Preview
FILED
10/11/2023 4:35 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Loaidi Grove DEPUTY
CAUSE NO. DC-21-09308
MELISSA TARVER, Individually IN THE DISTRICT COURT
and as Representative of the Estate of
DERIC TARVER, and as next friend of
B.T. and K.T., MINORS, RANDY
TARVER and DEBBIE TARVER
Plaintiffs 192NP JUDICIAL DISTRICT
VS.
ATMOS ENERGY CORPORATION
and BOBCAT CONTRACTING, LLC
Defendants DALLAS COUNTY, TEXAS
Michael Glover
Plaintiff
VS.
ATMOS ENERGY CORPORATION
and BOBCAT CONTRACTING, LLC
Defendants
TAMMY BOEHLER, Individually and as
Representative of the Estate of Ethan
Knight, and Clay Boehler
Plaintiffs
ATMOS ENERGY CORPORATION and
FESCO, LTD.
Defendants
DEFENDANT BOBCAT CONTRACTING, LLC’S JOINDER IN DEFENDANT ATMOS
ENERGY CORPORATION’S MOTION TO COMPEL TESTIMONY REGARDING
NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER AND ATMOS
ENERGY CORPORATION’S MOTION TO STRIKE IMPROPER DESIGNATION AND
EXCLUDE TESTIMONY OF EXPERT WITNESS GEORGE GLASS, M.D.
DEFENDANT BOBCAT CONTRACTING, LLC’S JOINDER IN DEFENDANT ATMOS ENERGY
CORPORATION’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES
AND CLARIFY COURT ORDER AND ATMOS ENERGY CORPORATION’S MOTION TO STRIKE
IMPROPER DESIGNATION AND EXCLUDE TESTIMONY OF EXPERT WITNESS GEORGE GLASS,
M.D. - Page 1
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendant Bobcat Contracting, LLC, and files this Joinder in (1)
Defendant Atmos Energy Corporation’s Motion to Compel Testimony Regarding Non-Economic
Damages and Clarify Court Order (filed October 4, 2023, and attached hereto as Exhibit A), and
(2) Atmos Energy Corporation’s Motion to Strike Improper Designation and Exclude Testimony
of Expert Witness George Glass, M.D. (filed September 18, 2023, and attached hereto as Exhibit
B). Exhibits A and B are incorporated by reference as if set forth fully herein.
Respectfully submitted,
WALTERS BALIDO & CRAIN, L.L.P.
BY:_/s/ Sarah Holley Long
SARAH HOLLEY LONG — 24036798
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
Telephone: 214-749-4805
Facsimile: 214-760-1670
LongEDocsNotifications@wbclawfirm.com
ATTORNEY FOR DEFENDANT
BOBCAT CONTRACTING, LLC
CERTIFICATE OF SERVICE
This is to certify that on this the 11th day of October, 2023, a true and correct copy of the
above document has been forwarded to all counsel of record.
/s/ Sarah Holley Long
SARAH HOLLEY LONG
DEFENDANT BOBCAT CONTRACTING, LLC’S JOINDER IN DEFEND. ATMOS ENERGY
CORPORATION’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES
AND CLARIFY COURT ORDER AND ATMOS ENERGY CORPORATION’S MOTION TO STRIKE
IMPROPER DESIGNATION AND EXCLUDE TESTIMONY OF EXPERT WITNESS GEORGE GLASS,
M.D. - Page 2
EXHIBIT A
DEFENDANT BOBCAT CONTRACTING, LLC’S JOINDER IN DEFENDANT ATMOS ENERGY
CORPORATION’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES
AND CLARIFY COURT ORDER AND ATMOS ENERGY CORPORATION’S MOTION TO STRIKE
IMPROPER DESIGNATION AND EXCLUDE TESTIMONY OF EXPERT WITNESS GEORGE GLASS,
M.D. - Page 3
FILED
10/4/2023 1:20 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Loaidi Grove DEPUTY
CAUSE NO. DC-21-09308
MELISSA TARVER, Individually and as
Representative of the Estate of DERIC
TARVER, and as next friend of B.T. and
K.T., Minors, RANDY TARVER and
DEBBIE TARVER
IN THE DISTRICT COURT OF
Vv. DALLAS COUNTY, TEXAS
192ND JUDICIAL DISTRICT
ATMOS ENERGY CORPORATION
and BOBCAT CONTRACTING, LLC
TAMMY BOEHLER, Individually and as
Representative of the Estate of ETHAN
KNIGHT, and CLAY BOEHLER
Vv.
ATMOS ENERGY CORPORATION and
FESCO, LTD.
MICHAEL GLOVER
v.
ATMOS ENERGY CORPORATION and
BOBCAT CONTRACTING, LLC
ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY
REGARDING NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER
The Court ordered the Tarver Plaintiffs to amend their petition, in advance of Melissa
Tarver’s and Debbie Tarver’s depositions, to state the maximum amount of damages that the
Tarver Plaintiffs are seeking in this case. The Second Amended Petition states that the Tarver
Plaintiffs are seeking $747.5 million dollars in compensatory damages. Because the Tarver
Plaintiffs (through an expert) have asserted economic damages in the range of $5,845,393—
$6,888,777, more than seven hundred and forty million of the total alleged damages constitute
alleged non-economic damages.
ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING
NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 1
At Melissa Tarver’s and Debbie Tarver’s depositions, counsel to the Tarver Plaintiffs!
repeatedly instructed his clients not to answer questions concerning their $740+ million claim for
non-economic damages. Currently, Defendants have no information about the $747.5 million
amount, other than the Tarver Plaintiffs’ disclosure through an expert report that they are claiming
$5,845,393-$6,888,777 in economic damages. This leaves $741,654,607-$740,611,233 in non-
economic damages. But Defendants have been unable to obtain any information about whether
the Tarver Plaintiffs approve that amount, how the Tarver Plaintiffs determined that amount, how
much of that amount is attributable to each of the Tarver Plaintiffs’ claims, or how much of that
amount is for what category of non-economic damages. Instead, counsel to the Tarver Plaintiffs
claim this information is privileged and instructed Melissa Tarver and Debbie Tarver not to answer
such questions.
There is no authority supporting such a claim of privilege. To the contrary, the Texas Rules
of Civil Procedure make plain that a defendant “may obtain discovery of any other party’s legal
contentions and the factual bases for those contentions.” Tex. R. Civ. P. 192.3(j). The Rules also
expressly state that “information discoverable under Rule 192.3” including information
“concerning . . . contentions” ‘not work product protected from discovery.”
Atmos respectfully requests this Court to compel testimony: through written responses
pursuant to Texas Rule of Civil Procedure 200, if the Court finds that format the most
appropriate—concerning the Tarver Plaintiffs’ non-economic damages.
1 The Tarver Plaintiffs include Melissa Tarver, Individually and as Representative of the
Estate of Deric Tarver, and as next friend of B.T. and K.T., Minors, Randy Tarver, and Debbie
Tarver.
ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING
NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 2
LEGAL STANDARD
“An attorney may instruct a witness not to answer a question during an oral deposition only
if necessary to preserve a privilege, comply with a court order or these rules, protect a witness
from an abusive question or one for which any answer would be misleading, or secure a ruling
pursuant to paragraph (g).” Texas Rule of Civil Procedure 199.5(f). “An attorney must not...
instruct the witness not to answer a question . . . unless there is a good faith factual and legal basis
for doing so at the time.” Rule 199.5(h).
“Any party may, at any reasonable time, request a hearing on . . . an instruction not to
answer .... The party seeking to avoid discovery must present any evidence necessary to support
the objection or privilege either by testimony at the hearing or by affidavits served on opposing
parties at least seven days before the hearing.” Rule 199.6; see also In re E.I. DuPont de Nemours
& Co., 136 S.W.3d 218, 227 (Tex. 2004) (holding that the party asserting a privilege has the burden
of proof and must make a prima facie showing, which requires the “minimum quantum of evidence
necessary to support a rational inference that the allegation of fact is true”).
ARGUMENT
The Court should compel answers to questions concerning the Tarver Plaintiffs’ claim for
damages. In response to this Court’s Order? on Defendants’ Special Exceptions, the Tarver
Plaintiffs filed their Second Amended Petition stating: “for compensatory damages and non-
2 The order requires that “1. Melissa Tarver, Melissa Tarver in her capacity as next friend of
B.T., Melissa Tarver in her capacity as next friend of K.T., Debbie Tarver, and Randy Tarver state:
(a) what categories of damages he or she seeks; (b) the maximum amount of damages that the
Plaintiffs seeks collectively.” September 22, 2023 Order Sustaining Atmos Energy’s and Bobcat
Contracting, LLC’s Special Exceptions at 1. Because the Tarver Plaintiffs included a single,
collective number for all of their alleged damages, Atmos also requests clarification whether the
Court’s intent was to require each of the various Tarver Plaintiffs to state the maximum amount of
damages he or she seeks individually, including in Melissa Tarver’s representative capacities.
ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING
NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 3
economic losses of the Tarver Plaintiffs, exclusive of any award of exemplary damages, the Tarver
Plaintiffs plead a maximum amount of seven-hundred forty seven million, five-hundred thousand
dollars ($747,500,000), which reflects the commensurate loss Plaintiffs have suffered mentally,
emotionally, physically, physically, and spiritually for Deric Tarver’s death.” Second Am. Pet. at
10. On its face, this number—$747.5 million rather than, for example, $750 million—suggests
that it represents the sum total of various amounts the Tarver Plaintiffs are claiming as damages.
But the Tarvers have not provided those calculations. Instead, as a result of an expert report on
non-economic damages, the Defendants are aware only that $5,845,393-$6,888,777 of the total is
comprised of alleged economic damages, leaving $741,654,607-$740,611,233 in alleged non-
economic damages. The Tarvers’ counsel refused to allow his clients to respond to questions
concerning these amounts based on the attorney-client privilege.
The Tarver Plaintiffs’ contentions concerning, and evidence regarding, their $747.5 million
damage claim are not privileged. And yet counsel to the Tarver Plaintiffs repeatedly instructed
Melissa Tarver and Debbie Tarver not to answer basic questions concerning their claim, despite
defense counsel making clear he was not seeking to discover privileged discussions. The following
excerpt is representative:
Q And there's a new version of the lawsuit that was filed yesterday. Have you had a
chance to read that?
A No.
Q Are you aware of what has been asked in that pleading?
A No.
Q So you're not aware of how much money is being requested in that pleading?
A I've heard, but I don't know if -- the exact. Just -- I just know that I was told that
there was -- last -- last night.
Q And I don't want to know the substance of your conversation with your
lawyer. That's why I asked you about the piece of paper and whether or not you have
seen a piece of paper and approved an amount that was alleged?
MR. AGOSTO: Hold on. I'm going to object as attorney-client privilege
and instruct you not answer.
ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING
NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 4
THE WITNESS: I don't —
MR. AGOSTO: Just don’t answer.
MR. PARKERSON: I don't want to know about your communications with —
MR. AGOSTO: Yeah.
MR. PARKERSON: -- Mr. Agosto.
MR. AGOSTO: Listen to my — careful question — instruction and objection.
THE WTINESS: Yes.
MR. AGOSTO: I’m objecting when he gets into conversations with us,
even subtly, which he’s trying to do.
MR. PARKERSON: No, I’m not.
MR. AGOSTO: Oh, yes, you are. It’s on the record. Then I’m instructing
you not to answer ... It’s attorney-client privilege. I instruct you not to answer.
THE WITNESS: Okay.
Q (By Mr. Parkerson): I would like to know whether you, personally, approve of a
claim of $747 million?
MR. AGOSTO: Objection. T instruct you not to answer. It’s attorney-
client privilege.
Q. (By Mr. Parkerson): I don't want to know your communications with Mr.
Agosto. That's not what I'm asking for.
MR. AGOSTO: See, it's the same thing. Subtle, trying to get involved
into our discussion whether it's approved or not. That's a discussion we had.
THE WITNESS: Right.
MR. AGOSTO: So he's not going to ask you that question. I instruct
you not to answer. It's attorney-client privilege.
THE WITNESS: Right. Yes.
App. at 35 (Ex. 2, Debbie Tarver Tr. at 42:8-44:13); see also App. at 91 (Ex. 3, Melissa Tarver
Tr. at 144:16-21).
Whether the Tarvers approve, personally and individually, of the $747.5 million damage
claim is not privileged, as the Tarvers’ counsel asserted. “A party may obtain discovery of any
other party’s legal contentions and the factual bases for those contentions.” Tex. R. Civ. P.
192.3(j). Information about the Tarvers’ contentions concerning, and evidence supporting, this
$747.5 million damage claim is neither protected by the attorney-client privilege nor shielded by
the work-product doctrine. The attorney-client privilege only protects clients “from disclosing
confidential communications made to facilitate the rendition of professional legal services to the
ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING
NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 5
client .. . between the client . . . and the client’s lawyer.” Tex. R. Evid. 503(b)(1). It does not
prevent testimony regarding a party’s contentions or “extend to the disclosure of underlying facts,
but merely to the disclosure of attorney-client communications.” Jn re Tex. Farmers Ins. Exch.,
990 S.W.2d 337, 341 (Tex. App.—Texarkana 1999, no pet.) (citing Upjohn Co. v. United States,
449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)). As for any work-product protection, the
Rules expressly state that a party 36Ss &, contentions” are “not work product protected from discovery.”
Tex. R. Civ. P. 192.5(c)(1).
At Melissa Tarver’s and Debbie Tarver’s depositions, counsel also refused to allow the
witnesses to answer questions concerning how much of the $747.5 million damage claim was
allocated to each of the individual plaintiffs. App. at 77 (Ex. 3, Melissa Tarver Tr. at 85:23—-86:13;
86:24-87:6); App. at 35-36 (Ex. 2, Debbie Tarver Tr. at 44:25—45:11; 45:18-25). Counsel also
refused to allow the witnesses to answer questions about how much of the $747.5 million damage
claim was for various categories of non-economic damages, such as mental anguish or loss of
companionship, based on the attorney-client privilege. App. at 77 (Ex. 3, Melissa Tarver Tr. at
86:19—23; 87:7—23; 88:5-12); App. at 36 (Ex. 2, Debbie Tarver Tr. at 46:1—8). Indeed, counsel
refused to allow Melissa Tarver to answer whether she was able to identify “what amount of money
would fairly and reasonably compensate [her] for damages for past [and future] mental anguish”,
App. at 77 (Ex. 3, Melissa Tarver Tr. at 86:14-18; 87:24—-88:4), and similarly instructed Debbie
Tarver not to answer “how much [she] would allocate for [her] past and future mental anguish,”
App. at 36 (Ex. 2, Debbie Tarver Tr. at 45:20-25). Counsel also refused to allow Melissa Tarver
to answer whether she was “aware of any calculation that rationally connects the amount of [her]
claim to any component of future mental anguish.” App. at 77 (Ex. 3, Melissa Tarver Tr. at 88:5—
12).
ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING
NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 6
Plaintiffs’ counsel made clear that he was “going to instruct [the witness] not to answer []
[a]nything about the petition, anything legal” because, he claimed, “it’s attorney-client privileged.”
App. at 82 (Ex. 3, Melissa Tarver Tr. at 108:13—15); see also App. at 36 (Ex. 2, Debbie Tarver Tr.
at 45:8-11 (“Objection; attorney-client privilege. I instruct you not to answer. Any of these
questions about the lawsuit, I’m going to be telling you that.”)). Throughout the deposition, the
objections were often lengthy and constituted improper coaching. See, e.g., App. at 36 (Ex. 2,
Debbie Tarver Tr. at 46:1—2, 9-10, 19-25 (After Atmos’s counsel made clear he was “not asking
for your communications [with counsel],” the Tarvers’ counsel continued to object: “Stop, then,
invading attorney-client privilege. As you know, you’re not entitled to it. So, why are you doing
it? Ihave no idea. I’m going to continue to instruct you not to answer when he tries to invade the
protection that we have of attorney-client privilege. He can’t get into it. He won’t get into it. And
I won’t let him.”)).
Accordingly, counsel for Atmos tried to ask questions concerning discoverable information
in a way that would avoid further objection. For example, Melissa Tarver testified that her
“financial needs in the future” is something that causes her “worry,” App. at 84 (Ex. 3, Melissa
Tarver Tr. at 114:24-115:1), but Plaintiffs’ counsel instructed Melissa Tarver not to answer
follow-up questions:
Q (By Mr. Parkerson): So you haven’t consulted any financial advisor about what
you need for your future to address the tuition for Bailey?
MR. AGOSTO: I’m going to instruct you not to answer. It’s attorney-client
privilege. The conversations we have, with your lawyers, are attorney-client privilege and
Linstruct you not to answer.
Q (By Mr. Parkerson): There’s also an allegation of loss of inheritance. Do you
know what that means?
MR. AGOSTO: Objection, form.
A Yes.
Q (By Mr. Parkerson): And have you quantified that or calculated what that is?
ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING
NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 7
MR. AGOSTO: Objection, form. Attorney-client privilege. I instruct you not to
answer.
Q (By Mr. Parkerson): So let me ask you this: Have you thought about what amount
it would take to make you financially comfortable?
MR. AGOSTO: Objection; attorney-client privilege. Do not answer that question.
Again, because it’s attorney-client privilege and that’s it.
App. at 85 (id. at 117:2—9; 119:1—9, 119:22-120:2). Similarly, when counsel for Atmos asked
Debbie Tarver “[s]o have you thought about what you want from this lawsuit?”, App. at 39 (Ex.
2, Debbie Tarver Tr. at 59:10—11), she and her counsel refused to respond:
MR. AGOSTO: Objection, form. And I’m going to—again, if they’re asking about
the lawsuit and conversations we had, I’m going to instruct you not to answer. It invades
the attorney-client privilege.
MR. PARKERSON: And I’m going to say that I don’t want to know your
conversations. I want to know what you think and want. What you want from this lawsuit.
A Then I have no answer.
MR. AGOSTO: Because it is—because it invades the attorney-client privilege?
THE WITNESS: Correct.
Id. (Ex. 2, Debbie Tarver Tr. at 59:12—23). All of the questions to which the Tarvers’
counsel objected on the basis of privilege sought information about the Tarvers’ contentions and
the factual basis for them. Under the Texas Rules of Civil Procedure, that information is
discoverable, and not privileged. Tex. R. Civ. P. 192.3(j).
CONCLUSION
Atmos requests that the Court order Melissa Tarver and Debbie Tarver to respond. in
writing, pursuant to Texas Rule of Civil Procedure 200, if the Court deems appropriate—to the
following questions:
1 Do you approve of the $747,500,000 claim for damages?
2 How much of the $747,500,000 claim is for you?
3 [For Melissa Tarver only:] How much of the $747,500,000 claim is for B.T. and
K.T.?
ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING
NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 8
[For Melissa Tarver only:] How much of the $747,500,000 claim is for the Estate
of Deric Tarver?
How much of the $747,500,000 claim is for damages for your mental anguish in
the past [and for Melissa Tarver only:] and for damages for the mental anguish of
B.T. and K.T. in the past]?
How much of the $747,500,000 claim is for damages for your mental anguish in
the future [and for Melissa Tarver only:] and for damages for the mental anguish of
B.T. and K.T. in the future?
How much do you think would fairly and reasonably compensate you for your
mental anguish in the past and in the future [and for Melissa Tarver only:] and for
the mental anguish of B.T. and K.T. in the past and in the future?
How much of the $747,500,000 claim is for damages for your loss of
companionship and society [and for Melissa Tarver only:] and for damages for the
loss of companionship and society of B.T. and K.T.?
How much do you think would fairly and reasonably compensate you for your loss
of companionship and society [and for Melissa Tarver only:] and for the loss of
companionship and society of B.T. and K.T.?
10 [For Melissa Tarver only:] How much of the $747,500,000 claim is for damages
for your loss of consortium and for damages for the loss of consortium of B.T. and
K.T. in the future?
11 [For Melissa Tarver only:] How much do you think would fairly and reasonably
ompensate you for your loss of consortium and for the loss of consortium of B.T.
and K.T. in the future?
12. [For Melissa Tarver only:] How much of the $747,500,000 claim is for damages
for your loss of inheritance and for damages for damages for the loss of inheritance
of B.T. and K.T. in the future?
13 [For Melissa Tarver only:] How much of the $747,500,000 claim is for damages
for your loss of inheritance and for damages for damages for the loss of inheritance
of B.T. and K.T. in the future?
14 Are you aware of any calculation that rationally connects the $747,500,000 claim
to any category of damages you are seeking, and if so, describe the calculation?
15 [For Melissa Tarver only:] How much money would make you feel financially
comfortable, meaning able to address the financial needs of you, and B.T. and K.T.?
ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING
NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE9
Atmos also respectfully requests clarification concerning whether the Court’s September
22, 2023 Order on Atmos’s Special Exceptions was intended to require each of the various Tarver
Plaintiffs to state the maximum amount of damages he or she seeks individually, including in
Melissa Tarver’s representative capacities.
Atmos seeks any further relief to which it is justly entitled.
ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING
NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 10
DATED: October 4, 2023
Respectfully submitted,
/s/ Jessica B. Pulliam
Jessica B. Pulliam
State Bar No. 24037309
Susan Cannon Kennedy
State Bar No. 24051663
BAKER BOTTS L.L.P.
2001 Ross Avenue, Suite 1100
Dallas, Texas 75201
Telephone: (214) 953-6500
Facsimile: (214) 953-6503
jessica.pulliam@bakerbotts.com
susan.kennedy@bakerbotts.com
G. Bruce Parkerson
State Bar No. 00793106
PLAUCHE MASELLI PARKERSON LLP
701 Poydras St., Suite 3800
New Orleans, Louisiana 70139
Telephone: (504) 582-1142
Facsimile: (504) 582-1172
bparkerson@pmpllp.com
ATTORNEYS FOR DEFENDANT
ATMOS ENERGY CORPORATION
CERTIFICATE OF SERVICE
I hereby certify that on October 4, 2023, a copy of the foregoing was served the Court’s
electronic filing system on all counsel of record.
/s/ Jessica B. Pulliam
Jessica B. Pulliam
ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING
NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 11
CERTIFICATE OF CONFERENCE
Throughout the depositions on September 27, 2023, counsel for movant and counsel for
respondent have personally conducted a conference at which there was a substantive discussion of
every item presented to the Court in this motion and despite best efforts the counsel have not been
able to resolve those matters presented.
Certified to the 4" day of October 2023.
/s/ Jessica B. Pulliam
Jessica B. Pulliam
ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING
NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 12
EXHIBIT 1
Atmos Energy's Motion to Compel Testimony Regarding Non-Economic Damages and Clarify Court Order - Page 13
@ LexisNexis
User Name: Leslie Roussev
Date and Time: Wednesday, October 4, 2023 9:44:00AM CDT
Job Number: 207297052
Document (1)
1.In re DuPont de Nemours & Co., 136 S.W.3d 218
Client/Matter: 073085.0152
Search Terms: In re DuPont de Nemours & Co., 136 S.W.3d 218
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Leslie Roussev
Atmos Energy's Motion to Compel Testimony Regarding Non-Economic Damages and Clarify Court Order - Page 14
A Caution
As of: October 4, 2023 2:44 PM Z
In re DuPont de Nemours & Co.
Supreme Court of Texas
May 14, 2004, Opinion Delivered
NO. 03-0464
Reporter
136 S.W.3d 218 *; 2004 Tex. LEXIS 445 **; 47 Tex. Sup. J. 583
company's privilege claims. The company tendered the
IN RE E.|. DUPONT DE NEMOURS AND COMPANY
documents listed on the privilege log to the court for in
Prior History: /n re E./. Dupont De Nemours & Co., 133 camera inspection. On appeal, the company contended
the trial court abused its discretion by holding a hearing
S.W.3d 677, 2003 Tex. App. LEXIS 4473 (Tex. App.
on the plaintiffs’ global challenge to all of the documents
Beaumont, May 22, 2003)
identified in its privilege log and argued the trial court
Disposition: Pursuant to Texas Rule of Appellate abused its discretion by finding it had not made a prime
Procedure 52.8, without hearing oral argument, the facie showing of privilege for the documents and
Court conditionally granted the petition for writ of tefusing to conduct an in camera inspection before
mandamus. The court of appeals’ opinion was ordered rejecting its privilege claims. The trial court did not
published. abuse its discretion in holding a hearing on plaintiffs’
global challenge to the company's privilege claims. This
court conditionally granted the writ insofar as it
Core Terms
concluded the company made a prima facie showing of
privilege for many of the documents the trial court
documents, trial court, privilege log, attorney-client, in
ordered produced without conducting an in camera
camera, prima facie case, privilege claim, work product
review.
privilege, privileged, asserting, discovery, prima facie,
plaintiffs’, inspection, log, claim of privilege, personal
Outcome
knowledge, court of appeals, human resources,
The company's petition for mandamus relief from the
mandamus relief, database, global
trial court ruling was conditionally granted insofar as the
ruling denied the company's privilege claim without
Case Summary conducting an in camera review. Accordingly, pursuant
to Tex. R. App. P. 52.8 and without hearing oral
argument, the trial court was directed to vacate in part
Procedural Posture its May 12, 2003 order and to conduct further
Nearly 400 plaintiffs sued defendant company and over
proceedings consistent with this opinion.
100 other defendants for alleged asbestos-related
injuries from 1935 to the present. The Texas trial court
issued an order requiring the company to turn over most
LexisNexis® Headnotes
of the documents in plaintiffs' discovery request. A
divided court of appeals declined to grant mandamus
relief. The company sought relief from this court on
petition for writ of mandamus.
Civil Procedure > Parties > Real Party in
Overview
Interest > General Overview
The company produced over 55,000 documents.
However, it withheld 607 documents, citing the attorney-
Civil Procedure > ... > Discovery > Privileged
client privilege in Tex. R. Evid. 503 and the work-
Communications > General Overview
product privilege in Tex. R. Civ. P. 192.5. It served on
plaintiffs a privilege log, describing the documents
HN1[x%] Parties, Real Party in Interest
withheld. Plaintiffs requested a hearing challenging the
Leslie Roussev
Atmos Energy's Motion to Compel Testimony Regarding Non-Economic Damages and Clarify Court Order - Page 15
Page 2 of 9
136 S.W.3d 218, *218; 2004 Tex. LEXIS 445, **445
A “privilege log" is the commonly used term for a Civil Procedure > ... > Discovery > Methods of
response pursuant to Tex. R. Civ. P. 193.3(b) that: (1) Discovery > Inspection & Production Requests
describes the information or materials withheld from
discovery that, without revealing the privileged HN4jx&] Discovery, Privileged Communications
information or otherwise waiving the privilege, enables
other parties to assess the applicability of the privilege, Generally, a trial court conducts an in camera inspection
and (2) asserts a specific privilege for each item or to determine if a document is in fact privileged. If it is not
group of items withheld. The log is sufficiently detailed privileged, then it may become evidence that the
for the real parties in interest to assess the applicability factfinder may consider. If the document is privileged, it
of the specific privilege being asserted. Tex. R. Civ. P. is not subject to discovery and may not be considered
193.3(b). by the factfinder, even when the factfinder is the trial
court.
Civil Procedure > ... > Writs > Common Law
Writs > Mandamus Civil Procedure > Appeals > Standards of
Review > Abuse of Discretion
Civil Procedure > Remedies > Writs > General
Overview Civil Procedure > ... > Discovery > Privileged
Communications > General Overview
HN2(%) Common Law Writs, Mandamus
HN5(%] Standards of Review, Abuse of Discretion
Mandamus relief is appropriate to correct a clear abuse
of discretion or the violation of a duty imposed by law The trial court abuses its discretion in refusing to
when there is no other adequate remedy by law. A clear onduct an in camera inspection when such review is
failure by the trial court to analyze or apply the law critical to the evaluation of a privilege claim.
correctly will constitute an abuse of discretion and may
result in appellate reversal by extraordinary writ.
Mandamus is proper when the trial court erroneously Civil Procedure > ... > Privileged
orders the disclosure of privileged information because Communications > Work Product
the trial court's error cannot be corrected on appeal. Doctrine > General Overview
Civil Procedure > ... > Discovery > Privileged
Civil Procedure > ... > Discovery > Privileged Communications > General Overview
Communications > General Overview
HN6{x] Privileged Communications, Work Product
Civil Procedure > ... > Discovery > Methods of Doctrine
Discovery > Inspection & Production Requests
The prima facie standard for privileged documents
HN3 |x] Discovery, Privileged Communications requires only the minimum quantum of evidence
necessary to support a rational inference that the
The party who seeks to limit discovery by asserting a allegation of fact is true. The documents themselves
privilege has the burden of proof. However, if a party may constitute sufficient evidence to make a prima facie
asserting privilege claims makes a prima facie showing showing of attorney-client or work product privilege.
of privilege and tenders documents to the trial court, the
trial court must conduct an in camera inspection of
those documents before deciding to compel production. Civil Procedure > ... > Privileged
Communications > Work Product
Doctrine > General Overview
Civil Procedure > ... > Discovery > Privileged
Communications > General Overview Civil Procedure > ... > Discovery > Privileged
Communications > General Overview
Evidence > Privileges > General Overview
Leslie Roussev
Atmos Energy's Motion to Compel Testimony Regarding Non-Economic Damages and Clarify Court Order - Page 16
Page 3 of 9
136 S.W.3d 218, *218; 2004 Tex. LEXIS 445, **445
HN7(%] Privileged Communications, Work Product employment. As such, the attorney-client privilege may
Doctrine apply to communications between attorneys and
employees who are not executives or supervisors.
An affidavit, even if it addresses groups of documents
rather than each document individually, has been held
to be sufficient to make a prima facie showing of
Civil Procedure > ... > Privileged
attorney-client and/or work product privilege.
Communications > Work Product
Doctrine > General Overview
Civil Procedure > ... > Discovery > Privileged Legal Ethics > Client Relations > Duties to
Communications > General Overview Client > Duty of Confidentiality
HNe[x] Discovery, Privileged Communications HN11{%] Privileged Communications, Work Product
Doctrine
For an affidavit to have probative value, an affiant must
swear that the facts presented in the affidavit reflect his See Tex. R. Civ. P. 192.5(a).
personal knowledge.
Civil Procedure > ... > Discovery > Methods of
Civil Procedure > ... > Discovery > Privileged Discovery > General Overview
Communications > General Overview
Criminal Law & Procedure > ... > Miranda
HNg[x] Discovery, Privileged Communications Rights > Self-Incrimination Privilege > Right to
Counsel During Questioning
There is no presumption that documents are privileged,
and there is no presumption that a party listed on the Evidence > Privileges > General Overview
privilege log is an authorized person under the rule
governing the privilege. Civil Procedure > ... > Discovery > Privileged
Communications > General Overview
HN12{%] Discovery, Methods of Discovery
Civil Procedure > ... > Discovery > Privileged
Communications > General Overview Plaintiffs are entitled to put on their own evidence on
privilege issues. Tex. R. Civ. P. 193.4.
Evidence > Privileges > Attorney-Client
Privilege > Scope
Evidence > Privileges > General Overview Civil Procedure > ... > Discovery > Privileged
Communications > General Overview
Evidence > Privileges > Attorney-Client
Privilege > General Overview Evidence > Privileges > General Overview
HN10[%] Discovery, Privileged Communications Civil Procedure > Discovery & Disclosure > General
Overview
For attorney-client privilege, the subject matter test has
replaced the control group test pursuant to the Civil Procedure > ... > Discovery > Methods of
amendment of Tex. R. Evid. 503. Tex. R. Evid. Discovery > Inspection & Production Requests
503(a)(2) & cmt. The subject matter test is met where
the employee makes the communication at the direction HN13[%] Discovery, Privileged Communications
of his superiors in the corporation and where the subject
matter upon which the attorney's advice is sought by the When the party asserting a privilege has made a prima
corporation and dealt with in the communication is the facie case for its claim, the requesting party has the
performance by the employee of the duties of his burden to point out to the court which specific
Leslie Roussev
Atmos Energy's Motion to Compel Testimony Regarding Non-Economic Damages and Clarify Court Order - Page 17
Page4 of 9
136 S.W.3d 218, *218; 2004 Tex. LEXIS 445, **445
documents or groups of documents it believes require requiring DuPont to turn over most of the documents,
inspection. Otherwise, trial judges will be required to ruling that DuPont had not made a prima facie showing
inspect untold numbers of documents. The requesting of privilege. A divided court of appeals declined to grant
party should be in a position to do so based upon (1) the mandamus relief. __S.W.3d__. DuPont now seeks relief
contents of the privilege log, (2) other discovery and from this Court. DuPont contends that the trial court
documents, (3) discovery specifically designated to test abused its discretion by holding a hearing on the
the claim of privilege, and (4) the evidence at the plaintiffs’ global challenge to all of the documents
hearing. identified in its privilege log. DuPont further argues that
the trial court abused its discretion by finding that
DuPont had not made a prime facie showing of privilege
for the documents at issue and refusing to conduct an in
Civil Procedure > ... > Discovery > Privileged
camera inspection of the documents before rejecting
Communications > General Overview
its [**2] privilege claims.
Evidence > Privileges > General Overview
The court of appeals declined to grant DuPont
mandamus relief. We agree with the court of appeals
Civil Procedure > Discovery & Disclosure > General
that the trial court did not abuse its di
Preview
FILED 10/11/2023 4:35 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Loaidi Grove DEPUTY CAUSE NO. DC-21-09308 MELISSA TARVER, Individually IN THE DISTRICT COURT and as Representative of the Estate of DERIC TARVER, and as next friend of B.T. and K.T., MINORS, RANDY TARVER and DEBBIE TARVER Plaintiffs 192NP JUDICIAL DISTRICT VS. ATMOS ENERGY CORPORATION and BOBCAT CONTRACTING, LLC Defendants DALLAS COUNTY, TEXAS Michael Glover Plaintiff VS. ATMOS ENERGY CORPORATION and BOBCAT CONTRACTING, LLC Defendants TAMMY BOEHLER, Individually and as Representative of the Estate of Ethan Knight, and Clay Boehler Plaintiffs ATMOS ENERGY CORPORATION and FESCO, LTD. Defendants DEFENDANT BOBCAT CONTRACTING, LLC’S JOINDER IN DEFENDANT ATMOS ENERGY CORPORATION’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER AND ATMOS ENERGY CORPORATION’S MOTION TO STRIKE IMPROPER DESIGNATION AND EXCLUDE TESTIMONY OF EXPERT WITNESS GEORGE GLASS, M.D. DEFENDANT BOBCAT CONTRACTING, LLC’S JOINDER IN DEFENDANT ATMOS ENERGY CORPORATION’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER AND ATMOS ENERGY CORPORATION’S MOTION TO STRIKE IMPROPER DESIGNATION AND EXCLUDE TESTIMONY OF EXPERT WITNESS GEORGE GLASS, M.D. - Page 1 TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Defendant Bobcat Contracting, LLC, and files this Joinder in (1) Defendant Atmos Energy Corporation’s Motion to Compel Testimony Regarding Non-Economic Damages and Clarify Court Order (filed October 4, 2023, and attached hereto as Exhibit A), and (2) Atmos Energy Corporation’s Motion to Strike Improper Designation and Exclude Testimony of Expert Witness George Glass, M.D. (filed September 18, 2023, and attached hereto as Exhibit B). Exhibits A and B are incorporated by reference as if set forth fully herein. Respectfully submitted, WALTERS BALIDO & CRAIN, L.L.P. BY:_/s/ Sarah Holley Long SARAH HOLLEY LONG — 24036798 Meadow Park Tower, Suite 1500 10440 North Central Expressway Dallas, Texas 75231 Telephone: 214-749-4805 Facsimile: 214-760-1670 LongEDocsNotifications@wbclawfirm.com ATTORNEY FOR DEFENDANT BOBCAT CONTRACTING, LLC CERTIFICATE OF SERVICE This is to certify that on this the 11th day of October, 2023, a true and correct copy of the above document has been forwarded to all counsel of record. /s/ Sarah Holley Long SARAH HOLLEY LONG DEFENDANT BOBCAT CONTRACTING, LLC’S JOINDER IN DEFEND. ATMOS ENERGY CORPORATION’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER AND ATMOS ENERGY CORPORATION’S MOTION TO STRIKE IMPROPER DESIGNATION AND EXCLUDE TESTIMONY OF EXPERT WITNESS GEORGE GLASS, M.D. - Page 2 EXHIBIT A DEFENDANT BOBCAT CONTRACTING, LLC’S JOINDER IN DEFENDANT ATMOS ENERGY CORPORATION’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER AND ATMOS ENERGY CORPORATION’S MOTION TO STRIKE IMPROPER DESIGNATION AND EXCLUDE TESTIMONY OF EXPERT WITNESS GEORGE GLASS, M.D. - Page 3 FILED 10/4/2023 1:20 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Loaidi Grove DEPUTY CAUSE NO. DC-21-09308 MELISSA TARVER, Individually and as Representative of the Estate of DERIC TARVER, and as next friend of B.T. and K.T., Minors, RANDY TARVER and DEBBIE TARVER IN THE DISTRICT COURT OF Vv. DALLAS COUNTY, TEXAS 192ND JUDICIAL DISTRICT ATMOS ENERGY CORPORATION and BOBCAT CONTRACTING, LLC TAMMY BOEHLER, Individually and as Representative of the Estate of ETHAN KNIGHT, and CLAY BOEHLER Vv. ATMOS ENERGY CORPORATION and FESCO, LTD. MICHAEL GLOVER v. ATMOS ENERGY CORPORATION and BOBCAT CONTRACTING, LLC ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER The Court ordered the Tarver Plaintiffs to amend their petition, in advance of Melissa Tarver’s and Debbie Tarver’s depositions, to state the maximum amount of damages that the Tarver Plaintiffs are seeking in this case. The Second Amended Petition states that the Tarver Plaintiffs are seeking $747.5 million dollars in compensatory damages. Because the Tarver Plaintiffs (through an expert) have asserted economic damages in the range of $5,845,393— $6,888,777, more than seven hundred and forty million of the total alleged damages constitute alleged non-economic damages. ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 1 At Melissa Tarver’s and Debbie Tarver’s depositions, counsel to the Tarver Plaintiffs! repeatedly instructed his clients not to answer questions concerning their $740+ million claim for non-economic damages. Currently, Defendants have no information about the $747.5 million amount, other than the Tarver Plaintiffs’ disclosure through an expert report that they are claiming $5,845,393-$6,888,777 in economic damages. This leaves $741,654,607-$740,611,233 in non- economic damages. But Defendants have been unable to obtain any information about whether the Tarver Plaintiffs approve that amount, how the Tarver Plaintiffs determined that amount, how much of that amount is attributable to each of the Tarver Plaintiffs’ claims, or how much of that amount is for what category of non-economic damages. Instead, counsel to the Tarver Plaintiffs claim this information is privileged and instructed Melissa Tarver and Debbie Tarver not to answer such questions. There is no authority supporting such a claim of privilege. To the contrary, the Texas Rules of Civil Procedure make plain that a defendant “may obtain discovery of any other party’s legal contentions and the factual bases for those contentions.” Tex. R. Civ. P. 192.3(j). The Rules also expressly state that “information discoverable under Rule 192.3” including information “concerning . . . contentions” ‘not work product protected from discovery.” Atmos respectfully requests this Court to compel testimony: through written responses pursuant to Texas Rule of Civil Procedure 200, if the Court finds that format the most appropriate—concerning the Tarver Plaintiffs’ non-economic damages. 1 The Tarver Plaintiffs include Melissa Tarver, Individually and as Representative of the Estate of Deric Tarver, and as next friend of B.T. and K.T., Minors, Randy Tarver, and Debbie Tarver. ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 2 LEGAL STANDARD “An attorney may instruct a witness not to answer a question during an oral deposition only if necessary to preserve a privilege, comply with a court order or these rules, protect a witness from an abusive question or one for which any answer would be misleading, or secure a ruling pursuant to paragraph (g).” Texas Rule of Civil Procedure 199.5(f). “An attorney must not... instruct the witness not to answer a question . . . unless there is a good faith factual and legal basis for doing so at the time.” Rule 199.5(h). “Any party may, at any reasonable time, request a hearing on . . . an instruction not to answer .... The party seeking to avoid discovery must present any evidence necessary to support the objection or privilege either by testimony at the hearing or by affidavits served on opposing parties at least seven days before the hearing.” Rule 199.6; see also In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 227 (Tex. 2004) (holding that the party asserting a privilege has the burden of proof and must make a prima facie showing, which requires the “minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true”). ARGUMENT The Court should compel answers to questions concerning the Tarver Plaintiffs’ claim for damages. In response to this Court’s Order? on Defendants’ Special Exceptions, the Tarver Plaintiffs filed their Second Amended Petition stating: “for compensatory damages and non- 2 The order requires that “1. Melissa Tarver, Melissa Tarver in her capacity as next friend of B.T., Melissa Tarver in her capacity as next friend of K.T., Debbie Tarver, and Randy Tarver state: (a) what categories of damages he or she seeks; (b) the maximum amount of damages that the Plaintiffs seeks collectively.” September 22, 2023 Order Sustaining Atmos Energy’s and Bobcat Contracting, LLC’s Special Exceptions at 1. Because the Tarver Plaintiffs included a single, collective number for all of their alleged damages, Atmos also requests clarification whether the Court’s intent was to require each of the various Tarver Plaintiffs to state the maximum amount of damages he or she seeks individually, including in Melissa Tarver’s representative capacities. ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 3 economic losses of the Tarver Plaintiffs, exclusive of any award of exemplary damages, the Tarver Plaintiffs plead a maximum amount of seven-hundred forty seven million, five-hundred thousand dollars ($747,500,000), which reflects the commensurate loss Plaintiffs have suffered mentally, emotionally, physically, physically, and spiritually for Deric Tarver’s death.” Second Am. Pet. at 10. On its face, this number—$747.5 million rather than, for example, $750 million—suggests that it represents the sum total of various amounts the Tarver Plaintiffs are claiming as damages. But the Tarvers have not provided those calculations. Instead, as a result of an expert report on non-economic damages, the Defendants are aware only that $5,845,393-$6,888,777 of the total is comprised of alleged economic damages, leaving $741,654,607-$740,611,233 in alleged non- economic damages. The Tarvers’ counsel refused to allow his clients to respond to questions concerning these amounts based on the attorney-client privilege. The Tarver Plaintiffs’ contentions concerning, and evidence regarding, their $747.5 million damage claim are not privileged. And yet counsel to the Tarver Plaintiffs repeatedly instructed Melissa Tarver and Debbie Tarver not to answer basic questions concerning their claim, despite defense counsel making clear he was not seeking to discover privileged discussions. The following excerpt is representative: Q And there's a new version of the lawsuit that was filed yesterday. Have you had a chance to read that? A No. Q Are you aware of what has been asked in that pleading? A No. Q So you're not aware of how much money is being requested in that pleading? A I've heard, but I don't know if -- the exact. Just -- I just know that I was told that there was -- last -- last night. Q And I don't want to know the substance of your conversation with your lawyer. That's why I asked you about the piece of paper and whether or not you have seen a piece of paper and approved an amount that was alleged? MR. AGOSTO: Hold on. I'm going to object as attorney-client privilege and instruct you not answer. ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 4 THE WITNESS: I don't — MR. AGOSTO: Just don’t answer. MR. PARKERSON: I don't want to know about your communications with — MR. AGOSTO: Yeah. MR. PARKERSON: -- Mr. Agosto. MR. AGOSTO: Listen to my — careful question — instruction and objection. THE WTINESS: Yes. MR. AGOSTO: I’m objecting when he gets into conversations with us, even subtly, which he’s trying to do. MR. PARKERSON: No, I’m not. MR. AGOSTO: Oh, yes, you are. It’s on the record. Then I’m instructing you not to answer ... It’s attorney-client privilege. I instruct you not to answer. THE WITNESS: Okay. Q (By Mr. Parkerson): I would like to know whether you, personally, approve of a claim of $747 million? MR. AGOSTO: Objection. T instruct you not to answer. It’s attorney- client privilege. Q. (By Mr. Parkerson): I don't want to know your communications with Mr. Agosto. That's not what I'm asking for. MR. AGOSTO: See, it's the same thing. Subtle, trying to get involved into our discussion whether it's approved or not. That's a discussion we had. THE WITNESS: Right. MR. AGOSTO: So he's not going to ask you that question. I instruct you not to answer. It's attorney-client privilege. THE WITNESS: Right. Yes. App. at 35 (Ex. 2, Debbie Tarver Tr. at 42:8-44:13); see also App. at 91 (Ex. 3, Melissa Tarver Tr. at 144:16-21). Whether the Tarvers approve, personally and individually, of the $747.5 million damage claim is not privileged, as the Tarvers’ counsel asserted. “A party may obtain discovery of any other party’s legal contentions and the factual bases for those contentions.” Tex. R. Civ. P. 192.3(j). Information about the Tarvers’ contentions concerning, and evidence supporting, this $747.5 million damage claim is neither protected by the attorney-client privilege nor shielded by the work-product doctrine. The attorney-client privilege only protects clients “from disclosing confidential communications made to facilitate the rendition of professional legal services to the ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 5 client .. . between the client . . . and the client’s lawyer.” Tex. R. Evid. 503(b)(1). It does not prevent testimony regarding a party’s contentions or “extend to the disclosure of underlying facts, but merely to the disclosure of attorney-client communications.” Jn re Tex. Farmers Ins. Exch., 990 S.W.2d 337, 341 (Tex. App.—Texarkana 1999, no pet.) (citing Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)). As for any work-product protection, the Rules expressly state that a party 36Ss &, contentions” are “not work product protected from discovery.” Tex. R. Civ. P. 192.5(c)(1). At Melissa Tarver’s and Debbie Tarver’s depositions, counsel also refused to allow the witnesses to answer questions concerning how much of the $747.5 million damage claim was allocated to each of the individual plaintiffs. App. at 77 (Ex. 3, Melissa Tarver Tr. at 85:23—-86:13; 86:24-87:6); App. at 35-36 (Ex. 2, Debbie Tarver Tr. at 44:25—45:11; 45:18-25). Counsel also refused to allow the witnesses to answer questions about how much of the $747.5 million damage claim was for various categories of non-economic damages, such as mental anguish or loss of companionship, based on the attorney-client privilege. App. at 77 (Ex. 3, Melissa Tarver Tr. at 86:19—23; 87:7—23; 88:5-12); App. at 36 (Ex. 2, Debbie Tarver Tr. at 46:1—8). Indeed, counsel refused to allow Melissa Tarver to answer whether she was able to identify “what amount of money would fairly and reasonably compensate [her] for damages for past [and future] mental anguish”, App. at 77 (Ex. 3, Melissa Tarver Tr. at 86:14-18; 87:24—-88:4), and similarly instructed Debbie Tarver not to answer “how much [she] would allocate for [her] past and future mental anguish,” App. at 36 (Ex. 2, Debbie Tarver Tr. at 45:20-25). Counsel also refused to allow Melissa Tarver to answer whether she was “aware of any calculation that rationally connects the amount of [her] claim to any component of future mental anguish.” App. at 77 (Ex. 3, Melissa Tarver Tr. at 88:5— 12). ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 6 Plaintiffs’ counsel made clear that he was “going to instruct [the witness] not to answer [] [a]nything about the petition, anything legal” because, he claimed, “it’s attorney-client privileged.” App. at 82 (Ex. 3, Melissa Tarver Tr. at 108:13—15); see also App. at 36 (Ex. 2, Debbie Tarver Tr. at 45:8-11 (“Objection; attorney-client privilege. I instruct you not to answer. Any of these questions about the lawsuit, I’m going to be telling you that.”)). Throughout the deposition, the objections were often lengthy and constituted improper coaching. See, e.g., App. at 36 (Ex. 2, Debbie Tarver Tr. at 46:1—2, 9-10, 19-25 (After Atmos’s counsel made clear he was “not asking for your communications [with counsel],” the Tarvers’ counsel continued to object: “Stop, then, invading attorney-client privilege. As you know, you’re not entitled to it. So, why are you doing it? Ihave no idea. I’m going to continue to instruct you not to answer when he tries to invade the protection that we have of attorney-client privilege. He can’t get into it. He won’t get into it. And I won’t let him.”)). Accordingly, counsel for Atmos tried to ask questions concerning discoverable information in a way that would avoid further objection. For example, Melissa Tarver testified that her “financial needs in the future” is something that causes her “worry,” App. at 84 (Ex. 3, Melissa Tarver Tr. at 114:24-115:1), but Plaintiffs’ counsel instructed Melissa Tarver not to answer follow-up questions: Q (By Mr. Parkerson): So you haven’t consulted any financial advisor about what you need for your future to address the tuition for Bailey? MR. AGOSTO: I’m going to instruct you not to answer. It’s attorney-client privilege. The conversations we have, with your lawyers, are attorney-client privilege and Linstruct you not to answer. Q (By Mr. Parkerson): There’s also an allegation of loss of inheritance. Do you know what that means? MR. AGOSTO: Objection, form. A Yes. Q (By Mr. Parkerson): And have you quantified that or calculated what that is? ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 7 MR. AGOSTO: Objection, form. Attorney-client privilege. I instruct you not to answer. Q (By Mr. Parkerson): So let me ask you this: Have you thought about what amount it would take to make you financially comfortable? MR. AGOSTO: Objection; attorney-client privilege. Do not answer that question. Again, because it’s attorney-client privilege and that’s it. App. at 85 (id. at 117:2—9; 119:1—9, 119:22-120:2). Similarly, when counsel for Atmos asked Debbie Tarver “[s]o have you thought about what you want from this lawsuit?”, App. at 39 (Ex. 2, Debbie Tarver Tr. at 59:10—11), she and her counsel refused to respond: MR. AGOSTO: Objection, form. And I’m going to—again, if they’re asking about the lawsuit and conversations we had, I’m going to instruct you not to answer. It invades the attorney-client privilege. MR. PARKERSON: And I’m going to say that I don’t want to know your conversations. I want to know what you think and want. What you want from this lawsuit. A Then I have no answer. MR. AGOSTO: Because it is—because it invades the attorney-client privilege? THE WITNESS: Correct. Id. (Ex. 2, Debbie Tarver Tr. at 59:12—23). All of the questions to which the Tarvers’ counsel objected on the basis of privilege sought information about the Tarvers’ contentions and the factual basis for them. Under the Texas Rules of Civil Procedure, that information is discoverable, and not privileged. Tex. R. Civ. P. 192.3(j). CONCLUSION Atmos requests that the Court order Melissa Tarver and Debbie Tarver to respond. in writing, pursuant to Texas Rule of Civil Procedure 200, if the Court deems appropriate—to the following questions: 1 Do you approve of the $747,500,000 claim for damages? 2 How much of the $747,500,000 claim is for you? 3 [For Melissa Tarver only:] How much of the $747,500,000 claim is for B.T. and K.T.? ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 8 [For Melissa Tarver only:] How much of the $747,500,000 claim is for the Estate of Deric Tarver? How much of the $747,500,000 claim is for damages for your mental anguish in the past [and for Melissa Tarver only:] and for damages for the mental anguish of B.T. and K.T. in the past]? How much of the $747,500,000 claim is for damages for your mental anguish in the future [and for Melissa Tarver only:] and for damages for the mental anguish of B.T. and K.T. in the future? How much do you think would fairly and reasonably compensate you for your mental anguish in the past and in the future [and for Melissa Tarver only:] and for the mental anguish of B.T. and K.T. in the past and in the future? How much of the $747,500,000 claim is for damages for your loss of companionship and society [and for Melissa Tarver only:] and for damages for the loss of companionship and society of B.T. and K.T.? How much do you think would fairly and reasonably compensate you for your loss of companionship and society [and for Melissa Tarver only:] and for the loss of companionship and society of B.T. and K.T.? 10 [For Melissa Tarver only:] How much of the $747,500,000 claim is for damages for your loss of consortium and for damages for the loss of consortium of B.T. and K.T. in the future? 11 [For Melissa Tarver only:] How much do you think would fairly and reasonably ompensate you for your loss of consortium and for the loss of consortium of B.T. and K.T. in the future? 12. [For Melissa Tarver only:] How much of the $747,500,000 claim is for damages for your loss of inheritance and for damages for damages for the loss of inheritance of B.T. and K.T. in the future? 13 [For Melissa Tarver only:] How much of the $747,500,000 claim is for damages for your loss of inheritance and for damages for damages for the loss of inheritance of B.T. and K.T. in the future? 14 Are you aware of any calculation that rationally connects the $747,500,000 claim to any category of damages you are seeking, and if so, describe the calculation? 15 [For Melissa Tarver only:] How much money would make you feel financially comfortable, meaning able to address the financial needs of you, and B.T. and K.T.? ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE9 Atmos also respectfully requests clarification concerning whether the Court’s September 22, 2023 Order on Atmos’s Special Exceptions was intended to require each of the various Tarver Plaintiffs to state the maximum amount of damages he or she seeks individually, including in Melissa Tarver’s representative capacities. Atmos seeks any further relief to which it is justly entitled. ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 10 DATED: October 4, 2023 Respectfully submitted, /s/ Jessica B. Pulliam Jessica B. Pulliam State Bar No. 24037309 Susan Cannon Kennedy State Bar No. 24051663 BAKER BOTTS L.L.P. 2001 Ross Avenue, Suite 1100 Dallas, Texas 75201 Telephone: (214) 953-6500 Facsimile: (214) 953-6503 jessica.pulliam@bakerbotts.com susan.kennedy@bakerbotts.com G. Bruce Parkerson State Bar No. 00793106 PLAUCHE MASELLI PARKERSON LLP 701 Poydras St., Suite 3800 New Orleans, Louisiana 70139 Telephone: (504) 582-1142 Facsimile: (504) 582-1172 bparkerson@pmpllp.com ATTORNEYS FOR DEFENDANT ATMOS ENERGY CORPORATION CERTIFICATE OF SERVICE I hereby certify that on October 4, 2023, a copy of the foregoing was served the Court’s electronic filing system on all counsel of record. /s/ Jessica B. Pulliam Jessica B. Pulliam ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 11 CERTIFICATE OF CONFERENCE Throughout the depositions on September 27, 2023, counsel for movant and counsel for respondent have personally conducted a conference at which there was a substantive discussion of every item presented to the Court in this motion and despite best efforts the counsel have not been able to resolve those matters presented. Certified to the 4" day of October 2023. /s/ Jessica B. Pulliam Jessica B. Pulliam ATMOS ENERGY’S MOTION TO COMPEL TESTIMONY REGARDING NON-ECONOMIC DAMAGES AND CLARIFY COURT ORDER PAGE 12 EXHIBIT 1 Atmos Energy's Motion to Compel Testimony Regarding Non-Economic Damages and Clarify Court Order - Page 13 @ LexisNexis User Name: Leslie Roussev Date and Time: Wednesday, October 4, 2023 9:44:00AM CDT Job Number: 207297052 Document (1) 1.In re DuPont de Nemours & Co., 136 S.W.3d 218 Client/Matter: 073085.0152 Search Terms: In re DuPont de Nemours & Co., 136 S.W.3d 218 Search Type: Natural Language Narrowed by: Content Type Narrowed by Cases -None- (@ LexisNexis) About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2023 LexisNexis Leslie Roussev Atmos Energy's Motion to Compel Testimony Regarding Non-Economic Damages and Clarify Court Order - Page 14 A Caution As of: October 4, 2023 2:44 PM Z In re DuPont de Nemours & Co. Supreme Court of Texas May 14, 2004, Opinion Delivered NO. 03-0464 Reporter 136 S.W.3d 218 *; 2004 Tex. LEXIS 445 **; 47 Tex. Sup. J. 583 company's privilege claims. The company tendered the IN RE E.|. DUPONT DE NEMOURS AND COMPANY documents listed on the privilege log to the court for in Prior History: /n re E./. Dupont De Nemours & Co., 133 camera inspection. On appeal, the company contended the trial court abused its discretion by holding a hearing S.W.3d 677, 2003 Tex. App. LEXIS 4473 (Tex. App. on the plaintiffs’ global challenge to all of the documents Beaumont, May 22, 2003) identified in its privilege log and argued the trial court Disposition: Pursuant to Texas Rule of Appellate abused its discretion by finding it had not made a prime Procedure 52.8, without hearing oral argument, the facie showing of privilege for the documents and Court conditionally granted the petition for writ of tefusing to conduct an in camera inspection before mandamus. The court of appeals’ opinion was ordered rejecting its privilege claims. The trial court did not published. abuse its discretion in holding a hearing on plaintiffs’ global challenge to the company's privilege claims. This court conditionally granted the writ insofar as it Core Terms concluded the company made a prima facie showing of privilege for many of the documents the trial court documents, trial court, privilege log, attorney-client, in ordered produced without conducting an in camera camera, prima facie case, privilege claim, work product review. privilege, privileged, asserting, discovery, prima facie, plaintiffs’, inspection, log, claim of privilege, personal Outcome knowledge, court of appeals, human resources, The company's petition for mandamus relief from the mandamus relief, database, global trial court ruling was conditionally granted insofar as the ruling denied the company's privilege claim without Case Summary conducting an in camera review. Accordingly, pursuant to Tex. R. App. P. 52.8 and without hearing oral argument, the trial court was directed to vacate in part Procedural Posture its May 12, 2003 order and to conduct further Nearly 400 plaintiffs sued defendant company and over proceedings consistent with this opinion. 100 other defendants for alleged asbestos-related injuries from 1935 to the present. The Texas trial court issued an order requiring the company to turn over most LexisNexis® Headnotes of the documents in plaintiffs' discovery request. A divided court of appeals declined to grant mandamus relief. The company sought relief from this court on petition for writ of mandamus. Civil Procedure > Parties > Real Party in Overview Interest > General Overview The company produced over 55,000 documents. However, it withheld 607 documents, citing the attorney- Civil Procedure > ... > Discovery > Privileged client privilege in Tex. R. Evid. 503 and the work- Communications > General Overview product privilege in Tex. R. Civ. P. 192.5. It served on plaintiffs a privilege log, describing the documents HN1[x%] Parties, Real Party in Interest withheld. Plaintiffs requested a hearing challenging the Leslie Roussev Atmos Energy's Motion to Compel Testimony Regarding Non-Economic Damages and Clarify Court Order - Page 15 Page 2 of 9 136 S.W.3d 218, *218; 2004 Tex. LEXIS 445, **445 A “privilege log" is the commonly used term for a Civil Procedure > ... > Discovery > Methods of response pursuant to Tex. R. Civ. P. 193.3(b) that: (1) Discovery > Inspection & Production Requests describes the information or materials withheld from discovery that, without revealing the privileged HN4jx&] Discovery, Privileged Communications information or otherwise waiving the privilege, enables other parties to assess the applicability of the privilege, Generally, a trial court conducts an in camera inspection and (2) asserts a specific privilege for each item or to determine if a document is in fact privileged. If it is not group of items withheld. The log is sufficiently detailed privileged, then it may become evidence that the for the real parties in interest to assess the applicability factfinder may consider. If the document is privileged, it of the specific privilege being asserted. Tex. R. Civ. P. is not subject to discovery and may not be considered 193.3(b). by the factfinder, even when the factfinder is the trial court. Civil Procedure > ... > Writs > Common Law Writs > Mandamus Civil Procedure > Appeals > Standards of Review > Abuse of Discretion Civil Procedure > Remedies > Writs > General Overview Civil Procedure > ... > Discovery > Privileged Communications > General Overview HN2(%) Common Law Writs, Mandamus HN5(%] Standards of Review, Abuse of Discretion Mandamus relief is appropriate to correct a clear abuse of discretion or the violation of a duty imposed by law The trial court abuses its discretion in refusing to when there is no other adequate remedy by law. A clear onduct an in camera inspection when such review is failure by the trial court to analyze or apply the law critical to the evaluation of a privilege claim. correctly will constitute an abuse of discretion and may result in appellate reversal by extraordinary writ. Mandamus is proper when the trial court erroneously Civil Procedure > ... > Privileged orders the disclosure of privileged information because Communications > Work Product the trial court's error cannot be corrected on appeal. Doctrine > General Overview Civil Procedure > ... > Discovery > Privileged Civil Procedure > ... > Discovery > Privileged Communications > General Overview Communications > General Overview HN6{x] Privileged Communications, Work Product Civil Procedure > ... > Discovery > Methods of Doctrine Discovery > Inspection & Production Requests The prima facie standard for privileged documents HN3 |x] Discovery, Privileged Communications requires only the minimum quantum of evidence necessary to support a rational inference that the The party who seeks to limit discovery by asserting a allegation of fact is true. The documents themselves privilege has the burden of proof. However, if a party may constitute sufficient evidence to make a prima facie asserting privilege claims makes a prima facie showing showing of attorney-client or work product privilege. of privilege and tenders documents to the trial court, the trial court must conduct an in camera inspection of those documents before deciding to compel production. Civil Procedure > ... > Privileged Communications > Work Product Doctrine > General Overview Civil Procedure > ... > Discovery > Privileged Communications > General Overview Civil Procedure > ... > Discovery > Privileged Communications > General Overview Evidence > Privileges > General Overview Leslie Roussev Atmos Energy's Motion to Compel Testimony Regarding Non-Economic Damages and Clarify Court Order - Page 16 Page 3 of 9 136 S.W.3d 218, *218; 2004 Tex. LEXIS 445, **445 HN7(%] Privileged Communications, Work Product employment. As such, the attorney-client privilege may Doctrine apply to communications between attorneys and employees who are not executives or supervisors. An affidavit, even if it addresses groups of documents rather than each document individually, has been held to be sufficient to make a prima facie showing of Civil Procedure > ... > Privileged attorney-client and/or work product privilege. Communications > Work Product Doctrine > General Overview Civil Procedure > ... > Discovery > Privileged Legal Ethics > Client Relations > Duties to Communications > General Overview Client > Duty of Confidentiality HNe[x] Discovery, Privileged Communications HN11{%] Privileged Communications, Work Product Doctrine For an affidavit to have probative value, an affiant must swear that the facts presented in the affidavit reflect his See Tex. R. Civ. P. 192.5(a). personal knowledge. Civil Procedure > ... > Discovery > Methods of Civil Procedure > ... > Discovery > Privileged Discovery > General Overview Communications > General Overview Criminal Law & Procedure > ... > Miranda HNg[x] Discovery, Privileged Communications Rights > Self-Incrimination Privilege > Right to Counsel During Questioning There is no presumption that documents are privileged, and there is no presumption that a party listed on the Evidence > Privileges > General Overview privilege log is an authorized person under the rule governing the privilege. Civil Procedure > ... > Discovery > Privileged Communications > General Overview HN12{%] Discovery, Methods of Discovery Civil Procedure > ... > Discovery > Privileged Communications > General Overview Plaintiffs are entitled to put on their own evidence on privilege issues. Tex. R. Civ. P. 193.4. Evidence > Privileges > Attorney-Client Privilege > Scope Evidence > Privileges > General Overview Civil Procedure > ... > Discovery > Privileged Communications > General Overview Evidence > Privileges > Attorney-Client Privilege > General Overview Evidence > Privileges > General Overview HN10[%] Discovery, Privileged Communications Civil Procedure > Discovery & Disclosure > General Overview For attorney-client privilege, the subject matter test has replaced the control group test pursuant to the Civil Procedure > ... > Discovery > Methods of amendment of Tex. R. Evid. 503. Tex. R. Evid. Discovery > Inspection & Production Requests 503(a)(2) & cmt. The subject matter test is met where the employee makes the communication at the direction HN13[%] Discovery, Privileged Communications of his superiors in the corporation and where the subject matter upon which the attorney's advice is sought by the When the party asserting a privilege has made a prima corporation and dealt with in the communication is the facie case for its claim, the requesting party has the performance by the employee of the duties of his burden to point out to the court which specific Leslie Roussev Atmos Energy's Motion to Compel Testimony Regarding Non-Economic Damages and Clarify Court Order - Page 17 Page4 of 9 136 S.W.3d 218, *218; 2004 Tex. LEXIS 445, **445 documents or groups of documents it believes require requiring DuPont to turn over most of the documents, inspection. Otherwise, trial judges will be required to ruling that DuPont had not made a prima facie showing inspect untold numbers of documents. The requesting of privilege. A divided court of appeals declined to grant party should be in a position to do so based upon (1) the mandamus relief. __S.W.3d__. DuPont now seeks relief contents of the privilege log, (2) other discovery and from this Court. DuPont contends that the trial court documents, (3) discovery specifically designated to test abused its discretion by holding a hearing on the the claim of privilege, and (4) the evidence at the plaintiffs’ global challenge to all of the documents hearing. identified in its privilege log. DuPont further argues that the trial court abused its discretion by finding that DuPont had not made a prime facie showing of privilege for the documents at issue and refusing to conduct an in Civil Procedure > ... > Discovery > Privileged camera inspection of the documents before rejecting Communications > General Overview its [**2] privilege claims. Evidence > Privileges > General Overview The court of appeals declined to grant DuPont mandamus relief. We agree with the court of appeals Civil Procedure > Discovery & Disclosure > General that the trial court did not abuse its di