Allowing full discovery is favored by Texas courts. As the Supreme Court of Texas stated.
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Affording parties full discovery promotes the fair resolution of disputes by the judiciary. This court has vigorously sought to ensure that lawsuits are decided by what the facts reveal, not by what facts are concealed.
State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991). (Citations omitted).
In Interrogatory No. 7, DSC sought for Brown to provide a complete description of the Solution. As demonstrated in DSC's First Motion, this description is critical in order to (1) respond to Brown's contention that the Solution is not within the scope of his Employment Agreement, (Note: 3) (2) evaluate and defend against claims by third parties who assert an ownership interest in the Solution, and (3) evaluate whether the Solution was obtained through other lawful means. While Brown asserted a number of objections to the disclosure sought by DSC, the Court overruled those objections in its December 8, 1998 Order, and required Brown to "fully and completely" disclose the Solution by January 25, 1999. See Exhibit 3.
As demonstrated in the Affidavits of Mike McCarty and Dan McMurray, Brown's Supplemental Response to Interrogatory Number 7 is wholly inadequate. It fails to disclose the Solution. Indeed, the majority of the answer-is wholly non-responsive. The Interrogatory at issue called for Brown to "identify and describe in detail the [Solution]." See Exhibit 3, attachment 5 (DSC's Interrogatory no. 7). Brown's response consists of six and one-half pages (omitting the general objections and signature page). The first three pages are completely non-responsive, addressing the purpose and/or usefulness of the Solution, and "background" facts relating to Brown's education, work during college and prior to DSC, and similar unrelated issues. Similarly, the next one and one-half pages address a handful of basic computer principles which would be relevant to virtually any discussion of how computer software works. These matters are not relevant to a description of the Solution.
The final two pages address Brown's purported realization that he had already "solved" the problem, coupled with what is, at best, an exceedingly high level overview of the Solution. The overview is exceedingly general, and does nothing more than describe the kinds of things that need to be done to convert computer code; it fails to describe fully, completely, or even partially what is actually done to convert the code, how those things are done, in what order they are done.
Perhaps the best evidence showing that Brown's Supplemental Response is completely deficient is to contrast it to his deposition testimony concerning the Solution. In his deposition Brown testified under oath that it would take him 400 pages to write down the Solution. See Brown Depo., p. 79 (Exhibit 6). Brown's two page response, appended to a four page narrative about his background and the usefulness of the Solution, is utterly incomplete, inadequate, and in violation of the court's Order requiring a full and complete description of the Solution.
- Motion for Sanctions
Brown should be sanctioned for failing to comply with the Court's December 8, 1998 Order, and for bad faith and abuse of the judicial process in needlessly and vexatiously increasing the cost and expense of this litigation. Pursuant to Rule 215 of the Texas Rules of Civil Procedure, the Court may sanction a party that fails to comply with proper discovery requests or fails to obey an order to provide discovery. Tex. R. Civ. P. 215(2). Additionally, the Court may sanction a party for abusing the discovery process by resisting discovery. Tex. R. Civ. Pro. 215(3). In addition to Rule 215, the Court has the inherent power to sanction Brown's bad faith refusal to comply with the Order. (Note: 4) Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979). See also, Kutch v. Del Mar College, 831 S.W.2d 506,509-10 (Tex. App.-- Corpus Christi 1992, no writ) (holding that a court has the inherent power to sanction for abuse of the judicial process which may not be covered by rule or statute). As set out above, Brown has violated Rule 215 by (1) failing to comply with the Temporary Injunction Order and (2) failing to comply with the Court's December 8, 1998 Order requiring that Brown "fully and completely" disclose the Solution, and his conduct amounts to an abuse of the discovery process.
Because Brown has already been sanctioned for refusing to disclose the Solution in response to a valid Court order requiring him to do so, DSC requests the Court to strike Brown's Answer and to enter a Default Judgment against Brown. Rule 215 reads, in pertinent part:
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If a party ... fails ... to obey an order to provide or permit discovery ... the court in which the action is pending may, after notice and hearing, make such orders in regard to the failure as are just, and among others the following ... (5) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing with or without prejudice the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party.
Tex.R.Civ.P. 215(2)(b)(5) (emphasis added). Indeed, the Court's December 8, 1998 Order explicitly warned Brown that any further violations of the Court's order would result in such a ruling. See Exhibit 3.
In the alternative, DSC requests that the Court again enter an Order (1) requiring Brown to "fully and completely" describe the Solution within thirty (30) days of the date of entry of a court order, and (2) sanctioning Brown in the amount of $5,000 for violating the Court's Order and for abusing the discovery process. DSC further requests that the Court insert a provision in its order stating that if after 30 days Brown has failed to comply with the Court's Orders, it will strike Brown's pleadings and enter default judgment in favor of DSC. In addition, Brown should be precluded from further pursuing his Motion for Summary Judgment or initiating any discovery in this matter until he fully discloses the Solution to DSC pursuant to the Court's Order and Interrogatory No. 7. (Note: 5)
WHEREFORE, PREMISES CONSIDERED, DSC respectfully requests that the Court enter an order striking Brown's Answer and entering Default Judgment against Brown and in favor of DSC. In the alternative, DSC request that the Court enter a second order (1) compelling Brown to fully answer Interrogatory No. 7 by identifying and describing the Solution in detail, (2) requiring Brown to pay DSC's reasonable discovery expenses, attorneys fees and taxable court costs incurred in compelling the answer to Interrogatory No. 7, (3) stating that, in the event that Brown continues to violate the Court's Order, the Court will strike Brown's pleadings and enter Default Judgment against him, and (4) granting DSC such other and further relief to which it may show itself to be justly entitled.
- Respectfully submitted,
LYNN STODGHILL MELSHEIMER & TILLOTSON, L.L.P.
By: << signature >>
________________________
Eric W. Pinker, P.C.
Texas Bar No. 16016550
John T. Cox III
Texas Bar No. 24003 722
750 North St. Paul Street, Suite 1400
Dallas, Texas 75201
(214) 981-3800 - Telephone
(214) 981-3839 - Telecopy
ATTORNEY FOR PLAINTIFF
DSC COMMUNICATIONS CORPORATION
Note:1 DSC anticipates that Brown will argue that DSC somehow acted improperly by failing to file this motion before now. Such an argument, if made, would be without merit. Pursuant to the Court's December 8, 1998 Order, and the Supplemental Order entered in February 1999, Eric W. Pinker is the.only attorney of record who is permitted to view the Solution or discuss its content with other members of the DSC Disclosure Team. Mr. Pinker was in trial in Mississippi from January 5, 1999 through March 5, 1999, and was responsible for the preparation of voluminous findings of fact and conclusions of law that were filed on March 19, 1999. As such, any alleged "delay" is due solely Brown's insistence that Mr. Pinker be the only attorney of record able to review and discuss the Solution, and to Mr. Pinker's schedule.
Note:2 That Supplemental Response has been filed under seal. In order to guard against inadvertent disclosure of this document, DSC has not attached the Response to this Motion, but DSC hereby refers to and incorporates that Response for all purposes.
Note:3 Brown now seeks to advance this issue through his Motion for Summary Judgment, which has been scheduled for hearing on May 19, 1999. Pursuant to the Court's October 10, 1997 Order, this Motion for Summary Judgment was not to be scheduled for hearing until Brown "provided DSC with a full and complete disclosure of the Solution."
Note:4 A court's inherent power to sanction exists when necessary to deter, alleviate, and counteract bad faith abuse of the judicial process, such as any significant interference with a court's traditional core functions. Kutch, 831 S.W.2d at 510.
Note:5 Because Brown's Motion for Summary Judgment is scheduled for hearing on May 19, 1999 DSC respectfully requests that this Motion be considered on an expedited basis.
CERTIFICATE OF CONFERENCE
I hereby certify that I attempted on May 6,1999 to resolve the subject matter of this motion with counsel for Defendant, but that no agreement could be reached. This motion is, therefore, submitted to the Court for disposition.
- _______________________________
Eric W. Pinker, P.C.
FIAT
The above Motion to Compel Interrogatory Responses is set for hearing in the 219th Judicial District Court on the __ day of __________ 1998, at ______ O'Clock __.m.
- ________________________
Judge Presiding
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served upon counsel for Defendant Evan Brown, as identified below, on this the 7th day of May, 1999.
Via Hand Delivery
Richard A. Sayles, Esq.
Eric D. Pearson, Esq.
Sayles & Lidji, P.C.
1201 Elm Street, Suite 4400
Dallas, Texas 75270
- ________________________________
Eric W. Pinker, P.C.
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