NO.

D-1-GV-12-001731 CITY OF EL PASO, TEXAS Plaintiff

Filed 13 September 4 P4:35 Amalia Rodriguez-Mendoza District Clerk Travis District D-1-GV-12-001731

v.
GREG ABBOTT, ATTORNEY GENERAL 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 ORDER TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES, City of El 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 a protective order relating to the same, and for such would respectfully show the following:
I.

FACTUAL BACKGROUND This lawsuit 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 emails which Plaintiff contends are outside the scope of the Act. The Texas Public Information Act 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 of official business (1) by a governmental body; or (2) for a governmental body and the governmental body own the information or has a right to access to it." Tex. Gov 't Code

552.002(a); see also City of Garland v. Dallas Morning News, 22 S.W.3d 351 , 356 (Tex. 2000). However, the Texas Attorney General has taken the position that this includes infonnation maintained by an individual public official or employee of the governmental body. Plaintiff brought suit against the Texas Attorney General seeking a declaration from this Court that the
Plaintiff's Motion to Quash City ofEl Paso v. Greg Abbott, Attorney General of Texas Page 1 of 10

personal papers, e-mails and effects of local governmental officials and employees are not subject to "open records searches" and do not meet the statutory definition of public information and therefore, are not subj ect 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 dated September 5, 2012 and October 5, 2012." See Petition in Intervention by Stephanie Townsend Allala and Motion to Show Authority,
~8.

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"), Courtney Niland (See Exhibit "B") and Joyce A. Wilson (See Exhibit "C"). The prospective Deponents are not patties to this lawsuit, nor are they governmental entities. Plaintiff objects to the time and place of the proposed depositions. Because this motion is filed within three days of the date of service (not counting the intervening Labor Day holiday), the depositions are stayed until this motion may be heard. See Tex. R. Civ. P. 199.4. Plaintiff and the proposed deponents have not agreed to the date, time or place of these proposed depositions, and Plaintiff has clearly conununicated this to Intervenor' s counsel prior to the issuance of the notices. See Exhibit "D." Plaintiff asks the Comt to order that these depositions be quashed because the prospective deponents are not parties to the lawsuit nor are they governmental 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 witnesses have not agreed to appear at the Requestor 's law office, and the parties and the witnesses have not agreed to the time scheduled for the depositions.

P laintiffs Motion to Quash City ofEl Paso v. Greg Abbott, Attomey General of Texas Page 2 of 10

The Court should quash the deposition notices because the witnesses are not parties to the lawsuit nor are they govemmental bodies to which the Act applies. The Public Information Act does not apply to an officer or employee of a govemmental unit. See Keever v. Finlan, 988 S.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.); see

also City of Dallas v. Dallas Morning News, 281 S.W.3d 708, 714 (Tex. App.- Dallas 2009, no
writ) (" A govenunental body does not include Mayor Miller or any City employee."). Because the 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 infonnation into public infonnation. See Keever at 305 (Plaintiff was not pem1itted to seek a mandamus against the school board trustee, and could not compel him to make infonnation available under the Texas Open Records Act.) "The requested e-mails are not 'public infonnation" unless they are 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 the infonnation or has a right of access to it." City ofDallas v. Dallas Morning News, 281 S.W.3d at 714 (citing Tex. Gov 't. Code Ann. 552.002(a). In this case, Intervenor seeks e-mails in the possession and control of non-parties which were not collected, assembled, or obtained by or for a governmental body under a law or ordinance or in connection with transacting official business, and therefore are not public infonnation. 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 run around 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 of infonnation that is not "public information" as defined by the Act.

Plaintiff' s Motion to Quash City ofEl Paso v. Greg Abbott, Attorney General of Texas Page 3 of 10

Additionally, the potential witnesses have a reasonable expectation of privacy in the emails sought by Intervenor. See United States v. Warshak, 631 F.3d 266, 288 (6 1h Cir. 2011). Plaintiff has no access to those e-mails that are not stored on Plaintiff's servers absent a wan-ant based 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, will only entitle Intervenor to public infonnation. The infmmation sought fro m the potential

witnesses is not public infom1ation and the Court must quash the deposition notices and issue a protective order to prevent the disclosure of the infonnation that is not "public infonnation" as defined by the Act as well as protect the witnesses from being compelled to testify about their private e-mails and papers. The Court should quash the deposition notices because the witnesses were not properly served. According to Rule 199.2(a) ofthe Texas Rules of Civil Procedure: "A notice of intent to take an oral deposition must be served on the witness and all patiies a reasonable time before the deposition is taken." (emphasis added). None of the proposed witnesses are parties. Two of the 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 required under Rule 199.2(a), the Court must quash the deposition notices. The Court should quash the deposition notices because the witnesses have not agreed to be deposed at the Requestor's law office. Plaintiff moves to quash and moves for a protectice order based on the location of the proposed depositions. Because this Motion is filed 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 witnesses should not be forced to attend a deposition in the Intervenor's office, but would suggest that any such deposition be conducted at a neutral location, or at City Hall.

Plaintiffs Motion to Quash City ofEl Paso v. Greg Abbott, Attorney General ofTexas Page 4 of 10

The Court should quash the deposition notices because the witnesses have not agreed to the date and time scheduled for their depositions. Plaintiff moves to quash and moves for a protectice order based on the time and date of the proposed depositions. Because this Motion is filed 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 witnesses should agree on a time and date for any proposed deposi tions and Plaintiff has not agreed to the date and time on the notices. Moreover, Plaintiff does not control two 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 only after consulting the schedule of the witness and all counsel of record.

III. THE REQUEST FOR PRODUCTION

Plaintiff further objects to the request for production of documents that are attached to the notices. Essentially, the Intervenor attempts to use the discovery rules to circumvent the Public Information Act procedures and obtain documents that are not "public infonnation" under the Act. Plaintiff objects to the extent that the witnesses are not parties to this litigation and enjoy a reasonable 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-mails that are not

stored on Plaintiff's servers absent a warrant based on probable cause. See id.

Likewise the

Court 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 asks the Comt to enter a protective order to prohibit the disclosure of the private e-mails of the proposed witnesses.

Plaintiffs Motion to Quash City ofEl Paso v. Greg Abbott, Attorney General of Texas Page 5 of 10

Plaintiff further objects that the requests are overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant evidence. The documents the

requested 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 of the potential witnesses and asked them to voluntarily produce to Plaintiff any responsive documents so that Plaintiff may produce those voluntarily to Intervenor and the public. See Exhibit "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 the proposed disclosures of all documents in Plaintiff's possession. This would incidentally also grant to Intervenor the relief to which she is entitled. Plaintiff respectfully asks this Court to issue a protective order to prohibit the disclosure of the private e-mails and papers of the proposed witnesses and all testimony relating to those e-mails and papers.
IV. MOTION MADE IN GOOD FAITH

This 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 Court issue 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 Quash City ofEI Paso v. Greg Abbott, Attomey General of Texas Page 6 of 10

SIGNED this 4111 day of September, 2013. Respectfully submitted,

DENTON, NAVARRO, ROCHA & BERNAL Professional Corporation 2500 W. William Cannon Drive, Suite 609 Austin, Texas 78745 Telephone: (512) 279-6431 Facsimile: (512) 279-6438 george.hyde@rampage-aus.com erin.higginbotham@rampage-aus.com scott. tschirhart@rampage-aus. com

BY: State Bar No. 45006157 ERIN A. HIGGINBOTHAM State Bar No. 24065418 SCOTT M. TSCHIRHART State Bar No. 24013655

ATTORNEYS FOR PLAINTIFF

Plaintiffs Motion to Quash City ofEl Paso v. Greg Abbott, Attorney General ofTexas Page 7 of lO

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Plaintiff's Motion to Quash and Motion for Protective Order has been served in accordance with Texas Rules of Civil Procedure on this the 4th day of September, 2013, as indicated below. Kimberly L. Fuchs Chief, Open Records Litigation Administrative Law Division P.O. Box 12548, Capitol Station Austin, Texas 78711 Bill Aleshire Riggs & Aleshire, P.C. 700 Lavaca, Suite 920 Austin, Texas 78701
CMRRR #7011 2970 0004 0033 6975

..

CMRRR #7011 2970 0004 0033 6982

GEORGE E. HYDE ERIN A. HIGGINBOTHAM SCOTT M. TSCHIRHART

Plaintiffs Motion to Quash City ofEl Paso v. Greg Abbott, Attorney General of Texas Page 8 of 10

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

v.
GREG ABBOTT, ATTORNEY GENERAL OF TEXAS, Defendant

IN THE DISTRICT COURT OF

261 st JUDICIAL DISTRICT

TRAVIS COUNTY, TEXAS

ORDER

On September _ _, 2013, came on to be considered PLAINTIFF'S MOTION TO QUASH NOTICE OF INTENTION TO TAKE DEPOSITIONS AND MOTION FOR PROTECTIVE ORDER, and, it appears to the Court that good cause exists for such Motion and it should be GRANTED.
IT IS ORDERED that the above-described Notices served upon the City of El Paso are

hereby 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 in their possession and that they shall not be compelled to answer any questions, in deposition or otherwise, relating in any way to their personally maintained e-mails and other personal papers.
SIGNED on _ _ _ ___, 2013.

JUDGE PRESIDING

Plaintiffs Motion to Quash City ofEI Paso v. Greg Abbott, Attorney General of Texas Page 9 of 10

PREPARED BY: DENTON, NAVARRO, ROCHA & BERNAL Professional Corporation 2500 W. William Cannon Drive, Suite 609 Austin, Texas 78745 Telephone: (512) 279-6431 Facsimile: (512) 279-6438 george.hyde@rampage-aus.com erin.higginbotham@rampage-aus.com scott. tschirhart@rampage-aus.com

State Bar No. 45006157 ERIN A. HIGGINBOTHAM State Bar No. 24065418 SCOTT M. TSCHIRHART State Bar No. 24013655 ATTORNEYS FOR PLAINTIFF

Plaintiff's Motion to Quash City of El Paso v. Greg Abbott, Attorney General of Texas Page 10 of 10

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

v.
GREG ABBOTT, ATTORNEY GENERAL OF TEXAS, Defendant

IN THE DISTRICT COURT OF

26lsT JUDICIAL DISTRICT

TRAVIS COUNTY, TEXAS

INTERVENOR STEPHANIE ALLALA'S NOTICE OF INTENTION TO 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, Suite 609, 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 SUSIE BYRD on October 2, 2013, at 9:00 a.m. at the law offices of Stephanie Townsend Allala and Associates, 300 East Main Street, Suite 620, El Paso, Texas 7990 I. 2. 3. The deposition will continue from day to day until completed. The deposition will be recorded stenographically and on videotape. The

stenographic recording will be conducted by Brannon Rasberry and Associates, 300 E. Main Street, El Paso, T~xas, 79901. 4. Under Rule 199.2(b)(5), Susie Byrd is requested to produce at the deposition the

following documents within her custody or control that have not been previously provided to the City 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 public business of the City of El Paso from You [Susie Byrd] to (or copied to, or blind copied to) any council representative(s) or the Mayor or the City Manager from January 1, 2012 to October 5, 2012. This request includes all such written

NOTICE OF ORAL DEPOSITION

EXHIBIT

PAGE10F3

A:

commtmication regardless communication.

of whether other persons also

were

sent the

2. From January 1, 2012 to October 5, 2012, E-mails, letters, memoranda, notes, or other forms of written communication regarding public business of the City of El Paso from You [Susie Byrd] to (or copied to, or blind-copied to), or from the following 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 of whether other persons also were sent the communication.

TexasBarNo. 24031810 RJGGS & ALESHIRE, P.C. 700 Lavaca, Suite 920 Austin, Texas 78701 Telephone: (512) 457-9806 (5 12) 457-9066 Facsimile: Aleshire@R-ALaw.com
ATTORNEYFORINTERVENOR

NOTICE OF ORAL DEPOSillON

PAGE20F3

CERTIFICATE OF SERVICE
I hereby certify that a tlUe and correct copy of the foregoing Notice of Oral Deposition has been served, on August 29,2013, on the following:

BY HAND DELIVERY GEORGE E. HYDE State Bar No. 45006157 ERIN HIGGINBOTHAM State Bar No. 24065418 Denton, Navarro, Rocha & Bernal 2500 W. William Cannon Dr., Suite 609 Austin, Texas 78745 Telephone: (512) 279-6431 Facsimile: (512) 279-6438 george.hyde@rampage-aus.com erin .higginbotham@rampage-aus. com
ATTORNEYS FOR PLAINTIFF

BY FACSIMILE: Ms. Kimberly L. Fuchs Chief, Open Records Litigation Administrative Law Division P.O. Box 12549, Capitol Station Austin, Texas 78711-2548 Telephone: (5 12) 475-4195 Fax: (512) 320-0167 kimberly. fuchs@texasattorneygeneral.gov
ATTORNEYS FOR DEFENDANT

ATTORNEY POR INTERVENOR

NOTICE OF ORAL DEPOSffiON

PAGE30F3

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

v.
GREG ABBOTT, ATTORNEY GENERAL OF TEXAS, Defendant

IN THE DISTRICT COURT OF

261sT JUDICIAL DISTRICT

TRAVIS COUNTY, TEXAS

INTERVENOR STEPHANIE ALLALA'S NOTICE OF INTENTION TO 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, Suite 609, 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 CORTNEY NILAND on October 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. 2. 3. The deposition will continue from day to day until completed. The deposition will be recorded stenographically and on videotape. The

stenographic recording will be conducted by Brannon Rasberry and Associates, 300 E. Main Street, El Paso, Texas, 79901. 4. Under Rule 199.2(b)(5), Cortney Niland is requested to produce at the deposition

the following documents within her custody or control that have not been previously provided to the 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 public business of the City of El Paso from You [Cortney Niland] to (or copied to, or blind copied to) any council representative(s) or the Mayor or the City Manager from January 1, 2012 to October 5, 2012. This request includes all such written

NOTICE OF ORAL DEPOSITION

EXHIBIT

PAGE10F3

commwucation communication.

regardless

of whether other

persons

also

were

sent

the

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 El Paso fiom You [Cortney Niland] to (or copied to, or blind-copied to), or from the following 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 thereof; g. Hunt Holdings Sports Group LLC or any representative or attorney thereof; This request includes all such written communication regardless of whether other persons also were sent the comnnmication.

ill Aleshire TexasBarNo. 24031810 RlGGS & ALESHIRE, P.C. 700 Lavaca, Suite 920 Austin, Texas 78701 Telephone: (512) 457-9806 Facsimile: (512) 457-9066 Aleshire@R-ALaw.com
ATTORNEY FOR INTERVENOR

NOTICE OF ORAL DEPOSfflON

PAGE2 OF3

CERTIFICATE OF SERVICE
I 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 DELIVERY GEORGE E. HYDE

State Bar No. 45006157

ERIN HIGGINBOTHAM
State Bar No. 24065418 Denton, Navarro, Rocha & Bernal 2500 W. W illiam Cannon Dr., Suite 609 Austin, Texas 78745 Telephone: (512) 279-6431 Facsimile: (512) 279-6438 george.hyde@rampage-aus.com erin.higginbotham@rampage-aus.com
ATTORNEYS FOR PLAINTIFF

BY FACSIMILE:
Ms. Kim berly L. Fuchs Chief, Open Records Litigation Administrative Law Division P.O. Box 12549, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 475-4195 Fax: (512) 320-0167 kimberly.fuchs@texasattomeygeneral.gov
ATTORNEYS FOR DEFENDANT

ATTORNEYFORlNTERVENOR

NOTICE OF ORAL DEPOSITION

PAGE30F3

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

v.
GREG ABBOTT, ATTORNEY GENERAL OF TEXAS, Defendant

IN THE DISTRICT COURT OF

261ST JUDICIAL DISTRICT

TRAVIS COUNTY, TEXAS

INTERVENOR STEPHANIE ALLALA'S NOTICE OF INTENTION TO 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, Suite 609, 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 on October 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. 2. 3. The deposition will continue from day to day until completed. The deposition will be recorded stenographically and on videotape. The

stenographic recording will be conducted by Brannon Rasberry and Associates, 300 E. Main Street, El Paso, Texas, 79901 . 4. Under Rule 199 .2(b)(5), Joyce Wilson is requested to produce at the deposition

the following documents within her custody or control that have not been previously provided to the 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 public business of the City of El Paso from You [Joyce Wilson] to (or copied to, or blind copied to) any council representative(s) or the Mayor or the City Manager from January 1, 2012 to October 5, 2012. This request includes all such written

NOTICE OF ORAL DEPOSIDON

EXHIBIT

PAGE lOF 3

communication regardless communication.

of whether other persons

also

were

sent the

2. From January 1, 2012 to October 5, 2012, E-mails, letters, memoranda, notes, or other forms of written communication regarding public business of the City of El Paso from You [Joyce Wilson] to (or copied to, or blind-copied to), or from the following persons to You [Joyce Wilson] (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 wtitten communication regardless of whether other persons also were sent the communication.

111 Aleshire TexasBarNo. 24031810 RIGGS & ALESHIRE, P.C. 700 Lavaca, Suite 920 Austin, Texas 78701 Telephone: (512) 457-9806 Facsimile: (512) 457-9066 Aleshire@R-ALaw.com
ATTORNEYFORlNTERVENOR

NOTICE OF ORAL DEPOSITION

PAGE20F3

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Notice of Oral Deposition has been served, on August 29,2013, on the following:

BY HAND DELIVERY GEORGE E. HYDE State Bar No. 45006157 ERIN HIGGINBOTHAM State Bar No. 24065418 Denton, Navarro, Rocha & Bernal 2500 W. William Cannon Dr., Suite 609 Austin, Texas 78745 Telephone: (5 12) 279-643 1 Facsimile: (5 12) 279-6438 george.hyde@rampage-aus.com erin.higginbotham@rampage-aus.com
ATTORNEYS FOR PLAINTIFF

BY FACSIMILE: Ms. Kimberly L. Fuchs Chief, Open Records Litigation Administrative Law Division P.O. Box 12549, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 475-4195 Fax: (512) 320-0167 kimberlv .fuchs@texasattorneygeneral. gov
ATTORNEYS FOR DEFENDANT

dtt~
Bill Alesliire
ATTORNEY FOR INTERVENOR

NOTICE OF ORAL DEPOSITION

PAGE3 OF 3

Scott Tschirhart
From:

Sent:
To:

Cc: Subject:

Scott Tschirhart Wednesday, August 28, 2013 3:12 PM Bill Aleshire George Hyde; 'Kimberly Fuchs'; Jacque Meissner; Erin Higginbotham; Lauren Crawford RE: 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 week and it is going to take some serious prep time. I personally do not think we can realistically appear by Skype at these depositions and I have not heard back about client availability yet. Best regards,

Scott M. Tschirhart Denton, Navarro, Rocha & Bernal A Professional Corporation 2500 W. William Cannon D1ive, Suite 609 Austin, Texas 78745 Phone: (512) 279-6431 Pax: (512) 279-6438 Email: Scott.Tschirhart@rampage-aus.com
Rampagelaw.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 not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient and have received this information in error, you are hereby notified that any dissemination, distribution or copying of this communication is prohibited. If you have received this communication in error, please notify us immediately by replying to the message and deleting if from your computer. Thank you.

From: Bill Aleshire [mailto:qleshire@r-alaw.com]

Sent: Wednesday, August 28, 2013 2:42 PM

To: Scott Tschirhart Cc: George Hyde; 'Kimberly Fuchs'; Jacque Meissner; Erin Higginbotham; Lauren Crawford Subject: RE: Allala v El Paso

EXHIBIT

Scott, We need to get these depositions scheduled and the Notices issued: 1

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. 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

Scott Tschirhart
From:

Sent:
To: Cc:

Subject:

Scott Tschirhart Tuesday, August 27, 2013 3:41 PM Bill Aleshire George Hyde; Kimberly Fuchs; Jacque Meissner; Erin Higginbotham; Lauren Crawford Re: 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 your duces tecum . I'm not sure that you are going to be asking for anything that we are not giving the public voluntarily. Please forward a copy of your proposed duces tecum by e-mail. Best regard s, Scott M. Tschirhart Sent from my iPad On Aug 27, 2013, at 3:28 PM, "Bill Aleshire" <aleshire@r-alaw.com> wrote:

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

Riggs Aleshire & Ray PC 700 Lavaca, Suite 920 Austin, Texas 78701 512 457-9838 direct 512 750-5854 cell 512 457-9066 fax Aleshire@R-Alaw.com

From: George Hyde [mailto:george.hyde@rampage-aus.com] Sent: Monday, August 26, 2013 2:39PM To: Bill Aleshire Cc: 'Kimberly Fuchs'; Jacque Meissner; Scott Tschirhart; Erin Higginbotham; Lauren Crawford; Scott Tschirhart Subject: RE: Allala v El Paso

Dear Bill: Scott Tschirhart in my office will be in touch with you on the discovery issues if necessary.
EXHIBIT

As you may know, the City Council recently authorized us to release the previously accessible but undisclosed documents in your case and we will be requesting any inaccessible documents from the current and former council members/city manager that we have not had access to that may relate to your request. The City has further authorized us to provide to you anything we obtain. Once we have all the materials we intend to produce them without regard to this lawsuit to you and any other requestor. We hope that this can be done quickly but think with the holiday, it would likely be completed in a couple weeks. Perhaps you would like to wait and see what we are able to provide before going through the cost and expense of attempting discovery that will likely serve no purpose. Otherwise, we can look at October dates for the depositions, assuming there is nothing objectionable in your discovery requests. I would suggest that after you are able to review what we will be releasing, you can decide at that time if you think the discovery is still needed. Thank you for your courtesies. Very truly yours,

~~~E. If~
Managing Partner- Austin Office Email: george.hyde@rampage-aus.com Cell: 210-325-4330 Office: 512-279-6431
Denton, Navarro, Rocha & Bernal A Professional Corporation 2500 W. William Cannon, Suite 609 Austin, Texas 78745 Voice: 512-279-6431 Facsimile: 512-279-6438 rampagelaw.com

From: Bill Aleshire [mailto:aleshire@ r-a law.com] Sent: Thursday, August 22, 2013 5:31 PM To: George Hyde Cc: 'Kimberly Fuchs'; Jacque Meissner; Scott Tsch irhart; Erin Higginbotham; Lauren Cra wford Subject: RE: Allala vEl Paso

George, I am also available in September for these depositions, if you will agree to sh01ien the response time on the RFP (duces tecum) from the 30-day rule.

Riggs Aleshire & Ray PC 700 Lavaca, Suite 920 Austin, Texas 78701 512 457-9838 direct 512 750-5854 cell 512 457-9066 fax Aleshire@R-ALaw.com

From: George Hyde [mailto:george.hyde@rampage-aus.com] Sent: Thursday, August 22, 2013 5:18 PM To: Bill Aleshire Cc: 'Kimberly Fuchs'; Jacque Meissner; Scott Tschirhart; Erin Higginbotham; Lauren Crawford Subject: RE: Allala vEl Paso

Dear Bill: I am traveling and out of the office until Monday. I will try to respond to your emails over the weekend or on Monday. Very truly yours,

~u;~ E. IfF
Managing Partner- Austin Office Email: george.hyde@rampage-aus.com Cell: 210-325-4330 Office: 512-279-6431
Denton, Navarro, Rocha & Bernal A Professional Corporation 2500 W. William Cannon, Suite 609 Austin,Texas78745 Voice: 512-279-6431 Facsimile: 512-279-6438 rampagelaw.com

From: Bill Aleshire [mailto :a leshire @r-alaw. com ] Sent: Thursday, August 22, 2013 5:15 PM To: George Hyde Cc: 'Kimberly Fuchs' Subject: RE: Allala v El Paso

By the way, George, if the City Council wanted to settle even the po1tion of our lawsuit related to redacting email addresses of"members of the public," the individuals could voluntarily give their permission for the email addresses to be divulged pursuant to TPIA section 552.137(b). We don't mind
3

litigated that issue, but it becomes moot if all of the Council Reps consent to the disclosure and the City provides the unredacted records. Sec. 552.137. CONFIDENTIALITY OF CERTAIN E-MAIL ADDRESSES. (a) Except as otherwise provided by this section, an e-mail address of a member of the public that is provided for the purpose of conmmnicating electronically with a govenunental body is confidential and not subject to disclosme under this chapter. (b) Confidential infonnation described by tllis section that relates to a member of the public may be disclosed 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 the govenunental body or by the contractor's agent; (2) provided to a govermn ental body by a vendor who seeks to contract with the govemmental body or by the vendor's agent; (3) contained in a response to a request for bids or proposals, contained in a response to similar invitations soliciting offers or infonnation relating to a potential contract, or provided to a govemmental body 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 document made available to the public; or (5) provided to a govermnental body for the purpose of providing public conunent on or receiving notices related to an application for a license as defined by Section 2001.003(2) of tills code, or receiving orders or decisions from a govenunental body. (d) Subsection (a) does not prevent a govenm1ental body from disclosing an e-mail address for any reason to another govermnental body or to a federal agency.

Riggs Aleshire & Ray PC 700 Lavaca, Suite 920 Austin, Texas 78701 512 457-9838 direct 512 750-5854 cell 512 457-9066 fax Aleshire@R-Alaw.com

From: Bill Aleshire [mailto:aleshire@r-a law.com] Sent: Wednesday, August 14, 2013 8:05AM To: 'George Hyde' Cc: 'Kimberly Fuchs' Subject: RE: Allala vEl Paso

George, I haven't heard from you since our meeting to discuss settlement. If the case is not going to settle, we need to get a hearing set in September for a Motion to Compel.

Riggs Aleshire & Ray PC 700 Lavaca, Suite 920 Austin, Texas 78701 512 457-9838 direct 512 750-5854 cell 512 45 7-9066 fax Aleshire@R-Alaw.com

From: Bill Aleshire [mailto :aleshire@r-alaw.com] Sent: Monday, July 22, 2013 6:21 PM To: 'George Hyde' Cc: Kimberly Fuchs Subject: Allala v El Paso

--- -------------

------

George, Here is how I would summarize Ms. Allala's position regarding the City's inquiry about settlement 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. All ala is not willing to give up on getting public disclosure of correspondence conducted between the Mayor, City Council, and City Manager about city business as requested in her open records request over 9 months ago. Asking her to do so is not asking for a settlement, it' s asking her to surrender her quest for transparency. I was pleased to hear from the City Attorney that this City Council wants to stmi operating in a more open fashion than prior Councils, and not conduct public business using personal email accounts, and when personal email accounts are used, to promptly forward that conespondence into the City's servers to facilitate the public infonnation process. If all the members of tllis Council, and the City Manager, understand what is and what is not public business-a necessary predicate for pursuing tllis new transparency and compliance with long-standing records retention laws-then each of the Council members and the City Manager have the skill and understanding how to go back to their personal email accounts and provide the City with any emails that were witllin the scope of Ms. Allala's open records request, thus facilitating the City's disclosure of that correspondence, and, I might add, facilitating settlement of this lawsuit.

2.

3. If all the persons to whom the Allala open records request was addressed (Council and City Manager) have already turned over all records within the scope of that request, then we would request that that be documented in a sworn statement from each of them to that effect. 4. If some of the persons to whom the Allala open records request was addressed have continued to withhold records that were in their possession at the time of the request and that are within the scope of the request, then, if they want this case to settle, those City officials must turn those records over for public disclosure and sign a sworn statement that they have then turned over all responsive records in their possession.

5.

If some the persons to whom the Allala open records request was addressed insist on retaining records within the scope of the request, then, in order to settle the case, we would expect the City Council to b1ing suit against those City Council officials, fonner officials, or City Manager, pursuant to the Local Government Records Act, to require them 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 far estimated 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 and the City Manager to communicate with each other about city business are not confidential and cannot be redacted, despite the ruling to the contrary by the Attorney General. We would need to resolve 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 of responsive records but have not turned them over. That discovery would be pursued in August 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 of El Paso, but that new day crumot start until all the Council Reps and the City Manager disclose the requested records of past public business they still personally possess.

Riggs Aleshire & Ray PC 700 Lavaca, Suite 920 Austin, Texas 78701 512 457-9838 direct 512 750-5854 ce ll 512 457-9066 fax Aleshire@R-Alaw.com

Dedicated to Outstanding Customer Service for a Better Commu nity

SERVICE SOLUTIONS SUCCESS

August 29, 20 13

Ms. Susie Byrd 2701 Louisville St. El Paso, TX 79930 Dear Susie Byrd, As you are aware, on Tuesday, August 20,2013, the City Council authorized me as the City's Public Information Officer to exercise the authority granted to the governing body to request the voluntarily submission of any e-mails maintained in private e-mail accounts which are responsive to the requests for public information currently pending resolution in Travis County District Court (the "District Court"). There are currently seven (7) requests for information from private e-mail accounts pending in the District Court. Enclosed is a form summarizing each request that is seeking information from your personal e-mail accounts. If you wish to see the original request in its entirety or have questions regarding the scope of the request please contact my office. Please review the request and execute each enclosed form indicating your response to the request for voluntary submission. Note that the information you provide to the City will be released to the public. Please provide the executed forms and any responsive documents to my office on or before close of business on Monday, September 16,2013. Sincerely,

a~.,~d,i&Tewilson City Manager

EXHIBIT

I
City Hall 1300 N. Campbell

I El Paso, Texas 79901 1 (915) 541-4844

REQUEST 1 CAG ID# 472215)

As the City's Public Information Officer, I am hereby requesting that you voluntarily turn over to the City any documents that you have in any of your personal e-mail accounts that are responsive to the following requests: E-mai]s sent to or from your personal e-mail accounts to or from the Mayor, other Council Representatives, or the City Manager regarding any matter of public business of the City ofEl Paso sent from January 1, 2012 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 any representative or attorney thereof; Franklin Mountain Sports Group LLC or any representative or attorney thereof; Hunt Holdings Sports Group LLC or any representative or attorney thereof regarding public business of the City of El Paso sent from January 1, 2012 to September 5, 2012.

- - - - - - - - - - - ' have reviewed the above request for information from my private e-mail accounts and respond as follows:

D
D

I have searched my private e-mail accounts for the requested information and the communications responsive are enclosed.

I have searched my private e-mail accounts for the requested information, but have no communications responsive to the request.
Other: - - - - - - - -- -- -- - -- - - - - -- - - - --

Signarure: ___________________________

Date:

--------- - - ---

REQUEST 2 (AG ID# 472215) As the City's Public Information Officer, I am hereby requesting that you voluntarily tum over to the City any documents that you have in any of your personal e-mail accounts that are responsive to the following requests: E-mails sent to or from your personal e-mail accounts to or from the Mayor, other Council Representatives, or the City Manager regarding any matter of public business of the 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 any representative or attorney thereof; Franklin Mountain Sports Group LLC or any representative or attorney thereof; Hunt Holdings Sports Group LLC or any representative or attorney thereof regarding public business of the City of El Paso sent from September 6, 2012 to October 5, 2012.

- - - - - - - - - - - ' have reviewed the above request for information from my private e-mail accounts and respond as follows:

I have searched my private e-mail accounts for the requested information and the communications responsive are enclosed.

D D

I have searched my private e-mail accounts for the requested information, but have no communications responsive to the request. Other: - - - - - - - - - - - - - - - - - - - - - - - - Date:

Signature:----- -- - - - - - - - - -

--------------

REQUEST 3 (AG TD#473978) As the City's Public Information Officer, I am hereby requesting that you voluntarily turn over to the City any documents that you have in any of your personal e-mail accounts that are responsive to the following request: Emails and text messages sent to or from your personal e-mail accounts or devices to or from Joyce Wilson 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 or from 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 my private e-mail accounts and respond as follows:

D
D

I have searched my private e-mail accounts for the requested information and the

communications responsive are enclosed.

I have searched my private e-mail accounts for the requested information, but have no communications responsive to the request.
Other: - - - - - - - - - - - - - - - - - - - - - - - - -

Signature: _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Date:

----------- -

REQUEST 3 (AG ID# 473978)- FOR JOYCE WILSON ONLY As the City's Public lnfonnation Officer, I am hereby requesting that you voluntarily tum over to the City any documents that you have in any of your personal e-mail accounts that are responsive to the following requests: Emails and text messages sent to or from your personal e-mail accounts or devices to or from 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, 2012 to September 22, 20 12. Emails and text messages sent to or from your personal e-mail accounts or devices to or from Joyce Wilson, John Cook, Ann Morgan Lilly, Susie Byrd, Emma Acosta, Michiel 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 my private e-mail accounts and respond as follows:

D
D

I have searched my private e-mail accounts for the requested infonnation and the communications responsive are enclosed.

I have searched my private e-mail accounts for the requested information, but have no communications responsive to the request. Other: _ _ __ _ __ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _

Signature:----- - - - - - - - - -- -

Date:

-------------- -----

REQUEST 3 (AG ID# 473978)- FOR CARL ROBINSON ONLY

As the City's Public Infonnation Officer, I am hereby requesting that you voluntarily tum over to the City any documents that you have in any of your personal e-mail accounts that are responsive to the following requests: Emails and text messages sent to or from your personal e-mail accounts or devices to or from John Cook, Ann Morgan Lily, Susie Byrd, Carl Robinson, Emma Acosta, Michiel Noe, Steve Ortega or Cortney Niland regarding the downtown ballpark from June 1, 2012 to September 22, 2012.

- - - - - - - - - - - ' h a v e reviewed the above request for infom1ation from my private e-mail accounts and respond as follows:

D D

I have searched my private e-mail accounts for the requested information and the communications responsive are enclosed.
I have searched my private e-mail accounts for the requested information, but have no

communications responsive to the request.

O t h e r : - - - - - - - - - - - - - -- - - -- - - - - -

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 to the City any documents that you have in any of your personal e-mail accounts that are responsive to 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, and similar names for the same person); Mountain Star Sports Group LLC or any representative or attorney thereof; Franklin Mountain Sports Group LLC or any representative or attorney thereof; Hunt Holdings Sports Group LLC or any representative or attorney thereof regarding any matter of public business of the City of El Paso sent from January 1, 2012 to December 21, 2012.

I , have reviewed the above request for information from my private e-mail accounts and respond as follows:

I have searched my private e-mail accounts for the requested information and the communications responsive are enclosed.

I have searched my private e-mail accounts for the requested information, but have no communications responsive to the request.

Other:---- - - - - - - - - - - - - - - - - - - - -

Signarure: _______________________________

Date:

----------------------

REQUEST 5 (AG ID# 484002)- FOR JOYCE WILSON ONLY As the City's Public Information Officer, I am hereby requesting that you voluntarily turn over to the City any documents that you have in any of your personal e-mail accounts that are responsive to the fo !lowing requests: E-mails sent to or from your personal e-mail accounts sent from August 1, 2012 to August 3 1, 2012 that inc! ude the following content: "FYI - I sent this email to Ann and then forwarded to Debbie. We can beat these petition things by nailing them on the Notary Public's certification ... City ought to go after this ... ask Richarda . . ."; "I am going to ask Jim Tolbert who notarized his petitions and did a notary stand there 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:

I have searched my private e-mail accounts for the requested information and the communications responsive are enclosed.

I have searched my private e-mail accounts for the requested infonnation, but have no communications responsive to the request.

Other: - -- - - - - - - - - - - - - --

--------

Signature: _ __ ______________

Date:

REQUEST 6 CAG fD # 484002)- FOR ANN MORGAN LILLY AND DEBBIE HAML YN ONLY As the City's Public Information Officer, 1 am hereby requesting that you voluntarily tum over to the City any documents that you have in any of your personal e-mail accounts that are responsive to the following requests: E-mails sent to or from your personal e-mail accounts sent from August 1, 2012 to August 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 a sign in sheet. We removed our names but I kept one sheet. Look at the bottom where the notary has to sign. Read my other attachments on prohibited acts by notaries. Every signature on a petition must be physically signed in front of a notary. If a notary certifies this petition and did not see these people sign then they are breaking the law. I have to ask-does Richarda get any kind of affidavit from the notary that signs petition 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 stand and witness each and every signature." I , have reviewed the above request for infonnation from my private e-mail accounts and respond as follows:

I have searched my private e-mail accounts for the requested information and the communications responsive are enclosed.

I have searched my private e-mail accounts for the requested information, but have no communications responsive to the request. Other: - - - - - - - - - - - - - - - - - - - - - - - -

Signature:----------------

Date:

------------

REQUEST 7 (AG ID # 486144)- FOR STEVE ORTEGA ONLY As the City's Publi c Information Officer, I am hereby requesting that you voluntarily tum over to the City any documents that you have in any of your personal e-mail accounts that are responsjve to 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. the above request for information from my

, have reviewed ---------------------private e-mail accounts and respond as follows:

D
D

I have searched my private e-mail accounts for the requested information and the

communications responsive are enclosed.

I have searched my private e-mail accounts for the requested infonnation, but have no communications responsive to the request.
Other:--- - - - - - - - - - - - - - - - - - - - - - -

Signature: -----------------------------

Date:

----------------------