Preview
Filed: 9/12/2018 7:39 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 27473866
By: Lisa Kelly
9/13/2018 7:57 AM
NO. 17-CV-1242
BLANCHARD REFINING COMPANY § IN THE DISTRICT COURT
LLC and MARATHON PETROLEUM §
COMPANY LP §
§ 212TH DISTRICT COURT
V. §
§
INDUSTRIAL SPECIALISTS, LLC § GALVESTON COUNTY, TEXAS
DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFF’S
SECOND MOTION TO COMPEL DISCOVERY AND MOTION TO
ENFORCE DISCOVERY ORDER
TO THE HONORABLE DISTRICT JUDGE GRADY:
Defendant Industrial Specialists, LLC (“ISI”) files this Response in Opposition to
Plaintiffs’ Second Motion to Compel Discovery and Motion to Enforce Discovery Order filed by
Plaintiffs Blanchard Refining Company LLC and Marathon Petroleum Company LP
(“Plaintiffs”) on August 10, 2018. For its response, ISI would show the Court as follows:
1. Plaintiffs have sued ISI to recover defense costs and settlement funds that
Plaintiffs paid to settle personal injury claims brought by injured subcontractors against Plaintiffs
(but not against ISI) as the result of a January 11, 2016 fire at the Galveston Bay Refinery
(hereafter referred to as the “Underlying Litigation.”).
2. As this Court is well aware, the Parties this this suit initially litigated the question
of contractual indemnity, believing in good faith this was a question of law for the Court to
decide. While the Parties were litigating this issue, ISI filed a Motion for Protection. In turn,
Plaintiffs filed a Motion to Compel, which the Court granted on March 12, 2018. In part, the
order required the production of documents responsive to Plaintiffs’ Request for Production
within seven days.
DEFENDANT’S RESPONSE TO PLAINTIFFS’ SECOND MOTION TO COMPEL DISCOVERY AND
ENFORCE DISCOVERY ORDERS Page 1
3. On March 19, 2018, ISI produced 3,241 pages of documents responsive to
Plaintiffs’ Requests for Production. The production of documents included the production of
electronic documents. On June 18, 2018 and on July 19, 2018 ISI further supplemented its
document production and to date, has produced over 3,600 pages of documents responsive to
Plaintiffs’ Requests for Production.
4. On June 11, 2018, Plaintiffs’ counsel sent a discovery conference letter requesting
that defendant to supplement its document production, believing that additional e-mails and
electronic documents may exist.
5. By letter dated June 18, 2018, ISI agreed to search its electronic emails and
documents to locate and supplement those documents responsive to Plaintiffs’ First Request for
Production. See Exhibit A, correspondence from J. Montejano to J. Montgomery dated June 18,
2018. Since that time, counsel for ISI has diligently sought to locate and provide responsive
documents but has run into unanticipated delays and challenges in accomplishing that task.
6. ISI has been working on this document supplementation issue since June. This
has been a massive undertaking, which has taken much longer than expected. By way of
explanation, Brand/ISI has over 3,000 employees. Specific to the FCCU3 turnaround project,
there were approximately 60-90 ISI employees working on the project at any given time. ISI has
gone back through the project logs and turnaround sign-in sheets to identify the specific ISI
employees involved in the planning and the actual work performed on the GBR turnaround
project.
7. After identifying those individuals, ISI then performed a search to determine
which ISI employees had email accounts during the project at issue. Some of the employees
never had email accounts. And some of the employees that did have email accounts no longer
DEFENDANT’S RESPONSE TO PLAINTIFFS’ SECOND MOTION TO COMPEL DISCOVERY AND
ENFORCE DISCOVERY ORDERS Page 2
work for ISI. Further given storage limitations, older email messages were automatically
archived. Accordingly, ISI has had to search data that was backed-up over two and a half years
ago to locate and extract the backed-up email accounts of current and former ISI employees.
8. To aid in this undertaking, ISI hired a third-party data hosting and document
review service at significant expense. Several of the individual email accounts and data sets were
unexpectedly large and contained more than a terabyte of data. The sheer size of the data set
resulted in further unanticipated delays extracting and uploading the data onto a document
review platform. After the data was uploaded, filters were applied, and emails were de-
duplicated to preliminary narrow the set of documents to be reviewed. The document review
platform was finally loaded this past Friday, September 7, 2018, and ISI’s attorneys are now in
the process of reviewing emails for responsiveness, privilege and relevance. There remain
approximately 11,500 emails and documents containing terabytes electronic documents in that
must be reviewed. Many emails will ultimately relate to other jobs and projects outside this
litigation and thus, will not be responsive to the production requests and outside the scope of
discovery.
9. Throughout this process, ISI’s attorneys have attempted to keep Plaintiffs’
counsel apprised of the significant difficulties in complying with Plaintiffs’ supplementation
request. By way of two letters and a telephonic conference, counsel for defendant has been
candid and forthright about the monumental undertaking, the unanticipated delays and the
expense involved in making a good faith effort to comply with its discovery obligations.
10. On August 10, 2018, the undersigned spoke with Plaintiff’s counsel and advised
of the unexpected delays encountered and the efforts being made to supplement Plaintiffs’
discovery requests. On September 10, 2018, the undersigned sent a letter to Plaintiff’s counsel
DEFENDANT’S RESPONSE TO PLAINTIFFS’ SECOND MOTION TO COMPEL DISCOVERY AND
ENFORCE DISCOVERY ORDERS Page 3
further updating on efforts to supplement emails and electronic documents. See Exhibit B,
correspondence from J. Montejano to J. Montgomery dated September 10, 2018.
11. This is not, as Plaintiffs contend, a matter of stonewalling. While Plaintiffs are
well aware that the production of these documents is forthcoming as soon as they can be
reviewed for relevance and privilege, Plaintiffs have elected to proceed with their Motion to
Compel and to seek sanctions form this Defendant.
12. Plaintiffs had no similar difficulty in complying with the discovery requests of ISI
because Plaintiffs had already searched for, secured and produced the relevant materials during
the discovery process in the Underlying Lawsuit. In this regard, ISI would also point out that,
with regard to emails Plaintiffs sent to, or received from ISI’s employees, such electronic
documents are already in Plaintiffs’ possession and have been for over two and a half years.
13. Sanctions are Unwarranted. When a trial court finds that a party has abused the
discovery process, Rule 215 authorizes the trial court to impose an appropriate sanction. TEX.R.
CIV. P. 215.1(d), 215.3. However, any sanctions imposed under Rule 215 must be just under the
circumstances. TEX.R. CIV. P. 215.2(b); In re Ford Motor Co., 988 S.W.2d 714, 718
(Tex.1998); TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991). See
also In re Supportkids, Inc., 124 S.W.3d 804, 807 (Tex. App.—Houston [1sr Dist.] 2003, orig.
proceeding).
14. ISI has made every effort to comply with the Court’s March 12, 2018 Order. This
is not a case where Defendant has refused to respond to discovery or has lodged frivolous
objections or where Defendant’s conduct has sought to purposefully delay litigation. If
responsive emails and electronic documents exist, ISI has agreed to produce them. ISI has gone
to considerable expense and effort to undertake a good faith effort to locate and supplement
DEFENDANT’S RESPONSE TO PLAINTIFFS’ SECOND MOTION TO COMPEL DISCOVERY AND
ENFORCE DISCOVERY ORDERS Page 4
responsive documents, including searching backed-up data, exporting deactivated electronic
email accounts to a third-party data hosting company and then reviewed by no fewer than six
different paralegal and attorney timekeepers to expedite the review process of identifying
responsive electronic materials. When unanticipated delays were encountered, ISI has notified
Plaintiffs’ counsel and provided updates on progress made towards supplementation. Despite the
fact Plaintiffs are well aware supplementation will occur in the very near future, Plaintiffs
nonetheless insist on seeking sanctions. Defendant respectfully submits under the circumstances
an award of expenses is unjust. There is no conduct the needs to be punished or deterred and
Defendant has made every effort to secure and supplement responsive documents.
III. CONCLUSION
15. Accordingly, ISI requests that the Court abate any ruling on the Plaintiffs’ Second
Motion to Compel and Enforce or alternatively, allow ISI sufficient and reasonable time to
supplement the discovery requests of Plaintiffs.
IV. PRAYER
WHEREFORE, PREMISES CONSIDERED, Industrial Specialists, LLC respectfully
prays that this Court:
(1) Deny the Second Motion to Compel Discovery and Enforce Discovery Orders;
(2) Alternatively, allow Industrial Specialists, LLC sufficient time to complete its
document review for privileged and non-responsive materials and supplement
Plaintiffs’ First Request for Production of Documents;
(3) Find an award of attorneys’ fees and expenses unjust under the circumstances; and
(3) Grant such other and further relief to which ISI may show itself justly entitled.
Respectfully submitted,
DEFENDANT’S RESPONSE TO PLAINTIFFS’ SECOND MOTION TO COMPEL DISCOVERY AND
ENFORCE DISCOVERY ORDERS Page 5
HOLDEN & MONTEJANO
JACQUELINE MONTEJANO
State Bar No. 24027402
JacquelineMontejano@HoldenLitigation.com
1717 Main Street, Suite 5800
Dallas, Texas 75201
Telephone (214) 745-8888
Facsimile (918) 295-8889
ATTORNEY FOR DEFENDANT
INDUSTRIAL SPECIALISTS, LLC
CERTIFICATE OF CONFERENCE
I hereby certify that on June 18, 2018, August 10, 2018 and again on September 10, 2018, I
personally conferred with Plaintiff’s counsel by telephone and/or by letter in an effort to resolve
this discovery dispute without the necessity of court intervention in accordance with Tex. R. Civ.
P. 191.2. Plaintiff’s counsel has been made aware of unanticipated delays encountered
extracting the electronic data from backed-up servers and Defendant’s considerable efforts to
expedite the supplementation process. To the extent the supplementation of electronic data is
forthcoming in the near future, it is Defendant’s position that court intervention is not warranted.
JACQUELINE MONTEJANO
DEFENDANT’S RESPONSE TO PLAINTIFFS’ SECOND MOTION TO COMPEL DISCOVERY AND
ENFORCE DISCOVERY ORDERS Page 6
CERTIFICATE OF SERVICE
I hereby certify that on this the 12th day of September, 2018, a true and correct copy of
the above and foregoing instrument was forwarded to all counsel of record in accordance with
Tex. R. Civ. P. 21 and 21a.
Joel Z. Montgomery
Laina Miller
Z. Alex Ramirez
Shipley Snell Montgomery
712 Main Street, Suite 1400
Houston, Texas 77002
JACQUELINE MONTEJANO
DEFENDANT’S RESPONSE TO PLAINTIFFS’ SECOND MOTION TO COMPEL DISCOVERY AND
ENFORCE DISCOVERY ORDERS Page 7
Exhibit A
DALLAS
Comerica Bank Tower
1717 Main Street
Suite 5800
Dallas, TX 75201
214.745.8888
HOUSTON
24 Waterway Ave.
Suite 660
The Woodlands, TX 77380
281.643.8888
June 18, 2018 OKLAHOMA CITY
Oklahoma Tower
210 Park Ave
Suite 1140
Oklahoma City, OK 73102
Joel Z. Montgomery 405.813.8888
Shipley Snell Montgomery
TULSA
712 Main Street, Suite 1400 First Place
Houston, TX 77002 15 East 5th Street
Suite 3900
Via Email: jmontgomery@shipleysnell.com Tulsa, OK 74103
918.295.8888
Re: Cause No. 17-CV-1242; Blanchard Refining Company LLC and All Faxes to: 918.295.8889
All Mail Reply to Tulsa Address
Marathon Petroleum Company, LP v. Industrial Specialists, LLC;
in the 212th District Court of Galveston County, Texas
HM File No. 233.004
Dear Mr. Montgomery:
Please allow this letter to respond to your correspondence dated June 11, 2018.
Deposition Dates for ISI’s Corporate Representative. Please be advised that we are
checking on dates and will pass them on as soon as we have some for your consideration.
Because of existing commitments on other cases and scheduling difficulties, we are looking
currently for dates in August. While we are confirming the availability of witnesses, we will
put holds on the following dates as a courtesy to you: August 20, 21, 22, and 24, 2018. If you
have a preference as to any of these dates or a conflict, please let us know.
Request for Insuring Agreements. You have asked ISI to produce whole copies of all
insuring agreements applicable for the date of the underlying accident. We have the Berkshire
Hathaway Specialty Insurance excess policy, which we will send to you today via a secure
ShareFile link. We are requesting a copy of the ACE American Insurance Company primary
policy as well as any other policies in the tower insuring ISI. Once we have received them, we
will provide you with copies of same.
Request for Supplementation of Discovery Responses. By a separate letter dated June 11,
2018 you have asked ISI to produce certain requested documents or affirm that it has not
DALLAS HOUSTON OKLAHOMA CITY TULSA
June 18, 2018 HOLDEN & MONTEJANO
Page 2
withheld any responsive documents. We are in the process of reviewing the responses, and any
claims of privilege, and will respond as requested. You also asked about electronic
communications, which may be responsive to certain requests for production. We will contact
ISI and request that they once again search their records and we will supply you with the
responsive documents. Finally, you expressed dissatisfaction with the production of black and
white paper copies of the responsive documents. While we don’t believe that providing such
copies violates any Texas rule on such discovery, if there are documents which are illegible,
please identify the pages/documents in question and we will be happy to provide legible copies.
Alternatively, we can set up inspection of the documents at a mutually agreeable time.
If you have any further questions, please do not hesitate to contact me.
Sincerely,
H O L D EN & M O N T EJ ANO
Jacqueline Montejano
JacquelineMontejano@HoldenLitigation.com
REGIONAL COVERAGE
TEXAS|OKLAHOMA|MISSOURI|ARKANSAS|KANSAS
cc: Steve Holden, Steven R. Shattuck, Laura Holden, Lynn Havrilla, File Room
(via firm e-mail)
Exhibit B
DALLAS
Comerica Bank Tower
1717 Main Street
Suite 5800
Dallas, TX 75201
214.745.8888
HOUSTON
24 Waterway Ave.
Suite 660
The Woodlands, TX 77380
281.643.8888
September 10, 2018
OKLAHOMA CITY
Oklahoma Tower
210 Park Ave
Suite 1140
Joel Z. Montgomery Oklahoma City, OK 73102
Shipley Snell Montgomery 405.813.8888
712 Main Street, Suite 1400
TULSA
Houston, TX 77002 First Place
Via Email: jmontgomery@shipleysnell.com 15 East 5th Street
Suite 3900
Tulsa, OK 74103
Re: Cause No. 17-CV-1242; Blanchard Refining Company LLC and 918.295.8888
Marathon Petroleum Company, LP v. Industrial Specialists, LLC; All Faxes to: 918.295.8889
in the 212th District Court of Galveston County, Texas All Mail Reply to Tulsa Address
HM File No. 233.004
Dear Mr. Montgomery:
Please allow this letter to respond to your correspondence dated August 30, 2018.
Supplementation of Discovery Responses. As you know, we have been diligently working
on supplementing ISI’s document production with respect to Plaintiffs’ Request for Production
No. 39 seeking email correspondence and electronic documents.
My client has been working on this document supplementation issue since June. This has been
a significant undertaking, which has taken much longer than anticipated. Allow me to explain:
Brand/ISI has over 3,000 employees. Specific to the FCCU3 turnaround project, there were
approximately 60 ISI employees working on the project at any given time. We have gone back
through the project logs and turnaround sign-in sheets to identify the ISI workers involved in
the GBR turnaround project.
We then performed a search to determine which ISI employees had email accounts on the day
of the incident. Some of these employees no longer work for ISI. Therefore, ISI has had to
search data that was backed-up two and a half years ago to locate the backed-up email accounts
of former ISI employees.
DALLAS HOUSTON OKLAHOMA CITY TULSA
September 10, 2018 HOLDEN & MONTEJANO
Page 2
To aid in this undertaking, we retained a third-party data hosting and document review service.
When we spoke in August, I had hoped that the relevant email accounts could be extracted and
prepared for review in a week to 10 days. Several of the individual email accounts, however,
were quite large and contained more than a terabyte of data, which resulted in unanticipated
delays. The document review platform was finally loaded this past Friday, September 7, 2018,
and my office is now in the process of reviewing emails for responsiveness, privilege and
relevance.
We will provide responsive emails to you on a rolling basis as they are reviewed and become
available for production.
Upcoming Fact Witness and Corporate Representative Depositions. Plaintiffs have
noticed the following depositions:
1. Corporate Representative for Industrial Specialists, September 18, 2018;
2. Deposition of Jason Baker, September 19, 2018; and
3. Deposition of Nick Rudebusch, September 20, 2018.
We have designated two individuals to testify as ISI’s corporate representative: Austin
Stonestreet has been designated to testify on topic nos. 1, 3, 4, 6, 7, 10, 11, 12, 13, 18, 21, 22,
23, 24, 25, 26, 27, and 28. Richard Wright has been designated to testify on topic nos. 1, 2, 5,
8, 9, 15, 16, 17, 19, and 20.
Mr. Wright is available to testify on September 18, 2018. I have recently been advised,
however, that Mr. Stonestreet has a vacation planned the week of September 17, 2018. We
can offer Mr. Stonestreet for deposition on October 15, 16 or 17, 2018.
I have also been advised that Nick Rudebusch is no longer an employee of ISI and thus, is no
longer under the control of the company. You therefore, may need to subpoena Mr. Rudebusch
if you wish to take his deposition.
We are prepared to present Mr. Wright as noticed on September 18, 2018 and Mr. Baker as
noticed on September 19, 2018. We would ask, however, that these depositions be noticed to
take place at the law offices of Liskow & Lewis in Houston, Texas.
I understand that Plaintiffs may wish to have the supplementation of emails and electronic
documents for review in advance of the party witness depositions. We are open to working
with you to resolve these issues.
September 10, 2018 HOLDEN & MONTEJANO
Page 3
Should you wish to discuss any of the foregoing, please do not hesitate to contact me.
Sincerely,
H O L D EN & M O N T EJ ANO
Jacqueline Montejano
JacquelineMontejano@HoldenLitigation.com
REGIONAL COVERAGE
TEXAS|OKLAHOMA|MISSOURI|ARKANSAS|KANSAS
cc: Steve Holden, Steven R. Shattuck, Laura Holden, Lynn Havrilla, File Room
(via firm e-mail)
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Filed: 9/12/2018 7:39 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 27473866 By: Lisa Kelly 9/13/2018 7:57 AM NO. 17-CV-1242 BLANCHARD REFINING COMPANY § IN THE DISTRICT COURT LLC and MARATHON PETROLEUM § COMPANY LP § § 212TH DISTRICT COURT V. § § INDUSTRIAL SPECIALISTS, LLC § GALVESTON COUNTY, TEXAS DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFF’S SECOND MOTION TO COMPEL DISCOVERY AND MOTION TO ENFORCE DISCOVERY ORDER TO THE HONORABLE DISTRICT JUDGE GRADY: Defendant Industrial Specialists, LLC (“ISI”) files this Response in Opposition to Plaintiffs’ Second Motion to Compel Discovery and Motion to Enforce Discovery Order filed by Plaintiffs Blanchard Refining Company LLC and Marathon Petroleum Company LP (“Plaintiffs”) on August 10, 2018. For its response, ISI would show the Court as follows: 1. Plaintiffs have sued ISI to recover defense costs and settlement funds that Plaintiffs paid to settle personal injury claims brought by injured subcontractors against Plaintiffs (but not against ISI) as the result of a January 11, 2016 fire at the Galveston Bay Refinery (hereafter referred to as the “Underlying Litigation.”). 2. As this Court is well aware, the Parties this this suit initially litigated the question of contractual indemnity, believing in good faith this was a question of law for the Court to decide. While the Parties were litigating this issue, ISI filed a Motion for Protection. In turn, Plaintiffs filed a Motion to Compel, which the Court granted on March 12, 2018. In part, the order required the production of documents responsive to Plaintiffs’ Request for Production within seven days. DEFENDANT’S RESPONSE TO PLAINTIFFS’ SECOND MOTION TO COMPEL DISCOVERY AND ENFORCE DISCOVERY ORDERS Page 1 3. On March 19, 2018, ISI produced 3,241 pages of documents responsive to Plaintiffs’ Requests for Production. The production of documents included the production of electronic documents. On June 18, 2018 and on July 19, 2018 ISI further supplemented its document production and to date, has produced over 3,600 pages of documents responsive to Plaintiffs’ Requests for Production. 4. On June 11, 2018, Plaintiffs’ counsel sent a discovery conference letter requesting that defendant to supplement its document production, believing that additional e-mails and electronic documents may exist. 5. By letter dated June 18, 2018, ISI agreed to search its electronic emails and documents to locate and supplement those documents responsive to Plaintiffs’ First Request for Production. See Exhibit A, correspondence from J. Montejano to J. Montgomery dated June 18, 2018. Since that time, counsel for ISI has diligently sought to locate and provide responsive documents but has run into unanticipated delays and challenges in accomplishing that task. 6. ISI has been working on this document supplementation issue since June. This has been a massive undertaking, which has taken much longer than expected. By way of explanation, Brand/ISI has over 3,000 employees. Specific to the FCCU3 turnaround project, there were approximately 60-90 ISI employees working on the project at any given time. ISI has gone back through the project logs and turnaround sign-in sheets to identify the specific ISI employees involved in the planning and the actual work performed on the GBR turnaround project. 7. After identifying those individuals, ISI then performed a search to determine which ISI employees had email accounts during the project at issue. Some of the employees never had email accounts. And some of the employees that did have email accounts no longer DEFENDANT’S RESPONSE TO PLAINTIFFS’ SECOND MOTION TO COMPEL DISCOVERY AND ENFORCE DISCOVERY ORDERS Page 2 work for ISI. Further given storage limitations, older email messages were automatically archived. Accordingly, ISI has had to search data that was backed-up over two and a half years ago to locate and extract the backed-up email accounts of current and former ISI employees. 8. To aid in this undertaking, ISI hired a third-party data hosting and document review service at significant expense. Several of the individual email accounts and data sets were unexpectedly large and contained more than a terabyte of data. The sheer size of the data set resulted in further unanticipated delays extracting and uploading the data onto a document review platform. After the data was uploaded, filters were applied, and emails were de- duplicated to preliminary narrow the set of documents to be reviewed. The document review platform was finally loaded this past Friday, September 7, 2018, and ISI’s attorneys are now in the process of reviewing emails for responsiveness, privilege and relevance. There remain approximately 11,500 emails and documents containing terabytes electronic documents in that must be reviewed. Many emails will ultimately relate to other jobs and projects outside this litigation and thus, will not be responsive to the production requests and outside the scope of discovery. 9. Throughout this process, ISI’s attorneys have attempted to keep Plaintiffs’ counsel apprised of the significant difficulties in complying with Plaintiffs’ supplementation request. By way of two letters and a telephonic conference, counsel for defendant has been candid and forthright about the monumental undertaking, the unanticipated delays and the expense involved in making a good faith effort to comply with its discovery obligations. 10. On August 10, 2018, the undersigned spoke with Plaintiff’s counsel and advised of the unexpected delays encountered and the efforts being made to supplement Plaintiffs’ discovery requests. On September 10, 2018, the undersigned sent a letter to Plaintiff’s counsel DEFENDANT’S RESPONSE TO PLAINTIFFS’ SECOND MOTION TO COMPEL DISCOVERY AND ENFORCE DISCOVERY ORDERS Page 3 further updating on efforts to supplement emails and electronic documents. See Exhibit B, correspondence from J. Montejano to J. Montgomery dated September 10, 2018. 11. This is not, as Plaintiffs contend, a matter of stonewalling. While Plaintiffs are well aware that the production of these documents is forthcoming as soon as they can be reviewed for relevance and privilege, Plaintiffs have elected to proceed with their Motion to Compel and to seek sanctions form this Defendant. 12. Plaintiffs had no similar difficulty in complying with the discovery requests of ISI because Plaintiffs had already searched for, secured and produced the relevant materials during the discovery process in the Underlying Lawsuit. In this regard, ISI would also point out that, with regard to emails Plaintiffs sent to, or received from ISI’s employees, such electronic documents are already in Plaintiffs’ possession and have been for over two and a half years. 13. Sanctions are Unwarranted. When a trial court finds that a party has abused the discovery process, Rule 215 authorizes the trial court to impose an appropriate sanction. TEX.R. CIV. P. 215.1(d), 215.3. However, any sanctions imposed under Rule 215 must be just under the circumstances. TEX.R. CIV. P. 215.2(b); In re Ford Motor Co., 988 S.W.2d 714, 718 (Tex.1998); TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991). See also In re Supportkids, Inc., 124 S.W.3d 804, 807 (Tex. App.—Houston [1sr Dist.] 2003, orig. proceeding). 14. ISI has made every effort to comply with the Court’s March 12, 2018 Order. This is not a case where Defendant has refused to respond to discovery or has lodged frivolous objections or where Defendant’s conduct has sought to purposefully delay litigation. If responsive emails and electronic documents exist, ISI has agreed to produce them. ISI has gone to considerable expense and effort to undertake a good faith effort to locate and supplement DEFENDANT’S RESPONSE TO PLAINTIFFS’ SECOND MOTION TO COMPEL DISCOVERY AND ENFORCE DISCOVERY ORDERS Page 4 responsive documents, including searching backed-up data, exporting deactivated electronic email accounts to a third-party data hosting company and then reviewed by no fewer than six different paralegal and attorney timekeepers to expedite the review process of identifying responsive electronic materials. When unanticipated delays were encountered, ISI has notified Plaintiffs’ counsel and provided updates on progress made towards supplementation. Despite the fact Plaintiffs are well aware supplementation will occur in the very near future, Plaintiffs nonetheless insist on seeking sanctions. Defendant respectfully submits under the circumstances an award of expenses is unjust. There is no conduct the needs to be punished or deterred and Defendant has made every effort to secure and supplement responsive documents. III. CONCLUSION 15. Accordingly, ISI requests that the Court abate any ruling on the Plaintiffs’ Second Motion to Compel and Enforce or alternatively, allow ISI sufficient and reasonable time to supplement the discovery requests of Plaintiffs. IV. PRAYER WHEREFORE, PREMISES CONSIDERED, Industrial Specialists, LLC respectfully prays that this Court: (1) Deny the Second Motion to Compel Discovery and Enforce Discovery Orders; (2) Alternatively, allow Industrial Specialists, LLC sufficient time to complete its document review for privileged and non-responsive materials and supplement Plaintiffs’ First Request for Production of Documents; (3) Find an award of attorneys’ fees and expenses unjust under the circumstances; and (3) Grant such other and further relief to which ISI may show itself justly entitled. Respectfully submitted, DEFENDANT’S RESPONSE TO PLAINTIFFS’ SECOND MOTION TO COMPEL DISCOVERY AND ENFORCE DISCOVERY ORDERS Page 5 HOLDEN & MONTEJANO JACQUELINE MONTEJANO State Bar No. 24027402 JacquelineMontejano@HoldenLitigation.com 1717 Main Street, Suite 5800 Dallas, Texas 75201 Telephone (214) 745-8888 Facsimile (918) 295-8889 ATTORNEY FOR DEFENDANT INDUSTRIAL SPECIALISTS, LLC CERTIFICATE OF CONFERENCE I hereby certify that on June 18, 2018, August 10, 2018 and again on September 10, 2018, I personally conferred with Plaintiff’s counsel by telephone and/or by letter in an effort to resolve this discovery dispute without the necessity of court intervention in accordance with Tex. R. Civ. P. 191.2. Plaintiff’s counsel has been made aware of unanticipated delays encountered extracting the electronic data from backed-up servers and Defendant’s considerable efforts to expedite the supplementation process. To the extent the supplementation of electronic data is forthcoming in the near future, it is Defendant’s position that court intervention is not warranted. JACQUELINE MONTEJANO DEFENDANT’S RESPONSE TO PLAINTIFFS’ SECOND MOTION TO COMPEL DISCOVERY AND ENFORCE DISCOVERY ORDERS Page 6 CERTIFICATE OF SERVICE I hereby certify that on this the 12th day of September, 2018, a true and correct copy of the above and foregoing instrument was forwarded to all counsel of record in accordance with Tex. R. Civ. P. 21 and 21a. Joel Z. Montgomery Laina Miller Z. Alex Ramirez Shipley Snell Montgomery 712 Main Street, Suite 1400 Houston, Texas 77002 JACQUELINE MONTEJANO DEFENDANT’S RESPONSE TO PLAINTIFFS’ SECOND MOTION TO COMPEL DISCOVERY AND ENFORCE DISCOVERY ORDERS Page 7 Exhibit A DALLAS Comerica Bank Tower 1717 Main Street Suite 5800 Dallas, TX 75201 214.745.8888 HOUSTON 24 Waterway Ave. Suite 660 The Woodlands, TX 77380 281.643.8888 June 18, 2018 OKLAHOMA CITY Oklahoma Tower 210 Park Ave Suite 1140 Oklahoma City, OK 73102 Joel Z. Montgomery 405.813.8888 Shipley Snell Montgomery TULSA 712 Main Street, Suite 1400 First Place Houston, TX 77002 15 East 5th Street Suite 3900 Via Email: jmontgomery@shipleysnell.com Tulsa, OK 74103 918.295.8888 Re: Cause No. 17-CV-1242; Blanchard Refining Company LLC and All Faxes to: 918.295.8889 All Mail Reply to Tulsa Address Marathon Petroleum Company, LP v. Industrial Specialists, LLC; in the 212th District Court of Galveston County, Texas HM File No. 233.004 Dear Mr. Montgomery: Please allow this letter to respond to your correspondence dated June 11, 2018. Deposition Dates for ISI’s Corporate Representative. Please be advised that we are checking on dates and will pass them on as soon as we have some for your consideration. Because of existing commitments on other cases and scheduling difficulties, we are looking currently for dates in August. While we are confirming the availability of witnesses, we will put holds on the following dates as a courtesy to you: August 20, 21, 22, and 24, 2018. If you have a preference as to any of these dates or a conflict, please let us know. Request for Insuring Agreements. You have asked ISI to produce whole copies of all insuring agreements applicable for the date of the underlying accident. We have the Berkshire Hathaway Specialty Insurance excess policy, which we will send to you today via a secure ShareFile link. We are requesting a copy of the ACE American Insurance Company primary policy as well as any other policies in the tower insuring ISI. Once we have received them, we will provide you with copies of same. Request for Supplementation of Discovery Responses. By a separate letter dated June 11, 2018 you have asked ISI to produce certain requested documents or affirm that it has not DALLAS HOUSTON OKLAHOMA CITY TULSA June 18, 2018 HOLDEN & MONTEJANO Page 2 withheld any responsive documents. We are in the process of reviewing the responses, and any claims of privilege, and will respond as requested. You also asked about electronic communications, which may be responsive to certain requests for production. We will contact ISI and request that they once again search their records and we will supply you with the responsive documents. Finally, you expressed dissatisfaction with the production of black and white paper copies of the responsive documents. While we don’t believe that providing such copies violates any Texas rule on such discovery, if there are documents which are illegible, please identify the pages/documents in question and we will be happy to provide legible copies. Alternatively, we can set up inspection of the documents at a mutually agreeable time. If you have any further questions, please do not hesitate to contact me. Sincerely, H O L D EN & M O N T EJ ANO Jacqueline Montejano JacquelineMontejano@HoldenLitigation.com REGIONAL COVERAGE TEXAS|OKLAHOMA|MISSOURI|ARKANSAS|KANSAS cc: Steve Holden, Steven R. Shattuck, Laura Holden, Lynn Havrilla, File Room (via firm e-mail) Exhibit B DALLAS Comerica Bank Tower 1717 Main Street Suite 5800 Dallas, TX 75201 214.745.8888 HOUSTON 24 Waterway Ave. Suite 660 The Woodlands, TX 77380 281.643.8888 September 10, 2018 OKLAHOMA CITY Oklahoma Tower 210 Park Ave Suite 1140 Joel Z. Montgomery Oklahoma City, OK 73102 Shipley Snell Montgomery 405.813.8888 712 Main Street, Suite 1400 TULSA Houston, TX 77002 First Place Via Email: jmontgomery@shipleysnell.com 15 East 5th Street Suite 3900 Tulsa, OK 74103 Re: Cause No. 17-CV-1242; Blanchard Refining Company LLC and 918.295.8888 Marathon Petroleum Company, LP v. Industrial Specialists, LLC; All Faxes to: 918.295.8889 in the 212th District Court of Galveston County, Texas All Mail Reply to Tulsa Address HM File No. 233.004 Dear Mr. Montgomery: Please allow this letter to respond to your correspondence dated August 30, 2018. Supplementation of Discovery Responses. As you know, we have been diligently working on supplementing ISI’s document production with respect to Plaintiffs’ Request for Production No. 39 seeking email correspondence and electronic documents. My client has been working on this document supplementation issue since June. This has been a significant undertaking, which has taken much longer than anticipated. Allow me to explain: Brand/ISI has over 3,000 employees. Specific to the FCCU3 turnaround project, there were approximately 60 ISI employees working on the project at any given time. We have gone back through the project logs and turnaround sign-in sheets to identify the ISI workers involved in the GBR turnaround project. We then performed a search to determine which ISI employees had email accounts on the day of the incident. Some of these employees no longer work for ISI. Therefore, ISI has had to search data that was backed-up two and a half years ago to locate the backed-up email accounts of former ISI employees. DALLAS HOUSTON OKLAHOMA CITY TULSA September 10, 2018 HOLDEN & MONTEJANO Page 2 To aid in this undertaking, we retained a third-party data hosting and document review service. When we spoke in August, I had hoped that the relevant email accounts could be extracted and prepared for review in a week to 10 days. Several of the individual email accounts, however, were quite large and contained more than a terabyte of data, which resulted in unanticipated delays. The document review platform was finally loaded this past Friday, September 7, 2018, and my office is now in the process of reviewing emails for responsiveness, privilege and relevance. We will provide responsive emails to you on a rolling basis as they are reviewed and become available for production. Upcoming Fact Witness and Corporate Representative Depositions. Plaintiffs have noticed the following depositions: 1. Corporate Representative for Industrial Specialists, September 18, 2018; 2. Deposition of Jason Baker, September 19, 2018; and 3. Deposition of Nick Rudebusch, September 20, 2018. We have designated two individuals to testify as ISI’s corporate representative: Austin Stonestreet has been designated to testify on topic nos. 1, 3, 4, 6, 7, 10, 11, 12, 13, 18, 21, 22, 23, 24, 25, 26, 27, and 28. Richard Wright has been designated to testify on topic nos. 1, 2, 5, 8, 9, 15, 16, 17, 19, and 20. Mr. Wright is available to testify on September 18, 2018. I have recently been advised, however, that Mr. Stonestreet has a vacation planned the week of September 17, 2018. We can offer Mr. Stonestreet for deposition on October 15, 16 or 17, 2018. I have also been advised that Nick Rudebusch is no longer an employee of ISI and thus, is no longer under the control of the company. You therefore, may need to subpoena Mr. Rudebusch if you wish to take his deposition. We are prepared to present Mr. Wright as noticed on September 18, 2018 and Mr. Baker as noticed on September 19, 2018. We would ask, however, that these depositions be noticed to take place at the law offices of Liskow & Lewis in Houston, Texas. I understand that Plaintiffs may wish to have the supplementation of emails and electronic documents for review in advance of the party witness depositions. We are open to working with you to resolve these issues. September 10, 2018 HOLDEN & MONTEJANO Page 3 Should you wish to discuss any of the foregoing, please do not hesitate to contact me. Sincerely, H O L D EN & M O N T EJ ANO Jacqueline Montejano JacquelineMontejano@HoldenLitigation.com REGIONAL COVERAGE TEXAS|OKLAHOMA|MISSOURI|ARKANSAS|KANSAS cc: Steve Holden, Steven R. Shattuck, Laura Holden, Lynn Havrilla, File Room (via firm e-mail)