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CASE NO. 2019-40237 SONIA GONZALEZ IN THE DISTRICT COURT OF V. HARRIS COUNTY, TEXAS RM TRANSPORT, INC. AND JAIME AMAYA 270TH JUDICIAL DISTRICT DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL COMES NOW, JAIME AMAYA Defendant in the above entitled and numbered cause, and files this Response to Plaintiffs’ Motion to Compel, and for such would respectfully show unto the Court the following: I. FACTUAL BACKGROUND This matter arises from an auto collision that took place on or around December 7, 2017 in Harris County, Texas. On July 23, 2019, the Plaintiffs served their First Request for Production (“attached as “Exhibit A”) and First set of Interrogatories (“attached as “Exhibit B”) on the Defendant. On September 9, 2019, the Defendant properly responded to the Plaintiff’s Requests for Production (attached here as “Exhibit C”), Interrogatories (attached here as “Exhibit D”), and produced to the Plaintiff most of his non-privileged documents concerning the accident. On January 27, 2021, the Plaintiff sent a “conferral letter” to the Defendant requesting that he withdraw his objections and provide “full and complete answers” to Plaintiff’s First Request for Production Nos. 7, 8, 9, 10, 16, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47 and 48, and Plaintiff’s Fist set of Interrogatories Nos. 3, 4, 13, 16, 18 and 24 (attached as “Exhibit E”). Plaintiff’s letter failed to specify any real substantive issues with any of the thirty-four (34) discovery responses it raised issue with. The letter simply stated that the Defendant’s responses to Request for Production “contain inappropriate, blanket objections and/or incomplete responses” and that the Defendant’s answers to Interrogatories “were incomplete and contained improper objections.” On January 29, 2021, the Defendant sent a response letter to the Plaintiff (attached as “Exhibit F”) declining to remove his properly asserted objections and stating that he prefers to resolve discovery issues outside of court. In response, the Plaintiff filed their Motion to Compel. On February 9, 2021, the Defendant sent a follow-up letter to the Plaintiff (attached as “Exhibit G”) stating that the Plaintiff still has not provided substantive arguments as to why the Defendant’s responses to discovery are insufficient, and reiterating that it prefers to resolve discovery issues without court intervention. To this date, the Plaintiff still has not provided substantive arguments as to why they believe the thirty-four (34) discovery responses it raises issues with are insufficient. II. ARGUMENTS AND AUTHORITIES Discovery is limited to matters relevant to the subject matter of a case. See Tex R. Civ. Proc. 192.3(a); Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995). Although the scope of discovery is broad, requests must be narrowly tailored to avoid including tenuous material while still obtaining necessary and pertinent information. In re CSX Corporation, National Marine, Inc., and Vectura Group, 124 S.W.3d 149, 152 (Tex. 2003); see also Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995). Responding parties are required to make complete responses to written discovery based on information reasonably available, however, they may object and refuse to answer if a request is overbroad. In re Harris, 315 S.W.3d 685, 696 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding); See Loftin v. Martin, 776 S.W.2d 145, 148- 150 (Tex.1989) (orig. proceeding). Rule 192.4(a) limits discovery if the court determines that it is “obtainable from some other source that is more convenient, less burdensome, or less expensive.” Tex R. Civ. Proc. 192.4(a). Rule 192.4(b) also limits discovery if “the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Tex R. Civ. Proc. 194(b). See In re Alford Chevrolet-Geo, 997 S.W.2d 173, 180 (Tex. 1999) (orig. proceeding). In interpreting these rules, the Texas Supreme Court has held that the scope of discovery is generally within the discretion of the trial court, but such court must make an effort to impose reasonable limits on discovery and a court abuses this discretion if it orders discovery exceeding that which is permitted by the Rules of Procedure. See in Re CSX, 124 S.W.3d at 152; see also Dillard Dep’t Stores, Inc. v. Hall 909 S.W.2d 491, 492 (Tex. 1995); see also In Re American Optical, 988 S.W.2d 711, 713 (Tex. 1998); see also Sanderson, 898 S.W.2d at 815. A. Defendant’s Objections and Answers to the Plaintiff’s Interrogatories are proper Generally, an interrogatory must be answered in full and the answering party must make a complete response based on information reasonably available to them. Tex. R. Civ. P. 193.1. However, a party may assert an objection to an interrogatory if said interrogatory asks for more information than the rules permit. An Interrogatory is improper if it requires a party to marshal all of its available proof or proof the party intends to offer at trial. Tex. R. Civ. P. 197.1; see also In re Ochoa, No. 12-04-00163, 2004 WL 1192444, at *2 (Tex. App.—Tyler May 28, 2004, orig. proceedings). Although inquiries into the general legal theories of a party are usually permitted, an interrogatory cannot be used to require a party to state all of its factual and legal assertions. Here, Plaintiff’s Interrogatories 3, 4, 13, and 18 are clearly overbroad and impermissible questions as they require the Defendant to marshal his evidence and all of his legal and factual assertions. Additionally, Defendant’s responses refer the Plaintiff to his live pleadings for his latest contentions, providing an adequate response to the Plaintiff’s inquiries. Defendant has provided complete responses to Interrogatories 16 and 24 and has not asserted any objections. It is unclear from the Plaintiff’s motion why they are asserting that the Defendant’s responses to these Interrogatories are “incomplete,” as they have not provided any substantive argument or reasoning as to why. Accordingly, Defendant has provided complete answers and/or asserted proper objections to all of Plaintiff’s Interrogatories. B. Defendant’s Objections and Responses to the Plaintiff’s Requests for Production are proper Requests for Production must be reasonably tailored to include only matters relevant to the case. In re Alford Chevrolet-Geo, 997 S.W.2d at 180; In Re American Optical, 988 S.W.2d at 713; see in re Memorial Herman Health System, 607 S.W.3d 913, 918 (Tex. App. —Houston [14th Dist.] 2020, orig. proceeding). Explicitly, Requests for Production “…must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category.” Tex R. Civ. Proc. 196.1(b). Additionally, Texas Law bars the discovery of an attorney’s work product, which includes an attorney’s documents, reports, communications, memoranda, mental impressions, conclusions, opinions, or legal theories. In re Baytown Nissan, Inc., 451 S.W.3d 140, 148 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding); See In re Fairway Methanol LLC, 515 S.W.3d 480, 489 (Tex. App. —Houston [14th Dist.] 2017, orig. proceeding). This privilege extends to all materials and all communications made by a party’s employees and representatives in anticipation of litigation. See In re Fairway Methanol at 489. Texas law also bars the discovery of attorney-client communications. Tex. R. Civ. Evid. 503(b); In re XL Specialty Ins. , 373 S.W.3d 46, 49–50 (Tex. 2012). This privilege not only protects confidential communication between the lawyer and the client, but also the discourse among their representatives. The Plaintiff’s motion assets that the Defendant’s responses to Request Nos. 7, 8, 9, 10, 16, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47 and 48 “contain inappropriate, blanket objections and/or incomplete responses.” To support this assertion, the Plaintiff only states vaguely that their discovery requests “…are reasonably calculated to lead to the discovery of admissible evidence and are within the scope of discovery permitted by Texas Rule of Civil Procedure 192.3.” The Plaintiff’s motion provides no further context or substantive argument as to why they believe twenty-eight (28) of the Defendant’s Responses to Request for Production to be insufficient. For this reason, the Defendant finds it difficult to respond directly to the Plaintiff’s motion. However, the Defendant would show this Court, based on the case law and rules presented above, that he has provided complete responses and/or asserted proper objections to the Plaintiff’s Requests for Production. C. Defendant’s Objections and Responses to the Plaintiff’s Requests for Admissions are proper On July 23, 2019, the Plaintiff served their First Set of Requests for Admissions on the Defendant. The Defendant responded fully and properly on July 21, 2019 (attached as “Exhibit H”). The Plaintiff served a second set of Request for Admissions and Production addressed to both Defendants in this matter on June 24, 2020. The Defendant again responded full and properly on July 7, 2020 (attached here as “Exhibit I”). On January 27, 2021, the Plaintiff sent a “conferral letter” to the Defendant stating that the Defendant asserted ‘incomplete answers’ and “improper objections” to Requests for Admission Nos. 2, 6, 7, and 8. The Plaintiff erroneously asserts in their motion that the Defendant “provided inappropriate, boilerplate, vague, baseless objections and repeatedly, flagrantly ignore the Texas Rules of Civil Procedure in their responses.” The Defendant contends that he provided complete responses and/or asserted correct objections to all of the Plaintiff’s Requests for Admissions. Defendant’s responses to the Plaintiff’s Requests for Admissions specifically deny or admit all of the Plaintiff’s requests as required by the Texas Rules of Production. Tex. R. Civ. P. 198.2(c). Additionally, the Defendant qualifies his responses as allowed by the rules. It is unclear why the Plaintiff asserts that the Defendant’s responses are not timely, as shown above, all of the Defendant’s responses were served on the Plaintiff within thirty (30) days. D. Defendant has provided the Plaintiff all of its non-privileged documents concerning the accident. As Defendant stated in his February 9, 2021 letter to the Plaintiff (attached as “Exhibit G”), all non-privileged documents in the Defendants’ possession or control concerning the accident have previously been produced to the Plaintiff. Accordingly, the Plaintiffs’ request that the Defendant be compelled to respond to discovery requests that he has already wholly and accurately responded or asserted a proper objection to is unduly burdensome and abusive. The Plaintiffs motion should be denied. E. The purpose of the Plaintiff’s motion is to cause delay, burden, and expense to the Defendant. The Plaintiff’s motion is clearly designed to cause undue burden, delay, and expense on the Defendant. The Plaintiff’s motion raises issues with fifty-three (53) separate discovery responses, but fails to make any particular argument as to why any specific response is insufficient. Further, the Plaintiff motion makes the blanket assertion that the Defendant’s responses to both the Plaintiff’s Requests for Admissions are insufficient without naming any particular response or attaching a copy of the Defendant’s responses as an exhibit. Finally, the Defendant has informed the Plaintiff in letters and emails that he has produced to them all non- privileged documents in his possession or control concerning the accident. It is unclear what Plaintiff wishes to gain from their motion other than to cause delay, burden and expense on the Defendant. V. PRAYER WHEREFORE PREMISES CONSIDERED, Defendant, RM TRANSPORT, INC. prays that this Court deny Plaintiff’s Motion to Compel, in its entirety or in part, and for such other and further relief, both general and special, legal and equitable, to which it may be justly entitled. Respectfully submitted, TAYLOR, BOOK, ALLEN & MORRIS, LLP ______________________________ GREGORY A. HOLLOWAY State Bar No. 24000502 gholloway@taylorbook.com WILLIAM A. WORTHINGTON State Bar No. 22010300 bworthington@taylorbook.com MARSHALL W. HALEY State Bar No. 24109969 mhaley@taylorbook.com 1221 McKinney, Suite 4300 Houston, Texas 77010 Tel: (713) 222-9542 Fax: (713) 655-7727 ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was served in accordance with Rule 21a of the Texas Rules of Civil Procedure to the following counsel of records on this the 29th day of January, 2021. VIA E-SERVICE: gtitpton@thomasjhenrylaw.com Gwen W. Tipton THE LAW OFFICE OF THOMAS J. HENRY 5711 University Heights Blvd., Suite 101 San Antonio, Texas 78249 ATTORNEY FOR PLAINTIF ______________________________ GREGORY A. HOLLOWAY WILLIAM A. WORTHINGTON MARSHALL W. HALEY