Preview
Electronically Filed
7/21/2017 9:57 AM
Lois Rogers, Smith County District Clerk
Reviewed By: Steven Cowan
cAtJSE NO. 16-2512-B
EC TYLER HOUSING PARTNERS, LTD $ IN THE DISTRICT COUR'| OF
s
i'laintift $
$
$ SMITH COUNTY
{ì
TtrRRY GRAHAM, TREY GRAHAM, ANd $
'TERRY GRAHAM INTERESTS, LTD., s
$
I)efendants $ 1 14th JUDICIAL DISTRICT
PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE \ryITH
DISCOVERY OBLIGATIONS
Plaintiff EC Tyler Housing Partners, l,td. ("Plaintiff.' or "NDG") hles this Motion 'Io
Compel Defendants' Compliance With Discovery Obligations ("Motion") and lespectfully show
the Court the following:
I. Inr.RooucrroN
This Motion is necessitated by Defendants Terry Graham, Trey Graharn, and Terry
Graham lnterests, Ltd.'s ("collectively, the "f)efendants") month's-long refusal to produce (i) a
privilege log in accordance with Texas Rule of Civil Procedure 193.3(b)'s requirements; and (ii)
documents Defendants have already conimitted to produce. This is not a discovery squabble
over objections or scope of production. Rather, this Motion siniply asks that Defendants fulfill
their obligations under Rule 193.3(b) and produce documents they prornised to produce.
PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE \ryITH DISCOVERY
OI]LIGATIONS - PAGE 1
DAL 79929595v1
II. RnlEvaNlFacrs
l. Plaintiff filed this lawsuit on December 15, 2016 and filed its First Amended
Petition on February 14,2017 . Plaintifls lawsuit seeks redress for l)efendants' unlawful diversion
I
of surface water, trespasses, negligence, and nuisances.
2. Defendant Terry Graham lnterests, Ltd. ("TGI") owns real property that is uphill
fi'om and abuts real property owned by NDG.2 A substantial portion of NDG's clairrs arise fi'orn the
harm NDG suffered as a result of TGI unlawfully and unnaturally diverting surface water from
TGI's uphill property onto NDG's downhill property and TGI's failure to install necessary
erosion control measures on TGI's uphill propelty.3
3. On February 10, 2017 , NDG served its First Set of Recluests For Production to
Defendants ("Requests").4
4. On March 7J,2017, Defendants served their Objections and Responses to
Plaintiff s First Requests For Production ("Respouses").s Defendants also produced a voicemail
and lrandful of documents, totaling approximately 279 pages of separate documents that had
been combined into a single pdf docurnent witliout rnetadata. Additionally, Defendants
responded to numerous Requests by cornmitting, "Defendants will supplement."6
5. On March 24, 2017, Plaintifls counsel sent a letter to f)efendants' counsel
("March 24 Leffer"), requesting that Defendants produce a privilege log documenting the
materials or information that they withheld.T f'he Marclt 24 LerTer also followed up on
PlaintifïEC T'ylel I'lousing Paftners,l-td.'s Filst Amended Petition ("Amended Petition").
Arnended Petition, aI p.2.
Anrended Petition, at pp. 3-14.
Ëx. A, PlaintiffEC Tyler Ilousing Partners, Ltd.'s First Set of fìequestsFor PlodL¡ction to Defendants
Ëx. Il, Defendants Objections and Responses to Plaintiff-sFirst Requests For Prodr-rction.
Ex. fl, Defendants Objections and Ilesponses at pp.3,7.
lrol Prodr¡ction,
to PlaintifTs First Reqr.rests
Ex. C, Mal'ch 24,2017 correspondence front Bill Stark to Defèndants' cor,utsel at p. l.
PLAINTIFF'S MOTION TO COMPEL DEF[NDANTS' COMPLIANCE WITH DISCOVERY
OBLIGATIONS - PAGE 2
DAL 79929595v1
Defendants' commitrnent to supplernent their document production, asking, "[p]lease advise as
to when Plaintiff should anticipate receiving Defendants' supplementation."8 The March 24
Letter further observed that, although Plaintiff s Requests specifìcally requested the production
of electronic or magnetic data and specified the form in which NDG wanted it produced as
required by Texas Rule of Civil Procedure 1 96.4 and Defendants did not object:
Defendants' production does not appear to contain documents in their native
format or any metadata. Instead, the .pdf fìle appears to be a cornpilation of
documents that were improperly and unnecessarily converted from their native
format into a .pdf and combined with other documents. Such convefted
documents could-and should-have easily been provided in the manner'
requested by Plaintiff.e
6. On Aplil 3,2017, Defendants' connsel responded by email, committing, among
otlier things
1. We will provide a Privilege Log as requested within the timeframe set out ur
the Texas Rules of Civil Procedure.
6. Regarding the intent to supplement. We will supplement our responses as
soon as the requested information is available fol supplementation. We will
not set an arbitrary deadline for ourselves. The rnain things that would fall
into this category are the contracts between tlie parties and photographs. I am
working with my clients to obtain the photographs in their native format so
that they can be produced in the manner that you requested.
7. With regard to your complaint about the manner of production, we have
endeavored to ploduce responsive doculnents in a manner that gets the
information to you as quickly as possible. We will supplement our response
to produce the requested electronic inf-onnation, subject to any objections that
we have raised.lo
With respect to Defendants' other discovery cleficiencies, Defendants' counsel requested, "[w]e
will gladly cooperate with you, but as yor,r rright expect we have some disagreement on the
'delìciencies' of our response. That being said, I would encourage you to afford us the courtesy
8
Ex. C, March 24,2017 correspondence flonr Bill Stark to Defèndants' counseÌ aIp.2.
9
Ex. C, March 24,2017 correspondence floll Bill Stark to Defèndants'cor-lnsel atpp.2-3. The March 24Lefter
also addressed other of Def'endants' discovery defìciencies that are not the subject
of this Motion.
IO
Ex. D, Email correspondence between col¡nsel.at p. 4.
PLAINTIT-F'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE WITH DISCOVERY
OBLIGATIONS - PAGE 3
DAL 79929595v1
of time to determine whether forthcoming supplemental responses satisfy yollr concerns before
you seek courl intervention."ll
7. On April 10,2017, Defendants served their Responses to Plaintiffls Request For
Privilege Log." Defendants' Responses to Plaintiffls Request For Privilege Log consisted of a
single sentence, stating, "Defendants have withheld all email communications between
Defendant Terry Graham and/or Defendant Trey Graham and their attorneys Jerry Athefton,
Jimmy Negem, Keith Starr, and Steven Comte on the basis that such responsive information is
protected by attorney-client privilege, pursuant to TEx. R. CIv. P. i93.3(a)."13
8. On May 15, 2017-some six weeks after' Defendants' April 3, 2017 enail
committing to supplement their production-NDc liad stillnot received any supplementation
and followed up with Defendants, again asking when Defendants intended to supplement.la
NDG also observed that Defendants' privilege log failed to comply with the requirements of
Texas Rule of Civil Procedure 193.3:
Generally stating that Defendants have withheld communications with therr
attorneys does not enable Plaintiff to "assess the applicability of the privilege"
since Plaintiff has no way of determining, among other things, which individuals
participated in the communications, when the communications occurred, and what
the communications regalded generally. Please advise whether Defendants intend
to serve a privilege log in compliance with'IRCP 193.3 or whether a motion will
be necessary to cotnpel Defendants' compliance with the Rule.ls
9. Defendants' counsel responded, "[a]s stated before, as responsive materials come
into our possession, we will supplement, as necessary, with reasonable promptness. I will review
II
Ex. D, Enlail corlespondence between counsel, arp.4.
t2
Ex. E, Defendants' Iìesponses to Plaintiff--s Request l]or Plivilege log.
l.ì
Ex. E., Defendants' Responses to Plaintifl-s
Rcquest I-or Privilege log. at p. 3
IJ
Ex. D, Email correspondence between counsel. at p. 3.
l)
Ex. D, Email correspondence between counsel, at p. 3.
PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE WITH DISCOVEII.Y
OBLIGATIONS - PAGE 4
DAL 79929595v1
the witliheld materials in light of your concerÍìs set out below and determine whether an
arnended privilege log will be provided."l6
10. Given Defendants' ambiguous response legarding their promised
supplernentation, NDG sought clarification:
Do I correctly understand your email below to state that Defendants currently
have no intention to supplement but may in the future if "responsive materials
come into fyour] possession?" Such a position would be a material change fi'om
your commitments in your April 3, 2017 emall on which, at your request, we
relied in holding off on filing a motion to compel.tT
11. Defendants'counsel responded, "[n]o. I am working with my clients to locate
and gather responsive information. I will supplernent when I have the necessary information to
'
00 so. "18
12. On June 8,2017, Defendants still had not made any supplementation and NDG
followed up yet again:
Please let me know where Defendants stand on the various discovery issues. It
has been over two months since we identified the bulk of the issues and we have
yet to receive anytliing substantive. Repeated comrnitments to supplemetrt at
some undefined tirne do not advance the case. To that end, we need to depose
your clients but it doesn't make sense to do so until the current issues have been
resolved. Please let us know wheu we can expect the supplementation.
Sirnilarly, we have not received a response regarding whether Defendants will
amend their privilege log. Please let us know.le
13. On June 12,2017, Defendants' cour'ìsel responded, "l was out of the office most
of last week. I arn going to visit with rny clients on Tuesday or Wednesday. I will have answers
on all issues by the end of this week."20
I6
Ex D, Enlail corlespondence between counsel,a1 p. J.
l1
Ex D, Ënlail correspondence between counsel,at p. ?..
I8
Ex D, Enlail con'espondence between counsel.at p. 2.
I9
Ex D, l-mail corlespondence between counsel,at pp . t-2
2lì
[]v D, Email con'espondence betweerr counsel, at p.t.
PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE WITH DISCOVEIìY
OBLIGATIONS _ PAGE 5
DAL 79929595v1
14. On June 15,2017, Defendants' counsel responded that although he believed
Defendants' privilege log to be adequate, Defendants would amend their privilege log to state
that the email communications withheld were "made to facilitate the rendition of professional
legal services to the client."2l Defendants' counsel again committed to "continue to work on the
other issues you have raised."22
15. On June 18,2017, I)efendants served their First Amended Response to Plaintiff s
Request For Privilege I-og.23 Defendants' Fist Arnended Response to Plaintiff s Request For
Privilege Log states:
Defendants have withheld all email communications between Defendants and
their attorneys Jerry Atherton, Jirnrny Negem, Keith Starr, and Steven Comte on
the basis that such responsive information is protected by attorney-client privilege
1'EX. R. CIV. P. 193.3(a). The communications withheld are "confidential
communications made to facilitate the rendition of professional legal services to
Defendants. TEX. R. EVID. 503(b). The information necessary to determine the
identify of the sender, all recipients, and the date of the email was produced.2a
16. On July 12, 2017, afrer months of unfulfilled promises from Defendants to
supplement, Plaintiff s counsel inforrned Defendants' counsel that Plaintiff intended to file a
motion to compel and asked whether Defendants were opposed.25
17. Rather than finally supplerlenting their production, Defendants' counsel stated,
"Yes we are opposed."26
18. The deadline to assert new claims is Septernber 6,207J, and the deadline lor
PlaintifTto clesignate its experts is October 37,2017.27
t' Ex. D, Email colresponclence betrveen counsel. at p. l.
22 Ex. D, Ernail correspondence betu,een counsel, at p. I
2i
.
Ex. F, Defenclants'Irilst Amcndecl Response to Plaintiff-s Request For Plivilege log.
21 Ex. F, Defendants' Irirst Arne nded Response to PlaintifTs ReqLrestFor Privilege ìog. at p. 3
25 Ex. D, Email correspondence between counscl. at p. I
.
26 Ex. D, Ernail correspondence between cor¡nscl. at p. l.
21 Ex. C, Agreed Scheduling Olcler, at p. l.
PLAINTIFF'S MOTION TO COMPIL DEFENDANTS' COMPLIANCE \ryITH DISCOVERY
OBLIGATIONS - PAGE 6
DAL 79929595v1
19. No depositions have been taken in this case.
20. As of the date of tlie filing of this Motion, Defendants have not supplemented
their production.
III. ARcunrprr¡'rs AND Auruonluas
A. Tun CouRr-Snoulo Corr.rppl DepB¡¡rnNTS To PnonucB A PRrvrr,Eca Loc Tunr
Coupr-rEs Wrln Rur-E 193.3(n).
TexasRuleof Civil Procedure 193.3(b)requires aparTy toproduceaprivilegelogwithin
fifteen (15) days o1'service of a written request that the withholding party identify the
information and material withheld. The privilege log must (1) describe the information or
materials withheld that, without revealing the privileged information itself or otherwise waiving
tlie privilege, enables other parties to assess the applicability of the privilege; and (2) assert a
specific privilege for each item or group of items withheld. Tex. R. CIv. P. 193.3(b). Rule
193.3(b)'s requirements are mandatory (as evidenced by the word "must") and do not allow a
party to unilaterally "opt out" of the requirements.
Defendants' conclusory assertion that all of the documents they withheld are "protected
by attorney-client privilege," at best, satisfies only the second requirement of Rule 193.3(b).
Defendants have, however, wholly failed to "describe the information or materials withheld that,
without revealing the privileged information itself or otherwise waiving the privilege, enables
other parties to assess the applicability of the privilege" as required by Rule 193.3(b)'s first
requirement.
'fo corrply with Rule 193.3(b)'s recluirements, "the description of tire information or
material withheld lnust be specifìc enough that the requesting party can identify each document
withheld and assess the applicability of that privilege." In re Christus Health S.E. Tex.. 167
PLAINTIFF'S MOTION TO COMPI]L DEFENDANTS' COMPLIANCE WITH DISCOVERY
OBLIGATIONS - PAGE 7
DAL 79929595v1
S.W.3d 596, 599 (Tex. App.-Beaurnont 2005, orig. proceeding) (ciring In re Maher, 143
S.W.3d 907, 913 (Tex. App.-Fort Worth 2004, orig. proceeding). In re Maher addressed the
most basic, minirnum requirements of Rule 193.3(b):
the privilege log RPI ultimately filed pursuant to the trial court's order does not
begin to meet the requirellents of Rule 193.3. The log states, for example,
"internal cornputer records, claim activity logs and file notes as work product
made in anticipation of litigation with an anticipation of litigation date of .Tuly 9,
2001" as an item withheld. RPI's other four claims of privilege in its log, which
are asserted to withhold all of the documents requested in all of Relator's twenty-
six requests for production, ale equally broad and nonspecific. llitltout any
indication, at tlte very leost, of tlre autltor and tlte date tlte records, logs, and
notes were creoted, tlte privilege log does not ullow Relutor or tlte trial court to
r¡.ç^ç¿ss tlte opplicobility of rhe privilege.
In re Maher, 743 S.W.3d a|914 (eniphasis supplied).
Flere, as in In re Maher, Defendants' privilege log fails to include tlie most basic
information essential to allowing NDG to assess the applicability of the privilege. Defendants
have failed to comply with Rule 193.3(b), and the Coufi should compel them to immediately
produce a full and cornplete privilege log.
B Tnn Counl SHouLD Conrppl DnTBNnnNTS To SupplBruoNT THEIR PRooucrroN AND
Pnooucn B¡-ncrRoir¡rc INFoRMATToN rN THE Fonu NDG Spncrnrno.
NDG served the Requests on February 10, 2017. Defendants served their Responses, in
which tlrey committed to supplement, on Marclt 17,2017-over four months ago. On March 24.
2017, NDG asked when it would receive Defendants' supplernentation and identified
Defendants' failure to procluce electronic information in the form NDG specified. I)efendants
again promised to supplement but refised to say when and committed to produce electronic
information in the form NDG specified. Although NDG followed up with Delendants on May
15,2017. .June 8, 2017. and .ìuly 12.2017, I)efendants have yet to prodr:ce the pronrisecl
supplernentation or produce electronic inl-ormation in the form NDG specifìec1.
PLAINTIFF'S MO'TION TO COMPEL DEFENDANTS' COMPLIANCIì WITI.I DISCOVIìRY
OIìLIGATIONS - PAGE 8
DAL 79929595v1
NDG is simply asking the Court to ordel' Defendants to do what they have already
prornised to do. Although NDG has extended every professional courtesy and waited patiently
for Defendants to fulfill their commitments, months have passed with no progress. NDG has
been prejudiced by the delay. Among other harm, NDG has been unable to depose Defendants'
witnesses-since taking their depositions before Defendants complete their document production
would only result in additional fees, expenses, and inconvenience fi'om having to re-depose the
witnesses after Defendants' production is complete. Similarly, NDG's deadlines to add new
claims and designate its expert witnesses are approaching, and Defendants' refusal to honor their
comntitrnents, coupled with NDG's inability to depose Defendants' witnesses, makes it difficult,
if not irnpossible, for NDG to comply with these deadlines.
More than enough time has passed for Defendants to produce their documents as
promised and to produce electronic information in the form NDG specified. The Court should
compel Defendants to immediately supplement their production as promised and to produce
electronic information in the fonn NDG specified.
IV. PRnvBR
PlaintifT asks the Court to grant its Motion; order Defendants to immediately produce a
privilege log that complies with the requirements of Texas Rule of Civil Procedure 193.3(b) and
order Defendants to inrnediately filly and completely supplement their production in the forn.r
NDG specified in the Requests. Plaintiff asks the Court to award it its reasonable and rìecessary
attomey's fees incurred in preparation and presentation of this Motion. Plaintiff further prays
that the Court grant it all such other and firtlier relief, both general and special, in law ol in
equity, to which it may be justly entitled.
PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE WITH DISCOVERY
OIìLIGATIONS - PAGE 9
DAL 79929595v1
Dated: Júy 21,2017 Respectfully Subrnitted,
/s/ P. Williant Stark
P. V/illiam Stark
State Bar No.24046902
starkb@gtlaw.corn
Amanda R. McKinzie
State Bar No. 24088028
mckinziea@gtlaw.corn
GRBENBERG TRAURIG, LLP
2200 Ross Avenue, Suite 5200
Dallas, Texas 75201
Telephone: (21 4) 665 -3 600
Facsimile: (214) 665 -3601
ATTORNEYS PLAINTIFF EC TYLER
HOUSING PARTNERS, LTD.
PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE WITH DISCOVERY
OBLIGATIONS - PAGE IO
DAL 79929595v1
CERTIFICATE OF CONFERENCE
I hereby certify that counsel f'or Plaintifï conferred with counsel for Defendants
regarding this Motion. Defendants' counsel is opposed to tlie Motion.
/s/ P. Williont SÍark
P. William Stark
CERTIFICATE OF SBRVICE
The undersigned hereby certifies that a true and correct copy of the above and foregoing
document was forwarded to the following attorneys of record via email on this the 21'1 day of
Jttly,2017 .
Jimrny M. Negern Keith W. Starr
Joe M. Worthington Steven W. Comte
Negem & Worthington Starr Schoenbl'un & Comte PLLC
1828 ESE Loop 323, Suite R - 1A I l0 North College Ave., Suite 1700
Tyler, Texas 75101 Tyler'.'fexas 75702
Jimmy@Negernlaw.com keith@sscfirm.com
.loe@Negemlaw.com steven@sscfirm.com
/ç/ P Wi llirtnt,\Írtrk
P. William Stark
PLAINTIF-F'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE WITH DISCOVEIIY
OBLIGATIONS-PAGEII
DAL 79929595v1
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trxhib 1t
PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE WITH DISCOVERY
OBLIGATIONS - PAGE 12
CAUSE NO. 16.2512-B
EC TYLER HOUSING PARI'NERS, LTD. $ IN THE DISTRICT COURT OF
$
Plaintifl $
$
(i SMITH COUNTY
$
TERRY GRAHAM, TREY GRALIAM, ANd $
TERRY GRAHAM INTERESTS, LTD., $
$
l)efendants. $ 1I4Th JUDICIAT, DISl'RìC"f
PLAINTIFF EC TYLBR HOUSING PARTNERS, LTD.'S FIRST SBT OF
REQUESTS FOR PRODUCTION TO DEFENDANTS
TO Defendants Terry Graham Interest, Ltd., Trey Graham, and Terry Graharn, by and
through their counsel of record, Jimrny M. Negern & Joe M. Worthington, 1828 ESE
Loop323,SuiteR-lA,Tyler,Texas T5T0l,andKeithW.StarrandStevenW.Cornte,
Starr Schoenbrun & Comte PLLC, 110 Nofth College Ave., Suite 1700, Tyler, Texas
7s702.
Pursuant to Rule 196 of the Texas Rules of Civil Procedure, PlaintifïEC Tyler Housing
Partners, Ltd. ("NDG") hereby serves its First Set of Requests for Production to Defèndants
Terry Graham Interests, Ltd.,'frey Graharn, and Terry Graham. Defèndants'responses, and all
responsive docr-rments and things, should be produced at the offices ol'NDG's cor-tnsel, Greenberg
Trar"rrigLLP,2200 Ross Avenue, Suite 5200, Dallas, Texas 75201. within thirty (30) days ol'service
of this request.
PLAIN'I'ITTF-'S I'IIISTSEI- OF REQUESTS FOR PRODUCI'ION I'O DT]F-IiNDANTS _ PACE I
DAL 79820093v6
PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE WITH DISCOVERY
OBLIGATIONS - PAGE 13
Dated: February 10, 2017 RespectfLr Ily Subrnitted,
/s/ P. Williant Star
P. William Stark
State Bar No.24046902
starkb(@gtlaw.corn
Arnanda R. McKinzie
State Bar No. 24088028
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OBLIGATIONS - PAGE 33
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OBLIGATIONS - PAGE 34
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DEING a 0.573 acre tract of land, situated in the iames A. llaynie Survey, Abstract No. 457, and the A. H,
Klpp Survcy, Abstract No, 546, Tyler, Smith County, Texas, and being part ofTax Lot 2L-C, N.C.B, 835
from Mrs. Elizal¡eth Ezell Graharn anr1 Estate of Raymond
Terry Graham by Terry Graharn, Jr.,
lndependent Éxecutor to Terry Graham lnterests, Ltd, described as ltem #18, Tract One, , and part of Tax
Lot 3, N.C.B. 836 described as ltem #18, Tract Three ln a Deed recorded in Volume 3336, Page 228 and
of the Land Records of Smith County, Texas, said 0.573 acre tract of land being more completely
described by metes and bounds as follows:
BEGINNING alal/2'' iron rod with plastic cap stamped K.L.K. #4687 set in the Northwest right of way of
State Highway No- 155, (variabìe width right of way), on the Southeast boundary
line of saìd Lot 21-C,
corner of a proposed 5.382 acre tract prepared even date by same;
and being at tlre Southeast
THENCE South 48 degrees 20 minutes feet along said Southeast
41 seconds West, a dist.lnce of 40.00
boundary right ofway ofState
line ofTax Lot 2L-C and said Northrvest Highway No. 155 to a !17" iron
rod with plastic cap stanrped
K.L.K.84687 set
THENCE North 4L degrees 52 minutes 14 seconds West, a distance of 394,48 feet to a 112" iron rod with
plastic cap stampedK.L.K. #4687 set at the beginning of a curve in a counterclockwise
direction;
THENCE along said curve having a delta angle of 07 degrees 44 minutes 30 seconds,
a radius of 360.00
feet, an arc length of 48,64 feet, a chord bearing of North 45 degrees 44 minutes
29 seconds West, and
a chord length of 48.61 feet to a 1/2" ìron rod with plastic cap stampe d K.L.K, #4687 set;
THENCE North 49 degrees 36 minutes 44 seconds West, a distance of 24.89 feet to a 1/2" iron rod r¡rith
plastic cap stâmpedK,L.K. 114687 set at the beginning of a curve in a clockwise direction;
THENCE along said curve having a delta angle of 08 degrees
2L minutes 15 seconds,a radius of 400.00
feet, an arc length of 58.3?, feet, a chord bearing of North 45 degrees 26 minutes 06 seconris West, end
achordlengthof5B.2Tfer:t Ioa1"/?," ironrodwithplasticcapslampedK.L.K.fl46sTset;
THENCE Nor-th 41 degrees 15minutes 28 seconds West, a distance of 98.23 feet to a 1/2" iron rod with
plastic cap stampedK,l-.K. +14687 sct ir¡ the Southeast
right of way of Earl Campl:ell Parkr,vay, (115,C0-
loot wìde riBht of way), also being in the Northwest boundary
line of Tax Lot 3 and at the beginning
of a
curve ir¡ ô counterclockwise direction;
ri¿ht of wav of
Tl{FNCt alon¡¡ s;r:d lout1',cíìst Lar"l Cr:rl¡.rlrcli [,ar-k',vay ancì siricl c.¡¡vr: hirvrng a de!tü tinglt:
of 02 cic¡¡r'cr:s 19 n1irìt.rirs ¿.:ì s(.corì(Jr, ¡r racìius oí 984.33 fect, ar rirc lciir3th ai 40.OO fi:ci. ¿ cliorci
nrir)ulcs 4.[ soconcls Iasi, ari
Sent: Monday, )uly 77,2017 9:47 AM
To: Stark, Bill (Shld-Dal-LT)
Cc: Johnson, Kary (Para-Dal-LT); McPherson, Michele J. (Secy-Dal-LT)
Subject: Re: EC Tyler Housing v. Graham
Sorryforthe delay. lhave been out of the office. Yeswe are opposed
Sent from my iPhone
> On Jul 12, 2OI7 , at 8:50 AM, "starkb@gtlaw.com" wrote:
> Steven,
> We intend to file a motion to compelon the discovery issues. Please advise whether Defendants are opposed.
> P. William Stark
> Shareholder
> Greenberg Traurig, LLP
> 2200 Ross Ave., Suite 5200, Dallas, TX
> 7 52O1.
> Tel 214.665.3735 | Fax
> 2I4.665.5903
> starkb@gtlaw.com |
> www.gtlaw.comchttp://www.gtlaw .com f >
> [Greenberg Traurig]
Preview
Electronically Filed 7/21/2017 9:57 AM Lois Rogers, Smith County District Clerk Reviewed By: Steven Cowan cAtJSE NO. 16-2512-B EC TYLER HOUSING PARTNERS, LTD $ IN THE DISTRICT COUR'| OF s i'laintift $ $ $ SMITH COUNTY {ì TtrRRY GRAHAM, TREY GRAHAM, ANd $ 'TERRY GRAHAM INTERESTS, LTD., s $ I)efendants $ 1 14th JUDICIAL DISTRICT PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE \ryITH DISCOVERY OBLIGATIONS Plaintiff EC Tyler Housing Partners, l,td. ("Plaintiff.' or "NDG") hles this Motion 'Io Compel Defendants' Compliance With Discovery Obligations ("Motion") and lespectfully show the Court the following: I. Inr.RooucrroN This Motion is necessitated by Defendants Terry Graham, Trey Graharn, and Terry Graham lnterests, Ltd.'s ("collectively, the "f)efendants") month's-long refusal to produce (i) a privilege log in accordance with Texas Rule of Civil Procedure 193.3(b)'s requirements; and (ii) documents Defendants have already conimitted to produce. This is not a discovery squabble over objections or scope of production. Rather, this Motion siniply asks that Defendants fulfill their obligations under Rule 193.3(b) and produce documents they prornised to produce. PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE \ryITH DISCOVERY OI]LIGATIONS - PAGE 1 DAL 79929595v1 II. RnlEvaNlFacrs l. Plaintiff filed this lawsuit on December 15, 2016 and filed its First Amended Petition on February 14,2017 . Plaintifls lawsuit seeks redress for l)efendants' unlawful diversion I of surface water, trespasses, negligence, and nuisances. 2. Defendant Terry Graham lnterests, Ltd. ("TGI") owns real property that is uphill fi'om and abuts real property owned by NDG.2 A substantial portion of NDG's clairrs arise fi'orn the harm NDG suffered as a result of TGI unlawfully and unnaturally diverting surface water from TGI's uphill property onto NDG's downhill property and TGI's failure to install necessary erosion control measures on TGI's uphill propelty.3 3. On February 10, 2017 , NDG served its First Set of Recluests For Production to Defendants ("Requests").4 4. On March 7J,2017, Defendants served their Objections and Responses to Plaintiff s First Requests For Production ("Respouses").s Defendants also produced a voicemail and lrandful of documents, totaling approximately 279 pages of separate documents that had been combined into a single pdf docurnent witliout rnetadata. Additionally, Defendants responded to numerous Requests by cornmitting, "Defendants will supplement."6 5. On March 24, 2017, Plaintifls counsel sent a letter to f)efendants' counsel ("March 24 Leffer"), requesting that Defendants produce a privilege log documenting the materials or information that they withheld.T f'he Marclt 24 LerTer also followed up on PlaintifïEC T'ylel I'lousing Paftners,l-td.'s Filst Amended Petition ("Amended Petition"). Arnended Petition, aI p.2. Anrended Petition, at pp. 3-14. Ëx. A, PlaintiffEC Tyler Ilousing Partners, Ltd.'s First Set of fìequestsFor PlodL¡ction to Defendants Ëx. Il, Defendants Objections and Responses to Plaintiff-sFirst Requests For Prodr-rction. Ex. fl, Defendants Objections and Ilesponses at pp.3,7. lrol Prodr¡ction, to PlaintifTs First Reqr.rests Ex. C, Mal'ch 24,2017 correspondence front Bill Stark to Defèndants' cor,utsel at p. l. PLAINTIFF'S MOTION TO COMPEL DEF[NDANTS' COMPLIANCE WITH DISCOVERY OBLIGATIONS - PAGE 2 DAL 79929595v1 Defendants' commitrnent to supplernent their document production, asking, "[p]lease advise as to when Plaintiff should anticipate receiving Defendants' supplementation."8 The March 24 Letter further observed that, although Plaintiff s Requests specifìcally requested the production of electronic or magnetic data and specified the form in which NDG wanted it produced as required by Texas Rule of Civil Procedure 1 96.4 and Defendants did not object: Defendants' production does not appear to contain documents in their native format or any metadata. Instead, the .pdf fìle appears to be a cornpilation of documents that were improperly and unnecessarily converted from their native format into a .pdf and combined with other documents. Such convefted documents could-and should-have easily been provided in the manner' requested by Plaintiff.e 6. On Aplil 3,2017, Defendants' connsel responded by email, committing, among otlier things 1. We will provide a Privilege Log as requested within the timeframe set out ur the Texas Rules of Civil Procedure. 6. Regarding the intent to supplement. We will supplement our responses as soon as the requested information is available fol supplementation. We will not set an arbitrary deadline for ourselves. The rnain things that would fall into this category are the contracts between tlie parties and photographs. I am working with my clients to obtain the photographs in their native format so that they can be produced in the manner that you requested. 7. With regard to your complaint about the manner of production, we have endeavored to ploduce responsive doculnents in a manner that gets the information to you as quickly as possible. We will supplement our response to produce the requested electronic inf-onnation, subject to any objections that we have raised.lo With respect to Defendants' other discovery cleficiencies, Defendants' counsel requested, "[w]e will gladly cooperate with you, but as yor,r rright expect we have some disagreement on the 'delìciencies' of our response. That being said, I would encourage you to afford us the courtesy 8 Ex. C, March 24,2017 correspondence flonr Bill Stark to Defèndants' counseÌ aIp.2. 9 Ex. C, March 24,2017 correspondence floll Bill Stark to Defèndants'cor-lnsel atpp.2-3. The March 24Lefter also addressed other of Def'endants' discovery defìciencies that are not the subject of this Motion. IO Ex. D, Email correspondence between col¡nsel.at p. 4. PLAINTIT-F'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE WITH DISCOVERY OBLIGATIONS - PAGE 3 DAL 79929595v1 of time to determine whether forthcoming supplemental responses satisfy yollr concerns before you seek courl intervention."ll 7. On April 10,2017, Defendants served their Responses to Plaintiffls Request For Privilege Log." Defendants' Responses to Plaintiffls Request For Privilege Log consisted of a single sentence, stating, "Defendants have withheld all email communications between Defendant Terry Graham and/or Defendant Trey Graham and their attorneys Jerry Athefton, Jimmy Negem, Keith Starr, and Steven Comte on the basis that such responsive information is protected by attorney-client privilege, pursuant to TEx. R. CIv. P. i93.3(a)."13 8. On May 15, 2017-some six weeks after' Defendants' April 3, 2017 enail committing to supplement their production-NDc liad stillnot received any supplementation and followed up with Defendants, again asking when Defendants intended to supplement.la NDG also observed that Defendants' privilege log failed to comply with the requirements of Texas Rule of Civil Procedure 193.3: Generally stating that Defendants have withheld communications with therr attorneys does not enable Plaintiff to "assess the applicability of the privilege" since Plaintiff has no way of determining, among other things, which individuals participated in the communications, when the communications occurred, and what the communications regalded generally. Please advise whether Defendants intend to serve a privilege log in compliance with'IRCP 193.3 or whether a motion will be necessary to cotnpel Defendants' compliance with the Rule.ls 9. Defendants' counsel responded, "[a]s stated before, as responsive materials come into our possession, we will supplement, as necessary, with reasonable promptness. I will review II Ex. D, Enlail corlespondence between counsel, arp.4. t2 Ex. E, Defendants' Iìesponses to Plaintiff--s Request l]or Plivilege log. l.ì Ex. E., Defendants' Responses to Plaintifl-s Rcquest I-or Privilege log. at p. 3 IJ Ex. D, Email correspondence between counsel. at p. 3. l) Ex. D, Email correspondence between counsel, at p. 3. PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE WITH DISCOVEII.Y OBLIGATIONS - PAGE 4 DAL 79929595v1 the witliheld materials in light of your concerÍìs set out below and determine whether an arnended privilege log will be provided."l6 10. Given Defendants' ambiguous response legarding their promised supplernentation, NDG sought clarification: Do I correctly understand your email below to state that Defendants currently have no intention to supplement but may in the future if "responsive materials come into fyour] possession?" Such a position would be a material change fi'om your commitments in your April 3, 2017 emall on which, at your request, we relied in holding off on filing a motion to compel.tT 11. Defendants'counsel responded, "[n]o. I am working with my clients to locate and gather responsive information. I will supplernent when I have the necessary information to ' 00 so. "18 12. On June 8,2017, Defendants still had not made any supplementation and NDG followed up yet again: Please let me know where Defendants stand on the various discovery issues. It has been over two months since we identified the bulk of the issues and we have yet to receive anytliing substantive. Repeated comrnitments to supplemetrt at some undefined tirne do not advance the case. To that end, we need to depose your clients but it doesn't make sense to do so until the current issues have been resolved. Please let us know wheu we can expect the supplementation. Sirnilarly, we have not received a response regarding whether Defendants will amend their privilege log. Please let us know.le 13. On June 12,2017, Defendants' cour'ìsel responded, "l was out of the office most of last week. I arn going to visit with rny clients on Tuesday or Wednesday. I will have answers on all issues by the end of this week."20 I6 Ex D, Enlail corlespondence between counsel,a1 p. J. l1 Ex D, Ënlail correspondence between counsel,at p. ?.. I8 Ex D, Enlail con'espondence between counsel.at p. 2. I9 Ex D, l-mail corlespondence between counsel,at pp . t-2 2lì []v D, Email con'espondence betweerr counsel, at p.t. PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE WITH DISCOVEIìY OBLIGATIONS _ PAGE 5 DAL 79929595v1 14. On June 15,2017, Defendants' counsel responded that although he believed Defendants' privilege log to be adequate, Defendants would amend their privilege log to state that the email communications withheld were "made to facilitate the rendition of professional legal services to the client."2l Defendants' counsel again committed to "continue to work on the other issues you have raised."22 15. On June 18,2017, I)efendants served their First Amended Response to Plaintiff s Request For Privilege I-og.23 Defendants' Fist Arnended Response to Plaintiff s Request For Privilege Log states: Defendants have withheld all email communications between Defendants and their attorneys Jerry Atherton, Jirnrny Negem, Keith Starr, and Steven Comte on the basis that such responsive information is protected by attorney-client privilege 1'EX. R. CIV. P. 193.3(a). The communications withheld are "confidential communications made to facilitate the rendition of professional legal services to Defendants. TEX. R. EVID. 503(b). The information necessary to determine the identify of the sender, all recipients, and the date of the email was produced.2a 16. On July 12, 2017, afrer months of unfulfilled promises from Defendants to supplement, Plaintiff s counsel inforrned Defendants' counsel that Plaintiff intended to file a motion to compel and asked whether Defendants were opposed.25 17. Rather than finally supplerlenting their production, Defendants' counsel stated, "Yes we are opposed."26 18. The deadline to assert new claims is Septernber 6,207J, and the deadline lor PlaintifTto clesignate its experts is October 37,2017.27 t' Ex. D, Email colresponclence betrveen counsel. at p. l. 22 Ex. D, Ernail correspondence betu,een counsel, at p. I 2i . Ex. F, Defenclants'Irilst Amcndecl Response to Plaintiff-s Request For Plivilege log. 21 Ex. F, Defendants' Irirst Arne nded Response to PlaintifTs ReqLrestFor Privilege ìog. at p. 3 25 Ex. D, Email correspondence between counscl. at p. I . 26 Ex. D, Ernail correspondence between cor¡nscl. at p. l. 21 Ex. C, Agreed Scheduling Olcler, at p. l. PLAINTIFF'S MOTION TO COMPIL DEFENDANTS' COMPLIANCE \ryITH DISCOVERY OBLIGATIONS - PAGE 6 DAL 79929595v1 19. No depositions have been taken in this case. 20. As of the date of tlie filing of this Motion, Defendants have not supplemented their production. III. ARcunrprr¡'rs AND Auruonluas A. Tun CouRr-Snoulo Corr.rppl DepB¡¡rnNTS To PnonucB A PRrvrr,Eca Loc Tunr Coupr-rEs Wrln Rur-E 193.3(n). TexasRuleof Civil Procedure 193.3(b)requires aparTy toproduceaprivilegelogwithin fifteen (15) days o1'service of a written request that the withholding party identify the information and material withheld. The privilege log must (1) describe the information or materials withheld that, without revealing the privileged information itself or otherwise waiving tlie privilege, enables other parties to assess the applicability of the privilege; and (2) assert a specific privilege for each item or group of items withheld. Tex. R. CIv. P. 193.3(b). Rule 193.3(b)'s requirements are mandatory (as evidenced by the word "must") and do not allow a party to unilaterally "opt out" of the requirements. Defendants' conclusory assertion that all of the documents they withheld are "protected by attorney-client privilege," at best, satisfies only the second requirement of Rule 193.3(b). Defendants have, however, wholly failed to "describe the information or materials withheld that, without revealing the privileged information itself or otherwise waiving the privilege, enables other parties to assess the applicability of the privilege" as required by Rule 193.3(b)'s first requirement. 'fo corrply with Rule 193.3(b)'s recluirements, "the description of tire information or material withheld lnust be specifìc enough that the requesting party can identify each document withheld and assess the applicability of that privilege." In re Christus Health S.E. Tex.. 167 PLAINTIFF'S MOTION TO COMPI]L DEFENDANTS' COMPLIANCE WITH DISCOVERY OBLIGATIONS - PAGE 7 DAL 79929595v1 S.W.3d 596, 599 (Tex. App.-Beaurnont 2005, orig. proceeding) (ciring In re Maher, 143 S.W.3d 907, 913 (Tex. App.-Fort Worth 2004, orig. proceeding). In re Maher addressed the most basic, minirnum requirements of Rule 193.3(b): the privilege log RPI ultimately filed pursuant to the trial court's order does not begin to meet the requirellents of Rule 193.3. The log states, for example, "internal cornputer records, claim activity logs and file notes as work product made in anticipation of litigation with an anticipation of litigation date of .Tuly 9, 2001" as an item withheld. RPI's other four claims of privilege in its log, which are asserted to withhold all of the documents requested in all of Relator's twenty- six requests for production, ale equally broad and nonspecific. llitltout any indication, at tlte very leost, of tlre autltor and tlte date tlte records, logs, and notes were creoted, tlte privilege log does not ullow Relutor or tlte trial court to r¡.ç^ç¿ss tlte opplicobility of rhe privilege. In re Maher, 743 S.W.3d a|914 (eniphasis supplied). Flere, as in In re Maher, Defendants' privilege log fails to include tlie most basic information essential to allowing NDG to assess the applicability of the privilege. Defendants have failed to comply with Rule 193.3(b), and the Coufi should compel them to immediately produce a full and cornplete privilege log. B Tnn Counl SHouLD Conrppl DnTBNnnNTS To SupplBruoNT THEIR PRooucrroN AND Pnooucn B¡-ncrRoir¡rc INFoRMATToN rN THE Fonu NDG Spncrnrno. NDG served the Requests on February 10, 2017. Defendants served their Responses, in which tlrey committed to supplement, on Marclt 17,2017-over four months ago. On March 24. 2017, NDG asked when it would receive Defendants' supplernentation and identified Defendants' failure to procluce electronic information in the form NDG specified. I)efendants again promised to supplement but refised to say when and committed to produce electronic information in the form NDG specified. Although NDG followed up with Delendants on May 15,2017. .June 8, 2017. and .ìuly 12.2017, I)efendants have yet to prodr:ce the pronrisecl supplernentation or produce electronic inl-ormation in the form NDG specifìec1. PLAINTIFF'S MO'TION TO COMPEL DEFENDANTS' COMPLIANCIì WITI.I DISCOVIìRY OIìLIGATIONS - PAGE 8 DAL 79929595v1 NDG is simply asking the Court to ordel' Defendants to do what they have already prornised to do. Although NDG has extended every professional courtesy and waited patiently for Defendants to fulfill their commitments, months have passed with no progress. NDG has been prejudiced by the delay. Among other harm, NDG has been unable to depose Defendants' witnesses-since taking their depositions before Defendants complete their document production would only result in additional fees, expenses, and inconvenience fi'om having to re-depose the witnesses after Defendants' production is complete. Similarly, NDG's deadlines to add new claims and designate its expert witnesses are approaching, and Defendants' refusal to honor their comntitrnents, coupled with NDG's inability to depose Defendants' witnesses, makes it difficult, if not irnpossible, for NDG to comply with these deadlines. More than enough time has passed for Defendants to produce their documents as promised and to produce electronic information in the form NDG specified. The Court should compel Defendants to immediately supplement their production as promised and to produce electronic information in the fonn NDG specified. IV. PRnvBR PlaintifT asks the Court to grant its Motion; order Defendants to immediately produce a privilege log that complies with the requirements of Texas Rule of Civil Procedure 193.3(b) and order Defendants to inrnediately filly and completely supplement their production in the forn.r NDG specified in the Requests. Plaintiff asks the Court to award it its reasonable and rìecessary attomey's fees incurred in preparation and presentation of this Motion. Plaintiff further prays that the Court grant it all such other and firtlier relief, both general and special, in law ol in equity, to which it may be justly entitled. PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE WITH DISCOVERY OIìLIGATIONS - PAGE 9 DAL 79929595v1 Dated: Júy 21,2017 Respectfully Subrnitted, /s/ P. Williant Stark P. V/illiam Stark State Bar No.24046902 starkb@gtlaw.corn Amanda R. McKinzie State Bar No. 24088028 mckinziea@gtlaw.corn GRBENBERG TRAURIG, LLP 2200 Ross Avenue, Suite 5200 Dallas, Texas 75201 Telephone: (21 4) 665 -3 600 Facsimile: (214) 665 -3601 ATTORNEYS PLAINTIFF EC TYLER HOUSING PARTNERS, LTD. PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE WITH DISCOVERY OBLIGATIONS - PAGE IO DAL 79929595v1 CERTIFICATE OF CONFERENCE I hereby certify that counsel f'or Plaintifï conferred with counsel for Defendants regarding this Motion. Defendants' counsel is opposed to tlie Motion. /s/ P. Williont SÍark P. William Stark CERTIFICATE OF SBRVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing document was forwarded to the following attorneys of record via email on this the 21'1 day of Jttly,2017 . Jimrny M. Negern Keith W. Starr Joe M. Worthington Steven W. Comte Negem & Worthington Starr Schoenbl'un & Comte PLLC 1828 ESE Loop 323, Suite R - 1A I l0 North College Ave., Suite 1700 Tyler, Texas 75101 Tyler'.'fexas 75702 Jimmy@Negernlaw.com keith@sscfirm.com .loe@Negemlaw.com steven@sscfirm.com /ç/ P Wi llirtnt,\Írtrk P. William Stark PLAINTIF-F'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE WITH DISCOVEIIY OBLIGATIONS-PAGEII DAL 79929595v1 o trxhib 1t PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE WITH DISCOVERY OBLIGATIONS - PAGE 12 CAUSE NO. 16.2512-B EC TYLER HOUSING PARI'NERS, LTD. $ IN THE DISTRICT COURT OF $ Plaintifl $ $ (i SMITH COUNTY $ TERRY GRAHAM, TREY GRALIAM, ANd $ TERRY GRAHAM INTERESTS, LTD., $ $ l)efendants. $ 1I4Th JUDICIAT, DISl'RìC"f PLAINTIFF EC TYLBR HOUSING PARTNERS, LTD.'S FIRST SBT OF REQUESTS FOR PRODUCTION TO DEFENDANTS TO Defendants Terry Graham Interest, Ltd., Trey Graham, and Terry Graharn, by and through their counsel of record, Jimrny M. Negern & Joe M. Worthington, 1828 ESE Loop323,SuiteR-lA,Tyler,Texas T5T0l,andKeithW.StarrandStevenW.Cornte, Starr Schoenbrun & Comte PLLC, 110 Nofth College Ave., Suite 1700, Tyler, Texas 7s702. Pursuant to Rule 196 of the Texas Rules of Civil Procedure, PlaintifïEC Tyler Housing Partners, Ltd. ("NDG") hereby serves its First Set of Requests for Production to Defèndants Terry Graham Interests, Ltd.,'frey Graharn, and Terry Graham. Defèndants'responses, and all responsive docr-rments and things, should be produced at the offices ol'NDG's cor-tnsel, Greenberg Trar"rrigLLP,2200 Ross Avenue, Suite 5200, Dallas, Texas 75201. within thirty (30) days ol'service of this request. PLAIN'I'ITTF-'S I'IIISTSEI- OF REQUESTS FOR PRODUCI'ION I'O DT]F-IiNDANTS _ PACE I DAL 79820093v6 PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE WITH DISCOVERY OBLIGATIONS - PAGE 13 Dated: February 10, 2017 RespectfLr Ily Subrnitted, /s/ P. Williant Star P. William Stark State Bar No.24046902 starkb(@gtlaw.corn Arnanda R. McKinzie State Bar No. 24088028 ncl( 4-. :::: . .l ' : i..-.-..--r_-'r i-ì tr* ) ¡rôìii! a;:rlNi:to(rc¡o:lr_rr¡rrcrìlLnev ¡n br iñ:* c !.::4, jþar! n¡ri.r¡ YicuIôr oi crÛ llurñ3rí: ,rì<ç i!È r3!xcs s .:ld *¿r ¡ ¡' rr,r tr\r{:< Àri Ji¡l: Þ,r_ sôr: ^9c0iüc|fa !lx(saê uo àrlr5ea .:?crrs 'l e?rik¡L.i.Þrl6 o; Ù:rt,í¡fs :ú8ffiIffi iincl Floi YL'-'Xj lil .) Showing or}a 671? È¡i¡rry ìdar,T@æ 3 SURl¿FtrfrF{(; ?a Graham Commercial Subdivision, Unit 2 O FT.^AÞTfdI¡'IG å trne. (m3Þ8t.7¡8 O MÅFFIS{G 3 Lots - 12,323 Acres Fü {9O3}5Ali/56 agÞÀæ T r, Srniih Couniy Texo s :î! i;(-i.:: :' PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE WITH DISCOVERY OBLIGATIONS - PAGE 33 Ð1j]Ålu"rJ; ¡\ ctl¿lss l ) rir,c t'cll ..4" 1 tì265552v12 PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' COMPLIANCE WITH DISCOVERY OBLIGATIONS - PAGE 34 ("x lt )B tr rt- i,; l:ìJ;' ., . Surveying - ,, ',:, o Mt't¡tping iÌll {il,Çi ffi(}re li u Planr¡inrl i; i- $yyi{ïÌ ,, "r ily7.}Í* 67 \2 Pelll}'1_ Pliyc: 37s6 l".v_lflir,l9_I?1,,ZÞ?9!..:,991s8.1r79-q0,:_?_01,,,,,,,,,,,,,,,,:!81 40' Access Ëascmetrt DEING a 0.573 acre tract of land, situated in the iames A. llaynie Survey, Abstract No. 457, and the A. H, Klpp Survcy, Abstract No, 546, Tyler, Smith County, Texas, and being part ofTax Lot 2L-C, N.C.B, 835 from Mrs. Elizal¡eth Ezell Graharn anr1 Estate of Raymond Terry Graham by Terry Graharn, Jr., lndependent Éxecutor to Terry Graham lnterests, Ltd, described as ltem #18, Tract One, , and part of Tax Lot 3, N.C.B. 836 described as ltem #18, Tract Three ln a Deed recorded in Volume 3336, Page 228 and of the Land Records of Smith County, Texas, said 0.573 acre tract of land being more completely described by metes and bounds as follows: BEGINNING alal/2'' iron rod with plastic cap stamped K.L.K. #4687 set in the Northwest right of way of State Highway No- 155, (variabìe width right of way), on the Southeast boundary line of saìd Lot 21-C, corner of a proposed 5.382 acre tract prepared even date by same; and being at tlre Southeast THENCE South 48 degrees 20 minutes feet along said Southeast 41 seconds West, a dist.lnce of 40.00 boundary right ofway ofState line ofTax Lot 2L-C and said Northrvest Highway No. 155 to a !17" iron rod with plastic cap stanrped K.L.K.84687 set THENCE North 4L degrees 52 minutes 14 seconds West, a distance of 394,48 feet to a 112" iron rod with plastic cap stampedK.L.K. #4687 set at the beginning of a curve in a counterclockwise direction; THENCE along said curve having a delta angle of 07 degrees 44 minutes 30 seconds, a radius of 360.00 feet, an arc length of 48,64 feet, a chord bearing of North 45 degrees 44 minutes 29 seconds West, and a chord length of 48.61 feet to a 1/2" ìron rod with plastic cap stampe d K.L.K, #4687 set; THENCE North 49 degrees 36 minutes 44 seconds West, a distance of 24.89 feet to a 1/2" iron rod r¡rith plastic cap stâmpedK,L.K. 114687 set at the beginning of a curve in a clockwise direction; THENCE along said curve having a delta angle of 08 degrees 2L minutes 15 seconds,a radius of 400.00 feet, an arc length of 58.3?, feet, a chord bearing of North 45 degrees 26 minutes 06 seconris West, end achordlengthof5B.2Tfer:t Ioa1"/?," ironrodwithplasticcapslampedK.L.K.fl46sTset; THENCE Nor-th 41 degrees 15minutes 28 seconds West, a distance of 98.23 feet to a 1/2" iron rod with plastic cap stampedK,l-.K. +14687 sct ir¡ the Southeast right of way of Earl Campl:ell Parkr,vay, (115,C0- loot wìde riBht of way), also being in the Northwest boundary line of Tax Lot 3 and at the beginning of a curve ir¡ ô counterclockwise direction; ri¿ht of wav of Tl{FNCt alon¡¡ s;r:d lout1',cíìst Lar"l Cr:rl¡.rlrcli [,ar-k',vay ancì siricl c.¡¡vr: hirvrng a de!tü tinglt: of 02 cic¡¡r'cr:s 19 n1irìt.rirs ¿.:ì s(.corì(Jr, ¡r racìius oí 984.33 fect, ar rirc lciir3th ai 40.OO fi:ci. ¿ cliorci nrir)ulcs 4.[ soconcls Iasi, ari Sent: Monday, )uly 77,2017 9:47 AM To: Stark, Bill (Shld-Dal-LT) Cc: Johnson, Kary (Para-Dal-LT); McPherson, Michele J. (Secy-Dal-LT) Subject: Re: EC Tyler Housing v. Graham Sorryforthe delay. lhave been out of the office. Yeswe are opposed Sent from my iPhone > On Jul 12, 2OI7 , at 8:50 AM, "starkb@gtlaw.com" wrote: > Steven, > We intend to file a motion to compelon the discovery issues. Please advise whether Defendants are opposed. > P. William Stark > Shareholder > Greenberg Traurig, LLP > 2200 Ross Ave., Suite 5200, Dallas, TX > 7 52O1. > Tel 214.665.3735 | Fax > 2I4.665.5903 > starkb@gtlaw.com | > www.gtlaw.comchttp://www.gtlaw .com f > > [Greenberg Traurig]