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Control N mber: 46734

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Item Number: 131

Addendum StartPage: 0

SOAH DOCKET NO. 473-17-2691 2Pii I"" H 0 DOCKET NO. 46734

PETITION OF MURPHY OIL CORPORATION FOR DECLARATORY ORDER REGARDING SERVICE TO THE MURPHY OIL EAGLE FORD LEASEHOLD AREA

,r r

BEFORE THE STÂTE OFFICE ._

OF

ADMINISTRATIVE HEARINGS

PRIORITY POWER MANAGEMENT, LLC's, REPLY TO SOUTH TEXAS ELECTRIC COOPERATIVE'S AND RIO GRANDE ELECTRIC COOPERATIVE, INC.'S AUGUST 28 AND 29, 2017, RESPONSES,

REQUEST FOR HEARING, AND SUBMISSION OF SECOND AFFIDAVIT OF JOHN BICK

TO THE HONORABLE ADMINISTRATIVE LAW JUDGE:

COMES NOW Priority Power Management, LLC ("Priority"), a non-party in the

referenced docket, and, pursuant to 16 TAC §§ 22.78(a), 22.141(c), 22.144(d)-(h), and 22.145,

Tex. R. Civ. Proc. 176.6, 176.7, 193.3, 193.4, 199.6, Tex. R. Civ. Evid. 503 and 507, and other

authority and files its reply to South Texas Electric Cooperative's ("STEC') and Rio Grande

Electric Cooperative, Inc.'s ("RGEC") August 28 and 29, 2017, responses, request for hearing,

and its submission of the second affidavit of John Bick. In support, Priority would show the

following:

LIMITED APPEARANCE

As noted in earlier filings, Priority is not a party to Docket No. 46734. Priority is,

however, a party affected by and participating in the litigation in Docket No. 46734. Priority is

the party principally affected by and under order to respond to RGEC's July 27, 2017, subpoena

duces tecum. That subpoena compels Priority to appear to disclose various documents that

RGEC seeks in connection with its litigation of this docket. Priority has complied and has

provided its responses on August 10, 2017.

Priority again appears in this docket not to seek party status or to assert any substantive

claim that is the subject of this docket but instead to assert its reply to RGEC's and STEC's

August 28 and 29, 2017, filings, to request a hearing on its claims of privilege, and to submit the

attached Second Affidavit of John Bick.

1

REPLY TO STEC's RESPONSE

In this section, Priority responds to one issue in STEC's August 28, 2017, response, as

follows:

In its August 28, 2017, Response to Murphy's and Priority's motions to strike, STEC

claims that Murphy and Priority are not allied litigants.1 STEC is incorrect as its own argument

reflects. In its filing, STEC cites the Texas Supreme Court holding in In re XL Specialty Ins.

Co.2 to the effect that the allied litigant doctrine protects communications between a client or a

clients lawyer to another party's lawyer. STEC then claims that the communications are from

John Bick, not counsel. First, some of the communications are from counsel. But more

importantly, John Bick is the managing principal of Priority Power. Therefore, John Bick is the

client and/or the client's representative. Therefore, the communications between him, as the

client, Priority's counsel, and counsel for Murphy fall squarely within the common interest or

allied litigant privilege.

REPLY TO RGEC's RESPONSE

In this section, Priority responds to two issues in RGEC's response, as follows:

RGEC's claim Priority did not submit affidavit.

RGEC claims that Priority has not submitted an affidavit supporting its claims of trade

secret and attorney-client privilege. Priority has not submitted an affidavit to date. However, the

PUC's rules3 and the August 3, 2017, agreement did not establish a date for submission of an

affidavit. Moreover, the PUC's rules do not necessarily require an affidavit4 and it is common

practice for parties to respond to motions to compel privileged documents through pleadings, a

privilege log, and the submission of the documents for in camera review, without affidavit. 5

STEC Response at 9 (Aug. 28, 2017).

2 In re XL Specialty Ins. Co., 373 S.W.3d at 52 (Tex. 2012).

3 16 TAC §22.144(d)-(g).

4 Id.

See, e.g., Application of TXU SESCO Energy Services Company to Increase Price to Beat Fuel Factors and Reduce Price to Beat Base Rates, Docket No. 28585, Item 62, TXU SESCO's Response to OPUC Motion to Compel (Oct. 22, 2003) (no affidavit proving privileges; affidavit attached relates to ownership by others, confidentiality agreement, and non-reliance in testimony); Application of

2

First, regarding Priority's submission to date, the requirement for submission of an

affidavit, to the extent it applies, is tied to the deadline for responding to motions to compel. As

asserted in Priority's motion to strike, RGEC's motion to compel, filed on August 18, 2017, one

day after the agreed deadline of August 17, 2017, was not timely under the parties August 3,

2017, agreement, and, therefore, the timeline for submitting affidavits or other proof has never

started to run and no deadline for submitting affidavits has yet been established.

Next, RGEC is incorrect when it declares that the party asserting a privilege must

establish a prima facie case for the privilege by testimony or affidavit. While the burden may be

on Priority to establish that its documents are privileged, Texas law does not require an affidavit

or testimony. Supreme Court authority6 and Commission practice' make clear that while an

affidavit may be one way to establish privilege, the documents themselves are also evidence that

makes a prima facie case.' When the claim for protection is based on a specific privilege, the

CenterPoint Energy Houston Electric, LLC for Authority to Change Rates, Docket No. 38339 Item 319 Response to City of Houston's Motion to Compel (Sep. 1, 2010) (no affidavit proving privileges; affidavit attached relates only to proof of authenticity of records); Complaint of City of Houston Against Southwestern Bell Telephone LP, dba AT&T Texas, Docket No. 40115, AT&T's Response to City of Houston's 4th RFI and AT&T's Response to City of Houston's Motion to Compel Responses to 4th RFI (Sep. 12 and 13, 2013) (no affidavit proving privileges).

6 See Weisel Enterprises Inc. v Curry, 718 S.W.2d 56, 58 (Tex. 1986) (`Under certain circumstances, such as when relevancy or harassment is the basis for protection, affidavits or live testimony may be sufficient proof. When, however, the claim for protection is based on a specific privilege, such as attorney-client or attorney work product, the documents themselves may constitute the only evidence substantiating the claim of privilege."); In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) ("The prima facie standard requires only the 'minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.' Tex. Tech Univ. Health Sci. Ctr. v. Apodaca, 876 S.W.2d 402, 407 (Tex. App.-El Paso 1994, writ denied). The documents themselves may constitute sufficient evidence to make a prima facie showing of attorney-client or work product privilege. Weisel Enters., Inc. v. Curly, 718 S.W.2d 56, 58 (Tex. 1986)). .

7 See, e.g., Application of TXU SESCO Energy Services Company to Increase Price to Beat Fuel Factors and Reduce Price to Beat Base Rates, Docket No. 28585, Item 62, TXU SESCO's Response to OPUC Motion to Compel (Oct. 22, 2003) (no affidavit proving privileges; affidavit attached relates to ownership by others, confidentiality agreement, and non-reliance in testimony); Application of CenterPoint Energy Houston Electric, LLC for Authority to Change Rates, Docket No. 38339 Item 319 Response to City of Houston's Motion to Compel (Sep. 1, 2010) (no affidavit proving privileges; affidavit attached relates only to proof of records); Complaint of City of Houston Against Southwestern Bell Telephone LP, dba AT&T Texas, Docket No. 40115, AT&T's Response to City of Houston's 4th RFI and AT&T's Response to City of Houston's Motion to Compel Responses to 4th RFI (Sep. 12 and 13, 2013) (no affidavit proving privileges).

See Weisel, 718 S.W.2d at 58; DuPont, 136 S.W.3d at 223.

3

documents themselves may constitute the only evidence substantiating the claim of privilege.9

Priority's privilege log (attached) and in camera submission establishes a prima facie case that

the documents include trade secrets.

In addition, any requirement for the submission of testimony or affidavits is subject to the

timing established in Tex. R. Civ. Proc. 193.4(a).1° Tex. R. Civ. Proc. 193.4(a) provides that

affidavit and testimony are required when the matter has been submitted for a hearing." To date,

no party has requested a hearing or prehearing on this matter.' However, in light of RGEC's

claim, Priority hereby asserts its demand for a hearing on its claims of privilege.

Finally, however, because RGEC has now raised the issue and has asserted the need for

an affidavit, though Priority maintains an affidavit is not the only means to establish a prima

facie claim and potentially not required procedurally, Priority hereby submits the attached

second affidavit of John Bick. The affidavit, like Priority's privilege log (attached) and the

documents that Priority has submitted for in camera review, establish the required prima facie

case that Items 58 through 66 in Priority's listed below and in its privilege log are trade secret

privileged and that items 67 through 77 listed below and in the privilege log (attached) are

protected by the attorney-client privilege.

Priority documents submitted for in camera inspection: Privileged documents sought in RGEC Request No. 11

Ln

58

Item

2

Privilege

Trade Secret

Description

P RGEC SDT-11 2017-01-06 401PM — —

Date

1/6/2017

Format

Email

59 3 Trade Secret

P RGEC SDT-11 2017-01-06 408PM — —

1/6/2017 Email

60 4 Trade Secret

P RGEC SDT-11 2017-01-06 418PM — —

1/6/2017 Email

61 5 Trade Secret

P RGEC SDT-11 2017-01-06 424PM — —

1/6/2017 Email

62 6 Trade

Secret P RGEC SDT-11 2017-01-06 444PM

— — 1/6/2017 Email

9 Id. 10 Tex. R. Civ. Proc. 193.4(a).

" Id.

12 Id.

4

63 7 Trade Secret

P RGEC SDT-11 2017-01-06 502PM — —

1/6/2017 Email

64 8 Trade Secret

P RGEC SDT-11 2017-02-08 923AM — —

mail 2/8/2017

E

65 9 Trade Secret

P RGEC SDT-11 2017-02-10 549PM — —

mail 2/10/2017

E

66 10 Trade Secret

P RGEC SDT-11 2017-03-23 602PM — —

mail 3/23/2017

E

67 11 Atty-Client P_RGEC SDT-11_2017-06-20 359PM 6/20/2017 Email

68 12 Atty-Client

P_RGEC SDT-11_2017-06-20 359PM_Attachment_Murphy Response to RGEC Motion for Subpoena_Active_35658124_1 6-20_Active_35669107_1

6/20/2017 Attachment Word doc




72 16 Atty-Client P _ RGEC SDT-11 _2017-07-31 246PM 7/31/2017 Email

73 17

Atty-Client P _ RGEC SDT-11 _2017-08-01 1147AM

Email 8/01/2017



76 20 Atty-Client P _ RGEC SDT-11 _2017-08-03 1155AM 8/3/2017 Email

77 21 Atty-Client P _ RGEC SDT-11 _2017-08-04 1030AM 8/4/2017 Email

RGEC's claim regarding common interest privilege.

RGEC claims that the items listed are not protected by the common issue joint defense

privilege because Priority is not a party. RGEC's construction is overly strict and fails to

recognize that the scope of the term "party" as addressed in the privilege relates to separate

entities affected by common legal issues in the same litigation.

RGEC misapplies In re XL Specialty Ins. Co." While it is true that the Supreme Court

expressly rejected a "common interesr claim under Texas Rule of Evidence 503(b)(1)(c) and,

13 In re XL Specialty Ins. Co., 373 S.W.3d 46, 52 (Tex. 2012) ("The joint defense rule applies when multiple parties to a lawsuit, each represented by different attorneys, communicate among themselves for the purpose of forming a common defense strategy. In re JDN, 211 S.W.3d at 923. Unlike the common interest doctrine, the joint defense doctrine applies only in the context of litigation.").

5

further, rejected a claimed allied litigant privilege in that case, it did so because Cintas, the

employer in a workers compensation claim, was not a participant in the pending action.14 Here,

Priority, though not an intervening party, is nevertheless a participant in this pending action as a

result of RGEC's subpoena duces tecum. When RGEC submitted its request for a subpoena

duces tecum to compel production from Priority, a common interest in the legal claims and

issues in this litigated docket was created between Priority and Murphy. As the Supreme Court

made clear in XL Specialty, the point of the allied litigant doctrine is to allow parties, represented

by separate counsel, to work together in a common defense in the context of a pending action.15

Because Priority and Murphy share a common defense in this pending action regarding RGEC's

subpoena duces tecum, they are entitled to protection of the common interest, allied litigant

privilege.

RESPONSE TO STEC'S MOTION FOR RULING ON PENDING DISCOVERY REQUESTS

Priority includes this section in its response only to note that STEC's motion for rulings

on pending discovery requests relates to specific sets of RFIs and does not include within its

scope RGEC's subpoena duces tecum. While STEC may later claim that the timing of the

resolution of RGEC's subpoena may affect the preparation of STEC's and RGEC's testimony as

well, STEC has not included the subpoena in its request for a ruling.

CONCLUSION AND PRAYER

Priority submits its response to RGEC's response. Priority prays for the ALJ to accept

and consider its replies in this submission along with the attached second affidavit of John Bick

along with its review of the documents Priority tendered earlier for in camera review. Priority

prays for the ALJ to reject STEC's and RGEC's claims for the reasons stated. Priority prays for

the All to approve Priority claims of privilege after its in camera review of the documents that

Priority has listed in its privilege log and has submitted separately for in camera inspection.

Priority requests a hearing on its privilege claims. To the extent that such information is required

to be disclosed, Priority requests protective orders as described in its earlier filings. Priority

requests such other and further relief to which it may show itself to be entitled.

14 Id. at 50-55.

15 Id.

6

JAMES Z. BRAZELL State Bar No. 02930100

Respectfully submitted,

LAW OFFICE OF JAMES Z. BRAZELL James Z. Brazen 9442 Capital of Texas Hwy., Plaza I, Suite 500 Austin, Texas 78759 512-340-7387 Ofc. 512-879-3971 FAX 512-658-0830 Mbl. [email protected] www.brazelllaw.com

ATTORNEY FOR PRIORITY POWER MANAGEMENT, LLC

CERTIFICATE OF SERVICE

I hereby certify that on this the 31' day of August 2017 a true and correct copy of the foregoing document was served upon all parties of record by FAX, personal delivery, and/or First-Class United States mail, postage paid, or by e-mail delivery (as required in SOAH Order No. 7).

7

DOCKET NO. 46734

RIO GRANDE ELECTRIC COOPERATIVE, INC'S JULY 27, 2017, SUBPOENA DUCES TECUM

Ln.

#

58

Item

#

2

Req.

#

11

Privilege

Trade Secret

PRIORITY

Filename

P RGEC SDT-11 2017-01-06 — —

401PM

Date

1/6/2017

POWER MANAGEMENT,

Author(s)

John Bick

LLC'S PRIVILEGE

Recipients

Two representatives of a PPM client (identity subject to Trade Secret claim)

LOG

cc(s)

Pat Ennis, Tim Ennis of PPM

Description

PPM provided a copy of the Murphy Petition for Declaratory Order to a PPM client, advising of the proceeding and potential impact on build out of private electrical infrastructure.

Type

Email

59 3 11 Trade Secret

P RGEC SDT-11 2017-01-06 — —

408PM 1/6/2017 John Bick

One representative of a PPM client (identity subject to Trade Secret claim)

Pat Ennis, PPM

PPM provided a copy of the Murphy Petition for Declaratory Order to another PPM client, advising of the proceeding and potential impact on build out of private electrical infrastructure.

Email


P RGEC SDT-11 2017-01-06 — —


One representative of a PPM client

(identity subject to Trade Secret claim)

Tyler Randolph, PPM

PPM provided a copy of the Murphy Petition for Declaratory Order to another PPM client, advising of the proceeding and

potential impact on build out of private electrical infrastructure.

Email


P RGEC SDT-11 2017-01-06 — —


Two representatives

of a PPM client (identity subject

to Trade Secret claim)

Pat Ennis, Kevin Yung of PPM; 1 PPM Customer Representative



Email


P_RGEC SDT-11_2017-01-06 444PM

1/6/2017 John Bick

Five

representatives of a PPM client


Pat Ennis, Kevin Yung, Roger Kienast, of PPM.

PPM provided a copy of the

Murphy Petition for Declaratory Order to another PPM client, advising of the proceeding and potential impact on build out of private electrical infrastructure.

Email

8

Ln.

#

63

item

#

7

Req.

#

11

Privilege

Trade Secret

Filename

P RGEC SDT-11 2017-01-06 — —

502PM

Date

1/6/2017

Author(s)

John Bick

Recipients

Four representatives of a PPM client (identity subject


cc(s)

Pat Ennis, Kevin Yung, Roger Kienast,

of PPM.

Description


Type

Email


P_RGEC SDT-11_2017-02-08

923AM 2/8/2017 John Bick

Three representatives of a PPM client


Pat Ennis, PPM Provided an update on the

Murphy case Email


P RGEC SDT-11 2017-02-10 — —

549PM

2/10/201 7

John Bick

Three representatives of PPM client (identity subject


Pat Ennis, PPM Provided an update on the Murphy case

Email


P RGEC SDT-11 2017-03-23 — —

602PM

3/23/201 7

John Bick

One representative of a PPM client


Pat Ennis, PPM Provided an update on the Murphy case

Email

67 11 11 Atty- Client

P_RGEC SDT-11_2017-06-20 359PM

6/20/201

7

Andrea

Stover John Bick, James Brazen

Pat Ennis, Kane Heinen, James Barkley

Email attorney-client communication regarding RGEC subpoena request

Email


P_RGEC SDT-11_2017-06-20

359PM_Attachment_Murphy Response to RGEC Motion for

Subpoena_Active_35658124_ 1 6-20_Active_35669107_1

6/20/201

7

Andrea Stover

John Bick, James Brazell


Email attorney-client communication regarding RGEC

subpoena request

Attachmen t Word doc


P_RGEC SDT-11_2017-06-20 459PM

6/20/201 7

Andrea Stover

John Bick, James Brazell


Email attorney-client communication regarding RGEC subpoena request

Email

9

Ln.

#

70

item

#

14

Req.

#

11

Privilege

Atty- Client

Filename

P_RGEC SDT-11_2017-06-20

533PM

Date

6/20/201 7

Author(s)

James BrazeII

Recipients

Andrea Stover

cc(s)

John Bick, Pat Ennis, Kane

Heinen, James

Barkley

Description

Email attorney-client

communication regarding RGEC

subpoena request

Type

Email

71 15 11 Atty- Client P_RGEC SDT-11_2017-06-30

828PM 6/30/201

7 James Barkley John Bick

Andrea Stover,

Joyce Banks, Kane Heinen,

James BrazeII



subpoena request

Email


P RGEC SDT-11 2017-07-31 — —

246PM

7/31/201 7

James Brazell

John Bick, Pat

Ennis James Brazell



subpoena request

Email


P_RGEC SDT-11_2017-08-01 1147AM

8/1/2017 James Braze!!

John Bick, Pat

Ennis James Brazell



subpoena request

Email


P RGEC SDT-11 2017-08-02 — —

314PM 8/2/2017 James Braze!!

Jim Barkley,

Andrea Stover

John Bick,

James Brazell



subpoena request

Email


P RGEC SDT-11 2017-08-02 — —

449PM 8/2/2017 John Bick James Brazell

Andrea Stover,

Jim Barkley

Email attorney-client communication regarding RGEC

subpoena request

Email


P RGEC SDT-11 2017-08-03 — —

1155AM 8/3/2017

James

Barkley James Brazell

Andrea Stover,

Joyce Banks,

John Bick



subpoena request

Email

77 21 11 Atty-

Client P RGEC SDT-11 2017-08-04

— — 1030AM 8/4/2017 John Bick

James Brazell, Jim Barkley

Andrea Stover,

Joyce Banks



subpoena request

Email

10

SOAH DOCKET NO. 473-17-2691 DOCKET NO. 46734

PETITION OF MURPHY OIL CORPORATION FOR DECLARATORY ORDER REGARDING SERVICE TO THE MURPHY OIL EAGLE FORD LEASEHOLD AREA

BEFORE THE STATE OFFICE

OF

ADMINISTRATIVE HEARINGS

SECOND AFFIDAVIT OF JOHN J. BICK

STATE OF TEXAS

COUNTY OF TARRANT §

1. Before me, the undersigned authority, personally appeared John J. Bick, who being

duly sworn states:

2. My name is John J. Bick. I am over the age of eighteen (18) years and I am fully

competent to testify to the matter set forth in this Affidavit, which are within my personal

knowledge, and are true and correct to the best of my understanding.

3. I have a Bachelor of Science degree in Construction Engineering Technology from

Texas Tech University. I have also completed Executive Management programs at Southern

Methodist University Cox School of Business and Wharton School of Business.

4. I am the Managing Principal of Priority Power Management ("Priority Power"). In

my position at Priority Power, I advise clients regarding energy management, load aggregation,

risk management, demand-side management, capital and asset management, and evaluation of

strategic outsourcing services. I have been with Priority Power since 2003. Prior to that, I was

employed by the predecessor company of Oncor Electric Delivery Company in various positions

from 1989 to 2000, including Customer Service Representative, Account Manager, Key Account

Executive, and Manager of Strategic Accounts.

5. In or around June 2016, Murphy Oil Corporation (`Murphy Oil") contacted Priority

Power seeking advice regarding the best way to provide electric service to two of Murphy Oil's

fields in the Catarina area of the Eagle Ford Shale. In this proceeding, these Murphy Oil fields are

referred to as the North and South Fields.

1

6. On or around January 6, 2017, February 8 and 10, 2017, and March 3, 2017, I

advised six (6) specific clients of Priority Power of the pendency of Docket No. 46734 and the

nature of Murphy's request. In each of those communications, I addressed specific individuals

employed by the Priority clients I sent the information to. I also sent certain client specific data

along with the submission to illustrate how Docket No. 46734 might be of interest to those clients.

7. The documents listed as Priority Items 58 through 66 and/or the names of the

Priority clients, the names and identities of the client contacts, and the attached client-specific data

meet the six factors that determine that information is a trade secret:

8. The information is not known outside of the business. The information Priority

included in its communications with its clients was client-specific information that Priority and

the clients maintain as highly valuable secret information. It is information that is knows by

Priority's clients because it relates to their specialized trade or business. It is information that is

known by Priority because Priority has been given access to it to allow Priority to provide services

to its clients. Otherwise, the information is not known outside of Priority or outside the business

of Priority s clients.

9. The information is known by Priority employees that are involved with the

particular clients, but is otherwise not known by employees and others involved in the business.

Priority's personnel that are assigned to the Priority clients involved have access to the data. But

other Priority employees and third parties do not have access to the data.

10. Priority and Priority's clients have taken significant of measures taken to guard the

secrecy of the information. Priority has maintained the information in strict confidence. Priority

has security measures and practices in place to protect the information. Priority's clients have also

maintained the information in strict confidence.

11. The information has significant value to the business and would have, were it

disclosed, significant value to Priority's competitors and to Priority's client's competitors.

12. Priority has expended significant effort and funds money expended in developing

the information. Priority has acquired the information over a period of many years. Priority has

acquired and compiled the information from various public and private data sources. Priority has

added its own analysis and review of these data sources;

13. The information would not easily be acquired or duplicated by others or

competitors and would be difficult for others and competitors to be properly acquired or duplicated

2

by others. As stated in the preceding bullet, Priority has developed this data from various sources

at great expense. Priority has developed the information by use of Priority's relationships with its

clients and Priority's special skills, knowledge, and experience. As shown by the documents

submitted for in camera review, the information is information that would not be easily acquired

or duplicated by others or by competitors of Priority or Priority's clients.

14. While Priority understands that it is not required to establish that all six factors

support finding the information is a trade secret and that trade secret data does not always fit neatly

into each factor and other factors may be relevant based on the circumstances of a particular case,

nevertheless, as stated above, and as shown in by the documents that Priority submitted for in

camera review, Priority's information falls within all six categories.

15. Because the information is not known outside Priority's and its clients business, is

of great value in Priority's and its clients' businesses, and was developed at great expense, Priority

and its clients would be harmed by the disclosure of the information to competitors and potential

competitors.

16. The information was prepared for others as part of my engagement for those clients

and contains information that is the property of those clients and is subject to confidentiality

provisions that prevent my releasing it.

17. Documents listed as Items 67 through 77 are protected under the attorney-client,

allied litigant, common issue, and/or common defense privilege:

18. Listed documents 67 through 77 were prepared in anticipation of a potential

opposition to RGEC's request for a subpoena duces tecum. They were prepared either by myself,

John Bick, Managing Principal of Priority, and communicated to Priority's outside counsel or they

were prepared by Priority's outside counsel and communicated to Priority. As such, the documents

qualify for the protection of the attorney-client privilege.

19. The listed documents are confidential communications between Priority,

representatives of Priority, and Priority's attorney(s) made for the purpose of facilitating the

rendition of professional legal services.

20. The documents were prepared by a representative of Priority or by Priority's

attorney(s), and were intended to aid the attorney in developing legal advice on the availability

and likelihood of success of Priority's objection to Rio Grande Electric Cooperative's motion for

3

Johnj.

subpoena duces tecum. As such, the listed documents are protected from disclosure under the

lawyer-client privilege. Tex. R. Civ. Evid. 503.

21. The documents were also addressed to counsel for Murphy because, once RGEC

submitted its request for a subpoena duces tecum, Priority and Murphy shared a common interest

and became allied litigant with respect to RGEC's subpoena and shared a common interest or

defense in objecting to and later responding to the requested subpoena.

22. I declare under penalty of perjury under the laws of the United States of America

that the foregoing is true and correct. g.

Executed thisy day of August, 2017.

SUBSCRIBED AND SWORN to before me on \ day of August, 2017.

VICKIE L BROOKS Notary ID # 7395357

My Commission Expires March 14, 2021

Mit 19__-)ocK Notary Public, State of Texas

4