No. 01-14-00776-CV __________________________________________________________________ 

IN THE COURT OF APPEALS 

FOR THE FIRST DISTRICT OF TEXAS

__________________________________________________________________ 

Schlumberger Limited and Schlumberger Technology Corporation, 

Appellants/Cross-Appellees, 

V. 

Charlotte Rutherford, 

Appellee/Cross-Appellant.

__________________________________________________________________ 

On Appeal from the 127th Judicial District Court of Harris County, Texas 

Trial Court Cause 2014-13621 

__________________________________________________________________ 

CHARLOTTE RUTHERFORD’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 

AHMAD, ZAVITSANOS, ANAIPAKOS,

ALAVI & MENSING P.C. 

1221 McKinney Street, Suite 3460 

Houston, Texas 77010 

Richard B. Specter (pro hac vice) 

California State Bar No. 114090 

CORBETT, STEELMAN & SPECTER

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 

WRIGHT & CLOSE, 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

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 3/13/2015 5:36:40 PM CHRISTOPHER A. PRINE Clerk
2 

TABLE OF CONTENTS 

Page 

TABLE OF CONTENTS ........................................................................................... 2 

INDEX OF AUTHORITIES ...................................................................................... 3 

PRELIMINARY STATEMENT ............................................................................... 5 

ARGUMENT ............................................................................................................. 6 

I. Schlumberger’s construction of the TCPA is contrary to its 

plain language. ................................................................................................. 6 

A. The TCPA does not limit its protections to speech made 

in a public setting. ................................................................................. 6 

B. This Court has refused to require a nexus to participation 

in government. ....................................................................................... 9 

II. Rutherford’s construction of the 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 

CONCLUSION ........................................................................................................ 24 

CERTIFICATE OF COMPLIANCE ....................................................................... 26 

CERTIFICATE OF SERVICE ................................................................................ 27 
3 

INDEX OF AUTHORITIES 

Page 

Cases

Avila v. Larrea, 394 S.W.3d 646 (Tex. App.—Dallas 2012, pet. 

denied) .................................................................................................................. 12 

Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., 

Inc., 441 S.W.3d 345 (Tex. App.—Houston [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, (Tex. 2005) .......................................... 19 

Combined Law Enforcement Ass’n of Tex. v. Sheffield, No. 03-13-

00105-CV, 2014 WL 411672 (Tex. App.—Austin Jan. 31, 2014, 

pet. filed) (mem. 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 (Tex. 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 pet.) ............................................................ 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) .............................................................. 7 
4 

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. denied) ..................................................... 15 

Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.3d 303 (Tex. 1978) ............................ 14 

Whisenhunt v. Lippincott, 416 S.W.3d 689 (Tex. App.—Texarkana 

2013, pet. filed) ...................................................................................................... 7 

Wright v. Wal-Mart Stores, Inc., 73 S.W.3d 552 (Tex. App.—

Houston [1st Dist.] 2002, no pet.) ........................................................................ 20 

Statutes

TEX. CIV. PRAC. & REM. CODE § 27.001 ............................................... 7, 8, 9, 12, 14 

TEX. CIV. PRAC. & REM. CODE § 27.002 ....................................................... 9, 14, 16 

TEX. CIV. PRAC. & REM. CODE § 27.003 .................................................................. 12 

TEX. CIV. PRAC. & REM. CODE § 27.005 ........................................................... 14, 24 

TEX. CIV. PRAC. & REM. CODE § 27.010 ........................................................... 13, 14 

U.S. CONST. art. I, § 8............................................................................................... 12 

Other Authorities

Antonin Scalia, A Matter of Interpretation: Federal Courts and the 

Law 31 (Amy Gutmann ed., 1997) ........................................................................ 6 
5 

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: 

Charlotte Rutherford presents this reply brief in further 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 claim asserted by Schlumberger Limited and 

Schlumberger Technology Corporation (collectively “Schlumberger”) and remand 

this case to the trial court for (1) a determination of the amount of additional 

attorney’s fees that are owed to Rutherford 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 restraining order because it 

believed Rutherford, a highly rated lawyer whom Schlumberger had employed for 

almost seven years, was using trade secrets against it. Schlumberger filed this 

lawsuit out of a desire to demean Rutherford’s reputation so as to derail the ‘319 

patent-infringement case currently pending in federal court. Because 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 legislative history, dicta, and a concurring 

opinion—essentially, everything but the words actually used in the TCPA. This is 

not surprising because, under the plain meaning of the terms defining the TCPA’s 

scope, Rutherford prevails. See Better Bus. Bureau of Metro. Houston, Inc. v. John 

Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.—Houston [1st Dist.] 2013, 

pet. denied) (stating that court’s primary 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 legislature.”) (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 lamenting that joke is “no longer funny” 

because “[r]eality has overtaken parody”). 

A. The TCPA does not limit its protections to speech 

made in a public setting. 

Contrary to Schlumberger’s suggestion, the TCPA does not limit its 

protections for association and petitioning activities only to communications made 
7 

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 “communication” broadly to include any “statement or document 

in any form or medium, including oral, visual, written, audiovisual, or electronic.” 

TEX. CIV. PRAC. & REM. CODE § 27.001(1). 

The cases Schlumberger cites do not support its attempt to amend the 

definition of a “communication” 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 speech 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 were protected by the right of free speech. 

Id. at 694–95. Because the TCPA defines “free speech” to include only 

communications “made in connection with a matter of public concern,” TEX. CIV.

PRAC. & REM. CODE § 27.001(3), the court inferred that private conversations 

could never involve public concerns. 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) (finding that co-worker’s 

remark to another employee about assassinating President Reagan was 

constitutionally protected despite occurring in private workplace conversation). 

Nevertheless, Whisenhunt is easily distinguished because it did not involve any 

petitioning or association activity. The court considered only whether protected 

speech was involved. Unlike the statutory definition of the “right of free speech,” 

the definitions of the “right to petition” and “right of association” do not include 

any limitation based on “matter[s] of public concern.” See TEX. CIV. PRAC. & REM.

CODE § 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 district 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. And 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 free speech issues, Rutherford respectfully submits the 
9 

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 TEX. CIV. PRAC. & REM. CODE

§ 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 participate in government to the maximum extent 

permitted by law.” TEX. CIV. PRAC. & REM. CODE § 27.002. But Schlumberger is 

incorrect that this general statement of purpose overrides section 27.001’s precise 

definitions of the “right to petition” 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 section 27.001 expands 

the common-law definitions of petitioning and association, this Court already has 

rejected Schlumberger’s argument: 

[Appellee’s] interpretation places 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 completely 
10 

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 Ass’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 TCPA 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 Court observed that the TCPA requires some 

nexus between “the communication used to invoke the TCPA and general 

parameters of First Amendment protection” without differentiating or even citing 

Better Business Bureau. See 449 S.W.3d 210, 216 (Tex. App.—Houston [1st Dist.] 

2014, no pet.). Better Business Bureau cannot be overturned absent a decision of 

the Court sitting en banc or a material change 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 decision from a higher court or this court 

sitting en banc that is on point and contrary 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-workers for retaliatory firing. 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 establishing 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 Court 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 exercised rights protected by the TCPA. Had it 

wanted to, the Legislature could have written 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 Amendment doctrine. But the Legislature did not 

write that statute. Instead it chose to cover any legal action that is based on, relates 
12 

to, or is in response to the party’s exercise of (1) the right of free speech; (2) the 

right to petition; or (3) the right of association. See TEX. CIV. PRAC. & REM. CODE

§ 27.003. All three of these terms have statutory definitions considerably broader 

than what constitutional law may have otherwise covered. See id. § 27.001(2)–(4). 

And it makes sense that the Legislature would not want to hinge the TCPA’s 

meaning or applicability on ever-evolving 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.” TEX. CIV.

PRAC. & REM. CODE § 27.001(7)(E). Dynamic 3D’s lawsuit, and Rutherford’s 

alleged communications, relate to Dynamic 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 involved “public concern” under TCPA). 

Moreover, Dynamic 3D’s patent rights are a public concern as a matter of 

constitutional law, see U.S. CONST. 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 F3d 
13 

831, 863 (Fed. Cir. 2010) (patent 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]his 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 Rutherford’s views of the petitioning and 

association activities protected by the TCPA “abrogate or substantially undermine 

longstanding Texas statutory and common law remedies for tortious and unlawful 

conduct.” (Cross-Apes. Br. at 40) According to Schlumberger, a broad definition 

of the right to petition the courts will bring all malicious prosecution and 

abuse-of-process claims within the scope of the TCPA, which the Legislature 

could not have intended. And a broad definition of the “right of association” will 

allow defendants to escape liability for violations of the Texas’s Free Enterprise 

and Antitrust Act of 1983, the Insurance Code, and anti-discrimination laws—also 

something not intended by the Legislature. These arguments are red herrings. 

 

1

 Schlumberger also contends the commercial-activity exception stated in section 27.010(b) 

removes this case from the protection of the TCPA. Schlumberger made this same argument 

in its brief as appellant, and Rutherford’s previous response explains that the exception does 

not apply because the communications at issue do not arise out of the sale or lease of goods, 

services, or an insurance product. See TEX. CIV. PRAC. & REM. CODE § 27.010(b). Moreover, 

the intended audience for Rutherford’s communications 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 incorporates 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 playing here, the TCPA applies to any “cause 

of action” filed “in response to” protected conduct. TEX. CIV. PRAC. & REM. CODE

§§ 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 the 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 Schlumberger’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 concern 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 exceptions 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 missing from this lawsuit. This lawsuit does 

not involve any claims for violation of the 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 Rutherford’s decision to associate with a new 

company for the purpose of enforcing its patent portfolio and her 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 the ‘319 patent litigation 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 patent] litigation,” and, in interrogatory 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 procedural 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 medical malpractice plaintiffs to comply with 

very specific requirements for expert reports and severe sanctions for failure to comply); 

Burkhart v. Burkhart, 960 S.W.2d 321, 323 (Tex. App.—Houston [1st Dist.] 1997, writ 

denied) (discussing elevated proof requirements in certain child-custody-modification 
16 

being at risk for extinction may still be asserted so long as they are supported by 

clear and specific evidence. See TEX. CIV. PRAC. & REM. CODE § 27.002 

(explaining that statute allows “meritorious lawsuits for demonstrable injury” to 

proceed even if the suit implicates protected rights). If the TCPA did create a 

liability shield for entire classes of torts or statutory violations, perhaps 

Schlumberger’s arguments would make more sense. Because 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 clear and specific evidence of 

each breach-of-contract element. 

The parties have offered competing interpretations 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 breach 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 construction of the TCPA that excludes 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 that would violate the 

Texas Constitution, and at least one Texas court 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, Rutherford incorporates the arguments in her 

brief as appellee by reference. (Ape. Br. at 49–52) 
17 

Schlumberger contends that part of the trial court’s order refusing to dismiss 

the contract claim must be affirmed because Schlumberger presented clear and 

specific evidence that: 

 Rutherford breached the confidentiality agreement by “delet[ing] files, 

including numerous files whose names 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 Schlumberger trade secrets.” (Id.) 

 Schlumberger is entitled to “monetary compensation” because it owned 

the drives Rutherford failed to return. (Id. at 69) 

 Schlumberger is entitled to “specific 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 presented any specific evidence explaining 

whether the alleged “deletions” from Rutherford’s company-issued laptop resulted 

in the actual loss of information. Cowen discerned the names of the items 

“deleted,” but his affidavit does not state that the alleged deletion was anything 

more than sending those items to a recycling bin where they could be recovered. 

(4 CR 1341) Schlumberger’s own Executive 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 the 
18 

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 allegation that the failure to return electronic 

storage devices constitutes a breach resulting in damages has even greater proof 

problems. In the trial court, Schlumberger placed much emphasis on Rutherford’s 

interrogatory answer that she still possesses 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) Because the drive contains nothing more than 

Rutherford’s personal photographs, it is not surprising that Schlumberger has 

abandoned its emphasis on Rutherford’s possession of the drive on appeal. (6 CR 

2045) To distract from the absence of clear and specific evidence of monetary 

damages,5 Schlumberger has argued it is entitled 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 Schlumberger or was one of her personal drives. (6 CR 2045) 

Schlumberger knows the serial number of the USB drive that Rutherford possesses, but 

Schlumberger never supplied any receipt, purchase order, or other evidence to prove that the 
19 

return of electronic storage drives containing confidential information. A drive 

that, without dispute, contains no trade secrets or other confidential information 

does not advance Schlumberger’s specific-performance argument. 

Instead, the primary evidence Schlumberger cites to support its allegation 

that Rutherford breached the confidentiality agreement by removing the drives 

from its facility are witness statements that Schlumberger could not find the drives 

where Rutherford testified she left them. (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 Court to pile inference 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 external 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 inferences 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 stacked 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, Schlumberger 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 inference and claim to have satisfied any 

evidentiary standard—let alone the “clear and specific evidence” standard—to 

support its conclusion that, simply because it could not find a few electronic 

storage drives, Rutherford loaded the devices with Schlumberger’s trade secrets 

and took them to Acacia. 

To reach the conclusion urged by Schlumberger, 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 looking for the materials;6 Schlumberger did not look hard for 

the materials; someone else took the materials; 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 inferences which are equally 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, drawers, or anywhere else in Ms. Rutherford’s former office.” (4 

CR 1414) This begs the question: If the external storage devices contained confidential 

information and trade secrets and Nava did not find the drive when 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 for 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 does 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 evidence that Schlumberger is entitled to 

monetary damages for loss of the devices in question, much less that those 

years-old devices retain any monetary value 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 performed a backup of Rutherford’s Personal Storage 

Table files—which are used in connection with 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 affidavit 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 drives 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 (Tex. 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 award of monetary damages. (Cross-Apes. 

Br. at 64) But even if Schlumberger had made that showing, specific performance 

necessarily depends on clear and specific evidence that the lost drives contain trade 

secrets.8 To identify the information Rutherford allegedly saved on the drives, 

Schlumberger relies exclusively on Cowen’s opinion that Rutherford connected a 

number of portable storage drives to her company-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 confidential 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 brief as appellee, there is no clear and specific 

evidence that Rutherford actually took any trade 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 undisputed 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 effort 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 reasonably explained by Rutherford’s 

interrogatory statements that she used another USB drive to retrieve her Outlook 

contacts and iTunes files from her company-issued laptop. (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 Support person, DeLeon, acknowledged that 

employees often back up their personal information before leaving the company. 

(1 CR 313) 

On this record it is impossible to discern—absent impermissible leaps in 

logic—any breach of the confidentiality agreement that caused harm. An analogy 
24 

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, Crusoe would exceed the limits of rational 

inference to conclude, without more, the footprint belonged to the man Friday. 

Because Schlumberger did not “establish[ ] by clear and specific evidence a 

prima facie case for each essential element of the” breach of contract claim, the 

trial court erred in failing to dismiss that claim along with Schlumberger’s other 

claims. See TEX. CIV. PRAC. & REM. CODE § 27.005. That part of the trial court’s 

order denying Rutherford’s motion to dismiss 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 portion of the trial court’s order denying the 

anti-SLAPP motion to dismiss as to the contract claim asserted by Schlumberger 

and remand this case to the trial court for (1) a determination of the amount of 

additional attorney’s fees and 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 

WRIGHT & CLOSE, 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 

AHMAD, ZAVITSANOS, ANAIPAKOS, ALAVI &

MENSING 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.com 
26 

Richard B. Specter (admitted pro hac vice) 

California State Bar No. 114090 

CORBETT, STEELMAN & SPECTER

18200 Von Karman Avenue, 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 Appellant complies with the typeface and wordcount requirements set forth in the Rules of Appellate Procedure. This Brief has 

been prepared, using Microsoft 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 TEX. R.

APP. P. 9.4(i)(1). 

/s/ Shelley J. White 

Shelley J. White 
27 

CERTIFICATE OF SERVICE 

I certify delivering a true and complete copy of this instrument to all counsel 

of record for appellants/cross-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 

SUTHERLAND ASBILL & BRENNAN LLP 

600 Congress Avenue, Suite 2000 

Austin, Texas 78701 

sean.jordan@sutherland.com 

Craig Smyser

Land Murphy 

Justin Waggoner 

SMYSER KAPLAN & VESELKA, 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