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

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
Michael Thomas Paul,

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

CIVIL ACTION NO.

5:15-CV-00173-DAE
HEARING REQUESTED

DEFENDANT CPS ENERGYS OPPOSED FIRST AMENDED MOTION TO QUASH

PLAINTIFFS SUBPOENA AND MOTION FOR PROTECTIVE ORDER
Defendant City of San Antonio, acting by and through City Public Service Board (CPS
Energy) files this its First Amended Motion to Quash Plaintiffs Subpoena and Motion for
Protective Order. This Motion is substantially identical to a motion previously filed by CPS
Energy, ECF No. 17, modified only to address additional discovery requests sent by Plaintiff
since the filing of that the earlier motion.
Factual Background
The present suit brought by Mr. Paul against CPS Energy is his third within the past nine
months related to alleged injuries suffered as a result of the installation of a metering device at
his home in conjunction with his receipt of a $15,000 solar energy subsidy from CPS Energy.
The first two suits, filed in Texas courts in Comal County and Bexar County, were voluntarily
dismissed by Mr. Paul without prejudice.
Notwithstanding the fact that CPS Energy had not yet been served with a copy of the
Complaint, on June 15, 2015 a subpoena directed at CPS Energy was delivered to the Clerk of
the City of San Antonio. This subpoena, though defective in ways shown herein, purports to
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command production of certain documents by CPS Energy four days later on June 19, 2015.
Despite the subpoenas deficiencies that nullify it automatically, CPS Energy, in an abundance of
caution, now seeks to quash the subpoena and for protection from the issuance of other discovery
tools outside of the timetables established under the Federal Rules of Civil Procedure.
Further, on July 8, 2015, Plaintiff served a Request for Production upon CPS Energy.
Counsel for CPS Energy conferred with Plaintiff, requesting that discovery be postponed until
the appropriate time following a Rule 26(f) conference and a ruling from the Court on CPS
Energys motions to dismiss. Mr. Paul, however, was unwilling to withdraw his discovery
requests and CPS Energy now seeks protection from those requests and any others that he may
serve outside the timetable prescribed by the Federal Rules of Civil Procedure.
Motion to Quash
The subpoena issued by Mr. Paul commands CPS Energy to produce within five days of
receipt any and all documentation regarding installation, programming, operation of any and all
devices used for SCADA and ancillary operation of DER/DG utilizing AMI and wifi. See
Plaintiffs Subpoena attached as Exhibit A. CPS Energy asks the Court to quash this subpoena
because it was not properly issued, is vague and confusing, would place a substantial and undue
burden upon CPS Energy, and does not provide adequate time for compliance.
1.

The subpoena is vague and confusing

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

purported documents that are the subject of the subpoena. Without further explanation, however,
CPS Energy is unable to determine what is sought by the subpoena to even identify additional
objections that it might have to the request or to assert any applicable privileges. Despite being a
short description, there are multiple abbreviations (SCADA, DER/DG, and AMI) that
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while not wholly unfamiliar to CPS Energy, do not make sense in the context that they were used
by Mr. Paul. Further, other words such as ancillary operation, devices, are not defined and
lend themselves to multiple differing interpretations. Consequently, even if CPS Energy had
been properly served with Plaintiffs subpoena, it is simply unable to respond given the vague
and ambiguous language used within the subpoena.
2.

The subpoena subjects CPS Energy to an undue burden

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

injuries that he allegedly suffered because of the installation of a metering device at his
residence. Though the suit appears to be limited in nature to Mr. Pauls alleged injuries and
actions taken by CPS Energy with regard to Mr. Paul, the subpoena commands production of
any and all documentation relating to various areas of CPS Energys operations with many
moreor perhaps allof its residential and commercial customers. 1
Further, pursuant to Rule 12 of the Federal Rules of Civil Procedure, CPS Energy intends
to file a motion to dismiss Mr. Pauls Complaint. Therefore, it is also unduly burdensome for
CPS Energy to have to respond to any subpoena or discovery request before the Court has
considered and ruled upon CPS Energys Motion to Dismiss, particularly in light of the other two
suits already brought by Mr. Paul. Because the subpoena would place an undue burden upon
CPS Energy, it should be quashed. See Fed. R. Civ. P. 45(d)(3)(A)(iv).
3.

The subpoena imposes an unreasonable time for compliance

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

able to decipher the subpoena and sought to produce relevant documents, it would
unquestionably need more than five days to adequately respond.
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Due to the subpoenas vague

Given the ambiguous and confusing terms used in the subpoena, CPS Energy is unable to determine exactly what
is sought. However, it is clear that the request is not limited in time or scope and seeks production of documents
unrelated to Mr. Paul or his alleged injuries.

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and confusing language, CPS Energy is unable to provide a timetable when it might be able to
comply with the subpoenas commands, however under any circumstances, five days is
inadequate and the subpoena should be quashed. See Fed. R. Civ. P. 45(d)(3)(A)(i).
4.

The subpoena was not properly issued or properly served.

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

the Western District of Texas or by the clerk as required by Federal Rule of Civil Procedure
45(a)(3). Further, Mr. Paul did not include with the subpoena a copy of the text of Federal Rules
of Civil Procedure 45(d) and 45(e) as required by Rule 45(a)(1)(A)(iv). For either of these
reasons, the subpoena is invalid and should be quashed.
Motion for Protective Order
1.

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

CPS Energy moves the Court to enter an order prohibiting Mr. Paul from pursuing discovery
from CPS Energy, whether through a discovery request or subpoena, until after the Court has
ruled upon CPS Energys Rule 12 Motion to Dismiss. In the alternative, and at a minimum, CPS
Energy asks that the Court enter an order prohibiting Mr. Paul, in accordance with Federal Rule
of Civil Procedure 26(d)(1), from pursuing discovery from CPS Energy by any means until such
time that the parties have held their Rule 26(f) conference. CPS Energy further requests that for
the sake of clarity as to governing rules, that Mr. Paul be instructed not to seek further discovery
from CPS Energy by means of a subpoena, but rather seek discovery through means of a
standard discovery tool or a notice of deposition.
Finally, to avoid confusion that has arisen in the prior cases brought by Mr. Paul
regarding what constitutes service of documents, including discovery requests, CPS Energy
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requests that the Court order that all parties be required to file discovery requests through the
Courts ECF system.
2.

Plaintiffs Request for Production

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

Plaintiff served a Request for Production seeking production of wide array of documents by
means of requests that will all certainly be subject to objections regarding the undue burden that
they will impose. See, Pl.s Req. for Produc. attached as Exhibit B. However, the parties have
not yet participated in their Rule 26(f) conference. Consequently, the discovery request is barred
completely at this time by the Federal Rules of Civil Procedure and CPS Energy seeks protection
from the requests. Fed. R. Civ. P. 26(d)(1).
Request for Hearing
To assist the Court in understanding the nature of its request for relief and also for the
benefit of ensuring that Mr. Paul has an opportunity to be heard and that he understands and will
comply with any order that issues from the Court, CPS Energy requests an oral hearing on its
motions.
Conclusion and Prayer
In light of the foregoing, CPS Energy respectfully requests that the Court quash
Plaintiffs subpoena and requests for production and enter a protective order enjoining Plaintiff
from pursuing discovery until after the Court has ruled on motions brought in response to
Plaintiffs Complaint pursuant to Federal Rule of Civil Procedure 12, and requiring Plaintiff not
to seek discovery from CPS Energy by means of subpoena, as well as for such other and further
relief to which it is rightfully entitled.

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Respectfully submitted,

/s/ Matthew E. Vandenberg

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

ATTORNEYS FOR DEFENDANT

CPS ENERGY

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CERTIFICATE OF CONFERENCE
I certify that on June 16, 2015, I spoke with pro se Plaintiff Michael Thomas Paul and we
discussed whether he would withdraw his subpoena and delay discovery in this matter until after
our required Rule 26(f) conference or a ruling of the Court in response to CPS Energys Rule 12
Motion in response to Mr. Pauls Complaint. Though Mr. Paul did offer a short extension to the
deadline to respond to the subpoena, we were unable to reach any agreement.
On July 8, 2015, the date that Plaintiff sent his Request for Production, I spoke further
with pro se Plaintiff Michael Thomas Paul and we discussed whether he would withdraw the
request for production and delay discovery in this matter until after our required Rule 26(f)
conference or a ruling of the Court in response to CPS Energys Rule 12 Motion in response to
Mr. Pauls Complaint. Mr. Paul was not willing to delay the response deadline or to postpone
discovery until after the Rule 26(f) conference.

/s/ Matthew E. Vandenberg

Matthew E. Vandenberg
CERTIFICATE OF SERVICE
I hereby certify that on the 13th day of July 2015, I electronically filed the foregoing with
the Clerk of the Court using the CM/ECF system through which a copy was served upon:
Michael Thomas Paul, pro se
9123 Easy Street
San Antonio, Texas 78266
(210) 294-4533
mtp8389@gmail.com
/s/ Matthew E. Vandenberg
Matthew E. Vandenberg

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