city of el paso in court to quash townsend allala's depos of wilson, niland, byrd

7/30/2019 City of El Paso in Court to Quash Townsend Allala's Depos of Wilson, Niland, Byrd

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NO. D-1-GV-12-001731CITY OF EL PASO, TEXAS

Plaintiffv.

GREG ABBOTT, ATTORNEYGENERAL OF TEXAS,Defendant

IN THE DISTRICT COURT OF

261 st JUDICIAL DISTRICT

TRAVIS COUNTY, TEXAS.MOTION TO QUASH NOTICE OF INTENTION TO TAKE ORAL DEPOSITIONS

AND MOTION FOR A PROTECTIVE ORDERTO THE HONORABLE JUDGE OF SAID COURT:NOW COMES, City ofEl Paso, Texas,(hereinafter refened to as "Plaintiff' and/or "City"), and

requests this Court to quash three notices of intention to take oral depositions and issue aprotective order relating to the same, and for such would respectfully show the following:

I.FACTUAL BACKGROUNDThis lawsu it is a declaratory judgment action based on a several Texas Public

Information Act ("the Act") requests made to the City of El Paso seeking, inter alia, certain e-mails which Plaintiff contends are outside the scope of the Act. The Texas Public InformationAct is found in Chapter 552 of the Texas Government Code.

The Legislature defines "public Infonnation" as "infonnation that is collected,assembled, or maintained under a law or ordinance or in connection with the transaction ofofficial business (1) by a governmental body; or (2) for a governmental body and thegovernmental body own the information or has a right to access to it." Tex. Gov t Code 552.002(a); see also City ofGarland v. Dallas Morning News, 22 S.W.3d 351 , 356 (Tex. 2000).However, the Texas Attorney General has taken the position that this includes infonnationmaintained by an individual public official or employee of the governmental body. Plaintiffbrought suit against the Texas Attorney General seeking a declaration from this Court that thePlaintiff' s Motion to QuashCity ofE l Paso v. Greg Abbott, Attorney General of TexasPage 1 of 10

Filed13 September 4 P4:Amalia Rodriguez-MDistrict ClerkTravis DistrictD-1-GV-12-001731


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personal papers, e-mails and effects of local governmental officials and employees are notsubject to "open records searches" and do not meet the statutory definition of public in formationand therefore, are not subject to the Act.

The original requesting pmiy has intervened in this lawsuit seeking mandamus action

against the City to "disclose all of the infonnation Intervenor requested in her requests datedSeptember 5, 2012 and October 5, 2012." See Petition in Intervention by Stephanie TownsendAllala and Motion to Show Authority,

II.THE NOTICES

On or about the 29th day of August 2013, the City, through its attorneys, was served

with notices of intention to take oral deposition of Susie Byrd (See Exhibit "A"), CourtneyNiland (See Exhibit "B") and Joyce A. Wilson (See Exhibit "C"). The prospective Deponentsare not patties to this lawsuit, nor are they governmental entities.

Plaintiff objects to the time and place of the proposed depositions. Because this motion isfiled within three days of the date of service (not counting the intervening Labor Day holiday),the depo s itions are stayed until this motion may be heard. See Tex. R. Civ. P. 199.4. Plaintiffand the proposed deponents have not agreed to the date, time or place of these proposeddepositions, and Plaintiff has clearly conununicated this to Intervenor' s counsel prior to theissuance of the notices. See Exhibit "D." Plaintiff asks the Comt to order that these depositionsbe quashed because the prospective deponents are not parties to the lawsuit nor are theygovernmental bodies to which the Public Information Act applies. Two of the witnesses are not

under Plaintiffs control , and as such they were not properly served. The parties and witnesseshave not agreed to appear at the Requestor 's law office, and the parties and the witnesses havenot agreed to the time scheduled for the depositions.

Plaintiffs Motion to QuashCity ofEl Paso v. Greg Abbott, Attomey General of TexasPage 2 of 10


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The Court should quash the deposition notices because the witnesses are not parties to thelawsuit nor are they govemmental bodies to which the Act applies. The Public Information Actdoes not apply to an officer or employee of a govemmental unit. See Keever v. Finlan, 988S.W.2d 300, 305 (Tex. App.- Dallas 1999, pet. dism 'd)(holding that an individual member of a

school district board of trustees is not a "govenunental body" and not subject to the act.); seealso City ofDallas v. Dallas Morning News, 281 S.W.3d 708, 714 (Tex. App.- Dallas 2009, nowrit) ("A govenunental body does not include Mayor Miller or any City employee."). Becausethe potential witnesses are not "governmental bodies" and the Act does not apply to them,Intervenor is not entitled to use the mandamus process to somehow transfonn their infonnationinto public infonnation. See Keever at 305 (Plaintiff was not pem1itted to seek a mandamusagainst the school board trustee, and could not compel him to make infonnation available underthe Texas Open Records Act.) "The requested e-mails are not 'public infonnation" unless theyare collected, assembled, or maintained in cotmection with the transaction of official business (1)by a governmental body; or (2) for a govenunental body and the govenunental body owns theinfonnation or has a right of access to it." City ofDallas v. Dallas Morning News, 281 S.W.3d at714 (citing Tex. Gov 't. Code Ann. 552.002(a).

In this case, Intervenor seeks e-mails in the possession and control of non-parties whichwere not collected, assembled, or obtained by or for a governmental body under a law orordinance or in connection with transacting official business, and therefore are not publicinfonnation. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 359 (Tex. 2000).Intervenor should not be able to use discovery tactics in this mandamus action to do an end runaround the Act and reach infom1ation (testimony and e-mails) which is not public infmmation.The Court should quash the subpoenas and issue a protective order to prevent the disclosure ofinfonnation that is not "public information" as defined by the Act.

Plaintiff's Motion to QuashCity ofE l Paso v. Greg Abbott, Attorney General of TexasPage 3 of 10


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Additionally, the potential witnesses have a reasonable expectation of privacy in the e-mails sought by Intervenor. See United States v. Warshak, 631 F.3d 266, 288 (61h Cir. 2011).Plaintiff has no access to those e-mails that are not stored on Plaintiff's servers absent a wan-antbased on probable cause. See id. Likewise the Court cannot allow Intervenor to invade the 41h

Amendment rights of the potential witnesses. Intervenor's mandamus action, if successful, willonly entitle Intervenor to public infonnation . The infmmation sought from the potentialwitnesses is not public infom1ation and the Court must quash the deposition notices and issue aprotective order to prevent the disclosure of the infonnation that is not "public infonnation" asdefined by the Act as well as protect the witnesses from being compelled to testify about theirprivate e-mails and papers.

The Court should quash the deposi tion notices because the witnesses were not properlyserved. According to Rule 199.2(a) ofthe Texas Rules ofCivil Procedure: "A notice of intent totake an oral deposition must be served on the witness and all patiies a reasonable time beforethe deposition is taken." (emphasis added). None of the proposed witnesses are parties. Two ofthe witnesses (one a former City Council member and one a present City Council member) are

not under the control of Plaintiff. Because Intervenor failed to serve the witnesses as requiredunder Rule 199.2(a), the Court must quash the deposition notices.

The Court should quash the deposition notices because the witnesses have not agreed tobe deposed at the Requestor's law office. Plaintiff moves to quash and moves for a protecticeorder based on the location of the proposed depositions. Because this Motion is filed by the thirdbusiness day after service of the notice of the depositions, the proposed depositions areautomatically stayed until the Court hears the Motion. See Tex. R. Civ. P. 199.4. Plaintiff andwitnesses should not be forced to attend a deposition in the Intervenor's office, but wouldsuggest that any such deposition be conducted at a neutral location, or at City Hall.

Plaintiffs Motion to QuashCity ofEl Paso v. Greg Abbott, Attorney General ofTexasPage 4 of 10


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The Court should quash the deposition notices because the witnesses have not agreed tothe date and time scheduled for their depositions. Plaintiff moves to quash and moves for aprotectice order based on the time and date of the proposed depositions. Because this Motion isfiled by the third business day after service of the notice of the depositions, the proposed

depositions are automatically stayed until the Court hears the Motion. See Tex. R. Civ. P. 199.4.Plaintiff and wi tnesses should agree on a time and date for any proposed deposi tions andPlaintiff has not agreed to the date and time on the notices. Moreover, Plaintiff does not controltwo of the proposed witnesses and they have not consented to the date and time on the notices.Plaintiff respectfully asks that this Court require the scheduling of any such depositions onlyafter consulting the schedule of the witness and all counsel of record.

III.THE REQUEST FOR PRODUCTIONPlaintiff further objects to the request for production ofdocuments that are attached to the

notices. Essentially, the Intervenor attempts to use the discovery rules to circumvent the PublicInformation Act procedures and obtain documents that are not "public infonnation" under theAct. Plaintiff objects to the extent that the witnesses are not parties to this litigation and enjoy areasonable expectation of privacy in the contents of their private e-mails. See United States v.Warshak, 63 1 F.3d 266,288 (6th Cir. 2011). Plaintiffhas no access to those e-mai ls that are notstored on Plaintiff's servers absent a warrant based on probable cause. See id. Likewise theCourt cannot allow Intervenor to invade the 4th Amendment rights of the potential witnesses.Intervenor's mandamus action, if successful, will only entitle Intervenor to public infonnation.

The infonnation sought from the potential witnesses is not public infonnation and Plaintiff asksthe Comt to enter a protective order to prohibit the disclosure of the private e-mails of theproposed witnesses.

Plaintif fs Motion to QuashCity ofEl Paso v. Greg Abbott, Attorney General ofTexasPage 5 of 10


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Plaintiff further objects that the requests are overly broad, unduly burdensome, and notreasonably calculated to lead to the di scovery of relevant evidence. The documents therequested documents are the witnesses' personal papers and effects and not "public infonnation."The Comi must not allow Intervenor to use the discovery in this action to conduct a fishing

expedition in violation of the witnesses' 4th Amendment rights.Moreover, Plaintiff has made a good faith offer to voluntarily produce all responsive

information in Plaintiff's possession. See Exhibit "E ." Plaintiff has additionally contacted all ofthe potential witnesses and asked them to voluntarily produce to Plaintiff any responsivedocum ents so that Plaintiff may produce those voluntarily to Intervenor and the public. SeeExhibit "F." Rather than invade the 4th Amendment p1ivacy rights of the proposed witnesses,and harass non-parties with inelevant depositions, the Court should allow Plaintiff to make theproposed disclosures of all documents in Plaintiff's possession. This would incidentally alsogrant to Intervenor the relief to which she is entitled. Plaintiff respectfully asks this Court toissue a protective order to prohibit the disclosure of the private e-mails and papers of theproposed witnesses and all testimony relating to those e-mails and papers.

IV.MOTION MADE IN GOOD FAITHThis motion is being made in good faith and not for purposes of delay.WHEREFORE, PREMISES CONSIDERED, the Plaintiff respectfully requests that the

attached deposition notices be quashed in their entirety. Plaintiff further prays that the Courtissue a protective order to prohibit the disclosure of the private e-mails of the proposed witnesses

and all testimony related to those e-mails.

Plaintiffs Motion to QuashCity ofEI Paso v. Greg Abbott, Attomey General of TexasPage 6 of 10


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SIGNED this 411 day of September, 2013.

BY:

Plaintiffs Motion to Quash

Respectfully submitted,DENTON, NAVARRO, ROCHA & BERNALProfessional Corporation2500 W. William Cannon Drive, Suite 609Austin, Texas 78745Telephone: (512) 279-6431Facsimile: (512) [email protected]@[email protected]

State Bar No. 45006157ERIN A. HIGGINBOTHAMState Bar No. 24065418SCOTT M. TSCHIRHARTState Bar No. 24013655ATTORNEYS FOR PLAINTIFF

City ofEl Paso v. Greg Abbott, Attorney General ofTexasPage 7 of lO


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CERTIFICATE OF SERVICEI hereby certify that a true and correct copy ofPlaintiff's Motion to Quash and Motion for

Protective Order has been served in accordance with Texas Rules of Civil Procedure on this the4th day of September, 2013, as indicated below.Kimberly L. FuchsChief, Open Records LitigationAdministrative Law DivisionP.O. Box 12548, Capitol StationAustin, Texas 78711Bill AleshireRiggs & Aleshire, P.C.700 Lavaca, Suite 920Austin, Texas 78701

Plaintiffs Motion to Quash

CMRRR #7011 2970 0004 0033 6975

CMRRR #7011 2970 0004 0033 6982

GEORGE E. HYDEERIN A. HIGGINBOTHAMSCOTT M. TSCHIRHART

City ofEl Paso v. Greg Abbott, Attorney General of TexasPage 8 of 10


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NO. D-1-GV-12-001731CITY OF EL PASO, TEXAS

Plaintiffv.GREG ABBOTT, ATTORNEYGENERAL OF TEXAS,

Defendant

ORDER


261 st JUDICIAL DISTRICT

TRAVIS COUNTY, TEXAS

On September __ 2013, came on to be considered PLAINTIFF 'S MOTION TOQUASH NOTICE OF INTENTION TO TAKE DEPOSITIONS AND MOTION FORPROTECTIVE ORDER, and, it appears to the Court that good cause exists for such Motion andit should be GRANTED.

IT IS ORDERED that the above-described Notices served upon the City of El Paso arehereby QUASHED.

IT IS FURTHER ORDERED that the proposed witnesses Susie Byrd, Courtney Niland,

and Joyce A. Wilson shall not be compelled to produce e-mails and personal papers that are intheir possession and that they shall not be compelled to answer any questions, in deposition orotherwise, relating in any way to their personally maintained e-mails and other personal papers.

SIGNED on______ 2013.

JUDGE PRESIDING

Plainti ffs Motion to QuashCity ofEI Paso v. Greg Abbott, Attorney General of TexasPage 9 of 10


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PREPARED BY:DENTON, NAVARRO, ROCHA & BERNALProfessional Corporation2500 W. William Cannon Drive, Suite 609Austin, Texas 78745Telephone: (512) 279-6431Facsimile: (512) [email protected]@[email protected]

State Bar No. 45006157ERIN A. HIGGINBOTHAMState Bar No. 24065418SCOTT M. TSCHIRHARTState Bar No. 24013655ATTORNEYS FOR PLAINTIFF

Plaintiff's Motion to QuashCity of El Paso v. Greg Abbott, Attorney General of TexasPage 10 of 10


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CAUSE NO. D-1-GV-12-001731CITY OF EL PASO, TEXASPlaintiff


v. 26lsT JUDICIAL DISTRICTGREG ABBOTT, ATTORNEYGENERAL OF TEXAS,Defendant

TRAVIS COUNTY, TEXAS

INTERVENOR STEPHANIE ALLALA'S NOTICE OF INTENTIONTO TAKE THE ORAL DEPOSITION OF SUSIE BYRD

To: Plaintiff, City ofEl Paso, by and through its attorney of record, GEORGE HYDE,DENTON, NAVARRO, ROCHA, & BERNAL, 2500 West William Cannon Drive, Suite609, Austin, TX 787451. Please take notice that, under Texas of Civil Procedure 199.1 & 199.2, Intervenor

Stephanie Allala will take the oral and videotaped deposition of SUSIE BYRD on October 2,2013, at 9:00 a.m. at the law offices of Stephanie Townsend Allala and Associates, 300 EastMain Street, Suite 620, El Paso, Texas 7990I.

2. The deposition will continue from day to day until completed.3. The deposition will be recorded stenographically and on videotape. The

stenographic recording will be conducted by Brannon Rasberry and Associates, 300 E. MainStreet, El Paso, ~ x a s , 79901.

4. Under Rule 199.2(b)(5), Susie Byrd is requested to produce at the deposition thefollowing documents within her custody or control that have not been previously provided to theCity of El Paso:

1. E-mails (including emails written using personal email accounts), letters, memoranda,notes, or other fonns of written communication regarding any matter of publicbusiness of the City of El Paso from You [Susie Byrd] to (or copied to, or blindcopied to) any council representative(s) or the Mayor or the City Manager fromJanuary 1, 2012 to October 5, 2012. This request includes all such written

NOTICE OF ORAL DEPOSITION EXHIBIT PAGE10F3

A:


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commtmication regardless of whether other persons also were sent thecommunication.

2. From January 1, 2012 to October 5, 2012, E-m ails, letters, memoranda, notes, or

other forms of written communication regarding public business of the City of ElPaso from You [Susie Byrd] to (or copied to, or blind-copied to), or from thefo llowing persons to You [Susie Byrd] (or copied to, or blind-copied to You):

a. PaulL. Foster;b. Scott D. Weaver;c. Joshua W. Hunt;d. H. L. Hunt;e. Mountain Star Sports Group LLC or any representative or attorney thereof;f. Franklin Mountain Sports Group LLC or any representative or attorney

thereof;g. Hunt Holdings Sports Group LLC or any representative or attorney thereof;

This request includes all such written communication regardless ofwhether other personsalso were sent the communication.

NOTICE OF ORAL DEPOSillON

TexasBarNo. 24031810RJGGS & ALESHIRE, P.C.700 Lavaca, Suite 920Austin, Texas 78701Telephone: (512) 457-9806Facsimile: (5 12) [email protected]

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CERTIFICATE OF SERVICE

I hereby certify that a tlUe and correct copy of the foregoing Notice of Oral Depositionhas been served, on August 29,2013, on the following:

BY HAND DELIVERYGEORGE E. HYDEState Bar No. 45006157ERIN HIGGINBOTHAMState BarNo. 24065418Denton, Navarro, Rocha & Bernal2500 W. Wi ll iam Cannon Dr., Suite 609Austin, Texas 78745Telephone: (512) 279-6431Facsimile: (512) [email protected] .higginbotham@rampage-aus. comATTORNEYS FOR PLAINTIFF

BY FACSIMILE:Ms. Kimberly L. FuchsChief, Open Records LitigationAdministrativeLawDivisionP.O. Box 12549, Capitol StationAustin , Texas 78711-2548Telephone: (512) 475-4195Fax: (512) [email protected]

ATTORNEYS FOR DEFENDANT

NOTICE OF ORAL DEPOSffiON

ATTORNEY POR INTERVENOR

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CAUSE NO. D-1-GV-12-001731CITY OF EL PASO, TEXAS

Plaintiff


v. 261sT JUDICIAL DISTRICTGREG ABBOTT, ATTORNEYGENERAL OF TEXAS,

DefendantTRAVIS COUNTY, TEXAS

INTERVENOR STEPHANIE ALLALA'S NOTICE OF INTENTIONTO TAKE THE ORAL DEPOSITION OF CORTNEY NILAND

To: Plaintiff, City ofEl Paso, by and through its attorney of record, GEORGE HYDE,DENTON, NAVARRO, ROCHA, & BERNAL, 2500 West William Cannon Drive, Suite609, Austin, TX 787451. Please take notice that, under Texas of Civil Procedure 199.1 & 199.2, Intervenor

Stephanie Allala will take the oral and videotaped deposition of CORTNEY NILAND onOctober 3, 2013, at 9:30 A.m. at the law offices of Stephanie Townsend Allala and Associates,300 East Main Street, Suite 620, El Paso, Texas 79901.


stenographic recording will be conducted by Brannon Rasberry an d Associates, 300 E. MainStreet, El Paso, Texas, 79901.

4. Under Rule 199.2(b)(5), Cortney Niland is requested to produce at the depositionthe following documents within her custody or control that have no t been previously provided tothe City ofEI Paso:

1. E-mails (including emails written using personal email accounts), letters, memoranda,notes, or other fom1s of written communication regarding any, matter of publicbusiness of the City of El Paso from You [Cortney Niland] to (or copied to, or blindcopied to) any council representative(s) or the Mayor or the City Manager fromJanuary 1, 2012 to October 5, 2012. This request includes all such written

NOTICE OFORAL DEPOSITION EXHIBIT PAGE10F3


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commwucation regardless of whether other persons also were sent thecommunication.

2. From January 1, 2012 to October 5, 2012, E-mails, letters, memoranda, notes, or

other forms of \ritten communication regarding public business of the City of ElPaso fiom You [Cortney Niland] to (or copied to, or blind-copied to), or from thefollowing persons to You [Cortney Niland] (or copied to, or blind-copied to You):

a. Paul L. Foster;b. Scott D. Weaver;c. Joshua W. Hunt;d. H. L. Hunt;e. Motmtain Star Sports Group LLC or any representative or attorney thereof;f. Franklin Mountain Sports Group LLC or any representative or attorney


This request includes all such written communication regardless of whether other personsalso were sent the comnnmication.

NOTICE OF ORAL DEPOSfflON

il l AleshireTexasBarNo. 24031810RlGGS & ALESHIRE, P.C.700 Lavaca, Suite 920Austin, Texas 78701Telephone: (512) 457-9806Facsimile: (512) [email protected] FOR INTERVENOR

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CERTIFICATE OF SERVICEI hereby certify that a true and correct copy of the foregoing Notice of Oral Deposition

bas been served, on August 29,2013, on the following:

BY HAND DELIVERYGEORGE E. HYDEState Bar No. 45006157ERIN HIGGINBOTHAMState Bar No. 24065418Denton, Navarro, Rocha & Bernal2500 W. William Cannon Dr., Suite 609Austin, Texas 78745Telephone: (512) 279-6431Facsimile: (512) [email protected]@rampage-aus.comATTORNEYS FOR PLAINTIFF

BY FACSIMILE:Ms . Kimberly L. FuchsChief, Open Records LitigationAdministrative Law DivisionP.O. Box 12549, Capitol StationAustin, Texas 78711-2548Telephone: (512) 475 -4195Fax: (512) 320-0167kimberly.fuchs@texasattomeygeneral .gov


NOTICE OF ORAL DEPOSITION

ATTORNEYFORlNTERVENOR

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CAUSE NO. D-1-GV-12-001731CITY OF EL PASO, TEXAS

Plaintiff


v. 261ST JUDICIAL DISTRICTGREG ABBOTT, ATTORNEYGENERAL OF TEXAS,

DefendantTRAVIS COUNTY, TEXAS

INTERVENOR STEPHANIE ALLALA'S NOTICE OF INTENTIONTO TAKE THE ORAL DEPOSITION OF JOYCE A. WILSON

To: Plaintiff, City ofEI Paso, by and through its attorney of record, GEORGE HYDE,DENTON, NAVARRO, ROCHA, & BERNAL, 2500 West William Cannon Drive, Suite609, Austin, TX 78745 '1. Please take notice that, under Texas of Civil Procedure 199.1 & 199 2, Intervenor

Stephanie Allala will take the oral and videotaped deposition of JOYCE A. WILSON onOctober 2, 2013, at 1:30 p.m. at the law offices of Stephanie Townsend Allala and Associates,300 East Main Street, Suite 620, El Paso, Texas 79901.


stenographic recording will be conducted by Brannon Rasberry and Associates, 300 E. MainStreet, El Paso, Texas, 79901 .

4. Under Rule 199 2(b (5), Joyce Wilson is requested to produce at the depositionthe following documents within her custody or control that have not been previously provided tothe City of El Paso:

1. E-mails (including emails written using personal email accounts), letters, memoranda,notes, or other forms of written communication regarding any matter of publicbusiness of the City of El Paso from You [Joyce Wilson] to (or copied to, or blindcopied to) any council representative(s) or the Mayor or the City Manager fromJanuary 1, 2012 to October 5, 2012. This request includes all such written

NOTICE OF ORAL DEPOSIDON EXHIBIT PAGE lO F3

~


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communication regardless of whether other persons also were sent thecommunication.

2. From January 1, 2012 to October 5, 2012, E-mails, letters, memoranda, notes, orother forms of written communication regarding public business of the City of ElPaso from You [Joyce Wilson] to (or copied to, or blind-copied to), or from thefollowing persons to You [Joyce Wilson] (or copied to, or blind-copied to You):

a. PaulL. Foster;b. ScottD. Weaver;c. Joshua W. Hunt;d. H. L. Hunt;e. Mountain Star Sports Group LLC or any representative or attorney thereof;f. Franklin Mountain Sports Group LLC or any representative or attorney


This request includes all such wtitten communication regardless ofwhether other personsalso were sent the communication.

NOTICE OFORAL DEPOSITION

111 AleshireTexasBarNo. 24031810RIGGS & ALESHIRE, P.C.700 Lavaca, Suite 920Austin, Texas 78701Telephone: (512) 457-9806Facsimile: (512) [email protected]

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Notice of Oral Depositionhas been served, on August 29,2013, on the following:

BY HAND DELIVERYGEORGE E. HYDEState Bar No. 45006157ERIN HIGGINBOTHAMState Bar No. 24065418Denton, Navarro, Rocha & Bernal2500 W. William Cannon Dr., Suite 609Austin, Texas 78745Telephone: (5 12) 279-6431Facsimile: (5 12) 279-6438george.hyde@rampage-aus [email protected] FOR PLAINTIFF

BY FACSIMILE:Ms. Kimberly L. FuchsChief, Open Records LitigationAdministrative Law DivisionP.O. Box 12549, Capitol StationAustin, Texas 78711-2548Telephone: (512) 475-4195Fax: (512) 320-0167kimberlv fuchs@texasattorneygeneral. gov


NOTICEOF ORAL DEPOSITION

d t t ~ill AlesliireATTORNEY FOR INTERVENOR

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Scott TschirhartFrom:Sent:To:

Scott TschirhartWednesday, August 28, 2013 3:12 PMBil l Alesh ire

Cc :Subject: George Hyde; 'Kimberly Fuchs'; Jacque Meissner; Erin Higginbotham; Lauren CrawfordRE: Allala v El Paso

Bill,That first week in October is tough for me. I have a very contentious hearing before the Ethics Commission that weekand it is going to take some serious prep time.I personally do no t think we can realistically appear by Skype at these depositions and I have no t heard back about clientavailability yet.Best regards,Scott M. TschirhartDenton, Navarro, Rocha & BernalA Professional Corporation2500 W. William Cannon D1ive, Suite 609Austin, Texas 78745Phone: (512) 279-6431Pax: (512) 279-6438Email: [email protected] com

CONFIDENTIALITY NOTICE

This transmission is intended for the individual or entity to which it is addressed, and may be information that is PRIVILEGED &CONFIDENTIAL. If you are no t the intended recipient, or the employee or agent responsible fo r delivering the message to the intendedrecipient and have received this information in error, you are hereby notified that any dissemination, distribution or copying of thiscommunication is prohibited. If you have received this communication in error, please notify us immediately by replying to the message anddeleting if from your computer. Thank you.

From: Bill Aleshire [mailto:qleshire@ r-alaw.com]Sent: Wednesday, August 28, 2013 2:42 PMTo: Scott TschirhartCc: George Hyde; 'Kimberly Fuchs'; Jacque Meissner; Erin Higginbotham; Lauren CrawfordSubject: RE: Allala v El PasoScott, We need to get these depositions scheduled and the Notices issued:

EXHIBITj1 I propose to take Susie Byrd's deposition on Monday, September 30 at 10:00 a.m. (Central; 9:00a.m.Mountain) at 300 East Main Street, Suite 620, El Paso, Texas 79901. A court rep01ter will be present,and I will appear by Skype. 2 I propose to take Joyce Wilson 's deposition on Monday, September 30 at 2:30p.m. (Central; 1:30 a.m.Mountain) at the same location.

1


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Scott TschirhartFrom:Sent:To:Cc:

Scott TschirhartTuesday, August 27, 2013 3:41 PMBill Aleshire

Subject:George Hyde; Kimberly Fuchs; Jacque Meissner; Erin Higginbotham; Lauren CrawfordRe: Allala vEl Paso

I'm sorry Bill.I'm in Bay City today and it slipped my mind that i needed to get back with you. I think it would be helpful to see yourduces tecum. I'm not sure that you are going to be asking fo r anything that we are not giving the public voluntarily.Please forward a copy of your proposed duces tecum by e-mail.Be st regards,Scott M. TschirhartSent from my iPadOn Aug 27, 2013, at 3:28 PM , "Bill Aleshire" wrote:

George, I have no heard from Scot Tschirhart. Can we get dates agreed to by tomorrow so I can serve theno tices and duces tecum?

Riggs Aleshire & Ray PC700 Lavaca, Suite 920Austin, Te xas 78701512 457-9838 direct512 750-5854 cell512 457-9066 [email protected]

From: George Hyde [mailto:[email protected]]Sent: Monday, August 26, 2013 2:39PMTo: Bill AleshireCc: 'Kimberly Fuchs'; Jacque Meissner; Scott Tschirhart; Erin Higginbotham; Lauren Crawford; ScottTschirhartSubject: RE: Allala v El PasoDear Bill:Scott Tschirhart in my office will be in touch with you on the discovery issues if necessary.

EXHIBIT

I E


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As you may know, the City Council recently authorized us to release the previouslyaccessible but undisclosed documents in your case and we will be requesting anyinaccessible documents from the current and former council members/city manager that wehave not had access to that may relate to your request. The City has further authorized usto provide to you anything we obtain. Once we have al l the materials we intend to producethem without regard to this lawsu it to you and any other requestor.We hope that this can be done quick ly but think with the holiday, it would likely becompleted in acouple weeks. Perhaps you would like to wait and see what we are able toprovide before going through the cost and expense of attempting discovery that will likelyserve no purpose. Otherwise, we can look at October dates for the depositions, assumingthere is nothing objectionable in your discovery requests. I would suggest that after you areable to review what we will be releasing, you can decide at that time if you think thediscovery is still needed.Thank you for your courtesies.Very truly yours,~ ~ ~ E . I f ~Managing Partner- Austin OfficeEmail: [email protected]: 210-325-4330Office: 512-279-6431Denton, Navarro, Rocha &BernalA Professional Corporation2500 W. Wlliam Cannon, Suite 609Austin, Texas 78745Voice: 512-279-6431Facsimile: 512-279-6438rampagelaw.com

From: Bill Ales hire [mailto:aleshire@ r-a law.com]Sent: Thursday, August 22, 2013 5:31 PMTo: George HydeCc: 'Kimberly Fuchs'; Jacque Meissner; Scott Tsch irhart; Erin Higg inbotham; Lauren Cra wfordSubject: RE: Allala vEl PasoGeorge, I am also available in September for these depositions, if you will agree to sh01ien the responsetime on the RFP (duces tecum) from the 30-day rule.

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Riggs Aleshire & Ray PC700 La vaca, Suite 920Austin, Texas 78701512 457-9838 direct512 750-5854 cell512 457-9066 [email protected]

From: George Hyd e [mailto:[email protected]]Sent: Thursday, August 22, 2013 5:18 PMTo: Bill AleshireCc: 'Kimberly Fuchs'; Jacque Meissner; Scott Tschirhart; Erin Higginbotham; Lauren CrawfordSubject: RE: Allala vE l PasoDear Bill:I am traveling and out of the office until Monday. I will try to respond to your emails over theweekend or on Monday.Very truly yours,

~ u ; ~ E. IfFManaging Partner- Austin OfficeEmail: [email protected]: 210-325-4330Office: 512-279-6431Denton, Navarro, Rocha &BernalA Professional Corporation2500 W. William Cannon, Suite 609Austin,Texas78745Voice: 512-279-6431Facsimi le: 512-279-6438rampagelaw.com

From: Bill Aleshire [mailto :a [email protected]]Sent: Thursday, August 22, 2013 5:15 PMTo: George HydeCc: 'Kimberly Fuchs'Subject: RE: Allala v El PasoBy the way, George, if the City Council wanted to settle even the po1tion of our lawsuit related toredacting email addresses of"members of the public," the individuals could voluntarily give theirpermission for the email addresses to be divulged pursuant to TPIA section 552.137(b). We don' t mind

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litigated that issue, but it becomes moot if all of the Council Reps consent to the disclosure and the Cityprovides the unredacted records.Sec. 552.137. CONFIDENTIALITY OF CERTAIN E-MAIL ADDRESSES. (a) Except as otherwiseprovided by this section, an e-mail address of a member of the public that is provided for the purpose ofconmmnicating electronically with a govenunental body is confidential and not subject to disclosmeunder this chapter.(b) Confidential infonnation described by tllis section that relates to a member of the public may bedisclosed if the member of the public affirmatively consents to its release.(c) Subsection (a) does not apply to an e-mail address:(1) provided to a goverm11ental body by a person who has a contractual relationship with thegovenunental body or by the contractor's agent;(2) provided to a govermnental body by a vendor who seeks to contract with the govemmental body orby the vendor's agent;(3) contained in a response to a request for bids or proposals, contained in a response to similarinvitations soliciting offers or infonnation relating to a potential contract, or provided to a govemmentalbody in the comse of negotiating the terms of a contract or potential contract;(4) provided to a govemmental body on a letterhead, coversheet, printed document, or other documentmade avai lable to the public; or(5) provided to a govermnental body for the purpose of providing public conunent on or receivingnotices related to an application for a license as defined by Section 2001.003(2) of tills code, or receivingorders or decisions from a govenunental body.(d) Subsection (a) does not prevent a govenm1ental body from disclosing an e-mail address for anyreason to another govermnental body or to a federal agency.

Riggs Aleshire & Ray PC700 Lavaca, Suite 920Austin, Texas 78701512 457-9838 direct512 750-5854 cell512 457-9066 [email protected]

From: Bill Aleshire [mailto:a leshire@r-a law.com]Sent: Wednesda y, August 14, 2013 8:05AMTo: 'George Hyde'Cc: 'Kimberly Fuchs 'Subject: RE : Allala vE l PasoGeorge, I haven' t heard from you since our meeting to discuss settlement. If the case is notgoing to settle, we need to get a hearing set in September for a Motion to Compel.

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Riggs Aleshire & Ray PC700 Lavaca, Suite 920Austin, Texas 78701512 457-9838 direct512 750-5854 cell512 45 7-9066 [email protected]

--- - - - - - - - - - - - - -From: Bill Aleshire [mailto :a [email protected]]Sent: Monday, July 22, 2013 6:21 PMTo: 'George Hyde'Cc: Kimberly FuchsSubject: Alla la v El PasoGeorge,

------

Here is how I would summarize Ms. Allala 's position regarding the City's inquiry aboutsettlement of tllis lawsuit as a result of the discussion we had today with Kim Fuchs, Asst.Attorney General, Sylvia Firth, you and me:

1. Ms. Allala is not willing to give up on getting public disclosure of correspondenceconducted between the Mayor, City Council, and City Manager about city business asrequested in her open records request over 9 months ago. Asking her to do so is notasking for a settlement, it 's asking her to surrender her quest for transparency.2. I was pleased to hear from the City Attorney that this City Council wants to stmioperating in a more open fashion than prior Councils, and not conduct public businessusing personal email accounts, and when personal email accounts are used, to promptlyforward that conespondence into the City's servers to facilitate the public infonnationprocess. I f all the members of tllis Council, and the City Manager, understand what isand what is not public business-a necessary predicate for pursuing tllis new

transparency and compliance with long-standing records retention laws-then each of theCouncil members and the City Manager have the skill and understanding how to go backto their personal email accounts and provide the City with any emails that were witllin thescope ofMs. Allala's open records request, thus facilitating the City's disclosure of thatcorrespondence, and, I might add, facilitating settlement of this lawsuit.

3. If all the persons to whom the Allala open records request was addressed (Council andCity Manager) have already turned over all records within the scope of that request, thenwe would request that that be documented in a sworn statement from each of them to thateffect.

4. If some of the persons to whom the Allala open records request was addressed havecontinued to withhold records that were in their possession at the time of the request andthat are within the scope of the request, then, if they want this case to settle, those Cityofficials must turn those records over for public disclosure and sign a sworn statementthat they have then turned over all responsive records in their possession.

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5. If some the persons to whom the Allala open records request was addressed insist onretaining records within the scope of the request, then, in order to settle the case, wewould expect the City Council to b1ing suit against those City Council officials, fonnerofficials, or City Manager, pursuant to the Local Government Records Act, to requirethem to tum over to the City the "local government records" in their possession.6. We expect Ms. Allala' s attomey fees and direct costs related to this lawsuit, so farestimated to be about $2,500, will be paid as part of any settlement.7. We believe that the redaction ofthe email addresses used by City Council members andthe City Manager to communicate with each other about city business are not confidentialand cannot be redacted, despite the ruling to the contrary by the Attorney General. Wewould need to reso lve this issue as part of any settlement.If this matter is not settled on these terms, it is my intention to continue with discovery,including depositions of the City Manager and Council members who had possession ofresponsive records but have not turned them over. That discovery would be pursued inAugust and September. Finally, let me say that Ms. Allala hopes this matter can be settled,and that a new day of greater transparency has truly come upon the City ofEl Paso, but thatnew day crumot start until all the Council Reps and the City Manager disclose the requestedrecords ofpast public business they still personally possess.

Riggs Aleshire & Ray PC700 Lavaca, Suite 920Austin, Texas 78701512 457-9838 direct512 750-5854 cell512 457-9066 [email protected]

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Dedicated to Outstanding Customer Service for a Better CommunityS E R V I C E SOLUTIONS SUCCESS

August 29 , 20 13

Ms. Susie Byrd2701 Louisville St.El Paso, TX 79930Dear Susie Byrd,As you are aware, on Tuesday, August 20,2013, the City Council authorized me asthe City's Public Information Officer to exercise the authority granted to thegoverning body to request the voluntarily submission of any e-mails maintained inprivate e-mail accounts which are responsive to the requests for public informationcurrently pending resolution in Travis County District Court (the "District Court").There are currently seven (7) requests for information from private e-mail accountspending in the District Court. Enclosed is a form summarizing each request that isseeking information from your personal e-mail accounts. If you wish to see theoriginal request in its entirety or have questions regarding the scope of the requestplease contact my office.Please review the request and execute each enclosed form indicating your responseto the request for voluntary submission. Note that the information you provide tothe City will be released to the public. Please provide the executed forms and anyresponsive documents to my office on or before close of business on Monday,September 16,2013.Sincerely,

a ~ . , ~ d , -i&TewilsonCity Manager

EXHIBITI FCity Hall 1300 N. Campbell I El Paso, Texas 799011 (915) 541-4844


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REQUEST 1 CAG ID# 472215)As the City's Public Information Officer, I am hereby requesting that you voluntarily turn over tothe City any documents that you have in any of your personal e-mail accounts that are responsiveto the following requests:

E-mai]s sent to or from your personal e-mail accounts to or from the Mayor, otherCouncil Representatives, or the City Manager regarding any matter of public business ofthe City ofEl Paso sent from January 1, 20 12 to September 5, 2012.

E-mails sent to or from your personal e-mail accounts to or from Paul L. Foster; Scott D.Weaver; Joshua W. Hunt; H.L. Hunt; Mountain Star Sports Group LLC or anyrepresentative or attorney thereof; Franklin Mountain Sports Group LLC or anyrepresentat ive or attorney thereof; Hunt Holdings Sports Group LLC or anyrepresentative or attorney thereof regarding public business of the City of El Paso sentfrom January 1, 20 12 to September 5, 2012.

- - - - - - - - - - - ' have reviewed the above request for information from myprivate e-mail accounts and respond as follows:D I have searched my private e-mail accounts for the requested information and thecommunications responsive are enclosed.D I have searched my private e-mail accounts for the requested information, but have nocommunications responsive to the request.D Other:------------- --- -----------Signarure: ___________________________ Date:------------- -


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REQUEST 2 (AG ID# 472215)As the City's Public Information Officer, I am hereby requesting that you voluntarily tum over tothe City any do cuments that you have in any of your personal e-mail accounts that are responsiveto the following requests:

E-mails sent to or from your personal e-mail accounts to or from the Mayor, otherCouncil Representatives, or the City Manager regarding any matter of public business ofthe City of El Paso sent from September 6, 2012 to October 5, 2012.

E-mails sent to or from your personal e-mail accounts to or from PaulL. Foster; Scott D.Weaver; Joshua W. Hunt; H.L. Hunt; Mountain Star Sports Group LLC or anyrepresentative or attorney thereof; Franklin Mountain Sports Group LLC or anyrepresentative or attorney thereof; Hunt Holdings Sports Group LLC or anyrepresentative or attorney thereof regarding public business of the City of El Paso sentfrom September 6, 2012 to Oc tober 5, 2012.

- - - - - - - - - - - ' have reviewed the above request for information from myprivate e-mail accounts and respond as fo llows:D I have searched my private e-mail accounts for the requested information and thecommunications responsive are enclosed.D I have searched my private e-mail accounts for the requested information, but have nocommunications responsive to the request.D Other:-------------------------S igna tu re : - - - ---- --------- Date: - - - - - - - - - - - - - -


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REQUEST 3 (AG TD#473978)As the City's Public Information Officer, I am hereby requesting that you voluntarily turn over tothe City any documents that you have in any of your personal e-mail accounts that are responsiveto the following request:

Emails and text messages sent to or from your personal e-mail accounts or devices to orfrom Joyce Wi lson regarding the downtown ballpark from June 1, 2012 to September 22,2012.

Emails and text messages sent to or from your personal e-mail accounts or devices to orfrom Joyce Wilson, John Cook, Ann Morgan Lilly, Susie Byrd, Emma Acosta, Michie!Noe, Steve Ortega, and Cortney Niland regarding the downtown ballpark from June 1,2012 to June 27,2012.

I , have reviewed the above request for information from myprivate e-mail accounts and respond as follows:D I have searched my private e-mail accounts for the requested information and thecommunications responsive are enclosed.D I have searched my private e-mail accounts for the requested information, but have nocommunications responsive to the request.D Other:-------------------------Signature: _______________ Date: - - - - - - - - - -- -


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REQUEST 3 (AG ID# 473978)- FOR JOYCE WILSON ONLYAs the City's Public lnfonnation Officer, I am hereby requesting that you voluntarily tum over tothe City any documents that you have in any of your personal e-mail accounts that are responsiveto the following requests:

Emails and text messages sent to or from your personal e-mail accounts or devices to orfrom John Cook, Ann Morgan Lily, Susie Byrd, Carl Robinson, Emma Acosta, Michie!Noe, Steve Ortega or Cortney Niland regarding the downtown ballpark from June 1, 2012to September 22, 2012 .

Emails and text messages sent to or from your personal e-mail accounts or devices to orfrom Joyce Wilson, John Cook, Ann Morgan Lilly, Susie Byrd, Emma Acosta, MichielNoe, Steve Ortega, and Cortney Niland regarding the downtown ballpark from June 1,2012 to June 27,2012.

I , have reviewed the above request for information from myprivate e-mail accounts and respond as follows:D I have searched my private e-mail accounts for the requested infonnation and thecommunications responsive are enclosed.D I have searched my private e-mail accounts for the requested information, but have nocommunications responsive to the request.D Other:___ _ ____________________ _ _S igna t u r e : - - - -- ----------- Date: -------------- -----


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REQUEST 3 (AG ID# 473978)- FOR CARL ROBINSON ONLYAs the City's Public Infonnation Officer, I am hereby requesting that you voluntarily tum over tothe City any documents that you have in any ofyour personal e-mail accounts that are responsiveto the following requests:

Emails and text messages sent to or from your personal e-mail accounts or devices to orfrom John Cook, Ann Morgan Lily, Susie Byrd, Carl Robinson, Emma Acosta, MichielNoe, Steve Ortega or Cortney Niland regarding the downtown ballpark from June 1, 2012to September 22, 2012.

----------- 'have reviewed the above request for infom1ation from myprivate e-mail accounts and respond as follows:D I have searched my private e-mail accounts for the requested information and thecommunications responsive are enclosed.D I have searched my private e-mail accounts for the requested information, but have nocommunications responsive to the request.D O ther : - - - - - - -- - - - - ------------Signature:- - - - - - - - - - - - - - - - - Date: - - - - - - - - - - - - - -


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REQUEST 4 (AG ID# 481920)As the City's Public Infonnation Officer, I am hereby requesting that you voluntarily turn over tothe City any documents that you have in any of your personal e-mail accounts that are responsiveto the following request:

E-mails sent to or from your personal e-mail accounts to or from Paul L. Foster; Scott D.Weaver; Joshua W. Hunt; Woody Hunt (also known as Woodley Hunt, W.L. Hunt, andsimilar names for the same person); Mountain Star Sports Group LLC or anyrepresentative or attorney thereof; Franklin Mountain Sports Group LLC or anyrepresentative or attorney thereof; Hunt Holdings Sports Group LLC or anyrepresentative or attorney thereof regarding any matter of public business of the City ofEl Paso sent from January 1, 20 12 to December 21, 2012.

I , have reviewed the above request for information from myprivate e-mail accounts and respond as follows:D I have searched my private e-mail accounts for the requested information and thecommunications responsive are enclosed.D I have searched my private e-mail accounts for the requested information, but have nocommunications responsive to the request.D Other:------------------------Signarure: _______________________________ Date: ----------------------


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REQUEST 5 (AG ID# 484002)- FOR JOYCE WILSON ONLYAs the City's Public Information Officer, I am hereby requesting that you voluntarily turn over tothe City any documents that you have in any of your personal e-mail accounts that are responsiveto the fo !lo wing requests:

E-mails sent to or from your personal e-mail accounts sent from August 1, 2012 toAugust 31 2012 that inc!ude the following content:

"FYI - I sent this email to Ann and then forwarded to Debbie. We can beat thesepetition things by nailing them on the Notary Public's certification .. City ought togo after this.. .ask Richarda . . ";"I am going to ask Jim Tolbert who notarized his petitions and did a notary standthere and witness each and every signature";"notary";"notary certification"; or"petition.''____ _ _____ __, have reviewed the above request for information from my

private e-mail accounts and respond as follows:D I have searched my private e-mail accounts for the requested information and thecommunications responsive are enclosed.D I have searched my private e-mail accounts for the requested infonnation, but have nocommunications responsive to the request.D Other:--- -------------- --------Signature: ___ _____________ Date:


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REQUEST 6 CAG fD# 484002)- FOR ANN MORGAN LILLY AND DEBBIE HAMLYNONLYAs the City's Public Information Officer, 1am hereby requesting that you voluntarily tum over tothe City any documents that you have in any of your personal e-mail accounts that are responsiveto the following requests:

E-mails sent to or from your personal e-mail accounts sent from August 1, 2012 toAugust 31, 2012 that include the following content or related content:

"So last night this petition was being circulated and some of us thought it was asign in sheet. We removed our names but I kept one sheet. Look at the bottomwhere the notary has to sign. Read my other attachments on prohibited acts bynotaries. Every signature on a petition must be physically signed in front of anotary. If a notary certifies this petition and did not see these people sign thenthey are breaking the law.I have to ask-does Richarda get any kind of affidavit from the notary that signspetition to actually prove they witnessed these people signing? I don't think so.This is a way to throw out each and every petition that comes to the City.I am going to ask Jim Tolbert who notarized his petitions and did a notary standand witness each and every signature."

I , have reviewed the above request for infonnation from myprivate e-mail accounts and respond as follows:D I have searched my private e-mail accounts for the requested information and thecommunications responsive are enclosed.D I have searched my private e-mail accounts for the requested information, but have nocommunications responsive to the request.D Other:------------------------Signature:---------------- Date:------------


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REQUEST 7 (AG ID # 486144)- FOR STEVE ORTEGA ONLYAs the City's Pub lic Information Officer, I am hereby requesting that you voluntarily tum over tothe City any documents that you have in any of your personal e-mail accounts that are responsjveto the following requests:

All e-mails sent to or from your personal e-mail accounts that relate to official business,with the exception of e-mails regarding sympathy or condolences, sent from January 1,20 11 to December 31, 20 11 and from September 5, 2012 to January 22, 2013.

, have reviewed the above request for information from my----------------------private e-mail accounts and respond as fo llows:D I have searched my private e-mail accounts for the requested information and thecommunications responsive are enclosed.

D I have searched my private e-mail accounts for the requested infonnation, but have nocommunications responsive to the request.D Oth e r : - ------------------------Signature: - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Date: - - - - - - - - - - - - - - - - - -- - - -

city of el paso in court to quash townsend allala's depos of wilson, niland, byrd

Documents