                                                                                     ACCEPTED
                                                                                01-14-00776-CV
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                           3/13/2015 6:10:37 PM
                                                                            CHRISTOPHER PRINE
                                                                                         CLERK

                         No. 01-14-00776-CV

              In the Court of Appeals                         FILED IN
                                                       1st COURT OF APPEALS

           for the First Judicial District
                                                           HOUSTON, TEXAS
                                                       3/13/2015 6:10:37 PM

                  Houston, Texas                       CHRISTOPHER A. PRINE
                                                               Clerk



                   SCHLUMBERGER LIMITED AND
             SCHLUMBERGER TECHNOLOGY CORPORATION,
                                        Appellants/Cross-Appellees,
                                   v.
                      CHARLOTTE RUTHERFORD,
                                        Appellee/Cross-Appellant.

                         On Appeal from the
                127th District Court at Houston, Texas


                 APPELLANTS’ REPLY BRIEF

Craig Smyser                       Sean D. Jordan
Land Murphy                          State Bar No. 00790988
Justin Waggoner                    Kent C. Sullivan
SMYSER KAPLAN & VESELKA, L.L.P.    Danica L. Milios
700 Louisiana Street, Suite 2300   Peter C. Hansen
Houston, Texas 77002-2700          SUTHERLAND ASBILL & BRENNAN LLP
[Tel.] (713) 221-2300              600 Congress Ave., Suite 2000
[Fax] (713) 221-2320               Austin, Texas 78701
                                   [Tel.] (512) 721-2679
                                   [Fax] (512) 721-2656
                                   sean.jordan@sutherland.com
                                   COUNSEL FOR APPELLANTS


                    ORAL ARGUMENT REQUESTED
                                     TABLE OF CONTENTS

Index of Authorities ......................................................................... iii 

Summary of Argument ...................................................................... 2 

Argument ........................................................................................... 5 

        I.       The Court Has Jurisdiction To Consider
                 Schlumberger’s Appeal. .................................................. 5 

        II.      The TCPA Does Not Apply to Schlumberger’s
                 Claims Against Rutherford............................................. 7 

                 A.      The TCPA Protects Public Communications
                         with a Nexus to Participation in
                         Government, Not Private Communications
                         for Commercial Gain. ............................................. 8 

                         1.       The TCPA should be construed
                                  consistent with the express purpose
                                  set forth in its text. ..................................... 10 

                         2.       The Cheniere Energy, Jardin, and
                                  Whisenhunt     decisions       do         not
                                  misconstrue the TCPA................................ 12 

                 B.      The TCPA Is Inapplicable Because
                         Schlumberger’s Suit Is Not Premised on
                         TCPA-Protected Communications. ..................... 15 

                         1.       Schlumberger’s suit does not implicate
                                  the   First   Amendment          concerns
                                  addressed by the TCPA. ............................. 16 

                         2.       Applying the TCPA to a broad array of
                                  claims unrelated to the statute’s
                                  purpose leads to unreasonable and
                                  absurd results. ............................................ 18 



                                                      i
        III.  Even Assuming the TCPA Applies, Schlumberger
              Met Its Evidentiary Burden To Prevent Dismissal
              of Its Claims. ................................................................. 21 

                 A.       The TCPA Imposes a Minimal Evidentiary
                          Burden on the Non-Movant. ................................ 21 

                 B.       Schlumberger Carried Its Evidentiary
                          Burden To Prove a Prima Facie Case with
                          Clear and Specific Evidence for Every Claim
                          Asserted Against Rutherford............................... 23 

                          1.       Breach of fiduciary duty ............................. 24 

                          2.       Misappropriation of trade secrets .............. 27 

                          3.       Conversion. ................................................. 30 

                          4.       Texas Theft Liability Act............................ 32 

        IV.  The Trial Court Abused Its Discretion in
             Awarding $350,000 in Attorneys’ Fees and
             $250,000 in Sanctions Against Schlumberger. ............ 34 

                 A.       Rutherford Failed To Segregate Her Fees as
                          Required by Texas Law. ...................................... 34 

                 B.       The Trial Court’s Award of Sanctions
                          Cannot be Reconciled with the Record. .............. 36 

Prayer ............................................................................................... 38 

Certificate of Service ....................................................................... 39 

Certificate of Compliance ................................................................ 40 




                                                        ii
                                INDEX OF AUTHORITIES
Cases 

Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson,
     209 S.W.3d 644 (Tex. 2006)............................................................... 6

Aviles v. Aguirre,
      292 S.W.3d 648 (Tex. 2009) (per curiam) ....................................... 12

BBB of Metro. Houston, Inc. v. John Moore Servs., Inc.,
    441 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) ... 14

Biopolymer Eng'r, Inc. v. ImmuDyne, Inc.,
     304 S.W.3d 429 (Tex. App.—San Antonio 2009,
     op. vacated pursuant to settlement) ............................................... 35

Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,
     489 U.S. 141 (1989) ......................................................................... 17

Casso v. Brand,
     776 S.W.2d 551 (Tex. 1989)............................................................. 29

Charalambopoulos v. Grammer,
    3:14–CV–2424–D, 2015 WL 390664 (N.D. Tex. Jan. 29, 2015) ..... 10

Cheniere Energy, Inc. v. Lotfi,
     449 S.W.3d 210
     (Tex. App.—Houston [1st Dist.] 2014, no pet.) ....................... 9, 14, 19

Cohen v. Cowles Media Co.,
    501 U.S. 663 (1991) ......................................................................... 17

Dolcefino v. Randolph,
     No. 14-00-00602-CV, 2001 WL 931112
     (Tex. App.—Houston [14th Dist.] 2001, pet. denied) ....................... 7

Freeman v. Schack,
     154 Cal. App. 4th 719 (Cal. App. 4 Dist. 2007) .............................. 18


                                                 iii
Grainger v. W. Cas. Life Ins. Co.,
     930 S.W.2d 609
     (Tex. App.—Houston [1st Dist.] 1996, writ denied) ....................... 30

Hyde Corp. v. Huffines,
     314 S.W.2d 763 (Tex. 1958)............................................................. 17

Jardin v. Marklund,
     431 S.W.3d 765
     (Tex. App.—Houston [14th Dist.] 2014, no pet.) .................. 9, 14, 16

Kinney v. BCG Attorney Search,
     No. 03–12–00579–CV, 2014 WL 1432012
     (Tex. App.—Austin Apr. 11, 2014, pet. denied) (mem. op.) ............. 7

KTRK Television, Inc. v. Fowkes,
    981 S.W.2d 779 (Tex. App.—Houston [1st Dist.] 1998, writ
    denied), rev’d in part on other grounds,
    Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000) .......... 7

Marks v. St. Luke’s Episcopal Hosp.,
    319 S.W.3d 658 (Tex. 2010)............................................................. 13

Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
    416 S.W.3d 71
    (Tex. App.—Houston [1st Dist.] 2013, pet. denied) ....................... 24

Paulsen v. Yarrell,
     No. 01–14–00351–CV, 2014 WL 7174259
     (Tex. App.—Houston [1st Dist.] Dec. 16, 2014, no pet.) .................. 5

R.J. Suarez Enters. v. PNYX, L.P.,
      380 S.W.3d 238 (Tex. App.—Dallas 2012, no pet.) ........................ 33

Rivers v. Johnson Custodial Home, Inc.,
     No. A-14-CA-484-SS, 2014 WL 4199540 (W.D. Tex. Aug. 22, 2014) ... 10

RRR Farms, Ltd. v. Am. Horse Prot. Ass’n, Inc.,
    957 S.W.2d 121
    (Tex. App.—Houston [14th Dist.] 1997, pet. denied) ..................... 30

                                              iv
Schimmel v. McGregor,
     438 S.W.3d 847
     (Tex. App.—Houston [1st Dist.] 2014, pet. filed) ............... 22, 24, 26

Smith v. Baldwin,
     611 S.W.2d 611 (Tex. 1980)............................................................. 12

St. Martin Evangelical Lutheran Church v. S. Dakota,
     451 U.S. 772 (1981) ................................................................... 10, 11

TGS–NOPEC Geophysical Co. v. Combs,
    340 S.W.3d 432 (Tex. 2011)............................................................. 13

T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc.,
     965 S.W.2d 18
     (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d)........................ 28

Tony Gullo Motors I, L.P. v. Chapa,
     212 S.W.3d 299 (Tex. 2006)............................................................. 35

U.S. Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton,
     171 Cal. App. 4th 1617 (Cal. App. 4 Dist. 2009) ............................ 18

West v. Schlumberger Tech. Corp.,
     234 F.3d 1279 (9th Cir. 2000) ......................................................... 37

Whisenhunt v. Lippincott,
     416 S.W.3d 689
     (Tex. App.—Texarkana 2013, pet. filed) .............................. 9, 10, 14

Statutes 

TEX. CIV. PRAC. & REM. CODE § 27.002 ............................................ 2, 8, 11

TEX. CIV. PRAC. & REM. CODE § 27.005(c) ................................................ 22

TEX. CIV. PRAC. & REM. CODE § 27.008(b) .................................................. 5

TEX. CIV. PRAC. & REM. CODE § 27.011 ..................................................... 11

TEX. CIV. PRAC. & REM. CODE § 27.011(b) ............................................ 2, 13

                                                v
TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12) ............................................ 5

TEX. GOV’T CODE § 311.023(3) .................................................................... 6

TEX. R. CIV. P. 97(a) ............................................................................ 20, 21

Other Authorities 

Senate Comm. on State Affairs, Engrossed Bill Analysis,
 Tex. H.B. 2935, 83d Leg., R.S. (2013) ..................................................... 6




                                                   vi
                        No. 01-14-00776-CV

              In the Court of Appeals
           for the First Judicial District
                  Houston, Texas
                   SCHLUMBERGER LIMITED AND
             SCHLUMBERGER TECHNOLOGY CORPORATION,
                                      Appellants/Cross-Appellees,
                                 v.
                      CHARLOTTE RUTHERFORD,
                                      Appellee/Cross-Appellant.

                        On Appeal from the
               127th District Court at Houston, Texas


                APPELLANTS’ REPLY BRIEF

TO THE HONORABLE FIRST COURT OF APPEALS:

     As its text and history make clear, the Texas Citizens’

Participation Act (TCPA) was never intended to protect private

communications for personal gain, like those involved here. And when

it does apply, the TCPA imposes only a minimal evidentiary burden on

the non-movant. Misconstruing both the scope of the TCPA and its

evidentiary standards, the trial court dismissed nearly every claim

asserted by Schlumberger against Rutherford. In so doing, the trial
court created troubling precedent. If the TCPA’s purpose will no longer

be consulted in determining its applicability, and rational inferences

from circumstantial evidence no longer allowed, the statute’s reach will

be constrained only by the creativity of counsel.         As this case

demonstrates, bizarre results will follow.

                       SUMMARY OF ARGUMENT
     When it enacted the TCPA, the Legislature included a “Purpose”

provision, making clear that the statute is intended to “encourage and

safeguard the constitutional rights of persons to petition, speak freely,

and otherwise participate in government to the maximum extent

permitted by law . . .” TEX. CIV. PRAC. & REM. CODE § 27.002. It also

commanded that courts must construe the statute “to effectuate its

purpose and intent fully.” Id. § 27.011(b). In this case, the trial court

demonstrably failed to interpret and apply the TCPA consistent with its

purpose and the Legislature’s command.

     Schlumberger’s lawsuit against Rutherford has nothing to do with

abridging her constitutional rights to “petition, speak freely, and

otherwise participate in government to the maximum extent permitted

by law.” Nor does the TCPA protect Rutherford’s conduct at issue in



                                    2
this lawsuit: breach of fiduciary duties by use of Schlumberger’s

confidential information obtained while Rutherford was its top

Intellectual Property lawyer; improper removal and use of physical and

electronic property from Schlumberger’s premises; allowing third

parties   to   access   Schlumberger’s   confidential   information    and

documents in her possession; and improperly and without permission

deleting a large number of company files, including files containing

confidential data and information. See CR.1344, 1415, 1418–21.

     Disregarding the mismatch between Schlumberger’s claims and

the purpose and scope of the TCPA, the trial court concluded that the

TCPA was applicable in this case. Rutherford now urges the Court to

ratify that decision. Heedless of the broader consequences, Rutherford

invites this Court to likewise ignore the TCPA’s purpose of protecting

only public communications analogous to participation in government,

advocating instead that the Court endorse a myopic reading of isolated

portions of the statute, focused solely on its definitions of the “right to

petition” and “right of association.”     Thus, Rutherford envisions a

virtually unlimited reach for the TCPA’s dismissal mechanism, leading

to unworkable and absurd results. The Court should reject Rutherford’s



                                    3
invitation to expand the scope of the TCPA beyond the text of the

statute and the intent of the Legislature.

     But even if the TCPA applies, Schlumberger introduced more than

sufficient clear and specific evidence to establish a prima facie case,

precluding dismissal of its claims. The trial court reached a contrary

conclusion only by determining that circumstantial evidence is

inadmissible to defeat a TCPA motion, a construction of the statute that

is unsupported by its text and that runs afoul of longstanding

evidentiary standards in Texas.

     For her part, Rutherford is unwilling to endorse explicitly the trial

court’s indefensible “no circumstantial evidence” rule, choosing instead

to focus on mischaracterizing Schlumberger’s evidence as mere

speculation and innuendo. But the record speaks for itself, and includes

ample direct and circumstantial evidence to defeat Rutherford’s TCPA

motion. For all of these reasons, the Court should reverse the trial

court’s decision dismissing Schlumberger’s claims for breach of fiduciary

duty, misappropriation of trade secrets, conversion, and violation of the

Texas Theft Liability Act.




                                    4
                                   ARGUMENT

I.    THE COURT HAS JURISDICTION TO CONSIDER SCHLUMBERGER’S
      APPEAL.

      Referencing dicta from Paulsen v. Yarrell, No. 01–14–00351–CV,

2014 WL 7174259 (Tex. App.—Houston [1st Dist.] Dec. 16, 2014, no

pet.), Rutherford asserts that the Court lacks jurisdiction over

Schlumberger’s appeal.           Specifically, Rutherford claims that an

amendment to Texas Civil Practice and Remedies Code Section 51.014

impliedly negates Schlumberger’s ability to appeal the grant—as

opposed to a denial―of a TCPA motion to dismiss under Texas Civil

Practice and Remedies Code Section 27.008(b).1 Rutherford is wrong.

      Section 27.008(b) provides for appeals from orders on TCPA

motions to dismiss without regard for whether an order is a grant or

denial. And legislative history confirms that (1) the intent of the TCPA

was to allow appeals from both grants and denials of TCPA motions to

dismiss, and (2) the amendment to Section 51.014 did not alter the



1. See TEX. CIV. PRAC. & REM. CODE § 27.008(b) (“An appellate court shall expedite
an appeal or other writ, whether interlocutory or not, from a trial court order on a
motion to dismiss a legal action under Section 27.003 or from a trial court’s failure
to rule on that motion in the time prescribed by Section 27.005.”); § 51.014(a)(12)
(“A person may appeal from an interlocutory order of a district court, county court
at law, statutory probate court, or county court that . . . denies a motion to dismiss
filed under Section 27.003.”).

                                          5
TCPA in that regard. See Senate Comm. on State Affairs, Engrossed

Bill Analysis, Tex. H.B. 2935, 83d Leg., R.S. (2013) (sponsor explains

that the original legislation allows appeals from grants and denials of

TCPA dismissal motions, and that the amendment was simply intended

to correct a Second Court of Appeals case finding no jurisdiction over

the denial of a TCPA motion).

     The   Court   should   not   read   an   implied   modification     of

Section 27.008(b) into Section 51.014(a)(12)—doing so would be contrary

to the express intent of the author of both provisions. See TEX. GOV’T

CODE § 311.023(3) (courts may consider legislative history); Alex

Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651–52

(Tex. 2006) (“cautiously” looking to legislative history where statutory

language nebulous). Indeed, Rutherford fails to point to any analogous

case law holding that an amendment to one statute impliedly modified

another, contrary to the express legislative intent of that amendment.

     In any event, the Court has jurisdiction because the trial court’s

order partially denied the TCPA motion, thereby providing jurisdiction

over the entire order under Section 51.014(a)(12). See Kinney v. BCG

Attorney Search, No. 03–12–00579–CV, 2014 WL 1432012, at *1, 13



                                   6
(Tex. App.—Austin Apr. 11, 2014, pet. denied) (mem. op.) (finding

jurisdiction over both appeal and cross-appeal of partial denial and

partial grant of TCPA motion to dismiss).        In a closely analogous

context, Texas courts of appeals have held that when jurisdiction under

Section 51.014(a)(6) is triggered, jurisdiction exists over the entire

order, and not just over the claims triggering jurisdiction. See Dolcefino

v. Randolph, No. 14-00-00602-CV, 2001 WL 931112, at *3 (Tex. App.—

Houston [14th Dist.] 2001, pet. denied) (“this court has jurisdiction over

the entire order denying appellants’ motions for summary judgment”);

but see KTRK Television, Inc. v. Fowkes, 981 S.W.2d 779 (Tex. App.—

Houston [1st Dist.] 1998, writ denied), rev’d in part on other grounds,

Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000) (finding

jurisdiction present only with regard to specific claims triggering

jurisdiction).

      In sum, the Court has appellate jurisdiction and should address

the merits of Schlumberger’s appeal.

II.   THE TCPA DOES NOT APPLY            TO   SCHLUMBERGER’S CLAIMS
      AGAINST RUTHERFORD.

      Rutherford asserts that Schlumberger’s claims implicate the

TCPA’s protection of her “right to petition” and “right of association.”


                                    7
CR.237.   Rutherford bore the initial burden of demonstrating the

TCPA’s applicability by a preponderance of the evidence.        Because

Rutherford did not, and could not, meet that burden, the trial court

erred in dismissing Schlumberger’s claims.

     A.    The TCPA Protects Public Communications with a
           Nexus to Participation in Government, Not Private
           Communications for Commercial Gain.

     The TCPA’s language, context, and legislative history confirm that

it protects communications made publicly and with a nexus to

participation in government, and not private communications for

commercial gain.

     Section 27.002 describes the purpose of the TCPA as follows: “to

encourage and safeguard the constitutional rights of persons to petition,

speak freely, associate freely, and otherwise participate in government

to the maximum extent permitted by law.” TEX. CIV. PRAC. & REM.

CODE § 27.002 (emphasis added).

     As decisions from both this Court and the Fourteenth Court of

Appeals have noted, because the stated purpose of the TCPA includes

the phrase “otherwise participate in government,” it is apparent that

the Legislature intended to protect only communications that are



                                   8
analogous to participating in government. See Cheniere Energy, Inc. v.

Lotfi, 449 S.W.3d 210, 216 (Tex. App.—Houston [1st Dist.] 2014, no

pet.) (explaining that the terms “citizen” in the title of the TCPA and

“participate in government” in its purpose provision “contemplate a

larger public purpose”); id. at 217 (Jennings, J., concurring) (“By

including the phrase ‘otherwise participate in government’ in Section

27.002, the legislature intended to protect only constitutionally

protected freedoms that rise to such a level that they can be considered

participation in government.”) (internal punctuation omitted); Jardin v.

Marklund, 431 S.W.3d 765, 770–73 (Tex. App.—Houston [14th Dist.]

2014, no pet.).

     Other Texas courts have also recognized that the TCPA is not

intended to protect private communications.         In Whisenhunt v.

Lippincott, for example, the Sixth Court of Appeals held that the TCPA

did not apply to a motion to dismiss defamation claims based on

internal emails that had never been published in a newspaper, social

media, or other public forum. 416 S.W.3d 689, 697–700 (Tex. App.—

Texarkana 2013, pet. filed). See also Rivers v. Johnson Custodial Home,

Inc., No. A-14-CA-484-SS, 2014 WL 4199540, at *1–2 (W.D. Tex. Aug.



                                   9
22, 2014); Charalambopoulos v. Grammer, 3:14–CV–2424–D, 2015 WL

390664 (N.D. Tex. Jan. 29, 2015). The court explained, “Considering

the language of the statute as a whole, the Legislature’s statement of

intent, and existing law, which was referenced by the Legislature, we

conclude that the TCPA does not apply to speech that is only privately

communicated. Only under such an interpretation can both purposes of

the TCPA be served.” Whisenhunt, 416 S.W.3d at 700.

             1.   The TCPA should be construed consistent with
                  the express purpose set forth in its text.

     Rejecting the considered analysis of the issue in the Cheniere

Energy, Jardin, and Whisenhunt decisions, Rutherford argues that the

language in the TCPA’s purpose provision should be given no

consideration in this case.    Rather, in Rutherford’s view, the Court

should focus solely on the language in Section 27.001 of the statute

defining the “right to petition” and “right of association.” See Appellee’s

Br. 27–28.

     For the proposition that the TCPA’s “Purpose” provision should be

ignored, Rutherford directs the Court to St. Martin Evangelical

Lutheran Church v. South Dakota, 451 U.S. 772 (1981). According to

Rutherford, in St. Martin the U.S. Supreme Court “observ[es] that


                                    10
general statements of legislative purpose ‘cannot defeat the specific and

clear wording of a statute.’” Appellee’s Br. 28 (quoting St. Martin, 451

U.S. at [791] 786 n.19).

     But Rutherford misquotes St. Martin, omitting key language from

the opinion that negates her argument.        The actual quote from St.

Martin reads as follows: “general statements of overall purpose

contained in legislative reports cannot defeat the specific and clear

wording of a statute.”     St. Martin, 451 U.S. at 786 n.19 (emphasis

added). Of course, Schlumberger, like this Court in Cheniere Energy,

points first and foremost to the clear statutory text of the TCPA setting

forth its purpose, not legislative reports as discussed in St. Martin. See

TEX. CIV. PRAC. & REM. CODE § 27.002 (“Purpose”). Further, the text of

the TCPA itself directs that it be interpreted in light of its purpose. See

id. § 27.011 (“Construction”). Rutherford’s suggestion that the TCPA’s

purpose be given little or no weight in interpreting its operative

provisions runs afoul of the plain text of the statute.

     Contrary to Rutherford’s suggestion, Texas courts consistently

interpret statutes pursuant to express purposes set forth in statutory

text. See, e.g., Aviles v. Aguirre, 292 S.W.3d 648, 649 (Tex. 2009) (per



                                    11
curiam) (noting that no other construction of the statute at issue would

comply with the explicit purpose of the statute); Smith v. Baldwin, 611

S.W.2d 611, 615 (Tex. 1980) (interpreting DTPA, which commands that

it be construed to promote its purpose set forth in Section 17.44 of the

Texas Business and Commerce Code, in light of the legislative intent

expressed in that section). Rutherford offers no legitimate reason, nor

could she, why the TCPA—unlike other Texas statutes with “purpose”

provisions—should be interpreted without reference to that provision.

           2.   The Cheniere Energy, Jardin, and Whisenhunt
                decisions do not misconstrue the TCPA.

     Leaving aside Rutherford’s misreading of St. Martin, she goes on

to suggest that the Cheniere Energy, Jardin, and Whisenhunt courts all

misconstrued the TCPA. But it is Rutherford who misunderstands both

the statute and these decisions, urging a construction of the TCPA that

is contrary to both the statute’s text as well as established canons of

construction.

     As to Cheniere Energy and Jardin, Rutherford maintains that

these decisions incorrectly read the TCPA’s “Purpose” provision to

“override” the definitions of the “right to petition” and “right of

association” provisions in the statute. See Appellee’s Br. 27–30. Not so.


                                   12
      Cheniere Energy and Jardin do not stand for the proposition that

the TCPA’s purpose provision “overrides” any other provision of the

statute.    Rather, these decisions properly recognize that all the

provisions in the TCPA are informed by, and should be construed in

harmony with, the TCPA’s overarching purpose articulated in Section

27.002. This approach to construing the TCPA is consistent with both

the text of the statute as well as established canons of construction. See

TEX. CIV. PRAC. & REM. CODE § 27.011(b) (expressly requiring Texas

courts to construe all of the TCPA’s provisions “to effectuate its

purpose”); see also TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d

432, 441 (Tex. 2011) (explaining that the words of a statute should not

be examined in isolation, but rather must be informed by the context in

which they are used); Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d

658, 663 (Tex. 2010) (explaining that courts cannot interpret a statute

in a manner that renders any part of the statute meaningless or

superfluous).2


2. Rutherford argues that Cheniere Energy conflicts with this Court’s decision in
BBB of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345 (Tex. App.—
Houston [1st Dist.] 2013, pet. denied). Rutherford overreads John Moore. In that
case, the Court made clear that it was deciding only that “the scope of [the TCPA] is
not limited only to protect speech directed toward the government.” Id. at 353
(emphasis added). The Cheniere Energy decision also does not conclude that the

                                         13
      Rutherford also argues that Whisenhunt, and in turn Cheniere

Energy and Jardin, incorrectly conclude that the TCPA does not protect

private communications. See Appellee’s Br. 31–32. Again, however,

Rutherford’s argument turns on her request that the Court ignore the

TCPA’s language, which makes clear that the statute protects public

communications analogous to or involving participation in government,

not private communications for commercial gain.               Whisenhunt, 416

S.W.3d at 697; Jardin, 431 S.W.3d at 770–71; Cheniere Energy, 449

S.W.3d at 216.

      In sum, the basis for Rutherford’s disagreement with Whisenhunt,

Cheniere Energy, and Jardin is that each of those decisions recognized

an essential aspect of the TCPA that Rutherford urges this Court to

ignore: the TCPA was designed to promote public discourse, citizen

participation, and the exchange of ideas for the betterment of all. A

reading of the TCPA that disregards this purpose would be contrary to

the text and intent of the statute, and would dangerously expand its

reach well beyond the expectations of the Legislature.

TCPA is so limited. Rather, Cheniere Energy understands the TCPA to protect
public communications involving citizen participation—whether directed to the
government or simply to the public—not private communications for personal gain.
Thus the holdings in John Moore and Cheniere Energy do not conflict, as Rutherford
suggests.

                                       14
     B.    The TCPA Is Inapplicable Because Schlumberger’s
           Suit  Is  Not   Premised   on   TCPA-Protected
           Communications.

     Rutherford could not, and did not, meet her burden to prove by a

preponderance of the evidence that Schlumberger’s lawsuit was filed in

response to, premised upon, or otherwise implicated TCPA-protected

communications.

     Rutherford argues that her conduct triggering Schlumberger’s

lawsuit is protected by the TCPA because it is somehow “connected” to

the filing of patent litigation against Schlumberger by Dynamic 3D

Geosolutions, a subsidiary of her employer Acacia.    See Rutherford’s

Cross-Appellant’s Br. 29–30. The Court should reject this argument for

several reasons.

     First, none of Schlumberger’s claims are “based on,” “related to,”

or a “response” to Dynamic’s patent litigation. Rather, Schlumberger

brought claims against Rutherford addressing rights and remedies

independent of and different from those at issue in patent litigation.

Likewise, none of Schlumberger’s claims implicates First Amendment

concerns, much less the specific First Amendment concerns protected by




                                  15
the TCPA. Finally, accepting Rutherford’s expansive interpretation of

the TCPA leads to unreasonable and absurd results.

           1.    Schlumberger’s suit does not implicate the First
                 Amendment concerns addressed by the TCPA.

     According to Rutherford, if any connection can be drawn between

Dynamic’s patent litigation and Schlumberger’s suit against her, the

protections of the TCPA are invoked. Rutherford is mistaken.

     To begin with, Rutherford’s argument is premised on the notion

that Dynamic’s pursuit of patent litigation somehow constitutes an

exercise of Rutherford’s constitutional rights. This is not the case. See

Jardin, 431 S.W.3d at 774.      Rutherford cannot invoke any “right to

petition” that Dynamic may possess. See id.

     And although Dynamic’s allegations alerted Schlumberger that

Rutherford may have violated her contractual and legal duties, causing

Schlumberger to investigate her departure, the fact that information

discovered during that investigation resulted in the filing of this lawsuit

does not equate to this lawsuit being connected to Dynamic’s patent

case. Rather, Schlumberger’s suit against Rutherford involves multiple

causes of action, including breach of contract, breach of fiduciary duty,

and misappropriation of trade secrets claims, all of which address rights


                                    16
and remedies independent of and different from those at issue in patent

litigation.   As both the U.S. Supreme Court and Texas courts have

recognized, the law protecting trade secrets advances “goals outside the

contemplation of the federal patent scheme” in a manner “not aimed

exclusively at the promotion of [the] invention itself.” Bonito Boats, Inc.

v. Thunder Craft Boats, Inc., 489 U.S. 141, 166 (1989); see also Hyde

Corp. v. Huffines, 314 S.W.2d 763, 773 (Tex. 1958).

      Further, as in this case, trade secret misappropriation cases often

involve breaches of contracts or breaches of confidence. Such cases do

not implicate First Amendment concerns, much less the specific First

Amendment concerns protected by the TCPA. See, e.g., Cohen v. Cowles

Media Co., 501 U.S. 663, 668–72 (1991) (holding that First Amendment

protections were not triggered by a private cause of action for

promissory estoppel); see also Schlumberger’s Cross-Appellees’ Br. 31–

37.

      Under Rutherford’s expansive view of the TCPA, contrary to these

precedents, an employee and even a fiduciary such as herself, can

invoke the TCPA as a shield to “immunize” tortious, unlawful, and

unethical conduct so long as that misconduct has some connection to a



                                    17
subsequently filed patent lawsuit.            Surely the Legislature did not

intend the TCPA to apply in this manner.3

             2.    Applying the TCPA to a broad array of claims
                   unrelated to the statute’s purpose leads to
                   unreasonable and absurd results.

      Rutherford’s argument that the TCPA’s protections are invoked by

the mere existence of any connection between Dynamic’s patent lawsuit

and Schlumberger’s claims against her is perhaps most troubling

because it is predicated on an interpretation of the TCPA that is

unworkable, unreasonable, and leads to absurd results. It turns on an

expansive and aggressive reading of the TCPA, particularly regarding


3. California courts have rejected the overly broad interpretation of that State’s
anti-SLAPP statute that Rutherford advocates here. California courts look to the
“gravamen of a cause of action [to determine] whether the anti-SLAPP statute
applies.” U.S. Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton, 171 Cal. App.
4th 1617, 1625 (Cal. App. 4 Dist. 2009). With particular reference to suits asserting
attorney misconduct, California courts have recognized a “growing body of case law
[holding] that actions based on an attorney’s breach of professional and ethical
duties owed to a client are not SLAPP suits, even though protected litigation
activity features prominently in the factual background.” Appellants’ Br. 40.

Rutherford calls this precedent “irrelevant” because the California statute applies to
a cause of action “arising from” protected activity, whereas the Texas statute
applies to a cause of action that is “based on, relates to, or is in response to”
protected activity. Appellee’s Br. 40-41. But California courts are not focused on
the distinction between the asserted technical definitions of the phrases “arises
from” and “relates to.” Rather, like Texas courts, California courts look to the
purpose of the anti-SLAPP statute and determine whether the act underlying the
plaintiff’s cause of action was “an act in furtherance of the defendant’s right of
petition or free speech.” Freeman v. Schack, 154 Cal. App. 4th 719, 727 (Cal. App. 4
Dist. 2007).

                                         18
the breadth of its provisions protecting the “right to petition” and the

“right of association,” that insists these provisions be read broadly, and

in isolation, rather than in light of the TCPA’s “Purpose” set forth in

Section 27.002.

     As this Court has recognized however, untethering the TCPA’s

“right to petition” and “right of association” provisions from its “larger

public purpose” and the “generally recognized parameters of First

Amendment protections” leads to an unreasonable and absurd

expansion of the statute’s applicability. Cheniere Energy, 449 S.W.3d at

216–17 (noting that if the statute is not read in light of these

considerations, “any communication that is part of the decision-making

process in an employment dispute—to name just one example—could be

used to draw within the TCPA’s summary dismissal procedures private

suits implicating only private issues”).

     The consequences of applying Rutherford’s rule demonstrate the

concerns articulated in Cheniere Energy.           For example, under

Rutherford’s interpretation, the TCPA would apply to any and all

compulsory counterclaims because they are necessarily “associated” or

“connected” with the triggering claim or suit. See TEX. R. CIV. P. 97(a)



                                    19
(providing that a pleading “shall state as a counterclaim any claim . . . if

it arises out of the transaction or occurrence that is the subject matter

of the opposing party’s claim”).             The upshot would be that every

compulsory      counterclaim       would     invoke     the   TCPA’s      procedures,

including a potential award of attorneys’ fees, sanctions against the

(compulsory) counterclaimant, and—according to the trial court—

dismissal of the compulsory counterclaims unless the counterclaimant

can prove its case by non-circumstantial evidence at the outset of a

lawsuit and long before the completion of discovery.4

      In addition, under Rutherford’s interpretation, the TCPA could be

used to abrogate or substantially undermine longstanding Texas

statutory and common law remedies for tortious and unlawful conduct.

Applied as broadly as Rutherford suggests, the TCPA could shield


4. Rutherford argues that it is “implausible” to suggest that all compulsory
counterclaims would implicate the TCPA’s protections because “[a] counterclaim can
be, but is not necessarily, filed in response to—that is, in retaliation for—the
plaintiff’s filing of the original claim, which is an act of petitioning.” Appellee’s Br.
34.

Rutherford appears to have forgotten what she asserts elsewhere in the same brief:
under Section 27.003(a) the TCPA is also triggered by a legal action that “relates to”
the “right to petition,” not just legal actions that are filed “in response to” the
exercise of the right to petition.       Of course, by their nature compulsory
counterclaims are necessarily “related to” the triggering claim or suit. See TEX. R.
CIV. P. 97(a).



                                           20
conduct contravening Texas’s Free Enterprise and Antitrust Act of

1983, the Texas Insurance Code, and Texas’s anti-discrimination and

anti-retaliation laws. See Schlumberger’s Cross-Appellees’ Br. 40–48.

The notion that the Legislature intended the TCPA’s reach to be so

broad and all-encompassing, shielding all manner of illegal and tortious

conduct unrelated to the purposes of the TCPA, strains credulity.5

III. EVEN ASSUMING THE TCPA APPLIES, SCHLUMBERGER MET ITS
     EVIDENTIARY BURDEN TO PREVENT DISMISSAL OF ITS CLAIMS.

      Even if the Court concludes that Schlumberger’s lawsuit

implicates the TCPA, it should reverse the trial court’s dismissal of

Schlumberger’s claims for breach of fiduciary duty, misappropriation of

trade secrets, conversion, and violation of the Texas Theft Liability Act.

The TCPA imposes a minimal evidentiary burden on plaintiffs seeking

to avoid dismissal, and Schlumberger more than adequately met that

burden.

      A.    The TCPA Imposes a Minimal Evidentiary Burden on
            the Non-Movant.

      If the trial court determines that a movant in a TCPA dismissal

motion has met her initial burden to demonstrate that the non-movant’s

5. Even if the TCPA applies in this case, the commercial speech exception in Section
27.010(b) of the TCPA prevents dismissal of Schlumberger’s claims against
Rutherford. See Appellants’ Br. 46–48.

                                        21
lawsuit implicates the TCPA, the burden shifts to the non-movant to

establish “by clear and specific evidence a prima facie case for each

essential element of the claim in question.” TEX. CIV. PRAC. & REM.

CODE § 27.005(c). In determining whether a non-movant carries that

burden, the trial court “shall consider” both the pleadings and evidence,

id. § 27.006, and it must review them in the light most favorable to the

non-movant.    Schimmel v. McGregor, 438 S.W.3d 847, 855–56 (Tex.

App.—Houston [1st Dist.] 2014, pet. filed).

     Here, the trial court made clear that it interpreted Section

27.005(c)’s requirement that the non-movant submit “clear and specific”

evidence establishing a prima facie case to foreclose the court’s

consideration of any circumstantial evidence.            RR.IX.45.    But

interpreting   the   TCPA    to   preclude    rational   inferences   from

circumstantial evidence would violate the definition of a prima facie

case under Texas law, the ordinary meaning of “clear and specific,” and

the elementary principle of Texas law that any fact may be proved

through circumstantial evidence.    Appellants’ Br. 50–54.      Moreover,

precluding rational inferences from circumstantial evidence would by

definition lead to absurd results, and would require the Court to



                                   22
conclude that the Legislature intended to impose on litigants a higher

burden to survive a motion to dismiss filed at the outset of a case than

would be necessary ultimately to prevail at trial. See id. 6

      The Court should confirm that (1) the prima facie standard

defines the quantum of evidence needed to overcome a TCPA motion,

and (2) the terms “clear and specific” relate to the quality of evidence

and do not exclude circumstantial evidence and rational inferences.

      B.    Schlumberger Carried Its Evidentiary Burden To
            Prove a Prima Facie Case with Clear and Specific
            Evidence for Every Claim Asserted Against
            Rutherford.

      Rutherford does not deny that in evaluating a TCPA motion, the

Court must review the pleadings and evidence in the light most

favorable to the non-movant.            Schimmel, 438 S.W.3d at 855–56;

Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416

S.W.3d 71, 80–81 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).


6. In addition, precluding the use of circumstantial evidence would violate the Open
Courts provision of the Texas Constitution. See Appellants’ Br. 55–58. Tellingly,
Rutherford’s lead argument in response to Schlumberger’s Open Courts argument is
a wholesale retreat from any claim of a heightened evidentiary standard, as
Rutherford instead argues that she is applying only generally applicable Texas law
precluding “meager” circumstantial evidence and “stacked” inferences. Appellee’s
Br. 50. This is irreconcilable with both her argument on appeal, e.g. Rutherford’s
Cross-Appellant’s Br. 20, and her trial court argument, e.g., RR.VII.42, which
convinced the trial court that the TCPA prohibits the use of circumstantial evidence
by a plaintiff, e.g., RR.VII.41-42, RR.IX.45, 47–48.

                                        23
Nevertheless, she makes strained attacks on Schlumberger’s evidence

that serve only to underscore the invalidity of the evidentiary standard

she advocates.   By presenting direct and circumstantial evidence to

support each of its claims, Schlumberger met its burden under Section

27.005(c). See Appellants’ Br. 59–71.

           1.    Breach of fiduciary duty

     In support of its breach of fiduciary duty claim, Schlumberger

presented evidence showing that a number of USB drives were attached

to Rutherford’s computer between the time she accepted her new

position with Acacia and her last day at Schlumberger—a timeframe in

which, as Schlumberger’s Deputy General Counsel for Intellectual

Property, Rutherford indisputably owed Schlumberger the highest of

fiduciary duties.   CR.1334.     Those drives contained confidential

Schlumberger information, including trade secrets. CR.1334, 1415, 18–

21. Rutherford accessed these drives after accepting employment with

Acacia, CR.1334, connected some of them to her Acacia laptop, CR.2859,

and ultimately failed to return those drives to Schlumberger upon her

departure from the company, CR.1406–07, 1414, 1431. Rutherford also

failed to return a My Book external hard drive, which contained



                                  24
confidential Schlumberger emails.             CR.73, 1406–07, 1414, 1431.

Finally, Rutherford deleted files from her company-issued laptop before

returning it. CR.1334.7

      In response, Rutherford asserts that Schlumberger’s evidence

established only that it could not find the drives, not that Rutherford

had taken them.        Appellee’s Br. 53 & n.6.        But Rutherford fails to

explain witness testimony directly contradicting her account of what

she did with the missing devices.                See CR.1431 (Supplemental

Declaration of Janet Lennon).         Although Rutherford would have the

factfinder believe her testimony and not Schlumberger’s witnesses, the

governing standard requires just the opposite.              See Schimmel, 438

S.W.3d at 855–56.

      Rutherford also argues that the affidavit of David Cowen,

demonstrating that she accessed confidential information, is invalid.


7. Moreover, as Schlumberger discovered after bringing its lawsuit, Rutherford
breached her fiduciary duties by concurring in the filing of a lawsuit against
Schlumberger involving subject matter she worked on as a Schlumberger attorney.
CR.1422, CR.2849–52, RR.VIII.PX.13 p.46. Rutherford does not deny that this
constituted a breach of her fiduciary duties, which was also established through the
affidavits of two experts on Texas’ disciplinary rules and ethical requirements. See
CR.2998–3045 (Affidavits of Charles Herring and James McCormack). Rutherford’s
consciousness of her misconduct is evidenced by the fact that her narrative changed
as the case progressed. While she initially insisted that she had no communications
whatsoever with Acacia pertaining to Schlumberger, she later admitted to having
such communications. Compare, CR.1187–96, CR.1210, with RR.VIII.PX13 p.36.

                                        25
She maintains that testimony based on an “understanding” is not

evidence, and Cowen stated that he has an “understanding” of what

devices were used by Rutherford.           Appellee’s Br. 55.     But Cowen

explains that he identified the various files accessed while the user

“crutherford2” was logged in. E.g., CR.1334. Rutherford’s assertion

that this is insufficient to show that she was using the devices at issue

demonstrates that her interpretation of the “clear and specific”

standard excludes rational inferences, and is therefore unworkable.8

      Rutherford also argues that the deleted files could have been sent

to the recycling bin or could have been backed up. Appellee’s Br. 56.

However, the mere fact that information was potentially recoverable

does not negate a prima facie case, particularly where evidence is

viewed in the light most favorable to the plaintiff defending against a

TCPA motion to dismiss.        Again, Rutherford’s argument improperly

inverts the applicable standard.




8. Similarly, Rutherford attacks the Robin Nava affidavit as not being based on
personal knowledge, claiming that “it is not proper for a lay witness with no
computer or forensic background to rely on a purported expert to reach her
conclusions.” Appellee’s Br. 56. However, the substantive portion of Nava’s
affidavit is her testimony that various files contained IP content based on her
personal familiarity with Rutherford’s naming conventions, and her personal
knowledge of the value of Schlumberger’s IP content. CR.1413–22.

                                      26
     Finally, Rutherford asserts that Schlumberger did not address the

damages element of the breach of fiduciary duty claim. Appellee’s Br.

57. This argument fails. First, damages are not necessary for a breach

of fiduciary duty claim.     See Appellants’ Br. 59–63.    Second, the

evidence establishes that Rutherford removed confidential trade secret

information.    See id. at 62.   To the extent Rutherford implies this

information is somehow valueless, Nava’s testimony includes evidence

of the value of the trade secrets that Rutherford improperly removed in

breach of her fiduciary duties.     CR.1413–22.    In any event, it is

undisputed that Schlumberger sought injunctive relief requesting the

return of its information.

           2.    Misappropriation of trade secrets

     As Schlumberger previously demonstrated regarding its breach of

fiduciary duty and misappropriation of trade secrets claims, Rutherford

was in possession of a substantial amount of secret information, both on

the devices she failed to return upon her departure and also as a result

of her position with Schlumberger as Deputy General Counsel for

Intellectual Property. CR.1205, 1414, 18–21, 1614–15. She developed,

managed, and assessed Schlumberger’s IP strategies. Id. The very fact



                                   27
that Rutherford had and took secret information after accepting

employment with Acacia, where she is indisputably in a position to use

it to compete against Schlumberger, demonstrates the prima facie case.

See T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d

18 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d).

     In response, Rutherford asserts that Schlumberger failed to

identify any purportedly stolen information.          Appellee’s Br. 17.

Rutherford is incorrect.    The Cowen affidavit specifically identified

Schlumberger files accessed by Rutherford, including numerous files

whose names plainly signify IP content. CR.1334 et seq. In addition,

Nava explained that the files referenced by Cowen contained

Schlumberger’s confidential trade secret information, CR.1415, and she

identified specific files as containing trade secret information pertaining

to Petrel, CR.1415, 18–21. Further, Rutherford herself has admitted

that some of the drives contained confidential information. CR.1205.

     Rutherford goes on to make various complaints about the Nava

affidavit, none of which have merit.      First, Rutherford argues that

Nava’s affidavit does not state the basis for Nava’s claim that the

affidavit is based on her personal knowledge. Appellee’s Br. 59. But



                                    28
Nava’s declaration explains that she is familiar with Schlumberger’s IP

information and strategy based on her position as Schlumberger’s

Deputy General Counsel for Intellectual Property.               CR.1413–15.      As

such, Rutherford’s complaint is meritless.

      Second, Rutherford asserts that Nava’s testimony is that of an

interested witness that cannot easily be controverted. Appellee’s Br. 59.

But that evidentiary principle arises in the summary-judgment context,

and has no application here. See, e.g., Casso v. Brand, 776 S.W.2d 551,

557 (Tex. 1989) (holding, inter alia, that if an affidavit of an interested

witness cannot be easily controverted, it will not support a summary

judgment).9 Further, the case cited by Rutherford for this argument,

Grainger v. Western Casualty Life Insurance Co., 930 S.W.2d 609 (Tex.

App.—Houston [1st Dist.] 1996, writ denied), concerns testimony

regarding an individual’s subjective knowledge or intentions, which are

not susceptible of being easily controverted. See Grainger, 930 S.W.2d

at   615.      Here,    Nava     testified    to   factual   information      about

Schlumberger’s intellectual property and business strategies, in

9. More generally, the rationale of the body of law regarding an interested witness’s
testimony that cannot easily be controverted is that the jury should decide the
issue, and it therefore should not be finally determined at an early stage of
litigation. E.g., RRR Farms, Ltd. v. Am. Horse Prot. Ass’n, Inc., 957 S.W.2d 121,
132 (Tex. App.—Houston [14th Dist.] 1997, pet. denied).

                                         29
contrast to the Grainger plaintiffs’ testimony as to their own

expectations and intentions. Thus, Grainger is inapposite.

     Finally, Rutherford argues that Schlumberger has no damages

and “fails to explain how [Rutherford] used the information or why

Schlumberger thinks she used the information.”         Appellee’s Br. 60.

Again, this argument ignores the record. Schlumberger’s prima facie

case is established by, among other things, the fact that Rutherford

possessed    and    removed   confidential   information   belonging   to

Schlumberger after she accepted employment with Acacia, where she is

indisputably in a position to use that information to compete against

Schlumberger, and that Rutherford’s actions have impaired the value of

Schlumberger’s trade secrets. Appellants’ Br. 65–66.

            3.     Conversion.

     In support of its conversion claim, Schlumberger provided direct

evidence that it owned computer devices that Rutherford had control

over and failed to return to Schlumberger when she left the company,

despite being asked to do so at her exit interview. CR.73, 77, 1406–07,

1414, 1431. Schlumberger is entitled to have that property returned or

to be reimbursed for its value.



                                   30
      In response, Rutherford offers no legitimate complaints about

Schlumberger’s evidence. She begins by asserting that the testimony of

Janet Lennon, Rutherford’s assistant at Schlumberger, somehow does

not establish that Schlumberger owned the devices at issue. Appellee’s

Br. 61–62. But Lennon testified that she provided the devices (USB

flash drives) to Rutherford at Rutherford’s request. CR.76. Contrary to

Rutherford’s suggestion, the rational inference from Lennon’s testimony

is that Lennon met Rutherford’s request by obtaining the devices from

Schlumberger.10

      Similarly, Rutherford claims that the affidavit of Gary DeLeon

fails to demonstrate that Schlumberger owned the external hard drive

because he inaccurately stated the date that he assisted in backing up

Rutherford’s files. Appellee’s Br. 61. This is another instance, however,

of Rutherford arguing that a minor discrepancy in a witness’s testimony

requires draconian results. After all, Rutherford does not dispute that


10. Rutherford also attacks Lennon for stating in an affidavit that she provided
“about ten USB flash drives,” while later testifying that she could not “put a
number to” the flash drives she provided. Appellee’s Br. 62. However, there is no
meaningful discrepancy in this testimony. In both instances, Lennon was unable to
recall the exact number of devices provided to Rutherford, but in one instance she
estimated the number was “about ten.” Rutherford’s suggestion that Lennon’s
testimony is invalid or not credible based on these answers is transparently without
merit.



                                        31
Schlumberger provided her the external hard drive.                  Rutherford’s

assertion that an IT Department Manager’s failure to correctly recall a

date hardly supports her suggestion that his testimony should therefore

be ignored in its entirety.

      Finally, Rutherford claims that Schlumberger “does not even

make an argument regarding conversion damages in its brief.”

Appellee’s Br. 62. But Schlumberger explained that it “is entitled to

have [its] property returned or be reimbursed for its value.” Appellant’s

Br. 68.11 In sum, Rutherford fails to raise any meaningful challenge to

the prima facie evidence supporting Schlumberger’s conversion claim.

            4.     Texas Theft Liability Act

      Finally, the evidence Schlumberger submitted below readily

establishes a prima facie case of each of the elements of its Texas Theft

Liability Act claim. See Appellants’ Br. 70.

      In response, Rutherford asserted that Schlumberger presented no

evidence and made no argument with regard to intent and damages.



11. Rutherford cites R.J. Suarez Enters. v. PNYX, L.P., 380 S.W.3d 238, 242 (Tex.
App.—Dallas 2012, no pet.), for the proposition that Schlumberger must provide
evidence of the value of converted property.         But that case involved the
unremarkable requirement that, by the end of a trial, a party must provide evidence
of the specific amount of damages it incurred. Id. As such, it is inapposite to a
party’s prima facie burden.

                                        32
Appellee’s Br. 64. Rutherford is mistaken. Schlumberger argued in the

trial court and this Court that computer devices provided by the

company to Rutherford, containing confidential business information,

were intentionally taken by Rutherford and not returned. See

Appellants’ Br. 70–71. In support of this argument, Schlumberger cited

record testimony directly contradicting Rutherford’s account of what

she did with the devices at issue. See id. (citing, inter alia, CR.1431 in

comparison to CR.1206–08).

     As   such,   Schlumberger     introduced    evidence   clearly   and

specifically showing that Rutherford has been untruthful with regard to

her taking of the drives and information, demonstrating that she

intentionally and wrongfully removed Schlumberger’s devices and

information. Schlumberger further explained that Rutherford’s actions

“have damaged Schlumberger” and cited Nava’s testimony describing

the value of the intellectual property taken. Appellants’ Br. 70 (citing

CR.2892–93). Rutherford’s contrary claims are belied by the record.




                                   33
IV.   THE TRIAL COURT ABUSED ITS DISCRETION              IN   AWARDING
      $350,000 IN ATTORNEYS’ FEES AND $250,000          IN    SANCTIONS
      AGAINST SCHLUMBERGER.

      Finally, the trial court’s attorneys’ fees and sanctions awards

cannot withstand scrutiny.    Specifically, Rutherford’s submission for

attorneys’ fees was insufficient and internally inconsistent with regard

to segregation of fees between the dismissed causes and the breach of

contract claim.

      Moreover, to the extent Rutherford is correct that her attorneys’

fees cannot be segregated because the breach of contract claim is

intertwined with the other causes of action, bringing those other causes

cannot constitute sanctionable wrongdoing.     In any event, the trial

court’s imposition of sanctions is independently unreasonable because

Rutherford’s claims that Schlumberger has engaged in a history of

revenge litigation, and engaged in improper conduct here, are

demonstrably false.

      A.   Rutherford Failed To Segregate Her Fees as Required
           by Texas Law.

      As an initial matter, Rutherford erroneously asserts that the fee

segregation requirements of Tony Gullo Motors I, L.P. v. Chapa, 212

S.W.3d 299, 310–14 (Tex. 2006), do not apply to TCPA fee awards


                                  34
because the TCPA’s fee provision authorizes fees “as justice and equity

require.” Appellee’s Br. 65–66. But the authority Rutherford cites for

that supposed proposition, Biopolymer Engineer, Inc. v. ImmuDyne,

Inc., 304 S.W.3d 429, 446 (Tex. App.—San Antonio 2009, op. vacated

pursuant to settlement), says nothing of the sort.

     Rather, the Biopolymer court applied Tony Gullo’s segregation

holding and determined that the plaintiff’s declaratory judgment claims

against three defendants were “intertwined to the point of being

inseparable.” Biopolymer, 304 S.W.3d at 446. Thus, Rutherford has

cited to no case law actually supporting her argument that the “justice

and equity” language in the TCPA’s attorneys’ fees provision means the

fee segregation requirements of Tony Gullo do not apply.

     Rutherford also claims that her affidavits established that more

than $580,000 of her $611,000 in fees could not be segregated.

Appellee’s Br. 66.    But Rutherford tellingly makes no attempt to

respond to Schlumberger’s Appellants’ Brief, which explained that

Rutherford’s submitted billing records demonstrated that she made a

minimal, insufficient, and internally inconsistent effort to comply with




                                   35
Tony Gullo. See Appellants’ Br. 76 & n.24. As such, the attorneys’ fee

award should be reversed.

      B.     The Trial Court’s Award of Sanctions Cannot be
             Reconciled with the Record.

      The trial court’s award of sanctions is unsupported by the record.

To the extent that Rutherford is correct that Schlumberger’s dismissed

claims were inextricably intertwined with its breach of contract claim,

the trial court’s imposition of sanctions for bringing those claims was

necessarily arbitrary and an abuse of discretion. And regardless, the

trial court’s award of sanctions was unreasonable and should be

overturned because Rutherford’s allegations of a history of revenge

litigation   by   Schlumberger,   and   improper    conduct    here,   are

unsupported by history or the record.

      For example, Rutherford claims that “Schlumberger has filed

more than one revenge suit against former employees,” citing two prior

instances of litigation. In Schlumberger Tech. Corp. v. Krall, No. 2011–

23838 in the 127th District Court of Harris County, a no-evidence

summary judgment was granted against Schlumberger in a case

involving a former employee defendant. See CR.2282. But Rutherford

fails to disclose to the Court that Schlumberger in fact prevailed against


                                   36
the employee’s new employer, and was awarded $1.2 million in damages

for tortious interference.

     The second case relied on by Rutherford is even less compelling—

it is a 15-year-old case, brought against Schlumberger, and thus self-

evidently fails to demonstrate a pattern of revenge suits. See West v.

Schlumberger Tech. Corp., 234 F.3d 1279, at *2 (9th Cir. 2000)

(unpublished opinion).       Rutherford unsurprisingly fails to cite any

authority imposing sanctions based on wholly dissimilar litigation

separated by fifteen years.

     Rutherford’s allegations that Schlumberger should be sanctioned

for introducing “sham affidavits” are equally unpersuasive.         For

example, Rutherford claims that Lennon’s affidavit stated that

Rutherford organized many hard copy documents in her office prior to

leaving, but that Lennon later testified that Rutherford “used very few

paper files.”   Appellee’s Br. 70 (citing CR.264–65, 268).     However,

Lennon never testified that “Rutherford used very few paper files.” Her

actual testimony was that Rutherford didn’t like to have a lot of paper,

regularly shredded documents, and that the amount of physical paper

on Rutherford’s desk was typically less than a foot high—but it “just



                                     37
depended.”    CR.264.       As such, Rutherford’s attack on Lennon’s

testimony cannot be reconciled with the record.

     In sum, the trial court’s awards of fees and sanctions are

unsupported by history or the record, and should be reversed as

arbitrary and unreasonable.

                                 PRAYER

     The Court should reverse the trial court’s order dismissing

Schlumberger’s claims for breach of fiduciary duty, misappropriation of

trade secrets, conversion, and violations of the Texas Theft Liability

Act, hold that Rutherford’s dismissal motion is denied in its entirety,

and remand the case for further proceedings.

     Alternatively, the Court should reverse the imposition of sanctions

and award of attorneys’ fees and render judgment that neither

sanctions nor attorneys’ fees should be awarded against Schlumberger.

In the further alternative, the Court should remand with instructions

that the trial court require proper segregation of Rutherford’s fee

request to exclude recovery for any work related to Schlumberger’s

breach of contract claim.




                                   38
                                Respectfully submitted,


                                     /s/ Sean D. Jordan
Craig Smyser                     Sean D. Jordan
Land Murphy                        State Bar No. 00790988
Justin Waggoner                  Kent C. Sullivan
SMYSER KAPLAN & VESELKA, L.L.P. Danica L. Milios
700 Louisiana Street, Suite 2300 Peter C. Hansen
Houston, Texas 77002-2700        SUTHERLAND ASBILL & BRENNAN LLP
[Tel.] (713) 221-2300            600 Congress Ave., Suite 2000
[Fax] (713) 221-2320             Austin, Texas 78701
                                 [Tel.] (512) 721-2679
                                 [Fax] (512) 721-2656
                                 sean.jordan@sutherland.com
                                 COUNSEL FOR APPELLANTS



                    CERTIFICATE OF SERVICE

       On March 13, 2015, the foregoing document was served via
Odyssey File & Serve, U.S. Certified Mail, return receipt requested,
electronic mail, or third-party carrier on the following:

     Thomas C. Wright
     Shelley J. White
     WRIGHT & CLOSE L.L.P.
     One Riverway, Suite 2200
     Houston, Texas 77056
     wright@wrightclose.com
     white@wrightclose.com

     COUNSEL FOR APPELLEE


                                     /s/ Sean D. Jordan
                                Sean D. Jordan

                                 39
                  CERTIFICATE OF COMPLIANCE
     In compliance with Texas Rule of Appellate Procedure 9.4(i)(2),
this brief contains 7,494 words, excluding the portions of the brief
exempted by Rule 9.4(i)(1).




                                    /s/ Sean D. Jordan
                               Sean D. Jordan




                                40
