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Texas Western District Court
Case No. 1:14-cv-00034-SS
WickFire, LLC v. TriMax Media, LLC, et al

Document 434

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 Case 1:14-cv-00034-RP Document 434 Filed 07/26/21 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

Wickfire, LLC,
Plaintiff,
v.

TriMax Media, Inc., Laura Woodruff,

WREI, Inc., and Josh West,
Defendants.

CIVIL ACTION NO. 14-CV-34

TriMax Media, LLC, Laura Woodruff,

WREI, Inc., and Josh West,
Counter-Plaintiffs,
v.

Wickfire, LLC, Jonathan Brown,

and Chet Hall,

Counter-Defendants.

TRIMAX’S REPLY IN SUPPORT OF ITS

OBJECTIONS TO DECLARATION OF
KATHARINE HALL, F/K/A KATHARINE ATLAS
 Case 1:14-cv-00034-RP Document 434 Filed 07/26/21 Page 2 of 13

Respectfully submitted:

Barry M. Golden
State Bar No. 24002149
Egan Nelson LLP
2911 Turtle Creek Blvd., Suite 1100
Dallas, Texas 75219
Office Phone: (214) 628-9514
Mobile Phone: (214) 893-9034
Fax: (214) 628-9505
barry.golden@EganNelson.com

Attorney for Defendants, Counter-Plaintiffs, and

Third-Party Plaintiffs TriMax Media, LLC, Laura
Woodruff, Josh West, and WREI, Inc.

CERTIFICATE OF SERVICE

I hereby certify the foregoing document was electronically filed on the CM/ECF system,
which will automatically serve a Notice of Electronic Filing on all parties registered for such
service on July 26, 2021.

Barry M. Golden

TRIMAX’S COMBINED REPLY PAGE iii

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TABLE OF CONTENTS

PAGE

A. Since Wickfire failed to respond to the

Objections, the Court should sustain them…....………………………………………..….1

B. Ms. Hall’s declaration does not provide

sufficient testimony to resolve the disqualification issues……………………………...…1

C. Ms. Hall’s romantic relationship with her client is highly relevant……………………….3

1. Ms. Hall’s romantic relationship with her client violates various

Ethics Rules and therefore supports the Motion to Disqualify…………………..…3

2. Ms. Hall’s likelihood of leaking AEO Information due

to the romantic relationship supports the Motion to Disqualify.………….……….5

3. Ms. Hall’s concealment of evidence regarding

her romantic relationship supports the Motion to
Disqualify and Motion for Limited Discovery…………………………………….6

4. An outside ethics expert advised Ms. Hall to withdraw……………………………6

D. Ms. Hall’s in-house employee relationship with her client is highly relevant…………….6

1. Ms. Hall’s in-house employee relationship with her client violates

the Protective Order and therefore supports the Motion to Disqualify……………7

2. Ms. Hall’s in-house employee relationship with her client violates

Ethics Rules and therefore supports the Motion to Disqualify……………….……8

3. Ms. Hall’s likelihood of leaking AEO Information due to the

in-house employee relationship supports the Motion to Disqualify.……………....8

4. Ms. Hall’s concealment of evidence regarding her

in-house employee relationship supports the Motion
to Disqualify and Motion for Limited Discovery…………………………………..9

E. Wickfire’s claim that TriMax is not interested in Ms. Hall’s testimony is ludicrous …...….9

TRIMAX’S COMBINED REPLY PAGE iii

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TriMax filed “TriMax’s Opposed Motion to Disqualify Katharine Hall” (“Motion to

Disqualify”) (Dkt 422) and “TriMax’s Opposed Motion to Conduct Limited Discovery Regarding

Protective Order Violations” (“Motion for Limited Discovery”) (Dkt 423). In opposition to these

motions, Wickfire offered Ms. Hall’s declaration (Dkt 427-2). TriMax filed objections to

statements in the declaration, including those containing lay opinions, hearsay, relevancy and other

improper testimony. (Dkt 431) (“Objections”). Wickfire then filed a response to the Objections

(“Response” or “Resp.”) (Dkt 433). TriMax now files its reply in support of the Objections. 1

A. Since Wickfire failed to respond to the Objections, the Court should sustain them.

Wickfire’s Response fails to challenge a single objection. Instead, the Response states in

conclusory fashion: “Defendants’ objections are uniformly baseless”; Ms. Hall’s testimony is

within her “personal knowledge”; and Ms. Hall’s testimony is “relevant” (Resp. at 1-2). Because

the Response fails to provide anything other than these conclusory and general remarks, the Court

should sustain the Objections.

B. Ms. Hall’s declaration does not provide sufficient testimony to resolve the
disqualification and issues.

Rather than address any of the evidentiary objections, Wickfire took the opportunity to file

what is essentially a surreply in opposition of the Motion to Disqualify and Motion for Limited

Discovery. For example, the Response argues how the declaration “clearly and definitively proves

that no violation of the protective order has occurred” and TriMax has “no evidence to the

contrary” (Resp. at 1). Beyond not addressing any of the objections—and ignoring TriMax’s two

declarations at Dkt 422-1 and 430-1—this statement is false. Ms. Hall’s declaration merely

provides the unsupported statements of how she purportedly: (1) had no continuing access to the

1
This reply in support of the Objections and motion to strike the declaration’s inadmissible
testimony comports with the page and deadline requirements of Amended Local Rule CV-7(e)—
effective June 24, 2021.

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AEO Information “after the trial,” (2) destroyed the AEO Information in her possession “after the

trial,” and (3) did not share any AEO Information with anyone at Wickfire “after the trial.” (Dkt

472-2 at 3.) As TriMax noted in its prior briefing, the “after the trial” mantra (conspicuously

missing from the Response) curiously raises more questions than it answers. When exactly did Ms.

Hall divest herself of the AEO Information? Was it before she commenced her paramour

relationship with her client? Was it before she married her client? Was it before she took an in-

house position with her client? Was it before her client promoted her to a C-level position? Did

Ms. Hall share any AEO Information with anyone at Wickfire prior to the trial? Put simply, if the

answer to any of those questions is “yes,” then Ms. Hall’s conduct was improper. Ms. Hall’s failure

to provide this baseline information in her declaration certainly contradicts the Response’s

contention of how the declaration is “complete and more than sufficient to dispose of Defendant’s

motions” (Resp. at 1).

On the contrary, the objectionable declaration omits the most relevant and critical

information, including, for example: (1) identification of any evidence supporting Ms. Hall’s

unsupported statement claiming she divested herself of the AEO Information; (2) the date when

Ms. Hall purportedly divested herself of the AEO Information; (3) the manner in which Ms. Hall

purportedly divested herself of the AEO Information; (4) the relativity of the date when Ms. Hall

purportedly divested herself of the AEO Information to the date when Ms. Hall began her romantic

relationship with her client/husband/co-parent; (5) the relativity of the date when Ms. Hall

purportedly divested herself of the AEO Information to the date when Ms. Hall began her in-house

employment with her client/employer; and (6) Ms. Hall’s ownership interest in her corporate client

(Id). These topics, and various others identified in TriMax’s prior brief, are of manifest importance

to the Motion to Disqualify. And, Ms. Hall’s refusal to address them only further supports both

the Motion to Disqualify and the Motion to Conduct Limited Discovery.

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C. Ms. Hall’s romantic relationship with her client is highly relevant.

The Response argues: “Ms. [Hall]’s relationship with Mr. Hall does not even arguably

violate the protective order and does not affect Defendant’s rights” (Resp. at 2). This statement,

beyond not addressing any of the objections, is false and misleading. Ms. Hall’s romantic

relationship with her client is highly relevant for the following reasons: (1) the romantic

relationship violates various Ethics Rules (and therefore supports the Motion to Disqualify); (2)

the romantic relationship increased the likelihood Ms. Hall leaked AEO Information (and therefore

supports the Motion to Disqualify); and (3) Ms. Hall’s refusal to provide the date she began the

romantic relationship relative to when she divested herself of the AEO information suggests that

Ms. Hall did, in fact, already leak AEO Information (and therefore further supports the Motion to

Disqualify and Motion for Limited Discovery).

Furthermore, the Response claims that even raising the topic of Ms. Hall’s romantic

relationship is somehow “harassing.” However, the Response ignores the fact that a nationally-

renowned ethics expert previously advised Ms. Hall to withdraw due to her Ethics Conflict caused

specifically by her romantic relationship. Certainly Ms. Hall is not claiming he harassed her, too.

In any event, details are provided below.

1. Ms. Hall’s romantic relationship with her client violates various Ethics Rules
and therefore supports the Motion to Disqualify.

As noted above, the Response argues Ms. Hall’s romantic relationship is “irrelevant” to

the Motion to Disqualify and Motion for Limited Discovery (Resp. at 2). This is untrue since Ms.

Hall’s romantic relationship violates various Ethics Rules relevant for the Motion to Disqualify.

Indeed, in deciding motions to disqualify, courts absolutely are to consider whether the attorney

in question violated local Ethics Rules. In re ProEducation Int'l, Inc., 587 F.3d 296, 299 (5th Cir.

2009). To do that, the Fifth Circuit instructed courts first to consider “the local rules promulgated

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by the local court itself.” FDIC v. U.S. Fire Ins. Co., 50 F.3d 1304, 1312 (5th Cir. 1995). In this

case, that would be the Texas Disciplinary Rules of Professional Conduct (“Texas Disciplinary

Rules”). Specifically, TriMax refers the Court to the section titled “Discipline of Attorneys,” which

provides: “[m]embers of the bar of this court and any attorney permitted to practice before this

court must comply with the standards of professional conduct set out in the Texas Disciplinary

Rules of Professional Conduct.” Furthermore, and in addition to the Texas Disciplinary Rules,

courts are also to consider the ABA Model Rules of Professional Conduct (“ABA Model Rules”).

See In re ProEducation, 587 F.3d at 299; In re Dresser Indus., Inc., 972 F.2d 540, 543 (5th Cir.

1992); In re Am. Airlines, Inc., 972 F.2d 605, 610 (5th Cir.1992).

Texas Disciplinary Rule 1.06(b), (e) provides: “[a] Lawyer shall not represent a person, if

the representation of that person . . . [r]easonably appears to be or becomes adversely limited . . . by

the lawyer’s own interests” and if a lawyer violates this Rule, “the lawyer shall promptly

withdraw.” In addition, Comment 13 to Rule 1.06 provides “[r]elevant factors in determining

whether there is a potential for adverse effect include the duration and intimacy of the lawyer’s

relationship with the client[.]”ABA Model Rule 1.8(j) is a bit more blunt: “A lawyer shall not have

sexual relations with a client unless a consensual sexual relationship existed between them when

the client-lawyer relationship commenced.” Commentators are also in accord that romantic

relationships with clients are unethical. See William Herrscher, Love for Trade, Texas Bar Journal,

Vol. 77, No. 7, 606, 608, July 2014, article link: here (“if an irreconcilable conflict is created by

the sexual relationship, the lawyer will withdraw from the legal representation”); Jack Marshall,

Texas Lawyers and Sex: Not Horny, Just Wise, Ethics Alarms, March 5, 2011, article link: here);

(“Texas lawyers know . . . that having sex with clients is unethical”).

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When Ms. Hall appeared in the case, she was married to someone other than her client.

During the course of the case, and after receiving the AEO Information, she began a romantic

relationship with her client, divorced her prior husband, and married her client. The romantic

relationship—with or without receipt of the AEO Information—violated Texas Disciplinary Rule

1.06(b), (e) and ABA Model Rule 1.8(g) and automatically requires disqualification.

2. Ms. Hall’s likelihood of leaking AEO Information due to the romantic

relationship supports the Motion to Disqualify.

Comment [11] to Model Rule 1.7 (“Comment 11”), which concerns conflicts of interest

generally, points to how a too-close-personal relationship involving counsel creates an enhanced

risk that sensitive information—including information that should otherwise be kept closely

guarded—would be leaked. See also Ex. A. 2 (Ethics Rules expert Bill Hodes stating the

“rationale” for ABA Model Rule 1.8 concerns how “a too-close relationship can blur the lines of

both privilege and confidentiality”).

In this case, after the romantic relationship began, the likelihood of Ms. Hall leaking

information to her client increased dramatically. Furthermore, even if Ms. Hall divested herself of

the AEO Information prior to commencing the romantic relationship, which Ms. Hall’s

declaration has not claimed, Ms. Hall cannot “unsee” what she has already seen anyway. See

generally, Meisen v. Hawley Troxell Ennis & Hawley LLP, 2021 WL 1124758, n.1 (D. Idaho Mar.

24 2021) (recognizing issue of expert not being able to “unsee” certain documents after reviewing

them); In re Gen. Motors LLC Ignition Switch Litig., 477 F. Supp. 3d 170, 183 (S.D.N.Y. 2020)

(“Moreover, because the Firms could not “unsee” Common Benefit Work Product, they w[ould]

be able to take advantage of it even without “using” it per se). Thus, under Texas Disciplinary

Rules 1.06(b),(e) and ABA Model Rule 1.8(g) (coupled with Comment 11’s concern about

information leakage), Ms. Hall’s romantic relationship with her client necessitates disqualification.

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3. Ms. Hall’s concealment of evidence regarding her romantic relationship

supports the Motion to Disqualify and Motion for Limited Discovery.

As stated above, under the Ethics Rules, Ms. Hall’s paramour relationship with her client

—in and of itself—is problematic due to potential information leaks. And while Ms. Hall cannot

“unsee” the AEO Information, there is still significance in when she divested herself of copies of

the AEO Information. Key to the inquiry is also, relative to the date of such divestiture, when the

romantic relationship began. However, Ms. Hall steadfastly refuses to disclose the basic

chronology (Resp. at 2). Ms. Hall’s failure to disclose this most elementary yet critical information

suggests that such disclosure would incriminate both Wickfire and her. This further supports both

the Motion to Disqualify and the Motion for Limited Discovery.

4. An outside ethics expert advised Ms. Hall to withdraw.

Before filing its first motion to disqualify Ms. Hall, Bill Hodes, a nationally-recognized

ethics expert sent a letter to Ms. Hall identifying her Ethics Rules violations and suggesting she

withdraw as outside counsel (see attached Exhibit A). Notably, Mr. Hodes was not involved in

the litigation beforehand and offered an outsider’s point of view (Id.). In any event, the Response’s

contention that discussion of the romantic relationship is “harassment” and merely an “attempt to

pry into Ms. [Hall]’s personal life” is belied by Mr. Hodes’s independent opinion.

D. Ms. Hall’s in-house-employee relationship with her client is highly relevant.

The Response, while discussing the romantic relationship, is curiously silent on Ms. Hall’s

failure to provide declaration testimony regarding the in-house-employee relationship. In any

event, Ms. Hall’s in-house-employee relationship with her client is highly relevant for reasons

similar to those involving her romantic relationship with her client: (1) the in-house-employee

relationship violates the Protective Order (and therefore supports the Motion to Disqualify); (2)

the in-house-employee relationship violates Ethics Rules (and therefore supports the Motion to

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Disqualify); (3) the in-house-employee relationship increased the likelihood Ms. Hall leaked AEO

Information (and therefore supports the Motion to Disqualify); and (4) Ms. Hall’s refusal to

provide the date she began the in-house-employee relationship relative to when she divested

herself of the AEO information suggests that Ms. Hall did, in fact, already leak AEO Information

(and therefore further supports the Motion to Disqualify and Motion for Limited Discovery).

Details are discussed below.

1. Ms. Hall’s in-house-employee relationship with her client violates the

Protective Order and therefore supports the Motion to Disqualify.

On April 2, 2014, the Court entered a Protective Order. (Dkt 12.) The Protective Order

provides a vehicle for parties to designate certain particularly sensitive information as

“RESTRICTED – OUTSIDE ATTORNEYS’ EYES ONLY” (“AEO”) (Dkt 12, ¶8). Critically,

while the Protective Order permits disclosure of AEO information to “outside counsel of record,”

(Dkt 12, ¶¶9, 5(a)), it prohibits disclosure of AEO information to employees of parties, such as in-

house counsel (Dkt 12, ¶¶9, 5(c)-(d)). Indeed, AEO stands for “Attorneys’ Eyes Only,” of course,

but that is a slight misnomer. The combined effect of ¶9 and ¶5 of the Protective Order was to

specify “Outside Attorneys’ Eyes Only.” Thus, in-house counsel of a party was put in the same

(no-access) category as all other officers, employees, and representatives other than outside

counsel. Ms. Hall’s declaration concedes how after receiving the AEO Information, Ms. Hall

began working for her client as an in-house-employee (Dkt 427-2 at ¶ 11). Under the Protective

Order, this is ipso facto violative and more-than-sufficient grounds for disqualification. (Ex. A at

2 (Mr. Hodes noting that Ms. Hall’s in-house-employee relationship “by definition” violates the

Protective Order)).

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2. Ms. Hall’s in-house-employee relationship with her client violates Ethics Rules
and therefore supports the Motion to Disqualify.

Under ABA Model Rule 1.16(a)(1), “a lawyer shall not represent a client or, where

representation has commenced, shall withdraw from the representation of a client if: (1) the

representation will result in violation of the rules of professional conduct or other law.” ABA

Model Rule 3.4(c) provides that a lawyer shall not “knowingly disobey an obligation under the

rules of a tribunal,” and Model Rule 8.4(d) provides that it is professional misconduct for a lawyer

to “engage in conduct that is prejudicial to the administration of justice.” As noted by Mr. Hodes,

Ms. Hall’s failure to withdraw from her representation as outside counsel in this case violated ABA

Model Rule 1.16(a)(1), with the “other law” being the Protective Order itself and ABA Model

Rules 3.4(c) and 8.4(d) (Ex. A at 2). These are additional grounds supporting disqualification.

3. Ms. Hall’s likelihood of leaking AEO Information due to the in-house-

employee relationship supports the Motion to Disqualify.

After she commenced her in-house-employee relationship with her corporate client, the

likelihood of Ms. Hall leaking AEO Information increased dramatically. In fact, Ms. Hall’s

declaration never even claims that she divested herself of all the AEO Information prior to

commencing the in-house-employee relationship. Furthermore, even if Ms. Hall divested herself

of the AEO Information prior to commencing the in-house-employee relationship—which the

Declaration has not claimed—like with the issue of the romantic relationship, Ms. Hall cannot

“unsee” what she has already seen anyway. See generally, Meisen, 2021 WL 1124758, at n.1; In

re Gen. Motors, 477 F. Supp. 3d at 183. Thus, under paragraphs 9, 5(c)-(d) of the Protective Order,

Ms. Hall’s in-house-employee relationship with her client necessitates disqualification.

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4. Ms. Hall’s concealment of evidence regarding her in-house-employee

relationship supports the Motion to Disqualify and Motion for Limited
Discovery.

As stated above, under the Protective Order, Ms. Hall’s in-house-employee relationship

with her client—in and of itself—is problematic due to potential information leaks. And again,

while Ms. Hall cannot unsee the AEO Information, there is still significance in when she divested

herself of copies of the AEO Information. Key to the inquiry is when the in-house-employee

relationship began. However, Ms. Hall still refuses to disclose when she divested herself of the

AEO Information and its relativity to when she began the in-house-employee relationship. Ms.

Hall’s failure to disclose this most basic and critical information suggests such disclosure would

incriminate both Wickfire and her. This further supports both the Motion to Disqualify and the

Motion for Limited Discovery.

E. Wickfire’s claim that TriMax is not interested in Ms. Hall’s testimony is ludicrous.

Wickfire’s Response refers to the Objections as “bizarre” and suggests that the Objections

demonstrate that TriMax is uninterested in actually uncovering the extent of Ms. Hall’s

misconduct. (Resp. at 2). This is absurdly wrong. TriMax has sought before and still continues to

seek Ms. Hall’s relevant testimony—not irrelevant testimony—regarding key issues relating to

her mishandling of the AEO Information. Yet, Ms. Hall’s declaration—while ducking virtually all

the relevant issues—contains the following laughably irrelevant testimony:

• Ms. Hall’s personal opinions about her client/husband’s performance as a husband

and father: “Chet is an incredible father and husband. He is patient and kind with our
children” (Dkt 427-2 at ¶ 12);

• Ms. Hall’s personal opinions as to the level of life fulfillment her client/husband
provides her: “My life is infinitely happier because [Chet Hall and I] are together” (id.);

• Ms. Hall’s personal opinions about the character of her client/employer and the
abilities of its employees: “Wickfire is a fantastic company with an exceptional team of
smart, talented, creative people. I consider myself incredibly lucky to work with such a
high-caliber team” (Dkt 427-2 at ¶ 11); and

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• Ms. Hall’s vitriolic, disparaging, and baseless opinions about TriMax and its
personnel: “Trimax has begun to harass me and my family . . . I am sincerely afraid of
Laura Woodruff and Josh West . . . I am very concerned about [Ms. Woodruff’s] fixation
on me and my family” (Dkt 427-2 at ¶¶ 13-14).

There is certainly nothing “bizarre” about TriMax objecting to the Court’s consideration

of this and other inadmissible and prejudicial testimony. 2 While Ms. Hall’s limited relevant

testimony is certainly appropriate (e.g., her admission in the declaration to the romantic

relationship and the in-house-employee relationship), the Court should not consider the irrelevant

and inadmissible portions of Ms. Hall’s declaration. This is especially key for those portions of

Ms. Hall’s declaration so obviously included with the intention to: (1) misdirect and distract the

Court from the relevant issues and Ms. Hall’s failure to provide relevant testimony, (2) glorify Ms.

Hall and her client/husband/employer, and (3) vilify and victim-blame the movants. In short, when

determining the Motion to Disqualify or Motion for Limited Discovery, the Court should sustain

the Objections and not consider the inadmissible portions of Ms. Hall’s declaration.

2
What is “bizarre,” is Wickfire’s expectation that the Court would consider Ms. Hall’s
irrelevant testimony, yet permit Ms. Hall to avoid providing the necessary relevant testimony
because—notwithstanding the seriousness and importance of the Ethics Rules and the Protective
Order—such testimony relates to Ms. Hall’s “personal life” (Resp. at 2). What is also bizarre is
how Ms. Hall already published preposterous statements about her personal life, such as when she
“fell in love” with Chet Hall (Dkt 472-2 at par. 12). In other words, Wickfire suggests testimony
about Ms. Hall’s personal life is fair game when used to distract or prejudice the Court but not
when such testimony could (and likely will) incriminate her or her clients.

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EXHIBIT A
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