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CAUSE NO. 20-07-08961
PATRICK LEVANTINO, NICKOLAS § IN THE DISTRICT COURT OF
LEVANTINO, and LEVANTINO & §
COMPANY, P.C.
Plaintiffs,
MONTGOMERY COUNTY, TEXAS
STEPHEN A. LEVY,
Defendant. JUDICIAL DISTRICT
COUNTER-DEFENDANIS RESPONSE TO COUNTER-PLAINTIFF LEVY’S
MOTION FOR EXPEDITED DISCOVERY AND MOTIONTO COMPEL
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Patrick Levantino, Nickolas Levantino, and Levantino & Company,
P.C. (collectively “Counter Defendants”), and file this Response to Stephen A. Levy’s
(“Counter Plaintiff’ or “Levy”) Motion for Expedited Discovery pursuant to Chapter 27 of
the Texas Civil Practice and Remedies Code (“TCPA” or “the Act”) and Motion to Compel,
and in support thereof would respectfully show this Court the following:
I
SUMMARYOF ARGUMENT
Levy seeks discovery well beyond the scope of information supposedly needed
for his response to Counter-Defendants limited Motion to Dismiss under the Act.
Specifically, Counter-Plaintiffs have moved for dismissal on two issues only(1) statements
allegedly made the Texas State Board of Accountancy and (2) statements allegedly made to
the Conroe Police Department. Despite this, Levy is asking this court to ignore Section
27.006’s mandate that only upon a showing of good cause, a court may order specified and
limited discovery. Levy has not shown good cause for the broad discovery he seeks for his
response to the Motion to Dismiss.
2 Interestingly, Levy now claims that any statements allegedly made to the
Texas State Board of Accountancy are not part of any of his claims in this lawsuit. Counter-
Defendants were under the impression such claims were encompassed in Levy’s lawsuit
considering he specifically asked for this information in his Second Request for Production.
If Levy is not basing his claims on alleged statements to the Texas State Board of
Accountancy and Levy so stipulates to the same, Counter-Defendants will withdraw that
portion of their Motion to Dismiss leaving claims associated with any statements made to the
Conroe Police Department as the sole basis of the Motion. Counter-Defendants have no
desire to waste this Court’s time and that of the parties addressing matters that Levy is
stipulating are not part of this lawsuit.
3 Pertaining to claims based on alleged statements to the Conroe Police
Department, Levy issued a Deposition on Written Questions with document subpoena
(“DWQ’”) to the Conroe Police Department seeking their entire investigative file for Case
No. 20100017. (Exhibit A). The DWQ was issued on January 14, 2021. As such, he
deadline for the Conroe Police Department to object or respond to the subpoena has not yet
passed.’ It is Counter-Defendants’ understanding that Case No. 20100017 is an active and
ongoing investigation. Counter-Defendants submit that the Court should consider the
Conroe Police Department’s position regarding disclosing these records before ruling on any
request to compel Counter-Plaintiffs to turn over materials, to the extent any are in Mr.
Levantino’s possession, associated with an active criminal investigation.
|The deadline for objecting to the same is February 3, 2021.
IL.
CORRECTING THE RECORD
4. Feigning righteous indignation, Levy’s counsel accuses counsel for Counter-
Defendants of “a performative undertaking” whilw scheduling depositions. It appears that
counsel is upset that they were not immediately apprized when concems were raised with
possibly impeding an ongoing criminal investigation into Levy’s transfer of company funds
in the amount of $407,950.00” to himself during the time frame in which the parties agreed to
stay and dismiss any litigation between them regarding the future of their partnership.*
Specifically, the criminal investigation would be a topic of examination at any depositions
and documents related to the same are sought in Levy’s production requests and in his
Motion for Expedited Discovery. The interplay between the civil litigation and an ongoing
criminal investigation warrants consideration in this matter.
5 Despite Levy’s representations in his motion, Levy served his Second Request
for Production to Patrick Levantino on November 17, 2020, well before he ever filed his
counter-claim. The Second Request for Production sought Patrick Levantino’s personal tax
retums, communications with the IRS, documents and communications between Patrick
> See Exhibit B comprising the following negotiable instruments: (a) Check No. 022083 dated May 7,
2020 in the amount of $10,000.00; (b) Check No. 02281 dated May 6, 2020 in the amount of $20,000.00;
(c) Check No. 022054 dated April 7, 2020 in the amount of $60,000.00; (d) Check No. 022042 dated
March 31, 2020 in the amount of $11,000.00; (e) Check No. 022044 dated March 27, 2020 in the amount
of $40,000.00; (f) Check No. 022030 dated March 10, 2020 in the amount of $20,000.00; (g) Check No.
022025 dated March 6, 2020 in the amount of $50,000.00; (h) Check No. 022013 dated February 28,
2020 in the amount of $11,000.00; (i) Check No. 022020 dated February 27, 2020 in the amount of
$30,000.00; (j) Check No. 022004 dated February 15, 2020 in the amount of $100,000.00; (k) Check No.
021999 dated February 12, 2020 in the amount of $4,000.00; (1) Check No. 021982 dated January 30,
2020 in the amount of $11,950.00; (m) Check No. 021962 dated December 31, 2019 in the amount of
$20,000; (n) Check No. 021876 dated September 24, 2019 in the amount of $10,000.00; and (0) Check
No. 021855 dated August 29, 2019 in the amount of $10,000. This is in addition to his W-2 salary in
excess of $2 million for 2015-2019.
3 Exhibit C-Rule 11 Agreement resolving first law suit.
Levantino and the Texas State Board of Accountancy and any other state or federal licensing
agency, documents pertaining to a consulting expert involved with the prior lawsuit, any
documents or communications between Patrick Levantino and the Conroe Police Department
or other law enforcement agencies regarding Levy, and social mediation postings. See
Exhibit B. Patrick Levantino responded on December 17, 2020 objecting to the requests as
not relevant to the pending claims and defenses in the matter nor reasonably calculated to
lead to the discovery of admissible evidence. At that time, there was no counter-claim
pending and the requests plainly had nothing to do with the claims set forth in
Plaintiffs/C ounter- Defendants’ live petition.
6 The day after Patrick Levantino served his objections to the Second Request
for Production, December 18, 2020, which was also the pleadings deadline set forth by the
Court in the docket control order, Levy then filed his counter-claim. Apparently, Levy’s
counsel had contemplated filing Levy’s counter-claim no later than November 2020 when
the Second Set of Requests for Production were served but instead waited until the Friday
before Christmas to file the same.*
7 On January 14, 2021, Levy issued a Deposition on Written Questions with
document subpoena (“DWQ”) to the Conroe Police Department seeking their entire
investigative file for Case No. 20100017. (Exhibit A). The deadline for the Conroe Police
Department to object and/or respond to the same is February 3, 2021 and as such, has not yet
passed.° It is Counter-Defendants’ understanding that Case No. 20100017 is an active and
‘Despite such tactics, Levy is now impugning improper motive on the part of Counter-Defendants with
regard to filing their Motion to Dismiss, the second week of January, despite having sought dismissal of
Counter-Defendants’ claims even though the same were and are, by a plain reading of the statute, exempt.
ongoing investigation. Counter-Defendants submit that the Conroe Police Department’s
position regarding disclosing these records should be taken into account before ruling on any
request to compel Counter-Plaintiffs to turn over materials, to the extent any are in Mr.
Levantino’s possession, associated with an active criminal investigation.
8 On January 14, 2021, Counter-Defendants supplemented the response to the
Second Request for Production providing documents responsive to request number 38—
providing communications with the IRS regarding tax payer identification number 76-
031340, which is the tax identification number for the former Levantino & Company, PC
n/k/a The Levy Group, PC. The documents produced were the only documents, including
communications, provided to the IRS associated with this tax identification number 2019.°
Tl.
LEVY’S DISCOVERY REQUESTS
ARE NOT LIMITED TO THE CLAIMS AT ISSUE
9 Section 27.006(b) of the Texas Citizens Participation Act allows “specified and
limited discovery relevant to the motion” only upon “a showing of good cause.” Tex. Civ. Prac.
& Rem. Code Ann. § 27.006(b); see also In re SSCP Management, Inc., 573 S.W.3d 464, 470—
71 (Tex. App—Fort Worth 2019, orig. proceeding) (holding that the trial court abused its
discretion by allowing overly broad discovery even though the motion to dismiss challenged all
the pled causes of action).
Various courts of appeals have . . . held that discovery is relevant to the motion
to dismiss if it seeks information related to the allegations asserted in the
motion to dismiss, and some merits-based discovery may also be relevant to
the extent that it seeks information to assist the non-movant to meet its burden
to present a prima facie case for each element of the non-movant's claims to
defeat the motion to dismiss. Any merits-based discovery that is necessarily
implicated by the motion to dismiss must meet the statutory requirement for
5 To the extent Levy is seeking Levantino’s personal tax records, these have no bearing on the claims at issue in the
Motion to Dismiss and are subject to constitutional privacy rights.
“specific” and “limited” discovery because a prima facie standard generally
requires only the minimum quantum of evidence necessary to support a
rational inference that the allegation of fact is true. Accordingly, Texas courts
have allowed non-movants to conduct abbreviated discovery, such as a short
deposition of the TCPA movant, or very truncated document production.
In re Great Lakes Ins. SE, No. 13-19-00577-CV, 2019 Tex. App. LEXIS 10865, at *18-19
(Tex. App.—Corpus Christi Dec. 16, 2019, orig. proceeding) (internal citations omitted).
A Second Request for Production
10. In this matter, the discovery sought by Levy extends beyond the “specific” and
“limited” discovery allegedly necessary to respond to the Motion to Dismiss. Levy is
requesting that the Court order responses to production requests that are overly broad from
the face of the request—i.e. not limited for any period of time. Further, the production
requests are not limited to communications with the (1) Texas State Board of Public
Accountancy or (2) communications with the Conroe Police Department. For example,
Request for Production No. 39 seeks “[a]ny and all personal tax returns for the 2019 tax
period, including any and all attachments, spreadsheets, schedules, Forms, 1099s, W-2s, and
record of refunds and/or tax payments.” Levy fails to explain how Patrick Levantino’s
personal tax returns are relevant to his response to the Motion to Dismiss.’ Levy simply asks
the Court for a blanket order compelling production to his overly broad requests without
limitation and without explaining how these broad categories of documents are necessary for
his response to the Motion to Dismiss.® Broad unfocused production requests such as the
ones issued by Levy are not permissible under Section 27.006(b). In re SSCP Management,
7 Further, Texas law treats personal tax retums as private and limits production of the same.
5 Tt is also noted that Levy seeks an order compelling production of documents responsive to Request No.
42 which seeks internet posting regarding Levy or the Levy Group. Counter-Plaintiff did not object to the
request and specifically indicated there are no responsive documents. It is unclear exactly what relief
Levy is seeking from the Court in regard to this request.
Inc., 573 $.W.3d at 470-71 (finding that the court abused its discretion and noting that the
“written discovery requests are but a sampling of the scattershot, case-wide discovery
requests allowed by the Discovery Order that are not specifically tied to the allegations at
issue in the TCPA Motions to Dismiss.”). Counter-Defendants submit that Levy failed to
show that the Second Request for Production are specific and limited to the issues raised in
the Motion to Dismiss. Therefore, the motion to compel should be denied.
B Additional Written Discovery
11. Levy makes a blanket request for written discovery regarding the defenses of
absolute and qualified privilege. Considering these issues are questions of law, it is unclear
what additional information could be gleaned for another set of written discovery.
Complaints made to the Texas State Board of Public Accountancy are afforded judicial
immunity. Rose v. First Am. Title Ins. Co., 907 S.W.2d 639, 641 (Tex. App.—Corpus Christi
1995, no writ) (holding that a letter complaint letter filed with the Texas State Board of
Public Accountancy was subject to absolute privilege). Further since Levy claims this is not
part of his counter-claim, then there is no good cause to conduct discovery into the matter.
12. Further, Levy has not identified what categories of documents he is seeking as
part of discovery regarding the privilege defenses asserted by Counter-Defendants. He just
globally seeks permission to send “written discovery” yet fails to identify whether he seeks
interrogatories or production requests and what materials are to be sought in these requests.
If Levy is unable to articulate specifically what categories of information are sought and the
mechanisms by which he seeks it, then Levy has failed to meet his burden and the request for
written discovery should be denied.
Cc Deposition:
13. As previously stated by Levy in his opposition to Counter-Defendants’
Expedited Motion for Limited Discovery:
To establish good cause, [Levy] must provide the identity of the witnesses, the
testimony they seek to elicit from the witnesses, and how such testimony is
relevant to the dismissal motion.
See Levy’s Response to Plaintiffs’ Expedited Motion for Limited Discovery at 47. Levy
explains that he seeks to depose Patrick Levantino, Nick Levantino, non-party Patrick
Levantino, Jr., and the Corporate Representative of Levantino & Company to ascertain their
“motive” for making any statements to the accounting board or the police. Levy’s Motion for
Discovery at ] 18. However, “motive” is irrelevant to the causes of action at issue. Motive
has no bearing on an absolute privilege as is the case with a report to the accounting board.
Rose v. First Am. Title Ins. Co., 907 S.W.2d 639, 641 (Tex. App.—Corpus Christi 1995, no
writ) (explaining that reports to the accounting board are absolutely privileged “regardless of
the negligence or malice with which they are made.”). Further “motive” has no bearing on
“malice” in the context of defamation based claims. See Greer v. Abraham, 489 S.W.3d 440,
443 (Tex. 2016) (explaining that “[a]ctual malice in this context does not mean bad motive or
ill will”); Robert B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596, 610-11 (Tex. App.—San
Antonio 2018, pet. denied).
14, Further, Levy has not identified the scope of the testimony he seeks other
than a blanket request to obtain testimony regarding Counter-Defendants’ “statements”. He
also seeks to depose, Patrick Levantino, Jr., who is not a party to this matter but is a party to
different lawsuit with Levy over an unpaid wage claim. Levy further requests redundant
testimony—which plainly is not specified or limited. Specifically, Patrick Levantino and
Nick Levantino are Levantino & Company, P.C. There is no basis for compelling a second
deposition of either of them as the Corporate Representative of Levantino & Company. In
sum, the requests for depositions regarding “statements” and “malice” fail to specify the
testimony sought or identify how it relates to the specific issues set forth in the Motion to
Dismiss. This is especially true in regard to non-party Patrick Levantino, Jr. In sum, Levy’s
overly broad request for depositions of unlimited time or scope is beyond the purview of
Section 27.006(b) and should be denied as requested.
IV.
CONTINUANCE OF THE DISCOVERY HEARING
15. As set forth above, Levy issued a DWQ to the Conroe Police Department
seeking their entire investigative file. The department’s response to the DWQ is not due
until February 3, 2021 and its position on this matter and status of the criminal investigation
should be taken into consideration when ruling on Levy’s request for expedited discovery. In
this regard, Counter-Plaintiffs request that the Court post-pone ruling on the Motion to
Compel Discovery until after the Conroe Police Department has responded to the DWQ.
Should the department indicate that there is no open investigation and produce documents, it
would alleviate Counter-Defendants’ concern of impeding a criminal investigation. In
requesting the court postpone ruling until after February 3, 2021, Counter-Defendants
concede that the submission date on their Motion to Dismiss should be reset in order to
accommodate the time frame for the DWQ response and for the Court to then rule on Levy’s
Motion for Expedited Discovery. Counter-Defendants will defer to the Court on the
appropriate time to reset the date for submission.
V.
CONCLUSION
WHEREFORE, Counter-Defendants Patrick Levantino, Nickolas Levantino, and
Levantino & Company, P.C. respectfully request that the Court deny Levy’s request for
overly broad and unspecified expedited discovery, and for such other and further relief to
which they may be justly entitled.
Respectfully submitted,
JOHNSON, TRENT & TAYLOR, L.L.P.
By: /s/ T. Christopher Trent
T. Christopher Trent
State Bar No. 20209400
Leslee N. Haas
State Bar No. 24041031
919 Milam, Suite 1500
Houston, Texas 77002
Telephone: (713) 222-2323
Facsimile: (713) 222-2226
Email: ctrent@johnsontrent.com
Email: lhaas@johnsontrent.com
ATTORNEYS FOR PLAINTIFFS/COUNTER
DEFENDANTS
CERTIFICATE OF SERVICE
I certify that, in accordance with the Texas Rules of Civil Procedure, a true and
correct copy of the foregoing document was served upon all counsel of record on the 28" day
of January 2021.
Karen D. Smith Via E-Service
Kimberly Chojnacki
BAKER DONELSON
1301 McKinney Street, Suite 3700
Houston, Texas 77010
/s/Leslee N. Haas
LESLEE N. HAAS
10
EXHIBIT A
01/14/2021 THU 11:50 FAX 2818908975 Team Legal jo01/007
PATRICK M. LEVANTINO,
No. 20-07-08961
tt IN THE DISTRICT COURT OF
Peuie
NICKOLAS LEVANTINO, AND
LEVANTINO & COMPANY, P.C.
MONTGOMERY COUNTY, TEXAS
vs,
STEPHEN A. LEVY 457TH JUDICIAL DISTRICT
WAIVER OF NOTICE
Our client, Karen D. Smith, has commissioned TEAM LEGAL now Lexitas to obtain records on Case #20100017 from the
following custodian(s) for use in the above referenced case.
PLEASE INDICATE YOUR COPY PREFERENCE BELOW BY CIRCLING YES OR NO,
By purchasing a copy of these records, you will receive complimentary access through Team Legal's website to view the
documents online in our fully searchable format,
YES / NO (1) Conroe Police Department (Attn; Records) (Any & All Records)
Please indicate if you would like to receive copies of Affidavits of No Records when produced by the custodian,
QYES GINO
T agree that I, and my firm, if any, shall be responsible, jointly and severally, for payment of the copies, litigation support services
and/or products ordered on this waiver. I acknowledge that invoices are due and payable in accordance with the terms desoribed
hereunder.
1 DO AGREE TO WAIVE THE NOTICE PERIOD.
Q IDONOT AGREE TO WAIVE THE NOTICE PERIOD.
Dated:
Signed
TEAM LEGAL
T, Christopher Trent
Johnson, Trent & Taylor, L.L.P.
919 Milam, Suite 1500
Houston, TX 77002 713-222-2323 Fax 713-222-2226
Email; ctrent@Johnsontrent.com
Attorney for Plaintiffs)
The Leader in Litigation Support
SBA # 20209400
Please Return To: TEAM LEGAL now Lexitas
13100 Wortham Center Dr., Suite 140
Houston, TX 77065
713-937-4242 Fax 713-937-9995
becky.dickerson@lexitaslegal.com
www. lexitaslegal.com/conciergerecords
TERMS; Any cancellation of the above must be In writing. If the records have alroady been copied and fees incurred, then billing will be
prorated accordingly. Payment on requested copies, litigation support services and/or products is due within thirty (30) days of the invoice date
and shall be made payable to ‘Team Legal (Corporate Headquarters) located at 13100 Wortham Center Dr., Suite 140, Houston, Texas 7706S.
Tour Legal reserves the right to deliver the above mentioned copies on a C.0.D, basis. ‘Team Legal may also refuse to honor copy requests on
delinquent accounts until the past due balance is brought to a current standing. All amounts not paid when duc shall bear a 10% late fee. If
collection for this invoice is placed in the hands of an attorney, attorney fecs equal to 30% of the total invoice price shall he due and owing. If
any legal action is required, it is agreed that the venue for such shall be in Harris County, Texas. This agreement shall be consttued under Texus.
laws.
Order No. 28150
01/14/2021 THU 11:50 FAX 2818908975 Team Legal jo02/007
No. 20-07-08961
PATRICK M. LEVANTINO, IN THE DISTRICT COURT OF
NICKOLAS LEVANTINO, AND
LEVANTINO & COMPANY, P.C.
MONTGOMERY COUNTY, TEXAS
VS.
STEPHEN A. LEVY 3 487TH JUDICIAL DISTRICT
NOTICE OF INTENTION
TO TAKE DEPOSITION BY WRITTEN QUESTIONS
To Plaintiff(s) by and through their attorney(s) of record: T. Christopher Trent
You will please take notice that twenty (20) days from the service of a copy hereof with attached questions, a deposition by written
questions will be taken of Custodian of Records for:
(1) Conroe Police Department (Attn: Records) (Any & All Records)
2300 Plantation Drive, Conroe, TX 77303
before a Notary Public for TEAM LEGAL now Loxitas
13100 Wortham Center Dr., Sulte 140, Houston, Texas 77065
713-937-4242, Fax 713-937-9995, www.lexitaslegal.com/conciergerecords
or its designated agent, which deposition with attached questions may be used in evidence upon the trial of the above-styled and
numbered cause pending in the above named court. Notice is further given that request is hereby made as authorized under Rule
200, Texas Rules of Civil Procedure, to the officer taking this deposition to issue a subpoena duces tecum and cause it to be
served on the witness to produce any and all records as described on the attached questions and/or Exhibit(s) and any other such
record in the possession, custody or control of the said witness, and every such record to which the witness may have access,
pertaining to: Case #20100017
and to turn all such records over to the officer authorized to take this deposition so that photographic reproductions of the same
may be made and attached to said deposition,
.
-
TEAM LEGAL ‘Karen D, Smith
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
1301 McKinney, Suite 3700
ia
Houston, TX 77010
713-650-9700 Fax 713-650-9701
G4 Attomey for Defendant(s)
i
‘The Leader in "Litigation Support SBA # 00785001
1 hereby certify that a true and correct copy of the foregoing instrument has been forwarded to all Counsel of Record by hand
delivery, fax, email, commercial delivery service, and/or certified mail, ‘eceipt requested, on this day.
Dated: January 14, 2021
Order No, 28150
01/14/2021 THY 11:50 FAX 2819908975 Team Legal @jo03/007
No. 20-07-08961
PATRICK M. LEVANTINO, : IN THE DISTRICT COURT OF
NICKOLAS LEVANTINO, AND
LEVANTINO & COMPANY, P.C.
MONTGOMERY COUNTY, TEXAS
VS.
STEPHEN A, LEVY 457TH JUDICIAL DISTRICT
DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS
Custodian of Records for: Conroe Police Department (Attn: Records)
Records Pertaining To: Case 420100017
Type of Records; any and ail records (on paper and/or in electronic format) as described in the attached Exhibit 'A’
Please state your full name.
Answer:
Please state by whom you are employed and the business address.
Answer:
What is the title of your position or job?
Answer;
Are these memoranda, reports, records, or data compilations, outlined in the subpoena duces tecum, pertaining to the above-
named person, in your custody or subject to your control, supervision or direction?
Answer:
5. Are you able to identify these aforementioned records as the originals or true and correct copies of the originals?
Answer:
6, Please hand to the Notary Public taking this written deposition copies of the memoranda, reports, records, or data
compilations, mentioned in Question No. 4. Have you complied? If not, why?
Answer;
Are the copies which you have handed to the Notary Public taking this written deposition true and correct copies of such
tmemoranda, reports, records, or data compilations?
Answer:
Order No. 28150.001
01/14/2021 THU 11:50 FAX 2818908975 Team Legal 004/007
8 Were such memoranda, reports, records, or data compilations kept in the regular course of business of this facility?
Answer:
9 Was it in the regular course of business of this facility for a person with knowledge of the acts, events, conditions, opinion, or
diagnoses, recorded to make the record or to transmit information thereof to be included in such record?
Answer:
10. Were the entries on these records made at or shortly after the time of the transaction recorded?
Answer:
i Was the method of preparation of these records trustworthy?
Answer:
12, Do the attached records reflect factual findings resulting from an investigation made pursuant to the authority granted by law
relating to Conroe Police Department Case # 201000177
Answer:
13 Were the conclusions and opinions contained in the attached records based on the factual investigation of the officer(s) who
investigated Conroe Police Department Case # 20100017?
Answer:
14, In the event that no records can be found, are there document archives (i.e. microfiche, electronic data) or document retention
policies which explain their absence? If yes, please explain those archives or policies and/or identify, by name, address, and
telephone number, who has knowledge of those archives or policies.
Answer;
15, For a document that no longer exists or that cannot be located, identify the document, state how and when it passed out of
existence or could no longer be located, and the reasons for the disappearance. Also, identify each person having knowledge
about the disposition or loss of the document, and identify any other document evidencing the lost document's existence or
any facts about the lost document,
4, When identifying the document, you must state the following:
1 The nature of the document (c.g., letter, handwritten note).
2. The title or heading that appears on the document.
3 The date of the document and the date of each addendum, supplement, or other addition or change,
4 The identities of the author, signer of the document, and person on whose behalf or at whose request or
direction the document was prepared or delivered.
Order No, 28150.001
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b. When identifying the person, you must state the following:
1 The full name.
2. The present or last known residential address and residential telephone number.
3. The present or tast known office address and office telephone number.
4. The present occupation, job title, employer, and employer’s address,
Answer:
16. Ifany document(s) is withheld from production under claim of privilege, then state with respect to each such document:
1 The information or material responsive to the request which has been withheld;
2 ‘The request to which the information or material relates, and;
3 The privilege or privileges asserted.
Answer:
WITNESS (Custodian of Records)
Before me, the undersigned authority, on this day personally appeared
known to me to be the person whose name is subscribed to the foregoing instrument in the capacity therein stated, who being first
duly sworn, stated upon his/her oath that the answers to the foregoing questions are true and correct. I further certify that the
records attached hereto are exact duplicates of the original records.
SWORN TO AND SUBSCRIBED before me this day of. +20, '
NOTARY PUBLIC
My Commission Expires:
Order No, 28150,001
01/14/2021 THY 11:51 FAX 2818909975 Team Legal 006/007
EXHIBIT A
(Documents to be Produced)
Your entire file/any and all documents, communications, records and information related to
and/or reflecting the handling, investigation, and/or evaluation of Conroe Police Department
Case #20100017, specifically including but not limited to:
° Notes, field/personal notes, emails, witness statements, calculations, photographs,
sketches, drawings, diagrams, memorandums, log books, notebooks, and reports of the
Conroe Police Department and/or its Legal Department, Fraud Department, and/or
officers, agents, and/or representatives, specifically including but not limited to Detective
Jason Roper and fraud investigator(s) and any field/personal notes of each of these
individuals;
All communications and documents sent to or received from, or exchanged by and
between Patrick Levantino and the Conroe Police Department;
All correspondence, emails, communications and documents sent to or received from, or
exchanged by and between any individual or entity other than Patrick Levantino and the
Conroe Police Department;
Logs reflecting any telephone calls, faxes, texts;
Reconciliations, bookkeeping, financial diagnostics, forensic accounting, and audits;
Please provide color copies of documents such as diagrams or documents containing
writing/markings of color other than black on white;
Any audio/video recordings of meetings, interviews, communications;
Documents reflecting the status of the investigation.
Order No. 28150.001
01/14/2021 THU 11:51 FAX 2818908975 Team Legal (007/007
DEPOSITION SUBPOENA TO TESTIFY OR PRODUCE DOCUMENTS OR THINGS _
THE STATE OF TEXAS
To any Sheriff or Constable of the State of Texas or other person authorized to serve subpoenas under RULE 176 OF TEXAS
RULES OF CIVIL PROCEDURE, GREETINGS -
You are hereby commanded to subpoena and summon the following witness(es):
Custodian of Records for:
Conroe Police Department (Attn: Records)
2300 Plantation Drive
Conroe, TX 77303 936-522-3200
to be and appear before a Notary Public of my designation for
TEAM LEGAL now Lexitas 713-937-4242
13100 Wortham Center Dr., Suite 140, Houston, TX 77065
or its designated agent, on the forthwith day of Instanter at the office of the custodian and there under oath to make answers of
certain written questions to be propounded to the witness and to bring and produce for inspection and photocopying
any and all records (on paper and/or in electrantc format) as described in the attached Exhibit 'A'
and any other such record in the possession, custody or control of the said witness, and every such record to which the witness
may have access, pertaining to: Case #20100017
at any and all times whatsoever, then and there to give evidence at the instance of the Defendant(s),
represented by Karen D, Smith, Attorney of Record, in that Certain Cause No. 20-07-08961, pending on the docket of the
District Court of Texas,
This Subpoena is issued under and by virtue of Rule 200 and Notice of Deposition Upon Written Questions on file with the
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176.8 Enforcement of Subpoena. (a) Contempt. Failure by any person without adequate excuse to obey a subpoena served
upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in
which the subpoena is served, and may be punished by fine or confinement, or both.
OFFICER'S RETURN
Came to hand this day of and executed this the day of 20.
in the following manner: By delivering to the witness a true copy hereof,
including the $1,00 witness fee as required by law.
Returned this day of. 20
PROCESS SERVER
Order No, 28150,001
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Preview
CAUSE NO. 20-07-08961 PATRICK LEVANTINO, NICKOLAS § IN THE DISTRICT COURT OF LEVANTINO, and LEVANTINO & § COMPANY, P.C. Plaintiffs, MONTGOMERY COUNTY, TEXAS STEPHEN A. LEVY, Defendant. JUDICIAL DISTRICT COUNTER-DEFENDANIS RESPONSE TO COUNTER-PLAINTIFF LEVY’S MOTION FOR EXPEDITED DISCOVERY AND MOTIONTO COMPEL TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Patrick Levantino, Nickolas Levantino, and Levantino & Company, P.C. (collectively “Counter Defendants”), and file this Response to Stephen A. Levy’s (“Counter Plaintiff’ or “Levy”) Motion for Expedited Discovery pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code (“TCPA” or “the Act”) and Motion to Compel, and in support thereof would respectfully show this Court the following: I SUMMARYOF ARGUMENT Levy seeks discovery well beyond the scope of information supposedly needed for his response to Counter-Defendants limited Motion to Dismiss under the Act. Specifically, Counter-Plaintiffs have moved for dismissal on two issues only(1) statements allegedly made the Texas State Board of Accountancy and (2) statements allegedly made to the Conroe Police Department. Despite this, Levy is asking this court to ignore Section 27.006’s mandate that only upon a showing of good cause, a court may order specified and limited discovery. Levy has not shown good cause for the broad discovery he seeks for his response to the Motion to Dismiss. 2 Interestingly, Levy now claims that any statements allegedly made to the Texas State Board of Accountancy are not part of any of his claims in this lawsuit. Counter- Defendants were under the impression such claims were encompassed in Levy’s lawsuit considering he specifically asked for this information in his Second Request for Production. If Levy is not basing his claims on alleged statements to the Texas State Board of Accountancy and Levy so stipulates to the same, Counter-Defendants will withdraw that portion of their Motion to Dismiss leaving claims associated with any statements made to the Conroe Police Department as the sole basis of the Motion. Counter-Defendants have no desire to waste this Court’s time and that of the parties addressing matters that Levy is stipulating are not part of this lawsuit. 3 Pertaining to claims based on alleged statements to the Conroe Police Department, Levy issued a Deposition on Written Questions with document subpoena (“DWQ’”) to the Conroe Police Department seeking their entire investigative file for Case No. 20100017. (Exhibit A). The DWQ was issued on January 14, 2021. As such, he deadline for the Conroe Police Department to object or respond to the subpoena has not yet passed.’ It is Counter-Defendants’ understanding that Case No. 20100017 is an active and ongoing investigation. Counter-Defendants submit that the Court should consider the Conroe Police Department’s position regarding disclosing these records before ruling on any request to compel Counter-Plaintiffs to turn over materials, to the extent any are in Mr. Levantino’s possession, associated with an active criminal investigation. |The deadline for objecting to the same is February 3, 2021. IL. CORRECTING THE RECORD 4. Feigning righteous indignation, Levy’s counsel accuses counsel for Counter- Defendants of “a performative undertaking” whilw scheduling depositions. It appears that counsel is upset that they were not immediately apprized when concems were raised with possibly impeding an ongoing criminal investigation into Levy’s transfer of company funds in the amount of $407,950.00” to himself during the time frame in which the parties agreed to stay and dismiss any litigation between them regarding the future of their partnership.* Specifically, the criminal investigation would be a topic of examination at any depositions and documents related to the same are sought in Levy’s production requests and in his Motion for Expedited Discovery. The interplay between the civil litigation and an ongoing criminal investigation warrants consideration in this matter. 5 Despite Levy’s representations in his motion, Levy served his Second Request for Production to Patrick Levantino on November 17, 2020, well before he ever filed his counter-claim. The Second Request for Production sought Patrick Levantino’s personal tax retums, communications with the IRS, documents and communications between Patrick > See Exhibit B comprising the following negotiable instruments: (a) Check No. 022083 dated May 7, 2020 in the amount of $10,000.00; (b) Check No. 02281 dated May 6, 2020 in the amount of $20,000.00; (c) Check No. 022054 dated April 7, 2020 in the amount of $60,000.00; (d) Check No. 022042 dated March 31, 2020 in the amount of $11,000.00; (e) Check No. 022044 dated March 27, 2020 in the amount of $40,000.00; (f) Check No. 022030 dated March 10, 2020 in the amount of $20,000.00; (g) Check No. 022025 dated March 6, 2020 in the amount of $50,000.00; (h) Check No. 022013 dated February 28, 2020 in the amount of $11,000.00; (i) Check No. 022020 dated February 27, 2020 in the amount of $30,000.00; (j) Check No. 022004 dated February 15, 2020 in the amount of $100,000.00; (k) Check No. 021999 dated February 12, 2020 in the amount of $4,000.00; (1) Check No. 021982 dated January 30, 2020 in the amount of $11,950.00; (m) Check No. 021962 dated December 31, 2019 in the amount of $20,000; (n) Check No. 021876 dated September 24, 2019 in the amount of $10,000.00; and (0) Check No. 021855 dated August 29, 2019 in the amount of $10,000. This is in addition to his W-2 salary in excess of $2 million for 2015-2019. 3 Exhibit C-Rule 11 Agreement resolving first law suit. Levantino and the Texas State Board of Accountancy and any other state or federal licensing agency, documents pertaining to a consulting expert involved with the prior lawsuit, any documents or communications between Patrick Levantino and the Conroe Police Department or other law enforcement agencies regarding Levy, and social mediation postings. See Exhibit B. Patrick Levantino responded on December 17, 2020 objecting to the requests as not relevant to the pending claims and defenses in the matter nor reasonably calculated to lead to the discovery of admissible evidence. At that time, there was no counter-claim pending and the requests plainly had nothing to do with the claims set forth in Plaintiffs/C ounter- Defendants’ live petition. 6 The day after Patrick Levantino served his objections to the Second Request for Production, December 18, 2020, which was also the pleadings deadline set forth by the Court in the docket control order, Levy then filed his counter-claim. Apparently, Levy’s counsel had contemplated filing Levy’s counter-claim no later than November 2020 when the Second Set of Requests for Production were served but instead waited until the Friday before Christmas to file the same.* 7 On January 14, 2021, Levy issued a Deposition on Written Questions with document subpoena (“DWQ”) to the Conroe Police Department seeking their entire investigative file for Case No. 20100017. (Exhibit A). The deadline for the Conroe Police Department to object and/or respond to the same is February 3, 2021 and as such, has not yet passed.° It is Counter-Defendants’ understanding that Case No. 20100017 is an active and ‘Despite such tactics, Levy is now impugning improper motive on the part of Counter-Defendants with regard to filing their Motion to Dismiss, the second week of January, despite having sought dismissal of Counter-Defendants’ claims even though the same were and are, by a plain reading of the statute, exempt. ongoing investigation. Counter-Defendants submit that the Conroe Police Department’s position regarding disclosing these records should be taken into account before ruling on any request to compel Counter-Plaintiffs to turn over materials, to the extent any are in Mr. Levantino’s possession, associated with an active criminal investigation. 8 On January 14, 2021, Counter-Defendants supplemented the response to the Second Request for Production providing documents responsive to request number 38— providing communications with the IRS regarding tax payer identification number 76- 031340, which is the tax identification number for the former Levantino & Company, PC n/k/a The Levy Group, PC. The documents produced were the only documents, including communications, provided to the IRS associated with this tax identification number 2019.° Tl. LEVY’S DISCOVERY REQUESTS ARE NOT LIMITED TO THE CLAIMS AT ISSUE 9 Section 27.006(b) of the Texas Citizens Participation Act allows “specified and limited discovery relevant to the motion” only upon “a showing of good cause.” Tex. Civ. Prac. & Rem. Code Ann. § 27.006(b); see also In re SSCP Management, Inc., 573 S.W.3d 464, 470— 71 (Tex. App—Fort Worth 2019, orig. proceeding) (holding that the trial court abused its discretion by allowing overly broad discovery even though the motion to dismiss challenged all the pled causes of action). Various courts of appeals have . . . held that discovery is relevant to the motion to dismiss if it seeks information related to the allegations asserted in the motion to dismiss, and some merits-based discovery may also be relevant to the extent that it seeks information to assist the non-movant to meet its burden to present a prima facie case for each element of the non-movant's claims to defeat the motion to dismiss. Any merits-based discovery that is necessarily implicated by the motion to dismiss must meet the statutory requirement for 5 To the extent Levy is seeking Levantino’s personal tax records, these have no bearing on the claims at issue in the Motion to Dismiss and are subject to constitutional privacy rights. “specific” and “limited” discovery because a prima facie standard generally requires only the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true. Accordingly, Texas courts have allowed non-movants to conduct abbreviated discovery, such as a short deposition of the TCPA movant, or very truncated document production. In re Great Lakes Ins. SE, No. 13-19-00577-CV, 2019 Tex. App. LEXIS 10865, at *18-19 (Tex. App.—Corpus Christi Dec. 16, 2019, orig. proceeding) (internal citations omitted). A Second Request for Production 10. In this matter, the discovery sought by Levy extends beyond the “specific” and “limited” discovery allegedly necessary to respond to the Motion to Dismiss. Levy is requesting that the Court order responses to production requests that are overly broad from the face of the request—i.e. not limited for any period of time. Further, the production requests are not limited to communications with the (1) Texas State Board of Public Accountancy or (2) communications with the Conroe Police Department. For example, Request for Production No. 39 seeks “[a]ny and all personal tax returns for the 2019 tax period, including any and all attachments, spreadsheets, schedules, Forms, 1099s, W-2s, and record of refunds and/or tax payments.” Levy fails to explain how Patrick Levantino’s personal tax returns are relevant to his response to the Motion to Dismiss.’ Levy simply asks the Court for a blanket order compelling production to his overly broad requests without limitation and without explaining how these broad categories of documents are necessary for his response to the Motion to Dismiss.® Broad unfocused production requests such as the ones issued by Levy are not permissible under Section 27.006(b). In re SSCP Management, 7 Further, Texas law treats personal tax retums as private and limits production of the same. 5 Tt is also noted that Levy seeks an order compelling production of documents responsive to Request No. 42 which seeks internet posting regarding Levy or the Levy Group. Counter-Plaintiff did not object to the request and specifically indicated there are no responsive documents. It is unclear exactly what relief Levy is seeking from the Court in regard to this request. Inc., 573 $.W.3d at 470-71 (finding that the court abused its discretion and noting that the “written discovery requests are but a sampling of the scattershot, case-wide discovery requests allowed by the Discovery Order that are not specifically tied to the allegations at issue in the TCPA Motions to Dismiss.”). Counter-Defendants submit that Levy failed to show that the Second Request for Production are specific and limited to the issues raised in the Motion to Dismiss. Therefore, the motion to compel should be denied. B Additional Written Discovery 11. Levy makes a blanket request for written discovery regarding the defenses of absolute and qualified privilege. Considering these issues are questions of law, it is unclear what additional information could be gleaned for another set of written discovery. Complaints made to the Texas State Board of Public Accountancy are afforded judicial immunity. Rose v. First Am. Title Ins. Co., 907 S.W.2d 639, 641 (Tex. App.—Corpus Christi 1995, no writ) (holding that a letter complaint letter filed with the Texas State Board of Public Accountancy was subject to absolute privilege). Further since Levy claims this is not part of his counter-claim, then there is no good cause to conduct discovery into the matter. 12. Further, Levy has not identified what categories of documents he is seeking as part of discovery regarding the privilege defenses asserted by Counter-Defendants. He just globally seeks permission to send “written discovery” yet fails to identify whether he seeks interrogatories or production requests and what materials are to be sought in these requests. If Levy is unable to articulate specifically what categories of information are sought and the mechanisms by which he seeks it, then Levy has failed to meet his burden and the request for written discovery should be denied. Cc Deposition: 13. As previously stated by Levy in his opposition to Counter-Defendants’ Expedited Motion for Limited Discovery: To establish good cause, [Levy] must provide the identity of the witnesses, the testimony they seek to elicit from the witnesses, and how such testimony is relevant to the dismissal motion. See Levy’s Response to Plaintiffs’ Expedited Motion for Limited Discovery at 47. Levy explains that he seeks to depose Patrick Levantino, Nick Levantino, non-party Patrick Levantino, Jr., and the Corporate Representative of Levantino & Company to ascertain their “motive” for making any statements to the accounting board or the police. Levy’s Motion for Discovery at ] 18. However, “motive” is irrelevant to the causes of action at issue. Motive has no bearing on an absolute privilege as is the case with a report to the accounting board. Rose v. First Am. Title Ins. Co., 907 S.W.2d 639, 641 (Tex. App.—Corpus Christi 1995, no writ) (explaining that reports to the accounting board are absolutely privileged “regardless of the negligence or malice with which they are made.”). Further “motive” has no bearing on “malice” in the context of defamation based claims. See Greer v. Abraham, 489 S.W.3d 440, 443 (Tex. 2016) (explaining that “[a]ctual malice in this context does not mean bad motive or ill will”); Robert B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596, 610-11 (Tex. App.—San Antonio 2018, pet. denied). 14, Further, Levy has not identified the scope of the testimony he seeks other than a blanket request to obtain testimony regarding Counter-Defendants’ “statements”. He also seeks to depose, Patrick Levantino, Jr., who is not a party to this matter but is a party to different lawsuit with Levy over an unpaid wage claim. Levy further requests redundant testimony—which plainly is not specified or limited. Specifically, Patrick Levantino and Nick Levantino are Levantino & Company, P.C. There is no basis for compelling a second deposition of either of them as the Corporate Representative of Levantino & Company. In sum, the requests for depositions regarding “statements” and “malice” fail to specify the testimony sought or identify how it relates to the specific issues set forth in the Motion to Dismiss. This is especially true in regard to non-party Patrick Levantino, Jr. In sum, Levy’s overly broad request for depositions of unlimited time or scope is beyond the purview of Section 27.006(b) and should be denied as requested. IV. CONTINUANCE OF THE DISCOVERY HEARING 15. As set forth above, Levy issued a DWQ to the Conroe Police Department seeking their entire investigative file. The department’s response to the DWQ is not due until February 3, 2021 and its position on this matter and status of the criminal investigation should be taken into consideration when ruling on Levy’s request for expedited discovery. In this regard, Counter-Plaintiffs request that the Court post-pone ruling on the Motion to Compel Discovery until after the Conroe Police Department has responded to the DWQ. Should the department indicate that there is no open investigation and produce documents, it would alleviate Counter-Defendants’ concern of impeding a criminal investigation. In requesting the court postpone ruling until after February 3, 2021, Counter-Defendants concede that the submission date on their Motion to Dismiss should be reset in order to accommodate the time frame for the DWQ response and for the Court to then rule on Levy’s Motion for Expedited Discovery. Counter-Defendants will defer to the Court on the appropriate time to reset the date for submission. V. CONCLUSION WHEREFORE, Counter-Defendants Patrick Levantino, Nickolas Levantino, and Levantino & Company, P.C. respectfully request that the Court deny Levy’s request for overly broad and unspecified expedited discovery, and for such other and further relief to which they may be justly entitled. Respectfully submitted, JOHNSON, TRENT & TAYLOR, L.L.P. By: /s/ T. Christopher Trent T. Christopher Trent State Bar No. 20209400 Leslee N. Haas State Bar No. 24041031 919 Milam, Suite 1500 Houston, Texas 77002 Telephone: (713) 222-2323 Facsimile: (713) 222-2226 Email: ctrent@johnsontrent.com Email: lhaas@johnsontrent.com ATTORNEYS FOR PLAINTIFFS/COUNTER DEFENDANTS CERTIFICATE OF SERVICE I certify that, in accordance with the Texas Rules of Civil Procedure, a true and correct copy of the foregoing document was served upon all counsel of record on the 28" day of January 2021. Karen D. Smith Via E-Service Kimberly Chojnacki BAKER DONELSON 1301 McKinney Street, Suite 3700 Houston, Texas 77010 /s/Leslee N. Haas LESLEE N. HAAS 10 EXHIBIT A 01/14/2021 THU 11:50 FAX 2818908975 Team Legal jo01/007 PATRICK M. LEVANTINO, No. 20-07-08961 tt IN THE DISTRICT COURT OF Peuie NICKOLAS LEVANTINO, AND LEVANTINO & COMPANY, P.C. MONTGOMERY COUNTY, TEXAS vs, STEPHEN A. LEVY 457TH JUDICIAL DISTRICT WAIVER OF NOTICE Our client, Karen D. Smith, has commissioned TEAM LEGAL now Lexitas to obtain records on Case #20100017 from the following custodian(s) for use in the above referenced case. PLEASE INDICATE YOUR COPY PREFERENCE BELOW BY CIRCLING YES OR NO, By purchasing a copy of these records, you will receive complimentary access through Team Legal's website to view the documents online in our fully searchable format, YES / NO (1) Conroe Police Department (Attn; Records) (Any & All Records) Please indicate if you would like to receive copies of Affidavits of No Records when produced by the custodian, QYES GINO T agree that I, and my firm, if any, shall be responsible, jointly and severally, for payment of the copies, litigation support services and/or products ordered on this waiver. I acknowledge that invoices are due and payable in accordance with the terms desoribed hereunder. 1 DO AGREE TO WAIVE THE NOTICE PERIOD. Q IDONOT AGREE TO WAIVE THE NOTICE PERIOD. Dated: Signed TEAM LEGAL T, Christopher Trent Johnson, Trent & Taylor, L.L.P. 919 Milam, Suite 1500 Houston, TX 77002 713-222-2323 Fax 713-222-2226 Email; ctrent@Johnsontrent.com Attorney for Plaintiffs) The Leader in Litigation Support SBA # 20209400 Please Return To: TEAM LEGAL now Lexitas 13100 Wortham Center Dr., Suite 140 Houston, TX 77065 713-937-4242 Fax 713-937-9995 becky.dickerson@lexitaslegal.com www. lexitaslegal.com/conciergerecords TERMS; Any cancellation of the above must be In writing. If the records have alroady been copied and fees incurred, then billing will be prorated accordingly. Payment on requested copies, litigation support services and/or products is due within thirty (30) days of the invoice date and shall be made payable to ‘Team Legal (Corporate Headquarters) located at 13100 Wortham Center Dr., Suite 140, Houston, Texas 7706S. Tour Legal reserves the right to deliver the above mentioned copies on a C.0.D, basis. ‘Team Legal may also refuse to honor copy requests on delinquent accounts until the past due balance is brought to a current standing. All amounts not paid when duc shall bear a 10% late fee. If collection for this invoice is placed in the hands of an attorney, attorney fecs equal to 30% of the total invoice price shall he due and owing. If any legal action is required, it is agreed that the venue for such shall be in Harris County, Texas. This agreement shall be consttued under Texus. laws. Order No. 28150 01/14/2021 THU 11:50 FAX 2818908975 Team Legal jo02/007 No. 20-07-08961 PATRICK M. LEVANTINO, IN THE DISTRICT COURT OF NICKOLAS LEVANTINO, AND LEVANTINO & COMPANY, P.C. MONTGOMERY COUNTY, TEXAS VS. STEPHEN A. LEVY 3 487TH JUDICIAL DISTRICT NOTICE OF INTENTION TO TAKE DEPOSITION BY WRITTEN QUESTIONS To Plaintiff(s) by and through their attorney(s) of record: T. Christopher Trent You will please take notice that twenty (20) days from the service of a copy hereof with attached questions, a deposition by written questions will be taken of Custodian of Records for: (1) Conroe Police Department (Attn: Records) (Any & All Records) 2300 Plantation Drive, Conroe, TX 77303 before a Notary Public for TEAM LEGAL now Loxitas 13100 Wortham Center Dr., Sulte 140, Houston, Texas 77065 713-937-4242, Fax 713-937-9995, www.lexitaslegal.com/conciergerecords or its designated agent, which deposition with attached questions may be used in evidence upon the trial of the above-styled and numbered cause pending in the above named court. Notice is further given that request is hereby made as authorized under Rule 200, Texas Rules of Civil Procedure, to the officer taking this deposition to issue a subpoena duces tecum and cause it to be served on the witness to produce any and all records as described on the attached questions and/or Exhibit(s) and any other such record in the possession, custody or control of the said witness, and every such record to which the witness may have access, pertaining to: Case #20100017 and to turn all such records over to the officer authorized to take this deposition so that photographic reproductions of the same may be made and attached to said deposition, . - TEAM LEGAL ‘Karen D, Smith Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 1301 McKinney, Suite 3700 ia Houston, TX 77010 713-650-9700 Fax 713-650-9701 G4 Attomey for Defendant(s) i ‘The Leader in "Litigation Support SBA # 00785001 1 hereby certify that a true and correct copy of the foregoing instrument has been forwarded to all Counsel of Record by hand delivery, fax, email, commercial delivery service, and/or certified mail, ‘eceipt requested, on this day. Dated: January 14, 2021 Order No, 28150 01/14/2021 THY 11:50 FAX 2819908975 Team Legal @jo03/007 No. 20-07-08961 PATRICK M. LEVANTINO, : IN THE DISTRICT COURT OF NICKOLAS LEVANTINO, AND LEVANTINO & COMPANY, P.C. MONTGOMERY COUNTY, TEXAS VS. STEPHEN A, LEVY 457TH JUDICIAL DISTRICT DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS Custodian of Records for: Conroe Police Department (Attn: Records) Records Pertaining To: Case 420100017 Type of Records; any and ail records (on paper and/or in electronic format) as described in the attached Exhibit 'A’ Please state your full name. Answer: Please state by whom you are employed and the business address. Answer: What is the title of your position or job? Answer; Are these memoranda, reports, records, or data compilations, outlined in the subpoena duces tecum, pertaining to the above- named person, in your custody or subject to your control, supervision or direction? Answer: 5. Are you able to identify these aforementioned records as the originals or true and correct copies of the originals? Answer: 6, Please hand to the Notary Public taking this written deposition copies of the memoranda, reports, records, or data compilations, mentioned in Question No. 4. Have you complied? If not, why? Answer; Are the copies which you have handed to the Notary Public taking this written deposition true and correct copies of such tmemoranda, reports, records, or data compilations? Answer: Order No. 28150.001 01/14/2021 THU 11:50 FAX 2818908975 Team Legal 004/007 8 Were such memoranda, reports, records, or data compilations kept in the regular course of business of this facility? Answer: 9 Was it in the regular course of business of this facility for a person with knowledge of the acts, events, conditions, opinion, or diagnoses, recorded to make the record or to transmit information thereof to be included in such record? Answer: 10. Were the entries on these records made at or shortly after the time of the transaction recorded? Answer: i Was the method of preparation of these records trustworthy? Answer: 12, Do the attached records reflect factual findings resulting from an investigation made pursuant to the authority granted by law relating to Conroe Police Department Case # 201000177 Answer: 13 Were the conclusions and opinions contained in the attached records based on the factual investigation of the officer(s) who investigated Conroe Police Department Case # 20100017? Answer: 14, In the event that no records can be found, are there document archives (i.e. microfiche, electronic data) or document retention policies which explain their absence? If yes, please explain those archives or policies and/or identify, by name, address, and telephone number, who has knowledge of those archives or policies. Answer; 15, For a document that no longer exists or that cannot be located, identify the document, state how and when it passed out of existence or could no longer be located, and the reasons for the disappearance. Also, identify each person having knowledge about the disposition or loss of the document, and identify any other document evidencing the lost document's existence or any facts about the lost document, 4, When identifying the document, you must state the following: 1 The nature of the document (c.g., letter, handwritten note). 2. The title or heading that appears on the document. 3 The date of the document and the date of each addendum, supplement, or other addition or change, 4 The identities of the author, signer of the document, and person on whose behalf or at whose request or direction the document was prepared or delivered. Order No, 28150.001 01/14/2021 THY 11:51 FAX 2818908975 Team Legal 005/007 b. When identifying the person, you must state the following: 1 The full name. 2. The present or last known residential address and residential telephone number. 3. The present or tast known office address and office telephone number. 4. The present occupation, job title, employer, and employer’s address, Answer: 16. Ifany document(s) is withheld from production under claim of privilege, then state with respect to each such document: 1 The information or material responsive to the request which has been withheld; 2 ‘The request to which the information or material relates, and; 3 The privilege or privileges asserted. Answer: WITNESS (Custodian of Records) Before me, the undersigned authority, on this day personally appeared known to me to be the person whose name is subscribed to the foregoing instrument in the capacity therein stated, who being first duly sworn, stated upon his/her oath that the answers to the foregoing questions are true and correct. I further certify that the records attached hereto are exact duplicates of the original records. SWORN TO AND SUBSCRIBED before me this day of. +20, ' NOTARY PUBLIC My Commission Expires: Order No, 28150,001 01/14/2021 THY 11:51 FAX 2818909975 Team Legal 006/007 EXHIBIT A (Documents to be Produced) Your entire file/any and all documents, communications, records and information related to and/or reflecting the handling, investigation, and/or evaluation of Conroe Police Department Case #20100017, specifically including but not limited to: ° Notes, field/personal notes, emails, witness statements, calculations, photographs, sketches, drawings, diagrams, memorandums, log books, notebooks, and reports of the Conroe Police Department and/or its Legal Department, Fraud Department, and/or officers, agents, and/or representatives, specifically including but not limited to Detective Jason Roper and fraud investigator(s) and any field/personal notes of each of these individuals; All communications and documents sent to or received from, or exchanged by and between Patrick Levantino and the Conroe Police Department; All correspondence, emails, communications and documents sent to or received from, or exchanged by and between any individual or entity other than Patrick Levantino and the Conroe Police Department; Logs reflecting any telephone calls, faxes, texts; Reconciliations, bookkeeping, financial diagnostics, forensic accounting, and audits; Please provide color copies of documents such as diagrams or documents containing writing/markings of color other than black on white; Any audio/video recordings of meetings, interviews, communications; Documents reflecting the status of the investigation. Order No. 28150.001 01/14/2021 THU 11:51 FAX 2818908975 Team Legal (007/007 DEPOSITION SUBPOENA TO TESTIFY OR PRODUCE DOCUMENTS OR THINGS _ THE STATE OF TEXAS To any Sheriff or Constable of the State of Texas or other person authorized to serve subpoenas under RULE 176 OF TEXAS RULES OF CIVIL PROCEDURE, GREETINGS - You are hereby commanded to subpoena and summon the following witness(es): Custodian of Records for: Conroe Police Department (Attn: Records) 2300 Plantation Drive Conroe, TX 77303 936-522-3200 to be and appear before a Notary Public of my designation for TEAM LEGAL now Lexitas 713-937-4242 13100 Wortham Center Dr., Suite 140, Houston, TX 77065 or its designated agent, on the forthwith day of Instanter at the office of the custodian and there under oath to make answers of certain written questions to be propounded to the witness and to bring and produce for inspection and photocopying any and all records (on paper and/or in electrantc format) as described in the attached Exhibit 'A' and any other such record in the possession, custody or control of the said witness, and every such record to which the witness may have access, pertaining to: Case #20100017 at any and all times whatsoever, then and there to give evidence at the instance of the Defendant(s), represented by Karen D, Smith, Attorney of Record, in that Certain Cause No. 20-07-08961, pending on the docket of the District Court of Texas, This Subpoena is issued under and by virtue of Rule 200 and Notice of Deposition Upon Written Questions on file with the above named court, styled PATRICK M, LEVANTINO, NICKOLAS LEVANTINO, AND mn LEVANTINO & COMPANY, P.C, SHELBY Re v8. Notary 1D 12981669 Sime AY 12, 2022 STEPHEN A, LEVY Nena crmacne cay ire, | and there remain from day to day and time to time until discharged according to law, WITNESS MY AND, is hy ofan,2021. hx NOTARY PUBLIC 176.8 Enforcement of Subpoena. (a) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both. OFFICER'S RETURN Came to hand this day of and executed this the day of 20. in the following manner: By delivering to the witness a true copy hereof, including the $1,00 witness fee as required by law. Returned this day of. 20 PROCESS SERVER Order No, 28150,001 a Td CHASE fer BUSINESS Printed from Chase for Business $10,000.00 May 7, 2020 Post date 22083 Check # Total — ‘JPMorgan Chase 022083 LEVANTINO & COMPANY, P.C. 21/1110 CERTIFIED |1PUBLIC ACCOUNTANTS: Wost Davis Siroct Conroe, 773 2 PAY 19 THE Stephen A. Levy | $ 10,000.00 ORDER OF Ten Thousand and 00/100" i DOLLARS 2323 Cumberland Oak Ct. Kingwood, TX 77345 MEMO 830 ff (fora noe 2083 bau OOOBAke ZO AAPOR On Pa ‘ ron penton mc HB wan Hae JPMorgan Chase Bank, N.A. Member FDIC ©2020 JPMorgan Chase & Co. Equal Opportunity Lender CHASE fo BUSINESS Printed from Chase for Business $20,000.00 May 6, 2020 Post date 22081 Check # Total mata sPMorgen Chase Bank, WA 022081 LEVANTINO & COMPANY, P.C. ‘seevinie CERTIFIED Pu IBLIC ACCOUNT) jest Davis Strat Conroe, 5/6/2020 936-441-6212 PAY TOT if Stephen A. Levy | $ **20,000.00 (DER Twenty Thousand and 00/100' DOLLARS 2323 Cumberland Oak Ct. Kingwood, TX 77345, MEMO 830 wO? 208 bir 12 bb BOOOG dt: Eramett raie ea anemone PES ime one pec cee _ . - i a JPMorgan Chase Bank, NA. Member FDIC ©2026 JPMorgan Chase & Co. Equal Opportunity Lender CHASEPrinted fromfo ChaseBUSINESS for Business $60,000.00 Apr 7, 2020 Post date 22054 Check # Total seein \JPMoryenspeaiitte Chase Bank, NA. 022054 INO & COMPANY, P.C_ CERTIFIED PUBLIC ACCOUNTANTS, fest Davis Street Conroe, 4/7/2020 135-441-6212 BADER Stephen A. Levy | $ “60,000.00 Sixty Thousand and 00/100 COLLARS 2323 Cumberland Oak Ct. Kingwood, TX 77345 MEMO Mh fury — a 830 vO? 2054" absOOOs abe 1 ‘ni D9¢ HET COMA A >LOREDBAEKONOLA SN WIETE PAPER WHENGPRACTISLOEATERHLcu Tas MARNNG RAL JPMorgan Chase Bank, N.A. Member FDIC ©2020 JPMorgan Chase & Co. Equal Opportunity Lender CHASE fo BUSINESS Printed from Chase for Business $50,000.00