JERRAL W. JONES’S RESPONSE IN OPPOSITION TO 

CYNTHIA DAVIS-SPENCER’S MOTION TO EXCLUDE EVIDENCE – Page 1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TEXARKANA DIVISION 

JERRAL W. JONES, 

Plaintiff, 

vs. 

ALEXANDRA DAVIS and CYNTHIA 

DAVIS f/k/a CYNTHIA DAVIS-SPENCER, 

Defendants.

CIVIL ACTION No. 5:23-cv-00032-RWS 

JERRAL W. JONES’S RESPONSE IN OPPOSITION TO 

CYNTHIA DAVIS-SPENCER’S MOTION TO EXCLUDE EVIDENCE 

 Plaintiff Jerral W. Jones (“Jones”) files this Response in Opposition to the Motion to 

Exclude Evidence (Dkt. 174) (“Motion”) filed by Defendant Cynthia Davis f/k/a Cynthia DavisSpencer (“Spencer”), as follows: 

I. INTRODUCTION 

The judicial system and the adjudicatory process serve a “truth-seeking function.” Castano 

v. Wal-Mart Stores Tex., LLC, No. H-14-1450, 2015 WL 2180573, at *2 (S.D. Tex. May 7, 2015). 

That function was indisputably obstructed by Spencer’s intentional destruction of evidence during 

the pendency of this lawsuit. (See Dkt. 120) Rather than dispute the actual facts of her destruction, 

Spencer tellingly seeks to further impede that function by asking the Court (again) to exclude the 

opinions Lance Watson, the forensic expert who uncovered Defendants’ intentional spoliation.1

(See Dkt. 174) But the entire basis of Spencer’s Motion—that Watson reviewed the substance of 

messages on her phone in violation of an alleged agreement between the parties—is false. Watson 

did not search or review the substance of any improper messages on Spencer’s phone. The Motion 

also contains numerous misrepresentations that further warrant denial. Moreover, even if Watson 

 

1

 Most of Watson’s declaration is not even dependent on Spencer’s phone at all. 

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had reviewed the content of Spencer’s messages, he would have been entitled to do so under 

26(a)(2)(B)(ii) because Spencer’s own forensic expert considered and relied upon those messages 

in formulating his opinion, vitiating any alleged privilege. The Motion should thus be denied. 

II. ARGUMENT 

A. The Motion is moot—Jones’s expert never reviewed the content of messages on 

Spencer’s phone. 

 Spencer’s Motion is premised on her speculation that it “appears” Jones’s forensic expert 

reviewed Spencer’s phone for the substance of messages, in violation of an alleged agreement not 

to do so. (Dkt. 174 at 3) In actuality, however, Watson never searched the substance of Spencer’s 

phone and never received her email data. (Ex. 1, L. Watson Supp. Dec. at ¶¶ 8–11) Watson only 

reviewed that which Spencer agreed he could review: metadata and the absence of messages on 

Spencer’s phone. (Id.) Indeed, the discussion of Spencer’s devices in Watson’s declaration only 

concerns the absence of messages on her phone, and merely compares the screenshots she 

produced against her phone’s metadata of those messages. (See Dkt. 120, Ex. 1 at ¶¶ 32–38, 53–

59). This could have been explained to Spencer’s counsel had she complied with the substantive 

and procedural requirements of Local Rule CV-7(h) and (i). The Court should deny the Motion on 

this ground alone. 

B. Unlike Jones’s counsel, Spencer’s counsel was provided with the entire forensic image 

of Spencer’s phone. 

Spencer claims that she “has not received a full detail of all ‘relevant evidence’ located on 

[Spencer’s] phone” is false. (Dkt. 174 at 2) On June 14, 2024, in an effort to “ensure [Spencer’s 

counsel] and [Spencer] have the same data . . . that Avansic imaged from the devices,” and despite 

the fact that this data was already in Spencer’s possession,2

 Jones’s counsel sent Spencer’s counsel 

 

2

 Indeed, the data was contained in Spencer’s phone. 

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the “raw data” collected from Spencer’s phone. (Ex. 2, 6/14/2024 Buffmire Email) Spencer’s 

counsel was also informed that Jones’s counsel did not have access to this data. (Id.) And contrary 

to Spencer’s assertion that exclusionary terms were not applied to the review of her phone (Dkt. 

174 at 5),3

 Jones’s counsel further informed Spencer’s counsel that “Avansic previously ran the 

exclusion terms you requested.” (Ex. 2, 6/14/2024 Buffmire Email) Two days later, Jones’s 

counsel reiterated to Spencer’s counsel that “the image of [Spencer’s] phone” was already sent to 

her. (Ex. 3, 6/17/2024 Buffmire Email) Spencer’s assertions of informational asymmetry are thus 

entirely backward––Spencer and her counsel had more information than (and were obligated to 

produce it to) Jones’s counsel. 

C. Spencer’s allegations of statutory violations are false and do not warrant excluding 

Watson’s opinions. 

Spencer’s contentions that Watson somehow violated the Computer Fraud and Abuse Act 

(“CFAA”) and that his actions give rise to a “Harmful Access by Computer” (“HAC”) claim are 

meritless. (See Dkt. 174 at 6–7) As explained, Watson did not exceed the scope of his review 

because he never reviewed any improper substantive messages from Spencer’s phone. (L. Watson 

Supp. Dec. at ¶¶ 8–11) The fact that Watson checked to see if messages produced in discovery by 

Lisa Duffee and Shy Anderson existed on Spencer’s phone, which Spencer complains about (see 

Dkt. 174 at 6), was merely done to determine whether those messages had been deleted—the entire 

purpose of Watson’s examination. And, unsurprisingly, Spencer fails to cite a single case where a 

 

3

 As supposed proof that exclusionary terms were not applied, Spencer points to three images attached as Exhibit C to 

Watson’s declaration that purportedly “contained terms that were specifically on the list of words to be excluded.” 

(Dkt. 174 at 5) The first referenced image, however, clearly came from Davis’s phone; and Davis never requested that 

any exclusionary terms be applied to the examination of her device. (See Dkt. 120, Ex. C at IMG_9501.png) The 

second and third referenced images (see id. at 5005_1007 & 5005_1008) were actually produced by Spencer. (Ex. 1, 

L. Watson Supp. Dec. at ¶ 11) Regardless, the idea that relevant messages can be withheld simply because they contain 

terms that Spencer unilaterally selected is contrary to Rule 26 and Local Rule CV-26. See Fed. R. Civ. P. 26 (“Parties 

may obtain discovery regarding any nonprivileged matter that is relevant to any party claim or defense.”); LR CV26(d) (setting forth categories of relevant documents). Further, Spencer cannot explain why, in light of the Court’s 

Protective Order, such terms even need to be excluded. 

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court found a tenable CFAA or HAC claim predicated on a forensic examination conducted to 

uncover or confirm evidence of spoliation. 

D. Spencer waived any right to withhold the data on Spencer’s phone. 

 Even assuming arguendo that Watson reviewed the content of the messages on Spencer’s 

phone, he would have been entitled to do so. Indeed, Rule 26 requires expert witnesses to disclose 

‘the facts or data considered by the witness in forming’” the opinions to be offered. SB IP Holdings, 

LLC v. Vivint, Inc., No. 4:20-CV-00886, 2023 WL 6601415, at *10 (E.D. Tex. Oct. 10, 2023) 

(quoting Fed. R. Civ. P. 26(a)(2)(B)(ii)). The term “facts or data” is to be “interpreted broadly to 

require disclosure of any material considered by the expert, from whatever source, that contains 

factual ingredients.” Fed. R. Civ. P. 26(a)(2)(B) advisory committee’s note to 2010 amendment 

(emphasis added). Given this disclosure obligation, litigants cannot “argue that materials furnished 

to their experts to be used in forming their opinions––whether or not ultimately relied upon by the 

expert––are privileged or otherwise protected from disclosure when such persons are testifying or 

being deposed.” Id. advisory committee’s note to 1993 amendment. Thus, the Fifth Circuit has 

held that even privileged documents must be disclosed if considered by an expert. See Ecuadorian 

Plaintiffs v. Chevron Corp., 619 F.3d 373, 378 n.8 (5th Cir. 2010) (holding that work product 

privilege was waived over documents considered by testifying experts in forming opinions).4

It is indisputable that Spencer’s expert considered all of the data pulled from Spencer’s 

phone in forming his opinions. Indeed, his report specifically identifies “the forensic image that 

Avansic obtained from the Spencer iPhone” as one of the items he “”[r]elied [u]pon and 

 

4 See also Calsep A/S v. Intelligent Petroleum Software Sols., LLC, No. 4:19-CV-1118, 2020 WL 1321521, at *3 (S.D. 

Tex. Mar. 17, 2020) (“privilege is waived when work product is provided to a testifying expert who considers it in 

forming opinions, and the material must be disclosed”); Antero Res. Corp. v. C&R Downhole Drilling Inc., No. 4:16-

CV-668-Y, 2017 WL 11685172, at *3 (N.D. Tex. Feb. 24, 2017) (Rule 26(a)(2)(B)(ii) required plaintiff to produce to 

defendants otherwise privileged materials considered by plaintiff’s expert); Deal v. Louisiana ex rel. Dep’t of Just., 

No. 11-743-JJB, 2013 WL 4546772, at *5–6 (M.D. La. Aug. 28, 2013) (same). 

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[r]eviewed.” (Ex. 4, Excerpts of S. Watson Report) Thus, Spencer had a duty to disclose the data 

to Jones. Accordingly, Watson, on Jones’s behalf, was entitled review the entirety of Spencer’s 

phone, including the contents of her messages, pursuant to Rule 26(a)(2)(B)(ii). 

III. CONCLUSION 

 Plaintiff Jerral W. Jones respectfully requests that the Court deny the Motion and grant 

further relief, in law or in equity, to which Jones is entitled. 

 

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FOLSOM ADR PLLC 

/s/ David Folsom 

David Folsom 

State Bar No. 07210800 

david@folsomadr.com 

6002-B Summerfield Dr. 

Texarkana, TX 75503 

(903) 277-7303 

JACKSON WALKER LLP 

/s/Charles L. Babcock 

Charles L. Babcock 

State Bar No. 01479500 

cbabcock@jw.com 

Nancy W. Hamilton 

State Bar No. 11587925 

nhamilton@jw.com 

1401 McKinney Street 

Suite 1900 

Houston, TX 77010 

(713) 752-4210 

(713) 752-4221 - Fax 

David T. Moran 

State Bar No. 14419400 

dmoran@jw.com 

Edwin Buffmire 

State Bar No. 24078283 

ebuffmire@jw.com 

Cody Martinez 

State Bar No. 24102146 

cmartinez@jw.com 

2323 Ross Avenue 

Suite 600 

Dallas, TX 75201 

(214) 953-6000 

(214) 953-5822 – Fax 

ATTORNEYS FOR JERRAL W. JONES 

CERTIFICATE OF SERVICE

On July 1, 2024, I electronically submitted the foregoing document with the clerk of the 

court of the U.S. District Court, Eastern District of Texas, using the electronic case filing system 

of the court. I hereby certify that I will serve all counsel and/or pro se parties of record 

electronically or by another manner authorized by Federal Rule of Civil Procedure 5(b)(2). 

/s/ Edwin Buffmire 

Edwin Buffmire 

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