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December 4, 1998
The Honorable Curt Henderson
Judge, 219th District Court
Collin County Courthouse
210 S. McDonald Street
McKinney, TX 75069
Dear Judge Henderson:
I have received a copy of the proposed Order on DSC's Motion to Compel Interrogatory Responses and for Sanctions drafted by DSC's attorney. With respect to that order, and as was mentioned during the argument on the Motion to Compel, it is DSC's position that Evan Brown's interests will be protected because disclosure of the Solution in response to the interrogatory at issue will be subject to the Agreed Confidentiality Order issued in this case. A copy of that Agreed Confidentiality Order is attached hereto. Also attached hereto is a copy of the Temporary Injunction Order issued by this Court on June 30,1997.
As the Court can see by reviewing the Temporary Injunction Order, the restrictions on the disclosure of the Solution in the Temporary Injunction Order are much stricter than those in the Agreed Confidentiality Order. More specifically, the persons to whom Brown was to disclose the Solution pursuant to the Temporary Injunction Order was limited to the members of the "DSC Development Team". This group did not include outside counsel for DSC, expert witnesses and fact witnesses. Instead, it was limited to a very small group of persons. In addition, the use and disclosure of the Solution after having been disclosed to the DSC Development Team was severely restricted by the Temporary Injunction Order. The Agreed Confidentiality Order, however, is much broader. As stated in paragraph 4 of that Order, any confidential material produced pursuant to the Agreed Confidentiality Order may be shown to inside and outside attorneys for any party, employees of a corporate party actively engaged in assisting the parties' attorneys, consulting and testifying experts, and fact witnesses. In addition, the use and further disclosure of any information produced is much broader than the terms of the Temporary Injunction Order.
Evan Brown is extremely concerned that disclosure of the Solution pursuant to the terms of the Court's recent ruling on DSC's Motion to Compel Interrogatory Responses will subject him to great risk. The Court clearly recognized such risk when it imposed severe restrictions on the disclosure of the Solution under the Temporary Injunction Order. I would respectfully request that the Court incorporate the terms of the Temporary Injunction Order in any order it issues granting DSC's Motion to Compel Interrogatory Responses and for Sanctions. Only by incorporating the restrictions and protections in the Temporary Injunction Order can the Court preserve Mr. Brown's interest and protect him from unwarranted disclosure of his Solution. The Agreed Confidentiality Order is simply too broad to sufficiently protect these interests.
In addition, Mr. Brown would note that in the Temporary Injunction Order, the Court stated that Mr. Brown would be paid at the rate of $45 per hour for his disclosure of the Solution. As the Court is aware, Mr. Brown has testified repeatedly in this case that it would take him up to thirty (30) days to fully describe the Solution in writing. Obviously, during this 30 day period, Mr. Brown would be unable to pursue gainful employment. The Court apparently recognized this dilemma and provided economic protection to Mr. Brown by requiring DSC to pay Mr. Brown $45 per hour for his time in making the disclosure. The Agreed Confidentiality Order, however, contains no such provision. We respectfully request that the Court include in its Order the provisions from the Temporary Injunction Order providing that Mr. Brown be paid for his time in making the disclosure. Only by including such provisions can this Court protect Mr. Brown from the economic hardship which would be incurred in fully documenting the disclosure in writing.
I anticipate that DSC may suggest that, should Mr. Brown desire the protections of the Temporary Injunction Order, he can simply comply with that Order in lieu of responding in writing to the interrogatory at issue. In fact, DSC's draft order which it provided the Court yesterday provided as such. The problem, however, is that Mr. Brown was forced to sell his house after being rendered unemployed and unemployable by the actions of DSC in this litigation. He now lives on a farm more than three hours from DSC's headquarters. To require him to drive to and from DSC's headquarters each day for over thirty days would impose an undue burden on Mr. Brown. As such, it is much more practical for disclosure to be made in writing than in person at DSC's headquarters. However, should disclosure be made in writing, Mr. Brown should still receive the protections set forth in the Temporary Injunction Order.
Finally, we respectfully request that the Court enlarge the time in which Mr. Brown is requited to disclose the Solution. He has repeatedly testified that it would take at least 30 days to document the Solution. Mr. Brown, Dick Sayles and myself all have travel plans centered around the upcoming Christmas and New Years holidays. As such, we would respectfully request that the Court extend the time for Mr. Brown to answer Interrogatory No. 7 until January 25, 1999 or a date of the Court's choosing which is beyond the current date of January 4, 1999. DSC has threatened to request that the Court strike Mr. Brown's pleadings if he does not fully and completely respond to the Interrogatory at issue within the designated time. Given the possibly grave consequences of Mr. Brown's failure to completely respond, we believe it is essential that Mr. Brown be given adequate time to fully formulate his response to the Interrogatory so that DSC and, more importantly, this Court, will have no doubt as to his good faith in fully documenting the Solution.
Thank you for taking the time to read this letter. We hope that the Court will take these matters into account when drafting its Order on DSC's Motion to Compel Interrogatory Responses and for Sanctions.
_________________________
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Eric D. Pearson
cc: Eric W. Pinker (w/enc)
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