, where after six months the Plaintiffs
have not supported their allegations with any facts 3 and those allegations have been investigated
and dismissed by two independent investigative agencies, Plaintiff’s position on his intent to
withhold information, failure to produce validly requested information appropriately related to
deciphering the factual basis of the Plaintiffs’ claims, is highly prejudicial to Defendant’s ability
to defend against what are as of this filing, not only wholly unsubstantiated claims but claims
investigated and determined to be unfounded. See Ex. A to Def.’s Discovery Requests in Ex. 1
hereto, Grand Prairie Police Department Report (stating John Doe I’s claims were “unfounded”);
Ex. 3, Correspondence and Report of Texas Department of Family and Protective Services
(stating that Alexander A. Anderson had “no role” and that no child was exploited, abused or
neglected in Defendants’ care).
7. Further, the Court’s Agreed Uniform Scheduling Order (Level 3) clearly states
that each party shall have fifty (50) interrogatories. See Agreed Uniform Scheduling Order
(Level 3) ¶ 4. Despite this clear language, Plaintiff, relying generally on the Texas Rules of Civil
Procedure with no specific cite thereto, beginning with his response to Defendant’s Request for
Interrogatory number 16 and continuing through interrogatory number 23, objects asserting that
Defendant has exceeded his allotted number of interrogatories and discreet subparts. See Ex. 2.
Not only is Plaintiff’s objection based on excessive requests unsupported by citation to any
specific authority, it is in direct contradiction to the clear language of the Court’s Order allowing
3
See Defendants’ Special Exceptions (on file with the Court).
Defendant Alexander A. Anderson’s Motion to Compel Plaintiff John Doe I Page 3 of 9
fifty (50) interrogatories to each party. Further, reviewing Defendant’s interrogatories numbered
1 through 15 none of those interrogatories can be construed to contain more than a single
interrogatory and allowable supporting information as recognized by the Texas Rules of Civil
Procedure. See Tex. R. Civ. P. 190 cmt. 3 (identifying a discreet subpart as information that is
not logically or factually related to the primary interrogatory).
8. Plaintiff’s remaining objections to Defendant’s interrogatories are meritless, form
objections intended solely to prevent Defendant’s from obtaining any detail about the Plaintiffs’
vague, unsubstantiated allegation of sexual abuse. Despite knowing that two independent
agencies investigated and dismissed Plaintiff John Doe I’s claims that Defendant Alexander A.
Anderson sexually abused John Doe II, John Doe I filed the present lawsuit. See Exs. C, D. To
date, nearly six months into the lawsuit within which Plaintiffs have still not provided any factual
basis for their claims, John Doe I now takes the position that information about the factual basis
or persons with potential information about the factual basis of his claims are not proper subjects
of discovery. In example, (1) in his response to Defendant’s Interrogatory No. 1, Plaintiff takes
the position that a request for information about persons with an ability to observe, work with or
communicate with John Doe II is overbroad, unduly burdensome, harassing, not relevant, would
not lead to admissible evidence, and is somehow vague or confusing; (2) in his response to
Defendant’s Interrogatory No. 2, Plaintiff makes similar form objections to Defendant’s request
for information about persons with whom John Doe I has discussed the allegations that serve as
the basis for all of his claims, and (3) in his response to Defendant’s Interrogatory number 3,
Plaintiff goes so far as to assert physician/patient privilege with respect to his communications
regarding the abuse with John Doe II’s birth mother, Charlotte Ice, and others. See Ex. 2.
Defendant Alexander A. Anderson’s Motion to Compel Plaintiff John Doe I Page 4 of 9
9. Even if such privilege applied, which it does not because Plaintiffs waived such
privilege by relying on John Doe II’s mental and physical condition for their claims, it is highly
unlikely that all communications with the parties alleged to enjoy the asserted privilege would, in
fact, qualify for that privilege—moreover, Plaintiff did not produce any privilege log with his
responses. See Tex. R. Evid. 509(e)(4), 510(d)(5); Ex. 1. Moreover, to the degree that the
records sought are medical or other records about John Doe II, Plaintiff’s son, Plaintiff, as John
Doe II’s parent, has superior right to those records over any third-party holding them and as such
is required to produce them as those records are within John Doe I’s possession, custody and
control.
10. Plaintiff has lodged similar form objections to requests for information about John
Doe II’s prior schools and why John Doe II no longer attends those schools (Defendant’s
Interrogatories number 6 and 7, both at the very least relevant to determining any past history of
allegations of abuse by the plaintiffs); a request for the list of medical tests that confirm that John
Doe II was sexually abused on October 31, 2014 (Defendant’s Interrogatory number 10, which
Plaintiff somehow feels is overbroad, unduly burdensome and harassing); and requests for
information related to or support Plaintiffs’ own allegations (see, in example, responses to
Defendant’s requests for production numbers 12 through 19, 46, 51, and 52 and interrogatory
number 14).
11. Plaintiff’s reliance on Loftin v. Martin as precluding Defendant’s contention
discovery in this matter is misplaced. See generally, Ex. B. Loftin stands for the proposition that
a requesting party cannot simply request all evidence that support the responding party’s
allegations as a whole. See Loftin v. Martin, 776 S.W.2d 145, 148 (Tex. 1989), disapproved of
on other grounds by Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding). The
Defendant Alexander A. Anderson’s Motion to Compel Plaintiff John Doe I Page 5 of 9
Court’s main complaint was that the request in Loftin lacked specificity, and as such, was vague,
broad and unclear. See id. at 148. The Court in Loftin focused on the fact that the request did not
identify any particular class or type of documents. Id. Subsequent to Loftin, Courts have applied
Loftin to allow discovery of documents related to specific contentions or items at issue in the
case at bar.
12. In example, in Chamberlain v. Cherry, the Amarillo Court of Appeals, discussing
Loftin, concluded that a request for particular classes or types of documents was permissible. 818
S.W.2d 201, 204 (Tex. App.—Amarillo 1991, no pet.) (holding that a request for production of
“any and all leases or rental agreements, deposit agreements, and related documents concerning
or pertaining to all or part of the property subject of this suit for the period since July 31, 1989”
was within the bounds of acceptable discovery ). Likewise, in In re Waste Mgmt. of Tex., Inc.,
the Texarkana Court of Appeals distinguished the generic request in Loftin—“all evidence that
supports Lumbermens’ allegations”—and allowed as properly propounded, requests for
production information that were narrowly tailored to a specific aspect, item, or allegation at
issue in the lawsuit. 392 S.W.3d 861, 872 (Tex. App.—Texarkana 2013, no pet.). Here the
objected to requests within which Plaintiff assets Loftin in support of his objection are, unlike the
general request rejected in Loftin, all narrowly tailored by time, subject matter, and category of
documents sought. Further, all are directly related to an issue in contention in this case.
13. Moreover, to the degree that Plaintiff complains that any request violates the
attorney-client or “investigative” privilege, as noted above, he has not provided any privilege
log.
14. In his responses, Plaintiff asserts that he may designate several fact witnesses as
non-testifying experts. To the degree that Plaintiff intends to do so, because he has not yet
Defendant Alexander A. Anderson’s Motion to Compel Plaintiff John Doe I Page 6 of 9
asserted any such designation, for the purposes of Defendant’s discovery and Plaintiff’s
responses, those persons are strictly fact witnesses and there are no expert-based restrictions or
limitations on Defendant’s inquiries. Further, even if Plaintiff were to designate those persons
identified in its Discovery Responses as non-retained experts, the knowledge and opinions of any
of those parties that was an active participant in the events material to the lawsuit are
discoverable. See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 554 (Tex. 1990) (“The factual
knowledge and opinions acquired by an individual who is an expert and an active participant in
the events material to the lawsuit are discoverable. This information is not shielded from
discovery by merely changing the designation of a person with knowledge of relevant facts to a
‘consulting-only expert.’”).
15. And, finally with respect to Defendant’s request for the Halloween costume worn
by John Doe II on the date of the alleged assault, Plaintiff’s impermissibly attempt to make such
production conditional upon Defendant providing the “exact reasons for the Request.” See Ex. 2
p.48 (response to Defendant’s Request for Production number 53). This is not a valid objection
and Plaintiff is in no position to mandate that Defendant provide any further information beyond
his properly lodged and appropriately tailored request.
PRAYER
Accordingly, Defendants request that this Court Order Defendant to comply with the
Texas Rules of Civil Procedure, by fully and completely responding to the Defendant’s
Discovery Requests and requiring Plaintiff to provide the required verification to the
interrogatories contained therein. Defendant further prays for any and all relief to which they
shows themselves entitled, whether pleaded or unplead.
Defendant Alexander A. Anderson’s Motion to Compel Plaintiff John Doe I Page 7 of 9
Respectfully Submitted,
By /s/ Robert Hammer_______
Robert W. Hammer
State Bar No.: 08854780
William H. Kincaid
State Bar No.: 11431500
ROBERT W. HAMMER
300 Legacy Downs Drive
Fort Worth, Texas 76126
Telephone 817/ 332-8266
Telefax 817/ 332-8708
robert@rhammerlaw.com
AND
WILLIAM H. KINCAID
Box 457
Sanger, Texas 76266
Telephone 940/ 372-3598
whk4888@yahoo.com
ATTORNEYS FOR DFENDANTS
THE ANDERSON PRIVATE SCHOOL,
WILLIAM C. ANDERSON, LeVONNA C.
ANDERSON, and ALEXANDER A.
ANDERSON
Defendant Alexander A. Anderson’s Motion to Compel Plaintiff John Doe I Page 8 of 9
CERTIFICATE OF CONFERENCE
I certify that on December 3rd, 2015, I conducted a conference with Plaintiff John Doe
I’s counsel at which I attempted to have a substantive discussion on the items presented to the
Court in this motion and that despite best efforts the counsel have not been able to resolve the
matters presented.
By /s/ Robert Hammer_______
Robert W. Hammer
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above was served on each attorney of record
or party in accordance with the Texas Rules of Civil Procedure on this the 4th day of December,
2015, as follows:
John D. Sloan, Jr.
Douglas W. Lukasik
SLOAN MATNEY, LLP
3838 Oak Lawn Ave., Ste. 1200
Dallas, Texas 75219
jsloan@sloanmatney.com
dlukasik@sloanmatney.com
(f) 214-237-5474
Attorneys for Plaintiffs
S. Todd Parks
WALTERS, BALIDO & CRAIN, L.L.P.
10440 North Central Expressway
Meadow Park Tower, Suite 1500
Dallas, Texas 75231
todd.parks@wbclawfirm.com
parksedocsnotifications@wbclawfirm.com
(f) 214-760-1670
By /s/ Robert Hammer_______
Robert W. Hammer
Defendant Alexander A. Anderson’s Motion to Compel Plaintiff John Doe I Page 9 of 9
Preview
FILED DALLAS COUNTY 12/4/2015 10:40:55 AM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-15-07174 JOHN DOE I, INDIVIDUALLY AND AS § IN THE DISTRICT COURT NEXT FRIEND TO JOHN DOE II, A MINOR § Plaintiffs § § VS. § § THE ANDERSON PRIVATE SCHOOL, § WILLIAM C. ANDERSON, INDIVIDUALLY, § DALLAS COUNTY, TEXAS LEVONNA C. ANDERSON, § INDIVIDUALLY, ALEXANDER A. § ANDERSON, INDIVIDUALLY, RIPLEY § ENTERTAINMENT, INC., and JIM § PATTISON U.S.A., INC. § 44TH-B JUDICIAL DISTRICT DEFENDANT ALEXANDER A. ANDERSON’ S MOTION TO COMPEL PLAINTFF JOHN DOE I TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Defendant, Alexander A. Anderson (Defendant), and files this Motion to Compel against Plaintiff John Doe I (Plaintiff), and respectfully shows the Court: Relevant Procedural and Factual History 1. The Court signed an Agreed Uniform Scheduling Order (Level 3) scheduling order on August 3, 2015 that states each party shall have 50 interrogatories. See Agreed Uniform Scheduling Order (Level 3) ¶ 4 (on file with the Court). Then on August 17, 2015 the parties filed a Rule 11 Agreement amending portions of the Court’s Uniform Order. Notably, the parties’ Rule 11 Agreement does not in any way change or limit the number of interrogatories allowed by each party in the Agreed Uniform Scheduling Order (Level 3). 2. On October 26, 2015 Defendant served on Plaintiff “Defendant Alexander A. Anderson’s First Set of Interrogatories, First Requests for Production, and First Requests for Admission” (Discovery Requests). See Ex. 1. Plaintiff responded to the Discovery Requests Defendant Alexander A. Anderson’s Motion to Compel Plaintiff John Doe I Page 1 of 9 with meritless objections. See Ex. 2, Plaintiff John Doe I’s Answers, Responses and Objections to Alexander A. Anderson’s First Set of Interrogatories, First Requests for Production, and First Requests for Admission (Plaintiff’s Response). 3. Additionally, along with making meritless formulaic objections and in direct contravention with the rules of civil procedure which requires production of responsive documents with discovery responses, Plaintiff failed to produce any responsive documents. See Tex. R. Civ. P. 193.2(b) & cmt. 2 (noting that party has an obligation to produce any items to the extent that it does not object); Tex. R. Civ. P. 196.3(a) (stating that a party is required to produce all items in their possession, custody or control). 4. At issue in this Motion to Compel are Requests for Production numbers 1 through 55, Interrogatories numbers 1, 2, 3, 6, 7, 9, 10, 13, 15, 16, 17, 18, 19, 20, 21, 22, and 23; and Request for Admission numbers 13 (p.27), 13 1 (p.32), and 14. Argument and Authorities 2 5. As a threshold matter, Plaintiff has wholly failed to verify his responses to Defendant’s interrogatories as required by Texas Rule of Civil Procedure 197.2(d) & cmt. 2. 6. Further, Plaintiff, without producing a single responsive document or item and in response has stated instead that “Plaintiff will present all such evidence at trial . . .” and generally that Plaintiff “will produce” responsive documents. See e.g., Ex. 2. resp. to Interrogatory number 9 and nearly all responses to Defendant’s Requests for Production. However, the Texas Rules of Civil Procedure require that all available responsive documents in the party’s actual or constructive possession be provided with a party’s discovery responses. See e.g., Tex. R. Civ. P. 1 Requests for Admission were erroneously duplicated in Defendant’s Discovery Requests, therefore a page reference in Plaintiff’s Response is provided. 2 This section is not meant to enumerate the entirety of Plaintiff’s impermissible and obstructive responses, it is merely meant to highlight the more egregious nonresponsive items. Defendant Alexander A. Anderson’s Motion to Compel Plaintiff John Doe I Page 2 of 9 193.1, 193.2(b), 196.3(a). And, that if documents are not produced, that the responding party state a specific time and place for production. Instead, Plaintiff asserts that he, and not the rules, will dictate when his responses will be forthcoming, up to and including his intent to withhold responsive information until trial. In a case such as this, where after six months the Plaintiffs have not supported their allegations with any facts 3 and those allegations have been investigated and dismissed by two independent investigative agencies, Plaintiff’s position on his intent to withhold information, failure to produce validly requested information appropriately related to deciphering the factual basis of the Plaintiffs’ claims, is highly prejudicial to Defendant’s ability to defend against what are as of this filing, not only wholly unsubstantiated claims but claims investigated and determined to be unfounded. See Ex. A to Def.’s Discovery Requests in Ex. 1 hereto, Grand Prairie Police Department Report (stating John Doe I’s claims were “unfounded”); Ex. 3, Correspondence and Report of Texas Department of Family and Protective Services (stating that Alexander A. Anderson had “no role” and that no child was exploited, abused or neglected in Defendants’ care). 7. Further, the Court’s Agreed Uniform Scheduling Order (Level 3) clearly states that each party shall have fifty (50) interrogatories. See Agreed Uniform Scheduling Order (Level 3) ¶ 4. Despite this clear language, Plaintiff, relying generally on the Texas Rules of Civil Procedure with no specific cite thereto, beginning with his response to Defendant’s Request for Interrogatory number 16 and continuing through interrogatory number 23, objects asserting that Defendant has exceeded his allotted number of interrogatories and discreet subparts. See Ex. 2. Not only is Plaintiff’s objection based on excessive requests unsupported by citation to any specific authority, it is in direct contradiction to the clear language of the Court’s Order allowing 3 See Defendants’ Special Exceptions (on file with the Court). Defendant Alexander A. Anderson’s Motion to Compel Plaintiff John Doe I Page 3 of 9 fifty (50) interrogatories to each party. Further, reviewing Defendant’s interrogatories numbered 1 through 15 none of those interrogatories can be construed to contain more than a single interrogatory and allowable supporting information as recognized by the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 190 cmt. 3 (identifying a discreet subpart as information that is not logically or factually related to the primary interrogatory). 8. Plaintiff’s remaining objections to Defendant’s interrogatories are meritless, form objections intended solely to prevent Defendant’s from obtaining any detail about the Plaintiffs’ vague, unsubstantiated allegation of sexual abuse. Despite knowing that two independent agencies investigated and dismissed Plaintiff John Doe I’s claims that Defendant Alexander A. Anderson sexually abused John Doe II, John Doe I filed the present lawsuit. See Exs. C, D. To date, nearly six months into the lawsuit within which Plaintiffs have still not provided any factual basis for their claims, John Doe I now takes the position that information about the factual basis or persons with potential information about the factual basis of his claims are not proper subjects of discovery. In example, (1) in his response to Defendant’s Interrogatory No. 1, Plaintiff takes the position that a request for information about persons with an ability to observe, work with or communicate with John Doe II is overbroad, unduly burdensome, harassing, not relevant, would not lead to admissible evidence, and is somehow vague or confusing; (2) in his response to Defendant’s Interrogatory No. 2, Plaintiff makes similar form objections to Defendant’s request for information about persons with whom John Doe I has discussed the allegations that serve as the basis for all of his claims, and (3) in his response to Defendant’s Interrogatory number 3, Plaintiff goes so far as to assert physician/patient privilege with respect to his communications regarding the abuse with John Doe II’s birth mother, Charlotte Ice, and others. See Ex. 2. Defendant Alexander A. Anderson’s Motion to Compel Plaintiff John Doe I Page 4 of 9 9. Even if such privilege applied, which it does not because Plaintiffs waived such privilege by relying on John Doe II’s mental and physical condition for their claims, it is highly unlikely that all communications with the parties alleged to enjoy the asserted privilege would, in fact, qualify for that privilege—moreover, Plaintiff did not produce any privilege log with his responses. See Tex. R. Evid. 509(e)(4), 510(d)(5); Ex. 1. Moreover, to the degree that the records sought are medical or other records about John Doe II, Plaintiff’s son, Plaintiff, as John Doe II’s parent, has superior right to those records over any third-party holding them and as such is required to produce them as those records are within John Doe I’s possession, custody and control. 10. Plaintiff has lodged similar form objections to requests for information about John Doe II’s prior schools and why John Doe II no longer attends those schools (Defendant’s Interrogatories number 6 and 7, both at the very least relevant to determining any past history of allegations of abuse by the plaintiffs); a request for the list of medical tests that confirm that John Doe II was sexually abused on October 31, 2014 (Defendant’s Interrogatory number 10, which Plaintiff somehow feels is overbroad, unduly burdensome and harassing); and requests for information related to or support Plaintiffs’ own allegations (see, in example, responses to Defendant’s requests for production numbers 12 through 19, 46, 51, and 52 and interrogatory number 14). 11. Plaintiff’s reliance on Loftin v. Martin as precluding Defendant’s contention discovery in this matter is misplaced. See generally, Ex. B. Loftin stands for the proposition that a requesting party cannot simply request all evidence that support the responding party’s allegations as a whole. See Loftin v. Martin, 776 S.W.2d 145, 148 (Tex. 1989), disapproved of on other grounds by Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding). The Defendant Alexander A. Anderson’s Motion to Compel Plaintiff John Doe I Page 5 of 9 Court’s main complaint was that the request in Loftin lacked specificity, and as such, was vague, broad and unclear. See id. at 148. The Court in Loftin focused on the fact that the request did not identify any particular class or type of documents. Id. Subsequent to Loftin, Courts have applied Loftin to allow discovery of documents related to specific contentions or items at issue in the case at bar. 12. In example, in Chamberlain v. Cherry, the Amarillo Court of Appeals, discussing Loftin, concluded that a request for particular classes or types of documents was permissible. 818 S.W.2d 201, 204 (Tex. App.—Amarillo 1991, no pet.) (holding that a request for production of “any and all leases or rental agreements, deposit agreements, and related documents concerning or pertaining to all or part of the property subject of this suit for the period since July 31, 1989” was within the bounds of acceptable discovery ). Likewise, in In re Waste Mgmt. of Tex., Inc., the Texarkana Court of Appeals distinguished the generic request in Loftin—“all evidence that supports Lumbermens’ allegations”—and allowed as properly propounded, requests for production information that were narrowly tailored to a specific aspect, item, or allegation at issue in the lawsuit. 392 S.W.3d 861, 872 (Tex. App.—Texarkana 2013, no pet.). Here the objected to requests within which Plaintiff assets Loftin in support of his objection are, unlike the general request rejected in Loftin, all narrowly tailored by time, subject matter, and category of documents sought. Further, all are directly related to an issue in contention in this case. 13. Moreover, to the degree that Plaintiff complains that any request violates the attorney-client or “investigative” privilege, as noted above, he has not provided any privilege log. 14. In his responses, Plaintiff asserts that he may designate several fact witnesses as non-testifying experts. To the degree that Plaintiff intends to do so, because he has not yet Defendant Alexander A. Anderson’s Motion to Compel Plaintiff John Doe I Page 6 of 9 asserted any such designation, for the purposes of Defendant’s discovery and Plaintiff’s responses, those persons are strictly fact witnesses and there are no expert-based restrictions or limitations on Defendant’s inquiries. Further, even if Plaintiff were to designate those persons identified in its Discovery Responses as non-retained experts, the knowledge and opinions of any of those parties that was an active participant in the events material to the lawsuit are discoverable. See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 554 (Tex. 1990) (“The factual knowledge and opinions acquired by an individual who is an expert and an active participant in the events material to the lawsuit are discoverable. This information is not shielded from discovery by merely changing the designation of a person with knowledge of relevant facts to a ‘consulting-only expert.’”). 15. And, finally with respect to Defendant’s request for the Halloween costume worn by John Doe II on the date of the alleged assault, Plaintiff’s impermissibly attempt to make such production conditional upon Defendant providing the “exact reasons for the Request.” See Ex. 2 p.48 (response to Defendant’s Request for Production number 53). This is not a valid objection and Plaintiff is in no position to mandate that Defendant provide any further information beyond his properly lodged and appropriately tailored request. PRAYER Accordingly, Defendants request that this Court Order Defendant to comply with the Texas Rules of Civil Procedure, by fully and completely responding to the Defendant’s Discovery Requests and requiring Plaintiff to provide the required verification to the interrogatories contained therein. Defendant further prays for any and all relief to which they shows themselves entitled, whether pleaded or unplead. Defendant Alexander A. Anderson’s Motion to Compel Plaintiff John Doe I Page 7 of 9 Respectfully Submitted, By /s/ Robert Hammer_______ Robert W. Hammer State Bar No.: 08854780 William H. Kincaid State Bar No.: 11431500 ROBERT W. HAMMER 300 Legacy Downs Drive Fort Worth, Texas 76126 Telephone 817/ 332-8266 Telefax 817/ 332-8708 robert@rhammerlaw.com AND WILLIAM H. KINCAID Box 457 Sanger, Texas 76266 Telephone 940/ 372-3598 whk4888@yahoo.com ATTORNEYS FOR DFENDANTS THE ANDERSON PRIVATE SCHOOL, WILLIAM C. ANDERSON, LeVONNA C. ANDERSON, and ALEXANDER A. ANDERSON Defendant Alexander A. Anderson’s Motion to Compel Plaintiff John Doe I Page 8 of 9 CERTIFICATE OF CONFERENCE I certify that on December 3rd, 2015, I conducted a conference with Plaintiff John Doe I’s counsel at which I attempted to have a substantive discussion on the items presented to the Court in this motion and that despite best efforts the counsel have not been able to resolve the matters presented. By /s/ Robert Hammer_______ Robert W. Hammer CERTIFICATE OF SERVICE I certify that a true and correct copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on this the 4th day of December, 2015, as follows: John D. Sloan, Jr. Douglas W. Lukasik SLOAN MATNEY, LLP 3838 Oak Lawn Ave., Ste. 1200 Dallas, Texas 75219 jsloan@sloanmatney.com dlukasik@sloanmatney.com (f) 214-237-5474 Attorneys for Plaintiffs S. Todd Parks WALTERS, BALIDO & CRAIN, L.L.P. 10440 North Central Expressway Meadow Park Tower, Suite 1500 Dallas, Texas 75231 todd.parks@wbclawfirm.com parksedocsnotifications@wbclawfirm.com (f) 214-760-1670 By /s/ Robert Hammer_______ Robert W. Hammer Defendant Alexander A. Anderson’s Motion to Compel Plaintiff John Doe I Page 9 of 9