Case Information
*0 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 12/17/2015 5:18:17 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 14-15-00956-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 12/17/2015 5:18:17 PM CHRISTOPHER PRINE CLERK NO. 14-15-00956-CV IN THE COURT OF APPEALS FOR THE FOURTEENTH COURT OF APPEALS OF TEXAS HOUSTON, TEXAS IN RE MASTER FLO VALVE INC. AND MASTER FLO VALVE (USA), INC.
Relators . On Petition for Writ of Mandamus To the 80th District Court, Harris County, Texas Alpha Solutions S.A. de C.V., et al. v. Master Flo Valve Inc., et al. , No. 2014-00695 The Honorable Larry Weiman presiding RELATORS’ OPPOSITION TO MOTION FOR LEAVE TO FILE SUR-
REPLY OF REAL PARTIES IN INTEREST Gabriela Vega Michael B. Bennett
State Bar No. 24084014 State Bar No. 00796196
BAKER BOTTS L.L.P.
2001 Ross Avenue, Suite 600 State Bar No. 24037561
Dallas, Texas 75201 Dustin Appel
Telephone: (214) 953-6642
Facsimile: (214) 661-4642 J. Mark Little
BAKER BOTTS L.L.P. 910 Louisiana Street ATTORNEYS FOR RELATORS *2
A RGUMENT Master Flo opposes Alpha’s Motion for Leave to File Sur-reply both because
it is a departure from the normal appellate procedures and because it improperly
seeks to offer new arguments and authorities that could have been included in its
Response as part of the normal briefing schedule. The Texas Rules of Appellate
Procedure contemplate a petition for writ of mandamus, a response, and a reply.
See Tex. R. App. P. 52. There is no mention of a sur-reply. Yet Alpha seeks to
file a sur-reply and depart from this briefing structure based on nothing more than
the fact that it wants to have the last word and add new arguments and authorities it
could have easily included in its Response. This tactic is improper, and it does not
justify granting leave to file a sur-reply.
Moreover, the focal point of Alpha’s sur-reply is irrelevant to these
proceedings. Alpha seeks to argue that a 2012 joint motion filed in a patent case in
the United States District Court for Eastern District of Texas, in which Baker Botts
represented one of the parties, supplies precedent for the trial court’s discovery
order in this case and somehow undermines Master Flo’s arguments. But the
motion Alpha cites was premised on a model order applicable only in the Eastern
District of Texas—and only in patent cases at that. See Appendix of Sur-reply at
10 (explaining that “the Court directed the parties to review the Court’s Model
Order [Regarding E-Discovery in Patent Cases]”); id. at 25-29 (the “[Model] Order
Regarding E-Discovery in Patent Cases”). Thus, this new alleged precedent Alpha
is so desperate to get before the Court relates exclusively to unique e-discovery
procedures applied in one federal district, for patent cases only . Thus, in addition
to being something Alpha could have raised in its Response, the motion is
inapposite to the question of appropriate court-ordered discovery in Texas state
courts in ordinary civil litigation . No authority—much less a model patent order
from the Eastern District of Texas and the other federal district court cases cited by
Alpha—support a Texas state court’s authority to order a broad-ranging keyword
search across “across all email systems and electronic files” under terms and
conditions to be set by the court, without first finding discovery abuse or
malfeasance.
Alpha’s Motion for Leave to File Sur-reply is nothing more than an attempt
to get the last word in contravention of the normal briefing practice and to
introduce additional arguments and authorities that, if compelling, could and
should have been included in Alpha’s Response. Accordingly, this Court should
deny leave to file a sur-reply.
P RAYER For these reasons, Relators pray that the Court deny Alpha’s Motion for
Leave to File Sur-reply. Relators also pray for such further relief to which they
may be justly entitled.
Respectfully submitted, BAKER BOTTS L.L.P. By: /s/ Aaron M. Streett Michael B. Bennett State Bar No. 00796196 State Bar No. 24037561 Dustin Appel State Bar No. 24058819 J. Mark Little BAKER BOTTS L.L.P. 910 Louisiana Street Telephone: (713) 229-1209 Facsimile: (713) 229-2709 Gabriela Vega BAKER BOTTS L.L.P. 2001 Ross Avenue, Suite 600 Dallas, Texas 75201 COUNSEL FOR RELATORS *5 CERTIFICATE OF SERVICE I certify that a true and correct copy of this Opposition to Motion for Leave to File Sur-reply of Real Parties in Interest was served on all parties by the
means listed below on the 17th day of December 2015, addressed as follows:
John D. Sheppard
Nicholas A. Morrow
3701 Kirby Drive, Suite 840
Houston, Texas 77098
(by EFile)
Counsel for Real Parties in Interest
The Honorable Larry Weiman
Harris County Civil Courthouse
201 Caroline, 9th Floor
(713) 368-6100
(by Hand Delivery)
Respondent
/s/ Aaron M. Streett