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’ OPPOSITION TO CO-DEFENDANT DR. GUERRA’S 

MOTION TO COMPEL PLAINTIFFS’ RESPONSES TO WRITTEN 

DISCOVERY AND REQUEST FOR SANCTIONS

Case 5:20-cv-00746-JKP-HJB Document 105 Filed 09/06/22 Page 1 of 8
Plaintiffs Dr. David Cantu and Melody Joy Cantu submit this Opposition to CoDefendant Dr. Sandra Guerra’s (“Dr. Guerra”) Motion to Compel Written Discovery and for 

Sanctions. The Court should deny Co-Defendant's motion for the reasons argued below.

First, Defendant’s request for production of Plaintiff Melody Joy Cantu’s engagement 

agreements and attorneys’ fee statements and invoices is premature because Defendant Dr. 

Guerra does not have prevailing party status. Attorney fees as damages on the Complaint’s 

substantive counts aren't at issue yet because no party has prevailed on any claims or 

counterclaims. It is premature to devote resources to the issue before resolution of the 

substantive issues at the heart of this case - Dr. Guerra's hack, along with Co-Defendant Digital 

Forensics Corporation, LLC ("DFC"), of the Cantus, and Dr. Guerra's and DFC's subsequent 

malicious prosecution of Plaintiff Melody Cantu using information and affidavit templates 

obtained from DFC.

Second, Defendant Dr. Guerra’s request for production of communications between 

Plaintiff Melody Joy Cantu and third-parties is dispensable because the communications are nonresponsive. Additionally, on September 15, 2022, as previously ordered by the Court, Plaintiffs 

will be producing a final set of responsive discovery to Co-Defendants and will do its final 

review with Co-Defendant’s requests in mind.

Background

On June 15, 2022, Defendant Dr. Guerra served her First Requests for Production. 

On June 24, 2022, Defendant Dr. Guerra served her Second Request for Production

Case 5:20-cv-00746-JKP-HJB Document 105 Filed 09/06/22 Page 2 of 8
On July 15, 2022, Plaintiff Melody Joy Cantu served her objections and responses to the 

June 15, 2022, requests.

On July 25, 2022, Plaintiff Melody Joy Cantu served her objections and responses to the 

June 24, 2022, requests.

Plaintiff Melody Joy Cantu has repeatedly attempted to confer with counsel for CoDefendants, but the parties were unable to resolve this discovery dispute. 

Defendant Dr. Guerra has repeatedly failed to comply with her discovery obligations, but 

now seeks to enforce frivolous, premature, and unresponsive production from Plaintiff Melody 

Joy Cantu as part of her relentless campaign against Plaintiff Melody Joy Cantu. Co-Defendants

create unduly burdensome and unnecessary work for Plaintiff’s counsel by the filing of their 

Motion to Compel Plaintiffs Responses to Written Discovery and Requests for Sanctions. This 

Court should deny it so we can move to the substantive issues rather than distractions.

Plaintiffs' counsel repeatedly asked Dr. Guerra during her deposition whether she'd 

searched for responsive emails and testified she had searched and found none. The next day CoDefendant Dr. Guerra produced responsive emails. Plaintiffs have chosen not to move for 

sanctions because they prefer to move on to close of discovery and forward to dispositive 

motions and trial.

Argument

Co-Defendant cites no case law supporting its contention that it is entitled to discovery of

Attorneys' Fees before it is a prevailing party. Courts may award attorneys' fees to the prevailing 

Case 5:20-cv-00746-JKP-HJB Document 105 Filed 09/06/22 Page 3 of 8
party, although this is the exception to the norm, known as the American Rule, that parties to a 

litigation bear their own costs.

1 But the issue is premature until there actually is a prevailing 

party.

To be a prevailing party, a plaintiff must 

(1) obtain actual relief, such as an enforceable judgment or a consent decree; 

(2) that materially alters the legal relationship between the parties; and 

(3) modifies the defendant's behavior in a way that directly benefits the plaintiff at the 

time of the judgment or settlement.2

Co-Defendant Dr. Guerra is not a prevailing party because they have no enforceable 

judgment. Were they a prevailing party, they would have the burden under Texas state law to

show the reasonable fees they are owed, either through the lodestar method or the market value 

method.3 There are certain causes of action that require the use of the lodestar calculation.4

Using the lodestar analysis, the computation of a reasonable attorney's fee award is a twostep process.5 First, courts determine the reasonable hours spent by counsel and a reasonable 

1 See Dearmore v. City of Garland, 519 F.3d 517, 519 (5th Cir. 2008); Frew v. Taylor, 688 F. App'x 249, 

251 (5th Cir. 2017).

2 See Dearmore v. City of Garland, 519 F.3d 517, 519 (5th Cir. 2008).

3 See Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002); Natour v. Bank of Am., N.A., Civil Action 

No. 4:21-CV-00331, 2022 U.S. Dist. LEXIS 149165, at *2 (E.D. Tex. Aug. 19, 2022); El Apple I, Ltd. v. Olivas, 

370 S.W.3d 757, 760 (Tex. 2012) (citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)) (applying substantive 

federal law but also discussing Texas's adoption of the lodestar method in other cases); AMX Enters. v. Master 

Realty Corp., 283 S.W.3d 506, 515 (Tex. App.—Fort Worth 2009, no pet.).

4 See City of Laredo v. Montano, 414 S.W.3d 731, 736 (Tex. 2013).

5 El Apple, 370 S.W.3d at 760 (citing Dillard Dep't Stores, Inc. v. Gonzales, 72 S.W.3d 398, 412 (Tex. 

App.—El Paso 2002, pet. denied)).

Case 5:20-cv-00746-JKP-HJB Document 105 Filed 09/06/22 Page 4 of 8
hourly rate, and then multiply the two together to get the base fee or lodestar.6 Second, courts 

adjust the lodestar up or down based on relevant factors, these are referred to as the “Johnson

factors”.7 However, even if the lodestar calculation is not required, if the movant produces 

evidence of the lodestar calculation, courts typically apply the lodestar calculation.8 This is all 

needless work unless they are a prevailing party in this litigation entitled to attorneys fees. This 

case is still in discovery.

Conclusion

This Court should deny Dr. Guerra’s Motion to Compel Plaintiffs Responses to Written 

Discovery and Requests for Sanctions because Defendant Dr. Guerra does not have prevailing 

party status. She has not won, this case is still in discovery. Defendant Dr. Guerra has not 

obtained actual relief, such as an enforceable judgment or a consent decree that materially alters 

the legal relationship between the parties and that modifies the plaintiff’s behavior in a way that 

directly benefits the defendant at the time of the judgment or settlement.

Defendant Dr. Guerra’s request for production of communications between Plaintiff 

Melody Joy Cantu and third-parties requests non-responsive information, and to the extent 

Plaintiffs final discovery review comes across any responsive documents they will be produced 

by the final discovery deadline in this matter on September 15, 2022.

6

Id. (citing Gonzales, 72 S.W.3d at 412).

7

Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974); See also Natour v. Bank of Am., 

N.A., Civil Action No. 4:21-CV-00331, 2022 U.S. Dist. LEXIS 149165, at *2-3 (E.D. Tex. Aug. 19, 2022).

8 Montano, 414 S.W.3d at 736.

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Plaintiff’s counsel further requests that this Court grant Plaintiff Melody Joy Cantu 

reasonable attorney’s fees incurred in responding to this frivolous and unnecessary motion.

Case 5:20-cv-00746-JKP-HJB Document 105 Filed 09/06/22 Page 6 of 8
Dated: September 6, 2022 Submitted,

/s/ Michael Hassard

Michael Hassard

(NY Bar No. 5824768)

Tor Ekeland Law, PLLC

30 Wall Street, 8th Floor

New York, NY 

t: (718) 737 - 7264

f: (718) 504 – 5417

michael@torekeland.com

Tor Ekeland (NY Bar No. 4493631)

Pro Hac Vice

Tor Ekeland Law, PLLC

30 Wall Street, 8th Floor

New York, NY 

t: (718) 737 - 7264

f: (718) 504 - 5417

tor@torekeland.com

Counsel for Plaintiffs Melody Joy Cantu 

and Dr. Rodrigo Cantu

Case 5:20-cv-00746-JKP-HJB Document 105 Filed 09/06/22 Page 7 of 8
Certificate of Service

I certify that on this 6

th day of September 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/ Tor Ekeland

Case 5:20-cv-00746-JKP-HJB Document 105 Filed 09/06/22 Page 8 of 8