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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 

DEFENDANT, MCGAUGHEY, REBER AND ASSOCIATES, INC., D/B/A DIVERSIFIED 

CREDIT SYSTEMS (DIVERSIFIED) RESPONSE TO 

PLAINTIFF’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS 

 Pursuant to Rule 34, Fed. R. Civ. P., Defendant, McGaughey, Reber and Associates, Inc. 

d/b/a Diversified Credit Systems (Diversified) hereby supplements its Response to Plaintiff’s 

Request for Production of Documents. 

Now comes the Defendant, McGaughey, Reber and Associates, Inc., D/B/A Diversified 

Credit Systems (Diversified) and files its response to Plaintiff’s Motion to Compel Documents. 

Diversified opposes Plaintiff’s Motion to Compel Production of Documents which was served on 

Defendant, Diversified on October 30, 2023. 

Defendant, Diversified, would show that Plaintiff’s Request for Production was served on 

September 14, 2023. Defendant responded on October 16, 2023 and produced Plaintiff’s requested 

documents that were not Attorney/Client Privileged on that date. (see Appendix pages 4-31) 

Defendant provided Plaintiff a “privilege log” of the documents not produced. (See 

Appendix Pages 2-4) All of the documents not produced were within the Attorney/Client Privilege 

or a result of Attorney work product. 

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Plaintiff’s arguments that Plaintiff will not be able to effectively prove his claims at trial 

has no merit. Defendant’s withheld documents, for the most part, where correspondence between 

Defendant’s own Attorney working on behalf of Defendant, A.P.F. A. and Defendant, A. P. F. A.’s 

other Attorneys, or between Defendant and its Attorney who was also representing A.P. F. A. in its 

collection suit against Plaintiff Ross. Defendant’s objection to producing those documents 

withheld should be sustained and Plaintiff’s Motion to Compel Denied. 

TABLE OF CONTENTS 

FACTUAL AND PROCEDURAL BACKGROUND .....................................................................3 

ARGUMENT: THE MOTION TO COMPEL SHOULD BE DENIED 

COMMON INTEREST DOCTORINE ................................................................3-5 

ARGUMENT: PLAINTIFF HAS NOT MET HIS BURDEN .......................................... 5 

ARGUMENT: PLAINTIFF’S CLAIMS REGARDING TIMELINES FOR PRIVILAGE. 

DEFENDANT’S COMMUNICATION WERE AFTER DEFENDANT, DIVERSIFIED 

WAS RETAINED TO COLLECT PLAINTIFF’S DEBT.............................................5-6 

 

3-CONCLUSION.............................................................................................. 6 

TABLE OF AUTHORITIES 

Cases 

United States v. Brown, H-17-567-1, 2023 WL 5939892, *5 (S.D.Tex. Sept. 12, 

2023) 

 Hill v. Hunt, 07-cv-02020, 2008 WL 4108120, *7 (N.D.Tex. Sept. 4, 2008): 

 

 

Page 

 

 4 

 4 

Wilson P. Abraham Const. Corp. v. Armco Steel Corp., 559 F.2d 250, 253 (5th Cir. 

1977) 

 4 

 

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FACTUAL AND PROCEDURAL BACKGROUND 

Defendant, Diversified was retained to collect a commercial debt arising from a dispute 

between Plaintiff, Ross and Defendant, A. P. F. A. That dispute had been on going for a significant 

period of time and involved Plaintiff’s employment with A. P. F. A. and some of its members. 

Defendant, Diversified was only hired to collect the debt verified by A. P. F. A. All communication 

and documents between Defendant, Diversified and Defendant A. P. F. A. were directly related to 

the debt set forth by A. P. F. A. A more detailed version of the dispute between Plaintiff, Ross and 

the other Defendants (except Diversified) is available in the pleading, briefs and arguments of the 

other parties. 

ARGUMENT THE MOTION TO COMPEL SHOULD BE DENIED 

COMMON INTEREST DOCTORINE 

 Plaintiff’s motion should be denied. Defendant, Diversified did produce those documents 

responsive to Plaintiff’s Request, accept those documents between the Attorneys representing the 

Defendant Parties and each other or Defendant, Diversified. 

 Defendants and their Attorneys, to the extent Defendant Diversified was involved in the 

case against Defendant Ross, were in the common interest of the Defendant Parties. The Fifth 

Circuit Court of Appeals and the Northern District of Texas has applied the common interest 

privilege doctrine in regard to situations when the Parties have a common interest. In that regards 

are the following cases: 

United States v. Brown, H-17-567-1, 2023 WL 5939892, *5 (S. D. Tex. Sept. 12, 2023)

Samsung Electronics America, Inc. v. Chung.325F.D.R. 578, 594 (N.D. Tex. 2017)

Arcuri v. Trump Taj Mahal Assocs., 154 F.R.D. 97,109 (D.N.J.1994) 

 5 

 

 6 

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The common interest or joint defense privilege is an exception to the general rule that 

no privilege attaches to communications that are made in the presence of or 

disclosed to a third party. In re Auclair, 961 F.2d [65] at 69-71 [5th Cir. 1992] (holding 

that the joint defense or common interest privilege preserved the attorney-client 

privilege against waiver in the context of a group with common legal interests). The 

common interest exception applies to co-defendants or potential co-defendants and their 

counsel.* See In re Santa Fe International Corp., 272 F.3d 705, 710 (5th Cir. 2001). 

The Fifth Circuit requires there to be some “palpable threat of litigation at the time of 

the communication” in order for the common legal interest extension of the attorneyclient privilege to apply. Id. at 711.

Hill v. Hunt, 07-cv-02020, 2008 WL 4108120, *7 (N.D.Tex. Sept. 4, 2008):

Courts have found privilege exists where a confidential communication is made to a third 

party if that party “has a common legal interest with respect to the subject matter of the 

communication.” Aiken v. Tex. Farm Bureau Mut. Ins. Co., 151 F.R.D. 621, 623 

(E.D.Tex.1993). The Fifth Circuit has stated that two types of communications are protected 

under the “common legal interest” doctrine, commonly called the joint-defense privilege: (1) 

communications between co-defendants in actual litigation and their counsel, * 

(2) communications between potential co-defendants and their counsel. In re Sante Fe 

Int’l Corp., 272 F.3d 705, 710 (5th Cir.2001); see also FTC v. Think All Pub., LLC, No. 4:07-

CV-011, 2008 WL 687456 at *1 (E.D. Tex. Mar. 11, 2008) (noting that common interest

doctrine is also referred to as joint defense doctrine); U.S. v. Impasto, No. 05-325, 2007 WL 

2463310 at *4 (E.D. LA. Aug.28, 2007); Killebrew v. City of Greenwood, Miss., No. 4:95-CV355, 1997 WL 208140 at *2 (N.D.Miss. Apr. 11, 1997). 

Wilson P. Abraham Const. Corp. v. Armco Steel Corp., 559 F.2d 250, 253 (5th Cir. 1977):

The case before us, however, presents somewhat of a twist to the usual attorney-client 

controversy ... The defendants here contend that in a case alleging conspiracy, such as the case 

at bar, the defendants have a right to consult together about the case, and that all information 

derived by any of the counsel from such consultation is necessarily privileged. The defendants 

persuasively argue that in a joint defense of a conspiracy charge, the counsel of each defendant 

is, in effect, the counsel of all for the purposes of invoking the attorney-client privilege in order 

to shield mutually shared confidences. We agree, and hold that when information is exchanged 

between various co-defendants and their attorneys that this exchange is not made for the purpose 

of allowing unlimited publication and use, but rather, the exchange is made for the limited 

purpose of assisting in their common cause In such a situation, an attorney who is the recipient 

of such information breaches his fiduciary duty if he later, in his representation of another client, 

is able to use this information to the detriment of one of the co-defendants 

*Emphasis added

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PLAINTIFF’S BURDEN 

 Plaintiff is required to “specifically and individually identify each discovery request 

in dispute and specifically, as to each request, identify the nature and basis of the dispute 

... and must include a concise discussion of the facts and authority that support the motion 

as to each discovery request in dispute.” Samsung Electronics America, Inc. v. Chung, 325 

F.R.D. 578, 594 (N.D. Tex. 2017). Plaintiff has failed to meet his burden in this regard by 

failing to provide the required specific and individual identity of each discovery request and 

the nature of the dispute regarding each request. 

PLAINTIFF’S CLAIMS REGARDING TIMELINES FOR PRIVILEGE 

Plaintiff claims that communications that pre-date the current lawsuit can't be 

covered by any joint defense privilege because Diversified and AFPA were not codefendants until the lawsuit was filed. All communications between Defendant 

Diversified, its Attorney and Defendant APFA were from the period when APFA retained 

Diversified to collect a debt on its behalf. The Suit Authorization letter (Appendix page 1) 

was dated July 8th, 2021 and all documents and communications between Defendants 

Attorneys that are claimed as “Attorney/Client Privileged” were after that date. 

 Plaintiff also alleges that there can be no privilege to any communications between 

Defendant’s Attorney (Michael Rake) and Margot Nikitas, because Nikitas was in-house 

lawyer for APFA and Ross was a member. However, this was at the point in time when APFA 

was initiating a suit against Ross to collect his debt and APFA and Ross were adverse parties 

at that point. In that regard, union members do not get access to all communications by inCase 4:22-cv-00343-Y Document 162 Filed 11/27/23 Page 5 of 7 PageID 3184
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house union counsel. See Arcuri v. Trump Taj Mahal Assocs., 154 F.R.D. 97, 109 (D.N.J. 

1994).

CONCLUSION 

WHEREFORE, PREMISES CONSIDERED, Defendant “Diversified” prays as 

follows: 

1. Plaintiff’s Motion to Compel Production of Documents be Denied. 

2. Respondent be awarded such other and further relief legal or equitable which 

Respondent may show itself justly entitle to receive. 

 REPECTFULLY SUBMITTED: 

 /S/ Michael R. Rake

_______________________________

Michael R. Rake, Attorney at Law 

SB # 16487600 

P.O. Box 1556 

Lake Dallas, TX 75065 

Tel. & Fax: 940-498-2103 

E-mail: mrake1@mrakeattorney.com

Counsel for Defendant, McGaughey, Reber, 

and Associates, Inc., d/b/a Diversified Credit 

Systems 

Dated: November 27, 2023 

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CERTIFICATE OF SERVICE 

I Certify that on November 27, 2023 a true and correct copy of the forgoing instrument was served 

upon Plaintiff’s attorney, Kerri Phillips, via e-mail to Kerri Phillips/kerri@KDphillipslaw.com. 

 /S/ Michael R. Rake 

 

______________________________ 

Michael R. Rake, Attorney at Law 

 

Copies by file manager to: 

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 

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

Email: jbartos@geclaw.com 

Counsel for Wood, Stephens & O’Neil, LLP, 

Association of Professional Flight Attendants, 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 

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