FILED
`4/18/2022 3:59 PM
`FELICIA PITRE
`DISTRICT CLERK
`DALLAS CO., TEXAS
`Cassandra Walker DEPUTY
`
`CAUSE NO. DC-19-09573
`
`SHANKAR PRASAD DAS,
`
`Plaintiff,
`
`V.
`
`PEPPERSTONE GROUP LIMITED,
`
`Defendant.
`
`
`
`ACO?20GPCOAUO)COP?(OD
`
`IN THE DISTRICT COURT OF
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`DALLAS COUNTY, TEXAS
`
`101ST JUDICIAL DISTRICT
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`PLAINTIFF’S MOTION FOR CONTINUANCEOF TRIAL
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`I.
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`SUMMARY
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`1.
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`Plaintiff requests continuance of the trial setting of no fewer than 120 days. Das
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`also asks the Court to reopen the fact and expert discovery period for no fewer than 90 days.
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`2.
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`Plaintiff seeks this continuance due to Defendant’s 2-year delay in document
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`production, and Defendant’s refusal to produce any witnesses, which prejudices Plaintiff's ability
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`to prove his case to a jury.
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`IL.
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`BACKGROUND
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`1.
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`For two years, Defendant Pepperstone Group Limited has abused the discovery
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`process in this case. At every turn, Pepperstone has cloaked the truth and prevented Plaintiff
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`Shankar Das from gaining the evidence needed to prove his case. These abuses have included
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`Pepperstone’s refusals to comply with discovery requests sent in June, 2020 until just last week (a
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`2-year delay in discovery compliance), refusals to follow this Court’s and the Court of Appeal’s
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`orders, spoliation of evidence, and perjury. For these abuses, Das has filed several discovery-
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`related motions seeking sanctions. See e.g., Plaintiff's Motion to Exclude, Plaintiff's Omnibus
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`Motion for Sanctions, and Plaintiff's Motion for Spoliation and Adverse Inference.
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`PLAINTIFF’S MOTION FOR CONTINUANCEOF TRIAL
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`PAGE 1
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`

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`2.
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`But on top of being sanctionable, Pepperstone’s discovery abuses have unduly
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`delayed this case despite Plaintiff's diligent efforts. Trial is less than two months away, and the
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`discovery period closed with Defendants refusing to comply with basic requests. Pepperstone has
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`just now begun producing documents first requested two years ago. Pepperstonehas also for the
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`first time (again after years of ignoring the question) admitted to having destroyed critical
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`evidence: Das’s emails from his Pepperstone account, which are the best and only evidence of
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`exactly who Das’s clients were, and how much in commissions they earned Das. Pepperstone has
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`still not made its corporate representative (or any other witnesses underits control) available for a
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`deposition, despite Plaintiff noticing their depositions on 3 previous occasions. See Plaintiff's
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`Motion to Exclude. Pepperstone induced Plaintiff into rescheduling those depositions with the
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`promise of producing all documents it was supposed to produce if Plaintiff would agree to
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`reschedule.
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`3.
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`Given the sudden influx of discoverable information—andthe sudden admission to
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`Pepperstone’s spoliation—this case will not be ready fortrial in 60 days. Instead, Das now needs
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`time to review Pepperstone’s two-years-late document production and to depose Pepperstone’s
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`witnesses (which Pepperstone has also refused to produce or rescheduled since the beginning of
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`this case under the now-bad-faith guise of producing their documents). Furthermore, Das needs
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`extra time to conduct discovery into Pepperstone’s evidence destruction,
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`including written
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`discovery and deposition testimony. Lastly, Das needs time to designate an expert given
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`Pepperstone’s new document production, and the implications those documents have for Das’s
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`damages model.
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`4.
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`Thus, Das now asksfor a continuanceofthetrial setting of no fewer than 120 days.
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`Das also asks the Court to reopen the fact and expert discovery period for no fewer than 90 days.
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`PLAINTIFF’S MOTION FOR CONTINUANCEOF TRIAL
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`PAGE 2
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`

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`II.
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`STANDARD FOR A CONTINUANCE
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`5.
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`Texas Rule of Civil Procedure 251 requires applications for continuances to give
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`“sufficient cause supported by affidavit.” TEX. R. Civ. P. 251.
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`6.
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`Rule 193.6 states that when a party has untimely supplemented a discovery
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`response, the Court may grant a continuanceto allow the other party time to respondor“‘to conduct
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`discovery regarding any new information presented by that response.” Jd. 193.6(c).
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`7.
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`Granting or denying a continuance rests within the Court’s sound discretion.
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`Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex. 1963). In exercising this discretion, a “court
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`may consider the entire procedural history of the case.” Caddell v. Caddell, 597 S.W.3d 10, 14
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`(Tex. App.—Houston [14th Dist.] 2020, no pet.).
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`IV.
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`ARGUMENT
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`8.
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`For two years now, Pepperstone has denied Dashis right to obtain discovery. That
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`is why, despite Das’s dogged persistence in obtaining discovery,he haslittle to show for it. Only
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`this past Friday, April 15, 2022, did Pepperstone finally produce the documents Das asked for in
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`March, 2020. It only took Das’s requests for production, a motion to compel, Pepperstone’s failed
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`mandamuspetition, Pepperstone’s disobeying this Court’s order for nearly a month, and Das’s
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`filing a motion for show cause, sanctions, and contempt
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`to get Pepperstone to produce
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`documents—finally, at least some (but notall...'!) documents havearrived.
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`9.
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`Whyit took Pepperstone over two years to produce these documents is a great
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`question—andone Dasintends to ask Pepperstone. Although, it appears that Pepperstoneis trying
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`
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`' To be clear, Defendantis still not in compliance with the Court’s March 15, 2022 order compellingtheir
`production in several ways. For instance, Defendant has refused to specify the date which Das’s email inbox was
`deleted as the Court ordered, and has thousands of pages of production in an unreadable hardcopy formatat its
`office which it still has not produced under a dubious claim of “commercially sensitive” despite a Protective Order
`being in place in this case. Those documents were required to be produced in electronic, native format, and arestill
`being withheld.
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`PLAINTIFF’S MOTION FOR CONTINUANCEOF TRIAL
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`PAGE3
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`to “surprise” Das with evidence on the eve oftrial—evidence that Pepperstone could have easily
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`produced all along. This alone is a sufficient cause for resetting the trial. TEX. R. Civ. P. 193.6
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`(stating that “the court may grant a continuance” when a partyfails to timely produce discovery
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`so that the opposing party has an opportunity “to conduct discovery regarding any new
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`information presented by that response’’).
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`10.
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`Das intends to asks Pepperstone about the contents of those documents now that
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`Das’s counsel finally has the opportunity to review them. Das also intends to ask Pepperstone
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`whyit took over two years to tell him what he suspected all along—that Pepperstone destroyed
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`Das’s entire email inbox. Das also intends to ask Pepperstone about the circumstances of that
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`destruction of evidence—when,how,and why did Pepperstone delete Das’s email inbox? In short,
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`Das has many questions for Pepperstone—all of which could not have been asked previously
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`because Pepperstone had refused to comply with discovery until now. Andall of which are
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`material to his case andcritical in proving his damages. Das’s questions will also further illuminate
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`Pepperstone’s discovery abuses and will inform the Court how to best proceed with sanctions.
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`11.
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`But to ask these questions—i.e., to let Das conduct the written discovery and
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`depositions Pepperstone should have afforded him 2 years ago—Daswill need a continuance of
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`the trial and an extension of the discovery deadline. Jury Trial is currently set for June 14, 2022.
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`The discovery window has already closed. To give Das ample time to depose Pepperstone’s
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`witnesses,
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`issue supplemental written discovery, prepare dispositive motions, and designate
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`expert(s), Das requests a trial continuance of no fewer than 120 days and an extension ofthe fact
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`and expert discovery deadlines of no fewer than 90 days.
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`PLAINTIFF’S MOTION FOR CONTINUANCEOF TRIAL
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`PAGE 4
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`12.
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`In support of this request, Das attaches an affidavit outlining why he needs
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`testimony from Pepperstone’s witnesses and why the answers to his questions are material to his
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`lawsuit, as well as why this evidence could not have been previously obtained.
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`13.
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`This continuance is sought so that justice may be done, and not for purposes of
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`delay.
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`Vv.
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`PRAYER
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`Forall these reasons, Plaintiff, Shankar Das requests that this Court grant Plaintiffs Motion
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`for Continuance of Trial, thereby extending trial for at least 120 days and the fact and expert
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`discovery deadlines for at least 90 days, and that the Court grant such other and furtherrelief that
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`may be awardedat law orin equity.
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`Respectfully submitted,
`
`
`/s/ Kush Patel
`
`Kush Patel
`
`State Bar No. 24110869
`patel@kush.law
`Kush.Law
`P.O. Box 631247
`Irving, Texas 75063
`Phone: 972.974.5094
`
`
`/s/ Michael A. Holmes
`Michael A. Holmes
`State Bar No. 24083191
`Michael@HolmesLG.com
`Holmes Law Group, PLLC
`P.O. Box 38282
`Dallas, Texas 75238
`Phone: 214.444.9533
`ATTORNEYSFOR PLAINTIFF
`SHANKAR PRASAD DAS
`
`PLAINTIFF’S MOTION FOR CONTINUANCEOF TRIAL
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`PAGE 5
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`

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`CERTIFICATE OF SERVICE
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`I certify that on April 18, 2022 a true and correct copy of the above-described document
`wasserved via eFile on all counsel of record for this case.
`
`/s/ Kush Patel
`Kush Patel
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`CERTIFICATE OF CONFERENCE
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`The undersigned counsel reached out to Pepperstone’s counsel to confer on the relief
`sought herein. Counsel for Pepperstone has not yet been able to reach his client to determine if
`his client is opposed or unopposed andstates that he needs at least 48 hours to confer. Should
`Pepperstone respond to this conferral request before the hearing date, counsel will amend this
`motion to reflect whether Pepperstone is opposed or unopposed.
`
`/s/ Kush Patel
`Kush Patel
`
`PLAINTIFF’S MOTION FOR CONTINUANCEOF TRIAL
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`PAGE 6
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`

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`EXHIBIT A
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`

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`CAUSE NO. DC-19-09573
`
`SHANKAR PRASAD DAS,
`
`Plaintiff,
`
`V.
`
`PEPPERSTONE GROUP LIMITED
`
`Defendant.
`
`COR022UGUO)SOPCO?2WO?
`
`IN THE DISTRICT COURT OF
`
`DALLAS COUNTY, TEXAS
`
`101ST JUDICIAL DISTRICT
`
`DECLARATION OF KUSH PATEL
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`As permitted by Civil Practice and Remedies Code section 132.001,
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`the following
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`declaration is madein lieu of an affidavit.
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`“My name is Kush Chuni Sunder Patel, my date of birth is May 24, 1993, and my address
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`is 2302 Pistachio Drive, Irving, Texas, 75063, United States of America.
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`I declare under penalty
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`of perjury that the foregoing is true and correct. Executed in Dallas County, State of Texas, on the
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`18th day of April, 2022.
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`1.
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`Iam one of the attorneys for Plaintiff Shankar Prasad Das.
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`2. The additional discovery sought in this case is in response to documents which
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`Defendant produced on April 15, 2022.
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`3. The discovery produced on April 15 wasoriginally requested via Das’s Requests for
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`Production, Requests for Admission, and Requests for Disclosure sent to Pepperstone
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`on July 6, 2020. Thus, Plaintiff has not been afforded an opportunity to review this
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`critical information, or seek further discovery or expert opinion on this information, as
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`Pepperstone refused to comply with discovery for 2 years.
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`4. This discovery had been sought multiple times after not being produced on August5,
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`2020:
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`first via our Requests for Production,
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`then in several
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`letters detailing
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`DECLARATION OF KUSH PATEL
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`PAGE 1
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`Pepperstone’s inadequate discovery response on August 19, 2020, and on May 20,
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`2021, and then eventually in Plaintiffs First Emergency Motion to Compel
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`Compliance with Rule 11 Discovery Deadlines. Plaintiff has exercised diligence in
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`obtaining this discovery, but Defendant refused to comply, and has refused to comply
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`with this Court’s and the Court of Appeal’s orders.
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`5. Plaintiff's requests in each of these letters and motion concerned the Defendant’s
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`inadequate response, outlines the documents sought, and an explanation for the
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`destruction of certain documents.
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`6. Defendant has refused to provide documents, refused to provide the documents in
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`electronic, native format in compliance with the Texas Rules of Civil Procedure, and/or
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`has not complied with Court Orders to produce those documents in a timely manner.
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`7. The discovery requested also includes depositions of certain Defendant witnesses
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`(owner and corporate representative) which have not been conducted yet due to
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`Defendant’s conduct. Plaintiff and Defendant agreed to conduct depositions multiple
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`times in August 2020, October 2020, March 2021, April 2021, May 2021, July 2021,
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`and August 2021 via Zoom, and those depositions were noticed, but then Pepperstone
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`canceled those depositions and/or requested to reschedule them. Pepperstone induced
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`Plaintiff into rescheduling those depositions with the promise of producing all
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`documents it was supposed to produce if Plaintiff would agree to reschedule.
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`Pepperstone then changed course, and refused to provide deposition dates until an
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`unspecified date in 2022 when the Australia lockdown waslifted—despite the fact that
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`Australia had been in lockdown on all previous deposition dates Pepperstone had
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`provided.
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`DECLARATION OF KUSH PATEL
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`PAGE 2
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`8. The discovery sought is material and critical to the case as it relates to Defendant’s
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`businessactivities in the United States, the Plaintiff’s role in said activities, the clients
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`he onboarded onto the Defendant’s trading platform, and the value he generated for the
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`Defendant.
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`9. This continuance is sought so that justice may be done, and not for purposesofdelay.
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`/s/ Kush Patel
`KUSH PATEL
`
`DECLARATION OF KUSH PATEL
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`PAGE 3
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`Automated Certificate of eService
`This automated certificate of service was created by the efiling system.
`The filer served this document via email generated by the efiling system
`on the date and to the personslisted below. The rules governing
`certificates of service have not changed. Filers muststill provide a
`certificate of service that complies with all applicable rules.
`
`Trevor Martin on behalf of Trevor Martin
`Bar No. 24109512
`Trevor@HolmesLG.com
`Envelope ID: 63659099
`Status as of 4/19/2022 9:25 AM CST
`
`Associated Case Party: SHANKARPRASADDAS
`
`Shankar PrasadDas S|SENT
`
`Kush Patel [sean[arama[se
`ca
`erin|[ranomAORNST[SENT
`fsweceor[feeraietsonaaaSF[ET
`
`Associated Case Party: PEPPERSTONE GROUP LIMITED
`
`
`
`cschneider@meginnislaw.com|4/18/2022 3:59:18 PM|SENT fMarialslasfT mislas@pamlaw.com
`
`Ashley Parrish P| aparrish@mceginnislaw.com|4/18/2022 3:59:18 PM|SENT
`JamesPhillips po jphillips@mcginnislaw.com|4/18/2022 3:59:18 PM|SENT
`Ikirner@mcginnislaw.com|4/18/2022 3:59:18 PM|SENT
`
`Case Contacts
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`JEFFREY RSANDBERG 4/18/2022 3:59:18 PM|SENTjsandberg@pamlaw.com
`
`
`4/18/2022 3:59:18 PM|SENT
`
`Rosalinda Hernandez
`rhernandez@mcginnislaw.com|4/18/2022 3:59:18 PM|SENT
`
`Charmaine Schneider
`
`inni
`
`