# in Re Manhattan Vaughn, JVP > Texas Court of Appeals, 1st District (Houston) · May 19, 2015 URL: https://www.frixlaw.com/law-library/cases/4055344 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** May 19, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4055344 ## Opinion text 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 https ://efile. txcourts.gov/EnvelopeDetails.aspx?envelopeguid=63 87b4a9- fl 2a-4 72d-bf9b-... 12/2912014 Envelope Details Page 2 of2 Please find attached for filing Plaintiffs' Second Amended Petition. Thanks! Status Accepted Accepted Date 2014-12-29 21:52:34 UTC Fees Court Fee $0.00 Service Fee $0.00 Documents Plaintiffs' Second Amended Petition- Lead Document [Orir,;inal] [Transmitted] GARCIA.pdf eService Details Name/Email Firm Service Type Status Served Date/Time Opened Clark S Butler The Miller Law 12/29/2014 EServe Sent Yes cbutler@tmlfpc.com Firm 03:15:01 PM J.J. Knauff The Miller Law EServe Sent Yes Not Opened jknauff@tmlfpc.com Firm JayK Webb The Miller Law 12/29/2014 EServe Sent Yes kwebb@tmlfpc.com Firm 03:13:44PM Johnnie Dillard The Miller Law EServe Sent Yes Not Opened jdillard@tmlfpc.com Firm Michael A. Miller The Miller Law EServe Sent Yes Not Opened mmiller@tmlfpc.com Firm Pamela C Nelson The Miller Law EServe Sent Yes Not Opened pnelson@tmlfpc.com Firm Debra Scott The Miller Law 12/29/2014 EServe Sent Yes dscott@tmlfpc.com Firm 03:20:30PM Robyn Cruze The Miller Law 12/29/2014 EServe Sent Yes rcruze@tmlfpc.com Firm 03:41:21 PM Karen Morgan The Miller Law EServe Sent Yes Not Opened kmorgan@tmlfpc.com Firm JAG E-File 12/29/2014 efile@jag- EServe Sent Yes 03:52:47 PM lawfirm.com https://efile.txcourts.gov/EnvelopeDetails.aspx?envelopeguid=6387b4a9-fl 2a-4 72d-bf9b-... 12/2912014 G THE GIBSON LAW FIRM FAX COVER SHEET TO: Michael A. Miller FAX: (469) 916-2555 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: 1) Plaintiffs' Second Amended Petition If you do not receive the entire FAX, or are not receiving it clearly, please call us at (713) 650-1010. THIS FAX IS INTENDED ONLY FOR USE OF THE ADDRESSEE. THIS INFORMATION IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY AND RETURN TO THE ABOVE ADDRESS BY THE U.S. POSTAL SERVICE. THE LYRIC CENTRE, 440 LOUISIANA, SUITE 2400, HOUSTON, TX 7 7 0 0 2 PH: 1713) 6SCJ·1Cl1CJ FAX: (713) 6SCl•1011 TOLL FREE: 1·S66-.JAGFIRM (524-3476) WWW• .JAG·LAWFI RM.C Cl M ••••••••••••••• -COMM. JOURNAL- ••••••••••••••••••• DATE DEC-29-2014 ••••• TIME 16:30 •••••••• MODE = MEMORY TRANSMISSION START=DEC-29 16:09 END=DEC-29 16:30 FILE N0.=446 STN COMM. STATION NAME/EMAIL ADDRESS/TELEPHONE NO. PAGES DURATION NO. 001 407 1114699162555 000/012 00:03:33 -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 If you do not receive the entire FAX, or are not receiving it clearly, please call us at (713) 650-1010. nus FAX IS INTENDl!.D ONLY FOR USE OF THE ADDRESSEE:. THIS INFORrAA.TlON IS PRNIL..!.Gl!D, CONFIDENT!Al.AND EXEMPT FROM AGCEIVEOTHIS COMMUNICATION lN EAROFI:, PLEAS~ NOTIFY US IMMEOIATGLY ANI) IUTUAN TO TH! ABOW ADDRESS avTHE U.S. PO$TAl.$iRV!Cli, - - - -TH~ - LYRIC --- - - · -··-···---·--·······----- ·-·-· ·--..· - - - - - - CE:NTRE., 440 L.a ... ra1ANA, SUITI!: 24CIO, HOUSTON, IX ??002 PH: 171 3) 6!!D• 101 0 rAlU (7 1 3) 6 liQ•1 Cl\ 1 TQL.\. F'AEEl 1 •B66•JAGF"I RM l524•:3475) WWW,JAfi•l.AWFIRM,COM Jana Thompson From: Jana Thompson Sent: Monday, December 29, 2014 4:28 PM To: jdillard@tmlfpc.com 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 hesitate to contact our office. I've attempted to fax, but for whatever reason it doesn't seem to be going through. Thanks, CiilBl!ICN I.AW Fl~M Jana L. Thompson The Gibson Law Firm 440 Louisiana, Suite 2400 Houston, Texas 77002 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 ./ ' J 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/ 1_1 A.PR-02-2014 14 :04 tflt Gl9SON LA'.ol FIRM Ten MILLER LAW.FIRM MK"'h 31, 2014 t1g F(IS!bnUt!. J•50n A. Gibson AndniwSmilll Cllffocd O, Peel, IT 'l'hc Oibson Law Finn 2050 Tho Lyrio Con~• 440 Louildana Ho11.1tun. 'l'X 77002 Rit CaU,Sd /'lo. 201J.. 16SStJ: Jwrt,f1nu Gattla, 'd al v. J.T. Va~htt Const_ruct/Qn, UC, el 111; 1,, thtt 8~ lJl'itric-t Court of·Rarrl1 County, Ttxas f'll~ No. Dur Ja~n: In- reJpanso to your 11grccmcnt 10 IJ."l.k:nd th4 dcwJllne11 fof Defende.ttts to mpond tn Pln.lnUffi! discov.ory ~\!0$1S, .thl5. w:ill c~n-tirqt-.Plaintiffs -he.vc Jpd 10 q11.tcnd the- time-for DotCndim.ts 10 l'il~ I iocrvi:i th"ir objcGttons. MRliWOt'li. rmd -1'CSiXJ1ucs- tO the lbllowing di$(.('!tt?)' l'eqU«i\$ un1il April ]Q. 1014; 1. l"laindtr~ Pl.Qt S1:t of lntC'iroptoTies to Oot'enda~t To~s Curb-Cui,. lnc.: 2. l'lalntlfrs First }«quest fbr Ptoductl!;)n 10 Defendant, Toxos Cu:Tb·Cui_. lnc.:_ 3. Pbtntitrs Fi~l Sci of ln1ermp1orlc-s_1a 01,,fendant. MarihanM Con.liU11¢tion Co,. l_ne.: 4. Plaintitts First Request for Pkiductlon lo Defendant. Manh11Rlft GonsQ'Uoti~n· Ca.1 111c.) s. ~laiJ)U[f-il Fir81 Set or lntetroaatoritS:-to Oef not ha:tita1o to i:aU. Sin¢Q'c;Jy, Id Mtcl~~l ..f, 1\tffll~r Mlehaol A. ;,jlllot .Cl '. O. Peef1-0 lno®-LowPIM 20101'1lo Lyric Centro 440 l.QU!lion• ~ston, TX 11002 Ph: (11>) 6lCl-lOIO Pox: (713) 6SO.IOl I Cu..,./ jar P/nl/l/fjft Tt>T AL P' , Q',)j 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) GigneUCTION 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 corresponjects 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 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4055344. Public record. Not legal advice.