NO. 14-15-00053-CV

IN THE FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS
STANLEY S. FORTSON, INDEPENDENT EXECUTOR OF

THE ESTATE OF EDWIN DENNIS COOK, DECEASED Relator 

## vs. RAY MOGHADDAM, Real Party in Interest Original Proceeding from Harris County Probate Court Number Four Hon. Christine Butts Trial Cause No. 406,325-401
RESPONSE TO PETITION FOR WRIT OF MANDAMUS

JASON B. OSTROM (TBA #24027710) NICOLE SAIN THORNTON (TBA #24043901) ostrommorris, PLLC 6363 Woodway, Suite 300 Houston, Texas 77057 713.863.8891 713.863.1051 (Facsimile) jason@ostrommorris.com nicole@ostrommorris.com ACCEPTED 14-15-00053-CV FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS 2/27/2015 12:21:53 PM CHRISTOPHER PRINE

CLERKTABLE OF CONTENTS Table ofContents .................................................. 11 Index ofAuthorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l1l I. Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Standard ofReview ............................................ 2 III. Summary ofthe Argument ...................................... 2 IV. Statement ofFacts ............................................. 3 V. Argument .................................................... 7 Issue One .................................................... 7 Issue Two .................................................. 12 Issue Three . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 VI. Conclusion .................................................. 23 Prayer ........................................................... 24 Certification ...................................................... 25 Certificate ofService .............................................. 26 Appendix Notice ofClarification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A

-ll-INDEX OF AUTHOR!TIES CASES Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014) ..................................... 15, 16, 19, 20,22 Burchfieldv. Tanner, 178 S.W.2d 681 (Tex. 1944) ................................................. 19 Cire v. Cummings, 134 S.W.3d 835 (Tex. 2004) ................................................. 15 Dow Chem. Co. v. Garcia, 909 S.W.2d 503 (Tex. 1995) ................................................. 15 Exparte Gibson, 811 S.W.2d 594 (Tex. Crim. App. 1991, no writ) ................................. 18 Gutierrez v. Dallas ISD, 729 S.W.2d 691 (Tex. 1987) ................................................. 10 Hanley v. Hanley, 813 S.W.2d 511 (Tex.App.-Dallas l991,nopet.) .............................. 18 Hickman v. Taylor, 329 U.S. 495 (1947) ...................................................... 9 Hill & Griffith Co. v. Bryant, 139 S.W.3d 688 (Tex. App. -Tyler 2004, pet. denied) ............................ 10 In reAcceptance Ins. Co., 33 S.W.3d 443 (Tex. App.- Fort Worth 2000, no pet.) ............................... 4 In reAlford Chevrolet-Geo, 997 S.W.2d 173 (Tex. 1999)(orig. proceeding) .................................... 7 In re CSXCorp., 124 S.W.3d 149 (Tex. 2003) .................................................. 7

-lll-In re DowAgrosciences, LLC, 2011 Tex. App. Lexis 723 (Tex. App.- Houston [14th Dist.]2011, orig. proceeding) ............ 9 In re Houston, 92 S.W.3d 870 (Tex. App.- Houston [14th Dist.]2002, orig. proceeding) ............ 4 Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985) .......................................... 2, 7, 14, 23 K-Mart v. Sanderson, 937 S.W.2d 429 (Tex. 1996) ........................................... 2, 8, 9, 24 Loftin v. Martin, 776 S.W.2d 145 (Tex. 1989) ................................................ 2, 8 Ordonez v. M W McCurdy & Co., Inc., 984 S.W.2d 264 (Tex. App. -Houston [1st Dist.] 1998) .......................... 20 United States Fidelity v. Rossa, 830 S.W.2d 668 (Tex. App.- Waco 1992, writ denied) ........................... 18 Wackenhut Corp. v. Gutierrez, No. 12-0136,2015 Tex. Lexis 112 (Tex. 20 15)(publication status pending) ........................ 21, 22 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ............................................... 2, 20 Wal-MartStores, Inc. v. Johnson, 106 S.W.3d 718 (Tex. 2003) ................................................. 23 West v. Solita, 563 S.W.2d 240 (Tex. 1978) ................................................. I0

-IV-STATUTES TEX.R.CiV.PROC. 196.4............................................ 13 APPENDIX Notice ofClarification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A

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

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

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

-1-II. STANDARD OF REVIEW A relatorwho attacks atrial courtrulingciting abuse ofdiscretion labors under

a heavy burden. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). Relator must show that the trial court's action was so arbitrary and unreasonable as to amount to a clear prejudicial error oflaw. Loftin v. Martin, 776 S.W. 2d 145, 146 (Tex. 1989). In other words, he must show that no judge could have reasonably made the same rulings that the trial court did. See Johnson, 700 S.W.2d at 917. In evaluatingthe trial court's rulings, this Court cannot substitute itsjudgment for that ofthe trial court, nor can it disturb a trial court decision that is based upon a fact issue unless that decision is arbitrary and unreasonable. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). III. SUMMARY OF THE ARGUMENT Relator did not meet his burden to show that the trial court's actions in overrulinghis voluminousandobfuscatingobjections andcompellingproductionwas
so arbitrary and unreasonable so as to amount to a clear and prejudicial error oflaw. The trial court's ruling was directly in line with Texas Supreme Court case K-Mart

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

-2-erroneous nor arbitrary and unreasonable, and therefore was not an abuse of discretion. Relator has also failed to show how the trial court abused its discretion in ordering the pmiies to share in the cost ofsubmitting the decedent's computer to a forensic expert for the retrieval of documents responsive to the requests for production that each party propounded. The trial court's actions were in line with Texas Rule ofCivil Procedure 196.4. Finally, the trial court's refusal to enter a spoliation order striking Real Party in Interest's pleadings and granting a default judgment was neither arbitrary nor unreasonable; it was an appropriate application ofthe standards enunciated by the Texas Supreme Court in Brookshire Bros., based upon the facts and circumstances ofthis case. Relator had not shown otherwise. IV. STATEMENT OF FACTS EdwinDennisCook ("Decedent")died onJuly 10, 2011, and lessthan amonth later the trial court appointed an Independent Executor ofhis Estate. (Tab 5). The IndependentExecutorimmediatelyinventoriedthe Decedent's safe andmade avideo recording ofthe contents. (Tab 5). The Independent Executor elected not to take possession ofthe coins in the safe that have become the issue in the underlying suit(the "Coins"), and instead left them there until April2012. 1 (Tab 5). Four months after collecting the Coins, the Executor filed suit against Real Party in Interest asserting various causes ofaction premised upon the allegation that Real Party in Interest stole some ofthe Coins. In December 2012, the Executor served discovery upon Real Party in Interest who returned his responsesto his attorney, JeffCrews, within 30 days. (Tab l(a)(ii)). Mr. Crews timely served responses to requests for admissions, but absolutely failed to serve responses to interrogatories or requests for production despite possessing Real Party in Interest's answers. (Tab I(a)(ii)). He thereafterfailed to respond to the Executor's Motion to Compel Discovery, and failed to attend the hearing thereon, which resulted in the entry of an order compelling the responses and imposing sanctions includingthe waiverofall objections. (Tab I(a)(ii)). Real Party in Interest did not know about this Motion or Order. (Tab l(a)(i) 70:18-71: 16; 76:5-16). Mr. Crews'sfailureswerecompoundedbytheExecutor's failure in connection with its Motion for Contempt: a failure to serve citation on Real Party in Interest as is required by law. 2 (Tab l(a)(ii)). Despite depriving Real Party in Interest ofhis
'Real Pmiy in Interest disputes the assertion that there was a discrepancy in the number of coins maintained in the safe by the Decedent at the time ofhis death and the number ofcoins that the Independent Executor took possession ofin April 2012.
2Due process requires that full and unambiguous notice ofan accusation ofcontempt be served on the alleged contemnor in a motion for contempt, show cause order, or equivalent legal -4-right to know that his attorney was failing to do hisjob and depriving Real Party in Interest ofhis right to protect his legal interests, the Executor moved forward on its contempt action and succeeded in having all ofReal Party in Interest's pleadings stricken- withoutthe existence ofany answer or argument to the contrary. (Tab 7). Mr. Crewsmanagedto remain unaware ofthe ContemptOrder, and ultimately served Real Party in Interest's Responses to Interrogatories and Responses to Requests for Production in May of2013, using the information that Real Party in Interest had timely provided in January ofthat year. (Tab l(a)(ii)). The combinedfailures ofMr. Crewsandthe Executorrelatingto discovery and citation ultimately ledtothe entry ofa defaultjudgmentagainstReal Partyin Interest. (Tab 8). Real Party in Interest hired new counsel to represent him in seeking a new trial, and eventuallythe death penalty sanctions and defaultjudgmentwere set aside. (Tab 9). Relator's contempt motion was reheard, and discovery sanctions were entered againstReal Party in InterestandJeffCrews. (Tab I0). Real Partyin Interest has since fully answered all of the discovery served upon him by producing all documents within his custody and control. (Tab I(a)(iii)).
process stating how, when, and by what means the party has been guilty ofthe alleged contempt. In reAcceptance Ins. Co., 33 S.W.3d 443,448 (Tex. App.- Fort Worth 2000, no pet.)(citing Cadle Co. v. Lobingier, 34 S.W.3d 598, 2000 Tex. App. LEXIS 6737, 2000 WL 797442, *I (Tex. App.- Fort Worth October 5, 2000, no pet. h.); Exparte Chambers, 898 S.W.2d 257, 262 (Tex. 1995)); see also In re Houston, 92 S.W.3d 870, 876 (Tex. App.- Houston [14'" Dist.] 2002. orig. proceeding). -5-Real Party in Interest served discovery upon Relator who responded with so many objections as to make his responses useless. (Tab 2(a)(ii)). Real Party in Interest filed a Motion to Compel which was granted in part (Tab 2); Relator now complains that the trial court abused its discretion in ordering the production of certain categories ofdocuments. Real Party in Interest also filed a Motion for Instruction after no agreement could be reached between he and Relator regarding how electronic information responsiveto discoveryrequestspropoundedby bothparties shouldbe removed from the Decedent's computer. (Tab 3(a)). The trial court entered an order directing how the information was to be retrieved and distributed, and dividing the cost equally betweenthe parties. (Tab 3). Thetrial courtreservedthe righttoreassess cost. (Tab 3). Relator claims this was an abuse ofdiscretion. Relator filed a Motion for Discovery Abuse Sanctions: Spoliation, asking the trial court to strike Real Party in Interest's pleadings, to enter a default judgment against him, and to levy additional monetary sanctions against him. (Tab I). The trial court, with the benefitofhavingheard live testimony from Real Party in Interest regarding his actions and intentions denied the requested relief. Relator complains that the trial court abused its discretion by not issuing death penalty sanctions for the

same discovery disputes it had already adjudicated.
-6-V. ARGUMENTS AND AUTHORITIES ISSUE No. I: The trial court overruled some of Relator's overused objections of "fishing expedition, vague, and overly broad" and ordered him to produce responsive documents within certain limited categories. Was the trial court's ruling commensurate with guiding principles oflaw? In order to be entitled to mandamus relief on this issue, Relator bears the burden of showing that the trial court acted without regard to accepted legal principles -that its rulings were so arbitrary and unreasonable that no other court could have reached the same determination. See Johnson, 700 S.W.2d at 917. Relator did not meet this burden. Relator cites only to Loftin v. Martin in support of his assettion that the Requests for Production propounded by Real Party in Interest were vague and an overly broad fishing expedition. See Petition at p. 19. Loftin, however, does not establish that the trial court acted without regard to controlling law, nor that the Requests at issue were overlybroad ora fishing expedition. A request is "overbroad" if it encompasses time periods, products, or activities beyond those at issue in the case, and therefore not reasonably tailored to include only relevant matters. In re Alford Chevrolet-Ceo, 997 S.W.2d 173, 180 n.l (Tex. 1999)(original proceeding). A "fishing expedition" is exemplified by requests for information that are not reasonably tailored as to time, place, or subject matter. In re CSXCorp., 124 S.W.3d
-7-149, 152 (Tex. 2003). Requests ofthese nature are impennissible, hence the Loftin decision that a general request for all documents that supported a claimant's allegations was impermissible. Loftin, 776 S.W.2d at 148. The Loftin court found that the request did not identifY "any particular class or type ofdocuments." !d. By contrast, the requests at issue in this case sought specific classes of documents- not generically "documents supporting Relator's allegations" without further limitation. (Tab 2(a)(ii)). Real Party in Interest sought documents directly relating to the Coins made the subject ofRelator's suit: the Decedent's receipt of them, the Decedent'stransport ofthem, Real Party in Interest's alleged theft ofthem, and the like. (Tab 2(a)(ii)). After its Loftin decision, the Texas Supreme Court definitively ruled that requests for documents in articulated categories are permissible. InK-MartCorp. v. Sanderson,the Texas SupremeCourtanalyzed arequest for all documents which related to, touched, or concerned the allegations ofthe lawsuit, and all documents reflecting the incident made the basis ofthe suit. 937 S.W.2d at 430. The defendant objected that the requests were overly broad and would require it to turn over its entire file, and cited to Loftinjust as Relator has done. !d. The Court affirmed the trial court's production order, finding that the request for all documents related to a specific incident and that a reasonable person could
-8-understand from the request what documents were responsive. 

### !d. at 430-31. Thetrial court'srulingwas appropriateunderK-Mart, especiallyin light ofthe factthatReal Party in Interest's requests were more specificthan the ones considered by the Texas Supreme Court. The ruling is also consistentwith this Court's decision in In re Dow Agrosciences, LLC, wherein requests for all documents in various categories were only limited by this Court to exclude patents not defined within the parties' settlement and license agreements; the requests were not characterized as overbroad or a fishing expedition simply because they sought all documents within specified categories. 20II Tex. App. Lexis 723 (Tex. App. -Houston [14'11 Dist.] 20II, orig. proceeding). There cannot be

- and in fact has not been

- any argument that Relator is not able to determine what documents are responsive orthat the categories ofdocuments soughtare not relatedto the causes ofactionplead. Relatoronly argues thathe would somehowbe requiredto allowReal Pm1y in Interestto perusehis entire evidence file. SeePetition atp. 20. Thisratherdramatic argumentrevealsRelator'strue motivation: he doesnotwanttoproducedocuments that evidencehis claim- orpotentiallyreveal that he has none. The United States Supreme Court, however, has made clearthat a party cannothidebehind objectionsto avoid producingevidence. Itheld in Hickman

v. Taylor that discoveryrules are to be accorded liberal treatment. 329 U.S. 495, 507
-9-(1947). A party cannot cry "fishing expedition" to preclude a party from inquiring into the facts underlying his opponent's case. !d. In Texas, discovery requests are to be viewed with a liberal spirit. 

### Hill & 

### Griffith Co. v. Bryant, 139 S.W.3d 688, 698 (Tex. App.- Tyler 2004, pet. denied). This liberal spirit is commensurate with the statedpurpose ofdiscovery in Texas: to allowthe parties to obtain full knowledge of the issues and facts before trial. West v. So/ito, 563 S.W.2d 240, 243 (Tex. 1978). The objective ofdiscovery is to prevent trial by ambush. 

### Gutierrez v. Dallas JSD, 729 S.W.2d 691,693 (Tex. 1987). Relator now asks this Court to undermine the trial court's ruling in order to allowhimto engage in atrial by ambush- iJTespective ofthe laws promulgatedbythe SupremeCourts ofboththeUnited States andTexas. Ifonefollowed Relator's logic, Real Party in Interest would have to somehow intuitprecisely what documents exist in support ofRelator's claim and ask for them by name. This, despite the fact that Real Pmiy in Interest is innocent ofthe charges levied against him and has no idea what documents Relator might rely on. IfRelator has evidentiary support for his claims, he will undoubtedly use it attrial; Real Pmiy in Interest is entitledto discover that proofbefore the trial. Moreover, Real Party in Interest would have to ensure that he used the same label for the document that Relator employs to ensure turnover; that fact is
-10-exemplified by the fight over Request for Production 23. Real Party in Interest requested "the Decedent'spersonalcalendar, appointmentbook, orotherrecords that demonstrate where the Decedent was on any given day during the year 20II." (Tab 2(a)(ii)). Relator objected as "irrelevant, overly broad, vague and not reasonably calculated to the discovery of admissible evidence" and a fishing expedition that would require him to produce "a soil sample from [the Decedent's] shoe or anything else the imagination can conjure." (Tab 2(a)(ii)). Real Party in Interest included the phrase "other records" to guard against a linguistic fight

- what he might call a calendar, Relator might call a day-planner, or something unknown to Real Party in Interest. (Tab 2(a)). This concern was well-founded; Relator's twisting that into a request for a "soil sample" reveals his obfuscating and demonstrates the need for the word "documents" in Real Party in Interest's requests. Focusing on the category of documents needed- as permitted by the Texas Supreme Court inK-Mart- guards against the nitpicking and avoiding in which Relator engages. The trial comi's production order does nothing more than allow Real Party in Interest to obtain information about the claims against him. It is appropriate under West, Gutierrez, and K-Mart, and does not constitute arulingthat is so far afield from abiding rules oflaw that it amounts to abuse ofdiscretion.

-11-ISSUE No.2: RelatorrequestedproductionofemailsthatReal Party inInterestcreated using a computer that Relator now possesses; Real Party in Interest requestedproduction ofelectronic andmagneticdatapotentiallyhoused on that same computer. The trial court entered an order ofinstruction to control the method by which electronic data was retrieved and disclosed, and directed the parties to split the associated cost. Did the trial court properly exercise its discretion? Relator requested that Real Party in Interest produce "the complete email contents of the Inbox, sent items, deleted items (or trash folder)" for any email account owned by Real Party in Interest from January 1, 2010 forward. (Tab l(a)(i) 32:2-7). Despitethe factthatthis discoveryrequest was nottailorednarrowlyto only seek emails that would be relevant to the purported theft that occurred between August 2011 and April 2012, Real Party in Interest was forced to respond in full because his attorney's negligence resulted in the waiver ofhis objections. (Tab I0). Real Pa1iy in Interest had used the Decedent's computer to generate emails because it was in thehouse he shared with Decedent(who was still alive in 201 0)andbecause it gave him the ability to attach scanned documents to his emails. (Tab I (a)(i) 29: 1- 4). Relator tookpossession ofthat computer, which precludes Real Party in Interest from taking any unilateral action to obtain the emails from Outlook. (Tab 7). Admittedly, Real Party in Interest deleted the emails from Outlook because they contained sensitive banking information, and thus they must be retrieved from

-12-the hard-drive by a forensic expert, but the issue ofwhere on the computer the data is stored is distinct from the issue ofhowdata from a computerin Relator'sexclusive possession should be obtained, authenticated, and produced. "How" would be an issue irrespective of whether Real Party in Interest's emails were maintained in Outlook, moved to the trash folder, housed in advertised folders on the desktop, or hidden away in a password-protected file. "How" is also an issue withrespectto any documents responsive to the Requests for Production propounded by Real Party in Interest; the same forensic examiner is the appropriate person to obtain and authenticate that electronic data. The trial court's order effectuates a method by which any data responsive to both parties' Requests for Production can be obtained and disseminated and the authenticity ofthat data verified. (Tab 3). Relator takes issue with the trial court's orderthat the parties split the cost- an order subjected to a reservation allowing the trial court the ability to reassess the cost later in the proceeding. (Tab 3). The trial court's orderis commensuratewith TexasRule ofCivil Procedure 196.4, whichtaxes thecostofextraordinarymeasuresto obtaindata againstthepartyrequestingthedata. TEX. R. CIV. PROC. 196.4. Relator has requested emails that Real Party in Interest generated on the computerthatRelatorhas possession of; he will not give Real Party in Interest access to the computer, so extraordinary measures are necessaryto obtain
-13-the requested data. Texas Rule ofCivil Procedure 196.4 taxes him with the cost of those extraordinarymeasures. Similarly,Real Partyin Interesthas soughtdocuments

on the computer and after Relator gave no indication that he would produce any responsivedocuments maintainedelectronically,thetrial courtprovideda framework by which that data could be obtained, and taxed Real Party in Interest with the cost. The trial court acted in accord with Texas Rule ofCivil Procedure 196.4, and with the demands of logic. Relator has not met his burden to show that no other judge could reasonably conclude that the trial court's ruling made sense. See Johnson, 700 S.W.2d at 917. He has offered absolutely no case law to demonstrate that the trial court's ruling was arbitrary, and instead premises his argument on what hesuspects Real Party in Interestwouldhaveretrieved from the Decedent'scomputer had he been given the right to physically inspect the same. Petition at p. 23. Suspicions are not an appropriate legal basis on which to seek mandamus relief, especially whenno partofthe trial record supportsthe ideathat Real Party inInterest requested access to the computerto obtain his own "personal information." Petition at p. 23. Norare invented facts anappropriatebasis; Relatoradvisesthis CourtthatReal Party in Interest deleted the Decedent's information from the computer, but fails to cite to the record for evidence of that. Petition at p. 23. Real Party in Interest
-14-testified only to deleting emails he created and to deleting the Decedent'sjunkmail for space concerns- an action Relator's attorney seemed to sanction. (Tab l(a)(i) 33:20-35:16). Relator has misrepresented that testimony to this Court through his argument that documents responsive to Real Party in Interest's discovery cannot be retrieved "due to defendant's actions in deleting the infonnation." See Petition at p. 24. His misrepresentations do not entitle him to mandamus relief, nor do fabricated
reasons that did not form the basis for the trial court's ruling like "recovery of personal information." Mandamus onlyissues when there is a clearright; ifthatright is premised upon facts that are doubtful or disputed, mandamus cannot issue. See Dow Chern. Co. v. Garcia, 909 S.W.2d 503, 505 (Tex. 1995). No mandamus is appropriate on this issue. ISSUENO.3: Did the trial court appropriately exercise its discretion when it denied Relator's request for a defaultjudgment due to spoliation ofevidence? Relator complains that the trial court denied his Motionfor DiscoveryAbuse Sanctions: Spoliation. This Comi must review that ruling under an abuse of discretion standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). Relator thus must establish that the trial court's decision not to (a) strike Real Party in Interest's pleadings, (b) enter a defaultjudgment against Real Party in Interest, and (c) award monetary sanctions, deviated so far from the standards promulgated in
-15-Brookshire Bros., that no other court could have reached the same determination. (Tab !(a));BrookshireBros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014). Relatorhas not even come close to can-ying that heavy burden. Specific intentis arequisite for a spoliation finding. SeeBrookshireBros., 438 S.W.3d at 14. Although he repeatedly uses the word "intentional" to describe Real Party in Interest's deletion ofemail, he cites to no evidence that demonstrates that Real Party in Interest deleted emails with the specific intent of concealing discoverable evidence. See Petition at p. 13; Brookshire Bros., Ltd., 438 S.W.3d at 14. Without evidence ofthis requisite "specific intent" Relator's argument that the trial court deviated from law absolutely fails. !d. In Brookshire Bros., the Texas Supreme Comi clarified the standards governing whether an act of spoliation has occurred and the parameters of a trial court's discretion to impose a remedy. !d. To conclude that a pmiy spoliated evidence, the court must find that (I) the spoliating party had a duty to reasonably preserve evidence, and (2) the pmiy intentionally or negligently breached that duty by failing to do so. !d. No Duty to Preserve Relator bore the burden ofestablishing that Real Party in Interest had a duty to preserve the full contents ofhis email, for a period beginningtwoyears before suit
-16-was filed and going forward. 

### BrookshireBros., 438 S.W.3d at 20; (Tab l(a)(i) 32:2- 7; Tab 5). Such a duty arises "only when a party knows orreasonably should know that there is a substantial chance that a claim will be filed and that evidence in its possession orcontrol will be material andrelevantto that claim." !d. Itis an absolute requisite that the accused knew or should have known that the evidence would be relevant and material to the claim at issue. !d. Relator thus bore the burden of showing that:
• Real Party in Interest knew that Relator would sue him; and

• knew that his personal emails3 would be material and relevant to the claims against him. The record contains absolutelyno indication, much less evidentiaryproof, that Real Party in Interest had any inkling that Relator would sue him. Itis also bereft of evidence or testimony that Real Party in Interest knew that his personal emails, including those written years before the purported theft, could be material and relevant to trumped up claims that would be brought years later. Realtor offered no evidence to the trial court to demonstrate that the lost emails are either material or

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

(a)(iii)); Appendix A. -17-relevantto his claims. (Tab I(a)). Relatorcurrently offersthis Courtno evidencethat the lost emails are material or relevant. See Petition at p. 15. He insteadattempts to offendthis Court's sensibilitiesby insinuatingthat Real Party in Interest has destroyed financial records- a falsity, and one not part ofhis MotionforDiscoverySanctions: Spoliation. (Tab 1(a)). It has been routinely stated that "courts 'must be on guard against confusing offenses to their sensibilities with obstruction ofthe administration of justice."' Exparte Gibson, 811 S.W.2d 594, 596 (Tex. Crim. App. 1991, no writ) (quotingBrown v. UnitedStates, 356 U.S. 148, 153 ( 1958)). Tothis end, courtsmustresolve all doubts in favor ofreaching a trial onthe actual merits ofthe case. Hanley v. Hanley, 813 S.W.2d 511, 518 (Tex. App.

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

**~Waco** 1992, writ denied). Relator also asks this Court to assume that Real Patiy in Interest's "communications" are both "material and relevant" to his claims. Petition at p. 15. Assumptions are not facts, and a trial court's refusal to enter sanctions based on assumptions does not amount to an abuse ofdiscretion. This Court may affirm the trial cou11's ruling on this prong ofthe test alone; there can be no spoliation finding without proofthat Real Pmiy in Interestknew that the emails would be material and relevant to a claim that he did not and could not have known would be brought against him.
-18-Breach o(Duty The trial court's ruling can also be affirmed on the basis that Relator did not meethis burden ofprovingthatReal Party in Interest intentionallybreached his duty. BrookshireBros., 438 S.W.3d at 20. (The party seeking a remedy for spoliation must demonstrate that the other party breached its duty to preserve material and relevant evidence.). A party must intentionally spoliate evidence in order for a spoliation instructionto constitute an appropriateremedy. !d. at 23. Thus, Relatorwasrequired to prove that Real Party in Interest acted with an "intent to conceal or destroy discoverable evidence." !d. While beingexamined by Relator's counsel, Real Party in Interest admitted to deletingemails from hisweb-based mail program as amatterofcourse,testifyingthat he had done so for years. (Tab l(a)(i)32:12-22). The trial court is thejudge ofhis credibility, and this Court cannot substitute itsjudgment. Burchfieldv. Tanner, 178 S.W.2d 681 (Tex. 1944). Nor should this Comibe mislead by Relator's rendition of the testimony; Real Party in Interest admitted to deleting emails from the Decedent's computer that contained his personal banking information because he did not trust Relator'scounsel, who ultimatelytookpossessionofthatcomputer. (Tab I(a)(ii)33 :2- 5). His testimony dispels the idea that the destruction was done to "conceal or
-19-destroy discoverable evidence," instead demonstrating that Real Party in Interest's true concern was to protect his banking information from persons he did not trust. The actions may have been ill-advised, but bad decisions are not evidence ofthe specific mens rea called for by Brookshire Bros. That evidence is absent from the record. Refusal ofa spoliation instruction without proofofintent is appropriate under Ordonez v. M W. McCurdy & Co., Inc., 984 S.W.2d 264 (Tex. App.- Houston 

### [P' Dist.] 1998). There the defendant driver testified that he threw away his log book, despite potentially being on notice about the claim, and the plaintiffargued that he "intentionally destroyed" the same to avoid its discovery. !d. at 273-74. Evidence showed that it was the normal course ofbusiness for the defendantto keep log books for a period ofsix months. !d. There was no evidence in that case that the log books
were destroyed for the purpose ofconcealing them from the plaintiff. !d. The trial comi did not en· in refusing a spoliation instruction. !d. Despite Relator's assertion to the contrary, a finding by the trial court that the requisite intent was absent is not "unreasonable"

- it is in line with Ordonez. It is also a factual finding not to be disturbed via mandamus. See Walker, 827 S.W.2d 839. The only way that Relator could have avoided establishing that Real Party in Interest acted with this specific nefarious intent would have been through a showing
-20-that Relator was deprived of any meaningful opportunity to present his case. BrookshireBros., 438 S.W.3d at 25. Relatordidnotoffer suchproofat the trial court level. To the contrary- he offered as evidence at the contempt hearing the very emails that Real Party in Interest had created on the Decedent's computer after scavenging from the computer hard-drive. (Tab I(a)(ii)). The only thing that would prevent Relator from presenting those recovered emails at trial in support of his claims is their abject irrelevance. Moreover, the trial court was well within its discretion to determine that Relator's access to Real Party in Interest's bankrecords, testimony, and whatever evidence it maintains in its so-called "evidence file" will allow Relatorto put on his case in chief. See Petition at p. 20 (reference to evidence file). One certainly would hope that Relator did not file suit against Real Party in Interest with no evidence of wrongdoing and only the hope of finding proof of wrongdoing in his emails; that would be the very definition ofa prohibited fishing expedition. For the trial court to give Relator the benefit of the doubt as to the existence of other evidence is generous - hardly grounds for the mandamus that Relator seeks. It is, instead, in line with the Texas Supreme Court's decision in Wackenhut Corp. v. Gutierrez, wherein the defendant allowed a video tape that may have recorded the accidentto be destroyed. No. 12-0136, 2015 Tex. Lexis 112 (Tex.
-21-20 15) (publicationstatuspending). TheTexas Supreme Courtfound that becausethe plaintiffhad otherevidence available to himhe was not "irreparably deprived ofany meaningful ability to presenthis claim." 

### !d. at*II. A spoliation instruction was not appropriate. !d. It is similarly not appropriate in this case; the trial court ruled correctly. Even ifthe trial courthadfound an intentional spoliationofrelevant evidence, Relator did not show at trial and has not addressed with this Court the other issues which must be considered in a spoliation ruling, including:

• the relevance ofthe evidence to key issues;

• harmfulness or helpfulness ofthe evidence; and

• whether the evidence is cumulative of other competent evidence that may be used instead ofthe destroyed evidence. Brookshire Bros., Ltd., 438 S.W.3d at 22-23. Without evidence addressing these points, the trial court correctly denied the spoliation motion; without evidence addressingthese points, Relatorhas failed to showhe is entitled to mandamus relief. Finally, at both the trial com1 level and in his mandamus action, Relator has failed to evidence his entitlement to a spoliation order (a) striking Real Party in Interest's pleadings; (b) instituting a defaultjudgmentagainst him; and (c) awarding additional monetary sanctions against him. (Tab !(a)). Ce11ainly BrookshireBros.,

-22-does not authorize the entry ofa defaultjudgment for a spoliation issue; in fact it characterizes a spoliation instruction as a "harsh" remedy and cautions against the impact the instruction can have on the fundamental fairness of a trial. !d. at 17. Remedies for spoliation are supposedto be designedto "restorethe partiesto arough approximation oftheir positions ifall evidence were available." Wal-Mart Stores. Inc. v. Johnson, I06 S.W.3d 718, 721 (Tex. 2003). None ofthe remedies solicitedby Relator in his spoliation motion would have restoredthe parties to the positionsthey occupied ifReal Party in Interest's emails still existed. Hadhe producedemails from 2010 (prior to the Decedent's death and prior to the purported theft) Relator would have beenpossessedofsome irrelevant documents- not a defaultjudgment. Relator sought relieffar in excess ofarestoration ofthe status quo, and the trial courtdid not abuse its discretion in denying it.VI. CONCLUSION The Texas Supreme Court has spoken to almost all the issues raised in this Petition for Mandamus. First, withrespect tothe mandamus itself, the Courthas said that a relator who attacks a ruling for an abuse ofdiscretion labors under a heavy burden and must establish that the facts and law only permit one decision. Johnson, 700 S.W.2d 91 7. Underthis standard,Relatorwasrequired to provethe arbitrariness and unreasonableness ofthe trial court's actions with respect to his three mandamus
-23-points. InK-Mart Corp., the Court opined that asking for all documents within a certain category was acceptable and did not amount to a demand that the respondent turn over his entire file since a reasonable person would be able to read the request and determine what was responsive. K-Mart Corp., 937 S.W.2d at 430. The trial court's actions were appropriate under this standard. Though the Texas Supreme Court has not addressed the allocation ofcosts under Texas Rule ofCivil Procedure 196.4, the statute is clear and the trial court's balancing ofcosts against both parties who seek electronic data from the same computer, coupled with its reservation to
reassess cost, demonstrate compliance with the controlling law. Finally, there is the issue of spoliation about which the Texas Supreme Court has recently spoken at length. The trial court's decision not to grant Relator's Motion for DiscoveryAbuse Sanctions: Spoliation, which sought relieffar in excess ofa restoration ofthe status quo, was appropriateunderBrookshireBros., Wai-MartStores, Inc., and Wackenhut. Direct legal authority not only authorized the trial court's conclusions, but mandated them; there was no abuse ofdiscretion in the rulings about which Relator complains, and mandamus should not issue. WHEREFORE, PREMISES CONSIDERED, Real Party in Interest, Ray Moghaddam, asks the Courtto deny Relator's Petition for Writ ofMandamus, award

-24-him fees and costs, and granthim such other and further reliefto whichhe may show himselfentitled.
Respectfully submitted, ostrommorris, PLLC

.

# ~~:<

# a/\_0--d-
B . ·-···' ASON B. OSTROM (TBA #24027710) NICOLE SAIN THORNTON (TBA #24043901) 6363 Woodway, Suite 300 Houston, Texas 77057 713.863.8891 713.863.1051 (Facsimile) jason@ostrommorris.com nicole@ostrommoJTis.com Attorneys for Real Party in Interest, Ray Moghaddam

CERTIFICATE OF COMPLIANCE I certifY that the Response to Petition for Writ ofMandamus was created on a computer and contains 5,752 words.

-25-CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the foregoing forwarded in compliance withthe Texas Rules ofAppellate Procedure onthe

### :2'1~ day of

### ~obow,rlj 2015 to: Mr. Micah Fortson, III 2702 Jackson Street Houston, Texas 77004 713.533.1520 713.533.1571 (Facsimile) Mr. Jeffrey Crews 1314 Texas Ave., Suite 1120 Houston, Texas 77002 713.228.2100 713.228.2101 (Facsimile)

-26- JaSon B. Ostrom Nicole Sain ThorntonAPPENDIX 

### Notice ofClarification ............................................. 

### A., DV

INTilE ESTATE OF EDWIN DENNIS COOK, DECEASED DATA-ENTRY PICK UPTHIS DATE

CAUSENo. 406,325-401 § § § § § FILED 211912015 5:35:41 PM Stan Stanart County Clerk Harris County PROBATE COURT 4

IN THE !'ROBATE COURT

NUMBER FOUR(4) OF HARRIS COUNTY, TEXAS NOUCE OF CLARfFY!NQ Aff!DAYJI To 1HE HONORABLE COURT: PLEASETAKENOUCE that the AffidavitofRahamMoghaddamclarifyingtestimony he gave on July tO. 2014, attached hereto as Exhibit A, is being filed in accordance with the Texas Rules ofCivil Procedure. Respectfully submitted, ostr 

# rn_,0M-

**,..~As"'o"'N"s~.~o::.s~TR2o>:M::..:** (TBA #24027710) iason@ostrommorris.com R. KEITH MORRIS, ill (TBA #24032879) keith@ostrmnmonis com 6363 Woodway, Suite 300 Houston,Texas 77057 713.863.8891 713.863.1051 (Facsimile)

Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy Attest: 2/24/2015 

### Stan Stanart, County Clerk Harris County, Texas


### ConsuelaArroyoCERTIFICATE OF SERVICE I do hereby certifY that a true and correct copy of the foregoing was served in accordance with Rules 21 and 21 on the ...lLday of 

### r'b'7 2015 to: Mr. Micah Fortson, III 2702 Jackson Street Houston, Texas 77004 713.533.1520 713.533.1571 (Facsimile) Mr. Jeffrey Crews 1314 Texas Ave., Suite 1120 Houston, Texas 77002 713.228.2100 713.228.2101 (Facsimile)

# ~7?c;f2 ___....**~** / 

### c:___

## ~/J=---- 1 on B. Ostrom Nicole Sain Thornton

Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 2/24/2015 

### Stan Stanart, County Clerk Harris County, Texas

# ..Ltl~lQI.U.lm.,Ql~L~Qhr~!ANw:=:...:::..:...~rY-Deputy ConsuelaArroyoSTATEOFTEXAS COUNTY OF HARRIS § § § AFFIDAVIT OF RAHMAN MOOHADDAM CameonRahmanMoghaddamwhobeingdulyswambyme,onhisoathdeposed as follows: Myname is Raham Moghaddam. I am overthe age of 18 years, ofsound mind, capable of making this affidavit, and personally acquainted with the facts stated herein which are true and correct.OnJuly 10, 2014, Itestifiedin Harris County Probate CourtNumberFourin connection with the Estate ofEdwin Dennis Cook, Deceased. While beingexamined by Micah Fortson, Itestified I did not leave any bank accounts out ofmy answer to Interrogatory Number One at the time I answered it. Ididnot includeanyIranian bank accounts in my answerto InterrogatoryNumberOne nor in my live recitation ofbank accounts because I do not own any Iranian bank accounts. Later in questioning, I testified to making wiretransfers from mybank account to the bank account of another individual within the United States. These transfers were done with the agreement that a similar transaction would occur in Iran with Iranian Toman, and that no United States Dollars would ever leave the United States. This testimony has been construed as meaning that Tomanwouldbe deposited in my bankaccountinIran. Thatis notcorrect; l do not haveabank accountin Iran. Thedepositin Iran was made into an accountowned by my

**brother~inwJaw** who uses the monies to provide for my elderly mother's medical care and housing. Any testimony that I have an account in Iran is not accurate and I believe lack ofclarity is a result ofthe fact that English is not my first language. Further Affiant Sayeth Not.

SWORN TO and SUBSCRIBED before me, the undcrsigne February, 2015.

EXHIBIT 

# lA is J1'-day of

Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy Attest: 2/24/2015 

### Stan Stanart, County Clerk Harris Couuty, Texas



# "~llliK!Lvwr Consuela Arroyo Deputy