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FILED
11/3/2023 5:53 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Brandon Keys DEPUTY
NO. DC-20-08922
VICKY L. MOULTON, IN THE DISTRICT COURT
Plaintiff 1
M
v. 1
McCLAIN’S R.V. SUPERSTORE
FORT WORTH, INC., /d/b/a
McCLAIN’S RV FORT WORTH, 44™ JUDICIAL DISTRICT
CORNERSTONE UNITED
ADMINISTRATIVE SERVICES, INC. 1
d/b/a CORNERSTONE UNITED,
FOREST RIVER MANUFACTURING, LLC 1
and BANK OF AMERICA, N.A. DALLAS COUNTY, TEXAS
PLAINTIFF VICKY L. MOULTON’S AMENDED MOTION TO COMPEL
DISCOVERY, FOR ENFORCEMENT OF RULE 11 AGREEMENT, AND FOR
AWARD OF ATTORNEYS FEES FROM DEFENDANT BANK OF AMERICA, N.A.
COMES NOW PLAINTIFF VICKY MOULTON (“Movant” or “Plaintiff’) and files this
Amended Motion to Compel Defendant Bank of America, N.A., ("BOA" or “Defendant”) to
Respond to Plaintiff’s written discovery including Requests for Disclosure, Requests for
Production and Interrogatoris, and in support would show the Court as follows:
I. INTRODUCTION
This case is set for trial on November 27, 2023.'
Il. OVERVIEW; BASIS FOR AMENDMENT TO MOTION
A. Under the Rules, Plaintiff is entitled to an order to compel BOA
to correct its Defective Discovery Responses Served After the
Motion to Compel was originally filed.
‘Factual background is set fourth in the Motion to Compel originally filed on May 26.
Plaintiff's Original Petition alleged Plaintiff had purchased a “Sunseeker” Recreational Vehicle (“RV”)
from retailer Defendant McClain’s RV Fort Worth and financed by a Retail Installment Contract which
Defendant McClain's assigned to Defendant Bank of America which installments are payable
PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL
DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE1
Plaintiff's original Motion to Compel Discovery And for Award of Attomeys Fees
("Motion") From BOA was filed on May 26, 2023. At that time BOA had not filed ANY responses
to Plaintiff's discovery Requests. After the original Motion was filed, Defendant served its late
tesponses, but the responses were ambiguous and evasive and otherwise failed to comply with the
Rules. A copy of BOA's Responses are attached as Exhibit C. Plaintiff has therefore amended
its Motion to address BOA's defective discovery responses filed after the motion to compel.
Pursuant to the Rules of Civil Procedure, Plaintiff is entitled to an order overruling BOA's objections
served after the time allowed and otherwise invalid, and requiring Defendant to serve full and
complete and non-evasive responses to Plaintiff's discovery requests which is now the issue, rather
than the total failure to file any response as was the case when the Motion to Compel was originally
filed.
B. Additional_grounds: Plaintiff is entitled to enforcement of the June 23
R ule £511 An
suite In Which
Which BOA Agreed to
DUA Agreed to Serve "Proper" Discove
Serve "Proper"! Discovery Responses.
Responses.
Plaintiff asserts enforcement of the parties' Rule 11 Agreement as an alternative grounds for
an order to compel discovery. In addition to its Motion to Compel against BOA, Plaintiff had filed
a Motion to Compel against Defendant Mc McClain's RV Superstore Fort Worth, Inc., ("McClain's
RV")? On June 23, 2023, while both the above motions to compel against BOA and McClain's were
still pending, Plaintiff, BOA, McClain's RV and Comerstone United, Inc. ("Cornerstone") entered
in to a Rule 11 Agreement, a copy of which is attached as Exhibit D. The Rule 11 provided in
pertinent part:
"9
Plaintiff's Motion to Compel Discovery from Defendant BOA(filed May 26,
*That motion was filed February 14, 2023.
PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL
DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A.
PAGE2
2023) and Motion to Compel Discovery from Defendant McClain’s RV
(filed February 14, 2023) shall be granted and Defendants agree to provide
proper responses to cure deficiencies asserted in such Motions within 21
days of entry of an order to compel; " (emphasis supplied)
The Agreement acknowledges that there are "deficiencies" in Defendants’ responses. and that
motions to compel "shall be granted." Defendant BOA and McClain's agreed "to provide proper
responses to cure deficiencies asserted in the such Motions."
Pursuant to the Agreement, BOA finally served responses to Plaintiff's discovery requests
on July 28, 2023. As discussed in more detail below, the responses were evasive, ambiguous and
otherwise failed to comply with requirements of the Rules. Plaintiff asserts enforcement of the Rule
1] agreement as an alternative grounds for this Amended Motion to Compel.
Cc. All of Defendant's objections must be overruled as they have been waived by
failure to respond in the time allowed and obscured by numerous invalid
objections .
Pursuant to TRCP Rules 196.1, 197.1 and 198.2, responses to requests for production,
interrogatories and requests for admission are all due within 30 days after service of the discovery.
TRCP Rule 193.2 (e) provides:
"(c) Waiver of Objection. An objection that is not made within the time required,
or that is obscured with numerous unfounded objections, is waived unless the Court
excuses the waiver for good cause shown."
BOA FAILED to file responses to Plaintiff's discovery requests within 30 days of the date served,
all objections BOA may assert have been waived. Additionally, its objections were the same
"boilerplate" for every request, regardless of the subject of the request. Valid objections, ifany, were
“obscured with numerous unfounded objections" and therefore were waived.
PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL
DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE3
il. BRIEF HISTORY OF DISCOVERY DISPUTE
A. BOA Serves Deficient Responses to Plaintiff's Request for Disclosur
Plaintiff served Requests for Disclosure in Plaintiff's First Amended Original Petition filed
June 30, 2020. The three Defendants, McClain's RV, Bank of America, and Cornerstone United
served a joint response to the Request for Disclosure but failed to comply with the Request
fo names
of persons with knowledge of material facts. The bertinent portions Defendants’ Joint Response
is attached as Exhibit A and discussed in more detail below.
B BOA Fails to Serve ANY Responses to Plaintiff's First Set of
Requests for Admission, Requests for Production and
Interrogatories until after Plaintiff filed her Motion to Compel.
On October 18, 2021, Plaintiff served Respondent Bank of America with Plaintiff Vicky
Moulton’s First Discovery Requests, consisting of Requests for Admission, Requests for Productio
n
and Interrogatories. A copy of Plaintiff's Requests are attached hereto as Exhibit B. Repos
to Plaintiff's aforesaid First Set of Requests for Production, Requests for Admission and
Interrogatories were due on or about November 17, 2021. As of May, 2023, over 24 months after
service of the discovery, Defendant Bank of America had not totally failed to serve ANY responses
whatsoever.*
Accordingly on May 17, 2023, Plaintiff filed her Motion to Compel Discovery and for Award
of Attorneys Fees from Defendant Bank of America. Not until July 28, 2023, after the filing of the
motion to compel, did Defendant Bank of America serve its responses, copies of which are attached
* Plaintiff's Requests for Admission which are therefore deemed admitted.
PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL
DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A.
PAGE 4
as Exhibit C.
Cc. The Responses BOA served late are deficient.
As explained below, BOA'S responses did not comply with the Rules of Civil
Procedure
requiring full, complete and non-evasive answers to Plaintiff's discovery.
IV. PLAINTIFF'S OBJECTIONS TO BOA's RESPONSES
TO PLAINTIFF’S REQUEST FOR DISCLOSURE
On September 21, 2020, BOA served Responses to Plaintiffs Requests for
Disclosure. In
response to the request for disclosure under TRCP Rule 194.3 (c) “Persons with knowledge of
relevant facts” requiring disclosure of the names, addresses and telephone numbers of persons
having knowledge of relevant facts, Respondent listed corporate entities that are
the Defendants in
this case, and failed to state the name, address, phone number or title
of any specific individuals
having knowledge of relevant facts. Plaintiff excepts and objects to such response
as not sufficient
to identify persons with knowledge of relevant facts and requests that Respondent
be required to
provide the names of specific individuals having relevant knowledge
Vv. PLAINTIFF’S OBJECTIONS TO BOA's RESPONSES TO
REQUESTS FOR PRODUCTION
All of BOA's objections to Plaintiff's Requests for Production have been waived
by failure to respond in the time allowed and therefore must be overrul
ed .
Pursuant to TRCP Rules 196.1, 197.1 and 198.2, responses to requests for
production,
interrogatories and requests for admission are all due within 30 days after service of the
discovery.
Plaintiff's First Discovery Requests to BOA including Requests for Product
ion were served on
October 18, 2021. Responses to Plaintiff's aforesaid First Set of Requests for Producti
on, Requests
‘as in effect for cases filed prior to January 1, 2021.
PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL
DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A.
PAGE5
for Admission and Interrogatories were due on or about November 17, 2021. No responses were
served until July 28, 2023, almost two years late, and certainly more than 30 days after service of
the Request for Production. A copy of Plaintiff's Requests are attached hereto as Exhibit B.°
As of May, 2023, over24 months after service of the discovery, Defendant Bank of America
had totally failed to serve ANY responses whatsoever.’ Asa result, Plaintiff filed her Motion to
Compel Discovery on June 23, 2023. Only after the Motion was filed did BOA serve responses to
Plaintiff's discovery.
TRCP Rule 193.2 (e) provides:
"(c¢) Waiver of Objection. An objection that is not made within the time required,
or that is obscured with numerous unfounded objections, is waived unless the Court
excuses the waiver for good cause shown."
BOA FAILED to file responses to Plaintiff's discovery requests within 30 days of the date served
(nearly two years late), and therefore all objections BOA may assert have been waived and must be
overruled.
B. Alternatively, pursuant to Rule 193.2(¢), Defendant's objections
to Requests for Production Numbers 1, 2, 3, 4, 19, 20, 33 [sic] 32
and 34 [sic] 32 must be overruled as they are obscured by
numerous invalid and mutually exclusive objections .
Waiver - numerous invalid objections (Rule 193.2( ¢)
TRCP Rule 193.2(¢) Waiver of Objection., provides that an objection that is obscured
with numerous unfounded objections, is waived unless the Court excuses the waiver for good cause
7 Plaintiff's Requests for Admission which are therefore deemed admitted.
PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL
DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE6
shown. In violation of Rule BOA's objections to the Requests listed above were the same mutually
exclusive "boilerplate" objections for multiple discovery requests, regardless of the subject of the
request. The objections are contradictory and confusing, ranging from violation of trade secretes,
to equally available to both parties, to claiming protection as confidential and non-public
information. Those objections are "obscured with numerous unfounded objections" and therefore
were waived and must be overruled.
c. Plaintiff's Global Objection to Bank of America's Responses to
Plaintiff's Requests for Production Numbers 1, 2, 5, 6, 11, 13, 14,
15, 16 and 17 as ambiguous and evasive and failing to comply
with TRCP Rule 196.2(b).
1 Ambiguous, evasive and in violation of Rule 196.2(b) Content of Response..
Plaintiff objects to all of the above responses as ambiguous and evasive and in violation of
TRCP Rule 196.2(b) which requires the responding party to answer in one of the four following
Ways:
"(1) production, inspection, or other requested action will be permitted as requested;
(2) the requested items are being served on the requesting party with the response;
(3) production, inspection, or other requested action will take place at a specified time and
place, if the responding party is objecting to the time and place of production; or
(4) no items have been identified--after a diligent search--that are responsive to the request."
In other words, responding parties must state that either production "(1)will be permitted as
requested, . . (2) are being served with the response, (3) will take place at a specified time or place
or (4) after a diligent search no items have been identified that are responsive to the request."
Bank of America's responses fail to comply with any one of the four alternative responses
required by Rule 196.2. All of Responses listed in this part B (see above) follow the same evasive
PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL
DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE7
pattern:
(1) multifarious, long-winded objections followed by an answer "subject to" the objections,
(2) all of the answers that follow the objections consists of a statement that Defendant "has
conducted a reasonable search" and Defendant "directs Plaintiff" to certain documents.
The above responses are deficient because they:
Fail to state that production "will be permitted . as requested" so as to comply with Rule
196.2(b)(1);
Fail to state that "the requested items are being served on the requesting party" so as to comply
with Rule 196.2(b)(2);
Fail to state that "production . . . will take place at a specified time and place" so as to comply
with Rule 196.2(b)(3);
Fail to state that "no items have been identified — after a diligent search — that are responsive to
the request" so as to comply with Rule 196(b)(4).
Defendant Bank of America creates a superficial impression of compliance with Rule
196.2(b)(4) by stating that it has conducted a "reasonable" search. But Defendant then fails to state
that “no items have been identified — after a diligent search — that are responsive to the request" as
required to comply with the Rule. Instead, Defendant "directs Plaintiff" to certain page numbers.
Defendant's above responses do not state that a "diligent search" was made, only that a "reasonable"
search was made. Defendant "directs Plaintiff" to certain page numbers, but fails to state either that
all the responsive documents located by the search have been produced or that there are no items
Tesponsive to the request have been identified.
Defendant's above responses listed conclude with the statement that "Defendant has not
withheld any documents based on its objections." This response does NOT affirm that all
documents responsive to request will be produced, have been produced, or will be produced as
PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL
DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE8
specified time and place; it means only that Defendant has not withheld documents based on its
objections. It leaves open that possibility that Defendant simply refused to produce one or more
documents to which no objection was asserted. The answer potentially allows Defendant to escape
compliance by conducting a search but refusing to state whether the documents it has produced
constitute all of the requested documents it found or that no items responsive to the request have
been identified.
Moreover, the language that Defendant "directs Plaint to" certain page numbers does not
comply with Rule 196.2 because there is no statement that the page numbers in question constitute
all of the requested documents." Nor does it expressly state that the pages to which Plaintiff is
directed are the items requested. Defendant could be directing Plaintiff to totally irrelevant
documents.
D. Request to Overrule BOA's Invalid Objections to Requests for
Production which it fails to answer and Order BOA to Serve a
Proper Answer:_Numbers 3, 4, 19, 20, 33/sic/32 and 34/fsic]33
As to the above Requests, Defendant has not only asserted invalid objections but has also
failed to serve ANY answer. Requests Numbers 3, 4, 19, 20, 33/sic]32 and 34/sic]/33. The court
should therefore overrule such objections and order BOA to answer.
E. BOA's Improper objection to protect a privilege and failure to
provide a withholding statement.
Plaintiff objects t o the following improper objection to protect a privilege that BOA
asserts in its response to Request No. 1, 2 and 3:
"BANA [Bank of America] objects to this Request to the extent it seeks information
that is protected by the attorney client privilege and/or the work product doctrine."
PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL
DISCOVERY FROM DEFENDANT BANK OF AMERICA NA. PAGE9
Such objection violates TRCP Rule 193.2 Objecting to Written Discovery and TRCP Rule 193.3
Asserting a Privilege. Rule 193.2(f) provides that:
"(£) No Objection to Preserve Privilege. A party should not object to a request for
written discovery on the grounds that it calls for production of material or
information that is privileged but should instead comply with Rule 193.3." (Emphasis
added)
Rule 193.3 provides that:
"A party may preserve a privilege from written discovery in accordance with this
subdivision.
(a) Withholding privileged material or information. A party who claims that
material or information responsive to written discovery is privileged may withhold
the privileged material or information from the response. The party must state--in the
response (or an amended or supplemental response) or in a separate document--that:
(1) information or material responsive to the request or required disclosure has been
withheld,
(2) the request or required disclosure to which the information or material relates, and
(3) the privilege or privileges asserted.
Defendant's Responses cited above do not state if any material has been withheld, nor
the responses to which relates. Pursuant to Rule 193.3 the objection must be overruled and
BOA ordered to provide a withholding statement.
BOA's Improper Objections to overbroad, unduly burdensome, etc.
PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL
DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE 10
Defendant also raises unsupported objections* on which Defendant as the party
resisting discovery bears th e burden of proof. See TRCP Rule 193.4(a) “The party making
the objection or asserting the privilege must present any evidence necessary to support the
privilege." Defendant asserts the same objections en masse to all the Responses, regardless
of whether the objections are appropriate to the specific objection to which they are directed.
Plaintiff states that Defendant has not and cannot support objections asserted and all
objections should be overruled.
VI. PLAINTIFF’S RESPONSES TO BOA's OBJECTIONS
TO PLAINTIFF’S FIRST SET OF INTERROGATORIES
A. All of BOA's objections to Plaintiff's Interrogatories have been waived
by failure to respond in the time allowed and by obscuring valid
objections (if any) with numerous invalid objections and therefore must
be overruled .
As discussed under Part III above, TRCP Rules 196.1, 197.1 and 198.2, provide that
responses to requests for production, interrogatories and requests for admission are all due
within 30 days after service of the discovery.
Plaintiff's Interrogatories to BOA were served on October 18, 2021. Responses to
Plaintiff's Interrogatories were due on or about November 17, 2021. Despite demands by
Plaintiff, as of May, 2023, BOA had not served responses. Therefore, on May 26, 2023,
Plaintiff file her Motion to Compel Against BOA. On July 28, 2023, only after filing the
Motion, did BOA server responses, but the Responses are deficient. A copy of Plaintiff's
5 E.g., "BANA objects to the extent it is irrelevant, ... BANA objects to the extent it is public
information ... equally available to Plaintiff ... BANA objects to the extent it seeks the production of
confidential, business proprietary, trade secret or other non-public information of BANA..."
PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL
DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE 11
First Discovery Requests including the Interrogatories are attached as Exhibit B and BOA's
Responses are attached as Exhibit C. discussed above, As of May, 2023, over 24 months
after service of the discovery, Defendant Bank of America had totally failed to serve any
responses whatsoever.’
TRCP Rule 193.2 (e) provides:
"(c) Waiver of Objection. An objection that is not made within the time
required, or that is obscured with numerous unfounded objections, is waived
unless the Court excuses the waiver for good cause shown."
BOA FAILED to serve responses to Plaintiff's Interrogatories within 30 days of the date
served (nearly two years late), and therefore all objections BOA may assert have been
waived and must be overruled.
As discussed below many of BOA's objections were the same mutually exclusive
"boilerplate" objections for multiple discovery requests, regardless of the subject of the
request. Those objections were “obscured with numerous unfounded objections" and
therefore were waived.
B. Alternatively, pursuant to Rule 193.2(e), BOA's objections to
Interrogatories Number _1, 2, 8, 9 and 10 must be overruled a:
they are obscured by numerous invalid and mutually exclusiv
objections .
Waiver - numerous invalid objections (Rule 193.2(e)
TRCP Rule 193.2 (ec) Waiver of Objection., provides that an objection that is
obscured with numerous unfounded objections, is waived unless the Court excuses the
° Plaintiff's Requests for Admission which are therefore deemed admitted.
PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL
DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE 12
waiver for good cause shown. In violation of Rule BOA's objections to the Interrogatories
listed above were the same mutually exclusive "boilerplate" objections for multiple
discovery requests, regardless of the subject of the request. The objections are contradictory
and confusing, ranging from violation of trade secretes, to equally available to both parties,
to claiming protection as confidential and non-public information. Those objections are
"obscured with numerous unfounded objections" and therefore were waived and must be
overruled.
Cc. Plaintiff's Specific Objections to Bank of America's
Responses to Plaintiff's Interrogatories Numbers 1, 2, 8,
9,10 and 14
Plaintiff objects to BOA'S responses to the following Interrogatories on the grounds stated
below:
Objection to BOA Responseto Interrogatory No. 1: Plaintiff objects on grounds that
(1) Defendant's answer "BANA refers Plaintiff to its document production ... BANA 001-
41" is ambiguous in that the page range given encompasses numerous different documents
which require interpretation in order to extract any meaningful answer; moreover, the
response does not comply with TRCP Rule 197.2 “Response to Interrogatories” part ( ¢ )
“Option to Produce Records” which specifies that the following conditions must be
satisfied before a party may answer an interrogatory by producing records:
“Tf the answer to an interrogatory may be derived or ascertained from .. . the
responding parties business records and the burden of deriving or
ascertaining the answer is substantially the same for the requesting party as
for the responding party, the responding party may answer the interrogatory
by specifying and, if applicable, producing the records or compilation,
abstract or summary of the records.”
PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL
DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE 13
“The records from which the answer may be derived or ascertained must be
specified in sufficient detail to permit the requesting party to locate and
identify them as readily as can the responding party.”
Defendant’s Response fails to comply with Rule 197.2( c) in the following respects:
(1) the answer to the Interrogatory cannot be ascertained from the business records referred
to in connection with such Response because the records do not identify the person or
persons who made has the original Installment Contract and where it is locate as required
to answer the Interrogatory; or alternatively, the answer cannot be ascertained without the
aid of a witness familiar with BOA’s business forms and practices because the records in
question contain numerous technical terms, abbreviations and incomplete phrases used in
the Defendant’s trade but not known in common usage and certainly not known to Plaintiff.
Consequently, the answer to Interrogatory cannot be derived solely from the records
themselves.
(2) the records from which the answer may be derived or ascertained are not “specified in
ufficient detail to permit the requesting party to locate and identify them as readily as can
the responding party” because the records produced in connection with the such Response
include 41 or more pages relate to many different subjects, yet the Response does not
provide a specific page reference or other means to identify which particular page relevant
to the Interrogatory.
(3) the records from which the answer may be derived or ascertained are not “specified in
sufficient detail to permit the requestin to locate and identi: them as readily as can
the responding party” because the records produced in connection with the such Response
cannot be located or identified by Plaintiff as readily as they can be located and identified by
PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL
DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE 14
Defendant as the requesting party.
Plaintiff's objection to BOA Response to Interrogatory No. 2. Same objection as
stated to No. 1.
Plaintiff's objection to BOA Response to Interrogatory No. 8. Same objection as
stated to No . 1 plus no answer is provided.
Plaintiffs objection to BOA Response to Interrogatory No. 9 and 10. Same objection
as state to No. 1 plus no answer is provided.
Plaintiff's objection to BOA response to Interrogatory No. 14: Interrogatory No. 14
states: Pursuant to TRCP Rule 192.3(d), state the name, address, and telephone number of
any witness Defendant McClain’s RV expects to call to testify at trial.”
BOA answers that "such information does not exist in BANA's custody." Such response is
vague and incomplete. See Tex. R. Civ. P. Rule 192.3(d) which requires a party to disclose its
trial witnesses. Trial Witnesses” which provides in pertinent part:“A party may obtain
discovery of the name, address, and telephone number of any person who is expected to be
called to testify at trial. This paragraph does not apply to rebuttal or impeaching witnesses
the necessity of whose testimony cannot reasonably be anticipated before trial.” The above
information may be obtained through an Interrogatory. Jamail vy Anchor Mortgage Svcs,
809 S.W. 2d 221, 223 (Tex. 1991). Defendant’s Answer fails to provide the “name, address
and telephone number of any person “who is expected to be called at trial” as required by
Rule 192.3(d).
PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL
DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE 15
Respectfully submitted,
/s/ Robert D. Hemphill
Robert D. Hemphill
Texas Bar No. 09413800
rhemphill@pamlaw.com
PALMER LEHMAN SANDBERG PLLC
Campbell Centre I, Suite 1111
8350 North Central Expressway
Dallas, Texas 75206
Tel. (214)242-6498
Fax. (214)265-1950
ATTORNEY FOR PLAINTIFF
VICKY L. MOULTON
CERTIFICATE OF SERVICE
I certify that the foregoing Amended Motion has been served upon all counsel of record
through the e-file system in accordance with the Texas Rules of Civil Procedure on this the 3"
day of November, 2023.
/s/ Robert D. Hemphill
Robert D. Hemphill
PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL
DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE 16
EXHIBIT A
CAUSE NO. DC-20-08922
VICKY L. MOULTON IN THE DISTRICT COURT
vs.
McCLAIN'S R.V. SUPERSTORE
FORT WORTH, INC., /d/b/a 44TH JUDICIAL DISTRICT
McCLAIN'S RV FORT WORTH,
CORNERSTONE UNITED
ADMINISTRATIVE SERVICES, INC.
d/b/a CORNERSTONE UNITED, §
FOREST RIVER MANUFACTURING, §
LLC and BANK OF AMERICA, N.A. § DALLAS COUNTY, TEXAS
DEFENDANTS’ RESPONSE TO PLAINTIFF’S REQUEST FOR DISCLOSURE
To: Plaintiff, Vicky L. Moulton, by and through her attorneys of record, Robert D. Hemphill 5
Palmer Lehman Sandberg, 8350 N Central Expressway, Suite 1111, Dallas, Texas 75206.
COME NOW, Defendants, MCCLAIN’S R.V. SUPERSTORE FORT WORTH, INC.,
D/B/A MCCLAIN’S RV FORT WORTH, CORNERSTONE UNITED ADMINISTRATIVE
SERVICES, INC. D/B/A CORNERSTONE UNITED AND BANK OF AMERICA, N.A.,
(“McClains” or “Defendants”) and serve their Response to Plaintiff's Request for Disclosure
pursuant to Rule 194 of the Texas Rules of Civil Procedure.
Respectfully submitted,
EKVALL & BYRNE, L.L.P.
Koha Sag,
BY.
Charlene R. Echols
State Bar No. 17339100
4450 Sigma Road,Suite 100
Dallas, TX 75244
Telephone: (972) 239-0839
Facsimile: (972) 960-9517
Email: cechols@ekvallbyrne.com
ATTORNEY FOR DEFENDANTS
Defendants’ Response to Plaintiff's Request for Disclosure Page |
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the foregoing instrument was served upon
all counsel of record herein on this 21 st day of September, 2020.
Via E-service
Robert D. Hemphill
Palmer Lehman Sandberg
8350 N Central Expressway
Suite 1111
Dallas, Texas 75206
Via E-service
Craig D. Dillard
Robert Arthur
FOLEY & LARDNER LLP
1000 Louisiana Street, Suite 2000
Houston, Texas 77002-2099
Role %x,
Charlene R. Echols
Defendants’ Response to Plaintiff's Request for Disclosure Page 2
RESPONSES TO REQUEST FOR DISCLOSURE
a) Correct names of the parties to the lawsuit.
RESPONSE:
Defendants believe the parties have been properly named.
b) Name, address and telephone number of any potential parties.
RESPONSE:
At this time, Defendant is not aware of any potential parties.
c) Legal theories and, in general the factual bases of Defendant’s claims or defenses.
RESPONSE:
Insofar as defenses are concerned, Defendants hereby enter a general denial, as is
permitted by Rule 92 of the Texas Rules of Civil Procedure, and requests that Plaintiff
be required to prove, by a preponderance of the evidence, the charges and allegations
which Plaintiff has made against Defendants, as is required by the law and the
Constitution of the State of Texas.
By way of affirmative defense, and in the alternative if such be necessary, Plaintiff’s
damages, if any, were caused by an act of God and/or normal wear and tear and were
not caused by any act or omission on the part of Defendants.
By way of affirmative defense, and in the alternative if such be necessary, Plaintiffs
claims under the Texas Deceptive Trade Practices Act are barred as their alleged
claims are strictly contractual in nature.
By way of affirmative defense, and in the alternative if such be necessary, Plaintiff's
damages, if any, were caused by a new and independent cause, superseding
cause, and/or intervening cause.
By way of affirmative defense, and in the alternative if such be necessary, if Plaintiff
was injured, Plaintiff failed to take reasonable steps to mitigate their alleged damages.
By way of affirmative defense, and in the alternative if such be necessary, in the
unlikely event that Defendant is held liable in the above-referenced matter, the
damages recoverable should be limited to the amounts and conditions set forth in
Chapter 41 of the Texas Civil Practice and Remedies Code.
Defendants’ Response to Plaintiff's Request for Disclosure Page 3
By way of affirmative defense, and in the alternative if such be necessary, in the
unlikely event that Defendants are held liable in the above-referenced matter, the
damages recoverable under the Texas Business and Commerce Code§ 17.50 et. seq.
are limited by the statutory caps set forth therein. Those caps include, but are not
limited to, the limitation of recovery of mental anguish damages to three times the
amount of economic damages if the alleged acts are found to be committed knowingly.
Tex. Bus. & Com. Code Ann.§ 17.50(b)(1).
By way of affirmative defense, and in the alternative if such be necessary, Plaintiff’s
alleged damages, if any, were solely and/or proximately caused by Plaintiff’s actions
or inactions. Plaintiff is barred from seeking recovery if the trier-of-fact determines
that Plaintiff's actions or inactions caused more than fifty percent of her alleged
damages or, in the alternative, Defendants are entitled to have Plaintiff's alleged
damages, if any, reduced by the percentage of harm caused by her own actions or
inactions.
Defendant would further show that at the time Plaintiff purchased the subject RV
from Defendant McClain's, Plaintiff signed an Arbitration Agreement. By signing
the Arbitration Agreement, Plaintiff accepted and bound herself to the following:
"that once one of the parties has elected to arbitrate, binding arbitration is the
exclusive method for resolving any and all Claims..." arising from or as a result of the
purchase of the RV from McClain's. Therefore, pursuant to the Arbitration
Agreement, Plaintiff must pursue her claim through arbitration.
Pleading further in the affirmative, Defendant would further assert that Plaintiff's
complaints are time barred by the statute of limitations.
Defendants reserves the right to amend their pleadings to assert affirmative defenses,
contributory negligence, and to bring a counter-claim and/or third-party claim,
should same be warranted.
d) State the amount of any method of calculating economic damages.
RESPONSE:
This request is not applicable to Defendant, since Defendant is not currently making
any claim for affirmative relief in connection with this litigation. Defendants,
however, dispute the damages for which Plaintiff seeks recovery as not being
proximately caused by the subject incident and/or being excessive under the
circumstances.
e) The name, address, and telephone number of persons having knowledge of relevant facts,
and a brief statement of each identified person’s connection with the case.
Defendants’ Response to Plaintiff's Request for Disclosure Page 4
RESPONSE:
Persons presently known to Defendants as having knowledge of relevant facts are
identified on the Addendum attached hereto as Exhibit “A.” Additionally, a brief
statement of the each identified person’s connection with the case is identified on the
Addendum.
For any testifying experts:
(aly the expert’s name, address, and telephone number;
2) the subject matter on which the expert will testify;
(3) the general substance of the expert’s mental impressions and opinions and a brief
summary of the basis for them, or if the expert is not retained by, employed by, or
otherwise subject to the control of the Defendant/Counter-Plaintiff, documents
reflecting such information;
(4) if the expert is retained by, employed by or otherwise subject to the control of the
responding party:
(A) all documents, tangible things, reports, models, or data compilations that
have been provided to, reviewed by, or prepared by or for the expert in
anticipation of the expert’s testimony; and
(B) the expert’s current resume or bibliography.
RESPONSE:
Defendants have not retained any expert witnesses at this time.
8) Any indemnity and insuring agreements described in T.R.C.P. Rule 192.3(f).
RESPONSE:
None.
h) Provide any discoverable settlement agreements;
RESPONSE:
No responsive documents currently in Defendant’s possession, custody or control.
Defendants’ Response to Plaintiff's Request for Disclosure Page 5
i) Any witness statements described in T.R.C.P. Rule 192.3(h).
RESPONSE:
None currently in Defendant’s possession.
jd In a suit alleging physical or mental injury and damages from the occurrence that is the
subject of the case, all medical records and bills that are reasonably related to the injuries
or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such
medical records and bills (Rule 194.2()).
RESPONSE:
This request is not applicable to Defendant since Defendant is not currently
presenting any claim for affirmative relief in this litigation.
k) All medical records and bills obtained by the responding party by virtue of an authorization
furnished by the requesting party (Rule 194.2(k).
RESPONSE:
Not applicable to this subject lawsuit.
) The name, address and telephone number of any person who may be designated as a
responsible third party (Rule 194.2(1)).
RESPONSE:
At this time, Defendant is not aware of any person who may be designated as a
responsible third party.
a
Defendants’ Response to Plaintiff's Request for Disclosure Page 6
ADDENDUM
Vickie L. Moulton
c/o Robert D. Hemphill
Palmer Lehman & Sandberg, PLLC
8350 N. Central Expy., Suite 1111
Dallas, Texas 75206
(214) 242-6498
Plaintiff
McClain’s RV Superstore Fort Worth, Inc. d/b/a McClain’s RV Fort Worth
Cornerstone United Administrative Services, Inc. d/b/a Cornerstone United
Bank of America, N.A.
c/o Charlene R. Echols
Ekvall & Byrne, L.L.P.
4450 Sigma Road, Suite 100
Dallas, Texas 75244
(972) 239-0839
Defendant
Nate McClain
McClain’s RV Superstores
c/o Charlene R. Echols
Ekvall & Byrne, L.L.P.
4450 Sigma Road, Suite 100
Dallas, Texas 75244
(972) 239-0839
Representative of Defendant McClain’s RV Superstore Fort Worth, Inc. d/b/a McClain’s RV
Fort Worth
Forest River, Inc.
c/o Craig D. Dillard
Robert Arthur
FOLEY & LARDNER LLP
1000 Louisiana Street, Suite 2000
Houston, Texas 77002-2099
Telephone: (713) 276-5500
Defendant
All witnesses designated by Plaintiff or any other party.
MOULTON V. MCCLAIN’S RV, ET AL - ADDENDUM Page I
EXHIBIT B
NO. DC-20-08922
VICKY L. MOULTON, IN THE DISTRICT COURT
Plaintiff
v. 1
1
McCLAIN’S R.V. SUPERSTORE y
FORT WORTH, INC., /d/b/a 1
McCLAIN’S RV FORT WORTH, MC 44™ JUDICIAL DISTRICT
CORNERSTONE UNITED
ADMINISTRATIVE SERVICES, INC.
d/b/a CORNERSTONE UNITED,
FOREST RIVER MANUFACTURING, LLC y
and BANK OF AMERICA, N.A. MX DALLAS COUNTY, TEXAS
PLAINTIFF VICKY L. MOULTON’S FIRST DISCOVERY REQUESTS TO
DEFENDANT BANK OF AMERICA N.A.
TO: Defendant Bank of America, N.A. , through its Counsel of Record, Charlene
R. Echols Eckville & Byme, L.L.P., 4450 Sigma Road, Suite 199, Dallas, Texas
75244
COMES NOW VICKY L. MOULTON, Plaintiff in the above cause and pursuant to Tex. R.
Civ Proc. Rule 192, 193, 196, 197 and 198 serves the following Requests for Admission, Requests
for Production and Interrogatories.
Requests for Admission. Pursuant to Rule 198 of the Texas Rules of Civil
Procedure, you are requested to admit or deny the truth of each of the matters set out in the
“Requests for Admission” set out below and to admit the genuineness of each of the relevant
documents described in and exhibited with the attached requested admissions. Each of the matters
of which an admission is requested will be deemed admitted unless, within thirty days after service,
you deliver or cause to be delivered to me a statement denying specifically each matter of which an
admission is requested, objecting to the admission and stating the reason(s) for your objection, or
PLAINTIFF VICKY L. MOULTON’S FIRST DISCOVERY
REQUESTS TO DEFENDANT BANK OF AMERICA, N.A. PAGE1
stating in detail the reason(s) you cannot truthfully admit or deny the matter.
Please note that if, after you submit your responses to these requests for admissions, you leam
that any such response was either incomplete when made, or, although complete and correct when
made, it is no longer complete and correct, you must amend or supplement your response reasonably
promptly after you discover the necessity for such a response. Any amended or supplemental
resp
Preview
FILED 11/3/2023 5:53 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Brandon Keys DEPUTY NO. DC-20-08922 VICKY L. MOULTON, IN THE DISTRICT COURT Plaintiff 1 M v. 1 McCLAIN’S R.V. SUPERSTORE FORT WORTH, INC., /d/b/a McCLAIN’S RV FORT WORTH, 44™ JUDICIAL DISTRICT CORNERSTONE UNITED ADMINISTRATIVE SERVICES, INC. 1 d/b/a CORNERSTONE UNITED, FOREST RIVER MANUFACTURING, LLC 1 and BANK OF AMERICA, N.A. DALLAS COUNTY, TEXAS PLAINTIFF VICKY L. MOULTON’S AMENDED MOTION TO COMPEL DISCOVERY, FOR ENFORCEMENT OF RULE 11 AGREEMENT, AND FOR AWARD OF ATTORNEYS FEES FROM DEFENDANT BANK OF AMERICA, N.A. COMES NOW PLAINTIFF VICKY MOULTON (“Movant” or “Plaintiff’) and files this Amended Motion to Compel Defendant Bank of America, N.A., ("BOA" or “Defendant”) to Respond to Plaintiff’s written discovery including Requests for Disclosure, Requests for Production and Interrogatoris, and in support would show the Court as follows: I. INTRODUCTION This case is set for trial on November 27, 2023.' Il. OVERVIEW; BASIS FOR AMENDMENT TO MOTION A. Under the Rules, Plaintiff is entitled to an order to compel BOA to correct its Defective Discovery Responses Served After the Motion to Compel was originally filed. ‘Factual background is set fourth in the Motion to Compel originally filed on May 26. Plaintiff's Original Petition alleged Plaintiff had purchased a “Sunseeker” Recreational Vehicle (“RV”) from retailer Defendant McClain’s RV Fort Worth and financed by a Retail Installment Contract which Defendant McClain's assigned to Defendant Bank of America which installments are payable PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE1 Plaintiff's original Motion to Compel Discovery And for Award of Attomeys Fees ("Motion") From BOA was filed on May 26, 2023. At that time BOA had not filed ANY responses to Plaintiff's discovery Requests. After the original Motion was filed, Defendant served its late tesponses, but the responses were ambiguous and evasive and otherwise failed to comply with the Rules. A copy of BOA's Responses are attached as Exhibit C. Plaintiff has therefore amended its Motion to address BOA's defective discovery responses filed after the motion to compel. Pursuant to the Rules of Civil Procedure, Plaintiff is entitled to an order overruling BOA's objections served after the time allowed and otherwise invalid, and requiring Defendant to serve full and complete and non-evasive responses to Plaintiff's discovery requests which is now the issue, rather than the total failure to file any response as was the case when the Motion to Compel was originally filed. B. Additional_grounds: Plaintiff is entitled to enforcement of the June 23 R ule £511 An suite In Which Which BOA Agreed to DUA Agreed to Serve "Proper" Discove Serve "Proper"! Discovery Responses. Responses. Plaintiff asserts enforcement of the parties' Rule 11 Agreement as an alternative grounds for an order to compel discovery. In addition to its Motion to Compel against BOA, Plaintiff had filed a Motion to Compel against Defendant Mc McClain's RV Superstore Fort Worth, Inc., ("McClain's RV")? On June 23, 2023, while both the above motions to compel against BOA and McClain's were still pending, Plaintiff, BOA, McClain's RV and Comerstone United, Inc. ("Cornerstone") entered in to a Rule 11 Agreement, a copy of which is attached as Exhibit D. The Rule 11 provided in pertinent part: "9 Plaintiff's Motion to Compel Discovery from Defendant BOA(filed May 26, *That motion was filed February 14, 2023. PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE2 2023) and Motion to Compel Discovery from Defendant McClain’s RV (filed February 14, 2023) shall be granted and Defendants agree to provide proper responses to cure deficiencies asserted in such Motions within 21 days of entry of an order to compel; " (emphasis supplied) The Agreement acknowledges that there are "deficiencies" in Defendants’ responses. and that motions to compel "shall be granted." Defendant BOA and McClain's agreed "to provide proper responses to cure deficiencies asserted in the such Motions." Pursuant to the Agreement, BOA finally served responses to Plaintiff's discovery requests on July 28, 2023. As discussed in more detail below, the responses were evasive, ambiguous and otherwise failed to comply with requirements of the Rules. Plaintiff asserts enforcement of the Rule 1] agreement as an alternative grounds for this Amended Motion to Compel. Cc. All of Defendant's objections must be overruled as they have been waived by failure to respond in the time allowed and obscured by numerous invalid objections . Pursuant to TRCP Rules 196.1, 197.1 and 198.2, responses to requests for production, interrogatories and requests for admission are all due within 30 days after service of the discovery. TRCP Rule 193.2 (e) provides: "(c) Waiver of Objection. An objection that is not made within the time required, or that is obscured with numerous unfounded objections, is waived unless the Court excuses the waiver for good cause shown." BOA FAILED to file responses to Plaintiff's discovery requests within 30 days of the date served, all objections BOA may assert have been waived. Additionally, its objections were the same "boilerplate" for every request, regardless of the subject of the request. Valid objections, ifany, were “obscured with numerous unfounded objections" and therefore were waived. PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE3 il. BRIEF HISTORY OF DISCOVERY DISPUTE A. BOA Serves Deficient Responses to Plaintiff's Request for Disclosur Plaintiff served Requests for Disclosure in Plaintiff's First Amended Original Petition filed June 30, 2020. The three Defendants, McClain's RV, Bank of America, and Cornerstone United served a joint response to the Request for Disclosure but failed to comply with the Request fo names of persons with knowledge of material facts. The bertinent portions Defendants’ Joint Response is attached as Exhibit A and discussed in more detail below. B BOA Fails to Serve ANY Responses to Plaintiff's First Set of Requests for Admission, Requests for Production and Interrogatories until after Plaintiff filed her Motion to Compel. On October 18, 2021, Plaintiff served Respondent Bank of America with Plaintiff Vicky Moulton’s First Discovery Requests, consisting of Requests for Admission, Requests for Productio n and Interrogatories. A copy of Plaintiff's Requests are attached hereto as Exhibit B. Repos to Plaintiff's aforesaid First Set of Requests for Production, Requests for Admission and Interrogatories were due on or about November 17, 2021. As of May, 2023, over 24 months after service of the discovery, Defendant Bank of America had not totally failed to serve ANY responses whatsoever.* Accordingly on May 17, 2023, Plaintiff filed her Motion to Compel Discovery and for Award of Attorneys Fees from Defendant Bank of America. Not until July 28, 2023, after the filing of the motion to compel, did Defendant Bank of America serve its responses, copies of which are attached * Plaintiff's Requests for Admission which are therefore deemed admitted. PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE 4 as Exhibit C. Cc. The Responses BOA served late are deficient. As explained below, BOA'S responses did not comply with the Rules of Civil Procedure requiring full, complete and non-evasive answers to Plaintiff's discovery. IV. PLAINTIFF'S OBJECTIONS TO BOA's RESPONSES TO PLAINTIFF’S REQUEST FOR DISCLOSURE On September 21, 2020, BOA served Responses to Plaintiffs Requests for Disclosure. In response to the request for disclosure under TRCP Rule 194.3 (c) “Persons with knowledge of relevant facts” requiring disclosure of the names, addresses and telephone numbers of persons having knowledge of relevant facts, Respondent listed corporate entities that are the Defendants in this case, and failed to state the name, address, phone number or title of any specific individuals having knowledge of relevant facts. Plaintiff excepts and objects to such response as not sufficient to identify persons with knowledge of relevant facts and requests that Respondent be required to provide the names of specific individuals having relevant knowledge Vv. PLAINTIFF’S OBJECTIONS TO BOA's RESPONSES TO REQUESTS FOR PRODUCTION All of BOA's objections to Plaintiff's Requests for Production have been waived by failure to respond in the time allowed and therefore must be overrul ed . Pursuant to TRCP Rules 196.1, 197.1 and 198.2, responses to requests for production, interrogatories and requests for admission are all due within 30 days after service of the discovery. Plaintiff's First Discovery Requests to BOA including Requests for Product ion were served on October 18, 2021. Responses to Plaintiff's aforesaid First Set of Requests for Producti on, Requests ‘as in effect for cases filed prior to January 1, 2021. PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE5 for Admission and Interrogatories were due on or about November 17, 2021. No responses were served until July 28, 2023, almost two years late, and certainly more than 30 days after service of the Request for Production. A copy of Plaintiff's Requests are attached hereto as Exhibit B.° As of May, 2023, over24 months after service of the discovery, Defendant Bank of America had totally failed to serve ANY responses whatsoever.’ Asa result, Plaintiff filed her Motion to Compel Discovery on June 23, 2023. Only after the Motion was filed did BOA serve responses to Plaintiff's discovery. TRCP Rule 193.2 (e) provides: "(c¢) Waiver of Objection. An objection that is not made within the time required, or that is obscured with numerous unfounded objections, is waived unless the Court excuses the waiver for good cause shown." BOA FAILED to file responses to Plaintiff's discovery requests within 30 days of the date served (nearly two years late), and therefore all objections BOA may assert have been waived and must be overruled. B. Alternatively, pursuant to Rule 193.2(¢), Defendant's objections to Requests for Production Numbers 1, 2, 3, 4, 19, 20, 33 [sic] 32 and 34 [sic] 32 must be overruled as they are obscured by numerous invalid and mutually exclusive objections . Waiver - numerous invalid objections (Rule 193.2( ¢) TRCP Rule 193.2(¢) Waiver of Objection., provides that an objection that is obscured with numerous unfounded objections, is waived unless the Court excuses the waiver for good cause 7 Plaintiff's Requests for Admission which are therefore deemed admitted. PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE6 shown. In violation of Rule BOA's objections to the Requests listed above were the same mutually exclusive "boilerplate" objections for multiple discovery requests, regardless of the subject of the request. The objections are contradictory and confusing, ranging from violation of trade secretes, to equally available to both parties, to claiming protection as confidential and non-public information. Those objections are "obscured with numerous unfounded objections" and therefore were waived and must be overruled. c. Plaintiff's Global Objection to Bank of America's Responses to Plaintiff's Requests for Production Numbers 1, 2, 5, 6, 11, 13, 14, 15, 16 and 17 as ambiguous and evasive and failing to comply with TRCP Rule 196.2(b). 1 Ambiguous, evasive and in violation of Rule 196.2(b) Content of Response.. Plaintiff objects to all of the above responses as ambiguous and evasive and in violation of TRCP Rule 196.2(b) which requires the responding party to answer in one of the four following Ways: "(1) production, inspection, or other requested action will be permitted as requested; (2) the requested items are being served on the requesting party with the response; (3) production, inspection, or other requested action will take place at a specified time and place, if the responding party is objecting to the time and place of production; or (4) no items have been identified--after a diligent search--that are responsive to the request." In other words, responding parties must state that either production "(1)will be permitted as requested, . . (2) are being served with the response, (3) will take place at a specified time or place or (4) after a diligent search no items have been identified that are responsive to the request." Bank of America's responses fail to comply with any one of the four alternative responses required by Rule 196.2. All of Responses listed in this part B (see above) follow the same evasive PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE7 pattern: (1) multifarious, long-winded objections followed by an answer "subject to" the objections, (2) all of the answers that follow the objections consists of a statement that Defendant "has conducted a reasonable search" and Defendant "directs Plaintiff" to certain documents. The above responses are deficient because they: Fail to state that production "will be permitted . as requested" so as to comply with Rule 196.2(b)(1); Fail to state that "the requested items are being served on the requesting party" so as to comply with Rule 196.2(b)(2); Fail to state that "production . . . will take place at a specified time and place" so as to comply with Rule 196.2(b)(3); Fail to state that "no items have been identified — after a diligent search — that are responsive to the request" so as to comply with Rule 196(b)(4). Defendant Bank of America creates a superficial impression of compliance with Rule 196.2(b)(4) by stating that it has conducted a "reasonable" search. But Defendant then fails to state that “no items have been identified — after a diligent search — that are responsive to the request" as required to comply with the Rule. Instead, Defendant "directs Plaintiff" to certain page numbers. Defendant's above responses do not state that a "diligent search" was made, only that a "reasonable" search was made. Defendant "directs Plaintiff" to certain page numbers, but fails to state either that all the responsive documents located by the search have been produced or that there are no items Tesponsive to the request have been identified. Defendant's above responses listed conclude with the statement that "Defendant has not withheld any documents based on its objections." This response does NOT affirm that all documents responsive to request will be produced, have been produced, or will be produced as PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE8 specified time and place; it means only that Defendant has not withheld documents based on its objections. It leaves open that possibility that Defendant simply refused to produce one or more documents to which no objection was asserted. The answer potentially allows Defendant to escape compliance by conducting a search but refusing to state whether the documents it has produced constitute all of the requested documents it found or that no items responsive to the request have been identified. Moreover, the language that Defendant "directs Plaint to" certain page numbers does not comply with Rule 196.2 because there is no statement that the page numbers in question constitute all of the requested documents." Nor does it expressly state that the pages to which Plaintiff is directed are the items requested. Defendant could be directing Plaintiff to totally irrelevant documents. D. Request to Overrule BOA's Invalid Objections to Requests for Production which it fails to answer and Order BOA to Serve a Proper Answer:_Numbers 3, 4, 19, 20, 33/sic/32 and 34/fsic]33 As to the above Requests, Defendant has not only asserted invalid objections but has also failed to serve ANY answer. Requests Numbers 3, 4, 19, 20, 33/sic]32 and 34/sic]/33. The court should therefore overrule such objections and order BOA to answer. E. BOA's Improper objection to protect a privilege and failure to provide a withholding statement. Plaintiff objects t o the following improper objection to protect a privilege that BOA asserts in its response to Request No. 1, 2 and 3: "BANA [Bank of America] objects to this Request to the extent it seeks information that is protected by the attorney client privilege and/or the work product doctrine." PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL DISCOVERY FROM DEFENDANT BANK OF AMERICA NA. PAGE9 Such objection violates TRCP Rule 193.2 Objecting to Written Discovery and TRCP Rule 193.3 Asserting a Privilege. Rule 193.2(f) provides that: "(£) No Objection to Preserve Privilege. A party should not object to a request for written discovery on the grounds that it calls for production of material or information that is privileged but should instead comply with Rule 193.3." (Emphasis added) Rule 193.3 provides that: "A party may preserve a privilege from written discovery in accordance with this subdivision. (a) Withholding privileged material or information. A party who claims that material or information responsive to written discovery is privileged may withhold the privileged material or information from the response. The party must state--in the response (or an amended or supplemental response) or in a separate document--that: (1) information or material responsive to the request or required disclosure has been withheld, (2) the request or required disclosure to which the information or material relates, and (3) the privilege or privileges asserted. Defendant's Responses cited above do not state if any material has been withheld, nor the responses to which relates. Pursuant to Rule 193.3 the objection must be overruled and BOA ordered to provide a withholding statement. BOA's Improper Objections to overbroad, unduly burdensome, etc. PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE 10 Defendant also raises unsupported objections* on which Defendant as the party resisting discovery bears th e burden of proof. See TRCP Rule 193.4(a) “The party making the objection or asserting the privilege must present any evidence necessary to support the privilege." Defendant asserts the same objections en masse to all the Responses, regardless of whether the objections are appropriate to the specific objection to which they are directed. Plaintiff states that Defendant has not and cannot support objections asserted and all objections should be overruled. VI. PLAINTIFF’S RESPONSES TO BOA's OBJECTIONS TO PLAINTIFF’S FIRST SET OF INTERROGATORIES A. All of BOA's objections to Plaintiff's Interrogatories have been waived by failure to respond in the time allowed and by obscuring valid objections (if any) with numerous invalid objections and therefore must be overruled . As discussed under Part III above, TRCP Rules 196.1, 197.1 and 198.2, provide that responses to requests for production, interrogatories and requests for admission are all due within 30 days after service of the discovery. Plaintiff's Interrogatories to BOA were served on October 18, 2021. Responses to Plaintiff's Interrogatories were due on or about November 17, 2021. Despite demands by Plaintiff, as of May, 2023, BOA had not served responses. Therefore, on May 26, 2023, Plaintiff file her Motion to Compel Against BOA. On July 28, 2023, only after filing the Motion, did BOA server responses, but the Responses are deficient. A copy of Plaintiff's 5 E.g., "BANA objects to the extent it is irrelevant, ... BANA objects to the extent it is public information ... equally available to Plaintiff ... BANA objects to the extent it seeks the production of confidential, business proprietary, trade secret or other non-public information of BANA..." PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE 11 First Discovery Requests including the Interrogatories are attached as Exhibit B and BOA's Responses are attached as Exhibit C. discussed above, As of May, 2023, over 24 months after service of the discovery, Defendant Bank of America had totally failed to serve any responses whatsoever.’ TRCP Rule 193.2 (e) provides: "(c) Waiver of Objection. An objection that is not made within the time required, or that is obscured with numerous unfounded objections, is waived unless the Court excuses the waiver for good cause shown." BOA FAILED to serve responses to Plaintiff's Interrogatories within 30 days of the date served (nearly two years late), and therefore all objections BOA may assert have been waived and must be overruled. As discussed below many of BOA's objections were the same mutually exclusive "boilerplate" objections for multiple discovery requests, regardless of the subject of the request. Those objections were “obscured with numerous unfounded objections" and therefore were waived. B. Alternatively, pursuant to Rule 193.2(e), BOA's objections to Interrogatories Number _1, 2, 8, 9 and 10 must be overruled a: they are obscured by numerous invalid and mutually exclusiv objections . Waiver - numerous invalid objections (Rule 193.2(e) TRCP Rule 193.2 (ec) Waiver of Objection., provides that an objection that is obscured with numerous unfounded objections, is waived unless the Court excuses the ° Plaintiff's Requests for Admission which are therefore deemed admitted. PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE 12 waiver for good cause shown. In violation of Rule BOA's objections to the Interrogatories listed above were the same mutually exclusive "boilerplate" objections for multiple discovery requests, regardless of the subject of the request. The objections are contradictory and confusing, ranging from violation of trade secretes, to equally available to both parties, to claiming protection as confidential and non-public information. Those objections are "obscured with numerous unfounded objections" and therefore were waived and must be overruled. Cc. Plaintiff's Specific Objections to Bank of America's Responses to Plaintiff's Interrogatories Numbers 1, 2, 8, 9,10 and 14 Plaintiff objects to BOA'S responses to the following Interrogatories on the grounds stated below: Objection to BOA Responseto Interrogatory No. 1: Plaintiff objects on grounds that (1) Defendant's answer "BANA refers Plaintiff to its document production ... BANA 001- 41" is ambiguous in that the page range given encompasses numerous different documents which require interpretation in order to extract any meaningful answer; moreover, the response does not comply with TRCP Rule 197.2 “Response to Interrogatories” part ( ¢ ) “Option to Produce Records” which specifies that the following conditions must be satisfied before a party may answer an interrogatory by producing records: “Tf the answer to an interrogatory may be derived or ascertained from .. . the responding parties business records and the burden of deriving or ascertaining the answer is substantially the same for the requesting party as for the responding party, the responding party may answer the interrogatory by specifying and, if applicable, producing the records or compilation, abstract or summary of the records.” PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE 13 “The records from which the answer may be derived or ascertained must be specified in sufficient detail to permit the requesting party to locate and identify them as readily as can the responding party.” Defendant’s Response fails to comply with Rule 197.2( c) in the following respects: (1) the answer to the Interrogatory cannot be ascertained from the business records referred to in connection with such Response because the records do not identify the person or persons who made has the original Installment Contract and where it is locate as required to answer the Interrogatory; or alternatively, the answer cannot be ascertained without the aid of a witness familiar with BOA’s business forms and practices because the records in question contain numerous technical terms, abbreviations and incomplete phrases used in the Defendant’s trade but not known in common usage and certainly not known to Plaintiff. Consequently, the answer to Interrogatory cannot be derived solely from the records themselves. (2) the records from which the answer may be derived or ascertained are not “specified in ufficient detail to permit the requesting party to locate and identify them as readily as can the responding party” because the records produced in connection with the such Response include 41 or more pages relate to many different subjects, yet the Response does not provide a specific page reference or other means to identify which particular page relevant to the Interrogatory. (3) the records from which the answer may be derived or ascertained are not “specified in sufficient detail to permit the requestin to locate and identi: them as readily as can the responding party” because the records produced in connection with the such Response cannot be located or identified by Plaintiff as readily as they can be located and identified by PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE 14 Defendant as the requesting party. Plaintiff's objection to BOA Response to Interrogatory No. 2. Same objection as stated to No. 1. Plaintiff's objection to BOA Response to Interrogatory No. 8. Same objection as stated to No . 1 plus no answer is provided. Plaintiffs objection to BOA Response to Interrogatory No. 9 and 10. Same objection as state to No. 1 plus no answer is provided. Plaintiff's objection to BOA response to Interrogatory No. 14: Interrogatory No. 14 states: Pursuant to TRCP Rule 192.3(d), state the name, address, and telephone number of any witness Defendant McClain’s RV expects to call to testify at trial.” BOA answers that "such information does not exist in BANA's custody." Such response is vague and incomplete. See Tex. R. Civ. P. Rule 192.3(d) which requires a party to disclose its trial witnesses. Trial Witnesses” which provides in pertinent part:“A party may obtain discovery of the name, address, and telephone number of any person who is expected to be called to testify at trial. This paragraph does not apply to rebuttal or impeaching witnesses the necessity of whose testimony cannot reasonably be anticipated before trial.” The above information may be obtained through an Interrogatory. Jamail vy Anchor Mortgage Svcs, 809 S.W. 2d 221, 223 (Tex. 1991). Defendant’s Answer fails to provide the “name, address and telephone number of any person “who is expected to be called at trial” as required by Rule 192.3(d). PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE 15 Respectfully submitted, /s/ Robert D. Hemphill Robert D. Hemphill Texas Bar No. 09413800 rhemphill@pamlaw.com PALMER LEHMAN SANDBERG PLLC Campbell Centre I, Suite 1111 8350 North Central Expressway Dallas, Texas 75206 Tel. (214)242-6498 Fax. (214)265-1950 ATTORNEY FOR PLAINTIFF VICKY L. MOULTON CERTIFICATE OF SERVICE I certify that the foregoing Amended Motion has been served upon all counsel of record through the e-file system in accordance with the Texas Rules of Civil Procedure on this the 3" day of November, 2023. /s/ Robert D. Hemphill Robert D. Hemphill PLAINTIFF VICKY MOULTON’S AMENDED MOTION TO COMPEL DISCOVERY FROM DEFENDANT BANK OF AMERICA N.A. PAGE 16 EXHIBIT A CAUSE NO. DC-20-08922 VICKY L. MOULTON IN THE DISTRICT COURT vs. McCLAIN'S R.V. SUPERSTORE FORT WORTH, INC., /d/b/a 44TH JUDICIAL DISTRICT McCLAIN'S RV FORT WORTH, CORNERSTONE UNITED ADMINISTRATIVE SERVICES, INC. d/b/a CORNERSTONE UNITED, § FOREST RIVER MANUFACTURING, § LLC and BANK OF AMERICA, N.A. § DALLAS COUNTY, TEXAS DEFENDANTS’ RESPONSE TO PLAINTIFF’S REQUEST FOR DISCLOSURE To: Plaintiff, Vicky L. Moulton, by and through her attorneys of record, Robert D. Hemphill 5 Palmer Lehman Sandberg, 8350 N Central Expressway, Suite 1111, Dallas, Texas 75206. COME NOW, Defendants, MCCLAIN’S R.V. SUPERSTORE FORT WORTH, INC., D/B/A MCCLAIN’S RV FORT WORTH, CORNERSTONE UNITED ADMINISTRATIVE SERVICES, INC. D/B/A CORNERSTONE UNITED AND BANK OF AMERICA, N.A., (“McClains” or “Defendants”) and serve their Response to Plaintiff's Request for Disclosure pursuant to Rule 194 of the Texas Rules of Civil Procedure. Respectfully submitted, EKVALL & BYRNE, L.L.P. Koha Sag, BY. Charlene R. Echols State Bar No. 17339100 4450 Sigma Road,Suite 100 Dallas, TX 75244 Telephone: (972) 239-0839 Facsimile: (972) 960-9517 Email: cechols@ekvallbyrne.com ATTORNEY FOR DEFENDANTS Defendants’ Response to Plaintiff's Request for Disclosure Page | CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the foregoing instrument was served upon all counsel of record herein on this 21 st day of September, 2020. Via E-service Robert D. Hemphill Palmer Lehman Sandberg 8350 N Central Expressway Suite 1111 Dallas, Texas 75206 Via E-service Craig D. Dillard Robert Arthur FOLEY & LARDNER LLP 1000 Louisiana Street, Suite 2000 Houston, Texas 77002-2099 Role %x, Charlene R. Echols Defendants’ Response to Plaintiff's Request for Disclosure Page 2 RESPONSES TO REQUEST FOR DISCLOSURE a) Correct names of the parties to the lawsuit. RESPONSE: Defendants believe the parties have been properly named. b) Name, address and telephone number of any potential parties. RESPONSE: At this time, Defendant is not aware of any potential parties. c) Legal theories and, in general the factual bases of Defendant’s claims or defenses. RESPONSE: Insofar as defenses are concerned, Defendants hereby enter a general denial, as is permitted by Rule 92 of the Texas Rules of Civil Procedure, and requests that Plaintiff be required to prove, by a preponderance of the evidence, the charges and allegations which Plaintiff has made against Defendants, as is required by the law and the Constitution of the State of Texas. By way of affirmative defense, and in the alternative if such be necessary, Plaintiff’s damages, if any, were caused by an act of God and/or normal wear and tear and were not caused by any act or omission on the part of Defendants. By way of affirmative defense, and in the alternative if such be necessary, Plaintiffs claims under the Texas Deceptive Trade Practices Act are barred as their alleged claims are strictly contractual in nature. By way of affirmative defense, and in the alternative if such be necessary, Plaintiff's damages, if any, were caused by a new and independent cause, superseding cause, and/or intervening cause. By way of affirmative defense, and in the alternative if such be necessary, if Plaintiff was injured, Plaintiff failed to take reasonable steps to mitigate their alleged damages. By way of affirmative defense, and in the alternative if such be necessary, in the unlikely event that Defendant is held liable in the above-referenced matter, the damages recoverable should be limited to the amounts and conditions set forth in Chapter 41 of the Texas Civil Practice and Remedies Code. Defendants’ Response to Plaintiff's Request for Disclosure Page 3 By way of affirmative defense, and in the alternative if such be necessary, in the unlikely event that Defendants are held liable in the above-referenced matter, the damages recoverable under the Texas Business and Commerce Code§ 17.50 et. seq. are limited by the statutory caps set forth therein. Those caps include, but are not limited to, the limitation of recovery of mental anguish damages to three times the amount of economic damages if the alleged acts are found to be committed knowingly. Tex. Bus. & Com. Code Ann.§ 17.50(b)(1). By way of affirmative defense, and in the alternative if such be necessary, Plaintiff’s alleged damages, if any, were solely and/or proximately caused by Plaintiff’s actions or inactions. Plaintiff is barred from seeking recovery if the trier-of-fact determines that Plaintiff's actions or inactions caused more than fifty percent of her alleged damages or, in the alternative, Defendants are entitled to have Plaintiff's alleged damages, if any, reduced by the percentage of harm caused by her own actions or inactions. Defendant would further show that at the time Plaintiff purchased the subject RV from Defendant McClain's, Plaintiff signed an Arbitration Agreement. By signing the Arbitration Agreement, Plaintiff accepted and bound herself to the following: "that once one of the parties has elected to arbitrate, binding arbitration is the exclusive method for resolving any and all Claims..." arising from or as a result of the purchase of the RV from McClain's. Therefore, pursuant to the Arbitration Agreement, Plaintiff must pursue her claim through arbitration. Pleading further in the affirmative, Defendant would further assert that Plaintiff's complaints are time barred by the statute of limitations. Defendants reserves the right to amend their pleadings to assert affirmative defenses, contributory negligence, and to bring a counter-claim and/or third-party claim, should same be warranted. d) State the amount of any method of calculating economic damages. RESPONSE: This request is not applicable to Defendant, since Defendant is not currently making any claim for affirmative relief in connection with this litigation. Defendants, however, dispute the damages for which Plaintiff seeks recovery as not being proximately caused by the subject incident and/or being excessive under the circumstances. e) The name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person’s connection with the case. Defendants’ Response to Plaintiff's Request for Disclosure Page 4 RESPONSE: Persons presently known to Defendants as having knowledge of relevant facts are identified on the Addendum attached hereto as Exhibit “A.” Additionally, a brief statement of the each identified person’s connection with the case is identified on the Addendum. For any testifying experts: (aly the expert’s name, address, and telephone number; 2) the subject matter on which the expert will testify; (3) the general substance of the expert’s mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the Defendant/Counter-Plaintiff, documents reflecting such information; (4) if the expert is retained by, employed by or otherwise subject to the control of the responding party: (A) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony; and (B) the expert’s current resume or bibliography. RESPONSE: Defendants have not retained any expert witnesses at this time. 8) Any indemnity and insuring agreements described in T.R.C.P. Rule 192.3(f). RESPONSE: None. h) Provide any discoverable settlement agreements; RESPONSE: No responsive documents currently in Defendant’s possession, custody or control. Defendants’ Response to Plaintiff's Request for Disclosure Page 5 i) Any witness statements described in T.R.C.P. Rule 192.3(h). RESPONSE: None currently in Defendant’s possession. jd In a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills (Rule 194.2()). RESPONSE: This request is not applicable to Defendant since Defendant is not currently presenting any claim for affirmative relief in this litigation. k) All medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party (Rule 194.2(k). RESPONSE: Not applicable to this subject lawsuit. ) The name, address and telephone number of any person who may be designated as a responsible third party (Rule 194.2(1)). RESPONSE: At this time, Defendant is not aware of any person who may be designated as a responsible third party. a Defendants’ Response to Plaintiff's Request for Disclosure Page 6 ADDENDUM Vickie L. Moulton c/o Robert D. Hemphill Palmer Lehman & Sandberg, PLLC 8350 N. Central Expy., Suite 1111 Dallas, Texas 75206 (214) 242-6498 Plaintiff McClain’s RV Superstore Fort Worth, Inc. d/b/a McClain’s RV Fort Worth Cornerstone United Administrative Services, Inc. d/b/a Cornerstone United Bank of America, N.A. c/o Charlene R. Echols Ekvall & Byrne, L.L.P. 4450 Sigma Road, Suite 100 Dallas, Texas 75244 (972) 239-0839 Defendant Nate McClain McClain’s RV Superstores c/o Charlene R. Echols Ekvall & Byrne, L.L.P. 4450 Sigma Road, Suite 100 Dallas, Texas 75244 (972) 239-0839 Representative of Defendant McClain’s RV Superstore Fort Worth, Inc. d/b/a McClain’s RV Fort Worth Forest River, Inc. c/o Craig D. Dillard Robert Arthur FOLEY & LARDNER LLP 1000 Louisiana Street, Suite 2000 Houston, Texas 77002-2099 Telephone: (713) 276-5500 Defendant All witnesses designated by Plaintiff or any other party. MOULTON V. MCCLAIN’S RV, ET AL - ADDENDUM Page I EXHIBIT B NO. DC-20-08922 VICKY L. MOULTON, IN THE DISTRICT COURT Plaintiff v. 1 1 McCLAIN’S R.V. SUPERSTORE y FORT WORTH, INC., /d/b/a 1 McCLAIN’S RV FORT WORTH, MC 44™ JUDICIAL DISTRICT CORNERSTONE UNITED ADMINISTRATIVE SERVICES, INC. d/b/a CORNERSTONE UNITED, FOREST RIVER MANUFACTURING, LLC y and BANK OF AMERICA, N.A. MX DALLAS COUNTY, TEXAS PLAINTIFF VICKY L. MOULTON’S FIRST DISCOVERY REQUESTS TO DEFENDANT BANK OF AMERICA N.A. TO: Defendant Bank of America, N.A. , through its Counsel of Record, Charlene R. Echols Eckville & Byme, L.L.P., 4450 Sigma Road, Suite 199, Dallas, Texas 75244 COMES NOW VICKY L. MOULTON, Plaintiff in the above cause and pursuant to Tex. R. Civ Proc. Rule 192, 193, 196, 197 and 198 serves the following Requests for Admission, Requests for Production and Interrogatories. Requests for Admission. Pursuant to Rule 198 of the Texas Rules of Civil Procedure, you are requested to admit or deny the truth of each of the matters set out in the “Requests for Admission” set out below and to admit the genuineness of each of the relevant documents described in and exhibited with the attached requested admissions. Each of the matters of which an admission is requested will be deemed admitted unless, within thirty days after service, you deliver or cause to be delivered to me a statement denying specifically each matter of which an admission is requested, objecting to the admission and stating the reason(s) for your objection, or PLAINTIFF VICKY L. MOULTON’S FIRST DISCOVERY REQUESTS TO DEFENDANT BANK OF AMERICA, N.A. PAGE1 stating in detail the reason(s) you cannot truthfully admit or deny the matter. Please note that if, after you submit your responses to these requests for admissions, you leam that any such response was either incomplete when made, or, although complete and correct when made, it is no longer complete and correct, you must amend or supplement your response reasonably promptly after you discover the necessity for such a response. Any amended or supplemental resp