Preview
10/29/2015 8:36:07 PM
Velva L. Price
District Clerk
Travis County
Jessica Arzola
CAUSE NO. D-1-GN-14-005419 D-1-GN-14-005419
OPSMD, INC., § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § TRAVIS COUNTY, TEXAS
§
MEDIGAIN, LLC and §
GREG HACKNEY, 8
§
Defendants. § 98TH JUDICIAL DISTRICT
DEFENDANT GREG HACKNEY’S RESPONSE
TO PLAINTIFF’S MOTION TO ENTER SHOW CAUSE ORDER
Defendant Greg Hackney (“Defendant”) respectfully files this Response to Plaintiff
OPSMD, Inc.’s (“OPSMD” or “Plaintiff’) Motion to Enter Show Cause Order (the “Motion”) as
follows:
L
PRELIMINARY STATEMENT
In its Motion, Plaintiff, without legal or factual support, seeks to have Hackney “fined
and jailed” for allegedly failing to produce certain documents allegedly in his and/or his former
employer’s possession. No grounds exist for this Court to enter the Motion against Hackney.
Contrary to Plaintiffs contentions, Hackney has complied with the Court’s order granting
Plaintiff's Motion to Compel dated April 28, 2015 (the “Order”) by (1) amending his responses
to Plaintiff's document requests to state that he does not have documents responsive to certain
requests and, (2) with respect to certain other requests, supplementing his production.
Furthermore, the relief sought by Plaintiff — namely, that the Court “fine and jail” Hackney — is
wholly unsupported by Texas law. Accordingly, Hackney respectfully requests that this Court
deny Plaintiffs Motion.
DEFENDANT GREG HACKNEY’S RESPONSE TO
PLAINTIFF’S MOTION TO ENTER SHOW CAUSE ORDER PAGE 1IL.
RELEVANT BACKGROUND
On April 15, 2015, OPSMD filed its Motion to Compel Discovery Responses (“Motion
to Compel”) against Defendants—both MediGain and Hackney—complaining, among other
things, that they failed to “produce all responsive non-privileged documents” to its Requests for
Production. On April 29, 2015, this Court entered the Order, directing Defendants to “produce
all non-privileged, responsive documents to Plaintiff on or before May 19, 2015.”
On May 19, 2015, Hackney served his First Amended Objections and Responses to
Plaintiff's First Set of Request for Production (“First Am. Responses”). The First Am.
Responses unambiguously state that Hackney has no documents responsive to Plaintiff's Request
Nos. 1, 2, 3, 4, 15, 16, and 17. In addition, Defendants supplemented their document
productions on June 1, 2015 (Bates Nos. MG00207 — MG002038) and June 8, 2015 (Bates Nos.
MG002039 — MG002844). Nevertheless, on May 21, 2015, Plaintiff filed the instant motion,
asking the Court to order Hackney to “appear and show cause as to why he should not be fined
and jailed until he purges himself from contempt of Court.”
As Plaintiff is well aware, on June 9, 2015, MediGain terminated Hackney’s
employment. As a consequence of his termination, Hackney does not have access to the
MediGain email server or other MediGain servers or files containing the MediGain documents, if
any, that Plaintiff seeks. Nevertheless, and despite Defendants’ earlier document production,
Plaintiff alleged that “Hackney didn’t produce docs responsive to RFP nos. 1, 2, 3, 4, 5a, 5g, 13,
' A true and correct copy of Defendants’ First Amended Objections and Responses to Plaintiffs
First Set of Request for Production is attached hereto as Exhibit A and is incorporated for all
purposes.
DEFENDANT GREG HACKNEY’S RESPONSE TO
PLAINTIFF’S MOTION TO ENTER SHOW CAUSE ORDER PAGE 214, 15, 16, 17, 18, and 19.” Plaintiff also contends “that the docs that might be responsive to 5b,
5c, 5d, 5e, 5g, 11, and 12 are so scant as to call into question whether [Hackney] produced
everything responsive to the requests.”*
iil.
ARGUMENTS AND AUTHORITIES
A. Applicable Standards
It is well settled under Texas law that discovery sanctions must be fair and that “the
od
punishment for discovery abuse must fit the crime.” Discovery sanctions are to be measured by
two factors.” First, the court must consider whether there is a direct relationship between the
offensive conduct and the sanction.° “This means that a just sanction must be directed against
the abuse and toward remedying the prejudice caused the innocent party.”” Second, a “just”
sanction must not be excessive.* A sanction should be no more severe than necessary to satisfy
its legitimate purpose.’ For this reason, courts must consider less stringent sanctions and
whether lesser sanctions would fully promote compliance.'° Here, no sanction is necessary or
justified because, as demonstrated herein, Hackney has complied with the Court’s Order.
> A true and correct copy of October 13, 2015 email correspondence from J. David Rowe, Esq.
(“Rowe”), OPSMD’s counsel, to Michael S. Gardner, Esq. (“Gardner”) counsel for Hackney,
and Gardner’s response to same, dated October 29, 2015, are attached hereto as Exhibit B and is
incorporated for all purposes.
” See id.
4 See TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).
5 See In re Ford Motor Co., 988 S.W.2d 714, 718 (Tex. 1998).
° See TransAmerican Nat. Gas Corp., 811 S.W.2d at 917.
7 See id.
See id.
° See id.
© See id.
DEFENDANT GREG HACKNEY’S RESPONSE TO
PLAINTIFF’S MOTION TO ENTER SHOW CAUSE ORDER PAGE 3B. Hackney Has Complied With This Court’s Order.
As to each of the requests for which Plaintiff contends Hackney failed to produce
documents, Hackney has either: (1) stated that he has no responsive documents; or (2) produced
his responsive documents. Specifically, as to Plaintiff's Request Nos. 1, 2, 3, 4, 15, 16, and 17,
Hackney stated in his First Am. Responses that he has no responsive documents.'! Accordingly,
the Court should deny so much of the Motion that relies upon Hackney’s alleged failure to
comply with any of these requests. Further, as to Request Nos. 5, 11, 12, and 13, Hackney stated
in his First Am. Responses that he “will produce documents responsive to this Request,”!” which
he did on June 1 and June 8, 2015. To the extent Plaintiff contends Defendants have failed to
produce responsive documents, Plaintiff should pursue such discovery from MediGain, not
Hackney, as Hackney is no longer employed by MediGain and, therefore, does not have access
to MediGain’s documents.
As to Request Nos. 14, 18, and 19, Hackney supplemented his production on October 29,
2015, and has produced all documents in his possession, custody, or control that are responsive
to these Requests.
Because Hackney has properly responded to Plaintiffs requests and has produced
responsive documents, this Court should deny the Motion.
C. This Court Must Consider Lesser Sanctions Before Ordering Hackney To Be Fined
And Jailed.
As set forth above, when imposing a discovery sanction, the court must consider whether
there is a direct relationship between the offensive conduct and the sanction and should not
"| See Exhibit A at Pages 1-3.
” See Exhibit A at Pages 2-3.
DEFENDANT GREG HACKNEY’S RESPONSE TO
PLAINTIFF’S MOTION TO ENTER SHOW CAUSE ORDER PAGE 4impose an excessive sanction.'? Even assuming sanctions were proper against Hackney — which
they are not — Plaintiff's request for an order requiring Hackney, “on his own behalf and on
behalf of MediGain, to appear and show cause as to why he should not be fined and jailed” is
neither related to the purported offensive conduct nor necessary to promote compliance with the
Order.'* Assuming this Court finds Hackney has failed to comply with the Order, the Court must
first consider the range of other, lesser sanctions available under Rule 215.2 that would more
appropriately remedy the discovery dispute at issue.’
Hackney’s supplemental productions, amended discovery responses, and efforts to
comply with the Order also militate against an award of expenses and attorneys’ fees. Rule
215.2(b)(8) provides that an award of expenses and attorneys’ fees for discovery for failure to
comply with a court order are permitted, “unless the court finds that the failure [to comply] was
substantially justified or that other circumstances make an award of expenses unjust.”!° Hackney
has amended his discovery responses in addition to serving and supplementing documents
responsive to Plaintiff's requests for production in compliance with the Court’s Order.
8 See supra notes 3 — 5 and accompanying text.
Due to his termination from MediGain, Hackney cannot appear “on behalf of Defendant
MediGain, LLC” with respect to Plaintiff's show cause Motion because he is no longer
employed by, or affiliated with, MediGain. To the extent Plaintiff seeks relief from the Court
against Defendants, the Court must view and assess Hackney’s efforts to comply with the Order
separate and apart from those of MediGain.
'S See e.g., Scott Bader, Inc. v. Sandstone Prods., 248 S.W.3d 802, 814-816 (Tex. App—
Houston [1st Dist.] 2008, no pet.) (in a fraud and deceptive trade practices act case, upholding
trial court finding of discovery abuse, but finding trial court abused its discretion under Rule
215.2 by failing to consider the availability of lesser nonmonetary sanctions).
'© See TEX. R. Civ. P. 215.2(b)(8) (emphasis added).
DEFENDANT GREG HACKNEY’S RESPONSE TO
PLAINTIFF’S MOTION TO ENTER SHOW CAUSE ORDER PAGE 5Iv.
CONCLUSION
For the foregoing reasons, Defendant Greg Hackney respectfully requests that this Court
deny Plaintiff's Motion, and grant to Hackney such other and further relief to which he may be
justly and equitably entitled.
Respectfully submitted,
GARDNER HAAS PLLC
By:
Michael S. Gardner
Texas Bar No. 24002122
Eric P. Haas
Texas Bar No. 24050704
2828 Routh Street
Suite 660
Dallas, Texas 75201
Tel.: (214) 415-3473
michael@gardnerhaas.com
eric@gardnerhaas.com
ATTORNEYS FOR DEFENDANT
GREG HACKNEY
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served
on counsel of record for the parties in accordance with the Texas Rules of Civil Procedure on
this the 29th day of October, 2015. hha
12
Michael S. Gardner
DEFENDANT GREG HACKNEY’S RESPONSE TO
PLAINTIFF’S MOTION TO ENTER SHOW CAUSE ORDER PAGE 6EXHIBIT ANO. D-1-GN-14-005419
OPSMD, INC., IN THE DISTRICT COURT OF
Plaintiff,
v. TRAVIS COUNTY, TEXAS
MEDIGAIN, LLC, GREG HACKNEY,
AND PRUDENTIAL INVESTMENTS
MANAGEMENT, INC., D/B/A
PRUDENTIAL CAPITAL GROUP,
Defendants. 98th JUDICIAL DISTRICT
LAP QP MP LM LN OS LN MH MP
DEFENDANT GREG HACKNEY’S OBJECTIONS AND RESPONSES
TO PLAINTIFF OPSMD, INC.’S FIRST SET OF
REQUEST FOR PRODUCTION OF DOCUMENTS
TO: Plaintiff OPSMD, Inc., by and through its attorney of record, J. David Rowe, DUBOIS,
BRYANT & CAMPBELL, LLP, 303 Colorado Street, Suite 2300, Austin, Texas 78701
Greg Hackney, Defendant in the above-styled and numbered cause, hereby serves his
Objections and Responses to Plaintiffs First Set of Request for Production of Documents in
accordance with and pursuant to Rule 196 of the TEXAS RULES OF CIVIL PROCEDURE.
REQU 'S FOR PRODUCITON
REQUESTNO.1. All written employment agreements between you and MediGain.
RESPONSE:
None.
REQUEST NO.2: All letters, memos, notes, emails, or other documents that describe the
terms of your employment with MediGain.
RESPONSE:
Defendant objects to this Request because it is vague and ambiguous. Subject to the
objections, none.
DEFENDANT GREG HACKNEY’S OBJECTIONS AND RESPONSES TO
PLAINTIFF OPSMD, INC.’S FIRST SET OF REQUEST FOR PRODUCTION OF DOCUMENTS PAGE 1REQUEST NO. 3: — All agreements between you and MediGain.
RESPONSE:
Defendant objects to the Request because it is vague and ambiguous. Subject to the
objections, none.
REQUEST NO. 4: All email, letters, diary entries, notes, and memoranda that relate to or
discuss the terms of any agreements between you and MediGain.
RESPONSE:
Defendant objects to the Request because it is vague and ambiguous. Subject to the
objections, none.
REQUEST NO.5: All communications, including email, sent to or from you that discuss or
relate to any of the following topics:
MediGain’ acquisition of OPSMD, Inc.
Payment or non-payment of the Note that is the subject of this lawsuit.
April Arzate.
OPSMD, Inc.’s demand for payment.
OPSMD, Inc.’s lawsuit.
Prudential Capital Group’s investment and/ or loan.
The relationship between Prudential Capital Group and OPSMD, Inc.’s demand
for payment.
The proposed and/ or alleged conversion of OPSMD’s Note into a membership
interest in MediGain.
i. The proposed Settlement Agreement between MediGain and OPSMD, Inc.
negotiated in 2014,
Ss ep menoges
RESPONSE:
Defendant objects to subparts (f) because it is overly broad. Subject to the objection,
Defendant will produce documents responsive to the Request.
REQUEST NO. 11: All statements made by you to Prudential Capital Group that describe,
discuss, or relate to the Note at issue in this lawsuit.
RESPONSE:
Defendant will produce documents responsive to this Request.
REQUEST NO. 12: All statements made by you to Prudential Capital Group to the effect that
the Note at issue in this lawsuit is/was an equity interest rather than debt.
DEFENDANT GREG HACKNEY’S OBJECTIONS AND RESPONSES TO
PLAINTIFF OPSMD, INC.’S FIRST SET OF REQUEST FOR PRODUCTION OF DOCUMENTS PAGE 2RESPONSE:
Defendant will produce documents responsive to this Request.
REQUEST NO. 13: All financial statements provided by you to Prudential Capital Group in
connection with Prudential Capital Group's decision to invest in you.
RESPONSE:
Defendant will produce documents responsive to this Request,
REQUEST NO. 14: Records sufficient to identify and calculate all bonuses, incentives,
options, warrants, dividends, and/ or other financial benefits received by you from MediGain
and/or as a result of your relationship with MediGain between September 1, 2011 and
March 1, 2015.
RESPONSE:
Defendant will produce documents responsive to the Request.
REQUEST NO. 15: All personal financial statements for the calendar years 2011, 2012, 2013,
and 2014 (or if your accounting records are kept on an FY basis other than a calendar year,
produce annual financial statements for the fiscal years that include June 2011 to March 2015):
a. Balance sheets
b. Detailed general ledgers
c. Detailed profit and loss statements
d. Detailed cash flow statements
RESPONSE:
Defendant objects to this Request because it is vague and ambiguous. Subject to the
objections, none.
REQUEST NO. 16: Records sufficient to identify and calculate the amount of any financial
benefit you received as a result of booking the Note at issue as equity instead of debt.
RESPONSE:
None.
REQUEST NO. 17: Records sufficient to identify and calculate the amount of any financial
benefit you received at any time between January 1, 2013 and March 1, 2015 as a result of
MediGain’s refusal to pay the balance due on the Note.
DEFENDANT GREG HACKNEY’S OBJECTIONS AND RESPONSES TO
PLAINTIFF OPSMD, INC.’S FIRST SET OF REQUEST FOR PRODUCTION OF DOCUMENTS PAGE 3RESPONSE:
None.
REQUEST NO. 18: All lawsuits, petitions, complaints, counterclaims, demand letters, notes,
diary entries, journal entries, and memoranda that discuss or relate to claims made against you
between September 1, 2011 and March 1, 2015 arising out of an alleged failure to pay as
required for the acquisition of assets and/ or equity interests.
RESPONSE:
Defendant will produce documents responsive to this Request.
REQUEST NO. 19: All communications, including email, that discuss or relate to claims made
against you between September 1, 2011 and March 1, 2015 arising out of an alleged failure to
pay as required for the acquisition of assets and/ or equity interests.
RESPONSE:
Defendant will produce documents responsive to this Request.
DEFENDANT GREG HACKNEY’S OBJECTIONS AND RESPONSES TO
PLAINTIFF OPSMD, INC.’S FIRST SET OF REQUEST FOR PRODUCTION OF DOCUMENTS PAGE 4DATE: May 19, 2015
Respectfully submitted,
/s/ Christopher J. Schwegmann
Christopher J. Schwegmann
Texas Bar No. 24051315
cschwegmann@lynnllp.com
LYNN TILLOTSON PINKER & COX, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
Telephone: 214.981.3800
Facsimile: 214.981.3839
ATTORNEY FOR DEFENDANTS
MEDIGAIN, LLC, GREG HACKNEY, AND
PRUDENTIAL INVESTMENTS MANAGEMENT,
INC., D/B/A PRUDENTIAL CAPITAL GROUP.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy on the foregoing has been served on the
following via electronic mail on this May 19, 2015:
Via Electronic Mail: drowe@dbelip.com
Mr. J. David Rowe
DUBOIS, BRYANT & CAMPBELL, LLP
303 Colorado Street, Suite 2300
Austin, Texas 78701
ATTORNEY FOR PLAINTIFF
OPSMD, INc.
/s/ Christopher J. Schwegmann
Christopher J. Schwegmann
DEFENDANT GREG HACKNEY’S OBJECTIONS AND RESPONSES TO
PLAINTIFF OPSMD, INC.’S FIRST SET OF REQUEST FOR PRODUCTION OF DOCUMENTS PAGE 5EXHIBIT BThursday, October 29, 2015 at 7:07:19 PM Central Daylight Time
Subject: RE: OpsMD v MediGain & Hackney
Date: Wednesday, October 14, 2015 at 9:12:02 AM Central Daylight Time
From: David Rowe
To: Michael Gardner
cc: Eric Haas, 'dyork@grayreed.com', Emily Luthy, Jackie Taylor
Michael,
You are misinformed. Hackney did not produce the documents he was
ordered to produce. We passed the hearing on the Motion to Enter Show
Cause because we were talking settlement, not because Hackney complied.
Hackney didn’t produce docs responsive to RFP nos. 1, 2, 3, 4, 5a, 5g, 13, 14, 15,
16, 17, 18, and 19. Moreover, the docs that might be responsive to 5b, 5c, 5d, 5e,
5g, 11, and 12 are so scant as to call into question whether he produced
everything responsive to the requests.
As for the hearing dates, I am available on November 3 and 4 to appear, but I
do not agree to set your MSJ on those dates because I am about to go on
vacation for 2 weeks and will not have an opportunity to prepare a response to
the MSJ.
As for a hearing on our Motion to Enter Show Cause, do you have a preference
as to Nov 3 or 4?
David Rowe
512.381.8020
From: Michael Gardner [mailto:mg@gardnerhaas.com]
Sent: Tuesday, October 13, 2015 4:58 PM
To: David Rowe
Cc: Eric Haas; 'dyork@grayreed.com'; Emily Luthy; Jackie Taylor
Subject: Re: OpsMD v MediGain & Hackney
David,
Page 1 of 3Gardner Haas and | are admittedly new to this action, however, based on my conversations
with Hackney’s prior counsel and the file that | received from him, | understand that the
documents that Greg Hackney was ordered to produce were produced to you on June 1
(Bates Nos. MG00207-MG002038) and June 8, 2015 (Bates Nos. MG002039-MG002844),
respectively. | further understand that since then, you have not identified any document or
category of documents that you think should have been but was not produced, or
otherwise complained about the production. If you think | am misinformed, please let me
know and forward to me the relevant correspondence, etc.
Further, in her Motion to Enter Show Cause Order, plaintiff seeks an order requiring Hackney
“to appear and show cause as to why he should not be fined and jailed until he purges
himself from contempt of Court.” Without waiving other responses in opposition to the
motion, given that Hackney complied with the Court's order over four months ago, the
motion is moot.
As for Hackney’s deposition, | will confer with my client and provide you with available
dates for deposition, however, given the above facts, we disagree with your position that
the hearing on Hackney’s MSJ should take place only after his deposition. Because the
action has been on file since January 2015 and for the other reasons set forth in the MSJ,
plaintiff has had adequate time for discovery and we intend to set the hearing on the MSJ
for the first available setting. | will try to set it for Nov. 3 or 4, since you are available then.
Regards,
Michael $. Gardner
Pariner
Gardner Haas
(214) 415-3473
Michoel@Gardnerhiags.com
vCard
2828 Routh Street
Suite 660
Dailas, Texas 75201
www.garcnerhags.com
From: David Rowe
Page 2 of 3Date: Tuesday, October 13, 2015 at 12:18 PM
To: Michael Gardner
Cc: Eric Haas , Drew York , Emily Luthy ,
Jackie Taylor
Subject: OpsMD v MediGain & Hackney
Michael,
We received Hackney’s No Evidence MSJ yesterday. Before we schedule a
hearing on it, we’ll need Mr. Hackney to produce the documents that he was
Ordered to produce back on April 29'*, We'll also need to take his deposition.
Toward those ends, please let me know whether you prefer to have a hearing
on OpsMD’s pending Motion to Enter Show Cause Order (copy attached) on
Nov 2,3 or the morning of the 4'", Please also give me some potential
deposition dates for Mr. Hackney during the week of November 16th,
David Rowe
512-381-8020
Page 3 of 3GH! GARDNER HAAS
October 29, 2015
ViA EMAIL (DROWE@DBCLLP.COM)
Mr. J. David Rowe, Esq.
DuBois, Bryant & Campbell, L.L.P.
303 Colorado Street, Suite 2300
Austin, Texas 78701
Re: | OPSMD v. MediGain LLC, et al.
Dear David:
This letter responds to your email to me dated October 14, 2015, related to plaintiffs Motion for
Show Cause Order. I am writing in an attempt address the concerns as set forth in your email
and to understand and narrow (if not eliminate) the issues that are the subject of plaintiff's show
cause motion.
According you your email, you take issue with Mr. Hackney’s document production in response
to plaintiff's First Request for Production of Documents Nos. 1 — 5 and 11 — 19. I will address
each of those Requests below. First, on May 19, 2015, Mr. Hackney served his First Amended
Objections and Responses to Plaintiffs First Set of Request for Production (“First Am.
Responses”). The First Am. Responses state that Mr. Hackney has no documents responsive to
Plaintiff's Request Nos. 1, 2, 3, 4, 15, 16, and 17. These responses comply with Texas Rule of
Civil Procedure 196 and the Court’s Order Granting Plaintiff's Motion to Compel Discovery
dated April 29, 2015 (the “Order”). If you contend that Mr. Hackney is presently in violation of
the Order with respect to those Requests, as you state in your email to me dated October 14,
2015, please explain why.
Request Nos. 5, 11, 12, and 13. Mr. Hackney does not have any documents responsive to
Request Nos. 5, 11, 12 and 13 that have not previously been produced by him and/or MediGain.
As you are aware, Mr. Hackney is no longer employed by MediGain and, therefore, he does not
have access to the MediGain email server or other MediGain servers or files where documents
responsive to these Requests, if any, may reside. Of course, given that you served this exact
Request on MediGain, you may obtain any responsive documents from MediGain, to the extent
you have not already done so to date.
Request No. 14. Hackney’s compensation from MediGain was solely in the form of salary (i.e.,
no incentives, bonuses, warrants, dividends, options, etc.), all of his compensation from
MediGain is set forth in his W-2s, which are included at Bates Nos. GH_000092 — GH_000095
BP; (214) 415-3473 |
Gardner Haas PLLC {| 2828 Row
michael@gardnerhaas.com
660 |Mr. J. David Rowe, Esq.
October 29, 2015
Page 2 of 2
in his supplemental production on October 29, 2015. After a diligent search, Mr. Hackney is
aware of no other documents in his possession that are responsive to Request No. 14.
Request Nos. 18 and 19. With respect to Request Nos. 18 and 19, we have produced certain
documents and are gathering for production other responsive documents. As an initial matter, all
documents filed in the matter styled Medvision, Inc. et al. v. Medigain, LLC, et al., C.A. No.
3:15-CV-00077-L in the United States District Court for the Northern District of Texas, Dallas
Division (the “Medvision Action”), may be downloaded from the Electronic Case Filing System
of the United States District Court for the Northern District of Texas. As for other documents
relating to the Medvision Action, I have obtained and produced the production documents that I
received from defendants’ counsel in that action. Some of the documents produced in the
Medvision Action have not been obtained because there is a Confidentiality and Protective Order
in place in the MedVision Action (attached), which governs the disclosure of those documents.
As you know, I sent a letter to counsel for the party that I understand designated the documents
as confidential, requesting consent to produce those documents to your client in the OPSMD
Action, and copied you on that correspondence. The remaining documents responsive to
Request No. 18 that are in Mr. Hackney’s possession, custody or control are included in Mr.
Hackney’s supplemental production dated October 29, 2015.
I understand that plaintiff has set its Motion for Show Cause Order for a hearing on November 3,
2015. Given the foregoing, we believe proceeding with the hearing on the Motion for Show
Cause Order would be a waste of the Court’s and the parties’ time and resources. Accordingly,
please let me know what issues, if any, you believe remain with respect to Mr. Hackney’s
responses to plaintiff's Requests Nos. 1-5 and 11-19.
Thank you in advance for your prompt attention to this important matter. Please do not hesitate
to call me should you wish to discuss this matter.
Sincerely,
Michael 8. Gardner
ce: Drew York, Esq. (dyork@grayreed.com)
BP; (214) 415-3473 |
Gardner Haas PLLC {| 2828 Row
michael@gardnerhaas.com
660 |
Preview
10/29/2015 8:36:07 PM Velva L. Price District Clerk Travis County Jessica Arzola CAUSE NO. D-1-GN-14-005419 D-1-GN-14-005419 OPSMD, INC., § IN THE DISTRICT COURT OF § Plaintiff, § § v. § TRAVIS COUNTY, TEXAS § MEDIGAIN, LLC and § GREG HACKNEY, 8 § Defendants. § 98TH JUDICIAL DISTRICT DEFENDANT GREG HACKNEY’S RESPONSE TO PLAINTIFF’S MOTION TO ENTER SHOW CAUSE ORDER Defendant Greg Hackney (“Defendant”) respectfully files this Response to Plaintiff OPSMD, Inc.’s (“OPSMD” or “Plaintiff’) Motion to Enter Show Cause Order (the “Motion”) as follows: L PRELIMINARY STATEMENT In its Motion, Plaintiff, without legal or factual support, seeks to have Hackney “fined and jailed” for allegedly failing to produce certain documents allegedly in his and/or his former employer’s possession. No grounds exist for this Court to enter the Motion against Hackney. Contrary to Plaintiffs contentions, Hackney has complied with the Court’s order granting Plaintiff's Motion to Compel dated April 28, 2015 (the “Order”) by (1) amending his responses to Plaintiff's document requests to state that he does not have documents responsive to certain requests and, (2) with respect to certain other requests, supplementing his production. Furthermore, the relief sought by Plaintiff — namely, that the Court “fine and jail” Hackney — is wholly unsupported by Texas law. Accordingly, Hackney respectfully requests that this Court deny Plaintiffs Motion. DEFENDANT GREG HACKNEY’S RESPONSE TO PLAINTIFF’S MOTION TO ENTER SHOW CAUSE ORDER PAGE 1IL. RELEVANT BACKGROUND On April 15, 2015, OPSMD filed its Motion to Compel Discovery Responses (“Motion to Compel”) against Defendants—both MediGain and Hackney—complaining, among other things, that they failed to “produce all responsive non-privileged documents” to its Requests for Production. On April 29, 2015, this Court entered the Order, directing Defendants to “produce all non-privileged, responsive documents to Plaintiff on or before May 19, 2015.” On May 19, 2015, Hackney served his First Amended Objections and Responses to Plaintiff's First Set of Request for Production (“First Am. Responses”). The First Am. Responses unambiguously state that Hackney has no documents responsive to Plaintiff's Request Nos. 1, 2, 3, 4, 15, 16, and 17. In addition, Defendants supplemented their document productions on June 1, 2015 (Bates Nos. MG00207 — MG002038) and June 8, 2015 (Bates Nos. MG002039 — MG002844). Nevertheless, on May 21, 2015, Plaintiff filed the instant motion, asking the Court to order Hackney to “appear and show cause as to why he should not be fined and jailed until he purges himself from contempt of Court.” As Plaintiff is well aware, on June 9, 2015, MediGain terminated Hackney’s employment. As a consequence of his termination, Hackney does not have access to the MediGain email server or other MediGain servers or files containing the MediGain documents, if any, that Plaintiff seeks. Nevertheless, and despite Defendants’ earlier document production, Plaintiff alleged that “Hackney didn’t produce docs responsive to RFP nos. 1, 2, 3, 4, 5a, 5g, 13, ' A true and correct copy of Defendants’ First Amended Objections and Responses to Plaintiffs First Set of Request for Production is attached hereto as Exhibit A and is incorporated for all purposes. DEFENDANT GREG HACKNEY’S RESPONSE TO PLAINTIFF’S MOTION TO ENTER SHOW CAUSE ORDER PAGE 214, 15, 16, 17, 18, and 19.” Plaintiff also contends “that the docs that might be responsive to 5b, 5c, 5d, 5e, 5g, 11, and 12 are so scant as to call into question whether [Hackney] produced everything responsive to the requests.”* iil. ARGUMENTS AND AUTHORITIES A. Applicable Standards It is well settled under Texas law that discovery sanctions must be fair and that “the od punishment for discovery abuse must fit the crime.” Discovery sanctions are to be measured by two factors.” First, the court must consider whether there is a direct relationship between the offensive conduct and the sanction.° “This means that a just sanction must be directed against the abuse and toward remedying the prejudice caused the innocent party.”” Second, a “just” sanction must not be excessive.* A sanction should be no more severe than necessary to satisfy its legitimate purpose.’ For this reason, courts must consider less stringent sanctions and whether lesser sanctions would fully promote compliance.'° Here, no sanction is necessary or justified because, as demonstrated herein, Hackney has complied with the Court’s Order. > A true and correct copy of October 13, 2015 email correspondence from J. David Rowe, Esq. (“Rowe”), OPSMD’s counsel, to Michael S. Gardner, Esq. (“Gardner”) counsel for Hackney, and Gardner’s response to same, dated October 29, 2015, are attached hereto as Exhibit B and is incorporated for all purposes. ” See id. 4 See TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). 5 See In re Ford Motor Co., 988 S.W.2d 714, 718 (Tex. 1998). ° See TransAmerican Nat. Gas Corp., 811 S.W.2d at 917. 7 See id. See id. ° See id. © See id. DEFENDANT GREG HACKNEY’S RESPONSE TO PLAINTIFF’S MOTION TO ENTER SHOW CAUSE ORDER PAGE 3B. Hackney Has Complied With This Court’s Order. As to each of the requests for which Plaintiff contends Hackney failed to produce documents, Hackney has either: (1) stated that he has no responsive documents; or (2) produced his responsive documents. Specifically, as to Plaintiff's Request Nos. 1, 2, 3, 4, 15, 16, and 17, Hackney stated in his First Am. Responses that he has no responsive documents.'! Accordingly, the Court should deny so much of the Motion that relies upon Hackney’s alleged failure to comply with any of these requests. Further, as to Request Nos. 5, 11, 12, and 13, Hackney stated in his First Am. Responses that he “will produce documents responsive to this Request,”!” which he did on June 1 and June 8, 2015. To the extent Plaintiff contends Defendants have failed to produce responsive documents, Plaintiff should pursue such discovery from MediGain, not Hackney, as Hackney is no longer employed by MediGain and, therefore, does not have access to MediGain’s documents. As to Request Nos. 14, 18, and 19, Hackney supplemented his production on October 29, 2015, and has produced all documents in his possession, custody, or control that are responsive to these Requests. Because Hackney has properly responded to Plaintiffs requests and has produced responsive documents, this Court should deny the Motion. C. This Court Must Consider Lesser Sanctions Before Ordering Hackney To Be Fined And Jailed. As set forth above, when imposing a discovery sanction, the court must consider whether there is a direct relationship between the offensive conduct and the sanction and should not "| See Exhibit A at Pages 1-3. ” See Exhibit A at Pages 2-3. DEFENDANT GREG HACKNEY’S RESPONSE TO PLAINTIFF’S MOTION TO ENTER SHOW CAUSE ORDER PAGE 4impose an excessive sanction.'? Even assuming sanctions were proper against Hackney — which they are not — Plaintiff's request for an order requiring Hackney, “on his own behalf and on behalf of MediGain, to appear and show cause as to why he should not be fined and jailed” is neither related to the purported offensive conduct nor necessary to promote compliance with the Order.'* Assuming this Court finds Hackney has failed to comply with the Order, the Court must first consider the range of other, lesser sanctions available under Rule 215.2 that would more appropriately remedy the discovery dispute at issue.’ Hackney’s supplemental productions, amended discovery responses, and efforts to comply with the Order also militate against an award of expenses and attorneys’ fees. Rule 215.2(b)(8) provides that an award of expenses and attorneys’ fees for discovery for failure to comply with a court order are permitted, “unless the court finds that the failure [to comply] was substantially justified or that other circumstances make an award of expenses unjust.”!° Hackney has amended his discovery responses in addition to serving and supplementing documents responsive to Plaintiff's requests for production in compliance with the Court’s Order. 8 See supra notes 3 — 5 and accompanying text. Due to his termination from MediGain, Hackney cannot appear “on behalf of Defendant MediGain, LLC” with respect to Plaintiff's show cause Motion because he is no longer employed by, or affiliated with, MediGain. To the extent Plaintiff seeks relief from the Court against Defendants, the Court must view and assess Hackney’s efforts to comply with the Order separate and apart from those of MediGain. 'S See e.g., Scott Bader, Inc. v. Sandstone Prods., 248 S.W.3d 802, 814-816 (Tex. App— Houston [1st Dist.] 2008, no pet.) (in a fraud and deceptive trade practices act case, upholding trial court finding of discovery abuse, but finding trial court abused its discretion under Rule 215.2 by failing to consider the availability of lesser nonmonetary sanctions). '© See TEX. R. Civ. P. 215.2(b)(8) (emphasis added). DEFENDANT GREG HACKNEY’S RESPONSE TO PLAINTIFF’S MOTION TO ENTER SHOW CAUSE ORDER PAGE 5Iv. CONCLUSION For the foregoing reasons, Defendant Greg Hackney respectfully requests that this Court deny Plaintiff's Motion, and grant to Hackney such other and further relief to which he may be justly and equitably entitled. Respectfully submitted, GARDNER HAAS PLLC By: Michael S. Gardner Texas Bar No. 24002122 Eric P. Haas Texas Bar No. 24050704 2828 Routh Street Suite 660 Dallas, Texas 75201 Tel.: (214) 415-3473 michael@gardnerhaas.com eric@gardnerhaas.com ATTORNEYS FOR DEFENDANT GREG HACKNEY CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been served on counsel of record for the parties in accordance with the Texas Rules of Civil Procedure on this the 29th day of October, 2015. hha 12 Michael S. Gardner DEFENDANT GREG HACKNEY’S RESPONSE TO PLAINTIFF’S MOTION TO ENTER SHOW CAUSE ORDER PAGE 6EXHIBIT ANO. D-1-GN-14-005419 OPSMD, INC., IN THE DISTRICT COURT OF Plaintiff, v. TRAVIS COUNTY, TEXAS MEDIGAIN, LLC, GREG HACKNEY, AND PRUDENTIAL INVESTMENTS MANAGEMENT, INC., D/B/A PRUDENTIAL CAPITAL GROUP, Defendants. 98th JUDICIAL DISTRICT LAP QP MP LM LN OS LN MH MP DEFENDANT GREG HACKNEY’S OBJECTIONS AND RESPONSES TO PLAINTIFF OPSMD, INC.’S FIRST SET OF REQUEST FOR PRODUCTION OF DOCUMENTS TO: Plaintiff OPSMD, Inc., by and through its attorney of record, J. David Rowe, DUBOIS, BRYANT & CAMPBELL, LLP, 303 Colorado Street, Suite 2300, Austin, Texas 78701 Greg Hackney, Defendant in the above-styled and numbered cause, hereby serves his Objections and Responses to Plaintiffs First Set of Request for Production of Documents in accordance with and pursuant to Rule 196 of the TEXAS RULES OF CIVIL PROCEDURE. REQU 'S FOR PRODUCITON REQUESTNO.1. All written employment agreements between you and MediGain. RESPONSE: None. REQUEST NO.2: All letters, memos, notes, emails, or other documents that describe the terms of your employment with MediGain. RESPONSE: Defendant objects to this Request because it is vague and ambiguous. Subject to the objections, none. DEFENDANT GREG HACKNEY’S OBJECTIONS AND RESPONSES TO PLAINTIFF OPSMD, INC.’S FIRST SET OF REQUEST FOR PRODUCTION OF DOCUMENTS PAGE 1REQUEST NO. 3: — All agreements between you and MediGain. RESPONSE: Defendant objects to the Request because it is vague and ambiguous. Subject to the objections, none. REQUEST NO. 4: All email, letters, diary entries, notes, and memoranda that relate to or discuss the terms of any agreements between you and MediGain. RESPONSE: Defendant objects to the Request because it is vague and ambiguous. Subject to the objections, none. REQUEST NO.5: All communications, including email, sent to or from you that discuss or relate to any of the following topics: MediGain’ acquisition of OPSMD, Inc. Payment or non-payment of the Note that is the subject of this lawsuit. April Arzate. OPSMD, Inc.’s demand for payment. OPSMD, Inc.’s lawsuit. Prudential Capital Group’s investment and/ or loan. The relationship between Prudential Capital Group and OPSMD, Inc.’s demand for payment. The proposed and/ or alleged conversion of OPSMD’s Note into a membership interest in MediGain. i. The proposed Settlement Agreement between MediGain and OPSMD, Inc. negotiated in 2014, Ss ep menoges RESPONSE: Defendant objects to subparts (f) because it is overly broad. Subject to the objection, Defendant will produce documents responsive to the Request. REQUEST NO. 11: All statements made by you to Prudential Capital Group that describe, discuss, or relate to the Note at issue in this lawsuit. RESPONSE: Defendant will produce documents responsive to this Request. REQUEST NO. 12: All statements made by you to Prudential Capital Group to the effect that the Note at issue in this lawsuit is/was an equity interest rather than debt. DEFENDANT GREG HACKNEY’S OBJECTIONS AND RESPONSES TO PLAINTIFF OPSMD, INC.’S FIRST SET OF REQUEST FOR PRODUCTION OF DOCUMENTS PAGE 2RESPONSE: Defendant will produce documents responsive to this Request. REQUEST NO. 13: All financial statements provided by you to Prudential Capital Group in connection with Prudential Capital Group's decision to invest in you. RESPONSE: Defendant will produce documents responsive to this Request, REQUEST NO. 14: Records sufficient to identify and calculate all bonuses, incentives, options, warrants, dividends, and/ or other financial benefits received by you from MediGain and/or as a result of your relationship with MediGain between September 1, 2011 and March 1, 2015. RESPONSE: Defendant will produce documents responsive to the Request. REQUEST NO. 15: All personal financial statements for the calendar years 2011, 2012, 2013, and 2014 (or if your accounting records are kept on an FY basis other than a calendar year, produce annual financial statements for the fiscal years that include June 2011 to March 2015): a. Balance sheets b. Detailed general ledgers c. Detailed profit and loss statements d. Detailed cash flow statements RESPONSE: Defendant objects to this Request because it is vague and ambiguous. Subject to the objections, none. REQUEST NO. 16: Records sufficient to identify and calculate the amount of any financial benefit you received as a result of booking the Note at issue as equity instead of debt. RESPONSE: None. REQUEST NO. 17: Records sufficient to identify and calculate the amount of any financial benefit you received at any time between January 1, 2013 and March 1, 2015 as a result of MediGain’s refusal to pay the balance due on the Note. DEFENDANT GREG HACKNEY’S OBJECTIONS AND RESPONSES TO PLAINTIFF OPSMD, INC.’S FIRST SET OF REQUEST FOR PRODUCTION OF DOCUMENTS PAGE 3RESPONSE: None. REQUEST NO. 18: All lawsuits, petitions, complaints, counterclaims, demand letters, notes, diary entries, journal entries, and memoranda that discuss or relate to claims made against you between September 1, 2011 and March 1, 2015 arising out of an alleged failure to pay as required for the acquisition of assets and/ or equity interests. RESPONSE: Defendant will produce documents responsive to this Request. REQUEST NO. 19: All communications, including email, that discuss or relate to claims made against you between September 1, 2011 and March 1, 2015 arising out of an alleged failure to pay as required for the acquisition of assets and/ or equity interests. RESPONSE: Defendant will produce documents responsive to this Request. DEFENDANT GREG HACKNEY’S OBJECTIONS AND RESPONSES TO PLAINTIFF OPSMD, INC.’S FIRST SET OF REQUEST FOR PRODUCTION OF DOCUMENTS PAGE 4DATE: May 19, 2015 Respectfully submitted, /s/ Christopher J. Schwegmann Christopher J. Schwegmann Texas Bar No. 24051315 cschwegmann@lynnllp.com LYNN TILLOTSON PINKER & COX, LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 Telephone: 214.981.3800 Facsimile: 214.981.3839 ATTORNEY FOR DEFENDANTS MEDIGAIN, LLC, GREG HACKNEY, AND PRUDENTIAL INVESTMENTS MANAGEMENT, INC., D/B/A PRUDENTIAL CAPITAL GROUP. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy on the foregoing has been served on the following via electronic mail on this May 19, 2015: Via Electronic Mail: drowe@dbelip.com Mr. J. David Rowe DUBOIS, BRYANT & CAMPBELL, LLP 303 Colorado Street, Suite 2300 Austin, Texas 78701 ATTORNEY FOR PLAINTIFF OPSMD, INc. /s/ Christopher J. Schwegmann Christopher J. Schwegmann DEFENDANT GREG HACKNEY’S OBJECTIONS AND RESPONSES TO PLAINTIFF OPSMD, INC.’S FIRST SET OF REQUEST FOR PRODUCTION OF DOCUMENTS PAGE 5EXHIBIT BThursday, October 29, 2015 at 7:07:19 PM Central Daylight Time Subject: RE: OpsMD v MediGain & Hackney Date: Wednesday, October 14, 2015 at 9:12:02 AM Central Daylight Time From: David Rowe To: Michael Gardner cc: Eric Haas, 'dyork@grayreed.com', Emily Luthy, Jackie Taylor Michael, You are misinformed. Hackney did not produce the documents he was ordered to produce. We passed the hearing on the Motion to Enter Show Cause because we were talking settlement, not because Hackney complied. Hackney didn’t produce docs responsive to RFP nos. 1, 2, 3, 4, 5a, 5g, 13, 14, 15, 16, 17, 18, and 19. Moreover, the docs that might be responsive to 5b, 5c, 5d, 5e, 5g, 11, and 12 are so scant as to call into question whether he produced everything responsive to the requests. As for the hearing dates, I am available on November 3 and 4 to appear, but I do not agree to set your MSJ on those dates because I am about to go on vacation for 2 weeks and will not have an opportunity to prepare a response to the MSJ. As for a hearing on our Motion to Enter Show Cause, do you have a preference as to Nov 3 or 4? David Rowe 512.381.8020 From: Michael Gardner [mailto:mg@gardnerhaas.com] Sent: Tuesday, October 13, 2015 4:58 PM To: David Rowe Cc: Eric Haas; 'dyork@grayreed.com'; Emily Luthy; Jackie Taylor Subject: Re: OpsMD v MediGain & Hackney David, Page 1 of 3Gardner Haas and | are admittedly new to this action, however, based on my conversations with Hackney’s prior counsel and the file that | received from him, | understand that the documents that Greg Hackney was ordered to produce were produced to you on June 1 (Bates Nos. MG00207-MG002038) and June 8, 2015 (Bates Nos. MG002039-MG002844), respectively. | further understand that since then, you have not identified any document or category of documents that you think should have been but was not produced, or otherwise complained about the production. If you think | am misinformed, please let me know and forward to me the relevant correspondence, etc. Further, in her Motion to Enter Show Cause Order, plaintiff seeks an order requiring Hackney “to appear and show cause as to why he should not be fined and jailed until he purges himself from contempt of Court.” Without waiving other responses in opposition to the motion, given that Hackney complied with the Court's order over four months ago, the motion is moot. As for Hackney’s deposition, | will confer with my client and provide you with available dates for deposition, however, given the above facts, we disagree with your position that the hearing on Hackney’s MSJ should take place only after his deposition. Because the action has been on file since January 2015 and for the other reasons set forth in the MSJ, plaintiff has had adequate time for discovery and we intend to set the hearing on the MSJ for the first available setting. | will try to set it for Nov. 3 or 4, since you are available then. Regards, Michael $. Gardner Pariner Gardner Haas (214) 415-3473 Michoel@Gardnerhiags.com vCard 2828 Routh Street Suite 660 Dailas, Texas 75201 www.garcnerhags.com From: David Rowe Page 2 of 3Date: Tuesday, October 13, 2015 at 12:18 PM To: Michael Gardner Cc: Eric Haas , Drew York , Emily Luthy , Jackie Taylor Subject: OpsMD v MediGain & Hackney Michael, We received Hackney’s No Evidence MSJ yesterday. Before we schedule a hearing on it, we’ll need Mr. Hackney to produce the documents that he was Ordered to produce back on April 29'*, We'll also need to take his deposition. Toward those ends, please let me know whether you prefer to have a hearing on OpsMD’s pending Motion to Enter Show Cause Order (copy attached) on Nov 2,3 or the morning of the 4'", Please also give me some potential deposition dates for Mr. Hackney during the week of November 16th, David Rowe 512-381-8020 Page 3 of 3GH! GARDNER HAAS October 29, 2015 ViA EMAIL (DROWE@DBCLLP.COM) Mr. J. David Rowe, Esq. DuBois, Bryant & Campbell, L.L.P. 303 Colorado Street, Suite 2300 Austin, Texas 78701 Re: | OPSMD v. MediGain LLC, et al. Dear David: This letter responds to your email to me dated October 14, 2015, related to plaintiffs Motion for Show Cause Order. I am writing in an attempt address the concerns as set forth in your email and to understand and narrow (if not eliminate) the issues that are the subject of plaintiff's show cause motion. According you your email, you take issue with Mr. Hackney’s document production in response to plaintiff's First Request for Production of Documents Nos. 1 — 5 and 11 — 19. I will address each of those Requests below. First, on May 19, 2015, Mr. Hackney served his First Amended Objections and Responses to Plaintiffs First Set of Request for Production (“First Am. Responses”). The First Am. Responses state that Mr. Hackney has no documents responsive to Plaintiff's Request Nos. 1, 2, 3, 4, 15, 16, and 17. These responses comply with Texas Rule of Civil Procedure 196 and the Court’s Order Granting Plaintiff's Motion to Compel Discovery dated April 29, 2015 (the “Order”). If you contend that Mr. Hackney is presently in violation of the Order with respect to those Requests, as you state in your email to me dated October 14, 2015, please explain why. Request Nos. 5, 11, 12, and 13. Mr. Hackney does not have any documents responsive to Request Nos. 5, 11, 12 and 13 that have not previously been produced by him and/or MediGain. As you are aware, Mr. Hackney is no longer employed by MediGain and, therefore, he does not have access to the MediGain email server or other MediGain servers or files where documents responsive to these Requests, if any, may reside. Of course, given that you served this exact Request on MediGain, you may obtain any responsive documents from MediGain, to the extent you have not already done so to date. Request No. 14. Hackney’s compensation from MediGain was solely in the form of salary (i.e., no incentives, bonuses, warrants, dividends, options, etc.), all of his compensation from MediGain is set forth in his W-2s, which are included at Bates Nos. GH_000092 — GH_000095 BP; (214) 415-3473 | Gardner Haas PLLC {| 2828 Row michael@gardnerhaas.com 660 |Mr. J. David Rowe, Esq. October 29, 2015 Page 2 of 2 in his supplemental production on October 29, 2015. After a diligent search, Mr. Hackney is aware of no other documents in his possession that are responsive to Request No. 14. Request Nos. 18 and 19. With respect to Request Nos. 18 and 19, we have produced certain documents and are gathering for production other responsive documents. As an initial matter, all documents filed in the matter styled Medvision, Inc. et al. v. Medigain, LLC, et al., C.A. No. 3:15-CV-00077-L in the United States District Court for the Northern District of Texas, Dallas Division (the “Medvision Action”), may be downloaded from the Electronic Case Filing System of the United States District Court for the Northern District of Texas. As for other documents relating to the Medvision Action, I have obtained and produced the production documents that I received from defendants’ counsel in that action. Some of the documents produced in the Medvision Action have not been obtained because there is a Confidentiality and Protective Order in place in the MedVision Action (attached), which governs the disclosure of those documents. As you know, I sent a letter to counsel for the party that I understand designated the documents as confidential, requesting consent to produce those documents to your client in the OPSMD Action, and copied you on that correspondence. The remaining documents responsive to Request No. 18 that are in Mr. Hackney’s possession, custody or control are included in Mr. Hackney’s supplemental production dated October 29, 2015. I understand that plaintiff has set its Motion for Show Cause Order for a hearing on November 3, 2015. Given the foregoing, we believe proceeding with the hearing on the Motion for Show Cause Order would be a waste of the Court’s and the parties’ time and resources. Accordingly, please let me know what issues, if any, you believe remain with respect to Mr. Hackney’s responses to plaintiff's Requests Nos. 1-5 and 11-19. Thank you in advance for your prompt attention to this important matter. Please do not hesitate to call me should you wish to discuss this matter. Sincerely, Michael 8. Gardner ce: Drew York, Esq. (dyork@grayreed.com) BP; (214) 415-3473 | Gardner Haas PLLC {| 2828 Row michael@gardnerhaas.com 660 |