Preview
5/21/2015 3:01:00 PM
Velva L. Price
District Clerk
Travis County
NO. D-1-GN-14-005419 D-1-GN-14-005419
OPSMD, INC., § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
VS. §
§ TRAVIS COUNTY, TEXAS
MEDIGAIN, LLC, GREG HACKNEY, = §
AND PRUDENTIAL INVESTMENTS — §
MANAGEMENT, INC. D/B/A 8
PRUDENTIAL CAPITAL GROUP, §
8
Defendants. § 98th JUDICIAL DISTRICT
PLAINTIFF'S MOTION TO ENTER SHOW CAUSE ORDER
Plaintiff, OpsMD, Inc. (“Plaintiff”), files this its Motion to Enter Show Cause
Order and respectfully shows the Court as follows:
L Background
1. On April 15, 2015, counsel for Plaintiff filed a Motion to Compel
Discovery Responses (“Motion to Compel”) from Defendants MediGain, LLC and Greg
Hackney (together, “Defendants”), who had failed and refused to withdraw their
groundless objections to Plaintiff's discovery requests and to produce all responsive
non-privileged documents. (See copy at Exhibit 1.) In a hearing on April 28, 2015,
Judge Gisela Triana signed an Order Granting Plaintiff's Motion to Compel Discovery
(“Order”), which overruled Defendants’ groundless objections and ordered Defendants
to produce all non-privileged documents to Plaintiff on or before May 19, 2015. (See
copy at Exhibit 2.)
Motion To Enter Show Cause Order Page 1 of 3
2095218.2. Instead of producing all responsive, non-privileged documents,
Defendants’ counsel sent an email to Plaintiff’s counsel on May 19, 2015, at 4:23 PM,
indicating that Plaintiff was “still collecting and reviewing documents....” (A true and
correct copy of that email exchange is attached at Exhibit 3.)
3. Plaintiff respectfully submits that Defendants’ blatant acts of defiance
with regard to the discovery requests and the Court’s subsequent Order are acts of
willful contempt. Plaintiff asks that this Court issue an order that requires Defendant
Greg Hackney, on his own behalf and on behalf of Defendant MediGain, LLC, to appear
and show cause as to why he should not be fined and jailed until he purges himself
from contempt of Court. Plaintiff also asks for an award of reasonable attorneys’ fees
and expenses incurred as a result of Defendants’ willful contempt of court.
WHEREFORE, PREMISES CONSIDERED, Plaintiff OpsMD, Inc. asks this
Court to grant its Motion to Enter Show Cause Order, to award Plaintiff a reasonable
attorneys’ fee, and to grant to Plaintiff all other relief to which it may be justly entitled.
Motion To Enter Show Cause Order Page 2 of 3
2095218.1Respectfully submitted,
DuBOIS, BRYANT & CAMPBELL, LLP
303 Colorado Street, Suite 2300
Austin, TX 78701
(612) 457-8000 __
(612) 457-8008 (Facsimile)
o x }
By:_ x _. Z
“~ J. David Rowe ZZ
State Bar No. 00794564 (-”
drowe@dbclip.com
Seth E. Meisel
State Bar No. 24037089
smeisel@dbellp.com
ATTORNEYS FOR PLAINTIFF
OPSMD, INC.
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing document has been served on
the following by fax or electronic service on this 21st day of May, 2015:
Christopher J. Schwegmann
cschwegmann@lynnllp.com
LYNN TILLOTSON PINKER & Cox, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
(214) 981-3839 (Facsimile)
47
“Seth E. Meisel
Motion To Enter Show Cause Order Page 3 of 3
2095218.14/15/2015 4:40:18 PM
Velva L. Price
District Clerk
Travis County
NO, D-1-GN-14-005419 D-1-GN-14-008419
OPSMD, INC., IN THE DISTRICT COURT OF
Plaintiff,
VS.
TRAVIS COUNTY, TEXAS
MEDIGAIN, LLC, GREG HACKNEY,
AND PRUDENTIAL INVESTMENTS
MANAGEMENT, INC, D/B/A
PRUDENTIAL CAPITAL GROUP,
Defendants.
an un OR Un UD A A un uA ap un iA
98th JUDICIAL DISTRICT
MOTION TO COMPEL DISCOVERY RESPONSES
Plaintiff, OpsMD, Inc. (“Plaintiff”), files this its Motion to Compel Discovery
Responses from Defendants, MediGain, LLC and Greg Hackney, and respectfully
shows the Court as follows:
L Background
1. On February 9, 2015, Plaintiff served its First Set of Interrogatories, First
Requests for Admissions, and First Requests for Production of Documents (the
“Discovery Requests”) on Defendants, MediGain, LLC and Greg Hackney
2. Defendants failed to provide written responses to the Discovery Requests
within thirty (30) days of service.
3. On March 17, 2015, Plaintiff's counsel contacted Defendants’ counsel by
email to inquire about the overdue discovery responses.2, On March 18, 2015, after
‘ True and correct copies of Plaintiffs Discovery Requests are attached hereto as Exhibit 1,
? A true and correct copy of David Rowe’s email of March 17, 2015, is attached hereto as Exhibit 2.
EXHIBIT
i 4
Motion ‘To Compel Discovery Responses
2070465.1speaking with Defendants’ counsel by telephone, Plaintiff’s counsel agreed to extend
Defendants’ deadline to respond to the Discovery Requests until April 1, 2015.3
4, On March 30, 2015, Defendants’ counsel requested and Plaintiff's counsel
granted another extension of Defendants’ deadline to respond to the Discovery
Requests.4
5. On April 3, 2015, Defendants served their written responses to the
Discovery Requests.? After reviewing Defendants’ responses, Plaintiff determined that
Defendants’ responses were materially deficient in several respects. So on April 7, 2015,
Plaintiff's counsel sent a letter to Defendants’ counsel complaining about the deficient
discovery responses. On April 10, 2015, and again on April 13, 2015, Plaintiff’s counsel
and Defendants’ counsel spoke on the telephone regarding the discovery responses,
and Plaintiff's counsel requested a commitment from Defendants’ counsel that
Defendants withdraw their groundless objections and produce all responsive non-
privileged documents within seven days. As of the date of this Motion, however,
Defendants have failed or refused to substantively address the discovery issues.
Plaintiff therefore urges this Motion to Compel.
IL, Argument and Authorities
A. Defendants’ “General” and “Subject to” Objections are Improper
6. As an initial matter, Defendants set forth a series of boilerplate
“General Objections” at the beginning of each set of answers and responses. Each
3 A truc and correct copy of David Rowe’s email of March 18, 2015, is attached hereto as Exhibit 3.
* A true and correct copy of David Rowe’s email of March 30, 2015, is attached hereto as Ex 4,
* True and correct copies of the responses are attached hereto as Exhibit 5.
© A true and correct copy of Seth Meisel’s letter of April 7, 2015 is attached hereto as Exhibit 6.
Motion To Compel Discovery Responses Page 2 of 8
2070465.1interrogatory is answered “subject to” these general objections. And to the extent
Defendants indicate a willingness to produce “relevant” documents responsive to
any particular document request, each document production is offered “subject to”
Defendants’ general objections.
7. These “general” and “subject to” objections violate Texas Rule of Civil
Procedure 193.2(a), which requires the responding party to “state...the extent to
which the party is refusing to comply with the request” and to “state specifically the
legal and factual basis for the objection.” | Faced with Defendants’ general
objections, it is impossible for Plaintiff to know what information is being withheld
and, if information is withheld, why. Accordingly, this form of objection fails to
meet the specificity requirement set forth in Rule 193.2(a).
8. In addition, Defendants’ general objections are hypothetical, and
hypothetical objections violate Rule 192.3(c), which limits objections to those for
which “a good faith factual and legal basis. ..exists at the time the objection is made.”
9. Further, these “general” and “subject to” objections violate Rule
191.3(c)’s requirement that:
The signature of an attorney or party on a discovery
request, notice, response, or objection constitutes a
certification that to the best of the signer’s knowledge,
information, and belief, formed after a reasonable inquiry,
the request, notice, response, or objection:
(1) is consistent with the rules of civil procedure and
these discovery rules and warranted by existing law or a
Motion To Compel Discovery Responses Page 3 of 8
2070465.1good faith argument for the extension, modification, or
reversal or existing law;
(2). has a good faith factual basis;
(3) is not interposed for any improper purpose...,
TEX. R. Cv. P.191.3(¢).
10. For these reasons, Plaintiff asks the Court to overrule all of Defendants’
“general” and “subject to” objections and to compel Defendants to provide full and
complete answers to each interrogatory and provide full and complete responses to
each request for production and each request for admission to which Defendants
assert these improper objections.
B. Defendants Should Be Compelled to Produce All Responsive Non-
Privileged Documents Regardless of Ultimate Admissibility
11. In response to many of Plaintiffs document requests, Defendants state
that they “will produce relevant, non-privileged documents responsive to [the] Request,
if any.” The inclusion of the word “relevant” in Defendants’ stock response suggests
that Defendants will be producing something less than all documents responsive to the
requests.
12. Under Rule 192.3(a), “a party may obtain discovery regarding any matter
that is not privileged and is relevant to the subject matter of the pending action... It is
not a ground for objection that the information sought will be inadmissible at trial if the
information sought appears reasonably calculated to lead to the discovery of admissible
evidence.”
Motion To Compel Discovery Responses Page 4 of 8
2070465.113. Plaintiff asks the Court to strike the “relevant” qualifier from Defendants’
stock responses and order Defendants to produce all documents responsive to the
requests, whether or not those documents may ultimately be admissible.
14, Further, in response to certain specific document requests, Defendants
have asserted improper boilerplate objections, which should be overruled.
Specifically, Defendants have asserted “vague and ambiguous” and/or relevancy
objections and stated that they will not produce documents responsive to Plaintiff's
Document Request Nos. 1, 19, 20, 21, 22, 23, 24, 26, 27, and 28 to Defendant
MediGain, and Plaintiff's Document Request Nos, 1, 2, 3, 4, 14, 15, 16, 17, 18, and 19
to Defendant Hackney (collectively, the “Disputed Requests”).
15. These Disputed Requests seek (1) information regarding the terms of
Hackney’s employment with MediGain, (2) financial information and information
regarding the financial benefits that MediGain and Hackney derived at Plaintiff's
expense, and (3) information concerning other claims that have been asserted
against Defendants based on conduct similar to that perpetrated against Plaintiff.
16. In this case, Plaintiff has asserted claims based on fraudulent
inducement and tortious interference that are directly related to the financial
benefits received by Defendants both prior and subsequent to the execution of the
Asset Purchase Agreement that is at the center of this case. Moreover, evidence
regarding Defendants’ pattern of acquiring assets and failing to pay for those assets
is directly relevant to Plaintiff's claim for fraudulent inducement.
Motion To Compel Discovery Responses Page 5 of 8
2070466.117, As noted above, Rule 192.3(a) provides that “a party may obtain
discovery regarding any matter that is not privileged and is relevant to the subject
matter of the pending action..,. It is not a ground for objection that the information
sought will be inadmissible at trial if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.”
18. The Disputed Requests call for documents that are either relevant or
reasonably calculated to lead to the discovery of admissible evidence. Accordingly,
Plaintiff asks the Court to compel Defendants to produce all non-privileged documents
responsive to all document requests, including but not limited to the Disputed
Requests, within ten (10) days.
WHEREFORE, PREMISES CONSIDERED, Plaintiff OpsMD, Inc. asks that the
Court grant its motion to compel, overrule Defendants’ groundless and boilerplate
objections, and compel Defendants’ to produce all responsive non-privileged
documents within 10 days. Plaintiff further requests all such further relief to which it
may be entitled, including an award of fees under Rule 215 for having to prosecute this
Motion,
Motion To Compel Discovery Responses Page 6 of 8
2070466.1Respectfully submitted,
DuBOIS, BRYANT & CAMPBELL, LLP
303 Colorado Street, Suite 2300
Austin, TX 78701
(512) 457-8000
(612) 457-8008 (Facsimile)
oT
» tet 37 __
J. David Rowe
State Bar No. 00794564
drowe@dbellp.com
Seth E. Meisel
State Bar No. 24037089
smeisel@dbellp.com
ATTORNEYS FOR PLAINTIFF
OPSMD, INC.
CERTIFICATE OF CONFERENCE
I certify that a reasonable effort was made to resolve this dispute without the
necessity of court intervention, and the effort failed. I sent a letter to counsel for
Defendants on April 7, 2015, and twice spoke with Defendants’ counsel regarding the
discovery responses. Plaintiff has no recourse but to file this Motion to Compel.
Dated: April 4 2015,
Seth E. Meisel
Motion To Compel Discovery Responses Page 7 of 8
2070465.1CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing document has been served on
the following by fax or electronic service on this Jatt day of April, 2015:
ish
Christopher J. Schwegmann
eschwegmann@lynnllp.com
LYNN TILLOTSON PINKER & Cox, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
(214) 981-3839 (Facsimile)
LA
Seth E. Meisel
Motion ‘To Compel Discovery Responses Page 8 of 8
2070465.1APR 29 206 é
At. Yee
NO. D-1-GN-14-005419 Velva L Ban Price, tet
OPSMD, INC. § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
VS, §
§ TRAVIS COUNTY, TEXAS
MEDIGAIN, LLC, GREG HACKNEY, §
AND PRUDENTIAL INVESTMENTS §
MANAGEMENT, INC. D/B/A §
PRUDENTIAL CAPITAL GROUP 8
§
Defendants, § 98th JUDICIAL DISTRICT
ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL DISCOVERY
On the 28" day of April, 2015, the Court heard Plaintiff's Motion to Compel Discovery
Responses, Having considered the Motion, Response, the record herein, and the argument of the
parties, the Court finds and concludes that the Motion should be GRANTED,
IT IS THEREFORE ORDERED, that Defendant MediGain LLC’s General Objections to
Plaintiff's First Request for Production of Documents are overruled, Further, the implied
objections to “relevance” that eppear in response to the following requests are overruled: 2, 3, 4,
5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, & 25. Moreover, the “not relevant nor reasonably
calculated to lead to the discovery of admissible evidence” objections that appear in response to
the following requests are overruled: 1, 19, 20, 21, 22, 23, 24, 26, 27, & 28,
IT IS FURTHER ORDERED, that Defendant Greg Hackney’s General Objections to
Plaintiff s First Request for Production of Documents are overruled. Further, the implied
objections to “relevance” that appear in response to the following requests are overruled: 5, 11,
12, & 13, Moreover, the “not relevant nor reasonably calculated to lead to the discovery of
20811001
EXHIBIT
a
4
5admissible evidence” objections that appear in response to the following requests are overruled:
1, 2, 3,4, 14, 15, 16,17, 18, & 19.
IT IS FURTHER ORDERED, that Defendants MediGain, LLC and Greg Hackney shall
produce all non-privileged, responsive documents to Plaintiff on or before May 19, 2015.
Signed this "2 4 day ot_ Ep 2015.
GISELA TRIANA
DISTRICT JUDGE
2081100.1AGREED AS TO FORM:
on -
SO os we
J, David Rowe
Attorney for Plaintiff
Chris Schwegmann
Attorney for Defendants MediGain, LLC
and Greg Hackney
2081100.Renee Soape
From: David Rowe
Sent: Tuesday, May 19, 2015 5:21 PM
To: Chris Schwegmann
Ce: Seth Meisel; Jackie Taylor; Emily Luthy
Subject: RE: MediGain, et al/OpsMD
Attachments: Order Granting Plf Motion to Compel Discovery 20150429.PDF
Importance: High
Chris,
This is completely unacceptable. The Court's order required your clients to produce all non-privileged responsive
documents by May 19, 2015. The Court did not authorize your clients to amend their responses to raise new objections,
nor did the Order state that an email letting me know you plan to produce within the next 14 days will suffice. If you
don’t withdraw the new objections and produce all non-privileged responsive documents by 11:59 p.m. tonight, we'll
seek sanctions and/or an order of contempt for willfully violating the Court's order.
David Rowe
512.381.8020
-----Original Message-----
From: Chris Schwegmann [mailto:cschwegmann@lynnilp.com]
Sent: Tuesday, May 19, 2015 4:23 PM
To: David Rowe
Subject: Re: MediGain, et al/OpsMD
David -
A few quick comments:
1. We are still collecting and reviewing documents, but hope to supplement our production within 14 days.
2. Let’s meet and confer on a few of the requests; we don’t intend to withhold any documents, but for some of the
requests, | want a better understanding of what you are looking for.
3. | think we should enter into a simple confidentiality agreement/protective order to protect disclosure of some of the
financial documents.
Finally, we are still putting together a settlement offer along the lines of what we discussed in court. The delay is mostly
my fault; I’ve been finishing discovery in a different case that goes to trial in June. | hope to get you that settlement
offer within the next 7 days.
Call/email with questions.
Regards,
Chris Schwegmann | Partner
LynnTillotsonPinkerCox
Direct: 214 981 3835 EXHIBIT
Cell: 214 893 6689 |
; _3Fax: 214 981 3839
cjs@lynnilp.com
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
www.lynnilp.com
From: Natalie Stallbohm >
Date: Tuesday, May 19, 2015 at 4:19 PM
To: "drowe @dbcllp.com" >
Cc: Chris Schwegmann >, Scott Smoot
>
Subject: MediGain, et al/OpsMD
All Counsel of Record:
Please see the attached discovery in the above referenced matter.
Respectfully served,
NATALIE STALLBOHM | Assistant
for Christopher J. Schwegmann, Jeremy A. Fielding and Murre G. Martindale
LynnTillotsonPinkerCox
Direct 214 981 3833
Fax 214 981 3839
nstallbohm @lynnllp.com
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
www.lynnilp.com
Preview
5/21/2015 3:01:00 PM Velva L. Price District Clerk Travis County NO. D-1-GN-14-005419 D-1-GN-14-005419 OPSMD, INC., § IN THE DISTRICT COURT OF § Plaintiff, § § VS. § § TRAVIS COUNTY, TEXAS MEDIGAIN, LLC, GREG HACKNEY, = § AND PRUDENTIAL INVESTMENTS — § MANAGEMENT, INC. D/B/A 8 PRUDENTIAL CAPITAL GROUP, § 8 Defendants. § 98th JUDICIAL DISTRICT PLAINTIFF'S MOTION TO ENTER SHOW CAUSE ORDER Plaintiff, OpsMD, Inc. (“Plaintiff”), files this its Motion to Enter Show Cause Order and respectfully shows the Court as follows: L Background 1. On April 15, 2015, counsel for Plaintiff filed a Motion to Compel Discovery Responses (“Motion to Compel”) from Defendants MediGain, LLC and Greg Hackney (together, “Defendants”), who had failed and refused to withdraw their groundless objections to Plaintiff's discovery requests and to produce all responsive non-privileged documents. (See copy at Exhibit 1.) In a hearing on April 28, 2015, Judge Gisela Triana signed an Order Granting Plaintiff's Motion to Compel Discovery (“Order”), which overruled Defendants’ groundless objections and ordered Defendants to produce all non-privileged documents to Plaintiff on or before May 19, 2015. (See copy at Exhibit 2.) Motion To Enter Show Cause Order Page 1 of 3 2095218.2. Instead of producing all responsive, non-privileged documents, Defendants’ counsel sent an email to Plaintiff’s counsel on May 19, 2015, at 4:23 PM, indicating that Plaintiff was “still collecting and reviewing documents....” (A true and correct copy of that email exchange is attached at Exhibit 3.) 3. Plaintiff respectfully submits that Defendants’ blatant acts of defiance with regard to the discovery requests and the Court’s subsequent Order are acts of willful contempt. Plaintiff asks that this Court issue an order that requires Defendant Greg Hackney, on his own behalf and on behalf of Defendant MediGain, LLC, to appear and show cause as to why he should not be fined and jailed until he purges himself from contempt of Court. Plaintiff also asks for an award of reasonable attorneys’ fees and expenses incurred as a result of Defendants’ willful contempt of court. WHEREFORE, PREMISES CONSIDERED, Plaintiff OpsMD, Inc. asks this Court to grant its Motion to Enter Show Cause Order, to award Plaintiff a reasonable attorneys’ fee, and to grant to Plaintiff all other relief to which it may be justly entitled. Motion To Enter Show Cause Order Page 2 of 3 2095218.1Respectfully submitted, DuBOIS, BRYANT & CAMPBELL, LLP 303 Colorado Street, Suite 2300 Austin, TX 78701 (612) 457-8000 __ (612) 457-8008 (Facsimile) o x } By:_ x _. Z “~ J. David Rowe ZZ State Bar No. 00794564 (-” drowe@dbclip.com Seth E. Meisel State Bar No. 24037089 smeisel@dbellp.com ATTORNEYS FOR PLAINTIFF OPSMD, INC. CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing document has been served on the following by fax or electronic service on this 21st day of May, 2015: Christopher J. Schwegmann cschwegmann@lynnllp.com LYNN TILLOTSON PINKER & Cox, LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 (214) 981-3839 (Facsimile) 47 “Seth E. Meisel Motion To Enter Show Cause Order Page 3 of 3 2095218.14/15/2015 4:40:18 PM Velva L. Price District Clerk Travis County NO, D-1-GN-14-005419 D-1-GN-14-008419 OPSMD, INC., IN THE DISTRICT COURT OF Plaintiff, VS. TRAVIS COUNTY, TEXAS MEDIGAIN, LLC, GREG HACKNEY, AND PRUDENTIAL INVESTMENTS MANAGEMENT, INC, D/B/A PRUDENTIAL CAPITAL GROUP, Defendants. an un OR Un UD A A un uA ap un iA 98th JUDICIAL DISTRICT MOTION TO COMPEL DISCOVERY RESPONSES Plaintiff, OpsMD, Inc. (“Plaintiff”), files this its Motion to Compel Discovery Responses from Defendants, MediGain, LLC and Greg Hackney, and respectfully shows the Court as follows: L Background 1. On February 9, 2015, Plaintiff served its First Set of Interrogatories, First Requests for Admissions, and First Requests for Production of Documents (the “Discovery Requests”) on Defendants, MediGain, LLC and Greg Hackney 2. Defendants failed to provide written responses to the Discovery Requests within thirty (30) days of service. 3. On March 17, 2015, Plaintiff's counsel contacted Defendants’ counsel by email to inquire about the overdue discovery responses.2, On March 18, 2015, after ‘ True and correct copies of Plaintiffs Discovery Requests are attached hereto as Exhibit 1, ? A true and correct copy of David Rowe’s email of March 17, 2015, is attached hereto as Exhibit 2. EXHIBIT i 4 Motion ‘To Compel Discovery Responses 2070465.1speaking with Defendants’ counsel by telephone, Plaintiff’s counsel agreed to extend Defendants’ deadline to respond to the Discovery Requests until April 1, 2015.3 4, On March 30, 2015, Defendants’ counsel requested and Plaintiff's counsel granted another extension of Defendants’ deadline to respond to the Discovery Requests.4 5. On April 3, 2015, Defendants served their written responses to the Discovery Requests.? After reviewing Defendants’ responses, Plaintiff determined that Defendants’ responses were materially deficient in several respects. So on April 7, 2015, Plaintiff's counsel sent a letter to Defendants’ counsel complaining about the deficient discovery responses. On April 10, 2015, and again on April 13, 2015, Plaintiff’s counsel and Defendants’ counsel spoke on the telephone regarding the discovery responses, and Plaintiff's counsel requested a commitment from Defendants’ counsel that Defendants withdraw their groundless objections and produce all responsive non- privileged documents within seven days. As of the date of this Motion, however, Defendants have failed or refused to substantively address the discovery issues. Plaintiff therefore urges this Motion to Compel. IL, Argument and Authorities A. Defendants’ “General” and “Subject to” Objections are Improper 6. As an initial matter, Defendants set forth a series of boilerplate “General Objections” at the beginning of each set of answers and responses. Each 3 A truc and correct copy of David Rowe’s email of March 18, 2015, is attached hereto as Exhibit 3. * A true and correct copy of David Rowe’s email of March 30, 2015, is attached hereto as Ex 4, * True and correct copies of the responses are attached hereto as Exhibit 5. © A true and correct copy of Seth Meisel’s letter of April 7, 2015 is attached hereto as Exhibit 6. Motion To Compel Discovery Responses Page 2 of 8 2070465.1interrogatory is answered “subject to” these general objections. And to the extent Defendants indicate a willingness to produce “relevant” documents responsive to any particular document request, each document production is offered “subject to” Defendants’ general objections. 7. These “general” and “subject to” objections violate Texas Rule of Civil Procedure 193.2(a), which requires the responding party to “state...the extent to which the party is refusing to comply with the request” and to “state specifically the legal and factual basis for the objection.” | Faced with Defendants’ general objections, it is impossible for Plaintiff to know what information is being withheld and, if information is withheld, why. Accordingly, this form of objection fails to meet the specificity requirement set forth in Rule 193.2(a). 8. In addition, Defendants’ general objections are hypothetical, and hypothetical objections violate Rule 192.3(c), which limits objections to those for which “a good faith factual and legal basis. ..exists at the time the objection is made.” 9. Further, these “general” and “subject to” objections violate Rule 191.3(c)’s requirement that: The signature of an attorney or party on a discovery request, notice, response, or objection constitutes a certification that to the best of the signer’s knowledge, information, and belief, formed after a reasonable inquiry, the request, notice, response, or objection: (1) is consistent with the rules of civil procedure and these discovery rules and warranted by existing law or a Motion To Compel Discovery Responses Page 3 of 8 2070465.1good faith argument for the extension, modification, or reversal or existing law; (2). has a good faith factual basis; (3) is not interposed for any improper purpose..., TEX. R. Cv. P.191.3(¢). 10. For these reasons, Plaintiff asks the Court to overrule all of Defendants’ “general” and “subject to” objections and to compel Defendants to provide full and complete answers to each interrogatory and provide full and complete responses to each request for production and each request for admission to which Defendants assert these improper objections. B. Defendants Should Be Compelled to Produce All Responsive Non- Privileged Documents Regardless of Ultimate Admissibility 11. In response to many of Plaintiffs document requests, Defendants state that they “will produce relevant, non-privileged documents responsive to [the] Request, if any.” The inclusion of the word “relevant” in Defendants’ stock response suggests that Defendants will be producing something less than all documents responsive to the requests. 12. Under Rule 192.3(a), “a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action... It is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Motion To Compel Discovery Responses Page 4 of 8 2070465.113. Plaintiff asks the Court to strike the “relevant” qualifier from Defendants’ stock responses and order Defendants to produce all documents responsive to the requests, whether or not those documents may ultimately be admissible. 14, Further, in response to certain specific document requests, Defendants have asserted improper boilerplate objections, which should be overruled. Specifically, Defendants have asserted “vague and ambiguous” and/or relevancy objections and stated that they will not produce documents responsive to Plaintiff's Document Request Nos. 1, 19, 20, 21, 22, 23, 24, 26, 27, and 28 to Defendant MediGain, and Plaintiff's Document Request Nos, 1, 2, 3, 4, 14, 15, 16, 17, 18, and 19 to Defendant Hackney (collectively, the “Disputed Requests”). 15. These Disputed Requests seek (1) information regarding the terms of Hackney’s employment with MediGain, (2) financial information and information regarding the financial benefits that MediGain and Hackney derived at Plaintiff's expense, and (3) information concerning other claims that have been asserted against Defendants based on conduct similar to that perpetrated against Plaintiff. 16. In this case, Plaintiff has asserted claims based on fraudulent inducement and tortious interference that are directly related to the financial benefits received by Defendants both prior and subsequent to the execution of the Asset Purchase Agreement that is at the center of this case. Moreover, evidence regarding Defendants’ pattern of acquiring assets and failing to pay for those assets is directly relevant to Plaintiff's claim for fraudulent inducement. Motion To Compel Discovery Responses Page 5 of 8 2070466.117, As noted above, Rule 192.3(a) provides that “a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action..,. It is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” 18. The Disputed Requests call for documents that are either relevant or reasonably calculated to lead to the discovery of admissible evidence. Accordingly, Plaintiff asks the Court to compel Defendants to produce all non-privileged documents responsive to all document requests, including but not limited to the Disputed Requests, within ten (10) days. WHEREFORE, PREMISES CONSIDERED, Plaintiff OpsMD, Inc. asks that the Court grant its motion to compel, overrule Defendants’ groundless and boilerplate objections, and compel Defendants’ to produce all responsive non-privileged documents within 10 days. Plaintiff further requests all such further relief to which it may be entitled, including an award of fees under Rule 215 for having to prosecute this Motion, Motion To Compel Discovery Responses Page 6 of 8 2070466.1Respectfully submitted, DuBOIS, BRYANT & CAMPBELL, LLP 303 Colorado Street, Suite 2300 Austin, TX 78701 (512) 457-8000 (612) 457-8008 (Facsimile) oT » tet 37 __ J. David Rowe State Bar No. 00794564 drowe@dbellp.com Seth E. Meisel State Bar No. 24037089 smeisel@dbellp.com ATTORNEYS FOR PLAINTIFF OPSMD, INC. CERTIFICATE OF CONFERENCE I certify that a reasonable effort was made to resolve this dispute without the necessity of court intervention, and the effort failed. I sent a letter to counsel for Defendants on April 7, 2015, and twice spoke with Defendants’ counsel regarding the discovery responses. Plaintiff has no recourse but to file this Motion to Compel. Dated: April 4 2015, Seth E. Meisel Motion To Compel Discovery Responses Page 7 of 8 2070465.1CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing document has been served on the following by fax or electronic service on this Jatt day of April, 2015: ish Christopher J. Schwegmann eschwegmann@lynnllp.com LYNN TILLOTSON PINKER & Cox, LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 (214) 981-3839 (Facsimile) LA Seth E. Meisel Motion ‘To Compel Discovery Responses Page 8 of 8 2070465.1APR 29 206 é At. Yee NO. D-1-GN-14-005419 Velva L Ban Price, tet OPSMD, INC. § IN THE DISTRICT COURT OF § Plaintiff, § § VS, § § TRAVIS COUNTY, TEXAS MEDIGAIN, LLC, GREG HACKNEY, § AND PRUDENTIAL INVESTMENTS § MANAGEMENT, INC. D/B/A § PRUDENTIAL CAPITAL GROUP 8 § Defendants, § 98th JUDICIAL DISTRICT ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL DISCOVERY On the 28" day of April, 2015, the Court heard Plaintiff's Motion to Compel Discovery Responses, Having considered the Motion, Response, the record herein, and the argument of the parties, the Court finds and concludes that the Motion should be GRANTED, IT IS THEREFORE ORDERED, that Defendant MediGain LLC’s General Objections to Plaintiff's First Request for Production of Documents are overruled, Further, the implied objections to “relevance” that eppear in response to the following requests are overruled: 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, & 25. Moreover, the “not relevant nor reasonably calculated to lead to the discovery of admissible evidence” objections that appear in response to the following requests are overruled: 1, 19, 20, 21, 22, 23, 24, 26, 27, & 28, IT IS FURTHER ORDERED, that Defendant Greg Hackney’s General Objections to Plaintiff s First Request for Production of Documents are overruled. Further, the implied objections to “relevance” that appear in response to the following requests are overruled: 5, 11, 12, & 13, Moreover, the “not relevant nor reasonably calculated to lead to the discovery of 20811001 EXHIBIT a 4 5admissible evidence” objections that appear in response to the following requests are overruled: 1, 2, 3,4, 14, 15, 16,17, 18, & 19. IT IS FURTHER ORDERED, that Defendants MediGain, LLC and Greg Hackney shall produce all non-privileged, responsive documents to Plaintiff on or before May 19, 2015. Signed this "2 4 day ot_ Ep 2015. GISELA TRIANA DISTRICT JUDGE 2081100.1AGREED AS TO FORM: on - SO os we J, David Rowe Attorney for Plaintiff Chris Schwegmann Attorney for Defendants MediGain, LLC and Greg Hackney 2081100.Renee Soape From: David Rowe Sent: Tuesday, May 19, 2015 5:21 PM To: Chris Schwegmann Ce: Seth Meisel; Jackie Taylor; Emily Luthy Subject: RE: MediGain, et al/OpsMD Attachments: Order Granting Plf Motion to Compel Discovery 20150429.PDF Importance: High Chris, This is completely unacceptable. The Court's order required your clients to produce all non-privileged responsive documents by May 19, 2015. The Court did not authorize your clients to amend their responses to raise new objections, nor did the Order state that an email letting me know you plan to produce within the next 14 days will suffice. If you don’t withdraw the new objections and produce all non-privileged responsive documents by 11:59 p.m. tonight, we'll seek sanctions and/or an order of contempt for willfully violating the Court's order. David Rowe 512.381.8020 -----Original Message----- From: Chris Schwegmann [mailto:cschwegmann@lynnilp.com] Sent: Tuesday, May 19, 2015 4:23 PM To: David Rowe Subject: Re: MediGain, et al/OpsMD David - A few quick comments: 1. We are still collecting and reviewing documents, but hope to supplement our production within 14 days. 2. Let’s meet and confer on a few of the requests; we don’t intend to withhold any documents, but for some of the requests, | want a better understanding of what you are looking for. 3. | think we should enter into a simple confidentiality agreement/protective order to protect disclosure of some of the financial documents. Finally, we are still putting together a settlement offer along the lines of what we discussed in court. The delay is mostly my fault; I’ve been finishing discovery in a different case that goes to trial in June. | hope to get you that settlement offer within the next 7 days. Call/email with questions. Regards, Chris Schwegmann | Partner LynnTillotsonPinkerCox Direct: 214 981 3835 EXHIBIT Cell: 214 893 6689 | ; _3Fax: 214 981 3839 cjs@lynnilp.com 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 www.lynnilp.com From: Natalie Stallbohm > Date: Tuesday, May 19, 2015 at 4:19 PM To: "drowe @dbcllp.com" > Cc: Chris Schwegmann >, Scott Smoot > Subject: MediGain, et al/OpsMD All Counsel of Record: Please see the attached discovery in the above referenced matter. Respectfully served, NATALIE STALLBOHM | Assistant for Christopher J. Schwegmann, Jeremy A. Fielding and Murre G. Martindale LynnTillotsonPinkerCox Direct 214 981 3833 Fax 214 981 3839 nstallbohm @lynnllp.com 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 www.lynnilp.com