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36 2022-09-12 RSP Pohl Pohl’s response to Kassab trad MSJ Plaintiffs' Response in Opposition to Traditional Motions for Summary Judgment Filed by Kassab and Nicholson Defendants — comprehensive 38-page response opposing limitations, unlawful acts doctrine, attorney immunity, judicial proceedings privilege, release, TUTSA protection, ownership, and damages defenses Response to traditional MSJs filed by Kassab (Aug. 29, 2022) and Nicholson (Amended, Aug. 29, 2022), four years into litigation. Filed September 12, 2022 at 11:55 PM. Incorporates arguments and evidence from companion no-evidence MSJ response filed same day. Filed by Jean C. Frizzell of Reynolds Frizzell LLP. Notes Court previously denied Kassab's first MSJ (limitations, res judicata, attorney immunity) on August 3, 2021. MSJ-2 N/A Phase 3 2022-09-12_RSP_Pohl-Response-to-Kassab-Trad-MSJ_FILED.pdf Deny the traditional motions for summary judgment filed by Kassab and Nicholson in all respects 9/12/2022 11:55 PM Marilyn Burgess - District Clerk Harris County Envelope No. 68182991 By: Deandra Mosley Filed: 9/12/2022 11:55 PM CAUSE NO. 2018-58419 MICHAEL A. POHL AND LAW OFFICE OF § IN THE DISTRICT COURT OF MICHAEL A. POHL, PLLC, § Plaintiffs, § V. § k § e SCOTT FAVRE and SCOTT M. FAVRE PA, § C l LLC; PRECISION MARKETING GROUP, § HARRIS COUNTY, TEXAS LLC; LANCE CHRISTOPHER KASSAB and § c LANCE CHRISTOPHER KASSAB, P.C. d/b/a § r THE KASSAB LAW FIRM; TINA § s NICHOLSON and BAKER NICHOLSON, § LLP d/b/a BAKER NICHOLSON LAW § s FIRM; and DOUGLAS MONTAGUE III and § s MONTAGUE PITTMAN & VARNADO, P.A., § Defendants. § r189TH JUDICIAL DISTRICT PLAINTIFFS’ RESPONSE IN OPPOSITION TO THE TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT FILED BY THE KASSAB DEFENDANTSl AND THE NICHOLSON DEFENDANTS Plaintiffs Michael Pohl and Law OfMfice of Michael A. Pohl (collectively “Pohl”) respond in opposition to the Traditional Motion for Summary Judgment filed by Defendants Lance Christopher Kassab and Lance Christopher Kassab, P.C., d/b/a The Kassab Law Firm (collectively “Kassab”) and the Amended Traditional Motion for Summary Judgment filed by Tina Nicholson and Baker Nicholson, LLP d/b/a Baker Nicholson Law Firm (collectively, “Nicholson,” and together with Kassab, the “Moving Defendants”). c I. INTRODUCTION On June 8, 2021, Kassab moved for traditional summary judgment on the grounds of limitations, res judicata, and attorney immunity. By order dated August 3, 2021, the Court denied Kassab’s motion. Although nothing has changed relative to the facts relating to the defenses of limitations and attorney immunity, Kassab reargues those issues to the Court. Nicholson likewise asserts limitations and immunity defenses. For the same reasons the Court rejected those defenses in Kassab’s original motions, the Court should reject those defenses again here. The Moving Defendants’ assertion of an “illegal acts” defense fails as both a matter of fact and a matter of law. Both Nicholson and Kassab expend countless breathless pakges and submit dozens of exhibits in an effort to prove what they have been unable to demolnstrate in multiple prior lawsuits and in Texas State Bar Grievances. The claim that Pohl engcaged in acts that violated the Texas Rules governing lawyers has been examined and rejected bsy the State Bar of Texas, and the enormous evidentiary record does not alter that determinatiosn. Instead, it merely exposes once again the Moving Defendants’ overall strategy of muddying the record with extraneous allegations against Pohl, in spite of the Court’s dismissal of all the counterclaims previously asserted against him. The “illegal acts” defense does noat apply because (1) it is preempted by Texas’s proportionate responsibility statute; (2) Pohl’s actions have been adjudicated and were not “admittedly” criminal or unlawful; aned (3) even if a fact issue remained regarding the legality of Pohl’s acts, any wrongful act is fnot sufficiently tied to and is not a proximate cause of Pohl’s claims here to give rise to a dyefense. Nicholson contCends that any torts they committed against Pohl were released as a result of the a confidential settlement agreement, executed in late April and early May 2017 (the “Settlement Agf freement”), that resolved a lawsuit in federal court in Mississippi, styled No. 1:14- cv-381-KUS-JCG, Scott Walker, et al. v. Jimmy Williamson, et al., In The United States District Court For The Southern District of Mississippi, Southern Division (the “Federal Court Case”), in which Tina Nicholson represented Precision, then owned by Favre. Given that Nicholson has flagrantly and repeatedly violated obligations arising from that Settlement Agreement, including by fomenting litigation against Pohl and by failing to return all originals and all copies of materials stolen from Pohl, it is surprising that Nicholson would invoke that agreement here. In any event, the release on which Nicholson relies does not extend to the acts committed here. The Moving Defendants also contend that various forms of immunity proktect them from this suit, but their arguments fail as a matter of law. The attorney immunityl doctrine does not protect lawyers from claims of conversion and theft of trade secrets comcmitted when they were not representing any client. Similarly, the “judicial proceedings privislege” does not apply to those torts in that context. s  The final two defenses that the Moving Defendants assert in their traditional motions for summary judgment are Pohl’s alleged failure to protect his trade secrets by requiring a confidentiality agreement, and an argument that the damages Pohl seeks are not available as recompense for misappropriation of trade secarets and conversion. Both defenses fail as a matter of law and as a matter of fact.  I. FeACTUAL BACKGROUND1 Pohl represented variousf persons and entities in claims arising from motor vehicle accidents and the British Peytroleum Deepwater Horizon oil spill (“BP Matter”).2 Pohl engaged Precision Marketing GCroup, LLC (“Precision”) to provide public relations services, to gather and preserve evidence, a and to screen and liaise with Pohl’s clients and prospective clients.3 While working for Pfofhl, Precision naturally gained access to Pohl’s confidential and proprietary informatiUon and property, including trade secret materials.4 Scott Favre, individually and/or 1 Pohl incorporates by reference both the arguments and evidence contained in his Response to the No-Evidence Motions for Summary Judgment that is filed on the same day as this Response. 2 Sworn Declaration of Michael A. Pohl (the “Pohl Declaration”) ¶ 2, attached as Exhibit A. 3 Id. ¶ 9. 4 Id. through Scott M. Favre PA, LLC (collectively “Favre”) is the managing member of Precision.5 Favre took physical copies of Pohl’s information, and took possession of Pohl’s stolen computers and misappropriated electronic data.6 In November 2016, facilitated by Nicholson, Kassab and Douglas Mokntague III and Montague, Pittman & Varanado, P.A. purchased Pohl’s stolen confidentiall information and property from Favre for a whopping $250,000, plus bonuses,7 taking poscsession of at least some of the information and property in December 2016.8 The Moving Defsendants highly valued Pohl’s stolen and misappropriated confidential information and propertys because, after purchasing it, they intended to and did contact and solicit Pohl’s clients and prospective clients.9 These actions constitute conversion, violations of the uniform trade secrets act (“TUTSA”), and conspiracy. Pohl timely brought this lawsuit alleging those torts on August 28, 2018.10 The Barraatry Allegations Although any attempt to relitigate the failed barratry allegations should not be permitted (and will be the subject of appropriaete motions in limine and evidentiary objections), and Pohl hesitates to give the allegations unfnecessary attention, Pohl will address those claims briefly below out of an abundance of cautiyon and to not leave the inaccurate, and often purposefully misleading, allegations unrebuttedC. While the problems and misstatements contained in Kassab’s and 5 Id. ¶ 24. 6 Id. ¶¶ 24–25. 7 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration (Exhibit A). 8 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration (Exhibit A). 9 The defendants have admitted using Pohl’s client files (while erroneously claiming that they belonged to Precision Marketing) to contact Pohl’s clients and former clients to solicit them to file claims against Pohl. See Declaration of Lance Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018, Exhibit B; Kassab Deposition 130:3-21 (admitting that Kassab attached Pohl’s fee agreements with Pohl’s clients that he obtained from Precision to solicitation letters that Kassab sent to Pohl’s clients), Exhibit C. 10 See generally Pohl’s Original Petition, filed August 28, 2018. Nicholson’s motions could result in an 80-page response, Pohl will address a few key issues and rely upon his declaration to further rebut the allegations. Precision, before the sale to the Favre parties, was owned and run by Kirk Ladner, Steve Seymour, and Scott Walker.11 At the time that Pohl retained Precision, Preckision made the following representations to Pohl: l • That Precision had considerable experience in working wcith many law firms and could provide marketing and public relations services, gather and preserve evidence and act as a liaison with Pohl’s clientss;12 • That Precision operated under the guidancge of experienced Mississippi attorneys to ensure the propriety of their marketBing activities;13 • That Precision would organize anyd host festivals, town hall meetings and other gatherings to appropriately edaucate the public as part of their marketing efforts;14 • That Precision would traifn  and supervise the Precision staff so as to ensure optimal results and complian e ce with the rules governing their marketing activities.15 Mr. Pohl and Mr. WilOliafmson relied on these representations in moving forward with Precision’s principals and entered into services agreements that provided for an hourly rate for services that was cappCed at a percentage of Pohl’s fees.16 Precision worked out of an office 11 Pohl Declaration ¶¶ 5-8, 24, Exhibit A. 12 Pohl Declaration ¶¶ 5, 9, 25. 13 Pohl Declaration ¶¶ 10, 20. The evidence still supports this representation. As Walker testified less than two weeks ago: “We ran [the contracts between Precision and Pohl] past multiple law firms and they all approved those.” Deposition of Scott Walker, at 209:25-211:9, attached as Exhibit D. 14 Pohl Declaration ¶ 21. 15 Pohl Declaration ¶ 21. 16 Pohl Declaration ¶ 18; see also Exhibit 2 to the Kassab Motion (attaching a later example of such an agreement). supplied by Pohl and Precision’s owners and staff were Pohl’s agents facilitating the rendition of Pohl’s and Williamson’s legal service.17 Precision did not live up to expectations. Precision committed the following misconduct: • Referred certain clients to other lawyers when they were supposed kto be providing services full time to Pohl and Williamson; C l • Fabricated expenses to overcharge Pohl for fraudulent expcense reimbursements; • Systematically overcharged Pohl in violation of the services agreements; • Failed to keep time records as both required sby the services agreements and repeatedly requested by Pohl. g • Brought suit in Mississippi Federal CBourt claiming Precision was underpaid for their marketing and public relatioyns services. Precision initially (and correctly) argued that they were paid by a hourly fee.18 When their lack of supporting time records became a problemf and when Nicholson became involved in the litigation, their position changed to that they were guaranteed a percentage of the fee.19 As will be addressOed below, it was Nicholson who raised the issue of barratry, provided the Precision witnesses scripts to follow to assert barratry allegation, and threatened witnesses unless they delivered the scripted testimony concocted by hier. • o fPrecision then stole Pohl’s client files, information and computers so that they could sell them ostensibly as part of a sale of Precision to Favre with Favre then 17 Pohl Declaration ¶ 14 (discussing how Precision’s principals acted as the functional equivalent of employees). 18 See Original Complaint in MS Lawsuit, at 5-6, attached as Exhibit 4 to the Nicholson Motion (discussing how Precision was entitled to “hourly fees”). 19 See Amended Complaint in MS Lawsuit filed March 17, 2016, at 12-13, attached as Exhibit E (including different allegations that Precision was entitled to a percentage of fees, not an “hourly rate”). acting as managing member of Precision to move forward with a concerted scheme to bring barratry claims against Pohl, Williamson and a third lawyer Rob Ammons. After the sale of Precision to Favre, Nicholson represented Favre, Precisiokn and the three individuals (Ladner, Seymour and Walker) and actively suborned perjury. It lis against this back drop that Kassab and Nicholson have selectively pulled testimony capparently scripted by Nicholson and designed to further Precision’s claims in the Mississisppi suit and provide support for the barratry lawsuit scheme—now largely recanted—to suppsort their assertion of barratry. The Multiple Grievances As a starting point, it is important to note that all of the allegedly illegal acts argued by Kassab and Nicholson were the subject of a grievance brought by Kassab against Pohl individually, as well as multiple grievances brought by Kasasab as counsel for former clients of Pohl that Kassab had solicited after purchasing Pohl’s files. Kassab, in a manner very similar to the course chosen by Kassab and Nicholson for their Meotion for Summary Judgment, submitted over 60 pages of argument for his individual grievfance and over 2,300 pages of exhibits. However, once Pohl had an opportunity to respond ywith the actual facts and by pointing out the misstatements and fabrications in Kassab’Cs submissions, Pohl was cleared of any wrongdoing: The Kassab a Grievance: State Bar of Texas: Summarily Dismissed.20 The Chf f eatham Grievance: U• State Bar of Texas: “This office has examined the Grievance and determined that the information alleged does not demonstrate Professional Misconduct or a Disability.21 20 See Nov. 15, 2019 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. F, at 12. 21 See Feb. 24, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. G, at 11. • The Board of Disciplinary Appeals: “After reviewing your grievance as you originally filed it and no other information, the Board has determined that the conduct you described in the grievance does not violate the Texas Disciplinary Rules of Professional Conduct.”22 k The Bikumbu Grievance: C l • State Bar of Texas: dismissed on limitations grounds:23 c • The Board of Disciplinary Appeals: “After reviewing your grievance as you originally filed it and no other information, thse Board has determined that the conduct you described in the grievance doges not violate the Texas Disciplinary Rules of Professional Conduct.”24 B The Speck Grievance: y • State Bar of Texas: dismissed oan limitations grounds:25 • The Board of Disciplinafry Appeals: “After reviewing your grievance as you originally filed it and no other information, the Board has determined that the conduct you deOscribed in the grievance does not violate the Texas Disciplinary Rules of Professional Conduct.”26 The Berry Grievance: • Statie Bar of Texas: dismissed on limitations grounds:27 • o f The Board of Disciplinary Appeals: “After reviewing your grievance as you originally filed it and no other information, the Board has determined that the 22 See May 14, 2020 Letter from The Board of Disciplinary Appeals, Ex. H, at 5. 23 See Jan. 14, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. I, at 10. 24 See April 10, 2020 Letter from The Board of Disciplinary Appeals, Ex. J, at 4. 25 See Jan. 9, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. K, at 8. 26 See April 10, 2020 Letter from The Board of Disciplinary Appeals, Ex. L, at 1. 27 See Jan. 9, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. M, at 7. conduct you described in the grievance does not violate the Texas Disciplinary Rules of Professional Conduct.”28 The Miller Grievance: • State Bar of Texas: “This office has examined the Grievance and kdetermined that the information alleged does not demonstrate ProfessionCall Misconduct or a Disability.”29 c • The Board of Disciplinary Appeals: “After reviewing your grievance as you originally filed it and no other information, thse Board has determined that the conduct you described in the grievance doges not violate the Texas Disciplinary Rules of Professional Conduct.”30 B Undeterred, Kassab and Nicholson rely yheavily for their allegations of barratry upon portions of testimony from Scott Walker takaen from his 2016 deposition in the Mississippi suit when: a) he was trying to obtain funds from Pohl and Williamson; b) he was represented by Nicholson; and c) he was directed by Nicholson on what he should and should not say including the instruction to pepper his testimfony with barratry allegations.31 Q. (Kassab) Now, I hear what you said. You said that Tina Nicholson prepared you for the deposoition. Is that what I heard? A. (Walker) Yes Q. And idid Ms. Nicholson tell you to lie? A. She just told us things, buzz words to say. I had never heard the word “barratry” before, “cold calling.” Those were the things Ms. Nicholson wanted us to say throughout the deposition as much as we could.” Q. Do you recall my question? 28 See April 10, 2020 Letter from The Board of Disciplinary Appeals, Ex. N, at 2. 29 See Jan. 9, 2020 Letter from State Bar of Texas: Office of the Chief Disciplinary Counsel, Ex. O, at 9. 30 See April 10, 2020 Letter from The Board of Disciplinary Appeals, Ex. P, at 3. 31 See Deposition of Scott Walker, at 198:19-199:19, 203:15-204:23, Exhibit D. A. What was it? Q. I asked you if Ms. Nicholson instructed you or told you to lie in the deposition. A. Yes. Q. Okay. And is it your testimony today that you, in fact, perjured yourself in the deposition by lying? A. No. r Q. Well, did you lie in the deposition? C A. I listened and did what my attorney said to do.32 t This is a stunning admission given that Walker is an ex-felon.t He went on to testify that he did not knowingly intend to lie but relied upon the advice of Nicholson to give the testimony he gave.33 e Kassab and Nicholson also rely heavily on a uSeptember 24, 2016 affidavit and some testimony by Magdelena Santana. While Kassab annd Nicholson do mention that she swore out an additional affidavit, they do not describe it accur irately. Nor do they mention Ms. Santana’s letter sent to Judge Starett in Mississippi (among other recipients) and the taped conversation that occurred solely between Ms. Santana and Kassab. Ms. Santana’s letter statedf ais follows:34 32 See Deposition of Scott Walker, at 203:15-204:23 (emphasis added), Exhibit D. 33 See Deposition of Scott Walker at 205:1-14, Exhibit D; see also Deposition Instructions to Walker, attached as Exhibit Q (used as Walker Ex. 69 in the deposition); Deposition of Scott Walker at 347:20-350:7, Exhibit D (authenticating Walker Ex. 69). 34 See October 3, 2017 letter from Magdalena Santana copying Judge Starett, attached as Exhibit R. 10 The private call between Kassab and Santana, secretly recorded by Kassab on August 15th, 2017 confirms her letter to Judge Starret and reflects the pressure brought to bear by Nicholson and Favre against Ms. Santana: …I’m still going through emotional distress. Recently I just finished that subpoena, going to be a year in November, with the whole scenario that they promised cthat I would – the firm, Tina Nicholson and Scott [Favre], they signed the documefnft that said that if I testified – actually they were calling my mom’s house, calling me, saying that if I didn’t come and testify, that I was going to be in trUouble, that they were going to go send – subpoena my brother. I don’t know. It’s been super-stressful. It’s been super stressful. They’ve been calling and telling me all kinds of stuff. And I agreed to go and testify just to avoid any type of problems to come to my family, to my mother’s house and my brother’s house in the fact – and due to the fact that they were going to pay me what was owed, they got settled money and then they just kicked me to the curb.35 35 See Audio Transcription dated August 15, 2017, at pp. 6-7, attached as Exhibit S. 11 And although Kassab sought to coax Santana into supporting the claim that Pohl and Williamson were involved in an alleged barratry scheme, Santana rejected that contention as well: MR. KASSAB: My understanding is Williamson Pohl set up the scheme. I thought that’s what you told me. MS. SANTANA: The marketing firm is the one that hired me. I didn’t eeven go out and meet Pohl and Williamson during the course of that whole thing…l.36 Kassab and Nicholson also assert that Pohl paid Santana $50,00c0 and imply that it was payment to retract her September 14, 2016 affidavit and to sign her Dsecember 19, 2017 affidavit. This is not only false but is clearly designed to mislead the Cousrt. The actual facts surrounding the disturbing story of Ms. Santana are as follows. Ms. Santana wrote/signed the relevant agreements, correspondence and affidavits on the following dates: May 21, 2014: Santana/Walker eat al./Pohl release and non-disparagement agreement a/k/a “sworn statement” M(Santana is paid $50,000 as consideration). September 24, 2016: Santana’s “ffirst affidavit” (prepared by Tina Nicholson) October 3, 2017: Santana’s eletter to Favre/Nicholson/Judge Starrett (stating she was coerced into signing thec “first affidavit”) December 19, 2017: SOantana’s “second affidavit” (retracting the “first affidavit”). The Moving Defendants’ reliance on testimony from a retracted affidavit demonstrates that their Motions are not to be tCaken seriously. II. ARGUMENT A. The Efvidence Cited by the Moving Defendants Is Not Competent Summary Jundgment Evidence and Pohl Objects to Consideration of It. As a threshold matter, the Moving Defendants rely on numerous inadmissible deposition transcripts taken in other lawsuits, many of which involve persons who are not parties to this lawsuit. Additionally, the exhibits attached to Kassab’s Motion are not properly authenticated as 36 Id. at 3-4. 12 evidence, as the attached declaration incorrectly claims that everything attached to Kassab’s Motion are business records of Kassab’s firm. The lack of seriousness with which the Moving Defendants approach summary judgment evidence is not surprising, given that the motions also rely on controverted evidence, which cannot support a traditional motion for summkary judgment. The Moving Parties cite to numerous deposition transcripts from plrior lawsuits that constitute inadmissible hearsay that the Court should disregard. The Tcexas Rules of Evidence provide an exclusion from the hearsay rule for testimony from a desposition “taken in the same proceeding.” TEX. R. EVID. 801(3). However, deposition testims ony from a different proceeding is inadmissible unless it falls within an exclusion to the hearsay rule. See Taylor v. Baylor Scott & White Med. Ctr.-Frisco, No. 05-20-00352-CV, 2022 WL 405896, at *3 (Tex. App.—Dallas Feb. 10, 2022, no pet.) (“Because the record establishes that Dr. Carmody’s deposition testimony is not from the same proceeding, and the deposaition did not fall within any exclusion to the hearsay rule, the trial court did not abuse its discretion in excluding this evidence.”). Kassab cites to eight differenet inadmissible deposition transcripts from prior lawsuits.37 These are not tangential to Kassfab’s Motion, as he cites to these inadmissible depositions well over a hundred times. See gyenerally Kassab’s Motion. Nicholson’s Motion fares a little better. She cites to four diffeCrent inadmissible deposition transcripts from prior lawsuits38 well over a dozen times. See generally Nicholson’s Motion. Furthermore, Kassab incorporated Nicholson’s briefing and evfifdence. See Kassab’s Motion, at 2. Pohl objects to these exhibits, and the Court should exUclude all of this inadmissible evidence and deny the Motions as insufficient on this ground alone. 37 See Kassab Ex. 3-A; Kassab Ex. 3-B; Kassab Ex. 4; Kassab Ex. 7; Kassab Ex. 8; Kassab Ex. 15; Kassab Ex. 25; Kassab Ex. 39. 38 See Nicholson Ex. 18; Nicholson Ex. 19; Nicholson Ex. 25; Nicholson Ex. 26. 13 Pohl also objects on the grounds that Kassab’s Motion improperly attempts to authenticate evidence as business records without proper support. Despite attaching 60 exhibits, which include items like contracts to which Kassab is not a party39 and correspondence between third parties,40 Kassab attempts to authenticate all of the exhibits by stating: k Attached to the Motion are true and correct copies of documents whichl were either exchanged in discovery in the Barratry Litigation, including document production and depositions, or used in the Barratry Litigation, like declacrations from my clients. These documents are considered business records of the Frirm and have been kept in the regular course of business. The records attached tos the Motion are exact duplicates.41 D First, this does not satisfy the requirements of a business recsords affidavit. See TEX. R. EVID. 902(10). Furthermore, much of the evidence cannot satisfry the requirements of a business record, as there is no way for David Kassab to be familiar with the creation of items that were produced in discovery by other parties and whether “the relcord was made at or near the time by—or from information transmitted by—someone withM knowledge.” See TEX. R. EVID. 803(6)(A). Because they are not properly aouthenticated as evidence, the Court should not consider Kassab Exhibits 2-5, 7-8, 10-15, 17c, 20-21, 23-28, 30-34, 36-38, 40, & 51. B. Pohl’s Claims are Not Barred by Limitations. Pohl’s claims against the Moving Defendants accrued no earlier than November 2016 because they arise from the November 2016 purchase—and subsequent use—of information and property stolen frcom Pohl. As no claim has a limitations period of less than two years, and Pohl brought this lawsuit in August 2018, Pohl’s claims are not barred. 39See, e.g., Kassab Exhibits 26 & 31. 40 See, e.g., Kassab Exhibit 38. 41 See Declaration of David Kassab ¶ 5, attached as Exhibit 1 to the Kassab Motion. 14 1. The summary judgment standard for the affirmative defense of limitations. Defendants seeking summary judgment on limitations bear the burden of proof and must conclusively prove when each of the alleged causes of action accrued. See Regency Field Services, LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 818 (Tex. 2021) (“a defkendant seeking summary judgment based on limitations must conclusively establish that thel limitations period expired before the claimant filed suit”). “Generally, a claim accruecs when the defendant’s wrongful conduct causes the claimant to suffer a legal injury, which gsives the claimant the right to seek a judicial remedy.” Id. Texas courts apply specific tests to determine the accrual of certain claims, including the three claims at issue here. A claim for conversion generally accrues at the time of the defendant’s “unlawful taking” of the plaintiff’s property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App.—Houston [1st Dist.] 2006, no pet.). When property is alleged to have been converted and then transferred to another party, “each possession is a new conversion.” Pemex Exploracion y Produccion v. BASF Corp., CIV.A. H-10-1997, 2013 WLe 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (citation omitted) (applying Texas law). There is a ftwo-year limitations period for conversion. See TEX. CIV. PRAC. & REM. CODE § 16.003(a). y “A cause of acCtion for trade-secret misappropriation accrues when the trade secret is actually used. Use aof the trade secret means commercial use by which the offending party seeks to profit from thfe use of the secret.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721–22 (UTex. 2016) (cleaned up). There is a three-year limitations period for TUTSA violations. See TEX. CIV. PRAC. & REM. CODE § 16.010(a). The civil conspiracy claim is derivative of the underlying torts, and it accrues “as to each alleged underlying tort when that tort occurs.” Agar Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 145 (Tex. 2019). 15 2. Pohl’s claims accrued within two years of the initiation of this suit. Pohl brought suit on August 28, 2018.42 Because Pohl’s conversion claim accrued after August 28, 2016 and Pohl’s TUTSA claim accrued after August 28, 2015, the affirmative defense of limitations fails. k Pohl’s conversion claim arises from Defendants’ purchase and slubsequent use of information and property that they knew had been stolen from Pohl. Seec Amended Complaint ¶¶ 36–38.43 The evidence shows that Defendants made this purchasse through a contract dated November 10, 2016.44 The Defendants took possession of at least some of Pohl’s information and property no earlier than that date and mostly beginning in De e cember 2016.45 Pohl’s conversion claim accrued when the Defendants obtained Pohl’s property. See Burns v. Rochon, 190 S.W.3d 263, 271 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Contrary to the Defendants’ arguments, a prior claim for conversion against other individuals or entities is entirely irrelevant, as “each possession is a new conversion.” Pemex Exploracion y Produccion v. BASF Corp., CIV.A. H-10-1997, 2013 WLe 5514944, at *31 (S.D. Tex. Oct. 1, 2013) (emphasis added) (applying Texas law). Defendafnts’ liability did not accrue when other people and entities committed wrongs against Pyohl; that liability accrues when Defendants themselves committed the tortious acts. BecauseC the contract to purchase the property is dated in November 2016,46 and Kassab was still acaquiring possession of the stolen property in December 2016,47 Pohl’s claim against Kassab ffor conversion accrued, no earlier than November 2016—well within the two-year period. U 42 See generally Pohl’s Original Petition, filed August 28, 2018. 43 See also November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration. 44 Id. 45 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration. 46 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration. 47 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration. 16 Pohl’s TUTSA claim is based on Defendants’ knowing purchase and subsequent use of stolen trade secrets. See Amended Complaint ¶¶ 39–42. Pohl’s TUTSA claim accrued upon the Defendants’ use of Pohl’s stolen trade secrets. See Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721–22 (Tex. 2016). For Defendants to obtain summary judgmentk on limitations, they must conclusively show that Pohl’s TUTSA claim against accrued prior tlo August 28, 2015. See TEX. CIV. PRAC. & REM. CODE § 16.010(a) (providing a three-year limcitations period). Pohl’s claims accrued no earlier than November 10, 2016, as that is the date osf the contract through which Defendants purchased Pohl’s trade secrets.48 Given that Defensdants had not collected all of the materials by December 7, 2015,49 their use of Pohl’s trade secrets—and the accrual of Pohl’s TUTSA claim—occurred after November 10, 2016. 3. The arguments and evidence about the actions of others are irrelevant to the Moving Defendants’ limitations defense. l Kassab and Nicholson focus on wrMongful conduct by others—conduct that does not give rise to Pohl’s claims in this lawsuit—too argue that limitations bars Pohl’s claims. See Nicholson Defendants’ Motion at 36-40; Kascsab Defendants’ Motion at 45-51. However, in determining when claims accrued against a defendant, it is that defendant’s alleged wrongful conduct that is relevant, not the conduct of others. Defendants’ participation in the sale and purchase of Pohl’s information, through a contract dated in November 2016, and their subsequent use of that information is thec conduct that gives rise to Pohl’s claims. See Amended Petition ¶¶ 21–23, 26– 29, 33.50 D o efendants’ arguments suggest a sort of reverse discovery rule—i.e., they hope to convince the Court that because Pohl allegedly knew that others may have stolen and otherwise 48 November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration. 49 December 7, 2016 Email, attached as Exhibit 2 to the Pohl Declaration. 50 See November 10, 2016 Agreement, attached as Exhibit 1 to the Pohl Declaration; Declaration of Lance Christopher Kassab, attached as Exhibit 1 to Kassab’s Motion to Dismiss, filed October 24, 2018, attached as Exhibit B. 17 mistreated certain of his trade secrets and other property belonging to him, his causes of action for separate torts by these Defendants accrued before any Defendants had even committed the torts for which Pohl seeks to recover. The discovery rule does not operate to shorten the statutory limitations period to cause a claim to accrue before the defendant commits a tort. k Even if the wrongful conduct of others (that did not give rise to Polhl’s claims) were somehow relevant to a limitations defense—and it is not—the Movincg Defendants have not factually established that Pohl “knew or in the exercise of reasonable dsiligence should have known of the wrongful act and resulting injury” more than three years psrior to this lawsuit for his TUTSA claim and more than two years prior for the conversion claim. See Regency Field Services, LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 817 (Tex. 2021). Nicholson argues that Pohl knew or should have known that Precision stole the trade secrets in 2014 or that Favre claimed ownaership of the trade secret documents and Pohl’s computers by no later than May 2015. She does not explain, however, how that knowledge can possibly trigger limitations on sepaerate torts committed by Nicholson. She cites case law indicating that trade secrets claimfs are not continuing offences and that “the wrong occurs at the time of the improper acquisiytion.” Nicholson Defendants’ Motion at 42. Pohl agrees—the wrong occurred no earlier thaCn the time of the improper acquisition of the trade secrets, no earlier than November or December 2016. How could Pohl have known about that in May 2015 when it had not even happef fned yet? SiUmilarly, Kassab argues that “at least of May 2015, Pohl knew that Walker and Ladner had transferred the alleged trade secrets to Favre.” Such knowledge, even if established, does not address a claim of conversion or theft of trade secrets committed by Kassab. Kassab also purports to negate the application of the discovery rule through Pohl’s testimony. The evidence Kassab 18 cites suggests only that Pohl may have had knowledge of some wrongful conduct by some individual or individuals that occurred in 2014.51 It does not address when Pohl knew of Kassab’s own wrongful conduct.52 Again, the discovery rule does not cause limitations to commence before the defendant has even committed the wrongful act for which the plaintiff sues. k As much as they struggle to establish their limitations defense as a maltter of law, Kassab and Nicholson have at most raised a question of fact regarding the acccrual date of the asserted causes of action. Indeed, the evidence is undisputed that as to Kassabs and Nicholson, the dates of their torts are well within the statutory limitations period. Thse Court should deny the Moving Defendants’ Motions to the extent that they are based on limitations. C. The Unlawful Acts Doctrine53 is not legally available or factually established. The Moving Defendants expend pages and pages and submit volumes of exhibits— including exhibits that are not competent evidaence—attempting to establish their contention that Pohl committed various violations of the Texas Rules. See Nicholson Defendants’ Motion at 3- 25; Kassab Defendants’ Motion at 3-3e2. Apparently disappointed in their inability to successfully present this collection of materifals in their failed efforts to obtain a judgment against Pohl— through separate failed lawsuyits—they are attempting to salvage some value out of it by submitting to the Court in this caseC. This “evidence” has no place here. It is irrelevant, it establishes nothing as a matter of law, and it is simply an attempt to distract from the Moving Defendants’ patently 51 See Exhibit 58 to Kassab’s Motion (discussing Pohl’s knowledge and contentions made in May 2018). 52 See generally id. What Pohl’s prior testimony shows is that he was contending that, at that time, he believed Kassab had conspired with individuals who had previously wronged Pohl. As a co-conspirator, Kassab would thus be responsible for their acts. A past belief about conspirator liability does not change the fact that Kassab’s wrongful conduct took place within the limitations period. 53 The Moving Defendants variously characterize this defense as the “illegal acts rule,” the “unlawful acts doctrine,” “in pari delicto” and “equity.” This section of Pohl’s response covers each of those defenses, as they are treated as interchangeable by the Moving Defendants. 19 tortious acts. Furthermore, to the extent that the doctrine could have applied, it is preempted by Texas’s proportionate responsibility statute. 1. The Unlawful Acts Doctrine is preempted. To the extent that the unlawful acts doctrine could have any relevance tok this case, it is preempted by Texas’s proportionate responsibility statute. In Dugger v. Arrledondo, the Texas Supreme Court explicitly considered “whether the common law unlawful cacts doctrine is available as an affirmative defense under the proportionate responsibility framsework.” 408 S.W.3d 825, 831–32 (Tex. 2013). The Court found that "it is not,” and thast “[t]he plain language of section 33.003 clearly indicates that the common law unlawful acts doctrine is no longer a viable defense.” Id. at 832. The claims alleged against the Moving Defendants, conversion, theft of trade secrets, and conspiracy, are torts that are subject to the praoportionate liability statute. See TEX. CIV. PRAC. & REM. CODE § 33.002. Kassab clearly thinks this statute applies as well, as he filed a flawed motion to designate responsible third partiees under this statute. See generally Kassab’s Motion to Designate Responsible Third Parfties, filed May 13, 2022. While Kassab is incorrect that people other than defendants in this ylawsuit are responsible for the damages Pohl seeks, he cannot dispute that the unlawful acts dCoctrine is not a valid defense in this lawsuit. 2. Even if not preempted, the Unlawful Acts Doctrine does not apply in this case. Under Tf fexas law, the concepts of “unlawful acts,” “illegal acts rule,” or “in pari delicto” provide tUhat “no action may be predicated upon an admittedly unlawful act of the party asserting it.” Denson v. Dallas Cnty. Credit Union, 262 S.W.3d 846, 855 (Tex. App.—Dallas 2008, no pet.) (emphasis added). Courts have interpreted this defense to mean that if the illegal act is inextricably intertwined with the claim and the alleged damages would not have occurred but for the illegal act, 20 the plaintiff is not entitled to recover as a matter of law.” See Sharpe v. Turley, 191 S.W.3d 362, 366 (Tex. App.—Dallas 2006, pet. denied). An examination of the caselaw—including the caselaw cited by the Moving Defendants— shows that courts apply the doctrine when “at the time of the plaintiff’s injury, tkhe plaintiff was engaged in an illegal act, and that act contributed to the injury.” Andrew Sheblay & Co., P.L.L.C. v. Bishop, 429 S.W.3d 644, 648–49 (Tex. App.—Houston [1st Dist.] 20c13, pet. denied); Kassab Defendants’ Motion at 62 (citing Bishop). It is not enough to plausibsly connect a claim to illegal conduct, courts look at whether the plaintiff’s claim is prediscated on and must be proven in connection with an illegal act. See Carcamo-Lopez v. Does 1 through 20, 865 F. Supp. 2d 736, 767 (W.D. Tex. 2011) (“But when the illegal conduct arises in a defense and not in the plaintiff’s case, the unlawful acts rule will not bar a plaintiff’s claims.”). As an initial matter, there is no “admitatedly unlawful act” that would allow the application of the doctrine. See Macias v. Moreno, 30 S.W.3d 25, 29 (Tex. App.—El Paso El Paso 2000, pet. denied). In addition, any alleged unlaewful act was not inextricably intertwined with Pohl’s causes of action. To determine whether tfhe illegal act is “inextricably intertwined” courts look to whether “whether the person seekingy to enforce [his claim] requires any aid from the illegal transaction to establish his case.” SeCe Marathon Oil Co. v. Hadley, 107 S.W.2d 883, 885 (Tex. Civ. App. 1935) (quotation omitted). No recof fvery can be had if it is necessary for the plaintiff to prove, as part of his cause of action, his own illegal contract or other illegal transaction. But the plaintiff mUay recover if he can show a complete cause of action without being obliged to prove his own illegal act, although such act may incidentally appear, and may be explanatory even of other facts in the case, it being sufficient if his cause of action is not essentially founded upon something which is illegal. Id. See also Macias, 30 S.W.3d at 29 (“However, if a party can show a complete cause of action without being obliged to prove their own illegal act, although the illegal act may appear 21 incidentally and may be important in explanation of other facts in the case, they may recover.”). Pohl can certainly demonstrate the elements of each of his claims without being required to prove any illegal act.54 Nothing about Pohl’s claims requires him to show that his client contracts are enforceable or are free from any alleged barratrous activity. He owns his own kclient contracts regardless of how he procured them. l Another impediment to the application of the unlawful acts thec Texas Supreme Court clarified long ago that the illegal act must have been a proximate casuse of the plaintiff’s injury. Pyeatt v. Anderson, 269 S.W. 429, 430 (Tex. Comm’n App. 1s925); Arredondo v. Dugger, 347 S.W.3d 757, 761–62 (Tex. App.—Dallas 2011), aff’d 408 S.W.3d 825 (Tex. 2013); Petta v. Rivera, 985 S.W.2d 199, 204 (Tex. App.—Corpus Christi–Edinburg 1998), rev’d on other grounds sub nom. Texas Dep’t of Public Safety v. Petta, 44 S.W.3d 575 (Tex. 2001). Even crediting the Moving Defendants’ arguments, any illegal act by Paohl is not the proximate cause of Pohl’s injuries. Instead, the cause of his injuries were the tortious acts of the Moving Defendants. The illegal acts doctrine is noet applicable to Pohl’s claims as a matter of law. Whether Pohl committed any of the acts thef Moving Defendants allege (and he did not) is in no way relevant to Pohl’s claims against themy. It is nothing more than a side-show. And, as set forth below, the Moving Defendants haCve wholly failed to establish their defense as a matter of fact. 3. Kassab’s use of caselaw on the unlawful acts doctrine is misleading. Kassabf fcontends that “Texas courts have applied the Unlawful Acts Rule to preclude claims arUising from barratry.” Kassab’s Motion, at 64 (emphasis removed). They cite to Truyen Luong v. McAllister, No. 01-17-00198-CV, 2018 WL 3651103 (Tex. App.—Houston [1st Dist.] 54 As addressed more fully below, the Moving Defendants’ strident contentions that Pohl obtained the client lists and other property and materials through “illegal acts” are false, as evidenced by the failure of both the grievance procedure and their barratry suits. 22 Aug. 2, 2018, pet. denied). Id. But Kassab’s discussion of McAllister has no bearing on this lawsuit. McAllister dealt with a non-lawyer suing to recover compensation under an agreement where all parties admitted the compensation was a percentage of a lawyer’s fees. McAllister, 2018 WL 3651103, at *2. The court held that “the contract was void due to illegality.” k Id. at *4. Pohl is not attempting to enforce any client agreement or agreement with anyone whlo worked for him. The fact that a court refused to enforce a contract that was admittedly illecgal is not surprising, and it provides no guidance in this case. s 4. The Moving Defendants have not and cannot establissh that Pohl committed illegal acts. The Moving Defendants allege that their torts are excused because Pohl allegedly violated the Texas Rules governing lawyers in four ways: (1) practicing law in other jurisdictions without a license; (2) sharing an office with non-lawyers; (3) illegally soliciting clients; and (4) failing to protect confidential client information. Saee Nicholson Defendants’ Motion at 1; Kassab Defendants’ Motion at 2. Although the Moving Defendants go to some length in their effort to establish these allegations as a mattere of law, they have wholly failed to do so. At most, they have raised a fact issue regarding wholfly irrelevant allegations. Before addressing tyhe individual allegations relating to Pohl’s actions, it deserves repeating: these allegCed actions were brought to the attention of the relevant authorities through grievance a s filed with the State Bar of Texas, which dismissed the grievances.55 For those grievancfefs that were appealed to the Board of Disciplinary Appeals, that Board rendered findings tUhat “the Board has determined that the conduct you described in the grievance does not violate the Texas Disciplinary Rules of Professional and affirms the dismissal.” The contention that Pohl violated the Texas Rules governing lawyers has been determined, and the 55 See Grievance dismissal letters, attached as Exhibit T. 23 claim has failed. This Court should decline to rehear these allegations, as they have been resolved. Furthermore, as set forth below, they are false. a. Pohl did not engage in unauthorized practice of law. The State Bar of Texas appropriately dismissed claims against Pohl krelating to the unauthorized practice of law because Pohl at all times attempted to conform tlo the requirements relating to practicing in states in which he was not licensed.56 Moreovcer, the process for filing claims relating to the BP Matter did not even require that a licensesd attorney participate in the filing.57 The materials that the Moving Defendants have submitted do not conclusively establish that Pohl engaged in the unauthorized practice of law. Instead, to the extent that the question can even be considered by this Court, given that the State Bar of Texas has finally resolved the issue, there is substantial controverting evidence. Aaccordingly, the allegation does not provide a basis on which to enter summary judgment in the Moving Defendants’ favor. b. Pohl shared office space weith contractors and secretaries who worked for him full time. The Moving Defendants afttack Pohl for sharing office space with non-lawyers. Here again, the State Bar of Texas propeyrly dismissed the claim because Pohl employed everyone with whom he shared an office, Cor they were a functional equivalent of an employee or a lawyer’s representative.58 a The maf fterials that the Moving Defendants have submitted do not support much less conclusivUely establish that Pohl wrongfully shared office space with non-lawyers. Instead, to the extent that the question can even be considered by this Court given that the State Bar of Texas has 56 Pohl Declaration, ¶ 17. 57 Id. ¶ 29. 58 Id. ¶ 14. 24 finally resolved the issue, there is substantial controverting evidence. Accordingly, the allegation does not provide a basis on which to enter summary judgment in the Moving Defendants’ favor. c. Pohl legally solicited his clients. Pohl instructed all of those working for him as subcontractors never to illegkally solicit any potential client.59 Pohl himself never intentionally directly or illegally solilcited any client or clients.60 Pohl at all times attempted to adhere to the rules of the Statec Bar of Texas and other relevant states regarding the solicitation of clients.61 s The materials that the Moving Defendants have submitsted do not conclusively establish that Pohl illegally solicited clients. Instead, to the extent that the question can even be considered by this Court given that the State Bar of Texas has finally resolved the issue, there is substantial controverting evidence. Accordingly, the allegation does not provide a basis on which to enter summary judgment in the Moving Defendantsa’ favor. d. Pohl reasonably protected client information. Pohl testified in his depositioen regarding the reasonable steps he took to protect the client information, confidential informaftion, and trade secrets that are the subject matter of this suit.62 At all times, Pohl strictly limyited access to the trade secrets, and he ensured that those who had access to that informatiCon fully understood as part of their professional obligations the confidential character of that a information.63 Pohl also testified that “numerous times throughout the relationship,” hfef emphasized to Precision and its employees the importance of confidentiality.64 59 Id. ¶ 30. 60 Id. ¶ 61 Id. ¶ 62 Pohl Deposition, at 15:21-16:18, attached as Exhibit U. 63 Pohl Declaration ¶¶ 14-15, Exhibit A; see also Deposition of Scott Walker, at 283:17-284:22, 321:5-324:7, Exhibit D; Deposition of Kirk Ladner, at 355:18–358:10, 372:7–374:24, 377:4–23, 501:3–502:18, Exhibit V; Deposition of Steve Seymour, at 96:16-24, 223:1-20, Exhibit W. 64 Deposition of Michael Pohl, at 23:5-21, Ex. U. 25 The materials that the Moving Defendants have submitted do not conclusively establish that Pohl failed to protect client information. Instead, to the extent that the question can even be considered by this Court given that the State Bar of Texas has finally resolved the issue, there is substantial controverting evidence. Accordingly, the allegation does not provide ak basis on which to enter summary judgment in the Moving Defendants’ favor. l e. Pohl legally obtained the materials at issue. c The Moving Defendants also assert that Pohl cannot recover fosr their violations of TUTSA because the materials at issue did not legally belong to him. Tshis allegation depends entirely on the Moving Defendants’ failed arguments relating to the unauthorized practice of law and illegal solicitation of clients. For the same reasons that those arguments fail, this challenge to Pohl’s ownership of the materials at issue fails and does not provide a basis on which to enter summary judgment in the Moving Defendants’ favor. a Additionally, the Moving Defendants seem to suggest that Pohl cannot own his client contracts if they are illegal. Howeveer, TEX. GOV’T CODE § 82.0651(a) indicates that an attorney- client contract is voidable, not vfoid. There is no evidence that any of Pohl’s contracts were declared void, as provided foyr in the barratry statute. TEX. GOV’T CODE § 82.0651(a). Thus, even if the Moving DefendaCnts were correct factually on the barratry issue—and they are not—Pohl’s contracts were still effective and worthy of protection. The Moving Defendants failed to establish as a matter of lfafw that Pohl does not own the materials at issue. InU any event, Pohl does not have to demonstrate how he acquired his engagement agreements with his clients or his client files to pursue his claims. The agreements are clear on their face. While Kassab claims to have relied upon the non-lawyers Walker and Ladner, and Favre relied on Nicholson for the idea that Precision somehow owned Pohl’s files, the evidence 26 (and an ounce of common sense) does not support it. Walker repeatedly admitted that he knew the attorney-client contracts, the computers containing Pohl’s files and any list of clients belonged to Pohl.65 Mr. Ladner indicated that he believed those materials belonged to Pohl, questioned Favre about it and was told to consult Nicholson. Nicholson told him that Pohl’ks contracts and files did not belong to Pohl.66 However, in reality, Ladner had to concede thalt the contracts and case files were all “Pohl’s stuff.”67 c D. None of the Asserted Immunity Doctrines Apply. s The Moving Defendants hope to cloak their tortious actsions in one variety or another of immunity, variously asserting attorney immunity, judicial proceeding privilege, and immunity for filing a grievance. None of these doctrines supplies the shield that the Moving Defendants hope to hide behind. Pohl sued the Moving Defendants for coanverting his property and misappropriating his trade secrets. They argue that they are entitled to immunity because after they engaged in this wrongful acquisition of property and informateion, they sought to profit from their torts by suing Pohl for barratry and other claims. Texas fdoes not recognize any form of immunity for the tortious actions of lawyers taken outside they attorney-client relationship and outside of the judicial process. As hard as the Moving DCefendants may try to characterize their actions as being part of “judicial proceedings” or as being part of their work as attorneys, that effort fails. 1. The aftftorney immunity doctrine does not apply. TUhe common-law attorney-immunity defense applies to lawyerly work in “all adversarial contexts in which an attorney has a duty to zealously and loyally represent a client” but only when 65 Deposition of Scott Walker, at 316-319; 327-329, Ex. D. 66 Deposition of Kirk Ladner, at 119:21-120:15, 127:5-25, 340:10-342:17, Exhibit V. 67 Id. at 350:11-351:21, 356:11-359:12. 27 the claim against the attorney is based on “the kind of conduct” attorneys undertake while discharging their professional duties to a client. Taylor v. Tolbert, 644 S.W.3d 637, 646 (Tex. 2022). Where, as here, an attorney engages in conduct that is not “lawyerly work” or is “entirely foreign to the duties of a lawyer” or falls outside the scope of client representatiokn, the attorney- immunity defense is inapplicable. Id.; see also Haynes & Boone, LLP v. NFTDl, LLC, 631 S.W.3d 65, 67 (Tex. 2021); Landry’s, Inc. v. Animal Legal Defense Fund, 63c1 S.W.3d 40, 47 (Tex. 2021); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 201s5). Attorney immunity does not protect conduct s  simply because attorneys often engage in that activity or because an attorney performed the activity on a client’s behalf. Ratherr, the conduct must involve the uniquely lawyerly capacity and the attorney’s skills as an attorney. For example, a lawyer who makes publicity statements to the press and on social media on a client’s behalf does not partake of the office, professional training, skill, and authority of an attorney because anyone—including presls agents, spokespersons, or someone with no particular training or authority at aall—can publicize a client’s allegations to the media. Immunity attaches only if theM attorney is discharging “lawyerly” duties to his or her client.  Tolbert, 644 S.W.3d at 646 (footnotees omitted) (cleaned up). The Texas Supreme Courft has held that two inquiries are relevant to an attorney-immunity defense: “the type of conduyct at issue and the existence of an attorney–client relationship at the time.” Youngkin v. HCines, 546 S.W.3d 675, 683 (Tex. 2018). The claims against the Moving Defendants do not fall within the attorney-immunity doctrine because the conduct at issue does not qualify as “f fthe kind of conduct in which an attorney engages when discharging his duties to his clientU.” Canty Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). The Moving Defendants have not and cannot establish the existence of an attorney–client relationship at the time of their wrongful conduct. 28 The Moving Defendants’ knowing purchase of stolen property before representation of a client is neither within the scope of the client representation nor is it an activity undertaken in a “uniquely lawyerly capacity.” See Landry’s, 631 S.W.3d at 47. The use of the information by the Moving Defendants to solicit and advertise to obtain clients is not within the kscope of client representation, because this conduct necessarily precedes the “meeting of thel minds” between a potential client and attorney necessary to form an attorney–client relationcship. See Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 254–55s (Tex. App.—Houston [14th Dist.] 2003, pet. denied). s  The Moving Defendants attempt to address this issue by arguing the non-relevant point that attorney immunity can apply prior to any litigation. While the doctrine can in certain circumstances apply prior to litigation, that fact is not relevant here. Pohl asserts claims for conduct, not just before litigation, but before thae Moving Defendants had a single client with whom they could have the requisite attorney–client relationship. Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d e244, 254–55 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (noting that attorney–clifent relationship cannot be formed prior to a “meeting of the minds”). y In sum, the MoCving Defendants cannot show that their wrongful actions were “within the scope of client representation” and were “not foreign to the duties of a lawyer.” Youngkin, 546 S.W.3d at 682f. f Immunity arises only if a lawyer can establish as a matter of law that when he engaged Uin his alleged wrongful acts, he was acting not only within the scope of client representation, but that there was something “particular to ‘the office, professional training, skill, and authority of an attorney’ about” his alleged wrongful conduct. See Landry’s, 631 S.W.3d at 47. 29 Because the Moving Defendants did not and cannot provide evidence of the existence of an attorney–client relationship at the time of their wrongful actions and evidence that those actions were within the scope of their representation, their request for summary judgment on the attorney- immunity doctrine must be denied. The fact that their wrongful conduct of pukrchasing stolen information was not the type of conduct undertaken in a “uniquely lawyerly caplacity” only further supports this conclusion. c 2. The judicial proceedings privilege does not apply. s The judicial proceedings privilege applies only to commsunications “in the due course of a judicial proceeding” and the privilege protects against a claim for libel or slander. Landry’s, 631 S.W.3d at 46. Given that the basis of Pohl’s claim is not a communication made in the due course of a judicial proceeding and given that Pohl has not sued for libel or slander, the judicial proceedings privilege does not apply as a matater of law. Kassab argues that even though Pohl’s claims do not assert claims for libel or slander, the judicial proceedings privilege shoueld apply because Pohl’s claims arise somehow out of communications. Pohl’s claims dfo not however, arise out of communications. They arise out of theft. Misappropriation of ytrade secrets is not a form of communication, nor is conversion. Kassab’s arguments faCil. 3. The judicial proceedings privilege does not apply. Section 17.09 of the Texas Disciplicnary Rules does not apply Although Kassab contends baldly that “it is undisputed that Pohl’s allegations of wrongdoing are predicated on Kassab’s filing of grievances against Pohl,” Kassab Defendants’ Motion at 35, that is untrue. Instead, Pohl’s suit is predicated on the Defendants’ conversion of his property and misappropriation of his trade secrets. The fact that Kassab subsequently used those trade secrets and that property to file grievances does not trigger the protections of TEX. R. 30 DISC. P. 17.09. In short, that section does not apply to the claims asserted here, as they are based on conversion and theft. E. Pohl’s Claims Have Not Been Released Nicholson erroneously contends that the Settlement Agreement that she repkeatedly ignored and flagrantly breached released her from the claims that Pohl now asserts. Thlis argument fails. As an initial matter, Nicholson has provided the Court with no adcmissible evidence of the terms of the Settlement Agreement on which they rely. Althougsh the Amended Motion for Traditional Summary Judgment purports to quote the termss of the confidential agreement, Nicholson has not attached or verified the agreement itself. Without the Settlement Agreement as evidence, the Court cannot enter summary judgment on the argument that it contains release language that would effectively release the claims asserted here. In addition, contrary to Nicholson’s ianterpretation of the language of the releases in the Settlement Agreement, that language does not provide a release for future torts not yet committed by the released parties at the time of tehe Settlement Agreement. More importantly, howefver, the Settlement Agreement requires specific actions (in addition to the return of docyuments) that Nicholson quite plainly violated. That is, Paragraph 27 of the Settlement AgreCement provides that “Claimants and Affiliates of Claimants promise and agree not to make or cause to be made any claim, not to file or cause to be filed any complaint (administrativef for otherwise), and not to file or cause to be filed any legal action against any of the Lawyer RUeleasees [which includes Pohl].” Nicholson’s blatant violation of this provision invalidates any contention that the Settlement Agreement Releases her from the claims Pohl asserts here. 31 F. Pohl’s TUTSA Claim is not “Conclusively Negated” Nicholson contends that Pohl’s TUTSA claim is “conclusively negated” because of the absence of a confidentiality provision in Pohl’s agreement with Precision. This is not a requirement of TUTSA, which simply requires “reasonable measures under the cirkcumstances” to preserve confidentiality. This also ignores the “circumstance” of the special natlure of the attorney- client relationship and the ability and often need for a lawyer to share mcaterials with employees, consultants, and vendors who qualify as “lawyer representatives” usnder Rule 503 of the Texas Rules of Evidence. s  Moreover, Pohl has sworn that he took steps to protect and limit access to the trade secrets, and he ensured that those who had access to that information fully understood as part of their professional obligations the confidential character of that information.68 These steps include (and are corroboraated by Precision representatives): • Pohl informed Precision and all of the staff of the confidential and privileged nature of the informateion and instructed them to treat them accordingly.69 • Pohl maintained hfis office at the top of Hancock Bank – “the most secure location on the coast. y ”70 • The buCilding had 24 hour/round the clock security.71 • The elevators were coded such that one could only get to one’s own floors.72 • fThere were security cameras at every floor.73 68 Pohl Declaration ¶¶ 14-15, Exhibit A. 69 Id.; Deposition of Scott Walker, at 283:17-284:22, Exhibit D; Deposition of Kirk Ladner, at 372:7–374:24, Exhibit 70 See Deposition of Scott Walker, at 283:17-284:22, Exhibit D; Deposition of Kirk Ladner, at 372:7–374:24, Exhibit 71 See Deposition of Scott Walker, at 283:17-284:22, Exhibit D. 72 See Deposition of Scott Walker, at 322:9-23, Exhibit D. 73 Id. 32 • The documents and computers were kept under “lock and seal.”74 • The engagement agreements were clearly labeled to identify them as contracts between lawyers and clients.75 While Nicholson claims that the lists at issue here have been previously usekd as exhibits in various depositions and hearings, she ignore the facts surrounding the limiteCd plroduction. First, Pohl and Williamson were both lawyers who owed duties tco their clients and had a proprietary interest in their own files. All of the defendants were “lawyer representatives” and had a continuing responsibility to protect the confidential informatsion of both Pohl and Williamson and the underlying clients. g Second, all of the parties to the Mississippi laBwsuit already had the either possession (by virtue of stealing Pohl’s files) or a proprietary iynterest in and in some cases possession of the documents (Pohl and Williamson). Any limaited production simply went from one party who already had the information to another party who had the information and did not expand disclosure of privileged and confidential information beyond those that already had it. Unsurprisingly, Defendanfts have offered no authority to support the assertion that merely producing information from one party with continuing duties to protect it to another party who already has the informaCtion and a continuing duty to protect it somehow waives confidentiality. Equally important, and surprisingly absent from Kassab’s and Nicholson’s motion, are two separate ordersf f issued in the Mississippi suit. On October 14th, 2016, Magistrate Judge John C. Gargiulo Udenied Precision’s Motion for Protective Order where they sought to prevent discovery of any of the “marketing lists” in their possession. In denying the motion, Judge Garguilo orders the production of information but with very strict confidentiality protections, limiting who can 74 See Deposition of Scott Walker, at 283:17-284:22, Exhibit D. 75 Pohl Declaration ¶ 15, Ex. A. 33 even have access to the client-based information.76 This was followed up by a letter from Pohl’s counsel Mr. Bailey.77 On March 22, 2017, Judge Garguilo issued a protective order that was sought by all parties and approved as to form by all counsel. In that order, the Court defined “Confidentikal Information” as including the names, addresses and telephone numbers of the Pohl and/orl Williamson along with amount of gross recovery and fees received and placed strict protectiocns on that information.78 While the Order indicated that it did not apply to previously produceds documents or to Exhibit 70 (which had been previously publicly filed and merely contasined information about totals of categories of clients and did not identify individual clients), it specifically held that it did apply to the underlying data to Exhibit 70 (the individual client information) and to any supplements of Exhibit 70 and to the underlying data to the supplements.79 Accordingly, to the extent even needed given the continuing duties of the parties and athe fact that all parties already had the information, the Court reinforced the confidentiality of all the underlying client data by specifically holding it fell within the scope of the Confidenteiality Order. Finally, even ignoring allf of the above, Defendants have no summary judgment evidence that the client lists and client ycontact information is the same or even overlaps. Instead, they simply erroneously assert that Cclient lists were submitted without the protection of a protective order. Far from conclusively establishing anything at all, Nicholson has at most raised a potential fact issue relative to somfef of the materials that are the subject of the suit. 76 See October 14, 2016 Order from Mississippi Court, attached as Exhibit X. 77 See October 27, 2016 email and letter from Counsel to Pohl, attached as Exhibit Y. 78 See Exhibit 21 to the Nicholson Motion, at 1-2. 79 Exhibit 70 is attached hereto as Exhibit Z. 34 G. Pohl’s ownership has not been disproven. Kassab’s allegations regarding the ownership of Pohl’s trade secrets and information are self-defeating. Kassab states: The claimant must also demonstrate that it is “the person or entity in whokm or in which rightful, legal, or equitable title to, or the right to enforce rights ine, the trade secret is reposed.” TEX. CIV. PRAC. & REM. CODE § 134A.002(3-a)l. Similarly, “[a] plaintiff who has not shown title or some other right to possession of the property allegedly converted may not maintain a suit in convercsion.” Catania v. Garage de Le Paix, Inc., 542 S.W.2d 239, 242 (Tex. Civ. App.—rTyler 1976, writ ref'd n.r.e.). s Kassab Motion at 58. However, Kassab’s entire theory regarding why these requirements are not met is because he alleges that Pohl’s trade secrets and other information constitute part of the client file, which they contend belongs to the client, and must be turned over to the client upon the client’s demand. See Kassab’s Motion, at 58-59. But even if that were the entire story, that would not mean that Pohl did not have a right to possession of the client file up until his clients demanded he turn over the contents of their client file to them. There is no evidence of any such demand that would limit Pohl’s possessory rights.e However, as laid out in more detail in Pohl’s Response to the No-Evidence Motions for Sumfmary Judgment, there is evidence demonstrating that Pohl is the rightful owner of misappropyriated and converted files and information.80 H. Pohl’s AllegeCd Damages are Recoverable In their finaal effort to prevent Pohl’s claims from being presented to a jury, the Moving Defendants relyf on inapplicable case law to argue that Pohl is not entitled to recover for the injuries that theyU inflicted. Relying on standard case law relating to the availability of attorney’s fees arising during the pursuit of the case at issue, the Moving Defendants argue that Pohl cannot claim 80 Pohl incorporates by reference both the arguments and evidence on the ownership of the information contained in his Response to the No-Evidence Motions for Summary Judgment that is filed on the same day as this Response. 35 as damages the harm he suffered in being forced to defend himself from the Moving Defendants’ failed barratry actions. As the Moving Defendants point out, a plaintiff in a TUTSA action is entitled to “the value of the plaintiff’s lost profits, the defendant’s actual profits from the use of the seckret, the value a reasonably prudent investor would have paid for the trade secret, the developmentl costs the defendant avoided by the misappropriation, and a reasonable royalty.” Sw. Energy Prodt. Co. v. Berry-Helfand, 491 S.W.3d 699, 710–11 (Tex. 2016). In this case, the fees and expensses incurred by Pohl to defend against the scurrilous actions brought by the Moving Defendants fall squarely within the category of actual loss damages that are expressly recoverable under the eterms of TUTSA explicitly authorizes recovery of. TEX. CIV. PRAC. & REM. CODE § 134A.004(au) (providing that TUTSA damages include “the actual loss caused by misappropriation”).81  Furthermore, the only case the Moving Defiendants cite relating to the availability of attorneys’ fees from a prior case as damages has been directly questioned on that point by the Texas Supreme Court. See Martin-Simon v. Womack, 68 S.W.3d 793 ,797-98 (Tex. App.—Houston [14th Dist.] 2001, pet. denied), declined to extend by Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Development and Research Corp., 299 S.W.3d 106, 120 (Tex. 2009). The Moving Defendants’ citation of the case for the broad proposition that attorneys’ fees in a prior case are not available as damages misstates the governing precedent. Furthermore, subsequent caselaw has confirmed that attorneys’ fees from prior litigation may be rceciovered as actual damages in a subsequent suit in certain circumstances. See Dixon Fin. Services,o Ltd. v. Chang, 325 S.W.3d 668, 678 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Finally, Defendants fail to even address the other damages sought by Pohl. One component of damages is the value a reasonably prudent investor would have paid for the trade secret. Here, the evidence demonstrates that Defendants believed Pohl’s protected information was worth $6 million. 81 Pohl also seeks other types of damages in relation to his TUTSA claim. 36 Both Mr. Walker and Mr. Ladner testified hearing Favre and Nicholson discuss on multiple occasions that Pohl’s files, and specifically the identity of Pohl’s clients, were worth $6mm.82 Pohl as owner of the assets confirms this value.83 Mr. Favre confirmed that Pohl’s information had independent value and was one of Precisions “most valuable asset” such that the value of the entire company would be substantially reduced if they were disclosed.84 III. CONCLUSION t For the foregoing reasons, Plaintiffs Michael Pohl and Law Otffices of Michael A. Pohl respectfully request that the Kassab Defendants’ Motion for Traditional Summary Judgment and the Nicholson Defendants’ Amended Motion for Traditional eSummary Judgment be in all respects denied. u 82 See Deposition of Scott Walker, at 328:10-16 (testifying about how he had heard Pohl’s client list was worth $6 million), attached as Exhibit D; Deposition of Kirk Ladner, at 314:10–315:18, 343:7-344:17 (recalling that he was told that the boxes containing Pohl’s information were worth $6 million), attached as Exhibit V. 83 Pohl Declaration ¶ 27, Ex. A. 84 See Exhibit 50 to the Kassab Motion. 37 Dated: September 12, 2022 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 12th day of September, 2022. M /s/ Jean C. Frizzell  Jean C. Frizzell 38 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 e Bar No. 7484650 C sblue@reynoldsfrizzell.com t Envelope ID: 68182991 r Status as of 9/13/2022 8:05 AM CST Case Contacts Name BarNumber Email sTimestampSubmitted Status Solace Southwick ssouthwick@reynoldsfrizzell.com 9/12/2022 11:55:09 PM SENT Zandra EFoley zfoley@thompsoncoe.com r 9/12/2022 11:55:09 PM SENT Andrew Johnson ajohnson@thompsoncoe.com 9/12/2022 11:55:09 PM SENT Andrew J. Sarne asarne@krcl.com 9/12/2022 11:55:09 PM SENT Benjamin Ritz britz@thompsoncoe.conm 9/12/2022 11:55:09 PM SENT Kathryn Laflin KLaflin@KRCL.com 9/12/2022 11:55:09 PM SENT Murray JFogler mfogler@foglerbrrar.com 9/12/2022 11:55:09 PM SENT Murray Fogler mfogler@fbfog.com 9/12/2022 11:55:09 PM SENT Jean C.Frizzell jfrizzell@reynoldsfrizzell.com 9/12/2022 11:55:09 PM SENT Larry Newsom lnewsom@fkrcl.com 9/12/2022 11:55:09 PM SENT Jason M.Ciofalo jason@ciofalolaw.com 9/12/2022 11:55:09 PM SENT Chris C.Pappas cpappas@krcl.com 9/12/2022 11:55:09 PM SENT Todd Taylor titaylor@jandflaw.com 9/12/2022 11:55:09 PM SENT Harris Wells fhwells@reynoldsfrizzell.com 9/12/2022 11:55:09 PM SENT Todd Taylor ttaylor@jandflaw.com 9/12/2022 11:55:09 PM SENT Lawyer Wade y lawyerwade@hotmail.com 9/12/2022 11:55:09 PM SENT Scott M.Favre scott@favrepa.com 9/12/2022 11:55:09 PM SENT Andrea Mendez C andrea@kassab.law 9/12/2022 11:55:09 PM SENT Lance Kassab  lance@kassab.law 9/12/2022 11:55:09 PM SENT David Kassab a david@kassab.law 9/12/2022 11:55:09 PM SENT Nicholas Pierce c nicholas@kassab.law 9/12/2022 11:55:09 PM SENT Dale Jefferson f i 10607900 jefferson@mdjwlaw.com 9/12/2022 11:55:09 PM SENT Raul Herman Suazo o 24003021 suazo@mdjwlaw.com 9/12/2022 11:55:09 PM SENT Kevin Graham Cain 24012371 cain@mdjwlaw.com 9/12/2022 11:55:09 PM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 11:55:09 PM SENT L Kassab lance@kassab.law 9/12/2022 11:55:09 PM SENT Murray J. Fogler 7207300 mfogler@foglerbrar.com 9/12/2022 11:55:09 PM SENT Misty Davis mdavis@reynoldsfrizzell.com 9/12/2022 11:55:09 PM SENT Non-Party Witness Billy Shepherd bshepherd@spcounsel.com 9/12/2022 11:55:09 PM SENT Deidre Hicks GWS_GROUP@spcounsel.com 9/12/2022 11:55:09 PM SENT E. MarieJamison jamison@wrightclosebarger.com 9/12/2022 11:55:09 PM SENT Jessica Z.Barger barger@wrightclosebarger.com 9/12/2022 11:55:09 PM SENT Katie Budinsky kbudinsky@krcl.com 9/12/2022 11:55:09 PM ERROR D Kassab david@kassab.law 9/12/2022 11:55:09 PM SENT

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