in Re: Ty Beard, Jim E. Bullock, Brian Casper, Craig Daugherty and Don Harris

Opinion

ACCEPTED 12-15-00005CV TWELFTH COURT OF APPEALS TYLER, TEXAS 1/14/2015 10:02:33 AM CATHY LUSK CLERK

EMERGENCY RELIEF REQUESTED ORAL ARGUMENT REQUESTED FILED IN 12th COURT OF APPEALS NO. ____________ TYLER, TEXAS 1/14/2015 10:02:33 AM CATHY S. LUSK Clerk In the Court of Appeals Twelfth Judicial District Tyler, Texas

IN RE COUNSEL FOR GOUGHNOUR, Relators

PETITION FOR WRIT OF MANDAMUS From the 241st District Court of Smith County, Texas

Jim E. Bullock Ty Beard Texas Bar No. 00795271 State Bar No. 00796181 Brian Casper Donald Harris State Bar No. 24075563 State Bar No. 00796709 CANTEY HANGER, LLP Craig Daugherty 1999 Bryan St. State Bar No. 05404300 Suite 3300 BEARD & HARRIS, P.C. Dallas, Texas 75201 100 Independence Place, Telephone: (214) 978-4100 Suite 101 Facsimile: (214) 978-4150 Tyler, Texas 75703 jbullock@canteyhanger.com Telephone: (903) 509-4900 bcasper@canteyhanger.com Facsimile: (903) 509-4908 ty@beardandharris.com don@beardandharris.com craig@beardandharris.com

Attorneys for Relators

Identity of Parties & Counsel

Relators

Relators in this matter are Ty Beard, Jim E. Bullock, Brian Casper, Craig

Daugherty, and Don Harris, attorneys who represent Deborah Patterson (Howard)

Goughnour in the matter styled In re the Deborah Patterson Howard Trust, Cause

No. 11-2216-C, pending before the 241st District Court of Smith County, Texas. The

attorneys representing Relators are:

Jim E. Bullock Ty Beard Brian Casper Donald Harris CANTEY HANGER, LLP Craig Daugherty 1999 Bryan St. BEARD & HARRIS, P.C. Suite 3300 100 Independence Place, Dallas, Texas 75201 Suite 101 Telephone: (214) 978-4100 Tyler, Texas 75703 Facsimile: (214) 978-4150 Telephone: (903) 509-4900 jbullock@canteyhanger.com Facsimile: (903) 509-4908 bcasper@canteyhanger.com ty@beardandharris.com don@beardandharris.com craig@beardandharris.com

Respondent

Respondent in this matter is the Hon. Jack Skeen, Jr., presiding judge of the

241st District Court of Smith County, Texas.

PETITION FOR WRIT OF MANDAMUS i

Real Party in Interest

The real party in interest in this matter is Robert H. Patterson, Jr., trustee of

the Deborah Patterson Howard Trust. The attorneys representing the real party in

interest are:

Mary C. Burdette Richard H. Lottman Brandy Baxter-Thompson Gregory T. Kimmel CALLOWAY, NORRIS, BURDETTE ALLENLOTTMANNKIMMEL, P.C. & WEBER, PLLC 3805 Old Bullard Road 3811 Turtle Creek Blvd., Tyler, Texas 75701 Suite 400 Telephone: (903) 534-0006 Dallas, Texas 75219 Facsimile: (903) 534-3757 Telephone: (214) 521-1520 Richard@allenlottmann.com Facsimile: (214) 521-2201 Greg@allenlottmann.com MBurdette@cnbwlaw.com BBThompson@cnbwlaw.com

PETITION FOR WRIT OF MANDAMUS ii

Table of Contents

Identity of Parties & Counsel ..................................................................................... i Index of Authorities ................................................................................................. iv Statement of the Case............................................................................................... vi Statement of the Jurisdiction .................................................................................... vi Issues Presented ...................................................................................................... vii Statement of Facts ......................................................................................................1 Argument & Authorities ............................................................................................5 I. Respondent Abused His Discretion ....................................................................5 A. There Was No Discovery Abuse (Issue I) .....................................................6 B. Rule 215.3 Does Not Support the Sanctions Order (Issue II) ......................13 C. “Joint and Several” Sanction was an Abuse of Discretion (Issue III) .........14 D. Award of Attorneys’ Fees was an Abuse of Discretion (Issue IV) .............16 E. Respondent Failed to Consider Lesser Sanction (Issue V) ..........................17 F. Respondent Ignored Applicable Rules of Procedure (Issue VI) ..................20 II. Relators Have No Adequate Appellate Remedy (Issues VII-VIII) .................22 A. The Sanctions Order Exceeds Respondent’s Jurisdiction...........................22 B. Appeal is an Illusory Remedy for Relators .................................................23 C. Mandamus is Needed to Give Direction to the Law ...................................25 Conclusion ...............................................................................................................26 Prayer .......................................................................................................................27 Certification .............................................................................................................29 Certificate of Compliance ........................................................................................29 Certificate of Service ...............................................................................................30 Appendix ..................................................................................................................31

PETITION FOR WRIT OF MANDAMUS iii

Index of Authorities

Cases American Flood Research, Inc. v. Jones, 192 S.W.3d 581 (Tex. 2006) .... 13, 14, 18 Approximately $14,980.00 v. State, 261 S.W.3d 182 (Tex. App.—Houston [14th Dist.] 2008, no pet.) ..............................................................................................20 Centennial Ins. Co. v. Commercial Union Ins. Companies, 803 S.W.2d 479 (Tex.

App.—Houston [14th Dist.] 1991, no writ) .................................................. 20, 21 Chapa v. Garcia, 848 S.W.2d 667 (Tex. 1992) ...................................... 6, 12, 14, 15 Dunn v. Street, 938 S.W.2d 33 (Tex. 1997).............................................................22 Electronic Data Systems Corp. v. Tyson, 862 S.W.2d 728 (Tex. App.—Dallas 1993, no writ) .......................................................................................................12 Great W. Drilling, Ltd. v. Alexander, 305 S.W.3d 688 (Tex. App.—Eastland 2009, no pet.) ..................................................................................................................23 Grunauer v. Difilippo, 07-03-0149-CV, 2004 WL 111462 (Tex. App.—Amarillo Jan. 22, 2004, no pet.).............................................................................................7 Hough v. Johnson, 456 S.W.2d 775 (Tex. Civ. App.—Austin 1970, no writ) .........7 Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996) .......................... 5, 12, 14, 15, 20, 23 Hunt v. Heaton, 643 S.W.2d 677 (Tex. 1982) .................................................. 20, 21 In re Arras, 24 S.W.3d 862 (Tex. App.—El Paso 2000, no pet.) ............................24 In re CompleteRx, Ltd., 366 S.W.3d 318 (Tex. App.—Tyler 2012, no pet.) .. 20, 21, 27 In re Essex Insurance Co., 13-1006, 2014 WL 6612590 (Tex. Nov. 21, 2014) .....26 In re Ford Motor Co., 12-0957, 2014 WL 2994622 (Tex. July 3, 2014) 6, 17, 20, 26 In re Ford Motor Co., 988 S.W.2d 714 (Tex. 1998) ...............................................13 In re GlobalSanteFe Corp., 275 S.W.3d 477 (Tex. 2008) ......................................27 In re John G. & Marie Stella Kenedy Memorial Foundation, 315 S.W.3d 519 (Tex.

2010) .....................................................................................................................23 In re Long, 984 S.W.2d 623 (Tex. 1999) .................................................................24 In re Masonite Corp., 997 S.W.2d 194 (Tex. 1999) ................................................26 In re Prudential Insurance Company of America, 148 S.W.3d 124 (Tex. 2004) ..22, 25 In re Rusk Energy, Ltd., 12-07-00245-CV, 2008 WL 257019 (Tex. App.—Tyler Jan. 31, 2008, no pet.).................................................................................... 22, 24 In re Siemens Corp., 153 S.W.3d 694 (Tex. App.—Dallas 2005, no pet.) ...... 26, 27 In re Texas Natural Resource Conservation Commission, 85 S.W.3d 201 (Tex.

2002) .....................................................................................................................24 In re Van Waters & Rogers, Inc., 145 S.W.3d 204 (Tex. 2004) .............................25

PETITION FOR WRIT OF MANDAMUS iv

Jones v. American Flood Research, Inc., 218 S.W.3d 929 (Tex. App.—Dallas 2007, no pet.) ................................................................................................. 13, 19 Martin v. Khoury, 843 S.W.2d 163 (Tex. App.—Texarkana 1992, no writ) ..........24 Maynard v. Caballero, 752 S.W.2d 719 (Tex. App.—El Paso 1988, writ denied) 23 Old Republic Ins. Co. v. Edwards, 01-10-00150-CV, 2011 WL 2623994 (Tex.

App.—Houston [1st Dist.] June 30, 2011, no pet.) ................................................7 Renfroe v. Jones & Associates, 947 S.W.2d 285 (Tex. App.—Fort Worth 1997, writ denied) ...........................................................................................................23 Scheffer v. Chron, 560 S.W.2d 419 (Tex. Civ. App.—Beaumont 1977, writ ref’d n.r.e.) .............................................................................................................. 20, 21 TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991) ... 6, 18, 19 Union Carbide Corp. v. Martin, 349 S.W.3d 137 (Tex. App.—Dallas 2011, no pet.) ................................................................................................................ 19, 20 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ..................................... 5, 14, 15, 20 Way v. Coca Cola Bottling Co., 119 Tex. 419, 29 S.W.2d 1067 (Comm’n App.

1930) .....................................................................................................................23 Statutes TEX. CIV. PRAC. & REM. CODE §41.008(c) ..............................................................14 TEX. GOV’T CODE §22.201....................................................................................... vi TEX. GOV’T CODE §22.221....................................................................................... vi Rules LOCAL SMITH COUNTY RULES OF CIVIL TRIAL, RULE 2.1 ........................................21 LOCAL SMITH COUNTY RULES OF CIVIL TRIAL, RULE 2.4 ........................................21 TEX. R. APP. P. 44.1(a) .............................................................................................24 TEX. R. CIV. P. 176.2 ................................................................................................10 TEX. R. CIV. P. 176.5 ..................................................................................................7 TEX. R. CIV. P. 191.2 ......................................................................................... 20, 21 TEX. R. CIV. P. 205.1 ..................................................................................................8 TEX. R. CIV. P. 215.2 ................................................................................................13 TEX. R. CIV. P. 215.3 ......................................................................................... 13, 23 TEX. R. EVID. 902 .......................................................................................................9

PETITION FOR WRIT OF MANDAMUS v

Statement of the Case

Relators represent Deborah Patterson (Howard) Goughnour, remainder

beneficiary of the Deborah Patterson Howard Trust, in the matter styled In re the

Deborah Patterson Howard Trust, Cause No. 11-2216-C, pending before the 241st

District Court of Smith County, Texas, a suit for damages involving claims that the

real party in interest, Robert H. Patterson, Jr., breached his fiduciary duty as trustee

of the Deborah Patterson Howard Trust. On April 22, 2014, Respondent, the Hon.

Jack Skeen, Jr., presiding judge of the 241st District Court, sanctioned Relators under

Texas Rule of Civil Procedure 215.3; on December 5, 2014, Respondent ordered

Relators to appear before him on January 21, 2015 to show cause why they should

not be held in contempt for not complying with the April 22, 2014 sanctions order.

Relators seek relief from these orders.

Statement of the Jurisdiction

The Court of Appeals has jurisdiction over this mandamus proceeding under

Sections 22.201(m) and 22.221(b)(1) of the Texas Government Code.

PETITION FOR WRIT OF MANDAMUS vi

Issues Presented

I. Was it an abuse of discretion for Respondent to sanction Relators for conduct that is not a violation of any discovery rule or order?

II. Since Texas Rule of Civil Procedure 215.3 only permits sanctions against “parties,” was it an abuse of discretion for Respondent to sanction the attorneys (who are not “parties”) under this rule?

III. Without a relationship between the sanctioned conduct and four of the five Relators, was it an abuse of discretion for Respondent to sanction all five Relators jointly and severally?

IV. Did Respondent abuse his discretion by awarding attorney’s fees without the evidence required by the Texas Supreme Court in Long v. Griffin and El Apple I, Ltd. v. Olivas?

V. Did Respondent abuse his discretion by failing to consider less stringent sanctions as required by the Texas Supreme Court in TransAmerican Natural Gas Corp. v. Powell and American Flood Research, Inc. v. Jones?

VI. Did Respondent abuse his discretion by disregarding Texas Rule of Civil Procedure 191.2 and the Smith County Local Rules?

VII. Do Relators have an adequate appellate remedy since they are not “parties” to this litigation and have no independent right of appeal, and since Respondent (despite continuing the case without any new trial setting) deliberately ordered the sanctions paid prior to final judgment and has since issued a “show cause” order?

VIII. Does Respondent’s abuse of discretion constitute an exceptional case warranting mandamus review and intervention?

PETITION FOR WRIT OF MANDAMUS vii

Statement of Facts

In July 2011, real party in interest Robert H. Patterson, Jr., (the “Trustee”)

initiated the matter styled In re the Deborah Patterson Howard Trust, Cause No. 11-

2216-C pending before the 241st District Court of Smith County, Texas (the

“underlying action”), filed his resignation as trustee of the Deborah Patterson

Howard Trust (the “Trust”), and requested that the Court approve his final

accounting and discharge him from all liability. [R. TAB 1]. Deborah Patterson

(Howard) Goughnour, the Trust’s remainder beneficiary, (“Deborah”) intervened

and brought counterclaims against the Trustee for breach of his fiduciary duty arising

out of his misusing the Trust’s money to fund a speculative real estate venture,

known as Bighorn Ventures III, Ltd., in which the Trustee had a personal, financial

stake (“Bighorn”). [R. TAB 2].

On May 29, 2013, Craig Daugherty (“Mr. Daugherty”), one of the attorneys

representing Deborah, sent an email to Janie Malone and Jerry Hill at Central Title

Company seeking copies of certain documents (the “Requested Documents”). [R.

TAB 5, EX. B, at 4]. Attached to this email was a document entitled “Subpoena to

Appear and Produce Documents” (the “Purported Subpoena”) which requested the

title company’s custodian of records “to produce and permit inspection and copying”

of the Requested Documents in the courtroom of the 401st District Court of Smith

County, Texas on June 25, 2013 or, alternatively, to produce the Requested

PETITION FOR WRIT OF MANDAMUS PAGE 1

Documents along with a business records affidavit by May 28, 2013. [R. TAB 5, EX.

A, EX. B at 4-11]. The Requested Documents concerned “real estate transactions for

which Central Title Company served as the closing agent” and which involved the

Trustee, entities owned by the Trustee, or entities which had conducted business

with the Trust. [R. TAB 5 at 30-31, EX. A at 3]. Mr. Daugherty’s email requested that

Mr. Hill or Ms. Malone call him to discuss. [R. TAB 5, EX. B at 4].

Mr. Hill called Mr. Daugherty and arrangements were made for Central Title

Company to voluntarily produce certain documents. [R. TAB 5 at 32-33; TAB 7 at 30-

35]. Indeed, no one from Central Title Company appeared in the courtroom of the

401st District Court of Smith County, Texas on June 25, 2013 or called Mr.

Daugherty to question whether such appearance was required. [R. TAB 7 at 37-39].

Instead, around the beginning of July 2013, Central Title Company began

voluntarily providing the Requested Documents as Mr. Hill and Mr. Daugherty

agreed. [R. TAB 5 at 32-33, EX. B at 12-14; TAB 7 at 31-32].

Subsequently, on July 8, 2013, without conferring with Deborah’s counsel,

the Trustee’s lawyers moved to quash the Purported Subpoena and for sanctions. [R.

TAB 3; TAB 5 at 35, 57; TAB 6 at 28, 31]. On July 10, 2013, Mr. Daugherty wrote the

Trustee’s counsel that he would retract the Purported Subpoena, serve Central Title

Company with an actual subpoena for the Requested Documents and agreed that the

Trustee’s motion to quash would apply to this actual subpoena. [R. TAB 5, EX. C].

PETITION FOR WRIT OF MANDAMUS PAGE 2

Additionally, he provided the Trustee’s counsel with access to all of the documents

which Central Title Company had thus far produced. [Id.]. Nonetheless, the Trustee

did not withdraw his motion for sanctions.

On September 12, 2013, September 19, 2013, and November 13, 2013, the

Respondent conducted a hearing on the Trustee’s motion. [R. TABS 5-7]. The

Trustee presented no evidence that he had been harmed or prejudiced in any way by

the Purported Subpoena beyond Relators simply having received some of the

Requested Documents from Central Title Company. [R. TAB 5 at 21, 37, 42-43, 47;

TAB 7 at 10]. The Trustee did not offer into evidence any invoices for his attorneys’

fees or other written statements showing what services were performed, which

attorney performed them and at what hourly rate, when they were performed or how

much time the work required.1

Respondent did not grant (or even rule on) the Trustee’s motion to quash but

nevertheless ruled that:

“a procedure was used that in the Court’s view—and certainly, y’all have a difference of opinion about—difference of opinion, but in the Court’s view, a procedure was used that didn’t meet the requirements of the statute. And I’ll leave it at that…

…the Court does find the rule was violated. The Court does find sanctions are in order. Attorney’s fees are ordered for what the Court

1 Respondent at one point stated “I’ve got the attorney fee schedule I asked for.” [R. TAB 6 at 114]. And the Trustee’s counsel at one point stated “we have submitted a statement for fees….” [R. TAB 7 at 70]. But no invoices or other documents supporting the testimony of the Trustee’s counsel were offered or admitted into evidence.

PETITION FOR WRIT OF MANDAMUS PAGE 3

allowed for sanctions for. It’s up to the Court to try to reach what, in the Court’s view, is reasonable and necessary…

…I’m going to award attorney’s fees as a sanction for a violation of the rule for a total of 35 hours at $400 an hour, which is a total of $14,000….”

[R. TAB 7 at 82, 90-91]. On April 22, 2014, Respondent signed the Trustee’s

proposed order (the “Sanctions Order”). [R. TAB 9].

The Sanctions Order finds that Relators “prepared, signed and sent a false trial

Subpoena to Central Title Company dated May 28, 2013,” that Relators “sent the

False Trial Subpoena in order to avoid compliance with Rules 176.2, 176.3(b),

199.2(b)(5), 200, and 205, which constitutes an abuse of the discovery process that

is sanctionable under Rule 215.3,” and that “an appropriate sanction” is an award of

attorney’s fees calculated at 35 hours at the rate of $400 per hour “which is

reasonable and necessary”; it then orders Relators, jointly and severally, to pay

$14,000 to the Trust no later than July 21, 2014. [Id.].

Relators filed their Motion to Modify Sanction Order on June 20, 2014

requesting that Respondent modify the Sanctions Order to defer payment until after

rendition of a final judgment in the underlying action. [R. TAB 10]. Relators’ Motion

to Modify Sanction Order was submitted for consideration on July 7, 2014;2 despite

2 “Motions shall state a date of submission at which time the Motion will be considered without a hearing, unless both a request for oral argument and a response are filed. The movant shall select the date of submission which shall be no sooner than the Monday following fifteen (15) days from

PETITION FOR WRIT OF MANDAMUS PAGE 4 passage of the submission date, Respondent has not ruled either way on Relators’

request.

The trial of this cause has been continued five times, and there is now no trial

setting at all. [R. TAB 7 at 103-09; TAB 12].

On September 17, 2014, the Trustee moved for an order holding Relators in

contempt for failing to pay the attorneys’ fees awarded under the Sanctions Order.

[R. TAB 13]. On December 5, 2014, Respondent signed a show cause order requiring

Relators to appear in the courtroom of the 241st District Court of Smith County,

Texas on January 21, 2015 at 9:00 a.m. “to then and there show cause why [Relators]

have not complied with the [Sanctions Order].” [R. TAB 14].

Argument & Authorities

As the parties seeking mandamus relief, Relators must show that Respondent

abused his discretion and that they have no adequate remedy by appeal. Walker v.

Packer, 827 S.W.2d 833, 840 (Tex. 1992).

I. Respondent Abused His Discretion

A trial court has no discretion in determining what the law is or applying the

law to the facts. Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex. 1996). A clear

failure by the trial court to analyze or apply the law correctly (even if the issue is one

the date of filing, except on leave of Court. The motion will be submitted to the Court for ruling on that date or later.” LOCAL SMITH COUNTY RULES OF CIVIL TRIAL, Rule 2.3.

PETITION FOR WRIT OF MANDAMUS PAGE 5 of first impression) constitutes an abuse of discretion. In re Ford Motor Co., 12-

0957, 2014 WL 2994622 (Tex. July 3, 2014); Chapa v. Garcia, 848 S.W.2d 667,

668 (Tex. 1992).

Imposing sanctions for discovery abuse requires the trial court, first, to find a

direct relationship exists between offensive conduct and the sanction imposed and,

second, to ensure the punishment fits the crime and is no more severe than necessary

to satisfy its legitimate purposes of securing compliance with discovery rules,

deterring other litigants from similar misconduct, and punishing violators.

TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).

Respondent both misconstrued and misapplied the law in the Sanctions Order

and, therefore, abused his discretion.

A. There Was No Discovery Abuse (Issue I)

The first prong of the TransAmerican test requires the court to determine

whether the underlying conduct actually constitutes an abuse of the discovery

process. In re Ford Motor Co., 988 S.W.2d at 718. There is no discovery abuse here.

The Sanctions Order declares that Relators “sent a false trial Subpoena to

Central Title Company….” [R. TAB 9, ¶¶1-2]. The Trustee argued and Respondent

concluded that the Purported Subpoena abused the discovery process by requiring

someone to appear at a trial or a hearing that didn’t exist. [R. TAB 5 at 9, 11]. But

the Purported Subpoena makes no mention whatsoever of a trial or even a hearing;

PETITION FOR WRIT OF MANDAMUS PAGE 6 indeed, its very title is “subpoena to appear and produce documents.” [R. TAB 5, EX.

A] (emphasis added).

In any event, the Purported Subpoena did not satisfy the requirements to be a

subpoena under Rule 176;3 it was not served by a sheriff or constable or non-party

over 18 years of age, was not accompanied with a witness fee, and no return was

filed with the trial court. [R. TAB 5 at 17; TAB 7 at 30-31]. Because it did not satisfy

the requirements of Rule 176, it was not an enforceable subpoena. See Hough v.

Johnson, 456 S.W.2d 775, 778 (Tex. Civ. App.—Austin 1970, no writ) (subpoena

effective only if “all prerequisites to the issuance and service of the subpoena have

been complied with”); see also Old Republic Ins. Co. v. Edwards, 01-10-00150-CV,

2011 WL 2623994 (Tex. App.—Houston [1st Dist.] June 30, 2011, no pet.) (no valid

subpoena where no return filed or witness fee tendered) and Grunauer v. Difilippo,

07-03-0149-CV, 2004 WL 111462 (Tex. App.—Amarillo Jan. 22, 2004, no pet.)

(failure to comply with Rule 176.1 made subpoena legally insufficient).

Because it was not an enforceable subpoena, its legal effect was no more than

a “pretty please” and Central Title Company’s compliance wholly voluntary.

3 See TEX. R. CIV. P. 176.5 (subpoena must be served by sheriff or constable of the State of Texas, or any person who is not a party and is 18 years of age or older; must be served with fees required by law; and proof of service must be made by filing either: (1) the witness’s signed written memorandum attached to the subpoena showing that the witness accepted the subpoena; or (2) a statement by the person who made the service stating the date, time, and manner of service, and the name of the person served).

PETITION FOR WRIT OF MANDAMUS PAGE 7

Essentially, the Sanctions Order presupposes that requesting the voluntary sharing

of information somehow violates the Rulesthat simply asking is some

unforgiveable sin. The Texas Rules of Civil Procedure provide processes for and

protections from compelled disclosure and production,4 but they do not prohibit

obtaining information voluntarily shared. To interpret the Rules as Respondent has

would unimaginably increase the cost of litigation since even “friendly” witnesses

could not voluntarily provide evidence.

Fortunately, the Texas Supreme Court has not adopted such a costly restraint

on obtaining voluntarily disclosed information from non-parties.

Rather than violating any Rule, Mr. Daugherty explained that he was seeking

the voluntary production of documents together with a business records affidavit

under Texas Rule of Evidence 902(10):5

4 See TEX. R. CIV. P. 205.1 (“A party may compel discovery from a nonparty—that is, a person who is not a party or subject to a party’s control—only by obtaining a court order under Rules 196.7, 202, or 204, or by serving a subpoena compelling: (a) an oral deposition; (b) a deposition on written questions; (c) a request for production of documents or tangible things, pursuant to Rule 199.2(b)(5) or Rule 200.1(b), served with a notice of deposition on oral examination or written questions; and (d) a request for production of documents and tangible things under this rule”) (emphasis added). 5 “Records or photocopies; admissibility; affidavit; filing. Any record or set of records or photographically reproduced copies of such records, which would be admissible under Rule 803(6) or (7) shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6) or (7), that such records attached to such affidavit were in fact so kept as required by Rule 803(6) or (7), provided further, that such record or records along with such affidavit are filed with the clerk of the court for inclusion with the papers in the cause in which the record or records are sought to be used as evidence at least fourteen days prior to the day upon which trial of said cause commences, and provided the other parties to said cause are given prompt notice by the party filing same of the filing of such record or records

PETITION FOR WRIT OF MANDAMUS PAGE 8

a form of a witness subpoena was drawn up and was sent to the records custodiannot served on the records custodian, not physically served, no witness fee attached, simply sent to the records custodian along with a business records affidavit. And they were given a choice; you can comply with the request for production of documents, voluntarily through the business records affidavit … if we have to we’ll subpoena the records. It’s your choice. The subpoena, it’s important to understand, was never being used to force production of documents. It wasn’t worth the paper it was typed on.

[R. TAB 5 at 28]. Texas Rule of Evidence 902 supports a process for obtaining

business records via voluntary production without the need for subpoena, deposition

or deposition on written questions. [APPX. TAB C; R. TAB 8 at 2-4]. Indeed, the

process embodied in Rule of Evidence 902 does not require prior notice of the

request to the opposing party but only requires that notice of the intent to use the

documents be served on the opposing party at least two weeks prior to trial. TEX. R.

EVID. 902(10)(a).

Rather than violating any Rule, the process utilized by Mr. Daugherty is

permitted by a Rule (i.e., Texas Rule of Evidence 902). In fact, this “pretty please”

request for the voluntary production of documents under a Rule 902 affidavit—

whereby the draft “subpoena” is mailed, faxed, or emailed to a records custodian

and affidavit, which notice shall identify the name and employer, if any, of the person making the affidavit and such records shall be made available to the counsel for other parties to the action or litigation for inspection and copying. The expense for copying shall be borne by the party, parties or persons who desire copies and not by the party or parties who file the records and serve notice of said filing, in compliance with this rule. Notice shall be deemed to have been promptly given if it is served in the manner contemplated by Rule of Civil Procedure 21a fourteen days prior to commencement of trial in said cause.” TEX. R. EVID. 902(10)(a).

PETITION FOR WRIT OF MANDAMUS PAGE 9 with instructions regarding voluntarily providing documents (including, in some

cases, a Rule 902 business records affidavit) but is not served under Rule 176.5(a)

unless the records custodian’s policy or procedure requires it—is a very common

practice in Texas, being sent hundreds of times (or more) each day. [R. TAB 6 at 22-

23; APPX. TAB E].6 Central Title Company did not require service of a subpoena; it

voluntarily produced the Requested Documents.

Moreover, the Purported Subpoena itself contradicts the Sanctions Order’s

finding of an attempt to “avoid compliance with Rules 176.2, 176.3(b), 199.2(b)(5),

200 and 205.” Had the Purported Subpoena been an attempt to compel Central Title

Company’s production of documents, it would absolutely have been permitted by

Rules 176.2 and 176.3(b), because it would have required Central Title Company

“to produce and permit inspection and copying…of documents or tangible things in

their possession, custody or control,” and by Rules 205.1(d) and 205.3(b), which

specifically permit the use of subpoenas to compel production of documents from

non-parties.7 Rules 199.2(b)(5) and Rule 200which govern production of

6 Respondent requested that Mr. Daugherty brief the Rule 902 business records affidavit procedure for him. [R. TAB 6 at 113]. Mr. Daugherty’s detailed brief of Rule 902 business records affidavit practice is set forth in the Record. [R. TAB 8]. 7 See TEX. R. CIV. P. 176.2 (“A subpoena must command the person to whom it is directed to do either or both of the following: (a) attend and give testimony at a deposition, hearing, or trial; (b) produce and permit inspection and copying of designated documents or tangible things in the possession, custody, or control of that person.”) (emphasis added); TEX. R. CIV. P. 176.3(b) (“A subpoena may not be used for discovery to an extent, in a manner, or at a time other than as provided by the rules governing discovery.”). TEX. R. CIV. P. 205.1(d) (“A party may compel

PETITION FOR WRIT OF MANDAMUS PAGE 10 documents at a deposition and the process for deposition on written questions,

respectivelyare not even applicable;8 Mr. Daugherty’s email was neither a

deposition notice nor a request that Central Title Company submit to a deposition on

written questions.

So, the Sanctions Order could not be based on a violation of Rules 199.2 or

200, because they are inapplicable. And, even had the Purported Subpoena been an

enforceable subpoena, the Sanctions Order could not be based on Rules 176.2,

176.3(b), 205.1(d) or 205.3(b), because they authorize the discovery of documents

from third parties via subpoena. In any event, the Sanctions Order cannot be based

on any alleged attempt by Relators to “avoid compliance with Rules 176.2, 176.3(b),

199.2(b)(5), 200, and 205,” because there was no enforceable subpoena or attempt

to serve one—these Rules simply do not apply to the Purported Subpoena.

discovery from a nonparty … by serving a subpoena compelling … a request for production of documents and tangible things under this rule.”); TEX. R. CIV. P. 205.3(b) (“The notice must state: (1) the name of the person from whom production or inspection is sought to be compelled; (2) a reasonable time and place for the production or inspection; and (3) the items to be produced or inspected ….”). 8 “A notice of intent to take an oral deposition must be served on the witness and all parties a reasonable time before the deposition is taken…A notice may include a request that the witness produce at the deposition documents or tangible things within the scope of discovery and within the witness's possession, custody, or control. If the witness is a nonparty, the request must comply with Rule 205 and the designation of materials required to be identified in the subpoena must be attached to, or included in, the notice. The nonparty's response to the request is governed by Rules 176 and 205. When the witness is a party or subject to the control of a party, document requests under this subdivision are governed by Rules 193 and 196.” TEX. R. CIV. P. 199.2(a), (b)(5). “A party may take the testimony of any person or entity by deposition on written questions before any person authorized by law to take depositions on written questions.” Id., 200.1(a), et seq.

PETITION FOR WRIT OF MANDAMUS PAGE 11

Respondent and the Trustee relied on Electronic Data Systems Corp. v. Tyson,

862 S.W.2d 728 (Tex. App.—Dallas 1993) for the proposition that using a subpoena

with a non-existent trial date to acquire documents from a non-party constituted an

abuse of discovery under Rule 215. [R. TAB 5 at 10]. Their reliance is misplaced.

In Electronic Data Systems Corp. v. Tyson, the trial court’s sanctions were

overturned, because the Dallas Court of Appeals found that “the trial court’s actions

do not meet the TransAmerican criteria” and that “the trial court abused its

discretion….” Electronic Data Systems Corp. v. Tyson, 862 S.W.2d 728, 738-39

(Tex. App.—Dallas 1993, no writ).

To summarize, the Sanctions Order is based on Respondent’s determination

that emailing a legally unenforceable request to voluntarily provide documents

violated—and revealed Relators’ attempt to avoid complying with—inapplicable

rules, all based on a prior trial court’s ruling that was reversed by the court of

appeals. “Because the record does not support the trial court’s finding that

[Relators’] conduct was an abuse of the discovery process…the trial court’s sanction

order was not just.” In re Ford Motor Co., 988 S.W.2d at 718. And Respondent’s

erroneous application of the law constitutes an abuse of discretion and a failure of

the first TransAmerican prong. In re Ford Motor Co., 2014 WL 2994622; Huie, 922

S.W.2d at 927-28; Chapa, 848 S.W.2d at 668; Walker, 827 S.W.2d at 840;

TransAmerican Natural Gas Corp., 811 S.W.2d at 917.

PETITION FOR WRIT OF MANDAMUS PAGE 12

B. Rule 215.3 Does Not Support the Sanctions Order (Issue II)

When a sanctions order names a specific rule or tracks a rule’s language, the

appellate court is confined to determining whether sanctions are proper under that

rule alone. American Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583-84 (Tex.

2006). Here, the Sanctions Order purports to punish Relators for “an abuse of the

discovery process that is sanctionable under Rule 215.3.” [R. TAB 9, ¶2].

However, Rule 215.3 applies only where “the court finds a party is abusing

the discovery process.” TEX. R. CIV. P. 215.3 (emphasis added). Rule 215.3 does

not provide a basis for sanctioning counsel. Compare TEX. R. CIV. P. 215.3 (trial

court may sanction “a party” for abusing the discovery process) with TEX. R. CIV. P.

215.2(b)(2), (8) (trial court may sanction a party “or the attorney advising him” for

disobeying a discovery order); see In re Ford Motor Co., 988 S.W.2d 714, 720-21

(Tex. 1998) (“When a trial court finds that a party has abused the discovery process,

Rule 215(3) authorizes a trial court to impose an appropriate sanction…under Rule

215, the trial court must predicate its award of attorney’s fees on a party’s abuse of

the discovery process”) (emphasis added); see also Jones v. American Flood

Research, Inc., 218 S.W.3d 929, 930 (Tex. App.—Dallas 2007, no pet.) (concluding

on original submission that the trial court abused its discretion by sanctioning

counsel under Rule 215.3 because it did not find that a party abused the discovery

process) (referencing Jones v. American Flood Research, Inc., 153 S.W.3d 718, 724

PETITION FOR WRIT OF MANDAMUS PAGE 13

(Tex. App.—Dallas 2005) review granted, judgment rev’d, 192 S.W.3d 581 (Tex.

2006)).

Because the Sanctions Order imposed a sanction on counsel under a rule

which does not provide for sanctioning counsel, Respondent failed to apply the law

correctly, which is an abuse of discretion. In re Ford Motor Co., 2014 WL 2994622;

Huie, 922 S.W.2d at 927-28; Chapa, 848 S.W.2d at 668; Walker, 827 S.W.2d at

840.9

C. “Joint and Several” Sanction was an Abuse of Discretion (Issue III)

The first TransAmerican prong also requires the trial court to ensure that any

sanction be imposed only on the person engaging in the offending conduct.

American Flood Research, Inc., 192 S.W.3d at 583. The Sanctions Order declared

that “Craig M. Daugherty, Ty Beard, Donald Harris, Jim E. Bullock and Brian

Casper…prepared, signed and sent a false trial Subpoena to Central Title

9 In his motion for sanctions, the Trustee also complained that Relators sought his removal as trustee “without citing, or having, any legal authority for such relief” and made “false and groundless accusations…[of] criminal charges.” [R. TAB 3, ¶¶17-18]. On the contrary, Respondent correctly conducted a hearing under Section 113.082 of the Texas Trust Code (cited by Relators) regarding the Trustee’s removal via interlocutory order. [R. TAB 15 at 32-48]. And the “false and groundless accusations…[of] criminal charges” are specifically authorized as allegations to avoid the limitation on punitive damages under Section 41.008 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE §41.008(c) (“This section does not apply to a cause of action against a defendant from whom a plaintiff seeks recovery of exemplary damages based on conduct described as a felony in the following sections of the Penal Code if, except for Sections 49.07 and 49.08, the conduct was committed knowingly or intentionally: … (10) Section 32.45 (misapplication of fiduciary property or property of financial institution)”); see also R. TAB 2 at ¶69, TAB 16 at 5-6.

PETITION FOR WRIT OF MANDAMUS PAGE 14

Company…” and attempted to “avoid compliance with Rules 176.2, 176.3(b),

199.2(b)(5), 200, and 205….” [R. TAB 9, ¶¶1-2]. However, there simply is no legally

sufficient (or even credible) evidence in the record that Ty Beard, Donald Harris,

Jim E. Bullock or Brian Casper participated in preparing, signing or sending any

“false trial Subpoena to Central Title Company.” In addition to the fact that the

Purported Subpoena simply was not a “false trial subpoena,” it was not signed by

Ty Beard, Donald Harris, Jim E. Bullock or Brian Casper, and the email to Central

Title Company was not sent by Ty Beard, Donald Harris, Jim E. Bullock or Brian

Casper. [R. TAB 5, EX. B at 4-11].

Absent evidence that they prepared or signed the Purported Subpoena or

emailed it to Central Title Company, the Sanctions Order fails to establish a direct

relationship between the sanction and any improper conduct by Ty Beard, Donald

Harris, Jim E. Bullock and Brian Casper. Sanctioning them “jointly and severally”

therefore, is contrary to the law’s prescription. American Flood Research, Inc., 192

S.W.3d at 583; TransAmerican Natural Gas Corp., 811 S.W.2d at 917. And

Respondent’s misapplying the law constitutes an abuse of discretion. In re Ford

Motor Co., 2014 WL 2994622; Huie, 922 S.W.2d at 927-28; Chapa, 848 S.W.2d at

668; Walker, 827 S.W.2d at 840.

PETITION FOR WRIT OF MANDAMUS PAGE 15

D. Award of Attorneys’ Fees was an Abuse of Discretion (Issue IV)

A party applying for an award of attorney’s fees must provide sufficient

evidence supporting the request before the court can make a meaningful review and

ruling. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761-64 (Tex. 2012). Sufficient

evidence includes, at a minimum, evidence “of the services performed, who

performed them and at what hourly rate, when they were performed, and how much

time the work required”; indeed, without any evidence of the time spent on specific

tasks, the trial court has insufficient information to meaningfully review the fee

request. Long v. Griffin, 11-1021, 2014 WL 1643271 (Tex. Apr. 25, 2014).

Moreover, the request should be supported by “contemporaneous billing records or

other documentation recorded reasonably close to the time when the work is

performed.” El Apple I, Ltd., 370 S.W.3d at 762-63.

The Sanction Order merely states that Relators should reimburse the Trust for

the Trustee’s attorneys “preparing and filing the Motion for Sanctions as well as

preparing for and attending three (3) hearings on the Motion for

Sanctions…calculated at thirty-five (35) hours at the rate of $400 per hour, which is

reasonable and necessary….” [R. TAB 9, ¶¶3-4]. The only evidence presented to the

trial court consisted of general, summary testimony by the Trustee’s counsel opining

that more than $20,000 was “reasonable and necessary.” [R. TAB 5 at 22-23; TAB 7

at 70-71, 89]. No written statements or invoices showing “the services performed,

PETITION FOR WRIT OF MANDAMUS PAGE 16 who performed them and at what hourly rate, when they were performed, and how

much time the work required” were introduced into evidence. This summary

testimony without the detailed evidence indicating the time expended on specific

tasks simply was not legally sufficient evidence to support Respondent’s award of

attorneys’ fees. Long, 2014 WL 1643271.

Moreover, the Sanctions Order was not supported by any (much less legally

sufficient) evidence “of the services performed, who performed them and at what

hourly rate, when they were performed, and how much time the work required” or

“contemporaneous billing records or other documentation recorded reasonably close

to the time when the work is performed”both required by the Texas Supreme

Court for an award of attorney’s fees. Long, 2014 WL 1643271; El Apple I, Ltd.,

370 S.W.3d at 762-64. In fact, despite two of the attorneys stating they billed at a

lower rate, the Sanctions Order awards fees at $400 per hour without any (much less

legally sufficient) evidence of which attorney provided which service. Simply put,

Respondent’s granting any attorney’s fees based on the evidence before him

disregarded the Texas Supreme Court’s mandate and was an abuse of discretion. In

re Ford Motor Co., 2014 WL 2994622; Walker, 827 S.W.2d at 840.

E. Respondent Failed to Consider Lesser Sanction (Issue V)

In rendering sanctions, the trial court must consider the availability of less

stringent sanctions and whether such lesser sanctions would fully promote

PETITION FOR WRIT OF MANDAMUS PAGE 17 compliance. TransAmerican Natural Gas Corp., 811 S.W.2d at 917-18; American

Flood Research, Inc., 192 S.W.3d at 583. Respondent did not.

While the evidence unquestionably shows that Mr. Daugherty immediately

offered an accommodation upon learning of the Trustee’s concerns (arguably

requiring less than one hour of time for the Trustee’s counsel to confer with Mr.

Daugherty), [R. TAB 5 at 51, 54-55, 57-58, 64-65, EX. C; TAB 6 at 29-30; TAB 7 at

90-91], the record shows that Respondent did not consider anything other than

awarding nearly the full amount of attorneys’ fees sought by the Trustee’s counsel.

[R. TAB 5 at 41-44, 62-63, 66-68; TAB 6 at 48; TAB 7 at 76].

Rather, the situation here is much the same as in Union Carbide Corporation

v. Martin, 349 S.W.3d 137 (Tex. App.Dallas 2011):

[I]t is uncontroverted that Martin’s counsel did not contact Union Carbide’s counsel to confer regarding Martin’s opposition to the subpoena duces tecum prior to filing the motions to quash the subpoena duces tecum, for protective order, and for sanctions. The local rules of the Dallas County civil district courts specifically require that prior to filing a motion, “counsel for the potential movant shall personally attempt to contact counsel for the potential respondent” in an effort to resolve disputed matters...Further, the rules of civil procedure require a certificate of conference on all discovery motions or requests for hearings related to discovery…Martin’s June 15, 2009 motions, including his motion for sanctions, did not contain a certificate of conference. Martin’s counsel admitted that he failed to confer with counsel for Union Carbide prior to filing the motions. The record is also uncontroverted that once Union Carbide became aware of Martin’s objections to Union Carbide’s discovery and the motions filed by Martin, Union Carbide repeatedly attempted to reach Martin’s counsel regarding Martin’s objections to the discovery and to advise Martin’s

PETITION FOR WRIT OF MANDAMUS PAGE 18

counsel that Union Carbide was willing to withdraw the subpoena duces tecum.

Union Carbide Corp. v. Martin, 349 S.W.3d 137, 146-48 (Tex. App.—Dallas 2011,

no pet.). In this case, it is uncontroverted that the Trustee’s counsel did not confer

with Relators prior to filing the motion for sanctions, that such conference was

required by the Smith County local rules prior to a hearing on any motion for

sanctions, [APPX. TAB D, §2.1], and that Mr. Daugherty promptly contacted the

Trustee’s counsel and took steps in response to the Trustee’s concerns.

The conclusion here is the same which the Dallas Court of Appeals reached

in Union Carbide Corp., that the time and expense spent by all on the Trustee’s

motion and hearings simply could have been avoided by the Trustee’s counsel

complying with Local Rule 2.1 and Texas Rule of Civil Procedure 191. See id., 349

S.W.3d at 147.

And just as in Union Carbide Corp., neither the record nor the Sanctions

Order contains a statement by the trial court that a lesser sanction would not be

effective or any indication that the trial court even considered lesser sanctions. See

id.; TransAmerican Natural Gas Corp., 811 S.W.2d at 917; Jones, 218 S.W.3d at

932. Indeed, the Trustee presented no legally sufficient evidence (indeed, no

evidence) that the Purported Subpoena caused him any actual, measurable harm that

was not redressed by Mr. Daugherty’s subsequent actions.

PETITION FOR WRIT OF MANDAMUS PAGE 19

Accordingly, the same as in Union Carbide Corp., Respondent disregarded

the requirements of the Texas Supreme Court which constituted an abuse of

discretion. In re Ford Motor Co., 2014 WL 2994622; Huie, 922 S.W.2d at 927-28;

Walker, 827 S.W.2d at 840; Union Carbide Corp., 349 S.W.3d at 148.

F. Respondent Ignored Applicable Rules of Procedure (Issue VI)

A trial court’s clear failure to apply the law correctly constitutes an abuse of

discretion. In re CompleteRx, Ltd., 366 S.W.3d 318, 321 (Tex. App.—Tyler 2012,

no pet.). Accordingly, a trial court may not completely disregard rules governing

trials. Hunt v. Heaton, 643 S.W.2d 677, 678 (Tex. 1982); Centennial Ins. Co. v.

Commercial Union Ins. Companies, 803 S.W.2d 479, 482 (Tex. App.—Houston

[14th Dist.] 1991, no writ); Scheffer v. Chron, 560 S.W.2d 419, 421 (Tex. Civ.

App.—Beaumont 1977, writ ref’d n.r.e.). And when the language in a rule is specific

and its meaning is clear, the rule is entitled to a literal interpretation. Approximately

$14,980.00 v. State, 261 S.W.3d 182, 187 (Tex. App.—Houston [14th Dist.] 2008,

no pet.)

Rule of Civil Procedure 191.2 and Smith County Local Rule 2.1 both required

the Trustee’s counsel to confer with Relators prior to filing the motion to quash and

for sanctions, and Local Rules 2.1 and 2.4 specifically prohibited Respondent’s

consideration of the Trustee’s motion without such conference. See TEX. R. CIV. P.

191.2 (discovery motions and requests for hearings “must contain” a certificate of

PETITION FOR WRIT OF MANDAMUS PAGE 20 conference); LOCAL SMITH COUNTY RULES OF CIVIL TRIAL, RULE 2.1, 2.4 (court will

not consider a motion for sanctions absent certificate of conference; clerk of the court

is directed not to submit opposed motions without certificate of conference).10

There is no question that the Trustee’s counsel did not confer with Relators

prior to filing the motion for sanctions. There is no question that Respondent

proceeded to hear, consider and rule on the Trustee’s motion despite the lack of such

conference. And there is no question that these actions violated the clear language

of both the Rules of Civil Procedure and the Local Rules of Smith County. In other

words, Respondent completely disregarded both the Texas Rules of Civil Procedure

and the Local Rules of Smith County and, thus, abused his discretion. Hunt, 643

S.W.2d at 678; In re CompleteRx, Ltd., 366 S.W.3d at 321; Centennial Ins. Co., 803

S.W.2d at 482; Scheffer, 560 S.W.2d at 421.

10 “All discovery motions or requests for hearings relating to discovery must contain a certificate by the party filing the motion or request that a reasonable effort has been made to resolve the dispute without the necessity of court intervention and the effort failed.” TEX. R. CIV. P. 191.2. “Before filing a motion, counsel for a moving party must confer or certify that a reasonable effort has been made to confer with the counsel, if known, of all parties affected by the requested relief to determine whether or not the contemplated motion will be opposed. Such a conference is required for all motions except motions to dismiss the entire action, motions to quash, motions for protection, temporary restraining orders, motions for judgment on the pleadings, motions for summary judgment, and motions for new trial…If a motion to compel or for sanctions is sought, the Court will not consider the motion unless the movant certifies that the movant has conferred with or made a reasonable effort to confer with opposing counsel in an effort to resolve the dispute without the necessity of Court intervention and that attempt has failed.” LOCAL SMITH COUNTY RULES OF CIVIL TRIAL, Rule 2.1 (emphasis added). “All opposed motions must include either (i) a certificate which states that a conference was held and indicates the date of the conference and the attorneys who conferred, or (ii) a certificate explaining why it was not possible to hold the conference…The clerk of the court is directed not to submit opposed motions to the judge unless there has been compliance with this rule.” Id., Rule 2.4 (emphasis in the original).

PETITION FOR WRIT OF MANDAMUS PAGE 21

II. Relators Have No Adequate Appellate Remedy (Issues VII-VIII)

Whether an appellate remedy is “adequate” requires a practical analysis rather

than a formulaic approach; the term “adequate” is simply a proxy for carefully

balancing use of mandamus proceedings

to preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.

In re Prudential Insurance Company of America, 148 S.W.3d 124, 136 (Tex. 2004).

A. The Sanctions Order Exceeds Respondent’s Jurisdiction

A trial court has wide latitude in managing proceedings and parties before it,

but it cannot surpass the limits placed on its authority. See Dunn v. Street, 938

S.W.2d 33, 35 (Tex. 1997) (mandamus proper to review show cause order trial court

had no jurisdiction to issue); In re Rusk Energy, Ltd., 12-07-00245-CV, 2008 WL

257019, at *6 (Tex. App.—Tyler Jan. 31, 2008, no pet.), subsequent mandamus

proceeding, 12-07-00245-CV, 2008 WL 375972 (Tex. App.—Tyler Feb. 13, 2008)

(trial court’s orders must be supported by sufficient evidence). Here, Respondent

sanctioned Relators for conduct which was not a violation of any discovery rule or

order, and he did so under a Rule which does not provide for sanctioning of counsel

while disregarding Texas Supreme Court mandates and rules—all beyond

PETITION FOR WRIT OF MANDAMUS PAGE 22

Respondent’s jurisdiction. Huie, 922 S.W.2d at 927-28. And mandamus is proper if

a trial court issues an order that exceeds its jurisdictional authority. In re John G. &

Marie Stella Kenedy Memorial Foundation, 315 S.W.3d 519, 522 (Tex. 2010).

B. Appeal is an Illusory Remedy for Relators

In order for an appeal to supersede the remedy by mandamus, not only must

there be an actual remedy by appeal, but also the appeal provided for must be

competent to afford relief on the very subject-matter of the application for

mandamus, equally convenient, beneficial, and effective as mandamus. Way v. Coca

Cola Bottling Co., 119 Tex. 419, 429-30, 29 S.W.2d 1067, 1071-72 (Comm’n App.

1930). While Rule 215.3 states than a sanctions order “shall be subject to review on

appeal from the final judgment,” TEX. R. CIV. P. 215.3, that, however, is an illusory

remedy for Relators.

First, Relators have no independent right of appeal. Relators are Deborah’s

attorneys and not “parties” to the underlying action. See Great W. Drilling, Ltd. v.

Alexander, 305 S.W.3d 688 (Tex. App.—Eastland 2009, no pet.) (attorney is

representative of party to the litigation); Maynard v. Caballero, 752 S.W.2d 719

(Tex. App.—El Paso 1988, writ denied) (attorney acts on behalf of his client);

Renfroe v. Jones & Associates, 947 S.W.2d 285 (Tex. App.—Fort Worth 1997, writ

denied) (attorney represents client in the litigation). This distinction deprives

Relators of an independent right to appeal the Sanctions Order. In re Arras, 24

PETITION FOR WRIT OF MANDAMUS PAGE 23

S.W.3d 862, 864 (Tex. App.—El Paso 2000, no pet.) (“Since Arras is not a party to

this action, she could not appeal from a judgment in the case.”); Martin v. Khoury,

843 S.W.2d 163, 165 (Tex. App.—Texarkana 1992, no writ) (“They are not parties

to this action and therefore could not appeal from a judgment in the case.”).

Second, there is no trial date. Indeed, Respondent continued the trial of the

underlying cause for the fifth time over a year ago with no resetting. [R. TAB 7 at

103-09; TAB 12]. Yet Respondent deliberately set payment under the Sanctions

Order to occur before final judgment in this case could be rendered. [R. TAB 7 at 92-

94]. So Relators face the loss of their money and damage to their professional

reputations, all for conduct which is not sanctionable, without any certainty they will

be afforded an opportunity to appeal—this is no adequate remedy. See In re Rusk

Energy, 2008 WL 257019 (no adequate remedy by appeal where deprivation of bond

money during trial without any likelihood of recovering damages for its loss of use).

Moreover, it is questionable whether the errors of the Sanctions Order could be

corrected on appeal from a final judgment absent a showing it “probably caused the

rendition of an improper judgment” or “probably prevented the appellant from

properly presenting the case to the court of appeals.” TEX. R. APP. P. 44.1(a); see In

re Rusk Energy, 2008 WL 257019 at *6.11

11 See also In re Texas Natural Resource Conservation Commission, 85 S.W.3d 201 (Tex. 2002) (mandamus available to remedy TRO that violates time limitations); In re Long, 984 S.W.2d 623 (Tex. 1999) (mandamus available to review civil contempt order).

PETITION FOR WRIT OF MANDAMUS PAGE 24

Relators thus have no adequate appellate remedy; they are left with either

mandamus review of the Sanctions Order or no review at all. The Sanctions Order

creates a situation that cannot be corrected on appeal and thus makes an appeal

inadequate. See In re Van Waters & Rogers, Inc., 145 S.W.3d 204, 211 (Tex. 2004)

(an appeal is inadequate when an appellate court cannot cure the error). Hence, the

remedy under Rule 215.3 is purely “abstract or formulaic,” and denying mandamus

review of the Sanctions Order would require the Court of Appeals “to turn a blind

eye to blatant injustice.” In re Prudential, 148 S.W.3d at 136.

C. Mandamus is Needed to Give Direction to the Law

Intervention by the Court of Appeals is necessary “to give needed and helpful

direction to the law that would otherwise prove elusive in appeals from final

judgments.” In re Prudential, 148 S.W.3d at 136.

If the attempt to obtain potentially admissible evidence through voluntary

production of documents and a Rule 902 business records affidavit violates the

Texas Rules of Civil Procedure, then a systemic problem exists—a conflict between

the rules of procedure and the rules of evidence—that should be addressed so Texas

judges and lawyers alike have this “needed and helpful direction.”

If, however, the process utilized by Mr. Daugherty and countless other

practitioners does not offend the Texas Rules of Civil Procedure, then the Sanctions

Order was issued “with such disregard for guiding principles of law”Texas

PETITION FOR WRIT OF MANDAMUS PAGE 25

Supreme Court precedent, the Texas Rules of Civil Procedure, and the Local Rules

of Smith Countythat “the harm…becomes irreparable,” In re Masonite Corp., 997

S.W.2d 194, 197 (Tex. 1999) (internal quotations omitted), making this an

exceptional case warranting mandamus review. See In re Ford Motor Co., 2014 WL

2994622 (“[A] clear failure by the trial court to analyze or apply the law correctly

will constitute an abuse of discretion, and may result in appellate reversal by

extraordinary writ.”).

In short, mandamus review here is essential to preserve Relators’ important

substantive and procedural rights from impairment and loss and to give needed and

helpful direction to Respondent in applying the law. See In re Siemens Corp., 153

S.W.3d 694, 699 (Tex. App.—Dallas 2005, no pet.) (discussing elements of “an

exceptional case”). Mandamus relief is appropriate here “to spare the parties and

the public the time and money spent on fatally flawed proceedings.” In re Essex

Insurance Co., 13-1006, 2014 WL 6612590, at *3 (Tex. Nov. 21, 2014).

Conclusion

The Sanctions Order purports to punish Relators for conduct which does not

constitute an abuse of the discovery process, contradicts the evidence presented to

the trial court, disregards controlling law and applicable rules, and puts Relators in

a position where they have no adequate remedy by appeal. This is a case where

“mandamus relief will safeguard important substantive and procedural rights from

PETITION FOR WRIT OF MANDAMUS PAGE 26 impairment or loss…[and] allow the appellate courts to give needed and helpful

direction to the law that would otherwise prove elusive in appeals from final

judgments,” thereby justifying the review and relief sought by Relators. In re

GlobalSanteFe Corp., 275 S.W.3d 477, 483 (Tex. 2008); In re ComplexRx, Ltd., 366

S.W.3d at 321; In re Siemens Corp., 153 S.W.3d at 699.

Prayer

WHEREFORE, premises considered, Relators respectfully request that the

Court of Appeals issue a writ of mandamus ordering Respondent to vacate the

Sanctions Order; and Relators respectfully request such other and further relief to

which they are justly or equitably entitled.

Respectfully submitted, BEARD & HARRIS, P.C. & CANTEY HANGER, LLP

By: /s/ Jim E. Bullock

Ty Beard State Bar No. 00796181 Donald Harris State Bar No. 00796709 Craig Daugherty State Bar No. 05404300 BEARD & HARRIS, P.C. 100 Independence Place, Suite 101 Tyler, Texas 75703 Telephone: (903) 509-4900 Facsimile: (903) 509-4908 ty@beardandharris.com

PETITION FOR WRIT OF MANDAMUS PAGE 27

don@beardandharris.com craig@beardandharris.com

Jim E. Bullock Texas Bar No. 00795271 Brian Casper State Bar No. 24075563 CANTEY HANGER, LLP 1999 Bryan St. Suite 3300 Dallas, Texas 75201 Telephone: (214) 978-4100 Facsimile: (214) 978-4150 jbullock@canteyhanger.com bcasper@canteyhanger.com

Attorneys for Relators

PETITION FOR WRIT OF MANDAMUS PAGE 28

Certificate of Service

The undersigned certifies that, on this day, a copy of the foregoing and the Appendix attached hereto was served in accordance with Texas Rules of Appellate Procedure 6.3 and 9.5, as follows:

(a) on Respondent by and through Denise Langston, Civil Court Coordinator for the 241st District Court, via e-mail to dlangston@smithcounty .com and via certified mail;

(b) on Robert H. Patterson, Jr., the real party in interest, by and through his counsel of record in the underlying action, Mary C. Burdette (via e-mail to mburdette@cnbwlaw.com) and Brandy Baxter- Thompson (via e-mail to bbthompson@cnbwlaw.com) of CALLOWAY, NORRIS, BURDETTE & WEBER, PLLC, and Richard H. Lottmann (via e- mail to Richard@allenlottmann.com) and Gregory T. Kimmel (via e- mail to Greg@allenlottmann.com) of ALLENLOTTMANNKIMMEL, P.C., as well as via certified mail sent to CALLOWAY, NORRIS, BURDETTE & WEBER, PLLC, Attn: Mary C. Burdette, 3811 Turtle Creek Blvd., Suite 400, Dallas, Texas 75219, and to ALLENLOTTMANNKIMMEL, P.C., Attn: Richard Lottmann, 3805 Old Bullard Road, Tyler, Texas 75701;

and that courtesy copies were served on the other parties who have appeared in the underlying matter as follows:

(c) on Nina Ruth Patterson Harris by and through her counsel of record in the underlying action, Deron R. Dacus (via e-mail to DDacus@dacusfirm.com) of THE DACUS FIRM, P.C.; and

(d) on Dean Bailey by and through his counsel of record in the underlying action, David M. Pruessner (via e-mail to DPruessner@higierallen.com) of HIGIER ALLEN & LAUTIN, P.C.

Dated: January 13, 2015 /s/ Jim E. Bullock Attorney Certifying

PETITION FOR WRIT OF MANDAMUS PAGE 30

Appendix

Tab A: Order Granting Motion for Sanctions

Tab B: Texas Rule of Civil Procedure 215.3

Tab C: Texas Rule of Evidence 902

Tab D: Local Smith County Rules of Civil Trial

Tab E: Affidavit of Pam Miller

PETITION FOR WRIT OF MANDAMUS PAGE 31

Tab A: Order Granting Motion for Sanctions

,_·_

,. ·,

I

IN RE: THE

DEBORAH PATTERSON HOWARD

TRUST

ORDER GRANTING MOTION FOR SANCTIONS

Came on to be heard on Septen1ber 12, September 19, and November 13, 2013, Robert H.

Patterson, Jr.'s Tv1otion to Quash Subpoena and for Sanctions for Discovery Abuse ("Motion for

Sanctions"). The Court, having considered the Motion, the evidence presented and having heard

arguments of counsel, is of the opinion that the Motion for Sanctions should be GRANTED. The

Court finds that:

l. The attorneys for Deborah Patterson Gough nor, specifically Craig M. Daugherty, Ty

Beard, Donald Harris, Jim E. Bullock and Brian Casper ("Deborah's Attorneys")

prepared, sif:,rned and sent a false trial Subpoena to Central Title Company dated May

28, 2013 (the "'False Trial Subpoena"). The False Trial Subpoena con1manded

Central Title Company to appear before this Court on 1une 25, 201 3 at 1 1:00 a.m. to

give testimony and provide evidence in this case. No hearing or trial was ever set for

June 25, 2013, in this matter.

2. Deborah's Attorneys sent the False Trial Subpoena in order to avoid compliance with

Rules I 76.2, 176.3(b), 199.2(b)(5), 200, and 205, which constitutes an abuse of the

discovery process that is sanctionable under Rule 215.3.

3. An-appropriate sanction for Deborah's Attorneys' abuse of the_discovery process is

a monetary sand ion based on the attorney's fees expended by the Debornti Patter~on

ORDER GRANTI!\G :\-lOTION FOR SANCTIONS- Page 1

Howard Trust (the ''Trust") in preparing and filing the Motion for Sanctions as well

as preparing for and attending the three (3) hearings on the Motion for Sanctions as

authorized by Texas Rule of Civil Procedure 215.2(b )(8) (the "Monetary Sanction").

4. The monetmy sanction is calculated at thirty-five (35) hours at the rate of$400 per

hour. which is reasonable and necessaty to sanction Deborah's Attorneys' for their

abuse of the discovety process.

IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that Craig M. Daugherty,

Ty Beard, Donald 1-:Iarris, Jim E. Bullock, and Brian Casper, jointly and severally, are hereby liable

Lo the Deborah Patterson Howard Trust (the "Trust") for the sum of$14,000. in atton1ey's fees and

SIGNED this~ day of w , shall pay this atnount to the ~ust no later than July 21, 2014.

2014.

SIDI~~#-

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ORDER GRANTING !\'lOTION FOR SANCTIONS- Page 2 .... ·- '- t·_

STATE OF TEXAS COUNTY OF SMITH I, Lot<. P t•Jers, District Clerk of Smith County, TexJ:. '" '~~re bf certify tNt the foregoing IS a true .1nu rorrect co., o( !tie original •P.rord. now in'"' ·w1ul custody and possess iO'' J " 1coears of 1ec ,~ 1n Vol. , Page _ _ _ M1 r u~> 11 said court on file-in my offocp

W1tness , ~~n-d)~seal of ot'1ce this

Lois Rogers, District Clerk

Q:""j~

Tab B: T.R.C.P. 215.3 215.3. Abuse of Discovery Process in Seeking, Making, or..., TX R RCP Rule 215.3

Vernon's Texas Rules Annotated Texas Rules of Civil Procedure Part II. Rules of Practice in District and County Courts Section 9. Evidence and Discovery (Refs & Annos)

B. Discovery Rule 215. Abuse of Discovery; Sanctions (Refs & Annos)

TX Rules of Civil Procedure, Rule 215.3

215.3. Abuse of Discovery Process in Seeking, Making, or Resisting Discovery

Currentness

If the court finds a party is abusing the discovery process in seeking, making or resisting discovery or if the court finds that any interrogatory or request for inspection or production is unreasonably frivolous, oppressive, or harassing, or that a response or answer is unreasonably frivolous or made for purposes of delay, then the court in which the action is pending may, after notice and hearing, impose any appropriate sanction authorized by paragraphs (1), (2), (3), (4), (5), and (8) of Rule 215.2(b). Such order of sanction shall be subject to review on appeal from the final judgment.

Credits Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of Aug. 5, 1998, and Nov. 9, 1998, eff. Jan. 1, 1999.

Notes of Decisions (74)

Vernon's Ann. Texas Rules Civ. Proc., Rule 215.3, TX R RCP Rule 215.3 Current with amendments received through August 15, 2014

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Tab C: T.R.E. 902

Rule 902. Self-Authentication, TX R EVID Rule 902

Vernon's Texas Rules Annotated Texas Rules of Evidence (Refs & Annos)

Article IX. Authentication and Identification (Refs & Annos)

TX Rules of Evidence, Rule 902

Rule 902. Self-Authentication

Currentness

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

(1) Domestic Public Documents Under Seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

(2) Domestic Public Documents Not Under Seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

(3) Foreign Public Documents. A document purporting to be executed or attested in an official capacity by a person, authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification. The final certification shall be dispensed with whenever both the United States and the foreign country in which the official record is located are parties to a treaty or convention that abolishes or displaces such requirement, in which case the record and the attestation shall be certified by the means provided in the treaty or convention.

(4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2) or (3) of this rule or complying with any statute or other rule prescribed pursuant to statutory authority.

(5) Official Publications. Books, pamphlets, or other publications purporting to be issued by public authority.

(6) Newspapers and Periodicals. Printed materials purporting to be newspapers or periodicals.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Rule 902. Self-Authentication, TX R EVID Rule 902

(7) Trade Inscriptions and the Like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.

(8) Acknowledged Documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.

(9) Commercial Paper and Related Documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.

(10) Business Records Accompanied by Affidavit. The original or a copy of a record that meets the requirements of Rule 803(6) or (7), if the record is accompanied by an affidavit that complies with subparagraph (B) of this rule and any other requirements of law, and the record and affidavit are served in accordance with subparagraph (A). For good cause shown, the court may order that a business record be treated as presumptively authentic even if the proponent fails to comply with subparagraph (A).

(A) Service Requirement. The proponent of a record must serve the record and the accompanying affidavit on each other party to the case at least 14 days before trial. The record and affidavit may be served by any method permitted by Rule of Civil Procedure 21a.

(B) Form of Affidavit. An affidavit is sufficient if it includes the following language, but this form is not exclusive:

1. I am the custodian of records [or I am an employee or owner] of __________ and am familiar with the manner in which its records are created and maintained by virtue of my duties and responsibilities.

2. Attached are ___ pages of records. These are the original records or exact duplicates of the original records.

3. The records were made at or near the time of each act, event, condition, opinion, or diagnosis set forth. [or It is the regular practice of __________ to make this type of record at or near the time of each act, event, condition, opinion, or diagnosis set forth in the record.]

4. The records were made by, or from information transmitted by, persons with knowledge of the matters set forth. [or It is the regular practice of __________ for this type of record to be made by, or from information transmitted by, persons with knowledge of the matters set forth in them.]

5. The records were kept in the course of regularly conducted business activity. [or It is the regular practice of __________ to keep this type of record in the course of regularly conducted business activity.]

6. It is the regular practice of the business activity to make the records.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Rule 902. Self-Authentication, TX R EVID Rule 902

(11) Presumptions Under Statutes or Other Rules. Any signature, document, or other matter declared by statute or by other rules prescribed pursuant to statutory authority to be presumptively or prima facie genuine or authentic.

Credits Eff. March 1, 1998. Amended by orders of Feb. 12, 2013, and March 26, 2013, eff. March 1, 2013. Amended by orders of Supreme Court and Court of Criminal Appeals April 14, 2014, and August 19, 2014, eff. Sept. 1, 2014.

Editors' Notes

COMMENT--2013

Rule 902(10)(c) is added to provide a form affidavit for proof of medical expenses. The affidavit is intended to comport with Section 41.0105 of the Civil Practice and Remedies Code, which allows evidence of only those medical expenses that have been paid or will be paid, after any required credits or adjustments. See Haygood v. Escabedo, 356 S.W.3d 390 (Tex. 2011). The records attached to the affidavit must also meet the admissibility standard of Haygood, 356 S.W.3d at 399-400 (“[O]nly evidence of recoverable medical expenses is admissible at trial.”).

COMMENT--2014

At the direction of the Legislature, the requirement that records be filed with the court before trial has been removed. See Act of May 17, 2013, 83rd Leg., R.S., ch. 560, § 3, 2013 Tex. Gen. Laws 1509, 1510 (SB 679). The word “affidavit” in this rule includes an unsworn declaration made under penalty of perjury. TEX. CIV. PRAC. & REM. CODE § 132.001. The reference to “any other requirements of law” incorporates the requirements of Sections 18.001 and 18.002 of the Civil Practice and Remedies Code for affidavits offered as prima facie proof of the cost or necessity of services or medical expenses. The form medical expenses affidavit that was added to this rule in 2013 has been removed as unnecessary. It can now be found in Section 18.002(b-1) of the Civil Practice and Remedies Code.

Notes of Decisions (767)

Rules of Evid., Rule 902, TX R EVID Rule 902 Current with amendments received through August 15, 2014

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Tab D: Local Smith County Rules

LOCAL SMITH COUNTY RULES OF CIVIL TRIAL JUDICIAL DISTRICT COURTS AND COUNTY COURTS AT LAW SMITH COUNTY, TEXAS

The following local rules of civil trial are adopted for use in non-family law civil trials in the 7th Judicial District Court, 114th Judicial District Court, 241st Judicial District Court, 321st Judicial District Court, County Court at Law, County Court at Law No. 2, County Court at Law No. 3 and the County Court of Smith County, Texas.

It is ORDERED that these rules shall be published, in a manner reasonably calculated to bring the rules to the attention of attorneys practicing before the Smith County courts, on or before November 23, 1998.

These rules shall be interpreted in a manner consistent with the Texas Rules of Civil Procedure and any rule of the First Administrative Judicial Region.

The Smith County District Clerk and the Smith County Court Clerk shall make the Local Smith County Rules of Civil Trial available, upon request, for review to citizens and members of the bar.

It is ORDERED that these rules are effective beginning on April 1, 1999 or upon their approval by the Texas Supreme Court pursuant to T.R.C.P.3a, whichever occurs later.

RULE 1. The objective of the Rules of Civil Trial is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law and established rules of procedural law. To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, the rules shall be applied to ensure that, so far as reasonably possible, all matters are brought to trial or final disposition in conformity with the rules established by the Texas Supreme Court and laws of the State of Texas.

RULE 2. MOTIONS.

2.1 Certification of Conference. Before filing a motion, counsel for a moving party must confer or certify that a reasonable effort has been made to confer with the counsel, if known, of all parties affected by the requested relief to determine whether or not the contemplated motion will be opposed. Such a conference is required for all motions except motions to dismiss the entire action, motions to quash, motions for protection, temporary restraining orders, motions for judgment on the pleadings, motions for summary judgment, and motions for new trial.

The purpose of the conference requirement is to promote a frank exchange between counsel to resolve issues by agreement or to at least narrow and focus the matters in controversy before judicial resolution is sought.

2

If a motion to compel or for sanctions is sought, the Court will not consider the motion unless the movant certifies that the movant has conferred with or made a reasonable effort to confer with opposing counsel in an effort to resolve the dispute without the necessity of Court intervention and that the attempt has failed.

2.2 Form. Motions shall be in writing and shall be accompanied by a proposed order granting the relief sought. The proposed order shall be a separate instrument. All pleadings, motions, orders and other papers filed with the Court shall be consecutively numbered at the bottom of the page.

2.3 Submission. Motions shall state a date of submission at which time the Motion will be considered without a hearing, unless both a request for oral argument and a response are filed. The movant shall select the date of submission which shall be no sooner than the Monday following fifteen (15) days from date of filing, except on leave of Court. The motion will be submitted to the Court for ruling on that date or later.

Submission date on motions for summary judgment shall be no sooner than the expiration of thirty (30) days from the date of filing of the motion for summary judgment. A response, if any, to a motion for summary judgment shall be filed and served seven (7) days before the submission date pursuant Tex. R. Civ. Proc. Rule 166a. However, the Court will not actually hear oral argument on a motion for summary judgment unless (i) properly requested pursuant to Local Rule 2.7., and (ii) the Court determines that oral argument will substantially aid the Court in ruling on the motion for summary judgment. Counsel are encouraged to include citations and copies of any cases believed to be controlling as part of the motion or response.

2.4 Opposed Motions. All opposed motions must include either (i) a certificate which states that a conference was held and indicates the date of the conference and the attorneys who conferred, or (ii) a certificate explaining why it was not possible to hold the conference. Each contested motion must be accompanied by a separate proposed order and by a brief setting forth the movant's contentions of fact and law, unless a brief or proposed order is not required.

The clerk of the court is directed not to submit opposed motions to the judge unless there has been compliance with this rule.

2.5 Unopposed Motions. All unopposed motions must be accompanied by agreed proposed orders, signed by the parties or their attorneys. Motions without opposition and their orders must be captioned "Agreed."

2.6 Responses and Replies. Failure to respond to a motion is deemed to be a representation of no opposition unless objections are already on file. Responses to motions must be filed at least two working days before the date of submission, be in writing and supported by authority, and be accompanied by a separate form order denying the relief sought, unless the Texas Rules of Civil Procedure provide otherwise.

3

2.7 Oral Argument. The motion or response shall include a request for oral argument, if desired, in the requesting party's motion or response. A request for an oral argument alone is not a response under Rule 2.6.

2.8 Motions for Continuance or Postponement.

(1) All Motions for Continuance or Postponement must be filed in writing with the Court at least seven (7) days prior to the hearing in the cause, except for good cause shown, and a copy properly served upon opposing counsel or unrepresented opposing parties.

(2) No request to continue, pass, postpone or reset any trial, pretrial or other hearing shall be granted unless counsel for all parties involved consent, or unless all parties not joining in such request or their counsel have been notified and have had opportunity to object. It is discretionary with the Court as to whether or not to grant any requested continuance or postponement even if such request is unopposed.

(3) All second or subsequent Motions for Continuance must be personally approved and signed by the client for whom a postponement is requested, or if the client is unavailable or out of state, counsel may certify that his client has been mailed a copy of the motion by certified mail, return-receipt requested with a cover letter stating in a separate paragraph in bold face type, The postponement is being sought by (attorney's name) for (the party's name).

RULE 3. PRETRIAL.

3.1 Civil Case Joint Questionnaire

The Court orders that the Civil Case Joint Questionnaire, provided by the Smith County District or County Clerk’s office, be completed and filed by the Plaintiff after conferring with all counsel and pro se parties. The questionnaire must be filed within ninety (90) days of the date of the filing of the case.

3.2 Discovery Control Plan and Scheduling Order. The Court will enter a discovery control plan and scheduling order which will control the course of litigation and may not be amended without leave of Court.

Level 1 Discovery Control Plan shall apply to any suit as provided by 190.2 of the Texas Rules of Civil Procedure.

Level 2 Discovery Control Plan shall apply to any suit as provided by 190.3 of the Texas Rules of Civil Procedure.

The plaintiff or defendant may certify to the Court in writing at the time of the filing

4

of plaintiff's pleading or the defendant's answer that the litigation is complex and should proceed under a 190.4 (Level 3) Discovery Control Order. If the Court concurs, the Court will enter a scheduling order to accommodate complex litigation as provided by 190.4 of the Texas Rules of Civil Procedure.

The Court may modify a discovery control plan at any time and shall do so when the interest of justice requires or when required under 190.5 of the Texas Rules of Civil Procedure. The date for the discovery deadline may be extended by Agreed Motion signed by all parties, so long as the proposed extension does not adversely affect the other dates or deadlines on the Scheduling Order.

3.3 Exhibits.

(1) Each counsel will file a list of all potential exhibits to be offered, provide a copy to opposing counsel, and make all such exhibits available for examination by opposing counsel, and do so before the Pre-Trial Conference or at least seven (7) days before trial, whichever occurs first. The only exceptions to this rule are rebuttal exhibits which cannot be anticipated. Designation of substantially more documents than an attorney or party reasonably expects to actually introduce at trial will subject the offending party to sanctions and/or contempt of Court. Failure to comply with this rule will subject the offending party to sanctions and/or contempt of Court.

(2) A party’s production of a document in response to written discovery is selfauthenticated as provided by Section 193.7 of the Texas Rules of Civil Procedure. Any counsel requiring authentication of any other exhibits not covered by Section 193.7, must so notify in writing the offering counsel at least fifteen (15) days before trial or pre-trial conference, whichever is earlier, except on leave of Court for good cause. Failure to do so is an admission of authenticity.

(3) Any other objections to admissibility of exhibits must, where possible, be made at least fifteen (15) days before trial or pre-trial conference, whichever is earlier, except on leave of Court for good cause, and the Court notified in writing with copies to all counsel accompanied by supporting legal authorities and copies of the exhibits in dispute. All objections will normally be ruled upon by the Court prior to trial.

(4) The offering party must pre-mark and pre-number his or her own exhibits prior to trial and must provide a list of exhibits to be offered at trial to the court reporter before jury selection.

(5) All exhibits will be offered and received in evidence as the first item of business at the trial.

3.4 Joint Pretrial Order.

(1) Filing. A joint pretrial order shall be filed by the Plaintiff's attorney at least fifteen (15) days before the scheduled date of trial unless specified otherwise in the

5

Scheduling Order. If an attorney for either party does not participate in the preparation of the joint pretrial order, the opposing attorney shall file a separate pretrial order with an explanation of why the joint order was not submitted.

(2) Contents. The pretrial order must contain; (1) a summary of the claims and defenses of each party; (2) pending motions needing resolution; (3) a statement of the stipulated facts; (4) a list of the contested issues of fact; (5) a list of those legal propositions not in dispute; (6) a list of contested issues of law; (7) names and addresses of witnesses and each party shall designate whether the witness will testify by deposition or in person; subject to change only upon good cause affirmatively established to the Court; (8) a statement that settlement efforts have been exhausted; (9) an estimate of the length of trial; (10) the signature of each attorney; and (11) a place for the date and signature of the Court.

(3) Video Presentations. Attorneys proposing to use video presentations must present the page and line numbers to opposing counsel at the time assigned for the entry of the joint pretrial order. Objections by opposing counsel must be presented to the Court and the offering attorney prior to the joint pretrial conference. Any edited video depositions shall be presented for exhibition to opposing counsel to examine any piecemeal editing, relocation of testimony, exhibition out of context, etc. Opposing counsel shall be entitled to assert the rule of Optional Completeness and have portions of the deposition proposed by opposing counsel or the entire deposition introduced after the initial presentation unless counsel agree to have a single presentation whether edited or in its unedited entirety. Any objections to the proposed video depositions shall be made prior to the pretrial conference and rulings will be made by the Court at the pretrial conference so that the video presentation of a party may be made uninterrupted.

(4) Objections. Objections to any matters set forth in the pretrial order shall be filed with the Court prior to the pretrial conference. All such objections will be ruled upon by the Court at the pretrial conference.

3.5 Exclusion. The parties may file, within twenty (20) days of the date of the scheduling order, an agreed motion and proposed order requesting exclusion of certain cases, i.e. collection suits, worker's compensation, simple car wrecks, slip and fall, etc., from the requirements of a joint pretrial order and pretrial conference and the Court will consider and rule upon such motion.

3.6 Pretrial Conference. A pretrial conference will be held according to the scheduling order entered by the Court which will normally be ten (10) days prior to the case's trial setting or at such other dates as set by the trial Court.

RULE 4. TRIALS.

4.1 Manner of Setting. Cases shall be set for trial by order of the Court.

4.2 Date of Setting. Cases shall be set for trial for a date certain. If a case is not tried by

6

the second Friday after the date it was set, whether because of a continuance or because it was not reached, the Court shall reset the case to a date certain. Unless all parties agree otherwise, the new setting must comply with all requisites of T.R.C.P. 245.

4.3. Witness Attendance. Each party is responsible for the attendance at trial of its proposed witnesses, and may not rely on another party's list for attendance of a witness. Witnesses under subpoena are not affected by this rule.

4.4 Witness Numbers. Each party or parties with the same alignment on a disputed issue will be allowed up to two (2) witnesses on any disputed issue, such as expert witnesses, character witnesses, etc., except on good cause shown.

RULE 5. SUBMISSION OF ORDERS, DECREES AND JUDGMENTS.

Within ten (10) days after rendition of an order, an agreed order, decision, judgment or an announced settlement by counsel, counsel for the moving party shall cause, unless ordered otherwise, all such orders, decisions, or judgments, or documents to be reduced to writing and delivered to opposing counsel with an appropriate signature line to allow opposing counsel to acknowledge "approved as to form" or "approved as to form and substance," as appropriate. Opposing counsel must then return such order, decision, judgment, or document to the originating counsel within ten (10) days either with signature subscribed thereon or with objections in writing. Once attorneys for all parties have signed the document, it should be forwarded to the court coordinator for signature by the trial judge. If objections to the form or the substance of the order are made, the moving counsel is required to either amend the order to alleviate the objections and resubmit it to opposing counsel or forward it to the Court with a request for a hearing. If a response as required herein is not provided within ten (10) days of receipt of the proposed order, originating counsel may present the order and evidence of opposing counsel's receipt to the Court for signature and rendition.

If either counsel or a party cause or require a hearing that a reasonable and prudent party or attorney in the same or similar circumstances would not have caused or required, the Court shall award attorney's fees against such party or attorney in favor of the other party including any reasonable fees or expenses incurred as a result of causing or requiring the hearing. If counsel for the moving party or alternate counsel ordered by the Court to prepare the order, decision, judgment or other document fail to comply with the provisions of this rule, the Court shall award attorney's fees against the failing party in favor of the other party for fees and expenses incurred reasonably by the other party's counsel in preparing the order or document. The Court may consider any requests for extensions of time under this rule for good cause shown only.

RULE 6. DISMISSAL DOCKETS.

7

The following cases are eligible for dismissal for want of prosecution pursuant to T.R.C.P. 165a:

(a) Cases on file for more than 180 days in which no answer has been filed or is required by law;

(b) Cases which have been on file for more than twelve (12) months and are not set for trial;

(c) Cases in which any party seeking affirmative relief fails to appear for any hearing or trial of which the party has notice.

RULE 7. SETTLEMENT.

Counsel is to notify the Court immediately of settlements that obviate Court settings as unnecessarily summoned jury panels are disruptive to the Court and jurors.

RULE 8. VACATIONS OF COUNSEL.

An attorney may designate not more than four (4) weeks during the year as vacation, during which time he will not be assigned to trial or required to engage in any pretrial proceedings. A separate written designation in each cause must be filed with the Court Coordinator at least 45 days in advance of the vacation period unless the case has been set for trial prior to counsel's vacation designation. This rule operates only where lead counsel, as defined by T.R.C.P. 8 is affected, unless the Court expands coverage to other counsel.

If a case is set by the Court during the designated vacation period, counsel must timely file with the Court a written Motion for Continuance to bring to the Court’s attention the filed vacation designation.

RULE 9. APPEARANCES.

Attorneys must make court appearances in person unless all matters to be considered in the hearing have been agreed by all parties and such agreement is reflected in a letter or fax, signed by all affected attorneys, to the Court through its court coordinator. If a fax is sent to manifest such agreement, the court coordinator should be notified by telephone when the fax is actually transmitted.

The Court may allow, upon request, counsel to appear by telephone conference call. This, however, is discretionary with each individual Court.

RULE 10. EFFECTIVE DATE.

These rules shall become effective upon their approval by the Texas Supreme Court pursuant to T.R.C.P.3a or April 1, 1999, whichever occurs later.

8

ORDERED AND SIGNED on this the ____ day of ___________________, 1999.

_______________________________________ ____________________________________ LOUIS B. GOHMERT, JR. CYNTHIA STEVENS KENT Judge, 7th Judicial District Court Judge, 114th District Court Smith County, Texas Smith County, Texas

_______________________________________ ____________________________________ DIANE DEVASTO CAROLE CLARK Judge, 241st District Court Judge, 321st District Court Smith County, Texas Smith County, Texas

_______________________________________ ____________________________________ THOMAS DUNN RANDALL ROGERS Judge, County Court at Law Judge, County Court at Law No. 2 Smith County, Texas Smith County, Texas

_______________________________________ ____________________________________ FLOYD GETZ LARRY CRAIG Judge, County Court at Law No. 3 Judge, Smith County Court Smith County, Texas Smith County, Texas

Tab E: Affidavit of Pam Miller

State ofTexas § § County of Cherokee § Mfidavit of Pam Miller

Before me, the undersigned Notary Public, personally appeared Pam Miller, who, being duly sworn, deposed as follows: 1. My name is Pam Miller. I am an adult and I have personal knowledge of the facts stated herein. These facts are true and correct. 2. I am the founder and owner of Records & Review, a legal records service located in Jacksonville, TX. I am also a certified Legal Assistant and have been since 1988. I have operated Records & Review since 1992. 3. I am the custodian of records of Records & Review. Attached hereto are 81 pages of records from Records & Review. 4. The attached records are kept by Records & Review in the regular course of its business. 5. It was in the regular course of business of Records & Review for an employee or representative of Records & Review, with knowledge of the act, event, condition, opinion, or diagnosis recorded to make the record or to transmit information thereof to be included in such records. 6. The records were made at or near the time or reasonably soon thereafter. 7. The attached records are exact duplicates of the original records. 8. From my many years of practice in the legal records industry I have personal knowledge of the procedures of Records & Review as well as those of many other records services that operate in the State of Texas. Based upon that knowledge, I know it is an industry wide practice to transmit to third party record custodians, by mail, email or fax, a request for the voluntary production of documents in conjunction with the completion of a deposition on written questions, the execution of a Rule 902 business records affidavit, or both. In each such instance of which I am aware this request is accompanied by a draft form of a subpoena essentially identical to those found in the attached records. This practice encourages these non-party records custodians to produce documents without the necessity of being formally subpoenaed and having to give an oral deposition to authenticate the documents.

The draft form subpoena that accompanies the requ est is not formally served under the Rules of Civil Procedure; it is just sent with the deposition on written questions or the Rule 902 business records affidavit, whichever has been selected by the attorney requesting the service. The purpose of the draft subpoena is simply to give the records custodian an advance copy and the option to complete and return the deposition on written questions or the Rule 902 business records affidavit, as may be the case, or to indicate that their policies require that formal service of a subpoena is necessary. (Some records custodians prefer to have a subpoena for their files, even if it is not formally served.) 9. Based upon my knowledge of the industry practices these requests for voluntary production of documents accompanied by these draft subpoena forms are sent to hundreds or more third party records custodians each and every business day in Texas.

Pam Miller

n~ Subscribed to and sworn before me this _'--'\ __ day of October, 2014.

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DEPOSITION SUBPOENA DUCES TECUM THE STATE OF TEXAS TO ANY SHERIFF, CONSTABLE, OR ANY OTHER PERSON AUTHORIZED TO SERVE SUBPOENAS UNDER RULE 176 T.R.C.P.

GREETINGS:

YOU ARE HEREBY COMMANDED TO SUBPOENA AND SUMMON the following witnesses:

Custodian of Pharmacy Records for Brookshire's Pharmacy Via Email: rx@brookshires.com

to be and appear before a Notary Public of my designation for

Records & Review 190 County Road 4204 Jacksonville, TX 75766

Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce for inspection and photocopying ANY&ALL MEDICAL RECORDS including, BUT NOT LIMITED TO: Patient information sheet, medical file, medical records, any photographs (color if available), chiropractic records, physical therapy records, pharmacy records, insurance treatment notes, insurance records, psychiatric records, counseling notes, prescriptions, x-ray films, radiology· reports, lab reports, pathology reports, narrative reports, rehabilitation notes, office notes (handwritten or typed), any correspondence from other doctors or attorneys, and anything else reduced to writing in the possession, custody or control of the said witness pertaining to:

KATHERINE WILLIAMS; DOB: SS#:

This Subpoena is being issued at the instance of the Defendants in that certain Cause No. 2013-505-CCL2 in the County Court At Law No. 2 of Gregg County, Texas, styled

KATHERINE WILLIAMS VS. TIANA BETH BALES and JOHN BALES

and there remain from day to day and time to time until discharged by me according to law. This subpoena is issued in accordance to Rule 176. T.R.C.P., and falls under exception to confidentiality, Rule 509(e)(4). Rule 176.8(a) Contempt: Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed in contempt ofthe court from which the subpoena is issued or a district court in the coun in which the sub oena is served and rna be unishable b fine or confinement or both.

'2014.

Reply to: Records & Review 190 County Road 4204 Jacksonville, TX 75766 (903) 586-2182 I (903) 586-5901 FAX

Attorney requesting subpoena: CLAY WHITE/AMY MILLS WHITE SHAVER LAW FIRM

CAUSE NO. 2013-505-CCL2 KATHERINE ¥liLLIAMS § IN THE COUNTY COURT § G~ !PI{ VS. § ATLAWN0.20F Grscof.l~yfC § JUt "· TIANA BETH BALES and JOHN BALES § GREGG COUNTY, ~oc,l1 (Of4 c~ oclf NOTICE OF INTENTION TO TAKE ' 01s;-~ DEPOSITION BY WRITTEN QUESTIONS ---o~2ft.,J~ TO: Marty Young, GOUDARZI & YOUNG, LLP, PO Drawer 910, Gilmer, TX 75644 PLEASE TAKE NOTICE that after twenty (20) days from the service of a copy hereof: and of the attached questions, a deposition by written questions will be taken of the CUSTODIAN(S) OF MEDICAL RECORDS FOR: East Texas Medical Center, 830 S. Beckham, Tyler, TX 75701 Good Shepherd Medical Center, 700 E. Marshall Avenue, Longview, TX 75601 Titus Regional Medical Center, 2001 N~ Jefferson, Mt. Pleasant, TX 75455 AK Fitness Therapy Center, 2903 Judson Rd., Longview, TX 75605 Daingerfield Family Medical Clinic, 213 W Scurry St, Daingerfield, TX 75638 Damascus Horne of Redwater, Inc., P.0. Box 583, Redwater, TX 75573 Family Health Care Center, 302 S Central St Suite A, Hallsville, TX 75650 Dr. Martin Hilton, 709 Hollybrook, Suite 3401, Longview, TX 75605 Dr. Larry Huffman and/or Family Healthcare Center, 2010 Bill Owens Parkway, Longview, TX 75604 Lewis Chiropractic, 1412 Linda Drive, Daingerfield, TX 75638 Open Imaging of Longview, P.O. Box 100, Paris, TX 75460 Precision Spine Care, PO Box 6605, Tyler, TX 75711 Psychiatric Associates of McKinney, 5900 S. Lake Forest Dr, Ste. 300, McKinney, TX 75070 Dr. Barry Rath, 826 S Fleishel, Tyler, TX 75701 Texas Pain, 1814 Roseland Blvd., Suite 200, Tyler, Texas 75701 Women's Clinic, 1903 Mulberry Ave, Mt. Pleasant, TX 75455 Brookshire's Pharmacy, P.O. Box 1411, Tyler, TX 75711 Walgreen's Pharmacy, 1901 E. Voorhees St., Mail Stop 735, Danville, IL 61834 before a Notary Public or an authorized officer for RECORDS & REVIEW, 190 County Road 4204, Jacksonville, TX, 75766. Which deposition with attached questions may be used in evidence upon the trial of the above-styled and numbered cause pending in the above-named court. Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce for inspection and photocopying ANY & ALL MEDICAL RECORDS including, BUT NOT LIMITED TO: Patient information sheet, medical file, medical records, any photographs (color if available), chiropractic records, physical therapy records, pharmacy records, insurance treatment notes, insurance records, psychiatric records, counseling notes, prescriptions, x-ray films, radiology reports, lab reports, pathology reports, narrative reports, rehabilitation notes, office notes (handwritten or typed), any correspondence from other doctors or attorneys, and anything else reduced to writing in the possession, custody or control of the said witr1ess pertaining to:

KATHERINE WILLIAMS; DOB: and turn all such records over to the Notruy Public authorized to take this deposition for inspection and photocopying of the same may be made and attached to said deposition.

Respectfully submitted, CLAY WHITE/ AMY MILLS WHITE SHAVER LAW FIRM ATTORNEYS FOR DEFENDANTS STATE BAR N0.21292220 I 00784607 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Notice of Intention to Take Deposition by Written Questions has been delivered to the individuals listed below, by oortifiod mail, postage prepoid, h ndel~ ~'by 1<lephonio doomnont tnmsfu, on till; the grn day of July, .

2014. ~~

RECORDS & REVIEW cc: Marty Y oun.g

CAUSE NO. 2013-505-CCL2 KATHERINE WILLIAMS § IN THE COUNTY COURT § VS. § ATLAWNO. 2 OF § TIANA BETH BALES and JOHN BALES § GREGG COUNTY, TEXAS

DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS, CUSTODIAN OF PHARMACY RECORDS FOR:

BROOKSHIRE'S PHARMACY

1. Please state your full name, occupation, and official title.

Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

2. Are you the custodian of the pharmacy records of BROOKSHIRE'S PHARMACY or do you have authority to release these records? Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

3. Are you among those who have possession, custody, control of or access to all pharmacy records pertaining to KATHERINE WILLIAMS? Answ~=------------------------------------

4. Are the aforementioned records kept in the regular course ofbusiness of your employer?

Answer:_____________________________________

5. Was it in the regular course ofbusiness of BROOKSHIRE'S PHARMACY for a person with personal knowledge of the act, event, condition or opinion recorded to make the record or to transmit information thereof to be included in such record? Answer: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

6. Please state whether these records were made at the time or shortly after the time of the transaction or service recorded. Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

7. Have you received a subpoena duces tecum (including this one) for records pertaining to KATHERINE WILLIAMS? Answer._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

8. Please release exact duplicates of the records as requested on the deposition subpoena, or the originals thereof, for photocopying for attachment to this deposition. Have you done as requested? If not, why not? Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

WITNESS (Custodian ofRecords)

Sworn to and subscribed before me on the _ _ _ day of _ _ _ _ _ _ _ _ _ _ _, 2014.

Notary Public In and for The State of _ _ __

My Commission Expires:._ _ _ _ _ _ _ __

INSTRUCTI FOR COMPLETING RE UEST

IF T.HERE ARE LEGALS WITH THIS REQUEST DO NOT USE WHITE OUT TO CORRECT ANY ERRORS. See #4.

1. IF the TOTAL COST OF PROCESSING this request exceeds $75.00, please call our office BEFORE processing them for atforney approvaL

2. IF the request includes any legal documents, the legal documents are to be completed by the Custodian. PLEASE PRINT YOUR NAME CLEARLY.

3. Please READ and ANSWER each question, and SIGN on the Witness/Affiant line. Your si nature m notarized. The NOTARY must SIGN on the notary line as well as provide the notary SEAL to the ·LEFT of the signature.

4. WHITE OUT IS NOT allowed on legal documents. It renders the document inadmissible in court. If you happen to make a mistake on the legals, please call and we will send you another one, or we can assist you in making a correction.

PLEASE MAIL TO RECORDS & REVIE 190 County Road 4.204 Jacksonville, TX 75766 P.hone: (903) 586-2182 ·Fax: (903) 586-5901

Sub oena in a Civil Case

Issued by the UNITED STATES DISTRICT -COURT FOR THE EASTERN DISTRICT OF TEXAS, MARSHALL DMSION

SHANNA W. SMITH SUBPOENA DUCES TECUM

vs. IN A CIVIL CASE

TIRE CENTERS, LLC CNIL ACTION NO. 2: 14-CV-350

TO: CareFirst Medical Associates, Attn: Custodian of Medical Records I Billing 403 Hwy 110 N, Whitehouse, TX 75791 D YOU ARE COJv.IMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case. Place of Testimony: Courtroom

Date and Time

D YOU ARE COJv.IMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case.

Place ofDeposition: Date and Time

~ YOU ARE COMMANDED to produce and permit inspection and copying ofthe following documents or objects at the .'· 7""" place, date, and time specified concerning THE FOLLOWING MEDICAL RECORDS/BILLING BEGINNING 05102/13 TO PRESENT including, BUT NOT LIMITED TO: Patient information sheet, medical file, medical records, chiropractic records, physical therapy records, pharmacy records, insurance treatment notes, insurance records, itemized billing statements, psychiatric records, counseling notes, prescriptions, radiology reports, lab reports, narrative reports, rehabilitation notes, office notes (handwritten or typed), any correspondence from other doctors or attorneys, and anything else reduced to writing in the possession, custody or control of the said witness pertaining to:

SHANNA WYNNE (WHITELEY) SMITH; DOB: . ~ SS#: Place: Date and Time

RECORDS & REVIEW,l90 COUNTY ROAD 4204 Within Seven (7) JACKSONVILLE, TX, 75766 Days From Receipt (903) 586-2182 I (903) 586-5901 FAX of Subpoena

D YOU ARE COJv.IMANDED to permit inspection of the following premises at the date and time specified below.

Premises: Date and Time

Any organization not a part to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rules of Civil Procedure, 30(b)(6). Issuing Officer Signature and Title (Indicate if attorney for Plaintiff or Defendant) Date:

IwCERw.t~~~~ tW KEITH MILLER I RANDY AKIN, ATTORNEYS FOR PLAINTIFF }S)dlo\ v± RECORDS &REVIEW, 190 COUNTYROAD4204, JACKSONVlLLE, TEXAS 75766 (903) 586-2182

IN THE UNITED STATES DISTRICT COURT OF THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION SHANNA Vl. SMITH § § vs. § CIVIL ACTION NO. 2:14-CV-350 § TIRE CENTERS, LLC §

NOTICE OF INTENTION TO TAKE DEPOSITION BY WRITTEN QUESTIONS TO: Belinda Arambula/Jeff Jury, BURNS, ANDERSON, JURY & BRENNER, 7804 Bell Mountain Dr., Suite 100, Austin, TX 78730 PLEASE TAKE NOTICE that after fourteen (14) days from the service of a copy hereof, and of the attached questions, a deposition by written questions will be taken of the CUSTODIAN(S) OF MEDICAL RECORDS/BILLING FOR: Texas Spine & Joint Hospital, 1814 Roseland Blvd., Tyler, TX 75701 Aegis Sciences Corporation, 515 Great Circle Road, Nashville, TN 37228 (Billing Only) CareFirst Medical Associates, 403 Hwy 110 N, Whitehouse, TX 75791 East Texas Anesthesiology Associates, 3200 Troup Hwy, Suite 200, Tyler, TX 75711 (Billing Only) Precision Spine Care, PO Box 6605, Tyler, TX 75711 PSI Premier Specialties, 8800 Shoal Creek, Ste. B, Austin, TX 78757 Texas Pain, 181.4 Roseland Blvd., Suite 200, Tyler, Texas 75701 Tyler Radiology Associates, 837 S. Fleishel Ave., Tyler, TX 75701 (Billing Only) UDM Medical Services, 10935 CR 159, Tyler, TX 75703 Major's Pharmacy, 108 Shelly Dr., Tyler, TX 75701 The Roseland Pharmacy, 1814 Roseland Blvd., Tyler, TX 75701 before a Notary Public or an authorized officer for RECORDS & REVIEW, 190 County Road 4204, Jacksonville, TX, 75766. Which deposition with attached questions may be used in evidence upon the trial of the above-styled and numbered cause pending in the above-named court. Notice is further given that request is hereby made as authorized under the Federal Rules, to the Officer authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce for inspection and photocopying THE FOLLOWING MEDICAL RECORDS/BILLING BEGINNING 05102113 TO PRESENT including, BUT NOT LIMITTED TO: Patient information sheet, medical file, medical records, chiropractic records, physical therapy records, pharmacy records, insurance treatment notes, insurance records, itemized billing statements, psychiatric records, counseling notes, prescriptions, radiology reports, lab reports, narrative reports, rehabilitation notes, office notes (handwritten or typed), any correspondence from other doctors or attorneys, and anything else reduced to writing in the possession, custody or control of the said witness pertaining to: SHANNA \VYNNE (WHITELEY) SMITH; DOB: and turn all such records over to the Notary Public authorized to take this deposition for inspection and photocopying of the same may be made and attached to said deposition. Respectfully submitted, KEITH MILLER G.R. (RANDY) AKIN ATTORNEY-AT-LAW G.R. (RANDY) AKIN, P.C. ATTORNEY FOR PLAINTIFF ATTORNEY FOR PLAINTIFF STATE BAR NO. 14093750 STATE BARNO. 00954900

CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Notice of Intention t~ T , Deposition by Written Questions has been delivered to the individuals listed below, by certified mail, posta~epa~ h tlelivered or by telephonic document transfer, on this the 181h day of August, 2014. . I / V , \ '

' 1\

cc: Belinda Arambula/Jeff Jury

IN THE UNITED STATES DISTRICT COURT OF THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION SHANNA Vl. S:MITH § § vs. § CIVIL ACTION NO. 2:14-CV-350 § TIRE CENTERS, LLC §

DIRECT QUESTIONS TO BE PROPOUNDED TO THE 'WITNESS, CUSTODIAN OF MEDICAL RECORDS FOR:

CAREFIRST MEDICAL ASSOCIATES 1. Please state your full name, occupation, and official title.

Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

2. Are you of sound mind, capable of answering these questions, and personally acquainted with the facts here stated?

Answ~=----------------------------------------------------------------

3. Are you the custodian of the medical records of CAREFIRST MEDICAL ASSOCIATES or do you have authority to release these records? Answer:____________________________________________________________

4. Are you among those who have possession, custody, control of or access to medical records (Beginning 05/02/13 to present) pertaining to SHANNA SMITH? Answ~=·------------------~-------------------------

5. Are the aforementioned records kept in the regular course of business of your employer?

Answer.______________________________________________________

6. Was it in the regular course of business of CAREFIRST MEDICAL ASSOCIATES for a person with personal knowledge of the act, event, condition or opinion recorded to make the record or to transmit information thereof to be included in such record? Answer:

---------------------------------------------------------

7. Please state whether these records were made at the time or shortly after the time of the transaction or service recorded. Answer: __________________________________________________

8. Have you received a subpoena duces tecum for medical records (Beginning 05/02113 to present) pertaining to SHANNA SMiffi? Answ~=---------------------------------------------

9. Please release exact duplicates of the records as requested on the deposition subpoena, or the originals thereof, for photocopying for attachment to this deposition. Have you done as requested? If not, why not? Answer:_______________________________________________

10. Do the written records indicate treatment for injuries sustained in an accident which occurred on 05/02/13?

Answ~=·--------------------------------------------------

WITNESS (Custodian ofRecords)

Sworn to and subscribed before me on the ____ day of _ _ _ _ _ _ _ _ ___, 2014.

Notary Public In and for The State of _ _ _ __

My Commission Expires:_ _ _ _ _ _ __

IN THE UNITED STATES DISTRICT COURT OF THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION SHANNA Vl. SMITH § § vs. § CIVIL ACTION NO. 2:14-CV-350 § TIRE CENTERS, LLC §

DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS, CUSTODIAN OF BILLING FOR: CAREFIRST MEDICAL ASSOCIATES 1. Please: state your full name, occupation, and official title.

Answer:

---------------------------------------------------------------------

2. Are you of sound mind, capable of answering these questions, and personally acquainted with the facts here stated?

Answer:______________________________________________________________

3. Are you the custodian of the billing ofCAREFIRST MEDICAL ASSOCIATES or do you have authority to release these records?

Answ~=-------------------------------------------------------------------

4. Are you among those who have possession, custody, control of or access to billing beginning 05102113 to PRESENT pertaining to SHANNA SMITH? Answer:_________________________________________________

5. Are the aforementioned records kept in the regular course of business of your employer?

Answer:_____________________________________________________

6. Was it in the regular course ofbusiness ofCAREFIRST MEDICAL ASSOCIATES for a person with personal knowledge of the act, event, condition or opinion recorded to make the record or to transmit information thereof to be inclluded in such record?

Answ~=------------------------------------------------------------------

7. Please state whether these records were made at the time or shortly after the time of the transaction or service recorded. Answ~: ______________________________________________________________

8. Have you received a subpoena duces tecum for the billing beginning 05102/13 to PRESENT pertaining to SHANNA SMITH? Answ~: ____________________________________________________________________

9. Please release exact duplicates of the records as requested on the deposition subpoena, or the originals thereof, for photocopying for attachment to this deposition. Have you done as requested? If not, why not? Answ~:. ___________________________________________________________________

10. Please state whether such charges are reasonable for like or similar services rendered in your vicinity?

Answ~:. ____________________________________________________________________

11. Please state whether the facility services as reflected in the facility charges, as prescribed by the physician(s) in charge, were necessary for the proper care and treatment of SHANNA SMITH? Answer: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

12. Please state the amount of medical expenses incurred beginning 05/02/13 to PRESENT pertaining to SHANNA SMITH. Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

13. Please: state the amount of medical expenses paid by or on behalf of SHANNA SMITH for dates of service beginning 05102/13 to PRESENT to date? Answer:_______________________________________________

14. Please state the patient's responsibility for the amount outstanding for dates of services beginning 05102113 to PRESENTto date? Answer:.______________________________________________

WITNESS (Custodian ofBilling)

Sworn to and subscribed before me on the _ _ _ day of_ _ _ _ _ _ _ _ _ _ _ ___, 2014.

Notary Public In and for The State of _______

My Commission Expires: ____________

Direct Questions Page 2

IN THE UNITED STATES DISTRICT COURT OF THE EASTERN DISTRICT OF TEXAS MARSHALL DMSION SHANNA V..T. SMITH § § vs. § CIVILACTIONNO. 2:14-CV-350 § TIRE CENTERS, LLC §

CROSS QUESTIONS TO BE PROPOUNDED TO THE WITNESS, CUSTODIAN OF BILLING FOR: CAREFIRST MEDICAL ASSOCIATES 1. What is the current balance owed on your bill for charges incurred by or on behalf of Shanna W. Smith?

Answer: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

2. What are the amounts of payments that have been paid by Shanna W. Smith toward the balance of this itemized bill, setting forth the date the payment was made and the amount of each payment. (Please answer specifically; do not say "see attached" or make general references to your billing statement; you may attach a list of payments if there is not enough space to write your entries.) Answer:

----------------------------------------

3. Please list the amount owed by Shanna W. Smith, if any.

Answer:_ _ _ _ _ _ _ _ _ _ _ _~--------------------------

4. Were there any adjustments/reductions/deductions made to the total amount billed for services rendered to Shanna W. Smith? If so, please state the amount of the adjustments/reductions/deductions made. ·Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

5. Has any amount been written off for medical services rendered to Shanna W. Smith? If so, please state the total amount written off for medical services rendered on behalf of/to Shanna W. Smith. Answer:

-------------------------------------------

6. In sum, what is the total amount paid on behalf of Shanna W. Smith for medical services rendered if any?

Answer:

--------------------------------------

7. In sum, what is the total amount owed by Shanna W. Smith for medical services rendered, if any?

Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

8. Are there any bills in your system for Shanna W. Smith that predate May 2, 2013? If so, please list dates of service.

Answer:

-----------------------------------------------------------------

WITNESS (Custodian ofBilling)

Sworn to and subscribed before me on the ______ day of _ _ _ _ _ _ _ _ _ _ __, 2014.

Notary Public In and for The State of __________

My Commission Expires:._ _ _ _ _ _ _ _ _ __

Texas Administrative Code TITLE22 EXAMINING BOARDS PART9 TEXAS MEDICAL BOARD CHAPTER165 MEDICAL RECORDS RULE §165.2 Medical Record Release and Charges (a) Release of Records Pursuant to Written Request. As required by the Medical Practice Act,§ 159.006, a physician shall furnish copies of medical and/or billing records requested or a summary or narrative of the records pursuant to a written release of1he information as provided by the Medical Practice Act, §159.005, except if the physician determines that access to the information would be harmful to the physical, mental, or emotional health of the patient. The physician may delete confidential information about another patient or family member of the patient who has not consented to the release. If requested, the physician shall provide the requested records in electronic format, if such records are readily producible. If the requested records are not readily producible in a readable electronic format, the records shall be produced in a format as agreed to by the physician and the requestor. If by the nature of the physician's practice, the physician transmits health information in electronic form, the physician may be subject to the Health Insurance Portability and Accountability Act (HIPAA) 45 C.F .R. Parts 160-164. Unless otherwise provided under HIPAA, physicians subject to HIPAA must permit the patient or an authorized representative access to inspect medical and/or billing records and may not provide summaries in lieu of actual copies unless the patient authorizes the summary and related charges.

,..(b) Deadline for Release of Records. The requested copies of medical and/or billing -.., records or a summary or narrative of the records shall be furnished by the physician within 15 business days after the date of receipt of the request and reasonable fees for tlurnishing the information. ~

(c) Denial of Requests for Records. If the physician denies the request for copies of medical and/or billing records or a summary or narrative of the records, either in whole or in part, the physician shall furnish the patient a written statement, signed and dated, within 15 business days of receipt of the request stating the reason for the denial and how the patient can file a complaint with the federal Department of Health and Human Services (if the physician is subject to HIPAA) and the Texas Medical Board. A copy of the statement denying the request shall be placed in the patient's medical and/or billing records as appropriate.

(d) Contents of Records. For purposes of this section, "medical records" shall include those records as defined in §165.l(a) of this title (relating to Medical Records) and shall include copies of medical records of other health care practitioners contained in the records of the physician to whom a request for release of records has been made.

(e) Allowable Charges. (1) Paper Format. (A) The physician responding to a request for such information in paper format shall be entitled to receive a reasonable, cost-based fee for providing the requested information. (B) A reasonable fee for providing the requested records in paper format shall be a charge of no more than $25 for the first twenty pages and $.50 per page for every copy thereafter.

(2) Electronic Format. (A) The physician responding to a request for such information to be provided in electronic format shall be entitled to receive a reasonable, cost-based fee for providing the requested information in electronic format. (B) A reasonable fee for providing the requested records in electronic format shall be a charge of no more than: $25 for 500 pages or less; $50 for more than 500 pages.

(3) Hybrid Records Format. (A) The physician responding to a request for such information that is contained partially in electronic format and partially in paper format ("hybrid"), may provide the requested information in a hybrid format and shall be entitled to receive a reasonable, cost based fee for providing the requested information. (B) A reasonable fee for providing the requested records in a hybrid format may be a combination of the fees as set forth in paragraphs (1) and

(2) of this subsectilon.

(4) Other Charges. (A) If an affidavit is requested, certifying that the infonnation is a true and correct copy of the records, whether in paper, electronic or hybrid fonnat, a reasonable fee of up to $15 may be charged for executing the affidavit. (B) A physician may charge separate fees for medical and billing records requested. (C) Allowable charges for copies of diagnostic imaging studies are set forth in § 165.3 of this title (relating to Patient Access to Diagnostic Imaging Studies in Physician's Office) and are separate from the charges set forth in this section.

( 5) A reasonable fee for records provided in a paper, electronic or hybrid fonnat may not include costs associated with searching for and retrieving the requested infonnation, and shall include only the cost of: (A) copying and labor, including, compiling, extracting, scanning, burning onto media, and distributing media; (B) cost of supplies for creating the paper copy or electronic media (if the individual requests portable media) that are not prohibited by federal law; (C) postage, when the individual has requested the copy or summary be mailed; and (D) preparing a summary of the records when appropriate.

(f) Emergency Requests. The physician providing copies of requested medical and/or billing records or a summary or a narrative of such records shall be entitled to payment of a reasonable fee prior to release of the information unless the infonnation is requested by a licensed Texas health care provider or a physician licensed by any state, territory, or insular possession of the United States or any State or province of Canada if requested for purposes of emergency or acute medical care.

(g) Non-emergent Requests. In the event the physician receives a proper request for copies of medical and/or billing records or a summary or narrative of the records for purposes other than for emergency or acute medical care, the physician may retain the requested infonnation until payment is received. If payment is not routed with such a request, within ten calendar days from receiving a request for the release of such records, the physician shall notify the requesting party in writing of the need for payment and may withhold the information until payment of a reasonable fee is received. A copy of the letter regarding the need for payment shall be made part of the patient's medical and/or billing record as appropriate.

(h) Improper Withholding for Past Due Accounts. Medical and/or billing records requested pursuant to a proper request for release may not be withheld from the patient, the patient's authorized agent, or the patient's designated recipient for such records based on a past due account for medical care or treatment previously rendered to the patient.

(i) Subpoena Not Required. A subpoena shall not be required for the release of medical and/or billing records requested pursuant to a proper release for records under this section and the Medical Practice Act, § 159.006, made by a patient or by the patient's guardian or other representative duly authorized to obtain such records.

G) Billing Record! Requests. In response to a proper request for release of medical records, a physician shall not be required to provide copies of billing records pertaining to medical treatment of a patient unless specifically requested pursuant to the request for release of medical records.

(k) Prohibited Fees for Records Released Related to Disability Claims. The allowable charges as set forth in this chapter shall be maximum amounts, and this chapter shall be construed and applied so as to be consistent with lower fees or the prohibition or absence of such fees as required by state statute or prevailing federal law. In particular, under §161.202 of the Texas Health and Safety Code, a physician may not charge a fee for a medical or mental health record requested by a patient, fanner patient or authorized representative of the patient if the request is related to a benefits or assistance claim based on the patient's disability.

(1) Applicable Federal Law. Whenever federal law or applicable federal regulations affecting the release of patient infonnation are inconsistent with provisions of this section, the provisions of federal law or federal regulations shall be controlling, unless the state law is more restrictive/stringent. Physicians are responsible for ensuring that they are in compliance with federal law and regulations including the Health Insurance Portability and Accountability Act (HIP AA) 45 C.F.R. Parts 160-164. Source Note: The provisions of this§ 165.2 adopted to be effective December 29, 1997, 22 TexReg 12490; amended to be effective May 21, 2000, 25 TexReg 4349; amended to be effective November 19, 2000, 25 Tex:Reg 11282; amended to be effective September 19,2002,27 TexReg 8769; amended to be effective March 4, 2004,29 TexReg 1946; amended to be effective January 20, 2014,39 TexReg 273

INSTRUCTI FOR COMPLETING RE EST

IF THERE ARE LEGALS WITH THIS REQUEST DO NOT USE WHITE OUT TO CORRECT ANY ERRORS. See #4.

1. IF the TOTAL COST OF PROCESSING this request exceeds $75.00, please call our office BEFORE processing.them for attorney approvaL

2. IF the request includes any legal documents, the legal documents are to be completed by the Custodian. PLEASE PRINT YOUR NAME CLEARLY.

3. Please READ and .ANSWER each question, and SIGN on the.

Witness/Affiant line. Your signature must be notarized. The NOTARY must SIGN on the notary line as well as provide the notary SEAL to the 'LEFT of the signature.

4. ·wHITE OUT IS NOT allowed on legal documents.. It renders the document inadmissible in court. If you happen to make a mistake on the legals, please call and we will send you another one, or we can assist you in making a correction .

.PLEASE.MAIL TO. RE~CORDS & REVIE 190 County Road. 4.204 Jacksonville, TX 75766 P.hone: (903) 586-2182 ·Fax·: (903) 5·86-5901

DEPOSITION SUBPOENA DUCES TECUM THE STATE OF TEXAS SHERIFF, CONSTABLE, OR ANY OTHER PERSON AUTHORIZED TO SER ERRULE 176 T.R.C.P.

GREETINGS:

YOU ARE HEREBY COMMANDED TO SUBPOENA AND SU1vllviON the following witnesses:

Custodian of Records for AT&T Mobility LLC Fax#: 877-971-6093

to be and appear before a Notary Public of my designation for Records & Review 190 County Road 4204 Jacksonville, TX 75766

Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce for inspection and photocopying THE FOLLOWING CELL PHONE RECORDS including, BUT NOT LIMITED TO: 1) Any and all records pertaining to any and all calls received by and/or dialed from 936-715-8410 on February 2, 2012; and 2) All account and billing information for the 936-715-8410 showing the name of the account, the name of the person with the phone number, the charges and any other information relating to the account and billing for 936-715-8410 on February 2, 2012; and 3) Any and all Te:rt Messages received by and/or sent from 936-715-8410 on February 2, 2012, including but not limited to, the number from which the text message was received, the actual transcript of each of the incoming I outgoing text message(s); and the exact date, day and time the text message(s) was sent and/orreceived; and 4) Any and all Data Transfers received by and/or sent from 936-715-8410 on February 2, 2012, including but not limited to, the number from which the data transfer was received and/or sent, a specific description/actual transcript/image of each data transfer; and the .exact date, day and time the data transfer(s) was sent and/or received; and 5) Any and all Multimedia Messages received by and/or sent from 936-715-8410 on February 2, 2012, including but not limited to, the number from which the Multimedia Messages was received and/or sent, a specific description I actual transcript/image ofeachMultimediaMessage; and the exact date, day and time the MultimediaMessage(s) was sent ai:J.d/orreceived; and 6) Any and all Downloads received by and/or sent from 936-715-8410 on February 2, 2012, including but not limited to, the number from which the Download was received, a specific description/actual transcript/image of each Download; and the exact date, day and time the Download(s) was sent and/or received pertaining to:

CELL PHONE#: (936) 715-8410 This Subpoena is being issued at the instance of the Attorney for Plaintiff in that certain Cause No. C-1329439 on the docket of the 14SU' Judicial District Court ofNacogdoches County, Texas, styled

REINA RODRIGUEZ VS CIRILO GUTIERREZ ROJAS and SELECT ENERGY SERVICES, LLC and there remain from day to day and time to time until discharged by me according to law. This subpoena is issued in accordance to Rule 176, T.R.C.P., and falls under exception to confidentiality, Rule 509(e)(4). Rule 176.8(a) Contempt: Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed in contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punishable by fine or confinement, or both.

Witness my hand, this the day of_~.,__=OJ.fs==H------'' 2014.

Reply to:

~~ Records & Review 190 County Road 4204 Jacksonville, TX 75766 Notazy Public in and For the State of Texas (903) 586-2182 (903) 586-5901 FAX BARBARA JEAN·MARIE DOTSON Attorney requesting subpoena: MY COMMISSION EXPIRES June4, 2016 JEFF B. BADDERS BADDERS LAW FIRM

CAUSE NO. C-1329439 REINA RODRIGUEZ § INTHEDIST . TOF

vs. ~ NAc~#&~ c~UNr1~rx CIRILO GUTIERREZ ROJAS and ~ ·~ . 4/fe:<J SELECT ENERGY SERVICES, LLC § 145TH~~TSTRICT.

'$fSfR/Cr~

7

NOTICE OF INTENTION TO TAKE tl!lf '.1- •

DEPOSITION BY WRITTEN QUESTIONS TO: Clay Vlhite, WHITE SHAVERP.C., 205 W. Locust Ave., Tyler, TX 75702

PLEASE TAKE NOTICE that after twenty (20) days from the service of a copy hereof: and of the attached questions, a deposition by written questions will be taken of the CUSTODIAN(S) OF RECORDS FOR: AT&TMOBILITYLLC, Via Fax: (877) 971-6093 before a Notan; Public or an authorized officer for RECORDS & REVIEW, 190 County Road 4204, Jacksonville, JX, 75766. Which deposition with attached questions may be used in evidence upon the trial of the above-styled and numbered cause pending ill the above-named court. Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce for inspection and photocopying THE FOLLOWING CELL PHONE RECORDS including, BUT NOT LIMITED TO: 1) Any and all records pertaining to any and all calls received by and/or dialed from 936-715-8410 on February 2, 2012; and 2) All account and billing information for the 936-715-8410 showing the name of the account, the name of the person with the phone number, the charges and any other information relating to the account and billing for 936-715-8410 on February 2, 2012; and 3) Any and all Text Messages received by and/or sent from 936-715-8410 on February 2, 2012, including but not limited to, the number from which the text message was received, the actual transcript of each of the incoming I outgoing text message(s); and the exact date, day and time the text message(s) was sent and/or received; and 4) Any and all Data Transfers received by and/or sent from 936-715-8410 on February 2, 2012, including but not limited to, the number from which the data transfer was received and/or sent, a specific description/actual transcript/image of each data transfer; and the exact date, day and time the data transfer(s) was sent and/or received; and 5) Any and all Multimedia Messages received by and/or sent from 936-715-8410 on February 2, 2012, including but not limited to, the number from which the Multimedia Messages was received and/or sent, a specific description I actual transcript/image of each Multimedia Message; and the exact date, day and time the Multimedia Message(s) was sent andlorreceived; and 6) Any and all Downloads received by and/or sent from 936-715-8410 on February 2, 2012, including but not limited to, the number from which the Download was received, a specific description/actual transcript/image of each Download; and the exact date, day and time the Download(s) was sent and!orreceived pertaining to:

CELL PHONE#: (936) 715-8410 and turn all such records·overto the Notary Public authorized to take this deposition for inspection and photocopying of the same may be made and attached to said deposition.

Respectfully submitted, JEFF B. BADDERS BADDERS LAW FIRM ATTORNEYSFORPLAlNTWF STATE BARNO. 01496850 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Notice oflntention to Take Deposition by'Written Questions has been delivered to the individuals listed below, by certified mail, postage p paid, hand delivered or by telephonic document transfer, on this the 13"' day ofMay, 2014. ~

~RE-C_O_RD __S~&~RE~VIE==w~--------------

cc: Clay White

CAUSE NO. C-1329439 REINA RODRIGUEZ § IN THE DISTRICT COURT OF § vs. § NACOGDOCHESCOUNT~TX § CIRILO GUTIERREZ ROJAS and § SELECT ENERGY SERVICES, LLC § 145m JUDICIAL DISTRICT

DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS, CUSTODIAN OF RECORDS FOR:

AT&T MOBILITY, LLC 1. Please state your full name, occupation, and official title.

Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

2. Are you the custodian of the records of AT&T MOBIT.,ITY, LLC or do you have authority to release these records?

Answer.._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

3. Are you among those who have possession, custody, control of or access to any and all records pertaining to 936-715-

8410? Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

4. Are the aforementioned records kept in the regular course ofbusiness of your employer?

Answer=---------------------------------

5. Was it in the regular course of business of AT&T MOBILITY, LLC for a person with personallmowledge of the act, event, condition or opinion recorded to make the record or to transmit infonnation thereof to be included in such record? Answer:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

6. Please state whether these records were made at the time or shortly after the time of the transaction or service recorded.. Answer:~--------------------------------

7. Have you received a subpoena duces tecum (including this one) for the records pertaining to 936-715-8410?

Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _- - - - - - - - - - - - - -

8. Please release exact duplicates of the records as requested on the deposition subpoena, or the originals thereo~ for photocopying for attachment to this deposition. Have you done as requested? If not, why not? Answer.------------------------------------

WITNESS (Custodian ofRecords)

Sworn to and subscribed before me on the _ _ _ day of _ _ _ _ _ _ _ _ _ __, 2014.

Notaty Public In and for The State of _ _ __

My Commission Expires:_ _ _ _ _ _ _ __

INSTRUCTI FOR COMPLETING RE EST

IF THERE ARE LEGALS WITH THIS REQUEST DO NOT USE WHITE OUT TO CORRECT ANY ERRORS. See #4.

1. IF the TOTAL COST OF PROCESSI G this request exceeds $75.00, please call our office BEFORE processing them for attorney approvaL

2. IF the request includes any legal documents, the legal documents are to be completed by the Custodian. PLEASE PRINT YOUR NAME CLEARLY.

3. Please READ and ANSWER each question, and SIGN on the Witness/Affiant line. Your signature must be notarized. The NOTARY must SIGN on the notary line as well as provide the notary SEAL to the LEFT of the signature.

4. WHITE OUT IS NOT allowed on legal documents. It renders the document inadmissible in court. If you happen to make a mistake on the legals, please call and we will send you another one, or we can assist you in making a correction.

PLEASE MAIL TO RECORDS & REVIE 190 County Road 4204 Jacksonville, TX 75766 Phone: (903) 586-2182 Fax: (903) 586-5901

DEPOSITION SUBPOENA DUCES TECUM THE STATE OF TEXAS TO ANY SHERIFF, CONSTABLE, OR ANY OTHER PERSON AUTHORIZED TO SERVE SUBPOENAS UNDER RULE 176 T.R.C.P.

GREETINGS:

YOU ARE HEREBY COMMANDED TO SUBPOENA AND SUMMON the following witnesses:

Custodian of Records for Capital One, N.A. Attn: 12070-7000 15000 Capital One Drive Richmond, VA 2323 8

to be and appear before a Notary Public of my designation for Records & Review 190 County Road 4204 Jacksonville, TX 75766 on the forthwith day instanter at the office ofthe custodian or other agreed upon time and/or place and there to make answers under oath of certain written questions to be propounded to the custodian ofrecords. The witness is to bring and produce for inspection and photocopying THE FOLLOWING BANKING DOCUMENTS BEGINNING DECEMBER 1, 2008 THROUGH SEPTEMBER 30, 2009 including, BUT NOT LIMITED TO: 1) Copies of all signature cards, deposit-boxrental agreements, deposit-box entry :records, loan records, lines of credit, and records of assets in safekeeping in the name of Gary Lynn McShan and Vivian Elaine McShan; and 2) Copies of all monthly bank statements, including deposit records, withdrawal records, transfer records, and digital images of cancelled checks for all checking accounts, savings accounts, certificates of deposit, and any other types of accounts maintained in the name of Gary Lynn McShan and Vivian Elaine McShan, on which Gary Lynn McShan and Vivian Elaine McShan had or has the right to withdraw for the period from December 1, 2008 through September 30,2009.

and anything else reduced to writing in the possession, custody or control ofthe said witness pertaining to:

GARY LYNN MCSHAN and/or VIVIAN ELAINE MCSHAN, I and/or ACCOUNT NUMBERS: -

---

This Subpoena is being issued at the instance of the Plaintiff in that certain Cause No. 87-11874 in the 81" Judicial District Court of Anderson County, Texas. IN THE MATTER OF THE MARRIAGE OF VMAN ELAINE MCSHAN AND GARY LYNN MCSHAN and there remain from day to day and time to time until discharged by me according to Jaw. This subpoena is issued in accordance to Rule 176, T.R.C.P., and falls under exception to confidentiality, Rule 509(e)(4). Rule 176.8(a) Contempt: Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed in contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punishable by fine or confinement, orboth. ~

Witness my hand, this the ---l\'-=0::;,__-_ day of b~ '2014. Reply to: Records &: Review, 190 County Road 4204 Jacksonville, TX 75766 (903) 586-2182 (903) 586-5901 FAX

Attorney requesting subpoena: C. MICHAEL DAVIS LAW OFFICES OF JIM PARSONS

FilED FOR RECORD CAUSE NO. 87-11874 At== ·=·=o~cloc~ IN THE DISTRICT C§E~TSOZD

14

IN THE MATTER OF § THE MARRIAGE OF § § JANICE STAPLES VMANELAINEMCSHAN § ANDERSON C~~.~nty.TX AND § blf----~---- Dep. GARYLYNNMCSHAN § 87th JUDICIAL DISTRICT

NOTICE OF INTENTION TO TAKE DEPOSITION BY WRITTEN QUESTIONS

TO: Sheila Smith, ATTORNEY-AT-LAW, PO Box 10, Frankston, TX 75763.

PLEASE TAKE NOTICE that after twenty-four (24) days from the service of a copy hereof, and of the attached questions, a deposition by written questions will be taken of the CUSTODIAN(S) OF RECORDS FOR:

Capital One, N.A., Attn: 12070-7000, 15000 Capital One Drive, Richmond, VA 23238

before a Notaty Public or an authorized officer for RECORDS & REVIEW, 190 County Road 4204, Jacksonville, TX, 75766. Which deposition with attached questions may be used in evidence upon the trial of the above-styled and numbered cause pending in the above-named court.

Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce for inspection and photocopying THE FOLLOWING BANKING DOCUMENTS BEGINNING DECEMBER 1. 2008 THROUGH SEPTEMBER 30, 2009 including, BUT NOT LIMITED TO:

I) Copies of all signature cards, deposit-box rental agreements, deposit-box entry records, loan records, lines of credit, and records of assets in safekeeping in the name of Gary Lynn McShan and Vivian Elaine McShan; and

2) Copies of all monthly bank statements, including deposit records, withdrawal records, transfer records, and digital images of cancelled checks for all checking accounts, savings accounts, certificates of deposit, and any other types of accounts maintained in the name of Gary Lynn McShan and Vivian Elaine McShan, on which Gary Lynn McShan and Vivian Elaine McShan had or has the right to withdraw for the period from December 1, 2008 through September 30, 2009.

and anything else reduced to writing in the possession, custody or control of the said witness pertaining to:

GARY LYNN MCSHAN and/or VIVIAN ELAINE MCSHAN, ACCOUNT NUMBERS:

and/or 1

and turn all such records over to the Notary Public authorized to take this deposition for inspection and photocopying of the same may be made and attached to said deposition.

Respectfully submitted, C. MICHAEL DAVIS LAW OFFICES OF JIM PARSONS ATTORNEYSFORPL~F STATE BARNO. 24056956

I certizy that a true and correct copy of the foregoing Notice oflnt n n to Take Deposition by Written Questions has been delivered to the individuals listed below, by certified ail, aid, hand delivered or by telephonic document transfer, on this the 4th day of September, 2014.

cc: Sheila Smith

CAUSENO. 87-11874 IN THE MATTER OF § IN THE DISTRICT COURT OF THE MARRIAGE OF § § VNIAN ELAINE MCSHAN § ANDERSON COUNTY, TEXAS AND § GARY LYNN MCSHAN § 8~ mDICIAL DISTRICT

DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS, CUSTODIAN OF RECORDS FOR:

CAPITAL ONE, N.A.

1. Please state your full name, occupation, and official title.

Answ~: ----------------------------------------------------------------------------

2. Are you the custodian of the records for CAPITAL ONE, N.A. or do you have authority to release these records?

Answ~: --------------------------------------------------------------------------

3. Are you among those who have possession, custody, control of or access to records (Beginning December 1, 2008 through September 30, 2009) pertaining to THE ITEMS SPECIFIED ON THE NOTICE concerning GARY LYNN MCSHAN and/or VIVIAN ELAINE MCSHAN? Answ~:

------------------------------------------------------------------------------------

4. Are the aforementioned records kept in the regular course ofbusiness of your employer?

Answ~:

------------------------------------------------------------------------------------

5. Was it in the regular course ofbusiness of CAPITAL ONE, N.A. for a person with. personal knowledge of the act, · event, condition or opinion recorded to make the record or to transmit information thereof to be included in such record? Answ~:

----------------------------------------------------------------------------------------------

6. Please state whether these records were made at the time or shortly after the time ofthe transaction or service recorded. Answer:

---------------------------------------------------------------------------~--------

7. Have you received a subpoena duces tecum (including this one) for records (Beginning December 1, 2008 through September 30, 2009) pertaining to THE ITEMS SPECIFIED ON THE NOTICE concerning GARY LYNN MCSHAN and/or VIVIAN ELAINE MCSHAN?

Answ~: -----------------------------------------------------------------------------

8. Please release exact duplicates of the records as requested on the deposition subpoena, or the originals thereof, for photoc:opying for attachment to this deposition. Have you done as requested? If not, why not?

Answ~: -------------------------------------------------------------~-------------

WITNESS (Custodian ofRecords)

Swam to and subscribed before me on the _ _ _ day of _ _ _ _ _ _ _ _ _ _ _, 2014.

Notary Public In and for The State of _ _ _ _ __

My Commission Expires:.________________

INSTRUCTI FOR COMPLETING RE EST

IF THERE ARE LEGALS WITH THIS REQUEST DO NOT USE WHITE OUT TO CORRECT ANY ERRORS. See #4.

1. IF the TOTAL COST OF PROCESSING this request exceeds $75.00, please call our office BEFORE processing them for attorney approvaL

2. IF the request includes any legal documents, the legal documents are to be completed by the Custodian. PLEASE PRINT YOUR NAME CLEARLY.

3. Please READ and ANSWER each question, and SIGN on the Witness/Affiant line. Your signature must be notarized. The NOTARY must SIGN on the notary line as well as provide the notary SEAL to the LEFT of the signature.

4. WHITE OUT IS NOT allowed on legal documents. It renders the document inadmissible in court. If you happen to make a mistake on the legals, please call and we will send you another one, or we can assist you in making a correction.

PLEASE MAIL TO RECORDS & REVIE 190 County Road 4204 Jacksonville, TX 75766 Phone: (903) 586-2182 Fax: (903) 586-5901

DEPOSITION SUBPOENA DUCES TECUM THE STATE OF TEXAS TO ANY SHERIFF, CONSTABLE, OR ANY OTHER PERSON AUTHORIZED TO SERVE SUBPOENAS UNDERRULE 176 T.R.C.P.

GREETINGS:

YOU ARE HEREBY COMMANDED TO SUBPOENA AND SUMM:ON the following witnesses:

Registered Agent for Navasota Oilfield Services Inc. Custodian of Employment Records for Felix W. Covington Navasota Oilfield Services, Inc. 6109FM390N 5808 FM 3455 Brenham, TX 77833 Navasota, TX 77868

to be and appear before a Notary Public of my designation for

Records & Review 190 County Road 4204 Jack.sonville, TX 75766

on the forthwith day instanter at the office of the custodian or other agreed upon time and/or place and there to make answers under oath of certain written questions to be propounded to the custodian of records. The witness is to bring and produce for inspection and photocopyingANY AND ALL EMPLOYMENT RECORDS: including, BUT NOT LIMITED TO: Pre- employment records, PAYROLL RECORDS, personnel records, applications for employment, any photographs (color if available), disciplinary records, evaluationrecords, supervisor reports, W-2' s, employment contracts, independent contractor agreements, appointment logs, appointment books, WAGE RECORDS, time cards, claim file, disability applications, worker's compensation records, all group health insurance records, medical files, attendance records, office notes (handwritten or typed), any correspondence from other employers or attorneys, and anything else reduced to 'Writing in the possession, custody or control of the said witness pertaining to;

JEREMY TRENT CUNNINGHAM; DOB: This Subpoena. is being issued at the instance of the attorney for Stacie Lauren Cole, in that certain Cause No. 2014-217-DR; on the docket of the 307rH Judicial District Court of Gregg County, Texas, styled

IN THE INTEREST OF COLE CLARK CUNNINGHAM, A Child and there remain from day to day and time to time until discharged by me according to law. This subpoena is issued in accordance to Rule 176, T.R.C.P.. and falls under exception to confidentiality, Rule 509(e)(4). Rule 176.8(a) Contempt: Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed in contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punishable by fine or confinement,

orboth. Witnessmyhand,thisthe \\.-\S- dayof !.~~, ~~ ':' ,2014.

Reply to: Records & Review 190 County Road 4204 Jacksonville, "TX 75766 (903) 586-2182 (903) 586-5901 FAX

Attorney requesting subpoena: RAYMOND E. "BO" ROGERS, JR ATTORNEYATLAW

CAUSE NO. 2014-217-DR

In the Interest of § IN THE DISTRICT COURT § COLECLARKC~GHAM § OF GREGG COUNTY, TEXAS § A Child § 307TH JUDICIAL DISTRICT

NOTICE OF INTENTION TO TAKE DEPOSITION BY WRITTEN QUESTIONS TO: Robert R. Foster, ATTORNEY AT LAW, 227 E. Tyler St., Longview, TX 75601

PLEASE TAKE NOTICE that after twenty (20) days from the service of a copy hereof, and of the attached questions, a deposition by written questions will be taken of the CUSTODIAN(S) OF EMPLOYMENT RECORDS FOR:

Felix W. Covington, 6109 FM 390 N, Brenham, TX 77833, Registered Agent for Navasota Oilfield Services, Inc., 5808 FM 3455, Navasota, TX 77868

before a Notary Public or an authorized officer for RECORDS & REVIEW, 190 County Road 4204, Jacksonville, TX, 75766. Which deposition with attached questions maybe used in evidence upon the trial of the above-styled and numbered cause pending in the above-named court.

Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce for inspection and photocopying ANY AND ALL EMPLOYMENT RECORDS: including, BUT NOT LIMITED TO: Pre-employment records, PAYROLL RECORDS, personnel records, applications for employment, any photographs (color if available), disciplinary records, evaluation records, supervisor reports, W-2's, employment contracts, independent contractor agreements, appointment logs, appointment books, WAGE RECORDS, time cards, claim file, disability applications, worker's compensation records, all group health insurance records, medical files, attendance records, office notes (handwritten or typed), any correspondence from other employers or attorneys, and anything else reduced to writing in the possession, custody or control of the said witness pertaining to:

JEREMY TRENT CUNNINGHAM; DOB: :. and turn all such records over to the Notary Public authorized to take this deposition for inspection and photocopying of the same may be made and attached to said deposition.

Respectfully submitted,

RAYMOND E. "Bo" ROGERS, JR. ATTORNEY AT LAW ATTORNEY FOR Stacie Lauren Cole STATE BAR NO. 24010358

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing Notice of Intention to Take Deposition by Written Questions has been delivered to the individuals listed below, by certifi ail, po ge epaid, hand delivered or by telephonic document transfer, on this the21"1 day of August, 2014.

cc: Robert R. Foster

CAUSE NO. 2014-217-DR

In the Interest of § IN THE DISTRJCT COURT § COLECLARKC~GHAM § OF GREGG COUNTY, TEXAS § A Child § 307TH JUDICIAL DISTRJCT

DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS, CUSTODIAN OF EMPLOYMENT RECORDS FOR:

NAVASOTA OILFIELD SERVICES, INC.

1. Please state your full name, and official title.

Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

2. Are you the custodian of the employment records ofNAVASOTA OILFIELD SERVICES, INC. or do you have authority to release these records? Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

3. Are you among those who have possession, custody, control of or access to any & all employment records pertaining to JEREMY CUNNINGHAM?

Answ~=--------------------------------

4. Are the aforementioned records kept in the regular course of business of your employer?

Answer:

----------------------------------

5. Was it in the regular course ofbusiness ofNAVASOTA OILFIELD SERVICES, INC. for a person with personallmowledge of the act, event, condition or opinion recorded to make the record or to transmit information thereof to be included in such record? Answ~=----------------------------------

6. Please state whether these records were made at the time of shortly after the time of the transaction or service recorded. Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

7. Have you received a subpoena duces tecum for any & all employment records pertaining to JEREMY CUNNINGHAM? Answer:

---------------------------------

8. Please release exact duplicates of the records as requested on the deposition subpoena, or the originals thereof, for photocopying for attachment tothis deposition. Have you done as requested? If not, why not? Answ~=----------------------------------

WITNESS (Custodian ofRecords)

Sworn to and subscribed before me on the _ _ _ day of _ _ _ _ _ _ _ _ _ _ ___, 2014.

Notary Public In and for The State of _ _ __

My Commission Expires:_ _ _ _ _ _ _ __

INSTRUCTI FOR COMPLETING RE EST

IF THERE ARE LEGALS WITH THIS REQUEST DO NOT USE WHITE -OUT TO CORRECT ANY ERRORS. See #4.

1. IF the TOTAL COST OF PROCESSING this request exceeds $75.00, please call our office BEFOR processing.them for attorney approvaL

2. IF the request includes any legal documents, the legal documents are to be completed by the Custodian. PLEASE PRINT YOUR NAME CLEARLY.

3. Please READ and .ANSWER each question, and SIGN on the Witness/Affiant line. Your si nature m · ed. The NOTARY must SIGN on the notary line as well as provide the notary SEAL to the LEFT of the signature.

4. WHITE OUT IS NOT allowed on legal documents.. renders the document inadmissible in court. If you happen to make a mistake on the legals, please call and we will send you another one, or we can assist you in making a correction .

.PLEASE.MAIL TO. RE·CORDS & REVIE 190 County Road 4.204 Jacksonville, TX 75766 P.hone: (903) 586-2182 ·Fax·: (903) 5·86-5901

DEPOSITION SUBPOENA DUCES TECUM THE STATE OF TEXAS TO ANY SHERIFF, CONSTABLE, OR ANY OTiffiRPERSON AUTHORIZED TO SERVE SUBPOENAS UNDER RULE 176 T.R.C.P.

GREETINGS:

YOU ARE HEREBY COMMANDED TO SUBPOENA AND SUMMON the following witnesses:

Custodian of Billing for Cano Health & Rehab 1528 S Buckner Blvd, Dallas, TX 75217

to be and appear before a Notary Public of my designation for

Records & Review 190 County Road 4204 Jacksonville, TX 75766

on the forthwith day instanter at the office ofthe custodian or other agreed upon time and/or place and there to make answers under oath of certain written questions to be propounded to the custodian of records. The witness is to bring and produce for inspection and photocopying THE FOLLOWING BILLING BEGINNING 03/19111 TO PRESENT including, BUT NOT LIMITED TO: itemized billing statements, all billing reflecting reductions or discounts made by Karla Castro's healthcare providers pursuant to agreements with Medicare, Medicaid or any health insurance provider for the period March 19, 2011 to date, and anything else reduced to writing in the possession, custody or control of the said witness pertaining to:

KARLA P. ·CASTRO; DOB: --

This Subpoena is being issued at the instance of the Defendant in that certain Cause No. 84441-86 in the 86th Judicial District Court of Kaufman County, TX, styled

ELENA GONZALEZ and KARLA P. CASTRO VS. EVERARDO E. NUNEZ

and there remain from day to day and time to time until discharged by me according to law. This subpoena is issued in accordance to Rule 176. T.R.C.P., and falls under exception to confidentiality, Rule 509(e){4). Rule 176.8(a) Contempt: Failure by any person without adeguate excuse to obey a subpoena served upon that person may be deemed in contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punishable by fine or confinement, or both.

Reply to: Records & Review 190 County Road 4204 Jacksonville, TX 75766 (903) 586-2182 (903) 586-5901 FAX.

Attorney requesting subpoena: PETER J. RUTTER RUTTER LAW FIRM

CAUSE NO. 84441-86

ELENA GONZALEZ and KARLA P. CASTRO § § vs. § § EVERARDO E. NUNEZ § :::;1 -n NOTICE OF INTENTION TO TAKE ~

01

DEPOSITION BY WRITTEN QUESTIONS ~ 0

TO: Maria Orozco-Smith, BEN ABBOTT, PC, 1934 Pendleton Dr., Garland, TX 75041

PLEASE TAKE NOTICE that after twenty (20) days from the service of a copy hereof: and of the attached questions, a deposition by written questions will be taken of the CUSTODIAN(S) OF BILLING FOR:

Cano Health & Rehab, 1528 S Buclmer Blvd,, Dallas, TX 75217 Radiologies Radiology Imaging ConsUlting, P.O. Box 177128, Irving, TX750 17-7128

before a Notazy Public or an authorized officer for RECORDS & REV])l:W, 190 County Road 4204, Jacksonville, TX, 75766. Which deposition with attached questions may be used in evidence upon the trial of the above-styled and numbered cause pending in the above-named court.

Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer auilhorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce for inspection and photocopying THE FOLLOWING BILLING BEGINNING 03119111 TO PRESENT including, BUT NOT LIMITED TO: itemized billing statements, all billing reflecting reductions or discounts made by Karla Castro's healthcare providers pursuant to agreements with Medicare, Medicaid or any health insurance provider for the period March 19, 2011 to date, and anything else reduced to 'Writing in the possession, custody or control of the said witness pertaining to:

KARLA P. CASTRO; DOB:

and turn all such records over to the Notazy Public authorized to take this deposition for inspection and photocopying of the same may be made and attached to said deposition.

Respectfully submitted, Peter J. Rutter RUTTER LAW FIRM, P.C. ATTORNEYSFORDEFENDANT STATE BARNO. 00791586

CERTIFICATE OF SERVICE I certify that a tnie and correct copy of the foregoing Notice of Intention to Take Deposition by Written Questions has been delivered to the individuals listed below, by certified mail, postage prepaid, hand delivered or by telephonic documentltransfer, on this the 10m day ofJuly, 2014.

cc: Maria Orozco-Smith

CAUSE NO. 84441-86

ELENA GONZALEZ and KARLA P. CASTRO § IN THE DISTRICT COURT § vs. § OF KAUFMAN COUNTY, TEXAS § EVERARDO E. NUNEZ § 86m JUDICIAL DISTRICT

DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS, CUSTODIAN OF BILLING FOR:

CANO HEALTH & REHAB

1. Please state your full name, occupation, and official title.

Answer:

--------------------------------------------------------------

2. lrre you the custodian of the billing of CANO HEALTH & REHAB or do you have authority to release these records? . Answer:______________________________________________

3. .Are you among those who have possession, ctistody, control of or access to billing (BEGINNING 03119/11 TO PRESENT) pertaining to KARLA CASTRO?

Pmswer:

-----------------------------------------------------

4. .Prre the aforementioned records kept in the regular course ofbusiness of your employer?

.Pmswer:.__________________________________________________________

5. Was it in the regular course ofbusiness ofCANO HEALTH & REHAB for a person with personal knowledge of the act, event, condition or opinion recorded to make the record or to transmit information thereof to be included in such record? Answer:________________________________________________

6. Please state whether these records were made at the time or shortly after the time of the transaction or service recorded. Answer:

-----------------------------------------------------------

7. Have you received a subpoena duces tecum (including this one) for the billing (BEGINNING 03119111 TO PRESENT) pertaining to KARLA CASTRO? . Answer:__________________________________________________________

8. Please release exact duplicates of the records as requested on the deposition subpoena, or the originals thereof, for photocopying for attachment to this deposition. Have you done as requested? If not, why not? Answer:___________________________________________________

9. Have any of the charges in questions been paid?

Answer:____________________________________________________

10. If any such charges have been paid, please state the following:

a. Who paid the charges; a n d - - - - - - - - - - - - - - - - - - - - - - -

b. The amount paid by each such person or entity making any such payment of the charge. _ _ __

11. Has any portion of the charges been adjusted down?

~wer. __________________________________________

12. If any of the charges have been adjusted down, please state the amount of the adjus1ment.

Answer:____________________________________________________

13. Has any portion of the charges been written off?

~wer: _____________________________________________________

14. If any of the charges have been written off, state the amount vvritten off.

Answer: ___________________________________________

15. "\\~"hat is the current balance of the charges?

Answer:________________________________________

WITNESS (Custodian ofBilling)

Sworn to and subscnbed before me on the ______ day of _ _ _ _ _ _ _ _ _ _ _ ___, 2014.

Notary Public In and for The State of - - - - - - - -

My Commission Expires:

Direct Questions 2

Texas Administrative Code TITLE22 EXAMINING BOARDS PART9 TEXAS MEDICAL BOARD CHAPTER165 MEDICAL RECORDS RULE §165.2 Medical Record Release and Charges (a) Release of Records Pursuant to Written Request. As required by the Medical Practice Act, §159.006, a physician shall furnish copies of medical and/or billing records requested or a summary or narrative of the records pursuant to a written release of the information as provided by the Medical Practice Act, § 159.005, except if the physician determines that access to the information would be harmful to the physical, mental, or emotional health of the patient. The physician may delete confidential information about another patient or family member of the patient who has not consented to the release. If requested, the physician shall provide the requested records in electronic format, if such records are readily producible. If the requested records are not readily producible in a readable electronic format, the records shall be produced in a format as agreed to by the physician and the requestor. If by the nature of the physician's practice, the physician transmits health information in electronic form, the physician may be subject to the Health Insurance Portability and Accountability Act (HIPAA) 45 C.F.R. Parts 160-164. Unless otherwise provided under HIPAA, physicians subject to HIPAA must permit the patient or an authorized representative access to inspect medical and/or billing records and may not provide summaries in lieu of actual copies unless the patient authorizes the summary and related charges.

,...(b) Deadline for Release of Records. The requested copies of medical and/or billing ~ records or a summary or narrative of the records shall be furnished by the physician within 15 business days after the date of receipt of the request and reasonable fees for ~urnishing the information. ~

(c) Denial of Requests for Records. If the physician denies the request for copies of medical and/or billing records or a summary or narrative of the records, either in whole or in part, the physician shall furnish the patient a written statement, signed and dated, within 15 business days of receipt of the request stating the reason for the denial and how the patient can file a complaint with the federal Department of Health and Human Services (if the physician is subject to IDPAA) and the Texas Medical Board. A copy of the statement denying the request shall be placed in the patient's medical and/or billing records as appropriate.

(d) Contents of Records. For purposes of this section, "medical records" shall include those records as defined in §165.1(a) of this title (relating to Medical Records) and shall include copies of medical records of other health care practitioners contained in the records of the physician to whom a request for release of records has been made.

(e) Allowable Charges.

(1) Paper Format. (A) The physician responding to a request for such information in paper format shall be entitled to receive a reasonable, cost-based fee for providing the requested information. (B) A reasonable fee for providing the requested records in paper format shall be a charge of no more than $25 for the first twenty pages and $.50 per page for every copy thereafter.

(2) Electronic Format. (A) The physician responding to a request for such information to be provided in electronic format shall be entitled to receive a reasonable, cost-based fee for providing the requested information in electronic format. (B) A reasonable fee for providing the requested records in electronic format shall be a charge of no more than: $25 for 500 pages or less; $50 for more than 500 pages.

(3) Hybrid Records Format. (A) The physician responding to a request for such information that is contained partially in electronic format and partially in paper format ("hybrid"), may provide the requested information in a hybrid format and shall be entitled to receive a reasonable, cost based fee for providing the requested information. (B) A reasonable fee for providing the requested records in a hybrid format may be a combination of the fees as set forth in paragraphs (1) and

(2) of this subsection.

(4) Other Charges. (A) If an affidavit is requested, certifying that the information is a true and correct copy of the records, whether in paper, electronic or hybrid format, a reasonable fee of up to $15 may be charged for executing the affidavit. (B) A physician may charge separate fees for medical and billing records requested. (C) Allowable charges for copies of diagnostic imaging studies are set forth in § 165.3 of this title (relating to Patient Access to Diagnostic Imaging Studies in Physician's Office) and are separate from the charges set forth in this section.

(5) A reasonable fee for records provided in a paper, electronic or hybrid format may not include costs associated with searching for and retrieving the requested information, and shall include only the cost of: (A) copying and labor, including, compiling, extracting, scanning, burning onto media, and distributing media; (B) cost of supplies for creating the paper copy or electronic media (if the individual requests portable media) that are not prohibited by federal law; (C) postage, when the individual has requested the copy or summary be mailed; and (D) preparing a summary of the records when appropriate.

(f) Emergency Requests. The physician providing copies of requested medical and/or billing records or a summary or a narrative of such records shall be entitled to payment of a reasonable fee prior to release of the information unless the information is requested by a licensed Texas health care provider or a physician licensed by any state, territory, or insular possession of the United States or any State or province of Canada if requested for purposes of emergency or acute medical care.

(g) Non-emergent Requests. In the event the physician receives a proper request for copies of medical and/or billing records or a summary or narrative of the records for purposes other than for emergency or acute medical care, the physician may retain the requested information until payment is received. If payment is not routed with such a request, within ten calendar days from receiving a request for the release of such records, the physician shall notify the requesting party in writing of the need for payment and may withhold the information until payment of a reasonable fee is received. A copy of the letter regarding the need for payment shall be made part of the patient's medical and/or billing record as appropriate.

(h) Improper Wi11:hholding for Past Due Accounts. Medical and/or billing records requested pursuant to a proper request for release may not be withheld from the patient, the patient's authorized agent, or the patient's designated recipient for such records based on a past due account for medical care or treatment previously rendered to the patient.

(i) Subpoena Not Required. A subpoena shall not be required for the release of medical and/or billing records requested pursuant to a proper release for records under this section and the Medical Practice Act, § 159.006, made by a patient or by the patient's guardian or other representative du1y authorized to obtain such records.

G) Billing Record Requests. In response to a proper request for release of medical records, a physician shall not be required to provide copies of billing records pertaining to medical treatment of a patient unless specifically requested pursuant to the request for release of medical records.

(k) Prohibited Fees for Records Released Related to Disability Claims. The allowable charges as set forth in this chapter shall be maximum amounts, and this chapter shall be construed and applied so as to be consistent with lower fees or the prohibition or absence of such fees as required by state statute or prevailing federal law. In particular, under §161.202 of the Texas Health and Safety Code, a physician may not charge a fee for a medical or mental health record requested by a patient, former patient or authorized representative of the patient if the request is related to a benefits or assistance claim based on the patient's disability.

(1) Applicable Federal Law. Whenever federal law or applicable federal regulations affecting the release of patient information are inconsistent with provisions of this section, the provisions of federal law or federal regulations shall be controlling, unless the state law is more restrictive/stringent. Physicians are responsible for ensuring that they are in compliance with federal law and regulations including the Health Insurance Portability and Accountability Act (HlP AA) 45 C.F.R. Parts 160-164.

Source Note: The provisions of this § 165.2 adopted to be effective December 29, 1997, 22 TexReg 12490; amended to be effective May 21,2000,25 TexReg4349; amended to be effective November 19, 2000,25 TexReg 11282; amended to be effective September 19, 2002, 27 TexReg 8769; amended to be effective March 4, 2004, 29 TexReg 1946; amended to be effective January 20, 2014,39 TexReg 273

INS.TRUCTI FOR COMPLETING RE UEST

IF THERE ARE LEGALS WITH THIS REQUEST DO NOT USE WHITE OUT TO CORRECT ANY ERRORS. See #4.

II~

1. IF the TOTAL COST OF PROCESSING this request exceeds $75.00, please call our office BEFO processing. them for attorney approvaL

2. IF the request includes any legal documents, the legal documents are to be completed by the Custodian. PLEASE PRINT YOUR NAME CLEARLY.

3. Please READ and .ANSWER each question, and SIGN on the.

Witness/Affiant line. Your si nature must be n . The NOTARY must SIGN on the notary line as well as provide the notary SEAL to the LEFT of the signature.

4. WHITE OUT IS NOT allowed on legal documents.. It renders the document inadmissible in court. If you happen to make a mistake on the legals, please call and we will send you another one, or we can assist you in making a correction .

.PLEASE.MAIL TO. RE:CORDS & REVIE 190 County Road 4.204 Jac·ksonville, TX 75766 P.hone: (903) 586-2182 Fax·: (903) 5·86-5901

DEPOSITION SUBPOENA DUCES TECUM THE STATE OF TEXAS TO ANY SHERIFF, CONSTABLE, OR ANY OTHER PERSON AUTHORIZED TO SERVE SUBPOENAS UNDERRULE 176 T.R.C.P.

GREETINGS:

YOU ARE HEREBY COMiviANDED TO SUBPOENA AND SU1v1M:ON the following witnesses:

Custodian of Pharmacy Records for City Drug Store 104 East Belknap St Jacksboro, 1J{ 76458

to be and appear before a Notal)' Public of my designation for

Records & Review 190 County Road 4204 Jacksonville, TX 75766

on the forthwith day instanter at the office of the custodian or other agreed upon time and/or place and there to make answers under oath of certain written questions to be propounded to the custodian of records. The witness is to bring and produce for inspection and photocopying,ANYAND ALL MEDICAL RECORDS including,BUTNOTLllVIITED TO: Patient information sheet, medical file, medical records, any photographs (color if available), chiropractic records, physical therapy records, phannacyrecords, insurance treatment notes, insurance records, psychiatric records, counseling notes, prescriptions, x-ray films, radiology reports, lab reports, narrative reports, rehabilitation notes, office notes (handwritten or typed), any correspondence from other doctors or attorneys, and anything else reduced to writing in the possession, custody or control of the said witness pertaining to:

KATHY GARNER; DOB: U - -- --"

This Subpoena is being issued at the instance of the Defendant in that certain Cause No. 2013-60253-3 93 in the 3 93n1 Judicial District Court of Denton County, Texas, styled

KATHY GARNER VS. MARTHA TORRES SANTAMARIA

and there remain :from day to day and time to time until discharged by me according to law. This subpoena is issued in accordance to Rule 176, T.R.C.P., and falls under exception to confidentiality, Rule 509(e)(4). Rule 176.8(a) Contempt: Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed in contempt of the court from which the subpoena is

:::::~:::·mv~oh fu:::::~ m~ ~ punmhahlo fi•: :o::fi•~m ., hofu. by

~ Reply to: Records & Review 190 County Road 4204 Jacksonville, TX 75766 (903) 586-2182/ (903) 586-5901 FAX

Attorney requesting subpoena: J. CHAD PARKER THE PARKER FIRM

CAUSE NO. 2013-60253-393

KATHY GARNER § IN THE DISTRICT COURT OF § vs. § DENTON COUNTY, TEXAS § MARTHA TORRES SANTAMARIA § 393RD JUDICIAL DISTRICT

NOTICE OF INTENTION TO TAKE DEPOSITION BY WRITTEN QUESTIONS TO: Lon L. Garner, THE GARNER FIRM, P.C., 1600 1st Avenue, McKinney, TX 75069

PLEASE 'fAKE NO'fiCE that after twenty (20) days from the service of a copy hereof, and of the attached questions, a deposition by written questions will be taken of the CUSTODIAN(S) OF MEDICAL RECORDS FOR:

Dr. Kevin James and/or Advanced Spine & Orthopedics, 2813 W. Southlake Blvd., Suite 100, Southlake, TX 76092 Jack County Medical Clinic, 717 Magnolia, Jacksboro, TX 76458 Dr. Syed Jamal, 709 N 4th St, Jacksboro, TX 76458 City Drug Store, 104 East Belknap St., Jacksboro, TX 76458

before a Notary Public or an authorized officer for RECORDS & REVIEW, 190 County Road 4204, Jacksonville, TX, 75766 . Which deposition with attached questions may be used in evidence upon the trial of the above-styled and numbered cause pending in the above-named court.

Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce for inspection and photocopying ANY AND ALL MEDICAL RECORDS including, BUT NOT LIMITED TO:· Patient information sheet, medical file, medical records, any photographs (color if available), chiropractic records, physical therapy records, pharmacy records, insurance treatment notes, insurance records, psychiatric records, counseling notes, prescriptions, x-ray films, radiology reports, lab reports, narrative reports, rehabilitation notes, office notes (handwritten or typed), any correspondence from other doctors or attorneys, and anything else reduced to writing in the possession, custody or control of the said witness pertaining to:

KATHY GARNER; DOB: and turn all such records over to the Notary Public authorized to take this deposition for inspection and photocopying of the same may be made and attached to said deposition.

Respectfully submitted, J. CHAD PARKER THE PARKER FIRM ATTORNEYS FOR DEFENDANT STATE BARNO. 00786153

CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Notice oflntention to Take Deposition by Written Questions has been delivered to the individuals listed below, by certified mail, postage prepaid, hand delivered or by telephonic document transfer, on this the l71h day ofJune, 2014.

cc: Lon L. Garner

CAUSE NO. 2013-60253-393

KATHY GARNER § IN THE DISTRICT COURT OF § vs. § DENTON COUNTY, TEXAS § MARTHA TORRES SANTAMARIA § 393RD JUDICIAL DISTRICT

DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS, CUSTODIAN OF PHARMACY RECORDS FOR:

CITY DRUG STORE I. Please state your full name, occupation, and official title.

Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

2. Are you the custodian of the pharmacy records of CITY DRUG STORE or do you have authority to release these records? Answ~=------------------------------------

3. Are you among those who have possession, custody, control of or access to all phannacy records pertaining to KATHY GARNER? Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

4. Are the aforementioned records kept in the regular course ofbusiness of your employer?

Answer:_______________________________________

5. Was it in the regular course of business of CITY DRUG STORE for a person with personal knowledge of the act, event, condition or opinion recorded to make the record or to transmit information thereof to be included in such record? .A:nsw~=---------------------------------------

6. Please state whether these records were made at the time or shortly after the time of the transaction or service recorded. Answer._______________________________________

7. Have you received a subpoena duces tecum (including this one) for records pertaining to KATHY GARNER? .A:nsw~=-------------------------------------------------------

8. Please release exact duplicates of the records as requested on the deposition subpoena, or the originals thereof, for photocopying for attachment to this deposition. Have you done as requested? If not, why not? Answer:_________________________________________

WITNESS (Custodian ofRecords)

Sworn to and subscribed before me on the _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ _, 2014.

Notary Public In and for The State of _ _ _ __

My Commission Expires:_ _ _ _ _ _ _ __

INS.TRUCTI FOR COMPLETING RE EST

IF T.HERE ARE LEGALS WITH THIS REQUEST DO NOT USE WHITE OUT TO CORRECT ANY ERRORS. See #4.

1. IF the TOTAL COST OF PROCESSING this request exceeds $75.00, please call our office BEFORE processing. them for attorney approvar. ·

2. IF the request includes any legal documents, the legal documents are to be completed by the Custodian. PLEASE PRINT YOUR NAME CLEARLY.

3. Please READ and .ANSWER each question, and SIGN on the.

Witness/Affiant line. Your si nature notarized. The NOTARY must SIGN on the notary line as well as provide the notary SEAL to the LEFT of the signature.

4. ·wHITE OUT IS NOT allowed on legal documents.. It renders the document inadmissible in court. If you happen to make a mistake on the legals, please call and we will send you another one, or we can assist you in making a correction .

.PLEASE.MAIL TO. RE:CQRDS & REVIE 190 County Road 4.204 Jacksonville, TX 75766 P.hone: (903) 586-2182 ·Fax·: (903) 5·86-5901

DEPOSITION SUBPOENA DUCES TECUM THE STATE OF TEXAS TO ANY SHERIFF, CONSTABLE, OR ANY OTHER PERSON AUTHORIZED TO SERVE SUBPOENAS UNDER RULE 176 T.R.C.P.

GREETINGS:

YOU ARE HEREBY C011MANDED TO SUBPOENA AND SUJ\1MON the following witnesses:

REGISTERED AGENT Custodian of Records for Corporation Service Company Penske Truck Leasing Company 211 East 7th St., Suite 620 PO Box 802577 Austin, TX 78701 Chicago, IT.- 60680

to be and appear before a Notary Public of my designation for

Records & Review 190 County Road 4204 Jacksonville, TX 75766

on the forthwith day instanter .at the o:ffice·of the custodian or other agreed upon time and/or place and there to make answers under oath of c~rtam written questions to be propounded to the custodian of records. The ·witness is to answer the attached Direct"Questions and as they re]a!e to Exhibit "A" attached hereto and made a part hereof pertaining to:

IJABARBA BROTHERS, LTD. dba SPRING VLY CARTAGE I JIMMY LABARBA

This Subpoex.a is being issued at the instance of the Defendant in that certain Cause No. 12-0461 in the 71 ST Judicial District Court ofHarrison County, Texas, styled

LEON CHANDLER VS. SPRING VALLEY CARTAGE, et. al.

Reply to:

Records &: Review 190 County Road 4204 Jacksonville, TX 75766 Notary Public in and For the State of Texas (903) 586-2182 I (903) 586-5901 FAX

Attorney requesting subpoena: ~,,,~~"~'/!,,, PAM MILLER ::;~~~(~ f~·· ....\'o; Notary Public, State of Texas CLAY WIDTE/AMY MILLS ~u;:., /~"§ My Commission Expires ~Jtfc,;<,-~7/ February 23, 2017 WHITE SHAVERLAW FIRM 1111n 5EP-05-c013(THU) "A'' Invoice 0002S38455 P. 003/004

[~ AugUGt 3J, 2011

Lease lnvoice Pnga: Cll310mdr:

1 or:3 gjg/1 li56811 01·S:G13 llGIDOOID Af':t1~t111ll:11 NIIINNNNI:rD1 D00311:1DO!I2 LAI3AFI!liA SRO'rHEAS l.iO OaA, L.ABA!iiBA.BROTHE~ LTD DBA. JIMMY LASAAEIA SPFIING V.L'Y. CAATAG5 11:101 COMM!iiRCE SrAEE'I' JIMMY: L.ASARSA GAA.I.AND. TX 75040 '!SD1 COMMERCE SiAEET GARlAND, TX 75040-6711 0tNJ:Jtloml?

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'ln11!71co: OOD29384SS $Bn.ss .Dl.llo: Augucrt3Q, 2011 ~omen 65~,01~2~ Amount cmClascd i..ABARBA I;!ROTHeRS LTD OElA..

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PENSKETRUCKLEPSING CO,, L. P. P.O. BOX 802577 CHICAGO, ll. 606El0·25n

· ·····---r·····d Receive T'Jme sep. . c::J, .. 2013-·12·50PM • No • 2016

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LEON CHANDLER 7.D!3 SEP 23 A!~ II: q6 vs. HARRISON COUNTY, TEXAS

SPRING VALLEY CARTAGE, Individually and d/b/a K-TOO ENTERPRISES, INC., Individually, LABARBA BROTHERS, LTD. and JOAQUIN CRUZ FIGUEROA 71 ST JUDICIAL DISTRICT

AMENDED NOTICE OF INTENTION TO TAKE DEPOSITION BY WRITTEN QUESTIONS TO: Michael D. Antalan, ANTALAN & ASSOCIATES, 2211 Norfolk, Suite 600, Houston, TX, 77098

PLEASE ']['AKE NOTICE that after twenty (20) days from the service of a copy hereof; and of the attached questions, a deposition by written questions will be taken of the CUSTODIAN(S) OF RECORDS FOR:

Corporation Service Company, 211 East 7th St., Ste 620, Austin, TX 78701; Registered Agent for Penske Truck Leasing Company

before a Notary Public or an authorized officer for RECORDS & REVIEW, 190 County Road 4204, Jacksonville, TX, 75766 . Which deposition with attached questions may be used in evidence upon the trial of the above-styled and numbered cause pending in the above-named court. ·

Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to answer the attached Direct Questions and as they relate to Exhibit "A" attached hereto and made· a part hereof pertaining to:

LABARBA BROTHERS, LTD. dba SPRING VLY CARTAGE I JIMMY LABARBA

and turn all such records over to the Notary Public authorized to take this deposition for inspection and photocopying of the same may be made and attached to said deposition.

Respectfully submitted, CLAY WillTE/ AMY MILLS WillTE SHAVERLAW FIRM ATTORN'EYS FOR DEFENDANT STATE BAR N0.21292220 I 00784607

CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Notice oflntention to Take Deposition by Written Questions has been delivered to the individuals listed below, by certified mail, osta prepaid, hand delivered or by telephonic document transfer, on this the 18• day of September, 20 1~ .

RECORDS & REVIEW

cc: Michael D. Antalan 5EP-05-20\3(THU) ''A" lnvolce 0002938455 p. 003/004

AuguGt ~. 2011

Lease 1nvoice Ptlga: Cu:~tmrrilr:

1 or:= GS681101·G2'nl gjg/7 DGiiOOOIO lli":t1!1!dt1111l3f NNhiNNNI:r111 JIOO:JIJ:I~ I.AI3AFII!IA SAO'rt·IEAS LiD DBA, LABAffiBA.BROTHERS LTD DBA. JIMMY LASAABA SPF!JNG V.LY. CARTAGE 1801 COMMSACE Sif:I!:J::I' JIMMY: LASARSA GIARI.AND. TX 75040 'ISD1 COMMERCE SIREET GARLAND. iX 7E040-a"l1, CJ~:Jtlonll?

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ln11!71crtJ: 00D2.S354S5 $9n.sa Dllto: Augum3Q, 2011 Cuc!omsr: S5001,01..S27:'!

Amount c:mCloBcd LABARBA SROTHeRS LTD 06111..

JIMMY LAE!ARSA 1801 COMMEACE STAEl:l'

PJf)Q.SO wrltB th& /nvoJr::e numt;ler on .::1 r;h6ck p!Jy.Jbio ro Ptmskc GARI..ANO,TX 75040

PEN$KETRUCK LEI\SING CO., L. P. ?.0. sox 802577 CHICAGO, IL 60680·2577

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CAUSENO. 12-0461 LEON CHANDLER § IN THE DISTRICT COURT OF § vs. § HARRlSON COUNTY, TEXAS § SPRING VALLEY CARTAGE, Individually § and d/b/a K-TOO ENTERPRISES, INC., § Individually, LABARBA BROTHERS, LTD. § and JOAQUIN CRUZ FIGUEROA § 71 ST JUDICIAL DISTRICT

DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS, CUSTODIAN OF RECORDS FOR: PENSKE TRUCK LEASING COMPANY, LP 1. Please state your full name, occupation, and official title.

Answer..~~--------------------------------------------------------------

2. Are you the custodian of the business records ofPENSKE TRUCK LEASING COMPANY, LP or do you have authority to release these records? Answer:________________________________________________________________

3. Are you among those who have possession, custody, control of or access to any and all business records pertaining to Exhibit "A" attached hereto and made a part hereof? Answ~=·-----------------------------------------------------------

4. Are the aforementioned records kept in the regular course of business of your employer?

Answ~=-------------------------------------------------------------

5. Was it in the regular course of business ofPENSKE TRUCK LEASING COMPANY, LP for a person with personal knowledge of the act, event, condition or opinion recorded to make the record or to transmit information th~eof to be included in such record? Answ~=---------------------------------------------------------------

6. Please state whether these records w~e made at the time or shortly after the time of the transaction or service ·recorded.

Answer.__________________________________________________________

· 7. Have you received a subpoena duces tecum for all of the records pertaining to Exhibit "A" attached hereto and made a part hereof? Answer:______________________________________________________

8. Please release exact duplicates of the records as requested on the deposition subpoena, or the originals thereof, for photocopying for attachment to this deposition. Have you done as requested? If not, why not? Answ~=----------------------------------------------------------

WITNESS (Custodian ofRecords)

Sworn to and subscribed before me on the ____ day of _ _ _ _ _ _ _ _ _ _ __;> 2013.

Notary Public In and for The State of _ _ _ __

My Commission Expires:_ _ _ _ _ _ _ __

5EP-05-2013(THU) "A'' Invoice 0002:933455 P. 003/004

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INSTRUCTI FOR COMPLETING RE EST

1. IF the TOTAL COST OF PROCESSING this request exceeds $75.00, please call our office BEFORE processing them for attorney approvaL

2. IF the request includes any legal documents, the legal documents are to be completed by the Custodian. PLEASE PRINT YOUR NAME CLEARLY.

3. Please READ and ANSWER each question, and SIGN on the Witness/Affiant line. Your si nature must · d. The NOTARY must SIGN on the notary line as well as provide the notary SEAL to the LEFT of the signature.

4. WHITE OUT IS NOT allowed on legal documents. It renders the document inadmissible in court. If you happen to make a mistake on the legals, please call and we will send you another one, or we can assist you in making a correction.

PLEASE MAIL TO RECORDS & REVIE 190 County Road 4204 Jacksonville, TX 75766 Phone: (903) 586-2182 Fax: (903) 586-5901

DEPOSITION SUBPOENA DUCES TECUM THE STATE OF TEXAS TO ANY SHERIFF, CONSTABLE, OR ANY OTHER PERSON AUTHORIZED TO SERVE SUBPOENAS UNDER RULE 176 T.R.C.P.

GREETINGS:

YOU ARE HEREBY CO:MIV.lANDED TO SlJBPOENA AND SUMMON the following witnesses:

Custodian of Employment Records for Southern Refrigerated Transport Inc. 8055 Hwy 67 North Texarkana, AR 71854

to be and appear before a Notary Public of my designation for

Records & Review 190 County Road 4204 Jacksonville, TX 75766

on the forthwith day instanter at the office of the custodian or other agreed upon time and/or place and there to make answers under oath of certain written questions to be propounded to the custodian ofrecords. The witness is to bring and produce for inspection and photocopying ANY AND ALL EMPLOYMENT RECORDS, BUT NOT LIMITED TO: Pre-employment records, payroll records, personnel records, applications for employment, disciplinary records, evaluation records, supervisor reports, W-2's, 1099 forms, employment contracts, independent contractor agreements, appointment logs, appointment books, wage records, time cards, claim file, disability applications, worker's compensation records, all group health insurance records, medical files, attendance records, office notes (handwritten or typed), any correspondence from other employers or attorneys, and anything else reduced to writing in the possession, custody or control of the said witness pertaining to:

THOMAS BULLOCK, DOB: This Subpoena is being issued at the instance of the Defendant in that certain Cause No. 11 C 1804-102 in the __ Judicial District Court ofBowie County, Texas, styled

THOMAS BULLOCK VS. ARTHUR CLEVELAND CASE

and there remain from day to day and time to time until discharged by me according to law. This subpoena is issued in accordance to Rule 176, T.R.C.P., and falls under exception to confidentiality, Rule 509(e)(4). Rule 176.8(a) Contempt: Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed in contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punishable by fine or confinement, or both.

Witness my hand, this the \~ day of ~ '2014.

Reply to:

be~~ Records & Review 190 County Road 4204 Jacksonville, TX 75766 Notary Public in.and For the State ofTexas (903) 586-21821 (903) 586-5901 FAX

Attorney requesting subpoena:

~~ /f~~~r~~~ BARBARA JEAN-MARIE DOTSON t'i....t~ ~ ~ . :*~ .., ... MY COMMISSION EXPIRES MARSHALL C. WOOD ~•1' ·--~;;,···:&,1.~ June 4J 2016 ,.i,,?fi,n NORTON & WOOD, L.L.P ~~ ·.·~t C .u CC ( _-::::) ~j CAUSE NO. llC 1804-102 ,.,. ['1 c·r·-D· ,..OR1 ,: ...... ~ ~ ~

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r i!''.

,j . ,. ,·., '~· .,:.,_,.

lN THE D~ffi~T2~opt~: 0 I THOMAS BULLOCK § § vs. § OF BOWIE COUBitt'¥f61 § DISTRICT CLERK BOWIE CO. TX.

ARTHUR CLEVELAND CASE § _ _ JUDICIAL DISTRICT _ _ _ _ _ _ DEPUTY

NOTICE OF INTENTION TO TAKE DEPOSITION BY WRITTEN QUESTIONS

TO: James W. Litzler, LITZLER LAW OFFICE, 430 Church St., Sulphur Springs, TX 75783

PLEASE TAKE NOTICE that after twenty (20) days from the service of a copy hereof, and of the attached questions, a deposition by written questions will be taken of the CUSTODIAN(S) OF EMPLOYMENT RECORDS FOR:

Priefert Logistics, 2630 South Jefferson Ave, Mount Pleasant, TX 75456-1540 Southern Refrigerated Transport Inc.8055 Hwy 67 North, Texarkana, AR 71854

before a Notary Public or an authorized officer for RECORDS & REVIEW, 190 County Road 4204, Jacksonville, TX, 75766. Which deposition with attached questions may be used in evidence upon the trial of the above-styled and numbered cause pending in the above-named court.

Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce for inspection and photocopying ANY AND ALL EMPLOYMENT RECORDS, BUT NOT LIMITED TO: Pre-employment records, payroll records, personnel records, applications for employment, disciplinaiyrecords, evaiuationrecords, supervisorreports, W-2's, 1099 foimS, employment contracts, independent contractor agreements, appointment logs, appointment books, wage records, time cards, claim file, disability applications, worker's compensation records, all group health insurance records, medical files, attendance records, office notes (handwritten or typed), any correspondence from other employers or attorneys, and anything else reduced to writing in the possession, custody or control of the said witness pertaining to:

THOMAS BULLOCK, DOB: --

and tum all such records over to the Notary Public authorized to take this deposition for inspection and photocopying of the same may be made and attached to said deposition.

Respectfully submitted, MARSHALL C. WOOD NORTON & WOOD, L.L.P. ATTORNEYSFORDEFENDANT STATE BARNO. 00797690

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing Notice efintention to Take Deposition by Written Questions has been delivered to the individuals listed below, by certified mail, ostage prepaid, hand delivered or by telephonic document transfer, on this the 241h day ofFebruary, 20 4.

RECORDS & REVIEW

cc: James W. Litzler

CAUSE NO. llC 1804-102

THOMAS BULLOCK § IN THE DISTRICT COURT § vs. § OF BOWIE COUNTY, TX § ARTHUR CLEVELAND CASE § JUDICIAL DISTRICT

DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS, CUSTODIAN OF EMPLOYMENT RECORDS FOR: SOUTHERN REFRIGERATED TRANSPORT, INC.

1. Please state your full name, occupation, and official title.

Ju~w~:______________________________________~--------------------------

2. Ju·e you the custodian of the employment records of SOUTHERN REFRIGERATED TRANSPORT, INC. or do you have authority to release these records? Answ~: __________________________________________________________________

3. .Are you among those who have possession, custody, control of or access to any and all employment records pertaining to THOMAS BULLOCK? Answ~:__________________________________~------------------------------

4. Are the aforementioned records kept in the regular course ofbusiness of your employer?

Answ~:. __________________________________________________________________

5. Was it in the regular course ofbusiness ofSOlJTBERN REFRIGERATED TRANSPORT, INC. for a p~son with personal knowledge ofthe act, event, condition or opinion recorded to make the record or to transmit information thereof to be included in such record? Answ~: __________________________________________________________________

6. Please state wheth~ these records were made at the time or shortly aft~ the time of the transaction or service recorded. Answ~: __________________________________________________________________

7. Have you received a subpoena duces tecum (including this one) for any and all records pertaining to THOMAS BlOLLOCK? Answer:__________________________________________________________________

8. Please release exact duplicates of the records as requested on the deposition subpoena, or the originals thereof, for photocopying for attachment to this deposition. Have you done as requested? If not, why not? Answ~: __________________________________________________________________

WITNESS (Custodian ofRecords)

Sworn to and subscribed before me on the ______ day of__________________--" 2014.

Notary Public In and for The State of_______

My Commission Expires:___________

INS.TRUCTI FOR COMPLETING RE UEST

IF T.HERE ARE LEGALS WITH THIS REQUEST DO NOT USE WHITE OUT TO CORRECT ANY ERRORSm See #4.

1. IF the TOTAL COST OF PROCESSING this request exceeds $75.00, please call our office BEFORE processing. them for attorney approvaL

2. IF the request includes any legal documents, the legal documents are to be completed by the Custodian. PLEASE PRINT YOUR NAME CLEARLY.

3. Please READ and .ANSWER each question, and SIGN on the.

Witness/Affiant line. Your si natu e notarized. The NOTARY must SIGN on the notary line as well as provide the notary SEAL to the LEFT of the signature.

4. WHITE OUT IS NOT allowed on legal documents.. It renders the document inadmissible in court. If you happen to make a mistake on the legals, please call and we will send you another one, or we can assist you in making a correction .

.PLEASE.MAIL TO. RE:CORDS & REVIE 190 County Road 4.204 Jacksonville, TX 75766 P.hone: (903) 586-2182 ·Fax·: (903) 5·86-5901

DEPOSITION SUBPOENA DUCES TECUM THE STATE OF TEXAS

TO ANY SHERIFF, CONSTABLE, OR ANY OTHER PERSON AUTHORIZED TO SERVE SUBPOENAS UNDER RULE 176 T.R.C.P.

GREETINGS:

YOU ARE HEREBY COMMANDED TO SUBPOENA AND SUMMON the following witnesses:

Custodian of Medical Records for: Dr. Eldor Brish and/or ETMC First Physicians 700 Olympic Plaza, Suite 850 ANY & ALL Tyler, TX 75701

to be and appear before aN otary Public of my designation for

Records & Review 190 County Road 4204 Jacksonville, TX 75766

Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce for inspection and photocopying ANY & ALL MEDICAL RECORDS including, BUT NOT LIMITED TO: Patient information sheet, medical file, medical records, color photographs, ER records, outpatient records, chiropractic records, physical therapy records, insurance treatment notes, insurance records, psychiatric records, counseling notes, prescriptions, pharmacy records, x-ray films, radiology reports, lab reports, narrative reports, rehabilitation notes, daily progress notes, office notes (handwritten or typed), any correspondence from other doctors or attorneys, and anything else reduced to writing in the possession, custody or control of the said witness pertaining to:

MURIEL ANN BEBEL, DOB: _

This Subpoena is being issued at the instance of the Attorney for RES Energy Solutions, LLC and Margaret Lynn Kahn in that certain Cause No. 2014-404-CCL2 in the County Court at LawNo.2 of Gregg County, TX, styled

MURIEL BEBEL, et al vs RES ENERGY SOLUTIONS, LLC, et al

and there remain from day to day and time to time until discharged by me according to law. This subpoena is issued in accordance to Rule 176, T.RC.P., and falls under exception to confidentiality, Rule 509(e)(4). Rule 176.8(a) Contempt: Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed in contempt of the COlirt from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punishable by fine or confinement, or both.

h� · Witness my hand, this the ---!\_q.!-� __ day of --l-"-�..q:

# · =�,-=�� =::.- __ , 2014.

Reply to: Records & Review 190 County Road4204 Jacksonville, TX 75766 (903) 586-2182/ (903) 586-5901 FAX

Attorney requesting subpoena: MICHAEL L. DUNN SMEAD, ANDERSON & DUNN

CAUSE NO. 2014-404-CCL2 MURIEL BEBEL, Individually and as Next § IN THE COUNTY COURT Friend for CHRIS BEBEL, A Minor § § VS. § AT LAW #2 OF § RES ENERGY SOLUTIONS, LLC, MARGARET § LYNN KAHN, and KEVTEX, INC., d/b/a § EXPRESS ElvLPLOYMENT PROFESSIONALS § GREGG COUNTY, TEXAS

NOTICE OF INTENTION TO TAKE DEPOSITION RY WRITTEN QUESTIONS

TO: Jarom Tefteller, TEFTELLER LAW, 403 W. Tyler St., Gilmer, TX 75644 Brad Donnell, MCAFEE & TAFT, 211 N. Robinson, 2 Leadership Sq., lOth Floor, Oklahoma City, OK 73102 G.R. (Randy) Akin, ATTORNEY AT LAW, 3400 W. Marshall Ave., Suite 300, Longview, TX 75604

PLEASE TAKE NOTICE that after twenty (20) days from the service of a copy hereof, and of the attached questions, a deposition by written questions will be taken of the CUSTODIAN(S) OF MEDICAL RECORDS FOR:

Dr. Eldor Brish and/or ETMC First Physicians, 700 Olympic Plaza, Suite 850, Tyler, TX 75701 Kroger Pharmacy" 1014 Vine St., Cincinnati, OR 45202

before a Notary Public or an authorized officer for RECORDS & REVIEW, 190 County Road 4204, Jacksonville, TX, 75766. Which deposition with attached questions may be used in evidence upon the trial of the above-styled and numbered cause pending in the above-named court.

Notice is further gjven that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce for inspection and photocopying ANY & ALL MEDICAL RECORDS including, BUT NOT LIMITED TO: Patient information sheet, medical file, medical records, color photographs, ER records, outpatient records, chiropractic records, physical therapy records, insurance treatment notes, insurance records, psychiatric records, counseling notes, prescriptions, pharmacy records, x­ ray films, radiology reports, lab reports, narrative reports, rehabilitation notes, daily progress notes, office notes (handwritten or typed), any correspondence from other doctors or attorneys, and anything else reduced to writing in the possession, custody or control of the said witness pertaining to:

MURIEL ANN REBEL, DOB:

and tum all such records over to the Notary Public authorized to take this deposition for inspection and photocopying of the same may be made and attached to said deposition.

Respectfully submitted, MICHAEL 1. DUNN SMEAD, ANDERSON & DUNN ATTORNEYS FOR RES Energy Solutions, LLC and Margaret Lynn Kahn STATE BAR NO. 06246900

CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Notice of Intention to Take Deposition by Written Questions has been delivered to the individuals listed below, by certified mail, p e pre ·d, d delivered or by telephonic document transfer, on this the 29TH day of August, 2014

cc: Jarom Tefteller Brad Donnell G.R. (Randy)AlGn

CAUSE NO. 2014-404-CCL2 MURlEL BEBEL, Individually and as Next § IN THE COUNTY COURT Friend for CHRIS BEBEL, A Minor § § VS. § AT LAW #2 OF § RES ENERGY SOLUTIONS, LLC, MARGARET § LYNN KAHN, and KEVTEX, INC., d/b/a § EXPRESS EMPLOYMENT PROFESSIONALS § GREGG COUNTY, TEXAS

DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS,.

CUSTODIAN OF MEDICAL RECORDS FOR:

DR. ELDOR BruSH and/or ETMC FIRST PHYSICIANS

1. Please state your full name, occupation, and official title.

Answ�:. __________________________________________________________________

2. Are you the custodian of the medical records of DR ELDOR BRISH and/or ETMC FIRST PHYSICIANS or do you have authority to release these records? Answer: __________________________ -'--___________________________ _

3. Are you among those who have possession, custody, control of or access to (ANY & ALL) medical records pertaining to MURIEL BEBEL? Answer: ______________________________________________________

4. Are the aforementioned records kept in the regular course of business of your employer?

Answ�: _____________________________________________________________

5. Was it in the regular course of business of DR ELDOR BRISH and/or ETMC FIRST PHYSICIANS for a p�son with personal knowledge of the act, event, condition or opinion recorded to make the record or to transmit information thereof to be included in such record? Answer: __________________________________________________

6. Please state whether these records were made at the time or shortly after the time of the transaction or service recorded. Answer: ____________________________________________

7. Have you received a subpoena duces tecum (including this one) for (ANY & ALL) medical records pertaining to MURIEL BEBEL? Answ�:. ___________________________________________________________

8. Please release exact duplicates of the records as requested on the deposition subpoena, or the originals thereot: for photocopying for attachment to this deposition. Have you done as requested? If not, why not? Answer: _______________________________________________________

WITNESS (Custodian of Medical Records)

Sworn to and subscribed before me on the ____ day of ________________ -', 2014.

Notary Public In and for The State of _______ _

My Commission Expires: ________ _

1

09/03/2014 11 :42 903-680-2546 Jarom Tefteller Page 10/13

Cause Number: 2014-404-CCL2

MURIEL BEBEL and § IN THE DISTRICT COURT OF CHRIS BEBEL, As Next Friend for CB, § a Minor, § Plaintiffs, § § vs. § GREGG COUNTY, TEXAS § RES ENERGY S OLUTIONS, LLC, § KEVTEX, INC DIB/AI EXPRESS § EMPLOYMENT PROFESSIONALS, § MARGARET LYNN KAI-IN and § GCIC, LLC DIB/A RES ENERGY § SOLUTIONS, LLC § Defendants. § COUNTY COURT-AT-LAW #2

CROSS-QUESTIONS TO BE PROPOUNDED TO THE CUSTODIAN OF RECORDS

** RESTRICT YOUR ANSWERS TO THE CROSS-QUESTIONS FROM THE DATE OF

THE ACCIDENT, APRIL 3, 2012, THROUGH TODAY'S DATE.

1. Please state your full name, occupation, and business address for the record.

2. As custodian of records or other authorized official, are you familiar with whether or not your regulations require that medical and billing records be kept on each person who is a '

patient?

3. Do you have medical records and billing statements for services or treatment rendered to Muriel Bebel?

4. Please state the full amount of charges for the treatment or services rendered to Muriel Bebel.

09/03/2014 11 :42 903-680-2546 Jarom Tefteller Page 11/13

5. i\.re you familiar with charges for the same or similar type of services in this vicinity?

6. Are such charges reasonable for the same or similar type of services in the vicinity in which they were incurred.

7. Were the services and treatment rendered to Patient reasonably necessary for the proper care and treatment of said patient.

8. Were these records m ade and kept in the regular course of business of the medical provider you are employed at?

9. . Are the records kept under your care, custody, andlor supervision?

10. Were the entries in the billing records made on or near the time of the act, event, or c:ondition recorded in the patient's chart?

11. Were the billing records inquired about above made by the doctor, nurse, therapist, or other members of the staff of your employer?

12. Were these records kept in the administrative procedure of your employer?

13. Did you maintain such bills transmitted to your files and thereafter as custodian of the billing records for your employer?

09/03/2014 11 :42 903-680-2546 Jarom Teftelier Page 12/13

14. Do you understand the attached subpoena asks that you produce any and all billing records in your possession pertaining to Muriel B ebel?

15. Have you provided the original and/or a true and correct copy of each and every requested document you possess pertaining to Muriel Bebel?

16. 1lf you withheld any documents pertaining to Muriel Bebel, please identify such document(s) and the reason for withholding it.

17. Please state, upon review of the records responsive to the subpoena, the total amount charged to Muriel Bebel before any discounts are applied.

18. Please state, upon review of the records responsive to the subpoena, the total amount PAID to Provider for the treatment provided to Muriel Bebel.

19. Please state, upon review of the records responsive to the subpoena, the full amount of charges and expenses INCURRED BUT STILL NOT PAID to your employer for services and treatment provided to Muriel Bebel.

20. Combining the amounts from questions 18 and 19 above, please provide the total amount of charges your employer is legally entitled to be paid.

Signature of Custodian

0910312014 11 :42 903-680-2546 Jarom Tefteller Page 13/13

STATE OF _____ )

COUNTY OF ____ )

I, the undersigned Notary Public, do hereby certify that the foregoing answers of the

witness were made before me and were sworn to and subscribed before me by the witness;

GIVEN U NDER MY HAND AND SE AL OF OFFICE on this __ day of _____�

2014.

Notary Public State of _____

Texas Administrative Code TITLE 22 EXAMINING BOARDS PART 9 TEXAS MEDICAL BOARD CHAPTER 165 MEDICAL RECORDS RULE §165.2 Medical Record Release and Charges (a) Release of Records Pursuant to Written Request. As required by the Medical Practice Act, § 159.006, a physician shall furnish copies of medical andlor billing records requested or a summar y or narrative of the records pursuant to a written release of the information as provided by the Medical Practice Act, § 159.005, except if the physician determines that access to the information would be harmful to the physical, mental, or emotional health of the patient. The physician may delete confidential information about another patient or family member of the patient who has not consented to the release. If requested, the physician shall provide the requested records in electronic format, if such records are readily producible. If the requested records are not readily producible in a readable electronic format, the records shall be produced in a format as agreed to by the physician and the requestor. If by the nature of the physician's practice, the physician transmits health information in electronic form, the physician may be subject to the Health Insurance Portability and Accountability Act (HIPAA) 45 C.F.R. Parts 160-164. Unless otherwise provided under HIPAA, physicians subject to HIP AA must permit the patient or an authorized representative access to inspect medical andlor billing records and may not provide summaries in lieu of actual copies unless the patient authorizes the summary and related charges.

,., "'-(b) Deadline for Release of Records. The requested copies of medical and/or billing records or a summary or narrative of the records shall be furnished by the physician within 15 business days after the date of receipt of the request and reasonable fees for �urnishing the information. � (c) Denial of Requests for Records. If the physician denies the request for copies of medical andlor billing records or a summary or narr ative of the records, either in whole or in part, the physician shall furnish the patient a written statement, signed and dated, within 15 business days of receipt of the request stating the reason for the denial and how the patient can file a complaint with the federal Department of Health and Human Services (if the physician is subject to HIPAA) and the Texas Medical Board. A copy of the statement denying the request shall be placed in the patient's medical andlor billing records as appropriate.

(d) Contents of Records. For purposes of this section, "medical records" shall include those records as defmed in §165.l(a) of this title (relating to Medical Records) and shall include copies of medical records of other health care practitioners contained in the records of the physician to whom a request for release of records has been made.

(e) Allowable Charges.

(1) Paper Format. (A) The physician responding to a request for such information in paper format shall be entitled to receive a reasonable, cost-based fee for providing the requested information. (B) A reasonable fee for providing the requested records in paper format shall be a charge of no more than $25 for the first twenty pages and $.50 per page for every copy thereafter.

(2) Electronic Format. (A) The physician responding to a request for such information to be provided in electronic format shall be entitled to receive a reasonable, cost-based fee for providing the requested information in electronic fonnat. (B) A reasonable fee for providing the requested records in electronic fonnat shall be a charge of no more than: $25 for 500 pages or less; $50 for more than 500 pages.

(3) Hybrid Records Format. (A) The physician responding to a request for such information that is contained partially in e1ectronic format and partially in paper format ("hybrid"), may provide the requested information in a hybrid format and shall be entitled to receive a reasonable, cost based fee for providing the requested information. (B) A reasonable fee for providing the requested records in a hybrid format may be a combination of the fees as set forth in paragraphs (1) and

(2) of this subsection.

(4) Other Charges. (A) If an affidavit is requested,certifying that the infonnation is a true and correct copy of the records,whether iin paper,electronic or hybrid fonnat,a reasonable fee of up to $15 may be charged for executing the affidavit. (B) A physician may charge separate fees for medical and billing records requested. (C) Allowable charges for copies of diagnostic imaging studies are set forth in §165.3 of this title (relating to Patient Access to Diagnostic hnaging Studies in Physician's Office) and are separate from the charges set forth in this section.

(5) A reasonable fee for records provided in a paper,electronic or hybrid fonnat may not include costs associated with searching for and retrieving the requested infonnation,and shall include only the cost of: (A) copying and labor, including, compiling, extracting, scanning,burning onto media,and distributing media; (B) cost of supplies for creating the paper copy or electronic media (if the individual requests portable media) that are not prohibited by federal law; (C) postage,when the individual has requested the copy or summary be mailed; and (D) preparing a summary of the records when appropriate.

(f) Emergency Requests. The physician providing copies of requested medical and/or billing records or a summary or a narrative of such records shall be entitled to payment of a reasonable fee prior to release of the information unless the information is requested by a licensed Texas health care provider or a physician licensed by any state, territory,or insular possession of the United States or any State or province of Canada if requested for purposes of emergency or acute medical care.

(g) Non-emergent Requests. In the event the physician receives a proper request for copies of medical andlor billing records or a summary or narrative of the records for purposes other than for emergency or acute medical care,the physician may retain the requested information until payment is received. If payment is not routed with such a request, within ten calendar days from receiving a request for the release of such records,the physician shall notify the requesting party in writing of the need for payment and may withhold the information until payment of a reasonable fee is received. A copy of the letter regarding the need for payment shall be made part of the patienfs medical and/or billing record as appropriate.

(h) Improper Withholding for Past Due Accounts. Medical andlor billing records requested pursuant to a proper request for release may not be withheld from the patient, the patient's authorized agent, or the patient's designated recipient for such records based on a past due account for medical care or treatment previously rendered to the patient.

(i) Subpoena Not Required. A subpoena shall not be required for the release of medical andlor billing records requested pursuant to a proper release for records under this section and the Medical Practice Act,§159.006,made by a patient or by the patient's guardian or other representative duly authorized to obtain such records.

G) Billing Record Requests. In response to a proper request for release of medical records,a physician shall not be required to provide copies of billing records pertaining to medical treatment of a patient unless specifically requested pursuant to the request for release of medical records.

(k) Prohibited Fees for Records Released Related to Disability Claims. The allowable charges as set forth in this chapter shall be maximum amounts,and this chapter shall be construed and applied so as to be consistent with lower fees or the prohibition or absence of such fees as required by state statute or prevailing federal law. In particular,under §161.202 of the Texas Health and Safety Code,a physician may not charge a fee for a medical or mental health record requested by a patient,former patient or authorized representative of the patient if the request is related to a benefits or assistance claim based on the patient's disability.

(1) Applicable Federal Law. Whenever federal law or applicable federal regulations affecting the release of patient information are inconsistent with provisions of this section,the provisions of federal law or federal regulations shall be controlling, unless the state law is more restrictive/stringent. Physicians are responsible for ensuring that they are in compliance with federal law and regulations including the Health Insurance Portability and Accountability Act (HIPAA) 45 C.F.R. Parts 160-164.

Source Note: The provisions of this §165.2 adopted to be effective December 29,1997,22 TexReg 12490; amended to be effective May 21,2000,25 TexReg4349; amended to be effective November 19,2000,25 TexReg 11282; amended to be effective September 19, 2002,27 TexReg 8769; amended to be effective March 4,2004,29 TexReg 1946; amended to be effective January 20, 2014,39 TexReg 273

INSTRUCTI FOR COMPLETING RE UEST

IF THERE ARE LEGALS WITH THIS REQUEST DO NOT USE WHITE 'OUT TO CORRECT ANY ERRORS. See #4.

1. IF the TOTAL COST OF PROCESSING this request exceeds $75.00, please call our office BEFORE processing them for attorney approval..

2. IF the request includes any legal documents, the legal documents are to be completed by the Custodian. PLEASE PRINT YOUR NAME CLEARLY.

3. Please READ and ,ANSWER each question, and SIGN on the, Witness/Affiant line. Your si nature m s otarized. The NOTARY must SIGN on the notary line as well as provide the notary SEAL to the LEFT of the signature.

4. 'WHITE OUT IS NOT allowed on legal documents.. It renders the document inadmissible in court. If you happen to m ake a mistake on the legals, please call and we will send you another one, or we can assist you in making a correction.

,PLEASE. MAIL TO.

RE�CORDS & REVIE 190 County Road 4.204 Jacksonville,TX 75766 P,hone: (903)586-2182 'Fax': (903) 5'86-5901

DEPOSITION SUBPOENA DUCES TECUM THE STATE OF TEXAS TO ANY SHERIFF, CONSTABLE, OR ANY OTHER PERSON AUTHORIZED TO SERVE SUBPOENAS UNDER RULE 176 T.R.C.P.

GREETINGS:

YOU ARE HEREBY COMMANDED TO SUBPOENA AND SUl\1MON the following witnesses:

·custodian of Billing for Navarro Regional Hospital 3201 W. Hwy. 22 Corsicana, TX 75110

to be and appear before a Notary Public of my designation for

Records & Review 190 County Road 4204 Jacksonville, TX 75766

on the forthwith day instanter at the office ofthe custodian or other agreed upon time and/or place and there to make answers under oath of certain written questions to be propounded to the custodian of records. The witness is to bring and produce for inspection and photocopying THE FOLLOWING BILLING BEGINNlNG 03/07112 TO PRESENT including, BUT NOT LIMITED TO: itemized billing statements, all billing reflecting reductions or discounts made by Carmen Sardina's healthcare providers pursuant to agreements with Medicare, Medicaid or any health insurance provider for the period March 7, 2012 to date, and anything else reduced to writing in the possession, custody or control of the said witness pertaining to:

CARMENL. (MARQUEZ, SOLIS) SARDINA; DOB: · SS#:

This Subpoena is being issued at the instance of the Attorneys for Shelly Alejandre in that certain Cause No. Cl4-23032-CV in the· County Court at Law ofNavarro County, TX, styled

CARMEN SARDINA VS. SHELLY ALEJANDRE and CHARLOTTE CALLAWAY

and there remain from day to day and time to time until discharged by me according to law. This subpoena is issued in accordance to Rule 176. T.R.C.P.• and falls under exception to confidentiality, Rule 509(e)(4). Rule 176.8(a) Contempt: Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed in contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punishable by fine or confinement, or both.

Witness my hand, this the \ Co~ day of_ez;-++~----T'-+------' 2014. Reply to: Records & Review 190 County Road 4204 Jacksonville, TX 75766 (903) 586-2182 (903) 586-5901 FAX

Attorney requesting subpoena: PETER J. RUTTER RUTTER LAW FIRM

CAUSE NO. Cl4-23032-CV

CARMEN SARDINA § IN THE COUNTY COURT § vs. § ATLAWOF § I TEh~o5 ~c SHELLY ALEJANDRE and § CHARLOTTE CALLAWAY .§ NAVARRO COUNTY, ~ .

l ll>-v;~

NOTICEOFINTENTIONTOTAKE \\ ~~~ 0oro ~

a

DEPOSITION BY WRITTEN OUESTIONS 1 ~.~i;; -o . I ::=:trnn 3.:

TO: Geoffrey E. Schorr, SCHORR LAW FIRM, P.C., 328 W. Interstate 30, Suite 2, Garland, TX 750~ ~~~ • -;ry --i,.........---! .;._ PLEASE TAKE NOTICE that after twenty (20) days from the service of a copy hereof: and of the attach~ questions, ao deposition by written questions will be taken of the CUSTODIAN(S) OF BILLING FOR: -< co

Navarro Regional Hospital, 3201 W. Hwy. 22, Corsicana, TX 75110 American Imaging, Inc., 127 NW 13th St., Suite Cl3, Boca Raton, Fl 33432 Dallas Wellness Center at Blue Lake, 4141 Blue Lake Circle, Ste.200, Dallas, TX 75244 DFW Prescriptions, 2701 Osler Drive, Ste. 1, Grand Prairie, TX 75051 Ennis Chiropractic & Wellness, 109 NW Main St., Ennis, TX 75119 . Dr. James Laughlin, 651 S Great Southwest Pkwy, Grand Prairie, TX 75051 Medical and Surgical Associates of Corsicana, 3500 W. 7th Ave., Corsicana, TX 75110 Navarro Emergency Physicians, PO Box 731926, Dallas, TX 75373 National Radiology Group, P.O. Box2787, Columbus, Ga 31902 Prime Diagnostic Imaging, 9603 White Rock Trail #110, Dallas, TX 75032 before a Notary Public or an authorized officer for RECORDS & REVIEW, 190 County Road 4204, Jacksonville, .TX, 75766. Which deposition with attached questions may be used in evidence upon the trial of the above-styled and numbered cause pending in the above-named court. Notice is :further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce for inspection ?Ud photocopying THE FOLLOWING BILLING BEGINNING 03/07112 TO PRESENT including, BUT NOT LIMITED TO: itemized billing statements, all billing reflecting reductions or discounts made by Carmen Sardina's healthcare providers pursuant to agreements with Medicare, Medicaid or any health insurance provider for the period March 7, 2012 to date, and anything else reduced to writing in the possession, custody or control of the said witness pertaining to: ·CARMEN L. (MARQUEZ, SOLIS) SARDINA; DOB: and tum all such records over to the Notary Public authorized to take this deposition for inspection and photocopying of the same may be made and attached to said deposition.

Respectfully submitted, Peter J. Rutter RUTTER LAW FIRM, P.C. ATTORNEYS FOR Shelly Alejandre STATE BARNO. 00791586

CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Notice oflntentio to Take Deposition by Written Questions has been delivered to the individuals listed below, by certiti ail, o prepaid, hand delivered or by telephonic document transfer, on this the.26TH day ofJune; 2014.

cc: Geoffrey E. Schorr

CAUSE NO. C14-23032-CV

CARMEN SARDINA § IN THE COUNTY COURT § vs. § ATLAWOF § SHELLY ALEJANDRE and § CHARLOTTE CALLAWAY § NAVARRO COUNTY, TEXAS

DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS, CUSTODIAN OF BILLING FOR: NAVARRO REGIONAL HOSPITAL

1. Please state your full name, occupation, and official title.

Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

2. Are you the custodian of the billing ofNAVARRO REGIONAL HOSPITAL or do you have authority to re.Iease these records?

Answ~=----------------------------------

3. Are you among those who have possession, custody, control of or access to billing (BEGINNING 03107112 TO PRESENT) pertainingto·CARMEN SARDINA? Answ~: ________________________________________________

4. Are the aforementioned records kept in the regular course of business of your employer?

Answ~:

·-------------------------------------------------

5. Was it in the regular course ofbusiness ofNAVARRO REGIONAL HOSPITAL for a person with personal knowledge of the act, even~ condition or opinion recorded to make the record or to transmit information thereof to be included in such record? Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

6. Please state wheth~these records were made at the time or shortly after the time of the transaction or service recorded. Answer:__________________________________________

7. Have you received a subpoena duces tecum (including this one) for the billing (BEGINNING 03107/12 TO PRESENT> pertaining to CARMEN SARDINA? Answ~:.___________________________________

8. Please release exact duplicates of the records as requested on the deposition subpoena, or the originals thereof, for photocopying for attachment to this deposition. Have you done as requested? Ifnot, why not? Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

9. Have any of the charges in questions been paid?

..A..nswer:_______________________________________

10. If any such charges have been paid, please state the following:

a. Who paid the charges; a n d - - - - - - - - - - - - - - - - - - - - - - -

b.. The amount paid by each such person or entity making any such payment of the charge. _ __

11. Has any portion of the charges been adjusted down?

Answer:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

12. If any of the charges have been adjusted down, please state the amount of the adjustment.

Answ~=·----------------------------------------------

13. Has any portion of the charges been written off? · Answer:. _______________________________________________

14. If any of the charges have been written off, state the amount written off.

Answ~: ______________________________________

15. Vilb.at is the current balance of the charges?

Answ~=-·------------------------------------

WITNESS (Custodian ofBilling)

Sworn to and subscribed before me on the ____ day of ______________ ,2014.

Notary Public In and for The State of - - - - - - -

My Commission Expires:

Direct Questions 2 ·············-· . . . . . . ., l. . .. -· .. .. .... . ..

. .

CAUSE NO. C14~23032~CV

CARMEN SARDINA § INTHECOUNTYCOURT AT LAW § ~{t

~ Plaintiff, § ~

v.

§ § ~

i

§

l

SHELLY ALEJANDRE and § :;

;

CHARLOTTE CALLAWAY § § Defendants. § OF NAVARRO COUNTY, TEXAS

CR~SS QUESTIONS TO BE PROPOUNDED TO THE WITNESS, CUSTODIAN OF RECORDS FOR: NAVARRO REGIONAL HOSPITAL (BILLING)

COMES NOW CARMEN SARDINA, Plaintiff herein, and submits the following cross

questions to the records custodian for NAVARRO REGIONAL HOSPITAL (BILLING):

1. Please state your full name, address, telephone number, occupation and title.

ANSWER: ______________________________________________

2. Have you been served with a subpoena duces tecum for the production of all records and other documents pertaining to CARMEN SARDINA?

ANSWER=---------------------------------------------

3. Are you the custodian of the records that you have produced?

ANSWER: ________________________________________________

4. Are the records that you have produced kept by your employer in the regular course of business? ANSWER: ______________________________________

5. Vvas it the regular course of business for an employee or representative, with personal knowledge of the act, event or condition recorded to make the memorandum or record or to transmit information to be included in the memorandum of record?

CROSS QUESTIONS/ NAVARRO REGIONAL HOSPITAL (BILLING) PAGE10F3

' !

..

ANSWER=--------------------~-------------------------

6. V'las the memorandum or record made at or near the time of the act, event, '

condition, opinion or diagnosis recorded or reasonably soon thereafter? :· ~ I~ ANSWER: _____________________________________________ f~~ I·

I

7. Are the records that you have produced and attached hereto, duplicate copies of the I.

I

original?

ANSWER: _____________________________________________

8. Is it a rule of your employer to not permit the originals to leave the premises?

AN~R=-----------------------------------------------

9. Do you have an itemized statement of the services and/or supplies and/or prescription drugs that shows the amount of charges made by your employer for the services, supplies andfor prescription drugs provided to or for CARMEN SARDINA? · If so, please hand a copy of the itemized statement to the person who is taking your deposition by written question who is asked to mark the statement as an exhibit to your deposition. Have you done as requested? If not, why not?

ANSWE~---------------------------------------------

10. .Are you a person in charge of billing records of your employer?

AN~ER: ______________________________________

1L Is the itemized statement a record kept by you in the regular course of business of your employer?

AN~E~--------------------------------------

12. Was the information contained in the itemized statement transmitted to you in the regular course of business of your employer or an employee or representative of your employer who had personal knowledge of the information? ANSWER: _______________________________________

13. Was the itemized statement made at or near the time that the services, supplies and/ or prescription drugs were supplied?

ANSWER=-----------------------------------------------

CROSS QUESTIONS f NAVARRO REGIONAL HOSPITAL (BILLING) PAGE2 OF3

. 1

14. Was it in the regular course of business of NAVARRO REGIONAL HOSPITAL (BILLING) for an employee with personal knowledge of the acts, events, condition, diagnoses, or consultations recorded to make these bills and then transmit this information directly over to the patient's account where it is maintained and kept until billing?

AN~R=--------------------------------------------

15. What is the total amount of charges for the services rendered to the patient?

· ANSWE~---------------------------------------------

16. Does the source of the information and the method and circumstance of its preparation establish the trustworthiness of the records?

;mswE~----------------------------------------------

Signature (Custodian of Records)

THESTATEOF _ _ _ _ §

COUNTY OF _ _ _ _ _ §

SUBSCRIBED AND SWORN TO BEFORE ME1 the undersigned authority, by the said witness,, Custodian of Records for NAVARRO REGIONAL HOSPITAL (BILLING) being duly sworn, acknowledged to me that the answers to the foregoing questions are true and correct as stated. The records attached hereto are exact duplicates of the original records.

GIVEN UNDER MY HAND AND SEAL OF OFFICE on this the ____ day of _ _ _ _ __, 20_ _.

Notary Public in and for the State of County of _ _ ___ Printed Name of Notary:

My Commission Expires:

CROSS QUESTIONS J NAVARRO REGIONAL HOSPITAL (BILLING) PAGE30F3

CAUSE NO. C14-23032-CV

CARMEN SARDINA § IN THE COUNTY COURT § vs. § ATLAWOF § SHELLY ALEJANDRE and § CHARLOTTE CALLAWAY § NAVARRO COUNTY, TEXAS

RE-DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS, CUSTODIAN OF BILLING FOR: NAVARRO REGIONAL HOSPITAL

1. Describe your educational background including all college degrees.

Answer. __________~-------------------------------------------------------------------------

2. List all professional licenses (e.g., medical or nursing) you have obtained, including the date the license was issued and the state issuing the license. Aillswer.

--------------------------------------------------------~~-----------

3. If you have testified the charges for the service described in the records you have produced pertaining to CARMEN SARDINA were reasonable, are you qualified to give an expert opinion on the reasonableness of the charges.of services rendered by your office? An.swer:____________________________________________________________________________

4. If you have testified the charges for the service described in the records you have produced pertaining to CARMEN SARDINA were reasonable, state your qualifications for offering this opinion. Answer:.__________________________________________________________________________________

5. If you have testified the charges for the services described in the records you have produced pertaining to CARMEN SARDINA were reasonable, at the time and place that the services were provided, are you qualified to give an expert opinion on the reasonableness of the charges of services rendered by your office? Answer:

---------------------------------------------------------------

6. If you have testified the charges for the service described in the records you have produced pertaining to CARMEN SARDINA were reasonable at the time and place that the service were provided, please state your qualifications for offering this opinion. Answer: _________________________________________

7. Was the treatment or service rendered by this health care provider to CAR.lY.[EN SARDINA necessary? Answer:, ________________________________________________________________ 8. If you have testified that any treatment or service rendered to CARMEN SARDINA was "necessary," are you qualified to give an expert opinion on the necessity of any treatment or service rendered to CARMEN SARDINA ? Answer:.___________________________________________________________

9. If you have testified that any treatment or service rendered to CARMEN SARDINA was "necessary," state your qualifications for offering this opinion. Answer:

·----~---------------------------------------------------

10. Are you aware of any prior accidents or pre-existing medical conditions suffered by CARMEN SARDINA? Answer:

-----------------------------------------------------------

11. In relation to question 10 above, have you considered whether or not those prior accidents or pre-

existing conditions in any way contributed to the medical care given to CARMEN SARDINA by your offices? Answer: _____________________________________________________

12. If the answer to the previous question is in the affirmative, please state what records or other documentation you have reviewed or any person with whom you have spoken concerning the pre-existing conditions or prior accidents CARMEN SARDINA has been involved in to render such an opinion. AnsweL ________________________________________________________

WITNESS (Custodian ofBilling)

I, a Notary Public in and for the State of do hereby certify that the foregoing answers ofthe witness were made by the said witness and sworn to and subscribed before me. The records attached hereto are exact duplicates of the original records.

GNEN UNDER MY HAND AND SEAL OF OFFICE on this the _ _ _ day of _ _ _ _, 2014.

Notary Public in and for The State of _ __

My Commission Expires:. _________

Redirect Questions 2

BILLING AFFIDAVIT OF RECORDS CUSTODIAN OF

I

I

I

l

STATE OF TEXAS

COUNTY OF _ _ __ § § § l Records pertaining to: Cannen Sardina

Before me, the undersigned authority, personally appeared _ _ _ _ _ _ _ ___, who, being by

I

me duly sworn, deposed as follows: \· My name is . I am of sound mind and capable of making this affidavit, and personally acquainted with the facts herein stated.

1 am a custodian of records for . Attached to this affidavit are records that · i proVided an itemized statement of the service and the charge for the service that provided 1 to on . The·attached records are a part of this affidavit ·I

i

I

The attached records are kept by in the regular course of business, and it was the regular course of business of for an employee or representative of -----------'with knowledge of the service provided, to make the record or to transmit information to be included in the record. The records were made in the regular course of business at m: near

I

I

the time or reasonably soon after the time the service was provided. The records are the original or a duplicate of the original.

I·

i

The services provided were necessary and the amount charged for the services was reasonable at the time and place that the services were provided.

The total amount paid for the services was$ and the amount currently unpaid but which _ _ _ _ _ has a right to be paid after any adjustments or credits is$_ _ ___.

Affiant

SWORN TO AND SUBSCRIBED before me on the _ _ day of _ _ _ _ _ __, 20_

Notary Printed Name: - - - - - - - - - My Commission Expires: _ _ _ __

INSTRUCTI FOR COMPLETING RE UEST

IF THERE ARE LEGALS WITH THIS REQUEST DO NOT USE WHITE OUT TO CORRECT ANY ERRORS. See #4.

1. IF the TOTAL COST OF PROCESSING this request exceeds $75.00 please call our office BEFORE processing them for

1

attorney approvar.

2. IF the request includes any legal documents, the legal documents are to be completed by the Custodian. PLEASE PRINT YOUR NAME CLEARLY.

3. Please READ and ANSWER each question, and SIGN on the Witness/Affiant line. Your signature must be notarized. The NOTARY must SIGN on the notary line as well as provide the notary SEAL to the LEFT of the signature.

4. WHITE OUT IS NOT allowed on legal documents. It renders the document inadmissible in court. If you happen to make a mistake on the legals, please call and we will send you another one, or we can assist you in making a correction.

PLEASE MAIL TO RECORDS & REVIE 190 County Road 4204 Jacksonville, TX 75766 Phone: (903) 586-2182 Fax: (903) 586-5901

DEPOSITION SUBPOENA DUCES TECUM THE STATE OF TEXAS TO ANY SHERIFF, CONSTABLE, OR ANY OTHER PERSON AUTHORIZED TO SERVE SUBPOENAS UNDER RULE 176 T.R.C.P.

GREETINGS:

YOU ARE HEREBY COMMANDED TO SUBPOENA AND SU!vii\10N the following witnesses:

Custodian of Employment Records for Aramark Campus LLC Via Fax: 215-238-3282

to be and appear before a Notary Public of my designation for

Records & Review 190 County Road 4204 Jacksonville, TX 75766

Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce for inspection and photocopying ANY AND ALL EMPLOYMENT RECORDS including, BUT NOT LIMITED TO: Pre- employment records, payroll records, personnel records, applications for employment, disciplinary records, evaluation records, supervisor reports, W-2's, employment contracts, independent contractor agreements, appointment logs, appointment books, wage records, ti!me cards, claim file, disability applications, worker's compensation records, all group health insurance records, medical files, attendance records, office notes (handwritten or typed), any correspondence from other employers or attorneys, and anything else reduced to writing in the possession, custody or control of the said witness pertaining to:

LYNDELL MOSBY; DOB:

This Subpoena is being issued at the instance of the Plaintiffin that certain Cause No. CV-1313251 in the County Court At Law ofNacogdoches County, Texas, styled

LYNDELL MOSBY VS. ALLSTATE COUNTY MUTUAL INSURANCE CO. and there remain from day to day and time to time until discharged by me according to law. This subpoena is issued in accordance to Rule 176. T.R.C.P•. and falls under exception to confidentiality, Rule 509{e)(4). Rule 176.8(a) Contempt: Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed in contempt ofthe court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punishable by fine or confinement. or both.

Witness my hand, this the \ IJ?~ day of~ ,2014.

Reply to: Records & Review 190 County Road 4204 Jacksonville, TX 75766 (903) 586-2182 I (903) 586-5901 FAX

Attorney requesting subpoena: JEFF B. BADDERS BADDER LAW FIRM

CAUSE NO. CV-13113251

LYNDELL MOSBY § § vs. § § ALLSTATE COUNTY MUTUAL INSURANCE CO. §

NOTICE OF INTENTION TO TAKE DEPOSITION BY WRITTEN QUESTIONS TO: Kelly B. Lea, WILSON, ROBERTSON & CORNELIUS, 909 ESE Loop 323, Suite 400, Tyler;TX 75701

PLEASE T .A.KE NOTICE that after twenty (20) days from the service of a copy hereof; and of the attached questions, a deposition by written questions will be taken of the CUSTODIAN(S) OF Elv!PLOYMENT RECORDS FOR:

Aramark Campus, LLC, PO Box 8118, Philadelphia, PA 19101

before a Notary Public or an authorized officer for RECORDS & REVIEW, 190 County Road 4204, Jacksonville, TX, 75766. Which deposition with attached questions may be .used in evidence upon the trial of the above-styled and numbered cause pending in the above-named court.

Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer authorized to take this deposition to issue a SUBPOENA DUCES TECUM ·and cause it to be served on the witness to produce for inspection and photocopying ANY AND ALL EMPLOYMENT RECORDS including, BUT NOT LIMITED TO: Pre-employment records, ·payroll records, personnel records, applications for employment, disciplin.aty records, evaluation records, supervisor reports, W-2's, employment contracts, independent contractor agreements, appointment logs, appointment books, wage records, time cards, claim file, disability applications, worker's compensation records, .all group health insurance records, medical files, attendance records, office notes (handwritten or typed), any correspondence :from other employers or .attorneys, and anything else reduced to writing in the possession, custody or control oftb.e said witness pertaining to:

LYNDELL MOSBY; DOB: .

and tum all such records over to the Notary Public authorized to take this deposition for inspection and photocopying of the same may be made and attached to said deposition.

Respectfully submitted, JEFF B. BADDERS BADDERS LAW FIRM ATTORNEYSFORPL~ STATE BARNO. 01496850

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing Notice of Intention to Take Deposition by Written Questions has been delivered to the individuals listed below, by certified mail, postage prepaid, hand delivered or by telephonic document transfer, on this the 27Tff. day of June, 2014.

RECORDS & REVIEW

cc: Kelly B. Lea

CAUSE NO. CV-1313251

LYNDELL MOSBY § IN THE COUNTY COURT § vs. § ATLAWOF § ALLSTATE COUNTY MUTUAL INSURANCE CO. § NACOGDOCHESCOUNTY,TX

DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS, CUSTODIAN OF EMPLOYMENT RECORDS FOR:

ARAMARK CAMPUS LLC

1. Please: state your full name, occupation, and official title.

Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

2. Are you the custodian of the employment records of ARAMARK CAMPUS LLC or do you have authority to release these records? Answ~:. ____________________________________________

3. Are you among those who have possession, custody, control of or access to all employment records pertaining to LYNDELL MOSBY? Answer._______________________________________________

4. Are the aforementioned records kept in the regular course of business of your employer?

Answ~:. ___________________________________________

5. Was it in the regular course ofbusiness of ARAMARK CAMPUS LLC for a person with personal knowledge of the act, event, condition or opinion recorded to make the record or to transmit information thereof to be included in such record? Answer:_________________________________________________

6. Please state whether these records were made at the time or shortly after the time of the transaction or service recorded. Answ~:. _______________________________________________

7. Have you received a subpoena duces tecum (including this one) for records pertaining to LYNDELL MOSBY?

Answ~:.______________________________________________

8. Please release exact duplicates of the records as requested on the deposition subpoena, or the originals thereof: for photocopying for attachment to this deposition. Have you done as requested? If not, why not? Answ~:. ____________________________________________

WITNESS (Custodian ofRecords)

Sworn to and subscribed before me on the _ _ _ day of _____________, 2014.

Notary Public In and for The State of _ _ _ __

My Commission Expires:._ _ _ _ _ _ _ __

CAUSE NO. CV-1313251

LYNDELL MOSBY § IN THE COUNTY COURT § vs. § ATLAWOF § ALLSTATE COUNTY MUTUAL INSURANCE CO. § NACOGDOCHESCOUNT~TX

RECORDS AFFIDAVIT

STATE OF _ _ _ __

COUNTY OF _______

Before me, the undersigned authority, personally a p p e a r e d - - - - - - - - - - - - - ' who, being by me duly sworn, deposed as follows:

My name is . I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated:

I am the custodian of records for ARAMARK CAMPUS LLC. Attached hereto are pages and _ _ CD/DVD(s) of records from ARAMARK CAMPUS LLC concerning LYNDELL MOSBY. These said pages and _ _ CD/DVD(s) of records are kept by ARAMARK CAMPUS LLC in the regular course of business, and it was the regular course of business of ARAMARK CAMPUS LLC for an employee or representative of ARAMARK CAMPUS LLC, with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original.

AFFIANT

SUBSCRIBED AND SWORN TO before me this the _ _ day of _ _ _ _ _ _ _., 2014.

Notary Public in and for the State of _ _ _ __

INSTRUCTI FOR COMPLETING RE EST

1. IF the TOTAL COST OF PROCESSING this request exceeds $75.00, please call our office BEFORE processing them for attorney approval.

2. IF the request includes any legal documents, the legal documents are to be completed by the Custodian. PLEASE PRINT YOUR NAME CLEARLY.

3. Please READ and ANSWER each question, and SIGN on the Witness/Affiant line. Your si nature must be notariz . The NOTARY must SIGN on the notary line as well as provide the notary SEAL to the LEFT of the signature.

4. WHITE OUT IS NOT allowed on legal documents. It renders the document inadmissible in court. If you happen to make a mistake on the legals, please call and we will send you another one, or we can assist you in making a correction.

PLEASE MAIL TO RECORDS & REVIE 190 County Road 4204 Jacksonville, TX 75766 Phone: (903) 586-2182 Fax: (903) 586-5901

THE STATE OF TEXAS TO ANY SHERIFF, CONSTABLE, OR ANY OTHER PERSON AUTHORIZED TO SERVE SUBPOENAS UNDER RULE 176 T.R.C.P.

GREETINGS:

YOU ARE HEREBY COMMANDED TO SUBPOENA AND SUl\1MON the following witnesses:

Custodian of Records for: Wells Fargo Bank Acct#: 4150 Mockingbird Lane Dallas, TX 75205 to be and appear before a Notary Public of my designation for Records & Review 190 County Road 4204 Jacksonville, TX 75766

on the forthwith day instanter at the office of the custodian or other agreed upon time and/or place and there to make answers under oath of certain written questions to be propounded to the custodian of records. The witness is to bring and produce for inspection and photocopying THE FOLLOWING RECORDS BEGINNING JANUARY 1, 2012 THROUGH PRESENTMAINTAINED WITH YOUR FINANCIAL INSTITUTION PERTAINING TO CURTIS REASON ENOS, JR., GLENNA ENOS, ENOS TRUCKING CO., ATTORNEY-CLIENT,JACKN.BARBEEATTORNEY-TTE,rl/blaJACKN.BARBEEincluding,BUTNOTLIMITEDTO: !)Copies of all signature cards, deposit-box rental agreements, deposit-box entry records, and records of assets in safekeeping in the name of Curtis Reason Enos, Jr., Glenna Enos, and Enos Trucking Co., on which Curtis Enos or Glenna Enos had or has signatory authority for the period of January 1, 2012 to present; and 2) Copies of all bank statements, deposit records, withdrawal records, transfer records, and cancelled checks for all checking accounts, savings accounts, certificates of deposit, and any other types ofaccounts maintained in the name of Curtis Reason Enos, Jr., Glenna Enos, and Enos Trucking Co. On which Curtis Enos or Glenna Enos had or has the right to withdraw for the period from January 1, 2012 to present; and anything else reduced to writing in the possession, custody or control of the said witness pertaining to:

CURTIS REASON ENOS, JR., GLENNA ENOS, ENOS TRUCKING CO., ATTORNEY-CLIENT, JACK N. BARBEE ATTORNEY-TTE, d/b/a JACK N. BARBEE This Subpoena is being issued at the instance of the Attorney for Jennifer Gribble in that certain Cause No. 09269 in the County Court at Law of Houston County, Texas.

IN THE ESTATE OF CURTIS REASON ENOS, JR., DECEASED

and there remain from day to day and time to time until discharged by me according to law. This subpoena is issued in accordance to Rule 176, T.R.C.P., and falls under exception to confidentiality,Rule509(e)(4). Rule 176.8(a) Contempt: Failure by any person without adequate excuse to oby a subpoena served upon that person may be deemed in contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punishable bv fine or confinement, or both.

Witness my hand, this the dO~ day of J L..LD..g.__ ,2014.

Officer's Return CAME TO HAND ON THE _ _ day of _ _ _ _ _ 2014, and executed same by delivering this subpoena to __J

the witness named, on the _ _ day of 2014, accepting the tender of all legal fees.

By: ___________~---------

CAUSE NO. 09269 IN THE ESTATE OF § IN THE COUNTY COURT § CURTIS REASON ENOS, JR. § ATLAWOF § DECEASED § HOUSTON COUNTY, TEXAS

NOTICE OF INTENTION TO TAKE DEPOSITION BY WRITTEN QUESTIONS ..::::- :r.

co ..,. nc:.

-t.. CJC::

:::Q· > cc.n TO: William R. Pemberton, ATTORNEY AT LAW, 306 N. 71h Street, Crockett, TX 75835 Cl -< z LynnE. Markham, ATTORNEY AT LAW, 608 E. Houston Ave., Crockett, TX 75835 f;; -~ -;

-i - -< PLEASE TAKE NOTICE that after twenty-four (24) days from the service of a copy hereof, and ofthe~ached"questmns, i'- ·· deposition by written questions will be taken of the CUSTODIAN(S) OF RECORDS FOR: ~ ~=

Citizens National Bank flk/a East Texas National Bank, Attn: Betty Germany, 207 W. Spring St, Pale~, TX 75801 r:,~. Citizens National Bank, 1320 Texas 304 Loop, Crockett, TX 75835 ·- (..;.,) Crockett Bank, 617 E. Houston Ave., Crockett, TX 75835 First Community Bank, 415 E. Goliad Ave., Crockett, TX 75835 Grapeland State Bank, 122 Main St., Grapeland, TX 75844 Lovelaqy State Bank, 910 S. Commerce St., Lovelady, TX 75851 Southland Federal Credit Union, 2601 S. John Redditt Dr., Lufkin, TX 75904 Corporation Service Co.; Reg. Agent for Wells Fargo Bank, 211 East 7th St., Ste 620, Austin, TX 78701 (ACCT#: 7117814850) before a Notary Public or an authorized officer for·RECORDS & REVIEW, 190 County Road 4204, Jacksonville, TX, 75766. Which deposition \Vith attached questions may be used in evidence upon the trial of the above-styled and numbered cause pending in the above-named court. · Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce for inspection and photocopying THE FOLLOWING RECORDS BEGINNING JANUARY 1. 2012 THROUGH PRESENT MAINTAINED WITH YOUR FINANCIAL INSTITUTION PERTAINING TO CURTIS REASON ENOS, JR., GLENNA ENOS, AND ENOS TRUCKING CO. including, BUT NOT LIMITED TO: 1) Copies ofall signature cards, deposit-box rental agreements, deposit-box entry records, and records of assets in safekeeping in the name of Curtis Reason Enos, Jr., Glenna Enos, and Enos Trucking Co., on which Curtis Enos or Glenna Enos had or has signatory authority for the period ofJanuazy 1, 2012 to present; and 2) Copies of all bank statements, deposit records, withdrawal records, transfer records, and cancelled checks for all checking accounts, savings accounts, certificates of deposit, and any other types of accounts maintained in the name of Curtis Reason Enos, Jr., Glenna Enos, and Enos Trucking Co. On which Curtis Enos or Glenna Enos had or has the right to withdraw for the period from January 1, 2012 to present; and anything else reduced to writing in the possession, custody or control of the said witness pertaining to:

CURTIS REASON ENOS, JR., GLENNA ENOS, and/or ENOS TRUCKING CO. and tum all such records over to the Notary Public authorized to take this deposition for inspection and photocopying of the same may be made and attached to said deposition.

Respectfully submitted, JIM PARSONS LAW OFFICES OF JIM PARSONS ATTORNEY FOR Jennifer Gribble STATE BAR NO. 00000065 CERTIFICATE OF SERVICE

dayofMay,2014 !(~~

t

I certify that a true and correct copy of the foregoing Notice of Intention t Take Deposition by Written Questions has been delivered to the individrulls !isred below, by certified mail, po~d, 'vered or by telephonic document transfer, on this the 13•

RECORDS & REVIEW cc: William R. Pemberton Lynn E. Markham

CAUSE NO. 09269

IN THE ESTATE OF § IN THE COUNTY COURT § CURTIS REASON ENOS, JR. § ATLAWOF § DECEASED § HOUSTON COUNTY, TEXAS

DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS, CUSTODIAN OF RECORDS FOR:

WELLS FARGO BANK 1. Please state your full name, occupation, and official title.

Answer:'------------------------'-----------

2. Are you the custodian of the records ofWELLS FARGO BANK or do you have authority to release these records?

hlsw~:. _______________________________________________ 3. Are you among those who have possession, custody, control of or access to records pertaining to THOSE ITEMS LISTED ON THE NOTICE? hlswer:______________________________________________________

4. Are the aforementioned records kept in the regular course ofbusiness of your employ~?

Answ~=·---------------------------------------------------

5. Was it in the regular course ofbusiness ofWELLS FARGO BANK for a p~son with personal knowledge of the act, event, condition or opinion recorded to make the record or to transmit information thereof to be included in such record? Answ~=·------------------------------------------------

6: Please state whether these records were made at the time or shortly after the time of the transaction or service recorded. Answ~:. _______________________________________ 7. Have you received a subpoena duces tecum (including this one) for records pmaining to THOSE ITEMS LISTED ON THE NOTICE? Answer..________________________________________

8. Please release exact duplicates of the records as requested on the deposition subpoena, or the originals th~eof, for photocopying for attachment to this deposition. Have you done as requested? If not, why not? Answ~:. ___________________________________________________________

WITNESS (Custodian ofRecords)

Sworn to and subscribed before me on the _____ day of ___________________; 2014.

· Notary Public In and for The State of________

My Commission Expires:.___________

CAUSE NO. 09269

IN THE ESTATE OF § IN THE COUNTY COURT § CURTIS REASON ENOS, JR. § ATLAWOF § DECEASED § HOUSTON COUNTY, TEXAS

AFFIDAVIT

STATE OF _ __

COUNTY OF ________

Before me, the undersigned authority, personally a p p e a r e d - - - - - - - - - -

_ _ _ _ _ _ _ _ _ _ _ _:,who, being by me duly sworn, deposed as follows:

I, the undersigned, am over 18 years of age, of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated:

I am the CUSTODIAN OF RECORDS for WELLS FARGO BANK

Attached hereto are pages and CD/DVD(s) of records concerning CURTIS ENOS, JR. These said records are kept in the regular course of business at the office of the above, and it was in the regular course of business, at the office of the above, for an employee, representative, or a doctor, with personal knowledge of the act, event or condition, opinion, or diagnosis recorded to make the memorandum or record, or to transmit information hereof to be included in such memorandum or record. The memorandum or record was made at or near the time of the act, event or condition recorded or reasonably soon thereafter.

The records attached hereto are the originals or exact copies of the originals and nothing has been removed or deleted from the original file before making these copies.

AFFIANT

SUBSCRIBED AND SWORN to before me on the _ _ day of _ _ _ _ _ _ _, 2014.

Notary Public in and for the State of _ __

INSTRUCTI FOR COMPLETING RE UEST

IF THERE ARE LEGALS WITH THIS REQUEST DO NOT USE WHITE OUT TO CORRECT ANY ERRORS. See #4.

~II

1. IF the TOTAL COST OF PROCESSING this request exceeds $75.0n, please call our office BEFORE processing them for attorney approvaL

2. IF the request includes any legal documents, the ~egal documents are to be completed by the Custodian. PLEASE PRINT YOUR NAME CLEARLY.

3. P~ease READ and ANSWER each question, and SIGN on the Witness/Affiant line. Your signature must be notarized. The NOTARY must SIGN on the notary line as well as provide the notary SEAL to the LEFT of the signature.

4. WHITE OUT IS NOT allowed on legal documents. It renders the document inadmissible in court. If you happen to make a mistake on the legals, please call and we will send you another one, or we can assist you in making a correction.

PLEASE MAIL TO RECORDS & REVIE 190 County Road 4204 Jacksonville, TX 75766 Phone: (903) 586-2182 Fax: (903) 586-5901