Preview
FILED
DALLAS COUNTY
7/23/2018 12:00 AM
FELICIA PITRE
DISTRICT CLERK
NO. DC-15-11360
SCRAPSOURCE, LLC, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § DALLAS COUNTY, TEXAS
§
JASON WOLFF, MITCHELL §
WOLFF, and FORTIS METAL §
MANAGEMENT, LLC, §
§
Defendants. § 192ND JUDICIAL DISTRICT
PLAINTIFF’S RESPONSE TO DEFENDANTS’
MOTION TO DISQUALIFY ATTORNEY
Plaintiff ScrapSource, LLC (“ScrapSource”) files this Response to Defendants’ Motion
to Disqualify Attorney (“Motion”) filed by Defendants Jason Wolff, Mitchell Wolff, and Fortis
Metal Management, LLC (collectively, “Defendants”) and states:
I.
BACKGROUND AND PROCEDURAL HISTORY
1. This is a suit for breach of a settlement agreement. As set forth in detail in
ScrapSource’s Original Petition (“Petition”), filed on August 31, 2017, ScrapSource was the
plaintiff in a prior lawsuit (“Original Lawsuit”) in this Court against Defendants, in which
ScrapSource alleged that Defendant Jason Wolff (“Jason”) breached the terms of his
employment agreement with ScrapSource by setting up a competing business, Defendant Fortis
Metal Management, LLC, with his brother, Defendant Mitchell Wolff. Gary D. Eisenstat
(“Eisenstat”) and the law firm of Figari + Davenport represented ScrapSource in the Original
Lawsuit.
2. The Parties settled the Original Lawsuit by entering into an agreement referred
to in this proceeding as the Original Settlement Agreement. The terms of the Original
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 1
Settlement Agreement are not directly relevant to this Motion, except to note that one of the
terms resulted in the Court’s entry of an Agreed Injunction Order. Subsequent to the Parties’
execution of the Original Settlement Agreement, ScrapSource became aware of conduct on the
part of Jason, and possibly the other Defendants, that ScrapSource believed was in violation of
the Original Settlement Agreement. Eisenstat, who had by that time become affiliated with the
law firm of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (“ODNSS”), took Jason’s
deposition in aid of enforcement of judgment and obtained testimony that ScrapSource
contends constituted an admission by Jason of Defendants’ breach of the Agreed Injunction
Order and the Original Settlement Agreement. Whether ScrapSource is right about that –
whether Defendants breached the Original Settlement Agreement – is also not directly
relevant.
3. After the deposition, Eisenstat and Bill Pedersen (“Pedersen”), counsel for
Defendants, exchanged a series of emails regarding the possible settlement of the Parties’
dispute regarding Jason’s conduct. ScrapSource contends that the Parties, through the email
exchange between counsel, formed an enforceable agreement to execute an agreement referred
to in this proceeding as the Second Settlement Agreement. When Defendants refused to honor
their promise to execute the Second Settlement Agreement, ScrapSource filed this lawsuit,
with Eisenstat and John M. Barcus of ODNSS as counsel. As set forth in detail in the Petition,
ScrapSource contends that the email exchange between counsel, copies of which are attached
to the Petition, constitutes an enforceable contract. Defendants, with Pedersen as counsel, filed
a general denial.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 2
II.
SCRAPSOURCE HAS IDENTIFIED EISENSTAT
AS A WITNESS SINCE THE BEGINNING
4. It was evident from the face of the Petition – and the two emails attached to it
and referred to extensively in it – that ScrapSource intended to rely on those emails as
evidence of contract formation, including the terms of the contract, and as evidence of breach.
It was of course also evident from the beginning that Eisenstat was one of counsel of record in
this lawsuit. On October 13, 2017, ScrapSource served its Response to Defendants’ Request
for Disclosure, attached hereto, in which it identified both Eisenstat and Pedersen as persons
with knowledge of relevant facts. In particular, ScrapSource disclosed in October of last year
that:
“Mr. Eisenstat has knowledge of the negotiation of the Second
Settlement Agreement and/or the contract incorporating the terms of the Second
Settlement Agreement and of Defendants’ (and/or counsel for Defendants’)
purported repudiation of those contracts.”
“Mr. Pedersen has knowledge of the negotiation of the Second
Settlement Agreement and/or the contract incorporating the terms of the Second
Settlement Agreement and of his (and/or his clients’) purported repudiation of
those contracts.”
[App. 11-17.] Defendants served their combined response to ScrapSource’s request for
Disclosure on October 16, 2017, and in lieu of listing persons with knowledge of relevant
facts, simply incorporated ScrapSource’s disclosure responses by reference. [App. 18-20.]
Therefore, to the extent any doubt existed, Defendants have known that Eisenstat is a potential
fact witness for more than nine months.
5. On June 12, 2018, ScrapSource filed its Motion for Summary Judgment and
Brief in Support (“MSJ”), of which the Court may take judicial notice. One of the exhibits to
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 3
the MSJ is the Affidavit of Gary D. Eisenstat (“Eisenstat Affidavit”). In the Eisenstat
Affidavit, Eisenstat:
Identifies himself as having been counsel of record for ScrapSource in
the Original Lawsuit (an undisputed fact);
States that ScrapSource retained him with regard to possible claims
against Defendants for breach of the Original Settlement Agreement, and
that he took Jason’s deposition in connection with those possible claims
(all undisputed facts);
Authenticates the four emails between himself and Pedersen that
ScrapSource contends constitute an enforceable agreement to execute the
Second Settlement Agreement; and
Proves up ScrapSource’s attorneys’ fees and offers opinion testimony
regarding their reasonableness and necessity.
[MSJ at App. 97-100.] ScrapSource called the Court to obtain a hearing on the MSJ as soon as
it was filed, and on June 13, 2018, gave notice to Defendants that the MSJ had been set for
hearing on July 25, 2018, at 9:30 a.m. Contemporaneously with their response to the MSJ,
Defendants filed the Motion on July 17, 2018 – more than a month after receiving the MSJ and
Eisenstat Affidavit, and nine months after both ScrapSource and Defendants identified
Eisenstat as a potential fact witness.
III.
ARGUMENT AND AUTHORITY
6. In the Motion, Defendants argue that Eisenstat and ODNSS should be
disqualified from representing ScrapSource because “Eisenstat has made himself a witness
herein, and has therefore violated Rule 3.08 of the Texas Disciplinary Rules of Professional
Coduct.” [Motion at p. 1.] Defendants allege that Eisenstat’s affidavit testimony is “on topics
that are unmistakably material to this lawsuit, related to contested issues in this cause, and are
not merely a formality.” [Motion at pp. 1-2.] Defendants cite no case law and no authority
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 4
other than the disciplinary rule itself, which they do not quote or explain. Defendants also do
not explain why they waited nine months after themselves disclosing Eisenstat as a potential
fact witness to raise this issue, leaving the Court free to conclude that Defendants did so in a
naked attempt to gain a tactical advantage.
7. Rule 3.08 provides as follows:
(a) A lawyer shall not accept or continue employment as an advocate
before a tribunal in a contemplated or pending adjudicatory proceeding if the
lawyer knows or believes that the lawyer is or may be a witness necessary to
establish an essential fact on behalf of the lawyer’s client unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of formality and
there is no reason to believe that substantial evidence will be
offered in opposition to the testimony;
(3) the testimony relates to the nature and value of legal services
rendered in the case;
(4) the lawyer is a party to the action and is appearing pro se; or
(5) the lawyer has promptly notified opposing counsel that the
lawyer expects to testify in the matter and disqualification of
the lawyer would work substantial hardship on the client.
(b) A lawyer shall not continue as an advocate in a pending adjudicatory
proceeding if the lawyer believes that the lawyer will be compelled to furnish
testimony that will be substantially adverse to the lawyer’s client, unless the
client consents after full disclosure.
(c) Without the client’s informed consent, a lawyer may not act as an
advocate in an adjudicatory proceeding in which another lawyer in the lawyer’s
firm is prohibited by paragraphs (a) or (b) from serving as an advocate. If the
lawyer to be called as a witness could not also serve as an advocate under this
Rule, that lawyer shall not take an active role before the tribunal in the
presentation of the matter.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 5
Tex. Discip. R. Prof’l Conduct 3.08.1
8. Eisenstat’s affidavit testimony plainly falls Within both of the first two
exceptions: thefact of the four emails is uncontested, and Eisenstat’s testimony authenticating
them is a mere formality. Eisenstat has not testified regarding his “intent” in writing the emails
or the meaning of any of the words he used, nor has he speculated regarding Pedersen’s intent
or mental state. The commentary t0 the Rule makes clear that disqualification is inappropriate:
“Paragraph (a)(l) recognizes that if the testimony will be uncontested, the ambiguities in the
dual role are purely theoretical. Paragraph (a)(2) recognizes that similar considerations apply if
a lawyer’s testimony relates solely t0 a matter of formality and there is no reason to believe
that substantial opposing evidence will be offered. In each 0f those situations requiring the
involvement of another lawyer would be a costly procedure that would serve no significant
countervailing purpose.” Tex. Discip. R. ProFl Conduct 3.08 cmt. 5. Because either or both of
the first two exceptions t0 Rule 3.08 apply, the Court need go no further before denying the
Motion.
9. The Dallas Court of Appeals explained earlier this month that “the fact that a
lawyer serves as both an advocate and a witness does not, standing alone, compel
disqualification.” Quiroz v.State, No 05-16-0151 1-CR, 2018 WL 3387362, at *5 (Tex. App.—
Dallas July 12, 2018, n0 pet. h.) (citing In re Sanders, 153 S.W.3d 54, 57 (Tex. 2004) (orig.
proceeding)). In In re Sanders, the Supreme Court 0f Texas made clear that Rule 3.08 is not to
be used for gamesmanship:
1
The disciplinary rules are reprinted in TEX. GOV’T CODE ANN., tit.2, subtit. G, app. A (West
2013) (Tex. State Bar. R. art. X, s. 9), and are more conveniently published, with the official
commentary, at https://www.law.cornell.edu/ethics/tx/code/TX CODE.HTM.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 6
We have said that disqualification is a severe remedy. Disqualification is a
measure that can cause immediate harm by depriving a party of its chosen
counsel and disrupting court proceedings. Thus, mere allegations of unethical
conduct or evidence showing a remote possibility of a violation of the
disciplinary rules will not suffice to merit disqualification. The fact that a
lawyer serves as both an advocate and a witness does not in itself compel
disqualification. Disqualification is only appropriate if the lawyer’s testimony is
necessary to establish an essential fact. Consequently, the party requesting
disqualification must demonstrate that the opposing lawyer’s dual roles as
attorney and witness will cause the party actual prejudice. Without these
limitations, the rule could improperly be employed as a tactical weapon to
deprive the opposing party of the right to be represented by the lawyer of his or
her choice.
In re Sanders, 153 S.W.3d at 57 (internal alterations and citations omitted).2
10. Put another way, a motion to disqualify carries with it a “burden of showing
actual prejudice.” Shaw . Lemon, 427 S.W.3d 536, 543 (Tex. App.—Dallas 2014, pet. denied),
cert. denied, 135 S.Ct. 1563 (2015) (citing In re Sanders, 153 S.W.3d at 57). That is,“a trial
court may not disqualify an attorney based on a violation of rule 3.08 unless a party timely
files a motion to disqualify and presents evidence establishing their entitlement to
disqualification.” In re VSDH Vaquero Venture, Ltd., No. 05-15-01513-CV, 2016 WL
2621073, at *7 (Tex. App.—Dallas May 6, 2016, orig. proceeding). See, e.g., In re Eagan, No.
05-07-01780-CV, 2008 WL 739864, at *2 (Tex. App.—Dallas March 20, 2008, orig.
proceeding) (citing Sanders and noting that the Supreme Court of Texas “has condemned
disqualification based upon speculative and contingent allegations”).
11. Even if the Court determines that Eisenstat’s affidavit testimony authenticating
four emails does not “relate[ ] to an uncontested issue” and that it does not “relate solely to a
matter of formality,” and even if the Court finds that ScrapSource’s disclosure responses did
not give opposing counsel sufficient notice of Eisenstat’s potential testimony as a fact witness,
2 All emphasis added.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 7
and even if the Court finds that Defendants made their objections known in a timely manner,3
the foregoing case law makes clear ScrapSource still must prove that Eisenstat’s testimony is
likely to cause Defendants actual prejudice. Defendants have made no such showing, and have
introduced no evidence in support of the Motion. Perhaps most tellingly, Defendants have not
even alleged that consideration of Eisenstat’s affidavit testimony at what Defendants call the
“summary judgment trial” will cause them prejudice. The word and the concept are absent
from the single substantive paragraph of the Motion. The Court must deny the Motion for this
reason as well.
12. ScrapSource notes that the Motion contains both a certificate of conference and
a notice of hearing. Counsel for Defendants emailed counsel for ScrapSource at 11:08 p.m. on
Monday, July 16, asking whether ScrapSource would be opposed to the Motion. Apparently
presuming to know the answer, but in violation of the Dallas County Local Rules, ScrapSource
filed the Motion at 10:30 a.m. the next morning without waiting for a response. Of course,
ScrapSource is opposed to the meritless Motion, but a phone call or even a daytime email
would have been appreciated, and might have led to a discussion that would have persuaded
Defendants not to file it.
13. Likewise, the Motion contains a “Notice of Hearing” purporting to indicate that
the Motion is set for hearing at 9:30 a.m. on July 25, 2018, the same date and time as the long-
set hearing on the MSJ. At least based on undersigned counsel’s review of the Court’s online
3 They did not. “A party who fails to file its motion to disqualify opposing counsel in a timely
manner waives the complaint.” Vaughan v. Walther, 875 S.W.2d 690, 690 (Tex. 1994) (holding
that trial court abused its discretion in ordering the disqualification of counsel, when the movant
had been aware of the likelihood of counsel’s testimony for six and a half months). See Spears v.
Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (“[C]ourts must adhere to an
exacting standard when considering motions to disqualify counsel so as to discourage their use
ad a dilatory trial tactic.”).
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 8
docket, it does not appear that the Motion is set for hearing at the indicated date and time, or
indeed that it is set for hearing at all. If the Court declines to hear the Motion for lack of
notice, ScrapSource reserves the right to amend or supplement its response up until the time
permitted by the local rules prior to the “new” hearing date.
RELIEF REQUESTED
For the foregoing reasons, ScrapSource respectfully requests that the Court deny the
Motion, and grant all other relief, general or special, at law or in equity, to which ScrapSource
may be justly entitled.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 9
Respectfully submitted,
By: /s/J0hn M Barcus
GARY D. EISENSTAT
Texas State Bar No. 06503200
gary.eisenstat@ogletree.com
JOHN M. BARCUS
Texas State Bar N0. 24036815
john.barcus@ogletree.com
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
500 Preston Commons West
81 17 Preston Road
Dallas, Texas 75225
(214) 987—3800
(214) 987-3927 (Facsimile)
ATTORNEYS FOR PLAINTIFF
SCRAPSOURCE, LLC
CERTIFICATE OF SERVICE
This is to certify that on this 22nd day of July 2018, a true and correct copy 0f the
above and foregoing was served electronically 0n all counsel 0f record.
/s/J0hn M. Barcus
John M. Barcus
349029721
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 10
CAUSE NO. DC-17-11360
SCRAPSOURCE, LLC, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § DALLAS COUNTY, TEXAS
§
JASON WOLFF, MITCHELL WOLFF AND §
FORTIS METAL MANAGEMENT, LLC, §
§
Defendants. § 14th JUDICIAL DISTRICT
PLAINTIFF’S RESPONSE TO DEFENDANTS’ REQUEST FOR DISCLOSURE
TO: Jason Wolff, Mitchell Wolff and Fortis Metal Management, LLC, Defendants, by and
through their counsel of record, Bill Pedersen, III,Law Office of Bill Pedersen, III, PLLC,
3800 Maple Avenue, Suite 380, Dallas, Texas 75219.
Plaintiff ScrapSource, LLC serves its Response to Defendants’ Request for Disclosure
pursuant to the Texas Rules of Civil Procedure 194 and states:
RESPONSES
(a) The correct names of the parties to the lawsuit;
RESPONSE:
The parties are correctly named.
(b) The name, address, and telephone number of any potential parties;
RESPONSE:
None known at this time.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ REQUEST FOR DISCLOSURE Page 1 of 7
11
(c) The legal theories and, in general, the factual basis of the responding party’s claims or
defenses (the responding party need not marshal all evidence that may be offered at trial);
RESPONSE:
ScrapSource and Defendants were parties to a prior lawsuit styled ScrapSource, LLC v.
Jason Wolff, et al., Cause No. DC-15-00717, in the 192nd Judicial District Court of Dallas
County, Texas (the “Original Lawsuit”). Defendant Jason Wolff (“Jason”) is a former employee
of ScrapSource. In the Original Lawsuit, ScrapSource alleged, among other things, that Jason
had breached his obligations under his employment agreement with ScrapSource, and that all
Defendants had violated the Texas Uniform Trade Secrets Act with regard to information Jason
obtained during his employment with ScrapSource. The Court entered a temporary restraining
order, after which the Parties negotiated a Settlement Agreement resolving the original lawsuit,
the terms of which included entry of an agreed Injunction Order in May 2015.
ScrapSource later became aware that Defendants had committed acts that ScrapSource
believed were in violation of the Settlement Agreement and the Injunction Order. Jason admitted
under oath that these violations had occurred. ScrapSource and Defendants, through their
counsel, then engaged in protracted negotiations regarding the settlement of ScrapSource’s
claims and causes of action arising out of the breach of the Settlement Agreement and Injunction
Order. After the Parties had reached agreement on all material terms of a Second Settlement
Agreement, counsel for Defendants purported to reject the Second Settlement Agreement,
despite the contract (or a contract incorporating the terms of the Second Settlement Agreement)
having already been formed. The purported repudiation, and Defendants’ subsequent failure to
comply with the terms of the Second Settlement Agreement (or a contract incorporating the
terms of the Second Settlement Agreement) constitutes a breach of contract on the part of
Defendants. Alternatively, Defendants’ conduct (i.e.,their soliciting or doing business with an
entity with which they were prohibited from doing business pursuant to the Injunction Order and
Settlement Agreement), as admitted by Jason, constitutes a breach of the Settlement Agreement.
(d) The amount of any method of calculating economic damages;
RESPONSE:
ScrapSource seeks an order compelling specific performance by Defendants of their
monetary and non-monetary obligations under the Second Settlement Agreement (or the contract
between the Parties incorporating the terms of the Second Settlement Agreement). Alternatively,
ScrapSource seeks damages caused by Defendants’ breach of the Settlement Agreement
(including, inter alia, disgorgement of profits generated by Defendants’ improper transaction of
business with the prohibited entity, lost profits from business ScrapSource would have conducted
with that entity but for Defendants’ conduct, and damage to ScrapSource’s actual and
prospective business relations with that entity), and an order compelling specific performance by
Defendants of their obligations under the Settlement Agreement and Injunction Order.
ScrapSource further seeks its reasonable and necessary attorneys’ fees and costs.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ REQUEST FOR DISCLOSURE Page 2 of 7
12
(e) The name, address, and telephone number of persons having knowledge of relevant facts,
and a brief statement of each identified person’s connection with the case;
RESPONSE:
1. Larry Olschwanger, President
ScrapSource, LLC
c/o undersigned counsel
Mr. Olschwanger is the president of ScrapSource, LLC and has knowledge regarding (1)
ScrapSource’s business and operations; (2) ScrapSource’s trade secrets and confidential
information relating to its operations and business methodologies; ScrapSource’s hiring of Jason,
as well as the negotiation, execution, and terms of his employment agreement; (4) the records
and files of ScrapSource that were misappropriated by Jason prior to his resignation from
ScrapSource; (5) Defendants’ solicitation and communications with ScrapSource’s customers
and potential customers; and (6) ScrapSource’s claims and damages herein.
2. Gary D. Eisenstat
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
8117 Preston Road, Suite 500
Dallas, Texas 75225
(214) 624-1145
Mr. Eisenstat has knowledge of the negotiation of the Second Settlement Agreement
and/or the contract incorporating the terms of the second Settlement Agreement and of
Defendants’ (and/or counsel for Defendants’) purported repudiation of those contracts.
3. Jason Wolff
Mitchell Wolf
Fortis Metal Management, LLC
c/o counsel of record
Defendants herein presumably have knowledge of their defenses asserted to
ScrapSource’s claims asserted herein, Jason’s conduct in breach of his employment agreement
with ScrapSource, Defendants’ admitted conduct in breach of the Settlement Agreement and
Injunction Order, their solicitation and communications with ScrapSource’s customers and
potential customers, and their purported repudiation of the Second Settlement Agreement and/or
the contract incorporating the terms of the Second Settlement Agreement.
4. Bill Pedersen, III
LAW OFFICE OF BILL PEDERSEN, III, PLLC
3800 Maple Avenue, Suite 380
Dallas, Texas 75219
(214) 630-4554
PLAINTIFF’S RESPONSE TO DEFENDANTS’ REQUEST FOR DISCLOSURE Page 3 of 7
13
Mr. Pedersen has knowledge of the negotiation of the Second Settlement Agreement
and/or the contract incorporating the terms of the second Settlement Agreement and of his
(and/or his clients’) purported repudiation of those contracts.
5.
REDACTED James A. Downing III
Ritchie Bros.
6050 Azle Avenue
Lake Worth, Texas 76135
512-736-7918
address on information and belief
Mr. Downing and other employees and representatives of Ritchie Bros. are believed to
have knowledge of Defendants’ solicitation and/or transaction of business with Ritchie Bros. in
violation of the terms of the Settlement Agreement and Injunction Order.
(f) For any testifying expert:
(1) the expert’s name, address, and telephone number;
(2) the subject matter on which the expert will testify;
(3) the general substance of the expert’s mental impressions and opinions and a brief
summary of the bases for them, or if the expert is not retained by, employed by, or
otherwise subject to the control of the responding party, documents reflecting
such information;
(4) if the expert is retained by, employed by, or otherwise subject to the control of the
responding party:
(A) all documents, tangible things, reports, models, or data compilations that
have been provided to, reviewed by, or prepared by or for the expert in
anticipation of the expert’s testimony; and,
(B) the expert’s current resume and bibliography.
RESPONSE:
1. Gary D. Eisenstat
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
8117 Preston Road, Suite 500
Dallas, Texas 75225
(214) 624-1145
PLAINTIFF’S RESPONSE TO DEFENDANTS’ REQUEST FOR DISCLOSURE Page 4 of 7
14
Mr. Eisenstat may testify regarding the reasonableness and necessity 0f attorneys’ fees
incurred and sought t0 be recovered by any party. He has not yet rendered any opinions. His
current resume is available at http://www.0gletree.com.
2. John M. Barcus
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
81 17 Preston Road, Suite 500
Dallas, Texas 75225
(214) 3 13-2902
Mr. Barcus may testify regarding the reasonableness and necessity 0f attorneys’ fees
incurred and sought t0 be recovered by any party. He has not yet rendered any opinions. His
current resume is available at http://www.ogletree.com.
(g) any indemnity and insuring agreements described in Rule 192.3(f);
RESPONSE:
None.
(h) any settlement agreements described in Rule 192.3(g);
RESPONSE:
T0 the extent they are construed t0 be responsive t0 this Request, copies 0f the Settlement
Agreement and Second Settlement Agreement (or contract incorporating the terms of the Second
Settlement Agreement) are already in the possession 0f counsel for Defendants, but will be
produced upon further request.
(i) any witness statements described in Rule 192.3(h);
RESPONSE:
T0 the extent itis construed to be responsive to this Request, a copy 0f the transcript of
Jason’s March 21, 2017, deposition is already in the possession 0f counsel for Defendants, but
will be produced upon further request.
(j) in a suit alleging physical or mental injury and damages from the occurrence that is the
subject of the case, all medical records and bills that are reasonably related t0 the injuries
0r damages asserted 0r, in lieu thereof, an authorization permitting the disclosure 0f such
medical records and bills;
PLAINTIFF’S RESPONSE TO DEFENDANTS’ REQUEST FOR DISCLOSURE Page 5 0f 7
15
RESPONSE:
N/A
(k) in a suit alleging physical or mental injury and damages from the occurrence that is the
subject of the case, all medical records and bills obtained by the responding party by
virtue of an authorization furnished by the requesting party;
RESPONSE:
N/A
(1) the name, address, and telephone number 0f any person who may be designed as a
responsible third party.
RESPONSE:
N/A
(MW
Respectfully submitted,
By:
GARY D. EISENSTAT
Texas State Bar N0. 06503200
gary.eisenstat@ogletree.com
JOHN M. BARCUS
Texas State Bar No. 240361 85
john.barcus@ogletree.com
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
500 Preston Commons West
81 17 Preston Road
Dallas, Texas 75225
(214) 987-3800
(214) 987-3927 (Facsimile)
ATTORNEYS FOR PLAINTIFF
PLAINTIFF’S RESPONSE TO DEFENDANTS’ REQUEST FOR DISCLOSURE Page 6 0f 7
16
CERTIFICATE OF SERVICE
MW
Pursuant to the Texas Rules of Civil Procedure, I hereby certify that on October 13, 2017, a
true and correct copy of the foregoing document was served via email on counsel of record.
John M. Barcus
31576654.1
PLAINTIFF’S RESPONSE TO DEFENDANTS’ REQUEST FOR DISCLOSURE Page 7 of 7
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Oct.16.2017 2:16PM No.2904 P. 1/3
NO. DC-l7-11360
SCRAPSOURCE, LLC § IN THE 192N'D JUDICIAL
Plaintiff, §
V. 3
§ DISTRICT COURT
FORTIS METAL MANAGEMENT, §
LLC, MITCHELL WOLFF AND JASON §
WOLFE §
Defendants. § 0F DALLAS COUNTY, TEXAS
DEFENDANT'S DISCLOSURE
TO: ScrapSource, LLC, Plaintiff, by and through Plaintiffs attorney of record, Gary
Eisenstat
Pursuant to Rule 194.3 of the Texas Rules of Civil Procedure, Defendant, Fortis Metal
Management, LLC, by an
Preview
FILED DALLAS COUNTY 7/23/2018 12:00 AM FELICIA PITRE DISTRICT CLERK NO. DC-15-11360 SCRAPSOURCE, LLC, § IN THE DISTRICT COURT § Plaintiff, § § v. § DALLAS COUNTY, TEXAS § JASON WOLFF, MITCHELL § WOLFF, and FORTIS METAL § MANAGEMENT, LLC, § § Defendants. § 192ND JUDICIAL DISTRICT PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY Plaintiff ScrapSource, LLC (“ScrapSource”) files this Response to Defendants’ Motion to Disqualify Attorney (“Motion”) filed by Defendants Jason Wolff, Mitchell Wolff, and Fortis Metal Management, LLC (collectively, “Defendants”) and states: I. BACKGROUND AND PROCEDURAL HISTORY 1. This is a suit for breach of a settlement agreement. As set forth in detail in ScrapSource’s Original Petition (“Petition”), filed on August 31, 2017, ScrapSource was the plaintiff in a prior lawsuit (“Original Lawsuit”) in this Court against Defendants, in which ScrapSource alleged that Defendant Jason Wolff (“Jason”) breached the terms of his employment agreement with ScrapSource by setting up a competing business, Defendant Fortis Metal Management, LLC, with his brother, Defendant Mitchell Wolff. Gary D. Eisenstat (“Eisenstat”) and the law firm of Figari + Davenport represented ScrapSource in the Original Lawsuit. 2. The Parties settled the Original Lawsuit by entering into an agreement referred to in this proceeding as the Original Settlement Agreement. The terms of the Original PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 1 Settlement Agreement are not directly relevant to this Motion, except to note that one of the terms resulted in the Court’s entry of an Agreed Injunction Order. Subsequent to the Parties’ execution of the Original Settlement Agreement, ScrapSource became aware of conduct on the part of Jason, and possibly the other Defendants, that ScrapSource believed was in violation of the Original Settlement Agreement. Eisenstat, who had by that time become affiliated with the law firm of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (“ODNSS”), took Jason’s deposition in aid of enforcement of judgment and obtained testimony that ScrapSource contends constituted an admission by Jason of Defendants’ breach of the Agreed Injunction Order and the Original Settlement Agreement. Whether ScrapSource is right about that – whether Defendants breached the Original Settlement Agreement – is also not directly relevant. 3. After the deposition, Eisenstat and Bill Pedersen (“Pedersen”), counsel for Defendants, exchanged a series of emails regarding the possible settlement of the Parties’ dispute regarding Jason’s conduct. ScrapSource contends that the Parties, through the email exchange between counsel, formed an enforceable agreement to execute an agreement referred to in this proceeding as the Second Settlement Agreement. When Defendants refused to honor their promise to execute the Second Settlement Agreement, ScrapSource filed this lawsuit, with Eisenstat and John M. Barcus of ODNSS as counsel. As set forth in detail in the Petition, ScrapSource contends that the email exchange between counsel, copies of which are attached to the Petition, constitutes an enforceable contract. Defendants, with Pedersen as counsel, filed a general denial. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 2 II. SCRAPSOURCE HAS IDENTIFIED EISENSTAT AS A WITNESS SINCE THE BEGINNING 4. It was evident from the face of the Petition – and the two emails attached to it and referred to extensively in it – that ScrapSource intended to rely on those emails as evidence of contract formation, including the terms of the contract, and as evidence of breach. It was of course also evident from the beginning that Eisenstat was one of counsel of record in this lawsuit. On October 13, 2017, ScrapSource served its Response to Defendants’ Request for Disclosure, attached hereto, in which it identified both Eisenstat and Pedersen as persons with knowledge of relevant facts. In particular, ScrapSource disclosed in October of last year that: “Mr. Eisenstat has knowledge of the negotiation of the Second Settlement Agreement and/or the contract incorporating the terms of the Second Settlement Agreement and of Defendants’ (and/or counsel for Defendants’) purported repudiation of those contracts.” “Mr. Pedersen has knowledge of the negotiation of the Second Settlement Agreement and/or the contract incorporating the terms of the Second Settlement Agreement and of his (and/or his clients’) purported repudiation of those contracts.” [App. 11-17.] Defendants served their combined response to ScrapSource’s request for Disclosure on October 16, 2017, and in lieu of listing persons with knowledge of relevant facts, simply incorporated ScrapSource’s disclosure responses by reference. [App. 18-20.] Therefore, to the extent any doubt existed, Defendants have known that Eisenstat is a potential fact witness for more than nine months. 5. On June 12, 2018, ScrapSource filed its Motion for Summary Judgment and Brief in Support (“MSJ”), of which the Court may take judicial notice. One of the exhibits to PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 3 the MSJ is the Affidavit of Gary D. Eisenstat (“Eisenstat Affidavit”). In the Eisenstat Affidavit, Eisenstat: Identifies himself as having been counsel of record for ScrapSource in the Original Lawsuit (an undisputed fact); States that ScrapSource retained him with regard to possible claims against Defendants for breach of the Original Settlement Agreement, and that he took Jason’s deposition in connection with those possible claims (all undisputed facts); Authenticates the four emails between himself and Pedersen that ScrapSource contends constitute an enforceable agreement to execute the Second Settlement Agreement; and Proves up ScrapSource’s attorneys’ fees and offers opinion testimony regarding their reasonableness and necessity. [MSJ at App. 97-100.] ScrapSource called the Court to obtain a hearing on the MSJ as soon as it was filed, and on June 13, 2018, gave notice to Defendants that the MSJ had been set for hearing on July 25, 2018, at 9:30 a.m. Contemporaneously with their response to the MSJ, Defendants filed the Motion on July 17, 2018 – more than a month after receiving the MSJ and Eisenstat Affidavit, and nine months after both ScrapSource and Defendants identified Eisenstat as a potential fact witness. III. ARGUMENT AND AUTHORITY 6. In the Motion, Defendants argue that Eisenstat and ODNSS should be disqualified from representing ScrapSource because “Eisenstat has made himself a witness herein, and has therefore violated Rule 3.08 of the Texas Disciplinary Rules of Professional Coduct.” [Motion at p. 1.] Defendants allege that Eisenstat’s affidavit testimony is “on topics that are unmistakably material to this lawsuit, related to contested issues in this cause, and are not merely a formality.” [Motion at pp. 1-2.] Defendants cite no case law and no authority PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 4 other than the disciplinary rule itself, which they do not quote or explain. Defendants also do not explain why they waited nine months after themselves disclosing Eisenstat as a potential fact witness to raise this issue, leaving the Court free to conclude that Defendants did so in a naked attempt to gain a tactical advantage. 7. Rule 3.08 provides as follows: (a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client unless: (1) the testimony relates to an uncontested issue; (2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; (3) the testimony relates to the nature and value of legal services rendered in the case; (4) the lawyer is a party to the action and is appearing pro se; or (5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer’s client, unless the client consents after full disclosure. (c) Without the client’s informed consent, a lawyer may not act as an advocate in an adjudicatory proceeding in which another lawyer in the lawyer’s firm is prohibited by paragraphs (a) or (b) from serving as an advocate. If the lawyer to be called as a witness could not also serve as an advocate under this Rule, that lawyer shall not take an active role before the tribunal in the presentation of the matter. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 5 Tex. Discip. R. Prof’l Conduct 3.08.1 8. Eisenstat’s affidavit testimony plainly falls Within both of the first two exceptions: thefact of the four emails is uncontested, and Eisenstat’s testimony authenticating them is a mere formality. Eisenstat has not testified regarding his “intent” in writing the emails or the meaning of any of the words he used, nor has he speculated regarding Pedersen’s intent or mental state. The commentary t0 the Rule makes clear that disqualification is inappropriate: “Paragraph (a)(l) recognizes that if the testimony will be uncontested, the ambiguities in the dual role are purely theoretical. Paragraph (a)(2) recognizes that similar considerations apply if a lawyer’s testimony relates solely t0 a matter of formality and there is no reason to believe that substantial opposing evidence will be offered. In each 0f those situations requiring the involvement of another lawyer would be a costly procedure that would serve no significant countervailing purpose.” Tex. Discip. R. ProFl Conduct 3.08 cmt. 5. Because either or both of the first two exceptions t0 Rule 3.08 apply, the Court need go no further before denying the Motion. 9. The Dallas Court of Appeals explained earlier this month that “the fact that a lawyer serves as both an advocate and a witness does not, standing alone, compel disqualification.” Quiroz v.State, No 05-16-0151 1-CR, 2018 WL 3387362, at *5 (Tex. App.— Dallas July 12, 2018, n0 pet. h.) (citing In re Sanders, 153 S.W.3d 54, 57 (Tex. 2004) (orig. proceeding)). In In re Sanders, the Supreme Court 0f Texas made clear that Rule 3.08 is not to be used for gamesmanship: 1 The disciplinary rules are reprinted in TEX. GOV’T CODE ANN., tit.2, subtit. G, app. A (West 2013) (Tex. State Bar. R. art. X, s. 9), and are more conveniently published, with the official commentary, at https://www.law.cornell.edu/ethics/tx/code/TX CODE.HTM. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 6 We have said that disqualification is a severe remedy. Disqualification is a measure that can cause immediate harm by depriving a party of its chosen counsel and disrupting court proceedings. Thus, mere allegations of unethical conduct or evidence showing a remote possibility of a violation of the disciplinary rules will not suffice to merit disqualification. The fact that a lawyer serves as both an advocate and a witness does not in itself compel disqualification. Disqualification is only appropriate if the lawyer’s testimony is necessary to establish an essential fact. Consequently, the party requesting disqualification must demonstrate that the opposing lawyer’s dual roles as attorney and witness will cause the party actual prejudice. Without these limitations, the rule could improperly be employed as a tactical weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice. In re Sanders, 153 S.W.3d at 57 (internal alterations and citations omitted).2 10. Put another way, a motion to disqualify carries with it a “burden of showing actual prejudice.” Shaw . Lemon, 427 S.W.3d 536, 543 (Tex. App.—Dallas 2014, pet. denied), cert. denied, 135 S.Ct. 1563 (2015) (citing In re Sanders, 153 S.W.3d at 57). That is,“a trial court may not disqualify an attorney based on a violation of rule 3.08 unless a party timely files a motion to disqualify and presents evidence establishing their entitlement to disqualification.” In re VSDH Vaquero Venture, Ltd., No. 05-15-01513-CV, 2016 WL 2621073, at *7 (Tex. App.—Dallas May 6, 2016, orig. proceeding). See, e.g., In re Eagan, No. 05-07-01780-CV, 2008 WL 739864, at *2 (Tex. App.—Dallas March 20, 2008, orig. proceeding) (citing Sanders and noting that the Supreme Court of Texas “has condemned disqualification based upon speculative and contingent allegations”). 11. Even if the Court determines that Eisenstat’s affidavit testimony authenticating four emails does not “relate[ ] to an uncontested issue” and that it does not “relate solely to a matter of formality,” and even if the Court finds that ScrapSource’s disclosure responses did not give opposing counsel sufficient notice of Eisenstat’s potential testimony as a fact witness, 2 All emphasis added. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 7 and even if the Court finds that Defendants made their objections known in a timely manner,3 the foregoing case law makes clear ScrapSource still must prove that Eisenstat’s testimony is likely to cause Defendants actual prejudice. Defendants have made no such showing, and have introduced no evidence in support of the Motion. Perhaps most tellingly, Defendants have not even alleged that consideration of Eisenstat’s affidavit testimony at what Defendants call the “summary judgment trial” will cause them prejudice. The word and the concept are absent from the single substantive paragraph of the Motion. The Court must deny the Motion for this reason as well. 12. ScrapSource notes that the Motion contains both a certificate of conference and a notice of hearing. Counsel for Defendants emailed counsel for ScrapSource at 11:08 p.m. on Monday, July 16, asking whether ScrapSource would be opposed to the Motion. Apparently presuming to know the answer, but in violation of the Dallas County Local Rules, ScrapSource filed the Motion at 10:30 a.m. the next morning without waiting for a response. Of course, ScrapSource is opposed to the meritless Motion, but a phone call or even a daytime email would have been appreciated, and might have led to a discussion that would have persuaded Defendants not to file it. 13. Likewise, the Motion contains a “Notice of Hearing” purporting to indicate that the Motion is set for hearing at 9:30 a.m. on July 25, 2018, the same date and time as the long- set hearing on the MSJ. At least based on undersigned counsel’s review of the Court’s online 3 They did not. “A party who fails to file its motion to disqualify opposing counsel in a timely manner waives the complaint.” Vaughan v. Walther, 875 S.W.2d 690, 690 (Tex. 1994) (holding that trial court abused its discretion in ordering the disqualification of counsel, when the movant had been aware of the likelihood of counsel’s testimony for six and a half months). See Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (“[C]ourts must adhere to an exacting standard when considering motions to disqualify counsel so as to discourage their use ad a dilatory trial tactic.”). PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 8 docket, it does not appear that the Motion is set for hearing at the indicated date and time, or indeed that it is set for hearing at all. If the Court declines to hear the Motion for lack of notice, ScrapSource reserves the right to amend or supplement its response up until the time permitted by the local rules prior to the “new” hearing date. RELIEF REQUESTED For the foregoing reasons, ScrapSource respectfully requests that the Court deny the Motion, and grant all other relief, general or special, at law or in equity, to which ScrapSource may be justly entitled. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 9 Respectfully submitted, By: /s/J0hn M Barcus GARY D. EISENSTAT Texas State Bar No. 06503200 gary.eisenstat@ogletree.com JOHN M. BARCUS Texas State Bar N0. 24036815 john.barcus@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 500 Preston Commons West 81 17 Preston Road Dallas, Texas 75225 (214) 987—3800 (214) 987-3927 (Facsimile) ATTORNEYS FOR PLAINTIFF SCRAPSOURCE, LLC CERTIFICATE OF SERVICE This is to certify that on this 22nd day of July 2018, a true and correct copy 0f the above and foregoing was served electronically 0n all counsel 0f record. /s/J0hn M. Barcus John M. Barcus 349029721 PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISQUALIFY ATTORNEY PAGE 10 CAUSE NO. DC-17-11360 SCRAPSOURCE, LLC, § IN THE DISTRICT COURT § Plaintiff, § § v. § DALLAS COUNTY, TEXAS § JASON WOLFF, MITCHELL WOLFF AND § FORTIS METAL MANAGEMENT, LLC, § § Defendants. § 14th JUDICIAL DISTRICT PLAINTIFF’S RESPONSE TO DEFENDANTS’ REQUEST FOR DISCLOSURE TO: Jason Wolff, Mitchell Wolff and Fortis Metal Management, LLC, Defendants, by and through their counsel of record, Bill Pedersen, III,Law Office of Bill Pedersen, III, PLLC, 3800 Maple Avenue, Suite 380, Dallas, Texas 75219. Plaintiff ScrapSource, LLC serves its Response to Defendants’ Request for Disclosure pursuant to the Texas Rules of Civil Procedure 194 and states: RESPONSES (a) The correct names of the parties to the lawsuit; RESPONSE: The parties are correctly named. (b) The name, address, and telephone number of any potential parties; RESPONSE: None known at this time. PLAINTIFF’S RESPONSE TO DEFENDANTS’ REQUEST FOR DISCLOSURE Page 1 of 7 11 (c) The legal theories and, in general, the factual basis of the responding party’s claims or defenses (the responding party need not marshal all evidence that may be offered at trial); RESPONSE: ScrapSource and Defendants were parties to a prior lawsuit styled ScrapSource, LLC v. Jason Wolff, et al., Cause No. DC-15-00717, in the 192nd Judicial District Court of Dallas County, Texas (the “Original Lawsuit”). Defendant Jason Wolff (“Jason”) is a former employee of ScrapSource. In the Original Lawsuit, ScrapSource alleged, among other things, that Jason had breached his obligations under his employment agreement with ScrapSource, and that all Defendants had violated the Texas Uniform Trade Secrets Act with regard to information Jason obtained during his employment with ScrapSource. The Court entered a temporary restraining order, after which the Parties negotiated a Settlement Agreement resolving the original lawsuit, the terms of which included entry of an agreed Injunction Order in May 2015. ScrapSource later became aware that Defendants had committed acts that ScrapSource believed were in violation of the Settlement Agreement and the Injunction Order. Jason admitted under oath that these violations had occurred. ScrapSource and Defendants, through their counsel, then engaged in protracted negotiations regarding the settlement of ScrapSource’s claims and causes of action arising out of the breach of the Settlement Agreement and Injunction Order. After the Parties had reached agreement on all material terms of a Second Settlement Agreement, counsel for Defendants purported to reject the Second Settlement Agreement, despite the contract (or a contract incorporating the terms of the Second Settlement Agreement) having already been formed. The purported repudiation, and Defendants’ subsequent failure to comply with the terms of the Second Settlement Agreement (or a contract incorporating the terms of the Second Settlement Agreement) constitutes a breach of contract on the part of Defendants. Alternatively, Defendants’ conduct (i.e.,their soliciting or doing business with an entity with which they were prohibited from doing business pursuant to the Injunction Order and Settlement Agreement), as admitted by Jason, constitutes a breach of the Settlement Agreement. (d) The amount of any method of calculating economic damages; RESPONSE: ScrapSource seeks an order compelling specific performance by Defendants of their monetary and non-monetary obligations under the Second Settlement Agreement (or the contract between the Parties incorporating the terms of the Second Settlement Agreement). Alternatively, ScrapSource seeks damages caused by Defendants’ breach of the Settlement Agreement (including, inter alia, disgorgement of profits generated by Defendants’ improper transaction of business with the prohibited entity, lost profits from business ScrapSource would have conducted with that entity but for Defendants’ conduct, and damage to ScrapSource’s actual and prospective business relations with that entity), and an order compelling specific performance by Defendants of their obligations under the Settlement Agreement and Injunction Order. ScrapSource further seeks its reasonable and necessary attorneys’ fees and costs. PLAINTIFF’S RESPONSE TO DEFENDANTS’ REQUEST FOR DISCLOSURE Page 2 of 7 12 (e) The name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person’s connection with the case; RESPONSE: 1. Larry Olschwanger, President ScrapSource, LLC c/o undersigned counsel Mr. Olschwanger is the president of ScrapSource, LLC and has knowledge regarding (1) ScrapSource’s business and operations; (2) ScrapSource’s trade secrets and confidential information relating to its operations and business methodologies; ScrapSource’s hiring of Jason, as well as the negotiation, execution, and terms of his employment agreement; (4) the records and files of ScrapSource that were misappropriated by Jason prior to his resignation from ScrapSource; (5) Defendants’ solicitation and communications with ScrapSource’s customers and potential customers; and (6) ScrapSource’s claims and damages herein. 2. Gary D. Eisenstat OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 8117 Preston Road, Suite 500 Dallas, Texas 75225 (214) 624-1145 Mr. Eisenstat has knowledge of the negotiation of the Second Settlement Agreement and/or the contract incorporating the terms of the second Settlement Agreement and of Defendants’ (and/or counsel for Defendants’) purported repudiation of those contracts. 3. Jason Wolff Mitchell Wolf Fortis Metal Management, LLC c/o counsel of record Defendants herein presumably have knowledge of their defenses asserted to ScrapSource’s claims asserted herein, Jason’s conduct in breach of his employment agreement with ScrapSource, Defendants’ admitted conduct in breach of the Settlement Agreement and Injunction Order, their solicitation and communications with ScrapSource’s customers and potential customers, and their purported repudiation of the Second Settlement Agreement and/or the contract incorporating the terms of the Second Settlement Agreement. 4. Bill Pedersen, III LAW OFFICE OF BILL PEDERSEN, III, PLLC 3800 Maple Avenue, Suite 380 Dallas, Texas 75219 (214) 630-4554 PLAINTIFF’S RESPONSE TO DEFENDANTS’ REQUEST FOR DISCLOSURE Page 3 of 7 13 Mr. Pedersen has knowledge of the negotiation of the Second Settlement Agreement and/or the contract incorporating the terms of the second Settlement Agreement and of his (and/or his clients’) purported repudiation of those contracts. 5. REDACTED James A. Downing III Ritchie Bros. 6050 Azle Avenue Lake Worth, Texas 76135 512-736-7918 address on information and belief Mr. Downing and other employees and representatives of Ritchie Bros. are believed to have knowledge of Defendants’ solicitation and/or transaction of business with Ritchie Bros. in violation of the terms of the Settlement Agreement and Injunction Order. (f) For any testifying expert: (1) the expert’s name, address, and telephone number; (2) the subject matter on which the expert will testify; (3) the general substance of the expert’s mental impressions and opinions and a brief summary of the bases for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information; (4) if the expert is retained by, employed by, or otherwise subject to the control of the responding party: (A) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony; and, (B) the expert’s current resume and bibliography. RESPONSE: 1. Gary D. Eisenstat OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 8117 Preston Road, Suite 500 Dallas, Texas 75225 (214) 624-1145 PLAINTIFF’S RESPONSE TO DEFENDANTS’ REQUEST FOR DISCLOSURE Page 4 of 7 14 Mr. Eisenstat may testify regarding the reasonableness and necessity 0f attorneys’ fees incurred and sought t0 be recovered by any party. He has not yet rendered any opinions. His current resume is available at http://www.0gletree.com. 2. John M. Barcus OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 81 17 Preston Road, Suite 500 Dallas, Texas 75225 (214) 3 13-2902 Mr. Barcus may testify regarding the reasonableness and necessity 0f attorneys’ fees incurred and sought t0 be recovered by any party. He has not yet rendered any opinions. His current resume is available at http://www.ogletree.com. (g) any indemnity and insuring agreements described in Rule 192.3(f); RESPONSE: None. (h) any settlement agreements described in Rule 192.3(g); RESPONSE: T0 the extent they are construed t0 be responsive t0 this Request, copies 0f the Settlement Agreement and Second Settlement Agreement (or contract incorporating the terms of the Second Settlement Agreement) are already in the possession 0f counsel for Defendants, but will be produced upon further request. (i) any witness statements described in Rule 192.3(h); RESPONSE: T0 the extent itis construed to be responsive to this Request, a copy 0f the transcript of Jason’s March 21, 2017, deposition is already in the possession 0f counsel for Defendants, but will be produced upon further request. (j) in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related t0 the injuries 0r damages asserted 0r, in lieu thereof, an authorization permitting the disclosure 0f such medical records and bills; PLAINTIFF’S RESPONSE TO DEFENDANTS’ REQUEST FOR DISCLOSURE Page 5 0f 7 15 RESPONSE: N/A (k) in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party; RESPONSE: N/A (1) the name, address, and telephone number 0f any person who may be designed as a responsible third party. RESPONSE: N/A (MW Respectfully submitted, By: GARY D. EISENSTAT Texas State Bar N0. 06503200 gary.eisenstat@ogletree.com JOHN M. BARCUS Texas State Bar No. 240361 85 john.barcus@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 500 Preston Commons West 81 17 Preston Road Dallas, Texas 75225 (214) 987-3800 (214) 987-3927 (Facsimile) ATTORNEYS FOR PLAINTIFF PLAINTIFF’S RESPONSE TO DEFENDANTS’ REQUEST FOR DISCLOSURE Page 6 0f 7 16 CERTIFICATE OF SERVICE MW Pursuant to the Texas Rules of Civil Procedure, I hereby certify that on October 13, 2017, a true and correct copy of the foregoing document was served via email on counsel of record. John M. Barcus 31576654.1 PLAINTIFF’S RESPONSE TO DEFENDANTS’ REQUEST FOR DISCLOSURE Page 7 of 7 17 Oct.16.2017 2:16PM No.2904 P. 1/3 NO. DC-l7-11360 SCRAPSOURCE, LLC § IN THE 192N'D JUDICIAL Plaintiff, § V. 3 § DISTRICT COURT FORTIS METAL MANAGEMENT, § LLC, MITCHELL WOLFF AND JASON § WOLFE § Defendants. § 0F DALLAS COUNTY, TEXAS DEFENDANT'S DISCLOSURE TO: ScrapSource, LLC, Plaintiff, by and through Plaintiffs attorney of record, Gary Eisenstat Pursuant to Rule 194.3 of the Texas Rules of Civil Procedure, Defendant, Fortis Metal Management, LLC, by an