in Re State Farm Lloyds

ACCEPTED
04-15-00474-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
7/28/2015 4:51:49 PM
KEITH HOTTLE
CLERK
04-15-00474-CV
No. ____________
Court of Appeals, Fourth District FILED IN
4th COURT OF APPEALS
San Antonio, Texas SAN ANTONIO, TEXAS
07/28/2015 4:51:49 PM
KEITH E. HOTTLE
Clerk
In re State Farm Lloyds
Relating to Cause Nos. 2014-CVF-001162-D1, 2014-CVF-001048-D1
in the 49th Judicial District Court
Webb County, Texas
RECORD ON MANDAMUS, VOLUME 1
J. Joseph Vale
jvale@atlashall.com
State Bar No. 24084003
Sofia A. Ramon
sramon@atlashall.com
State Bar No. 00784811
Dan K. Worthington
dkw@atlashall.com
State Bar No. 00785282
ATLAS, HALL & RODRIGUEZ, LLP
818 Pecan/P.O. Box 3725
McAllen, Texas 78501
(956) 682-5501 (phone)
(956) 686-6109 (facsimile)
Attorneys for Relator
State Farm Lloyds
July 28, 2015 Oral Argument Requested
Record on Mandamus
Relator State Farm Lloyds files this Record along with its Petition for Writ
of Mandamus filed on this same date, relating to Cause Nos. 2014-CVF-001162-
D1 and 2014-CVF-001048-D1 in the 49th Judicial District Court, Webb County,
Texas. State Farm Lloyds is e-filing the Record in two separate volumes,
including a volume for authenticated transcripts. The index for the entire Record is
attached as an exhibit, followed by Record Volume 1.
Respectfully submitted,
/s/ J. Joseph Vale
J. Joseph Vale
jvale@atlashall.com
State Bar No. 24084003
Sofia A. Ramon
sramon@atlashall.com
State Bar No. 00784811
Dan K. Worthington
dkw@atlashall.com
State Bar No. 00785282
ATLAS, HALL & RODRIGUEZ, LLP
818 Pecan/P.O. Box 3725
McAllen, Texas 78501
(956) 682-5501 (phone)
(956) 686-6109 (facsimile)
Attorneys for State Farm Lloyds
2
Verification
Before me, the undersigned notary, personally appeared J. Joseph Vale, who
being by me duly sworn, deposed and said:
1. My name is J. Joseph Vale. I am one of the attorneys for the
relator in the referenced cause. I am above the age of eighteen,
have never been convicted of a felony or a crime of moral
turpitude, and am competent to make this affidavit. The facts
stated herein are within my personal knowledge and are true
and correct.
2. The documents contained in Tabs 1 through 11 of the Record
on Mandamus are true and correct copies of certified copies
obtained from the Webb County District Clerk.
3. The documents contained in Tabs 12 through 19 are true and
correct copies, as per file-stamps or e-file confirmations on
same or as reflected by certificates of service by counsel herein
or as reflected by the trial judge's or clerk's signature or as
received from the trial court or clerk and/or as sent by my office
to the court, of the same documents filed and/or maintained by
the court in connection with the trial court proceedings
referenced above. Further, the Dockets contained in the record
are true and correct copies of the dockets in this matter as
printed from the I-Docket website.
~ MARIANELA TREVINO
Notary Public, State of Texas
l1~r~ Notary Public My commission expires:
..
\~.~ ~J STATE OF TEXAS
~ My Comm. Exp. 03-27·2019
3
Certificate of Service
I certify that the foregoing document (and any attachments) was
electronically filed with the Clerk of the Court using the electronic case filing
system of the Court. I also certify that a true and correct copy of the foregoing was
served on all counsel of record on July 28, 2015, as follows:
Recipient: Attorney for: Served by:
J. Steve Mostyn Plaintiffs/real parties Electronically
(jsmdocketefile@mostynlaw.com) in interest if available, or
THE MOSTYN LAW FIRM by facsimile
3810 West Alabama Street Raul Rodriguez,
Houston, Texas 77027 Noemi Rodriguez,
Fax: 713-714-1111 and Alma Pena
and
Gilberto Hinojosa
(ghinojosa@ghinojosalaw.net)
LAW OFFICE OF GILBERTO HINOJOSA,
P.C.
622 E. Saint Charles St.
Brownsville, Texas 78520
Fax: 956-544-1335
Hon. Jose A. Lopez Trial Certified mail,
Webb County Courthouse judge/respondent return receipt
1110 Victoria St. Suite 304 requested
Laredo, Texas 78040
/s/ J. Joseph Vale
J. Joseph Vale
4
Record Index
Volume 1
Date Tab Trial Cause1 Document
Pena Docket [printed from I-Docket]
Rodriguez Docket [printed from I-Docket]
06/03/14 1 Pena Plaintiff’s Original Petition
06/13/14 2 Rodriguez Plaintiffs’ Original Petition
07/14/14 3 Pena State Farm Lloyds’ Special Exceptions and
Original Answer
07/14/14 4 Rodriguez State Farm Lloyds’ Special Exceptions and
Original Answer
01/22/15 5 Pena Plaintiff’s Motion for Entry of Protective Order
01/22/15 6 Rodriguez Plaintiffs’ Motion for Entry of Protective Order
02/10/15 7 Pena Defendants’ Response and Objections to
Plaintiff’s Motion for Protective Order and
Motion for Entry of State Farm’s Proposed
Protective Order
02/23/15 8 Rodriguez Defendants’ Response and Objections to
Plaintiffs’ Motion for Protective Order and
Motion for Entry of State Farm’s Proposed
Protective Order
1
As explained in the Petition for Writ of Mandamus, this original action relates to two separate
trial cause numbers, which the trial judge considered jointly for purposes of the order and motion
at issue. In this Index, “Pena” will be used for documents filed only in Cause No. 2014-CVF-
001048-D1, “Rodriguez” will be used for documents filed only in Cause No. 2014-CVF-001162-
D1, and “Both” will be used for documents filed in both cause numbers.
5
03/03/15 9 Pena Plaintiff’s Reply to Defendant’s Response and
Objections to Plaintiff’s Motion for Entry of
Protective Order and Plaintiff’s Response to
Defendants’ Motion for Entry of State Farm’s
Proposed Protective Order
03/23/15 10 Pena Plaintiff’s Proposed Amended Protective Order
03/25/15 11 Pena Defendant State Farm’s Motion to Strike or
Reconsider Plaintiff’s Amended Protective
Order Regarding Confidential Information and
Motion for Entry of Protective Order
05/22/15 12 Pena Signed Unopposed Order Granting Motion of
Attorneys Huseman & Stewart P.L.L.C. to
Withdraw and for Substitution of Counsel for
Defendants
05/22/15 13 Rodriguez Signed Unopposed Order Granting Motion of
Attorneys Huseman & Stewart P.L.L.C. to
Withdraw and for Substitution of Counsel for
Defendants
06/16/15 14 Pena Plaintiff’s First Amended Petition
06/16/15 15 Rodriguez Plaintiffs’ First Amended Petition
07/02/15 16 Pena Proposed Protective Order
07/02/15 17 Rodriguez Proposed Protective Order
07/13/15 18 Pena Signed Protective Order
07/13/15 19 Rodriguez Signed Protective Order
6
Authenticated Transcripts Volume
03/05/15 Both Hearing on Motion to Strike, Motion to Compel,
and Plea in Abatement
04/09/15 Both Hearing on Motion to Enforce, Motion to
Quash, and other Motions
7
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All | Motions | Orders | Answers / Citations | Other Documents / Actions | Costs | Payments | Ledger
Civil Docket; Case 2014CVF001048 D1; Accounts, Contracts, Notes
PENA, ALMA vs LANIER, BECKY et al
Filed 06/03/2014 - Disposition:
49th District Court, District Clerk, Webb County, Texas
Court Settings:
12/01/2015 13:30 PM
12/14/2015 8:00 AM
Date Description/Comments Reference Typ Amount
06/03/2014 Case Status entered as ACTV. TXT
06/03/2014 Case Status ACTV: Active "
06/03/2014 For STATE FARM LLOYDS "
06/03/2014 *IMG*CONTRACT "
06/09/2014 Court date/time: 9/04/2014 13:30 H earing Type: 17 Clndr Call "
06/09/2014 Assignment of court date/time. "
06/09/2014 Status entered as Open "
CALENDAR CALL FAXED TO ATTORNEY J. STE VE MOSTYN
06/09/2014 "
AND ATTACHED
06/09/2014 COPY TO CITATIONS. (LT) "
*IMG*(4) CITATIONS ISSUED TO STATE FAR M LLOYDS AND
06/09/2014 "
BECKY LANIER
06/09/2014 AND PLACED IN PRIVATE SERVER BOX. (LT) "
06/09/2014 "
06/09/2014 **** "
CIATIONS RELEASED AND RETURNED TO ATTO RNEY IN
06/09/2014 "
FED EX ENVELOPE
06/09/2014 PROVIDED BY ATTORNEY. 06/19/2014 (LT) "
06/09/2014 JURY DEMAND PAID BY ATTORNEY J. STEVE MOSTYN. (LT) "
*IMG* CITATION RETURN SHOWING SERVICE AS TO STATE
07/07/2014 "
FARM LLOYDS BY
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SERVING ITS ATTORNEY FOR SERVICE RENDI BLACK. DOS
07/07/2014 "
6/30/14. MG
*IMG* DEFENDANT STATE FARM LLOYD'S SPE CIAL
07/14/2014 "
EXCEPTIONS AND ORIGINAL
07/14/2014 ANSWER. (ATTY. VAN HUSEMAN) MG "
*IMG* DEFENDANT, BECKY LANIER'S, ORIGI NAL ANSWER.
07/14/2014 "
(ATTY. VAN
07/14/2014 HUSEMAN). MG "
*IMG* CITATION RETURN SHOWING SERVICE AS TO BECKY
07/17/2014 "
LANIER. DOS 7/9/14.
07/17/2014 MG "
*IMG* DEFENDANTS', STATE FARM LLOYDS A ND BECKY
08/07/2014 "
LANIER, PLEA IN
08/07/2014 ABATEMENT. MG "
JURY PRE-TRIAL GUIDELINE ORDER (RECEIV ED) SENT TO
08/20/2014 "
COURT
08/20/2014 COORDINATOR (PF) "
*IMG* DEFENDANT'S DECLARATION INVOKING RULE 167
08/25/2014 "
OF THE TEXAS RULES OF
CIVIL PROCEDURE AND CHAPTER 42 OF THE CIVIL
08/25/2014 "
PRACTICE AND REMEDIES
08/25/2014 CODE (PF) "
08/26/2014 Court date/time: 9/04/2014 13:30 H earing Type: 17 Clndr Call "
08/26/2014 Status changed from Open to Canc e "
08/26/2014 GUIDELINE ORDER RECEIVED "
09/08/2014 Court date/time: 4/28/2015 13:30 H earing Type: 2 Pre-Trial "
09/08/2014 Assignment of court date/time. "
09/08/2014 Status entered as Open "
09/08/2014 Court date/time: 5/18/2015 8:00 H earing Type: 4 Jury Trial "
09/08/2014 Assignment of court date/time. "
09/08/2014 Status entered as Open "
PTGO SIGNED BY JUDGE JOE LOPEZ AND COP IES SENT TO
09/09/2014 "
COUNSEL VIA FAX
09/09/2014 FSR "
*IMG* PRE-TRIAL GUIDELINE ORDER. PRE-T RIAL SET FOR
09/09/2014 "
4/28/15 AT 1:30PM
AND TRIAL SET FOR 5/18/14 AT 8AM. SIGN ED 8/28/14 BY
09/09/2014 "
JUDGE LOPEZ.
09/09/2014 FAXED TO TIFFANY DE BOTT AND J. STEVE MESTYN. MG "
*IMG* PLAINTIFF'S MOTION TO STRIKE AND /OR
01/22/2015 "
OVERRULE DEFENDANTS'
OBJECTIONS TO WRITTEN DISCOVERY AND MO TION TO
01/22/2015 "
COMPEL SUPPLEMENTAL
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01/22/2015 DISCOVERY RESPONSES AND DOCUMENTS (PF) "
*IMG* PLAINTIFF'S MOTION FOR ENTRY OF PROTECTIVE
01/22/2015 "
ORDER (PF)
ORDER GRANTING PLAINTIFF'S MOTION FOR ENTRY OF
01/22/2015 "
PROTECTIVE
01/22/2015 ORDER (RECEIVED) (PF) "
ORDER ON PLAINTIFF'S MOTION TO STRIKE AND/OR
01/22/2015 "
OVERRULE DEFENDANTS
OBJECTIONS TO WRITTEN DISCOVERY AND MO TION TO
01/22/2015 "
COMPEL SUPPLEMENTAL
DISCOVERY RESPONSES AND DOCUMENTS (REC EIVED)
01/22/2015 "
(PF)
ORDER SETTING HEARING ON PLAINTIFF'S M OTIONS SENT
01/23/2015 "
TO COUNSEL VIA
01/23/2015 FAX FSR "
01/23/2015 Court date/time: 2/17/2015 9:00 H earing Type: 111 Mot/Strike "
01/23/2015 Assignment of court date/time. "
01/23/2015 Status entered as Open "
*IMG* ORDER SETTING HEARING ON PLAINTI FF'S MOTION
01/26/2015 "
FOR ENTRY OF
PROTECTIVE ORDER AND PLAINTIFF'S MOTIO N TO STRIKE
01/26/2015 "
AND/OR OVERRULE
DEFENDANTS' OBJECTIONS TO WRITTEN DISC OVERY AND
01/26/2015 "
MOTION TO COMPEL
SUPPLEMENTAL DISCOVERY RESPONSES SET F OR FEB. 17,
01/26/2015 "
2015 AT 9:00 A.M.
FAXED TO J. STEVEN MOSTYN AND VAN HUSE MAN BY
01/26/2015 "
COURT COORDINATOR (PF)
*IMG* DEFENDANTS', STATE FARM LLOYDS A ND BECKY
01/27/2015 "
LANIER, PLEA IN
01/27/2015 ABATEMENT. MG "
ORDER SETTING HEARING. RECEIVED/SENT T O COURT
02/02/2015 "
COORDINATOR. MG
02/02/2015 *IMG* DEFENDANTS' DESIGNATION OF EXPER TS. MG "
02/05/2015 *IMG* MOTION FOR CONTINUANCE (PF) "
02/05/2015 ORDER GRANTING CONTINUANCE (RECEIVED) (PF) "
ORDER SETTING HEARING (RECEIVED) SENT TO COURT
02/05/2015 "
COORDINATOR (PF)
02/06/2015 ORDER DENYING DEFENDANTS' PLEA IN ABAT EMENT. MG "
*IMG* PLAINTIFF'S RESPONSE TO DEFENDAN TS' PLEA IN
02/06/2015 "
ABATEMENT. MG
02/09/2015 Court date/time: 2/12/2015 9:00 H earing Type: 67 Mnt/Contin "
02/09/2015 Assignment of court date/time. "
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02/09/2015 Status entered as Open "
*IMG* FIAT. MOTION FOR CONTINUANCE SET FOR2/12/15
02/09/2015 "
AT 9AM. FAXED TO J.
STEVE MOSTYN, TIFFANY DEBOLT, AND BRUC E J.
02/09/2015 "
WERSTAK III. MG
ORDER DENYING DEFENDANTS' MOTION FOR C
02/10/2015 "
ONTINUANCE. RECEIVED. MG
*IMG* PLAINTIFF'S RESPONSE TO DEFENDAN TS' MOTION
02/10/2015 "
FOR CONTINUANCE. MG
*IMG* DEFENDANTS' RESPONSE AND OBJECTI ONS TO
02/10/2015 "
PLAINTIFF'S MOTION FOR
PROTECTIVE ORDER AND MOTION FOR ENTRY OF STATE
02/10/2015 "
FARM'S PROPOSED
02/10/2015 PROTECTIVE ORDER. MG "
*IMG* DEFENDANTS' RESPONSE TO PLAINTIF F, ALMA
02/10/2015 "
PENA'S, MOTION TO
STRIKE AND/OR OVERRULE DEFENDANTS' OBJ ECTIONS
02/10/2015 "
TO WRITTEN DISCOVERY
AND MOTION TO COMPEL SUPPLEMENTAL DISC OVERY
02/10/2015 "
RESPONSES AND DOCUMENTS.
02/10/2015 MG "
*IMG* VERIFIED MOTION TO ADMIT COUNSEL PRO HAC
02/11/2015 "
VICE
02/11/2015 (NO ORDER/FIAT ATTACHED) (PF) "
CASE CALLED. HONORABLE JUDGE JOSE LOPE Z
02/12/2015 "
PRESIDING. COURT REPORTER
CINDY LENZ. HEARING:MOTION FOR CONTINU ANCE.
02/12/2015 "
ATTY. ANDREW TAYLOR WAS
PRESENT FOR PLAINTIFF. ATTY. BRUCE WER STAK WAS
02/12/2015 "
PRESENT FOR DEFENDANT.
CONTINUANCE GRANTED. CASE WAS RESET TO 3/5/15 AT
02/12/2015 "
9AM FOR MOTION TO
02/12/2015 STRIKE. MG "
*IMG* ORDER GRANTING CONTINUANCE. SIGN ED 2/12/14
02/12/2015 "
BY JUDGE LOPEZ.
COPIES MAILED OUT TO VAN HUSEMAN AND J . STEVE
02/12/2015 "
MOSTYN. MG
02/13/2015 Court date/time: 2/12/2015 9:00 H earing Type: 67 Mnt/Contin "
02/13/2015 Status changed from Open to Held "
02/13/2015 Court date/time: 2/17/2015 9:00 H earing Type: 111 Mot/Strike "
02/13/2015 Status changed from Open to Post / "
02/13/2015 Court date/time: 3/05/2015 9:00 H earing Type: 111 Mot/Strike "
02/13/2015 Assignment of court date/time. "
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02/13/2015 Status entered as Open "
*IMG* REQUEST FOR PERMISSION TO ENTER PROPERTY
02/13/2015 "
AND TO INSPECT,
02/13/2015 MEASURE, AND PHOTOGRAPH. MG "
02/16/2015 FIAT. RECEIVED/SENT TO COURT COORDINAT OR. MG "
*IMG* DEFENDANTS', STATE FARM LLOYDS A ND BECKY
02/16/2015 "
LANIER, FIRST
02/16/2015 SUPPLEMENTAL PLEA IN ABATEMENT. MG "
FIAT. DEFENDANTS'S MOTION TO COMPEL PL AINTIFF'S
02/18/2015 "
DISCOVERY RESPONSES
TO STATE FARM LLOYDS FIRST OF INTERROG ATORIES
02/18/2015 "
AND REQUESTS FOR
PRODUCTION FILED BY DEFENDANT, STATE F ARM
02/18/2015 "
LLOYDS. RECEIVED/SENT TO
02/18/2015 COURT COORDINATOR. MG "
*IMG* DEFENDANT'S MOTION TO COMPEL PLA INTIFF'S
02/18/2015 "
DISCOVERY RESPONSES TO
STATE FARM LLOYDS FIRST SET OF INTERRO GATORIES
02/18/2015 "
AND REQUESTS FOR
02/18/2015 PRODUCTION. MG "
02/18/2015 Court date/time: 3/05/2015 9:00 H earing Type: 91 PLE/ABATE "
02/18/2015 Assignment of court date/time. "
02/18/2015 Status entered as Open "
ORDER GRANTING CONTINUANCE SIGNED BY J UDGE JOE
02/18/2015 "
LOPEZ AND COPIES SENT
TO COUNSEL VIA FAX TOGETHER WITH ORDE R SETTING
02/18/2015 "
HEARING FSR
*IMG* ORDER GRANTING CONTINUANCE. SIGN ED 2/17/15
02/23/2015 "
BY JUDGE LOPEZ.
02/23/2015 FAXED TO J. STEVE MOSTYN AND TIFFANY D EBOLT. MG "
*IMG* ORDER SETTING HEARING. MOTION SE T FOR 3/5/15
02/23/2015 "
AT 9AM. FAXED TO
02/23/2015 J. STEVE MOSTYN AND TIFFANY DEBOLT. MG "
ORDER GRANTING APPLICATION FOR ADMISSI ON OF
02/24/2015 "
COUNSEL PRO HAC VICE
02/24/2015 (RECEIVED) SENT TO COURT COORDINATOR ( PF) "
ORDER SETTING HEARING ON MOTION TO COM PEL SENT
02/25/2015 "
TO COUNSEL
02/25/2015 VIA FAX FSR "
FIAT SETTING PLEA IN ABATEMENT HEARING SENT TO
02/25/2015 "
COUNSEL VIA FAX
02/25/2015 FSR "
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AGREED ORDER GRANTING APPLICATION FOR ADMISSION
02/25/2015 "
OF COUNSEL
PRO HAC VICE (RECEIVED) SENT TO COURT COORDINATOR
02/25/2015 "
(PF)
02/26/2015 Court date/time: 3/05/2015 9:00 H earing Type: 66 Mtn/Compel "
02/26/2015 Assignment of court date/time. "
02/26/2015 Status entered as Open "
*IMG* FIAT. DEFENDANT'S MOTION TO COMP EL
02/26/2015 "
PLAINTIFF'S DISCOVERY
RESPONSES TO STATE FARM LLOYDS OF INTE
02/26/2015 "
RROGATORIES AND REQUESTS FOR
PRODUCTION SET FOR 3/5/15 AT 9AM. FAXE D TO J. STEVE
02/26/2015 "
MOSTYN, TIFFANY
02/26/2015 DEBOLT, AND BRUCE J. WERSTAK III. MG "
*IMG* FIAT. FIRST SUPPLEMENTAL PLEA IN ABATEMENT
02/26/2015 "
SET FOR 3/5/15 AT
9AM. FAXED TO J. STEVE MOSTYN, TIFFANY DEBOLT, AND
02/26/2015 "
BRUCE J. WERSTAK
02/26/2015 III. MG "
ORDER ON ADMISSION OF COUNSEL PRO HAC VICE
02/26/2015 "
SIGNED
*IMG* AGREED ORDER GRANTING APPLICATIO N FOR
02/27/2015 "
ADMISSION OF COUNSEL
PRO HAC VICE SIGNED, FAXED TO J. STEVE N MOSTYN,
02/27/2015 "
TIFFANY DEBOLT,
BRUCE J. WERSTAK, III AND JONATHAN M. REDGRAVE BY
02/27/2015 "
COURT COORDINATOR
02/27/2015 (PF) "
*IMG* DEFENDANTS' REPLY BRIEF IN SUPPO RT OF THEIR
02/27/2015 "
VERIFIED PLEA IN
02/27/2015 ABATEMENT. MG "
*IMG* PLAINTIFF'S REPLY TO DEFENDANTS' RESPONSE TO
03/03/2015 "
PLAINTIFF'S MOTION
TO COMPEL DEFENDANTS TO PRODUCE SUPPLE MENTAL
03/03/2015 "
DISCOVERY RESPONSES AND
DOCUMENTS AND MOTION TO STRIKE/OVERRUL E
03/03/2015 "
OBJECTIONS. MG
*IMG* PLAINTIFF'S REPLY TO DEFENDANTS' RESPONSE
03/03/2015 "
AND OBJECTIONS TO
PLAINTIFF'S MOTION FOR ENTRY OF PROTEC TIVE ORDER
03/03/2015 "
AND PLAINTIFF'S
RESPONSE TO DEFENDANTS' MOTION FOR ENT RY OF
03/03/2015 "
STATE FARM'S
03/03/2015 PROPOSED PROTECTIVE ORDER. (SL) "
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ORDER DENYING...REC'D AND SENT TO COUR T
03/03/2015 "
COORDINATOR. (SL)
*IMG* PLAINTIFF'S RESPONSE TO DEFENDAN T'S MOTION
03/03/2015 "
TO COMPEL
PLAINTIFF'S DISCOVERY RESPONSES TO STA TE FARM
03/03/2015 "
LLOYDS' FIRST SET OF
INTERROGATORIES AND REQUESTS FOR PRODU CTION.
03/03/2015 "
(SL) ORDER
DENYING....REC'D AND SENT TO COURT COO
03/03/2015 "
RDINATOR.(SL)
CASE CALLED. HONORABLE JUDGE JOSE LOPE Z
03/05/2015 "
PRESIDING. COURT REPORTER
CINDY LENZ. HEARING:MOTION TO STRIKE/M OTION TO
03/05/2015 "
COMPEL/PLEA IN
ABATEMENT. ATTYS. ANDREW TAYLOR AND GI LBERTO
03/05/2015 "
HINOJOSA WERE PRESENT
FOR PLAINTIFFS. ATTYS. BRUCE WERSTAK, VAN
03/05/2015 "
HUSEMAN, TIFFANY DEBOLT,
JONATHAN REDGRANE, AND FELIX ARAMBULA WERE
03/05/2015 "
PRESENT FOR DEFENDANTS.
PLAINTIFF'S MOTION TO COMPEL, REQUEST FOR
03/05/2015 "
PRODUCTION 5:OBJECTIONS
OVERRULED. COUNSEL FOR PLAINTIFFS TO D ESTROY ALL
03/05/2015 "
DISCOVERY EXCHANGED
AFTER ONE YEAR THE CASE IS RESOLVED OR RETURN IT
03/05/2015 "
TO DEFENDANTS
03/05/2015 COUNSEL. ORDER TO BE SUBMITTED. MG "
03/06/2015 Court date/time: 3/05/2015 9:00 H earing Type: 111 Mot/Strike "
03/06/2015 Status changed from Open to Held "
03/06/2015 Court date/time: 3/05/2015 9:00 H earing Type: 91 PLE/ABATE "
03/06/2015 Status changed from Open to Held "
03/06/2015 Court date/time: 3/05/2015 9:00 H earing Type: 66 Mtn/Compel "
03/06/2015 Status changed from Open to Held "
*IMG* PLAINTIFF'S MOTION TO QUASH THE ORAL/VIDEO
03/13/2015 "
DEPOSITION OF ALMA
03/13/2015 PENA. ATTACHED WITH ORDER. MG "
03/16/2015 Court date/time: 3/26/2015 9:00 H earing Type: 118 MTN/QUASH "
03/16/2015 Assignment of court date/time. "
03/16/2015 Status entered as Open "
*IMG* FIAT PLAINTIFFS MOTION TO QUASH THE
03/16/2015 "
ORAL/VIDEO DEPOSITION OF
ALMA PENA SET FOR MARCH 26, 2015 AT 9: 00 A.M. FAXED
03/16/2015 "
TO J. STEVEN
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MOSTYN, TIFFANY DEBOLT AND BRUCE WERST AK, III BY
03/16/2015 "
COURT COORDINATOR
03/16/2015 (PF) "
*IMG* DEFENDANTS' MOTION TO EXCLUDE PL AINTIFF'S
03/19/2015 "
EXPERTS' OPINIONS.
ATTACHED WITH FIAT. RECEIVED/SENT TO C OURT
03/19/2015 "
COORDINATOR. MG
*IMG* NOTICE OF INTENTION TO TAKE ORAL /VIDEO
03/23/2015 "
DEPOSITION OF GENE RILEY
03/23/2015 OF VALLEY WIDE RESTORATION SERVICES, I NC. MG "
*IMG* NOTICE OF INTENTION TO TAKE ORAL /VIDEO
03/23/2015 "
DEPOSITION OF PHILIP N.
03/23/2015 SPOTTS OF THE MISSION GROUP. MG "
*IMG* NOTICE OF INTENTION TO TAKE ORAL /VIDEO
03/23/2015 "
DEPOSITION OF RANDAL G.
03/23/2015 CASHIOLA OF THE CASHIOLA LAW FIRM. MG "
*IMG* NOTICE OF INTENTION TO TAKE ORAL /VIDEO
03/23/2015 "
DEPOSITION OF GILBERTO
03/23/2015 HINOJOSA. MG "
03/23/2015 *IMG* RULE 11 AGREEMENT. MG "
*IMG* MOTION TO QUASH DEPOSITIONS OF S TATE FARM
03/24/2015 "
LLOYDS CORPORATE
REPRESENTATIVE AND OBJECTIONS TO DEPOS ITION
03/24/2015 "
TOPICS, NO ORDER ATTACHED
03/24/2015 (PF) "
AMENDED PROTECTIVE ORDER (RECEIVED) SE NT TO
03/24/2015 "
COURT COORDINATOR (PF)
03/25/2015 Court date/time: 4/28/2015 9:00 H earing Type: 157 MotExclu "
03/25/2015 Assignment of court date/time. "
03/25/2015 Status entered as Open "
03/25/2015 Court date/time: 4/28/2015 9:00 H earing Type: 2 Pre-Trial "
03/25/2015 Assignment of court date/time. "
03/25/2015 Status entered as Open "
03/25/2015 Court date/time: 4/28/2015 13:30 H earing Type: 2 Pre-Trial "
03/25/2015 Status changed from Open to Canc e "
FIAT SETTING MOTION TO EXCLUDE PLAINTI FF'S
03/25/2015 "
EXPERTS' OPINION SENT TO
03/25/2015 COUNSEL VIA FAX FSR "
PRE-TRIAL CONFERENCE NOTICE OF COURT S ETTING
03/25/2015 "
RESET SENT TO COUNSEL
03/25/2015 VIA FAX FSR "
FIAT-MOTION TO STRIKE OR RECONSIDER PL AINTIFFS
03/25/2015 "
AMENDED
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PROTECTIVE ORDER REGARDING CONFIDENTIA L
03/25/2015 "
INFORMATION AND MOTION FOR
ENTRY OF PROTECTIVE ORDER (RECEIVED) S ENT TO
03/25/2015 "
COURT COORDINATOR (PF)
*IMG* DEFENDANT STATE FARM'S MOTION TO STRIKE OR
03/25/2015 "
RECONSIDER
PLAINTIFFS AMENDED PROTECTIVE ORDER RE GARDING
03/25/2015 "
CONFIDENTIAL
INFORMATION AND MOTION FOR ENTRY OF PR OTECTIVE
03/25/2015 "
ORDER (NO ORDER) (PF)
03/26/2015 "
03/26/2015 "
03/26/2015 Court date/time: 4/28/2015 9:00 H earing Type: 111 Mot/Strike "
03/26/2015 Assignment of court date/time. "
03/26/2015 Status entered as Open "
*IMG* NOTICE OF COURT SETTING-RE-SET T O APRIL 28,
03/26/2015 "
2015 AT 9:00 A.M.
FOR PRE-TRIAL CONFERENCE FAXED TO J. S TEVEN
03/26/2015 "
MOSTYN, TIFFANY DEBOLT
03/26/2015 AND BRUCE J. WERSTAK, III BY COURT COO RDINATOR (PF) "
*IMG* FIAT MOTION TO EXCLUDE PLAINTIFF 'S EXPERTS
03/26/2015 "
OPINIONS FILED BY
DEFENDANTS STATE FARM LLOYDS AND BECKY LANIER
03/26/2015 "
SET FOR APRIL 28, 2015
AT 9:00 A.M. FAXED TO J. STEVE MOSTYN, TIFFANY
03/26/2015 "
DEBOLT AND BRUCE
03/26/2015 WERSTAK, III BY COURT COORDINATOR (PF) "
*IMG* PLAINTIFF'S MOTION TO QUASH THE ORAL/VIDEO
03/26/2015 "
DEPOSITIONS OF GENE
RILEY, PHILIP SPOTTS, RANDY CASHIOLA, AND GILBERTO
03/26/2015 "
HINJOSOSA
03/26/2015 (PF) "
ORDER GRANTING PLAINTIFFS' MOTION TO Q UASH
03/26/2015 "
DEFENDANT'S NOTICES
OF INTENTION TO TAKE DEPOSITIONS OF GE NE RILEY,
03/26/2015 "
PHILIP SPOTTS, RANDY
03/26/2015 CASHIOLA, AND GILBERTO HINOJOSA (RECEI VED) (PF) "
FIAT SETTING HEARING ON MOTION TO STRI KE OR
03/27/2015 "
RECONSIDER PLAINTIFF'S
AMENDED PROTECTIVE ORDER SENT TO COUNS EL VIA
03/27/2015 "
FAX FSR
*IMG* PLAINTIFF'S MOTION TO ENFORCE CO URT ORDER
03/27/2015 "
REGARDING PLAINTIFFS
03/27/2015 MOTION TO COMPEL DISCOVERY (PF) "
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ORDER GRANTING PLAINTIFF'S MOTION TO E NFORCE
03/27/2015 "
COURT ORDER
REGARDING PLAINTIFF'S MOTION TO COMPEL DISCOVERY
03/27/2015 "
(RECEIVED) (PF)
FIAT-MOTION TO QUASH THE ORAL/VIDEO DE POSITION
03/27/2015 "
OF GENE RILEY
PHILIP SPOTTS, RANDY CASHIOLA AND GILB ERTO
03/27/2015 "
HINOJOSA (RECEIVED) SENT
03/27/2015 TO COURT COORDINATOR (PF) "
FIAT-PLAINTIFF'S MOTION TO ENFORCE COU RT ORDER
03/27/2015 "
REGARDING
PLAINTIFF'S MOTION TO COMPEL DISCOVERY AND
03/27/2015 "
DEFENDANT'S MOTION TO
QUASH DEPOSITIONS OF STATE FARM LLOYDS
03/27/2015 "
CORPORATE REPRESENTATIVE AND
OBJECTIONS TO DEPOSITION TOPIC (RECEIV ED) SENT TO
03/27/2015 "
COURT COORDINATOR
03/27/2015 (PF) "
*IMG* FIAT. MOTION TO STRIKE OR RECONS IDER
03/27/2015 "
PLAINTIFF'S AMENDED
PROTECTIVE ORDER REGARDING CONFIDENTIA L
03/27/2015 "
INFORMATION AND MOTION FOR
ENTRY OF PROTECTIVE ORDER FILED BY DEF ENDANT,
03/27/2015 "
STATE FARM LLOYDS SET
FOR 4/28/15 AT 9AM. FAXED TO J. STEVE MOSTYN, TIFFANY
03/27/2015 "
DEBOLT, AND
03/27/2015 BRUCE J. WERSTAK III. MG "
03/27/2015 FIAT. RECEIVED/SENT TO COURT COORDINAT OR. MG "
03/27/2015 FIAT. RECEIVED/SENT TO COURT COORDINAT OR. MG "
03/27/2015 FIAT. RECEIVED/SENT TO COURT COORDINAT OR. MG "
*IMG* DEFENDANT STATE FARM LLOYDS' OPP OSITION TO
03/27/2015 "
PLAINTIFF'S MOTION
TO ENFORCE COURT ORDER AND MOTION FOR
03/27/2015 "
CLARIFICATION AND
RECONSIDERATION OF PLAINTIFFS' MOTIONS TO COMPEL
03/27/2015 "
AND STRIKE. MG
03/30/2015 Court date/time: 4/09/2015 9:00 H earing Type: 20 Mtn Enforc "
03/30/2015 Assignment of court date/time. "
03/30/2015 Status entered as Open "
03/30/2015 Court date/time: 4/09/2015 9:00 H earing Type: 118 MTN/QUASH "
03/30/2015 Assignment of court date/time. "
03/30/2015 Status entered as Open "
03/31/2015 Court date/time: 4/09/2015 9:00 H earing Type: 37 Motions "
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03/31/2015 Assignment of court date/time. "
03/31/2015 Status entered as Open "
*IMG* FIAT. PLAINTIFF'S MOTION TO ENFO RCE COURT
03/31/2015 "
ORDER REGARDING
PLAINTIFF'S MOTION TO COMPEL DISCOVERY AND
03/31/2015 "
DEFENDANT'S MOTION TO
QUASH DEPOSITIONS OF STATE FARM LLOYDS
03/31/2015 "
CORPORATE REPRESENTATIVE AND
OBJECTIONS TO DEPOSITION TOPICS SET FO R 4/9/15 AT
03/31/2015 "
9AM. FAXED TO J.
STEVE MOSTYN, VAN HUSEMAN AND BRUCE J. WERSTAK
03/31/2015 "
III. MG
*IMG* FIAT. OPPOSITION TO PLAINTIFF'S MOTION TO
03/31/2015 "
ENFORCE COURT ORDER
AND MOTION FOR CLARIFICATION AND RECON
03/31/2015 "
SIDERATION OF PLAINTIFFS'
MOTION TO COMPEL AND STRIKE FILED BY D EFENDANT
03/31/2015 "
STATE FARM LLOYDS SET
FOR 4/9/15 AT 9AM. FAXED TO J. STEVE M OSTYN, TIFFANY
03/31/2015 "
DEBOLT, AND
03/31/2015 BRUCE J. WERSTAK III. MG "
*IMG* FIAT. MOTION TO QUASH THE ORAL/V IDEO
03/31/2015 "
DEPOSITIONS OF GENE RILEY,
PHILIP SPOTTS, RANDY CASHIOLA AND GILB ERTO
03/31/2015 "
HINOJOSA FILED BY
PLAINTIFF, ALMA PENA SET FOR 4/28/15 A T 9AM. FAXED
03/31/2015 "
TO J. STEVE
MOSTYN, TIFFANY DEBOLT, AND BRUCE J. W ERSTAK III.
03/31/2015 "
MG
*IMG* NOTICE OF INTENTION TO TAKE ORAL AND VIDEO
04/02/2015 "
DEPOSITION OF MR.
04/02/2015 PENA. MG "
*IMG* PLAINTIFF'S MOTION TO QUASH THE ORAL AND
04/06/2015 "
VIDEOTAPED DEPOSITION
04/06/2015 OF MR. PENA. ATTACHED WITH ORDER. MG "
ORDER GRANTING PLAINTIFF'S MOTION TO Q UASH
04/06/2015 "
DEFENDANT'S NOTICES
OF INTENTION TO TAKE DEPOSITION OF MR PENA
04/06/2015 "
(RECEIVED) (PF)
*IMG* PLAINTIFF'S MOTION TO QUASH THE ORAL AND
04/06/2015 "
VIDEOTAPED DEPOSITION
04/06/2015 OF MR. PENA (PF) "
*IMG* PLAINTIFF'S REPLY TO DEFENDANT S TATE FARM
04/07/2015 "
LLOYD'S OPPOSITION TO
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PLAINTIFF'S MOTION TO ENFORCE COURT OR DER AND
04/07/2015 "
RESPONSE TO DEFENDANT
STATE FARM LLOYD'S MOTION FOR CLARIFIC ATION AND
04/07/2015 "
RECONSIDERATION OF
04/07/2015 PLAINTIFFS' MOTIONS TO COMPEL AND STRI KE. MG "
FIAT-MOTION TO QUASH THE ORAL AND VIDE OTAPED
04/07/2015 "
DEPOSITION OF MR
04/07/2015 PENA (RECEIVED) (PF) "
*IMG* NOTICE OF INTENTION TO TAKE ORAL AND VIDEO
04/08/2015 "
DEPOSITION OF ALMA
04/08/2015 TORRES (PF) "
CASE CALLED. HONORABLE JUDGE JOSE LOPE Z
04/09/2015 "
PRESIDING. COURT REPORTER
CINDY LENZ. HEARING:MOTION TO ENFORCE/ MOTION TO
04/09/2015 "
QUASH/MOTIONS. ATTYS.
ANDREW TAYLOR AND GILBERTO HINOJOSA WE RE
04/09/2015 "
PRESENT FOR PLAINTIFFS.
ATTYS. FELIX ARAMBULA, TIFFANY DEBOLT, AND BRIAN
04/09/2015 "
CHANDLER WERE
PRESENT FOR DEFENDANTS. DEFENDANTS TO PRODUCE
04/09/2015 "
TRAINING MATERIALS FOR
100 ADJUSTERS FOR AMARILLO AND DALLAS COUNTY
04/09/2015 "
AND ALL FOR WEBB COUNTY.
04/09/2015 *IMG* MOTION FOR TRIAL CONTINUANCE (PF ) "
ORDER FOR CONTINUANCE OF TRIAL (RECEIV ED) SENT
04/09/2015 "
TO COURT COORDINATOR
04/09/2015 (PF) "
*IMG* SUBPOENA RETURN SHOWING SERVICE AS TO
04/10/2015 "
ALMA TORRES. DOS 4/10/15.
04/10/2015 MG "
04/10/2015 Court date/time: 4/09/2015 9:00 H earing Type: 118 MTN/QUASH "
04/10/2015 Status changed from Open to Held "
04/10/2015 Court date/time: 4/09/2015 9:00 H earing Type: 37 Motions "
04/10/2015 Status changed from Open to Held "
04/10/2015 Court date/time: 4/09/2015 9:00 H earing Type: 20 Mtn Enforc "
04/10/2015 Status changed from Open to Held "
*IMG* PLAINTIFF'S MOTION TO QUASH THE ORAL AND
04/10/2015 "
VIDEOTAPED DEPOSITION
04/10/2015 OF MR. PENA. ATTACHED WITH ORDER. MG "
*IMG* RULE 11 AGREEMENT (RESCHEDULE HE ARING
04/13/2015 "
FROM APRIL 28, 2015)
04/13/2015 (PF) "
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*IMG* PLAINTIFF'S MOTION TO QUASH THE ORAL AND
04/13/2015 "
VIDEOTAPED DEPOSITION
OF ALMA TORRES AND MOTION FOR PROTECTI VE ORDER
04/13/2015 "
(PF)
ORDER GRANTING MOTION TO QUASH THE ORA L AND
04/13/2015 "
VIDEOTAPED
DEPOSITION OF ALMA TORRES AND MTOION F OR
04/13/2015 "
PROTECTIVE ORDER (RECEIVED)
04/13/2015 (PF) "
04/15/2015 Court date/time: 4/28/2015 9:00 H earing Type: 111 Mot/Strike "
04/15/2015 Status changed from Open to Canc e "
04/15/2015 Court date/time: 4/28/2015 9:00 H earing Type: 157 MotExclu "
04/15/2015 Status changed from Open to Canc e "
PRE-TRIAL GUIDELINE ORDER. RECEIVED/SE NT TO COURT
04/16/2015 "
COORDINATOR. MG
04/24/2015 Court date/time: 4/28/2015 9:00 H earing Type: 2 Pre-Trial "
04/24/2015 Status changed from Open to Canc e "
04/24/2015 Court date/time: 5/18/2015 8:00 H earing Type: 4 Jury Trial "
04/24/2015 Status changed from Open to Canc e "
04/24/2015 Court date/time: 12/01/2015 13:30 H earing Type: 2 Pre-Trial "
04/24/2015 Assignment of court date/time. "
04/24/2015 Status entered as Open "
04/24/2015 Court date/time: 12/14/2015 8:00 H earing Type: 4 Jury Trial "
04/24/2015 Assignment of court date/time. "
04/24/2015 Status entered as Open "
PTGO SIGNED BYJUDGE JOE LOPEZ AND COPI ES SENT TO
04/24/2015 "
COUNSEL VIA FAX
04/24/2015 FSR "
*IMG* PRE-TRIAL GUIDELINE ORDER. PRE-T RIAL SET FOR
04/27/2015 "
12/1/15 AT 1:30PM.
AND TRIAL SET FOR 12/14/15 AT 8AM. SIG NED 4/23/15 BY
04/27/2015 "
JUDGE LOPEZ.
04/27/2015 FAXED TO J. STEVE MOSTYN AND TIFFANY D EBOLT. MG "
05/06/2015 *IMG* NOTICE OF APPEARANCE "
AGREED ORDER. RECEIVED/SENT TO COURT C
05/14/2015 "
OORDINATOR. MG
*IMG* LETTER DATED MAY 15, 2015 FROM T IFFANY
05/15/2015 "
DEBOLT IN RE TO ORDERS.
05/15/2015 MG "
*IMG* REPORTER'S CERTIFICATION OF ORAL DEPOSITION
05/18/2015 "
OF ALMA JUVENTINA
05/18/2015 ON APRIL 7, 2015. "
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*IMG* UNOPPOSED MOTION OF ATTORNEYS HU SEMAN &
05/18/2015 "
STEWART P.L.L.C. TO
WITHDRAW AND FOR SUBSTITUTION OF COUNS EL FOR
05/18/2015 "
DEFENDANTS (W/ ORDER
05/18/2015 ATTACHED) SENT TO COURT COORDINATOR. < CMG> "
ORDER GRANTING MOTION FOR SUBSTITUTION OF
05/27/2015 "
COUNSEL FOR DEFENDANTS
SIGNED BY JUDGE JOE LOPEZ AND COPIES S ENT TO
05/27/2015 "
COUNSEL VIA FAX FSR
*IMG* UNOPPOSED ORDER GRANTING MOTION OF
05/29/2015 "
ATTORNEYS HUSEMAN & STEWART
P.L.L.C. TO WITHDRAW AND FOR SUBSTITUT ION OF
05/29/2015 "
COUNSEL FOR DEFENDANTS.
SIGNED 5/22/15 BY JUDGE LOPEZ. FAXED T O J. STEVE
05/29/2015 "
MOSTYN, VAN HUSEMAN,
05/29/2015 AND SOFIA A. RAMON. MG "
*IMG* PLAINTIFFS' MOTION TO ENFORCE CO URT ORDER
06/11/2015 "
REGARDING PLAINTIFFS'
MOTION COMPEL DISOVERY (WITH ORDER ATT ACHED)
06/11/2015 "
SENT TO COURT
06/11/2015 COORDINATOR. "
06/15/2015 Court date/time: 7/02/2015 9:00 H earing Type: 20 Mtn Enforc "
06/15/2015 Assignment of court date/time. "
06/15/2015 Status entered as Open "
*IMG* NOTICE OF COURT SETTING (PLAINTI FFS' MOTION
06/16/2015 "
TO ENFORCE COURT
ORDER REGARDING PLAINTIFF'S MOTION TO COMPEL
06/16/2015 "
DISCOVERY- SET FOR JULY
06/16/2015 2, 2015 AT 9:00 A.M. "
06/16/2015 "
COPY OF NOTICE EMAILED TO ATTORNEYS J. STEVE
06/16/2015 "
MOSTYN/ANDREW TAYLOR AND
VAN HUSEMAN/TIFFANY L. DEBOLT BY COURT
06/16/2015 "
COORDINATOR.
06/16/2015 *IMG* PLAINTIFF'S FIRST AMENDED PETITI ON. CMG "
06/17/2015 *IMG* (2) CITATIONS ISSUED AS TO RAY P ADILLA. CMG "
06/17/2015 "
**WAITING ON COPIES AND SELF ADDRESSED STAMPED
06/17/2015 "
ENVELOPE.**
06/17/2015 "
06/17/2015 CITATIONS RELEASE IN FED EX ENVELOPE 6 /19/15 "
*IMG* DEFENDANT STATE FARM LLOYDS' OPP OSITION TO
06/19/2015 "
MOTION TO ENFORCE,
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MOTION FOR ENTRY, AND MOTION TO STAY P ENDING
06/19/2015 "
MANDAMUS
06/19/2015 Court date/time: 7/02/2015 9:00 H earing Type: 164 MotStayPro "
06/19/2015 Assignment of court date/time. "
06/19/2015 Status entered as Open "
06/19/2015 Court date/time: 7/16/2015 9:00 H earing Type: 20 Mtn Enforc "
06/19/2015 Assignment of court date/time. "
06/19/2015 Status entered as Open "
*IMG* ORDER SETTING HEARING ON DEFENDA NT'S STATE
06/22/2015 "
FARM LLOYD'S MOTION
FOR ENTRY AND MOTION TO STAY PENDING M ANDAMUS
06/22/2015 "
SIGNED. HEARING SET FOR
7/2/15 AT 9:00 A.M. COPY FAXED TO ATTO RNEY OF RECORD
06/22/2015 "
BY COURT
06/22/2015 COORDINATOR. JER "
*IMG* FIAT (MOTIONS SET FOR 7/16/15 AT 9:00 A.M.) COPY
06/22/2015 "
FAXED TO
06/22/2015 ATTORNEY OF RECORD BY COURT COORDINATO R. JER "
07/01/2015 *IMG* RULE 11 AGREEMENT "
07/01/2015 *IMG* RULE 11 AGREEMENT "
07/02/2015 Court date/time: 7/02/2015 9:00 H earing Type: 20 Mtn Enforc "
07/02/2015 Status changed from Open to Canc e "
07/02/2015 Court date/time: 7/02/2015 9:00 H earing Type: 164 MotStayPro "
07/02/2015 Status changed from Open to Canc e "
CASE CALLED. HONORABLE JUDGE JOSE LOPE Z
07/02/2015 "
PRESIDING. COURT REPORTER
CINDY LENZ. HEARING:MOTION TO ENFORCE. NO
07/02/2015 "
ATTORNEYS PRESENT. CASE
07/02/2015 RESET TO 7/16/15 AT 9AM FOR MOTION TO ENFORCE. MG "
*IMG* LETTER FROM ATLAS, HALL & RODRIG UEZ LLP
07/02/2015 "
DATED 7/2/15
07/02/2015 IN RE: HEARING FOR JULY 16, 2015 "
*IMG* PROTECTIVE ORDER RCVD & SENT TO COURT
07/02/2015 "
COORDINATOR JLA
*IMG* REPORTER'S CERTIFICATION OF ORAL DEPOSITION
07/02/2015 "
OF MARIA DEL CARMEN
07/02/2015 VIERA-PENA MAY 12, 2015 J LA "
07/06/2015 AGREED PROTECTIVE ORDER RECEIVED "
07/07/2015 Court date/time: 7/16/2015 9:00 H earing Type: 164 MotStayPro "
07/07/2015 Assignment of court date/time. "
07/07/2015 Status entered as Open "
07/07/2015 Court date/time: 7/16/2015 9:00 H earing Type: 111 Mot/Strike "
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07/07/2015 Assignment of court date/time. "
07/07/2015 Status entered as Open "
*IMG* CITATION RETURN SHOWING SERVICE AS TO RAY
07/08/2015 "
PADILLA. DOS 6/26/15.
07/08/2015 MG "
*IMG* DEFENDANT RAY PADILLA'S ORIGINAL ANSWER TO
07/10/2015 "
PLAINTIFF'S FIRST
07/10/2015 AMENDED PETITION. MG "
07/13/2015 PROTECTIVE ORDER SIGNED "
07/14/2015 *IMG* PROTECTIVE ORDER- SIGNED ON 7/13 /15 "
07/14/2015 "
COPY FAXED TO ATTORNEYS J. STEVE MOSTY N AND
07/14/2015 "
SOFIA RAMON BY COURT
07/14/2015 COORDINATOR. "
07/15/2015 Court date/time: 7/16/2015 9:00 H earing Type: 111 Mot/Strike "
07/15/2015 Status changed from Open to Canc e "
*IMG* PLAINTIFF'S REPLY IN SUPPORT OF HER MOTION TO
07/15/2015 "
ENFORCE COURT
ORDER REGARDING HER MOTION TO COMPEL D
07/15/2015 "
ISCOVERY AND RESPONSE TO
DEFENDANT STATE FARM LLOYDS' MOTION FO R ENTRY
07/15/2015 "
AND MOTION TO STAY.
07/15/2015 ATTACHED WITH ORDER. MG "
CASE CALLED. HONORABLE JUDGE JOSE LOPE Z
07/16/2015 "
PRESIDING. COURT REPORTER
CINDY LENZ. HEARING:MOTION TO ENFORCE/ MOTION TO
07/16/2015 "
STAY. ATTY. ANDREW
TAYLOR WAS PRESENT FOR PLAINTIFF. ATTY S. SOFIA
07/16/2015 "
RAMON AND ELIZABETH
CANTU WERE PRESENT FOR DEFENDANTS. DEF ENDANTS
07/16/2015 "
STATE FARM'S MOTION FOR
07/16/2015 ENTRY & MOTION TO STAY 30 DAYS GRANTED . MG "
07/16/2015 agreed order signed "
07/17/2015 Court date/time: 7/16/2015 9:00 H earing Type: 20 Mtn Enforc "
07/17/2015 Status changed from Open to Held "
07/17/2015 Court date/time: 7/16/2015 9:00 H earing Type: 164 MotStayPro "
07/17/2015 Status changed from Open to Held "
*IMG* AGREED ORDER. SIGNED 7/16/15 BY JUDGE LOPEZ.
07/17/2015 "
EMAILED TO J.
07/17/2015 STEVE MOSTYN AND VAN HUSEMAN. MG "
*IMG* LETTER DATED JULY 20, 2015 FROM FOURTH COURT
07/21/2015 "
OF APPEALS IN RE
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TO RELATOR'S PETITION FOR WRIT OF MAND AMUS HAS
07/21/2015 "
BEEN FILED. MG
*IMG* LETTER DATED JULY 20, 2015 FROM FOURTH COURT
07/21/2015 "
OF APPEALS IN RE
07/21/2015 TO RELATOR'S MANDAMUS RECORD HAS BEEN FILED. MG "
*IMG* LETTER DATED JULY 20, 2015 FROM FOURTH COURT
07/21/2015 "
OF APPEALS IN RE
TO RELATOR'S OPPOSED MOTION FOR TEMPOR ARY
07/21/2015 "
RELIEF STAYING ORDER
07/21/2015 COMPELLING DISCOVERY HAS BEEN FILED. M G "
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Agreements
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Civil Docket; Case 2014CVF001162 D1; Accounts, Contracts, Notes
RODRIGUEZ, RAUL vs FARIAS, FELIPE et al
Filed 06/13/2014 - Disposition:
49th District Court, District Clerk, Webb County, Texas
Court Settings:
12/01/2015 13:30 PM
12/14/2015 8:00 AM
Date Description/Comments Reference Typ Amount
ORDER FOR TRIAL CONTINUANCE (RECEIVED) SENT TO
04/09/2014 TXT
COURT COORDINATOR
04/09/2014 (PF) "
06/13/2014 Case Status entered as ACTV. "
06/13/2014 Case Status ACTV: Active "
06/13/2014 For STATE FARM LLOYDS "
06/13/2014 *IMG* CONTRACT "
06/19/2014 Court date/time: 9/04/2014 13:30 H earing Type: 17 Clndr Call "
06/19/2014 Assignment of court date/time. "
06/19/2014 Status entered as Open "
CALENDAR CALL FAXED TO ATTORNEY AND AT TACHED
06/19/2014 "
TO CITATION. MR
*IMG* (2) CITATIONS ISSUED TO STATE FA RM LLOYDS BY
06/20/2014 "
SERVING ATTORNEY
FOR SERVICE RENDI BLACK, (2) CITATIONS ISSUED TO
06/20/2014 "
FELIPE FARIAS.
PLACED IN FILE, PENDING COPIES OF PETI TION AND FED
06/20/2014 "
EX ENVELOPE TO
06/20/2014 MAIL BACK TO ATTORNEY. MR "
*IMG* LETTER FROM ATTY. MOSTYN LAW FIR M
06/23/2014 "
ATTACHED COPIES OF PETITION
06/23/2014 AND FED EX ENVELOPE "
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06/23/2014 CITATION MAILED TO ATTY. J. STEVE MOST YN (PF) "
*IMG* CITATION RETURN SHOWING SERVICE AS TO STATE
07/07/2014 "
FARM LLOYDS BY
SERVING ITS ATTORNEY FOR SERVICE RENDI BLACK. DOS
07/07/2014 "
6/30/14. MG
*IMG* CITATION RETURN SHOWING SERVICE AS TO FELIPE
07/07/2014 "
FARIAS. DOS
07/07/2014 6/30/14. MG "
*IMG* DEFENDANT STATE FARM LLOYD'S SPE CIAL
07/14/2014 "
EXCEPTIONS AND ORIGINAL
07/14/2014 ANSWER. (ATTY. VAN HUSEMAN). MG "
*IMG* DEFENDANT, FELIPE FARIAS', ORIGI NAL ANSWER.
07/29/2014 "
(ATTY. VAN
07/29/2014 HUSEMAN). MG "
*IMG* LETTER DATED AUGUST 1, 2014 IN R E TO COPIES.
08/01/2014 "
MG
*IMG* DEFENDANTS, STATE FARM LLOYDS AN D FELIPE
08/07/2014 "
FARIAS', PLEA IN
08/07/2014 ABATEMENT. MG "
*IMG* DEFENDANT'S DECLARATION INVOKING RULE 167
08/25/2014 "
OF THE TEXAS RULE OF
CIVIL PROCEDURE AND CHAPTER 42 OF THE CIVIL
08/25/2014 "
PRACTICE AND REMEDIES
08/25/2014 CODE (PF) "
JURY PRE-TRIAL GUIDELINE ORDER (RECEIV ED) SENT TO
08/26/2014 "
COURT
08/26/2014 COORDINATOR (PF) "
08/26/2014 Court date/time: 9/04/2014 13:30 H earing Type: 17 Clndr Call "
08/26/2014 Status changed from Open to Canc e "
08/26/2014 GUIDELINE ORDER RECEIVED "
09/08/2014 Court date/time: 6/02/2015 13:30 H earing Type: 2 Pre-Trial "
09/08/2014 Assignment of court date/time. "
09/08/2014 Status entered as Open "
09/08/2014 Court date/time: 6/22/2015 8:00 H earing Type: 4 Jury Trial "
09/08/2014 Assignment of court date/time. "
09/08/2014 Status entered as Open "
PTGO SIGNED BY JUDGE JOE LOPEZ AND COP IES SENT TO
09/09/2014 "
COUNSEL VIA FAX
09/09/2014 FSR "
*IMG* PRE-TRIAL GUIDELINE ORDER. PRE-T RIAL SET FOR
09/09/2014 "
6/2/15 AT 1:30PM
AND TRIAL SET FOR 6/22/15 AT 8AM. SIGN ED 8/28/15 BY
09/09/2014 "
JUDGE LOPEZ.
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09/09/2014 FAXED TO J. STEVE MOSTYN AND TIFFANY D E BOIT. MG "
10/08/2014 ORDER. RECEIVED. MG "
*IMG* DEFENDANTS, STATE FARM LLOYDS AN D FELIPE
10/08/2014 "
FARIAS', MOTION TO
10/08/2014 CONFIRM ABATEMENT. MG "
ORDER SETTING HEARING. RECEIVED/SENT T O COURT
10/08/2014 "
COORDINATOR. MG
ORDER SETTING HEARING. RECEIVED/SENT T O COURT
10/28/2014 "
COORDINATOR. MG
*IMG* STATE FARM'S MOTION FOR ENTRY OF PROTECTIVE
10/28/2014 "
ORDER. MG
ORDER SETTING HEARING ON STATE FARM'S MOTION FOR
10/29/2014 "
PROTECTIVE ORDER
SENT BACK TO DISTRICT CLERK'S OFFICE - A CERTIFICATE
10/29/2014 "
OF CONFERENCE
NEEDS TO BE SUBMITTED IN ORDER TO SET THE MOTION
10/29/2014 "
FOR HEARING
*IMG* PLAINTIFFS' MOTION TO COMPEL DEF ENDANTS TO
01/22/2015 "
PRODUCE SUPPLEMENTAL
DISCOVERY RESPONSE AND DOCUMENTS AND M OTION
01/22/2015 "
TO STRIKE/OVERRULE
01/22/2015 OBJECTIONS (NO FIAT ATTACHED) (PF) "
*IMG* PLAINTIFFS' MOTION FOR ENTRY OF PROTECTIVE
01/22/2015 "
ORDER (PF)
01/22/2015 (NO FIAT ATTACHED) "
ORDER GRANTING PLAINTIFFS' MOTION TO C OMPEL
01/22/2015 "
DEFENDANTS TO
PRODUCE SUPPLEMENTAL DISCOVERY RESPONS E AND
01/22/2015 "
DOCUMENTS AND MOTION
01/22/2015 TO STRIKE/OVERRULE OBJECTIONS (RECEIVE D) (PF) "
ORDER GRANTING PLAINTIFFS' MOTION FOR ENTRY OF
01/22/2015 "
PROTECTIVE
01/22/2015 (RECEIVED) (PF) "
*IMG* DEFENDANTS, STATE FARM LLOYDS AN D FELIPE
01/27/2015 "
FARIAS', PLEA IN
01/27/2015 ABATEMENT. MG "
ORDER SETTING HEARING. RECEIVED/SENT T O COURT
02/02/2015 "
COORDINATOR. MG
*IMG* PLAINTIFF'S RESPONSE TO DEFENDAN TS' PLEA IN
02/06/2015 "
ABATEMENT. MG
ORDER DENYING DEFENDANTS' PLEA IN ABAT EMENT.
02/06/2015 "
RECEIVED. MG
02/10/2015 Court date/time: 3/03/2015 9:00 H earing Type: 91 PLE/ABATE "
02/10/2015 Assignment of court date/time. "
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02/10/2015 Status entered as Open "
02/10/2015 Court date/time: 3/03/2015 9:00 H earing Type: 37 Motions "
02/10/2015 Assignment of court date/time. "
02/10/2015 Status entered as Open "
ORDER SETTING HEARING ON MOTION TO COM PEL AND
02/11/2015 "
ENTRY OF PROTECTIVE
02/11/2015 ORDER SENT TO COUNSEL VIA FAX FSR "
ORDER SETTING HEARING ON PLEA IN ABATE MENT SENT
02/11/2015 "
TO COUNSEL VIA FAX
02/11/2015 FSR "
*IMG* ORDER SETTING HEARING PLAINTIFFS ' MOTION
02/12/2015 "
FOR ENTRY OF
PROTECTIVE ORDER AND PLAINTIFFS' MOTIO N TO
02/12/2015 "
COMPEL DEFENDANTS' TO
PRODUCE SUPPLEMENTAL DISCOVERY RESPONS ES AND
02/12/2015 "
DOCUMENTS AND MOTION TO
STRIKE/OVERRULE OBJECTIONS SET FOR MAR CH 3, 2015
02/12/2015 "
AT 9:00 A.M. FAXED
TO VAN HUSEMAN AND J STEVE MOSTYN BY C OURT
02/12/2015 "
COORDINATOR (PF)
*IMG* ORDER SETTING HEARING DEFTS. STA TE FARM
02/12/2015 "
LLOYDS AND FELIPE
ARIAS PLEA IN ABATEMENT SET FOR MARCH 3, 2015 AT
02/12/2015 "
9:00 A.M. FAXED TO
STEVE MOSTYN AND TIFFANY DEBOLT BY COU RT
02/12/2015 "
COORDINATOR (PF)
02/19/2015 *IMG* RULE 11 AGREEMENT (PF) "
*IMG* DEFENDANT'S MOTION TO COMPEL PLA INTIFFS'
02/20/2015 "
DISCOVERY RESPONSES TO
STATE FARM LLOYDS FIRST SET OF INTERRO GATORIES
02/20/2015 "
AND REQUESTS FOR
02/20/2015 PRODUCTION. MG "
02/20/2015 FIAT. RECEIVED/SENT TO COURT COORDINAT OR. MG "
*IMG* DEFENDANTS' RESPONSE AND OBJECTI ONS TO
02/23/2015 "
PLAINTIFFS' MOTION FOR
PROTECTIVE ORDER AND MOTION FOR ENTRY OF STATE
02/23/2015 "
FARM'S PROPOSED
02/23/2015 PROTECTIVE ORDER. MG "
02/24/2015 Court date/time: 3/03/2015 9:00 H earing Type: 37 Motions "
02/24/2015 Status changed from Open to Canc e "
02/24/2015 Court date/time: 3/03/2015 9:00 H earing Type: 91 PLE/ABATE "
02/24/2015 Status changed from Open to Canc e "
02/24/2015 Court date/time: 3/05/2015 9:00 H earing Type: 37 Motions "
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02/24/2015 Assignment of court date/time. "
02/24/2015 Status entered as Open "
02/24/2015 Court date/time: 3/05/2015 9:00 H earing Type: 66 Mtn/Compel "
02/24/2015 Assignment of court date/time. "
02/24/2015 Status entered as Open "
02/24/2015 Court date/time: 3/05/2015 9:00 H earing Type: 91 PLE/ABATE "
02/24/2015 Assignment of court date/time. "
02/24/2015 Status entered as Open "
FIAT SETTING MOTION TO COMPEL HEARING SENT TO
02/25/2015 "
COUNSEL VIA FAX
02/25/2015 FSR "
*IMG* DEFENDANTS' RESPONSE TO PLAINTIF FS' MOTION
02/26/2015 "
TO COMPEL DEFENDANTS
TO PRODUCE SUPPLEMENTAL DISCOVERY RESP ONSE AND
02/26/2015 "
DOCUMENTS AND MOTION
02/26/2015 TO STRIKE/OVERRULE OBJECTIONS (PF) "
*IMG* FIAT. DEFENDANT'S MOTION TO COMP EL
02/26/2015 "
PLAINTIFF'S DISCOVERY
RESPONSES TO STATE FARM LLOYDS FIRST O F
02/26/2015 "
INTERROGATORIES AND REQUESTS
FOR PRODUCTION FILED BY DEFENDANT, STA TE FARM
02/26/2015 "
LLOYDS SET FOR 3/5/15
AT 9AM. FAXED TO J. STEVE MOSTYN, TIFF ANY DEBOLT,
02/26/2015 "
AND BRUCE J.
02/26/2015 WERSTAK III. MG "
*IMG* DEFENDANTS' REPLY BRIEF IN SUPPO RT OF THEIR
02/27/2015 "
PLEA IN ABATEMENT.
02/27/2015 MG "
ORDER DENYING DEFENDANT'S MOTION TO CO MPEL
03/04/2015 "
PLAINTIFFS' DISCOVERY
RESPONSES TO STATE FARM LLOYDS' FIRST SET OF
03/04/2015 "
INTERROGATORIES AND
03/04/2015 REQUESTS FOR PRODUCTION. RECEIVED. MG "
*IMG* PLAINTIFF'S RESPONSE TO DEFENDAN T'S MOTION
03/04/2015 "
TO COMPEL
PLAINTIFFS' DISCOVERY RESPONSES TO STA TE FARM
03/04/2015 "
LLOYDS' FIRST SET OF
INTERROGATORIES AND REQUESTS FOR PRODU CTION.
03/04/2015 "
MG
*IMG* VERIFIED MOTION TO ADMIT COUNSEL PRO HAC
03/04/2015 "
VICE. MG
ORDER GRANTING APPLICATION FOR ADMISSI ON OF
03/04/2015 "
COUNSEL PRO HAC VICE. MG
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CASE CALLED. HONORABLE JUDGE JOSE LOPE Z
03/05/2015 "
PRESIDING. COURT REPORTER
CINDY LENZ. HEARING:MOTION TO STRIKE/M OTION TO
03/05/2015 "
COMPEL/PLEA IN
ABATEMENT. ATTYS. ANDREW TAYLOR AND GI LBERTO
03/05/2015 "
HINOJOSA WERE PRESENT
FOR PLAINTIFFS. ATTYS. BRUCE WERSTAK, VAN
03/05/2015 "
HUSEMAN, TIFFANY DEBOLT,
JONATHAN REDGRANE, AND FELIX ARAMBULA WERE
03/05/2015 "
PRESENT FOR DEFENDANTS.
PLAINTIFF'S MOTION TO COMPEL, REQUESTS FOR
03/05/2015 "
PRODUCTION 2 AND
6:OBJECTIONS OVERRULED. COUNSEL FOR PL AINTIFFS TO
03/05/2015 "
DESTROY ALL
DISCOVERY EXCHANGED AFTER ONE YEAR TH E CASE IS
03/05/2015 "
RESOLVED OR RETURN IT
TO DEFENDANTS COUNSEL. ORDER TO BE SUB MITTED.
03/05/2015 "
MG
03/06/2015 Court date/time: 3/05/2015 9:00 H earing Type: 91 PLE/ABATE "
03/06/2015 Status changed from Open to Held "
03/06/2015 Court date/time: 3/05/2015 9:00 H earing Type: 66 Mtn/Compel "
03/06/2015 Status changed from Open to Held "
03/06/2015 Court date/time: 3/05/2015 9:00 H earing Type: 37 Motions "
03/06/2015 Status changed from Open to Held "
03/09/2015 *IMG* DEFENDANTS' DESIGNATION OF EXPER TS. MG "
*IMG* ORDER GRANTING APPLICATION FOR A DMISSION
03/18/2015 "
OF COUNSEL PRO HAC
03/18/2015 VICE, SIGNED "
COPY OF ORDER GRANTING APPLICATION FOR ADMISSION
03/18/2015 "
OF COUNSEL PRO HAC
VICE FAXED TO J. STEVE MOSTYN, TIFFANY DEBOLT,
03/18/2015 "
BRUCE J. WERSTAK, III
AND EMAILED TO JONATHAN M. REDGRAVE BY COURT
03/18/2015 "
COORDINATOR (PF)
*IMG* MOTION TO QUASH DEPOSITIONS OF S TATE FARM
03/24/2015 "
LLOYDS CORPORATE
REPRESENTATIVE AND OBJECTIONS TO DEPOS ITION
03/24/2015 "
TOPIC, NO ORDER ATTACHED
03/24/2015 (PF) "
03/27/2015 FIAT. RECEIVED/SENT TO COURT COORDINAT OR. MG "
*IMG* DEFENDANT STATE FARM LLOYDS' OPP OSITION TO
03/27/2015 "
PLAINTIFF'S MOTION
TO ENFORCE COURT ORDER AND MOTION FOR
03/27/2015 "
CLARIFICATION AND
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RECONSIDERATION OF PLAINTIFFS' MOTIONS TO COMPEL
03/27/2015 "
AND STRIKE. MG
04/02/2015 Court date/time: 4/09/2015 9:00 H earing Type: 20 Mtn Enforc "
04/02/2015 Assignment of court date/time. "
04/02/2015 Status entered as Open "
*IMG* FIAT. OPPOSITION TO PLAINTIFF'S MOTION TO
04/02/2015 "
ENFORCE COURT ORDER
AND MOTION FOR CLARIFICATION AND RECON
04/02/2015 "
SIDERATION OF PLAINTIFFS'
MOTION TO COMPEL AND STRIKE FILED BY D EFENDANT
04/02/2015 "
STATE FARM LLOYDS SET
FOR 4/9/15 AT 9AM. FAXED TO J. STEVE M OSTYN, TIFFANY
04/02/2015 "
DEBOLT, AND
04/02/2015 BRUCE J. WERSTAK III. MG "
*IMG* PLAINTIFFS' REPLY TO DEFENDANT S TATE FARM
04/07/2015 "
LLOYDS'S OPPOSITION
TO PLAINTIFF'S MOTION TO ENFORCE COURT ORDER AND
04/07/2015 "
RESPONSE TO
DEFENDANT STATE FARM LLOYDS'S MOTION F OR
04/07/2015 "
CLARIFICATION AND
RECONSIDERATION OF PLAINTIFFS' MOTIONS TO COMPEL
04/07/2015 "
AND STRIKE. MG
CASE CALLED. HONORABLE JUDGE JOSE LOPE Z
04/09/2015 "
PRESIDING. COURT REPORTER
CINDY LENZ. HEARING:MOTION TO ENFORCE. ATTYS.
04/09/2015 "
ANDREW TAYLOR AND
GILBERTO HINOJOSA WERE PRESENT FOR PLA INTIFFS.
04/09/2015 "
ATTYS. FELIX ARAMBULA,
TIFFANY DEBOLT, AND BRIAN CHANDLER WER E PRESENT
04/09/2015 "
FOR DEFENDANTS.
DEFENDANTS TO PRODUCE TRAINING MATERIA LS FOR
04/09/2015 "
100 ADJUSTERS FOR
AMARILLO AND DALLAS COUNTY AND ALL FOR WEBB
04/09/2015 "
COUNTY.
ORDER FOR TRIAL CONTINUANCE (RECEIVED) SENT TO
04/09/2015 "
COURT COORDINATOR
04/09/2015 (PF) "
04/09/2015 *IMG* MOTION FOR TRIAL CONTINUANCE (PF ) "
04/10/2015 Court date/time: 4/09/2015 9:00 H earing Type: 20 Mtn Enforc "
04/10/2015 Status changed from Open to Held "
*IMG* RULE 11 AGREEMENT (CONTINUANCE O F TRIAL)
04/13/2015 "
(PF)
PRE-TRIAL GUIDELINE ORDER. RECEIVED/SE NT TO COURT
04/16/2015 "
COORDINATOR. MG
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04/24/2015 Court date/time: 6/22/2015 8:00 H earing Type: 4 Jury Trial "
04/24/2015 Status changed from Open to Canc e "
04/24/2015 Court date/time: 6/02/2015 13:30 H earing Type: 2 Pre-Trial "
04/24/2015 Status changed from Open to Canc e "
04/24/2015 Court date/time: 12/01/2015 13:30 H earing Type: 2 Pre-Trial "
04/24/2015 Assignment of court date/time. "
04/24/2015 Status entered as Open "
04/24/2015 Court date/time: 12/14/2015 8:00 H earing Type: 4 Jury Trial "
04/24/2015 Assignment of court date/time. "
04/24/2015 Status entered as Open "
*IMG* PRE-TRIAL GUIDELINE ORDER. PRE-T RIAL SET FOR
04/27/2015 "
12/1/15 AT 1:30PM
AND TRIAL SET FOR 12/14/15 AT 8AM. SIG NED 4/23/15 BY
04/27/2015 "
JUDGE LOPEZ.
04/27/2015 FAXED TO J. STEVE MOSTYN AND TIFFANY D EBOLT. MG "
05/06/2015 *IMG* NOTICE OF APPEARANCE "
AGREED ORDER. RECEIVED/SENT TO COURT C
05/14/2015 "
OORDINATOR. MG
*IMG* LETTER DATED MAY 15, 2015 FROM T IFFANY
05/15/2015 "
DEBOLT IN RE TO ORDERS.
05/15/2015 MG "
*IMG* UNOPPOSED MOTION OF ATTORNEYS HU SEMAN &
05/18/2015 "
STEWART P.L.L.C. TO
WITHDRAW AND FOR SUBSTITUTION OF COUNS EL FOR
05/18/2015 "
DEFENDANTS (W/ ORDER
05/18/2015 ATTACHED) SENT TO COURT COORDINATOR. < CMG> "
ORDER GRANTING MOTION FOR SUBSTITUTION OF
05/27/2015 "
COUNSEL FOR DEFENDANTS
SIGNED BY JUDGE JOE LOPEZ AND COPIES S ENT TO
05/27/2015 "
COUNSEL VIA FAX FSR
*IMG* ORDER GRANTING UNOPPOSED MOTION OF
05/29/2015 "
ATTORNEYS HUSEMAN & STEWART
P.L.L.C. TO WITHDRAW AND FOR SUBSTITUT ION OF
05/29/2015 "
COUNSEL FOR DEFENDANTS.
SIGNED 5/22/15 BY JUDGE LOPEZ. FAXED T O J. STEVE
05/29/2015 "
MOSTYN, VAN HUSEMAN,
05/29/2015 AND SOFIA A. RAMON. MG "
*IMG* PLAINTIFFS' MOTION TO ENFORCE CO URT ORDER
06/11/2015 "
REGARDING PLAINTIFFS'
MOTION TO COMPEL DISCOVERY (WITH ORDER
06/11/2015 "
ATTACHED) SENT TO COURT
06/11/2015 COORDINATOR. "
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*IMG* PLAINTIFFS' SUPPLEMENTAL MOTION TO STRIKE
06/11/2015 "
AND/OR OVERRULE
DEFENDANT STATE FARM'S OBJECTIONS TO W RITTEN
06/11/2015 "
DISCOVERY AND MOTION TO
06/11/2015 COMPEL SUPPLEMENTAL DISCOVERY RESPONSE S "
06/16/2015 *IMG* PLAINTIFF'S FIRST AMENDED PETITI ON. CMG "
06/17/2015 *IMG* (2) CITATIONS ISSUED AS TO RAY P ADILLA. CMG "
06/17/2015 "
**WAITING ON COPIES FOR CITATIONS AND SELF
06/17/2015 "
ADDRESSED STAMPED
06/17/2015 ENVELOPE.** "
06/17/2015 "
06/17/2015 CITATIONS RELEASE IN FED EX ENVELOPE 6 /19/15 "
*IMG* DEFENDANT STATE FARM LLOYDS' OPP OSITION TO
06/19/2015 "
MOTION TO ENFORCE,
MOTION FOR ENTRY, AND MOTION TO STAY P ENDING
06/19/2015 "
MANDAMUS
*IMG* FIAT (MOTIONS SET FOR 7/16/15 AT 9:00 A.M.) COPY
06/22/2015 "
FAXED TO
06/22/2015 ATTORNEY OF RECORD BY COURT COORDINATO R. JER "
*IMG* ORDER SETTING HEARING ON DEFENDA NT STATE
06/22/2015 "
FARM LLOYD'S MOTION
FOR ENTRY AND MOTION TO STAY PENDING M ANDAMUS
06/22/2015 "
SET FOR 7/2/15 AT 9:00
A.M. COPY FAXED TO ATTORNEY OF RECORD BY COURT
06/22/2015 "
COORDINATOR. JER
07/01/2015 *IMG* RULE 11 AGREEMENT "
07/01/2015 *IMG* RULE 11 AGREEMENT "
*IMG* LETTER FROM ATLAS, HALL & RODRIG UEZ DATED
07/02/2015 "
7/2/15
07/02/2015 IN RE: HEARING FOR JULY 16, 2015 "
*IMG* PROTECTIVE ORDER RCVD & SENT TO COURT
07/02/2015 "
COORDINATOR JLA
07/06/2015 AGREED PROTECTIVE ORDER RECEIVED "
*IMG* CITATION RETURN SHOWING SERVICE AS TO RAY
07/08/2015 "
PADILLA. DOS 6/29/15.
07/08/2015 MG "
*IMG* STATE FARM'S OPPOSITION TO PLAIN TIFFS'
07/08/2015 "
SUPPLEMENTAL MOTION TO
STRIKE AND/OR OVERRULE DEFENDANT STATE FARMS'
07/08/2015 "
OBJECTIONS TO WRITTEN
DISCOVERY AND MOTION TO COMPEL SUPPLEM ENTAL
07/08/2015 "
DISCOVERY RESPONSES. MG
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*IMG* DEFENDANT RAY PADILLA'S ORIGINAL ANSWER TO
07/10/2015 "
PLAINTIFFS' FIRST
07/10/2015 AMENDED PETITION. ATTY. CHARLES W. DOW NING. MG "
07/13/2015 PROTECTIVE ORDER SIGNED "
07/14/2015 *IMG* PROTECTIVE ORDER- SIGNED ON 7/13 /15 "
07/14/2015 "
COPY FAXED TO ATTORNEYS J. STEVE MOSTY N AND
07/14/2015 "
SOFIA RAMON BY COURT
07/14/2015 COORDINATOR. "
07/15/2015 Court date/time: 7/16/2015 9:00 H earing Type: 111 Mot/Strike "
07/15/2015 Assignment of court date/time. "
07/15/2015 Status entered as Open "
*IMG* PLAINTIFFS' REPLY IN SUPPORT OF PLAINTIFFS'
07/15/2015 "
SUPPLEMENTAL MOTION
TO STRIKE AND/OR OVERRULE DEFENDANT ST ATE
07/15/2015 "
FARM'S OBJECTIONS TO
WRITTEN DISCOVERY AND MOTION TO COMPEL
07/15/2015 "
SUPPLEMENTAL DISCOVERY
07/15/2015 RESPONSES. MG "
CASE CALLED. HONORABLE JUDGE JOSE LOPE Z
07/16/2015 "
PRESIDING. COURT REPORTER
CINDY LENZ. HEARING:MOTION TO STRIKE. ATTY.
07/16/2015 "
ANDREW TAYLOR WAS PRESENT
FOR PLAINTIFF. ATTYS. SOFIA RAMON AND ELIZABETH
07/16/2015 "
CANTU WERE PRESENT
07/16/2015 FOR DEFENDANTS. PARTIES PASSING HEARIN G. MG "
07/17/2015 Court date/time: 7/16/2015 9:00 H earing Type: 111 Mot/Strike "
07/17/2015 Status changed from Open to Canc e "
*IMG* LETTER DATED JULY 20, 2015 FROM FOURTH COURT
07/21/2015 "
OF APPEALS IN RE
TO RELATOR'S PETITION FOR WRIT OF MAND AMUS HAS
07/21/2015 "
BEEN FILED. MG
*IMG* LETTER DATED JULY 20, 2015 FROM FOURTH COURT
07/21/2015 "
OF APPEALS IN RE
07/21/2015 TO RELATOR'S MANDAMUS RECORD HAS BEEN FILED. MG "
*IMG* LETTER DATED JULY 20, 2015 FROM FOURTH COURT
07/21/2015 "
OF APPEALS IN RE
TO RELATOR'S OPPOSED MOTION FOR TEMPOR ARY
07/21/2015 "
RELIEF STAYING ORDER
07/21/2015 COMPELLING DISCOVERY HAS BEEN FILED. M G "
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Agreements
11 of 11 7/24/2015 11:38 AM
TAB 1
OF THE RECORD
Filed
6/312014 4:02:29 PM
Esther Degollado
District Clerk
Webb District
2014CVF001048D1
CAUSE NO.4Ok21JF?YDIO4Rt)1
ALMA PENA, § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER, §
Defendants. § JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Alma Pena (“Plaintiff’), and files this Pkiint(fJ’s Original Petition,
complaining of State Farm Lloyds (“State Farm”) and Becky Lanier (“Lanier”) (to whom will be
collectively referred as “Defendants”), and for cause of action, Plaintiff would respectfully show
this Honorable Court the following:
DISCOVERY CONTROL PLAN
I. Plaintiff intends for discovery to be conducted under Level 3 of Rule 190 of the Texas
Rules of Civil Procedure. This case involves complex issues and will require extensive
discovery. Therefore, Plaintiff will ask the Court to order that discovery be conducted in
accordance with a discovery control plan tailored to the particular circumstances of this
suit.
PARTIES
2. Plaintiff Alma Pena is an individual residing in Webb County, Texas.
3. Defendant State Farm is an insurance company engaging in the business of insurance in
the State of Texas. This defendant may be served with personal process, by a process
server, by serving its Attorney for Service: Rendi Black, 17301 Preston Road, Dallas,
Texas 75252.
4. Defendant Becky Lanier is an individual residing in and domiciled in the State of Texas.
This defendant may be served with personal process by a process server at her place of
residence at 11755 Sunset Woods, Helotes, Texas 78023.
JURISDICTION
5. The Court has jurisdiction over this cause of action because the amount in controversy is
within the jurisdictional limits of the Court. Plaintiff is seeking monetary relief over
$200,000 but not more than $1,000,000. Plaintiff reserves the right to amend her petition
during and/or after the discovery process.
6. The Court has jurisdiction over Defendant State Farm because this defendant is a
domestic insurance company that engages in the business of insurance in the State of
Texas, and Plaintiff’s causes of action arise out of this defendant’s business activities in
the State of Texas.
7. The Court has jurisdiction over Defendant Lanier because this defendant engages in the
business of adjusting insurance claims in the State of Texas, and Plaintiff’s causes of
action arise Out of this defendant’s business activities in the State of Texas.
VENUE
8. Venue is proper in Webb County, Texas, because the insured property is situated in
Webb County, Texas. TEx. Civ. PRAc. & REM. CODE §15.032.
Page 2
FACTS
9. Plaintiff is the owner of a Texas Homeowners’ Insurance Policy (hereinafter referred to
as “the Policy”), which was issued by State Farm.
10. Plaintiff owns the insured property, which is specifically located at 1014 Reagan Dr.,
Laredo, Texas 78046, in Webb County (hereinafter referred to as “the Property”).
II. State Farm sold the Policy insuring the Property to Plaintiff
12. On or about June 7, 2013, a hail storm and/or windstorm struck Webb County, Texas,
causing severe damage to homes and businesses throughout the area, including Plaintiff’s
residence (“the Storm”). Specifically, Plaintiff’s roof sustained extensive damage during
the Storm. Water intrusion through the roof caused significant damage throughout the
entire home including, but not limited to, the home’s ceilings, walls, insulation, and
flooring. Plaintiff’s home also sustained substantial structural and exterior damage
during the Storm, as well as damage to the play set. After the Storm, Plaintiff filed a
claim with her insurance company, State Farm, for the damages to her home caused by
the Storm.
13. Plaintiff submitted a claim to State Farm against the Policy for Other Structure Damage,
Roof Damage, Structural Damage, Water Damage, and Wind Damage the Property
sustained as a result of the Storm.
14. Plaintiff asked that State Farm cover the cost of repairs to the Property pursuant to the
Policy, including but not limited to, repair and/or replacement oIthe roof and play set and
repair of the and interior water damages, pursuant to the Pol icy.
15. Defendant State Farm assigned Defendant Lanier as the individual adjuster on the claim.
The adjuster assigned to Plaintiff’s claim was improperly trained and failed to perform a
Page 3
thorough investigation of Plaintiff’s claim. On or about December 3, 2013, Lanier
conducted a substandard inspection of Plaintiff’s Property. For example, Lanier spent a
mere fifteen (15) minutes inspecting Plaintiff’s entire Property for Storm damages.
Furthermore, Lanier was uncooperative and quick to discount any damages that Plaintiff
pointed out. The inadequacy of Lanier’s inspection is further evidenced by her report,
which failed to include all of Plaintiff’s Storm damages noted upon inspection. For
example, Lanier failed to include many of the damages to the home’s roof and interior, as
well as the damages to Plaintiff’s play set. Moreover, the damages thai Lariier actually
included in her report were grossly undervalued, in part because she both underestimated
and undervalued the cost of materials required for necessary repairs, incorrectly applied
material sales tax, and failed to include contractor’s overhead and profit. Ultimately,
Lanier’s estimate did not allow adequate funds to cover the cost of repairs to all the
damages sustained. Lanier’s inadequate investigation was relied upon by State Farm in
this action and resulted in Plaintiff’s claim being undervalued and underpaid.
16. Together, Defendants State Farm and Lanier set about to deny and/or underpay on
properly covered damages. As a result of these Defendants’ unreasonable investigation
of the claim, including not providing full coverage for the damages sustained by Plaintiff
as well as under-scoping the damages during their investigation and thus denying
adequate and sufficient payment to Plaintiff to repair her home, Plaintiff’s claim was
improperly adjusted. The mishandling of Plaintiff’s claim has also caused a delay in her
ability to fully repair her home, which has resulted in additional damages. To this date,
Plaintiff has yet to receive the full payment to which she is entitled under the Policy.
Page 4
17. As detailed in the paragraphs below, State Farm wrongfully denied Plaintiff’s claim for
repairs of the Property, even though the Policy provided coverage for losses such as those
suffered by Plaintiff. Furthermore, State Farm underpaid some of Plaintiff’s claims by
not providing ftill coverage for the damages sustained by Plaintiff; as well as under
scoping the damages during its investigation.
18. To date, State Farm continues to delay in the payment for the damages to the Property.
As such, Plaintiff has not been paid in full for the damages to her home.
19. Defendant State Farm failed to perform its contractual duties to adequately compensate
Plaintiff under the terms of the Policy. Specifically, it refused to pay the full proceeds of
the Policy, although due demand was made for proceeds to be paid in an amount
sufficient to cover the damaged property, and all conditions precedent to recovery upon
the Policy had been carried out and accomplished by PlaintifE State Farm’s conduct
constitutes a breach of the insurance contract between State Farm and Plaintiff.
20. Defendants State Farm and Lanier misrepresented to Plaintiff that the damage to the
Property was not covered under the Policy, even though the damage was caused by a
covered occurrence. Defendants State Farm’s and Lanier’s conduct constitutes a
violation of the Texas Insurance Code, Unfair Settlement Practices. TEx. iNs. CODE
§54 I .060(a)( 1).
21. Defendants State Farm and Lanier failed to make an attempt to settle Plaintiff’s claim in a
fair manner, although they were aware of their liability to Plaintiff under the Policy.
Defendants State Farm’s and Lanier’s conduct constitutes a violation of the Texas
Insurance Code, Unfair Settlement Practices. TEX. INS. CoDE §541 .060(a)(2)(A).
Page 5
22. Defendants State Farm and Lanier failed to explain to Plaintiff the reasons for their offer
of an inadequate settlement. Specifically, Defendants State Farm and Lan ier failed to
offer PlaintifT adequate compensation, without any explanation why full payment was not
being made. Furthermore, Defendants State Farm and Lanier did not communicate that
any future settlements or payments would be forthcoming to pay for the entire losses
covered under the Policy, nor did they provide any explanation for the failure to
adequately settle Plaintiffs claim. Defendants State Farm’s and Lanier’s conduct is a
violation of’ the Texas Insurance Code, Unfair Settlement Practices. TEx. INS. Coi:n
§54 I .060(a)(3).
23. Defendants State Farm and Lanier failed to affirm or deny coverage of Plaintiffs claim
within a reasonable time. Specifically, Plaintiff did not receive timely indication of
acceptance or rejection, regarding the full and entire claim, in writing from Defendants
State Farm and Lanier. Defendants State Farm’s and Lanier’s conduct constitutes a
violation of the Texas Insurance Code, Unfair Settlement Practices. TEx. INS. CODE
§541 .060(a)(4).
24. Defendants State Farm and Lanier refused to fully compensate Plaintiff, under the terms
of the Policy, even though Defendants State Farm and Lanier failed to conduct a
reasonable investigation. Specifically, Defendants State Farm and Lanier performed an
outcome-oriented investigation olPlaintiff’s claim, which resulted in a biased, unfair, and
inequitable evaluation of Plaintiffs losses on the Property. Defendants State Farm’s and
Lanier’s conduct constitutes a violation of’ the Texas insurance Code, Unfair Settlement
Practices. TEx. INS. CODE §541.060(a)(7).
Page 6
25. Defndant State Farm failed to meet its obligations under the Texas Insurance Code
regarding timely acknowledging Plaintiff’s claim, beginning an investigation of
PlaIntiff’s claim, and requesting all information reasonably necessary to investigate
Plaintiff’s claim, within the statutorily mandated time of receiving notice of Plaintiff’s
claim. State Farm’s conduct constitutes a violation of the Texas Insurance Code, Prompt
Payment of Claims. TEx. INS. CODE §542.055.
26. Defendant State Farm failed to accept or deny Plaintiff’s full and entire claim within the
statutorily mandated time of receiving all necessary information. State Farm’s conduct
constitutes a violation of the Texas Insurance Code, Prompt Payment of Claims. TEx.
INs. CODE §542.056.
27. Defendant State Farm failed to meet its obligations under the Texas Insurance Code
regarding payment of claim without delay. Specifically, it has delayed full payment of
Plaintiff’s claim longer than allowed and, to date, Plaintiff has not received full payment
for her claim. State Farm’s conduct constitutes a violation of the Texas Insurance Code,
Prompt Payment of Claims. TEX. INS. CODE §542.058.
28. From and after the time Plaintiff’s claim was presented to Defendant State Farm, the
liability of State Farm to pay the full claim in accordance with the terms of the Policy
was reasonably clear. However, State Far-rn has refused to pay Plaintiff in full, despite
there being no basis whatsoever on which a reasonable insurance company would have
relied to deny the full payment. State Farm’s conduct constitutes a breach of the common
law duty of good faith and fair dealing.
Page 7
29. Defendants State Farm and Lanier knowingly or recklessly made false representations, as
described above, as to material facts and/or knowingly concealed all or part of material
information from Plaintiff
30. As a result of Defendants State Farm’s and Lanier’s wrongful acts and omissions,
Plaintiff was forced to retain the professional services of the attorney and law firm who
are representing her with respect to these causes of action.
31. Plaintiff’s experience is not an isolated case. The acts and omissions State Farm
committed in this case, or similar acts and omissions, occur with such frequency that they
constitute a general business practice of State Farm with regard to handling these types of
claims. State Farm’s entire process is unfairly designed to reach favorable outcomes for
the company at the expense of the policyholders.
CAUSES OF ACTION:
CAusEs OF ACTION AGAINST LANIER
NONCOMPLIANCE WITH TEXAS INSURANCE CODE:
UNFAIR SETTLEMENT PRACTICES
32. Defendant State Farm assigned Defendant Lanier to adjust the claim. Defendant Lanier
was improperly trained to handle claims of this nature and performed an unreasonable
investigation of Plaintiff’s damages. During the investigation, the adjuster failed to
properly assess Plaintiff’s Storm damages. The adjuster also omitted covered damages
from her reports, including many of Plaintiff’s roof and interior damages, as well as the
damage to Plaintiff’s play set. In addition, the damages that the adjuster did include in
the estimate were severely underestimated.
Page 8
33. Defendant Lanier’s conduct constitutes multiple violations of the Texas Insurance Code,
Unfair Selement Practices. TEX. INS. CODE §541.060(a). All violations under this
article are made actionable by TEx. INS. CODE §541.151.
34. Defendant Lanier is individually liable for her unfair arid deceptive acts, irrespective of
the fact she was acting on behalf of State Farm, because she is a “person” as defined by
TEx, INS. CoDE §541.002(2). The term “person” is defined as “any individual,
corporation, association, partnership, reciprocal or interinsurance exchange, Lloyds plan,
fraternal benefit society, or other legal entity engaged in the business of insurance,
including an agent, broker, adjuster or life and health insurance counselor.” TEX. INS.
Coou §54 1 .002(2) (emphasis added); see also Liberty Mutual Insurance Co. v. Garrison
Contractors, Inc., 966 S,W.2d 482, 484 (Tex. 1998) (holding an insurance company
employee to be a “person” for the purpose of bringing a cause of action against him or
her under the T’exas Insurance Code and subjecting him or her to individual liability).
35. Falsehoods and misrepresentations may be communicated by actions as well as by the
spoken word; therefore, deceptive conduct is equivalent to a verbal representation.
Defendant’s misrepresentations by means of deceptive conduct include, but are not
limited to: (I) failing to conduct a reasonable inspection and investigation of PlaintitT’s
damages; (2) stating that Plaintiff’s damages were less severe than they in fact were; (3)
using her own statements about the non-severity of the damage as a basis for denying
properly covered damages and/or underpaying damages; and (4) failing to provide an
adequate explanation for the inadequate compensation Plaintiff received. Defendant
Lanier’s unfair settlement practice, as described above, of misrepresenting to Plaintiff
material facts relating to the coverage at issue, constitutes an unfair method of
Page 9
competition and an unfair and deceptive act or practice in the business of insurance. TEX.
INs. CODE §541 .060(a)( 1).
36. Defendant Lanier’s unfair settlement practice, as described above, of failing to attempt in
good faith to effectuate a prompt, fair, and equitable settlement of the claim, even though
liability under the Policy is reasonably clear, constitutes an unfair method of competition
and an unfair and deceptive act or practice in the business of insurance. TEX. INS. CODE
§54 I .O6O(a)(2)(A)
37. Defendant Lanier failed to explain to Plaintiff the reasons for their offer of an inadequate
settlement. Specifically, Defendant Lanier failed to offer Plaintiff adequate
compensation without any explanation as to why full payment was not being made.
Furthermore, Defendants did not communicate that any future settlements or payments
would be forthcoming to pay for the entire losses covered under the Policy, nor did they
provide any explanation for the failure to adequately settle Plaintiffs claim. The unfair
settlement practice of Defendant Lanier as described above, of failing to promptly
provide Plaintiff with a reasonable explanation of the basis in the Policy, in relation to the
facts or applicable law, for the offer of a compromise settlement of Plaintiff’s claim,
constitutes an unfair method of competition and an unfair and deceptive act or practice in
the business of insurance. TEX. INS. CoDE §541 .060(a)(3).
38. Defendant Lanier’s unfair settlement practice, as described above, of failing within a
reasonable time to affirm or deny coverage of the claim to Plaintiff, or to submit a
reservation of rights to Plaintiff constitutes an unfair method of competition and an
unfair and deceptive act or practice in the business of insurance. TEx. INS. CODE
§541 .060(a)(4).
Page 10
39. Defendant Lanier did not properly inspect the Properly and failed to account for and/or
undervalued many of Plaintiff’s exterior and interior damages, although reported by
Plaintiff to State Farm. Defendant Lanier’s unfair settlement practice, as described
above, of refusing to pay Plaintiff’s claim without conducting a reasonable investigation,
constitutes an unfair method of competition and an unfair and deceptive act or practice in
the business of insurance. TEx. INS. CODE §54l.060(a)(7).
CAUSES OF ACTION AGAINST ALL DEFENDANTS
40. Plaintiff is not making any claims for relief under federal law.
F’RA U D
41. Defendants State Farm and Lanier are liable to Plaintiff for common law fraud.
42. Each and every one of the representations, as described above, concerned material facts
for the reason that absent such representations, Plaintiff would not have acted as they did,
and which Defendants State Farm and Lanier knew were false or made recklessly without
any knowledge of their truth as a positive assertion.
43. The statements were made with the intention that they should be acted upon by Plaintif1
who in turn acted in reliance upon the statements, thereby causing Plaintiff to suffer
injury and constituting common law fraud.
CoNsPIItcY TO COMMIT FRAUD
44. Defendants State Farm and Lanier are liable to Plaintiff for conspiracy to commit fraud.
Defendants State Farm and Lanier were members of a combination of two or more
persons whose object was to accomplish an unlawful purpose or a lawful purpose by
unlawful means. In reaching a meeting of the minds regarding the course of action to be
taken against Plaintiff, Defendants State Farm and Lanier committed an unlawful, overt
Page II
act to further the object or course of action, Plaintiff suffered injury as a proximate
result.
CAUSES OF ACTION AGAINST STATE FARM ONLY
45. Defendant State Farm is liable to Plaintiff for intentional breach of contract, as well as
intentional violations of the Texas Insurance Code, and intentional breach of the common
law duty of good faith and fair dealing.
BREAcH OF CONTRACT
46. Defendant State Farm’s conduct constitutes a breach of the insurance contract made
between State Farm and Plaintiff.
47. Defendant State Farm’s failure and/or refusal, as described above, to pay the adequate
compensation as it is obligated to do under the terms of the Policy in question, and under
the laws of the State of Texas, constitutes a breach of’ State Farm’s insurance contract
with Plaintiff.
NONCOMPLIANCE WITH TEXAS INSURANCE CODE:
UNFAiR SETTLEMENT PRACTICES
48. Defendant State Farm’s conduct constitutes multiple violations of the Texas Insurance
Code, Unfair Settlement Practices. TEx. INS. CODE §541.060(a). All violations under
this article are made actionable by TEx. INS. CODE §541.151.
49. Defendant State Farm’s unfair settlement practice, as described above, of misrepresenting
to Plaintiff material facts relating to the coverage at issue, constitutes an unfair method of
competition and an unfair and deceptive act or practice in the business of insurance. TEX.
INs. CoDE §541 ,060(a)( I).
50. Defendant State Farm’s unfair settlement practice, as described above, of failing to
attempt in good faith to effectuate a prompt, fair, and equitable settlement of the claim,
Page 12
even though State Farm’s liability under the Policy was reasonably clear, constitutes an
unfair method of competition and an unfair and deceptive act or practice in the business
of insurance. TEx. INS. CODE §541 .060(a)(2)(A).
51, Defendant State Farm’s unfair settlement practice, as described above, of failing to
promptly provide Plaintiff with a reasonable explanation of the basis in the Policy, in
relation to the facts or applicable law, for its offer of a compromise settlement of the
claim, constitutes an unfair method of competition and an unfair and deceptive act or
practice in the business of insurance. TEx. INS. CODE §541 .060(a)(3).
52. Defendant State Farm’s unfair settlement practice, as described above, of failing within a
reasonable time to affirm or deny coverage of the claim to Plaintiff, or to submit a
reservation of rights to Plaintiff constitutes an unfair method of competition and an
unfair and deceptive act or practice in the business of insurance. TEx, INS. CODE
§541 .060(a)(4).
53. Defendant State Farm’s unfair settlement practice, as described above, of refusing to pay
Plaintiff’s claim without conducting a reasonable investigation, constitutes an unfair
method of competition and an unfair and deceptive act or practice in the business of
insurance. TEx. INS. CODE §541 .060(a)(7).
NONCOMPLIANCE WITH TExAs INSURANCE CODE:
THE PROMPT PAYMENT OF CLAIMS
54. Defendant State Farm’s conduct constitutes multiple violations of the Texas insurance
Code, Prompt Payment of Claims. All violations made under this article are made
actionable by TEX. iNS. CODE §542.060.
55. Defendant State Farm’s failure to acknowledge receipt of Plaintiff’s claim, commence
investigation of the claim, and request from Plaintiff all items, statements, and forms that
Page 13
it reasonably believed would be required within the applicable time constraints, as
described above, constitutes a non-prompt payment of claims and a violation of TEX. INS.
CODE §542.055.
56. Defendant State Farm’s failure to notify Plaintiff in writing of its acceptance or rejection
of the claim within the applicable time constraints, constitutes a non-prompt payment of
the claim. TEX. INS. CODE §542.056.
57. Defendant State Farm’s delay of the payment of Plaintiff’s claim following its receipt of
alt items, statements, and forms reasonably requested and required, longer than the
amount of time provided for, as described above, constitutes a non-prompt payment of
the claim. TEX. INS. CODE §542.058.
ACTS CoNsTITuTING ACTING AS AGENT
58. As referenced and described above, and further conduct throughout this litigation and
lawsuit, Lanier is an agent of State Farm based on her acts during the handling olthis
claim, including inspections, adjustments, and aiding in adjusting a loss for or on behalf
of the insurer. TEX. INS. CODE §4001.051.
59. Separately, and/or in the alternative, as referenced and described above, State Farm
ratified the actions and conduct of Lanier including the completion of her duties under the
common law and statutory law.
BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING
60. Defendant State Farm’s conduct constitutes a breach of the common law duty of good
faith and fair dealing owed to insureds in insurance contracts.
61, Defendant State Farm’s failure, as described above, to adequately and reasonably
investigate and evaluate Plaintiff’s claim, although, at that time, State Farm knew or
Page 14
should have known by the exercise of reasonable diligence that its liability was
reasonably clear, constitutes a breach of the duty of good faith and fair dealing.
KNOWLEDGE
62. Each of’ the acts described above, together and singularly, was done “knowingly,” as that
term is used in the Texas insurance Code, and was a producing cause of Plaintif}’s
damages described herein.
DAMAGES
63. Plaintiff would show that all of the aforementioned acts, taken together or singularly,
constitute the producing causes of the damages sustained by Plaintiff.
64. As previously mentioned, the damages caused by the Storm have not been properly
addressed or repaired in the months since the Storm, causing further damages to the
Property, and causing undue hardship and burden to Plaintiff. These damages are a direct
result of Defendants State Farm’s and Lanier’s mishandling of Plaintiff’s claim in
violation of the laws set forth above.
65. For breach of contract, Plaintiff is entitled to regain the benefit of her bargain, which is
the amount of her claim, together with attorney’s fees.
66. For noncompliance with the Texas Insurance Code, Unfair Settlement Practices, Plaintiff
is entitled to actual damages, which include the loss of the benefits that should have been
paid pursuant to the policy, mental anguish, court costs, and attorney’s fees. For knowing
conduct of the acts described above, Plaintiff asks for three times her actual damages.
TEx. lNs.C0DE §541.152.
67. For noncompliance with Texas Insurance Code, Prompt Payment of Claims, Plaintiff is
entitled to the amount of her claim, as well as eighteen (18) percent interest per annum on
Page 15
the amount of such claim as damages, together with attorney’s fees, TEx. INS. CODE
§542.060.
68, For breach of the common law duty of good faith and fair dealing, Plaintiff is entitled to
compensatory damages, including all forms of loss resulting from the insurer’s breach of
duty, such as additional costs, economic hardship, losses due to nonpayment of the
amount the insurer owed, exemplary damages, and damages for emotional distress.
69. For fraud, Plaintiff is entitled to recover actual damages and exemplary damages for
knowingly fraudulent and malicious representations, along with attorney’s fees, interest,
and court costs.
70. For the prosecution and collection of this ciaim, Plaintiff has been compelled to engage
the services of the attorney whose name is subscribed to this pleading. Therefore,
Plaintiff is entitled to recover a sum for the reasonable and necessary services of
Plaintiff’s attorney in the preparatiOn and trial of this action, including any appeals to the
Court of Appeals and/or the Supreme Court of Texas.
JURY DEMAND
71. Plaintiff hereby requests that all causes of action alleged herein be tried before a jury
consisting of citizens residing in Webb County, Texas. Plaintiff hereby tenders the
appropriate jury fee.
Page 16
WRITfEN DISCOVERY
REQUEsTs FOR DISCLOSURE
72. Plaintiff’s Request for Disclosure to Defendant Stale Farm Lloyds is attached as “Exhibit
A.” Plaintff’s Request for Disclosure to Defendant Becky Lanier is attached as “Exhibit
A-I.”
REquESTS FOR PRODUCTION
73. Plaintjff’s Request for Production to Defendant State Farm Lloyds is attached as “Exhibit
B.” Plaint jff ‘.s Request for Production 10 Defendant Becky Lanier is attached as “Exhibit
B-I.”
INTERROGATORIES
74. Plainsff First Set of Inierrogatories to Defendant State Farm Lloyds is attached as
“Exhibit C.” Plainiff First Set of lnrerrogawries to Defendant Becky Lanier is
attached as “Exhibit C-I .“
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that upon trial hereof said
Plaintiff has and recovers such sums as would reasonably and justly compensate her in
accordance with the rules of law and procedure, as to actual damages, treble damages under the
Texas Insurance Code, and all punitive and exemplary damages as may be found. In addition,
PlaintifY requests the award of attorney’s fees for the trial and any appeal of this case, for all
costs of Court on her behalf expended, for prejudgment and postjudgment interest as allowed by
law, and for any other and further re(ief either at law or in equity, to which she may show herself
justly entitled.
Page 17
Respectfully submitted,
THE M0STYN LAW FIRM
Is/i. Steve Mostyn
3. Steve Mostyn
State Bar No. 00798389
jsrnefiledocketmostynlaw.com
3810 West Alabama Street
Nouston, Texas 77027
(713) 861-6616 (Office)
(713) 861-8084 (Facsimile)
ATTORNEY FOR PLAINTIFF
th•__
EITHER DEGOLLAcj
ler the tn C and
a
/ ,
Page 18
State District Court Jose A. Lopez
49TH Judicial District of Texas
State District Judge
Counties of Webb and Zapata
June 9, 2014
NOTICE OF CALENDAR CALL
CAUSE NO. 2O14CVFOO 1048 DI
ALMA PENA
vs
STATE FARM LLOYDS
PIeas take notice that this case is set for Calendar Call on 09/04/2014
at 130 PM at the 4915 District Court, 3 Floor, Webb County Justice Center.
All Calendar Call hearings will be in open Court and on the record before the Honorable
Judge Jose A. Lopez. Your presence is MANDATORY unless Counsel for PlaintifT(s) and
Defendant(s) have in place a pre-trial guideline order with both Counsel and Judges signatures
prior to calendar call date. This guideline order should have all appropriate dates including
prc-trial, jury selection and all deadlines.
Counsel for Plaintiff(s) please note that ii’ you (10 not appear for calendar call your case may
be dismissed for lack of prosecution.
Counsel for Defendanttp1ease note that if you do not appear for calendar call, a pre-trial
guideline order may he entered with or without your approval and/or signature.
ucstions regarding this matter please Feel Free to call our office at any time.
If there are any 9
‘‘ / ,L_—
Maria Rosario Ramirez
Civil Court Coordinator
th
49
District Court
Webb County• P.O. Box 6655• Laredo, Fcxas 78042 • tel. 956.523.4237• fax 956.523.5051
Zapata County • P.O. Box 789 Zapata, lexas 78076 • tel. 956.765.9935 • fax 956.765.9789
49di_dist.rictcourt@wehbcountytx .gov
DC:
** Transmit Confirmation Report **
P.1 Jun 92014 12:46pm
WEBB Co DISTRICT CLERK Fax:956—523—5121
I Name/Fax No.
Fine
Mode Start
09,12:46pm 0’43
Time Page Result
1 0 K
Note
[917138618084 *
State Distret Court Jose A. Lopez
9TH Judicial District of Texas
4
State District Judge
Counties of Webb and Zapata
June 9, 2014
NOTICE OF CALENDAR CALL
CAUSE NO. 2014CVF00104$ Di
ijs4ifENA
VS
STATE FARM LLOYDS
Please take notice that this casc is set for Calendar Call on 09/()4/2014 —
at 1:30 PM at the 49” District Court, 3” Floor, Webb County justice Center.
All Calendar Call hearings will be in open Court and on the record before the Honorable
judge Jose A. Lopez. Your presence is MANDATORY unless Counsel for Plaintiul(s) and
Defendant(s) base in place a pre.b-ial guideline order with both Counsel and Judge’s signatures
prior to calendar call datr. This guideline order should have all appropriate dates including
pretrial, jury selection and all dcadlin.
Counsel for Plaintifl?sI p
csse note that 1LyQIJ do not appej_r calendar call your case may
1
be disojissed for lack of prosecution.
unsel for T)efendant(a please ncste that if you do not appear for calendar call, a prc_trial
guidelin_e_ojder may be entered with or without your approval and/or signature.
If there arc any 9
oestions regarding this matter please feel tiee its call our oflice at any time.
- ,
Maria Rosario Ram irez
Civil Court Coordinator
th
49
District Court
Webb Cuniv . P.O. Boa 6615 Urdo, rcad, 7R042 916 1234237 fax 956 5231051
?.apaia Cnuaiy P.O. Bo l’” I cxa 7076 id. 95.?61.9’)3S las 956.761.9799
49th_duictc’ow’i0wcbbcountyoc .eov
IX’ L,”
TAB 2
OF THE RECORD
Filed
6/,13/201AA:09:20 PM.
Esth`` qeg?lla'ri.'1
. lState Farin :tO' p·a·¥ the fuif 'C:laim in accor~(lnce with 'th.e terms ohli.e Pqlic.y
was reasonaoly clear. However;. State. Farin has· refused to pay Plaintiffs, in fu 11,. de.spite
·,;,, •·
there being,, no basis whatsoever ·oii· which . a, reasonable insu.rance .c:ompany. w.ould have
relied ·to d~11y t.ne f~!ll.-payment. :State Farm's conduct c'onstltutes afaeach oft_he 'cornmon
law duty of good faith an_d fair dealing.
'.:29 . Defendants· State Farm and Farias: knowingly or. recklessly,made 'false:represef!taticms, ~s
described above, . as ·to \fnatef.iai' faets:·. and/or knowingly corn::ealed. all or. p_af!.of material
information from PiaintiffS.
30. As a f'esult of Oefenda'n~s Stat~ · F.arm''s and Farias' w.rongful (lets ·and . omissions,
Plaintiffs ..wefe forced ta retain the pro'fessional setvices oftne ario_mey ~nd law' firm , who
are . r~presenting them': ;vith r'eSp.e d tb~ these causes of action,
Page 7
Jh PlaintiffS' experience is' .f16t' a'ii ;is-olated case. ·the act$ and ornissions ~{tate Fa.n.n
COmTlJ itJ:ed· in this case, or similar acts and om issiOri.s, occur With.' imch frequehc;ytha.rtheY,
corysti!ute a gene~al;business practice·of State:Earm with,r~gard to har(dlliig these ty_pes of.
c_laims. Sta~e Farm!s < ~n.t.ire process is unfairly designed to.reach ,favora~le . outcomes' for.~
the company at the e_xpense·of.the pol icyholders.
CAU.S ES'OF.AC:flON:
eAUSES OF ACTION AGAINST DEFENi>ANt'FARIAS
NONCOMPLiANCE Wlill'TEXAS .INSURANCE'C:ODE.::
UNFAI~S~TTLE~_EN.T PRA~lJCE_~
32. Defendant State Fann assigned . Defendant f:ar_ias _t9``d,jL.1st"t~e Claim·.. Defendant Farias
was i.mproper-ly trained to ,handle·.cl'aims <)'f tbis. n(liure ._aJJ_d. p_<;:rf9_r111~d <(ln l!nre~sonable
.investigation of' PiafrttiffS' damages. Durin~ .bis: ihyest_ig_atiOJ!; ihe. adjl!ster failed ·to
properly assess Rlaintiffs' St6rl'n damag_es. Thee adjus~er aiso -6i1)jtte<1 cov.er.e.d 4a.JT1ages
from his report, including the :·da1iiages:to the home's ro·o(a'f1d 'siding: ih . laintiffs' ·d~mage~ \'{ere )essisev~re 1 than · they in fact were;_(3)
using his ·ow1i. ·statements-about the norHev~r.it~ ,of"t.he c!i!-m.age gs Cl basis for denying
propei-IY covered damages :and/or underpaying ;(f(l_mag~.~;\ ~nq_ ·(~) failing to proviOe an
adequate explanation for .the inadequate c6f\lpe_nsatltjn· P.lj:ilntiffs received, 'r:~efendanJ
Far.ias' 'unfair settlement practice, as· descrihe(f abbve; ani:l the exan1pie given herein, of
misrepresenting to Plaintiffs h1ateriai facts tclatin·g·to:thc. coverageJ aUs~l!e; constitut~s an
unfair method of competition and .ah unfaif and deceptiVe act or ·practice i.n the. b.usiness
of i_nsur.ance. 'Ttx. JNs. Coot §54:1.060(a)(.l ).
36.. [)cfe.ndimt Fari_a_s' un'fa,ir settlement. practice, as describecfab6ve, ot'Yailihg.·to atteJ'rlpt i11
good faith to effectuate.a prompt,Jair, arid ec'jTiftai5"i~ ·settle.inerit i;>ftbe ch:ilm, e..ven though
liability under the Policy IS reasonably clear, ·constitut~s1~n . urif?ir m(;:ihod of C_O!llpetition
and ,an Lin fair and deceptive act or practice: i.n th.e ~.Lisine.ss1 Qfin?tira_nce. TEX'. INS. CODE
§54 l .060(a)(2)(A).
-3 7-. Defendant. Farias failed to ·explain toj>iaihtiffs tlie. re.~sQns (qr J:iis.· off~r ·q_f an inadequate·
s~ttlem~nL Specifically,_ Defendant. Farias fa\fed to offer Plai'nt_iffa ll;qequate.
Pagei9:.
compensation without any expl'afiati.on . asr to w)1y "ful.I P.'!Yment was not .~eing ·111ade:.
Fu.rthermoi'e;. Defendant did n·ot ·communicate that ant fi.j{ure · s~t_tlemen'ts or payf!leufs
would be fofthcoining to pay fot"the eritfre iosses: co~ered .· under: th"e Policy; 'l).or diq, he
provide any explanation foftiie. failure to :adequately settle P-lail:itiffs ' claim, ·111e unfair
sefr!Cmcnt practice·of Defendant F.a:r.ias as desc~ibed a5ove·;..of failln·g to promptlyprovi&e
Plaintiffs:with a reasonable explanation of tlie basis in the PolicY,_, ·ih~relation to the facts'
or ·applic/ful pµrpose or· a lawful purpose by
unlawful'. means. In reachihg a meetlng'ofthe;_mind5 .regatdihg'th_e1cc;n,1r5e 9f 1;1Ction !O be
t?ken against-Plaintiffs, DefendafitS State:Fafin and Farias· comh]itte:cf an. unla~ft.iJ , oyert
;a_ct to further ·the, object or course of: actiOn .. 'Plaintiffs 'suffer~.9 inJL1r::y as: ~ proX:itn.~!e
resu!'t..
45. Defendant:State' Farm is Jiabie lo -Plaintiffs. for. iritentiohal
. . .. -· breach
. ... of-contract;
. ... ....... ,. as· well as
intentional ·violations ·of the Texas Insurance Coe;Je; an.d intentio.Da,r b.~eacli ·of the•common,
law. dLitY'of good'' falth ahd .fafr dealing.
Page rJ
BREACH'o1?·CoNTRJ\CT
46. Detbdant- State Farm's conduct' constiftites 'a breach o(the: insurance· contract made;
be!_ween State Farm and Plaintiffs.
4~ . Defendant State Fa.rm-' s failure and/or refusal~ as described ;abo\ie, to~ p~y the .ade_quat_e'.
cq.mp_ensation as it'is obligated to do under the terms,ofthe Pol!Cy in ·~(uestion, a:11d under
the laws of t he State of Texas, constitutes a .breacn of ·state Farm ;_3 lnsliYaiice. contnict
with Plaintiff~ .
NoNCOMPtlANCEWITH 'i:EX;\S J``UllAN'cE Cob£.:
UNFAiR SEHLEMEN;'r.PRACTICES
48, Defcryda,nt State .Farm's conduct constitutes inuitipJC' violations of'the Tex.as Jn~µrance
Code, .l.Infair Settlement Practices: TEX. INS'. CobE §54f.66o'(a). A'il . Vioiations uh_der
this article are .m<:J._de actionable.byTl~X. INS ~ . CODE §54'1.151 .
49. Defe.1dant Sta.te.Farm's unfairsettlcment,practice; as descr.ibed aboVe,,.oflnisrepresentl·ng
to: Piai~tif(s material :facts rela.ting ·to the coverage at 'issue, coiist!tutes~an. unfair iileth_od
of competition and an u[lfafr and, dec~ptive act. or. practice in the: business of'insufarice.
TEX. INS. CODE §54 L060(a)( I):
50. Defendant State Fa-rrh's unfair settlemen'l; prac~ice;· ~.s de~cribed above, of failing to.
attempt in go6'd faith to e(fectucite a prompt;. fair, a_nd ·e_quitable settlement oFthe ·claim,
even .though State Farrp "s li~_bility u_nqcr the P.olicy ·was reasonably clear; cohstitl.ites•an,
i.mfair methoc:J .of competition and an unfair and deceptive·. act..of, praetice'.i'ri the b!liiness
o(ins.u.r.anc_e, TEX., I~s. Cooi::-§541 .060(a)(4)(A) ..
'5:1. De.fen.cfant Stat~ farm's unfair .settlement practice,_ as~ aescribed: ab-ov·e,, of: fallii}g t9
promptly provide Plaintiffs v,ri_th :a· rea_s_onable explanation .of·the . basis in tffe'. Poi'icy, '. in
relation to the facts or _appl_icable law; for its offer of ·a compromise' settlelii'ent; oftlte:
Page 12:
Claim, cohstjtute~ ;m un_f~ir m~thod.· of con::ip.etition and an unfair· and· deceptive act 'or
practice, in th'e business,. of insurance: TE?( . INS: G':ooq§54 l.060(a)(3 ).
52. Defendant State Earm's' unfair settlemerit· practic~,·mpt paytne11t of:claims an¢ ;aryiplatfort·of TEX. l'Ns,.
CODE §.5:42.055.
'56~ DefendanLStatc·Fann ;sJailure to.n·otify Plainti.ffs'in·writing of its accep1ance or: rejection ·
ofahe .. claim ·within the applicabie time .constraints; ;constiNtes'ii)1ol'l~Pr.Qm.p_t; p(!y.r.nent of
the ·claim: TEX, INS. CODE §542.056.
P~.g~ '13:
·57. Defendanr'S.tate;Farrn. 's d<;l{!Y.9f the payrne11t_:.of Pl..mmonl'aw duty of good faith ,and1fair dealing, Plaintiffs"fore.'entitie·d.
to com:pens.11iory ·damages, i_nclµding al Lforms· of'loss··resultiiig:Jro-in the ~ihsurer'5(brea:th .
of duty, such, ci.s _additio_nal costs, economic: hardship,. losses due to· nonpaymeiit;·ofdle:
afno1.:nt the_:i'nsurer .owed, exem8lary qarn?ges, _a_nd' aamages"for emotional .distress.
Page 15
.69 .. Ear fraud.~ . Piaiiltiffs :are entitiec;t JO r~cqye_r:actl:la.1 dam_ages ·and . exemplary damag~s for:
kno\.\'. ln&iy fra\idU!ent and malicious repr~sent1:1~ions; al.orig with a'ttomey"'s. fees, interest~
anci court costs.
70. Fi:fr tlie prosecution and collection of this cl~ii:n, .Plaintjff~ hav~ been. cqmpelled: to engage
the services of the attorney Whose. narne is; stib~.cdpeq !o i_ht:? p]eading,, Therefore,
Plaintiffs are enti&d to receiver, a sum for 'the , rea_s.~:mable a11d · n.e``ssary s~syic~s of'
Plaihti ffs' attoi'ney'ln the P,reparation and·' tfial ·of this;action; h1ciu~i!1g'any app_e!llyto tl}e
Gourt ofAppeals and/oHhe,SLlpfcme Court of Texas.
JURY DEMAND
7i . .Plaintiffs her~_by "requ~st that al I causes of actiori ·alleged' herein·\)~ tried before a.Jury
co_nsisting of'cjtiz.ens :resi_ding in Webb Courit:x,, Texas. Piaintrffs hereby tender- the
appropriat_e jury fee .
"*·;· .
~ITTEN. DiSCO:VERY
.REQUf:STS FOR DISCLOSURE
72. Pldiiitiffs' Requestfdr Disclos_ure to .D_efenil.wit'$(aie fiarlJ! LJoyd~·; is attachedms "Exhibir
A." Plainriffi' ;·RecjuestfofDisdo§zire,19.fJ..efe.n{i.q}1t Fe'f.ipe Farias. is attached as '~Exhi bit
Acl ."
\i./i:.JEREFQRE, PREMISES CQNSIDEREB, -p1<1..intiffs .Pr'!y that upon triaLh.ereof?, s·aid
Rfaintiffs nave ?nd recover such sums intereser;i,b,le
Judge Jose A. l:ope_z, Yo~ pres_ence ~is MANDATORYunfess CounseLf6r,Plairitiff(s) and
Defendant(s) have l'n plate;a,,pre-tf.i~\ guidelin~ order ~i.tJi·:boih_ G_ouns~I:anclJudge's .signatures
prior to calendar call .date .. This1guideline order should hav:e aJl a,pproprtate ,dates in{:Illifrt a-nd·c.i.i1.th.e r:.e.::ord~licforc•the· Hori'otab.ie
]udgeJose A., Lopez. Yoill"prt;sence is-MANDATORY urilcs.s Gounsel f9d~l~in~iff(~) arid.
Defendant(s)"have .in··pl'ace a pre -triaFgui'.c.all .appropriate«lates in~luding,
prectri~I. jury sc:l ect'io11 an (J .a II deadliiies _.
Counsel for PlaintilT(s)'·please note ,that if you do :not appear for·calcndar call your case mav
be dismissed for fackofprosecut.ion.
Cow1sei for Defondant(s):please r~c)~e that iLy ou do-mifappear fordlendar- call'.·a.pre-tiial
guideli1ie order ma5' lK734 S.W.2d 343. 348-49 (Tex. 1987).
disseminated in turn to
[T]he fruits of discovery are available not only to the parties in a particular case hut may he
other litigants and potential litigants. Eli Lilly & Co. v. Marshall, 850 S.W.2d 155, 160 (Tex. 1993).
See Garcia, 734 S.W.2d at 348-49.
Page 4
all parties, including those documents that insurance company defendants regularly seek to
protect as trade secrets and/or proprietary material. The Court should enter Plaintiff’s Proposed
Protective Order, which will adequately protect Defendants from disclosure of their purported
confidential andor privileged trade secrets and proprietary information during discovery, as well
as streaniline the discovery process through the shared discovery provision.
PRAYER
WHEREFORE. PREMISES CONSIDERED, Plaintiff prays this Honorable Court to
grant Ploint(ft s Motion for Entry ofProtective Order and sign and enter in this case Plaintiff’s
Proposed Protective Order attached hereto as “Exhibit A.” Plaintiff also requests any other and
further relief either at equity or in law, to which Plaintiff may show herselfjustly entitled.
Respectfully submitted,
THE MOSTYN LAW FIRM
i’s/f Steve Mos’n
J. Steve Mostyn
State Bar No. 00798389
j smdocketefilemostynlaw.com
3810 West Alabama Street
Houston, Texas 77027
(713) 861-6616 (Office)
(713) 861-8084 (Facsimile)
ATTORNEY FOR PLAINTIFF
(*m-copy oft origin 1,1 cer4
th.c910’ —
Page 5
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been forwarded to all
counsel of record on this 22nd day of January, 2015, in accordance with the Texas Rules of Civil
Procedure.
/s/J Steve IvIostvn
J. Steve Mostyn
CERTIFICATE OF CONFERENCE
Counsel for movant and counsel for respondent have personally conducted a conference
at which there was a substantive discussion of each item presented to the Court in the foregoing
motion and despite best efforts, counsel for the parties have not been able to resolve such
matters. Thus, the Court’s intervention is needed at this time.
Certified to on the 20th day of January 2015, by:
/s/Andrew P. Taylor
Andrew P. Taylor
Page 6
Filed
1122/2015 11:46:49AM
Esther Degollado
District Clerk
Webb District
201 4-CVF-001 048-Di
CAUSE NO. 2014-CVF-001048-Dl
ALMA PENA, § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER, §
Defendants. § 49TH JUDICIAL DISTRICT
PROTECTIVE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced by the parties and non-parties in this litigation, and that the following
provisions, limitations, and prohibitions are appropriate pursuant to and in conformity with the
Texas Rules of Civil Procedure. Therefore, it is hereby ORDERED that:
1. All Confidential Information produced or exchanged in the course of this litigation shall
he used solely for the purpose of the preparation and trial of this litigation and other related
litigation against State Farm Lloyds (including its employees) or any third party adjusting
firm (including its employees) that adjusted claims arising out hailstorms and/or
windstorms in Texas with a date of loss in 2013, and for no other purpose. “Related
Litigation” means a first-party lawsuit in Texas by an insured against State Farm Lloyds
and its adjusters or adjusting companies that produced the Confidential Information for
damages to insured property arising out of hailstonns and/or windstorms in Texas with a
date of loss in 2013. Confidential Information shall not he disclosed to any person except
in accordance with the tenns of this Order.
2. “Confidential Infonnation,” - information of any type which is
frr4opy of th€bçp;nd) jcerb -
the n.-4.31 day df—7’IAAA)2Ø
, ESTfrR DEéILAflP I
r 0 9,e co rtk-nd
By_____
designated as “Confidential” by any of the supplying or receiving parties, including
information received from non-parties. whether it is a document, information contained in a
document, information revealed during a deposition, information revealed in an
interrogatory answer or otherwise At the sole discretion of the producing party, the
producing party may place on any documents that are subject to this Protective Order, bates
numbers and/or a legend to indicate the document is “Confidential,” subject to a Protective
Order and is produced under the specific cause number; however, the producing party shall
not label designated documents with a watermark.
3. The disclosure of Confidential Information is restricted to Qualified Persons. “Qualified
Persons,” as used herein, means: the parties to pending litigation arising out of hailstorms
and/or windstorms in Texas a date of loss in 2013; their respective counsel; counsel’s staff;
expert witnesses; outside service providers and consultants providing services related to
document and ESI processing, hosting, review, and production; the Court; other court
officials (including court reporters); the trier of fact pursuant to a sealing order, and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any other
person may be designated as a Qualified Person by order of this Court, after notice to all
parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential Infonnation to
a person who is not a Qualified Person or counsel for the party designating party, and
consent shall not be unreasonably withheld. However, until said requesting party receives
written consent to further disclose the Confidential Information, the further disclosure is
hereby prohibited and shall not he made absent further order of this Court. If the
designating party grants its consent, then the person granted consent shall become a
Page 2
Qualified Person under this Order.
5. Lead counsel for each party shall provide a copy of this Order to any person to whom
Confidential Information is to be disclosed, including each party sucb counsel represents,
and shall advise such person of the scope and effect of the confidentiality provisions of this
Order and the possibility of punishment by contempt for violation thereof Further; before
disclosing Confidential Infrrmation to any person, lead counsel for the party disclosing the
information shall obtain the written acknowledgment of that person binding him or her to
the terms of this Order. The written acknowledgment shall be in the fonn of “Exhibit A”
attached hereto. Lead counsel for the disclosing party shall retain the original written
acknowledgment, and furnish a copy of the signed written acknowledgment to counsel for
the party designating the information as confidential within ten (10) business days.
6. Infonnation shall be designated as Confidential Information within the meaning of this
Protective Order by following the protocol below that coesponds to the format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing Confidential
Information with the following legend: “Confidential & Proprietary/Produced
Pursuant to a Conf. Agree./Prot. Order” or “Confidential Proprietary & Trade
Secret/Produced Pursuant to a Conf. Agree./Prot. Order,” but not so as to obscure
the content of the document.
b. For static image productions by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing Confidential
Information with the following legend: “Confidential & Proprietary/Produced
Pursuant to a Conf. Agree./Prot. Order” or “Confidential Proprietary & Trade
Page 3
Secret/Produced Pursuant to a Conf. Agree./Prot. Order,” but not so as to obscure
the content of the image.
c. For native format productions, by prominently labeling the delivery media for ESI
designated as Confidential Information as follows: “Confidential &
Proprietary/Produced Pursuant to a ConE Agree. Prot. Order” or “Confidential
Proprietary & Trade Secret/Produced Pursuant to a ConE Agree./Prot. Order.” In
addition, at the election of the producing party, the electronic file may have
appended to the file’s name (immediately following its Bates identifier) the
following protective legend: “CONFIDENTIAL
SUBJ TO PROTECTIVE ORDER IN Cause No. 2014-C VF-00] 048-DJ; Alma
Pena v. State Farm Lloyds and Becky Lanier; in the 49th District Court, Webb
County, Texas.” When any file so designated is converted to a hard copy or static
image for any purpose, the document or image shall bear on each page a
protective legend as described in 6.a. and 6.b. above. If a native file containing
Confidential Information is used during a deposition. meet and confer, trial, or is
othenvise disclosed post-production. the party introducing, referencing, or
submitting the native file must append the the file’s name (immediately following
its Bates identifier) the following protective legend: “CONFIDENTIAL
SUBJ TO PROTECTIVE ORDER IN Cause No. 2014-C VF-00]048-D]; Alma
Pena v. State Farm Lloyds and Becky Lan/er; in the 49th District Court, Webb
County, Texas,” if such legend does not already appear in the file name. Any
party using a native file containing Confidential Information in a deposition,
hearing, or at trial must indicate the designation on the record so that it is reflected
Page 4
in the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may place on any
hard-copy documents that are subject to this Protective Order watennarks or seals
to indicate the document is subject to a Protective Order and is produced tinder the
specific cause number.
7. Any party who inadvertently discloses Confidential Information during the discovery
process shall, immediately upon discovery of the inadvertent disclosure, give notice in
writing to the party or parties in possession of such information that the infonnation is
designated as “Confidential” and shall request its immediate return. Afler receipt of such
notice, the parties shall treat the information so designated as Confidential Information
under the terms of this Order, unless released of this duty by further order of this Court.
Additionally, any party who inadvertently discloses Confidential Infonnation during the
discovery process shall, immediately upon discovery of the inadvertent disclosure, give
notice in writing to the party which produced and provided this information, the names and
addresses of the persons to whom it was disclosed and the date of the disclosure together
with a copy of the notice by which the inadvertently disclosing party requested the
immediate return of the documents.
as
8. Information previously produced during this litigation and not already marked
Confidential Infonnation shall be retroactively designated within thirty (30) days of ent’
of this Order by providing written notice to the receiving parties of the Bates identifier or
other identifying characteristics for the Confidential Information.
a. Within thirty (30) days of receipt of such notice, or such other time as may be
agreed upon by the parties, any parties receiving such notice shall return to the
Page 5
designating party all undesignated copies of such information in their custody and
possession, in exchange for the production of properly designated information, or
alternatively (upon the agreement of the parties) shall (i) affix the legend to all
copies of such designated infonnation in the party’s possession, custody, or control
consistent with the terms of this Protective Order, and/or (ii) with respect to ESI,
take such reasonable steps as will reliably identify the item(s) as having been
designated as Confidential Infonnation.
b. Information that is unintentionally or inadvertently produced without being
designated as Confidential Information may be retroactively designated by the
producing party in the manner described in paragraph 7.a. above. If a retroactive
designation is provided to the receiving party in accordance with Texas Rule of
Civil Procedure 193.3(d) the receiving party must (i) make no further disclosure of
such designated information except as allowed under this Order; (ii) take reasonable
steps to notify any persons who were provided copies of such designated
information of the terms of this Order; and (iii) take reasonable steps to reclaim any
such designated information in the possession of any person not pennitted access to
such infbnuation under the tenns of this Order. No party shall be deemed to have
violated this Order for any disclosures made prior to notification of any subsequent
designation.
9. Any party may request the party designating infonnation as “Confidential” to consent to re
designate confidential information as not confidential, which request shall not be rejected
absent a good-faith detennination by the designating party that the Confidential
Infonnation is entitled to protection.
Page 6
10. Deposition testimony is Confidential Information under the terms of this Order only if
counsel for a party advises the court reporter and opposing counsel of that designation at
the deposition, or by written designation to all parties and the court reporter within thirty
(30) business days after receiving the deposition transcript. All deposition transcripts shall
be considered confidential until thirty (30) days following the receipt of the deposition
transcript. The court reporter shall note on the record the designation of said information as
Confidential and shall separately transcribe those portions of the testimony and mark the
face of such portion of the transcript as “Confidential.” The parties may use Confidential
Infonnation during any deposition, provided the witness is apprised of the terms of this
Order and executes the acknowlednent attached hereto as Exhibit “A.” The parties may
use Confidential Information during a deposition only if the room is first cleared of all
persons except the court reporter, the witness being deposed, counsel for the parties and
any expert entitled to attend, and only if said witness executes the acknowledgement
attached as Exhibit “A.”
11. In the case of interrogatory answers, responses to request for production. and responses to
requests for admissions, the designation of Confidential Infonnation will he made by
means of a statement in the answers or responses specifying that the answers or responses
or specific parts thereof are designated as Confidential Information. A producing party
shall place the following legend on each page of the interrogatory answers or responses to
requests for admission: “Contains Confidential Information.”
12. Confidential Information disclosed during a meet and confer or otherwise exchanged in
infonnal discovery, shall be protected pursuant to this Order if counsel for the disclosing
party advises the receiving party the information is Confidential Information. If the
Page 7
Confidential Information disclosed during a meet and confer or otherwise exchanged in
informal discovery is in the form of hard-copy documents, static images. or native files,
that information shall be designated as Confidential Information pursuant to paragraphs 6
a., h., and/or c. depending on the format of the materials introduced.
13. At any time after the delivery of Confidential Documents, and after making a good-faith
effort to resolve any disputes regarding whether any designated materials constitute
Confidential Information, counsel of the party or parties receiving the Confidential
Documents may challenge the Confidential designation of all or any portion thereof by
providing written notice of the challenge to counsel for the party disclosing or producing
the Confidential Documents. The party or parties disclosing or producing the Confidential
Documents shall have twenty (20) days from the date of receipt of a written challenge to
file a motion for specific protection with regard to any Confidential Documents in dispute.
If the party or parties producing the Confidential Documents does not timely file a motion
for specific protection, then the Confidential Documents in dispute shall no longer be
subject to confidential treatment as provided in this Order.
14. If a timely motion for specific protection is filed, any disputed document will remain
confidential until a contrary determination is made by the Court and all such documents,
information or testimony shall continue to be treated as Confidential Information until this
Court makes a contrary decision regarding the status of the documents, information or
testimony. At any hearing to resolve a challenge of a Confidential designation, the party
designating the information as “Confidential” shall have the burden to establish that partvs
right to protection as if this Order did not exist. A party’s failure to challenge the
designation of documents, infonnation, or testimony as “Confidential” infonnation does
Page 8
not constitute an admission that the document. infonnation or testimony is, in fact.
sensitive, confidential, or proprietary. No party waives its right to contend at trial or hearing
that such document, information or testimony is not sensitive, confidential, privileged or
proprietary, provided the party provides notice of intention to do so at least twenty (20)
days before such trial or hearing.
15. Any papers filed with the Court in this action that make reference to Confidential
Information, or contain information derived therefrom, shall be considered Confidential
Information and shall be governed by the terms of this Order. These papers shall be filed
under seal and shall remain sealed with the District Clerk’s Office so long as the materials
retain their stratus as Confidential Information.
16. Pursuant to the agreement of the parties, no disclosure, production, or exchange of
information in this case shall constitute a waiver of any applicable attorney-client privilege
or of any applicable work product protection in this or any other federal or state
proceeding. This Protective Order applies to any information disclosed, exchanged,
produced, or discussed — whether intentionally or inadvertently — among the parties, their
counsel and/or any agents (such as vendors and experts) in the course of this litigation.
Upon learning of a production of privileged or work product protected information, the
producing party shall within ten (10) days give all counsel of record notice of the
production pursuant to Texas Rule of Civil Procedure 193.3(d). The receiving party must
promptly return, sequester or destroy the produced information and all copies and destroy
any notes that reproduce, copy, or otherwise disclose the substance of the privileged or
work product protected infonnation.
17. Further, production pursuant to this Protective Order shall not be deemed a waiver of:
Page 9
________
_____
a. Any party’s right to object to any discovery request on any ground.
h. Any party’s right to seek an order compelling discovery with respect to any
discovery request.
c. Any party’s use and review of its own Confidential Jnfonnation in its sole and
complete discretion.
d. The status of any material as a trade secret.
18. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
This Order shall remain in effect unless or until amended, altered, modified, or
vacated by the Court or by the written agreement of all parties to this action filed with
the Court, pursuant to Rule 11 of the Texas Rules of Civil Procedure.
IT IS SO ORDERED on this day of 2015.
JUDGE PRESIDING
Page 10
___________________________, ________________________
EXHIBIT “A”
CAUSE NO. 2014-CVF-001048-D1
ALMA PENA, § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER, §
Defendants. § 49TH JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
I, of in order to be provided access to
information designated as “Confidential” tinder the Protective Order entered in the 49th Judicial
District Court of Webb County, Texas (the “Court”) in Cause No. 2014-CVF-001048-D1, Alma
Pena v. State Farm Lloyds and Becky Lanier (the “Lawsuit”). represent and agree as follows:
1. I have been provided with a copy of the Protective Order entered by the Court in the
Lawsuit, I have reviewed said copy and I am familiar with its terms.
2. With regard to any and all “Confidential” information to which I am given access in
connection with the Lawsuit, I agree to be bound by the provisions of the Protective
Order.
3. I consent to the exercise of jurisdiction over me by the Court with respect to the
Protective Order.
4. I agree that copies of this undertaking will be sent to counsel of record for all parties in
the Lawsuit.
DATED: SIGNATURE:
Filed
1/22/2015 11:46:49AM
ptFper Degollado
Clerk
let
0
Cited
As of: Jun 19, 2014
In re State Farm Lloyds
NO. O9-03311 CV
COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT
2003 Tex. App. LEXIS 8115
September 18, 2003, Opinion Delivered
DISPOSITION: [*1] WRIT OF MANDAMUS During the course of discovery in the underlying
DENTED. litigation, Cause No. E-166, 963, Grace Tabernacle
United Pentecostal Church International v. State Farm
COUNSEL: Clint W. Lewis, Lewis & Associates, Insurance Companies, et a]., the plaintiff sought
Beaumont. Christopher W. Martin, Martin, Disiere, production of certain documents. Because the documents
Jefferson & Wisdom, Houston, for relator. comprised trade secrets or proprietary information, the
trial court issued a protective order that restricted
Michael Ramsey, Provost, Umphrey Beaumont. John disclosure of [*2] the “classified information’ to “the
Cowan, Provost, Umphrey, Beaumont. J. Steve Mostyn, currently named parties, their respective counsel, and
Houston, for real party in interest. expert witnesses the parties anticipate calling at trial in
this litigation or any related litigation against Defendants
JUDGES: Before McKeithen, C.J., Burgess and in which Plaintiffs counsel is an attorney of record.”
Gaultney, JJ. Objecting to the “related litigation” clause in the
protective order, State Farm filed this petition for writ of
OPIMON Mandamus. Because we conclude the tnal court’s order
adequately protected State Farm from the involuntary
Original Proceeding disclosure of its trade secrets, we hold that the trial court
did not abuse its discretion in this matter. See In re Eli
MEMORANDUM OPINION’
Lilly Co. v. Marshall, 850 S.W.2d 155, 36 Tex. Sup. Ct. I
1 TEX.R.APP.P.47.4. 507 (Tex. 1993); Garcia v. Peeples, 734 5. W2d 343, 30
Tex. Sup. Ct. 1. 591 (Tex. 1987). We deny the petition for
State Fanri Lloyds seeks a writ of mandamus writ of mandamus.
commanding the Honorable Donald Floyd, Judge for the
172nd District Court of Jefferson County, to vacate a WRIT DENIED.
protective order and to issue a different protective order
PER CURIAM
that restricts the use and disclosure of certain privileged
documents to the specific case before the trial court. For
the reasons stated below, we deny relief
4j5POpy of
th.r1 day
By
TAB 6
OF THE RECORD
Filed
1/22(2015 3:57:34 PM
Esther Degollado
District Clerk
Webb District
201 4-CVF-001 162-D1
CAUSE NO. 2014-CVF-001162-Dl
RAUL RODRIGUEZ AND NOEMI § IN THE DISTRICT COURT OF
RODRIGUEZ,
§
§
Plaintiffs, §
§
v.
§ VEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
FELIPE FARIAS,
§
§
Defendants. § TH
49
JUDICIAL DISTRICT
PLAINTIFFS’ MOTION FOR ENTRY OF PROTECTIVE ORDER
TO THE HONORABLE JUDGE OF THIS COURT:
COME NOW, Noemi Rodriguez and Raul Rodriguez (“Plaintiffs”) and file this
Plot ntiffs’ Motion Jbr Entry of Protective Order. Plaintiffs respectfully move this Honorable
Court to enter Plaintiffs’ proposed “Protective Order” attached hereto and incorporated herein as
Plaintiffs’ “Exhibit A.” In support thereof, in accordance with the Texas Rules of Civil
Procedure, Plaintiffs would show this Honorable Court the following:
I.
INTRODUCTION
1. Plaintiffs file this motion to address State Farm Lloyds’ (“State Farm”) objections to
several of Plaintiffs’ discovery requests on the grounds that the requests seek production of
confidential and/or privileged trade secrets or proprietary business information.’ The Court
should grant Plaintiffs’ Motion for Entry of Protective Order and enter Plaintiffs’ proposed
1
See Plaintiffs’ “Exhibit B,” attached hereto and incorporated herein, including, but not limited to, State
Farm’s
Objections/Responses to Plaintiffs’ First Request for ProductionNos. 3, 7. 11. 12, 15. 16. and 18.
Protective Order, which adequately addresses Defendant State Farm’s concerns regarding the
disclosure of its purported proprietary inforniation and/or trade secrets and which will allow
Plaintiffs to obtain previously \vithheld discovery that Plaintiffs are otherwise rightfully entitled
to seek and obtain from State Farm in this case. More specifically, Plaintiffs’ proposed
Protective Order is appropriate and should be entered in this case because:
(A)Plaintiffs’ Proposed Protective Order provides all parties, including State Farm Lloyds,
adequate protection from disclosure of trade secret and proprietary information;
(B) Plaintiffs’ Proposed Protective Order is consistent with protective orders previously
entered and used for substantially similar litigation involving Plaintiffs’ counsel and State
Farm; and
(C) Plaintiffs’ Proposed Protective Order contains a Shared Discovery” provision which will
provide for more efficient discovery.
II.
ARGUMENTS & AUTHORITIES
A. Plaintiffs’ Proposed Protective Order Provides All Parties Protection for
Confidential Information.
2. State Farm has objected to the production of documents on the ground that the
documents contain confidential, proprietary business information, and trade secrets.
2 Plaintiffs’
Proposed Protective Order provides protection for all the parties’ confidential and/or proprietary
3
information. Plaintiffs’ Proposed Protective Order will operate to provide security to State
Farm and other Defendants in this case with regard to the production of any documents deemed
to be sensitive and/or confidential as well as protect the confidentiality of Plaintiffs, if any.
Accordingly, Plaintiffs respectfully moves this Court to enter Plaintiffs’ Proposed Protective
Order and order the parties to execute a’eements to be bound by this protective order.
B. Plaintiffs’ Protective Order is Consistent With Previously Authorized and Effective
Protective Ordei’s Blessed by Other Courts of this State.
2
See Plaintiffs’ “Exhibit B.”
See Plaintiffs “Exhibit A.”
Page 2
3. In In re State Lana Lloyds, Defendant State Farm Lloyds sought a writ of mandamus
commanding the trial court to vacate a protective order that allowed documents obtained
in the
case to be used in ‘related litigation agaiust Defendants in which Plaintiffs’
counsel is an
attorney of record.” State Farm wanted a different protective order issned that restricted the use
and disclosure of certain privileged documents to the specific case before the trial
court. The
Court of Appeals concluded that the trial court’s order adequately protected the Defendants
frotn
the involuntary disclosure of its trade secrets, and therefore, the Court denied the petition for
writ
of mandamus.
5
4. Plaintiffs’ proposed protective order here is substantially similar to the protective order
blessed by higher Texas courts. Further, the language of Plaintiffs’ Proposed Protective Order
is
nearly identical to a protective order recently entered in a similar first party case involving State
Farm and Plaintiffs’ counsel,
6 and State Fann was actively involved in crafting the language
contained in that protective order, and thus, has already conceded that the provisions in
Plaintiffs’ proposed Protective Order will adequately protect it in this substantially similar
litigation. For these reasons and more, the Court should pant Plaintiffs’ ‘lotion for Entry of
Protective Order.
C. Plaintiffs’ Proposed Protective Order Contains A Shared Discovery Provision
Which Will Provide For Efficient Discovery.
5. Shared discovery makes the judicial system more efficient.
7 Under the doctrine of shared
discovery, the products of discovery may be disseminated to other litigants and persons who are
In reState Farm Lloyds, 2003 Tex. App. LEXIS 8115 (Tex. App—Beaumont Sept. 18, 2003); see also Plaintiffs’
“Exhibit C,” attached hereto and incorporated herein.
1d
5
6
See Alejos Ramirez and Ofelia Ramirez v. State Farm Lloyds and sylvia Garza, Cause No. C-3$28- 1 3-D; the
In
206 District Court of Hidalgo County. Texas.
See Gaivia i.. Peeples, 734 S.W.2d 343, 348-49 (Tex. 1987).
Page 3
potential litiga
8 nts. Plaintiffs’ attorneys are involved in litiga
tion against insurance companies in
several counties throughout Texas. Shar
ing discovery is appropriate in this circumsta
nce to
ensure efficiency in the discovery process, and
will benefit all parties.
6. In addition to making discovery more effic
ient, the shared discovery provision should
make discovery more truthful and lead to fUll
disclosure. “Shared discovery is an effective mean
s
to insure full and fair 9 disclosure.” It has been the experience
of Plaintiffs’ counsel, in other
litigation against insurance companies that the
product of discovery varies greatly in both
completeness and scope. Shared discovery is
designed to remedy that discovery practice.
and
ensure that all litigants have access to the disco
verable information.
‘II’
CONCLUSION
7. Plaintiffs’ Motion for Entry of Protective
Order should he granted, and Plaintiffs’
proposed Protective Order attached hereto as Exhi
bit A entered in this case. Plaintiffs’ Proposed
Protective Order is not overly burdensome to Defe
ndant or in any way novel or unusual. It is
nearly identical to the protective orders entered
by other courts of this state for substantially
similar first-party insurance litigation involving State
Farm and arising out of property damage
claims arising out of hunicane, hail, or windstorm
. Moreover, PlaintifTh’ Proposed Protective
Order has proven effective in protecting the “con
fidential” nature of the discovery products for
all parties, including those documents that insu
rance company defendants regularly seek to
protect as trade secrets and/or proprietary material.
The Court should enter PlaintifTs’ Proposed
Protective Order, which will adequately prote
ct Defendant State Farm from disclosure of
its
[T]he fruits of discovery are available not only to the
parties in a particular case but may be disseminated
other litigants and potential litigants. EliLilly & C’o. in turn to
i Marshall, 850 S W.2d 155, 160
See Garcia, 734 S.W.2d at 348-49. (Tex. 1993).
Page 4
purported confidential and/or privileged trade secrets and proprietary information during
discovery, as well as streamline the discovery process through the shared discovery provision.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray this Honorable Court grant
P!aintift- ‘Motion jbr Ent of Protective Order and enter Plaintiffs’ Proposed Protective Order
attached hereto as Exhibit “A.” Plaintiffs also request any other and further relieL either at
equity or in law, to which Plaintiffs may show themselves justly entitled.
Respectfully submitted,
THE MOSTYN LAw FIRM
/s/ J. Steve Mostvn
J. Steve Mostyn
State Bar No. 00798389
jsmdocketefilemostynlaw.com
3810 West Alabama Street
Houston, Texas 77027
(713) 861-6616 (Office)
(713) 861-8084 (Facsimile)
ATTORNEY FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been forwarded to all
counsel of record on this 22nd day of January, 2015 in accordance with the Texas Rules of Civil
Procedure.
Page 5
By
CERTIFICATE OF CONFERENCE
I hereby certify that Plaintiffs’ counsel
conlerred with defense counsel about
raised in this motion. However, the parti the issues
es caimot agree. Therefore, the Court’s
necessary at this time. intervention is
/s/ J. Steve Mostn
J. Ste.ve Mostyn
Page 6
Filed
1/22/2015 3:5734 PM
Esther Degollado
District Clerk
Webb District
2014-C VF-001 162-Di
CAUSE NO. 2014—CVF-001162-D1
RAUL RODRIGUEZ AND NOEMI § IN THE DISTRICT COURT OF
RODRIGUEZ, §
§
Plaintiffs, §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
FELIPE FARIAS, §
§
TH
49
Defendants. § JUDICIAL DISTRICT
PROTECTIVE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced by the parties and non-parties in this litigation, and that the following
provisions, limitations, and prohibitions are appropriate pursuaffi to and in conformity with the
Texas Rules of Civil Procedure. Therefore, it is hereby ORDERED that:
1. All Confidential Information produced or exchanged in the course of this litigation shall
be used solely for the purpose of the preparation and trial of this litigation and other related
litigation against State Farm Lloyds (including its employees) or any third party adjusting
firm (including its employees) that adjusted claims arising out hailstomm and/or
windstonns in Texas with a date of loss in 2012. and for no other purpose. “Related
Litigation” means a first-party lawsuit in Texas by an insured against State Fann Lloyds
and its adjusters or adjusting companies that produced the Confidential Information for
damages to insured property arising out of hailstorms and/or windstorms in Texas with a
date of loss in 2012. Confidential Information shall not be disclosed to any person except
in accordance with the terms of this Order.
2. “Confidential Information,” as u.sed herein, means any infbrmation of any type which is
designated as “Confidential” by any of the supplying or receiving parties, including
infonnation received from non-parties, whether it is a document, infonnation contained in a
document. infonnation revealed during a deposition, infonnation re\’ealed in an
interrogatory answer or otherwise. At the sole discretion of the producing party, the
producing party may place on any documents that are subject to this Protective Order, bates
nunthers and/or a legend to indicate the document is “Confidential,” subject to a Protective
Order and is produced under the specific cause number; however, the producing party shall
not label designated documents with a watermark.
3. The disclosure of Confidential Information is restricted to Qualified Persons. “Qualified
Persons,” as used herein, means: the parties to pending litigation arising out of hailstorms
and/or windstorms in Texas a date of loss in 2012; their respective counsel; counsel’s staff;
expert witnesses; outside service providers and consultants providing services related to
document and ESI processing. hosting, review, and production; the Court: other court
officials (including court reporters); the trier of fact pursuant to a sealing order; and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any other
person may be designated as a Qualified Person by order of this Court, after notice to all
parties and a hearing.
4.Any party may serve a written request for authority to disclose Confidential Infonnation to
a person who is not a Qualified Person or counsel for the party designating party. and
consent shall not be unreasonably withheld. However, until said requesting party receives
written consent to further disclose the Confidential Infonnation, the further disclosure is
hereby prohibited and shall not be made absent ifirther order of this Court. If the
Page 2
designating party grants its consent, then the person granted consent shall become a
Qualified Person under this Order.
5. Lead counsel for each party shall provide a copy of this Order to any person to whom
Confidential hiformation is to be disclosed, including each party such counsel represents,
and shall advise such person of the scope and effect of the confidentiality provisions of this
Order and the possibility of punishment by contempt for violation thereof Further, before
disclosing Confidential Infonnation to any person. lead counsel for the party disclosing the
information shall obtain the written acknowledgment of that person binding him or her to
the tenns of this Order. The written acknowledgment shall be in the fonn of “Exhibit A”
attached hereto. Lead counsel for the disclosing party shall retain the original written
acknowledgment, and furnish a copy of the signed written acknowledgment to counsel for
the party designating the information as confidential within ten (10) business days.
6. Information shall be designated as Confidential Information within the meaning of this
Protective Order by following the protocol below that corresponds to the format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing Confidential
Information with the following legend: “Confidential & Proprietary/Produced
Pursuant to a Conf Agree./Prot. Order” or “Confidential Proprietary & Trade
Secret/Produced Pursuant to a Conf. Agree./Prot. Order,” but not so as to obscure
the content of the document.
b. For static image productions by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing Confidential
Information with the following legend: “Confidential & Proprietary/Produced
Page 3
Pursuant to a Conf. Agree./Prot. Order” or “Confidential Proprietary & Trade
Secret/Produced Pursuant to a ConE Agree./Prot. Order,” but not so as to obscure
the content of the image.
c. For native format productions, by prominently labeling the delivery media for £51
designated as Confidential hifomwtion as follows: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or “Confidential
Proprietary & Trade Secret/Produced Pursuant to a Conf Agree./Prot. Order.” In
addition, at the election of the producing party, the electronic file may have
appended to the file’s name (immediately following its Bates identifier) the
following protective legend: “CONFIDENTIAL
SUBJ TO PROTECTIVE ORDER IN CA USE NO. 2014-C VP- 00]] 62-D];
Noemi Rodriguez ond Rout Rodriguez vs. State Form Lloyds ond Felipe Farios In
the District Court of Webb County, Texas, 49 Judicial District” When any file so
designated is converted to a hard copy or static image for any purpose, the
document or image shall bear on each page a protective legend as described in
6.a. and 6.b. above. If a native file containing Confidential Information is used
during a deposition, meet and confer, trial, or is otherwise disclosed post-
production, the party introducing, referencing, or submitting the native file must
append the the file’s name (immediately following its Bates identifier) the
following protective legend: “CONFIDENTIAL
SUBJ TO PROTECTIVE ORDER IN CA USE NO. 2014-C VT- 00]] 62-D];
Noemi Rodriguez and Rant Rodriguez vs. State Form Lloyds and Feizpe Farias In
th
the District Court of Webb County, Texas, 49 Judicial District if such legend
.. .
Page 4
does not already appear in the file name. Any party using a native file containing
Confidential Information in a deposition, hearing, or at trial must indicate the
designation on the record so that it is reflected in the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may place on any
hard-copy documents that are subject to this Protective Order watermarks or seals
to indicate the document is subject to a Protective Order and is produced under the
specific cause number.
7. Any party who inadvertently discloses Confidential Information during the discovery
process shall, immediately upon discovery of the inadvertent disclosure, give notice in
writing to the party or parties in possession of such information that the information is
designated as “Confidential” and shall request its immediate return. After receipt of such
notice, the parties shall treat the information so designated as Confidential Information
under the terms of this Order, unless released of this duty by fUrther order of this Court.
Additionally, any party who inadvertently discloses Confidential Information during the
discovery process shall, immediately upon discovery of the inadvertent disclosure, give
notice in writing to the party which produced and provided this information, the names and
addresses of the persons to whom it was disclosed and the date of the disclosure together
with a copy of the notice by which the inadvertently disclosing party requested the
immediate return of the documents.
8. Information previously produced during this litigation and not already marked as
Confidential Information shall be retroactively designated within thirty (30) days of entry
of this Order by providing written notice to the receiving parties of the Bates identifier or
other identifying characteristics for the Confidential Information.
Page 5
a. Within thirty (30) days of receipt of such notice, or such other time as may be
agreed upon by the parties, any parties receiving such notice shall return to the
designating party all undesignated copies of such information in their custody and
possession, in exchange for the production of properly designated information, or
alternatively (upon the agreement of the parties) shall (i) affix the legend to all
copies of such designated infonnation in the party’s possession, custody, or control
consistent with the terms of this Protective Order, and/or (ii) with respect to ESI,
take such reasonable steps as will reliably identify the item(s) as having been
designated as Confidential thformation.
h. Infonnation that is unintentionally or inadvertently produced without being
designated as Confidential Information may be retroactively designated by the
producing party in the maimer described in paragraph 7.a. above, If a retroactive
designation is provided to the receiving party in accordance with Texas Rule of
Civil Procedure 193.3(d) the receiving party must (i) make no further disclosure of
such designated information except as allowed under this Order; (ii) take reasonable
steps to notify any persons who were provided copies of such designated
information of the terms of this Order; and (iii) take reasonable steps to reclaim any
such designated information in the possession of any person not permitted access to
such infonnation under the terms of this Order. No party shall be deemed to have
violated this Order for any disclosures made prior to notification of any subsequent
designation.
9. Any party may request the party designating infonnation as “Confidential” to consent to re
designate confidential information as not confidential, which request shall not be rejected
Page 6
absent a good-faith determination by the designating party that the Confidential
Information is entitled to protection.
10. Deposition testimony is Confidential Information under the terms of this Order only if
counsel for a party advises the court reporter and opposing counsel of that designation at
the deposition, or by vTiten designation to all parties and the court reporter within thirty
(30) business days afler receiving the deposition transcript. All deposition transcripts shall
be considered confidential until thirty (30) days following the receipt of the deposition
transcript. The court reporter shall note on the record the designation of said information as
Confidential and shall separately transcribe those portions of the testimony and mark the
face of such portion of the transcript as “Confidential.” The parties may use Confidential
Information during any deposition, provided the witness is apprised of the terms of this
Order and executes the acknowledgment attached hereto as Exhibit “A.” The parties may
use Confidential Information during a deposition only if the room is first cleared of all
persons except the court reporter, the witness being deposed, counsel for the parties and
any expert entitled to attend, and only if said witness executes the acknowledgement
attached as Exhibit “A.”
11. In the case of interrogatory answers, responses to request for production, and responses to
requests for admissions, the designation of Confidential Information will be made by
means of a statement in the answers or responses specifying that the answers or responses
or specific parts thereof are designated as Confidential Information. A producing party
shall place the following legend on each page of the interrogatory answers or responses to
requests for admission: “Contains Confidential Information.”
12. Confidential Information disclosed during a meet and confer or otherwise exchanged in
Page 7
informal discovery, shall be protected pursuant to this Order if counsel for the disclosing
party advises the receiving party the information is Confidential Information, if the
Confidential Information disclosed during a meet and confer or otherwise exchanged in
informal discovery is in the form of hard-copy documents, static images, or native files,
that information shall he designated as Confidential Infonuation pursuant to paragraphs 6
a., b., and/or c. depending on the format of the materials introduced.
13. At any time after the delivery of Confidential Documents, and after making a good-faith
effort to resolve any disputes regarding whether any designated materials constitute
Confidential Information, counsel of the party or parties receiving the Confidential
Documents may challenge the Confidential designation of all or any portion thereof by
providing written notice of the challenge to counsel for the party disclosing or producing
the Confidential Documents. The party or parties disclosing or producing the Confidential
Documents shall have twenty (20) days from the date of receipt of a writt en challenge to
file a motion for specific protection with regard to any Confidential Documents in dispute.
if the party or parties producing the Confidential Documents does not timely file a motion
for specific protection, then the Confidential Documents in dispute shall no longer be
subject to confidential treatment as provided in this Order.
14. if a timely motion for specific protection is filed, any disputed document will remain
confidential until a contrary determination is made by the Court and all such documents,
infonnation or testimony shall continue to he treated as Confidential Infonnation until this
Court makes a contrary decision regarding the status of the documents, information or
testimony. At any hearing to resolve a challenge of a Confidential designation, the party
designating the information as “Confidential” shall have the burden to establish that party’s
Page 8
right to protection as if this Order did not exist. A party’s failure to challenge the
designation of documents, information, or testimony as “Confidential” information does
not constitute an admission that the document, information or testimony is, in fact,
sensitive, confidential, or proprietary. No party waives its right to contend at trial or hearing
that such document, information or testimony is not sensitive, confidential, privileged or
proprietary, provided the party provides notice of intention to do so at least twenty (20)
days before such trial or hearing.
15. Any papers filed with the Court in this action that make reference to Confidential
Information, or contain information derived therefrom, shall be considered Confidential
Information and shall be governed by the terms of this Order. These papers shall be filed
under seal and shall remain sealed with the District Clerk’s Office so long as the materials
retain their stratus as Confidential Information.
16. Pursuant to the agreement of the parties, no disclosure, production, or exchange of
infonnation in this case shall constitute a waiver of any applicable attorney-client privilege
or of any applicable work product protection in this or any other federal or state
proceeding. This Protective Order applies to any information disclosed, exchanged,
produced, or discussed — whether intentionally or inadvertently — among the parties, their
counsel and/or any agents (such as vendors and experts) in the course of this litigation.
Upon learning of a production of privileged or work product protected information, the
producing party shall within ten (10) days give all counsel of record notice of the
production pursuant to Texas Rule of Civil Procedure 193.3(d). The receiving party must
promptly return, sequester or destroy the produced information and all copies and destroy
any notes that reproduce, copy, or otherwise disclose the substance of the privileged or
Page 9
_____
work product protected information.
17. Further, production pursuant to this Protective Order shall not be deemed a waiver of
a. Any party’s right to object to any discovery request on any ground.
b. Any party’s right to seek an order compelling discovery with respect to any
discovery request.
c. Any party’s use and review of its own Confidential Information in its sole and
complete discretion.
d. The status of any material as a trade secret.
18. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
This Order shall remain in effect unless or until amended, altered, modified, or
vacated by the Court or by the written agreement of all parties to this action filed with
the Court, pursuant to Rule 11 of the Texas Rules of Civil Procedure.
IT IS SO ORDERED this day of ,2015.
JUDGE PRESIDING
Page 10
___________________________, ___________________________,
EXHIBIT “A”
CAUSE NO. 2014-CVF-001969-D4
LUIS MACHADO AND ROSA A. § IN THE DISTRICT COURT OF
MACHADO, §
§
Plaintiffs, §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
GILBERT SANTOS, §
§
Defendants. § 406TH JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
I. of in order to be provided access to
information designated as “Confidential” under the Protective Order entered in the 49th Judicial
District Court of Webb County, Texas (the “Court”) in CAUSE NO. 20]4-CTT-001162-D]:
Noenit Rodriguez and Roiti Rodriguez vs. Stote Form Lloyds ond Felipe Far/os In the District
Court of Webb County. Texas, 49 1h
Judicial District (the “Lawsuit”), represent and agree as
follows:
1. I have been provided with a copy of the Protective Order entered by the Court in the
Lawsuit, I have reviewed said copy and I am familiar with its terms.
2. With regard to any and all “Confidential” information to which I am given access in
connection with the Lawsuit, I agree to he bound by the provisions of the Protective
Order.
3. I consent to the exercise of jurisdiction over me by the Court with respect to the
Protective Order.
4. I agree that copies of this undertaking will he sent to counsel of record for all parties in
the Lawsuit.
DATED: SIGNATURE:
By
H&S 201 4-CVF-0O1 1 62-Di
LAW FIRM
VAN f-IuSEMAN t *
HU S EMAN & STEWART fBoard Cendied-Civil Thai Law
ERIC STiiwART Nieard CeOrlied-Persona Injury Thai Law
A Professional Limited J.. ialjrkly Company
TIFFANY L. DEBOLT Texas Board of Legni Speckairzuuon
615 N. Upper Broadway, Suite 2000
bLuE [)ELLINOIzR MARTI
Corpus Christi, Texas 78401-0781
Telephone (361) 883-3563 Fax (361) 883-0210
August 19, 2014
VIA CM/RRR
Mr. J. Steve Mostyn
The Mostyn Law Firm
381 0 West Alabania Street
Houston, Texas 77027
RE: No. 2O14CVFOO1 l62-D1; Raul Rodriguez and Noemi Rodriguez v, State Farm
Lloyds and Felipe Farias; In the 49th Judicial District Court, Webb County, Texas
File No. 120093-7939-TD
Dear Mr. Mostyn:
Enclosed please find a CD containing the following:
1. Defendant’s, State Farm Lloyds, Responses and Objections to Plaintiffs’ First Set of
Interro gatories;
2. Defendant’s, State Farm Lloyds, Responses and Objections to Plaintiffs’ Requests for
Production;
3, Defendant’s, State Farm Lloyds, Responses to Plaintiffs’ Requests for Disclosure;
4. Defendant’s, Felipe Farias, Responses and Objections to Plaintiffs’ First Set of
Interrogatories;
5. Defendant’s, Felipe Fa.rias, Responses and Objections to Plaintiffs’ Requests for
Production;
6. Defendant’s, Felipe Farias, R.esponses to Plaintiffs’ Requests for Disclosure;
7. Redacted Claim File;
8. Business Records Affidavit; and,
9. Privilege Log.
truly yours,
I Tiffany DeBolt
TD:sarn
Enclosure
_
NO. 2OI4CVFOOJ 162-DI
RAUL RODRIGUEZ AND NOEMI § IN THE DISTRICT COURT
RODRIGUEZ, §
Plaintiffs §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND FELIPE
FARIAS, §
Defendants § 49TH JUDICIAL DISTRICT
DEFENDANT’S, FELIPE FARIAS, RESPONSES TO
PLAINTIFF’S REQUESTS FOR DISCLOSURE
TO: RAUL RODRIGUEZ AND NOEMI RODRIGUEZ, by and through their attorneys of
record, Mr. J. Steve Mostyn, 3810 West Alabama Street, Houston, Texas 77027.
Comes now FELIPE FARIAS, Defendant herein, and files this its Responses to
Plaintiff’s Requests for Disclosure.
Respectfully submitted,
HUSEMAN & STEWART
615 N. Upper Broadway, Suite 2000
Corpus Christi, TX 78401-0781
(361) 883-3563; (361) 883-0210 (Fax)
iY C-f-
VAN HUSEMAN
State Bar No. 1032350
ERIC STE WART
State Bar No. 24058133
TIFFANY DEBOLT
State Bar No. 24074118
Attorneys for Defendant Felipe Farias
ESTHER DEGd3LA
9
By
______ ____________,2014,
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing was this day of
served on the following:
VIA CM/RRR
Mr. J. Steve Mostyn
3810 West Alabama Street
Houston, TX 77027
TIFFANY eBOLT
DEFENDANT’S, FELIPE FARIAS, RESPONSES TO
PLAINTIFF’S REQUESTS FOR DISCLOSURE
(a) i’he correct names of the parties to the lawsuit.
RESPONSE: Defendant believes that Plaintiff’s petition properly sets forth the
correct names of the parties.
(b) The name, address, and telephone number of any potential parties.
RESPONSE: Defendant is unaware of any possible responsible third parties at this
time, but reserves the right to supplement this response.
(c) The legal theories and, in general, the factual bases of the responding party’s claims or
defenses (the responding party need not marshal all evidence that may be offered at trial).
RESPONSE: Defendant generally denies Plaintiffs allegations. Please also see
Defendant’s live pleadings.
(d) l’he amount and any method of calculating economic damages.
RESPONSE: Defendant is not seeking economic damages. Plaintiffs recovery, if
any, is limited by the terms of the insurance contract.
(e) The name, address, and telephone number of persons having knowledge of relevant facts,
and a brief statement of each identified persons connection with the case.
RESPONSE: See attached Exhibit “A”. Defendant will supplement as more
information becomes available.
(f) For any testifying expert:
(1) the expert’s name, address, and telephone number;
(2) the subject matter on which the expert will testify;
(3) the general substance of the expert’s mental impressions and opinions and a brief
summary of the basis for them, or if the expert is not retained by, employed by, or
otherwise subject to the control of the responding party, documents reflecting
such information;
(4) if the expert is retained by, employed by, or otherwise subject to the control of the
responding party:
(A) all documents, tangible things, reports, models, or data compilations that
have been provided to, reviewed by, or prepared by or for the expert in
anticipation of the expert’s testimony: and
(B) the expert’s current resume and bibliography.
RESPONSE: None at this time; Defendant will supplement.
Defendant reserves the right to call any and all experts designed by Plaintiff herein.
(g) Any discoverable indemnity and insuring agreements.
RESPONSE: None.
(h) Any discoverable settlement agreements.
RESPONSE: None.
(i) Any discoverable witness statements,
RESPONSE: None in Defendant’s possession.
(j) All medical records and bills that are reasonably related to the injuries and damages
asserted or, in lieu thereof, an authorization permitting the disclosure of such medical
records and hills.
RESPONSE: Not applicable.
(k) All medical records and bills obtained by the responding party by virtue of an
authorization furnished by the requesting party.
RESPONSE: Not applicable.
(I) the name, address, and telephone number of any person who may be designated as a
responsible third party.
RESPONSE: Defendant is unaware of any possible third parties at this time, but
reserves the right to supplement this response.
EXHIBIT A
WITNESS LIST
Name Address Telephone Connection to the Case
Raul Rodriguez c/o J. Steve 713-861-6616 Plaintiff
Mostyn, 3810
West Alabama
Street,
Houston,
Texas 77027
Noemi Rodriguez c/o J. Steve 713-861-6616 Plaintiff
Mostyn, 3810
West Alabama
Street,
Houston,
Texas 77027
State Farm Lloyds c/o Van 361-883-3563 Defendant
Huseman and
Tiffany
DeBolt,
Felipe Farias Huseman &
Stewart, PLLC,
615 N. Upper
Broadway,
Suite 2000,
Corpus Christi,
TX 78401
Felipe Farias c/o Van 361-883-3563 Defendant
Huseman and
Tiffany
DeBolt,
Huseman &
Stewart, PLLC,
615 N. Upper
Broadway,
Suite 2000,
Corpus Christi,
78401
West 713-861-6616 Plaintiff’s counsel
Van Huseman ‘s counsel
Tiffany DeBolt
py of oraHcert.
4
the
Cou
% ofjtctNurtan
By
LI
0’
TX78401 I
_____ ____
NO. 2O14CVFOO1 162-Di
RAUL RODRIGUEZ AND NOEMI § IN THE DISTRICT COURT
RODRIGUEZ, §
Plaintiffs §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND FELIPE §
FARIAS, §
Defendants § 49TH JUDICIAL DISTRICT
DEFENDANT’S, FELIPE FARIAS, RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ REQUESTS FOR PRODUCTION
TO: Raul and Noemi Rodriguez, by and through their attorney of record, Mr. J. Steve
Mostyn, 3810 West Alabama Street, Houston, Texas 77027.
Comes now FELIPE FARIAS, Defendant herein, and files this its Responses and
Objections to Plaintiffs’ First Set of Interrogatories.
Respectfully submitted,
HUSEMAN & STEWART
615 N. Upper Broadway, Suite 2000
Corpus Christi, TX 78401-078 1
(361) 883-3563; (361) 883-0210 (Fax)
VAN
State Bar No. 1032350
ERIC STEWART
State Bar No. 24058133
TIFFANY DEBOLT
State Bar No. 24074118
Attorneys for Defendant Felipe Farias
the_____
ESTHER DE LA’
By
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing was this I
I 2014,
/ day of
served on the following: a
Via CM-RRR
The Mostyn Law Firm
Mr. J. Steve Mostyn
3810 West Alabama Street
Houston, TX 77027
’
6
T1FFArr
FELIPE FARIAS’ OBJECTIONS TO ES! PRODUCTION PROTOCOL
1. Defendant objects to the request for production in native format to the extent responsive
documents are not reasonably available in native format to Defendant in the ordinary
course of business. Defendant further objects pursuant to Tex. R. Civ. P. 196.4, in that it
would take unreasonable and extraordinary efforts to produce such documents in the form
requested. Notwithstanding this objection, Defendant agrees to produce in native format
pursuant to Tex. R. Civ, P. 196.4 to the extent responsive documents are reasonably
available in native format in the ordinary course of business. Documents that contain
redactions will not be produced in native format. Please also refer to objection number 6.
2. Defendant objects to Plaintiffs’ description of near native file types on the grounds that it
does not offer an alternative to native format. Defendant therefore incorporates by
reference the objection to protocol provision number 2 regarding the production of native
format above. (See paragraph 2.) Defendant further objects pursuant to Tex, R. Civ. P.
196.4, it is not required to produce ESI in near-native formats if it would take
unreasonable and extraordinary efforts to produce such documents in the form requested.
3. Defendant objects to Plaintiffs’ examples of near-native forms on the grounds they do not
represent an alternative to a native format. For those examples that represent native
forms sought, Defendant objects to the extent responsive documents are not reasonably
available in native format to Defendant in the ordinary course of business. Defendant
further objects pursuant to Tex. R. Civ. P. 196.4, on that it would take unreasonable and
extraordinary efforts to produce such documents in the form requested. Notwithstanding
this objection, Defendant agrees to produce in native format pursuant to Tex. R. Civ. P.
196.4 to the extent responsive documents are reasonably available in native format in the
ordinary course of business.
4. Defendant objects to this request because it is overboard and unduly burdensome.
Defendant further objects pursuant to Tex. R. Civ, P. 196.4, in that it would take
unreasonable and extraordinary efforts to produce such documents in the form requested.
Notwithstanding these objections, Defendant will produce database reports generated in
the ordinary course of business in the form they are normally used. Defendant agrees to
meet and confer prior to producing from databases as necessary.
5. Defendant objects to the production of information items in color to the extent it cannot,
through reasonable efforts, produce such items in the requested format pursuant to Tex.
R. Civ. P. 196.4. Defendant objects to the production request to the extent it requests
full extraction and OCR for redacted documents on the grounds it seeks attorney-client or
work product privileged materials. Notwithstanding these objections, Defendant notes
that any documents produced natively will retain any color existing in the original
document. Defendant agrees to extract the non-redacted content of each document by
optical character recognition (OCR) or other suitable method to a searchable text file
produced with the corresponding page image(s) or embedded within the image file.
Defendant further objects to Plaintiffs’ production request insofar as it directs Defendant
to undertake efforts that exceed the requirements of Tex. R. Civ. P. 193.3. Defendant
will withhold privileged material or information and describe the same in accordance
with the Texas Rules of Civil Procedure.
6. Defendant objects to Plaintiffs’ demand that Adobe Acrobat be used for redactions on the
grounds that using Adobe Acrobat will require unreasonable and extraordinary efforts
pursuant to Tex. R. Civ. P. 196.4.
7. Defendant objects to Plaintiffs’ demand for deduplication by MD5 hash value on the
grounds that it requires Defendant to undertake unreasonable efforts pursuant to Tex. R.
Civ. P. 196.4. Defendant will provide hash values but reserves the right to use an
alternative to MD5. With respect to the categories of information requested in the load
file, Defendant will produce such information to the extent the field values are available.
8. Defendant objects to Plaintiffs’ demand Defendant produce ES! on the medium requiring
the least number of deliverables in that it purports to impose obligations greater than
those set forth in the Texas Rule of Civil Procedure. Defendant further objects to
Plaintiffs’ request that Defendant organize productions by custodian because it would
require Defendant to undertake unreasonable and extraordinary efforts insofar as ESI is
not organized by custodian in Defendant’s ordinary course of business. Additionally,
Defendant objects to Plaintiffs’ request that all documents from an individual custodian
be delivered in a single load file on the grounds it is unduly burdensome and will cause
unnecessary delay in the production of documents in contravention of Tex. R. Civ. P. 1.
9. Defendant objects to this request with respect to claim information on the grounds that it
requires Defendant to undertake unreasonable and extraordinary efforts pursuant to Tex.
R. Civ. P. 196.4.
10. Defendant objects to Plaintiffs’ demand that the load file provide MD5 hash values on the
grounds that it requires Defendant to undertake unreasonable efforts pursuant to Tex. R.
Civ. P. 196.4. Defendant will provide hash values but reserves the right to use an
alternative to MD5. With respect to the categories of information requested in the load
file, Defendant will produce such information to the extent the field values are available.
OBJECTIONS TO DEFINITIONS
1. Defendant objects to Plaintiffs’ definition of the term “Document” in that the following
terms or phrases are vague and ambiguous: “visual” and “information items.” Defendant
notes that all “textual” documents are also “visual” inasmuch as they can be seen and
therefore it is unclear what is meant by the separate category of “visual” items. In
responding to this discovery, Defendant assumes the term “visual” is meant to refer to
graphic images. Similarly, the term “information items” is vague, overly broad, unduly
burdensome, and beyond the permissible scope of discovery under the Tex. R. Civ. P.
because many items of information may be shared by oral communication, and therefore
are not “things” subject to discovery under Tex. R. Civ. P. 192.3(b); or may be ephemeral
information, such as temporary computer files, and therefore preservation and production
of such information would be disproportionate to the scope of the matter pursuant to Tex.
R. Civ. P. 192.4. In responding to discovery, Defendant assumes that “information
items” is meant to refer to the documents and electronic information discoverable
pursuant to Tex. R. Civ. P. 192.3(b) and 196.1. Defendant further objects to Plaintiffs’
use of the term “Document” to the extent it seeks to require Defendant to record andlor
produce records and information that are not ordinarily captured, andlor are overwritten
in the ordinary course of operating State Farm’s computing systems making the definition
overly broad, unduly burdensome, not reasonably calculated to lead to the discovery of
admissible evidence, and beyond the scope of permissible discovery. Defendant further
objects to the extent the definition implies there is an obligation to produce information
subject to discovery under Tex. R. Civ. P. 196 in more than one form or in a manner that
is different than the forms in which Defendant has already agreed to produce, or that the
same must be produced in native format. Native format may not be reasonably available
to Defendant in the ordinary course of business. Finally, Defendant objects to the
definition of “Document” to the extent it would require the production or disclosure of
information protected from discovery by the attorney-client privilege and/or work
product doctrine. Defendant will produce responsive, non-privileged documents and
electronic information discoverable pursuant to Tex. R. Civ. P. 192.3(b) and 196.1.
2. Defendant objects to Plaintiffs’ definition of the term “Person” and consequently
“Handle,” “handled,” “handling” and/or “worked on” by “any person” to the extent that it
purports to impose obligations greater than those set forth in Tex. R. Civ. P. 192.3.
Defendant further objects to the extent the definitions include its attorneys or to the extent
Plaintiffs seek information protected from discovery by the attorney-client privilege
and/or work product protection.
3. Defendant objects to Plaintiffs’ definition of the term “Describe” in that it is ambiguous
whether the term “document” therein is meant to be a general term, or if it is referring to
“Document” as defined herein. Assuming that the term “document” is meant to include
electronically stored information discoverable under Tex. R. Civ. P. 196, Defendant
objects to the definition of “Describe” because parts a. through e. are vague and
ambiguous and it is not clear what specific information plaintiffs are seeking (e.g., a
Word document may be titled “ABC.docx” in the Windows file title and have a different
title or heading in ihe document’s text). Defendant further objects to the definition of
“Describe” to the extent that it seeks information about “Documents” that is overly broad,
unduly burdensome, not reasonably calculated to lead to the discovery of admissible
evidence, and beyond the scope of permissible discovery.
DEFENDANT FELIPE FARIAS’ RESPONSES AND OBJECTIONS
TO PLAINTIFFS’ REQUESTS FOR PRODUCTION
REQUEST FOR PRODUCTION NO. 1. All documents related to Plaintiffs, the Property,
the Policy and/or the claim made the basis of this Lawsuit.
RESPONSE:
Defendant objects to this request as multifarious, overly broad, vague, ambiguous, and not
reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects to
this request as being improperly directed to this Defendant.
State Farm does not maintain a physical file folder with respect to each claim. Information
regarding the claim is stored primarily in the Enterprise Claim System (“ECS”), a proprietary
web-based system used by State Farm claims associates to record electronic claim information.
Notwithstanding any objections, this Defendant has no such documents in his possession,
custody or control.
REQUEST FOR PRODUCTION NO. 2. All licenses or certifications that are identified in
response to Interrogatory Number 3.
RESPONSE:
This adjuster’s Texas licensing status and number is publically available without charge and can
be found on the TDI website at w.tdi.texas.gov; this adjuster’s CE information may be found
on www.sircon.com.
REQUEST FOR PRODUCTION NO. 3. All training documents you have for adjusting hail
and/or windstorm claims. This request is limited to the past 2 years.
RESPONSE:
Materials on which individuals were trained prior to the date of loss, and that were obsolete on
the date of loss, are neither material nor relevant to the matters at issue in this case. This request
seeks information that is neither relevant nor reasonably calculated to lead to the discovery of
admissible evidence.
This Defendant objects in that the request may cover materials that are confidential, proprietary
business information and/or trade secret. In addition, due to the overly broad nature of this
request, it is also a potential invasion of the attorney-client or work product privileges.
REQUEST FOR PRODUCTION NO. 4. All applications you submitted (or that were
submitted on your behalf) for purposes of obtaining a license to adjust claims in the State of
Texas that were in effect at the time of the Webb County hail claims occurring on or about June
7, 2013 and/or June 14, 2013.
RESPONSE:
To the extent that such documents are in Defendant care, custody, control, he will supplement.
REQUEST FOR PRODUCTION NO. 5. All resumes for the last five (5) years.
RESPONSE:
This question seeks information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence.
Subject to and without waiving these objections, and to the extent Defendant has a current resume, it
will be produced.
REQUEST FOR PRODUCTION NO. 6. All applications for employment you submitted for
purposes of obtaining employment as an adjuster and/or claims handler in the State of Texas.
This request is limited to the five (5) years preceding the Webb County hail storm occurring on
oraboutJune 7,2013 andlorJune 14,2013.
RESPONSE:
Defendant objects to the question as it is not relevant, nor is it reasonably calculated to lead to
the discovery of admissible evidence. The question calls for personal and confidential
information and invades the privacy of this Defendant. The question calls for information that
surpasses the issues in this case.
REQUEST FOR PRODUCTION NO. 7. All documents you relied upon in the adjustment of
the claim made the basis of this Lawsuit.
RESPONSE:
Defendant objects to the Request to the extent that it seeks confidential, proprietary business
information and trade secrets that are the sole and exclusive property of the insurance company
that this Defendant has no legal authority to produce. Further, due to the overly broad nature of
this Request, it is also a potential invasion of the attorney-client privilege and the work product
privilege. Moreover, the Request is unduly burdensome and seeks information that is neither
relevant nor reasonably calculated to lead to the discovery of admissible evidence. Subject to and
without waiving the foregoing objections, this Defendant relied on the contract of insurance,
electronic information regarding the claim, and relevant claims handling procedures for claims
alleged to have arisen from the weather event that occurred on the date of loss.
Additionally, subject to and without waiving the foregoing objections, for information reflecting
the application of claims procedures to Plaintiffs’ claim, see the records produced by State Farm
from State Farms Enterprise Claim System relative to Plaintiffs’ claim.
REQUEST FOR PRODUCTION NO. 8. To the extent you made a determination or
recommendation regarding depreciation, all documents relating to the application of depreciation
on a homeowners property claim in the State of Texas for the past two (2) years.
RESPONSE:
Defendant otjects to this request as multifarious, overly broad, vague, ambiguous, and not
reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects to
this request as being improperly directed to this Defendant. Defendant further objects to this
request to the extent it purports to require Defendant to marshal all of his evidence or state all his
legal or factual assertions in answering it.
Notwithstanding any objections, this Defendant has no such documents in his possession,
custody or control.
REQUEST FOR PRODUCTION NO. 9. To the extent you made a determination or
recommendation regarding overhead and profit, all documents relating to the application of
overhead and profit on a homeowners property claim in the State of Texas for the past two (2)
years.
RESPONSE:
Defendant objects to this request as multifarious, overly broad, vague, ambiguous, and not
reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects to
this request as being improperly directed to this Defendant. Defendant further objects to this
request to the extent it purports to require Defendant to marshal all of his evidence or state all his
legal or factual assertions in answering it.
Notwithstanding any objections, this Defendant has no such information or documents in his
possession, custody or control.
REQUEST FOR PRODUCTION NO. 10. All documents or items in your possession related
to the claim made the basis of this Lawsuit that you did not submit to the insurance company
andlor adjusting company assigned to this claim.
RESPONSE:
This Defendant has no such documents in his possession, custody or control. Will supplement if
responsive documents become available.
REQUEST FOR PRODUCTION NO. 11. All documents meant to instruct, advise, or guide
the handling or adjusting [sic] hail and/or windstorm claims in the State of Texas for the last 2
years.
RESPONSE:
Materials on which individuals were trained prior to the date of loss, and that were obsolete on
the date of loss, are neither material nor relevant to the matters at issue in this case. This request
seeks information that is neither relevant nor reasonably calculated to lead to the discovery of
admissible evidence.
This Defendant objects in that the request may cover materials that are confidential, proprietary
business information and/or trade secret. In addition, due to the overly broad nature of this
request, it is also a potential invasion of the attorney-client or work product privileges.
REQUEST FOR PRODUCTION NO. 12. All training manuals in effect at the time of
Plaintiffs’ claim used for software programs utilized in the claim made the basis of this Lawsuit.
RESPONSE:
Materials on which individuals were trained prior to the date of loss, and that were obsolete on
the date of loss, arc neither material nor relevant to the matters at issue in this case. This request
seeks information that is neither relevant nor reasonably calculated to lead to the discovery of
admissible evidence.
Defendant objects in that the request may cover materials that are confidential, proprietary
business information and/or trade secret. In addition, due to the overly broad nature of this
request, it is also a potential invasion of the attorney-client or work product privileges.
REQUEST FOR PRODUCTION NO. 13. All documents relating to any performance
reviews or evaluations by the carrier of the underlying claim, whether formal or informal,
regarding your handling of claims arising out of the Webb County hail storm occurring on or
about June 7, 2013 and/or June 14, 2013.
RESPONSE:
Defendant objects to this request as irrelevant, multifarious, overly broad, vague, ambiguous, and
not reasonably calculated to lead to the discovery of admissible evidence.
The question calls for confidential and proprietary information belonging to State Farm and
invades the privacy of this Defendant. The question is overly broad in scope and calls for
information that surpasses the issues in this case.
REQUEST FOR PRODUCTION NO. 14. All documents relating to any Texas Department
of Insurance complaints made against you by an insured related to claims arising out of the
Webb County hail storm occurring on or about June 7, 2013 and/or June 14, 2013.
RESPONSE:
Defendant objects to this Request on the grounds that it is overly broad and harassing,
constituting nothing more than a “fishing expedition,” in violation of the letter and spirit of
discovery law in the State of Texas. What may or may not have occurred with respect to another
claim will neither prove nor disprove the existence of any alleged mishandling of this claim.
Further, information responsive to this request may contain confidential non-public personal
information of insureds not party to this suit, and is equally and publicly available to Plaintiffs.
REQUEST FOR PRODUCTION NO. 15. All contracts, indemnity agreements, andlor
confidentiality agreements between you and the adjusting company and/or insurance company in
effect during the handling of claims arising out of the Webb County hail storm occurring on or
about June 7, 2013 and/or June 14, 2013.
RESPONSE:
Defendant objects to this request as multifarious, overly broad, vague, ambiguous, and not
reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects to
this request as being improperly directed to this Defendant.
This Defendant objects to this request as seeking information that is neither relevant nor
reasonably calculated to lead to the discovery of admissible evidence. Further, this request calls
for confidential, proprietary and/or trade secret information.
REQUEST FOR PRODUCTION NO. 16. All price lists used by you in handling claims
arising out of the Webb County hail storm occurring on or about June 7, 2013 and/or June 14,
2013. To the extent the pricelist is an unmodified pricelist from a third party, you can reference
the vendor and version of the pricelist with a stipulation that it is unmodified.
RESPONSE:
Defendant objects to this request as multifarious, overly broad, vague, ambiguous, and not
reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects to
this request as being improperly directed to this Defendant.
This Defendant objects to this Request, as it is vague, overly broad in scope and time. As the
Defendant can understand this Request, it appears to be seeking confidential, proprietary
business information and trade secrets that are the sole and exclusive property of State Farm that
this Defendant has no legal authority to produce. As presently worded, the Request is not
relevant, nor is it reasonably calculated to lead to the discovery of admissible evidence.
REQUEST FOR PRODUCTION NO. 17. All weather reports regarding wind andlor hail
relied upon by you in handling claims arising out of the Webb County hail storm occurring on or
about June 7, 2013 andJor June 14, 2013.
RESPONSE:
Defendant objects to this request as multifarious, overly broad, vague, ambiguous, and not
reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects to
this request as being improperly directed to this Defendant.
REQUEST FOR PRODUCTION NO. 18. All correspondence to or from the adjusting
company andlor the insurance company that issued the policy regarding modifying/modifications
to the unit price cost and the price list you used in handling claims ar4sing out of the Webb
County hail storm occurring on or about June 7, 2013 and/or June 14, 2013.
RESPONSE:
Defendant objects to this request as multifarious, overly broad, vague, ambiguous, and not
reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects to
this request as being improperly directed to this Defendant.
This Defendant objects to this Request, as it is vague, overly broad in scope and time. As the
Defendant can understand this Request, it appears to be seeking confidential, proprietary
business information and trade secrets that are the sole and exclusive property of State Farm that
this Defendant has no legal authority to produce. As presently worded, the Request is not
relevant, nor is it reasonably calculated to lead to the discovery of admissible evidence.
NO. 2OI4CVFOOI 162-DI
RAUL RODRIGUEZ AND NOEMI § IN THE DISTRICT COURT
RODRIGUEZ, §
Plaintiffs §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND FELIPE §
FARIAS, §
Defendants § 49TH JUDICIAL DISTRICT
DEFENDANT’S, FELIPE FARIAS, RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ FIRST SET OF INTERROGATORIES
TO: Raul and Noemi Rodriguez, by and through their attorney of record, Mr. J. Steve
Mostyn, 3810 West Alabama Street, Houston, Texas 77027.
Comes now FELIPE FARIAS. Defendant herein, and files this its Responses and
Objections to Plaintiffs’ First Set of Interrogatories.
Respectfully submitted,
HUSEMAN & STEWART
615 N. Upper Broadway, Suite 2000
Corpus Christi, TX 78401-0781
(361) 883-3563; (361) 883-0210 (Fax)
VAN HUSEMAN
State Bar No. 1032350
ERIC STEWART
State Bar No. 24058133
TIFFANY DEBOLT
State Bar No. 24074118
Attorneys for Defendant Felipe Farias
yOfaI P ce
______
CERTIFICATE OF SERVICE
A true and correct copy of the thregoing was this day of(’< 2014,
seed on the following:
Via CM-RRR
The Mostyn Law Firm
Mr. J. Steve Mostyn
3810 West Alabama Street
Houston, TX 77027
TIFFANY DEBOLT
FELIPE FARIAS’ OBJECTIONS TO ESJ PRODUCTION PROTOCOL
1. Defendant objects to the request for production in native format to the extent responsive
documents are not reasonably available in native format to Defendant in the ordinary
course of business. Defendant further objects pursuant to Tex. R. Civ, P. 196.4, in that it
would take unreasonable and extraordinary efforts to produce such documents in the form
requested. Notwithstanding this objection, Defendant agrees to produce in native format
pursuant to Tex. R. Civ. P. 196.4 to the extent responsive documents are reasonably
available in native format in the ordinary course of business. Documents that contain
redactions will not be produced in native format. Please also refer to objection number 6.
2. Defendant objects to Plaintiffs’ description of near native file types on the grounds that it
does not offer an alternative to native format. Defendant therefore incorporates by
reference the objection to protocol provision number 2 regarding the production of native
format above. (See paragraph 2.) Defendant further objects pursuant to Tex. R. Civ, P.
196.4, it is not required to produce EST in near-native formats if it would take
unreasonable and extraordinary efforts to produce such documents in the form requested.
3. Defendant objects to Plaintiffs’ examples of near-native forms on the grounds they do not
represent an alternative to a native format. For those examples that represent native
forms sought, Defendant objects to the extent responsive documents are not reasonably
available in native format to Defendant in the ordinary course of business. Defendant
further objects pursuant to Tex. R. Civ. P. 196.4, on that it would take unreasonable and
extraordinary efforts to produce such documents in the form requested. Notwithstanding
this objection, Defendant agrees to produce in native format pursuant to Tex. R. Civ. P.
1 96.4 to the extent responsive documents are reasonably available in native format in the
ordinary course of business.
4. Defendant objects to this request because it is overboard and unduly burdensome.
Defendant further objects pursuant to Tex. R. Civ. P. 196.4, in that it would take
unreasonable and extraordinary efforts to produce such documents in the form requested.
Notwithstanding these objections, Defendant will produce database reports generated in
the ordinary course of business in the form they are normally used. Defendant agrees to
meet and confer prior to producing from databases as necessary.
5. Defendant objects to the production of information items in color to the extent it cannot,
through reasonable efforts, produce such items in the requested format pursuant to Tex.
R. Civ. P. 196.4. Defendant objects to the production request to the extent it requests
full extraction and OCR for redacted documents on the grounds it seeks attorney-client or
work product privileged materials. Notwithstanding these objections, Defendant notes
that any documents produced natively will retain any color existing in the original
document. Defendant agrees to extract the non-redacted content of each document by
optical character recognition (OCR) or other suitable method to a searchable text file
produced with the corresponding page image(s) or embedded within the image file.
Defendant further objects to Plaintiffs’ production request insofar as it directs Defendant
to undertake efforts that exceed the requirements of Tex. R. Civ. P. 193.3. Defendant
will withhold privileged material or information and describe the same in accordance
with the Texas Rules of Civil Procedure.
6. Defendant objects to Plaintiffs’ demand that Adobe Acrobat be used for redactions on the
grounds that using Adobe Acrobat will require unreasonable and extraordinary efforts
pursuant to Tex. R. Civ. P. 196.4.
7. Defendant objects to Plaintiffs’ demand for dedup]ication by MD5 hash value on the
grounds that it requires Defendant to undertake unreasonable efforts pursuant to Tex. R.
Civ. P. 196.4. Defendant will provide hash values but reserves the right to use an
alternative to MD5. With respect to the categories of information requested in the load
file, Defendant will produce such information to the extent the field values are available.
8. Defendant objects to Plaintiffs’ demand Defendant produce ESI on the medium requiring
the least number of deliverables in that it purports to impose obligations greater than
those set forth in the Texas Rule of Civil Procedure. Defendant further objects to
Plaintiffs’ request that Defendant organize productions by custodian because it would
require Defendant to undertake unreasonable and extraordinary efforts insofar as ESI is
not organized by custodian in Defendant’s ordinary course of business. Additionally,
Defendant objects to Plaintiffs’ request that all documents from an individual custodian
be delivered in a single load file on the grounds it is unduly burdensome and will cause
unnecessary delay in the production of documents in contravention of Tex. R. Civ. P. 1.
9. Defendant objects to this request with respect to claim information on the grounds that it
requires Defendant to undertake unreasonable and extraordinary efforts pursuant to Tex.
R. Civ. P. 196.4.
10. Defendant objects to Plaintiffs’ demand that the load file provide MD5 hash values on the
grounds that it requires Defendant to undertake unreasonable efforts pursuant to Tex. R.
Civ. P. 196.4. Defendant will provide hash values but reserves the right to use an
alternative to MD5. With respect to the categories of information requested in the load
file, Defendant will produce such information to the extent the field values are available.
OBJECTIONS TO DEFINITIONS
1. Defendant objects to Plaintiffs’ definition of the term “Document” in that the following
terms or phrases are vague and ambiguous: “visual” and “information items.” Defendant
notes that all “textual” documents are also “visual” inasmuch as they can be seen and
therefore it is unclear what is meant by the separate category of “visual” items. In
responding to this discovery, Defendant assumes the term “visual” is meant to refer to
graphic images. Similarly, the term “information items” is vague, overly broad, unduly
burdensome, and beyond the permissible scope of discovery under the Tex. R. Civ, P.
because many items of information may be shared by oral communication, and therefore
are not “things” subject to discovery under Tex. R. Civ. P. 192.3(b); or may be ephemeral
information, such as temporary computer files, and therefore preservation and production
of such information would be disproportionate to the scope of the matter pursuant to Tex.
R. Civ. P. 192.4. In responding to discovery, Defendant assumes that “information
items” is meant to refer to the documents and electronic information discoverable
pursuant to Tex. R. Civ. P. 192.3(b) and 196.1. Defendant further objects to Plaintiffs’
use of the term “Document” to the extent it seeks to require Defendant to record and/or
produce records and information that are not ordinarily captured, and/or are overwritten
in the ordinary course of operating State Farm’s computing systems making the definition
overly broad, unduly burdensome, not reasonably calculated to lead to the discovery of
admissible evidence, and beyond the scope of permissible discovery. Defendant further
objects to the extent the definition implies there is an obligation to produce information
subject to discovery under Tex. R. Civ, P. 196 in more than one form or in a manner that
is different than the forms in which Defendant has already agreed to produce, or that the
same must be produced in native format. Native format may not be reasonably available
to Defendant in the ordinary course of business. Finally, Defendant objects to the
definition of “Document” to the extent it would require the production or disclosure of
information protected from discovery by the attorney-client privilege and/or work
product doctrine. Defendant will produce responsive, non-privileged documents and
electronic information discoverable pursuant to Tex. R. Civ. P. 192.3(b) and 196,1.
2. Defendant objects to Plaintiffs’ definition of the term “Person” and consequently
“Handle,” “handled,” “handling” and/or “worked on” by “any person” to the extent that it
purports to impose obligations greater than those set forth in Tex. R. Civ. P. 192.3.
Defendant further objects to the extent the definitions include its attorneys or to the extent
Plaintiffs seek information protected from discovery by the attorney-client privilege
and/or work product protection.
3. Defendant objects to Plaintiffs’ definition of the term “Describe” in that it is ambiguous
whether the term “document” therein is meant to be a general term, or if it is referring to
“Document” as defined herein. Assuming that the term “document” is meant to include
electronically stored information discoverable under Tex. R. Civ. P. 196, Defendant
objects to the definition of “Describe” because parts a. through e. are vague and
ambiguous and it is not clear what specific information plaintiffs are seeking (e.g., a
Word document may be titled “ABC.docx” in the Windows file title and have a different
title or heading in the document’s text). Defendant further objects to the definition of
“Describe” to the extent that it seeks inlbrmation about “Documents” that is overly broad,
unduly burdensome, not reasonably calculated to lead to the discovery of admissible
evidence, and beyond the scope of permissible discovery.
DEFENDANT FELIPE FARIAS’ RESPONSES AND OBJECTIONS
TO PLAINTIFFS’ FIRST SET OF INTERROGATORIES
INTERROGATORY NO. 1. Identify all email accounts, email addresses, and/or any alias or
code used to identify you and used for any communication relating to your work handling hail
and/or windstorm claims arising out of the Webb County hail storm occurring on or about June
7, 2013 and/or June 14, 2013. This request is limited only to the carrier of the claim that is the
subject of this Lawsuit.
RESPONSE:
This Defendants State Farm email address is feIipe.farias.gbpx()statefarm.com.
INTERROGATORY NO. 2. Identify generally the training or experience you had in adjusting
hail and/or windstorm damage any specific training you had for this storm prior to your handling
of claim made the basis of this Lawsuit.
RESPONSE:
Defendant objects that materials on which individuals were trained prior to the date of loss, and
that were obsolete on the date of loss, are neither material nor relevant to the matters at issue in
this case. This request seeks information that is neither relevant nor reasonably calculated to
lead to the discovery of admissible evidence.
As to State Farm training materials, this Defendant objects in that the request may cover
materials that are confidential, proprietary business information and/or trade secret. In addition,
due to the overly broad nature of this request, it is also a potential invasion of the attorney-client
or work product privileges.
INTERROGATORY NO. 3. Identify any degrees, Texas insurance licenses (unless you
qualified for adjusting claims in Texas on an emergency basis, then list any insurance licenses
you held from other states) or certifications you had at the time you handled the claim made the
basis of this Lawsuit.
RESPONSE:
This adjuster’s Texas licensing status and number is publically available without charge and can
be found on the TDI website at v.tdi.texas.gov; this adjuster’s CE information may be found
on www.sircon.com.
INTERROGATORY NO. 4. Explain how you were compensated and by whom for your work
on claims arising Out of the Webb County hail storm occurring on or about June 7, 2013 and/or
June 7, 2013, stating the amount you were compensated per day, and/or per week and identifying
any bonus or incentive plans. To the extent the produced personnel file includes a compensation
schedule, you may refer to such personnel file.
RESPONSE:
Defendant objects to this request as multifarious, overly broad, vague, ambiguous, and not
reasonably calculated to lead to the discovery of admissible evidence. Defendant also objects to
this request as being improperly directed to this Defendant,
As to State Farm employee and/or managerial compensation/bonus plans, the question calls for
confidential and proprietary information belonging to State Farm and invades the privacy of this
Defendant. The question is overly’ broad in scope and calls for information that surpasses the
issues in this case.
INTERROGATORY NO. 5. State whether you are fluent in Spanish and whether you had any
communication relating to the claim made the basis of this Lawsuit in Spanish. If you are not
fluent in Spanish, state whether you are proficient in Spanish to communicate to adjust a claim.
RESPONSE:
Defendant objects to this request is it is not reasonably calculated to lead to the discovery of
admissible evidence. Subject to this objection, Defendant speaks fluent Spanish.
INTERROGATORY NO. 6. Identify the following dates:
a. The date you first obtained an adjuster license in the State of Texas;
b. The first date you were hired/retained by the insurance company defendant or any
other defendant in this Lawsuit to adjust property damage claims;
c. The date you were first assigned to handle Webb county hail claims occurring on
or about June 7,2013 and/or June 14, 2013;
d. The date you closed your file on the claim made the basis of this Lawsuit; and
e. The last date you worked on any Webb County hail claim occurring on or about
June 7,2013 and/or June 14, 2103.
RESPONSE:
Defendant objects that this request is overly broad, unduly burdensome, and not reasonably
calculated to lead to the discovery of admissible evidence, Subject to these objections, Defendant
has had two licenses. The first license was issued in 1993, but lapsed in 2001. The current
license was issued on July 16, 2012. Defendant handled claims in Laredo for one year starting in
July 2012 until July 2013. Defendant continues to help as needed.
INTERROGATORY NO. 7. Describe in detail each inspection you conducted of the Property
made the basis of this Lawsuit identifying:
a. The name and job title of any person who inspected the Property with you;
b. The date of each inspection;
c. The purpose of each inspection;
d. The length of time of each inspection;
e. The equipment or tools used during each inspection;
f. The areas of the Property inspected (i.e. roof attic, individual rooms, exterior);
and
g. Any documents generated during or as a result of each inspection, including the
persons and/or entities in possession of those documents.
RESPONSE:
Defendant inspected Plaintiffs’ property on June 26, 2013, in response to Plaintiffs’ claim that
they suffered from a leak in the bedroom and kitchen as well as wind damage to their roof.
Complete information from Defendant’s inspection can be found in the documents produced in
State Farm Lloyds’ Response to Plaintiffs’ Requests for Production.
INTERROGATORY NO. 8. Following the inspection(s), did you engage in any additional
communications (e.g. telephone, in person, written communication) with Plaintiffs? If yes,
provide the following information:
a. the date of such communication(s);
b. the manner of such communication(s);
c. the person with whom You communicated;
d. the reason for the communication(s);
e. for any telephonic communication(s), identify who initiated the phone call, and
the telephone number from which you called or on which you received the call;
and
f. the general substance of the communication.
RESPONSE:
On June 27, 2013, Defendant sent Plaintiff Raul Rodriguez a letter informing him that his loss
did not exceed the deductible.
INTERROGATORY NO. 9. Identify and describe all damage you observed during your
inspection(s) of the claim made the basis of this Lawsuit. To the extent the damage you observed
during your inspection is reflected in scope notes and photographs, you can refer Plaintiffs to
such scope notes and/or photographs.
RESPONSE:
Defendant found wind damage to Plaintiffs’ roof as well as interior damage to several rooms.
Complete information from Defendant’s inspection can be found in the documents produced in
State Farm Lloyds’ Response to Plaintiffs’ Requests for Production.
INTERROGATORY NO. 10. For all damage observed at the Property or reflected in your
scope notes and/or photographs, state what you believe to be the cause of the damage, describing
the investigatory steps you took to determine the cause, and identify all person(s) and/or entity(s)
that provided information or participated in that determination.
RESPONSE:
Objection, this request is overly broad and unduly burdensome. Subject to these objections,
Defendant found wind damage to Plaintiffs’ roof as well as interior damage to several rooms.
Complete infirmation from Defendant’s inspection can be found in the documents produced in
State Farm Lloyds’ Response to Plaintiffs’ Requests for Production.
INTERROGATORY NO. 11. To the extent you applied or recommended policy exclusions,
identify all exclusions under the Policy applied to that claim made the basis of this Lawsuit, and
for each exclusion applied or recommended, state the factual reason(s) that the exclusion was
applied or recommended.
RESPONSE:
Defendant objects to this Interrogatory as it is overly broad, unduly burdensome, and Defendant
is not required to marshal his evidence. Defendant further objects as Plaintiff is impermissibly
attempting to shift the burden of proof onto State Farm. Subject to these objections, information
regarding Plaintiffs’ claim may be found within the records produced from the Enterprise Claim
System relative to Plaintiffs’ claim.
INTERROGATORY NO. 12. Identify the information you used to determine and how you
calculated the amount of depreciation that you applied to any damage categories included in any
estimates you prepared and/or approved on the claim made the basis of this Lawsuit.
RESPONSE:
Defendant objects to this interrogatory to the extent it purports to require Defendant to marshal
all of his evidence or state all its legal or factual assertions in answering it. Subject to these
objections, information regarding Plaintiffs’ claim may be found within the records produced
from the Enterprise Claim System relative to Plaintiffs’ claim.
INTERROGATORY NO. 13. How did you determine whether you would or would not apply
overhead and profit (O&P) to Plaintiffs’ claim?
RESPONSE:
Defendant objects to this interrogatory to the extent it purports to require Defendant to marshal
all of his evidence or state all its legal or factual assertions in answering it. Subject to these
objections, information regarding Plaintiffs’ claim may be found within the records produced
from the Enterprise Claim System relative to Plaintiffs’ claim.
INTERROGATORY NO. 14. Identify all documents that you relied upon in the adjustment of
the claim made the basis of this Lawsuit. For each document, identify who provided the
document.
RESPONSE:
Defendant objects to the Request to the extent that it seeks confidential, proprietary business
information and trade secrets that are the sole and exclusive property of the insurance company
that this Defendant has no legal authority to produce. Further, due to the overly broad nature of
this Request, it is also a potential invasion of the attorney-client privilege and the work product
privilege. Moreover, the Request is unduly burdensome and seeks information that is neither
relevant nor reasonably calculated to lead to the discovery of admissible evidence. Subject to and
without waiving the foregoing objections, this Defendant relied on the contract of insurance,
electronic information regarding the claim, and relevant claims handling procedures for claims
alleged to have arisen from the weather event that occurred on the date of loss.
Additionally, subject to and without waiving the foregoing objections, for information reflecting
the application of claims procedures to Plaintiffs claim, see the records produced by State Farm
from State Farm’s Enterprise Claim System relative to Plaintiffs claim.
INTERROGATORY NO. 15. Identify all documents or information you requested from
Plaintiffs during the investigation of the claim made the basis of this Lawsuit, the date the
request was made, the person who communicated the request, and the Plaintiffs who received the
request.
RESPONSE:
Defendant objects that this information is equally accessible to Plaintiffs. Subject to these
objections, information regarding Plaintiffs’ claim may be found within the records produced
from the Enterprise Claim System relative to Plaintiffs’ claim.
INTERROGATORY NO. 16. Identify all documents or items in your possession related to the
claim made the basis of this Lawsuit that you did not submit to the insurance company and/or
adjusting company assigned to this claim.
RESPONSE:
Defendant has no such documents in his possession, custody or control.
INTERROGATORY NO. 17. To the extent you are aware, identify all documents or items that
were altered, revised, changed or removed from the documents or information you provided the
insurance company or adjusting company relating to the claim made the basis of this Lawsuit.
RESPONSE:
Defendant objects to this Request as vague, ambiguous, and overly broad, rendering it nothing
more than a fishing expedition, in violation of the letter and spirit of Texas Discovery law.
Further, there has been no showing that any of the documents in the underlying documents
previously produced by State Farm have been lost, destroyed, or otherwise made unavailable.
Therefore the Request is not relevant, nor is it reasonably calculated to lead to the discovery of
admissible evidence,
INTERROGATORY NO. 18. Identify and describe any training, guidance or instruction
provided to you by any person and/or entity regarding the handling of claims arising out of the
Webb County hail storm occurring on or about June 7, 2013 and/or June 14, 2013.
RESPONSE:
Materials on which individuals were trained prior to the date of loss, and that were obsolete on
the date of loss, are neither material nor relevant to the matters at issue in this case. This request
seeks information that is neither relevant nor reasonably calculated to lead to the discovery of
admissible evidence.
As to State Farm training materials, this Defendant objects in that the request may cover
materials that are confidential, proprietary business information and/or trade secret. In addition,
due to the overly broad nature of this request, it is also a potential invasion of the attorney-client
or work product privileges.
___
0S/18/2014 15:49 FAX
001/001
By
FELIPI: A
VEiH’JCATI ON
THE. STATE OF TFXA S
§
COUNTY OF BEXA! §
BEFORE ME, the undersigned authority, on this day personally appearedq FELtPE
FAAS, frnnt n bove it! wi nwnb’re 1!se. beio by nv sworn, upon
oath deposed and said that he has read the Objections and Responses to Plaintiffs’
Inter ogatores, and they ar’ !n’ and corrc.
SUBSCRIBED AND SWORN TO BEFORE ME by the said FELIPE FARIAS on this
the doy of Q41J_ , 2014.
Notary Public. Stare of Texas
NO. 2OJ4CVFOO1 162-1)1
RAUL RODRIGUEZ AND § IN THE DISTRICT COURT OF
NOEMI RODRIGUEZ §
§
VS. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND
Tl{
FELIPE FARIAS JUDICIAL DISTRiCT
PRIVILEGE LOG
Comes now STATE FARM LLOYDS, Defendant herein, and files the following
Privilege Log:
BATES NO. DESCRIPTION OF ITEMS PRIVILEGE
WITHHELD
SF000001 State Farm Financial Summary contains Work product
confidential claims handling information and
was prepared after the anticipated date of
litigation
SF000005 State Farm Claim Owner Office, Claim Work product
THRU Handler Office, Alerts and Participant
SF000007 Details Named Insured contains
-
confidential claims handling and insured
information and was prepared after the
anticipated date of litigon
SF000010 State Farm View Performers contains Work product
confidential claims handling information and
prepared after the anticipated date of
litigation
SF000015 State Farm File History Tasks prepared
- Work product
after the anticipated date of litigation
SF0000 16 State Farm File History File Changes
- Work product
THRU prepared after the anticipated date of
SF000017 litigation
SF000021 State Farm File History Financial Changes
- Work product
THRU and File History Performer Changes
-
SF000022 prepared after the anticipated date of
litigation
SF000025 State Farm Document List Details Report Work product
prepared after the anticipated date of
litigation —_____________________
SF000036 State Farm email prepared after the Work product
anticipated date of litigation
SF000037 State Farm correspondence prepared after the Work product
anticinated date or’
SF000120 State Farm Claim Work product
confidential
SF000l36 -
the
‘4
By Deputy
_____________,2014,
confidential insured information
SF000138 State Farm Materials Report contains Work product
confidential insured information
SF000139 State Farm Summary Report contains Work product
confidential insured information
SF000146 State Farm ISO ClaimSearch Replacement Work product
THRU Claim Details contains confidential insured
SF000148 information
Respectfully submitted,
HUSEMAN & STEWART
615 N. Upper Broadway, Suite 2000
Corpus Christi, TX 78401-078 1
(361) 883-3563; (361) 883-0210 (Fax)
VAN HUSEMAN
State Bar No. 1032350
ERIC STEWART
State Bar No. 24058133
TIFFANY DEBOLT
State Bar No. 24074118
Attorneys for Defendant State Farm Lloyds
CERTIFICATE OF SERVICE
A true and corTect copy of the foregoing was this day of
served on the following via the method referenced below:
a
VIA CM/RRR
Mr. J. Steve Mostyn
The Mostyn Law Firm
3810 West Alabama Street
Flouston, TX 77027
7
LT (
TIFFANY DEBOLT
NO. 2OI4CVFOO1 162-DI
RAUL RODRIGUEZ AND NOEMI § IN THE DISTRICT COURT
RODRIGUEZ, §
Plaintiffs §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND FELIPE §
FARIAS. §
Defendants § 49TH JUDICIAL DISTRICT
DEFENDANT’S, STATE FARM LLOYI)S, RESPONSES TO
PLAINTIFF’S REQUESTS FOR DISCLOSURE
TO: RAUL RODRIGUEZ AND NOEMI RODRIGUEZ, by and through their attorneys of
record, Mr. J. Steve Mostyn, 3810 West Alabama Street, Houston, Texas 77027.
Comes now STATE FARM LLOYDS, Defendant herein, and files this its Responses to
Plaintiff’s Requests for Disclosure.
Respectfully submitted,
HUSEMAN & STEWART
615 N. Upper Broadway, Suite 2000
Corpus Christi, TX 78401-0781
(361) 883-3563; (361) 883-0210 (Fax)
VAN HUSEMAN
State Bar No. 1032350
ERIC STEWART
State Bar No. 24058133
TIFFANY DEBOLT
State Bar No. 24074118
Attorneys for Defendant State Farm Lloyds
of cerfç
the—- dayoY_.j_Xij 2OI
ESTHER DEci,LLA 0
By hID:outv
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing was this day of ,2014,
served on the following;
VIA CM/RRR
Mr. J. Steve Mostyn
3810 West Alabama Street
Houston, TX 77027
/ TIFFANY DeBOL
DEFENDANT’S, STATE FARM LLOYDS, RESPONSES TO
PLAINTIFF’S REQUESTS FOR DISCLOSURE
(a) The correct names of the parties to the lawsuit.
RESPONSE: Defendant believes that Plaintiff’s petition properly sets forth the
correct names of the parties.
(b) The name, address, and telephone number of any potential parties.
RESPONSE: Defendant is unaware of any possible responsible third parties at this
time, but reserves the right to supplement this response.
(c) The legal theories and, in general, the factual bases of the responding party’s claims or
defenses (the responding party need not marshal aLl evidence that may be offered at trial).
RESPONSE: Defendant generally denies Plaintiffs allegations. Please also see
Defendant’s live pleadings,
(d) The amount and any method of calculating economic damages.
RESPONSE: Defendant is not seeking economic damages. Plaintiffs recovery, if
any, is limited by the terms of the insurance contract.
(e) The name, address, and telephone number of persons having knowledge of relevant facts,
and a brief statement of each identified person’s connection with the case.
RESPONSE: See attached Exhibit “A”. Defendant will supplement as more
information becomes available.
(f) For any testifying expert:
(1) the expert’s name, address, and telephone number;
(2) the subject matter on which the expert will testify;
(3) the general substance of the experts mental impressions and opinions and a brief
summary of the basis for them, or if the expert is not retained by, employed by, or
otherwise subject to the control of the responding party, documents reflecting
such information;
(4) if the expert is retained by, employed by, or otherwise subject to the control of the
responding party:
(A) all documents, tangible things, reports, models, or data compilations that
have been provided to, reviewed by, or prepared by or for the expert in
anticipation of the experts testimony; and
(B) the experts current resume and bibliography.
RESPONSE: None at this time; Defendant will supplement.
Defendant reserves the right to call any and all experts designed by Plaintiff herein.
(g) Any discoverable indemnity and insuring agreements.
RESPONSE: See attached Exhibit “B”.
(h) Any discoverable settlement agreements.
RESPONSE: None.
(i) Any discoverable witness statements.
RESPONSE: None in Defendant’s possession.
(j) All medical records and bills that are reasonably related to the injuries and damages
asserted or, in lieu thereof, an authorization permitting the disclosure of such medical
records and bills.
RESPONSE: Not applicable.
(k) All medical records and bills obtained by the responding party by virtue of an
authorization furnished by the requesting party.
RESPONSE: Not applicable.
(1) the name, address, and telephone number of any person who may be designated as a
responsible third party.
RESPONSE: Defendant is unaware of any possible third parties at this time, but
reserves the right to supplement this response.
EXHIBIT A
WITNESS LIST
_________ ______
Name Address Telephone Connection to the Case
Raul Rodriguez c/o J. Steve 713-861-6616 Plaintiff
Mostyn, 381 0
West Alabama
Street,
Houston,
Texas 77027
Noemi Rodriguez c/o J. Steve 713-861-6616 Plaintiff
Mostyn, 3810
West Alabama
Street,
Houston,
Texas 77027
State Farm Lloyds c/o Van 361-883-3563 Defendant
Huseman and
Tiffany
DeBolt,
Felipe Farias Huseman &
Stewart, PLLC,
615 N. Upper
Broadway,
Suite 2000,
Corpus Christi,
TX 78401
Felipe Farias do Van 361-883-3563 Defendant
Huseman and
Tiffany
DeBolt,
lluseman &
Stewart, PLLC,
615 N. Upper
Broadway,
Suite 2000,
Corpus Christi,
TX 78401
J. Steve Mostyn 3810 West 713-861-6616 Plaintiffs counsel
Alabama
Street,
Houston,
Texas 77027
Van Huseman Huseman & 361-883-3563 Defendant’s counsel
Tiffany DeBolt Stewart, PLLC,
615 N. Upper
Broadway,
Suite 2000,
Corpus Chri sti, —
. 1\ej4,py of i certi
the - -day 20
ES
By
TX 78401
_________
NO. 2OI4CVFOO1 162-DI
RAUL RODRIGUEZ AND NOEMI § IN THE DISTRICT COURT
RODRIGUEZ, §
Plaintiffs §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND FELIPE §
FARIAS, §
Defendants § 49TH JUDICIAL DISTRICT
DEFENDANT’S, STATE FARM LLOYDS, RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ REQUESTS FOR PRODUCTION
TO: Raul and Noemi Rodriguez, by and through their attorney of record, Mr. J. Steve
Mostyn, 3810 West Alabama Street, Houston, Texas 77027.
Comes now STATE FARM LLOYDS, Defendant herein, and files this its Responses and
Objections to Plaintiffs’ Requests for Production.
Respectfully submitted,
HUSEMAN & STEWART
615 N. Upper Broadway, Suite 2000
Corpus Christi, TX 78401-0781
(361) 883-3563; (361) 883-0210 (Fax)
State BarNo. 1032350
ERIC STEWART
State Bar No. 24058133
TIFFANY DEBOLT
State Bar No. 24074118
Attorneys for Defendant State Farm Lloyds
Içue ppy of
the
By
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing was this
served on the following:
/ 7’ day of
0
2014,
Via CM-RRR
The Mostyn Law Firm
Mr. J. Steve Mostyn
3810 West Alabama Street
Houston, TX 77027
tiiN
DEFENDANT’S, STATE FARM LLOYDS, OBJECTIONS TO DEFINiTIONS
1. State Farm objects to Plaintiffs’ definition of the term “Document” in that the following
terms or phrases are vague and ambiguous: “visual” and “information items.” State
Farm notes that all “textual” documents are also “visual” inasmuch as they can be seen
and therefore it is unclear what is meant by the separate category of “visual” items. In
responding to this discovery, State Farm assumes the term “visual” is meant to refer to
graphic images. Similarly, the term “information items” is vague, overly broad, unduly
burdensome, and beyond the permissible scope of discovery under the Tex. R. Civ. P.
because many items of information may be shared by oral communication, and therefore
are not “things” subject to discovery under Tex. R. Civ. P. 192.3(b); or may be ephemeral
information, such as temporary computer files, and therefore preservation and production
of such information would be disproportionate to the scope of the matter pursuant to Tex.
R. Civ. P. 192.4. In responding to discovery, State Farm assumes that “information
items” is meant to refer to the documents and electronic information discoverable
pursuant to Tex. R. Civ. P. 192.3(b) and 196.1. State Farm further objects to Plaintiffs’
use of the term “Document” to the extent it seeks to require State Farm to record and/or
produce records and information that are not ordinarily captured, and/or are overwritten
in the ordinary course of operating State Farm’s computing systems making the definition
overly broad, unduly burdensome, not reasonably calculated to lead to the discovery of
admissible evidence, and beyond the scope of permissible discovery. State Farm further
objects to the extent the definition implies there is an obligation to produce information
subject to discovery under Tex. R. Civ. P. 196 in more than one form or in a manner that
is different than the forms in which State Farm has already agreed to produce, or that the
same must be produced in native format. Native format may not be reasonably available
to State Farm in the ordinary course of business. Finally, State Farm objects to the
definition of “Document” to the extent it would require the production or disclosure of
information protected from discovery by the attorney-client privilege and/or work
product doctrine. State Farm will produce responsive, non-privileged documents and
electronic information discoverable pursuant to Tex. R. Civ. P. 192.3(b) and 196.1.
2. State Fann objects to Plaintiffs’ definition of the term “Person” and consequently
“Handle,” “handled,” “handling” and/or “worked on” by “any person” to the extent that it
purports to impose obligations greater than those set forth in Tex. R. Civ. P. 192.3. State
Farm further objects to the extent the definitions include its attorneys or to the extent
Plaintiffs seek information protected from discovery by the attorney-client privilege
and/or work product protection.
3. State Farm objects to Plaintiffs’ definition of the term “Describe” in that it is ambiguous
whether the term “document” therein is meant to be a general term, or if it is referring to
“Document” as defined herein. Assuming that the term “document” is meant to include
electronically stored information discoverable under Tex. R. Civ. P. 196, State Farm
objects to the definition of “Describe” because parts a. through e. are vague and
ambiguous and it is not clear what specific information plaintiffs are seeking (e.g.. a
Word document may be titled “ABC.docx” in the Windows file title and have a different
title or heading in the document’s text). State Farm further objects to the definition of
“Describe” to the extent that it seeks information about “Documents” that is overly broad,
unduly burdensome, not reasonably calculated to lead to the discovery of admissible
evidence, and beyond the scope of permissible discovery.
OBJECTIONS TO PRODUCTION PROTOCOL RELATING TO
ELECTRONICALLY STORE INFORMATiQNjESj ATTENDANT TO PLAINTIFFS’
DISCO VERY TO DEFENDANT STATE FARM LLOYDS
1. State Farm objects to the request for production in native format to the extent responsive
documents are not reasonably available in native format to State Farm in the ordinary
course of business. State Farm further objects pursuant to Tex. R. Civ. P. 196.4, in that it
would take unreasonable and extraordinary efforts to produce such documents in the form
requested. Notwithstanding this objection, State Farm agrees to produce in native format
pursuant to Tex. R. Civ. P. 196.4 to the extent responsive documents are reasonably
available in native format in the ordinary course of business. Documents that contain
redactions will not be produced in native format. Please also refer to objection number 6.
2. State Farm objects to Plaintiffs’ description of near native file types on the grounds that it
does not offer an alternative to native format. State Farm therefore incorporates by
reference the objection to protocol provision number 2 regarding the production of native
format above. (See paragraph 2.) State Farm further objects pursuant to Tex. R. Civ. P.
196.4, it is not required to produce ESI in near-native formats if it would take
unreasonable and extraordinary efforts to produce such documents in the form requested.
3. State Farm objects to Plaintiffs’ examples of near-native forms on the grounds they do
not represent an alternative to a native format. For those examples that represent native
forms sought, State Farm objects to the extent responsive documents are not reasonably
available in native format to State Farm in the ordinary course of business. State Farm
further objects pursuant to Tex. R. Civ. P. 196.4, on that it would take unreasonable and
extraordinary efforts to produce such documents in the form requested. Notwithstanding
this objection, State Farm agrees to produce in native format pursuant to Tex. R. Civ. P.
196.4 to the extent responsive documents are reasonably available in native format in the
ordinary course of business.
4. State Farm objects to this request because it is overboard and unduly burdensome. State
Farm further objects pursuant to Tex. R. Civ. P. 196.4, in that it would take unreasonable
and extraordinary efforts to produce such documents in the form requested.
Notwithstanding these objections, State Farm will produce database reports generated in
the ordinary course of business in the form they are normally used. State Farm agrees to
meet and confer prior to producing from databases as necessary.
5. State Farm objects to the production of information items in color to the extent it cannot,
through reasonable efforts, produce such items in the requested format pursuant to Tex.
R. Civ. P. 196.4. State Farm objects to the production request to the extent it requests
full extraction and OCR for redacted documents on the grounds it seeks attorney-client or
work product privileged materials. Notwithstanding these objections, State Farm notes
that any documents produced natively will retain any color existing in the original
document. State Farm agrees to extract the non-redacted content of each document by
optical character recognition (OCR) or other suitable method to a searchable text file
produced with the corresponding page image(s) or embedded within the image file. State
Farm further objects to Plaintiffs’ production request insofar as it directs State Farm to
undertake efforts that exceed the requirements of Tex. R. Civ. P. 193.3. State Farm will
withhold privileged material or information and describe the same in accordance with the
Texas Rules of Civil Procedure,
6. State Farm objects to Plaintiffs’ demand that Adobe Acrobat be used for redactions on
the grounds that using Adobe Acrobat will require unreasonable and extraordinary efforts
pursuant to Tex. R. Civ. P. 196.4.
7. State Farm objects to Plaintiffs’ demand for deduplication by MD5 hash value on the
grounds that it requires State Farm to undertake unreasonable efforts pursuant to Tex. R.
Civ. P. 196.4. State Farm will provide hash values but reserves the right to use an
alternative to MD5. With respect to the categories of information requested in the load
file, State Farm will produce such information to the extent the field values are available.
8. State Farm objects to Plaintiffs’ demand State Farm produce ESI on the medium
requiring the least number of deliverables in that it purports to impose obligations greater
than those set forth in the Texas Rule of Civil Procedure. State Farm further objects to
Plaintiffs’ request that State Farm organize productions by custodian because it would
require State Farm to undertake unreasonable and extraordinary efforts insofar as ESI is
not organized by custodian in State Farm’s ordinary course of business. Additionally,
State Farm objects to Plaintiffs’ request that all documents from an individual custodian
be delivered in a single load file on the grounds it is unduly burdensome and will cause
unnecessary delay in the production of documents in contravention of Tex. R. Civ. P. 1.
9. State Farm objects to the request to the extent it requires use of a dash (-) in the bates
numbering format on the grounds that it requires State Farm to undertake unreasonable
efforts pursuant to Tex. R. Civ. P. 196.4. State Farm also objects to this request with
respect to claim information on the grounds that it requires State Farm to undertake
unreasonable and extraordinary efforts pursuant to Tex. R. Civ. P. 196.4.
10. State Farm objects to Plaintiffs’ demand that the load file provide MD5 hash values on
the grounds that it requires State Farm to undertake unreasonable efforts pursuant to Tex.
R. Civ. P. 196.4. State Farm will provide hash values but reserves the right to use an
alternative to MD5. With respect to the categories of information requested in the load
file, State Farm will produce such information to the extent the field values are available.
REQUEST FOR PRODUCTION NO. 1. The following insurance documents issued for the
Property as identified in the Petition:
a. the policy at issue for the date of loss as identified in the Petition; and
b. the policy declarations page for the 3 years preceding the storm.
RESPONSE:
Please see attached document Bates Numbered BRA000001-BRA000053.
REQUEST FOR PRODUCTION NO. 2. Produce underwriting files and documents relating
to the underwriting for all insurance policies for the Property identified in the Petition. This
request is limited to the past 5 years. To the extent Defendant contends that the underwriting file
or documents older than 5 years impact the damages or coverage, produce that underwriting file
or document.
RESPONSE:
State Farm objects to this request because it seeks information that is not relevant, nor is it
reasonably calculated to lead to the discovery of admissible evidence. State Farm further objects
to the term “underwriting file” because it is vague, ambiguous and overbroad to the extent it
assumes a physical file exists. State Farm does not maintain a physical file folder with respect to
each insured. Underwriting information regarding each policy is stored electronically. State
Farm further objects to this request as overly broad in scope and time.
REQUEST FOR PRODUCTiON NO. 3. All documents relating to the condition or damages
of the Property or any insurance claim on the Property identified in the Petition.
RESPONSE:
Objection this request is overly broad, unduly burdensome, vague, and not limited in time and
scope.
Notwithstanding the foregoing, please see the records produced from State Farm’s Enterprise
Claim System relative to Plaintiffs’ claim that is the subject of this litigation, Bates Numbered
SF00000I-SF000I5O.
REQUEST FOR PRODUCTION NO. 4. All documents relating to any real property
insurance claims made by the Plaintiff(s). This request is limited to the past 5 years. To the
extent Defendant contends that documents older than 5 years impact the damages or coverage,
produce that document.
RESPONSE:
State Farm objects to this Request because it is overly broad and seeks information that is neither
relevant nor reasonably calculated to lead to the discovery of admissible evidence.
Notwithstanding the foregoing, included in the records produced from State Farm’s Enterprise
Claim System relative to Plaintiffs’ claim that is the subject of this litigation, is information
reflecting Plaintiffs’ prior claims (if any) on the subject policy of insurance. State Farm handles
each claim according to its individual merits and unique set of circumstances.
REQUEST FOR PRODUCTION NO. 5. All requests for information to any third party about
the Property, the Plaintiff(s), or the claims made the basis of this Lawsuit.
RESPONSE:
Objection this request is overly broad, unduly burdensome, vague, and not limited in time and
scope. Furthermore, the information in this request is not reasonably calculated to lead to the
discovery of admissible evidence.
Notwithstanding the foregoing, please see the records produced from State Farm’s Enterprise
Claim System relative to Plaintiffs’ claim that is the subject of this litigation, Bates Numbered
SF000001 -SF000150.
REQUEST FOR PRODUCTION NO. 6. All documents used to instruct, advise, guide,
inform, educate, or assist provided to any person handling the claim made the basis of this
Lawsuit that related to the adjustment of this type of claim, i.e., hail property damage.
RESPONSE:
State Farm objects to the Request as vague, ambiguous, overly broad, and unduly burdensome.
State Farm objects to the Request because it appears to be seeking confidential, proprietary
business information and trade secrets. Further, due to the overly broad nature of this Request,
work
the question is also a potential invasion of the attorney-client privilege and the attorney
information that is neither relevant nor
product doctrine. Moreover, the Request seeks
Furthe rmore, materials on
reasonably calculated to lead to the discovery of admissible evidence.
obsole te on the date of
which individuals were trained prior to the date of loss, and which were
loss, are neither material nor relevant to the matters at issue in this case. Subject to and without
ures that
waiving these objections, State Farm agrees to produce relevant claims handling proced
arisen from the weathe r event that occurred
may have been used to adjust claims alleged to have
entialit y/Prote ctive Order
on the date of loss, some of which will require an agreed upon Confid
objections, for
before production. Additionally, subject to and without waiving the foregoing
records
information reflecting the application of claims procedures to Plaintiffs’ claim, see the
produced from State Farm’s Enterprise Claim System relative to Plaintiffs’ claim. Operational
order to
and procedural guides provide instructions as to what is to be printed from the ECS in
enviro nment. In addition to what is
generate a Claim File for production outside of the ECS
other physical file
printed from the ECS to generate a Claim File, any associated paper or
File.
materials are also considered part of the Claim File. State Farm has produced its Claim
State Farm is withholding portions of its Claim File that contain information protected by the
attorney client privilege andlor is work product.
REQUEST FOR PRODUCTION NO. 7. All documents obtained from any person(s) or
entity(ies) and governmental agencies on behalf of Defendant or by Defendant relating to the
Plaintiff(s), the Property, the Policy, or the claims made the basis of this Lawsuit. This request
includes all documents obtained by way of deposition on written questions.
RESPONSE:
Objection this request is overly broad, unduly burdensome, vague, and not limited in time and
scope. Furthermore, the information in this request is not reasonably calculated to lead to the
discovery of admissible evidence.
Notwithstanding the foregoing, please see the records produced from State Farm’s Enterprise
Claim System relative to Plaintiffs’ claim that is the subject of this litigation, Bates Numbered
SF000001 -SF000150.
REQUEST FOR PRODUCTION NO. 8. All documents received (prior to litigation) directly
or indirectly from Plaintiff(s) or created by Plaintiff(s) related to the Property made the basis of
this lawsuit. This request is limited to the past 5 years. To the extent Defendant contends that any
document older than 5 years impact the damages or coverage, produce that document.
RESPONSE:
Objection this request is overly broad, unduly burdensome, vague, and not limited in time and
to the
scope. Furthermore, the information in this request is not reasonably calculated to lead
discovery of admissible evidence.
Notwithstanding the foregoing, please see the records produced from State Farm’s Enterprise
Claim System relative to Plaintiffs’ claim that is the subject of this litigation, Bates Numbered
SF00000I-SF0001 50.
any
REQUEST FOR PRODUCTION NO. 9. Produce a copy of all price lists used to prepare
st is an
estimates for the claim made the basis of this Lawsuit. To the extent the priceli
unmodified pricelist from a third party, you can reference the vendor and version of the pricelist
with a stipulation that it is unmodified.
RESPONSE:
objects
State Farm objects to this Request, as it is vague and overly broad in scope. State Farm
confid ential, proprietary busine ss information and
to this Request because it appears to seek
trade secrets. As presently worded, the Request is not relevant, nor is it reasonably calculated to
lead to the discovery of admissible evidence.
Notwithstanding any objection. a copy of the Xactimate estimate(s) pertaining to the claim at
issue was included in the records previously produced from State Farm’s Enterprise Claim
System relative to Plaintiffs’ claim that is the subject of this litigation. Price list(s) was/were
used to prepare that/those estimate(s). As applicable to Plaintiffs’ claim, any modifications to
the prices on the specified price list(s) will be reflected in the estimate and/or the Price Variation
Usage, or Audit reports included in the records provided from State Farm’s Enterprise Claim
System relative to Plaintiffs’ claim that is the subject of this litigation.
REQUEST FOR PRODUCTION NO. 10. To the extent Defendant created or altered any
prices used in the preparation of an estimate in the claim made the basis of this Lawsuit, produce
all documents related to the creation or alteration of the price, including the original price for that
item and the factual bases for the creation or alteration.
RESPONSE:
State Farm objects to this Request, as it is vague and overly broad in scope. State Farm objects
to this Request because it appears to seek confidential, proprietary business information and
trade secrets. As presently worded, the Request is not relevant, nor is it reasonably calculated to
lead to the discovery of admissible evidence.
Notwithstanding any objection, a copy of the Xactimate estimate(s) pertaining to the claim at
issue was included in the records previously produced from State Farm’s Enterprise Claim
System relative to Plaintiffs’ claim that is the subject of this litigation. Price list(s) was/were
used to prepare that/those estimate(s). As applicable to Plaintiffs’ claim, any modifications to
the prices on the specified price list(s) will be reflected in the estimate andlor the Price Variation
Usage, or Audit reports included in the records provided from State Farm’s Enterprise Claim
System relative to Plaintiffs’ claim that is the subject of this litigation.
REQUEST FOR PRODUCTION NO. 11. A complete copy [of] the personnel file related to
performance (excluding medical and retirement information) for all people and their managers
andlor supervisors who directly handled the claim made the basis of this Lawsuit, including all
documents relating to applications for employment, former and current resumes, last known
address, job title, job descriptions, reviews, evaluations, and all drafts or versions of requested
documents. This request is limited to the past 5 years.
RESPONSE:
State Farm objects to this Request because it is not relevant, nor is it reasonably calculated to
lead to the discovery of admissible evidence. The Request calls for confidential and proprietary
business information belonging to the State Farm and invades the privacy of defendant’s
employees. The Request is overly broad in scope and calls for information that surpasses the
issues in this case.
REQUEST FOR PRODUCTION NO. 12. All organizational charts, diagrams, lists, andlor
documents reilecting each department, division or section of Defendant’s company to which the
claim made the basis of this Lawsuit was assigned.
RESPONSE:
State Farm objects to the Request on the grounds that it is vague and ambiguous, and seeks
information that is neither relevant, nor reasonably calculated to lead to the discovery of
admissible evidence. It seeks information that would be more properly obtained through a
deposition. Further, it seeks confidential and proprietary business information. It is overly broad
and does not confine itself to the individuals involved in the handling of this claim.
REQUEST FOR PRODUCTION NO. 13. All Texas insurance licenses and/or certifications in
effect that (sic) the time of the claims arising out of the Webb County hail storm which occurred
on or about June 7, 2013 andlor June 14, 2013 for all persons who worked on the claim made the
basis of this Lawsuit, including any document relating to the application, issuance or review of
those licenses arnilor certifications. This request excludes those who performed merely
ministerial acts, i.e. people who answer phones, file clerks whose only job duty is to stamp
“received,” etc.
RESPONSE:
State Farm objects to the Request as seeking information equally available to all parties.
Specifically, this information is publicly available without charge at www.tdi.texas.gov andlor
www.sircon.com. The adjuster’s licensing status and number can be found on the TDI site and
his or her CE information may be found on Sircon. In addition, State Farm objects to this
Request as overly broad in time, insofar as it seeks licensing information prior to the date of loss,
and overLy broad in scope, insofar as it seeks licensing information not relevant to an adjuster’s
status in Texas.
REQUEST FOR PRODUCTION NO. 14. If an engineer andlor engineering firm evaluated the
Property, produce all reports written at the request of Defendant by that engineer or engineering
firm within the last 3 years. This request is limited to the extent that the engineer andior
engineering firm was used during claims handling.
RESPONSE:
State Farm objects to this Request because it is not relevant, nor is it reasonably calculated to
lead to the discovery of admissible evidence. The existence of other claims will neither prove nor
disprove that any wrongdoing occurred in the handling of this claim. The Request may also
violate the privacy rights of other policyholders or consumers, as well as invade the
attorney/client and or work product privileges. Responding to this Request has the potential to be
onerous and burdensome. State Farm objects to the request to the extent it seeks information
related to a testif’ing expert witness in violation of Texas Rule of Civil Procedure 195.1 or a
consulting-only expert, in violation of Texas Rule of Civil Procedure 192.3(e).
Notwithstanding its objections, for information reflecting the engineer, if any, involved in
handling Plaintiffs’ claim at issue in this lawsuit, see the records produced from State Farm’s
Enterprise Claim System relative to Plaintiffs’ claim.
REQUEST FOR PRODUCTION NO. 15. Produce all documents showing amounts billed and
paid to any engineer andlor engineering firm identified in response to Request for Production
No. 17 above within the last three years. A summary is acceptable in lieu of actual invoices or
payments.
RESPONSE:
State Farm objects to this Request because it is not relevant, nor is it reasonably calculated to
lead to the discovery of admissible evidence. The existence of other claims will neither prove nor
disprove that any wrongdoing occurred in the handling of this claim. The Request is also overly
broad in terms of geographic area and may also violate the privacy rights of other policyholders
or consumers, as well as invade the attorney/client and or work product privileges. Responding
to this Request has the potential to be onerous and burdensome. State Farm objects to the
request to the extent it seeks information related to a testif’ing expert witness in violation of
Texas Rule of Civil Procedure 195.1 or a consulting-only expert, in violation of Texas Rule of
Civil Procedure 192.3(e).
Notwithstanding its objections, for information reflecting the engineer, if any, involved in
handling Plaintiffs’ claim at issue in this lawsuit, see the records produced from State Farm’s
Enterprise Claim System relative to Plaintiffs’ claim.
REQUEST FOR PRODUCTION NO. 16. All documents reflecting the pre-anticipation of
litigation reserve(s) set on the claim made the basis of this Lawsuit, including any changes to the
reserve(s) along with any supporting documentation.
RESPONSE:
State Farm objects to this Request as it is overbroad and is not relevant, nor is it reasonably
calculated to lead to the discovery of admissible evidence.
REQUEST FOR PRODUCTION NO. 17. All documents relating to issues of honesty,
criminal actions, past criminal record, criminal conduct, fraud investigation and/or inappropriate
behavior which resulted in disciplinary action by Defendant of any person(s) or entity(ies) who
handled the claim made the basis of this Lawsuit, the Plaintiff(s) or any person assisting on the
claim made the basis of this Lawsuit.
RESPONSE:
State Farm objects to the Request because it is not relevant, nor is it reasonably calculated to lead
to the discovery of admissible evidence. The Request calls for confidential and proprietary
business information belonging to the State Farm and invades the privacy of defendant’s
employees. The Request is overly broad in scope and calls for information that surpasses the
issues in this case.
REQUEST FOR PRODUCTION NO. 18. All documents relating to work performance,
claims patterns, claims problems, commendations, claims trends, claims recognitions, andlor
concerns for any person who handled the claim made the basis of this Lawsuit.
RESPONSE:
State Farm objects to the Request because it is not relevant, nor is it reasonably calculated to lead
to the discovery of admissible evidence. The Request calls for confidential and proprietary
business information belonging to the State Farm and invades the privacy of defendant’s
employees. The Request is overly broad in scope and calls for information that surpasses the
issues in this case.
REQUEST FOR PRODUCTION NO. 19. All XactAnalysis reports that include this claim in
any way, this Policy, the amount paid on this Policy and/or referencing any person who handled
the claim made the basis of this Lawsuit relating to claims arising out of the Webb County hail
storm occurring on or about June 7, 2013 and/or June 14, 2013.
RESPONSE:
State Farm objects to this request as vague, ambiguous, and unduly burdensome. Further, the
request seeks information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. This request seeks confidential, proprietary, business
information and trade secrets. State Farm further objects to this request because Plaintiffs have
not established that production of State Farm’s confidential, proprietary or trade secret
information is necessary for a fair adjudication of Plaintiffs’ claims as required by the Texas
Supreme Court and Rule of Evidence 507. State Farm further objects that this request is overly
broad and invades the privacy of persons who are not parties to this lawsuit.
Notwithstanding the foregoing, for a copy of the Xaetimate® estimate, to which certain
XactAnalysis® reports are attached, any payments made on the claim at issue in this lawsuit, and
the claims persons who handled the claim at issue in this lawsuit, see the records previously
produced from State Farm’s Enterprise Claim System relative to Plaintiffs’ claim. Operational
and procedural guides provide instructions as to what is to be printed from the ECS in order to
generate a Claim File for production outside of the ECS environment. In addition to what is
printed from the ECS to generate a Claim File, any associated paper or other physical file
materials are also considered part of the Claim File, State Farm has produced its Claim File.
State Farm is withholding portions of its Claim File that contain information protected by the
attorney client privilege and/or is work product.
REQUEST FOR PRODUCTION NO. 20. Any email or document that transmits, discusses, or
analyzes any report produced in response to Request for Production No. 19 above.
RESPONSE:
State Farm objects to this request as vague ambiguous, and unduly burdensome. The Request is
not relevant, nor is it reasonably calculated to lead to the discovery of admissible evidence. This
request seeks confidential, proprietary business information and trade secrets. Further, State
Farm objects to this request to the extent it seeks communications protected by the attorney-
client or work product privileges. State Farm further objects to this request because Plaintiffs
have not established that production of State Farm’s confidential, proprietary or trade secret
information is necessary for a fair adjudication of Plaintiffs’ claims as required by the Texas
Supreme Court and Rule of Evidence 507. State Farm further objects that this request is overly
broad and invades the privacy of persons who are not parties to this lawsuit.
Notwithstanding the foregoing, see the records produced from State Farm’s Enterprise Claim
System relative to Plaintiffs’ claim. Operational and procedural guides provide instructions as to
what is to be printed from the ECS in order to generate a Claim File for production outside of the
ECS environment. In addition to what is printed from the ECS to generate a Claim File, any
associated paper or other physical file materials are also considered part of the Claim File. State
Farm has produced its Claim File. State Farm is withholding portions of its Claim File that
contain information protected by the attorney client privilege and/or is work product.
REQUEST FOR PRODUCTION NO. 21. All Simsol Management reports that include this
claim in any way, this Policy, the amount paid on this Policy and/or referencing any person who
handled the claim made the basis of this Lawsuit relating to claims arising out of the Webb
County hail storm occurring on or about June 7, 2013 and/or June 14, 2013.
RESPONSE:
State Farm does not utilize any report called “Simsol Management.”
REQUEST FOR PRODUCTION NO. 22. Any email or document that transmits, discusses, or
analyzes any report produced in response to Request for Production No. 21 above.
RESPONSE:
State Farm does not utilize any report called “Simsol Management.”
REQUEST FOR PRODUCTION NO. 23. For any consulting expert whose mental
impressions or opinions have been reviewed by a testifying expert: all documents or tangible
things that have been provided to, reviewed by, or prepared for the testifying expert.
RESPONSE:
State Farm will supplement if and when such information becomes available.
REQUEST FOR PRODUCTION NO. 24. Pursuant to Texas Rule of Evidence 609(f), provide
all documents evidencing conviction of a crime which you intend to use as evidence to impeach
any party or witness.
RESPONSE:
State Farm will supplement if and when such information becomes available.
REQUEST FOR PRODUCTION NO. 25. All indemnity agreements in effect at the time of
Plaintiffs’ claim between Defendant and any person(s) and/or entity(ies) who handled the claim
made the basis of the Lawsuit.
RESPONSE:
State Farm objects to this Request as overly broad, vague, and ambiguous as stated. State Farm
further objects to this Request as it calls for information and documents that are considered
confidential, propriety, trade secret business information. State Farm also objects to this Request
on grounds that it seeks information that is not relevant to any issue in this claim.
REQUEST FOR PRODUCTION NO. 26. All contracts in effect at the time of Plaintiffs’ claim
between Defendant and any person(s) and/or entity(ies) who handled the claim made the basis of
the Lawsuit.
RESPONSE:
State Farm objects to this Request as seeking information that is neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence. Further, this Request calls for
confidential, proprietary and/or trade secret information.
REQUEST FOR PRODUCTION NO. 27. All confidentiality agreements and/or instructions
regarding confidentiality in effect at the time of Plaintiffs’ claim between Defendant and any
person(s) and/or entity(ies) who handled the claim made the basis of the Lawsuit.
RESPONSE:
State Farm objects to this Request as seeking information that is neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence. State Farm further objects to this
Request as it is vague, ambiguous, and overly broad in scope, time, and geography. Further, this
request calls for confidential, proprietary and/or trade secret information. In addition, State Farm
objects to this request to the extent it seeks communications protected by the attorney-client or
work product privileges.
Notwithstanding its objections, no independent adjuster was primarily involved in the handling
of the claim at issue. State Farm will produce the Code of Conduct applicable to employee
adjuster(s) who had primary involvement in handling Plaintiffs’ claim.
REQUEST FOR PRODUCTION NO. 28. All documents between Defendant and any
person(s) andlor entity(ies) who handled the claim made the basis of the Lawsuit regarding
document retention policy in effect at the time of Plaintiffs’ claim.
RESPONSE:
State Farm objects to this Request as overly broad in time and scope, rendering it nothing more
than a fishing expedition, in violation of the letter and spirit of Texas Discovery law. Further,
there has been no showing that any of the documents in the underlying documents/information in
ECS have been lost, destroyed, or otherwise made unavailable. Therefore the Request is not
relevant, nor is it reasonably calculated to lead to the discovery of admissible evidence.
REQUEST FOR PRODUCTION NO. 29. To the extent the claim involves rescinding of the
policy, all documents regarding Defendant’s standards for investigating and rescinding and/or
voiding a policy.
RESPONSE:
Upon information and belief, the Plaintiffs’ claim at issue in this lawsuit does not involve a
rescinded policy. State Farm reserves the right to supplement this response if rescission becomes
an issue in the litigation.
NO. 2OI4CVFOO1 162-DI
RAUL RODRIGUEZ AND NOEMI § IN THE DISTRICT COURT
RODRIGUEZ, §
Plaintiffs §
§
VS. § OF WEBB COUI’JTY, TEXAS
§
STATE FARM LLOYDS AND FELIPE §
FARIAS, §
Defendants 49TH JUDICIAL DISTRICT
DEFENDANT’S, STATE FARM LLOYDS, RESPONSES AND OBJECTIONS TO
PLAINTIFFS’ FIRST SET OF INTERROGATORIES
TO: Raul and Noemi Rodriguez, by and through their attorney of record, Mr. J. Steve
Mostyn, 3810 West Alabama Street, Houston, Texas 77027.
Comes now STATE FARM LLOYDS, Defendant herein, and files this its Responses and
Objections to Plaintiffs’ First Set of Interrogatories.
Respectfully submitted,
HUSEMAN & STEWART
615 N. Upper Broadway, Suite 2000
Corpus Christi, TX 78401-0781
(361) 883-3563; (361) 883-0210 (Fax)
VAN HUSEMAN
State Bar No. 1032350
ERIC STEWART
State Bar No. 24058133
TIFFANY DEBOLT
State Bar No. 24074118
Attorneys for Defendant State Farm Lloyds
I C7
ESTHERDE LLiL
CI rk f tric C sand
By ieputy
______ ___________
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing was this day of 2014,
served on the following:
Via CM-RRR
The Mostyn Law Firm
Mr. J. Steve Mostyn
3810 West Alabama Street
Houston, TX 77027
TIFFANY DEBOLT
DEFENDANT’S, STATE FARM LLOYDS, OBJECTIONS TO DEFINITIONS
I. State Farm objects to Plaintiffs’ definition of the term “Document” in that the following
terms or phrases are vague and ambiguous: “visual” and “information items.” State
Farm notes that all “textual” documents are also “visual” inasmuch as they can be seen
and therefore it is unclear what is meant by the separate category of “visual” items. In
responding to this discovery, State Farm assumes the term “visual” is meant to refer to
graphic images. Similarly, the term “information items” is vague, overly broad, unduly
burdensome, and beyond the permissible scope of discovery under the Tex. R. Civ. P.
because many items of information may be shared by oral communication, and therefore
are not “things” subject to discovery under Tex. R. Civ. P. 192.3(b); or may be ephemeral
information, such as temporary computer files, and therefore preservation and production
of such information would be disproportionate to the scope of the matter pursuant to Tex.
R. Civ. P. 192.4, In responding to discovery, State Farm assumes that “information
items” is meant to refer to the documents and electronic information discoverable
pursuant to Tex, R. Civ. P. 192.3(b) and 196.1. State Farm further objects to Plaintiffs’
use of the term “Document” to the extent it seeks to require State Farm to record and/or
produce records and information that are not ordinarily captured, and/or are overwritten
in the ordinary course of operating State Farm’s computing systems making the definition
overly broad, unduly burdensome, not reasonably calculated to lead to the discovery of
admissible evidence, and beyond the scope of permissible discovery. State Farm further
objects to the extent the definition implies there is an obligation to produce information
subject to discovery under Tex. R. Civ. P. 196 in more than one form or in a manner that
is different than the forms in which State Farm has already agreed to produce, or that the
same must be produced in native format. Native format may not be reasonably available
to State Farm in the ordinary course of business. Finally, State Farm objects to the
definition of “Document” to the extent it would require the production or disclosure of
information protected from discovery by the attorney-client privilege and/or work
product doctrine. State Farm will produce responsive, non-privileged documents and
electronic information discoverable pursuant to Tex. R. Civ, P. 192.3(b) and 196.1.
2. State Farm objects to Plaintiffs’ definition of the term “Person” and consequently
“Handle,” “handled,” “handling” and/or “worked on” by “any person” to the extent that it
purports to impose obligations greater than those set forth in Tex. R. Civ, P. 192.3. State
Farm further objects to the extent the definitions include its attorneys or to the extent
Plaintiffs seek information protected from discovery by the attorney-client privilege
and/or work product protection.
3. State Farm objects to Plaintiffs’ definition of the term “Describe” in that it is ambiguous
whether the term “document” therein is meant to be a general term, or if it is referring to
“Document” as defined herein. Assuming that the term “document” is meant to include
electronically stored information discoverable under Tex. R. Civ. P. 196, State Farm
objects to the definition of “Describe” because parts a. through e. are vague and
ambiguous and it is not clear what specific information plaintiffs are seeking (e.g., a
Word document may be titled “ABC.docx” in the Windows file title and have a different
title or heading in the document’s text). State Farm further objects to the definition of
“Describe” to the extent that it seeks information about “Documents” that is overly broad,
unduly burdensome, not reasonably calculated to lead to the discovery of admissible
evidence, and beyond the scope of permissible discovery.
OBJECTIONS TO PRODUCTION PROTOCOL RELATING TO
ELECTRONICALLY STORE INFORMATION (ESI) ATTENDANT TO PLAINTIFF’S
DISCOVERY TO DEFENDANT STATE FARM LLOYDS
1. State Farm objects to the request for production in native format to the extent responsive
documents are not reasonably available in native format to State Farm in the ordinary
course of business. State Farm further objects pursuant to Tex. R. Civ. p. 196.4, in that it
would take unreasonable and extraordinary efforts to produce such documents in the form
requested. Notwithstanding this objection, State Farm agrees to produce in native format
pursuant to Tex. R. Civ. P. 196.4 to the extent responsive documents are reasonably
available in native format in the ordinary course of business. Documents that contain
redactions will not be produced in native format. Please also refer to objection number 6.
2. State Farm objects to Plaintiffs’ description of near native file types on the grounds that it
does not offer an alternative to native format. State Farm therefore incorporates by
reference the objection to protocol provision number 2 regarding the production of native
format above. (See paragraph 2.) State Farm further objects pursuant to Tex. R. Civ. P.
196.4, it is not required to produce ESI in near-native formats if it would take
unreasonable and extraordinary efforts to produce such documents in the form requested.
3. State Farm objects to Plaintiffs’ examples of near-native forms on the grounds they do
not represent an alternative to a native format. For those examples that represent native
forms sought, State Farm objects to the extent responsive documents are not reasonably
available in native format to State Farm in the ordinary course of business. State Farm
further objects pursuant to Tex. R. Civ. P. 196.4, on that it would take unreasonable and
extraordinary efforts to produce such documents in the form requested. Notwithstanding
this objection, State Farm agrees to produce in native format pursuant to Tex. R. Civ. P.
196.4 to the extent responsive documents are reasonably available in native format in the
ordinary course of business.
4, State Farm objects to this request because it is overboard and unduly burdensome. State
Farm further objects pursuant to Tex. R. Civ. P. 196.4, in that it would take unreasonable
and extraordinary efforts to produce such documents in the form requested.
Notwithstanding these objections, State Farm will produce database reports generated in
the ordinary course of business in the form they are normally used. State Farm agrees to
meet and confer prior to producing from databases as necessary.
5. State Farm objects to the production of information items in color to the extent it cannot,
through reasonable efforts, produce such items in the requested ibrmat pursuant to Tex.
R. Civ, P. 196.4. State Farm objects to the production request to the extent it requests
full extraction and OCR for redacted documents on the grounds it seeks attorney-client or
work product privileged materials. Notwithstanding these objections, State Farm notes
that any documents produced natively will retain any color existing in the original
document. State Farm agrees to extract the non-redacted content of each document by
optical character recognition (OCR) or other suitable method to a searchable text file
produced with the corresponding page image(s) or embedded within the image file. State
Farm further objects to Plaintiffs’ production request insofar as it directs State Farm to
undertake efforts that exceed the requirements of Tex. R. Civ. P. 193.3. State Farm will
withhold privileged material or information and describe the same in accordance with the
Texas Rules of Civil Procedure.
6. State Farm objects to Plaintiffs’ demand that Adobe Acrobat be used for redactions on
the grounds that using Adobe Acrobat will require unreasonable and extraordinary efforts
pursuant to Tex. R. Civ. P. 196.4.
7. State Farm objects to Plaintiffs’ demand for deduplication by MD5 hash value on the
grounds that it requires State Farm to undertake unreasonable efforts pursuant to Tex. R.
Civ. P. 196.4. State Farm will provide hash values but reserves the right to use an
alternative to MD5. With respect to the categories of information requested in the load
file, State Farm will produce such information to the extent the field values are available.
8. State Farm objects to Plaintiffs’ demand State Farm produce ESI on the medium
requiring the least number of deliverables in that it purports to impose obligations greater
than those set forth in the Texas Rule of Civil Procedure. State Farm further objects to
Plaintiffs’ request that State Farm organize productions by custodian because it would
require State Farm to undertake unreasonable and extraordinary efforts insofar as ESI is
not organized by custodian in State Farm’s ordinary course of business. Additionally,
State Farm objects to Plaintiffs’ request that all documents from an individual custodian
be delivered in a single load file on the grounds it is unduly burdensome and will cause
unnecessary delay in the production of documents in contravention ofTex. R. Civ. P. 1.
9. State Farm objects to the request to the extent it requires use of a dash (-) in the bates
numbering format on the grounds that it requires State Farm to undertake unreasonable
efforts pursuant to Tex. R. Civ. P. 196.4. State Farm also objects to this request with
respect to claim information on the grounds that it requires State Farm to undertake
unreasonable and extraordinary efforts pursuant to Tex. R. Civ. P. 196,4.
10. State Farm objects to Plaintiffs’ demand that the load file provide MD5 hash values on
the grounds that it requires State Farm to undertake unreasonable efforts pursuant to Tex.
R. Civ, P. 196.4. State Farm will provide hash values but reserves the right to use an
alternative to MD5. With respect to the categories of information requested in the load
file, State Farm will produce such information to the extent the field values are available.
DEFENDANT STATE FARM LLOYDS’ RESPONSES AND OBJECTIONS
TO PLAINTIFFS’ FIRST SET OF INTERROGATORIES
INTERROGATORY NO. 1. Identify all persons, address, including job title, dates of
employment, and a description of each individual’s role in the claim made the basis of this
Lawsuit, if any, for all persons providing information for the answers [sic] these interrogatories.
RESPONSE:
State Farm objects to this discovery as overly broad, irrelevant and not reasonably calculated to
lead to the discovery of admissible evidence. State Farm further objects to this question as it is
vague, ambiguous and overly broad in scope. Notwithstanding its objections, State Farm states
that this discovery is being answered by the signatory below, with the assistance of counsel.
INTERROGATORY NO. 2. Identify all persons and/or entities who handled the claim made
the basis of the Lawsuit on behalf of Defendant,
RESPONSE:
State Farm objects to the term “handled” as it is overly broad, vague, and unduly burdensome.
Notwithstanding any objections, the persons and/or entities who worked on this claim may be
found within the records produced from the Enterprise Claim System relative to Plaintiffs’ claim.
INTERROGATORY NO. 3. State the following concerning notice of claim and timing of
payment:
a. The date and manner in which Defendant received notice of the claim;
b. The date and manner in which Defendant acknowledged receipt of the claim;
c. The date and manner in which Defendant commenced investigation of the claim;
d. The date and manner in which Defendant requested from the Plaintiffs all items,
statements, and forms reasonably necessary that Defendant reasonably believed,
at the time, would be required from the Plaintiffs; and
e. The date and manner in which Defendant notified the claimant(s) in writing of the
acceptance or rejection of the claim;
f. To the extent Defendant felt it was applicable to this claim, did Defendant request
an additional 45 days to accept or reject the claim, and if so, for what reason and
state the date and manner in which Defendant made that request.
g. The date and manner in which you notified Plaintiffs of acceptance or rejection of
coverage for all or any portion of Plaintiffs’ claim; and
h. The date and manner of all payments made to insured, identifying whether
payment was made under structure, additional structure, contents and/or ALE
provisions.
RESPONSE:
State Farm received notice of this claim on or around June 19, 2013. Adjuster Fe]ipe Farias
contacted Plaintiffs on or around June 20, 2013, and inspected their property on or around June
26, 2013. Adjuster Farias advised the insured that the covered damage was below the deductible
at the inspection, and mailed the estimate and explanation of coverage to Plaintiffs on June 27,
2013.
INTERROGATORY NO. 4. Identify each inspection of the Property made the basis of this
Lawsuit by:
a. The name and job title of each person who inspected the Property;
b. The date of each inspection,
c. The purpose of each inspection; and
d. Any documents generated during or as a result of each inspection, including the
persons and/or entities in possession of those documents.
RESPONSE:
State Farm objects to this Interrogatory as it is overly broad, unduly burdensome, and not limited
in time and scope.
Subject to these objections, Plaintiffs’ property was inspected by adjuster Felipe Farias on or
about June 26, 2013, after Plaintiffs made a claim with State Farm Lloyds. Documents generated
from the inspection may be found within the records produced from the Enterprise Claim System
relative to Plaintiffs’ claim.
INTERROGATORY NO. 5. If Defendant is aware of documents that are not in Defendants
possession that are related the Claim and were gathered by a person or entity working on behalf
of Defendant (directly or indirectly), identify the documents, including the persons and/or
entities in possession of those documents with last known addresses.
RESPONSE:
State Fan-n is not aware of any such documents. If and when such documents become available,
State Farm will supplement this response.
INTERROGATORY NO. 6. State all dates on which Defendant closed Plaintiffs’ claim and to
the extent Defendant asserts statute of limitations as a defense, state all dates and manners in
which Defendant notified Plaintiff(s).
RESPONSE:
State Farm objects to this Interrogatory as it is overly broad, unduly burdensome, and State Farm
is not required to marshal its evidence. Subject to these objections, the file was closed on June
27, 2013,
INTERROGATORY NO. 7. Does Defendant contend that Plaintiff(s) failed to provide
proper notice of the claim made the basis of this Lawsuit under either the policy or the Texas
Insurance Code, and, if so, describe how the notice was deficient, identifying any resulting
prejudice caused to Defendant.
RESPONSE:
State Farm objects to this Interrogatory as it is overly broad, unduly burdensome, not reasonably
calculated to lead to the discovery of admissible evidence, and State Farm is not required to
marshal its evidence. Subject to these objections, Plaintiffs failed to provide notice in
accordance with Texas Insurance Code Section 541.
INTERROGATORY NO. 8. At the time the claim made the basis of this Lawsuit was
investigated by Defendant (and prior to the anticipation of litigation), describe Defendants
understanding of areas of the property (i.e., root interior) Defendant was investigating,
identifying the coverage sections (i.e., dwelling, other structure, ALE, contents, and/or code
upgrade) of the Policy upon which the claim was paid or denied.
RESPONSE:
State Farm objects to this Interrogatory as it is overly broad, unduly burdensome, and State Farm
is not required to marshal its evidence. Subject to these objections, Plaintiffs claimed that they
suffered from a leak in the bedroom and kitchen, as well as wind damage to the roof. Further
information regarding Plaintiffs’ claim may be found within the records produced from the
Enterprise Claim System relative to Plaintiffs’ claim.
INTERROGATORY NO. 9. Does Defendant contend that at the time the claim made the basis
of this Lawsuit was investigated by Defendant (and prior to anticipation of litigation), Plaintiffs
failed to protect the property from further damage or loss, make reasonable and necessary repairs
or temporary repairs required to protect the Property as provided under the Policy?
RESPONSE:
State Farm objects to this Interrogatory as it is overly broad, unduly burdensome, and State Farm
is not required to marshal its evidence. Subject to these objections, discovery in this matter is
ongoing, and State Farm will supplement this answer as more information becomes available.
Further information regarding Plaintiffs’ claim may be found within the records produced from
the Enterprise Claim System relative to Plaintiffs’ claim,
INTERROGATORY NO. 10. At the time the claim made the basis of this Lawsuit was
investigated by Defendant (and prior to anticipation of litigation), state whether the Plaintiff(s)
failed to exhibit/provide access to the Property as reasonably requested by Defendant, and, if so,
describe how Plaintiffs failed to do so, identifying any resulting prejudice caused to Defendant.
RESPONSE:
State Farm objects to this Interrogatory as it is overly broad, unduly burdensome, and State Farm
is not required to marshal its evidence. Subject to these objections, discovery in this matter is
ongoing, and State Farm will supplement this answer as more information becomes available.
Further information regarding Plaintiffs’ claim may be found within the records produced from
the Enterprise Claim System relative to Plaintiffs’ claim.
INTERROGATORY NO. 11. At the time the claim made the basis of this Lawsuit was
investigated (and prior to anticipation of litigation), identify all documents and information
requested from Plaintiff(s) stating the date and manner in which the request was made to
Plaintiffs. If Defendant contends that Plaintiff(s) failed to provide Defendant with requested
documents and/or information, identify all requests Plaintiffs did not respond and if Defendant
denied any portion of the claim based on Plaintiffs’ failure to respond.
RESPONSE:
State Farm objects to this Interrogatory as it is overly broad, unduly burdensome, and State Farm
is not required to marshal its evidence. State Farm further objects that this information is equally
accessible to Plaintiffs. Subject to these objections, information regarding Plaintiffs’ claim may
be found within the records produced from the Enterprise Claim System relative to Plaintiffs’
claim.
INTERROGATORY NO. 12. At the time the claim made the basis of this Lawsuit was
investigated (and prior to the anticipation of litigation), did Defendant request or take any
statements and/or examinations under oath of Plaintiff(s) as provided under the policy. If so,
state the date and manner in which Defendant made the request, the date on which any
statements or examinations under oath were taken and the manner in which they were recorded
or documented, identifying all persons who requested and/or took the statement or examination
under oath. If Defendant contends that Plaintiff(s) failed to provide Defendant with a requested
statement or examination, describe how Plaintiffs failed to comply with any requests, to the
extent it was relied upon to deny any portion of Plaintiffs’ claim.
RESPONSE:
State Farm objects to this Interrogatory as it is overly broad, unduly burdensome, and State Farm
is not required to marshal its evidence. State Farm further objects that this information is equally
accessible to Plaintiffs and duplicative of Plaintiffs’ Requests for Disclosure. Subject to these
objections, information regarding Plaintiffs’ claim may be found within the records produced
from the Enterprise Claim System relative to Plaintiffs’ claim.
INTERROGATORY NO. 13. At the time the claim made the basis of this Lawsuit was
investigated and the Property inspected (and prior to anticipation of litigation), describe all
damage attributable to the storm observed at the Property by Defendant or any persons or entities
on behalf of Defendant.
RESPONSE;
State Farm objects to this Interrogatory as it is overly broad, unduly burdensome, and State Farm
is not required to marshal its evidence. Subject to these objections, information regarding
Plaintiffs’ claim may be found within the records produced from the Enterprise Claim System
relative to Plaintiffs’ claim.
INTERROGATORY NO, 14. If you contend Plaintiff& damages claimed in this lawsuit are
the result of a prior insurance claim or prior unrepai red damage, please list all such prior claims
on the property made in the last ten years, including claim number, date of loss, type of loss, and
payments, if any, and identify which prior claim or claims you contend pertain to such damage.
RESPONSE:
State Farm objects to this Enterrogatory as it is overly broad, unduly burdensome, and State Farm
is not required to marshal its evidence. Subject to these objections, infbrmation regarding
Plaintiffs’ claim may be found within the records produced from the Enterprise Claim System
relative to Plaintiffs’ claim.
INTERROGATORY NO. 15. Identify all exclusions under the Policy applied to the claim
made the basis of this Lawsuit, and for each exclusion identified, state the reason(s) that
Defendant relied upon to apply that exclusion.
RESPONSE:
State Farm objects to this Interrogatory as it is overly broad, unduly burdensome, and State Farm
is not required to marshal its evidence. State Farm further objects as Plaintiff is impermissibly
attempting to shift the burden of proof onto State Farm. Subject to these objections, information
regarding Plaintiffs’ claim may be found within the records produced from the Enterprise Claim
System relative to Plaintiffs’ claim.
INTERROGATORY NO. 16. Describe how Defendant determined whether overhead and
profit (“O&P”) should be applied to the claim made the basis of this Lawsuit, identifying the
criteria for that determination.
RESPONSE:
State Farm objects to this interrogatory to the extent it purports to require State Farm to marshal
all of its evidence or state all its legal or factual assertions in answering it.
INTERROGATORY NO. 17. State whether sales tax was paid by Defendant on all
materials and/or labor and the method of calculation. To the extent this information is reflected
on an estimate, Defendant can refer Plaintiff(s) to such estimate.
RESPONSE:
State Farm objects to this interrogatory to the extent it purports to require State Farm to marshal
all of its evidence or state all its legal or factual assertions in answering it.
INTERROGATORY NO. 18. Identify all items on the claim made the basis of this
Lawsuit to which Defendant applied depreciation, stating for each item the criteria used and the
age of the item.
RESPONSE:
State Farm objects to this interrogatory to the extent it purports to require State Farm to marshal
all of its evidence or state all its legal or factual assertions in answering it.
INTERROGATORY NO. 19. To the extent Defendant utilized an estimating software and
modified the manufacturer’s settings with respect to Plaintiffs’ claim, identify those
modifications.
RESPONSE:
State Farm objects to this interrogatory because it is vague and overly broad in scope. State
Farm objects to his interrogatory because it appears to be seeking confidential, proprietary
business information and trade secrets. As presently worded, the interrogatory is not relevant, nor
is it reasonably calculated to lead to the discovery of admissible evidence.
INTERROGATORY NO. 20. State whether Defendant applied depreciation to the tear off
of the damaged roof andlor other debris removal in the claim made the basis of this Lawsuit,
identifying the basis for that depreciation and the applicable policy section under which the tear
off was paid under.
RESPONSE:
State Farm objects to this interrogatory to the extent it purports to require State Farm to marshal
all of its evidence or state all its legal or factual assertions in answering it.
INTERROGATORY NO. 21. Identify all price lists used to prepare all estimates on the
claim made the basis of this Lawsuit, stating the manufacturer, version, date and geographical
area. For any price list developed by a third party vendor, identify any additions, deletions,
alterations or modifications made by Defendant, describing the change and purpose of the
change for preparing an estimate on the claim made the basis this Lawsuit.
RESPONSE:
State Farm objects to this interrogatory, as it is overly broad in scope, not relevant nor reasonably
calculated to lead to the discovery of admissible evidence and seeks information that is
confidential, proprietary and trade secret. Further, the information sought is not the property of
State Farm but is owned by Xactware®.
INTERROGATORY NO. 22. State whether of any persons and/or entities who handled
the claim made the basis this Lawsuit failed to follow any rules, guidelines, policies, or
procedures implemented by Defendant for the Webb County hail storms occurring on or about
June 7,2013 and/or .June 14, 2013 in regards to the adjustment of this claim. If so, identify each
person and the specific rule, guideline, policy, or procedure that was violated.
RESPONSE:
State Farm objects to this interrogatory to the extent it purports to require State Farm to marshal
all of its evidence or state all its legal or factual assertions in answering it. State Farm also
objects to this interrogatory as it is argumentative and seeks legal conclusions. Additionally,
State Farm objects to this interrogatory to the extent it violates the attorney-client or work
product privileges.
INTERROGATORY NO. 23. To the extent Defendant is aware, state whether the
estimate(s) prepared for the claim made the basis this Lawsuit failed to identify, note, or
document any storm related damage at the Property. If so, identify each item of damage that was
not properly identified, noted, or documented.
RESPONSE:
State Farm objects to this interrogatory to the extent it purports to require State Farm to marshal
all of its evidence or state all its legal or factual assertions in answering it. Subject to these
objections, information regarding Plaintiffs’ claim may be found within the records produced
from the Enterprise Claim System relative to Plaintiffs’ claim.
INTERROGATORY NO. 24. To extent Defendant is aware, state whether the estimate(s)
prepared for the claim made the basis of lawsuit wrongly included or excluded any item or
payment, If so, identify each item or payment and state whether it should have been included or
excluded from the estimates prepared on the claim made the basis this Lawsuit.
RESPONSE:
State Farm objects to this interrogatory to the extent it purports to require State Farm to marshal
all of its evidence or state all its legal or factual assertions in answering it. Subject to these
objections, information regarding Plaintiffs’ claim may be found within the records produced
from the Enterprise Claim System relative to Plaintiffs’ claim.
INTERROGATORY NO. 25. To the extent Defendant is aware, state any violations of
Texas Insurance Code Section 541 that were discovered on this claim during the claims handling
process.
RESPONSE:
State Farm objects to this interrogatory to the extent it purports to require State Farm to marshal
all of its evidence or state all its legal or factual assertions in answering it. State Farm also
objects to this interrogatory as it is argumentative and seeks legal conclusions. Additionally,
State Farm objects to this interrogatory to the extent it violates the attorney-client or work
product privileges.
INTERROGATORY NO. 26. To the extent Defendant is aware, state any violations of
Texas Insurance Code Section 542 that were discovered on this claim during the claims handling
process.
RESPONSE:
State Farm objects to this Interrogatory as it exceeds the permissible number of Interrogatories
that may be propounded. State Farm further objects to this Interrogatory to the extent it purports
to require State Farm to marshal all of its evidence or state all its legal or factual assertions in
answering it. State Farm also objects to this interrogatory as it is argumentative and seeks legal
conclusions. Additionally, State Farm objects to this interrogatory to the extent it violates the
attorney-client or work product privileges.
INTERROGATORY NO. 27. To the extent Defendant is aware, state any violations of
the requirements or obligations owed to Plaintiff(s) under the Policy relating the claim made the
basis of this Lawsuit that were discovered during the claims handling process.
RESPONSE:
State Farm objects to this Interrogatory as it exceeds the permissible number of Interrogatories
that may be propounded. State Farm further objects to this interrogatory because it seeks factual
conclusions that are within the province of the jury and is an attempt by Plaintiff to shift the
burden of proof. State Farm objects to this interrogatory as it is argumentative, vague and
ambiguous, and seeks legal conclusions. Additionally, State Farm objects to this interrogatory to
the extent it violates the attorney-client or work product privileges.
INTERROGATORY NO. 28. State the date Defendant first anticipated litigation.
RESPONSE:
State Farm objects to this Interrogatory as it exceeds the permissible number of Interrogatories
that may be propounded.
INTERROGATORY NO. 29. Identify all evidence that may be used to impeach, by proof
of final conviction of any felony or crime of moral turpitude, of any witness, including any party
witness, by stating the following identifying information, pursuant to Tex. R. Evid. 609:
a. the name of the accused;
b. the charged offense;
c. whether the crime was a felony or involved moral turpitude;
d. the date of final conviction; and
e. the style, case number, and county of the proceeding.
RESPONSE:
State Farm objects to this Interrogatory as it exceeds the permissible number of Interrogatories
that may be propounded.
INTERROGATORY NO. 30. Identify any and all witnesses who may be called to testify
at trial pursuant to Rule 192.3(d) of the Texas Rules of Civil Procedure.
RESPONSE:
State Farm objects to this Interrogatory as it exceeds the permissible number of Interrogatories
that may be propounded. State Farm further objects as this request is premature. State Farm will
produce such information in accordance with the Court’s scheduling order.
INTERROGATORY NO. 31. Pursuant to Rule 1 2.3(e) of the Texas Rules of Civil
9
Procedure, for each consulting expert, or expert who is not expected to be called as a witness but
whose work product 1) forms the basis either in whole or in part of the opinions of an expert who
is to be called as a witness and/or 2) has been reviewed or relied upon by a testifying expert
witness, please state:
a. The name, address, and telephone of such expert;
b. The number of times that expert has been retained by a defendant in any case;
c. The number of times that expert has been retained by a plaintiff in any case;
d. The number of times that expert has been retained by the attorney representing
any Defendants in this suit;
e. The number of times that expert has been retained by the law firm representing
any Defendants in this suit; and
f. The amount of compensation received or to be received in this case.
RESPONSE:
State Farm objects to this Interrogatory as it exceeds the permissible number of Interrogatories
that may be propounded.
INTERROGATORY NO. 32. If you contend that the Policy is void for any reason, state
the specific factual bases for that contention, identifying any and all investigations, the factors
considered and the conclusion reached and the evidence that is the basis for that conclusion.
RESPONSE:
State Farm objects to this Interrogatory as it exceeds the permissible number of Interrogatories
that may be propounded. State Farm further objects to this Interrogatory to the extent it purports
to require State Farm to marshal all of its evidence or state all its legal or factual assertions in
answering it. State Farm also objects to this interrogatory as it is argumentative and seeks legal
conclusions. Additionally, State Farm objects to this interrogatory to the extent it violates the
attorney-client or work product privileges.
INTERROGATORY NO. 33. If you contend that the Plaintiffs made any
misrepresentation regarding the Policy or the claim made the basis of this Lawsuit, state what
specific misrepresentation(s) was/were made and the factual bases for your contention.
RESPONSE:
State Farm objects to this Interrogatory as it exceeds the permissible number of Interrogatories
that may be propounded. State Farm further objects to this Interrogatory to the extent it purports
to require State Farm to marshal all of its evidence or state all its legal or factual assertions in
answering it. State Farm also objects to this interrogatory as it is argumentative and seeks legal
conclusions. Additionally, State Farm objects to this interrogatory to the extent it violates the
attorney-client or work product privileges.
AUG. 9. 2G14 Q:4OAM STATE FARM iO. 3Q5 P. 3
STATE FARM LLOYDS
By______
RAY ADILLA
VERIFICATION
THE STATE OF TEXAS §
§
COUNTY OF BEXAR §
BEFORE ME, the undersigned authority, on this day personally appeared, RAY
PADILLA for State Farni Lloyds, Defendant in the above-entitled and numbered cause, being by
me duly sworn, upon oath deposed and said that he has read the Objections and Responses to
Plaintiff’s lnterroga.tories, and they are true and correct.
SUBSCRIBED AND SWORN TO BEFORE ME by the said RAY PADILLA on this the
oiQJIj. , 2014.
Notary Public, State of Texas
I wcims.Ww
— 1401a*lrtL2Otl
CAUSE NO. 2O14CVFOO1 162-Di
RAUL RODRIGUEZ AND NOEMI § IN THE DISTRICT COURT OF
RODRIGUEZ, §
Plaintiffs, §
§
VS. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS §
AND FELIPE FARIAS §
Defendants. § 49’ JUDICIAL DISTRICT
AFFIDAVIT OF TERRI BURGER
BUSINESS RECORDS
Personally, appeared before the undersigned officer, duly authorized by law to administer
oaths, caine Tern Burger, who, upon being duly sworn, states and deposes of her own personal
knowledge as follows:
My name is Teni Burger. I am an Underwriting Team Manager and my office is located
at 8900 Amberglen Boulevard, Austin, Williamson County, Texas, 78729. I am of sound mind,
over the age of 18 years, have never been convicted of a felony or crime of mor& turpitude and
am competent to make this affidavit. Further, this affidavit is true and correct based upon my
personal knowledge of the matters set forth herein.
2.
I am a custodian of records for State Farm Lloyds. The attached are records from policy
number 83-BA-F091-1 issued by State Farm Lloyds to Raul Rodriguez, for the policy period of
October 19, 2012 to October 19, 2013. The 51 pages of records which are attached to this
affidavit were kept under my care, supervision, direction, andlor control and were kept by State
Farm Lloyds in the regular course of its business. The memoranda, reports, notations and entries
contained in these records were made at or near the time of the event reflected in these records or
reasonably soon thereafter. It was in the regular course of business of State Farm Lloyds to have
employees or representatives acting for or on behalf of State Farm Lloyds with knowledge of the
act or event to make the memoranda, reports, notations, and entries contained in these records, or
to transmit information concerning these matters to other employees or representatives of State
Farm Lloyds designated to receive the infoiie purpose of including it in the records of
WE1
thedayof2o15
A ESTHER DEG
CI r t istrict C rts and BRA00000I
By JWeputy
__________
State Farm Lloyds. The records attached hereto are a reproduction of the original or exact
duplicates of the original.
3.
The 51 pages of records attached are true and correct reproductions of the business records
as described in this affidavit.
Further Affiant Sayeth Naught.
Signed this day of
Tern Burger
SWORN TO AND SUBSCRIBED before me, the undersigned authority, on this day of
2014, by Tern Burger, who is personally known to me to be the
,
person
whose namls subscribed to this document.
t’( M ‘1
NOTARY PUBLIC j
COMMISSION EXPIS: ‘
Page 2
BRA000002
rh
I 1
1/22/0153: 4PM
ptIer g lado
1 Dist Clerk
‘Wbb D1ii.
2014-CVF-001 162-Di
0
Cited
As of: Jun 19, 2014
In re State Farm Lloyds
NO. 09-03-3 11 CV
COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT
2003 Tex. App. LEXIS 8115
September 18, 2003, Opinion Delivered
DISPOSITION: [*1] WRIT OF MANDAMUS During the course of discovery in the underlying
DENIED. litigation, Cause No. E-166, 963, Grace Tabernacle
United Pentecostal Church International v. State Farm
COUNSEL: Clint W. Lewis, Lewis & Associates, Insurance Companies, et al., the plaintiff sought
Beaumont. Christopher W. Martin, Martin, Disiere, production of certain documents. Because the documents
Jefferson & Wisdom, Houston, for relator. comprised trade secrets or proprietary information, the
trial court issued a protective order that restricted
Michael Ramsey, Provost, Umphrey Beaumont. John disclosure of [*21 the “classified information” to “the
Cowan, Provost, Umphrey, Beaumont. J. Steve Mostyn, currently named parties, their respective counsel, and
Houston, for real party in interest. expert witnesses the parties anticipate calling at tnal m
this litigation or any related litigation against Defendants
JUDGES: Before McKeithen, C.J., Burgess and in which Plaintiffs counsel is an attorney of record.”
Gaultney, JJ. Objecting to the “related litigation” clause in the
protective order, State Farm filed this petition for writ of
OPINION Mandamus. Because we conclude the trial court’s order
adequately protected State Farm from the mvoluntary
Original Proceeding
disclosure of its trade secrets, we hold that the trial court
MEMORANDUM OPINION’ did not abuse its discretion in this matter. See In re Eli
Lilly Co. v. Marshall, 850S. W2d 155, 36 Tex. Sup. Ct. I
1 TEX R. APP, P. 47.4. 507 (Tex. 1993); Garcia v. Peeples, 734 5. W2d 343, 30
Tex. Sup. Ct. 1 591 (Tex. 1987). We deny the petition for
State Farm Lloyds seeks a writ of mandamus writ of mandamus.
commanding the Honorable Donald Floyd, Judge for the
172nd District Court of Jefferson County, to vacate a WRIT DENIED.
protective order and to issue a different protective order
that restricts the use and disclosure of certain privileged PER CURIAM
documents to the specific case before the trial court. For
the reasons stated below, we deny relief.
ue c
py of te-r4 certi,
9
the - hL2( day oL 20 ,LL
(I ESTIR DEG&LAo /
C / IFP,DswW p1nJ 4
nt
By
De
TAB 7
OF THE RECORD
Filed
2/1O/20152:32:57PM
Esther Degollado
District Clerk
Webb District
2014CVF001048 Dl
NO. 2014CVF001048-D1
ALMA PENA, § IN THE DISTRICT COURT
Plaintiff §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND BECKY §
LANIER, §
Defendants § 49TH JUDICIAL DISTRICT
DEFENDANTS’ RESPONSE AND OBJECTIONS TO
PLAINTIFF’S MOTION FOR PROTECTIVE ORDER AND
MOTION FOR ENTRY OF STATE FARM’S PROPOSED PROTECTIVE ORDER
TO THE HONORABLE JUDGE OF THIS COURT;
Defendants State Farm Lloyds (“State Farm”), Becky Lanier (collectively, “Defendants”)
file their Response and Objections to Plaintiff’s Motion for Protective Order and Motion for
Entry of State Farm’s Proposed Protective Order. In support thereof, and pursuant to the Texas
Rules of Civil Procedure, Defendants show as follows;
I.
INTRODUCTION
1. The case presently before the Court is a suit arising out of a wind/hail insurance
claim Plaintiff filed with State Farm. Defendants object to the entry of Plaintiff’s Proposed
Protective Order because it is inadequate. By insisting that State Farm produce or disclose
Confidential Information without an appropriate and standard agreement that such information is
confidential and should be handled accordingly, Plaintiff has put State Farm in an impossible
position; State Farm can either disclose its protected materials without the basic protections that
they warrant, and risk losing the confidential or trade secret status of the materials, or State Farm
must withhold relevant discovery and risk sanctions from the Court.
J
2. The three-part argument Plaintiff offer in support of their proposed order is
conclusory, and ultimately the Protective Order proposed by Plaintiff does not meet the criterions
Plaintiff proffered.
3. First, Plaintiff argues that “Plaintiff’s Proposed Protective Order provides all
parties, including State Farm Lloyds, with adequate protection from disclosure of trade secret or
proprietary information.” (See Plaintiff’s Motion, at ¶ 2.A.) 1-lowever, Plaintiff’s Proposed
Protective Order is deficient in its protections of Confidential Information, while State Farm’s
Proposed Protective Order provides more complete protections, particularly with regard to
electronically stored information (“ESJ”), and better overall procedures. Specifically, Plaintiff’s
Proposed Protective Order does not provide adequate procedures because:
i. It does not contain terms related to the designation and handling of electronically
stored information (“ESI”) that is confidential, proprietary, or trade secret.
ii. It fails to recognize all persons whom will ordinarily handle Confidential
Information during the course of this litigation.
iii. It overlooks important procedures regarding the handling of Confidential
Information and the duties of the parties that clearly should be preserved.
4. Second, Plaintiff argues that “Plaintiff’s Proposed Protective Order is consistent
with the protective order entered and used for substantially similar litigating involving Plaintiff’s
counsel and State Farm.” (See Plaintiff’s Motion, at ¶ 2.B.) However, Plaintiff fails to advise
the court that State Farm has consistently objected to the sharing provisions put forward by
Plaintiff, and the lack of safeguards for their Confidential Information following the
resolution of each matter.
5. Third, Plaintiff argues that “Plaintiff’s Proposed Protective Order contains a
‘Shared Discovery’ provision which will provide for more efficient discovery.” (See Plaintiff’s
Motion, at ¶ 2.C.) However, the wide-spread sharing of Confidential Information greatly
increases the risk that such information will be improperly disclosed, dilutes the Court’s ability
to monitor and enforce the protections of a protective order, and poses an unreasonable risk to
State Farm’s property rights. State Farm is entitled to a confidentiality order that will reasonably
limit the dissemination of its confidential information.
6. With few exceptions, State Farm’s Proposed Protective Order (see Exhibit A)
includes the terms proposed by Plaintiff but also adds much needed procedures that will ensure
all forms of State Farm’s Confidential [nformation are protected, regardless of the mode of
production, without any adverse impact to the Plaintiff. For these reasons, Defendants
respectfully request this Court to deny Plaintiff’s Motion for Entry of a Protective Order and
move the Court to enter State Farm’s Proposed Protective Order in this case.
II.
ARGUMENT & AUTHORITIES
7. Texas law encourages courts to grant protective orders to “protect [a] movant
from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal,
constitutional, or property rights.” Tex. R. Civ. P. § 192.6(b). Under the Texas discovery rules,
privileged information is not discoverable. See Tex. R. Civ. P. 192.3(a) (defining general scope
of discovery as “any matter that is not privileged and is relevant to the subject matter of the
pending action ....“) (emphasis added). Before a court can permit discovery of any confidential,
trade secret, or proprietary information, a plaintiff must first establish the threshold requirements
of relevance and a particularized need to discover the information and documents. In re
Continental Gen’l Tire, 979 S.W.2d 609, 610-11 (Tex. 1998); In re Union Fac/ic, 249 S.W.3d
589, 592 (Tex. 2009) (a plaintiff must demonstrate the information sought is “material and
See Exhibit B attached hereto for a paragraph-by-paragraph comparison of Plaintiffs Proposed
Protective Order and State Farm’s Proposed Protective Order.
necessary” to presentation of the case in which it is sought). This is a case-specific inquiry. See
In re Allstate County Mu!. Ins. Co. 227 S.W.3d 667, 668 (Tex. 2007) (granting mandamus in
case involving overbroad requests for insurer personnel files and emphasizing that trial courts
“must make an effort to impose reasonable discovery limits”); In re CSX Corp., 124 S.W.3d 149,
152 (Tex. 2003) (holding party requesting discovery has burden of demonstrating that the
discovery is “tailored to include only matters relevant to the case”). Once the necessary
thresholds are established, a trial court’s duty is to protect confidential and trade secret
documents through an appropriate protective order. Garcia v. Peeples, 734 S,W.2d 343 (Tex,
1987).
8. The Texas Supreme Court has explicitly recognized that confidential information
can and should be the subject of an appropriately tailored protective order. See In re George, 28
S.W.3d 511, 514 (Tex. 2000) (“We recognize that the possibility exists that the disqualified
attorneys could conceivably have revealed confidential information in discovery,
correspondence, or other documents. If this has happened, the former client can protect
against this disclosure ... by seeking a protective order under Texas Rule of Civil Procedure
192.6.”) (emphasis added). Other courts from around the state and nation also routinely provide
protection over the exchange of confidential materials during discovery. (See, e.g., Exhibit C,
Southern District of Texas form Protective Order, at p. 1 (protecting confidential information);
see also Exhibit D, Western District of Texas form Confidentiality and Protective Order, at pp.
2-3, protecting “information that the party in good faith believes in fact is confidential.”) As
discussed below, the information Plaintiff seeks from State Farm is confidential, proprietary, and
deserving of protection.
9. In addition, Texas law defines a trade secret as “any formula, pattern, device or
compilation of information which is used in one’s business, and which gives him an opportunity
to obtain an advantage over competitors who do not know or use it” Hyde Corp. v. Hu/jines,
158 Tex. 566, 314 S.W.2d 763, 776 (1958); accord In re Bass, 113 S.W.3d 735, 739 (Tex. 2003)
(orig. proceeding); see also Tex. Civ. Rem. & Prac. Code § 134A.002(6) (the recently enacted
Texas Uniform Trade Secrets Act defines a trade secret as any “information, including a formula,
pattern, compilation, program, device, method, technique, process, financial data, or list of actual
or potential customers or suppliers that (A) derives independent economic value, actual or
potential, from not being generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from its disclosure or use; and (B) is the
subject of efforts that are reasonable under the circumstances to maintain its secrecy.”). As
discussed below, the information Plaintiff seeks from State Farm is not only confidential and
proprietary, but also contains trade secret information, deserving of protection.
10. The Texas Supreme Court described an “appropriate” protective order as one that
“limits access to the information to the parties in [the instant] litigation, their lawyers,
consultants, investigators, experts and other necessary persons employed by counsel to assist in
the preparation of this case.” In re Continental Gen’l Tire, 979 S.W,2d at 613, n. 3 (emphasis
added); see also Zappe v. Medironic USA, Inc., No. C-08-369, 2009 U.S. Dist. LEXIS 23727(S.D. Tex. March 23, 2009) (noting the Texas Supreme Court’s move away from Garcia and
entering a protective order that restricted the sharing of information). Moreover, an
“appropriate” protective order requires return of the documents at the end of the case and
requires that each person given access to the trade secret information agree in writing to maintain
the information as confidential. In re Continental Gen’l Tire, 979 S.W.2d at 613, n.3; see also In
re Remington Arms Co., 952 F.2d 1029, 1033 (8th Cir. 1991) (describing “appropriate”
protective order for trade secrets as one that limits use to the case at hand, limits persons to
whom trade secrets are disclosed and forbids reproduction of documents containing trade secret
information).
A. State Farm’s business information warrants confidential treatment.
11. State Farm has produced non-privileged claim-specific documents from its
Enterprise Claim System and the relevant insurance policy. State Farm disagrees that the scope
of all of Plaintiffs discovery requests are proper; however, State Farm is willing to produce
additional responsive documents that are potentially relevant to the issues in this litigation,
including policies, procedures, and training materials applicable to the adjustment of claims
arising out of the weather event at issue a proper protective order is entered in this case.
12. State Farm’s Confidential Information warrants trade secret status because (1) the
information is not known outside of State Farm or by others who compete with State Farm (i.e.,
other insurance carriers); (2) State Farm takes reasonable efforts to guard the secrecy of this
information (such as not sharing it with others absent an appropriate confidentiality agreement or
protective order, as is the case here); (3) this information is valuable to State Farm because it is
vital to the efficient analysis and processing of claims; (4) State Farm has invested significant
amounts of time, human resources, and money developing and implementing the systems
described above; and (5) the information described above would not easily be acquired or
duplicated by others. In re Bass, 113 S.W.3d at 737.
13. Indeed, under Texas law, a trade secret is at risk of losing its trade secret status if
its owners are not diligent in their efforts to protect its secrecy or otherwise treat it as
confidential. Id. (factors relevant to determining whether a trade secret exists include, among
other things, the extent of the measures taken by the party to guard the secrecy of the
information). In recognition of an owner’s responsibility to protect its trade secrets, and in
addition to Tex. R. Civ. P. § 192.6(b) discussed above, the Texas Rules of Evidence specifically
provide that a litigant may claim a privilege to refuse to disclose a trade secret so long as the
allowance of the privilege will not tend to conceal fraud or otherwise work injustice. See Tex. R.
Evid. 507. “When disclosure is directed, the judge shall take such protective measure as the
interests of the holder of the privilege and of the parties and the furtherance ofjustice may
require.” Id (emphasis added); see also Tex, Civ. Rem, & Prac. Code § 1 34A.006 (the recently
enacted Texas Uniform Trade Secrets Act providing that “ftJhere is a presumption in favor of
granting protective orders to preserve the secrecy of trade secrets. Protective orders may
include provisions limiting access to confidential information to only the attorneys and their
experts, holding in camera hearings, sealing the records of the action, and ordering any person
involved in the litigation not to disclose an alleged trade secret without prior court approval.”)
(emphasis added).
14. To be clear, State Farm is not refusing to share its responsive confidential and
proprietary information outright; it is merely requesting an appropriate confidentiality order that
would allow it to do so without sacrificing the protections Texas law plainly affords. With few
2 State Farm’s Proposed Protective Order (see Exhibit A) includes the terms proposed
exceptions,
by Plaintiff and simply adds much needed procedures that will ensure the protection of all forms
of State Farm’s Confidential Information regardless of the mode of production, without any
adverse impact to the Plaintiff. Thus, there is no principled basis for Plaintiff’s opposition.
2
For the reasons stated in Section Il. E. infra, State Farm does not agree to the broad sharing provisions
included in Plaintiff’s Proposed Protective Order.
B. State Farm’s Proposed Protective Order addresses the designation and handling of
ES! that contains Confidential Information.
15. Plaintiff has requested that State Farm produce ES! responsive to the discovery
requests, but Plaintiff’s Proposed Protective Order does not fully protect the confidential ESI
State Farm will produce. Critically, Plaintiffs Proposed Protective Order is inadequate with
respect to the handling of ES! for five reasons.
16. First, the general protections for Confidential Information should be met by
limiting the unnecessary duplication of Confidential Information. ESI can be duplicated and
circulated with ease, which increases the risk that confidential, propriety, or trade secret
information will be disclosed in violation of the protective order. The last sentence of
paragraph I of State Farm’s Proposed Protective Order strengthens the general protections
afforded by the order by expressly limiting unnecessary duplication and limiting the receiving
party’s right to use other parties’ Confidential Information to the current litigation. This is ever
more important in light of the increased volumes of ES! in litigation. As such, the provisions are
in line with the protections contemplated by Rule 5O7 and should be adopted by the Court.
17. Second, Plaintiffs definition of Confidential Information does not specifically
include ES!. ESI is distinct from hard copy documents or other information. For this reason, the
Court should find that Plaintiffs Proposed Protective Order, which fails to account for the need
to protect ESI, is deficient, and instead adopt paragraph 2 of State Farm’s Proposed Protective
Order.
18. Third, the protective legend that Plaintiff proposes the parties append to the file
name (see Exhibit E, at ¶ 6) is so lengthy that it is unmanageable, and there is a risk the Windows
operating system will cut it short. The Windows operating system has a 255 character limit for
See paragraph 8 supra.
the combined file name and file path information, When Plaintiff’s proposed legend in
subparagraph 6.c is combined with standard path, file name, and Bates identifier information, it
is very likely the combined information will exceed 255 characters. State Farm has proposed
that the protective legend stop after the cause number. State Farm’s proposed protective legend
will allow the parties to accurately identify electronic files and the matter in which the file was
produced, and is not likely to exceed the Windows 255 character limit. Consequently, State
Farm requests the Court reject Plaintiff’s proposed paragraph 6 and accept the paragraph 6
proposed by State Farm.
19. Fourth, Plaintiff’s Proposed Protective Order fails to require the destruction of
confidential ESI if it is improperly disclosed to a non-Qualified Person. (See Exhibit E, at ¶ 7.)
Since it would be impractical to return copies of confidential ESI once it is placed on new
, it is essential that all non-authorized copies of confidential ESI be destroyed in order to
4
media
ensure the confidentiality of the information contained on the unauthorized media. Paragraph 8
of State Farm’s Proposed Protective Order specifically requires a party that improperly discloses
Confidential Information to a non-Qualified Person to request the destruction of any such ESI.
This procedure enhances the safeguards for Confidential Information, without impacting the
rights of the parties to use such information during the course of this litigation. This type of
language is typical and non-controversial in other cases. For that reason, The Court should adopt
the terms of paragraph 8 of State Farm’s Proposed Protective Order that provide for the
destruction of ES! that contains Confidential Infbrmation.
20. Fifth, Plaintiff’s Proposed Protective Order is impractical because it omits clear
procedures for the destruction or return of State Farm’s Confidential Information after the
In order to return confidential ESI, the receiving party would have to turn over the actual media, such as
the computer hard drive, that contains the copy of the confidential ESI.
resolution of the matter, Plaintiff’s proposal effectively grants an unlimited use license to each
plaintiff or their counsel to retain and use all State Farm Confidential Information received for an
unlimited period of time. Such unlimited use is clearly beyond the scope of use necessary for the
fair adjudication of this matter and should not be allowed. See generally In re
Bridgestone/Firestone, Inc., 106 S.W.3d 730 (Tex. 2003, orig. proceeding). The causes of action
asserted in this litigation require proof of State Farm’s alleged misconduct with regard to this
particular Plaintiff only and return of confidential materials at the end of this litigation will not
hamper Plaintiff’s ability to examine witnesses or prove the elements of their case. Paragraph 20
in State Farm’s Proposed Protective Order reasonably provides that within forty-five days of the
final adjudication of the matter, all the confidential, proprietary and trade secret material
produced or disclosed by State Farm in the course of this litigation must be returned or
destroyed. Because Plaintiff’s Proposed Protective Order is not reasonably tailored to protect
State Farm’s Confidential Information after this litigation concludes, the Court should deny
Plaintiff’s request for entry of Plaintiff’s Proposed Protective Order and adopt paragraph 20 from
State Farm’s Proposed Protective Order.
C. The confidentiality order should address all persons to whom it will be provided.
21. A protective order is easily vitiated without specific procedures to enforce the
handling of protected information. The protective order entered by this Court should recognize
all persons who reasonably will be required to handle Confidential Information in this matter,
and designate only those persons as “Qualified Persons.” Plaintiff’s definition of “Qualified
Person” is both unreasonably under-inclusive and improperly over-inclusive in light of the facts
of this case.
22. Plaintiff’s definition of Qualified Persons is under-inclusive because it omits
counsel’s staff; outside service-providers and consultants providing services related to document
and ESI processing, hosting, review, and production; the Court; other court officials (including
court reporters); and the trier of fact pursuant to a sealing order. Persons in all of these
categories naturally will receive Confidential Information during the course of this litigation.
Thus, it is unreasonably under-inclusive to omit them from the protective order from the outset.
For these reasons, the Court should accept paragraph 3 in State Farm’s Proposed Protective
Order.
23. For the reasons stated in section E. below, Plaintiff’s inclusion of parties to other
litigation (including State Farm’s competitors) within the definition of Qualified Persons is
improperly over-inclusive and should be rejected by the Court.
D. The Protective Order should clearly preserve the general rights and duties of the
parties.
24, State Farm’s Proposed Protective Order includes additional terms that provide
clear and consistent procedures regarding the handling of Confidential Information throughout
the litigation.
25. First, State Farm’s Proposed Protective Order adds paragraph 9 which
acknowledges that information in its possession, custody, or control may be the confidential
information of non-parties. State Farm’s proposed paragraph 9 acknowledges the general duties
that a party may owe to a non-party to protect the confidentiality of the non-party’s Confidential
Information provided. Such practical duties do not impinge on the interest ofjustice in this case.
Therefore, State Farm requests that the Court adopt paragraph 9 of State Farm’s Proposed
Protective Order.
26. Second, State Farm modified paragraph 10 to ensure that all Qualified Persons
may remain during testimony regarding Confidential Information provided they are otherwise
entitled to attend the deposition. Plaintiff’s proposed paragraph 10 impractically limits the
persons that can attend a deposition during testimony regarding Confidential Information. Under
Plaintiff’s proposal, all persons other than “the court reporter, the witness being deposed, counsel
for the parties and any expert entitled to attend,” must leave the room, even if they are a
Qualified Person who is otherwise entitled to attend the deposition. For example, it is common
practice to have a party representative attend depositions and party representatives are Qualified
Persons under the terms of Plaintiff’s Proposed Protective Order. There is no reason to exclude
Qualified Persons from a deposition if they are otherwise entitled to attend the deposition. The
simplified procedure provided in State Farm’s proposal clarifies the standard procedures and
rights related to depositions. For these reasons, the Court should adopt the terms of paragraph 10
of State Farm’s Proposed Protective Order.
27. Third, State Farm proposed paragraph 13 expands upon paragraph 9 of Plaintiff’s
Proposed Protective Order and provides that a receiving party must have a good-faith basis to
request that Confidential information be re-designated. This requirement is clearly contemplated
under the rules and therefore State Farm requests that the Court adopt its paragraph 13.
28. Fourth, State Farm amended paragraph 14 of Plaintiff’s Proposed Protective
Order (cf Exhibit A, at ¶ 15) regarding the procedure for the Court to hear objections to any
designation. These amended provisions extend the deadline to thirty days so that it is consistent
with other time requirements in the protective order. The paragraph otherwise parallels the
Plaintiff’s proposal, and State Farm requests that the Court adopt its paragraph 15 in order to
simplify the administration of this case.
29. None of State Farm’s proposed additions and changes impinge upon the rights of
Plaintiff. Rather, they help protect the rights of all parties and streamline procedures in this case.
Because Plaintiff has no practical or legal basis to object to these terms, Plaintiff’s objections
merely obstruct the unbiased adjudication of this matter.
E. Plaintiff’s Proposed Protective Order provides for improper sharing of confidential,
proprietary, or trade secret information outside of this litigation.
30. State Farm will be prejudiced, and its property interests in its Confidential
Information are likely to be compromised, if Plaintiff’s counsel is allowed to share State Farm’s
Confidential Information outside of this litigation. The wording in paragraph I of Plaintiff’s
Proposed Protective Order allows Plaintiff’s counsel to share State Farm’s confidential and
proprietary information directly with any party, attorney, or expert witness “arising out of
hailsiorms and/or windstorms in Texas with a date of loss in 2013, andfor no other purpose.”
The Protective Order specifically states:
“Related Litigation” means a first-party lawsuit in Texas by an insured against
State Farm Lloyds and its adjusters or adjusting companies that produced the
Confidential Information for damages to insured property arising out of
hailstorms and/or windstorms in Texas with a date of loss in 2013.
Confidential Information shall not be disclosed to any person except in
accordance with the terms of this Order.
(See Exhibit E, at ¶ 1.) The wide-spread sharing of Confidential Information greatly increases
the risk that such information will be improperly disclosed, dilutes the Court’s ability to monitor
and enforce the protections of a protective order, and poses an unreasonable risk to State Farm’s
property rights. State Farm is entitled to a protective order that will reasonably limit the
dissemination of its confidential information.
31. Plaintiff cites In re State Farm L1oyd, No. 09-03-3 11 -Cv, 2003 Tex, App.
LEXIS 8115 at *12 (Tex. App—Beaumont Sept. 18, 2003, orig. proceeding), to justify their
proposed provisions for sharing discovery. However, in that case the Court of Appeals merely
made a conclusory holding, without providing any substantive analysis that shared discovery was
permissible in that case. That holding was never reviewed by Texas Supreme Court. When a
similar issue was brought before the Texas Supreme Court in, In re Fire Insurance Exchange,
No. 09-04-30 l-CV, 2004 Tex. App. LEXIS 8494 at *2 (Tex. App—Beaumont Sept. 23, 2004,
orig. proceeding), the Plaintiff’s counsel — the same as Plaintiff’s counsel as in this case —
withdrew the protective order and made the issue moot. Consequently, there is no support in
Texas law for the overbroad sharing provisions that Plaintiff seeks in this case.
32. Plaintiff’s reliance on the shared discovery doctrine is also misplaced because the
doctrine arose out of a products liability case, Garcia v. Peeples, and relates to the unique nature
of such litigation, the nature of the discovery documents requested, and the public health and
safety concerns implicated by the defendant’s discovery objections in that case. 734 S.W.2d
343; see also, Steenbergen v. Ford Motor Co., 814 S.W.2d 755 (Tex. App—Dallas 1991, writ
denied) (automobile products liability case); American Honda Motor Co. v. Dibrell, 736 S.W.2d
257 (Tex. App.—Austin 1987, no writ) (all-terrain vehicle product liability case). The public
health concerns at play in a product liability matter, where every potential consumer is equally
impacted by the same design specification and manufacture process, are not present in the
individual insurance claims that arose out of the June 7, 2013 weather event. Moreover, each
State Farm insurance policy at issue will be unique to the claimants and each insurance claim
was independently adjusted. In fact, in most cases, the commonality between Plaintiffs will not
reach beyond the fact that they each purchased a policy from State Farm and allege they suffered
property damage in the weather events. Plaintiff cannot meet the burden to establish that a
public benefit accrues from sharing discovery related to the specific insurance claims that have
arisen regarding property damage from 2013.
33. Crucially, Garcia was decided nearly thirty years ago. Since that time, the ability
to transmit vast quantities of information electronically has increased exponentially. Indeed, a
single violation of the Protective Order could send State Farm’s trade secrets around the country
in a matter of minutes. Once that happens, retrieval would be impossible. The ease with which
information can now be spread substantially undermines any argument that trade secrets will be
protected under a protective order that allows sharing. See, e.g., Gil v. Ford Motor Co., Civ.
Action No. l:06CV122, 2007 U.S. Dist. LEXIS 65269 (N.D.W. Va. 2007) (questioning
Plaintiff’s assertion that sharing provisions in a protective order would adequately protect trade
secrets).
34. Garcia v. Peep/es was also decided more than a decade before the Texas Supreme
Court directly addressed the scope and application of the trade-secret privilege under Texas Rule
of Evidence 507. See In re Continental Gen’l Tire, inc., 979 S.W.2d 609 (Tex. 1998).
Underlying the holding and reasoning of in re Continental is the Court’s recognition that “trade
that
secrets are an important property interest, worthy of protection.” Id. at 612, It is axiomatic
v. Altai,
“once a trade secret is made public all ownership is lost.” Computer Assocs., int’l, Inc.
is
inc., 918 S.W.2d 453, 457 (Tex. 1996). This is true regardless of whether the production
requested in a case involving two business competitors or involving non-competitors. In re
Continental Gen ‘1 Tire, 979 S.W.2d at 613.
35. While extolling the general values of the civil litigation system, Plaintiff fails to
case.
explain how a sharing provision in the protective order is necessary for discovery in her
to
Nor can she explain it because giving State Farm’s trade secrets to other litigants has nothing
secrets
do with the prosecution of the case at hand. In contrast, the risk that State Farm’s trade
will be improperly disclosed is drastically increased once sharing outside the confines of this
litigation has occurred.
36. The language of Plaintiff’s proposed order condones the widespread distribution
of every confidential and proprietary document, confidential deposition transcript, or discovery
response produced in this case to all lawyers who file a lawsuit against State Farm on a wind/hail
claim in Texas with a date of loss in 2013 without regard to the causes of action and factual
allegations contained therein, the relationship to the present litigation, and without any obligation
to return or destroy the information after a definite period of time. This allows Plaintiff’s
counsel to become a repository for such information for years to come, and will encourage
associations and collusion with other counsel bringing claims against State Farm. Even under
Garcia, the Plaintiff’s Proposed Protective Order is deficient because it is not limited to
similarly-situated litigants.
37. State Farm’s concerns about any protective order that allows a Plaintiff’s counsel
to become a repository are not unfounded. The litigation marketplace contains websites and
exchanges devoted to dissemination of confidential and proprietary information, with few
controls and no access to information about who has the trade secret information, or where it
may be used. Allowing use of confidential documents without limitation is problematic not just
because of the risk that Confidential Information will fall into the hands of State Farm’s
competitors, but because the documents applying to or used in the handling of the claim at issue
in this case may not be the same documents used or seen by adjusters in other cases; Plaintiff’s
are thus allowed to falsely impeach parties and witnesses in other cases.
38. The protective order State Farm has proposed does not deny Plaintiff any relevant
Confidential Information that may be necessary for her to prove her case. But, unlike Plaintiff’s
Proposed Protective Order, it also does not jeopardize the confidentiality of those materials by
permitting an essentially ungoverned distribution to an over]y broad class of persons into the
indefinite future. Plaintiff’s Proposed Protective Order is overly’ broad and Plaintiff has not
presented sufficient justification for allowing a sharing provision.
39. For these reasons, the expansive sharing language in paragraphs 1 and 3 of
Plaintiff’s Proposed Protective Order should be rejected by the Court,
I”.
CONCLUSION
40. In light of the foregoing, Plaintiff’s Motion for Entry of Protective Order should
be denied and State Farm’s Proposed Protective Order, attached as Exhibit A, should be entered
as a full confidentiality order in this case. Adoption of State Farm’s Proposed Protective Order
will allow State Farm to continue producing responsive material to Plaintiff while mitigating any
or
risk that State Farm’s Confidential Information will be disclosed without sufficient protection
otherwise lose its trade secret status.
WHEREFORE, PREMISES CONSIDERED, Defendants pray this Honorable Court deny
Order attached
Plaintiff’s Motion for Protective Order, enter State Farm’s Proposed Protective
themselves
hereto, and for any other and further relief, at law or in equity, to which they show
justly entitled.
Respectfully submitted,
HUSEMAN & STEWART
615 N. Upper Broadway, Suite 2000
Corpus Christi, TX 78401-0781
(361) 883-3563; (361) 883-0210 (Fax)
.—-Thl ê ti I
\&-‘
VjHUSEMAN
State Bar No. 1032350
TIFFANY DEBOLT
State Bar No. 24074118
Attorneys for Defendant State Farm Lloyds
& Becky Lanier
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing was this 10th day of February 201 5, served on
the following:
VIA E-SERVICE
Mr. J. Steve Mostyn
The Mostyn Law Firm
3810 West Alabama Street
Houston, Texas 77027
DE7L
ii I certf—
2OL
By
Filed
2/10/2015 2:32:57 PM
Esther Degollado
District Clerk
Webb District
2014CVF001048 Dl
NO. 2014CVF001048-Dl
ALMA PENA, § IN THE DISTRICT COURT
Plaintiff §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND BECKY §
LANIER, §
Defendants § 49TH JUDICIAL DISTRICT
PROTECTIVE ORDER
‘l’his Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced or exchanged in this litigation, and that the following provisions,
limitations, and prohibitions are appropriate pursuant to and in conformity with the Texas Rules
of Civil Procedure. Therefore, it is hereby ORDERED that:
1. All Confidential Information produced or exchanged in the course of this
litigation shall be used solely for the purpose of the preparation and trial of this
litigation against State Farm Lloyds (including its employees) and Becky Lanier
(Defendants”) or any third party adjusting firm (including its employees) that
adjusted this claim and for no other purpose, Confidential Information, or
extracts, summaries, or information derived from Confidential Information, shall
not be disclosed to any person except in accordance with the terms of this Order.
Confidential Information may only be copied or reproduced as reasonably
necessary for use solely in this litigation.
2. “Confidential Information,” as used herein, means any information of any type
that is designated as “Confidential” and/or “Trade Secret” by any of the
producing or receiving parties, whether it is: a document, electronically stored
information (“ESI”). or - contained in a document, ESI,
origi
theday41.
ESTH 0
Jj c;rtr
LL•Aand
aw
By
or other material; information revealed during a deposition: information revealed
in an interrogatory answer or written responses to discovery; information revealed
during a meet and confer, or otherwise in connection with formal or informal
disc oven’.
3. The disclosure of Confidential Infonnation is restricted to Qualified Persons.
“Qualified Persons,” as used herein, means: the parties to this pending litigation
arising out of a weather event on or about June 7. 2013 in Webb County, Texas;
their respective counsel; counsel’s staffi expert witnesses; outside service-
providers and consultants providing services related to document and ESI
processing, hosting, review, and production; the Court; other court officials
(including court reporters); the trier of fact pursuant to a sealing order; and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any
other person may be designated as a Qualified Person by order of this Court, after
notice to all parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential
Information to a person who is not a Qualified Person on counsel for the
designating party, and consent shall not be unreasonably withheld. However,
until said requesting party receives written consent to further disclose the
Confidential Infonnation, the further disclosure is hereby prohibited and shall not
be made absent further order of this Court. If the designating party grants its
consent, then the person anted consent shall become a Qualified Person tinder
this Order.
5. Counsel for each party shall provide a copy of this Order to any person—other
2
than the Court. court officials, or the trier of fact—who will receive Confidential
Information in connection with this litigation, and shall advise such person of the
scope and effect of the provisions of this Order and the possibility of punishment
by contempt for violation thereof Further, before disclosing Confidential
Information to any person other than the Court, court officials, or the trier of
fact, counsel for the party disclosing the information shall obtain the writt en
acknowledgment of that person binding him or her to the tenns of this Order. The
written acknowledgment shall be in the fonn of Exhibit A attached hereto.
Counsel for the disclosing party shall retain the original written acknowledgment.
and furnish a copy of the signed written acknowledgment to the designating
party’s counsel within ten (10) business days.
6. Infonnation shall he designated as Contidential InThnnation within the meaning
of this Protective Order by following the protocol below that corresponds to the
fonnat produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree. ‘Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf.
Agree./Prot. Order,” but not so as to obscure the content of the document.
h. For static image productions, by marking the first Bates-stamped page of
the image and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
3
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a ConE
Agree./Prot. Order,” hut not so as to obscure the content of the image.
c. For native file formal productions, by prominently labeling the delivery
media for ESI designated as Confidential Infonnation as follows:
“Confidential & Proprietary/Produced Pursuant to a ConE Agree./Prot.
Order” or “Confidential Proprietary & Trade Secret/Produced Pursuant to
a ConE Agree./Prot. Order.” In addition, at the election of the producing
party. the electronic file may have appended to the file’s name
(immediately following its Bates identifier) the following protective
legend:
COtcTIDENTIAL-SIJBJ TO PROTECTIVE ORDER [N CAUSE [insert
When any file so designated is converted to a hard-copy document or
static image for any purpose, the document or image shalL bear on each
page a protective legend as described in 6.a. and 6.b. above. If a native
file containing Confidential Information is used during a deposition. meet
and confer, trial, or is otherwise disclosed post-production, the party
introducing, referencing, or submitting the native file must append to the
file’s name (immediately following its Bates identifier) the protective
legend:
“CONFIDENTIAL-SUBJ TO PROTECTIVE ORDER [N CAUSE [insert #]“ if
such legend does not already appear in the file name. Any party using a
native file containing Confidential Infonnation in a deposition, hearing, or
at trial must indicate the designation on the record so that it is retlected in
4
the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may
place on any hard-copy documents that are subject to this Protective Order
watermarks or seals to indicate the document is subject to a Protective
Order and is produced under the specific cause number.
7. Information previously produced during this litigation and not already marked as
Confidential Information shall be retroactively designated within thirty (30) days
of entry of this Order by providing written notice to the receiving parties of the
Bates identifier or other identifying characteristics for the Confidential
Information.
a. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, and/or (ii) with respect to ESI. take such reasonable
steps as will reliably identify the item(s) as having been designated as
Confidential Information.
b. Infornrntion that is unintentionally or inadvertently produced without
being designated as Confidential Information may be retroactively
designated by the producing party in the maimer describe in paragraph 7.a.
5
above, If a retroactive designation is provided to the receiving party in
accordance with Texas Rule of Civil Procedure 193.3(d) the receiving
party must (i) make no further disclosure of such designated information
except as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated infonnation of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not pennitted
access to such information under the tenns of this Order. No party shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
8. If Confidential Information is inadvertently disclosed to a person who is not a
Qualified Person, the disclosing party shall immediately upon discovery of the
inadvertent disclosure, send a written demand to the non-Qualified Person
demanding the immediate return and/or destruction of the inadvertently disclosed
Confidential Infonnation, all copies made. and all notes that reproduce. copy, or
otherwise contain infotmation derived from Confidential Information. Further the
disclosing party shall send written notice to the designating party’s counsel
providing:
a. The names and addresses of the entity or individual to whom the
Confidential Infonnati on was inadvertently disclosed.
Ii The date of the disclosure.
c. A copy of the notice and demand sent to the entity or individual that
inadvertently received the Confidential Infonnation.
6
9. To the extent that the parties produce infornmtion received from non-parties that
the non-parties have designated as “confidential” such information shall he treated
as Confidential Information in accordance with the terms of this Protective Order.
a. With respect to any document, ESI, or other material that is produced or
disclosed by a non-party. any party max’ designate such information as
Confidential Information within thirty (30) days of actual knowledge of
the production or disclosure, or such other time as may be agreed upon by
the parties.
b. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such infonnation
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated infonnation in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, and/or (ii) with respect to ESI. take such reasonable
steps as will reliably identify the item(s) as having been designated as
Confidential Information.
c. Upon notice of designation pursuant to this Paragraph, the parties also
shall: (i) make no further disclosure of such designated information except
as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated infonnation of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
7
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No person shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
d. The parties shall serve a copy of this Order simultaneously with any
discovery rcquest made to a non-party.
10. Deposition testimony is Confidential Information under the terms of this Order
only if counsel for a party advises the court reporter and opposing counsel of that
designation at the deposition, or by written designation to all parties and the court
reporter within thirty (30) business days afier receiving the deposition transcript.
All deposition transcripts shall be considered Confidential Information until thirty
(30) days following the receipt of the deposition transcript. In the event testimony
is desigmited as Confidential Information, the court reporter shall note the
designation on the record, shall separately transcribe those portions of the
testimony, and shall mark the face of such portion of the transcript as
“Confidential Information.” The parties may use Confidential 1nfomation during
any deposition, provided:
a. The witness is apprised of the tenns of this Order and executes the
acknowledgment attached hereto as Exhibit A.
b. The room is first cleared of all persons who are not Qualified Persons.
11. In the case of interrogatory answers, responses to request for production, and
responses to requests for admissions, the designation of Confidential Information
will be made by means of a statement in the answers or responses specifying that
8
the answers or responses or specific pads thereof are designated as Confidential
Infonnation. A producing patty shall place the following legend on each page of
interrogatory answers or responses to requests for admission: ‘tontains
Confidential Information.”
12. Confidential Information disclosed during a meet and confer or otherwise
exchanged in infonnal discovery, shall be protected pursuant to this Order if
counsel for the disclosing party advises the receiving patty the information is
Confidential Information, ifthe Confidential Information disclosed during a meet
and confer or otherwise exchanged in informal discovery is in the form of hard
copy documents, static images, or native files, that information shall be
designated as Confidential Infonnation pursuant to paragraphs 6 a, b., and/or c.
above, depending on the format ofthe materials introduced.
13. if a receiving patty makes a good-faith determination that any materials
designated Confidential Information are not in fact “confidential” or “trade
secret,” the receiving party may request that a designating party rescind the
designation. Such requests shall not be rejected absent a good-faith determination
by the designating patty that the Confidential Infonnation is entitled to protection.
14. After making a good-faith effort to resolve any disputes regarding whether any
designated materials constitute Confidential Information, counsel of the party or
parties receiving the Confidential Infonnation may challenge such designation of
all or any portion thereof by providing written notice of the challenge to the
designating party’s counsel. The designating party shall have thirty (30) days
from the date of receipt of a written challenge to file a motion for specific
9
protection with regard to any Confidential Information in dispute. If the party or
parties producing the Confidential Information does not timely file a motion for
specific protection. then the Confidential Information in dispute shall no longer be
subject to confidential treatment as provided in this Order.
15. If a timely motion for specific protection is filed, any disputed Confidential
Information will remain subject to this Order until a contrary determination is
made by the Court. At any hearing the designating party shall have the burden to
establish that party’s right to protection as if this Order did not exist. A party’s
failure to challenge the Confidential Infonnation designation of any documents,
ESI, information, or testimony does not constitute an admission that the
document, ESI, infonnation or testimony is, in fact, sensitive, confidential, or
proprietary. No party waives its right to contend at trial or hearing that such
document, ESI, information or testimony is not sensitive, confidential, privileged
or proprietary, provided the party provides notice of intention to do so at least
twenty (20) days before such trial or hearing.
16. Any papers filed with the Court in this action that make reference to Confidential
Informafion, or contain extracts, summaries, or information derived therefrom,
shall be considered Confidential Information and shall he governed by the tenns
of this Order. These papers shall he filed under seal and shall remain sealed with
the District Clerks Office so long as the materials retain their status as
Confidential Information.
17. Pursuant to the agreement of the parties no disclosure, production, or exchange of
information in this case shall constitute a waiver of any applicable attorney-client
10
privilege or of aim’ applicable work product protection in this or any other federal
or state proceeding. This Protective Order applies to any information disclosed,
exchanged, produced, or discussed — whether intentionally or inadvertently —
among the parties, their counsel and/or any agents (such as vendors and experts)
in the course of this litigation. Upon learning of a production of privileged or
work product protected information, the producing party shall within ten (10)
days give all counsel of record notice of the production pursuant to Texas Rule of
Civil Procedure 193.3(d). The receiving party must promptly return, sequester or
destroy the produced information and all copies and destroy any notes that
reproduce, copy, or otherwise disclose the substance of the privileged or work
product protected infonnation.
18. Further, production pursuant to this Protective Order shall not be deemed a waiver
of:
a. Any party’s right to object to any discovery requests on any ground.
b. Any party’s right to seek an order compelling discovery with respect to
any discovery request.
c. Any party’s use and review of its own Confidential Information in its sole
and complete discretion.
d. The status of any material as a trade secret.
19. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
20. Within forty-five (45) business days after the final resolution of this litigation, the
plaintiff(s) shall return or destroy Confidential Infonnation they received during
11
_
___________
_____
this litigation. As to those materials that contain or reflect Confidential
Infonnation. hut that constitute or reflect the plaintiff(s) counsel’s own work
product, counsel for the plaintiff(s) are entitled to retain such work product in
their tiles in accordance with the provisions of this Protective Order, so long as
the work product is clearly marked to reflect that it contains infonnation subject
to this Protective Order. Plaintiffs counsel is entitled to retain pleadings,
affidavits, motions, briefs, other papers filed with the Court, deposition
transcripts, and the trial record even if such materials contain Confidential
Information, so long as such materials are clearly marked to reflect that they
contain information subject to this Protective Order and are maintained in
accordance with the provisions of this Protective Order. Plaintiff’s counsel shall
certify in writing compliance with the provision of this paragraph after forty-five
(45) business days after the final resolution of this litigation.
This Order shall remain in effect unless or until amended, altered, modified, or vacated
by the Court or by the written agreement of all parties to this action filed with the Court,
pursuant to the Texas Rules of Civil Procedure.
IT IS SO ORDERED
this
day of 2015.
JUDGE PRESIDING
t:eda:L2
12
____________________
______________________
NO. 2014CVF001048-Dl
ALMA PENA, § IN THE DISTRICT COURT
Plaintiff §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND BECKY §
LANIER. §
Defendants § 49TH JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
in order to be provided access to information
desiated as Confidential Information under the Protective Order entered in Cause No.
2014CVF001048-Dl represents and agrees as follows:
1. 1 have been provided with a copy of the Protective Order entered by the Court in
the above matter. I have reviewed said copy and I am familiar with its terms.
2. With regard to any and all Confidential Information to which I am given access in
connection with the above matter, I agree to be bound by the provisions of the
Protective Order.
3. I consent to the exercise of jurisdiction over me by the Court with respect to the
Protective Order.
4. I agree that copies of this undertaking will be sent to counsel of record for all
parties in the above litigation.
DATED: SIGN ATURE
EXHIBIT A
Filed
2/10/2015 2:32:57 PM
Esther Degollado
Alma Pena v. Slate Farm Lloyds et a!. (2014-CVF-001048-D1) District Clerk
Webb District
Comparison of Protective Orders 2014CVF001048 Dl
Text without highlights is identical
Yellow highlighted text indicates differences
Gral highlighted text denotes substantially similar text
1. All Confidential Information produced or 1. All Confidential Information produced or
exchanged in the course of this litigation exchanged in the course of this litigation
shall be used solely for the purpose of the shall be used solely for the purpose of the
preparation and trial of this litigation and preparation and trial of this litigation against
other related litigation against State Farm State Farm Lloyds (including its employees)
Lloyds (including its employees) or any third andlor any third party adjusting firm
party adjusting firm (including its (including its employees) (“Defendants”)
employees) that adjusted claims arising out that adjusted this claim and for no other
[sicl hailstorms and/or windstorms in Texas purpose. Confidential Information, or
with a date of loss in 2013, and for no other extracts, summaries, or information derived
purpose. “Related Litigation” means a first- from Confidential Information, shall not be
party lawsuit in Texas by an insured against disclosed to any person except in accordance
State Farm Lloyds and its adjusters or with the terms of this Order. Confidential
adjusting companies that produced the Information may only be copied or
Confidential Information for damages to reproduced as reasonably necessary for use
insured property arising out of hailstorms solely in this litigation.
and/or windstorms in Texas with a date of
loss in 2013. Confidential Information shall
not be disclosed to any person except in
accordance with the terms of this Order.
Why Plaintiffs’ Proposal is Not Acceptable:
the
Plaintiffs’ proposal is not narrowly tailored to limit the use of Confidential Information to
can
present litigation with State Farm and does not limit the reproduction of such information. ES!
be duplicated and circulated with ease, and unnecessary duplication increases the risk that
confidential, proprietary, or trade secret information will be disclosed in violation of a protective
in
order. The sharing of discovery in “related litigation” is not necessary in order to achieve fairness
the adjudication of this litigation, nor would it serve any public policy purpose. Moreover,
Plaintiffs’ definition of related litigation is not reasonably limited to a time and place.
use it fails to limit a receiving party’s right to disclose
ts or electronically stored information produced.
the Page 1 of 18
By
Alma Pena v. State Farm Lloyds et aL (2014-CVF-001048-D1)
Comparison of Protective Orders
C
Why State Farm’s Proposal is Better:
Defendants have tailored the introductory paragraph to reflect that Confidential Information is being
disclosed for use in the case at bar, and for no other purpose. In addition, Defendants have added
language to reasonably protect any producing party from the unnecessary duplication of
Confidential Information.
Plaintiffs’ Protective Order State Farm’s Protective Order
Definition — Confidential Information
2. “Confidential Information,” as used herein, 2. “Confidential Information,” as used herein,
means any information of any type which is means any information of any type that is
designated as “Confidential” by any of the designated as “Confidential” and/or “Trade
supplying or receiving parties, including Secret” by any of the producing or receiving
information received from non-parties, parties, whether it is: a document,
whether it is a document, information electronically stored information (“ESI”), or
contained in a document, information other material; information contained in a
revealed during a deposition, information document, ESI, or other material;
revealed in an interrogatory answer or information revealed during a deposition;
otherwise. At the sole discretion of the information revealed in an interrogatory
producing party, the producing party may answer or written responses to discovery;
place on any documents that are subject to information revealed during a meet and
this Protective Order, bates numbers and/or a confer, or otherwise in connection with
legend to indicate the document is formal or informal discovery.
“Confidential,” subject to a Protective Order
and is produced under the specific cause
number; however, the producing party shall
not label designated documents with a
watermark.
Page 2 of 18
Alma Pena v. State Farm Lloyds et aL (2014-CVF-001048-D1)
Comparison of Protective Orders
Plaintiffs’ Protective Order State Farm’s Protective Order
Defmition — Confidential Information
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ proposal does not specifically address the disclosure of trade secret information,
electronically stored information, or the disclosure of information in the context of a meet and
confer, all of which are relevant to this case. The second sentence of Plaintiffs’ paragraph two deals
with marking Confidential Information, which is the subject of paragraph 6, and should be addressed
in that paragraph.
Why State Farm’s Proposal is Better:
Under Texas law, all confidential, proprietary, and trade secret information is entitled to protection
from the court when such information is relevant to the litigation and must be disclosed in the course
of discovery. Specific protections for ESI and trade secret information are imperative to the
protection of State Farm’s property interests in its Confidential Information. State Farm’s paragraph
2 expands the definition of Confidential Information to include all types of information (i.e., ESI),
and all means through which such information is obtained.
Plaintiffs’ Protective Order State Farm’s Protective Order
Qualified Person
3. The disclosure of Confidential Information is 3. The disclosure of Confidential Information is
restricted to Qualified Persons. “Qualified restricted to Qualified Persons. “Qualified
Persons,” as used herein, means: the parties Persons,” as used herein, means: the parties
to pending litigation arising out of hailstorms to this pending litigation arising out of a
and/or windstorms in Texas [sic] a date of weather event on or about [date], in [County]
loss in 2013; their respective counsel; County, Texas; their respective counsel;
counsel’s staff; expert witnesses; outside counsel’s staff; expert witnesses; outside
service providers and consultants providing service-providers and consultants providing
services related to document and ESI services related to document and ESI
processing, hosting, review, and production; processing, hosting, review, and production;
the Court; other court officials (including the Court; other court officials (including
court reporters); the trier of fact pursuant to a court reporters); the trier of fact pursuant to a
sealing order; and any person so designated sealing order; and any person so designated
pursuant to paragraph 4 herein. If this Court pursuant to paragraph 4 herein. If this Court
so elects, any other person may be designated so elects, any other person may be
as a Qualified Person by order of this Court, designated as a Qualified Person by order of
Page 3 of 18
Alma Pena v. State Farm Lloyds et aL (2014-CVF-001048-D1)
Comparison of Protective Orders
Qua ied Person
after notice to all parties and a hearing, this Court, after notice to all parties and a
hearing.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ proposal provides the overbroad definition of the litigation as “hailstorrns and/or
windstorms in Texas [with] a date of loss in 2013.” The Motion to Compel discovery filed with the
Motion for Protective Order, however, identifies a “hail storm and/or windstorms damage that
occurred on or about June 13, 2012.” More importantly, Plaintiffs proposed paragraph three puts
Defendants’ Confidential Information at risk because it allows information produced to be shared
with parties in unrelated litigation. In addition, the handling of a weather related claim in Dallas
County is not necessarily related to the handling of an unrelated claim in another county.
Why State Farm’s Proposal is Better:
to
State Farm’s proposed paragraph 3 simply identifies the weather event that precipitated Plaintiffs
make an insurance claim regarding wind and hail damage.
4. The parties generally agree regarding the language of paragraph 4 of Plaintiffs’ Proposed
Protective Order, which corresponds with paragraph 4 of State Farm’s Proposed Protective
Order. Plaintiffs’ proposed language, however, contains a typographical error. The word
“or” in the first sentence should be changed to “on” so that the sentence reads:
Any party may serve a written request for authority to disclose
Confidential Information to a person who is not a Qualified Person
counsel for the designating party, and consent shall not be unreasonably
withheld.
Plaintiffs’ Protective Order State Farm’s Protective Order
Disclosing Confidential Information
5. Lead counsel for each party shall provide a 5. Counsel for each party shall provide a copy
copy of this Order to any person to whom of this Order to any person—other than the
Confidential Information is to be disclosed, Court, court officials, or the trier of fact—
including each party such counsel represents, who will receive Confidential Information in
and shall advise such person of the scope and connection with this litigation, and shall
effect of the confidentiality provisions of this advise such person of the scope and effect of
Page 4 of 18
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Comparison of Protective Orders
Plaintiffs’ Protective Order State Farm’s Protective Order
Disclosing Confidential Information
Order and the possibility of punishment by the provisions of this Order and the
contempt for violation thereof. Further, possibility of punishment by contempt for
before disclosing Confidential Information to violation thereof. Further, before disclosing
any person, lead counsel for the party Confidential Information to any person other
disclosing the information shall obtain the than the Court, court officials, or the trier of
written acknowledgment of that person fact, counsel for the party disclosing the
binding him or her to the terms of this Order. information shall obtain the written
The written acknowledgment shall be in the acknowledgment of that person binding him
form of “Exhibit A” attached hereto. Lead or her to the terms of this Order. The written
counsel for the disclosing party shall retain acknowledgment shall be in the form of
the original written acknowledgment, and Exhibit A attached hereto. Counsel for the
furnish a copy of the signed written disclosing party shall retain the original
acknowledgment to counsel for the party written acknowledgment, and furnish a copy
designating the information as confidential of the signed written acknowledgment to the
within ten (10) business days. designating party’s counsel within ten (10)
business days.
Why Plaintiffs’ Proposal is Not Acceptable:
State Farm will be prejudiced, and its property interests in its Confidential Information are likely to
be compromised, if Plaintiffs’ counsel is allowed to share State Farm’s Confidential Information
with “each party such counsel represents” or others outside of this litigation. Moreover, Plaintiffs’
proposal does not exempt the Court, court officials, and the trier of fact from the requirement of the
paragraph.
Why State Farm’s Proposal is Better:
State Farm’s paragraph 5 exempts the Court, court officials, and the trier of fact from the
requirement that Qualified Persons execute an acknowledgement of the protective order (Exhibit A).
This is merely a practical addition to the paragraph. If similar language is not included, under the
terms of the protective order, the Court would be unnecessarily required to execute an
acknowledgement of its own order.
Page 5 of 18
Abna Pena v. State Farm Lloyds et aL (2014-CVF-001048-D1)
Comparison of Protective Orders
i esignating Productions —
6. Information shall be designated as Information shall be designated as
Confidential Information within the meaning Confidential Information within the meaning
of this Protective Order by following the of this Protective Order by following the
protocol below that corresponds to the format protocol below that corresponds to the
produced: format produced:
a. For hard-copy documents, by marking a. For hard-copy documents, by marking
the first Bates-stamped page of the the first Bates-stamped page of the
document and each subsequent Bates- document and each subsequent Bates-
stamped page thereof containing stamped page thereof containing
Confidential Information with the Confidential Information with the
following legend: “Confidential & following legend: “Confidential &
Proprietary/Produced Pursuant to a Proprietary/Produced Pursuant to a
Conf. Agree./Prot. Order” or Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade “Confidential Proprietary & Trade
Secret/Produced Pursuant to a Conf. Secret/Produced Pursuant to a Conf.
Agree./Prot. Order,” but not so as to Agree./Prot. Order,” but not so as to
obscure the content of the document. obscure the content of the document.
b. For static image productions by marking b. For static image productions, by
the first Bates-stamped page of the marking the first Bates-stamped page of
document and each subsequent Bates- the image and each subsequent Bates-
stamped page thereof containing stamped page thereof containing
Confidential Information with the Confidential Information with the
following legend: “Confidential & following legend: “Confidential &
Proprietary/Produced Pursuant to a Proprietary/Produced Pursuant to a
Conf. Agree./Prot. Order” or Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade “Confidential Proprietary & Trade
Secret/Produced Pursuant to a Conf. Secret/Produced Pursuant to a Conf.
Agree./Prot. Order,” but not so as to Agree./Prot. Order,” but not so as to
obscure the content of the image. obscure the content of the image.
c. For native format productions, by c. For native file format productions, by
prominently labeling the delivery media prominently labeling the delivery media
for ESI designated as Confidential for ESI designated as Confidential
Information as follows: “Confidential & Information as follows: “Confidential &
Proprietary/Produced Pursuant to a Proprietary/Produced Pursuant to a
Page 6 of 18
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Comparison of Protective Orders
Plaintiffs’ Protective Order Defendants’ Protective Order
Designating Productions
Conf. Agree./Prot. Order” or Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade “Confidential Proprietary & Trade
Secret/Produced Pursuant to a Conf. Secret/Produced Pursuant to a Conf.
Agree./Prot. Order.” In addition, at the Agree./Prot. Order.” In addition, at the
election of the producing party, the election of the producing party, the
electronic file may have appended to the electronic file may have appended to the
file’s name (immediately following its file’s name (immediately following its
Bates identifier) the following protective Bates identifier) the following protective
legend: legend:
“CONFIDENTIAL-SUBJ “CONFIDENTIAL
TO PROTECTIVE ORDER IN SUBJ TO PROTECTIVE_ORDER_IN
Cause No. 201 4-CVF-001 048; Alma _CAUSE_[insert #].“ When any file so
Pena vs. State Farm Lloyds, and Becky designated is converted to a hard-copy
Lan ier in the 49th District Court, Webb document or static image for any
County, Texas.” When any file so
purpose, the document or image shall
designated is converted to a hard copy or
static image for any purpose, the bear on each page a protective legend as
document or image shall bear on each described in 6.a, and 6.b. above. If a
page a protective legend as described in native file containing Confidential
6.a. and 6.b. above. If a native file Information is used during a deposition,
containing Confidential Information is meet and confer, trial, or is otherwise
used during a deposition, meet and
disclosed post-production, the party
confer, trial, or is otherwise disclosed
post-production, the party introducing, introducing, referencing, or submitting
referencing, or submitting the native file the native file must append to the file’s
must append the the file’s name name (immediately following its Bates
(immediately following its Bates identifier) the protective legend:
identifier) the following protective
legend: “CONFIDENTIAL
“CONFIDENTIALSUBJ SUBJ TO PROTECTIVE_ORDER_IN
TO PROTECTIVE ORDER_IN_ _CAUSE_[insert #j” if such legend does
Cause No. 2014-C VF-001048; Alma not already appear in the file name.
Pena vs. State Farm Lloyds, and Becky Any party using a native file containing
Lanier; in the 49th District Court, Webb Confidential Information in a
County, Texas” if such legend does not deposition, hearing, or at trial must
already appear in the file name. Any indicate the designation on the record so
party using a native file containing that it is reflected in the transcript of the
Confidential Information in a deposition,
Page 7 of 18
Alma Pena v. State Farm Lloyds et aL (2014-CVF-001048-D1)
Comparison of Protective Orders
Plaintiffs’ Protective Order Defendants’ Protective Order
Designating Productions .
hearing, or at trial must indicate the proceedings.
designation on the record so that it is
d. At the sole discretion of the producing
reflected in the transcript of the
party, the producing party may place on
proceedings.
any hard-copy documents that are
d. At the sole discretion of the producing
subject to this Protective Order
party, the producing party may place on
watermarks or seals to indicate the
any hard-copy documents that are
document is subject to a Protective
subject to this Protective Order
Order and is produced under the specific
watermarks or seals to indicate the
cause number.
document is subject to a Protective
Order and is produced under the specific
cause number.
Why Plaintiffs’ Proposal is Not Acceptable:
When Plaintiffs’ proposed legend in subparagraph 6.c is combined with standard path, file name,
and Bates identifier information, it is very likely the combined information will exceed 255
characters. Since the Windows operating system has a 255 character limit for the combined file
name and file path information it will not be possible to use this file naming convention.
Why Defendants’ Proposal is Better:
State Farm’s proposed protective legend will allow the parties to accurately identify electronic files
and the matter in which the file was produced, and is not likely to exceed the Windows 255
character limit when combined with standard path, file name, and Bates identifier information.
Plaintiffs’ Protective Order State Farm’s Protective Order
Inadvertent Disclosure
7. Any party who inadvertently discloses 8. If Confidential Information is inadvertently
Confidential Information during the disclosed to a person who is not a Qualified
Page 8 of 18
Alma Pena v. State Farm Lloyds et aL (2014-CVF-001048-D1)
Comparison of Protective Orders
inadvertent Disclosure
discovery process shall, immediately upon Person, the disclosing party shall
discovery of the inadvertent disclosure, give immediately upon discovery of the
notice in writing to the party or parties in inadvertent disclosure, send a written
possession of such information that the demand to the non-Qualified Person
information is designated as “Confidential” demanding the immediate return and/or
and shall request its immediate return. After destruction of the inadvertently disclosed
receipt of such notice, the parties shall treat Confidential Information, all copies made,
the information so designated as Confidential and all notes that reproduce, copy, or
Information under the terms of this Order, otherwise contain information derived from
unless released of this duty by further order Confidential Information. Further the
of this Court. Additionally, any party who disclosing party shall send written notice to
inadvertently discloses Confidential the designating party’s counsel providing:
Information during the discovery process
a. The names and addresses of the entity or
shall, immediately upon discovery of the
individual to whom the Confidential
inadvertent disclosure, give notice in writing
Information was inadvertently disclosed.
to the party which produced and provided
this information, the names and addresses of b. The date of the disclosure.
the persons to whom it was disclosed and the
date of the disclosure together with a copy of c. A copy of the notice and demand sent to
the notice by which the inadvertently the entity or individual that
disclosing party requested the immediate inadvertently received the Confidential
return of the documents. Information.
Why Plaintiffs’ Proposal is Not Acceptable:
The parties generally agree that this protective order should provide procedures to be followed in the
event that Confidential Information is disclosed to a non-Qualified Person. Plaintiffs’ procedure
does not contain the detail necessary to ensure that any inadvertent disclosure of Confidential
Information is fully remedied. First, the paragraph limits the duties to remedy to “any party.”
Confidential Information may be inadvertently disclosed by any Qualified Person, not just a party to
the litigation, and not just during discovery. Second, Plaintiffs’ proposal merely provides
procedures for disclosure of hard-copy documents or other physically tangible items that can be
returned, and does not provide procedures to cover the destruction of ESI. If a non-Qualified Person
receives Confidential Information through electronic transmission or copied or reproduced ESI that
is Confidential Information, then the copies could not be returned, but would need to be destroyed.
In addition, the second sentence of Plaintiffs’ proposed paragraph 7 appears to address a separate
Page9ofl8
Alma Pena v. State Farm Lloyds et aL (2014-CVF-001048-D1)
Comparison of Protective Orders
Plaintiffs’ Protective Order State Farm’s Protective Order
Inadvertent Disclosure
procedure for the parties to follow if Confidential Information is disclosed to a Qualified Person, but
that information is not properly designated as confidential. That issue is separate from the issue of
inadvertent disclosure of Confidential Information to a non-Qualified Person, and should be
addressed in a separate paragraph.
Why State Farm’s Proposal is Better:
State Farm’s proposed paragraph 8 ensures that in the event that Confidential Information is
inadvertently disclosed to a non-Qualified Person, there are proper procedures for the destruction of
ESI. Defendants also address the issue of disclosure of Confidential Information without a proper
designation in a separate paragraph (see State Farm’s ¶ 7).
8. The parties generally agree regarding the language of paragraph 8 of Plaintiffs’ Proposed
Protective Order, which corresponds with paragraph 7 of State Farm’s Proposed Protective
Order. The internal reference to subparagraph “7.a.” in Plaintiffs’ proposed subparagraph
8.b., however, should be changed to “8.a.” if Plaintiffs’ paragraph 8 is adopted.
Plaintiffs’ Protective Order State Farm’s Protective Order
Non-parties
9. To the extent that the parties produce
information received from non-parties that
the non-parties have designated as
“confidential” such information shall be
treated as Confidential Information in
accordance with the terms of this Protective
Order.
a. With respect to any document, ESI, or
other material that is produced or
disclosed by a non-party, any party may
designate such information as
Confidential Information within thirty
(30) days of actual knowledge of the
production or disclosure, or such other
time as may be agreed upon by the
Page 10 of 18
Alma Pena v. State Farm Lloyds et aL (2014-CVF-001048-D1)
Comparison of Protective Orders
Plaintiffs’ Protective Order State Farm’s Protective Order
Non-parties
parties.
b. Within thirty (30) days of receipt of
such notice, or such other time as may
be agreed upon by the parties, any
parties receiving such notice shall return
to the designating party all undesignated
copies of such information in their
custody or possession, in exchange for
the production of properly designated
information, or alternately (upon the
agreement of the parties) shall (i) affix
the legend to all copies of such
designated information in the party’s
possession, custody, or control
consistent with the terms of this
Protective Order, and/or (ii) with respect
to ESI, take such reasonable steps as
will reliably identify the item(s) as
having been designated as Confidential
Information.
c. Upon notice of designation pursuant to
this Paragraph, the parties also shall: (i)
make no further disclosure of such
designated information except as
allowed under this Order; (ii) take
reasonable steps to notify any persons
who were provided copies of such
designated information of the terms of
this Order; and (iii) take reasonable
steps to reclaim any such designated
information in the possession of any
person not permitted access to such
information under the terms of this
Order. No person shall be deemed to
have violated this Order for any
disclosures made prior to notification of
Page 11 of 18
Alma Pena v. State Farm Lloyds et aL (2014-CVF-001048-D1)
Comparison of Protective Orders
I Ion-parties
any subsequent designation.
d. The parties shall serve a copy of this
Order simultaneously with any
discovery request made to a non-party.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ proposed protective order fails to address the issue of information produced or disclosed
by non-parties.
Why State Farm’s Proposal is Better:
To the extent any party will need to produce Confidential Information provided to it by non-parties
or use Confidential Information produced by non-parties in discovery, its duties to that third party
should be recognized by the protective order. State Farm’s proposal includes these terms to provide
that information from third-parties that may be produced will be protected by the order.
Plaintiffs’ Protective Order State Farm’s Protective Order
Re-designation
9. Any party may request the party designating 13. If a receiving party makes a good-faith
information as “Confidential” to consent to determination that any materials designated
re-designate confidential information as not Confidential Information are not in fact
confidential, which request shall not be “confidential” or “trade secret,” the receiving
rejected absent a good-faith determination by party may request that a designating party
the designating party that the Confidential rescind the designation. Such requests shall
Information is entitled to protection, not be rejected absent a good-faith
determination by the designating party that
the Confidential Information is entitled to
protection.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ proposal imposes a good-faith standard on the designating party but not on the receiving
party.
Why State Farm’s Proposal is Better:
Page 12 of 18
Alma Pena v. State Farm Lloyds et aL (2014-CVF-001048-D1)
Comparison of Protective Orders
Plaintiffs’ Protective Order State Farm’s Protective Order
Re-designation
State Farm’s proposal includes the requirement that the receiving party can only request that the
designating party rescind a Confidential Information designation if that request is made in good-
faith.
Deposition testimony
10. Deposition testimony is Confidential 10. Deposition testimony is Confidential
Information under the terms of this Order Information under the terms of this Order
only if counsel for a party advises the court only if counsel for a party advises the court
reporter and opposing counsel of that reporter and opposing counsel of that
designation at the deposition, or by written designation at the deposition, or by written
designation to all parties and the court designation to all parties and the court
reporter within thirty (30) business days after reporter within thirty (30) business days after
receiving the deposition transcript. All receiving the deposition transcript. All
deposition transcripts shall be considered deposition transcripts shall be considered
confidential until thirty (30) days following Confidential Information until thirty (30)
the receipt of the deposition transcript. The days following the receipt of the deposition
court reporter shall note on the record the transcript. In the event testimony is
designation of said information as designated as Confidential Information, the
Confidential and shall separately transcribe court reporter shall note the designation on
those portions of the testimony and mark the the record, shall separately transcribe those
face of such portion of the transcript as portions of the testimony, and shall mark the
“Confidential.” The parties may use face of such portion of the transcript as
Confidential Information during any “Confidential Information.” The parties may
deposition, provided the witness is apprised use Confidential Information during any
of the terms of this Order and executes the deposition, provided:
acknowledgment attached hereto as Exhibit
a. The witness is apprised of the terms of
“A.” The parties may use Confidential
this Order and executes the
Information during a deposition only if the
acknowledgment attached hereto as
room is first cleared of all persons except the
Exhibit A.
court reporter, the witness being deposed,
counsel for the parties and any expert entitled b. The room is first cleared of all persons
to attend, and only if said witness executes
Page 13 of 18
Alma Pena v. State Farm Lloyds et aL (2014-CVF-001048-D1)
Comparison of Protective Orders
r
I eposition estimony
the acknowledgement attached as Exhibit who are not Qualified Persons.
‘“Si.,,
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ proposed paragraph 10 does not allow all Qualified Persons in attendance at a deposition
to remain in the room while a deponent testifies regarding Confidential Information. Rather, the
attendees are limited to “the court reporter, the witness being deposed, counsel for the parties and
any expert entitled to attend.” It is common practice to have a party representative present at
depositions and party representatives are Qualified Persons under the terms of Plaintiffs’ Proposed
Protective Order. There is no reason to exclude Qualified Persons from a deposition if they are
otherwise entitled to attend the deposition.
Why State Farm’s Proposal is Better:
State Farm’s proposal provides all Qualified Persons may stay in the room if Confidential
Information is discussed during a deposition if they are otherwise entitled to attend the deposition.
and
The simplified procedure provided in State Farm’s proposal clarifies the standard procedures
rights related to depositions.
11. The parties agree regarding the language of paragraph 11 of Plaintiffs’ Proposed Protective
Order, which corresponds with paragraph 11 of State Farm’s Proposed Protective Order.
12. The parties agree regarding the language of paragraph 12 of Plaintiffs’ Proposed Protective
Order, which corresponds with paragraph 12 of State Farm’s Proposed Protective Order.
Plaintiffs’ Protective Order State Farm’s Protective Order
Challenge Designation
13. At any time after the delivery of Confidential 14. After making a good-faith effort to resolve
Documents, and after making a good-faith any disputes regarding whether any
effort to resolve any disputes regarding designated materials constitute Confidential
whether any designated materials constitute Information, counsel of the party or parties
Confidential Information, counsel of the receiving the Confidential Information may
party or parties receiving the Confidential challenge such designation of all or any
Documents may challenge the Confidential portion thereof by providing written notice of
Page 14 of 18
Alma Pena v. State Farm Lloyds et aL (2014-CVF-001048-D1)
Comparison of Protective Orders
Plaintiffs’ Protective Order State Farm’s Protective Order
Challenge Designation
designation of all or any portion thereof by the challenge to the designating party’s
providing written notice of the challenge to counsel. The designating party shall have
counsel for the party disclosing or producing thirty (30) days from the date of receipt of a
the Confidential Documents. The party or written challenge to file a motion for specific
parties disclosing or producing the protection with regard to any Confidential
Confidential Documents shall have twenty Information in dispute. If the party or parties
(20) days from the date of receipt of a written producing the Confidential Information does
challenge to file a motion for specific not timely file a motion for specific
protection with regard to any Confidential protection, then the Confidential Information
Documents in dispute. If the party or parties in dispute shall no longer be subject to
producing the Confidential Documents does confidential treatment as provided in this
not timely file a motion for specific Order.
protection, then the Confidential Documents
in dispute shall no longer be subject to
confidential treatment as provided in this
Order.
Why Plaintiffs’ Proposal is Not Acceptable:
In State Farm’s experience, twenty days is too short a time to complete and file a motion for
protective order. Additionally the term “Confidential Documents” is not defined in Plaintiffs’
proposal.
Why State Farm’s Proposal is Better:
State Farm’s proposal provides a designating party thirty days to respond to a written challenge in
order to create consistency and provide a reasonable amount of time for a designating party respond
to a challenge. In addition it uses the term “Confidential Information,” which is consistent with the
other paragraphs in State Farm’s proposed protective order.
Plaintiffs’ Protective Order State Farm’s Protective Order
Hearing to Resolve Dispute
14. If a timely motion for specific protection is 15. If a timely motion for specific protection is
filed, any disputed document will remain filed, any disputed Confidential Information
confidential until a contrary determination is will remain subject to this Order until a
Page 15 of 18
Alma Pena v. State Farm Lloyds et aL (2014-CVF-001048-D1)
Comparison of Protective Orders
1 earin, ispute
made by the Court and all such documents, contrary determination is made by the Court.
information or testimony shall continue to be At any hearing the designating party shall
treated as Confidential Information until this have the burden to establish that party’s right
Court makes a contrary decision regarding to protection as if this Order did not exist. A
the status of the documents, information or party’s failure to challenge the Confidential
testimony. At any hearing to resolve a Information designation of any documents,
challenge of a Confidential designation, the ESI, information, or testimony does not
party designating the information as constitute an admission that the document,
“Confidential” shall have the burden to ESI, information or testimony is, in fact,
establish that party’s right to protection as if sensitive, confidential, or proprietary. No
this Order did not exist. A party’s failure to party waives its right to contend at trial or
challenge the designation of documents, hearing that such document, ESI,
information, or testimony as “Confidential” information or testimony is not sensitive,
information does not constitute an admission confidential, privileged or proprietary,
that the document, information or testimony provided the party provides notice of
is, in fact, sensitive, confidential, or intention to do so at least twenty (20) days
proprietary. No party waives its right to before such trial or hearing.
contend at trial or hearing that such
document, information or testimony is not
sensitive, confidential, privileged or
proprietary, provided the party provides
notice of intention to do so at least twenty
(20) days before such trial or hearing.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ proposal does not address electronically stored information.
Why State Farm’s Proposal is Better:
are
Defendants add electronically stored information to the list of relevant information. The parties
in general agreement regarding this paragraph.
15. The parties agree regarding the language of paragraph 15 of Plaintiffs’ Proposed
Protective
Order, which corresponds with paragraph 16 of State Farm’s Proposed Protective Order.
Page 16 of 18
Alma Pena v. State Farm Lloyds et aL (2014-CVF-001048-D1)
Comparison of Protective Orders
16. The parties agree regarding the language of paragraph 16 of Plaintiffs’ Proposed Protective
Order, which corresponds with paragraph 17 of State Farm’s Proposed Protective Order.
17. The parties agree regarding the language of paragraph 17 of Plaintiffs’ Proposed Protective
Order, which corresponds with paragraph 18 of State Farm’s Proposed Protective Order.
18. The parties agree regarding the language of paragraph 18 of Plaintiffs’ Proposed Protective
Order, which corresponds with paragraph 19 of State Farm’s Proposed Protective Order.
Plaintiffs’ Protective Order State Farm’s Protective Order
Case Closing/Destruction
20. Within forty-five (45) business days after the
final resolution of this litigation, the
plaintiff(s) shall return or destroy
Confidential Information they received
during this litigation. As to those materials
that contain or reflect Confidential
Information, but that constitute or reflect the
plaintiff(s) counsel’s own work product,
counsel for the plaintiff(s) are entitled to
retain such work product in their files in
accordance with the provisions of this
Protective Order, so long as the work product
is clearly marked to reflect that it contains
information subject to this Protective Order.
Plaintiff’s counsel is entitled to retain
pleadings, affidavits, motions, briefs, other
papers filed with the Court, deposition
transcripts, and the trial record even if such
materials contain Confidential Information,
so long as such materials are clearly marked
to reflect that they contain information
subject to this Protective Order and are
maintained in accordance with the provisions
of this Protective Order. Plaintiff’s counsel
shall certify in writing compliance with the
provision of this paragraph after forty-five
Page 17 of 18
Alma Pena v. State Farm Lloyds et aL (2014-CVF-001048-D1)
Comparison of Protective Orders
Plaintiffs’ Protective Order State Farm’s Protective Order
CaseC1osingfDeStruction--—-.-—
(45) business days after the final resolution
of this litigation.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ Proposed Protective Order omits clear procedures for the destruction or return of State
Farm’s Confidential Information after the resolution of the matter. This unreasonably enlarges the
likelihood that Confidential Information could be improperly or inadvertently disclosed to a non-
Qualified Person. Plaintiffs’ proposed order effectively grants an unlimited use license to each
an
plaintiff or their counsel to retain and use all State Farm’s Confidential Information received for
fair
unlimited period of time. That unlimited use is clearly beyond the scope of use necessary for the
adjudication of this claim.
Why State Farm’s Proposal is Better:
State
State Farm’s proposal reasonably limits the use of Confidential Information by requiring that
Farm’s Confidential Information will be destroyed following the resolution of the matter.
Page 18 of 18
____
Filed
2/10/2015 2.32: 57 PM
Esther Degollado
District Clerk
Webb District
2014CVF001048 Dl
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUThERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
Plaintiff, §
*
§ CIVIL CASE NO. H-____
§
§
§
Defendant.
PROTECTIVE ORDER
1. Proceedings and Information Governed. This Order (‘Protective Order’) is made
under Rule 26(c) of the Federal Rules of Civil Procedure (“FED. R. Civ. P.”).
or
This Protective Order applies to any document, information, or other tangible
to any other party, as well
intangible thing (collectively, “documents”) furnished by a party
this action,
as documents furnished by non-parties who receive subpoenas in connection with
party or non-pa rty as “Confi dential
if and when the documents are designated by a
of this
Information” or “Highly Confidential Information” in accordance with the terms
abstracts, analyses,
Protective Order. This Protective Order also applies to copies, excerpts,
summaries, descriptions, or other forms of recorded information or data containing,
reflecting, or disclosing all or parts of designated documents.
2. Designation and Maintenance of Docun nts and Information.
A. “Confidential Information” designation means that the document contains trade
commercial
secrets or commercial information not publicly known, which trade secrets or
accord ance with FED,
information is of technicalor commercial advantage to its possessor, in
kept confidential.
R. Cry. P. 26(c)(7), or other information required by law or agreement to be
B. The “flighty Confidential Information” designation means that the document
contains information that the producing especially sensitive, which may include,
but is not limited to, confidential rcsc rent, financial, technical, marketing,
Patent Protective 0rde 12/1/09 r
EXHIBIT
theday
and
Yexas
By tL17I) Deputy
any other sensitive trade secret information, or information capable of being utilized for the
preparation or prosecution of a patent application dealing with such subject matter.
C. “Confidential Information” and “Highly Confidential Information” does not
include, and this Protective Order does not apply to, documents already in the knowledge or
possession of the party to whom disclosure is made unless that party is already bound by an
agreement not to disclose such information, or information that has been disclosed to the
public or third persons in a manner making such information no longer confidential.
3. Documents Produced in Discovery and Depositions.
A. Documents and things produced during the course of this litigation within
as
the scope of paragraph 2(A) or 2(B) above, may be designated by the producing party
legend
containing “Confidential Information” by placing on each page and each thing a
substantially as follows:
CONFIDENTIAL INFORMATION
SUBJECT TO PROTECTIVE ORDER
the scope of
Documents and things produced during the course of this litigation within
ing “Highly
paragraph 2(A) above may be designated by the producing party as contain
thing a legend substantially as
Confidential Information” by placing on each page and each
follows:
HIGHLY CONFIDENTIAL INFORMATION
SUBJECT TO PROTECTIVE ORDER
B. Depositions
(i) For deposition testimony or exhibits to be entitled to protection under
deposition as
this Order, a party must designate the testimony and exhibits disclosed at a
ting the reporter
“Confidential Information” or “Highly Confidential Information” by reques
to so designate the transcript or any portion of the transcript at the time of the deposition.
(ii) If no such designation is made at the time of the deposition, any party
ipt of the deposition
has fourteen (14) days after delivery by the court reporter of the transcr
portions
session to designate, in writing to the other parties and to the court reporter, what
and
of the transcript and which exhibits the party designates as “Confidential Information”
“Highly Confidential Information.”
Patent Protective Order 1211/09
(iii) During the transcription and following fourteen (14) day period after a
deposition session, the transcript and exhibits must be treated as Highly Confidential
Information, unless the disclosing party consents to less confidential treatment of the
information.
(iv) Each party and the court reporter must attach a copy of any final and
timely written designation notice to the transcript and each copy of the transcript in its
possession, custody or control, and the portions designated in such notice must thereafter be
treated in accordance with this Protective Order. It is the responsibility of counsel for each
party to maintain materials containing Confidential Information or Highly Confidential
information in a secure manner and appropriately identified so as to allow access to such
information only to such persons and under such terms as is permitted under this Protective
Order.
(v) if no such designation is made at the deposition or within the fourteen
(14) day period following delivery of the transcript, then the entire deposition will be
considered devoid of Confidential Information or Highly Confidential Information.
4. Inadvertent Failure çjçinate.
A. The inadvertent failure to designate a documents as “Confidential
the
Information” or “Highly Confidential Information” will not be a waiver of a claim that
document contains confidential information, and will not prevent the producing party from
as the
designating such information as confidential at a later date in writing, so long
designation is done with particularity.
B. In the event a producing party late designates a document as “Confidential
by the
Information” or “Highly Confidential Information,” the document must be treated
notice of the “Confidentia l
receiving party as confidential from the time of receipt of the
Information” or “Highly Confidential Information” designation.
5. Challenges to Designations.
A party’s designation of documents “Confidential Information” or “Highly
Confidential Information” is not binding if the procedures below are followed:
A. A receiving party may challenge a producing party’s designation at any time.
Any receiving party may request in writing that the producing party change the designation.
must
The producing party within fourteen (14) days after receipt of a written challenge,
advise the receiving party whether or not it will change the designation.
Patent Protective Qrd2r 12/1/99 3
n
B. If the parties are unable to reach agreement after the expiration of this fourtee
ng party may
(14) day period, they shall confer. If they cannot resolve the issue, the receivi
ation.
seek an order to alter the confidential status of the designated inform
C. Until the presiding judge has ruled on a dispute under this paragraph, the
ation will remain
“Confidential Information” or “Highly Confidential Information” design
this Protective Order.
in full force and effect, and the document continues to be protected by
6. Disclosure and Use of Confidential Information.
y ential
A. Information designated as “Confidential Information” or “Highl Confid
appeal of this action.
Information” may only be used for PUfPOSCS of preparation, trial, and
ation” may not be used under any
“Confidential Information” or “Highly Confidential Inform
licensing, or for any other
circumstances for prosecuting any patent application, for patent
purpose.
ed by
B. Subject to paragraph 9 below, “Confidential Information” may be disclos
ed that such individuals are
the receiving party only to the following individuals, provid
yees of the receiving party
informed of the terms of this Protective Order: (a) two emplo
conduct of this litigation,
who are required in good faith to provide assistance in the
such in writing to counsel for
including any settlement discussions, and who are identified as
two in-house counsel who are
the designating party in advance of the disclosure; (b)
for the receiving party; (d)
identified by the receiving party; (c) outside counsel of record
legal secretaries, data entry
supporting personnel employed by (b) and (c), such as paralegals,
experts or consultants; and (1)
clerks, legal clerks, and private photocopying services; (e)
s as document coding, image
any persons requested by counsel to furnish service such
s, court reporting services,
scanning, mock trial, jury profiling, translation service
ter database from documents.
demonstrative exhibit preparation, or the creation of any compu
ation” may be
C. Subject to paragraph 9 below, “Highly Confidential Inform
individuals, provided that such
disclosed by the receiving party only to the following
(a) outside counsel of record
individuals are informed of the terms of this Protective Order:
by outside counsel, such as
for the receiving party; (b) supporting personnel employed
private photocopying services;
paralegals, legal secretaries, data entry clerks, legal clerks,
ated in paragraph 6(F)(c) below.
(c) experts or consultants; and (d) those individuals design
Confidential
D. Further, priorto disclosing “Confidential Information” or “Highly
or employees, the receiving
Information” to a receiving party’s proposed expert, consultant,
y Agreement in the form
party must provide to the producing party a signed Confidentialit
proposed expert or consultant,
attached as Exhibit A, the resume or curriculum vitae of the
Patent Protecrive Order 12/109
4
ting
the expert or consultant’s business affiliation, and any current and past consul
n (N) days
relationships in the industry. The producing party will thereafter have fourtee
ual. The
from receipt of the Confidentiality Agreement to object to any proposed individ
larity the reasons
objection must be made for good cause and in writing. stating with particu
al. If the
for the objection. Failure to object within fourteen (14) days constitutes approv
to the presiding
parties are unable to resolve any objection, the receiving party may apply
ual during
judge to resolve the matter. There will be no disclosure to any proposed individ
the producing party,
the fourteen (14) day objection period, unless that period is waived by
or the presiding
or if any objection is made, until the parties have resolved the objection,
judge has ruled upon any resultant motion.
E. Counsel is responsible for the adherence by third-party vendors to the terms
tion by obtaining a
and conditions of this Protective Order. Counsel may fulfill this obliga
t
signed Confidentiality Agreement in the form attached as Exhibi B.
may be
F. “Confidential Information” or “Highly Confidential Information”
information under this
disclosed to a person who is not already allowed access to such
authored by the person
Protective Order if (a) the information was previously received or
of the company for
or was authored or received by a director, officer, employee or agent
Civ. P. 30(b)(6); (b) the
which the person is testifying as a designee under FED. R.
is a director, officer,
designating party is the person or is a party for whom the person
ating the material agrees
employee, consultant or agent; or (c) counsel for the party design
that the material may be disclosed to the person.
r, the person, his or
In the event of disclosure under this section 6(F), only the reporte
may be made and who are
her counsel, the presiding judge, and persons to whom disclosure
disclosure or discussion of
bound by this Protective Order, may be present during the
Confidential Information.
ute a waiver of the
Disclosure of material pursuant to this section 6(F) does not constit
confidential status of the material so disclosed.
7. Non-Party Information.
any person producing
The existence of this Protective Order must be disclosed to
reasonably be expected to
documents, tangible things, or testimony in this action who may
or testimony. Any such
desire confidential treatment for such documents, tangible things
confidential pursuant to this
person may designate documents, tangible things, or testimony
Protective Order.
Palent Protective Order 12/1/09
5
8. Filing Documents With the Court.
Any party may submit Confidential Information to the court under seal by designating
the document “sealed” in the CM/ECF system of the court or may deliver the document for
filing by the Clerk’s Office. If a party delivers a copy tn the court, the document must be in
a sealed envelope bearing the caption of this action and a label containing the following:
CONFIDENTIAL INFORMATION
case captioni
This envelope, which is being filed under seal,
contains documents that are subject to a Protective Order
governing the use of confidential discovery material.
9. No Prejudice.
Producing or receiving “Confidential Information” or “Highly Confidential
not: (a)
Information,” or otherwise complying with the terms of this Protective Order, will
dential Inform ation” or
operate as an admission by any party that any particular “Confi
other type of
“Highly Confidential Information” contains or reflects trade secrets or any
to object to the
confidential or proprietary information; (b) prejudice the rights of a party
within the scope
production of information or material that the party does not consider to be
the presiding
of discovery; (c) prejudice the rights of a party to seek a determination by
to apply to the
judge that particular materials be produced; (d) prejudice the rights of a party
agreeing in
presiding judge for further protective orders; or (e) prevent the parties from
Protective Order
writing to alter or waive the provisions or protections provided for in this
with respect to any particular information or material.
10. Conclusion of Litigation.
tion of
Within sixty (60) days after final judgment in this action, including the exhaus
ent agreem ent, each
all appeals, or within sixty (60) days after dismissal pursuant to a settlem
obligation to
party or other person subject to the terms of this Protective Order is under an
destroy or return to the producing party all materials and documents contain
ing “Confidential
ing party that
Information” or “Highly Confidential Information,” and to certify to the produc
is entitled
this destruction or return has been done. However, outside counsel for any party
y work provid ed that any such
to retain all court papers, trial transcripts, exhibits, and attorne
tive Order.
materials are maintained and protected in accordance with the terms of this Protec
Patent Protective Order 12/1/09 6
_____day
11. Other Proceedings.
By entering this Protective Order and limiting the disclosure of information in this
that
case, the presiding judge does not intend to preclude another court from finding
information may be relevant and subject to disclosure in another case. Any person
or party
r party’s
subject to this Protective Order who may be subject to a motion to disclose anothe
this Protective
information designated “Confidential” or “Highly Confidential” pursuant to
have an opportunity
Order must promptly notify that party of the motion so that the party may
to appear and be heard on whether that information should be disclosed.
12. Remedies.
ns set forth
It is ORDERED that this Protective Order will be enforced by the sanctio
presidi ng judge,
in FED. R. Civ. P.37(a) and any other sanctions as maybe available to the
tive Order in contempt.
including the power to hold parties or other violators of this Protec
Protective Order are
All other remedies available to any person injured by a violation of this
fully reserved.
13. Relief from Protective Order.
if the party desires
Any party may petition the presiding judge for good cause shown
relief from a term or condition of this Protective Order.
Signed at Houston, Texas, this of , 20_.
[Judge’s Name]
United States District Judge
cert
I
By
Patent Protective Order I 2/I O9
7
_____________________________ ______,
_________
Exhibit A
[CAPTION]
CONFIDENTIALITY AGREEMENT FOR EXPERT,
CONSULTANT OR EMPLOYEES OF ANY PARTY
I, , under penalty of perjury, 28 U.S.C. § 1746, that:
1. Information, including documents and things, designated as ‘Confidential
InformationH or “Highly Confidential Information,” as defined in the Protective Order entered in the
and
above-captioned action (‘Protective Order”), is being provided to me pursuant to the terms
restrictions of the Protective Order.
2. 1 have been given a copy of and have read the Protective Order.
3. I am familiar with the terms of the Protective Order and I agree to comply with and
to be bound by its tenns.
4. I submit to the jurisdiction of the United States District Court for the Southern
District of Texas for enforcement of the Protective Order.
5. 1 agree not to use any “Confidential Infonnation” or “Highly Confidential
Information” disclosed to me pursuant to the Protective Order except for purposes
of the above-
than those
captioned litigation and not to disclose any of this information to persons other
the express written consent of the party who
specifically authorized by the Protective Order, without
designated the information as confidential or by order of the presiding judge.
6. 1 also agree to notify any stenographic, clerical or technical personnel who are
on them and me.
required to assist me of the terms of this Protective Order and of its binding effect
7. I understand that I am to retain all documents or materials designated as or containing
and that all
“Confidential Information” or “Highly Confidential Information” in a secure manner,
completion of my
such documents and materials are to remain in my personal custody until the
all copies
assigned duties in this matter, whereupon all such documents and materials, including
any “Confidentia l Information” or “Highly
thereof, and any writings prepared by me containing
with such documents and
Confidential Information” are to be returned to counsel who provided me
materials.
Signed at ,this .20
Patent Protective Order
_____
_____ ____________________,under
________
__________,
____
ExhibitB
[CAPTION]
CONFIDENTIALITY AGREEMENT FOR THIRD-PARTY VENDORS
I, penalty of petjuly, 28 U.S.C. § 1746, that:
1. Information, including documents and things, designated as “Confidential
entered in the
Information” or “Highly Confidential Information” as defined in the Protective Order
nt to the terms and
above-captioned action (“Protective Order”), is being provided to me pursua
restrictions of the Protective Order.
2. I have been given a copy of and have read the Protective Order.
y with and
3. I am familiar with the terms of the Protective Order and I agree to compl
to be bound by its terms.
rn
4. 1 submit to the jurisdiction of the United States District Court for the Southe
District of Texas for enforcement of the Protective Order.
Information
5. 1 agree not to use any Confidential Information or Highly Confidential
purpos es of the above- captioned
disclosed to me pursuant to the Protective Order except for
other than those specifi cally
litigation and not to disclose any of this information to persons
t of the party who designated
authorized by the Protective Order, without the express written consen
the information as confidential or by order of the presiding judge.
this , day of 20.
at
Signed
Signature
Patent Protectvc Order 12’[/09
Filed
2/10/2015 2:3257 PM
Esther Degollado
District Clerk
Webb District
2014CVF001048 Dl
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
§
§
Plaintiff §
§
§ CIVIL ACTION NO.
§
§
Defendant §
CONFIDENTIALITY AND PROTECTIVE ORDER
Before the court is the joint motion of the parties for the entry of a confidentiality and
as
protective order (“Protective Order”). Añer careful consideration, it is hereby ORDERED
follows:
I. Classified Information
is
“Classified Information” means any information of any type, kind, or character that
by any of the
designated as “Confidential”, “For Counsel Only”, or “Attorneys Eyes Only”
ed in a document,
supplying or receiving persons, whether it be a document, information contain
gatory answer, or
information revealed during a deposition, information revealed in an interro
otherwise.
2. Qualified Persons
“Qualified Persons” means:
a. For Counsel or Attorneys Only information:
i. retained counsel for the panics in this litigation and their respective staff;
ii. actual or potential independent experts or consultants (and their
administrative or clerical stafi) engaged in connection with this litigation
(which shall not include the current employees, officers, members, or
agents of parties or affiliates of parties) who, prior to any disclosure of
Classified Information to such person, have signed a document agreeing to
be bound by the terms of this Protective Order (such signed document to
be maintained 4attorney retaining such person) and have been
EXHIBIT
designated in writing by notice to all counsel;
iii. this court and its staff and any other tribunal or dispute resolution officer
duly appointed or assigned in connection with this litigation.
b. For Confidential information:
i. the persons identified in subparagraph 2(a);
ii. the party, if a natural person;
iii. if the party is an entity, such officers or employees of the party who are
actively involved in the prosecution or defense of this case who, prior to
any disclosure of Confidential information to such person, have been
designated in writing by notice to all counsel and have signed a document
agreeing to be bound by the terms of this Protective Order (such signed
document to be maintained by the attorney designating such person);
iv. litigation vendors, court reporters, and other litigation support personnel;
v. any person who was an author, addressee, or intended or authorized
recipient of the Confidential information and who agrees to keep the
information confidential, provided that such persons may see and use the
Confidential information but not retain a copy.
unity to
e. Such other person as this court may designate after notice and an opport
be heard.
3. Designation Criteria
ation
a. Nonclassified Information. Classified Information shall not include inform
that either:
i. is in the public domain at the time of disclosure, as evidenced by a written
document;
ii. becomes part of the public domain through no fault of the recipient, as
evidenced by a written document;
iii. the receiving party can show by written document was in its rightful and
lawful possession at the time of disclosure: or
iv. lawfully comes into the recipient’s possession subsequent to the time of
disclosure from another source without restriction as to disclosure,
provided such third party has the right to make the disclosure to the
receiving party.
b. ClassUled Information. A party shall designate as Classified Information only
[21
ation that is
such information that the party in good faith believes in fact is confidential. Inform
als, and the
generally available to the public, such as public filings, catalogues, advertising materi
like, shall not be designated as Classified.
e, but
Information and documents that may be designated as Classified Information includ
ation, operational
are not limited to, trade secrets, confidential or proprietary financial infonn
ation that is
data, business plans, and competitive analyses, personnel files, personal inform
forth in this order,
protected by law, and other sensitive information that, if not restricted as set
al injury or potential
may subject the producing or disclosing person to competitive or financi
legal liability to third parties.
nonparties may
Correspondence and other communications between the parties or with
with the understanding
be designated as Classified Information if the communication was made
generally available to the
or reasonable expectation that the information would not become
public.
c. For Counsel or Attorneys Only. The designation “For Counsel Only” or
d to be unknown to the
“Attorneys Eyes Only” shall be reserved for information that is believe
party. For purposes of this
opposing party or parties, or any of the employees of a corporate
product formula information,
order, so-designated information includes, but is not limited to,
ation, customer identification
design information, non-public financial information, pricing inform
data, and certain study methodologies.
ate the need for
d. Ultrasensitive information. At this point, the parties do not anticip
ation. However, in the
higher levels of confidentiality as to ultrasensitive documents or inform
ation be produced, the parties
event that a court orders that ultrasensitive documents or inform
ation protocol in advance of
will negotiate and ask the court to enter an ultrasensitive inform
production to further protect such information.
4. Use of Classified Information
in the course of this
All Classified Information provided by any party or nonparty
[3]
on
litigation shall be used solely for the purpose of preparation, trial, and appeal of this litigati
and for no other purpose, and shall not be disclosed except in accordance with the terms hereof
5. Marking of Documents
Documents provided in this litigation may be designated by the producing person or by
ated with a
any party as Classified Information by marking each page of the documents so design
neys Eyes
stamp indicating that the information is “Confidential”, “For Counsel Only”, or “Attor
ed, the
Only”. In lieu of marking the original of a document, if the original is not provid
preserved for
designating party may mark the copies that are provided. Originals shall be
inspection.
6. Disclosure at Depositions
t or former
Information disclosed at (a) the deposition of a party or one of its presen
s, independent experts
officers, directors, employees, agents, consultants, representative or
of a nonparty may be
retained by counsel for the purpose of this litigation, or (b) the deposition
record at the deposition
designated by any party as Classified Information by indicating on the
t to the provisions of this
that the testimony is “Confidential” or “For Counsel Only” and is subjec
Order.
tion as Classified
Any party also may designate information disclosed at a deposi
receipt of the transcript of
Information by notifying all parties in writing not later than 30 days of
as Classified Information
the specific pages and lines of the transcript that should be treated
the face of the transcript
thereafter. Each party shall attach a copy of each such written notice to
l. All deposition transcripts
and each copy thereof in that party’s possession, custody, or contro
shall be treated as For Counsel Only for a period of 30 days after initial
receipt of the transcript.
te transcripts
To the extent possible, the court reporter shall segregate into separa
utively numbered pages
information designated as Classified Information with blank, consec
ipt containing Classified
being provided in a nondesignated main transcript. The separate transcr
main transcript.
Information shall have page numbers that correspond to the blank pages in the
tions
Counsel for a party or a nonparty witness shall have the right to exclude from deposi
[4]
nt to this Protective
any person who is not authorized to receive Classified Information pursua
s of examination or
Order, but such right of exclusion shall be applicable only during period
testimony during which Classified Information is being used or discussed,
7. Disclosure to Qualified Persons
a. To Whom. Classified Information shall not be disclosed or made available by the
ary to comply with
receiving party to persons other than Qualified Persons except as necess
ed, however, that in
applicable law or the valid order of a court of competent jurisdiction; provid
ng party will so notib’ the
the event of a disclosure compelled by law or court order, the receivi
g such disclosure)
producing party as promptly as practicable (if at all possible, prior to makin
ation. Information
and shall seek a protective order or confidential treatment of such inform
Qualified Persons described
designated as For Counsel Only shall be restricted in circulation to
in subparagraph 2(a).
b. Retention of Copies During this Litigation. Copies of For Counsel Only
l for the receiving party and,
information shall be maintained only in the offices of outside counse
, in the offices of those
to the extent supplied to experts described in subparagraph 2(a)(ii)
ication, that are provided
experts. Any documents produced in this litigation, regardless of classif
Qualified Person and only
to Qualified Persons shalt be maintained only at the office of such
Copies of documents and
necessary working copies of any such documents shall be made.
independent copy services.
exhibits containing Classified Information may be prepared by
printers, or illustrators for the purpose of this litigation.
el Only
c. Each party’s outside counsel shall maintain a log of all copies of For Couns
documents that are delivered to Qualified Persons.
8. Unintentional Disclosures
ied Information later
Documents unintentionally produced without designation as Classif
the date written notice of
may be designated and shall be treated as Classified Information from
the designation is provided to the receiving party.
ential information or
If a receiving party learns of any unauthorized disclosure of Confid
[5]
For Counsel Only information, the party shall immediately upon learning of such disclosure
inform the producing party of all pertinent facts relating to such disclosure and shall make all
reasonable efforts to prevent disclosure by each unauthorized person who received such
information.
9. Documents Produced for Inspection Prior to Designation
In the event documents are produced for inspection prior to designation, the documents
ng
shall be treated as For Counsel Only during inspection. At the time of copying for the receivi
el Only”,
parties. Classified Information shall be marked prominently “Confidential”, “For Couns
or Attorneys Eyes Only” by the producing party.
10. Consent to Disclosure and Use in Examination
Nothing in this order shall prevent disclosure beyond the terms of this order if each party
if court,
designating the information as Classified Information consents to such disclosure or the
anything in
after notice to all affected parties and nonparties, orders such disclosure. Nor shall
examination
this order prevent any counsel of record from utilizing Classified Information in the
an author, source,
or cross-examination of any person who is indicated on the document as being
such information.
or recipient of the Classified Information, irrespective of which party produced
11. Challenging the Designation
a. Classified Information. A party shall not be obligated to challenge the propriety
to
of a design ation of Classified Information at the time such designation is made, and a failure
that any party to
do so shall not preclude a subsequent challenge to the designation. In the event
this litigation disagrees at any stage of these proceedings with the designation of
any information
in good faith on an
as Classified InUormation, the parties shall first try to resolve the dispute
be resolved, the
informal basis, such as by production of redacted copies. If the dispute cannot
to the party who
objecting party may invoke this Protective Order by objecting in writing
ating party shall
designated the document or information as Classified Information. The design
of the disputed
then have 14 days to move the court for an order preserving the designated status
and until the
information. The disputed information shall remain Classified Information unless
[6]
the status of
court orders otherwise. Failure to move for an order shall constitute a termination of
such item as Classified Information.
h. Qualified Persons. In the event that any party in good faith disagrees with the
lar Classified
designation of a person as a Qualified Person or the disclosure of particu
in good faith on an
Information to such person. the parties shall first try to resolve the dispute
14 days from the
informal basis. If the dispute cannot be resolved, the objecting party shall have
ted subsequent
date of the designation or, in the event particular Classified Information is reques
t to move the court
to the designation of the Qualified Person, 14 days from service of the reques
, or (b) access to
for an order denying the disposed person (a) status as a Qualified Person
of demonstrating
particular Classified Information. The objecting person shall have the burden
to the risk of serious
that disclosure to the disputed person would expose the objecting party
ied Information shall be
harm. Upon the timely filing of such a motion, no disclosure of Classif
preserving the designation.
made to the disputed person unless and until the court enters an order
12. Manner of Use in Proceedings
its, declarations,
In the event a party wishes to use any Classified Information in affidav
on, the party shall do one of the
briefs, memoranda of law, or other papers filed in this litigati
a redacted copy of the
following: (1) with the consent of the producing party, file only
discovery and evidentiary motions)
information; (2) where appropriate (e.g., in connection with
such information under seal with
provide the information solely for in camera review; or (3) file
the court consistent with the sealing requirements of the court.
13. Filing Under Seal
ents, transcripts of
The clerk of this court is directed to maintain under seal all docum
papers filed under seal in
deposition testimony, answers to interrogatories, admissions, and other
as Classified Information by any
this litigation that have been designated, in whole or in part,
court.
party to this litigation consistent with the sealing requirements of the
14. Return of Documents
related to it, any
Not later than 120 days after conclusion of this litigation and any appeal
[7]
Classified Information, all reproductions of such information, and any notes, summaries, or
descriptions of such information in the possession of any of the persons specified in paragraph 2
(except subparagraph 2(a)(iii)) shall be returned to the producing party or destroyed, except as
this court may otherwise order or to the extent such information has been used as evidence at any
trial or hearing. Notwithstanding this obligation to return or destroy information, counsel may
retain attorney work product, including document indices, so long as that work product does not
duplicate verbatim substantial portions of the text of any Classified Information.
15. Ongoing Obligations
Insofar as the provisions of this Protective Order, or any other protective orders entered
it, such
in this litigation, restrict the communication and use of the information protected by
that (a) there
provisions shall continue to be binding after the conclusion of this litigation, except
ts
shall be no restriction on documents that are used as exhibits in open court unless such exhibi
ing party or
were filed under seal, and (b) a party may seek the vTitten permission of the produc
other, protective
order of the court with respect to dissolution or modification of this, or any
order.
16. Advice to Clients
y’s
This order shall not bar any attorney in the course of rendering advice to such attorne
y’s evaluation
client with respect to this litigation from conveying to any party client the attorne
terms of this order;
in a general way of Classified Information produced or exchanged under the
g the client,
provided, however, that in rendering such advice and otherwise communicatin with
ation produced by
the attorney shall not disclose the specific contents of any Classified Inform
Order.
another party if such disclosure would be contrary to the terms of this Protective
17. Duty to Ensure Compliance
ably
Any party designating any person as a Qualified Person shall have the duty to reason
sible upon
ensure that such person observes the terms of this Protective Order amid shall be respon
tive Order.
breach of such duty for the failure of such person to observe the terms of this Protec
[8]
________
__________
18. Waiver
Pursuant to Federal Rule of Evidence 502, neither the attorney-client privilege nor work
product protection is waived by disclosure connected with this litigation.
19. Modilication and Exceptions
The parties may, by stipulation, provide for exceptions to this order and any party may
seek an order of this court modifying this Protective Order.
It is SO ORDERED this day of 20
UNITED STATES DISTRICT JUDGE
[9]
Filed
‘EBB CO DISTRICT CLERK Fax:96—523—5121 Jan 26 2015 57 PM
s erDegoIlado
14 flt Clerk
1/22/2015 1
E1tgt
Webb District
201 4-CVF-D01 048- Dl
CA U SE NO. 2O14-C’ I-OO1O48--Dl
ALMA PENÃ, § IN ‘l’FTE DISTRICT COURT OF
Plaintiff, §
§
§ WItBB COULV, TEXAS
STATE FARM LLOYDS AND §
IJECKY LANIER, §
l)efeinliints. § 49TH fl DICIA I DISTRI( T
PROTECTIVE ORDER
[ins Court finds that a Protective Order is warranted to protect Coittidential Information,
which will be produced by the parties and non—parties in this litigation, and dun the following
provisions, limitations, and prohibitions are appropriate pursuant to and in contornutv with the
Texas Rules of Civil Procedure. Therefore, ii is hereby ORDERED hat:
shall
• All Confidential Information produced or exchanged in the course of this litigation
he used solely for the purpose of the preparalion and trial of this litigation and other related
litigation against State Fami Lloyds (including its employees) or ally third party adusting
anchor
firm (including its employees) that adjusted claims arising out hailsiorins
windstorms in Texas with a date of loss iii 2013, and fl_r no other purpose. “Related
Lloyds
Litigation” means a first-party lawsuit in Texas by a insured against Slate lanu
br
and its adjusters or adjusting companies that produced the Confidential Iniorniatioll
damages to insured property arising out of hailsborins and’or windstorms in Texas with a
date of loss in 2013 Confidential Infonuation shall nob he discIoed to any person except
in accordane’e with the terms of this Order.
is
2. “Confidential Inforniauon,” as used herein, means any udonnalion of any Ivpc which
OPyOfHn_icert,.
ØfIcndre
LJ
By
WEBB CO DISTRICT CLERK Fax:956—523—5121 Jan 262015 O2:09p P008/018
designated as “Coafidential” by any ol the supplying or receiving parties. including
information received from non—parties. whether it is a document, information contained in a
document, information revealed during a deposition, infonmition revealed in an
intelTogatorv answer or otherwise. At the sole discretion of the producing party, the
produemg party may place on any documents that are subject to this Protective Order, bales
numbers and/or a legend to indicate the document is “Confidential.” subject to a Protective
Order and is produced under the specific cause number: however, the nroducui paiiv shall
not label designated documents with a watennark.
3. The disclosure of Confidential Infonnation is restricted to Qualified Pcrsons. ‘‘Qualified
Persons,” as used herein, means: the parties to pending litigation arising out of Iiailstorms
and;or wiudstornis in Texas a date ot’!oss in 2013: their respective counsel: counsd’s staff:
expert witnesses; outside sen’ice providers and consultants providing services related to
document and ES! processing, hosting, review, and production: the Court: other court
officials (including court reporters); the trier of’ fact pursuant to a sealing order; and any
person so designated pursuant to paragraph 4 herein. If this Court so cccts. any other
person may he designated as a Qualified Person by order of this Court. alter notice to all
parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential Information 10
a person who is not a Qualified Person or counsel for the party dcsigTnun2 party, and
consent shall not be unreasonably withheld. however, until said requesting party receives
written consent to further disclose the Confidential Information, the l’urtiwr disclosure is
hereby prohibited and shall not be made absent further order of this Court. If the
designating party grants its consent, then the person granted consent stiad become a
Page 2
I
Y?EBB CD DISTRICT CLERK Fax:956—523—5121 Jan 26 2D15 D2:DYpm P009/DiB
Qualified Person under this Order.
5. Lead counsel for cacti party shall provide a copy of this Order Lu any person to \khOni
Confidential Information is to be disclosed, including each paila such counsel represents.
and shall advise such person of the scope and effect of the confidentiality prov:sionS of this
before
Order and the possibility of punishment by contempt fir violation thereof Further.
lead counsel for the party d:cetos rig the
disclosing Confidential Information to any person.
her to
information shall obtain the written acknowledgment of that person binding him or
A”
the terms of this Order. The written acknowledgment shall be in the fbnn u:’ “Eshibit
attached hereto. Lead counsel for the disclosing part> shall retain the original written
for
acknowledgment, and furnish a copy of the signed written acknowledgment to counsel
the party dcsiiating the infonnation as confidential within ten (10) business days.
of
6. Infonitation shall he designated as Confidential Infonnation within the meaning
tills
produced:
Protective Order hy following the protocol below that con’esponds to the formal
the
a. For hard—copy documents, hv marking (lie first Bates—stamped page of
document and each subsequent Bales—stamped page thereof containing Confidential
ProprielaryProdneed
Information with the following legend: “Confidential &
Pursuant to a Conf A’ee./Prot. Order” or “Confidential Prcpnetarv & Trade
Secret. Produced Pursuant to a Conf. Agree.,Prot. Order,” but not so as to obscure.
the content of the document.
the
h. For static image productions by marking the lirst Bates—stamped page ol’
document and cach subsequent Bates-stamped page thereol containing Coatidcntial
hrtbrniation with (he following legend: “Confidential .s Propr:ctar’v Produced
Pursuant to a Conf. Agree./Prot. Order” or “Confidential Propnctarv & Trade
i’aec 3
868 CO DISTRICT CLERIC Fax:955-523-5121 S 28 2015 O2:1i P010/018
Secret/Produced Pursuant to a Cont Agree./Prot. Order.” but not so as
to obscure
the content of the image.
media for ESI
c. For native format productions, by prominently labeling the delivery
Confidential Jnfomiation as follows: “Confidential &
designated as
“Confideiflüil
Pmprietazy’roduced Anuant to a Coil. Agree./Prot. Order” or
” In
Proprietary & Trade Secret/Produced Pursuant to a Con!: Agree.: hot. Order.
may have
addition, at the election of the producing party, the electronic file
identifier) the
appended to the file’s name (immediately following its Bates
following protective legend: “CONFIDENTIAL
J1?OOlO48DI: Alma
SUBJ_TQPROTECTIVE9RDERJN Cause Na 2OJ4C
Webb
Pena v. State Farm Lloyds and Betty Limier: in the 49th District Cowl.
copy or static
County, Texas.” When any file so designated is converted to a hard
each page a
image for any purpose, the document or image shall bear cm
file containing
protective legend as described in 6.a. and 6.b. above. Ii’ a native
r, trial, or is
Confidential Information is used during a deposition, mcci and conl
relrendng, or
otherwise disclosed post-production, the parry introducing,
submitting the native file must append the the file’s name
(immediately following
FII)ENTIAL
its Bates identifier) the following protective legend: “CON
olO4WI: Alma
SUBJ_TQPRC)TECTIVE_ORDERJN Cause Na 2OIWlF-O
t Court, Webb
Pena v. &ate Farm Lloyds and Becky Lanier; in the 49th Distric
name. Any
County, Texas,” if such legend does not already appear in the file
deposition.
party using a native tile containing Confidential Information in a
so that ills reflected
hearing, or at trial must indicate the designation on the record
Page 4
WEBB CD DISTRICT CLERK Fax:956—523—5121 Jan 262015 02:lOpm P011/018
in the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may niace en any
hard—copy documents that are subject to this Protective Order ‘ aternoirks or seals
to indicate the document is subject to a Protective Order and is produced under tile
specific cause number.
7. Airy’ party who inadvertently discloses Conlidential Information during the discovery
process shall. iinniediateiv upon discovery of the inadvertent dsciosure, give notice in
writing to the party or parties in possession of such intbmiation that the inforniation is
designated as “Confidential” and shall request its immediate return. Alter reCeIpt of such
notice, the parties shall treat the information so designated as ConficienIia int’omiation
iindei’ the terms of this Order, unless released of this duty by ilirther order of this Court,
Additionally, an party who inadvertently discloses Confidential Information during the
discovery process shall, immediately upon discovery of the inacverlen’. dselositre give
notice in writing to the lrty which produced and provided this information, the nanies and
addresses of the persons to whom it was disclosed and the date of the disclosure together
with a copy of the notice by which the inadvertently disclosing party rcquested the
ininiedi ale return of the documents.
8. Information previously produced during this litigation and not already marked as
Confidential Infhmiation shall be retroactively designated within thirty t3h,i days of entry
of this Order by providing written notice to the receiving parties of the Bates identifier or
other identifying characteristics for the Confidential Infonriation.
a. Within thirty (30) days of receipt of such notice, or such oilier Lime as may be
agreed upon by the parties. any parties recev ing such notice shall sciurn to the
Pace S
WEBB CO DISTRICT CLERK Fax:956—523—5121 Jan 262015 02:lOpm P012/018
designating party all undesiRnated copies of such inlonnaton in their custody and
possession, in exchange tbr the pmduction of properly designated jnfhnnation. or
alternatively (upon the a’eement of the palies) shall ti)atffix the legend to all
copies of such designated information in the party’s possession. custody, or control
consistent with the terms of this Protective Order. and:or (ii) with respect to ESI.
take such reasonabLe steps as will reliably identify the item(s) as having been
designated as Confidential Information.
h. Information that is unintentionally or inadvertently produced \v:tnoUt being
designated as Confidential Information may he retroactively designated by the
producing party in the manner described in paragraph Ta. above, it’ a retroactive
designation is provided to the receiving party in accordance with texas Rule of
Civil Procedure 1933(d) the receiving party mnst (i) make 110 further disclosure ot’
such designated infhrmation except as allowed under this Order: ii; take reasonable
steps to notify any persons sho were provided copies of such designated
information of the terms of (his Order: and (ni) take reasonable steps to reclaim any
such designated information in the possession of any person riot permtted access to
such in,tbrmation under (lie terms of this Order. No party shall he deemed to have
violated this Order for any disclosures made prior to notification of any subsequent
desinnation.
9. Any party may’ request the party designating intbrniaton as “Confidential’ to consent to re
designate confidential information as not confidential, which request shall not he rejected
absent a good—faith determination by the designating part that the Confidential
Information is entitled to protection.
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WEBB CO DISTRICT CLERK Fax:856—523—5121 Jan 262015 02:llpni P013/018
this Order on! if
10. Deposition testimony is Confidential lnftjmiation under the terms of
counsel for a party advises the court reporter and opposng counse
l of that desgnaton at
r within thirtY
the deposition, or by written designation to all parties and the court reporte
(3O business da\s after receiving the deposition transcript II deposition Iranseripls shall
the deposition
be considered confidential until thirty (30) days following the receipt
of
aion of said information as
transcript. The court reporter shall note on the record the design
Confidential and shall separately transcribe those portions of the testimom and mark the
may use Confidential
fhce of such portion of the transcript as “Confidential.” Ilie patties
d of the terms of’ this
Information during any deposition, provided the witness is apprise
“A.” i1ie parties may
Order and executes the acknowledgment attached hereto as Ediihit
the room rcared of all
use Confidential Information during a depostlion only if
is first
persons except the court reporter, the witness being deposed, counsel for the parties and
any expert entitled to attend, and only it’ said witnes
s executes the acknowledgement
attached as Exhibit ‘A.”
ses to
Ii. In the case of inleiTogatorv answers, responses to request for production. and respon
In fonnation will he made by
requests for admissions, the designation of Confidential
:irig that the answers or responses
means nt a statement in the answers or responses specitS
ation A producing party
or specific parts thereof’ are designated as Confidential Inform
gatory answers or responses to
shall place the thilowing legend on each page of the interro
requests fhr admission: “Contains Confidential Infoniianon.”
confer or otherwise exchanged in
12. Confidential Information disclosed during a meet and
counsel flr the disclosing
informal discovery’, shall be protected pursuant to this Order ti’
ential inibimathm. II’ the
party ad ises the receiving party the information is Confid
Pace 7
WEBB CO DISTRICT CLERK Fax:956—523—5121 Jan 262015 02:11p P014/018
Confidential Information discloser! during a meet and confer or other\\ se excianged in
informal discovery is in the form of hard-copy documents. static’ images. or native tiles.
that information shall he designated as Confidential Information pursuant to paragraphs 6
a., h., and; or c. depending on the format of Ih materials introduced.
13. Al any time afler the de1iver’ of Confldential Docuntents. and afler making a good-faith
effort to resolve any disputes regarding whether any designated mnatcriats constitute
Confidential Information, counsel of the party or partles receiving the Conlidential
Documents may challenge the Confidential designation of all or am portion thereof’ by
proviclmg written notice of the challenge to counsel for the party disclosing or producing
the Confidential Documents. The party or parties disclosing or producing the Confidential
Documents shall have twenty (20) days from the date of receipt ol a nttcn challenge to
dispute.
file a motion for specific protection with regard to any Coni-idential Documenis in
If the party or parties producing the Confidential Documents does not timely iltC ii motion
he
for specific protection, then the Confidential Documents in dtspute shad no longer
subtect to confidential treatment as provided in this Order.
14. If a timely motion for specific protection is tiled. am disputed document will remain
confidential until a contrary determination is made by the Court and all such documents,
this
inIbnmiation or testimony shall continue to be treated as Confidential Information uniil
Court makes a contrary decision regarding the status of the documents, inf’onnation or
testjmony. At any hearing to resolve a challenge of a Conlidential designation, the party
designating the information as “Confidential’ shall have the burden to c’sahlish that prt\’s
i’ight to protection as if this Order did not Cyisi A partvs fiulure to challenge the
designation ot’ documents. information, or testimony as “Confidential” information does
Pa 8
WEBB CO DISTRICT CLERK Fax:956—523—5121 Jan 26 2015 D2:l2pio P015/018
testimon’, fhct.
not constitute an admission that the document, inlLimation or
is. in
d at trod or hearing
sensitive, confidential, or proprietary. No party waives its right to conten
that such document. intrirmation or testimony is ttot sensitive, confid
ential. ontiegcd or
at least twenty (20)
proprietary, provided the party provides noilce of intention to do so
days he(bre such trial or hearing.
that make reference toContidentiai
15. Any papers flied with the Court in this actton
be considered Confidential
Information, or contain information derived therefrom, shall
These papers shall be tiled
Intonriation and shall he governed by the terms of this Order,
Office so long as the materials
tinder seal and shall remain sealed with the District Clerk’s
retain their stratus as Confidential Inibrmation.
ure. production, or exchange of
16. Pursuant to the agreement of the pae1es. no disclos
ble attoniev—cttcnt privilege
infbnnation in this case shall constitute a waiver ofaity’ applica
this oranv otler federal or slate
or of any applicable work product protection in
ed, exeliaaged.
proceeding. This Protective Order applies to any information disclos
whether intentionally’ or inadvertently among the parties, their
produced. or discussed
—
—
) in the course of th!s litigation.
counsel and/or any agents (such as vendors and experts
product protected ritoi’niatiOn, tile
Upon learning of a production of’ privileged or work
counsel at record notice of the
producnig party shall within ten (tO) days give all
193.3(d). ‘11w receiving party must
production pursuant to Texas Rule of Civil Procedure
ation and all copies and destroy
promptly return, sequester or destroy the produced inform
the substance of the privileged or
am notes that reproduce. copy, or otherwise disclose
work product protected information.
shall not he deemed a waIver of:
17. Further. production pursuant to this Protective Order
Page 9
WEBB CD DISTRICT CLERK Fax:956—523—5121 Jan 26 2015 02:12pm P016/018
a. Any pony’s right to ohect to aviv discovery request on any ground.
b. Any party’s right to seek an order compelling discovery with respeci to any
discovery request.
c Any party’s use and review of its own Confidential hiforniation in its sole and
eoup1ete discretion,
ci. The status of any material as a trade secret.
18. Any Qualified Person who obtains inibnnation pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
ibis Order shall remain in effect unless or until amended, altered. modified, or
vacated h the Court or by the written agreement of all parties to this action filed with
the Court. pursuant to Rule 11 of the Te’sas Rules of Civil Procedure.
It [S SO ORDERED on this day of_______ . 2015.
JUDGE PRESIDING
Page 10
________
___________
_______
W88 Co DISTRICT CLERK Fax:956—523—5121 .ian 26 2015 02:12pm P017/018
EXHIBIT “A”
CAUSE NO. 2014-CVF.-0011J48-l)1
ALMA PP NA. § IN THE DISTRICT COURT OF
Plain ii if, §
§
V. § WEBB COUNTY. TEXAS
§
STATE FARM LLOYDS ANI) §
BECKY LANIER, §
Dc fencE aids. § 49TH JUDICIAL i)ISTRICT
R
AGREEMENT TO BE BOUND BY PROTECTflE ORDE
of at order to ae orovtdcd access to
1. ,
-
,
entered in the 49th Judicial
__
—__________________
information designated as “Confidentiaf’ under the Brat earl ye Order
2014-CVF-OOit)4X-D1 .Alma
District Court of Webb County. Texas (the ‘Court”) iii Cause No.
nt and agree as thilows:
Bena v. State Farm Lloyds ant/Becky Lamer (the “La\ssuit”). represe
entered Lw the Court in the
1 1 have been provided with a copy of the Protective Order
Lawsuit, 1 have reviewed said copy and I ant familiar with its terms.
which I am given access in
2. With regard to any and all ‘Confidenliar information to
ions 0! nc Protective
connection with the Lawsuit. I agree to be hound by the provis
Order.
Court with respect to the
3 1 consent to the exercise of jurisdiction over me by the
Protect we Order.
l of record for al i parties in
4. 1 agree that copies of this undertaking will he sent to counse
the Lawsuit.
S1GNVFt. ‘RE.
DATED:
By
TAB 8
OF THE RECORD
Filed
2/23/2015 11:18:35AM
Esther Degollado
District Clerk
Webb District
2014CVF001162 Dl
NO. 2OI4CVFOOI 162-Di
RAUL RODRIGUEZ §AND NOEMI IN THE DISTRICT COURT
RODRIGUEZ, §
Plaintiffs §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND FELIPE §
FARIAS, §
Defendants § 49TH JUDICIAL DISTRICT
DEFENDANTS’ RESPONSE AND OBJECTIONS TO
PLAINTIFFS’ MOTION FOR PROTECTIVE ORDER AND
MOTION FOR ENTRY OF STATE FARM’S PROPOSED PROTECTIVE ORDER
TO THE HONORABLE JUDGE OF THIS COURT:
Defendants State Farm Lloyds (“State Farm”), Felipe Farias (collectively, “Defendants”)
file their Response and Objections to Plaintiffs’ Motion for Protective Order and Motion for
Entry of State Farm’s Proposed Protective Order. In support thereof, and pursuant to the Texas
Rules of Civil Procedure, Defendants show as follows:
I.
INTRODUCTION
I. The case presently before the Court is a suit arising out of a wind/hail insurance
claim Plaintiffs filed with State Farm. Defendants object to the entry of Plaintiffs’ Proposed
Protective Order because it is inadequate. By insisting that State Farm produce or disclose
Confidential Information without an appropriate and standard agreement that such information is
confidential and should be handled accordingly, Plaintiffs have put State Farm in an impossible
position: State Farm can either disclose its protected materials without the basic protections that
they warrant, and risk losing the confidential or trade secret status of the materials, or State Farm
must withhold relevant discovery and risk sanctions from the Court.
2. The three-part argument Plaintiffs offer in support of their proposed order is
conclusory, and ultimately the Protective Order proposed by Plaintiffs does not meet the
criterions Plaintiffs proffered.
3. First, Plaintiffs argue that “Plaintiffs’ Proposed Protective Order provides all
parties, including State Farm Lloyds, adequate protection from disclosure of trade secret and
proprietary information.” (See Plaintiffs’ Motion, at ¶ l.A.) However, Plaintiffs’ Proposed
Protective Order is deficient in its protections of Confidential Information, while State Farm’s
Proposed Protective Order provides more complete protections, particularly with regard to
electronically stored information (“ESI”), and better overall procedures. Specifically, Plaintiffs’
Proposed Protective Order does not provide adequate procedures because:
I. It does not contain terms related to the designation and handling of electronically
stored information (“ES!”) that is confidential, proprietary, or trade secret.
ii. It fails to recognize all persons whom will ordinarily handle Confidential
Information during the course of this litigation.
iii. It overlooks important procedures regarding the handling of Confidential
Information and the duties of the parties that clearly should be preserved.
4. Second, Plaintiffs argue that “Plaintiffs’ Proposed Protective Order is consistent
with protective orders previously entered and used for substantially similar litigation involving
Plaintiffs’ counsel and State Farm.” (See Plaintiffs’ Motion, at ¶ LB.) However, Plaintiffs fail
to advise the court that State Farm has consistently objected to the sharing provisions put
forward by Plaintiffs, and the lack of safeguards for their Confidential Information
following the resolution of each matter.
5. Third, Plaintiffs argue that “Plaintiffs’ Proposed Protective Order contains a
‘Shared Discovery’ provision which will provide for more efficient discovery.” (See Plaintiffs’
Motion, at ¶ I .C.) However, the wide-spread sharing of Confidential information greatly
2
increases the risk that such information will be improperly disclosed, dilutes the Court’s ability
to monitor and enforce the protections of a protective order, and poses an unreasonable risk to
State Farm’s property rights. State Farm is entitled to a confidentiality order that will reasonably
limit the dissemination of its confidential information.
6. With few exceptions, State Farm’s Proposed Protective Order (see Exhibit A)
includes the terms proposed by Plaintiffs but also adds much needed procedures that will ensure
all forms of State Farm’s Confidential Information are protected, regardless of the mode of
production, without any adverse impact to the Plaintiffs.’ For these reasons, Defendants
respectfully request this Court to deny Plaintiffs’ Motion for Entry of a Protective Order and
move the Court to enter State Farm’s Proposed Protective Order in this case.
II.
ARGUMENT & AUTHORITIES
7. Texas law encourages courts to grant protective orders to “protect [a] movant
from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal,
constitutional, or property rights.” Tex. R. Civ. P. § 192.6(b). Under the Texas discovery rules,
privileged information is not discoverable. See Tex. R. Civ. P. 192.3(a) (defining general scope
of discovery as “any matter that is not privileged and is relevant to the subject matter of the
pending action ....“) (emphasis added). Before a court can permit discovery of any confidential,
trade secret, or proprietary information, a plaintiff must first establish the threshold requirements
of relevance and a particularized need to discover the information and documents. In re
C’ontinenlal Gen’l Tire, 979 S.W.2d 609, 610-11 (Tex. 1998); In re Union PacUic, 249 S.W.3d
589, 592 (Tex. 2009) (a plaintiff must demonstrate the information sought is “material and
See Exhibit B attached hereto for a paragraph-by-paragraph comparison of Plaintiffs’ Proposed
Protective Order and State Farm’s Proposed Protective Order.
3
necessary” to presentation of the case in which it is sought). This is a case-specific inquiry. See
In re Allstate County Mitt. Ins. Co. 227 S.W.3d 667, 668 (Tex. 2007) (granting mandamus in
case involving overbroad requests for insurer personnel files and emphasizing that trial courts
“must make an effort to impose reasonable discovery limits”); In re CSX Corp., 124 S.W.3d 149,
152 (Tex. 2003) (holding party requesting discovery has burden of demonstrating that the
discovery is “tailored to include only matters relevant to the case”). Once the necessary
thresholds are established, a trial court’s duty is to protect confidential and trade secret
documents through an appropriate protective order. Garcia v. Peeples, 734 S.W.2d 343 (Tex.
1987).
8. The Texas Supreme Court has explicitly recognized that confidential information
can and should be the subject of an appropriately tailored protective order. See In re George, 28
S.W.3d 511, 514 (Tex. 2000) (“We recognize that the possibility exists that the disqualified
attorneys could conceivably have revealed confidential information in discovery,
correspondence, or other documents. If this has happened, the former client can protect
against tills disclosure ... by seeking a protective order under Texas Rule of Civil Procedure
192.6.”) (emphasis added). Other courts from around the state and nation also routinely provide
protection over the exchange of confidential materials during discovery. (See, e.g., Exhibit C,
Southern District of Texas form Protective Order, at p. 1 (protecting confidential information);
see also Exhibit D, Western District of Texas form Confidentiality and Protective Order, at pp.
2-3, protecting “information that the party in good faith believes in fact is confidential.”) As
discussed below, the information Plaintiffs seek from State Farm is confidential, proprietary, and
deserving of protection.
4
9. In addition, Texas law defines a trade secret as “any formula, pattern, device or
compilation of information which is used in one’s business, and which gives him an opportunity
to obtain an advantage over competitors who do not know or use it.” Hyde Corp. v. Hufjines,
158 Tex. 566, 314 S.W.2d 763, 776 (1958); accord In re Bass, 113 S.W.3d 735, 739 (Tex. 2003)
(orig. proceeding); see also Tex. Civ. Rem. & Prac. Code § 134A.002(6) (the recently enacted
Texas Uniform Trade Secrets Act defines a trade secret as any “information, including a formula,
pattern, compilation, program, device, method, technique, process, financial data, or list of actual
or potential customers or suppliers that (A) derives independent economic value, actual or
potential, from not being generally known to, and tiot being readily ascertainable by proper
means by, other persons who can obtain economic value from its disclosure or use; and (B) is the
subject of efforts that are reasonable under the circumstances to maintain its secrecy.”). As
discussed below, the information Plaintiffs seek from State Farm is not only confidential and
proprietary, but also contains trade secret information, deserving of protection.
10. The Texas Supreme Court described an “appropriate” protective order as one that
“limits access to the information to the parties in [the instant] litigation, their lawyers,
consultants, investigators, experts and other necessary persons employed by counsel to assist in
the preparation of this case.” In re Continental Gen ‘1 Tire, 979 S.W.2d at 613, n. 3 (emphasis
added); see also Zappe v. Medironic USA, Inc., No. C-08-369, 2009 U.S. Dist. LEXIS 23727(S.D. Tex. March 23, 2009) (noting the Texas Supreme Court’s move away from Garcia and
entering a protective order that restricted the sharing of information). Moreover, an
“appropriate” protective order requires return of the documents at the end of the case and
requires that each person given access to the trade secret information agree in writing to maintain
the information as confidential. In re Continental Gen ‘1 Tire, 979 S.W.2d at 613, n.3; see also In
5
re Remington Arms Co., 952 F.2d 1029, 1033 (8th Cir. 1991) (describing ‘appropriate”
protective order for trade secrets as one that limits use to the case at hand, limits persons to
whom trade secrets are disclosed and forbids reproduction of documents containing trade secret
information).
A. State Farm’s business information warrants confidential treatment.
11. State Farm has produced non-privileged claim-specific documents from its
Enterprise Claim System and the relevant insurance policy. State Farm disagrees that the scope
of all of Plaintiffs’ discovery requests are proper; however, State Farm is willing to produce
additional responsive documents that are potentially relevant to the issues in this litigation,
including policies, procedures, and training materials applicable to the adjustment of claims
arising out of the weather event at issue a proper protective order is entered in this case.
12. State Farm’s Confidential Information warrants trade secret status because (1) the
information is not known outside of State Farm or by others who compete with State Farm (i.e.,
other insurance carriers); (2) State Farm takes reasonable efforts to guard the secrecy of this
information (such as not sharing it with others absent an appropriate confidentiality agreement or
protective order, as is the case here); (3) this information is valuable to State Farm because it is
vital to the efficient analysis and processing of claims; (4) State Farm has invested significant
amounts of time, human resources, and money developing and implementing the systems
described above; and (5) the information described above would not easily be acquired or
duplicated by others. In re Bass, 113 S.W.3d at 737.
13. Indeed, under Texas law, a trade secret is at risk of losing its trade secret status if
its owners are not diligent in their efforts to protect its secrecy or otherwise treat it as
confidential. Id. (factors relevant to determining whether a trade secret exists include, among
6
other things, the extent of the measures taken by the party to guard the secrecy of the
information). In recognition of an owner’s responsibility to protect its trade secrets, and in
addition to Tex. R. Civ. P. § 192.6(b) discussed above, the Texas Rules of Evidence specifically
provide that a litigant may claim a privilege to refuse to disclose a trade secret so long as the
allowance of the privilege will not tend to conceal fraud or otherwise work injustice. See Tex. R.
Evid. 507. “When disclosure is directed, the judge shall take such protective measure as the
interests of the holder of the privilege and of the parties and the furtherance ofjustice may
require.” Id. (emphasis added); see also Tex. Civ. Rem. & Prac. Code § 134A.006 (the recently
enacted Texas Uniform Trade Secrets Act providing that “[tJhere is a presumption in favor of
granting protective orders to preserve the secrecy of trade secrets. Protective orders may
include provisions limiting access to confidential information to only the attorneys and their
experts, holding in camera hearings, sealing the records of the action, and ordering any person
involved in the litigation not to disclose an alleged trade secret without prior court approval.”)
(emphasis added).
14. To be clear, State Farm is not refusing to share its responsive confidential and
proprietary information outright; it is merely requesting an appropriate confidentiality order that
would allow it to do so without sacrificing the protections Texas law plainly affords. With few
2 State Farm’s Proposed Protective Order (see Exhibit A) includes the terms proposed
exceptions,
by Plaintiffs and simply adds much needed procedures that will ensure the protection of all forms
of State Farm’s Confidential Information regardless of the mode of production, without any
adverse impact to the plaintiffs. Thus, there is no principled basis for Plaintiffs’ opposition.
2
For the reasons stated in Section II. E. i,fta, State Farm does not agree to the broad sharing provisions
included in Plaintiffs’ Proposed Protective Order.
7
B. State Farm’s Proposed Protective Order addresses the designation and handling of
ESI that contains Confidential Information.
1 5. Plaintiffs have requested that State Farm produce ESI responsive to the discovery
requests, but Plaintiffs’ Proposed Protective Order does not fully protect the confidential ES!
State Farm will produce. Critically, Plaintiffs’ Proposed Protective Order is inadequate with
respect to the handling of ESI for five reasons.
16. First, the general protections for Confidential Information should be met by
limiting the unnecessary duplication of Confidential Information. ESI can be duplicated and
circulated with ease, which increases the risk that confidential, propriety, or trade secret
information will be disclosed in violation of the protective order. The last sentence of
paragraph I of State Farm’s Proposed Protective Order strengthens the general protections
afforded by the order by expressly limiting unnecessary duplication and limiting the receiving
party’s right to use other parties’ Confidential lnlbrmation to the current litigation. This is ever
more important in light of the increased volumes of ES1 in litigation. As such, the provisions are
in line with the protections contemplated by Rule 5O7 and should be adopted by the Court.
1 7. Second, Plaintiffs’ definition of Confidential Information does not specifically
include ES!. ESI is distinct from hard copy documents or other information. For this reason, the
Court should find that Plaintiffs’ Proposed Protective Order, which fails to account for the need
to protect ESI, is deficient, and instead adopt paragraph 2 of State Farm’s Proposed Protective
Order.
1 8. Third, the protective legend that Plaintiffs propose the parties append to the file
name (see Exhibit E, at ¶ 6) is so lengthy that it is unmanageable, and there is a risk the Windows
operating system will cut it short. The Windows operating system has a 255 character limit for
See paragraph 8 supra.
8
the combined file name and file path information. When Plaintiffs’ proposed legend in
subparagraph 6.c is combined with standard path, file name, and Bates identifier information, it
is very likely the combined information will exceed 255 characters. State Farm has proposed
that the protective legend stop after the cause number. State Farm’s proposed protective legend
will allow the parties to accurately identify electronic files and the matter in which the file was
produced, and is not likely to exceed the Windows 255 character limit. Consequently, State
Farm requests the Court reject Plaintiffs’ proposed paragraph 6 and accept the paragraph 6
proposed by State Farm.
19. Fourth, Plaintiffs’ Proposed Protective Order fails to require the destruction of
confidential ESI if it is improperly disclosed to a non-Qua] ified Person. (See Exhibit E, at ¶ 7.)
Since it would be impractical to return copies of confidential ESI once it is placed on new
, it is essential that all non-authorized copies of confidential ESI be destroyed in order to
4
media
ensure the confidentiality of the information contained on the unauthorized media. Paragraph 8
of State Farm’s Proposed Protective Order specifically requires a party that improperly discloses
Confidential Information to a non-Qualified Person to request the destruction of any such ESI.
This procedure enhances the safeguards for Confidential Information, without impacting the
rights of the parties to use such information during the course of this litigation. This type of
language is typical and non-controversial in other cases. For that reason, the Court should adopt
the tenhis of paragraph 8 of State Farm’s Proposed Protective Order that provide for the
destruction of ESI that contains Confidential Information.
20. Fifth, Plaintiffs’ Proposed Protective Order is impractical because it omits clear
procedures for the destruction or return of State Farm’s Confidential Information after the
in order to return confidential ESI, the receiving party would have to turn over the actual media, such as
the computer hard drive, that contains the copy of the confidential ESI.
9
resolution of the matter. Plaintiffs’ proposal effectively grants an unlimited use license to each
plaintiff or their counsel to retain and use all State Farm Confidential Information received for an
unlimited period of time. Such unlimited use is clearly beyond the scope of use necessary for the
fair adjudication of this matter and should not be allowed. See generally In re
BrIdgestone/Firestone, Inc., 106 S.W.3d 730 (Tex. 2003, orig. proceeding). The causes of action
asserted in this litigation require proof of State Farm’s alleged misconduct with regard to these
particular plaintiffs only and return of confidential materials at the end of this litigation will not
hamper Plaintiffs’ ability to examine witnesses or prove the elements of their case. Paragraph 20
in State Farm’s Proposed Protective Order reasonably provides that within forty-five days of the
iinai adjudication of the matter, all the confidentia], proprietary and trade secret material
produced or disclosed by State Farm in the course of this litigation must be returned or
destroyed. Because Plaintiffs’ Proposed Protective Order is not reasonably tailored to protect
State Farm’s Confidential Information after this litigation concludes, the Court should deny
Plaintiffs’ request for entry of Plaintiffs’ Proposed Protective Order and adopt paragraph 20 from
State Farm’s Proposed Protective Order.
C. The confidentiality order should address all persons to whom it will be provided.
21. A protective order is easily vitiated without specific procedures to enforce the
handling of protected information. The protective order entered by this Court should recognize
all persons who reasonably will be required to handle Confidential Information in this matter,
and designate only those persons as “Qualified Persons.” Plaintiffs’ definition of “Qualified
Person” is both unreasonably under-inclusive and improperly over-inclusive in light of the facts
of this case.
22. Plaintiffs’ definition of Qualified Persons is under-inclusive because it omits
counsel’s staff; outside service-providers and consultants providing services related to document
10
and ESI processing, hosting, review, and production; the Court; other court officials (including
court reporters); and the trier of fact pursuant to a sealing order. Persons in all of these
categories naturally will receive Confidential Information during the course of this litigation.
Thus, it is unreasonably under-inclusive to omit them from the protective order from the outset.
For these reasons, the Court should accept paragraph 3 in State Farm’s Proposed Protective
Order.
23. For the reasons stated in section E. below, Plaintiffs’ inclusion of parties to other
litigation (including State Farm’s competitors) within the definition of Qualified Persons is
improperly over-inclusive and should be rejected by the Court.
B. The Protective Order should clearly preserve the general rights and duties of the
parties.
24. State Farm’s Proposed Protective Order includes additional terms that provide
clear and consistent procedures regarding the handling of Confidential Information throughout
the litigation.
25. First, State Farm’s Proposed Protective Order adds paragraph 9 which
acknowledges that information in its possession, custody, or control may be the confidential
information of non-parties. State Farm’s proposed paragraph 9 acknowledges the general duties
that a party may owe to a non-party to protect the confidentiality of the non-party’s Confidential
Information provided. Such practical duties do not impinge on the interest ofjustice in this case.
Therefore, State Farm requests that the Court adopt paragraph 9 of State Farm’s Proposed
Protective Order.
26. Second, State Farm modified paragraph 10 to ensure that all Qualified Persons
may remain during testimony regarding Confidential Information provided they are otherwise
entitled to attend the deposition. Plaintiffs’ proposed paragraph 10 impractically limits the
11
persons that can attend a deposition during testimony regarding Confidential Information. Under
Plaintiffs’ proposal, all persons other than “the court reporter, the witness being deposed, counsel
for the parties and any expert entitled to attend,” must leave the room, even if they are a
Qualified Person who is otherwise entitled to attend the deposition. For example, it is common
practice to have a party representative attend depositions and party representatives are Qualified
Persons under the terms of Plaintiffs’ Proposed Protective Order. There is no reason to exclude
Qualified Persons from a deposition if they are otherwise entitled to attend the deposition. The
simplified procedure provided in State Farm’s proposal clarifies the standard procedures and
rights related to depositions. For these reasons, the Court should adopt the terms of paragraph 10
of State Farm’s Proposed Protective Order.
27. Third, State Farm proposed paragraph 13 expands upon paragraph 9 of Plaintiffs’
Proposed Protective Order and provides that a receiving party must have a good-faith basis to
request that Confidential Information be re-designated. This requirement is clearly contemplated
under the rules and therefore State Farm requests that the Court adopt its paragraph 13.
28. Fourth, State Farm amended paragraph 14 of Plaintiffs’ Proposed Protective
Order (c.f Exhibit A, at ¶ 15) regarding the procedure for the Court to hear objections to any
designation. These amended provisions extend the deadline to thirty days so that it is consistent
with other time requirements in the protective order. The paragraph otherwise parallels the
Plaintiffs’ proposal, and State Farm requests that the Court adopt its paragraph 15 in order to
simplif’ the administration of this case.
29. None of State Farm’s proposed additions and changes impinge upon the rights of
Plaintiffs. Rather, they help protect the rights of all parties and streamline procedures in this
12
case. Because Plaintiffs have no practical or legal basis to object to these terms, Plaintiffs’
objections merely obstruct the unbiased adjudication of this matter.
E. Plaintiffs’ Proposed Protective Order provides for improper sharing of confidential,
proprietary, or trade secret information outside of this litigation.
30. State Farm will be prejudiced, and its property interests in its Confidential
Information are likely to be compromised, if Plaintiffs’ counsel is allowed to share Slate Farm’s
Confidential Information outside of this litigation. The wording in paragraph 1 of Plaintiffs’
Proposed Protective Order allows Plaintiffs’ counsel to share State Farm’s confidential and
proprietary information directly with any party, attorney, or expert witness “arising out of
hal/storms and/or windsiorms in Texas with a date of loss in 2012, andfor no other purpose.”
The Protective Order specifically states:
“Related Litigation” means a first-party lawsuit in Texas by an insured against
State Farm Lloyds and its adjusters or adjusting companies that produced the
Confidential Information for damages to insured property arising out of
hailsiorms andJor windstorms in Texas with a date of loss in 2012.
Confidential Information shall not be disclosed to any person except in
accordance with the terms of this Order.
(See Exhibit F, at ¶ 1.) The wide-spread sharing of Confidential Information greatly increases
the risk that such information will be improperly disclosed, dilutes the Court’s ability to monitor
and enforce the protections of a protective order, and poses an unreasonable risk to State Farm’s
property rights. State Farm is entitled to a protective order that will reasonably limit the
dissemination of its confidential information.
31. Plaintiffs cite In re Stale Farm Lloyds, No. 09-03-311 -CV, 2003 Tex. App.
LEXIS 8115 at *l..2 (Tex. App.—Beaumont Sept. 18, 2003, orig. proceeding), to justify their
proposed provisions for sharing discovery. I1owever, in that case the Court of Appeals merely
made a conclusory holding, without providing any substantive analysis that shared discovery was
13
permissible in that case. That holding was never reviewed by Texas Supreme Court. When a
similar issue was brought before the Texas Supreme Court in, In re Fire Insurance Exchange,
No. 09-04-301-CV, 2004 Tex. App. LEXIS 8494 at *2 (Tex. App.—Beaumont Sept. 23, 2004,
orig. proceeding), the plaintiffs’ counsel — the same as Plaintiffs’ counsel as in this case —
withdrew the protective order and made the issue moot. Consequently, there is no support in
Texas law for the overbroad sharing provisions that Plaintiffs seek in this case.
32. Plaintiffs’ reliance on the shared discovery doctrine is also misplaced because the
doctrine arose out of a products liability case, Garcia v. Peeples, and relates to the unique nature
of such litigation, the nature of the discovery documents requested, and the public health and
safety concerns implicated by the defendant’s discovery objections in that case. 734 S.W.2d
343; see also, Steenbergen v. Ford Motor Co., 814 S.W.2d 755 (Tex. App.—Dallas 1991, writ
denied) (automobile products liability case); American Honda Motor Co. v. Dibrell, 736 S,W.2d
257 (Tex. App.—Austin 1987, no writ) (all-terrain vehicle product liability case). The public
health concerns at play in a product liability matter, where every potential consumer is equally
impacted by the same design specification and manufacture process, are not present in the
individual insurance claims that arose out of June 14, 2013, weather event. Moreover, each State
Farm insurance policy at issue will be unique to the claimants and each insurance claim was
independently adjusted. In fact, in most cases, the commonality between plaintiffs will not reach
beyond the fact that they each purchased a policy from State Farm and allege they suffered
property damage in the weather events. Plaintiffs cannot meet the burden to establish that a
public benefit accrues from sharing discovery related to the specific insurance claims that have
arisen regarding property damage from 2013.
14
33. Crucially, Garcia was decided nearly thirty years ago. Since that time, the ability
to transmit vast quantities of information electronically has increased exponentially. Indeed, a
single violation of the Protective Order could send State Farm’s trade secrets around the country
in a matter of minutes. Once that happens, retrieval would be impossible. The ease with which
information can now he spread substantially undermines any argument that trade secrets will be
protected under a protective order that allows sharing. See, e.g., Gil v. Ford Motor Co., Civ.
Action No. 1:06CV122, 2007 U.S. Dist. LEXIS 65269 (N.D.W. Va. 2007) (questioning
plaintiff’s assertion that sharing provisions in a protective order would adequately protect trade
secrets).
34. Garcia v. Peeples was also decided more than a decade before the Texas Supreme
Court directly addressed the scope and application of the trade-secret privilege under Texas Rule
of Evidence 507. See in re Continental Gen ‘1 Tire, Inc., 979 S.W.2d 609 (Tex. 1998).
Underlying the holding and reasoning of In re Continental is the Court’s recognition that “trade
secrets are an important property interest, worthy of protection.” Id. at 612. It is axiomatic that
“once a trade secret is made public all ownership is lost.” Computer Assocs., In! ‘1, Inc. v. A/tai,
Inc., 918 S.W.2d 453, 457 (Tex. 1996). This is true regardless of whether the production is
requested in a case involving two business competitors or involving non-competitors. In re
Continental Gen’l Tire, 979 S.W.2d at 613.
35. While extolling the general values of the civil litigation system, Plaintiffs fail to
explain how a sharing provision in the protective order is necessary for discovery in their case.
Nor can they explain it because giving State Farm’s trade secrets to other litigants has nothing to
do with the prosecution of the case at hand. In contrast, the risk that State Farm’s trade secrets
15
will be improperly disclosed is drastically increased once sharing outside the confines of this
litigation has occurred.
36. The language of Plaintiffs’ proposed order condones the widespread distribution
of every confidential and proprietary document, confidential deposition transcript, or discovery
response produced in this case to all lawyers who file a lawsuit against State Farm on a wind/hail
claim in Texas with a date of loss of 2012 without regard to the causes of action and factual
allegations contained therein, the relationship to the present litigation, and without any obligation
to return or destroy the information afier a definite period of time. This allows Plaintiffs’
counsel to become a repository for such information for years to come, and will encourage
associations and collusion with other counsel bringing claims against State Farm. Even under
Garcia, the Plaintiffs’ Proposed Protective Order is deficient because it is not limited to
similarly-situated litigants.
37. State Farm’s concerns about any protective order that allows a plaintiff’s counsel
to become a repository are not unfounded. The litigation marketplace contains websites and
exchanges devoted to dissemination of confidential and proprietary information, with few
controls and no access to information about who has the trade secret information, or where it
may be used. Allowing use of confidential documents without limitation is problematic not just
because of the risk that Confidential Information will fall into the hands of State Farm’s
competitors, but because the documents applying to or used in the handling of the claim at issue
in this case may not be the same documents used or seen by adjusters in other cases; plaintiffs
are thus allowed to falsely impeach parties and witnesses in other cases.
38. The protective order State Farm has proposed does not deny Plaintiffs any
relevant Confidential Information that may be necessary for them to prove their case. But,
16
unlike Plaintiffs’ Proposed Protective Order, it also does not jeopardize the confidentiality of
those materials by permitting an essentially ungoverned distribution to an overly broad class of
persons into the indefinite future. Plaintiffs’ Proposed Protective Order is overly broad and
Plaintiffs have not presented sufficient justification for allowing a sharing provision.
39. For these reasons, the expansive sharing language in paragraphs I and 3 of
Plaintiffs’ Proposed Protective Order should be rejected by the Court.
III.
CONCLUSION
40. in light of the foregoing, Plaintiffs’ Motion for Entry of Protective Order should
be denied and State Farm’s Proposed Protective Order, attached as Exhibit A, should be entered
as a full confidentiality order in this case. Adoption of State Farm’s Proposed Protective Order
will allow State Farm to continue producing responsive material to Plaintiffs while mitigating
any risk that State Farm’s Confidential Information will be disclosed without sufficient
protection or otherwise lose its trade secret status.
WHEREFORE, PREMISES CONSIDERED, Defendants pray this Honorable Court deny
Plaintiffs’ Motion for Protective Order, enter State Farm’s Proposed Protective Order attached
hereto, and for any other and further relief, at law or in equity, to which they show themselves
justly entitled.
17
___
______________________ __
Respectfully submitted,
HUSEMAN & STEWART
615 N. Upper Broadway, Suite 2000
Corpus Christi, TX 78401-0781
(361) 883-3563; (361) 883-0210 (Fax)
VAN HE!AN
State Bar No. 1032350
TIFFANY DEBOLT
State Bar No. 24074118
Attorneys for Defendants State Farm Lloyds
And Felipe Farias
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing was thisday of February 2015, served on
the following via e-service:
VIA E-SERVICE
Mr. J. Steve Mostyn
The Mostyn Law Firm
3810 West Alabama Street
Houston, Texas 77027
TTWANY DEBOLT
the___
By
18
Filed
2/2312015 11:18:35AM
Esther Degollado
District Clerk
Webb District
2014CVF001162 Dl
NO. 2O14CVFOOI 162-DI
RAUL RODRIGUEZ AND NOEMI § IN THE DISTRICT COURT
RODRIGUEZ, §
Plaintiffs §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND FELIPE §
FARIAS, §
Defendants § 49TH JUDICIAL DISTRICT
PROTECTIVE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced or exchanged in this litigation, and that the following provisions,
limitations, and prohibitions are appropriate pursuant to and in conformity with the Texas Rules
of Civil Procedure. Therefore, it is hereby ORDERED that:
1. All Confidential Information produced or exchanged in the course of this
litigation shall be used solely for the purpose of the preparation and trial of this
litigation against State Farm Lloyds (including its employees) and Felipe Farias
(“Defendants”) or any third party adjusting firm (including its employees) that
adjusted this claim and for no other purpose. Confidential Information, or
extracts, summaries, or information derived from Confidential Information, shall
not be disclosed to any person except in accordance with the terms of this Order.
Confidential Information may only be copied or reproduced as reasonably
necessary for use solely in this litigation.
2. “Confidential Information,” as used herein, means any information of any type
that is designated as ‘Confidential” and/or “Trade Secret” by any of the
producing or receiving parties, whether it is: a document, electronically stored
I EBIT
information (“ES!”), or other material; information contained in a document, ES!,
or other material; information revealed during a deposition; information revealed
in an interrogatory answer or written responses to discovery; information revealed
during a meet and confer, or otherwise in connection with formal or informal
discovery.
3. The disclosure of Confidential Information is restricted to Qualified Persons.
“Qualified Persons,” as used herein, means: the parties to this pending litigation
arising out of a weather event on or about June 14, 2013, in Webb County, Texas;
their respective counsel; counsel’s staff; expert witnesses; outside service-
providers and consultants providing services related to document and ES!
processing, hosting, review, and production; the Court; other court officials
(including court reporters); the trier of fact pursuant to a sealing order; and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any
other person may be designated as a Qualified Person by order of this Court, after
notice to all parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential
Information to a person who is not a Qualified Person on counsel for the
designating party, and consent shall not be unreasonably withheld. However,
until said requesting party receives written consent to further disclose the
Confidential Information, the further disclosure is hereby prohibited and shall not
be made absent further order of this Court. If the designating party grants its
consent, then the person granted consent shall become a Qualified Person under
this Order.
2
5. Counsel for each party shall provide a copy of this Order to any person—other
than the Court, court officials, or the trier of fact—who will receive Confidential
Information in connection with this litigation, and shall advise such person of the
scope and effect of the provisions of this Order and the possibility of punishment
by contempt for violation thereof. Further, before disclosing Confidential
Information to any person other than the Court, court officials, or the trier of
fact, counsel for the party disclosing the information shall obtain the written
acknowledgment of that person binding him or her to the terms of this Order. The
written acknowledgment shall be in the form of Exhibit A attached hereto.
Counsel for the disclosing party shall retain the original written acknowledgment,
and furnish a copy of the signed written acknowledgment to the designating
party’s counsel within ten (10) business days.
6. Information shall be designated as Confidential Information within the meaning
of this Protective Order by following the protocol below that corresponds to the
format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf.
Agree./Prot. Order,” but not so as to obscure the content of the document.
b. For static image productions, by marking the first Bates-stamped page of
the image and each subsequent Bates-stamped page thereof containing
3
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf.
Agree./Prot. Order,” but not so as to obscure the content of the image.
c. For native file format productions, by prominently labeling the delivery
media for ES! designated as Confidential Information as follows:
“Confidential & Proprietary/Produced Pursuant to a Conf. Agree/Prot.
Order” or “Confidential Proprietary & Trade Secret/Produced Pursuant to
a Conf. Agree./Prot. Order.” In addition, at the election of the producing
party, the electronic file may have appended to the file’s name
(immediately following its Bates identifier) the following protective
legend:
“CONFI DENTIAL-SU BJ TO PROTECTI yE ORDER IN CAU SE [insert
When any file so designated is converted to a hard-copy document or
static image for any purpose, the document or image shall bear on each
page a protective legend as described in 6.a. and 6.b. above. If a native
file containing Confidential Information is used during a deposition, meet
and confer, trial, or is otherwise disclosed post-production, the party
introducing, referencing, or submitting the native file must append to the
file’s name (immediately following its Bates identifier) the protective
legend:
“CONFIDENTIAL-SUBJ TO IROTECTI VE ORDER IN CAUSE insert n]” if
such legend does not already appear in the file name. Any party using a
native file containing Confidential Information in a deposition, hearing, or
4
at trial must indicate the designation on the record so that it is reflected in
the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may
place on any hard-copy documents that are subject to this Protective Order
watermarks or seals to indicate the document is subject to a Protective
Order and is produced under the specific cause number.
7. Information previously produced during this litigation and not already marked as
Confidential Information shall be retroactively designated within thirty (30) days
of entry of this Order by providing written notice to the receiving parties of the
Bates identifier or other identii’ing characteristics for the Confidential
Information.
a. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, and/or (ii) with respect to EST, take such reasonable
steps as will reliably identifij the item(s) as having been designated as
Confidential Information.
b. Information that is unintentionally or inadvertently produced without
being designated as Confidential Information may be retroactively
5
designated by the producing party in the manner describe in paragraph 7.a.
above. If a retroactive designation is provided to the receiving party in
accordance with Texas Rule of Civil Procedure 193.3(d) the receiving
party must (i) make no further disclosure of such designated information
except as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated information of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No party shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
8. If Confidential Information is inadvertently disclosed to a person who is not a
Qualified Person, the disclosing party shall immediately upon discovery of the
inadvertent disclosure, send a written demand to the non-Qualified Person
demanding the immediate return and/or destruction of the inadvertently disclosed
Confidential Information, aLl copies made, and all notes that reproduce, copy, or
otherwise contain information derived from Confidential Information. Further the
disclosing party shall send written notice to the designating party’s counsel
providing:
a. The names and addresses of the entity or individuaJ to whom the
Confidential Information was inadvertently disclosed.
b. The date of the disclosure.
c. A copy of the notice and demand sent to the entity or individuaL that
6
inadvertently received the Confidential Information.
9. To the extent that the parties produce information received from non-parties that
the non-parties have designated as ‘confidential” such information shall be treated
as Confidential Information in accordance with the terms of this Protective Order.
a. With respect to any document, ESI, or other material that is produced or
disclosed by a non-party, any party may designate such information as
Confidential Information within thirty (30) days of actual knowledge of
the production or disclosure, or such other time as may be agreed upon by
the parties.
b. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, and/or (ii) with respect to ESI, take such reasonable
steps as will reliably identifS’ the item(s) as having been designated as
Confidential Information.
c. Upon notice of designation pursuant to this Paragraph, the parties also
shall: (i) make no further disclosure of such designated information except
as allowed under this Order; (ii) take reasonable steps to notif any
persons who were provided copies of such designated information of the
7
terms of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No person shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
d. The parties shall serve a copy of this Order simultaneously with any
discovery request made to a non-party.
10. Deposition testimony is Confidential Information under the terms of this Order
only if counsel for a party advises the court reporter and opposing counsel of that
designation at the deposition, or by written designation to all parties and the court
reporter within thirty (30) business days after receiving the deposition transcript.
All deposition transcripts shall be considered Confidential Information until thirty
(30) days following the receipt of the deposition transcript. In the event testimony
is designated as Confidential Information, the court reporter shall note the
designation on the record, shall separately transcribe those portions of the
testimony, and shall mark the face of such portion of the transcript as
“Confidential Information.” The parties may use Confidential Information during
any deposition, provided:
a. The witness is apprised of the terms of this Order and executes the
acknowledgment attached hereto as Exhibit A.
b. The room is first cleared of all persons who are not Qualified Persons.
Il. In the case of interrogatory answers, responses to request for production, and
responses to requests for admissions, the designation of Confidential Information
8
will be made by means of a statement in the answers or responses specifying that
the answers or responses or specific parts thereof are designated as Confidential
Information. A producing party shall place the following legend on each page of
interrogatory answers or responses to requests for admission: “Contains
Confidential Information.”
12. Confidential Information disclosed during a meet and confer or otherwise
exchanged in informal discovery, shall be protected pursuant to this Order if
counsel for the disclosing party advises the receiving party the information is
Confidential Information. If the Confidential Information disclosed during a meet
and confer or otherwise exchanged in informal discovery is in the form of hard
copy documents, static images, or native files, that information shall be
designated as Confidential Information pursuant to paragraphs 6 a., b., and/or c.
above, depending on the format of the materials introduced.
13. If a receiving party makes a good-faith determination that any materials
designated Confidential Information are not in fact “confidential” or “trade
secret,” the receiving party may request that a designating party rescind the
designation. Such requests shall not be rejected absent a good-faith determination
by the designating party that the Confidential Information is entitled to protection.
14. After making a good-faith effort to resolve any disputes regarding whether any
designated materials constitute Confidential Information, counsel of the party or
parties receiving the Confidential Information may challenge such designation of
all or any portion thereof by providing written notice of the challenge to the
designating party’s counsel. The designating party shall have thirty (30) days
9
from the date of receipt of a written challenge to file a motion for specific
protection with regard to any Confidential Information in dispute. If the party or
parties producing the Confidential Information does not timely file a motion for
specific protection, then the Confidential Information in dispute shall no longer be
subject to confidential treatment as provided in this Order.
15. If a timely motion for specific protection is filed, any disputed Confidential
Information will remain subject to this Order until a contrary determination is
made by the Court. At any hearing the designating party shall have the burden to
establish that party’s right to protection as if this Order did not exist. A party’s
failure to challenge the Confidential Information designation of any documents,
ESI, information, or testimony does not constitute an admission that the
document, ESI, information or testimony is, in fact, sensitive, confidential, or
proprietary. No party waives its right to contend at trial or hearing that such
document, ESI, information or testimony is not sensitive, confidential, privileged
or proprietary, provided the party provides notice of intention to do so at least
twenty (20) days before such trial or hearing.
16. Any papers tiled with the Court in this action that make reference to Confidential
Information, or contain extracts, summaries, or information derived therefrom,
shall be considered Confidential Information and shall be governed by the terms
of this Order. These papers shall be filed under seal and shall remain sealed with
the District Clerk’s Office so long as the materials retain their status as
Confidential Information.
17. Pursuant to the agreement of the parties no disclosure, production, or exchange of
10
information in this case shall constitute a waiver of any applicable attorney-client
privilege or of any applicable work product protection in this or any other federal
or state proceeding. This Protective Order applies to any information disclosed,
exchanged, produced, or discussed — whether intentionally or inadvertently —
among the parties. their counsel and/or any agents (such as vendors and experts)
in the course of this litigation. Upon learning of a production of privileged or
work product protected information, the producing party shall within ten (10)
days give all counsel of record notice of the production pursuant to Texas Rule of
Civil Procedure 193.3(d). The receiving party must promptly return, sequester or
destroy the produced information and all copies and destroy any notes that
reproduce, copy, or otherwise disclose the substance of the privileged or work
product protected information.
18. Further, production pursuant to this Protective Order shall not be deemed a waiver
of
a. Any party’s right to object to any discovery requests on any ground.
b. Any party’s right to seek an order compelling discovery with respect to
any discovery request.
c. Any party’s use and review of its own Confidential Information in its sole
and complete discretion.
d. The status of any material as a trade secret.
19. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
20. Within forty-five (45) business days after the final resolution of this litigation, the
11
______
plaintiff(s) shall return or destroy Confidential Information they received during
this litigation. As to those materials that contain or reflect Confidential
Infonnation, but that constitute or reflect the plaintiff(s) counsel’s own work
product, counsel for the plaintiff(s) are entitled to retain such work product in
their files in accordance with the provisions of this Protective Order, so long as
the work product is clearly marked to reflect that it contains information subject
to this Protective Order. Plaintiff’s counsel is entitled to retain pleadings,
affidavits, motions, briefs, other papers filed with the Court, deposition
transcripts, and the trial record even if such materials contain Confidential
Information, so long as such materials are clearly marked to reflect that they
contain information subject to this Protective Order and are maintained in
accordance with the provisions of this Protective Order. Plaintiff’s counsel shall
certify in writing compliance with the provision of this paragraph after forty-five
(45) business days after the final resolution of this litigation.
This Order shall remain in etTect unless or until amended, altered, modified, or vacated
by the Court or by the written agreement of all parties to this action filed with the Court,
pursuant to the Texas Rules of Civil Procedure.
IT IS SO ORDERED this day of , 2014.
JUDGE PRESIDING
certif
20j
____________________________________
NO. 2OI4CVFOOI 162-DI
RALJL RODR[GUEZ AND NOEMI § IN THE DISTRICT COURT
RODRIGUEZ, §
Plaintiffs §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND FELIPE §
FARIAS, §
Defendants § 49TH JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
in order to be provided access to infonriation
designated as Confidential Information under the Protective Order entered in Cause No.
2O14CVFOOI 162-DI represents and agrees as follows:
I. I have been provided with a copy of the Protective Order entered by the Court in
the above matter. I have reviewed said copy and I am familiar with its terms.
2. With regard to any and all Confidential Information to which I am given access in
connection with the above matter, I agree to be bound by the provisions of the
Protective Order.
3. I consent to the exercise of jurisdiction over me by the Court with respect to the
Protective Order.
4. I agree that copies of this undertaking will be sent to counsel of record for all
parties in the above litigation.
DATED: SIGNATURE
EXHIBIT A
Filed
2/23/2015 11:18:35AM
Esther Degollado
Raul Rodriguez, eta!. v. State Farm Lloyds et aL (2014-CVF-001162-D1) District Clerk
Comparison of Protective Orders 2Q14CVFOO1 162 Di
Text without highlights is identical
Yellow highlighted text indicates differences
Or highlighted text denotes substantially similar text
Iiain(if(s’ l’ro(ectie Order Sitc hirni ‘s Proteclive Order
1. All Confidential Information produced or 1. All Confidential Information produced or
exchanged in the course of this litigation exchanged in the course of this litigation
shall be used solely for the purpose of the shall be used solely for the purpose of the
preparation and trial of this litigation and preparation and trial of this litigation against
other related litigation against State Farm State Farm Lloyds (including its employees)
Lloyds (including its employees) or any third and/or any third party adjusting firm
party adjusting firm (including its (including its employees) (“Defendants”)
employees) that adjusted claims arising out that adjusted this claim and for no other
[sic] hailstorms and/or windstorms in Texas purpose. Confidential Information, or
with a date of loss in 2012, and for no other extracts, summaries, or information derived
purpose. “Related Litigation” means a first- from Confidential Information, shall not be
party lawsuit in Texas by an insured against disclosed to any person except in accordance
State Farm Lloyds and its adjusters or with the terms of this Order. Confidential
adjusting companies that produced the Information may only be copied or
Confidential Information for damages to reproduced as reasonably necessary for use
insured property arising out of hailstorms solely in this litigation.
and/or windstorms in Texas with a date of
loss in 2012. Confidential Information shall
not be disclosed to any person except in
accordance with the terms of this Order.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ proposal is not narrowly tailored to limit the use of Confidential Information to the
present litigation with State Farm and does not limit the reproduction of such information. ESI can
be duplicated and circulated with ease, and unnecessary duplication increases the risk that
confidential, proprietary, or trade secret information will be disclosed in violation of a protective
order. The sharing of discovery in “related litigation” is not necessary in order to achieve fairness in
the adjudication of this Litigation, nor would it serve any public policy purpose. Moreover,
Plaintiffs’ definition of related litigation is not reasonably limited to a time and place.
Finally, Plaintiffs’ proposal is inadequate because it fails to limit
information extracted from the hard-copy documents or electro
sge I of 18
By
M
Raul Rodriguez, et aL v. State Farm Lloyds eta!. (2014-CVF-001162-D1)
Comparison of Protective Orders
State Farm’s Proposal is
Defendants have tailored the introductory paragraph to reflect that Confidential Information is being
disclosed for use in the case at bar, and for no other purpose. In addition, Defendants have added
language to reasonably protect any producing party from the unnecessary duplication of
Confidential Information.
“Confidential Information,” as used herein, Ll Information,” as used herein,
means any information of any type which is means any information of any type that is
designated as “Confidential” by any of the designated as “Confidential” and/or “Trade
supplying areceMng parties, including Secret” by any of the producing ci receiving
information received from non-parties, parties, whether it is: a document,
whether it is a document, information electronically stored information (“ESI”), or
contained in a document, information other material; information contained in a
revealed during a deposition, information document, ESI, or other material;
revealed in an interrogatory answer or information revealed during a deposition;
otherwise. At the sole discretion of the information revealed in an interrogatory
producing party, the producing party may answer or written responses to discovery;
place on any docunients that are subject to information revealed during a meet and
this Protective Order, bates numbers and/or a confer, or otherwise in connection with
legend to indicate the document is formal or informal discovery.
“Confidential,” subject to a Protective Order
and is produced under the specific cause
number; however, the producing party shall
not label designated documents with a
watermark.
Page 2 of 18
Raul Rodriguez, el aL v. Slate Farm Lloyds et a!. (2014-CVF-OO1 162-Di)
Comparison of Protective Orders
‘
Proposal is Not Acceptable:
Plaintiffs’ proposal does not specifically address the disclosure of trade secret information,
electronically stored information, or the disclosure of information in the context of a meet and
confer, all of which are relevant to this case. The second sentence of Plaintiffs’ paragraph two deals
with marking Confidential Information, which is the subject of paragraph 6, and should be addressed
in that paragraph.
Why State Farm’s Proposal is Better:
Under Texas law, all confidential, proprietary, and trade secret information is entitled to protection
from the court when such information is relevant to the litigation and must be disclosed in the course
of discovery. Specific protections for ESI and trade secret information are imperative to the
protection of State Farm’s property interests in its Confidential Information. State Farm’s paragraph
2 expands the definition of Confidential Information to include all types of information (i.e., ESI),
and all means through which such information is obtained.
Plaintiffs’ Protective Order Stale Fariii ‘s Protective Order
3. The disclosure of Confidential Information is 3. The disclosure of Confidential Information is
restricted to Qualified Persons. “Qualified restricted to Qualified Persons. “Qualified
Persons,” as used herein, means: the parties Persons,” as used herein, means: the parties
to pending litigation arising out of hailstorms to this pending litigation arising out of a
and/or windstorms in Texas [sic] a date of weather event on or about [date], in [County]
loss in 2012; their respective counsel; County, Texas; their respective counsel;
counsel’s staff; expert witnesses; outside counsel’s staff; expert witnesses; outside
service providers and consultants providing service-providers and consultants providing
services related to document and ES! services related to document and ESI
processing, hosting, review, and production; processing, hosting, review, and production;
the Court; other court officials (including the Court; other court officials (including
court reporters); the trier of fact pursuant to a court reporters); the trier of fact pursuant to a
sealing order; and any person so designated sealing order; and any person so designated
pursuant to paragraph 4 herein. If this Court pursuant to paragraph 4 herein. If this Court
so elects, any other person may be designated so elects, any other person may be
as a Qualified Person by order of this Court, designated as a Qualified Person by order of
Page 3 of 18
Raul Rodriguez, et al v. State Farm Lloyds et aL (201 4-CVF-001 162-Di)
Comparison of Protective Orders
after notice to all parties and a hearing. u Court, after notice to all parties and a
hearing.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ proposal provides the overbroad definition of the litigation as “hailstorms and/or
windstorms in Texas [with] a date of loss in 2013.” The Motion to Compel discovery filed with the
Motion for Protective Order, however, identifies a “hail storm and/or windstorms damage that
occurred on or about June 13, 2012.” More importantly, Plaintiffs proposed paragraph three puts
Defendants’ Confidential Information at risk because it allows information produced to be shared
with parties in unrelated litigation. In addition, the handling of a weather related claim in Dallas
County is not necessarily related to the handling of an unrelated claim in another county.
Why State Farm’s Proposal is Better:
State Farm’s proposed paragraph 3 simply identifies the weather event that precipitated Plaintiffs to
make an insurance claim regarding wind and hail damage.
4. The parties generally agree regarding the language of paragraph 4 of Plaintiffs’ Proposed
Protective Order, which corresponds with paragraph 4 of State Farm’s Proposed Protective
Order. Plaintiffs’ proposed language, however, contains a typographical error. The word
“or” in the first sentence should be changed to “on” so that the sentence reads:
Any party may serve a written request for authority to disclose
Confidential Information to a person who is not a Qualified Person
counsel for the designating party, and consent shall not be unreasonably
withheld.
Le I court for each party sh a 5. C I fbr each party shall provide a copy
copy of this Order to any person tO whom of this Order to any person—other than the
Confidential Information is to 1,# disclosed, Court, court officials, or the trier of fact—
including each party such counsel represents, who will receive Confidential Information in
and shall advise such person of the scope and connection with this litigation, and shall
effect of the confidentiality piovisions of this -- advise such person of the scope and effect of
Page4ofl8
Raul Rodriguez, et aL v. State Farm Lloyds et aL (201 4-CVF-001 1 62-Di)
Comparison of Protective Orders
l1aint ills’ Prnleclie Order State Farm’s I’rolective Order
--
----‘- -
- —- ---
- --,-- -- ---,-
-,, --- --- -
Order and the possibility of punishment by the pr*et of this Order and the
contempt for violation thereof. Further, possibility of punishment by contempt for
before disclosing Confidential Information to violation thereof. Further, before disclosing
any person, lead counsel for the party Confidential Information to any person other
disclosing the information shall obtain the than the Court, court officials, or the trier of
written acknowledgment of that person fact, counsel for the party disclosing the
binding him or her to the terms of this Order. information shall obtain the written
The written acknowledgment shall be in the acknowledgment of that person binding him
form of lExhibit Al attached hereto. Lead or her to the terms of this Order. The written
counsel for the disclosing party shall retain acknowledgment shall be in the form of
the original written acknowledgment, and Exhibit A attached hereto. Counsel for the
furnish a copy of the signed written disclosing party shall retain the original
acknowledgment to counsel fa the party written acknowledgment, and furnish a copy
designating the information as confidential of the signed written acknowledgment to the
within ten (10) business days. designating party’s counsel within ten (10)
business days.
Why Plaintiffs’ Proposal is Not Acceptable:
State Farm will be prejudiced, and its property interests in its Confidential Information are likely to
be compromised, if Plaintiffs’ counsel is allowed to share State Farm’s Confidential Information
with “each party such counsel represents” or others outside of this litigation. Moreover, Plaintiffs’
proposal does not exempt the Court, court officials, and the trier of fact from the requirement of the
paragraph.
Why State Farm’s Proposal is Better:
State Farm’s paragraph 5 exempts the Court, court officials, and the trier of fact from the
requirement that Qualified Persons execute an acknowledgement of the protective order (Exhibit A).
This is merely a practical addition to the paragraph. If similar language is not included, under the
terms of the protective order, the Court would be unnecessarily required to execute an
acknowledgement of its own order.
Page 5 of 18
Raul Rodriguez, et at v. State Farm Lloyds eta!. (2014-CVF-001162-D1)
Comparison of Protective Orders
be designated as
Confidential Information within the meaning Confidential Information within the meaning
of this Protective Order by following the of this Protective Order by following the
protocol below that corresponds to the format protocol below that corresponds to the
produced: format produced:
a. For hard-copy documents, by marking a. For hard-copy documents, by marking
the first Bates-stamped page of the the first Bates-stamped page of the
document and each subsequent Bates- document and each subsequent Bates-
stamped page thereof containing stamped page thereof containing
Confidential Information with the Confidential Information with the
following legend: “Confidential & following legend: “Confidential &
Proprietary/Produced Pursuant to a Proprietary/Produced Pursuant to a
Conf. Agree./Prot. Order” or Conf. Agree ./Prot. Order” or
“Confidential Proprietary & Trade “Confidential Proprietary & Trade
Secret/Produced Pursuant to a ConE Secret/Produced Pursuant to a ConE
Agree./Prot. Order,” but not so as to Agree./Prot. Order,” but not so as to
obscure the content of the document. obscure the content of the document.
b. For static image productions by marking b. For static image productions, by
the first Bates-stamped page of the marking the first Bates-stamped page of
document and each subsequent Bates- the image and each subsequent Bates-
stamped page thereof containing stamped page thereof containing
Confidential Information with the Confidential Information with the
following legend: “Confidential& following legend: “Confidential &
Proprietary/Produced Pursuant to a Proprietary/Produced Pursuant to a
Conf. Agree.fProt. Order” or Conf. Agree.fProt. Order” or
“Confidential Proprietary & Trade “Confidential Proprietary & Trade
Secret/Produced Pursuant to a ConE Secret/Produced Pursuant to a Conf.
Agree./Prot. Order,” but not so as to Agree./Prot. Order,” but not so as to
obscure the content of the image. obscure the content of the image.
c. For native format productions, by c. For native file format productions, by
prominently labeling the delivery media prominently labeling the delivery media
for ESI designated as Confidential for ESI designated as Confidential
Information as follows: “Confidential & Information as follows: “Confidential &
Proprietary/Produced Pursuant to a Proprietary/Produced_Pursuant to a
Page 6 of 18
Raul Rodriguez, el aL v. Slate Farm Lloyds el al. (2014-CVF-001162-D1)
Comparison of Protective Orders
Conf. Agree./ ..Order” or Conf Agree.fProt. Or&or
“Confidential Proprietary & Trade “Confidential Proprietary & Trade
Secret/Produced Pursuant to a Conf. Secret/Produced Pursuant to a Coni
AgreeiProt. Order.” In addition, at the Agree.fProt. Order.” In addition, at the
election of the producing party, the election of the producing party, the
electronic file may have appended to the electronic file may have appended to the
file’s name (immediately following its file’s name (immediately following its
Bates identifier) the following protective Bates identifier) the following protective
legend: legend:
“CONFIDENTIAL-SUBJ “CONFIDENTIAL
TO_PROTECTIVEjRDER_IN_ SUBJ_TO_PROTECTIVE_ORDER_IN
Cause No. 2014-C VF-001162-D1; _CAUSE_[insert #].“ When any file so
Noemi Rodriguez and Paul Rodriguez designated is converted to a hard-copy
vs. State Farm Lloyds and Felipe Farias document or static image for any
In the District Court of Webb County, purpose, the document or image shall
Texas, 49
th
Judicial District” [sic] When bear on each page a protective legend as
any file so designated is converted to a described in 6.a. and 6.b. above. If a
hard copy or static image for any native file containing Confidential
purpose, the document or image shall Information is used during a deposition,
bear on each page a protective legend as meet and confer, trial, or is otherwise
described in 6.a. and 6.b. above. If a disclosed post-production, the party
native file containing Confidential introducing, referencing, or submitting
Information is used during a deposition, the native file must append to the file’s
meet and confer, trial, or is otherwise name (immediately following its Bates
disclosed post-production, the party identifier) the protective legend:
introducing, referencing, or submitting
“CONFIDENTIAL
the native file must append the the [sic]
SUBJ_TO_PROTECTIVE.pRDERJN
file’s name (immediately following its
_CAUSE_[insert #]“ if such legend does
Bates identifier) the following protective
not already appear in the file name.
legend:
Any party using a native file containing
“CONFIDENTIAL-SUBJ
Confidential Information in a
TO_PROTECTIVE_ORDER_IN_
deposition, hearing, or at trial must
Cause No. 2014-C VF-001162-D1;
indicate the designation on the record so
Noemi Rodriguez and Paul Rodriguez
that it is reflected in the transcript of the
vs. State Farm Lloyds and Felipe Farias
Pagelofl8
Raul Rodriguez, et aL v. Stale Farm Lloyds et aL (2014-CVF-OO1 162-Di)
Comparison of Protective Orders
In the I rict Court of Webb County, proceedings.
Texas, 49th
Judicial District” if such
d. At the sole discretion of the producing
legend does not already appear in the
party, the producing party may place on
file name. Any party using a native file
containing Confidential Information in a any hard-copy documents that are
subject to this Protective Order
deposition, hearing, or at trial must
watermarks or seals to indicate the
indicate the designation on the record so
that it is reflected in the transcript of the document is subject to a Protective
proceedings. Order and is produced under the specific
cause number.
d. At the sole discretion of the producing
party, the producing party may place on
any hard-copy documents that are
subject to this Protective Order
watermarks or seals to indicate the
document is subject to a Protective
Order and is produced under the specific
cause number.
Why Plaintiffs’ Proposal is Not Acceptable:
When Plaintiffs’ proposed legend in subparagraph 6.c is combined with standard path, file name,
and Bates identifier information, it is veiy likely the combined information will exceed 255
characters. Since the Windows operating system has a 255 character limit for the combined file
name and file path information it will not be possible to use this file naming convention.
Why Defendants’ Proposal is Better:
State Farm’s proposed protective legend will allow the parties to accurately identi1’ electronic files
and the matter in which the file was produced, and is not likely to exceed the Windows 255
character limit when combined with standard path, file name, and Bates identifier information.
PageS of 18
Raul Rodriguez, et at v. Stale Farm Lloyds el a!. (2014-CVF-OO1 162-Di)
Comparison of Protective Orders
Iiai,it iff.s’ I’iotectiv Order State Farm’s I’ru(ec(ivc Order
L. — — — ..,. ‘....-
7. Any party who inadvertently wscioses 8. If Confidential Information is inadvertently
Confidential Information during the disclosed to a person who is not a Qualified
discovery process shall, immediately upon Person, the disclosing party shall
discovery of the inadvertent disclosure, ghe immediately upon discovery of the
ceinwritingtoith pMyorpliegJfl inadvertent disclosure, send a written
possession of such Information that the demand to the non-Qualified Person
uiforinanon is designated as Confidential” denisndhig the unmediate return and/or
and shall request its I mediateieturn. After destruction of the inadvertently disclosed
receipt of such notice, the parties shall treat Confidential Information, all copies made,
the information so designated as Confidential and all notes that reproduce, copy, or
Information under the terms of this Order, otherwise contain information derived from
unless released of this duty by further order Confidential Information. Further the
of this Court. Additicsially,any party who disclosing party shall send written notice to
bvntlyciConfdentiai the designating part3’s counsel providing:
Information during the coveryjrocess
rnesin addresses of the entity or
shall, immediately upon d1scovey ofthe .
Inadvertent disclosure, gIve notice in writing indl’6dualto wm the Confidential
Information was inadvertently disclosed.
to the party which produced arid proi4ded
this information, the names and addresses of b. The date ofthe disclosure,
the persons to whom It wasdIsclosed and the
date ofthe disclosure totherwith a copy of c. A copy ofthe notice and demand sent to
the notice by which the inadvertently the entity or Individual that
disclosing party iequestectthelinmediate inadvertently received the Confidential
return ofthedoc’its. Information.
Why Plaintiffs’ Proposal is Not Acceptable:
The parties generally agree that this protective order should provide procedures to be followed in the
event that Confidential Information is disclosed to a non-Qualified Person. Plaintiffs’ procedure
does not contain the detail necessary to ensure that any inadvertent disclosure of Confidential
Information is fully remedied. First, the paragraph limits the duties to remedy to “any party.”
Confidential Information may be inadvertently disclosed by any Qualified Person, not just a party to
the litigation, and not just during discovery. Second, Plaintiffs’ proposal merely provides
procedures for disclosure of hard-copy documents or other physically tangible items that can be
returned, and does not provide procedures to cover the destruction of ESI. If a non-Qualified Person
receives Confidential Information through electronic transmission or copied or reproduced ESI that
Page 9 of 18
Raul Rodriguez, et a!. v. State Farm Lloyds et a!. (2014-CVF-OO1 162-Di)
Comparison of Protective Orders
is Confidential Information, then the copies could not be returned, but would need to be destroyed.
In addition, the second sentence of Plaintiffs’ proposed paragraph 7 appears to address a separate
procedure for the parties to follow if Confidential Information is disclosed to a Qualified Person, but
that information is not properly designated as confidential. That issue is separate from the issue of
inadvertent disclosure of Confidential Information to a non-Qualified Person, and should be
addressed in a separate paragraph.
Why State Farm’s Proposal is Better:
State Farm’s proposed paragraph 8 ensures that in the event that Confidential Information is
inadvertently disclosed to a non-Qualified Person, there are proper procedures for the destruction of
ESI. Defendants also address the issue of disclosure of Confidential Information without a proper
designation in a separate paragraph (see State Farm’s ¶ 7).
8. The parties generally agree regarding the language of paragraph 8 of Plaintiffs’ Proposed
Protective Order, which corresponds with paragraph 7 of State Farm’s Proposed Protective
Order. The internal reference to subparagraph “7.a.” in Plaintiffs’ proposed subparagraph
8.b., however, should be changed to “8.a.” if Plaintiffs’ paragraph 8 is adopted.
To the extent I t the parties produce
information received from non-parties that
the non-parties have designated as
“confidential” such information shall be
treated as Confidential Information in
accordance with the terms of this Protective
Order.
a. With respect to any document, ESI, or
other material that is produced or
disclosed by a non-party, any party may
designate such information as
Confidential Information within thirty
(30) days of actual knowledge of the
Page lOofI8
Raul Rodriguez, et aL v. State Farm Lloyds et a!. (2014-CVF-OO1 162-Di)
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production or osure, or such other
time as may be agreed upon by the
parties.
b. Within thirty (30) days of receipt of
such notice, or such other time as may
be agreed upon by the parties, any
parties receiving such notice shall return
to the designating party all undesignated
copies of such information in their
custody or possession, in exchange for
the production of properly designated
information, or alternately (upon the
agreement of the parties) shall (i) affix
the legend to all copies of such
designated information in the party’s
possession, custody, or control
consistent with the terms of this
Protective Order, andJor (ii) with respect
to ESI, take such reasonable steps as
will reliably identify the item(s) as
having been designated as Confidential
Information.
c. Upon notice of designation pursuant to
this Paragraph, the parties also shall: (i)
make no further disclosure of such
designated information except as
allowed under this Order; (ii) take
reasonable steps to notify any persons
who were provided copies of such
designated information of the terms of
this Order; and (iii) take reasonable
steps to reclaim any such designated
information in the possession of any
person not permitted access to such
information under the terms of this
Order. No person shall be deemed to
Page 11 of 18
Raul Rodriguez, et aL v. State Farm Lloyds et a!. (201 4-CVF-001 162-Di)
Comparison of Protective Orders
disclosures made prior to notification of
any subsequent designation.
d. The parties shall serve a copy of this
Order simultaneously with any
discovery request made to a non-party.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ proposed protective order fails to address the issue of information produced or disclosed
by non-parties.
Why State Farm’s Proposal is Better:
To the extent any party will need to produce Confidential Information provided to it by non-parties
or use Confidential Information produced by non-parties in discovery, its duties to that third party
should be recognized by the protective order. State Farm’s proposal includes these terms to provide
that information from third-parties that may be produced will be protected by the order.
9. Any party may request the party designating 13. If a receiving party makes a good-faith
infomiation as “Confidential” to consent to determination that any materials designated
re-deSignate confidental Information as not Confidential Information are not in fact
confidential, which request shall not be “confidential” or “trade secret,” the receiving
rejected absent a good-faith determination by party may request that a designating party
the designating party that the Cccfldential rescind the designation. Such requests shall
Information is entitled to protection. not be rejected absent a good-tuiith
detenninatlon by the designating party that
the Confidential Information is entitled to
protection.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ proposal imposes a good-faith standard on the designating party but not on the receiving
party.
Page 12 of 18
Raul Rodriguez, et aL v. State Farm Lloyds et a!. (2014-CVF-OO1 162-Di)
Comparison of Protective Orders
Why State Farm’s Proposal is Better:
State Farm’s proposal includes the requirement that the receiving party can only request that the
designating party rescind a Confidential Information designation if that request is made in good-
faith.
10. Deposition testimony is Confidential 10. Deposition testimony is Confidential
Information under the terms of this Order Information under the terms of this Order
only if counsel for a party advises the court only if counsel for a party advises the court
reporter and opposing counsel of that reporter and opposing counsel of that
designation at the deposition, or by written designation at the deposition, or by written
designation to all parties and the court designation to all parties and the court
reporter within thirty (30) business days after reporter within thirty (30) business days after
receiving the deposition transcript. All receiving the deposition transcript. All
deposition transcripts shall be considered deposition transcripts shall be considered
confidential until thirty (30) days following Confidential Information until thirty (30)
the receipt of the deposition transcript. The days following the receipt of the deposition
court reporter shall note on the record the transcript. In the event testimony is
designation of said information as designated as Confidential Information, the
Confidential and shall separately transcribe court reporter shall note the designation on
those portions of the testimony and mark the the record, shall separately transcribe those
face of such portion of the transcript as portions of the testimony, and shall mark the
“Confidential.” The parties may use face of such portion of the transcript as
Confidential Information during any “ConfidentiaL Information.” The parties may
deposition, provided the witness is apprised use Confidential Information during any
of the terms of this Order and executes the deposition, provided:
acknowledgment attached hereto as Exhibit
a. The witness is apprised of the terms of
“A.” The parties may use Confidential
this Order and executes the
Information during a deposition only if the
acknowledgment attached hereto as
room is first cleared of all persons except the
Exhibit A.
court reporter, the witness being deposed,
counsel for the parties and any expert entitled
Page 13 of 18
Raul Rodriguez, et aL v. State Farm Lloyds et a!. (2014-CVF-OO1 162-Di)
Comparison of Protective Orders
to attend, and only if said witness executes b. Ihe room is cleared of
the acknowledgement attached as Exhibit who are not Qualified Persons.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ proposed paragraph 10 does not allow all Qualified Persons in attendance at a deposition
to remain in the room while a deponent testifies regarding Confidential Information. Rather, the
attendees are limited to “the court reporter, the witness being deposed, counsel for the parties and
any expert entitled to attend.” It is common practice to have a party representative present at
depositions and party representatives are Qualified Persons under the terms of Plaintiffs’ Proposed
Protective Order. There is no reason to exclude Qualified Persons from a deposition if they are
otherwise entitled to attend the deposition.
Why State Farm’s Proposal is Better:
State Farm’s proposal provides all Qualified Persons may stay in the room if Confidential
Information is discussed during a deposition if they are otherwise entitled to attend the deposition.
The simplified procedure provided in State Farm’s proposal clarifies the standard procedures and
rights related to depositions.
11. The parties agree regarding the language of paragraph 11 of Plaintiffs’ Proposed Protective
Order, which corresponds with paragraph 11 of State Farm’s Proposed Protective Order.
12. The parties agree regarding the language of paragraph 12 of Plaintiffs’ Proposed Protective
Order, which corresponds with paragraph 12 of State Farm’s Proposed Protective Order.
13. At any time after the dei onfidential r making a good-faith t to resolve
Documents, and after making a good-faith any disputes regarding whether any
effort to resolve any disputes regarding designated materials constitute Confidential
whether any designated materials constitute Information, counsel of the party or parties
Confidential Information, counsel of the receiving the Confidential Information may
party or parties receiving the Confidential challenge such designation of all or any
Page 14 of 18
Raul Rodriguez, et aL v. State Farm Lloyds et a!. (2014-CVF-OO1 162-Di)
Comparison of Protective Orders
Documents may challenge the Confidential portion thereof by providing written notice
designation of all or any portion thereof by the challenge to the designating party’s
providing written notice of the challenge to counsel. The designating party shall have
counsel for the party disclosing or producing thirty (30) days from the date of receipt of a
the Confidential Documents. The party or written challenge to file a motion for specific
parties disclosing or producing the protection with regard to any Confidential
Confidential Documents shall have twenty Information in dispute. If the party or parties
(20) days from the date of receipt of a written producing the Confidential Information does
challenge to file a motion for specific not timely file a motion for specific
protection with regard to any Confidential protection, then the Confidential Information
Documents in dispute. If the party or parties in dispute shall no longer be subject to
producing the Confidential Documents does confidential treatment as provided in this
not timely file a motion for specific Order.
protection, then the Confidential Documents
in dispute shall no longer be subject to
confidential treatment as provided in this
Order.
Why Plaintiffs’ Proposal is Not Acceptable:
In State Farm’s experience, twenty days is too short a time to complete and file a motion for
protective order. Additionally the term “Confidential Documents” is not defined in Plaintiffs’
proposal.
Why State Farm’s Proposal is Better:
State Farm’s proposal provides a designating party thirty days to respond to a written challenge in
order to create consistency and provide a reasonable amount of time for a designating party respond
to a challenge. In addition it uses the term “Confidential Information,” which is consistent with the
other paragraphs in State Farm’s proposed protective order.
14. If a timely motion for speci..c protection is 15. If a timely motion for specific protection is
filed, any disputed document will remain filed, any disputed Confidential Information
Page 15 ofl8
Raul Rodriguez, et a!. v. State Farm Lloyds et a!. (2014-CVF-OO1 162-fl)
Comparison of Protective Orders
confidental untila contrary determinatioil will remain subject to this Order until a
made by the Court and all such documents, contrary determination is made by the Court.
information or testimony shall continue to be At any hearing the designating party shall
treated as Confidential Information until this have the burden to establish that party’s right
Court makes a contrary decision regarding to protection as if this Order did not exist. A
the status of the documents, information or party’s failure to challenge the Confidential
testimony. At any hearing to resolve a Information designation of any documents,
challenge of a Confidential designation, the ESI, information, or testimony does not
party designating the information as constitute an admission that the document,
“Confidential” shall have the burden to ESI, information or testimony is, in fact,
establish that party’s right to protection as if sensitive, confidential, or proprietary. No
this Order did not exist. A party’s failure to party waives its right to contend at trial or
challenge the designation of documents, hearing that such document, ESI,
information, or testimony as “Confidential” information or testimony is not sensitive,
information does not constitute an admission confidential, privileged or proprietary,
that the document, information or testimony provided the party provides notice of
is, in fact, sensitive, confidential, or intention to do so at least twenty (20) days
proprietary. No party waives its right to before such trial or hearing.
contend at trial or hearing that such
document, information or testimony is not
sensitive, confidential, privileged or
proprietary, provided the party provides
notice of intention to do so at least twenty
(20) days before such trial or hearing.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ proposal does not address electronically stored information.
Why State Farm’s Proposal is Better:
Defendants add electronically stored information to the list of relevant information. The parties are
in general agreement regarding this paragraph.
Page 16 of 18
Raul Rodriguez, et aL v. State Farm Lloyds et a!. (2014-CVF-001162-D1)
Comparison of Protective Orders
15. The parties agree regarding the language of paragraph 15 of Plaintiffs’ Proposed Protective
Order, which corresponds with paragraph 16 of State Farm’s Proposed Protective Order.
16. The parties agree regarding the language of paragraph 16 of Plaintiffs’ Proposed Protective
Order, which corresponds with paragraph 17 of State Farm’s Proposed Protective Order.
17. The parties agree regarding the language of paragraph 17 of Plaintiffs’ Proposed Protective
Order, which corresponds with paragraph 18 of State Farm’s Proposed Protective Order.
18. The parties agree regarding the language of paragraph 18 of Plaintiffs’ Proposed Protective
Order, which corresponds with paragraph 19 of State Farm’s Proposed Protective Order.
20. Wii_tbrt3 -
) business days after the
final resolution of this litigation, the
plaintiffs) shall return or destroy
Confidential Information they received
during this litigation. As to those materials
that contain or reflect Confidential
Information, but that constitute or reflect the
plaintiffs) counsel’s own work product,
counsel for the plaintiff(s) are entitled to
retain such work product in their files in
accordance with the provisions of this
Protective Order, so long as the work product
is clearly marked to reflect that it contains
information subject to this Protective Order.
Plaintiffs counsel is entitled to retain
pleadings, affidavits, motions, briefs, other
papers filed with the Court, deposition
transcripts, and the trial record even if such
materials contain Confidential Information,
so long as such materials are clearly marked
to reflect that they contain information
subject to this Protective Order and are
maintained in accordance with the provisions
Page I7of 18
Raul Rodriguez, et a!. i’. State Farm Lloyds et a!. (2014-CVF-0O1 162-D1)
Comparison of Protective Orders
of this Protective Order. ..rr’s counsel
shall certifr in writing compliance with the
provision of this paragraph after forty-five
(45) business days after the final resolution
of this litigation.
Why Plaintiffs’ Proposal is Not Acceptable:
Plaintiffs’ Proposed Protective Order omits clear procedures for the destruction or return of State
Farm’s Confidential Information after the resolution of the matter. This unreasonably enlarges the
likelihood that Confidential Information could be improperly or in&lvertently disclosed to a non-
Qualified Person. Plaintiffs’ proposed order effectively grants an unlimited use license to each
plaintiff or their counsel to retain and use all State Farm’s Confidential Information received for an
unlimited period of time. That unlimited use is clearly beyond the scope of use necessary for the fair
adjudication of this claim.
Why State Farm’s Proposal is Better:
State Farm’s proposal reasonably limits the use of Confidential Information by requiring that State
Farm’s Confidential Information will be destroyed following the resolution of the matter.
Page 18ofl8
___________
Filed
2/23/2015 1118:35AM
Esther Degollado
District Clerk
Webb District
2014CVF001162 Dl
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
Plaintiff, §
§
v. § CIVIL CASE NO. Fl-_____
§
§
§
Defendant. §
PROTECTIVE ORDER
1. Proceedlnas and InformatIon Governed. This Order (“Protective Order”) is made
under Rule 26(c) of the Federal Rules of Civil Procedure (“FED. R. CIV. P.”).
This Protective Order applies to any document, information, or other tangible or
intangible thing (collectively, “documents”) furnished by a party to any other party, as well
as documents furnished by non-parties who receive subpoenas in connection with this action,
if and when the documents are designated by a party or non-party as “Confidential
Information” or “Highly Confidential Information” in accordance with the terms of this
Protective Order. This Protective Order also applies to copies, excerpts, abstracts, analyses,
summaries, descriptions, or other forms of recorded information or data containing,
reflecting, or disclosing all or parts of designated documents.
2. DesIgnation and Maintenance of Documents and Information.
A. “Con fidential Information” designation means that the document contains trade
secrets or commercial information not publicly known, which trade secrets or commercial
information is of technical or commercial advantage to its possessor, in accordance with FED.
R. CIV. P. 26(c)(7), or other information required by law or agreement to be kept confidential.
B. The “Highly Confidential Information” designation means that the document
contains information that the producing party deems especially sensitive, which may include,
but is not limited to, confidential research and development, financial, technical, marketing,
Patenr Protective Order 12/1/09
any other sensitive trade secret information, or information capable of being utilized for the
preparation or prosecution of a patent application dealing with such subject matter.
C. “Confidential Information” and “Highly Confidential Information” does not
include, and this Protective Order does not apply to, documents already in the knowledge or
possession of the party to whom disclosure is made unless that party is already bound by an
agreement not to disclose such information, or information that has been disclosed to the
public or third persons in a manner making such information no longer confidential.
3. Documents Produced In Discovery and Depositions.
A. Documents and things produced during the course of this litigation within
the scope of paragraph 2(A) or 2(8) above, may be designated by the producing party as
containing “Confidential Information” by placing on each page and each thing a legend
substantially as follows:
CONFIDENTIAL INFORMATION
SUBJECT TO PROTECTIVE ORDER
Documents and things produced during the course of this litigation within the scope of
paragraph 2(A) above may be designated by the producing party as containing “Highly
Confidential Information” by placing on each page and each thing a legend substantially as
follows:
HIGHLY CONFIDENTIAL INFORMATION
SUBJECT TO PROTECTIVE ORDER
8. Depositions
(i) For deposition testimony or exhibits to be entitled to protection under
this Order, a party must designate the testimony and exhibits disclosed at a deposition as
“Confidential Information” or “Highly Confidential Information” by requesting the reporter
to so designate the transcript or any portion of the transcript at the time of the deposition.
(ii) If no such designation is made at the time of the deposition, any party
has fourteen (14) days after delivery by the court reporter of the transcript of the deposition
session to designate, in writing to the other parties and to the court reporter, what portions
of the transcript and which exhibits the party designates as “Confidential Information” and
“Highly Confidential Information.”
Patent Protective Oider 12/1109 2
(iii) During the transcription and following fourteen (14) day period after a
deposition session, the transcript and exhibits must be treated as Highly Confidential
Lnformation, unless the disclosing party consents to less confidential treatment of the
information.
(iv) Each party and the court reporter must attach a copy of any final and
timeLy written designation notice to the transcript and each copy of the transcript in its
possession, custody or control, and the portions designated in such notice must thereafter be
treated in accordance with this Protective Order. it is the responsibility of counsel for each
party to maintain materials containing Confidential Information or Highly Confidential
Information in a secure manner and appropriately identified so as to allow access to such
information only to such persons and under such terms as is permitted under this Protective
Order.
(v) If no such designation is made at the deposition or within the fourteen
(14) day period following delivery of the transcript, then the entire deposition will be
considered devoid of Confidential Information or Highly Confidential Information.
4. Inadvertent Failure to Designate.
A. The inadvertent failure to designate a documents as “Confidential
Information” or “Highly Confidential Information” will not be a waiver of a claim that the
document Contains confidential information, and will not prevent the producing party from
designating such information as confidential at a later date in writing, so long as the
designation is done with particularity.
B. In the event a producing party late designates a document as “Confidential
Information” or “Highly Confidential Information,” the document must be treated by the
receiving party as confidential from the time of receipt of the notice of the “Confidential
information” or “Highly Confidential Information” designation.
5. Challenges to Designations.
A party’s designation of documents “Confidential Information” or “Highly
Confidential Information” is not binding if the procedures below are followed:
A. A receiving party may challenge a producing party’s designation at any time.
Any receiving party may request in writing that the producing party change the designation.
The producing party within fourteen (14) days after receipt of a written challenge, must
advise the receiving party whether or not it will change the designation.
Patent Protcctive Order 12I/O9 3
B. Jfthe parties are unable to reach agreement after the expiration of this fourteen
(14) day period, they shall confer. If they cannot resolve the issue, the receiving party may
seek an order to alter the confidential status of the designated information.
C. UntiL the presiding judge has ruled on a dispute under this paragraph, the
“Confidential Information” or “Highly Confidential Information” designation will remain
in full force and effect, and the document continues to be protected by this Protective Order.
6. Disclosure and Use of Confidential Information.
A. Information designated as “Confidential Information” or “Highly Confidential
Information” may only be used for purposes of preparation, trial, and appeal of this action.
“Confidential Information” or “Highly Confidential Information” may not be used under any
circumstances for prosecuting any patent application, for patent licensing, or for any other
purpose.
B. Subject to paragraph 9 below, “Confidential Information” may be disclosed by
the receiving party only to the following individuals, provided that such individuals are
informed of the terms of this Protective Order: (a) two employees of the receiving party
who are required in good faith to provide assistance in the conduct of this Litigation,
including any settlement discussions, and who are identified as such in writing to counsel for
the designating party in advance of the disclosure; (b) two in-house counsel who are
identified by the receiving party; (c) outside counsel of record for the receiving party; (d)
supporting personnel employed by(b) and (c), such as paralegals, legal secretaries, data entry
clerks, legal clerks, and private photocopying services; (e) experts or consultants; and (fl
any persons requested by counsel to furnish services such as document coding, image
scanning, mock trial, jury profiling, translation services, court reporting services,
demonstrative exhibit preparation, or the creation of any computer database from documents.
C. Subject to paragraph 9 below, “Highly Confidential Information” may be
disclosed by the receiving party only to the following individuals, provided that such
individuals are informed of the terms of this Protective Order: (a) outside counsel of record
for the receiving party; (b) supporting personnel employed by outside counsel, such as
paralegals, legal secretaries, data entry clerks, legal clerks, private photocopying services;
(c) experts or consultants; and (d)those individuals designated in paragraph 6(F)(c) below.
D. Further, prior to disclosing “Confidential Information” or “Highly Confidential
Information” to a receiving party’s proposed expert, consultant, or employees, the receiving
party must provide to the producing party a signed Confidentiality Agreement in the form
attached as Exhibit A, the resume or curriculum vitae of the proposed expert or consultant,
Pareit Proiccive Order I 2/I /09 4
the expert or consultant’s business affiliation, and any current and past consulting
relationships in the industry. The producing party will thereafter have fourteen (14) days
from receipt of the Confidentiality Agreement to object to any proposed individual. The
objection must be made for good cause and in writing, stating with particularity the reasons
for the objection. Failure to object within fourteen (14) days constitutes approval. If the
parties are unable to resolve any objection, the receiving party may apply to the presiding
judge to resolve the matter. There will be no disclosure to any proposed individual during
the fourteen (14) day objection period, unless that period is waived by the producing party,
or if any objection is made, until the parties have resolved the objection, or the presiding
judge has ruled upon any resultant motion.
E. Counsel is responsible for the adherence by third-party vendors to the terms
and conditions of this Protective Order. Counsel may fulfill this obligation by obtaining a
signed Confidentiality Agreement in the form attached as Exhibit B.
F. “Confidential Information” or “Highly Confidential Information” may be
disclosed to a person who is not already allowed access to such information under this
Protective Order (a) the information was previously received or authored by the person
or was authored or received by a director, officer, employee or agent of the company for
which the person is testifying as a designee under FED. R. Civ. P. 30(b)(6); (b) the
designating party is the person or is a party for whom the person is a director, officer,
employee, consultant or agent; or (c) counseL for the party designating the material agrees
that the material may be disclosed to the person.
In the event of disclosure under this section 6(F), only the reporter, the person, his or
her counsel, the presiding judge, and persons to whom disclosure may be made and who are
bound by this Protective Order, may be present during the disclosure or discussion of
Confidential Information.
Disclosure of material pursuant to this section 6(F) does not constitute a waiver of the
confidential stams of the material so disclosed.
7. Non-Party Information.
The existence of this Protective Order must be disclosed to any person producing
documents, tangible things, or testimony in this action who may reasonably be expected to
desire confidential treatment for such documents, tangible things or testimony. Any such
person may designate documents, tangible things, or testimony confidential pursuant to this
Protective Order.
Pateni Pro1elive Order 12/1/09 5
8. Filing Documents With the Court.
Any party may submit Confidential Information to the court under seal by designating
the document “sealed” in the CM/lCF system of the court or may deliver the document for
filing by the Clerk’s Office. If a party delivers a copy to the court, the document must be in
a sealed envelope bearing the caption of this action and a label containing the following:
CONFIDENTiAL IN FORMATION
[case captioni
This envelope, which is being filed under seal,
contains documents that are subject to a Protective Order
governing the use of confidential discovery material.
9. No Prejudice.
Producing or receiving “Confidential Information” or “Highly Confidential
Information,” or otherwise complying with the terms of this Protective Order, will not: (a)
operate as an admission by any party that any particular “Confidential Information” or
“Highly Confidential Information” contains or reflects trade secrets or any other type of
confidentiaL or proprietary information; (b) prejudice the rights of a party to object to the
production of information or material that the party does not consider to be within the scope
of discovery; (c) prejudice the rights of a party to seek a determination by the presiding
judge that particular materials be produced; (d) prejudice the rights of a party to apply to the
presiding judge for further protective orders; or (e) prevent the parties from agreeing in
writing to alter or waive the provisions or protections provided for in this Protective Order
with respect to any particular information or material.
10. Conclusion of Litigation.
Within sixty (60) days after final judgment in this action, including the exhaustion of
all appeals, or within sixty (60) days after dismissal pursuant to a settlement agreement, each
party or other person subject to the terms of this Protective Order is under an obligation to
destroy or return to the producing party all materials and documents containing “Confidential
that
Information” or “Highly Confidential Information,” and to certify to the producing party
this destruction or return has been done. 1-Jowever, outside counsel for any party is entitled
to retain all court papers, trial transcripts, exhibits, and attorney work provided that any such
materials are maintained and protected in accordance with the terms of this Protective Order.
Patent Plotective Order 12/1/09 6
_____day
II. Other Proceedings.
By entering this Protective Order and limiting the disclosure of information in this
case, the presiding judge does not intend to preclude another court from finding that
information may be relevant and subject to disclosure in another case. Any person or party
subject to this Protective Order who may be subject to a motion to disclose another party’s
information designated “Confidential” or “Highly Confidential” pursuant to this Protective
Order must pro mptly notify that party of the motion so that the party may have an opportunity
to appear and be heard on whether that information should be disclosed.
12. Remedies.
It is ORDERED that this Protective Order will be enforced by the sanctions set forth
in FED. R. Civ. P. 37(a) and any other sanctions as may be available to the presiding judge,
including the power to hold parties or other violators of this Protective Order in contempt.
All other remedies available to any person injured by a violation of this Protective Order are
fully reserved.
13. Relief from Protective Order.
Any party may petition the presiding judge for good cause shown if the party desires
relief from a term or condition of this Protective Order.
Signed at Houston, Texas, this of , 20_.
[Judge’s Namej
United States District Judge
Patenc Protective Order I2/iO9
_____________________________,un
___________
___________
______
__ _______
__________
_______,da
Exhibit A
[CAPTION]
CONFIDENTIALITY AGREEMENT FOR EXPERT,
CONSULTANT OR EMPLOYEES OF ANY PARTY
I, penalty of perjury, 28 U.S.C. § 1746, that:
1. Information, including documents and things, designated as “Confidential
Information” or “HighLy Confidential Information,” as defined in the Protective Order entered in the
above-captioned action (“Protective Order”), is being provided to me pursuant to the terms and
restrictions of the Protective Order.
2. 1 have been given a copy of and have read the Protective Order.
3. I am familiar with the terms of the Protective Order and I agree to comply with and
to be bound by its terms.
4. I submit to the jurisdiction of the United States District Court for the Southern
District of Texas for enforcement of the Protective Order.
5. 1 agree not to use any “Confidential Information” or “Highly Confidential
Information” disclosed to me pursuant to the Protective Order except for purposes of the above-
captioned litigation and not to disclose any of this information to persons other than those
specifically authorized by the Protective Order, wIthout the express written consent of the party who
designated the information as confidential or by order of the presiding judge.
6. 1 also agree to notify any stenographic, clerical or technical personnel who are
required to assist me of the terms of this Protective Order and of its binding effect on them and me.
7. 1 understand that [am to retain all documents or materials designated as or containing
“Confidentia Information” or “Highly Confidential Information” in a secure manner, and that all
l
such documents and materials are to remain in my personal custody until the completion of my
assigned duties in this matter, whereupon all such documents and materials, including all copies
thereot and any writings prepared by me containing any “Confidential Information” or “Highly
Confidential Information” are to be returned to counsel who provided me with such documents and
materials.
Signed at this ,20.
Signature
LA.1’rj c,y of F?P*, cert—
theIW’day o’-tt4Aj 2Of
Patent Protective Ordcr
7 STH
By *puty
____________________________
_______________,
_________,
______,
Exhibit B
[CAPTION]
CONFIDENTIALITY AGREEMENT FOR THIRD-PARTY VENDOR S
1, penalty of perjury, 28 U.S.C. § 1746, that:
1. tnformation, including documents and things, designated as “Confidential
Information” or “Highly Confidential Information” as defined in the Protective Order entered in the
above-captioned action (“Protective Order”), is being provided to me pursuant to the terms and
restrictions of the Protective Order.
2. 1 have been given a copy of and have read the Protective Order.
3. 1 am familiar with the terms of the Protective Order and I agree to comply with and
to be bound by its terms.
4. I submit to the jurisdiction of the United States District Court for the Southern
District of Texas for enforcement of the Protective Order.
5. I agree not to use any ContidentiaL Information or Highly Confidential Infonnation
disclosed to me pursuant to the Protective Order except for purposes of the above-captioned
litigation and not to disclose any of this information to persons other than those specifically
authorized by the Protective Order, without the express written consent of the party who designated
the information as confidential or by order of the presiding judge.
Signed
at
this day of —, 20_.
Signature
Patet Protcctivc 9
Filed
2/23/2015 11:1835 AM
Esther Degollado
District Clerk
Webb District
2014CVF001152 Dl
iN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
§
§
Plaintiff §
v. § CIVIL ACTION NO.
§
§
Defendant §
CONF[DENTIALITY AND PROTECTIVE ORDER
Before the court is the joint motion of the parties for the entry of a confidentiality and
protective order (“Protective Order”). After careful consideration, it is hereby ORDERED as
follows:
1. Classified information
“Classified Information” means any information of any type, kind, or character that is
designated as “Confidential”, “For Counsel Only”, or “Attorneys Eyes Only” by any of the
supplying or receiving persons, whether it be a document, information contained in a document,
information revealed during a deposition, information revealed in an interrogatory answer, or
otherwise.
2. Qualified Persons
“Qualified Persons” means:
a. For Counsel or Attorneys Only information:
1. retained counsel fur the parties in this litigation and their respective staff;
ii. actual or potential independent experts or consultants (and their
administrative or clerical staff) engaged in connection with this litigation
(which shall not include the current employees, officers, members, or
agents of parties or affiliates of parties) who, prior to any disclosure of
Classified Information to such person, have signed a document agreeing to
be bound by the tenns of this Protective Order (such signed document to
be maintained by the attorney retaining such person and have been
designated in writing by notice to all counsel;
iii. this court and its staff and any other tribunal or dispute resolution officer
duly appointed or assigned in connection with this litigation.
b. For Confidential information:
i. the persons identified in subparagraph 2(a);
ii. the party, if a natural person;
iii. if the party is an entity, such oflicers or employees of the party who are
actively involved in the prosecution or dcfense of this case who, prior to
any disclosure of Confidential information to such person, have been
designated in writing by notice to all counsel and have signed a document
agreeing to be bound by the terms of this Protective Order (such signed
document to be maintained by the attorney designating such person);
iv. litigation vendors, court reporters, and other litigation support personnel;
v. any person who was an author, addressee, or intended or authorized
recipient of the Confidential information and who agrees to keep the
information confidential, provided that such persons may see and use the
Confidential information but not retain a copy.
c. Such other person as this court may designate after notice and an opportunity to
be heard.
3. Designation Criteria
a. Nonclassifled Information. Classified Information shall not include information
that either:
i. is in the public domain at the time of disclosure, as evidenced by a written
document;
ii. becomes part of the public domain through no fault of the recipient, as
evidenced by a written document;
iii. the receiving party can show by written document was in its rightful and
lawful possession at the time of disclosure; or
iv. lawfully comes into the recipient’s possession subsequent to the time of
disclosure from another source without restriction as to disclosure,
provided such third party has the right to make the disclosure to the
receiving party.
b. ClassUied Information. A party shall designate as Classified Information only
[21
such information that the party in good faith believes in fact is confidential. Information that is
generally available to the public, such as public filings, catalogues, advertising materials, and the
like, shall not he designated as Classified.
Inlbrmation and documents that may be designated as Classified Information include, but
are not limited to, trade secrets, confidential or proprietary financial information, operational
data, business plans, and competitive analyses, personnel files, personal information that is
protected by law, and other sensitive information that, if not restricted as set forth in this order,
may subject the producing or disclosing person to competitive or financial injury or potential
legal liability to third parties.
Correspondence and other communications between the parties or with nonparties may
be designated as Classified lnfbrmation if the communication was made with the understanding
or reasonable expectation that the information would not become generally available to the
public.
c. For Counsel or Attorneys Only. Ihe designation “For Counsel Only” or
“Attorneys Eyes Only” shall be reserved for information that is believed to be unknown to the
opposing party or parties, or any of the employees of a corporate party. For purposes of this
order, so-designated information includes, but is not limited to, product formula information,
design information, non-public financial information, pricing information, customer identification
data, and certain study methodologies.
d. Ultrasensitive Informalion At this point, the parties do not anticipate the need for
higher levels of confidentiality as to ultrasensitive documents or information. However, in the
event that a court orders that ultrasensitive documents or information be produced, the parties
will negotiate and ask the court to enter an ultrasensitive information protocol in advance of
production to further protect such information.
4. Use of Classified Information
All Classified Information provided by any party or nonparty in the course of this
[3]
litigation shall be used solely for the purpose of preparation, trial, and appeal of this litigation
and for no other purpose, and shall not be disclosed except in accordance with the terms hereof
5. Marking of Documents
Documents provided in this litigation may he designated by the producing person or by
any party as Classified Information by marking each page of the documents so designated with a
stamp indicating that the information is “ConfidentiaL”, “For Counsel Only”, or “Attorneys Eyes
Only”. In lieu of marking the original of a document, lithe original is not providcd, the
designating party may mark the copies that are provided. Originals shall be preserved for
inspection.
6. Disclosure at Dcpositions
Information disclosed at (a) the deposition of a party or one of its present or former
officers, directors, employees, agents, consultants, representatives, or independent experts
retained by counsel for the purpose of this litigation, or (b) the deposition of a nonparty may be
designated by any party as Classified Information by indicating on the record at the deposition
that the testimony is “Confidential” or “For Counsel Only” and is subject to the provisions of this
Order.
Any party also may designate information disclosed at a deposition as Classified
Information by notifying all parties in writing not later than 30 days of receipt of the transcript of
the specific pages and lines of the transcript that should be treated as Classified Information
thereafter. Each party shall attach a copy of each such written notice to the face of the transcript
and each copy thereof in that party’s possession, custody, or control. All deposition transcripts
shall be treated as For Counsel Only for a period of 30 days after initial receipt of the transcript.
To the extent possible, the court reporter shall segregate into separate transcripts
information designated as Classified Information with blank, consecutively numbered pages
bcing provided in a riondesignated main transcript. The separate transcript containing Classified
Information shall have page numbers that correspond to the blank pages in the main transcript.
Counsel for a party or a nonparty witness shall have the right to exclude from depositions
[4j
any person who is not authorized to receive Classified Information pursuant to this Protective
Order, hut such right of exclusion shall be applicable only during periods of examination or
testimony during which Classified Information is being used or discussed.
7. Disclosure to Qualified Persons
a. To Whom. Classified Information shall not be disclosed or made available by the
receiving party to persons other than Qualified Persons except as necessary to comply with
applicable law or the valid order of a court of competent jurisdiction; provided, however, that in
the event of a disclosure compelled by law or court order, the receiving party will so notify the
producing party as promptly as practicable (if at all possible, prior to making such disclosure)
and shall seek a protective order or confidential treatment of such intbrmation. Information
designated as For Counsel Only shall be restricted in circulation to Qualified Persons described
in subparagraph 2(a).
b. Retenilon of Copies During this Liigation. Copies of For Counsel Only
inftrmation shall be maintained only in the offices of outside counsel for the receiving party and,
to the extent supplied to experts described in subparagraph 2(a)(ii), in the offices of those
experts. Any documents produced in this litigalion, regardless of classification, thai. are provided
to Qualified Persons shall be maintained only at the office of such Qualified Person and only
necessary working copies of any such documents shall be made. Copies of documents and
exhibits containing Classified Information may be prepared by independent copy services,
printers, or illustrators for the purpose of this litigation.
c. Each party’s outside counsel shall maintain a log of all copies of For Counsel Only
documents that are delivered to Qualified Persons.
8. Unintentional Disclosures
Documents unintentionally produced without designation as Classified Information later
may be designated and shall be treated as Classified Information from the date written notice of
the designation is provided to the receiving party.
If a receiving party learns of any unauthorized disclosure of Confidential inlbrniation or
[5]
For Counsel Only information, the party shall immediately upon learning of such disclosure
inform the producing party of all pertinent facts relating to such disclosure and shall make all
reasonable efforts to prevent disclosure by each unauthorized person who received such
information.
9. Documents Produced for Inspection Prior to Designation
In the event documents are produced for inspection prior to designation, the documents
shall be treated as For Counsel Only during inspection. At the time of copying for the receiving
parties, Classified Information shall be marked prominently “Confidential”, “For Counsel Only”,
or “Attorneys Eyes Only” by the producing party.
10. Consent to Disclosure and Use in Examination
Nothing in this order shall prevent disclosure beyond the terms of this order if each party
designating the information as Classified Information consents to such disclosure or if the court,
afler notice to all affected parties and nonparties, orders such disclosure. Nor shall anything in
this order prevent any counsel of record from utilizing Classified Infonnation in the examination
or cross-examination of any person who is indicated on the document as being an author, source,
or recipient of the Classified Information, irrespective of which party produced such information.
11. Challenging the Designation
a. C1assfled Information. A party shall not he obligated to challenge the propriety
of a designation of Classified Information at the time such designation is made, and a failure to
do so shall not preclude a subsequent challenge to the designation. In the event that any party to
this litigation disagrees at any stage of these proceedings with the designation of any information
as Classified Information, the parties shall first try to resolve the dispute in good faith on an
informal basis, such as by production of redacted copies. If the dispute cannot be resolved, the
objecting party may invoke this Protective Order by objecting in writing to the party who
designated the document or information as Classified Information. The designating party shall
then have 14 days to move the court for an order preserving the designated status of the disputed
information. The disputed information shall remain Classified Information unless and until the
[6j
court orders otherwise. Failure to move for an order shall constitute a termination of the status of’
such item as Classified Information.
b. Qualified Persons. In the event that any party in good faith disagrees with the
designation of a person as a Qualified Person or the disclosure of particular Classified
Information to such person, the parties shall first try to resolve the dispute in good faith on an
informal basis. If the dispute cannot be resolved, the objecting party shall have 14 days from the
date of the designation or, in the event particular Classified Information is requested subsequent
to the designation of the Qualified Person, 14 days from service of the request to move the court
for an order denying the disposed person (a) status as a Qualified Person, or (b) access to
particular Classified Information. The objecting person shall have the burden of demonstrating
that disclosure to the disputed person would expose the objecting party to the risk of serious
harm. Upon the timely tiling of such a motion, no disclosure of Classified Information shall be
made to the disputed person unless and until the court enters an order preserving the designation.
12. Manner of Use in Proceedings
In the event a party wishes to use any Classified Information in affidavits, declarations,
briefs, memoranda of law, or other papers filed in this litigation, the party shall do one of the
following: (I) with the consent of the producing party, file only a redacted copy of the
information; (2) where appropriate (e.g., in connection with discovery and evidentiary motions)
with
provide the information solely for in camera review; or (3) file such information under seal
the court consistent with the sealing requirements of the court.
13. Filing Under Seal
The clerk of this court is directed to maintain under seal all documents, transcripts of
seal in
deposition testimony, answers to interrogatories, admissions, and other papers filed under
this litigation that have been designated, in whole or in part, as Classified lntbrmation by any
party to this litigation consistent with the sealing requirements of the court.
14. Return of Documents
Not later than 120 days after conclusion of this litigation and any appeal related to it, any
[7]
Classified Information, all reproductions of such information, and any notes, summaries, or
descriptions of such information in the possession of any of the persons specified in paragraph 2
(except subparagraph 2(a)(iii)) shall be returned to the producing party or destroyed, except as
this court may otherwise order or to the extent such information has been used as evidence at any
trial or hearing. Notwithstanding this obligation to return or destroy information, counsel may
retain attorney work product, including document indices, so long as that work product does not
duplicate verbatim substantial portions of the text of any Classified Information.
15. thigoing Obligations
Insofar as the provisions of this Protective Order, or any other protective orders entered
in this litigation, restrict the communication and use of the information protected by it, such
provisions shall continue to be binding after the conclusion of this litigation, except that (a) there
shall be no restriction on documents that are used as exhibits in open court unless such exhibits
were filed under seal, and (b) a party may seek the written permission of the producing party or
order of the court with respect to dissolution or modification of this, or any other, protective
order.
16. Advice to Clients
This order shall not bar any attorney in the course of rendering advice to such attorney’s
client with respect to this litigation from conveying to any party client the attorney’s evaluation
in a general way of Classified Information produced or exchanged under the terms of this order;
provided, however, that in rendering such advice and otherwise communicating with the client,
the attorney shall not disclose the specific contents of any Classified Information produced by
another party if such disclosure would be contrary to the terms of this Protective Order.
17. Duty to Ensure Compliance
Any party designating any person as a Qualified Person shall have the duty to reasonably
ensure that such person observes the terms of this Protective Order and shall be responsible upon
breach of such duty for the failure of such person to observe the terms of this Protective Order.
[81
__
________
18. Waiver
Pursuant to Federal Rule of Evidence 502, neither the attorney-client privilege nor work
product protection is waived by disclosure connected with this litigation.
19. Modification and Exceptions
The parties may, by stipulation, provide for exceptions to this order and any party may
seek an order of this court modifying this Protective Order.
It is SO ORDERED this day of , 20
UNITED STATES DISTRICT JUDGE
the
By
[9]
Filed
2/23/2015 11:18 35AM
Esther Dlado
1/22/2015 3:4qlerk
Esther gbliaUstrict
2014 CC*t)Q Dl
Webb District
201 4-CVF-0D1 1 62-Di
CAUSE NO. 2014-CVF-001162-D1
RAUL RODRIGUEZ AND NOEW § IN THE DISTRICT COURT OF
RODRIGUEZ, §
§
Plaintiffs, §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
FELIPE FARJAS, §
§
TH
49
Defendants. § JUDICIAL DISTRICT
PROTECTIVE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced by the parties and non-parties in this litigation, and that the following
provisions, limitations, and prohibitions are appropriate pursuant to and in conformity with the
Texas Rules of Civil Procedure. Therefore, it is hereby ORDERED that:
I. All Confidential Information produced or exchanged in the course of this litigation shall
be used solely for the purpose of the preparation and trial of this litigation and other related
litigation against State Farm Lloyds (including its employees) or any third party adjusting
firm (including its employees) that adjusted claims arising out hailstorms and/or
windstorms in Texas with a date of loss in 2012, and for no other purpose. “Related
Litigation” means a first-party lawsuit in Texas by an insured against State Farm Lloyds
and its adjusters or adjusting companies that produced the Confidential Information for
damages to insured property arising out of hailstorms and/or windstorrns in Texas with a
date of loss in 2012. Confidential Information shall not be disclosed to any person except
in accordance with the terms of this Order.
EXHIBIT
2. “Confidential Information,” as used herein, means any information of any type which is
designated as “Confidential” by any of the supplying or receiving parties, including
information received from non-parties, whether it is a document, information contained in a
document, inforniation revealed during a deposition, information revealed in an
interrogatory answer or otherwise. At the sole discretion of the producing party, the
producing party may place on any documents that are subject to this Protective Order, bates
numbers and/or a legend to indicate the document is “Confidential,” subject to a Protective
Order and is produced under the specific cause number; however, the producing party shall
not label designated documents with a watermark.
3. The disclosure of Confidential Inforniation is restricted to Qualified Persons. “Qualified
Persons,” as used herein, means: the parties to pending litigation arising out of hailstorms
and/or windstorrns in Texas a date of loss in 2012; their respective counsel; counsel’s staff;
expert witnesses; outside service providers and consultants providing services related to
document and ESI processing, hosting, review, and production; the Court; other court
officials (including court reporters); the trier of fact pursuant to a sealing order; and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any other
person may be designated as a Qualified Person by order of this Court, after notice to all
parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential Information to
a person who is not a Qualified Person or counsel for the party designating party, and
consent shall not he unreasonably withheld. However, until said requesting party receives
written consent to further disclose the Confidential Information, the further disclosure is
hereby prohibited and shall not be made absent further order of this Court. If the
Page 2
designating party grants its consent, then the person granted consent shall become a
Qualified Person under this Order.
5. Lead counsel for each party shall provide a copy of this Order to any person to whom
Confidential Information is to be disclosed, including each party such counsel represents,
and shall advise such person of the scope and effect of the confidentiality provisions of this
Order and the possibility of punishment by contempt for violation thereof. Further, before
disclosing Confidential Information to any person, lead counsel for the party disclosing the
information shall obtain the written acknowledgment of that person binding him or her to
the terms of this Order. The written acknowledgment shall be in the form of “Exhibit A”
attached hereto. Lead counsel for the disclosing party shall retain the original written
acknowledgment, and furnish a copy of the signed written acknowledgment to counsel for
the party designating the information as confidential within ten (10) business days.
6. Information shall be designated as Confidential information within the meaning of this
Protective Order by following the protocol below that corresponds to the format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing Confidential
Information with the following legend: “Confidential & Proprietary/Produced
Pursuant to a Conf. Agree./Prot. Order” or “Confidential Proprietary & Trade
Secret/Produced Pursuant to a Cont Agree./Prot. Order,” but not so as to obscure
the content of the document.
b. For static image productions by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing Confidential
Information with the following legend: “Confidential & Proprietary/Produced
Page 3
Pursuant to a Conf. Agree./Prot. Order” or “Confidential Proprietary & Trade
Secret/Produced Pursuant to a Conf. Agree./Prot. Order,” but not so as to obscure
the content of the image.
c. For native format productions, by prominently labeling the delivery media for ESI
designated as Confidential Information as follows: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or “Confidential
Proprietary & Trade Secret/Produced Pursuant to a Conf. Agree./Prot. Order.” In
addition, at the election of the producing party, the electronic file may have
appended to the file’s name (immediately following its Bates identifier) the
following protective legend: “CONFiDENTIAL
SUBJ TO PROTECTI yE ORDER IN CA USE NO. 20/4-C VF-001 162-Di;
Noerni Rodriguez and Raul Rodriguez vs. State Farm Lloyds and Felipe Farius In
th
49
the District Court of Webb County, Texas, Judicial District” When any file so
designated is converted to a hard copy or static image for any purpose, the
document or image shall bear on each page a protective legend as described in
6.a. and 6.b. above. If a native file containing Confidential Information is used
during a deposition, meet and confer, trial, or is otherwise disclosed post-
production, the party introducing, referencing, or submitting the native file must
append the the file’s name (immediately following its Bates identifier) the
following protective legend: “CONFIDENTIAL
SU BJ_TO_PROTECTI V EORDER_IN_ CA USE NO. 2014-C VF-001 I 62-Di;
Noenii Rodriguez and Razil Rodriguez vs. State Farm Lloyds and Felipe Farias In
the District Court of Webb County, Texas, ‘49” Judicial District” if such legend
Page 4
does not already appear in the file name. Any party using a native tile containing
Confidential Information in a deposition, hearing, or at trial must indicate the
designation on the record so that it is reflected in the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may place on any
hard-copy documents that are subject to this Protective Order waterniarks or seals
to indicate the document is subject to a Protective Order and is produced under the
specific cause number.
7. Any party who inadvertently discloses Confidential Information during the discovery
process shall, immediately upon discovery of the inadvertent disclosure, give notice in
writing to the party or parties in possession of such information that the information is
designated as “Confidential” and shall request its immediate return. After receipt of such
notice, the parties shall treat the infonnation so designated as Confidential Information
under the terms of this Order, unless released of this duty by further order of this Court.
Additionally, any party who inadvertently discloses Confidential Information during the
discovery process shall, immediately upon discovery of the inadvertent disclosure, give
notice in writing to the party which produced and provided this information, the names and
addresses of the persons to whom it was disclosed and the date of the disclosure together
with a copy of the notice by which the inadvertently disclosing party requested the
immediate return of the documents.
8. Information previously produced during this litigation and not already marked as
Confidential Information shall be retroactively designated within thirty (30) days of entry
of this Order by providing written notice to the receiving parties of the Bates identifier or
other identifying characteristics for the Confidential Information.
Page 5
a. Within thirty (30) days of receipt of such notice, or such other time as may be
agreed upon by the parties, any parties receiving such notice shall return to the
designating party all undesignated copies of such information in their custody and
possession, in exchange for the production of properly designated information, or
alternatively (upon the agreement of the parties) shall (i) affix the legend to all
copies of such designated information in the party’s possession, custody, or control
consistent with the terms of this Protecti’e Order, and/or (ii) with respect to ESI,
take such reasonable steps as will relialy identifS’ the item(s) as having been
designated as Confidential Information.
b. Information that is unintentionally or inadvertently produced without being
designated as Confidential Information may be retroactively designated by the
producing party in the manner described in paragraph 7.a. above. If a retroactive
designation is provided to the receiving party in accordance with texas Rule of
Civil Procedure 193.3(d) the receiving pan:y must (i) make no further disclosure of
such designated information except as allowed under this Order; (ii) take reasonable
steps to notify any persons who were provided copies of such designated
information of the terms of this Order; and (iii) take reasonable steps to reclaim any
such designated information in the possess on of any person not permitted access to
such information under the terms of this Crder. No party shall be deemed to have
e prior to notification of any subsequent
violated this Order for any disclosures mac
1
designation.
9. Any party may request the party designating inforriation as “Confidential” to consent to re
designate confidential information as not confidential, which request shall not be rejected
Page 6
absent a good-faith determination by the designating party that the Confidential
Information is entitled to protection.
10. Deposition testimony is Confidential Information under the terms of this Order only if
counsel for a party advises the court reporter and opposing counsel of that designation at
the deposition, or by written designation to all parties and the court reporter within thirty
(30) business days after receiving the deposition transcript. All deposition transcripts shall
be considered confidential until thirty (30) days following the receipt of the deposition
transcript. The court reporter shall note on the record the designation of said information as
Confidential and shall separately transcribe those portions of the testimony and mark the
face of such portion of the transcript as “Confidential.” The parties may use Confidential
Information during any deposition, provided the witness is apprised of the terms of this
Order and executes the acknowledgment attached hereto as Exhibit “A.” The parties may
use Confidential In formation during a deposition only if the room is first cleared of all
persons except the court reporter, the witness being deposed, counsel for the parties and
any expert entitled to attend, and only if said witness executes the acknowledgement
attached as Exhibit “A.”
II. In the case of interrogatory answers, responses to request for production, and responses to
requests for admissions, the designation of Confidential Information will be made by
means of a statement in the answers or responses specifying that the answers or responses
or specific parts thereof are designated as Confidential Information. A producing party
shall place the following legend on each page of the interrogatory answers or responses to
requests for admission: “Contains Confidential Information.”
12. Confidential Information disclosed during a mee. and confer or otherwise exchanged in
Page 7
informal discovery, shall be protected pursuant to this Order if counsel for the disclosing
party advises the receiving party the information is Confidential Information. If the
Confidential Information disclosed during a meet and confer or otherwise exchanged in
informal discovery is in the fonii of hard-copy documents, static images, or native files,
that information shall be designated as Confidential Information pursuant to paragraphs 6
a., b., and/or c. depending on the format of the materials introduced.
13. At any time after the delivery of Confidential Documents, and after making a good-faith
effort to resolve any disputes regarding whether any designated materials constitute
Confidential Information, counsel of the party or parties receiving the Confidential
Documents may challenge the Confidential designation of all or any portion thereof by
providing written notice of the challenge to counsel for the party disclosing or producing
the Confidential Documents. The party or parties disclosing or producing the Confidential
Documents shall have twenty (20) days from the date of receipt of a written challenge to
file a motion for specific protection with regard to any Confidential Documents in dispute.
If the party or parties producing the Confidential Documents does not timely file a motion
for specific protection, then the Confidential Documents in dispute shall no longer be
subject to confidential treatment as provided in this Order.
14. If a timely motion for specific protection is filed, any disputed document will remain
confidential until a contrary determination is made by the Court and all such documents,
information or testimony shall continue to be treated as Confidential Information until this
Court makes a contrary decision regarding the status of the documents, information or
testimony. At any hearing to resolve a challenge of a Confidential designation, the party
designating the information as “Confidential” shall have the burden to establish that party’s
Page 8
right to protection as if this Order did not exist. A party’s failure to challenge the
designation of documents, information, or testimony as “Confidential” information does
not constitute an admission that the document, information or testimony is, in fact,
sensitive, confidential, or proprietary. No party waives its right to contend at trial or hearing
that such document, information or testimony is not sensitive, confidential, privileged or
proprietary, provided the party provides notice of intention to do so at least twenty (20)
days before such trial or hearing.
IS. Any papers filed with the Court in this action that make reference to Confidential
Information, or contain information derived therefrom, shall be considered Confidential
Information and shall be governed by the terms of this Order. These papers shall be filed
under seal and shall remain sealed with the District Clerk’s Office so long as the materials
retain their stratus as Confidential Information.
16. Pursuant to the agreement of the parties, no disclosure, production, or exchange of
information in this case shall constitute a waiver of any applicable attorney-client privilege
or of any applicable work product protection in this or any other federal or state
proceeding. This Protective Order applies to any information disclosed, exchanged,
produced, or discussed — whether intentionally or inadvertently — among the parties, their
counsel and/or any agents (such as vendors and experts) in the course of this litigation.
Upon learning of a production of privileged or work product protected information, the
producing party shall within ten (10) days give all counsel of record notice of the
production pursuant to Texas Rule of Civil Procedure 193.3(d). The receiving party must
promptly return, sequester or destroy the produced information and all copies and destroy
any notes that reproduce, copy, or otherwise disclose the substance of the privileged or
Page 9
_____
work product protected information.
17. Further, production pursuant to this Protective Order shall not be deemed a waiver of:
a. Any party’s right to object to any discovery request on any ground.
b. Any party’s right to seek an order compelling discovery with respect to any
discovery request.
c. Any party’s use and review of its own Confidential Information in its sole and
complete discretion.
d. The status of any material as a trade secret.
18. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
This Order shall remain in effect unless or until amended, altered, modified, or
vacated by the Court or by the written agreement of all parties to this action filed with
the Court, pursuant to Rule 11 of the Texas Rules of Civil Procedure.
IT IS SO ORDERED this day of , 2015.
JUDGE PRESIDING
Page 10
___________________________, ___________________________,
EXHIBIT “A”
CAUSE NO. 2014-CVF-001969-D4
LUIS MACHADO AND ROSA A. § IN THE DISTRICT COURT OF
MACHADO, §
§
Plaintiffs, §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
GILBERT SANTOS, §
§
Defendants. § 406TH JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
I, of in order to be provided access to
information designated as “Confidential” under the Protective Order entered in the 49th Judicial
District Court of Webb County, Texas (the “Court”) in C4USE NO. 2014-C VF-001162-D1;
Noe,ni Rodriguez and Raul Rodriguez vs. State Farm Lloydc and Felioe Faria.c In the District
Court of Webb County, Texas, Judicial District (the “Lawsuit”), represent and agree as
follows:
I. I have been provided with a copy of the Protective Order entered by the Court in the
Lawsuit, I have reviewed said copy and I am familiar with its terms.
2. With regard to any and all “Confidential” information to which I am given access in
connection with the Lawsuit, I agree to be bound by the provisions of the Protective
Order.
3. I consent to the exercise of jurisdiction over me by the Court with respect to the
Protective Order.
4. 1 agree that copies of this undertaking will be sent to counsel of record for all parties in
the Lawsuit.
DATED: SIGNATURE:
TAB 9
OF THE RECORD
Filed
3/3/2015 1 09 14 PM
Esther Degollado
District Clerk
Webb District
201 4-CVF-001 048-D1
CAUSE NO. 2014-CVF-001048-D1
ALMA PENA, § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER, §
Defendants. § 49TH JUDICIAL DISTRICT
PLAINTIFF’S REPLY TO DEFENDANTS’ RESPONSE AND OBJECTIONS TO
PLAINTIFF’S MOTION FOR ENTRY OF PROTECTIVE ORDER
AND
PLAINTIFF ’S RESPONSE TO DEFENDAN TS’ MOTION FOR ENTRY OF STATE
FARM’S PROPOSED PROTECTIV E ORDER
TO THE HONORABLE JUDGE OF THIS COURT:
COMES NOW, Alma Pena (“Plaintiff’), and files this Plaintiff’s Reply to Defendants’
Response and Objections to Plaintiffs Alotion for Entiy of Protective Order and Plaintiffs’
Response to Defendants’ Motion/br Entiy ofState Farm ‘s Proposed Protective Order. Plaintiff
respectfully asks the Court: (1) to deny the Defendants’ Motion for Entiy of State Farm’s
Proposed Protective Order filed by State Farm Lloyds (“State Farm” or “Defendant”); (2) to
grant Piaintiffs Motion for Entry ofProtective Order, and order Defendants to fully respond to
Plaintiffs discovery requests and enter Plaintiff’s proposed Protective Order, attached hereto as
Exhibit A. In support thereof and pursuant to the Texas Rules of Civil Procedure. Plaintiff
would respectfully show this Honorable Court the following:
I.
SUMMARY OF ARGUMENT
1. State Farm has filed a Response to Plaintiff’s IIotion for Protective Order and its own
Motion for Protective Order, wrongly contending that the Court should enter State Farnis
Protective Order to effectively protect it from Plaintiff’s discovery that seeks the production of
confidential and privileged information, including the production of trade secrets. All of
Defendant’s arguments and justifications for its proposed Protective Order are without merit
because they have already been adequately addressed by Plaintiff’s Proposed Protective Order.
State Farm has previously agreed to and litigated cases under the limitations, disclosures,
and protections contained in Plaintiffs Proposed Protective Order in substantially similar
litigation across this state; therefore, there is no valid reason for Defendants’ opposition to
Plaintiff’s proposed protective order, or for the Court to invest time, resources, and efforts
its own
hi die litigation of the previously agreed-on issues raised now by Defendant in
Order.
Motion and disputed hi State Fann’s Response to Plaintiff’s Proposed Protective
be
Accordingly, State Farm’s Motion should be denied and Plaintiff’s Protective Order should
entered in this case.
II.
INTRODUC TION & BACKGROUND
2. The causes of action made the basis of this lawsuit arise out of an insurance claim made
by Plaintiff for hail storm and/or windstorm damages to her real property located in Webb
County, Texas (“the Property”) sustained on or about June 7, 2013. Defendant failed to conduct
a reasonable investigation and failed to pay the frill proceeds of the Policy. As a result, Plaintiff
brought suit against all Defendants for damages resulting from the mishandling of Plaintiffs
claims for coverage and asserted causes of action against Defendant State Farm for breach of
Page 2
contract, breach of the common law duty of good faith and fair dealing, violations of the Texas
Insurance Code, common law fraud and conspiracy to commit fraud.
3. Plaintiff filed a Motion to Strike Dejbndants’ Objections to Plaintiff’s Written Discovery
Requests and Motion to Compel Discovery, (“Motion to Compel”), on January 22, 2015,
requesting an Order from the Court compelling State Farm to fully respond to Plaintiff’s
discovery requests.
4. Plaintiff contemporaneously filed Plaintifls tiotion for Entry qf Protective Order,
(“Motion for Protective Order”) requesting that the Court enter Plaintiff’s Proposed Protective
Order, which is consistent with protective orders previously entered and used for substantially
similar litigation involving Plaintiffs counsel and State Farm. Plaintiff has attached hereto as
Exhibit A the Proposed Protective Order, originally filed with Plaintiffs Motion for Protective
Order.
5. Plaintiff hereby incorporates by reference, as if fully asserted herein, the arguments and
authorities, including all attached exhibits, asserted in Plaintiffs Motion to Compel and
Plaintiffs Motion for Protective Order.
6. Plaintiff would show that Defendant’s Motion for Protection Order should be denied, as
Plaintiffs proposed protective order provides all parties, including State Fann Lloyds, adequate
protection from disclosure of trade secret and proprietary infonnation. Further, Plaintiffs
Motion to Compel should be granted accordingly and Defendants ordered to fully respond to
Plaintiffs discovery requests and to prodnce all responsive documents and information in their
possession, custody, or control, including responsive materials previously withheld subject to
such claims of privilege.
Page 3
III.
ARGUMENT AND AUTHORITIES
A. Plaintiffs Proposed Protective Order Wifi Adequately Protect Defendants.
7. Plaintiff asserts that her Proposed Protective Order will adequately address Defendant’s
concerns as to trade secrets and adequately protect Defendant.’ Plaintiffs Proposed Protective
Order is consistent with protective orders previously entered and used for substantially similar
litigation involving Plaintiffs counsel and State Farm. and will protect State Farm. with respect
to disclosure—in the course of discovery in this case—of documents and information that
Defendant claims constitute trade secrets or proprietary material.
S. State Farm argues that it needs the Court to enter its Protective Order to provide a shield
from parties seeking the discovery of confidential infornrntion and docnments. However,
Plaintiffs Proposed Protective Order contains numerous protections for the same type of
information Defendant refuses to produce because of its confidentiality. For example, Plaintiff’s
proposed Protective Order provides the following, among other protections:
All Confidential Information produced or exchanged in the course of this
litigation shall he used solely for the purpose of the preparation and trial of this
litigation and other related litigation against State Farm Lloyds (including its
employees) or any third party’ adjusting finn (including its employees) that
adjusted claims arising out hailstorms and/or windstorms in Texas with a date of
loss in 2013, and for no other purpose. “Related Litigation” means a first-party
lawsuit in Texas by an insured against State Farm Lloyds and its adjusters or
adjusting companies that produced the Confidential Information for damages to
insured property arising out of hailstorms and/or windstonns in Texas with a date
of loss in 2013. Confidential Information shall not he disclosed to any person
except in accordance with the terms of this Order.
2
The disclosure of Confidential Information is restricted to Qualified Persons.
3
See Plaintiffs’ “Exhibit A”
2
See Exhibit A. ¶1.
See Exhibit A, ¶3.
Page 4
Lead counsel for each patty shall provide a copy of this Order to any person to
whom Confidential Information is to be disclosed, including each party such
counsel represents. and shall advise such person of the scope and effect of the
confidentiality provisions of this Order and the possibility of punishment by
contempt for violation thereof Further, before disclosing Confidential Information
to any person, lead counsel for the party disclosing the information shall obtain the
written acknowledgment of that person binding him or her to the tenns of this
4
Order.
Any party who inadvertently discloses Confidential Information during the
discovery process shall, immediately upon discovery of the inadvertent
disclosure, give notice in writing to the party or parties in possession of such
information that the information is designated as “Confidential” and shall request
its immediate return. Afier receipt of such notice, the parties shall treat the
information so designated as Confidential Infonnation tinder the tenus of this
Order, unless released of this duty by further order of this Court.
Any papers filed with the Court in this action that make reference to Confidential
Information, or contain infonnation derived therefrom, shall he considered
Confidential Information and shall be governed by the terms of this Order. These
papers shall be filed under seal and shall remain sealed with the District Clerk’s
Office so long as the materials retain their status as Confidential Information.
6
9. Plaintiff’s protective order, as written, provides adequate protection of Defendants’ trade
secret and/or confidential information.As shown above, many of the issues raised in
Defendant’s motion are covered by provisions included in Plaintiff’s proposed protective order.
As such, Defendant’s Motion for Protective Order provides basically nothing new and should he
denied.
See Exhibit A, ¶5.
See Exhibit A, ¶7.
o Exhibit A. 95.
Page 5
B. Texas Law Authorizes Shared Discovery
10. Defendant complains that Plaintiffs Proposed Protective Order does not adequately
address handling of confidential information because it omits clear procedures for the destruction
or return of State Farm’s confidential information after the resolution of the matter. This
argument fails because Plaintiffs Proposed Protective Order not only effectively addresses the
handling of confidential information, as shown above, but also is adequate in light of Plaintiffs
need for shared discovery, which Defendants oppose. Plaintiff’s Proposed Protective Order
defines “Confidential Information” as any information of any type which is designated as
7 This would include all Confidential
“Confidential” by any of the supplying or receiving parties.
Infommtion.
11. Defendant also complains that Plaintiff’s Proposed Protective Order does not limit the
use of State Fan’s trade secret material to this litigation. However. Texas law is clear that
public policy favors shared discovery, which permits litigants to share othenvise confidential
documents produced in discovery by a common adversary. Shared discovery is not only allowed
and appropriate where there are several suits concerning the same subject matter, hut also should
he used in those situations because it is an effective means to insure full and fair disclosure and
make the discovery process more efficient.
8
12. In considering shared discovery, the trial court should balance the competing interests of
the parties and approve an order that protects trne trade secrets and confidential information from
State Farm’s competitors yet allows for proper use by other litigants involved in actions against
this repeat defendant. Under the doctrine of shared discovery, the products of discovery may be
See Exhibit A. ¶2
8
See Garcia i Feeples. 734 S.W.2d 343. 348-49 (Tex. 1987).
Page 6
disseminated to other litigants and persons who are potential litigants.
9 Here, Plaintiffs
attorneys are involved in litigation against insurance companies in several counties throughout
Texas. Sharing discovery is appropriate in this circumstance to ensure efficiency in the
discovery process, and it will benefit all parties.
13. Despite the cases’ clear endorsement of streamlined discovery, insurance companies,
including State Farm, nevertheless often vehemently protest and attempt to deny the applicability
of this doctrine. Acceptance of Defendants’ position would significantly limit the ability of
policyholders to efficiently and effectively prepare claims based on widespread misconduct such
as Defendants’. The danger posed by such widespread and largely uniform misconduct defeats
State Farm’s contention that the Court should ignore Garcia because it was a product liability
case.
14. The premise of shared discovery is fundamental to the efficient and honest functioning of
the judicial process. A presumption of openness applies to all court proceedings in this county,
criminal and civil, because “secrecy insulates the participants. masking impropriety, obscuring
incompetence, and concealing corruption.”° In addition to making discovery more efficient, the
shared discovery provision should make discovery more truthful and lead to full disclosure.
“Shared discovery is an effective means to insure full and fair disclosure.” It has been the
experience of Plaintiffs counsel, in other litigation against insurance companies, that the product
of discovery varies greatly in both completeness and scope. Shared discovery is designed to
remedy that variance and ensure that all litigants have access to the discoverable infornmtion.
Eli Lilly & Co. v. Marshall, 850 S.W.2d 155, 160 (Tex. 1993) (“[U]nder the doctrine of shared discovery, the
fruits
of discovery are available not only to the parties in a particular case but may be disseminated in turn to other
litigants and potential litigants.”).
See Brown i. lt7lliamson Tobacco Coip. i FTC, 710 F.2d 1165. 1179 (6th Ca. 1983).
°
Garcia, 734 SW, 2d at 347.
Page 7
1 5. In cc State Farm Lloyds illustrates that the above-described shared discovery propositions
are permissible. There. Defendant State Farm Lloyds sought a writ of mandamus commanding
the trial court to vacate a protective order that allowed documents obtained in the case to be used
12
in “related litigation against Defendants in which Plaintiffs’ counsel is an attorney of record.”
State Farm wanted a different protective order issued, just like here, which restricted the use and
disclosure of certain privileged documents to the specific case before that specific trial court.
The Court of Appeals concluded that thc trial court’s order adequately protected the Defendants
from the involuntary disclosure of its trade secrets, and therefore. the Court denied the petition
13
for writ of mandamus.
16. Defendants deride the Beaumont Court’s analysis in State Famni Lloyds as “conclusory”
and imply that the opinion carries no precedential weight because the Texas Supreme Court did
not review it, hut that attack is simply a smoke screen designed to conceal the fact that
Defendants have no contrary cases to cite.
17. Plaintiff’s proposed protective order here is substantially similar to the protective order
blessed by higher Texas courts. Further, the language of Plaintiffs Proposed Protective Order is
nearly identical to a protective order recently entered in a similar first patty case involving State
4 and State Farm was actively involved in crafting the language
Farm and Plaintiff’s counsel,’
contained in that protective order. In moving for entry of its own protective order before this
Court, State Farm protests that it lodged objections before other courts to the language about
which it now complains, but those objections have consistently been overruled because they are
12
In tv State Fami Lloyds. 2003 Tex. App. LEXIS 8115 (Tex. App—Beaumont Sept. 18, 2003).
Id
14
See .4lejos Ranñrez and Ofelia Rarni,ez v. State Farm Lloyds and Sylvia Garza, Cause No. C-3828-13-D: In the
206th District Court of Hidalgo County, Texas.
Page 8
unfounded. For these reasons and more, the Court should grant Plaintiffs 1otion for Entry of
Protective Order.
18. Plaintiffs Proposed Protective Order allows the use of shared discovery, with proper
limits and protections that should appease Defendants’ concern about the disclosure of
confidential information outside the 2013 hailstorm litigation.
1 The Court should enter
Plaintiff’s Proposed Protective Order, attached as Exhibit A. and. subject thereto, order
Defendants to produce all documents and information responsive to Plaintiffs discovery
requests that Defendants previously withheld from discovery based on the aforementioned
claims of confidentiality.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays this Honorable Court deny
Defendant’s Motion for Entiy of State Latin ‘s Proposed Protective Order and grant Plaintiff’s
Motion fOr Entiy of Protective Order. Plaintiff further requests that the Court grant and enter
Plaintiffs Proposed Protective Order, attached as Exhibit A, and grant Plaintiff any other and
further relief, either at law or in equity, to which Plaintiff may show herselfjustly entitled.
See Exhibit A, ¶1.
Page 9
Respectfully submitted.
MOSTYN LAw
!y7J Steve Aiostyn
J. Steve Mostyn
State Bar No. 00798389
j srndocketefile(imostvnlaw. corn
3810 West Alabarna Street
Houston, Texas 77027
(713) 714-0000 (Office)
(713) 714—111 1(Facsirnile)
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been forwarded to all
counsel of record on this 3rd day of March. 2015 in accordance with the Rules of Civil
Procedure.
/ç/ J. Steve Afosorn
J. Steve Mostyn
Page 10
CAtTSE NO. 2014-CVF-001048-Dl
ALMA PENA, § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER, §
Defendants. § 49TH JUDICIAL DISTRICT
PROTECTIVE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced by the parties and non-parties in this litigation, and that the following
provisions, limitations, and prohibitions are appropriate pursuant to and in confonnity with the
Texas Rules of Civil Procedure. Therefore, it is hereby ORDERED that:
1. All Confidential Information produced or exchanged in the course of this litigation shall
be used solely for the purpose of the preparation and trial of this litigation and other related
litigation against State Fann Lloyds (including its employees) or any third party adjusting
firm (including its employees) that adjusted claims arising out hailstorms and/or
windstonns in Texas with a date of loss in 2013, and for no other purpose. “Related
Litigation” means a first-party lawsuit in Texas by an insured against State Farm Lloyds
and its adjusters or adjusting companies that produced the Confidential Infonnation for
daniages to insured property arising out of hailstorms and/or windstonns in Texas with a
date of loss in 2013. Confidential Information shall not be disclosed to any person except
in accordance with the tenns of this Order.
“Confidential Information.” as any information of any type which is
rçrpag4epy of
the (NI1C) day
By
designated as “Confidential” by any of the supplying or receiving parties, including
infonnation received from non-parties, whether it is a document, infonnation contained in a
document, information revealed during a deposition. infonriation revealed in an
interrogatory answer or otherwise At the sole discretion of the producing party, the
producing party may place on anx’ documents that are subject to this Protective Order, bates
numbers and/or a legend to indicate the document is “Confidential,” subject to a Protective
Order and is produced under the specific cause number; however, the producing party shall
not label designated documents with a watemmrk.
3. The disclosure of Confidential Information is restricted to Qualified Persons. “Qualified
Persons.” as used herein, means: the parties to pending litigation arising out of hailstorms
and/or windstorms in Texas a date of loss in 2013; their respective counsel; counsel’s staff;
expert witnesses; outside service providers and consultants providing services related to
document and ESI processing. hosting. review, and production; the Court; other court
officials (including court reporters); the trier of fact pursuant to a sealing order; and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any other
person ma;’ be designated as a Qualified Person by order of this Court. afler notice to all
parties and a hearing.
to
4. Aiiy party may sen’e a written request for authority to disclose Confidential Infonnation
a person who is not a Qualified Person or counsel for the party designating party. and
consent shall not be unreasonably withheld. However, until said requesting party
receives
is
written consent to further disclose the Confidential Infonnation, the further disclosure
hereby prohibited and shall not he made absent further order of this Court. If the
designating party grants its consent, then the person granted consent shall become a
Page 2
Qualified Person under this Order.
5. Lead counsel for each party shall provide a copy of this Order to any person to whom
Confidential Infonuation is to be disclosed, including each party such counsel represents,
and shall advise such person of the scope and effect of the confidentiality provisions of this
Order and the possibility of punishment by contempt for violation thereof Further, before
disclosing Confidential Information to any person, lead counsel for the party disclosing the
information shall obtain the written acknowledgment of that person binding him or her to
the terms of this Order. The written acknowledgment shall he in the form of “Exhibit A”
attached hereto. Lead counsel for the disclosing party shall retain the original witten
acknowledgment, and furnish a copy of the signed written acknowledgment to counsel for
the party designating the information as confidential within ten (10) business days.
6. Infonnation shall be designated as Confidential Infonnation within the meaning of this
Protective Order by following the protocol below that corresponds to the format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing Confidential
Infonnation with the following legend: “Confidential & Proprietary/Produced
Pursuant to a Conf. Agree. /Prot. Order” or “Confidential Proprietary & Trade
Secret/Produced Pursuant to a Conf. Agree./Prot. Order,” but not so as to obscure
the content of the document.
b. For static image productions by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing Confidential
Information with the following legend: “Confidential & Proprietary/Produced
Pursuant to a ConE Agree./Prot. Order” or “Confidential Proprietary & Trade
Page 3
Secret/Produced Pursuant to a Conf. Agree./Prot. Order,” but not so as to obscure
the content of the image.
c. For native format productions, by prominently labeling the delivery media for ESI
designated as Confidential Infonuation as follows: “Confidential &
Proprietary/Produced Pursuant to a Couf. Agree./Prot. Order” or “Confidential
Proprietary & Trade Secret/Produced Pursuant to a Conf Agree./Prot. Order.” In
addition, at the election of the producing party, the electronic file may have
appended to the file’s name (immediately following its Bates identifier) the
following protective legend: “CONFIDENTIAL
5U TO PROTECTIVE ORDER IN Cause No. 2014-C JF-00]048-D1: Alma
Pena v. State Farm Lloyds and Becky Lan/er; in the 49th District Court, Webb
County, Texas.” When any tile so designated is converted to a hard copy or static
image for any purpose, the document or image shall bear on each page a
protective legend as described in 6.a. and 6.b. above. If a native file containing
Confidential Information is used during a deposition, meet and confer, trial, or is
otherwise disclosed post-production, the party introducing, referencing, or
submitting the native file must append the the tile’s name (immediately following
its Bates identifier) the following protective legend: “CONFIDENTIAL
SUBJ TO PROTECTIVE ORDER IN Cause No. 2014-CT F-00] 048-D]; A li;ia
Pena v. State Farm Lloyds and Becky Lan/er; in the 49th District Court. Webb
County, Texas,” if such legend does not already appear in the file name. Any
party using a native file containing Confidential Infbrmation in a deposition,
hearing, or at trial must indicate the designation on the record so that it is reflected
Page 4
in the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may place on any
hard-copy documents that are subject to this Protective Order watennarks or seals
to indicate the document is subject to a Protective Order and is produced under the
specific cause number.
7. Any party who inadvertently discloses Confidential Infönnation during the discovery
process shall, inunediately upon discovery of the inadvertent disclosure, give notice in
writing to the party or parties in possession of such infomuttion that the information is
designated as “Confidential” and shall request its inimediate return. After receipt of such
notice, the parties shall treat the infonnation so designated as Confidential Information
under the terms of this Order, unless released of this duty by further order of this Court.
Additionally, any party who inadvertently discloses Confidential Information during the
discovery process shall, immediately upon discovery of the inadvertent disclosure, give
and
notice in writing to the party which produced and provided this infonnation, the names
addresses of the persons to whom it was disclosed and the date of the disclosure together
with a copy’ of the notice by which the inadvertently disclosing party requested the
immediate return of the documents.
as
8. Information previously produced during this litigation and not already marked
Confidential Information shall be retroactively designated within thirty (30) days of entry
of this Order by providing written notice to the receiving parties of the Bates identifier or
other identifying characteristics for the Confidential Information.
a. Within thirty (30) days of receipt of such notice, or such other time as may he
agreed upon by the parties. any parties receiving such notice shall return to the
Page 5
designating party all undesignated copies of such information in their custody and
possession, in exchange for the production of properly designated infonnation, or
alternatively’ (upon the agreement of the parties) shall (i) affix the legend to all
copies of such designated infonnation in the party’s possession, custody, or control
consistent with the terms of this Protective Order, and/or (ii) with respect to ESI,
take such reasonable steps as will reliably identii the item(s) as having been
designated as Confidential Information.
b. Information that is unintentionally or inadvertently produced without being
designated as Confidential Information may be retroactively designated by the
producing party in the manner described in paragraph 7.a. above. If a retroactive
designation is provided to the receiving party in accordance with Texas Rule of
of
Civil Procedure 193.3(d) the receiving party must (i) make no further disclosure
such designated infbrmation except as allowed under this Order; (ii) take reasonable
steps to notify any persons who were provided copies of such designated
information of the terms of this Order; and (iii) take reasonable steps to reclaim any
to
such designated information in the possession of any person not permitted access
have
such information under the terms of this Order. No party shall be deemed to
violated this Order for any disclosures made prior to notification of any subsequent
designation.
to re
9. Any party may request the party designating information as “Confidential” to consent
rejected
designate confidential information as not confidential, which request shall not be
absent a good-faith determination by the designating party that the Confidential
Information is entitled to protection.
Page 6
10. Deposition testimony is Confidential Infonnation under the terms of this Order only if
counsel for a party advises the court reporter and opposing counsel of that designation at
the deposition, or by written designation to all parties and the court reporter within thirty
(30) htrsiness days after receiving the deposition transcript All deposition transcripts shall
be considered confidential until thirty (30) days following the receipt of the deposition
transcript. The court reporter shall note on the record the designation of said infonnation as
Confidential and shall separately transcribe those portions of the testimony and mark the
face of such portion of the transcript as “Confidential.” The parties may use Confidential
Information during any deposition, provided the witness is apprised of the tenns of this
Order and executes the acknowledgment attached hereto as Exhibit “A.” The parties may
use Confidential Information during a deposition only if the room is first cleared of all
persons except the court reporter, the witness being deposed. counsel for the parties and
any expert entitled to attend, and only if said witness executes the acknowledgement
attached as Exhibit “A.”
to
11. In the case of interrogatory answers, responses to request for production. and responses
requests for admissions, the designation of Confidential Information will be made by
means of a statement in the answers or responses speciing that the answers or responses
or specific parts thereof are designated as Confidential Information. A producing party
to
shall place the following legend on each page of the interrogatory answers or responses
requests for admission: “Contains Confidential Infonnation.”
in
12. Confidential Information disclosed during a meet and confer or othenvise exchanged
informal discovery, shall be protected pursuant to this Order if counsel for the disclosing
party advises the receiving party the information is Confidential Infonnation. If the
Page 7
Confidential Information disclosed during a meet and confer or otherwise exchanged in
infonnal discovery is in the form of hard-copy documents, static images, or native files,
that information shall be designated as Confidential Infonnation pursuant to paragraphs 6
a., b., and/or c. depending on the format of the materials introduced.
13. At any time after the delivery of Confidential Documents. and after making a good-faith
effort to resolve any disputes regarding whether any designated materials constitute
Confidential Information, counsel of the party or parties receiving the Confidential
Documents may challenge the Confidential designation of all or any portion thereof by
providing written notice of the challenge to counsel for the party disclosing or producing
the Confidential Documents. The party or parties disclosing or producing the Confidential
Documents shall have twenty (20) days from the date of receipt of a written challenge to
file a motion for specific protection with regard to any Confidential Documents in dispute.
If the party or parties producing the Confidential Documents does not timely file a motion
for specific protection, then the Confidential Documents in dispute shall no longer he
subject to confidential treatment as provided in this Order.
14. If a timely motion for specific protection is filed, any disputed document will remain
confidential until a contrary determination is made by the Court and all such documents,
information or testimony shall continue to be treated as Confidential Information until this
Court makes a contrary decision regarding the status of the documents, infonnation or
testimony. At any hearing to resolve a challenge of a Confidential designation, the party
designating the infonnation as “Confidential” shall have the burden to establish that party’s
right to protection as if this Order did not exist. A party’s thilure to challenge the
designation of documents, information, or testimony as “Confidential” information does
Page 8
not constitute an admission that the document, information or testimony is, in fact,
sensitive, confidential, or proprietary. No party waives its right to contend at trial or hearing
that such document. infonnation or testimony is not sensitive, confidential, privileged or
proprietary, provided the party provides notice of intention to do so at least twenty (20)
day’s before such trial or hearing.
15. Any papers filed with the Court in this action that make reference to Confidential
Infonnation, or contain information derived therefrom, shall be considered Confidential
Information and shall be governed by the terms of this Order. These papers shall be filed
tinder seal and shall remain sealed with the District Clerk’s Office so long as the materials
retain their status as Confidential Information.
16. Pursuant to the agreement of the parties, no disclosure, production, or exchange of
information in this case shall constitute a waiver of any applicable attorney-client privilege
or of any applicable work product protection in this or any other federal or state
proceeding. This Protective Order applies to any information disclosed, exchanged,
produced, or discussed — whether intentionally or inadvertently — among the parties, their
counsel and/or any agents (such as vendors and experts) in the course of this litigation.
Upon learning of a production of privileged or work product protected information, the
producing party shall within ten (10) days give all counsel of record notice of the
production pursuant to Texas Rule of Civil Procedure 193.3(d). The receiving party must
promptly return, sequester or destroy the produced infonnation and all copies and destroy
any notes that reproduce, copy, or otherwise disclose the substance of the privileged or
work product protected infonnation.
17. Further, production pursuant to this Protective Order shall not be deemed a waiver of
Page 9
a. Any party’s right to object to any discovery request on any ground.
h. Any party’s right to seek an order compelling discovery with respect to any
discovery request.
c. Any party’s use and review of its own Confidential Infonnation in its sole and
complete discretion.
d. The status of any material as a trade secret.
18. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
This Order shall remain in effect unless or until amended, altered, modified, or
vacated by the Court or by the written agreement of all parties to this action filed with
the Court, pursuant to Rule 11 of the Texas Rules of Civil Procedure.
IT IS SO ORDERED on this day of , 2015.
JUDGE PRESIDING
C of 9
th(a
y N
lq,Icertajy-’
the t
1 1ayof “ 2O(\
By
Page 10
___________
__________
___________________________.
EXHIBIT “A”
CAUSE NO. 2014-CVF-001048-D1
ALMA PENA, § IN THE DISTRICT COURT OF
Plaintiff, §
§
V. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER, §
Defendants. § 49TH JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
I, of,
in order to be provided access to
information designated as “Confidential” under the Protective Order entered in the 49th Judicial
District Court of Webb County, Texas (the “Court”) in Cause No. 2014-CVF-001048-Dl, 1 41ma
Penn v. State Farm Lloyds andBeckyLanier(the “Lawsuit”), represent and agree as follows:
1. I have been provided with a copy of the Protective Order entered by the Court in the
Lawsuit, I have reviewed said copy and I am familiar with its tenns.
2. With regard to any and all “Confidential” information to which I am given access in
connection with the Lawsuit, I agree to he bound by the provisions of the Protective
Order.
3. I consent to the exercise of jurisdiction over me by the Court with respect to the
Protective Order.
4. I agree that copies of this undertaking will be sent to counsel of record for all parties in
the Lawsuit.
DATED: SIGNATURE:
CAUSE NO. 201-I-CVF-001048-D1
AL1IA PENA, § IN THE DISTRICT COURT OF
Plaintiff, §
§
V. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER, §
Defendants. § 49THJUDICIAL DISTRICT
ORDER DENYING DEFENDANTS’ MOTION FOR ENTRY OF PROTECTIVE ORDER
Having considered Defendants Motion Jbr Entry of State Farm ‘s Proposed Protective
Order the response(s) thereto, and the arguments of counsel as allowed, the Court is of the opinion
that said Motion should be DENIED; it is therefore,
ORDE RED that De/ndants Motion for Entiy ofState Farm ‘s Proposed Protective Order
is hereby DENIED.
SIGNED this day of 2015.
JUDGE PRESIDING
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TAB 10
OF THE RECORD
C
NO. 2014CVF001048-Dl
ALMA PENA, § IN THE DISTRICT COURT
Plaintiff §
§
vs. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND BECKY §
LANIER, §
Defendants § 49TH JUDICIAL DISTRICT
%“JPROTECTIVE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced or exchanged in this litigation, and that the following provisions,
limitations, and prohibitions are appropriate pursuant to and in conformity with the Texas Rules
of Civil Procedure. Therefore, it is hereby ORDERED that:
1. All Confidential Information produced or exchanged in the course of this
litigation shall be used solely for the purpose of the preparation and trial of this
i- ekf& lq1,o,i
/
l&o4fc cth’oi litigation against State Farm Lloyds (including its employees) a—BvuIcy1ãItiei..-
‘Ii MtAr
(“Defendants”) or any third party adjusting firm (including its employees) that
ait’.y 1
cI%)5’.I+- 4
adjusted this claim and for no other purpose. Confidential Information, or
c-st tvt
extracts, summaries, or information derived from Confidential Information, shall
bj c 5tceJ
of s1kL not be disclosed to any person except in accordance with the terms of this Order.
-t kstrk Confidential Information may only be copied or reproduced as reasonably
bAt
necessary for use solely in this litigation.
“ •-ça5 2. “Confidential Information,” as used herein, means any information of any type
that is designated as “Confidential” andJor “Trade Secret” by any of the
producing or receiving parties, whether it is: a document, electronically stored
information (“ESI”), or other material; information contained in a document, ESI,
I
or other material; information revealed during a deposition; information revealed
in an interrogatory answer or written responses to discovery; information revealed
during a meet and confer, or otherwise in connection with formal or informal
discovery.
3. The disclosure of Confidential Information is restricted to Qualified Persons.
“Qualified Persons,” as used herein, means: the parties to this pending litigation
4#’ci “(1c-fr li t7°-” V (
0
‘‘jce / a— ‘Fi7i,,
.r6inuut-of a tiiei—uveut on or abouT June 2OliirWu1b-Gounty, Te*asi— ,
4
pt
their respective counsel; counsel’s staff; expert witnesses; outside service-
providers and consultants providing services related to document and ESI
processing, hosting, review, and production; the Court; other court officials
(including court reporters); the trier of fact pursuant to a sealing order; and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any
other person may be designated as a Qualified Person by order of this Court, after
notice to all parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential
Information to a person who is not a Qualified Person on counsel for the
designating party, and consent shall not be unreasonably withheld. However,
until said requesting party receives written consent to further disclose the
Confidential Information, the further disclosure is hereby prohibited and shall not
be made absent further order of this Court. If the designating party grants its
consent, then the person granted consent shall become a Qualified Person under
this Order.
5. Counsel for each party shall provide a copy of this Order to any person—other
2
than the Court, court officials, or the trier of fact—who will receive Confidential
Information in connection with this litigation, and shall advise such person of the
scope and effect of the provisions of this Order and the possibility of punishment
by contempt for violation thereof. Further, before disclosing Confidential
Information to any person other than the Court, court officials, or the trier of
fact, counsel for the party disclosing the information shall obtain the written
acknowledgment of that person binding him or her to the terms of this Order. The
written acknowledgment shall be in the form of Exhibit A attached hereto.
Counsel for the disclosing party shall retain the original written acknowledgment,
and furnish a copy of the signed written acknowledgment to the designating
party’s counsel within ten (10) business days.
6. Information shall be designated as Confidential Information within the meaning
of this Protective Order by following the protocol below that corresponds to the
format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf
Agree./Prot. Order,” but not so as to obscure the content of the document.
b. For static image productions, by marking the first Bates-stamped page of
the image and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
3
Proprietary/Produced Pursuant to a Conf Agree.fProt. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf
Agree.IProt. Order,” but not so as to obscure the content of the image.
c. For native file format productions, by prominently labeling the delivery
media for ESI designated as Confidential Information as follows:
“Confidential & Proprietary/Produced Pursuant to a Conf Agree./Prot.
Order” or “Confidential Proprietary & Trade Secret/Produced Pursuant to
a Conf. Agree./Prot. Order.” In addition, at the election of the producing
party, the electronic file may have appended to the file’s name
(immediately following its Bates identifier) the following protective
legend:
“CONFIDENTJAL-SUBJ_TO_PROTECTIVE_ORDER_1N_CAUSE_[insert #1.”
When any file so designated is converted to a hard-copy document or
static image for any purpose, the document or image shall bear on each
page a protective legend as described in 6.a. and 6.b. above. If a native
file containing Confidential Information is used during a deposition, meet
and confer, trial, or is otherwise disclosed post-production, the party
introducing, referencing, or submitting the native file must append to the
file’s name (immediately following its Bates identifier) the protective
legend:
“CONFIDENTL&L-SUBJ TO_PROTECTIVEORDER_IN_CAUSE_[insert #J” if
such legend does not already appear in the file name. Any party using a
native file containing Confidential Information in a deposition, hearing, or
at trial must indicate the designation on the record so that it is reflected in
4
the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may
place on any hard-copy documents that are subject to this Protective Order
watermarks or seals to indicate the document is subject to a Protective
Order and is produced under the specific cause number.
7. Information previously produced during this litigation and not already marked as
Confidential Information shall be retroactively designated within thirty (30) days
of entry of this Order by providing written notice to the receiving parties of the
Bates identifier or other identifying characteristics for the Confidential
Information.
a. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, and/or (ii) with respect to ESI, take such reasonable
steps as will reliably identify the item(s) as having been designated as
Confidential Information.
b. Information that is unintentionally or inadvertently produced without
being designated as Confidential Information may be retroactively
designated by the producing party in the manner describe in paragraph 7.a.
5
above. If a retroactive designation is provided to the receiving party in
accordance with Texas Rule of Civil Procedure 193.3(d) the receiving
party must (i) make no further disclosure of such designated information
except as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated information of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No party shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
8. If Confidential Information is inadvertently disclosed to a person who is not a
Qualified Person, the disclosing party shall immediately upon discovery of the
inadvertent disclosure, send a written demand to the non-Qualified Person
demanding the immediate return and/or destruction of the inadvertently disclosed
Confidential Information, all copies made, and all notes that reproduce, copy, or
otherwise contain information derived from Confidential Information. Further the
disclosing party shall send written notice to the designating party’s counsel
providing:
a. The names and addresses of the entity or individual to whom the
Confidential Information was inadvertently disclosed.
b. The date of the disclosure.
c. A copy of the notice and demand sent to the entity or individual that
inadvertently received the Confidential Information.
6
9. To the extent that the parties produce information received from non-parties that
the non-parties have designated as “confidential” such information shall be treated
as Confidential Information in accordance with the terms of this Protective Order.
a. With respect to any document, ESI, or other material that is produced or
disclosed by a non-party, any party may designate such infonnation as
Confidential Information within thirty (30) days of actual knowledge of
the production or disclosure, or such other time as may be agreed upon by
the parties.
b. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, andJor (ii) with respect to ESI, take such reasonable
steps as will reliably identify the item(s) as having been designated as
Confidential Information.
c. Upon notice of designation pursuant to this Paragraph, the parties also
shall: (i) make no further disclosure of such designated information except
as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated information of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
7
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No person shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
d. The parties shall serve a copy of this Order simultaneously with any
discovery request made to a non-party.
10. Deposition testimony is Confidential Information under the terms of this Order
only if counsel for a party advises the court reporter and opposing counsel of that
designation at the deposition, or by written designation to all parties and the court
reporter within thirty (30) business days after receiving the deposition transcript.
All deposition transcripts shall be considered Confidential Information until thirty
(30) days following the receipt of the deposition transcript. In the event testimony
is designated as Confidential Information, the court reporter shall note the
designation on the record, shall separately transcribe those portions of the
testimony, and shall mark the face of such portion of the transcript as
“Confidential Information.” The parties may use Confidential Information during
any deposition, provided:
a. The witness is apprised of the terms of this Order and executes the
acknowledgment attached hereto as Exhibit A.
b. The room is first cleared of all persons who are not Qualified Persons.
11. In the case of interrogatory answers, responses to request for production, and
responses to requests for admissions, the designation of Confidential Information
will be made by means of a statement in the answers or responses specifying that
8
the answers or responses or specific parts thereof are designated as Confidential
Information. A producing party shall place the following legend on each page of
interrogatory answers or responses to requests for admission: “Contains
Confidential Information.”
12. Confidential Information disclosed during a meet and confer or otherwise
exchanged in informal discovery, shall be protected pursuant to this Order if
counsel for the disclosing party advises the receiving party the information is
Confidential Information. If the Confidential Information disclosed during a meet
and confer or otherwise exchanged in informal discovery is in the form of hard
copy documents, static images, or native files, that information shall be
designated as Confidential Information pursuant to paragraphs 6 a., b., and/or c.
above, depending on the format of the materials introduced.
13. If a receiving party makes a good-faith determination that any materials
designated Confidential Information are not in fact “confidential” or “trade
secret,” the receiving party may request that a designating party rescind the
designation. Such requests shall not be rejected absent a good-faith determination
by the designating party that the Confidential Information is entitled to protection.
14. After making a good-faith effort to resolve any disputes regarding whether any
designated materials constitute Confidential Information, counsel of the party or
parties receiving the Confidential Information may challenge such designation of
all or any portion thereof by providing written notice of the challenge to the
designating party’s counsel. The designating party shall have thirty (30) days
from the date of receipt of a written challenge to file a motion for specific
9
protection with regard to any Confidential Information in dispute. If the party or
parties producing the Confidential Information does not timely file a motion for
specific protection, then the Confidential Infonnation in dispute shall no longer be
subject to confidential treatment as provided in this Order.
15. If a timely motion for specific protection is filed, any disputed Confidential
Information will remain subject to this Order until a contrary determination is
made by the Court. At any hearing the designating party shall have the burden to
establish that party’s right to protection as if this Order did not exist. A party’s
failure to challenge the Confidential Infonnation designation of any documents,
ESI, information, or testimony does not constitute an admission that the
document, ESI, information or testimony is, in fact, sensitive, confidential, or
proprietary. No party waives its right to contend at trial or hearing that such
document, ESI, information or testimony is not sensitive, confidential, privileged
or proprietary, provided the party provides notice of intention to do so at least
twenty (20) days before such trial or hearing.
16. Any papers filed with the Court in this action that make reference to Confidential
Information, or contain extracts, summaries, or information derived therefrom,
shall be considered Confidential Information and shall be governed by the terms
of this Order. These papers shall be filed under seal and shall remain sealed with
the District Clerk’s Office so long as the materials retain their status as
Confidential Information.
17. Pursuant to the agreement of the parties no disclosure, production, or exchange of
information in this case shall constitute a waiver of any applicable attorney-client
10
privilege or of any applicable work product protection in this or any other federal
or state proceeding. This Protective Order applies to any information disclosed,
exchanged, produced, or discussed — whether intentionally or inadvertently
among the parties, their counsel and/or any agents (such as vendors and experts)
in the course of this litigation. Upon learning of a production of privileged or
work product protected information, the producing party shall within ten (10)
days give all counsel of record notice of the production pursuant to Texas Rule of
Civil Procedure 193.3(d). The receiving party must promptly return, sequester or
destroy the produced information and all copies and destroy any notes that
reproduce, copy, or otherwise disclose the substance of the privileged or work
product protected information.
18. Further, production pursuant to this Protective Order shall not be deemed a waiver
of:
a. Any party’s right to object to any discovery requests on any ground.
b. Any party’s right to seek an order compelling discovery with respect to
any discovery request.
c, Any party’s use and review of its own Confidential Information in its sole
and complete discretion.
d. The status of any material as a trade secret.
19. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
c) yeAI iif
20. Within frtyfl )-ine-dys after the final resolution of this litigation, the
p1aintiffIs) shall return or destroy Confidential Information they received during
11
_____
this litigation. As to those materials that contain or reflect Confidential
Information, but that constitute or reflect the plaintifls) counsel’s own work
product, counsel for the plaintiff(s) are entitled to retain such work product in
their files in accordance with the provisions of this Protective Order, so long as
the work product is clearly marked to reflect that it contains information subject
to this Protective Order. Plaintiff’s counsel is entitled to retain pleadings,
affidavits, motions, briefs, other papers filed with the Court, deposition
transcripts, and the trial, record even if such materials contain Confidential
Information, so long as such materials are clearly marked to reflect that they
contain information subject to this Protective Order and are maintained in
accordance with the provisions of this Protective Order. Plaintiffs counsel shall
certify in writing compliance with the provision of this paragraph after forty-five
(45) business days after the fmal resolution of this litigation.
This Order shall remain in effect unless or until amended, altered, modified, or vacated
by the Court or by the written agreement of all parties to this action filed with the Court,
pursuant to the Texas Rules of Civil Procedure.
IT IS SO ORDERED this day of , 2015.
JUDGE PRESIDING
NO. 2014CVF001048-Dl
ALMA PENA, § IN THE DISTRICT COURT
Plaintiff §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND BECKY §
LAMER, §
Defendants § 49TH JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
l
4 frJ T,’ (0 . in order to be provided access to information
designated as Confidential Infonnation under the Protective Order entered in Cause No.
2014CVF001048-Dl represents and agrees as follows:
1. I have been provided with a copy of the Protective Order entered by the Court in
the above matter. I have reviewed said copy and I am familiar with its terms.
2. With regard to any and all Confidential Information to which I am given access in
connection with the above matter, I agree to be bound by the provisions of the
Protective Order.
3. I consent to the exercise of jurisdiction over me by the Court with respect to the
Protective Order.
4. I agree that copies of this undertalcing will be sent to counsel of record for all
parties in the above litigation.
DAIED: / C’192. I ‘E’r
—
(i
EXHIBIT A
By________
TAB 11
OF THE RECORD
Filed
3/25/2015 517.12 PM
Esther Degollado
District Clerk
Webb District
2014CVF001048 Dl
CAUSE NO. 2014-CVF-001048-D1
ALMA PENA, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
§
§
§ WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS §
AND BECKY LANIER, §
§
Defendants. § 49TH JUDICIAL DISTRICT
§
DEFENDANT STATE FARM’S MOTION TO STRIKE OR RECONSIDER
PLAINTIFF’S AMENDED PROTECTIVE ORDER REGARDING CONFIDENTIAL
INFORMATION AND MOTION FOR ENTRY OF PROTECTIVE ORDER
TO THE HONORABLE JUDGE OF THIS COURT:
The “Amended Protective Order” filed by Plaintiff on March 24, 2015 complies with
neither the agreement the parties made before the Court at the hearing on March 5, 0I5
regarding sharing, nor the Court’s order regarding the same. Plaintiffs “amendments” do not
limit the sharing of institutional State Farm discovery to “Related Litigation” as the Court
instructed, nor limit the sharing to claims arising from hail storms in June 2013 in Webb County,
Texas, handled by the Mostyn Firm. Defendant State Farm Lloyds (“State Farm”) respectfully
requests that the Court strike or reconsider’ the “Amended Protective Order” Plaintiff filed, and
enter State Farm’s Protective Order attached hereto as Exhibit A.
State Farm does not know at the time of preparing this motion whether at the time of filing the appropriate
procedural vehicle should be a motion to strike or a motion for reconsideration as the Court’s response to Plaintiff’s
actions are unknown at this time. State Farm therefore prepared the motion in the alternative to address the different
actions available to the Court.
STATE FARM’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE
OBJECTIONS AND MOTION TO CoMPEL PAGE 1 —
(
I.
INTRODUCTION
1. At the hearing held before the Court on March 5, 2015, Plaintiff’s counsel,
Andrew Taylor, represented that he was interested in sharing discovery in cases handled by the
Mostyn Firm. (Ex. B, March 5, 2015 Hearing Transcript, at 54:22 — 55:13.) In the discussion
regarding sharing, Gilberto Hinojosa, who also attended the hearing as counsel for Plaintiff,
specifically requested sharing within the Mostyn Firm for the cases in Laredo. (Ex. B, at 42:23-
44:11.) The Court reminded counsel that discovery in one case would not be official discovery
in another case, (Ex. B, at 62:2-6), and ruled that sharing would be limited to the Mostyn Firm
“not being able to share with even co-counsel in other cases.” (Ex. B, at 65:10-15.)
Nonetheless, Plaintiff’s “Amended Protective Order” does not reflect these limitations. Instead,
Plaintiff broadly defines “Related Litigation” as: “a first party lawsuit in TX, against State Farm,
by an insured of State Farm, for damages to insured property arising out of windlhail storms in
Texas.” (Ex. C, Plaintiff’s Amended Protective Order.)
2. Plaintiff’s “Amended Protective Order” does not limit the sharing of institutional
State Farm discovery to “Related Litigation” as the Court instructed or provide reasonable limits
to time and geography. The materials produced in this case will not be relevant to all windlhail
claims in Texas for all time. In order to protect State Farm’s Confidential Information, it is
necessary to limit sharing to wind/hail claims that arose in Webb County in June 2013. In
addition, note that it appears that Plaintiff’s counsel inadvertently failed to change the time limit
in the last sentence in paragraph 20 of the Amended Protective Order from 45 business days to
one year.
STATE FARM’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE
OBJEcTIoNS AND MOTION TO COMPEL PAGE 2 —
a
II,
ARGUMENT & AUTHORITIES
3. Plaintiff’s “Amended Protective Order” allows for the improper and widespread
distribution of every confidential and proprietary document in this case to all lawyers who file a
lawsuit against State Farm on a wind/hail claim in Texas with any date of loss, without regard to
the causes of action and factual allegations contained therein and the relationship to the present
litigation. Critically, paragraph 1 of State Farm’s Protective Order attached hereto (See Exhibit
A) limits the sharing to Institutional Materials that may have some relevance from case to case,
and appropriately carves out the case-specific materials that have no relevance across claims.
See In re National Lloyds Ins. Co., 2014 Tex, LEXIS 1108, 58 Tex. Sup. J. 64 (Oct. 31, 2014,
orig. proceeding) (holding discovery of claims information of unrelated third parties that is not
probative to other matters).
4. The Court’s March 5th Ruling reflected that Plaintiff has no right or need to use
State Farm’s proprietary and trade secret information for any purpose other than the fair
adjudication of this case. (See Ex. B., 62:2-6 and 65:10-15.) A protective order is easily vitiated
without specific procedures to enforce the handling of protected information. See In re Bass,
113 S.W.3d 735, 737 (Tex. 2003) (orig. proceeding) (factors relevant to determining whether a
trade secret exists include, among other things, the extent of the measures taken by the party to
guard the secrecy of the information). For these reasons, in accordance with the discussion of
counsel and ruling of the Court, the sharing of Confidential Information from this case in
“Related Litigation” should be limited to institutional materials relevant to wind/hail claims in
STATE FARM’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE
OBJECTIONS AND MOTIoN TO COMPEL PAGE 3 —
Webb County, Texas in June 2013, and conditioned upon the return or destruction of confidential
materials at the end of this litigation.
III.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants pray this Honorable Court
strike or reconsider the entry of Plaintiff’s Amended Protective Order and grant Defendants’
Motion for Entry of Protective Order regarding Confidential Information, enter the Order
attached hereto, and for any other and further relief, at law or in equity, to which they show
themselves justly entitled.
Respectfully submitted,
HUSEMAN & STEWART
615 N. Upper Broadway, Suite 2000
Corpus Christi, TX 78401-0781
(361) 883-3563; (361) 883-0210 (Fax)
VAN SEM
State Bar No. 1032350
TIFFANY DEBOLT
State Bar No. 24074118
Attorneys for Defendant State Farm Lloyds
& Becky Lanier
of r)gI) I cer4
the 4 day o 20
ESTHER DE LLAJO
.CI rko e itt tirts and
By
4)1tJ LTex:s
STATE FARM’S RESPONSE TO
OBJECTIONS AND MOTION TO Cot
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing was this 25th day of March 2015, served on the
following:
VIA E-SERVICE
Mr. J. Steve Mostyn
The Mostyn Law Firm
3810 West Alabama Street
Houston, Texas 77027
STATE FARM’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE
OBJECTIONS AND MOTION TO COMPEL PAGE 5
—
Filed
3/25/2015 5:17 12PM
Esther Degollado
District Clerk
Webb District
2014CVF001048 Dl
CAUSE NO. 2014-CVF-001048-l)I
ALMA PENÃ § IN THE DISTRICT COURT
Plaintiff §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER § TH
49
Defendants § .JUDICIAL DISTRICT
PROTECTIVE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced or exchanged in this litigation, and that the following provisions,
limitations, and prohibitions are appropriate pursuant to and in conformity with the Texas Rules
of Civil Procedure. Therefore, it is hereby ORDERED that:
1. All Confidential Information produced or exchanged in the course of this
litigation shall be used solely for the purpose of the preparation and trial of this
litigation or Related Litigation against State Farm Lloyds (including its
employees) and Becky Lanier (“Defendants”) or any third party adjusting firm
(including its employees) that adjusted this claim, and for no other purpose.
Subject to paragraphs I .a. and I .b. below, “Related Litigation,” as used herein
means a first-party lawsuit tiled in Texas by The Mostyn Law Firm arising out of
a claim for damages to residential, commercial, or personal property as a result of
a hailstorm that occurred in Webb County, Texas in June 2013. Confidential
Information, or extracts, summaries, or information derived from Confidential
Information, shall not be disclosed to any person except in accordance with the
terms of this Order. Confidential Informati or reproduced
as reasonably necessary for use solely it Litigation,
‘3py oft ri I i certify—
the CNli ?[dayo 2OL)
ESTHER DEGO LA 0
Clerk he Di ict o and
By______
subject to the limitations contained herein.
a. State Farm’s institutional materials that are not claim-speci1c or adjuster-
specific will be Bates-labeled MLFINSTO6I3WEBB0000000IPROD -
M LFINSTO6 I 3WEBB00000756PROD. Documents Bates-labeled
MLFINSTO6 I 3WEBB0000000I PROD - MLFINSTO6 I 3WFBB00000756PROD may
be shared among Qualified Persons in Related Litigation so long as The
Mostyn Law Firm is representing the Plaintiff(s) in the Related Litigation.
If The Mostyn Law Firm withdraws from any case qualifying as Related
Litigation or later associates another lawyer or law firm in the Related
Litigation, State Farm’s consent to the use of the documents Bates-labeled
MLFINSTO6 I 3WEBB0000000 I PROD - MLFINSTO6 I3WEBB00000756PROD in that
Related Litigation is automatically revoked. Documents Bates-labeled
MLFINSTO6I 3WEBB0000000I PROD - MLFINSTO6I3WEBB00000756PROD shall
not be considered to have been produced in and for Related Litigation as
“official discoveiy” unless they are responsive to a written discovery
request to which State Farm has not objected in that Related Litigation or
the Court has overruled State Farm’s objections and ordered production in
that Related Litigation. Documents Bates-labeled
MLFINSTO6 3WFBR0000000 PROD - MLFINSTO6J 3WEBB00000756PROD that
are not official discovery in a Related Litigation may not he used at
depositions, hearings or at trial in that Related Litigation unless ordered by
the Court or agreed to by State Farm.
h. Claim-specific, adjuster-specific, or other materials produced in this
litigation that are not Bates-labeled MLFINSTO6 I 3WEBB0000000I PROD -
MLFINSTO6I3WEBB00000756PROD may not be shared in Related Litigation,
but may only he shared among Qualified Persons in the lawsuit in which
the materials were produced. If a receiving party intends to use any
document Bates-labeled MLFINSTO6 I 3WEBI30000000 I PROD -
MLF1NSTO6IJWEBB000007S6PROD in Related Litigation, that party must
first obtain written consent of the producing party or leave of court.
2. ‘Confidential Information,” as used herein, means any information of any type
that is designated as ‘Confidential” and/or “Trade Secret” by any of the
producing or receiving parties, whether it is: a document, electronically stored
information (“ESI”). or other material; information contained in a document, ESI,
or other material; information revealed during a deposition; information revealed
in an interrogatory answer or written responses to discovery; information revealed
during a meet and confer, or otherwise in connection with formal or informal
discovery.
3. The disclosure of Confidential Information is restricted to Qualified Persons.
“Qualified Persons,” as used herein, means: the parties to this pending litigation
arising out of a weather event in June 2013 in Webb County. Texas; their
respective counsel; counsel’s staff; expert witnesses; outside service-providers
and consultants providing services related to document and ESI processing,
hosting, review, and production; the Court; other court officials (including court
reporters); the trier of fact pursuant to a sealing order; and any person so
designated pursuant to paragraph 4 herein, If this Court so elects, any other
3
person may be designated as a Qualified Person by order of this Court, after
notice to all parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential
Information to a person who is not a Qualified Person on counsel for the
designating party, and consent shall not be unreasonably withheld. However,
until said requesting party receives written consent to further disclose the
Confidential Information, the further disclosure is hereby prohibited and shall not
be made absent further order of this Court. If the designating party grants its
consent, then the person granted consent shall become a Qualified Person tinder
this Order.
5. Counsel for each party shall provide a copy of this Order to any person—other
than the Court, court officials, or the trier of fact—who will receive Confidential
Information in connection with this litigation, and shall advise such person of the
scope and effect of the provisions of this Order and the possibility of punishment
by contempt for violation thereof. Further, before disclosing Confidential
Information to any person other than the Court, court officials, or the trier of
fact, counsel for the party disclosing the information shall obtain the written
acknowledgment of that person binding him or her to the terms of this Order. The
written acknowledgment shall be in the form of Exhibit A attached hereto.
Counsel for the disclosing party shall retain the original written acknowledgment,
and furnish a copy of the signed written acknowledgment to the designating
party’s counsel within ten (10) business days.
6. Information shall be designated as Confidential Information within the meaning
4
of this Protective Order by following the protocol below that corresponds to the
format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing
Confidential information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf.
Agree./Prot. Order,” hut not so as to obscure the content of the document.
b. For static image productions, by marking the first Bates-stamped page of
the image and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf.
Agree./Prot. Order,” hut not so as to obscure the content of the image.
c. For native file format productions, by prominently labeling the delivery
media for ESI designated as Confidential information as follows:
“Confidential & Proprietary/Produced Pursuant to a Conf. Agree./Prot.
Order” or “Confidential Proprietary & Trade Secret/Produced Pursuant to
a Conf. Agree./Prot. Order.” In addition, at the election of the producing
party, the electronic file may have appended to the tile’s name
(immediately following its Bates identifier) the following protective
legend:
“CONFIDENTlAL-SUBJ_TQPROTECTlVEORDER_IN_CAUSE_2O 14-CVF-
001048-DI”. When any file so designated is converted to a hard-copy
5
document or static image for any purpose, the document or image shall
bear on each page a protective legend as described in 6.a. and 6.h. above.
If a native file containing Confidential Information is used during a
deposition, meet and confer, trial, or is otherwise disclosed post-
production, the party introducing, referencing, or submitting the native file
must append to the file’s name (immediately following its Bates identifier)
the protective legend:
“CONFIDENTIAL-SUBJ TO PROTECTIVE ORDER IN CAUSE 20 14-CVF-
001048-Dl”, if such legend does not already appear in the file name. Any
party using a native file containing Confidential Information in a
deposition, hearing, or at trial must indicate the designation on the record
so that it is reflected in the transcript of the proceedings.
d. Al the sole discretion of the producing party, the producing party may
place on any hard-copy documents that are subject to this Protective Order
watermarks or seals to indicate the document is subject to a Protective
Order and is produced under the specific cause number.
7. Information previously produced during this litigation and not already marked as
Conlidential Information shall he retroactively designated within thirty (30) days
of entry of this Order by providing written notice to the receiving parties of the
Bates identifier or other identifying characteristics for the Confidential
Information.
a. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
6
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, and/or (ii) with respect to ESI, take such reasonable
steps as will reliably identify the item(s) as having been designated as
Confidential Enformation.
b. Information that is unintentionally or inadvertently produced without
being designated as Confidential Information may he retroactively
designated by the producing party in the manner describe in paragraph 7.a.
above. If a retroactive designation is provided to the receiving party in
accordance with Texas Rule of Civil Procedure 193.3(d) the receiving
party must (i) make no further disclosure of such designated information
except as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated information of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No party shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
8. If Confidential Information is inadvertently disclosed to a person who is not a
Qualified Person, the disclosing party shall immediately upon discovery of the
inadvertent disclosure, send a written demand to the non-Qualified Person
7
demanding the immediate return and/or destruction of the inadvertently disclosed
Confidential Information, all copies made, and all notes that reproduce, copy. or
otherwise contain information derived from Confidential Information. Further the
disclosing party shall send written notice to the designating party’s counsel
providing:
a. The names and addresses of the entity or individual to whom the
Confidential Information was inadvertently disclosed.
b. The date of the disclosure.
c. A copy of the notice and demand sent to the entity or individual that
inadvertently received the Confidential Information.
9. To the extent that the parties produce information received from non-parties that
the non-parties have designated as “confidential” such information shall be treated
as ConfldentiaJ Information in accordance with the terms of this Protective Order.
a. With respect to any document, ESI, or other material that is produced or
disclosed by a non-party, any party may designate such information as
Confidential Information within thirty (30) clays of actual knowledge of
the production or disclosure, or such other time as may be agreed upon by
the parties.
b. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
8
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the tenis of this
Protective Order, and/or (ii) with respect to ESI, take such reasonable
steps as will reliably identify the item(s) as having been designated as
Confidential Information.
c. Upon notice of designation pursuant to this Paragraph, the parties also
shall: (i) make no further disclosure of such designated information except
as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated inft)rmation of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No person shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
d. The parties shall serve a copy of this Order simultaneously with any
discovery request made to a non-party.
10. Deposition testimony is Confidential Information under the terms of this Order
only if counsel for a party advises the court reporter and opposing counsel of that
designation at the deposition, or by written designation to all parties and the court
reporter within thirty (30) business days after receiving the deposition transcript.
All deposition transcripts shall be considered Confidential Information until thirty
(30) days following the receipt of the deposition transcript. In the event testimony
is designated as Confidential Information, the court reporter shall note the
9
designation on the record, shall separately transcribe those portions of the
testimony. and shall mark the face of such portion of the transcript as
“Confidential Information.” The parties may use Confidential Information during
any deposition, provided:
a. The witness is apprised of the terms of this Order and executes the
acknowledgment attached hereto as Exhibit A.
h. The room is first cleared of all persons who are not Qualified Persons.
11 In the case of interrogatory answers, responses to request for production. and
responses to requests for admissions, the designation of Confidential Information
will he made by means of a statement in the answers or responses specifying that
the answers or responses or specific parts thereof are designated as Confidential
Information. A producing party shall place the following legend on each page of
interrogatory answers or responses to requests lbr admission: “Contains
Confidential Information.”
12. Confidential Information disclosed during a meet and confer or otherwise
exchanged in informal discovery, shall be protected pursuant to this Order if
counsel for the disclosing party advises the receiving party the information is
Confidential In formation. If the Confidential Information disclosed during a meet
and confer or otherwise exchanged in informal discovery is in the form of hard
copy documents, static images, or native files, that information shall he
designated as Confidential Information pursuant to paragraphs 6 a., b., and/or c.
above, depending on the format of the materials introduced.
13. If a receiving party makes a good-faith determination that any materials
10
designated Confidential Information are not in fact “confidential” or trade
secret,’ the receiving party may request that a designating party rescind the
designation. Such requests shall not be rejected absent a good-faith determination
by the designating party that the Confidential Information is entitled to protection.
14. After making a good-faith effort to resolve any disputes regarding whether any
designated materials constitute Confidential Information, counsel of the party or
parties receiving the Confidential Intbrmation may challenge such designation of
all or any portion thereof by providing written notice of the challenge to the
designating party’s counsel. The designating party shall have thirty (30) days
from the date of receipt of a written challenge to file a motion for specific
protection with regard to any Confidential Information in dispute. If the party or
parties producing the Confidential Information does not timely file a motion for
specific protection, then the Confidential Information in dispute shall no longer he
subject to confidential treatment as provided in this Order.
15. If a timely motion for specific protection is filed, any disputed Confidential
Information will remain subject to this Order until a contrary determination is
made by the Court. Al any hearing the designating party shall have the burden to
establish that party’s right to protection as if this Order did not exist. A party’s
failure to challenge the Confidential Information designation of any documents,
ESI, information, or testimony does not constitute an admission that the
document, ESI. information or testimony is, in fact, sensitive, confidential, or
proprietary. No party waives its right to contend at trial or hearing that such
document, ESI, information or testimony is not sensitive, confidential, privileged
Ii
or proprietary, provided the party provides notice of intention to do so at least
twenty (20) days before such trial or hearing.
16. Any papers filed with the Court in this action that make reference to Contidential
Information, or contain extracts, summaries, or information derived therefrom,
shall be considered Confidential Information and shall be governed by the terms
of this Order. These papers shall be filed under seal and shall remain sealed with
the District Clerk’s Office so long as the materials retain their status as
Confidential Information.
17. Pursuant to the agreement of the parties no disclosure, production, or exchange of
information in this case shall constitute a waiver of any applicable attorney-client
privilege or of any applicable work product protection in this or any other federal
or state proceeding. This Protective Order applies to any information disclosed,
exchanged, produced, or discussed — whether intentionally or inadvertently —
among the parties. their counsel and/or any agents (such as vendors and experts)
in the course of this litigation. Upon learning of a production of privileged or
work product protected information, the producing party shall within ten (10)
days give all counsel of record notice of the production pursuant to Texas Rule of
Civil Procedure 193.3(d). The receiving party must promptly return, sequester or
destroy the produced information and all copies and destroy any notes that
reproduce, copy, or otherwise disclose the substance of the privileged or work
product protected information.
18. Further, production pursuant to this Protective Order shall not be deemed a waiver
of:
12
a. Any party’s right to object to any discovery requests on any ground.
h. Any party’s right to seek an order compelling discovery with respect to
any discovery request.
c. Any party’s use and review of its own Confidential Information in its sole
and complete discretion.
d. The status of any material as a trade secret.
19. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the lurisdiction of this Court for enforcement of this Order.
20. Within one (1) year after the final resolution of this litigation, the plaintiff(s) shall
return or destroy Confidential Information they received during this litigation. As
to those materials that contain or reflect Confidential Information, but that
constitute or reflect the plaintiff(s) counsel’s own work product, counsel for the
plaintiff(s) are entitled to retain such work product in their files in accordance
with the provisions of this Protective Order, so long as the work product is clearly
marked to reflect that it contains information subject to this Protective Order.
Plaintiff’s counsel is entitled to retain pleadings, affidavits, motions, briefs, other
papers filed with the Court, deposition transcripts, and the trial record even if such
materials contain Confidential Information, so long as such materials are clearly
marked to reflect that they contain information subject to this Protective Order
and are maintained in accordance with the provisions of this Protective Order.
Plaintiffs counsel shall certify in writing compliance with the provision of this
paragraph after one (1) year after the final resolution of this litigation.
This Order shall remain in effect unless or until amended, altered, modified, or vacated
13
_____
____ ____
by the Court or by the written agreement of all parties to this action filed with the Court.
pursuant to the Texas Rules of Civil Procedure.
IT IS SO ORDERED this day of
JUDGE PRESIDING
14
_____________________________________
CAUSE NO. 2014-CVF-001048-DI
ALMA PENA § IN THE DISTRICT COURT
Plaintiff §
§
V. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYI)S ANI) §
BECKY LANIER
4
T Il
Defendants JUDICIAL I)ISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
in order to be provided access to infbrmation
designated as Confidential Information under the Protective Order entered in Cause No. 20 14-
CVF-001048-Dl represents and agrees as follows:
1. I have been provided with a copy of the Protective Order entered by the Court in
the above matter. I have reviewed said copy and I am familiar with its terms.
2. With regard to any and all Confidential Information to which I am given access in
connection with the above matter, I agree to be bound by the provisions of the
Protective Order.
3. I consent to the exercise of jurisdiction over me by the Court with respect to the
Protective Order.
4. 1 agree that copies of this undertaking will be sent to counsel of record for all
parties in the above litigation.
DATED: SIGNATURE
hh
EXHIBIT A
Filed
3/25/2015 5:17 12PM
Esther Degollado
Dtrict Clerk
We& District
2014CVF00 048 Dl
1 REPORTER’S RECORD
VOLUME 1 OF 1 VOLUME
2 CAUSE NO, 2014-CVF-O01O48-D1
3 ALMA PENA, ) IN THE DISTRICT COURT
Plaintiff,
4
v. ) WEBB COUNTY, TEXAS
5
STATE FARM LLOYDS AND BECKY
6 LANIER,
Defendants. ) 49TH JUDICIAL DISTRICT
7
8
CAUSE NO. 2014-CVF-001162-D1
9
RAUL RODRIGUEZ AND NOEMI ) IN THE DISTRICT COURT
10 RODRIGUEZ,
Plaintiffs,
11 WEBB COUNTY, TEXAS
V.
12
STATE FARM LLOYDS AND FELIPE
13 FARIAS, ) 49TH JUDICIAL DISTRICT
Defendants.
14
15
16
17
18
PROCEEDINGS
19
20
21 On the 5th day of March, 2015, the following proceedings
red cause
22 came on to be heard in the above-entitled and numbe
held in
23 before the Honorable Jose A. Lopez, Judge presiding,
24 Laredo, Webb County, Texas;
25 Proceedings reported by machine shor
the
By
I
2
1 APPEARANCES
2 FOR PLAINTIFFS:
SBOT NO. 09701100
3 JUDGE GILBERTO HINOJOSA
LAW OFFICE OF GILBERTO HINOJOSA & ASSOCIATES, P.C.
4 622 E. Saint Charles St.
Brownsville, Texas 78520-5218
5 Phone: (956) 544-4218
6 SBOT NO. 24070723
MR. ANDREW TAYLOR
7 THE MOSTYN LAW FIRM
3810 West Alabama Street
8 Houston, Texas 77027
Phone: (713) 714-0000
9 Fax: (713) 714-1111
10 FOR DEFENDANT, STATE FARM:
SBOT NO. 10323500
11 MR. F. VAN HUSEMAN
SBOT NO. 24074118
12 MS. TIFFANY DEBOLT
HUSEMAN & STEWART, PLLC
13 615 N. Upper Broadway, Suite 2000
Corpus Christi Texas 78401
,
14 Phone: (361) 883-3563
Fax: (361) 883-0210
15
FOR DEFENDANT, STATE FARM:
16 SBOT NO. 21190600
MR. BRUCE J. WERSTAK, III
17 SAMES & WERSTAK, L.L.P.
TCB Financial Center
18 6721 McPherson Road, Suite 360
Laredo, Texas 78041
19 Phone: (956) 728-0011
Fax: (956) 727-3085
20
FOR DEFENDANT, STATE FARM:
21 SBOT NO. 24038746
MR. FELIX ARAMBULA, III
22 JONES, ANDREWS & ORTIZ, P.C.
10100 Reunion Place, Ste. 600
23 San Antonio, Texas 78216
Phone: (210) 344-3900
24 Fax: (210) 366-4301
25
CYNTHIA PEREZ LEt, CS
a—
3
1 A P P E A R A NCE S (continued)
2 FOR STATE FARM: (Pro Hac Vice)
MR. JONATHAN M. REDGRAVE
3 REDGRAVE, LLP
14555 Avion Parkway, Suite 275
4 Chantilly, Virginia 20151
Phone: (703) 592-1155
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CYNTHIA PEREZ LENZ, CSR
4
1 CHRONOLOGICAL INDEX
VOLUME 1 OF 1
2 PROCEEDINGS
3 MARCH 5, 2015
Pag Vol
4 Case called 5
5 Proceedings concluded 78
6 Court Reporter’s Certificate 79
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CYNTHIA PEREZ LENZ, CSR
5
1 PROCEEDINGS
2 THE COURT: Alma Pena versus State Farm
3 Lloyds.
4 MR. HINOJOSA: Gilberto Hinojosa and Andrew
5 Taylor for the plaintiffs, Your Honor.
6 THE COURT: Good morning. And you have
7 several motions. It seems that -- let’s see. I might miss
8 something. But let’s see if I did. A motion to compel by
9 defendants; defendant’s plea in abatement; plaintiff’s motion
10 for entry of protective order; plaintiff’s motion to compel
11 and plaintiff’s motion to strike. Anything else?
12 MR. HUSEMAN: Your Honor, if I might, I am Van
13 Huseman. Van’s my first name, sort of like the shirt, except
14 Vans --
15 THE COURT: Vans --
16 MR. HUSEMAN: -- is my first name.
17 THE COURT: All right.
18 MR. HUSEMAN: And I am here with all sorts of
19 able help here on behalf of State Farm, Your Honor.
20 THE COURT: Okay.
MR. HUSEFIAN: And what we’ve got basically,
21
--
22 we’re not going to pursue the abatement. Enough time has
23 passed where that’s sort of a dead issue.
24 THE COURT: Okay.
25 FIR. HUSEMAN: To getting the case resolved.
CYNTE-IIA PEREZ LENZ, CSR
6
1 THE COURT: All right, very well.
2 MR. HUSEMAN: So I think what the Court has is
3 basically countervailing opposing sort of symmetrical motions
4 on discovery and motions for protection.
5 THE COURT: Okay. Have you all conferred on
6 your discovery problems?
7 MR. HUSEMAN: We have, Your Honor.
8 THE COURT: All right.
9 MR. HUSEMAN: And not only that, but we can
10 give you a two-for-one package. You notice on your docket you
11 have another case involving basically the same cast of
12 characters.
13 THE COURT: State Farm Lloyds, Raul
14 Rodriguez --
15 MR. HUSEMAN: That’s right.
16 MR. TAYLOR: Same motions, same issues.
17 MR. HUSEMAN: And these are parallel --
18 THE COURT: You were here on that last time, I
19 think, on one of these.
20 MR. TAYLOR: It was on Pena, yes, Your Honor,
21 a couple of weeks ago.
22 MR. HUSEMAN: And the motion is going back and
23 forth. They’re essentially the same between the cases.
24 MR. WERSTAK: I was here as well , Judge.
THE COURT: Yeah, you were here on that. I
25
CYNTHIA PEREZ LENZ, CS?.
7
1 think it was you all -
2 MR. WERSTAK: We asked for a little more time
to set all the hearings on the same date so we could have
--
3
4 ThE COURT: Are these similar -- do you have
5 -- are there more of these -- this isn’t one of cases that was
6 on the MDL - -
7 MR. WERSTAK: You asked us that last time.
8 And - -
THE COURT: litigation. And you all had no
9 --
10 idea about that.
11 MR. TAYLOR: I think those are Farmers,
12 THE COURT: Those are Farmers.
13 MR. TAYLOR: Yes, Your Honor.
14 THE COURT: Okay. So then aside from the --
motion for protective
15 the competing motions to compel, on your
discovery issue as
16 order, I suspect that that deals with the
17 well?
18 MR. HUSEMAN: It does.
19 THE COURT: Okay.
MR. HINOJOSA: It’s just -- it’s a simple
20
order.
21 issue as to language in the protective
22 THE COURT: Okay.
23 MR. HINOJOSA: An issue of shared discovery.
long.
24 I don’t think the hearing should take that
25 MR. HUSEMAN: Not an hour.
CYNTHIA PEREZ LENZ, CSR
8
1 THE COURT: You want to be before that hour
2 people - that hour folks. The motion to strike, it deals with
3 the motion to abate, or what does that --
4 MR. TAYLOR: Compel.
5 THE COURT: Oh, the motion to compel
6 MR. HUSEMAN: These are mainly
7 discovery-based.
8 THE COURT: All right.
9 MR. HUSEFIAN: The issues are about what has to
10 be disclosed back and forth and the form in which it’s done.
11 THE COURT: So do you -- well, give me an
12 estimate. 20 minutes, 25 minutes?
13 MR. HINOJOSA: That will work.
MR. TAYLOR: I think that will handle -- I
14
15 mean, once we --
16 THE COURT: 20 to 30 then. I’ll put you down
17 20 to 30.
18 MR. HUSEMAN: With the representation, Judge,
19 you know lawyers lie about that.
THE COURT: No, I and the worst -- see,
20 --
21 that’s why I bought this now. And actually I didn’t buy it.
I didn’t buy it. Somebody
am going to tell you the truth.
--
22
23 an anonymous person left it here. And I never told this story,
it on the
24 but, about a year, year and a half ago somebody left
a
25 bench. And I suspect that it was either a staff member or
CYNTHIA PEREZ LENZ, CSR
9
1 lawyer that got tired of me saying, okay, I am going to give
2 you 20 minutes, and an hour later we’re still at the hearing.
3 So, I -- I’d rather not know who left it here, but I use it a
4 little bit more now to remind myself.
5 MR. HUSEMAN: At least they didn’t give you an
6 hourglass with sand in it.
7 THE COURT: Thank you all. I’ll get back to
8 you.
9 MR. ARAMBULA: Thank you, Your Honor.
10 THE COURT: So I’m going to -- that’s going to
11 be those two cases, right?
12 MR. TAYLOR: Yes, Your Honor.
13 MR. HINOJOSA: We can do them at the same
14 time.
15 THE COURT: At the same time.
16 MR. HUSEMAN: They’re the same issues, same
17 parties, basically.
18 THE COURT: Thank you. All right.
19 (Case recessed while other unrelated matters
20 were called.)
21 THE COURT: Okay. 20, 30 minutes.
22 Alma Pena, State Farm Lloyds. Raul Rodriguez,
23 State Farm Lloyds. 2014-CVF-1048; 2014-CVF-1162.
24 MR. HINOJOSA: Gilberto Hinojosa and Andrew
25 Taylor, on behalf of the plaintiffs.
CYNTHIA PEREZ LENZ, CSR
10
1 THE COURT: Oh, wait a minute. I think I
2 borrowed your book.
3 MR. ARAMBULA: Yes, Your Honor. May I
4 approach, Your Honor?
5 THE COURT: Yes, of course.
6 MR. HINOJOSA: Your Honor, on this one, I
7 think probably it would be more efficient for us if the Court
8 would please -- if the Court could handle their motion to
9 compel first, and then the protective order, because I think
10 the motion to compel is relatively simple, I think. And then
11 the -- the issue of the protective order is a little bit more
12 complicated.
13 MR. HUSEMAN: For again - - perhaps, for us to
14 introduce ourselves. Cyndy, my name is Van Huseman
15 representing State Farm.
16 THE COURT: Let me do -- yeah, let’s do that.
ody on
17 Let’s get everybody on the defense side, and then everyb
18 the plaintiff’s side.
MR. REDGRAVE: Jonathan Redgrave. I am
19
20 appearing Pro Hac Vice for State Farm.
21 THE COURT: Okay.
22 MR. WERSTAK: Bruce Werstak for State Farm as
23 well, Judge.
24 MR. ARAMBULA: Felix Arambula, III also for
25 State Farm, Your Honor.
CYNTHIA PEREZ LENZ, CSR
11
1 THE COURT: Thank you.
2 MS. DEBOLT: Tiffany DeBolt for State Farm.
3 THE COURT: Thank you.
4 MR. HUSEIIAN: 1ay I explain. He knows all
5 about computers and that type of stuff more than we do. She’s
6 the one that filed the answer.
7 THE COURT: Did you say DeBolt?
8 MS. DEBOLT: D-E-BO-L-T.
9 THE COURT: Okay.
10 MR. HUSErIAN: She’s done the redactions, done
11 the physical discovery. And these guys over here are the ones
12 who are supposed to advise me not to say anything stupid.
13 But, well, I think, Your Honor, that --
14 that --
15 THE COURT: And let me get those - - you
16 already made your appearance earlier, but just --
17 MR. HINOJOSA: Gilberto Hinojosa and Andrew
18 Taylor, Your Honor.
19 MR. HUSEMAN: Judge 1-linojosa may be right on
20 this. I think going straight into discovery, the extent of the
21 discovery, the scope of it is probably a good place to start on
22 it.
23 THE COURT: All right.
24 MR. HUSEMAN: And basically there is a case
25 which Felix -- he still has my copies on this.
CYNTHIA PEREZ LENZ, CSR
12
1 MR. ARAMBULA: May I approach, Your Honor?
2 THE COURT: Please. And approach liberally,
3 please.
4 MR. ARAMBULA: Yes, sir.
5 MR. HUSEMAN: Which Felix was leading to,
6 which gives you a good overall view of what you need to do on
7 this case. And what this case, which is from the end of
n
8 October of last year, Texas Supreme Court’s per curiam opinio
9 on the case very similar to this one. And the bottom line --
10 THE COURT: Before we start, tell me what --
11 what this case is.
12 MR. HtJSEMAN: Okay.
THE COURT: And then you can that way I
13
--
14 can --
15 MR. HUSEMAN: Sure.
16 THE COURT: -- determine whether it’s similar
17 or not.
18 MR. HUSEMAN: Both of these cases are what
, one of
19 would be considered fairly small wind hail type claims
e; did not think
20 which State Farm figured did not have to examin
21 it went over the deductible. And the other one, under 20,
well, it’s plaintiff’s oriented so they’re both
under the
--
22 --
23 very small wind --
THE COURT: So one of them they are both
24
- -
25 wind hail cases, or claims. One of them State Farm claims was
CYNTHIA PERHZ LENZ, CSR
13
1 under deductible. And the other one was what?
2 MR. HUSEMAN: Well, we met several thousand
3 dollars owed possibly in damages. And they had estimated their
4 estimate was about 20000.
5 THE COURT: So then there is a provision in
6 your -- in your -- in the insurance provision that - - that
7 whenever there is a distinction between what you all believe
8 value is, that you’re able to then file this lawsuit with
9 regard to it, or is it just what --
10 MR. HUSEMAN: Well, you’re getting into where
11 the nut of this issue is. The issue, to put it simply, is they
12 claim we didn’t pay enough for the claim.
13 THE COURT: Oh, so you ended up paying for it?
14 MR. HUSEMAN: No. No, these are still in
15 dispute.
16 THE COURT: All right.
17 MR. HUSEMAN: They’re in dispute.
18 THE COURT: Didn’t pay anything.
19 MR. HINOJOSA: If I may, Your Honor.
THE COURT: Hold on. I’ll get I’ll get --
20 --
21 I think. Let me -- I’ll get to you in a minute. Let me just
22 hear Mr. Vance [sic] -- Vance is not -- yeah, Vance is your
23 first name.
MR. HUSEMAN: Van is my first name. Yeah.
24
25 THE COURT; Tell me your last name again.
CYNTHIA PEREZ LENZ, CSR
14
1 MR. HUSEMAN: Huseman. Huseman.
2 THE COURT: Huseman. AH right.
3 MR. HUSEMAN: Yeah. And what these are
4 about - -
5 THE COURT: I think there’s a Huseman --
6 represented Huseman out of Houston. You’re not -- but that’s
7
8 MR. HUSEMAN: That was a criminal.
9 THE COURT: I think that’s Housernan, not
10 Huseman. Go ahead.
11 MR. HUSEMAN: No, Judge. This is basically a
12 question about how much is owed, if anything, on it.
13 THE COURT: That’s it.
14 MR. HUSEIIAN: And that’s it. It’s a contract
15 claim --
16 THE COURT: So maybe it wasn’t paid, but you
17 all offered to pay a certain amount of money. They didn’t take
18 it because it wasn’t enough.
19 MR. HUSEMAN: Some --
20 THE COURT: Their inspectors said it was going
21 to take a lot more money.
22 MR. HUSEMAN: Should --
23 MR. HINOJOSA: It’s a breach of contract and
24 insurance, closed quote, claim, Your Honor.
25 MR. HUSEMAN: Yes, that’s right.
CYNTHIA PEREZ LENZ, CSR
15
1 MR. HINOJOSA: Under the policy. Were
2 homeowners. And our homeowner’s policy gives us the right to
3 collect certain amounts of money based upon what the damage
4 was. And --
5 THE COURT: Okay.
6 MR. HINOJOSA: -- they paid a certain amount,
7 but it wasn’t sufficient. So we filed a lawsuit under the
8 insurance code and --
9 THE COURT: Did you say they paid, again, you
10 said?
11 MR. HINOJOSA: On some of them. On one of
12 them they denied the claim, you know.
13 THE COURT: All right. Thank you.
14 MR. HUSEMAN: Here -- to answer it in a
15 graphic sense. These are the competing estimates on the two
16 cases. As I was talking about, the deductible exceeds what the
17 -- was owed under the policy on these. These are the
18 plaintiff’s gross claims. These are what their hired expert
19 says might be owed. And the point on this is that these are
20 not huge lawsuits, under anybody’s estimation. And that is
21 germane to what we’re talking about here, because the purpose,
22 at least in my perception, what the Court needs to do is to
23 dispose of what the argument is, and the discovery - -
24 THE COURT: That’s a huge disparity between
25 the values.
CYNTHIA PEREZ LENZ, CSR
16
1 MR. HUSEMAN: There is. But in terms of
2 absolute dollars, what they are asking for us to do, is
3 basically to spend more and respond in discovery that is
4 totally in issue. That’s -- that’s in a nutshell. And as I
5 started to tell you a minute ago, there is a Texas Supreme
6 Court case that addresses this.
7 THE COURT: All right, thank you.
8 MR. HUSEMAN: On this - -
9 THE COURT: This is the one that you handed to
10 me. National Lloyds.
11 MR. HUSEMAN: That’s right. October 31 of
12 last year, which basically -- and this is a per curiam opinion
13 involving all -- claims very similar to these, in which they
mus to
14 basically direct the trial court, in this case, by manda
are
15 focus it on the claims that are involved, the issues that
16 involved.
17 THE COURT: All right.
18 MR. HUSEMAN: There is another case which is
19 contained in our response. And I believe this is in Alma
of federal
20 Pena’s case, which is an even more recent case out
other
21 court in McAllen involving the lawyers who are on the
side of this involving our client and this case. And it
22
23 involves another wind hail case. It’s about as close as you’re
24 going to get, in terms of it. And in that, Judge Alvarez does
sought.
25 a 27, 28-page analysis of discovery that was being
CYNTHIA PEREZ LENZ, CSR
17
1 THE COURT: The Fourth Court?
2 MR HUSEMAN: Pardon?
3 THE COURT: Did you say Judge Alvarez?
4 MR. HUSEMAN: En federal - -
5 MR. HINOJOSA: Federal judge in McAllen.
6 THE COURT: I’m sorry.
7 MR. HUSEMAN: In McAllen. And she goes
8 through these claims back and forth.
9 THE COURT: A district court judge, right?
MR. HUSEMAN: That’s right, Your Honor, And
10
11 she goes through and does an exhaustive analysis of what’s
12 discoverable and what isn’t. And it involves --
THE COURT: Why why do you do the -- why do
13 --
to
14 you give us the federal judge’s opinion, and why not stick
15 what the state court said?
16 MR. HUSEMAN: All right. First of all, Your
rds for
17 Honor, the Texas Supreme Court said that the standa
essentially
18 discovery between the federal and state rules are
19 the same. They are -- it is a case that says exactly that.
20 Secondly, Judge Alvarez went through the
in
claims that are being made here, and were being made
--
21
22 THE COURT: But it’s not a Fifth Circuit case?
23 MR. HUSEMAN: It’s not.
24 THE COURT: It’s just a district court judge’s
25 opinion.
CYNTHIA PEREZ LENZ, CSR
18
1 MR. HUSEMAN: It’s not. And bear with me just
2 for a second. Let me sort of round out my thought on this.
3 She goes through the exact issues that you’re confronted with
4 on these competing motions; discusses each one of them; talks
5 about what the law is; what the relevancy is; the importance of
6 it. So I’m not suggesting to you that you need to defer to a
7 federal judge, or that they have any sort of a whip hand over
8 you or anything like that. What I am suggesting is that the
9 reasoning that she used, the analysis which is exhaustive on
10 this, and be instructed in regard to the parties’ positions
11 here.
12 MR. HINOJOSA: If I may, Your Honor, the
13 more relevant - -
14 THE COURT: Give --
15 MR. HINOJOSA: Okay, I’m sorry.
16 THE COURT: I’d rather not go back and forth
17 yet until I kind of finish my thought as to what their position
18 is, And I’ll --
19 MR. HINOJOSA: Sure.
20 THE COURT: I’ll get back to you. Just, I
21 know that it’s kind of -- I know, sitting there before -- or
22 standing there before as you all used to, I did used to get a
23 little bit frustrated with that type of process. But now that
24 I am sitting on this side, it kind of helps me finish my
25 thought. And then I -- I definitely don’t --
CYNTHIA PEREZ LENZ, CSR
19
1 MR. HINOJOSA: I thought he was turning it
2 over to me. That’s why I --
3 THE COURT: All right, thank you.
4 MR. HUSEMAN: I will tell you.
5 THE COURT: But please don’t forget your
6 thought, you know.
7 MR. HUSEMAN: Hold that thought.
8 ThE COURT: All right.
9 MR. HUSEMAN: Okay. And perhaps we can show
10 what we have produced.
11 THE COURT: So, okay. So far -- so far we
12 have the Supreme Court case that basically says that in -- in
13 these uninsured -- I’m sorry, on these underpaid insurance
14 claims --
15 MR. HUSEMAN: Right.
16 THE COURT: -- or non-payment of insurance
17 claims - -
18 MR. HUSEMAN: You need to stick to the facts
19 in this case.
20 THE COURT: The holding -- well, there’s three
21 things that it says. And I am not sure they’re -- they are
22 conjunctive or disjunctive, because it doesn’t really give you
23 that here in the initial holding. And I haven’t read the rest
24 of the body of the case. But basically it says in the case
25 involving underpayment of insurance claims, the appellate court
CYNTHIA PEREZ LENZ, CSR
20
1 concludes that the trial court abused discretion in ordering
2 defendants to produce evidence related to insurance claims
3 other than plaintiff.
4 MR. HUSEMAN: Right.
5 THE COURT: And I dont even know what you all
6 are complaining about. You’re just giving me the rules first.
7 MR. HUSEMAN: Right.
8 THE COURT: You havent given me the issue.
9 MR. HUSEMAN: I gave you the -- we will
10 discuss the details.
11 THE COURT: So now I am going to assume that
12 the issue deals with the fact that plaintiffs have requested
13 information on other claims. And I am going to assume that
14 that in fact is the case because you’re giving me this case.
15 But in any event, so that’s one thing. And then it says -- and
16 it has a semicolon and says, Two, defendant’s overpayment,
17 underpayment, or proper payment of claims and unrelated third
18 parties was not probative. And then a semicolon. Three,
19 because the information plaintiff sought was not reasonably
20 calculated to lead to discovery of admissible evidence.
21 So, to me, I need to read this as what is it
22 -- is it conjunctive or disjunctive? Is it if any one of these
23 fit, you’re out, or do all three of them have to fit to be out?
24 So, what I’m -- I read it, and I think as well, I think all
25 three of them have to be -- have to fit in order to be out.
CYNTHIA PEREZ LENZ, CSR
21
1 MR. HUSEMAN: M’hum.
2 THE COURT: That’s the way I sort of see it
3 from here. I haven’t read the rest of the case. You tell me
4 what it means.
5 MR. HUSEMAN: Yeah. And the lesson that we
6 learned from it is that you are directed, or the trial court is
7 directed generally, to focus the discovery on the dispute that
8 they have before them.
9 THE COURT: Right. That’s one of them. But
10 it also has three other, or two other --
11 MR. HUSEMAN: And none of those are
12 inconsistent with that principle that I am aware of.
13 THE COURT: Well, number three says the
14 information plaintiff sought was not reasonably calculated to
15 lead to discovery of admissible evidence.
16 MR. HUSEMAN: That’s right. That’s right.
17 THE COURT: So was that the holding, or that’s
18 not really a rule that they are coming up with?
19 MR. HUSEMAN: It’s certainly a ruling in that
20 case, that, regard to the claim going out of the pasture beyond
21 where the fight was to something that discovery should not --
22 THE COURT: And tell me where -- tell me in
23 the body of the case where it actually discusses -- cause you
24 said something about that they had actually addressed the issue
25 that when there is a case of -- the value of the case actually
CYNTHIA PEREZ LENZ, CSR
22
1 has a lot to do with this holding, and it does not.
2 MR. HUSEMAN: It does. It does. And in the
3 context of the supreme court case, whether or not State Farm
4 underpaid; overpaid; didn’t pay somebody else is
5 THE COURT: Do you know what type of case this
6 was? Was it just a simple breach of contract case?
7 MR. HUSEMAN: No. I think it also had the
8 extra contractual issues in it as well, the National Lloyds
9 case with holding --
10 THE COURT: So the same issues they have here.
11 MR. HUSEMAN: Exactly. This is -- this is
12 very close to Whitehorse (phonetic) case, the other one I
13 referred to, being the same plaintiff’s lawyers, the same exact
14 defendant, is probably even more of a Whitehorse --
15 THE COURT: The one with the district court
16 from McAllen?
17 MR. HUSEMAN: That’s right. This is even
18 closer to the facts to this one.
19 And if I might, Your Honor, something that
20 might be useful to the Court, to see what, for example, what we
21 have produced, to the other side. This was not a situation
22 where we’re saying, You don’t get anything. The other side,
23 except for the matters that are redacted, the other lawyers
24 have gotten the same things that I’ve gotten on this. We have
25 our -- have our production here. This might be something the
CYNTHIA PEREZ LENZ, CSR
23
1 Court wants to see.
2 Your Honor, if I might --
3 THE COURT: Yes, sir.
4 MR. HUSEMAN: For your reference, in case you
5 have some questions on this, this is what we have produced in
6 each of these cases.
7 THE COURT: Oh.
8 MR. HUSEFIAN: See what we’ve done.
9 And Jonathan, do you have your computer?
10 We can show you also --
11 THE COURT: Tell me what is it that -- first
12 -- let’s start with what --
13 MR. HINOJOSA: You need to hear --
14 THE COURT: What are they seeking?
15 MR. HUSEMAN: They want us to - -
16 THE COURT: Hold on a second. Let me do this.
17 Let me do this. Since you all are giving me what you think the
18 rules apply, I am going to tell them -- I am going to give them
19 a shot at that. And then I am going to come back to you all so
20 you can tell me specifically -- well, actually, I am going to
are
21 go to them now, so that they can tell me what exactly they
why you
22 seeking and why, and then you will be able to tell me
23 believe that you shouldn’t have to produce it. Go ahead.
MR. HINOJOSA: Thank you, Your Honor. And
24
25 I’ll have Mr. Taylor jump in to clarify more.
CYNTHIA PEREZ LENZ, CSR
24
1 The case - - the Supreme Court case that was
2 handed to you by counsel for State Farm deals with this: In
3 that case, someone had a claim. And they asked, through
4 discovery, for claims by a whole bunch of other people that
5 hadn’t filed involving the same storm, right. And -- and the
6 Supreme Court said, without more, you can’t do that. There is
7 no reason for you to get all these other claims that were
8 filed, What does it have to do with your particular claim.
9 That’s all that case is about. So, and the Supreme Court made
10 a decision that you have to have something else in order to
11 show your entitlement to claim files of other individuals.
12 We’re not anywhere near that on this case, in
13 terms of what we’re requesting. What we’re requesting are --
14 are policies and procedures of State Farm that will help us
to
15 analyze how they took a look at this claim; what they did
tly
16 properly adjust the claim; whether or not there’s inheren
alue
17 within their process a system that allows them to underv
18 claims, and -- and allows us to show that this is not only a
and
19 breach of a contract, but a violation of the insurance code
20 its intentional willful conduct as well. So we’re not asking
21 for other people’s claims.
22 THE COURT: But you had -- that last part, you
23 have that in your pleadings as a cause of action?
24 MR. HINOJOSA: That’s part of our claim, Your
25 Honor. That’s part of our claim.
CYNTHIA PEREZ LENZ, CSR
25
1 Now, so this case is absolutely totally
2 irrelevant to the particular issue in this particular -- in
3 this case.
4 Secondly, Your Honor - -
5 THE COURT: But wait, before you move on, why
6 is it completely irrelevant?
7 MR. HINOJOSA: Because we’re not asking for --
8 the settlement - -
9 THE COURT: This guy -- these people here on
10 the Lloyds case, the supreme court case, ask for - -
11 MR. HINOJOSA: Other claim files.
12 THE COURT: -- other claims filed by third
13 parties against them, and then also asks for -- I want to find
14 out what this particular adjustor -- these particular
15 adjustors, what they have been doing on these type of cases
16 over the last six years.
17 MR. HINOJOSA: Oh, no. We’re not asking for
18 that. We’re asking for training materials, you know, policies
19 and procedures and how they handle these claims and so forth.
20 And let me -- I mean, I didn’t interrupt you.
21 MR. HUSEMAN: I haven’t said a word.
22 MR. HINOJOSA: He’s got that thing --
23 THE COURT: Can you put it down, please?
24 MR. HUSEMAN: Okay.
25 MR. HINOJOSA: Your Honor, and he cites to you
CYNTHIA PEREZ LENZ, CSR
26
1 a case from federal district court Judge Alvarez that says that
2 the stuff that we’re asking for in this particular case is not
3 stuff that we should get. The other side of that coin, Your
4 Honor, is there is an MDL court in McAllen -- in Edinburg right
5 now that’s handling thousands and thousands of hailstorm cases.
6 THE COURT: The same thing that’s going on
7 here. That’s why I said, “Is this the MDL case”?
8 MR. HINOJOSA: And that MDL judge said that
9 the materials that we’re requesting are relevant. And in fact,
10 the court put together - -
11 THE COURT: Is a three-judge panel there or
12 four-judge panel?
13 MR. HINOJOSA: No, it’s -- the supreme -- the
14 MDL panel appointed Judge Rose Reyna to be the MDL judge for
15 all the hailstorm cases in the Rio Grande valley. And what --
state
16 what happened in that particular case is that judge, that
17 district judge, determined that discovery of these issues was
18 absolutely relevant to these hailstorm cases. Even though
19 they’re -- you have -- you’re entitled to do discovery on
20 individual claims, you can also do discovery on policies and
21 procedures that will illuminate how they are handling these
22 particular claims.
23 In fact, Your Honor, the court developed
that
24 master discovery that included all the identical questions
on
25 are part of the issue in this motion to compel and the issue
CYNTHIA PEREZ LENZ, CSR
27
1 the protective order, and allowed the parties, both the
2 plaintiffs and the defendants to propose -- propound discovery
3 among -- along the lines of that master discovery. So, even
4 though there is a state federal district judge that says you
5 can’t do it, there is a state district judge that says you can,
6 and that state district judge’s decision on whether or not you
7 can proceed forward on this kind of discovery has not been
8 appealed. That issue is not on appeal. There is issues on
9 appeal with respect to whether or not the terms of the
10 protective order are legal ; but whether or not we can propound
11 this discovery, that’s not -- that’s not -- not been questioned
12 by anyone.
13 You know, we sat down -- I mean, I am involved
14 in the Multi District Litigation since day one. In fact, I
15 wrote the brief to the MDL panel on whether or not there should
16 be an MDL created. And, in fact, we recommended that if there
17 was going to be an MDL, that to avoid forum shopping, they
18 should appoint a district judge from Hidalgo County, and in
19 fact they did.
20 But -- but what -- what has happened here,
21 Your Honor, is that that share -- that discovery that we have
22 propounded in that particular case, has allowed us to resolve
23 probably two-thirds of all the cases that are pending all -- in
24 the multi-district litigation.
25 THE COURT: All right. Let’s move on then.
CYNTHIA PEREZ LENZ, CSR
28
1 So then you were saying -- so far you tell me that the things
2 that you’re requesting are -- are training materials, policy
3 and procedures, things of that nature.
4 MR. TAYLOR: Let me chime in. There’s
5 actually a couple more. And I’ve actually -- I’ve had
6 conversations with Ms. DeBolt. I’ve sent letters to
7 Mr. Huseman’s firm looking for training materials pertain to
8 wind and hail claims in Texas for five years; looking for the
9 personnel files for the adjustors who were involved in handling
10 the claim, and I can explain why we think that’s relevant.
11 THE COURT: The what files?
12 MR. TAYLOR: The personnel files for the
13 adjustors.
14 THE COURT: Okay.
15 MR. TAYLOR: The underwriting files where the
16 claims at issue. An example is one of the claims -- I think
17 it’s Pena -- there is a prior claim that was a lot of property
18 -- I don’t even have that prior claim file, even though I’ve
19 asked for it, So the underwriting file for these two policies.
20 And then any documents that are related to my client’s --
21 non-privileged documents related to my clients, the property,
22 the address, the policy, or the claim number. So I’ve narrowed
23 it down to basically those five categories.
24 THE COURT: From all -- from all that I am
25 hearing you say on these five categories, I don’t see anything
CYNTHIA PEREZ LENZ, CSR
29
1 in here that talks about third parties.
2 MR. HUSEMAN: Okay. May -- you want to hear
3 from me on that, Your Honor?
4 THE COURT: Yes.
5 MR. HUSEMAN: Okay.
6 THE COURT: And I am not even sure why we
7 wasted our time on that issue if in fact they are not
8 requesting that from you.
9 MR. HUSEMAN: Well --
10 THE COURT: Cause you said that they were - -
11 you seem to be alluding to the fact that they were requesting
12 similar information that was requested on that particular case.
13 MR. HUSEMAN: I did, Your Honor. And if I may
14 begin within this, and rather than characterize what they told
15 you versus what I am telling you, let’s just go to what --
16 THE COURT: You know what I usually start
17 with? I usually just start with your discovery requests. And
18 then, you know, we will just -- instead of doing what I -- and
19 when I make the mistake of starting with what you all’s rules
20 or believe what the rule is on particular issues, it normally
21 takes a lot longer. But in any event, I’ll let you respond to
22 that. And then I am going to get to the questions.
23 MR. HUSEMAN: All right. If you look, for
24 example, having been told that they have nothing about other
25 people besides themselves involving this, Interrogatory Number
CYNTHIA PEREZ LENZ, CSR
30
1 Seven to my client says --
2 THE COURT: Wait a minute. Are you objecting
3 to everything?
4 MR. HUSEMAN: No, sir.
5 THE COURT: Okay.
6 MR. HUSEMAN: No, sir. We’ve produced in
7 our -- now we’ve also produced - -
8 THE COURT: No, but with regard to the - - the
9 motion to compel now.
10 MR. HUSEMAN: No, not everything, obviously.
11 We’re willing to, for example --
12 THE COURT: The motion to compel , I want to
13 get to something that’s a little bit more concise. Your motion
14 to compel, what numbers are you compelling?
15 MS. DEBOLT: Your Honor, if I may, here’s a
16 copy of their motion to compel and our response.
17 THE COURT: Okay, good. Thank you.
18 MR. TAYLOR: Motion to compel, Request For
19 Production Number Two, produce the underwriting files and
20 documents relating to the underwriting of all insurance
21 policies --
22 THE COURT: Let me follow along here.
23 Request for production, is that what it was?
24 MR. TAYLOR: Yes, Judge, to State Farm.
25 THE COURT: Number Two, right?
CYNTHIA PEREZ LENZ, CSR
31
1 MR. TAYLOR: Right.
2 THE COURT: All license and certifications
3 identified in response to Interrogatory Number 3, is that what
4 it is? No.
5 MR. TAYLOR: No. That’s the one of
6 defendants. Keep -- it’s probably -- here’s State Farm.
7 THE COURT: Produce underwriter files?
8 MR. TAYLOR: Yeah, Number Two.
9 THE COURT: Number Two.
10 MR. TAYLOR: And I don’t see --
11 THE COURT: So that one was one that they --
12 MR. HUSEMAN: We’ve done.
13 MR. TAYLOR: They objected to that as being
14 overly broad, burdensome, vague --
15 THE COURT: Oh, but you may have produced it,
16 but they set your objection on motion to compel . Are you
17 sticking to your objection on that?
18 MR. HUSEMAN: As so far as what we have not
19 produced, yes, sir.
20 THE COURT: So then we have to address it,
21 MR. HUSErIAN: We’ve produced --
22 THE COURT: You make it sound like if we don’t
23 have to address it when you say we’ve produced it. No, we have
24 to address the objection unless you’re withdrawing it.
25 MR. HUSEMAN: Maybe I didn’t make myself
CYNTHIA PEREZ LENZ, CSR
32
1 clear, Your Honor. We have responded with the bulk of what
2 they wanted.
3 THE COURT: Okay. So you’re not withdrawing
4 your objection?
5 MR. HUSEMAN: No.
6 THE COURT: Okay. So we have to address
7 Number Two.
8 MR. HUSEMAN: And --
9 THE COURT: Go ahead.
10 Wait, wait. I’m sorry.
11 MR. HUSEMAN: You had asked me a minute ago
12 about what discovery they had to fit within the supreme court
13 case. And I was getting ready to read some of their discovery
14 to us about that, Your Honor.
15 THE COURT: Well, we’re going to go down the
16 numbers. We’ll just go down the numbers.
17 MR. TAYLOR: We’re not compelling that --
18 THE COURT: Let’s go down the number. I think
19 we’re not making much progress. And we’re 17 minutes into
20 our conversation - -
21 MS. DEBOLT: Your Honor, I think it’s worth
22 mentioning which case we’re arguing, because the motions to
23 compel are different for both cases. So I think we need to
24 make clear. Are we talking about the Raul Rodriguez case?
25 MR. TAYLOR: Right. That’s the one the judge
CYNTHIA PEREZ LENZ, CSR
33
1 has in front of him.
2 MS. DEBOLT: Okay.
3 THE COURT: 2O14-CVF-1162, sorry, for the
4 record.
5 MR. HUSEMAN: M’hum,
6 THE COURT: That’s Request For Production
7 Number Two. Okay, so Request For Production Number Two. And
8 their response is here. Is that correct, Ms. Dupont? Du- --
9 MR. HUSEMAN: DeBolt.
10 MS. DEBOLT: DeBolt.
11 THE COURT: DeBolt. Well, how hard is that?
12 That’s not hard at all. Okay. So, your response is here,
13 right?
14 MS. DEBOLT: Yes.
15 MR. TAYLOR: Your objections.
16 MS. DEBOLT: They were in an exhibit to his
17 motion, yes, Your Honor.
18 THE COURT: Here it is. Response. And then,
19 let me see if there is an objection. There is an objection.
20 Okay. So, let me read -- go ahead, Mr. Taylor.
21 MR. TAYLOR: So, you know, I need the
22 underwriting file because I’d like to -- at least before I put
23 my clients up for deposition know about the condition of the
24 property, at least what’s the information State Farm has on the
25 condition of the property. They have produced some documents,
CYNTHIA PEREZ LENZ, CSR
34
1 which apparently they say could be the underwriting file. But
2 as long as they’re standing behind these objections, I don’t
3 feel comfortable with that.
4 THE COURT: Okay. Let’s talk about your
5 objections. You’re saying it’s not relevant?
6 MS. DEBOLT: It’s not relevant. They haven’t
7 explained why they need it; what the relevance is of --
8 THE COURT: Isn’t it the other way around?
9 You have to explain why it’s not relevant.
10 MS. DEBOLT: It’s irrelevant to their case;
11 it’s not relevant to the correct claim.
12 THE COURT: The underwriting file?
13 MR. HUSEMAN: Right. Whether or not we paid
14 too much or too little or whatever --
15 THE COURT: On their claim?
16 FIR. HUSEMAN: Right. It has nothing to do
17 with that.
18 MR. HINOJOSA: No.
19 MR. HUSEMAN: As to how the policy was
20 originally sold. Their claims of that we didn’t pay enough.
21 That’s all --
22 THE COURT: But, no, they also say that --
23 that there is a cause of action for -- tell me again what that
24 is.
25 MR. TAYLOR: Bad faith, insurance code
CYNTHIA PEREZ LENZ, CSR
35
I violations.
2 MS. DEBOLT: All related to the claim.
3 THE COURT: Right. But they don’t have to
4 start with what you all agree to do?
5 MR. HUSETIAN: All of their extra contractual
6 claims are things that arise after the loss, not before. And
7 what -- how we underwrote their claim, if there is anything
8 that we didn’t give them, I am not sure. There’s a lot in
9 there that we didn’t give them that has nothing to do with how
10 we handled the claim.
11 THE COURT: How do -- do they just take your
12 word for it?
13 MR. HUSEMAN: No. The underwriting file is
14 State Farm deciding whether or not to write the policy in the
15 first place. There is no issue on it that I can see on this
16 that gets submitted to the jury. Not even close. It’s simply
17 a fishing expedition trying to find something perhaps for
18 another case. And while I am on that subject --
19 THE COURT: But why would they - - why would
20 anybody be in -- why would anything be in there for another
21 case?
22 FIR. HUSEMAN: Well, why would there be
23 anything for this case either?
24 THE COURT: Well, because it dealt with the
25 underwriting of this particular property.
CYNTHIA PEREZ LENZ, CSR
36
1 MR. HUSEMAN: Which bears not at all on any
2 issues that they are making claims on.
3 MR. HINOJOSA: That’s not true, Your Honor.
4 MR. HUSEMAN: At all.
5 FIR. HINOJOSA: They haven’t -- they do
6 inspections of the house. The way they make a determination of
7 how -- what to value, how much to charge, they do a complete
8 inspection of the house. They send an inspector to the house,
9 Your Honor. And so the condition of the house is at the
10 time --
11 THE COURT: And that’s in the underwriting
12 file?
13 MR. HINOJOSA: That’s in the underwriting
14 file, Your Honor.
15 MR. TAYLOR: Judge, you know --
16 THE COURT: All right.
17 MR. TAYLOR: I’ve tried one of these cases,
18 and I’ve been a part of trials for these State Farm cases.
19 Inevitably you’ve already seen it. This is a small case.
20 They’re going to say that my clients didn’t take cake of their
21 house; this is a crappy house in Laredo. And it’s going to be
22 based on the condition of -- that are listed in the
23 underwriting files. I want to know now what is going to be
24 there before - -
25 THE COURT: Oh, in other words -- in other
CYNTHIA PEREZ LENZ, CSR
37
1 words, if they -- part of the reason of why they may be paying
2 so little because there was possibly replacement cost value is
3 because it was worth little?
4 MR. TAYLOR: Yes.
5 MR. HINOJOSA: Yes.
6 THE COURT: So, there may be some information
7 in the file when it was originally written that indicates what
8 they thought that the house condition was.
9 MR. TAYLOR: Right. The condition of the
10 file. I want --
11 THE COURT: All right. Anything else?
12 MR. HUSEMAN: And we have no problem with
13 that.
14 THE COURT: Your objection then is -- with
15 regard to relevance is -- is overruled. I am not sure how much
16 the problem would be, because you don’t maintain a physical
17 file. Whatever it is. Electronic file or physical file, as
18 long as you call it an underwriting file. That’s the problem
19 is you don’t know what’s an underwriting file.
20 MR. HUSEMAN: No.
21 THE COURT: You don’t know what that is?
22 MR. HUSEMAN: We do have -- we do have some
23 things which could be considered underwriting files that we
24 have given to them in paper and electronically.
25 THE COURT: Is that -- is that possible that
CYNTHIA PEREZ LENZ, CSR
38
1 the insurance company doesn’t know what an underwriting file
2 is, what you mean by that?
3 MR. HINOJOSA: I would have a really hard time
4 accepting that, Your Honor. I mean -
5 THE COURT: I think you know what an
6 underwriting file is, whatever you all -- however you define it
7 -- not you, but your client.
8 MR. HUSEMAN: Yeah.
9 THE COURT: If it’s a -- if it’s a file
10 that’s -- if it’s -- what -- however we -- however people
11 define underwriting file. You didn’t define it under your
12 discovery rules.
13 MR. HUSEMAN: And I think that’s what we gave
14 them --
15 MR. TAYLOR: In terms of -- I mean, it’s an
16 insurance term.
17 THE COURT: I think it is. And so the way you
18 all -- your client defines underwriting file, whether it’s a
19 physical file or an electronic file, I think that will apply.
20 MR. HUSEMAN: If you will look at what we
21 produced, Your Honor, that we gave you.
22 THE COURT: I’m not going to look at what
23 you - -
24 MR. HUSEMAN: There are tabs under that
25 which -- has the underwriting documents --
CYNTHIA PEREZ LENZ, CSR
39
1 THE COURT: I am not going to address what you
2 produced. I’ll let them address that. I am addressing only
3 the objections. Because that’s what I am addressing today. If
4 you’re telling me, Judge, we’ve produced everything, then
5 great. Then that means, we -- you’re withdrawing -- the only
6 thing I want to know is I have to address your objections,
7 unless you withdraw them. That’s it. Whether you produced it
8 or not, I am not going to go through that right now and find
9 our whether that - - because they are not saying you haven’t
10 produced it. They are saying, I want to address your
11 objections. So that’s that’s what I need to do. And we’re
12 on the first one.
13 So, what I am going to do is -- I am not sure
14 if there is a problem with the definition. I am just basically
15 going to say whatever the definition is underwriting file for
16 your client, that’s what it’s basically going to be. So --
17 MR. TAYLOR: I’ll cut this down.
18 THE COURT: Let’s see. It’s relevance, and
19 what else was there? I think that was it. Yeah. Okay.
20 MR. TAYLOR: Let me go to Request For
21 Production Number Six, Judge. All documents used to instruct,
22 advise, guide, inform, educate, or assist, provided to any
23 person handling the claim made the basis of this lawsuit
24 related to the adjustment of this type of claim, i.e. hail
25 damage. What I’ve done is I’ve limited that through several
CYNTHIA PEREZ LENZ, CSR
40
1 letters to counsel. I want instructional guidelines,
2 documents, materials related to wind and hail claims in the
3 State of Texas for five years.
4 THE COURT: And your theory behind that is
5 that’s going to be instructive to the adjustors who handled
6 this claim to find out exactly how they did it.
7 MR. HINOJOSA: That’s right.
8 MR. TAYLOR: That’s going to go to both causes
9 of action to each contract and as to productions.
10 MR. HUSEMAN: What counsel didn’t tell you is
11 we are agreeable. AdditionaHy, I think five years is the year
12 that -- as long as we have a protective order in place that
13 keeps our proprietary information out of the public domain and
14 being used other places. And we have a proposed order before
15 the court, which if we can get an agreement on that, we can
16 produce that to them.
17 THE COURT: Did you all object to that?
18 MR. TAYLOR: Judge, this is the first time
19 I’ve heard of that.
20 THE COURT: Did you object to Number Six on
21 that?
22 MS. DEBOLT: Yes, Your Honor. We objected
23 because it --
24 THE COURT: No, no. But specifically, for
25 that privilege.
CYNTHIA PEREZ LENZ, CSR
41
1 MS. DEBOLT: Yes. We stated the privilege.
2 And then we also in the objection state that we would produce
3 the documents.
4 THE COURT: There it is. I see it.
5 MR. HUSEMAN: Yeah.
6 MS. DEBOLT: And then, Your Honor, I think
7 that we may streamline a lot of this because Exhibit B to our
8 response is all of the documents that we’ve offered to produce
9 once there is a protective order that’s entered. And there are
10 a lot of documents that we will produce once we get that
11 protective order.
12 MR. TAYLOR: I’ve seen their list. And that’s
13 -- what I am requesting are all the documents related to wind
14 and hail claims for the last five years. I don’t --
15 THE COURT: Not the wind and hail claims.
16 You’re requesting
17 MR. TAYLOR: How to handle wind and hail
18 claims.
19 THE COURT: Right.
20 MR. TAYLOR: I don’t necessarily want the
21 documents -- I’ll take them -- that they have hand picked as
actually
22 being relevant, because I want what these people are
So
what’s available to them, and what they’re taught on.
--
23 --
24 THE COURT: Right.
MR. TAYLOR: I’ll take what they have. But
25
CYNTHIA PEREZ LENZ, CSR
42
1 what I want them to do is do a search for those documents for
2 five years. And I want that to be produced. And I think it’s
3 relevant.
4 MR. HUSEMAN: This takes us -- circles back to
5 the rule about them asking for things beyond this lawsuit.
6 THE COURT: No. Well, this is specifically in
7 this lawsuit, because the instructions that you give your
8 adjust- -- not you, your client gives your adjustors, and the
9 guidance that your company, that your client give the adjustors
10 on how to handle this claim, ultimately will deal with how they
11 handle this particular claim.
12 MR. HUSEMAN: Don’t have a problem with that.
13 THE COURT: Okay. Then let’s go.
14 MR. HUSEMAN: The problem we’ve got is when
15 they ask us to identify by name, address, phone number,
16 anybody --
17 THE COURT: We are talking about Number Six,
18 right?
19 MR. HUSEMAN: No, this is Seven.
20 THE COURT: Cause we’re on Six.
21 MR. HUSEMAN: This is --
22 MR. TAYLOR: Your Honor, I am not compelling
23 Number Seven.
24 MR. HUSEMAN: What I’m saying, Your Honor --
25 THE COURT: They’re not compelling Seven.
CYNTHIA PEREZ LENZ, CSR
43
1 Let’s not go to Seven. Let’s stick to Six, because Six is what
2 they’re compelling.
3 MR. HUSEMAN: Well, this ties in to our
4 complaint about them wanting things beyond the scope of this
5 claim.
6 THE COURT: But Seven they are not requesting
7 -is what they’re -- is what he’s asking me. So, I’d rather not
8 chew on something that we don’t need to right now. We’ve got
9 plenty.
10 MS. DEBOLT: Your Honor, in our -- we
11 responded to them and offered with the entry of a protective
12 order to produce relevant education and training or training
13 tracker records, if any, of the assigned adjustor to directly
14 handle plaintiff’s hail claim.
15 MR. HUSEMAN: Right.
16 MR. HINOJOSA: Well, Your Honor, but they are
17 determining what relevant is in that respect. We just want
18 them to produce what we’ve asked for. And, unless they have a
19 specific objection --
20 THE COURT: Okay. You don’t have any
21 objection to entering into the confidentiality agreement or a
22 protective order?
23 MR. HINOJOSA: The only thing on that, Your
24 Honor -- and I guess we can take it up real quick on that.
25 We’ve asked -- there’s I think a total of ten hailstorm claims
CYNTHIA PEREZ LENZ, CSR
44
1 here in Laredo as a result of a series of hailstorms that
2 occurred over a period of time. And we’re asking so that we
3 don’t have to be coming back every time on this particular
4 issue, that we allow -- be allowed shared discovery; that if we
5 get this discovery in this particular case, that we can -- we
6 can use -- this law firm, the Mostyn Law Firm can use the same
7 discovery responses or documents that were produced in any of
8 the other ten cases. And subject to that, we would -- we don’t
9 have a problem with the protective order. And I think
10 that’s -- there’s a big argument against that that they are
11 making now.
12 The -- the 13th Court of Appeals has already
13 ruled on that issue. But we’re not in the 13th Court, I
14 understand that. And it has allowed that. That’s probably the
15 main issue of dispute with respect to the training documents
16 and the information -- the information that the adjustors are
17 to review to guide them in --
18 THE COURT: Okay. What I see on the
19 objections so far is you’re objecting to vague and ambiguous.
20 Apparently Mr. Taylor says he’s clarified that with some
21 follow-up narrowing of the request, or clarification of the
22 request. Overly broad is another objection. Relevant is
23 another objection. Based on what Mr. -- what they say that
24 they have -- in the manner in which they have, I guess,
25 narrowed the issue on Number Six, and as modified, I will
CYNTHIA PEREZ LENZ, CSR
45
1 overrule the objection with regard to vague and ambiguous;
2 overrule it with regard to overbroad; and overrule it with
3 regard to relevant; however, subject to the -- the protective
4 order.
5 Now, let’s talk about this other issue.
6 MS. DEBOLT: Just for your reference, these
7 are the documents that we’re going to be potentially arguing
8 about, and that we’ve offered to produce with the protective
9 order.
10 THE COURT: I’m not -- I’m not -- I’m not
11 discussing this, I’m discussing what’s in the response and on
12 your objections.
13 MS. DEBOLT: Yes, Your Honor. And that’s what
14 we’ve offered to produce.
15 MR. HINOJOSA: But they’ve offered to produce
16 because they have the objection. You’ve already removed the
17 objection.
18 THE COURT: The ruling that I am giving --
19 MS. DEBOLT: Okay.
20 THE COURT: -- is basically the Request For
21 Production Number Six, whether you should have to respond to it
22 in the modified version that Mr. Taylor -- it is Taylor, isn’t
23 it?
24 MR. TAYLOR: Yes, sir, Your Honor.
25 THE COURT: -- has in fact indicated to the
CYNTHIA PEREZ LENZ, CSR
:atYo;:H:y:or;ndic::d:o::46
::1tC:trt::thesmT:::fC::;ROT
5 way of e-mail or letter or whatever it was, that he clarified
6 as. And based on that, I am making the ruling on your
7 objection.
8 MR. ARAMBIJLA: Your Honor, if I may, the
9 clarification from plaintiff’s counsel was what again?
10 THE COURT: Modification,
11 MR. ARAMBULA: Or modification that you
12 wanted, what was --
13 MR. TAYLOR: Instructional guidelines and
handling wind and hail claims
14 materials related to wind and --
15 in Texas for the last five years.
MR. ARAMBULA: For the adjustors in these - -
16
MR. HUSEMAN: This case?
17
MR. ARAMBULA: In this case?
18
MR. TAYLOR: No, for State Farm.
19
MR. HINOJOSA: Their policies.
20
MR. TAYLOR: The policies and procedures.
21
MR. HINOJOSA: That’s pretty clear in the
22
23 request for production.
MR. HUSEMAN: It’s pretty broad.
24
Well, do you all train do you
THE COURT:
--
25
CYNTHIA PEREZ LENZ, CSR
47
1 all train your adjustors -- not you all, but does your client
2 train your adjustors differently in different parts of the
3 state?
4 MR. HIJSEMAN: Probably.
5 THE COURT: Why?
6 MR. HUSEMAN: Well because they have
7 different conditions at different times.
8 THE COURT: So the homes in south Texas get
9 adjusted one way, and the homes in north -- north Dallas get
10 adjusted a different way?
11 MR. HUSETIAN: I would think that they have a
12 lot more interest in tornadoes in Dallas than they do down
13 here.
14 MR. HINOJOSA: Your Honor, there is no --
15 there is no evidence of that. I’ve been through all these
cases, Your Honor. They have never raised that issue. This is
16
17 the first time I’ve ever heard that.
18 MS. DEBOLT: And Your Honor, his modification
19 is broader than --
20 THE COURT: You still haven’t convinced me of
21 why you would train your adjustors differently.
22 MR. HUSEMAN: Different places, different
23 needs, at different times.
24 THE COURT: On underwriting a particular
25 house?
CYNTHIA PEREZ LENZ, CSR
48
1 MR. HUSEMAN: Well underwriting is not
2 something an adjustor does. That’s --
3 THE COURT: Okay. Well then or on -- on
4 appraising a particular house with regard to the destruction.
5 MR. HUSEMAN: Well, for example, if -- and I
6 don’t even know this is a fact. If -- if --
7 THE COURT: So then an expert from - - an
8 expert that’s brought in here to testify in south Texas about a
9 particular damage --
10 MR. HUSEMAN: fihum.
11 THE COURT: Would have to be somebody who is
12 trained in south Texas wind damage, as opposed to north Texas
13 wind damage?
14 MR. HUSEMAN: Well, I could perceive, for
15 example, Your Honor, there being differences in prices between
16 Dallas and south Texas.
17 THE COURT: But don’t they all use the same
18 computer model that they use?
19 MR. HINOJOSA: Yes.
20 MR. HUSEMAN: They have some similarities, but
21 there are reasonable differences.
22 THE COURT: I’ve had -- and I know I don’t
23 have testimony with regard to that here. But I’ve had plenty
24 of trials in which I’ve had issues of value come up. And I’ve
25 heard people object to experts that are brought in from perhaps
CYNTHIA PEREZ LENZ, CSR
49
1 Michigan or other parts of the country. But I have never heard
2 of them object to experts that are in fact doing work in and
3 around the State of Texas, whether it be Dallas or Houston
4 or --
5 MR. HUSEMAN: Maybe I haven’t made the point
6 clearly. The objection here is what they are wanting to do is
7 know about training of adjustors other than those that are
8 involved in this lawsuit.
9 MS. DEBOLT: And, Your Honor, actually, that’s
10 all they ask for in the request. His modification is broader
11 than their request, because they only asked for training
12 documents to any person handling the claim. So, his
13 modification wanting all adjustors around the --
14 THE COURT: All right. Let’s look at that.
15 MS. DEBOLT: Okay.
16 THE COURT: Okay. Mr. Taylor. It seems that
17 that’s in fact what you requested.
18 MR. TAYLOR: One second. I think there is
19 another request.
20 THE COURT: Good point. Okay. With regard to
21 Number Six then, we’ll deal with it in that manner. If you
22 have another one, then we’ll deal with it at that point.
23 MR. HINOJOSA: That’s fine, Your Honor.
24 THE COURT: Okay. Now, it is eleven o’clock.
25 I need to have a discussion with counsel that are waiting for a
CYNTHIA PEREZ LENZ, CSR
50
1 hearing, and then I’ll bring you guys back.
2 MR. HINOJOSA: Okay, Your Honor.
3 MR. ARAMSULA: Yes, Your Honor,
4 THE COURT: And while I do that, I suggest
5 that you try and confer.
6 (Case recessed while other unrelated matters
7 were called.)
8 THE COURT: All right. Let’s continue.
9 And you all can stick around, please. I am
10 trying to get to you before lunch --
11 MR. GEORGE: Thank you.
12 THE COURT: -- or before I break for lunch.
13 MR. TAYLOR: One last request. And it’s the
14 training material -- all training and educational materials
15 which instruct claim adjustors or claim handlers in handling
16 hail claims for property damage cover under homeowners policy
17
18 THE COURT: What number is that?
19 MR. TAYLOR: This is on Pena.
20 MR. HINOJOSA: Pena. The other one was more
21 narrow. That’s why we were --
22 MR. TAYLOR: Pena Number Five.
23 THE COURT: Okay. So Pena Number Five is not
24 the same one as Rodriguez Number - -
25 MR. HINOJOSA: Rodriguez narrower - -
CYNTHIA PEREZ LENZ, TSR
51
1 THE COURT: Number Six, I believe it was.
2 MR. TAYLOR: And I think we’ve agreed to that,
3 pending the protective order. We conferred a little bit.
4 THE COURT: Well, there was a little bit of a
5 - there was a little bit of a -- from what I remember, there
6 was a little bit of disagreement. I don’t want to say they
7 agreed to it. There was a little bit of disagreement with
8 regard to -- remember that I said that we’d like to limit it to
9 adjustors who handled that -- that particular adjustment, or
10 that particular claim. And there was a -- there was a -- there
11 was a discussion about that. And then at the very end, she
12 said that by my ruling I was making it broader than what you
13 were requesting. So here we are on Number Five. Then now I
14 can actually do what my original ruling was. So, anything else
15 to add?
16 MS. DEBOLT: We have the same objections as we
17 discussed earlier.
18 THE COURT: Sure. Sure. And I will allow for
19 the record to show that the objections are - - that were made on
20 Number Six for Rodriguez case are now made on Number Five for
21 the Pena case. And I’ll bring those over and make them part of
22 the record. And in fact, you’ve -- you’ve -- you brought that
23 in. My rulings are exactly the same as the Pena rulings Number
24 Six -- no, as the Rodriguez ruling, Number Six, into the Pena
25 Request Number Five. And my original ruling on that case will
CYNTHIA PEREZ LENZ, CSR
52
1 stand on the Number Five -- on the Pena Number Five, which will
2 be -- unless you can show me that in fact there is a
3 distinction in which you all do that, train your adjustors, I
4 don’t see how that in fact can be the case.
5 I would think that -- especially on these hail
6 damage cases, they -- you know, there is no evidence of this
7 for purposes of this hearing, but I -- some of the things that
8 I’ve seen in the past, and I hear in the courtroom and
9 otherwise is that sometimes there are teams of people that are
10 brought down to particular areas when these type of claims
11 occur, and they don’t necessarily live here in Laredo or
12 whatnot, when a claim is in Webb County. So --
13 MR. HINOJOSA: So the only issue is --
14 THE COURT: Yes, sir. He wanted to say
15 something. Mr. Huseman?
16 MR. 1-IUSEMAN: If I might. I want to make sure
17 the Court’s clear about a position. We’re not fussing at all,
where
18 subject to the protective order, about producing things
19 adjustors were involved in this claim at all.
20 MR. HINOJOSA: But I think you already ruled,
21 Your Honor, and --
THE COURT: No, I give me a second. Don’t
22 --
23 -- the frustrated guy should be me, not you. Give me a second.
24 MR. HINOJOSA: I’m sorry.
25 MR. HUSEMAN: Truly so.
CYNTHIA PEREZ LENZ, CSR
53
1 THE COURT: Thank you. So I understand
2 completely, And I am just saying I just don’t think it’s going
3 to be -- there’s -- there is nothing on the record that shows
4 that these people, these folks are trained any differently. So
5 your search of one should be, you know, the trainings that
6 people go to, or that you may require them to go to, or the
7 material that you send out to them, if any. There may not be
8 any. In fact, are the same for one or the other, And I don’t
9 suspect that anybody should - - should - - because, you know, the
10 other argument that can be made is, somebody may have missed a
11 session, but doesn’t mean that they’re not still stuck to what
12 -- in other words, that they’re not in fact required to know
13 exactly what it is that -- that the company requires. So
14 that’s -- that’s --
15 MR. 1-IUSEIIAN: We’re going to give them the
16 materials. That’s not the problem.
17 THE COURT: Thank you.
18 MR. HUSEMAN: But by the same order of
19 thinking, if they’re all the same, then giving them ones in
20 this case will get the job done.
21 THE COURT: I understand your objection. I
22 made my ruling. Next one.
23 MR. HINOJOSA: The issue of the protective
24 order, Your Honor.
25 THE COURT: Protective order. You all don’t
CYNTHIA PEREZ ENZ, CSR
54
1 agree on that?
2 MR. ARAMBULA: No, Your Honor.
3 MR. HINOJOSA: The only issue is the shared
4 discovery issue. And that’s --
5 THE COURT: Now, you remember what the courts
6 have said with regard to shared discovery. There’s -- there is
7 a public -- what is the word that the case law says? And I
8 deal with these issues, not necessarily on these hail and wind
9 damage, but on products liability cases. A lot. We’ve had a
10 lot of products liabilities trials.
11 MR. HUSEMAN: Tire roll outs or whatever.
12 THE COURT: Products liability. I tell you
13 what, I’ve had, you know, all sorts of products liability cases
14 between Webb and Zapata Counties. You’d be surprised. So we
15 have that. But that, I believe, may be a standard that is
16 different to -- that is - - that is more concentrated or more
to
17 that the rules apply to products liability cases, as opposed
18 anything else.
19 MR. HUSEMAN: That’s exactly.
20 THE COURT: Can you - - do you disagree with
21 that?
MR. TAYLOR: I do, Judge. And I can let
22
--
23 me - - If -- I think what the supreme court -- and you know, at
24 least in the People’s case was favoring shared discovery was
25 for efficiency. And I can give an example here. We have
CYNTHIA PEREZ LENZ, CSR
55
1 probably a hundred cases that I am handling around the State of
2 Texas where I am going to be compelling training materials for
3 wind and hail claims against State Farm. I recognize that
4 they - - they have a proprietary right. And I want to protect
5 that as well. I don’t want that stuff getting out.
6 But for purposes of efficiency and not having
7 to waste the Court’s time and going to compel at different
8 places, let’s produce it once. They can stamp it however it
needs to be stamped to protect it, and to recognize it. I am
9
10 not going to send it anywhere outside of my firm.
11 THE COURT: In other words, you’re not going
12 to share it with other plaintiff’s counsel --
13 MR. TAYLOR: Just me, my firm.
14 THE COURT: - - with your associations, and
15 things of that nature. Is that --
16 MR. TAYLOR: It’s just more to save my clients
17 money from traveling, to save my money and time.
18 THE COURT: But from traveling here?
19 MR. TAYLOR: Yeah, from having to come down --
20 THE COURT: You’re talking about Webb cases
21 only?
22 MR. TAYLOR: No, no, all around.
THE COURT: You’re not just I thought you
23
--
Webb, and
24 said that there was about ten cases filed here in
here.
25 that you wanted to basically be able to do them
CYNTHIA PEREZ LENZ, CSR
56
1 MR. TAYLOR: Well, I proposed one that would
2 allow me to share my cases only for first party cases against
3 State Farm in the State of Texas. And, you know, there’s
4 probably ten different counties that I have cases in.
5 THE COURT: Oh, is that what you said - ten
6 different counties? I thought you said ten different cases.
7 MR. HINOJOSA: I said ten cases, Your Honor.
8 MR. TAYLOR: I do have ten cases currently in
9 litigation in Webb County. I have some more that I haven’t
10 filed yet, but I’m in probably about ten different counties.
11 And so that’s what I started at, and --
THE COURT: Okay. Tell me what what the
12
--
13 rules say about that. How is it that you’re protected for this
14 material? Why is this material so -- so protectable?
15 MR. REDGRAVE: The material itself, I don’t
, as far as
16 think there is actually a dispute between the sides
ing materials
17 the protection for the material itself, the train
I’m sorry,
18 that provide State Farm with a confidential or --
state.
19 competitive advantage, vis-à-vis other insurers in the
20 That’s part of their trade.
21 THE COURT: Well, they’re not asking for like
22 your actuaries or anything like that. They’re asking for how
23 do you train your people.
24 MR. REDGRAVE: That -- that material itself,
And in
25 Your Honor, State Farm has asserted in multiple cases.
CYNTHIA PEREZ LENZ, CSR
57
1 fact, plaintiffs have agreed that they recognize the trade
2 secret value of those materials. The way in which State Farm
3 trains --
4 THE COURT: Trade - - supreme court has come
5 down with what is actually a trade secret here recently,
6 remember that. Do you meet that criteria with how you train
7 your people?
8 MR. HUSEMAN: fl’hum.
9 THE COURT: This isn’t -- this isn’t -- this
10 isn’t, you know -- what’s the latest thing that was said with a
11 trade secret? This isn’t the -- the geology for, you know,
12 what’s 13,000 feet below the surface, and, or what may be
and
13 13,000 feet below the surface, and where a lot of value
of
14 cost and whatnot has gone into all that type of development
15 the particular areas. I mean, this is, you know, how do you
a look
16 train somebody to go look at a roof, and what to take
17 at. I mean, it’s not - how long would you actually take to do
18 that? How much investment do you take to actually put that
19 together?
20 MR. REDGRAVE: Your Honor, actually there’s a
21 lot of investment State Farm does, first of all.
22 THE COURT: To protect --
23 MR. REDGRAVE: Secondly, I recognize it’s not
24 a formula case. I’ve been involved in formula cases for, you
25 know, a particular product. We know that’s not what this case
CYNTHIA PEREZ LENZ, CSR
58
1 is, in terms of confidentiality. But keeping the material
2 confidential and out of the public view is a competitive issue
3 for State Farm, because other insurers would love to get their
4 hands on how State Farm trains adjustors. There’s a lot of
5 effort that goes into making the materials so that adjustors
6 understand the process, understand the workloads within State
7 Farm, and in fact the way the adjustors then interact with the
how
8 enterprise claim system; how they put the information in;
s
9 it goes into the system so State Farm can adjust and proces
10 the claims with a competitive advantage vis-à-vis the other
11 insurance carriers.
So from State Farm’s perspective and I
12
--
13 believe we put in evidence on this as well, that is a
14 competitive trade secret.
15 THE COURT: Okay. Let’s just suppose for a
16 moment - - because there is no objection on that side with
17 regard to --
18 FIR. REDGRAVE: Correct.
19 THE COURT: - - putting it in the hands of your
20 competitors obviously. They are more -- that’s not what
they’re concerned about. And I haven’t that was my first --
21 --
22 the first way to be able to -- to deal with the situation is --
23 well, does it even meet the criteria. And if it doesn’t, let’s
24 just move on. Okay. Let’s just suppose it meets the criteria.
with these
25 That’s not the criteria that you have to worry about
CYNTHIA PEREZ LENZ, CSR
59
1 folks, do you? I mean, because they are willing to say, I’ll
2 sign off on that. What they’re wanting to do is, I am involved
3 in other cases, I am already going to see your material in this
4 case, I would like to be able to use it in a different case.
5 Now I have a different question to you with
6 regard to that, but that’s more procedural in nature than
7 anything else.
8 You’re basically saying -- you’re saying, I
9 don’t want -- I don’t want you to share it with yourself in
10 other cases.
11 MR. REDGRAVE: Your Honor, two things first.
12 Your break actually helped us go out and confer a little bit on
13 this very point.
14 THE COURT: Okay, good.
15 MR. REDGROVE: It was very helpful, because
16 Mr. Taylor kind of zeroed in on this provision as being the one
17 and only one in dispute. So really, we have a lot of others we
18 we have in our papers. But I think they are willing to say
19 they want to have this resolved, whether they can share within
20 the Mostyn firm. And that was a helpful clarification to us.
21 THE COURT: Okay, good.
22 MR. REDGRAVE: Because the language they had
23 in the original protective order they proposed didn’t have that
24 restriction just to the Mostyn firm. I think with respect to
25 our position, as a matter of principle, we think discovery in
CYNTHIA PEREZ LENZ, CSR
60
1 these cases should be limited to these cases. However, I
2 recognize that Your Honor might just overrule that very
3 quickly.
4 MR. HINOJOSA: That will resolve the issue.
5 THE COURT: Sometimes I surprise you.
6 MR. REDGRAVE: You did have a question for
7 Mr. Taylor. And you wanted to ask a question.
8 THE COURT: Well, my question to him was, I
9 mean, you’re -- you’re saying so that I wouldn’t have to come
10 back to court and have these documents produced. I mean, it
11 could be a very -- it could be another firm in another case.
12 And here you are with the documents. And you want to say,
other case in
13 well, Judge, they agreed to produce these in the
14 Webb County, and --
15 FIR. HUSEMAN: That’s --
16 THE COURT: I mean, it’s not really going to
ents that they
17 be continued under the discovery rules as docum
18 produced in that case. Its just something that you can use.
19 MR. HINOJOSA: Right.
20 THE COURT: Right. But not that’s going to be
well, it’s
21 -- not that’s going to be available for you to say,
under the rules
22 admissible because they produced it, you know,
23 that when you when you produce the document, that now you
--
ing bringing
don’t have to do all the rigamarole of bring
--
24
whatnot. But
25 somebody down to testify on its authenticity and
CYNTHIA PEREZ LENZ, CSR
61
1 so, this isn’t something that you are going to be able to use
2 in that matter.
3 MR. TAYLOR: It gives me a baseline, for
4 example.
5 THE COURT: For asking some questions.
6 MR. TAYLOR: For -- oh, no, no. For actually
Hey,
7 going to opposing counsel in another case and saying,
ed it in
8 here’s what I know exists; has been produced; we produc
9 this case.
10 THE COURT: Sure. I understand that.
11 MR. TAYLOR: Yeah. And that’s really what
12 I --
THE COURT: I’ll get to you, Felix. Give me a
13
14 second.
15 MR. ARAMBULA: Yes, Your Honor.
16 MR. TAYLOR: And that’s really my goal, is
because I like to have some consistency. And --
17
THE COURT: I understand that. But I just
18
that I wasn’t that you
wanted to make sure that we
--
19 - -
20 weren’t expecting -- even if I go that route, an order that
discovery that will
21 basically says these documents will be now
firm is involved
22 be officially usable in all cases that Mostyn
23 in. That’s not the order you’re going to get.
24 MR. TAYLOR: Not admissible, but I can use
25 them in depo for example --
CYNTHIA PEREZ LENZ, CSR
62
1 MR. ARAMBULA: Here we go.
2 THE COURT: Well, I am not talking about
3 admissibility. Maybe I should have said it differently. That
4 they would be considered official discovery of another case.
5 It’s really not going to be official discovery. It’s just
6 going to be something that you can use - -
7 MR. TAYLOR: Yeah.
8 THE COURT: And then -- in other words, if
9 they -- if they say -- if in other cases in the firm that
10 they’re not -- that they may not be involved in, and I am
say
talking about the defense firm before the court now, and
--
11
12 and you asked for these documents. And they say, Well, we have
be
13 none. You can say, What do you mean you have none; don’t
going
14 silly. These were produced to me in Webb County, so I am
15 to use these documents. You can use it like that.
16 MR. TAYLOR: Right.
17 MR. HINOJOSA: Yes.
MR. TAYLOR: And that’s what I -- I want to be
18
say, here
19 -- maybe skip the whole motion to compel thing and
20 are the documents - -
21 THE COURT: Mr. -- Felix, go ahead.
22 MR. ARAMBULA: Your Honor - -
23 THE COURT: I am sorry to call him Felix, but
24 I’ve known him for --
MR. ARAMBULA: That’s okay, Your Honor. Thank
25
CYNTHIA PEREZ LENZ, CSR
63
1 you.
2 I know opposing counsel speaks to wanting to
3 get these documents to make it easy on the court, things of
4 that sort. But if we were to follow what plaintiff’s counsel
5 wants, we would produce these documents, but then the other
6 firm would say -- my firm, which -- I am not with --
7 THE COURT: Right, with the Huseman.
8 MR. ARAMBULA: My firm, we would be in court
would get
9 again fighting over the same documents, because we
that he may
10 the written discovery for those exact documents
So, there is no this
have gotten from this other firm.
--
11
12 argument about making it easier for the court.
13 THE COURT: Because now you’re requesting
And you’re
14 documents that are relevant to the proceedings.
going to know now that they have that. Is that what you’re
15
16 saying?
MR. ARAFIBULA: No, no, no. What I am saying
17
18 is they’re -- more than likely they are going to ask for the
use that
19 exact same stuff because they know they can’t
20 document.
21 THE COURT: Right. But the distinction is --
22 and I understand that.
23 MR. ARAMBIILA: Correct.
24 THE COURT: They are going to have to ask for
25 it.
CYNTHIA PEREZ LENZ, CSR
64
1 MR. ARAMBULA: Yes, sir,
2 THE COURT: But the distinction is now that
3 you’re not going to object to it, because -- because --
4 MR. HINOJOSA: We know it’s there.
5 THE COURT: They know it’s there, one. You
6 may object to it; may have different judge, you know --
7 MR. ARAMBULA: That’s exactly right, Your
8 Honor.
9 THE COURT: You may object to it, and you nay
10 get a different ruling. I mean, everybody’s been using other
11 judge’s rulings to tefl me that I should rule one way or
12 another. But, you know, that happens, and you’re not the first
13 folks that do that.
14 MR. ARAMBULA: I guess my point --
15 THE COURT: Federal district court judge or
16 state district court judge. I happen to know Judge Reyna more
17 than I know Judge Alvarez, but -- you know, when you’re a state
18 court judge, you usually know more state court judges.
19 MR. HUSEMAN: I think I chose the wrong --
20 MR. HINOJOSA: If I may, Your Honor.
21 THE COURT: Let me just have Felix finish his
22 thought.
23 MR. ARAMBULA: Yes, Your Honor. I was just
24 responding to the argument that it would be easier for
25 everybody. It’s not going to be easier.
CYNTHIA PEREZ LENZ, CSR
65
1 THE COURT: It may not be easier. Go ahead.
2 MR. HINOJOSA: I understand that - - that the
3 issue with whether or not it was going to stay within the firm
4 -- and I think we all agree that its going to stay within the
5 Mostyn firm, and there is not going to be any sharing with any
6 other lawyers outside of those particular - -
7 THE COURT: And that’s -- and that’s going to
8 be my ruling.
9 MR. HINOJOSA: Thank you.
10 THE COURT: So that’s my ruling as to your
it will stay in the firm. It
11 objections, is it will stay --
el in other
12 will stay not being able to share with even co-couns
13 cases -- I mean, in -- co-counsel that you may have been
14 involved in. It stays in the firm. And that’s the bottom line
15 on it.
16 MS. DEBOLT: And just for clarification, the
State Farm
17 rest of the protective order is going to be the
18 submitted protective order?
19 FIR. TAYLOR: Well, apart from the part that we
is done. I don’t
20 have to return the stuff after the litigation
21 want to have to do that.
22 MR. ARAMBULA: Well, that’s another point at
23 issue, Your Honor. They still want to keep the documents after
24 this lawsuit has resolved itself. We would want to in a
done.
25 typical protective order get it back after it’s
CYNTHIA PEREZ LENZ, CSR
66
1 MR. HUSEMAN: Standard.
2 MR. ARAMBULA: Standard. Standard protective
3 order.
4 THE COURT: Well, it’s not that much. But I
5 mean, I’ve gone both ways on that issue. In fact, Ms. De Llano
6 was here earlier. She’d tell you what I fumbled with on that
7 issue.
8 MR. TAYLOR: I’ve had -- in the hurricane/ice
9 litigation, had millions of documents that were produced. Some
10 of them were produced in a federal court case. And I had to
11 basically swear that -- that I destroyed everything and sent
12 everything back. And it’s just -- it’s -- the way that it
13 is -- it’s very complicated, and it’s -- it makes me nervous.
14 And if I’m protecting it anyways, and they are not going
15 anywhere, I don’t see the need for that.
16 THE COURT: Well --
17 MR. HINOJOSA: The problem is it’s a -- it’s
18 a --
19 THE COURT: I mean, you all have a cause of
20 action regardless, don’t you?
21 MR. HINOJOSA: Yeah.
THE COURT: I mean, the whole idea was -- and
22
23 I read an article recently -- the whole idea is going to be
24 now -- okay, you’re not guaranteed that in fact your cause of
25 action will be heard here. But that’s a different story.
CYNTHIA PEREZ LENZ, CSR
67
1 MR. HINOJOSA: It’s a logistical nightmare,
2 Your Honor.
3 THE COURT: It is,
4 MR. HINOJOSA: Because we’re in the middle of
5 litigation --
6 THE COURT: But I understand their -- once it
7 goes to a file, do you really think it’s going to go out
8 anywhere else?
9 MR. ARAMBULA: If I may, Your Honor, it’s no
10 different, once the case settles, we ask for the settlement and
11 release documents, give us everything back, with that -- with
12 the same documents once we settle the case. Whatever we
13 exchange in discovery, give it back with the -- with the
14 settlement release.
15 MR. HINOJOSA: But if you have shared
16 discovery, Your Honor, I mean, the whole purpose of the shared
17 discovery, which is limited in the -- in to this particular law
18 firm --
19 THE COURT: Okay, guys.
20 I -- I understand. Okay. We started talking
21 about things very broadly. We narrowed it down to, okay, I
some
22 really just want them so that I can use them to facilitate
23 of the cases that I am already working on, and for the
24 convenience of not only perhaps maybe this court in other
25 cases, but other judges in, I guess, the state. We talked to
CYNTHIA PEREZ LENZ, CSR
68
1 that.
2 So, how long can that go for? You know, it’s
3 like you’re going to have how many cases going on; you may have
4 other State Farm cases in the future. I mean, its going to be
5 perpetual, it seems like it could be.
6 MR. HINOJOSA: But if it stays with the firm,
7 and it can’t be used, I mean, maybe you can put a time limit on
8 it, Your Honor.
9 THE COURT: That’s even worse. Because then
10 you lose track of what -- what - - when these cases end and
11 whatnot. So, what I’ll do is I’ll put a time limit, but it
12 will be this way. It will be one year -- has to be either
13 destroyed or returned one year after this case is resolved.
14 MR. HINOJOSA: That’s fine.
15 MR. ARAMBULA: That will work for us, Your
16 Honor.
17 THE COURT: Thank you.
18 MR. REDGRAVE: If we can address the two
aphs 20
19 things you just ruled upon are paragraphs one and paragr
20 of the proposed order, we can submit - -
21 THE COURT: You can either interlineate or
22 submit it to me for --
23 MR. REDGRAVE: We’ll submit it.
24 MR. TAYLOR: Last thing, Judge.
25 THE COURT: I thought that was the last thing.
CYNTHIA PEREZ LENZ, CSR
69
1 MS. DEBOLT: There is one mother motion.
2 MR. TAYLOR: Under 196.4, I requested that any
3 of the electronically stored information to these training
4 materials be produced in native format.
5 THE COURT: What’s the problem with that?
6 MR. REDGRAVE: Your Honor - -
7 MR. ARAMBULA: I am going to step out on this
8 one, Your Honor.
9 THE COURT: I just went through an e-discovery
10 training not too --
11 MR. ARAMBULA: Judge’s conference, Your Honor?
12 THE COURT: No, I had to actually go out of
13 state for that.
14 MR. REDGRAVE: Well, Your Honor, this gets to
15 be my issue. And the issue really is about this word “native
16 file”, and whether you can -- should have everything produced
17 in native files. We -- we made our objections. So, I want to
18 cut it down to really what -- what the objections are really
19 about. Under 196.4, as well the other rules of civil
20 procedure, we are allowed to object. And we did make those
21 objections. And the objections are based upon the facts we put
as well
22 in the record, the affidavit paragraphs 25 through 32,
y in the
23 as the affidavit talks about how information is actuall
to this
24 company moved from things like e-mail and other places
25 thing called the enterprise screen system. There it’s locked
CYNTHIA PEREZ LENZ, CSR
70
1 down into a read-only format.
2 And when litigation like this ensues, the
3 information is then pulled out to a particular form, or
4 processed. And then we produce it. In this case, we got
5 searchable PDFs. So you can search within, and things like
6 that - -
7 THE COURT: So you gave them -- what type of
8 file did you give them?
9 MR. REDGRAVE: PDF. It’s searchable. There’s
10 some pages that are -- like a picture, you can’t search a
11 picture, right.
12 THE COURT: Why do you want the native format?
13 What information do you want that --
14 MR. TAYLOR: Well, for example, on the
15 training materials, the PowerPoints, I want any of those
16 documents in native format. The color -
17 THE COURT: You want one in native format
18 precisely for what reason?
19 MR. TAYLOR: Oh, so for example, there are a
will
20 lot of versions of a particular training material that
21 come up, and comments or red lines. A lot of times in other
be
22 litigation, State Farm has produced a memo, and there will
23 a -- at the top of the memo it will say, the things in red we
can’t
24 need to discuss or change, but it’s black and white so I
25 see it.
CYNTHtA PEREZ LENZ, CSR
71
1 THE COURT: I tell you what I’m going to do.
2 I will allow for you to bring this up again after you receive
3 it. And if you have reasons to suspect that there is something
4 like that that may be occurring, then bring it up to my
5 attention, and I’ll allow that to -- to potentially be given to
6 you in native format.
7 MR. TAYLOR: Thank you, Judge.
8 MR. REDGRAVE: Your Honor, that’s exactly what
9 the courts have done. Thank you.
10 MS. DEBOLT: And then the last thing is our
11 defendant’s motion to compel discovery responses. And I can --
12 THE COURT: And you agreed to it already?
13 MS. DEBOLT: No.
14 MR. HUSEMAN: We agreed to --
15 THE COURT: No, I’m sorry. So there’s
16 objections on your part?
17 MR. ARAMBULA: That’s correct.
18 MR. TAYLOR: And we supplemented, and amended,
19 and we produced everything that we --
20 THE COURT: Do you want to withdraw some of
21 your objections?
22 MR. TAYLOR: Yeah, we did actually.
23 THE COURT: Okay.
24 MS. DEBOLT: Did you provide that to the
25 Court?
CYNTHIA PEREZ LENZ, CSR
72
1 Because I don’t have the most recent copy. We
2 got it yesterday. We were already on our way to Laredo when we
3 got all --
4 THE COURT: Okay.
5 MR. HINOJOSA: We’ll give you something
6 without the objections.
7 MS. DEBOLT: Oh, there’s still objections to
8 every request and interrogatory.
9 MR. TAYLOR: Okay.
10 THE COURT: Well , but I don’t want to hear --
11 I only want to hear the ones that you -- that you put today for
12 the compel -- for a hearing on the motion to compel
13 MS. DEBOLT: Oh.
14 FIR. HUSEMAN: Its their objections, right, to
15 our --
16 MS. DEBOLT: Their objections.
17 THE COURT: No, I know that. But you set it
18 for a hearing.
19 MS. DEBOLT: Right. This is our motion --
20 MR. HUSEFIAN: If they withdraw the objections,
21 that makes everybody’s life easier.
22 MR. HINOJOSA: With respect to that issue that
23 you were talking about.
24 THE COURT: Okay. Let’s go through them.
25 Let’s see what --
CYNTHIA PEREZ LENZ, CSR
73
1 MS. DEBOLT: Here are your courts copies.
2 MR. ARAMBULA: Which case are we going to hear
3 first on our motion to compel?
4 THE COURT: Rodriguez and Pena, right?
5 MS. DEBOLT: It is -- we can do Rodriguez
6 first.
7 THE COURT: I think they snuck in. They
8 bamboozled you all. They said 20, 30 minutes.
9 MS. DEBOLT: This really should --
10 THE COURT: I’ll be right with you all.
11 MR. HINOJOSA: What did you -- may I talk to
12 counsel? What did you want --
13 MS. DEBOLT: Every single one of our requests
14 was objected to.
15 THE COURT: I tell you what I’m going to do.
16 I’m going to take a real quick one -- I’m going to take this
and
17 divorce here that’s going to be given to me real quick,
18 then go -- maybe you can talk about it.
19 MS. DEBOLT: We can confer.
20 THE COURT: Please.
21 MR. ARAMBULA: Thank you, Your Honor.
22 THE COURT: And then maybe I can sneak you in.
23 You all talk about it for a little bit please,
24 but outside of -- not here.
25 (Case recessed while other unrelated matters
CYNTHIA PEREZ LENZ, CSR
74
1 were called.)
2 THE COURT: You all want to come back over
3 here? I am about to start this other hearing.
4 MR. HINOJOSA: Your Honor, with respect to the
5 motions to compel -- I think we need -- there really hasn’t
6 been the right kind of conferring in this case with respect to
7 her motion to compel, or their motion to compel. I believe
8 that if we do have that opportunity, we can resolve almost all
9 of them.
10 THE COURT: Y’all want to stick around
11 lunchtime, get you back this afternoon, and we can --
12 MR. HINOJOSA: Well, I mean, I don’t -- I
13 don’t know that that’s --
14 MS. DEBOLT: We’re here. Might as well just
15 hash it out. Let’s get it going.
16 MR. HINOJOSA: Well, I mean, a lot of the
17 stuff is stuff that -- for example, documents. They are asking
18 for certain documents to support your claim on this. A lot of
19 those documents are documents that we haven’t gotten yet.
20 We’re going to answer “will supplement”.
21 MS. DEBOLT: They didn’t respond that, Your
22 Honor. And if they’re going to answer “will supplement”, let’s
23 get them to answer “we’ll supplement”. They didn’t respond to
24 anything.
25 FIR. HINOJOSA: Then if we’re going to do this
CYNTHIA PEREZ LENZ, CSR
75
1 -- if they are going to insist on doing this, Your Honor,
2 you’re not talking about half-an-hour hearing. You’re talking
3 about a two-hour hearing. That’s what they are asking you to
4 do. But I am --
5 THE COURT: I am not going to give you a
6 two-hour hearing. I am going to send you back there. You can
7 stick around here this afternoon. And you’re going to have to
8 hash it out. Because I am not going to sit here for a two-hour
9 hearing on little issues, especially when you tell me that you
10 haven’t quite done the right type of conferring.
11 MR. HINOJOSA: There is no question that they
12 have not.
MS. DEBOLT: We’re here, Your Honor. We can
13
if
14 go hash it out back, and then get what we need on the record
15 you’d like that.
16 THE COURT: I -- I’d like for you all to be
17 able -- I really believe that in most of these cases there is a
lot of room for you all to try and get this done you know, a
18 --
19 lot of room for you all to work on, And I -- you know what, if
your own
20 the choice that I have is you spending two hours on
which
21 out there conferring, or me spending it with you, guess
22 one I am going to actually fall on. So, I really do think that
23 if --
MS. DEBOLT: And we have conferred. And I
24
25 have listed -- I sent them a letter telling them what issues we
CYNTHIA PEREZ LENZ, CSR
76
1 had, and with which -- with which discovery requests. And so
2 there has been - -
3 THE COURT: All right, guys.
4 MR. HINOJOSA: Conferring is not sending an
5 e-mail.
6 THE COURT: Okay. Let’s not -- give me a
7 second.
8 MR. ARAMBULA: Yes, sir.
9 THE COURT: I’m -- I’ve got some time
10 constraints of my own here. So, you all -- I wish I could tell
11 you there is a sandwich shop across the street, but there
12 isn’t. So, you decide what you all want to do. I am going to
13 be here all afternoon. You can go -- I have more room in the
14 - - in the jury room. You can use that. You can break for a
15 little bit for lunch or go get something to eat, and then see
16 yourselves back over here here. But I think that you may be
17 able to perhaps maybe sit right now. And then if you really
18 reach it, and you think you need more time, then maybe take it
19 from there. But --
20 MR. TAYLOR: Thank you.
21 MS. DEBOLT: Thank you.
22 THE COURT: So I’ll see you -- I want a report
23 back from you all with regard to what you’re doing. I am going
24 to -- after this hearing, I am going to go to lunch, and then
25 Ill be back here at 1: 30. So i f you want to be back here at
CYNTHIA PEREZ LENZ, CSR
77
1 1:30, and tell me what you’re doing, great.
2 MS. DEBOLT: Thank you, Your Honor.
3 MR. ARAF’lBULA: Yes, Your Honor.
4 May I be excused?
5 THE COURT: Yes, sir.
6 MR. ARAMBULA: See you back at 1:30.
7 (Case recessed while other unrelated matters
8 were called.)
9 THE BAILIFF: All rise, please. Court is back
10 in session.
11 (No attorneys present.)
12 THE COURT: Thank you. Have a seat, please.
13 I understand that the folks from this morning that were left
14 conferring reached an agreement on the issue of the motion to
15 compel. So I understand that they -- did they file a -- an
16 agreement? Do you know? Just - - they were working on
17 something in written form. They didn’t file it with you?
18 THE CLERK: No.
19 THE COURT: Okay. Maybe Chayo knows.
20 Chayo, do you know if they filed the Rule 11
21 agreement on the motion to compel?
22 THE COORDINATOR: I did not see it. On this
23 case?
24 THE COURT: Not this case. On -- I wish it
25 was something on this case. But not this case, On the Pena --
CYNTHIA PEREZ LENZ, CSR
78
1 Pena, Rodriguez.
2 THE COORDINATOR: They were here, They were
3 going to announce something to you, but they didn’t submit
4 anything to me.
5 THE COURT: All right.
6 THE COORDINATOR: I never saw the attorneys.
7 But maybe - -
8 THE COURT: All right. I am going to assume
9 that they in fact have an agreement; that they’re comfortable
10 with what they’ve reached; and what they had to be able to
11 enforce that, and move on.
12 (Proceedings concluded.)
13
14
15
16
17
18
19
20
21
22
23
24
25
CYNTHIA PEREZ LENZ, CSR
79
1 REPORTER’S CERTIFICATE
2 THE STATE OF TEXAS
3 COUNTY OF WEBB
4 I, Cynthia Perez Lenz, Official Court Reporter in and for
5 the 49th District Court of Webb and Zapata Counties, State of
6 Texas, do hereby certify that the above and foregoing contains
7 a true and correct transcription of proceedings requested in
8 writing by counsel for the parties to be included in this
9 volume of the Reporter’s Record, in the above-styled and
10 numbered cause, all of which occurred in open court or in
11 chanibers and were reported by me.
12 I further certify that this Reporter’s Record of the
13 proceedings truly and correctly reflects the exhibits, if any,
14 admitted by the respective parties.
15 I further certify that the total cost for the preparation
16 of this Reporter’s Record is $711.00 and will be paid by
17 Mr. Van Huseman______
18 WITNESS MY OFFICIAL HAND this the 9th day of March, 2015.
19
20 Is! Cynthia Perez Lenz
Cynthia Perez Lenz, Texas CSR 6746
21 Expiration Date: 12/31/2015
Official Court Reporter
22 49th District Court
1110 Victoria St., Suite 304
23 Laredo, Texas 78040
Phone: (956) 523-4240
24 Fax: (956) 523-5051
25
CYNTHIA PEREZ LENZ, CSR
Filed
3/25/2015 5:17:12 PM
Esther Degollado
District Clerk
Webb District
2014CVF001048 Dl
NO. 2014CVF001048-DI
ALMA PENA, § iN THE DISTRICT COURT
Plaintiff §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND BECKY §
LANIER, §
Defendants § 49TH JUDICIAL DISTRICT
,
’
4 JPROTECT1VE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced or exchanged in this litigation, and that the following provisions,
Texas Rules
limitations, and prohibitions are appropriate pursuant to and in conformity with the
of Civil Procedure. Therefore, it is hereby ORDER.ED that:
of this
I. All Confidential Information produced or exchanged in the course
of this
litigation shall be used solely for the purpose of the preparation and trial
p,’Z..t 4
‘-el%
/
&1c+c\ 4,,c(ji litigation against State Farm Lloyds (including its employees)
yees) that
kLl Pie4r (“Defendants”) or any third party adjusting firm (including its emplo
1 (.j— iii
(?fl
adjusted this claim and for no other purpose. Confidential Information, or
i, ist tti
extracts, summaries, or information derived from Confidential Inform
ation, shall
1
b
of this Order.
of sf;4(. r,f•( not be disclosed to any person except in accordance with the terms
(ftJ
15 as reasonably
-I.e Confidential Information may only be copied or reproduced
1fo?e4l1 necessary for use solely in this litigation.
.4(k.l ç#1bL4S
1
;
3
.
of any type
.
-‘
2. “Confidential Information,” as used herein, means any information
“Confidential” andJor “Trade Secret” by any of the
that is designated as
nically stored
producing or receiving parties, whether it is: a document, electro
a document, ESI,
information (“ESI”), or other material; information contained in
lBlT
or other material; information revealed during a deposition; information revealed
in an interrogatory answer or written responses to discovery information revealed
during a meet and confer, or otherwise in connection with formal or informal
discovery.
3. The disclosure of Confidential Information is restricted to Qualified Persons.
“Qualified Persons,” as used herein, means: the parties to this pending litigation
k
4 J
“(Z q; dt.f,( /.., irp —
(‘W•%ç
‘arr5lflWuU4 of a-wvathei cvcut on or about June 2OIiwWt1b-Gounty, fes— r4
their respective counsel; counsel’s staff; expert witnesses; outside service-
providers and consultants providing services related to document and ESI
ls
processing, hosting, review, and production; the Court; other court officia
(including court reporters); the trier of fact pursuant to a scaling order; and any
any
person so designated pursuant to paragraph 4 herein. If this Court so elects,
other person may be designated as a Qualified Person by order of this Court, after
notice to all parties and a hearing.
ential
4. Any party may serve a written request for authority to disclose Confid
for the
Information to a person who is not a Qualified Person on counsel
er,
designating party, and consent shall not be unreasonably withheld. Howev
e the
until said requesting party receives written consent to further disclos
shall not
Confidential Information, the further disclosure is hereby prohibited and
grants its
be made absent further order of this Court. If the designating party
under
consent, then the person granted consent shall become a Qualified Person
this Order.
—other
5. Counsel for each party shall provide a copy of this Order to any person
2
than the Court, court officials, or the trier of fact—who will receive Confidential
Information in connection with this litigation, and shall ailvise such person of the
scope and effect of the provisions of this Order and the possibility of punishment
by contempt for violation thereof. Further, before disclosing Confidential
Information to any person other than the Court, court officials, or the trier of
fact, counsel for the party disclosing the information shall obtain the written
acknowledgment of that person binding him or her to the terms of this Order. The
written acknowledgment shall be in the form of Exhibit A attached hereto.
Counsel for the disclosing party shalt retain the original written acknowledgment,
and furnish a copy of the signed written acknowledgment to the designating
party’s counsel within ten (10) business days.
g
6. Information shall be designated as Confidential Information within the meanin
the
of this Protective Order by following the protocol below that corresponds to
format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
ing
document and each subsequent Bates-stamped page thereof contain
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf Agree.fProt. Order” or
“Confidential Proprietary & Trale Secret/Produced Pursuant to a Conf
Agree./Prot. Order,” but not so as to obscure the content of the document.
b. For static image productions, by marking the first Bates-stamped page of
ing
the image and each subsequent Bates-stamped page thereof contain
Confidential Information with the following legend: “Confidential &
3
Proprietary/Produced Pursuant to a ConE Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a ConE
Agree.IProt. Order,” but not so as to obscure the content of the image.
c. For native file format productions, by prominently labeling the delivery
media for ESI designated as Confidential information as follows:
“Confidential & Proprietary/Produced Pursuant to a ConE Agree.fProt.
Order” or “Confidential Proprietary & Trade Secret/Produced Pursuant to
a ConE AgreeiProt. Order.” In addition, at the election of the producing
party, the electronic fi’e may have appended to the file’s name
(immediately following its Bates identifier) the following protective
legend:
“CONFIDENTIAL-SUBJJO_PROTECTIVEJ)RDERJN_CAUSE_[insert #1.”
When any file so designated is converted to a hard-copy document or
static image for any purpose, the document or image shall bear on each
page a protective legend as described in 6.a. and 6.b. above. If a native
file containing Confidential information is used during a deposition, meet
and confer, trial, or is otherwise disclosed post-production, the party
introducing, referencing, or submitting the native file must append to the
ive
file’s name (immediately following its Bates identifier) the protect
legend:
“CONFEDENTIAL-SUBJTO_PROTECTIVE_ORDER_IN_CAUSEjinsert
#j” if
such legend does not already appear in the file name. Any party using a
native file containing Confidential Information in a deposition, hearing, or
in
at trial must indicate the designation on the record so that it is reflected
4
the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may
place on any hard-copy documents that are subject to this Protective Order
watermarks or seals to indicate the document is subject to a Protective
Order and is produced under the specific cause number.
7. Information previously produced during this litigation and not already marked as
Confidential Information shall be retroactively designated within thirty (30) days
of entry of this Order by providing written notice to the receiving parties of the
Bates identifier or other identifying characteristics for the Confidential
Information.
a. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
)
designated information, or alternately (upon the agreement of the parties
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, andlor (ii) with respect to ESI, take such reasonable
steps as will reliably identifS’ the item(s) as having been designated as
Confidential Information.
t
b. Information that is unintentionally or inadvertently produced withou
being designated as Confidential Information may be retroactively
7.a.
designated by the producing party in the manner describe in paragraph
5
above. If a retroactive designation is provided to the receiving party in
accordance with Texas Rule of Civil Procedure 193.3(d) the receiving
party must (i) make no further disclosure of such designated information
except as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated information of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No party shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
8, If Confidential Information is inadvertently disclosed to a person who is not a
Qualified Person, the disclosing party shall immediately upon discovery of the
inadvertent disclosure, send a written demand to the non-Qualified Person
demanding the immediate return and/or destruction of the inadvertently disclosed
Confidential Information, all copies made, and all notes that reproduce, copy, or
otherwise contain information derived from Confidential Information. Further the
disclosing party shall send written notice to the designating party’s counsel
providing:
a. The names and addresses of the entity or individual to whom the
Confidential Information was inadvertently disclosed.
b. The date of thc disclosure.
c. A copy of the notice and demand sent to the entity or individual that
inadvertently received the Confidential Information.
6
9. To the extent that the parties produce information received from non-parties that
the non-parties have designated as “confidential” such information shall be treated
as Confidential information in accordance with the terms of this Protective Order.
a. With respect to any document, ESI, or other material that is produced or
disclosed by a non-party, any party may designate such information as
Confidential Information within thirty (30) days of actual knowledge of
the production or disclosure, or such other time as may be agreed upon by
the parties.
b. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, and/or (ii) with respect to ES1, take such reasonable
steps as will reliably identify the item(s) as having been designated as
Confidential Information.
c. Upon notice of designation pursuant to this Paragraph, the parties also
shall: (i) make no further disclosure of such designated information except
as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated information of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
7
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No person shalT
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
d. The parties shall serve a copy of this Order simultaneously with any
discovery request made to a non-party.
10. Deposition testimony is Confidential Information under the terms of this Order
only if counsel for a party advises the court reporter and opposing counsel of that
designation at the deposition, or by written designation to all parties and the court
reporter within thirty (30) business days after receiving the deposition transcript.
All deposition transcripts shall be considered Confidential Information until thirty
(30) days following the receipt of the deposition transcript. In the event testimony
is designated as Confidential Information, the court reporter shall note the
designation on the record, shall separately transcribe those portions of the
testimony, and shall mark the face of such portion of the transcript as
“Confidential Information.” The parties may use Confidential Information during
any deposition, provided:
a. The witness is apprised of the terms of this Order and executes the
acknowledgment attached hereto as Exhibit A.
b. The room is first cleared of all persons who are not Qualified Persons.
II In the case of interrogatory answers, responses to request for production, and
responses to requests for admissions, the designation of Confidential Information
will be made by means of a statement in the answers or responses specifying that
8
the answers or responses or specific parts thereof are designated as Confidential
Information. A producing party shall place the following legend on each page of
interrogatory answers or responses to requests for admission: “Contains
Confidential Information.”
12. Confidential Information disclosed during a meet and confer or otherwise
exchanged in informal discovery, shall be protected pursuant to this Order if
counsel for the disclosing party advises the receiving party the information is
Confidential Information, lithe Confidential Information disclosed during a meet
and confer or otherwise exchanged in infonnal discovery is in the form of hard
copy documents, static images, or native files, that information shall be
designated as Confidential Information pursuant to paragraphs 6 a,, b., and/or c.
above, depending on the format of the materials introduced.
13. If a receiving party makes a good-faith determination that any materials
designated Confidential Information are not in fact “confidential” or “trade
secret,” the receiving party may request that a designating party rescind the
designation. Such requests shall not be rejected absent a good-faith determination
by the designating party that the Confidential Information is entitled to protection.
14. After making a good-faith effort to resolve any disputes regarding whether any
designated materials constitute Confidential Information, counsel of the party or
parties receiving the Confidential Information may challenge such designation of
all or any portion thereof by providing written notice of the challenge to the
designating party’s counsel. The designating party shall have thirty (30) days
from the date of receipt of a written challenge to file a motion for specific
9
protection with regard to any Confidential Information in dispute. If the party or
parties producing the Confidential Information does not timely file a motion for
specific protection, then the Confidential Information in dispute shall no longer be
subject to confidential treatment as provided in this Order,
15. If a timely motion for specific protection is filed, any disputed Confidential
Information will remain subject to this Order until a contrary determination is
made by the Court. At any hearing the designating party shall have the burden to
establish that party’s right to protection as if this Order did not exist. A party’s
failure to challenge the Confidential Information designation of any documents,
ES!, information, or testimony does not constitute an admission that the
document, ES!. information or testimony is, in fact, sensitive, confidential, or
proprietary. No party waives its right to contend at trial or hearing that such
document, ESI, information or testimony is not sensitive, confidential, privileged
or proprietary, provided the party provides notice of intention to do so at least
twenty (20) days before such trial or hearing.
16. Any papers filed with the Court in this action that make reference to Confidential
Information, or contain extracts, summaries, or information derived therefrom,
shall be considered Confidential Information and shall be governed by the terms
of this Order. These papers shall be filed under seal and shall remain sealed with
the District Clerk’s Office so long as the materials retain their status as
Confidential Information.
17. Pursuant to the agreement of the parties no disclosure, production, or exchange of
t
information in this case shall constitute a waiver of any applicable attorney-clien
10
privilege or of any applicable work product protection in this or any other federal
or state proceeding. This Protective Order applies to any information disclosed,
exchanged, produced, or discussed — whether intentionally or inadvertently
among the parties, their counsel and/or any agents (such as vendors and experts)
in the course of this litigation. Upon learning of a production of privileged or
work product protected information, the producing party shall within ten (10)
days give all counsel of record notice of the production pursuant to Texas Rule of
Civil Procedure 193.3(d). The receiving party must promptly return, sequester or
destroy the produced information and all copies and destroy any notes that
reproduce, copy, or otherwise disclose the substance of the privileged or work
product protected information.
18. Further, production pursuant to this Protective Order shall not be deemed a waiver
of:
a. Any party’s right to object to any discovery requests on any ground.
b. Any party’s right to seek an order compelling discovery with respect to
any discovery request.
c. Any party’s use and review of its own Confidential Information in its sole
and complete discretion.
d. The status of any material as a trade secret.
19. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
‘J Yb” es-4ays if]
after the final resolution of this litigation, the
20. Within %rty fly 43
plaintiffIs) shall return or destroy Confidential Information they received during
11
_____
__________
this litigation. As to those materials that contain or reflect Confidential
Information, but that constitute or reflect the plaintiff(s) counsel’s own work
product, counsel for the plaintiffs) are entitled to retain such work product in
their files in accordance with the provisions of this Protective Order, so long as
the work product is clearly marked to reflect that it contains information subject
to this Protective Order. Plaintiff’s counsel is entitled to retain pleadings,
affidavits, motions, briefs, other papers filed with the Court, deposition
transcripts, and the trial record even if such materials contain Confidential
Information, so long as such materials are clearly marked to reflect that they
contain information subject to this Protective Order and are maintained in
accordance with the provisions of this Protective Order. Plaintiff’s counsel shall
certify in writing compliance with the provision of this paragraph after forty-five
(45) business days after the final resolution of this litigation.
or vacated
This Order shall remain in effect unless or until amended, altered, modified,
filed with the Court,
by the Court or by the written agreement of all parties to this action
pursuant to the Texas Rules of Civil Procedure.
ITISSOORDEREDthis dayof
JUDGE PRESIDiNG
NO. 2014CVF001048-Dl
ALMA PENA, § IN THE DISTRICT COURT
Plaintiff §
§
VS. § OF WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND BECKY §
LANIER, §
Defendants § 49TH JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
4
u i ‘(J T, 10 . in order to be provided access to information
designated as Confidential Information under the Protective Order entered in Cause No.
2014CVF001048-Dl represents and agrees as follows:
1. I have been provided with a copy of the Protective Order entered by the Court in
the above matter. I have reviewed said copy and I am familiar with its terms.
2. With regard to any and all Confidential Information to which I am given access in
connection with the above matter, I agree to be bound by the provisions of the
Protective Order.
3. I consent to the exercise of junsdiction over me by the Court with respect to the
Protective Order.
4. I agree that copies of this undertaking will be sent to counsel of record for all
parties in the above litigation.
;] //5
DA ED:
cog,qcel f,r 2
7
k
1
e(c:,
EXHIBIT A
Susan McRoberts
From: No-Reply@eFileTexas.gov
Sent: Tuesday, March 24, 2015 9:46 AM
To: Susan McRoberts
Subject: eFleTexas.gov Notification of Service
— - 4613315
Notification of Service
Envelope Number: 4613315
This is a notification of service for the filing listed. Please click the link below to retrieve the submitted
document.
Filing Details
Case Number 2014-CVF-001048-D-1
Case Style
Date/Time Submitted 3/24/2015 9:45:16 AM
Filing Type Proposed Order
Filed By Gina Ramirez
Other Service Contacts not associated with a party on the case:
Van Huseman (vhusemanhusemanstewart.com)
Service Contacts
Tiffany DeBolt (tdebolt(ãThusemanstewart,com)
Susan McRoberts (smcrobertshusemanstewart.com)
Document Details
https://efile.txcourts.qovNiewServiceDocuments.aspx?ADMlN0&SlD=9a9a74ad-
F’I 0 ampe d 7be2-4070-a9fd-f3bl b04ecc75&RlD=0ba8ecca.c35741 1 3-b5bb-b55eaefl al cc
OPY This link is active for 7 days.
Please do not reply to this email, It was generated automatically by eFileTexas.gov
TAB 12
OF THE RECORD
2015-05-27 05:15 49TH DISTRICT COURT 9565234234 >> ÷9566825275 P 2/2
CAUSE NO. 2014CVF0$ Dl
ALMA PENA, IN TIlE DISTRICT COURT
PlaintLff *
§
vs. 49th
JUDICIAL DISTRICT
§
STATE FARM LLOYDS ANT)
BECKY LAMER, §
Detndants § WEBB COUNTY, TEXAS
UNOPPOSED ORDER GRANTiNG MOTION OF ATTORNEYS
HUSEMAN & STEWART P.LL.C. TO WITHDRAW AND
FOR SUBSTITUTION OF COUNSEL FOR DEFENDANTS -
Came on to be heard the Unopposed Motion of Attorneys Husernan & Stewart P.LLC.,
including Van Huseman and Tiffany DeBolt to Withdraw as Attorneys of Record and for
Substitution of counsel for Defendants. The Court, having considered the Motion, finds that it is
well taken.
IT [5, THEREFORE, ORDERED that the law finn of L-IIISEMAN & STEWART,
P.LJ..C. including attorneys Van Huseman and Tiffany Dc Bolt, are withdrawn us attorneys for
Defendants and are substituted by the law firm of ATLAS, HALL & RODRIGUEZ, LLP and
Sofia A. Rarnon and Dan K. Worthington as attorneys for Defendants.
SIGNED the day of A-k4 2015.
JUDGE PRESIDING
xc: J. Sitv- MltLyn, ‘flIE MOS-rYN LAW FIRM, 38)0 Wcg Ala,xm Sire, riotojon, T u 7027: (7)3) 861-6616:
.
Attorney Cur PluintiCIi
Vto Husemno and Tiffany DcBnh, HUSEMAN & SThWAR’L’, 6)5 N. Upper Broadway, Suite 2
Fax; 361-883-0210, id u.’c,I,atotes,II.rn,n. Aooi’ney4 for Defendanb.
Corpuschrist),
TX 78401-0781;
Sofut P Rauxus. Dan K. Worthington, Elizabeth S. Ctntu, ATLAS, ETALL & RODKIOUEZ, LU . 818 West Pecan Boulevard,
5
McA)k’n. Tuxto 78501; Iax: (956) 6116-6109; srstnnn88aiIshu1l’oi;L dlcw@atlss)uhl,Lorn. C thiis)slat1l,p; Attorneys mr
Dcfcndsnis,
Received May—27—2015 10:OOag From—4ITH DISTRICT COURT To—ATLAS & HALL L.L.P. Page 002
TAB 13
OF THE RECORD
2015-05-27 05:10 49TH DISTRICT COURT 9565234234 >> ÷9566825275 P 2/2
CAUSE NO. 2014CVFOOI (62 Dl
RALJL RODRIGUEZ AND NOEMI * IN THE DISTRICT COURT
RODRIGUEZ, *
Phiintiffs §
1h
49
§ JUDICIAL DISTRICT
vs. *
STATE FARM LLOYDS AND §
FELIPE FARIAS, *
Defendants WEBB COUNTY, TEXAS
ORDER GRANTING UNOPPOSED MOTION OF ATTORNEYS
RUSEMAN & STEWART P.LLC. TO WITHDRAW AND
FOR SUBSTITUTION OF COUNSEL FOR DEFENDANTS
Caine on to be heard the Unopposed Motion of Attorneys Husernan & Stewart P.LLC.,
including Van Huseman and Tiffany DeBolt to Withdraw as Attorneys of Record and for
Substitution of counsel for Defendants. The Court, having considered the Motion, finds that it is
well taken.
IT IS, THEREPORE, ORDERED that the law firm of HUSEMAN & STEWART,
P.L.LC. including attorneys Van Huseinan and Tiffany De Bolt, are withdrawn as attorneys for
Defendants and are substituted by the law firm of ATLAS, HALL & RODRIGUEZ. LLP and
Sofia A. Ranion and Dan K. Worthington as attorneys for Defendants.
SIGNED (he 2. day of __ C-f 2015.
JUDGE PRESIDING
C: i. Steve Mottyn, ThB MOSTYN LAW FIRM. 3510 Weal Alabama Stnttt, Iloueton. 02 Faa: (713) 861-6616;
p.nlock.IJ,nyajawi!an; Altornoy for PIliiiiffs.
Van Hu,cmjuz und ‘Tiffany DeBolt, HUSEMAN & SThWAR’I’, 615 N, Upper Broadway, Suite Curpuu Cbsiuti. TX 15401-0781
Faa: 361.883-0210, IdbulE@h majj8!pwur.eom, Attorneys fo Palendunis.
Sofia A. Ramon, Dan K. Worthington, Elizabeth S. CaMu, ATLAS. HALL & RUDRLt3UEZ, LU’, 818 West Pecan Soulevani,
McAIlen, Tetius 18501; Fax: i056) 6$6-6I08 501 nn@r1asflajjctini. g’dkih&Leom. ecsnl dIaahatI,’-, Aw.ancys for
DcfcndarlLc.
R6ceived May—27—2015 09:S5arn Fro,n—4OTH DISTRICT COURT To—ATLAS & HALL L.L.P. Pags 002
TAB 14
OF THE RECORD
Filed
6/16/2015 2:29:23 PM
Esther Degollado
District Clerk
Webb District
Michelle Garza
CAUSE NO. 2014-CVF-001048-D1 2014-CVF-001048-D1
ALMA PENA, § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER, §
Defendants. § 49TH JUDICIAL DISTRICT
PLAINTIFF’S FIRST AMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Alma Pena (“Plaintiff”), and files this Plaintiff’s First Amended Petition,
complaining of State Farm Lloyds (“State Farm”), Becky Lanier (“Lanier”), and Ray Padilla
(“Padilla”) (collectively referred to as “Defendants”), and for cause of action, Plaintiff would
respectfully show this Honorable Court the following:
DISCOVERY CONTROL PLAN
1. Plaintiff intends for discovery to be conducted under Level 3 of Rule 190 of the Texas
Rules of Civil Procedure. This case involves complex issues and will require extensive
discovery. Therefore, Plaintiff will ask the Court to order that discovery be conducted in
accordance with a discovery control plan tailored to the particular circumstances of this
suit.
PARTIES
2. Plaintiff Alma Pena is an individual residing in Webb County, Texas.
3. Defendant State Farm is an insurance company engaging in the business of insurance in
the State of Texas. This defendant has appeared and answered herein. No citation is
requested at this time.
4. Defendant Becky Lanier is an individual residing in and domiciled in the State of Texas.
This defendant has appeared and answered herein. No citation is requested at this time.
5. Defendant Ray Padilla is an individual residing in and domiciled in the State of Texas.
This defendant may be served with personal process by a process server at his place of
residence at 3718 Prince George Drive, San Antonio, Texas 78230.
JURISDICTION
6. The Court has jurisdiction over this cause of action because the amount in controversy is
within the jurisdictional limits of the Court. Plaintiff is seeking monetary relief over
$200,000 but not more than $1,000,000. Plaintiff reserves the right to amend her petition
during and/or after the discovery process.
7. The Court has jurisdiction over Defendant State Farm because this defendant is a foreign
insurance company that engages in the business of insurance in the State of Texas, and
Plaintiff’s causes of action arise out of this defendant’s business activities in the State of
Texas.
8. The Court has jurisdiction over Defendant Lanier because this defendant engages in the
business of adjusting insurance claims in the State of Texas, and Plaintiff’s causes of
action arise out of this defendant’s business activities in the State of Texas.
9. The Court has jurisdiction over Defendant Padilla because this defendant engages in the
business of adjusting insurance claims in the State of Texas, and Plaintiff’s causes of
action arise out of this defendant’s business activities in the State of Texas.
Page 2
VENUE
10. Venue is proper in Webb County, Texas, because the insured property is situated in
Webb County, Texas. TEX. CIV. PRAC. & REM. CODE §15.032.
FACTS
11. Plaintiff is the owners of a Texas Homeowners’ Insurance Policy (hereinafter referred to
as “the Policy”), which was issued by State Farm.
12. Plaintiff owns the insured property, which is specifically located at 1014 Reagan Dr.,
Laredo, Texas 78046, in Webb County (hereinafter referred to as “the Property”).
13. State Farm sold the Policy insuring the Property to Plaintiff.
14. On or about June 7, 2013, a hail storm and/or windstorm struck Webb County, Texas,
causing severe damage to homes and businesses throughout the area, including Plaintiff’s
residence (“the Storm”). Specifically, Plaintiff’s roof sustained extensive damage during
the Storm. Water intrusion through the roof caused significant damage throughout the
entire home including, but not limited to, the home’s ceilings, walls, insulation, and
flooring. Plaintiff’s home also sustained substantial structural and exterior damage
during the Storm, as well as damage to the play set. After the Storm, Plaintiff filed a
claim with her insurance company, State Farm, for the damages to her home caused by
the Storm.
15. Plaintiff submitted a claim to State Farm against the Policy for Other Structure Damage,
Roof Damage, Structural Damage, Water Damage, and Wind Damage the Property
sustained as a result of the Storm.
Page 3
16. Plaintiff asked that State Farm cover the cost of repairs to the Property pursuant to the
Policy, including but not limited to, repair and/or replacement of the roof and play set and
repair of the and interior water damages, pursuant to the Policy.
17. Defendant State Farm assigned Defendant Lanier as the adjuster on the claim. The
adjuster assigned to Plaintiff’s claim was improperly trained and failed to perform a
thorough investigation of Plaintiff’s claim. On or about December 3, 2013, Lanier
conducted a substandard inspection of Plaintiff’s Property. For example, Lanier spent a
mere fifteen (15) minutes inspecting Plaintiff’s entire Property for Storm damages.
Furthermore, Lanier was uncooperative and quick to discount any damages that Plaintiff
pointed out. The inadequacy of Lanier’s inspection is further evidenced by her report,
which failed to include all of Plaintiff’s Storm damages noted upon inspection. For
example, Lanier failed to include many of the damages to the home’s roof and interior, as
well as the damages to Plaintiff’s play set. Moreover, the damages that Lanier actually
included in her report were grossly undervalued, in part because she both underestimated
and undervalued the cost of materials required for necessary repairs, incorrectly applied
material sales tax, and failed to include contractor’s overhead and profit. Ultimately,
Lanier’s estimate did not allow adequate funds to cover the cost of repairs to all the
damages sustained.
18. Padilla also actively participated in the handling of Plaintiff’s claim but failed to conduct
a reasonable investigation. Specifically, he reviewed reports, documents and/or
information regarding the claim. Defendant Padilla also failed to thoroughly review and
properly oversee Lanier’s work, ultimately approving and/or submitting an improper
adjustment and an inadequate resolution to Plaintiff’s claim. Had Defendant Padilla
Page 4
performed even a cursory review of Lanier’s work on Plaintiff’s claim, it would have
been clear that Plaintiff’s claim was completely mishandled. Unfortunately for Plaintiff,
this did not happen. Lanier’s and Padilla’s inadequate investigation was relied upon by
Defendant State Farm in this action and resulted in Plaintiff’s claim being undervalued
and underpaid.
19. Padilla failed to adequately supervise Lanier resulting in the unreasonable investigation
and improper handling of Plaintiff’s claim. Moreover, State Farm and Padilla, along with
other State Farm personnel, failed to thoroughly review and properly oversee the work of
the assigned claims representative and adjusters, including Defendant Lanier, ultimately
approving an improper adjustment and an inadequate, unfair settlement of Plaintiff’s
claim. As a result of this unreasonable investigation, Plaintiff was considerably
underpaid on her claim and has suffered damages.
20. Together, Defendants State Farm, Lanier, and Padilla set out to deny and/or underpay on
properly covered damages. As a result of this unreasonable investigation, including the
under-scoping of Plaintiff’s Storm damages during the investigation and failure to
provide full coverage for the damages sustained, Plaintiff’s claim was improperly
adjusted, and she was denied adequate and sufficient payment to repair her home. The
mishandling of Plaintiff’s claim has also caused a delay in her ability to fully repair her
home, which has resulted in additional damages. To date, Plaintiff has yet to receive the
full payment to which she is entitled under the Policy.
21. As detailed in the paragraphs below, State Farm wrongfully denied Plaintiff’s claim for
repairs of the Property, even though the Policy provided coverage for losses such as those
suffered by Plaintiff. Furthermore, State Farm underpaid some of Plaintiff’s claims by
Page 5
not providing full coverage for the damages sustained by Plaintiff, as well as under-
scoping the damages during its investigation.
22. To date, State Farm continues to delay in the payment for the damages to the property.
As such, Plaintiff has not been paid in full for the damages to her home.
23. Defendant State Farm failed to perform its contractual duties to adequately compensate
Plaintiff under the terms of the Policy. Specifically, it refused to pay the full proceeds of
the Policy, although due demand was made for proceeds to be paid in an amount
sufficient to cover the damaged property, and all conditions precedent to recovery upon
the Policy had been carried out and accomplished by Plaintiff. State Farm’s conduct
constitutes a breach of the insurance contract between State Farm and Plaintiff.
24. Defendants State Farm, Lanier, and Padilla misrepresented to Plaintiff that the damage to
the Property was not covered under the Policy, even though the damage was caused by a
covered occurrence. Defendants State Farm’s, Lanier’s and Padilla’s conduct constitutes
a violation of the Texas Insurance Code, Unfair Settlement Practices. TEX. INS. CODE
§541.060(a)(1).
25. Defendants State Farm, Lanier, and Padilla failed to make an attempt to settle Plaintiff’s
claim in a fair manner, although they were aware of their liability to Plaintiff under the
Policy. Defendants State Farm’s, Lanier’s, and Padilla’s conduct constitutes a violation
of the Texas Insurance Code, Unfair Settlement Practices. TEX. INS. CODE
§541.060(a)(2)(A).
26. Defendants State Farm, Lanier, and Padilla failed to explain to Plaintiff the reasons for
their offer of an inadequate settlement. Specifically, Defendants State Farm, Lanier, and
Padilla failed to offer Plaintiff adequate compensation, without any explanation why full
Page 6
payment was not being made. Furthermore, Defendants State Farm, Lanier, and Padilla
did not communicate that any future settlements or payments would be forthcoming to
pay for the entire losses covered under the Policy, nor did they provide any explanation
for the failure to adequately settle Plaintiff’s claim. Defendants State Farm’s, Lanier’s,
and Padilla’s conduct is a violation of the Texas Insurance Code, Unfair Settlement
Practices. TEX. INS. CODE §541.060(a)(3).
27. Defendants State Farm, Lanier, and Padilla failed to affirm or deny coverage of
Plaintiff’s claim within a reasonable time. Specifically, Plaintiff did not receive timely
indication of acceptance or rejection, regarding the full and entire claim, in writing from
Defendants State Farm, Lanier, and Padilla. Defendants State Farm’s, Lanier’s, and
Padilla’s conduct constitutes a violation of the Texas Insurance Code, Unfair Settlement
Practices. TEX. INS. CODE §541.060(a)(4).
28. Defendants State Farm, Lanier, and Padilla refused to fully compensate Plaintiff under
the terms of the Policy, even though Defendants State Farm, Lanier, and Padilla failed to
conduct a reasonable investigation. Specifically, Defendants State Farm, Lanier, and
Padilla performed an outcome-oriented investigation of Plaintiff’s claim, which resulted
in a biased, unfair, and inequitable evaluation of Plaintiff’s losses on the Property.
Defendants State Farm’s, Lanier’s, and Padilla’s conduct constitutes a violation of the
Texas Insurance Code, Unfair Settlement Practices. TEX. INS. CODE §541.060(a)(7).
29. Defendant State Farm failed to meet its obligations under the Texas Insurance Code
regarding timely acknowledging Plaintiff’s claim, beginning an investigation of
Plaintiff’s claim, and requesting all information reasonably necessary to investigate
Plaintiff’s claim, within the statutorily mandated time of receiving notice of Plaintiff’s
Page 7
claim. State Farm’s conduct constitutes a violation of the Texas Insurance Code, Prompt
Payment of Claims. TEX. INS. CODE §542.055.
30. Defendant State Farm failed to accept or deny Plaintiff’s full and entire claim within the
statutorily mandated time of receiving all necessary information. State Farm’s conduct
constitutes a violation of the Texas Insurance Code, Prompt Payment of Claims. TEX.
INS. CODE §542.056.
31. Defendant State Farm failed to meet its obligations under the Texas Insurance Code
regarding payment of claim without delay. Specifically, it has delayed full payment of
Plaintiff’s claim longer than allowed, and, to date, Plaintiff has not received full payment
for her claim. State Farm’s conduct constitutes a violation of the Texas Insurance Code,
Prompt Payment of Claims. TEX. INS. CODE §542.058.
32. From and after the time Plaintiff’s claim was presented to Defendant State Farm, the
liability of State Farm to pay the full claim in accordance with the terms of the Policy
was reasonably clear. However, State Farm has refused to pay Plaintiff in full, despite
there being no basis whatsoever on which a reasonable insurance company would have
relied to deny the full payment. State Farm’s conduct constitutes a breach of the common
law duty of good faith and fair dealing.
33. Defendants State Farm, Lanier, and Padilla knowingly or recklessly made false
representations, as described above, as to material facts and/or knowingly concealed all
or part of material information from Plaintiff.
34. As a result of Defendants State Farm’s, Lanier’s, Padilla’s wrongful acts and omissions,
Plaintiff was forced to retain the professional services of the attorney and law firm who
are representing her with respect to these causes of action.
Page 8
35. Plaintiff’s experience is not an isolated case. The acts and omissions State Farm
committed in this case, or similar acts and omissions, occur with such frequency that they
constitute a general business practice of State Farm with regard to handling these types of
claims. State Farm's entire process is unfairly designed to reach favorable outcomes for
the company at the expense of the policyholders.
CAUSES OF ACTION:
CAUSES OF ACTION AGAINST LANIER AND PADILLA
NONCOMPLIANCE WITH TEXAS INSURANCE CODE:
UNFAIR SETTLEMENT PRACTICES
36. Defendant State Farm assigned Defendant Lanier and Padilla to adjust the claim.
Defendants Lanier and Padilla were improperly trained to handle claims of this nature
and performed an unreasonable investigation of Plaintiff’s damages. During the
investigation, the adjusters failed to properly assess Plaintiff’s hail storm and/or
windstorm damages. The adjusters also omitted covered damages from their reports,
including many of Plaintiff’s interior damages. In addition, the damages that the
adjusters did include in the estimate were severely underestimated.
37. Defendants Lanier’s and Padilla’s conduct constitutes multiple violations of the Texas
Insurance Code, Unfair Settlement Practices. TEX. INS. CODE §541.060(a). All
violations under this article are made actionable by TEX. INS. CODE §541.151.
38. Defendants Lanier and Padilla are each individually liable for their unfair and deceptive
acts, irrespective of the fact each was acting on behalf of State Farm, because each is a
“person” as defined by TEX. INS. CODE §541.002(2). The term “person” is defined as
“any individual, corporation, association, partnership, reciprocal or interinsurance
exchange, Lloyds plan, fraternal benefit society, or other legal entity engaged in the
Page 9
business of insurance, including an agent, broker, adjuster or life and health insurance
counselor.” TEX. INS. CODE §541.002(2) (emphasis added). (See also Liberty Mutual
Insurance Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998) (holding
an insurance company employee to be a “person” for the purpose of bringing a cause of
action against him or her under the Texas Insurance Code and subjecting him or her to
individual liability)).
39. Falsehoods and misrepresentations may be communicated by actions as well as by the
spoken word; therefore, deceptive conduct is equivalent to a verbal representation.
Defendants Lanier’s and Padilla’s misrepresentations by means of deceptive conduct
include, but are not limited to: (1) failing to conduct a reasonable inspection and
investigation of Plaintiff’s damages; (2) stating that Plaintiff’s damages were less severe
than they in fact were; (3) using their own statements about the non-severity of the
damage as a basis for denying properly covered damages and/or underpaying damages;
and (4) failing to provide an adequate explanation for the inadequate compensation
Plaintiff received. Defendants Lanier’s and Padilla’s unfair settlement practice, as
described above and the example given herein, of misrepresenting to Plaintiff material
facts relating to the coverage at issue, constitutes an unfair method of competition and an
unfair and deceptive act or practice in the business of insurance. TEX. INS. CODE
§541.060(a)(1).
40. Defendants Lanier’s and Padilla’s unfair settlement practice, as described above, of
failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of the
claim, even though liability under the Policy is reasonably clear, constitutes an unfair
Page 10
method of competition and an unfair and deceptive act or practice in the business of
insurance. TEX. INS. CODE §541.060(a)(2)(A).
41. Defendants Lanier and Padilla failed to explain to Plaintiff the reasons for their offer of
an inadequate settlement. Specifically, Defendants Lanier and Padilla failed to offer
Plaintiff adequate compensation without any explanation as to why full payment was not
being made. Furthermore, Defendants did not communicate that any future settlements
or payments would be forthcoming to pay for the entire losses covered under the Policy,
nor did they provide any explanation for the failure to adequately settle Plaintiff’s claim.
The unfair settlement practice of Defendants Lanier and Padilla as described above, of
failing to promptly provide Plaintiff with a reasonable explanation of the basis in the
Policy, in relation to the facts or applicable law, for the offer of a compromise settlement
of Plaintiff’s claim, constitutes an unfair method of competition and an unfair and
deceptive act or practice in the business of insurance. TEX. INS. CODE §541.060(a)(3).
42. Defendants Lanier’s and Padilla’s unfair settlement practice, as described above, of
failing within a reasonable time to affirm or deny coverage of the claim to Plaintiff, or to
submit a reservation of rights to Plaintiff, constitutes an unfair method of competition and
an unfair and deceptive act or practice in the business of insurance. TEX. INS. CODE
§541.060(a)(4).
43. Defendants Lanier and Padilla did not properly inspect the Property and failed to account
for and/or undervalued many of Plaintiff’s exterior and interior damages, although
reported by Plaintiff to State Farm. Defendants Lanier’s and Padilla’s unfair settlement
practice, as described above, of refusing to pay Plaintiff’s claim without conducting a
Page 11
reasonable investigation, constitutes an unfair method of competition and an unfair and
deceptive act or practice in the business of insurance. TEX. INS. CODE §541.060(a)(7).
CAUSES OF ACTION AGAINST ALL DEFENDANTS
44. Plaintiff is not making any claims for relief under federal law.
FRAUD
45. Defendants State Farm, Lanier, and Padilla are liable to Plaintiff for common law fraud.
46. Each and every one of the representations, as described above, concerned material facts
for the reason that absent such representations, Plaintiff would not have acted as she did,
and which Defendants State Farm, Lanier, and Padilla knew were false or made
recklessly without any knowledge of their truth as a positive assertion.
47. The statements were made with the intention that they should be acted upon by Plaintiff,
who in turn acted in reliance upon the statements, thereby causing Plaintiff to suffer
injury and constituting common law fraud.
CONSPIRACY TO COMMIT FRAUD
48. Defendants State Farm, Lanier, and Padilla are liable to Plaintiff for conspiracy to
commit fraud. Defendants State Farm, Lanier, and Padilla were members of a
combination of two or more persons whose object was to accomplish an unlawful
purpose or a lawful purpose by unlawful means. In reaching a meeting of the minds
regarding the course of action to be taken against Plaintiff, Defendants State Farm,
Lanier, and Padilla committed an unlawful, overt act to further the object or course of
action. Plaintiff suffered injury as a proximate result.
Page 12
CAUSES OF ACTION AGAINST STATE FARM ONLY
49. Defendant State Farm is liable to Plaintiff for intentional breach of contract, as well as
intentional violations of the Texas Insurance Code, and intentional breach of the common
law duty of good faith and fair dealing.
BREACH OF CONTRACT
50. Defendant State Farm’s conduct constitutes a breach of the insurance contract made
between State Farm and Plaintiff.
51. Defendant State Farm’s failure and/or refusal, as described above, to pay adequate
compensation as it is obligated to do under the terms of the Policy in question, and under
the laws of the State of Texas, constitutes a breach of State Farm’s insurance contract
with Plaintiff.
NONCOMPLIANCE WITH TEXAS INSURANCE CODE:
UNFAIR SETTLEMENT PRACTICES
52. Defendant State Farm’s conduct constitutes multiple violations of the Texas Insurance
Code, Unfair Settlement Practices. TEX. INS. CODE §541.060(a). All violations under
this article are made actionable by TEX. INS. CODE §541.151.
53. Defendant State Farm’s unfair settlement practice, as described above, of misrepresenting
to Plaintiff material facts relating to the coverage at issue, constitutes an unfair method of
competition and an unfair and deceptive act or practice in the business of insurance. TEX.
INS. CODE §541.060(a)(1).
54. Defendant State Farm’s unfair settlement practice, as described above, of failing to
attempt in good faith to effectuate a prompt, fair, and equitable settlement of the claim,
even though State Farm’s liability under the Policy was reasonably clear, constitutes an
Page 13
unfair method of competition and an unfair and deceptive act or practice in the business
of insurance. TEX. INS. CODE §541.060(a)(2)(A).
55. Defendant State Farm’s unfair settlement practice, as described above, of failing to
promptly provide Plaintiff with a reasonable explanation of the basis in the Policy, in
relation to the facts or applicable law, for its offer of a compromise settlement of the
claim, constitutes an unfair method of competition and an unfair and deceptive act or
practice in the business of insurance. TEX. INS. CODE §541.060(a)(3).
56. Defendant State Farm’s unfair settlement practice, as described above, of failing within a
reasonable time to affirm or deny coverage of the claim to Plaintiff, or to submit a
reservation of rights to Plaintiff, constitutes an unfair method of competition and an
unfair and deceptive act or practice in the business of insurance. TEX. INS. CODE
§541.060(a)(4).
57. Defendant State Farm’s unfair settlement practice, as described above, of refusing to pay
Plaintiff’s claim without conducting a reasonable investigation, constitutes an unfair
method of competition and an unfair and deceptive act or practice in the business of
insurance. TEX. INS. CODE §541.060(a)(7).
NONCOMPLIANCE WITH TEXAS INSURANCE CODE:
THE PROMPT PAYMENT OF CLAIMS
58. Defendant State Farm’s conduct constitutes multiple violations of the Texas Insurance
Code, Prompt Payment of Claims. All violations made under this article are made
actionable by TEX. INS. CODE §542.060.
59. Defendant State Farm’s failure to acknowledge receipt of Plaintiff’s claim, commence
investigation of the claim, and request from Plaintiff all items, statements, and forms that
it reasonably believed would be required within the applicable time constraints, as
Page 14
described above, constitutes a non-prompt payment of claims and a violation of TEX. INS.
CODE §542.055.
60. Defendant State Farm’s failure to notify Plaintiff in writing of its acceptance or rejection
of the claim within the applicable time constraints constitutes a non-prompt payment of
the claim. TEX. INS. CODE §542.056.
61. Defendant State Farm’s delay of the payment of Plaintiff’s claim following its receipt of
all items, statements, and forms reasonably requested and required, longer than the
amount of time provided for, as described above, constitutes a non-prompt payment of
the claim. TEX. INS. CODE §542.058.
ACTS CONSTITUTING ACTING AS AGENT
62. As referenced and described above, and further conduct throughout this litigation and
lawsuit, Lanier and Padilla are agents of State Farm based on their acts during the
handling of this claim, including inspections, adjustments, and aiding in adjusting a loss
for or on behalf of the insurer. TEX. INS. CODE §4001.051.
63. Separately, and/or in the alternative, as referenced and described above, State Farm
ratified the actions and conduct of Lanier and Padilla, including the completion of their
duties under the common law and statutory law.
BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING
64. Defendant State Farm’s conduct constitutes a breach of the common law duty of good
faith and fair dealing owed to insureds in insurance contracts.
65. Defendant State Farm’s failure, as described above, to adequately and reasonably
investigate and evaluate Plaintiff’s claim, although, at that time, State Farm knew or
Page 15
should have known by the exercise of reasonable diligence that its liability was
reasonably clear, constitutes a breach of the duty of good faith and fair dealing.
KNOWLEDGE
66. Each of the acts described above, together and singularly, was done “knowingly,” as that
term is used in the Texas Insurance Code, and was a producing cause of Plaintiff’s
damages described herein.
DAMAGES
67. Plaintiff would show that all of the aforementioned acts, taken together or singularly,
constitute the producing causes of the damages sustained by Plaintiff.
68. As previously mentioned, the damages caused by the June 7, 2013 hail storm and/or
windstorm have not been properly addressed or repaired in the months since the Storm,
causing further damages to the Property, and causing undue hardship and burden to
Plaintiff. These damages are a direct result of Defendants State Farm’s, Lanier’s, and
Padilla’s mishandling of Plaintiff’s claim in violation of the laws set forth above.
69. For breach of contract, Plaintiff is entitled to regain the benefit of her bargain, which is
the amount of her claim, together with attorney’s fees.
70. For noncompliance with the Texas Insurance Code, Unfair Settlement Practices, Plaintiff
is entitled to actual damages, which include the loss of the benefits that should have been
paid pursuant to the policy, mental anguish, court costs, and attorney's fees. For knowing
conduct of the acts described above, Plaintiff asks for three times her actual damages.
TEX. INS. CODE §541.152.
71. For noncompliance with Texas Insurance Code, Prompt Payment of Claims, Plaintiff is
entitled to the amount of her claim, as well as eighteen (18) percent interest per annum on
Page 16
the amount of such claim as damages, together with attorney's fees. TEX. INS. CODE
§542.060.
72. For breach of the common law duty of good faith and fair dealing, Plaintiff is entitled to
compensatory damages, including all forms of loss resulting from the insurer's breach of
duty, such as additional costs, economic hardship, losses due to nonpayment of the
amount the insurer owed, exemplary damages, and damages for emotional distress.
73. For fraud, Plaintiff is entitled to recover actual damages and exemplary damages for
knowingly fraudulent and malicious representations, along with attorney’s fees, interest,
and court costs.
74. For the prosecution and collection of this claim, Plaintiff has been compelled to engage
the services of the attorney whose name is subscribed to this pleading. Therefore,
Plaintiff is entitled to recover a sum for the reasonable and necessary services of
Plaintiff’s attorney in the preparation and trial of this action, including any appeals to the
Court of Appeals and/or the Supreme Court of Texas.
JURY DEMAND
75. Plaintiff previously requested that all causes of action alleged herein be tried before a jury
consisting of citizens residing in Webb County, Texas. Plaintiff has tendered the
appropriate jury fee.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that upon trial hereof, said
Plaintiff have and recover such sums as would reasonably and justly compensate her in
accordance with the rules of law and procedure, as to actual damages, treble damages under the
Texas Insurance Code, and all punitive and exemplary damages as may be found. In addition,
Page 17
Plaintiff requests the award of attorney’s fees for the trial and any appeal of this case, for all
costs of Court on her behalf expended, for prejudgment and postjudgment interest as allowed by
law, and for any other and further relief, either at law or in equity, to which she may show herself
justly entitled.
Respectfully submitted,
MOSTYN LAW
/s/ J. Steve Mostyn
J. Steve Mostyn
State Bar No. 00798389
rmsdocketefile@mostynlaw.com
3810 W. Alabama Street
Houston, Texas 77027
(713) 714-0000 (Office)
(713) 714-1111 (Facsimile)
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been forwarded to all
counsel of record on this 16th day of June, 2015 in accordance with the Rules of Civil Procedure.
/s/ J. Steve Mostyn
J. Steve Mostyn
Page 18
TAB 15
OF THE RECORD
Filed
6/16/2015 2:24:29 PM
Esther Degollado
District Clerk
Webb District
Michelle Garza
CAUSE NO. 2014-CVF-001162-D1 2014-CVF-001162-D1
RAUL RODRIGUEZ AND NOEMI § IN THE DISTRICT COURT OF
RODRIGUEZ, §
Plaintiffs, §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
FELIPE FARIAS, §
Defendants. § 49TH JUDICIAL DISTRICT
PLAINTIFFS’ FIRST AMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Raul Rodriguez and Noemi Rodriguez (“Plaintiffs”), and file this
Plaintiffs’ First Amended Petition, complaining of State Farm Lloyds (“State Farm”), Felipe
Farias (“Farias”), and Raymond Padilla (“Padilla”) (collectively referred to as “Defendants”),
and for cause of action, Plaintiffs would respectfully show this Honorable Court the following:
DISCOVERY CONTROL PLAN
1. Plaintiffs intend for discovery to be conducted under Level 3 of Rule 190 of the Texas
Rules of Civil Procedure. This case involves complex issues and will require extensive
discovery. Therefore, Plaintiffs will ask the Court to order that discovery be conducted in
accordance with a discovery control plan tailored to the particular circumstances of this
suit.
PARTIES
2. Plaintiffs Raul Rodriguez and Noemi Rodriguez are individuals residing in Webb
County, Texas.
3. Defendant State Farm is an insurance company engaging in the business of insurance in
the State of Texas. This defendant has appeared and answered. No citation is requested
at this time.
4. Defendant Felipe Farias is an individual residing in and domiciled in the State of Texas.
This defendant has appeared and answered. No citation is requested at this time.
5. Defendant Ray Padilla is an individual residing in and domiciled in the State of Texas.
This defendant may be served with personal process by a process server at his place of
residence at 3718 Prince George Drive, San Antonio, Texas 78230.
JURISDICTION
6. The Court has jurisdiction over this cause of action because the amount in controversy is
within the jurisdictional limits of the Court. Plaintiffs are seeking monetary relief over
$200,000 but not more than $1,000,000. Plaintiffs reserve the right to amend their
petition during and/or after the discovery process.
7. The Court has jurisdiction over Defendant State Farm because this defendant is a foreign
insurance company that engages in the business of insurance in the State of Texas, and
Plaintiffs’ causes of action arise out of this defendant’s business activities in the State of
Texas.
8. The Court has jurisdiction over Defendant Farias because this defendant engages in the
business of adjusting insurance claims in the State of Texas, and Plaintiffs’ causes of
action arise out of this defendant’s business activities in the State of Texas.
9. The Court has jurisdiction over Defendant Padilla because this defendant engages in the
business of adjusting insurance claims in the State of Texas, and Plaintiffs’ causes of
action arise out of this defendant’s business activities in the State of Texas.
Page 2
VENUE
10. Venue is proper in Webb County, Texas, because the insured property is situated in
Webb County, Texas. TEX. CIV. PRAC. & REM. CODE §15.032.
FACTS
11. Plaintiffs are the owners of a Texas Homeowners’ Insurance Policy (hereinafter referred
to as “the Policy”), which was issued by State Farm.
12. Plaintiffs own the insured property, which is specifically located at 3120 Zacatecas St.,
Laredo, Texas 78043, in Webb County (hereinafter referred to as “the Property”).
13. State Farm sold the Policy insuring the Property to Plaintiffs.
14. On or about June 7, 2013 and/or June 14, 2013, a hail storm and/or windstorm struck
Webb County, Texas, causing severe damage to homes and businesses throughout the
area, including Plaintiffs’ residence (collectively “the Storm”). Specifically, Plaintiffs’
roof sustained extensive damage during the Storm. Water intrusion through the roof
caused significant damage throughout the entire home including, but not limited to, the
home’s ceilings, walls, insulation, and flooring. Plaintiffs’ home also sustained
substantial structural and exterior damage during the Storm including, but not limited to,
the stucco siding. Shortly after the Storm, Plaintiffs filed a claim with their insurance
company, State Farm, for the damages to their home caused by the Storm.
15. Plaintiffs submitted a claim to State Farm against the Policy for Roof Damage, Structural
Damage, Water Damage, and Wind Damage the Property sustained as a result of the
Storm.
Page 3
16. Plaintiffs asked that State Farm cover the cost of repairs to the Property, including but not
limited to, repair and/or replacement of the roof and repair of the siding and interior water
damages, pursuant to the Policy.
17. Defendant State Farm assigned Defendants Farias and Padilla as the individual adjusters
on the claim. The adjusters assigned to Plaintiffs’ claim were improperly trained and
failed to perform a thorough investigation of Plaintiffs’ claim. On or about June 26,
2013, Farias conducted a substandard inspection of Plaintiffs’ Property. For example,
Farias spent a mere hour inspecting Plaintiffs’ entire Property for Storm damages. The
inadequacy of Farias’ inspection is further evidenced by his report, which failed to
include all of Plaintiffs’ Storm damages noted upon inspection. For example, Farias
failed to include the damages to the home’s roof and siding in his report. Moreover, the
damages that Farias actually included in his report were grossly undervalued, in part
because he both underestimated and undervalued the cost of materials required for
necessary repairs and incorrectly applied material sales tax. Ultimately, Farias’ estimate
did not allow adequate funds to cover the cost of repairs to all the damages sustained.
Farias’ inadequate investigation was relied upon by State Farm and Padilla in this action
and resulted in Plaintiffs’ claim being undervalued and underpaid.
18. Defendant Padilla also actively participated in the adjustment of Plaintiffs’ claim but
failed to conduct a reasonable investigation. Specifically, Padilla was the State Farm
manager assigned to Plaintiffs’ claim and reviewed reports, documents, and information
regarding the claim. Padilla approved Farias’ estimate, even though it failed to include
many of Plaintiffs’ damages, undervalued the damages it did include, and incorrectly
Page 4
applied material sales tax. Ultimately, Padilla failed to thoroughly review Farias’
assessment of the claim and approved an inadequate adjustment of Plaintiffs’ claim.
19. Together, Defendants State Farm, Farias, and Padilla set about to deny and/or underpay
on properly covered damages. As a result of these Defendants’ unreasonable
investigation of the claim, including not providing full coverage for the damages
sustained by Plaintiffs, as well as under-scoping the damages during their investigation
and thus denying adequate and sufficient payment to Plaintiffs to repair their home,
Plaintiffs’ claim was improperly adjusted. The mishandling of Plaintiffs’ claim has also
caused a delay in their ability to fully repair their home, which has resulted in additional
damages. To this date, Plaintiffs have yet to receive the full payment to which they are
entitled under the Policy.
20. As detailed in the paragraphs below, State Farm wrongfully denied Plaintiffs’ claim for
repairs of the Property, even though the Policy provided coverage for losses such as those
suffered by Plaintiffs. Furthermore, State Farm underpaid some of Plaintiffs’ claims by
not providing full coverage for the damages sustained by Plaintiffs, as well as under-
scoping the damages during its investigation.
21. To date, State Farm continues to delay in the payment for the damages to the Property.
As such, Plaintiffs have not been paid in full for the damages to their home.
22. Defendant State Farm failed to perform its contractual duties to adequately compensate
Plaintiffs under the terms of the Policy. Specifically, it refused to pay the full proceeds of
the Policy, although due demand was made for proceeds to be paid in an amount
sufficient to cover the damaged property, and all conditions precedent to recovery upon
Page 5
the Policy had been carried out and accomplished by Plaintiffs. State Farm’s conduct
constitutes a breach of the insurance contract between State Farm and Plaintiffs.
23. Defendants State Farm, Farias, and Padilla misrepresented to Plaintiffs that the damage to
the Property was not covered under the Policy, even though the damage was caused by a
covered occurrence. Defendants State Farm’s, Farias’, and Padilla’s conduct constitutes
a violation of the Texas Insurance Code, Unfair Settlement Practices. TEX. INS. CODE
§541.060(a)(1).
24. Defendants State Farm, Farias, and Padilla failed to make an attempt to settle Plaintiffs’
claim in a fair manner, although they were aware of their liability to Plaintiffs under the
Policy. Defendants State Farm’s, Farias’, and Padilla’s conduct constitutes a violation of
the Texas Insurance Code, Unfair Settlement Practices. TEX. INS. CODE
§541.060(a)(2)(A).
25. Defendants State Farm, Farias, and Padilla failed to explain to Plaintiffs the reasons for
their offer of an inadequate settlement. Specifically, Defendants State Farm, Farias, and
Padilla failed to offer Plaintiffs adequate compensation, without any explanation why full
payment was not being made. Furthermore, Defendants State Farm, Farias, and Padilla
did not communicate that any future settlements or payments would be forthcoming to
pay for the entire losses covered under the Policy, nor did they provide any explanation
for the failure to adequately settle Plaintiffs’ claim. Defendants State Farm’s, Farias’,
and Padilla’s conduct is a violation of the Texas Insurance Code, Unfair Settlement
Practices. TEX. INS. CODE §541.060(a)(3).
26. Defendants State Farm, Farias, and Padilla failed to affirm or deny coverage of Plaintiffs’
claim within a reasonable time. Specifically, Plaintiffs did not receive timely indication
Page 6
of acceptance or rejection, regarding the full and entire claim, in writing from Defendants
State Farm, Farias, and Padilla. Defendants State Farm’s, Farias’, and Padilla’s conduct
constitutes a violation of the Texas Insurance Code, Unfair Settlement Practices. TEX.
INS. CODE §541.060(a)(4).
27. Defendants State Farm, Farias, and Padilla refused to fully compensate Plaintiffs under
the terms of the Policy, even though Defendants State Farm, Farias, and Padilla failed to
conduct a reasonable investigation. Specifically, Defendants State Farm, Farias, and
Padilla performed an outcome-oriented investigation of Plaintiffs’ claim, which resulted
in a biased, unfair, and inequitable evaluation of Plaintiffs’ losses on the Property.
Defendants State Farm’s, Farias’, and Padilla’s conduct constitutes a violation of the
Texas Insurance Code, Unfair Settlement Practices. TEX. INS. CODE §541.060(a)(7).
28. Defendant State Farm failed to meet its obligations under the Texas Insurance Code
regarding timely acknowledging Plaintiffs’ claim, beginning an investigation of
Plaintiffs’ claim, and requesting all information reasonably necessary to investigate
Plaintiffs’ claim, within the statutorily mandated time of receiving notice of Plaintiffs’
claim. State Farm’s conduct constitutes a violation of the Texas Insurance Code, Prompt
Payment of Claims. TEX. INS. CODE §542.055.
29. Defendant State Farm failed to accept or deny Plaintiffs’ full and entire claim within the
statutorily mandated time of receiving all necessary information. State Farm’s conduct
constitutes a violation of the Texas Insurance Code, Prompt Payment of Claims. TEX.
INS. CODE §542.056.
30. Defendant State Farm failed to meet its obligations under the Texas Insurance Code
regarding payment of claim without delay. Specifically, it has delayed full payment of
Page 7
Plaintiffs’ claim longer than allowed and, to date, Plaintiffs have not received full
payment for their claim. State Farm’s conduct constitutes a violation of the Texas
Insurance Code, Prompt Payment of Claims. TEX. INS. CODE §542.058.
31. From and after the time Plaintiffs’ claim was presented to Defendant State Farm, the
liability of State Farm to pay the full claim in accordance with the terms of the Policy
was reasonably clear. However, State Farm has refused to pay Plaintiffs in full, despite
there being no basis whatsoever on which a reasonable insurance company would have
relied to deny the full payment. State Farm’s conduct constitutes a breach of the common
law duty of good faith and fair dealing.
32. Defendants State Farm, Farias, and Padilla knowingly or recklessly made false
representations, as described above, as to material facts and/or knowingly concealed all
or part of material information from Plaintiffs.
33. As a result of Defendants State Farm’s, Farias’, and Padilla’s wrongful acts and
omissions, Plaintiffs were forced to retain the professional services of the attorney and
law firm who are representing them with respect to these causes of action.
34. Plaintiffs’ experience is not an isolated case. The acts and omissions State Farm
committed in this case, or similar acts and omissions, occur with such frequency that they
constitute a general business practice of State Farm with regard to handling these types of
claims. State Farm's entire process is unfairly designed to reach favorable outcomes for
the company at the expense of the policyholders.
Page 8
CAUSES OF ACTION:
CAUSES OF ACTION AGAINST DEFENDANT FARIAS AND PADILLA
NONCOMPLIANCE WITH TEXAS INSURANCE CODE:
UNFAIR SETTLEMENT PRACTICES
35. Defendant State Farm assigned Defendants Farias and Padilla to adjust the claim.
Defendants Farias and Padilla were improperly trained to handle claims of this nature and
performed an unreasonable investigation of Plaintiffs’ damages. During his
investigation, the adjusters failed to properly assess Plaintiffs’ Storm damages. The
adjusters also omitted covered damages from their report(s), including the damages to the
home’s roof and siding. In addition, the damages that the adjusters did include in the
estimate were severely underestimated.
36. Defendants Farias’ and Padilla’s conduct constitutes multiple violations of the Texas
Insurance Code, Unfair Settlement Practices. TEX. INS. CODE §541.060(a). All
violations under this article are made actionable by TEX. INS. CODE §541.151.
37. Defendants Farias and Padilla are each individually liable for their unfair and deceptive
acts, irrespective of the fact they were acting on behalf of State Farm, because they are
each a “person” as defined by TEX. INS. CODE §541.002(2). The term “person” is defined
as “any individual, corporation, association, partnership, reciprocal or interinsurance
exchange, Lloyds plan, fraternal benefit society, or other legal entity engaged in the
business of insurance, including an agent, broker, adjuster or life and health insurance
counselor.” TEX. INS. CODE §541.002(2) (emphasis added); see also Liberty Mutual
Insurance Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998) (holding
an insurance company employee to be a “person” for the purpose of bringing a cause of
Page 9
action against him or her under the Texas Insurance Code and subjecting him or her to
individual liability).
38. Falsehoods and misrepresentations may be communicated by actions as well as by the
spoken word; therefore, deceptive conduct is equivalent to a verbal representation.
Defendants Farias’ and Padilla’s misrepresentations by means of deceptive conduct
include, but are not limited to: (1) failing to conduct a reasonable inspection and
investigation of Plaintiffs’ damages; (2) stating that Plaintiffs’ damages were less severe
than they in fact were; (3) using their own statements about the non-severity of the
damage as a basis for denying properly covered damages and/or underpaying damages;
and (4) failing to provide an adequate explanation for the inadequate compensation
Plaintiffs received. Defendants Farias’ and Padilla’s unfair settlement practice, as
described above and the example given herein, of misrepresenting to Plaintiffs material
facts relating to the coverage at issue, constitutes an unfair method of competition and an
unfair and deceptive act or practice in the business of insurance. TEX. INS. CODE
§541.060(a)(1).
39. Defendants Farias’ and Padilla’s unfair settlement practice, as described above, of failing
to attempt in good faith to effectuate a prompt, fair, and equitable settlement of the claim,
even though liability under the Policy is reasonably clear, constitutes an unfair method of
competition and an unfair and deceptive act or practice in the business of insurance. TEX.
INS. CODE §541.060(a)(2)(A).
40. Defendants Farias and Padilla failed to explain to Plaintiffs the reasons for their offer of
an inadequate settlement. Specifically, Defendants Farias and Padilla failed to offer
Plaintiffs adequate compensation without any explanation as to why full payment was not
Page 10
being made. Furthermore, Defendants Farias and Padilla did not communicate that any
future settlements or payments would be forthcoming to pay for the entire losses covered
under the Policy, nor did they provide any explanation for the failure to adequately settle
Plaintiffs’ claim. The unfair settlement practice of Defendants Farias and Padilla as
described above, of failing to promptly provide Plaintiffs with a reasonable explanation
of the basis in the Policy, in relation to the facts or applicable law, for the offer of a
compromise settlement of Plaintiffs’ claim, constitutes an unfair method of competition
and an unfair and deceptive act or practice in the business of insurance. TEX. INS. CODE
§541.060(a)(3).
41. Defendants Farias’ and Padilla’s unfair settlement practice, as described above, of failing
within a reasonable time to affirm or deny coverage of the claim to Plaintiffs, or to
submit a reservation of rights to Plaintiffs, constitutes an unfair method of competition
and an unfair and deceptive act or practice in the business of insurance. TEX. INS. CODE
§541.060(a)(4).
42. Defendants Farias and Padilla did not properly inspect the Property and failed to account
for and/or undervalued many of Plaintiffs’ exterior and interior damages, although
reported by Plaintiffs to State Farm. Defendants Farias’ and Padilla’s unfair settlement
practice, as described above, of refusing to pay Plaintiffs’ claim without conducting a
reasonable investigation, constitutes an unfair method of competition and an unfair and
deceptive act or practice in the business of insurance. TEX. INS. CODE §541.060(a)(7).
CAUSES OF ACTION AGAINST ALL DEFENDANTS
43. Plaintiffs are not making any claims for relief under federal law.
Page 11
FRAUD
44. Defendants State Farm, Farias, and Padilla are liable to Plaintiffs for common law fraud.
45. Each and every one of the representations, as described above, concerned material facts
for the reason that absent such representations, Plaintiffs would not have acted as they
did, and which Defendants State Farm, Farias, and Padilla knew were false or made
recklessly without any knowledge of their truth as a positive assertion.
46. The statements were made with the intention that they should be acted upon by Plaintiffs,
who in turn acted in reliance upon the statements, thereby causing Plaintiffs to suffer
injury and constituting common law fraud.
CONSPIRACY TO COMMIT FRAUD
47. Defendants State Farm, Farias, and Padilla are liable to Plaintiffs for conspiracy to
commit fraud. Defendants State Farm, Farias, and Padilla were members of a
combination of two or more persons whose object was to accomplish an unlawful
purpose or a lawful purpose by unlawful means. In reaching a meeting of the minds
regarding the course of action to be taken against Plaintiffs, Defendants State Farm,
Farias, and Padilla committed an unlawful, overt act to further the object or course of
action. Plaintiffs suffered injury as a proximate result.
CAUSES OF ACTION AGAINST STATE FARM ONLY
48. Defendant State Farm is liable to Plaintiffs for intentional breach of contract, as well as
intentional violations of the Texas Insurance Code, and intentional breach of the common
law duty of good faith and fair dealing.
Page 12
BREACH OF CONTRACT
49. Defendant State Farm’s conduct constitutes a breach of the insurance contract made
between State Farm and Plaintiffs.
50. Defendant State Farm’s failure and/or refusal, as described above, to pay adequate
compensation as it is obligated to do under the terms of the Policy in question, and under
the laws of the State of Texas, constitutes a breach of State Farm’s insurance contract
with Plaintiffs.
NONCOMPLIANCE WITH TEXAS INSURANCE CODE:
UNFAIR SETTLEMENT PRACTICES
51. Defendant State Farm’s conduct constitutes multiple violations of the Texas Insurance
Code, Unfair Settlement Practices. TEX. INS. CODE §541.060(a). All violations under
this article are made actionable by TEX. INS. CODE §541.151.
52. Defendant State Farm’s unfair settlement practice, as described above, of misrepresenting
to Plaintiffs material facts relating to the coverage at issue, constitutes an unfair method
of competition and an unfair and deceptive act or practice in the business of insurance.
TEX. INS. CODE §541.060(a)(1).
53. Defendant State Farm’s unfair settlement practice, as described above, of failing to
attempt in good faith to effectuate a prompt, fair, and equitable settlement of the claim,
even though State Farm’s liability under the Policy was reasonably clear, constitutes an
unfair method of competition and an unfair and deceptive act or practice in the business
of insurance. TEX. INS. CODE §541.060(a)(2)(A).
54. Defendant State Farm’s unfair settlement practice, as described above, of failing to
promptly provide Plaintiffs with a reasonable explanation of the basis in the Policy, in
relation to the facts or applicable law, for its offer of a compromise settlement of the
Page 13
claim, constitutes an unfair method of competition and an unfair and deceptive act or
practice in the business of insurance. TEX. INS. CODE §541.060(a)(3).
55. Defendant State Farm’s unfair settlement practice, as described above, of failing within a
reasonable time to affirm or deny coverage of the claim to Plaintiffs, or to submit a
reservation of rights to Plaintiffs, constitutes an unfair method of competition and an
unfair and deceptive act or practice in the business of insurance. TEX. INS. CODE
§541.060(a)(4).
56. Defendant State Farm’s unfair settlement practice, as described above, of refusing to pay
Plaintiffs’ claim without conducting a reasonable investigation, constitutes an unfair
method of competition and an unfair and deceptive act or practice in the business of
insurance. TEX. INS. CODE §541.060(a)(7).
NONCOMPLIANCE WITH TEXAS INSURANCE CODE:
THE PROMPT PAYMENT OF CLAIMS
57. Defendant State Farm’s conduct constitutes multiple violations of the Texas Insurance
Code, Prompt Payment of Claims. All violations made under this article are made
actionable by TEX. INS. CODE §542.060.
58. Defendant State Farm’s failure to acknowledge receipt of Plaintiffs’ claim, commence
investigation of the claim, and request from Plaintiffs all items, statements, and forms
that it reasonably believed would be required within the applicable time constraints, as
described above, constitutes a non-prompt payment of claims and a violation of TEX. INS.
CODE §542.055.
59. Defendant State Farm’s failure to notify Plaintiffs in writing of its acceptance or rejection
of the claim within the applicable time constraints constitutes a non-prompt payment of
the claim. TEX. INS. CODE §542.056.
Page 14
60. Defendant State Farm’s delay of the payment of Plaintiffs’ claim following its receipt of
all items, statements, and forms reasonably requested and required, longer than the
amount of time provided for, as described above, constitutes a non-prompt payment of
the claim. TEX. INS. CODE §542.058.
ACTS CONSTITUTING ACTING AS AGENT
61. As referenced and described above, and further conduct throughout this litigation and
lawsuit, Farias and Padilla are agents of State Farm based on their acts during the
handling of this claim, including inspections, adjustments, and aiding in adjusting a loss
for or on behalf of the insurer. TEX. INS. CODE §4001.051.
62. Separately, and/or in the alternative, as referenced and described above, State Farm
ratified the actions and conduct of Farias and Padilla, including the completion of their
duties under the common law and statutory law.
BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING
63. Defendant State Farm’s conduct constitutes a breach of the common law duty of good
faith and fair dealing owed to insureds in insurance contracts.
64. Defendant State Farm’s failure, as described above, to adequately and reasonably
investigate and evaluate Plaintiffs’ claim, although, at that time, State Farm knew or
should have known by the exercise of reasonable diligence that its liability was
reasonably clear, constitutes a breach of the duty of good faith and fair dealing.
KNOWLEDGE
65. Each of the acts described above, together and singularly, was done “knowingly,” as that
term is used in the Texas Insurance Code, and was a producing cause of Plaintiffs’
damages described herein.
Page 15
DAMAGES
66. Plaintiffs would show that all of the aforementioned acts, taken together or singularly,
constitute the producing causes of the damages sustained by Plaintiffs.
67. As previously mentioned, the damages caused by the Storm have not been properly
addressed or repaired in the months since the Storm, causing further damages to the
Property, and causing undue hardship and burden to Plaintiffs. These damages are a
direct result of Defendant State Farm’s, Farias’, and Padilla’s mishandling of Plaintiffs’
claim in violation of the laws set forth above.
68. For breach of contract, Plaintiffs are entitled to regain the benefit of their bargain, which
is the amount of their claim, together with attorney’s fees.
69. For noncompliance with the Texas Insurance Code, Unfair Settlement Practices,
Plaintiffs are entitled to actual damages, which include the loss of the benefits that should
have been paid pursuant to the policy, mental anguish, court costs, and attorney's fees.
For knowing conduct of the acts described above, Plaintiffs ask for three times their
actual damages. TEX. INS. CODE §541.152.
70. For noncompliance with Texas Insurance Code, Prompt Payment of Claims, Plaintiffs are
entitled to the amount of their claim, as well as eighteen (18) percent interest per annum
on the amount of such claim as damages, together with attorney's fees. TEX. INS. CODE
§542.060.
71. For breach of the common law duty of good faith and fair dealing, Plaintiffs are entitled
to compensatory damages, including all forms of loss resulting from the insurer's breach
of duty, such as additional costs, economic hardship, losses due to nonpayment of the
amount the insurer owed, exemplary damages, and damages for emotional distress.
Page 16
72. For fraud, Plaintiffs are entitled to recover actual damages and exemplary damages for
knowingly fraudulent and malicious representations, along with attorney’s fees, interest,
and court costs.
73. For the prosecution and collection of this claim, Plaintiffs have been compelled to engage
the services of the attorney whose name is subscribed to this pleading. Therefore,
Plaintiffs are entitled to recover a sum for the reasonable and necessary services of
Plaintiffs’ attorney in the preparation and trial of this action, including any appeals to the
Court of Appeals and/or the Supreme Court of Texas.
JURY DEMAND
74. Plaintiffs have requested that all causes of action alleged herein be tried before a jury
consisting of citizens residing in Webb County, Texas. Plaintiffs previously tendered the
appropriate jury fee.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that upon trial hereof, said
Plaintiffs have and recover such sums as would reasonably and justly compensate them in
accordance with the rules of law and procedure, as to actual damages, treble damages under the
Texas Insurance Code, and all punitive and exemplary damages as may be found. In addition,
Plaintiffs request the award of attorney’s fees for the trial and any appeal of this case, for all
costs of Court on their behalf expended, for prejudgment and postjudgment interest as allowed
by law, and for any other and further relief, either at law or in equity, to which they may show
themselves justly entitled.
Page 17
Respectfully submitted,
MOSTYN LAW
/s/ J. Steve Mostyn
J. Steve Mostyn
State Bar No. 00798389
jsmdocketefile@mostynlaw.com
3810 West Alabama Street
Houston, Texas 77027
(713) 714-0000 (Office)
(713) 714-1111 (Facsimile)
ATTORNEY FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been forwarded to all
counsel of record on this 16th day of June, 2015 in accordance with the Rules of Civil Procedure.
/s/ J. Steve Mostyn
J. Steve Mostyn
Page 18
TAB 16
OF THE RECORD
Filed
7/2/2015 4:41:49 PM
Esther Degollado
District Clerk
Webb District
Jeanie Aguilar
2014CVF001048D1
CAUSE NO. 2014-C VF-001048-D1
ALMA PENA § IN THE DISTRICT COURT
Plaintiff §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER § T11
49
Defendants § JUDICIAL DISTRICT
PROTECTIVE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Infonnation,
which will be produced or exchanged in this litigation, and that the following provisions,
limitations, and prohibitions are appropriate pursuant to and in conformity with the Texas Rules
of Civil Procedure. Therefore, it is hereby ORDERED that:
1. All Confidential Information produced or exchanged in the course of this
litigation shall be used solely for the purpose of the preparation and trial of this
litigation or Related Litigation against State Farm Lloyds (including its
employees) and Becky Lanier (“Defendants”) or any third party adjusting firm
(including its employees) that adjusted this claim, and for no other purpose.
Subject to paragraphs l.a. and 1 .b. below, “Related Litigation,” as used herein
means a first-party lawsuit filed in Texas by The Mostyn Law Firm arising out of
a claim for damages to residential, commercial, or personal property as a result of
a hailstorm that occurred in Texas. Confidential Information, or extracts,
summaries, or information derived from Confidential Information, shall not be
disclosed to any person except in accordance with the terms of this Order.
Confidential Information may only be copied or reproduced as reasonably
necessary for use solely in this litigation or Related Litigation, subject to the
1
limitations contained herein.
a. State Farm’s institutional materials that are not claim-specific or adjuster-
specific will be Bates-labeled PENARODMLFTX00000001PROD -
PENARODMLFTX00000756PROD. Documents Bates-labeled
PENARODMLFTX00000001PROD - PENARODMLFTX00000756PROD may be
shared among Qualified Persons in Related Litigation so long as The
Mostyn Law Firm is representing the Plaintiff(s) in the Related Litigation.
If The Mostyn Law Firm withdraws from any case qualifying as Related
Litigation or later associates another lawyer or law firm in the Related
Litigation, State Farm’s consent to the use of the documents Bates-labeled
PENARODMLFTX00000001PROD - PENARODMLFTX00000756PROD in that
Related Litigation is automatically revoked. Documents Bates-labeled
PENARODMLFTX00000001PROD - PENARODMLFTX00000756PROD shall not
be considered to have been produced in and for Related Litigation as
“official discovery” unless they are responsive to a written discovery
request to which State Farm has not objected in that Related Litigation or
the Court has overruled State Farm’s objections and ordered production in
that Related Litigation. Documents Bates-labeled
PENARODMLFTX0000000IPROD - PENARODMLFTX00000756PROD that are
not official discovery in a Related Litigation may not be used at
depositions, hearings or at trial in that Related Litigation unless the
plaintiffs in the Related Litigation have made a valid request for
production of such documents, the date for the response to such request(s)
2
has passed, and The Mostyn Law Firm has given notice of intent to use the
document at a deposition or other proceeding fourteen (14) days prior to
the proceeding.
b. Claim-specific, adjuster-specific, or other materials produced in this
litigation that are not Bates-labeled PENARODMLFTX00000001PROD -
PENARODMLFTX00000756PROD may not be shared in Related Litigation,
but may only be shared among Qualified Persons in the lawsuit in which
the materials were produced. If a receiving party intends to use any
document Bates-labeled PENARODMLFTXO 0000001 PROD -
PENARODMLFTX00000756PROD in Related Litigation, that party must first
obtain written consent of the producing party or leave of court.
2. “Confidential Information,” as used herein, means any information of any type
that is designated as “Confidential” and/or “Trade Secret” by any of the
producing or receiving parties, whether it is: a document, electronically stored
information (“ESI”), or other material; information contained in a document, ESI,
or other material; information revealed during a deposition; information revealed
in an interrogatory answer or written responses to discovery; information revealed
during a meet and confer, or otherwise in connection with formal or informal
discovery.
3. The disclosure of Confidential Information is restricted to Qualified Persons.
“Qualified Persons,” as used herein, means: the parties to this pending litigation;
their respective counsel; counsel’s staff; expert witnesses; outside service
providers and consultants providing services related to document and ESI
3
processing, hosting, review, and production; the Court; other court officials
(including court reporters); the trier of fact pursuant to a sealing order; and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any
other person may be designated as a Qualified Person by order of this Court, after
notice to all parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential
Information to a person who is not a Qualified Person on counsel for the
designating party, and consent shall not be unreasonably withheld. However,
until said requesting party receives written consent to further disclose the
Confidential Information, the further disclosure is hereby prohibited and shall not
be made absent further order of this Court. If the designating party grants its
consent, then the person granted consent shall become a Qualified Person under
this Order.
5. Counsel for each party shall provide a copy of this Order to any person—other
than the Court, court officials, or the trier of fact—who will receive Confidential
Information in connection with this litigation, and shall advise such person of the
scope and effect of the provisions of this Order and the possibility of punishment
by contempt for violation thereof. Further, before disclosing Confidential
Information to any person other than the Court, court officials, or the trier of
fact, counsel for the party disclosing the information shall obtain the written
acknowledgment of that person binding him or her to the terms of this Order. The
written acknowledgment shall be in the form of Exhibit A attached hereto.
Counsel for the disclosing party shall retain the original written acknowledgment,
4
and furnish a copy of the signed written acknowledgment to the designating
party’s counsel within ten (10) business days.
6. Information shall be designated as Confidential Information within the meaning
of this Protective Order by following the protocol below that corresponds to the
format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf.
Agree./Prot. Order,” but not so as to obscure the content of the document.
b. For static image productions, by marking the first Bates-stamped page of
the image and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf.
Agree./Prot. Order,” but not so as to obscure the content of the image.
c. For native file format productions, by prominently labeling the delivery
media for ESI designated as Confidential Information as follows:
“Confidential & Proprietary/Produced Pursuant to a Conf. Agree./Prot.
Order” or “Confidential Proprietary & Trade Secret/Produced Pursuant to
a Conf. Agree./Prot. Order.” In addition, at the election of the producing
party, the electronic file may have appended to the file’s name
5
(immediately following its Bates identifier) the following protective
legend:
“CONFIDENTIAL-SUBJ TO PROTECTIVE ORDER IN CAUSE 20 14-CVF-
001048-Di”. When any file so designated is converted to a hard-copy
document or static image for any purpose, the document or image shall
bear on each page a protective legend as described in 6.a. and 6.b. above.
If a native file containing Confidential Information is used during a
deposition, meet and confer, trial, or is otherwise disclosed post-
production, the party introducing, referencing, or submitting the native file
must append to the file’s name (immediately following its Bates identifier)
the protective legend:
“CONFIDENTIAL-SUBJ_TQPROTECTIVE_ORDER IN CAUSE 20 14-CVF-
001048-Di”, if such legend does not already appear in the file name. Any
party using a native file containing Confidential Information in a
deposition, hearing, or at trial must indicate the designation on the record
so that it is reflected in the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may
place on any hard-copy documents that are subject to this Protective Order
watermarks or seals to indicate the document is subject to a Protective
Order and is produced under the specific cause number.
7. Information previously produced during this litigation and not already marked as
Confidential Information shall be retroactively designated within thirty (30) days
of entry of this Order by providing written notice to the receiving parties of the
Bates identifier or other identifying characteristics for the Confidential
6
Infonnation.
a. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, and/or (ii) with respect to ESI, take such reasonable
steps as will reliably identify the item(s) as having been designated as
Confidential Information.
b. Information that is unintentionally or inadvertently produced without
being designated as Confidential Information may be retroactively
designated by the producing party in the manner described in paragraph
7.a. above. If a retroactive designation is provided to the receiving party
in accordance with Texas Rule of Civil Procedure 193.3(d) the
receiving party must (i) make no further disclosure of such designated
information except as allowed under this Order; (ii) take reasonable steps
to notify any persons who were provided copies of such designated
information of the terms of this Order; and (iii) take reasonable steps to
reclaim any such designated information in the possession of any person
not permitted access to such information under the terms of this Order.
No party shall be deemed to have violated this Order for any disclosures
7
made prior to notification of any subsequent designation.
8. If Confidential Information is inadvertently disclosed to a person who is not a
Qualified Person, the disclosing party shall immediately upon discovery of the
inadvertent disclosure, send a written demand to the non-Qualified Person
demanding the immediate return and/or destmction of the inadvertently disclosed
Confidential Information, all copies made, and all notes that reproduce, copy, or
otherwise contain information derived from Confidential Information. Further the
disclosing party shall send written notice to the designating party’s counsel
providing:
a. The names and addresses of the entity or individual to whom the
Confidential Information was inadvertently disclosed.
b. The date of the disclosure.
c. A copy of the notice and demand sent to the entity or individual that
inadvertently received the Confidential Information.
9. To the extent that the parties produce information received from non-parties that
the non-parties have designated as “confidential” such information shall be treated
as Confidential Information in accordance with the terms of this Protective Order.
a. With respect to any document, ESI, or other material that is produced or
disclosed by a non-party, any party may designate such information as
Confidential Information within thirty (30) days of actual knowledge of
the production or disclosure, or such other time as may be agreed upon by
the parties.
b. Within thirty (30) days of receipt of such notice, or such other time as may
8
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, andlor (ii) with respect to ESI, take such reasonable
steps as will reliably identify the item(s) as having been designated as
Confidential Information.
c. Upon notice of designation pursuant to this Paragraph, the parties also
shall: (i) make no further disclosure of such designated information except
as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated information of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No person shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
d. The parties shall serve a copy of this Order simultaneously with any
discovery request made to a non-party.
10. Deposition testimony is Confidential Information under the terms of this Order
only if counsel for a party advises the court reporter and opposing counsel of that
designation at the deposition, or by written designation to all parties and the court
9
reporter within thirty (30) business days after receiving the deposition transcript.
All deposition transcripts shall be considered Confidential Information until thirty
(30) days following the receipt of the deposition transcript. In the event testimony
is designated as Confidential Information, the court reporter shall note the
designation on the record, shall separately transcribe those portions of the
testimony, and shall mark the face of such portion of the transcript as
“Confidential Information.” The parties may use Confidential Information during
any deposition, provided:
a. The witness is apprised of the terms of this Order and executes the
acknowledgment attached hereto as Exhibit A.
b. The room is first cleared of all persons who are not Qualified Persons.
11. In the case of interrogatory answers, responses to request for production, and
responses to requests for admissions, the designation of Confidential Information
will be made by means of a statement in the answers or responses specifying that
the answers or responses or specific parts thereof are designated as Confidential
Information. A producing party shall place the following legend on each page of
interrogatory answers or responses to requests for admission: “Contains
Confidential Information.”
12. Confidential Information disclosed during a meet and confer or otherwise
exchanged in informal discovery, shall be protected pursuant to this Order if
counsel for the disclosing party advises the receiving party the information is
Confidential Information. If the Confidential Information disclosed during a meet
and confer or otherwise exchanged in informal discovery is in the form of hard
10
copy documents, static images, or native files, that information shall be
designated as Confidential Information pursuant to paragraphs 6 a., b., andlor c.
above, depending on the format of the materials introduced.
13. If a receiving party makes a good-faith determination that any materials
designated Confidential Information are not in fact “confidential” or “trade
secret,” the receiving party may request that a designating party rescind the
designation. Such requests shall not be rejected absent a good-faith determination
by the designating party that the Confidential Information is entitled to protection.
14. After making a good-faith effort to resolve any disputes regarding whether any
designated materials constitute Confidential Information, counsel of the party or
parties receiving the Confidential Information may challenge such designation of
all or any portion thereof by providing written notice of the challenge to the
designating party’s counsel. The designating party shall have twenty (20) days
from the date of receipt of a written challenge to file a motion for specific
protection with regard to any Confidential Information in dispute. If the party or
parties producing the Confidential Information does not timely file a motion for
specific protection, then the Confidential Information in dispute shall no longer be
subject to confidential treatment as provided in this Order.
15. If a timely motion for specific protection is filed, any disputed Confidential
Information will remain subject to this Order until a contrary determination is
made by the Court. At any hearing the designating party shall have the burden to
establish that patty’s right to protection as if this Order did not exist. A party’s
failure to challenge the Confidential Information designation of any documents,
11
ESI, information, or testimony does not constitute an admission that the
document, ESI, information or testimony is, in fact, sensitive, confidential, or
proprietary. No party waives its right to contend at trial or hearing that such
document, ESI, information or testimony is not sensitive, confidential, privileged
or proprietary, provided the party provides notice of intention to do so at least
twenty (20) days before such trial or hearing.
16. Any papers filed with the Court in this action that make reference to Confidential
Information, or contain extracts, summaries, or information derived therefrom,
shall be considered Confidential Information and shall be governed by the terms
of this Order. These papers shall be filed under seal and shall remain sealed with
the District Clerk’s Office so long as the materials retain their status as
Confidential Information.
17. Pursuant to the agreement of the parties no disclosure, production, or exchange of
information in this case shall constitute a waiver of any applicable attorney-client
privilege or of any applicable work product protection in this or any other federal
or state proceeding. This Protective Order applies to any information disclosed,
exchanged, produced, or discussed — whether intentionally or inadvertently —
among the parties, their counsel and/or any agents (such as vendors and experts)
in the course of this litigation. Upon learning of a production of privileged or
work product protected information, the producing party shall within ten (10)
days give all counsel of record notice of the production pursuant to Texas Rule of
Civil Procedure 193.3(d). The receiving party must promptly return, sequester or
destroy the produced information and all copies and destroy any notes that
12
reproduce, copy, or otherwise disclose the substance of the privileged or work
product protected information.
18. Further, production pursuant to this Protective Order shall not be deemed a waiver
of:
a. Any party’s right to object to any discovery requests on any ground.
b. Any party’s right to seek an order compelling discovery with respect to
any discovery request.
c. Any party’s use and review of its own Confidential Information in its sole
and complete discretion.
d. The status of any material as a trade secret.
19. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
20. Within one (1) year after the fmal resolution of this litigation, the plaintiff(s) and
The Mostyn Law Firm shall return or destroy Confidential Information they
received during this litigation. As to those materials that contain or reflect
Confidential Information, but that constitute or reflect the plaintiff(s) counsel’s
own work product, counsel for the plaintiff(s) are entitled to retain such work
product in their files in accordance with the provisions of this Protective Order, so
long as the work product is clearly marked to reflect that it contains information
subject to this Protective Order. Plaintiffs counsel is entitled to retain pleadings,
affidavits, motions, briefs, other papers filed with the Court, deposition
transcripts, and the trial record even if such materials contain Confidential
Information, so long as such materials are clearly marked to reflect that they
13
_____
contain information subject to this Protective Order and are maintained in
accordance with the provisions of this Protective Order. Plaintiff’s counsel shall
certify in writing compliance with the provision of this paragraph after one (1)
year after the final resolution of this litigation.
This Order shall remain in effect unless or until amended, altered, modified, or vacated
by the Court or by the written agreement of all parties to this action filed with the Court,
pursuant to the Texas Rules of Civil Procedure.
IT IS SO ORDERED this day of • 2015.
JUDGE PRESIDING
APPROVED AS TO FORM ONLY:
J. Steve Mostyn Sofid* Ramon
State Bar No. 00798389 State ar No. 00784811
Andrew P. Taylor Dan I. Worthington
State Bar No. 24070723 State Bar No. 00785282
THE MOSTYN LAW FIRM Elizabeth S. Cantu
3810 W. Alabama Street State Bar No. 24013455
Houston, Texas 77027 Charles W. Downing
(713) 861-6616 Phone
— State Bar No. 24069631
(713) 861-8084 Fax
— ATLAS, HALL & RODRIGUEZ, LLP
ATTORNEYS FOR PLAINTIFF 818 Pecan Blvd.
McAllen, Texas 78501
(956) 682-5501 Phone
—
(956) 686-6109 Fax
—
ATTORNEYS FOR DEFENDANTS
14
__________________________________
Filed
7/2/2015 4:41:49 PM
Esther Degollado
District Clerk
Webb District
Jeanie Aguilar
2014CVF001048D1
CAUSE NO. 2014-CVF-001048-D1
ALMA PENÃ § IN THE DISTRICT COURT
Plaintiff §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LANIER § TH
49
Defendants § JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
in order to be provided access to infonnation
designated as Confidential Information under the Protective Order entered in Cause No. 20 14-
CVF-00 1 048-D 1 represents and agrees as follows:
1. I have been provided with a copy of the Protective Order entered by the Court in
the above matter. I have reviewed said copy and I am familiar with its terms.
2. With regard to any and all Confidential Information to which I am given access in
connection with the above matter, I agree to be bound by the provisions of the
Protective Order.
3. I consent to the exercise of jurisdiction over me by the Court with respect to the
Protective Order.
4. I agree that copies of this undertaking will be sent to counsel of record for all
parties in the above litigation.
DATED: SIGNATURE
EXHIBIT A
TAB 17
OF THE RECORD
CAUSE NO. 2014-CVF-001162-D1
RAUL RODRIGUEZ AND NOEMI § IN THE DISTRICT COURT OF
RODRIGUEZ, §
§
Plaintiff, §
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND FELIPE §
FARIAS, §
§
TH
49
Defendants. JUDICIAL DISTRICT
PROTECTIVE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced or exchanged in this litigation, and that the following provisions,
limitations, and prohibitions are appropriate pursuant to and in conformity with the Texas Rules
of Civil Procedure. Therefore, it is hereby ORDERED that:
1. All Confidential Information produced or exchanged in the course of this
litigation shall be used solely for the purpose of the preparation and trial of this
litigation or Related Litigation against State Farm Lloyds (including its
employees) and Felipe Farias (“Defendants”) or any third party adjusting firm
(including its employees) that adjusted this claim, and for no other purpose.
Subject to paragraphs l.a. and I .b. below, “Related Litigation,” as used herein
means a first-party lawsuit filed in Texas by The Mostyn Law Firm arising out of
a claim for damages to residential, commercial, or personal property as a result of
a hailstorm that occurred in Texas. Confidential Information, or extracts,
summaries, or information derived from Confidential Information, shall not be
disclosed to any person except in accordance with the terms of this Order.
1
Confidential Information may only be copied or reproduced as reasonably
necessary for use solely in this litigation or Related Litigation, subject to the
limitations contained herein.
a. State Farm’s institutional materials that are not claim-specific or adjuster-
specific will be Bates-labeled PENARODMLFTX0000000IPROD -
PEN ARODMLFTX00000756PROD. Documents Bates-labeled
PEN ARODM LFTX0000000 I PROD - PENARODM LFTX00000756PROD may be
shared among Qualified Persons in Related Litigation so long as The
Mostyn Law Firm is representing the Plaintiff(s) in the Related Litigation.
If The Mostyn Law Firm withdraws from any case qualifying as Related
Litigation or later associates another lawyer or law firm in the Related
Litigation, State Farm’s consent to the use of the documents Bates-labeled
PENARODMLFTX00000001PROD - PENARODMLFTX00000756PROD in that
Related Litigation is automatically revoked. Documents Bates-labeled
PENARODM LFTX0000000 1 PROD - PENARODMLFTX00000756PROD shall not
be considered to have been produced in and for Related Litigation as
“official discovery” unless they are responsive to a written discovery
request to which State Farm has not objected in that Related Litigation or
the Court has overruled State Farm’s objections and ordered production in
that Related Litigation. Documents Bates-labeled
PENARODMLFTX0000000 1 PROD - PENARODMLFTX00000756PROD that are
not official discovery in a Related Litigation may not be used at
depositions, hearings or at trial in that Related Litigation unless the
2
plaintiffs in the Related Litigation have made a valid request for
production of such documents, the date for the response to such request(s)
has passed, and The Mostyn Law Firm has given notice of intent to use the
document at a deposition or other proceeding fourteen (14) days prior to
the proceeding.
b. Claim-specific, adjuster-specific, or other materials produced in this
litigation that are not Bates-labeled PENARODMLFTX0000000IPROD -
PENARODMLFTX00000756PROD may not be shared in Related Litigation,
but may only be shared among Qualified Persons in the lawsuit in which
the materials were produced. If a receiving party intends to use any
document Bates-labeled PENARODMLFTX0000000 I PROD -
PENARODMLFTX00000756PROD in Related Litigation, that party must first
obtain written consent of the producing party or leave of court.
2. “Confidential Information,” as used herein, means any information of any type
that is designated as “Confidential” and/or “Trade Secret” by any of the
producing or receiving parties, whether it is: a document, electronically stored
information (“ES!”), or other material; information contained in a document, ESI,
or other material; information revealed during a deposition; information revealed
in an interrogatory answer or written responses to discovery; information revealed
during a meet and confer, or otherwise in connection with formal or informal
discovery.
3. The disclosure of Confidential Information is restricted to Qualified Persons.
“Qualified Persons,” as used herein, means: the parties to this pending litigation;
3
their respective counsel; counsel’s staff; expert witnesses; outside service-
providers and consultants providing services related to document and ESI
processing, hosting, review, and production; the Court; other court officials
(including court reporters); the trier of fact pursuant to a sealing order; and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any
other person may be designated as a Qualified Person by order of this Court, after
notice to all parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential
Information to a person who is not a Qualified Person on counsel for the
designating party, and consent shall not be unreasonably withheld. However,
until said requesting party receives written consent to further disclose the
Confidential Information, the further disclosure is hereby prohibited and shall not
be made absent further order of this Court. If the designating party grants its
consent, then the person granted consent shall become a Qualified Person under
this Order.
5. Counsel for each party shall provide a copy of this Order to any person—other
than the Court, court officials, or the trier of fact—who will receive Confidential
Information in connection with this litigation, and shall advise such person of the
scope and effect of the provisions of this Order and the possibility of punishment
by contempt for violation thereof. Further, before disclosing Confidential
Information to any person other than the Court, court officials, or the trier of
fact, counsel for the party disclosing the information shall obtain the written
acknowledgment of that person binding him or her to the terms of this Order. The
4
written acknowledgment shall be in the form of Exhibit A attached hereto.
Counsel for the disclosing party shall retain the original written acknowledgment,
and furnish a copy of the signed written acknowledgment to the designating
party’s counsel within ten (10) business days.
6. Information shall be designated as Confidential Information within the meaning
of this Protective Order by following the protocol below that corresponds to the
format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret!Produced Pursuant to a Conf.
Agree./Prot. Order,” but not so as to obscure the content of the document.
b. For static image productions, by marking the first Bates-stamped page of
the image and each subsequent Bates-stamped page thereof containing
Confidential Information with the following Legend: “Confidential &
Proprietary/Produced Pursuant to a Conf. Agree./Prot. Order” or
“Confidential Proprietary & Trade SecretlProduced Pursuant to a Conf.
Agree./Prot. Order,” but not so as to obscure the content of the image.
c. For native file format productions, by prominently labeling the delivery
media for ESI designated as Confidential Information as follows:
“Confidential & Proprietary/Produced Pursuant to a Conf. Agree./Prot.
Order” or “Confidential Proprietary & Trade Secret/Produced Pursuant to
5
a Conf. Agree./Prot. Order.” In addition, at the election of the producing
party, the electronic file may have appended to the file’s name
(immediately following its Bates identifier) the following protective
legend:
“CONFIDENTIAL-SUBJ_TO PROTECTI yE ORDER IN CAUSE 20 14-CVF-
001 162-Di”. When any file so designated is converted to a hard-copy
document or static image for any purpose, the document or image shall
bear on each page a protective legend as described in 6.a. and 6.b. above.
If a native file containing Confidential Information is used during a
deposition, meet and confer, trial, or is otherwise disclosed post-
production, the party introducing, referencing, or submitting the native file
must append to the file’s name (immediately following its Bates identifier)
the protective legend:
“CON FIDENTIAL-SUBJ TO_PROTECTIVE ORDER IN CAUSE 20 14-CVF-
001162-Di”, if such Legend does not already appear in the file name. Any
party using a native file containing Confidential Information in a
deposition, hearing, or at trial must indicate the designation on the record
so that it is reflected in the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may
place on any hard-copy documents that are subject to this Protective Order
watermarks or seals to indicate the document is subject to a Protective
Order and is produced under the specific cause number.
7. Information previously produced during this litigation and not already marked as
Confidential Information shall be retroactively designated within thirty (30) days
6
of entry of this Order by providing written notice to the receiving parties of the
Bates identifier or other identifying characteristics for the Confidential
Information.
a. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, andJor (ii) with respect to ESI, take such reasonable
steps as will reliably identify the item(s) as having been designated as
Confidential Information.
b. Information that is unintentionally or inadvertently produced without
being designated as Confidential Information may be retroactively
designated by the producing party in the manner described in paragraph
7.a. above. If a retroactive designation is provided to the receiving party
in accordance with Texas Rule of Civil Procedure 193.3(d) the
receiving party must (i) make no further disclosure of such designated
information except as allowed under this Order; (ii) take reasonable steps
to notify any persons who were provided copies of such designated
information of the terms of this Order; and (iii) take reasonable steps to
reclaim any such designated information in the possession of any person
7
not permitted access to such information under the terms of this Order.
No party shall be deemed to have violated this Order for any disclosures
made prior to notification of any subsequent designation.
8. If Confidential Information is inadvertently disclosed to a person who is not a
Qualified Person, the disclosing party shall immediately upon discovery of the
inadvertent disclosure, send a written demand to the non-Qualified Person
demanding the immediate return andlor destruction of the inadvertently disclosed
Confidential Information, all copies made, and all notes that reproduce, copy, or
otherwise contain information derived from Confidential Information. Further the
disclosing party shall send written notice to the designating party’s counsel
providing:
a. The names and addresses of the entity or individual to whom the
Confidential Information was inadvertently disclosed.
b. The date of the disclosure.
c. A copy of the notice and demand sent to the entity or individual that
inadvertently received the Confidential Information.
9. To the extent that the parties produce information received from non-parties that
the non-parties have designated as “confidential” such information shall be treated
as Confidential Information in accordance with the terms of this Protective Order.
a. With respect to any document, ESI, or other material that is produced or
disclosed by a non-party, any party may designate such information as
Confidential Information within thirty (30) days of actual knowledge of
the production or disclosure, or such other time as may be agreed upon by
8
the parties.
b. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, and/or (ii) with respect to ESI, take such reasonable
steps as will reliably identifi the item(s) as having been designated as
Confidential Information.
c. Upon notice of designation pursuant to this Paragraph, the parties also
shall: (i) make no further disclosure of such designated information except
as allowed under this Order; (ii) take reasonable steps to notify any
persons who were provided copies of such designated information of the
terms of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not pennitted
access to such information under the terms of this Order. No person shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
d. The parties shall serve a copy of this Order simultaneously with any
discovery request made to a non-party.
10. Deposition testimony is Confidential Information under the terms of this Order
9
only if counsel for a party advises the court reporter and opposing counsel of that
designation at the deposition, or by written designation to all parties and the court
reporter within thirty (30) business days after receiving the deposition transcript.
All deposition transcripts shall be considered Confidential Information until thirty
(30) days following the receipt of the deposition transcript. In the event testimony
is designated as Confidential Information, the court reporter shall note the
designation on the record, shall separately transcribe those portions of the
testimony, and shall mark the face of such portion of the transcript as
“Confidential Information.” The parties may use Confidential Information during
any deposition, provided:
a. The witness is apprised of the tenns of this Order and executes the
acknowledgment attached hereto as Exhibit A.
b. The room is first cleared of all persons who are not Qualified Persons.
11. In the case of interrogatory answers, responses to request for production, and
responses to requests for admissions, the designation of Confidential Information
will be made by means of a statement in the answers or responses specifying that
the answers or responses or specific parts thereof are designated as Confidential
Information. A producing party shall place the following legend on each page of
interrogatory answers or responses to requests for admission: “Contains
Confidential Information.”
12. Confidential Information disclosed during a meet and confer or otherwise
exchanged in informal discovery, shall be protected pursuant to this Order if
counsel for the disclosing party advises the receiving party the information is
10
Confidential Information. If the Confidential Information disclosed during a meet
and confer or otherwise exchanged in informal discovery is in the form of hard
copy documents, static images, or native files, that information shall be
designated as Confidential Information pursuant to paragraphs 6 a., b., andlor c.
above, depending on the format of the materials introduced.
13. If a receiving party makes a good-faith determination that any materials
designated Confidential Information are not in fact “confidential” or “trade
secret,” the receiving party may request that a designating party rescind the
designation. Such requests shall not be rejected absent a good-faith determination
by the designating party that the Confidential Information is entitled to protection.
14. After making a good-faith effort to resolve any disputes regarding whether any
designated materials constitute Confidential Information, counsel of the party or
parties receiving the Confidential Information may challenge such designation of
all or any portion thereof by providing written notice of the challenge to the
designating party’s counsel. The designating party shall have twenty (20) days
from the date of receipt of a written challenge to file a motion for specific
protection with regard to any Confidential Information in dispute. If the party or
parties producing the Confidential Information does not timely file a motion for
specific protection, then the Confidential Information in dispute shall no longer be
subject to confidential treatment as provided in this Order.
15. If a timely motion tbr specific protection is filed, any disputed Confidential
Information will remain subject to this Order until a contrary determination is
made by the Court. At any hearing the designating party shall have the burden to
11
establish that party’s right to protection as if this Order did not exist. A party’s
failure to challenge the Confidential Information designation of any documents,
ESI, information, or testimony does not constitute an admission that the
document, ES!, information or testimony is, in fact, sensitive, confidential, or
proprietary. No party waives its right to contend at trial or hearing that such
document, ESI, information or testimony is not sensitive, confidential, privileged
or proprietary, provided the party provides notice of intention to do so at least
twenty (20) days before such trial or hearing.
16. Any papers filed with the Court in this action that make reference to Confidential
Infonnation, or contain extracts, summaries, or information derived therefrom,
shall be considered Confidential Information and shall be governed by the terms
of this Order. These papers shall be filed under seal and shall remain sealed with
the District Clerk’s Office so long as the materials retain their status as
Confidential Information.
17. Pursuant to the agreement of the parties no disclosure, production, or exchange of
information in this case shall constitute a waiver of any applicable attorney-client
privilege or of any applicable work product protection in this or any other federal
or state proceeding. This Protective Order applies to any information disclosed,
exchanged, produced, or discussed — whether intentionally or inadvertently —
among the parties, their counsel andlor any agents (such as vendors and experts)
in the course of this litigation. Upon learning of a production of privileged or
work product protected information, the producing party shall within ten (10)
days give all counsel of record notice of the production pursuant to Texas Rule of
12
Civil Procedure 193.3(d). The receiving party must promptly return, sequester or
destroy the produced information and all copies and destroy any notes that
reproduce, copy, or otherwise disclose the substance of the privileged or work
product protected information.
18. Further, production pursuant to this Protective Order shall not be deemed a waiver
of:
a. Any party’s right to object to any discovery requests on any ground.
b. Any party’s right to seek an order compelling discovery with respect to
any discovery request.
c. Any party’s use and review of its own Confidential Information in its sole
and complete discretion.
d. The status of any material as a trade secret.
19. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
20. Within one (1) year after the final resolution of this litigation, the plaintiff(s) and
The Mostyn Law Firm shall return or destroy Confidential Information they
received during this litigation. As to those materials that contain or reflect
Confidential Information, but that constitute or reflect the plaintiff(s) counsel’s
own work product, counsel for the plaintiff(s) are entitled to retain such work
product in their files in accordance with the provisions of this Protective Order, so
long as the work product is clearly marked to reflect that it contains information
subject to this Protective Order. Plaintiffs counsel is entitled to retain pleadings,
affidavits, motions, briefs, other papers filed with the Court, deposition
13
_____
transcripts, and the trial record even if such materials contain Confidential
Information, so long as such materials are clearly marked to reflect that they
contain information subject to this Protective Order and are maintained in
accordance with the provisions of this Protective Order. Plaintiffs counsel shall
certify in writing compliance with the provision of this paragraph after one (I)
year after the final resolution of this litigation.
This Order shall remain in effect unless or until amended, altered, modified, or vacated
by the Court or by the written agreement of all parties to this action filed with the Court,
pursuant to the Texas Rules of Civil Procedure.
ITISSOORDEREDthis dayof ,2015.
JUDGE PRESIDING
APPROVED AS TO FORM ONLY:
J. Steve Mostyn Sofia A. Aamon
State Bar No. 00798389 State Batklo. 00784811
Andrew P. Taylor Dan K. Worthington
State Bar No. 24070723 State Bar No. 00785282
THE MOSTYN LAW FIRM Elizabeth S. Cantu
3810 W. Alabama Street State Bar No. 24013455
Houston, Texas 77027 Charles W. Downing
(713) 861-6616—Phone State Bar No. 24069631
(713) 861-8084 Fax
—
ATLAS, HALL & RODRIGUEZ, LLP
ATTORNEYS FOR PLAINTIFF 818 Pecan Blvd.
McAllen, Texas 78501
(956) 682-5501 Phone
—
(956) 686-6109 Fax
—
ATTORNEYS FOR DEFENDANTS
_____________
______________________
Filed
7/2/2015 439:03 PM
Esther Degollado
District Clerk
Webb District
Jeanie Aguilar
2O14CVFOO1 162D1
CAUSE NO. 2014-CVF-001162-D1
RAUL RODRIGUEZ AND NOEMI § IN THE DISTRICT COURT OF
RODRIGUEZ, §
§
Plaintiff, §
V. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND FELIPE §
FARIAS, §
§
§ TH
49
Defendants. § JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
in order to be provided access to information
designated as Confidential Information under the Protective Order entered in Cause No. 2014-
CVF-001l62-Dl represents and agrees as follows:
1. I have been provided with a copy of the Protective Order entered by the Court in
the above matter. I have reviewed said copy and I am familiar with its terms.
2. With regard to any and all Confidential Information to which I am given access in
connection with the above matter, I agree to be bound by the provisions of the
Protective Order.
3. I consent to the exercise of junsdiction over me by the Court with respect to the
Protective Order.
4. 1 agree that copies of this undertaking will be sent to counsel of record for all
parties in the above litigation.
DATED: SIGNATURE
A
:rt,wI
1/
Filed
7/212015 4;39;03 PM
Esther Degollado
District Clerk
Webb District
Jeanie Aguilar
ATLAS, HALL & RODRIGUEZ, LLP 2O14CVFOO1 162D1
ATTORNEYS AT LAW
P.O. BOX 3725 (78502-3725)
818W. PECAN BLVD. (78501-2418)
SOFIA RAMON McALLEN. TEXAS
srarnon@(aI(asIIaII.corn TEL. (956) 682-5501 FAx (956) 686-6109
ATLAsHAU..COM
July 2, 2015
WA ELECTRONIC FILING
Esther Degollado
Webb County District Clerk
1110 Victoria Street, Suite 203
Laredo, Texas 78040
Re: Cause No. 2014CVF001162 Dl; RauI Rodriguez and Noemi Rodriguez
v. State Farm Lloyds and Felipe Farias; In the 49th District Court of
Webb County, Texas
Dear Ms. Degollado:
Attached please find the proposed Protective Order which has been signed by
both parties. I would appreciate it very much if you would forward the document to the
court for consideration and entry.
Thank you very much for your attention to this matter. Should you have any
questions, please do not hesitate to call our office.
Very truly yours,
ATLAS, HALL & RODRIGUEZ, LLP
By:
Sofi
SARJbc
Enclosure
cc: J. Steve Mostyn and Andrew Taylor (via Fax 713/8618084)
Dan. K. Worthington (Firm)
BROWNSVILLE OUNCE UVALDE OFFICE
AUSTIN OUNCE
P.O. BOX 6369 (76523-6369) (24 N. EASTSFREET
7200 N MOI’AC EXFY, STE 430
SOW. MORRISON RD ,STE A UVALDE. TEXAS 78501-5312
AUSTIN, TEXAS 7873-2696
BROWNSVILLE, TEXAS 7S520-7262 TOE (830)278-3100
TEL (512)583-0579
TEl. (956) 574-9333 FAX (044) 272-4209
FAX (956) 574-9337
TAB 18
OF THE RECORD
CAUSE NO. 2014-CVF-001048-Dl
ALMA PENA § IN THE DISTRICT COURT
Plaintiff §
§
v. § WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LAMER § Tfl
49
Defendants § JVDICIAL DISTRICT
PROTECTIVE ORDER
This Court finds that a Protective Order is wairanted to protect Confidential hifonnation,
which will be produced or exchanged in this litigation, and that the following provisions,
limitations, and prohibitions are appropriate pursuant to and in conformity with the Texas Rules
of Civil Procedure. Therefore, it is hereby ORDERED that;
1. All Confidential Information produced or exchanged in the course of this
litigation shall he used solely for the purpose of the preparation and trial of this
litigation or Related Litigation against State Farm Lloyds (including its
employees) and Becky Lanier (“Defendants”) or any third party adjusting firm
(including its employees) that adjusted this claim, and ft>r no other purpose.
Subject to paragraphs Ia and Lb. below, “Related Litigation,” as used herein
means a first-parry lawsuit flied in Texas by The Mostyn Law Finn arising out of
a claim for damages to residential, commercial, or personal property as a result of
a hailstorm that occurred in Texas. Confidential Inforznatou, or extracts,
summaries, or information derived from Confidential Information, shall not be
disclosed to any person except in accordance with the tenDs of this Order.
Qrnfldential Information may only be copied or reproduced as reasonably
necessary for use solely in this litigation or Related litigation, subject to the
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limitations contained herein.
a. State Farm’s institutional materials that are not clan-specific or adjuster-
specific will be Bates-labeled PENARODMIFTXOOOOVO0IPROD -
PENARODMLFTX00000756PROD. Documents Bates-labeled
PENARODMLFTX0000000IPROP - PENAKODMLFTX000007$6PROD may be
shared among Qualified Persons in Related Litigation so long as The
Mostyn Law Finn is representing the Plaintiff(s) in the Related Litigation.
If The Mostyn Law Firm withdraws from any case qualifying as Related
Litigation or later associates another lawyer or law firm in the Related
Litigation, State Farm’s consent to the use of the documents Bates-labeled
PENARODMLFTX0000000IPROD - PENARODMLFTX000007S6PKOD in that
Related Litigation is automatically revoked. Documents Bates-labeled
PENARODMLPTX0000000IPROD PENARODMLFTX000007S6PROD shall not
be considered to have been produced in and for Related Litigation as
“official discovery” unless they are responsive to a written discovery
request to which State Farm has not objected in that Related Litigation or
the Court has overnilcd State Farm’s objections and ordered production in
that Related Litigation. Documents Bates-labeled
PENARODMLFTX0000000IPRCD - PENARQPMLflX00000756PR.OO that are
not official discovery in a Related Litigation may not be used at
depositions, hearings or at trial in that Related Litigation unless the
plaintiffs in the Related Litigation have made a valid request for
production of such documents, the date for the response to such request(s)
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has passed, and The Mostyn Law Firm has given notice of intent to use the
document at a deposition or other proceeding fourteen (14) days prior to
the proceeding,
b. Claim-specific, adjuster-specific, or other materials produced in this
litigation that are not Bates-labeled PENARODMLETX0000000WROJ) -
PENARODMLFTX00000756PRCD may not be shared in Related Litigation,
but may only be shared among Qualified Persons in the lawsuit in which
the materials were pmduced. If a receiving party intends to use any
document Bates-labeled PENARODMLFTX0000000 1 PaOD
?ENAROOMLFTX000007S6PROD in Related Litigation, that party must first
obtain written consent of the producing party or leave of court.
2. “Confidential Information,” as used herein, means any information of any type
that is designated as “Confidential” and/or “Tzade Secret” by any of the
producing or receiving parties, whether it is: a document, electronically stored
infonnation (“ESI”), or other material; information contained in a docuinen.t, ESI,
or other material; information revealed during a deposition; information revealed
in an interrogatory answer or written responses to discovery; information revealed
during a meet and confer, or otherwise in connection with formal or informal
discovery.
3. The disclosure of Confidential Information is restricted to Qualified Persons.
“Qualified Persons,” as used herein, means: the parties to this pending litigation;
their respective counsel; counsel’s sraff expert witnesses; outside service-
providers and consultants providing services related to document and ESI
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processing, hosting, review, and production the Court; other court officials
(including court reporters); the trier ot’ fact pursuant to a sealing order; and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any
other person may be designated as a Qualified Person by order of this Court, after
notice to all parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential
Information to a person who is not a Qualified Person on counsel for the
desiiating party, and consent shall not be unreasonably withheld. However,
until said requesting party receives written consent to further disclose the
Confidential Information, the fluter disclosure is hereby pwhibited and shall not
be made absent further order of this Court. If the designating party grants its
consent, then the person granted consent shall become a Qualified Person under
this Order.
5 Counsel for each party shall provide a copy of this Order to any person—other
than the Court, court officials, or the trier of fuct—who will receive Confidential
Information in connection with this litigation, and shall advise such person of the
scope and effect of the provisions of this Order and the possibility of punishment
by coutenipt for violation thereof. Further, before disclosing Confidential
Information to any person other than the Court, court officials, or the trier of
fact, counsel fbr the party disclosing the information shall obtain the written
acknowledgment of that person binding him or her to the terms of this Order. The
written acknowledgment shall be in the form of Exhibit A attached hereto.
Counsel for the disclosing pasty shall retain the original written acknowledgment,
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and furnish a copy of the signed written aclaowledgment to the designating
party’s counsel within ten (10) business days.
6. Infonnation shall be designated as ConfIdential Information within the meaning
of this Protective Order by following the protocol below that cotresponds to the
format produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing
Confidential Information with the foUDwing legend: “Confidential &
Proprietary/Produced Pursuant to a ConL Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Conf.
AgreejProt. Order,” but not so as to obscure the content of the document.
b. For static image productions, by marking the first Bates-stamped page of
the image and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a ConE AgreefProt Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a ConE
Agree./Prot. Order,” but not so as to obscure the content of the image.
c. For native file fbi-mat productions, by promineuLly labeling the delivery
media for ESI designated as Confidential Information as follows:
“Confidential & ProprietaryiProduced Pursuant to a ConE AgreefProt.
Order” or “Confidential Proprietary & Tnde Secret/Produced Pursuant to
a ConE AgreelProt. Order.” In addition, at the election of the producing
party, the eleconic file may have appended to the file’s name
S
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(immediately fouowing its Bates identifier) the following protective
legend:
“CONFIDENTIAL$1.J5J_TQ_PROTECTIVE_QRDER_ltq_CAU$E_2014-CVF-
001048-131”. When any file so designated is converted to a hard-copy
document or static image for any puose, the document or image shall
bear on each page a protective leg&nd as described in 6.a. and 6.b. above.
If a native file containing Confidential Information is used during a
deposition, meet and confer, trial, or is otherwise disclosed post-
production, the party introducing, referencing, or submitting the native file
must append to the file’s name (immediately following its Bates identifier)
the protective legend:
“CONFIPENTIAL-SUBJ_TQPROTECrIVE_ORDER_INJDAUSE_2014-CVF-
001048-01”, if such legend does not already appear in the file name. Any
party using a native file containing Confidential Information in a
deposition, bearing, or at trial must indicate the designation on the record
so that it is reflected in the transcript of the proceedings.
d. At the sole discretion of the producing party, the producing party may
place on any bard-copy documents that are subject to this Protective Order
waterinarks or seals to indicate the document is subject to a Protective
Order mid is produced under the specific cause number.
7. Information previously produced during this litigation and not already marked as
Confidential Information shall be retroactively designated within thirty (30) days
of entry of this Order by providing written notice to the receiving parties of the
Bares identifier or other identifying characteristics for the Confidential
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Information.
a Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such inThrmation
in their custody orpossession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (I) affix the legend to aM copies of such designated information in the
party’s possession, custody, or control consistent with the tents of this
Protective Order, and/or (ii) with respect to ESI, take such reasonable
steps as will reliably identit’ the item(s) as having been designated as
Confidential !nforznation.
b. Information that is unintentionally or inadvertently produced without
being designated as Confidential Tnlbrmanion may be retroactively
designated by the producing party in the manner described in paragraph
7.a. above. If a retroactive designation is provided to the receiving party
in accordance with Texas Rule of Civil Procedure 193.3(d) the
receiving party must (I) make no fi.uther disclosure of such designated
information except as allowed under this OMer (ii) take reasonable steps
to notify any persons who were provided copies of such designated
intbnnation of the terms of this Order; and (iii) take reasonable steps to
reclaim any such designated information in the possession of any person
not permitted access to such information under the terms of this Order.
No party shall be deemed to have violated this Order for any disclosures
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made prior to notification of any subsequent designadoa
8. If Confidential hiforination is inadvertently disclosed to a person who is not a
Qualified Person, the disclosing party shall immediately upon discovery of the
inadvertent disclosure, send a written demand to the non-Qualified Person
demanding the immediate return andior destruction of the inadvertently disclosed
Confidential lufonuation, all copies made, and all notes that reproduce, copy, or
otherwise contain information derived from Confidential Information. Further the
disclosing party shall send written notice to the designating party’s counsel
providing:
a. The names and addresses of the entity or individual to whom the
Confidential Information was inadvertently disclosed.
b. The date of the disclosure.
c. A copy of the notice and denand sent to the entity or individual that
inadvertently received the Confidential Inlbrmation.
9. To the extent that the parties produce information received fivm non-parties that
the non-parties have designated as “confidential” such inxmation shall be wetted
as Confidential Information in accordance with the tenus of this Protective Order.
a. With respect to any document, ESI, or other material that is produced or
disclosed by a on.pany, any party may designate such information as
Confidential Information within thirty (30) days of actual knowledge of
the production or disclosure, or such other time as may be agreed upon by
the parties.
b. Within thirty (30) days of receipt of such notice, or such other time as may
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be agreed upon by the parties, any parties receiving such notice shall
return to tbe designating party all undesignated copies of such infonnation
in their custody or possession, in exchange for the production of properly
designated idormation, or alternately (upon the agreement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or control consistent with the terms of this
Protective Order, and/cr (ii) with respect to ESI, mice such reasonable
steps as wiU reflably identify the item(s) as having been designated as
Confidential Information.
c. Upon notice of designation pursuant to this Paragraph, the patties also
shall: (i) make no further disclosure of such designated inrmation except
as allowed under this Order (ii) take reasonable steps to notify any
persons who were provided copies of such designated infoniiation of the
terms of this Order; and (iii) cake reasonable steps to reclaim any such
designated infbrniation in the possession of any person not permitted
access to such information under the terms of this Order. No person shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
d. The parties shall serve a copy of this Order simultaneously with any
discovery request made to a non-party.
10. Deposition testimony is Confidential Jnfonnation under the terms of this Order
only if counsel for a pasty advises the court reporter and opposing counsel of that
designation at the deposition, or by written designation to all parties and the court
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reporter within thirty (30) business days after receiving the deposition transcript.
All deposition transcripts shall be considered Confidential Infonnation until thirty
(30) days following the receipt of the deposition uanscript. In the event testimony
is designated as Confidential Information, the court reporter shall note the
designation on the recoix. shall separately transcribe those portions of the
testimony, and shaU mark the face of such portion of the transcript as
“Confidential thförmation,” The parties may use Confidential Jnfonnation during
any deposition, provided:
a. The witness is apprised of the terms of this Order and executes the
aclwowlcdgmern attached hereto as Exhibit A.
b. The room is first cleared of all persons who are not Qualified Persons.
11. In the case of interrogatory answers, responses to request for production, and
responses to requests for adtnissions, the designation of Confidential Information
will be made by means of a statement in the answers or responses specifying that
the answers or responses or specific parts thereof are designated as Confidential
Information. A producing party shall place the following legend on each page of
interrogatory answers or responses to requests for admission: “Contains
Confidential Information.”
ii Confidential Information disclosed during a meet and confer or otherwise
exchanged in informal discovery, shall be protected pursuant to this Order if
counsel for the disclosing party advises the receiving pasty the information is
Confidential Information. If the Confidential Information disclosed during a meet
and confer or otherwise exchanged in informal discovery is in the form of hard-
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copy documents, static images, or native files, that information shall be
designated as Confldenciai Information pursuant to paragraphs 6 a., b., and/or c.
above, depending on the fonnat of the materials introduced.
13. If a receiving party makes a good-ith determination that any materials
designated Confidential Information are not in fact “confidential” or “trade
secret,” the receiving party may request that a designating party rescind the
designation. Such requests shall not be rejected absent a good-faith determination
by che designating party that the Confidential lnfbrmation is entitled to protection.
14. After making a good-faith effort to resolve any disputes regarding whether any
designated materials constitute Confidential Information, counsel of the party or
parties receiving the Cozifidential Information may challenge such designation of
all or any portion thereof by providing written notice of the challenge to the
designating party’s counsel. The designating party shall have twenty (20) days
from the date of receipt of a written challenge to file a motion for specific
protection with regard to any Confidential Information in dispute. Lithe party or
parties producing the Confidential Information does not timely me a motion for
specific protection, then the Confidential Information in dispute shall no longer be
subject to confidential treatment as provided in this OMer.
15. If a timely motion for specific protection is flied, any disputed Confidential
Jafonnation will remain subject to this Order until a contrary determination is
made by the Court At any hearing the designating party shall have the burden to
establish that party’s right to protection as if this Order did not exist. A party’s
failure to challenge the Confidential Information designation of any documents,
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ESI, information, or testimony does not constitute an admission that the
document, ESI, information or testimony is, in fact, sensitive, confidential, or
proprietary. No party waives its right to contend at trial or hearing that such
document, ESI, information or testimony is not sensitive, confidential, privileged
or proprietary, provided the party provides notice of intention to do so at least
twenty (20) days before such thai or hearing.
16. Any papexs filed with the Court in this action that make reference to Coafidential
Information, or contain extracts, summaries, or infonnation derived therefrom,
shall be considered Confidential 1nfomation and shall be governed by the terms
of this Order. These papers shall be filed under seal and shall remain sealed with
the Disthct Clerk’s Office so long as the materials retain their status as
Confidential Information.
17. Pursuant to the agreement of the panics no disclosure, production, or exchange of
information in this case shalt constitute a waiver of any applicable attorney-client
privilege or of any applicable work product protection in this or any other federal
or state proceeding. This Protective Order applies to any information disclosed,
exchanged, produced, or discussed — whether intentionally or inadvertently —
among the parties, their counsel and/or any agents (such as vendors and experts)
in the course of this litigation. Upon learning of a production of privileged or
work product protected information, the producing party shall within ten (10)
days give all counsel of record notice of the production pursuant to Texas Rule of
Civil Procedure 193.3(d). The receiving pasty must promptly return, sequester or
destroy the produced information and all copies and destroy any notes that
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reproduce, copy, or otherwise disclose the substance of the privileged or work
product protected information.
18. Further, production pursuant to this Protective Order shall not be deemed a waiver
of:
a. Any party’s right to object to any discovery requests on any ground.
b. Any party’s right to seek an order compelling discovery with respect to
any discovery request.
c. Any party’s use and review of its own Confidential Information in its sole
and complete discretion.
d. The status of any material as a trade secret.
19. Any Qualified Person who obtains infomiation pursuant to this Order eosenzs to
submitting to the jurisdiction of this Court for enforcement of this Order.
20. Within one (1) year after the final resolution of this litigation, the plaintiff(s) and
The Mostyn Law Firm shall return or destroy Confidential Information they
received during this litigation. As to those materials that contain or reflect
Confidential Information, but that constitute or reflect the plaintiftZs) counsel’s
own work product, counsel for the plaintis) are entitled to retain such work
product in their files in accordance with the provisions of this Protective Order, so
long as the work product is clearly marked to reflect that it contains information
subject to this Protective Order. Plaintiff’s counsel is entitled to retain pleadings,
affidavits, motions, briefs, other papers med with the Court, deposition
transcripts, and the thai record even if such materials contain Confidential
Information, so long as such materials are clearly marked to reflect that they
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contain information subject to this Protective Order and are maintained in
accordance with the provisions of this Protective Order. Plaintiff’s counsel shall
certify in writing compliance with the provision of this paraaph after one (1)
year after the final resolution of this litigation.
This Order shall remain in effect unless or until amended, altered, modified, or vacated
by the Court or by the written agreement of all parties to this action filed with the Cowl,
pursuant to the Texas Rules of Civil Procedure.
‘-it
3 dayof
IT[SSOORDEREDth1s/ !
9
Vu 2015.
JUDGE
nil /
APPROVED AS TO tORM ONLY:
y/Mn
I. Steve Mostyn Sofld-4f Ranion
State BarNo. 00798389 State arNo. 00784811
Andrew P. Taylor Dan IC. Worthington
State Bar No. 24070723 State Bar Nc. 00785282
THE MOSTYN LAW FIRM Elizabeth S. Cantu
3810W. Alabama Street State Bar No. 24013455
Houston, Texas 77027 Charles W. Downing
(713)861-6616—Phone State Bar No, 24069631
(713) 861-8084—Fax ATLAS, HALL & RODRIGUEZ, LLP
AflORNEYS FOR PLAINTIFF gjg Pan Blvd.
MeAllen, Texas 78501
(956) 682-5501 —Phone
(956) 686-6109 Fax
—
ATTORNEYS FOR DEFENDANTS
14
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Fil d
712/20154:41:49 M
Esther Degolla o
District CI rk
Webb Dist ct
Jeenle Agul er
2014CVr001o48 i
CAUSE NO. 2014•CVF4O1O4S-DI
ALMA PENÃ § IN THE DISThICT COURT
Plaintiff §
§
§ WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND §
BECKY LAMER § 49111
Defendants § JUDICIAL DISTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
hi order to be provided access to information
designated as Confidential Information under the Protective Order entered in Cause No. 2014-
CVF-001048-D 1 represents and aees as follows:
1. I have been provided with a copy of the Protective Order entered by the Court in
‘he above matter. I have reviewed said copy and I am fniiiar with its terms.
2. With regard to any and all Confidential Information to which I am given access in
connection with the above matter, I agree to be bound by the provisions of the
Pwtecrive Order.
3. I consent to the eezeise ot’jurisdicticn over me by the Court with respect to the
Protective Order.
4. I agree that copies of this undertaking will be sent to counsel of recoM for all
parties in the above Litigation.
DATED: SIGNATURE
EXHIBIT A
Raceived Jul—13—2015 02:5$pm From—956 523 5200 To—ATLAS & HALL L.L.P. Page 015
TAB 19
OF THE RECORD
CAUSE NO. 2014-CVF-00fl62-D1
RAUL RODRIGUEZ AN]) NOEMI § IN TUE DISTRICT COURT OF
RODRIGUEZ §
§
Plalutiff, §
§ WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND FELIPE §
EARThS, §
§
Defendants. 49 JUDICIAL DISTRICT
PROTECTWE ORDER
This Court finds that a Protective Order is warranted to protect Confidential Information,
which will be produced or exchanged In this litigation, and that the following provisions,
limitations, and prohibitions are appropriate pursuant to and in conformity with the Texas Rifles
of Civil Procedure. Therefore, it is hereby ORDERED that:
I. All Confidential Information produced or exchanged in the ccuzse of tIds
litigation shall be used solely for the pwpose of the preparation and nial of this
litigation or Related Litigation against State Farm Lloyds (including its
employees) and Felipe Parias (“De&ndarns”) or any thin! party adjusting Urm
(including its employees) that adjusted this claim, and for no other puipose.
Subject to paragraphs l.a. and Lb. below, “Related Litigation,” as used herein
means a first-party lawsuit filed in Texas by The Mostyn Law Firm arising out of
a claim for damages to residential, coinniercial, or personal pmperty as a result of
a hailstorm that occurred in Texas. Confidential Information, or extracts,
summaries, or information derived from Confidential Information, shall not be
disclosed to any person except in aecordance with the terms of this Order.
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Confidential Information may only be copied or reproduced as reasonably
necessary for use solely in this litigation or Related Litigation, subject to the
limitations contained herein.
a. Slate Farm’s institutional materials that are not claim-specific or adjuster-
specific will be Bates-labeled PENAROPMLFPX0000000IPROD -
PENARODMLFTX000007S6PROD. Dociwzents Bates-labeled
PENARC)oMLrrX0000000 1 fliOf) - PENARODMLFTX000007Z6PROD may be
shared among Qualified Persons in Related Litigation so long as The
Mostyn Law Firm is representing the Plaintiff(s) in the Related Litigation.
If The ?vtostyn Law Firm withdraws from any case qualifying as Related
Litigation or later associates anotha- lawyer or law firm in the Related
Litigation, State Farm’s consent to the ase of the documents Bates-labeled
PENARODMLFTX00000001PROD - PENARODMLFTX00000Y56PROD in that
Related Litigation is automatically revoked. Documents Bates-labeled
PENARODMLk’TX0000000IPROI) - PENARODMLFTX000007S6PRQP shall not
be considered to have been produced in and for Related Litigation as
“official discovexy” unless they are responsive to a written discovery
request to which State Farm has not objected in that Related Litigation or
the Court has overruled State Farm’s objections and ordered production in
that Related Litigation. Documents Bates-labeled
PENARODMLFIX0000000IPROI) - PENARODMLFTX000007S6PROD that are
not official discovery in a Related Litigation may not be used at
depositions, hearings or at trial in that Related Litigation unless the
2
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plaintiffs in the Related Litigation have made a valid request for
production of such documents, the date for the response to such request(s)
has passed, and The Mostyn Law Finn has given notice of intent to use the
document at a deposition or other proceeding fourteen (14) days prior to
the proceeding.
b. Clairn-specitic, adjuster-specific, or other matthals produced in this
litigation that are not Bates-labeled PENARODMLFTX0000000IPROD -
PENARODMLFTX000007S&PROO may not be shared in Related Litigation,
but may only be shared among Qualified Persons in the lawsuit in which
the materials were produced. If a receiving party intends to use any
document Bates-labeled PENARODMLFTX0000000INLOI) -
PENARODMLFTX000007S6PROD in Related Litigation, that party must first
obtain written consent of the producing party or leave of court
2. “Confidential Infonnation,” as used herein, means any information of any type
that is desiiated as “Confidential” and/or “Trade Secret” by any of the
producing or receiving parties, whether it is; a document, electronically stored
information (“ESI”), or other material; information contained in a document, ESI,
or other material; information revealed during a deposition; information revealed
in an interrogatory answer or written responses to discovery; information revealed
during a meet and confer, or otherwise in connection with formal or informal
discovery.
3. The disclosure of Confidential Information is restñcted to Qualified Persons.
“Qualified Persons,” as used herein, means; the parties to this pending litigation,
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their respective counsel; counsel’s staft expert wimesses; outside service-
providers and consultants providing services related to document and ES!
processing, hosting, review, and production; the Court other court officials
(including court reporters); the trier of fact pursuant to a sealing order and any
person so designated pursuant to paragraph 4 herein. If this Court so elects, any
other person may be designated as a Qualified Person by order of this Court, after
notice to all parties and a hearing.
4. Any party may serve a written request for authority to disclose Confidential
Information to a person who is not a Qualified Person on counsel for the
designating party, and consent shall not be unreasonably withheld. However,
until said requesthag party receives written consent to ñinher disclose the
Confidential Infonnation, the thrther disclosure is hereby pmhibited and shall not
be made absent further order of this Court. If the designating party grants its
consent. then the person granted consent shall become a Qualified Person under
this Order.
5. Counsel for each party shall provide a copy of this Order to any person—other
than the Court, court officials, or the trier of fact—who will receive Confidential
Information in connection with this litigation, and shall advise such person of the
scope and effect of the provisions of this Order and the possibility of punishment
by contempt for violation thereof. Further, before disclosing Confidential
Information to any person other than the Couit, court officials, or the trier of
fact, counsel for the party disclosing the information shall obtain the written
acknowledgment of that person binding him or her to the terms of this OrderS The
4
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tnitteu acknowledgment shall be in the form of Exhibit A attached hereto.
Counsel for the disclosing party shall retain the original written acknowlednent,
wit! fhrnish a copy of the signed written acknowledgment to the designating
pasty’s counsel Mthin ten (10) business days.
6. biformation shall be designated as Confidential Information within the meaning
of this Protective Order by following the protocol below that corresponds to the
ibnnat produced:
a. For hard-copy documents, by marking the first Bates-stamped page of the
document and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a Conf Agree/Fret. Order” or
“Confidential Proprietary & Trade Secrct’Produced Pursuant to a Conf
Agrea/Prot. Order,” but not so as to obscure the content of the document.
b. For static image productions, by marking the first Bates-stamped page of
the image and each subsequent Bates-stamped page thereof containing
Confidential Information with the following legend: “Confidential &
Proprietary/Produced Pursuant to a ConE Agree./Prot. Order” or
“Confidential Proprietary & Trade Secret/Produced Pursuant to a Couf.
AgreeiProt. Order,” but not so as to obscure the content of the image.
c. For native file fonnat productions, by prominently labeling the delivery
media for ESI designated as Confidential Information as follows:
“Confidential & Proprietary/Produced Pursuant to a ConE Agree./Prot.
Order” or “Confidential Proprietary & Trade Secret/Produced Pursuant to
5
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a Cord. AgreciProt. Order.” In addition, at the election of the producing
party, the clcconio file may have appended to the me’s name
(immediately following its Bates identifier) the following protective
legend;
toNnDENTLc-suBJjo_rRoTEcrlvE_oRnEaJN_cMJsE_2ol4.cvF-
001162-Di”. When any file so designated is converted to a hard-copy
document or static image for any purpose, the document or image shall
bear on each page a protective legend as described in 6.a. and 6.b. above
If a native file containing Confidential Information is used during a
deposition, meet and confer, thai, or is otherwise disclosed post
pwduction, the party introducing, referencing, or submitting the native file
must append to the file’s name (immediately following its Bates identifier)
the protective legend:
“CONFIDENTIAL-SUBLTO_PROTECFIVE_ORDERJNCAUSE_2014-CW-
001162-Dr. if such legend does not already appear in the file name. Any
party using a native file containing Confidential Infonnation in a
deposition, hearing, or at trial must indicate the designation on the record
so that it is reflected in the tanscript of the proceedings.
d. At the sole discretion of the producing party, the producing party may
place on any hard-copy documents that are subject to this Protective Order
wateiuiarlcs or seals to indicate the docunern is subject to a Protective
Order and is produced under the specific cause number.
7. lifonnation previously produced during this litigation and nor already marked as
Confidential Information shall be retroactively desiated within thirty (30) days
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of entry of this Order by providing written notice to the receiving parties of the
Bates identifier or other identi5’ing characteristics for the Confidential
Information.
a. Within thirty (30) days of receipt of such notice, or such other lime as may
be agreed upon by the parties, any parties receiving such notice shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the aeement of the parties)
shall (i) affix the legend to all copies of such designated information in the
party’s possession, custody, or contol consistent with the Wins of this
Protective Order, and/or (ii) with respect to ESI, take such reasonable
steps as will reliably identify the item(s) s having been designated as
Confidential Infoimation.
b. Information that is unintentionally or inadvertently produced without
being designated as Confidential Information may be retoactively
designated by the producing party in the manner described in paraph
7.a. above. If a retroactive designation is provided to the receiving party
in accordance with Texas Rule of Civil Procedure 193.3(d) the
receiving party must (i) make no fkuther disclosure of such designated
information except as allowed under this OMer (ii) take reasonable steps
to notify any persons who were provided copies of such desiated
inforniation of the terms of this Order; and (iii) take reasonable steps to
reclaim any such designated information in the possession of any person
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not permitted access to such information wider the terms of this Order.
No pasty shall be deemed to hive violated this Order for any disclosures
made prior to notification of any subsequent designatica
8. 11 Confideaial Information is inadvertently disclosed to a person who is not a
Qualified Person, the disclosing party shall immediately upon discovery of the
inadvertent disclosure, send a written demand to the non-Qualified Person
demanding the immediate return andfor destruction of the inadvertently disclosed
Confidential Information, all copies made, and all notes that reproduce, copy, or.
otherwise contain information dezived from Confidential Information. Fuither the
disclosing party shall send written notice to the designating party’s counsel
providing:
a. The names and addresses of the entity or individual to whom the
Confidential Information was inadvertently disclosed,
b. The date of the disclosure.
c. A copy of the notice and demand sent to the entity or individual that
inadvertently received the Confidential Infonnation.
9. To the extent that the parties produce information received from non-panics that
the non-parties have designated as “confidential” such iafbrmatiou shall be treated
as Confidential Infosmariou in accordance with the terms of this Protective Order.
a. With respect to any document, ESI, or other material that is produced or
disclosed by a non-party, any party may designate such information as
Confidential Information within thirty (30) days of actual knowledge of
the production or disclosure, or such other time as may be agreed upon by
S
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the parties.
b. Within thirty (30) days of receipt of such notice, or such other time as may
be agreed upon by the parties, any parties receiving such notice, shall
return to the designating party all undesignated copies of such information
in their custody or possession, in exchange for the production of properly
designated information, or alternately (upon the agreement of the parties)
shall (I) affix the legend to all copies of such designated infounation in the
party’s possession, custody, or eontol consistent with the terms of this
Protective Order, and/or (ii) with respect to ES!, take such reasonable
steps as will reliably identi& the item(s) as having been designated as
Confidential Information.
c. Upon notice of designation ptrsuant to this Paragraph, the parties also
shall: (1) make no further disclosure otsuth designated infonnation except
as allowed under this Order; (ii) take reasonable steps to notifSr any
persons who were provided copies of such designated infOrmation of the
tenns of this Order; and (iii) take reasonable steps to reclaim any such
designated information in the possession of any person not permitted
access to such information under the terms of this Order. No person shall
be deemed to have violated this Order for any disclosures made prior to
notification of any subsequent designation.
ci. The parties shall serve a copy of this Order simultaneously with any
discovery request made to a non-party.
10. Deposition testimony is Confidential Information under the terms of this Order
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only if counsel for a party advises the court reporter and opposing counsel of that
designation at the deposition, or by written designation to all parties and the court
reporter within thirty (30) business days after receiving the deposition transcript.
All deposition transcripts shall be considered Confidential Information until thirty
(30) days following the receipt of the deposition transcript. In the event testimony
is designated as Con5dential Infomialion, the court reporter shall note the
designation on the record, shall separately transcribe those portions of the
testimony, and shall mark the face of such portion of the tanscript as
“Confidential Infinmzation.” The parties may use Confidential Information during
any deposition, provided:
a. The witness is apprised of the terms of this Order and executes the
aclaiowledgment attached hereto as Exhibit A.
b. The room is tint cleared of all persons who are not Qualified Persons
11. Tn the case of interrogatory answers, responses to request for produotion, and
responses to requests for admissions, the designation of Confidential Information
will be made by means of a statement in the answers or responses specifying that
the answers or responses or specific parts thereof are designated as Confidential
Information. A producing pazty shall place the following legend on each page of
interrogatory answers or responses to requests for admissiozt “Contains
Confidential Infbrmatioa”
12. Confidential Information disclosed during a meet and cothr or otherwise
exchanged in informal discovery, shall be protected pursuant to this Order if
counsel for the disclosing party advises the receiving party the information is
Jo
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Confidential Information. If the confidential Information disclosed during a meet
and confer or otherwise exchanged in informal discovery is in the form of hard
copy documents, static images, or native files, that infirmation shall be
designated as Confidential Information pursuant to paraaphs 6 a., b., and/or a.
above, depending on the format of the materials introduce&
13. If a receiving party makes a good-faith determination that any materials
designated Confidential Information are not in fact “confidential” or “nade
secret,” the receiving party may request that a designating party rescind the
designation. Such requests shall not be rejected absent a good-faith determination
by the designating party that the Confidential Information is entitled to protection.
14. After making a good-faith effort to resolve any disputes regarding whether any
designated materials constitute Confidential Information, counsel of the party or
parties receiving the Confidential Information may challenge such designation of
all or any portion thereof by providing written notice of the challenge to the
designating party’s counsel. The designating parry shall have twenty (20) days
tm the date of receipt of a written challenge to file a motion for specific
protection with regard to any Confidential Informat.ion in dispute. Lithe patty or
parties producing the Confidential Intbrmation does not timely file a motion for
specific protection, then the Confidential Information in dispute shall no longer be
subject to confidential treatment as provided in this Order.
15. If a timely motion for specific protection is filed, any disputed Confidential
Information will remain subject to this Order until a eontraiy determination is
made by the Court At any hearing the designating party shall have the burden to
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establish that party’s right to protection as if this Order did not exist. A pasty’s
failure to challenge the Confidential Inloimadon designation of any documents,
ES!. information, or testimony does not constitute an admission that the
document, ESI, information or testimony is, in fact, sensitive, confidential, or
proprietary. No pany waives its right to contend at trial or hearing that such
document, ESI, information or testimony is not sensitive, confidential, privileged
or proprietary, provided the party provides notice of intention to do so at least
twenty (20) days before such trial or hearing.
16. Any papers filed with the Court in this action that make reference to Confidential
Information, or contain extracts, summaries, or information derived therefrom,
shall be considered Confidential Infonnation and shall be governed by the terms
of this Order. These papers shall be filed under seal and shall remain sealed with
the District Clerk’s Office so long as the materials retain their status as
Confidential Jnformatiott
17. Pursuant to the agreement of the parties no disclosure, production, or exchange ot’
information in this case shall constitute a waiver of any applicable attorney-client
privilege or of any applicable work product protection in this or any other federal
or state proceediu8. This Protective Order applies to any information disclosed,
exchanged, produced, or discussed — whether intentionally or inadvertently —
among the parties, their counsel and/or any agents (such as vendors and experts)
in the course of this litigation. Upon learning of a production of privileged or
work product protected information, the producing party shall within ten (10)
days give all counsel of record notice of the production pursuant to Texas Rule of
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Civil Procedure 193.3(d). The receiving party must promptly return, sequester or
destroy the produced information and all copies and destroy any notes that
reproduce, copy, or otherwise disclose the substance of the privileged or work
product protected nfbmwion.
18. Further, production pursuant to this Protective Order shall not be deemed a waiver
of:
a. Any party’s right to object to any discovery requests on any ground.
b. Any party’s right to seek an order coiupellrng discovery with respect to
any discovery request.
c Any party’s use and review of its own Confidential Information in its sole
and complete discretion.
d. The status of any material as a trade secret.
19. Any Qualified Person who obtains information pursuant to this Order consents to
submitting to the jurisdiction of this Court for enforcement of this Order.
20. Within one (1) year after the final resolution of this litigation, the plaintifIs) and
The Mostyn Law Finn shall return or destroy Confidential Infbrmation they
received during this litigation. As to those materials that contain or reflect
Confidential Information, but that constitute or reflect the pIaintis) counsel’s
own work product, counsel for the plaintiff(s) are entitled to retain such work
product in their files in accordance with the provisions of this Protective Order, so
long as the work product is clearly marked to reflect that it contaIns information
subject to this Protective Order. Plaintiffs counsel is entitled to retain pleadings,
affidavits, motions, briefs, other papers filed with the Court, deposition
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transcripts, and the trial record even if such materials contain Confidential
Infonnation, so long as such materials are clearly marked to reflect that they
contain information subject to this Protective Order and are maintained in
accordance with the provisions of this Protective Order. Plaintiffs counsel shall
certify in writing compliance with the provision of this paragraph after one (1)
year after the final resolution of this litigation.
This Order shall remain iii effect unless or until amended, altered, modifled, or vacated
by the Court or by the written agreement of all parties to this action filed with the Court,
pursuant to the Texas Rules of Civil Procedure.
ff13 SOORDERBD this / ayof__________,2015.
614
APPROVED AS TO FORM ONLY;
3. Steve Mostyn
State Bar No. 00798389
Aaxnon
Sofia A.
Stare BaffrJo. 00784811
Andrew P. Taylor Dan K. Worthington
State Bar No. 24070723 State Bar No. 00785282
THE MOSTYN LAW FIRM Elizabeth S. Cantu
3810 W. Alabama Street State Bar No. 24013455
Houston, Texas 77027 Charles W. Downing
(713) 861-6616—Phone State Bar No. 24069631
(713) 861-8084—Fax ATLAS, HALL & RODRIGUEZ, LLP
ATTORNEYS FOR PLAINTIFF 818 Pecan Blvd.
McAllen, Texas 78501
(956) 682-5501 Phone
—
(956) 686-6109 Fax
—
ATTORNEYS FOR PEEENDANTS
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Fied
7I2.2O15 4:39:03 M
Esther DegoIIwJo
Dist,ict C’erk
Webb Disbict
.Jeanie Aguar
2O14CVFOO1 162D1
CAUSE NO. 2014-CVE-001162-DI
RAUL RODRIGUEZ AND NOEMI § IN TILE DISTRICT COURT OF
RODRIGUEZ, §
§
Plaintiff, §
§ WEBB COUNTY, TEXAS
§
STATE FARM LLOYDS AND YELIPE §
FARIAS, §
§
Defendnts. § 49 JUDICIAL DZSTRICT
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
in order to be provided access to informadon
designated as Confidential Infonuation under the Protective Order entered in Cause No. 2014-
CVF-0Ol 162-DI represents and agrees as follows;
1. I have been provided with a copy of the Protective Order entered by the Couit in
the above matter. I have reviewed said copy and I am ftmiliar with its terms.
2. With regard to any and all Confidential Information to which I am given access in
connection with the above matter, I agree to be bound by the provisions of the
Protective Order.
3. I consent to the exercise ofjurisdiction over inc by the Court with respect to the
Protective Order.
4. 1 agree that copies of this undertaking will be sent to counsel of record for all
parties in the above litigation.
DATED: SIGNATURE
EXHIBIT A
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