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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

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