# No. 01-14-00776-CV

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________________ __________________________________________________ Schlumberger Limited and Schlum berger Technology Corporation, Appellants/Cross-Appellees, V
. Charlotte Rutherford, Appellee/Cross-Appellant.

________________________ ______________________ ____________________ On Appeal from the 127th Judicial Dist rict Court of Harr is County, Texas Trial Court Cause 2014-13621

________________ __________________________________________________ CHARLOTTE RUTHERFO RD’S REPLY BRIEF AS CROSS-APPELLANT

________________ __________________________________________________ Joseph Y. Ahmad State Bar No. 0094100 Timothy C. Shelby State Bar No. 24037482 Adam Milasincic State Bar No. 24079001 A HMAD , Z AVITSANOS , A NAIPAKOS , A LAVI & M ENSING P.C. 1221 McKinney Street, Suite 3460 Houston, Texas 77010 Richard B. Specter ( pro hac vice ) California State Bar No. 114090 C ORBETT , S TEELMAN & S PECTER 18200 Von Karman Avenue, Suite 900 Irvine, California 92612 Thomas C. Wright State Bar No. 22059400 Shelley J. White State Bar No. 24056520 Raffi O. Melkonian State Bar No. 24090587 W RIGHT & C LOSE , LLP One Riverway, Suite 2200 Houston, TX 77056 Tel: 713-572-4321 Fax: 713-572-4320 Counsel for Charlotte Rutherford ACCEPTED 01-14-00776-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 3/13/2015 5:36:40 PM CHRISTOPHER PRINE

CLERK2 TABLE OF CONTENTS Page
TABLE OF CO NTENTS ........................................................................................... 2 INDEX OF AUT HORITIES ...................................................................................... 3 PRELIMINARY ST ATEMEN T ............................................................................... 5 ARGUMENT ............................................................................................................. 6 I. Schlumberger’s construction of the TCPA is contrary to its plain langua ge. ................................................................................................. 6 A. The TCPA does not limit its protections to speech made in a public setting. ................................................................................. 6 B. This Court has refused to re quire a nexus to participation in governme nt. ....................................................................................... 9 II. Rutherford’s construction of th e TCPA does not lead to absurd results. ............................................................................................................ 13 III. The record does not include clear and specific evidence of each breach-of-contract element. ........................................................................... 16 CONCLUSI ON ........................................................................................................ 24 CERTIFICATE OF CO MPLIANCE ....................................................................... 26 CERTIFICATE OF SERVICE ................................................................................ 273 INDEX OF AUTHORITIES Page Cases Avila v. Larrea , 394 S.W.3d 646 (Tex. A pp.—Dallas 2012, pet. denied) .................................................................................................................. 12 Better Bus. Bureau of Metro. Hous ton, Inc. v. John Moore Servs., Inc. , 441 S.W.3d 345 (Tex. App.—Houst on [1st Dist.] 2013, pet. denied) .............................................................................................................. 6, 10 Burkhart v. Burkhart , 960 S.W.2d 321 (Tex. App.—Houston [1st Dist.] 1997, writ denied) ...................................................................................... 15 Cheniere Energy, Inc. v. Lotfi , 449 S.W.3d 210 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ....................................................................................... 10 City of Keller v. Wilson , 168 S.W.3d 802, (T ex. 2005) .......................................... 19 Combined Law Enforcement A ss’n of Tex. v. Sheffield , No. 03-13- 00105-CV, 2014 WL 411672 (Tex. A pp.—Austin Jan. 31, 2014, pet. filed) (m em. op.) ............................................................................................ 10 Elliott v. Perez , 751 F.2d 1472 (5th Cir. 1985) ....................................................... 16 i4i Ltd. P’Ship v. Microsoft Corp. , 598 F3d 831 (Fed. Cir. 2010) .......................... 13 In re Crown Castle Int’l Corp. , 247 S.W.3d 349 (Tex. App.—Houston [14th Dist.] 2008, orig . proceeding) ..................................................................... 15 Litton Indus. Prods., Inc. v. Gammage , 668 S.W.2d 319 (T ex. 1984) .................... 20 Madariaga v. Morris , 639 S.W.2d 709 (Tex. App.—Tyler 1982, writ ref’d n.r. e.) ............................................................................................................ 22 Medina v. Tate , 438 S.W.3d 583 (Tex. App.—Houston [1st Dist.] 2013, no pet. ) ........................................................................................................ 10 Mekhail v. Duncan-Jackson Mortuary, Inc. , 369 S.W.3d 482 (Tex. App.—Houston [1st Dist .] 2012, no pe t.) ............................................................ 18 Paul E. Hawkinson Co. v. Dennis , 166 F.2d 61 (5th Cir. 1948) ............................. 13 Rankin v. McPherson , 483 U.S. 378 ( 1987) .............................................................. 8 Rivers v. Johnson Custodial Home, Inc. , No. A-14-CA-484-SS, 2014 WL 4199540 (W.D. Tex. Aug. 22, 2014) .............................................................. 74 Schimmel v. McGregor , 438 S.W.3d 847 (Tex. App.—Houston [1st Dist.] 2014, pet. filed) .......................................................................................... 13 St. Martin Evangelical Lutheran Church v. S. Dakota , 451 U.S. 772 (1981) ..................................................................................................................... 9 Stafford v. S. Vanity Magazine, Inc. , 231 S.W.3d 530 (Tex. App.— Dallas 2007, pet. denied) ...................................................................................... 22 Strom v. Memorial Hermann Hosp. Syst. , 110 S.W.3d 216 (Tex. App.—Houston [1st Dist.] 2003, pet. de nied) ..................................................... 15 Unigard Sec. Ins. Co. v. Schaefer , 572 S.W.3d 303 (T ex. 1978) ............................ 14 Whisenhunt v. Lippincott , 416 S.W.3d 689 (Tex. App.—Texarkana 2013, pet. f iled) ...................................................................................................... 7 Wright v. Wal-Mart Stores, Inc. , 73 S.W.3d 552 (Tex. App.— Houston [1st Dist.] 2002, no pe t.) ........................................................................ 20
Statutes T EX
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. C ODE § 27.001 ............................................... 7, 8, 9, 12, 14 T EX
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. C ODE § 27.002 ....................................................... 9, 14, 16 T EX
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. C ODE § 27.003 .................................................................. 12 T EX
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. C ODE § 27.005 ........................................................... 14, 24 T EX
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. C ODE § 27.010 ........................................................... 13, 14 U.S. C ONST

. art. I, § 8............................................................................................... 12

Other Authorities Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 31 (Amy Gutmann ed., 1997) ........................................................................ 65 TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: Charlotte Rutherford presents this re ply brief in furthe r support of her request that the Court reverse the portion of the trial court’s order denying the motion to dismiss as to the contract cl aim asserted by Schlumberger Limited and Schlumberger Technology Corporation (c ollectively “Schlumberger”) and remand this case to the trial court for (1) a de termination of the amount of additional attorney’s fees that are owed to Rutherfo rd and (2) rendition of a final judgment in Rutherford’s favor. PRELIMINARY STATEMENT As established in Rutherford’s previous briefs, Schlumberger did not file this lawsuit because some inexpensive thumb drives went missing. And Schlumberger did not file false affidavits to support a temporary restrainin g order because it believed Rutherford, a highl y rated lawyer whom Schl umberger had employed for almost seven years, was using trade secr ets against it. Schlumberger filed this lawsuit out of a desire to demean Rutherfo rd’s reputation so as to derail the ‘319 patent-infringement case currently pending in federal court. Be cause Schlumberger has no clear and specific evidence of any of the false and vindictive things it has alleged against Rutherford, the entire case should have been dismissed.6 ARGUMENT I. Schlumberger’s construction of the TCPA is contrary to its plain language. According to Schlumberger, the TCPA affords protection only to petitioning and association activities that involve communications broadcasted publicly and having some nexus to public policy. To find support for this position, Schlumberger relies heavily on legisla tive history, dicta, and a concurring opinion—essentially, everything but the word s actually used in the TCPA. This is not surprising because, under the plain mean ing of the terms defining the TCPA’s scope, Rutherford prevails. See Better Bus. Bureau of Metr o. Houston, Inc. v. John Moore Servs., Inc. , 441 S.W.3d 345, 353 (Tex. A pp.—Houston [1st Dist.] 2013, pet. denied) (stating that court’s primar y objective in construing the TCPA is to “give effect to the legislature’s intent by relying on the plain meaning of the text adopted by the legislatur e.”) (emphasis added); see also Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 31 (Amy Gutmann ed., 1997) (recalling quip that “[o]ne should consult the text of the statute . . . only when the legislative history is ambiguous,” and la menting that joke is “no longer funny” because “[r]eality has overtaken parody”). A. The TCPA does not limit it s protections to speech made in a public setting. Contrary to Schlumberg er’s suggestion, the TCPA does not limit its protections for associati on and petitioning ac tivities only to communications made7 publicly. The Legislature could easily have restricted the TCPA’s application based on who overhears the communication, but it did not. The Legislature chose instead to define “communicat ion” broadly to include any “statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.”
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. C ODE § 27.001(1). The cases Schlumberger cites do not support its attempt to amend the definition of a “communica tion” by adding the words “made in a public setting.”
See Whisenhunt v. Lippincott , 416 S.W.3d 689 (Tex. App. —Texarkana 2013, pet. filed); Rivers v. Johnson Custodial Home, Inc. , No. A-14-CA-484-SS, 2014 WL 4199540 (W.D. Tex. Aug. 22, 2014). Whisenhunt is based entirely on the express statutory link between the right of free sp eech and matters of “ public concern.” 416 S.W.3d at 696. There, the administrator of a medical partnership sent internal emails criticizing one of the partners. Id. at 692–94. The partner sued for
defamation and tortious interference. Id. at 694. The administrator moved for dismissal on the ground that his emails we re protected by the right of free speech.
Id. at 694–95. Because the TCPA define s “free speech” to include only
communications “made in connection w ith a matter of public concern,” T EX
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. C ODE § 27.001(3), the court inferre d that private conversations could never involve public c oncerns. 416 S.W.3d at 696.8 The Whisenhunt court was mistaken to assume that private conversations can never involve public concerns or enjoy constitutional protections. See, e.g. , Rankin v. McPherson , 483 U.S. 378, 386–97 (1987) (f inding that co-worker’s remark to another employee about assassinating President Reagan was constitutionally protected despite occu rring in private workplace conversation). Nevertheless, Whisenhunt is easily distinguished because it did not involve any petitioning or association activity. The c ourt considered only whether protected speech was involved. Unlike the statutory de finition of the “right of free speech,” the definitions of the “right to petition” and “right of association” do not include any limitation based on “matte r[s] of public concern.” See T EX
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. C ODE § 27.001(2)–(4). The Whisenhunt court itself recognized this key distinction, observing that it would not have reached the same result in a “right to petition” case. 416 S.W.3d at 699 n.14. Rivers , an unpublished decision of a federal di strict court, is also no help to Schlumberger. 2014 WL 4199540, at *2. That case, like Whisenhunt , involved only the “free speech” prong of the TCPA. A nd the federal district court followed Whisenhunt because the defendants “made no effort to respond to its holding or reasoning, or to distinguish it.” Id. To the extent Whisenhunt or Rivers can be read as anything more than specific applications of fr ee speech issues, Rutherford respectfully submits the9 cases were wrongly decided in light of the TCPA’s plain text. Not a single word in the statute suggests that free speech—let alone petitioning or free association—is protected only if made in a public setting. See T EX
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. C ODE § 27.001(2)–(4). B. This Court has refused to require a nexus to participation in government. Schlumberger is correct that the TCPA states its purpose is to “encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participat e in government to the maximum extent permitted by law.” T EX
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. C ODE § 27.002. But Schlumberger is incorrect that this general statement of purpose overrides section 27.001’s precise definitions of the “right to petiti on” and “right of association.” See St. Martin Evangelical Lutheran Church v. S. Dakota , 451 U.S. 772, 791 n.19 (1981) (observing that general statements of legislative purpose “cannot defeat the specific and clear wording of a statute”). Applying the appropriate rules of statutory construction and recognizing that the clear text of s ection 27.001 expands the common-law definitions of petitioning a nd association, this Court already has rejected Schlumberger’s argument: [Appellee’s] interpretation pl aces great weight on the words “and otherwise participate in government” as a limitation on the preceding list of “constitutional rights” that the statue is intended to “encourage and safeguard.” But this interpretation would render completely10 meaningless the references to the constitutional rights to “speak freely” and “associate freely,” if neither adds any additional meaning to the protection of the constitutional right “to petition” and to “otherwise participate in government.” Better Bus. Bureau, 441 S.W.3d at 353 (internal citations omitted); accord Combined Law Enforcement A ss’n of Tex. v. Sheffield , No. 03-13-00105-CV, 2014 WL 411672, at *2 n.1 (Tex. App.—Austin Jan. 31, 2014, pet. filed) (mem. op.) (stating that text of TC PA does not limit its scope). The court’s opinion in Cheniere Energy, Inc. v. Lotfi does not change anything. 449 S.W.3d 210, 216 (Tex. App.—Houston [1st Dist.] 2014, no pet.). In that case, a different panel of this C ourt observed that the TCPA requires some nexus between “the communication used to invoke the TC PA and general parameters of First Amendm ent protection” without diff erentiating or even citing Better Business Bureau

. See 449 S.W.3d 210, 216 (Tex. A pp.—Houston [1st Dist.] 2014, no pet.). Better Business Bureau cannot be overturned absent a decision of the Court sitting en banc or a material cha nge in the statute, neither of which has occurred here. See Medina v. Tate , 438 S.W.3d 583, 588 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“Absent a de cision from a higher court or this court sitting en banc that is on point and cont rary to the prior panel decision or an intervening and material change in the statutory law, this court is bound by the prior holding of another panel on this court.”).11 Moreover, Cheniere Energy ’s statement regarding a nexus requirement is dicta. That appeal arose from an in- house lawyer’s suit against her former employer and several co-wor kers for retaliatory firi ng. 449 S.W.3d at 211. The trial court denied the co-workers’ motion to dismiss tortious interference claims under the TCPA. Id. at 212. In deciding whether the co-workers met their burden to show the TCPA applied, the Court noted that the co-workers did not file any affidavits or other evidence establis hing a communication that qualified for protection under the TCPA; instead, they relied exclusively on the factual allegations in the petition. Because those factual allegations supported more than one equally plausible conclusion, the C ourt concluded the co-workers did not satisfy their burden. Id. at 213–15. Accordingly, the Cheniere Energy holding concerns the sufficiency of the pleadings and evidence, not the nature of the communication. Id. Contrary to Schlumberger’s assertion, the issue for this Court is not whether Rutherford’s activities are protected by the United States or Texas Constitutions. The issue is whether Rutherford exercise d rights protected by the TCPA. Had it wanted to, the Legislature could have wr itten the TCPA to apply only whenever a lawsuit is based on a party’s exercise of constitutional rights, making the statute’s scope co-extensive with First Amendmen t doctrine. But the Legislature did not write that statute. Instead it chose to cove r any legal action that is based on, relates12 to, or is in response to the party’s exerci se of (1) the right of free speech; (2) the right to petition; or (3) the right of association. See T EX
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. C ODE § 27.003. All three of these terms have st atutory definitions considerably broader than what constitutional law may have otherwise covered. See id. § 27.001(2)–(4). And it makes sense that the Legislatur e would not want to hinge the TCPA’s meaning or applicability on ever-evolvi ng concepts of constitutional law. If the Court disagrees, however, any standard requiring a communication on a matter of “public concern” is satisfied here. The TCPA makes clear that “a good, product, or service in the marketplace ” is a matter of “public concern.” T EX
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. C ODE § 27.001(7)(E). Dyna mic 3D’s lawsuit, and Rutherford’s alleged communications, relate to Dynami c 3D’s ‘319 patent and Schlumberger’s Petrel software. The Petrel software is a product or service in the marketplace and thus qualifies as a “public concern.” See id. ; see also Better Bus. Bureau , 441 S.W.3d at 353–54 (review of home repair service was “ public concern” under the TCPA); Avila v. Larrea , 394 S.W.3d 646, 655 (Tex. App.—Dallas 2012, pet. denied) (attorney’s legal services i nvolved “public conc ern” under TCPA). Moreover, Dynamic 3D’s patent rights are a public concern as a matter of constitutional law, see U.S. C ONST

. art. I, § 8, cl. 8, and “ it is the public interest which is dominant in the patent system.” Mercoid Corp. v. Mid-Continent Inv. Co. , 320 U.S. 661, 665 (1944); see also i4i Ltd. P’Ship v. Microsoft Corp. , 598 F3d13 831, 863 (Fed. Cir. 2010) (pat ent suits implicate public interests of consumers, licensees, and manufacturers), aff’d , 131 S. Ct. 2238 (2011); Paul E. Hawkinson Co. v. Dennis , 166 F.2d 61, 63 (5th Cir. 1948) (“[T]h is is a patent suit and as such there is a public interest involved . . . .”). 1
II. Rutherford’s construction of the TCPA does not lead to absurd results. Schlumberger suggests that Rutherfo rd’s views of the petitioning and association activities protected by the TCPA “abrogate or subs tantially undermine longstanding Texas statutory and common law remedies for tortious and unlawful conduct.” (Cross-Apes. Br. at 40) Accordi ng to Schlumberger, a broad definition of the right to petition the courts will bring all malicious prosecution and abuse-of-process claims within the scop e of the TCPA, which the Legislature could not have intende d. And a broad definition of the “right of association” will allow defendants to escape liability for viol ations of the Texas’s Free Enterprise and Antitrust Act of 1983, the Insurance Code, and anti-discri mination laws—also something not intended by the Legislatur e. These arguments are red herrings.

1 Schlumberger also contends the commercial-activ ity exception stated in section 27.010(b) removes this case from the protection of the TCPA. Schlum berger made this same argument in its brief as appellant, and Rutherford’s prev ious response explains that the exception does not apply because the co mmunications at issue do not arise out of the sale or lease of goods, services, or an insurance product. See T EX
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. C ODE § 27.010(b). Moreover, the intended audience for Rutherford’s communi cations was either her employer or the federal court, not the buyers and customers protected by the exception. See id., Schimmel v. McGregor , 438 S.W.3d 847, 857–58 (Tex. App.—Houston [1st Dist.] 2014, pet. filed). For the purpose of this reply, Rutherford incorporat es the arguments in her brief as appellee by reference. (Ape. Br. at 44–46)14 Again, the best expression of the Legislature’s intent is “the plain meaning of the text adopted.” Better Bus. Bureau , 441 S.W.3d at 353. To prevent retaliatory games like the one Schlumberger is playi ng here, the TCPA applies to any “cause of action” filed “in response to” protected conduct. T EX
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. C ODE §§ 27.001(6), 27.002, 27.005(b). The TCPA does not contain any provision that states only certain claims are subject to its protection. Quite the opposite, it applies
to any “legal action” that implicates th e rights defined by the statute. Id. § 27.003(a). Where the Legislature intended to exempt specific causes of action from the TCPA’s all-encompassing scope, it did so expressly. Id. § 27.010(c)–(d) (exempting all claims for personal injury, wrongful death, survival, and related to insurance). The Legislature already addressed Schl umberger’s concerns about insurance cases by expressly excluding all actions brought under the Insurance Code or arising out of an insurance contract from the TCPA. Id. § 27.010(d). But the other claims for which Schlumberger feigns co ncern are not listed among the causes of action exempt from the TCPA’s protections. Id. That omission must be considered intentional. See Unigard Sec. Ins. Co. v. Schaefer , 572 S.W.3d 303, 307 (Tex. 1978) (“When specific exclusions or ex ceptions to a statute are stated by the Legislature, the intent is usually clear that no others shall apply.”).15 Not only are the claims Schlumberger warns about missing from the TCPA’s stated exemptions, but they are also missi ng from this lawsuit. This lawsuit does not involve any claims for violation of th e State’s antitrust, anti-discrimination, or insurance laws. And there is no claim for malicious prosecution or abuse of process. The only claim Rutherford is asking this Court to consider is Schlumberger’s breach of contract claim, which, for all the reasons stated in Rutherford’s briefing and pursuant to Schlumberger’s clear admission, Schlumberger filed in response to Ruthe rford’s decision to as sociate with a new company for the purpose of enforcing its pa tent portfolio and he r perceived role in a subsidiary company’s patent-infringement suit. 2 Moreover, Schlumberger misses a broader point. The TCPA does not insulate any tortfeasor or wrongdoer from liability. It simply adds an additional layer of procedural protection. 3 All of the claims Schlumberger has singled out as

2 The pleadings and evidence establish that Schlumberger began preparations for this retaliatory suit only three days after th e ‘319 patent liti gation was filed. ( Compare 1 CR 270, with 1 CR 284–86). In its own petition, Schlumberger acknowledged targeting Rutherford “as a result of [the ‘319 pate nt] litigation,” and, in interroga tory answers, again confessed that it did not make any accusations of theft against Rutherford “until a lawsuit was filed against Schlumberger.” (1 CR 15; 2 CR 505)

3 The law incorporates numerous other proced ural and substantive hurdles that still allow meritorious claims to proceed. See, e.g. , In re Crown Castle Int’l Corp. , 247 S.W.3d 349, 354 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding) (discussing heightened, substantive pleading requirement for derivative suits under Delaware law); Strom v. Memorial Hermann Hosp. Syst. , 110 S.W.3d 216, 227 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (discussing “heavy” burden on me dical malpractice plaintiffs to comply with very specific requirements for expert reports a nd severe sanctions for failure to comply); Burkhart v. Burkhart , 960 S.W.2d 321, 323 (Tex. App.—H ouston [1st Dist.] 1997, writ denied) (discussing elevated proof requireme nts in certain child- custody-modification16 being at risk for extinction may still be a sserted so long as they are supported by clear and specific evidence. See T EX
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. C ODE § 27.002 (explaining that statute allows “meritorious lawsuits for demonstrable injury” to proceed even if the suit implicates prot ected rights). If the TCPA did create a liability shield for entire classes of to rts or statutory violations, perhaps Schlumberger’s arguments wo uld make more sense. Be cause the TCPA is not a liability shield, however, Schlumberger’s argument has no more support in logic than it does in the statute’s text.
III. The record does not include cl ear and specific evidence of each breach-of-contract element. The parties have offered competing inte rpretations of the TCPA’s “clear and specific evidence” standard. 4 To resolve this appeal, however, the Court need not decide which interpretation is correct . Even if circumstantial evidence is considered, Schlumberger failed to prove a prima facie case of br each of contract.

proceedings); Elliott v. Perez , 751 F.2d 1472, 1476–82 (5th Cir. 1985) (discussing elevated burdens in federal immunity cases).

4 Schlumberger argues any cons truction of the TCPA that excl udes circumstantial evidence runs afoul of the Texas Constitution’s open-courts provision. Schlumberger made this same argument in its brief as appellant. As stated in Rutherford’s previous response, the “clear and specific evidence” standard hardly creates an impossible condition th at would violate the Texas Constitution, and at least one Texas c ourt already has considered and rejected Schlumberger’s argument. See Combined Law Enforcement Ass’n of Tex. , 2014 WL 411672, at *10. For the purpose of this reply, Ruth erford incorporates the arguments in her brief as appellee by refe rence. (Ape. Br. at 49–52)17 Schlumberger contends that part of th e trial court’s order refusing to dismiss the contract claim must be affirmed be cause Schlumberger presented clear and specific evidence that:

 Rutherford breached the confidentiality agreement by “delet[ing] files, including numerous files whose name s clearly signify IP content, from her company-issued laptop.” (Cross-Apes. Br. at 65)

 Rutherford breached the confidentiality agreement by “fail[ing] to return drives containing confidential Sc hlumberger trade secrets.” ( Id. )

 Schlumberger is entitled to “moneta ry compensation” because it owned the drives Rutherford failed to return. ( Id. at 69)

 Schlumberger is entitled to “specifi c performance of the confidentiality agreement to have its devices and information returned.” ( Id. ) When the evidence offered by Schlumberger to support each of these allegations is reviewed carefully, however, the holes in Schlumberger’s case are apparent. First, Schlumberger has not presen ted any specific evidence explaining whether the alleged “deletions” from Ruthe rford’s company-issued laptop resulted in the actual loss of information. Cowen di scerned the names of the items “deleted,” but his affidavit does not stat e that the alleged deletion was anything more than sending those items to a recyc ling bin where they could be recovered. (4 CR 1341) Schlumberger’s own Executiv e IT Support person explained that Schlumberger’s “auto backup” system stored the contents of Rutherford’s laptop to Schlumberger’s server every day. (4 CR 1209) If the files on Rutherford’s laptop were stored on the company server or could otherwise be recovered, then the18 alleged deletions are not a breach of the confidentiality agreement that has resulted in harm warranting damages. Nor is it a reasonable construction of a standard employee confidentiality agreement that an employee breaches that agreement every time she deletes a file from her computer. See Mekhail v. Duncan-Jackson Mortuary, Inc. , 369 S.W.3d 482, 485 (Tex. App. —Houston [1st Dist.] 2012, no pet.) (observing that, under de minimus non curat lex doctrine, “law does not care for, or take notice of, very small or trifling matters”). Second, Schlumberger’s a llegation that the failure to return electronic storage devices constitutes a breach resulting in damages has even greater proof problems. In the trial court, Schlumberg er placed much emphasis on Rutherford’s interrogatory answer that she still possesse s one USB drive that she plugged into a Schlumberger computer. (6 CR 2045) As explained fully in Rutherford’s opening brief, Rutherford supplied a forensic image of that drive to Schlumberger’s attorneys. (Cross-Ant. Br. at 33-34) Becau se the drive contains nothing more than Rutherford’s personal photographs, it is not surprising that Schlumberger has abandoned its emphasis on Rutherford’s po ssession of the drive on appeal. (6 CR 2045) To distract from the absence of cl ear and specific evid ence of monetary damages, 5 Schlumberger has argued it is entitle d to specific performance for the

5 Moreover, Rutherford’s interrogatory states that she does not recall whether the USB drive was even issued to her by Sc hlumberger or was one of her personal drives. (6 CR 2045) Schlumberger knows the serial number of th e USB drive that Rutherford possesses, but Schlumberger never supplied any receipt, purchase order, or other evidence to prove that the19 return of electronic storage drives cont aining confidential information. A drive that, without dispute, contains no trade secrets or other confidential information does not advance Schlumberger’s sp ecific-performance argument. Instead, the primary evidence Schlumberg er cites to support its allegation that Rutherford breached the confidentiality agreem ent by removing the drives from its facility are witness statements that Schlumberger could not find the drives where Rutherford testified she left th em. (4 CR 1406–07, 1414, 1431–32) But that evidence is not clear or specific evidence of breach of the confidentiality agreement. The evidence requires the Cour t to pile inferen ce upon unsubstantiated inference: Because Rutherford used the drives at work, the drives must have been purchased by Schlumberger; because Lennon could not find the USB drives on her desk and Nava could not find the extern al hard drive in her desk drawer, Rutherford must have taken the drives; because the drives were missing, the only place Rutherford could have put them is somewhere outside of Schlumberger’s facility. This stacking of threadbare inferen ces is not permitted under Texas law. See City of Keller v. Wilson , 168 S.W.3d 802, 813–14 (Tex. 2005) (stating that competing inferences and stacke d inferences are no evidence). Schlumberger
USB drive ever belonged to Schlumberger, as opposed to being purchased by Rutherford to store her personal photos. In other words, Schlum berger failed to provide any evidence—let alone the required clear and specific evidence—that any USB drive in Rutherford’s possession was Schlumberger-owned “equipment” that, under her confidentiality agreement, had to be returned.20 cannot stack inference upon implausible infe rence and claim to have satisfied any evidentiary standard—let alone the “cl ear and specific evidence” standard—to support its conclusion that, simply b ecause it could not find a few electronic storage drives, Rutherford loaded the de vices with Schlumberger’s trade secrets and took them to Acacia. To reach the conclusion urged by Schlumbe rger, this Court also must ignore numerous other, more probable conclusions to the contrary: Schlumberger lost the materials in the nine months between when Rutherford left the company and when Schlumberger began l ooking for the materials; 6 Schlumberger did not look hard for the materials; someone else took the materi als; or finding a few unlabeled portable drives at a technology conglomerate’s headquarters is akin to finding a needle in a haystack. Texas law prohibits that. See, e.g. , id. ; Litton Indus. Prods., Inc. v. Gammage , 668 S.W.2d 319, 324 (Tex. 1984) (refusing to credit “meager circumstantial evidence giving rise to in ferences which are e qually consistent”); Wright v. Wal-Mart Stores, Inc. , 73 S.W.3d 552, 555 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

6 Robin Nava, who took over Rutherford’s office, stated that “[t]here was no external hard drive in the file cabinets, drawer s, or anywhere else in Ms. Ru therford’s former office.” (4 CR 1414) This begs the question: If the exte rnal storage devices contained confidential information and trade secrets a nd Nava did not find the drive wh en she moved into the office immediately after Rutherford’s departure, why did Schlumberger wait so long to look for the drive?21 Third, Schlumberger gives short shrift to the issue of monetary damages. According to Schlumberger, two items of evidence establish that it is entitled to recover monetary damages fo r the loss of its physical storage drives: (1) Lennon’s statement that she gave Rutherford multiple USB drives and (2) DeLeon’s statement that he gave Rutherford a portable hard drive. 7 (1 CR 73, 76, 200) But Lennon did not even know how many USB drives she gave Rutherford, and Lennon’s deposition testimony does not indicate that she had any way of knowing, for example, through tracking of serial numbers, which drives were purchased by Schlumberger. (1 CR 263-67) The record doe s not contain any receipt or invoice evidencing Schlumberger’s purchase of the drives or their cost. Thus, contrary to Schlumberger’s assertions, there is no ev idence that Schlumberger is entitled to monetary damages for loss of the devi ces in question, much less that those years-old devices retain any monetary va lue that would entitle Schlumberger to replacement costs.

7 DeLeon’s affidavit, submitted in support of Schlumberger’s ex parte request for a TRO, states that he gave Rutherford an external hard drive in 2013, which the company purchased in 2011. (1 CR 73) DeLeon’s statements about the external hard drive were discredited, however, when he testified later that he supplied the external hard drive to Rutherford in 2011—two years earlier than stated in his affidavit. (1 CR 296–98) Under oath at his deposition, DeLeon explained that he performe d a backup of Rutherford’s Personal Storage Table files—which are used in connection wi th Microsoft Outlook to store email messages— to the external hard drive in 2011. (1 CR 296-99) But, contrary to his affidavit, DeLeon did not transfer anything from Rutherford’s company- issued laptop to an external storage device in 2012 or 2013. (1 CR 297) Also contrary to his affidavit, DeLeon conceded having no personal knowledge of whether Rutherford downloaded confidential information onto USB drives even though he stated in his affi davit that she had done so. (1 CR 73, 301)22 Fourth, under the authorities cited by Schlumberger, its alternative request for specific performance for return of the dr ives is viable only if monetary damages would be insufficient to remedy the alleged breach. See, e.g. , Madariaga v. Morris , 639 S.W.2d 709, 711 (T ex. App.—Tyler 1982, writ ref’d n.r.e.); Stafford v. S. Vanity Magazine, Inc. , 231 S.W.3d 530, 536 (Tex . App.—Dallas 2007, pet. denied). Schlumberger has not proven, or even argued, that it could not be made whole for any alleged breaches by an awar d of monetary damages. (Cross-Apes. Br. at 64) But even if Schlumberger had made that showing, specific performance necessarily depends on clear and specific evid ence that the lost drives contain trade
secrets. 8 To identify the information Ruthe rford allegedly sa ved on the drives, Schlumberger relies exclusively on Cowen’ s opinion that Rutherford connected a number of portable storage drives to her co mpany-issued laptop and viewed certain files before leaving Schlumberger. (4 CR 1334 et seq. ) But, again, simply because Rutherford accessed the files does not support a conclusion that she was trying to steal c onfidential information. This evidence would support a number of equally probable conclusions to the contrary—the first being that Rutherford accessed the files at a time when she was still employed by Schlumberger and had a business purpose for doing so. The business purpose is

8 For all the reasons stated in Rutherford’s br ief as appellee, there is no clear and specific evidence that Rutherford actually took any tr ade secrets from Schlumberger on portable storage drives. (Ape. Br. at 53–60)23 obvious—Rutherford downloaded thousands of files to prepare Robin Nava, her successor, to take over. And it is undisp uted that Nava received those files on a drive left by Rutherford. (3 CR 1204; 4 CR 1416, 1592, 1597; 6 CR 2045) It is not surprising that Schlumberger relegates this important fact to a footnote in its brief. (Cross-Apes. Br. at 9 n.6) Rutherford’s tremendous e ffort to set Nava up for success in her new role as Schlumberger’s senior intellectual property attorney is entirely inconsistent with Schlumberger’s attempt to portray Rutherford, who was consistently rated by Schlumberger as an outstanding performer, as a thief. (1 CR 249–62, 290–91) In addition, Cowen’s findings are r easonably explained by Rutherford’s interrogatory statements th at she used another USB drive to retrieve her Outlook contacts and iTunes files from her company-issued lapt op. (6 CR 2045) Rutherford stated that she accessed the Schlumberger laptop to place personal files—financial information, a draft Acacia press release, and draft job descriptions for a potential Acacia Research energy team—on one or more USB drives. (6 CR 2045) Schlumberger’s own Executive IT Suppor t person, DeLeon, acknowledged that employees often back up their personal in formation before leaving the company. (1 CR 313) On this record it is impossible to di scern—absent impermissible leaps in logic—any breach of the confidentiality ag reement that caused harm. An analogy24 makes this point plain. In a pivotal moment in Daniel Defoe’s Robinson Crusoe , the protagonist Crusoe is surprised to discover a single footprint in the sand. Crusoe could reasonably infer that he was not alone on the island. But if Schlumberger had authored the novel, Crus oe would exceed the limits of rational inference to conclude, without more, the footprint belonged to the man Friday. Because Schlumberger did not “establis h[ ] by clear and specific evidence a prima facie case for each essential elemen t of the” breach of contract claim, the trial court erred in failing to dismiss that claim along with Schlumberger’s other claims. See T EX
. C IV
. P RAC

. & R EM
. C ODE § 27.005. That part of the trial court’s order denying Rutherford’s motion to dism iss with respect to the contract claim should be reversed. CONCLUSION For all the reasons stated above and in Rutherford’s other briefs, this Court should affirm in part the judgment of dismissal and the award of fees and sanctions, and should reverse only the porti on of the trial court’s order denying the anti-SLAPP motion to dismiss as to the c ontract claim asserted by Schlumberger and remand this case to the trial court fo r (1) a determination of the amount of additional attorney’s fees a nd sanctions that are owing Rutherford and (2) rendition of judgment in Rutherford’s favor.25 Respectfully submitted, /s/ Thomas C. Wright Thomas C. Wright State Bar No. 22059400 Shelley J. White State Bar No. 24056520 Raffi O. Melkonian State Bar No. 24090587 W RIGHT & C LOSE , L.L.P. One Riverway, Suite 2200 Houston, TX 77056 (713) 572-4321 (713) 572-4320 (Facsimile) wright@wrightclose.com white@wrightclose.com melkonian@wrightclose.com Joseph Y. Ahmad State Bar No. 00941100 Timothy C. Shelby State Bar No. 24037482 Adam Milasincic State Bar No. 24079001 A HMAD , Z AVITSANOS , A NAIPAKOS , A LAVI & M ENSING P.C. 1221 McKinney Street, Suite 3460 Houston, Texas 77010 (713) 655-1101 (713) 655-0062 (Facsimile) joeahmad@azalaw.com tshelby@azalaw.com amilasincic@azalaw.com26 Richard B. Specter (admitted pro hac vice ) California State Bar No. 114090 C ORBETT , S TEELMAN & S PECTER 18200 Von Karman Av enue, Suite 900 Irvine, CA 92612 (949) 553-9266 (949) 553-8454 (Facsimile) rspecter@corbsteel.com Counsel for Charlotte Rutherford

CERTIFICATE OF COMPLIANCE I certify that this Brief as Appellantcomplies with the typeface and wordcount requirements set forth in the Rule s of Appellate Procedur e. This Brief has been prepared, using Microsof t Word, in 14-point Iskoola Pota font for the text and 12-point Iskoola Pota font for any footnotes. This Brief contains 5,048 words, as determined by the word count feature of the word processing program used to prepare this document, excluding those portions of the notice exempted by T EX
. R. A PP
. P. 9.4(i)(1).
/s/ Shelley J. White Shelley J. White27 CERTIFICATE OF SERVICE I certify delivering a true and complete c opy of this instrument to all counsel of record for appellants/c ross-appellees, Schlumberger Limited and Schlumberger Technology Corporation, electronically on March 13, 2015, in compliance with the Texas Appellate Rules of Civil Procedure: Sean D. Jordan Kent C. Sullivan Danica L. Milios Peter C. Hansen S UTHERLAND A SBILL & B RENNAN LLP 600 Congress Avenue, Suite 2000 Austin, Texas 78701 sean.jordan@sutherland.com Craig Smyse r Land Murphy Justin Waggoner S MYSER K APLAN & V ESELKA , LLP 700 Louisiana Street, Suite 2300 Houston, Texas 77002 csmyser@skv.com lmurphy@skv.com jwaggoner@skv.com
/s/ Shelley J. White Shelley J. White