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

Craig Smyser 

Land Murphy 

Justin Waggoner 

SMYSER KAPLAN & VESELKA, L.L.P.

700 Louisiana Street, Suite 2300

Houston, Texas 77002-2700 

[Tel.] (713) 221-2300 

[Fax] (713) 221-2320 

Sean D. Jordan 

 State Bar No. 00790988 

Kent C. Sullivan 

Danica L. Milios 

Peter C. Hansen 

SUTHERLAND ASBILL & BRENNAN LLP

600 Congress Ave., Suite 2000 

Austin, Texas 78701 

[Tel.] (512) 721-2679 

[Fax] (512) 721-2656 

sean.jordan@sutherland.com 

COUNSEL FOR APPELLANTS

ORAL ARGUMENT REQUESTED

ACCEPTED

01-14-00776-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

3/13/2015 6:10:37 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 3/13/2015 6:10:37 PM CHRISTOPHER A. PRINE Clerk
i 

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
ii 

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
iii 

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 
iv 

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 
v 

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 
vi 

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 
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 
2 

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 
3 

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 
4 

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. 
5 

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.”). 
6 

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 
7 

(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.” 
8 

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 
9 

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. 
10 

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 
11 

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 
12 

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. 
13 

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 
14 

 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. 
15 

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 
16 

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 
17 

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 
18 

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). 
19 

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) 
20 

(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). 
21 

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. 
22 

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 
23 

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. 
24 

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 
25 

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. 
26 

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. 
27 

 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 
28 

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 
29 

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). 
30 

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. 
31 

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. 
32 

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. 
33 

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.

 
34 

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 
35 

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 
36 

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 
37 

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 selfevidently 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 
38 

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. 

 
39 

 Respectfully submitted, 

 /s/ Sean D. Jordan 

Craig Smyser 

Land Murphy 

Justin Waggoner 

SMYSER KAPLAN & VESELKA, L.L.P.

700 Louisiana Street, Suite 2300

Houston, Texas 77002-2700 

[Tel.] (713) 221-2300 

[Fax] (713) 221-2320 

Sean D. Jordan 

 State Bar No. 00790988 

Kent C. Sullivan 

Danica L. Milios 

Peter C. Hansen 

SUTHERLAND ASBILL & BRENNAN LLP

600 Congress Ave., Suite 2000 

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 
40 

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