Preview
FILED
DALLAS COUNTY
1/17/2017 11:33:34 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-16-00270
VICTOR BERNAL, INDIVIDUALLY, AND § IN THE DISTRICT COURT OF
ON BEHALF OF HBT JV, LLC, A TEXAS §
LIMITED LIABILITY COMPANY §
§
PLAINTIFFS, §
§
V. § DALLAS COUNTY, TEXAS
§
DK8, LLC; HBT LAND, LLC; AND §
KENNETH L. SCHNITZER, JR., AN §
INDIVIDUAL; AND HBT JV, LLC, A §
TEXAS LIMITED LIABILITY COMPANY (AS §
A NOMINAL DEFENDANT)
§
§ 95TH JUDICIAL DISTRICT
DEFENDANTS.
RESPONSE TO PLAINTIFFS’ MOTION TO COMPEL
Defendants DK8, LLC, HBT Land, LLC, and Kenneth L. Schnitzer, Jr. (“Defendants”)
file this response to Plaintiffs’ Motion to Compel.
I. INTRODUCTION
Defendants have reviewed roughly a half million documents and produced the non-
privileged information responsive to the never-ending document requests Plaintiffs propound.
Unsatisfied, Plaintiffs now seek to directly invade Defendants’ privilege by asking the court to
compel responses unnecessarily broad discovery requests that encompass privileged
communications between counsel and Defendants or Defendants’ representatives. Making
matters worse, these same discovery requests encompass privileged communications between
Park Place Motorcars, Ltd. (“Park Place”) and its counsel. Plaintiffs’ discovery requests are
improper. Moreover, Plaintiffs surreptitious attempt to compel the production of privileged
communications fails to follow the proper procedure. To compel the production of privileged
communications, Plaintiffs must go line by line through Defendants’ privilege log and identify
those specific documents that they are challenging the privilege. The Court must then conduct
PAGE 1
an in camera inspection of each of those documents and make an independent determination as
to the applicability of the privilege. Plaintiffs cannot broadly request information that
encompasses privileged communications, ask the Court to compel production of information
responsive to such requests, and thereby force Defendants to produce privileged
communications. Plaintiffs have failed to follow the proper procedure for challenging a
privileged designation. For this reason alone, Plaintiffs Motion should be denied.
To add insult to injury, Plaintiffs ask this Court to require Defendants to turn over
documents that either do not exist or that have no relation to this dispute, such as the Wonderlic
score (a measure of intelligence) for each of Defendants’ witnesses. This dispute concerns the
car dealership commonly known as Honda of Burleson (the “Dealership”). Park Place which is
not party to this suit, has twenty-two dealerships across the Dallas-Fort Worth metroplex. Those
dealerships include Bentley Dallas, Bugatti Dallas, and Park Place Jaguar Plano. In addition to
demanding intelligence tests for Defendants’ witnesses, Plaintiffs’ insist they are entitled to
unspecified “policies and procedures” for all twenty-two Park Place dealerships. Moreover, the
underlying requests that are the basis of this motion are so broadly drafted that they include the
production of privileged information belonging to both Defendants and Park Place. As set forth
herein, Plaintiffs requests lack merit and are unrelated to any of the claims asserted in this case.
Plaintiff HBT JV, LLC operates the Dealership and is co-owned by Plaintiff Victor
Bernal (“Bernal”) and Defendant DK8, LLC (“DK8”). Defendant Kenneth L. Schnitzer, Jr.
(“Schnitzer”) manages DK8. Plaintiff Bernal alleges that he is contractually entitled to purchase
the Dealership. He has sued Defendants for breach of contract, promissory fraud, specific
performance, breach of fiduciary duty, usurpation of corporate opportunity, gross negligence,
declaratory relief, and injunctive relief. Defendants have counterclaimed for breach of contract,
PAGE 2
tortious interference, negligence, the commission of ultra vires act, breach of fiduciary duty, and
fraudulent inducement, alleging that Bernal acted contrary to his contractual and fiduciary
obligations by undermining the Dealership’s negotiations with John-Eagle Lincoln Mercury,
LLP (“John Eagle”), among other wrongs.
II. ARGUMENT AND AUTHORITIES
A. Plaintiffs’ Requests Seek the Production of Privileged Information
While Plaintiffs discovery requests are served on Schnitzer, Plaintiffs discovery requests
are truly directed at Park Place. Indeed, the underlying tenor of Plaintiffs litigation tactics is to
attack and sully the reputation of Park Place through its chairman, Kenneth Schnitzer. Park Place
has been, and continues to be, the ultimate target for Plaintiffs. Plaintiffs discovery requests are
no exception. Through their discovery requests, Plaintiffs seek to attack Park Place through
Kenneth Schnitzer. The discovery requests Plaintiffs seek to compel directly seek the production
of communications not only between Defendants and their counsel, but also Park Place and its
counsel.
Since the outset of this litigation, however, Bernal has used the Dealership as his pawn in
an attempt to gain an advantage in this litigation. To that end, Bernal has made every matter
concerning the Dealership a litigation matter. See Exhibit F at ¶ 6-7. Accordingly, Schnitzer and
DK8 have been forced to seek legal counsel with respect to every decision concerning the
Dealership. Id. Likewise, Park Place has been forced to seek legal counsel with respect to every
decision it makes concerning Bernal or the Dealership. Id. Plaintiffs are not entitled to such
privileged communications, and any motion to compel such information should be denied on its
face.
Gardere serves as counsel to both Defendants and Park Place. Id. Gardere has provided
legal advice not only regarding the general legal matters that affect the Dealership but also the
PAGE 3
legal issues stemming from this lawsuit. Id. Accordingly, Park Place and Defendants have a
joint-client privilege concerning the legal representation they have received concerning Bernal
and the Dealership. Id.; See also In re XL Specialty 373 S.W.3d 46, 53 (Tex. 2012). Defendants
have objected and withheld information that is privileged. Additionally, Gardere, on behalf of
Park Place, asserts the privilege on behalf of Park Place. Tex. R. Evid. 503(c); see also West v.
Solito, 563 S.W.2d 240, 244 n. 2 (Tex. 1978).
As a preliminary matter, before the Court can grant such a request, Plaintiffs must follow
the proper procedure for challenging a privilege designation. Before Plaintiffs can challenge a
privilege designation they must first request a privilege log. Plaintiffs, however, never requested
a privilege log. Nevertheless, Defendants generated and produced a privilege log on January 13,
2017. Plaintiffs must then specifically identify those documents that they are challenging
privilege. Once Plaintiffs challenge a privilege designation, Defendants must make a prima facie
case for invoking the privilege by providing affidavit testimony regarding the privilege. In re
Living Ctrs., 175 S.W.3d 253, 261 (Tex. 2005). The prima facie standard requires only the
minimum amount of evidence necessary to support a rational inference that the fact allegation is
true, i.e. that the communication is privileged. In re Memorial Hermann Hosp. Sys., 464 S.W.3d
686, 698 (Tex. 2015). As demonstrated below, Defendants have, with affidavit testimony,
satisfied a prima facie showing supporting a rational inference that the communications withheld
as privilege are indeed privileged. Once a party makes a prima facie case for its claim of
privilege, the party seeking discovery must, based on the privilege log, identify specific
documents or categories of documents it believes the court should inspect in camera. In re
Monsanto Co., 998 S.W.2d 917, 925 (Tex. App.—Waco 1999, orig. proceeding). The court
PAGE 4
must then conduct an in camera inspection of all documents before deciding whether to compel
production. In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004).
Plaintiffs make no attempt to follow this well-established procedure. Plaintiffs have
failed to identify specific documents or categories of documents that they believe should be
inspected. Even if Plaintiffs had identified specific documents for inspection, the Court would
have to inspect each document in camera and make an independent evaluation as to the
privileged nature of the document. And before the Court could compel the production of any
such document, it would first have to provide sufficient time for Defendants and/or Park Place to
appeal that decision. Plaintiffs seek to circumvent this procedure by having the court compel the
broad based production of information responsive to its improper discovery requests. For this
reason alone, Plaintiffs motion should be denied outright to the extent it seeks the production of
any privileged communications.
Even if the Plaintiffs had followed the proper procedure for challenging privilege
designations (they have not), there is no basis for overruling either Defendants’ or Park Place’s
assertion of privilege. First, Defendants have logged those documents they are required to log per
Tex. R. Civ. P. 193.3. Attached as Exhibit F is a copy of the affidavit of Todd Murray, which
includes Defendants’ privileged log. Per Tex. R. Civ. P. 193.3(c), however, does not require
Defendants to log communications “to or from a lawyer or lawyer’s representative…created or
made from the point at which a party consults a lawyer with a view to obtaining professional
legal services from the lawyer in the prosecution or defense of a specific claim in the litigation in
which discovery is requested and concerning the litigation in which the discovery is requested.”
Defendants have not logged communications between counsel and Ken Schnitzer (a party to the
litigation), Doug Schnitzer (a party to this litigation as an owner of DK8), or Rick Stone (the
PAGE 5
party representative of HBT Land) since the commencement of this lawsuit. Moreover, after the
commencement of the litigation, all known correspondence between Ken Schnitzer, Doug
Schnitzer, or Rick Stone related to the Dealership or Bernal have involved counsel. Tex. R. Civ.
P. 193.3 provides that not only is such communications not discoverable, but it is also not even
subject to being logged.
Second, Tex. R. Evid. 503 protects from disclosure confidential communications between
counsel, the client, and the client’s representative. Under Tex. R. Evid. 503, a client is a person,
public officer, corporation, association, or other organization or entity, either public or private.
Tex. R. Evid. 503(a)(1). Client representatives include (1) a person who has authority to obtain
professional legal services for the client or to act for the client on the legal advice rendered or (2)
any other person who, to facilitate the rendition of professional legal services to the client, makes
or receives a confidential communication while acting in the scope of employment for the client.
Tex. R. Evid. 503(a)(2). Texas applies the subject-matter test for determining whether an
employee’s communication is privileged. In re Monsanto Co., 998 S.W.2d 917, 922
(Tex.App.—Waco 1999). Under the subject-matter test, “the employee makes the
communication at the direction of his superiors in the corporation and where the subject matter
upon which the attorney’s advice is sought by the corporation and dealt with in the
communication is the performance by the employee of the duties of his employment.” Id.
Defendants have filed seven affidavits which identify the nature of the communications
that Defendants and Park Place are claiming a privielge. Ken Schnitzer and DK8 are named
parties in this case who have retained Gardere to represent them. Douglas Schnitzer is a
beneficial owner of DK8. Exhibit D at ¶ 2. Accordingly, both Ken Schnitzer, Douglas Schnitzer,
and DK8 are “clients” under Tex. R. Evid. 503. Rick Stone, Sherry Miller, Tony Carimi, and
PAGE 6
Neil Grossman are each client representatives who satisfy the subject-matter test for privileged
communications. Rick Stone has “discretion to call Gardere on a day-to-day basis, when
appropriate and necessary, to get guidance.” Exhibit B at ¶ 6. Rick Stone further “suppl[ied]
information and data needed to litigate this case.” Exhibit B at ¶ 8. Sherry Miller and Tony
Carimi both testified that they have “communicated directly with Mr. Schnitzer and others in the
Park Place organization including the senior management team that includes Gary Venner [and
Sherry Miller], to help facilitate the rendition of legal services being provided by Gardere,
including but not limited to defending against the allegations against both Mr. Schnitzer and
[Park Place].” Exhibit C at ¶ 4. Neil Grossman testified that he “routinely receives confidential
communications while acting in the scope of [his] employment in order to facilitate the rendition
of legal services.” Exhibit E at ¶ 3. Accordingly, Rick Stone, Sherry Miller, Tony Carimi, and
Neil Grossman are each client representatives who both have the authority to obtain professional
legal services and made or received confidential information to facilitate the rendition of legal
services. Tex. R. Evid. 503(a)(2).
The overly broad discovery requests served by Plaintiffs encompass confidential
communications between Ken Schnitzer, Rick Stone and counsel regarding the claims and
defenses in this case. All communications between Ken Schnitzer, Rick Stone and counsel are
protected from disclosure under Tex. R. Evid. 503(b)(1)(A), which allows a client to refuse or
prevent others from disclosing “confidential communications made to facilitate the rendition of
professional legal services to the client between the client or the client’s representative and the
client’s lawyers or the lawyer’s representative.”
Plaintiffs discovery requests further encompass communications among and between the
client representatives of both Defendants and Park Place. Tex. R. Evid. 503(b)(1)(D) prevents
PAGE 7
the disclosure of “confidential communications made to facilitate the rendition of professional
legal services to the client between the client’s representatives or between the client and the
client’s representative.” Such communications would include communications between and
among Ken Schnitzer, Rick Stone, Gary Venner, Tony Carimi, Sherry Miller, and Doug
Schnitzer regarding this litigation. See Exhibit B-E. Moreover, these individuals along with
other employees subject to their managerial control have been instrumental in gathering
information and data needed to facilitate the rendition of legal services in this case. Id.
Accordingly, such information is privileged and not subject to production. For all of these
reasons, Plaintiffs motion to compel should be denied to the extent it seeks the production of
privileged communications.
Defendants now address each of Plaintiffs’ remaining requests in turn:
B. Policies and Procedures for all Park Place Dealerships
Plaintiffs fail to identify the request to which this item relates and, for that reason alone,
this request should be denied. See Contractors Source, Inc. v. Amegy Bank Nat’l Ass’n, 462
S.W.3d 128, 140 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (“In light of [movant’s] failure
to identify with specificity the documents requested or the relevance of those documents to any
claim or defense, we hold that the trial court did not abuse its discretion in denying the motion to
compel.”).
Plaintiffs contend “[t]hese documents are relevant because Plaintiffs are complaining of
biased and unfair treatment by Defendants.” The problem is, Plaintiffs make no such allegation
in their Fifth Amended Complaint, and they fail to explain how this information would relate to
any of their causes of action. Indeed, Plaintiffs do not assert a claim for discrimination in which
evidence of disparate treatment would be relevant. Rather, this lawsuit is a pure business dispute
revolving around Plaintiffs’ allegation that he is entitled to purchase the Dealership. Even if this
PAGE 8
information was relevant, Plaintiffs fail to explain why the Dealership should have the same
“policies and procedures” as the other Park Place dealerships. Plaintiffs cannot articulate a single
reason why the various Park Place dealerships, from Lexus to Bugatti, should be “treated” the
“same” as Honda of Burleson, or what that even means.
Finally, Park Place is not a party to this dispute. Yet rather than subpoena Park Place for
these documents, Plaintiffs demand Schnitzer, in his individual capacity, produce documents that
belong to a separate, legal entity. Defendants cannot produce documents outside their control.
See Tex. R. Civ. P. 192.3(b) (“A person is required to produce a document or tangible thing that
is within the person’s possession, custody, or control.”). For this reason alone, Plaintiffs’ request
should be denied.
C. Park Place’s Hiring and Firing Practices
Plaintiffs seek “documents reflecting all Park Place dealerships’ hiring and firing
practices.” Again, Plaintiffs fail to identify the request to which this item relates, fail to explain
the relevance of this information to their causes of action, and ignore the fact that Park Place is
not a party to this dispute. For the reasons set forth above, this request should be denied.
D. Personnel Files of Park Place Executive Officers
Plaintiffs demand the personnel files of several upper-level Park Place officers and
employees, such as its President and CEO, and its vice presidents. Once more, Plaintiffs contend
this information is relevant to show “disparate treatment.” Relatedly, Plaintiffs cannot explain
why the highest officials at Park Place have any relation to Bernal, the general manager of the
lowest performing dealership in the Park Place family. Plaintiffs do not explain what they expect
to find in the personnel files and how this information will relate to their unpled, entirely
baseless “disparate treatment” allegations or how this hypothetical information will relate to the
individuals’ “credibility,” as Plaintiffs suggest in passing.
PAGE 9
In Mobil Oil, an asbestos exposure case, defendant Mobil designated its employee, Mr.
Casmore, to testify on his employment at Mobil and the safety practices of Mobil. In re Mobil
Oil Corp., 09-06-392 CV, 2006 WL 3028063, at *1 (Tex. App.—Beaumont Oct. 26, 2006, no
pet.). Plaintiffs, the surviving family members, sought the personnel file of Casmore in advance
of his testimony. Id. Mobil objected claiming the file was not relevant. Id. (“Mobil argues that
allowing routine discovery of entire personnel files of non-party witnesses would discourage
witnesses from testifying and unnecessarily burden employers and courts who must screen the
personnel files to protect privacy concerns.”). Plaintiffs filed a motion to compel, the trial court
ordered production, and Mobil sought a writ of mandamus. See generally id.
On relevance, the appellate court held that the party requesting the personnel files bears
the burden. Id. at 2. Plaintiffs argued the file was relevant because Casmore elected to testify
about his employment with Mobil and experience with asbestos. Id. The appellate court
disagreed:
Although Plaintiffs’ position at the hearing on the motion to compel was that
Casmore’s personnel file was relevant with respect to facts surrounding
Casmore’s employment history and his involvement with asbestos, Plaintiffs
requested Mobil produce Casmore’s entire personnel file. Assuming some
documents or information in the file may be shown to be relevant, it seems
equally obvious the personnel file likely includes documents and information that
have no relevance to this asbestos exposure claim. There is nothing about the
location of a document in the personnel file that necessarily makes it relevant to
the pending action.
Id. at *3. Even if this was an employment discrimination case (it’s not), Plaintiffs wouldn’t be
entitled to the relief they seek:
[W]hile it may be legitimate to ask for specific information from a personnel file
to see if persons in similar situations were treated differently from [plaintiff], it
does not follow that the entire personnel file has to be produced. [A] litigant does
not get the entire personnel file because of the possibility that there is something
in it that may prove his case.
PAGE 10
MacIntosh v. Bldg. Owners & Managers Ass'n Int’l, 231 F.R.D. 106, 108–09 (D.D.C. 2005).
Indeed, Plaintiffs do not request specific information that may be contained in a personnel file,
but rather seek complete access to the personnel files of Park Place employees so that they can
nose around in the personal affairs of individuals who are not parties to this case.
Finally, the personnel files of the requested individuals contain highly private and
confidential information belonging to the individual employee. For that reason, Park Place goes
to great lengths to keep this information confidential. Indeed, Park Place keeps all personnel
files under lock and key and restricts all access to the personnel files. Ex. A. Even management
does not have free access to the personnel files. Id. If a manager has a business reason for
reviewing an employee’s personnel file, a Human Resources manager will give the manager
access to only those portions of the personnel file that are relevant to the manager’s inquiry. Id.
Park Place even has a policy in which it represents to its employees that it will protect the
confidential information contained in the employees’ personnel file and keep such information
private. Id. Thus, in many respects, the personnel information that Plaintiffs seek does not belong
to Defendants or Park Place, but rather belongs to the individual employee. Park Place is merely
entrusted to maintain the confidentiality of such information. Simply put, Plaintiffs cannot show
a legitimate reason for invading the privacy of individuals who are not parties to this case.
E. Minutes from DK8’s Meeting
Defendants have already produced all meeting minutes that they could locate for HBT
Land, HBT JV, and DK8. Defendants are under the impression that all minutes related to DK8.
Defendants further agree to produce all DK8 minutes. Therefore, this request should be denied
as moot.
F. Cell Phone Bills, Text Messages, and Emails
PAGE 11
Plaintiffs demand the cell phone records, including bills, of Schnitzer, Rick Stone, Lee
Oden1, Tommy Lee, and Bob LaPenna because “each of these individuals is heavily involved
with the [D]ealership and thereby the lawsuit.” If this allegation were enough to establish
relevance, Plaintiffs would be rummaging through the homes, cars, and offices of the same
individuals (not to say Plaintiffs haven’t already tried). Discovery is not a fishing expedition.
E.g., In re Nat'l Lloyds Ins. Co., 449 S.W.3d 486, 489 (Tex. 2014). As Plaintiffs’ acknowledge,
Defendants have imaged the cell phone of Schnitzer and produced responsive documents.
Plaintiffs, however, contend they are entitled to any report produced as a result of the cell phone
imaging. Plaintiffs aren’t entitled to “double-check” Defendants’ representation that no
documents exist. To hold otherwise would allow Plaintiffs to look through all of Defendants’
records, whether or not they are relevant to this dispute.
Providing access to an electronic storage device is “particularly intrusive and should be
generally discouraged, just as permitting open access to a party’s file cabinets for general perusal
would be.” In re Weekley Homes, L.P., 295 S.W.3d 309, 317 (Tex. 2009). As a threshold matter,
Plaintiffs must show that Defendants defaulted in their obligation to search their records and
produce the data requested. Id. This is an evidentiary showing. Id.; see also In re VERP Inv.,
LLC, 457 S.W.3d 255, 262 (Tex. App.—Dallas 2015, no pet.). “Mere skepticism or bare
allegations that the responding party has failed to comply with its discovery duties are not
sufficient to warrant an order requiring direct access to an opposing party’s electronic device.”
1
Defendants have never asked for this information for Lee Oden and, therefore, this request should be
denied. See In re Harris, 315 S.W.3d 685, 697 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“We hold
that in compelling discovery from [respondent] without requiring [movant] to identify specific discovery
requests with which [respondent] had not complied and without having before ita motion to compel
discovery from [respondent], the trialcourt acted arbitrarily and without considering the discovery
rules.”).
PAGE 12
In re VERP Inv., LLC, 457 S.W.3d at 262. Similarly, “meager document production” is an
inadequate reason to allow one party to access the electronic devices of another party. Weekley,
295 S.W.3d at 319.
Further, to the extent Plaintiffs are asking for the cell phone records of individuals other
than Schnitzer, this information is outside the range of a request for production. See Tex. R. Civ.
P. 192.3(b). Neither Schnitzer nor DK8 has possession, custody, or control over Rick Stone’s,
Lee Oden’s, Tommy Lee’s, or Bob LaPenna’s personal and private cell phone records.
Moreover, the mere fact that these individuals are witnesses to this case does not justify the
highly intrusive fishing expedition into these employees’ personal cell phone records. For these
reasons, Plaintiffs’ request should be denied.
G. Wonderlic Tests for Witnesses
Plaintiffs ask for the Wonderlic test scores—a test which measures, among other things,
an individual’s IQ—for Defendants’ witnesses because Plaintiffs suspect that Defendants will
use these scores against Plaintiffs’ witnesses. Plaintiffs base this suspicion on the fact that
Defendants produced Wonderlic tests of some of Plaintiffs’ witnesses—in response to one of
Plaintiffs’ many requests for production. The irony is that Plaintiffs served such all-
encompassing document requests that they now cannot deduce the issues to which the produced
documents relate. Although Plaintiffs’ abuse of the discovery process has relegated them to
conspiracy theories, Defendants assure the Court that no such intention exists. It is thus entirely
improper, and an invasion of privacy, to request this highly sensitive information of Defendants’
witnesses. Plaintiffs’ rationale for the production of such information is entirely suspect and does
not justify such an invasion of privacy.
H. Management Service Agreement
PAGE 13
Defendants’ counsel have already explained to Plaintiffs’ counsel, Defendants have
vigorously searched for the documents referenced. Defendants’ counsel has repeatedly informed
Plaintiffs’ counsel that they could not locate a copy of the “Management Services Agreement”
referenced. Recently, however, Defendants did locate two drafts of a document titled
management service agreement, which Defendants will produce. Accordingly, this request
should also be denied as moot.
III. CONCLUSION
For the reasons set forth herein, Defendants respectfully request that this Court deny
Plaintiffs’ motion to compel. Defendants further request any and all additional relief to which
they are entitled in either law or equity.
Respectfully submitted,
By: /s/ Todd Murray
Steven C. Lockhart
State Bar No. 24036981
slockhart@gardere.com
Todd Murray
State Bar No. 00794350
tmurray@gardere.com
Robert T. Slovak
State Bar No. 24013523
rslovak@gardere.com
GARDERE WYNNE SEWELL LLP
2021 McKinney Avenue, Suite 1600
Dallas, TX 75201
Telephone: (214) 999-3000
Facsimile: (214) 999-4667
ATTORNEYS FOR DEFENDANTS
PAGE 14
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was served on
counsel on this 17th day of January, 2017, as follows:
James D. Shields, Esq.
Bart F. Higgins, Esq.
David A. Shields, Esq.
16301 Quorum Drive, Suite 250B
Addison, Texas 75001
(972) 788-2040
(972) 788-4332 (facsimile)
jshields@shieldslegal.com
bhiggins@shieldslegal.com
dshields@shieldslegal.com
By: /s/ Todd Murray
Todd Murray
PAGE 15
Gardere01 - 9927382v.1
CAUSE No. DC-16-00270
VICTOR BERNAL, INDIVIDUALLY, AND IN THE DISTRICT COURT OF
ON BEHALF OF HBT JV, LLC, A TEXAS
LIMITED LIABILITY COMPANY
PLAINTIFFS,
V.
DALLAS COUNTY, TEXAS
DK8, LLC; HBT LAND, LLC; AND
KENNETH L. SCHNITZER, JR., AN
INDIVIDUAL; AND HBT JV, LLC, A
TEXAS LIMITED LIABILITY COMPANY (AS
A NOMINAL DEFENDANT)
DEFENDANTS. 95TH JUDICIAL DISTRICT
DECLARATION OF ELISA JOHNSON
STATE OF TEXAS
COUNTY OF DALLAS
Before me, the undersigned authority, on this day personally appeared Elisa Johnson,
known to me, who, after being by me duly sworn, upon her oath deposes and says:
1. My name is Elisa Johnson. I am over twenty-one (21) years of age. I have never
been convicted of a felony or crime of moral turpitude, and I am fully competent to make this
Affidavit.
2. I am the a Human Resources Manager of the Park Place organization of 12
dealership entities representing 20 franchises, of which Park Place Motorcars, Ltd., d/b/a Park
Place Dealerships ("PPM), is one entity. The facts stated herein are within my personal
knowledge as Human Resources Manager of the Park Place organization.
3. Attached hereto as Exhibit 1 is a true and correct copy of the Policy and
Procedures Manual of PPM (the "Manual"). The Manual was made in the routine course of
business, at or near the time of the event recorded. The Manual was made by one having a duty
to record and personal knowledge of the facts therein. The Manual is kept under my supervision
in my capacity as Vice President of Human Resources.
4. PPM publishes a copy of the policy reflected in Exhibit 1 to all of its employees.
Accordingly, PPM represents to its employees that it will keep their confidential records private.
5. In accordance with the Manual, PPM employee personnel files are kept secured
and confidential. All employee personnel files are kept in a secured room that requires a badge to
access.
6. These files contain sensitive, personal information, such as the employee's marital
status, race or ethnicity, age, criminal history (if any), and home address.
7. Only managers, who have an employment-based need to know information, may
inspect the file of the employee. Any time any manager wants to review a personnel file, a
Human Resources manager is present to insure that the information contained in the personnel
file is kept confidential. Managers are only given access to the part of the personnel file that is
relevant to their inquify. An employee may view his or her own file in the presence of Human
Resources, but the files remain the property of PPM. Otherwise, no one else may review the
PPM employee personnel files.
Elisat 4t
o son
PAGE 2
Gardere01 -992'7471v.1
D•ALORSHIPS Policy and Procedures Manual
Title Effective Date Revised Date Section Page
Personnel Records 7/1/99 07/19/11 1
PURPOSE:
Park Place maintains personnel records for employees and past employees in order to document
employment-related decisions, evaluate and assess policies, and comply with government record
keeping and reporting requirements.
LOCATION:
This policy is applicable to Park Place Dealerships.
POLICY:
Park Place strives to balance its need to obtain, use, and retain employment information with each
individual's right to privacy. To this end, it attempts to restrict the personnel information
maintained to that which is necessary for the conduct of its business or which is required by law.
The Human Resources Department is responsible for overseeing the record keeping for all
personnel information and will specify what information should be collected and how it should be
stored and secured.
Employees have a responsibility to make sure their personnel records are up to date and should
make any changes pertaining to the following through MyHR:
Name
Address
Telephone Number
Marital Status
Number of dependents
Beneficiary designati
Preview
FILED DALLAS COUNTY 1/17/2017 11:33:34 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-16-00270 VICTOR BERNAL, INDIVIDUALLY, AND § IN THE DISTRICT COURT OF ON BEHALF OF HBT JV, LLC, A TEXAS § LIMITED LIABILITY COMPANY § § PLAINTIFFS, § § V. § DALLAS COUNTY, TEXAS § DK8, LLC; HBT LAND, LLC; AND § KENNETH L. SCHNITZER, JR., AN § INDIVIDUAL; AND HBT JV, LLC, A § TEXAS LIMITED LIABILITY COMPANY (AS § A NOMINAL DEFENDANT) § § 95TH JUDICIAL DISTRICT DEFENDANTS. RESPONSE TO PLAINTIFFS’ MOTION TO COMPEL Defendants DK8, LLC, HBT Land, LLC, and Kenneth L. Schnitzer, Jr. (“Defendants”) file this response to Plaintiffs’ Motion to Compel. I. INTRODUCTION Defendants have reviewed roughly a half million documents and produced the non- privileged information responsive to the never-ending document requests Plaintiffs propound. Unsatisfied, Plaintiffs now seek to directly invade Defendants’ privilege by asking the court to compel responses unnecessarily broad discovery requests that encompass privileged communications between counsel and Defendants or Defendants’ representatives. Making matters worse, these same discovery requests encompass privileged communications between Park Place Motorcars, Ltd. (“Park Place”) and its counsel. Plaintiffs’ discovery requests are improper. Moreover, Plaintiffs surreptitious attempt to compel the production of privileged communications fails to follow the proper procedure. To compel the production of privileged communications, Plaintiffs must go line by line through Defendants’ privilege log and identify those specific documents that they are challenging the privilege. The Court must then conduct PAGE 1 an in camera inspection of each of those documents and make an independent determination as to the applicability of the privilege. Plaintiffs cannot broadly request information that encompasses privileged communications, ask the Court to compel production of information responsive to such requests, and thereby force Defendants to produce privileged communications. Plaintiffs have failed to follow the proper procedure for challenging a privileged designation. For this reason alone, Plaintiffs Motion should be denied. To add insult to injury, Plaintiffs ask this Court to require Defendants to turn over documents that either do not exist or that have no relation to this dispute, such as the Wonderlic score (a measure of intelligence) for each of Defendants’ witnesses. This dispute concerns the car dealership commonly known as Honda of Burleson (the “Dealership”). Park Place which is not party to this suit, has twenty-two dealerships across the Dallas-Fort Worth metroplex. Those dealerships include Bentley Dallas, Bugatti Dallas, and Park Place Jaguar Plano. In addition to demanding intelligence tests for Defendants’ witnesses, Plaintiffs’ insist they are entitled to unspecified “policies and procedures” for all twenty-two Park Place dealerships. Moreover, the underlying requests that are the basis of this motion are so broadly drafted that they include the production of privileged information belonging to both Defendants and Park Place. As set forth herein, Plaintiffs requests lack merit and are unrelated to any of the claims asserted in this case. Plaintiff HBT JV, LLC operates the Dealership and is co-owned by Plaintiff Victor Bernal (“Bernal”) and Defendant DK8, LLC (“DK8”). Defendant Kenneth L. Schnitzer, Jr. (“Schnitzer”) manages DK8. Plaintiff Bernal alleges that he is contractually entitled to purchase the Dealership. He has sued Defendants for breach of contract, promissory fraud, specific performance, breach of fiduciary duty, usurpation of corporate opportunity, gross negligence, declaratory relief, and injunctive relief. Defendants have counterclaimed for breach of contract, PAGE 2 tortious interference, negligence, the commission of ultra vires act, breach of fiduciary duty, and fraudulent inducement, alleging that Bernal acted contrary to his contractual and fiduciary obligations by undermining the Dealership’s negotiations with John-Eagle Lincoln Mercury, LLP (“John Eagle”), among other wrongs. II. ARGUMENT AND AUTHORITIES A. Plaintiffs’ Requests Seek the Production of Privileged Information While Plaintiffs discovery requests are served on Schnitzer, Plaintiffs discovery requests are truly directed at Park Place. Indeed, the underlying tenor of Plaintiffs litigation tactics is to attack and sully the reputation of Park Place through its chairman, Kenneth Schnitzer. Park Place has been, and continues to be, the ultimate target for Plaintiffs. Plaintiffs discovery requests are no exception. Through their discovery requests, Plaintiffs seek to attack Park Place through Kenneth Schnitzer. The discovery requests Plaintiffs seek to compel directly seek the production of communications not only between Defendants and their counsel, but also Park Place and its counsel. Since the outset of this litigation, however, Bernal has used the Dealership as his pawn in an attempt to gain an advantage in this litigation. To that end, Bernal has made every matter concerning the Dealership a litigation matter. See Exhibit F at ¶ 6-7. Accordingly, Schnitzer and DK8 have been forced to seek legal counsel with respect to every decision concerning the Dealership. Id. Likewise, Park Place has been forced to seek legal counsel with respect to every decision it makes concerning Bernal or the Dealership. Id. Plaintiffs are not entitled to such privileged communications, and any motion to compel such information should be denied on its face. Gardere serves as counsel to both Defendants and Park Place. Id. Gardere has provided legal advice not only regarding the general legal matters that affect the Dealership but also the PAGE 3 legal issues stemming from this lawsuit. Id. Accordingly, Park Place and Defendants have a joint-client privilege concerning the legal representation they have received concerning Bernal and the Dealership. Id.; See also In re XL Specialty 373 S.W.3d 46, 53 (Tex. 2012). Defendants have objected and withheld information that is privileged. Additionally, Gardere, on behalf of Park Place, asserts the privilege on behalf of Park Place. Tex. R. Evid. 503(c); see also West v. Solito, 563 S.W.2d 240, 244 n. 2 (Tex. 1978). As a preliminary matter, before the Court can grant such a request, Plaintiffs must follow the proper procedure for challenging a privilege designation. Before Plaintiffs can challenge a privilege designation they must first request a privilege log. Plaintiffs, however, never requested a privilege log. Nevertheless, Defendants generated and produced a privilege log on January 13, 2017. Plaintiffs must then specifically identify those documents that they are challenging privilege. Once Plaintiffs challenge a privilege designation, Defendants must make a prima facie case for invoking the privilege by providing affidavit testimony regarding the privilege. In re Living Ctrs., 175 S.W.3d 253, 261 (Tex. 2005). The prima facie standard requires only the minimum amount of evidence necessary to support a rational inference that the fact allegation is true, i.e. that the communication is privileged. In re Memorial Hermann Hosp. Sys., 464 S.W.3d 686, 698 (Tex. 2015). As demonstrated below, Defendants have, with affidavit testimony, satisfied a prima facie showing supporting a rational inference that the communications withheld as privilege are indeed privileged. Once a party makes a prima facie case for its claim of privilege, the party seeking discovery must, based on the privilege log, identify specific documents or categories of documents it believes the court should inspect in camera. In re Monsanto Co., 998 S.W.2d 917, 925 (Tex. App.—Waco 1999, orig. proceeding). The court PAGE 4 must then conduct an in camera inspection of all documents before deciding whether to compel production. In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004). Plaintiffs make no attempt to follow this well-established procedure. Plaintiffs have failed to identify specific documents or categories of documents that they believe should be inspected. Even if Plaintiffs had identified specific documents for inspection, the Court would have to inspect each document in camera and make an independent evaluation as to the privileged nature of the document. And before the Court could compel the production of any such document, it would first have to provide sufficient time for Defendants and/or Park Place to appeal that decision. Plaintiffs seek to circumvent this procedure by having the court compel the broad based production of information responsive to its improper discovery requests. For this reason alone, Plaintiffs motion should be denied outright to the extent it seeks the production of any privileged communications. Even if the Plaintiffs had followed the proper procedure for challenging privilege designations (they have not), there is no basis for overruling either Defendants’ or Park Place’s assertion of privilege. First, Defendants have logged those documents they are required to log per Tex. R. Civ. P. 193.3. Attached as Exhibit F is a copy of the affidavit of Todd Murray, which includes Defendants’ privileged log. Per Tex. R. Civ. P. 193.3(c), however, does not require Defendants to log communications “to or from a lawyer or lawyer’s representative…created or made from the point at which a party consults a lawyer with a view to obtaining professional legal services from the lawyer in the prosecution or defense of a specific claim in the litigation in which discovery is requested and concerning the litigation in which the discovery is requested.” Defendants have not logged communications between counsel and Ken Schnitzer (a party to the litigation), Doug Schnitzer (a party to this litigation as an owner of DK8), or Rick Stone (the PAGE 5 party representative of HBT Land) since the commencement of this lawsuit. Moreover, after the commencement of the litigation, all known correspondence between Ken Schnitzer, Doug Schnitzer, or Rick Stone related to the Dealership or Bernal have involved counsel. Tex. R. Civ. P. 193.3 provides that not only is such communications not discoverable, but it is also not even subject to being logged. Second, Tex. R. Evid. 503 protects from disclosure confidential communications between counsel, the client, and the client’s representative. Under Tex. R. Evid. 503, a client is a person, public officer, corporation, association, or other organization or entity, either public or private. Tex. R. Evid. 503(a)(1). Client representatives include (1) a person who has authority to obtain professional legal services for the client or to act for the client on the legal advice rendered or (2) any other person who, to facilitate the rendition of professional legal services to the client, makes or receives a confidential communication while acting in the scope of employment for the client. Tex. R. Evid. 503(a)(2). Texas applies the subject-matter test for determining whether an employee’s communication is privileged. In re Monsanto Co., 998 S.W.2d 917, 922 (Tex.App.—Waco 1999). Under the subject-matter test, “the employee makes the communication at the direction of his superiors in the corporation and where the subject matter upon which the attorney’s advice is sought by the corporation and dealt with in the communication is the performance by the employee of the duties of his employment.” Id. Defendants have filed seven affidavits which identify the nature of the communications that Defendants and Park Place are claiming a privielge. Ken Schnitzer and DK8 are named parties in this case who have retained Gardere to represent them. Douglas Schnitzer is a beneficial owner of DK8. Exhibit D at ¶ 2. Accordingly, both Ken Schnitzer, Douglas Schnitzer, and DK8 are “clients” under Tex. R. Evid. 503. Rick Stone, Sherry Miller, Tony Carimi, and PAGE 6 Neil Grossman are each client representatives who satisfy the subject-matter test for privileged communications. Rick Stone has “discretion to call Gardere on a day-to-day basis, when appropriate and necessary, to get guidance.” Exhibit B at ¶ 6. Rick Stone further “suppl[ied] information and data needed to litigate this case.” Exhibit B at ¶ 8. Sherry Miller and Tony Carimi both testified that they have “communicated directly with Mr. Schnitzer and others in the Park Place organization including the senior management team that includes Gary Venner [and Sherry Miller], to help facilitate the rendition of legal services being provided by Gardere, including but not limited to defending against the allegations against both Mr. Schnitzer and [Park Place].” Exhibit C at ¶ 4. Neil Grossman testified that he “routinely receives confidential communications while acting in the scope of [his] employment in order to facilitate the rendition of legal services.” Exhibit E at ¶ 3. Accordingly, Rick Stone, Sherry Miller, Tony Carimi, and Neil Grossman are each client representatives who both have the authority to obtain professional legal services and made or received confidential information to facilitate the rendition of legal services. Tex. R. Evid. 503(a)(2). The overly broad discovery requests served by Plaintiffs encompass confidential communications between Ken Schnitzer, Rick Stone and counsel regarding the claims and defenses in this case. All communications between Ken Schnitzer, Rick Stone and counsel are protected from disclosure under Tex. R. Evid. 503(b)(1)(A), which allows a client to refuse or prevent others from disclosing “confidential communications made to facilitate the rendition of professional legal services to the client between the client or the client’s representative and the client’s lawyers or the lawyer’s representative.” Plaintiffs discovery requests further encompass communications among and between the client representatives of both Defendants and Park Place. Tex. R. Evid. 503(b)(1)(D) prevents PAGE 7 the disclosure of “confidential communications made to facilitate the rendition of professional legal services to the client between the client’s representatives or between the client and the client’s representative.” Such communications would include communications between and among Ken Schnitzer, Rick Stone, Gary Venner, Tony Carimi, Sherry Miller, and Doug Schnitzer regarding this litigation. See Exhibit B-E. Moreover, these individuals along with other employees subject to their managerial control have been instrumental in gathering information and data needed to facilitate the rendition of legal services in this case. Id. Accordingly, such information is privileged and not subject to production. For all of these reasons, Plaintiffs motion to compel should be denied to the extent it seeks the production of privileged communications. Defendants now address each of Plaintiffs’ remaining requests in turn: B. Policies and Procedures for all Park Place Dealerships Plaintiffs fail to identify the request to which this item relates and, for that reason alone, this request should be denied. See Contractors Source, Inc. v. Amegy Bank Nat’l Ass’n, 462 S.W.3d 128, 140 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (“In light of [movant’s] failure to identify with specificity the documents requested or the relevance of those documents to any claim or defense, we hold that the trial court did not abuse its discretion in denying the motion to compel.”). Plaintiffs contend “[t]hese documents are relevant because Plaintiffs are complaining of biased and unfair treatment by Defendants.” The problem is, Plaintiffs make no such allegation in their Fifth Amended Complaint, and they fail to explain how this information would relate to any of their causes of action. Indeed, Plaintiffs do not assert a claim for discrimination in which evidence of disparate treatment would be relevant. Rather, this lawsuit is a pure business dispute revolving around Plaintiffs’ allegation that he is entitled to purchase the Dealership. Even if this PAGE 8 information was relevant, Plaintiffs fail to explain why the Dealership should have the same “policies and procedures” as the other Park Place dealerships. Plaintiffs cannot articulate a single reason why the various Park Place dealerships, from Lexus to Bugatti, should be “treated” the “same” as Honda of Burleson, or what that even means. Finally, Park Place is not a party to this dispute. Yet rather than subpoena Park Place for these documents, Plaintiffs demand Schnitzer, in his individual capacity, produce documents that belong to a separate, legal entity. Defendants cannot produce documents outside their control. See Tex. R. Civ. P. 192.3(b) (“A person is required to produce a document or tangible thing that is within the person’s possession, custody, or control.”). For this reason alone, Plaintiffs’ request should be denied. C. Park Place’s Hiring and Firing Practices Plaintiffs seek “documents reflecting all Park Place dealerships’ hiring and firing practices.” Again, Plaintiffs fail to identify the request to which this item relates, fail to explain the relevance of this information to their causes of action, and ignore the fact that Park Place is not a party to this dispute. For the reasons set forth above, this request should be denied. D. Personnel Files of Park Place Executive Officers Plaintiffs demand the personnel files of several upper-level Park Place officers and employees, such as its President and CEO, and its vice presidents. Once more, Plaintiffs contend this information is relevant to show “disparate treatment.” Relatedly, Plaintiffs cannot explain why the highest officials at Park Place have any relation to Bernal, the general manager of the lowest performing dealership in the Park Place family. Plaintiffs do not explain what they expect to find in the personnel files and how this information will relate to their unpled, entirely baseless “disparate treatment” allegations or how this hypothetical information will relate to the individuals’ “credibility,” as Plaintiffs suggest in passing. PAGE 9 In Mobil Oil, an asbestos exposure case, defendant Mobil designated its employee, Mr. Casmore, to testify on his employment at Mobil and the safety practices of Mobil. In re Mobil Oil Corp., 09-06-392 CV, 2006 WL 3028063, at *1 (Tex. App.—Beaumont Oct. 26, 2006, no pet.). Plaintiffs, the surviving family members, sought the personnel file of Casmore in advance of his testimony. Id. Mobil objected claiming the file was not relevant. Id. (“Mobil argues that allowing routine discovery of entire personnel files of non-party witnesses would discourage witnesses from testifying and unnecessarily burden employers and courts who must screen the personnel files to protect privacy concerns.”). Plaintiffs filed a motion to compel, the trial court ordered production, and Mobil sought a writ of mandamus. See generally id. On relevance, the appellate court held that the party requesting the personnel files bears the burden. Id. at 2. Plaintiffs argued the file was relevant because Casmore elected to testify about his employment with Mobil and experience with asbestos. Id. The appellate court disagreed: Although Plaintiffs’ position at the hearing on the motion to compel was that Casmore’s personnel file was relevant with respect to facts surrounding Casmore’s employment history and his involvement with asbestos, Plaintiffs requested Mobil produce Casmore’s entire personnel file. Assuming some documents or information in the file may be shown to be relevant, it seems equally obvious the personnel file likely includes documents and information that have no relevance to this asbestos exposure claim. There is nothing about the location of a document in the personnel file that necessarily makes it relevant to the pending action. Id. at *3. Even if this was an employment discrimination case (it’s not), Plaintiffs wouldn’t be entitled to the relief they seek: [W]hile it may be legitimate to ask for specific information from a personnel file to see if persons in similar situations were treated differently from [plaintiff], it does not follow that the entire personnel file has to be produced. [A] litigant does not get the entire personnel file because of the possibility that there is something in it that may prove his case. PAGE 10 MacIntosh v. Bldg. Owners & Managers Ass'n Int’l, 231 F.R.D. 106, 108–09 (D.D.C. 2005). Indeed, Plaintiffs do not request specific information that may be contained in a personnel file, but rather seek complete access to the personnel files of Park Place employees so that they can nose around in the personal affairs of individuals who are not parties to this case. Finally, the personnel files of the requested individuals contain highly private and confidential information belonging to the individual employee. For that reason, Park Place goes to great lengths to keep this information confidential. Indeed, Park Place keeps all personnel files under lock and key and restricts all access to the personnel files. Ex. A. Even management does not have free access to the personnel files. Id. If a manager has a business reason for reviewing an employee’s personnel file, a Human Resources manager will give the manager access to only those portions of the personnel file that are relevant to the manager’s inquiry. Id. Park Place even has a policy in which it represents to its employees that it will protect the confidential information contained in the employees’ personnel file and keep such information private. Id. Thus, in many respects, the personnel information that Plaintiffs seek does not belong to Defendants or Park Place, but rather belongs to the individual employee. Park Place is merely entrusted to maintain the confidentiality of such information. Simply put, Plaintiffs cannot show a legitimate reason for invading the privacy of individuals who are not parties to this case. E. Minutes from DK8’s Meeting Defendants have already produced all meeting minutes that they could locate for HBT Land, HBT JV, and DK8. Defendants are under the impression that all minutes related to DK8. Defendants further agree to produce all DK8 minutes. Therefore, this request should be denied as moot. F. Cell Phone Bills, Text Messages, and Emails PAGE 11 Plaintiffs demand the cell phone records, including bills, of Schnitzer, Rick Stone, Lee Oden1, Tommy Lee, and Bob LaPenna because “each of these individuals is heavily involved with the [D]ealership and thereby the lawsuit.” If this allegation were enough to establish relevance, Plaintiffs would be rummaging through the homes, cars, and offices of the same individuals (not to say Plaintiffs haven’t already tried). Discovery is not a fishing expedition. E.g., In re Nat'l Lloyds Ins. Co., 449 S.W.3d 486, 489 (Tex. 2014). As Plaintiffs’ acknowledge, Defendants have imaged the cell phone of Schnitzer and produced responsive documents. Plaintiffs, however, contend they are entitled to any report produced as a result of the cell phone imaging. Plaintiffs aren’t entitled to “double-check” Defendants’ representation that no documents exist. To hold otherwise would allow Plaintiffs to look through all of Defendants’ records, whether or not they are relevant to this dispute. Providing access to an electronic storage device is “particularly intrusive and should be generally discouraged, just as permitting open access to a party’s file cabinets for general perusal would be.” In re Weekley Homes, L.P., 295 S.W.3d 309, 317 (Tex. 2009). As a threshold matter, Plaintiffs must show that Defendants defaulted in their obligation to search their records and produce the data requested. Id. This is an evidentiary showing. Id.; see also In re VERP Inv., LLC, 457 S.W.3d 255, 262 (Tex. App.—Dallas 2015, no pet.). “Mere skepticism or bare allegations that the responding party has failed to comply with its discovery duties are not sufficient to warrant an order requiring direct access to an opposing party’s electronic device.” 1 Defendants have never asked for this information for Lee Oden and, therefore, this request should be denied. See In re Harris, 315 S.W.3d 685, 697 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“We hold that in compelling discovery from [respondent] without requiring [movant] to identify specific discovery requests with which [respondent] had not complied and without having before ita motion to compel discovery from [respondent], the trialcourt acted arbitrarily and without considering the discovery rules.”). PAGE 12 In re VERP Inv., LLC, 457 S.W.3d at 262. Similarly, “meager document production” is an inadequate reason to allow one party to access the electronic devices of another party. Weekley, 295 S.W.3d at 319. Further, to the extent Plaintiffs are asking for the cell phone records of individuals other than Schnitzer, this information is outside the range of a request for production. See Tex. R. Civ. P. 192.3(b). Neither Schnitzer nor DK8 has possession, custody, or control over Rick Stone’s, Lee Oden’s, Tommy Lee’s, or Bob LaPenna’s personal and private cell phone records. Moreover, the mere fact that these individuals are witnesses to this case does not justify the highly intrusive fishing expedition into these employees’ personal cell phone records. For these reasons, Plaintiffs’ request should be denied. G. Wonderlic Tests for Witnesses Plaintiffs ask for the Wonderlic test scores—a test which measures, among other things, an individual’s IQ—for Defendants’ witnesses because Plaintiffs suspect that Defendants will use these scores against Plaintiffs’ witnesses. Plaintiffs base this suspicion on the fact that Defendants produced Wonderlic tests of some of Plaintiffs’ witnesses—in response to one of Plaintiffs’ many requests for production. The irony is that Plaintiffs served such all- encompassing document requests that they now cannot deduce the issues to which the produced documents relate. Although Plaintiffs’ abuse of the discovery process has relegated them to conspiracy theories, Defendants assure the Court that no such intention exists. It is thus entirely improper, and an invasion of privacy, to request this highly sensitive information of Defendants’ witnesses. Plaintiffs’ rationale for the production of such information is entirely suspect and does not justify such an invasion of privacy. H. Management Service Agreement PAGE 13 Defendants’ counsel have already explained to Plaintiffs’ counsel, Defendants have vigorously searched for the documents referenced. Defendants’ counsel has repeatedly informed Plaintiffs’ counsel that they could not locate a copy of the “Management Services Agreement” referenced. Recently, however, Defendants did locate two drafts of a document titled management service agreement, which Defendants will produce. Accordingly, this request should also be denied as moot. III. CONCLUSION For the reasons set forth herein, Defendants respectfully request that this Court deny Plaintiffs’ motion to compel. Defendants further request any and all additional relief to which they are entitled in either law or equity. Respectfully submitted, By: /s/ Todd Murray Steven C. Lockhart State Bar No. 24036981 slockhart@gardere.com Todd Murray State Bar No. 00794350 tmurray@gardere.com Robert T. Slovak State Bar No. 24013523 rslovak@gardere.com GARDERE WYNNE SEWELL LLP 2021 McKinney Avenue, Suite 1600 Dallas, TX 75201 Telephone: (214) 999-3000 Facsimile: (214) 999-4667 ATTORNEYS FOR DEFENDANTS PAGE 14 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served on counsel on this 17th day of January, 2017, as follows: James D. Shields, Esq. Bart F. Higgins, Esq. David A. Shields, Esq. 16301 Quorum Drive, Suite 250B Addison, Texas 75001 (972) 788-2040 (972) 788-4332 (facsimile) jshields@shieldslegal.com bhiggins@shieldslegal.com dshields@shieldslegal.com By: /s/ Todd Murray Todd Murray PAGE 15 Gardere01 - 9927382v.1 CAUSE No. DC-16-00270 VICTOR BERNAL, INDIVIDUALLY, AND IN THE DISTRICT COURT OF ON BEHALF OF HBT JV, LLC, A TEXAS LIMITED LIABILITY COMPANY PLAINTIFFS, V. DALLAS COUNTY, TEXAS DK8, LLC; HBT LAND, LLC; AND KENNETH L. SCHNITZER, JR., AN INDIVIDUAL; AND HBT JV, LLC, A TEXAS LIMITED LIABILITY COMPANY (AS A NOMINAL DEFENDANT) DEFENDANTS. 95TH JUDICIAL DISTRICT DECLARATION OF ELISA JOHNSON STATE OF TEXAS COUNTY OF DALLAS Before me, the undersigned authority, on this day personally appeared Elisa Johnson, known to me, who, after being by me duly sworn, upon her oath deposes and says: 1. My name is Elisa Johnson. I am over twenty-one (21) years of age. I have never been convicted of a felony or crime of moral turpitude, and I am fully competent to make this Affidavit. 2. I am the a Human Resources Manager of the Park Place organization of 12 dealership entities representing 20 franchises, of which Park Place Motorcars, Ltd., d/b/a Park Place Dealerships ("PPM), is one entity. The facts stated herein are within my personal knowledge as Human Resources Manager of the Park Place organization. 3. Attached hereto as Exhibit 1 is a true and correct copy of the Policy and Procedures Manual of PPM (the "Manual"). The Manual was made in the routine course of business, at or near the time of the event recorded. The Manual was made by one having a duty to record and personal knowledge of the facts therein. The Manual is kept under my supervision in my capacity as Vice President of Human Resources. 4. PPM publishes a copy of the policy reflected in Exhibit 1 to all of its employees. Accordingly, PPM represents to its employees that it will keep their confidential records private. 5. In accordance with the Manual, PPM employee personnel files are kept secured and confidential. All employee personnel files are kept in a secured room that requires a badge to access. 6. These files contain sensitive, personal information, such as the employee's marital status, race or ethnicity, age, criminal history (if any), and home address. 7. Only managers, who have an employment-based need to know information, may inspect the file of the employee. Any time any manager wants to review a personnel file, a Human Resources manager is present to insure that the information contained in the personnel file is kept confidential. Managers are only given access to the part of the personnel file that is relevant to their inquify. An employee may view his or her own file in the presence of Human Resources, but the files remain the property of PPM. Otherwise, no one else may review the PPM employee personnel files. Elisat 4t o son PAGE 2 Gardere01 -992'7471v.1 D•ALORSHIPS Policy and Procedures Manual Title Effective Date Revised Date Section Page Personnel Records 7/1/99 07/19/11 1 PURPOSE: Park Place maintains personnel records for employees and past employees in order to document employment-related decisions, evaluate and assess policies, and comply with government record keeping and reporting requirements. LOCATION: This policy is applicable to Park Place Dealerships. POLICY: Park Place strives to balance its need to obtain, use, and retain employment information with each individual's right to privacy. To this end, it attempts to restrict the personnel information maintained to that which is necessary for the conduct of its business or which is required by law. The Human Resources Department is responsible for overseeing the record keeping for all personnel information and will specify what information should be collected and how it should be stored and secured. Employees have a responsibility to make sure their personnel records are up to date and should make any changes pertaining to the following through MyHR: Name Address Telephone Number Marital Status Number of dependents Beneficiary designati