contempt filing

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION THE GIL RAMIREZ GROUP, L.L.C.; § AND GIL RAMIREZ, JR. § § Plaintiffs, § § v. § Case. No. 4:10-CV-04872 § § HOUSTON INDEPENDENT SCHOOL § DISTRICT; LAWRENCE MARSHALL; § EVA JACKSON; AND RHJ-JOC, INC. § § Defendants. § PLAINTIFF, GIL RAMIREZ GROUP, LLC’S MOTION FOR CIVIL CONTEMPT AND MOTION TO COMPEL FORT BEND MECHANICAL TO RESPOND TO SUBPOENA

Plaintiff, Gil Ramirez Group, LLC, files this Motion for Civil Contempt and Motion to

Compel Fort Bend Mechanical to Respond to the Subpoena.

Summary of Motion

1. On September 30, Plaintiff inspected 73 boxes of documents produced by Fort Bend

Mechanical in response to a subpoena. Plaintiff marked documents for copying with two

lawyers spending a combined nine hours. Prior to the arrival of the copy service, Fort

Bend Mechanical removed most of the documents from the boxes set-aside for the copy

service. Fort Bend Mechanical has intentionally withheld documents including those

evidencing payments to Larry Marshall, Joyce Moss Clay and invoices paid by Fort Bend

Mechanical to a crane company for a generator installed at Joyce Moss Clay’s home.

Plaintiff seeks production of those documents and attorneys fees in the amount of $1375.

Exhibit 1.

Case 4:10-cv-04872 Document 57 Filed in TXSD on 10/14/11 of 16

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Background Facts

2. Plaintiff served a Deposition on Written Question with a Subpoena Duces Tecum on the

custodian of records of Fort Bend Mechanical on or about September 15, 2011. Exhibit 3

and 2.

3. On September 20, 2011, the attorney for Fort Bend Mechanical informed the record

services company that there were 150 to 200 boxes for pick-up and copying. Exhibit 4.

4. In order to avoid an expensive copy bill, Plaintiff arranged to inspect the 150 to 200

boxes and select for copying the documents Plaintiff wished to obtain. Exhibit 5. The

only objection made by Fort Bend Mechanical was to the production of tax returns.

Exhibit 6.

5. On Friday, September 30, 2011, Plaintiff’s attorney Kelly Prather inspected 73 (not 150-

200 as previously stated) boxes for six hours in the Fort Bend Mechanical warehouse.

Plaintiff’s attorney Chad Dunn inspected the boxes for three hours on that day as well.

Each box was numbered by the Plaintiff and notes were taken of the contents of the box.

Plaintiff attached a post-it note to each file that was marked for copying inside the box.

On the outside of the box, another post-it note was placed indicating what was inside the

box which needed copying. Then the boxes which contained documents that required

copying were set in a different section of the warehouse than the boxes which did not

have documents that needed copying. Photos were taken of some key documents in the

event those documents went missing before they could be copied. Exhibits 7-16. There

were approximately 15 boxes out of the 73 boxes that contained documents which

Plaintiff marked for copying.

6. No objections or reservations to the copying or inspection of documents were made by


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Fort Bend Mechanical other than a statement regarding the production of tax returns.

7. On Monday, October 3, 2011, Plaintiff sent a copy service to retrieve the documents.

Fort Bend Mechanical would not release the documents until it heard from its attorney.

Plaintiff called and left a message with the attorney for Fort Bend Mechanical and also

sent a fax asking for him to tell his client to release the documents for copying. Exhibit

17.

8. Later that day Fort Bend Mechanical, through its attorney, informed Plaintiff that it was

not releasing certain documents that were marked for copying because they were

allegedly outside the scope of the subpoena — more likely they were withheld due to the

behavior they uncovered. Fort Bend Mechanical further stated that it was removing other

documents which were responsive to the subpoena such as a copy of a check for $25,000

from David Medford to Lawrence Marshall noted as a campaign contribution and which

Fort Bend Mechanical reimbursed David Medford for that expense. Exhibit 7. Fort Bend

Mechanical was now asserting that it would select which documents would be available

for copying despite previously offering for the records service to retrieve 150 to 200

boxes for copying and allowing two attorneys to spend nine hours inspecting 73 boxes in

an un-air-conditioned warehouse. Exhibit 18.

9. The copy service picked up a single box of documents on Tuesday, October 4, 2011.

10. On Wednesday, October 5, 2011, Plaintiff received a copy of the documents selected by

Fort Bend Mechanical after the inspection on September 30. Most of the documents

Plaintiff spent time marking for copying were not included. However, 668 pages they did

not mark for copying were included. The copy service charged $.20 a page to copy.

Thus, Plaintiff paid for $133.60 for copies of documents it did not select for copying.


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Exhibit 19.

11. On Friday, October 7, 2011, Plaintiff sent a detailed letter to Fort Bend Mechanical

regarding the documents that were not produced. Exhibit 20. Plaintiff requested that the

documents which were squarely within the scope of the subpoena be produced

immediately. Plaintiff further requested that the documents outside the subpoena should

be produced because no prior objection or reservation was made prior to producing the

documents.1 Plaintiff requested that Fort Bend Mechanical’s attorney contact Plaintiff’s

attorneys to schedule a telephone conference on either October 10 or 11 to discuss the

discovery issues. Fort Bend Mechanical did not make contact with either Plaintiff’s

attorney.

12. On Wednesday, October 12, Plaintiff called the attorney for Fort Bend Mechanical to

conference with him about the document production.

13. On Thursday, October 13, the attorneys for Plaintiff and Fort Bend Mechanical finally

discussed document production. Fort Bend Mechanical agreed to produce the documents

that were responsive to the subpoena and thought that it had done that on October 5.

After the conversation, Plaintiff sent Fort Bend Mechanical a fax listing out each

document that was missing, which box it was contained in, and to which request it was

responsive. Exhibit 21. The fax number was reconfirmed before faxing. A second fax

was sent about one hour later describing with particularity one of the category documents

missing from the previous production. Exhibit 22. Plaintiff asked for the documents to

be emailed or faxed by 5:00 p.m. because there were not very many documents, less than

1 Plaintiff should not have to undertake the time and expense to send new documents

requests when 150 to 200 boxes were affirmatively offered for copying with no objection or


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one hundred pages, and they were easy to locate since Plaintiff had numbered all of the

boxes at the inspection. Exhibit 8. At 4:00 p.m. Plaintiff had received any document.

Plaintiff contacted Fort Bend Mechanical another time to inquire about the documents.

The attorney was no available so a detailed message was left.

14. As of the morning of October 14, fourteen days after the document inspection, Plaintiff

has not received the documents or otherwise heard from Fort Bend.

15. Plaintiff files this Motion for Civil Contempt and Motion to Compel for the following

documents that are clearly responsive to the subpoena served on September 15 and were

removed by Fort Bend Mechanical from the selection of documents marked for copying.

Plaintiff also requests the Court order Fort Bend Mechanical to produce copies of all

those documents marked, whether responsive to the subpoena or not in order to avoid

unnecessary delay.

16. The subpoena requests to which responsive documents have been withheld are as

follows:

Request 5. All invoices received from or sent to Joyce Moss-Clay, individually and d/b/a JM Clay and Associates.

Request 7. All checks, cash withdrawals or other evidence of payments made to Joss (sic) Moss Clay, Larry Marshall or any entity associated therewith.

Request 8. All documents that evidence an oral contract, agreement and understanding between you and Joyce Moss-Clay, individually and d/b/a JM Clay and Associates.

Request 10. All checks, receipts, and other documents that reflect, refer or relate to any payments made by you in order to obtain approval as a JOC contractor for HISD.

17. The documents which are clearly responsive to the subpoena and were marked for

reservation other than tax returns. A second document request will cause a two month delay.


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copying but not produced are described as follows:

Box No.

Description of Box Contents

Marked for Copying Relevance

7 Accounts Receivable

File labeled “Ms. Joyce Home 33192” containing a purchase order with Joyce Moss Clay’s address on it and invoice to Fort Bend Mechanical from Reed Crane & Rigging for moving a generator to Ms. Clay’s home.

One purchase order and invoice in which

Fort Bend Mechanical paid Crawford

Electric for materials for Joyce Moss Clay’s

home was received but not the invoice,

purchase order, and payment to Reed

Crane & Rigging. A photo was made of

Reed Crane & Rigging Purchase

Order but Plaintiff requests a copy of the

actual document.

16 Accounts Payable July to December 2009

LM Consulting Group Payments of $3000 a month, No invoices detailing what services were rendered by consultant. Some LM Consulting Group payments were received but not the ones from this box.

LM Consulting is owned by Lynden Rose who is a law partner in the firm

defending Ms. Jackson and RHJ-

JOC. Regularly monthly payments

were made with no proof of a detailed

invoice.


File labeled “JM Clay” or “JM Clay & Associates” payments of $3000 a month and checks for $3000 a month to JM Clay.

Some invoices and payments were

received regarding JM Clay & Associates but not the ones from

this box.

64 Employee and Owner Expense Reimbursements

Employee and Owner Reimbursed Expenses Files which contain a copy of documents evidencing payments to Larry

All payments made to Marshall, Clay or

entity they are


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Box No.

Description of Box Contents


Marshall or Joyce Moss Clay from either Fort Bend Mechanical or a Fort Bend Mechanical owner or employee for which they were reimbursed by Fort Bend Mechanical for that expense. This would include campaign contributions. This includes the $25,000 check from David Medford to Larry Marshall’s campaign.

associated with are relevant regardless of

whether made personally then

reimbursed by Fort Bend Mechanical

In addition, this is a list of the outside of the scope of the subpoena documents marked by

the Plaintiff but not produced by Fort Bend Mechanical:

No. Description of Box Contents



1. American Express Credit Card Statements 2. Bank of America Credit Card Statements

There are comments made by owners and employees

on the statements explaining the charges.

Plaintiff wants to examine whether there are charges

for gifts to Clay or Marshall.

15 AT&T Cell Phone Bills January to June 2009

Cell phone Bills Plaintiff would like to examine the cell phone

bills for calls made to Clay or Marshall.


1. LM Consulting Group Payments of $3000 a month, No invoices detailing what services were rendered by consultant. 2.Gary P. Pearson Consultant Consulting Fee $2500 a month. No invoices detailing what services were rendered

Plaintiff would like to examine further

unexplained monthly payments to law partner of

firm defending Jackson and RHJ-JOC in this suit.

Mr. Pearson received unexplained $2500 a

month payments. Plaintiff


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by consultant. would like to further examine that relationship.

18 Accounts Payable July through December 2009

Filed labeled “Gary Pearson” payment for $2500 a month. Emails from Pearson requesting Premium Longhorn tickets from Pete Medford. No invoices detailing services provided.


month payments. Plaintiff would like to further

examine that relationship. Mr. Pearson is requesting

Longhorn tickets to give to someone else. Plaintiff

would like to further examine to whom and why

the tickets were given.

19 Accounts Payable January through June 2009

Filed labeled “Gary Pearson” payment for $2500 a month. No invoices detailing services provided.



examine that relationship.


Discover Credit Cards There are comments made by owners and employees





1. Pate Consulting, Inc. - invoices detailing services provided. Appears to be legitimate consultants. 2. Deer lease payments for Casa Monte Lodge 3.Filed labeled “Gary Pearson” payments of $2500 a month. No invoices detailing services provided.

Pate Consulting submitted detailed billing statements

for its consulting work. Plaintiff wanted to

demonstrate the difference between the billing

statement for true services versus the invoices from

Clay, LM Consulting and Pearson.

Plaintiff would like to

investigate whether


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4. Verizon Wireless Bills Marshall or Clay were hosted on a hunting trip.



examine that relationship. Plaintiff would like to

examine the cell phone bills for call between Fort

Bend Mechanical and Marshall or Clay

24 Accounts Payable January through June 2009

1. American Express Credit Card Statements 2. Bank of America Credit Card Statements 3. ABM Janitorial Invoices





36 Accounts Receivable Services Provided to John Thomas, former employee of RHJ-JOC and Fort Bend Mechanical

John Thomas is a former employee of RHJ and Fort

Bend Mechanical. It appears that Fort Bend

Mechanical provided free labor and materials.

Plaintiff would like to depose Mr. Thomas about

his time at RHJ and Fort Bend Mechanical.

Plaintiff wanted to further examine why he might

have received free materials from Fort Bend

Mechanical.

49 Accounts Payable 2010 Cell phone records Plaintiff would like to examine the bills for phone

calls between Fort Bend Mechanical and Clay and


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Marshall.

55 Accounts Payable 2010 Bank of America Credit Cards Statements





60 Accounts Payable 2010 American Express Credit Card Statements





62 Accounts Payable 2010 Verizon Wireless There are comments made by owners and employees




Argument

18. Federal Rule of Civil Procedure 45(d)(1) and (2) provides, in relevant part, that:

(d) Duties in Responding to Subpoena. (1) Producing Documents or Electronically Stored Information.

These procedures apply to producing documents or electronically stored information:

(A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize


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and label them to correspond to the categories in the demand....

(2) Claiming Privilege or Protection.

(A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must:

(i) expressly make the claim; and

(ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.

19. Federal Rule of Civil Procedure 45(e) provides:

(e) Contempt.

The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(c)(3)(A)(ii).

20. Federal Rule of Civil Procedure 45(c)(3)(A)(ii) provides, in part, that a subpoena may not

require a person who is neither a party nor a party's officer to travel more than 100 miles

from where that person resides, is employed, or regularly transacts business in person.

The movant has the burden of proving contempt with clear and convincing evidence that

a court order was in effect and the order required certain conduct by the respondent and

the respondent failed to comply with the court order. Lyn-Lea Travel Corp. v. American

Airlines, Inc., 283 F.3d 282, 291 (4th Cir. 2002). A subpoena is a court order that requires

a person to whom it is directed to give testimony or produce evidence. In re Rosenthal,

2008 WL 983702 (S. D. Tex. 2008). A federal court may exercise its inherent power to

ensure justice. Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991).

21. In this matter, the evidence is undisputed that the documents exist. It is also clear that


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they are responsive to the requests in the subpoena. Fort Bend Mechanical never filed

objections to the subpoena.2 Fort Bend Mechanical failed to produce all of the

documents selected by Plaintiff’s counsel for production and responsive to the subpoena.

Specifically, Fort Bend Mechanical has failed to produce checks sent to Joyce Moss

Clay, JM Clay and Associates, Larry Marshall, Larry Marshall’s campaign, and purchase

orders made by Fort Bend Mechanical and invoices sent to and paid by Fort Bend

Mechanical for crane company installing a generator at Joyce Moss Clay’s home.

22. It is clear that Fort Bend Mechanical is intentionally withholding responsive documents.

23. Plaintiff requests the court to order Fort Bend Mechanical to produce the documents

immediately and pay attorney’s fees in the amount of $1375.

24. Plaintiff further requests that the Court order Fort Bend Mechanical to produce documents

that were made available for copying and marked for copying but fall outside the scope

of the subpoena. Fort Bend Mechanical should have objected or made some effort to

reserve production of non-responsive documents if they were contained with the

responsive documents produced as kept in the ordinary course of the business. See,

Calvert v. Reinish, 218 FRD 497, 501 (W.D. Tex. 2003) (holding that a non-party

properly preserved its right through a prior objection to prevent the plaintiff from copying

documents made available at an inspection but which were not responsive to the

subpoena.) In this case, Fort Bend Mechanical’s lack of objection coupled with its

affirmative offer to have the records service copy all of the documents in order to respond

to the subpoena amounts to a waiver of now objection to producing the non-responsive

2 In fact, Fort Bend Mechanical has failed to response to the actual written portion of the

subpoena at all. Such written portion contained admissibility questions that are standard with a


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documents.

Prayer

For these reasons, Plaintiff prays that the Court orders Fort Bend Mechanical to

produce documents responsive to subpoena requests 5, 7, 8, and 10, produce the non-

responsive documents marked for copying, pay $1375 in attorney’s fees, and for all other

relief to which it is entitled.

Respectfully submitted,

BRAZIL & DUNN

By: /s/ Kelly G. Prather Chad W. Dunn – TBN 24036507 Fed. I.D. No. 33467 K. Scott Brazil – TBN 02934050 Fed. I.D. No. 2585 4201 FM 1960 West, Suite 530 Houston, Texas77068 Telephone: (281) 580-6310 Facsimile: (281) 580-6362 E-Mail: [email protected] E-Mail: [email protected] THE GREENWOOD PRATHER LAW FIRM Kelly Greenwood Prather S.D. TX. No 21829 State Bar No. 00796670 1300 McGowen Street Houston, Texas 77004 (713) 333-3200 telephone (713) 621-1449 facsimile E-Mail: [email protected] ATTORNEYS FOR PLAINTIFFS

Certificate of Conference and Affidavit of Kelly Prather record service request.


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I certify that on September 21, 2011, co-Plaintiffs' counsel, Chad Dunn, spoke with Mike McGann, attorney for Fort Bend Mechanical. Mr. McGann told him there were 150 to 200 boxes of documents to review that were responsive to the subpoena. Mr. Dunn asked for available dates to perform an inspection. Mr. McGann stated that there was nothing in the documents that could interest Plaintiffs. Notwithstanding that representation, Mr. Dunn again requested an inspection date and September 28-30 were offered. Mr. McGann sent a letter confirming the inspection for September 28. Mr. Dunn then sent a letter confirming for September 30. In these letters, the parties agreed to forgo production of tax returns at this time. I conferred with Mr. McGann on Monday October 3, 2011 at 2:30 pm following an all-day document inspection the Friday before on September 30. In the call on Monday, Mr. McGann informed me that he would not allow the copy service to copy everything we marked for copying. I expressed confusion because two weeks earlier, Mr. McGann had offered for the records company to pick-up 150 to 200 boxes for copying. Mr. McGann objected to allowing us to copy documents that were outside the scope of the subpoena although they were produced without an objection or reservation prior to the inspection. He stated that his client would decide what they would give the copy company for copying. In an effort to get some of the documents right away, I agreed to take what Fort Bend Mechanical was willing to give for now and agree to disagree on the other documents. I sent a letter by fax summarizing our telephone conversation to Mr. McGann the same day. I called the receptionist at his office to confirm the fax number. On October 5 I received the copies that Fort Bend Mechanical provided to the copy service. It contained 769 pages of which 668 pages were documents that were not marked for copying. Most of the documents that we had marked for copying were not received including documents clearly responsive and within the scope of the subpoena. On October 7, I sent a detailed letter by fax to Mr. McGann describing each document that was marked for production and whether it was produced or not produced in the copies received on October 5. I asked for the documents which were responsive to the subpoena to be produced immediately. I asked for him to contact me about scheduling a telephone conference on either October 10 or 11 to discuss these matters and production of documents outside the subpoena. On October 12, I called Mr. McGann’s office because he had failed to contact me regarding the discovery dispute on October 10 or 11. I left a message for him to please call me. On October 13, Mr. McGann returned my call at approximately 10:30 a.m. I agreed that if he would immediately send me the documents responsive to the subpoena, I would not, at this time, pursue the documents which were produced for inspection but were outside the scope of the subpoena. Mr. McGann told me he would produce the documents that were responsive to the subpoena and thought that Fort Bend Mechanical had done that on October 5. I offered to send him a fax listing out each document that was missing, which box it was contained in, and to which request it was responsive. I called to reconfirm the fax number again. I sent the fax at 11:30 a.m. I asked for the documents to be emailed or faxed to me by 5:00 p.m. because there


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were not very many documents, less than one hundred pages, and they were easy to locate since I had numbered all of the boxes at the inspection. I sent a second fax at 12:30 p.m. clarifying one of the categories of documents that were missing and restating that I was expecting them by 5:00 p.m. or else I would have no choice but to file a Motion to Compel. At 4:00 p.m. on October 13, I called his office one more time to find out the status of the documents. I left a detailed message with the receptionist who said he would get in contact with Mr. McGann on the matter. As of mid-day on October 14 I had not received a return telephone call, document production or correspondence on the matter. Since learning Fort Bend Mechanical would not produce copies of the documents marked at the document inspection, Plaintiffs’ attorneys have had to undertake communications with Mr. McGann, conduct legal research concerning subpoenas, prepare and send correspondence attached hereto and prepare pleadings for the Court concerning this matter. The reasonable and necessary attorney’s fees incurred during these activities is $1,950. Eliminating duplication of work and in the exercise of billing judgment, these fees have been decreased to $1,375, for which recovery is requested. /s/ Kelly G. Prather

Kelly Greenwood Prather Certificate of Service I certify that a true copy of Plaintiff, The Gil Ramirez Group, LLC’s Motion for Civil Contempt and Motion to Compel Fort Bend Mechanical to Respond to Subpoena Duces Tecum was served as set forth below in accordance with the Federal Rules of Civil Procedure on this the 14th day of October, 2011. Mr. Arturo G. Michel Via Electronic Case Filing Mr. John M. Hopkins Thompson & Horton LLP 3200 Southwest Freeway, Suite 2000 Houston, Texas 77027 (713) 554-6760 – Telephone (713) 583-9928 - Facsimile Mr. Michael Stanley Via Electronic Case Filing Stanley, Frank & Rose 7026 Old Katy Road Suite 259


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Houston, Texas 77024 (713) 980-4381 - Telephone (713) 980-1179 - Facsimile Mr. Mike McGann Via CM RRR 7004 0550 0001 4172 1425 Attorney at Law 2211 Norfolk, Suite 610 Houston, Texas 77098 (713) 521-2743 - Telephone (281) 530-5480 - Facsimile

/s/ Kelly G. Prather Kelly Greenwood Prather
