brownsville isd v. twia court transcript

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1 REPORTER'S RECORD 2 TRIAL COURT CAUSE NO. 2012-DCL-8605 3 - - - - - - - - - - - - - - - x : 4 BROWNSVILLE I.S.D. : IN THE DISTRICT COURT

: 5 VS : 107TH JUDICIAL DISTRICT : 6 TEXAS WINDSTORM INSURANCE :ASSOCIATION, GAB ROBINS NORTH : 7 AMERICAN, INC., CUNNINGHAM :LINDSEY U.S., INC., REGGIE : 8 WARREN, AND STEVE BORGMAN : CAMERON COUNTY, TEXAS : 9 - - - - - - - - - - - - - - - x

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11 DEFENDANT TEXAS WINDSTORM'S MOTION TO EXTEND DISCOVERY RESPONSES, PLAINTIFF'S MOTION TO COMPEL, 12 AND MOTION FOR TRIAL SETTING 13 14 On the 12th day of December, 2013, the following 15 proceedings came on to be heard in the above-entitled and 16 numbered cause before the Honorable Benjamin Euresti, Jr., 17 Judge Presiding, held in Brownsville, Cameron County, 18 Texas. 19 Proceedings reported by computerized stenotype 20 machine. 2122232425

PAM L. ESQUIVEL, CSR, RMR, CRR

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1 A P P E A R A N C E S 2 APPEARING FOR THE PLAINTIFF: 3 HON. J. STEVE MOSTYN

State Bar No. 00798389 4 The Mostyn Law Firm

3810 West Alabama Street 5 Houston, Texas 77027

(713) 861-6616 6

HON. GILBERTO HINOJOSA 7 State Bar No. 09701100

Law Office of Gilberto Hinojosa & Associates 8 622 East St. Charles Street

Brownsville, Texas 78520 9 (956) 544-4218

10 APPEARING FOR THE DEFENDANT TEXAS WINDSTORM:

11 HON. ANDREW T. MCKINNEY IV

State Bar No. 13716800 12 Litchfield Cavo, L.L.P.

One Riverway, Suite 1000 13 Houston, Texas 77056

(713) 418-2000 14

HON. JOE HERNANDEZ JR. 15 State Bar No. 09517700

Guerra, Leeds, Sabo & Hernandez, P.L.L.C. 16 1534 East 6th Street, Suite 200


18 APPEARING FOR THE DEFENDANT GAB ROBINS, CUNNINGHAM LINDSAY, AND STEVE BORGMAN: 19

HON. DAN K. WORTHINGTON 20 State Bar No. 00785282

HON. E. MICHAEL RODRIGUEZ 21 State Bar No. 00791553

HON. EDUARDO ROBERT RODRIGUEZ 22 State Bar No. 17144000

Atlas, Hall & Rodriguez, L.L.P. 23 50 West Morrison Road, Suite A


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1 APPEARANCES CONTINUED 2 APPEARING FOR THE DEFENDANT REGGIE WARREN:

3 HON. ALBERT A. CARRION JR.

State Bar No. 03883100 4 Husch Blackwell, L.L.P.

111 Congress Avenue, Suite 1400 5 Austin, Texas 78701

(512) 472-5456 6 (512) 479-1101 Fax

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8 910111213141516171819202122232425


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1 INDEX 2 DECEMBER 12, 2013 PAGE VOL 3 Defendant Texas Windstorm's motion to extend

time for discovery responses 7 1 4

5 Plaintiff's motion to compel 13 1

6 Court's ruling on motion to compel 32 1



9 Motion for trial setting 42 1

10 Court's ruling 51 1

11 Adjourn 53 1

12 Certificate of Court Reporter 54 1 13141516171819202122232425


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1 INDEX OF EXHIBITS 2 PLAINTIFF'S EXHIBITS:

3 NO. DESCRIPTION OFFERED RECEIVED VOL

4 1 32 33 1E-mail from Bill Knarr dated

October 11, 2008 5

2 32 33 1E-mail from Bill Knarr dated 6 November 17, 2008


May 25, 2009 8

4 32 33 1E-mail from Alan Renshaw 9 dated June 29, 2009


February 26, 2008 11

6 1E-mail from Bill Knarr dated 12 February 18, 2009 13 14 15 16171819202122232425


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1 P R O C E E D I N G S 2 THE COURT: 12-DCL-8605, Brownsville I.S.D. 3 versus Texas Windstorm. 4 MR. HINOJOSA: Good morning, Your Honor. 5 THE COURT: Good morning. 6 MR. HINOJOSA: Gilberto Hinojosa and Steve 7 Mostyn and Stephanie -- 8 MR. MOSTYN: Magee. 9 MR. HINOJOSA: -- Magee for the plaintiffs.10 MR. WORTHINGTON: Judge, Dan Worthington,11 Eduardo Rodriguez, and Michael Rodriguez for GAB,12 Cunningham Lindsey, and Steve Borgman.13 MR. McKINNEY: Andrew McKinney and Joe14 Hernandez, Your Honor, for Texas Windstorm Insurance15 Association.16 MR. CARRION: Albert Carrion with Husch17 Blackwell for Reggie Warren.18 THE COURT: Did we get everybody?19 MR. HINOJOSA: Yes, Your Honor.20 THE COURT: All right. What do we have?21 MR. WORTHINGTON: Judge, there are three22 motions set today. There's a motion for trial setting, a23 motion to compel, and a motion to extend discovery24 responses.25 THE COURT: Okay. What do you want to hear


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1 first? 2 MR. McKINNEY: The first filed motion was 3 the motion to extend the time for discovery responses, 4 Judge. That was my motion. 5 THE COURT: Motion to extend? Okay. 6 MR. McKINNEY: Yes, Judge. 7 THE COURT: Go ahead. 8 MR. McKINNEY: I substituted into this 9 case, Your Honor, in mid-October and learned at the end of10 the month toward the end of October, I want to say October11 the 30th, that discovery had been propounded on my12 predecessor on September the 30th. Answers were due on13 November the 4th. I E-mailed opposing counsel requesting14 an additional two weeks because I was jammed up on time.15 I had an out-of-town travel planned. I had -- we had been16 very busy in Galveston. We had nine cases set for trial17 on November the 4th in Galveston, and I had been very18 occupied for a two month or six weeks period of time to19 prepare for those cases.20 I did not get an agreement to extend time21 by two weeks, so I filed a motion with the Court to extend22 the time by two weeks. In fact, I responded in I want to23 say nine total days and six business days. I objected to24 about half, answered subject to the objection in most25 cases and just answered the rest of the discovery.


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1 So we're really here to determine whether 2 by -- moving within the 30 days for an extension of time 3 two weeks stating my good cause. I just didn't have time 4 to get to it. I didn't have the full 30 days. I need 5 some additional time to investigate and talk to my client 6 and whatnot, whether I waived my objections. 7 And I think it's always been pretty 8 standard. I don't spend much time in the Valley, but all 9 the Valley lawyers I've ever worked with always have10 extended time to me. I've always extended time to them.11 It's how I've typically done it. And I'm just asking for12 two weeks so that my objections can be heard on the13 merits. I may lose on the objections, but I'd like to be14 heard on the merits.15 MR. MOSTYN: Your Honor, can I respond?16 Steve Mostyn for the plaintiff. It generally is my17 practice to grant an extension, but I've had experience18 with this particular law firm. In fact, Mr. Worthington19 needed an extension, and I granted him an extension for20 two weeks because Mr. Worthington and I know each other.21 I asked him to be sure to provide me -- if I gave him an22 extension, would he actually give me the answers, not just23 objections. And he agreed to that, and that's what I got24 from the GAB Robins. With this particular law firm in25 Galveston, we've been down the can-I-have-an-extension


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1 road, and then I get nothing but objections. 2 And in fact, if you will defer the ruling 3 on this until you hear the merits of the objections, they 4 didn't answer a single interrogatory, nor did they file a 5 verification. In fact, Judge, they even objected to 6 answering the question of who was answering the 7 interrogatories. 8 And so when Mr. McKinney asked me for an 9 extension, this is for the Brownsville Independent School10 District, I wrote him back and I said, "I cannot agree o11 that. The school is leaking every day, and there's mold12 in the classrooms. This case must move as quickly as13 possible."14 And what we got back, Your Honor, we did15 get a motion to extend time that they didn't request a16 hearing on. We've had to follow up on numerous occasions17 asking them to supplement their answers, including an18 E-mail between he and I -- me and his managing partner in19 which I state to the managing partner, "We still --" this20 is two weeks after they had -- answers were due. I wrote21 to his managing partner, a Tory Taylor, and I said, "In22 addition, in the B.I.S.D. case, you have not answered or23 objected to discovery and it's several weeks late. We're24 spending a lot of time trying to get you guys to follow25 the rules. We will be asking for costs in that motion."


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1 And his answer was, "I'm not handling 2 B.I.S.D. responses." 3 And I wrote, "Well, who is? Who is 4 handling B.I.S.D.? Are you not the managing partner?" 5 And he wrote me back, "I am, but it's small 6 cog." 7 And so, Your Honor, I think if you want to 8 defer on whether they waived or not, once you look at what 9 they gave us to see if they were attempting in good faith10 to try to answer something, because I don't believe that's11 what you're going to see. And so whether they waived12 objections or not, as you can tell, they knew their13 discovery answers were due. It wasn't by accident or14 mistake.15 They filed in their motion for substitution16 that they would not cause delay in this case if I would17 not oppose their motion to substitute. I did not oppose18 their motion to substitute, and the first thing out of the19 box is we're going to cause delay.20 And so when he asked me for a request on21 Thursday and his answers aren't due for another about four22 days, he says in there the reason he needs a request is he23 wants to go out of town. That's what he told me, "I'd24 like to go out of town." Well, I'm not at liberty to give25 that extension at that point because I'm trying to get


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1 this case moving as fast as I can. 2 MR. McKINNEY: I do have a few things to 3 say, Judge. My opponent and I -- this is highly unusual 4 for me in a lawsuit. If we've spoken by telephone once 5 since I've gotten involved in this litigation, I would be 6 surprised. I don't think we've ever conferred by 7 telephone. I don't think we've ever conferred, period. 8 From almost my initial involvement and the 9 TWIA litigation in Galveston, I've been subjected to10 personal attacks and statements that are -- whatever truth11 there might be underlying those statements, seems to get12 stretched to a point where I don't recognize the person13 being discussed or the activity being discussed.14 We have had a number of hard-fought battles15 in the Galveston litigation. My opponent has objected to16 all of our discovery and refused to produce witnesses in17 almost every instance. Our position has been until we18 hear from your side of the case, we really can't respond19 on our side of the case. That battle continues up in20 Galveston. I hope it does not become a spill-over here in21 Cameron County.22 I asked for a simple two-week extension. I23 had travel plans to New York. I had other pending24 matters, and I needed some additional time. I was never25 asked and my opponent knew who was lead counsel in this


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1 case. He did not send me any E-mails. And if he sent an 2 E-mail, if he did because I've never seen it, to my 3 partner saying that we were two weeks late in this case, 4 that was an untrue statement. We've never been two weeks 5 late in this case. We answered within -- well within the 6 two-week extension I requested. 7 And I don't think, with all due respect, 8 that it's proper to determine after hearing an objection 9 on the merit whether the objection's been waived. I think10 it would be the appropriate procedure to simply determine11 whether or not there's been a waiver by asking for two12 weeks and requesting that of the Court and answering well13 within that period. 14 And to address one point made where it was15 stated that I objected to identifying who answered these16 interrogatories, that is not the case. The question17 doesn't just ask who answers -- who answered these18 interrogatories. The question also calls for a19 description of each individual's role in the claim made20 the basis of this suit. And I answered that -- I objected21 to that part of the interrogatory. Certainly we have no22 problem identifying who answered the interrogatories, and23 we did that.24 THE COURT: All right. I think we're at a25 good start here.


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1 MR. McKINNEY: I hope not, Judge. I 2 think -- 3 MR. HINOJOSA: Your Honor, one thing I 4 think the Court needs to know is that the motion to compel 5 is inextricably tied in to their motion for extension. 6 It's the same issues. That's why Mr. Mostyn is saying the 7 Court should hear the motion to compel and then make a 8 ruling on everything because they're all -- it's all down 9 to the issue of the objections and their answers and the10 responses to the discovery.11 THE COURT: All right. Well, let me hear12 the motion to compel and I'll make a ruling on both.13 MR. MOSTYN: Your Honor, can I hand you --14 this is our request and their objections. We also15 attached -- since Mr. McKinney wants to discuss Galveston,16 we attached a $15,000 sanction that was issued against17 them two weeks ago for continued discovery abuse in the18 Galveston matter.19 And so, Your Honor, we'll go to -- if you20 turn the page there, you'll see that we can start with the21 request for production, Your Honor, the second request for22 production. Can I -- I apologize, Your Honor. Can I make23 sure yours is in the same order as mine? I apologize for24 that. Yes, it is. We'll start with the second request25 for production.


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1 MR. McKINNEY: May I point out the second 2 request for production was responded to timely and is not 3 a part of the motion for extension of time? 4 MR. MOSTYN: I agree with that, Your Honor. 5 THE COURT: Okay. 6 MR. MOSTYN: The second request for 7 production, Your Honor, involves -- we represent -- 8 Mr. Hinojosa and I represent Brownsville Independent 9 School District in a case against Texas Windstorm10 Insurance Association. It is a large case. Our estimated11 damages is around $28 million that is owed to the school.12 We have been produced by Texas Windstorm13 Insurance Association in the other litigation that has14 gone on around the state -- I've handled about 5,000 of15 these cases. I'm down to two. This -- three, this one,16 Cameron County Housing Authority, and representing the17 city of League City.18 In the production of those 2 million pages19 of documents, much of it was recently given to us. We20 have found and did find disturbing instances of conduct by21 the TWIA management. Those are attached to my brief. The22 management used Mr. Knarr and Mr. Reggie Warren, who are23 vice-president head of claims and who are the head of24 claims, used terms in their E-mails that may describe why25 this school's claim was never even adjusted admittedly by


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1 the adjuster. The adjuster admits that he never went out. 2 This is inside the E-mails that were turned over to us. 3 In order to have the Court understand, 4 there was about 60 search terms that they were required to 5 run against their E-mail database for the 14 managers. 6 There were things such as adjust, claims handle, words 7 that had to do with claims. 8 In the midst of all of these E-mails, we 9 came across E-mails that are very disturbing. And the10 person sending these E-mails, in particular Bill Knarr, is11 the person who was in charge of the Brownsville12 Independent School District. And he sent E-mails, Your13 Honor, titled such as, "White guilt, White pride."14 He sent E-mails describing, "Immigrants15 should be shot."16 He sent E-mails which have been quoted17 recently about filling the Mexican border with alligators.18 He sent jokes, what they refer to as jokes19 about Mexican tree removal.20 He sent E-mails about drinking and shooting21 illegal immigrants, Mexicans, and heirs because there's22 too many of them in the country.23 He sent E-mails, like number 16, to other24 managers who were on this claim, that are, "Wake up, White25 boy."


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1 He sent E-mails that are attached to our 2 motion, Your Honor, that are -- such as Mr. Orr, who was a 3 claims examiner for TWIA wrote, "Have you noticed if you 4 arranged the letters in the words 'illegal immigrant' and 5 add a few more letters, it spells off," and I'll 6 abbreviate the words, but, "F off and go home, you hairy 7 faced, sandal wearing, bomb making, benefit grabbing goat, 8 F-ing smelling raghead bastards. How weird is that?" 9 Mr. Knarr was sent that E-mail. He then10 forwards it to the head of claims, Mr. Warren, who says11 that the adjuster is having a good day.12 We see E-mails in which an individual, who13 I represented, Alejandro Gutierrez had requested14 displacement coverage for his home that was destroyed in15 Galveston Island. Mr. Knarr tells the adjuster, who is a16 Mr. Nance who had sent many of the -- these E-mails, one17 in particular about how White people are discriminated18 against by Hispanics and illegal immigrants. He sent19 E-mails that said, "Mexican working the system. Mexican20 get no more money for displacement."21 These are the E-mails that the person in22 charge of Brownsville Independent School District sent.23 This person was the vice-president of the company. This24 person was the person in charge of Brownsville Independent25 School District.


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1 We have requested from TWIA that they 2 produce to us all E-mails to or from TWIA management, 3 which are those 14 individuals, from May 2007 to March of 4 2010 that used one or more of the following terms or 5 phrases. 6 And, Your Honor, I want you to know that 7 before I sent the request, I did put at the top in big 8 bold letters that the following words are offensive and 9 that we only repeat them because we have found them in10 TWIA E-mails circulated amongst TWIA's management. Terms11 that we seek are: Arab -- and I do apologize to the Court12 again -- beaner, Hispanic, immigrant, Mexican, nigger,13 Spanish, spic, wetback, White boy, White power, and White14 pride.15 Defense counsel's response to that is, "The16 foregoing is a list of racist terms that people today17 still use; however, none of the terms are related to18 handling insurance claims."19 They go on to say that I have found20 instances of crude or racist, or both, behavior and21 attitudes and TWIA disavows such behavior. If I can22 demonstrate -- identify the use of racist terminology23 under circumstances where an inference -- this was their24 answer before they saw the E-mails that I had in the25 deposition. If I can demonstrate the term racist -- the


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1 use of racist terminology under circumstances where an 2 inference can be drawn that a racist viewpoint played a 3 role in a claims decision, TWIA will agree to a narrower 4 scope of search terms. 5 Your Honor, I want to mark this E-mail as 6 Exhibit 1 so the Court can review it. 7 Your Honor, I want to point the Court to 8 another E-mail I'm going to mark Exhibit 2 in which 9 Mr. Knarr is informed that the Hispanic gentleman in that10 case is a wealthy Mexican, the implication being that we11 can't treat them as we have Mr. Alejandro Gutierrez.12 So these E-mails are clearly relevant,13 clearly that you can draw more than an inference that a14 racist played a role in adjusting these claims. And I15 could go on and on and on about the things that was spread16 around inside of this company by the managers of this17 company and, in particular, the manager of -- who was in18 charge of this claim.19 We have an E-mail, I'll mark this one as20 No. 3. Mr. Knarr sends out to the entire adjusting group21 a joke that he sends out: "A man seeking to join an East22 Texas Sheriff's Department is being interviewed. The23 deputy doing the interview says, 'Your qualifications all24 look good, but there's an attitude suitability test that25 you must take before you can be accepted.'


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1 "Then sliding a service pistol across the 2 desk, he says, 'Take the pistol and go out and shoot six 3 illegal aliens, six meth dealers, and six Muslims, and a 4 rabbit.' 5 "His answer was, 'Why the rabbit?' 6 "He writes back, says, 'Great attitude,' 7 says the sergeant. 'When can you start?'" 8 There's another E-mail I want to mark as 9 No. 4 about illegal immigrants and Hispanics stealing10 Social Security changes. This goes on and on and on. And11 we got these E-mails, Your Honor, accidently because12 somehow they met a search term. And now that we have13 them, we think, unless he's got some proof it would --14 which he did not bring down here to this Court, that this15 would be some undue burden on them, we ask that they be16 ordered to produce those E-mails to us.17 MR. HINOJOSA: Your Honor, and the other18 factor there, one thing Mr. Mostyn already mentioned, this19 is in their company. These are not personal E-mail20 accounts.21 And secondly, Your Honor, this is Hurricane22 Dolly that was a devastating storm here in South Texas,23 and particularly with B.I.S.D. B.I.S.D. has over 50024 facilities, schools, you know, administrative buildings,25 bus barns, et cetera. They were down here, what? Two


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1 days? 2 MR. MOSTYN: One. 3 MR. HINOJOSA: One day to adjust the claim, 4 left, never came back, and sent back a letter saying, 5 "Well, your claim doesn't meet -- your damages don't meet 6 your deductible. So, therefore, we're not going to send 7 you any money." 8 And we had school district buildings all 9 over -- and we met with the superintendent and the10 director of maintenance a few weeks ago. And you've got11 buildings all over B.I.S.D., schools where children are12 going to classes where there's leaking continuously when13 it rains. There's mold occurring as a result of that. 14 And I think the argument, Your Honor, is15 that what other reason would TWIA just completely ignore16 one of the largest school districts in the State of Texas,17 probably the largest school district with the largest18 number of Hispanic students of any other school district19 percentage wise in the State of Texas, other than a bias20 against students and the families that were part of this21 community?22 And that's why they're clearly relevant to23 this litigation, Your Honor. I think that the jury would24 have to see ultimately the attitude and the way -- the25 attitude of these individuals that were in charge of this


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1 particular claim. You compare it to the actual conduct on 2 their part when it came time to doing their obligation -- 3 to performing their obligation, which they had been paid 4 to perform by the school district with the taxpayers -- 5 the taxpayer dollars, of these same individuals that 6 they -- that their managers claim are all these horrible 7 things that you hear and see in these -- in these E-mails. 8 And these E-mails pop up in their files, in 9 their company files. This is not something that we went10 into their accounts knowing that somehow there was11 something there and we searched it because we thought we12 were going to come up with it. These things just popped13 up when we requested the information with respect to this14 case.15 MR. MOSTYN: And, Your Honor, we took the16 deposition of Mr. Borgman, who was the adjuster assigned17 to this case. Mr. Borgman testified under oath that Bill18 Knarr sent a lot of racist jokes that he did not read19 them. He deleted them. I missed the follow-up question20 of, how would you know what they are if you didn't read21 them? But Mr. Borgman said he was sent a lot of them. He22 said that he did not keep them because they were on his23 AOL account. They do exist inside TWIA still. They still24 have the E-mails. They just need to do the search25 criteria for them.


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1 Their adjuster also testified under oath 2 that he did not visit only six out of the 35 campuses, 3 that -- what he testified personally under oath that it 4 was not reasonable that he did not investigate those 5 claims. And he testified under oath as we took him 6 through pictures of damaged building after damaged 7 building that he never stepped foot on, he testified he 8 never stepped foot on. He testified he was the only TWIA 9 adjuster who would have gone out there. He testified that10 there was no investigation, and I showed him pictures of11 the damage.12 I've never seen -- I've done 5,000 of these13 things. I have never seen a large corporate commercial14 entity, not to say a school district, treated in the15 manner in which this case was treated. There are actually16 year-and-a-half gaps in the time that they did nothing on17 this file. The man disappeared, the adjuster did. There18 are E-mails looking for him from a guy named Bill Knarr.19 And then Bill Knarr tells him to just close the file, and20 he closes the file. A year-and-a-half in March of 2010,21 the gentleman closes the file without so much as even22 investigating the loss but other than one or two of the23 campuses.24 And so it was quite a head scratcher to me25 for awhile. What was going on in the Brownsville


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1 Independent School District case? And I've run across 2 this type of outrageous use of language. And the question 3 is, will it lead to relevant -- or likely to lead to 4 relevant -- it goes to whether they did this intentionally 5 or not, and we see it in claims handling with one 6 gentleman already and we have a right to see this if it's 7 more widespread. 8 MR. WORTHINGTON: Judge, I'm sorry. If I 9 might interrupt? Dan Worthington on behalf of10 Mr. Borgman. The motion does not apply to us.11 MR. MOSTYN: It doesn't.12 MR. WORTHINGTON: We answered our13 discovery. Having said that, I do object. I do take some14 disagreement with Mr. Mostyn's characterization of15 Mr. Borgman's testimony. I mean, ultimately the16 deposition --17 MR. MOSTYN: I have clips if you want to18 play them.19 MR. WORTHINGTON: If you'd like to play20 them, that's fine. There were not 35 campuses. There21 were other adjusters who looked at all -- adjusters looked22 at all of the campuses. Having said that, that's not, you23 know -- and I'm not aware of any requests that involve us24 in the case, but think it's -- I did think it was25 important for me state our objection to the


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1 characterization of his testimony. 2 MR. MOSTYN: Let me address that, and I've 3 got -- if the Judge wants to, I've got all the clips here 4 and they're cut up. 5 There was an excess carrier from Travelers 6 for any building above 3,390,000. So Hanna High School is 7 above 3,390,000 for the main campus, and Porter High 8 School is above 3,390,000 for the main campus. But TWIA 9 had the coverage up to 3,390,000. The excess carrier went10 out and looked at some of the campuses, but only five11 percent of the policies would even be -- only five percent12 of the buildings would exceed the 3,390,000, so that13 coverage would kick in.14 In Mr. Borgman's final report, he writes to15 TWIA and says, "Engle Martin won't give me their data.16 Engle Martin will not give me what they looked at." If he17 had gotten what Engle Martin had looked at, he would have18 seen, as he testified in his deposition, buildings that19 exceeded the TWIA deductible.20 He says he spoke to -- in a shocking21 admission, he says, "I spoke --" in his final report, he22 says, "I talked to the adjuster who refuses to give me23 their information. They won't give it to me. After24 repeated requests, they refused to give it to me, but they25 tell me their damage is below deductible."


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1 Not until the deposition did Mr. Borgman 2 learn and figure out that the deductible that the Engle 3 Martin adjuster was referring to was $3,390,000 per 4 building. What is the TWIA deductible? On some of the 5 buildings, on many of the buildings, all the portable 6 buildings, the deductible is $1,000. And so on behalf of 7 TWIA, as Mr. Borgman admitted, no one visited those 8 campuses. 9 And so the reason I bring that up is10 there's got to be some explanation for this type of claims11 handling. And we think -- we've made the allegation of12 what we believe it is, and we have a right to conduct the13 discovery.14 THE COURT: All right. A response?15 MR. McKINNEY: A number of items have come16 up. I received the E-mails that the Court has heard about17 yesterday. I had not seen them before yesterday. I've18 had a chance to read them once.19 There is some background that the Court20 might find in interest. Certainly the E-mails say what21 they say. For what it's worth, it may not be worth much,22 some of the E-mails are certainly over the line in terms23 of being racist. They clearly are. Others I would say24 are just in poor taste, but that's all subjective. What I25 think doesn't matter.


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1 What I would like the Court to know, first 2 and foremost, is that when Dolly and Ike hit back in 2008, 3 the TWIA management, let's call that Group A. Group A was 4 some folks who ran TWIA and were confronted with two major 5 catastrophes virtually back to back. And it turned out 6 that in addition to other issues, such as Bill Knarr's 7 issues with people who aren't White, handling the size of 8 the losses was beyond the skill set and capacity of 9 Group A.10 Sometime in the 2010, 2011 time frame, by11 the end of that time frame, all prior TWIA management,12 everyone in Group A had either been retired, terminated,13 or had passed away. In Bill Knarr's case, he's dead. So14 we're not going to be able to take his deposition and find15 out what he meant, and what he did, and what he said and16 tie all that together.17 In no way, shape, or form does TWIA ratify,18 adopt, what have you, the kind of crudity that I saw19 yesterday and has been called to the Court's attention20 today. And our position in responding to the discovery21 request is that we would agree to a narrower, a narrower22 scope of discovery if evidence could be brought forward23 that issues of racism have played a role in the claims24 handling decision in this case.25 In my view, the fact that Bill Knarr was


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1 involved in this case and the fact that Bill Knarr is or 2 was a racist, I think that puts us on the bubble, maybe 3 yes, maybe no, that racism played a role in how this claim 4 was handled. I think the claim-specific E-mail such as 5 they are does not show that. 6 But leaving that aside, what I would 7 propose is that the document request being requested be 8 limited to E-mails sent and received by Bill Knarr and by 9 Reggie Warren, the two people who have been identified as10 management level people who have played a role in this11 case.12 If we limit it to the people who played a13 role in this case, received by, sent to, then we are14 limiting what would otherwise be a fishing expedition. We15 are limiting the scope and discovery to the individuals16 who may have played a role. I think that's fair.17 That's dealing with the discovery request.18 There's one other matter I'd like to address before we19 move on, and that is the adjustment that was done on the20 Brownsville I.S.D. case. What happened was Steve Borgman21 was hired by a company that was then called, I believe,22 GAB Robins?23 MR. WORTHINGTON: Correct.24 MR. McKINNEY: Was hired by TWIA as an25 independent adjuster, but it's a nondelegable duty. So


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1 TWIA is on the hook for whatever Mr. Borgman did or did 2 not do. So what I'm getting ready to say doesn't mean 3 we're trying to walk away from or not take responsibility 4 for what happened, because we have -- we are going to take 5 responsibility for everything that happened. 6 Steve Borgman got to Brownsville I.S.D. 7 along with a team of adjusters from a company called Engle 8 Martin who were hired by Brownsville's excess carrier. 9 And supposedly these adjusters agreed to divide up the10 properties that they were told had been damaged by11 Hurricane Dolly.12 Steve Borgman went out and supposedly13 looked at six properties. The Engle Martin people went14 out and looked at 30 properties or thereabouts. I'm not a15 hundred percent clear on the numbers. And verbally,16 according to Steve Borgman, the Engle Martin people17 reported to Borgman that all of the damage was below18 deductible. Borgman testified in his deposition that he19 believed that they were telling him -- that Engle Martin20 was telling him that the damages were below TWIA's21 deductible.22 Borgman found out the day before his23 deposition, because by that time the Engle Martin file had24 been obtained, he found out that the Engle Martin25 adjusters were referring to the Engle Martin deductible,


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1 3.3 million and change, not the TWIA deductible, sometimes 2 a thousand dollars but never more than one percent of the 3 property value as I understand it. 4 So there was -- there were a number -- 5 there were breakdowns in communication and a methodology 6 was used by Mr. Borgman that TWIA agrees did not meet 7 industry standard by a considerable margin, all right? We 8 do not expect to be able to successfully defend the 9 adjustments that were done on any of the 36 properties in10 this case.11 And I am going to be submitting a proposal12 in writing to have each of those properties looked at,13 estimated, and if -- you know, if we have local folks or14 folks that have done work for Browning Independent School15 District for built schools or repaired schools, we'll come16 out and do estimates.17 My understanding is that TWIA will -- they18 have to do their due diligence because they're under19 supervision by the Department of Insurance. But assuming20 that those estimates are in line with prevailing charges21 in the area, TWIA will pay those estimates and a22 23 percent penalty going back to essentially the date of23 the adjustment, which is what's owed under the statute.24 We did not do this the way it should have25 been done, and we do intend to make it right. And we do


30

1 not intend to ask for a release for making it right. We 2 do ask that whatever we pay be credited toward any 3 judgment that the jury returns. But we agree that 4 Brownsville I.S.D. should receive compensation as quickly 5 as we can make that happen in a reasonable and prudent 6 fashion. 7 So that's our position on the adjustment. 8 That's our position on the document request. And I think 9 that wraps up what I wanted to say on these issues, Your10 Honor.11 MR. MOSTYN: Your Honor, I appreciate their12 new position. That's the first time I have heard. This13 case has been on file for a year. And when Mr. McKinney14 says he hadn't seen the E-mails, well, they gave me the15 E-mails. And I assure you if I would have gotten a16 request for production that says E-mails that I was17 representing contained these terms, I would have gone and18 looked at them before I objected to giving them to me.19 And their objection was not whether Mr. -- I can prove. I20 don't have to prove Mr. Knarr is a racist on the B.I.S.D.21 case to get discovery. I need discovery to prove it. And22 I demonstrated to this Court that he had those attitudes.23 Their original -- because they had -- what24 they told you is true. They've never looked at what they25 gave me. Never have, because when they first objected --


31

1 THE COURT: Well, he's agreeing that he 2 would turn that over to you if it's limited to those two 3 individuals. What's your -- 4 MR. MOSTYN: My response to that is there's 5 additional individuals in the claims activity. First of 6 all, there is a -- Gene Kounse is in there. 7 THE COURT: To this claim? 8 MR. MOSTYN: For this claim, yeah. There's 9 a Ms. Robinson, a Mr. Todd. So there's additional10 individuals, but our allegation, Your Honor, is that in11 one of those E-mails I gave you, Mr. Knarr would circulate12 these to the entire claims department. So this whole13 culture was there.14 And so not only that, we also know that15 TWIA's claims files often are lacking, as this one is --16 this is the entire activity log for 800 and something17 campuses -- are often lacking the people who worked on18 there. So we don't want every employee, but we do want19 every manager that was there during that time.20 MR. HINOJOSA: Well, Your Honor, and what21 does it hurt them? I mean, what we want to know is -- I22 mean, we've got clearly examples of where the management23 of this organization is engaged in ultra, ultra racist24 attitudes. I mean, we've got a whole bunch of other25 E-mails that the Court would be appalled at when you


32

1 looked at them. What is it going to hurt them to give us 2 this information; and then at the time of trial, the issue 3 of whether or not they're admissible, that can be argued 4 at that point? But we need to figure out exactly what 5 they've got, Your Honor. 6 THE COURT: All right. The motion will be 7 granted. 8 MR. MOSTYN: Your Honor, we have a 9 second -- the next request for production is in these10 E-mails, we discovered that they kept quality control11 files on each adjusting company. And GAB Robins was the12 adjusting company on this case. So we asked for the GAB13 Robins quality control file during this time period.14 MR. HINOJOSA: Your Honor, before he goes15 into that, can we -- we offered those documents,16 Exhibits 1 through 4, and here's also Exhibit No. 5. Can17 we have those admitted, Your Honor, for purposes of the18 record?19 MR. McKINNEY: Pardon me? I'm sorry. I20 was looking --21 THE COURT: They're offering 1 through 5,22 exhibits.23 MR. McKINNEY: I have no objection, Your24 Honor.25 THE COURT: They'll be admitted.


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1 (Plaintiff's Exhibit Nos. 1 through 5 2 admitted) 3 MR. MOSTYN: That's fine. Thank you. 4 There's a quality control file. We have 5 E-mail examples of where whenever GAB Robins would make 6 a -- would make an error or have a problem with an 7 adjuster, that Mr. Knarr would say, "This is going to the 8 quality control file." 9 Let me mark this as Exhibit 6. It's just a10 discussion of how poor the adjustment quality is for GAB11 Robins, and it says it's going to go to the quality12 control file. So we sent a very specific request for13 production and I said, "Give me a copy of the quality14 control file for GAB Robins," which is the company that15 adjusted this claims.16 One of the allegations that we have made is17 that the mishandling of this claim was done knowingly,18 which is actual awareness of harm or falsity of the19 handling of the claim. They have a file on GAB Robins20 that shows that GAB Robins does not do a good job. I21 asked for the file during this time, and they said they22 won't give it to me if it's not related to Brownsville23 I.S.D. Well, if someone has four D.W.I.s before they get24 the fifth one and the four prior ones were reported to me,25 they knew that this company was doing a poor job before or


34

1 during the handling of this claim. I want the quality 2 control file. 3 THE COURT: All right. A response? 4 MR. McKINNEY: Judge, what we said is we 5 think it's overly broad. We think it's irrelevant and a 6 fishing expedition because we have to make those 7 objections to preserve our record. But subject to the 8 objection, if such file exists, we said we'll produce it 9 under separate cover. And we're looking for it; and if we10 have it, we'll produce it.11 MR. MOSTYN: Well, then I'd like their12 objection overruled. I don't have an answer that says you13 will produce it, but --14 THE COURT: All right.15 MR. McKINNEY: I'm looking at my response16 that says, "To the extent such a file exists and is17 related to Brownsville I.S.D. and subject to any presently18 unknown privileges, it will be produced under separate19 cover."20 MR. HINOJOSA: That's exactly what we're21 saying. They're just saying -- they put the qualifier on22 there, you know. We just want the quality control file on23 this gentleman.24 THE COURT: All right.25 MR. McKINNEY: Well, it ought to relate to


35

1 this claim. 2 MR. MOSTYN: It does relate to this claim. 3 The fact that if you knew that your adjusting company was 4 doing a poor job, my question would be why would you 5 assign it to 877 separate school campuses to adjust? And 6 we see the result, the admitted result that it was 7 completed messed up and mishandled. My question now is, 8 did you have a reason to know that that was going to 9 happen? And that is in the quality control file.10 MR. McKINNEY: If there is a quality11 control file that in any way relates, directly or12 indirectly, top side or bottom, to the handling of this13 claim and if we don't have some privileged document in14 there -- and we'll produce a privileged log if we do -- we15 will produce the quality control file.16 I mean, the reason why I don't think it's17 going to be relevant in this practical matter is we18 assigned it to Borgman in July of 2008. And almost19 certainly, any quality control file is going to be20 Ike-related, which is going to be much later in time than21 Dolly which preceded all of this. So I don't think22 there's going to be a quality control file that's, you23 know, time-wise even relevant to the case. But I'm24 telling you, if we've got one, you'll have it.25 MR. MOSTYN: Well --


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1 MR. McKINNEY: I'm saying this in open 2 court. 3 MR. MOSTYN: I understand, but, 4 Mr. McKinney, the Brownsville I.S.D. claim was not closed 5 until March of 2010. And during that time, the continued 6 handling of the file was by GAB Robins. The Ike quality 7 control file that he refers to, in which one of the 8 E-mails I handed you what he calls the Ike one, to me it's 9 by a company, Ike occurred in 2008. So at any point10 during the time of the handling of this claim, if it came11 to their attention that this company was not doing proper12 adjustment, we're entitled to that file.13 THE COURT: All right. I'll grant the14 request. 15 MR. MOSTYN: Your Honor, the next -- you're16 going to see my frustration here. The next set of17 information that we have to go through is their18 interrogatory answers. In interrogatory number 1, Your19 Honor, I asked them in interrogatory number 1, "Identify20 all persons --" 21 THE COURT: Okay. Let me stop you there.22 I assume you've already discussed this with counsel?23 MR. MOSTYN: I wrote him several letters24 and asked them to withdraw their objections to which I got25 no response.


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1 THE COURT: Okay. I assume the 2 objections -- you're still objecting to those responses? 3 MR. McKINNEY: Judge, I am, and -- 4 THE COURT: Okay. Let's proceed then. I 5 just wanted to make sure. 6 MR. MOSTYN: And -- 7 MR. McKINNEY: Just for the record, we 8 don't -- in this litigation, there isn't any sit down and 9 work things out conversation. You file your -- if a10 defendant files objections, there's a standard boilerplate11 letter that says, "All your objections are without merit.12 Please withdraw them or we will file a motion to compel13 and seek costs." So there's not any discussion. There's,14 "Drop all of your objections, or we'll see you in court,"15 and then we come to court.16 THE COURT: Well --17 MR. McKINNEY: So that's the history of how18 we get here.19 THE COURT: So my question is then, it20 wouldn't do any good if I said for you all to go out in21 the hall and look these over and see if you can work22 anything out?23 MR. MOSTYN: Your Honor, what I would like24 to do is go over the first two and then maybe we should go25 out.


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1 THE COURT: Okay. Well, let's do that. 2 MR. MOSTYN: Just as an example, because I 3 don't want to -- I know this Court has many things to do. 4 Number 1, I asked for: "Identify all persons, address, 5 including job titles, dates of employment, and description 6 of each individual's role in the claim made the basis of 7 this lawsuit, if any, for all persons providing 8 information for the answers to these interrogatories." 9 So if the person answering the10 interrogatories -- I want to know for all persons11 providing information to the answers in interrogatories,12 their name, the address, their job title, and any role13 they provided in the claim.14 They objected, told me it was vague and15 ambiguous, unduly burdensome. And despite what he told16 you about he went ahead and gave me names, there are no17 names. It says, "Subject thereto, TWIA directs you to the18 claim file which will be or has been produced under19 separate cover. The claim file contains the names of20 individuals acting for TWIA and the independent adjuster,21 Mr. Borgman, who plaintiff has sued."22 I need them to tell me who answered the23 interrogatories and if they played a role or not. There's24 no verification on these interrogatories, so I don't know25 who might have verified them. But they won't give me a


39

1 person's name. And they direct me to a claim file, which 2 they have admittedly stated in other cases and the 3 adjuster stated in this case is not complete. So tell me 4 who's answering the interrogatories and tell me their 5 name. 6 Let me just go to the second: "Identify 7 all persons or entities who handled the claim made the 8 basis of this lawsuit on behalf of defendant Texas 9 Windstorm Insurance Association and their last known10 address if current address is unknown." They objected.11 They said that was vague and ambiguous in the meaning of12 handle the claim.13 This goes on and on and on. There are 2014 something interrogatories, not a single answer.15 MR. McKINNEY: Excuse me. There was an16 answer to that very one. And what we said was we propose17 resolving this objection by an agreement to identify the18 decision makers with respect to claims adjustment and19 payment or other resolution.20 And here's why we're taking that position,21 Judge. It's not just because I have the time to sit22 around and think of objections and I want to fly down to23 Brownsville on Wednesday nights, particularly this24 Wednesday. It was -- just yesterday was my 37th25 anniversary.


40

1 Whenever we give the names of everybody who 2 cut a check or filed a document or something like that, we 3 might have 18 or 20 names of clerical people and 4 administrative people who were part of the claims handling 5 process. We get a request for their depositions, and we 6 have to go find their last known addresses. And we 7 have -- I can dig around in some of the Galveston cases 8 and find letters where 18 or 20 people have been requested 9 from TWIA for a -- it just goes on and on.10 And so what we propose is the relevant11 inquiry, at least for starters, is who were the decision12 makers, who made the decision to do what on these files?13 We can identify them. And if that'll discharge our14 obligation for the time being, we're happy to do that.15 MR. HINOJOSA: Your Honor, this is a16 $30 million claim. I mean, this is a $30 million claim.17 If they don't have time to go look at those things because18 it's too much work, that's absurd. This is a case where19 they should have given this right off the bat. That kind20 of a response, Your Honor, is a response that has no21 bearing on the seriousness of this particular case.22 It is obvious that we're entitled to know23 anybody's name who touched this claim and their address24 and where they're at now because this happened a long time25 ago, and they may not be around. And if they need to go


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1 search other files and find out exactly where they're at, 2 then go do it, Your Honor. 3 But this kind of a response is absurd, Your 4 Honor. They propose resolving the objection by an 5 agreement to identify the decision makers with respect to 6 claim -- what the hell does that mean? You know, I mean, 7 just give us the names and addresses. Tell us what they 8 did, and we'll decide whether we want to take their 9 deposition.10 But this is the kind of stuff why we're so11 frustrated in dealing with these folks, Your Honor, is12 that this is basic hornbook type of request that they13 should provide it and why we're here is beyond us.14 MR. MOSTYN: Your Honor, you're holding15 right now in front of you whether he waived his objections16 or not, which would save this Court some amount of time.17 But I'm happy to go confer with him and try to get this18 resolved and come back in here so we don't waste any more19 of your time.20 But an answer that says, "We hope to make21 an agreement to resolve this in the future," this is --22 I've done 20,000 first party cases. I've never had23 anybody object to telling me who worked on the file.24 THE COURT: All right.25 MR. WORTHINGTON: Judge, if I might


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1 interrupt? As much as the motion to compel is, you know 2 interesting, we're here today only for the trial setting. 3 And before the Court sends everyone out, I was simply 4 going to ask if the Court might take up the trial setting 5 motion so that -- because I'm not here for -- I have 6 nothing to confer about. 7 MR. MOSTYN: The plaintiffs agree with 8 that, Your Honor. 9 THE COURT: First of all, while it's still10 fresh on my mind, let me go ahead and grant11 interrogatories number 1 and 2.12 They need a trial setting, so do you want13 to give them some dates?14 COURT COORDINATOR: Yes, sir. I've got15 them here ready.16 THE COURT: All right. Hand them to the17 gentlemen over there. You've got some dates there you can18 work off of, and then --19 MR. HINOJOSA: We've talked about the20 dates, Your Honor. We -- we've got -- let me tell the21 Court we have a basic fundamental problem here, Your22 Honor. This is an old -- an old incident, an old storm in23 2010. There was a lot of damage done to the schools.24 Some of it has been repaired, some of it has not been25 repaired, some of it needs to be repaired immediately but


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1 the school -- because of what happened in the last 2 legislative session before this one, all the funding cut 3 from the schools, there just wasn't any money to fix them. 4 And so what we're concerned about, Your 5 Honor, is that hurricane season starts in, I believe, June 6 of this year. If another -- and we're due. South Texas 7 is due. Our concern is that if this case is tried after 8 the end of May of this year, we may be put in a situation 9 where we will have another storm that will affect the10 school district and will affect our ability to determine11 what damages were caused by what storm in this -- in these12 schools, in these 700 plus buildings of the school13 district.14 So we've asked for a trial setting prior to15 the end of May, and we just can't get an agreement from16 them. So we're coming to the Court. If the Court can17 just set the trial and let us begin the trial sometime18 before the end of the -- before the end of the school year19 the end of May, and then we'll get ready. We'll be coming20 back if we have other discovery issues like this, but21 we'll wrap it up and get it ready for trial by that time,22 Your Honor.23 MR. WORTHINGTON: Judge, if I might24 respond? The school district didn't file suit until25 four-and-a-half years after the original storm. I mean,


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1 the suit was filed in December of 2012. You've heard 2 testimony about hundreds and hundreds and hundreds of 3 buildings involved. Somebody used the number 800. I 4 think there are 28, 26, 27 to 28 campuses. I mean, the 5 school district waited to file the suit. 6 It seems to me fair that we have enough 7 time to at least do the discovery that's required in a 8 case where you're alleging damage to 800 buildings, and 9 May is simply too quick. We were going to ask for the10 fall, September, a few extra months to give us hopefully11 enough time to do what needs to be done to fairly defend12 the case. 13 But I think you've heard from some of the14 discovery requests today that this is a case involving --15 I think I may have produced 35,000 pieces of paper, more16 or less. And it's -- this is not a case that you can17 fairly defend in a few months.18 And again, the district waited four and a19 half years from the date of the storm, over two years from20 the date that they claim the last decision was made21 regarding the claim, which I believe was September in22 2010. I believe that's right.23 MR. MOSTYN: Well, it's been on file for a24 year.25 MR. WORTHINGTON: That's true.


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1 MR. MOSTYN: It's been on file for a year. 2 So they're asking you to give them about a two-year window 3 setting. That's too long. We're -- it sounds difficult, 4 but if they're going to come here and admit what they 5 just -- well, they just admitted most of my case. So a 6 lot of it's gone. We will -- we're ready to go to trial 7 in May. There's absolutely no doubt that you can get this 8 case ready to go by May. 9 They have -- if they haven't done anything10 on their side -- we're fully inspected. We have all11 engineer reports. We have all estimated reports. We have12 completed outside of this case much of the discovery13 already. And so we need, you know, a handful of that, but14 we're ready.15 MR. WORTHINGTON: Judge --16 MR. McKINNEY: Just a minute. I have --17 MR. WORTHINGTON: -- they've had several18 years to prepare their case, and then they file it and say19 let's go to trial quickly on this case involving20 thousands --21 MR. HINOJOSA: No, Your Honor.22 MR. WORTHINGTON: It's not fair, Judge.23 It's not fair.24 MR. HINOJOSA: If I may, Your Honor? Come25 on. These guys had an obligation to do what they were


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1 supposed to do. 2 THE COURT: All right. I've heard enough 3 argument. Give me a setting in June. 4 MR. McKINNEY: Judge, may I -- 5 THE COURT: Go ahead. 6 MR. McKINNEY: -- be heard briefly on that 7 one point? 8 THE COURT: Sure. 9 MR. McKINNEY: We just heard that10 apparently there are estimators' reports and engineering11 reports and whatnot. I sent out a request for disclosure12 and got responses on November 28th, less than two weeks13 ago. At that time, what I learned two weeks ago is they14 have not determined who their experts are and they don't15 know what their damages are.16 So what we're going to see in this case and17 the reason why -- I appreciate the June setting. June18 will not be enough time. We will not be able to get all19 of the reports that we need and the time to look at each20 of those reports to see if there are buildings other than21 the buildings that we thought were at issue that are22 involved in this case, to get those buildings looked at23 and analyzed and reported on by our experts.24 I've been down this road before in the city25 of Galveston with only 188 properties as opposed to


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1 580-and-some-odd properties. And it took 15 months for 2 appraisers to complete their appraisal in the city of 3 Galveston on a number of buildings, about 25 percent of 4 the size of the number of buildings involved in this case. 5 A second issue is, Judge, June is the 6 vacation month at the McKinney house. I don't know if 7 that's a big deal or not for the Court. That's the only 8 month that I don't have any trial settings in. I have 9 filed a vacation letter every year for the last ten years10 in June. I can try this case in July. I can try it in11 August. I can try it in September, October, November, any12 time the Court wants.13 We didn't make our vacation last year for14 other reasons. It's a personal plea. I don't like having15 to do that, but we can't be ready -- we can't be ready by16 June anyway. And I think a September setting is what17 makes the most sense. We'll still be working ourselves to18 death getting ready by September. 19 And hopefully, hopefully -- and I'm serious20 about this -- within the next 60 days, we may well have21 taken care of most of the buildings that were discussed in22 the Borgman deposition. I mean, we do intend to get out23 there and look at those. 24 And if we can get good estimates -- and25 here's where the brunt is going to come. I don't want


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1 opposing counsel's estimators. They are not people who 2 have done work for Browning I.S.D. before. They are 3 lawsuit estimators, and they come in with numbers that are 4 two and three and four times what the prevailing rates 5 are. 6 If Browning I.S.D. can identify its 7 preferred contractors who have a history of work for 8 Browning I.S.D. and have those companies come out and 9 inspect and give estimates for repairs, we'll do a brief10 due diligence examination of those estimates; and I am11 highly confident that TWIA will pay those, plus the12 penalty that I discussed.13 MR. MOSTYN: Your Honor, can I just briefly14 respond? We have a lot of consulting experts, and we'll15 designate. We're asking for a shorter period to get our16 testifiers earlier. We -- the appraisal process that17 Galveston -- Mr. McKinney is the 26th lawyer to defend18 TWIA, 26th in this litigation. The appraisal process in19 Galveston did not start until July.20 But let me tell you the interesting thing.21 His appraiser, the umpire, and our appraiser all agree22 that the city of Galveston was owed $16 million. And that23 was a month ago, and they still refuse to pay it. On the24 city of League City, this 60-day quick process, their25 appraiser agreed they owe us a million. Our appraiser


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1 said it was 3.7. The umpire agreed it was 3.5 million. 2 That was a month-and-a-half ago. They continue to refuse 3 to pay us. So their -- I have little faith that we're 4 going to have a quick resolution, you know. Mr. McKinney 5 wants not to interfere with his June vacation. We are 6 available, as we requested, in May. 7 MR. HINOJOSA: Your Honor, also if it's 8 between his vacation and the school children of 9 Brownsville, Your Honor, he should be trumped.10 MR. McKINNEY: I agree with that. If --11 I'm throwing that out there because I think that's just an12 additional --13 THE COURT: All right. Let me hear from14 the other defendants.15 MR. CARRION: Judge, Albert Carrion for16 Reggie Warren. We have a conflict in May with five trial17 settings and administrative trials for Danny Smith who's18 counsel for Reggie Warren in these cases. So we would19 like it to be other than May.20 THE COURT: Okay.21 MR. MICHAEL RODRIGUEZ: Your Honor, just to22 underscore Mr. Worthington's argument earlier, you heard23 from Judge Hinojosa this is a $30 million claim. They24 want to force us to trial in four months basically on a25 $30 million claim with 800 buildings that need to be


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1 inspected. And the discovery that they've been asking you 2 for, these E-mails, they don't have anything to do with my 3 client. The horrible nature of those E-mails has nothing 4 to do with my client. And I think there's a dual purpose 5 for bringing those things up to engender anger with 6 respect to this Court and their subsequent asking for a 7 jury trial. We need time to work the case properly. 8 MR. WORTHINGTON: And by the way -- 9 MR. MICHAEL RODRIGUEZ: September or10 October is a good time to set the case for trial, Your11 Honor. It's a very large case, as Judge Hinojosa12 indicated. We need time to do discovery.13 MR. HERNANDEZ: And, Your Honor, with14 regard to putting the timing into context, again, like15 Mr. Worthington said, this lawsuit wasn't filed until four16 years after the incident. Nothing occurred until we were17 brought into the case because at the same time that they18 were filing this lawsuit, they were disqualifying TWIA's19 prior attorney in the Galveston case and had moved the20 court to incorporate this case into -- actually, it was a21 different -- the case was in Galveston, but Galveston22 wasn't the party.23 They had moved also to certify a class that24 included this case up there. So for all intents and25 purposes, since December of last year, TWIA's attorney has


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1 been handcuffed by these folks because he was disqualified 2 in all his litigation. So it wasn't until Mr. McKinney 3 substituted in in October that they even sent out their 4 first set of discovery, written discovery. 5 So for all intents and purposes, this case 6 is two months old as opposed to a year old. And it's just 7 too big to rush to trial. 8 MR. MOSTYN: Your Honor -- 9 MR. HINOJOSA: The June date is acceptable10 to us, at the beginning of June, Your Honor.11 THE COURT: Okay. Somebody was going to12 say something?13 MR. MOSTYN: There was never a motion to14 disqualify. This case was never included with Galveston.15 MR. HERNANDEZ: I've got the pleadings16 right here.17 THE COURT: All right. After hearing18 everybody's argument, the Court will set it for trial the19 first week of August.20 MR. MOSTYN: What about vacation letters,21 Your Honor? Can we get a waiver of vacation letter? I22 don't know how you all do vacation letters.23 MR. HINOJOSA: We want to make sure nobody24 files vacation letters. Apparently in other25 jurisdictions, the moment that the courts allow lawyers to


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1 have a right to have a vacation letter -- 2 THE COURT: All right. Don't worry. I'm 3 finished with my vacation by that time. 4 MR. McKINNEY: I will not file a vacation 5 letter. TWIA will not file a vacation letter in June. 6 THE COURT: All right. First week in 7 August. 8 COURT COORDINATOR: The first week, jury 9 week that we have is August the 11th, Your Honor.10 THE COURT: Is that Monday, jury selection?11 COURT COORDINATOR: Yes, sir, that's jury12 selection. It is a new jury.13 THE COURT: August 11th for merits and14 announcements? 15 COURT COORDINATOR: August the 7th. 16 THE COURT: August 7th for announcements.17 Both at 8:30.18 MR. WORTHINGTON: Thank you, Judge.19 THE COURT: August 7th at 8:30 for20 announcements; August the 11th, 8:30, for merits.21 MR. EDUARDO RODDRIGUEZ: Thank you, Your22 Honor.23 MR. MICHAEL RODRIGUEZ: May we be excused?24 THE COURT: You're excused.25 MR. EDUARDO RODDRIGUEZ: We're not involved


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1 with the rest of the litigation. 2 THE COURT: I understand. And y'all can go 3 in the hallway and discuss other interrogatories. 4 END OF PROCEEDINGS 5 6 7 8 910111213141516171819202122232425


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1 THE STATE OF TEXAS: 2 COUNTY OF CAMERON: 3 CERTIFICATE OF COURT REPORTER 4 I, PAM L. ESQUIVEL, Official Court Reporter in and 5 for the 107th Judicial District Court of Cameron County, 6 State of Texas, do hereby certify that the above and 7 foregoing contains a true and correct transcription of all 8 portions of evidence and other proceedings requested in 9 writing by counsel for the parties to be included in this 10 volume of the Reporter's Record, in the above-entitled and 11 numbered cause, all of which occurred in open court or in 12 chambers and were reported by me. 13 I further certify that this Reporter's Record of the 14 proceedings truly and correctly reflects the exhibits, if 15 any, admitted by the respective parties. 16 WITNESS MY OFFICIAL HAND on this the 17th day of 17 December, 2013. 18 /S/ Pam L. Esquivel PAM L. ESQUIVEL, Texas CSR, RMR, CRR 19 Official Court Reporter 107th District Court 20 974 East Harrison Street Brownsville, Texas 78520 21 (956) 550-1470 Certificate No. 2369 22 Expiration Date: 12/31/14 23 2425


brownsville isd v. twia court transcript

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