The opinion
ACCEPTED
01-15-00349-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/19/2015 3:52:15 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00349-CV
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS FOR THE 5/19/2015 3:52:15 PM
1•1 JUDICIAL DISTRICT OF HOUSTON CHRISTOPHER A. PRINE
Clerk
IN RE MANHATTAN I VAUGHN, JVP
On Appeal From the
801hJudicial District Court
of Harris County, Texas
Cause No. 2013-76550
RESPONSE TO MANHATTAN I VAUGHN, JVP'S
PETITION FOR WRIT OF MANDAMUS
Respectfully Submitted,
THE GIBSON LAW f"IRM
Jason A. Gibson
State Bar No. 24000606
Casey L. Jordan
State Bar No. 24090599
The Lyric Centre
440 Louisiana, Suite 2400
Houston, Texas 77002
E-mail: efile@jag-lawfirm.com
Ph: (713) 650-1010
Fax: (713) 650-1011
ATTORNEYS FOR PLAINTIFFS
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 52.3(a) of the Texas Rules of Appellate Procedure,
Appellants give the following identity of parties and counsel of record.
HONORABLE LARRY WEIMAN, 801 H Judicial District Court of
Harris County, Respondent
JOSEFINA GARCIA, Individually and as Heir to the Estate of
ANGEL GARCIA and ORBELINDA HERRERA, as Next Friend
of ASHLEY GARCIA and BRYAN GARCIA, Minors, Plaintiffs
and Real Parties in Interest
Represented by: Jason A. Gibson
Casey L. Jordan
THE GIBSON LAW F'IRM
The Lyric Centre
440 Louisiana, Suite 2400
Houston, Texas 77002
Ph: (713) 650-1010
Fax: (713) 650-1011
MANHATTAN I VAUGHN, JVP, DefendantandRelator
Represented by: Mike Miller
JJ. Knauff
Clark C. Butler
The Miller Law Firm
3811 Turtle Creek Blvd., Suite 1950
Dallas, Texas 775219
Ph: (469) 916-2552
Fax: (469) 916-2555
TEXAS CUTTING & CORING LP, TEXAS CUTTING & CORING
GP, INC., LINDAMOOD DEMOLITION, INC., Defendants
Represented by: Mike Miller
JJ. Knauff
Clark C. Butler
The Miller Law Firm
3811 Turtle Creek Blvd., Suite 1950
Dallas, Texas 775219
Ph: (469) 916-2552
Fax: (469) 916-2555
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................ .
TABLE OF CONTENTS ..................................... iii
INDEX OF AUTHORITIES .................................... v
STATEMENT OF THE CASE .................................. 2
ISSUES PRESENTED ....................................... 3
Was Relator's due process violated after the court 1) considered
argument at four separate hearings on Relator's privilege claim;
2) admitted two affidavits Relater offered as evidence in support
of its claim; 3) allowed Relater to file a privilege log seven months
after the deadline to do so and 4) reviewed the documents at
issue in camera for two months before ruling? ................. 3
Did Relater waive its right to assert privilege when it concealed
requested documents for seven months and failed to make a
withholding statement? .................................. 3
Are Gary Lambert's investigation report and related documents,
generated in the ordinary course of business and as required by
Relator's own operating policies and procedures, attorney work-
product or attorney-client communications? ................... 3
FACTUAL BACKGROUND .................................... 4
PROCEDURAL BACKGROUND ................................ 5
SUMMARY OF ARGUMENT & EVENTS ........................ 10
ARGUMENT .............................................. 12
The Court Did Not Violate Relator's Right to Due Process ...... 13
Relater Waived Right to Assert Any Privilege ................ 15
The Documents Are Not Work Product ..................... 20
When Relator's Counsel "Arrived" On-Site Is Irrelevant ......... 24
The Documents Do Not Contain Attorney-Client
Communications ...................................... 26
iii
CONCLUSION ............................................ 28
REQUEST FOR RELIEF ..................................... 29
CERTIFICATION OF FACTS ................................. 30
CERTIFICATE OF SERVICE ................................. 31
INDEX TO APPENDIX ...................................... 32
VERIFICATION ............................................ 33
iv
INDEX OF AUTHORITIES
CASES
In re Anderson,
163 S.W.3d 136 (Tex. App.-San Antonio 2005, no pet.) ....... 15,18,19
In re Avantel, S.A.,
343 F.3d 311 (5th Cir. 2003) ............................... 26, 27
In re E. I. Dupont de Nemours & Co.,
136 S.W.3d 218 (Tex. 2004) ............................... 13, 14
In re Maher,
143 S.W.3d 907 (Tex. App. Fort Worth 2004, no pet.) ....... 18, 20, 27
In re Monsanto Co.,
998 S.W.2 d 917, 924 (Tex.App.-Waco 1999, orig. proceeding) ...... 13
Nat'/ Tank Co. v. Brotherton,
851 S.W.2d 193 (Tex. 1993) .............................. 18,20
STATUTES
TEX. R. C1v. P. 193.3(a) ................................... 15, 19
TEX. R. C1v. P. 193.4(a) ..................................... 13
TEX. R. C1v. P. 199.6 ........................................ 13
TEX. R. EVID. 503 ........................................ 26, 27
v
NO. 01-15-00349-CV
IN THE COURT OF APPEALS FOR THE
1st JUDICIAL DISTRICT OF HOUSTON
IN RE MANHATTAN I VAUGHN, JVP
On Appeal From the
1
80 Judicial District Court
h
of Harris County, Texas
Cause No. 2013-76550
RESPONSE TO MANHATTAN I VAUGHN, JVP'S
PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE FIRST COURT OF APPEALS:
JOSEFINA GARCIA, Individually and as Heir to the Estate of ANGEL
GARCIA; and ORBELINDA HERRERA, as Next Friend of ASHLEY GARCIA
and BRYAN GARCIA, Minors ("Real Parties In Interest" or "Plaintiffs"), file this
Response to Relater, MANHATTAN I VAUGHN, JVP's Petition for Writ of
Mandamus, and would respectfully show the following:
I.
STATEMENT OF THE CASE
Nature of the Case: This is a wrongful death case.
Relator's negligence caused the
caterpillar skid steer Angel Garcia
was operating to flip over the side
of the fifth floor ramp of Kyle Field
Stadium at Texas A&M University.
During the fall Angel Garcia
suffered traumatic life-ending
injuries.
Trial Judge & Court: The Honorable Judge Larry
Weiman, 801h Judicial District,
Harris County, Texas
Trial Court's Disposition: Granted Plaintiffs' Motion to
Compel Manhattan IVaughn, JVP's
Responses to Plaintiffs' Requests
for Production and Ordered
production of documents wrongfully
withheld by Relator.
2
11.
ISSUES PRESENTED
A. Was Relator's due process violated after the court 1)
considered argument at four separate hearings on Relator's
privilege claim; 2) admitted two affidavits Relater offered as
evidence in support of its claim; 3) allowed Relater to file a
privilege log seven months after the deadline to do so and
4) reviewed the documents at issue in camera for two
months before ruling?
B. Did Relater waive its right to assert privilege when it
concealed requested documents for seven months and
failed to make a withholding statement?
C. Are Relator's investigation report and related documents,
generated in the ordinary course of business and as
required by Relator's own operating policies and
procedures, attorney work-product or attorney-client
communications?
3
111.
FACTUAL BACKGROUND
1. On December 3, 2013, 28 year-old Angel Garcia sustained fatal injuries
from a four-story fall while working on the Kyle Field renovation project in
College Station, Texas. Appendix 1, Pl.s' Sec. Am. Pet. Specifically, Garcia's
injuries were caused when a concrete beam cut loose from the structure
caused the Caterpillar Skidsteer he operated to flip over the edge of the fourth
floor ramp. Id.
2. Garcia was an employee of Lindamood Demolition, Inc., an entity
assisting in the removal of concrete debris on the morning of December 3,
2013. Id. The work being performed was a part of the renovation at Kyle Field
to expand seating from 82,600 to 102,500. Id. Relater, Manhattan I Vaughn,
JVP, served as general contractor for the entire project. Id. At approximately
11 :30 a.m., Garcia was operating a Caterpillar Skid Steer Loader on the 4th
floor spiral ramp in the northeast portion of Kyle Field. Id. Garcia was using
the Caterpillar's grapple bucket to catch and support concrete cut loose as a
result of the demolition. Id.
3. Shortly before noon, a portion of concrete larger than the Caterpillar was
able to control, forced the skid steer and Garcia over the edge of the fourth
floor ramp. Id. The skid steer hit a steel beam on the way down, causing it to
4
flip repeatedly. Id. During the fall, Garcia was ejected and landed in a pile of
rubble, back first, suffering massive trauma to his torso and head. Id.
4. An ambulance transported Garcia to the emergency room in Bryan,
Texas. Id. Despite their efforts, 28 year-old Garcia succumbed to his injuries
and was pronounced dead at St. Joseph Hospital. Id. Garcia is survived by
his mother, Josefina Garcia, and his two minor children, Ashley and Bryan.
Id.
IV.
PROCEDURAL BACKGROUND
5. For seven months, Relater concealed the existence of more than twelve
hundred (1200) pages of documents responsive to Pl.s' First Requests for
Production. See Appendix 2, Pl.s' First Requests for Production; see also
Relator's Appendix 6. Plaintiffs served their first requests on March 11, 2014.
See Appendix 2. On June 12, 2014, Plaintiffs' filed their first Motion to Compel
Relator's responses to Plaintiffs' Requests for Production and filed a
supplement to the motion on July 31, 2014. See Appendix 3, Pl.s' Second
Mot. to Compel Def.'s Ans. and Responses to Written Disc.
5
6. Relater filed a response and the Court heard arguments regarding
Plaintiffs' motion. See Appendix 4, Def.'s Responses to Plaintiffs' Sec. Mot.
to Compel Def.'s Ans. and Responses to Written Disc. At no time, however,
did Relater inform Plaintiffs or the Court it was ever withholding documents -
much less 1200 pages worth - responsive to the requests. See id; see also
Relator's Appendix 3.
7. Plaintiffs only learned of the withheld documents when former
Manhattan I Vaughn Senior Safety Manager, Gary Lambert, informed
Plaintiffs of their existence. See Relator's Appendix 5, Pl.s' Request for
Emergency Hearing; see also Relator's Appendix 7, Pl.s' Mot. to Compel
Production of Safety Director's Incident Report; see also Relator's Appendix
16, Pl.s' Am. Third Mot. to Compel Manhattan, Vaughn, JVP's Responses to
Pl.s' Requests for Production at Exhibits A and I. Specifically, Mr. Lambert
informed Plaintiffs he conducted a safety investigation into Garcia's death and
provided Relater a report of his findings as well as those from Thomas Kramer
and other witnesses. See id.
8. Upon learning of Lambert's investigation, Plaintiffs made several
attempts to obtain a copy of the investigation documents from Relater without
court intervention. See Relator's Appendix 5, at Exhibit G. However, Relator
6
refused to cooperate and denied such documents existed. See id; see also
Relator's Appendix 6, Relator's Letter Regarding Non-Existence of Report.
9. Plaintiffs then requested an emergency hearing regarding the report.
At the emergency hearing on November 21, 2014, Plaintiffs learned Relater
not only concealed Mr. Lambert's report, but also an entire box of documents
responsive to Plaintiffs' requests served over eight months ago. See Relator's
Appendix 5.
10. Plaintiffs' filed a Motion to Compel the report and the Court heard
arguments regarding the same on December 5, 2014. See Relator's Appendix
7; see also Relator's Appendix 10, Reporter's Record Dec. 5, 2014. At that
time the Court ruled Relater had insufficient evidence to support its work-
product privilege claim. Id. at 57/4-13.
11. As a result, the Court instructed Relater to produce all documents
responsive to Plaintiffs' requests or submit a privilege log for documents
claimed to be protected by attorney-client privilege for in camera review. Id.
Contrary to the Court's instruction, Relater produced a privilege log claiming
attorney-client and work-product privileges for all documents contained in the
box. See Relator's Appendix 16 at Exhibit F.
7
12. The privilege log, provided on December 8, 2014, revealed Relator
wrongfully concealed 1,250 pages of documents responsive to thirty-seven
of Plaintiffs' discovery requests served more than eight months before. See
id. Another emergency hearing was held on December 10, 2014 in which
Plaintiffs again requested Relator produce all documents responsive to
Plaintiffs' Requests for Production. See Relator's Appendix 11 and 12.
13. On December 22, 2014, Plaintiffs filed their Third Motion to Compel
Manhattan IVaughn, JVP's Responses to Plaintiffs' Requests for Production.
See Relator's Appendix 14, Pl.s' Third Mot. to Compel Manhattan, Vaughn,
JVP's Responses to Pl.s' Requests for Production. On the same date,
Plaintiffs served Defendants notice the motion would be heard before the
Court on January 23, 2015. See Relator's Appendix 15, Notice of Hearing.
Seven days before the hearing, Plaintiffs filed an Amended Third Motion to
Compel. See Relator's Appendix 16.
14. Although 1) the very same issues had been before the court at least
three times prior; 2) Relator had more than one month's notice of the hearing
date and 3) Defendant had seven days to review and respond to the amended
pleading, Defendant objected to the timeliness of the hearing, claiming a lack
of notice. See Relator's Appendix 5, 10 and12.
8
15. At the hearing, the Court heard Relator's objections and ruled:
[Plaintiffs' First Amended Third Motion to Compel] was filed seven
days before the hearing. The hearing was noticed a month ago.
I'm going to overrule your objection. We are going to proceed.
The Court finds that there was sufficient notice as required by
Texas Rules of Civil Procedure and our local rules.
Relator's Appendix 20, Reporters Record Jan. 23, 2015 at 12/11-18.
16. The Court also ordered Relator to produce all of the documents on its
privilege log for in camera review. Id. at 69/10-15. Subsequently, Relator
drastically revised its log, withdrawing privilege claims for more than 1,000
pages of documents. See Relator's Appendix 4, List of Documents Produced
from Box.
17. On April 10, 2015, the trial court ruled the remaining 150+ pages of
documents, except for one sentence, were also not privileged. See Relator's
Appendix 22, Order Granting Pl.s' Mot. to Compel Defendant's Responses To
Plaintiffs' Requests for Production. Relator was ordered to produce the
documents within seven days. Id. Defendants then produced another 100+
pages of documents from Lambert's box and filed this Petition for Writ of
Mandamus. See Relator's Appendix 4.
18. The only documents now at issue are those directly related to Gary
Lambert's investigation. See id. Specifically, the documents are identified on
9
Relator's privilege log as 1) MV_Lambert.000001-.000012 "Typed Summary
of Gary Lambert Investigation Notes" and 2) MV_Lambert.000013-.000114
"Handwritten and Typed Notes made by Gary Lambert between December 3,
2013 - December 5, 2013." See id.
v.
SUMMARY OF ARGUMENT & EVENTS
19. This dispute began when Lambert contacted The Gibson Law Firm and
informed Plaintiffs' counsel he investigated the incident surrounding Angel
Garcia's death. At the time of Garcia's death, Lambert was Manhattan I
Vaughn's Safety Manager and the most senior safety person on the Kyle Field
construction project. See Relator's Appendix 16 at Exhibits A, Band I.
20. Over the course of numerous telephone calls, e-mails and text
messages, Lambert stated: 1) he was not represented by defense counsel;
2) he generated a lengthy report documenting his investigation; and 3) he left
his report, notes and witness statements in a box labeled "Lindamood
Incident" on his desk at the job site when he left his employment with MV. See
id.
21. Plaintiffs requested all investigative reports related to the incident early
on in the case, over a year ago. See Appendix 2. Although Relator's counsel
produced other incident reports and witness statements for other Defendants
10
in the case and other incidents on site, Relator's report for Garcia's death was
never disclosed or produced. See Relator's Appendix 16; see also Relator's
Appendix 4. Lambert conducted the investigation because he was required
to do so by MV's policies and procedures, which existed prior to the incident.
See Relator's Appendix 6, Aft. of Thomas Kramer at 3; see also Relator's
Appendix 16 at Exhibit J .000653-.000660.
22. Armed with the knowledge obtained from Lambert, Plaintiffs notified
Relator's counsel ("Miller") of the report. See Relator's Appendix 5, at Exhibit
G. At first, Miller indicated "we know nothing about a report," taking the
position he did not have a clue about a report but would "look into it."
23. After Plaintiffs' brought the matter to the attention of the Court, Miller
changed his tune, acknowledging: 1) Lambert did conduct an investigation
into the events surrounding Garcia's death and 2) he left an entire box of
documents related to that investigation in Relator's possession. See Relator's
Appendix 6.
24. After four hearings on the issue, several months of in camera review
and more than a year after they were requested, the Court ordered Relator to
produce Lambert's investigation documents and others contained in the box.
See Relator's Appendix 22.
11
VI.
ARGUMENT
25. The Court must deny Relator's Petition for Writ of Mandamus and
uphold the trial court's Order Granting Plaintiffs' Motion to Compel Relator's
Responses to Plaintiffs' Requests for Production because:
• Relator had proper notice of Plaintiffs' Motion to Compel
heard on January 23, 2015 and the three hearings
addressing the same issue that occurred prior to;
• Gary Lambert's incident report and related documents are
responsive to Plaintiffs' First Requests for Production;
• Relator wrongfully concealed the documents for seven
months;
• Relator waived the right to assert privilege by failing to
disclose it was withholding the documents;
• The report is not protected by either work product or
attorney-client privilege because the primary motivating
purpose was not litigation;
• The investigation was not conducted at the request of
counsel; and
• Gary Lambert generated the investigation report and related
documents in the ordinary course of business as required
by Relator's own operating policies and procedures.
12
A. THE COURT DID NOT VIOLATE RELATOR'S RIGHT TO DUE PROCESS
26. The Court did not violate Relator's right to due process because 1)
Relater not only had a month's notice of the hearing on Plaintiffs' Amended
Third Motion to Compel; but also 2) the same matter was properly noticed and
before the court several times before.
27. In the five months before the court signed the order at issue, the court
heard argument regarding Relaters privilege claim four separate times. See
Relator's Appendix 5, 7, 11 and 20. Therefore, Relater had four separate
opportunities to provide argument and evidence to support its claim.
28. Once a hearing is set, the party resisting discovery must produce
evidence necessary to support the claim for privilege. See TEX. R. C1v. P.
193.4(a), 199.6; see also In re E.I. Dupont de Nemours & Co., 136 S.W.3d
218, 227 (Tex.2004). Such evidence may be in the form of live testimony or
an affidavit. See id. Affidavits must be served at least seven days before the
hearing. See TEX. R. C1v. P. 193.4(a), 199.6; see also In re Monsanto Co. 998
S.W.2d 917, 924 (Tex.App.- Waco 1999, orig. proceeding). However, when
a party is resisting discovery on the grounds of privilege an inspection of the
documents themselves may be the only adequate evidence to evaluate the
claim. See In re E.I. Dupont de Nemours & Co. at 223.
13
29. Over the course of the multiple hearings on this matter, Relater offered
two different affidavits in support of its privilege claim. See Relator's Appendix
13, Order Admitting Tom Kramer Affidavit; see also Relator's Appendix 20 at
62/15-17. Upon review of the affidavits and argument by counsel, the Court
determined an in camera inspection of the documents was necessary. On two
separate occasions, the court ordered Relater to provide Lambert's report and
related documents for in camera inspection. See Relator's Appendix 12 at
57/4-13; see also Relator's Appendix 20 at 69/10-15.
30. It was only after reviewing the documents themselves, the court
determined Lambert's report and related documents were not attorney work
product and did not contain attorney client communications. See Relator's
Appendix 22. Therefore, the Court's order requiring Relater to produce the
documents was not an abuse of discretion and did not violate Relator's right
to due process. See In re E. /. Dupont de Nemours & Co. at 223 (Holding once
a party puts on evidence in support of its claim for privilege and tenders the
documents to the court, the court must conduct an in camera review before
deciding whether to compel production.).
14
8. RELATOR WAIVED RIGHT TO ASSERT ANY PRIVILEGE
31. Although the court allowed Relator to put on evidence in support of its
claim, Relator actually waived its right to even assert a privilege claim by
failing to notify Plaintiffs it was withholding requested documents.
32. In order to lawfully withhold a requested document, a party must:
a. Assert a privilege; and
b. Provide notice a requested document has been withheld.
TEX. R. C1v. P. 193.3(a) (emphasis added).
The privilege must be asserted and a withholding statement must be made
prior to the deadline to respond to discovery. See TEX. R. C1v. P.
193.3(a), see also In re Anderson, 163 S.W.3d 136, 142 (Tex. App.-San
Antonio 2005, no pet.).
33. Relator's responses to Plaintiffs' Requests for Production were due April
30, 2014. See Appendix 2. Lambert's report and other investigation
documents are responsive to several of those requests, including:
Request No. 8. All documents related to inspections done
on the Kyle Field renovation project,
including but not limited to the area where
Angel Garcia was working and killed.
15
Request No. 11 All documents identifying safety issues or
concerns as it pertains to the Kyle Field
renovation, including but not limited to the
demolition process and the work being
performed by Angel Garcia and his
employer.
Request No. 12 All documents mentioning actions taken
by defendants to correct any safety
issues that were identified, as it pertains
to the Kyle Field renovation project.
Request No. 22 All documentation and correspondence
discussing engineering surveys
performed by any party or entity, related
to the demolition of structural concrete for
the Kyle Field renovation project,
pursuant to OSHA 29 CFR 1926.850(a).
Request No. 26 All documents reflecting observations by
any party or person regarding the nature
of spalling (or failure) of existing concrete
members of the northeast, spiral
pedestrian ramp during demolition
activities prior to the time of the subject
incident.
Request No. 34 All documents reflecting statements by
employees of Manhattan I Vaughn or any
other party on the Kyle Field renovation
project site describing the incident in
question.
16
Request No. 35 All documents reflecting statements by
employees of Manhattan I Vaughn or any
other party on the Kyle Field renovation
project site describing the events leading
up to the subject incident, or the incident
itself.
Request No. 38 All reports of accidents, on the job injuries
or accident statistics related to the Kyle
Field renovation project.
Request No. 40 All reports of the incident made by any
party or person.
Request No. 42 All job-site safety inspection reports
(dated from the start of construction of the
Kyle Field renovation project
through12/31/2013).
Request No. 46 All reports generated as a result of the
subject incident.
Request No. 48 All documents related to any investigation
conducted as a result of the incident in
question.
34. On April 30, 2014, Relater served its objections and responses to
Plaintiffs' requests. See Relator's Appendix 3. Relater never asserted any
privilege in response to Request No.'s 11, 12, 22, 35, 38, 42 and never
notified Plaintiffs it was withholding documents. See id.
17
35. A failure to properly comply with Texas Rules of Civil Procedure for
asserting a privilege waives the right to that privilege. See In re Anderson, 163
S.W.3d at 142; see also In re Maher, 143 S.W.3d 907, 914 (Tex. App. Fort
Worth 2004, no pet.) citing to Nat'/ Tank Co. v. Brotherton, 851 S.W.2d 193,
204 (Tex. 1993)). In In re Anderson, the Plaintiff learned a responsive
document had been withheld during a deposition taken after the deadline to
produce the document. See In re Anderson, 163 S.W.3d at 142. Prior to the
deposition, the Defendant failed to assert privilege or notify the Plaintiff it was
withholding the document. See id. Upon learning of the document's existence,
the Plaintiff filed a motion to compel production. See id. The trial court denied
the Plaintiff's motion and the Plaintiff petitioned for writ of mandamus. See id.
36. Upon review, the Court of Appeals reversed the trial court and held:
Here, the [Defendant] did not comply with rule 193(a). When it
was served with [Plaintiff's] requests for production, it did not
state in its response or in a separate document that (1) the
memorandum was being withheld, (2) the request to which the
memorandum related, or (3) the privilege or privileges it was
asserting with regard to the memorandum. See Tex.R. Civ. P.
193.3(a). Only after [Plaintiff] discovered the existence of the
memorandum through his deposition of Gonzales and demanded
[Defendant] produce the document did [Defendant] claim that the
memorandum was protected by the attorney-client privilege. The
City did not assert its privilege in accordance with rule 193.3(a).
18
Because the City failed to assert its privilege in accordance
with rule 193.3(a), the trial court erred in denying [Plaintiff's]
motion to compel production of the memorandum.
Accordingly, we conditionally grant [Plaintiff's] petition for writ of
mandamus and direct respondent (1) to withdraw her order
denying [Plaintiff's] motion to compel and (2) to enter an order
compelling production of the memorandum.
See In re Anderson, 163 S.W.3d 136, 142 (Tex. App.-San Antonio 2005, no
pet.).
37. Similar to In re Anderson, Relator failed to assert privilege in
accordance with Rule 193.3(a) and only now seeks protection after Plaintiffs
discovered the documents existed, more than seven months after the time to
assert privilege passed. See id. As a result, Relator wrongfully withheld the
documents named in its untimely privilege log and therefore waived its right
to assert any privilege. Following In re Anderson, the Court properly granted
Plaintiffs' motion and did not abuse discretion by ordering Relator to produce
the requested documents. See id.
19
C. THE DOCUMENTS ARE NOT WORK -PRODUCT
38. Relater waived its right to assert privilege by failing to comply with Rule
193.3(a). However, even if Relater followed the procedure to claim a privilege,
the Court still did not err in granting Plaintiffs' Motion to Compel because the
documents are not protected by work-product privilege.
39. Work-product privilege does not apply to the type of documents listed
in Relator's log, including Gary Lambert's Report. Specifically, work-product
doctrine "is not an umbrella for protecting materials gathered in the ordinary
course of business." See In re Maher, 143 S.W.3d 907, 912 (Tex. App. Fort
Worth 2004, no pet.) relying on Nat'/ Tank Co. v. Brotherlon, 851 S.W.2d 193,
204 (Tex. 1993)) (emphasis added).
40. A document is created in the ordinary course of business unless
preparation for litigation is "the primary motivating purpose underlying the
creation of the document. Id. A document is not prepared 'in anticipation of
litigation' if it is in fact prepared for some other purpose." Id.
41. Lambert's employment as Manhattan I Vaughn Safety Manager and his
responsibility to report onsite injuries pre-date the incident made basis of this
lawsuit. Manhttan I Vaughn, Construction Manager, Thomas Kramer's
affidavit, the very evidence relied on by Relater, clearly states conducting an
20
investigation and recording the information gathered was standard operating
procedure for Manhattan I Vaughn:
As the Construction Manager for Manhattan IVaughn, it is my job
to maintain oversight of the day-to-day activities of the Project
including ... inspecting and overseeing the accumulation of
information following any **emphasis added** accident at the
Project. On the date of the accident, Gary Lambert's job
responsibilities was (sic) to gather information and keep me
informed of facts and observations gathered following an accident
at the project and to maintain any paperwork associated with
those responsibilities.
Relator's Appendix 6, Aff. of Thomas Kamer at 2.
42. Moreover, in Manhattan I Vaughn's Kyle Field Stadium Project Safety
Program it plainly states it is the responsibility of the Project Safety Manager
to "investigate all near misses, accidents, and property damage incidents,
perform an investigation and submit a written report to the Project Manager
and Project Superintendent." Relator's Appendix 16 at Exhibit J:
Manhattan.000653.
43. The Project Safety Plan includes specific instructions for the types of
information to be included in the written incident report, including the
following:
I. Names and addresses of victims and
witnesses;
21
11. Description of events leading up to the
accidenU incident;
iii. Factors that may have contributed to the
accidenUincident (root cause analysis); and
iv. Action taken to prevent this accidenUincident in
the future.
Id. at Manhattan.000653- Manhattan.000660.
44. The primary motivating purpose of Lambert's investigation into
Angel Garcia's death and subsequent report was to fulfill his obligations
as Safety Manager as required by Relator's site safety plan. See id. As
evidenced by the Kramer's affidavit and the privilege log itself, Lambert and
Relater routinely conducted such investigations for other onsite injuries and
safety incidents. See Relator's Appendix 6, Aff. of Thomas Kamer at 2; see
a/so Relator's Appendix 4.
45. In the privilege log, Relater attempts to re-characterize the investigation
and report regarding Angel Garcia as "notes" or a "summary of notes" in an
attempt to veil its blatant concealment of requested documents. Relator's
Appendix 4. However, Relator's own privilege log evidences a "report" was
generated for all other instances of onsite injury. Id.
22
46. Mr. Lambert's investigation documents appear in Relator's privilege log
as follows:
Relator's characterization of the post-incident investigation into
Angel Garcia's death, referred to as "typed summary of notes":
Ila f t
1 ()orulll(·,\f ~anH.:
On~in.11 llote Numbrl' - -
MV LAMBERT.000001- 12/3/2013 Typed summary of Gary
MV:LAMBERT.000012 Lambert notes
MV LAMBERT.000013- 1214/2013 Notes made by Gary Lambert
MV=LAMBERT.000114 between December 3, 2013
through December 5. 2013
Relator's characterization of the post-incident investigation into all
other onsite injuries referred to as "reports":
MV_LAMBERT.000116· 911212013 MfV Near Miss I Accident
MV_LAMBERT.000132 Investigation Report
regarding Britt-Rice
emolovees
MV_LAMBERT.000133· 9/30/2013 MIV Near Miss Repon Re:
MV _LAMBERT.000139 Lindamood track ho• operator
Charles Ste wan hit a buried
8" utility water line while
eXCQVBtin".
MV_LAMBERT.000140- l0/7/2013 MJV Accident Investigation
MV_LAMBERT.000184 Report; Fran"i~co Dominguez
MV LAMBERT.000185- 10/15/2013 Injury Investigation Report;
MV:::LAMBERT.000198 Ernesto Gonzalez
MV LAMBERT.000199- 1012212013 MIV Accident Investiaation
MV).AMBERT.000216 Report; DeIT babel
MV_LAMBERT.000217- 11/8/2013 Employee Injury Report; Jose
MV_LAMBERT.000239 Jimenez
MV_LAMBERT.000240· 11111/2013 Employee Jajury Report; Jose
MV_LAMBBRT.000261 Urbano
MV_LAMBERT.000263· 11/13/2013 Incident lnves1iga1ion Report;
MV_LAMBERT.000271 Derr Stell Erection
Id.
23
47. Relator has gone to great lengths to obstruct the discovery process and
avoid production of the documents listed in its log. However, without any proof
the documents were created for the sole purpose of litigation, Relator's claim
for privilege must be denied.
D. WHEN RELATOR'S COUNSEL "ARRIVED" ON-SITE IS IRRELEVANT
48. The date Relator's counsel arrived at the Kyle Field Renovation Project
has no bearing on whether documents are privileged or not. Relator's
counsel, particularly Michael Miller, is under the misconception that as soon
as he arrived on-site, every investigation and document generated somehow
becomes privileged for no other reason.
49. Miller has repeatedly stated he was not aware of any investigative report
until after he was notified by Plaintiffs' counsel, not his own client. See
Relator's Appendix 6. Moreover, it is clear multiple routine investigations were
already underway by the time Miller showed up:
Q: After this happened, did you conduct an investigation -- did
Lindamood to determine a root cause analysis as to what
happened and why he went over?
A: I mean, we -
MR. MILLER: You can -- that's a yes or a no, because you're
going to get into attorney-client communications.
24
THE WITNESS: Yes.
Q: And what was the -- what was the determination of what
caused it, based on Lindamood?
A: I'm not sure. The study that our guy did, I think, went to --
1don't know if it even ever got finished, but -
MR. MILLER: Let's do this. Because timing of it could be an
issue, you can talk about what investigation vou did up until
the time I arrived and was representing vou.
THE WITNESS: Yeah.
MR. MILLER: That's fair game.
THE WITNESS: Okay.
MR. MILLER: You can tell him. But after that -
MR. GIBSON: Because you -- well, just because you started
representing them, that doesn't make their investigation
privileged.
MR. MILLER: Well -
THE WITNESS: I investigated it myself...
Relator's Appendix 16, Exhibit K: Dep. Jake Lindamood at pp. 65:23- 66:24.
50. Although Miller again misstates the legal effect of his representation on
the ongoing investigation, it is clear the investigation began prior to Miller's
25
representation. Miller's arrival onsite had no influence on the Relator's choice
to investigate the work-site fatality.
51. Furthermore, Relater provided no evidence whatsoever Lambert
conducted his investigation at the request of counsel. Notably Lambert and
Kramer's affidavits only state Relator's counsel "authorized" the ongoing
investigation. See Relator's Appendix 6; see also Relator's Appendix 16 at
Exhibit 5. Therefore, any reports, notes or statements generated during
Lambert's investigation cannot be attorney work-product.
E. THE DOCUMENTS Do NOT CONTAIN ATIORNEY-CLIENT COMMUNICATIONS
52. Relater waived its right to assert attorney-client privilege by failing to
comply with TEX. R. C1v. P. 193.3(a). However, even if Relater followed the
procedure to timely claim a privilege, the documents are still not protected
because they are not confidential communications intended to be disclosed
solely to legal counsel when created. See TEX. R. Ev10. 503.
53. The "subject matter test" is applied when evaluating whether
communications between an employee of a client and the client's attorney are
privileged. See In re Avantel, S.A., 343 F.3d 311, 316 (5th Cir. 2003). Under
the subject matter test, communications between an employee and the
client's attorney are only privileged when:
26
1. There is a communication between a
representative of a client and the client's
attorney,
2. The communication is made at the direction of
his superiors, and
3. The subject matter of the communication is
upon which the attorney's advice is sought by
the corporation.
Id. (emphasis added).
54. The incident report and related documents do not contain
"communications" between a company representative and an attorney. See
Relator's Appendix 4. Plaintiffs do not seek to compel the production of any
confidential emails, letters or exchanges between Relator's legal counsel and
any other person or entity. See Relator's Appendix 16.
55. Furthermore, a document is not attorney-client communication simply
because it is contained in an attorney's file. See In re Maher, 143 S.W.3d at
912. To be considered a confidential communication, the document must
have been intended to be disclosed solely to legal counsel when it was
created. See Avantel, 343 F.3d at 316, see also TEX. R. Ev10.§ 503.
56. Lambert's investigation documents were not commissioned by
Relator's attorney, nor were they addressed to counsel or intended to be
27
used solely for legal representation when created. In fact, Relator's own
safety plan states the incident report is to be prepared for review by the
"Project Manager" and "Project Superintendent." Relator's Appendix 16 at
Exhibit J: Manhattan.000653 -.000660.
57. Furthermore, the log itself supports a finding site incident reports were
never intended to be confidential. Relater did not even allege attorney-client
privilege for other investigations performed onsite and eventually produced
the related reports on its own accord. See Relator's Appendix 4. However,
Relater expects the Court to believe, unlike every other investigation, the
documents referencing Angel Garcia's death were somehow intended to be
confidential communications with an attorney. See id.
VII.
CONCLUSION
58. Any right to assert privilege, was waived when Relater failed to state a
privilege or make withholding statements prior to the date its discovery
responses were due, more than one year ago. Lambert's investigation, report
and other documents related to the incident were initiated and directed by
company policies and procedures. The documents do not contain the advice
of legal counsel nor were they addressed to, written or directed by legal
28
counsel. Therefore the documents are not privileged and must be produced
without further delay.
VIII.
REQUEST FOR RELIEF
59. Plaintiffs ask the Court to DENY Manhattan I Vaughn, JVP's Petition for
Writ of Mandamus and UPHOLD Respondents Order Granting Plaintiffs'
Motion to Compel and for such other relief, both in law and equity, to which
Plaintiffs may show themselves justly entitled.
29
Respectfully Submitted,
THE GIBSON LAW FIRM
o son
State Bar No. 24000606
Casey L. Jordan
State Bar No. 24090599
The Lyric Centre
440 Louisiana, Suite 2400
Hou~on , Texas77002
Ph: (713) 650-1010
Fax: (713) 650-1011
ATTORNEYS FOR PLAINTIFFS
CERTIFICATION OF FACTS
I have reviewed the above Response to Manhattan I Vaughn , JVP's
Petition for Writ of Mandamus. I certify every factual statement is supported
by competent evidence included in the record .
30
CERTIFICATE OF SERVICE
I certify a true and correct copy of this document has been served on all
counsel of record via first class regular mail or fax on May 19, 2015.
31
INDEX TO APPENDIX
True and correct copy of the following documents are attached as
required by Texas Rules of Appellate Procedure 52.30) and 52.4(e).
Tab 1 Plaintiffs' Second Amended Petition;
Tab2 Plaintiffs' First Requests for Production to Defendant
Manhattan I Vaughn, JVP;
Tab 3 Plaintiffs' Second Motion to Compel Defendants'
Answers & Responses to Written Discovery; and
Tab4 Defendants' Response to Plaintiffs' Second Motion to
Compel Defendants' Answers & Responses to
Written Discovery.
32
VERIFICATION
THE STATE OF TEXAS §
§
COUNTY OF HARRIS §
BEFORE ME, the undersigned Notary Public, on this day personally
appeared Jason A. Gibson , who, after first being duly sworn by me, stated as
follows:
"My name is Jason A. Gibson, I am over 21 years of age, of sound
mind and am fully competent to make this Verification . The facts stated below
are based on my personal knowledge and are true and correct.
I am an attorney of record for Real Parties in Interest, Josefina Garcia,
Individually and as Heir to the Estate of Angel Garcia; and Orbelinda Herrera,
as Next Friend of Ashley Garcia and Bryan Garcia, Minors. I have reviewed
the pleadings, discovery, correspondence and all other documents attached
and referenced in this matter. I have personal knowledge of the pleadings and
discovery filed in the underlying lawsuit. I have read Real Parties in Interest's
Response to Relator's Petition for Writ of Mandamus, all documents attached
as the Record and included in the Appendix are true and c es of the
original documents. "
SUBSCRIBED AND SWORN TO BEFO
''""''~(!;;,,,
.,,,~',.~: JANA LYNN THOMPSON
f;":~!I~"\ Notary Public, Sta te of Texas
:.,1Xf..:N My Commission Expires
"~~:f,:i~:~~~,~ August 28, 2018 Notary ublic in and for
The State of Texas
33
TAB 1
Cause No. 2013-76550
JOSEFINA GARCIA, Individually § IN THE DISTRICT COURT OF
and as Heir to the Estate of ANGEL §
GARCIA (Deceased); and ORBELINDA §
HERRERA, as Next Friend of ASHLEY §
GARCIA and BRYAN GARCIA (Minors) §
§
v. § HARRIS COUNTY, TEXAS
§
MANHATTAN I VAUGHN, JVP, §
TEXAS CUTTING & CORING, LP, §
TEXAS CUTTING & CORING, GP, INC. §
and LINDAMOOD DEMOLITION, INC. § 80 111 JUDICIAL DISTRICT
PLAINTIFFS' SECOND AMENDED PETITION
TO THE HONORABLE LARRY WEIMAN:
Plaintiffs JOSEFINA GARCIA, Individually and as Heir to the Estate of ANGEL
GARCIA (Deceased), and QRBELINDA HERRERA, as Next Friend of ASHLEY GARCIA
and BRYAN GARCIA (Minors), file this Second Amended Petition complaining of
Defendants MANHATTAN I VAUGHN, JVP, TEXAS CUTTING & CORING, LP and
LINDAMOOD DEMOLITION, INC. and would respectfully show the following:
I.
DISCOVERY LEVEL
1. Plaintiffs request discovery be conducted under Level 3 in accordance with Rule
190.4 of the Texas Rules of Civil Procedure. This case is not subjectto Texas Rule of Civil
Procedure 169 because the damages for which Plaintiff seek exceed $100,000.00.
II.
REQUEST FOR DISCLOSURE
2. Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Plaintiffs request
Defendants disclose, within fifty (50) days of service of this request, the information and
material described in Rule 194.2 of the Texas Rules of Civil Procedure. Plaintiffs
specifically request the responding parties to produce responsive documents at the
undersigned law offices within fifty (50) days of service of this request.
Ill.
WRONGFUL DEATH AND SURVIVAL CLAIMS
3. Plaintiffs are entitled to bring this action under the Texas Wrongful Death Act. TEX.
C1v. PRAC. & REM. CODE ANN. §71.002. Specifically, Plaintiff Josefina Garcia is the mother
and living parent of the deceased, Angel Garcia. Plaintiffs Ashley Garcia and Bryan Garcia
are the biological children of the deceased, Angel Garcia.
4. In addition, Plaintiffs bring this action on behalf of the Estate of Angel Garcia,
deceased, under the Texas Survival Statute as statutory heirs to the estate. TEX. CIV.
PRAc. &REM. CODE ANN. §71.021. Specifically, Josefina Garcia, Ashley Garcia and Bryan
Garcia are the only living heirs of Angel Garcia, deceased. A legal representative has not
been appointed and an administration of the estate is not pending and is not necessary.
Moreover, a personal representative cannot or will not bring suit on behalf of the estate.
5. Plaintiffs are heirs entitled to the decedent's estate under the statutes of descent
and distribution. TEX. PROB. CODE §38, §45. The estate of the deceased does not have
two or more debts. All of the estate's debts have been paid. Furthermore, the heirs and
family of the deceased have agreed on distribution of funds and assets received by the
estate.
2
IV.
PARTIES
6. Plaintiff, Josefina Garcia, is a resident of Irving, Dallas County, Texas.
7. Plaintiffs Orbelinda Herrera, Ashley Garcia and Bryan Garcia are all residents of
Bonita Springs, Lee County, Florida.
8. Defendant Manhattan I Vaughn is a Domestic Joint Venture Partnership between
Defendants Vaughn Construction and Manhattan Construction organized and existing
under the laws of the state of Texas. As a joint venture, Defendant may be served process
by serving general partner: J. Thomas Vaughn, 10355 Westpark Drive, Houston, Texas
77042.
9. Defendant Texas Cutting &Coring, LP is a partnership organized and existing under
the laws of the State of Texas with a principal place of business in Round Rock, Texas.
Defendant may be served process by serving its attorney of record: Michael A. Miller, 3811
Turtle Creek Blvd., Suite 1950, Dallas, Texas 75219.
10. Defendant Lindamood Demolition, Inc., is a corporation organized and existing
under the laws of the State of Texas with its principal places of business in Irving, Texas.
Defendant may be served process by serving its registered agent in Texas: Kayla
Lindamood, 2002 S. Nursery, Irving, Texas 75060.
v.
JURISDICTION
11. The court has jurisdiction over Defendants because they have either done business
in Texas, committed a tort in Texas, and/or have had continuous contacts with Texas. In
addition, the damages forwhich Plaintiff brings suit exceeds the minimal jurisdictional limits
of the Court.
3
VI.
VENUE
12. Venue is proper in Harris County, Texas because Defendant J.T. Vaughn
Construction, LLC.'s principal place of business is located in Houston, Harris County,
Texas. CIV. PRAC. REM. CODE§ 15.002(a)(3).
VII.
FACTS
13. On December 3, 2013, 28 year-old Angel Garcia sustained fatal injuries from a four-
story fall while working at Kyle Field in College Station, Texas. Specifically, Garcia's
injuries were caused when a section of concrete dislodged, catapulting Garcia off the edge .
of a fourth floor ramp where he was working.
14. Garcia was an employee of Lindamood Demolition, an entity assisting in the
removal of concrete debris on the morning of December 3, 2013. The work was being done
as a part of the renovation at Kyle Field, to expand seating from 82,600 to 102,500. At
approximately 11 :30am, Garcia was operating a Caterpillar Skid Steer Lpader on the 4•h
floor spiral ramp in the northeast portion of Kyle Field. Garcia was using the Caterpillar's
grapple bucket to catch concrete debris from the overhead work.
15. Shortly before noon, a portion of concrete larger than the Caterpillar was able to
control, broke free from a beam and fell into the grappling bucket. The weight caused the
Caterpillar to lose control and topple forward and over the nearby edge of the work
platform. The skid steer hit a concrete beam on the way down, causing it to flip repeatedly.
As a result, Garcia was ejected and landed in a pile of rubble, back first, suffering massive
trauma to his torso, face and head. Despite the severity of his injuries, Garcia remained
conscious and in agonizing pain after the fall.
4
16. Garcia was transported by ambulance to St. Joseph Hospital emergency room in
Bryan, Texas. Despite their efforts, 28 year-old Garcia succumbed to his injuries and was
pronounced dead at St. Joseph Hospital. Garcia is survived by his mother, Josefina
Garcia, and his two minor children, 7 year-old Ashley Garcia and 6 year-old Bryan Garcia.
VIII.
NEGLIGENCE
MANHATTAN I VAUGHN, JVP and TEXAS CUTTING & CORING, LP
17. Defendants Manhattan I Vaughn and Texas Cutting & Coring, LP owed duties to
Plaintiffs. Defendants breached their duties and were negligent in one or more of the
following ways:
a. Failing to provide and maintain a safe workplace;
b. Failing to properly plan and engineer a safe demolition process;
c. Failing to adequately coordinate the work of contractors to ensure a safe
work place;
d. Failing to adequately monitor and test the structural integrity and
weight of the concrete/structure at issue, before and after the
demolition process started;
e. Failing to test the structural integrity of the barrier on the 4th floor level where
Garcia was working;
f. Falling to provide an adequate barrier for the work that was being done in the
area where Garcia was working;
g. Failing to properly train and supervise workers, including Garcia;
h. Failing to provide adequate fall protection to Garcia;
I. Failing to abide by federal OSHA regulations;
j. Failing to provide or require the use of OSHA-mandated safety equipment
and procedures on the job-site;
k. Failing to provide appropriate equipment for the job task assigned to Garcia;
5
I. Failing to prohibit the use of unsafe and inadequate equipment for the job
task assigned to Garcia;
m. Failing to have adequate safety policies and procedures in place;
n. Failing to properly warn Garcia of the dangers associated with the
work he was doing;
o. Failing to properly warn Garcia of the dangers of the work being performed
by other contractors in the area; and
p. Failing to promulgate and enforce minimum safety standards or
operational procedures.
18. Defendants' acts and omissions were a proximate cause of Plaintiffs' injuries.
IX.
GROSS NEGLIGENCE • LINDAMOOD DEMOLITION
19. Defendant Lindamood Demolition owed certain duties to Plaintiff. Defendant
breached its continuous and non-delegable duty to provide a safe workplace and was
grossly negligent in one or more of the following ways:
a. Failing to provide Garcia with a safe workplace;
b. Failing to provide adequate safety equipment and training;
c. Failing to provide adequate construction equipment and training;
d. Failing to prevent Garcia from performing construction activities known to be
.unsafe;
e. Failing to ensure Garcia was assisted by adequately trained and
competent laborers;
f. Failing to modify or stop construction activities known to be unsafe;
g. Intentionally allowing Garcia to perform construction activities known to be
unsafe and extremely dangerous.
h. Instructing workers, including Garcia, to perform work in violation of OSHA
regulations; and
I. Allowing and instructing workers, including Garcia, to handle loads of
concrete in .excess of the weight limitations of the equipment they were
using.
6
20. Defendant's conduct, when viewed from the standpoint of the actors at the time of
the occurrence, involved an extreme degree of risk, considering the probability and
magnitude of the potential harm to others. Furthermore, Defendant's conduct illustrates
not only an attitude of conscious indifference for the rights, safety and welfare of others,
but also shows Defendant's actual and subjective awareness of the dangers of such
conduct.
21. Nevertheless, Defendant proceeded with a conscious indifference to the rights,
safety or welfare of others, including Plaintiff. Therefore, Defendant is liable for exemplary
damages to Plaintiffs under TEX. LAB. CODE §408.001.
x.
RESPONDEAT SUPERIOR
22. Defendants are liable for the torts committed by their employees during the course
and scope of their employment. Specifically, Defendants' employees, acting within the
course and scope of their employment (and in furtherance of Defendant's business), had
a general duty to exercise reasonable care in performing their work. Such employees,
however, failed to exercise the requisite standard of care under the circumstances. As a
result, Defendants are liable for the injuries suffered by Plaintiff.
XI.
WRONGFUL DEATH DAMAGES
23. Plaintiffs request the following damages to be considered separately and individually
for the purpose of determining the sum of money that will fairly and reasonably
compensate the estate:
7
a. Plaintiffs' pecuniary loss from the death of Angel Garcia, including
loss of care, maintenance, support, services, advice, counsel and
contributions of pecuniary value that they would, in all reasonable
probability, have received from Angel Garcia during his lifetime;
b. The mental anguish, ·grief and sorrow Plaintiffs suffered in the past
and will continue to suffer in the future as a result of Angel Garcia's
death;
c. Josefina Garcia's loss of society and damage to the mother-son
relationship, including the right to love, affection, solace, comfort,
companionship, society, emotional support and happiness;
d. Ashley Garcia's loss of parental consortium and damage to the father-
daughter relationship, including the right to love, affection, solace,
comfort, companionship, society, emotional support and happiness;
e. Bryan Garcia's loss of parental consortium and damage to the father-
son relationship, including the rightto love, affection, solace, comfort,
companionship, society, emotional support and happiness;
f. Plaintiffs' loss of monetary support due to the death of Angel Garcia
they would, in all reasonable probability, have received during his
lifetime;
g. Plaintiffs' loss of inheritance from Angel Garcia who, in reasonable
probability, would have added to the estate had he died a natural
death; and
h. Attorneys' fees and court costs.
XII.
SURVIVAL DAMAGES TO THE ESTATE OF ANGEL GARCIA
24. Plaintiffs respectfully request the following damages to be considered separately
and individually for the purpose of determining the sum of money that will fairly and
reasonably compensate the estate:
a. The physical, conscious pain and suffering Angel Garcia suffered
prior to his death as a result of her injuries sustained from Defendant;
b. The mental anguish Angel Garcia suffered prior to his death as a
result of the injuries sustained;
8
c. The amount of reasonable medical expenses necessarily incurred as
a result of Defendant's negligence;
d. The disfigurement Angel Garcia suffered prior to his death as a result
of the injuries sustained;
e. The physical incapacity and impairment suffered by Angel Garcia until
his death;
f. The funeral and burial expenses incurred as a result of her death;
g. The physical incapacity and impairment suffered by Angel Garcia until
his death; and
h. The reasonable amount of past wages from the date of Garcia's
death to present and the loss of future income reasonably expected
during Garcia's lifetime.
XIII.
EXEMPLARY DAMAGES
25. Defendants' conduct, when viewed from the standpoint of the actors at the time of
the occurrence, involved an extreme degree of risk, considering the probability and
magnitude of the potential harm to others. Furthermore, Defendants' conduct illustrates
not only an attitude of conscious indifference for the rights, safety and welfare of others,
but also shows Defendants' actual and subjective awareness of the dangers of such
conduct.
26. Nevertheless, Defendants proceeded with a conscious indifference to the rights,
safety or welfare of others, including Plaintiffs. Therefore, Defendants are liable for
exemplary/punitive damages ..
XIV.
MAXIMUM MONETARY RELIEF
27. Pursuant to TEX. R. C1v. P. 47, Plaintiffs seek damages in excess of $1,000,000.00
and demands a judgment for all other relief to which he is entitled. The maximum amount
Plaintiffs will seek is $50,000,000.00.
9
xv.
CONDITIONS PRECEDENT
28. All conditions precedent have been performed or have occurred as required by
Texas Rule of Civil Procedure 54.
XVI.
JURY DEMAND
29. Plaintiffs DEMAND A TRIAL BY JURY and tender the appropriate fee.
XVII.
PRAYER
30. For the above reasons, Plaintiffs pray they have judgment against Defendants,
jointly and severally, together with interest on the judgment at the legal rate, pre-judgment
interest, costs of court and for such other further relief, both in law and equity, to which the
Plaintiffs may show themselves justly entitled.
Respectfully Submitted,
THE: l31ascN LAW FIRM
Jason A. Gibson
State Bar No. 24000606
Clifford D. Peel II
State Bar No. 24068776
Casey L. Jordan
State Bar No. 24090599
The Lyric Centre
440 Louisiana, Suite 2050
Houston, Texas 77002
Ph: (713) 650-1010
Fax: (713) 650-1011
10
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I certify a copy of this document was served to all counsel of record by first class
regular mail and/or fax on December 29, 2014.
Jason A. Gibson
11
Envelope Details Page 1 of2
Print this page
Case # 201376550 - GARCIA, JOSEFINA (INDIVIDUALLY
AND AS HE v J T VAUGHN CONSTRUCTION INC (DBA
VAUGHC
Case Information
Location Harris County - 80th Civil District Court
Date Filed 12/29/2014 03:09:02 PM
Case Number 201376550
GARCIA, JOSEFINA (INDIVIDUALLY AND AS HE v J T
Case Description
VAUGHN CONSTRUCTION INC (DBA VAUGH C
Assigned to Judge
Attorney Jason Gibson
Firm Name Gibson Law Firm
Filed By Jason Gibson
Filer Type Attorney
Fees
Convenience Fee $0.06
Total Court Case Fees $0.00
Total Court Filing Fees $0.00
Total Court Service Fees $2.00
Total Filing & Service Fees $0.00
Total Service Tax Fees $0.00
Total Provider Service Fees $0.00
Total Provider Tax Fees $0.00
Grand Total $2.06
Payment
Account Name Amex
Transaction Amount $2.06
Transaction Response Approved
Transaction ID 5945401
Order# 003605052-0
·---·---- ··----·· - - -
No Fee Documents Not Answers
Filing Type EFileAndServe
Filing Code No Fee Documents Not Answers
Filing Description Plaintiffs' Second Amended Petition
Reference Number GARCIA
Comments
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Please find attached for filing Plaintiffs' Second Amended Petition.
Thanks!
Status Accepted
Accepted Date 2014-12-29 21:52:34 UTC
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Documents
Plaintiffs' Second Amended Petition-
Lead Document [Orir,;inal] [Transmitted]
GARCIA.pdf
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The Miller Law Firm
DATE: December 29, 2014
FROM: Jason A. Gibson/jt
WE ARE SENDING (12) PAGES (including this page).
RE: Cause No. 2013-76550; Josefina Garcia, Individually, et al v. J. T. Vaughn
Construction, LLC dlbla Vaughn Construction, et al; In the 801h Judicial District
Court, Harris County, Texas
MESSAGE: Please see attached:
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-THE GIBSON LAW FIRM
••••• e-STUDI0190F ••••••••••••••••• -
GI THE GIBSON LAW F'IRM
FAX COVER SHEET
TO: Michael A. Miller FAX: (469) 916-2555
The Miller Law Firm
DATE: December29,2014
FROM: Jason A. Gibsonljt
WE ARE SENDING (12) PAGES (Including this page).
RE: Couse No. 2013·76550; Josefina Garcia, lndMdua/ly, et al v. J. T. Vaughn
Construction, U.C dlbla Voughn Construction, et al,· In the so"' Judicial Dlstrlct
Court, Harris County, Texas ·
MESSAGE: Please see attaclied:
1) Plaintiffs' Second Amended Petition
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Jana Thompson
From: Jana Thompson
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Subject: E-Filed Docs - Cause No. 2013-76550
Attachments: Plaintiffs' 2nd Amended Petition.pdf
Good afternoon. Please see attached for the above referenced case. Should you have any questions, please do not
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CiilBl!ICN I.AW Fl~M
Jana L. Thompson
The Gibson Law Firm
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Phone: 713.650.1010
Fax: 713.650.1011
www.iag-lawfirm.com
1
TAB2
Cause No. 2013-76550
JOSEFINA GARCIA, Individually § IN THE DISTRICT COURT OF
and as Representative of the ESTATE §
OF ANGEL GARCIA, and §
ORBELINDA HERRERA, as Next §
Friend of ASHLEY GARCIA and BRIAN §
GARCIA, Minors §
§
v. § HARRIS COUNTY, TEXAS
§
§
J.T. VAUGHN CONSTRUCTION, LLC, §
d/b/a VAUGHN CONSTRUCTION, §
MANHATTAN CONSTRUCTION §
CO., INC., MANHATTAN I VAUGHN, JVP, §
TEXAS CURB CUT, INC., TEXAS §
CUTTING & CORING GROUP, INC. §
and LINDAMOOD DEMOLITION, INC. § 801h JUDICIAL DISTRICT
PLAINTIFF JOSEFINA GARCIA'S FIRST REQUEST FOR PRODUCTION
TO DEFENDANT MANHATTAN I VAUGHN. JVP
TO: Defendant, MANHATTAN I VAUGHN, JVP, by and through its attorney of record,
Michael A. Miller, The Miller Law Firm, Turtle Creek Centre, 3811 Turtle Creek
Blvd., Suite 1950, Dallas, Texas 75219.
Plaintiff, Josefina Garcia, Individually and as Representative of the estate of Angel
Garcia, serves her First Request for Production to Defendant Manhattan /Vaughn, JVP
pursuant to Rule 196 of the Texas Rules of Civil Procedure.
Respectfully Submitted,
THE GIBSON LAW FIRM
so . 1 son
Stat Bar No. 24000606
Clifford D. Peel II
State Bar No. 24068776
The Lyric Centre
440 Louisiana, Suite 2400
Houston, Texas 77002
Ph: (713) 650-1010
Fax: (713) 650-1011
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I certify a copy of this document was served to all counsel of record by first class
regular mail andfor fax on March 11, 2014.
2
DEFINITIONS
"Manhattan I Vaughn" refers to Manhattan I Vaughn, JVP.
"Lindamood" refers to Lindamood Demolition, Inc.
"Kyle Field renovation project" refers to the construction and demolition project
during which the subject incident took place.
"Northeast pedestrian ramp" refers to the structure location of the subject incident.
FIRST REQUEST FOR PRODUCTION
PLEASE PRODUCE THE FOLLOWING:
1. All records documenting Angel Garcia's employment with Manhattan I Vaughn,
including but not limited to personnel files, work history, time logs, payment records
and training logs.
2. All contracts or other written agreements entered between Manhattan I Vaughn,
Texas A & M or any defendant in this case, related to the Kyle Field renovation
project.
3. All correspondence between Manhattan I Vaughn, Texas A &Mor any other entity
or defendant in this case, related to the Kyle Field renovation project, including but
not limited to correspondence related to contracts or agreements for the
performance of activities related to construction, construction management,
accident prevention or safety at the work site.
4. All documents related to, documenting or describing the scope of work to be
performed by Manhattan I Vaughn for the Kyle Field renovation project.
5. All documents related to or discussing demolition work, purchase of materials,
supplies, provision of equipment, provision of labor, safety, insurance and workers'
compensation, as it applies to any defendant in this case.
6. All documents and correspondence related to the progress of the Kyle Field
renovation project between or among the parties, including Manhattan I Vaughn,
Lindamood, or any other party with responsibilities on the Kyle Field renovation
project site.
7. All notes and documents in possession of Manhattan I Vaughn regarding
inspections performed by OSHA on the Kyle Field renovation project.
8. All documents related to inspections done on the Kyle Field renovation project,
including but not limited to the area where Angel Garcia was working and killed.
3
9. All minutes of meetings (or other similar document) at which planning, risk
management, engineering, demolition or safety was discussed.
10. All recordings or videos of the work being performed on the Kyle Field renovation
project, including audio or video footage of the incident in question.
11. All documents identifying safety issues or concerns as it pertains to the Kyle Field
renovation, including but not limited to the demolition process and the work being
performed by Angel Garcia and his employer.
12. All documents mentioning actions taken by defendants to correct any safety issues
that were identified, as it pertains to the Kyle Field renovation project.
13. All documents and plans of the Kyle Field renovation project, including but not
limited to blue prints, specifications, structural general notes and structural plan
sheets, defining demolition work to be performed on the existing northeast
pedestrian ramp.
14. All documents including specifications, general conditions and supplemental
conditions generated by any party or other entity, describing the scope of work
and/or services (specifically including safety and demolition) to be done on the Kyle
Field renovation project.
15. All correspondence between Manhattan I Vaughn and any other entity involved with
the Kyle Field renovation project that mentions job progress, scheduling, safety,
hazard identification or job-site hazards.
16. All documents related to the Kyle Field renovation project, which mention the
methods and/or schedule of performance of demolition work to be performed by
Manhattan I and its employees.
17. All minutes of Pre-Construction meetings related to Kyle Field renovation project.
18. All contracts issued by Manhattan I Vaughn related to the structural demolition
scope of work being performed on the northeast pedestrian ramp where the subject
incident occurred on 12/3/2013.
19. All correspondence and emails between Manhattan I Vaughn and Lindamood
related to demolition activities and the Kyle Field renovation project.
20. All documents reflecting responsibilities of Manhattan I Vaughn employees related
to performance or oversight of demolition activities.
4
21. All documents which show engineering surveys performed by any party or entity,
related to the demolition of structural concrete for the Kyle Field renovation project,
pursuant to OSHA 29 CFR 1926.BSO(a).
22. All documentation and correspondence discussing engineering surveys performed
by any party or entity, related to the demolition of structural concrete for the Kyle
Field renovation project, pursuant to OSHA 29 CFR 1926.850(a).
23. All documents reflecting qualifications and training of persons who performed
engineering surveys related to the demolition of structural concrete on the Kyle Field
renovation project, pursuant to OSHA 29 CFR 1926.BSO(a).
24. All documents reflecting qualifications and training of persons who operated
equipment (machinery) for Manhattan I Vaughn such as the Caterpillar Skid-Steer
Loader being operated by Angel Garcia at the time of his death.
25. All documents, details or sketches addressing the specific dimensions and scope
of the demolition of the concrete structure being worked on by Angel Garcia
immediately prior to the subject collapse that led to Mr. Garcia's fall.
26. All documents reflecting observations by any party or person regarding the nature
of spalling (or failure) of existing concrete members of the northeast, spiral
pedestrian ramp during demolition activities prior to the time of the subject incident.
27. All documents showing inspections and inspection results of the demolition activities
being performed on the northeast spiral, pedestrian ramp.
28. All Job Hazard Analyses, Job Safety Analyses (JHA, JSA or similar such formal
process) done for the work activities of the demolition of structural concrete of the
northeast pedestrian ramp, including the specific work being done by Angel Garcia.
29. All documents and plans for temporary shoring to be utilized during the demolition
work of structural concrete of the northeast pedestrian ramp, at the location of the
subject incident.
30. All correspondence, documents and emails between Manhattan I Vaughn (or any
other party or entity) and Lindamood, reflecting the designation of a Competent
Person proposed by Lindamood for the Kyle Field renovation project, as required
by OSHA regulations 29 CFR 1926.20(b)(2).
31. All safety management or accident prevention programs, policies, manuals, safety-
related rules and requirements for all work to be performed within the scope of the
Kyle Field renovation project.
5
32. All safety management or accident prevention programs, policies, manuals, safety-
related rules, etc. related to the Kyle Field renovation project, created or adopted
by Manhattan I Vaughn prior to the incident which were required by the authority of
Manhattan I Vaughn to be utilized by subcontractors or others on the Kyle Field
renovation project.
33. All published requirements of any federal, state or local agency or any related
standard of any national consensus standard promulgating organization, addressing
requirements or recommendations for accident prevention and for the protection of
employees or others on site with which Manhattan I Vaughn acknowledges they or
others under the authority of Manhattan I Vaughn were to comply or operate on the
Kyle Field renovation project on the date of the incident.
34. All documents reflecting statements by employees of Manhattan I Vaughn or any
other party on the Kyle Field renovation project site describing the incident in
question.
35. All documents reflecting statements by employees of Manhattan I Vaughn or any
other party on the Kyle Field renovation project site describing the events leading
up to the subject incident, or the incident itself.
36. All initial-employment safety orientation, any specific safety management or
accident prevention training or seminars provided by Manhattan I Vaughn or by any
party, to employees of any contractor or subcontractor working on the Kyle Field
renovation project.
37. All periodic reports of the progress of work performed on the Kyle Field renovation
project.
38. All reports of accidents, on the job injuries or accident statistics related to the Kyle
Field renovation project.
39. All records or minutes of periodic safety "toolbox" or "tailgate" meetings performed
on the job site, dating from the commencement of demolition activities through
12131/2013, with employees and/or with other contractors or subcontractors on the
Kyle Field renovation project, including records of the topics discussed and
attendance lists.
40. All reports of the incident made by any party or person.
41. All schedules related to the Kyle Field renovation project, listing milestone dates,
depicting the proposed progress of construction, schedules reflecting proposed
progress for demolition activities on the subject pedestrian ramp involved in the
subject incident.
6
42. All job-site safety inspection reports (dated from the start of construction of the Kyle
Field renovation project through12/31/2013).
43. All checklists utilized on the Kyle Field renovation project to assist in performance
of job-site safety inspection efforts, and specifically, all such checklists or
documents which relate to or mention the subject of demolition, structural integrity
or safety.
44. All written procedures or requirements for the pre-qualification and selection of
contractors or subcontractors for the Kyle Field renovation project.
45. All records of formal training given to any worker or employee (assigned to the Kyle
Field renovation project prior to the subject incident), related to the methods and
techniques of demolition activities, in general, and specifically, demolition of
concrete structures.
46. All reports generated as a result of the subject incident.
47. All OSHA reports or documents, including correspondence, related to the subject
incident.
48. All documents related to any investigation conducted as a result of the incident in
question.
49. Color copies of all photographs and videos taken of the scene of the subject
incident, before and after the incident.
50. All pictures and videos generated as a result of any investigation conducted after
the incident in question.
51. All videos and footage taken by the "construction cams" of the Kyle Field renovation
project during the period of 11/1/2013 through 12/31/2013.
52. All documents of the overall site plan reflecting the scope and layout of the Kyle
Field renovation project.
53. All documents reflecting the name of each company or contractor present at the
Kyle Field work site on the day Angel Garcia was killed.
54. All documents reflecting the names of every worker at the Kyle Field work site on
the day Angel Garcia was killed.
55. All specifications, limitations, maximum weight loads or warnings provided with, or
attached to, the Caterpillar Skid-Steer Loader being operated by Angel Garcia at the
time he was killed.
7
56. The owner's and/or operator's manual for the Caterpillar Skid-Steer Loader being
operated by Angel Garcia at the time he was killed.
57. All structural integrity testing done on the concrete structure in the area where Angel
Garcia was working on the day of the incident in question. This includes testing
done prior to and after the exact moment when the incident in question occurred.
58. All testing, engineering or otherwise, done on the concrete structure in the area
where Angel Garcia was working on the day of the incident in question. This
includes testing done prior to and after the exact moment when the incident in
question occurred.
59. All work plans for the specific work Angel Garcia was performing when he was
killed.
60. All correspondence between defendants in this case and any insurance company,
regarding coverage for personal injury or death claims, before the incident in
question.
61. All correspondence between defendants in this case and any insurance company,
regarding coverage for personal injury or death claims, after the incident in question.
62. All correspondence between defendants in this case regarding the incident in
question.
63. All insurance reports regarding the incident in question.
64. All documents relied up or reviewed by any person, entity or insurer, to generate a
report regarding the incident in question.
65. All permits obtained for the demolition work being performed as a part of the Kyle
Field renovation project.
66. All waivers of conflict signed, allowing representation of all Defendants by one law
firm.
8
TAB3
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Cause No. 2013-76550
JOSEFINA GARCIA, Individually § IN THE DISTRICT COURT OF
and as Heir to the Estate of ANGEL §
GARCIA (Deceased); and ORBELINDA §
HERRERA, as Next Friend of ASHLEY §
GARCIA and BRYAN GARCIA (Minors) §
§
v. § HARRIS COUNTY, TEXAS
§
J.T. VAUGHN CONSTRUCTION, LLC, §
d/b/a VAUGHN CONSTRUCTION; §
MANHAITAN CONSTRUCTION §
CO., INC.; MANHATTAN IVAUGHN, JVP; §
TEXAS CUITING & CORING LP; §
TEXAS CUITING & CORING GP, INC.; §
and LINDAMOOD DEMOLITION, INC. § 80th JUDICIAL DISTRICT
PLAINTIFFS' SECOND MOTION TO COMPEL DEFENDANTS'
ANSWERS & RESPONSES TO WRITTEN DISCOVERY
TO THE HONORABLE LARRY WEIMAN:
Plaintiffs, JOSEFINA GARCIA, Individually and as Heir to the Estate of ANGEL
GARCIA; and ORBELINDA HERRERA, as Next Friend of ASHLEY GARCIA and
BRYAN GARCIA, Minors (hereinafter "Plaintiffs"), file this Second Motion to Compel
Defendants J.T. VAUGHN CONSTRUCTION, LLC, d/b/a VAUGHN CONSTRUCTION;
MANHAITAN CONSTRUCTION CO., INC.; MANHATTAN IVAUGHN, JVP; TEXAS
CUTTING & CORING LP; TEXAS CUTTING & CORING GP, INC.; and LINDAMOOD
DEMOLITION, INC.'s (hereinafter "Defendants") Answers & Responses to Written
Discovery and would respectfully show:
I.
FACTS
1. Since filing Plaintiffs' first Motion to Compel Defendants' Responses to Requests
for Disclosure, Defendants' have also failed to fully respond to Plaintiffs' Interrogatories
and Requests for Production that were due on April 30, 2014 at 5:00pm. Despite the
/) \
I
allowance of additional time, Defendants yet again disregarded a discovery deadline
and failed to respond in the following ways:
A. J.T. Vaughn Construction, LLC, d/b/a Vaughn Construction:
Due Date: 4130114 @ 5:00pm
Outstanding Responses:
1. All BATES labels referencing documents responsive
to each request for production.
2. RFP No. 13 - Blueprints and plans of Kyle Field.
3. RFP No. 25 - Documents, details and sketches that
address specific dimensions and scope of demolition of
concrete structure being worked on immediately prior to
subject collapse.
4. RFP No. 26 - Documents reflecting observations by any
party or person regarding the nature of spelling (or failure)
of existing concrete members of the northeast, spiral
pedestrian ramp during demolition activities prior to the
time of the subject incident.
5. RFP No. 29 - Documents and plans for temporary shoring
to be utilized during the demolition work of structural
concrete of the NE pedestrian ramp, at the locations of the
subject incident.
6. RFP No. 34 - All documents reflecting statements by
employees of MVJV or any other party on the Kyle Field
renovation project site describing the incident in question.
B: Manhattan Construction Co., Inc.:
Due Date: 4130114 @ 5:00pm
Outstanding Responses:
1. All BATES labels referencing documents responsive
to each request for production.
2. RFP No. 13 - Blueprints and plans of Kyle Field.
3. RFP No. 18 - All contracts issued by Manhattan
Construction related to structural demolition
performed on northeast pedestrian ramp.
4. RFP Nos. 21& 22 - Engineering surveys related to the
demolition of structural concrete for Kyle Field. This
is required by OSHA Standard 1926.850(a).
Defendant's response states it has "none."
2
:··-·\
: )
"
,i
5. RFP No. 40 - Missing incident reports referenced in
Defendant's production set:
Safety Report of Injury, Accident Investigation,
and DWC Form-1 as referenced in
MANHATTAN000667
Formal Incident Report as referenced in
MANHATTAN000674
C: ManhattanjVaughn,JVP:
Due Date: 4130114@5:00pm
Outstanding Responses:
1. All BATES labels referencing documents responsive
to each request for production.
2. RFP No. 13 - All documents and plans of Kyle Field
renovation project, including but not limited to blue
prints, specifications, and structural plan sheets,
defining demolition work to be performed on the
existing northeast pedestrian ramp as referenced in
MVJV000458-459.
3. RFP No. 13 - Project specifications for demolition
work as referenced in MVJV000442-000443.
4. RFP No. 16 - Actual project schedule for demolition
activities. Defendant only provided draft schedule at
MVJV000544-604.
5. RFP Nos. 21& 22 - Engineering surveys related to the
demolition of structural concrete for Kyle Field. This
is required by OSHA Standard 1926.850(a).
Defendant's response states it has "none."
6. RFP No. 25 - All documents, details or sketches
addressing specific dimensions and scope of
demolition. Project documents require that Building
Information Modeling (BIM) models, images and data
be used for construction. See MVJV000176-178.
7. ROG No. 19 - Defendant failed to identify all permits
obtained for the demolition work performed at Kyle
Field.
3
'·J'
D: Texas Cutting & Coring LP:
Due Date: 4!30!14@5:00pm
Outstanding Responses:
1. All written answers and responses to Plaintiffs'
interrogatories and requests for production without
objections. This includes all documents responsive to
Plaintiffs' requests for production. To date, Defendant
has only produced responses to Plaintiffs' Requests
for Disclosure.
E: Lindamood Demolition, Inc.:
Due Date: 4130114 @5:00pm
Outstanding Responses:
1. ROG No. 7 - Defendant did not provide any of the
requested information regarding past OSHA
violations.
2. ROG No. 18 - Defendant failed to identify all remedial
measures it took after the subject incident.
3. ROG No. 19 - Defendant failed to identify all permits
obtained for the demolition work performed at Kyle
Field. .
4. ROG No. 20 - Defendant failed to identigy ariy
workers employed by Defendant who were injuried on
Kyle Field project since the date of the subject
incident.
5. @LMD000286 - Employer's First Report of Injury:
states that the "List of witnesses" was attached. This
list was not included in Defendant's production set.
6. @LMD000332 - Contract documents were not
included with Defendant's subcontract with Defendant
Manhattan Vaughn, JV.
7. @LMD000758 - The written statement of Daniel
Burge is incomplete.
8. RFP Nos. 21-23 - Engineering surveys and
information related to personnel who conducted those
surveys. This is required by OSHA Standard
1926.850(a). Defendant's response states "no
responsive documents have been identified at this
4
time."
9. RFP No. 40 - Missing incident reports referenced in
Defendant's production set:
Summary Report referenced LMD000480;
Investigation Report referenced LMD000482;
Safety Violation Report referenced LMD000498
II.
MOTION TO COMPEL RESPONSES
2. The Court may compel a party to provide answers and responses to properly
served discovery requests. 1 To date, all Defendants have failed to timely respond to
Plaintiffs' Interrogatories and Requests for Production. Failure to timely plead
objections from discovery will result in waiver of any object or claimed privilege.2
Therefore, Defendants must be compelled to provide these responses.
Ill.
REQUEST FOR RELIEF
3. Plaintiffs ask the Court to GRANT Plaintiffs' Second Motion to Compel
Defendants', J.T. VAUGHN CONSTRUCTION, LLC, d/b/a VAUGHN CONSTRUCTION;
MANHATIAN CONSTRUCTION CO., INC.; MANHATTANIVAUGHN, JVP; TEXAS
CUTTING & CORING LP; TEXAS CUTTING & CORING GP, INC.; and LINDAMOOD
DEMOLITION, INC.'s Answers & Responses to Plaintiffs' Written Discovery.
I Tex. R. Civ. P. 215.1(b).
2 See Jn re Kevin Gore, 251S.W.3d696, 700 (Tex. App.-San Antonio 2007, orig. proceeding).
5
/~\
' )
Respectfully Submitted,
THE GIBSON LAW FIRM
Ja n . Gibson
Sta ar No. 24000606
Clifford D. Peel II
State Bar No. 24068776
Jonathan D. Sneed
State Bar No. 24085594
The Lyric Centre
440 Louisiana, Suite 2400
Houston, Texas 77002
Ph: (713) 650-1010
Fax: (713) 650-1011
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I certify a copy of this document was served to all counsel of record by first class
regular mail and/or fax on June 12, 2014.
2
/ ) i\
". )
Cause No. 2013-76550
JOSEFINA GARCIA, Individually § IN THE DISTRICT COURT OF
and as Heir to the Estate of ANGEL §
GARCIA (Deceased); and ORBELINDA §
HERRERA, as Next Friend of ASHLEY §
GARCIA and BRYAN GARCIA (Minors) §
§
v. § HARRIS COUNTY, TEXAS
§
J.T. VAUGHN CONSTRUCTION, LLC, §
d/b/a VAUGHN CONSTRUCTION; §
MANHATTAN CONSTRUCTION §
CO., INC.; MANHATTAN IVAUGHN, JVP; §
TEXAS CUTTING & CORING LP; §
TEXAS CUTTING & CORING GP, INC.; §
and LINDAMOOD DEMOLITION, INC. § SO'h JUDICIAL DISTRICT
ORDER GRANTING PLAINTIFFS' SECOND MOTION TO COMPEL DEFENDANTS'
ANSWERS & RESPONSES TO WRITTEN DISCOVERY
The Court heard Plaintiffs' Second Motion to Compel Defendants', J.T. Vaughn
Construction, LLC, d/b/a Vaughn Construction; Manhattan Construction Co., Inc.;
Manhattan !Vaughn, JVP; Texas Cutting & Coring LP; Texas Cutting & Coring GP, Inc.;
and Lindamood Demolition, Inc. (collectively "Defendants"), Answers & Responses to
Written Discovery. After reviewing the pleadings, the evidence and arguments by
counsel, if any, the Court GRANTS Plaintiffs' Motion to Compel.
The Court orders Defendants to submit answers and responses to Plaintiffs'
written discovery without objections on or before , 2014.
SIGNED ON _ _ _ _ _ _ _ _ _ _ _ , 2014.
HON. LARRY WEIMAN
TAB4
Chris oat\ f), l7P-2l~4Ai:
'J"m\12014632
By; BRADLEY DARNELL
CAUSE NO. 2013 76550
§
JOSEFINA GARCIA, Individually and, IN THE DISTRICT COURT,
as Heir to the ESTATE OF ANGEL §
§
GARCIA (Deceased); and ORBELINDA
§
HERRERA, as Next Fried of ASHLEY
GARCIA and BRIAN GARCIA §
(Minors), §
§
Plain tiffs, §
§
~ §
§ SOTH JUDICIAL DISTRICT
J.T. VAUGHN CONSTRUCTION, LLC, §
d/b/a VAUGHN CONSTRUCTION, §
MANHATTAN CONSTRUCTION CO., §
INC., MANHATTAN I VAUGHN, JVP, §
TEXAS CUTTING & CORING, LP, §
TEXAS CUTTING & CORING GP, §
INC., and LINDAMOOD §
DEMOLITION, INC., §
§
Defendants § OF HARRIS COUNTY, TEXAS
DEFENDANTS' RESPONSE TO PLAINTIFFS' SECOND MOTION TO COMPEL
ANSWERS AND RESPONSES TO WRITTEN DISCOVERY
TO THE HONORABLE JUDGE WEIMAN:
COMES NOW J. T. Vaughn Construction, LLC, dlb/a Vaughn Construction, Manhattan
Construction Co., Inc., Manhattan I Vaughn, Texas Cutting & Coring, LP, and Lindamood
Demolition, Inc., (collectively "Defendants" herein) in the above-styled and numbered cause,
and file this, their Response to Plaintiffs' Second Motion to Compel Defendants' Answers and
Responses to Written Discovery. In support of same, Defendant would respectfully show the
Court the following:
Defendants' Response to Plaintiff:!!' Second Motion to Compel Page 1
I.
PROCEDURAL BACKGROUND/UNDISPUTED FACTS
1.1 Plaintiffs originally filed suit in this matter on December 23, 2013 against J.T. Vaughn
Construction, LLC, d/b/a Vaughn Construction, Manhattan Construction Co., Inc., Manhattan I
Vaughn, Texas Curb Cut, Inc., Texas Cutting & Coring Group, Inc., and Lindamood Demolition,
Inc. Accompanying the Original Petition were discovery requests directed to each Defendant,
including requests for disclosure, numerous requests for production, and extensive
interrogatories.
1.2 On April 17, 20 I 4, Plaintiffs filed their First Amended Petition. Texas Curb Cut, Inc.
and Texas Cutting & Coring Group, Inc. were non-suited by virtue of not being listed as parties
to the litigation. In their place were included Texas Cutting & Coring, LP and Texas Cutting &
Coring GP, Inc. As of this writing, Texas Cutting & Coring GP, Inc. has not been served with
citation.
1.3 On May 2, 2014, during a hearing on Plaintiffs' first Motion to Compel, the trial court
made it abundantly clear that discovery disputes, should they arise, should first be addressed by
phone calls between the counsel to try and work out matters before seeking court relief.
1.4 The Defendants provided an example of how to resolve discovery problems without first
resorting to motions and hearing prior to the deposition of Orbelinda Herrera on June 13, 2014.
Defendant's counsel pointed out that Plaintiffs' counsel sent out interrogatory responses that
were not verified or signed by Plaintiffs' counsel and that he wanted to bring that to their
attention instead of filing a motion to compel. See Exhibit "A," a true and correct copy of an
excerpt from the deposition of Orbelinda Herrera, page 4, attached hereto and incorporated by
reference as if set forth verbatim herein.
DEFENDANT'S REsPONSE PAGE2
1.5 Plaintiffs have considerably complicated responding to their Motion to Compel by failing
to attach the discovery responses they are complaining of to their Motion. There are four
putative plaintiffs in this matter (Josefina Garcia, Individually, Josephina Garcia as Heir to the
Estate of Angel Garcia, Orbelinda Herrera as Next Friend of Ashley Garcia, and Orbelinda
Herrera as Next Friend of Bryan Garcia}, most or all of which have served written discovery on
one or more defendants. Further, the Plaintiffs make inaccurate statements regarding the alleged
tardiness of Defendants' Responses. This is not the first time that Plaintiffs have had trouble
understanding the Texas Rules of Civil Procedure pertaining to service of documents, as
discussed in Defendants' Response to Plaintiffs Motion to Compel, which is incorporated by
reference as if set forth verbatim herein.
II.
ADDITIONAL RELEVANT FACTS AND ARGUMENT
2.1 Defendant first notes that Plaintiffs' Second Motion to Compel Defendants' Answers and
Responses to Written Discovery does not contain a certificate of conference as required by Rule
3.3.6 of the Rules of The Civil Trial Division of the Harris County District Court Rules. See
HARRIS COUNTY DISTRICT COURTS, CIVIL TRIAL DIV. R. 3.3.6. The Local Rules do not suggest a
remedy for this failure to follow the Local Rules, but the omission is indicative of the lack of
communication from Plaintiffs regarding discovery issues.
2.2 Defendants next point out that Plaintiffs' Motion does not indicate any attempts to
reconcile the discovery dispute prior to filing the Motion and setting it for hearing. As will be
discussed below, it is quite possible that many of these issues could have been cleared up without
the necessity of taking up the Court's time.
DEFENDANT'S REsPONSE PAGE3
2.3 While the defendants involved in this Motion to Compel have common representation,
each has followed the Texas Rules of Civil Procedure in that each has only produced documents
over which it has control. This extends to Vaughn and Manhattan who, while also general
partners in Manhattan I Vaughn, are subcontractors with limited scopes of work. Vaughn's
scope of work concerns concrete work while Manhattan's scope of work is general labor. To
prevent confusion and useless redundancy, Manhattan and Vaughn have not produced documents
outside of their scope of subcontracting work, and Manhattan I Vaughn has answered as the
separate entity it is.
III.
Vaughn
3.0 Plaintiffs have segregated their complaints by party, and Defendants will organize their
Response in a similar fashion. The first issues to be addressed are the incorrect assertions
regarding when the discovery responses were due. For example, by virtue of a Rule 11
agreement, defendant J.T. Vaughn Construction, LLC, d/b/a Vaughn Construction (hereinafter
"Vaughn") had until April 30, 2014 to serve its responses to Plaintiff Josephina Garcia's (acting
in both capacities) requests for production. See Exhibit "B," a true and correct copy of the Rule
11 Agreement setting that deadline, attached hereto and incorporated by reference as if set forth
verbatim herein. Notably, no mention is made that service be made by 5:00 p.m., nor does the
agreement specify a method of service. As reflected in the attached Exhibit "C," Vaughn's
objections and responses were served April 30, 2014 and were served by certified mail, return
receipt requested. See Exhibit "C," a true and correct copy of Vaughn's Objections and
Responses to Plaintiff Josefina Garcia's First Request for Production, attached hereto and
incorporated by reference as if set forth verbatim herein. Thus, under Texas law, the document
DEFENDANT'S RESPONSE PAGE4
was served in conformity with the Rule 11 agreement. See TEX. R. CIV. P. 2la(b)(l), ("Service
by mail .... shall be complete upon deposit of the document, post-paid and properly addressed, in
the mail. ..."), (c) ("A certificate by .... an attorney of record .... showing service of a notice shall
be prima facie evidence of the fact of service."). Plaintiffs' assertion in this regard is without
merit and could have been resolved with a phone call.
3.1 Plaintiffs next complain Vaughn did not provide BAIBS ranges referencing documents
responsive to each request for production. However, there is no requirement in the Texas Rules
of Civil Procedure to produce documents in such a manner if the documents are produced as they
are kept in the usual course of business. See TEX. R. C!V. P. 196.3(c). The Defendants have
consistently produced documents in this matter as they were kept by the individual defendants in
the usual course of business. Plaintiffs' complain in this regard is without merit. This is another
example of a dispute that could have been cured with a phone call prior to expending the effort to
draft and file a motion to compel.
3.2 Plaintiffs next assert Vaughn failed to provide "Blueprints and plans of Kyle Field."
Plaintiffs fail to mention the full scope of this request for production. The actual request was for
"All documents and plans of the Kyle Field renovation project, including but not limited to blue
prints, specifications, structural general notes and structural plan sheets, defining demolition
work to be performed on the existing northeast pedestrian ramp." This poorly written request
seems to ask for all design documents involved in the Kyle Field Renovation Project, both in
construction and demolition. The project includes complete demolition of the west stands and
construction of new suites, stands, and a new press area. It also included demolition of G. Rolle
White Coliseum and the lower seating bowl on the east side of the stadium. The bowl would be
replaced with new seats and suites. Additionally, a new south end set of stands to seat up to
DEFENDANT'S RESPONSE PAGES
19,000 people, a locker room, and other facilities is to be constructed. Other construction
involving the north end includes adding of seating. Finally, the playing field has been lowered
seven (7) feet and moved eighteen (18) feet to the south. Defendants objected to the overbreadth
of the request, the vagueness of the request, the request constituting an impermissible fishing
expedition, and the nature of the request seeking irrelevant information. Nonetheless, Vaughn
directed Plaintiffs to documents already produced. Indeed, responsive documents have been
produced in this matter, although by Manhattan I Vaughn, not Vaughn.
3.3 Plaintiffs next assert Vaughn failed to provide documents relating to the scope of
demolition of "concrete structure being worked on immediately prior to subject collapse."
Again, Plaintiffs' Motion does not reflect the scope of the actual request made. Request For
Production 25 requests "All documents, details, or sketches addressing the specific dimensions
and scope of the demolition of the concrete structure being worked on by Angel Garcia
immediately prior to the subject collapse that led to Mr. Garcia's fall." At the time of the subject
incident, Mr. Garcia was working on a multi-story pedestrian ramp. Further, no collapse
occurred that led to Mr. Garcia's fall. Mr. Garcia was killed when the skid-steer he was
operating fell off the ramp and landed on the ground. Defendant lodged numerous objections to
the request. Finally, Defendant stated that responsive documents, if any, would be produced. In
fact, responsive documents have been produced in this matter.
3.4 Plaintiffs next assert Vaughn failed to provide documents reflecting "observations by any
party or person regarding the nature of spalling (or failure) of existing concrete members of the
northeast spiral pedestrian ramp during demolition activities prior to the time of the subject
incident. This is another request unlimited in time and scope. Defendant also stated that
DEFENDANT'S REsPONSE PAGE6
responsive documents, if any, would be produced. To date, Defendant has found no discoverable
documents responsive to this request.
3.5 Plaintiffs next assert Vaughn failed to provide documents and plans "for temporary
shoring to be utilized during the demolition work of structural concrete of the NE pedestrian ram,
at the locations [sic] of the subject incident. This is yet another request unlimited in time and
scope. It also assumes that temporary shoring was used and/or needed for the demolition work.
Again, Defendant stated it would produce responsive documents, if any. Subsequently,
Defendant has produced documents responsive to this request.
3.6 Plaintiffs next assert Vaughn failed to provide "all documents reflecting statements by
employees of MVJV or any other party on the Kyle Field renovation project site describing the
incident in question. Defendant objected to this request as it was duplicative of Plaintiffs
previously-served Requests for Disclosure, which were included in Plaintiffs' Original Petition,
which rendered this request for production improper discovery. Should Plaintiffs wish to see
statements, they may find them in Defendants' responses to the various Requests for Disclosure
in this matter.
IV.
Manhattan
4.0 As with Vaughn, Plaintiffs assert that Manhattan Construction Company (hereinafter
"Manhattan") failed to file its discovery responses on time. These discovery requests were also
the subject of the aforementioned Rule 11 agreement, as discussed earlier in the response. See
Exhibit "D," a true and correct copy of Manhattan's Objections and Responses to Plaintiff
Josefina Garcia's First Request for Production, attached hereto and incorporated by reference as
DEFENDANT'S RESPONSE PAGE7
if set forth verbatim herein. Exhibit "D" demonstrates it was served in conformity the Rule 11
agreement and the Texas Rules of Civil Procedure.
4.1 Also as with Vaughn, Plaintiffs first assert that Manhattan Construction Company
(hereinafter "Manhattan") failed to provide BATES ranges for the documents responsive to each
request for production. As noted above, the Rules permit the production of documents in the
manner in which they were kept. See TEX. R. C1v. P. 196.3(c). This assertion is without merit
and its consideration does not promote judicial economy, to put it mildly.
4.2 Plaintiffs repeat another complaint addressed above when they assert that Manhattan did
not produce "blueprints and plans of Kyle Field." Again, the actual request for production is
much broader than Plaintiff's would have the Court believe. The actual request for production
is: "All documents and plans of the Kyle Field renovation project, including but not limited to
blue prints, specification, structural general notes and structural plan sheets, defining demolition
work to be performed on the existing northeast pedestrian ramp." As discussed above, this
request is overly broad in time and scope, and is objectionable on a variety of levels. Defendant
has lodged several objections to this request. Nonetheless, Defendant did not fail to respond; it
directed Plaintiff to documents that have been produced elsewhere in discovery. Numerous sets
of design plans and drawings have already been produced in this matter, most particularly by
Manhattan I Vaughn.
4.3 Plaintiffs contend Manhattan did not provide all "contracts issued by Manhattan
Construction related to structural demolition performed on the northeast pedestrian ramp."
Manhattan did not issue any contracts related to structural demolition, as it was not the
construction manager-at-risk for this project. Manhattan I Vaughn was the construction manager
at-risk for this project. Therefore, Manhattan would not have any responsive documents.
DEFENDANT'S REsPONSE PAGES
4.4 Plaintiffs combine complaints regarding two requests for production concerning
"engineering surveys related to the demolition of structural concrete for Kyle Field." Plaintiffs
further assert that these engineering surveys are required by an OSHA regulation. Manhattan is
not acting as a demolition entity on this project, and has no documents responsive to this request.
4.5 Plaintiffs next complain that Manhattan failed to produce two safety reports referred to in
other discovery documents. Plaintiffs cite in their motion, but not in their discovery responses,
reports discussed in Manhattan I Vaughn's site specific safety manual for this project. Had
Plaintiffs read the manual a little closer, they may have realized that the reports discussed on the
cited pages pertain to incidents involving Manhattan I Vaughn personnel, not employees of
subcontractors. The employer of the injured employee is required to make the accident and
injury report. In this case, Lindamood Demolition employed Mr. Garcia, and they made a first
report that has been produced in this matter. In fact, Plaintiffs refer to the report within their
Motion to Compel. Plaintiffs have the documents they are looking for.
v.
Manhattan I Vaughu
5.0 As with Vaughn, Plaintiffs assert Manhattan I Vaughn (hereinafter "Manhattan I
Vaughn") failed to file its discovery responses on time. These discovery requests were also the
subject of the aforementioned Rule 11 agreement, as mentioned earlier in the response. See
Exhibits "E" and "F," true and correct copies of Manhattan I Vaughn's Objections and
Responses to Plaintiff Josefina Garcia's First Request for Production and First Set of
Interrogatories, respectively, both attached hereto and incorporated by reference as if set forth
verbatim herein. Additionally, both documents demonstrate that they were timely served under
the Rule 11 agreement and the Texas Rules of Civil Procedure.
DEFENDANT'S REsPONSE PAGE9
5.1 Plaintiffs lodge yet another complaint about the lack of designation of BATES ranges for
documents responsive to their individual requests for production. As discussed above,
Defendants can and have produced documents as kept in the ordinary course of business. See
TEX. R. C1v. P. 196.3(c). Accordingly, this complaint is without merit.
5.2 Plaintiffs yet again complain regarding the alleged lack of production of "documents and
plans of Kyle Field," including information pertaining to demolition work to be performed on the
northeast pedestrian ramp. This is, yet again, a request for all design documents for the Kyle
Field Redevelopment project, which is obviously unlimited in time and scope. Defendant
presented its objections to this request, and again directed Plaintiff to production made in this
matter. Multiple sets of drawings, including drawings related to demolition, have been produced
in this matter.
5.3 Plaintiffs again seek project specifications for demolition work, this time allegedly
referenced in two previously-produced documents. This request was also included in RFP 13,
discussed above, including Defendant's objections. However, the two previously-produced
documents cited by Plaintiff in the motion are not included in the request, nor are they attached
to the motion. Nonetheless, Defendant, after making its objections, again referred Plaintiffs to
production in this matter. The two pages cited by Plaintiffs are actually portions of the drawing
list made part of the contract documents in this matter. As previously noted, sets of demolition
drawings have already been produced in this matter.
5.4 Plaintiffs seek "actual" project schedule for demolition activities rather than the "draft"
schedule provided. This request does not specify what schedule Plaintiffs are looking for, such
as the overall project schedule for all trades through 2015 maintained by Manhattan I Vaughn or
DEFENDANT'S REsPONSE PAGE 10
the demolition schedule prepared by Lindamood. Lindamood's demolition schedule has been
produced repeatedly in this matter, and thus satisfied Plaintiffs' request.
5.5 Plaintiffs again seek "engineering surveys related to the demolition of structural concrete
of Kyle Field." Plaintiffs again combine two requests into one complaint. Plaintiffs contend
these surveys are required by OSHA "standard" I 926.850(a). Actually, OSHA produces
regulations, not standards. Texas law supplies duties and standards of care, not OSHA
regulations. See Abarca v. Scott Morgan Residential, Inc., 305 S.W.3d 110, 128 (Tex. App.-
Houston [1 ' 1 Dist.] 2009, pet. denied) ("Texas courts have also held that the common law duties
imposed by state law are not expanded by OSHA regulations."). In this phase of the project, no
separate documents entitled "Engineering Surveys" have been created or received by the
Defendants. The demolition plans signed and sealed by structural engineer of record Rogers
Moore satisfy the requirements of engineering surveys, and have already been produced in this
matter.
5.6 Plaintiffs next seek "all documents, details, or sketches addressing specific dimensions
and scope of demolition." Plaintiffs also seek BIM models, images, and data be used for
construction. However, no explicit request for BIM material was made, and as this is electronic
material, the request does not conform to Rule 196.4 regarding the production of electronic data,
it may be ignored as improper discovery. See TEX. R. CIV. P. 196.4 (regarding discovery of
electronic materials). Responsive, non-electronic documents responsive to this request have
already been produced in this matter.
5.7 Plaintiffs next assert Manhattan I Vaughn failed "to identify all permits obtained for the
demolition work performed at Kyle Field." Rather than complain about a response to a request
for production, this is a complaint regarding an interrogatory answer. And, after lodging proper
DEFENDANT'S REsPONSE PAGE 11
objections, Manhattan fully answered the interrogatory. It stated it had none, and referred
Plaintiffs to the answers provided by Lindamood Demolition, Inc., the demolition subcontractor
for the project. The request also assumes that demolition permits were required for this project.
Plaintiffs cite no legal basis whereby demolition permits would be required for this project.
VI.
Texas Cutting & Coring LP
6.0 Plaintiffs' allegation that Texas Cutting & Coring, LP's discovery responses were late is
without a basis in fact, including the supposed deadline Texas Cutting & Coring, LP was to have
answered discovery. Although Plaintiffs assert Texas Cutting & Coring, LP was to have
answered by April 30, 2014, Texas Cutting & Coring, LP was not sued until Plaintiff filed his
First Amended Petition on April 17, 2014. Even if the new petition was served on the same day
it was filed, and there was discovery included with the petition, the soonest Defendant would
have to answer would be fifty days after the dates of service, thus making discovery due at the
earliest June 6. 2014. Nonetheless Texas Cutting & Coring, LP timely answered the request for
disclosure attached to Plaintiffs petition and all subsequent discovery served upon it. See
Exhibit "G," a true and correct copy of Texas Cutting & Coring, LP's response to Plaintiffs
request for disclosure, attached hereto and incorporated by reference as if set forth verbatim
herein. Plaintiffs' assertion in this regard is wholly without merit.
VII.
Lindamood
7.0 As with the previous defendant, Plaintiffs assert that Lindamood Demolition, Inc.
(hereinafter "Lindamood") failed to file its discovery responses on time. These discovery
requests were also the subject of the aforementioned Rule 11 agreement, as mentioned earlier in
DEFENDANT'S RESPONSE PAGE 12
the response. As with all of the other defendants, Lindamood timely answered this discovery.
See Exhibits "H" and "I," true and correct copies ofLindamood's Objections and Responses to
Plaintiffs Josefina Garcia's First Request for Production and Interrogatories, attached hereto and
incorporated by reference as if set forth verbatim.
7.1 Plaintiffs complain Lindamood did not "provide any of the requested information
regarding past "OSHA violations. Actually, Interrogatory No. 7 requested all "violations,
investigations, citations, warning letters, or reports involving Lindamood for the past ten years
regarding: falls, deaths, or the improper on-site operation of construction vehicles, including but
not limited to skid steer loaders or demolition." Of course, the interrogatory assumes there are
responsive documents. However, once Defendant made its proper objections to the request,
Defendant directed Plaintiff to previously-made production. However, as written, Lindamood
has no documents responsive to this request, as Lindamood understands the request.
7.2 Plaintiffs next complain that Plaintiffs failed to "identify all remedial measures it took
after the subject incident." Defendant again objected to this Interrogatory, which is Interrogatory
No. 18, as exceeding the number of permissible interrogatories, and lodged other objections to
this interrogatory. Further, this interrogatory is so poorly written it is impossible to determine
what information it seeks. Without clarification, Defendant is unable to provide any answer to
the interrogatory.
7.3 Plaintiffs again complain that a defendant "failed to identify all permits obtained for the
demolition work performed at Kyle Field. Defendant objected again that Plaintiffs had exceeded
the maximum amount of interrogatories. Defendant made additional objections to the request as
well. However, subject to those objections, Defendant answered it had no documents responsive
DEFENDANT'S RESPONSE PAGE 13
to this interrogatory. As stated previously, Plaintiffs assume, without a cited basis, that
demolition permits were required for this project.
7.4 Plaintiffs complain Lindamood failed to identify "any workers employed by Defendant
who were injured on [the] Kyle Field project since the date of the subject incident. Plaintiffs'
assertion is incorrect in several respects. First, the interrogatory as written asks for the identity
of every worker injured on the job since the Kyle Field Renovation project began, not just
Defendant's. Obviously, Defendant cannot know the identity of everyone who may have been
hurt on the project. Second, after making proper objections, Defendant identified Mr. Garcia as
the only person it knew of as having being hurt during the Project. Plaintiff incorrectly asserts
Defendant identified no one in its answer.
7.5 Plaintiffs complain the "List of Witnesses" were not included with the Employer's First
Report of Injury or otherwise produced. However, Plaintiff does not indicate which Request for
production this document would have been responsive to. Further, as has been shown
throughout this response, Plaintiff has not shown a great inclination to search through
Defendant's voluminous document production in this matter to find responsive documents. The
document in question is a copy of the attendance sheet for the morning JSA with an "X" marking
the identity of the witness. This document can be found at LMD 000755 and was part of a
supplementation to discovery.
7.6 Plaintiffs contend "contract documents" were not included with Defendant's subcontract
with Manhattan I Vaughn, but do not describe what documents they believe are missing. Plaintiff
also again fails to identify which request for production this complaint pertains to. These
deficiencies make it impossible to respond to this complaint.
DEeENDANT'S RESPONSE PAGE 14
7.7 Plaintiffs next contend the written statement of Daniel Burge is incomplete, but fail to
describe how it is incomplete. Plaintiffs also again fail to identify a request for production to
which this complaint pertains. Without this information, it is impossible to respond to this
complaint.
7.8 Plaintiffs continue their quest for engineering surveys related to demolition and the
identity of persons involved in the surveying for the demolition. At least in this request, the
Plaintiffs identify specific requests for production that purportedly sought the complained-of
documents, although now three different requests have been compressed into one complaint. As
indicated herein, the signed and stamped demolition plans prepared by structural engineer of
record Rogers Moore serve as the engineering surveys for this phase of the project.
7.9 Plaintiffs end their complaints with yet another repeated complaint. This time, it is
allegedly missing incident reports, or portions thereof. The actual request, RFP 40, is much
broader. It seeks "All reports of the incident made by any party or person." This is a reference
to reports discussed in Lindamood's safety plan. However, because of the nature of the incident
and the immediate investigation of the incident by several governmental agencies and counsel
for Lindamood, Lindamood performed no accident investigation on its own. Accordingly, it has
no documents responsive to this request.
VIII.
Prayer
8.1 For the foregoing reasons, Defendants J.T. Vaughn Construction, LLC, d/b/a Vaughn
Construction, Manhattan I Vaughn, Manhattan Construction Co., Inc., Texas Cutting & Coring,
LP, and Lindamood Demolition, Inc. ask the Court to dismiss deny Plaintiffs Motion, and for all
DEFENDANT'S RESPONSE PAGE 15
other relief Defendants may show themselves entitled to, whether individually or collectively,
and whether in law or in equity.
Respectfully submitted,
THE MILLER LAW FIRM
Isl Clark S. Butler
MICHAEL A. MILLER
State Bar No. 14100650
mmiller@tmlfpc.com
CLARKS. BUTLER
State Bar No. 00793437
cbutler@tmlfoc.com
Turtle Creek Centre
3811 Turtle Creek Blvd., Ste 1950
Dallas, Texas 75219
(469) 916-2552 telephone
(469) 916-2555 facsimile
COUNSEL FOR DEFENDANTS J. T.
VAUGHN CONSTRUCTION, LLC, dlbla
VAUGHN CONSTRUCTION, MANHATTAN
CONSTRUCTION CO., INC., MANHATTAN I
VAUGHN, TEXAS CUTTING & CORING, LP,
AND LINDAMOOD DEMOLITION, INC.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been
forwarded to all counsel of record on this 31st day ofJune, 2014:
Via E-Filing
Jason A. Gibson
The Gibson Law Firm
440 Louisiana, Suite 2050
Houston, Texas 77002
Counsel for Plaintiffs
Isl Clark S. Butler
CLARKS. BUTLER
DEFENDANT'S RESPONSE PAGE 16
Page 4
iDepos Prepared for dscott@tmlfpc.com
1 P R 0 C E E D I NGS
2 (Carol Ramirez sworn as interpreter.)
3 (The oath was administered.)
4 MR. BUTLER: Just a little housekeeping
5 first. While prepping for this depo, I noticed that
6 back in April you guys sent us some- responses to
7 interrogatories that are not only not verified but
a they're not signed by y'all, so I'll bring .that to your
9 attention.
10 MR. SNEED: Okay.
11 MR. BUTLER: Short of filing a motion to
12 compel ahead of time, so just want to put that on the
13 record, bring it to your attention. Now I'll proceed
14 with the depo.
15 MR. SNEED: Thanks for bringing that to my
16 attention.
17 MR. BUTLER: That was just a legal
18 document that there was a technicality I wanted to bring
19 to their attention.
20 ORBELINDA HERRERA,
21 having been first duly sworn, testified as follows:
22 EXAMINATION
23 BY MR. BUTLER:
24 Q. Would you please state your name.
25 L~~~A~·~---O~r~b~e~l~in~d~a.:__H~e.:__r~r~er~a.:__·~~~~~~~~~~-4....,~I::!:!'.....
https://www.my.pdf-it.com/idepos/
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Ten MILLER LAW.FIRM
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4. Plaintitts First Request for Pkiductlon lo Defendant. Manh11Rlft GonsQ'Uoti~n· Ca.1
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7. Plalnttrri Fil~ Set of lil_tcrrou1('lrl6f. IQ Defendant, Liriditri'toocl Dt.molili~. ~o.,
I. PlninlltrS Firtt R.e(\uest for Produ~tfon tCJ DefendlD'lt. _Lindamood DemGiiti(;in. Inc.;
9; PJainun·s First Set of JntorrQ1at(lrlos 10 D~&!ndant, 'fe1$ Cutting 8! Gorlng Group,
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slltned letter"' wu miiy lilo willi the Coun pursurun 10- Rule 11, Texas Rules of Ch1 il Proccchll't.
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THE GIBSON LAV FlkH P.001
G THE C31BSON LAW FIRM
FAX COVER SHEET
TO: Michael A. Miiier FAX: (469) 918-2555
The Miiier Lew Firm
DATE: Apol 2, 2014
FROM: Jason A. Gibtonlss
WE ARE SENDING (3) PAGES (including this page).
RE: causo No. 2013-16550; Joaaflne Garcia, Individually, otal v. J. T. Vaughn
Construotion, LLC dMa Veughn Construotion. ot et In the so'" Judicial Plslriet
Court, Harris County, Texaa
MESSAGE: Please see attached:
1) Gigne<l Rule 11 Dated March a1, 2014,
If you do not receive the entire FAX, or are not receivin9 lt clearly, please
call us at (713) 650-1010.
-----------··---·····
TH! LV..tc CeNT"e, 440LDlH•IANAt SUITC 240Q, HttUCITCINt i'X ?'70015
PHI,.,. 131 6'50•1010 v~x: (71S1 t!i&D~l-011 TCIU.. l'Rliltl l•tt6G•UAC?iFtRM (!124•34761
WWW,J"AG•L..AWJ."I Fi M.C-tlM
CAUSE NO. 2013·76550
JOSEFINA GA.RCIA, lndtvlduaUy and as § IN THE DISTRICT COURT
Heh• to the Estate of ANGEL GARCIA §
(Dcceiilcd); and ORBELINDA HERRERA, §
As Next Friend of ASHLEY GARCIA and §
BRIAN GARCIA (Minors), §
§
Plaintiffs, §
§
vs. § HARlUS COUNTY, TEXAS,
§
J.T. VAUGHN CONSTRUCTION, LLC, §
d/b/a VAUGHN CONSTRUCTION, §
MANHAT1'AN CONSTRUCTION CO., !NC., §
MANiiATTAN I VAUGHN, JVP, §
TEXAS CURB CUT, INC., TEXAS CUTTING §
& CORING GROUP, INC., and LINDAMOOD §
DEMO LITTON, INC., §
§
Defendants. § soTH JUDICIAL DISTRICT
DEFENDANT J. T.VAUGHN CQNSTRUCTION, LLC,d/b/a VAUGHN
CONSTRUCTION'S OB.JEC'fJONS AND RESPONSES TOPLA.IN'l'JFFS JOSEFINA.
GARCIA, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF
ANGEL GARCIA'S FIRST REQUEST FOR PRODUCTION
TO: PlalntHfs, Josephina Garcia, Individually and as Heir to the Estate of Angel
Garel11, by and tbrm1gh her counsel of record Jason A. Gibson, Andrew
Smith, Clifford D. Peel ii of The Gibson Law Firm, 2050 The Lyric CentR,
440 Louisiana Jn Ho11sto11, Texas 77002.
Defendant J. T. Vaughn Construction, LLC, d/b/a Vaughn Construction
(hereinafter "Vaughn" or "Defendant'') serves its Objections and Responses to Plaintiffs,
Josephina Carola, Individually and as Heir to the Estate of Angel Garcia First Requests
for Production, pursuant lo Rules 192, 193 and 196 of the Texas Rules of Civil
Procedure.
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PEfRNDANt J. T. VAUGHNCON:ITRUCTION,LLC, PfB/A VAUGHN CONSTRUCTION'S OBJECTIONS AND
llESPONSES TO PLAINTIFFS JOSEFINA GARCIA, INDIVIDUALLY AND AS REPRESENTATIV& OFTllE
ltSTATK OF ANGEL CARCl.\'S FIRST REQUEST FOR PRODUCTION P. J 1
DEFENDANT'S OBJECTIONS AND RESPONSES TO
PLAINTIFF'S FIRST REQUEST FOR PRODUCTION
REQUE§T FOR PR®UCTION NO. 1: All records documenting Angel Garcia's
cmploymenl with Vaughn Construction, including but not limited to personnel files, work
history, time logs, payment records and training logs.
RESPONSE: Defendant objects to this request, as written, as overly broad and .lacks the
degree ofspecificity required under theTexas Rules of Civil Proc~tire.
Subject to and wilhout waiving the foregoing objections, none as Angel 011reia is not employed
by Vaughn Construction,
REQUEST FOR PROPUCTIQN NO. 2; All contraGts or other Written agreements.entere<I
between Vmighn Construction, Texas A & M or any defendW1t in 1his case, related to U1e Kyle
Field renovation project.
RESPONSE: Defendant objects to this request, as written, as overly broad as to time and
scope, and lacks the degree ofspecificity required under the Texas Rules of Civil Proced.ure and
potentially seeks infotillation not reasonably calculated tb lead to the discovery of admissible
evidence.
Subject to and without waiving !he !lforementloried objections, otherwise see production.
REQVEST FOR PROJ>UCTION NO. 3; All correspondence between Vaughn
Construction, Texas A & Mor any other entity or defendant in this case, related to the Kyle Field
renovation project, including but not limited to correspondence related to contracts or
agreements for the performance of activities related to construction, construction management,
accident prevention or safety at the worksite.
RESPONSE: Defendant objects to this request, as written, !Ill overly broad as to t.ime and
scope, and lacks the degree of specificity required under the Texas Rules of Civil Procedure.
Subject lo and without waiving the foregoing obj¢ctlons, see production, ir any.
REQUEST FOR PRODUCTION NQ. 4; All. documents related to, documenlinQ or
describing the scope of work to be performed by Vaughn Construction.
RESPONSE: Defendant objects to this request ns overly. brpad as lo lime and scope, and
lacks the degree of specificity required under the Texas Rules of Civil Procedure.
Subject to and without waiving the liforementio11ed objections, see production.
DEFENDANT J, T. VAUGHN CONSffiUCflON, LLC, D/8/A VAUGllN CONSTRUCTION'S OBJECTIONS AND
RESPONSES TO Pl.AINTIFFSJDSEFINA GARCIA,INDIVIOUAL[,V AND AS REPRESENTATIVE OF THE
ESTATE OF ANCEL GARCIA'S FIRST REQUEST FOR PRODUCTION P. ( 2
REQUEST FOR PRODUCTION NO. S: All d.ocuments related lo or discussing.demolition
work, purchase of materials, supplies, provision of equipment, provision of labor, safety,
insurance and workers' compensation, as it applies to any defendant in this oase.
RESPONSE: Defendant.objects to this request as vague, overly broad as to time and scope,
and lacks the degree of$pecificity required under the Texas Rules of Civil Procedure. Defendant
further objects to tlte extent the request seeks inforlJlation neither relevant nor reasonable
calculated to lead to the .discovery of admissible evidence.
Defendant further objects ti> "all documcn!S" to the extent such request constitutes an
impermissible "iishing expedition." Loftin v. Martin, 176 s.W.2d 145, 148 (Tex. 1989).
Subject to and without waiving the foregoing objections, see production, if ariy
REQUESTFORPROOUCTION NO. 6; All .documents and correspon<ience related lo the
progress of the Kyle Field renovation project between or among the parties, including Vaughn
Construction, tindamood, or any other party with responsibilities on the Kyle Field renovation
project site.
RE$PONSE: Defendant o_bjects to this reque8t as vague, overly broad. as tp time and si:ope,
and lacks the degree of specificity required under the Texas Rules of Civil Procedure. Defendant
further ol>jects to the extent the request sl)Cks information neither relevant nor reasonable
calculated toJead to the discovery of admissible evidence.
Defendant further objects to "all <iocuments and correspondence" to the extent such request
constitutes an impermissible "fishing expedition." Loftin v. Martin, 776 S.W.2d 145, 148 (Tex.
1989).
Subject to and without waivfog the foregoing objections, see production, If any.
REQUEST FOR PRODUCTION NO. 7; All notes and documents In possession of Vaughn
C.onstructlon regarding inspections performed by OSHA on the Kyle Field renovation project
RESPONSE: Defendant objects to this request is overly broad as to time and scope, ond
lacks the degree of specificity required under the TC1Cas Rules of Civil Procedu!<l, Defendant
further objects to the extent such request seeks Information that is protected by the attomey-
client I attorney work product privileges. Sec 192.5, Texas Rules of Civil Procedure, and Rule
503, Texas Rules of Evidence.
Defendant further objects to "all documents" to the extent such request constitutes an
hnpennissible "flshlngexpedition." Loftin v. Martin, 776 S.W.2d 145, 148 (Tex. 1989).
Subject to and without waiving the foregoing objections, Defendant is not in possession of.
discoverable documents responsive to this req11est.
DEPENDANT J, T. VAUGHN CONSTRUCTION, Ll.C, D/B/,\ VAUGHN CONSTRUCTfON'S OBJECTIONS AND
RESPONSESTOPJ.AINTIFFS JOSEFINA GARC!A, INDJVIDUAf,f;V AND AS REl'RKS~NTATiVE OF Tim
ESTA TE OF ANGEL GARCIA'S ~IRBT REQU'EST FOR PRODUCTION P. I3
REQUEST FOR PRODUCTlON NO. 81 All documents related to inspections done on the
Kyle Field renovation project, including but not limited to the area where Angel Garcia was
working and killed.
RESPONSE: Defendant objects to this request is vague and overiy !:>road as to time and
scope, and lacks the degree of specificity required under the Texas Rules of Civil Procedure.
Defendant further objects to the extent the request seeks information protected by the work
product and attorney client privilege.
Defendant further objects to "illl 4ocum¢nts" to the extent such request constitutes an
impermissible "llshlngexpedltion." Loftin v. Martin, 776 S.W.2d 145, 148 (Tex. 1989).
REQUEST FOR PRODUCTION NO.!}; All minutes of meetings (or other similar
document) at which planning, risk management, engineering, demolition or safety was discussed.
RESPONSE: Defendant objects to this request is vague and overly broad as to litne and
scope, and lacks the degree of specificity rQ(juired under the Texas Rules of Civil Procedure.
Defendant further objects to this request on the bl!sis that it seeks production of documentation
that is neither relevant norreasonably calculated to lead to the discovery of admissible evidence
in !his.case.
Defendant further objects to "all minutes" to the e~tont sµch request constitute~ an impermissible
"fishinl! expedition,• Loftin v, Martin, 776 s,W.2d 145, 148 (Tel<. 1989).
Subject to and without waiving the foregoing objections, sec production, if any.
BEQUE§T FOR PRQDUCTIQN NO. 10; All recordings or videos of the work being
perfonned on the Kyle Field renovation project, including audio o.r video footage of the incident
in qul).~tion.
8ESPONSE1 Dcfendaill objects to this request as.overly broad .as to time and scope.
Snbjecl to and wilho\lt waiving the aforementioned objections, see productimt, if any.
REQUEST FOR PRODUC'UQN NO. 11; All do~'Uments idelitifying safety issues or
concerns as it pertains to the Kyle Field renovation, including but not limited to the demolition
process and the work being perform!ld by Angel Garcia and his employer.
RESPONSE: Defendant objects to this req11est is vague a11d overly broad as lo time and
scope, and lacks the degree ofspeciticity required under the Texas Rules of Civil Procedure.
Defendant further objects to this request on the basis that It seeks production of docun1en1ation
that is neither relevant nor rellSonably calculated to lead io the discovery of l\Qmissible evidence
in this case.
DEFi!flDANT J, T. VAUGHN C!lN!ITRUCTION, LLC, D{D/A VAUGHN CONSTRUCTION'S OBJECTIONS AND
RESPONSES TO PLi\INTIFl'S JOSKFINA CARCIA, INDtVIPllALLY AND l\S REPRESENTATIVE OF TllE
FJITATE OF·ANGEL CARCIA 'S FIRST REQUEST FOR PROD\ICTION P. 14
Defendant l.\Jrther objects to "all documents to the extent such request constitutes an
impennisslble "fishing
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