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 Plaintiffs,

AND

EUGENIO VARGAS,

Plaintiff/Counterclaim Defendant,

v.

ASSOCIATION OF PROFESSIONAL 

FLIGHT ATTENDANTS, et al., 

 Defendants/Counterclaim Plaintiffs.

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

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

Consolidated with 4:22-CV-430-Y

Judge Terry R. Means

APPENDIX TO APFA DEFENDANTS’ MOTION FOR RULE 30(d) AND 37(b) 

SANCTIONS AND BRIEF IN SUPPORT 

Pursuant to Local Rule 7.1(i), the Association of Professional Flight Attendants 

(“APFA”), its National President, Julie Hedrick, and National Treasurer, Erik Harris 

(collectively, “the APFA Defendants”), hereby submit the following appendix to its Motion for 

Rule 30(d) and 37(b) Sanctions and Brief in Support. 

Tab Description APFA Appx.

Ex. 1 APFA’s Second Amended Notice of Deposition for Bob Ross 

dated January 5, 2024

1-2

Ex. 2 APFA’s Second Amended Notice of Deposition for Eugenio 

Vargas dated January 5, 2024

3-4

Ex. 3 Transcript Excerpts of Bob Ross Deposition of February 1, 2024

with redactions for potentially confidential health information. 

5-31

Case 4:22-cv-00343-Y Document 206 Filed 02/16/24 Page 1 of 73 PageID 4797
2

Tab Description APFA Appx.

Ex. 4 Transcript Excerpts of Eugenio Vargas Deposition of February 

2, 2024. 

32-42

Ex. 5 Lincoln Gen. Ins. Co. v. Maxwell, 16-CV-03198, 2018 

WL 4610533 (N.D. Tex. Sept. 26, 2018)

43-45

Ex. 6 Murillo Modular Group, Ltd. v. Sullivan, 13-cv-3020, 2016 

WL 6139096 (N.D. Tex. Oct. 20, 2016)

46-55

Ex. 7 Carter v. Burlington Northern Santa, LLC, 15-cv-366, 2016 WL 

3388707 (N.D. Tex. Feb. 8, 2016)

56-60

Ex. 8 Nieman v. Hale, 12-cv-2433, 2014 WL 4375669 (N.D. Tex. Sept. 

4, 2014)

61-65

Ex. 9 VirnetX Inc. v. Cisco Sys., Inc., 10-cv-417, 2012 WL 7997962 

(E.D. Tex. Aug. 8, 2012)

66-70

Date: February 16, 2023 Respectfully Submitted,

/s/

JAMES D. SANFORD 

Tex. Bar No. 24051289

Gillespie Sanford LLP

4803 Gaston Ave.

Dallas, TX 75246

Tel.: (214) 800-5111; Fax.: (214) 838-0001

Email: jim@gillespiesanford.com

JEFFREY A. BARTOS, pro hac vice 

D.C. Bar No. 435832

Guerrieri, Bartos & Roma, PC

1900 M Street, N.W. Suite 700

Washington, DC 20036

Tele.: (202) 624-7400; Fax: (202) 624-7420

Email: jbartos@geclaw.com

Counsel for the APFA Defendants

CHARLETTE L. BRODERICK (pro hac vice)

Tex. Bar No. 24133870

Association of Professional Flight Attendants

1004 W. Euless Blvd.

Euless, TX 76040

Tel.: (682) 301-8454

Email: Cbroderick@apfa.org

Counsel for APFA

James D. Sanford

Case 4:22-cv-00343-Y Document 206 Filed 02/16/24 Page 2 of 73 PageID 4798
3

CERTIFICATE OF SERVICE

I certify that on February 16, 2024, a true and correct copy of the foregoing document

was served upon all persons who have requested notice and service of pleadings in this case via 

the Court’s ECF system. 

KERRI PHILLIPS

K.D. Phillips Law Firm, PLLC

6010 W. Spring Creek Parkway

Plano, TX 75024

Phone: (972) 327-5800

Fax: (940) 400-0089

Email: kerri@KDphillipslaw.com

MICHAEL R RAKE

Michael R. Rake, Attorney at Law PO Box 1556

Lake Dallas, TX 75065 

Tel.: (940) 498-2103

Fax: (940) 498-2103

Email: mrake1@mrakeattorney.com

/s/

JAMES D. SANFORD 

James D. Sanford

Case 4:22-cv-00343-Y Document 206 Filed 02/16/24 Page 3 of 73 PageID 4799
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.

§

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

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

 Judge Terry R. Means 

2d AMENDED NOTICE OF DEPOSITION - BOB ROSS 

PLEASE TAKE NOTICE that counsel for Defendants Association of Professional 

Flight Attendants, Julie Hedrick and Erik Harris will take the deposition of Plaintiff 

Robert (“Bob”) Ross upon oral examination, under oath before a notary public duly 

licensed in the State of Texas on Thursday, February 1, 2024 beginning at 10:00 a.m. at 

the following location: 

Springhill Suites - DFW Airport South/Centreport 

4360 Highway 360 

Fort Worth, TX, 76155 

The deposition will be conducted pursuant to Rule 30 of the Federal Rules of Civil 

Procedure, for all purposes permissible under those Rules. Testimony will be recorded by 

stenographic and videographic means. 

Dated: January 5, 2024 

APPENDIX 1

Case 4:22-cv-00343-Y Document 206 Filed 02/16/24 Page 4 of 73 PageID 4800
_/s/ Jeffrey A. Bartos

JEFFREY A. BARTOS (pro hac vice) 

D.C. Bar No. 435832

Guerrieri, Bartos & Roma, PC

1900 M Street, N.W. Suite 700

Washington, DC 20036

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

Email: jbartos@geclaw.com

JAMES D. SANFORD

Tex. Bar No. 24051289 

Gillespie Sanford LLP 

4803 Gaston Ave. 

Dallas, TX 75246 

Tel.: (214) 800-5111; Fax.: (214) 838-0001 

Email: jim@gillespiesanford.com 

Counsel for Defendant and Counterclaim Plaintiff 

Association of Professional Flight Attendants, and 

Defendants Julie Hedrick and Erik Harris

CHARLETTE L. MATTS (pro hac vice) 

Tex. Bar No. 24133870 

Association of Professional Flight Attendants 

1004 W. Euless Blvd. 

Euless, TX 76040

Tel.: (682) 301-8454 

Email: Cmatts@apfa.org 

Counsel for Defendant and Counterclaim Plaintiff 

Association of Professional Flight Attendants 

APPENDIX 2

Case 4:22-cv-00343-Y Document 206 Filed 02/16/24 Page 5 of 73 PageID 4801
IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION

EUGENIO VARGAS,

Plaintiff/Counterclaim Defendant,

v.

ASSOCIATION OF PROFESSIONAL 

FLIGHT ATTENDANTS, et al., 

Defendants/Counterclaim Plaintiff.

§

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§

Civil Action No. 4:22-cv-430-Y 

Judge Terry R. Means 

2d AMENDED NOTICE OF DEPOSITION - 

EUGENIO VARGAS

PLEASE TAKE NOTICE that counsel for Defendants Association of Professional 

Flight Attendants, Julie Hedrick and Erik Harris will take the deposition of Plaintiff 

Eugenio Vargas upon oral examination, under oath before a notary public duly licensed 

in the State of Texas on Friday, February 2, 2024, beginning at 10:00 a.m. at the 

following location: 

Springhill Suites - DFW Airport South/Centreport 

4360 Highway 360 

Fort Worth, TX, 76155 

The deposition will be conducted pursuant to Rule 30 of the Federal Rules of Civil 

Procedure, for all purposes permissible under those Rules. Testimony will be recorded by 

stenographic and videographic means. 

Dated: January 5, 2024

APPENDIX 3

Case 4:22-cv-00343-Y Document 206 Filed 02/16/24 Page 6 of 73 PageID 4802
 /s/ Jeffrey A. Bartos

JEFFREY A. BARTOS (pro hac vice) 

D.C. Bar No. 435832

Guerrieri, Bartos & Roma, PC

1900 M Street, N.W. Suite 700

Washington, DC 20036

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

Email: jbartos@geclaw.com

JAMES D. SANFORD 

Tex. Bar No. 24051289

Gillespie Sanford LLP 

4803 Gaston Ave. 

Dallas, TX 75246

Tel.: (214) 800-5111; Fax.: (214) 838-0001

Email: jim@gillespiesanford.com

Counsel for Defendant and Counterclaim Plaintiff 

Association of Professional Flight Attendants, and 

Defendants Julie Hedrick and Erik Harris 

CHARLETTE L. MATTS (pro hac vice) 

Tex. Bar No. 24133870 

Association of Professional Flight Attendants 

1004 W. Euless Blvd. 

Euless, TX 76040

Tel.: (682) 301-8454

Email: Cmatts@apfa.org

Counsel for Defendant and Counterclaim Plaintiff 

Association of Professional Flight Attendants 

2 

APPENDIX 4

Case 4:22-cv-00343-Y Document 206 Filed 02/16/24 Page 7 of 73 PageID 4803
Robert Ross 2/1/2024

STRYKER REPORTING SERVICES (817) 494-0700

 IN THE UNITED STATES DISTRICT COURT

 FOR THE NORTHERN DISTRICT OF TEXAS

 FORT WORTH DIVISION

ROBERT (BOB) ROSS, §

 §

Plaintiff/ §

Counterclaim Defendant, §

 § Civil Action No.

VS. § 4:22-cv-343-Y

§

ASSOCIATION OF § Judge Terry R. Means

PROFESSIONAL FLIGHT §

ATTENDANTS, et al., §

 §

Defendants/ §

Counterclaim Plaintiff. §

 -----------------------------------

 VIDEOTAPED ORAL DEPOSITION OF

 ROBERT ROSS

VOLUME 1

 FEBRUARY 1, 2024

 -----------------------------------

 VIDEOTAPED ORAL DEPOSITION OF ROBERT ROSS,

 produced as a witness at the instance of the

 Defendants/Counterclaim Plaintiff, and duly sworn, was

 taken in the above-styled and -numbered cause on

 February 1, 2024, from 10:53 a.m. to 4:56 p.m., before

 Angela L. Mancuso, CSR No. 4514 in and for the State of

 Texas, reported by machine shorthand, at Springhill

 Suites - DFW Airport South/Centreport, 4360 Highway 360,

 Fort Worth, Texas, pursuant to the Federal Rules of

 Civil Procedure, Notice, and any provisions stated on

 the record.

APPENDIX 5

Case 4:22-cv-00343-Y Document 206 Filed 02/16/24 Page 8 of 73 PageID 4804
Robert Ross 2/1/2024

2

STRYKER REPORTING SERVICES (817) 494-0700

2

1 A P P E A R A N C E S

2

 FOR THE PLAINTIFF/COUNTERCLAIM DEFENDANT:

3

 MS. KERRI PHILLIPS

4 K.D. PHILLIPS LAW FIRM, PLLC

6010 West Spring Creek Parkway

5 Plano, Texas 75024

(972) 327-5800

6 kerri@KDphillipslaw.com

7

 FOR THE DEFENDANTS/COUNTERCLAIM PLAINTIFF ASSOCIATION OF

8 PROFESSIONAL FLIGHT ATTENDANTS AND DEFENDANTS JULIE

 HEDRICK AND ERIK HARRIS:

9

 MR. JEFFREY A. BARTOS

10 GUERRIERI, BARTOS & ROMA, P.C.

 1900 M Street, N.W.

11 Suite 700

 Washington, D.C. 20036

12 (202) 624-7400

jbartos@geclaw.com

13

 MS. CHARLETTE L. BRODERICK

14 Association of Professional Flight Attendants

 1004 West Euless Boulevard

15 Euless, Texas 76040

(682) 301-8454

16 cmatts@apfa.org

17

 ALSO PRESENT:

18

 Ms. Michelle Cliatt, APFA Legal Assistant

19

 Mr. Erik Harris, APFA National Treasurer

20

 Ms. Julie Hedrick, APFA National President

21

 Mr. Adam Phillips, Paralegal

22 K.D. Phillips Law Firm, PLLC

23 Mr. John Hines, Videographer

 Elite Video Productions

24 3018 Commerce Street

 Dallas, Texas 75226

25 (214) 747-1952

3

1 TABLE OF CONTENTS

PAGE

2

 Appearances...................................... 2

3

 ROBERT ROSS, VOLUME 1

4

 Examination by Mr. Bartos........................ 8

5

 Changes and Signature............................ 161

6 Reporter's Certification......................... 163

7

 EXHIBITS

8 NUMBER DESCRIPTION PAGE

9 Exhibit 1 Online posts 18

 [Ross/Vargas 001190-1197]

10

 Exhibit 2 Transcript excerpt, pages 382-384 26

11

 Exhibit 3 Transition Agreement 45

12

 Exhibit 4 3/2/18 Calculation of vacation 53

13 and sick benefits

 [Ross/Vargas 000459-460]

14

 Exhibit 5 Affidavit of Robert Ross in Support 57

15 of Plaintiff's Original Petition and

 Motion to Vacate

16

 Exhibit 6 Online posts 62

17 10/13/16 letter to Sara Nelson

 [Appendix 27-30]

18

 Exhibit 7 The Constitution of the Association 70

19 of Professional Flight Attendants

20 Exhibit 8 Article VII Charges - Ross - Post 78

 Hearing Brief

21

 Exhibit 9 Typewritten notes 84

22

 Exhibit 10 10/22/20 Confidential Memorandum 86

23 [APFA0164-176]

24 Exhibit 11 2/27/22 email from Kit Gomez Alba to 89

 National Secretary

25

4

1 Exhibit 12 2/28/22 email from Ruben Armendariz 90

 to National Secretary

2

 Exhibit 13 Staples receipts 128

3 [Appendix 190-191]

4 Exhibit 14 Uber receipts 130

 [Appendix 204-208]

5

 Exhibit 15 Affidavit of Robert "Bob" Ross in 134

6 Support of Damages

 [Appendix 183-189]

7

 Exhibit 16 Medical records 140

8 [Appendix 220-231]

9 Exhibit 17 Medical records 143

 [Appendix 246-253] 

10

11

12

13

14

15

16

17

18

19

20

21

22

23 REPORTER'S NOTE:

24 Quotation marks are used for clarity and do

 not necessarily reflect a direct quote.

25

5

1 (February 1, 2024, 10:53 a.m.)

2 MR. BARTOS: For the record, this is Jeff

3 Bartos, attorney for the APFA defendants. It is

4 whatever the time the court reporter has indicated,

5 nearly 11:00 a.m., for the deposition we've noticed for

6 10:00 a.m.

7 I'm here with Charlette Matts, counsel in the

8 case as well at APFA, in-house counsel; Michelle Cliatt,

9 who works for Ms. Matts -- Ms. Broderick. I'm also here

10 with the defendants Julie Hedrick and Erik Harris and

11 then two of APFA's national officers who are here on

12 behalf of APFA, Larry Salas and Josh Black. Also

13 present is counsel for Mr. Bob Ross and another

14 individual.

15 A dispute has arisen about whether or not the

16 individuals who are here on behalf of APFA are allowed

17 to be here or should be here or whether the deposition

18 can proceed with them here. It's my understanding that

19 Mr. Ross is refusing to testify in his deposition unless

20 Mr. Salas and Mr. Black leave the room.

21 MS. PHILLIPS: That's incorrect.

22 MR. BARTOS: Okay. Let me just finish.

23 It's our position that as party

24 representatives of APFA, they are wholly entitled to be

25 here. I've offered for Mr. Salas to leave the room.

APPENDIX 6

Case 4:22-cv-00343-Y Document 206 Filed 02/16/24 Page 9 of 73 PageID 4805
Robert Ross 2/1/2024

3

STRYKER REPORTING SERVICES (817) 494-0700

6

1 But we are entitled to have a representative from APFA

2 here and intend to proceed on that basis.

3 I wanted to go on the record and have counsel

4 for Mr. Ross say whatever it is that she wants to say.

5 MS. PHILLIPS: My name is Kerri Phillips.

6 For the record, I represent Robert Ross. I'm going on

7 the record to state that we've been called and appeared

8 to the deposition at 10:00 and discovered that the

9 deposition was originally scheduled and planned to be

10 conducted at a neutral location, at counsel's office,

11 and was rescheduled to be conducted at a hotel that --

12 where the Union's negotiation team and all four national

13 officers were in attendance, as well as other numerous

14 Union personnel and employees were staying.

15 Mr. Ross, when he appeared, saw many of these

16 Union officials in the parking lot and began to have a

17 panic attack and chest pains, at which point he called

18 me while I was in transit to the location.

19 And we discovered that the last -- the change

20 with the new scheduled date, from the attorney's office

21 to the new hotel, was clearly a game-playing move

22 designed to cause abuse and harassment for purposes of

23 pressuring Mr. Ross for his deposition testimony.

24 We have never received notice that Mr. Black

25 and Mr. Salas were going to be in attendance. And the

7

1 two named defendants are also capable of representing

2 APFA. There is no need for Mr. Black and Mr. Salas to

3 be in attendance.

4 Mr. Ross is willing to come in and do his

5 deposition testimony provided that the two additional

6 officers leave the room. We have also offered and are

7 willing to do the deposition today at the attorney's

8 office in downtown Dallas, provided that we relocate to

9 the downtown Dallas office, if you guys are willing to

10 do so.

11 MR. BARTOS: Just for clarity, that last

12 part is news to me. Are you referring to moving to Jim

13 Sanford's office?

14 MS. PHILLIPS: Yes.

15 MR. BARTOS: And instead of doing it

16 here?

17 MS. PHILLIPS: Yes.

18 MR. BARTOS: Okay. I'd like to discuss

19 that with our group, the two different scenarios. We

20 obviously want to proceed with the deposition. Let me

21 talk with them, and we can come back on the record, if

22 needed. Hopefully we will either have a resolution or

23 we won't.

24 We can go off the record.

25 (Recess from 10:57 a.m. to 11:17 a.m.)

8

1 P R O C E E D I N G S

2 THE VIDEOGRAPHER: This is Tape 1 in the

3 video deposition of Bob Ross in the matter of Robert

4 Ross versus Association of Professional Flight

5 Attendants, et al., in the U.S. District Court for the

6 Northern District of Texas, Fort Worth Division. Today

7 is Thursday, February 1st, 2024. We're now on record at

8 11:18 a.m.

9 Will the attorneys please introduce themselves

10 for the record.

11 MR. BARTOS: Jeffrey Bartos, counsel for

12 the APFA defendants.

13 MS. BRODERICK: Charlette Broderick,

14 counsel for APFA.

15 MS. PHILLIPS: Kerri Phillips, counsel

16 for Bob Ross.

17 (Witness sworn by reporter)

18 ROBERT ROSS,

19 having been first duly sworn, testifies as follows:

20 EXAMINATION

21 BY MR. BARTOS:

22 Q. Good morning, Mr. Ross. Can you tell me what

23 you did to prepare for today's deposition.

24 A. What do you mean by that?

25 Q. Did you do anything? Review documents? Talk

9

1 to anybody to get ready --

2 MS. PHILLIPS: Objection --

3 Q. -- for today's deposition?

4 MS. PHILLIPS: -- privileged.

5 A. I --

6 Q. And just for -- I'm not asking you about any

7 conversations with your lawyer.

8 A. -- simply know what I know, and that's my

9 preparation.

10 Q. Okay. Have you ever been deposed in a lawsuit

11 before?

12 A. No.

13 Q. Have you ever been a party to a lawsuit

14 before?

15 A. No.

16 Q. Can you describe, briefly, your educational

17 experience following high school.

18 A. I have two or three years of college and a

19 military background.

20 Q. Okay. And did you do the college immediately

21 after high school, or did you do military first?

22 A. During -- during military service --

23 Q. Okay.

24 A. -- and after.

25 Q. Okay. Can you just briefly describe your

APPENDIX 7

Case 4:22-cv-00343-Y Document 206 Filed 02/16/24 Page 10 of 73 PageID 4806
Robert Ross 2/1/2024

4

STRYKER REPORTING SERVICES (817) 494-0700

10

1 employment history from graduating high school up until

2 when you started working at American Airlines.

3 A. I held several -- several jobs after high

4 school. I joined the military in 1978. While in the

5 military, I learned to fly aircraft. And I have a

6 charter boat captain's license, so I worked for --

7 (Reporter clarifying)

8 A. Charter boat captain's license. After leaving

9 the military in 1982, I did several side jobs and got

10 hired by American Airlines in 1983.

11 Q. Okay. And what position did you have when you

12 were hired by American Airlines in 1983?

13 A. Flight attendant.

14 Q. Okay. And have you worked continuously for

15 American Airlines from then until now?

16 A. I took a couple of small three-month leaves.

17 Q. Okay. Aside from leaves, that's been your

18 employment?

19 A. It's been my employment for 40 years.

20 Q. Okay. Okay. Have you ever received any

21 education or training in being a reliability engineer?

22 A. What is a reliability engineer?

23 Q. I'm just asking if you've ever had any kind of

24 training in being a reliability engineer.

25 A. I would have to know what a reliability --

11

1 MS. PHILLIPS: Objection; relevance.

2 A. -- engineer is because trainings that I've had

3 over the course of my lifetime may qualify for that.

4 Q. Okay. All right. And where do you live,

5 Mr. Ross?

6 A. I live in California.

7 Q. And what -- what city or what metro area?

8 A. I live in the Sacramento metro area, El Dorado

9 County.

10 Q. And, as an American Airlines flight attendant,

11 you have a base for work purposes. Is that right?

12 A. I do.

13 Q. And your -- your base is here in

14 Dallas-Fort Worth. Is that right?

15 A. Unfortunately, they closed our San Francisco

16 base. So now, yes, I am based here.

17 Q. Okay. All right. Are you married?

18 A. I am.

19 Q. And you have two children. Is that right?

20 A. Yes.

21 Q. Can you tell me how old they are.

22 A. 20 and 22.

23 Q. Now, are they in college?

24 A. Yes, they are.

25 Q. Can you tell me when they started college and

12

1 what schools they go to.

2 A. My son started college in 2021, and he goes to

3 Sacramento State now. He attended two years at

4 community college. He's now at Sacramento State. My

5 daughter joined college in 2022. She went to University

6 of North -- North Dakota, Jamestown, and is now

7 attending Sacramento Community College, going on to

8 Sacramento State, Chico.

9 Q. Okay. And just for my -- so I can have this

10 correct in my head, is the 22-year-old your daughter or

11 your son?

12 A. The 22-year-old is my son.

13 Q. Okay. Okay. So your son -- just for the

14 dates, your son began college in the year 2021 and your

15 daughter in the year 2022?

16 A. No. I believe my son started college --

17 correction -- in 2020. He graduated high school in the

18 spring of 2020 --

19 Q. Okay.

20 A. -- and started high school then in August of

21 2020.

22 Q. Okay.

23 A. So that's a correction.

24 Q. Okay. So your son just -- I know it's not

25 something you -- I -- as a parent I mix up those dates.

13

1 So your son, as best you recall, began college

2 in 2020?

3 A. 2020.

4 Q. Your daughter, as best you can recall, began

5 in 2022?

6 A. I believe that's a correction as well. She

7 attended college in August of '21.

8 Q. Okay.

9 A. She graduated high school in June of '21 --

10 Q. Okay.

11 A. -- and then college in August.

12 Q. Fair enough. Okay. Thank you. Appreciate

13 it.

14 A. Again, correction.

15 Q. And if at any point in this deposition you

16 recall, maybe you misspoke or had a correction, please

17 let me know.

18 A. Uh-huh.

19 Q. And have you ever been subjected to any

20 disciplinary -- or discipline from American Airlines?

21 A. No.

22 Q. Okay. Starting from when you first came to

23 work for American, you've been a flight attendant the

24 whole time -- is that right -- at American?

25 A. At American Airlines, yes.

APPENDIX 8

*****

Case 4:22-cv-00343-Y Document 206 Filed 02/16/24 Page 11 of 73 PageID 4807
Robert Ross 2/1/2024

7

STRYKER REPORTING SERVICES (817) 494-0700

22

1 A. There were a lot of people that were --

2 MS. PHILLIPS: So I'm going to object to

3 all of this. This is all hearsay.

4 Q. Okay. The -- so just for clarity, you -- you

5 don't recall exactly if this document Exhibit 1 came

6 from you in the document production in this case. Is

7 that right? Or did it?

8 A. I don't recall if it did or it didn't. I

9 don't recall a document looking like this.

10 Q. Okay.

11 A. I don't recall what the word "pegged" mean in

12 my mind back then.

13 Q. Okay.

14 A. But, in today's talk, "pegged" to me does not

15 mean "selected."

16 Q. Okay. If we go back to the first page of the

17 document, and I'd like you to look down about halfway

18 down that says -- there is a heading for "Melissa," and

19 it says, "Probably not everyone on this thread is going

20 to be my friend anymore but Bob until you make it right

21 with Kiri....it's just not right. I'm pissed you played

22 wrong." Do you see that?

23 A. I see it.

24 Q. Okay. And then there is a response from

25 "Bob." Right? And that's -- that's you. Right?

23

1 A. I'm assuming.

2 Q. Okay. Under "Bob," it says, "I did nothing

3 wrong to Kiri at the BOD meeting or since." Do you see

4 that?

5 A. Yes.

6 Q. And then further down in that text it says, "I

7 had good places and perfect appointments for both of you

8 but they were to be doled out at my convenience when the

9 time was right. I'm saddened this turned out this way

10 but perhaps it's best. Good luck to us all, I have a

11 much harder job to do now." Do you see that?

12 A. I see that.

13 Q. Okay. Do you recall --

14 MS. PHILLIPS: Objection.

15 Q. -- making that communication to Ms. --

16 Ms. Chinery?

17 MS. PHILLIPS: Objection; hearsay.

18 Objection; form.

19 Q. You can still answer the question.

20 A. I read that as somebody who may have been

21 considered for positions or -- or whatever, but -- but,

22 due to circumstance, those were no longer viable

23 options. I don't know the exact state of mind at the

24 time.

25 Q. But you had some online conversation with

24

1 Melissa Chinery at around the time of your very first

2 day in office. Correct?

3 MS. PHILLIPS: Objection --

4 A. I don't -- don't recall having that.

5 MS. PHILLIPS: -- hearsay.

6 Q. Okay. Do you recall arguing in your

7 Article VII hearing that that very phrase that she used,

8 "I will work tirelessly" --

9 MS. PHILLIPS: Objection; hearsay.

10 Q. -- "I will work tirelessly" -- let me just

11 find the right word -- "to make sure you are out of

12 office," was -- was used in the questioning of

13 Ms. Chinery during your Article VII hearing?

14 A. Possibly.

15 Q. In fact, you put it in your posthearing brief

16 as describing part of her motivation.

17 MS. PHILLIPS: Objection; hearsay.

18 Q. Do you remember that?

19 A. I don't remember what all was in my closing

20 argument.

21 Q. Uh-huh. Okay. If we wanted to see what was

22 said or not said in your Article VII arbitration, I

23 assume we could just look at the transcript. Right? Is

24 that right?

25 MS. PHILLIPS: Objection; hearsay.

25

1 MR. BARTOS: Okay. You can --

2 A. As far as I know --

3 MR. BARTOS: Just on the record, you can

4 object all you want. That's not hearsay. But go ahead.

5 Go ahead.

6 MS. PHILLIPS: You haven't turned over

7 all the documents from the arbitration.

8 A. I was waiting for somebody to --

9 Q. So I think I was -- let me retract that

10 question.

11 MS. PHILLIPS: Would you like a break?

12 THE WITNESS: I would like a break.

13 MS. PHILLIPS: All right. Let's take a

14 break.

15 THE VIDEOGRAPHER: We're off record at

16 11:38 a.m.

17 (Recess from 11:38 a.m. to 11:55 a.m.)

18 (Deposition Exhibit 2 marked)

19 THE VIDEOGRAPHER: We're back on record

20 at 11:55 a.m.

21 BY MR. BARTOS:

22 Q. So, Mr. Ross, when we took a break, we had

23 been -- I had asked you some questions about your

24 communications with Melissa Chinery around the time of

25 your election to president.

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1 And just maybe to refresh your recollection, I

2 would like you to look at Exhibit 2, which is in front

3 of you. It's portions of a transcript. If you could

4 just take a look, and let me know when you've had a

5 chance to look at it.

6 A. (Reading).

7 Q. Have you had a chance to look that over?

8 A. I've skimmed it, yeah.

9 Q. Okay. And I'll just represent to you this is

10 an excerpt from the transcript of your Article VII

11 arbitration dated, for this portion, November 18th,

12 2021, and -- and beginning on page 382 and running

13 through page 384.

14 You had a representative in your Article VII

15 arbitration. Right?

16 A. Yes.

17 Q. Is that Gina Guidry?

18 A. Yes.

19 Q. Okay. And, during your Article VII

20 arbitration, Ms. Guidry cross-examined some witnesses.

21 Is that right?

22 A. I believe so.

23 Q. Okay. And you also questioned some witnesses

24 yourself. Right?

25 A. If I recall.

27

1 Q. Okay. And, again, I'm just representing for

2 the record that this portion starting on page 382 is the

3 testimony of Melissa Chinery, being questioned by

4 Ms. Guidry.

5 Do you remember Melissa Chinery testifying in

6 your arbitration?

7 A. She did testify in the arbitration.

8 Q. Okay. All right. And I want to see if this

9 helps refresh your recollection about the topic we were

10 discussing.

11 Do you see at the very top of page 382, on

12 line 4, Ms. Guidry asking, "Are you familiar with I will

13 work tirelessly to make sure you are out of office; are

14 you familiar with that?"

15 And the answer is, "I wrote it." Do you see

16 that?

17 A. I see that.

18 Q. Okay. Does that help refresh your

19 recollection about the exchange that we looked at on

20 Exhibit 1?

21 A. No, because this document here doesn't state

22 who made that answer.

23 Q. Okay. I guess we could look at the whole

24 transcript and figure that out, couldn't we?

25 A. If you'd like.

28

1 Q. Okay. The -- do you recall there being

2 questioning of Ms. Chinery in your Article VII

3 arbitration about the meaning and -- and purpose of why

4 she wrote, "I will work tirelessly to make sure you are

5 out of office"?

6 A. I recollect that there were discussions during

7 Article VII hearings having to do with posts and

8 behaviors of Melissa Chinery. I don't recall exactly

9 the context.

10 Q. Okay. But one of those posts was saying, "I

11 will work tirelessly to make sure you are out of

12 office." Right?

13 A. She did make that comment.

14 Q. Okay. Okay. And your view was that the

15 charges that she filed against you were part of that

16 effort to work tirelessly to make sure you were out of

17 office. Right?

18 A. That would be an opinion.

19 Q. I'm asking your opinion.

20 A. She filed charges years after I was out -- out

21 of office.

22 Q. I'm asking your opinion. Yeah.

23 A. And I don't have an opinion what her motive

24 for filing Article VII charges are.

25 Q. Well, you argued to the --

29

1 MS. PHILLIPS: This is --

2 Q. You argued to the arbitrator --

3 MS. PHILLIPS: Objection; form.

4 Q. You argued to the arbitrator that's why she

5 filed the charges. Do you remember that?

6 A. I recall there being lots of reasons she gave

7 for filing Article VII.

8 Q. Okay. And I'm asking about do you recall you

9 and your representatives arguing that this stemmed from

10 her position she took, back on your very first or second

11 day in office, that she was going to work tirelessly to

12 make sure you were out of office.

13 A. I recall that comment back then in 2016, and

14 she was successful up until 2018 to make sure I was out

15 of office, and at that point she had fulfilled her

16 solemn swear of what she would do. That was my opinion.

17 Q. All right. Now, when you became president of

18 APFA, could you describe generally what your

19 responsibilities were in that capacity.

20 MS. PHILLIPS: Objection. He's not here

21 to testify as to a president's responsibilities. He's

22 here to testify as to his experiences, elections.

23 Q. You can still answer the question.

24 A. It's the president's responsibility to head

25 and lead the organization both internally and

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1 externally.

2 Q. Did you have an understanding at the time you

3 were a president that you had a fiduciary obligation or

4 fiduciary duty to the organization?

5 A. In broad terms, that's -- you do.

6 Q. Okay. And would you agree or did you have an

7 understanding that the members you represent had a right

8 to challenge your decisionmaking and contest your --

9 your conduct as president? That was one of their rights

10 as members?

11 A. As U.S. citizens, you have that right.

12 Q. And, as union members, they have that right.

13 Isn't that so?

14 A. That would include union members.

15 Q. All right. Now, you were elected or took

16 office in 2016, correct?

17 A. Yes.

18 Q. Okay. And there came a point where a

19 complaint was made to the Department of Labor about the

20 election that you won. Is that correct?

21 A. There was a complaint to the Department of

22 Labor.

23 Q. Okay. And the labor department concluded that

24 the election -- from its point of view, the election

25 needed to be rerun. Is that right?

31

1 MS. PHILLIPS: Objection; form.

2 A. Can you state that again?

3 Q. Sure. Do you recall the labor department

4 taking the position that the election had to be run over

5 again?

6 A. I do.

7 Q. Okay. And APFA, in fact, agreed to do a rerun

8 election. Correct?

9 A. APFA at the time had no choice because it was

10 called upon by the Department of Labor.

11 Q. Okay. But you didn't wait for the Department

12 of Labor to sue you. You agreed to do a -- to do a

13 rerun. Right?

14 A. I don't recall the Department of Labor ever

15 threatening to sue us.

16 Q. Okay. But, in any event, APFA was going to do

17 a rerun election in 2018. Correct?

18 A. In 2018 the Department of Labor ordered a

19 rerun election.

20 Q. Okay. All right. All right. Now, the -- and

21 I just want to get the dates correct.

22 You resigned as president in March of 2018.

23 Is that right?

24 MS. PHILLIPS: Objection; form, all of

25 these questions.

32

1 A. It was -- I'm slowing down on my dates too

2 because I got my kids' college --

3 Q. Got it.

4 A. -- messed up.

5 Q. Understood.

6 A. Yes.

7 Q. Okay. And subsequently you ran for base

8 president of San Francisco. Is that right?

9 A. Subsequently, yes.

10 Q. And you were elected base president for

11 San Francisco, correct?

12 A. Yes.

13 Q. And was that approximately 2020?

14 A. That's a good question. Was it 2020, or was

15 it 2021? I don't recall which one of those two years

16 that was.

17 Q. Fair enough. And just for the dates, you

18 then later resigned as base president following the

19 Article VII arbitration. Correct?

20 MS. PHILLIPS: Objection; form.

21 A. I resigned under duress with a letter written

22 to the Union stating so.

23 Q. Okay. And just a couple questions about your

24 understanding of the Union's structure.

25 The president is elected by the membership

33

1 directly. Correct?

2 MS. PHILLIPS: Objection; form.

3 A. At APFA it is.

4 Q. At APFA. That's what I'm asking.

5 A. Not all unions.

6 Q. I'm only -- these are only about APFA, but

7 feel free if you have any -- if it's unclear.

8 And at APFA the board of directors -- each

9 base president is elected by -- by the base that they

10 represent. Correct?

11 MS. PHILLIPS: Objection. He's not here

12 to testify on -- on the APFA procedures.

13 Q. You can answer the question.

14 A. The base presidents are elected by their base

15 membership.

16 Q. Okay. And the base presidents make up the

17 board of directors. Correct?

18 A. They make up the voting board of directors.

19 Q. Okay. So the national officers, are they on

20 the board of directors?

21 A. They are.

22 Q. Okay. But they don't have a vote. Is that

23 right?

24 A. That's correct.

25 Q. Okay. You would say they have a voice but not

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1 a vote. Is that correct?

2 A. I stand corrected. The national president has

3 a vote on the board in the event of a tie without an

4 abstention.

5 Q. Fair enough. And one of the obligations of

6 the president is to carry out duties that the board of

7 directors requests them to carry out. Is that correct?

8 A. I'm not sure I understand. That's vague.

9 Q. Okay. Well --

10 A. If the board of directors told a national

11 president to steal from a bank, they would not be

12 obligated to follow the board of directors.

13 Q. Fair enough. If I wanted to find the relative

14 responsibilities of the board of directors and the

15 president, would I look in the APFA Constitution?

16 A. Yes.

17 Q. Okay. All right. Now, while you were

18 president, do you recall that APFA worked with an

19 accounting firm called Wood, Stephens & O'Neil?

20 A. That name sounds familiar.

21 Q. Okay. Did you -- as president did it fall

22 within your responsibilities or authority to deal

23 directly with Wood, Stephens, O'Neil, or was that

24 somebody else's responsibility?

25 A. That was generally someone else's

35

1 responsibility.

2 Q. Okay. Do you recall, during your term as

3 president, ever interact -- ever interacting personally

4 with anyone from that firm, Wood, Stephens, O'Neil?

5 A. I do not recall.

6 Q. Okay. Do you ever remember reviewing, while

7 president, just in that 2016-2018 time period, reviewing

8 any of the work product of Wood, Stephens, O'Neil?

9 A. I don't recall being qualified to review or

10 critique an accountant's work.

11 Q. Fair enough. Fair enough. Did you, in your

12 capacity as president, ever make any effort to replace

13 that accounting firm as the outside accountant for APFA?

14 A. I don't recall that being part of my authority

15 or department's responsibility.

16 Q. Okay. But, leaving aside whether it was part

17 of your authority, you never tried to replace that

18 accounting firm?

19 MS. PHILLIPS: Objection; form. And

20 objection; asked and answered.

21 A. I do not recall personally trying to replace

22 that accounting firm.

23 Q. Okay. All right. Now, you were elected and

24 took office in April of 2016.

25 Would it be fair to say that by the latter

36

1 part of 2017 you were having a difficult relationship

2 with the board of directors of APFA?

3 A. I can't attest to that. That would be a vague

4 summary.

5 Q. Do you recall, in the latter part of 2017,

6 members of the board of directors putting forth

7 statements that they had a lack of trust in you as

8 president?

9 A. I do not recall a direct communication.

10 MS. PHILLIPS: Objection. This is

11 hearsay. He can't testify to other people's statements.

12 Q. Are you familiar with a term "full operational

13 integration"?

14 A. I am familiar with FOI.

15 Q. Okay. And you remember that FOI stands for

16 "full operational integration." Right?

17 A. Yes.

18 Q. Okay. And, just broadly speaking, that had to

19 do with the integration of the legacy US Airways and the

20 legacy American operations under your contract.

21 Correct?

22 A. I think that would be too vague and simple of

23 an explanation of what FOI is.

24 Q. Okay. Could you explain what FOI was, to

25 your -- to your understanding?

37

1 A. FOI was, to my recollection, was a date, a

2 date at which -- full operational integration was when

3 all flight attendants were under the same operating

4 system, under the same scheduling management platform.

5 Q. Okay.

6 A. Would be still a broad statement.

7 Q. I appreciate that. That's more accurate than

8 what I said.

9 Do you recall there being a grievance filed by

10 you, as president, involving whether or not American had

11 met its contractual obligation with respect to FOI?

12 A. I don't recall exactly what the terms of that

13 grievance was, but there was a grievance filed over the

14 date of FOI.

15 Q. And do you recall that, in the context of that

16 grievance, you eventually reached a settlement agreement

17 with American Airlines to settle that grievance?

18 A. We did.

19 MS. PHILLIPS: My client's going to take

20 a break now.

21 MR. BARTOS: We're not going to keep

22 breaking.

23 MS. PHILLIPS: My client is going to take

24 a break now.

25 MR. BARTOS: Okay. We're going to -- we

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1 need to proceed with this deposition. We'll take a

2 break now.

3 MS. PHILLIPS: Yeah, my client's going to

4 take a break now.

5 MR. BARTOS: But we're not going to keep

6 breaking and drag this out.

7 MS. PHILLIPS: We're in between

8 questions. My client is going to take a break.

9 THE VIDEOGRAPHER: We're off the record

10 at 12:11 p.m.

11 (Recess from 12:11 p.m. to 12:19 p.m.)

12 THE VIDEOGRAPHER: We're back on record

13 at 12:19 p.m.

14 BY MR. BARTOS:

15 Q. Now, Mr. Ross, when we took a break, I was

16 asking you a little bit about the FOI grievance.

17 And, at the risk of repeating myself, do you

18 recall settling the FOI grievance in 2017?

19 A. I recall an FOI grievance in 2017, if that's

20 the year it was.

21 Q. Okay. And do you recall reaching a settlement

22 that you signed with the Company?

23 A. APFA reached a settlement.

24 Q. Okay. And who signed it on behalf of APFA?

25 A. All settlements are signed by the national

39

1 president.

2 Q. Okay. So you signed that settlement?

3 A. If my name is on it, I assume.

4 Q. Well, no one else was president at that time.

5 Right? It must have been you.

6 A. Well, there were -- there were two agreements

7 made.

8 Q. Okay. I'm talking about the first one. If

9 you recall.

10 A. From what I recall, the committee who grieved

11 that FOI, number one, came to an agreement, of which

12 then they bring it to the president to sign.

13 Q. Okay. And the president signed the first

14 agreement. Correct?

15 A. The president was directed by counsel to sign.

16 Q. Okay. And, following that signing of that

17 agreement, there was a dispute or controversy with the

18 board of directors, who wanted to undo the settlement

19 and start over. Is that right?

20 MS. PHILLIPS: Objection; form.

21 Q. Do you remember that?

22 A. I remember the board of directors having an

23 issue with counsel that was demanding at the time that

24 it be signed prior to being discussed at a board

25 meeting.

40

1 Q. Okay. And the board of directors then went

2 back to the Company to renegotiate the settlement.

3 Right?

4 A. They did.

5 Q. Okay. And, in your recollection, there was an

6 expression by the board of a lack of trust in you, as

7 president, given what had transpired. Isn't that right?

8 A. I don't agree with that.

9 Q. Okay. So, despite the fact that they rejected

10 the settlement you had negotiated and went back to

11 renegotiate a new one, you felt that they trusted you?

12 MS. PHILLIPS: Objection; form.

13 Q. Is that right?

14 A. I guess I don't understand your question.

15 Because an agreement had to be renegotiated, you're

16 inferring that that meant they distrusted me?

17 Q. I'm just asking a question.

18 A. Then I don't understand your question.

19 Q. Okay. Now, the APFA Constitution has a

20 provision for the recall or removal of national

21 officers. Right?

22 MS. PHILLIPS: Objection; form.

23 A. Can you repeat that?

24 Q. Sure. Let me restate it, maybe.

25 APFA has a Constitution. Correct?

41

1 A. We have established that. Yes.

2 Q. Okay. And there is a provision in the

3 Constitution for the election of national officers

4 directly by the membership. Right?

5 A. Yes.

6 Q. Okay. And there is also a provision in the

7 Constitution for a process by which a duly elected

8 national officer can be removed from office. Right?

9 A. You'd have to explain to me what your version

10 of "duly elected" is, because national officers are not

11 duly elected.

12 Q. Okay. Let me take out the word "duly."

13 Do you recall there is a provision in the

14 Constitution by which an elected national president can

15 be removed from office under the Constitution?

16 A. There are provisions for a change of a

17 national president.

18 Q. Okay. And one way for there to be a change is

19 for two-thirds of the board of directors to vote on

20 having a recall election. Is that right?

21 MS. PHILLIPS: Objection; form.

22 A. I don't recall exactly what the wording is in

23 that language.

24 Q. Okay. All right. Do you recall there is a

25 position -- a way by which the board of directors can

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1 initiate a recall election? Do you remember that?

2 A. There is a process.

3 Q. Okay. Okay. For the board of directors to

4 start that, right?

5 A. There is a process for the board of directors

6 to start a process, provided that there is the means to

7 do so.

8 Q. Okay. And there is a process by which members

9 can initiate a recall election by submitting a

10 sufficient number of names on a petition. Isn't that

11 right?

12 MS. PHILLIPS: Objection; form.

13 Q. If you remember.

14 A. I don't recall or I don't remember exactly

15 what that process is.

16 Q. Okay. Do you remember generally that members

17 can initiate a recall process?

18 A. I believe they can.

19 Q. Okay. And, if we wanted to see what the exact

20 terms of it was, we could just look at the APFA

21 Constitution. Right?

22 MS. PHILLIPS: Objection; form.

23 A. That would be a better answer than mine.

24 Q. Okay. Now, do you remember in early 2018

25 there was a board of directors meeting of APFA, which

43

1 you attended, in Charlotte, North Carolina?

2 A. I attended a lot of board of directors

3 meetings. You're talking about a specific board

4 meeting? Convention? There are differences between

5 them.

6 Q. Okay. Sure. My fault for a bad question.

7 Do you remember the board of directors

8 convention in the spring of 2018 in Charlotte,

9 North Carolina?

10 A. I do.

11 Q. Okay. And that -- part of what happened in

12 that convention or during that convention was you

13 executed the Transition Agreement by which you left

14 office as president. Right? Do you remember that?

15 A. I'm not comfortable with your phrase of I

16 executed --

17 Q. Okay.

18 A. -- a Transition Agreement.

19 Q. All right. Let's back up.

20 You recall being at the board of directors

21 convention in the February/March 2018. Is that right?

22 A. Yes.

23 Q. Okay. And you were there in Charlotte?

24 A. Yes.

25 Q. Okay. And do you recall that there was an

44

1 open discussion by members about having a recall --

2 having recall petitions to present to the board?

3 A. That's vague to me. I don't know what you

4 mean by an "open discussion" with members.

5 Q. Okay. Do you remember being aware that there

6 was a recall petition that was going to be submitted to

7 the board of directors at that meeting?

8 A. I vaguely recall there was a threat. There

9 was a threat given of a recall petition action by

10 members.

11 Q. Do you remember a discussion about bringing

12 petitions in red wagons?

13 MS. PHILLIPS: Objection; leading.

14 Q. Do you remember that?

15 A. I do not remember a discussion at that board

16 meeting about bringing petitions in a red wagon.

17 Q. Okay. All right. And who is Mark Richard?

18 A. Mark Richard was the counsel, in-house -- or

19 he was the -- he was one of the counsels for APFA at the

20 time.

21 Q. Okay. And Mr. Richard was at that same board

22 convention in Charlotte. Right?

23 A. I believe so.

24 Q. Okay. And there came a point in time where

25 you entered into a Transition Agreement between you and

45

1 the APFA. Do you remember that?

2 MS. PHILLIPS: Objection; form, leading

3 the witness.

4 A. Can you repeat that because it was --

5 Q. Do you remember signing a document called the

6 Transition Agreement?

7 A. I remember signing a document called the

8 Transition Agreement. I don't recall signing it at

9 that.

10 MR. BARTOS: Okay. Can we mark this as

11 Exhibit 3, please.

12 (Deposition Exhibit 3 marked)

13 Q. If you can take a look at that. Please let me

14 know when you've had a chance.

15 A. (Reading).

16 Q. Have you seen this document before?

17 A. I've seen one similar.

18 Q. Okay. Is that your signature on the third

19 page?

20 A. This is a photocopy. I can't attest that that

21 is my signature. But it appears there is a signature

22 with my name there, yes.

23 Q. You signed a document that you referred to in

24 your lawsuit as the Transition Agreement. Correct?

25 A. Correct.

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1 Q. You signed it on March 1st, 2018. Is that

2 right?

3 A. I don't recall the exact date I signed it.

4 Q. You signed it during the Charlotte board of

5 directors convention. Right?

6 MS. PHILLIPS: Objection; leading.

7 A. I don't recall the exact date that I left that

8 convention because it was -- there was a lot going on.

9 So, if it was March 1st, then that's the date. I

10 recalled it was -- it was effective March 2nd, I

11 thought, but this says March 1st on the bottom here. So

12 I'm not sure what date it was.

13 Q. All right. Let's just -- let's just back up.

14 So you -- you -- you will remember or you do

15 remember that you signed a document called Transition

16 Agreement. Right?

17 MS. PHILLIPS: Objection; leading the

18 witness.

19 Q. You do remember signing a Transition

20 Agreement?

21 A. I remember signing a Transition Agreement. I

22 don't recall the -- the date.

23 Q. Okay. And you indicate that on page 3 that

24 looks like your signature, but you can't say for sure

25 under oath today that that's the document you signed.

47

1 Is that correct?

2 MS. PHILLIPS: Objection; asked and

3 answered.

4 A. That's correct.

5 Q. Okay. You're suing the APFA for violating the

6 Transition Agreement that you did sign. Is that right?

7 Are you aware of that?

8 A. I am aware that that is one of the charges.

9 Q. Okay. Is this document, Exhibit 3, the

10 Transition Agreement that you're asserting was violated?

11 A. I have not read every word in it.

12 Q. Okay. Please do. And let me know.

13 A. I'm a slow reader.

14 Q. Take your time.

15 A. (Reading).

16 Q. Have you had a chance to look it over, sir?

17 A. I have.

18 Q. To the best of your recollection, is that the

19 Transition Agreement that you signed --

20 MS. PHILLIPS: Objection; hearsay.

21 Q. -- on March 1, 2018?

22 MS. PHILLIPS: Objection; hearsay.

23 A. From my recollection, I would have to have it

24 next to the one that I possessed on that day to make

25 sure that no words in here were changed.

48

1 Q. Fair enough. Let me ask you a question. Do

2 you recall submitting an affidavit, or more than one

3 affidavit in this case, in which you attached a copy of

4 what you said was the Transition Agreement? Do you

5 remember that?

6 A. I believe I did.

7 Q. All right. And, to the best of your

8 recollection, would the copy of the Transition Agreement

9 you submitted with your affidavit be the actual

10 Transition Agreement that you signed?

11 A. I would -- I would have to see that, the one

12 that I actually --

13 Q. All right. I'm going to just --

14 MR. BARTOS: Off the record for a second.

15 THE VIDEOGRAPHER: We're off record at

16 12:37 p.m.

17 (Recess from 12:37 p.m. to 12:38 p.m.)

18 THE VIDEOGRAPHER: We're back on record

19 at 12:38 p.m.

20 BY MR. BARTOS:

21 Q. I want to leave aside that particular exhibit

22 right now. I'm not asking you questions about that

23 exhibit. Okay.

24 I just want to ask you about the occasion on

25 which you signed the Transition Agreement. All right.

49

1 You were in Charlotte, North Carolina. Correct?

2 A. Correct.

3 Q. All right. And Mark Richard facilitated the

4 signatures of you and the members of the board of

5 directors. Is that right?

6 MS. PHILLIPS: Objection; leading.

7 A. I don't know who facilitated it. I was never

8 in the same room when all of that was done.

9 Q. Okay. So, at the time when you were

10 considering or looking at the Transition Agreement in

11 2018, you were not in the same room as the board of

12 directors. Is that right?

13 A. I requested several times to be in the

14 board -- room with the board of directors, and I was not

15 allowed.

16 Q. Okay. So they were -- the board of directors

17 was in one location in the same hotel, I presume, and

18 you were in another location. Is that right?

19 A. That's correct.

20 Q. Okay. And was Mark Richard going between you

21 in your location and the board in their location? Is

22 that how it worked?

23 A. It was my understanding that that was -- that

24 was --

25 Q. Well, how did it come to you? Who presented

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1 you with a draft of the Transition Agreement? Was it

2 Mark?

3 A. I don't recall when --

4 MS. PHILLIPS: Objection; leading.

5 A. -- he actually did the draft or not. But it

6 was -- he was my counsel. And we had Mady Gilson there

7 too. And I don't know which one of them actually

8 presented me with the draft.

9 Q. So Ms. Gilson is or was a lawyer also?

10 A. She was.

11 Q. Okay. So one of the lawyers presented you

12 with a document that was a draft of the Transition

13 Agreement. Is that fair to say?

14 A. Yes.

15 Q. Okay. And at no point between did you have a

16 direct discussion or meeting with the board of directors

17 about any of the terms of the Transition Agreement,

18 where you and the board were in the same room. Is that

19 right?

20 A. That is correct. I was never allowed to be in

21 the same room with the board of directors, after several

22 requests.

23 Q. Okay. After you signed the document while you

24 were there in Charlotte, did Mr. Richard or anybody else

25 give you a copy of the fully executed Transition

51

1 Agreement, the fully signed?

2 A. I don't recall. I know there were other

3 people that had to sign nondisclosures because they knew

4 about the negotiations, but I don't recall when the

5 actual document was handed.

6 Q. So, when you left Charlotte, did you have a

7 copy of the fully signed Transition Agreement with you?

8 MS. PHILLIPS: Objection; asked and

9 answered.

10 A. I don't recall.

11 Q. Okay. Okay. Did you read the whole document

12 before you signed it?

13 A. To my knowledge, that was my practice.

14 Q. Okay. All right. After you signed the

15 Transition Agreement -- well, let me back up a second.

16 The Transition Agreement that you signed --

17 and I'm not asking you to say that this exhibit that's

18 in front of you is the one that you signed. But the one

19 you did sign had certain provisions for your receipt of

20 full salary and benefits. Is that right?

21 MS. PHILLIPS: Objection; leading.

22 A. Repeat that.

23 Q. Okay. I'm not -- I'm not asking you about the

24 exhibit in front of you because you're not sure that

25 that's the one you signed. So --

52

1 A. Okay.

2 Q. -- I'm just asking your memory.

3 One of the basic terms of the Transition

4 Agreement was you were going to leave office. Correct?

5 A. Correct.

6 Q. Okay. And another one of the terms was you

7 were going to be paid certain salary and benefits

8 running through the date specified in the document? I'm

9 not trying to --

10 A. Correct.

11 Q. Okay. And what I really want to understand is

12 when you got those payments. Right. Your secretary --

13 your treasurer at that time was whom?

14 A. Eugenio Vargas.

15 Q. Did Mr. Vargas -- was he responsible for

16 calculating and paying you the amounts due --

17 MS. PHILLIPS: Objection.

18 Q. -- after the Transition Agreement was signed?

19 MS. PHILLIPS: Objection; form.

20 A. After the Transition Agreement was signed, I

21 was no longer the president or in the building or a part

22 of any of Eugenio Vargas's responsibilities as

23 treasurer. I did not receive any payments from Eugenio

24 Vargas or APFA on March 1st or 2nd; so, after that, I

25 would have no idea who was responsible for.

53

1 Q. You received the payments under the Transition

2 Agreement in April of 2018. Right?

3 A. I don't recall the exact date that I received

4 that.

5 Q. Leaving aside whether you recall the exact

6 date, does it sound correct to you that it was in April

7 of 2018?

8 A. There were several disbursements made; so I

9 honestly don't know exactly which disbursement we're

10 talking about.

11 MR. BARTOS: Okay. If we could mark

12 as -- what is our next exhibit number? I'm sorry.

13 Mark it as Exhibit 4.

14 (Deposition Exhibit 4 marked)

15 Q. And, if you'll look, Exhibit 4 should have two

16 sides to it.

17 A. (Reading).

18 Q. Have you had a chance to look at Exhibit 4?

19 A. I have.

20 Q. Okay. And looking -- directing your attention

21 to the page that has the APFA letterhead at the top and

22 is dated March 2nd, 2018, do you see that?

23 A. Uh-huh.

24 Q. Okay. And it's directed to you from

25 Mr. Vargas. Right?

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1 A. Yes.

2 Q. Okay. And at the bottom -- or the bottom of

3 the body of it, there is a signature line, Robert Ross

4 National President, and there is a signature. Is that

5 your signature?

6 A. I can't attest yes or no.

7 Q. Okay. Let me just represent to you that this

8 document came from the plaintiffs, in your document

9 production.

10 Do you recall having this document in your

11 possession at some point?

12 MS. PHILLIPS: Objection; hearsay.

13 Q. Do you recall having this document in your

14 possession, ever?

15 A. I can't say yes or no. I've had a lot of

16 documents.

17 Q. Okay. If you would look at the second page,

18 which has a block letter A on the top of it, if you flip

19 it over, do you see that page? And at the bottom there

20 is a number, says Ross/Vargas 000460. Do you see it?

21 A. Uh-huh.

22 Q. Okay. And there is typed text and then there

23 are some markings with some arrows and handwriting. Do

24 you see that?

25 A. Yes.

55

1 Q. Is that your handwriting?

2 A. I don't know.

3 Q. Does it appear to you to be your handwriting?

4 MS. PHILLIPS: Objection; leading.

5 A. It appears pretty good to be my handwriting.

6 Q. Okay. Is it your testimony that it's not your

7 handwriting?

8 A. No, it's not my testimony one way or the

9 other.

10 MS. PHILLIPS: Objection; leading,

11 speculation.

12 A. What year was this? 2018.

13 Q. Let me just ask. The -- in the handwritten

14 portions at the very bottom, there is a notation that

15 seems to say "with stipends" and then some numbers and

16 letters. Do you see that at the very bottom?

17 A. I do.

18 Q. And then, if you look up above, the next

19 handwriting says "paid 3/29/18." Do you see that?

20 A. Where are you referring to? "Paid 3/29/18."

21 Here. Okay.

22 Q. Yeah. Is that -- is that your handwriting?

23 MS. PHILLIPS: Objection; asked and

24 answered.

25 A. I honestly don't know if that's my handwriting

56

1 or not.

2 Q. Okay.

3 A. I'm trying to refamiliarize myself with this

4 whole document.

5 Q. Okay. Do you -- well, this is a document that

6 you produced. I'm trying to figure out where it came

7 from.

8 A. It may have.

9 MS. PHILLIPS: Objection.

10 Q. Is it, in fact, the case that you were paid

11 the -- the amount listed, the bimonthly pay, leading to

12 4,495.58, on March 29th, 2018?

13 A. 4,495.58.

14 Q. The dollar amount there on the --

15 A. In the box?

16 Q. Yeah.

17 A. Okay. And what's your question again?

18 Q. Were you paid -- did you get paid out on

19 March 29th, 2018?

20 A. I'd have to go back into my accounts and all

21 that.

22 Q. Okay. All right.

23 A. I assume.

24 Q. Okay. Let's -- I want to go back to the

25 Transition Agreement and mark as Exhibit 5 -- thank

57

1 you -- some pages from -- that you filed or your lawyer

2 filed in -- in court earlier this month.

3 (Deposition Exhibit 5 marked)

4 Q. And, if you would just take a look, it's the

5 Affidavit of Robert Ross and with one attachment which

6 says Transition Agreement. If you could look at that,

7 please.

8 A. (Reading).

9 Q. Have you had a chance to look at Exhibit 5?

10 A. I have.

11 Q. Okay. And is the beginning part of Exhibit 5

12 an affidavit executed by you?

13 A. It appears so, yes.

14 Q. Okay. And in your -- on the first page, which

15 says Appendix 377 at the bottom, you refer to a

16 Transition Agreement that was negotiated in 2018 that

17 you signed. Do you see that?

18 A. Yes.

19 Q. Okay. And if you flip ahead -- and it refers

20 there, on page Appendix 378, it says, "A true and

21 correct copy of that Transition Agreement that I signed

22 is attached hereto and marked as Exhibit A-1." Do you

23 see that?

24 A. Uh-huh.

25 Q. Okay. And then if you could go further into

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1 where it says Appendix page 383 at the bottom, in the

2 same exhibit.

3 A. Uh-huh.

4 Q. Do you have that in front of you? And it says

5 Exhibit A-1 at the bottom.

6 MS. PHILLIPS: So I'll -- objection;

7 hearsay.

8 Q. Is that the Transition Agreement?

9 MS. PHILLIPS: He can't verify that this

10 was actually filed of record.

11 Q. Is that the Transition Agreement that you

12 signed, as represented in your affidavit?

13 A. It's a copy of -- it's a copy of one that I

14 signed. It's not the one that I signed.

15 Q. Okay.

16 A. It's a copy of it.

17 Q. When you say "the one I signed," you meant the

18 original with the ink, ink on paper?

19 A. Yes.

20 Q. Okay. But this is an accurate facsimile, as

21 you testified in your affidavit. Right?

22 A. It appears to be.

23 Q. Okay. Well, did you look at it when you

24 signed your affidavit?

25 A. Did I look at this when I signed my affidavit?

59

1 Q. Yeah. You filed an affidavit in federal

2 court.

3 A. Yes.

4 Q. You said, "This is the Transition Agreement I

5 signed."

6 A. Okay. Yes.

7 Q. Is that correct or not?

8 MS. PHILLIPS: We need a break here.

9 MR. BARTOS: No. We're going until 1:00.

10 MS. PHILLIPS: We need a break.

11 MR. BARTOS: No, we're not going to

12 break.

13 MS. PHILLIPS: Oh, no. We need a break.

14 BY MR. BARTOS:

15 Q. Is this correct?

16 MS. PHILLIPS: We need a break.

17 MR. BARTOS: I'm asking a question.

18 MS. PHILLIPS: We need a break.

19 MR. BARTOS: He can answer the question.

20 MS. PHILLIPS: We need a break.

21 MR. BARTOS: Not until he's answered the

22 question.

23 MS. PHILLIPS: We need a break.

24 MR. BARTOS: Okay. You can have a break

25 after we answer the question.

60

1 MS. PHILLIPS: We need a break.

2 THE WITNESS: Will you restate your

3 question?

4 BY MR. BARTOS:

5 Q. Is it your testimony that this Exhibit 5 does

6 not contain the Transition Agreement that you signed on

7 March 1, 2018?

8 A. No.

9 Q. Okay.

10 A. Can you repeat that again the way you just

11 repeated it.

12 MR. BARTOS: The reporter can read it

13 back.

14 (Requested text was read)

15 MS. PHILLIPS: Objection. This is

16 confusing.

17 A. It is not -- yeah, that's a --

18 MS. PHILLIPS: It's a confusing question.

19 A. What do you mean? That it does not --

20 Q. Exhibit 5 -- let me ask. Exhibit 5 has the

21 Transition Agreement that you signed on March 1st, 2018.

22 A. Right.

23 Q. Is that correct?

24 A. Yes.

25 Q. Okay.

61

1 A. But you're trying to get me to say that this

2 Exhibit 5 does not include the --

3 MS. PHILLIPS: He doesn't understand the

4 question.

5 MR. BARTOS: He's answered it. We can

6 break for lunch, if you want, or we can keep going. Do

7 you want to keep going? It's good for me.

8 Q. Okay. Now, you're familiar that the APFA

9 Constitution --

10 MS. PHILLIPS: No. We're off the record.

11 Q. -- has a provision for Article VII --

12 MS. PHILLIPS: Let's go.

13 THE WITNESS: Are we on record or off?

14 MR. BARTOS: We're on the record.

15 MS. PHILLIPS: I'm not on the record.

16 MR. BARTOS: We are on the record until

17 we agree we're going off.

18 MS. PHILLIPS: You just said you were off

19 the record.

20 MR. BARTOS: We're on the record. I

21 said, we're on the record.

22 MS. PHILLIPS: You just said that we're

23 off the record or we can keep going.

24 MR. BARTOS: Do you want to break for

25 lunch. We can break for lunch?

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1 MS. PHILLIPS: We can break for lunch.

2 MR. BARTOS: Let's go off the record.

3 THE VIDEOGRAPHER: We're off the record

4 at 12:54 p.m.

5 (Recess from 12:54 p.m. to 2:06 p.m.)

6 THE VIDEOGRAPHER: We're back on the

7 record at 2:06 p.m.

8 (Deposition Exhibit 6 marked)

9 MR. BARTOS: This is going to be

10 Exhibit 6.

11 BY MR. BARTOS:

12 Q. Mr. Ross, you have in front of you Deposition

13 Exhibit 6, which has the Court's filing docket numbers

14 across the top and starts on the first page, at the

15 bottom, says Appendix 27. Do you see that?

16 A. Uh-huh.

17 Q. Okay. Do you recall earlier this month that

18 you signed an affidavit that was then filed with the

19 Court in support of your motion for summary judgment?

20 A. I believe I did.

21 Q. Okay. And do you remember that attached to

22 your affidavit were a number of exhibits?

23 A. There were exhibits attached that I recall.

24 Q. And just representing to you that the docket

25 reflects these pages here, 27 -- Appendix 27, 28, 29, 30

63

1 are in the appendix to your affidavit. Does that ring a

2 bell to you?

3 A. They appear what I would call. I don't know

4 exactly which -- which ones were in there and in what

5 order.

6 Q. Okay. The -- we started off here --

7 MS. PHILLIPS: I object based on the fact

8 that these aren't attached to the affidavit. There is

9 no way to tell these are the actual documents with the

10 affidavit.

11 MR. BARTOS: Okay. The court record can

12 reflect what's -- what's accurate or not. The --

13 MS. PHILLIPS: But he's testifying to it.

14 A. Yeah. I can't testify if this not --

15 MR. BARTOS: Okay. I'm asking questions.

16 You're not testifying.

17 MS. PHILLIPS: Correct. But I need to

18 object.

19 MR. BARTOS: Okay. Object.

20 Q. Mr. Ross --

21 MS. PHILLIPS: So I'm objecting based on

22 hearsay.

23 Q. All right. Mr. Ross, when you signed your

24 affidavit that was filed in support of summary judgment

25 in this case earlier in January 2024, did you look at

64

1 the exhibits that went along with your affidavit?

2 A. Yes.

3 Q. Okay. Do you recall these pages that are in

4 front of you as Deposition Exhibit 6 as being amongst

5 those exhibits?

6 A. I don't remember everything that was in there

7 on that date that I signed that.

8 Q. All right. Do you remember seeing these pages

9 of -- of texts back and forth between Melissa Chinery

10 and you?

11 A. I recognize them from documents that I have.

12 Q. Okay.

13 A. I recognize the R1s and the R2s --

14 Q. Okay.

15 A. -- from documents I had in arbitration.

16 Q. Okay. All right. All right. Do you have any

17 reason to believe that Deposition Exhibit 6 is not a

18 document that you submitted to federal court in January

19 of 2024?

20 MS. PHILLIPS: Objection; hearsay.

21 A. I don't -- I don't recall exactly what all

22 documents were presented to federal court.

23 Q. All right. Does this refresh your

24 recollection about your exchange of discussion back and

25 forth with Ms. Chinery which led to her ultimately

65

1 saying, "I will work tirelessly to make sure you're out

2 of office"?

3 A. State your question again.

4 Q. Does this document, Exhibit 6, refresh your

5 recollection at all about your discussion online with

6 Ms. Chinery that led her to say she would work

7 tirelessly to make sure you were out of office?

8 A. The fact of the matter is these documents were

9 produced for an arbitration in 2018, but these comments

10 were made in 2016. I don't recall everything that led

11 up to this or reason for it, other than it's

12 unexplainable behavior and motive.

13 But what led up to it and whatever this

14 document was from 2016, introduced into arbitration in

15 2018, and I never had a discussion as to her motive for

16 writing that.

17 Q. All right. Now, are you aware with the fact

18 that the APFA Constitution has Article VII dealing with

19 hearing and disciplinary procedures?

20 A. Article VII deals with arbitrations and

21 disciplinary hearings, but those are within Article VII.

22 That's not what Article VII specifically is, to my

23 recollection.

24 Q. All right. And, if we wanted to see what

25 Article VII provides, we'd just look at Article VII.

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1 Right?

2 A. That's right.

3 Q. Okay. And just to get your recollection or

4 understanding, is it your understanding that under

5 Article VII a member of APFA can file charges against

6 another member of APFA?

7 MS. PHILLIPS: I mean, objection. You

8 know, he's not here to testify about APFA Constitution.

9 A. If Article VII charges are filed against a

10 member, they would have to be filed under the guidelines

11 of Article VII against a member or from a member or

12 officer.

13 Q. All right. And as yourself, an APFA member,

14 you are -- you could file charges against another APFA

15 member, if you had a basis for it. Isn't that right?

16 A. You could. Anyone could.

17 Q. And, when charges are filed, they have to be

18 reviewed by the Executive Committee. Isn't that right?

19 MS. PHILLIPS: Objection; leading.

20 A. I think you'd have to define what the word

21 "review" means.

22 Q. Okay. Is the Executive Committee supposed to

23 conduct a vote as to whether the charges are timely,

24 valid, and specific?

25 MS. PHILLIPS: Objection; leading.

67

1 Q. Do you know?

2 A. Those -- those parameters are within the test

3 to decide as to whether Article VII charges could move

4 forward.

5 Q. Okay. And, if the Executive Committee votes

6 that, in its view, charges are timely, specific, and

7 valid, those charges must then go to the Article VII

8 arbitrator. Correct?

9 A. To my knowledge, that's not correct.

10 Q. What? What's wrong with that statement?

11 A. It's always been the premise that the

12 Executive Committee does an investigation, not merely

13 look at somebody's charges and vote yes or no. There

14 has to be some investigation. There has to be some

15 inquiry. There has to be some defense given to the

16 person who is being accused.

17 Q. And do you think that's written down somewhere

18 in Article VII?

19 A. There are a lot of things not written in

20 Article VII that are part of proper protocol.

21 Q. So that is not in Article VII, what you

22 described as the investigation, is it?

23 A. Well, I've been involved --

24 MS. PHILLIPS: I mean, objection. This

25 is all speculative.

68

1 A. I've been involved in union work for many

2 years, and I have never witnessed an Executive Committee

3 that didn't do some kind of due diligence on their part

4 to make sure that those accusations have merit.

5 Q. How many Article VII charges were filed while

6 you were president?

7 A. None.

8 Q. Okay. The Article VII arbitrator is someone

9 who is appointed by the board of directors. Right? If

10 you know.

11 A. They are voted on by members of the board of

12 directors.

13 Q. Okay. So, if someone gets a majority vote,

14 they can be an Article VII arbitrator; if they don't get

15 a majority, then they're not. Is that fair to say?

16 A. Well, they would be either the lead arbitrator

17 or they would be an alternate.

18 Q. If they're voted on?

19 A. Right.

20 Q. Okay. And you're familiar with Arbitrator

21 Armendariz?

22 A. I am familiar with that name.

23 Q. Okay. In fact, you voted for him to renew his

24 term as Article VII arbitrator, didn't you?

25 MS. PHILLIPS: Objection; leading.

69

1 A. I felt I was required to because I was having

2 Article VII charges at the time.

3 Q. But you did vote?

4 A. If I voted no, it would have -- it would have

5 adversely affected his opinion of me.

6 Q. So you did vote yes?

7 A. Yes.

8 Q. Okay. And would you agree with me that under

9 Article VII the arbitrator has the jurisdiction to

10 decide whether or not charges are timely or untimely?

11 A. Again, another flaw in the Article VII

12 process. He would have to know all the facts and

13 specifics to know whether it was timely or not.

14 Q. But does he have that jurisdiction?

15 A. He has the jurisdiction if he's given the

16 proper authority -- proper documentation to prove it,

17 and he would have that.

18 Q. And he has jurisdiction to find that charges

19 are not specific, doesn't he?

20 MS. PHILLIPS: Objection; leading.

21 A. I don't know what his process is. Once it

22 gets to the arbitrator, it's already gone beyond the EC.

23 Q. Okay. All right. But we could look at

24 Article VII and it would tell us what his jurisdiction

25 is. Right?

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1 Q. Okay. And the purpose of this letter is to

2 ask the arbitrator to reopen the hearing. Correct?

3 A. Yes. The arbitrator had not made his ruling

4 yet.

5 Q. Okay. So this is the request to reopen the

6 hearing?

7 A. Yes.

8 Q. Okay. And the arbitrator denied that request,

9 right?

10 A. He did.

11 Q. And --

12 A. His email -- his denial is not in here.

13 Q. No. I'm going to show you that exhibit in

14 just a second.

15 (Deposition Exhibit 12 marked)

16 Q. This is Exhibit 12. And Exhibit 12 is the

17 arbitrator's email in which he denies the request to

18 reopen the record. Right?

19 A. That's what it says.

20 Q. Okay. I want to go back to the prior

21 Exhibit 11 and ask a question.

22 In your posthearing brief, you state that the

23 Confidential Memo surfaced on January 14th, 2022. And,

24 in your motion to reopen, you say this document was

25 received in the mail on February 11th, 2022.

91

1 Do you know why those dates are different in

2 the -- in the two different communications?

3 MS. PHILLIPS: I would object based on

4 leading.

5 A. I would imagine someone has their dates wrong.

6 Q. Okay. Just curious. All right.

7 A. It looks to me like it's stating that it

8 surfaced on January 14th. Could be a typo --

9 Q. Okay.

10 A. -- on the request to reopen.

11 Q. Okay. After you had submitted your brief and

12 your request to reopen and the ruling on the request to

13 reopen, the arbitrator ultimately issued a decision --

14 correct -- in your Article VII case?

15 A. He -- it's correct he -- yes. It's correct he

16 made a decision. I'm not saying his decision was

17 correct. So I guess I don't understand.

18 Q. Sure. I'm not asking you to say the decision

19 was correct. I know you disagree with that.

20 But it is correct -- it is true to say that

21 the arbitrator issued a decision, a written decision?

22 A. He issued a decision.

23 Q. Okay. And, after that decision was issued,

24 you filed your lawsuit against the APFA and Ms. Hedrick

25 and Mr. Harris?

92

1 A. Did I?

2 Q. If you don't remember, that's fine. I can

3 only ask you what you remember.

4 A. I don't -- I don't remember the exact dates

5 that everything --

6 Q. Okay. Okay. Fair enough. And the -- the

7 first award by the Article VII arbitrator in your case

8 directed the APFA to do certain things. Do you remember

9 that?

10 A. I don't know that I'd title it like that, but

11 it's -- yeah, if that's what you classify it.

12 Q. Okay. Well, we can -- we can read -- I'll

13 read the decision and figure out what we want to call

14 it.

15 But, in any event, after the first award,

16 there was a second award that was issued by the

17 arbitrator. Do you remember that?

18 A. I don't know -- to be honest, I don't know the

19 difference between the two.

20 Q. Sure.

21 MS. PHILLIPS: Take a break after this.

22 MR. BARTOS: You know what, let me

23 just -- rather than ask an additional question, I just

24 want to just say on the record I'm very -- I think we're

25 not proceeding in an efficient way. We were supposed to

93

1 start at 10:00. It's now almost 3:00. And I think the

2 court reporter can probably tell us how little time

3 we've actually been able to spend with questions, in

4 light of the delay and the breaks.

5 We have the full right to depose Mr. Ross for

6 up to seven hours, and we're going to do so. These

7 delays are disruptive. And we intend to complete his

8 deposition.

9 MS. PHILLIPS: I will state on the record

10 that Mr. Ross has suffered a broken rib as of --

11 THE WITNESS: I can't sit long.

12 MS. PHILLIPS: -- a week ago, two weeks

13 ago.

14 THE WITNESS: Yeah.

15 MS. PHILLIPS: This morning's incidents,

16 moving the deposition to this location, was jarring for

17 him. And I think you knew that he was susceptible to

18 that -- to that form of abuse. And I'm sorry for that

19 delay, and I'm sorry for circumstances that he went

20 through. But, unfortunately, on the record, the delay

21 was suffered as a result of the abuse and harassing

22 tactic that was taken. So, if we need to take that up

23 with the judge, then that is something that we can

24 probably address tomorrow.

25 MR. BARTOS: I want to complete the

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1 deposition. That's all I'm saying. We can take a

2 break. I'll respect his medical condition. But we're

3 going to finish the deposition.

4 MS. PHILLIPS: If you want to finish your

5 question, I didn't mean to interrupt your question.

6 MR. BARTOS: No. That's fine. We can

7 take a break right now.

8 MS. PHILLIPS: We had discussed at lunch

9 trying to take a break every -- every half an hour for

10 him, I think. I was concerned that it would cause him

11 pain to sit for too long with a broken rib in his back.

12 So that was my concern.

13 THE WITNESS: My schedule -- they can

14 look it up at APFA. My schedule will corroborate that I

15 was out.

16 MR. BARTOS: Let's take a break. Off the

17 record.

18 THE VIDEOGRAPHER: We're off record at

19 3:02 p.m.

20 (Recess from 3:02 p.m. to 3:11 p.m.)

21 THE VIDEOGRAPHER: We're back on record

22 at 3:11 p.m.

23 BY MR. BARTOS:

24 Q. Can you tell me, Mr. Ross, in your own words,

25 how it is you think the Confidential Memo demonstrates

95

1 that you -- you didn't owe -- you had not made an

2 overpayment?

3 A. How does the Confidential Memo demonstrate

4 that I did not make an overpayment?

5 Q. Receive -- did not receive an overpayment.

6 A. I can read the document.

7 Q. Sure.

8 A. In Section 2 it says that his job was to

9 prepare an overpayment schedule of accrued and unused

10 sick, and accrued and unused vacation time made to Bob

11 Ross in 2018, similar -- not exact, but similar -- to

12 the overpayment schedules prepared for the previous

13 three officers.

14 It goes on to say, "These overpayment

15 schedules for the other officers were previously

16 provided to the Board of Directors." I was not aware of

17 any of that. "Please note the Bob Ross confidential

18 transition agreement states that he will be paid all of

19 his accrued and unused sick, and accrued and unused

20 vacation time. This agreement doesn't specify that the

21 payments be made in accordance with the policy

22 guidelines," which is a correct statement.

23 "Consequently, these payments appear appropriate and in

24 compliance with the transition agreement."

25 The $5,400 that they were putting me into

96

1 collections for was based on an overpayment, and that

2 overpayment was the result, in a letter from Erik Harris

3 sent to me on the day before Thanksgiving, stating that

4 the board's finding was based on an independent

5 accounting, who had found that I was overpaid.

6 My request the whole time was, where is that

7 accounting? Show me the accounting where the accountant

8 stated that I was overpaid, so that I could prove it,

9 because I felt that I was paid correctly. And I was

10 told that I had gotten all the paperwork that they have,

11 charts, graphs. I couldn't explain the charts and

12 graphs that he gave me. I didn't know one number from

13 another.

14 And, at some point in there, I had made an

15 arrangement with the Union to pay them $100 a month

16 until we came to a conclusion on this. If they found

17 out that I was not overpaid, they could refund the

18 money; and, if I was overpaid, they could apply what I

19 had already paid, and at that point we would make

20 arrangements.

21 I was told, not confirmed, but I was told that

22 that offer was presented to the board and the board said

23 no.

24 Q. Back to my question about how the Confidential

25 Memo establishes or shows that you weren't overpaid, I'd

97

1 like you to look at the last page, which is -- has the

2 number 176 at the bottom. Do you see that?

3 A. Yeah.

4 Q. It says -- it says "National Officer: Bob

5 Ross." Do you see that?

6 A. I see that.

7 Q. And then it says "Overpayment Calculation."

8 Do you see that?

9 A. Uh-huh.

10 Q. And, if you look down along the left-hand

11 side, there is a bold that says "Vacation Pay - 2017,"

12 "Sick Pay - 2017," as you go down, and we get down to

13 "Vacation Pay - 2017," and then it says, "Original

14 amount - paid in error," and then, "Correct calculation

15 amount." Do you see that?

16 A. Uh-huh.

17 Q. Okay. And then on -- towards the middle there

18 is a bolded section that says "Overpayment" with a

19 dollar value. Do you see that?

20 A. I see this as a chart with numbers filled in.

21 Q. Okay. And there's words too, and one of the

22 words at the bottom says, "Total overpayment - due to

23 APFA." Do you see that?

24 A. I see that. But there is no proof here that

25 the accountant put these words in. The accountant was

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Robert Ross 

1 Q. Okay. And is it your contention that that's a

2 duty that arises under the APFA Constitution? 

3 A. Yes.

4 Q. Okay. And is it your contention that that's a 

5 fiduciary duty individually to you and individually to 

6 every other APF A member as an individual? 

1 A. As a member in good standing and dues-paying

8 member, yes. 

9 Q. Okay. How did Julie Hedrick violate a

10 fiducia1y duty toward you? 

11 A. Which one?

12 Q. Julie Hedrick.

13 A. No. Which - you said "a fiduciary duty."

14 Q. Yeah. Any.

15 A. Oh. She violated the Transition Agreement.

16 MS. PHILLIPS: I would object based on

11 asking for his legal opinion. 

18 Q. You still can answer.

19 A. She violated confidentiality. She violated

20 Code of Conduct by putting a false hotline out to my 

21 membership and co-workers that I did not have equal 

110 

22 access to their emails, knowingly knowing that there was 

23 false information on it. Violated the teims of the 

24 Transition Agreement confidentiality, Section 13, that 

25 had to do with disputes and arbitrations. Just to name 

1 a few. 

2 Q. Well, this is our one chance to talk to you;

111 

3 so I need you to tell me what you - what you claim she 

4 violated. 

5 A. I just did.

6 Q. Okay. Well, you mentioned a hotline. I'm not

7 going to ask you to remember eve1y last hotline. Okay. 

8 But my question is -- I know there were hotlines after 

9 the arbitration award that described the outcome of the 

10 arbitration award. 

11 Is that the hotline that you're talking about? 

12 A. That's one of them.

13 Q. Okay. And what were the subjects of the other

14 ones besides that? 

15 A. Well, as a long-standing Union rep with

16 knowledge of prior arbitrations, prior litigations, it 

11 has always been the long-standing practice that we don't 

18 name names, that you don't single out a person, that you 

19 redact names when you're talking about things like dues 

20 forgiveness. 

21 My name wasn't redacted. It was a full-page 

22 spread out there of what the arbitration award was, and 

23 there were numbers given to the membership that they 

24 know were inco!l'ect. And at no time was I ever 

25 confe!l'ed with to co!l'ect those. And it was done 

29 

2/1/2024 

112 

1 specifically to mar my reputation, as a dues-paying 

2 member in good standing, to my co-workers, of which I 

3 have had to live with harassment and volatility ever 

4 smce. 

5 Q. So I've asked you -- my question was, what

6 were the hotlines that went out that you're claiming 

1 violated these duties. And tell me ifl'm wrong. What 

8 I'm hearing is the hotlines had to do with the outcome 

9 of the Article VII arbitration. I know you don't agi·ee 

10 with what was said. I'm not asking you to. I just want 

11 to identify that that's the hotline, or if tltere is more 

12 than one, but they talk about the Article VII 

13 arbitration. 

14 A. That's co!l'ect.

15 Q. Okay.

16 MS. PHILLIPS: So, in lieu ofttying to

11 accommodate and not take too many breaks, can I just 

18 check and see if he's okay? 

19 MR. BARTOS: Please. 

20 MS. PHILLIPS: Are you okay? Do you need 

21 a break? 

22 THE WITNESS: No. I'm good, as long as I 

23 don't move. 

24 MR. BARTOS: Okay. And I don't know 

25 enough to know if this is helpful, but if it's helpful 

113 

1 to stand, that's certainly acceptable. 

2 THE WI1NESS: Sometimes it is. 

3 MR. BARTOS: Okay. All right. 

4 Q. All right. Now, you also claim that Erik

5 Harris had a fiduciary duty to you. Right? 

6 A. They all had a fiduciary duty.

7 Q. Okay. Okay. B ut you're suing Erik Harris?

8 A. Right.

9 Q. And Julie Hedrick?

10 A. AndAPFA.

11 Q. I understand. I want to talk about Erik

12 Harris for a second. 

13 What is -- what did Mr. Harris do that you 

14 claim violated a fiduciary duty to you? 

15 A. How much time do we have?

16 Q. Give your answer.

11 A. This was withheld from me, the Confidential

18 Memo. Emails where he knew that this Confidential Memo 

19 existed yet refused to talk to me about it. There are 

20 so many opportunities that APF A had to settle this and 

21 to discuss this with me, that they purposely chose not 

22 to go down that avenue, so much to the point where I was 

23 sent an entail with a "you are blocked," to no longer be 

24 able to talk to APF A about it. So I was given no other 

25 choice but to wrangle through the legal system, rather 

..._ ___________ ___._ ___________ __,***** 

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***** 

Robert Ross 

134 

1 going to the hospital in the sunuuer of2022 for various 

2 symptoms you were suffering and going back in July, 

3 August, September 2023. And it's your contention these 

4 were all precipitated by the APF A. 

5 Is that yotu· claim in this lawsuit? 

6 A. That's -- I don't know what all of those dates

7 are that you put there; so I don't know the exact cause 

8 on each one of them. 

9 Q. Well, let me -- I'm sony. I'm not trying to

10 hide the ball. Let me make an exhibit of yom· 

11 declaration. We are on 15. 

12 (Deposition Exhibit 15 marked) 

13 Q. Is Exhibit 15 an affidavit that you signed? 

14 A. I'd have to read through the whole thing. I

15 don't know. TI1is is not my doctuuent, but they are 

16 yotu-s. 

11 Q. Okay. Well, I'll just represent to you it was

18 filed by yom· -- in cotut by yom· lawyer. 

19 MS. PHILLIPS: Well, then I'll object to 

20 hea1-say because I can't verify this. 

21 Q. Do you see the last page? Is that yom·

22 signattu·e? 

23 A. It appears that it's a replica of an

24 electronic signature. It doesn't ... 

25 Q. Well, let me ask you this. Do you recall

1 signing this affidavit? 

2 A. I recall signing an affidavit. I can't 

3 guarantee that this is the affidavit unless I read eve1y 

4 word and compare it to the affidavit that I have. 

5 Q. Do you have a copy of the affidavit you signed

6 somewhere else? 

7 A. Not -- somewhere else I do.

8 Q. You do.

9 MR. BARTOS: Okay. We'd ask that be

10 produced. He can't tell that the doctunent filed in 

11 comt was the same thing he signed. 

12 Q. Yotu· --you live in Califomia. Right?

13 A. Yes.

14 Q. And you're based in DFW.

15 Can you tell me why this affidavit has your

16 signature and has a nota1y from the state of Florida? 

11 A. I don't know that I ask people where they're

18 living when they're doing it. 

19 MS. PHILLIPS: Objection; relevance. 

20 Q. Well, I guess my problem, Mr. Ross, is

21 we're -- you filed a motion in which you're asking for 

22 over a million dollars in damages pa1tly based on an 

135 

23 affidavit. And I'm not -- from what I'm hearing, you're 

24 not sure if this is the affidavit that you actually 

25 signed. 

STRYKER REPORTING SERVICES 

35 

2/1/2024 

A. You're asking me ifl signed this affidavit.

2 MS. PHILLIPS: Objection; relevance.

3 Q. Yeah, I'm asking if you signed this affidavit

4 that was filed in federal cotut. 

5 A. I filed an affidavit.

6 MS. PHILLIPS: Objection; hearsay. I

7 mean ... 

8 Q. Well, let's -- let's -- let's look at a few

9 things in here. 

10 A. Okay.

11 Q. Let's look at the medical costs, which I was

136 

12 just asking you, which is on Appendix 187. Do you see 

13 that? Can you read that Medical Costs section. 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

A. You want me to read it out loud?

Q. No. Just to yom-self.

A. (Reading).

Q. Is - is -- the affidavit you signed, did it 

contain this provision, this subparagraph h., Medical 

Costs? 

MS. PHILLIPS: Objection; asked and 

answered. 

A. I'm familiar with some of the wording in here;

but, to attest that this is the actual one, I'm not 

sure. 

Q. Okay. All right. You produced--

MR. BARTOS: Again, I'll just reiterate 

2 we want to see the affidavit that he signed. 

3 Q. You produced along with yotu· filing a ntuuber

4 of pages of medical records. Do you recall that? 

5 A. I believe my attomey did.

6 Q. Okay. Are you aware that medical records were

7 submitted in suppo1t of yom· claim? 

8 A. I supplied my attomey medical records -

9 Q. Okay.

10 A. -- in behalf of my ...

11 Q. And these were records that you obtained from

12 the VA. Is that right? 

13 A. Yes.

23 Q. You're seeking substantial damages from the

24 people in this room; so they're allowed to be at the 

25 deposition. 

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Robert Ross 

A. But I'm not a doctor; so I don't know. And I

2 honestly don't --I don't know and could not, in my 

3 wildest imagination, tell you what those -- what those 

4 two dates represent. 

5 Q. Okay. All right. And I asked you about a

6 recollection of being hospitalized. And I want to just 

7 mark as another -

s MS. PHILLIPS: We need to take a break. 

9 MR. BARTOS: Sm·e. Can we just -- we 

10 take a break right now, if you want. Right now? 

11 MS. PHILLIPS: Yeah, I need to take a 

12 break. 

13 MR. BARTOS: Okay. We'll have these 

14 marked and ready for the next. 

15 THE VIDEOGRAPHER: We're off record at 

16 4:30 p.m. 

11 (Recess from 4:30 p.m. to 4:36 p.m.) 

18 (Deposition Exhibit 17 marked) 

142 

19 THE VIDEOGRAPHER: We're back on record 

20 at 4:36. 

21 MR. BARTOS: Could I ask - I think we 

22 discussed this before, but could I ask the comt 

23 reporter to advise how much tinie on the record we've 

24 had. 

25 THE REPORTER: Three hom-s and six 

1 minutes. 

2 MR. BARTOS: Okay. The -- what exhibit 

3 number are we on? 

4 THEREPORTER: 17. 

5 MR. BARTOS: 17. 

6 BY MR. BARTOS: 

STRYKER REPORTING SERVICES 

143 

37 

2/1/2024 

A. On this one here, can you restate your

2 question? 

144 

145 

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Robert Ross 

1 MS. PHILLIPS: I'm going to object again. 

s This is -- this is all hearsay testimony about 

146 

9 secondhand info1mation, and it doesn't even appear to be 

10 accurate, any of it. 

11 Q. Do you think your medical records that you 

12 submitted are accurate, Mr. Ross? 

13 A. I don't have any control over what people

14 type. 

20 Q. Okay. So you would not recommend that we rely

21 on that pa1ticular po1tion of yom· record to conclude 

22 anything? 

23 A. I'm not saying that, either.

24 Q. Well--

25 A. I'm saying --

Q. That's what I'm trying to figure out. I want

2 to know if you think that description is accurate and 

3 reliable or not. It's a record you submitted. I'm just 

4 trying to understand. 

5 A. I'm not stating that the way that this is

6 described is accurate, and I'm not stating that this 

7 didn't happen on -- I don't even see a date on here. I 

s don't see a date. 

9 Q. Let's go on. You - if you can look at the

10 Appendix page 227. I think it might be on the prior 

11 exhibit. Can you tell me, sir, the exhibit you're 

12 holding in the right hand, what are the page numbers on 

13 it. 

14 A. You said227.

15 Q. Okay. All right. So where it says 

147 

16 Appendix 227 at the bottom, if we go down to the bottom 

11 block of text, it says Date/rime: 22 September 2023. 

1s A. Okay.

STRYKER REPORTING SERVICES 

38 

2/1/2024 

19 MS. PHILLIPS: Again, objection. This is 

148 

20 hearsay. He doesn't -- I mean, these are impressions by 

21 another person. They're all hearsay. This is somebody 

22 else. 

23 MR. BARTOS: We can -- if you want to 

24 withdraw them from the -- from the comt file, that's

25 fine. But this is where they are. So can you --

MS. PHILLIPS: They're -- they are his 

2 medical records. He can't testify as to what their 

3 mental impressions were. 

4 MR. BARTOS: Okay. 

5 A. Well, to me --

6 Q. Yeah. Go ahead.

7 A. -- it says

9 Q. Okay. And the individual who you felt was

11 MS. PHILLIPS: Objection. He can't

12 testify as to what --

13 A. She was not the only one.

14 MS. PHILLIPS: -- that person thought.

15 Q. Okay. I'm sony. Yom answer was what?

16 A. She was not the only one.

24 

25 

MS. PHILLIPS: Objection; privilege. 

MR. BARTOS: Excuse me. Stop 

149 

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Robert Ross 

1 interrupting my question. 

13 MS. PHILLIPS: Objection; privileged. 

14 Q. Ifyou remember.

15 MS. PHILLIPS: You don't have to answer

16 medical privileged infonnation and conversations, Bob. 

17 A. I'm not going to give up any of my IDP AA

18 rights. But ... 

19 Q. Well, you just filed a hundred pages of

20 medical records in federal court. 

21 A. I don't know that what you're -that -

22 Q. Okay.

23 A. I can't -

24 Q. Okay. 

25 A. -- can't classify what you just said as being

1 accurate. 

7 Q. Right. That's the part that yow- lawyer

8 highlighted and filed in court. 

9 A. Uh-huh.

10 Q. So I'm asking you, is that right?

11 A. Yes.

12 Q. Okay.

13 A. But you --

STRYKER REPORTING SERVICES 

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151 

39 

2/1/2024 

6 Q. Including you?

1 MS. PHILLIPS: Objection; medically --

8 A. No.

9 MS. PHILLIPS: -- p1ivileged.

10 Q. No? Okay. Well, let's look at the document.

11 MS. PHILLIPS: You don't have to answer

12 questions about conversations, Bob. 

13 A. I don't recall that.

14 Q. I'm going to -- I'm going to ask you about the

15 documents that you've submitted for which you are 

16 seeking damages. 

11 MS. PHILLIPS: Ten minutes. 

18 Q. Okay. I'd like you to look in your exhibits

19 with the one that has the Appendix page 248 on it, 

20 Mr. Ross. I believe it might be the other one. Okay. 

21 Which exhibit are you looking at? 

22 A. You told me 248.

23 Q. Okay.

24 A. 17.

152 

25 Q. I 7. Okay. And could you go to page 248. Are

1 you on that page, sir? 

2 A. I'm on that page.

3 Q. Okay. And if you just look at the top section

4 that's been highlighted, that sort of carryover first 

5 paragraph, it says, 

9 A. Yes.

10 Q. Okay. And does that accurately reflect your

11 self-understanding? 

12 MS. PHILLIPS: Objection; obscure, fonn. 

13 A. Can you repeat that question? It sounds like

14 it's leading. 

15 Q. Well, I'm allowed to ask leading questions.

16 So ... 

11 A. Okay. Can you repeat the question the way --

18 the way you just said it. 

19 Q. So we can have it read back the way I just

20 said it. 

21 A. Okay. That's fine. I'm not asking you to 

22 change it. I'm asking you to read it. 

23 (Requested text was read) 

24 MS. PHILLIPS: Medically p1ivileged; 

25 objection. Bob, you don't have to answer that. 

153 

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Robert Ross 

154 

MR. BARTOS: Are you directing him not to 

2 answer? 

3 MS. PHILLIPS: I'm directing him not to 

4 answer. 

5 MR. BARTOS: Okay. So just to be clear, 

6 you've submitted about a hundred pages of medical 

1 records. And your position is I'm not allowed to ask 

8 questions about them? 

9 MS. PHILLIPS: You can compel it, if you 

10 want it. 

11 MR. BARTOS: I just want to understand 

12 your position. 

13 THE WITNESS: You can't form yom· own 

14 opinion on what a document --

15 MS. PHILLIPS: My position is that he 

16 does not have to interpret what somebody else --

11 THE WITNESS: Right. 

18 MS. PHILLIPS: -- said about a 

19 conversation. 

20 THE WITNESS: Right. 

21 MS. PHILLIPS: This is all hearsay. 

22 MR. BARTOS: I'm asking if you're 

23 asserting it's privileged and he's not allowed to answer 

24 it. You're directing him not to answer? 

25 MS. PHILLIPS: I'm directing him not to 

1 answer it. 

2 MR. BARTOS: Based on privilege? 

3 MS. PHILLIPS: Based on -- based on a 

4 conversation with his doctor. Yeah, medically 

5 privileged conversation. 

6 MR. BARTOS: In the very records that you 

1 submitted in cotut. That's your position? 

8 MS. PHILLIPS: Do you have any other 

9 questions? 

10 MR. BARTOS: Well, I will ask the same 

11 question. 

12 BY MR. BARTOS: 

17 

18 

19 

does that reflect your self-understanding? 

A. Only -- only if it's added to the -­

(Speaking simultaneously)

MS. PHILLIPS: That's -- we can do nine 

155 

20 minutes of objection; privileged. I'm directing you not 

21 to answer that. 

22 THE REPORTER: I did not get his answer. 

23 MS. PHILLIPS: Yeah, well --

24 MR. BARTOS: That was the intention. 

25 THE REPORTER: Will you please let hi.tu 

STRYKER REPORTING SERVICES 

1 finish so I can -- I can only do one at a time. 

40 

2/1/2024 

156 

2 MS. PHILLIPS: I'm directing you not to 

3 answer that. 

4 MR. BARTOS: Okay. Okay. I just want to 

5 establish, for clarity, that that's what you're doing. 

6 Okay. 

1 BY MR. BARTOS: 

8 Q. Do you want to withdraw yotu· claims for 

9 medical damages and emotional distress, Mr. Ross? 

10 A. No.

11 Q. Okay. All right. Mr. Ross, how much ha

ve you

12 actually paid in legal fees in this case to date? 

13 MS. PHILLIPS: Objection; privileged. 

14 I'm di.t·ecting you not to answer. 

15 MR. BARTOS: Just for the record, there 

16 is an affidavit from Ms. Phillips and a request for 

11 payment of legal fees in excess of$300,000, and I think 

18 I'm entitled to ask questions about that when there is a 

19 motion for stllll111a1y judgment seeking that to be paid by 

20 the Union. So let me just restate it, and if you want 

21 to instmct him not to answer, that's fine. 

22 Q. Mr. Ross, how much have you actually paid in

23 legal fees in this matter to date? 

24 MS. PHILLIPS: Objection; privileged. 

25 A. I object to that. Under legal advice, I'm

objecting to answering that question. 

2 Q. Do you have a retainer agreement with

3 Ms. Phillips? 

4 A. I do.

5 Q. Okay. Who else is a party to that agreement

6 besides you and Ms. Phillips? 

1 MS. PHILLIPS: Objection; ptivileged. 

8 A. Maybe I don't understand what you mean by

9 "agreement." 

10 Q. You said you had a retainer agreement.

11 A. I do. 

12 Q. So that's the agreement I'm talking about.

13 A. She is my attorney.

14 Q. Okay. And is anyone else a party to that same

15 retainer agreement? 

16 MS. PHILLIPS: Objection. 

11 A. I don't know.

18 Q. Okay. Has anyone else agreed to pay your

19 legal fees in this case? 

20 MS. PHILLIPS: Objection; p1ivileged. We 

21 already -- we've already ... 

22 A. I guess I don't know how to answer that

23 because ... 

157 

24 Q. Do you know? Has anybody else agreed to pay

25 your legal fees in this case? 

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Robert Ross 2/1/2024

41

STRYKER REPORTING SERVICES (817) 494-0700

158

1 A. No. No.

2 Q. Have you discussed with any labor organization

3 and they are paying your legal fees in this case?

4 MS. PHILLIPS: Objection. This is

5 ridiculous.

6 A. No.

7 Q. No. Have you discussed with any

8 representatives of other labor organizations --

9 MS. PHILLIPS: We're done.

10 Q. -- they're paying your legal fees in this

11 case?

12 MS. PHILLIPS: We're done. It's 5:00.

13 We're done. Let's go.

14 A. There is no union -- other union, if that's

15 what you're saying, labor organization agreeing to pay

16 my legal fees.

17 MS. PHILLIPS: Let's go.

18 MR. BARTOS: Okay. Just for the record,

19 we have not -- we have barely touched four hours of

20 time. We will resume tomorrow morning. And I suggest

21 we start at 9:00 so we can get Mr. Vargas done.

22 MS. PHILLIPS: Yeah, you have me at

23 10:00. That's what you scheduled and noticed for.

24 MR. BARTOS: We had you at 10:00 a.m.

25 this morning, and we didn't start until 11:00. We'd be

159

1 done by now.

2 MS. PHILLIPS: Well, you probably

3 shouldn't sabotage people. I highly recommend --

4 MR. BARTOS: We will be here at 9:00

5 ready to go.

6 MS. PHILLIPS: You need to re-notice and

7 give five days' notice.

8 MR. BARTOS: We'll be here at 10:00, and

9 we expect Mr. Ross to be here to complete his deposition

10 because he's indicated on the record --

11 MS. PHILLIPS: Tomorrow?

12 MR. BARTOS: Tomorrow.

13 MS. PHILLIPS: You have Vargas tomorrow.

14 MR. BARTOS: We're continuing until we're

15 done.

16 MS. PHILLIPS: What are you planning on

17 doing with Mr. Vargas?

18 MR. BARTOS: We'll resume Mr. Vargas --

19 we'll start Mr. Vargas when Mr. Ross is done.

20 MS. PHILLIPS: Mr. Vargas has -- has --

21 he has work. So you want to -- Mr. Ross has his work

22 schedule; so that's not going to work.

23 MR. BARTOS: We'll be here and expect to

24 finish with Mr. Ross tomorrow at 10:00 a.m. Yeah, we

25 can go off the record.

160

1 THE VIDEOGRAPHER: We're off record at

2 4:56 p.m.

3 (Proceedings adjourned at 4:56 p.m.)

4 (Per Federal Rule of Civil Procedure

5 30(e)(1), signature was requested via

6 email by Counsel after completion of the

7 deposition)

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14

15

16

17

18

19

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161

1 CHANGES AND SIGNATURE

2 WITNESS NAME: ROBERT ROSS, VOLUME 1

 DEPOSITION DATE: FEBRUARY 1, 2024

3 PAGELINE CHANGE/REASON

4 ________ ______________________________________________

5 ________ ______________________________________________

6 ________ ______________________________________________

7 ________ ______________________________________________

8 ________ ______________________________________________

9 ________ ______________________________________________

10 ________ ______________________________________________

11 ________ ______________________________________________

12 ________ ______________________________________________

13 ________ ______________________________________________

14 ________ ______________________________________________

15 ________ ______________________________________________

16 ________ ______________________________________________

17 ________ ______________________________________________

18 ________ ______________________________________________

19 ________ ______________________________________________

20 ________ ______________________________________________

21 ________ ______________________________________________

22 ________ ______________________________________________

23 ________ ______________________________________________

24 I, ROBERT ROSS, have read the foregoing deposition

25 and hereby affix my signature that same is true and

APPENDIX 29

Case 4:22-cv-00343-Y Document 206 Filed 02/16/24 Page 32 of 73 PageID 4828
Robert Ross 2/1/2024

42

STRYKER REPORTING SERVICES (817) 494-0700

162

1 correct, except as noted above.

2

3 ____________________________

 SIGNATURE OF WITNESS

4 STATE OF __________ x

5 COUNTY OF _________ x

6

7 Before me, _____________________, on this day

8 personally appeared ROBERT ROSS, known to me (or proved

9 to me under oath or through ___________) (description of

10 identity card or other document) to be the person whose

11 name is subscribed to the foregoing instrument and

12 acknowledged to me that they executed the same for the

13 purposes and consideration therein expressed.

14 GIVEN UNDER MY HAND AND SEAL of office this

15 _____ day of _________________, 2024.

16

17

18

19 (Seal) ____________________________

Notary Public in and for the

20 State of ___________.

21

22

23

24

25

163

1 IN THE UNITED STATES DISTRICT COURT

 FOR THE NORTHERN DISTRICT OF TEXAS 

2 FORT WORTH DIVISION

3 ROBERT (BOB) ROSS, §

 §

4 Plaintiff/ §

Counterclaim Defendant, §

5 § Civil Action No.

VS. § 4:22-cv-343-Y

6 §

ASSOCIATION OF § Judge Terry R. Means

7 PROFESSIONAL FLIGHT §

ATTENDANTS, et al., §

8 §

Defendants/ §

9 Counterclaim Plaintiff. §

10 REPORTER'S CERTIFICATION

11 VIDEOTAPED ORAL DEPOSITION OF ROBERT ROSS

12 VOLUME 1

13 FEBRUARY 1, 2024

14 I, Angela L. Mancuso, Certified Shorthand Reporter

15 in and for the State of Texas, hereby certify to the

16 following:

17 That the witness, ROBERT ROSS was duly sworn by the

18 officer and that the transcript of the oral deposition

19 is a true record of the testimony given by the witness;

20 That the original deposition was delivered to

21 Ms. Kerri Phillips for examination and signature by the

22 witness;

23 That the time used by the parties is as follows:

24 MS. KERRI PHILLIPS: 0 minutes

25 MR. JEFFREY A. BARTOS: 3 hours, 25 minutes

164

1 I further certify that pursuant to FRCP Rule

2 30(e)(1) that the signature of the deponent was

3 requested by the Counsel for the deponent after the

4 completion of the deposition and that the signature is

5 to be before any notary public and returned within

6 30 days from date of receipt of the transcript. If

7 returned, the attached Changes and Signature page

8 contains any changes and the reasons therefor.

9 I further certify that I am neither attorney or

10 counsel for, nor related to or employed by, any of the

11 parties to the action in which this deposition is taken,

12 and further that I am not a relative or employee of any

13 attorney or counsel employed by the parties hereto, or

14 financially interested in the action.

15 Certified to by me on this the 7th day of February,

16 2024.

17

18

__________________________________

19 ANGELA L. MANCUSO, CSR 4514

Expiration Date: 10/31/24

20 Stryker Reporting

Firm Registration No. 806

21 1450 Hughes Road, Suite 230

Grapevine, Texas 76051

22 (817) 494-0700

23

24

25

APPENDIX 30

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Robert Ross 

object 22:2 151:25, 152:2 6:13, 7:6, 33:19 

25:4, 63:7 152:7, 153:12 40:21, 41:3 

63:18, 63:19 153:25, 155:20 41:10, 82:15 

70:8, 91:3 156:13, 156:24 82:19, 82:20 

110:16, 114:12 157:7, 157:16 95:13, 95:15 

115:9, 115:12 157:20, 158:4 109: 19, 114:5 

134:19, 146:7 objective 99:4 114:20, 116:5 

156:25 obligated 34:12 official 18: 18 

objecting 63:21 obligation 30:3 118:14 

137:20, 157:1 37:11 officials 6: 16 

objection 9:2 obligations 34:5 oh 59:13, 104:24 

11:1, 23:14 obscure 153:12 110:15, 144:23 

23: 17, 23: 18 obtained 137:11 okay 5:22, 7:18 

24:3, 24:9 140:9 9:10, 9:20, 9:23 

24:17, 24:25 obvious 145:14 9:25, 10:11 

29:3, 29:20 obviously 7:20 10:14, 10:17 

31:1, 31:24 72:17 10:20, 10:20 

32:20, 33:2 occasion 48:24 11:4, 11:17 

33:11, 35:19 occasions 12:9, 12:13 

35:20, 36:10 116:21 12:13, 12:19 

39:20, 40: 12 OCRs 14:18 12:22, 12:24 

40:22, 41:21 Oebker 116:16 13:8, 13:10 

42:12, 42:22 116:25, 118:4 13:12, 13:22 

44:13, 45:2 119:18, 121:6 14:1, 14:4 

46:6, 46:17 121:7 14:11, 14:15 

47:2, 47:20 offer 96:22 14:24, 15:6 

47:22, 49:6 offered 5:25, 7:6 15:11, 15:14 

50:4, 51:8 office 6:10, 6:20 15 :22, 15 :25 

51:21, 52:17 7:8, 7:9, 7:13 16:6, 16:9 

52:19, 54:12 17:10, 18:11 16:11, 16:19 

55:4, 55:10 19:13, 20:15 16:24, 17:3 

55:23, 56:9 24:2, 24:12 17:5,17:7 

58:6, 60:15 27:13, 28:5 17:16, 17:24 

64:20, 66:7 28:12, 28:17 18:8, 18:20 

66:19, 66:25 28:21, 29:11 18:24, 19:5 

67:24, 68:25 29:12, 29:15 19:10, 19:15 

69:20, 81:8 30:16, 35:24 19:23, 20:3 

100:1, 106:14 41:8, 41:15 20:17, 20:20 

126:23, 127:9 43:14, 52:4 21:1, 21:16 

129:5, 135:19 65:2, 65:7 21:19, 21:25 

136:2, 136:6 128:5, 145:17 22:4, 22:10 

136:20, 137:17 162:14 22:13, 22:16 

139:4, 148:19 officer 41 : 8 22:24, 23:2 

149:11, 149:24 66:12, 97:4 23:13, 24:6 

150:4, 150:9 163:18 24:21, 25:1 

150:13, 151:21 officers 5: 11 26:9, 26:19 

STRYKER REPORTING SERVICES 

26:23, 27:1 

27:8, 27:18 

27:23, 28:1 

28:10, 28:14 

28:14, 29:8 

30:6, 30:18 

30:23, 31:7 

31:11, 31:16 

31:20, 32:7 

32:23, 33:16 

33:19, 33:22 

33:25, 34:9 

34:17, 34:21 

35:2, 35:6 

35:16, 35:23 

36:15, 36:18 

36:24, 37:5 

37:25, 38:21 

38:24, 39:2 

39:8, 39:13 

39:16, 40:1 

40:5, 40:9 

40:19, 41:2 

41:6, 41:12 

41:18, 41:24 

42:3, 42:3, 42:8 

42:16, 42:19 

42:24, 43:6 

43:11, 43:17 

43:23, 43:25 

44:5, 44:17 

44:21, 44:24 

45:10, 45:18 

46:23, 47:5 

47:9, 47:12 

48:23, 49:9 

49:16, 49:20 

50:11, 50:15 

50:23, 51:11 

51:11, 51:14 

51:23, 52:1 

52:6, 52:11 

53:11, 53:20 

53:24, 54:2 

54:7, 54:17 

54:22, 55:6 

16 

2/1/2024 

55:21, 56:2 

56:5, 56:17 

56:22, 56:24 

57:11, 57:14 

57:19, 57:25 

58:15, 58:20 

58:23, 59:6 

59:24, 60:9 

60:25, 61:8 

62:17, 62:21 

63:6, 63:11 

63:15, 63:19 

64:3, 64:12 

64:14, 64:16 

66:3, 66:22 

67:5, 68:8 

68:13, 68:20 

68:23, 69:8 

69:23, 70:16 

71:4, 71:7 

71:16, 71:18 

71:25, 72:5 

72:18, 72:23 

73:5, 73:5 

73:10, 73:14 

73:20, 74:1 

74:4, 74:7 

74:10, 74:21 

74:24, 74:24 

75:3, 75:6 

75:12, 75:15 

75:20, 75:25 

76:3, 76:5, 76:8 

76:8, 76:15 

76:15, 76:19 

76:23, 77:5 

77:12, 77:19 

77:23, 78:3 

78:22, 79:1 

79:3, 79:8 

79:13, 79:19 

80:1, 80:3, 80:6 

80:9, 80:12 

80:17, 80:19 

80:21, 81:6 

81:21, 82:2 

(817) 494-0700

APPENDIX 31

Case 4:22-cv-00343-Y Document 206 Filed 02/16/24 Page 34 of 73 PageID 4830
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STRYKER REPORTING SERVICES (817) 494-0700

 IN THE UNITED STATES DISTRICT COURT

 FOR THE NORTHERN DISTRICT OF TEXAS

 FORT WORTH DIVISION

EUGENIO VARGAS, §

 §

Plaintiff/ §

Counterclaim Defendant, §

 § Civil Action No.

VS. § 4:22-cv-430-Y

§

ASSOCIATION OF § Judge Terry R. Means

PROFESSIONAL FLIGHT §

ATTENDANTS, et al., §

 §

Defendants/ §

Counterclaim Plaintiff. §

 -----------------------------------

 VIDEOTAPED ORAL DEPOSITION OF

 EUGENIO VARGAS

VOLUME 1

 FEBRUARY 2, 2024

 -----------------------------------

 VIDEOTAPED ORAL DEPOSITION OF EUGENIO VARGAS,

 produced as a witness at the instance of the

 Defendants/Counterclaim Plaintiff, and duly sworn, was

 taken in the above-styled and -numbered cause on

 February 2, 2024, from 10:03 a.m. to 11:47 a.m., before

 Angela L. Mancuso, CSR No. 4514 in and for the State of

 Texas, reported by machine shorthand, at Springhill

 Suites - DFW Airport South/Centreport, 4360 Highway 360,

 Fort Worth, Texas, pursuant to the Federal Rules of

 Civil Procedure, Notice, and any provisions stated on

 the record.

APPENDIX 32

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2

STRYKER REPORTING SERVICES (817) 494-0700

2

1 A P P E A R A N C E S

2

 FOR THE PLAINTIFF/COUNTERCLAIM DEFENDANT:

3

 MS. KERRI PHILLIPS

4 K.D. PHILLIPS LAW FIRM, PLLC

6010 West Spring Creek Parkway

5 Plano, Texas 75024

(972) 327-5800

6 kerri@KDphillipslaw.com

7

 FOR THE DEFENDANTS/COUNTERCLAIM PLAINTIFF ASSOCIATION OF

8 PROFESSIONAL FLIGHT ATTENDANTS AND DEFENDANTS JULIE

 HEDRICK AND ERIK HARRIS:

9

 MR. JEFFREY A. BARTOS

10 GUERRIERI, BARTOS & ROMA, P.C.

 1900 M Street, N.W.

11 Suite 700

 Washington, D.C. 20036

12 (202) 624-7400

 jbartos@geclaw.com

13

 MS. CHARLETTE L. BRODERICK

14 Association of Professional Flight Attendants

 1004 West Euless Boulevard

15 Euless, Texas 76040

(682) 301-8454

16 cmatts@apfa.org

17

 ALSO PRESENT:

18

 Mr. Erik Harris, APFA National Treasurer

19

 Ms. Michelle Cliatt, APFA Legal Assistant

20

 Mr. John Hines, Videographer

21 Elite Video Productions

 3018 Commerce Street

22 Dallas, Texas 75226

(214) 747-1952

23

24

25

3

1 TABLE OF CONTENTS

PAGE

2

 Appearances...................................... 2

3

 EUGENIO VARGAS, VOLUME 1

4

 Examination by Mr. Bartos........................ 5

5

 Changes and Signature............................ 51

6 Reporter's Certification......................... 53

7 EXHIBITS

 NUMBER DESCRIPTION PAGE

8

 Exhibit 1 Affidavit of Eugenio Vargas in 10

9 Support of Motion for Summary Judgment

 [Appendix 56-61]

10

 Exhibit 2 Plaintiff's Amended Complaint 12

11

 Exhibit 3 9/18/19 letter from Susannah Bender 29

12 to Eugenio Vargas

13 Exhibit 4 11/8/19 letter from Susannah Bender 30

 to Eugenio Vargas

14

 Exhibit 5 1/10/20 APFA Installment Promissory 34

15 Note

16

17

18

19

20

21

22

23 REPORTER'S NOTE:

24 Quotation marks are used for clarity and do

 not necessarily reflect a direct quote.

25

4

1 P R O C E E D I N G S

2 (February 2, 2024, 10:03 a.m.)

3 THE VIDEOGRAPHER: This is Tape 1 in the

4 video deposition of Eugenio Vargas, in the matter of

5 Robert Ross versus Association of Professional Flight

6 Attendants, et al., in the U.S. District Court, for the

7 Northern District of Texas, Fort Worth Division. Today

8 is Friday, February 2nd, 2024. We are now on record at

9 10:03 a.m.

10 Will the attorneys please introduce themselves

11 for the record.

12 MR. BARTOS: Jeffrey Bartos, attorney for

13 the APFA defendants.

14 MS. BRODERICK: Charlette Broderick,

15 attorney for APFA.

16 MS. PHILLIPS: Kerri Phillips, attorney

17 for Eugenio Vargas.

18 MR. BARTOS: I'd like to just make a

19 correction on the record. I think in the opening the

20 videographer referenced -- there is a related case of

21 Ross. The Vargas and Ross cases are two separate cases,

22 and we'll make sure that the court reporter has the

23 correct caption.

24 (Witness sworn by reporter)

25 EUGENIO VARGAS,

5

1 having been first duly sworn, testifies as follows:

2 EXAMINATION

3 BY MR. BARTOS:

4 Q. Good morning, Mr. Vargas.

5 A. Good morning.

6 Q. Can you tell me what you did to prepare for

7 your deposition today.

8 MS. PHILLIPS: Objection. I'm directing

9 my client not to answer. It's privileged.

10 Q. I'm not asking anything you might have

11 discussed with your attorney. I'm just asking you, what

12 did you do to prepare for your deposition today?

13 A. Woke up, had coffee. That was it.

14 Q. Did you review any documents to get ready?

15 A. No.

16 Q. Did you discuss with Mr. Ross his deposition

17 yesterday?

18 A. No.

19 Q. Can you describe, please, any education you've

20 had since high school.

21 A. Some college.

22 Q. Where did you go to college?

23 A. City College of New York.

24 Q. Okay. And how many years did you do at City

25 College?

APPENDIX 33

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26

1 Q. Okay.

2 MS. PHILLIPS: Objection.

3 Q. Is that what you did in 2018?

4 MS. PHILLIPS: Objection.

5 A. In consultation with Rene, yes.

6 Q. Okay. And, when the time came later in 2018

7 to calculate payments that were due to you, to Marcy

8 Dunaway, and Nena Martin, you used the same formula.

9 Correct?

10 MS. PHILLIPS: Objection; form. It's a

11 leading question.

12 A. Again, in consultation with Rene Berthelot,

13 yes.

14 Q. Okay. Now, after you left office when your --

15 your term as treasurer ended, did you become aware at

16 some point that certain members had raised an issue with

17 the board of directors about the end-of-your-term

18 payouts?

19 MS. PHILLIPS: Objection; form.

20 Q. Do you remember learning about that?

21 MS. PHILLIPS: Objection; form.

22 A. Yes, I remember.

23 Q. Okay. And --

24 A. Kind of.

25 Q. Okay. And, at the time of those complaints,

27

1 is it right that Lori Bassani was the president of APFA?

2 MS. PHILLIPS: Objection; form. You're

3 leading the witness.

4 A. Yes, Lori Bassani was the president.

5 Q. Okay. And Lori Bassani was also a, like you,

6 legacy American flight attendant. Right? She was not a

7 legacy US Airways?

8 MS. PHILLIPS: Objection; form. You're

9 leading the witness.

10 A. I believe so, yes.

11 Q. Okay. And, at the time after you, was Craig

12 Gunter the treasurer?

13 MS. PHILLIPS: Objection; leading the

14 witness.

15 A. At the time?

16 Q. After you stopped being treasurer, Mr. Gunter

17 was treasurer. Is that right?

18 A. Yes.

19 Q. Julie Hedrick and Erik Harris were not holding

20 any national office at that time, were they?

21 MS. PHILLIPS: Objection; leading the

22 witness.

23 A. They were not.

24 Q. Okay. Now, did you become aware or did you

25 learn from the APFA that the board of directors had --

28

1 in 2019 had determined that you and Ms. Dunaway and

2 Ms. Martin may have been overpaid at the end of your

3 term?

4 MS. PHILLIPS: Objection.

5 Q. Do you remember learning about that?

6 MS. PHILLIPS: Objection; form.

7 A. I learned from Craig.

8 Q. Craig Gunter?

9 A. Yes.

10 Q. Okay. How did Mr. Gunter communicate that to

11 you? And what I mean is did he call you? Did you get a

12 letter?

13 A. I'm not a hundred percent sure.

14 Q. Okay.

15 A. I believe it was -- I don't know.

16 Q. Okay. And what is your recollection about

17 what Mr. Gunter told you?

18 A. It's been so long. I mean --

19 Q. Okay. Okay. Do you remember learning about a

20 board of directors meeting that had decided that the

21 payments made at the end of your term were -- for

22 yourself, Ms. Martin, and Ms. Dunaway -- were

23 overpayments?

24 MS. PHILLIPS: Objection; form, leading.

25 A. I mean, I cannot say how I -- if I learned

29

1 from the board. I cannot.

2 Q. You don't remember that? It's okay. If you

3 don't remember, just tell me.

4 A. Yeah, I mean, I don't. I mean, it's been so

5 long.

6 Q. Okay. Do you remember receiving a series of

7 letters from APFA telling you that you -- you had made

8 an overpayment and you owed money back?

9 A. I remember getting letters, yes.

10 Q. Okay. We can mark as Exhibit 3 --

11 MS. PHILLIPS: I'm going to say

12 "Objection; hearsay" on any of these APFA documents.

13 (Deposition Exhibit 3 marked)

14 Q. If you could look at Exhibit 3, please, and

15 tell me if this is one of the letters you received in

16 2019.

17 MS. PHILLIPS: Objection; hearsay.

18 Q. Do you remember receiving that letter,

19 Mr. Vargas?

20 A. I remember receiving letters. I cannot tell

21 you it's this exact letter.

22 Q. Okay. You don't remember if you received that

23 particular letter or not?

24 A. This particular one, I cannot say.

25 Q. And you received more than one letter in that

APPENDIX 34

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30

1 same rough time period about the overpayment?

2 A. I mean, I --

3 Q. We can mark as Exhibit 2 [sic] a letter dated

4 November 8th, 2019.

5 MS. PHILLIPS: Objection; hearsay.

6 (Deposition Exhibit 4 marked)

7 Q. And I'd ask you, Mr. Vargas, do you remember

8 receiving this letter? If you can pass the extra to

9 your counsel, I'd appreciate it. And I'll just say for

10 the record these were produced by your counsel in

11 discovery in this case.

12 Do you remember receiving the November 8th,

13 2019, letter?

14 A. Are you going to let me read it or not?

15 Q. Feel free.

16 A. Okay. I read it.

17 Q. Okay. Do you remember receiving that letter?

18 A. I said earlier, I remember receiving letters.

19 Q. I'm asking, do you remember receiving that

20 letter?

21 A. Not this particular letter. I cannot say that

22 it's a letter I received.

23 Q. Okay. The -- whether or not you received it,

24 the second paragraph refers to a meeting held on

25 October 30th, 2019, to allow you to review the

31

1 independent auditor's calculations. Do you see that

2 sentence?

3 A. Yes.

4 Q. Okay. Do you remember having a meeting on

5 October 30th, 2019?

6 A. Yes.

7 Q. Okay. Where was that meeting?

8 A. At O'Neil's office.

9 Q. O'Neil, the auditor?

10 A. Yes.

11 Q. Okay. And Craig Gunter was there, wasn't he?

12 A. Yes.

13 Q. Okay. And what did you review at that

14 meeting?

15 A. They gave us -- I think it was -- I think it

16 was a sheet of paper with calculations that they had

17 made.

18 Q. Okay. And did you ask questions about what

19 was on the -- in the calculations?

20 A. Yes.

21 Q. Okay. And what was your view of those

22 calculations, about whether they were right or wrong?

23 A. The amount that they were saying?

24 Q. Correct.

25 A. I didn't agree with them.

32

1 Q. Okay. Why not?

2 A. They couldn't produce the formula they used to

3 produce those numbers.

4 Q. Okay. And the formula that you're talking

5 about is the formula that you had used for yourself as

6 well as for Mr. Ross earlier in the year, right?

7 A. Can you --

8 MS. PHILLIPS: Objection; leading.

9 A. -- repeat that?

10 Q. Sure. You had used a formula to calculate the

11 vacation and sick payout for Mr. Ross. Do you remember?

12 A. (No answer).

13 MS. PHILLIPS: Objection.

14 Q. And you used the same formula for yourself,

15 Ms. Martin, and Ms. Dunaway. Correct?

16 MS. PHILLIPS: Objection; leading.

17 A. In consultation with Rene, yes.

18 Q. Okay. And do you remember, in your meeting

19 with Mr. Gunter, telling him that -- or in connection

20 with that meeting where Mr. Gunter was present, telling

21 Mr. Gunter that if the calculation was wrong as to you

22 and Ms. Martin and Ms. Dunaway, it was also wrong as to

23 Bob Ross?

24 MS. PHILLIPS: Objection; leading.

25 A. I mean, I cannot be a hundred percent sure

33

1 that those were the same exact words that were used.

2 Q. Uh-huh. Okay. But the gist of what I said --

3 A. Yes.

4 Q. -- you told Mr. Gunter?

5 A. Yes.

6 Q. And, in fact, you testified about that in your

7 Article VII arbitration to that conversation. Right?

8 MS. PHILLIPS: Objection; leading.

9 A. I'll have to go back and review my transcript.

10 Q. Okay. We could look at the transcript and

11 figure that out. Okay.

12 A. (Nodding head up and down).

13 Q. Ultimately, after a series of letters and

14 after your meeting, you did enter into a promissory note

15 agreement to pay back the money you had overpaid.

16 Correct?

17 A. Yes.

18 Q. Okay. And, under that promissory note, you

19 agreed to pay back 22 consecutive payments. Does that

20 sound right?

21 MS. PHILLIPS: I think we need to take a

22 break, please.

23 A. I can't answer that. I mean, I would have to

24 look at the promissory note --

25 Q. Okay.

APPENDIX 35

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10

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34

1 A. -- that I signed.

2 MS. PHILLIPS: We need to take a break.

3 MR. BARTOS: All right. I'm going to

4 object to the repeated breaks. We're going to run out

5 of time.

6 MS. PHILLIPS: I'm going to take a break

7 of five minutes. Thank you.

8 THE VIDEOGRAPHER: Go off the record?

9 MR. BARTOS: Yes.

10 THE VIDEOGRAPHER: We're off record at

11 11:28 a.m.

12 (Recess from 11:28 a.m. to 11:30 a.m.)

13 (Deposition Exhibit 5 marked)

14 THE VIDEOGRAPHER: We're back on record

15 at 11:30 a.m.

16 BY MR. BARTOS:

17 Q. Mr. Vargas, you have in front of you a

18 document marked as Exhibit 5. It says across the top,

19 Association of Professional Flight Attendants, APFA

20 Installment Promissory Note. And then at the bottom

21 there is a signature.

22 And my first question is, is that your

23 signature?

24 A. What was your question?

25 Q. Is that your signature at the bottom?

35

1 A. It looks like my signature.

2 Q. Did you sign the APFA Installment Promissory

3 Note?

4 A. I signed an -- I signed one promissory note,

5 yes.

6 Q. And did you make payments of $172.62 every

7 month?

8 A. Yes.

9 Q. Okay.

10 A. I mean, I'm not going to -- the amount I'm not

11 going to question. I mean, I don't know if this is what

12 I signed, but I did make payments every month.

13 Q. Okay. And have you completed all the payments

14 under your promissory note?

15 A. Yes.

16 Q. And do you recall telling the Article VII

17 arbitrator that you took full responsibility for the

18 overpayment, if you remember?

19 A. I don't.

20 Q. And you're aware that Ms. Martin also agreed

21 to repay the amount of overpayment that was to her?

22 A. I don't know.

23 Q. You don't know?

24 A. (No answer).

25 Q. She never told you?

36

1 A. I don't speak to Marcy.

2 Q. Nena Martin.

3 A. I don't know what Nena did.

4 Q. You don't speak to Nena Martin?

5 A. Oh, I speak to Nena.

6 Q. Okay. You just don't know?

7 A. I don't know.

8 Q. What about Marcy Dunaway?

9 MS. PHILLIPS: Objection; hearsay.

10 Q. Do you know if Marcy Dunaway --

11 A. Didn't you just ask me about Marcy and I

12 responded?

13 Q. No. I asked you about Nena, and I think you

14 answered about Marcy.

15 A. I don't know if she paid or not.

16 Q. Okay. And isn't it true that, of you,

17 Ms. Martin, Ms. Dunaway, and Mr. Ross, the only person

18 who has not repaid the overpayment --

19 MS. PHILLIPS: Objection --

20 Q. -- is Mr. Ross? Isn't that right?

21 MS. PHILLIPS: -- speculation.

22 A. I don't know.

23 Q. You don't know.

24 MS. PHILLIPS: He can't confirm this.

25 MR. BARTOS: I'm sorry? I didn't hear

37

1 that.

2 MS. PHILLIPS: I said he can't -- it's

3 speculation. He doesn't know what Ross paid.

4 Q. Now, you participated in an arbitration under

5 Article VII of the APFA Constitution. Is that right?

6 A. Yes.

7 Q. Okay. And you were --

8 MS. PHILLIPS: Objection; leading.

9 Q. You were charged by two members, and that's

10 what led to that hearing. Correct?

11 A. I guess, yes.

12 Q. And before -- prior to the time of your own

13 Article VII arbitration, had you ever participated in

14 any capacity in any other Article VII arbitration?

15 A. Yes.

16 Q. And what was that?

17 A. It was with Mr. Morales.

18 MS. PHILLIPS: I need to take a brief

19 moment off the record with my client for a moment. I

20 want to make sure he clears the record on something that

21 he's testified to.

22 MR. BARTOS: Sure.

23 THE VIDEOGRAPHER: We're off record at

24 11:34 a.m.

25 (Recess from 11:34 a.m. to 11:35 a.m.)

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1 THE VIDEOGRAPHER: We're back on record

2 at 11:35 a.m.

3 BY MR. BARTOS:

4 Q. Mr. Vargas, you just had a consultation with

5 your counsel. Is that right?

6 A. Yes, I did.

7 Q. Do you want to change any of your answers

8 you've given thus far?

9 A. I want to go back to the promissory note

10 subject and say why I signed it.

11 Q. Okay. That wasn't my question I asked you.

12 A. But I want to say it.

13 Q. No. Your lawyer is allowed to ask you

14 questions.

15 The -- the -- where we were in my questioning

16 was a prior Article VII arbitration that you

17 participated in.

18 A. Yes.

19 Q. And you -- you said a name. I believe it was

20 Morales?

21 A. Mr. Morales.

22 Q. Okay. What was the -- was Mr. Morales the

23 party who was charged, or was he the charging party? Or

24 what -- what was his role in that case?

25 MS. PHILLIPS: The issue that we went off

39

1 the record for and discussed what he needs to go back

2 and clarify the record about is the promissory note.

3 MR. BARTOS: That's what he's testified

4 to. That's fine. But that's not a pending question.

5 Q. I'm asking you about the prior Article VII

6 arbitration. What was your role in that arbitration?

7 A. I was charged party from Mr. Morales, and then

8 I became the charging party.

9 Q. Okay. So just to clarify for my sake,

10 Mr. Morales charged you with some violation?

11 A. Yes.

12 Q. Okay. And then eventually you charged

13 Mr. Morales with a violation. Is that -- do I

14 understand that correctly?

15 A. I mean, yes.

16 Q. Okay. Roughly, when was this?

17 A. Between 2016 and 2018. 2018.

18 Q. So was it while you were national treasurer?

19 A. Correct.

20 Q. Okay. What was the -- what was Mr. -- what

21 did Mr. Morales charge you with?

22 A. I cannot give you specific.

23 Q. You don't recollect?

24 A. I mean, I will have to go back and --

25 Q. I'm just asking in general terms.

40

1 A. And I'm telling you I cannot give specific.

2 Q. You have no idea?

3 A. No. I mean, I will have to go back and --

4 Q. Was it financial?

5 A. I don't remember.

6 Q. You charged Mr. Morales with something, then,

7 after he charged you. Is that right?

8 A. Yes.

9 Q. Okay. What did you charge him with? Do you

10 remember that?

11 A. Not all the specifics.

12 Q. What about generally?

13 A. It was that his charges didn't go forward or

14 wouldn't have any --

15 MS. PHILLIPS: He's already -- objection.

16 MR. BARTOS: He's in the middle of his

17 answer.

18 MS. PHILLIPS: No. Objection. He's

19 answered that he does not know, and you are badgering

20 him. He has answered this. He has answered that he

21 does not recall.

22 MR. BARTOS: No. I think he was

23 answering right now how much he did recall.

24 MS. PHILLIPS: Objection. He has asked

25 and answered. You are badgering him.

41

1 Q. Mr. Vargas, you charged Mr. Morales with a

2 violation under Article VII. Correct?

3 A. Yes.

4 Q. Okay. And the violation had to do with the

5 lack of merit or lack of evidence of his charges against

6 you. Is that fair to say?

7 A. Yes.

8 Q. Okay. When -- his charges against you, were

9 they dismissed by the arbitrator?

10 A. I mean, I don't know specific what's the word

11 that they use.

12 Q. Well, did you have an arbitration with

13 witnesses and testimony in the charges against you?

14 A. I don't recall.

15 Q. You don't recall. Okay.

16 Did you -- in your charges against

17 Mr. Morales, did you have a hearing with an arbitrator

18 and witnesses?

19 A. I mean, there was one -- I remember there was

20 a hearing. I cannot remember if it was when I was

21 getting charged or when I was charging. There was a

22 hearing, yes, but I cannot be for sure that --

23 Q. Okay.

24 A. -- which one it was.

25 Q. Okay. In your charges that you brought, did

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1 you get any -- an order in your favor from the

2 arbitrator?

3 A. I don't remember what was the outcome,

4 totally.

5 Q. Did you ever sue Mr. Morales in court?

6 A. No.

7 Q. Have you ever been a party in a lawsuit

8 besides this case?

9 A. No.

10 Q. You've never sued any -- never sued anybody

11 else?

12 A. No.

13 Q. Okay. And you've never been sued by anybody?

14 A. I don't think so.

15 Q. Okay.

16 MS. PHILLIPS: Sir, I would like to take

17 this moment and go back and allow the opportunity for

18 Mr. -- no. I think he needs to correct the record as to

19 his testimony.

20 MR. BARTOS: No. You can ask him

21 questions when it's your turn. Right now it's my turn.

22 MS. PHILLIPS: No. I think that he needs

23 to correct the record.

24 MR. BARTOS: No.

25 MS. PHILLIPS: Mr. Vargas --

43

1 MR. BARTOS: I'm asking questions, not

2 you.

3 MS. PHILLIPS: He needs to correct the

4 record on his testimony for the promissory note.

5 MR. BARTOS: He is welcome to when he has

6 a question in that regard from someone who has the power

7 to question him. You're not asking the questions right

8 now.

9 MS. PHILLIPS: He's requested the

10 opportunity to clear the record on the testimony for his

11 promissory note.

12 MR. BARTOS: He'll be welcome to do so

13 later. Please stop interrupting my questioning.

14 BY MR. BARTOS:

15 Q. Now, you were charged in 2020, under

16 Article VII, by Melissa Chinery and Sandra Lee. Is that

17 right? Do you remember that?

18 A. Charged, yes.

19 MS. PHILLIPS: I want a break after this

20 question.

21 MR. BARTOS: We're not going to take more

22 breaks.

23 MS. PHILLIPS: Yeah, we're taking a

24 break. I'm entitled to a break whenever the deponent

25 wants a break.

44

1 MR. BARTOS: The deponent has not

2 indicated he wants a break.

3 THE WITNESS: I want a break.

4 MS. PHILLIPS: His representative has

5 indicated a break; so the deponent's representative is

6 taking a break.

7 MR. BARTOS: And I repeat my objection to

8 these repeated breaks.

9 MS. PHILLIPS: Well, you can -- on record

10 you can object to it. That's fine.

11 MR. BARTOS: And I have.

12 MS. PHILLIPS: That's fine. But if

13 you're not going to let him clarify his testimony that

14 he is a second -- English is his second language. It is

15 not his first language. He doesn't have a translator

16 here. He doesn't understand the words fully. This

17 is -- he is employed at American Airlines as a -- as a

18 translator, for the love of God.

19 He hasn't been given the opportunity for

20 somebody who can translate the words fully, in his

21 primary language. And you're shotgunning questions at

22 him, and you're not even allowing him the opportunity to

23 go back and fully explain things that you have put in

24 front of him.

25 So I am going to go on record and state the

45

1 fact that he would like the opportunity to state and

2 explain a document that you put in front of him.

3 MR. BARTOS: Can I continue with the

4 questioning, or are you taking a break?

5 MS. PHILLIPS: Are you going to allow him

6 to clarify his testimony?

7 MR. BARTOS: I'm going to continue

8 questioning.

9 MS. PHILLIPS: Are you going to allow him

10 the opportunity to clarify his testimony?

11 MR. BARTOS: I'm going to ask questions,

12 and he's going to answer them.

13 MS. PHILLIPS: Am I going to have to stop

14 the deposition at this point?

15 MR. BARTOS: I'm going to --

16 MS. PHILLIPS: Because, you know,

17 yesterday was an appalling display of behavior on your

18 part. I have to -- I have to state that it was just

19 embarrassing. It was embarrassing.

20 BY MR. BARTOS:

21 Q. Mr. Vargas, you learned in 2020 that you

22 were -- had Article VII charges filed against you by

23 Melissa Chinery and Sandra Lee. Correct?

24 MS. PHILLIPS: Mr. Bartos --

25 Q. Is that right?

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1 MS. PHILLIPS: -- are you going to allow

2 my client the opportunity to clarify the record --

3 MR. BARTOS: I am asking questions.

4 MS. PHILLIPS: -- as to his testimony?

5 Because I'm going to object that -- if you don't allow

6 him to clarify the record about his testimony on the

7 promissory note, then I'm going to object.

8 MR. BARTOS: You feel free to object.

9 I'm going to ask questions.

10 Q. Mr. Vargas --

11 MS. PHILLIPS: I am going to object, and

12 I'm going to take a break with my client.

13 MR. BARTOS: If you're going to get up

14 and leave, get up and leave. But I'm going to keep

15 asking questions.

16 MS. PHILLIPS: I'm going to stop the

17 deposition at this point because I think that you are

18 creating a circumstance that is hostile at this point.

19 This is not the way to conduct a deposition. You should

20 be investigating the actual facts. If you want to know

21 the facts as to what happened, then you should ask the

22 questions and find out the testimony.

23 BY MR. BARTOS:

24 Q. Mr. Vargas, are you prepared to continue with

25 your testimony?

47

1 MS. PHILLIPS: Don't address my client.

2 You can address questions at me when we are discussing

3 the matters before -- in this case.

4 MR. BARTOS: We are here for a

5 deposition, and I'm going to conduct the deposition.

6 MS. PHILLIPS: Correct. We are here for

7 a deposition, and we are discussing matters pertaining

8 to this case. So you and I can discuss and hammer out

9 issues relating to this case.

10 MR. BARTOS: You will have the full right

11 to ask Mr. Vargas whatever questions you want. I am

12 asking questions now. And I need to be permitted to ask

13 my questions.

14 MS. PHILLIPS: I think we need to stop.

15 I think we need to stop.

16 MR. BARTOS: I am not stopping.

17 MS. PHILLIPS: Well, I am. I am

18 stopping. And I think that we need -- at this point we

19 need to stop, and we can schedule something with the

20 Court and find out what -- what the next steps need to

21 be to come to a resolution on something as simple as a

22 confidentiality order, as something as simple as a

23 deposition and -- and whether or not a break needs to

24 take place, whether or not lunch needs to be 30 minutes

25 or -- or, you know, whether or not Mr. Ross can stand up

48

1 while you ask him questions and whether or not

2 Mr. Vargas can clarify his testimony on record.

3 Are you asking questions for purposes of

4 discovering what -- what actually happened, or are you

5 asking questions so that you can tilt the stage in your

6 favor?

7 MR. BARTOS: I'm here to take the

8 deposition as ordered by the Court, and I intend to keep

9 doing so as long as you're here.

10 MS. PHILLIPS: Well, unfortunately, I am

11 not of the opinion that you are going to ask questions

12 and not allow my client the opportunity to clarify a

13 response when English is not his primary language --

14 MR. BARTOS: He will have every

15 opportunity to answer --

16 MS. PHILLIPS: -- and he can't clarify a

17 response.

18 MR. BARTOS: -- when you get to ask

19 questions.

20 MS. PHILLIPS: If you're not going to

21 allow him to --

22 MR. BARTOS: I go first.

23 MS. PHILLIPS: Are you going to allow him

24 to clarify his testimony?

25 MR. BARTOS: You are welcome to ask any

49

1 questions you want when it's your turn. Please stop

2 interfering with my deposition.

3 MS. PHILLIPS: Are you going to allow him

4 to clarify his response?

5 MR. BARTOS: I've answered your question.

6 MS. PHILLIPS: You did not. You answered

7 my question --

8 BY MR. BARTOS:

9 Q. Mr. Vargas --

10 MS. PHILLIPS: -- with a different -- are

11 you going to allow him to clarify his testimony?

12 MR. BARTOS: Please stop interfering with

13 the deposition.

14 MS. PHILLIPS: I'm going to end this if

15 you don't allow him to clarify his testimony.

16 MR. BARTOS: Please stop interfering with

17 my deposition. You will have every right to ask him a

18 question when I'm done.

19 MS. PHILLIPS: You have -- you can answer

20 my question. Will you allow him to clarify his

21 testimony? If you don't, we're done.

22 MR. BARTOS: He is allowed to answer your

23 questions when you ask him your questions when I am

24 finished.

25 MS. PHILLIPS: It's a yes-or-no question.

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1 Will you allow him to clarify his testimony? Yes or no?

2 MR. BARTOS: When you ask him

3 questions --

4 MS. PHILLIPS: We're done. Let's go.

5 MR. BARTOS: -- he can testify what he

6 wants.

7 I object to your leaving. I am going to ask

8 for --

9 MS. PHILLIPS: I object to your, you

10 know -- I object to this entire situation.

11 MR. BARTOS: We will seek full relief

12 from the Court.

13 (Ms. Phillips and the Witness exit

14 the room)

15 MR. BARTOS: We can stop the record.

16 That's fine.

17 THE VIDEOGRAPHER: Off the record at

18 11:47 a.m.

19 (Proceedings adjourned at 11:47 a.m.)

20 (Per Federal Rule of Civil Procedure

21 30(e)(1), signature was requested via

22 email by Counsel after completion of the

23 deposition)

24

25

51

1 CHANGES AND SIGNATURE

2 WITNESS NAME: EUGENIO VARGAS, VOLUME 1

 DEPOSITION DATE: FEBRUARY 2, 2024

3 PAGELINE CHANGE/REASON

4 ________ ______________________________________________

5 ________ ______________________________________________

6 ________ ______________________________________________

7 ________ ______________________________________________

8 ________ ______________________________________________

9 ________ ______________________________________________

10 ________ ______________________________________________

11 ________ ______________________________________________

12 ________ ______________________________________________

13 ________ ______________________________________________

14 ________ ______________________________________________

15 ________ ______________________________________________

16 ________ ______________________________________________

17 ________ ______________________________________________

18 ________ ______________________________________________

19 ________ ______________________________________________

20 ________ ______________________________________________

21 ________ ______________________________________________

22 ________ ______________________________________________

23 ________ ______________________________________________

24 I, EUGENIO VARGAS, have read the foregoing

25 deposition and hereby affix my signature that same is

52

1 true and correct, except as noted above.

2

3 ____________________________

 SIGNATURE OF WITNESS

4 STATE OF __________ x

5 COUNTY OF _________ x

6

7 Before me, _____________________, on this day

8 personally appeared EUGENIO VARGAS, known to me (or

9 proved to me under oath or through ___________)

10 (description of identity card or other document) to be

11 the person whose name is subscribed to the foregoing

12 instrument and acknowledged to me that they executed the

13 same for the purposes and consideration therein

14 expressed.

15 GIVEN UNDER MY HAND AND SEAL of office this

16 _____ day of _________________, 2024.

17

18

19

20 (Seal) ____________________________

Notary Public in and for the

21 State of ___________.

22

23

24

25

53

1 IN THE UNITED STATES DISTRICT COURT

 FOR THE NORTHERN DISTRICT OF TEXAS 

2 FORT WORTH DIVISION

3 EUGENIO VARGAS, §

 §

4 Plaintiff/ §

Counterclaim Defendant, §

5 § Civil Action No.

VS. § 4:22-cv-430-Y

6 §

ASSOCIATION OF § Judge Terry R. Means

7 PROFESSIONAL FLIGHT §

ATTENDANTS, et al., §

8 §

Defendants/ §

9 Counterclaim Plaintiff. §

10 REPORTER'S CERTIFICATION

11 VIDEOTAPED ORAL DEPOSITION OF EUGENIO VARGAS

12 VOLUME 1

13 FEBRUARY 2, 2024

14

15 I, Angela L. Mancuso, Certified Shorthand Reporter

16 in and for the State of Texas, hereby certify to the

17 following:

18 That the witness, EUGENIO VARGAS was duly sworn by

19 the officer and that the transcript of the oral

20 deposition is a true record of the testimony given by

21 the witness;

22 That the original deposition was delivered to

23 Ms. Kerri Phillips for examination and signature by the

24 witness;

25 That the time used by the parties is as follows:

APPENDIX 40

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54

1 MS. KERRI PHILLIPS: 0 minutes

2 MR. JEFFREY A. BARTOS: 58 minutes

3 I further certify that pursuant to FRCP Rule

4 30(e)(1) that the signature of the deponent was

5 requested by the Counsel for the deponent after the

6 completion of the deposition and that the signature is

7 to be before any notary public and returned within

8 30 days from date of receipt of the transcript. If

9 returned, the attached Changes and Signature page

10 contains any changes and the reasons therefor.

11 I further certify that I am neither attorney or

12 counsel for, nor related to or employed by, any of the

13 parties to the action in which this deposition is taken,

14 and further that I am not a relative or employee of any

15 attorney or counsel employed by the parties hereto, or

16 financially interested in the action.

17 Certified to by me on this the 7th day of February,

18 2024.

19

20

__________________________________

21 ANGELA L. MANCUSO, CSR 4514

Expiration Date: 10/31/24

22 Stryker Reporting

Firm Registration No. 806

23 1450 Hughes Road, Suite 230

Grapevine, Texas 76051

24 (817) 494-0700

25

APPENDIX 41

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Eugenio Vargas 

0 31:8, 52:15 31:21, 32:1 

officer 53: 19 32:4, 32:18 

O'Neil 16:17 Oh 6:18, 8:4 33:2, 33:10 

16:20, 16:22 36:5 33:11, 33:18 

17:4,31:9 okay 5:24, 6:2 33:25, 35:9 

O'Neil's 31 :8 6:11, 6:14, 7:24 35:13, 36:6 

oath 20:10 8:11, 8:15, 9:3 36:16, 37:7 

22:16, 52:9 9:5, 9:8, 9:11 38:11, 38:22 

object 34:4 9:13, 9:16, 9:21 39:9, 39:12 

44:10, 46:5 9:24, 10:2, 10:4 39:16, 39:20 

46:7, 46:8 10:7, 10:11 40:9, 41:4, 41:8 

46:11, 50:7 10:16, 10:19 41:15, 41:23 

50:9, 50:10 10:21, 10:24 41:25, 42:13 

objecting 25:14 11:7, 11:15 42:15 

25:16 12:10, 12:21 opening 4:19 

objection 5:8 12:24, 13:20 opinion 48:11 

15:11, 15:13 14:3, 14:4 opportunity 

15:23, 17:20 14:10, 14:15 42:17, 43:10 

17:24, 18:3 14:25, 15:2 44:19, 44:22 

18:13, 18:20 15:8, 15:19 45:1, 45:10 

18:24, 19:4 16:3, 16:11 46:2, 48:12 

19:9, 24:3 16:15, 16:19 48:15 

24:15, 24:19 16:22, 17:6 oral 1:11, 1:15 

25:1, 25:6 17:10, 17:14 53:11, 53:19 

25:13, 25:16 18:7, 18:10 order 42:1 

25:24, 26:2 19:6, 19:19 47:22 

26:4, 26:10 19:22, 20:1 ordered 48:8 

26:19, 26:21 22:2, 22:17 organization 

27:2, 27:8 22:22, 23:8 15:9 

27:13, 27:21 23:13, 23:15 original 53:22 

28:4, 28:6 23:18, 23:22 outcome 42:3 

28:24, 29:12 23:25, 24:7 outside 17: 8 

29:17, 30:5 24:9, 24:11 overpaid 28:2 

32:8, 32:13 24:18, 26:1 33:15 

32:16, 32:24 26:6, 26:14 overpayment 

33:8, 36:9 26:23, 26:25 29:8, 30:1 

36:19, 37:8 27:5, 27:11 35:18, 35:21 

40:15, 40:18 27:24, 28:10 36:18 

40:24, 44:7 28:14, 28:16 overpayments 

obligations 28:19, 28:19 28:23 

16:12 29:2, 29:6 oversaw 19:6 

October 30:25 29:10, 29:22 oversight 14:12 

31:5 30:16, 30:17 owed 29:8 

office 17: 11 30:23, 31:4 

19:3, 19:8 31:7, 31:11 

26:14, 27:20 31:13, 31:18 

STRYKER REPORTING SERVICES 

p 

P.C 2:10

page 3:1, 3:7

19:20, 20:7 

21:9, 54:9 

PAGELINE 

51:3 

paid 36:15, 37:3 

paper 31:16 

paragraph 

19:18, 19:20 

20:2, 20:9 

20:18, 21:8 

23:8, 24:24 

30:24 

paragraphs 

23:18, 23:22 

24:1 

Parkway 2:4 

part 45:18 

participated 

37:4, 37:13 

38:17 

particular 29:23 

29:24, 30:21 

parties 53:25 

54:13, 54:15 

parts 16:11 

party 38:23 

38:23, 39:7 

39:8, 42:7 

pass 10:13, 30:8 

pay 33:15, 33:19 

payments 19:7 

19:23, 24:1 

24: 12, 24:25 

25:20, 26:7 

28:21, 33:19 

35:6, 35:12 

35:13 

payout 32:11 

payouts 26:18 

pending 39:4 

percent 16:14 

20:13, 23:5 

6 

2/2/2024 

28:13, 32:25 

period 30:1 

permitted 47:12 

person 16:19 

16:22, 36:17 

52:11 

personally 20:7 

52:8 

pertaining 47:7 

Phillips 2:3, 2:4 

4:16, 4:16, 5:8 

10:13, 10:23 

12:1, 12:21 

15:11, 15:23 

17:20, 17:24 

18:3, 18:13 

18:20, 18:24 

19:4, 19:9 

20:16, 21:2 

21:6, 21:13 

21:24, 24:3 

24:15, 24:19 

24:22, 25:1 

25:6, 25:13 

25:16, 25:24 

26:2, 26:4 

26:10, 26:19 

26:21, 27:2 

27:8, 27:13 

27:21, 28:4 

28:6, 28:24 

29:11, 29:17 

30:5, 32:8 

32:13, 32:16 

32:24, 33:8 

33:21, 34:2 

34:6, 36:9 

36:19, 36:21 

36:24, 37:2 

37:8, 37:18 

38:25, 40:15 

40:18, 40:24 

42:16, 42:22 

42:25, 43:3 

43:9, 43:19 

43:23, 44:4 

(817) 494-0700

APPENDIX 42

Case 4:22-cv-00343-Y Document 206 Filed 02/16/24 Page 45 of 73 PageID 4841
Lincoln General Insurance Company v. Maxwell, Not Reported in Fed. Supp. (2018)

2018 WL 4610533

 © 2024 Thomson Reuters. No claim to original U.S. Government Works. 1

2018 WL 4610533

Only the Westlaw citation is currently available.

United States District Court, N.D. Texas, Dallas Division.

LINCOLN GENERAL INSURANCE

COMPANY (in Liquidation), Plaintiff,

v.

James Thornton MAXWELL, Defendant.

CIVIL ACTION NO. 3:16-CV-03198-B

|

Signed 09/26/2018

Attorneys and Law Firms

William N. Radford, Thompson Coe Cousins & Irons LLP,

Bradford K. Burdette, Glast, Phillips & Murray, P.C., David

B. Winter, Zelle Hofmann Voelbel & Mason LLP, Dallas, TX,

Albert B. Miller, York, PA, for Plaintiff.

John W. Arnold, Bailey Crowe Arnold & Majors LLP, Dallas,

TX, for Defendant.

James Douglas Maxwell, Dallas, TX, pro se.

ORDER ADOPTING FINDINGS, CONCLUSIONS,

AND RECOMMENDATION OF THE UNITED STATES

MAGISTRATE JUDGE

JANE J. BOYLE, UNITED STATES DISTRICT JUDGE

*1 Before the Court is Magistrate Judge Rebecca

Rutherford's Findings, Conclusions, and Recommendation

(Doc. 253) on Plaintiff Lincoln General Insurance Company's

Motion to Enforce Court's Order and for Sanctions Against

James T. Maxwell (Doc. 246) and Defendant James

Thornton Maxwell's Objections to Findings, Conclusions,

and Recommendation of the United States Magistrate Judge

(Doc. 256). Before Defendant James Thornton Maxwell's,

a/k/a Jim Maxwell, objections were filed, this Court

entered its Order Adopting Findings, Conclusions, and

Recommendation of the United States Magistrate Judge (Doc.

255) on September 20, 2018. One day later, on September

21, 2018, Maxwell filed his objections. Pursuant to Federal

Rule of Civil Procedure 6(d), Maxwell had an additional

three days to file his objections to the Findings, Conclusions,

and Recommendations of the United States Magistrate Judge

because he was served via certified mail. Thus, on September

21, 2018 Maxwell's objections were timely.

The Court will therefore VACATE its September 20, 2018

Order Adopting Findings, Conclusions and Recommendation

of the United States Magistrate Judge (Doc. 255) and conduct

a de novo review of the pleadings, files, and record in the case

pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil

Procedure 72(b), as well as the Findings, Conclusions, and

Recommendation of the United States Magistrate Judge and

Defendant Jim Maxwell's Objections thereto.

I.

BACKGROUND

The issue before the Court relates to Defendant Jim Maxwell's

abusive and dilatory conduct during post-judgment discovery

proceedings. The Court tried this case in 2013, which resulted

in a $16.5 million judgment in favor of Plaintiff. See Lincoln

General Insurance Co. v. U.S. Auto Insurance Services Inc.,

et al., No. 3:10–CV–2307–B (N.D. Tex. Jan. 25, 2017)

(Doc. 170). On November 15, 2016, after a lengthy appeals

process, the Court determined it was appropriate to sever the

remaining claims against Defendants. Doc. 227, Order on

Severance. Pursuant to that Order, this civil case (No. 3:16–

CV–3198) was opened against Defendant James (“Jim”)

Maxwell. Id. In that order, this Court also granted Plaintiff

“the right to fully pursue discovery concerning the financial

and personal assets of Doug Maxwell and Jim Maxwell in the

severed case.” Id. at 2.

After the severance order, Plaintiff served Defendant Jim

Maxwell with a Notice of Oral and Video Deposition and

a Subpoena Duces Tecum. Doc. 229, Pl.'s Mot. to Compel,

4. On March 23, 2017, Plaintiff took Maxwell's deposition,

but Maxwell provided only limited responsive documents and

refused to answer numerous questions. Id. On June 6, 2017,

Plaintiff moved the Court to compel Maxwell to respond to

the document requests and retake Maxwell's deposition. Id.

Plaintiff also requested sanctions. Id. On July 5, 2017, this

Court referred Plaintiff's motion to United States Magistrate

Judge Paul D. Stickney. Doc. 230, Order Referring Mot.

After conducting a hearing on this motion, Judge Stickney

granted the Plaintiff's motion on October 17, 2017. Doc. 241,

Order (“Judge Stickney's Order”). Judge Stickney's Order

required Maxwell to produce a number of documents related

to his financial status, and appear at another deposition

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where he was required to answer questions completely and

honestly. Id. Importantly, the Order also specifically warned

Maxwell: “Further abuse by Respondent [Maxwell] will

result in sanctions and the striking of his pleadings.” Id. at 2.

*2 However, despite Judge Stickney's clear admonition,

Maxwell still refused to comply. Plaintiff noticed a second

deposition, pursuant to Judge Stickney's Order, on November

16, 2017. Doc. 246, Pl.'s Mot. to Enforce Court's Order,

2. While Maxwell did appear for the deposition, he

failed to produce documents that were responsive to the

straightforward terms set out in Judge Stickney's Order.

See Doc. 253, Findings, Conclusions, and Recommendation

of the United States Magistrate Judge, 8–9. Additionally,

Plaintiff characterized Maxwell's testimony during the

deposition as “evasive, combative, and misleading.” Id. at 9–

10.

On August 31, 2018, based on Maxwell's abusive behavior

at the deposition and disregard for document requests, Judge

Rutherford found that Maxwell “willfully ignored the Court's

warning and did not correct his behavior when he had

the opportunity.” Id. Further, Judge Rutherford found that

Maxwell demonstrated a pattern of “contumacious conduct”

towards his discovery obligations and this Court's orders

without any justifiable excuse. Id. at 10–11. Judge Rutherford

then, pursuant to Federal Rule of Civil Procedure 37(b)(2)

(A), recommended that this Court order the sanction Judge

Stickney originally warned of in the October 17, 2017 Order

—the striking of Maxwell's pleadings—because “no lesser

sanction would be sufficient to deter Respondent's behavior.”

Id. at 11. Judge Rutherford also recommended that Maxwell

pay Plaintiff's reasonable attorneys' fees and costs incurred

in bringing its Motion to Enforce Court's Order and for

Sanctions under Federal Rule of Civil Procedure 27(b)(2)(A).

II.

ANALYSIS

After conducting a de novo review of the motions,

responses, files, and records in this case, as well as the

Findings, Conclusions, and Recommendation of United

States Magistrate Judge Rutherford and Defendant Maxwell's

Objections, the Court is of the opinion that the Findings,

Conclusions, and Recommendation are correct. A district

court “has broad discretion under Rule 37(b) to fashion

remedies suited to the misconduct.” Pressey v. Patterson,

898 F.3d 1018, 1021 (5th Cir. 1990). However, typically,

to impose the severest of remedies under Rule 37(b)—e.g.,

striking pleadings, entering default judgment, or dismissing

the action with prejudice—a party's violation of a discovery

order must be committed willfully or in bad faith. Smith &

Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 488

(5th Cir. 2012); Plasticsource Workers Comm. v. Coburn, 283

F. App'x 181, 184 (5th Cir. 2008) (affirming default judgment

under Rule 37(b) based on willful violation of discovery

order). Additionally, the district court should find that “a

lesser sanction [under Rule 37(b) ] would not substantially

achieve the desired deterrent effect.” Coburn, 283 F. App'x at

184 (citing Smith v. Smith, 145 F.3d 335, 344 (5th Cir. 1998) ).

Here, this Court agrees with Magistrate Judge Rutherford's

findings and application of the law. Based on the

unambiguous requirements and warnings in Judge Stickney's

Order, Judge Rutherford had ample evidence to conclude

that Maxwell behaved willfully when he violated that Order.

Further, with good reason, Judge Rutherford concluded

that Maxwell's “pattern of contumacious conduct” in these

proceedings indicated that “no lesser sanction” would

be “sufficient to deter” Maxwell. Doc. 253, Findings,

Conclusions, and Recommendation, 10–11.

From his Objections, the Court is able to discern two specific

objections that Maxwell has raised in response to Judge

Rutherford's Findings, Conclusions, and Recommendation:

(1) that this Court should have ordered a protective order

based on counsel for Plaintiff's discovery requests; and (2)

that his discovery productions are, in fact, responsive to Judge

Stickney's Order.

*3 First, Maxwell argues that both his Motion to Dismiss

or for Protective Order (Doc. 235) and Plaintiff Lincoln

General Insurance Company's Response (Doc. 236) “have

been ignored by the Court without comment” and that he is

entitled to a protective order based on the “oppression and

undue burden” caused by Plaintiff's discovery requests. See

Doc. 256, Maxwell's Objs., 2–3. To start, Maxwell was put

on notice that “a party filing objections must specifically

identify those findings, conclusions, or recommendation to

which objections are being made.” Doc. 253, Findings,

Conclusions, and Recommendations, 12. Thus, Maxwell's

first objection is unrelated to Magistrate Judge Rutherford's

Findings, Conclusions, and Recommendation and can be

overruled on that ground alone. However, the Court will note

on January 9, 2018, Magistrate Judge Stickney denied his

motion after full briefing and a hearing because, in large

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part, Maxwell's Motion to Dismiss was a “reiteration of

his Response to Plaintiff's Motion to Compel.” Doc. 245,

Order Denying Mot. to Dismiss or for Protective Order,

2. Thus, Maxwell's Motion to Dismiss was considered and

subsequently denied after a hearing and full consideration

by Magistrate Judge Stickney. Maxwell's first objection is

overruled.

Next, Maxwell argues again, as he has in previous motions

(See Doc. 247, Def.'s Resp. to Pla.’s Mot. to Enforce Court's

Order and for Sanctions, 3–5 and Doc. 249, Def.'s Mot.

to Quash, 1–2), that his previous production is sufficiently

responsive to Judge Stickney's Order on October 17, 2017.

Doc. 256, Def.'s Objs., 4–5. Maxwell claims the flash drive

he produced covers the items Judge Stickney ordered him to

produce, except for documents that were previously produced

or that do not exist. Id. However, of the 360 pages of

documents produced in the flash drive, 323 were banking

documents related Sante Fe Insurance Company in 2010,

which were “marginally relevant” to the items he was ordered

to produced. Doc. 248, Pl.'s Reply in Support of Mot. To

Enforce, 3–4. Further, of the remaining 37 pages, it appears

that only a few of these were new and responsive documents.

Id. (noting that his 2016 tax returns and some K-1's related to

Neutron Depot were new documents). Thus, the Court finds

that Maxwell's objection that he produced all the requested

items in Judge Stickney's Order “to the maximum extent

possible” baseless. Maxwell's behavior and testimony at his

November 16, 2017 deposition further undercut his assertions

that he has fully complied with this Court's orders.1 The Court

overrules this objection as well.

1

See Doc. 246-2, Def.'s Oral Depo., 7–8 (testifying he

produced most of the documents from his file cabinet and

that they were mostly reproduction); Id. at 8–9 (testifying

the only third party he requested documents from was

his son-in-law, but he did not inform him or any other

party of Judge Stickney's Order); Id. at 18–19, (testifying

he made no effort to obtain documents related to money

transfers to his family or regarding the Maxwell Family

Trust, which were both items covered in Judge Stickney's

Order); Id. at 22 (testifying that in regard to corporate

and financial documents he was ordered to produced, he

attempted to obtain them by logging in to his account

online, and when that failed, he never contacted the bank

or made any additional effort to obtain them).

It is therefore ORDERED that the Findings, Conclusions,

and Recommendation of the United States Magistrate

Judge (Doc. 253) are ADOPTED, and Plaintiff Lincoln

General Insurance Company's Motion to Enforce Court's

Order and for Sanctions Against James T. Maxwell (Doc.

246) is GRANTED. Defendant James Thornton Maxwell's

Objections to Findings, Conclusions, and Recommendation

of the United States Magistrate Judge (Doc. 256) are

OVERRULED. This Court's September 20, 2018 Order

Adopting Findings, Conclusions, and Recommendation of the

United States Magistrate Judge (Doc. 255) is VACATED.

Accordingly, pursuant to Federal Rule of Civil Procedure

37(b)(2)(A), the Court ORDERS Defendant James Thornton

Maxwell's pleadings related to Plaintiff's remaining claims

against him be struck from the record. Thus, Maxwell's

Answer found at Lincoln General Insurance Co. v. U.S. Auto

Insurance Servs. Inc., et al., No. 3:10–CV–2307–B (N.D.

Tex. Sept. 20, 2011) (Doc. 68) is hereby STRUCK from

the record. The Court also ORDERS under Federal Rule

of Civil Procedure 37(b)(2)(C) that Maxwell pay Plaintiff's

reasonable attorneys' fees and costs incurred in bringing this

motion. Finally, Plaintiff Lincoln is ORDERED to file an

application for attorneys' fees and costs, accompanied by

supporting evidence establishing the reasonable amount to be

awarded under Rule 37(b)(2)(C) no later than October 10,

2018, fourteen days after the entry of this order.

*4 SO ORDERED.

All Citations

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Only the Westlaw citation is currently available.

United States District Court, N.D. Texas, Dallas Division.

MURILLO MODULAR

GROUP, LTD., Plaintiff,

v.

Ann SULLIVAN and Crenshaw,

Ware & Martin, P.L.C., Defendants.

No. 3:13-cv-3020-M

|

Signed 10/20/2016

Attorneys and Law Firms

Evan L. Van Shaw, David Welch, Janet R. Randle, Law

Offices of Van Shaw, Michael S. Alfred, Hallett & Perrin,

Dallas, TX, for Plaintiff.

D. Craig Brinker, E. Stratton Horres, Jr., Wilson, Elser,

Moskowitz, Edelman & Dicker, LLP, Susan A. Schwartz,

Henslee Schwartz LLP, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER1

1 Under Section 205(a)(5) of the E-Government Act of

2002 and the definition of “written opinion” adopted

by the Judicial Conference of the United States, this

is a “written opinion[ ] issued by the court” because

it “sets forth a reasoned explanation for [the] court's

decision.” It has been written, however, primarily for

the parties, to decide issues presented in this case, and

not for publication in an official reporter, and should be

understood accordingly.

DAVID L. HORAN, UNITED STATES MAGISTRATE

JUDGE

*1 Plaintiff Murillo Modular Group, Ltd. (“Murillo” or

“Plaintiff”) has filed a Motion to Compel Defendants to

Comply with Their Discovery Obligations [Dkt. No. 64] (the

“Discovery MTC”) and a Motion to Compel Ann Sullivan to

Respond to Deposition Questions [Dkt. No. 69] (the “Sullivan

Deposition MTC”), both of which Chief Judge Barbara M. G.

Lynn has referred to the undersigned United States magistrate

judge for determination pursuant to 28 U.S.C. § 636(b). See

Dkt. Nos. 66 & 71. Defendants Crenshaw, Ware & Martin,

P.L.C. (“CWM”) and Ann Sullivan (“Sullivan”; collectively

with CWM, “Defendants”) have filed responses to each

motion, see Dkt. Nos. 75 & 76, and Murillo has filed replies,

see Dkt. Nos. 80 & 81.

Defendants have also filed a Motion for Protective Order

[Dkt. No. 77] (the “MPO”), which Judge Lynn has also

referred to the undersigned for determination. See Dkt. No.

78.

The Court heard oral argument on all three motions on

October 18, 2016. See Dkt. No. 90.

For the reasons and to the extent explained below, the

Court DENIES Murillo's Motion to Compel Ann Sullivan

to Respond to Deposition Questions [Dkt. No. 69] and

GRANTS in part and DENIES in part Murillo's Motion

to Compel Defendants to Comply with Their Discovery

Obligations [Dkt. No. 64] and Defendants' Motion for

Protective Order [Dkt. No. 77].

Background

Murillo has sued Defendant Sullivan and her former law firm

of 35 years, CWM, for professional negligence and breach

of contract “regarding various litigation where Defendants

represented Plaintiff, including a lawsuit that ended in an

unfavorable settlement for Plaintiff.” Dkt. No. 80 at 1; see

Dkt. No. 36. “Specifically, and as set forth in Plaintiff's

Third Amended Complaint, Plaintiff claims that Defendants

committed malpractice with respect to entering into a flawed

and grossly inadequate settlement agreement, as well as with

respect to a commercially-unreasonable foreclosure sale of

certain HVAC Equipment.” Dkt. No. 69 at 1.

On September 6, 2016, CWM served objections to Plaintiff's

Second Request for Production Nos. 1, 2, 3, 5, 6, 9, 10,

15, and 16 and to Plaintiff's First Set of Interrogatories Nos.

14, 15, 16, 17, 18, and 19. In the Discovery MTC, Murillo

asserts that Defendants' objections are improper and that the

Court should compel Defendants to properly respond to the

discovery requests.

Murillo took Sullivan's deposition at her counsel's law firm

on July 20, 2016. In their Sullivan MTC, Murillo asserts

that, “[d]uring the deposition, Sullivan was evasive, nonresponsive, and refused to answer many critical questions

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related to the prosecution of Plaintiff's claims and the defenses

thereto” and that, “[d]espite efforts by Plaintiff's counsel

to convey the necessity and relevancy of the information

requested during Sullivan's deposition, Sullivan and her

counsel refused to cooperate.” Dkt. No. 69 at 1-2. Murillo

contends that Sullivan “and her counsel impeded, delayed,

and frustrated her fair examination on repeated occasions

in violation of Rule 30's requirements as shown in the full

and complete transcript of Sullivan's deposition.” Id. at 2.

The Sullivan MTC enumerates 12 “specific instances of

misconduct by Sullivan and her counsel during the July 20,

2016 deposition.” Id. at 3.

*2 Murillo “requests that, after reviewing the [cited]

testimony, the Court compel Sullivan to re-appear for the

resumption of her deposition for a reasonable period of

time to answer these remaining questions in a forthright,

accurate, and complete manner without improper obstruction

or disruption by herself or her counsel.” Id. at 6. Murillo

“believes that an additional deposition period of ninety

minutes will be sufficient, and proposes that her deposition be

scheduled to re-open immediately following the conclusion

of the deposition of Ryan Snow, for which the parties

are tentatively trying to schedule for during the month of

October.” Id.

Murillo also reports that it “is concerned that such deposition

tactics will be repeated with the upcoming deposition of

Mr. Snow and other of Defendants' witnesses that are in

the process of being set” and “respectfully requests that the

Court address this behavior in the context of providing an

admonishment against any future such conduct during the

depositions of Defendants' witnesses.” Id. Murillo “further

requests that the Court consider awarding Plaintiff its legal

fees and costs incurred in connection with this motion,

including the costs for re-opening Sullivan's deposition

(meaning, the attorneys' fees for the additional deposition

preparation and examination time as well as the costs

associated with the court reporter and videographer).” Id. at 7.

More specifically, Murillo explains that its two motions

to compel each “seek[ ] financial information regarding

Defendants and their financial motivations to induce Plaintiff

to settle the underlying lawsuit” and that Defendants'

“financial motivations are completely relevant to determine if

Defendants breached their duties owed to Plaintiff.” Dkt. No.

80 at 1; Dkt. No. 81 at 1.

In their MPO, Defendants move the Court for a protective

order directing Plaintiffs to restrain from “examining W.

Ryan Snow, Ann K. Sullivan, or any 30(b)(6) witness

of Defendants, in a manner designed or tending to

embarrass, annoy, or oppress.” Dkt. No. 77 at 1. “If

Defendants are ordered to produce further information,

Defendants request a protective order to permit Defendants

to provide Plaintiff with Defendants' financial[,] personal[,]

and business information with protection from unnecessary

and inappropriate dissemination,” but “[t]his request is made

without waiving the objections asserted by Defendants as

to any discovery, written or oral, in this case.” Id. at 1-2.

Defendants also request “that any information disclosed

by Defendants which reveals any proprietary business or

personal information be treated as “Confidential Material”

under a proposed protective order.” Id. at 2.

More specifically, Defendants

• “seek a protective order [under Federal Rules of Civil

Procedure 26(c)(1) and 30(d)(3)] in response to [written]

discovery request[s] from Plaintiff [and deposition

questioning of Sullivan] that exceed the scope of discovery

regarding Ann Sullivan's compensation with Crenshaw,

Ware, & Martin, and Crenshaw, Ware, & Martin's

financial information” and, specifically, “forbidding the

disclosure or discovery of Ann Sullivan's compensation

from Crenshaw, Ware, & Martin,” “forbidding any inquiry

into Ann Sullivan's compensation from Crenshaw, Ware,

& Martin,” “forbidding the disclosure or discovery of

Crenshaw, Ware, & Martin's financial information; or

in the alternative prescribing a discovery method other

than the one selected by the party seeking discovery,”

and “forbidding inquiry into Crenshaw, Ware, & Martin's

financial information”;

• seek a protective order from discovery regarding Sullivan's

departure from CWM, which Defendants assert exceeds the

scope of [Federal Rule of Civil Procedure] 26(b)(1) and,

specifically, “forbidding the disclosure or further discovery

of Ann Sullivan's basis for ending her employment with

Crenshaw, Ware, & Martin”;

*3 • seek “a protective order prohibiting the distribution of

any financial, business, proprietary or personal information

to any person not specifically employed by counsel in this

litigation or designated as the corporate representative for

this action”;

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• seek a protective order from further dissemination of

“portions of a report by Plaintiff's expert, which contain

inflammatory comments designed to harass, annoy and

otherwise impermissibly threaten Defendants” and which

Defendants have moved to strike – or, more specifically,

seek a protective order “[s]ealing any portion of the

Daniel's report which is struck pursuant to this Court's

order”;

• seek “a protective order designating pages 16-17 of Ann

Sullivan's deposition ‘confidential’ for the reason that it

relates to a Complaint which was summarily dismissed, has

no bearing on any relevant issues in this case, but could be

harmful and prejudicial to the reputation of Ann Sullivan”;

• seek a protective order to “mark the Expert Report of Rhetta

Daniel as confidential, as the opinions stated therein,

on their face, are so obviously lacking in relevance and

reliability and are so prejudicial they can never meet the

requisites of the Federal Rules of Evidence”; and

• seek an order to quash the deposition of Ryan Snow,

which Murillo noticed “for October 21, 2016 without

consulting Defendant or defense counsel for availability,”

where “defense counsel is unable to present Mr. Snow on

this date.”

Id. at 4-9.

Legal Standards

Murillo's Discovery MTC

Federal Rule of Civil Procedure 37(a) governs motions to

compel discovery responses. Rule 37(a)(3)(B) provides that

a party seeking discovery may move for an order compelling

production or answers against another party when the latter

has failed to produce documents requested under Federal

Rule of Civil Procedure 34 or to answer interrogatories under

Federal Rule of Civil Procedure 33. See Fed. R. Civ. P. 37(a)

(3)(B)(iii)-(iv). For purposes of Rule 37(a), “an evasive or

incomplete disclosure, answer, or response must be treated as

a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)

(4).

The party resisting discovery must show specifically

how each discovery request is not relevant or otherwise

objectionable. See McLeod, Alexander, Powel & Apffel, P.C.

v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). In response

to a Rule 34 request, “[f]or each item or category, the response

must either state that inspection and related activities will be

permitted as requested or state with specificity the grounds

for objecting to the request, including the reasons.” Fed. R.

Civ. P. 34(b)(2)(B). “An objection must state whether any

responsive materials are being withheld on the basis of that

objection. An objection to part of a request must specify the

part and permit inspection of the rest.” Fed. R. Civ. P. 34(b)

(2)(C). And, in response to an interrogatory under Rule 33,

“[e]ach interrogatory must, to the extent it is not objected

to, be answered separately and fully in writing under oath”;

“[t]he grounds for objecting to an interrogatory must be stated

with specificity”; and “[a]ny ground not stated in a timely

objection is waived unless the court, for good cause, excuses

the failure.” Fed. R. Civ. P. 33(b)(3)-(4).

*4 Federal Rules of Civil Procedure Rules 26(b), 26(c),

and 34 have been amended, effective December 1, 2015.

Rule 26(b)(1) now 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.” Fed. R. Civ. P. 26(b)(1).

The amendments to Rules 26 and 34 govern in all proceedings

in civil cases thereafter commenced and, insofar as just and

practicable, in all proceedings then pending. The Court finds

that applying the standards of Rules 26 and 34, as amended,

to these motions is both just and practicable.

Further, for the reasons the Court has previously explained,

the Court concludes that the amendments to Rule 26 do not

alter the burdens imposed on the party resisting discovery

discussed above. See Carr v. State Farm Mutual Automobile

Insurance Company, 312 F.R.D. 459, 463-69 (N.D. Tex.

2015). Rather, just as was the case before the December

1, 2015 amendments, under Rules 26(b)(1) and 26(b)(2)(C)

(iii), a court can – and must – limit proposed discovery that

it determines is not 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

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or expense of the proposed discovery outweighs its likely

benefit – and the court must do so even in the absence of a

motion. See Crosby v. La. Health Serv. & Indem. Co., 647 F.3d

258, 264 (5th Cir. 2011). Thus, as amended, Rule 26(b)(2)

(C) provides that, “[o]n motion or on its own, the court must

limit the frequency or extent of discovery otherwise allowed

by these rules or by local rule if it determines that: (i) the

discovery sought is unreasonably cumulative or duplicative,

or can be obtained from some other source that is more

convenient, less burdensome, or less expensive; (ii) the party

seeking discovery has had ample opportunity to obtain the

information by discovery in the action; or (iii) the proposed

discovery is outside the scope permitted by Rule 26(b)(1).”

Fed. R. Civ. P. 26(b)(2)(C).

But a party seeking to resist discovery on these grounds

still bears the burden of making a specific objection

and showing that the discovery fails the proportionality

calculation mandated by Federal Rule of Civil Procedure

26(b) by coming forward with specific information to address

– insofar as that information is available to it – 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.

The party seeking discovery, to prevail on a motion to compel,

may well need to make its own showing of many or all of the

proportionality factors, including the importance of the issues

at stake in the action, the amount in controversy, the parties'

relative access to relevant information, the parties' resources,

and the importance of the discovery in resolving the issues, in

opposition to the resisting party's showing.

*5 And the party seeking discovery is required to comply

with Rule 26(b)(1)'s proportionality limits on discovery

requests; that party is also subject to Federal Rule of Civil

Procedure 26(g)(1)'s requirement to certify “that to the best

of the person's knowledge, information, and belief formed

after a reasonable inquiry:...(B) with respect to a discovery

request..., it is: (i) consistent with these rules and warranted

by existing law or by a nonfrivolous argument for extending,

modifying, or reversing existing law, or for establishing new

law; (ii) not interposed for any improper purpose, such as to

harass, cause unnecessary delay, or needlessly increase the

cost of litigation; and (iii) neither unreasonable nor unduly

burdensome or expensive, considering the needs of the case,

prior discovery in the case, the amount in controversy, and

the importance of the issues at stake in the action”; and faces

Rule 26(g)(3) sanctions “[i]f a certification violates this rule

without substantial justification.” Fed. R. Civ. P. 26(g)(1)(B),

26(g)(3); see generally Heller v. City of Dallas, 303 F.R.D.

466, 475-77, 493-95 (N.D. Tex. 2014).

But the amendments to Rule 26(b) do not alter the basic

allocation of the burden on the party resisting discovery to – in

order to successfully resist a motion to compel – specifically

object and show that the requested discovery does not fall

within Rule 26(b)(1)'s scope of relevance (as now amended)

or that a discovery request would impose an undue burden or

expense or is otherwise objectionable. See McLeod, 894 F.2d

at 1485; Heller, 303 F.R.D. at 483-93.

Federal Rule of Civil Procedure 37(a)(5)(A) provides that, if

a motion to compel is granted, or if the requested discovery

is provided after the motion was filed, “the court must, after

giving an opportunity to be heard, require the party...whose

conduct necessitated the motion, the party or attorney

advising that conduct, or both to pay the movant's reasonable

expenses incurred in making the motion, including attorney's

fees,” except that “the court must not order this payment if: (i)

the movant filed the motion before attempting in good faith

to obtain the disclosure or discovery without court action;

(ii) the opposing party's nondisclosure, response, or objection

was substantially justified; or (iii) other circumstances make

an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A).

Federal Rule of Civil Procedure 37(a)(5)(B)-(C) further

provides in pertinent part that, “[i]f the motion is denied,

the court may issue any protective order authorized under

Rule 26(c) and must, after giving an opportunity to be

heard, require the movant, the attorney filing the motion,

or both to pay the party...who opposed the motion its

reasonable expenses incurred in opposing the motion,

including attorney's fees,” “[b]ut the court must not order

this payment if the motion was substantially justified or other

circumstances make an award of expenses unjust,” and that,

“[i]f the motion is granted in part and denied in part, the court

may issue any protective order authorized under Rule 26(c)

and may, after giving an opportunity to be heard, apportion

the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)

(5)(B)-(C).

Murillo's Sullivan MTC

Federal Rule of Civil Procedure 30 governs the conduct or

counsel, parties, and deponents in connection with a party's

deposition as an initial matter, and Rule 30(c)(2) governs

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objections to deposition questions and when a party must

answer. See Fed. R. Civ. P. 30(c)(2). “An objection at the

time of the examination – whether to evidence, to a party's

conduct, to the officer's qualifications, to the manner of taking

the deposition, or to any other aspect of the deposition – must

be noted on the record, but the examination still proceeds;

the testimony is taken subject to any objection.” Id. “An

objection must be stated concisely in a nonargumentative and

nonsuggestive manner.” Id.

And Rule 30(c)(2) provides only three situations in which a

deponent may properly be instructed not to answer a question

– “only when necessary” (1) to preserve a privilege, (2) to

enforce a limitation previously ordered by a court, or (3)

to present a motion under Federal Rule of Civil Procedure

30(d)(3) to terminate or limit the deposition on the ground

that it is being conducted in bad faith or in a manner that

unreasonably annoys, embarrasses, or oppresses the deponent

or party. Id. (“A person may instruct a deponent not to answer

only when necessary to preserve a privilege, to enforce a

limitation ordered by the court, or to present a motion under

Rule 30(d)(3).”). “ ‘Directions to a deponent not to answer

a question can be even more disruptive than objections.’ ”

Rangel v. Gonzalez Mascorro, 274 F.R.D. 585, 591 n.7 (S.D.

Tex. 2011) (quoting Fed. R. Civ. P. 30(d) 1993 Advisory

Committee's Note). “Because the plain language of Rule 30

is rather clear on what types of objections counsel may make

and when counsel may instruct a deponent not to answer a

question, courts have generally concluded that it is improper

to instruct a witness not to answer a question based on a

relevancy objection. However, if counsel's questions go so far

beyond the realm of possible relevance where the deposition

is being conducted in an abusive manner (i.e., in bad faith

or in a manner that unreasonably annoys, embarrasses, or

oppresses the deponent or party), then it would be permissive

to instruct a deponent not to answer and move for a protective

order under Rule 30(d)(3).” Id. at 591 (footnote and citations

omitted).

*6 “The only ground for [a Rule 30(d)(3)] motion to limit

or terminate the deposition is that it is being conducted in bad

faith or in a manner that unreasonably annoys, embarrasses, or

oppresses the deponent or party.” Mayberry v. Wal-Mart La.,

LLC, Civ. A. No. 14-cv-478, 2015 WL 420284, at *3 (W.D.

La. Jan. 29, 2015). And Rule 30(d)(3)(A) expressly limits

the timing for a Rule 30(d)(3) motion: “At any time during

a deposition, the deponent or a party may move to terminate

or limit it on the ground that it is being conducted in bad

faith or in a manner that unreasonably annoys, embarrasses, or

oppresses the deponent or party.” Fed. R. Civ. P. 30(d)(3)(A);

see Mashiri v. Ocwen Loan Servicing, LLC, No. 12cv2838-L

(MDD), 2014 WL 4608718, at *2 (S.D. Cal. Sept. 15, 2014)

(“If counsel for Plaintiff believed that counsel for Defendant

was asking the same question repeatedly in bad faith or to

unreasonably annoy, embarrass or oppress Plaintiff, counsel's

option was to move to terminate or limit the deposition

under Rule 30(d)(3). Plaintiff's current motion to terminate

the deposition is untimely for that purpose as Rule 30(d)

(3) requires the motion be made during the deposition.”);

see also Redwood v. Dobson, 476 F.3d 462, 467-68 (7th

Cir. 2007) (“Webber gave no reason beyond his declaration

that the questions were designed to harass rather than obtain

information – which may well have been their point, but

Fed. R. Civ. P. 30(d) specifies how harassment is to be

handled. Counsel for the witness may halt the deposition

and apply for a protective order, see Rule 30(d)(4), but must

not instruct the witness to remain silent. ‘Any objection

during a deposition must be stated concisely and in a nonargumentative and non-suggestive manner. A person may

instruct a deponent not to answer only when necessary to

preserve a privilege, to enforce a limitation directed by the

court, or to present a motion under Rule 30(d)(4).’ Fed. R. Civ.

P. 30(d)(1). Webber violated this rule repeatedly by telling

Gerstein not to answer yet never presenting a motion for

a protective order. The provocation was clear, but so was

Webber's violation.”). But Murillo does not contend that any

Rule 30(d)(3) motion is untimely, perhaps because Murillo

contends that Sullivan's deposition testimony is incomplete

and seeks itself to continue or reopen the deposition.

Rule 30(d)(3) further provides that “[t]he motion may be filed

in the court where the action is pending or the deposition

is being taken”; that, “[i]f the objecting deponent or party

so demands, the deposition must be suspended for the time

necessary to obtain an order”; that “[t]he court may order

that the deposition be terminated or may limit its scope and

manner as provided in [Federal Rule of Civil Procedure]

26(c)”; that, “[i]f terminated, the deposition may be resumed

only by order of the court where the action is pending”;

and that Federal Rule of Civil Procedure “37(a)(5) applies to

the award of expenses” in connection with a Rule 30(d)(3)

motion. Fed. R. Civ. P. 30(d)(3)(A)-(C).

Once a deponent has appeared for a deposition, Federal Rule

of Civil Procedure 37(a)(3)(B)(i) governs a motion to compel

a deponent to answer a question. See Fed. R. Civ. P. 37(a)

(3)(B)(i) (“A party seeking discovery may move for an order

compelling an answer, designation, production, or inspection.

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This motion may be made if: (i) a deponent fails to answer

a question asked under Rule 30....”). And Rule 37(a)(2)

provides that “[a] motion for an order to a party must be made

in the court where the action is pending.” Fed. R. Civ. P. 37(a)

(2).

For Rule 37(a)(3)(B)'s purposes, “an evasive or

incomplete...answer...must be treated as a failure to...answer.”

Fed. R. Civ. P. 37(a)(4). And Rule 37(a)(5) provides, in

pertinent part, that, on a Rule 37(a)(3)(B)(i) motion to compel

an answer from a deponent, including a non-party:

• “If the motion is granted...the court must, after giving

an opportunity to be heard, require the...deponent whose

conduct necessitated the motion, the... attorney advising

that conduct, or both to pay the movant's reasonable

expenses incurred in making the motion, including

attorney's fees. But the court must not order this payment if:

(i) the movant filed the motion before attempting in good

faith to obtain the disclosure or discovery without court

action; (ii) the opposing party's nondisclosure, response,

or objection was substantially justified; or (iii) other

circumstances make an award of expenses unjust.”

• “If the motion is denied, the court may issue any protective

order authorized under Rule 26(c) and must, after giving an

opportunity to be heard, require the movant, the attorney

filing the motion, or both to pay the party or deponent

who opposed the motion its reasonable expenses incurred

in opposing the motion, including attorney's fees. But

the court must not order this payment if the motion was

substantially justified or other circumstances make an

award of expenses unjust.”

*7 • “If the motion is granted in part and denied in part,

the court may issue any protective order authorized under

Rule 26(c) and may, after giving an opportunity to be heard,

apportion the reasonable expenses for the motion.”

Fed. R. Civ. P. 37(a)(5)(A)-(C).

Federal Rule of Civil Procedure 30(d)(2) provides that “[t]he

court may impose an appropriate sanction – including the

reasonable expenses and attorney's fees incurred by any party

– on a person who impedes, delays, or frustrates the fair

examination of the deponent.” Fed. R. Civ. P. 30(d)(2). “The

meaning of ‘appropriate sanction’ in Rule 30(d)(2) has been

broadly interpreted as [t]he full scope of sanctions available

under Rule 30(d)(2) is not expressly described in the text of

the rule.” Howell v. Avante Servs., LLC, Civ. A. No. 12-293,

2013 WL 824715, at *5 (E.D. La. Mar. 6, 2013) (internal

quotation marks omitted). “Many courts have construed Rule

30(d)(2) to apply to circumstances where a party's conduct at a

deposition warranted remedial action.” S. La. Ethanol, L.L.C.

v. Fireman's Fund Ins. Co., Civ. A. Nos. 11-2715 & 12-0379,

2013 WL 1196604, at *8 (E.D. La. Mar. 22, 2013) (citing

cases). “The broad scope of appropriate sanctions under Rule

30(d)(2) includes, where appropriate, an award of expenses

associated with a deposition's continuation that is necessitated

by a [person's] conduct that impedes, delays, or frustrates the

fair examination of the deponent.” Nieman v. Hale, No. 3:12-

cv-2433-L-BN, 2014 WL 4375669, at *5 (N.D. Tex. Sept. 4,

2014). The movant bears the burden on any Rule 30(d)(2)

motion that it makes. See Kleppinger v. Tex. Dep't of Transp.,

283 F.R.D. 330, 333 (S.D. Tex. 2012).

Defendants' MPO

As amended effective December 1, 2015, Rule 26(c)(1)

authorizes protective orders, for good cause shown, “to

protect a party or person from annoyance, embarrassment,

oppression, or undue burden or expense, including one or

more of the following: (A) forbidding the disclosure or

discovery; (B) specifying terms, including time and place

or allocation of expenses, for the disclosure or discovery;

(C) prescribing a discovery method other than the one

selected by the party seeking discovery; (D) forbidding

inquiry into certain matters, or limiting the scope of disclosure

or discovery to certain matters; (E) designating the persons

who may be present while the discovery is conducted; (F)

requiring that a deposition be sealed and opened only on court

order; (G) requiring that a trade secret or other confidential

research, development, or commercial information not be

revealed or be revealed only in a specified way; and

(H) requiring that the parties simultaneously file specified

documents or information in sealed envelopes, to be opened

as the court directs.” Fed. R. Civ. P. 26(c)(1).

“[T]he burden is upon [the party seeking the protective order]

to show the necessity of its issuance, which contemplates a

particular and specific demonstration of fact as distinguished

from stereotyped and conclusory statements.” In re Terra

Int'l, 134 F.3d 302, 306 (5th Cir. 1998) (citation omitted).

A protective order is warranted in those instances in which

the party seeking it demonstrates good cause and a specific

need for protection. See Landry v. Air Line Pilots Ass'n,

901 F.2d 404, 435 (5th Cir. 1990). And the United States

Court of Appeals for the Fifth Circuit recently explained

that “[t]he federal courts have superimposed a somewhat

demanding balancing of interests approach to the Rule. Under

the balancing standard, the district judge must compare the

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hardship to the party against whom discovery is sought

against the probative value of the information to the other

party. Courts also weigh relevant public interests in this

analysis.” Cazorla v. Koch Foods of Mississippi, L.L.C.,

___ F.3d ____, No. 15-60562, 2016 WL 5400401, at *10

(5th Cir. Sept. 27, 2016) (footnotes and internal quotation

marks omitted); see also id. at *18 (“Rule 26(d) gives that

court wide discretion to craft flexible and nuanced terms of

discovery.” (footnote omitted)).

*8 The Court has broad discretion in determining whether

to grant a motion for a protective order. See Harris v. Amoco

Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985). “The trial court

is in the best position to weigh fairly the competing needs and

interests of parties affected by discovery.” Seattle Times Co.

v. Rhinehart, 467 U.S. 20, 36 (1984).

Federal Rule of Civil Procedure 26(c)(3) provides that, in

connection with a motion under Rule 26(c) for a protective

order, Federal Rule of Civil Procedure “37(a)(5) applies to the

award of expenses.” Fed. R. Civ. P. 26(c)(3).

Analysis

I. Discovery regarding Sullivan's compensation and departure

and CWM's finances

With regard to Murillo's Interrogatory Nos. 14, 15, and 16 to

CWM and Murillo's Second Request for Production Nos. 1,

2, 3, 4, 5, 6, 9, and 10, the Court has carefully considered

the parties' arguments regarding whether discovery is proper

under Rules 26(b) and 26(c) as to Sullivan's compensation

with and departure from CWM and CWM's finances for

certain years.

Murillo argues that discovery on these topics may show that

Defendants acted in their self-interest when recommending

that it settle the case. For instance, if CWM was experiencing

financial difficulty, CWM may have had a motive to

encourage Murillo to settle and collect any outstanding fees

that Murillo owed. Similarly, if Sullivan's compensation or

employment status depended on the fees that she collected for

her cases, she may have had a motive to encourage CMW to

settle and collect any outstanding fees.

But Murillo's relevance theories assume that CWM and

Sullivan were especially eager to collect any outstanding fees

owed. But Defendants note that Murillo continued to owe

Defendants money for their services well after Murillo agreed

to settle the case and that this did not impact the parties

working relationship. Defendants continued to represent

Murillo in other matters even though Murillo ‘s bill was still

outstanding’.

Defendants' proffered evidence also indicate that Sullivan's

employment status was not connected to the date that CWM

collected its fees for the lawsuit. Sullivan left the firm twoand-a-half years after the settlement was concluded. CWM

has already responded to an interrogatory request on the

matter by explaining that it has no personal knowledge

about why Sullivan decided to leave the firm; and Sullivan

herself testified that the amount CWM owed is “not an issue

that caused [her] to leave the firm.” Dkt. No. 70, Ex. 1

at 296. Defendants have also responded to an interrogatory

explaining that “there were no documents referencing any

criticism of [Sullivan's] representation of Plaintiff.” Dkt. No.

75 at 4.

Further, Defendants note that Sal Murillo, acting as the

principal person in charge of Murillo, has already “testified

he was willing to enter into the agreement if it was the best

deal they could reach with AMC.” Dkt. 75 at 6.

In the face of Sullivan's and Murillo's deposition testimony,

and Defendants' showing of why this requested information

is not relevant to the claims and defenses in this case, Murillo

has not shown any factual basis to suggest that discovery

into these matters will show that Defendants' representation

of Murillo in connection with the settlement agreement at

issue was influenced or driven by a concern for Murillo's

receivable with CWM or Sullivan's compensation or that

Sullivan's departure from CWM was motivated or caused

by her representation of Murillo. Murillo's speculation that

discovery could be relevant to its claims to corroborate or

impeach Sullivan's deposition testimony is not sufficient.

*9 Accordingly, the Court determines, under Rules 26(b)

(1), 26(b)(3), and 26(c)(1), that the requested discovery into

these matters is not proportional to the needs of the case,

considering the importance of the issues at stake in the

action and the importance of the discovery in resolving the

issues. The Court will deny Murillo's motion to compel, and

grant Defendants their requested protective order, as to these

discovery requests.

II. Discovery regarding Defendants' involvement in other

lawsuits

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As to Murillo's Interrogatory Nos. 16, 17, 18, and 19 to

CWM and Murillo's Second Request for Production No.

15, the Court determines that the information requested as

to Sullivan's alleged role in a related lawsuit is within the

proper scope of discovery under Rule 26(b)(1) and denies

Defendants' request for a protective order.

Information relevant to a party's or likely witness's credibility

may fall within Rule 26(b)(1)'s scope. See Fed. R. Civ.

P. 26, 2015 comm. note (“The amendment deletes the

former provision authorizing the court, for good cause, to

order discovery of any matter relevant to the subject matter

involved in the action. The Committee has been informed

that this language is rarely invoked. Proportional discovery

relevant to any party's claim or defense suffices, given a

proper understanding of what is relevant to a claim or

defense. The distinction between matter relevant to a claim

or defense and matter relevant to the subject matter was

introduced in 2000. The 2000 Note offered three examples

of information that, suitably focused, would be relevant to

the parties' claims or defenses. The examples were ‘other

incidents of the same type, or involving the same product’;

‘information about organizational arrangements or filing

systems’; and ‘information that could be used to impeach

a likely witness.’ Such discovery is not foreclosed by the

amendments.”); see also S.E.C. v. Cuban, No. 3:08-cv-2050-

D, 2012 WL 456532, at *1 (N.D. Tex. Feb. 10, 2012) (“Cuban

has at least shown that the nonprivileged portions of the

SEC's investigative file for the investigation of Mamma.com,

and documents pertaining to the relationship between the

Mamma.com investigation and the investigation of Cuban,

are relevant to the credibility of Mamma.com witnesses,

including CEO Guy Faure (‘Faure’), and are therefore within

the scope of Rule 26(b)(1). Cuban has established that he is

doing more than engaging in a fishing expedition in seeking

this discovery.”). “Although the rules pertaining to initial and

pretrial disclosures allows a party to withhold impeachment

evidence, see Fed. R. Civ. P. 26(a)(1) and (3), the rules

regarding the discovery of evidence, see Fed. R. Civ. P.

26(b), do not preclude impeachment materials from being

subject to a discovery request.” Baxter v. Anderson, No. CV

16-142-JWD-RLB, 2016 WL 4443178, at *5 (M.D. La. Aug.

19, 2016) (emphasis removed; citing Wright, Miller, Kane,

Marcus, & Steinman, Federal Practice and Procedure § 2015

(3d ed. 1998) (‘[T]he intention of the party from whom

discovery is sought to use materials for possible impeachment

does not narrow discovery of items that are relevant.’

The initial disclosure requirements exclude items that the

disclosing party may use ‘solely for impeachment,’ but no

such categorical limitation applies to material sought through

discovery.”)). Impeachment evidence is thus discoverable

when relevant – in other words, when “disclosure may reveal

information affecting the credence afforded to a witness' trial

testimony.” Davidson Pipe Co. v. Laventhol & Horwath, 120

F.R.D. 455, 462 (S.D.N.Y. 2010).

*10 The impeachment evidence Plaintiff seeks is plainly

discoverable here. Plaintiff seeks discovery relating to a

sanctions order that was entered in a related case where

Sullivan allegedly allowed Sal Murillo to sign a false

affidavit. Any such allowance speaks to Sullivan's credibility

as a witness since it “demonstrate[s] a propensity for

deception...in a context where there is a premium on veracity.”

See id. at 462-63 (noting that “sworn statements to a court

or government agency, employment applications, and even

applications for credit carry an obligation for truthfulness, so

that falsehoods in such situations may be probative of a lack

of credibility”).

In their response, Defendants do not dispute that discovery on

these topics could lead to evidence that challenges Sullivan's

credibility. Defendants instead insist that Plaintiff should not

be entitled to discovery on the prior lawsuit since it concerns

Sullivan's actions as an attorney in a different matter that

pertains only to parties indirectly related to this action. The

prior lawsuit specifically concerns Sullivan's representation

of Lonestrella – an entity set up by the principals of Murillo to

obtain credit and own property for the benefit of Murillo. But

“permit[ting] discovery only of matters otherwise relevant

to the case...improperly limits the scope of discovery given

the frequent admissibility for purposes of impeachment of

matters not otherwise admissible.” 8 Wright & Miller, Federal

Practice and Procedure: Civil § 2015 2 (3d ed. 2016).

While evidence discovered pursuant to these requests may

prove to be inadmissible to the extent it improperly suggests

guilt based on Sullivan's past actions, see Thompson v. Bank

of America, N.A., 13 F. Supp. 3d 636, 656 (N.D. Tex. 2014),

“[i]nformation within [its] scope of discovery need not be

admissible in evidence to be discoverable,” Fed. R. Civ. P.

26(b)(1).

The Court thus determines that Murillo is entitled to

discovery on requests concerning Sullivan's representation

of Lonestrella, subject to any attorney-client privilege or

attorney-work product protections that may apply and are

properly asserted as required by Federal Rule of Civil

Procedure 26(b)(5), and ORDERS Defendants to fully

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respond to Murillo's Interrogatory Nos. 16, 17, 18, and 19 to

CWM and Murillo's Second Request for Production No. 15

by November 3, 2016.

III. Ann Sullivan's deposition

Murillo's complaints about Sullivan's deposition answers do

not merit relief under Rules 37(a)(3)(B)(i) and 37(a)(4) or

Rule 30(d)(2). The Court has reviewed the testimony on

which Murillo relies and determines that Sullivan did not give

incomplete or evasive answers that amount to a failure to

answer deposition questions and did not impede, delay, or

frustrate Murillo's counsel's fair examination of Sullivan.

More specifically, as to Murillo's complaint numbers 1, 2, 5,

and 11, Sullivan testified as to what she recalled. Nothing in

Sullivan's answers at issue suggests or evidences a “feigned

inability to remember.” Redwood, 476 F.3d at 469; see also

Peterson v. Burris, No. 14-CV-13000, 2016 WL 1458107, at

*2 (E.D. Mich. Apr. 14, 2016) (“As noted by the magistrate

judge, there is nothing extraordinary about the fact that Burris

could not remember events that took place over three years

ago, and the circumstantial evidence did not suggest Burris

was being evasive within the meaning of Rule 37(a)(4).”).

As to Murillo's complaint numbers 3, 7, 8, 9, 10, and 12,

the Court determines that, for purposes of Rules 37(a)(3)(B)

(i) and 37(a)(4), Sullivan gave a complete and non-evasive

answer to the questions asked. Insofar as Murillo complains

that Sullivan's counsel took a break and inappropriately

conferred with his client about a pending question, Murillo's

counsel did not object when Sullivan said, “Why don't you

give me a minute to confer with my counsel.” Dkt. No. 70-1

at 21 of 305.

*11 And, as to Murillo's complaint number 6, the Court

determines that Sullivan should not be required to answer

further questions as to why her attorney might have asked Sal

Murillo a particular question as his deposition, particularly

where any further answers may require her to testify

to confidential attorney-client communications or attorney

work-product.

As to Murillo's complaint number 4, for the reasons explained

above, the Court will not require Sullivan to answer the

question regarding her compensation with CWM because it

is beyond the scope of proper discovery under Rule 26(b)(1)

in this case and will grant Defendants' request for a protective

order as to this line of questioning.

IV. Proposed confidentiality order

Because the Court is denying Murillo's Discovery MTC and

Sullivan MTC and is correspondingly granting Defendants'

MPO as to the matters at issue in these three motions,

the Court denies as moot Defendants' request for a

protective order to permit Defendants to provide Plaintiff with

Defendants' financial personal and business information with

protection from unnecessary and inappropriate dissemination.

V. Requests to seal or mark depositions or expert reports as

confidential

The Court has not yet ruled on Defendants' motion to strike

portions of the report of Murillo's expert Rhetta Daniel. And

Defendants' request to seal and mark as confidential portions

of that report relies entirely on conclusory statements. The

Court therefore denies without prejudice Defendants' motion

for protective order as to this report.

Defendants likewise have not sufficiently shown that

pages 16-17 of Sullivan's deposition could be harmful

and prejudicial to her reputation, particularly given the

limited information to which she testified there. The Court

denies Defendants' motion seeking to mark these pages as

confidential.

VI. Deposition of Ryan Snow

At oral argument, the parties' counsel reported that they have

agreed to reschedule Mr. Snow's deposition from October 21,

2016 and would confer to work out a mutually agreeable date.

VII. Award of expenses

Under Rules 26(c)(3) and 37(a)(5), the Court determines

that, under all of the circumstances presented here, Murillo

and Defendants should bear their own expenses, including

attorneys' fees, in connection with each of these motions.

Conclusion

For the reasons and to the extent explained above, the

Court DENIES Murillo's Motion to Compel Ann Sullivan

to Respond to Deposition Questions [Dkt. No. 69] and

GRANTS in part and DENIES in part Murillo's Motion

to Compel Defendants to Comply with Their Discovery

Obligations [Dkt. No. 64] and Defendants' Motion for

Protective Order [Dkt. No. 77].

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SO ORDERED.

DATED: October 20, 2016.

All Citations

Not Reported in Fed. Supp., 2016 WL 6139096

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Government Works.

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2016 WL 3388707

Only the Westlaw citation is currently available.

United States District Court,

N.D. Texas, Fort Worth Division.

Kasonia L. CARTER

v.

BURLINGTON NORTHERN SANTA,

LLC, f/k/a Burlington Northern Santa

Fe Corporation a/k/a Burlington

Northern Santa Fe Railway a/k/a BNSF.

CIVIL ACTION NO. 4:15-CV-366-O

|

Signed 02/08/2016

Attorneys and Law Firms

Hiram McBeth, III, Hiram McBeth Attorney at Law, Dallas,

TX, for Kasonia L. Carter.

Russell D. Cawyer, Paige Pritchard Biggs, Kelly Hart &

Hallman LLP, Fort Worth, TX, for Burlington Northern Santa,

LLC.

ORDER GRANTING DEFENDANT'S MOTION FOR

SANCTIONS FOR SPOLIATION OF EVIDENCE

JEFFREY L. CURETON, UNITED STATES MAGISTRATE

JUDGE

*1 Pending before the Court is Defendant's Motion for

Sanctions for Spoliation of Evidence [doc. 43],1 filed

December 18, 2015. The Court held a hearing on the motion

on January 14, 2016. Having carefully considered the motion,

response, reply, the evidence presented at the hearing, and the

summaries filed by the parties after the hearing, the Court

concludes that Defendant's motion should be GRANTED.

1 The Court notes that Defendant's motion was titled

“Motion for Show Cause Hearing, Contempt and

Sanctions for Spoliation of Evidence.” Because the Court

has already granted the motion for show cause hearing,

the Court will now reference Defendant's motion as a

Motion for Sanctions for Spoliation of Evidence.

In its motion and summary filed after the hearing, Defendant

requests that the Court sanction Plaintiff and her attorney,

Hiram McBeth (“McBeth”), pursuant to Federal Rules of

Civil Procedure 11, 30 and 37 and 28 U.S.C. § 1927

for their “egregious misconduct, including: (1) refusing to

answer relevant, non-privileged questions during Plaintiff's

deposition; (2) refusing to provide the legal basis for counsel's

instruction not to answer deposition questions; (3) failure

to comply with the Court's [December 16, 2015] order

to produce evidence; (4) spoliation of evidence after a

preservation instruction; (5) perjury in affidavit, deposition,

and courtroom testimony to conceal or distract from the

spoliation of evidence; and (6) the filing of a retaliatory

motion for sanctions based on false allegations.” (Defendant's

Summary of Arguments [doc. 60] (“Def.'s Summ.”) at 1.)

A court may sanction parties and their attorneys under the

court's inherent powers. Chambers v. NASCO, Inc., 501 U.S.

32, 43-46 (1991). “Because of their very potency, inherent

powers must be exercised with restraint and discretion.”

Chambers, 501 U.S. at 44. “In order to impose sanctions

against an attorney under its inherent power, a court must

make a specific finding that the attorney acted in ‘bad faith.’

” Chaves v. M/V Medina Star, 47 F.3d 153, 156 (5th Cir.

1995) (quoting Resolution Trust Corp. v. Bright, 6 F.3d 336,

340 (5th Cir. 1993)); see Toon v. Wackenhut Corrs. Corp.,

250 F.3d 950, 952 (5th Cir. 2001). “Courts have the authority

to make credibility determinations to resolve whether such

misconduct has occurred.” Howard v. State Farm Lloyds,

No. H-04-0352, 2005 WL 2600442, at *9 (S.D. Tex. Oct.

13, 2005). A primary purpose in imposing sanctions is to

deter “frivolous litigation and abusive tactics.” Howard, 2005

WL 2600442, at *9. The sanction imposed must be the least

severe sanction adequate to achieve the purpose for which it is

imposed. Id. Courts may use their inherent power to sanction

parties for lying under oath or destroying or altering relevant

evidence. Howard, 2005 WL 2600442, at *9.

Ordinarily, a court should rely on sanctioning power granted

by rule or statute, rather than imposing sanctions under its

inherent powers. Id. at 50; Allstate Ins. Co. v. Mader, 201

Fed.Appx. 261, 265 (5th Cir. 2006). There are several rules in

the Federal Rules of Civil Procedure (“FRCP”) that authorize

the issuance of sanctions and are applicable in this case. As

relevant here, FRCP 30(d)(2) states that “[t]he court may

impose an appropriate sanction—including the reasonable

expenses and attorney's fees incurred by any party—on a

person who impedes, delays, or frustrates the fair examination

of the deponent.” Fed. R. Civ. P. 30(d)(2).

2

 In addition,

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FRCP 37 “empowers the district court to compel compliance

with Federal discovery procedures through a broad choice of

remedies and penalties.” Griffin v. Aluminum Co. of Am., 564

F.2d 1171, 1172 (5th Cir. 1977). Specifically, FRCP 37(b)

(2)(A) allows a range of sanctions when a party fails to

obey a court order to provide or permit discovery, including

“directing that the matters embraced in the order or other

designated facts be taken as established for purposes of

the action, as the prevailing party claims.” FRCP 37(2)(A)

(i). In addition, the court pursuant to FRCP 37(b)(2)(C),

must “order the disobedient party, the attorney advising that

party, or both to pay the reasonable expenses, including

attorney's fees, caused by the failure, unless the failure was

substantially justified or other circumstances made an award

of expenses unjust.” FRCP 37(b)(2)(C). Moreover, sanctions

are permitted under FRCP 11 against an attorney, law firm, or

party under certain circumstances when an attorney presents

a court with a signed written pleading, motion or other paper

and it, inter alia, is found to have been presented for an

improper purpose, such as to harass, cause unnecessary delay,

or needlessly increase the cost of litigation or its factual

contentions lack evidentiary support. Fed. R. Civ. P. 11(b); see

Fed. R. Civ. P. 11(c).

2

“The meaning of ‘appropriate sanction’ in Rule 30(d)(2)

has been broadly interpreted as the full scope of sanctions

available under Rule 30(d)(2) is not expressly described

in the text of the rule.” Howell v. Avante Servs., LLC, No.

12-293, 2013 WL 824715, at *5 (E.D. La. Mar. 6, 2013)

(internal quotation marks omitted).

*2 The dispute in this case began due to the conduct of

Plaintiff and her attorney, McBeth, at Plaintiff's deposition,

which was taken on December 16, 2015 at the offices of

Defendant's attorney. Based upon the evidence presented by

the parties in their written submissions to the Court as well

as at the January 14, 2016 hearing, the Court finds that the

following facts have been established.3

3 After hearing the testimony of the witnesses called at

the January 14, 2016 hearing, the Court finds that the

testimony of Carolyn Ritchie, Gaylord Sturgess, and

Russell Cawyer was credible as to the events of the

deposition in question and the testimony of Plaintiff and

McBeth was not credible.

When Defendant's counsel, Russell Cawyer (“Cawyer”) and

corporate representative, Carolyn Ritchie (“Ritchie”), entered

the conference room to start the deposition, Plaintiff was

sitting on one side of a large conference room table next to

McBeth. The court reporter, Gaylord Sturgess (“Sturgess”),

was present and sitting at the end of the table, next to and

facing Plaintiff. Plaintiff was reviewing the contents of an

open, manila folder that contained a stack of pages. The top

page of the stack of pages, at least, was a piece of white, lined

paper that contained handwritten notes written across the page

in paragraph, narrative form.

Immediately prior to beginning the deposition, Cawyer asked

to review the pages that Plaintiff was looking at in the manila

folder. Plaintiff and McBeth refused the request, claiming

the pages were “personal” and Plaintiff closed the folder

and put it away in a black, canvas bag. At the beginning

of the deposition after Plaintiff had been placed under oath,

Cawyer asked Plaintiff about the contents of the manila

folder. (Deposition Transcript of Plaintiff Kasonia Carter

(“Pl.'s Dep.”) at 5-13.) Plaintiff stated that the notes were

her “personal business” and were “[g]rocery lists, things like

that.” (Pl.'s Dep. at 7; see Pl.'s Dep. at 8-9.) Plaintiff further

stated that there were no references to Defendant or her

employment with Defendant in any of the notes. (Pl.'s Dep.

at 7.) McBeth further represented on the deposition record

that the contents of the file had “nothing to do with BNSF in

this case,” claimed they were Plaintiff's personal business, and

instructed Plaintiff not to answer any further questions about

the notes or the contents of the manila folder. (Pl.'s Dep. at

9-10.) McBeth also refused to show Cawyer the manila folder

and its contents. (Pl.'s Dep. at 10.) Cawyer then informed

McBeth that they were going to take up the matter with

District Judge Reed O'Connor and asked McBeth and Plaintiff

to “preserve that manila folder and all of its contents exactly

as it exists right now.” (Pl.'s Dep. at 10.)

Upon breaks during the deposition, Plaintiff carried the black

canvas bag containing the manila folder and notes out of

the conference on at least two occasions. After a lunch

break, Defendant presented to Plaintiff and McBeth a copy

of an order signed by Judge O'Connor [doc. 41] that ordered

Plaintiff to immediately turn over the manila folder and its

contents to the court reporter and instructed the court reporter

to submit such items to the Court for in camera inspection.

When the folder was presented to the Court, the outside

of the folder contained the following handwritten notation:

“K Carver vs. BNSF, EEOC 2-13-15, filed 5-12-15, Atty

McBeth.” Inside the folder was the following: (1) a single,

BNSF form titled “Performance Management Process Form”

with a handwritten list of six grocery items on the back in blue

ink4 and (2) a copy of the Original Complaint filed in this

action. Apparently, Plaintiff's counsel added the copy of the

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complaint to the manila file after it had been given to Sturgess.

(Pl.'s Dep. at 130-32.) Sturgess then turned the manila folder

over to the Court as per the Court's order.

4 The following words were written on the back in blue

ink in list form: eggs, bacon, paper towels, “Deordarant,”

milk, bread.

*3 After the deposition, Defendant filed the abovereferenced Motion for Sanctions for Spoliation of Evidence.

In response, Plaintiff filed a joint response as well as her own

Motion for Sanctions [doc. 46]. In her motion for sanctions,

Plaintiff alleged that Cawyer engaged in misconduct by

speaking to Plaintiff in a loud, belligerent and threatening tone

at the deposition, demanding that Plaintiff open her purse to

him, and acting in an appalling, disrespectful, unprofessional,

and discourteous manner toward Plaintiff and McBeth. (Pl.'s

Response and Motion for Sanctions (“Pl.'s Mot.”) at 4). In the

motion, which was signed by McBeth, Plaintiff also claimed,

“As the deposition and breaks proceeded Plaintiff said she felt

sexually harassed especially when Mr. Cawyer continued to

reference her purse and demanded that she empty the contents

of her purse on the table for Mr. Cawyer to inspect.” (Pl.'s

Mot. at 5.) Attached to the Plaintiff's motion for sanctions

was an affidavit dated December 23, 2015 and signed by

Plaintiff in which Plaintiff, inter alia, stated, “On December

16, 2015, during the deposition and breaks I felt sexually

harassed especially when Mr. Cawyer continued to reference

my purse and demanded that I empty the contents of my purse

on the table for him to inspect.” (Affidavit of Carter (“Aff.

of Carter”) at 2.) Plaintiff also stated that she complied with

the Court's December 16, 2015 order and “turned over all

the documents [she] had in [her] possession contained in the

manila folder to the Court Reporter.” (Aff. of Carter at 2.)

In an order dated January 4, 2016 [doc. 48], the Court

set a hearing on both parties' motions for sanctions for

Thursday, January 14, 2016. At the hearing, when pressed

about her claims against Cawyer for sexual harassment,

Carter conceded that Cawyer wasn't making sexual advances

or improper remarks consistent with claims of sexual

harassment but instead was engaging in gender harassment,

in her opinion, because he asked her to empty the contents of

her purse. (Transcript of January 14, 2016 Hearing (“Hearing

Trans.”) at 88). Carter clarified that she was not sexually

harassed but that she thought sexual harassment was the

same thing as gender harassment. (Hearing Trans. at 117-19.)

In addition, Carter admitted that, while she claimed at the

deposition that there was nothing in the manila folder that

related to BNSF, there actually were references to BNSF and

she had been incorrect at the deposition. (Hearing Trans. at

102-06.)

Furthermore, at the hearing, McBeth testified that he stood

by his motion for sanctions accusing Cawyer of sexually

harassing Plaintiff. (Hearing Trans. at 123.) He admitted that

he did sign the motion and that it was his client that was

making the accusation. (Hearing Trans. at 126.) When asked

about Plaintiff's recanting of the sexual harassment allegation

during the hearing, McBeth stated, “On cross examination,

[Plaintiff] recanted or used the term for what she believed that

she was going through. I have no obligation but to believe

what she says, and if she recants it here and now, then my

attitude is revised.” (Hearing Trans. at 128.)

Based upon the evidence presented at the hearing and with

the parties' motions for sanctions and related filings, the Court

finds that Plaintiff and McBeth engaged in multiple instances

of sanctionable conduct. As to sanctions pursuant to FRCP

30(d)(2), the Court finds that Plaintiff engaged in conduct that

impeded, delayed, and frustrated the taking of her deposition

when she made untruthful statements regarding the manila

folder and its contents. Specifically, Plaintiff stated that

nothing in the folder related to BNSF, which she admitted at

the hearing was an incorrect statement. In addition, McBeth

engaged in conduct that impeded, delayed, and frustrated the

taking of Plaintiff's deposition when he improperly objected

to the line of questioning relating to the manila folder and its

contents and improperly directed Plaintiff not to answer the

questions relating to such folder. See FRCP 30(c)(2) (stating

that a “person may instruct a deponent not to answer only

when necessary to preserve a privilege, to enforce a limitation

ordered by the court, or to present a motion under Rule 30(d)

(3).”)

In addition, Plaintiff and McBeth violated FRCP 37(b)(2)(A)

by failing to obey the Court's December 16, 2015 order to

turn over the manila folder with all the papers that were in

such folder prior to the start of Plaintiff's deposition. The

Court finds that Plaintiff and McBeth's testimony regarding

such contents is not credible and that they failed to turn over

everything that was in the manila folder prior to Plaintiff's

deposition. The Court finds that the testimony of Sturgess,

an uninterested witness, Ritchie, and Cawyer that the manila

folder contained a stack of pages and, at the very least, the

top page of the stack of pages was a piece of white, lined

paper that contained handwritten notes written across the page

in paragraph, narrative form was credible. No such piece of

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white, lined paper with handwritten notes was produced by

Plaintiff and McBeth in the manila folder.

*4 As sanctions for the above-described conduct under

FRCP 30 (d)(2) and 37(b)(2)(A) & (C), Plaintiff and McBeth

will be ordered to pay Defendant's reasonable attorney's fees

associated with having to file its Motion for Sanctions for

Spoliation of Evidence [doc. 43] and all related costs and fees,

including the costs associated with the deposition. The Court

finds that this sanction is reasonable in light of Plaintiff's and

McBeth's inexcusable conduct in the deposition and failure

to fully comply with an order of this Court. While Plaintiff

and McBeth, during the hearing, attempted to make excuses

for their behavior during the deposition, their excuses were

neither reasonable nor credible and were, at times, offensive

to the Court's attempts to decipher the truth.

As to the issue of sanctions for spoliation of evidence, the

Court finds that sanctions for such behavior is not adequately

provided for in the Federal Rules of Civil Procedure. Thus, the

Court will use its inherent powers to impose such a sanction.

See Ashton v. Knight Tramp., Inc., 772 F. Supp. 2d 772, 799

(N.D. Tex. 2001) (“A federal court has the inherent power

to sanction a party who has abused the judicial process”

and “[t]he spoliation of evidence is one such abuse.”); see

Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 449 (4th Cir.

2004). “Spoliation is the destruction or material alteration of

evidence or ... the failure to preserve property for another's use

as evidence in pending or reasonably foreseeable litigation.”

Ashton, 772 F. Supp. 2d at 799 (internal quotations omitted).

“The party seeking the spoliation sanction bears the burden

of proof.” Ashton, 772 F. Supp. 2d at 800. In the Fifth

Circuit, the elements of spoliation are: (1) a duty to preserve

the information; (2) a culpable breach of that duty; and (3)

resulting prejudice to the innocent party. See Ashton, 772

F. Supp. 2d at 800; see also Rimkus Consulting Grp. v.

Cammarata, 688 F. Supp. 2d 598, 615-16 (S.D. Tex. 2010).

“Courts have broad discretion in crafting a remedy that is

proportionate to both the culpable conduct of the spoliating

party and resulting prejudice to the innocent party,” including

awarding attorneys' fees, deeming certain facts admitted,

giving the jury an adverse inference instruction, striking

pleadings, entering a default judgment, and dismissing the

case entirely. Ashton, 772 F. Supp. 2d at 801 (citing

Anadarko Petroleum Corp. v. Davis, No. H-06-2849, 2006

WL 3837518, at *27 (S.D. Tex. Dec. 28, 2006)). “In choosing

the appropriate remedy, a court must ensure that it is no

harsher than necessary to respond to the need to punish or

deter and to address the impact on discovery.” Ashton, 772 F.

Supp. 2d at 801 (internal quotations omitted). The appropriate

sanction should “(1) deter parties from engaging in spoliation;

(2) place the risk of an erroneous judgment on the party who

wrongfully created the risk; and (3) restore the prejudiced

party to the same position he would have been in absent the

wrongful destruction of evidence by the opposing party.”5Id.

(internal quotations omitted).

5

“In order to satisfy the prejudice requirement, the party

seeking sanctions must demonstrate that the missing or

altered evidence would have been relevant to her case.”

Ashton, 772 F. Supp. 2d at 801 (citing Rimkus, 688 F.

Supp. 2d at 616). “Lost or destroyed evidence is relevant

if a reasonable trier of fact could conclude that the lost

evidence would have supported the claims or defenses of

the party that sought it.” Ashton, 772 F. Supp. 2d at 801.

(internal quotations omitted). “Generally, the prejudice

element is satisfied where a party's ability to present

its case or to defend is compromised.” Id. (internal

quotations omitted).

The Fifth Circuit permits an adverse inference against a

spoliating party upon a showing of bad faith or bad conduct.

Condrey v. SanTrust Bank of Ga., 431 F.3d 191, 203 (5th

Cir. 2005). “The Fifth Circuit has instructed that an adverse

inference jury instruction for spoliation is appropriate where

a showing is made that the malfeasant party intentionally

destroyed important evidence in bad faith and did so because

the contents of those documents were unfavorable to that

party.” Ashton, 772 F. Supp. 2d at 801 (internal quotations

omitted). If a court finds that both evidence of destruction

and bad faith have been demonstrated, it may then infer that

the evidence would be unfavorable to the destroying party if

it were introduced in court. Eaton Corp. v. Appliance Valves

Corp., 790 F.2d 874, 878 (Fed. Cir. 1986).

*5 Based upon the standard set forth above regarding

spoliation of evidence, the Court finds that Plaintiff and

McBeth: (1) had a duty to preserve the information in the

manila folder after being requested to do so by Cawyer at the

deposition, (2) breached such duty by removing documents

from the manila folder after being asked to preserve such

folder in its original condition, and (3) their actions prejudiced

Defendant. The Court further finds that Plaintiff and McBeth

acted in bad faith as they could not provide any credible

explanation for their behavior in refusing to turn over the

contents of the manila folder when first requested and their

proffered reason for refusing to do so was admitted to be

untrue. While it is impossible for the Court to know what is on

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the missing documents, based on the above, it is reasonable to

infer that such documents were relevant to the lawsuit, the loss

of which is prejudicial to Defendant. As a result, in addition

to the attorney's fees mentioned above, the Court finds that

the appropriate sanction for such spoliation pursuant to its

inherent sanctioning powers will be that the jury will be given

an adverse inference instruction concerning Plaintiff's and

McBeth's conduct at the deposition regarding the papers in

the manila folder. The jury will further be instructed that it

can infer such missing documents, if they were introduced in

court, would be unfavorable to Plaintiff and her position in

this case.

Based on the evidence presented and after considering

several lesser and greater alternatives, including the awarding

of no sanctions, a private reprimand, a public reprimand,

nonmonetary sanctions such as ethics training, striking

pleadings, entering a default judgment, and outright dismissal

of Plaintiff's case, the Court finds that the above sanctions

appropriately deters Plaintiff and McBeth from engaging in

additional misconduct and spoliation, places the risk of an

erroneous judgment on Plaintiff, and restores the Defendant to

the same position it would have been in absent the misconduct

and spoliation.

As to McBeth's filing of a retaliatory motion for sanctions

based on false allegations of sexual harassment against

Cawyer, the Court finds that, pursuant to FRCP 11 (c)(3),

Plaintiff and McBeth shall be ordered, in an separate order, to

show cause why their behavior has not violated FRCP 11(b)

and why they should not be sanctioned pursuant to FRCP

11(c).

Based on the foregoing, it is ORDERED that Defendant's

Motion for Sanctions for Spoliation of Evidence [doc. 43] is

GRANTED.

It is further ORDERED that Defendant shall submit to the

Court, no later than February 22, 2016, evidence of its

reasonable attorney's fees and costs, including the costs

associated with the taking of Plaintiff's deposition and the

filing of its Motion for Sanctions for Spoliation of Evidence.

Plaintiff's response, if any, to Defendant's submission is due

no later than February 29, 2016.

It is further ORDERED that Defendant is entitled to a

spoliation instruction to the jury that sets forth Plaintiff's and

McBeth's conduct at Plaintiff's deposition and states that the

jury can infer from such conduct that the missing documents

in the manila folder are unfavorable to Plaintiff and her

position in this case.

SIGNED February 8, 2016.

All Citations

Not Reported in Fed. Supp., 2016 WL 3388707

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2014 WL 4375669

Only the Westlaw citation is currently available.

United States District Court,

N.D. Texas,

Dallas Division.

Jason Lee NIEMAN, Plaintiff,

v.

Keith HALE, et al., Defendants.

No. 3:12–cv–2433–L–BN.

|

Signed Sept. 4, 2014.

Attorneys and Law Firms

Jason Lee Nieman, Springfield, IL, pro se.

Keith Hale, Grapevine, TX, pro se.

MEMORANDUM OPINION AND ORDER DENYING

SUPPLEMENTAL MOTION FOR DISCOVERY

SANCTIONS AND ORDER TO SHOW CAUSE

DAVID L. HORAN, United States Magistrate Judge.

*1 Plaintiff Jason Lee Nieman has filed a Supplemental

Motion for Discovery Sanctions in Regard to the Failed

Deposition of Defendant Keith Hale, 3/24/2014. See Dkt. No.

139. Defendants Keith Hale and Insurance Search Group have

filed a response, see Dkt. No. 141, and Plaintiff has filed a

reply, see Dkt. No. 142. For the reasons explained below,

Plaintiff's Supplemental Motion for Discovery Sanctions in

Regard to the Failed Deposition of Defendant Keith Hale,

3/24/2014 [Dkt. No. 139] is DENIED, but Defendant Keith

Hale is ordered to show cause why he should not be

sanctioned under Federal Rule of Civil Procedure 30(d)(2).

Background

The background and procedural history of this case are well

known to the parties and to the undersigned and need not be

discussed in detail in this order.

On March 24, 2014, Nieman took a partial deposition of

Hale. Hale has contended that many of the questions posed

“were objectionable on the grounds of privacy, attorney-client

privilege and form. Many were argumentative and harassing.”

Dkt. 111 at 1. Hale objected to questions based on allegedly

incomplete email strings, to questions requesting speculative

answers and opinions on legal matters, to questions that

were compound, and to objections asserted by Nieman that

Hale's deposition answers were non-responsive. See id. at

2. In an April 2, 2014 Motion for Protective Order and

for Suspension of Deposition [Dkt. No. 111], Hale provided

a list of 111 proposed question that constitute “examples

of objectionable questions” in the deposition for which he

asserted an objection, see Dkt. No. 111–1, and requested that

the Court issue a protective order under Federal Rule of Civil

Procedure 30(d)(3)(A) requiring Nieman to comply with the

Federal Rules of Civil Procedure, see Dkt. No. 111.

The Court denied that motion in an August 6, 2014

Memorandum Opinion and Order. See Dkt. No. 134. The

Court ruled as follows:

Under Federal Rule of Civil Procedure 26(c), the Court

may, for good cause, issue an order to protect a party

or person from annoyance, embarrassment, oppression, or

undue burden or expense. See Fed. R. Civ. P. 26(c)(1).

“[T]he burden is upon [the party seeking the protective

order] to show the necessity of its issuance, which

contemplates a particular and specific demonstration of

fact as distinguished from stereotyped and conclusory

statements.” In re Terra Int'l, 134 F.3d 302, 306 (5th

Cir.1998) (citation omitted). A party resisting 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.

See Merrill v. Waffle House, Inc., 227 F.R.D. 475, 477

(N.D.Tex.2005).

....

The Court determines that Hale has failed to establish

through a “particular and specific demonstration of fact”

that the proposed deposition questions, and those posed

by Nieman at the March 24, 2014 deposition, necessitate

an order protecting Hale from “annoyance, embarrassment,

oppression, or undue burden or expense” under Rule 26(c).

Nieman is permitted under the Federal Rules to seek,

through discovery, relevant information that is “reasonably

calculated to lead to the discovery of admissible evidence.”

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

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*2 Hale simply lists, without explanation, 111 proposed

questions that he believes to be objectionable based on a

privacy interest, attorney-client privilege, on speculation

or because the question calls for a legal conclusion,

is argumentative, mischaracterizes the evidence, is

“harassing,” subjects him to “oppression,” or is repetitive.

See Dkt. No. 111–1. These objections were the basis for

Hale's refusal to answer a number of questions during the

March 24 deposition and his refusal to continue with the

deposition after approximately 70 minutes had passed. See

Dkt. No. 122–4 at 7 through 122–5 at 31.

But the fact that Hale believes many of Nieman's questions

to be objectionable does not permit him to refuse to answer

them, walk out of the deposition, or obtain the broad and

non-specific protective order he seeks. Instead, Federal

Rule of Civil Procedure 30(c)(2) provides:

An objection at the time of the examination—whether

to evidence, to a party's conduct, to the officer's

qualifications, to the manner of taking the deposition,

or to any other aspect of the deposition—must be

noted on the record, but the examination still proceeds;

the testimony is taken subject to any objection. An

objection must be stated concisely in a nonargumentative

and nonsuggestive manner. A person may instruct a

deponent not to answer only when necessary to preserve

a privilege, to enforce a limitation ordered by the court,

or to present a motion under Rule 30(d)(3).

Fed. R. Civ. P. 30(c)(2) (emphasis added). To be clear,

Rule 30 provides only three situations in which a deponent

may refuse to respond to a deposition question. Namely,

a deponent may refrain from answering (1) to preserve a

privilege, (2) to enforce a limitation previously ordered

by the Court, or (3) to present a motion under Federal

Rule of Civil Procedure 30(d)(3) to terminate or limit the

deposition on the ground that it is being conducted in bad

faith or in a manner that unreasonably annoys, embarrasses,

or oppresses the deponent or party.

The only objection that Hale asserted that arguably permits

his refusal to answer the deposition questions posed is that

certain information sought by Nieman may be covered by

the attorney-client privilege. See Dkt. No. 111–1 at 2. Hale

has not cited any questions actually posed during the March

24, 2014 deposition that are covered by the attorney-client

privilege, and it is not the Court's obligation to search the

record and assert privilege on Hale's behalf.

At his deposition, Hale may assert privilege regarding

—and is not required to answer—questions that request

information covered by the attorney-client privilege.

The attorney-client privilege prevents disclosure of

communications between an attorney and client that were

made while seeking or rendering legal services. See

Upjohn Co. v. United States, 449 U.S. 383, 389, 101

S.Ct. 677, 66 L.Ed.2d 584 (1981). “[T]he attorney-client

privilege attaches only to communications made for the

purpose of giving or obtaining legal advice or services,

not business or technical advice or management decisions.”

Stoffels v. SBC Communications, Inc., 263 F.R.D. 406,

411 (W.D.Tex.2009) (citing Navigant Consulting, Inc.

v. Wilkinson, 220 F.R.D. 467, 474 (N.D.Tex.2004)).

Only communications made “for the purpose of securing

primarily either (i) an opinion on law or (ii) legal services

or (iii) assistance in some legal proceeding” are privileged.

United States v. Harrelson, 754 F.2d 1153, 1167 (5th

Cir.1985) (internal citations omitted).

*3 The burden is on the party asserting the privilege to

demonstrate how the information satisfies all the elements

of the privilege. See Hodges, Grant & Kaufmann v. United

States, 768 F.2d 719, 721 (5th Cir.1985). Additionally,

the party asserting the attorney-client privilege must prove

that waiver by breach of confidentiality did not occur.

See id. It is well settled that disclosure of attorney-client

communications to a third party lacking a common legal

interest will result in a waiver of the privilege. See In re

Auclair, 961 F.2d 65, 69 (5th Cir.1992).

On the record before the Court, Hale has not established

that he is entitled to a protective order to protect him from

“annoyance, embarrassment, oppression, or undue burden

or expense.” Fed. R. Civ. P. 26(c). The Court's review

of the deposition transcript suggests that Hale himself

unnecessarily asserted objections to numerous questions,

refused to answer questions due to objections that did not

assert privilege, and failed to comply with his discovery

obligations. Hale is not eligible for a protective order

simply based on his belief that Nieman is a vexatious

litigant with a frivolous case. Good cause does not exist to

prohibit the gathering of relevant discovery through Hale's

deposition in this matter.

The Court finds that Hale has failed to show good cause

and a specific need for protection or that justice requires

his protection from any annoyance, embarrassment,

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oppression, or undue burden or expense represented by the

deposition.

Id. at 2–6.

Plaintiff now seeks sanctions based primarily on Hale's

conduct at the March 24, 2014 deposition. See Dkt. No. 139.

Plaintiff invokes the Court's authority to impose sanctions

under Federal Rules of Civil Procedure 30(d)(3), 37(a), and

37(b). See id. Plaintiff asserts that Hall should be sanctioned

because “Hale willfully failed to comply with discovery

duties, and this Court's orders by way of (1) unilaterally and

prematurely ending the deposition of Keith Hale on March

24, 2014 and (2) by refusing to participate in the deposition of

March 24, 2014, such refusal being unreasonable, unjustified,

and/or in objective bad faith.” Id. at 1. Plaintiff requests

“that the Court assess appropriate and measured discovery

sanctions against [Hale] for willful violation of federal and

local rules as to discovery, as well as willful violation of this

Court's express discovery orders, including violating the letter

and/or spirit of Order [Dkt. 97, 3/11/2014] .” Id.

As legal authority, Plaintiff argues that the Court can

and should sanction Hale under Rule 37(a) based on the

Court's denial of Hale's Motion for Protective Order and

for Suspension of Deposition [Dkt. No. 111] filed under

Rule 30(d)(3)(A). Plaintiff also urges the Court to exercise

its “broad authority to sanction improper conduct under

Fed.R.Civ.P. 37, and also under the doctrine of inherent

authority.” Id. at 5. According to Plaintiff, “the Court is within

its discretion to bar [Defendants] from attempting to argue

its various shifting and non-credible ‘reasons' for failing to

submit Nieman to Paul Neir/Southwest Selective Search and/

or Republic Group, leaving the case to effectively go to trial

on the issue of damages alone, or even supporting entry of

judgment in favor of Plaintiff Nieman.” Id. at 5–6. Plaintiff

also invokes Federal Rule of Civil Procedure 37(d), which,

Plaintiff explains, “allows the district court to, among other

sanctions, dismiss an action if a party ‘fails to appear’ for his

or her deposition.” Id. at 8. Plaintiff candidly concedes that

he “does not believe that the Court will find that Defendant

Hale's continued and willful non-compliance as to discovery

justifies, as of yet, summary or default disposition in Plaintiff

Nieman's favor,” but Plaintiff reports that he “does believe

that this Court will recognize that Defendant Hale's discovery

misconduct shows no signs of abating, and that until or unless

this Court elects to properly sanction Hale, or to find him

in contempt of court, that Defendant Hale simply will only

comply at bare minimum with the rules, and/or this Court's

orders, if at all.” Id. at 8–9.

*4 Defendants responded primarily to resist any sanctions in

the form of a default judgment or to take the case to jury trial

on the so-called “discovery misconduct” alone, see Dkt. No.

141 at 5, and also to assert that “granting of a sanctions award

against the Defendants would give more energy to Nieman's

bad faith efforts to exact revenge on the Defendants for having

been dismissed from the RLI Case and pursuing sanctions

against Plaintiff Nieman,” id. at 4.

In reply, Plaintiff asserts that Defendants' response offered

“no good reason for [Hale's] bad faith deposition conduct

or the conduct that followed as to his purported protective

order motion” and that “the Court should award the measured

and reasonable discovery sanctions against Defendant Hale

that Plaintiff Nieman is seeking, and should order that such

amounts should be paid, in full, prior to Defendant Hale

sitting for his re-deposition on September 15, 2014.” Dkt. No.

142 at 1. Plaintiff asserts that “Hale has offered no argument

whatsoever against the imposition of sanction other than

sanction of summary judgment in favor of Plaintiff Nieman,

and/or denial of summary judgment potential to Defendant

Hale, as a sanction” and “has not opposed this reasonable

and measured financial sanction,” where “Plaintiff primarily

asked only that Defendant Hale be required to pay part of

the costs of Nieman's travel to Dallas for Hale's re-deposition

($937.50, as supported) and that Hale be required to have

remitted such funds to Plaintiff in full no later than September

8, 2014” and suggested that “[d]efault judgment would only

be entered if Hale was ordered to pay and refused to do so.”

Id. at 7.

“Plaintiff respectfully requests that the Court issue the

Order (motion exhibit 1, [Dkt. 139–1] ) in his favor,

assessing measured and appropriate discovery sanctions

against Defendants Hale/ISG for their willful disobedience

of this Court's prior discovery orders, and for the unjustified

conduct as to (1) improperly obstructing the deposition

of Keith Hale on March 24, 2014, (2) walking out of

said deposition prior to conclusion and without Court

permission and (3) in failing to make any type of legitimate

factual or legal argument in the following protective order

motion, which was flatly denied” and “also believes that

since Defendant Hale has provided no legitimate excuse or

justification for his confirmed discovery misconduct, that

this Court should strongly consider ordering that Hale may

not seek Defendant's summary judgment in this case, as

additional sanction, because of Hale's clear lack of remorse

for his misconduct, and in light of the Court's decision not to

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recommend (sua sponte) summary judgment in this case.” Id.

at 10.

Legal Standards and Analysis

The shortcoming in Plaintiff's motion is that it invokes legal

authority for sanctions that does not apply on the record

before the Court. Hale did not violate the Court's March 11,

2014 Order [Dkt. No. 97] denying a protective order and

ordering that “the deposition of Hale noticed by Plaintiff's

Amended Notice of Deposition of Hale shall go forward.”

Dkt. No. 97 at 17–18. Hale appeared for the deposition,

which did go forward on March 24, 2014, but Hale later

terminated the deposition and, eight days later, filed a motion

for protective order and suspension of the deposition under

Rule 30(d)(3). Invoking the “spirit” of the March 11, 2014

Order [Dkt. No. 97] is too slim a reed to support the sanctions

that Plaintiff seeks.

*5 For the same reason, sanctions are not authorized under

Rule 37(d). That rule provides that “[t]he court where the

action is pending may, on motion, order sanctions if: (i) a

party ... fails, after being served with proper notice, to appear

for that person's deposition.” Fed. R. Civ. P. 37(d)(1)(A)(i).

After the Court denied Hale's motion for a protective order

to avoid the deposition as noticed, Hale appeared for his

deposition on March 24, 2014.

Hale's April 2, 2014 Motion for Protective Order and for

Suspension of Deposition [Dkt. No. 111] asked the Court

to, under Rule 30(d)(3)(A), “(1) enter a protective order

forbidding Nieman to make inquiry into certain matters,

thereby limiting the scope of Nieman's deposition questions

of Hale, if the Court determines that a future deposition

of Hale is required, and (2) dispense a warning to Nieman

ordering him to abide by Federal civil procedure with regard

to conducting depositions.” Dkt. No. 111 at 3. The Court

denied that motion in its entirety and ordered the continuation

of Hale's deposition on September 15, 2014. See Dkt. Nos.

134 & 138.

Rule 30(d) (3)(C) provides that “Rule 37(a)(5) applies to

the award of expenses” on a Rule 30(d)(3)(A) motion. Fed.

R. Civ. P. 30(d)(3)(C). Rule 37(a)(5)(B), in turn, provides

that, if a motion is denied, the Court “must, after giving an

opportunity to be heard, require the movant ... to pay the

party ... who opposed the motion its reasonable expenses

incurred in opposing the motion, including attorney's fees”

but “must not order this payment if the motion was

substantially justified or other circumstances make an award

of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B).

But Plaintiff does not seek his expenses incurred in opposing

Hale's April 2, 2014 Motion for Protective Order and for

Suspension of Deposition [Dkt. No. 111]. Plaintiff has not

even tried to prove up those expenses, whatever they may be.

Given what Plaintiff has asked for, the Court is not inclined to

find that the circumstances justly warrant awarding Plaintiff

additional, unasked-for relief

Finally, Plaintiff invokes the Court's inherent powers or

authority to impose sanctions. But the Court must “exercise

caution” in invoking its inherent powers and should

“ordinarily” rely on a rule or statute rather than its inherent

power. Chambers v. NASCO, Inc., 501 U.S. 32, 50, 111 S.Ct.

2123, 115 L.Ed.2d 27 (1991). That is, “when there is bad-faith

conduct in the course of litigation that could be adequately

sanctioned under the Rules, the court ordinarily should rely

on the Rules rather than the inherent power,” although, “if in

the informed discretion of the court, neither the statute nor

the Rules are up to the task, the court may safely rely on its

inherent power.” Id.

Here, there is a rule that contemplates sanctions for the

kind of deposition conduct for which Plaintiff alleges Hale

should be sanctioned and authorizes sanctions of the sort

that Plaintiff seeks, that is, that Hale be required to pay

part of the costs of Plaintiff's travel to Dallas for Hale's redeposition. Rule 30(d) (2) provides that “[t]he court may

impose an appropriate sanction—including the reasonable

expenses and attorney's fees incurred by any party—on a

person who impedes, delays, or frustrates the fair examination

of the deponent.” Fed. R. Civ. P. 30(d)(2). “The meaning

of ‘appropriate sanction’ in Rule 30(d) (2) has been broadly

interpreted as [t]he full scope of sanctions available under

Rule 30(d)(2) is not expressly described in the text of the

rule.” Howell v. Avante Servs., LLC, Civ. A. No. 12–293, 2013

WL 824715, at *5 (E.D.La. Mar.6, 2013) (internal quotation

marks omitted). “Many courts have construed Rule 30(d)

(2) to apply to circumstances where a party's conduct at a

deposition warranted remedial action.” S. La. Ethanol, L.L.C.

v. Fireman's Fund Ins. Co., Civ. A. Nos. 11–2715 & 12–

0379, 2013 WL 1196604, at *8 (E.D.La. Mar.22, 2013) (citing

cases). The broad scope of appropriate sanctions under Rule

30(d)(2) includes, where appropriate, an award of expenses

associated with a deposition's continuation that is necessitated

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by a party's conduct that impedes, delays, or frustrates the fair

examination of the deponent.

*6 The Court concludes that invoking its inherent powers is

inappropriate under these circumstances in light of Rule 30(d)

(2)'s provisions. And Plaintiff has not actually invoked Rule

30(d)(2). While Rule 30(d)(2)'s text imposes no limitation on

the Court's authority to sanction deposition conduct, including

by a sua sponte order, see Security Nat'l Bank of Sioux

City, Iowa v. Abbott Labs., 299 F.R.D. 595, 599 (N.D.Iowa

2014), Plaintiff's did not put motion for sanctions did not

put Defendants on notice of the rule's possible application to

Hale's conduct at his March 24, 2014 deposition.

For all these reasons, the Court does not find it appropriate

to award sanctions on Plaintiff's Supplemental Motion for

Discovery Sanctions in Regard to the Failed Deposition of

Defendant Keith Hale, 3/24/2014 [Dkt. No. 139].

Further, Plaintiff also requests that the Court modify the

current scheduling order to enlarge time for discovery by a

period of approximately 45 to 60 days, if the Court wishes

to order Defendant Hale to appear for re-deposition. See Dkt.

No. 139. But, as the Court already ruled while ordering the

continuation of Hale's deposition, see Dkt. No. 138 at 1–2, the

discovery deadline passed months ago and will not be further

extended at this time other than to permit the depositions of

Neiman and Hale scheduled for September 15, 2014.

Conclusion and Order to Show Cause

Plaintiff's Supplemental Motion for Discovery Sanctions in

Regard to the Failed Deposition of Defendant Keith Hale,

3/24/2014 [Dkt. No. 139] is DENIED as explained above.

But the Court sua sponte ORDERS Defendant Keith Hale

to file a written response to this Order to Show Cause

by September 12, 2014, explaining why he should not

be sanctioned pursuant to Federal Rule of Civil Procedure

30(d)(2)—including by an order that Hale pay part of the

costs of Plaintiff's travel to Dallas for Hale's re-deposition

on September 15, 2014—for conduct at Hale's March 24,

2014 deposition that impeded, delayed, or frustrated the fair

examination of Hale by Plaintiff and necessitated this Court's

order providing that the continuation of Hale's deposition take

place in the Court's courtroom or conference room, on the

15th Floor of the Earle Cabell Federal Building in Dallas,

Texas, on September 15, 2014.

The Court does not believe that additional briefing is needed

from Plaintiff on this matter in light of his submissions

in support of his motion for sanctions. Accordingly, no

additional briefing will be permitted on the matter of possible

Rule 30(d)(2) sanctions unless ordered by the Court.

Further, the Court advises the parties that they must

comply with the Court's August 15, 2014 Order Scheduling

Deposition [Dkt. No. 138] whether or not the Court has

issued an order as to possible Rule 30(d)(2) sanctions before

September 15, 2014.

SO ORDERED.

All Citations

Not Reported in F.Supp.3d, 2014 WL 4375669

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2012 WL 7997962

Only the Westlaw citation is currently available.

United States District Court,

E.D. Texas,

Tyler Division.

VIRNETX INC., Plaintiff,

v.

CISCO SYSTEMS, INC. et al., Defendants.

No. 6:10–CV–417.

|

Aug. 8, 2012.

Attorneys and Law Firms

Douglas A. Cawley, Christopher Lee Limpus, Mitchell Reed

Sibley, Rosemary Tyson Snider, Ryan Abbott Hargrave,

Stacie Lynn Greskowiak, McKool Smith, Dallas, TX,

Andrew Thompson Gorham, Charles Ainsworth, Robert

Christopher Bunt, Robert M. Parker, Parker Bunt &

Ainsworth, P.C., Tyler, TX, Bradley Wayne Caldwell, Daniel

R. Pearson, Jason Dodd Cassady, John Austin Curry,

Caldwell Cassady Curry, Dallas, TX, Ramzi Ragheb Khazen,

Seth Raymond Hasenour, Trent Edward Campione, McKool

Smith, Austin, TX, Samuel Franklin Baxter, McKool Smith,

Marshall, TX, for Plaintiff.

Allen Franklin Gardner, John Frederick Bufe, Michael E.

Jones, Potter Minton, a Professional Corporation, Tyler, TX,

Ameet A. Modi, John M. Desmarais, John C. Spaccarotella,

Karim Z. Oussayef, Michael P. Stadnick, Paul A. Bondor,

Tamir Packin, Xiao Li, Desmarais LLP, New York, NY,

Andrew G. Hamill, Bradford J. Black, Peter H. Chang, Black

Chang & Hamill LLP, San Francisco, CA, Eric Hugh Findlay,

Roger Brian Craft, Walter Wayne Lackey, Jr., Eric Hugh

Findlay, Findlay Craft, Tyler, TX, John C. O'Quinn, William

H. Burgess, Kirkland & Ellis LLP, Washington, DC, Danny

Lloyd Williams, Christopher Needham Cravey, Kyung Kim,

Leisa Talbert Peschel, Matthew Richard Rodgers, Ruben

Singh Bains, Terry D. Morgan, Williams Morgan & Amerson

PC, Houston, TX, Eric M. Albritton, Stephen Edwards,

Albritton Law Firm, Longview, TX, Marcia H. Sundeen,

Kenyon & Kenyon, Washington, DC, Megan Whyman

Olesek, Kenyon & Kenyon, Palo Alto, CA, for Defendants.

ORDER

LEONARD DAVIS, District Judge.

*1 Before the Court are Apple's Motion for Protective

Order for Halting the Deposition of Mr. Christophe Allié

Pursuant to Rule 30(d) and Rule 26 (Docket No. 250, “PO

Motion”) and VirnetX's Motion for Sanctions (Docket No.

272, “Sanctions Motion”). The Court held a hearing on July

12, 2012, and after hearing extensive argument regarding both

motions, DENIED Apple's motion for a protective order and

GRANTED VirnetX's motion for sanctions. The Court now

memorializes its orders.

BACKGROUND

On April 6, 2012, VirnetX took the deposition of Mr.

Christophe Allié, noticed pursuant to Federal Rule of Civil

Procedure 30(b) (1), in Palo Alto, California. PO Motion at

2. Mr. Allié is an engineering manager at Apple who was

sitting for his first deposition. Id. Mr. Allié testified that he

worked on Apple's VPN on Demand and claimed to have

come up with the idea of “determining whether to establish a

VPN based on a domain name for Apple's VPN on Demand”

for the iPhone. Sanctions Motion, EX. C at 27:10–29:5. Mr.

Allié confirmed that he is a listed inventor on Apple's U.S.

Patent Application No. 10/940,225 (“the ′225 application”).

Sanctions Motion, EX. B. Mr. Allié also agreed that, via

the ′225 application, he tried to patent the idea of using a

domain name to determine whether to establish a VPN. Id.

at 30:11–15. Mr. Allié further testified that he had consulted

with Apple's experts in this case and helped Apple's attorneys

respond to interrogatories regarding his work on Apple's VPN

on Demand.

VirnetX is asserting U.S. Patent No. 6,502,135 (“the ′135

patent”) against Apple, which VirnetX alleges claims systems

and methods that create a VPN based on a DNS request.

Sanctions Motion at 1. In sum, VirnetX is alleging that

Apple attempted to patent identical ideas in its ′225 patent

application, hence the importance of Mr. Allié's testimony, as

a listed co-inventor and person with extensive knowledge of

the technology behind the application.

During his deposition, Mr. Allié testified that he had no

knowledge of VirnetX's ′135 patent and had never seen

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it before. PO Motion, EX. 1 at 36:12–37:6; 52:11–53:14.

VirnetX's counsel presented the ′135 patent to Mr. Allié,

then asked him to turn to claim 1 of the ′135 patent and

had him review each limitation of the claim. Id. at 37:11–

38:13. VirnetX's counsel next asked Mr. Allié whether he

still thought Apple was first to come up with the idea of

determining whether to establish a VPN based on a domain

name request. Id. At this point, Apple's counsel lodged a

speaking objection and stated that Mr. Allié should be given

an opportunity to read and analyze the document before

answering. Id . at 38:14–23. Ultimately, Mr. Allié stated that

he could not state whether there is overlap between the ′225

application and the ′135 patent. Id. at 39:7–22; 52:11–53:14.

VirnetX's counsel then asked Mr. Allié whether he would be

willing to go through the ′135 patent and testify regarding the

differences between it and the ′225 application. Id. at 55:22–

56:8. Mr. Allié stated that he may need some explanation

regarding the content of the ′135 patent. Id. VirnetX's counsel

then asked Mr. Allié again to turn to claim 1 of the ′135 patent

and stated that he would read the claim and Mr. Allié could

state if there was anything he did not understand. Id. at 56:10–

20. At that point, Apple's counsel stated that he objected to

the line of questioning and that Mr. Allié should have an

opportunity to review the patent in detail. Id. at 56:21–25.

*2 VirnetX's counsel then walked Mr. Allié through every

limitation of claim 1 and asked him whether he understood; to

which, Mr. Allié responded that despite being slightly vague,

he understood. Id. at 57:6–58:24. Once Mr. Allié confirmed

that he understood claim 1, VirnetX's counsel then asked

him how claim 1 of the ′135 patent was different from what

Apple tried to patent in the ′225 application. Id. at 59:1–

4. At this point, Apple's counsel objected and stated that if

“we're going to continue this line of questioning,” he was

going to shut the deposition down and move for a protective

order. Id. at 59:5–61:6. Apple's counsel stated that he was

going to shut the deposition down because Mr. Allié should be

allowed to review the entirety of the ′135 patent specification

and prosecution history prior to answering any questions

regarding the patent. Id.

At that point, the parties were at an impasse, and VirnetX's

counsel suggested calling the Court's discovery hotline to

resolve the issue. Id. 61:7–21. Given that the deposition

was taking place during a Court holiday, the hotline was

unavailable. During the approximately 15–minute recess, Mr.

Allié made no attempt to review the ′135 patent, and at

no point did Mr. Allié affirmatively state that he did not

understand claim 1 of the ′135 patent. VirnetX's counsel

persisted in attempting to get Mr. Allié to answer the question

after the recess, and Apple's counsel ultimately shut down the

deposition. Id. at 62:1–66:9.

APPLE'S MOTION FOR PROTECTIVE ORDER

Apple contends that VirnetX's counsel conducted the

deposition of Mr. Allié in an “oppressive manner,” and

requests a protective order pursuant to Federal Rule of Civil

Procedure 30(d)(3). PO Motion at 4.

Applicable Law

Federal Rule of Civil Procedure 30(c)(2) states that “[a]

person may instruct a deponent not to answer only when

necessary to preserve a privilege, to enforce a limitation

ordered by the court, or to present a motion under Rule 30(d)

(3).” Fed. R. Civ. P. 30(c)(2). In turn, Federal Rule of Civil

Procedure 30(d)(3)(A) states that “[a]t any time during a

deposition, the deponent or a party may move to terminate

or limit it on the ground that it is being conducted in bad

faith or in a manner that unreasonably annoys, embarrasses,

or oppresses the deponent or party.” Fed. R. Civ. P. 30(d)(3)

(A).

Analysis

As an initial matter, the Court has reviewed the transcript

excerpts submitted by the parties and viewed the entirety of

the video of Mr. Allié's deposition. At no point did VirnetX's

counsel conduct the deposition in a manner that could be

characterized as intended to annoy, embarrass, or oppress

Mr. Allié. VirnetX's counsel did not badger Mr. Allié, raise

his voice, or use inappropriate language. On the contrary,

VirnetX's counsel conducted the deposition in a professional

and respectful manner.

The crux of Apple's complaint is that VirnetX's counsel

denied Mr. Allié an opportunity to review the entirety of the

′135 patent and prosecution history at his deposition prior

to asking him any related questions. PO Motion at 4–6.

VirnetX's counsel, however, never refused a request from Mr.

Allié to read the ′135 specification. In fact, Mr. Allié never

requested to read the specification or prosecution history.

*3 As detailed above, VirnetX's counsel took Mr. Allié

through claim 1 of the ′135 patent, and Mr. Allié affirmatively

confirmed that he understood each limitation. PO Motion,

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EX 1 at 55:22–56:8. At no point after VirnetX's counsel

read the text of claim 1 did Mr. Allié state that he did not

understand the claim. Apple's counsel, however, repeatedly

lodged speaking objections during the deposition, stating

that Mr. Allié was not in a position to understand the ′135

patent until he had reviewed the entirety of the specification

and prosecution history. Yet when asked, Mr. Allié himself

confirmed that he understood the limitations of claim 1 of

the ′135 patent as recited by VirnetX's counsel and never

requested to review the specification nor the prosecution

history. Id.

Even after Apple's counsel's not so subtle speaking

objections, Mr. Allié never asked for clarification or

explanation of the meaning of any of the claim language.

Thus, he was presumably willing and able to answer VirnetX's

counsel's questions. Nevertheless, Apple's counsel did not

allow him to answer the questions. Mr. Allié is a person of

skill in the art of the ′135 patent and the intended audience

of such a document; therefore, it is not surprising that he

was in a position to understand the meaning of the claims.

Indeed, Mr. Allié is an engineering manager at Apple, and

despite the ′135 patent covering a sophisticated technology,

he is intelligent enough to know when he does not understand

a question or material presented to him. See Quantachrome

Corp. v. Micromeritics Instrument Corp., 189 F.R.D. 694,

700 (S.D.Fla.1999) (“The witnesses in this case are scientists

and engineers who work with and create complex technology.

Surely they are intelligent enough to know when they do not

understand a question.”).

Rule 30 was amended in 1993 and places strict limits on

when an attorney may instruct a deponent not to answer a

question. See Bristol–Myers Squibb Co. v. Rhône–Poulenc

Rorer, Inc., 1998 WL 2829, at *3, n. 4 (S.D.N.Y. Jan.6,

1998). “The underlying purpose of a deposition is to find out

what a witness saw, heard, or did—what the witness thinks

... [t]here is no proper need for the witness's own lawyer to

act as intermediary, interpreting questions, deciding which

questions the witness should answer, and helping the witness

to formulate answers.” Hall v. Clifton Precision, 150 F.R.D.

525, 528 (E.D.Pa.1993) (emphasis added). Due to Apple's

counsel's termination of the deposition, VirnetX has been

deprived of that opportunity.

Apple's counsel had no justification under Rule 30 to

terminate the deposition. The deposition was not conducted in

a manner that annoyed, embarrassed, or oppressed Mr. Allié.

Apple's counsel should have simply lodged his objections,

allowed Mr. Allié to answer the questions, and then either: (1)

taken an opportunity to redirect Mr. Allié on the ′135 patent;

or (2) contested the admissibility of the testimony by way

of any relevant objections at the pretrial hearing or during

trial. Instead, Apple's counsel chose to end the deposition

in violation of Rule 30(d)(3)(A). Merely disagreeing with a

particular line of questioning is not justification to shut down

the deposition. As such, Apple's motion for protective order

is DENIED.

VIRNETX'S MOTION FOR SANCTIONS

*4 Rule 30(d)(2) provides that “[t]he court may impose

an appropriate sanction—including the reasonable expenses

and attorneys' fees incurred by any party—on a person who

impedes, delays, or frustrates the fair examination of the

deponent.” Fed. R. Civ. P. 30(d)(2).

As explained above, Apple's counsel inappropriately

shut down Mr. Allié's deposition; thus, “imped[ing]

and frustrat[ing] the fair examination of the deponent.”

Id. Determining the “appropriate sanction,” under these

circumstances is not a simple matter. VirnetX requests: (1)

precluding Apple from calling Mr. Allié at trial or any

other witness to testify concerning the ′225 application;

(2) precluding Apple from presenting counter or rebuttal

designations of Mr. Allié's deposition testimony; and (3)

an adverse inference instruction at trial regarding Apple's

improper termination of Mr. Allié's deposition. Sanctions

Motion at 9. Apple contends that VirnetX's proposed

sanctions are unjust, and that there are lesser sanctions—such

as attorneys' fees or compelling another deposition—that are

more appropriate. Docket No. 320 at 5.

While not directly addressing sanctions pursuant to Rule

30(d) (2), the Fifth Circuit recently stated that it is “well

within [a district court's] discretion to use sanctions to deter

future abuse of discovery.” Smith & Fuller, P.A. v. Cooper

Tire & Rubber Co., 685 F.3d 486, 2012 WL 2345024, at *4

(5th Cir. June 21, 2012) (discussing the purpose of sanctions

pursuant to Rule 37). The same deterrent effect must be

reflected in any sanction imposed pursuant to Rule 30(d)(2)

under the circumstances. Any sanction this Court imposes

for Apple's improper termination of Mr. Allié's deposition

must serve the dual purpose of deterring any similar discovery

abuse in this case, as well as deterring similar abuse in future

cases. Additionally, the sanction imposed must attempt to

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address any harm suffered by VirnetX as a result of Apple's

improper termination of the deposition.

As a result of Apple's counsel's improper termination of the

deposition, VirnetX has been deprived of the opportunity of

obtaining Mr. Allié's answers regarding the comparison of

VirnetX's ′135 patent and Apple's ′225 application. Apple's

counsel terminated the deposition at the precise moment Mr.

Allié was going to provide his answers. While Apple may not

have “prepared” Mr. Allié to answer questions regarding the

′135 patent, that did not give it the right to stop the deposition.

In determining an appropriate sanction, an important factor

is Apple's motivation in stopping the deposition. Was it truly

to allow the witness an opportunity to review the patent

and prosecution history, or was it to provide an opportunity

to “woodshed” the witness as to the importance of the

question and possibly how to respond? VirnetX's line of

questions addressed a very important issue in this case,

which the witness was well qualified to answer. Indeed,

the witness never said he could not answer the question; it

was only Apple's lawyer, who did not want him to answer

the question. Furthermore, during the fifteen minutes that

VirnetX's counsel was trying to call the Eastern District

Discovery Hotline, one as skilled in the art as this witness

could have easily reviewed the patent, and if more time was

needed the witness could have asked for more. There is no

indication he did either, again reinforcing the notion that it

was Apple's counsel that needed time, not the witness. All

of these facts raise a strong inference that Apple's motivation

to shut down the deposition was to provide an opportunity

to “woodshed” the witness, rather than to protect the witness

from any unfair conduct or questioning by opposing counsel.

Depositions are designed to cull the unbiased facts in an

attempt to develop a truthful record. See Hall, 150 F.R.D.

at 528 (“The witness comes to the deposition to testify, not

to indulge in a parody of Charlie McCarthy, with lawyers

coaching or bending the witness's words to mold a legally

convenient record.”).

*5 If the Court simply imposes fees and expenses and orders

completion of Mr. Allié's deposition, it would be a nominal

sanction at best, as Apple would have accomplished what

it conceivably wanted—disruption of the deposition and an

opportunity to visit with the witness regarding his testimony.

Such a nominal sanction would not provide any deterrent

effect and would not put VirnetX in the position it was in prior

to the termination of the deposition. In fact, such a nominal

sanction would conceivably encourage tactical violations of

the Rules in this case and future cases. Absent a true and

meaningful sanction, future litigants faced with a witness

about to give potentially unfavorable testimony may choose

to improperly terminate the deposition knowing that the most

likely result is that they will merely be required to offer the

witness for additional testimony at their expense at a later

date.

Additionally, it is important that VirnetX not be prejudiced

by Apple's counsel's conduct. VirnetX needs to be placed

in as close to the position it would have been in, but for

Apple's improper termination of the deposition. At the same

time, to give an adverse inference instruction, as requested

by VirnetX, is to conclude that Apple did in fact terminate

the deposition to give it an opportunity to coach the witness

and that the testimony would have been unfavorable to Apple.

While there is a strong inference that this is indeed the case,

the Court is hesitant to make such a definitive finding against

Apple's counsel. The Court expects better of counsel, and

hopes its expectations were met in this case.

Accordingly, given that Apple's counsel improperly

terminated the deposition of Mr. Allié in violation of Rule

30(d)(3)(A), to address the relative harm VirnetX has suffered

from such improper termination, and to act as a deterrent

to such future conduct in this and other cases, the Court

GRANTS VirnetX's motion for sanctions and imposes the

following sanctions:

(1) Apple must pay VirnetX's reasonable attorneys' fees and

costs associated with responding to Apple's motion for

a protective order and the filing of VirnetX's motion for

sanctions;

(2) Apple must produce Mr. Allié for completion of his

deposition at a time and location selected by VirnetX, all

costs of such deposition to be paid by Apple. Apple shall

not, through counsel or otherwise, further communicate

in any way with Mr. Allié regarding the patents about

which the witness was testifying prior to termination of

his deposition. To the extent Apple has communicated

with Mr. Allié about the patents since his deposition

was terminated, Apple and Mr. Allié are deemed

to have waived any privilege they might otherwise

assert as to these conversations, and the witness will

truthfully answer any and all questions regarding any

such communications between Mr. Allié and Apple or

any of its counsel, employees or representatives. Apple

is precluded from asking any questions of the witness

with regard to the comparison of the two patents.

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*6 (3) However, in lieu of Sanction # 2 above, Apple may

elect the following sanction and no further deposition of

Mr. Allié will be taken:

a. Apple is precluded from calling Mr. Allié at trial, or

providing any rebuttal or counter-designations from Mr.

Allié's deposition testimony regarding the comparison of

′225 application and ′135 patent; and

b. The Court will give the following adverse inference

instruction to the jury at an appropriate time during the

trial:

“During the deposition of Mr. Allié, counsel for VirnetX

asked questions related to comparison of VirnetX's ′135

patent and Apple's ′225 patent application. Counsel for

Apple improperly terminated the deposition and did

not permit Mr. Allié to answer these questions. You

may, although you are not required to, infer that had

Apple's counsel not terminated Mr. Allié's deposition,

the testimony provided would have been unfavorable to

Apple, and that Apple's counsel's reason for terminating the

deposition was to prevent such unfavorable testimony from

being presented to you in this case.”

This choice of sanctions allows Apple to complete the

deposition and avoid the adverse inference instruction, but

prohibits it from potentially profiting from having stopped

the deposition. At the same time, if Apple chooses not to

complete the deposition with any otherwise privileged posttermination communications waived, then such an adverse

inference instruction is justified and appropriate. An adverse

inference instruction is appropriate upon a showing of bad

faith or bad contact, as in this case. Condrey v. SunTrust

Bank of Georgia, 431 F.3d 191, 203 (5th Cir.2005) (citing

King v. Ill. Cent. R.R., 337 F.3d 550, 556 (5th Cir.2003)).

If Apple does not want to disclose any post-termination

communications, then any lesser sanction would not serve

to address the harm caused as a result of Apple's improper

termination of the deposition and would not serve to deter

other similar violations.

Apple shall file a Notice of Election within three business

days of this order.

So ORDERED.

All Citations

Not Reported in F.Supp.2d, 2012 WL 7997962

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Government Works.

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