filing_id,date,doc_type,party,description,doc_type_detail,procedural_posture,chain,outcome,phase,filename,relief_requested,full_text
55,2023-03-29,RSP,Pohl,Response to Amended MSJ,Plaintiffs' Response in Opposition to the Amended Motions for Summary Judgment Filed by the Kassab Defendants,"Filed March 29, 2023 in the 281st Judicial District Court (Judge Weems) by Jean C. Frizzell of Reynolds Frizzell LLP. Responds to Kassab's Amended MSJ (filing #50). Pohl argues the Amended Motion is a disguised motion to reconsider that reiterates the same arguments and evidence denied by the 189th District Court on October 31, 2022. Pohl objects to oral hearing under 281st Court Procedure I(I).",MSJ-4,N/A,Phase 4,2023-03-29_RSP_Pohl-Response-to-Kassab-Amended-MSJ_FILED.pdf,Deny Kassab's Amended Motions for Traditional and No-Evidence Summary Judgment,"3/29/2023 5:09 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 74146534
By: Julia Adkins
Filed: 3/29/2023 5:09 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN OPPOSITION TO THE AMENDED MOTIONS FOR
SUMMARY JUDGMENT FILED BY THE KASsSAB DEFENDANTS
Plaintiffs Michael Pohl and Law Office of Michael A. Pohl (collectively “Pohl”) respond
in opposition to the Amended Motions for Traditional and No-Evidence Summary Judgment (the
“Amended Motion”) filed by Defendants Lance Christopher Kassab and Lance Christopher
Kassab, P.C., d/b/a The Kassab Law Firm (coallectively “Kassab”).
I. INTRODUCTION
The Court should not entertaien motions to reconsider filed under another name, especially
when such a motion fails to makef any statement about why reconsideration is warranted. Despite
its name, the Amended Motiyon does not specify what prior motions it purports to amend. But, in
substance, it seeks recoCnsideration of Kassab’s previous motions for summary judgment that the
189th District Courat denied. Kassab does not explain why those prior rulings were wrong, nor
does he attemptf to explain whether the facts, arguments, or law have changed from the previously
denied mUotions. Kassab has not demonstrated that the Court should reconsider or revisit those
rulings, or that any prior ruling was erroneous. Thus, the Court should deny the Amended Motion.
Pohl also objects to the hearing on Kassab’s Amended Motion. The vast majority of the
Amended Motion is directly copied and pasted from Kassab’s prior motions for traditional and no-
evidence summary judgment that were denied by the 189th District Court. Kassab seeks the same
relief and uses the same arguments as contained in his denied motions. Thus, the Amended Motion
is a motion to “reconsider” with a different title. Under this Court’s procedures, “[a]ll motions to
reconsider are heard by submission only.” Procedure I(I) of the 281st Judicial District Court.
Kassab has not requested reconsideration of the prior summary judgment mkotions—instead
he purports to seek a new ruling on already decided issues. See generally Amelnded Motion. This
failure to request reconsideration alone warrants the Court denying the cAmended Motion. But
even if the Court were to reconsider the prior denials of the summary sjudgment motions, the result
would be no different. The 189th District Court reached the corsrect result, and Kassab’s failure to
explain otherwise is telling. As discussed below, Pohl’s prior briefing on these issues is
dispositive, and Kassab’s limited presentation of new information in the Amended Motion does
not justify a different result.
II. BaACKGROUND
On August 29, 2022, Kassab filed motions for traditional and no-evidence summary
judgment (“Kassab’s Original MSJs”e). Kassab’s No-Evidence MSJ sought judgment on Pohl’s
affirmative claims.1 Kassab’s Trfa f ditional MSJ also sought judgment on Pohl’s claims, as well as
on Kassab’s affirmative defyenses.2 On September 12, 2022, Pohl filed responses to Kassab’s
Original MSJs that demConstrated that summary judgment in Kassab’s favor was not proper.3
Pohl’s Respaonse to Kassab’s No-Evidence MSJ—which attached over 30 exhibits of
relevant evidenfce—demonstrated that there was sufficient evidence to support each element of
Pohl’s afUfirmative claims.4 Pohl’s Response to Kassab’s Traditional MSJ laid out how Kassab
1 See Kassab’s No-Evidence Motion for Summary Judgment, filed Aug. 29, 2022 (“Kassab’s No-Evidence MSJ”).
2 See Kassab’s Traditional Motion for Summary Judgment, filed Aug. 29, 2022 (“Kassab’s Traditional MSJ”).
3 See Pohl’s Response in Opposition to the No Evidence Motions for Summary Judgment Filed by the Kassab
Defendants and the Nicholson Defendants, filed Sept. 12, 2022 (“Pohl’s Response to Kassab’s No-Evidence MSJ”);
Pohl’s Response in Opposition to the Traditional Motions for Summary Judgment Filed by the Kassab Defendants
and the Nicholson Defendants, filed Sept. 12, 2022 (“Pohl’s Response to Kassab’s Traditional MSJ”).
4 See generally Pohl’s Response to Kassab’s No-Evidence MSJ (including the evidence cited therein).
failed to carry his summary judgment burden—Kassab did not show that there were no disputed
material facts, nor did he demonstrate a right to judgment as a matter of law.5 After an oral hearing,
the 189th District Court denied Kassab’s Original MSJs on October 31, 2022.6
On January 4, 2023, Kassab filed his Motion to Reconsider Traditional ankd No-Evidence
Motions for Summary Judgment, in which he asked Judge Craft to reconsidler prior rulings on
Kassab’s Original MSJs.7 Kassab filed this motion and set it for hearingc with the 189th District
Court, despite the fact that this lawsuit had been transferred to this Csourt. In this motion, Kassab
reiterated the same arguments and evidence contained in Kassabs’s Original MSJs—however, that
motion did explicitly request reconsideration of the denial of Kassab’s Original MSJs.8
Without explanation, on February 24, 2023, Kassab filed the Amended Motion. It does
not state what motion(s) it amends. See generally Amended Motion. Like Kassab’s Motion to
Reconsider, that he filed the prior month, Kassaab’s Amended Motion contains the same arguments
and evidence contained in Kassab’s Original MSJs.9 However, Kassab removed references to
reconsideration of Kassab’s Originale MSJs. See id. On its face, the Amended Motion does not
purport to be based on new evidenfce, changes in the law, or new arguments that were not presented
in Kassab’s Original MSJys. See id. However, Kassab’s omission of any discussion of
reconsideration does Cnot change the substance of the Amended Motion. At best, it is an
amendment to Kassab’s prior request for reconsideration of the denial of Kassab’s Original MSJs.
5 See generally Pohl’s Response to Kassab’s Traditional MSJ (including the evidence cited therein).
6 See Court Order, entered Oct. 31, 2022.
7 See Kassab’s Motion to Reconsider Traditional and No-Evidence Motions for Summary Judgment, at 3 (“Kassab
files this Motion to Reconsider to correct the erroneous ruling of the prior judge relating to the Kassab’s Traditional
and No-Evidence Motions for Summary Judgment.”).
8 Compare Kassab’s Motion to Reconsider Traditional and No-Evidence Motions for Summary Judgment, with
Kassab’s No-Evidence MSJ, and Kassab’s Traditional MSJ.
9 Compare Amended Motion, with Kassab’s No-Evidence MSJ, and Kassab’s Traditional MSJ.
III. POHL’S OBJECTION TO KASSAB’S AMENDED MOTION
Pohl objects to Kassab setting the Amended Motion for an oral hearing, as it is almost
identical to and seeks the same relief as Kassab’s Original MSJs that were denied by the 189th
District Court. Thus, the Amended Motion is a motion to “reconsider.” Undker this Court’s
procedures, “[a]ll motions to reconsider are heard by submission only.” Procedlure I(I) of the 281st
Judicial District Court. c
IV. POHL’S INCORPORATION OF PRIOR BRsIEFING
Pohl incorporates fully by reference his prior summary judgment briefing—both the
arguments and the attached evidence—into this response teo Kassab’s Amended Motion. This
includes the following briefing and exhibits:
• Pohl’s Response in Opposition to the No-E n vidence Motions for Summary Judgment Filed
by the Kassab Defendants and the Nichoilson Defendants & Exhibits (filed Sept. 12, 2022).
• Pohl’s Response in Opposition to the Traditional Motions for Summary Judgment Filed
by the Kassab Defendants and the Nicholson Defendants & Exhibits (filed Sept. 12, 2022).
fV. DISCUSSION
All of the issues presented in Kassab’s Amended Motion—whether traditional or no-
evidence arguments for soummary judgment—have been previously ruled on in Pohl’s favor. The
same result is proper lhere, and the Court should deny the Amended Motion.
Kassab’si no-evidence summary judgment arguments fail because Pohl has previously
provided sunfficient evidence of every element of his claims in Pohl’s Response to Kassab’s No-
Evidence MSJ. Because this addressed every element of Pohl’s claims, a subsequent no-evidence
motion makes no sense—the same showing of evidence defeats such a challenge. At best,
subsequent developments might give rise to disputed issues of material fact, but such issues
preclude summary judgment in their own right.
Kassab’s traditional summary judgment arguments fare no better. Pohl’s Response to
Kassab’s Traditional MSJ raised issues of disputed material facts or exposed flaws in Kassab’s
legal arguments that precluded summary judgment in Kassab’s favor. Kassab asserts the same
flawed arguments in his Amended Motion. Once there are disputed issues of mkaterial fact that
prevent summary judgment on an issue, additional evidence on that disputed flactual issue makes
no difference in a summary judgment analysis. The five new exhibits (cout of 65 exhibits total)
attached to Kassab’s Amended Motion, at best, provide additional stestimony on disputed facts.
The Court should reject Kassab’s attempt to seek reconsiderastion under a different name and
should deny Kassab’s Amended Motion.
A. Kassab is not entitled to no-evidence summary judgment.
The 189th District Court made the right decision when it denied Kassab’s No-Evidence
MSJ. The Court should deny Kassab’s Amended Motion outright because, as was shown through
his prior briefing, Pohl has come forward with sufficient evidence to support each element of his
claims.10 Nothing has changed sincee Kassab’s No-Evidence MSJ was denied, and nothing in
Kassab’s Amended Motion suggef f sts that a different result is proper here.11
In Pohl’s prior briefying, Pohl put forward evidence sufficient to, at a minimum, raise a
genuine issue of materCial fact on each element of his three claims. See generally Pohl’s Response
in Opposition to thea No-Evidence Motions for Summary Judgment Filed by the Kassab Defendants
and the Nicholsfon Defendants (including the evidence attached and incorporated therein). By the
10 As stated above, Pohl incorporates fully by reference his prior briefing and evidence on the no-evidence summary
judgment issue. See generally Pohl’s Response to Kassab’s No-Evidence MSJ (including the evidence cited therein).
11 The wording of Kassab’s no-evidence challenge to Pohl’s claims is almost entirely copied, word-for-word, from
Kassab’s No-Evidence MSJ. Compare Amended Motion, at 88–94, with Kassab’s No-Evidence MSJ. The sole
addition is a paragraph in which Kassab argues that “Pohl has no evidence that he is wholly innocent in the illegal
obtainment of any client for which his claims are based.” See Amended Motion, at 93. This is not part of any element
of Pohl’s claims, and Kassab does not explain otherwise. Kassab cites no authority to explain the relevance of this
assertion, nor does he establish that Pohl has the burden of proof with respect to this issue. See generally id. Thus,
this argument cannot be a proper basis for no-evidence summary judgment.
nature of a no-evidence summary judgment, once a party has presented sufficient evidence to
defeat such a motion, further no-evidence challenges on the same elements of a claim are futile.
Because Kassab previously raised a no-evidence challenge to each element of Pohl’s
claims, and Pohl provided sufficient evidence to support each element of his kclaims, the no-
evidence challenge to Pohl’s claims in Kassab’s Amended Motion necessarilly fails.12 For this
reason, and for the reasons stated in Pohl’s prior briefing incorporated hcerein, Pohl requests that
the Court deny Kassab’s Amended Motion. s
B. Kassab is not entitled to traditional summary judgmsent.
Kassab makes no effort to explain to the Court how the 189th District Court erred when it
previously denied Kassab’s Traditional MSJ. Nothing material has changed since Kassab’s
Traditional MSJ was denied, and the Amended Motion reiterates the same rejected arguments and
evidence. The Court should deny Kassab’s Amended Motion because, as Pohl demonstrated in
his prior briefing, Kassab’s arguments and evidence do not entitle Kassab to judgment as a matter
of law. Thus, Pohl requests that the Ceourt deny Kassab’s Amended Motion.
1. Pohl’s prior briefing dfefeats Kassab’s Amended Motion.
The 189th District Cyourt was right on the law and the facts when it denied Kassab’s
Traditional MSJ. The Court should deny Kassab’s Amended Motion because, excluding the
handful of exceptiaons discussed below, Kassab relies on the same arguments, exhibits, and
authority contaifned in Kassab’s No-Evidence MSJ to seek the same relief a second time. Nothing
has changed since this relief was first denied, and neither should the Court’s ruling on these issues.
As stated above, Pohl incorporates fully by reference his prior briefing and evidence on the
traditional summary judgment issues.13 Because the portions of the Amended Motion addressing
12 See Court Order, entered Oct. 31, 2022 (denying Kassab’s No-Evidence MSJ).
13 See generally Pohl’s Response to Kassab’s Traditional MSJ (including the evidence cited therein).
traditional summary judgment are largely identical to Kassab’s prior motion, further briefing on
this issue would be unnecessarily duplicative. Compare Amended Motion, at 2–88, with Kassab’s
Traditional MSJ. For the reasons stated in Pohl’s Response to Kassab’s Traditional MSJ the Court
should deny Kassab’s Amended Motion. k
2. Kassab’s citations to limited new materials does not justify recon
silderation or suggest
that summary judgment is proper.
While the issues, arguments, and the vast majority of the wordinrgi and exhibits are directly
copied from Kassab’s Original MSJs, Kassab does cite five new exDhibits and two new cases in the
Amended Motion. However, even if this new material were reslevant and applicable—which Pohl
disputes—it makes no difference, because disputed issuers of material fact or flaws in Kassab’s
legal arguments prevent summary judgment.
Kassab cites the limited new material in clonnection with three arguments in the Amended
Motion: (1) Pohl’s trade secret claim fails aMs a matter of law due to a failure to sufficiently protect
the trade secrets; (2) Pohl’s trade secreto claim fails as a matter of law because Pohl does not own
the trade secrets and property at issuce in his claims; and (3) that Pohl cannot recover on his claims
because Kassab’s affirmative defense of illegality or the unlawful acts doctrine is conclusively
established as a matter of law. None of these arguments support granting summary judgment.
i. Pohl reasonably protected his trade secret information, including information
concaerning clients.
Kassab fargues that Pohl’s claim for theft of trade secrets fails because Kassab has
established as a matter of law that “Pohl did not take any measures, let alone reasonable measures,
to keep his alleged information or client lists secret.” See Amended Motion, at 59–62 (citing Exs.
61–64 to the Amended Motion). Kassab’s evidence does not establish this fact. Even if
Kassab’s presentation of the testimony were accurate—and it is not—it would at most raise issues
of disputed material facts that preclude the Court from granting Kassab’s Amended Motion. Pohl’s
prior briefing presented controverting evidence on this precise issue that precludes summary
judgment.14
Pohl testified in his deposition regarding the reasonable steps he took to protect the client
information, confidential information, and trade secrets that are the subject mattekr of this suit.15
This alone is sufficient to raise a fact issue for the jury to decide regarding whelther the steps Pohl
took were reasonable under the circumstances to protect Pohl’s trade secrects. However, additional
evidence supports Pohl’s position that he protected the confidentisality of his trade secrets—
including the testimony of the same individuals that Kassab relises on to argue otherwise.
Kassab cites the testimony of Scott Walker, Kirk Ladner, and Steve Seymour to suggest
that Pohl failed to sufficiently protect information related to clients. See Amended Motion, at 61
(citing Exs. 62-64 to the Amended Motions). But Kassab’s citations to their testimony lacks
context. Those same three individuals testifiaed that Pohl limited access to his trade secrets, and
that Pohl ensured that those who had access to that information understood the confidential
character of that information.16 Thise testimony is also sufficient to raise a fact question on this
issue and prevent summary judgmfent.
Kassab also omits relyevant testimony from Mary Arnold—a former employee of Pohl’s—
to suggest that she didC not protect the confidentiality of Pohl’s trade secret information. See
Amended Motion, at 59–60. But Kassab fails to note that, in the same deposition he cites, Mrs.
Arnold testifiefdf about how she understood that Pohl owned the relevant information and that it
was not tUo be shared or discussed around third parties.17 The omitted portions of Mrs. Arnold’s
14 See Pohl’s Response to Kassab’s Traditional MSJ, at 25–26 (including the evidence cited therein).
15 See Pohl Deposition, at 15:21-16:18, attached as Ex. U to Pohl’s Response to Kassab’s Traditional MSJ.
16 See Deposition of Scott Walker, at 283:17-284:22, 321:5-324:7; Deposition of Kirk Ladner, at 355:18–358:10,
372:7–374:24, 377:4–23; Deposition of Steve Seymour, at 96:16-24, 223:1-20, attached as Exs. D, V, & W,
respectively, to Pohl’s Response to Kassab’s Traditional MSJ. See also Pohl Declaration ¶¶ 14-15, attached as Ex. A
to Pohl’s Response to Kassab’s Traditional MSJ.
17 See Deposition of Mary Arnold, at 83:14–24, 159:24–160:21, attached as Exhibit A.
testimony help demonstrate that there are disputed issues of material fact that prevents summary
judgment on this issue.
Kassab cannot show that he is entitled to judgment as a matter of law on Pohl’s trade secret
claim by selectively citing testimony that is contradicted, often by the same witnkess in the same
deposition. Even if Kassab’s evidence were relevant to showing that Pohl’s inlformation was not
reasonably protected—and it is not at all clear that the factors discussed bcy Kassab are relevant or
dispositive of this inquiry—there is ample controverting evidence abosut the measures took by Pohl
to protect the confidentiality of his trade secret information. Thesse disputed issues of material fact
prevent summary judgment on this issue.
ii. Kassab has not conclusively refuted, as a matter of law, Pohl’s ownership of the
relevant trade secrets and confidential information.
Kassab also argues that Pohl’s claims for ltheft of trade secrets and conversion fail because
Kassab can conclusively establish that “PohMl does not own the purported trade secrets or property
that he alleges had been converted.” Seoe Amended Motion, at 64. Kassab cites four new exhibits
in support of this argument. See id.c at 65 (citing Exs. 62–65 to the Amended Motion). However,
this issue was already addressed, and there are disputed issues of material fact that prevent
summary judgment. Kassab’s “new” evidence does not demonstrate that he can carry his burden
to establish this issue as a matter of law.
Kassab clcaims that “Walker, Ladner and Seymour all testified that all of their marketing
assets, including client contact information and lists were created by them and their marketing
companies and belonged to them.” See id. This statement is misleading at best. To the extent that
the cited testimony even concerns Pohl’s trade secrets and confidential information at issue in this
case—a fact Kassab fails to establish, despite it being his burden to do so—those same individuals
gave conflicting testimony stating the relevant documents and information were Pohl’s, belonged
to Pohl, and were kept confidential at his request.18 Such testimony—which Pohl cited in his prior
briefing—at a minimum raises a fact issue that precludes summary judgment on this issue.19
iii. Kassab not only fails to conclusively prove his affirmative defense of “unlawful
acts,” but the defense fails as a matter of law under binding precedent.
The final issue is Kassab’s argument that he conclusively established hris unlawful acts
doctrine affirmative defense, which he contends precludes any recovery by Pohl. See Amended
Motion, at 66. For this argument, Kassab cites four of the five new exhriibits. Id at 69 (citing Exs.
61–64 to the Amended Motion). Kassab also cites two new, out-Dof-state federal court decisions
that he claims support the application of his affirmative defensse. See id at 72–73. But even with
this new material, Kassab fails to carry his burden to estarblish his affirmative defense as a matter
of law. Rather, binding precedent demonstrates that his defense fails as a matter of law.
While Pohl disputes whether Kassab’s alrguments about barratry and the unlawful acts
doctrine have any relevance to this lawsuit aMt all, to the extent that the unlawful acts doctrine could
have any relevance to this case, it is preeompted by Texas’s proportionate responsibility statute. In
Dugger v. Arredondo, the Texas Sucpreme Court explicitly found that “the common law unlawful
acts doctrine is no longer a viable defense.” See 408 S.W.3d 825, 831–32 (Tex. 2013). This issue
was briefed previously, and Pohl directs the Court’s attention to that prior briefing, which Pohl
incorporates fully by reference.20 At the outset, the fact that this defense has been preempted
justifies denying cKassab’s Amended Motion on this issue.
Even if his defense were not preempted and Kassab’s evidence did suggest that Pohl
engaged in improper solicitation—two things Kassab has not demonstrated—Kassab would still
18 See Deposition of Scott Walker, at 283:17-284:22, 316-319; 321:5-324:7, 327-329; Deposition of Kirk Ladner, at
119:21-120:15, 340:10-342:17, 350:11-351:21, 355:18–358:10, 372:7–374:24, 377:4–23; Deposition of Steve
Seymour, at 96:16-24, 223:1-20, attached as Exs. D, V, & W, respectively, to Pohl’s Response to Kassab’s Traditional
MSJ.
19 See Pohl’s Response to Kassab’s Traditional MSJ, at 27; Pohl’s Response to Kassab’s No-Evidence MSJ, at 9–10.
20 See Pohl’s Response to Kassab’s Traditional MSJ, at 19–23.
10
not be entitled to judgment as a matter of law on this defense. First, as discussed throughout the
prior briefing, there is controverting evidence on this issue that raises disputed issues of material
fact.21 Furthermore, even if Kassab were able to show that some illegal act occurred, Pohl does
not need to rely on any purported illegal act to establish his claims in this lawsuit.k22 Kassab does
not even attempt to establish otherwise. See Amended Motion, at 69. Thus, thel application of this
defense is not triggered in the first place. See Carcamo-Lopez v. Does 1 tchrough 20, 865 F. Supp.
2d 736, 767 (W.D. Tex. 2011) (“But when the illegal conduct arisess in a defense and not in the
plaintiff’s case, the unlawful acts rule will not bar a plaintiff’s cslaims.”).
The two new cases Kassab cites are not binding and have no application to the facts of this
case. The first new case Kassab cites is Alderson v. United States, 718 F. Supp. 2d 1186, 1200
(C.D. Cal. 2010). See Amended Motion, at 72. Quoting dicta, Kassab argues that: “A person
cannot ‘receive trade secret protection for infaormation about ongoing illegal activities.’” See id.
(quoting Alderson, 718 F. Supp. 2d at 1200). But the reasoning of Alderson has no application to
this case. Alderson dealt with a plainetiff who, in a prior case, filed a False Claims Act action on
behalf of the federal government fconcerning Medicare fraud uncovered by the plaintiff. Alderson,
718 F. Supp. 2d at 1188. Ayt issue was whether the proceeds obtained by the plaintiff from the
prior False Claims ActC action were “correctly characterized as ordinary income” or capital gains
for purposes of taxation. See id. at 1201. It was in this context that the court considered whether
the plaintiff hafdf a protectable property interest in his knowledge of “information about ongoing
illegal acUtivities”—that is, how the Medicare fraud occurred that was the basis of the prior False
Claims Act action. See id. at 1200. The facts of this case are not analogous. Here, Pohl does not
21 See id. at 4–12, 23–27 (including the evidence cited therein).
22 See Pohl’s Response to Kassab’s No-Evidence MSJ, at 4–17 (discussing each element of Pohl’s claims without
requiring reference to or reliance on any illegal acts).
11
claim trade secret protection concerning how any illegal conduct was undertaken. Instead, Pohl
contends his customer lists and related information are entitled to trade secret protection.23
The second new case Kassab cites is Merckle GmbH v. Johnson & Johnson, 961 F. Supp.
721, 733 (D.N.J. 1997). See Amended Motion, at 72. Kassab cites to this case clakiming that there
is a privilege to disclose trade secrets “in connection with the disclosure of linformation that is
relevant to public health or safety, or to the commission of a crime or tocrt, or to other matters of
substantial public concern.” See Amended Motion, at 72 (citing Mserckle GmbH v. Johnson &
Johnson, 961 F. Supp. 721, 733 (D.N.J. 1997) & Restatement (Tshird) of Unfair Competition § 40,
cmt. c). However, there is a reason that Kassab cites this non-precedential opinion. No Texas case
has adopted this statement from the Restatement. Even if Texas were to adopt this privilege,
Kassab’s conclusory discussion does not carry his burden to establish this defense.
Kassab’s unlawful acts doctrine defensae fails as a matter of law under the binding precedent
of Dugger v. Arredondo. But even if this remained a proper defense, Kassab’s evidence does not
conclusively establish this defense eas a matter of law. The facts put forth by Kassab are
controverted by other evidence, afnd even if Kassab’s purported facts could be established, Kassab
has not conclusively shown tyhat they would trigger application of the unlawful acts doctrine, given
that Pohl’s claims do nCot require reference to or reliance on any purported unlawful act.
VI. CONCLUSION
For the fforegoing reasons, and for the reasons stated in Pohl’s prior briefing—which is
incorporaUted fully herein by reference—Plaintiffs Michael Pohl and Law Offices of Michael A.
Pohl respectfully request that the Court deny Kassab’s Amended Motion.
23 See Pohl’s Response to Kassab’s No-Evidence MSJ, at 9–10 (discussing how “the materials at issue included Pohl’s
client lists, client files, and thousands of contracts between Pohl and his clients”).
12
Dated: March 29, 2023 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 29th day of March, 2023.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
13
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 74146534
Filing Code Description: Answer/ Response / Waiver
Filing Description: Plaintiffs' Response to Kassab Defendantst Amended
Motions for Summary Judgment i
Status as of 3/30/2023 8:24 AM CST s
Case Contacts 
Name BarNumber Email TimgestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 3/29/2023 5:09:20 PM SENT
Harris Wells hwells@reynoldsfrizzell.com3/29/2023 5:09:20 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/29/2023 5:09:20 PM SENT
Scott M.Favre scott@favrepa.coma 3/29/2023 5:09:20 PM SENT
Lawyer Wade lawyerwade@hotmail.com 3/29/2023 5:09:20 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/29/2023 5:09:20 PM SENT
Misty Davis mdavis@creynoldsfrizzell.com 3/29/2023 5:09:20 PM SENT
Lance Kassab eservef@kassab.law 3/29/2023 5:09:20 PM SENT
Lance Kassab lance@kassab.law 3/29/2023 5:09:20 PM SENT
David Kassab david@kassab.law 3/29/2023 5:09:20 PM SENT
Nicholas Pierce Cnicholas@kassab.law 3/29/2023 5:09:20 PM SENT
Andrea Mendez a andrea@kassab.law 3/29/2023 5:09:20 PM SENT
Murray JFogler mfogler@foglerbrar.com 3/29/2023 5:09:20 PM SENT
Murray Fogler o mfogler@fbfog.com 3/29/2023 5:09:20 PM SENT
D Kassab U david@kassab.law 3/29/2023 5:09:20 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/29/2023 5:09:20 PM SENT
L Kassab lance@kassab.law 3/29/2023 5:09:20 PM SENT
Kelly Skelton reception@kassab.law 3/29/2023 5:09:20 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/29/2023 5:09:20 PM SENT"
53,2023-03-14,RSP,Pohl,Response to Mtn to Rule,Plaintiffs' Response in Opposition to Kassab's Motion to Rule on Plaintiffs' Objections to Kassab's Deposition on Written Questions of Scott Favre,"Filed March 14, 2023 in the 281st Judicial District Court by Pohl's counsel Jean C. Frizzell of Reynolds Frizzell LLP. Pohl opposes Kassab's motion seeking to overrule Pohl's objections to Kassab's deposition on written questions (DWQ) of Scott Favre. This is Kassab's second motion — the first version argued leading questions were 'cross examination' but was revised to remove that argument as directly contrary to the Texas Rules of Civil Procedure.",MSJ-2R,N/A,Phase 4,2023-03-14_RSP_Pohl-Response-to-Kassab-Mtn-to-Rule_FILED.pdf,Deny Kassab's Motion to Rule and sustain Pohl's objections to the questions contained in Kassab's DWQ,"3/14/2023 9:54 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73666907
By: Bonnie Lugo
Filed: 3/14/2023 9:54 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN OPPOSITION TO KASSAB’S MOTION TO RULE
Plaintiffs Michael Pohl and Law Office of Michael As. Pohl PLLC (collectively “Pohl”)
respond in opposition to Defendants Lance Christopher rKassab and Lance Christopher Kassab
P.C.’s (collectively, “Kassab”) Motion to Rule on Plaintiffs’ Objections to the Kassab Defendants’
Notice to Take Deposition on Written Questions lof Scott Favre (the “Motion”).1
I. MBACKGROUND
The parties have been unable to osecure an oral deposition of Scott Favre (“Favre”), and the
parties have been told his capabilityc to appear is limited by his ongoing cancer treatment. Favre
is a former co-defendant, and Pohl alleged Favre conspired with Kassab to misappropriate Pohl’s
trade secrets and propertyp, including by selling that information to Kassab.2 Although Kassab
admits that he made a six-figure, up-front payment to Favre, he contends the payment was made
to hire Favre as anc e i xpert to assist Kassab with bringing barratry claims against Pohl.3 Pohl alleges
the payment woas made in exchange for misappropriating Pohl’s confidential information.4
1 This is the second motion Kassab filed regarding Pohl’s objections. Kassab initially tried to argue that his leading
questions were proper because they constituted “cross examination.” But Kassab filed a subsequent motion that
removed that argument, as it was directly contrary to the wording of the Texas Rules of Civil Procedure. Compare
Kassab Defendants’ Motion to Rule on Plaintiffs’ Objections to the Kassab Defendants’ Notice to Take Deposition
on Written Questions of Scott Favre, filed Feb. 28, 2023, with Motion (filed March 2, 2023).
2 See Pohl’s First Amended Petition ¶¶ 21–23.
3 See Deposition of Lance Kassab at 82:21–83:16, 98:15–99:8, 103:5–9, attached as Exhibit A.
4 See Pohl’s First Amended Petition ¶¶ 22–23.
After it became clear that Favre would not sit for an oral deposition, Pohl served a notice
for a deposition on written questions (“Pohl’s DWQ”) on February 3, 2023, to ensure the parties
secured Favre’s testimony before trial. See Pohl’s DWQ, attached as Exhibit 1 to the Motion.
Instead of serving questions in response, Kassab served a notice for a new deposkition on written
questions (“Kassab’s DWQ”), on February 17, 2023.5 See Kassab’s DWQ, atltached as Exhibit 2
to the Motion. Kassab did not limit himself to “direct questions” of Favrec—as provided for under
the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 200.3(a). Insstead, Kassab asked leading
questions of Favre. Kassab also asked questions with typos sthat affected the meaning of the
questions and numerous questions that were misleading, vague, or were otherwise improper. Pohl
properly asserted objections to these questions.
II. DISyCUSSION
The Court should sustain Pohl’s objections and deny the Motion because Kassab is not
entitled to ask leading questions to a co-conspirator on direct examination, and Pohl’s form
objections to Kassab’s questions aree warranted on their face given the wording of Kassab’s
questions. Kassab’s Motion is jusft over two pages in length, and it fails to specify which of Pohl’s
objections Kassab takes issuye with. The Motion should be summarily denied.
A. Pohl’s objectCions to Kassab’s leading questions should be sustained because
Kassab has not shown that Favre is a hostile witness.
The Courct should sustain Pohl’s objections to Kassab’s leading questions because the
Texas Rules oof Evidence generally prohibit the use of leading question on direct examination, and
Kassab has not shown that any exception to that rule applies. Kassab now argues that Favre—
5 Kassab initially filed a version of Kassab’s DWQ for service on February 17, 2023, but it appears that a subsequent
filing was accepted on February 20, 2023. The precise date is not material, as Kassab’s DWQ purports on its face to
be a new deposition on written questions, rather than a response to Pohl’s DWQ. Additionally, while it is not directly
at issue, to Pohl’s knowledge, Kassab did not secure Favre’s consent to a second deposition on written questions—
which is necessary given that Favre was not subpoenaed.
who Kassab was aligned with for four years and who was a co-defendant with and a co-conspirator
of Kassab—is a hostile witness to Kassab. See Motion at 1–2. But Kassab’s allegations do not
demonstrate that Favre is a hostile witness. Thus, Kassab’s leading questions are improper.
The default rule is that “[l]eading questions should not be used on direct exakmination. TEX.
R. EVID. 611(c). However, a court may allow leading questions “when a
plarty calls a hostile
witness, an adverse party, or a witness identified with an adverse partyc.” Id. “The decision to
permit a leading question lies within the sound discretion of the triasl court.” Mega Child Care,
Inc. v. Tex. Dep’t of Protective & Regulatory Services, 29 S.W.3sd 303, 308 (Tex. App.—Houston
[14th Dist.] 2000, no pet.).
There is no dispute that Kassab asked leading questions, nor does Kassab contend that any
of Pohl’s “leading” objections were directed at non-leading questions. See Motion at 1–2. Instead,
Kassab claims that his leading questions werae proper because the questions were directed at “a
hostile witness. See id. at 2. But throughout the history of this case, Favre has been aligned with
Kassab and hostile to Pohl. Kassab celaims that he hired Favre as an expert witness to assist him
on numerous potential disputes.6 f Favre is a former co-defendant of Kassab in this lawsuit.7 And
Pohl alleges that Favre is a yco-conspirator along with Kassab in relation to the misappropriation
of Pohl’s trade secrets.C8 To rebut this status quo, Kassab offers little more than conjecture.
Kassab makes three claims to support his claim that Favre should be viewed as a hostile
witness: (1) “Pflfaintiffs came to an agreement with Favre to nonsuit him and his companies”; (2)
Favre’s laUwyer “threatened to sue Kassab”; and (3) Favre’s lawyer “has refused to cooperate with
6 See Deposition of Lance Kassab at 82:21–83:16, attached as Exhibit A.
7 See generally Pohl’s First Amended Petition.
8 See id. ¶ 43.
the Kassab’s Court Reporter to set a time for Favre to answer Kassab’s deposition on written
questions.” See Motion at 2. None of these arguments has merit.
1. A plaintiff settling with or non-suiting a party does not make that party “hostile” to
remaining defendants.
Kassab’s primary justification for treating Favre as “hostile” is that Krassab submitted
questions to Favre after Pohl “came to an agreement with Favre to nonsuit him and his companies.”
See Motion at 2. Other than citing to Rule of Evidence 611(c), whicrhi provides for the hostile
witness exception, Kassab cites no authority showing that non-suitiDng a defendant makes that party
“hostile” to remaining defendants. s
As Pohl’s counsel has stated during hearings in thirs lawsuit, Pohl was incentivized to settle
or non-suit multiple defendants as part of an unsuccessful strategy to prevent trial from being
delayed.9 Given that the parties have been told plreviously that Favre had been so ill that he could
not sit for a full remote Zoom deposition,10M Pohl has no confidence that Favre could participate as
a party in a two-week trial. Given thosoe circumstances, Pohl’s non-suit of Favre does not justify
Kassab treating Favre as a hostile wcitness.
2. A personal dispute between Favre’s lawyer and Kassab does not show Favre is
“hostile” to Kassyab.
Kassab’s second justification for treating Favre as “hostile” is that an overheated and tense
email exchange oaccurred between lawyers after a deposition was canceled due to the
hospitalization off the witness. Kassab described this dispute as follows:
Favre has become a hostile witness because his lawyer, David Wade has threatened
to sue Kassab simply because Kassab asked him and Plaintiff’s counsel to pay for
the deposition that they both cancelled after Wade promised the Court he would
present Favre on a day certain and then cancelled.
9 See Dec. 1, 2022 Hearing Transcript, at 22:12–23:11, attached as Exhibit B.
10 Even when Favre did purport to be available, his lawyer could not commit that he could complete a deposition in a
single sitting. See id. at 13:11–14:13.
Motion at 2 (citing Exhibit 4 to the Motion). Kassab presents this issue without appropriate context
and in a misleading fashion.
This issue concerns a prior attempt by the parties to take an oral deposition of Favre on
December 7, 2022. Prior to that deposition, Kassab was aware that there might bek issues with the
deposition occurring as scheduled. He knew that Favre was fighting the flu andl had chemotherapy
scheduled for two days prior to the deposition.11 Counsel for Kassab cemailed Favre’s lawyer
(David Wade) the day before to inquire about whether the depositiosn would go forward.12 The
next morning, before the deposition, David Wade notified Kasssab that “Favre has been in the
hospital since last night. His deposition will not move forward this morning. I will update you with
his next availability when I receive that information. Thank you for your patience.”13
Despite being told that the deposition could not go forward due to Favre’s hospitalization,
the very next day, Kassab demanded that Davaid Wade and Pohl’s counsel pay an invoice for the
deposition that was cancelled. See Exhibit 4 to the Motion, at 2. David Wade’s response to
Kassab’s request shows his obvious efrustration.14 While Pohl does not endorse David Wade’s
response to Kassab, all that this exfchange reflects is tension between counsel to parties to a lawsuit.
It does not demonstrate that yFavre—who did not send the email—is a hostile witness to Kassab.
3. An after-theC-fact logistical issue between Favre’s lawyer and a court reporter does not
demonstrate that Favre is “hostile” to Kassab.
Kassab’s cfinal justification for why the Court should treat Favre as “hostile” is because
David Wade allegedly “refused to cooperate with the Kassab’s Court Reporter to set a time for
Favre to answer Kassab’s deposition on written questions.” See Motion at 2 (citing Exhibit 6 to
11 See Dec. 1, 2022 Hearing Transcript, at 13:7–21, attached as Exhibit B.
12 See Dec. 6, 2022 email from Murray Fogler, attached as Exhibit C.
13 See Dec. 7, 2022 email from David Wade, attached as Exhibit D.
14 It is worth noting that Kassab’s description of this email is inaccurate. Contrary to what Kassab says, David Wade
did not threaten to sue Kassab. See Motion at 2. Rather, David Wade made the facially non-serious statement that if
“you ask me that again, i will ask my client to sue . . . .” See Exhibit 4 to the Motion, at 1.
the Motion). But nothing about the email chain Kassab cites demonstrates that Favre is a hostile
witness to Kassab. Kassab provides no authority to show that a lawyer’s failure to respond to two
scheduling emails can make that lawyer’s client hostile to a party in a lawsuit.
To support his conclusion that Favre is a hostile witness due to Mr. Wkade’s supposed
failure to cooperate in scheduling, Kassab cites a single email chain. See Mlotion at 2 (citing
Exhibit 6 to the Motion). But this exhibit shows very little. First, it shocws that Mr. Wade spoke
to the court reporter hired by Kassab on February 24, 2023. See Esxhibit 6 to the Motion, at 2.
Subsequently, it appears that Mr. Wade did not respond to two scsheduling emails sent by that court
report—emails sent on consecutive days, February 28, and March 1, 2023. See id. at 1–2.
However, Mr. Wade’s failure to respond to those two emails is not indicative of much, if
anything at all. The first email was sent at 9:47 AM on February 28, 2023, and the second email
was sent the next day, March 1, 202,3 at 10:1a2 AM. Id. That same day, on March 1, 2023—just
over 30 hours after the first email was sent—Kassab first filed the Motion complaining about Mr.
Wade’s failure to respond.15 Whilee Pohl does not know if or when Mr. Wade responded, all
Kassab’s Motion indicates is thaft Kassab filed the Motion on March 1st complaining that Mr.
Wade had not responded to yan email sent the prior day, on February 28th. Such events have no
bearing on whether a wCitness is hostile to a party.
Not only does Kassab provide no authority indicating that a scheduling issue by a lawyer
can result in thfaft lawyer’s client being found to be hostile to another party, but Kassab does not
explain hUow such a finding could retroactively justify objectionable questions. Kassab served his
leading questions on Favre no later than February 20, 2023. See Kassab’s DWQ, attached as
15 See Exhibit E (showing that Kassab first attempted to file the Motion at 3:57 PM on March 1, 2023). Kassab’s
filing was rejected, and the Motion was refiled the next day, on March 2, 2023. See Motion at 5 (showing the
“Automated Certificate of eService”). The Certificate of Service on the Motion still states that it was served on “March
1, 2023,” reflecting the date that Kassab first attempted to file the Motion. See id. at 4.
Exhibit 2 to the Motion. Kassab does not address how Mr. Wade’s purported failure to respond to
emails sent well over a week after Kassab’s DWQ was served could justify Kassab’s previously
served leading questions.
Even assuming Kassab’s accounting of events could be established wkith evidence, a
lawyer’s failure to promptly respond to a scheduling email, which was sent alfter questions were
served on that lawyer’s client, does not render that client hostile to any pcarty. Because Kassab’s
post-hoc attempt to justify his leading questions fails, the Court shousld sustain Pohl’s objections
to Kassab’s leading questions. s 
B. Pohl’s objections to the form of Kassab’s questions should be sustained.
Many of Kassab’s questions to Favre are objectionable on their face. In the Motion, Kassab
even concedes that some of his questions were defective, as they contain “typos or misspellings of
words.” See Motion at 1–2. But Kassab did not choose to fix those admitted issues by submitting
amended questions as part of his “redirect questions.” Instead, Kassab makes the heated
accusation that “Pohl filed frivolous e. . . objections to several of the questions propounded.” See
id. Despite accusing Pohl of assferting “frivolous” objections, Kassab did not bother to identify
which questions or objectionys are at issue. See id.
Kassab’s failurCe to identify the questions or objections at issue indicates the weakness of
his position. He doaes not cite to a single example of the supposedly “frivolous” objections Kassab
claims were assferted by Pohl. See id. Additionally, contrary to Kassab’s suggestion (see Motion
at 2–3), eUvidence is not needed to sustain objections to the form of questions. See In re Union
Pac. Res. Co., 22 S.W.3d 338, 341 (Tex. 1999) (discussing how “evidence may not always be
necessary to support” objections). The Court should sustain Pohl’s objections because they are
asserted in response to facially objectionable questions.
Pohl objected to portions of 100 out of the 145 questions contained in Kassab’s DWQ. See
Pohl’s Objections to Kassab’s DWQ, attached as Exhibit 3 to the Motion. Kassab appears to be
concerned about “objections to several of the questions,” but Kassab does not specify which
objections or questions are at issue. See Motion at 1–2. Pohl will not waste thke Court’s time
addressing each objection to the 100 potential questions that could be at issule. Each of Pohl’s
form objections state a basis for the objection that is supported on the facec of the objection and the
request to which it is addressed. See generally Pohl’s Objections to sKassab’s DWQ, attached as
Exhibit 3 to the Motion. However, to illustrate the appropriatenesss of his objections, Pohl provides
the brief discussion of some examples below.
Kassab’s Question #3 states: “How state how many businesses have you managed in any
compacity and the names of those businesses during your entire business carrier?” See id. at 2
(errors in original). Given the typos, Pohl oabjected to the question and pointed out the various
issues, including that, “Pohl objects to the form of this question, as it contains typos and is
confusing, and it is thus vague and amebiguous.” See id. Pohl specifically pointed out that the first
word of the question, “how” appfears to be a typo. See id. It makes no sense to say “how state
how,” in the context of a quyestion. Pohl also pointed out that the spellings of “compacity” and
“carrier” appear to be iCncorrect, at least in the context of this question. See id. On the face of the
question, Pohl’s objections are proper and supported, and the Court should sustain such objections.
Anothefrf example is Kassab’s Question #15, which states: “Is PMG a marketing company?”
See id. atU 4. Pohl objected to this question on the following bases: “Pohl objects to the form of
this question, as it is vague. Pohl also objects to the form of this question because it is not limited
in time or scope.” See id. The question is vague, because it is not clear what Kassab meant by the
phrase “marketing company.” And the question is not limited in time or scope, because Kassab
did not ask about whether PMG was a “marketing company” during a specific period or otherwise
limit the scope of this question. PMG (Precision) engaged in different activities, at different times,
under different ownership. Kassab’s failure to specify a time period is objectionable.
Finally, in Question #18, Kassab asked: “Did PMG compile marketing lkists?” Id. at 5.
Pohl objected to this question on multiple grounds, including that it was vague, lnot limited in time,
and called for speculation. See id. Given that Favre purchased PMG acfter it is alleged to have
engaged in so-called “marketing” activities, there is no basis for Favres to have personal knowledge
of PMG “compil[ing] marketing lists.” See id. Thus, Kasssab’s question seeks for Favre to
speculate in response. The question is vague and ambiguous, because the meaning of the phrase
“marketing list,” is unclear, especially given the disputes about the use of this term in this lawsuit.
And the question is not limited in time, because Kassab did not ask about whether PMG compiled
“marketing lists” during a specified relevant taime period.
Pohl’s objections to these three questions are exemplars that show that Pohl made
reasonable objections to facially objeectionable questions asserted by Kassab. A simple review of
each question and the objection fitself is sufficient to support such objections. Because Pohl’s
objections are proper on theiyr face, Pohl requests that the Court sustain those objections and deny
Kassab’s Motion. C
III. CONCLUSION
For the fforegoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfuUlly request that Kassab’s Motion be denied and that the Court sustain Pohl’s objections
to the questions contained in Kassab’s DWQ.
Dated: March 14, 2023 Respectfully submitted,
REYNOLDS FRIZZELL LLP
By: /s/ Jean C. Frizzell
Jean C. Frizzell
State Bar No. 07484650 k
1100 Louisiana St., Suite 3500 e
Houston, Texas 77002 l
Tel. 713.485.7200
Fax 713.485.7250 c
jfrizzell@reynoldsfrizzell.rcom
Attorney for PlaintifDfs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CERTIFICATE OF SERrVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texas Rules of Civil Procedure on this 14th day of March, 2023.
M /s/ Jean C. Frizzell
 Jean C. Frizzell
10
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 73666907
Filing Code Description: Answer/ Response / Waiver
Filing Description: Plaintiffs' Response in Opposition to Kassatb's Motion to
Rule i
Status as of 3/15/2023 8:41 AM CST s
Case Contacts 
Name BarNumber Email gTimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 3/14/2023 9:54:18 PM SENT
Andrew Johnson ajohnson@thompsoncoe.com 3/14/2023 9:54:18 PM SENT
Benjamin Ritz britz@thompsoncoe.com 3/14/2023 9:54:18 PM SENT
Murray JFogler mfogler@foglerbarar.com 3/14/2023 9:54:18 PM SENT
Murray Fogler mfogler@fbfog.com 3/14/2023 9:54:18 PM SENT
Dale Jefferson 10607900 jefferson@mdjwlaw.com 3/14/2023 9:54:18 PM SENT
Raul Herman Suazo 24003021 suazoc@mdjwlaw.com 3/14/2023 9:54:18 PM SENT
Kevin Graham Cain 24012371 cafin@mdjwlaw.com 3/14/2023 9:54:18 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/14/2023 9:54:18 PM SENT
Harris Wells hwells@reynoldsfrizzell.com 3/14/2023 9:54:18 PM SENT
Scott M.Favre C scott@favrepa.com 3/14/2023 9:54:18 PM SENT
Lawyer Wade a lawyerwade@hotmail.com 3/14/2023 9:54:18 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/14/2023 9:54:18 PM SENT
Misty Davis o mdavis@reynoldsfrizzell.com 3/14/2023 9:54:18 PM SENT
Lance KassabU eserve@kassab.law 3/14/2023 9:54:18 PM SENT
Andrea Mendez andrea@kassab.law 3/14/2023 9:54:18 PM SENT
Lance Kassab lance@kassab.law 3/14/2023 9:54:18 PM SENT
David Kassab david@kassab.law 3/14/2023 9:54:18 PM SENT
Nicholas Pierce nicholas@kassab.law 3/14/2023 9:54:18 PM SENT
D Kassab david@kassab.law 3/14/2023 9:54:18 PM SENT
L Kassab lance@kassab.law 3/14/2023 9:54:18 PM SENT
Kelly Skelton reception@kassab.law 3/14/2023 9:54:18 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 73666907
Filing Code Description: Answer/ Response / Waiver
Filing Description: Plaintiffs' Response in Opposition to Kassatb's Motion to
Rule i
Status as of 3/15/2023 8:41 AM CST s
Case Contacts 
Murray J. Fogler 7207300 mfogler@foglerbrar.com g3/14/2023 9:54:18 PM SENT"
52,2023-03-08,RSP,Pohl,Response to Mtn to Reconsider/Rule,Plaintiffs' Response in Partial Opposition to Kassab's Motion to Reconsider or Rule,"Filed March 8, 2023 in the 281st Judicial District Court (Judge Weems) by Pohl's counsel Jean C. Frizzell of Reynolds Frizzell LLP. Response to Kassab's Motion to Reconsider or Rule (filing #49), which sought reconsideration of three prior orders by Judge Dollinger. Pohl partially opposes — agreeing the court should rule on the pending RTP motion but opposing reconsideration of the abatement and discovery compulsion rulings.",MSJ-2R,N/A,Phase 4,2023-03-08_RSP_Pohl-Response-to-Kassab-Mtn-to-Reconsider-or-Rule_FILED.pdf,Deny Kassab's Motion in part; deny Kassab's Supplemental RTP Motion on the merits; decline to reconsider prior rulings on Kassab's Motion to Abate and Motion to Compel,"3/8/2023 7:39 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 73486867
By: Lewis John-Miller
Filed: 3/8/2023 7:39 PM
CAUSE NO. 2018-58419
MICHAEL A. POHL, et. al § IN THE DISTRICT COURT OF
Plaintiffs, §
V. § HARRIS COUNTY,k TEXAS
§ e
LANCE CHRISTOPHER § C l
KASSAB, et. al § 
§ c
Defendants. § 281ST JUDrICIAL DISTRICT
PLAINTIFFS’ RESPONSE IN PARTIAL OPPOSITION TO KASSAB’S MOTION TO
RECONSIDER OR RULE s
Defendants Lance Christopher Kassab and Lance Christopher Kassab P.C. d/b/a/ The
Kassab Law Firm (collectively, “Kassab”) filed the Motion to Reconsider or Rule (the “Motion”),
and in it states he filed it in order to file a petition for writ of mandamus if the Motion is denied.
Pohl partially opposes the relief Kassab requests in his Motion. Pohl does not oppose the Court
ruling on Kassab’s pending motion to designate responsible third parties—although Pohl contends
that motion should be denied when thee Court addresses it on the merits. However, Pohl does not
agree that the Court should reconfsider or revisit the other two rulings mentioned in the Motion,
and Kassab has not shown hyow any prior ruling was erroneous.
C I. DISCUSSION
Kassab asksa the Court to rule on one pending motion and to reconsider rulings on two other
motions. Kassafb is not entitled to relief on the merits with respect to any of those three motions.
First, the Court should rule on Kassab’s Supplemental Motion to Designate Responsible Third
Parties (“Kassab’s Supplemental RTP Motion”), but it should deny the relief Kassab requests.
Kassab’s Supplemental RTP Motion does not fix the pleading defect that caused Judge Dollinger
to deny Kassab’s first motion to designate responsible third parties. Second, Kassab provides no
basis for why the Court should reconsider the denial of Kassab’s Motion to Abate Trial Setting
(“Kassab’s Motion to Abate”), and the Court should not allow Kassab to delay trial. Third, the
Court should not reconsider the denial of Kassab’s Motion to Compel Testimony and Documents
Pursuant to the Offensive Use Doctrine (“Kassab’s Motion to Compel”). Kassab’s arguments on
the offensive-use doctrine fail on the merits. k
A. The Court should deny Kassab’s Supplemental RTP Motion. C l
Pohl agrees that the Court should rule on Kassab’s Supplemental cRTP Motion. However,
the Court should deny that motion on the merits. To designate a ressponsible third party, Kassab
must plead sufficient facts showing that alleged responsible third parties were responsible for the
harms underlying Pohl’s claims. Kassab failed to do that in his first motion, and his supplemental
motion—which asserts the same prior factual allegations in a new order—does not fix this defect.
Kassab’s failure to plead new factual allegations gives the Court a straightforward way to
resolve Kassab’s Supplemental RTP Motion. Deny it. While this case was pending before the
189th District Court, Judge Dollinger denied Kassab’s first motion to designate responsible third
parties because Kassab failed to pleaed sufficient facts showing that the alleged responsible third
parties were responsible for the hafr f ms underlying Pohl’s claims.1 Judge Dollinger’s ruling reached
the proper result, and with nyo new factual allegations, the same result is appropriate here.
As laid out in PCohl’s Objection, Kassab’s Supplemental RTP Motion did not address the
failings of the origianal motion—instead, it simply copies and paraphrases, in a new order, prior
factual allegatiofns that Judge Dollinger found to be deficient. See generally Pohl’s Objection to
Kassab’sU Supplemental Motion to Designate Responsible Third Parties, filed Nov. 30, 2022.
Because Kassab chose to assert the same facts, which were previously found to be insufficient
under the pleading standard, the Court should deny Kassab’s Supplemental RTP Motion.
1 See Court Order, dated Oct. 31, 2022 (denying Kassab’s first motion to designate responsible third parties); see also
generally Pohl’s Objection to Kassab’s Motion to Designate Responsible Third Parties, filed May 31, 2022.
B. Kassab’s Motion to Abate was properly denied.
In the fall of 2022, Kassab filed his Motion to Abate. Judge Dollinger correctly found that
abatement of this case was not proper or necessary. Nothing has changed since that ruling
occurred, and the Court should decline to revisit the denial of Kassab’s Motion to kAbate.
Kassab does not explain why he believes that Judge Dollinger’s decisioln to deny Kassab’s
Motion to Abate was wrong. See generally Motion. Instead, Kassab sucggests that abatement is
justified because he contends that “the outcome of Cheatham could sresult in a judgment against
Pohl for barratry, which will definitively establish Kassab’s defenses to Pohl’s claims.” See id. at
2. That is not true, and Pohl’s Response to the Kassab Defendants’ Motion to Abate Trial Setting,
filed Sept. 15, 2022 (“Pohl’s Response to Kassab’s Motion to Abate”), clearly explains why
abatement is not appropriate.
Even if barratry were relevant in this matter—and it is not—the results in a separate lawsuit
in which Pohl, but not Kassab, is a party cannot establish Kassab’s defenses in this lawsuit.
Kassab’s Motion to Abate argues abeatement is proper for two reasons: (1) Pohl is still incurring
damages; and (2) the outcome off a separate lawsuit—the Cheatham case—will impact Kassab’s
illegality (unlawful acts doyctrine) defense. See generally Kassab’s Motion to Abate. These
arguments did not withCstand scrutiny.
First, the faact that this case might involve future damages does not justify abatement.
Future damagesf are not an uncommon occurrence, and to recover such damages, Pohl must satisfy
the ordinUary standard of showing to the jury that he will sustain those damages with reasonable
probability. Second, Kassab’s unlawful acts defense has been preempted and does not apply—a
fact which is laid out in Pohl’s Response to Kassab’s Motion to Abate. Because nothing has
changed since the Motion to Abate was correctly ruled on in the first instance, the Court should
deny Kassab’s request to reconsider that ruling.
C. Kassab has not shown that Pohl waived the attorney–client privilege, and thus
Kassab’s Motion to Compel was properly denied.
Kassab provides no explanation for why the Court should reconsider Judge Dollinger’s
denial of Kassab’s Motion to Compel. Kassab improperly sought to pierce the attorney–client
privilege, but he failed to show how the legal elements of the offensive-use dorctrine were met.
Kassab’s Motion does nothing to explain why Kassab’s position was right on the merits, and the
Court should deny the Motion without revisiting this decision. r i
In his Motion to Compel, Kassab improperly sought to oDbtain attorney–client privileged
materials between Pohl and Billy Shepherd (Pohl’s current attosrney in the Cheatham matter). See
generally Motion to Compel. Kassab is particularly inrterested in obtaining these privileged
materials because Kassab is counsel to the plaintiffs who are suing Pohl in the Cheatham matter.
Thus, in this lawsuit, Kassab sought to obtain prlivileged materials from a third party who is his
opposing counsel in the Cheatham matter. M
Given that Kassab’s Motion too Compel was filed in conjunction with multiple other
discovery motions, Pohl filed a joinct response that addressed it as well as other discovery motions
filed by Kassab. See Plaintiffs’ Response in Opposition to the Kassab Defendants’ Three New
Motions to Compel, at 7–16, filed Sept. 27, 2022. For the reasons stated in that response, the Court
should deny Kassab’s request to reconsider the denial of Kassab’s Motion to Compel. Not only
has Kassab failedc to establish offensive-use waiver, but independently, it was a reasonable exercise
of Judge Dol o linger’s discretion to deny Kassab’s attempt to obtain this privileged information.2
Therefore, the Court should decline to reconsider this ruling and should deny the Motion.
2 Kassab never showed that he diligently pursued the discovery sought in the Motion to Compel prior to the close of
discovery. Given this, and that Kassab sought privileged materials from Pohl’s counsel (who is opposing counsel to
Kassab in another lawsuit), Judge Dollinger was entitled to exercise his discretion to limit the scope of discovery and
deny Kassab access to privileged materials. See In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (“scope of
discovery is within the trial court’s discretion”); In re State Farm Lloyds, 520 S.W.3d 595, 599 (Tex. 2017) (“discovery
rules imbue trial courts with the authority to limit discovery based on the needs and circumstances of the case”).
II. CONCLUSION
For the foregoing reasons, Plaintiffs Michael Pohl and Law Offices of Michael A. Pohl
respectfully request that the Court deny Kassab’s Motion, in part; deny Kassab’s Supplemental
RTP Motion; and decline to reconsider prior rulings on Kassab’s Motion to Abatke and Kassab’s
Motion to Compel. l
Dated: March 8, 2023 Respectfully submitted, c
REYNOLDS FRIZZELL LsLP
By: /s/ Jean C. Frizzell
Jean C. Fsrizzell
State Bar No. 07484650
1100 Louisiarna St., Suite 3500
Houston, Texas 77002
Tel. 713.485.7200
Fax 713.485.7250
jfrizlzell@reynoldsfrizzell.com
MAttorney for Plaintiffs Michael Pohl
and Law Office of Michael A. Pohl, PLLC
CEcRTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on all counsel of
record pursuant to the Texasy Rules of Civil Procedure on this 8th day of March, 2023.
/s/ Jean C. Frizzell
a Jean C. Frizzell
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Suni Blue on behalf of Jean Frizzell
Bar No. 7484650
sblue@reynoldsfrizzell.com r
Envelope ID: 73486867
Status as of 3/9/2023 8:36 AM CST
Case Contacts r i
Name BarNumber Email TimestampSubmitted Status
Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 3/s8/2023 7:39:40 PM SENT
Andrew Johnson ajohnson@thompsoncoe.comg3/8/2023 7:39:40 PM SENT
Benjamin Ritz britz@thompsoncoe.com u3/8/2023 7:39:40 PM SENT
Murray JFogler mfogler@foglerbrar.com 3/8/2023 7:39:40 PM SENT
Murray Fogler mfogler@fbfog.comy 3/8/2023 7:39:40 PM SENT
Dale Jefferson 10607900 jefferson@mdjwalaw.com 3/8/2023 7:39:40 PM SENT
Raul Herman Suazo 24003021 suazo@mdjwlaw.com 3/8/2023 7:39:40 PM SENT
Kevin Graham Cain 24012371 cain@mdojwlaw.com 3/8/2023 7:39:40 PM SENT
Todd Taylor ttaylor@jandflaw.com 3/8/2023 7:39:40 PM SENT
Todd Taylor ttayflor@jandflaw.com 3/8/2023 7:39:40 PM SENT
Misty Davis mdavis@reynoldsfrizzell.com 3/8/2023 7:39:40 PM SENT
Lance Kassab peserve@kassab.law 3/8/2023 7:39:40 PM SENT
Harris Wells C hwells@reynoldsfrizzell.com 3/8/2023 7:39:40 PM SENT
Scott M.Favre a l scott@favrepa.com 3/8/2023 7:39:40 PM SENT
Lawyer Wade lawyerwade@hotmail.com 3/8/2023 7:39:40 PM SENT
Andrea Mendez o andrea@kassab.law 3/8/2023 7:39:40 PM SENT
Lance KassabU lance@kassab.law 3/8/2023 7:39:40 PM SENT
David Kassab david@kassab.law 3/8/2023 7:39:40 PM SENT
Nicholas Pierce nicholas@kassab.law 3/8/2023 7:39:40 PM SENT
D Kassab david@kassab.law 3/8/2023 7:39:40 PM SENT
L Kassab lance@kassab.law 3/8/2023 7:39:40 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/8/2023 7:39:40 PM SENT
Kelly Skelton reception@kassab.law 3/8/2023 7:39:40 PM SENT
Murray J. Fogler 7207300 mfogler@foglerbrar.com 3/8/2023 7:39:40 PM SENT"