For years JG Tax Group has been attempting to educate the public of the dangers of working with a tax resolution firm. Read on below to see how one of the largest in the industry, TaxMasters, has been charged with unlawful conduct and deceptive trade practices.
Houston-based "Tax Resolution" Firm Charged With Unlawful Conduct, Misleading Customers
Texas Attorney General files enforcement action against TaxMasters, Inc.; cites nearly 1,000 complaints about defendants' conduct and business practices
HOUSTON - Texas Attorney General Greg Abbott today charged Houston-based TaxMasters, Inc., and its chief executive officer, Patrick Cox, with multiple violations of the Texas Deceptive Trade Practices Act and Texas Debt Collection Act.
According to the state's enforcement action, the defendants unlawfully misledcustomers about their service contract terms, failed to disclose its no-refunds policy, and falsely claimed that the firm's employees would immediately begin work on a case - despite the fact that TaxMasters did not actually start to work on a case until its customers paid in full for services, even if that delayed response meant taxpayers missed significant IRS deadlines.
In the midst of a national economic downturn, TaxMasters used a nationwide marketing campaign to offer services for distressed taxpayers who needed help dealing with the IRS, Attorney General Abbott said. A state investigation and nearly 1,000 customer complaints indicate that the defendants routinely misled customers about the nature of their tax resolution service agreements - and worse, attempted to enforce those improper agreements through unlawful debt collection tactics. The state's enforcement action seeks to prohibit the defendants from continuing to violate the law and seeks restitution for the financially struggling taxpayers who were harmed by the defendants "unlawful conduct."The defendants advertise a tax resolution service for federal taxpayers who have received notice from the IRS of an audit, garnishment, lien, levy or tax deficiency. Citing a self-styled "national advertising campaign" and high-profile "endorsements," TaxMasters purports to have "one of the most effective tax relief teams in the tax representation business." However, a state investigation - and nearly 1,000 complaints submitted to the Office of the Attorney General and the Better Business Bureau of Houston - indicate that the defendants have unlawfully misled their customers and failed to disclose material facts about their service agreements.
TaxMasters' advertisements encourage taxpayers to call its toll-free number for a "free consultation" with a "tax consultant." Court documents filed by the state indicate that callers are not connected to an employee qualified to give tax advice, but rather with a TaxMasters salesperson who recommends a "solution" for between $1,500 and $9,000 or more.
According to court documents, many callers were offered an installment plan so that they could pay the defendants' fee over a specified period of time. However, callers who asked to see written terms and conditions prior to making a payment were informed that a credit card or bank account number is necessary to generate a written TaxMasters service contract. As a result, TaxMasterscustomers were unaware and the defendants' personnel did not have a practice of disclosing multiple aspects of the TaxMasters service agreement that were harmful to taxpayers.
For example, the defendants did not disclose that all customer payments submitted to TaxMasters are non-refundable. Because customers were not provided written contracts and sales personnel did not reveal the no-refunds policy, customers did not know that they would not be able to recover any installment payments they submitted to TaxMasters - even if they ultimately decide to cancel before TaxMasters actually did any work on their tax case.
The state's enforcement action also cites TaxMasters for failing to reveal that it would not begin work on a case until all installment payments had been remitted and the entire fee was paid. Multiple complaints indicate that customers entered into an installment agreement with the understanding that TaxMasters would immediately begin work on their case only to discover later that no action was taken. Customers often learned that there was a problem when they received a notice from the IRS indicating that an important deadline had been missed or that additional fees and penalties had accrued.
Court documents filed by the state also indicate that the defendants failed to disclose TaxMasters' requirement that customers pay the entire service fee - even if they opt to cancel their contract. Because customers are not provided a written contract, they were not properly informed that agreeing to make a single payment over the telephone obligated them to pay the entire fee quoted by sales personnel. Further, not only did TaxMasters attempt to obligate its customers to a fee in the absence of a signed contract, the defendants used unlawful debt collection tactics to enforce the unauthorized obligation.
According to the state's enforcement action, the defendants not only failed to disclose material terms and conditions governing its services, but also failed to properly provide the "tax resolution" services that were advertised. Customer complaints obtained by the Attorney General's Office cite TaxMasters for failing to contact and consult with the IRS on the client's behalf; failing to appear on the client's behalf at an IRS audit or hearing; failing to postpone or stop a wage or bank account garnishment; and failing to stop a levy or lien against a client's property.
When customers who were unhappy with the defendants' services sought refunds, TaxMasters refused to return the customers' money. Court documents indicate TaxMasters not only refused to honor refund requests, it also pursued debt collection efforts against clients who cancelled their contracts. The state's enforcement action charges TaxMasters with unlawfully threatening to pursue customers in Harris County courts, even if those customers did not reside in the county. Under Texas law, entities seeking to enforce a consumer contract can only do so in a county where the agreement was executed or where the consumer resides.
The state's enforcement action is seeking restitution for each TaxMasters customer who was financially harmed by the defendants' unlawful conduct. In addition, the state is seeking civil penalties of up to $20,000 for each violation of the Texas Deceptive Trade Practices Act.
The following is the product of an OCR scan of an original document. With this in mind, the content may not be 100% consistent with the original.
Filed
10 May 14 P4:31
Amalia Rodriguez-Mendoza District Clerk
Travis District
D-1 -GV-10-000486
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 14, 2010
Travis County. Courthouse
1000 Guadalupe Austin, TX 78701
Re: Cause No. D-1-GV-10-000486; State of Texas v. Taxmasters, Inc., TMIRS
Enterprises, LTD., TM GP Services, LLC, d/b/a Taxmasters, and Patrick R.
Cox, Individually; In the 200" Judicial District Court of Travis County,
Texas.
To whom it may concern:
On May 14, 2010, Judge Wisser signed a Temporary Restraining Order in the above
referenced case. Please allow this letter to serve as a request to issue an appropriate Writ of
Injunction for service on the Defendants. Please let us know when the writs are ready so that we
can pick them up for service.
If you have any questions please contact me at the number listed below.
Sincerely,
Bruce Griffiths
Assistant Attorney General
Office of the Attorney General
Consumer Protection Division
300 W. 15th Street Austin, TX 78701 512.475.4184 - direct line
512.477.4544 - fax bruce.griffithsoag.state.tx.us
POST OFFICE Box 12548, AUSTIN, TEXAS 78711-2548 TEL: (512)463-2100 WwW.OAG.ST1TETX,US
An Equal employment opportunity employer Printed on Recycled Paper
Letter 4223 (Rev. 4-2007)
Catalog Number: 50072A
No. D-1-GV-10-000486
THE STATE OF TEXAS,
Plaintiff
V.
TAXMASTERS, INC., TMIRS ENTERPRISES, LTD., TM OP SERVICES, LLC, DIE/A
TAXMASTERS, and PATRICK R. COX,
individually,
Defendants Filed
10 May 13 A11:14
Amelia Rodriguez-Mendoza: District Clerk
Travis District
D-1 -GV-1 0-000486
IN THE DISTRICT COURT OF
TRAVIS COUNTY, TEXAS
200th JUDICIAL DISTRICT
PLAINTIFF'S BRIEF IN SUPPORT OF
APPLICATION FOR TEMPORARY RESTRAINING ORDER
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW the State of Texas, represented by and through the Attorney General of Texas, GREG ABBOTT and files this brief in support of its application for a temporary restraining order:
I. THE STATEHAS BROAD POWER TO SEEK
INJUNCTIVE RELIEF
Taxmasters, Inc. is a "tax resolution firm" headquartered in Houston, Texas, that advertises through television commercials and its website that it will solve consumers' IRS problems in Texas and throughout the United States. The Taxmasters, Inc. television advertisements offer a free consultation with tax experts at Defendants' toll-free number. Defendants sell their services over the telephone to consumers in the course of this "free consultation." The Taxmasters' fee to resolve the consumer's tax problem is typically thousands of dollars. Consumers who are unable to pay the entire fee immediately are offered a down payment with a subsequent installment payment fee structure. In order to se the written contract for services provided by Taxmasters, the consumer must
Plaintiff's Brief in Support of Application for TRO State of Texas p. Taxmasters, Inc. et al. give payment information over the telephone to the Taxmasters "tax consultant." The contract or "Engagement Agreement" that is sent to the consumer after the telephone call includes a large number of material terms and conditions that were not disclosed during the sales call. Even if the consumer does not sign and return the Engagement Agreement, Taxmasters considers the terms and conditions therein to be binding on the consumer. According the Engagement Agreement, all fees are non-refundable; Taxmasters, Inc. does not have to begin working on the consumer's tax problem until it has received payment in full; and Taxmasters, Inc. is entitled to its full fee regardless of its success or failure in resolving the consumer's tax problem. Consumers who have not signed and returned the Engagement Agreement, but rather have contacted Taxmasters to cancel after the sales call, but prior to receiving services, have been denied refunds by Taxmasters.
The State of Texas, Plaintiff in this action, alleges that the Defendants have engaged in and
continue to engage in certain acts and practices which violate the Deceptive Trade Practices — Consumer Protection Act, TEX. BUS. & COM. CODE ANN. § 17.41 et seq. (Vernon 2002 & Supp. 2009), (hereinafter "DTPA"). See Plaintiff's Original Petition with the attached Exhibits and Affidavits, incorporated herein as if set out in full for all purposes. As alleged in the State's petition, the Defendants have violated Sections 17.46(a) and 17.46(b) of the DTPA in the course of operating their business.
The State believes that it is in the public's interest that this action be brought to restrain Defendants from any further acts or practices that will violate the DTPA. The State asks that the Defendants be restrained from violating the DTPA pending the issuance of a permanent injunction and ultimately the state requests all such other relief to which it is entitled in law and equity.
Whereas an action for a temporary restraining order brought without notice and solely under Plaintiff's Brief in Support of Application for TRO State of Texas v. Taxmasters, Inc. et al 2 the equity powers of the Court requires a showing of immediate and irreparable injury, the DTPA expressly authorizes the State to seek a temporary injunction upon a showing that a Defendant has violated the DTPA and that it is in the public interest to restrain any future violations. No other showing is required. Furthermore, because the acts sought to be restrained are declared by statute to be injurious to the public interest, the doctrine of balancing the equities does not apply.
II. TEMPORARY RESTRAINING ORDER UNDER THE DECEPTIVE TRADE PRACTICES ACT
The State brings this action for a temporary restraining order under authority granted by the DTPA. That statute states:
Whenever the consumer protection division has reason to believe that any person is engaging in, has engaged in, or is about to engage in any act or practice declared to be unlawful by this subchapter, and that proceedings would be in the public interest, the division may bring an action in the name of the state against the person to restrain by temporary restraining order, temporary injunction, or permanent injunction the use of such method, act or practice.
Thx. Bus. & COM. CODE ANN. § 17.47(a) (Vernon 2002 and Supp. 2009).
Because the State seeks a temporary restraining order granted under specific statutory authority, the standards are different than they would be under the Court's general equity power. Where an applicant relies on a statute which defines the requirements for injunctive relief, the express language supersedes the common law requirements such as balancing of the equities, requiring proof of imminent harm and/or irreparable injury and requiring proof of no adequate remedy at law. Rio Grande Oil Co. v. State, 539 S.W.2d 917, 921 (Tex. Civ. App.— Houston [lst Dist.] 1976, writ ref'd n.r.e.); Mortgagebanc & Trust Inc. v. State, 718 S.W.2d 865, 869 (Tex. App. - Austin 1986, no writ); Recon Exploration, Inc. v. Hodges, 798 S.W.2d 848, 852 (Tex. App. -
Plaintiff's Brief in Support of Application for TRO State of Texas v. Taxmasters, Inc. et aL 3
Dallas 1990, no writ); West v. State, 212 S.W.3d 513, 519 (Tex.App. - Austin 2006, no pet.). In essence, the DTPA itself creates a conclusive presumption that violative conduct has the requisite degree of harm.
The Deceptive Trade Practices Act, therefore, expressly provides for entry of a temporary restraining order upon a showing by the State of two things: (1) that the defendant is engaging in, has engaged in, or is about to engage in a deceptive trade practice and (2) the State believes that the action is in the public's interest. TEX. BUS. & COM. CODE ANN. § 17.47(a) (Vernon 2002 and Supp. 2009).
Moreover, the statute gives the Court specific authority to restrain and prevent violations of the statute. Id. In addition, the statute provides that "such injunctive relief shall lie even if such person has ceased such unlawful conduct ..." Id.
THE STATE HAS MET THE STATUTORY REQUIREMENTS j
The State in this case has proven the two requirements necessary for the entry of a temporary restraining order.
A. The State has shown that Defendants are engaging in, and continue to engage in, deceptive trade practices.
Overwhelming evidence shows the Defendants have engaged , in false, misleading and, deceptive acts in violation of the DTPA. The Original Petition with attached exhibits and affidavits establish the likelihood of the State's success at trial. Specifically, Defendants have failed to disclose that all fees for their tax resolution services are non-refundable. Defendants have further
failed to disclose that they have no obligation to begin working on a consumer's tax problem unless Plaintiff's Brief in Support of Application for TRO State of Texas v. Taxmasters, Inc. et aL 4 and until the Defendants' full fee for services has been paid, including any installment payments. In fact, Defendants affirmatively represent on their website and during sales calls that they will immediately begin working on consumers' tax problems. Defendants further fail to disclose that they are entitled to all of their fees despite their success or failure in resolving the consumer's tax problem. Such misrepresentations and failures to disclose are false, misleading, or deceptive acts or practices for purposes of Section 17.46(a) of the DTPA.
B. The Present Action is in the Public Interest.
As indicated in the State's Original Petition, the Defendants advertise via television commercials and their website throughout Texas and the rest of the United States. According to documents filed by Defendants with the Securities and Exchange Commission, their business has been growing exponentially over the last few months. Defendants primarily sell their tax resolution services over the telephone to consumers, and consider the purchase to be complete prior to the consumer having an opportunity to review the written contract. Furthermore, Defendants consider the terms and conditions of the written contract to be binding on the consumers, but fail to disclose those terms and conditions during the sales call. Finally, Defendants make affirmative representations in their advertising and sales calls which conflict with the terms and conditions in the written contract.
By reason of the institution and operation of these deceptive and unlawful practices, Defendant will cause adverse effects to consumers, and to legitimate business enterprise which conducts trade and commerce in a lawful manner in this State. Therefore, the Attorney General of the State of Texas believes and is of the opinion that these proceedings are in the public interest. Plaintiff's Brief in Support of Application for TRO State of Texas v. Taxmasters, Inc. et al 5
Iv. THE DOCTRINE OF "BALANCING THE EQUITIES" DOES NOT APPLY
The State alleges that the Defendants have engaged in acts or practices that violate the DTPA. The DTPA has specifically declared these acts to be injurious to the public interest. In circumstances where a statute has declared acts to be injurious to the public interest and has authorized injunctive relief, the doctrine of balancing the equities does not apply. State v. Texas Pet Foods, Inc., 591 S.W.2d 800, 805 (Tex. 1979). "When it is determined that the statute is being violated, it is the province and duty of the District Court to restrain it, and the doctrine of balancing of equities does not apply." Gulf Holding Corp v. Brazoria County, 497 S.W.2d 614, 619 (Tex. Civ. App. - Houston [14Th Dist.] 1973, writ ref'd n.r.e.).
The State in Texas Pet Foods sought to enforce the Texas Clean Air Act and the Clean Water Act. Texas Pet Foods, 591 S.W.2d at 802. Both statutes specifically granted the State the power to seek injunctive relief, similar to that issued in the DTPA. The Court found that because it statutorily authorized injunctive relief to restrain the violation of the acts, the doctrine of balancing the equities did not apply. Id. at 805. Similarly, in Gulf Holding Corp., the state sought a injunction under authority granted by the Open Beach Act. 3ulfHolding Corp., 497 S.W.2d at 615. The Defendant argued that he would experience irreparable injury if the injunction was granted, but the court held that the doctrine of balancing of equities did not apply. Id. at 619.
V. CONCLUSION
The State believes it is in the public's interest that this action be brought to enjoin Defendants from any further acts or practices that will violate the DTPA. The State therefore asks that the Defendants be restrained from violating the DTPA pending the issuance of permanent injunction.
Plaintiff's Brief in Support of Application for TRO
Stale of Texas v. Tax.'nasters, Inc. et aL 6
Respectfully submitted,
GREG ABBOTT Attorney General of Texas
C. ANDREW WEBER
First Assistant Attorney General
DAVID S. MORALES
Deputy Attorney General for Litigation
PAUL D. CARMONA
Chief, Consumer Protection Division
naCCA:6161"6&) N E ANETTDINUNZIO
Assistant Attorney General Consumer Protection Division P.O. Box 12548
Austin, Texas 78711
(512) 475-4654
FAX (512) 477-4544
State Bar No.24036484
Plaintiff's Brief in Support of Application for TRO State of Texas v. Taxmasters, Inc. et al. 7
5/17/2010
ORLINDA NARANJO
Judge
(512) 8544023
DIANA CAPUCHINO
Court Operations Officer
(512) 854-4023
Via Facsimile (512) 477-4544
Bruce V. Griffiths
Nanette DiNunzio
Attorney for Plaintiff Assistant Attorney General Consumer Protection Division P.O. Box 12548
Austin, Texas 78711-2548419TH DISTRICT COURT
Via Facsimile (512) 322-8341
Gavin R. Villareal
Robert Howell
Attorneys for Defendants Baker Botts LLP
1600 San Jacinto Center 98 San Jacinto Blvd.
Austin, Texas 78701-4039
JULIO DE LA LLATA
Staff Attorney
(512) 8544029
ALICIA RACANELLI
Official Court Reporter
(512) 854-4028
COURTNEY MOREAU
Court C
42)854 3 ID
U,
2i
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0 . d C)
•0 =
HEMAN MARION SWEATT TRAVIS COUNTY COURTHOUSE
P. 0. BOX 1748
AUSTIN, TEXAS 78767
FAX: (512) 854-2224
May 14,2010
Re: Cause Cause No. D-I-GV-1 9-000486; The State of Texas vs. Taxmasters, Inc., TM IRS Enterprises, Ltd., TM GP Services, LLC, fl/B/A Taxmasters, and Patrick R. Cox, individually; In the 200th Judicial District, Travis County, Texas
Dear Counsel:
Enclosed is the Temporary Restraining Order in the above referenced matter. The Order has been signed by the Court and filed with the District Clerk's Office.
If you have any questions regarding this matter, please contact our staff attorney, Julio de La Llata at (512) 854-
4029.
Sincerely,
c
Diana G. Capuchino
Court Operations Officer to
Judge Orlinda L. Naranjo
4191h District Court, Travis County
Enclosures (1)
xc: Ms. Anialia Rodriguez-Mendoza, District Clerk
DC BK10139 PG143
Notice sent: Final Interlocutory None
DIsp Parties'
THE STATE OF TEXAS, IN THE DISTRICT COURT OF
Plaintiff
V. TRAVIS COUNTY, TEXAS
41)
r= 0
TAXMASTERS, INC., TMIRS ENTERPRISES, LTD., TM GP 0 Ct
SERVICES, LLC, D/B/A U JUDICIAL DISTRICT
TAXMASTERS, and PATRICK R. COX,
individually,
Defendants
TEMPORARY RESTRAINING ORDER
THE STATE OF TEXAS, Plaintiff, acting by and through Attorney General GREG
ABBOTT, has filed its Plaintiff's Original Petition ("Original Petition") in this cause seeking a Temporary and Permanent Injunction against Defendants ("Defendants"), and in the same Original Petition has presented its request for a Temporary Restraining Order against the Defendants. The Court FINDS that Defendants may be violating §§ 17.46(a) and (b) of the Texas Deceptive Trade Practices-Consumer Protection Act ("DTPA"), Tex. Bus. & Corn. Code § 17.41
et seq. (Vernon 2002 and Supp. 2009), and the Court further FINDS that this action is in the public interest.
It appears from the facts set forth in Plaintiff's Original Petition and exhibits and sworn affidavits attached thereto that unless Defendants are immediately restrained from the acts prohibited below, Defendants will continue to commit such acts before notice can be given and a hearing can be held on the State of Texas' request for a Temporary Injunction. IT IS THEREFORE ORDERED that Defendants, their officers, agent, employees, and attorneys, and all persons in active concert or participation with them, are hereby commanded to DC BK10139 PG144
immediately desist and refrain from the following acts from the date of entry of this Order until the fourteenth day after entry or until further Order of this Court:
a. Failing to clearly and conspicuously disclose to consumers prior to purchase of tax resolution services from Defendants that Defendants' contract provides that Defendants are entitled to their full fee regardless of Defendants' success or failure in resolving the consumer's tax issue;
b. Failing to clearly and conspicuously disclose to consumers prior to purchase of tax resolution services from Defendants that Defendants' contract provides that Defendants are under no obligation to perform any services on behalf of consumers unless and until Defendants' fee has been paid in full by the consumer;
C. In the case of consumers who make partial payments to Defendants, failing to clearly and conspicuously disclose to those consumers prior to purchase of tax resolution services from Defendants that Defendants may not begin working on the consumer's tax issue until the Defendants have received the entire fee;
d. Failing to clearly and conspicuously disclose to consumers prior to purchase of tax resolution services from Defendants that Defendants' contract provides that any and all fees paid by the consumer to Defendants for tax resolution services are nonrefundable; and
e. Destroying, transferring, hiding, secreting, or moving to a location outside the State of Texas any records, books, computers, ledgers, customer lists, audio recordings, sales scripts, client contracts, advertisements, or any other records belonging to Defendants.
2
DC BK10139 PG145
IT IS FURTHER ORDERED that the State of Texas shall have leave to take telephonic, video, written, and other depositions as well as leave to ask Defendants to respond to a Request for Production prior to any scheduled Temporary Injunction hearing upon reasonable shortened notice
to Defendants. Specifically, the Court orders as follows:
a. Defendants to respond to the attached Requests for Production on or before May 24th, 91,1/
2010;
01 't1
b. The deposition of Elbert Dewayne Logan on May 24, 2010,
c. No more than five depositions of consumers, which may be telephonic depending on the consumer's geographic location.
The Clerk of the Court shall immediately issue a TEMPORARY RESTRAINING ORDER in conformity with the law and the terms of this Order. This Order shall be effective without the execution and filing of a bond because Plaintiff, the State of Texas, is exempt from such bond under Tex. Civ. Prac. & Rem. Code § 6.001 and Tex. Bus. & Corn. Code § 17.47(b).
Hearing on Plaintiff State of Texas' Application for a Temporary Injunction is hereby set for the 2 el. r day of May, 2010 at cm o'clock A .m. 1011-ta Ck4tIV 64 ai rttem m-Vs o1
-I 94.,
SIGNED this 14th day of may at 3:40 o'clock .p .m.
DC BK10139PG146 OF
419TH DISTRICT COURT
HEMAN MARION SWEATT TRAVIS COUNTY COURTHOUSE
P.O. BOX 1748
ORL1NDA L. NARANJO AUSTIN, TEXAS 78767 ALICIA RACANELLI
Judge Official Court Reporter
(512) 854-4023 FAX: (512) 854-2224 (512)8544028
DIANA CAPUCH1NO JULIO DE LA LLATA
Court Operations Officer Staff Attorney
(512) 854-4023 (532) 854-4029
FAX COVER SHEET
Date: _5/14/10
To: Bruce Griffiths/Nanette DiNunzio Gavin VillareaifRobert Howell
Fax No.: (512)477-4544
(512) 322-8341
From: Diana Capuchino, Court ODerations Officer to Judge Orlinda Naranjo Fax No.: 512-854-2224
Message:
Number of Pages: 5_(Including Fax Cover)
If there is a problem with the transmission of this facsimile, please contact the Court Coordinator, Diana Capuchino at 512-854-4023.
DC BK10139 PG147
419TH DISTRICT COURT
HEMAN MARION SWEATT TRAVIS COUNTY COURTHOUSE
P.O. BOX 1748
ORLINDA L NARANJO AUSTIN, TEXAS 78767 ALICIA RACANELLI
Judge Official Court Reporter
(512) 854-4023 FAX: (512) 854-2224 (512) 854-4028
DIANA CAMJCIIINO JULIO DE LA LLATA
Court Operations Officer Staff Attorney
(512) 8544023 (512)854-4029
FAX COVER SHEET
Date: 5/14/10
To: Bruce Griffiths/Nanette DiNunzio Gavin Villareal/Robert Howell
Fax No.: (512)477-4544
(512) 322-8341
From: Diana Capuchin°. Court °aerations Officer to Judge Orlinda Naranio Fax No.: 512-854-2224
Message:
Number of Pages: Including Fax Cover)
If there is a problem with the transmission of this facsimile, please contact the Court Coordinator, Diana Capuchino at 512454-4023.
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DC BK10139PG148
No. D-1-GV-10-000486
PLAINTIFF THE STATE OF TEXAS' REQUEST FOR PRODUCTION
TO DEFENDANT TM GP SERVICES, LLC
To: Defendant, TM GP Services, LLC, hereafter "Respondent", by and through its registered agent, Patrick R. Cox, 900 Town & Country Lane, Houston, Texas 77024.
The State of Texas requests that Respondent produce for discovery under provisions of Texas Rules of Civil Procedure Rule 196, and the Court's order in this cause, the items specified below, at the time and place and for the purposes also set out below.
Good cause for this request exists in that the information, documents and matters requested below constitute, contain or are reasonably calculated to lead to the discovery of material evidence and are relevant to this case, and discovery of same is necessary for proper preparation of this case. The information, documents and matter sought through this request are in your possession, custody, or control and are not privileged
INSTRUCTIONS
This production request seeks all documents available to you or in your possession, custody, or control from any source wherever situated, including, but not limited to, information from any files, records, documents, employees, former employees, counsel, and former counsel of any party to this litigation, Plaintiff or Defendant, and including, but not limited to, documents in your possession, custody, or control, and documents in the possession, custody, or control of any predecessor or successor of you.
ii. If any document otherwise responsive to any request was, but is no longer, in your possession
DC BK10139 PG149
or subject to your control or in existence, state whether: ( 1 ) it is missing or lost; (2) it has been destroyed; (3) it has been transferred voluntarily to others, or (4) it has been otherwise disposed of and the manner thereof. In each instance, explain the circumstances surrounding such disposition and identify the person(s) directing or authorizing its destruction or transfer, and the date(s) of such direction or authorization. Identify each document by listing its author and addressee (for, e.g., letter, memorandum, telegram, chart, photograph, etc.), date, subject matter, whether the document or copies are still in existence, and if so, their present location(s) and custodian(s).
iii. All documents as to which any privilege is claimed shall be retained intact, subject to ruling by the Court as the claimed privilege. For any document which you claim to be privileged, state: (1) the reason for withholding it; (2) the author of the document; (3) each individual or other person to whom the document has been sent; (4) the date of the document; and (5) the general subject mater of the document.
iv. Each document produced in response to this request should be referenced with the number(s) of the relevant request and subsection. Should any of the documents pursuant to this request have already been made available for our inspection, it will be sufficient to note this fact and to provide the following information: (I) document production number if any; (2) date, author, address (if any), of persons receiving distribution of such documents or copies thereof; (3) a description of the nature of the documents; and (4) the particular request and item in response to which the document has previously been produced.
v. It is requested that all documents and/or other data compilations that concern the subject matter of this litigation be preserved and that any ongoing process of document destruction involving such documents cease.
vi. To the extent any request is objected to, please set forth a complete basis for the objection. If you object to only a portion of a particular request, specifically identify the portion of the request to which you are objecting and respond to the remainder completely.
vii. Under the terms the Court's order in this cause, the response to this request, and objections, if any, shall be served no later than Thursday, May 26th, 2010. We request that you provide the requested documents and things for examination, inspection, and where applicable,
2
DC BK1 01 39 PGI50
copying and/or photocopying within such time at 300 West 15th Street, 9th Floor, Austin, Texas 78701.
viii. Documents should be provided by you as they become available, but in any event no later than the aforesaid time, or at the time mutually agreed upon by the parties.
ix, This request for documents is continuing in nature and requires supplemental answers if you generate or obtain further pertinent information or documents.
DEFINITIONS
I. Unless otherwise indicated, the use in this Request of the term "Respondent" or the name of a party or business organization specifically includes all employees, agents, representatives, and attorneys of the Respondent, party, or business organization.
2. "TM UP Services, LLC," "it," and "its" means "TM UP Services, LLC," which has done business in the State of Texas. These terms include any representatives, employees, agents, attorneys, successors, and assigns. The terms also include all natural persons and entities acting or purporting to act on behalf of any of the above, as well as any predecessor, successor, affiliate, subsidiary, or wholly-owned or -controlled entity. The phrase shall be construed to include present and former officers, directors, equity owners, agents, employees, representatives, consultants, attorneys, associates, and all other persons acting or purporting to act on its behalf, and any predecessor, successor, affiliate, or subsidiary entity or person(s), including all present and former officers directors, agents, employees, and all other persons exercising or purporting to exercise discretion, make policy, or make decisions.
3. Without limiting the term, a document is deemed to be within TM UP Services, LLC's "control" if it has ownership, possession, or custody of the document, or the right to secure the document or copy thereof from any person or public or private entity having physical possession thereof.
4. "Complaint" is to be broadly construed. It includes any documentation commemorating expressions of dissatisfaction with TM UP Services, LLC, its business, equipment or service provided by it, dissatisfaction with its employees or agents, or the procedures or services utilized by them.
DC BK10139 PG151
5. "Documents" or "Records" means all original written, recorded or graphic matter whatsoever, and non-identical copies hereof, including but not limited to pleadings, motions, responses to discovery, papers, books, records, letters, photographs, tangible things, correspondence, communications, telegrams, cables, telex, messages, memoranda, notes, notations, work papers, transcripts, minutes, reports, electronic mail messages, and recordings for telephone or other conversations, or interviews or conferences, or other meetings, affidavits, statements, summaries, opinions, reports, studies, analyses, evaluations, contracts, agreements, agendas, jottings, bulletins, notices, announcements, advertisements, instructions, charges, manuals, brochures, publications, schedules, price lists, client lists, journals, statistical records, desk calendars, appointment books, diaries, lists of tabulations, sound records, computer print-outs, data processing programs, libraries, data processing input and output, microfilm, books of account, records, invoices, statements of account, credit memoranda, and checks reflecting business operations, all records by electronic, photographic or mechanical means, any notes or drafts relating to the foregoing, all things relating to the foregoing, however denominated by the parties and all documents as defined by the Texas Rules of Civil Procedure. In all cases of electronic or magnetic documents, records, or data, such documents, records, or data should be produced in a format usable by the requesting party, complete with any necessary user interface support program. In cases where originals are not available, "document" also means identical copies of the original documents and non-identical copies thereof In all cases where documents are in a language other than English, documents include all translations and materials related to particular translations.
6. As used herein, the words "and" and "or" shall he construed either conjunctively or disjunctively as required by the context to bring within the scope of this request any answer, response or document that might be deemed outside its scope by another construction.
7. "Any" means any and all.
8. "Evidencing" means having any tendency to make the existence of any fact of consequence to this investigation more probable or less probable than it would be without the evidence. 9, "Showing" and "reflecting" a given subject shall mean any document or communication that
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DC BK10139 PG152
constitutes, evidences, contains, embodies, comprises, respects, relates to, concerns, touches upon, incident to, identifies, states, refers to, deals with, comments on, responds to, describes, involves or is in any way pertinent to that subject including but not limited to documents concerning the presentation of other documents.
10. "Relate," "related," and "relating" mean and include all information that in any manner or form is relevant in any way to the subject matter in question, including, without limitation all information that, directly or indirectly, contains, records, reflects, summarizes, evaluates, refers to, indicates, comments upon, or discusses the subject matter or that in any manner states the background of, or was/were the basis or bases for, or that record, evaluate, comment upon, relate to, or were referred to, relied upon, utilized, generated, transmitted, or received in arriving at its conclusion(s), opinion(s), estimate(s), position(s), decision(s), belief(s), or determination(s).
11. "Identifying" means to give a reasonable, detailed description thereof. When referring to a person, it includes providing a present or last known address, telephone number, title or position, and place of employment, and, if previously or presently employed by TM GP Services, LLC, the date he or she was hired and the date he or she was terminated, if applicable.
12. "Consumer" means an individual, partnership, corporation, association, or other group, however organized, who is or was at any time a client or customer, or prospective client or customer of any of TM GP Services, LLC
TIME PERIOD
Unless otherwise indicated, the discovery requested relates to the period of January 1, 2008 through and including May 13th, 2010. All requested documents, data compilations, and recordings whenever actually prepared or generated that relate to this time period are to be produced.
DOCUMENTS
Sample copies of any and all scripts used by TM UP Services, LLC for consultations or sales
