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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

MELODY JOY CANTU and

DR. RODRIGO CANTU, 

Plaintiffs 

V.

DR. SANDRA GUERRA and

DIGITAL FORENSICS 

CORPORATION, LLC

Defendants

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CASE NO.: 5:20-CV-00746-JKP (HJB)

DEFENDANT, DR. SANDRA GUERRA’S MOTION TO COMPEL 

PLAINTIFFS’ RESPONSES TO WRITTEN DISCOVERY 

AND REQUEST FOR SANCTIONS

TO THE HONORABLE UNITED STATES DISTRICT COURT:

NOW COMES Defendant, DR. SANDRA GUERRA (“Defendant” and “Dr. Guerra”), 

and, in accordance with the Court’s Order [Doc. 98] and the Fed. R. Civ. P. 37, files this her Motion 

to Compel Plaintiffs’ Responses to Written Discovery and Request for Sanctions, and, in support 

thereof, respectfully shows unto the Court as follows:

I. Background. 

1. Plaintiffs have asserted an affirmative claim against Dr. Guerra and co-defendant, 

Digital Forensics Corporation, LLC (“DFC”), for the recovery of attorneys’ fees.1

 Plaintiffs also 

seek to recover damages from Dr. Guerra and DFC in the amount of “approximately $50,000” for 

“fees, taxes, and penalties” Plaintiffs claim they incurred “for withdrawing money from their 

1 Plaintiffs’ First Amended Complaint [Doc. 6], “Prayer for Relief,” (d).

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retirement funds in order to pay attorney’s fees.”2

2. Dr. Guerra served her First Requests for Production to Plaintiff, Melody Joy Cantu, 

on June 15, 2022 and First Requests for Production to Plaintiff, Dr. Rodrigo Cantu, on June 24, 

2022 requesting, among other documents, a copy of all written engagement agreements between 

Plaintiffs and the attorneys/law firms representing them in this lawsuit and copies of all fee 

statements and/or invoices evidencing the attorneys’ fees, expenses, and costs Plaintiffs seek to 

recover from Defendants. Plaintiff, Melody Joy Cantu, and Plaintiff, Dr. Rodrigo Cantu served 

their respective objections and responses to such requests for production on July 15, 2022 and July 

25, 2022, respectively, but failed to produce the aforementioned documents.3

3. Plaintiffs also identified 11 individuals in Plaintiffs’ Initial Disclosures as 

“witnesses” likely to have discoverable information.4

 Dr. Guerra served her Second Requests for 

Production to Plaintiff, Melody Joy Cantu, and First Requests for Production to Plaintiff, Dr. 

Rodrigo Cantu, on June 24, 2022 requesting, among other documents, all written communications 

between Plaintiffs and these 11 non-parties. Plaintiffs served their respective objections and 

responses to such requests for production on July 25, 2022 but failed to produce the 

aforementioned documents.5

4. Counsel for Dr. Guerra has attempted to confer with counsel for Plaintiffs, but the 

parties were unable to resolve this discovery dispute.6

2 Exhibit 1, Plaintiffs’ Initial Disclosures Pursuant to Rule 26(a)(1) of the Federal Rules of Civil 

Procedure (Plaintiffs’ Initial Disclosures”), p. 8. 

3 Exhibit 2, Plaintiff, Melody Joy Cantu’s Objections and Responses to Dr. Guerra’s First Requests 

for Production. 

4

 Exhibit 1, pp. 1-2. 

5

 Exhibit 3, Plaintiff, Melody Joy Cantu’s Objections and Responses to Dr. Guerra’s Second 

Requests for Production; Exhibit 4, Plaintiff, Dr. Rodrigo Cantu’s Objections and Responses to 

Dr. Guerra’s Second Requests for Production. 

6

 Exhibit 5 and Exhibit 6. 

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II. Argument and Authorities. 

5. Rule 26(b)(1) provides as follows: 

Unless otherwise limited by court order, the scope of discovery is as follows: 

Parties may obtain discovery regarding any nonprivileged matter that is relevant to 

any party's claim or defense and proportional to the needs of the case, considering 

the importance of the issues at stake in the action, the amount in controversy, the 

parties’ relative access to relevant information, the parties’ resources, the 

importance of the discovery in resolving the issues, and whether the burden or 

expense of the proposed discovery outweighs its likely benefit. Information within 

this scope of discovery need not be admissible in evidence to be discoverable.7

6. [The Fifth Circuit] recognizes broad and liberal treatment of the federal discovery

rules. U.S. v. Holley, 942 F.2d 916, 924 (5th Cir. 1991). The Court should grant Dr. Guerra’s 

Motion and assess sanctions against Plaintiffs and/or Plaintiffs’ counsel pursuant to Fed. R. Civ. 

P. 37(a)(5) for the following reasons:

A. REQUESTS FOR PRODUCTION OF PLAINTIFFS’ ENGAGEMENT AGREEMENTS AND 

ATTORNEYS’ FEE STATEMENTS/INVOICES. 

7. Plaintiff, Melody Joy Cantu, objected as follows to Dr. Guerra’s following requests 

for production and Plaintiff, Dr. Rodrigo Cantu, asserted the same objections to the same requests 

for production propounded by Dr. Guerra:8

7

 Fed. R. Civ. P. 26(b)(1). 

8

 Exhibit 2, RFP No. 16-17; Exhibit 4, RFP Nos. 33-34.

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8. “In an instance in which the privilege is being used as a sword rather than a shield, 

the privilege may be waived.”9 Here, Plaintiffs have asserted an affirmative claim against Dr. 

Guerra and DFC for the recovery of attorneys’ fees.10 Plaintiffs also seek to recover damages from 

Dr. Guerra and DFC in the amount of “approximately $50,000” for “fees, taxes, and penalties” 

Plaintiffs claim they incurred “for withdrawing money from their retirement funds in order to pay 

attorney’s fees.”11 Therefore, Plaintiffs’ claim for attorneys’ fees and damages puts Plaintiffs’ 

attorneys’ fees (including, without limitation, whether or not Plaintiffs have any sort of 

contingency fee arrangement with Plaintiffs’ counsel) squarely at issue in this litigation. 

Consequently, Plaintiffs have waived any privilege by offensive use. 

9. Furthermore, Dr. Guerra’s requests for these documents are not premature. This 

case has been pending for over 2 years and the discovery period expires in 17 days on September 

15, 2022.12 

10. Additionally, Dr. Guerra attempted to obtain information concerning Plaintiffs’ 

claims for attorneys’ fees and damages through less obtrusive means by asking Plaintiffs for this 

9 Rep. Ins. Co. v. Davis, 856 S.W.2d 158, 163; see also In re Nat’s Lloyds Inc. Co., 532 S.W.3d 

794, 807 (Tex. 2017) (an opposing party may waive its work-product privilege through offensive 

use).

10 Plaintiffs’ First Amended Complaint [Doc. 6], “Prayer for Relief,” (d).

11 Exhibit 1, p. 8. 

12 Doc. 98.

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information during their depositions. However, Plaintiffs were unable and/or unwilling to answer 

specific questions regarding the amount of attorneys’ fees they have paid or provide any detail 

regarding their fee arrangements with their attorneys. For example, Plaintiff, Melody Joy Cantu 

testified as follows: 

Q.· ·How are you paying your attorneys? 

A.· ·Bank wire.

Q.· ·Do you pay them hourly? 

A.· ·No.

Q.· ·How do your -- how do your attorneys charge you for the services they're 

providing to you, is it hourly – 

MR. EKELAND:· Objection. 

Q.· ·-- or is it a contingency? 

MR. EKELAND:· Objection. 

THE WITNESS:· It's --

MR. EKELAND:· You can answer. 

THE WITNESS:· I -- I have had to refill my retainer multiple times and it is 

not hourly and it is not a contingency. 

Q.· ·(By Ms. Peery) So, they do not charge you by the hour? 

MR. EKELAND:· Objection. 

THE WITNESS:· I -- I don't go through the statements and look.· I see a lot 

of very detailed billing and I trust my attorney, so I pay him. 

Q.· ·(By Ms. Peery) I'm trying to -- you've made a claim for attorneys' fees in this 

case and I'm trying to understand the basis for that claim. 

A.· ·It's a lot.

Q.· ·Do you pay your -- your attorney -- is your arrangement with your attorney to 

pay him a flat fee or does he charge by the hour? 

MR. EKELAND:· Objection.· You can answer.

THE WITNESS:· It is not a flat fee.

Q.· ·(By Ms. Peery) Okay.· So, he charges by the hour? 

MR. EKELAND:· Objection. 

THE WITNESS:· I don't know his billing.

Q.· ·(By Ms. Peery) Okay.· But, ma'am, you did sign an Engagement Agreement, 

did you not? 

MR. EKELAND:· Objection. 

THE WITNESS:· I did.· I signed it three years ago and I don't remember what 

it says. 

Q.· ·(By Ms. Peery) How much does your attorney charge an hour? 

MR. EKELAND:· Objection. 

THE WITNESS:· I don't -- I don't remember.13

13 Exhibit 7, 29:4-30:22. 

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11. Dr. Cantu also testified that he could not recall the amounts he and Mrs. Cantu paid 

for their attorneys’ fees. In fact, he referred counsel for Dr. Guerra to the very documents which 

Plaintiffs now refuse to produce:

THE WITNESS:· I think we talked about this or my wife talked about it 

before.· We have an agreement, it's not a contingency.· I think initially we

were paying hourly and now we have an agreement for his representation 

through the rest of our case.

Q.· ·(By Ms. Peery) Okay.· And what's that agreement?

MR. EKELAND:· Objection. 

THE WITNESS:· That he will represent us for the rest of the case.

Q.· ·(By Ms. Peery) Okay.· That he'll represent you for the rest of the case, and 

what -- what are you paying him to represent you for the rest of the case? 

MR. EKELAND:· Objection. 

THE WITNESS:· We're paying him American dollars. 

 Q.· ·(By Ms. Peery) Are you paying him on an hourly basis or a flat fee?

MR. EKELAND:· Objection.· You can answer, if you can. 

THE WITNESS:· We had a flat fee and there are other expenses that we pay 

to him.

Q.· ·(By Ms. Peery) How much is the flat fee?

MR. EKELAND:· Objection. 

THE WITNESS:· I don't recall.

Q.· ·(By Ms. Peery) Would that be contained in your Engagement Agreement?

A.· ·Yes.· Or we had a -- I think there was an amended Engagement

Agreement that --

Q.· ·Okay.· So, you signed an Engagement Agreement and then an amended 

Engagement Agreement --

MR. EKELAND:· Objection. 

Q.· ·-- is that correct?

A.· ·Correct.

Q.· ·How much were you paying your attorney, Mr. Ekeland, when you were 

paying him an hourly fee, how much was his hourly fee?

· MR. EKELAND:· Objection.· You can answer.

THE WITNESS:· I don't recall the exact amount. 

Q.· ·(By Ms. Peery) How much is the flat fee?

· MR. EKELAND:· Objection. 

THE WITNESS:· I don't recall the exact amount, but it's in the documents if 

we can -- if we need to pull them up.14

 

14 Exhibit 8, 9:17-11:11. 

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12. Plaintiffs’ counsel never asserted any objection to the foregoing deposition 

questions based upon any purported privilege and never instructed his clients not to answer based 

upon such purported privilege grounds. Thus, Plaintiffs have further waived any objection to the 

production of their engagement agreements with their attorneys and attorneys’ fee statements and

invoices based upon any purported work product or attorney-client privilege. 

13. Plaintiffs evasive answers to the foregoing deposition questions and failure to 

produce the documents responsive to Dr. Guerra’s Request for Production No. 16 and 17 must be 

treated as a failure to disclose, answer or respond under Fed. R. Civ. P. 37(4). Accordingly, Dr. 

Guerra requests that the Court order Plaintiffs to produce documents responsive to such requests 

for production and, pursuant to Fed. R. Civ. P. 37(a)(5), order Plaintiffs and/or Plaintiffs’ counsel 

to pay the reasonable attorneys’ fees incurred by Dr. Guerra in bringing this Motion as result of 

Plaintiffs’ failure to comply with the rules of discovery. 

B. REQUESTS FOR PRODUCTION OF COMMUNICATIONS BETWEEN PLAINTIFFS AND 

NON-PARTIES IDENTIFIED IN PLAINTIFFS’ INITIAL DISCLOSURES. 

14. Rule 26(a)(1)(A)(i) requires Plaintiffs to provide Dr. Guerra with “the name... of 

each individual likely to have discoverable information—along with the subjects of that 

information—that the disclosing may use to support its claims or defenses...” Accordingly, 

Plaintiffs identified the following 11 individuals in Plaintiffs Initial Disclosures as “witnesses” 

likely to have discoverable information.15 

15 Exhibit 1, pp. 1-2. 

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15. Dr. Guerra propounded written discovery to Plaintiffs requesting copies of all 

written communications between Plaintiffs and the foregoing individuals regarding any matter that 

is the subject of this lawsuit.16 However, Plaintiffs objected as follows to the requests for 

production of written communications between Plaintiffs and 8 of the foregoing 11 individuals:17

16 Exhibit 3, RFP Nos. 20-30; Exhibit 4, RFP Nos. 12-22. 

17 Exhibit 3, RFP No. 21, 23, 24, 26-30; Exhibit 4, RFP Nos. 13, 15, 16, 18-22 (all individuals 

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16. However, Plaintiffs’ objection to Dr. Guerra’s requests for production on the 

grounds that such individuals are "no longer a potential witness in this matter” is not a valid 

objection. Plaintiffs’ unilateral decision not to call the individuals identified in Plaintiffs’ Initial 

Disclosures does not dispose of Plaintiffs’ obligation to respond to written discovery regarding 

their communications with these individuals. Plaintiffs, by identifying these individuals in 

Plaintiffs’ Initial Disclosures, cannot refute that these individuals have discoverable information. 

Thus, Plaintiffs’ communications with these individuals are both relevant and discoverable under 

Fed. R. Civ. P. 26(b)(1), and Dr. Guerra has not and does not waive her right to call these 

individuals for deposition or at trial. 

17. Additionally, Plaintiff, Melody Joy Cantu, has objected to the production of all 

written communications between her and Dottie Laster, Jackie Johnston, and Danielle 

Wollervweron on the grounds that such requests for production “seeks information and materials 

constituting Plaintiff’s private and/or confidential information and is irrelevant and not reasonably

calculated to lead to the discovery of admissible evidence.”18 Again, Plaintiffs’ identification of 

these individuals in Plaintiffs’ Initial Disclosures is an admission by Plaintiffs that these 

individuals have discoverable information.19 Additionally, the Court has already entered a 

identified in paragraph 14 of this Motion except Jackie Johnston, Danielle Wollervweron, and 

Dottie Laster)

18 Exhibit 3, RFP No. 20, 22, 25.

19 See Fed. R. Civ. P. 26(a)(1)(A)(i) (“...a party must, without awaiting a discovery request, 

provide to the other parties the name... of each individual likely to have discoverable 

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Confidentiality and Protective Order [Doc. 88], which Plaintiffs opposed.

20 Thus, Melody Joy 

Cantu’s objections to the production of written communications between her and these individuals 

based upon relevance or confidentiality is entirely frivolous and unfounded. 

18. Accordingly, Dr. Guerra requests that the Court order Plaintiffs to produce 

documents responsive to Dr. Guerra’s requests for production of all communications between 

Plaintiffs and the individuals identified in Plaintiffs’ Initial Disclosures, and, pursuant to Fed. R. 

Civ. P. 37(a)(5), order Plaintiffs and/or Plaintiffs’ counsel to pay the reasonable attorneys’ fees 

incurred by Dr. Guerra in bringing this Motion as result of Plaintiffs’ failure to comply with the 

rules of discovery.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant, DR. SANDRA GUERRA,

respectfully prays that this Court, (i) grant Dr. Guerra’s Motion to Compel Plaintiffs’ Responses 

to Written Discovery and Request for Sanctions, (ii) order Plaintiffs and/or Plaintiffs’ counsel, 

pursuant to Fed. R. Civ. P. 37(a)(5), to pay Dr. Guerra $2,500.00 (or $5,000.00 in the event the 

Court holds an oral hearing on this Motion) for the reasonable attorneys’ fees incurred by Dr. 

Guerra as a result of Plaintiffs’ noncompliance with the rules of discovery, and (iii) grant 

Defendant all such other and further relief, both general and special, at law or in equity, to which 

she may be entitled. 

information—along with the subjects of that information—that the disclosing may use to support 

its claims or defenses...” 20 Doc. 78, p. 2.

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Dated: August 29, 2022. Respectfully submitted,

DAVIS, CEDILLO & MENDOZA, INC.

McCombs Plaza, Suite 500 

755 E. Mulberry Avenue 

San Antonio, Texas 78212 

Telephone No.: (210) 822-6666 

Telecopier No.: (210) 822-1151 

 

By: /s/Ricardo G. Cedillo __________ 

 RICARDO G. CEDILLO

 Texas State Bar No. 04043600 

 rcedillo@lawdcm.com

BRANDY C. PEERY

 Texas State Bar No. 24057666 

bpeery@lawdcm.com

ATTORNEYS FOR DEFENDANT, DR. SANDRA 

GUERRA

CERTIFICATE OF SERVICE

I certify that on this 29th day of August 2022, 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/Ricardo G. Cedillo 

RICARDO G. CEDILLO

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