in Re Master Flo Valve Inc. and Master Flo Valve (USA), Inc.

Opinion

ACCEPTED 14-15-00956-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 12/17/2015 5:18:17 PM CHRISTOPHER PRINE CLERK

NO. 14-15-00956-CV

FILED IN 14th COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS FOR THE FOURTEENTH COURT OF APPEALS OF TEXAS 12/17/2015 5:18:17 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk

IN RE MASTER FLO VALVE INC. AND MASTER FLO VALVE (USA), INC.

Relators.

On Petition for Writ of Mandamus To the 80th District Court, Harris County, Texas Alpha Solutions S.A. de C.V., et al. v. Master Flo Valve Inc., et al., No. 2014-00695 The Honorable Larry Weiman presiding

RELATORS’ OPPOSITION TO MOTION FOR LEAVE TO FILE SUR- REPLY OF REAL PARTIES IN INTEREST

Gabriela Vega Michael B. Bennett State Bar No. 24084014 State Bar No. 00796196 BAKER BOTTS L.L.P. Aaron M. Streett 2001 Ross Avenue, Suite 600 State Bar No. 24037561 Dallas, Texas 75201 Dustin Appel Telephone: (214) 953-6642 State Bar No. 24058819 Facsimile: (214) 661-4642 J. Mark Little State Bar No. 24078869 BAKER BOTTS L.L.P. 910 Louisiana Street Houston, Texas 77002 Telephone: (713) 229-1209 Facsimile: (713) 229-2709 ATTORNEYS FOR RELATORS ARGUMENT

Master Flo opposes Alpha’s Motion for Leave to File Sur-reply both because

it is a departure from the normal appellate procedures and because it improperly

seeks to offer new arguments and authorities that could have been included in its

Response as part of the normal briefing schedule. The Texas Rules of Appellate

Procedure contemplate a petition for writ of mandamus, a response, and a reply.

See Tex. R. App. P. 52. There is no mention of a sur-reply. Yet Alpha seeks to

file a sur-reply and depart from this briefing structure based on nothing more than

the fact that it wants to have the last word and add new arguments and authorities it

could have easily included in its Response. This tactic is improper, and it does not

justify granting leave to file a sur-reply.

Moreover, the focal point of Alpha’s sur-reply is irrelevant to these

proceedings. Alpha seeks to argue that a 2012 joint motion filed in a patent case in

the United States District Court for Eastern District of Texas, in which Baker Botts

represented one of the parties, supplies precedent for the trial court’s discovery

order in this case and somehow undermines Master Flo’s arguments. But the

motion Alpha cites was premised on a model order applicable only in the Eastern

District of Texas—and only in patent cases at that. See Appendix of Sur-reply at

10 (explaining that “the Court directed the parties to review the Court’s Model

Order [Regarding E-Discovery in Patent Cases]”); id. at 25-29 (the “[Model] Order

1 Regarding E-Discovery in Patent Cases”). Thus, this new alleged precedent Alpha

is so desperate to get before the Court relates exclusively to unique e-discovery

procedures applied in one federal district, for patent cases only. Thus, in addition

to being something Alpha could have raised in its Response, the motion is

inapposite to the question of appropriate court-ordered discovery in Texas state

courts in ordinary civil litigation. No authority—much less a model patent order

from the Eastern District of Texas and the other federal district court cases cited by

Alpha—support a Texas state court’s authority to order a broad-ranging keyword

search across “across all email systems and electronic files” under terms and

conditions to be set by the court, without first finding discovery abuse or

malfeasance.

Alpha’s Motion for Leave to File Sur-reply is nothing more than an attempt

to get the last word in contravention of the normal briefing practice and to

introduce additional arguments and authorities that, if compelling, could and

should have been included in Alpha’s Response. Accordingly, this Court should

deny leave to file a sur-reply.

PRAYER

For these reasons, Relators pray that the Court deny Alpha’s Motion for

Leave to File Sur-reply. Relators also pray for such further relief to which they

may be justly entitled.

2 Respectfully submitted,

BAKER BOTTS L.L.P.

By: /s/ Aaron M. Streett

Michael B. Bennett State Bar No. 00796196 Aaron M. Streett State Bar No. 24037561 Dustin Appel State Bar No. 24058819 J. Mark Little State Bar No. 24078869 BAKER BOTTS L.L.P. 910 Louisiana Street Houston, Texas 77002 Telephone: (713) 229-1209 Facsimile: (713) 229-2709

Gabriela Vega State Bar No. 24084014 BAKER BOTTS L.L.P. 2001 Ross Avenue, Suite 600 Dallas, Texas 75201 Telephone: (214) 953-6642 Facsimile: (214) 661-4642

COUNSEL FOR RELATORS

3 CERTIFICATE OF SERVICE I certify that a true and correct copy of this Opposition to Motion for Leave to File Sur-reply of Real Parties in Interest was served on all parties by the means listed below on the 17th day of December 2015, addressed as follows:

John D. Sheppard State Bar No. 24051331 Nicholas A. Morrow State Bar No. 24051088 3701 Kirby Drive, Suite 840 Houston, Texas 77098 Telephone: (713) 489-1206 Facsimile: (713) 893-8370 (by EFile)

Counsel for Real Parties in Interest

The Honorable Larry Weiman Harris County Civil Courthouse 201 Caroline, 9th Floor Houston, Texas 77002 (713) 368-6100 (by Hand Delivery)

Respondent

/s/ Aaron M. Streett Aaron M. Streett