1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION

ROBERT (BOB) ROSS,

Plaintiff/Counterclaim

Defendant,

v.

ASSOCIATION OF PROFESSIONAL 

FLIGHT ATTENDANTS, et al., 

Defendants/Counterclaim

Plaintiff.

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§ 

§ 

Civil Action No. 4:22-cv-343-Y 

Judge Terry R. Means

BRIEF IN SUPPORT OF MOTION TO

COMPEL RESPONSE TO SUBPOENA 

ISSUED TO WOODS, STEPHENS AND O’NEIL, L.L.P.

Pursuant to Federal Rules of Civil Procedure 26(b)(1), Fed. R. Civ. P. 34(c), Fed. R. Civ. P. 

45, and Local Rules 5.2, 7.1. 7.2. 53.1, 56.3 and 56.6, COMES NO, Plaintiff, Robert “Bob” Ross 

(“Ross”), and file this, his Motion to Compel Production of Documents in Response to Subpoena 

Issued to Woods, Stephens, and O’Neil, L.L.P. (“Woods, Stephens, and O’Neil”) and in support 

thereof, would respectfully show this Court as follows:

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Table of Contents

SUMMARY................................................................................................................................................ 4

FACTUAL BACKGROUND....................................................................................................................... 4

ARGUMENT .............................................................................................................................................. 7

Undue Burden Objection: ........................................................................................................................ 7

Vague, Ambiguous and Overly-broad Objection:................................................................................... 10

Relevancy Objection:............................................................................................................................. 11

Burdensome or Disproportionate Requests in relation to the Needs of the Case Objection:..................... 12

Accountant-Client Privilege Objection:.................................................................................................. 14

CONCLUSION......................................................................................................................................... 14

CERTIFICATE OF CONFERENCE.......................................................................................................... 16

CERTIFICATE OF SERVICE................................................................................................................... 16

Table of Authorities

Authorities

Am. Fed’n of Musicians of the United States & Canada v. Skodam Films, LLC, 7, 8, 9

 313 F.R.D. 39 (N.D. Tex. 2015)

A-Mark Auction Galleries v. Am. Numismatic Ass'n, 233 F.3d 895 (5th Cir. 2000) 14 

Cantu v. TitleMax, Inc., 5:14-CV-628 (W.D. Tex. Oct. 9, 2015) 14 

Coughlin v. Lee, 946 F.2d 1152 (5th Cir. 1991) 12 

EEOC v. Aerotek, Inc., 815 F.3d 328 (7th Cir. 2016) 10 

EEOC v. Bay Shipbuilding Corp., 668 F.2d 304 (7th Cir. 1981) 12 

EEOC v. Ford Motor Credit Co. , 26 F.3d 44 (6th Cir. 1994) 12 

FTC v. Shaffner, 626 F.2d 32 (7th Cir. 1980) 12 

Isenberg v. Chase Bank USA, N.A., 661 F. Supp. 2d 627 (N.D. Tex. 2009) 7 

Leonard v. Martin, 38 F.4th 481 (5th Cir. 2022) 12, 14

SEC v. Brady, 238 F.R.D. 429 (N.D. Tex. 2006) 8 

United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002) 12 

Walsh v. Alight Solutions LLC, 44 F.4th 716 (7th Cir. 2022) 12 

Williams v. City of Dallas, 178 F.R.D. 103 (N.D. Tex. 1998) 8 

Case 4:22-cv-00343-Y Document 114 Filed 09/05/23 Page 2 of 17 PageID 2340
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Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812 (5th Cir. 2004) 9 

Codes & Statutes 

29 U.S.C. § 411(a)(2) 12 

29 U.S.C. §437 5 

29 U.S.C. § 501 12 

Tex. Occ. Code §901.457 14 

Court Rules

 

Fed. R. Civ. P. 26(b)(1) 1, 8 

Fed. R. Civ. P. 34(c) 1, 8 

Fed. R. Civ. P. 45 1, 7 

Fed. R. Civ. P. 45(c)(2)(A) 7 

Fed. R. Civ. P. 45(d)(2)(B) 7, 8

Fed. R. Civ. P. 45(d)(2)(B)(i) 8 

L.R. 7.1 1 

L.R. 7.2 1 

L.R. 53.1 1 

L.R. 56.3 1 

L.R. 56.6 1 

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SUMMARY

Woods, Stephens, and O’Neil objected to the Subpoena and failed to produce any 

documents or correspondence within the time period for compliance and should be compelled to

do so. It has been ten months since Woods, Stephens, and O’Neil served with the Subpoena, and 

yet Woods, Stephens, and O’Neil still have not produced any responsive documents. Plaintiff

therefore asks this Court for an order compelling a response and production of documents.

FACTUAL BACKGROUND

On October 20, 2022, Plaintiff served a Notice of Issuance of Subpoena to Woods, Stephens, 

and O’Neil. Attached hereto and incorporated herein in the attached Appendix is a copy of the 

subpoena that had been issued (the “Subpoena”). (See App. Pgs. 1-6).

Via the Subpoena, Plaintiff requested production of documents related to the matters before 

this Court. More particularly, Plaintiff’s subpoena commanded production of:

All materials including but not limited to correspondence, emails, calendar invites, text 

messages, phone records, reports, internal memoranda, personal notes, notations, work 

papers, drafts, and other writings, drawing, charges, photographs, computer printouts, 

spreadsheets, ledgers, graphics, analytics, and all other information kept by written, 

electronic, or other means relating to the parties in the above-entitled lawsuit and in relation 

to Association of Professional Flight Attendants, Eugenio Vargas, Nena Martin and Robert 

“Bob” Ross. (See App. Pg. 4).

This request includes any documents and communications between APFA and Woods, 

Stephens, and O’Neil regarding the former three National Officers of APFA: Eugenio Vargas, 

Robert “Bob” Ross, and Nena Martin.

1

 Considering that the named individuals in the request only 

served as National Officers during the period of April 1, 2016 to July 1, 2018—when the Ross 

Administration was in office—the request for documents and communications is limited to those 

documents from April 1, 2016 to current. Documents outside this time frame do not exist. 

Woods, Stephens, and O’Neil is an independent accounting firm that performs the annual 

1 The Subpoena request did not include any documents or communications related to Marcy Dunaway, the National 

Secretary within the Ross Administration, as she has since retired as a Flight Attendant and is no longer a member of 

APFA. 

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audit of all APFA expenses. Each yearly audit is submitted to the APFA Board of Directors and 

National Officers for review, and once finalized, the accounting audit forms the basis from which 

APFA drafts its annual U.S. Department of Labor (“DOL”) LM-2 Reports required under LMRDA

§207 or 29 U.S.C. §437. Woods, Stephens, and O’Neil are listed on the LM-2 as the accounting 

firm that assisted in drafting and conducting the audit for APFA since 2016.2 Furthermore, Woods, 

Stephens, and O’Neil conducted audits for alleged overpayments made and received by the Eugenio 

Vargas, Marcy Dunaway, and Nena Martin approximately in 2018-2019. 

On October 20, 2022, the Subpoena was served on Hal O’Neil, Owner with Woods, 

Stephens, and O’Neil, at 6300 Ridglea Pl., Ste 318, Fort Worth, TX 76116. (See App. Pgs. 1).

Woods, Stephens, and O’Neil served objections via Defendant’s Counsel within fourteen 

(14) days of their being served. However, Plaintiff has attempted to resolve this matter with 

opposing counsel on multiple occasions and now seeks the court’s intervention as Woods, Stephens, 

and O’Neil failed to serve any documents responsive of the subpoena request to date. 

On November 3, 2022, Woods, Stephens, and O’Neil served objections to Plaintiff’s 

Subpoena via Defendants’ counsel—now counsel for Woods, Stephens and O’Neil. (See App. Pgs. 

2-3). The original objections contain multiple grounds for objections including (1) undue burden 

and expense of the document production; (2) relevancy, (3) disproportionate requests in relation to 

the needs of the case, (4) vague, ambiguous and overly-broad, (5) privilege of documents produced 

to accountants for APFA. (See App. Pgs. 9-11). Defendants’ original counsel has since withdrawn

2 The LM-2 Filings require reporting whether or not an annual audit has been conducted under Question 12. Under 

Section 69, on the last page of each LM-2 form, APFA cites that the accounting firm that conducted the audit was 

Woods, Stephens, and O’Neil. 

2023 - https://olmsapps.dol.gov/query/orgReport.do?rptId=869753&rptForm=LM2Form

2022 – https://olmsapps.dol.gov/query/orgReport.do?rptId=840723&rptForm=LM2Form

2021 - https://olmsapps.dol.gov/query/orgReport.do?rptId=773865&rptForm=LM2Form

2020 - https://olmsapps.dol.gov/query/orgReport.do?rptId=731533&rptForm=LM2Form

2019 – https://olmsapps.dol.gov/query/orgReport.do?rptId=709508&rptForm=LM2Form

2018 – https://olmsapps.dol.gov/query/orgReport.do?rptId=679829&rptForm=LM2Form

2017 – https://olmsapps.dol.gov/query/orgReport.do?rptId=650505&rptForm=LM2Form

2016 – https://olmsapps.dol.gov/query/orgReport.do?rptId=628943&rptForm=LM2Form

2015 – https://olmsapps.dol.gov/query/orgReport.do?rptId=594782&rptForm=LM2Form

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from the case before the Court, and Plaintiff’s counsel emailed a subsequent request to Woods, 

Stephens, and O’Neil c/o Hal O’Neil, CPA, owner of the accounting firm on August 16, 2023 

requesting compliance with the Subpoena. (See App. Pg. 14). On August 14, 2023, Plaintiff’s 

counsel also emailed Defendants’ counsel and requested he withdraw the objections. (See App. 

Pgs. 25-26). On August 15, 2023, Defendants’ counsel refused to withdraw his objections. (See 

App. Pgs. 24-25). To date, no confirmation has been made as to whether Defendants’ counsel also 

represents Woods, Stephens, and O’Neil. 

On August 18, 2023, in response to the request via email made on Hal O’Neil on August 16, 

2023, a response was received via Counsel for Defendants reiterating his objections and attaching 

Hal O’Neil to the email requesting a telephone conversation. (See App. Pgs. 21-22). Counsel for 

both parties spoke via a telephone call on August 23, 2023 wherein Defendants’ counsel sought 

clarification of the subpoena request and what documents were sought. Plaintiff’s counsel explained 

that he sought all documents and communications between APFA and Woods, Stephens, and O’Neil 

related to the three remaining members of the Ross Administration since 2016. Defendants’ 

counsel stated that:

On the topic of communications with the auditors, I think the request is 

concerning the Ross Administration. Our view is that that is way too over-broad. 

It includes a lot of information that would be totally irrelevant to this case. It 

includes sensitive financial information and. . . what this case is about and what 

the focus of the dispute is about is around what you are calling the Confidential 

Memorandum and the creation of that analysis of that and the distribution of that 

and with respect to that we are agreeable to producing the documents around the 

Confidential Memo—the request for the creation, the emails back and forth about 

it, and distribution of it.

This conversation was evidenced in another email sent to opposing counsel on August 25, 

2023. (See App. Pgs. 18-20). Plaintiff’s counsel offered to limit the requests for documents and 

communications to those relating to the Ross Administration but originated after the Ross 

Administration left office—from 2018 to current. This limitation would eliminate any concern 

regarding private financial documents and isolate the scope of focus to the conduct of the union 

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regarding the three remaining Ross Administration officers; however, Defendants’ counsel 

maintained his objection to the scope as being overly-broad. (See App. Pgs. 19-20). As of the date 

of filing this motion, no resolution has been reached on the issue of the outstanding Subpoena 

request to Woods, Stephens, and O’Neil. Additionally, as of the date of filing this motion, 

Defendants and/or Woods, Stephens, and O’Neil have failed to turn over any documents. Finally, 

as of the filing of this motion, Defendants’ Counsel has yet to indicate whether or when Woods, 

Stephens, and O’Neil will turn over documents. 

ARGUMENT

“Federal Rule of Civil Procedure 45 ‘explicitly contemplates the use of subpoenas in relation 

to non-parties’ and governs subpoenas served on a third party . . . as well as motions to quash or 

modify or to compel compliance with a subpoena.” Am. Fed’n of Musicians of the United States & 

Canada v. Skodam Films, LLC, 313 F.R.D. 39, 42 (N.D. Tex. 2015) (quoting Isenberg v. Chase Bank 

USA, N.A., 661 F. Supp. 2d 627, 629 (N.D. Tex. 2009)). Under Rule 45, a party may serve a 

subpoena to command from nonparties the “production of documents, electronically stored 

information, or tangible things at a place within 100 miles of where the person resides, is employed, 

or regularly transacts business in person.” FED. R. CIV. P. 45(c)(2)(A). 

Woods, Stephens, and O’Neil submitted a host of different inappropriate objections which 

clearly demonstrate an intent to merely subvert Plaintiff’s ability to seek necessary documentation 

for its claims and defenses. (See App. Pgs. 9-11). Plaintiff requests the court to overrule Defendants 

and/or Woods, Stephens, and O’Neil objections and compel responses to Plaintiff’s Subpoena. 

Undue Burden Objection: 

"When a subpoena is issued as a discovery device, relevance for purposes of the undue burden 

test is measured according to the standard of [Federal Rule of Civil Procedure] 26(b)(1)." Am. Fed’n 

of Musicians 313 F.R.D. at 12 (quoting Williams v. City of Dallas, 178 F.R.D. 103, 110 (N.D. Tex. 

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1998)). Rule 26(b)(1) provides that, "[u]nless 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." Am. Fed'n of 

Musicians, LLC 313 F.R.D at 11-12 (N.D. Tex. 2015) (quoting from FED. R. CIV. P. 26(b)(1)). 

Rule 45 provides the serving party to “move the court for the district where compliance is 

required for an order compelling production or inspection.” FED. R. CIV. P. 45(d)(2)(B)(i); see also 

FED. R. CIV. P. 34(c) (“As provided in Rule 45, a nonparty may be compelled to produce documents 

and tangible things or to permit an inspection.”).

A party commanded to produce documents under a subpoena may serve written objections to 

producing documents, under FED. R. CIV. P. 45(d)(2)(B). However, “[t]he party opposing discovery 

must show how the requested discovery was overly broad, burdensome, or oppressive by submitting 

affidavits or offering evidence revealing the nature of the burden.” Am. Fed'n of Musicians, LLC, 

313 F.R.D at 11 (N.D. Tex. 2015) (citing SEC v. Brady, 238 F.R.D. 429, 436 (N.D. Tex. 2006)).

This court explains the test "[t]o determine whether the subpoena presents an undue burden, 

[the Court] consider[s] the following factors: 

(1) relevance of the information requested; 

(2) the need of the party for the documents; 

(3) the breadth of the document request; 

(4) the time period covered by the request; 

(5) the particularity with which the party describes the requested documents; and 

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(6) the burden imposed." Am. Fed'n of Musicians, LLC 313 F.R.D at 11 (citing Wiwa v. 

Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004)). 

Here, Defendants/Woods, Stephens, and O’Neil are unable to meet the test for undue burden. 

In particular, the information sought is clearly relevant. Defendants filed counterclaims seeking 

damages for payments made and received while Plaintiff was in office. (See Defs. Am. Answer and 

Counterclaims Doc. 79, PAGEID 1814-1816). This requires Plaintiff to seek documents relating to 

his payments made between 2016-2018, when he held office as APFA National President. 

Considering Woods, Stephens, and O’Neil conducted the annual audit of all expenses and aided in 

drafting the LM-2—as noted on the public filing of the U.S. Department of Labor filings between 

2016 to 2018—this would put the audit, all documents reviewed during this process, and Woods, 

Stephens, and O’Neil’s rendered accounting audit squarely at issue for those years. All payments 

made and received by Plaintiff would have been reviewed and included in those annual audits. 

The need of Plaintiff to obtain the documents is clear. The basis of this suit centers on 

Defendants withholding information from a disciplinary hearing for payments and charges he made 

while in office. Harris requested Woods, Stephens, and O’Neil create the documents to reflect the 

calculations desired, and then presented to the APFA Board of Directors citing that it was the

accounting firm that determined that Ross owed this money. But in 2019, APFA conducted a similar 

audit and made a similar demand on the remaining Ross Administration officials. It is likely that 

communications and documents retained within Woods, Stephens, and O’Neil records from 2018 to 

current would relate to the Ross Administration. It is further likely that those documents and records 

with APFA officials, may not likely be recoverable by APFA since new National Officers now hold 

office. The National Officers during 2019 are not the same as those currently serving, thus it is likely 

that those communications may no longer be retrievable from APFA records and servers. Therefore, 

obtaining the documents and communications from the accounting firm that conducted all audits of 

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the Ross Administration, their documents reviewed, notations, graphs, meetings with APFA, and any 

additional related documentation would be the best and most appropriate method to obtain reliable

non-privileged evidence considering the circumstances at issue. 

The breadth and time frame of the document request isreasonable. Considering Plaintiff took 

office as National President in 2016, the lack of a date by reference in the subpoena is one implied 

by the facts at issue—all documents from 2016 to current. No additional documents should be 

available as the Ross Administration did not take office as National Officers until April 1, 2016. 

Thereafter, APFA requested additional audits of the Ross Administration officers, which were 

conducted in 2019 on Marcy Dunaway, Eugenio Vargas, and Nena Martin for alleged overpayments. 

(See Pl. Orig. Complt. Doc. 1-2, PAGEID 33). Furthermore, Woods, Stephens, and O’Neil 

conducted an accounting review of payments made under the Ross Transition Agreement during 

2020-2021. (See Pl. Orig. Complt. Doc. 1-2, PAGEID 33; See Aff. Nena Martin, Doc. 52-2, PAGEID 

1318-1326). Upon conference, Plaintiff’s counsel further explained that all documents and 

communications sought were pertinent only to Nena Martin, Robert “Bob” Ross, and Eugenio Vargas

and only those after April 1, 2016. Defendant’s counsel maintained his objections to all documents 

other than those related to the Confidential Memo from Hal O’Neil dated October 22, 2020 and the 

all documents related to the accounting review that precipitated.

Vague, Ambiguous and Overly-broad Objection: 

A subpoena can be too indefinite if its demands are overly vague or amorphous, but the 

breadth of the production demanded is a topic better-suited for an inquiry of relevancy or undue 

burden. See EEOC v. Aerotek, Inc., 815 F.3d 328 at 332, 334 (7th Cir. 2016) (treating the appellant's 

objection that an administrative subpoena's requests amounted to "a fishing expedition totally 

unrelated to the matter under investigation" as a relevancy challenge, while also noting that the 

appellant made "no claim that the request is too indefinite"). A non-party’s written objections are held 

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to the same standards as those under Rule 34. Objections, just as requests, are required to be made 

with reasonable particularity. Therefore, these objections “are subject to the same prohibition on 

general or boiler-plate objections and requirements that the objections must be made with specificity 

and that the responding party must explain and support its objections.” Heller v. City of Dallas, 303 

F.R.D. 466, 483 (N.D. Tex. 2014). 

The Subpoena request describes with reasonable particularity those documents within 

Woods, Stephens, and O’Neal’s possession that are responsive. Plaintiff described those facts that 

should guide any search of the documents Woods, Stephens, and O’Neil held in their possession. 

Plaintiff requested all materials written or otherwise, that relate to the parties involved in the lawsuit 

and APFA, Nena Martin, Robert “Bob” Ross, and Eugenio Vargas. The only documents Woods, 

Stephens, and O’Neil should possess relating to the Ross Administration are those that occurred after 

April 1, 2016 when the Ross Administration took office. The Ross Administration would not have 

communicated with Woods, Stephens and O’Neil nor were any audits or accounting reviews 

conducted prior to this date relating to any member of the Ross Administration. No other documents 

should exist within Woods, Stephens, and O’Neil’s possession for those reviews. APFA has not 

audited any other National Officers since 2008 other than those in the Ross Administration. Even if 

the request is “overly broad”, Plaintiff’s counsel clearly explained to Defendants’ counsel that 

Plaintiff sought all documents and communications in relation to the Ross Administration since 2016

in Woods, Stephens, and O’Neil’s possession. Upon discussing Defendant’s request to limit the 

scope, Plaintiff conceded to limiting the scope to those documents and communications after July 1, 

2018, when the Ross Administration left office—yet Defendants’ counsel maintained his objections. 

Relevancy Objection: 

“To determine whether a subpoena is unduly burdensome, the district court must ‘weigh the 

likely relevance of the requested material to the investigation against the burden to [the respondent] 

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of producing the material.’” Walsh v. Alight Solutions LLC, 44 F.4th 716, 725 (7th Cir. 2022) (quoting 

EEOC v. Ford Motor Credit Co. , 26 F.3d 44, 47 (6th Cir. 1994)); see Chao, 467 F.3d at 1017 

(requiring requested information to be "reasonably relevant"). "Under that rule, information is 

relevant if it 'bears on, or that reasonably could lead to other matters that could bear on, any issue 

related to the claim or defense of any party.’” Leonard v. Martin, 38 F.4th 481, 489 (5th Cir. 2022) 

(citing Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991). 

Burdensome or Disproportionate Requests in relation to the Needs of the Case

Objection: 

When examining the burden of complying with a subpoena, "[t]he presumption is that 

compliance should be enforced to further the agency's legitimate inquiry into matters of public 

interest." United Air Lines, Inc., 287 F.3d 643, 653 (7th Cir. 2002) (quoting FTC v. Shaffner, 626 

F.2d 32, 38 (7th Cir. 1980)). "Often we have phrased this ‘difficult burden’ as requiring a showing 

that ‘compliance would threaten the normal operation of a respondent's business.’ " Id. (quoting 

EEOC v. Bay Shipbuilding Corp., 668 F.2d 304, 313 (7th Cir. 1981)). This is a fact-intensive inquiry, 

and "[c]onclusory allegations of burdensomeness are insufficient." Id. 

The request is not burdensome as it seeks only those financial documents relating to the 

Plaintiff and his associates while in office and the correspondence between Woods, Stephens, and 

O’Neil with APFA in relation to those charges. Clearly a claim for breach of fiduciary duty under 

29 U.S.C. § 501 for financial violations requires a showing of any and all charges, expenses, and 

payments made and received by Plaintiff. Considering Plaintiff claims the union wrongfully

disciplined him for exercising his rights under 29 U.S.C. § 411(a)(2) based on dueling political parties

within the union, any documents and communications evidencing motivations of the APFA National 

Officers since 2019 relating to the separate audits or accounting reviews for the Ross Administration

would be pertinent to the claims before this court. The request is limited in scope and clearly requests

relevant information. 

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Wood, Stephens, O’Neil claims the burden and expense of the document production is 

extensive, however fail to state the possible cost thereof. Plaintiff seeks financial documents and 

communications from 2016 to current relating to the Ross Administration, and yet Wood, Stephens, 

O’Neil claim this is overly broad. The claims at issue regard audits and/or accounting reviews of all 

four national officers under the Ross Administration by the APFA. Furthermore, Defendants 

counterclaims for breach of fiduciary duty are rooted in payments made and received that are not in 

compliance with APFA Policy, therefore the financial documents evidencing these payments would 

be well within the purview of discoverable information. Plaintiff seeks a copy of the documents from 

Wood, Stephens, O’Neil demonstrating what was reviewed, what notes were taken, and the 

impressions from Wood, Stephens, O’Neil for any audit or review that found the Ross Administration

guilty of wrongful payments. As a concession and in an attempt to resolve the issue without judicial 

intervention however, Plaintiff agreed to allow Wood, Stephens, O’Neil to limit its responses to those 

that occurred between 2018 to current day as those documents and communications would eliminate 

those communications while Plaintiff was in office, but include any request and communication 

regarding APFA’s request and Wood, Stephens, O’Neil’s impression upon creating an audit and/or 

accounting review. Unfortunately, this concession failed to appease Defendants’ Counsel. He 

insisted on limitations to the scope to those responsive documents and communications relating only 

to the Confidential Memo and the accounting review. Unfortunately, this ignores the fact that APFA 

requested financial audits of Eugenio Vargas, Nena Martin, and Marcy Dunaway in 2019, not to 

mention the need for those documents that relate to any alleged payments made and received while 

Plaintiff was in office. These documents go to the heart of Plaintiff’s defense for a possible breach 

of fiduciary duty claim—what payments were made and received that rise to the level of the 

misconduct alleged by Defendants. 

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Accountant-Client Privilege Objection: 

Federal courts do not recognize an accountant-client evidentiary privilege. Arthur Young & 

Co., 465 U.S. 805, 817, 104 S.Ct. 1495, 79 L.Ed.2d 826 (1984). This is clearly an improper objection. 

In Texas, those obligations can be found in the Public Accountancy Act under a section 

entitled “Accountant-Client Privilege.” See Tex. Occ. Code §901.457. Texas courts conclude that this 

statute does not, in fact, create an evidentiary privilege. Rather, what it does is impose on the 

accountant strict client-confidentiality obligations that can trap the unwary in responding to 

discovery. Courts interpreting the Texas statute have concluded that “accountant-client 

communications are confidential, but not privileged.” Cantu v. TitleMax, Inc., 5:14-CV-628 (W.D. 

Tex. Oct. 9, 2015); see also United States v. White, 487 F.2d 1335 (5th Cir. 1973) (court held "There 

is no confidential accountant-client privilege under federal law and no state-created privilege has 

been recognized in federal cases.”). 

To date, Defendants’ Counsel maintains his clients’ objections, including his assertion of an 

accountant-client privilege. to the Subpoena served on Woods, Stephens, and O’Neil as overlybroad and vague. Plaintiff now seeks relief from this Court to grant his Motion to Compel Response 

to Subpoena on Woods, Stephens, and O’Neil and overrule Defendants’ objections. 

CONCLUSION

WHEREFORE, PREMISES CONSIDERED, Plaintiffs request that this Court grant his 

Motion to Compel Response to Subpoena on Woods, Stephens, and O’Neil., and for such other relief 

as the Court deems proper.

THIS, the 5th day of September, 2023. 

Respectfully submitted,

 

 

By: /s/ Kerri Phillips 

Kerri Phillips, Esq.

Texas Bar No. 24065906

Case 4:22-cv-00343-Y Document 114 Filed 09/05/23 Page 14 of 17 PageID 2352
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Phone: (972) 327-5800

Email: kerri@kdphillipslaw.com

KD PHILLIPS LAW FIRM, PLLC

6010 West Spring Creek Parkway

Plano, Texas 75024

Fax: (940) 400-0089

For Service of Filings: 

notice@kdphillipslaw.com

ATTORNEY FOR PLAINTIFF

Case 4:22-cv-00343-Y Document 114 Filed 09/05/23 Page 15 of 17 PageID 2353
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CERTIFICATE OF CONFERENCE

Pursuant to Local Rule 7.1(b) I hereby certify that counsel for the movant has conferred 

with Defendant in a good faith effort to resolve the issues raised herein. Plaintiff’s counsel

conferred with Defendants’ counsel on via email on August 14, 2023, August 17, 2023, August 

18, 2023. A telephone call was held on August 23, 2023 wherein the concerns and objections 

were discuss, in particular Plaintiff offered to limit the time frame of the Requests for Production 

No. 1, 2 and 3 to overcome Defendants objections without success in appeasing him. Plaintiff’s 

further conferred with Defendants on via email on August 25, 2023, August 26, 2023, and 

received a response on August 30, 2023 stating documents would be produced on August 31, 

2023. As of the date of filing this Motion, Plaintiffs served extremely limited responses that were 

heavily redacted and only responsive to Request for Production 2, and no documents have been 

received from Woods, Stephens, and O’Neil. Counsel conferred on September 1, 2023 as to the 

relief requested in this instant Motion and Defendants’ counsel has replied they are opposed to 

the Motion. Counsel for Diversified is unopposed. 

THIS, the 5th day of September, 2023. 

 

By: /s/ Kerri Phillips 

Kerri Phillips

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing BRIEF IN SUPPORT OF 

MOTION TO COMPEL PRODUCTION OF DOCUMENTS IN RESPONSE TO 

SUBPOENA ISSUED ON WOODS, STEPHENS, O’NEIL, L.L.P. has been served in

accordance with the Federal Rules of Civil Procedure to all counsel of record identified below on 

this the 5th day of September, 2023. 

 

By: /s/ Kerri Phillips 

Kerri Phillips

Jeffrey Bartos

Guerrieri, Bartos, & Roma, P.C. 

1900 M Street, NW, Suite 700

Washington, DC 20036

Tel: (202) 624-7400; Fax: (202) 624-7420 

Email: jbartos@geclaw.com

Case 4:22-cv-00343-Y Document 114 Filed 09/05/23 Page 16 of 17 PageID 2354
17 

Charlette Matts

In-House Counsel for APFA

1004 West Euless Blvd

Euless, TX 76040

Tel: (682) 301-8454 

Cmatts@apfa.org

James Sanford

4803 Gaston Avenue

Dallas, TX 75249-1020 

Tel: (214) 800-5111; Fax: (214) 838-

0001 

Email jim@gillespiesanford.com

Email: joe@gillespiesanford.com

Michael Rake

PO Box 1556 

Lake Dallas, TX 75065-1556 

Tel: (940) 498-2103 Fax: (940) 498-2103 

Email: mrake1@mrakeattorney.com

Case 4:22-cv-00343-Y Document 114 Filed 09/05/23 Page 17 of 17 PageID 2355