CAUSE NO.

CC-10-08658-E

FERNANDO ROSALES AND § IN THE COUNTY COURT AT LAW

INITIATIVE PARTNERS, LLC, D/B/A §
LOST SOCIETY, §
§
Plaintiffs §
§
v. § NO. 5
§
§
AVI S. ADELMAN, BARKINGDOGS.ORG, §
AND DALLAS CREATIVE, INC., §
§
Defendants. § DALLAS COUNTY, TEXAS

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUESTS FOR DISCLOSURE

TO: Plaintiffs Fernando Rosales and Initiative Partners, LLC, d/b/a Lost Society, by and
through their attorney of record, Armando Miranda, 923 West Jefferson, Dallas, TX
75208

Defendants Avi S. Adelman, BarkingDogs.org (erroneously sued as BarkingDog.org),

and Dallas Creative (erroneously sued as Dallas Creative, Inc.) serve this Response to Plaintiffs

Fernando Rosales and Initiative Partners, LLC, d/b/a Lost Society’s Requests for Disclosure

made under Texas Rules of Civil Procedure 194.2.

DEFENDANTS’ RESPONSES TO PLAINTIFFS’ REQUESTS FOR DISCLOSURE Page 1

 RESPONSES TO REQUESTS FOR DISCLOSURE

(a) the correct names of the parties to the lawsuit;

RESPONSE:

BarkingDog.org and Dallas Creative, Inc. are improper parties to this action. The correct
parties are BarkingDogs.org and Dallas Creative. Avi S. Adelman is correctly named.

(b) the name, address, and telephone number of any potential parties;

RESPONSE:

Defendants are unaware of any potential parties at this time.

(c) the legal theories and, in general, the factual bases of the responding party’s claims or
defenses (the responding party need not marshal all evidence that may be offered at trial);

RESPONSE:

Defendants have generally denied the Plaintiffs’ allegations. Defendants have also
specially denied the allegations in Paragraph 5 of Plaintiffs’ First Amended Petition because
Plaintiffs improperly named as defendants “Dallas Creative, Inc.” and “BarkingDog.org.”

Additionally, Defendants have asserted the following affirmative defenses:

1. Plaintiffs’ Petition fails to state a claim upon which relief may be granted.

2. Defendants did not publish any statements that were false about Plaintiffs.

3. Defendants’ challenged articles and statements are protected and privileged under
the First Amendment of the United States Constitution, the Texas Constitution,
statutes, and common law.

4. The statements and the news articles challenged by Plaintiffs are accurate
accounts of observations made by third parties and/or accurate accounts of public
and official records.

5. The statements and news articles challenged by Plaintiffs are privileged and
protected under Texas Civil Practice and Remedies Code § 73.002(b)(1) and
similar common law privileges as fair, true, and impartial accounts of official
proceedings, judicial proceedings, executive proceedings, and/or public meetings.

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUESTS FOR DISCLOSURE Page 2

 6. The statements and news articles challenged by Plaintiffs are privileged and
protected under Texas Civil Practice and Remedies Code § 73.002(b)(2) and
similar common law privileges as fair comments on and/or criticisms of official
acts of public officials and/or on matters of public concern.

7. Defendants’ statements and articles were privileged and justified, not wrongful or
independently tortious, as required to recover for tortious interference with
business relations.

8. The statements and news articles by Plaintiffs contain statements of opinions and
other statements that are not assertions of fact and are not actionable.

9. The statements and news articles challenged by Plaintiffs are newsworthy and
involve matters of public interest and concern.

10. The statements and articles challenged by Plaintiffs consist of accurate reporting
on matters of public interest.

11. Plaintiff Rosales is a limited-purpose public figure who must prove actual malice
by clear and convincing evidence to recover on any claim in this action.
Defendants did not act with actual malice.

12. Defendants acted without malice and/or without the requisite scienter in the
constitutional, statutory, and common law senses in all of the alleged actions
about which Plaintiffs complain.

13. Plaintiffs’ intentional infliction of emotional distress claim is barred because there
are other tort remedies in law potentially available to Plaintiffs.

14. Plaintiffs’ intentional infliction of emotional distress claim fails because the
complained-of conduct and statements by Defendants are not sufficiently
outrageous.

15. Plaintiffs’ own intentional and negligent conduct, and/or the conduct of others,
caused the damages that Plaintiffs seek to recover from Defendants.

16. Plaintiffs’ recovery is barred, in whole or in part, by the provisions of the

comparative responsibility statutes of the State of Texas, including Chapter 33 of
the Civil Practice & Remedies Code.

17. Defendants did not proximately cause Plaintiffs’ alleged damages.

18. There are other reports, public documents, public information, and public
proceedings that proximately caused or contributed to Plaintiffs’ alleged damages.

19. Pursuant to the Civil Practice and Remedies Code, any damages would be
mitigated by the factors listed in §§ 73.003(a)(1) and (2) and (b).

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUESTS FOR DISCLOSURE Page 3

 20. Plaintiffs have failed to mitigate their alleged damages.

21. Plaintiffs’ alleged damages are speculative and uncertain.

22. Plaintiffs cannot recover exemplary damages under applicable law. In addition,
or in the alternative, Plaintiffs’ claims for punitive or exemplary damages are
subject to the limitations and requirements of Chapter 41 of the Texas Civil
Practice and Remedies Code.

23. Any award of punitive or exemplary damages against Defendants would violate
Defendants’ rights under the United States Constitution and Texas Constitution,
including, but not limited to, the Due Process Clause of the Fifth and Fourteenth
Amendments to the United States Constitution.

24. With respect to Plaintiffs’ demand for punitive or exemplary damages,

Defendants specifically incorporate by reference any and all standards or
limitations regarding the determination and enforceability of punitive or
exemplary damages that appear in the following opinions, among others: State
Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); BMW of N. America
v. Gore, 517 U.S. 559 (1996).

(d) the amount and any method of calculating economic damages;

RESPONSE:

Defendants do not believe that Plaintiffs suffered any economic damages, and Defendants
are not seeking to recover economic damages in this lawsuit at this time.

(e) the name, address, and telephone number of persons having knowledge of relevant facts,
and a brief statement of each identified person’s connection with the case;

RESPONSE:

Avi Adelman (Defendant)

5715 Belmont Ave.
Dallas, TX 75206
214-923-3562

Fernando Rosales (Plaintiff)

2842 Fantail Dr.
Mesquite, TX 75181
214-823-9600

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUESTS FOR DISCLOSURE Page 4

Brightman Nwatu
Contact information unknown
Plaintiffs’ former partner, co-owner, and/or employee

Neil Ludwig
General Manager, Service Bar and Sofrano’s
1919 Greenville Ave.
Dallas, TX 75206
214-824-8599
Lower Greenville bar owner with knowledge of Plaintiffs’ reputation

Richard Avila
Owner, Mextopia
2104 Greenville Ave.
Dallas, TX 75206
214-824-9400
Lower Greenville bar owner with knowledge of Plaintiffs’ reputation

Cap Priggre
Owner, Sugar Shack
1909 Greenville Ave.
Dallas, TX 75206
214-826-4500
Lower Greenville bar owner with knowledge of Plaintiffs’ reputation

Marc Andres
Andres Properties
2800 N. Henderson Ave., Suite 200
Dallas, TX 75206
Plaintiffs’ landlord

Roger Andres
Andres Properties
2800 N. Henderson Ave., Suite 200
Dallas, TX 75206
Plaintiffs’ landlord

Tameka Harris
Open Records Coordinator, Texas Alcoholic Beverage Commission
P.O. Box 13127
Austin, TX 78711
512-206-3333
Custodian of documents relevant to the Texas Alcoholic Beverage Commission’s investigation
of Plaintiffs

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUESTS FOR DISCLOSURE Page 5

Ericka Sanders
Open Records Coordinator, City of Dallas
3112 Canton St. #102
Dallas, TX 75226
214-670-5708
Custodian of documents relevant to the City of Dallas’s and Dallas Police Department’s
investigations of Plaintiffs

Pursuant to Section 22.023(a)(2) of the Civil Practice and Remedies Code, Defendant Avi
Adelman declines to provide the names of certain other persons having knowledge of relevant
facts.

(f) for any testifying expert:

(1) the expert’s name, address, and telephone number;
(2) the subject matter on which the expert will testify;
(3) the general substance of the expert’s mental impressions and opinions and a brief
summary of the basis for them, or if the expert is not retained by, employed by, or
otherwise subject to the control of the responding party, documents reflecting
such information;
(4) if the expert is retained by, employed by, or otherwise subject to the control of the
responding party:
(A) all document, tangible things, reports, models, or data compilations that
have been provided to, reviewed by, or prepared by or for the expert in
anticipation of the expert’s testimony; and
(B) the expert’s current resume and bibliography;

RESPONSE:

At this time, Defendants have not designated any testifying experts.

(g) any discoverable indemnity and insuring agreements;

RESPONSE:

At this time, Defendants do not believe there is applicable indemnity or insurance

coverage for this case.

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUESTS FOR DISCLOSURE Page 6

(h) any discoverable settlement agreements;

RESPONSE:

None.

(i) any discoverable witness statements;

RESPONSE:

None.

(j) in a suit alleging physical or mental injury and damages from the occurrence that is the
subject of the case, all medical records and bills that are reasonably related to the injuries
or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such
medical records and bills;

RESPONSE:

Not applicable

(k) in a suit alleging physical or mental injury and damages from the occurrence that is the
subject of the case, all medical records and bills obtained by the responding party by
virtue of any authorization furnished by the requesting party.

RESPONSE:

Not applicable

(l) the name, address, and telephone number of any person who may be designated as a
responsible third party.

RESPONSE:

None at this time. Defendants reserve the right to designate responsible third parties
pursuant to Texas Civil Practice and Remedies Code §33.004.

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUESTS FOR DISCLOSURE Page 7

 Respectfully submitted,

VINSON & ELKINS L.L.P.

____________________________________
Thomas S. Leatherbury
State Bar No. 12095275
Lisa R. Helem
State Bar No. 24072145
Tyler J. Bexley
State Bar No. 24073923
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201-2975
Telephone: 214.220.7792
Facsimile: 214.999.7792

Counsel for Defendants Avi S. Adelman, BarkingDogs.org,

and Dallas Creative

CERTIFICATE OF SERVICE

I hereby certify that on February 4, 2011 a true and correct copy of Defendants’ Response
to Plaintiffs’ Requests for Disclosure was served on the following counsel of record by certified
mail, return receipt requested and electronic mail:

Armando Miranda
923 West Jefferson
Dallas, TX 75208
E-Mail: armin1@swbell.net

Attorney for Plaintiffs

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUESTS FOR DISCLOSURE Page 8