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§ § § § § § § § § IN THE DISTRICT COURT
DALLAS COUNTY, TEXAS
44th JUDICIAL DISTRICT
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL DISCOVERY
TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW the Defendant, AVI ADELMAN (“Defendant”), by and through the undersigned counsel, and files this response to Plaintiff’s Motion to Compel Discovery. I. BACKGROUND 1. Plaintiff filed this suit against Defendant on September 12, 2012, which at its core involves Defendant’s purchase and alleged use of a domain name, www.melissakingston.com. 2. Plaintiff served expedited discovery requests upon Defendant, to which Defendant responded within five days from the date of service. 3. Defendant served discovery requests upon Plaintiff on September 21, 2012. Plaintiff decided the expedited discovery order no longer applied, but instead the traditional discovery deadlines applied. Nevertheless, even though it’s been more than 35 days since discovery was served, Plaintiff has not provided a single response or objection. 4. On October 15, 2012, Defendant filed an Anti-SLAPP Motion to Dismiss pursuant to TEX. CIV. PRAC. & REM. CODE § 27.003. A hearing on the motion is set for November 26, 2012. 5. Since the filing of the Anti-SLAPP Motion, the parties have attempted to schedule depositions. Although Plaintiff originally agreed to be deposed on the same day as Plaintiff, -1-
Plaintiff’s counsel has since refused to allow both depositions to take place at the same time, claiming there is a right for Plaintiff to “digest” Defendant’s deposition responses prior to being deposed herself – all in a thinly veiled attempt to increase travel and litigation costs for Defendant. Further, Defendant has sought to depose Plaintiff’s husband, Philip Kingston, but Mr. Kingston refuses to voluntarily submit to a deposition, and Plaintiff and her counsel have refused to aid in coordinating Mr. Kingston’s deposition. So, Plaintiff has filed a motion to compel discovery and seeks an award of attorney fees. II. ARGUMENT & AUTHORITIES 6. Pursuant to TEX. CIV. PRAC. & REM. CODE § 27.003(c), upon the filing of an AntiSLAPP Motion to Dismiss, “…all discovery in the legal action is suspended until the court has ruled on the motion…” 7. Pursuant to TEX. CIV. PRAC. & REM. CODE § 27.006(b), “[o]n a motion by a party or on the court's own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion.” (emphasis added). No such motion has been filed, and the Court has rendered no order lifting the suspension of discovery. 8. The plain language of the statute provides that, absent a court order, all discovery is suspended, and Defendant has no obligation to voluntarily submit to depositions or conduct discovery absent a court order. Since discovery is suspended by virtue of the statute, Defendant has done nothing in violation of the law or rules in allowing the suspension of discovery to remain in effect. The Court should not award Plaintiff attorney’s fees for Defendant’s actions wholly in compliance and permitted by statute.
9. Further, Plaintiff’s motion fails to state any good cause why discovery should be permitted prior to the Court’s consideration of the Anti-SLAPP Motion, and further fails to identify what “specified and limited” topics on which she feels discovery is necessary. 10. Absent a showing of good cause, Plaintiff is not entitled to conduct discovery until the Anti-SLAPP Motion is considered by the Court. Or, even if the Court does permit some discovery, the scope of the discovery must be “specified and limited,” and Plaintiff is not entitled to unrestricted discovery right now. 11. Plaintiff has failed to show anything other than a string of emails attempting to schedule depositions. Plaintiff has not made a showing of any good cause, and therefore, her motion should be denied. III. REQUESTED RELIEF 12. Defendant requests the Court deny Plaintiff’s Motion to Compel Discovery, and deny all relief requested therein. 13. Alternatively, if the Court decides to permit discovery, Plaintiff would request the Court clearly specify and limit the scope and topics of discovery to only include those matters essential for the Court’s consideration of the Anti-SLAPP Motion to Dismiss. IV. PRAYER WHEREFORE, Defendant prays the Court grant deny Plaintiff’s motion, grant all relief requested herein, and grant all other relief, at law or equity, specific and general, to which Defendant may show himself to be entitled.
SIGNATURE ON FOLLOWING PAGE
Respectfully submitted, THE NICHOLS LAW FIRM, P.L.L.C.
____________________________________ JUSTIN P. NICHOLS Texas Bar No.: 24081371 106 S. Saint Mary’s Street, Suite 255 San Antonio, Texas 78205 (210) 354-2300 phone (800) 761-5782 facsimile Justin@TheNicholsLawFirm.com ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE I certify a true and correct copy of the foregoing instrument was served upon Plaintiff, via fax to (972) 788-2667, in accordance with Tex. R. Civ. P. 21a on October 30, 2012.
______________________________ JUSTIN P. NICHOLS