1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

Michael Thomas Paul,

Plaintiff,

v.

City of San Antonio, acting by and through City Public Service Board (CPS Energy), Defendant.

CIVIL ACTION NO.

5:15-CV-00173-DAE

HEARING REQUESTED

DEFENDANT CPS ENERGYS OPPOSED FIRST AMENDED MOTION TO QUASH

PLAINTIFFS SUBPOENA AND MOTION FOR PROTECTIVE ORDER

Defendant City of San Antonio, acting by and through City Public Service Board (CPS

Energy) files this its First Amended Motion to Quash Plaintiffs Subpoena and Motion for

Protective Order. This Motion is substantially identical to a motion previously filed by CPS

Energy, ECF No. 17, modified only to address additional discovery requests sent by Plaintiff

since the filing of that the earlier motion.

Factual Background

The present suit brought by Mr. Paul against CPS Energy is his third within the past nine

months related to alleged injuries suffered as a result of the installation of a metering device at

his home in conjunction with his receipt of a $15,000 solar energy subsidy from CPS Energy.

The first two suits, filed in Texas courts in Comal County and Bexar County, were voluntarily

dismissed by Mr. Paul without prejudice.

Notwithstanding the fact that CPS Energy had not yet been served with a copy of the

Complaint, on June 15, 2015 a subpoena directed at CPS Energy was delivered to the Clerk of

the City of San Antonio. This subpoena, though defective in ways shown herein, purports to

Case 5:15-cv-00173-DAE Document 26 Filed 07/13/15 Page 1 of 7

2

command production of certain documents by CPS Energy four days later on June 19, 2015.

Despite the subpoenas deficiencies that nullify it automatically, CPS Energy, in an abundance of

caution, now seeks to quash the subpoena and for protection from the issuance of other discovery

tools outside of the timetables established under the Federal Rules of Civil Procedure.

Further, on July 8, 2015, Plaintiff served a Request for Production upon CPS Energy.

Counsel for CPS Energy conferred with Plaintiff, requesting that discovery be postponed until

the appropriate time following a Rule 26(f) conference and a ruling from the Court on CPS

Energys motions to dismiss. Mr. Paul, however, was unwilling to withdraw his discovery

requests and CPS Energy now seeks protection from those requests and any others that he may

serve outside the timetable prescribed by the Federal Rules of Civil Procedure.

Motion to Quash

The subpoena issued by Mr. Paul commands CPS Energy to produce within five days of

receipt any and all documentation regarding installation, programming, operation of any and all

devices used for SCADA and ancillary operation of DER/DG utilizing AMI and wifi. See

Plaintiffs Subpoena attached as Exhibit A. CPS Energy asks the Court to quash this subpoena

because it was not properly issued, is vague and confusing, would place a substantial and undue

burden upon CPS Energy, and does not provide adequate time for compliance.

1. The subpoena is vague and confusing

The text provided above is the only information that CPS Energy has regarding the

purported documents that are the subject of the subpoena. Without further explanation, however,

CPS Energy is unable to determine what is sought by the subpoena to even identify additional

objections that it might have to the request or to assert any applicable privileges. Despite being a

short description, there are multiple abbreviations (SCADA, DER/DG, and AMI) that

Case 5:15-cv-00173-DAE Document 26 Filed 07/13/15 Page 2 of 7

3

while not wholly unfamiliar to CPS Energy, do not make sense in the context that they were used

by Mr. Paul. Further, other words such as ancillary operation, devices, are not defined and

lend themselves to multiple differing interpretations. Consequently, even if CPS Energy had

been properly served with Plaintiffs subpoena, it is simply unable to respond given the vague

and ambiguous language used within the subpoena.

2. The subpoena subjects CPS Energy to an undue burden

To the best of its ability to understand the nature of Mr. Pauls suit, it appears to relate to

injuries that he allegedly suffered because of the installation of a metering device at his

residence. Though the suit appears to be limited in nature to Mr. Pauls alleged injuries and

actions taken by CPS Energy with regard to Mr. Paul, the subpoena commands production of

any and all documentation relating to various areas of CPS Energys operations with many

moreor perhaps allof its residential and commercial customers.1

Further, pursuant to Rule 12 of the Federal Rules of Civil Procedure, CPS Energy intends

to file a motion to dismiss Mr. Pauls Complaint. Therefore, it is also unduly burdensome for

CPS Energy to have to respond to any subpoena or discovery request before the Court has

considered and ruled upon CPS Energys Motion to Dismiss, particularly in light of the other two

suits already brought by Mr. Paul. Because the subpoena would place an undue burden upon

CPS Energy, it should be quashed. See Fed. R. Civ. P. 45(d)(3)(A)(iv).

3. The subpoena imposes an unreasonable time for compliance

The subpoena does not allow reasonable time for compliance. Even if CPS Energy were

able to decipher the subpoena and sought to produce relevant documents, it would

unquestionably need more than five days to adequately respond. Due to the subpoenas vague 1 Given the ambiguous and confusing terms used in the subpoena, CPS Energy is unable to determine exactly what is sought. However, it is clear that the request is not limited in time or scope and seeks production of documents unrelated to Mr. Paul or his alleged injuries.

Case 5:15-cv-00173-DAE Document 26 Filed 07/13/15 Page 3 of 7

4

and confusing language, CPS Energy is unable to provide a timetable when it might be able to

comply with the subpoenas commands, however under any circumstances, five days is

inadequate and the subpoena should be quashed. See Fed. R. Civ. P. 45(d)(3)(A)(i).

4. The subpoena was not properly issued or properly served.

The subpoena was signed only by Mr. Paul and is not signed by an attorney admitted in

the Western District of Texas or by the clerk as required by Federal Rule of Civil Procedure

45(a)(3). Further, Mr. Paul did not include with the subpoena a copy of the text of Federal Rules

of Civil Procedure 45(d) and 45(e) as required by Rule 45(a)(1)(A)(iv). For either of these

reasons, the subpoena is invalid and should be quashed.

Motion for Protective Order

1. Generally

In light of lessons learned from Mr. Pauls prior suits against CPS Energy in state court,

CPS Energy moves the Court to enter an order prohibiting Mr. Paul from pursuing discovery

from CPS Energy, whether through a discovery request or subpoena, until after the Court has

ruled upon CPS Energys Rule 12 Motion to Dismiss. In the alternative, and at a minimum, CPS

Energy asks that the Court enter an order prohibiting Mr. Paul, in accordance with Federal Rule

of Civil Procedure 26(d)(1), from pursuing discovery from CPS Energy by any means until such

time that the parties have held their Rule 26(f) conference. CPS Energy further requests that for

the sake of clarity as to governing rules, that Mr. Paul be instructed not to seek further discovery

from CPS Energy by means of a subpoena, but rather seek discovery through means of a

standard discovery tool or a notice of deposition.

Finally, to avoid confusion that has arisen in the prior cases brought by Mr. Paul

regarding what constitutes service of documents, including discovery requests, CPS Energy

Case 5:15-cv-00173-DAE Document 26 Filed 07/13/15 Page 4 of 7

5

requests that the Court order that all parties be required to file discovery requests through the

Courts ECF system.

2. Plaintiffs Request for Production

In addition to the subpoena, since the time that CPS Energy has been served in this suit,

Plaintiff served a Request for Production seeking production of wide array of documents by

means of requests that will all certainly be subject to objections regarding the undue burden that

they will impose. See, Pl.s Req. for Produc. attached as Exhibit B. However, the parties have

not yet participated in their Rule 26(f) conference. Consequently, the discovery request is barred

completely at this time by the Federal Rules of Civil Procedure and CPS Energy seeks protection

from the requests. Fed. R. Civ. P. 26(d)(1).

Request for Hearing

To assist the Court in understanding the nature of its request for relief and also for the

benefit of ensuring that Mr. Paul has an opportunity to be heard and that he understands and will

comply with any order that issues from the Court, CPS Energy requests an oral hearing on its

motions.

Conclusion and Prayer

In light of the foregoing, CPS Energy respectfully requests that the Court quash

Plaintiffs subpoena and requests for production and enter a protective order enjoining Plaintiff

from pursuing discovery until after the Court has ruled on motions brought in response to

Plaintiffs Complaint pursuant to Federal Rule of Civil Procedure 12, and requiring Plaintiff not

to seek discovery from CPS Energy by means of subpoena, as well as for such other and further

relief to which it is rightfully entitled.

Case 5:15-cv-00173-DAE Document 26 Filed 07/13/15 Page 5 of 7

6

Respectfully submitted,

/s/ Matthew E. Vandenberg Jeffrey T. Harvey State Bar No. 6011139 jharvey@jw.com Matthew E. Vandenberg State Bar No. 24079501 mvandenberg@jw.com JACKSON WALKER L.L.P. 112 E. Pecan Street, Suite 2400 San Antonio, Texas 78205 Telephone: (214) 953-6000 Facsimile: (214) 953-5822

ATTORNEYS FOR DEFENDANT CPS ENERGY

Case 5:15-cv-00173-DAE Document 26 Filed 07/13/15 Page 6 of 7

7

CERTIFICATE OF CONFERENCE

I certify that on June 16, 2015, I spoke with pro se Plaintiff Michael Thomas Paul and we discussed whether he would withdraw his subpoena and delay discovery in this matter until after our required Rule 26(f) conference or a ruling of the Court in response to CPS Energys Rule 12 Motion in response to Mr. Pauls Complaint. Though Mr. Paul did offer a short extension to the deadline to respond to the subpoena, we were unable to reach any agreement.

On July 8, 2015, the date that Plaintiff sent his Request for Production, I spoke further with pro se Plaintiff Michael Thomas Paul and we discussed whether he would withdraw the request for production and delay discovery in this matter until after our required Rule 26(f) conference or a ruling of the Court in response to CPS Energys Rule 12 Motion in response to Mr. Pauls Complaint. Mr. Paul was not willing to delay the response deadline or to postpone discovery until after the Rule 26(f) conference.

/s/ Matthew E. Vandenberg Matthew E. Vandenberg

CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of July 2015, I electronically filed the foregoing with

the Clerk of the Court using the CM/ECF system through which a copy was served upon:

Michael Thomas Paul, pro se 9123 Easy Street San Antonio, Texas 78266 (210) 294-4533 mtp8389@gmail.com

/s/ Matthew E. Vandenberg Matthew E. Vandenberg

13963735v.1 103119/02454

Case 5:15-cv-00173-DAE Document 26 Filed 07/13/15 Page 7 of 7

mailto:mtp8389@gmail.com