1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION

ROBERT (BOB) ROSS,

Plaintiff/Counterclaim

Defendant,

v.

ASSOCIATION OF PROFESSIONAL 

FLIGHT ATTENDANTS, et al., 

Defendants/Counterclaim

Plaintiff.

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§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

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

Judge Terry R. Means

BRIEF IN SUPPORT OF AMENDED MOTION TO

COMPEL RESPONSE TO SUBPOENA 

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

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

Fed. R. Civ. P. 45, and Local Rules 5.2, 7.1. 7.2. 53.1, 56.3 and 56.6, Plaintiff, Robert “Bob” Ross 

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

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

support thereof, would respectfully show this Court as follows:

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Table of Contents

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT 

WORTH DIVISION.................................................................................................................................... 1

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

FACTUAL BACKGROUND....................................................................................................................... 5

ARGUMENT ............................................................................................................................................ 11

Accountant-Client and Attorney-Client Privilege Objection:.................................................................. 12

Undue Burden Objection: ...................................................................................................................... 13

Vague, Ambiguous and Overly-broad Objection:................................................................................... 16

Relevancy Objection:............................................................................................................................. 17

Burdensome or Disproportionate Requests in relation to the Needs of the Case Objection:..................... 17

CONCLUSION......................................................................................................................................... 19

CERTIFICATE OF CONFERENCE.......................................................................................................... 20

CERTIFICATE OF SERVICE................................................................................................................... 21

Table of Authorities

Authorities

Am. Fed’n of Musicians of the United States & Canada v. Skodam Films, LLC, 10 

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

Arthur Young & Co., 465 U.S. 805, 104 S.Ct. 1495, 79 L.Ed.2d 826 (1984) 12 

Cantu v. TitleMax, Inc., 5:14-CV-628 (W.D. Tex. Oct. 9, 2015) 12 

Chao v. Loc. 743 Int’l Bhd. of Teamsters, AFL-CIO, 467 F3d 1014 (7th Cir. 2006) 17 

Coughlin v. Lee, 946 F.2d 1152 (5th Cir. 1991) 17 

EEOC v. Aerotek, Inc., 815 F.3d 328 (7th Cir. 2016) 16 

EEOC v. Bay Shipbuilding Corp., 668 F.2d 304 (7th Cir. 1981) 18 

EEOC v. Ford Motor Credit Co. , 26 F.3d 44 (6th Cir. 1994) 17 

FTC v. Shaffner, 626 F.2d 32 (7th Cir. 1980) 18 

Heller v. City of Dallas, 303 F.R.D. 466 (N.D. Tex. 2014) 16

Isenberg v. Chase Bank USA, N.A., 661 F. Supp. 2d 627 (N.D. Tex. 2009) 11 

Leonard v. Martin, 38 F.4th 481 (5th Cir. 2022) 17 

SEC v. Brady, 238 F.R.D. 429 (N.D. Tex. 2006) 14 

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Shields v. Sturm, Ruger & Co., 864 F.2d 379 (5th Cir. 1989) 12 

United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002) 18 

United States v. Fluitt, 22-30316, slip op. at 4 (5th Cir. Aug 04, 2022) 14

Walsh v. Alight Solutions LLC, 44 F.4th 716 (7th Cir. 2022) 17 

Williams v. City of Dallas, 178 F.R.D. 103 (N.D. Tex. 1998) 13 

Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812 (5th Cir. 2004) 14 

Codes & Statutes 

29 U.S.C. § 411(a)(2) 18 

29 U.S.C. § 437 6 

29 U.S.C. § 501 18 

Tex. Occ. Code §901.457 12 

Court Rules

 

Fed. R. Civ. P. 26(b)(1) 1, 13 

Fed. R. Civ. P. 34 16 

Fed. R. Civ. P. 34(c) 1, 13 

Fed. R. Civ. P. 45 1, 11, 13 

Fed. R. Civ. P. 45(c)(2)(A) 11 

Fed. R. Civ. P. 45(d)(2)(B) 13 

Fed. R. Civ. P. 45(d)(2)(B)(i) 13 

L.R. 7.1 1, 20 

L.R. 7.2 1 

L.R. 53.1 1 

L.R. 56.3 1 

L.R. 56.6 1 

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SUMMARY

In his Complaint, Plaintiff alleges his union and its leaders violated his rights as a union 

member, among other claims, under federal law for wrongful discipline for his exercise of free 

speech and association rights. The disciplinary arbitration hearing resulted in an award to the 

union for $62,558.75. 

 Plaintiff asserts that Defendants’ conduct resulted in an unlawful discipline designed to 

obstruct his free speech and association rights within the union. More particularly, the arbitration 

award deprives Plaintiff of the right to ever run for office again, so that Plaintiff may not hold the 

National President’s seat and prevent AFA from potentially merging with APFA—and this was 

the real agenda behind the disciplinary hearing. 

Woods, Stephens, and O’Neil objected to a Subpoena, and continually withholds

documentation. All objections should be overruled, and Woods, Stephens, and O’Neil should be

compelled to comply with the subpoena requests. It has been a year since Woods, Stephens, and 

O’Neil served with the Subpoena, and yet Woods, Stephens, and O’Neil still have not produced all

responsive documents. After conferring with opposing counsel, only about 100 documents were 

produced, many substantially redacted and multiple documents continue to be withheld based on 

meritless objections and claims of privilege that do not apply, with no privilege log provided.

The Court should note that Defendant’s counsel represents Woods, Stephens, and O’Neil. 

Defendants’ Counsel have stonewalled all discovery efforts thus far. Woods, Stephens and O’Neil’s 

“Counsel” Mr. Jeffrey Bartos and James Sanford, also believe attorney-client privilege is an 

appropriate claimed privilege on communications between APFA officers, APFA counsel, and 

Woods, Stephens, and O’Neil, LLP—a third party entity. And yet, no privilege log has been turned 

over for these glaringly inappropriate privilege assertions in which third-parties are clearly included 

on the communications. As a result, Plaintiff implores this court to please review the attached letter 

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from Defendants’ Counsel for the union—APFA—on behalf of Woods, Stephens, and O’Neil—an 

independent third-party accounting firm. Plaintiff seeks an order compelling production of 

documents without redactions from Woods, Stephens and O’Neil. 

FACTUAL BACKGROUND

The lawsuit arises from claims that APFA—Plaintiff’s labor union—unlawfully disciplined 

him for exercising his rights to free speech and association as a member of his labor union in 

violation of federal law, among other claims. APFA claims Plaintiff breached his fiduciary duty in 

making and receiving overpayments under the Ross Transition Agreement. After Disciplinary 

Charges were issued for over $62,558.75, Plaintiff discovered a Confidential Memo from the 

accounting firm that conducted a review of his payments that stated that he was paid correctly under 

the Transition Agreement. (See Appendix pp. 1-2). The Confidential Memo was never produced to 

him during his Arbitration hearing, never shown to the Arbitrator, never shown to the Board of 

Directors that voted against him and nor in the letter from the National Treasurer. The letter from 

the National Treasurer—received by the Plaintiff on or about November 24, 2020—and the 

Confidential Memo—received by the National Treasurer on or about October 22, 2020, concealed 

from the Plaintiff, are contained in the Appendix for reference. (See Appendix pp. 1-2). Clearly 

these two letters illustrate that the APFA misrepresented that Plaintiff was overpaid and wrongfully 

disciplined him based on his opposition to the political faction in power at the time. 

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

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

subpoena that was issued (the “Subpoena”). (See Appendix Pgs. 3-8).

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

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

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

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

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

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

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

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

“Bob” Ross. (See Appendix Pg. 4).

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

Stephens, and O’Neil regarding the former three National Officers of the Association of 

Professional Flight Attendants (“APFA”) Eugenio Vargas, Robert “Bob” Ross, and Nena Martin.

1

 

Considering that the named individuals in the request only served as National Officers during the

period of April 1, 2016 to July 1, 2018—when the Ross Administration was in office—the request 

for documents and communications is limited to those documents from April 1, 2016 to current. 

Documents outside this time frame do not exist. 

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

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

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

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

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

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

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

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

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

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

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

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

Woods, Stephens, and O’Neil. 

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

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

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

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

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

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

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

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

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

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On October 20, 2022, Hal O’Neil was served with the Subpoena for Woods, Stephens, and 

O’Neil, at 6300 Ridglea Pl., Ste 318, Fort Worth, TX 76116. (See Appendix Pgs. 3-8).

On November 3, 2022, Defendant’s Counsel appeared for the first time as Counsel for 

Woods, Stephens, and O’Neil and served objections on their behalf within fourteen (14) days of 

being served. (See Appendix Pgs. 4-5). However, Plaintiff attempted to resolve this matter with 

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

and O’Neil failed to adequately respond to the subpoena

The original objections contain multiple grounds for including (1) undue burden and 

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

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

attorney client privilege and privilege for accountants of APFA. (See Appendix Pgs. 11-13). 

Defendants’ original counsel has since withdrawn from the case before the Court, and Plaintiff’s 

counsel emailed a subsequent request to Woods, Stephens, and O’Neil c/o Hal O’Neil, CPA, owner 

of the accounting firm on August 16, 2023 requesting compliance with the Subpoena. (See 

Appendix Pg. 16). On August 14, 2023, Plaintiff’s counsel also emailed Defendants’ counsel and 

requested he withdraw the objections. (See Appendix Pgs. 26-28). On August 15, 2023, 

Defendants’ counsel refused to withdraw his objections. (See Appendix Pgs. 26-28). The Court 

should note, he never advised whether he did or did not represent Woods, Stephens, and O’Neil as 

their new counsel of record. (See Appendix Pgs. 26-27). 

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

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

Hal O’Neil to the email requesting a telephone conversation—still no confirmation whether he 

represented Hal O’Neil as counsel (See Appendix Pgs. 23-24). Counsel for both parties spoke via

a telephone call on August 23, 2023 wherein Defendants’ counsel sought clarification of the 

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subpoena request and what documents were sought. Plaintiff’s counsel explained that all documents 

and communications between APFA and Woods, Stephens, and O’Neil related to the three 

remaining members of the Ross Administration since 2016 were needed. Defendants’ counsel 

stated that:

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

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

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

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

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

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

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

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

it, and distribution of it.

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

2023. (See Appendix Pgs. 20-21). Plaintiff’s counsel offered to limit the requests for documents

and communications to those relating to the Ross Administration, but to that occurring from 2018

to current. This limitation would eliminate concerns regarding private financial documents and 

isolate the scope of focus to the conduct of the union regarding the three remaining Ross 

Administration officers; however, Defendants’ counsel maintained his objection to the scope as 

being overly broad. (See Appendix Pgs. 18-19).

In compliance with the Court’s order entered on September 8, 2023, Plaintiff’s Counsel 

conferred with Defendant’s counsel on September 12, 2023 via email, on a telephone call on 

September 15, 2023, Plaintiff’s counsel was informed that Defendants’ counsel did not know if he 

represented Woods, Stephens O’Neil (despite declining to withdraw his objections prior to the 

original filing of this motion). (Appendix Pgs. 30-31; 35). So, Plaintiff’s Counsel emailed notice 

directly to Hal O’Neil, Bill Osborne, and Sanford Denison (prior counsel) on September 18, 2023 

and mailed certified mail a copy of the pleading to Hal O’Neil on the same date. (Appendix Pgs. 

40-41). Subsequently, the undersigned counsel emailed to follow up for conference purposes on 

September 12, 2023 and September 20, 2023. (Appendix Pgs. 30-31). On September 25, 2023, 

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Defendants’ counsel confirmed his representation of Woods Stephens and O’Neil, LLP. 

(Appendix Pgs. 42-43). 

Since entry of this Court’s order was entered on September 8, 2023, Woods, Stephens, and 

O’Neil produced approximately 162 pages of heavily redacted documents, while multiple 

documents continue to be withheld. Woods, Stephens, and O’Neil maintain attorney-client 

privilege exists over documents and communications with APFA National Officers and/or APFA 

Attorneys on them—without ever serving a privilege log to Plaintiff. (Appendix Pgs. 51-53).

Woods, Stephens and O’Neil also withheld documents based on financial sensitive information—

reasons are still unknown for this. Furthermore, extensive redacted information within emails and 

communications continued without ever providing a privilege log as required under federal law or

asserting any legal basis whatsoever. (Appendix Pgs. 54-55).

On October 12, 2023, Defendants’ counsel served very limited and heavily redacted 

discovery responses. Plaintiff maintains that no attorney-client privilege can be maintained 

between counsel for Defendants and Woods, Stephens, and O’Neil prior to the filing of this matter 

and therefore asks the court to compel discovery, but particularly any communications in which 

both Defendants and Woods Stephens and O’Neil are simultaneously copied. When documents 

were produced, Defendants’ Counsel served a letter explaining that he decided to withhold 

pertinent documents based on attorney-client privilege (between APFA, Woods, Stephens and 

O’Neil, and APFA Counsel), financial discussion of payouts made to similarly situated officers 

(likely discussions as to why Mr. Ross’s Transition Agreement payouts differed to the other 

officers), and payroll documents for APFA staff (likely staff who received a 1099-K form for 

furniture Mr. Ross was accused of stealing). 

Documents continue to be withheld on baseless grounds. No resolution has been reached 

on the issue of the outstanding Subpoena request to Woods, Stephens, and O’Neil. Additionally, 

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as of the date of filing this amended motion, Defendants and/or Woods, Stephens, and O’Neil 

failed to turn over several pertinent and relevant documents—including a privilege log. Finally, 

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

Woods, Stephens, and O’Neil will turn over documents. As of the filing of this amended motion, 

there are multiple emails that Defendant’s Counsel has yet to respond Further, Woods, Stephens, 

and O’Neil continue to insist on a financial privacy when a union does not enjoy a right to financial 

privacy, and any privacy for individuals’ private financial information has yet to be a concern for 

which Defendant’s Counsel has raised with me to date. No request was made regarding redactions 

and no discussion occurred regarding what redactions should or should not occur. Woods, 

Stephens, and O’Neil redacted portions of communications without any grounds to do so, and no 

privilege log, or details of the communications required by Fed. R. Civ. Proc. 26 (b)(5)(A), let 

alone any grounds for asserting attorney client privilege have been made to date. 

On October 19, 2023, opposing counsel emailed to concede the issue that attorney-client 

privilege did not apply in terms of the Wood, Stephens, O’Neil emails—then attached four 

documents withheld for privilege—yet still redacted. Defendant’s counsel did indicate that he 

would get back to me next week, however seeing as he waited until the day before Plaintiff’s 

Counsel was ordered to amend this motion—Plaintiff’s counsel informed him he was out of time, 

he would have to take his issues up with this court instead. Defendant’s counsel has continued 

using delay tactics and playing games such as this for the last several months, never turning over 

any meaningful discovery, never seeming to appear uncooperative, never answering questions he 

does not want to answer, but always answering only those questions he wants to answer, and 

delaying for as long as possible. This is complete waste of this court’s time, energy and 

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resources—not to mention Plaintiff and Plaintiff’s counsel’s time, energy and resources.3 

 

ARGUMENT

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

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

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

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

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

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

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

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

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

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

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

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

3 The Court should note the previous statements made by Defendants’ Counsel on record (Ross Dkt. No. 83). 

Defendant’s counsel argues it cannot, and will not, settle the claims pending before this Court while its claims 

persist. APFA contends that it must pursue the Ross Administration. Defendants argue settlement of any kind 

would violate federal law breach of fiduciary duty and the governing union’s rules—even if settlement is in the 

union membership’s best interest. Consequently, this Court should consider the Ross Administration’s position. 

Plaintiff has no other option, but to exercise his rights to recover for Defendants’ misconduct—as well as the rest 

of the Ross Administration—for the sake of their families, their reputations, and their careers. The Court should 

also note that APFA continues to pursue Nena Martin and Marcie Dunaway (both former Officers under the Ross 

Administration) by ordering additional financial audits of their expenses. This was announced at the end of 

August, 2023, despite these pending claims before this Court. Nena Martin previously won in Arbitration on these 

exact claims last fall. To date, APFA has not audited any other administration except for the Ross 

Administration. Most recently, the APFA Board of Directors passed a resolution designed to obstruct Heidi 

Morgan’s ability to provide documents in the present case relating to involvement with APFA or as to any of the 

Ross Administration’s Disciplinary Hearings. Martin is now being threatened with disciplinary charges based on 

her association with the Ross Administration. Most notably, December is when new candidates, like Nena Martin 

and Heidi Morgan, will announce their intent to run for National Office in 2024.

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Accountant-Client and Attorney-Client Privilege Objection: 

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

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

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

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

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

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

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

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

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

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

been recognized in federal cases.”). 

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

accountant-client privilege. to the Subpoena served on Woods, Stephens, and O’Neil as overly-broad 

and vague. Plaintiff now seeks relief from this Court to grant his Motion to Compel Response to 

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

Furthermore, Defendants assert attorney-client privilege in their attached letter. (Appendix 

Pgs. 51-53). However, privilege does not exist between APFA and Woods, Stephens, and O’Neil. 

Nor, does attorney client privilege exist whenever a third party is present on the communications 

between APFA and Woods, Stephens, and O’Neil. "The attorney-client privilege exists to protect 

confidential communications and to protect the attorney-client relationship and is waived by 

disclosure of confidential communications to third parties..." Shields v. Sturm, Ruger & Co., 864 

F.2d 379 (5th Cir. 1989). If any member of the entity with APFA was present there is no privilege. 

Finally, no privilege log was ever provided to itemize those communications or documents withheld, 

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so evaluating privilege is impossible—but most importantly they have likely waived privilege at this 

point based on the lack of producing a privilege log. “[T]hey forfeited any privilege by filing 

inadequate privilege logs and refusing to provide more detailed information when requested. . . . As 

a result, this argument is forfeited.” United States v. Fluitt, 22-30316, slip op. at 4 (5th Cir. Aug 04, 

2022). 

Undue Burden Objection: 

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

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

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

1998)). Rule 26(b)(1) provides that, "[u]nless otherwise limited by court order, the scope of discovery 

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

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

issues at stake in the action, the amount in controversy, the parties' relative access to relevant 

information, the parties' resources, the importance of the discovery in resolving the issues, and 

whether the burden or expense of the proposed discovery outweighs its likely benefit. Information 

within this scope of discovery need not be admissible in evidence to be discoverable." Am. Fed'n of 

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

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

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

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

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

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

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

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

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

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

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

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

(1) relevance of the information requested; 

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

(3) the breadth of the document request; 

(4) the time period covered by the request; 

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

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

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

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

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

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

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

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

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

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

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

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

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

The basis of this suit centers on Defendants withholding information from a disciplinary 

hearing for payments and charges Plaintiff made while in office. Harris4 requested Woods, Stephens, 

4 Erik Harris, Defendant, is the current National Treasurer, and a member of the opposing political faction from the 

Ross Administration within the union. 

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and O’Neil create documents to reflect calculations that showed Plaintiff was overpaid. It was then 

presented to Plaintiff and the APFA Board of Directors citing that it was the accounting firm that 

determined that Ross owed this money. But in 2019, APFA conducted a similar audit of the other 

officers under the Ross Administration, and made a similar demand was made on the remaining Ross 

Administration officials. Why was no demand made of Ross at that time? This was likely discussed 

at that time. It is likely that communications and documents retained within Woods, Stephens, and 

O’Neil records from 2018 to current relate to the Ross Administration and Ross’s payment under his 

Transition Agreement.

56

 It is further likely that those documents and records with APFA officials,

may not likely be recoverable by APFA since new National Officers now hold office. The National 

Officers during 2019 are not the same as those currently serving, thus it is likely that those 

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

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

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

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

non-privileged evidence considering the circumstances at issue. 

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

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

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

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

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

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

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

5 Ross was not paid under APFA policy but under his negotiated Exit or Transition Agreement.

6 The Court should note that the National Officers discussed how to permanently delete emails and communications in

a regularly held Board of Director’s meeting held shortly after being served with process on the Ross v. APFA et al 

lawsuit. 

Case 4:22-cv-00343-Y Document 137 Filed 10/19/23 Page 15 of 21 PageID 2702
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conducted an accounting review of payments made under the Ross Transition Agreement during 

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

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

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

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

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

all documents related to the accounting review that precipitated.

Vague, Ambiguous and Overly-broad Objection: 

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

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

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

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

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

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

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

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

general or boilerplate objections and requirements that the objections must be made with specificity 

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

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

The Subpoena request describes with reasonable particularity those documents within 

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

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

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

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

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17 

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

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

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

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

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

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

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

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

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

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

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

Relevancy Objection: 

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

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

of producing the material.’” Walsh v. Alight Solutions LLC, 44 F.4th 716, 724 (7th Cir. 2022) (quoting 

EEOC v. Ford Motor Credit Co. , 26 F.3d 44, 47 (6th Cir. 1994)); see see Chao v. Loc. 743 Int’l Bhd. 

of Teamsters, AFL-CIO, 467 F3d 1014, 1017 (7th Cir. 2006) (requiring requested information to be 

"reasonably relevant"). "Under that rule, information is relevant if it 'bears on, or that reasonably 

could lead to other matters that could bear on, any issue related to the claim or defense of any party.’”

Leonard v. Martin, 38 F.4th 481, 489 (5th Cir. 2022) (citing Coughlin v. Lee, 946 F.2d 1152, 1159 

(5th Cir. 1991). 

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

Objection: 

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

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

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18 

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

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

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

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

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

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

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

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

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

made and received by Plaintiff. Considering Plaintiff claims the union wrongfully disciplined him

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

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

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

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

relevant information. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

misconduct alleged by Defendants. 

CONCLUSION

WHEREFORE, PREMISES CONSIDERED, Plaintiffs request that this Court schedule 

this matter for a hearing to discuss the issues relating to discovery and ultimately grant his Motion to 

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

Court deems proper.

THIS, the 19th day of October, 2023. 

Respectfully submitted,

 

 

By: /s/ Kerri Phillips 

Kerri Phillips, Esq.

Texas Bar No. 24065906

Phone: (972) 327-5800 

Email: kerri@kdphillipslaw.com

KD PHILLIPS LAW FIRM, PLLC

Case 4:22-cv-00343-Y Document 137 Filed 10/19/23 Page 19 of 21 PageID 2706
20 

6010 West Spring Creek Parkway

Plano, Texas 75024

Fax: (940) 400-0089 

For Service of Filings: 

notice@kdphillipslaw.com 

 

ATTORNEY FOR PLAINTIFF

CERTIFICATE OF CONFERENCE

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

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

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

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

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

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

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

a response on August 30, 2023 stating documents would be produced on August 31, 2023. As of 

the date of filing this Motion, Plaintiffs served extremely limited responses that were heavily 

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

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

requested in this Motion and Defendants’ counsel has replied they are opposed to the Motion. 

Counsel for Diversified is unopposed. 

Additionally, in compliance with the Court’s order entered on September 8 2023, 

Plaintiff’s Counsel conferred with Defendant’s counsel on September 12, 2023 via email, on a 

telephone call on September 15, 2023 I was informed Opposing counsel did not know if he 

represented Woods, Stephens O’Neil (despite declining to withdraw his objections prior to the 

original filing of this motion) , so I emailed notice to Hal O’Neil, Bill Osborne, (prior counsel) 

and Sandy Denison (prior counsel) on September 18, 2023 and mailed certified mail a copy of the 

pleading to Hal O’Neil. Subsequently emailed on September 20, 2023 and September 22, 2023. 

On September 25, 2023, Opposing counsel confirmed his representation of Woods Stephens and 

O’Neil, LLP. Thereafter, Defendants’ counsel served responsive heavily redacted discovery, and 

opposes this motion. Plaintiff maintains that no attorney client privilege can be maintained 

between counsel for Defendant and Woods, Stephens, and O’Neil prior to the filing of this matter 

and therefore asks the court to compel discovery. 

As of October 19, 2023, Defendant’s counsel did send a final email with minimal 

documents—still redacted, just before Plaintiff’s deadline to amend this pleading, however all of 

Plaintiff’s original issues continue to persist. (See Appendix pp. 66-74). 

THIS, the 19th day of October, 2023. 

 

By: /s/ Kerri Phillips 

Kerri Phillips

Case 4:22-cv-00343-Y Document 137 Filed 10/19/23 Page 20 of 21 PageID 2707
21 

CERTIFICATE OF SERVICE

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

MOTION TO COMPEL PRODUCTION OF DOCUMENTS IN RESPONSE TO 

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

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

this the 19th day of October, 2023. 

 

By: /s/ Kerri Phillips 

Kerri Phillips

Jeffrey Bartos

Guerrieri, Bartos, & Roma, P.C. 

1900 M Street, NW, Suite 700

Washington, DC 20036

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

Email: jbartos@geclaw.com

Charlette Matts

In-House Counsel for APFA

1004 West Euless Blvd

Euless, TX 76040

Tel: (682) 301-8454 

Cmatts@apfa.org

James Sanford

4803 Gaston Avenue

Dallas, TX 75249-1020 

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

0001 

Email jim@gillespiesanford.com

Email: joe@gillespiesanford.com

Michael Rake

PO Box 1556 

Lake Dallas, TX 75065-1556 

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

Email: mrake1@mrakeattorney.com

Case 4:22-cv-00343-Y Document 137 Filed 10/19/23 Page 21 of 21 PageID 2708