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Control N mber: 46734
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Item Number: 131
Addendum StartPage: 0
SOAH DOCKET NO. 473-17-2691 2Pii I"" H 0 DOCKET NO. 46734
PETITION OF MURPHY OIL CORPORATION FOR DECLARATORY ORDER REGARDING SERVICE TO THE MURPHY OIL EAGLE FORD LEASEHOLD AREA
,r r
BEFORE THE STÂTE OFFICE ._
OF
ADMINISTRATIVE HEARINGS
PRIORITY POWER MANAGEMENT, LLC's, REPLY TO SOUTH TEXAS ELECTRIC COOPERATIVE'S AND RIO GRANDE ELECTRIC COOPERATIVE, INC.'S AUGUST 28 AND 29, 2017, RESPONSES,
REQUEST FOR HEARING, AND SUBMISSION OF SECOND AFFIDAVIT OF JOHN BICK
TO THE HONORABLE ADMINISTRATIVE LAW JUDGE:
COMES NOW Priority Power Management, LLC ("Priority"), a non-party in the
referenced docket, and, pursuant to 16 TAC §§ 22.78(a), 22.141(c), 22.144(d)-(h), and 22.145,
Tex. R. Civ. Proc. 176.6, 176.7, 193.3, 193.4, 199.6, Tex. R. Civ. Evid. 503 and 507, and other
authority and files its reply to South Texas Electric Cooperative's ("STEC') and Rio Grande
Electric Cooperative, Inc.'s ("RGEC") August 28 and 29, 2017, responses, request for hearing,
and its submission of the second affidavit of John Bick. In support, Priority would show the
following:
LIMITED APPEARANCE
As noted in earlier filings, Priority is not a party to Docket No. 46734. Priority is,
however, a party affected by and participating in the litigation in Docket No. 46734. Priority is
the party principally affected by and under order to respond to RGEC's July 27, 2017, subpoena
duces tecum. That subpoena compels Priority to appear to disclose various documents that
RGEC seeks in connection with its litigation of this docket. Priority has complied and has
provided its responses on August 10, 2017.
Priority again appears in this docket not to seek party status or to assert any substantive
claim that is the subject of this docket but instead to assert its reply to RGEC's and STEC's
August 28 and 29, 2017, filings, to request a hearing on its claims of privilege, and to submit the
attached Second Affidavit of John Bick.
1
REPLY TO STEC's RESPONSE
In this section, Priority responds to one issue in STEC's August 28, 2017, response, as
follows:
In its August 28, 2017, Response to Murphy's and Priority's motions to strike, STEC
claims that Murphy and Priority are not allied litigants.1 STEC is incorrect as its own argument
reflects. In its filing, STEC cites the Texas Supreme Court holding in In re XL Specialty Ins.
Co.2 to the effect that the allied litigant doctrine protects communications between a client or a
clients lawyer to another party's lawyer. STEC then claims that the communications are from
John Bick, not counsel. First, some of the communications are from counsel. But more
importantly, John Bick is the managing principal of Priority Power. Therefore, John Bick is the
client and/or the client's representative. Therefore, the communications between him, as the
client, Priority's counsel, and counsel for Murphy fall squarely within the common interest or
allied litigant privilege.
REPLY TO RGEC's RESPONSE
In this section, Priority responds to two issues in RGEC's response, as follows:
RGEC's claim Priority did not submit affidavit.
RGEC claims that Priority has not submitted an affidavit supporting its claims of trade
secret and attorney-client privilege. Priority has not submitted an affidavit to date. However, the
PUC's rules3 and the August 3, 2017, agreement did not establish a date for submission of an
affidavit. Moreover, the PUC's rules do not necessarily require an affidavit4 and it is common
practice for parties to respond to motions to compel privileged documents through pleadings, a
privilege log, and the submission of the documents for in camera review, without affidavit. 5
STEC Response at 9 (Aug. 28, 2017).
2 In re XL Specialty Ins. Co., 373 S.W.3d at 52 (Tex. 2012).
3 16 TAC §22.144(d)-(g).
4 Id.
See, e.g., Application of TXU SESCO Energy Services Company to Increase Price to Beat Fuel Factors and Reduce Price to Beat Base Rates, Docket No. 28585, Item 62, TXU SESCO's Response to OPUC Motion to Compel (Oct. 22, 2003) (no affidavit proving privileges; affidavit attached relates to ownership by others, confidentiality agreement, and non-reliance in testimony); Application of
2
First, regarding Priority's submission to date, the requirement for submission of an
affidavit, to the extent it applies, is tied to the deadline for responding to motions to compel. As
asserted in Priority's motion to strike, RGEC's motion to compel, filed on August 18, 2017, one
day after the agreed deadline of August 17, 2017, was not timely under the parties August 3,
2017, agreement, and, therefore, the timeline for submitting affidavits or other proof has never
started to run and no deadline for submitting affidavits has yet been established.
Next, RGEC is incorrect when it declares that the party asserting a privilege must
establish a prima facie case for the privilege by testimony or affidavit. While the burden may be
on Priority to establish that its documents are privileged, Texas law does not require an affidavit
or testimony. Supreme Court authority6 and Commission practice' make clear that while an
affidavit may be one way to establish privilege, the documents themselves are also evidence that
makes a prima facie case.' When the claim for protection is based on a specific privilege, the
CenterPoint Energy Houston Electric, LLC for Authority to Change Rates, Docket No. 38339 Item 319 Response to City of Houston's Motion to Compel (Sep. 1, 2010) (no affidavit proving privileges; affidavit attached relates only to proof of authenticity of records); Complaint of City of Houston Against Southwestern Bell Telephone LP, dba AT&T Texas, Docket No. 40115, AT&T's Response to City of Houston's 4th RFI and AT&T's Response to City of Houston's Motion to Compel Responses to 4th RFI (Sep. 12 and 13, 2013) (no affidavit proving privileges).
6 See Weisel Enterprises Inc. v Curry, 718 S.W.2d 56, 58 (Tex. 1986) (`Under certain circumstances, such as when relevancy or harassment is the basis for protection, affidavits or live testimony may be sufficient proof. When, however, the claim for protection is based on a specific privilege, such as attorney-client or attorney work product, the documents themselves may constitute the only evidence substantiating the claim of privilege."); In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) ("The prima facie standard requires only the 'minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.' Tex. Tech Univ. Health Sci. Ctr. v. Apodaca, 876 S.W.2d 402, 407 (Tex. App.-El Paso 1994, writ denied). The documents themselves may constitute sufficient evidence to make a prima facie showing of attorney-client or work product privilege. Weisel Enters., Inc. v. Curly, 718 S.W.2d 56, 58 (Tex. 1986)). .
7 See, e.g., Application of TXU SESCO Energy Services Company to Increase Price to Beat Fuel Factors and Reduce Price to Beat Base Rates, Docket No. 28585, Item 62, TXU SESCO's Response to OPUC Motion to Compel (Oct. 22, 2003) (no affidavit proving privileges; affidavit attached relates to ownership by others, confidentiality agreement, and non-reliance in testimony); Application of CenterPoint Energy Houston Electric, LLC for Authority to Change Rates, Docket No. 38339 Item 319 Response to City of Houston's Motion to Compel (Sep. 1, 2010) (no affidavit proving privileges; affidavit attached relates only to proof of records); Complaint of City of Houston Against Southwestern Bell Telephone LP, dba AT&T Texas, Docket No. 40115, AT&T's Response to City of Houston's 4th RFI and AT&T's Response to City of Houston's Motion to Compel Responses to 4th RFI (Sep. 12 and 13, 2013) (no affidavit proving privileges).
See Weisel, 718 S.W.2d at 58; DuPont, 136 S.W.3d at 223.
3
documents themselves may constitute the only evidence substantiating the claim of privilege.9
Priority's privilege log (attached) and in camera submission establishes a prima facie case that
the documents include trade secrets.
In addition, any requirement for the submission of testimony or affidavits is subject to the
timing established in Tex. R. Civ. Proc. 193.4(a).1° Tex. R. Civ. Proc. 193.4(a) provides that
affidavit and testimony are required when the matter has been submitted for a hearing." To date,
no party has requested a hearing or prehearing on this matter.' However, in light of RGEC's
claim, Priority hereby asserts its demand for a hearing on its claims of privilege.
Finally, however, because RGEC has now raised the issue and has asserted the need for
an affidavit, though Priority maintains an affidavit is not the only means to establish a prima
facie claim and potentially not required procedurally, Priority hereby submits the attached
second affidavit of John Bick. The affidavit, like Priority's privilege log (attached) and the
documents that Priority has submitted for in camera review, establish the required prima facie
case that Items 58 through 66 in Priority's listed below and in its privilege log are trade secret
privileged and that items 67 through 77 listed below and in the privilege log (attached) are
protected by the attorney-client privilege.
Priority documents submitted for in camera inspection: Privileged documents sought in RGEC Request No. 11
Ln
58
Item
2
Privilege
Trade Secret
Description
P RGEC SDT-11 2017-01-06 401PM — —
Date
1/6/2017
Format
59 3 Trade Secret
P RGEC SDT-11 2017-01-06 408PM — —
1/6/2017 Email
60 4 Trade Secret
P RGEC SDT-11 2017-01-06 418PM — —
1/6/2017 Email
61 5 Trade Secret
P RGEC SDT-11 2017-01-06 424PM — —
1/6/2017 Email
62 6 Trade
Secret P RGEC SDT-11 2017-01-06 444PM
— — 1/6/2017 Email
9 Id. 10 Tex. R. Civ. Proc. 193.4(a).
" Id.
12 Id.
4
63 7 Trade Secret
P RGEC SDT-11 2017-01-06 502PM — —
1/6/2017 Email
64 8 Trade Secret
P RGEC SDT-11 2017-02-08 923AM — —
mail 2/8/2017
E
65 9 Trade Secret
P RGEC SDT-11 2017-02-10 549PM — —
mail 2/10/2017
E
66 10 Trade Secret
P RGEC SDT-11 2017-03-23 602PM — —
mail 3/23/2017
E
67 11 Atty-Client P_RGEC SDT-11_2017-06-20 359PM 6/20/2017 Email
68 12 Atty-Client
P_RGEC SDT-11_2017-06-20 359PM_Attachment_Murphy Response to RGEC Motion for Subpoena_Active_35658124_1 6-20_Active_35669107_1
6/20/2017 Attachment Word doc
69 13 Atty-Client P_RGEC SDT-11_2017-06-20 459PM 6/20/2017 Email
70 14 Atty-Client P_RGEC SDT-11_2017-06-20 533PM 6/20/2017 Email
71 15 Atty-Client P_RGEC SDT-11_2017-06-30 828PM 6/30/2017 Email
72 16 Atty-Client P _ RGEC SDT-11 _2017-07-31 246PM 7/31/2017 Email
73 17
Atty-Client P _ RGEC SDT-11 _2017-08-01 1147AM
Email 8/01/2017
74 18 Atty-Client P _ RGEC SDT-11 _2017-08-02 314PM 8/2/2017 Email
75 19 Atty-Client P _ RGEC SDT-11 _2017-08-02 449PM 8/2/2017 Email
76 20 Atty-Client P _ RGEC SDT-11 _2017-08-03 1155AM 8/3/2017 Email
77 21 Atty-Client P _ RGEC SDT-11 _2017-08-04 1030AM 8/4/2017 Email
RGEC's claim regarding common interest privilege.
RGEC claims that the items listed are not protected by the common issue joint defense
privilege because Priority is not a party. RGEC's construction is overly strict and fails to
recognize that the scope of the term "party" as addressed in the privilege relates to separate
entities affected by common legal issues in the same litigation.
RGEC misapplies In re XL Specialty Ins. Co." While it is true that the Supreme Court
expressly rejected a "common interesr claim under Texas Rule of Evidence 503(b)(1)(c) and,
13 In re XL Specialty Ins. Co., 373 S.W.3d 46, 52 (Tex. 2012) ("The joint defense rule applies when multiple parties to a lawsuit, each represented by different attorneys, communicate among themselves for the purpose of forming a common defense strategy. In re JDN, 211 S.W.3d at 923. Unlike the common interest doctrine, the joint defense doctrine applies only in the context of litigation.").
5
further, rejected a claimed allied litigant privilege in that case, it did so because Cintas, the
employer in a workers compensation claim, was not a participant in the pending action.14 Here,
Priority, though not an intervening party, is nevertheless a participant in this pending action as a
result of RGEC's subpoena duces tecum. When RGEC submitted its request for a subpoena
duces tecum to compel production from Priority, a common interest in the legal claims and
issues in this litigated docket was created between Priority and Murphy. As the Supreme Court
made clear in XL Specialty, the point of the allied litigant doctrine is to allow parties, represented
by separate counsel, to work together in a common defense in the context of a pending action.15
Because Priority and Murphy share a common defense in this pending action regarding RGEC's
subpoena duces tecum, they are entitled to protection of the common interest, allied litigant
privilege.
RESPONSE TO STEC'S MOTION FOR RULING ON PENDING DISCOVERY REQUESTS
Priority includes this section in its response only to note that STEC's motion for rulings
on pending discovery requests relates to specific sets of RFIs and does not include within its
scope RGEC's subpoena duces tecum. While STEC may later claim that the timing of the
resolution of RGEC's subpoena may affect the preparation of STEC's and RGEC's testimony as
well, STEC has not included the subpoena in its request for a ruling.
CONCLUSION AND PRAYER
Priority submits its response to RGEC's response. Priority prays for the ALJ to accept
and consider its replies in this submission along with the attached second affidavit of John Bick
along with its review of the documents Priority tendered earlier for in camera review. Priority
prays for the ALJ to reject STEC's and RGEC's claims for the reasons stated. Priority prays for
the All to approve Priority claims of privilege after its in camera review of the documents that
Priority has listed in its privilege log and has submitted separately for in camera inspection.
Priority requests a hearing on its privilege claims. To the extent that such information is required
to be disclosed, Priority requests protective orders as described in its earlier filings. Priority
requests such other and further relief to which it may show itself to be entitled.
14 Id. at 50-55.
15 Id.
6
JAMES Z. BRAZELL State Bar No. 02930100
Respectfully submitted,
LAW OFFICE OF JAMES Z. BRAZELL James Z. Brazen 9442 Capital of Texas Hwy., Plaza I, Suite 500 Austin, Texas 78759 512-340-7387 Ofc. 512-879-3971 FAX 512-658-0830 Mbl. [email protected] www.brazelllaw.com
ATTORNEY FOR PRIORITY POWER MANAGEMENT, LLC
CERTIFICATE OF SERVICE
I hereby certify that on this the 31' day of August 2017 a true and correct copy of the foregoing document was served upon all parties of record by FAX, personal delivery, and/or First-Class United States mail, postage paid, or by e-mail delivery (as required in SOAH Order No. 7).
7
DOCKET NO. 46734
RIO GRANDE ELECTRIC COOPERATIVE, INC'S JULY 27, 2017, SUBPOENA DUCES TECUM
Ln.
#
58
Item
#
2
Req.
#
11
Privilege
Trade Secret
PRIORITY
Filename
P RGEC SDT-11 2017-01-06 — —
401PM
Date
1/6/2017
POWER MANAGEMENT,
Author(s)
John Bick
LLC'S PRIVILEGE
Recipients
Two representatives of a PPM client (identity subject to Trade Secret claim)
LOG
cc(s)
Pat Ennis, Tim Ennis of PPM
Description
PPM provided a copy of the Murphy Petition for Declaratory Order to a PPM client, advising of the proceeding and potential impact on build out of private electrical infrastructure.
Type
59 3 11 Trade Secret
P RGEC SDT-11 2017-01-06 — —
408PM 1/6/2017 John Bick
One representative of a PPM client (identity subject to Trade Secret claim)
Pat Ennis, PPM
PPM provided a copy of the Murphy Petition for Declaratory Order to another PPM client, advising of the proceeding and potential impact on build out of private electrical infrastructure.
60 4 11 Trade Secret
P RGEC SDT-11 2017-01-06 — —
418PM 1/6/2017 John Bick
One representative of a PPM client
(identity subject to Trade Secret claim)
Tyler Randolph, PPM
PPM provided a copy of the Murphy Petition for Declaratory Order to another PPM client, advising of the proceeding and
potential impact on build out of private electrical infrastructure.
61 5 11 Trade Secret
P RGEC SDT-11 2017-01-06 — —
424PM 1/6/2017 John Bick
Two representatives
of a PPM client (identity subject
to Trade Secret claim)
Pat Ennis, Kevin Yung of PPM; 1 PPM Customer Representative
(identity subject to Trade Secret claim)
PPM provided a copy of the Murphy Petition for Declaratory Order to another PPM client, advising of the proceeding and potential impact on build out of private electrical infrastructure.
62 6 11 Trade Secret
P_RGEC SDT-11_2017-01-06 444PM
1/6/2017 John Bick
Five
representatives of a PPM client
(identity subject to Trade Secret claim)
Pat Ennis, Kevin Yung, Roger Kienast, of PPM.
PPM provided a copy of the
Murphy Petition for Declaratory Order to another PPM client, advising of the proceeding and potential impact on build out of private electrical infrastructure.
8
Ln.
#
63
item
#
7
Req.
#
11
Privilege
Trade Secret
Filename
P RGEC SDT-11 2017-01-06 — —
502PM
Date
1/6/2017
Author(s)
John Bick
Recipients
Four representatives of a PPM client (identity subject
to Trade Secret claim)
cc(s)
Pat Ennis, Kevin Yung, Roger Kienast,
of PPM.
Description
PPM provided a copy of the Murphy Petition for Declaratory Order to another PPM client, advising of the proceeding and potential impact on build out of private electrical infrastructure.
Type
64 8 11 Trade Secret
P_RGEC SDT-11_2017-02-08
923AM 2/8/2017 John Bick
Three representatives of a PPM client
(identity subject to Trade Secret claim)
Pat Ennis, PPM Provided an update on the
Murphy case Email
65 9 11 Trade Secret
P RGEC SDT-11 2017-02-10 — —
549PM
2/10/201 7
John Bick
Three representatives of PPM client (identity subject
to Trade Secret claim)
Pat Ennis, PPM Provided an update on the Murphy case
66 10 11 Trade Secret
P RGEC SDT-11 2017-03-23 — —
602PM
3/23/201 7
John Bick
One representative of a PPM client
(identity subject to Trade Secret claim)
Pat Ennis, PPM Provided an update on the Murphy case
67 11 11 Atty- Client
P_RGEC SDT-11_2017-06-20 359PM
6/20/201
7
Andrea
Stover John Bick, James Brazen
Pat Ennis, Kane Heinen, James Barkley
Email attorney-client communication regarding RGEC subpoena request
68 12 11 Atty- Client
P_RGEC SDT-11_2017-06-20
359PM_Attachment_Murphy Response to RGEC Motion for
Subpoena_Active_35658124_ 1 6-20_Active_35669107_1
6/20/201
7
Andrea Stover
John Bick, James Brazell
Pat Ennis, Kane Heinen, James Barkley
Email attorney-client communication regarding RGEC
subpoena request
Attachmen t Word doc
69 13 11 Atty- Client
P_RGEC SDT-11_2017-06-20 459PM
6/20/201 7
Andrea Stover
John Bick, James Brazell
Pat Ennis, Kane Heinen, James Barkley
Email attorney-client communication regarding RGEC subpoena request
9
Ln.
#
70
item
#
14
Req.
#
11
Privilege
Atty- Client
Filename
P_RGEC SDT-11_2017-06-20
533PM
Date
6/20/201 7
Author(s)
James BrazeII
Recipients
Andrea Stover
cc(s)
John Bick, Pat Ennis, Kane
Heinen, James
Barkley
Description
Email attorney-client
communication regarding RGEC
subpoena request
Type
71 15 11 Atty- Client P_RGEC SDT-11_2017-06-30
828PM 6/30/201
7 James Barkley John Bick
Andrea Stover,
Joyce Banks, Kane Heinen,
James BrazeII
Email attorney-client
communication regarding RGEC
subpoena request
72 16 11 Atty- Client
P RGEC SDT-11 2017-07-31 — —
246PM
7/31/201 7
James Brazell
John Bick, Pat
Ennis James Brazell
Email attorney-client
communication regarding RGEC
subpoena request
73 17 11 Atty- Client
P_RGEC SDT-11_2017-08-01 1147AM
8/1/2017 James Braze!!
John Bick, Pat
Ennis James Brazell
Email attorney-client
communication regarding RGEC
subpoena request
74 18 11 Atty- Client
P RGEC SDT-11 2017-08-02 — —
314PM 8/2/2017 James Braze!!
Jim Barkley,
Andrea Stover
John Bick,
James Brazell
Email attorney-client
communication regarding RGEC
subpoena request
75 19 11 Atty- Client
P RGEC SDT-11 2017-08-02 — —
449PM 8/2/2017 John Bick James Brazell
Andrea Stover,
Jim Barkley
Email attorney-client communication regarding RGEC
subpoena request
76 20 11 Atty- Client
P RGEC SDT-11 2017-08-03 — —
1155AM 8/3/2017
James
Barkley James Brazell
Andrea Stover,
Joyce Banks,
John Bick
Email attorney-client
communication regarding RGEC
subpoena request
77 21 11 Atty-
Client P RGEC SDT-11 2017-08-04
— — 1030AM 8/4/2017 John Bick
James Brazell, Jim Barkley
Andrea Stover,
Joyce Banks
Email attorney-client
communication regarding RGEC
subpoena request
10
SOAH DOCKET NO. 473-17-2691 DOCKET NO. 46734
PETITION OF MURPHY OIL CORPORATION FOR DECLARATORY ORDER REGARDING SERVICE TO THE MURPHY OIL EAGLE FORD LEASEHOLD AREA
BEFORE THE STATE OFFICE
OF
ADMINISTRATIVE HEARINGS
SECOND AFFIDAVIT OF JOHN J. BICK
STATE OF TEXAS
COUNTY OF TARRANT §
1. Before me, the undersigned authority, personally appeared John J. Bick, who being
duly sworn states:
2. My name is John J. Bick. I am over the age of eighteen (18) years and I am fully
competent to testify to the matter set forth in this Affidavit, which are within my personal
knowledge, and are true and correct to the best of my understanding.
3. I have a Bachelor of Science degree in Construction Engineering Technology from
Texas Tech University. I have also completed Executive Management programs at Southern
Methodist University Cox School of Business and Wharton School of Business.
4. I am the Managing Principal of Priority Power Management ("Priority Power"). In
my position at Priority Power, I advise clients regarding energy management, load aggregation,
risk management, demand-side management, capital and asset management, and evaluation of
strategic outsourcing services. I have been with Priority Power since 2003. Prior to that, I was
employed by the predecessor company of Oncor Electric Delivery Company in various positions
from 1989 to 2000, including Customer Service Representative, Account Manager, Key Account
Executive, and Manager of Strategic Accounts.
5. In or around June 2016, Murphy Oil Corporation (`Murphy Oil") contacted Priority
Power seeking advice regarding the best way to provide electric service to two of Murphy Oil's
fields in the Catarina area of the Eagle Ford Shale. In this proceeding, these Murphy Oil fields are
referred to as the North and South Fields.
1
6. On or around January 6, 2017, February 8 and 10, 2017, and March 3, 2017, I
advised six (6) specific clients of Priority Power of the pendency of Docket No. 46734 and the
nature of Murphy's request. In each of those communications, I addressed specific individuals
employed by the Priority clients I sent the information to. I also sent certain client specific data
along with the submission to illustrate how Docket No. 46734 might be of interest to those clients.
7. The documents listed as Priority Items 58 through 66 and/or the names of the
Priority clients, the names and identities of the client contacts, and the attached client-specific data
meet the six factors that determine that information is a trade secret:
8. The information is not known outside of the business. The information Priority
included in its communications with its clients was client-specific information that Priority and
the clients maintain as highly valuable secret information. It is information that is knows by
Priority's clients because it relates to their specialized trade or business. It is information that is
known by Priority because Priority has been given access to it to allow Priority to provide services
to its clients. Otherwise, the information is not known outside of Priority or outside the business
of Priority s clients.
9. The information is known by Priority employees that are involved with the
particular clients, but is otherwise not known by employees and others involved in the business.
Priority's personnel that are assigned to the Priority clients involved have access to the data. But
other Priority employees and third parties do not have access to the data.
10. Priority and Priority's clients have taken significant of measures taken to guard the
secrecy of the information. Priority has maintained the information in strict confidence. Priority
has security measures and practices in place to protect the information. Priority's clients have also
maintained the information in strict confidence.
11. The information has significant value to the business and would have, were it
disclosed, significant value to Priority's competitors and to Priority's client's competitors.
12. Priority has expended significant effort and funds money expended in developing
the information. Priority has acquired the information over a period of many years. Priority has
acquired and compiled the information from various public and private data sources. Priority has
added its own analysis and review of these data sources;
13. The information would not easily be acquired or duplicated by others or
competitors and would be difficult for others and competitors to be properly acquired or duplicated
2
by others. As stated in the preceding bullet, Priority has developed this data from various sources
at great expense. Priority has developed the information by use of Priority's relationships with its
clients and Priority's special skills, knowledge, and experience. As shown by the documents
submitted for in camera review, the information is information that would not be easily acquired
or duplicated by others or by competitors of Priority or Priority's clients.
14. While Priority understands that it is not required to establish that all six factors
support finding the information is a trade secret and that trade secret data does not always fit neatly
into each factor and other factors may be relevant based on the circumstances of a particular case,
nevertheless, as stated above, and as shown in by the documents that Priority submitted for in
camera review, Priority's information falls within all six categories.
15. Because the information is not known outside Priority's and its clients business, is
of great value in Priority's and its clients' businesses, and was developed at great expense, Priority
and its clients would be harmed by the disclosure of the information to competitors and potential
competitors.
16. The information was prepared for others as part of my engagement for those clients
and contains information that is the property of those clients and is subject to confidentiality
provisions that prevent my releasing it.
17. Documents listed as Items 67 through 77 are protected under the attorney-client,
allied litigant, common issue, and/or common defense privilege:
18. Listed documents 67 through 77 were prepared in anticipation of a potential
opposition to RGEC's request for a subpoena duces tecum. They were prepared either by myself,
John Bick, Managing Principal of Priority, and communicated to Priority's outside counsel or they
were prepared by Priority's outside counsel and communicated to Priority. As such, the documents
qualify for the protection of the attorney-client privilege.
19. The listed documents are confidential communications between Priority,
representatives of Priority, and Priority's attorney(s) made for the purpose of facilitating the
rendition of professional legal services.
20. The documents were prepared by a representative of Priority or by Priority's
attorney(s), and were intended to aid the attorney in developing legal advice on the availability
and likelihood of success of Priority's objection to Rio Grande Electric Cooperative's motion for
3
Johnj.
subpoena duces tecum. As such, the listed documents are protected from disclosure under the
lawyer-client privilege. Tex. R. Civ. Evid. 503.
21. The documents were also addressed to counsel for Murphy because, once RGEC
submitted its request for a subpoena duces tecum, Priority and Murphy shared a common interest
and became allied litigant with respect to RGEC's subpoena and shared a common interest or
defense in objecting to and later responding to the requested subpoena.
22. I declare under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct. g.
Executed thisy day of August, 2017.
SUBSCRIBED AND SWORN to before me on \ day of August, 2017.
VICKIE L BROOKS Notary ID # 7395357
My Commission Expires March 14, 2021
Mit 19__-)ocK Notary Public, State of Texas
4