                                                                         ACCEPTED
                                                                    14-15-00053-CV
                                                      FOURTEENTH COURT OF APPEALS
                                                                  HOUSTON, TEXAS
                                                              2/27/2015 12:21:53 PM
                                                                CHRISTOPHER PRINE
                                                                             CLERK

              NO. 14-15-00053-C V

                                                     FILED IN
                IN THE                        14th COURT OF APPEALS
                                                 HOUSTON, TEXAS
      FOURTEENTH COURT OF APPEALS             2/27/2015 12:21:53 PM
            HOUSTON, TEXAS                    CHRISTOPHER A. PRINE
                                                       Clerk


  STANLEY S. FORTSON, INDEPENDENT EXECUTOR OF
   THE ESTATE OF EDWIN DENNIS COOK, DECEASED
                     Relator

                        vs.
               RAY MOGHADDAM,
               Real Party in Interest

                Original Proceeding
   from Harris County Probate Court Number Four
                Hon. Christine Butts
            Trial Cause No. 406,325-401



RESPONSE TO PETITION FOR WRIT OF MANDAMUS




                      JASON B. OSTROM
                      (TBA #24027710)
                      NICOLE SAIN THORNTON
                      (TBA #24043901)
                      ostrommorris, PLLC
                      6363 Woodway, Suite 300
                      Houston, Texas 77057
                      713.863.8891
                      713.863.1051 (Facsimile)
                      jason@ostromm orris.com
                      nicole@ostrom morris.com
                                             TABLE OF CONTENTS


Table of Contents ................... ................... ............                                                  11


Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   l1l


I.       Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.      Standard of Review ................... ................... ...... 2

III.     Summary of the Argument ................... ................... 2

IV.      Statement of Facts ................... ................... ....... 3

V.       Argument ................... ................... .............. 7

         Issue One ................... ................... .............. 7
         Issue Two ................... ................... ............ 12
         Issue Three . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

VI.      Conclusion ................... ................... ............ 23

Prayer ................... ................... ................... .. 24

Certification ................... ................... ................ 25

Certificate of Service ................... ................... ........ 26

Appendix
     Notice of Clarification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A




                                                          -ll-
                           INDEX OF AUTHOR!TIES
CASES
Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9
     (Tex. 2014) ..................................... 15, 16, 19, 20,22

Burchfieldv. Tanner, 178 S.W.2d 681
      (Tex. 1944) ...................................... ........... 19

Cire v. Cummings, 134 S.W.3d 835
       (Tex. 2004) ...................................... ........... 15

Dow Chem. Co. v. Garcia, 909 S.W.2d 503
     (Tex. 1995) ...................................... ........... 15

Ex parte Gibson, 811 S. W.2d 594
      (Tex. Crim. App. 1991, no writ) ................................. 18

Gutierrez v. Dallas ISD, 729 S.W.2d 691
      (Tex. 1987) ...................................... ........... 10

Hanley v. Hanley, 813 S. W.2d 511
     (Tex.App.-Dallas l991,nopet.) .............................. 18

Hickman v. Taylor, 329 U.S. 495
     (194 7) ...................................... ................ 9

Hill & Griffith Co. v. Bryant, 139 S.W.3d 688
      (Tex. App. -Tyler 2004, pet. denied) ............................ 10

In reAcceptance Ins. Co., 33 S.W.3d 443
      (Tex. App.- Fort Worth 2000, no pet.) ............................... 4

In re Alford Chevrolet-Geo, 997 S. W.2d 173
       (Tex. 1999)( orig. proceeding) .................................... 7

In re CSXCorp., 124 S.W.3d 149
       (Tex. 2003) ...................................... ............ 7

                                     -lll-
In re Dow Agrosciences, LLC, 2011 Tex. App. Lexis 723
       (Tex. App.- Houston [14th Dist.]2011, orig. proceeding) ............ 9

In re Houston, 92 S.W.3d 870
       (Tex. App.- Houston [14th Dist.]2002, orig. proceeding) ............ 4

Johnson v. Fourth Court ofAppeals, 700 S.W.2d 916
     (Tex. 1985) ...................................... .... 2, 7, 14, 23

K-Mart v. Sanderson, 937 S.W.2d 429
     (Tex. 1996) ...................................... ..... 2, 8, 9, 24

Loftin v. Martin, 776 S.W.2d 145
       (Tex. 1989) ...................................... .......... 2, 8

Ordonez v. M W McCurdy & Co., Inc., 984 S.W.2d 264
     (Tex. App. -Houston [1st Dist.] 1998) .......................... 20

United States Fidelity v. Rossa, 830 S.W.2d 668
      (Tex. App.- Waco 1992, writ denied) ........................... 18

Wackenhut Corp. v. Gutierrez, No. 12-0136,2015 Tex. Lexis 112
     (Tex. 20 15)(publication status pending) ........................ 21, 22

Walker v. Packer, 827 S.W.2d 833
     (Tex. 1992) ...................................... ......... 2, 20

Wal-MartStores, Inc. v. Johnson, 106 S.W.3d 718
     (Tex. 2003) ...................................... ........... 23

West v. Solita, 563 S.W.2d 240
      (Tex. 1978) ...................................... ........... I 0




                                     -IV-
STATUTES


TEX.R.CiV.PROC. 196.4 ................... ................... ...... 13

APPENDIX


     Notice of Clarification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A




                                                   -v-
                                I. ISSUES PRESENTED

ISSUE NO.1:
The trial court overruled some of Relator's overused objections of "fishing
expedition, vague, and overly broad" and ordered him to produce responsive
documents within certain limited categories. Was the trial court's ruling
commensurate with guiding principles of law?


ISSUE NO.2:
Relator requested production of emails that Real Party in Interest created using a
computer that Relator now possesses; Real Party in Interest requested production of
electronic and magnetic data potentially housed on that same computer. The trial
court entered an order of instruction to control the method by which electronic data
was retrieved and disclosed, and directed the parties to split the associated cost. Did
the trial court properly exercise its discretion?


ISSUE NO.3:
Did the trial court appropriately exercise its discretion when it denied Relator's
request for a default judgment due to spoliation of evidence?




                                          -1-
                               II. STANDARD OF REVIEW


       A relator who attacks a trial court ruling citing abuse of discretion labors under

a heavy burden. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.

1985). Relator must show that the trial court's action was so arbitrary and

unreasonable as to amount to a clear prejudicial error oflaw. Loftin v. Martin, 776

S.W. 2d 145, 146 (Tex. 1989). In other words, he must show that no judge could

have reasonably made the same rulings that the trial court did. See Johnson, 700

S.W.2d at 917.

       In evaluating the trial court's rulings, this Court cannot substitute its judgment

for that of the trial court, nor can it disturb a trial court decision that is based upon a

fact issue unless that decision is arbitrary and unreasonable. Walker v. Packer, 827

S. W.2d 833, 839 (Tex. 1992).

                          III. SUMMARY OF THE ARGUMENT


       Relator did not meet his burden to show that the trial court's actions in

overruling his voluminous and obfuscating objections and compelling production was

so arbitrary and unreasonable so as to amount to a clear and prejudicial error oflaw.

The trial court's ruling was directly in line with Texas Supreme Court case K-Mart

v. Sanderson, 937 S.W.2d 429 (Tex. 1996). The trial court's judgment was neither




                                            -2-
erroneous nor arbitrary and unreasonable, and therefore was not an abuse of

discretion.

      Relator has also failed to show how the trial court abused its discretion in

ordering the pmiies to share in the cost of submitting the decedent's computer to a

forensic expert for the retrieval of documents responsive to the requests for

production that each party propounded. The trial court's actions were in line with

Texas Rule of Civil Procedure 196.4.

      Finally, the trial court's refusal to enter a spoliation order striking Real Party

in Interest's pleadings and granting a default judgment was neither arbitrary nor

unreasonable; it was an appropriate application of the standards enunciated by the

Texas Supreme Court in Brookshire Bros., based upon the facts and circumstances

of this case. Relator had not shown otherwise.

                             IV. STATEMENT OF FACTS

      Edwin Dennis Cook ("Decedent") died on July 10, 2011, and less than a month

later the trial court appointed an Independent Executor of his Estate. (Tab 5). The

Independent Executor immediately inventoried the Decedent's safe and made a video

recording of the contents. (Tab 5). The Independent Executor elected not to take

possession of the coins in the safe that have become the issue in the underlying suit
(the "Coins"), and instead left them there until April2012. 1 (Tab 5). Four months

after collecting the Coins, the Executor filed suit against Real Party in Interest

asserting various causes of action premised upon the allegation that Real Party in

Interest stole some of the Coins.

       In December 2012, the Executor served discovery upon Real Party in Interest

who returned his responses to his attorney, Jeff Crews, within 30 days. (Tab l(a)(ii)).

Mr. Crews timely served responses to requests for admissions, but absolutely failed

to serve responses to interrogatories or requests for production despite possessing

Real Party in Interest's answers. (Tab I (a)(ii)). He thereafter failed to respond to the

Executor's Motion to Compel Discovery, and failed to attend the hearing thereon,

which resulted in the entry of an order compelling the responses and imposing

sanctions including the waiver of all objections. (Tab I (a)(ii)). Real Party in Interest

did not know about this Motion or Order. (Tab l(a)(i) 70:18-71: 16; 76:5-16).

       Mr. Crews's failures were compounded by the Executor's failure in connection

with its Motion for Contempt: a failure to serve citation on Real Party in Interest as

is required by law. 2 (Tab l(a)(ii)). Despite depriving Real Party in Interest of his


        'Real Pmiy in Interest disputes the assertion that there was a discrepancy in the number of
coins maintained in the safe by the Decedent at the time of his death and the number of coins that
the Independent Executor took possession of in April 2012.
       2
        Due process requires that full and unambiguous notice of an accusation of contempt be
served on the alleged contemnor in a motion for contempt, show cause order, or equivalent legal

                                                -4-
right to know that his attorney was failing to do his job and depriving Real Party in

Interest of his right to protect his legal interests, the Executor moved forward on its

contempt action and succeeded in having all of Real Party in Interest's pleadings

stricken- without the existence of any answer or argument to the contrary. (Tab 7).

       Mr. Crews managed to remain unaware of the Contempt Order, and ultimately

served Real Party in Interest's Responses to Interrogatories and Responses to

Requests for Production in May of 2013, using the information that Real Party in

Interest had timely provided in January of that year. (Tab l(a)(ii)).

       The combined failures ofMr. Crews and the Executor relating to discovery and

citation ultimately led to the entry of a default judgment against Real Party in Interest.

(Tab 8). Real Party in Interest hired new counsel to represent him in seeking a new

trial, and eventually the death penalty sanctions and default judgment were set aside.

(Tab 9). Relator's contempt motion was reheard, and discovery sanctions were

entered against Real Party in Interest and Jeff Crews. (Tab I 0). Real Party in Interest

has since fully answered all of the discovery served upon him by producing all

documents within his custody and control. (Tab I (a)(iii)).


process stating how, when, and by what means the party has been guilty of the alleged contempt.
In reAcceptance Ins. Co., 33 S.W.3d 443,448 (Tex. App.- Fort Worth 2000, no pet.)(citing
Cadle Co. v. Lobingier, 34 S.W.3d 598, 2000 Tex. App. LEXIS 6737, 2000 WL 797442, *I
(Tex. App.- Fort Worth October 5, 2000, no pet. h.); Ex parte Chambers, 898 S.W.2d 257, 262
(Tex. 1995)); see also In re Houston, 92 S.W.3d 870, 876 (Tex. App.- Houston [14'" Dist.]
2002. orig. proceeding).

                                              -5-
       Real Party in Interest served discovery upon Relator who responded with so

many objections as to make his responses useless. (Tab 2(a)(ii)). Real Party in

Interest filed a Motion to Compel which was granted in part (Tab 2); Relator now

complains that the trial court abused its discretion in ordering the production of

certain categories of documents.

      Real Party in Interest also filed a Motion for Instruction after no agreement

could be reached between he and Relator regarding how electronic information

responsive to discovery requests propounded by both parties should be removed from

the Decedent's computer. (Tab 3(a)). The trial court entered an order directing how

the information was to be retrieved and distributed, and dividing the cost equally

between the parties. (Tab 3). The trial court reserved the right to reassess cost. (Tab

3 ). Relator claims this was an abuse of discretion.

      Relator filed a Motion for Discovery Abuse Sanctions: Spoliation, asking the

trial court to strike Real Party in Interest's pleadings, to enter a default judgment

against him, and to levy additional monetary sanctions against him. (Tab I). The

trial court, with the benefit of having heard live testimony from Real Party in Interest

regarding his actions and intentions denied the requested relief. Relator complains

that the trial court abused its discretion by not issuing death penalty sanctions for the

same discovery disputes it had already adjudicated.

                                           -6-
                        V. ARGUMENTS AND AUTHORITIES

ISSUE No. I:
      The trial court overruled some of Relator's overused objections of
      "fishing expedition, vague, and overly broad" and ordered him to
      produce responsive documents within certain limited categories. Was
      the trial court's ruling commensurate with guiding principles oflaw?

      In order to be entitled to mandamus relief on this issue, Relator bears the

burden of showing that the trial court acted without regard to accepted legal

principles -that its rulings were so arbitrary and unreasonable that no other court

could have reached the same determination. See Johnson, 700 S.W.2d at 917.

Relator did not meet this burden.

      Relator cites only to Loftin v. Martin in support of his assettion that the

Requests for Production propounded by Real Party in Interest were vague and an

overly broad fishing expedition. See Petition at p. 19. Loftin, however, does not

establish that the trial court acted without regard to controlling law, nor that the

Requests at issue were overly broad or a fishing expedition. A request is "overbroad"

if it encompasses time periods, products, or activities beyond those at issue in the

case, and therefore not reasonably tailored to include only relevant matters. In re

Alford Chevrolet-Ceo, 997 S.W.2d 173, 180 n.l (Tex. 1999)(original proceeding).

A "fishing expedition" is exemplified by requests for information that are not

reasonably tailored as to time, place, or subject matter. In re CSX Corp., 124 S.W.3d

                                         -7-
149, 152 (Tex. 2003). Requests of these nature are impennissible, hence the Loftin

decision that a general request for all documents that supported a claimant's

allegations was impermissible. Loftin, 776 S.W.2d at 148. The Loftin court found

that the request did not identifY "any particular class or type of documents." !d.

      By contrast, the requests at issue in this case sought specific classes of

documents- not generically "documents supporting Relator's allegations" without

further limitation. (Tab 2(a)(ii)). Real Party in Interest sought documents directly

relating to the Coins made the subject of Relator's suit: the Decedent's receipt of

them, the Decedent's transport of them, Real Party in Interest's alleged theft of them,

and the like. (Tab 2(a)(ii)). After its Loftin decision, the Texas Supreme Court

definitively ruled that requests for documents in articulated categories are

permissible.

      InK-Mart Corp. v. Sanderson, the Texas Supreme Court analyzed a request for

all documents which related to, touched, or concerned the allegations of the lawsuit,

and all documents reflecting the incident made the basis of the suit. 937 S.W.2d at

430. The defendant objected that the requests were overly broad and would require

it to turn over its entire file, and cited to Loftin just as Relator has done. !d. The

Court affirmed the trial court's production order, finding that the request for all

documents related to a specific incident and that a reasonable person could

                                          -8-
understand from the request what documents were responsive. !d. at 430-31.

      The trial court's ruling was appropriate under K-Mart, especially in light of the

fact that Real Party in Interest's requests were more specific than the ones considered

by the Texas Supreme Court. The ruling is also consistent with this Court's decision

in In re Dow Agrosciences, LLC, wherein requests for all documents in various

categories were only limited by this Court to exclude patents not defined within the

parties' settlement and license agreements; the requests were not characterized as

overbroad or a fishing expedition simply because they sought all documents within

specified categories. 20 II Tex. App. Lexis 723 (Tex. App. -Houston [ 14'11 Dist.]

20 II, orig. proceeding).

      There cannot be - and in fact has not been - any argument that Relator is not

able to determine what documents are responsive or that the categories of documents

sought are not related to the causes of action plead. Relator only argues that he would

somehow be required to allow Real Pm1y in Interest to peruse his entire evidence file.

See Petition at p. 20. This rather dramatic argument reveals Relator's true motivation:

he does not want to produce documents that evidence his claim- or potentially reveal

that he has none. The United States Supreme Court, however, has made clear that a

party cannot hide behind objections to avoid producing evidence. It held in Hickman

v. Taylor that discovery rules are to be accorded liberal treatment. 329 U.S. 495, 507

                                          -9-
(1947). A party cannot cry "fishing expedition" to preclude a party from inquiring

into the facts underlying his opponent's case. !d. In Texas, discovery requests are

to be viewed with a liberal spirit. Hill & Griffith Co. v. Bryant, 139 S.W.3d 688, 698

(Tex. App.- Tyler 2004, pet. denied). This liberal spirit is commensurate with the

stated purpose of discovery in Texas: to allow the parties to obtain full knowledge of

the issues and facts before trial. West v. So/ito, 563 S.W.2d 240, 243 (Tex. 1978).

The objective of discovery is to prevent trial by ambush. Gutierrez v. Dallas JSD,

729 S.W.2d 691,693 (Tex. 1987).

       Relator now asks this Court to undermine the trial court's ruling in order to

allow him to engage in a trial by ambush- iJTespective of the laws promulgated by the

Supreme Courts of both the United States and Texas. If one followed Relator's logic,

Real Party in Interest would have to somehow intuit precisely what documents exist

in support of Relator's claim and ask for them by name. This, despite the fact that

Real Pmiy in Interest is innocent of the charges levied against him and has no idea

what documents Relator might rely on. If Relator has evidentiary support for his

claims, he will undoubtedly use it at trial; Real Pmiy in Interest is entitled to discover

that proof before the trial.

       Moreover, Real Party in Interest would have to ensure that he used the same

label for the document that Relator employs to ensure turnover; that fact is

                                           -10-
exemplified by the fight over Request for Production 23. Real Party in Interest

requested "the Decedent's personal calendar, appointment book, or other records that

demonstrate where the Decedent was on any given day during the year 20 II." (Tab

2(a)(ii)). Relator objected as "irrelevant, overly broad, vague and not reasonably

calculated to the discovery of admissible evidence" and a fishing expedition that

would require him to produce "a soil sample from [the Decedent's] shoe or anything

else the imagination can conjure." (Tab 2(a)(ii)). Real Party in Interest included the

phrase "other records" to guard against a linguistic fight - what he might call a

calendar, Relator might call a day-planner, or something unknown to Real Party in

Interest. (Tab 2(a)). This concern was well-founded; Relator's twisting that into a

request for a "soil sample" reveals his obfuscating and demonstrates the need for the

word "documents" in Real Party in Interest's requests. Focusing on the category of

documents needed- as permitted by the Texas Supreme Court inK-Mart- guards

against the nitpicking and avoiding in which Relator engages.

      The trial comi' s production order does nothing more than allow Real Party in

Interest to obtain information about the claims against him. It is appropriate under

West, Gutierrez, and K-Mart, and does not constitute a ruling that is so far afield from

abiding rules of law that it amounts to abuse of discretion.




                                          -11-
ISSUE No.2:
      Relator requested production of emails that Real Party in Interest created
      using a computer that Relator now possesses; Real Party in Interest
      requested production of electronic and magnetic data potentially housed
      on that same computer. The trial court entered an order of instruction
      to control the method by which electronic data was retrieved and
      disclosed, and directed the parties to split the associated cost. Did the
      trial court properly exercise its discretion?

      Relator requested that Real Party in Interest produce "the complete email

contents of the Inbox, sent items, deleted items (or trash folder)" for any email

account owned by Real Party in Interest from January 1, 2010 forward. (Tab l(a)(i)

32:2-7). Despite the fact that this discovery request was not tailored narrowly to only

seek emails that would be relevant to the purported theft that occurred between

August 2011 and April 2012, Real Party in Interest was forced to respond in full

because his attorney's negligence resulted in the waiver of his objections. (Tab I 0).

Real Pa1iy in Interest had used the Decedent's computer to generate emails because

it was in the house he shared with Decedent (who was still alive in 201 0) and because

it gave him the ability to attach scanned documents to his emails. (Tab I (a)(i) 29: 1-

4). Relator took possession of that computer, which precludes Real Party in Interest

from taking any unilateral action to obtain the emails from Outlook. (Tab 7).

      Admittedly, Real Party in Interest deleted the emails from Outlook because

they contained sensitive banking information, and thus they must be retrieved from



                                         -12-
the hard-drive by a forensic expert, but the issue of where on the computer the data

is stored is distinct from the issue of how data from a computer in Relator's exclusive

possession should be obtained, authenticated, and produced. "How" would be an

issue irrespective of whether Real Party in Interest's emails were maintained in

Outlook, moved to the trash folder, housed in advertised folders on the desktop, or

hidden away in a password-protected file. "How" is also an issue with respect to any

documents responsive to the Requests for Production propounded by Real Party in

Interest; the same forensic examiner is the appropriate person to obtain and

authenticate that electronic data.

      The trial court's order effectuates a method by which any data responsive to

both parties' Requests for Production can be obtained and disseminated and the

authenticity of that data verified. (Tab 3). Relator takes issue with the trial court's

order that the parties split the cost- an order subjected to a reservation allowing the

trial court the ability to reassess the cost later in the proceeding. (Tab 3). The trial

court's order is commensurate with Texas Rule of Civil Procedure 196.4, which taxes

the cost of extraordinary measures to obtain data against the party requesting the data.

TEX. R. CIV. PROC. 196.4. Relator has requested emails that Real Party in Interest

generated on the computer that Relator has possession of; he will not give Real Party

in Interest access to the computer, so extraordinary measures are necessary to obtain

                                          -13-
the requested data. Texas Rule of Civil Procedure 196.4 taxes him with the cost of

those extraordinary measures. Similarly, Real Party in Interest has sought documents

on the computer and after Relator gave no indication that he would produce any

responsive documents maintained electronically, the trial court provided a framework

by which that data could be obtained, and taxed Real Party in Interest with the cost.

       The trial court acted in accord with Texas Rule of Civil Procedure 196.4, and

with the demands of logic. Relator has not met his burden to show that no other

judge could reasonably conclude that the trial court's ruling made sense. See

Johnson, 700 S. W.2d at 917. He has offered absolutely no case law to demonstrate

that the trial court's ruling was arbitrary, and instead premises his argument on what

he suspects Real Party in Interest would have retrieved from the Decedent's computer

had he been given the right to physically inspect the same.          Petition at p. 23.

Suspicions are not an appropriate legal basis on which to seek mandamus relief,

especially when no part of the trial record supports the idea that Real Party in Interest

requested access to the computer to obtain his own "personal information." Petition

at p. 23.

       Nor are invented facts an appropriate basis; Relator advises this Court that Real

Party in Interest deleted the Decedent's information from the computer, but fails to

cite to the record for evidence of that. Petition at p. 23. Real Party in Interest

                                          -14-
testified only to deleting emails he created and to deleting the Decedent's junk mail

for space concerns- an action Relator's attorney seemed to sanction. (Tab l(a)(i)

33:20-35:16). Relator has misrepresented that testimony to this Court through his

argument that documents responsive to Real Party in Interest's discovery cannot be

retrieved "due to defendant's actions in deleting the infonnation." See Petition at p.

24. His misrepresentations do not entitle him to mandamus relief, nor do fabricated

reasons that did not form the basis for the trial court's ruling like "recovery of

personal information." Mandamus only issues when there is a clear right; if that right

is premised upon facts that are doubtful or disputed, mandamus cannot issue. See

Dow Chern. Co. v. Garcia, 909 S.W.2d 503, 505 (Tex. 1995). No mandamus is

appropriate on this issue.

ISSUE   NO.3:
        Did the trial court appropriately exercise its discretion when it denied
        Relator's request for a default judgment due to spoliation of evidence?

        Relator complains that the trial court denied his Motion for Discovery Abuse

Sanctions: Spoliation.       This Comi must review that ruling under an abuse of

discretion standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). Relator

thus must establish that the trial court's decision not to (a) strike Real Party in

Interest's pleadings, (b) enter a default judgment against Real Party in Interest, and

(c) award monetary sanctions, deviated so far from the standards promulgated in

                                          -15-
Brookshire Bros., that no other court could have reached the same determination.

(Tab !(a)); Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014). Relator has

not even come close to can-ying that heavy burden.

      Specific intent is a requisite for a spoliation finding. See Brookshire Bros., 438

S.W.3d at 14. Although he repeatedly uses the word "intentional" to describe Real

Party in Interest's deletion of email, he cites to no evidence that demonstrates that

Real Party in Interest deleted emails with the specific intent of concealing

discoverable evidence. See Petition at p. 13; Brookshire Bros., Ltd., 438 S.W.3d at

14. Without evidence of this requisite "specific intent" Relator's argument that the

trial court deviated from law absolutely fails. !d.

      In Brookshire Bros., the Texas Supreme Comi clarified the standards

governing whether an act of spoliation has occurred and the parameters of a trial

court's discretion to impose a remedy. !d. To conclude that a pmiy spoliated

evidence, the court must find that (I) the spoliating party had a duty to reasonably

preserve evidence, and (2) the pmiy intentionally or negligently breached that duty

by failing to do so. !d.

      No Duty to Preserve

      Relator bore the burden of establishing that Real Party in Interest had a duty

to preserve the full contents of his email, for a period beginning two years before suit

                                          -16-
was filed and going forward. Brookshire Bros., 438 S.W.3d at 20; (Tab l(a)(i) 32:2-

7; Tab 5). Such a duty arises "only when a party knows or reasonably should know

that there is a substantial chance that a claim will be filed and that evidence in its

possession or control will be material and relevant to that claim." !d. It is an absolute

requisite that the accused knew or should have known that the evidence would be

relevant and material to the claim at issue. !d. Relator thus bore the burden of

showing that:

       •       Real Party in Interest knew that Relator would sue him; and

       •       knew that his personal emails 3 would be material and relevant to the
               claims against him.

       The record contains absolutely no indication, much less evidentiary proof, that

Real Party in Interest had any inkling that Relator would sue him. It is also bereft of

evidence or testimony that Real Party in Interest knew that his personal emails,

including those written years before the purported theft, could be material and

relevant to trumped up claims that would be brought years later. Realtor offered no

evidence to the trial court to demonstrate that the lost emails are either material or




       3
          Relator expands the scope of his Petition for Mandamus to include ""financial records"
but his Motion for Spoliation only addressed emails. (Tab l (a)). Real Party in Interest has
produced all of his bank records in compliance with Relator's requests for production. (Tab
1(a)(iii)); Appendix A.

                                               -17-
relevant to his claims. (Tab I (a)). Relator currently offers this Court no evidence that

the lost emails are material or relevant. See Petition at p. 15.

       He instead attempts to offend this Court's sensibilities by insinuating that Real

Party in Interest has destroyed financial records- a falsity, and one not part of his

Motionfor Discovery Sanctions: Spoliation. (Tab 1(a)). It has been routinely stated

that "courts 'must be on guard against confusing offenses to their sensibilities with

obstruction of the administration ofjustice."' Ex parte Gibson, 811 S. W.2d 594, 596

(Tex. Crim. App. 1991, no writ) (quoting Brown v. United States, 356 U.S. 148, 153

( 1958)). To this end, courts must resolve all doubts in favor of reaching a trial on the

actual merits of the case. Hanley v. Hanley, 813 S.W.2d 511, 518 (Tex. App.           ~


Dallas 1991, no pet.); United States Fidelity v. Rossa, 830 S.W.2d 668, 671 (Tex.

App.   ~Waco    1992, writ denied). Relator also asks this Court to assume that Real

Patiy in Interest's "communications" are both "material and relevant" to his claims.

Petition at p. 15. Assumptions are not facts, and a trial court's refusal to enter

sanctions based on assumptions does not amount to an abuse of discretion.

       This Court may affirm the trial cou11's ruling on this prong of the test alone;

there can be no spoliation finding without proof that Real Pmiy in Interest knew that

the emails would be material and relevant to a claim that he did not and could not

have known would be brought against him.

                                          -18-
      Breach o(Duty

      The trial court's ruling can also be affirmed on the basis that Relator did not

meet his burden of proving that Real Party in Interest intentionally breached his duty.

Brookshire Bros., 438 S.W.3d at 20. (The party seeking a remedy for spoliation must

demonstrate that the other party breached its duty to preserve material and relevant

evidence.). A party must intentionally spoliate evidence in order for a spoliation

instruction to constitute an appropriate remedy. !d. at 23. Thus, Relator was required

to prove that Real Party in Interest acted with an "intent to conceal or destroy

discoverable evidence." !d.

      While being examined by Relator's counsel, Real Party in Interest admitted to

deleting emails from his web-based mail program as a matter of course, testifying that

he had done so for years. (Tab l(a)(i)32:12-22). The trial court is the judge ofhis

credibility, and this Court cannot substitute its judgment. Burchfield v. Tanner, 178

S.W.2d 681 (Tex. 1944). Nor should this Comi be mislead by Relator's rendition of

the testimony; Real Party in Interest admitted to deleting emails from the Decedent's

computer that contained his personal banking information because he did not trust

Relator's counsel, who ultimately took possession ofthat computer. (Tab I (a)(ii)33 :2-

5). His testimony dispels the idea that the destruction was done to "conceal or

                                         -19-
destroy discoverable evidence," instead demonstrating that Real Party in Interest's

true concern was to protect his banking information from persons he did not trust.

The actions may have been ill-advised, but bad decisions are not evidence of the

specific mens rea called for by Brookshire Bros. That evidence is absent from the

record.

       Refusal of a spoliation instruction without proof of intent is appropriate under

Ordonez v. M W. McCurdy & Co., Inc., 984 S.W.2d 264 (Tex. App.- Houston [P'

Dist.] 1998). There the defendant driver testified that he threw away his log book,

despite potentially being on notice about the claim, and the plaintiff argued that he

"intentionally destroyed" the same to avoid its discovery. !d. at 273-7 4. Evidence

showed that it was the normal course of business for the defendant to keep log books

for a period of six months. !d. There was no evidence in that case that the log books

were destroyed for the purpose of concealing them from the plaintiff. !d. The trial

comi did not en· in refusing a spoliation instruction. !d. Despite Relator's assertion

to the contrary, a finding by the trial court that the requisite intent was absent is not

"unreasonable" - it is in line with Ordonez. It is also a factual finding not to be

disturbed via mandamus. See Walker, 827 S.W.2d 839.

      The only way that Relator could have avoided establishing that Real Party in

Interest acted with this specific nefarious intent would have been through a showing


                                          -20-
that Relator was deprived of any meaningful opportunity to present his case.

Brookshire Bros., 438 S.W.3d at 25. Relator did not offer such proof at the trial court

level. To the contrary- he offered as evidence at the contempt hearing the very

emails that Real Party in Interest had created on the Decedent's computer after

scavenging from the computer hard-drive. (Tab I ( a)(ii)). The only thing that would

prevent Relator from presenting those recovered emails at trial in support of his

claims is their abject irrelevance. Moreover, the trial court was well within its

discretion to determine that Relator's access to Real Party in Interest's bank records,

testimony, and whatever evidence it maintains in its so-called "evidence file" will

allow Relator to put on his case in chief. See Petition at p. 20 (reference to evidence

file).

         One certainly would hope that Relator did not file suit against Real Party in

Interest with no evidence of wrongdoing and only the hope of finding proof of

wrongdoing in his emails; that would be the very definition of a prohibited fishing

expedition. For the trial court to give Relator the benefit of the doubt as to the

existence of other evidence is generous - hardly grounds for the mandamus that

Relator seeks. It is, instead, in line with the Texas Supreme Court's decision in

Wackenhut Corp. v. Gutierrez, wherein the defendant allowed a video tape that may

have recorded the accident to be destroyed. No. 12-0136, 2015 Tex. Lexis 112 (Tex.

                                          -21-
20 15) (publication status pending). The Texas Supreme Court found that because the

plaintiff had other evidence available to him he was not "irreparably deprived of any

meaningful ability to present his claim." !d. at* II. A spoliation instruction was not

appropriate. !d. It is similarly not appropriate in this case; the trial court ruled

correctly.

      Even if the trial court had found an intentional spoliation of relevant evidence,

Relator did not show at trial and has not addressed with this Court the other issues

which must be considered in a spoliation ruling, including:

      •      the relevance of the evidence to key issues;

      •      harmfulness or helpfulness of the evidence; and

      •      whether the evidence is cumulative of other competent evidence that
             may be used instead of the destroyed evidence.

Brookshire Bros., Ltd., 438 S.W.3d at 22-23. Without evidence addressing these

points, the trial court correctly denied the spoliation motion; without evidence

addressing these points, Relator has failed to show he is entitled to mandamus relief.

      Finally, at both the trial com1 level and in his mandamus action, Relator has

failed to evidence his entitlement to a spoliation order (a) striking Real Party in

Interest's pleadings; (b) instituting a default judgment against him; and (c) awarding

additional monetary sanctions against him. (Tab !(a)). Ce11ainly Brookshire Bros.,



                                         -22-
does not authorize the entry of a default judgment for a spoliation issue; in fact it

characterizes a spoliation instruction as a "harsh" remedy and cautions against the

impact the instruction can have on the fundamental fairness of a trial. !d. at 17.

Remedies for spoliation are supposed to be designed to "restore the parties to a rough

approximation of their positions if all evidence were available." Wal-Mart Stores.

Inc. v. Johnson, I 06 S. W.3d 718, 721 (Tex. 2003 ). None of the remedies solicited by

Relator in his spoliation motion would have restored the parties to the positions they

occupied if Real Party in Interest's emails still existed. Had he produced emails from

2010 (prior to the Decedent's death and prior to the purported theft) Relator would

have been possessed of some irrelevant documents- not a default judgment. Relator

sought relief far in excess of a restoration of the status quo, and the trial court did not

abuse its discretion in denying it.

                                    VI. CONCLUSION

       The Texas Supreme Court has spoken to almost all the issues raised in this

Petition for Mandamus. First, with respect to the mandamus itself, the Court has said

that a relator who attacks a ruling for an abuse of discretion labors under a heavy

burden and must establish that the facts and law only permit one decision. Johnson,

700 S. W.2d 91 7. Under this standard, Relator was required to prove the arbitrariness

and unreasonableness of the trial court's actions with respect to his three mandamus

                                           -23-
points. InK-Mart Corp., the Court opined that asking for all documents within a

certain category was acceptable and did not amount to a demand that the respondent

turn over his entire file since a reasonable person would be able to read the request

and determine what was responsive. K-Mart Corp., 937 S.W.2d at 430. The trial

court's actions were appropriate under this standard. Though the Texas Supreme

Court has not addressed the allocation of costs under Texas Rule of Civil Procedure

196.4, the statute is clear and the trial court's balancing of costs against both parties

who seek electronic data from the same computer, coupled with its reservation to

reassess cost, demonstrate compliance with the controlling law. Finally, there is the

issue of spoliation about which the Texas Supreme Court has recently spoken at

length. The trial court's decision not to grant Relator's Motion for Discovery Abuse

Sanctions: Spoliation, which sought relief far in excess of a restoration of the status

quo, was appropriate under Brookshire Bros., Wai-Mart Stores, Inc., and Wackenhut.

      Direct legal authority not only authorized the trial court's conclusions, but

mandated them; there was no abuse of discretion in the rulings about which Relator

complains, and mandamus should not issue.

      WHEREFORE, PREMISES CONSIDERED, Real Party in Interest, Ray

Moghaddam, asks the Court to deny Relator's Petition for Writ ofMandamus, award




                                          -24-
him fees and costs, and grant him such other and further relief to which he may show

himself entitled.




                                               Respectfully submitted,

                                               ostrommorris, PLLC        .


                                               ~~:<a/\_0--d-
                                               B   .       ·-···'
                                                       ASON B. OSTROM
                                                   (TBA #2402771 0)
                                                   NICOLE SAIN THORNTON
                                                   (TBA #24043901)
                                                   6363 Woodway, Suite 300
                                                   Houston, Texas 77057
                                                   713.863.8891
                                                   713.863.1051 (Facsimile)
                                                   jason@ostrommorris.com
                                                   ni co le@ostrommoJTis. com

                                               Attorneys for Real Party in Interest,
                                               Ray Moghaddam




                          CERTIFICATE OF COMPLIANCE

     I certifY that the Response to Petition for Writ of Mandamus was created on a
computer and contains 5,752 words.




                                        -25-
                           CERTIFICATE OF SERVICE


            I do hereby certify that a true and correct copy of the foregoing
forwarded in compliance with the Texas Rules of Appellate Procedure on the :2'1~
day of ~obow,rlj           2015 to:

      Mr. Micah Fortson, III
      2702 Jackson Street
      Houston, Texas 77004
      713.533.1520
      713.533.1571 (Facsimile)

     Mr. Jeffrey Crews
     1314 Texas Ave., Suite 1120
     Houston, Texas 77002
     713.228.2100
     713.228.2101 (Facsimile)


                                             JaSon B. Ostrom
                                             Nicole Sain Thornton




                                      -26-
                              APPENDIX

Notice of Clarification ...................................... ....... A
                                                                                                                                               FILED
                                                                                                                               211912015 5:35:41 PM
                     .,                                                                                                                Stan Stanart
                                                              DATA-ENTRY                                                               County Clerk
               DV                                             PICK UP THIS DATE                                                       Harris County


                                                                                                                    PROBATE COURT 4
                                                             CAUSE No. 406,325-401

                                                                         §                                  IN THE !'ROBATE COURT
                          IN TilE ESTATE OF
                                                                         §
                          EDWIN DENNIS COOK,                             §                                    NUMBER FOUR (4) OF
                                                                         §
                                                                         §                                  HARRIS COUNTY, TEXAS
                          DECEASED


                                                      NOUCE OF CLARfFY!NQ Aff!DAYJI

                          To 1HE HONORABLE COURT:

                                 PLEASE TAKE NOUCE that the Affidavit ofRaham Moghaddam clarifying testimony he
                          gave on July tO. 2014, attached hereto as Exhibit A, is being filed in accordance with the Texas
                          Rules of Civil Procedure.

                                                                      Respectfully submitted,

                                                                      ostr
                                                                                       rn_,0M-
                                                                      ,..~As"'o"'N"s~.~o::.s~TR2o>:M::..:
                                                                             (TBA #2402771 0)
                                                                             iason@ostrommorris.com
                                                                             R. KEITH MORRIS, ill
                                                                             (TBA #24032879)
                                                                             keith@ostrmnmonis com
                                                                             6363 Woodway, Suite 300
                                                                             Houston, Texas 77057
                                                                             713.863.8891
                                                                             713.863.1051 (Facsimile)




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 2/24/2015
Stan Stanart, County Clerk
Harris County, Texas




       Consuela Arroyo
                                                           CERTIFICATE OF SERVICE


                                       I do hereby certifY that a true and correct copy of the foregoing was served in
                         accordance with Rules 21 and 21 on the ...lL day of           r'b'7       2015 to:

                                Mr. Micah Fortson, III
                                2702 Jackson Street
                                Houston, Texas 77004
                                713.533.1520
                                713.533.1571 (Facsimile)

                                Mr. Jeffrey Crews
                                1314 Texas Ave., Suite 1120
                                Houston, Texas 77002
                                713.228.2100


                                                                                      ~7?c;f2
                                713.228.2101 (Facsimile)               ___.. ..   ~                      /




                                                                    c:___
                                                                              1
                                                                                           ~/J=----
                                                                                     on B. Ostrom
                                                                                  Nicole Sain Thornton




      Confidential information may have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 2/24/2015
 Stan Stanart, County Clerk
 Harris County, Texas



..Ltl~lQI.U.lm.,Ql~L~Qhr~!ANw:=:...:::..:...~rY-Deputy
        Consuela Arroyo
                         STATE OF TEXAS                   §
                                                          §
                        COUNTY OF HARRIS                  §


                                                      AFFIDAVIT OF RAHMAN MOO HADDAM

                                    Came on Rahman Moghaddam who being duly swam by me, on his oath deposed as follows:

                               My name is Raham Moghaddam. I am over the age of 18 years, of sound mind, capable of
                         making this affidavit, and personally acquainted with the facts stated herein which are true and
                         correct.

                                    On July 10, 2014, I testified in Harris County Probate Court Number Four in connection with
                         the Estate of Edwin Dennis Cook, Deceased. While being examined by Micah Fortson, I testified
                         I did not leave any bank accounts out of my answer to Interrogatory Number One at the time I
                         answered it. I did not include any Iranian bank accounts in my answer to Interrogatory Number One
                         nor in my live recitation of bank accounts because I do not own any Iranian bank accounts.

                                 Later in questioning, I testified to making wire transfers from my bank account to the bank
                         account of another individual within the United States. These transfers were done with the
                         agreement that a similar transaction would occur in Iran with Iranian Toman, and that no United
                         States Dollars would ever leave the United States. This testimony has been construed as meaning
                         that Toman would be deposited in my bank account in Iran. That is not correct; l do not have a bank
                         account in Iran. The deposit in Iran was made into an account owned by my brother~inwJaw who uses
                         the monies to provide for my elderly mother's medical care and housing.

                                 Any testimony that I have an account in Iran is not accurate and I believe lack of clarity is
                         a result of the fact that English is not my first language.

                                    Further Affiant Sayeth Not.




                                SWORN TO and SUBSCRIBED before me, the undcrsigne                                 is J1'-day of
                         February, 2015.




                                                                    EXHIBIT

                                                              lA




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 2/24/2015
Stan Stanart, County Clerk
Harris Couuty, Texas




 "~llliK !Lvwr
         Consuela Arroyo
                                                         Deputy
