Motion for Sanctions in Allen Soape, Et Al vs. DSW Homes, LLC, Et Al| Trellis.Law

On December 15, 2017 a Motion-Secondary was filed involving a dispute between Dsw Homes, Llc, Soape, Allen, Soape, Joy, and Barfield Home Inspections, Dsw Homes, Llc, for Injury/Damage - Other in the District Court of Galveston County.

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Filed: 9/27/2019 12:36 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 37192863
By: Lisa Kelly
9/27/2019 2:03 PM

CAUSE NO. 17-CV-1506

ALLEN and JOY SOAPE § IN THE DISTRICT COURT OF
Plaintiffs §
§
vs. §
§ GALVESTON COUNTY, TEXAS
DSW HOMES, LLC, §
AAK ELECTRIC, LLC, and §
DALE’S WATER WELLS, LLC §
Defendants § 405th JUDICIAL DISTRICT
______________________________________________________________________________

PLAINTIFFS ALLEN AND JOY SOAPE’S RESPONSE TO DSW HOMES, LLC’S
MOTION FOR SPOLIATION SANCTIONS CONCERNING ELECTRONIC DIARY
AND HANDWRITTEN NOTEBOOK
______________________________________________________________________________

TO THE HONORABLE JUDGE JARED ROBINSON:

Plaintiffs Allen and Joy Soape file this Response to DSW Homes, LLC’s (“DSW”) Motion

for Spoliation Sanctions Concerning Electronic Diary and Handwritten Notebook (“Motion”) and

in support thereof would respectfully show the following:

I. INTRODUCTION

On August 14, 2019, Defendant DSW filed its Motion for Spoliation Sanctions Concerning

Electronic Diary and Handwritten Notebook. In their Motion, DSW seeks to prevent Plaintiffs

from offering into evidence (1) Allen Soape’s Handwritten Journal 1 and (2) the Typewritten

Journal. Because Plaintiffs do not seek to admit the Typewritten Journal into evidence, the issue

is moot. Therefore, this Response will focus on issues related to the Handwritten Journal; however,

for Court’s benefit, Plaintiffs will still briefly address those issues in Section II(C) below.

Importantly, DSW seeks to exclude the Handwritten Journal because Plaintiffs cannnot locate the

front or back cover of the spiral notebook in which Allen Soape recorded his notes. There is no

1Allen Soape’s Handwritten Journal is attached hereto as Exhibit 1 to his Third Unsworn Declaration, which is
attached as Exhibit A to this Response.
allegation (nor can there be) that any of the contents of Mr. Soape’s Handwritten Journal have been

altered, lost, or destroyed in any way. However, DSW has failed to even attempt to meet its burden

to establish that the front and back covers of a spiral notebook are actual evidence of any fact that

is “of consequence to the determination of the action” in this case.2

Following the Texas Supreme Court’s decision in Brookshire Brothers, the law on

spoliation has been significantly restricted. In its Motion, DSW fails to provide the Court the full

legal standard under which a spoliation analysis must occur. Spoliation sanctions are only

appropriate if (1) a party intentionally spoliates evidence “with the subjective purpose of concealing

or destroying discoverable evidence”3 or (2) in the “rare occasion” when a party negligently

spoliates evidence, but only if it irreparably prevents the nonspoliating party from having any

meaningful opportunity to present a claim or defense.”4

Here, DSW “bears the burden”5 as party alleging spoliation; however, it has failed to

establish that Plaintiffs Allen and Joy Soape intentionally spoliated anything that is actual evidence

of consequence to the determination of this matter, much less did so “with the subjective purpose

of concealing or destroying discoverable evidence.” Moreover, DSW fails to establish that it has

been irreparably prevented from presenting its defense. As such, DSW’s Motion should be denied,

and DSW should be precluded from offering any evidence of any alleged spoliation into evidence

at the trial on the merits.

2Tex. R. Evid. 401.
3Brookshire Brothers, Ltd. V. Aldridge, 438 S.W. 3d 9, 24 (Tex 2014).
4 Id. at 25.
5 Id. at 20.
II. ARGUMENTS AND AUTHORITIES

A. Spoliation Sanctions Require Proof of Intentional Spoliation With the Intent
to Conceal or Destroy Evidence or a Lack of Any Meaningful Opportunity to
Present a Defense.

A spoliation analysis involves a two-step judicial process: (1) the trial court must determine,

as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the court

must assess an appropriate remedy. 6 To conclude that a party spoliated evidence, the court must

find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party

“intentionally spoliate[d] evidence . . . with the subjective purpose of concealing or destroying

discoverable evidence”7 or negligently breached that duty, but only if the nonspoliating party has

been “irreparably prevent[ed] . . . from having any meaningful opportunity to present a claim or

defense.”8

The Texas Supreme Court has explained that, “with a narrow exception . . . a party must

intentionally spoliate evidence in order for a spoliation instruction to constitute an appropriate

remedy.”9 “By ‘intentional’ spoliation, often referenced as ‘bad faith’ or ‘willful’ spoliation, we

mean that the party acted with the subjective purpose of concealing or destroying discoverable

evidence.”10 With respect to “negligent” spoliation, the Court went on to explain that it was only

applicable “on rare occasions” in which a party's negligent breach of its duty to reasonably preserve

evidence “irreparably prevents the nonspoliating party from having any meaningful

opportunity to present a claim or defense.”11

6Brookshire Brothers, Ltd. V. Aldridge, 438 S.W. 3d 9, 14 (Tex 2014).
7Id. at 23-24.
8 Id. at 25.
9 Id. at 23.
10 Id. at 24.
11 Id. at 25.
B. DSW Fails to Meet its Burden Regarding the Handwritten Journal.

Importantly, there is no allegation (nor can there be) that any of the contents of Mr. Soape’s

Handwritten Journal have been altered, lost, or destroyed in any way. DSW’s Motion relates to the

front and back covers of a spiral notebook in which Allen Soape recorded his Handwritten Journal.

DSW has failed to even attempt to meet its burden to establish that the front and back covers of a

spiral notebook are actual evidence of any fact that is “of consequence to the determination of the

action” in this case.12

A timeline of events related to the Handwritten Journal will be helpful in the Court’s

analysis of this issue.

• Plaintiffs first produced a copy of the Typewritten Journal to DSW on April 16, 2018.

• Thereafter, Allen Soape gave his deposition on September 19, 2018 in which he described
that spiral notebook and handwritten journal. 13

• DSW then subsequently produced a copy of the Completion Log for the Soape home,
outing all the applicable tasks, completion dates, and subcontractors on December 21,
2018.14

• Shortly after his deposition, counsel for Allen Soape requested that he send them his
Handwritten Journal for production in the litigation. Because the spiral notebook contained
notes regarding other matters unrelated to the construction of his home or the litigation and
for ease of mailing, Allen Soape tore the pages out and mailed them to his attorneys in
Houston not knowing that anyone wanted (or would want to) examine the front and back
covers.15

• The Handwritten Journal was bates-labeled and produced on or about November 29,
2018.16

• It was not until almost eight months later (in July of 2019) that DSW requested that
Plaintiffs produce the front and back covers of the spiral notebook. After DSW made that

12Tex. R. Evid. 401.
13 See Third Unsworn Declaration of Allen Soape at paragraph 3, attached hereto as Exhibit A.
14 See DSW’s Completion Log, attached hereto as Exhibit B.
15 See Third Unsworn Declaration of Allen Soape at paragraph 4, attached hereto as Exhibit A.
16Id. at paragraph 5.
request Plaintiffs diligently searched their home in an attempt to locate it but were not able
to do so.17

• Plaintiffs did not intentionally discard or destroy the front and back covers. Moreover,
Plaintiffs had no knowledge that any party would consider them to be relevant to this matter
in any way. The tearing of the pages out of the spiral notebook to be mailed and the
accidental loss of the covers was not intentional and certainly not done to conceal or
destroying discoverable evidence.18

As an initial matter, DSW has not shown that the front and back covers of the spiral

notebook are actual evidence of any fact that is “of consequence to the determination of the action”

in this case as required by Texas Rule of Evidence 401. DSW makes one blanket statement that

the purpose of requesting the covers was to “trace the notebook’s manufacture” in an effort to

determine when Mr. Soape “penned the notes.” 19 Presumably what DSW is trying to say is that

they wanted to make an effort to establish the date of manufacturing of that particular spiral

notebook.

First, even the ability to do so is completely speculative. DSW makes no effort to

demonstrate to the Court that this is even possible to determine the date of manufacture from a

front or back cover. DSW has not provided any affidavit from anyone establishing what they

would have done, could have done, etc. In fact, the only presumable theory is that by using a UPC

code printed on the cover (if one even existed), they would be able to determine the date of

manufacture of the spiral notebook. However, this is a spiral notebook, not a tire or food product

that are required to have separate identification of the date of manufacture printed on them.

Additionally, publicly available information regarding standardized UPC codes indicated that

there is no mechanism for establishing the date of manufacture from a UPC Code.20 Therefore,

17See Third Unsworn Declaration of Allen Soape at paragraph 6, attached hereto as Exhibit A.
18Id. at paragraph 7.
19 See DSW’s Motion at 4.
20 See GS1 Databar Info, attached hereto as Exhibit C.
there has been no showing whatsoever that the front and back covers of a spiral notebook are actual

evidence of any fact that is “of consequence to the determination of the action,” and DSW’s single

statement to the contrary is simply unsubstantiated speculation.

Moreover, DSW cannot establish that the accidental loss of the front and back covers of a

spiral notebook irreparably prevents it from presenting its defense. There are numerous methods

by which DSW can establish who did what and when during the construction of the Soape’s home.

Indeed, it is a general contractor’s primary job function to schedule and coordinate the various

trades in the building of a home. DSW has the testimony of their own employees, most notably

Mason Grillo the superintendent in charge of constructing the Soape’s home who also testified that

he observed Mr. Soape taking notes in his Handwritten Journal throughout the construction

process.21 DSW has the Complete Log that identifies various tasks, subcontractors, and the dates

on which they were completed. 22 In fact, this Completion log confirms the matters described by

Mr. Soape in his Handwritten Journal.

Indeed, there other mechanisms by which DSW can confirm the accuracy of the contents

of the Handwritten Journal. DSW has produced phone records of Mason Grillo that confirm the

phone calls described in the Handwritten Journal. 23 Plaintiffs have produced their own phone

records, photographs, and various license plate information that confirm the contents of the

Handwritten Journal.24 DSW has not and cannot demonstrate that the accidental loss of the front

and back covers of a spiral notebook present the extremely “rare occasion” in which “irreparably

prevents [DSW] from having any meaningful opportunity to present a claim or defense” as

21See Grillo Deposition at 39:19-40:12, attached hereto as Exhibit E,
22See DSW’s Completion Log, attached hereto as Exhibit B.
23 See Grillo phone records, attached hereto as Exhibit F.
24 See Plaintiffs’ produced phone records, photos and license plate information, attached hereto as Exhibit G.
required by the Texas Supreme Court. 25 Moreover, DSW has not and cannot demonstrate that the

Soapes took any action “with the subjective purpose of concealing or destroying discoverable

evidence.” As a result, DSW’s Motion should be denied.

C. DSW Fails to Meet its Burden Regarding the Typewritten Journal Because
Plaintiffs Discarded the Original Computer Upon Which the Typewritten
Journal Was Typed Prior to Being Electrocuted.

As an initial matter, DSW seeks to prevent Plaintiffs from admitting into evidence the

Typewritten Journal. Plaintiffs do not seek to do so; therefore, the issue is moot. However, for

Court’s benefit, Plaintiffs will still briefly address these issues below. In sum, Plaintiffs discarded

the laptop upon which the Typewritten Journal was originally prepared prior to Mr. Soape being

electrocuted. Therefore, Plaintiffs did not breach any duty to preserve evidence regarding the

original laptop.

The dispute regarding the Typewritten Journal relates to the loss of meta-data associated

with that file. DSW argues that if Plaintiffs could produce the original computer upon which the

Typewritten Journal was originally typed up on, then the metadata could be retrieved. 26 However,

there is some confusion regarding the computer upon which Mr. Soape typed up the Typewritten

Journal, that candidly originated at Mr. Soape’s deposition.

At Mr. Soape’s deposition on September 19, 2018, he described the process of how he went

about typing up his handwritten journal into the laptop that he owned at the time. 27 During his

deposition, he testified that the laptop that he owned at that time was a Lenovo laptop that he

purchased from Best Buy. 28 However, he was mistaken.29 He has gone back and reviewed both

25Brookshire Brothers, Ltd. V. Aldridge, 438 S.W. 3d 9, 25 (Tex 2014).
26See Affidavit of Dr. Manes at p. 5, attached to DSW’s Motion as Exhibit B.
27 See Soape Deposition Vol. 3 at 96:11-97:4, attached hereto as Exhibit D, and Third Unsworn Declaration of
Allen Soape at paragraphs 10-11, attached hereto as Exhibit A.
28 See Soape Deposition Vol. 3 at 165:22-166:21, attached hereto as Exhibit D, Third Unsworn Declaration of Allen
Soape at paragraph 9, attached hereto as Exhibit A.
29 See Third Unsworn Declaration of Allen Soape at paragraph 9, attached hereto as Exhibit A.
his handwritten journal and his Amazon and Best Buy purchase histories, which make clear that he

originally prepared it on a Hewlett Packard laptop, not the Lenovo laptop that he purchased later. 30

In fact, the September 10, 2015 handwritten journal entry makes clear that he was typing

up his handwritten journal on the Hewlett Packard computer that he owned.31 The battery of his

Hewlett Packard computer broke, and he ordered another one from Amazon.32 On September 10,

2015, he noted in his journal that the replacement battery for his Hewlett Packard laptop arrived by

mail.33 In addition, his Best Buy purchase history establishes that the Lenovo computer he thought

he was using at the time was not purchased until October 13, 2015, after completion of construction

of the home.34 Therefore, he was mistaken in his testimony regarding having initially typed up the

handwritten journal on the Lenovo laptop. 35 He originally typed itup on the Hewlett Packard

laptop he owned at the time because he did not own the Lenovo laptop until after the house was

completed.36

After purchasing the Lenovo laptop, he then transferred all the files over from the Hewlett

Packard laptop.37 It is likely during this file transfer the metadata for the original file was lost. 38

He in no way saved any version of his typewritten journal in any manner that intentionally removed

any meta-data from the file.39 After transferring the files from his Hewlett Packard computer to

30See Third Unsworn Declaration of Allen Soape at paragraphs 9-11, attached hereto as Exhibit A.
31Id. at 10.
32 Id.
33 Id.; See also p.19 of Allen Soape’s Handwritten Journal attached as Exhibit 1 of his Third Unsworn Declaration,
attached hereto as Exhibit A.
34 See Third Unsworn Declaration of Allen Soape at paragraph 11, attached hereto as Exhibit A.
35 Id. at 9.
36 Id. at 11.
37 Id. at 12.
38 Importantly, DSW states in its Motion that “Dr. Manes testifies that the erasure of the meta-data from the diary was
done intentionally.” See DSW’s Motion at 7. However, this is a false statement. Dr. Manes actually testified that
intentionally saving a file without meta-data is “one explanation.”However, an equally plausible explanation is that
the meta-data was originally lost in the file transfer from the HP laptop to the Lenovo laptop and was not intentionally
done at all.
39 See Third Unsworn Declaration of Allen Soape at paragraph 13, attached hereto as Exhibit A.
the Lenovo, he discarded the Hewlett Packard computer. 40 He did not own that computer on

September 21, 2016, the day he was electrocuted.41 He could not have anticipated that he would

be electrocuted almost a year later and that the original computer upon which he typed up the

handwritten journal would be important in the future.42 Therefore, Plaintiffs’ duty to preserve the

original laptop upon which the Typewritten Journal was originally prepared (as hypothesized by

Dr. Manes as a potential source to recover the meta-data) was not yet triggered when the HP laptop

was discarded.

The transfer of the files and accidental loss of the meta-data and the discarding of the

Hewlett Packard computer prior to Mr. Soape being electrocuted was not intentional and certainly

not done to conceal or destroying discoverable evidence.43 As discussed above, DSW cannot

establish that the accidental loss of the meta-data prevents it from presenting its defense. There are

numerous methods by which DSW can establish who did what and when during the construction

of the Soape’s home. Indeed, it is a general contractor’s primary job function to schedule and

coordinate the various trades in the building of a home. DSW has the testimony of their own

employees, most notably Mason Grillo the superintendent in charge of constructing the Soape’s

home.44 DSW has the Complete Log that identifies various tasks, subcontractors, and the dates on

which they were completed. 45 DSW has not and cannot demonstrate that the accidental loss of the

front and back covers of a spiral notebook present the extremely “rare occasion” in which

“irreparably prevents [DSW] from having any meaningful opportunity to present a claim or

defense” as required by the Texas Supreme Court.46 Moreover, DSW has not and cannot

40See Third Unsworn Declaration of Allen Soape at paragraph 14, attached hereto as Exhibit A.
41Id.
42 Id. at 15.
43 Id. at 16.
44 See Grillo Deposition, attached hereto as Exhibit E,
45 See DSW’s Completion Log, attached hereto as Exhibit B.
46 Brookshire Brothers, Ltd. V. Aldridge, 438 S.W. 3d 9, 25 (Tex 2014).
demonstrate that the Soapes took any action “with the subjective purpose of concealing or

destroying discoverable evidence.” As a result, DSW’s Motion should be denied.

D. DSW is Precluded From Offering Any Evidence Regarding Alleged Spoliation
at Trial.

Regardless of whether the Court grants or denies DSW’s Motion, DSW should be precluded

from offering any evidence of any alleged spoliation into evidence at the trial on the merits. The

Texas Supreme Court in Brookshire Brothers held that imposing a remedy for a spoliation finding

“affects the propriety of admitting evidence regarding spoliation at trial.” 47 The Court ruled that

“[t]he evidence considered by the trial court in making these findings, however, often has no

bearing on the facts that are ‘of consequence to the determination of the action’ from the jury's

perspective..”48 To allow such evidence would only serve to “highlight the spoliating party’s

breach and culpability” and “has no bearing on the issues to be resolved by the jury.” 49 As such,

the Texas Supreme Court has ruled that any evidence relating to allegations of spoliation should be

excluded. Therefore, regardless of the Court’s ruling on DSW’s Motion, DSW should be precluded

from offering any evidence of any alleged spoliation into evidence.

III. CONCLUSION AND PRAYER

For the foregoing reasons, Plaintiffs pray that the Court deny DSW’s Motion and grant to

Plaintiffs all other relief to which they are entitled.

47Brookshire Brothers, Ltd. V. Aldridge, 438 S.W. 3d 9, 26 (Tex 2014)(quoting Tex. R. Evid. 401).
48Id. at 26.
49 Id. at 26-27.
Respectfully submitted,

WALSTON BOWLIN, LLP

/S/ JOSHUA N. BOWLIN .
JOSHUA N. BOWLIN
josh@walstonbowlin.com
State Bar No. 24036253
CLIFFORD H. WALSTON
cliff@walstonbowlin.com
State Bar No. 24037666
4299 San Felipe, Suite 300
Houston, TX 77027
(713) 300-8700
(713) 583-5020 Fax
ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE
I hereby certify that the foregoing document shall be served in accordance with Rule 21a
on all parties who have answered or have been served with process on September 27, 2019.

/s/ Joshua N. Bowlin .
Joshua N. Bowlin
Exhibit
A
Exhibit
1 39 SOAPE002455
SOAPE002456
SOAPE002457
SOAPE002458
SOAPE002459
SOAPE002460
SOAPE002461
SOAPE002462
SOAPE002463
SOAPE002464
SOAPE002465
SOAPE002466
SOAPE002467
SOAPE002468
SOAPE002469
SOAPE002470
SOAPE002471
SOAPE002472
SOAPE002473
SOAPE002474
SOAPE002475
SOAPE002476
SOAPE002477
SOAPE002478
SOAPE002479
Exhibit
2
111111111111111111111111111111111111111111111111111111111111
0000134887294274641812073791104058

*********** START RECEIPT***********

WELCOME TO BEST BUY #867
4505 S MEDFORD DR
LUFKIN, TX 75901
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Val #:000134-88 7294 -2 74641-812073-791104- 058

0867 056 4171 10 /13/1 5 11 :2 7

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LENOVO G50 - 80LOOOH2US I3/4GB
20 . 00 SALE DISCOUNT
0 . 00 GKSVCS BNDL EX
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WEBROOT IS BOX 2014
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SERIAL# WBROOSA14 0098728171
Sales Tax o. 00
58 71816 WEBROOT WIS 0.00 N*
WEBROOT IS 3 USER 6 MONTH
27 . 00 GKSVCS BNDL EX
Sales Tax O. 00

SUBTOTAL 32 9.99
Sales Tax 27.22

TOTAL 357.21

**********1929 Swiped USO$ 357.21
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JOY A SOAPE
APPROVAL 33 1966
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SOFTWARE
You purchased the following:
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------=--=-==-=======================

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as coupons, (magazines books
and newspapers), (ISBN), and sl
music (ISMN).

r sBil 978-0 -O7 -21257r-7
90000>

liltl ilililt|
I oo7 2 1257 ffil
In the United States, price code scanners and point-of-sale/inventory
systems are typically capable of reading both UPC-A and EAN-
13 barcodes.

EAN.8
EAN-S is a GS I barcode for use on small items when a full EAN- 13 barcode label would be too large to fit. It consists of eight digits
four on the left side and fou

Case Info

Judge

Robinson, Jared Track Judge’s New Case

Case No.

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Document Filed Date

September 27, 2019

Case Filing Date

December 15, 2017

County

Parties

Alford, Nathaniel J., III Attorney for the Plaintiff
Arnold, Kurt B. Attorney for the Plaintiff
Barfield Home Inspections Third Party Defendant
DSW Homes, LLC Defendant
DSW Homes, LLC Third Party Plaintiff
Findley, J. Kyle Attorney for the Plaintiff
Fostel, M. Clay Attorney for the Plaintiff
Pappas, George P. Attorneys for Defendants
Pappas, George P. Attorney for the Defendant
Soape, Allen Plaintiff
Soape, Joy Plaintiff
Walston, Clifford H. Attorney for the Plaintiff
Joshua Bowlin Attorneys for Plaintiffs
Jennifer Cully Attorneys for Defendants
Michael Fostel Attorney
Marshall Rosenberg Attorneys for Defendants
Kevin Tompkins Attorney
Linda White Attorneys for Plaintiffs
Robbie Moehlmann Attorney
Michael Prather Attorney
Natasha Bahri Attorney
Jonathan Findley Attorneys for Plaintiffs
Travis Armstrong Attorneys for Defendants
Ashley Menage Attorneys for Defendants
Lara Price Attorney

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Motion-Secondary: Allen Soape, Et Al vs. DSW Homes, LLC, Et Al

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