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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO

______________________________________

MELODY JOY CANTU AND DR. RODRIGO 

CANTU,

Plaintiffs,

v.

DR. SANDRA GUERRA and DIGITAL 

FORENSICS CORPORATION, LLC,

Defendants.

5:20-CV-0746 JKP – HJB

______________________________________

PLAINTIFFS’ REPLY TO DEFENDNATS’ RESPONSE IN 

OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO FILE 

SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT AND 

REQUEST FOR SANCTIONS AGAINST PLAINTIFFS

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Table of Contents

1. Plaintiffs Satisfy the Four-Factor Test for “Good Cause” Requirement Under Rule 16(b) .... 4

a. Defendant DFC’s Belatedly Produced, Complex, Malicious Computer Codes Total 117 

Pages and Required Analysis by Plaintiffs.................................................................................. 5

b. The Amended Motion for Summary Judgment is Integral to Justice .................................. 7

c. Granting Plaintiffs’ Motion for Leave Would Not Prejudice Defendants............................ 9

d. The Availability of Continuance is a Neutral Consideration ............................................... 9

2. Defendants’ Motion for Sanctions is Frivolous and Without Merit ...................................... 10

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Introduction

Courts in this District routinely grant motions under Federal Rule of Civil Procedure 

16(b)(4) for leave to file without requiring a 16(b)(4) analysis when the grounds are clear.

1 Here, 

Plaintiffs’ justification for seeking leave of court to file an amended or supplemental motion for 

summary judgment is clear:

(1) Defendants’ late and incomplete disclosure of 117 pages of incriminating malicious 

computer code required Plaintiffs to carefully analyze the code. Once Plaintiffs had a full 

understanding of the extent to which Defendants hacked and surveilled Plaintiffs, the 

Motion for Leave was appropriately filed.

(2) It is in the interests of justice for this Court to grant Plaintiffs’ Motion for Leave. The 

belatedly produced discovery implicates Defendants and shows that the scope of 

Defendants’ campaign of stalking, hacking, surveillance and harassment as extensive as 

Plaintiffs asserted in the Complaint.

(3) There is no prejudice to the Defendants because the Court has yet to rule on any 

outstanding summary judgment motions. Moreover, the Defendants are the ones who 

belatedly produced the voluminous, complex computer codes (that Plaintiffs requested in 

their initial discovery requests) thereby requiring this supplemental motion for summary 

judgment.

(4) No continuance is required here. There is no trial nor any hearing currently scheduled.

1 See Mallory v. Lease Supervisors, LLC, Civil Action No. 3:17-CV-3063-D, at 4-5 (N.D. Tex. July 19, 2019) citing

Nieves v. John Bean Techs. Corp., 2014 WL 2587577, at 2 (N.D. Tex. June 10, 2014); Cartier v. Egana of Switz. 

(Am.) Corp., 2009 WL 614820, at 2 (N.D. Tex. Mar. 11, 2009).

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Argument

Defendants did not produce their malicious computer codes until November 11, 2022. 

This is seven days after Plaintiffs filed their Reply to Defendants’ Opposition to Plaintiff’s 

Motion for Summary Judgment. Defendants only produced the malicious computer codes in 

question after briefing on the original summary judgment motions closed.2 On November 14, 

2022, Defendants, after production of their malicious computer codes, filed their own Motion for 

Leave to File Sur-Reply to Plaintiff’s Motion for Summary Judgment, that contained 17 

exhibits.

3 The Court has yet to rule on Defendant’s Motion for Leave.

1. Plaintiffs Satisfy the Four-Factor Test for “Good Cause” Requirement Under Rule 

16(b)

The malicious computer codes belatedly produced by Defendants go directly to the heart 

of this case and should have been produced in response to Plaintiffs’ discovery requests at the 

beginning of this case.4 They demonstrate the malicious nature of Defendants’ hacking and 

surveillance of Plaintiffs, all in the course of Defendant Dr. Guerra’s campaign of harassment 

against Plaintiffs.

The good cause standard under Federal Rule of Civil Procedure 16(b) requires the “party 

seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the 

party needing the extension.”

5 Under Rule 16(b)(4), a scheduling order deadline “may be 

modified only for good cause and with the judge’s consent.” The movant must show that, despite 

2 See Dkt. 118 (Nov. 4, 2022).

3 See Dkt. 119 (Nov. 14, 2022).

4 See Dkt. 120-1 (Ex. A – Filed Under Seal).

5 Fed. R. Civ. P. 16(b)(3)(A).

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their diligence, they could not reasonably have met the scheduling deadline. Here, the malicious 

computer codes were produced after the deadline for summary judgment motions.6

The good cause standard under Rule 16(b) is a flexible one, and courts will consider the 

totality of the circumstances when deciding whether to grant leave to amend. Under Rule 16(b), 

a party must satisfy a four-part test: (1) provide an explanation for the failure to timely move for 

leave to amend; (2) demonstrate the importance of the amendment; (3) address potential 

prejudice in allowing the amendment; and (4) show the availability of a continuance to cure such 

prejudice.7

Once it is established that the movant satisfies the requirements of Rule 16(b)(4), the 

court must then determine whether to grant leave to amend under the more liberal standard of 

Rule 15(a)(2).8

Plaintiffs meet each of the four requirements. Moreover, the interests of justice require an 

analysis on the totality of the circumstances because the belatedly produced malicious computer 

codes establish Defendants’ illegal and unlawful hacking and surveilling of Plaintiffs’ computer 

networks. This is precisely why they waited to produce them until after the deadlines for filing 

summary judgment motions had passed.

a. Defendant DFC’s Belatedly Produced, Complex, Malicious Computer Codes

Total 117 Pages and Required Analysis by Plaintiffs

The 117 pages of malicious computer codes encompass a variety of different computer 

codes that interact with other computer codes Defendants have failed to produce. This is despite 

6 See Swanston v. City of Plano, Civil Action No. 4:19-CV-412 (E.D. Tex. Apr. 27, 2020).

7 See S&W Enters., LLC, 315 F.3d at 536 (citing Reliance In

s. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257 (5th Cir.1997) (quoting Geiserman v. MacDonald, 893 F.2d 

787, 791 (5th Cir.1990)); see also Batiste v. Lewis, 976 F.3d 493, 500-01 (5th Cir. 2020).

8 See Nunn v. State Farm Mutual Automobile Insurance Co., Civil Action No. 3:08-CV-1486-D (N.D. Tex. Jan. 26, 

2011).

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repeated requests for all relevant computer codes by the Plaintiffs since the inception of 

discovery in this case. 

The first factor requires the party seeking leave to amend to explain why they were 

unable to meet the scheduling order deadline. Simply put, the evidence in question wasn’t 

produced until after the scheduling deadline. No diligence on the part of Plaintiffs would have 

prevented this belated production. Particularly given that Plaintiffs repeatedly requested 

production of all the relevant computer codes from the Defendants. 

Courts generally look for evidence of diligence on the part of the movant. No amount of 

diligence on Plaintiffs’ part would have changed things here. The Court’s Joint Advisory set the 

final day of discovery for after the deadlines for summary judgment motions.9 Leave to amend or 

supplement is implicit when final production deadlines for discovery are set for a date after the 

deadlines for filing any summary judgment motions. Otherwise, parties could game the system,

as happened here, by waiting for the deadlines for summary judgment to pass before producing 

critical discovery.

Since day one, Plaintiffs repeatedly requested all computer codes related to the hacking 

and surveilling of Plaintiffs. Yet Defendants only produced the incriminating code on the last 

possible day under the Joint Advisory. Their claims that their 117 pages of computer code central 

to Plaintiffs’ complaint were somehow not requested at the inception of this litigation are not 

credible. They refused to provide Plaintiffs with any corroborating evidence, repeatedly 

incorrectly claiming in their discovery response that “information was not previously requested 

9 See Dkt. 116.

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from DFC by Plaintiffs and is, thus, outside the scope of the Joint Advisory”.

10 Plaintiffs 

repeatedly requested all documentation of Defendants’ hacking and surveillance of Plaintiffs

from the beginning of this case. Defendants simply refused to produce it until the last possible 

moment, after the deadline for summary judgment motions.

11 The belatedly produced discovery 

is not ancillary, it goes directly to the core accusation of the complaint that Dr. Guerra and DFC 

maliciously hacked and surveilled Plaintiffs. The 117 pages of malicious computer code is direct 

evidence of this.

Analysis of the incriminating computer code was tedious and technical. Moreover, the 

incriminating computer code produced by Defendants is incomplete. As of this date, Defendants 

have yet to produce the full set of computer codes involved in this matter. Once Defendants 

finally produced the incriminating computer code - a small portion of the requested materials -

they chose to produce the raw data flattened onto a PDF and not in the requested native format.

This increased the amount of time necessary to analyze the belatedly produced malicious codes. 

The incriminating codes corroborate the Plaintiffs’ claims against Defendants that the 

Defendants maliciously hacked and surveilled Plaintiffs in a campaign of harassment utilizing 

malicious phishing and remote access scripts.

b. The Amended Motion for Summary Judgment is Integral to Justice

The belatedly produced computer codes establish the Defendants’ unlawful and illegal 

conduct. Plaintiffs were not aware of the extent to which their computer systems were hacked 

and infiltrated by Defendants in their campaign of harassment until the incriminating codes were

finally produced. Further, the incriminating codes raise more questions than it answers as the 

10 See Dkt. 120-1 (Defendant DFC’s belated Discovery response containing incriminating computer code evidencing 

Defendants’ phishing, hacking, surveilling, and remote access of Plaintiffs’ computer systems).

11 See e.g. Dkt. 103 (Plaintiff’s Motion to Compel detailing Defendants’ failure to produce requested computer 

codes.) (Aug. 29, 2022).

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codes indicate that there is further, yet to be disclosed, computer codes which interacted with the 

scripts produced to manipulate Plaintiffs’ computer networks and trick them into giving 

Defendants remote access to Plaintiffs’ systems.

In TIGI Linea Corporation v. Professional Products Group, the court held that a proposed 

amendment was important and that analysis of the second factor weighed in favor of Plaintiff 

TIGI because a new cause of action, fraud by nondisclosure, had the potential to establish the 

Defendant’s liability under an alternative theory. 12 Similarly, the court in R2 Sols. V. Deezer S.A. 

found that an amendment is important when it is vital to the survival of the litigation.13 A 

proposed amendment is futile “if it would fail to state a claim upon which relief could be 

granted.”14

Here, Defendants’ belatedly produced malicious computer codes establish Defendants’ 

liability for the complained of causes of action. No alternative theory of liability is required. This 

is precisely why Defendants waited until the last possible second to produce the malicious codes. 

This Court should not allow the Defendants to play games with their discovery obligations to 

produce core evidence of their unlawful behavior going directly to Plaintiffs’ causes of action. 

The sought after leave to supplement seeks to remedy Defendants’ prejudicial and belated 

production of discovery central to this case.

12 TIGI Linea Corp. v. Prof'l Prods. Grp., LEAD CASE 4:19-cv-00840-RWS-KPJ, at 6 (E.D. Tex. Apr. 6, 2021); 

see also Rangel v. Gonzalez Mascorro, No. CV L-10-103, 2011 WL 13353220, at *3 (S.D. Tex. Aug. 19, 2011) 

(finding defendants' liability under an alternative theory weighs in favor of finding good cause).

13 See R2 Sols. v. Deezer S.A., Civil Action 4:21-cv-90, at 1 (E.D. Tex. Mar. 4, 2022).

14 See Id. citing Raytheon Co. v. Indigo Sys. Corp., No. 4:07-cv-109, 2008 WL 3852715, at 3 (E.D. Tex. Aug. 14, 

2008).

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c. Granting Plaintiffs’ Motion for Leave Would Not Prejudice Defendants

If anything, Defendants have prejudice Plaintiffs by their belated production of their 

malicious computer codes after the deadlines for summary judgment motions had closed.

Moreover, currently there is no scheduling order, hearing dates, or trial scheduled in this case. 

The Court has decided none of the outstanding summary judgment motions and can easily 

incorporate Plaintiffs’ Supplemental Motion for Summary Judgment into its considerations.

Grating leave to supplement will not disrupt this litigation nor disadvantage any party. 

Indeed, not allowing leave for Plaintiffs to supplement will disadvantage the Plaintiffs because 

they will be unable to avail themselves of belatedly produced discovery central to their causes of 

action that should have been produced at the beginning of this case.

On January 14, 2022, Plaintiffs served discovery requests upon Defendants. These 

requests encompassed the malicious computer codes in question. Defendants cannot now 

complain that Plaintiffs leave to supplement is untimely when they themselves waited eleven

months to produce evidence central to the issues in this case. This situation is entirely one of the 

Defendants own making. Moreover, the Court has yet to rule on any of the summary judgment 

motions filed last fall, and can easily take into consideration Plaintiffs’ Supplemental Summary 

Judgment Motion incorporating Defendants belatedly produced malicious computer codes that 

are direct evidence of their hacking, surveillance and harassment of Plaintiffs.

d. The Availability of Continuance is a Neutral Consideration

Here, the Court’s acceptance of Plaintiffs’ amended Motion for Summary Judgment 

would not significantly delay the proceedings, as there is nothing scheduled on the current 

docket. The fourth factor requires the movant to show that a continuance is available to cure any 

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prejudice that might arise from the amendment. Here, the amendment would not significantly 

delay the proceedings.

Courts in this Circuit have been amenable to granting leave when “granting leave to 

amend would not inevitably delay trial or any other deadline.”

15 Here, as in R2, the availability 

of a continuance in this case is a neutral consideration. There are no hearing dates, no additional

discovery dates, and no trial dates currently scheduled in this case.

2. Defendants’ Motion for Sanctions is Frivolous and Without Merit

Here, none of the factors warranting sanctions exist. Plaintiffs’ Counsel has not acted in 

bad faith, nor acted with vexatious or wanton behavior, nor abused the legal system, nor 

unreasonably multiplied proceedings. It is entirely appropriate to seek leave of a court to file a

supplemental motion for summary judgment when new, complex, incriminating evidence is 

revealed in a civil lawsuit, as is the case here. It is further appropriate to cite to publicly 

accessible court documents evidencing the misrepresentations by a Defendant. None of Defense 

Counsel’s conduct is sanctionable.

Courts consider a variety of factors when imposing sanctions, including the nature of the 

alleged violation, the parties involved, and the specific circumstances of the case. Sanctions may 

be awarded for bad faith conduct, for vexatious or wanton behavior, for abusing the legal system, 

or for unreasonably multiplying proceedings. In Mission Specialty Pharmacy, LLC v. Optumrx, 

Inc., the court emphasized that sanctions should be "tailored to fit the particular wrong" and 

should "foster the appropriate purpose of the rule."16 In Alvarez v. Wallace, the court discussed 

the standard for awarding attorney's fees as a sanction under Rule 37(a)(4) of the Federal Rules 

of Civil Procedure, which requires the court to consider whether the opposing party's conduct 

15 R2 Sols. v. Deezer S.A., Civil Action 4:21-cv-90, at 1 (E.D. Tex. Mar. 4, 2022).

16 Mission Specialty Pharmacy, LLC v. Optumrx, Inc., NO. SA-15-CV-885-DAE (W.D. Tex. Dec. 30, 2015).

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was "substantially justified" or whether "other circumstances make an award of expenses 

unjust."17

This is the third time that Defense Counsel has filed a frivolous motion for sanctions 

against Plaintiffs’ Counsel.

18 The Court should deny this one as well.

Conclusion

This Court should grant Plaintiffs’ Motion for Leave to File a Supplemental Motion for 

Summary Judgment and deny Defendants’ frivolous sanctions motion.

17 Alvarez v. Wallace, 107 F.R.D. 658 (W.D. Tex. 1985).

18 See Dkt. 72, 73, 111, and 121.

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Dated: July 31, 2023

Brooklyn, NY

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Certificate of Service

I certify that on this 31st of July 2023, a true and correct copy of the foregoing was 

electronically filed with the Clerk of the Court using the CM/ECF system which will send 

electronic notification of such filing to the parties on record.

/s/ Michael Hassard

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