                                                                                      ACCEPTED
                                                                                  01-15-00600-CV
                                                                       FIRST COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                             8/10/2015 5:17:45 PM
                                                                            CHRISTOPHER PRINE
                                                                                           CLERK

                          NO. 01-15-00600-CV

                                                      FILED IN
                                               1st COURT OF APPEALS
                   IN THE COURT OF APPEALS         HOUSTON, TEXAS
                                               8/10/2015 5:17:45 PM
                FOR THE FIRST DISTRICT OF TEXASCHRISTOPHER A. PRINE
                                                       Clerk
                             AT HOUSTON


                                    In re:

            UNION PACIFIC RAILROAD COMPANY,

                                Relator.



                         MANDAMUS REPLY



HAYNES AND BOONE, LLP                  KANE RUSSELL COLEMAN & LOGAN PC

Kent Rutter                            Marcy Lynn Rothman
State Bar No. 00797364                 State Bar No. 17318500
Christina Crozier                      M. Daniel Guerra
State Bar No. 24050466                 State Bar No. 00793865
1221 McKinney, Suite 2100              Galleria Tower II, 10th Floor
Houston, Texas 77010-2007              5051 Westheimer Road
Telephone: (713) 547-2000              Houston, Texas 77056
Telecopier: (713) 547-2600             Telephone: (713) 425-7444
Kent.Rutter@haynesboone.com            Telecopier: (713) 425-7700
Christina.Crozier@haynesboone.com      MRothman@krcl.com
                                       DGuerra@krcl.com

                          Attorneys for Relator,
                     Union Pacific Railroad Company
                                        TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................i 

TABLE OF AUTHORITIES ................................................................................... iii 

INTRODUCTION ..................................................................................................... 1 

ARGUMENT IN REPLY .......................................................................................... 2 

I.       The Trichels misrepresent the facts ................................................................. 2 

II.      Union Pacific met its burden to make a prima facie showing that
         the consulting expert privilege and work product doctrine apply ................... 4 

         A.       The party resisting discovery has the burden to present a
                  minimum quantum of evidence supporting the privilege ..................... 4 

         B.       Koenig’s affidavit provided the minimum quantum of
                  evidence to support Union Pacific’s objections .................................... 5 

         C.       Koenig’s affidavit met all procedural requirements ............................. 7 

III.     Union Pacific did not waive the consulting expert privilege .......................... 8 

         A.       Union Pacific did not waive the consulting expert privilege
                  by filing Koenig’s affidavit ................................................................... 8 

         B.       The offensive use doctrine does not apply because Union
                  Pacific does not assert any affirmative claims .................................... 10 

         C.       Union Pacific did not waive the privilege by attempting to
                  work with the Trichels to preserve evidence....................................... 11 

IV.      The consulting expert privilege is not defeated simply because
         testifying experts read Koenig’s affidavit ..................................................... 12 

V.       Union Pacific was not required to specify every objectionable
         question in its mandamus petition ................................................................. 13 

CONCLUSION AND PRAYER ............................................................................. 14 

VERIFICATION ...................................................................................................... 16 

                                                        -i-
CERTIFICATE OF COMPLIANCE ....................................................................... 17 

CERTIFICATE OF SERVICE ................................................................................ 18 

APPENDIX ........................................................................................................Tab A 




                                                        - ii -
                                      TABLE OF AUTHORITIES

CASES
Axelson, Inc. v. McIlhany,
   798 S.W.2d 550 (Tex. 1990) ................................................................1, 7, 12, 13

In re BP Products N. Am. Inc.,
    263 S.W.3d 106 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) .... 4, 6

In re E.I. DuPont de Nemours and Co.,
    136 S.W.3d 218 (Tex. 2004) ............................................................................ 4, 6

In re Energy Transfer Partners, L.P.,
    No. 12-08-00397-CV, 2009 WL 1028056 (Tex. App.—Tyler Apr.
    15, 2009, orig. proceeding) (mem. op.) ..........................................................7, 12

In re Mendez,
    234 S.W.3d 105 (Tex. App.—El Paso 2007, orig. proceeding) ....................... 1, 9

In re Monsanto Co.,
    998 S.W.2d 917 (Tex. App.—Waco 1999, orig. proceeding) .......................... 7, 8

Republic Ins. Co. v. Davis,
  856 S.W.2d 158 (Tex. 1993) ........................................................................10, 11

In re Union Pac. Resources Co.,
    22 S.W.3d 338 (Tex. 1999)................................................................................... 5

West v. Solito,
  563 S.W.2d 240 (Tex. 1978) ................................................................................ 1

RULES
TEX. R. CIV. P. 192.3(e) .....................................................................................12, 13

TEX. R. CIV. P. 192.5 .................................................................................................. 5

TEX. R. CIV. P. 192.7 .................................................................................................. 5

TEX. R. CIV. P. 193.4 .................................................................................................. 5

TEX. R. CIV. P. 194.3 .................................................................................................. 7

TEX. R. CIV. P. 199.6 ..........................................................................................4, 5, 7

                                                         - iii -
                               INTRODUCTION

      There is a significant disconnect between Union Pacific’s Mandamus

Petition and the Trichels’ Response. The Trichels do not cite, much less respond

to, the Texas Supreme Court case that governs dual-capacity experts, Axelson, Inc.

v. McIlhany, 798 S.W.2d 550 (Tex. 1990). The Trichels also do not cite or respond

to the Texas Supreme Court case which suggests that privilege objections raised in

depositions should be addressed on a question-by-question basis. See West v.

Solito, 563 S.W.2d 240, 246 (Tex. 1978). The Trichels also do not confront In re

Mendez, which holds that if a consulting expert’s mental impressions and opinions

are included in an affidavit, the consulting expert privilege is waived only as to

those mental impressions and opinions contained in the affidavit. 234 S.W.3d 105,

111 (Tex. App.—El Paso 2007, orig. proceeding).

      Those arguments that the Trichels do address are without merit. Contrary to

the Trichels’ position, Union Pacific met its burden to make a prima facie showing

that the consulting expert privilege and work product doctrine apply, and it did not

waive the privileges. The trial court abused its discretion by finding that the

protections of the consulting expert privilege and work product doctrine were

completely destroyed.
                             ARGUMENT IN REPLY

I.    The Trichels misrepresent the facts.

      The Trichels devote a significant portion of their Mandamus Response to

setting forth a “statement of facts” detailing matters that are deeply disputed and

irrelevant to the discreet issue presented in the Mandamus Petition. However,

Union Pacific must respond to the Trichels’ statement of facts to briefly correct a

few key inaccuracies.

      The Trichels take the mandamus record out of context when they contend

that Union Pacific tells “three contradictory stories” about Hampton’s phone.

Because Union Pacific was not present when Hampton’s phone was reset, Union

Pacific relies on Hampton’s explanation about what happened to his phone.

According to Hampton, he went to the Verizon store because his phone’s screen

and battery were malfunctioning. (R8 at Ex. C at 173-75, 177-78.) Hampton asked

the Verizon technician to “fix” the phone, and the technician suggested a “reset.”

(R8 at Ex. C at 178-79.)

      Union Pacific’s communications about the reset are all in accord with one

another and reflect Hampton’s account. See Mandamus Petition at p. 3 (“Hampton

went to Verizon Wireless to fix the phone, where a Verizon technician suggested

that the phone be reset. . . . Not fully realizing that this procedure might erase data,

Hampton agreed to reset the phone.”); R9 Ex. 1 (Union Pacific’s counsel told the



                                         -2-
Trichels’ counsel: “Regarding Hampton’s phone . . . this apparently was done by

his service provider inadvertently during the diagnosis of a battery problem.”); R10

at 4 (“. . . the Verizon technician suggested that the phone be reset. Not fully

realizing that this reset procedure might erase data from the phone, and thinking all

of his data had already been imaged anyway, Hampton approved the technician’s

suggestion and had the phone reset.”).

      In reality, it is the Trichels who take inconsistent positions. In their

Mandamus Response, the Trichels contend that “the destruction of . . . data

occurred on June 22, 2014, while Koenig was actively working with Hampton.”

(Mandamus Response at 1.) However, in a motion to disqualify Union Pacific’s

counsel currently pending in the trial court, the Trichels argue that “the wipe or ‘re-

set’ of the phone does not occur until October 14, 2014.” (2d Supp. R24 at 3.) The

Trichels select this later date in their motion to disqualify so that they can argue

(incorrectly) that Union Pacific’s counsel knew about the reset before it happened.

(Supp. R24 at 3.) Thus, the Trichels contend that the reset occurred on June 22,

2014 when it benefits them in their mandamus arguments in this Court, and that the

reset occurred on October 14, 2014 when it benefits them in their disqualification

arguments in the trial court. The spoliation allegations against Union Pacific and

the motion to disqualify Union Pacific’s counsel are part of an ongoing series of

aggressive litigation tactics that the Trichels have employed throughout this case.



                                         -3-
      When the Trichels finally reach the merits of their arguments in their

Mandamus Response, it is evident that the trial court abused its discretion.

II.   Union Pacific met its burden to make a prima facie showing that the
      consulting expert privilege and work product doctrine apply.

      Contrary to the Trichels’ arguments, Koenig’s affidavit satisfied the

minimum quantum of evidence necessary to support the consulting expert privilege

and work product doctrine.

      A.     The party resisting discovery has the burden to present a
             minimum quantum of evidence supporting the privilege.

      The Trichels contend that Union Pacific did not meet its burden to show

privilege, but they overstate the burden. The party resisting discovery has the

burden to make a “prima facie showing” that a privilege applies. In re E.I. DuPont

de Nemours and Co., 136 S.W.3d 218, 223, 225 (Tex. 2004); In re BP Products N.

Am. Inc., 263 S.W.3d 106, 111-12 (Tex. App.—Houston [1st Dist.] 2006, orig.

proceeding). “The prima facie standard requires only the ‘minimum quantum of

evidence necessary to support a rational inference that the allegation of fact is

true.’” E.I. DuPont de Nemours, 136 S.W.3d at 223.

      If a party requests a hearing on an objection or privilege asserted during a

deposition, the party asserting the privilege must present “any evidence necessary

to support the objection or privilege either by testimony at the hearing or by

affidavits served on opposing parties at least seven days before the hearing.” TEX.



                                        -4-
R. CIV. P. 199.6 (emphasis added); see also TEX. R. CIV. P. 193.4.1 As the words

“any evidence necessary” suggest, “evidence may not always be necessary to

support a claim of protection from discovery.” In re Union Pac. Resources Co., 22

S.W.3d 338, 341 (Tex. 1999).

       B.     Koenig’s affidavit provided the minimum quantum of evidence to
              support Union Pacific’s objections.

       Union Pacific easily met its burden. To make a prima facie case that the

consulting expert privilege applies, Union Pacific simply had to show that Koenig

was an expert who is “consulted, retained, or specially employed by [Union

Pacific] in anticipation of litigation or in preparation for trial, but who is not a

testifying expert.” TEX. R. CIV. P. 192.7. To make a prima facie case that the work

product doctrine applies, Union Pacific simply had to show that (1) Koenig is

Union Pacific’s representative, consultant, or agent, and (2) that Koenig’s

materials, mental impressions, and communications with Union Pacific were

developed or made in anticipation of litigation or preparation for trial. TEX. R. CIV.

P. 192.5.

       Koenig’s affidavit met the “minimum quantum of evidence” necessary to

show that the consulting expert privilege and work product doctrine apply. The

affidavit shows that Koenig is a consultant engaged by Union Pacific. It states that

1
    Although the Trichels rely on Texas Rule of Civil Procedure 193.4, Rule 199.6 governs
privilege objections asserted during a deposition. The rules are similar, but not identical. Both
require only that a party present “any evidence necessary” to support the privilege.


                                              -5-
Koenig is a “Director of Franklin Data” and that “Franklin Data was retained by

Union Pacific Railroad Company (‘Union Pacific’) to preserve data from the cell

phone of James Wilson and Jeremy Hampton.” (R8 at Ex. B at 1; R10 at Ex. B at

1.) Koenig’s affidavit also shows that he was retained in preparation for trial. It

states that Koenig’s work preserving the data began on May 13, 2014, which was

more than two weeks after the Trichels filed suit. (R8 at Ex. B at 1; R10 at Ex. B at

1; see also R1.)

      The Trichels argue that Koenig’s affidavit was insufficient because Koenig

did not “designate” himself as a “consulting or dual-capacity expert” and did not

specifically state that he was retained “in anticipation of litigation,” but such

conclusory statements are not required. (Mandamus Response at 24-25, 26-27.)

Affidavits need only state the “factual basis” for application of the privilege. E.I.

DuPont de Nemours, 136 S.W.3d at 224; BP Prods. N. Am., 263 S.W.3d at 113.

Conclusory statements that the privilege applies are not only unnecessary—they

are insufficient to prove the privilege. E.I. DuPont de Nemours, 136 S.W.3d at

224; BP Prods. N. Am., 263 S.W.3d at 113.

      The Trichels also suggest that Koenig is not a consulting expert because

“after filing its petition for writ of mandamus, UP designated Koenig to testify to

matters in his ‘deposition as well as any other information they may have.’”

(Mandamus Response at 25, citing Supp. R23 at 12.) However, the Trichels fail to



                                        -6-
mention that Union Pacific designated Koenig as a person with knowledge of

relevant facts, not as a testifying expert. (Supp. R23 at 12.) Under Axelson, the

privilege is not destroyed simply because Koenig is both a fact witness and a

consulting expert. See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 554 (Tex.

1990); see also In re Energy Transfer Partners, L.P., No. 12-08-00397-CV, 2009

WL 1028056, at *4 (Tex. App.—Tyler Apr. 15, 2009, orig. proceeding) (mem.

op.).

        C.    Koenig’s affidavit met all procedural requirements.

        Although the Trichels rely heavily on Koenig’s affidavit in their Mandamus

Response, they pretend as if it was not properly before the court during the hearing

on Union Pacific’s objections. (See, e.g., R15 at 6, 14, 17.) But Koenig’s affidavit

met all procedural requirements under Rule 199.6. The affidavit was timely

because it was filed more than seven days before the hearing on Union Pacific’s

objections. TEX. R. CIV. P. 199.6; see also TEX. R. CIV. P. 194.3. Union Pacific

filed Koenig’s affidavit on January 16, 2015 and again on May 27, 2015, well in

advance of the trial court’s June 24, 2015 hearing. (R8 at Ex. B; R10 at Ex. B.)

        The Trichels complain that “UP did not offer any evidence” supporting the

privileges, but Union Pacific had no obligation to formally offer the affidavit into

evidence at the hearing. A formal offer is not required if “the record of the hearing

shows that the parties and the court undisputedly considered the affidavits.” In re



                                        -7-
Monsanto Co., 998 S.W.2d 917, 926 (Tex. App.—Waco 1999, orig. proceeding).

Here, the record shows that the trial court considered the affidavit in reaching its

ruling. In summarizing the parties’ dispute, the trial court stated:

              I’ve got an affidavit here wherein Mr. Koenig . . . makes
              certain statements regarding his investigation into a cell
              phone, the downloading of information and the forensic
              examination of a cell phone that’s at issue in this lawsuit.
              . . . And Mr. Koenig is a forensic computer examiner,
              and he has provided an affidavit . . . as to the
              investigation he made into the contents of that cell phone
              and in this affidavit has made several factual
              statements . . . .

(R15 at 4-5; App. A.) The trial court also stated that it overruled Union Pacific’s

objections “based on evidence that’s before me, the affidavit that I’m looking at

right now.” (R15 at 18; App. A.)

        There is no question that the affidavit was before the court and it satisfied

the minimum quantum of evidence to make a prima facie showing.

III.    Union Pacific did not waive the consulting expert privilege.

        All of the Trichels’ attempts to show that Union Pacific waved the privilege

fail.

        A.    Union Pacific did not waive the consulting expert privilege by
              filing Koenig’s affidavit.

        The Trichels argue that privilege “never attached,” or alternatively was

waived, because Koenig’s affidavit contained opinions in addition to factual

matters. (Mandamus Response at 25-26, 28-30, 33.) According to the Trichels, the


                                         -8-
affidavit included opinions about “the status of data on the phones in question,

whether the data was or is readable, whether data exists, how much data exists, and

the reason for the 39-day delay in obtaining the data from Hampton’s phone that

allowed the data to be erased.” (Mandamus Response at 19.) These matters all

concerned factual information known by Koenig. But even if some statements in

the affidavit could be construed as mental impression or opinions, the privilege still

applies as to Koenig’s undisclosed mental impressions and opinions. See In re

Mendez, 234 S.W.3d 105, 107 (Tex. App.—El Paso 2007, orig. proceeding).

      The Trichels do not confront In re Mendez, which sets forth the rule for

consulting experts who disclose some opinions in an affidavit. 234 S.W.3d 105,

107 (Tex. App.—El Paso 2007, orig. proceeding). In that case, the defendant’s

consulting expert filed an affidavit opining that the plaintiff’s medical treatment

was excessive and unnecessary. The court held that, by filing the affidavit, the

defendant waived the consulting expert privilege “as to those matters stated in the

affidavit.” Id. at 111. However, the court made clear that its “opinion should not be

read as holding that [the defendant] waived the consulting expert privilege with

respect to the other opinions and mental impressions held by [the consulting

expert] which are not stated in the affidavit.” Id. The consulting expert privilege

continued to protect the expert as to other matters. Id.




                                         -9-
      The same rule applies here. None of the statements contained in Koenig’s

affidavit are privileged, whether the statements are construed as expressing facts or

opinions. However, Koenig’s mental impressions and opinions that are not

contained in Koenig’s affidavit remain privileged. The trial court misapplied the

law and abused its discretion when it determined that the consulting expert

privilege was completely destroyed as to all mental impressions and opinions,

regardless of whether the statements appeared in Koenig’s affidavit. (R15 at 21-22;

App. A.)

      B.     The offensive use doctrine does not apply because Union Pacific
             does not assert any affirmative claims.

      Unable to show that the mere filing of an affidavit waives the privilege in its

entirety, the Trichels attempt to establish waiver through the offensive use

doctrine. Because the offensive use doctrine applies only to parties who are

seeking affirmative relief, the Trichels make a strained argument that Union

Pacific asserts affirmative claims against them. See Republic Ins. Co. v. Davis, 856

S.W.2d 158, 164 (Tex. 1993).

      Union Pacific’s position is strictly defensive in nature. Union Pacific is not

seeking any counterclaims against the Trichels, and it has not moved for sanctions

against the Trichels. The Trichels contend that Union Pacific made a “claim” in a

“pleading” that the Trichels’ position was groundless and brought in bad faith, but

they fail to mention that the “pleading” in which Union Pacific made these


                                       - 10 -
statements was Union Pacific’s Response to the Plaintiffs’ Motion to Compel.

(Mandamus Response at 30-31; R8.) In its Response, Union Pacific was simply

defending against the Trichels’ allegations of spoliation.

      Because Union Pacific does not seek affirmative relief against the Trichels,

the offensive use doctrine does not apply. See Republic Ins., 856 S.W.2d at 164

(holding that the offensive use doctrine did not apply to an insurer which filed a

declaratory judgment action, because the relief sought by the insurer was “in

reality, defensive in nature”).

      C.     Union Pacific did not waive the privilege by attempting to work
             with the Trichels to preserve evidence.

      In an even greater stretch, the Trichels next suggest that Union Pacific

waived the consulting expert privilege when it sent a letter to the Trichels’ counsel

suggesting ways that the parties could work together to preserve evidence. The

letter showed that Union Pacific cooperated with the Trichels to preserve a wide

range of evidence. (R8 at Ex. A.) The letter also informed the Trichels that Union

Pacific had “hired a consultant to download a forensic copy of the driver’s phone”

who had encountered difficulties downloading the contents of Hampton’s phone.

(R8 at Ex. A at 2.)

      Contrary to the Trichels’ argument, Union Pacific’s letter did not invite the

Trichels to work directly with Koenig, and the letter did not show any intent by

Union Pacific to waive the privilege. The Trichels’ assertion that Union Pacific’s


                                        - 11 -
letter somehow waived privilege is completely baseless. See In re Energy Transfer

Partners, L.P., No. 12-08-00397-CV, 2009 WL 1028056, at **5-6 (Tex. App.—

Tyler Apr. 15, 2009, orig. proceeding) (mem. op.) (holding there was no waiver

when the defendants told plaintiffs in an email that they would review the

consulting expert’s survey and “let [plaintiffs] know what we find”).

IV.   The consulting expert privilege is not defeated simply because testifying
      experts read Koenig’s affidavit.

      The Trichels also contend that the consulting expert privilege does not apply

because two testifying experts reviewed mental impressions and opinions in

Koenig’s affidavit. The Trichels insist that the affidavit contained mental

impressions and opinions, but they fail to point to a single sentence in the affidavit

that qualifies as a mental impression or opinion. Koenig’s statements about the

data on Hampton’s phone were all factual in nature, and Koenig disclosed those

facts during his deposition, as he was required to do under Axelson, Inc. v.

McIlhany, 798 S.W.2d 550, 554 (Tex. 1990).

      To the extent that any of Koenig’s statements fall into a gray area that might

be construed as either fact or opinion, the consulting expert privilege still applies.

The privilege protecting the consulting expert’s “identity, mental impressions, and

opinions” is broken only if a testifying expert reviewed the consulting expert’s

“mental impressions and opinions.” TEX. R. CIV. P. 192.3(e) (“The identity, mental

impressions, and opinions of a consulting expert whose mental impressions and


                                        - 12 -
opinions have not been reviewed by a testifying expert are not discoverable.”). The

two identical references to mental impressions and opinions in Rule 192.3(e)

logically refer to the same mental impressions and opinions—and not two

completely different sets of information. Thus, the Trichels’ suggestion that a

testifying expert’s review of the statements in Koenig’s affidavit destroys the

privilege as to the mental impressions and opinions that they seek to obtain through

discovery runs afoul of Rule 192.3(e).

      The Trichels’ interpretation of the rule would also demolish the Texas

Supreme Court’s holding in Axelson, Inc. v. McIlhany, 798 S.W.2d 550 (Tex.

1990). Axelson allows a consulting expert to retain the privilege while disclosing

information within his factual knowledge. If the proponent of the evidence could

easily recast information within a consulting expert’s factual knowledge as an

opinion, then he could always destroy the privilege by asking a testifying expert

review the information. The Trichels—who completely ignore Axelson in their

Response—do not consider the interplay between Axelson and Rule 192.3(e).

V.    Union Pacific was not required to specify every objectionable question
      in its mandamus petition.

      Finally, the Trichels argue that Union Pacific waived “the bulk” of its

objections by failing to record each and every objectionable question in its

mandamus petition. (Mandamus Response at 38.) In making this argument, the

Trichels overlook the trial court’s ruling that the consulting expert privilege and


                                         - 13 -
work product doctrine do not protect the answers to any questions. (R15 at 17-18,

21-22; App. A.) The trial court ruled that Koenig’s status as a consulting expert

was “completely destroyed.” (R15 at 21-22; App. A.) The trial court also refused

to rule on Union Pacific’s objections on a question-by-question basis because he

did not know how to “piecemeal it” without “removing the complete status of a

consulting expert.” (R15 at 21-22; App. A.) Thus, it was not necessary to set forth

each and every objectionable question in the mandamus petition. The trial court

abused its discretion by finding that the protections of the consulting expert

privilege and work product doctrine were destroyed as to all matters.

                         CONCLUSION AND PRAYER

      Union Pacific respectfully requests that this Court (1) grant its mandamus

petition, (2) issue a writ of mandamus directing the trial court to vacate its order

overruling Union Pacific’s privilege objections and finding that Koenig’s

consulting expert status was destroyed, and (3) grant all further relief to which

Union Pacific is entitled.




                                       - 14 -
Respectfully submitted,

HAYNES AND BOONE, LLP


/s/ Kent Rutter
Kent Rutter
State Bar No. 00797364
Christina Crozier
State Bar No. 24050466
1221 McKinney, Suite 2100
Houston, Texas 77010-2007
Telephone: (713) 547-2000
Telecopier: (713) 547-2600
Kent.Rutter@haynesboone.com
Christina.Crozier@haynesboone.com


KANE RUSSELL COLEMAN & LOGAN PC

Marcy Lynn Rothman
State Bar No. 17318500
M. Daniel Guerra
State Bar No. 00793865
Galleria Tower II, 10th Floor
5051 Westheimer Road
Houston, Texas 77056
Telephone: (713) 425-7444
Telecopier: (713) 425-7700
MRothman@krcl.com
DGuerra@krcl.com

ATTORNEYS FOR RELATOR,
UNION PACIFIC RAILROAD COMPANY




  - 15 -
                              VERIFICATION

STATE OF TEXAS                §
                              §
COUNTY OF HARRIS              §


      BEFORE ME, the undersigned Notary Public, on this day personally
appeared Marcy Lynn Rothman, who, being by me duly sworn on her oath,
deposed and said that she is an attorney for Relator, Union Pacific Railroad
Company; that she has read the foregoing Mandamus Reply; that the factual
statements contained therein, not independently proved or verified through the
mandamus record, are true and correct; and that the documents included in the
Appendix to the Mandamus Reply are true and correct copies of the originals.




        SUBSCRIBED AND SWORN TO BEFORE ME, this 10th day of August,
2015.


                                      ~~
                                   Notary Public in and for
                                   the State of Texas




                                    - 16 -
                     CERTIFICATE OF COMPLIANCE
                         TEX. R. APP. P. 9.4(i)(3)

       I hereby certify that this Mandamus Reply contains a total of 3,290 words,
excluding the parts of the reply exempted under TEX. R. APP. P. 9.4(i)(1), as
verified by Microsoft Word 2010. This Mandamus Reply is therefore in
compliance with TEX. R. APP. P. 9.4(i)(2)(C).

Dated: August 10, 2015.


                                  /s/ Kent Rutter
                                  Kent Rutter
                                  Counsel for Relator,
                                  Union Pacific Railroad Company




                                     - 17 -
                        CERTIFICATE OF SERVICE

      In accordance with the Texas Rules of Appellate Procedure, the undersigned
hereby certifies that a true and correct copy of the Mandamus Reply has been
served on Respondent and the following counsel of record via e-service on this
10th day of August, 2015:
Respondent:
      Honorable Kyle Carter
      125th District Court
      201 Caroline, 10th Floor
      Houston, Texas 77002

Counsel for Real Parties in Interest, Donald and Mary Trichel,
Individually and as Next Friends of Nicholas Trichel:
      Vuk S. Vujasinovic
      Brian Beckcom
      VB ATTORNEYS, PLLC
      6363 Woodway, Suite 400
      Houston, Texas 77057

      Levon Hovnatanian
      Dale Jefferson
      MARTIN, DISIERE, JEFFERSON & WISDOM
      Niels Esperson Building
      808 Travis, 20th Floor
      Houston, Texas 77002

Counsel Real Party in Interest Jeremy Ray Hampton:
      Adolfo R. Rodriguez, Jr.
      Wilson C. Aurbach
      Christopher K. Rusek
      RODRIGUEZ LAW FIRM, P.C.
      1700 Pacific Ave., Suite 3850
      Dallas, Texas 75201

                                 /s/ Kent Rutter
                                 Kent Rutter


                                      - 18 -
                          APPENDIX

Tab A   —   Motions Hearing, June 24, 2015
           TAB A
Motions Hearing, June 24, 2015
                                                       Motions Held Before The Honorable Kyle Carter


                                                                                                                         Page 1

              1                                                   NO. 2014-23177
              2
                       DONALD AND MARY TRICHEL,      * IN THE DISTRICT COURT OF
              3        INDIVIDUALLY AND AS NEXT      *
                       FRIENDS OF NICHOLAS TRICHEL   *
              4                                      *
                                                     *
              5        VS.                           * HARRIS COUNTY, TEXAS
                                                     *
              6        UNION PACIFIC RAILROAD COMPANY*
                       AND JEREMY RAY HAMPTON        * 125TH JUDICIAL DISTRICT
              7
              8
              9                                ***********************************
                                                       MOTIONS HELD BEFORE
           10
                                                            THE HONORABLE KYLE CARTER
           11
                                                          JUNE 24, 2015
           12                                  ***********************************
           13
           14               MOTIONS HELD BEFORE THE HONORABLE KYLE CARTER were
           15          taken in the above-styled and numbered cause on the 24th
           16          of June, 2015, from 1:56 p.m. to 2:27 p.m., before
           17          Debbie Boothe, CSR, in and for the State of Texas,
           18          reported by machine shorthand at the Harris County Civil
           19          Courthouse, 125th Judicial District Court Jury Room,
           20          201 Caroline Street, 10th Floor, Houston, Texas 77002,
           21          pursuant to the Texas Rules of Civil Procedure and the
           22          provisions stated in the record or attached hereto.
           23
           24
           25


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                                                       Motions Held Before The Honorable Kyle Carter


                                                                                                                         Page 2

             1                                              A P P E A R A N C E S
             2
                      FOR THE PLAINTIFFS:
             3
                                          Mr. Brian Beckcom
             4                            Mr. Vuk Vujasinovic
                                          VB Attorneys, PLLC
             5                            6363 Woodway, Suite 400
                                          Houston, Texas 77057
             6                            (713) 224-7800      (713) 224-7801 Facsimile
                                          brian@vbattorneys.com
             7                            vuk@vbattorneys.com
             8
                      FOR THE DEFENDANT UNION PACIFIC RAILROAD COMPANY:
             9
                                          Mr. Daniel Guerra
           10                             Kane, Russell, Coleman & Logan, P.C.
                                          919 Milam Street, Suite 2200
           11                             Houston, Texas 77002
                                          (713) 425-7400     (713) 425-7700 Facsimile
           12                             dguerra@krcl.com
           13
                      FOR THE DEFENDANT JEREMY RAY HAMPTON:
           14
                                          Mr. Wilson C. Aurbach
           15                             The Rodriguez Law Firm
                                          1700 Pacific Avenue, Suite 3850
           16                             Dallas, Texas 75201
                                          (214) 220-2932     (214) 220-2920 Facsimile
           17                             waurbach@therodriguezfirm.com
           18
                      THE COURT:
           19
                                          The Honorable Kyle Carter
           20                             125th Judicial District Court
                                          Harris County Civil Courthouse
           21                             201 Caroline Street, 10th Floor
                                          Houston, Texas 77002
           22                             (713) 368-6141
           23
                      OTHER APPEARANCES:
           24
                                          Mr. Paul Price
           25


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                                                       Motions Held Before The Honorable Kyle Carter


                                                                                                                         Page 3

              1                                                               INDEX
              2
              3        WITNESS:               WILL KOENIG
              4                                                                                               PAGE
              5        Appearances                                                                              2
              6        Proceedings                                                                              4
              7        Reporter's Certification                                                                 26
              8
              9                                                   *     *     *    *     *     *
           10
           11
           12
           13
           14
           15
           16
           17
           18
           19
           20
           21
           22
           23
           24
           25


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                                                       Motions Held Before The Honorable Kyle Carter


                                                                                                                         Page 4

              1                                               MOTION PROCEEDINGS
              2                                      JUDGE CARTER:              Now we're on the record at
              3        this time.                This is Judge Carter.                     I've come in to rule
              4        on an issue that's been brought to my attention during a
              5        deposition that's occurring in the Court's jury room
              6        today.           The issue that's been brought to the Court's
              7        attention is whether or not a consulting expert,
              8        actually a witness that has been represented to be a
              9        dual capacity witness, a fact witness in addition to a
           10          consulting expert, Mr. Will Koenig, or Koenig, whether
           11          or not his underlying impressions and work product is
           12          discoverable in this case as a result of either waiver
           13          or disclosure, or I think plaintiff's counsel you also
           14          argued by offensive use in this case.
           15                                        Specifically, we've got -- I've got an
           16          affidavit here wherein Mr. Koenig represents certain --
           17          or makes certain statements regarding his investigation
           18          into a cell phone, the downloading of information and
           19          the forensic examination of a cell phone that's at issue
           20          in this lawsuit.                     Specifically, plaintiff has the
           21          question of why was this cell phone that was the driver
           22          of the 18-wheeler -- why was that cell phone essentially
           23          wiped clean.
           24                                        And Mr. Koenig is a forensic computer
           25          examiner, and he has provided an affidavit into the


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              1        investigation as to the investigation he made into the
              2        contents of that cell phone and in this affidavit has
              3        made several factual statements regarding his efforts to
              4        try to download the information contained on the phone,
              5        review the data that was on the phone, what was
              6        identified as a result of his search, some difficulties
              7        that Mr. -- that the witness had, Mr. Koenig had, in
              8        trying to retrieve this data, and identification of the
              9        specific software he used in attempting to retrieve this
           10          data.          And so I just want to tee it up now and invite
           11          Mr. Vujasinovic to go ahead and make your argument now.
           12                                        MR. VUJASINOVIC:                  Certainly, Judge.       As a
           13          reminder, Union Pacific has the burden to establish the
           14          existence of any privilege.                              They also have the burden
           15          of proving no waiver occurred when there's a charge of a
           16          waiver.
           17                                        Union Pacific has been waiving around this
           18          affidavit since they produced it six months ago by
           19          attaching it to their pleading opposing our motion to
           20          compel this cell phone data.                               They've also used it to
           21          defend against the charge that Union Pacific spoliated
           22          evidence, which is a charge also alleged towards their
           23          former employee, Mr. Hampton, and they've used it in
           24          several other pleadings in this case.
           25                                        They claim the consulting expert privilege


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              1        applies.              It does not for three reasons:                            Number one,
              2        they've waived the consulting expert privilege by
              3        offensively using it in the manner I've described, by
              4        disclosing it to us and publicly as a matter of the
              5        public record consistently; number two, it's been
              6        reviewed by a testifying expert, and under the Texas
              7        Rules of Civil Procedure, when that occurs the alleged
              8        consulting expert becomes a fully retained expert that
              9        we can question as any other retained expert.                                        The
           10          testifying expert who reviewed Mr. Koenig's affidavit is
           11          our expert, Mr. Paul Price, who is also a forensics
           12          expert.            And the case law says it doesn't matter whether
           13          the testifying expert who reviewed the alleged
           14          consulting expert's materials is on the same side or the
           15          other side.                 And finally, the defense already admits now
           16          that Mr. Koenig is, in fact, a dual capacity witness,
           17          and by doing so, they've admitted he did obtain
           18          firsthand knowledge and evidence through his work in
           19          this case.
           20                                        And just by way of an example, there's a
           21          2009 opinion, In Re:                        Energy Transfer Partners, and this
           22          case said -- specifically talks about how a party may
           23          waive the consulting expert privilege, and it cites the
           24          host of cases that talk about how it can be waived by
           25          offensive use, by voluntarily disclosing privileged


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              1        information, by filing a controverting affidavit.                                           And
              2        so that's the nutshell of the reasons why, Your Honor,
              3        we respectfully request you overrule their objection and
              4        privilege assertions.
              5                                      JUDGE CARTER:              Response?
              6                                      MR. GUERRA:            Okay.        As an initial matter, I
              7        would like to point the Court at Axelson -- Axelson,
              8        Inc.         It's a Supreme Court case 1990, 798 S.W.2d at 550.
              9        It has a whole section on dual capacity, but
           10          specifically it says "The consulting expert exemption
           11          protects the identity, mental impressions and opinions
           12          of consulting-only experts, but not the facts."                                         So what
           13          this case says very clearly is if -- if you have someone
           14          who is a consulting-only expert but has gained firsthand
           15          knowledge, that they are dual capacity, and that's
           16          exactly what Mr. Koenig is in this case.                                        He went out
           17          and he took forensic images -- or attempted to take
           18          forensic images of these phones, and as a result that is
           19          firsthand knowledge.                        And with respect to that, he is
           20          clearly a fact witness.                          With respect to his opinions or
           21          mental impressions, that is a consult -- he is a
           22          consulting expert.                      And that case is very clear that you
           23          can be both, and just because you're one doesn't mean
           24          that you automatically waive the second.
           25                                        With respect to their argument that because


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              1        their testifying expert reviewed his facts, that all of
              2        a sudden he has turned into a testifying expert, he
              3        loses a consulting-only expert protection, I would point
              4        the Court at Texas Rule of Civil Procedure 192 that says
              5        "A party may discover the following information from a
              6        testifying expert or regarding a consulting expert whose
              7        mental impressions or opinions have been reviewed by a
              8        testifying expert."                       It doesn't say anything about the
              9        facts gathered by that testifying -- by that consulting
           10          expert.
           11                                        So I would say -- I haven't seen the case,
           12          and Counsel hasn't provided any source citation, but I
           13          would suspect that it talks about mental impressions or
           14          opinions.              So that argument is out the window.
           15                                        Basically what we have here, if you sort of
           16          think about it in the abstract, it's like a car wreck.
           17          You have someone who goes out and measures skid marks
           18          and takes samples from the concrete and does all sorts
           19          of things, and he forwards on those facts.                                      That
           20          doesn't -- he is clearly a fact witness with respect to
           21          those things, but that doesn't mean that you get to ask
           22          him questions about "Well, what does that skid mark mean
           23          to you?            What does that chip in the concrete mean to
           24          you?"
           25                                        So we have not made any attempt -- we


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              1        haven't waived anything, and under Axelson we are
              2        absolutely under an objection to disclose firsthand
              3        information that they gather.                               But that doesn't mean
              4        that we -- they lose -- that Koenig loses his protection
              5        as a consulting-only expert.                              And for that reason, we
              6        think we fully complied with the discovery rules and
              7        that they shouldn't be permitted to ask him about his
              8        opinions, impressions, directions from counsel,
              9        communications with counsel or -- or the client.
           10                                        MR. BECKCOM:             In fairness, the analogy --
           11                                        MR. AURBACH:             Hold on, I want to weigh in
           12          here, Mr. Beckcom.
           13                                        MR. BECKCOM:             Sure.
           14                                        MR. AURBACH:             You can go ahead after me, if
           15          it's all right.
           16                                        Your Honor, my name is Wilson Aurbach.                               I
           17          represent Mr. Hampton in this case.                                    I don't think you
           18          and I have met.                      I wasn't at the last hearing.
           19                                        I want to say initially -- I'm not sure if
           20          it's on the record or not -- but I disagree with the
           21          insinuation that the affidavit from Mr. Koenig points to
           22          my client as doing something incorrect.                                         Secondly, I
           23          also disagree that the data that we're discussing in
           24          this case and relevant data to the case is gone.
           25          Mr. Hampton has produced cell phone records, text


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              1        message records and then several thousand pages of
              2        Facebook records in this case that plaintiffs have
              3        claimed are relevant in this case.                                   Those have been
              4        produced.              Also, there's 1.15 gigabytes of data that was
              5        obtained in a download by Mr. Koenig's efforts long ago.
              6        That download was not completely -- completely
              7        successful.                 That's why we're here today.                          We've been
              8        discussing the details of the download.                                         Why it wasn't
              9        successful I have no doubt is going to be a subject of
           10          expert testimony, and those experts will have no more
           11          information about what happened downloading the
           12          cell phone at each attempt than the information that is
           13          already available to everybody today.                                      There's no
           14          offensive use here.                       There's no -- there's no chance
           15          that these future expert testifiers will have more
           16          information from either side than they do today.
           17                                        MR. BECKCOM:             Your Honor, in fairness, just
           18          a couple of issues.                       Mr. Hampton responded to admissions
           19          that we went yesterday about his Facebook use and didn't
           20          admit any of the Facebook use at all.                                      So the idea
           21          that -- or even that he was on the phone or anything at
           22          all like that.                       So the idea that he's produced a bunch
           23          of information about his phone is completely inaccurate.
           24                                        We know for a fact, at least according to
           25          an independent witness from Verizon, that Union Pacific


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              1        and Mr. Hampton specifically requested that Verizon
              2        erase his phone before they had successfully captured
              3        the data.               So the analogy that Mr. Guerra is using about
              4        the normal consulting expert issue is a little bit
              5        different here because there are -- there are very
              6        serious issues that reflect evidence destruct -- that
              7        relate to evidence destruction.
              8                                      MR. GUERRA:             And, Your Honor, we
              9        completely --
           10                                        MR. VUJASINOVIC:                  Here's the Verizon
           11          transcript from last week.
           12                                        MR. GUERRA:             We suspect -- we think the
           13          credibility of that witness is very suspect.                                    But
           14          notwithstanding, that testimony has nothing to do with
           15          the waiver -- the alleged waiver of the privilege with
           16          respect to Mr. Koenig.
           17                                        MR. AURBACH:              And we're getting too far in
           18          the weeds here.                      Your Honor, I believe that this
           19          transcript you're seeing here is months and months after
           20          Mr. Koenig had already testified there was no relevant
           21          data on the phone.                       As of June 23, 2014, there's no
           22          relevant data on that phone.                               Anything that happens
           23          after that couldn't --
           24                                        MR. VUJASINOVIC:                  Well, what they're
           25          telling you is he had already wiped it before that.                                         So


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              1        all this shows is he's trying to wipe it again.
              2                                      MR. AURBACH:             There's no reason to tell him
              3        what I'm telling him.
              4                                      MR. BECKCOM:             Well, the -- from a purely
              5        factual standpoint, I think everybody will agree with
              6        this:          There was a download attempt by Mr. Koenig.                               That
              7        acquired 1.15 gigabytes of data.                                  That was on May 15th.
              8        Everybody is on the same page with that.
              9                                      Then there was another -- and that was --
           10          that download because of the way it was done, a lot of
           11          that information I understand is not accessible.                                     Then
           12          about a month later on June 23rd, there was another
           13          download and there was significantly less data a month
           14          later on the phone -- and Mr. Koenig just testified to
           15          that -- significantly less than 1.15 gigabytes of data.
           16          So data -- there's no question data was removed.                                     There
           17          is no data that pre -- on the second download that
           18          predates June 23, 2014.                          All we are trying to do is get
           19          to the bottom of why that is the case, and like
           20          Mr. Vujasinovic is saying, they've used this affidavit
           21          to defend Mr. Hampton and Union Pacific's conduct and
           22          then -- but then they're turning around and they're not
           23          letting us ask questions to get to the bottom of this
           24          issue.
           25                                        MR. VUJASINOVIC:                  Let me speak to that,


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              1        because, Judge, we deposed Mr. Hampton in November, and
              2        then shortly after that they assigned separate counsel
              3        for him.              He was previously represented by the same firm
              4        that still represents Union Pacific now.
              5                                      Union Pacific has charted a course now and
              6        a strategy to say "Here's all we did to tell Hampton and
              7        Wilson to hold onto your phones, don't delete them,"
              8        issued a litigation hold order.                                  They're throwing out
              9        more affidavits from other people, and their -- their
           10          strategy now is to say "We told them not to get rid of
           11          the phones.                 We specifically told them not to do that.
           12          We hired this expert.                         Look at all this stuff this
           13          expert -- our expert did, and if the phone was
           14          deleted" -- which, by the way, we know it was -- "by
           15          Mr. Hampton, that's -- that's his fault, and the
           16          spoliation charge shouldn't be on -- be on us."
           17                                        Now, the problem is that this gentleman
           18          here, Mr. Koenig, in June last year basically determined
           19          that there's no -- data had been removed from the phone.
           20          Now, obviously he would have told Union Pacific and
           21          their lawyers that, and then at that point in time they
           22          would have -- they would be on notice to try to preserve
           23          whatever might still be there.                                  And then four months
           24          after that they go to the Verizon store, not Mr. Hampton
           25          alone but personally accompanied by a Union Pacific


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              1        witness who we know is a claims agent, and they
              2        specifically tell the lady, she said, three to four
              3        times "Make sure it's all wiped.                                   Wipe the phone."         And
              4        so they want to be able to assert that defense, that we,
              5        Union Pacific, are not liable for spoliation, throw out
              6        that detailed affidavit, use it offensively,
              7        affirmatively disclose it, and then when we try to get
              8        behind the scenes as to "Well, what did UP and their
              9        counsel know or not know," you know, prevent us from
           10          asking it, from asking about that.                                    So it's -- again,
           11          it's like putting a witness on the stand, pass the
           12          witness.              No, you don't get to ask him any -- any real
           13          questions.
           14                                        MR. GUERRA:             Your Honor, they --
           15                                        MR. VUJASINOVIC:                  And they've -- and
           16          they've -- they are not addressing waiver.                                      This Axelson
           17          case that I've cited, which is the main case on dual
           18          capacity, does not concern the issue of waiver, and it
           19          also doesn't concern the issue of the work having been
           20          reviewed by a testifying expert.
           21                                        MR. GUERRA:             Your Honor, I would make a
           22          couple of points.                      One, we haven't seen their -- their
           23          brief on this issue, which they claim they have, but we
           24          haven't seen it.                     We haven't seen the case law.                    With
           25          respect to the affidavit, they have asked hours of


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              1        questions about the very specifics of what was going on.
              2        The only thing we're objecting to are his mental
              3        impressions, opinions, communications with counsel, that
              4        sort of thing.                       Because the data is what the data is,
              5        right, and what he did is what he did.                                          But they don't
              6        get to go behind it, and under Axelson he's a dual
              7        capacity witness.                       I mean, it's just -- it's clear.                          And
              8        if -- if the tables were turned and we were trying to
              9        protect this information, the information that's
           10          contained on the affidavit, clearly under Axelson we
           11          would have no choice but to give it up because he's a
           12          dual capacity and that's evidence that he learned
           13          firsthand.                But that doesn't mean that his status as
           14          a -- as a consulting-only expert gets thrown out the
           15          window.            So there has been no waiver.
           16                                        And with respect to all this other stuff,
           17          let me just say very clearly, the testimony of the
           18          witness who claims that UP told Verizon to delete his
           19          phone is just -- it's not credible.                                     I'll just be very
           20          clear right now.                       That is just not something that Union
           21          Pacific would have done.
           22                                        MR. BECKCOM:              Well --
           23                                        MR. GUERRA:             And with that -- with that
           24          said, Your Honor, we have permitted the plaintiffs --
           25          or, you know, pursuant to court order we have permitted


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              1        the plaintiffs to take -- to ask questions about each
              2        and every time -- each of the five times that he went
              3        out there to gather this information.                                      But beyond that,
              4        we get into the realm of his impressions, opinions,
              5        communications with counsel, all those types of things
              6        that are absolutely protected by consulting privileges.
              7                                      MR. BECKCOM:             Your Honor, just very
              8        briefly.             There's -- factually, here's what I think
              9        everybody agrees with:                         That there are records from
           10          Verizon that show that Mr. Hampton went to the Verizon
           11          store and October 14th of last year and had his phone
           12          reset.           Those are records that we get from Verizon.
           13          Those are written records.
           14                                        MR. AURBACH:             I object.           That's not
           15          accurate.              The Verizon records --
           16                                        MR. BECKCOM:             There are records --
           17                                        MR. AURBACH:             -- don't say that.
           18                                        MR. BECKCOM:             Okay.        There are records that
           19          show that Mr. Hampton went to Verizon on October 14th.
           20                                        MR. AURBACH:             True.
           21                                        MR. BECKCOM:             There is a chain of custody
           22          document that is a Union Pacific document that shows
           23          this Samantha Rickard, a claims agent, went to that same
           24          Verizon store on that same date and met with
           25          Mr. Hampton.                  I mean, we all agree on that, don't we?


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              1                                      MR. GUERRA:            I agree with that, but I
              2        disagree vigorously with the statement that she told
              3        them to delete the phone.                            But the point is that
              4        that's --
              5                                      MR. BECKCOM:             My only point is the phone --
              6        and we know and I think everybody knows that on
              7        October 14th the phone was reset.                                   Everybody agrees.
              8        Even Mr. Hampton agreed on that.
              9                                      MR. GUERRA:            But the point here,
           10          Your Honor, is that all of that is beyond what we're
           11          talking about here, which is the attempted data
           12          acquisition on five different occasions by this forensic
           13          expert.
           14                                        MR. VUJASINOVIC:                  It doesn't relate just to
           15          data acquisition.                     It relates to what he told to Union
           16          Pacific and counsel when he was doing all that, had
           17          those problems, which is relevant to why they didn't do
           18          anything else to stop the destruction of this evidence,
           19          and that's exactly why they're throwing that affidavit
           20          out.         Look here, look at all this stuff we did.                                   You
           21          know, go after Hampton.                          It's his deal.                 That's --
           22          that's the bottom line on that.
           23                                        JUDGE CARTER:              Okay.       It's a really
           24          interesting issue that it presents for the Court,
           25          especially as it relates to a cell phone and the


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              1        downloading of information contained on a cell phone.
              2        But based on evidence that's before me, the affidavit
              3        that I'm looking at right now, along with the arguments
              4        of counsel, the objections are overruled at this time.
              5                                      Is there anything else that you need from
              6        me?
              7                                      MR. BECKCOM:             One minute, Your Honor, and I
              8        think Mr. Guerra and I can present this.                                        Mr. Wilson --
              9        we originally got a redacted copy of his data, and then
           10          Mr. Guerra and I agreed that they would give us a
           11          redacted -- an unredacted copy because Mr. Wilson is
           12          dead.
           13                                        JUDGE CARTER:              Okay.
           14                                        MR. BECKCOM:             And they gave me --
           15                                        JUDGE CARTER:              That's a shame.
           16                                        MR. BECKCOM:             Yeah.        They -- yeah.         They
           17          gave me an unredacted copy, and I found out this morning
           18          that accidentally -- and I'm not saying they did this on
           19          purpose or anything at all like this, but there was some
           20          other data that was not provided.                                   And our agreement was
           21          an unredacted copy.                       I understand from Mr. Guerra that
           22          there may be some kind of embarrassing photos --
           23                                        MR. GUERRA:            It's --
           24                                        MR. BECKCOM:             -- or something, but the guy
           25          is dead.             And so I just -- I mean, if it's embarrassing


                                                                     DepoTexas, Inc.


Electronically signed by Debbie Boothe (301-017-427-7392)                                                   5af73957-9bc9-4781-870d-25e80535ae10
                                                       Motions Held Before The Honorable Kyle Carter


                                                                                                                              Page 19

              1        photos, I'm not even going to use it anyway.                                         I just
              2        want our agreement to be honored.                                   That's all.
              3                                      MR. GUERRA:            Your Honor, and I want to show
              4        this to the Court.                       It's here for you, if you would like
              5        to look at it.                       I just think it's -- we don't have an
              6        objection to the production.                              We just think it's highly
              7        embarrassing --
              8                                      JUDGE CARTER:              Ooh.
              9                                      MR. GUERRA:            -- and it's just not relevant
           10          in any way to what's going on in this case.                                         So if the
           11          Court would like for me to provide a copy to other
           12          counsel, I'm happy to do so.                              I just don't see that it's
           13          relevant.
           14                                        MR. BECKCOM:             We had an agreement that you
           15          would produce an unredacted --
           16                                        MR. GUERRA:            Brian, morally I feel
           17          inappropriate giving that to you without being ordered
           18          to do so.              I mean, I understand we have --
           19                                        MR. BECKCOM:             We did have an agreement.
           20                                        MR. GUERRA:            We did.         Absolutely.
           21                                        JUDGE CARTER:              All right.             All right.       All
           22          right.           We don't want to fight about it.                                I'm reading.
           23                                        MR. VUJASINOVIC:                  He was follow -- he was a
           24          co-worker of Mr. Hampton.                            He was following him at the
           25          time of the crash and an alleged witness who died before


                                                                     DepoTexas, Inc.


Electronically signed by Debbie Boothe (301-017-427-7392)                                                    5af73957-9bc9-4781-870d-25e80535ae10
                                                       Motions Held Before The Honorable Kyle Carter


                                                                                                                             Page 20

              1        we could depose him.
              2                                      MR. GUERRA:            And, Your Honor, there was an
              3        agreement initially to provide 12 hours.                                        We provided
              4        that, and then I don't think there's anything else that
              5        happens in those records that are relevant.
              6                                      MR. BECKCOM:             And, Your Honor, just so you
              7        know, in addition to him being deceased, his wife got
              8        remarried very soon after he died and has raised no
              9        objections at all to the production of any of his -- I
           10          think as his wife when he died, she would be the one
           11          that would have to raise objections on his behalf.
           12                                        MR. VUJASINOVIC:                  It's already in the hands
           13          of a third party.
           14                                        MR. GUERRA:            Obviously, this is an
           15          in-camera review.
           16                                        MR. VUJASINOVIC:                  Oh, I understand.           I'm
           17          not referring to Judge Carter.                                  I meant Union Pacific,
           18          his former employer, has it.                              So apparently it wasn't
           19          private enough for him not to give it to his employer,
           20          and he's not a party to the case.
           21                                        MR. BECKCOM:             And he's dead.
           22                                        MR. GUERRA:            Are you that interested in
           23          what his search history is?
           24                                        MR. BECKCOM:             I don't know what --
           25                                        MR. VUJASINOVIC:                  Well, we have no idea


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Electronically signed by Debbie Boothe (301-017-427-7392)                                                   5af73957-9bc9-4781-870d-25e80535ae10
                                                       Motions Held Before The Honorable Kyle Carter


                                                                                                                         Page 21

              1        what it is.
              2                                      MR. BECKCOM:             And if it's that bad, I
              3        wouldn't use it anyway, of course.
              4                                      JUDGE CARTER:              Well, it will be the subject
              5        of some discussion, I think, later, but I'm going to
              6        order that it be produced.
              7                                      MR. GUERRA:            Okay.        Here you go.
              8                                      MR. BECKCOM:             Thank you.
              9                                      JUDGE CARTER:              There needs to be some
           10          relevant issue, obviously, for us to bring that into
           11          evidence.              Otherwise, I anticipate that we'll see
           12          something about that at pretrial.
           13                                        MR. GUERRA:            Right.
           14                                        Your Honor, so just to be clear so I can
           15          understand the scope of the overruling, I mean, so is
           16          his status as a consulting expert completely destroyed,
           17          or does he maintain any of that status for purposes of
           18          going forward?
           19                                        JUDGE CARTER:              I don't know how I can
           20          piecemeal it, you know, and do it without take --
           21          removing the complete status as a consulting expert.
           22                                        MR. GUERRA:            Okay.
           23                                        JUDGE CARTER:              Because otherwise we're
           24          going to sit here and you're going to object and
           25          instruct the witness not to answer anything that you


                                                                     DepoTexas, Inc.


Electronically signed by Debbie Boothe (301-017-427-7392)                                               5af73957-9bc9-4781-870d-25e80535ae10
                                                       Motions Held Before The Honorable Kyle Carter


                                                                                                                          Page 22

              1        think would come within the scope of some privilege, and
              2        I guess as a result of what I've seen here, I'm ruling
              3        that that privilege is no longer applicable.
              4                                      MR. VUJASINOVIC:                  What I -- you know, what
              5        I would add here, Judge, is that -- I mean, that
              6        affidavit is basically all the work he's done, and so
              7        that's what we tried to question him on today.                                     So it's
              8        not like he's done other stuff, to our knowledge,
              9        outside the scope of the affidavit.
           10                                        MR. BECKCOM:             Do you have the stuff you
           11          withheld pursuant to the privilege with you?
           12                                        MR. GUERRA:            I do.
           13                                        MR. BECKCOM:             Can we --
           14                                        MR. GUERRA:            No, you may not.           We'll
           15          probably end up discussing this with the Court of
           16          Appeals.
           17                                        MR. BECKCOM:             We're right in the middle of
           18          his deposition.                      I thought we were here so Judge Carter
           19          could immediately rule and we could proceed with the
           20          deposition with the Judge here.                                 I thought that was the
           21          whole point of this.
           22                                        MR. GUERRA:            And the Judge has ruled, and I
           23          understand the ruling now.                             And, Brian, we all have
           24          legal rights, and I'm protecting my client's legal
           25          rights.


                                                                     DepoTexas, Inc.


Electronically signed by Debbie Boothe (301-017-427-7392)                                                5af73957-9bc9-4781-870d-25e80535ae10
                                                       Motions Held Before The Honorable Kyle Carter


                                                                                                                              Page 23

              1                                      JUDGE CARTER:              All right.             So at this point
              2        are we shutting down the deposition, or can we get any
              3        more good work out of this day?
              4                                      MR. GUERRA:            I think --
              5                                      MR. VUJASINOVIC:                  We can't do anymore.
              6                                      MR. GUERRA:            Yeah.        And we're not --
              7                                      MR. VUJASINOVIC:                  We got what we could,
              8        Judge, before your ruling, and I don't think --
              9                                      MR. BECKCOM:             And what we did, Your Honor,
           10          just so you know, Mr. Guerra and I -- who I said at the
           11          last hearing work well together, and I still think
           12          that's the case -- we got as much testimony as we
           13          possibly could without getting into the privileges.                                              And
           14          then so all that's left right now is a very short bit of
           15          questions that apply to the privileges.
           16                                        JUDGE CARTER:              Okay.
           17                                        MR. BECKCOM:             Everything else --
           18                                        MR. GUERRA:            And I agree with that,
           19          Your Honor.
           20                                        JUDGE CARTER:              That's fine with me.                Okay.
           21                                        MR. GUERRA:            Okay.
           22                                        JUDGE CARTER:              Then we'll finish -- I guess
           23          you-all will finish up here in pretty short order, and
           24          you can have this affidavit back.
           25                                        Is there anything else that you-all need


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Electronically signed by Debbie Boothe (301-017-427-7392)                                                    5af73957-9bc9-4781-870d-25e80535ae10
                                                       Motions Held Before The Honorable Kyle Carter


                                                                                                                           Page 24

              1        from me at this time?
              2                                      MR. VUJASINOVIC:                  I think we're done now
              3        with the witnesses; right?
              4                                      MR. GUERRA:             Yeah, I think we're done with
              5        the witnesses, and so the deposition is adjourned and at
              6        some point we'll either --
              7                                      MR. BECKCOM:              We're not finished with the
              8        witness.              We're recessing.
              9                                      MR. GUERRA:             Adjourned; right?            Is that --
           10          is that the right word?
           11                                        MR. VUJASINOVIC:                  Whatever it is, we want
           12          to finish him.
           13                                        JUDGE CARTER:              We recess -- we'll recess
           14          this dep -- we're going to recess this deposition at
           15          this time, and we'll pick back up with it at a later
           16          date as agreed by Counsel or otherwise ordered by this
           17          Court.
           18                                        Just so we are clear going forward, I want
           19          the parties to be able to use their deposition time in
           20          the most efficient manner, and today we've been
           21          brought -- it's been brought up that the parties would
           22          like to seek an appeal of this Honorable Court's
           23          decision.               I'm happy with that.                     I just want you-all to
           24          make use -- the best use of the time.                                       I'm sure that
           25          you-all are going to do that as we go forward in this


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Electronically signed by Debbie Boothe (301-017-427-7392)                                                 5af73957-9bc9-4781-870d-25e80535ae10
                                                       Motions Held Before The Honorable Kyle Carter


                                                                                                                              Page 25

              1        case.
              2                                      And subject to recalling any of these
              3        witnesses, we're going to recess today.                                         So any -- there
              4        being nothing else?
              5                                      MR. GUERRA:            I think that's it, Your Honor.
              6                                      JUDGE CARTER:              All right.
              7                                      MR. BECKCOM:             Thank you, Your Honor.
              8                                      JUDGE CARTER:              Thank you very much,
              9        everybody.
           10                                        MR. AURBACH:             Thank you for your time, Your
           11          Honor.
           12
           13                    (The motion hearing was concluded at 2:27 p.m.)
           14
           15
           16
           17
           18
           19
           20
           21
           22
           23
           24
           25


                                                                     DepoTexas, Inc.


Electronically signed by Debbie Boothe (301-017-427-7392)                                                    5af73957-9bc9-4781-870d-25e80535ae10
                                                       Motions Held Before The Honorable Kyle Carter


                                                                                                                        Page 26

              1        COUNTY OF HARRIS )
              2        STATE          OF       TEXAS )
                         PR
              3
                         IN e o w ing
              4                                             REPORTER'S CERTIFICATE
                           TE ri as
              5
                            Th fil

                             D
              6                              I, DEBBIE BOOTHE, a Certified Shorthand
                               D al ec lLe
              7        Reporter in and for the State of Texas, hereby certify
                                U
                                 g


              8        that this transcript is a true record of the proceedings
                                 PL cer tron ga
                                  e

                                   i n e l ea


              9        taken before The Honorable Kyle Carter.
                                      IC tifie ica l te
           10                                I further certify that I am neither attorney,
                                        AT d
                                         us




           11          nor counsel for, related to, nor employed by any of the
                                           E E-T si no
           12          parties to the action in which these motions were made.
                                              R




           13          Further, I am not a relative or employee of any attorney
           14          of record in this cause, nor do I have a financial
                                                 ra g n e l o g


           15          interest in the action.
                                                  lly ch

                                                    ns d y.


           16                                Subscribed and sworn to on this the 24th
                                                      cr


           17          day of June, 2015.
                                                         ip


           18
                                                            t



           19                                  _____________________________________________
                                               DEBBIE BOOTHE, CSR
           20                                  Texas CSR 4708
                                               Expiration Date:                 12-31-16
           21                                  DepoTexas, Inc.
                                               Firm Registration No. 95
           22                                  13101 Northwest Freeway, Suite 210
                                               Houston, Texas                77040
           23                                  888.893.3767
           24
           25


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Electronically signed by Debbie Boothe (301-017-427-7392)                                              5af73957-9bc9-4781-870d-25e80535ae10
