FILED
`10/28/2022 4:36 PM
`FELICIA PITRE
`DISTRICT CLERK
`DALLAS CO., TEXAS
`Martin Reyes DEPUTY
`
`BINH LE,
`
`Plaintiff,
`
`Vv.
`
`LEVI MCCATHERN,II,
`MATTHEW MUCKLEROY,
`JAMES SHERRY,and
`MCCATHERN, PLLC,
`
`Defendants.
`
`CAUSE NO. DC-21- 07876
`
`116™ DISTRICT COURT
`DALLAS COUNTY, TEXAS
`
`[Hon. Tonya Parker]
`
`
`
`DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S RETAINED EXPERTS
`
`Defendants Levi McCathern, Il, Matthew Muckleroy, James Sherry, and McCathern,
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`PLLC moveto strike Plaintiff's retained expert witnesses and to disallow their testimonyastrial,
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`as follows:
`
`I.
`
`Summary of Motion
`
`In this legal malpractice case, Plaintiff alleges that in his underlying case his expert
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`damages reports were not timely developed or submitted, causing him to lose on summary
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`judgment. In no small irony, in this case Plaintiff untimely and insufficiently disclosed his
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`retained experts and the accompanying materials required by Rule 195. In fact, Plaintiff did
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`not disclose his experts’ opinions until 3:20 on the afternoon of the last day of the discovery
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`period. The insufficient and untimely disclosure of his experts merits that they be stricken and
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`not allowedto testify at trial.
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`The Court entered a case management order on November30, 2021, setting the expert
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`DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S RETAINED EXPERTS — PAGE 1
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`
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`designation date for plaintiff as June 24, 2022. Before that date, Plaintiff had received fulsome
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`interrogatory answers and responses to requests for admission from each defendant, and
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`possessed the client file materials and communications from the underlying representation.
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`On June 24 Plaintiff served on Defendants what he purported were Rule 195.5 Expert
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`Disclosures. (Ex. A). However, the designations for Plaintiff's retained experts contained so
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`little information they did not constitute even a minimal Rule 195 designation. (/d.)
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`The designation of Plaintiff's damages expert, Christy Bastian, provided only a subject
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`matter for her testimony, and no information regarding the substance of her opinions and
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`mental impressions: “Ms. Bastian is expected to testify to all aspects of Plaintiff's losses and
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`proximate cause and damagesin this case. Ms. Bastian is expected to opine that the underlying
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`claims and lawsuit caused Plaintiff pecuniary damages.”(/d.)
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`Magnifyingthe insufficiency of that response, Plaintiff never provided even Rule 194
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`Initial Disclosures — which require a description and calculation of alleged damage - until the
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`last day of the court-ordered discovery period. Thus, for the entire duration of the discovery
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`period, Plaintiff provided none of the disclosures related to damages required by Rule
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`194.2(b)(4).
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`Plaintiff's designation for Plaintiff's liability expert, Michael Seiler, contained the
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`barest of information. (/d.) Plaintiff failed to provide any of the information or documents
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`required by Rule 195.5(4)(A) through(E).
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`Neither expert provided a report.
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`On August 17, 2022, Defendants requested the documents Plaintiff's experts had reviewed
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`pursuant to Rule 195.5(a)(4)(A), and communications pursuant to Rule 195.5(c)(2). (Ex. B).
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`Plaintiff did not provide a list of documents reviewed by his retained experts until the last day of
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`DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S RETAINED EXPERTS — PAGE 2
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`discovery, October 21, 2022.
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`On September 7, 2022 Defendants requested to depose Mr. Seiler and Ms. Bastian.
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`(Ex. C). However, Plaintiff refused to tender the experts for deposition insisting that Plaintiff's
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`experts would be made available for depositions only after the parties had been deposed. (Ex.
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`D). Plaintiff's self-serving denial of this discovery relies on a false premise. Expert disclosure
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`deadlines are not dependent on the prior occurrence of other discovery. If Plaintiff wished to have
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`Defendants’ depositions for his experts, he could and should have conducted them before the
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`plaintiff's expert designation deadline. But that is not what happened. Plaintiff never requested a
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`Defendant’s depositions until August 23, 2022, well after he was required to make expert
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`disclosures. And then, after the defendants went to considerable lengths to schedule the parties
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`depositions, Plaintiff declined to depose Defendant Matt Muckleroyat all. And the depositions of
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`Levi McCathern and Jim Sherry did not provide surprising information of the liability questions,
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`or any material necessary to Plaintiff's damages expert.
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`On October 14, 2022, Defendants specifically addressed the late and insufficient expert
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`disclosure in a letter addressed to Plaintiff's counsel, still seeking expert depositions within
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`the discovery period:
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`the expert should be
`When an expert designation is served without a report,
`prepared to be deposed within 15 days of the designation. When the there is no
`expert report tendered, as in this case, expert depositions are to be tendered
`“reasonably promptly.” Tex. R. Civ. P. 195.3(a)(1). That did not occur in this case.
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`(Ex. E). Plaintiff nevertheless chose not to tender his experts for deposition within the
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`discovery period. (Ex. F).
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`DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S RETAINED EXPERTS — PAGE 3
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`
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`II.
`Arguments and Authorities
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`Plaintiff was required to serve his Initial Disclosures on August 25, 2021, but chose to
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`file them 422 days late. His Initial Disclosures were served on October 21, 2022, the last day
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`of the discovery period. By that time, they did the Defendants little good. By withholding his
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`Initial Disclosures related to his claimed damages until the last moments of discovery,
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`Plaintiff denied Defendants the right to perform discovery on his damages model. By not
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`disclosing his expert’s opinions, Plaintiff prejudiced Defendants by forcing them to guessas
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`his damages claims. By not tendering his experts for deposition during the discovery period,
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`Plaintiff prejudiced the Defendants by forcing them to perform discovery late in the game,
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`close to trial, and after the discovery period had closed.
`
`Note 1 to Rule 194 states the following in part:
`
`Rule 194 is amended based on Federal Rule of Civil Procedure 26(a) to require
`disclosure of basic discovery automatically, without awaiting a discovery request.
`A party is not excused from making its disclosures because it has not fully
`investigated the case or because it challenges the sufficiency of another party's
`disclosures or because another party has not madeits disclosures.
`
`Parties have a duty to amend or supplement incomplete or incorrect responses to written
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`discovery Tex. R. Civ. P. 193.5(a). If a party fails to timely make, amend, or supplement a
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`discovery response, that party may not offer the testimony of a witness who was not timely
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`identified unless the trial court finds that (1) good cause exists for the failure to timely make,
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`amend, or supplement the response, or (2) the failure will not unfairly surprise or prejudice the
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`other parties. /d. 193.6(a); Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 913-14 (Tex.1992)
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`(applying former Rule 215.5). This rule is mandatory, and the only permissible sanction for a
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`violation—exclusion of the testimony—is automatic, unlessthe trial court finds good causeor lack
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`of surprise or prejudice. Alvarado, 830 S.W.2d at 914. The party seeking to call the witness bears
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`DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S RETAINED EXPERTS — PAGE 4
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`
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`the burden of establishing good cause or the lack of unfair surprise or prejudice, and although the
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`trial court has discretion in determining whether good cause or lack of unfair surprise exists, the
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`trial court's finding must be supported by the record. Tex. R. Civ. P. 193.6(b); Alvarado, 830
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`S.W.2d at 913-14.
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`By laying behind the log, Plaintiff prevented Defendants from appropriately developing
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`their case, in violation of Rule 195.6 and 193.5. Plaintiff served a Designation of Experts on June
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`24, 2022. The Designation did not include any expert reports, which of course are not required by
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`the Rule. But when a report is not provided, the expert must be made available for deposition
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`“reasonably promptly.” Aside from that, the Designation did not include many of the disclosure
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`items required by Rule 195 (the general substance of the expert’s mental impressionsand a brief
`
`summary of the basis for them; all documents,
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`tangible things, reports, models, or data
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`compilations that have been provided to, reviewed by or for the expert in anticipation of the
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`expert’s testimony; a list of all publications authored in the previous 10 years; a list of cases in
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`which, during the previous four years, the expert testified as an expert at trial or by deposition; and
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`a statement of the compensation to be paid for the expert’s study and testimony in the case) and
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`wastherefore insufficient. Moreover, the Designation of Ms. Bastian contained no description of
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`her opinions whatsoever. It merely stated that she will testify on damagesissues. Plaintiff provided
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`all this required information that should have been included in the June 24, 2022 expert designation
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`on the last day of discovery.
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`Incredibly, Plaintiff still has not as of this filing completed his Rule 195(a) disclosures.
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`Plaintiff's expert designationstill fails to comply with Rule 195.5(a)(4)(C) through (E), because
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`Plaintiff failed to providea list of all publications authoredin the last 10 years by his experts, a list
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`of cases in which, during the previous four years,
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`the experts testified, and the expert’s
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`DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S RETAINED EXPERTS — PAGE 5
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`
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`compensation for their testimony in this case. As to this material, Plaintiff simply states that “any
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`responsive documents have been and/or will be produced prior to the expert’s deposition.” So,
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`Defendantsare still waiting.
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`For these reasons, Defendants ask the Court to strike Plaintiff's designation of Mr. Seiler
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`and Ms. Bastian, and disallow their testimonyat trial. Tex. R. Civ. P. 193.6(a).
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`WHEREFORE, PREMISES CONSIDERED,Defendants respectfully request that their
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`Motion to Strike Plaintiff's Retatned Experts be granted, that the designations of Michael Seiler
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`and Christy Bastian be stricken, that they not be allowedto testify, and for any all other and further
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`relief to which he may beentitled.
`
`By:
`
`Respectfully submitted,
`
`/s/ William D. Cobb, Jr.
`WILLIAM D. COBB, JR.
`Texas Bar No. 04444150
`weobb@cobbmartinez.com
`JUSTIN H. ROY
`Texas Bar No. 24013428
`jroy@cobbmartinez.com
`
`COBB MARTINEZ WOODWARD PLLC
`1700 Pacific Avenue, Suite 3100
`Dallas, Texas 75201
`Phone: 214.220.5200
`Facsimile: 214,.220,5299
`
`ATTORNEYS FOR DEFENDANTS
`
`DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S RETAINED EXPERTS — PAGE 6
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`
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`CERTIFICATE OF SERVICE
`
`This is to certify that a true and correct copy of the foregoing document was served on
`counsel of record in accordance with the Texas Rules of Civil Procedure on October 28, 2022.
`
`/s/ Justin Roy
`JUSTIN ROY
`
`
`CERTIFICATE OF CONFERENCE
`
`I, the undersigned attorney, hereby certify to the Court that I have conferred with opposing
`counsel in an effort to resolve the issues contained in this motion without the necessity of Court
`intervention, and opposing counselhas indicated that he is opposed to this motion.
`
`/s/_ Justin H. Roy
`JUSTIN H. ROY
`
`DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S RETAINED EXPERTS — PAGE 7
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`
`
`CAUSE NO. DC-21-07876
`
`IN THE DISTRICT COURT OF
`
`DALLAS COUNTY, TEXAS
`
`116TH JUDICIAL DISTRICT
`
`§ § § § § § § § §
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`§
`
`BINHLE,
`Plaintiff
`
`Vv.
`
`LEVI MCCATHERN,II,
`MATTHEW MUCKLEROY,
`JAMES SHERRY, and
`MCCATHERN,PLLC,
`Defendants
`
`PLAINTIFF BINH LE’S DESIGNATION OF EXPERT WITNESSES
`
`II, Matthew Muckleroy,
`TO: Defendants, Levi McCathern,
`James Sherry and McCathern, PLLC, by and through their
`attorney of record, William D. Cobb, Jr. of Cobb Martinez
`Woodward, PLLC, 1700 Pacific Avenue, Suite 3100, Dallas,
`Texas 75201.
`
`Pursuant to the applicable Texas Rules of Civil Procedure, Plaintiff Binh Le
`
`files and serves this Designation of Expert Witnesses.
`
`Respectfully submitted,
`
`THE KASSAB LAW FIRM
`
`T1tecce
`
`i |
`
`LANCE CHRISTOPHER KASSAB
`Texas State Bar No. 00794070
`lance@kassab.law
`DAVID ERIC KASSAB
`Texas State Bar No. 24071351
`david@kassab.law
`NICHOLAS R. PIERCE
`Texas State Bar No. 24098263
`nicholas@kassab.law
`1214 Elgin Street
`Houston, Texas 77004
`
`
`
`Telephone: 713-522-7400
`Facsimile: 713-522-7410
`
`ATTORNEYS FoR PLAINTIFF
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and correct copy of the above and foregoing
`instrument has been forwarded to all known parties and/or counsel of record
`pursuant to the Texas Rules of Civil Procedureon this, the 24t» of June, 2022.
`
`T Hee
`
`NICHOLAS R, PIERCE
`
`
`
`
`PLAINTIFF BINH LE’S DESIGNATION OF EXPERTS
`
`1. For any testifying expert:
`
`a. The expert’s name, address, and telephone number.
`
`Retained Experts
`
`Michael Thomas Seiler
`2700 Research Forest Drive, Suite 100
`The Woodlands, Texas 77381
`281-419-7770
`Retained legal expert
`
`Christy Bastian, CPA/ABA, CVA
`133 Saxon Street
`Marco Island, Florida 34145
`727-667-5303
`Retained certified public accountant and valuator
`
`
`Non-Retained Experts
`
`Karl D. Weisheit, CPA, CFF, CVA
`LOWERS FORENSIC INTERNATIONAL
`15601 Dallas Pkwy., Suite 1050
`Addison, Texas 75001
`972-980-5060
`Non-retained certified public accountant and valuator
`
`Stephen Patscot
`SPENCER STUART
`353 N. Clark, Suite 2500
`Chicago, Illinois 60654
`312-822-0080
`Fact witness and non-retrained executive search and placement expert
`
`R. Rogge Dunn, Gregory Clift, and Joshua J. Iacuone
`ROGGE DUNN GROUP, P.C.
`500 North Akard, Suite 1900
`Dallas, Texas 75201
`214-888-5000
`Fact witnesses and non-retained legal experts
`
`
`
`Steven Mitby
`MITBY PACHOLDER JOHNSON PLLC
`P.O. Box 2379
`Friendswood, Texas 77546
`713-234-1446
`Fact witness and potential non-retained legal expert
`
`District Judge Sam A. Lindsay
`1100 Commerce Street, Room 1544
`Dallas, Texas 75242
`214-753-2373
`Fact witness and potential non-retained legal expert
`
`Lance Christopher Kassab
`David Eric Kassab
`THE KASSAB LAW FIRM
`1214 Elgin Street
`Houston, Texas 77004
`713-522-7400
`Non-retained experts on attorney’s fees
`
`b. The subject matter on which the expert will testify.
`
`Retained Experts
`
`Michael Thomas Seiler
`
`Michael Thomas Seiler is a retained legal expert in this case. Mr. Seiler is
`expected to testify regarding all aspects of Plaintiff's claims and legal theories,
`including but not limited to Defendants’ negligence, breach of fiduciary duty,
`breach of contract, and, in the alternative, unjust enrichment claims. Mr.
`Seiler is expected to testify regarding proximate cause and damages. Mr.Seiler
`is further expected to testify regarding the value of the underlying lawsuit and
`that Defendants’ conduct was a proximate or producing cause of Plaintiffs
`losses.
`
`Christy Bastian
`
`Christy Bastian is a retained accounting and valuation expert. Ms. Bastian is
`a Certified Public Accountant and is expected to offer expert
`testimony
`concerningall aspects of the Plaintiff's underlying losses as well as proximate
`cause and damages.
`
`
`
`Non-Retained Experts
`
`Karl D. Weisheit, CPA, CFF, CVA
`
`Karl Weisheit is a non-retained accounting and valuation expert. Mr. Weisheit
`is a Certified Public Accountant who was hired by Defendants in the
`underlying case to value Plaintiffs losses and damages. Mr. Weisheit is
`expected to offer expert testimony concerning all aspects of the Plaintiffs
`underlying losses as well as proximate cause and damages.
`
`Stephen Patscot
`
`Stephen Patscot is a non-retained executive search and placement expert that
`assesses, recruits, and develops board directors, chief human resourcesofficers
`and other C-level
`leaders. Mr. Patscot is also a fact witness due to his
`involvement
`in recruiting and placing the Plaintiff at Exeter Finance
`Corporation as its CHRO. Mr. Patscot is expected to offer expert testimony
`relating to the Plaintiff's employment, including but not limited to jobs and
`compensation for which he would have been eligible and the impact of the
`failed litigation on his employment prospects.
`
`R. Rogge Dunn, Gregory Clift, & Joshua J. Iacuone
`Steven Mitby
`Judge Sam Lindsay
`
`R. Rogge Dunn, Gregory Clift, and Joshua J. Iacuone are licensed attorneys in
`the State of Texas. Mr. Dunn, Mr.Clift, and Mr. Iacuoneare fact witnesses due
`to their role as the underlying defendants’ lawyers. Mr. Dunn, Mr. Clift, and
`Mr. Iacuone mayalso serve as non-retained legal experts in this case.
`
`Steven Mitby is a licensed attorney in the State of Texas. Mr. Mitbyis fact
`witness due to his role as counsel for the Plaintiff in the underlying suit and
`appeal. Mr. Mitby mayalso serve as a non-retained legal expert in this case.
`
`Judge Sam A. Lindsay is a licensed attorney in the State of Texas as wellasa
`federal judge. Judge Lindsayis a fact witness due to his role as the presiding
`judge over the underlying dispute. Judge Lindsay may also serve as a non-
`retained legal expert in this case.
`
`In addition to the specified persons’ knowledge of relevant facts, these persons
`are expected to offer expert testimony concerning all aspects of Plaintiffs
`claims in this case, including legal standards of care and conduct for attorneys
`
`
`
`handling the claims made the basis of the underlying case, proximate cause
`and damages.
`
`Lance Kassab and David Kassab
`
`Lance and David Kassab are licensed attorneys in the State of Texas and
`attorneys of record for Plaintiff in this matter. Lance and David Kassab are
`expected to testify regardingall aspects of attorney’s fees in litigating this case,
`including the reasonableness and necessity of providing legal services to
`Plaintiff. Lance and David Kassab mayalso rebut any attorney fee testimony
`provided by any partyor their counsel.
`
`c. The general substance of the expert’s mental impressions
`and opinionsand a brief summaryof the basis for them, or
`if the expert is not retained by, employed by, or otherwise
`subject to the control of the Plaintiff herein, documents
`reflecting such informationtestify.
`
`Retained Experts
`
`Michael Thomas Seiler
`
`Mr.Seiler is a licensed Texas attorney. Mr. Seiler is generally expected to opine
`that: Defendants fell below the standard of care in the way they represented
`Plaintiff and handled his underlying lawsuit; Defendants breachedtheir duties
`to Plaintiff in the mannerin which they represented him; the breaches of those
`duties were a proximate or producing cause of Plaintiff's damages; and,
`Defendants breached their contract with the Plaintiff by billing Plaintiff for
`numerous unauthorized amended and supplemental submissions that were
`filed without leave of court in violation of the Court’s orders and rules. Mr.
`Seiler is further expected to opine that Plaintiff's damages are equal to the
`value of the Plaintiffs claims in the underlying case and that, but for
`Defendants’ conduct, Plaintiffs underlying case would have been successful.
`Mr.Seiler’s opinions are expected to be based on his review of the underlying
`case file, his review of depositions, if and when taken, and other evidence as
`well as his education, knowledge and experience.
`
`Christy Bastian
`
`Ms. Bastian is a licensed Texas Certified Public Accountant and is also a
`forensic accountant. Ms. Bastian is expected to testify to all aspects of
`Plaintiff's losses and proximate cause and damages in this case. Ms. Bastian
`is expected to opine that the underlying claims and lawsuit caused Plaintiff
`
`6
`
`
`
`pecuniary damages. Ms. Bastian’s opinions are expected to be based on her
`knowledge, skill, experience, training and education as a Texas Certified
`Public Accountant, as well as her review of the records formingthe basisof the
`underlying claim,
`including Defendants’
`file in the underlying case,
`accountings, statements,
`receipts, and invoices, pleadings in this case,
`production in this case, the discovery in this case, including written discovery
`and depositions, as well as any publications applicable to accountants within
`the industry standard which may apply to the circ*mstances at issue herein.
`
`Non-Retained Experts
`
`Karl D. Weisheit
`
`Mr. Weisheit is a licensed Certified Public Accountant who was hired by
`Defendants in the underlying case to value Plaintiff's losses and damages. Mr.
`Weisheit is expected to testify to all aspects of Plaintiff's losses and proximate
`cause and damages in this case. Mr. Weisheit is expected to opine that the
`underlying claim and lawsuit caused Plaintiff pecuniary damages. Mr.
`Weisheit’s opinions are expected to be based on his knowledge,
`skill,
`experience, training and education as a Texas Certified Public Accountant, as
`well as his review of the records forming the basis of the underlying claim,
`including Defendants’ file in the underlying case, accountings, statements,
`receipts, and invoices, pleadings in this case, production in this case, the
`discovery in this case, including written discovery and depositions, as well as
`any publications applicable to accountants within the industry standard which
`may apply to the circ*mstances at issue herein. For additional information
`related to Mr. Weisheit potential opinions, Plaintiff refers Defendants to the
`expert reports produced by Mr. Weisheit in the underlying case.
`
`Stephen Patscot
`
`Stephen Patscot is a search and placement expert that assesses, recruits and
`develops board directors, chief human resources officers and other C-level
`leaders. Mr. Patscot is expected to testify regarding all aspects of the Plaintiffs
`employment, including but not limited to jobs and compensation for which he
`would have been eligible and qualified and the impact of the failed litigation
`on his employment prospects. Mr. Patscot’s opinions are expected to be based
`on his knowledge, skill, experience, training and education relating to his role
`in placing C-level executives, as well as his review of the records forming the
`basis of the underlying claim, including Defendants’ file in the underlyingcase,
`pleadings in this case, production in this case, the discovery in this case,
`including written discovery and depositions, as well as any publications
`
`
`
`applicable within the industry standard which may apply to the circ*mstances
`at issue herein.
`
`R. Rogge Dunn, Gregory Clift, & Joshua J. Iacuone
`Steven Mitby
`Judge Sam Lindsay
`
`The specified non-parties are licensed attorneys in the State of Texas. They are
`expected to opine that: Defendants fell below the standard of care in the way
`they represented Plaintiff and handled his underlying lawsuit; Defendants
`breached their duties to Plaintiff in the mannerin which they represented him;
`the breaches of those duties were a proximate or producing cause of Plaintiff's
`damages; and, Defendants breachedtheir contract with the Plaintiff by billing
`Plaintiff for numerous unauthorized amended and supplemental submissions
`that were filed without leave of court in violation of the Court’s orders and
`rules. They are further expected to opine that Plaintiff's damages are equal to
`the value of the claims in the underlying case and that, but for Defendants’
`conduct, Plaintiff's underlying case would have been successful. Their opinions
`are expected to be based on their knowledge, skill, experience, training and
`education as a lawyer as well as their knowledge of the underlying case.
`
`Lance Kassab and David Kassab
`
`Lance and David Kassab are expected to opine that the Plaintiffs attorneys’
`fees in this case are fair, reasonable and necessary. Lance and David Kassab
`will testify regarding the reasonable valueof the services provided by them to
`Plaintiff in this case.
`
`Each of these attorneys will testify based on their knowledge, skills, and
`experience as attorneys in the practice of civil litigation and based on their
`knowledge of reasonable and customary attorney’s fees charged in matters of
`this type. Their testimony will be based on their personal knowledge of the
`work done in this case and their review of the file. These attorneys will testify
`regarding the reasonable value of the attorneys’ services in this case when
`considering:
`
`The time and labor involved;
`The novelty and difficulty of the questions;
`The skill requisite to perform the legal services;
`The preclusion of other employment by the attorney due to the
`acceptance of the case;
`The customaryfee in the locality for similar legal services;
`e Whetherthe fee is fixed or contingent;
`
`8
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`
`
`The time limitations imposedby theclient or the circ*mstances;
`The amount involved and the results obtained;
`The experience, reputation, and ability of the attorneys;
`The undesirability of the case;
`Uncertainty of collection before the legal services have been
`rendered;
`e The nature and length of the professional relationship with the
`client;
`e Awards in similar cases; and,
`e Whether any fees are required to be segregated.
`
`Lance and David Kassab will continue to review the pleadings, discovery
`products, depositions, and other non-privilege documents in this matter.
`Because this case is ongoing and because the parties have not yet exchanged
`discovery on attorney’s fees, Lance and David Kassab have not yet reached an
`opinion regarding the amount
`to which they will
`testify at trial or the
`reasonableness and necessity of any other party’s fees.
`
`d. If the expert is retained by, employed by, or otherwise
`subject to the control of the respondingparty.
`
`i. All documents, tangible things, reports, models, or
`data compilations that have been provided to,
`reviewed by, or prepared by or for the expert in
`anticipation of the expert’s testimony.
`
`Retained Experts
`
`Any responsive documents have been and/or will be produced.
`
`ii. The expert’s current resume andbibliography.
`
`Retained Experts
`
`Any responsive documents have been and/or will be produced.
`
`Non-Retained Experts
`
`Karl D. Weisheit
`
`Information relating to Mr. Weish*t can be accessed online at:
`
`
`
`
`https://www.linkedin.com/in/karl-weisheit-cpa-cff-cva-804412/ or
`
`https://lowersforensics.com/wp-content/uploads/2020/10/kar1-
`weisheit-cv.pdf.
`
`Stephen Patscot
`
`Information relating to Mr. Patscot can be accessed onlineat:
`https://www.spencerstuart.com/our-consultants/stephen-g-
`patscot.
`
`R. Rogge Dunn, Gregory Clift, & Joshua J. Iacuone
`
`Information relating to the specified persons can be accessed
`onlineat:
`
`https://roggedunngroup.com/attorneys/rogge-dunn;
`
`https://roggedunngroup.com/attorneys/gregory-m-clift; and,
`
`https://roggedunngroup.com/attorneys/joshua-iacuone.
`
`Steven Mitby
`
`Information relating to Mr. Mitby can be accessed onlineat:
`https://mitbylaw.com/attorneys/steven-mitby/.
`
`Judge Sam Lindsay
`
`Information relating to Judge Lindsay can be accessed onlineat:
`
`https://en.wikipedia.org/wiki/Sam_A. Lindsay.
`
`Lance Kassab and David Kassab
`
`Information relating to Lance and David Kassab can be accessed
`onlineat:
`http://www.texaslegalmalpractice.com/.
`
`iii.
`
`A list of all publications authored in the previous 10
`years.
`
`Retained Experts
`
`Any responsive documents have been and/or will be produced.
`
`iv.
`
`A list of all other cases in which, during the previous
`four years, the expert testified as an expert at trial
`
`10
`
`
`
`or by deposition.
`
`Retained Experts
`
`Any responsive documents have been and/or will be
`produced.
`
`. A statement of the compensation to be paid for the
`expert’s study and testimonyin the case.
`
`Retained Experts
`
`Any responsive documents have been and/or will be produced
`
`11
`
`
`
`CMW
`
`COBB MARTINEZ WOODWARD
`
`Justin Roy
`214.220.5248
`
`August 17, 2022
`
`Via E-Service and Email: nicholas@kassab.law
`Nicholas R. Pierce
`Kassab Law Firm
`1214 Elgin Street
`Houston, Texas 77004
`
`214.220.5288 | direct fax
`jroy@cobbmartinez.com
`
`Re:
`
`Binh Le v. McCathern PLLC — Cause No. DC-21-07876 — In the District Court
`of Dallas County, Texas — 116" Judicial District.
`
`Dear Mr. Pierce:
`
`On behalf of the Defendants in the above referenced matter, this correspondence
`requests that your client, Binh Le, supplement his production of documents pursuant to
`Defendants’ Requests for Production. Please take note of the following deficiencies:
`
`Requestfor Production No. 71
`
`This request asks for Mr. Le’s communications with the Defendants. However, we have
`not received any communications between the Plaintiff and Defendants, including but not limited
`to, text messages. We know that they exist because we produced texts between the Plaintiff and
`Defendants.
`
`Request for Production No. 72
`
`This request asks for all communications between Mr. Le and any third-parties related to
`lawsuit. Please supplement Plaintiff's production with any documents
`indicating
`this
`communications he had where Plaintiff discussed this case with third-parties to this lawsuit.
`Defendants are aware that Plaintiff communicated with Michael Seiler and Steven Mitby in 2019
`when he was considering terminating McCathern, PLLC. All communications between Plaintiff
`and Michael Seiler and Steven Mitby need to be produced especially now that Mr. Seiler is a
`retained expert in this case as well as a fact witness.
`
`Testifying Experts’ Documents
`
`Pursuant to Rule 195.5(a)(4)(A) provide all documents, tangible things, reports, models,
`or data compilations that have been provided to, reviewed by, or prepared byor for Mr. Seiler
`and Ms. Christy Bastian in anticipation of their testimony. We also request all communications where
`you or any of Mr. Le’s other attorneys identify facts or data that helped form their opinions to be
`expressed in this case. Tex. R. Civ. P. 195.5(c)(2).
`
`Attorneys & Counselors 1700 Pacific Avenue, Suite 3100, Dallas, Texas 75201 P: 214.220.5200 F: 214.220-5299 cobbmartinez.com
`
`
`
`Nicholas R. Pierce
`
`August 2, 2022
`Page 2
`
`Also, the following files that were produced by cannot be opened:
`
`3 $R11HZQB
`[=) 401k Adoption Agreement
`[2) 401k Plan Document
`\@| HR Content - Wireframe v2
`Be HR Strategy - 2012
`[+) mySuccess Poster
`
`2/7/2015 5:26 PM
`2/23/2015 3:26 AM
`2/23/2015 3:26 AM
`10/28/2014 2:54 PM
`5/29/2014 4:33 PM
`7/11/2014 6:02 PM
`
`
`Microsoft Excel W...
`Adobe AcrobatD..
`Adobe AcrobatD..
`JPG File
`Microsoft PowerPco...
`Adobe Acrobat D...
`
`16,384 KB
`1 KB
`1 KB
`1KB
`1KB
`1KB
`
`The abovefiles are located in the “Exeter Laptop” folder in Mr. Le’s production.
`
`Please supplement Mr. Le’s production of documents by August 10, 2022, so the
`Defendants will not have to file a motion to compel.
`
`Please let me know if you have any questions.
`
`Sincerely,
`
`/s/ Justin H. Roy
`Justin H. Roy
`
`JHR/el
`
`#0493 / 00024
`CC: Levi McCathern, Matthew Muckleroy, and James Sherry
`
`
`
`Justin Roy
`Nicholas Pierce; Bill Cobb
`David Kassab; Lance Kassab
`RE: Binh Le v. McCathern
`Wednesday, September 7, 2022 11:14:00 AM
`image001.pnq
`imaqe002.pnq
`image002.pnq
`imaqe002.pnq
`
`From:
`To:
`Ca
`Subject:
`Date:
`Attachments:
`
`Nick -—
`
`Regarding mediation, we need to lock down either Chris Nolland or Jeff Kaplan as soon as possible.
`They are notavailable in October but Kaplan has availability on Nov. 1 and 4. Nolland has availability
`on Nov. 2, 3, and 4". Please let me knowif one of those dates works for you. The mediation
`deadline is Nov. 4.
`
`Regarding depositions, we need deposition dates for your experts, Michael Seiler and Christy
`Bastian, as soon as possible. Please provide the documents subject to the Rule 195.5 (c) exceptions
`as soon as possible so we can prepare for those depositions.
`
`Also, regarding fact witness depositions as we discussed yesterday wewill offer Jim Sherry on
`September 2? or 23 if we can take Mr. Le’s deposition the day before in Dallas. We need to take Mr.
`Le’s deposition in Dallas because our clients want to attend the deposition. We will then offer Levi
`McCathern and Matthew Muckleroy in October as schedules free up.
`
`Please let me knowif you want to discuss.
`
`Justin
`
`From: Nicholas Pierce <nicholas@kassab.law>
`Sent: Wednesday, August 31, 2022 12:37 PM
`To: Justin Roy <JRoy@cobbmartinez.com>; Bill Cobb <wcobb@cobbmartinez.com>
`Cc: David Kassab <david@kassab.law>; Lance Kassab <lance@kassab.law>
`Subject: RE: Binh Le v. McCathern
`
`Justin —
`
`I’d prefer that Binh’s deposition take place at our office. But I don’t want to makeit a majorissue if
`we can schedule mostof these in the same timeframe. Let me know your thoughts on the following:
`
`Binh — 9/22
`Jim — 9/23
`Matt — 9/26
`
`Levi’s deposition is tough dueto a trial setting and I am out of town for a wedding overa couple of
`those dates. However, I will get with Lance to discuss options.
`
`I don’t have an issue with either of the mediators you passed along but let me get with Lance onthat
`
`
`
`today — he may have some mediators in the Dallas area heprefers.
`
`Thanks,
`
`Nick
`
`a
`
`Nicholas Pierce
`
`The Kassab Law Firm
`<aSSa
`p: 713-522-7400
`
`LAW FIRM|¢ 713-522-7410
`We Sue Lawyers
`a: 1214 Elgin Street | Houston | Texas | 77004
`e: nicholas@kassab. law
`
`w: www.texasleqalmalpractice.com
`
`Associate Attorney
`
`From: Justin Roy <JRoy@cobbmartinez.com>
`Sent: Wednesday, August 31, 2022 12:09 PM
`To: Nicholas Pierce <nicholas@ka
