2019-11-21 Sanctions Hearing - Marked PDF

#oof 1
1 REPORTER'S RECORD
2 VOLUME 1 OF 1 VOLUME
3 CAUSE NO. 141-307474-19
4 VICTOR MIGNOGNA, X IN THE DISTRICT COURT

X
5 Plaintiff, X
X
6 VS. X 141ST JUDICIAL DISTRICT
X
7 MONICA RIAL, RONALD X
TOYE and FUNIMATION X
8 PRODUCTIONS, LLC X
X
9 Defendants. X TARRANT COUNTY, TEXAS
10
11
12 *-*-*-*-*-*-*-*-*-*-*-*-*-*
13 HEARING
14 *-*-*-*-*-*-*-*-*-*-*-*-*-*
15
16
17
18
19 BE IT REMEMBERED that on the 21st day of
20 November, 2019, the following proceedings came on to
21 be heard in the above-entitled and -numbered cause
22 before the Honorable John P. Chupp, judge presiding,
23 held in Fort Worth, Tarrant County, Texas.
24 The proceedings were reported by machine
25 shorthand.
#SoundsExpensive #FearTheBeard
Tina Fett, CSR
Official Court Reporter 141st District Court
#oof 2
1 A P P E A R A N C E S
2 APPEARING FOR PLAINTIFFS:
3 Mr. An Lee Hsu

State Bar No. 24078699
4 Mr. Michael Martinez
5 MARTINEZ HSU
4001 W. Airport Freeway
6 Suite 150
Bedford, Texas 76021
7 Telephone: (682) 224-7810
Facsimile: (682) 730-8998
8 ahsu@mhlegalgroup.com
9 -and-
10 Mr. Ty Beard
11 BEARD HARRIS BULLOCK HUGHES
100 Independent Place
12 Suite 101
Tyler, Texas 75703
13 Telephone: (903) 509-4900
Facsimile: (903) 5094908
14 ty@beardandharris.com
jim@beardandharris.com
15
16 APPEARING FOR DEFENDANT,

FUNIMATION PRODUCTIONS, LLC:
17
Mr. John Volney
18 State Bar No. 24003118
Ms. Rebecca L. Adams
LYNN PINKER COX & HURST, LLP
20 2100 Ross Avenue
Suite 2700
21 Dallas, Texas 75201
Telephone: (214) 981-3800
22 Facsimile: (214) 981-3839
jvolney@lynnllp.com
23 radams@lynnllp.com
24
25
Tina Fett, CSR
#oof 3
1 APPEARANCES (Continued)
2 APPEARING FOR DEFENDANTS,

MONICA RIAL AND RONALD TOYE:
3
Mr. J. Sean Lemoine
Mr. Jeffrey W. Hellberg, Jr.
Mr. Ethan Minshull
WICK, PHILLIPS, GOULD & MARTIN LLP
7 3131 McKinney Avenue
Suite 100
8 Dallas, Texas 75204
Telephone: (214) 692-6200
9 Facsimile: (214) 692-6255
sean.lemoine@wickphillips.com
10 jeff.hellberg@wickphillips.com
ethan.minshull@wickphillips.com
11
12 APPEARING FOR DEFENDANT, JAMIE MARCHI:
13 Mr. Samuel Harris "Sam" Johnson

14 Mr. D. Max Friedman
15 JOHNSON & SPARKS, PLLC
7161 Bishop Road, Suite 220
16 Plano, Texas 75024
Telephone: (972) 918-5274
17 Facsimile: (972) 918-5274
sam@johnsonsparks.com
18
19
20
21
22
23
24
25
Tina Fett, CSR
#oof 4
1 CHRONOLOGICAL INDEX
2 VOLUME 1 of 1 VOLUME
3 THURSDAY, NOVEMBER 21, 2019 PAGE VOL.
4 Caption ................................... 1 1
5 Appearances ............................... 2-3 1
6 Proceedings ............................... 6 1
7 DEFENDANT'S WITNESS(S):
8 DIRECT CROSS VOIR DIRE VOL.
9 Sean Lemoine 10,62 38 1
10 Victor Mignogna 66 103 1
11 John Volney 111 134,139 1
12 Samuel H. Johnson 150 164 1
13 DEFENDANT'S EXHIBITS
NO. DESCRIPTION OFFERRED ADMITTED VOL.
14
1 Declaration of Samuel H. Johnson 153 1
15
G-1 Engagement Letter and Fee 153 1
16 Agreement (Johnson & Sparks)
17 G-2 Services May 1, 2019 to 153 1

May 31, 2019 (Johnson & Sparks)
18
G-3 Summary by Client (Johnson & Sparks) 153 1
19
2 Affidavit of John Volney 112 1
20
2C Lynn Pinker, Cox & Hurst Invoices 112 1
21
2E Invoices for Costs Incurred by 112 1
22 Funimation
23 3 Affidavit of Sean Lemoine 9 1
24 4 Affidavit of Casey Erick 9 1
25 5 Affidavit of Andrea Perez 9 1
Tina Fett, CSR
#oof 5
1 CHRONOLOGICAL INDEX (Continued)
2 VOLUME 1 of 1 VOLUME
3 DEFENDANT'S EXHIBITS
NO. DESCRIPTION OFFERRED ADMITTED VOL.
4
7A Monica Rial/Ron Toye 23 1
5 Fee/Expenses Summary Chart
6 7B Funimation Fee Summary Chart 117 1
7 7C Jamie Marchi Attorney's Fees 156 1
8 8 Plaintiff's Original Petition 67 1
9 9 Demonstrative Timeline 75 1
10
11 Adjournment ............................... 191 1
12 Reporter's Certificate .................... 192 1
13
14
15
16
17
18
19
20
21
22
23
24
25
Tina Fett, CSR
#oof 6
1 P R O C E E D I N G S
2 (Thursday, November 21, 2019, 1l:00 a.m)
3 *-*-*-*-*-*-*-*
4 THE COURT: All right. What do we need
5 to do first?
6 MR. LEMOINE: Judge, we are ready to
7 call our first witness.
8 THE COURT: Okay.
9 MR. MARTINEZ: Your Honor, we have
10 filed a motion for a continuance to have some
11 additional time. I don't know if the Court has had an
12 opportunity to review that.
13 THE COURT: I had an opportunity to
14 read it, but you didn't set it.
15 MR. MARTINEZ: Yes, Your Honor. The --
16 additionally, Your Honor, we did file this morning a
17 motion to strike their exhibits for various reasons.
18 THE COURT: I saw that.
19 MR. MARTINEZ: Okay.
20 THE COURT: Let's have the hearing, and
21 if for some reason we feel like we need more time,
22 we'll get more time.
24 THE COURT: You can call a witness.
25 MR. HELLBERG: Your Honor, Jeff
Tina Fett, CSR
#oof 7
1 Hellberg here on behalf of -- I'm partners with
2 Mr. Lemoine, here on behalf of Defendants Rial and
3 Toye.
4 At this point, we would offer into
5 evidence three exhibits, if I may approach, I have
6 copies.
7 THE COURT: Okay.
8 MR. HELLBERG: Your Honor, I'm
9 referring specifically to Exhibits 3, 4, and 5 in that
10 binder.
11 THE COURT: The ones you are handing
12 me, are these going to be the ones that the court
13 reporter will keep, or do you have a copy for the
14 court reporter? You don't have to.
15 MR. HELLBERG: I have an extra copy.
16 MR. LEMOINE: We have them on a thumb
17 drive.
18 MR. HELLBERG: Okay. We --
19 THE COURT: I'll give this to Tina,
20 whatever we admit.
21 MR. HELLBERG: Okay.
22 THE COURT: That's fine. I don't need
23 it.
24 MR. HELLBERG: Your Honor, we would
25 move to admit 3, 4, and 5. They are business records,
Tina Fett, CSR
#oof 8
1 business records affidavits that were provided to
2 plaintiff's counsel more than 14 days before this
3 hearing. We move to admit.
4 MR. MARTINEZ: He said 3, 4, and 5?
5 THE COURT: 3 is an affidavit.
6 MR. HELLBERG: They're all affidavits,
7 Your Honor.
8 THE COURT: Okay. But you're saying
9 the affidavit is a business record?
10 MR. HELLBERG: It's a business -- it
11 contains a business records affidavit --
12 THE COURT: Oh, okay.
13 MR. HELLBERG: -- with attachments
14 thereto, with respect to the billing records that are
15 going to be the subject of Mr. Lemoine's testimony
16 momentarily.
17 THE COURT: Okay. So they're offering
18 3, 4, and 5.
19 MR. MARTINEZ: Yes, Your Honor. If I
20 can have just a moment to confirm.
21 MR. HELLBERG: Your Honor, these were
22 also attached to the motion, so they've had them for
23 quite some time.
24 MR. MARTINEZ: Your Honor, if I may,
25 the issue we have with these affidavits is that under
Tina Fett, CSR
#oof 9
1 the business records exception one of the requirements
2 is that the affidavits proving up the documents state
3 that they were kept in the regular course of business.
4 That is not included in these affidavits, Your Honor.
5 THE COURT: It was the regular course
6 of business of Wick, Phillips or an employee or
7 representative of them with knowledge of the acts,
8 events, conditions to make records or transmit
9 information. That part?
10 MR. MARTINEZ: Yes, that part, Your
11 Honor, as relates to what they did, but not the
12 attachments thereto of those exhibits.
13 And let me make sure -- I may have
14 missed it, Your Honor.
15 THE COURT: Look at seven on the first
16 one.
17 MR. MARTINEZ: You are correct, Your
18 Honor. My apologies. I'll withdraw the objection on
19 that part. We have no objection to these.
20 THE COURT: Okay. Exhibits 3, 4, and 5
21 are admitted.
22 (Defendant's Exhibits 3-5 are admitted)
23 MR. HELLBERG: Thank you, Your Honor.
24 At this point, we call Mr. Sean Lemoine
25 to the stand.
Tina Fett, CSR
#oof 10
1 THE COURT: There's a ramp. Watch your
2 step.
3 (Witness sworn)
4 SEAN LEMOINE,
5 having been duly sworn, testified as follows:
6 DIRECT EXAMINATION
7 BY MR. HELLBERG:
8 Q. Mr. Lemoine, would you please introduce
9 yourself to the Court.
10 A. My name is Sean Lemoine.
11 Q. And, sir, what is your purpose here
12 today?
13 A. I'm here to testify on reasonable and
14 necessary attorney's fees, along with expenses and
15 costs as allowed under the Texas Citizen's
16 Participation Act.
17 Q. Mr. Lemoine, where did you go to law
18 school?
19 A. Vermont Law School. I graduated in 2000,
20 and became licensed in the state of Texas in November
21 of 2000.
22 Q. And where have you practiced since you
23 received your Texas bar card?
24 A. Throughout the state, predominantly in the
25 DFW Metroplex, though.
Tina Fett, CSR
#oof 11
1 Q. And what type of practice do you have?
2 A. It's a -- I'm a business trial lawyer, so
3 commercial litigation.
4 Q. And what firm are you currently with?
5 A. Wick, Phillips. I've been there since we
6 opened the doors in 2004.
7 Q. Have you ever testified before on the issue
8 of reasonable and necessary attorney's fees?
9 A. I have.
10 Q. On approximately how many occasions?
11 A. Live in testimony, probably two or three,
12 either before a bench trial or jury. And by
13 affidavit, I would say easily 60 times.
14 Q. Are you familiar with the Texas Citizen's
15 Participation Act?
16 A. Yes.
17 Q. How are you familiar with what we will call
18 the TCPA?
19 A. Wick Phillips first started litigating
20 under the TCPA in 2013, and I'm probably the lead
21 attorney within the firm that advises on that
22 particular statute. I write a blog called
23 www.antislapptexas.com that kind of updates it.
24 I wrote a version of the recommendations
25 to the statute that we submitted this past legislative
Tina Fett, CSR
#oof 12
1 session through Representative Meyer, and worked with
2 the senate side to try and get some changes, not the
3 ones I wanted, but some of them.
4 I probably litigated to through this
5 type of hearing at least 12 to 15 TCPA motions. Wick,
6 Phillips has a pretty robust anti-SLAPP practice. We
7 have, I believe, six or seven opinions personally up
8 in the 5th circuit.
9 I don't typically do appellate work, so
10 I advise on the appellate issues, revise the briefs
11 and then talk to the people that are going to argue to
12 the Court of Appeals about issues.
13 Q. Have you presented CLE presentations on the
14 TCPA?
15 A. Yes.
16 Q. Are you familiar with rates in Tarrant
17 County?
18 A. Yes.
19 Q. Tell the Court how you are familiar with
20 rates in Tarrant County?
21 A. Well, first of all Wick Phillips has a
22 Fort Worth office, and it's had a Fort Worth office, I
23 think, since 2006 when Brant Martin opened that up.
24 And then David Drez came over from Haynes & Boone. I
25 have worked with the Haynes & Boone attorneys,
Tina Fett, CSR
#oof 13
1 specifically Steve Pezanosky as a senior -- he may be
2 still a managing partner at Haynes & Boone in
3 Fort Worth.
4 In preparation for this particular
5 testimony, in addition to talking to Mr. Drez about
6 Fort Worth Haynes & Boone rates, Wick Phillips rates,
7 which I can access, I also talked to a senior level
8 partner at Jackson Walker to determine what their Fort
9 Worth rates are.
10 And then I got additional data points
11 from Kelly, Hart & Hallman. Specifically I talked to
12 Jeff Whitfield, who is a younger partner over there,
13 and he was on the case called In Re: Lipsky that went
14 all of the way to the Texas Supreme Court on
15 anti-SLAPP.
16 I talked to Jamie Welton, who recently
17 had an attorney's fees award in Fort Worth in February
18 of 2019. He is at Barnes & Thornburg.
19 We are lucky enough to have several Fort
20 Worth associates that have come from good firms like
21 Whitaker & Chalk.
22 And I also want to mention Harris,
23 Finley & Bogle. Harris, Finley & Bogle was the firm
24 that did the Range Resources case that went up to the
25 Fort Worth Court of Appeals.
Tina Fett, CSR
#oof 14
1 I think that's it. And so I was able to
2 get a range of the fees, you know, kind of starting at
3 Harris Bogle all the way up to Jackson Walker, which
4 is the -- and Haynes & Boone, they're the top end of
5 fees.
6 Q. In determining a particular timekeeper's
7 rate and what would be a reasonable rate, what are
8 some of the factors that should be considered in
9 making that determination? And I'm just talking about
10 the rate at this point.
11 A. So the Supreme Court issued an opinion
12 called Rohrmoos Ventures. I think it's R-o-h-m-o-o-s,
13 a few months ago. And that kind of changed the game
14 with regard to how Texas attorney's fees are
15 determined.
16 Prior to that time when we all relied on
17 Arthur Andersen, its progeny, Rohrmoos says that there
18 are basically nine factors that come from the Texas
19 Disciplinary Rules, and you consider all nine of those
20 factors with the exception of the undesirability of
21 the particular text you are looking at, skill set of
22 the attorneys, novelty and complexity of the issue,
23 whether or not you took the case on a contingency, or
24 whether or not you deviated from your standard hourly
25 rates.
Tina Fett, CSR
#oof 15
1 Q. But in terms of coming to a reasonable
2 rate, certainly a 25-year lawyer could command a
3 higher rate than a first-year lawyer?
4 A. Obviously.
5 Q. And if someone had board certification or
6 not, that would go into factoring whether or not a
7 rate was reasonable?
8 A. That and if they had expertise in a
9 particular topic like the Texas anti-SLAPP.
10 Q. And, for example, experience in the topical
11 area can make a difference in the rate?
12 A. Yes.
13 Q. With respect to the timekeepers that have
14 billed time that forms the basis of your opinion
15 today, can you tell the Court the name of the
16 timekeeper, the rate, and why you believe, if you do,
17 that the rate for the timekeeper is reasonable?
18 A. Yes, I can do that. Would you like me to?
19 Q. Yes, I would like for you to.
20 A. Okay. Jeff Hellberg, which is you. You
21 are a 23-year lawyer, your rate is 650. That is at
22 the upper end. That's more consistent with a Jackson,
23 Walker rate or a Haynes & Boone rate, but it's a
24 little higher than you would get at Kelly Hart, and
25 I'm talking Fort Worth specific.
Tina Fett, CSR
#oof 16
1 Your rate is justified, in my opinion, because you are
2 kind of one of the foremost people in terms of arguing
3 Texas anti-SLAPP cases at the Court of Appeals. You
4 are also double board certified, which is part of the
5 reason why you have been here at some of the bigger
6 hearings, because you protect me on the back end with
7 your being both a trial lawyer and a board certified
8 appellate lawyer. So I don't need to bring any
9 separate lawyer when you and I try cases. You get to
10 protect all the appellate issues, and I just argue
11 with people. So that is why your rate is 650, and
12 even though there is only a four-year difference
13 between you and I, that's why I'm at 515, and
14 you're -- that's why there is that much a jump.
15 With regard to Jeff Mills, he is a
16 nine-year. His rate is 470. Ethan Minshull is an
17 eight-year, and his rate is 435. Zac Farrar is a
18 fifth-year, and his rate 395. Casey Erick, who is now
19 with Cowles and Thompson, formerly Kessler & Collins,
20 his rate is 275.
21 Andrea Perez was an associate at Kessler
22 Collins. She has now moved to Carrington & Coleman,
23 so her rate is between 275 and 300.
24 Q. Now, with respect to -- you mentioned the
25 Rohrmoos case, and under the Lodestar method, how do
Tina Fett, CSR
#oof 17
1 you calculate a reasonable fee now under Rohrmoos?
2 A. Okay. So there's a couple of different
3 ways you can do it. Some people take a blended rate
4 of all of the timekeepers and multiply that to get a
5 total number. So it's reasonable hours times
6 reasonable rates.
7 I do look at it differently in that I
8 am timekeeper specific. So for Lodestar once I
9 determine this is the reasonable hourly rate, we'll
10 take my rate, 515 an hour, and then how many hours
11 should I have spent on a particular case or a
12 particular activity, and then you multiply that out,
13 and you do that for each timekeeper.
14 And then you add it up, and then you --
15 under Rohrmoos you have to take an extra step, and the
16 extra step is called billing discretion or billing
17 judgment. Prior to Rohrmoos, that was not a
18 requirement.
19 Under Texas law, you see it in the
20 federal courts, but you don't see it in Texas. The
21 reason is when you're trying to shift attorney's fees,
22 so what I and my clients agree to is not what I can
23 shift off to a party under a fee-shipping provision.
24 So the Texas Supreme Court came out
25 with Rohrmoos and said if you are going to push this
Tina Fett, CSR
#oof 18
1 money off on to the loser in the lawsuit, one of the
2 things you have to do is go through and do a billing
3 judgment or billing discretion analysis to try and
4 eliminate excessive time, duplicative time, you know,
5 that type of thing, or time that wasn't properly spent
6 on recoverable issues. Sometimes you have a
7 segregation issue. We have had that in this
8 particular case.
9 Q. Okay. In your 19 years of practicing law,
10 are you familiar with tasks that are necessary to
11 perform to represent a client in litigation, and in
12 particular a TCPA motion?
13 A. That's a double question, a two-part
14 question, and the answer is yes to both.
15 Q. Okay.
16 A. Yes, I take cases from soup to nuts, all
17 the way through trial, and then I advise on appellate
18 issues at the end.
19 And with regard to TCPA, you never have
20 a trial, meaning there is never a jury in the box.
21 What we're doing today is about as far as you ever
22 have to take it, which is an attorney's fees and
23 sanction determination, and that can be done a number
24 of ways.
25 Q. Have you formed opinion as to what is
Tina Fett, CSR
#oof 19
1 reasonable fee would be in connection with the motion
2 to dismiss that is the subject of today's exercise?
3 A. I have.
4 Q. And in forming that opinion, did you base
5 it on, in part or in whole, on Exhibits -- what have
6 been admitted in Exhibits 3, 4, and 5?
7 A. Yes, and for the record I have Exhibits 3,
8 4, and 5 in front of me, which are the affidavits of
9 myself, Ms. Perez, and Mr. Erick, who I worked with on
10 this case.
11 Q. Before we get to the number, can you
12 describe for the Court how you arrived at that number
13 with respect to the reasonable fee?
14 A. So the rates charged on the invoices being
15 based on my analysis of market rates and rates both in
16 Dallas County and the Fort Worth level, these would be
17 reasonable rates for all of the timekeepers. I didn't
18 try to ask for an enhancement, although I would
19 certainly argue that Mr. Erick and Ms. Perez are
20 worthy of an enhancement, and they would be entitled
21 to it.
22 And then I have looked at the billing
23 records, and based on the billing records, I did
24 certain deductions to satisfy the billing discretion
25 analysis, which is Exhibit B to Exhibit 3 to my
Tina Fett, CSR
#oof 20
1 affidavit. Exhibit B is my billing discretion
2 determinations.
3 So if you look at Exhibit 3, you'll
4 notice that there's highlights on certain time
5 entries, and those are time entries that I went
6 through based on 19 years of litigation and six years
7 of TCPA work and said these need to be reduced for one
8 reason or another.
9 I did that calculation on an Excel
10 spreadsheet, tracked it, identified it by timekeeper.
11 And so if you look at that Exhibit B to my affidavit,
12 you can see the exact reductions that I have made to
13 meet the Rohrmoos billing discretion analysis.
14 After that it's just a function of math
15 as to our time sheets with regard to -- and then I
16 included Mr. Erick's and Ms. Perez's fees.
17 Mr. Erick's at Kessler Collins already
18 did his own business discretion analysis as he went
19 along. You see it in the form of no charge. So
20 there's a lot of things that he did that were no
21 charge to his client. And so those function the same
22 way, because he could have passed them along to his
23 client, but he didn't, and so we're not passing them
24 along to the nonmovant.
25 Q. Okay. Let me clarify something. In
Tina Fett, CSR
#oof 21
1 Exhibits 3, 4, and 5, it identifies a specific
2 timekeeper with a specific rate; does it not?
3 A. It does.
4 Q. Do you have an opinion as to whether or not
5 those particular rates for those times are
6 reasonable?
7 A. Yes.
8 Q. What is that opinion?
9 A. The opinion is it is based on the
10 discussion about Fort Worth rates, the discussion of
11 the factors that you can consider under Rohrmoos and
12 the Texas Disciplinary Rule.
13 Q. Okay. And with respect to the fees that we
14 are asking for today, that is an amount less than the
15 cumulative total if you add up all those fees,
16 right?
17 A. That's correct.
18 Q. Do those records indicate all of the fees,
19 meaning does it include time spent in November, for
20 example?
21 A. No.
22 Q. Do you have an opinion as to how much the
23 fees should be added to that to reflect time spent in
24 November of 2019?
25 A. I do.
Tina Fett, CSR
#oof 22
1 Q. All right. And prior to coming here today,
2 did you prepare a summary of the fees for your
3 testimony?
4 A. I did. All of the defendants did, and it's
5 contained in Exhibit 7.
6 Q. And as to your summary or your testimony,
7 that is contained on the last two pages of what has
8 been marked as Exhibit 7?
10 MR. HELLBERG: Your Honor, at this time
11 we would move to admit Exhibit Number 7, and in
12 particular the last two pages as a summary of
13 testimony as permitted under Rule 1006 as a summary of
14 an expert.
15 And, Your Honor, I will acknowledge
16 that the first couple of pages there has been no
17 testimony, but I anticipate testimony from the other
18 defendants to support that part; therefore, at a
19 minimum a conditional admission, but in particular the
20 last two pages.
21 MR. MARTINEZ: Your Honor, he
22 anticipated what my objection would be, which is there
23 is no foundation at all for anything but the last two
24 pages in this.
25 THE COURT: Can we just admit it after
Tina Fett, CSR
#oof 23
1 you put the rest of the foundation?
2 MR. HELLBERG: I'd like to ask him --
3 well, I can't set the foundation with this witness.
4 We've got other people. I've got it broken out. We
5 could mark it as 7A for just those last two pages.
6 THE COURT: Okay. Are you all right
7 with the last two pages?
8 MR. MARTINEZ: No objection to the last
9 two pages.
10 THE COURT: Okay. Exhibit 7A is
11 admitted.
12 (Defendant's Exhibit 7A admitted)
13 Q. (By Mr. Hellberg) Mr. Lemoine, in your
14 opinion, what is a reasonable fee -- you are familiar
15 with how the PJC breaks down fees, correct?
16 A. Yes, sir.
17 Q. So with respect to the fees through the
18 trial of the case, what is your opinion as to a
19 reasonable fee for the defendants we represent?
20 A. If you look on page 2 of Exhibit 7A under
21 the totals column, through October 31st it is
22 $271,923.80.
23 Q. And with respect to -- and that covers the
24 fees up through October 31st?
25 A. That's what I said.
Tina Fett, CSR
#oof 24
1 Q. And with respect to the November fees, tell
2 the Court how you arrived at the $11,250?
3 A. When I talked earlier about doing -- about
4 the rates, that's what I did, I made some assumptions
5 about the amount of time it would take in November to
6 file the attorney's fees brief, respond to any
7 particular issues that came up with regard to what the
8 plaintiff might do, prepare for this hearing, and get
9 up to speed, and so I made an assumption of $450 an
10 hour times 30 hours, which is based on kind of a split
11 between myself and Mr. Minshull.
12 Q. And in your opinion, is 450 a reasonable
13 rate for a blended rate?
14 A. Yes. He has applied all the same
15 discussion factors that we had earlier, and that would
16 be a -- that is more than a reasonable rate.
17 Q. And in your opinion is 30 hours a
18 reasonable amount of time for the services for
19 November?
20 A. It is. It's probably --
21 MR. MARTINEZ: Objection. There has
22 been no foundation laid whatsoever as to the details
23 of how he reached that 30 hours. All he said was how
24 much time I thought it would take to work on the
25 motion.
Tina Fett, CSR
#oof 25
1 THE COURT: Overruled.
2 Q. (By Mr. Hellberg) How did you arrive at
3 the 30 hours?
4 A. Well, I've been through these before, and
5 so I made some assumptions as to the complexity of the
6 attorney's fees that we were going to have to submit
7 the sanctions component of it, how much time I thought
8 it would take for briefing, an estimate that the other
9 side would file a brief, and we would have to review
10 that, the amount of time it would take you and I to
11 prepare for this and to follow up all the evidence and
12 particulars.
13 Q. So through the trial of the case, what is
14 the number that you are presenting to this Court as a
15 reasonable fee through the trial of the case?
16 A. On the second -- on page 2 of 7A where it
17 says final trial fees, the amount is $282,953.80, and
18 there is a reduction noted by footnote.
19 Apparently, we all allowed a fee for --
20 not this case, it was Mr. Erick, and there was a fee
21 in there for another case that he was dealing with
22 that somehow got categorized, and we just all missed
23 it, so I backed that out. It was $220.
24 Q. Now, Mr. Lemoine, you've handled a number
25 of prior TCPA motions, right?
Tina Fett, CSR
#oof 26
1 A. Correct.
2 Q. How does this fee compare to other motions
3 in the TCPA context in terms of amounts?
4 A. It's bigger.
5 Q. Can you explain to the Court why?
6 A. Sure. This case had a layer of complexity
7 to it that you don't typically see in a defamation
8 case. The first issue is that it primarily deals with
9 Twibel, which is the people's combination of Twitter
10 and libel. There is no real Texas case law on Twibel,
11 so you have to research outside of the state of Texas
12 for that further.
13 It was compounded by the fact that there
14 was something done in this case that I have never seen
15 done before. When you proceed under a liable case,
16 you have to include the entire context of the alleged
17 defamatory statement because it's a publication rule,
18 and the courts have uniformly said you have to have a
19 context to it.
20 Well, here we were dealing with
21 statements completely out of context with no
22 surrounding what the person was responding to, who
23 they were even talking about. At the depositions
24 there was 200 pages of Twitter posts put into
25 evidence -- or put into the deposition where you have
Tina Fett, CSR
#oof 27
1 the Twitter post and blanks all around it.
2 Well, that's not how Twitter works. The
3 response is to something. In order to determine
4 defamation, whether or not the statement was
5 defamatory, you have to know what the context is.
6 That is compounded by the fact that
7 people are no longer proud of what they wrote on
8 Twitter can make it disappear. And so we don't know,
9 and we'll never know what the context was around
10 several hundred pages of evidence that the plaintiff
11 tried to introduce. So that was the first issue.
12 The second issue is the concept of
13 whether or not a sexual predator being called that is
14 defamatory is not something that Texas case law has
15 addressed. The only case to address it that I have
16 been able to find is the Mogged, M-o-g-g-e-d, versus
17 Lindamood case. It's up on appeal to the -- it's
18 currently in the Texas -- or the El Paso Court of
19 Appeals, but the case actually originates out of
20 Fort Worth. And that's the only one that talks about
21 whether or not being called a sexual predator, you
22 know, is defamatory. So we had that particular issue.
23 Then we had the -- just within this, the
24 context of this particular argument, you had a fight
25 over public versus private distinction, because
Tina Fett, CSR
#oof 28
1 whether or not a person was either a public figure or
2 a limited public figure changes radically the standard
3 in which the Court evaluates defamation. So that was
4 a big fight and, you know, in those contexts there is
5 not always a lot of case law that is on point. So you
6 had to do that type of research.
7 We were hit with a battery of
8 evidentiary objections at every turn. This morning is
9 a good example. Right before we walked in, we got hit
10 with seven pages of every objection you can come up
11 with. And that was every evidentiary issue we had.
12 We were met with that.
13 We were met with continuances, things
14 that really drove up the cost. We had to fight harder
15 in this case than I've had to fight in most anti-SLAPP
16 cases.
17 The other thing that was unusual about
18 this case is that the plaintiff was actually put up
19 for deposition. I've never seen that before in the 15
20 cases that I've done in anti-SLAPP.
21 You never put the plaintiff up if you
22 don't have to. And so that added a layer of cost, but
23 it was really good for us, because we got to shut down
24 or flesh out the lack of support for the claims in the
25 case, and we were able to introduce that through a
Tina Fett, CSR
#oof 29
1 fairly complex anti-SLAPP motion.
2 Our anti-SLAPP motion in this case is
3 the most complex anti-SLAPP motion that I've ever
4 litigated before. There are a couple of unique issues
5 in that with regard to -- there is a Communications
6 Decency Act affirmative defense that has never been
7 ruled on in the state of Texas with regard to what is
8 called retweet liability, meaning I retweet something
9 that somebody else says, am I protected by the
10 Communications Decency Act.
11 There is a libel proof affirmative
12 defense that you rarely see in defamation cases.
13 There is a consent affirmative defense that you rarely
14 see in defamation cases. We also had some weird
15 vicarious liability issues.
16 In addition, we had some TCPA specific
17 issues, including a fight over whether or not we could
18 supplement the motion to dismiss. There is no case
19 law on it. So we had to pick a fight with the
20 other -- with the plaintiff over that.
21 We wanted to take discovery of Nick
22 Rekieta, who is an integral part of the case and
23 certainly a responsible third party if this case --
24 Q. Let me stop you for a second and talk about
25 that.
Tina Fett, CSR
#oof 30
1 There was a response filed yesterday
2 where they are critical of watching a whole bunch of
3 YouTube videos as to the time. Do these bills and
4 time reflect time watching a whole bunch of YouTube
5 videos?
6 A. No. In fact, I had to suffer through
7 those, but I didn't bill the client.
8 Q. Why not?
9 A. Well, you know, only one of us had to
10 suffer through that, and they shouldn't have to pay
11 for it, so I did it.
12 Q. Well, to be sure, you spent a whole lot
13 more time --
14 A. You want to know why I watched it, is that
15 what you're asking?
16 Q. Why -- well, no. Okay. Why?
17 A. The reason I did it is because it became
18 very apparent early on in this litigation that
19 somebody not associated with the defendants was
20 leaking information to Nick Rekieta, who is allegedly
21 an attorney out of Minnesota. He has a YouTube
22 channel. He goes on there and says any number of
23 terrible things about people involved in the case on
24 our side. He also discusses legal strategy and --
25 MR. MARTINEZ: Your Honor, he is
Tina Fett, CSR
#oof 31
1 getting into all sorts of facts and details that have
2 never placed by before the Court.
4 THE WITNESS: And so Mr. Rekieta would
5 actually say things that we would see showing up in
6 motions and in hearings.
7 I'll give you a good example. Right
8 before we argued the anti-SLAPP motion to dismiss,
9 Mr. Rekieta misunderstood a holding from one of the
10 Texas Supreme Court cases and went on his YouTube
11 channel, and he blabbered on about how this was a game
12 changer, which I believe was wrong.
13 He was talking about footnote 7 in the
14 KBMT case, which is dead wrong about what it meant.
15 So we were able to brief it. I believe the plaintiffs
16 had a white board that was sitting up there laid
17 against the wall that they were going to show that
18 particular KBMT footnote --
19 MR. MARTINEZ: Objection. Your Honor,
20 that calls for speculation.
21 THE COURT: Why do I care about this
22 YouTube stuff?
23 THE WITNESS: Because it drove the cost
24 up in this case.
25 THE COURT: It drove up your cost in
Tina Fett, CSR
#oof 32
1 the case?
2 THE WITNESS: Yes.
3 MR. MARTINEZ: Your Honor, if I may, he
4 testified a moment ago that he didn't bill for any of
5 those things, so how does it drive up cost if he
6 didn't bill it?
7 THE WITNESS: I didn't bill to watch
8 them. I did bill to deal with the legal aspects that
9 they were disclosing.
10 THE COURT: Why don't you tell me what
11 you billed for. Isn't that what I need to assess the
12 attorney's fees on, what you actually billed for?
13 THE WITNESS: Yes, sir. We have done
14 that.
15 THE COURT: Then why are doing this.
16 MR. HELLBERG: Your Honor, the only
17 point is that he spent a lot more time than what we
18 actually billed for, to show the reasonableness of the
19 rates that we actually billed for, and that is the
20 point of that testimony. I'm happy to move on.
21 THE COURT: Okay.
22 MR. MARTINEZ: If I can get a ruling,
23 Your Honor, on the objection.
24 THE COURT: Well, it's overruled. He's
25 moving on.
Tina Fett, CSR
#oof 33
1 Q. (By Mr. Hellberg) Mr. Lemoine, are you
2 familiar with the appellate process?
3 A. Yes, for all of the reasons I outlined
4 above, and I've worked with you for a decade.
5 Q. Okay. With respect to an appeal to the
6 intermediate Court of Appeals, do you have an opinion
7 as to what a reasonable fee would be for our
8 defendants in defending an appeal to the Fort Worth
9 Court of Appeals?
10 A. If I could speed this up a little bit, if
11 you look at 7A, page 2, there is a listing of the
12 appellate fees, and there's four levels of potential
13 conditional appellate fees that you are entitled to
14 under the TCPA.
15 And using the same analysis that I did
16 with regard to rates under Rohrmoos, what you
17 typically bill, how it is staffed with associates,
18 what you and I thought the hourly -- the amount of
19 time was, I came up with those rates.
20 And for an appeal to the Fort Worth
21 Court of Appeals, or whatever court of appeals gets
22 it, it's $55,000, which is $500 an hour times 110
23 hours.
24 Q. And in your opinion the $500 an hour is a
25 reasonable blended rate?
Tina Fett, CSR
#oof 34
1 A. Yes.
2 Q. And the 110 hours is a reasonable amount of
3 time?
5 Q. Okay. If you could do that for all --
6 A. So with regard to each of the other phases,
7 petition for review, and if the Supreme Court -- the
8 other side files a petition for review and the Court
9 wants to hear your side, they tell you to brief, and
10 for that -- that is one phase.
11 And then if the Court wants to hear the
12 argument, then you have a merit phase, and then if the
13 Court still wants to hear you argue, then you have an
14 oral argument phase.
15 So reasonable and necessary fees,
16 applying the same standards to get to the Lodestar
17 reasonable rate, then you do an hour calculation for
18 petition review, it's $500 an hour times 25 hours; for
19 merits briefing, $500 an hour times 45 hours; for oral
20 argument $500 an hour times 30 hours.
21 So if we were successful in each stage,
22 assuming there is an appeal, then those are the
23 numbers and the math is done on page 2 of 7A.
24 Q. And in forming your opinion as to the
25 number of hours reflected on 7A, did you confer with
Tina Fett, CSR
#oof 35
1 our partner, David Drez, with respect to that?
2 A. Yes, he has been to the Texas Supreme Court
3 for oral argument on a couple of cases recently, so
4 that helps us with determining the amount of time you
5 would need for that particular issue, because it's a
6 big deal if you get to do that.
7 Q. Okay. With respect to costs and expenses,
8 have you formed an opinion as to what reasonable cost
9 and expenses are in this case?
10 A. Yes. So the expenses are all attached to
11 Exhibits 3, 4, and 5, and then we have another
12 Exhibit 6 that we need to introduce.
13 But once that is introduced, and you can
14 look at them, they're all broken out, and we tried to
15 break them out somewhat on 7A, so it's reasonable and
16 necessary costs incurred with regard to this
17 particular case. So we had deposition fees and costs,
18 which I'm familiar with because I have been doing this
19 for 19 years. We had Westlaw research costs, we had
20 parking costs, we had a mediation cost.
21 We had to get witness affidavits around
22 the country, the affidavits for the motion to dismiss,
23 so those were all bathed into defending this case and
24 presenting the motion to dismiss. And so in my
25 opinion, those are reasonable and necessary.
Tina Fett, CSR
#oof 36
1 And the total amount is 15,526.96, page
2 2, 7A, the calculation is done. The supporting
3 documents are contained in Exhibits 3, 4, and 5, and
4 now you're going to get me to introduce Exhibit 6.
5 Q. Mr. Lemoine, what is Exhibit 6?
6 A. Exhibit 6 consists of two invoices that
7 came in after we had submitted the briefing on
8 November 4th. One of them -- both of them we just
9 didn't see until somebody brought them up to us later.
10 The first part of Exhibit 6 is he deposition
11 transcript cost for CSI --
13 he hasn't offered the exhibit to go into detail as to
14 what it is.
15 THE COURT: Well, he's reading from it.
16 He can tell me what it is. I don't even know what
17 your -- what's your objection?
18 MR. MARTINEZ: It's hearsay.
19 THE COURT: Okay. Overruled.
20 MR. HELLBERG: So a formal move to
21 admit.
22 THE COURT: That's 6?
23 MR. HELLBERG: Move to admit Exhibit 6.
24 MR. MARTINEZ: I'll object to hearsay,
25 Your Honor. There is no business records affidavit
Tina Fett, CSR
#oof 37
1 for it, and it was not included as part of the
2 business records affidavit in their original
3 pleadings. We would object to it being admissible.
4 MR. HELLBERG: Your Honor, it is a
5 document that is relied upon by this expert to form
6 opinions as to what a reasonable fee is. Therefore,
7 an expert is going to rely upon hearsay evidence.
8 THE COURT: Does that make it
9 admissible that they relied on it?
10 MR. HELLBERG: He can testify about it.
11 That doesn't mean it necessarily comes in, but he can
12 certainly testify to the contents of the document.
13 THE WITNESS: I can also lay a business
14 record predicate.
15 MR. MARTINEZ: I object, Your Honor, to
16 the witness --
17 THE COURT: All right. He can say how
18 much the deposition cost.
19 So, sustained.
20 Q. (By Mr. Hellberg) Mr. Lemoine, what were
21 some of the deposition costs that were incurred with
22 respect to this matter?
23 A. So with regard to the deposition of
24 Mr. Mignogna Courtroom Sciences billed us $2,228.10.
25 Q. And is that number included in the 15,000
Tina Fett, CSR
#oof 38
1 or is it in addition to?
2 A. It's included.
3 Q. It's included?
4 A. Yes.
5 Q. Okay.
6 MR. HELLBERG: I pass the witness.
7 THE WITNESS: Ask me about the second
8 page.
9 THE COURT: That's really weird. You
10 don't get to tell him what to ask you. That's not how
11 this works.
12 THE WITNESS: Sorry, Judge.
13 MR. HELLBERG: Are there other --
14 THE COURT: You can sit.
15 MR. HELLBERG: All right.
16 CROSS-EXAMINATION
17 BY MR. MARTINEZ:
18 Q. Mr. Lemoine, I have some questions for you.
19 You testified earlier that you researched into the
20 range of hourly fees for different attorneys within
21 the Tarrant County area?
22 A. Yes, sir.
23 Q. What was that range for associates that you
24 found exactly, what was the bottom to the top?
25 A. Bottom is probably in the 250 range,
Tina Fett, CSR
#oof 39
1 depending on the age. I think our lowest one was
2 probably five or six years, and the top was probably
3 350 to 365.
4 Q. The top was 350 to 365. What was the
5 hourly rate of the associate that you put on this
6 case?
7 A. Which one?
8 Q. Specifically Mr. Minshull.
9 A. So Mr. Minshull is 345.
10 Q. So $85 an hour higher than the top rate you
11 found in Tarrant County?
12 A. In Tarrant County, yes -- well, no, that's
13 not true. With Jackson Walker and Haynes & Boone, the
14 attorneys are the same as Mr. Minshull. You asked me
15 for the bottom.
16 Q. Actually I asked you bottom to top and you
17 said the top was 350.
18 A. Oh, then I was wrong. The top for an
19 associate in Mr. Minshull's range at Jackson Walker or
20 Haynes & Boone is going to be comparable, but that is
21 the high end. For instance, a 2000 up third year at
22 Jackson Walker comes in at 365.
23 Q. Now, when did your firm file notice of
24 appearance in this case?
25 A. The day I took Mr. Mignogna's deposition.
Tina Fett, CSR
#oof 40
1 Q. Had your firm been working on this case
2 prior to that?
3 A. Yes.
4 Q. Approximately when did your firm -- when
5 was your firm retained?
6 A. The first -- retained or billed? Retained
7 would have been in April. I think billed was is April
8 as well, if you look at Exhibit 2.
9 Q. How many hours did you spend in the actual
10 deposition for Mr. Mignogna?
11 A. So that would be -- we started at 9:00. I
12 would have showed up about 8:30. Well, actually, it
13 started late. I would have showed up for it about
14 8:30 or 9:00, and we, I think, left at 5:30.
15 Q. So was there a lunch hour?
16 A. There was.
17 Q. And breaks in between as well?
18 A. There were.
19 Q. Would it be a fair statement to say it was
20 just under six hours?
21 A. I mean, you could look at the deposition
22 transcript and it will have the actual time on it.
23 Q. So if I was to represent to you that it was
24 just under six hours --
25 A. I wouldn't disagree with that at all.
Tina Fett, CSR
#oof 41
1 THE COURT: We could look at Exhibit 6
2 that you didn't want in, and it will tell you how long
3 it was.
4 MR. MARTINEZ: Your Honor, that would
5 be fine.
6 Q. (By Mr. Martinez) As part of your billing
7 in May and June, there are various entries -- in
8 looking at the June bills specifically for now, for
9 the preparation of Mr. Mignogna's deposition, in fact,
10 in looking at this, over 60 hours was spent preparing
11 for Mr. Mignogna's deposition.
12 A. I don't know if you are correct. If you
13 are representing to me that that's correct, I'll
14 accept that representation.
15 Q. Is it usual for you to spend 10 times the
16 amount of a deposition to prepare for a deposition?
17 A. Yes, of course, especially when you get a
18 shot at a plaintiff in a defamation case and he goes
19 first. That's a kill shot opportunity.
20 Q. So speaking to that, you said that the
21 plaintiff was offered. Who noticed Mr. Mignogna's
22 deposition?
23 A. Well, I'm mistaken, Mr. Erick noticed him
24 up in response to the filing and the discovery.
25 Q. So Mr. Mignogna's counsel did not offer him
Tina Fett, CSR
#oof 42
1 up for deposition?
2 A. That's correct. He allowed him to be.
3 Q. Have you ever made any public statements
4 about this case, tweets?
5 A. Well, I tweet all the time, but my -- but I
6 wouldn't call it public, because I have to keep my
7 Twitter closed because of all of Mr. Mignogna's
8 friends.
9 MR. MARTINEZ: Object as nonresponsive,
10 Your Honor.
12 Q. (By Mr. Martinez) Have you issued any
13 tweets regarding this case?
14 A. Some, yes.
15 Q. Have you ever tweeted specifically about
16 the GGoFundMe?
17 A. All the time.
18 Q. Have you ever made any tweets stating that
19 your goal was to go after the GoFundMe account as part
20 of your attorney's fees and sanctions?
21 A. No.
22 MR. HELLBERG: Objection, Your Honor.
23 Best evidence.
25 Q. (By Mr. Martinez) What were the tweets you
Tina Fett, CSR
#oof 43
1 made regarding the GoFundMe account?
2 A. When?
3 Q. What was the first one?
4 A. I have been tweeting the amount for over a
5 month.
6 Q. How much is the amount, to your knowledge,
7 at this time?
8 A. I believe it is $261,700.
9 Q. So within just a few thousand dollars of
10 the total attorney's fees you are claiming?
11 A. No. You are off by about $20,000.
12 Q. Within 10 percent, then?
13 A. If your math is right, sure.
14 Q. In reviewing your invoices, you mentioned
15 earlier that the Court, the Supreme Court and the
16 Rohrmoos case, requires that the analysis be for the
17 work to be both reasonable and necessary, as it
18 relates to the fees being billed?
19 A. To the number of hours.
20 Q. The number of hours?
21 A. Yes, correct.
22 Q. Is it also true, then, that it has to be
23 necessary to the defense of the case or the
24 prosecution of the case?
25 A. Yes, that is how the statute reads.
Tina Fett, CSR
#oof 44
1 Q. So on October 4th, just take for example --
2 A. Okay. Hold on a second. So your Exhibit
3 3A?
4 Q. Exhibit 3A.
5 A. Gotcha.
6 Q. On October 4th, it's the fifth entry. It
7 states 2.6 hours, research and analyze cases
8 concerning sanctions in context of bad faith
9 mediation, review and analyze rules and cases
10 concerning statutory deadline for ruling on TCPA
11 motion and analyze order granting TCPA motion to
12 dismiss.
13 THE COURT: What is that you're looking
14 at?
15 MR. MARTINEZ: 3A, Your Honor.
16 THE COURT: What page?
17 MR. MARTINEZ: They're not marked with
18 page numbers, Your Honor. It's billing through
19 October 31st of 2019.
20 THE COURT: Okay.
21 MR. MARTINEZ: November 3, 2019.
22 THE COURT: Okay.
23 Q. (By Mr. Martinez) It has a note on it that
24 says dragon. What is that?
25 A. That is our internal name for the case.
Tina Fett, CSR
#oof 45
1 That's short for dragon ball.
2 Q. Now, on October 4th had this Court already
3 issued its ruling as it related to the TCPA motion?
4 A. It issued it about 11:30 on October 4th.
5 Q. And on October 7th, three days later, you
6 have a billing entry for 1.2 hours to monitor
7 harassment and abuse of clients following the
8 dismissal.
9 A. I do, but the highlight on the left hand
10 indicates a reduction, so we would have to look at
11 Exhibit B to see what the reduction is, but yes.
12 Q. So if we go to Exhibit B.
13 THE COURT: Real quick. On that
14 October 4th, you are kind of trying to treat yourself
15 as a TCPA expert. Why did you need to review cases
16 concerning the deadline for ruling on TCPA motions if
17 you are this expert?
18 THE WITNESS: Well, one, Judge, that's
19 not me. That's my associate.
20 THE COURT: Why do we have to pay for
21 your associate that doesn't know what he's doing when
22 you already know it.
23 THE WITNESS: Well, I guess the first
24 answer is I don't already know it, because we had to
25 research it, that's the Hollis versus Propath research
Tina Fett, CSR
#oof 46
1 that we had to do because there was already rumblings
2 from the online community that they were going to
3 immediately appeal and try to shut down attorney's
4 fees. So we --- I just had him look at it to make
5 sure we didn't lose jurisdiction.
6 THE COURT: Okay.
7 Q. (By Mr. Martinez) Looking at this invoice
8 going back to the October 4th time entry, is there any
9 way for the Court to determine how much time was spent
10 identifying that statutory deadline for ruling on the
11 TCPA motion, or was this a block note?
12 A. They're all block notes.
13 Q. So under your understanding you testified
14 that you're an expert on fees. If things are included
15 in the bill that should not have been passed on to the
16 other side needed to be segregated, for example, and
17 the fees are all block billed, is there any way for
18 the Court to determine and to parse based on the
19 information provided how much to allocate to each
20 individual?
21 A. Well, if you have to have a segregation
22 analysis, no, there is not.
23 Q. So reviewing or portraying yourself as an
24 expert and having someone review what a deadline would
25 be on there to take theoretically 1. -- I'm sorry, 2.6
Tina Fett, CSR
#oof 47
1 hours, how do we determine or how should the Court
2 determine what, if any, of that 2.6 should be
3 allocated in that?
4 A. Well, first of all, that's not all he did,
5 so I reject the premise of your question. But if you
6 want to know the amount of time that it took him to
7 figure that out, I would say it probably took him --
8 Q. I asked how should the Court -- what
9 information does the Court have in front of him at
10 this point to make that determination? Does the Court
11 have anything available to him, based on the testimony
12 you provided and the documents that you provided to
13 make that determination?
14 A. No, the Court has to determine whether or
15 not the 2.6 in its entirety --
16 MR. MARTINEZ: Objection.
17 Nonresponsive, Your Honor.
19 Q. (By Mr. Martinez) So looking at Exhibit B
20 to your declaration. This is invoice number 106647.
21 I'm sorry, 111790.
22 A. Okay.
23 Q. You said October 7 has a reduction. How
24 much time did you reduce?
25 A. I reduced it by 0.5.
Tina Fett, CSR
#oof 48
1 Q. So can you explain to the Court how monitor
2 harassment and abuse of clients and research and
3 analyze availability of sanctions, how did you
4 determine exactly that specific reduction?
5 A. Because I have an idea of how much time you
6 should spend on researching and analyzing availability
7 of sanctions.
8 Q. So your testimony is that you have an idea
9 of how much time he should have spent?
10 A. Yes.
11 Q. Do you have any firsthand knowledge of how
12 much time was actually spent?
13 A. No.
14 Q. So at least as it relates to this October
15 7th block bill, you have no knowledge of how much time
16 was actually spent out of this 1.2 hours monitoring
17 harassment and abuse versus researching and analyzing
18 availability of sanctions?
19 A. No, that's why I did a 0.5 reduction.
20 Q. Now, does the TCPA have any language in it
21 related to the award of sanctions pursuant to the
22 granting of a motion to dismiss for TCPA?
23 A. If I understand your question correctly,
24 27.009, I think it's B is the sanction component and A
25 is the attorney's fees component.
Tina Fett, CSR
#oof 49
1 Q. So the TCPA expressly states that sanctions
2 are available?
3 A. Yes.
4 Q. So it's your testimony that a reasonable
5 and necessary fee under, at least as it relates to
6 this November 7th deal, is seven-tenths of an hour to
7 determine whether sanctions are available when they're
8 expressly spelled out under a statute that you claimed
9 you're an expert and that you blog about?
10 A. No, that's not what I'm saying. That's not
11 what he's researching. He's researching --
12 Q. It's stating --
13 A. -- what is available in this context.
14 Q. The research states: Research and analyze
15 availability of sanctions.
16 A. Yes.
17 Q. So the document speaks for itself. If you
18 are researching the availability of sanctions and the
19 sanctions are expressly allowed under the statute, how
20 is that a reasonable or necessary expense?
21 A. Because he's not researching whether or not
22 the statute says sanctions are available, he's
23 researching specific cases.
24 Q. So your testimony is that you know what he
25 did as opposed to what he documented that he did.
Tina Fett, CSR
#oof 50
1 A. Well, I told him what to do, so yes.
2 Q. So the documentation is inaccurate?
3 A. No, you just are reading it inaccurately.
4 Q. Could you read everything after the
5 semicolon?
6 A. Research and analyze availability of
7 sanctions.
8 Q. Sanctions are available under TCPA,
9 correct?
10 A. Yes.
11 Q. Thank you.
12 On October 29th, the next page, page 4
13 of 5, same invoice, you have -- and this is another
14 one that was reduced some, so we can check that.
15 Draft and revise motion to compel Slatosch deposition.
16 A. I'm with you.
17 Q. 3.6 hours, correct?
19 Q. Can you look at Exhibit B. You said
20 anything with a highlight is reduced?
21 A. I missed a reduction.
22 Q. So there was no reduction?
23 A. Oh, I misspelled it. 10-26 is 10-29.
24 There is no highlight for 10-26 in Exhibit A.
25 Q. There is no entry for 10-26.
Tina Fett, CSR
#oof 51
1 A. That's correct. I fat-fingered the 6
2 instead of a 9.
3 Q. So the document is not accurate?
4 THE COURT: When you say you
5 fat-fingered the 6 as a 9, I guess you have a --
6 you're talking about a keyboard.
7 THE WITNESS: Right, I'm on the
8 keyboard and I hit a 6 instead of 9.
9 THE COURT: Okay. I got you.
10 THE WITNESS: And so, you're right, it
11 is inaccurate. There is no invoice entry for 6 and
12 there is a highlight for 29.
13 Q. (By Mr. Martinez) Now, going to
14 specifically the work that was done that day, the
15 purpose of the attorney's fees are to prosecute the
16 case itself. The deposition and the motion to compel,
17 redact and revise the motion to compel for the
18 deposition, this Court as it sits so far has
19 determined that that was an improper discovery
20 request.
21 MR. HELLBERG: Objection, Your Honor.
22 That mischaracterizes the --
23 THE COURT: I don't know if that's what
24 I said, but I didn't grant his motion.
25 Q. (By Mr. Martinez) The Court granted a
Tina Fett, CSR
#oof 52
1 motion quashing the deposition for protective order?
3 Q. So in that regard, any work related to that
4 which was done after, we would contend, after the
5 close of discovery, how does that further the
6 prosecution of the TCPA case?
7 A. Well, it furthers the prosecution of the
8 sanctions component. I mean, we lost, but that
9 doesn't mean that it wasn't reasonable and necessary.
10 Q. How much did you reduce that for, that
11 specific entry?
12 A. One hour.
13 Q. I'm sorry?
14 A. One hour.
15 Q. One hour.
16 You made mention of looking at what
17 Mr. Rekieta allegedly has been doing online. You said
18 he has a blog. I guess he's reporting things, is that
19 what you said?
20 A. He has a YouTube channel. But I wouldn't
21 call what he does reporting.
22 Q. So did your firm ever take any action or
23 file anything related to Mr. Rekieta or try to depose
24 him to try to --
25 A. Yes.
Tina Fett, CSR
#oof 53
1 Q. What did your firm do?
2 A. We filed a motion to -- well, we filed a
3 notice of intent to subpoena. Before we ever even
4 served the subpoena it was quashed. In response to
5 the motion to quash, we filed a motion to compel
6 discovery.
7 Q. And where was that done?
8 A. Here in Fort Worth in this Court.
9 Q. Okay.
10 A. And then we never got it set for hearing
11 because the TCPA stay was in effect, and part of that
12 motion was a motion to determine if the stay applied
13 to us because we had not filed a TCPA motion, which is
14 a gray area. And then we just ultimately decided not
15 to pursue it at that time.
16 Q. It's a gray -- you say it's a gray area.
17 Are you saying that there was no case law related to
18 that at this point?
19 A. There is no case law that discusses when
20 Mr. Volney at Funimation files a TCPA motion, does
21 that automatically prevent all of the other defendants
22 who did not file it and who are being sued by the
23 plaintiff, meaning that case won't be stayed if
24 there's a denial, or the actions still lie between
25 parties that don't have TCPA in place.
Tina Fett, CSR
#oof 54
1 Q. So to the best of your knowledge no court
2 has ever considered that question?
3 A. To the best of my knowledge, no. I could
4 have missed something. There is over 400 TCPA cases.
5 Q. On invoice number 110397 --
6 A. What's the date?
7 Q. Invoice through September 30th, 2019.
8 A. Okay. What page?
9 Q. Page 1.
10 A. Okay.
11 Q. Specifically September 17th, 2019.
12 A. Yes.
13 Q. Can you read everything after the
14 semicolon?
15 A. I can. All right. I read it.
16 Q. Can you read it out loud, please.
17 A. Oh, I'm sorry. Prepare for and attend
18 hearing with client, pursue strategy re. mediation and
19 D. Seidler; confer re. death threat issues.
20 Q. And who is JSL?
21 A. That's me.
22 Q. Now, Mr. Lemoine --
23 A. It's Lemoine.
24 Q. I'm sorry?
25 A. It's Lemoine.
Tina Fett, CSR
#oof 55
1 Q. Lemoine, my apologies.
2 A. Okay. I know you're not doing it on
3 purpose.
4 Q. No. My apologies, sir.
5 You also reduced this invoice.
6 A. I did.
7 Q. By how much?
8 A. One hour.
9 Q. What was your reasoning for reducing it by
10 an hour?
11 A. Because me having to deal with the death
12 threats that are caused by what is being said about
13 this case outside the courtroom has nothing to do with
14 defending the TCPA motion, so I can't pass it along to
15 your side.
16 Q. So dealing with things that happen outside
17 the court has nothing to do with -- death threats
18 outside the court have nothing to do with this?
19 A. Death threats, yes, but dealing with things
20 outside, no, in general, I wouldn't agree with that.
21 Q. Now, on that same invoice, page 2,
22 September 30th.
23 A. Yes.
24 Q. EAM, the fourth line down, that's a
25 redaction. It just states client communications.
Tina Fett, CSR
#oof 56
1 Prepare for mediation.
2 A. Yes.
3 Q. Would you agree with me that one of the
4 requirements the Texas Supreme Court has laid out is
5 that although you are allowed redactions, the details
6 within the bill still have to be sufficient for the
7 Court to determine whether that specific activity is
8 something that can be billed?
9 A. I don't know if the Texas Supreme Court has
10 said that, but I would agree generally with your legal
11 proposition, yes.
12 Q. So from that perspective, the -- if you
13 agree generally with that proposition, how, if you
14 redact everything other than communication, can we --
15 can the Court determine that billing entry is pursuant
16 to furthering the TCPA?
17 A. There's two ways. One of the ways is on
18 some redactions I just, because of the redaction I
19 make a reduction, and you'll see that on some of my
20 line entries.
21 Q. That is not on this one, though, correct?
22 A. You're right. The other way is we brought
23 the unredacted version so that we could submit it in
24 camera to the extent you're raising that issue. So we
25 have brought the unredacted versions and the judge can
Tina Fett, CSR
#oof 57
1 review them and can make those determinations.
2 Q. You talked about it a couple of different
3 times, and you pontificated, I guess, that Mr. Rekieta
4 was a target of your review as it related to this
5 case, or you researched and watched videos from
6 Mr. Rekieta, because you felt he was somehow involved.
7 Am I characterizing your testimony correctly?
8 A. I watched Mr. Rekieta because he tells us
9 what the plaintiff's legal counsel is thinking,
10 otherwise I would not watch him.
11 Q. So Mr. Rekieta has no connection -- it's
12 your opinion Mr. Rekieta has no connection formally to
13 the case; is that correct?
14 A. No, that's not my opinion at all. I think
15 he's Mr. Beard's agent. I think he's
16 Mr. Mignogna's --
17 Q. Do you have any evidence whatsoever to
18 establish that?
19 A. Yes.
20 Q. Has it been placed before the court
21 already?
22 A. No. Well, I mean yes, but not in this
23 hearing.
24 Q. So you say yes but not in this hearing.
25 Prior to this hearing, what evidence has been admitted
Tina Fett, CSR
#oof 58
1 by the Court that would establish that Mr. Rekieta is
2 an agent of Mr. Beard?
3 A. Well, I don't know if it's a -- if you
4 would call it an agency relationship, but we have
5 admitted the --
6 Q. So there is no evidence whatsoever that has
7 been submitted to the Court and admitted by the Court
8 that Mr. Rekieta is an agent of Mr. Beard?
9 A. I think that's fair.
10 Q. So your statement of your belief that
11 Mr. Rekieta is an agent has no foundation whatsoever
12 as it relates to, at least, evidence that's been
13 submitted to the Court?
14 A. If you're talking about evidence introduced
15 to the Court --
16 Q. Yes.
17 A. -- I guess I'm going to say yes.
18 Q. Yet despite the fact that there is no
19 evidence that's been submitted to the Court showing
20 that Mr. Rekieta is an agent or has any other
21 connection whatsoever to this case, you are billing,
22 for example, July 3rd, 2019 in the July bill, and
23 another one would be the time that you filed the
24 motion to -- or the attempt to subpoena Mr. Rekieta,
25 your bill is replete with things that are attempting
Tina Fett, CSR
#oof 59
1 to charge as reasonable and necessary attorney's fees,
2 review of things or research into things, background
3 research specifically on July 3rd into Mr. Rekieta and
4 you are attempting to say that those are reasonable
5 and necessary fees?
6 MR. HELLBERG: Objection. Compound.
7 THE COURT: Overruled. If he can't
8 understand a question, he can ask him to rephrase it.
9 THE WITNESS: Yes.
10 Q. (By Mr. Martinez) And your testimony is
11 that that furthers -- that researching a third party
12 who has no connection to the case, at least as it
13 relates to evidence submitted to the Court, is a
14 necessary fee for prosecuting a TCPA motion?
15 A. I disagree with the internal predicate that
16 you're making, which is that it has to be submitted to
17 the Court to be necessary.
18 The fact that I haven't submitted
19 evidence to the Court doesn't mean it's not necessary
20 to the defense of the case.
21 Q. Throughout your billing there are various
22 examples --
23 MR. MARTINEZ: And, Your Honor, if I
24 may, I'm not going to point to the Court each
25 individual one.
Tina Fett, CSR
#oof 60
1 Q. (By Mr. Martinez) I'll simply represent
2 that there are various examples of times where you
3 coordinated or conducted phone calls and things like
4 that with other defense counsel outside of your firm.
6 Q. The details of which were, from what I was
7 able to gather here, putting together a strategy on
8 how to move forward and things of that regard, and
9 trying to, I guess, compare notes so to speak; is that
10 a fair statement?
11 A. Are you ready for an answer?
12 Q. Yes, sir.
13 A. The answer is yes, in part.
14 Q. One of the requirements under the Rohrmoos
15 is that there is no duplication of efforts.
16 A. Yes.
17 Q. Or that the duplication is limited.
18 A. Yes.
19 Q. Duplicative efforts is something the Court
20 should consider in reduction?
21 A. Yes, that is correct.
22 Q. So in this instance where, for example, you
23 would work with opposing counsel to duplicate efforts
24 and research and things of that regard, should the
25 Court consider that as part of its reduction?
Tina Fett, CSR
#oof 61
1 A. No, because it's the opposite of
2 duplicating efforts. It's to not duplicate efforts.
3 Q. Okay. Would -- speaking of duplication
4 fees, on June 26th, the deposition of Mr. Mignogna,
5 who attended that deposition in person?
6 A. Me, Mr. Erick on behalf of Ms. Rial and
7 Mr. Toye --
8 Q. I'm sorry, from your side?
9 A. Yes, Mr. Minshull was on video, it was
10 transmitted through the Internet, so he was there.
11 Q. So Mr. Minshull on video was billing nine
12 hours -- or seven hours to watch the deposition?
14 Q. How did that add to the presentation of the
15 deposition when he wasn't even in the room?
16 A. It didn't.
17 Q. So that would be duplicative, would it
18 not?
19 A. Well, that's why I reduced it by four
20 hours.
21 Q. So three hours is not duplicative, though,
22 to watch it? It doesn't add anything, so three hours
23 is okay, but seven isn't.
24 A. Yes. But you'd have to ask what he was
25 doing.
Tina Fett, CSR
#oof 62
1 Q. I'm sorry?
2 A. You'd have to ask what he was doing and why
3 I was billing that.
4 MR. MARTINEZ: I'll pass the witness,
5 Your Honor.
6 THE COURT: You are not bringing up new
7 stuff. Do you have something you want to ask him
8 other than new stuff?
9 MR. HELLBERG: Yes, Your Honor.
10 THE COURT: Okay.
11 REDIRECT EXAMINATION
12 BY MR. HELLBERG:
13 Q. What was he doing? What was Mr. Minshull
14 doing?
15 A. He was sending me notes throughout the
16 deposition of things that I was missing and documents
17 that I needed to pull out and areas of the case that
18 Mr. Minshull knew much better than I did at the time.
19 Q. With respect to the fees that you are
20 seeking here and addressing the points that were
21 raised in cross, does that fall within billing
22 discretion?
23 A. Yes.
24 Q. Did you exercise billing discretion when
25 submitting the prior testimony?
Tina Fett, CSR
#oof 63
1 A. Yes.
2 MR. HELLBERG: I pass the witness.
3 MR. MARTINEZ: Nothing further.
4 THE COURT: How many depositions were
5 taken?
6 THE WITNESS: Three.
7 THE COURT: And how many hours was that
8 approximately?
9 THE WITNESS: Well, I --
10 THE COURT: Were they all six?
11 THE WITNESS: I didn't -- I would
12 assume so. I didn't attend the others.
13 THE COURT: Okay. So maybe 18 hours of
14 depos.
15 How many things of substance have you
16 actually filed with the Court? You filed an answer,
17 which is probably not a big deal. You filed a motion
18 to quash, which isn't really a big deal. You filed a
19 TCPA motion to dismiss, and I appreciate that one.
20 That's a real motion. What else did you file?
21 THE WITNESS: There was a supplement.
22 And then we had to file, if the Court recalls, the
23 binders we sent that -- before the hearing. It was
24 like four different binders.
25 THE COURT: Yes, you had like evidence
Tina Fett, CSR
#oof 64
1 and stuff from the Internet, right?
2 THE WITNESS: Right. Well, no. Sorry.
3 Yes, but that was in terms of what did you file. So
4 there was the motion itself to dismiss, the
5 supplement, then we had to file a reply, then we
6 had -- we were responding to all the objections they
7 lodged to our evidence, all the evidence we lodged
8 against theirs. You had the notary fraud issue. You
9 had the new anti-SLAPP -- or the new pleading that
10 they filed, the second amended petition three days
11 before the hearing that we had to deal with.
12 THE COURT: If I give you zero money in
13 attorney's fees, are you going to make Ms. Rial pay
14 you $282,000 for basically, I don't know, six months
15 of a lawsuit?
16 THE WITNESS: Yes.
17 THE COURT: And you are charging $435
18 for somebody that doesn't know much about TCPA to work
19 on this case that he's got to go look it up? That
20 seems kind of high. It doesn't really seem worth it
21 if he can't do it without having to look everything
22 up.
23 THE WITNESS: Well, not to anger the
24 Court, but that's -- he wasn't looking up the statute
25 to see whether or not sanctions were available. He
Tina Fett, CSR
#oof 65
1 was reading cases about the fact pattern, because it
2 was --
3 THE COURT: Are you calling another
4 witness here?
5 THE WITNESS: Me?
6 THE COURT: Yes.
7 THE WITNESS: No.
8 THE COURT: So you've got no evidence
9 of anything with regard to sanctions.
10 THE WITNESS: Oh, am I --
11 THE COURT: What part do you not
12 understand about are y'all calling another witness?
13 THE WITNESS: I didn't know if you were
14 talking to me or Mr. Volney. I'm calling
15 Mr. Mignogna, yes, Judge.
16 THE COURT: All right. You can step
17 down.
18 Why don't we take a break. David has
19 to be somewhere at noon. And let's be back -- we'll
20 start back at 1:00.
21 (Recess taken)
22 MR. LEMOINE: Your Honor, at this time
23 we call Mr. Mignogna to the stand.
24 (Witness sworn)
25 VICTOR MIGNOGNA,
Tina Fett, CSR
#oof 66
3 BY MR. LEMOINE:
4 Q. Would you state your name for the record.
5 A. Victor Mignogna.
6 Q. Mr. Mignogna, how old are you?
7 A. 57.
8 Q. Would you turn to Exhibit 8. And it's also
9 going to be on the screen in front of you,
10 Mr. Mignogna.
11 A. Okay.
12 Q. This is the lawsuit that you authorized to
13 be filed on April 18th, 2019, isn't it?
14 A. I guess so, if you're saying so.
15 Q. Have you ever seen the lawsuit that you
16 authorized your attorneys to file in this lawsuit?
17 A. Do you mean have I read through it?
18 Q. Yes.
19 A. No, sir.
20 Q. So you didn't do anything to verify the
21 facts in that lawsuit?
22 A. I trusted my attorney.
23 MR. LEMOINE: Judge, at this time I
24 would move to admit Exhibit 8 into evidence.
25 THE COURT: I assume it's in the file.
Tina Fett, CSR
#oof 67
1 MR. MARTINEZ: It's part of the file,
2 yes.
3 THE COURT: Okay. It's admitted.
4 (Defendant's Exhibit 8 admitted)
5 Q. (By Mr. Lemoine) If you would turn to
6 Exhibit 9.
7 MR. LEMOINE: And, Your Honor, at this
8 time I would ask the Court to take judicial notice of
9 the dates in which the various conventions were
10 canceled in the first amended petition.
11 THE COURT: These are the dates that
12 are listed in the petition?
13 MR. LEMOINE: Yes, sir.
14 THE COURT: Okay.
15 Q. (By Mr. Lemoine) Mr. Mignogna, looking at
16 Defendant's Exhibit 9, I'm going to represent to you
17 that the dates under those with regard to the various
18 conventions are the dates that your lawsuit says those
19 conventions were terminated. Are you with me?
20 A. Yes, sir.
21 Q. All right. Do you agree with that?
22 A. I assume that's true, yes.
23 Q. Okay. As we sit here today, when this
24 lawsuit was filed on April 18th, 2019, did you believe
25 that all four of the defendants had interfered with
Tina Fett, CSR
#oof 68
1 each convention that is listed on Defendant's Exhibit
2 9?
3 A. I had no direct evidence of that.
4 Q. Did you believe it to be true?
5 A. I did, based on things that I had heard.
6 Q. Okay. I want to break these down by
7 defendant.
8 First defendant, Jaime Marchi, your
9 position is that Ms. Marchi interfered with all 11
10 conventions that are listed on Defendant's Exhibit 9?
11 A. No, sir.
12 Q. Okay. So she didn't interfere. Is there
13 one on there that you could point to that she
14 interfered with?
15 A. No, sir.
16 Q. As we sit here today, you cannot point the
17 Court to any one of these conventions that you contend
18 that Ms. Marchi interfered with?
19 A. No, sir.
20 Q. All right. How about with regard to
21 Defendant, Ms. Rial, as we sit -- when you filed the
22 lawsuit in April of 2019, did you have any evidence
23 that Ms. Rial interfered with any of the conventions
24 on this list?
25 A. I don't believe this is a complete list,
Tina Fett, CSR
#oof 69
1 but the ones listed here, I do not.
2 Q. All right. What about with regard to
3 Mr. Toye? When you filed -- when the lawsuit was
4 filed in April of 2019, did you believe that Mr. Toye
5 had interfered with any of the conventions that are
6 listed on Defendant's Exhibit 9?
7 A. I believed it to be true, but I have no
8 direct evidence of that.
9 Q. As you sit here today do you have direct
10 evidence that Mr. Toye interfered with any of the
11 conventions on Exhibit 9?
12 A. No, sir.
13 Q. Okay. What about Funimation? When you
14 filed the lawsuit in April of 2019, did you have any
15 evidence that Funimation interfered with any of the
16 conventions on Exhibit 9?
17 A. I had been given information by people at
18 different events that they had made their decision
19 based on Funimation's involvement.
20 Q. Okay. And that was Funimation's tweet,
21 which you sued them over?
22 A. That and other things as well.
23 Q. Okay. And you would agree with me,
24 wouldn't you, sir, that the tweet occurred on February
25 11th, 2019?
Tina Fett, CSR
#oof 70
1 A. I suppose that's true. I don't have the
2 date memorized, sir.
3 Q. Okay.
4 MR. LEMOINE: Scott, would you pull up
5 Defendant's Exhibit 8, paragraph 30.
6 Q. (By Mr. Lemoine) Mr. Mignogna, does this
7 refresh your memory that the tweet in which you sued
8 Funimation over occurred on February 11th of 2019?
9 A. It would appear that was when the initial
10 tweet was made, yes, sir.
11 MR. LEMOINE: All right. Scott, would
12 you scroll up so that we can see the tweet? Yes, go
13 up. I'm sorry, move down.
14 Q. (By Mr. Lemoine) Mr. Mignogna, is this the
15 tweet you sued Funimation over?
16 A. I believe there was more than one.
17 Q. There's more than one?
18 A. I believe there was more than one tweet by
19 Funimation.
20 Q. And what date did those tweets occur?
21 A. I'm afraid I don't know offhand.
22 Q. Okay. If this tweet actually occurred on
23 February 11th, 2019 like you said, you would agree
24 with me that this tweet could not have caused the
25 cancellation of any of the conventions listed in the
Tina Fett, CSR
#oof 71
1 petition?
3 that calls for speculation.
4 THE COURT: Overruled. If you can't
5 answer it, don't answer it.
6 Q. (By Mr. Lemoine) Did this tweet --
7 A. Could you rephrase, because I actually have
8 an answer. Can you ask me again, please.
9 Q. Okay. Did this tweet cause the
10 cancellation of any of the conventions listed on
11 Defendant's Exhibit 9?
12 A. I have no reason to believe the tweet
13 caused any cancellations, obviously, before the tweet
14 occurred. But there was a great deal going on on
15 social media, and a lot spiraling around that all
16 related to the cancellations.
17 Q. Mr. Mignogna, you're not suing social media
18 today, are you?
19 A. You can't do that. It's impossible.
20 Q. And people that incurred fees having to
21 fight this lawsuit, that's not social media, that's
22 the defendants, isn't it?
23 A. I'm sorry. Say that again, please.
24 Q. The defendants are the ones that had to
25 incur fees to fight your lawsuit, aren't they?
Tina Fett, CSR
#oof 72
1 MR. MARTINEZ: Objection, Your Honor.
2 It's asking whether he knows information that the
3 defendants would be in a better position to know.
4 It's -- he is not the -- it's asking for speculation
5 on his part.
6 THE COURT: Sustained.
7 Q. (By Mr. Lemoine) Mr. Mignogna, you agree
8 with me that this tweet did not cause the termination
9 of any of the -- the cancellation of the conventions
10 on Exhibit 9?
11 MR. MARTINEZ: Objection again, Your
12 Honor. It calls for speculation.
13 MR. LEMOINE: It's his lawsuit.
15 If you can answer, you can answer it.
16 If you're guessing, don't guess.
17 THE WITNESS: There were many elements
18 that contributed to the ultimate cancellations.
19 MR. LEMOINE: Objection.
20 Nonresponsive.
22 If you don't like ask his answer,
23 tough. You are asking a question and he's answering
24 it.
25 MR. LEMOINE: Okay. I'll try again.
Tina Fett, CSR
#oof 73
1 Sorry, Judge.
2 THE COURT: Okay.
3 MR. LEMOINE: Pull up Defendant's
4 Exhibit 9 for me.
5 Q. (By Mr. Lemoine) Mr. Mignogna, the last
6 convention on Exhibit 9, the last convention listed in
7 your lawsuit terminated on February 6th, 2019.
8 Explain to Judge Chupp how a tweet on February 11th,
9 2019 caused the termination of any convention listed
10 in your lawsuit.
11 A. So there are a great many communications
12 that go on that are not on Twitter --
13 THE COURT: Real quick. I think what
14 he's saying is that the tweet happened after --
15 THE WITNESS: Yes, sir. Yes, sir.
16 THE COURT: So that tweet couldn't have
17 done --
18 THE WITNESS: Well, the tweet, no, the
19 tweet could not, that's correct.
20 THE COURT: That's all he's asking you.
21 THE WITNESS: There were other factors
22 is all I meant to say, sir.
23 THE COURT: Your attorney will ask you
24 questions.
25 THE WITNESS: Yes, sir.
Tina Fett, CSR
#oof 74
1 Q. (By Mr. Lemoine) Mr. Mignogna, when the
2 lawsuit was filed against Funimation, you didn't have
3 any evidence that Funimation had done anything to
4 cause you to lose any of the conventions that are
5 listed on Exhibit 9, did you?
6 A. Listed on the exhibit, no, sir.
7 Q. Mr. Mignogna, even sitting here today you
8 cannot identify any convention that was canceled
9 because of anything that Funimation did, can you?
11 Again, it calls for speculation. Additionally, Your
12 Honor, in this instance, the Court granted the TCPA so
13 it did not allow discovery to get into the merits of
14 that issue.
15 THE COURT: If it calls for
16 speculation, wouldn't that insinuate that he didn't
17 have a good faith basis of making a claim since he's
18 speculating on it?
19 MR. MARTINEZ: Well, Your Honor, the
20 question was as you are sitting here today do you have
21 this information. And if the Court would like me to
22 reword this here, there is a mischaracterization of
23 what exactly that tweet did in and of itself.
24 Mr. Mignogna has testified on multiple
25 times today that it wasn't just the tweet, but that is
Tina Fett, CSR
#oof 75
1 a factor, that is part of went into the decision
2 making.
3 The characterization made by opposing
4 counsel is that the tweet was what did it, that's what
5 the --
6 THE COURT: But you get to ask him
7 questions, too.
8 MR. MARTINEZ: That's correct, Your
9 Honor.
10 THE COURT: So you can ask him all of
11 that.
13 Q. (By Mr. Lemoine) Mr. Mignogna, as we sit
14 here today can you point to any evidence to the Court
15 that Funimation did anything to interfere with any of
16 the conventions listed on Exhibit 9?
17 A. I have no specific evidence, but I was told
18 by certain people involved with certain conventions
19 that there was involvement by Funimation.
20 MR. LEMOINE: Move Exhibit 9 into
21 evidence as demonstrative, Judge.
22 MR. MARTINEZ: No objection.
23 THE COURT: All right. Exhibit 9 is
24 admitted.
25 (Defendant's Exhibit 9 admitted)
Tina Fett, CSR
#oof 76
1 Q. (By Mr. Lemoine) Mr. Mignogna, please look
2 at Defendant's Exhibit 16. It's up on the screen.
3 Have you ever seen Defendant's Exhibit 16 before?
4 A. I have not seen the printed version of
5 this, no, sir.
6 Q. Okay. If you would look to the very last
7 page of Exhibit 16. Isn't that your written signature
8 on Exhibit 16?
9 A. Yes, sir.
10 Q. It is?
11 A. Yes, sir.
12 Q. Where were you when Defendant Exhibit 16
13 was signed?
14 A. I don't even remember.
15 Q. Well, it's August 30th, 2019. Does that
16 ring a bell?
17 A. No, sir.
18 Q. Were you in Tyler, Texas on August 30th,
19 2019?
21 Relevance.
22 THE COURT: Yeah, I'm kind of wondering
23 that, too, because I think the purpose of this hearing
24 is to determine your attorney's fees and any sanctions
25 for filing the lawsuit, not necessarily this
Tina Fett, CSR
#oof 77
1 affidavit. If you'd like to have a hearing on
2 sanctions for this affidavit, we can have that
3 hearing, but I don't think that's scheduled today.
4 I think you're going to try to say that
5 he wasn't there in the room where it was signed, and
6 they filed this affidavit, and that's wrong. And I
7 appreciate your argument on that, but that's not what
8 we're here about today. If you want to have that
9 hearing, set it.
10 MR. LEMOINE: Okay. Well, I was really
11 trying to lay -- it's both. I was trying to lay the
12 predicate to introduce it into evidence.
13 THE COURT: I mean, it's in the jacket,
14 right? I mean, it's in the -- it's filed with the
15 Court. Oh, you withdrew it. That's right. Okay.
16 So you're going to put this in, so I'm
17 going to --
18 MR. LEMOINE: But not just for that.
19 I've got a question once I lay the predicate.
20 THE COURT: Okay.
21 MR. LEMOINE: If they want to stipulate
22 that it is, I'll move 16 into evidence.
23 THE COURT: I don't think anybody is
24 disputing that he wasn't there when he signed it -- or
25 that he wasn't in Tyler.
Tina Fett, CSR
#oof 78
1 MR. LEMOINE: We move to put
2 Defendant's Exhibit l6 into evidence.
3 MR. MARTINEZ: We object to this, Your
4 Honor. As Your Honor stated the purpose of this
5 hearing is to determine fees and/or sanctions
6 available pursuant to the filing. This affidavit is
7 irrelevant to that.
8 THE COURT: Okay. I'll hold off on the
9 ruling on that for a second. Tell me what you are
10 doing with it.
11 Q. (By Mr. Lemoine) Okay. Turn to paragraph
12 19. Mr. Mignogna, you just told the Court that some
13 unknown people told you things that Funimation
14 supposedly did something.
15 My question for you is: As of August
16 30th, 2019 you could not identify any unknown person
17 that any of the defendants had done anything to
18 interfere with any of the conventions, could you?
19 A. I'm sorry. Please restate that.
20 Q. I'll back up. Paragraph 19 is your
21 description of the bad things that people did to
22 cancel the conventions, correct?
23 A. Yes, sir.
24 Q. It doesn't identify any human being that
25 you talked to; isn't that correct?
Tina Fett, CSR
#oof 79
1 A. No, sir. I did speak to people.
2 Q. All right. Turn to paragraph 24. Who is
3 Faisal Ahmed.
4 A. He is on staff with a couple of events,
5 Kawaii Kon and Anime Weekend Atlanta are two. He is a
6 guest relations person, I think, for those events.
7 Q. Is he is CEO of Kawaii Kon?
8 A. I'm sorry?
9 Q. Is he the CEO?
10 A. I don't know his actual title. He just --
11 Q. And you read his affidavit?
12 A. No, sir.
13 Q. You did read his affidavit?
14 A. Excuse me?
15 Q. You didn't read Mr. Ahmed's affidavit?
16 A. No, sir. I was briefed by my attorneys on
17 the affidavit.
18 Q. Okay. So you don't have any position on
19 Mr. Ahmed's statement in his affidavit about not
20 cancelling your engagement to Kawaii Kon?
21 A. May I read this?
22 Q. Sure.
23 A. All right. And would you please ask the
24 question again.
25 Q. You just read the affidavit. You hadn't
Tina Fett, CSR
#oof 80
1 read Mr. Ahmed's affidavit?
2 A. Not word for word, no, sir.
3 Q. What about Amanda McManus in paragraph 32?
4 I'm sorry, I've got the wrong paragraph.
5 A. Yes, sir.
6 Q. All right. Do you know who Amanda McManus
7 is? It's not in paragraph 32.
8 A. I don't. Actually, I don't think I do
9 recognize that name.
10 Q. All right. How about Raymond Lenzer?
11 A. I believe that's a convention organizer.
12 Q. Do you know which one?
13 A. I think he is with, maybe Kami-Con.
14 Q. Did you ever talk to him about why he
15 canceled your invitation to Kami-Con?
16 A. Yes, sir.
17 Q. When did you talk to Mr. Lenzer?
18 A. When?
19 Q. When?
20 A. I don't remember exactly. I was in a
21 pretty difficult state at the time.
22 Q. Was it before or after he gave an affidavit
23 to be submitted?
24 A. Before.
25 Q. Before.
Tina Fett, CSR
#oof 81
1 A. I was scheduled to be a guest at his event,
2 as I'm sure was stated in the records, and we had
3 an -- ultimately had a conversation where he told me
4 that he was going to need to cancel me because of the
5 pressure and the negative.
6 Q. Mr. Mignogna, you have not had to pay any
7 money to file this lawsuit, have you?
9 Relevance.
10 MR. LEMOINE: It goes to his ability to
11 satisfy the sanctions. He hasn't had to pay
12 attorney's fees, and it goes to the deterrence aspect
13 of the case. This is the whole GoFundMe component of
14 the case.
15 MR. MARTINEZ: Evidence of paying for
16 your attorney's fees, Your Honor, is not evidence of
17 whether he can pay an award.
19 Q. (By Mr. Lemoine) Mr. Mignogna, there is a
20 GoFundMe campaign that was set up for you to sue
21 people; is that correct?
22 A. No, sir. I wouldn't characterize it that
23 way.
24 Q. It wasn't set up to sue the anonymous
25 bloggers that have come after you?
Tina Fett, CSR
#oof 82
1 A. No, sir.
2 Q. It wasn't set up to sue million dollar
3 corporations?
4 A. No, sir.
5 THE COURT: And I don't know how
6 GoFundMe works, necessarily, I've never done one.
7 Does somebody have control over the account?
8 MR. LEMOINE: I don't know. I was
9 going to -- trying to get to that.
10 THE COURT: Because that is the
11 question you should ask him, does he have control over
12 that money. Just like a regular bank account. I
13 mean, he doesn't have control over my bank account, so
14 he can't write a check out of it. Does he have
15 control over this bank account, the GoFundMe account.
16 Q. Pull up Defendant's Exhibit 11.
17 Mr. Mignogna, have you ever seen the GoFundMe account
18 that's set up online?
19 A. No, sir.
20 Q. You've never seen it before?
21 A. I don't go to it. I don't look at it.
22 Q. Do you --
23 A. And I have no control over one penny of it.
24 Q. So you don't -- do you get invoices from
25 Mr. Beard?
Tina Fett, CSR
#oof 83
1 A. Sir?
2 Q. Do you get invoices, legal invoices?
3 A. I have not.
4 Q. So you don't know how the money is being
5 spent at all?
6 A. No, sir. I trust my attorney.
7 Q. And you have never seen this page before?
8 A. No, sir.
9 Q. What about in the deposition?
10 A. I'm sorry?
11 Q. What about when I showed it to you in the
12 deposition?
13 A. Oh, I'm sorry, when you showed it to me in
14 the deposition, yes, sir, that was the first I had
15 seen it.
16 Q. All right. And you know an individual
17 named Nick Rekieta?
18 A. Yes, sir.
19 Q. You met him sometime in February of 2019?
21 Relevance.
22 THE COURT: Just real quick. Do you
23 have any control over this GoFundMe account?
24 THE WITNESS: Not a thing.
25 THE COURT: Can you direct money out of
Tina Fett, CSR
#oof 84
1 it?
2 THE WITNESS: No, sir.
3 THE COURT: Okay. So if he can't
4 direct any money out of this, I mean, you might as
5 well ask how much money they have in their account,
6 too, he can't do theirs. Unless you have proof that
7 he does, do you have any proof?
8 MR. LEMOINE: No.
9 THE COURT: Okay. Then move on.
10 MR. MARTINEZ: Can I get a ruling on
11 the record?
13 MR. LEMOINE: Pull up Exhibit 10,
14 please.
15 Q. (By Mr. Lemoine) Can you identify the
16 individuals that are there?
17 A. Sir?
18 Q. Can you identify the three individuals?
19 A. Of course, yes. That is Nick Rekieta --
20 MR. MARTINEZ: Your Honor, I would
21 object. Again, relevance.
22 THE COURT: Overruled. I mean, he can
23 identify people.
24 Q. (By Mr. Lemoine) Go ahead.
25 A. That is Mr. Rekieta, Your Honor, on the
Tina Fett, CSR
#oof 85
1 left of the photo, and me and Mr. Beard on the right.
2 Q. But it was taken in Houston at Anime
3 Matsuri?
4 A. Yes, sir.
5 Q. How long ago?
6 A. When was that? Oh, April, I think. I
7 don't remember exactly. That was actually the first
8 time I had ever met Mr. Rekieta.
9 Q. You mean met him in person?
10 A. Yes, sir.
11 Q. Prior to that you had met him over the
12 phone?
13 A. Yes, sir.
14 Q. And he is the person that set up the
15 GoFundMe account?
16 A. Yes, sir.
17 MR. MARTINEZ: Objection again, Your
18 Honor. What is the relevance of the GoFundMe?
19 THE COURT: I still don't know. When
20 you get some evidence that he has control of that
21 account, then we can talk about it.
22 MR. LEMOINE: Well, I think it goes to
23 the agency component and -- of -- between Mr. Rekieta
24 and Mr. Mignogna. And so I'm trying to ask the
25 questions, but I keep running into this objection.
Tina Fett, CSR
#oof 86
1 THE COURT: Okay. You can answer that.
2 Overruled.
3 THE WITNESS: Please ask the question
4 again.
5 Q. (By Mr. Lemoine) Mr. Rekieta set up a
6 GoFundMe account for your benefit, didn't he?
7 A. He decided to set up an account to allow
8 fans to support what they thought was an injustice.
9 Q. So he set up money -- he set up an account
10 to fund a lawsuit that you didn't approve of?
12 That's a mischaracterization of his testimony.
13 THE COURT: Do you know why he set it
14 up?
15 THE WITNESS: Well, I didn't ask him to
16 do it, Your Honor. And this gentleman contacted me
17 and said that he had been following the case and felt
18 like it was a great injustice, and when I decided that
19 I was going to move forward as a last resort for the
20 lawsuit, he told me he was going to set this up.
21 And I didn't really feel great about
22 it, but he said, listen, you have a lot of people that
23 care about you and feel like you are being wrongly
24 accused, and they want to help. Allow them to help.
25 And so I said okay. I had no idea what would ever
Tina Fett, CSR
#oof 87
1 come of it. It could have been $10 or it could have
2 been $20. I don't know.
3 THE COURT: Okay. Are you going to be
4 asking me to sanction him based upon what's in the
5 GoFundMe account?
6 MR. LEMOINE: No, Judge.
7 THE COURT: Then why are we talking
8 about it still?
9 MR. LEMOINE: Because Mr. Rekieta is an
10 arm of Mr. Mignogna and the Beard law firm and has
11 done things --
12 THE COURT: Okay.
13 MR. LEMOINE: And that's where I'm
14 trying to go.
15 THE COURT: What does that matter if
16 he's an arm of them?
17 MR. LEMOINE: Well, then the deterrent
18 aspect of this lawsuit is lost in two ways. One, he
19 has never had to pay any attorney's fees, so they get
20 to --
21 THE COURT: Well, neither has your
22 client.
23 MR. LEMOINE: Judge, that's not true.
24 THE COURT: Your client has paid you
25 $282,000?
Tina Fett, CSR
#oof 88
1 MR. LEMOINE: No, Judge, but they have
2 paid us money.
3 THE COURT: Okay.
4 MR. LEMOINE: Unlike Mr. Mignogna,
5 they've had money come out of their savings.
6 THE WITNESS: Well, Mr. Lemoine, I paid
7 over 10,000 --
8 THE COURT: Stop. Stop.
9 THE WITNESS: I'm sorry, sir. I
10 apologize.
11 THE COURT: That's okay.
12 Okay. Are you trying to get somebody
13 else to pay these sanctions?
14 MR. LEMOINE: No, Judge.
15 THE COURT: Then ask what money he has.
16 That's what's important.
17 MR. LEMOINE: Judge, I'm going to get
18 there.
19 THE COURT: Okay. Keep going. I mean,
20 I --
21 MR. MARTINEZ: Your Honor, if I may.
22 Mr. Lemoine testified earlier that he has no evidence
23 of any agency between Mr. Mignogna and Mr. Rekieta.
24 THE COURT: Did you testify to that?
25 Tina, read that back.
Tina Fett, CSR
#oof 89
1 MR. LEMOINE: Yes, Judge. I literally
2 don't get to sit in on their conversations.
3 THE COURT: Okay. So you have no
4 evidence.
5 MR. LEMOINE: I couldn't possibly have
6 evidence. That's what I'm trying to develop in this
7 record.
8 MR. MARTINEZ: If I may, Your Honor,
9 today is not the time for him to try to do that.
10 THE COURT: Okay. Well, ask your next
11 question.
12 Q. (By Mr. Lemoine) Mr. Mignogna, you helped
13 Mr. Beard and Mr. Rekieta get to talk on a panel at
14 Anime Matsuri, didn't you?
15 A. No, sir.
16 Q. You had nothing to do with it?
17 A. Nothing to do with it whatsoever.
18 Q. The lower picture in Defendant's Exhibit
19 10, that's a picture of you and Mr. Rekieta a few
20 months ago in Hawaii?
21 A. That was at a convention that I was invited
22 to, correct.
23 Q. Mr. Rekieta flew out there to meet with
24 you?
25 A. Mr. Rekieta brought his family out on a
Tina Fett, CSR
#oof 90
1 vacation, and I had nothing to do with that.
2 Q. It was just happenstance y'all both ended
3 up in Hawaii?
4 A. You'll have to ask Mr. Rekieta that. I
5 don't know.
6 Q. Mr. Mignogna, isn't it true that you
7 authorized Nick Rekieta to set up the GoFundMe
8 account?
9 A. No, sir.
10 Q. Isn't it true that the plan between you and
11 Mr. Rekieta was that you would file a lawsuit funded
12 with the GoFundMe account, and Mr. Rekieta would spend
13 night after night bashing the defendants and
14 witnesses, isn't that what was the plan?
15 A. Absolutely not.
16 Q. Mr. Mignogna, isn't it true that the
17 purpose behind the lawsuit was to try and shut up all
18 of the people who were accusing you of misdeeds
19 online?
20 A. Absolutely not.
21 Q. Do you know what a discord server is?
22 A. I've heard of it.
23 Q. You've never used a discord server?
24 A. Not that I am aware of.
25 Q. You have never communicated with
Tina Fett, CSR
#oof 91
1 Mr. Rekieta on a discord server?
2 A. Not that I'm aware of, no.
4 Exhibit 13. Blow up the first three -- or go down to
5 the second or third Rekieta line.
6 Q. (By Mr. Lemoine) What time -- when did you
7 first start talking to Nick Rekieta?
8 A. Mr. Rekieta -- I'm going to answer your
9 question. Mr. Rekieta contacted me by email
10 unsolicited. I didn't know him, never heard of him,
11 and he contacted me early on in this situation. I
12 can't remember the exact date. But I didn't know who
13 he was, and I didn't even reply to his email. He said
14 that he was an attorney and that he --
15 MR. LEMOINE: I'm trying not to object
16 as nonresponsive.
17 Q. (By Mr. Lemoine) My question is: When did
18 you start talking to the man?
19 A. After somebody told me that there was an
20 attorney online who was being very supportive of my
21 case. I looked back at the email and put it together
22 that it was the same gentleman, and I emailed him and
23 thanked him for his support.
24 Q. What time of the year? Do you remember
25 back in --
Tina Fett, CSR
#oof 92
1 A. I'm sorry?
2 Q. Your lawsuit started in April of 2019. You
3 would agree with me that the GoFundMe account existed
4 before then?
6 That calls for speculation. The plaintiff has already
7 testified he knows nothing of the GoFundMe account.
8 THE COURT: If you don't know the
9 answer, just say you don't know the answer.
10 THE WITNESS: I do not know, sir.
11 Q. (By Mr. Lemoine) You have no idea when the
12 GoFundMe account started?
13 THE COURT: How many times are you
14 going to ask him? He just said he doesn't know. Are
15 you going to ask him again?
16 Q. (By Mr. Lemoine) Mr. Mignogna, isn't it
17 true that you have been talking to Nick Rekieta since
18 February of 2019?
19 A. Talking to him, yes, sir, of course.
20 Q. Okay. In fact, you've been talking to him
21 as early as February 15th, 2019, haven't you?
22 A. I don't know the exact date.
23 Q. Isn't it true that the discussions you had
24 with Mr. Rekieta was that you would file the lawsuit
25 funded by GoFundMe, and he would go on YouTube nightly
Tina Fett, CSR
#oof 93
1 and attack the --
2 A. No, sir.
3 THE COURT: Hold on. Didn't you
4 already ask that?
5 MR. LEMOINE: I don't know it was the
6 specific question, Judge.
7 THE COURT: You did.
8 Q. (By Mr. Lemoine) Mr. Mignogna, isn't it
9 true that there are online magazines that wrote
10 articles about you that you might sue?
11 A. I'm sorry?
12 Q. Isn't it true that there are online
13 magazines that wrote negative articles about you that
14 you might sue?
15 A. I've never made a decision one way or the
16 other on any other filings.
17 Q. Okay. So there are other defendants out
18 there that you might file a lawsuit against?
19 A. I have made no decision about any of that.
20 Q. Are they the ones that actually interfered
21 with the conventions that we saw on Defendant's
22 Exhibit 9?
23 A. I don't know, sir.
24 Q. Because we know it wasn't any of the
25 defendants, don't we?
Tina Fett, CSR
#oof 94
1 A. No, we don't know that, sir.
2 Q. Mr. Mignogna, isn't it true that you
3 endorsed the GoFundMe account?
5 Asked and answered on multiple occasions.
6 THE COURT: What do you mean by
7 endorsed?
8 MR. LEMOINE: Pull up Exhibit -- Judge,
9 if you'll allow me, Exhibit 12.
10 THE COURT: You can pull it up.
11 Q. (By Mr. Lemoine) Mr. Mignogna, isn't
12 Exhibit 12 your endorsement on February 20th, 2019 of
13 the GoFundMe account?
14 A. I told him that if he felt strongly about
15 that, I had no problem with it.
16 MR. LEMOINE: Objection.
18 Q. (By Mr. Lemoine) Mr. Mignogna, when you
19 sent this tweet out, you had over 113,000 Twitter
20 followers, didn't you?
21 A. I don't know how many I had at the time.
22 MR. LEMOINE: Pull up defendant's
23 deposition page 49.
24 THE WITNESS: Can his mic be turned up,
25 Your Honor? I hate to keep asking you to repeat, but
Tina Fett, CSR
#oof 95
1 I'm having a hard time hearing you. I'm so sorry.
2 THE COURT: Try that.
3 MR. LEMOINE: Is that better?
4 THE WITNESS: Yes. Thank you.
5 Q. (By Mr. Lemoine) Earlier at a deposition
6 we were discussing this same endorsement of the
7 GoFundMe campaign; do you recall that?
8 A. Yes, sir.
9 Q. Do you recall me asking you a question:
10 Okay. So when you tweeted this out to your people,
11 you didn't say -- to all of your followers -- how many
12 do you have? And your answer was what?
13 A. Roughly 113,000.
14 Q. So a couple of months ago you knew you had
15 113,000 Twitter followers, right?
16 A. Roughly, yes, sir.
17 Q. Okay. So you endorsed the GoFundMe
18 campaign, did you not?
19 A. Can you define endorse?
20 Q. How about I approved his fine offer and am
21 so grateful, is that endorsement?
22 A. When somebody offers to help and you are
23 drowning, you accept help.
24 Q. So you endorsed the GoFundMe campaign?
25 MR. MARTINEZ: Your Honor, I'm going to
Tina Fett, CSR
#oof 96
1 object again. We have now spent nearly an hour
2 talking about a GoFundMe account.
4 Q. (By Mr. Lemoine) Mr. Mignogna, when you
5 talked to Mr. Rekieta didn't you identify a number of
6 other people or entities besides the defendants that
7 you intended to sue?
8 A. No, sir.
9 Q. So if Mr. Rekieta said that to anybody,
10 that would be untrue?
11 THE COURT: Hold on. If he said that
12 to somebody, that would be what?
13 MR. LEMOINE: It would be untrue.
14 THE COURT: Untrue. Okay.
15 MR. LEMOINE: If Mr. Mignogna told him
16 there were other people besides the defendants he
17 intended to sue.
18 Q. (By Mr. Lemoine) If there were other
19 people that you intended to sue, that would be untrue?
20 A. Well, sir, if you look at the deposition
21 that you provided I said that there were possibilities
22 of other people, that is not classified or private.
23 If it's what Mr. Rekieta says, I'm not responsible for
24 what he decides to say. I never told him that.
25 Q. Mr. Mignogna, have you authorized anyone to
Tina Fett, CSR
#oof 97
1 give depositions in this case to Mr. Rekieta?
2 MR. MARTINEZ: Your Honor, it's not
3 Mr. Mignogna's position to authorize a deposition.
4 THE COURT: What do you mean he
5 authorized?
6 MR. LEMOINE: I'm sorry.
7 Q. (By Mr. Lemoine) Are you aware that
8 Mr. Rekieta plays video excerpts from the depositions
9 in this case?
10 A. I've heard that. I have nothing to do with
11 it.
12 Q. Do you have any idea how he got those
13 deposition excerpts?
14 MR. MARTINEZ: Your Honor, asked and
15 answered. He just said he has nothing to do with it.
16 THE COURT: Overruled. I guess he can
17 ask -- answer how he got the copy of it.
18 Q. (By Mr. Lemoine) You don't have any idea
19 how?
20 A. I don't, sir.
21 Q. So you obviously didn't authorize that to
22 occur?
23 A. No, sir.
24 THE COURT: Why are we talking about
25 stuff that happened after the filing?
Tina Fett, CSR
#oof 98
1 MR. LEMOINE: Because it goes to the
2 deterrence component, Judge. The -- what happened
3 after the -- I think I laid the predicate for the
4 filing being frivolous, but what happened after it is
5 the part that needs to be deterred.
6 THE COURT: Are you saying that the
7 actions that are on the Internet need to be deterred,
8 or are you saying that him filing something in this
9 lawsuit after the filing of the petition needs to be
10 deterred?
11 MR. LEMOINE: The deterrence is to
12 prevent him from filing more of these.
13 THE COURT: I understand that, but why
14 are we talking about stuff that's on the Internet?
15 That's what it seems like your complaint is, that he
16 is playing video depositions on the Internet.
17 MR. LEMOINE: Well, that is one of
18 them.
19 THE COURT: I can't sanction him for
20 that, unless you have a motion.
21 MR. LEMOINE: Well, it's not the -- it
22 goes to the deterrence component. He doesn't have to
23 pay attorney's fees. He's got other people he wants
24 to sue. And he's allowed this lawsuit to be a vehicle
25 to let Mr. Rekieta, you know, go crazy on the
Tina Fett, CSR
#oof 99
1 Internet.
2 MR. MARTINEZ: I'll object to the last
3 portion of his statement there, Your Honor.
4 THE WITNESS: Do you represent
5 Mr. Rekieta?
6 MR. MARTINEZ: No, Your Honor, but he's
7 mischaracterizing Mr. Mignogna's testimony.
8 THE COURT: Oh, okay.
9 MR. MARTINEZ: Nowhere did Mr. Mignogna
10 say that I'm allowing Mr. Rekieta to do anything.
11 THE COURT: Well, let's get to
12 something relevant.
13 MR. LEMOINE: All right.
14 Q. (By Mr. Lemoine) Mr. Mignogna, what is
15 your net worth?
16 A. I don't know.
17 Q. You testified -- you submitted an affidavit
18 in this Court that you have already made $161,000 this
19 year; is that correct?
20 A. I don't know an exact number.
21 Q. Does that sound about right?
22 A. I suppose.
23 Q. When you sold your house after Judge Chupp
24 granted -- or transferred into a trust, after Judge
25 Chupp granted the first motion to dismiss against you,
Tina Fett, CSR
#oof 100
1 how much money did the trust pay you?
2 A. I'm sorry?
3 Q. You transferred -- after Judge Chupp on
4 September 6th granted the partial motion to dismiss,
5 you transferred your home into a trust, didn't you?
6 A. I had been in the process of doing that for
7 a while.
8 THE COURT: Just answer his question.
9 Did you transfer it into a trust after I signed the
10 order?
11 MR. MARTINEZ: Your Honor, I'll object
12 to the relevance.
15 Exhibit 15.
16 THE COURT: Hold on. You don't have to
17 pull it up.
18 MR. LEMOINE: Okay.
19 THE COURT: Did you transfer it into a
20 trust after I signed the order? It's a simple
21 question.
22 THE WITNESS: I don't know.
23 THE COURT: Okay.
25 Exhibit 15. Blow up the first paragraph. Down a
Tina Fett, CSR
#oof 101
1 little. There.
2 Q. (By Mr. Lemoine) Have you seen this
3 document before, Mr. Mignogna?
4 A. Yes, sir.
5 MR. LEMOINE: Scroll to the last -- to
6 the signature page, page 2. Blow up that.
7 Q. (By Mr. Lemoine) Is that your signature?
8 A. Yes, sir.
9 MR. LEMOINE: And blow up the date.
10 Q. (By Mr. Lemoine) So it was September 2019,
11 September 18th to be exact, when you transferred the
12 house to a trust, correct?
13 A. Yes, sir.
14 Q. How much money did the trust pay you?
16 Relevance.
18 THE WITNESS: I don't understand. The
19 trust didn't pay me anything.
20 MR. LEMOINE: Nothing further.
21 THE COURT: Is anybody else going to
22 ask questions?
23 MR. VOLNEY: Nothing from Funimation,
24 Your Honor.
25 MR. JOHNSON: Nothing from Ms. Marchi,
Tina Fett, CSR
#oof 102
1 Your Honor.
2 MR. MARTINEZ: Your Honor, if possible,
3 would it be possible for us to take a five-minute
4 recess to discuss something?
5 THE COURT: With your client?
6 MR. MARTINEZ: Yes, sir. We are at a
7 break. We're not asking in the middle of any
8 questions or anything.
9 MR. LEMOINE: Technically he's
10 sequestered. He can't take a break other than a
11 privilege issue.
12 MR. MARTINEZ: I'll just confer with
13 co-counsel, if that's possible, Your Honor.
14 THE COURT: So you want to prep your
15 witness some more?
16 MR. MARTINEZ: No, Your Honor. I won't
17 speak to Mr. Mignogna.
18 THE COURT: Oh, we can hang out here.
19 You can step out, yes.
20 MR. MARTINEZ: If I can step out, just
21 a five-minute recess with co-counsel.
22 THE COURT: Oh, okay. That's fine.
23 And you don't have to sit right there, just don't go
24 out and talk to your attorney.
Tina Fett, CSR
#oof 103
1 THE COURT: Okay. That's fine.
2 (Recess taken)
3 THE COURT: Okay.
4 MR. HSU: Your Honor, just a point of
5 clarification. None of the other counsels are
6 actually going to ask any questions. Just for
7 efficiency purposes I didn't want to go up and go
8 through the direct while they still had questions
9 pending.
10 THE COURT: You don't want to go
11 through the direct while what?
12 MR. HSU: I believe, Your Honor, you
13 asked before we took a break if all the counsel over
14 here were done asking questions of Mr. Mignogna.
15 THE COURT: That's what they said.
16 They said they're not asking questions. You don't
17 have to ask any questions either, if you don't want
18 to.
19 MR. HSU: Well, I have a couple of
20 quick questions. I'll let Mr. Volney take a seat
21 first.
22 THE COURT: Okay.
23 MR. HSU: May it please the Court.
24 RECROSS-EXAMINATION
25 BY MR. HSU:
Tina Fett, CSR
#oof 104
1 Q. Mr. Mignogna, there was a lot of talk about
2 cancellations that occurred earlier, that I believe
3 Mr. Lemoine spoke of. Did you ultimately have
4 cancellations as a result of what you believe this
5 whole Twitter fest, as we'll call it, after that
6 occurred?
7 A. Yes, sir.
8 Q. Okay.
9 THE COURT: Hold on.
10 MR. LEMOINE: Objection. Calls for him
11 to speculate and calls for hearsay.
13 Q. (By Mr. Hsu) Mr. Lemoine mentioned earlier
14 a little bit that he believed that -- or he stated
15 that Funimation had no direct cause to the cancelling
16 of any of your events. Do you recall that testimony a
17 few minutes ago?
18 A. Yes.
19 Q. Now, but you are familiar that
20 Funimation -- are you familiar that Funimation made
21 some tweets regarding you?
22 A. Yes.
23 Q. And do you recall any of those retweets?
24 A. I didn't memorize them, but I know the
25 basic gist of them.
Tina Fett, CSR
#oof 105
1 Q. Were they part of the reason why you
2 brought the lawsuit?
3 A. Yes, sir.
4 Q. And do you believe to this day that largely
5 what Funimation did is what you believe was the
6 backbone of the problem that you received as a result
7 of -- or as part of the case?
8 MR. LEMOINE: Objection. Calls for
9 speculation and hearsay and is leading.
11 Q. (By Mr. Hsu) Now, you mentioned a little
12 bit earlier about media and so on and forth, and you
13 had mentioned a couple of things about you being
14 briefed through your counsel and that you trusted your
15 counsel. Do you remember that testimony?
16 A. Yes, sir.
17 Q. Now, prior to actually working with
18 Mr. Beard and Beard and Harris, counsel asked earlier
19 about attorney's fees. Did you have counsel prior to
20 Mr. Harris --
21 A. Yes, sir.
22 Q. -- or Mr. Beard, excuse me.
23 And the counsel prior to Mr. Beard, did
24 you pay any legal fees?
25 A. Yes, sir.
Tina Fett, CSR
#oof 106
1 Q. And was that a result of this case as
2 well?
3 A. Yes, sir.
4 Q. And so in that process ultimately you --
5 that counsel was terminated and you ultimately hired
6 the counsel that you have today; is that my
7 understanding -- or is that your understanding?
8 A. Yes, sir.
9 Q. And now, just so we're clear here, counsel
10 mentioned earlier that you met Mr. Rekieta around
11 February, I believe. Do you recall that testimony?
12 A. I believe so.
13 Q. And with respect to Mr. Rekieta, you had
14 mentioned also in your tweet that you're friends with
15 Mr. Rekieta?
16 A. I foolishly consider everyone a friend
17 pretty much. I refer to anybody I know, I just --
18 Q. Fair enough.
19 With respect to Mr. Rekieta, do you
20 hang out with Mr. Rekieta regularly or weekly?
21 A. No.
22 Q. Have you appeared on his show?
23 A. No, sir.
24 Q. Do you ever watch his show?
25 A. No, sir.
Tina Fett, CSR
#oof 107
1 Q. Do you have any control over Mr. Rekieta?
2 A. Not a bit.
3 Q. Do you have any control over what
4 Mr. Rekieta says?
5 A. No, sir.
6 Q. And do you have anything that -- has
7 Mr. Rekieta ever stated anything or done anything or
8 confirmed anything with you regarding his show prior
9 to getting on his show about you?
10 A. No, sir.
11 Q. To your knowledge is Mr. Rekieta -- does he
12 just broadcast his journalism?
13 A. I assume he just does what he does, does
14 whatever he wants to do.
15 Q. Now, did you ever -- before filing suit,
16 did you think long and hard about filing?
17 MR. LEMOINE: Objection. Relevance.
19 THE WITNESS: Yes. Yes.
20 Q. (By Mr. Hsu) And when you thought about
21 filing it, I guess, leading up to the time that you
22 actually did file it, what would you characterize
23 litigation as in terms of your case?
24 A. I honestly didn't know. I had never done
25 anything like this before. I had never been involved
Tina Fett, CSR
#oof 108
1 in anything like this before. I was really scared,
2 but I felt like I just had -- I mean, I had just seen
3 this all spiraling so badly over the couple of months
4 that I decided I really had no other recourse to try
5 to save, you know, whatever reputation or career I had
6 left.
7 Q. Now, you mentioned spiraling. What kind of
8 spiraling are you talking about?
9 MR. LEMOINE: Objection. Relevance.
11 THE WITNESS: Well, the day that the
12 movie that I was voicing in was released, some people
13 on Twitter started firing a bunch of things, and I
14 didn't really think much about it, because that
15 happens. But as it continued to intensity, I -- I
16 even contemplated -- I even contemplated contacting
17 Monica, because I have always considered her a good
18 friend, and I wanted to kind of get her thoughts on
19 it.
20 And then when she posted and then Jamie
21 and her boyfriend, Ron, I was kind of, I just was
22 stunned, and I didn't -- I didn't know what to do.
23 And it just getting worse and kept getting worse, and
24 I didn't feel like I had any other choice.
25 Q. And I want to be clear here. Counsel
Tina Fett, CSR
#oof 109
1 mentioned something particularly related to deterrence
2 being one of the factors in this process. Have you
3 ever filed a lawsuit against anybody?
4 A. No, sir.
5 Q. Is this your first time in a courtroom?
6 A. I think I had a speeding ticket once that I
7 went to a traffic court for many years ago, but
8 nothing like this, nothing even close.
9 MR. HSU: I pass the witness.
10 REDIRECT EXAMINATION
11 BY MR. LEMOINE:
12 Q. Is it fair to say that you needed to file
13 the lawsuit to shut people up?
14 A. No, sir. They had been speaking for
15 months. There was no shutting anyone up.
16 Q. And that's why you needed to file the
17 lawsuit was to shut them up?
18 A. No, sir.
19 THE COURT: Hold on. He just answered
20 the question, and you asked the exact same question
21 again. Why don't you just ask it once. I get it. I
22 can hear it the first time.
23 MR. LEMOINE: I pass the witness.
24 MR. HSU: No further questions, Your
25 Honor.
Tina Fett, CSR
#oof 110
1 May the witness be dismissed?
2 THE COURT: Do you feel like your case
3 was highjacked?
4 THE WITNESS: You mean by -- by the
5 people?
6 THE COURT: By the -- by Twitter and by
7 the --
8 THE WITNESS: I think it's spiraled out
9 of control because of social media. But I didn't
10 really -- I haven't had much experience with lawyers
11 and lawsuits, so I really didn't know what to expect.
12 THE COURT: All right. You can step
13 down.
15 MR. HSU: Your Honor, given the fact
16 that he has a flight, is it all right if he is
17 dismissed?
18 THE COURT: Yes.
19 MR. BEARD: May I step out with him?
20 THE COURT: Yes.
21 MR. BEARD: Thank you, Your Honor.
22 THE COURT: Call your next witness.
23 MS. ADAMS: Your Honor, Funimation
24 calls John Volney.
25 THE COURT: Okay. Watch your step.
Tina Fett, CSR
#oof 111
1 (Witness sworn)
2 JOHN VOLNEY,
5 BY MS. ADAMS:
6 Q. Good afternoon, Mr. Volney, would you
7 introduce yourself to the Court?
8 A. My name is John Volney. I'm counsel for
9 Funimation Productions in this case.
10 Q. And Mr. Volney, do you have an opinion on
11 what the reasonable attorney's fees that Funimation
12 has incurred in this case?
13 A. Yes, I have provided an affidavit to the
14 Court where I set out my reasoning on a reasonable
15 attorney's fees through entry of judgment in this
16 case, and then an additional opinion about conditional
17 attorney's fees after that.
18 MS. ADAMS: And, Your Honor, at this
19 time we move to admit Exhibit 2 in the binder, which
20 is Mr. Volney's affidavit, business records affidavit,
21 along with the business records attached, which are
22 Exhibit C and E to his affidavit.
23 MR. MARTINEZ: I want to be sure for
24 the record, Your Honor, Exhibit 2 on here is Johnson
25 Sparks bills.
Tina Fett, CSR
#oof 112
1 THE COURT: Yes, Johnson & Sparks --
2 no, I see. It's Exhibit 2.
3 MS. ADAMS: Exhibit 2 is affidavit of
4 John Volney and then the business record -- it
5 contains a business record affidavit, and the business
6 records attached are Exhibit 1C, which are the Lynn,
7 Pinker, Cox & Hurst invoices, billing records, and
8 Exhibit E, which are the invoices for the costs
9 incurred by Funimation.
10 THE COURT: Any objection?
11 MR. MARTINEZ: So just to be sure, Your
12 Honor, they're asking for Exhibit Number 2, Exhibit 1C
13 and Exhibit 1E?
14 MS. ADAMS: At this time, correct, yes,
15 as billing records.
16 THE COURT: Okay. So 2, 1C and 1E?
17 MS. ADAMS: I'm sorry. 1C and 1E.
18 THE COURT: So it's 2 and it's
19 subsection --
20 MS. ADAMS: We could call them 2C and
21 2E, if that would be easier.
22 THE COURT: I'm sure Tina has got it.
23 Okay. They're admitted.
24 (Defendant's Exhibit 2, 2C and 2E
25 admitted)
Tina Fett, CSR
#oof 113
1 Q. (By Ms. Adams) And Mr. Volney, what is
2 your opinion about what the amount of the reasonable
3 attorney's fees that Funimation has incurred in the
4 case?
5 A. The amount for reasonable attorney's fees
6 through the entry of judgment is $169,841. And the
7 appellate fees part of that is a total of $100,000,
8 which is $50,000 through the appeal at the Second
9 District Court of Appeals, and then an additional
10 50,000 for the stages of the petition for review
11 proceeding before the Texas Supreme Court.
12 Q. And Mr. Volney, just for clarification, I
13 believe you just stated 169,841, and if you'll turn to
14 paragraph 36 of your affidavit, it says 168,941.
15 A. I'm sorry. I transposed a number. It is
16 $168,941 is the total through entry of judgment.
17 Q. And are both of these opinions about the
18 fees incurred through entry of judgment and the
19 conditional appellate fees expressed with a reasonable
20 degree of certainty?
21 A. Yes.
22 Q. And, Mr. Volney, why are you qualified to
23 render these opinions?
24 A. I'm a partner at the Dallas, Texas law firm
25 of Lynn, Pinker, Cox & Hurst. I am the lead counsel
Tina Fett, CSR
#oof 114
1 for Funimation Productions in this case, and I've been
2 lead counsel since April of 2019 when I was hired to
3 be Funimation's counsel. I have overseen the work in
4 the case by virtue of my experience as a litigator at
5 the trial court level and the appellate court level in
6 the state of Texas since 1997, and I have gained
7 knowledge that would qualify me -- knowledge and
8 experience and training that would qualify me to offer
9 an opinion about reasonable attorney's fees in this
10 case.
11 Q. And Mr. Volney, what legal education have
12 you had?
13 A. I went to Duke Law School where I graduated
14 in 1997.
15 Q. And what bars are you admitted to practice
16 law in?
17 A. I was admitted to the Texas State Bar in
18 November of 1997 and since then I've practiced law in
19 Texas state courts. I've been admitted and I'm
20 admitted to the various federal district courts in the
21 state of Texas and to the Fifth Circuit Court of
22 Appeals.
23 Q. And Mr. Volney, how does your work
24 experience help you determine what reasonable fees are
25 for the work in this case?
Tina Fett, CSR
#oof 115
1 A. Well, as a partner at Lynn, Pinker, Cox &
2 Hurst since 2006, I've had responsibility for
3 generating my own clients, so as a part of that I have
4 primary responsibility on many of my cases to enter
5 time, review bills, issue bills, and get those bills
6 paid by my clients, so I have sort of hands-on
7 experience in the billing process.
8 Professionally speaking, on occasion I
9 have put together affidavits and declarations for
10 other partners in my office related to attorney's
11 fees. I have been designated as an expert on
12 attorney's fees in certain cases, and by virtue of my
13 experience I know what reasonable attorney's fees are
14 in the DFW Metroplex. I've practiced in courts here
15 in Tarrant County and also in cases in Dallas County
16 in federal court and in state court.
17 Q. Now, Mr. Volney, can you briefly explain
18 the method that you went through to arrive at your
19 opinions?
20 A. Well, to be fair, I went through the same
21 methodology that Mr. Lemoine described this morning,
22 which was to review the recent Texas Supreme Court
23 case in Rohrmoos and apply the framework that the
24 Texas Supreme Court mandated in that case, which in
25 that sense involved my gathering the billing
Tina Fett, CSR
#oof 116
1 statements for my firm over the course of the case,
2 assuring myself that the hourly rates that were being
3 charged by the professionals in the case who are me,
4 as a lawyer in charge; my associate, Christian Orozco,
5 who unfortunately wasn't able to be here today; and
6 Mr. Smoot, who is handling the exhibits, assuring
7 myself that they are not only what's reasonable,
8 looking at the bills, exercising billing judgment in
9 the same way that Mr. Lemoine described this morning,
10 by reducing entries that seemed to be duplicative or
11 not necessary in my judgment as a lawyer, having
12 reviewed bills before, to come up with a Lodestar
13 amount, and then in my affidavit. And I'm prepared to
14 talk today about the Andersen factors, so it's
15 essentially -- I think it's a three-step process, I
16 would say.
17 Q. And have you created a chart to summarize
18 Funimation's attorney's fees for this matter that are
19 reflected in the billing records?
20 A. Yes, I have.
21 Q. And if you'll flip to tab -- to Exhibit 7,
22 and I believe it's the third page in.
23 A. Okay. So Exhibit 7 --
24 Q. In the binder there.
25 A. Yes, Exhibit 7 includes a single page sheet
Tina Fett, CSR
#oof 117
1 called Funimation Fee Summary Chart, which is intended
2 to be a summary of the billing since the inception of
3 the lawsuit through -- technically through just the
4 end of October, and then for the appeals that I
5 created by taking information from our invoices as I
6 adjusted it through my exercise of billing judgment.
7 Q. And you created this chart?
8 A. I did.
9 MS. ADAMS: Your Honor, I would move to
10 admit this chart at Exhibit 7B, just this page, as a
11 summary under Rule 1006.
12 THE COURT: 7 had the -- there's all
13 three in here in 7. So you just want the Funimation
14 summary?
15 MS. ADAMS: Yes, Your Honor. Earlier
16 they admitted the last two as 7A.
17 THE COURT: So I'll make this 7B.
18 Any objection?
19 MR. MARTINEZ: No objection, Your
20 Honor.
21 THE COURT: 7B is admitted.
22 (Defendant's Exhibit 7B admitted)
23 Q. (By Ms. Adams) Mr. Volney, one of the
24 columns in this chart is the amount after reduction
25 and the percent of reductions for each month. Can you
Tina Fett, CSR
#oof 118
1 explain what objections you made and why you made
2 them, in general?
3 A. Did you say objections or --
4 Q. I'm sorry. Reductions.
5 A. Okay. So after I had reviewed the hourly
6 rates for each of the billers in the case, we went
7 through that same sort of analysis that Mr. Lemoine
8 did to assure myself that my hourly rate of $500,
9 Mr. Orozco's rate at $410 and hour, and Mr. Smoot's
10 hourly rate of $220 were reasonable under the
11 circumstances given the complexity of this case and
12 where the case was located, etcetera.
13 I then went and looked back at the
14 bills, which are at -- I think we called it 2C,
15 Exhibit 2C, and went through them on an entry by entry
16 basis and where I believe that there were -- the entry
17 wasn't necessary for obtaining the ruling on the TCPA
18 motion to dismiss, I either eliminated it entirely or
19 reduced it.
20 So, for example, on page 42 of Exhibit
21 2C and 43, Mr. Orozco had billed a substantial amount
22 of time for researching case law related to the TCPA,
23 and in my handwritten notes there I reduced that entry
24 by 50 percent. And then that reduction on a monthly
25 basis would be captured in the column on Exhibit 7B
Tina Fett, CSR
#oof 119
1 that identified the reduction.
2 And as you flip through these bills,
3 you see time being excluded. For example, I didn't --
4 obviously it's my choice to be in Dallas and the case
5 is in Tarrant County. I didn't -- I removed charges
6 for time I spent traveling here or others spent
7 traveling here to attend depositions or hearings, and
8 excluded other entries that in my billing discretion I
9 thought could be excluded from the overall number.
10 And then I captured all of that in 7B
11 and identified a percentage reduction on a monthly
12 basis and came up with the number $168,941 for fees,
13 which are fees that we will be seeking through the
14 entry of judgment in this matter, and that won't
15 include time for November, which we're just not going
16 to seek in terms of this hearing, and then calculated
17 a total percentage reduction of 15.2 percent.
18 So as of the end of the end of October,
19 we billed just under $200,000. As an exercise of
20 billing judgment, I reduced that by about 15 percent
21 to, in essence, $169,000, approximately.
22 Q. And in addition to reducing or excluding
23 certain entries because you thought they weren't
24 strictly necessary, did you exclude or reduce any
25 necessaries that you thought were duplicative?
Tina Fett, CSR
#oof 120
1 A. For example, there were -- there were
2 entries that I believe to be duplicative of time
3 between me and Mr. Orozco. Obviously, I'm the partner
4 in charge of the case, so I've spent some time
5 redrafting and rewriting some of the briefs that he
6 prepared for me, so those were eliminated.
7 Over the course of the case I had asked
8 Mr. Smoot to do some review of sort of what was going
9 on on social media, those entries were excluded from
10 the fee application here.
11 Q. And moving on to the total for the
12 conditional appellate fees, can you explain how you
13 came up with those numbers?
14 A. So it's not a sort of rocket science. I
15 went through the same sort of analysis that Mr.
16 Lemoine went through. I, using a blended rate of
17 approximately $500 an hour, which would be the rate of
18 an associate, my rate, or the rate of an appellate
19 partner at our law firm, I assumed it would take about
20 100 hours to handle the appeal at the Second District
21 Court of Appeals, so I just multiplied 100 times 500
22 to come up with the number of $50,000 for that appeal.
23 And then I want to make a little bit of
24 a clarification here as to the petition for review
25 stage. My overall opinion is proceedings in the Texas
Tina Fett, CSR
#oof 121
1 Supreme Court are likely to cost about $50,000, and I
2 want to engage in a little bit of the same math that
3 Sean Lemoine engaged in in that I believe the initial
4 petition for review stage where you ask the Texas
5 Supreme Court to accept review of your case will be
6 about $25,000.
7 And then I think there are two
8 additional stages out of that, which total $25,000. I
9 think merits briefing on top of the initial petition
10 for review briefing will cost about $15,000, because
11 in my experience in briefing cases to the Texas
12 Supreme Court for petition for review, when the Court
13 asks for a merits brief, it is really an opportunity
14 for you just to expand on what you have already done
15 at the petition for review stage, so an additional
16 $15,000, but then if there is an oral argument on top
17 of that, I think it would be an additional $10,000 in
18 attorney's time taking into account how much time it
19 takes to prepare for that oral argument.
20 Frankly, if I'm going to argue this
21 case before the Texas Supreme Court, I'm going to
22 really work hard, but just as sort of a general number
23 now, $10,000 additional is a reasonable amount to
24 expect.
25 Q. Okay. And what were the rates for each
Tina Fett, CSR
#oof 122
1 professional at your firm that worked on this case for
2 Funimation, hourly rates?
3 A. As I stated, my rate is 500, which is the
4 rate that the client has agreed to pay me for my time
5 in this case. Mr. Orozco's rate is 410,000 -- I'm
6 sorry. He wishes. His rate is $410 per hour. And
7 Scott Smoot's rate as the paralegal in the case is
8 $220 per hour.
9 Q. And do you have an opinion as to whether
10 these hourly rates are reasonable?
11 A. Yes, and for substantially the same reasons
12 as Sean, although I would differ just a little bit in
13 that I think there is really not that much of a
14 difference in terms of the legal market between Dallas
15 and -- or Dallas County, where I usually practice, and
16 Tarrant County, I think it's really sort of the DFW
17 market.
18 And my firm charges the same rates
19 whether we're in Dallas County, Tarrant County, or
20 Collin County. I had a case in Parker County
21 recently. So I would view the market as a little bit
22 bigger than what Mr. Lemoine testified about.
23 Q. And with respect to Mr. Orozco, can you
24 explain your basis for why $410 per hour is reasonable
25 for his services?
Tina Fett, CSR
#oof 123
1 A. So Mr. Orozco has been licensed to practice
2 law since 2012. He went to Stanford undergrad and
3 then Vanderbilt Law School. He began his career
4 practicing at DLA Piper in San Francisco, so his
5 initial license was actually granted by the state of
6 California.
7 He then subsequently held a two-year
8 federal clerkship in El Paso before coming to our firm
9 in 2018 and getting his Texas license.
10 So as of now he has been licensed for
11 about seven years. He brings a substantial amount of
12 experience in litigation and actual courtroom time as
13 a federal clerk that would justify a $410 rate, which
14 I think is similar to the rate that Mr. Minshull is
15 charging out in this case for Ms. Rial and Mr. Toye.
16 So that's why I think 410 is an appropriate rate for
17 him, and as I have adjusted the billing entries in the
18 course of looking at the bills.
19 Q. And can you explain why $220 an hour is a
20 reasonable for Mr. Smoot?
21 A. So Mr. Smoot is a -- he got his degree, a
22 BBA from The University of North Texas in 1995, and
23 then he got his paralegal certificate, I think, in
24 1999, also from The University of North Texas.
25 And since the year 2000, he has been
Tina Fett, CSR
#oof 124
1 practicing in this market as a paralegal. $220 is the
2 rate that my firm charges out its more experienced
3 paralegals at. Scott is one of our more experienced
4 paralegals. He has really been indispensable to this
5 case, and the professional quality of the filings that
6 are done by my client are largely due to Scott's work
7 as a paralegal, managing the documents, helping us put
8 together those documents, doing the research on the
9 depositions, excerpts and other things that are
10 attachments to those documents. So I think 220 is
11 clearly a justifiable rate for him in this case. And
12 I think the Court has seen his work today with
13 Mr. Lemoine.
14 Q. And you also mentioned that part of your
15 methodology for arriving at your opinions is that you
16 considered the Anderson factors. So I just want to
17 ask you a little bit more about those.
18 In arriving at your opinions, did you
19 consider the reasonable time and labor required for
20 this case?
21 A. Yes, that goes into, you know, from the
22 time that the bill is created and goes to the client
23 in connection with the billing judgment that I have
24 exercised.
25 Q. And what about the novelty and difficulty
Tina Fett, CSR
#oof 125
1 of the legal questions involved?
2 A. Yes, I considered that. I think that
3 supports the fee opinion that I have in this case. It
4 has been a -- it has involved some pretty nuance
5 issues, the first amendment law and the TCPA, which is
6 sort of a hot button in Texas practice. This is
7 actually, I think, only my second TCPA motion as a
8 litigator.
9 Q. And did you also consider the skill
10 required to perform the legal services for this case
11 properly?
12 A. Yes, and I think that factor supports this
13 award. We clearly got the -- or obtained the result
14 that our client wanted.
15 Q. Did you consider whether the acceptance of
16 this case would preclude you or any of the attorneys
17 at your firm for employment of other cases?
18 A. That is actually one of the factors, it
19 doesn't really support or detract from the
20 reasonableness of the award that we're seeking.
21 Q. And did you consider the fees customarily
22 charged in the locality of Fort Worth for similar
23 services?
24 A. Yes, and that factor also supports the fee
25 request that we have in this case.
Tina Fett, CSR
#oof 126
1 Q. And I believe you mentioned before, but did
2 you consider the amount involved for the results
3 obtained?
4 A. Well, when the lawsuit was filed, I believe
5 it indicated that Mr. Mignogna was seeking in excess
6 of a million dollars in damages. So given the
7 seriousness of the lawsuit, the attention that
8 surrounded the lawsuit, the importance of the lawsuit
9 to my client, that also justifies the fee award that
10 we're seeking in the case.
11 Q. Did you consider any time limitations
12 imposed by the client or the circumstances of the
13 case?
14 A. The answer to that is yes, and obviously
15 because it's a TCPA motion we had to move rather
16 quickly from the time the lawsuit was filed to getting
17 our motion on file, and we didn't seek an extension of
18 that deadline. We filed within the -- I think it's a
19 90-day deadline from the time that the lawsuit was
20 served.
21 Q. And so did that factor support your
22 opinion?
23 A. It does.
24 Q. Did you consider the nature and the length
25 of the professional relationship with the client at
Tina Fett, CSR
#oof 127
1 all?
2 A. Also a factor, this is the first time I
3 have done work for Funimation Productions.
4 Q. And did you consider the experience,
5 reputation and abilities of the lawyers performing the
6 services?
7 A. Yes, I did. And I think the experience,
8 reputation and ability of the lawyers in my firm has
9 been demonstrated by our conduct and filings and
10 performance in this case.
11 Q. And last, did you consider whether the fee
12 is fixed or contingent on the results obtained?
13 A. That's another neutral factor as -- I
14 charge out at -- we charge out an hourly rate in this
15 case.
16 Q. Overall did you conclude that the Andersen
17 factors generally supported your opinions in this
18 case?
19 A. I did.
20 Q. And if you'll flip to Exhibit -- what we've
21 marked as Exhibit 2E.
22 A. 2E, yes.
23 Q. Do you recognize what these documents are
24 in Exhibit 2E?
25 A. So 2E are the invoice -- are the principal
Tina Fett, CSR
#oof 128
1 invoices that back up the expense entry of $7,504 that
2 is in 7B, and these are invoices for the depositions
3 that were taken in the case. We did three
4 depositions.
5 We had a relatively small amount of
6 like $150.00 from Pinnacle for outside copying for
7 exhibits for depositions and for the hearing.
8 And then we had a court reporter fee of
9 $350 for the September 6th hearing, which we had
10 Ms. Fett provide to us.
11 And then the other principal expense
12 was the mediation fee, which was a total of $2,250.
13 And on top of that, if you look at the actual
14 underlying bills, they will reflect some additional
15 expenses of Westlaw charges, court parking, and some
16 in-house copying charges. The total amount that we're
17 seeking in terms of the expense part of it under the
18 TCPA is $7,504.
20 these fees and expenses were reasonable and necessary
21 in this case?
22 A. I do have that opinion, and the opinion is
23 that they were reasonable and necessary in this case.
24 Q. And does the chart that's in 7B, does this
25 recap what you're asking, what Funimation is asking
Tina Fett, CSR
#oof 129
1 the Court to award in incurred fees, appellate fees,
2 and costs and expenses?
3 A. Yes, with the one caveat that the petition
4 for the review of $25,000 should be split between
5 15,000 and $10,000 similar to what -- how Mr. Lemoine
6 split his.
7 Q. And the last thing I want to do with you,
8 Mr. Volney, is go over a couple of the arguments or
9 issues that the plaintiff raised in their response.
10 They had a few complaints, and I just wanted to ask
11 you about that in the billing.
12 The first one is if you go to page 2C
13 on page 36, which is April 26th bill. They complain
14 that there were two block billing entries identified
15 for this date, and my question to you is: Is that
16 true?
17 A. Generally speaking, we bill this case on a
18 tax-based billing methodology. We didn't -- although
19 block billing is not prohibited by Texas practice.
20 We, because of the way the client asked us to bill the
21 case, attempted to do it on a tax-based method.
22 And there are certain entries -- this
23 is an entry for half an hour when I first got the case
24 when I reviewed the pleadings and checked server
25 status, because obviously the first thing you do is
Tina Fett, CSR
#oof 130
1 try to figure out when your answer deadline is. That
2 was one instance where there was block billing. It's
3 a small amount that splitting up is not really going
4 to make any material difference. But we did our
5 billing on a tax-base billing.
6 Q. Another general complaint that the
7 plaintiff raised was they said that defendant has
8 pursued a strategy of hunting and attacking public
9 statements made by the plaintiffs and non-parties and
10 seeks sanctions to silence the plaintiff; is that
11 true?
12 A. That's what they said in their response.
13 That's not true. My client -- neither my client nor I
14 made any public statement about this lawsuit since it
15 was filed.
16 And to the extent that we've talked
17 about public statements made by others, it's been in
18 connection with matters that were relevant to our TCPA
19 motion or to the request for sanctions.
20 Q. And if you'll flip with me to page 52 of
21 Exhibit 2C for the bill on July 29th, plaintiff has
22 criticized two entries for a total of .4 hours here
23 for block billing. Do you have any opinion as to
24 whether any of these entries are block billing or
25 inappropriate?
Tina Fett, CSR
#oof 131
1 A. I think they were criticizing -- if I
2 recall correctly, they were criticizing my invoices
3 for too much redaction. I think that was the
4 complaint that they were lodging against these and
5 other redactions.
6 Two responses. One is I think I have
7 appropriately redacted to exclude attorney work
8 product and attorney-client communications from the
9 bills, which they wouldn't be entitled to review in
10 connection with this exercise.
11 I also brought with me copies of my
12 bills in an unredacted format to provide the Court for
13 in-camera review, should the Court wish to take a
14 closer look.
15 Q. Okay. Additionally, the plaintiff
16 complained that on August 1st, which is page 56 of
17 Exhibit 2C that there are inconsistent attorney time
18 entries for a hearing in preparation for the hearing.
19 Do you have any opinion as to -- or an explanation as
20 to why there may have been different time entries
21 between you and Mr. Orozco for preparing for this
22 hearing?
23 A. As of -- well, it's a relatively small
24 discrepancy. It's that Christian is at like .7 for
25 preparing for the telephonic hearing, and I'm at .3.
Tina Fett, CSR
#oof 132
1 I have a pretty easy explanation for that. August 1st
2 I was traveling to Chicago for a wedding, so I asked
3 Mr. Orozco to get ready for the hearing in case I was
4 not able to join the conference call with the Court
5 that morning, which I believe was on a motion for
6 continuance that Mr. Beard had filed or Mr. Beard's
7 client had filed. So I asked him last minute to get
8 ready, and he had to spend some additional time,
9 longer than I had, because I had been more intimately
10 involved in the discussions leading up to August 1st.
11 Q. Another complaint that the plaintiff had
12 was in general in August there was about $4,000 billed
13 for meetings and conferences and emails with
14 co-defendant's counsel. Do you have an opinion as to
15 why these incurred for these types of conferences with
16 co-defendant's counsel would be reasonable and
17 necessary?
18 A. Well, I read that in their response and
19 then I went back and looked at my August bill, and I
20 don't see $4,000 in conferences with co-counsel in the
21 month of August. I will say that I did identify,
22 before they raised that complaint, some conferences,
23 and I excluded them from the bill.
24 But a lot of the reason why we
25 prevailed on -- or a lot of the reasons why we
Tina Fett, CSR
#oof 133
1 attribute our -- the Court's result on the TCPA is
2 because there was some coordination between the
3 lawyers to streamline the presentation of the -- at
4 the hearing, which was September 6th. And you weren't
5 involved in the case at the time, but their response
6 to our TCPA motion was filed on late Friday night or
7 early Saturday morning on August 30th or August 31st,
8 so we hit the ground running first thing on August
9 31st and spent a substantial amount of time together
10 game planning our presentation for the Court. So
11 that's why there is so many conferences.
12 And in addition to that, we worked
13 together to file an omnibus objection to the evidence
14 that they had submitted to the Court.
15 Q. Now, if you flip to page 61, the entry for
16 August 31st, the plaintiff has complained that there
17 are entries that are inconsistent between you and
18 Mr. Orozco in the time spent preparing for and
19 attending the meeting with the co-defendants.
20 Do you know why there were
21 inconsistencies or a difference in time spent between
22 you and Mr. Orozco for this?
23 A. I do. Mr. Orozco is in charge of preparing
24 the PowerPoint for the Court hearing on September 6th,
25 so he got to the office early to spend more time than
Tina Fett, CSR
#oof 134
1 I did. He's the PowerPoint guy, I'm not. So that's
2 why there would be a small discrepancy between the
3 preparation time between him and me.
4 Q. And last, the plaintiff has complained that
5 the bill contained fees for watching YouTube videos
6 and things like that. Is that true?
7 A. That is not true. I went back and looked
8 through all the bills, and as part of my billing
9 judgment exercise, one of the things that Mr. Smoot
10 would occasionally do was fill me in on what was going
11 on in the YouTube world.
12 I excluded the handful of entries
13 related to that from the billing, and the only billing
14 that may have gone through related to any appearance
15 on YouTube was related to the transcript of the
16 October 4th for Rekieta stream that was attached as an
17 exhibit to our motion for sanctions.
18 Q. Thank you.
19 MS. ADAMS: I pass the witness.
20 MR. LEMOINE: I've got a few questions.
22 BY MR. LEMOINE:
23 Q. Can you identify Exhibit 17 in the binder?
24 A. Exhibit 17 is excerpts from a Nick Rekieta
25 and Ty Beard YouTube stream that occurred on October
Tina Fett, CSR
#oof 135
1 4th, 2019 that I asked Dickman Davenport to transcribe
2 to make part of my filing on the motion for sanctions
3 and fees.
4 Q. And have you watched that video?
5 A. I have had the pleasure of watching the
6 video.
7 Q. And does the transcript that was done, does
8 it accurately reflect the video?
9 A. It accurately reflects the time stamps that
10 are identified on the written document. It's an
11 accurate transcription of what was going on on the
12 screen.
13 MR. LEMOINE: I move to admit Exhibit
14 17 into evidence.
15 MR. MARTINEZ: I'm going to object,
16 Your Honor. It's irrelevant. This is, again, going
17 back to Mr. Rekieta. It has no bearing on the award
18 for attorney's fees or sanctions as it relates to the
19 filing of the TCPA motion.
20 THE COURT: Is there something specific
21 in the 13 pages that I need to know about?
22 THE WITNESS: Is that addressed to me?
23 THE COURT: No, I guess it's addressed
24 to him. He is offering it.
25 MR. LEMOINE: Yes, Your Honor.
Tina Fett, CSR
#oof 136
1 THE COURT: What page? I mean, this is
2 October 4th, I'm assuming that date has some
3 significance.
4 MR. LEMOINE: Yes.
5 THE COURT: That was the day I signed
6 the TCPA order. So what in here do I need to know
7 that happened on the day that I signed the TCPA order?
8 MR. LEMOINE: It is --
9 THE COURT: Have y'all read it?
10 THE WITNESS: Your Honor, I can answer
11 the question.
12 THE COURT: That would be nice if
13 somebody could.
14 MR. LEMOINE: It's page five, a
15 statement from Mr. Beard on Mr. Rekieta's show
16 declaring that they have won.
17 The Court made a comment earlier to Mr.
18 Mignogna about this spiraling out of control. We
19 believe that it spiraled out of control because this
20 was the plan for Mr. Mignogna and Mr. Beard and
21 Mr. Rekieta the whole time was to use this channel,
22 which Mr. Beard goes on a regular basis, to drum up
23 the hatred. And the deterrence part of this case, we
24 think the Court should be allowed to take a look at
25 this evidence.
Tina Fett, CSR
#oof 137
1 This is no longer, you know,
2 Mr. Mignogna saying I have no idea what's going on.
3 His agent goes on that show after you dismissed his
4 entire case and says we won, and does the happy dance.
5 THE COURT: I thought you didn't have
6 any evidence of agency.
7 MR. LEMOINE: Well, I didn't -- I
8 hadn't put it into the record. I personally -- I
9 reviewed that -- I believed that to mean did Sean
10 Lemoine have -- hear something --
11 MS. ADAMS: And, your Honor --
12 MR. MARTINEZ: If I may, Your Honor.
13 THE COURT: Yes, what is your
14 objection?
15 MR. MARTINEZ: My objection is
16 relevance, again, Your Honor. This is talking about a
17 statement made by specifically Mr. Beard on the case
18 where, again, as Your Honor has stated, the purpose of
19 this hearing is to determine the proper amount of
20 attorney's fees and whether any sanctions are due
21 relating to the filing of the suit.
22 This occurred after the filing of the
23 suit. It's irrelevant as a matter of course, and it
24 should not be considered by the Court.
25 The vast majority of the time that
Tina Fett, CSR
#oof 138
1 Mr. Lemoine has been --
3 MR. MARTINEZ: Thank you, Your Honor.
4 THE COURT: You're still up, if you
5 want to keep asking question.
6 MR. LEMOINE: I believe I need to make
7 an offer of proof.
8 THE COURT: You proved it up, I guess,
9 to the extent that -- through him, right?
10 MR. LEMOINE: Yes. I moved it into
11 evidence and you sustained it.
12 THE COURT: So what do you want to do
13 for your offer of proof?
14 MR. LEMOINE: As my offer of proof I
15 move Exhibit 18 into evidence. In its entirety it
16 establishes that the plaintiff -- in particular on
17 page 4 and page 5 -- on page 4, line 19 through 24,
18 Mr. Beard declares that the loss in this case is
19 irrelevant.
20 And, of course, they talk on page 5
21 where he says they won, and that goes to it just being
22 a frivolous lawsuit designed to shut up my clients,
23 and that there is no deterrence to the plaintiff if he
24 can file this lawsuit, and if he wins and already
25 wants to sue more people.
Tina Fett, CSR
#oof 139
1 THE COURT: Okay. So I've excluded 17.
2 Do you want to do anything else with regard to 17?
3 MR. LEMOINE: No, Your Honor.
4 THE COURT: Okay.
5 MR. MARTINEZ: Then we would simply ask
6 if he wants to do it as an offer of proof, he needs to
7 read the entirety of the statement.
8 THE COURT: I don't think you get to do
9 his appellate work for him.
11 THE COURT: Are you done?
12 MR. LEMOINE: Yes. I pass the witness,
13 Judge.
14 THE COURT: Would anyone else like to
15 ask questions?
16 MR. MARTINEZ: Yes, Your Honor.
17 THE COURT: Okay. If we speed this up
18 a little bit, we might get done.
20 BY MR. MARTINEZ:
21 Q. Mr. Volney, you indicated that as a part of
22 your testimony today that you did review the recent
23 Rohrmoos factors for the Lodestar method in
24 determining what was necessary to establish reasonable
25 and necessary fees; and am I characterizing your
Tina Fett, CSR
#oof 140
1 testimony correctly?
2 A. I think that's right.
3 Q. Looking at not just the Rohrmoos factors,
4 but in general when the Court is determining whether
5 certain fees or whether certain charges are necessary,
6 does there -- would you agree with me that the courts
7 have routinely held that there has to be sufficient
8 information within the bills or in the record to
9 establish -- to allow the Court to determine that that
10 work specifically was related to the prosecution of
11 the case, and therefore is a reasonable and necessary
12 expense?
13 A. I think that's a fair statement.
14 Q. So just by way of example, page 57, the
15 third entry, actually one of your entries, states
16 review status. Based on the information before the
17 Court, how can the Court determine whether that was
18 necessary to prosecute this case?
19 A. Well, the Court can do two things. One is
20 the Court can look at the entirety of the bill from
21 August 1st, August 2nd, and remember that we had our
22 motion for continuance heard on August 1st, and then
23 our Rule 11 agreement that was submitted to the Court
24 on August 3rd.
25 But other than that, like I testified in
Tina Fett, CSR
#oof 141
1 response to Ms. Adams' questions, I have unredacted
2 copies of the bills available to the Court to review,
3 if the Court is interested.
4 Q. To be sure I understand your testimony,
5 your testimony is that it is your professional opinion
6 or your expert opinion as relates to fees, that the
7 Court can assume what a redacted entry was to
8 determine whether it was necessary?
9 A. No, I don't think the Court can assume
10 that. I think the Court can look at the actual
11 underlying bill if the Court desires.
12 Q. For a specific line item, though, the Court
13 is to take context of the bill?
14 A. That's one thing the Court can do, if the
15 Court is not interested in looking at my overall bill.
16 Q. What are the requirements for including the
17 fees of a paralegal under Texas law, specifically Gill
18 Savings Association versus International Supply
19 opinion, 759 S.W.2d 697 out of Dallas, writ denied.
20 There is a five-factor test. Are you
21 familiar with this case, to determine whether legal
22 assistant fees or paralegal fees can be included as
23 part of the billing?
24 A. I think I have read the case. I have seen
25 the factors, but I don't know them off the top of my
Tina Fett, CSR
#oof 142
1 head. I can tell you what Mr. Smoot did.
2 Q. So specifically one of the factors is that
3 the legal assistant performed substantive legal work
4 under the supervision of the attorney.
5 And in reviewing the bill, is it your
6 testimony that the entirety of these billing records,
7 every one of these entries, that you did not exclude
8 that was from your legal assistant was substantive
9 legal work in that regard?
10 A. That's what Mr. Smoot does. He does
11 substantive legal work. If there's one that I missed,
12 I'm willing to talk about it.
13 Q. So, for example, page 57, August 1st, 2019,
14 participate on hearing call with the Court on motion
15 for continuance. That was a telephonic hearing. How
16 did Mr. Smoot participate in the hearing?
17 A. Well, as I testified in response to
18 Ms. Adams' questions, I was traveling that day, and
19 Mr. Smoot listened in on the call, along with
20 Mr. Orozco, to be able to put together any Rule 11
21 agreement or other order that resulted from that
22 particular phone call to the Court.
23 Q. So you had your associate at $435 an hour,
24 if I remember correctly, and your paralegal at $220 an
25 hour, both listening in to a call to put together a
Tina Fett, CSR
#oof 143
1 Rule 11, in addition to your $500 an hour rate?
2 A. It looks like it from the bill.
3 Q. And did you actually attend that hearing?
4 A. It turns out that I made it to my hotel in
5 time to call in, and I didn't have time to call
6 everybody else off and didn't realize whether my --
7 well, let me answer your question directly. Yes, I
8 did.
9 Q. So you're -- just to be sure I completely
10 understand what happened here. You advised your
11 associate to spend extra time in case you couldn't
12 make the hearing. Your associate spent that extra
13 time, and you ultimately made the hearing, despite the
14 fact that you attended the hearing yourself and billed
15 for it, you still billed all that extra time from the
16 associate and the paralegal because you didn't have
17 time to call them off?
18 A. That's what this shows.
19 Q. And you believe that each one of those
20 charges would have been necessary and not duplicative
21 under the Rohrmoos standards?
22 A. Under the circumstances of that day, yes.
23 Q. So your testimony would be, essentially,
24 that should the Court agree with you on that part,
25 that Mr. Mignogna should pay for the fact that you
Tina Fett, CSR
#oof 144
1 thought you weren't going to make it because of your
2 travel?
3 A. That's part of the practice of law.
4 Q. When Mr. Smoot reviews a motion, what legal
5 work does he do, in your opinion to read a motion or
6 review a motion?
7 A. I guess it depends on the motion.
8 Q. So, for example, on page 44, June 21st,
9 2019, there is an entry for Mr. Smoot for two-tenths
10 of an hour, review motion to compel filed by
11 defendants Toye and Rial. Based on this entry
12 unredacted in its entire form, what substantive legal
13 work did Mr. Smoot do that would further the
14 prosecution of the TCPA motion?
15 A. So when motions like that get filed in the
16 case, Mr. Smoot will review them and then brief me on
17 what relief is being sought in a particular motion.
18 Q. So where within this statement, within this
19 bill does it say that he briefed you on it?
20 A. It doesn't say that there.
21 Q. So based on the way we're reading it here,
22 he simply reviewed it and you billed for it?
23 A. He reviews the motion and makes sure the
24 motion ends up in the appropriate location on our
25 system.
Tina Fett, CSR
#oof 145
1 Q. So he performs a clerical task of making
2 sure that he uploads a motion?
3 A. I don't think it's clerical, but --
4 Q. So uploading documents is something that an
5 attorney needs to do?
6 A. I don't mean to quibble with you, but the
7 entry says he reviewed the motion to compel. He --
8 Q. I'm simply asking --
9 A. He would have received the --
10 MR. MARTINEZ: Objection.
11 Nonresponsive, Your Honor.
12 THE COURT: Hold on. Don't interrupt
13 him. Let him answer, and then you can object.
14 Now, go ahead and answer what you want
15 to answer. Are you done?
16 THE WITNESS: He reviewed the motion.
17 Q. (By Mr. Martinez) My question is that you
18 stated he would review and upload it. Is it your
19 testimony that uploading a document is something that
20 an attorney needs to do, and that it is not a clerical
21 matter.
22 A. I guess my testimony is that as a matter of
23 practice he does upload some documents to the case
24 file and distributes them within the office, but he's
25 not billing for that. He's billing for the review
Tina Fett, CSR
#oof 146
1 time.
2 Q. You indicated that one of the factors you
3 considered was the timing of the filing of your TCPA
4 motion, and you're correct the statute does allow 90
5 days to file it.
6 What -- in reviewing your bills, the
7 first notice or notification that there was a
8 consideration of filing a TCPA motion was back in May.
9 What was the reasoning behind waiting two and a half
10 months or two or three months to file it?
11 A. I think to answer that question I have to
12 reveal attorney-client communications and attorney
13 work product.
14 Q. Would you agree with me that the purpose of
15 the TCPA is to dispose of cases as quickly as
16 possible?
17 A. I think that's one of the stated purposes
18 if you look at the case law.
19 Q. And if your billing records indicates that
20 the plan was to file a TCPA motion as early as May,
21 and it did not get filed until July, after tens of
22 thousands of dollars worth of legal bills were already
23 incurred, how does that advance that purpose of
24 reducing the legal fees and getting everything
25 resolved?
Tina Fett, CSR
#oof 147
1 A. My understanding -- well, my recollection
2 is that your co-counsel, Mr. Beard, and Mr. Erick had
3 decided that they were going to take depositions of
4 Mr. Mignogna, Ms. Rial, and Mr. Toye, and that didn't
5 occur until the end of June --
6 Q. So --
7 A. And I waited until -- because I felt like
8 my TCPA motion would be stronger if it occurred after
9 those depositions had taken place. So I felt like I
10 had a better chance to beat your client on a TCPA
11 motion having heard what he had to testify about
12 beforehand, so I think ultimately the strategy worked
13 correctly.
14 Q. In discussing or in determining proper rate
15 for attorneys and paralegals, etcetera, one of the
16 requirements is that you analyze and consider
17 comparable rates in the area. I know you said you
18 somewhat disagree with your co-defense counsel,
19 Mr. Lemoine, as to the size of the DFW market;
20 however, what investigation, if any, did you put
21 forward to determine the proper or normal rate for a
22 paralegal?
23 A. Well, I have, as I indicated, reviewed
24 billing in the past that would have included paralegal
25 time. I know what charges my -- the paralegals in my
Tina Fett, CSR
#oof 148
1 firm charge, and I don't think -- I don't even think
2 Scott is at the top of the chart in terms of paralegal
3 billing rates, so that's the extent of it.
4 Q. So no research outside of your firm?
5 A. Other than what I would have seen in other
6 law firms' billing submissions and the course of my
7 practice.
8 Q. So specific to putting together your report
9 today and your testimony today that you believe it is
10 a reasonable rate of $220 for a paralegal, the only
11 research you did was to see how much your firm
12 normally bills and maybe your recollection, I guess,
13 based off of other cases?
14 A. Well, that's a characterization. I mean,
15 that's based on my recollection of working other cases
16 where paralegal time has been sought.
17 MR. MARTINEZ: I pass the witness, Your
18 Honor.
19 THE COURT: Anybody else?
20 MS. ADAMS: Pass the witness.
21 THE COURT: Anybody else?
22 How is -- and correct me if I'm wrong,
23 but your bill is $100,000 less than his bill, or 120?
24 THE WITNESS: The answer is yes. And I
25 can explain some of the reasons why I believe that is.
Tina Fett, CSR
#oof 149
1 Yes, is the answer to your question.
2 THE COURT: And you have been in the
3 case the same amount of time he has, right?
4 THE WITNESS: Yes. The claim
5 against -- well, I'll answer your question.
6 THE COURT: I mean $100,000, what is
7 that divided by 500 an hour, 200 hours?
8 THE WITNESS: That's right.
9 THE COURT: So he spent 200 more hours
10 to prosecute this case than you did?
11 THE WITNESS: Yes. May I --
12 THE COURT: Do you think that's
13 reasonable that someone would charge $100,000 more on
14 basically the same case?
15 THE WITNESS: I think that -- well, the
16 answer is yes.
17 THE COURT: Do you think his bill is
18 reasonable?
19 THE WITNESS: I will tell you, I
20 haven't looked at his bill carefully. I think the
21 claims against his client were different than the
22 claims against my client.
23 THE COURT: They're $100,000 different?
24 I mean, he's an expert. It shouldn't take him 100
25 more hours than you.
Tina Fett, CSR
#oof 150
1 All right. You can go.
2 THE WITNESS: Thank you, Your Honor.
3 THE COURT: Is anyone else going to
4 testify?
5 MR. FRIEDMAN: Yes, Your Honor, I call
6 Sam Johnson.
7 THE COURT: All right. Watch your
8 step.
9 MR. VOLNEY: Your Honor, with the
10 Court's permission, can I step outside for a minute?
11 THE COURT: Sure.
12 SAMUEL H. JOHNSON,
14 MR. FRIEDMAN: Good afternoon, Your
15 Honor, may it please the Court. My name is Max
16 Friedman, and I'm asking questions on behalf of Jamie
17 Marchi.
18 THE COURT: Okay.
20 BY MR. FRIEDMAN:
21 Q. Mr. Johnson, can you please state your name
22 for the record.
23 A. Sam Johnson.
24 Q. Can you please tell the Court about your
25 current job and the position that you hold in it?
Tina Fett, CSR
#oof 151
1 A. Yes. I am a manager of the law firm of
2 Johnson & Sparks, PLLC. I am one of two managers of
3 the law firm.
4 Q. When did you start at this law firm?
5 A. This is a subsequent iteration of several
6 different entities, but I started my own law firm in
7 2012.
8 Q. Can you describe your educational
9 background and your years of licensing?
10 A. Yes. I have a bachelor's degree from The
11 University of Texas in Austin and went to law school
12 at South Texas College of Law in Houston. I was
13 licensed to practice law in the state of Texas in
14 November of 2008, and I have been practicing regularly
15 throughout the Metroplex ever since.
16 Q. What does your practice focus on
17 primarily?
18 A. Mostly business litigation cases, also
19 business transactions and other miscellaneous cases,
20 including several defamation cases and several
21 personal injury cases.
22 Q. And who do you represent in this case?
23 A. Defendant Jamie Marchi.
24 Q. When were you hired by Ms. Marchi?
25 A. I believe we were hired in May of this
Tina Fett, CSR
#oof 152
1 year.
2 Q. Okay. And now I'm going to ask you to turn
3 to Defendant's Exhibit 1 in the exhibit binder,
4 please.
5 A. Okay.
6 Q. Do you recognize this document?
7 A. Yes.
8 Q. What is this?
9 A. This is a declaration that I prepared and
10 signed in conjunction with Ms. Marchi's motion for
11 fees and sanctions in this case.
12 MR. FRIEDMAN: Your Honor, at this
13 point I would --
14 THE WITNESS: It was filed as a part of
15 that motion.
16 MR. FRIEDMAN: Your Honor, at this
17 point I would move to admit Exhibit 1, a business
18 record affidavit including Exhibits G1 through G3
19 within that exhibit.
20 MR. MARTINEZ: No objection, Your
21 Honor.
22 THE COURT: All right. So Exhibit 1,
23 G1 through G3 is admitted. Does that sound right?
24 MR. FRIEDMAN: Yes.
25 THE COURT: All right.
Tina Fett, CSR
#oof 153
1 (Defendant's Exhibit 1, G-1 through G3
2 admitted)
3 Q. (By Mr. Friedman) Mr. Johnson, I'll ask
4 you to turn to Exhibit G1.
5 A. Okay.
7 A. Yes.
8 Q. And what is it?
9 A. This is a true and correct copy of our fee
10 agreement with Ms. Marchi for representation in this
11 case.
12 Q. Okay. And can you please inform the Court
13 about what rates at which you agreed to represent
14 Ms. Marchi under this agreement?
15 A. Yes. I agreed to reduce my rate. My
16 standard rate is 350 an hour currently. We agreed to
17 represent Ms. Marchi at 250 an hour for attorney time
18 and 125 an hour for our paralegals. We have one
19 paralegal at the firm.
20 And then we also, in order to make sure
21 that I hopefully was able to get back up to my
22 standard hourly rate, we had a success bonus of $100
23 per hour if we were able to get the claims dismissed
24 within a six-month time.
25 Q. And that's all reflected in this fee
Tina Fett, CSR
#oof 154
1 agreement; is that right?
2 A. Yes. And to correct my earlier statement,
3 I see this was actually dated April, not May.
4 Q. Thank you.
5 Now turn your attention to Exhibit G2.
6 A. Okay.
8 A. Yes, this represents the totality of our
9 invoices submitted to Ms. Marchi for all time through
10 the end of October of this year.
11 Q. And do these invoices accurately reflect
12 the work performed by Johnson & Sparks, PLLC?
13 A. Yes, they do.
14 Q. And do these invoices identify the people
15 who perform these services and the rates that were
16 charged?
17 A. Yes, they do.
18 Q. Okay. Can you explain for the Court what
19 the description section of each invoice contains?
20 A. That contains a general description of the
21 work that was performed on the date indicated and the
22 amount of time spent.
23 Q. And were these invoices submitted to
24 Ms. Marchi?
25 A. Yes.
Tina Fett, CSR
#oof 155
1 Q. Has she paid them?
2 A. A small part.
3 Q. Is she expected to pay them?
4 A. Yes.
5 Q. Approximately how many hours did your firm
6 spend defending Ms. Marchi in this litigation?
7 A. That's actually in my affidavit.
8 Q. If I could refer you to your affidavit.
9 A. We billed 127 hours of attorney time and it
10 looks like 6.6 hours of paralegal time, and that was
11 through the end of October. There's a little more
12 time since then.
13 Q. I'm going to turn your attention to
14 Defendant's Exhibit 7.
15 MR. FRIEDMAN: Your Honor, this is the
16 document between 7A and B. I believe we are up to 7C
17 for this one, and that would be the first two pages of
18 that Exhibit 7.
19 THE COURT: Are you offering it?
20 MR. FRIEDMAN: I am, Your Honor.
21 THE COURT: All right. Any objection?
22 MR. MARTINEZ: The first two pages?
23 THE COURT: Yes, the first two pages.
24 MR. MARTINEZ: I'll simply say, Your
25 Honor, that he hasn't laid any predicate or foundation
Tina Fett, CSR
#oof 156
1 for offering this. He hasn't explained what it is or
2 anything.
3 THE COURT: Overruled. It's admitted.
4 (Defendant's Exhibit 7C admitted)
5 MR. FRIEDMAN: It's admitted?
6 THE COURT: Yes.
7 Q. (By Mr. Friedman) Do you recognize this
8 document, Mr. Johnson?
9 A. Yes, I do. This is a summary of the fees
10 that are charged to Ms. Marchi on page 1. Page 2 has
11 a summary of the costs expended or incurred by
12 Ms. Marchi in this case, and finally my opinion on
13 what reasonable conditional appellate fees would be in
14 the event of an appeal.
15 Q. And I see there is a column there for
16 original invoice and then total with dismissal fee.
17 Would you please explain to the Court the difference
18 between those two figures?
19 A. Yes, the total with the dismissal fee
20 includes that $100 per hour success fee, just wanted
21 to be extra clear to the Court as far as what was
22 actually invoiced and what is expected to be paid by
23 Ms. Marchi.
24 Q. Could you describe for the Court the time
25 required and the novelty and difficulty of the
Tina Fett, CSR
#oof 157
1 questions involved and the skill required to perform
2 the legal services on behalf of Ms. Marchi in this
3 case?
4 A. Yes. This has been an intense case to work
5 on. Oftentimes we would receive late filings that
6 required our office to basically drop everything we
7 were doing, to make sure that not only that we were
8 responding as promptly as possible, but oftentimes to
9 make sure we didn't miss anything.
10 With Ms. Marchi in particular, there was
11 a general lack of reference to her, the pleadings and
12 the responses and even in the little discovery that
13 was conducted, and so that actually made it take a
14 little bit more time to make sure that there wasn't
15 something that we were missing, that that information
16 was, in fact, just not made a part of the case by the
17 plaintiff.
18 Q. Can you explain to the Court the extent to
19 which this particular employment on behalf of
20 Ms. Marchi precluded your employment representing
21 other clients?
22 A. Yes. Because the amount of time,
23 especially at a small law firm like ours, we don't
24 have a lot of staff or even a lot of attorneys to hand
25 things off to. So I was the only attorney that worked
Tina Fett, CSR
#oof 158
1 on this case, as you know, for the bulk of the time
2 that we were litigating this case. And all of the
3 hours spent on this were not spent working for other
4 clients or seeking out new clients.
5 Q. And you don't have the benefit of an
6 associate, do you, Mr. Johnson?
7 A. No.
8 Q. Do these fees charged by you and the firm
9 Johnson & Sparks reflect those customarily charged in
10 a locality for similar legal services for a firm of
11 your size and with an attorney of your experience
12 level?
13 A. Yes.
14 Q. Okay. And how did you come to that
15 conclusion?
16 A. I have been doing this on my own since
17 2012, so I have been reviewing my own invoices,
18 reviewing other attorney's invoices, opposing
19 counsel's invoices for all of that time, and sometimes
20 testifying about them, or at least responding to them
21 in written pleadings. So I'm familiar with the
22 charges that law firms of all sizes charge their
23 clients throughout the Metroplex and other counties in
24 the state, and so that's how. Also, we do a lot of
25 the similar research that was done by Mr. Lemoine and
Tina Fett, CSR
#oof 159
1 Mr. Volney as well.
2 Q. Did you also have a paralegal that was
3 assisting you on this case?
4 A. Yes.
5 Q. And who is that?
6 A. Her name is Elizabeth Rogatski.
7 Q. And is Elizabeth Rogatski reflected on the
8 billing records?
9 A. Yes. Where you see the abbreviation ER,
10 that's Elizabeth. She is our paralegal. She has been
11 a paralegal since 1992, I believe. She has got a
12 bachelor's degree in legal studies and a master's
13 degree in technology, and she's a certified paralegal
14 and a member of the paralegal section of the Texas
15 State Bar.
16 Q. And in connection with your representation
17 of Ms. Marchi in this case and the firm, Johnson &
18 Sparks' representation of Ms. Marchi, did Ms. Rogatski
19 ever perform any substantive legal work?
20 A. Yes.
21 Q. And can you summarize briefly some of the
22 legal work that she did perform?
23 A. Yes. Well, something she does on every
24 single litigation matter that we have is she --
25 whenever anything is filed and served, she reviews it,
Tina Fett, CSR
#oof 160
1 she gives me a very quick summary of what it is, and,
2 perhaps more importantly, she determines whether
3 there's any response deadline that needs to be
4 calendared, and if so, she calculates that.
5 She also, then, makes sure that I know
6 about that, and then we discuss what I want as far as
7 what we call ticklers on my calendar to make sure that
8 I don't procrastinate too much.
9 Q. Sir, are you, in fact, asking the Court to
10 award Ms. Marchi the $48,137.50 in attorney's fees
11 that she has incurred as reflected on these exhibits?
12 A. Yes.
14 this amount was reasonable and necessary in this
15 case?
16 A. Yes, I do.
17 Q. And what are the factors that help you rely
18 on that opinion?
19 A. A lot of the things we already discussed,
20 the time that was required, the novelty of some of the
21 issues in this particular case, especially with the
22 constitutional aspects and the relative newness of the
23 TCPA statute, as well as the fact that it's still
24 being interpreted by Texas courts in a very novel way.
25 And then like I said, having to try and
Tina Fett, CSR
#oof 161
1 sift through the plaintiff's pleadings to figure out
2 what exactly the basis was supposed to be for their
3 claims against Ms. Marchi.
4 And my opinion is that these fees and
5 costs are, in fact, reasonable.
6 Q. Were you here when Mr. Lemoine testified
7 earlier this morning?
8 A. Yes.
9 Q. Okay. And were you here when he testified
10 about the reasonableness factors that go into what
11 makes a fee, in fact, reasonable?
12 A. Yes.
13 Q. And did you agree with what he stated on
14 the record?
15 A. Yes.
16 Q. Are you requesting anything else on behalf
17 of Ms. Marchi?
18 A. We are requesting the conditional appellate
19 fees as well that are stated both in my affidavit and
20 reflected on page 2 of Exhibit 7C.
21 Q. And how did you come up with these
22 conditional fees?
23 A. Both by confirming with co-defense counsel
24 and looking at the initial work that is required to
25 respond to an appeal at the appellate court level, and
Tina Fett, CSR
#oof 162
1 then if we go on to the Supreme Court and likewise to
2 co-defense counsel, I want to also split up the math
3 on some of the appellate fees if we do end up going to
4 the Supreme Court level from what's in my affidavit.
5 Q. And how precise did you want to split that
6 up?
7 A. It's primarily with the -- after the
8 petition for review phase. If there's -- if they ask
9 for briefing on the merits, I think a reasonable fee
10 at our firms rates, which it's in my affidavit, my
11 fees are going up to 375 an hour effective January 1st
12 of 2020, for 12,500 for briefing on the merits and
13 then 10,000 if there is oral argument requested and
14 granted.
15 A. I'm going to step back for a second, if I
16 may. Ms. Rogatski, what is her hourly rate?
17 A. 125 an hour on this case. That was
18 actually also a reduction from her normal rate.
19 Q. And what is her normal rate?
20 A. 150 an hour.
21 Q. And how do you come up with the 125 an hour
22 rate for Ms. Rogatski in this matter?
23 A. That is actually lower than what I have
24 spoken with other attorneys about their paralegals
25 with similar qualifications being charged -- having
Tina Fett, CSR
#oof 163
1 charged for their time. But we are a smaller firm and
2 generally have smaller clients, so we also have
3 smaller bills.
4 Q. Are there any factors in this case that
5 allowed you to help keep the cost and the attorney's
6 fees down as it relates to your representation of
7 Ms. Marchi?
8 A. Yes. And part of that is reflected in the
9 invoices. I did go through each month as we prepared
10 the invoices to take out time that I felt was properly
11 discounted for her, and then also the co-defendants
12 also bore a lot of the heavy lifting on some of the
13 legal research and getting materials prepared for the
14 hearings and drafting some of the objections, I think,
15 in regard to the TCPA motion.
16 So there was a lot of legal research
17 that I didn't have to do for Ms. Marchi because we
18 knew that the other defendants would be doing that.
19 Q. And in addition to the legal fees, there
20 are also costs that you incurred on behalf of
21 Ms. Marchi; is that correct?
22 A. Yes.
23 Q. And do you know what those costs are?
24 A. It was primarily legal research charges on
25 LexisNexis. I think I only turned in one receipt for
Tina Fett, CSR
#oof 164
1 parking at the courthouse, and there was a lot more
2 that's not reflected on here. And then Ms. Marchi
3 also paid $1,500 for mediation in this case.
4 Q. In your opinion, do you think that the fees
5 you charged and your firm charged were fair and
6 reasonable given the nature of your representation on
7 behalf of Ms. Marchi in this case?
8 A. Yes.
9 MR. FRIEDMAN: I pass the witness.
11 BY MR. MARTINEZ:
12 Q. Mr. Johnson, how familiar are you or were
13 you prior to taking on this case with the TCPA?
14 A. I had actually been reading about it, and I
15 have a friend that was working with the state
16 legislators this recent session on the amendments to
17 the TCPA, so I had actually just read through a lot of
18 that in helping her work with those legislators.
19 Q. Had you had any cases regarding or related
20 to TCPA prior to this one?
21 A. Not prior to this one.
22 Q. So would it be a fair statement to say your
23 motion to dismiss under TCPA was the first time you
24 had drafted one?
25 A. Yes.
Tina Fett, CSR
#oof 165
1 Q. And looking at your bills, and I'll
2 summarize it, even with your additional dismissal fee,
3 you drafted your motion, you began it sometime in June
4 and finished it and filed it on July 19th, if I
5 remember correctly, your total amount of the original
6 invoice, including everything else you did that month
7 was 10,800, just shy of $10,900 at your rate of 250 an
8 hour, give or take.
9 Do you feel like you spent a sufficient
10 amount of time, based on your understanding of the
11 TCPA, to properly research and draft that motion in
12 its entirety?
13 A. Based on the claims and record relating to
14 my particular client, yes, I do.
15 Q. Now, you also testified that Ms. Marchi has
16 paid a small portion of her bill so far. Her bill,
17 according to your affidavit or your summary, is
18 $48,137.50.
19 A. That's the total that's been incurred,
20 that's correct.
21 Q. And how much of that has she paid?
22 A. Actually, I would need to look at this. I
23 want to say maybe $2,500 that she paid directly.
24 Q. Now, in looking at your invoices, were you
25 paid the invoice number 03094, for example, it's an
Tina Fett, CSR
#oof 166
1 invoice dated August 1st, 2019. What are the payment
2 terms of that invoice?
3 A. It says due on receipt.
4 Q. So is it your firm's regular practice to
5 wrack up a nearly $50,000 bill and allow individual
6 clients to pay only $2,000 and continue working for
7 them without additional payments?
8 MR. FRIEDMAN: I object to the
9 relevance of the firm's billing practices.
10 MR. MARTINEZ: Your Honor, it goes to
11 the incurred question. Did she actually incur it? If
12 the only reason they kept working was because they
13 expected to win and my client would have to pay it,
14 then she never incurred it. And the statute
15 specifically states that it must be incurred.
16 THE COURT: Sustained. You don't know
17 if she is -- just ask him if she is going to be forced
18 to pay it if I award zero today.
19 Q. (By Mr. Martinez) Will she be forced to
20 pay this?
21 A. Yes.
22 Q. What steps to do you take against clients
23 that don't pay their bills?
24 A. Well, we send the invoices, and then we
25 send -- I'll usually do some emails to try and get a
Tina Fett, CSR
#oof 167
1 payment if there has been no payment at all. Or if
2 they're off the radar completely, I'll start calling.
3 After that I will send a demand letter. And then I,
4 like a lot of attorneys, I sue my clients when they
5 don't pay me.
6 Q. Have you done that?
7 A. Oh, yes.
8 Q. Now, have you done any of those things --
9 in reviewing the bills I believe the last time she
10 made a payment --
11 MR. FRIEDMAN: I'm going to object --
12 Q. (By Mr. Martinez) -- was back in June.
13 Have you done --
14 THE COURT: Hold on.
15 MR. FRIEDMAN: I'm going to object,
16 Your Honor. I don't see how the firm's billing
17 practices have any impact on this.
18 THE COURT: Are you trying to prove
19 something or just waste the Court's time?
20 MR. MARTINEZ: I'm not trying to waste
21 the Court's time at all, Your Honor. I'm simply going
22 to the fact of -- he testified earlier that they're a
23 small firm. They let go of other work, and they can't
24 do different things, but he also, in looking at these
25 invoices, hasn't asked for any payment from her in
Tina Fett, CSR
#oof 168
1 months. Yet he is asking the Court to believe that
2 she is actually expected to pay it.
3 MR. FRIEDMAN: Your Honor, I don't
4 believe that's the testimony. The bills are due on
5 receipt. It's implied that they are due. I don't
6 think it's relevant to get into the firm's billing
7 practices as it relates to --
8 THE COURT: I don't think it's
9 unreasonable for him to wait till this short process
10 if the TCPA is done, and if he wins he gets paid.
11 MR. MARTINEZ: Well, and Your Honor, it
12 goes to the reasonableness of the fees. The Supreme
13 Court has stated on many occasions, most recently the
14 case that we've been citing throughout the day, that
15 when you actually expect your client to pay it, then
16 it gives you more of an incentive to reduce the fees
17 as you go.
18 THE COURT: Overruled. Just keep
19 asking these questions if you want.
20 THE WITNESS: What is the question I'm
21 supposed to answer?
22 Q. (By Mr. Martinez) What steps have you
23 taken thus far to try to collect from Ms. Marchi?
24 MR. FRIEDMAN: And just note the
25 objection for the record, Your Honor.
Tina Fett, CSR
#oof 169
2 THE WITNESS: Right now it's just that
3 phone conversation, and we had it as recently as
4 yesterday.
5 Q. (By Mr. Martinez) In reviewing some of
6 these -- your invoice entries, you testified a moment
7 ago that you agree with both Mr. Lemoine and
8 Mr. Volney that the analysis necessary to determine
9 what is an actual -- or what is a reasonable and
10 necessary fee, their testimony as far as what the
11 rules are for that, correct?
12 A. Correct.
13 Q. So in reviewing this, would you still agree
14 that you have to provide the Court with sufficient
15 information to determine whether each of these billing
16 entries were actually utilized to forward the cause of
17 the TCPA to prosecute?
18 A. Yes.
19 Q. So looking at, again, we'll stay on that
20 same invoice, 03094, July 26th, 2019, there is a .1,
21 it's a small entry, but it says email correspondence
22 with, redacted, regarding, redacted.
23 What information is there, based on
24 what you have provided to the Court to determine that
25 that was actually related to the prosecution of the
Tina Fett, CSR
#oof 170
1 TCPA motion?
2 A. That I emailed with a person about
3 something, and that is actually little. I usually
4 always do a .2 for reading the email that was sent and
5 writing, so .1 for each, usually.
6 Q. So is the Court to -- how is the Court to
7 determine that that email and that person were both
8 related to this case, I guess, is my question?
9 A. Well, I brought, like the other
10 co-defendants, it turns out unredacted bills for the
11 Court to review in camera if the Court desires.
12 Q. Your paralegal, you said, I believe you
13 testified that she has her bachelor's and then her
14 master's degree as well?
15 A. Yes.
16 Q. Do you believe it's reasonable that she
17 bills less than half or right at $100 an hour less
18 than the paralegal for Mr. Lemoine -- I'm sorry, for
19 Mr. Volney?
20 A. Her rates are reasonable for a firm our
21 size with the typical clients that we work for.
22 MR. MARTINEZ: I pass the witness, Your
23 Honor.
24 THE COURT: Anyone else?
25 You know what I'm about to ask you,
Tina Fett, CSR
#oof 171
1 don't you?
2 THE WITNESS: I'll let you say it out
3 loud, Judge.
4 THE COURT: I mean, your client got
5 sued for defamation, tortious interference with an
6 existing contract, tortious interference with
7 respective business relations, civil conspiracy and
8 vicarious liability. And so did Monica Rial and
9 Ronald Toye, exact same causes of action, right?
10 THE WITNESS: Yes, Your Honor.
11 THE COURT: They didn't have more than
12 you did?
13 THE WITNESS: Not in number of causes
14 of action.
15 THE COURT: Correct.
16 THE WITNESS: Correct, Your Honor.
17 THE COURT: And you actually got your
18 case dismissed the first day for $48,000.
19 THE WITNESS: Yes, Judge.
20 THE COURT: And if you look between --
21 you filed your answer, and there may have been a
22 couple of motions to quash here and there. You filed
23 your TCPA motion, as they did. I don't know if the
24 objections were $230,000 that they filed. Do you
25 think they were?
Tina Fett, CSR
#oof 172
1 THE WITNESS: I haven't reviewed their
2 bills, Judge, but --
3 THE COURT: So how is it possible that
4 you could do this case for $48,000, and it takes --
5 and you've never done this before, right?
6 THE WITNESS: Correct.
7 THE COURT: You've read about them?
8 THE WITNESS: Yes.
9 THE COURT: And he's an expert, back
10 there, on these, and it took him $288 -- or $282,000,
11 right?
12 THE WITNESS: Yes.
13 THE COURT: How is that possible?
14 THE WITNESS: Well, I wasn't in their
15 office, but I know he had twice as many clients as I
16 did, and, you know, from Ms. Marchi, if we're going
17 assume for argument's sake that they had any actual
18 claim pleaded against her, it was only maybe as to one
19 tweet, which actually wasn't a part of their
20 pleadings.
21 THE COURT: But your motion to dismiss
22 isn't any different. I mean, you still filed under
23 TCPA, and it's kind of a boiler plate pleading,
24 really.
25 THE WITNESS: Respectfully, I didn't
Tina Fett, CSR
#oof 173
1 feel that way drafting it, but it was my first time,
2 but --
3 THE COURT: No, I understand, but
4 you're not an expert like he is.
5 THE WITNESS: I had a lot fewer -- a
6 lot less record to deal with. Whether that makes up
7 that difference, it's not my place to determine.
8 THE COURT: $234,000 difference.
9 Either you're not billing enough or he's billing too
10 much.
11 THE WITNESS: A lot of people do tell
12 me I'm not billing enough or high enough, for what
13 it's worth.
14 THE COURT: What I'm having trouble
15 comprehending is how you, someone who has never done
16 this before, can do this for $48,000.
17 THE WITNESS: We're a small firm.
18 That's all I can really say about it.
19 THE COURT: Okay. You can step down.
20 THE WITNESS: Thank you, sir.
21 THE COURT: What else?
22 MR. HELLBERG: Your Honor, before we
23 rest, we would like to tender to the Court the
24 unredacted copies of our fee statements solely for in
25 camera inspection.
Tina Fett, CSR
#oof 174
1 THE COURT: Okay.
2 MR. HELLBERG: If the Court will
3 accept those, then --
4 THE COURT: When I'm done with those, I
5 will send you a letter that I shredded them. Is that
6 okay?
7 MR. HELLBERG: That's perfect.
8 THE COURT: That way I won't have any
9 of those. I will write you a letter saying that I did
10 shred them. We have a shredder back here that does
11 that.
12 So y'all are done?
13 MR. HELLBERG: Your Honor, we rest.
14 THE COURT: Okay.
15 MR. HELLBERG: And I'm only speaking
16 for my -- I'm assuming they are as well.
17 THE COURT: Okay. Y'all can speak up.
18 Are y'all done?
19 MR. VOLNEY: We have the same request.
20 THE COURT: I will take all of those,
21 yes.
22 MR. JOHNSON: Other than that,
23 Ms. Marchi rests as well.
24 THE COURT: Okay. Are y'all going to
25 call Ms. Rial or Mr. Toye?
Tina Fett, CSR
#oof 175
1 MR. MARTINEZ: No, Your Honor, just
2 subject to some closing remarks.
3 THE COURT: You don't want to get her
4 feelings about her bill being $282,000 and see how
5 reasonable that is to her?
6 Okay. What have you got?
7 MR. HELLBERG: I would like to do some
8 closing remarks, if I may.
9 THE COURT: Okay.
10 MR. HELLBERG: Your Honor, I've got a
11 proposed order.
12 THE COURT: Did I not get that already?
13 MR. HELLBERG: Well, it's one that I
14 tweaked during the course of the day.
15 THE COURT: Okay.
16 MR. HELLBERG: I have it on a flash
17 drive as well, if the Court would like it on a flash
18 drive.
19 THE COURT: I don't need it on a flash
20 drive.
21 MR. HELLBERG: Your Honor, it's a blank
22 order in a form that addresses all three defendants,
23 and Exhibit 7A addresses the fees that we are seeking,
24 7B, 7C, and the Court can evaluate that.
25 It doesn't seem like there's any issue
Tina Fett, CSR
#oof 176
1 on the appellate fees. And I know the Court didn't
2 raise an issue. I have received the message in the
3 sense that the Court has with respect to our fees,
4 with respect to the Rial and Toye.
5 I just want to point out a couple of
6 things. One is you heard testimony that the Wicks
7 Phillips firm took point, took lead, and was handling
8 most of the activity. And the Court can -- you don't
9 have to take my word for it, the Court will have the
10 records and has the records, that the Court can see to
11 deal with the fees that are being sought.
12 With respect to the 009 under the TCPA,
13 the statute says shall, but clearly the Court has, a
14 fact-finder reasonableness and necessary. I have
15 always viewed that as -- it's like 38.001, the Court
16 doesn't have discretion to award zero, but the Court
17 does have the discretion to set the amount.
18 THE COURT: Here's the thing. I mean,
19 if you brought me a repair bill on a car or something,
20 and one is 48,000 and one is 282,000, you can't say
21 those are both reasonable, or that the 282,000 was
22 reasonable. It's the same causes of action.
23 MR. HELLBERG: But it's not a
24 one-size -- it's all. And you've got to --
25 THE COURT: But you've got an expert
Tina Fett, CSR
#oof 177
1 back there on this, and he has never done one before.
2 MR. HELLBERG: With respect to dealing
3 with the hours, my rate is $650 an hour, I'm double
4 board certified. That also means my rate at $300
5 would also be reasonable, or any rate below my 650
6 rate.
7 The point is when you're looking at the
8 expertise and the experience that various lawyers
9 have, you have Mr. Lemoine back there who has done a
10 bunch of these. You have me, I have done a bunch of
11 these. I've got five or six reported cases.
12 But the point is, you have to look at
13 the rate and consider the rate that the testimony
14 supports dealing with the expertise and experience.
15 Just because Mr. Johnson bills out at
16 his rate doesn't mean that someone else with a
17 different level of experience has a higher rate, makes
18 that unreasonable. So I would hope the Court doesn't
19 look at it from that perspective. Although I know
20 that that is certainly a perspective that one could
21 take, I think Mr. Johnson's firm only spent $50,000,
22 how could Wick Phillips run up a $280,000 bill.
23 THE COURT: Well, I mean, I can tell
24 you that. You've got three attorneys on one
25 deposition.
Tina Fett, CSR
#oof 178
1 MR. HELLBERG: We have more
2 timekeepers. We have higher rates, and we spent more
3 time on the file. That's the simple answer.
4 THE COURT: And you got the same
5 result.
6 MR. HELLBERG: We got the same result,
7 but we did get a good result.
8 THE COURT: Okay.
9 MR. HELLBERG: And the fact of the
10 matter -- well, the Court has heard me on that.
11 We would ask that the Court -- the
12 point is shall, ask the Court to just fill in the
13 blank on what the Court finds as a reasonable fee. I
14 haven't heard any complaints about the appellate fees.
15 I think $500 on a blended rate is certainly reasonable
16 as testified with respect to the appellate fees.
17 And every indication we have received
18 so far is that they are going to appeal. They've
19 already filed their notice of appeal, subject to the
20 dismissal, but we'll deal with that in the appellate
21 court.
22 The second component that we are asking
23 the Court to consider is the sanctions component.
24 And, again, what the statute says is shall --
25 THE COURT: I can read it.
Tina Fett, CSR
#oof 179
1 MR. HELLBERG: And we're asking the
2 Court to evaluate that, and what -- you know, consider
3 what you heard. This is a lawsuit that was filed
4 with -- and it was, my characterization, whether I'm
5 charitable or not, was filed to shut up the
6 defendants. Again, my characterization. The Court
7 has the evidence. The Court heard. The Court can
8 make its own evaluation.
9 But I think it is also telling that
10 when asked, he couldn't tell you what his net worth
11 was, he doesn't want you to know his net worth. Flat
12 out. What is your net worth. I have no idea.
13 Really? It's incredulous to believe that someone
14 can't give you a good idea of what your net worth is.
15 Think about it. I'm sure you could do it. I could do
16 it, in a ballpark fashion.
17 And then combine that with the fact
18 that after this Court issued its ruling, what did he
19 do? He transferred the deed to his house to a trust
20 and received zero consideration.
21 So I think those are all things that
22 the Court can and should consider, and we would simply
23 ask the Court to award a reasonable fee for all three
24 defendants and award a sanction that the Court deems
25 appropriate.
Tina Fett, CSR
#oof 180
1 THE COURT: Do you think the fact that
2 you're alleging that there was a fraudulent transfer
3 of some sort should come into -- that I should
4 consider that for my sanctions?
5 MR. HELLBERG: It goes to the issue --
6 THE COURT: TCPA doesn't try to prevent
7 fraudulent transfer.
8 MR. HELLBERG: Correct.
9 THE COURT: And you want me to consider
10 that, though, is what you're saying?
11 MR. HELLBERG: I want you to -- not to
12 consider it except to the extent that here is a man
13 who couldn't tell you what his net worth is, and
14 because the whole design is to prevent him from doing
15 this again. And you heard testimony that he is
16 talking about -- or at least the supposition is that
17 he is going to be filing more of these. He said he's
18 still considering it, if I believe his testimony.
19 THE COURT: I mean, I don't think I'm
20 going to make him a vexatious litigant and ban him
21 from the courthouse.
22 MR. HELLBERG: Not asking for a -- what
23 is it -- Chapter 11.
24 The point is on these types of cases to
25 deter from future bad behavior.
Tina Fett, CSR
#oof 181
1 THE COURT: Okay. Is there anybody
2 else that would like to say something?
3 MR. VOLNEY: Just to say that for
4 Funimation, the form of the order is appropriate in
5 the case, Your Honor.
6 THE COURT: As far as Funimation was
7 concerned, it was really just this one tweet, right?
8 MR. VOLNEY: Well, it was two -- the
9 one on --
10 THE COURT: And that is really your
11 whole case, against you, was about the two tweets?
12 MR. VOLNEY: That's what it boiled down
13 to at the end.
14 THE COURT: And a hundred -- what was
15 your number?
16 MR. VOLNEY: It was 169,000. There was
17 lots of steps to get to that result.
18 THE COURT: He did them, too.
19 Okay. Anything else?
20 MR. MARTINEZ: And I'll be brief, Your
21 Honor.
22 THE COURT: Okay.
23 MR. MARTINEZ: As an initial matter,
24 Your Honor, we do object to the form of the proposed
25 order.
Tina Fett, CSR
#oof 182
1 THE COURT: Okay.
2 MR. MARTINEZ: For starters, on page
3 four it states at the top, mandatory sanctions.
4 That's actually a mischaracterization of the law
5 itself. If you read Section 27.009 of the statute, A
6 says except as provided in subsection C. If the Court
7 orders dismissal of a legal action in this chapter,
8 the Court, 1, shall award moving party its attorney's
9 fees incurred defending against legal actions; and,
10 two, permissibly, may award to the moving party
11 sanctions against the party who brought the legal
12 action.
13 Sanctions are not mandatory under the
14 TCPA. Case law will also back that up as well, Your
15 Honor. So the plain reading of the statute states
16 that these cases are not mandatory.
17 In addition to that, Your Honor, the
18 Court is to consider multiple factors when looking at
19 what in this case I would argue, Your Honor, what, if
20 any, amount of sanctions would be appropriate in this
21 case as were specifically in this case laid out by
22 Landrie, which --
23 THE COURT: Am I reading this wrong,
24 the Court shall award the moving party court cost,
25 attorney's fees, and sanctions.
Tina Fett, CSR
#oof 183
1 MR. HELLBERG: Your Honor, I believe he
2 was reading from the revised statute effective
3 September 1, not --
4 THE COURT: Are you looking at the new
5 one or the old one? I'll look it up. I think I have
6 to give sanctions based on the old statute.
7 MR. MARTINEZ: Should the Court
8 determine to give sanctions, Your Honor, the proper
9 award of sanctions is whatever is sufficient to deter
10 this type of behavior.
11 THE COURT: How much is sufficient to
12 deter this type of behavior?
13 MR. MARTINEZ: Your instance, in this
14 instance, we would argue that that would be a nominal
15 amount. Mr. Mignogna testified that this is the first
16 case he has ever brought forward. He says he's
17 looking at and considering other things, but he did
18 not state -- he unequivocally stated that he had not
19 made any decisions related to bringing additional
20 lawsuits forward.
21 The factors that the Court is supposed
22 to consider, the nonexclusive list, Your Honor, but
23 the good faith or the bad faith of the offender
24 himself, and Mr. Mignogna testified that he did have a
25 good faith belief at the time of the filing based on
Tina Fett, CSR
#oof 184
1 things that he had been told by others, that he
2 expected would be brought forward as part of the
3 lawsuit itself for evidence related to the different
4 causes of action against each of the defendants, the
5 degree of willfulness, vindictiveness, negligence, or
6 frivolousness involved in the offense.
7 Merely granting a TCPA motion, Your
8 Honor, the case law says that that does not mean that
9 the lawsuit was frivolous. It simply means that he
10 did not bring clear and specific evidence forward to
11 do so.
12 Additionally, Your Honor, and there is
13 no testimony whatsoever, no evidence before the Court
14 from this hearing that he was vindictive or negligent
15 for bringing it forward. Your Honor, additionally,
16 the knowledge, experience, and expertise of the
17 offender, he said he has never done anything like this
18 before. He had no idea what was going on. He didn't
19 understand, and he had never had any other lawsuits,
20 Your Honor. There was nothing there for him in
21 that -- from that respect, and no prior history.
22 There was no prior history.
23 The reasonableness and necessity of
24 the out-of-pocket expenses incurred by the defendant
25 personally as a result of the misconduct, Your Honor,
Tina Fett, CSR
#oof 185
1 as the Court has pointed out ad nauseam today, the
2 range of attorney's fees here is massive. So that is
3 obviously a factor for the Court to consider, but the
4 next part to that, Your Honor, is also the risk of
5 chilling this specific type of litigation involved.
6 If the Court issued a six or seven
7 figure -- a six-figure sanction or even a five-figure
8 sanction in this case, Your Honor, does have a
9 chilling effect, especially when someone does bring
10 forward and testify there is no evidence to rebut his
11 testimony that he did believe he had a good faith
12 effort to bring this lawsuit forward.
13 Additionally, Your Honor, the impact of
14 the sanctions on the offender, the impact of the
15 sanctions on the offended party including their need
16 for compensation, the magnitude of the sanction
17 necessary to achieve the goals of the sanctions.
18 Your Court has stated the goal of the
19 sanction is to deter this type of behavior. They
20 stated that throughout the day. There is no evidence
21 whatsoever that he is going to come forward again. He
22 has simply stated he hasn't made any decisions on
23 anything, Your Honor.
24 THE COURT: But I'm not sitting here
25 thinking about suing somebody today.
Tina Fett, CSR
#oof 186
1 MR. MARTINEZ: No, Your Honor.
2 THE COURT: So he kind of is.
3 MR. MARTINEZ: Well, Your Honor, he is
4 simply considering --
5 THE COURT: He is considering suing
6 people, so you sitting here saying that he's not is
7 not necessarily true. I'm not thinking about suing
8 somebody today.
9 MR. MARTINEZ: Yes, and I apologize for
10 the mischaracterization. He expressly stated that he
11 has not made any decisions yet, and he also stated
12 that he is considering it at this point.
13 THE COURT: Well, I'm not even
14 contemplating it right now.
15 MR. MARTINEZ: But he also has reason
16 for doing so based on things that have occurred.
17 Additionally, Your Honor, in looking
18 through -- and we went through the different reasons
19 why we object to the order of -- I'm sorry -- to the
20 block billing and things in that regard, to segregate
21 within the bills. I'm not going to belabor that
22 matter too much.
23 However, Your Honor, I will say that as
24 it relates to the bills from specifically in this
25 instance from -- I can't think of the name of the firm
Tina Fett, CSR
#oof 187
1 all of a sudden -- Kessler & Collins, they're replete
2 with these same types of redactions, the same types of
3 block billing and issues, and they're not offering and
4 they did not offer prior to this, to closing or
5 anything, unredacted versions of the bill.
6 There is insufficient information there
7 for the Court to determine which, if any of these
8 entries, can be applied and which are specifically
9 applicable to the prosecution of the TCPA motion.
10 In fact, in looking at these invoices,
11 Your Honor, one of the exhibits that the Court did
12 enter was Exhibit 4, subsection D, the very first page
13 of the bill from Erick Casey, who apparently, at least
14 according to Kessler & Collins and Mr. Casey, they
15 represented Monica Rial. However, it says that the
16 client was Funimation.
17 There is no one here to testify as to
18 that, Your Honor. How can they be asking the Court to
19 provide attorney's fees for bills to a client that
20 they didn't ever even present themselves as
21 representing to the Court?
22 THE COURT: They didn't file a pleading
23 that they --
24 MR. MARTINEZ: Not on behalf of
25 Funimation. I believe Mr. Volney stated that he was
Tina Fett, CSR
#oof 188
1 the attorney for Funimation.
2 THE COURT: Yes, he did.
3 MR. MARTINEZ: This is Mr. Casey. They
4 filed pleadings on behalf of Ms. Rial, but they are
5 separate bills for Ms. Rial, but they're under Tab C.
6 And Tab D has another bill, and all of the client here
7 is Funimation, and they're asking the Court to grant
8 attorney's fees related to that bill as well.
9 How can it be necessary to award
10 attorney's fees -- how can they be necessary fees when
11 they didn't even, at least as it relates to the Court,
12 submit a notice on behalf of that client.
13 So, additionally, Your Honor, if that
14 does call into question who exactly was paying the
15 bill, which is why I was trying to lay the predicate
16 earlier for the incurred portion.
17 Each of these clients, Your Honor,
18 whether we're looking at Mr. Lemoine's firm,
19 approximately $260,000, but over $160,000 is still
20 owed to that firm.
21 Mr. Johnson, they have paid less than
22 five percent total of that bill, yet they're asking
23 the Court to believe that they honestly intended their
24 client to pay this, despite not collecting the fees
25 from the clients.
Tina Fett, CSR
#oof 189
1 Your Honor, all of these reasons, when
2 you add them up, do call for a significant reduction
3 in the attorney's fees.
4 THE COURT: Do you think Ms. Marchi's
5 attorney's fees are reasonable?
6 MR. MARTINEZ: Ms. Marchi's attorney's
7 fees in general, yes, they're fairly reasonable.
8 THE COURT: And if I'm going to
9 determine what is reasonable, as far as an attorney's
10 fee is concerned, it seems like if I was comparing
11 apples and apples, meaning the exact same cases, it
12 would probably be fair to you to go with the lower
13 amount.
14 MR. MARTINEZ: Should the Court
15 determine that every one of their entries is
16 reasonable, yes, Your Honor, it would be fair to us to
17 go with the lowest amount.
18 THE COURT: Because he was able to
19 prosecute the exact same case and get the same result
20 for $48,000.
21 MR. MARTINEZ: Including the bonus,
22 yes, Your Honor.
23 THE COURT: $100 extra an hour, right?
24 MR. MARTINEZ: Yes.
25 THE COURT: Okay. Anything else?
Tina Fett, CSR
#oof 190
1 MR. MARTINEZ: Nothing else, Your
2 Honor.
3 THE COURT: Okay. Do y'all want to
4 give me those documents?
5 MR. HELLBERG: Yes, we just handed them
6 to you.
7 MR. MARTINEZ: Your Honor, as it
8 relates to the unredacted invoices, we would object
9 because we were not given an opportunity to review
10 them and cross-examine them on the unredacted
11 invoices.
12 THE COURT: Okay. Overruled.
13 Okay. I don't know when I'll do this.
14 When do you need me to do this? Does it matter?
15 MR. MARTINEZ: To my knowledge, Your
16 Honor. I know we've got the appeal moving forward to
17 determine whether the Court's original order was final
18 and appealable, but assuming it wasn't, to my
19 knowledge, at least, I don't believe there is a
20 deadline.
21 THE COURT: I don't want to sit on
22 this. Next week is Thanksgiving. I'll try to do this
23 by tomorrow. We'll see if I can get it done.
24 MR. HELLBERG: Your Honor, I don't
25 believe there is a hard deadline because the Court
Tina Fett, CSR
#oof 191
1 granted, we're kind of in this limbo stage of --
2 THE COURT: But nobody wants it sitting
3 out there. You'd rather it get done and move on, I'm
4 sure. So I'll try to get it done by tomorrow.
5 MR. HELLBERG: Okay.
7 (End of hearing)
8 *-*-*-*-*-*-*-*-*
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Tina Fett, CSR
#oof 192
1 C E R T I F I C A T E
2 THE STATE OF TEXAS X
3 COUNTY OF TARRANT X
4 I, Christina Fett, Official Court Reporter in

and for the 141st District Court, State of Texas,
5 County of Tarrant, do hereby certify that the above
and foregoing contains a true and correct
6 transcription of all portions of evidence and other
proceedings requested in writing by counsel for the
7 parties to be included in this volume of the
reporter's record in the aforementioned cause, all of
8 which occurred in open court or in chambers and were
reported by me.
9
I FURTHER CERTIFY that this reporter's record
10 of the proceedings truly and correctly reflects the
exhibits, if any, admitted by the respective parties.
11
I FURTHER CERTIFY that I have no financial
12 interest in the matters shown herein, and that I am
not related to any of the parties or their counsel.
13
I FURTHER CERTIFY that the total cost for the
14 preparation of this reporter's record of the
proceedings is $1,400.00 and was paid by T. Greg
15 Doucette.
16 WITNESS MY OFFICIAL HAND this the 2nd day of

January, 2020.
17
18
/s/Christina Fett
19 Christina Fett, Texas CSR 4590
CSR Expires 7-31-22
20 Official Court Reporter, 141st District Court
Tom Vandergriff Civil Courts Building
21 100 N. Calhoun, 3rd Floor
Fort Worth, Texas 76196-0402
22 Telephone 817-884-1423
Facsimile 817-850-2944
23
24
25
Tina Fett, CSR

2019-11-21 Sanctions Hearing - Marked PDF

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

2019-11-21 Sanctions Hearing - Marked PDF

Hochgeladen von

Copyright:

Verfügbare Formate

#oof 1

3 CAUSE NO. 141-307474-19

4 VICTOR MIGNOGNA, X IN THE DISTRICT COURT

19 BE IT REMEMBERED that on the 21st day of

20 November, 2019, the following proceedings came on to

21 be heard in the above-entitled and -numbered cause

22 before the Honorable John P. Chupp, judge presiding,

23 held in Fort Worth, Tarrant County, Texas.

24 The proceedings were reported by machine

2 APPEARING FOR PLAINTIFFS:

3 Mr. An Lee Hsu

16 APPEARING FOR DEFENDANT,

2 APPEARING FOR DEFENDANTS,

12 APPEARING FOR DEFENDANT, JAMIE MARCHI:

13 Mr. Samuel Harris "Sam" Johnson

3 THURSDAY, NOVEMBER 21, 2019 PAGE VOL.

5 Appearances ............................... 2-3 1

8 DIRECT CROSS VOIR DIRE VOL.

9 Sean Lemoine 10,62 38 1

10 Victor Mignogna 66 103 1

11 John Volney 111 134,139 1

12 Samuel H. Johnson 150 164 1

17 G-2 Services May 1, 2019 to 153 1

23 3 Affidavit of Sean Lemoine 9 1

24 4 Affidavit of Casey Erick 9 1

25 5 Affidavit of Andrea Perez 9 1

1 CHRONOLOGICAL INDEX (Continued)

6 7B Funimation Fee Summary Chart 117 1

7 7C Jamie Marchi Attorney's Fees 156 1

8 8 Plaintiff's Original Petition 67 1

11 Adjournment ............................... 191 1

12 Reporter's Certificate .................... 192 1

2 (Thursday, November 21, 2019, 1l:00 a.m)

4 THE COURT: All right. What do we need

6 MR. LEMOINE: Judge, we are ready to

7 call our first witness.

8 THE COURT: Okay.

9 MR. MARTINEZ: Your Honor, we have

10 filed a motion for a continuance to have some

11 additional time. I don't know if the Court has had an

12 opportunity to review that.

13 THE COURT: I had an opportunity to

14 read it, but you didn't set it.

15 MR. MARTINEZ: Yes, Your Honor. The --

16 additionally, Your Honor, we did file this morning a

17 motion to strike their exhibits for various reasons.

18 THE COURT: I saw that.

19 MR. MARTINEZ: Okay.

20 THE COURT: Let's have the hearing, and

21 if for some reason we feel like we need more time,

22 we'll get more time.

23 MR. MARTINEZ: Okay.

24 THE COURT: You can call a witness.

25 MR. HELLBERG: Your Honor, Jeff

1 Hellberg here on behalf of -- I'm partners with

2 Mr. Lemoine, here on behalf of Defendants Rial and

4 At this point, we would offer into

5 evidence three exhibits, if I may approach, I have

7 THE COURT: Okay.

8 MR. HELLBERG: Your Honor, I'm

9 referring specifically to Exhibits 3, 4, and 5 in that

11 THE COURT: The ones you are handing

12 me, are these going to be the ones that the court