Party Discovery: NEW STREAM REAL ESTATE LLC (FORMERLY KNOWN AS CHARTER OAK REAL ESTATE vs. MORGAN, FRED

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                                CAUSE NO. 20         -81721

NEW STREAM REAL ESTATE,                                  IN THE DISTRICT COURT OF
LLC, f/k/a CHARTER OAK REAL
ESTATE FUND, LLC,
     Plaintiff,

                                                         HARRIS COUNTY, TEXAS

FRED MORGAN,
DAVID HENDRICKS, and
JAMES CHARNQUIST,                                        190TH JUDICIAL DISTRICT
Defendants.


                         DEFENDANT JAMES CHARNQUIST’S
                           MOTION TO QUASH SUBPOENA


         Defendant        James     Charnquist         files his Motion         to Quash       Subpoena

pursuant to Tex. R. Civ. P. 176.3 and 176.7 and would show the Court:

         1         Counsel for judgment            plaintiffs served a subpoena            on counsel

for James         Charnquist to appear at the November                    4 hearing in this action

Ex. 1 (Subpoena).

         2         Defendant       James        Charnquist      objects    to    the   subpoena      and

he    Court   for a protective          order              pursuant        to Rule     176.7    to avoid

imposing undue burden or expense on James Charnquist. Counsel deposed

Charnquist          on   July     23,   2019      in   Corpus     Christi,      Texas.     Charnquist

explained at the deposition that he is being treated for a malignant tumor

on his bladder, uses a catheter, and has stenosis that limits his ability to
(Charnquist Deposi) at 17                        . His doctor advised him against

traveling.                       s Letter).

         3            Counsel issued this subpoena                      ter he deposed Charnquist and

was   aware                  Charnquists        physical        limitations.      ounsel      acknowledges

nquist                 inability to travel. Charnquist testified at the deposition that

he had        not traveled         to Houston           since    a mediation       in another             matter

March         2018.     Ex.      at    180;     Ex.      (email       confirming       mediation          date).     He

               that he had e to Austin                     in May or Jun           this year and that the

was physically difficult.                      Id. at 181 182.

         3            Under     Rule      176.2,       a subpoena        can    only    be    used        to compel

testimony         or     provide       documents.          Counsel        was    aware       of    Charnqui

mitation          no later than July 23 and had the opportunity to depose him on

matters raised by his pleadings                           the dentiary pleadings have                       been on

                June             A bald command                to appear and testify, without reason

other than harassment, imposes undue burden and expense on arnquist.

         4            Rule     176.3(b)       states    that     a    subpoena     may       not     be    used      for

discovery        other than           as provided        by the rule           governing      discovery.           Rule

192.1 does not permit use of subpoenas                               on parties for discovery purposes

      use this is an improper use of a subpoena, the Court should quash

         5.           Pursuant to Rule             176.6, a party objecting to a subpoena                          need

not comply with that part of the subpoena from which protection is sought
unless ordered to do so by the Court. Defendant James                   Charnquist moves

the   Court   for   protection   from     the    subpoena     and     his   appearance     on

September     1 for the reasons stated above.

        FOR   THESE        REASONS,       defendant      James      Charnquist    ask

quash                and    provide     protection    from   the    Subpoena     for    James

harnquist and for any other relief          to which heis entitled.

                                            Respectfully submitted,

                                                URFORD       ERRY

                                            /s/ Brent C. Perry

                                            Brent C. Perry
                                            State Bar No.: 15799650
                                            Matt E. Parks
                                            State Bar No. 24083622
                                            909 Fannin St., Suite 2630
                                            Houston, Texas 7701
                                            Telephone: (713) 4019790
                                            Facsimile: (713) 9937739
                                            bperry@burfordperry.com
                                            mparks@burfordperry.com
                                            Attorneys for Plaintiffand Third
                                            Party Defendant
TIFICATE OF SERVICE

          November 1, 2019 I served the foregoing document in accordance
with Tex. R. Civ. P. 21 and 21a on all counsel of record via the court’s
ing system and/or email.

Chris Di Ferrante
402 Ea       Street
Houston, Texas 77008
chris@cdflaw.com
Attorney for Plaintiff

E. F. Mano DeAyala
Buck Keenan LLP
2229 San Felipe, Suite 1000
Houston, Texas 77019
deayala@buckkeenan.com
Attorney for Defendant
David Hendricks

Robert L. Pendegraft
Pendergraft & Simon, LLP
2777 Allen Parkway, Suite 800
Houston, TX 77019
rlp@pendergraftsimon.com
Attorney for Defendant
Fred Morgan




                                                 C. Perry

                                        Brent C. Perry