Case 4:22-cv-00343-Y Document 163 Filed 11/27/23 Page 5of11 PagelD 3224

The Ross Administration served from 2016-2018—during the period for which Defendants base
their alleged counterclaims. During 2018-2023, Plaintiff and his administration were subject to
investigation, hearings, and ultimately disciplined by the union for those alleged misappropriation
that occurred during his tenure in office—2016-2018. Plaintiff spelled out finite time periods and
limited the subject-matter to ensure documents were relevant to the claims pending before this
court. Documents and communications from 2016-2018 are relevant to Defendant, APFA’s,
counterclaim for breach of fiduciary duty. Therefore, these documents are relevant to Plaintiffs
defense. To assuage Defendants’ concerns over financial documents, Plaintiff's Counsel offered
to limit production of documents served on this subpoena between WSO and APFA from 2018 to
current. It should be noted that if all documents prior to 2018 are excluded from production by
WSO, then Defendant loses the opportunity to introduce those documents at trial.
Counterargument: Plaintiff Needs Additional Documents Requested.

Defendants’ Counsel argues Plaintiff does not need the additional documents requested. It
is important to note that APFA, as a matter of policy, does not allow members to duplicate, copy,
or retain documents regarding the union business—all documents are in APFA’s possession only.
All documents relative to the union’s business may not be duplicated per APFA Policy under
Section 7(G)(1) and Section 8.° These documents are maintained within the APFA Archives only.”

Considering APFA concedes that it withheld documents from Plaintiff's Union
Disciplinary hearing, it is reasonable to request documents from a third party to avoid documents
being withheld or possible spoliation. The APFA National Officers citeds the accounting review
conducted by WSO at the meeting with APFA leadership to achieve a vote in favor of sending

Plaintiff to a disciplinary hearing.* (See Nena Martin Aff., PAGEID 1319, ECF No. 52-2). The

© https://www.apfa.org/policy-manual/

7 https://www.apfa.org/policy-manual/

§ The Court should note that APFA’s disciplinary procedures under Art. VII of the APFA Constitution require a charging
member to file charges with the National Secretary, then the Executive Committee reviews the charges and if voted valid, timely,
and specific then the Executive Committee refers the charges to an arbitrator for a disciplinary hearing.

4


Case 4:22-cv-00343-Y Document 163 Filed 11/27/23 Page 10o0f11 PagelD 3229

not to impede on Plaintiff's right to discovery to prove his claims. Plaintiff's Counsel’s
proposed an order to compel before this court that allows for redaction of any Non-Public

Personally Identifiable Information (“PII”). PII as defined by the U.S. Department of Labor as

“Any representation of information that permits the identity of an individual to whom the
information applies to be reasonably inferred by either direct or indirect means. Further, PII is
defined as information: (i) that directly identifies an individual (e.g., name, address, social security
number or other identifying number or code, telephone number, email address, etc.) or (ii) by which
an agency intends to identify specific individuals in conjunction with other data elements, i.e.,
indirect identification. (These data elements may include a combination of gender, race, birth date,
geographic indicator, and other descriptors). Additionally, information permitting the physical or
online contacting of a specific individual is the same as personally identifiable information. This
information can be maintained in either paper, electronic or other media.”!*

Exclusion of those responsive documents that contain PII for any party outside of the Ross
Administration is a convenient argument but infringes Plaintiff's rights under federal law.
Furthermore, it is an illogical solution to a simple problem—redaction of that information
federally protected and defined as PII would protect a third party’s right to privacy, while
ensuring justice may be served for Plaintiff as it would require disclosure of pertinent and
televant information to those claims pending before this court. Any documents that would
contain private confidential information relating to APFA staff would not be responsive to
Plaintiff's subpoena, unless such documents relate to the Ross Administration, in particular
Robert “Bob” Ross, Eugenio Vargas, and Nena Martin.

To date, communications have been withheld that are relevant to Plaintiff’s claims. Emails
were redacted based on frivolous claims of privacy—approximately 10 pages seem to have been
removed or redacted from those documents delivered, email chains referenced in other email
communications have not been turned over. (See P. App. Am. Mtn. to Compl., PAGEID 2782,
ECF No. 138-1).!5 Privacy should not be used as grounds for redacting multiple pages of
communications in the same thread, rather review of the documents illustrate that entire

communications have been redacted, which would not encompass concerns of documents that

' Guidance on the Protection of Personal Identifiable Information | U.S. Department of Labor (dol.gov)
15 See notation “quoted text hidden’ listed on numerous pages of WSO document production.

9



Case 4:22-cv-00343-Y Document 163 Filed 11/27/23 Page 7of11 PagelD 3226

of fiduciary duty alleges financial malfeasance for actions and conduct taken during Plaintiff’s time
in office—2016-2018. Additionally, Plaintiff claims the union and its officers violated federal and
state law for conduct that occurred from 2019 to current. Financial audits were conducted between
2018-2022 of the Ross Administration with communications about it up to 2023 by this accounting
firm and no communications or documents were produced related to those that occurred after 2020.
Abuse, intimidation, and harassment of anyone supporting the Ross Administration continues to this
day. Therefore, evidence from 2016 to current is within the scope of discovery.
Counterargument: Subpoena provides Reasonable Particularity.

Plaintiff's Counsel reached out and discussed these discovery issues with Defendants’
Counsel multiple times. (See generally P. App. Am. Mtn. to Compl., PAGEID 2727-80, ECF No.
138-1). Plaintiff's Counsel made clear in conferences the scope of this subpoena. (See generally
P. App. Am. Mtn. to Compl., PAGEID 2731-33, ECF No. 138-1). Defendants’ Counsel never
questioned what Plaintiff sought, outside of objections to it being overly-broad. (See generally P.
App. Am. Mtn. to Compl., PAGEID 2727-80, ECF No. 138, 138-1). Plaintiff made clear that the
original request sought all documents related to the Ross Administration between 2016-current as
Plaintiff sought communications and documents surrounding the Ross expenses incurred, the
accounting audits, and the accounting reviews of the Ross Administration. Defendants’ Counsel
offered a compromise to resolve the dispute over production of private financial documents in
which all documents from 2018-current relating to the Ross Administration would be produced.
(P. Brief Am. Mtn. to Compl, PAGEID 2695, ECF No. 137). However, Plaintiff's Counsel made
clear that production of those documents from 2016-2018 were responsive and requested because
Defendants’ counterclaim for breach of fiduciary duty is based on credit card charges and expenses
incurred by the Ross Administration while in office—from 2016 to 2018. (See App., 85-89).
Plaintiff is entitled to defend himself. Defendant will have to produce these documents at trial to

prove up its claim for breach of fiduciary duty. Defendants’ Counsel failed to comply with
6


Case 4:22-cv-00343-Y Document 163 Filed 11/27/23 Page 6of11 PagelD 3225

APFA National Officers did so to legitimize their claim that Plaintiff violated APFA policy and
owed money to the union. It is this alleged overpayment that formed the basis of Melissa Chinery-
Burns’ disciplinary charges against Plaintiff for purposes of meeting timeliness standards under
the APFA Constitution.” Only WSO possess internal communications, notes, and/or calculations
used to create its accounting review. These documents would shed light on WSO’s perceptions
regarding the charges against Plaintiff. WSO conducted a review in 2021 of Ross’s 401k
contributions, audits of Nena Martin in 2022, and legal costs and expenses related to this litigation,
yet have not been produced.

Counterargument: Subpoena is not Facially Overbroad.

Defendants’ counsel argues that Plaintiff's subpoena is facially overly broad. This
objection, however, is baseless as the Subpoena seeks only those documents pertaining to the Ross
Administration which inherently includes the individuals and time frame applicable. The Ross
Administration is defined as, and was clarified in conference with Defendants’ Counsel, as
documents pertaining to Robert “Bob” Ross, Eugenio Vargas, and Nena Martin. The Ross
Administration served from 2016-2018—during the period for which Defendants base their
alleged counterclaims. During 2019-2023, the Ross Administration was disciplined by the union
for alleged violations occurring from 2016-2018. These are finite time periods and subject-matter
that are relevant to the claims pending before this court.

Counterargument: Subpoena Covers a Reasonable Time Frame.
Objections in terms of subject matter or timeframe are baseless, as Defendants’ Counsel

failed to address and discuss this in any of their conferences. Defendants’ counterclaim for breach

° The Court should note here that the APFA Const. Art. VII, Sec. 2D requires charges be brought by a charging party—here
Melissa Chinery-Burns—within 60 days of the charging party’s discovery of the alleged violation. ‘The 60-day limitations period
began with disclosure of the Accounting Review (conducted by WSO) cited by the National Officers to the APFA Board of
Directors and APFA Executive Committee—both who must review and determine the validity of the charges for discipline. The
alleged overpayment was brought within 60-days of the cited Accounting Review, however several other charges--previously
struck as untimely—were allowed in because they were brought within 60-days of the Accounting Review. This is the reason
that this charge creates the basis for validating all other charges for discipline by the union.

5


Case 4:22-cv-00343-Y Document 163 Filed 11/27/23 Page 9of11 PagelD 3228

these emails and documents in either PST format (used for Windows) or mbox format (used for
MAC).!3 E-Discovery software will conduct a search of all documents, emails, calendar entries,
notes, and so on maintained and archived on a cloud within minutes with no disruption in the
business’s workflow. Plaintiff will absorb the costs for upgrading software, if so required.
However, Defendants’ Counsel seems to assert that a hardship is created by Plaintiff’s requests,
but fails to sufficiently describe the hardship imposed, the possible cost of complying, and the
extent of the hardship imposed on WSO, LLP when software can be purchased at minimal cost
and assistance is provided through WSO’s email service provider—Google, Inc.
Counterargument: Privacy is Protected for APFA Staff and Representatives.

As to any right of privacy for either representatives or employees of APFA, it is

contradictory to federal labor law to restrict a member’s request of any documents and
communications used in formulating the LM-2. (See Dfts Resp. Am. Mtn. to Compl, PAGEID
3104-05, ECF No. 153). The policy interest sought by the Labor Management Reporting and
Disclosure Act (““LMRDA”) is based on Congress’ findings that labor organizations committed
breaches of trust and are plagued with corruption and abuse of their union members. (29 U.S.C.
§ 401). Based on these findings, Congress requires labor organizations to disclose the financial
records of the union in a publicly filed report called the “LM-2.” (29 U.S.C. § 431(a)-(b)).
Congress additionally granted union members the right to examine the financial records of the
union, and a cause of action to enforce such disclosure of union documents in the event the union
withheld them. (29 U.S.C. § 431(c); 29 U.S.C. CRF 403.8). Unions, quite simply put, do not
enjoy a right of privacy, and to enforce such a right would seek to undermine federal policy
interests and the rights of union members under the LMRDA.

Concerns about privacy rights of those employed by the union can be addressed so as

Shttps://support. google.com/vault/answer/2473458?hl=en#:~-text=For%20details%2C%20g0%20t0%20Choose,content%20files
%2C%20PST%200r%20mbox.

8


Case 4:22-cv-00343-Y Document 163 Filed 11/27/23 Page 1of11 PagelD 3220

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

ROBERT (BOB) ROSS,
Civil Action No. 4:22-cv-430-Y
Plaintiff/Counterclaim
Defendant, Judge Terry R. Means
ve
(Relates to Motion Referred to
ASSOCIATION OF PROFESSIONAL

FLIGHT ATTENDANTS, et al., Magistrate Judge Cureton)

MLN MD LO UN UN OD LD HO?

Defendants/Counterclaim
Plaintiff.

REPLY TO RESPONSE TO AMENDED MOTION TO
COMPEL RESPONSE TO SUBPOENA
ISSUED TO WOODS, STEPHENS AND O’NEIL, L.L.P.



Case 4:22-cv-00343-Y Document 163 Filed 11/27/23 Page 11o0f11 PagelD 3230

disclosed confidential private employee information, these redactions are within communications
about the Ross Administration. Defendants’ and WSO’s desire not to disclose information
unfavorable to their case.

Defendants’ Counsel stated that he would turn over all documents and communications
related to the Confidential Memo, but none relating to any other matter. (See P. App. Am. Mtn. to
Compl., PAGEID 2732-33, ECF No. 138-1). However, Plaintiff needs the additional documents
requested as Plaintiff argues these documents evidence Defendants’ motivation to seek the
accounting review and audits used to target the Ross Administration. Plaintiff clearly needs these
documents to conduct a full deposition of the witnesses, including Defendants themselves. Plaintiff
requests the court to overrule Defendants and/or WSO objections and compel proper responses to
Plaintiff's Subpoena—from 2018 to current.

CONCLUSION

WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that this Court grant his
Motion to Compel Responses to the Subpoena on WSO, and for such other relief as the Court
deems proper.

THIS, the 27th day of November, 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
6010 West Spring Creek Parkway
Plano, Texas 75024

ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE
T hereby certify that a true and correct copy of the foregoing REPLY TO RESPONSE
TO 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 27th day of November, 2023.
By: /s/ Kerri Phillips
Kerri Phillips

10


Case 4:22-cv-00343-Y Document 163 Filed 11/27/23 Page 8of11 PagelD 3227

Plaintiff's Counsel’s offer to compromise as he redacted multiple sections on baseless objections
and continued to withhold documents. (P. App. Am. Mtn. to Compl., PAGEID 2782, ECF No.
138-1)'°. Therefore, Plaintiff renews his request for documents relating to Robert “Bob” Ross,
Eugenio Vargas, and Nena Martin from 2016-current. Plaintiff is entitled to defend himself. The
defense of the Ross Administration requires any and all documents pertaining thereto. The
limitation to the Ross Administration obviously restricts the scope of documents, the time frame,
and the individuals encompassed in this request.'!' Defendants should be compelled to produce
these documents.

Counterargument: Undue Burden is not Imposed on WSO.

Defendants and WSO assert this argument, but it holds no merit. (See Dfts Resp. Am. Mtn.
to Compl, PAGEID 3100, ECF No. 153). Modern-day platform hosts maintain e-discovery
software programs that allow for an easy search, recovery, review, organization, de-duplication,
automatic privilege notations, and easy delivery of documents recovered from a business server.
Microsoft and Google both maintain their own e-discovery software that make search, recovery,
review, and delivery of documents as easy as a Google search with assistance provided by the
service provider directly.

WSO subscribe to Google Workspace, as indicated in the documents produced in this case.
(See P. App. Am. Mtn. to Compl., PAGEID 2781, ECF No. 138-1). Google Workspace includes
e-discovery software called Google Vault.'2 Assuming WSO subscribes to the most basic plan
that does not provide Google Vault, an upgraded annual subscription to utilize Google Vault would

cost between $144-$216 for the entire year. Furthermore, Google Vault provides options to export

© See notation “quoted text hidden’ listed on this document—it was listed on multiple pages of WSO document production.

1! Robert “Bob” Ross, Eugenio Vargas, and Nena Martin are the National Officers that served under the Ross Administration
from April 1, 2016 to March 1, 2018.

'https://workspace. google.com/products/vault/#:~:text=Vault%20is%20included%20with%20Google.no%20additional%20cost
%20t0%20you. WSO document discovery indicate that it subscribes to Google Workplace to host its website and maintain its
business email accounts. The Court should note that Google Vault—the top-rated and most simple e-discovery software on the
market today—is free with two of the three programs subscriptions offered by Google Workspace.

7



Case 4:22-cv-00343-Y Document 163 Filed 11/27/23 Page 4of11 PagelD 3223

and withheld multiple all email communications, arguing undue burden, overly-broad, and privacy
as justification.* Withholding documents based on privacy or attorney-client privilege are baseless,
as this is a third party to the case at issue and no privilege exists on those documents disclosed to
WSO. (See P. App. Am. Mtn. to Compl., PAGEID 2762, ECF No. 138-1).
Plaintiff will reiterate the following in this pleading:
A. Limiting the subpoena requests to documents relating to the Ross Administration results in

documents related to Robert “Bob” Ross, Eugenio Vargas, and Nena Martin from the time they
served as National Officers—April 1, 2016 until current.

B. Plaintiff needs this evidence to sufficiently defend himself against claims of financial malfeasance
and to establish the facts that gave rise to Plaintiff's claims;

C. The requests place no burden on WSO due to the minimal cost of adding e-discovery tools to their
current subscription with Google Workspace; and

D. Privacy issues are sufficiently protected with the allowance of redactions for any Nonpublic
Personally Identifiable Information for any parties other than the Ross Administration.

WSO did not include communications and documents after 2020, whereas financial audits,
documents and communications should be produced up to 2023. (Dfts’ App. to Resp. Am. Mtn.
to Compl, PAGEID 3112, ECF No. 154). O’Neil declares he produced all documents from his file
to his counsel from 2019—not 2018—and ceased his search after 2020. (/d.) However,

Defendants’ counsel ignores that WSO conducted additional audits of the Ross Administration in
2018, 2021, and 2022—these documents were withheld.
Counterargument: Information is Relevant.

Defendants’ Counsel argues the information Plaintiff seeks in the subpoena is irrelevant.
(See Dfts’ Resp. Am. Mtn. to Compl, PAGEID 3116, ECF No. 153). The Subpoena seeks only
those documents pertaining to the Ross Administration. This was made clear in all conferences
with Defendants’ Counsel. The Ross Administration was defined, in conferences with Defendants’

Counsel, as Robert “Bob” Ross, Eugenio Vargas, Marcie Dunaway (retired) and Nena Martin®.

4 Documents were withheld based on the Declaration of Hal O’Neil and review of the documents. O’Neil produced documents,
but not all communications responsive to the Subpoena request. Additionally, the Declaration indicates that documents produced
did not include a full scrub of his email communications. (Dfts’ App. to Resp. Am. Mtn. to Compl, PAGEID 3112, ECF No.
154). Furthermore, WSO do not include communications and documents after December of 2020, whereas financial audits and
communications should be produced up to 2023. (See Dfts’ App. to Resp. Am. Mtn. to Compl, PAGEID 3112, ECF No. 154).
O'Neil declares he produced all documents from his file to his counsel from 2019—not 2018—and ceased his search after 2020.
He conducted additional evaluations of the Ross Administration in 2021, 2022 and in 2023—these documents were withheld.
5 Marcie Dunaway APFA National Secretary under the Ross Administration is no longer a Flight Attendant and APFA member.
3


Case 4:22-cv-00343-Y Document 163 Filed 11/27/23 Page 3of11 PagelD 3222

APFA Disciplinary Arbitration Award without any evidentiary support, including:

- The alleged overpayment of wages of $5,436.47 under the Transition Agreement;
- A family vacation;

- Personal travel expenses to and from his second family home;

- Furniture for his personal residence;

- Rental cars for his own personal use;

- Personal meals and expenses; and

- Apartment leased while he did not reside in it.?

Plaintiff contests these facts as none of them have been, nor can be, substantiated with evidence.
A union arbitration award for breach of fiduciary duty is unenforceable in court, as are the alleged
facts contained therein. The Arbitrator has no authority to enforce 29 U.S.C. § 501, and Defendant
has a right to due process of law. Defendant must meet every element of its claim with valid

admissible evidence—no? a union disciplinary arbitration award.

Finally, Defendants’ argued Plaintiff waited to seek out responses to this subpoena,
however Defendants filed a Motion to Stay discovery pending the outcome of multiple motions
that were resolved in February 2023. (Defs’ Mtn. to Stay Disc., ECF No. 54). Therefore, this
argument is frivolous as Plaintiff filed timely motions to compel.

REPLY ARGUMENTS

WSO’s conduct regarding discovery indicates APFA’s intent to subvert the discovery
process at all costs. WSO continues to withhold relevant documents responsive to Plaintiff's
requests and claims to appease APFA. Plaintiff argues that WSO seeks APFA’s agenda in their
challenge to Plaintiff's Subpoena. The Court should note that:

(1) WSO made multiple redactions based on meritless objections (approximately 15
pages) (See P. App. Am. Mtn. to Compl, PAGEID 2762, ECF No. 138-1);

(2) WSO limited the scope of Plaintiff's Requests for Production unilaterally (See P. App.
Am. Mtn, to Compl, PAGEID 2762, ECF No. 138-1);

(3) WSO continues to withhold documents from Plaintiff (See P. App. Am. Mtn. to
Compl, PAGEID 2762, ECF No. 138-1);>

Defendants and WSO unilaterally limited production of documents from 2019 to 2020, redacted

2 Every factual assertion is unsupported by evidence and improperly described—for example the LM-2 for 2018 list that Ross’s
furniture was repaid in question 13 in Section 69; APFA claims Ross took a vacation to the Grand Canyon is based on gas
receipts from Arizona when Ross’ family moved to Texas from California; Ross rented an apartment when he took office in April
of 2016 and moved his family to Texas during the School’s summer break with prior approval by the APFA Board of Directors.
3 Based on the Declaration of Hal O’Neil’s affidavit attached to the Response to Motion to Compel Subpoena responses. (See
Dfis’ App. to Resp. Am. Mtn. to Compl, PAGEID 3112, ECF No. 154).

2


Case 4:22-cv-00343-Y Document 163 Filed 11/27/23 Page 2of11 PagelD 3221

NOW COMES, pursuant to Fed. R. Civ. P. §§ 26(b)(1), 34(c), and 45, and Local Rules
§.2, 7.1. 7.2. 53.1, 56.3 and 56.6, Plaintiff files this, his Reply to Response to Motion to Compel
Production of Documents in Response to Subpoena Issued to Woods, Stephens, and O’Neil, L.L.P.
(“WSO”) and in support thereof, would respectfully show this Court as follows:

INTRODUCTION

Defendants’ Response to Plaintiff's Amended Motion to Compel cites several arguments
Plaintiff will briefly address. Defendants’ Response attacks Plaintiff's Counsel for his refusal to
agree to a protective order as well as her threat to file a motion for sanctions. Since filing this case,
Defendants’ Counsel sent several letters threatening to pursue Fed. R. Civ. Proc. § 11 sanctions
against Plaintiff's Counsel. (See App., 1-33). After multiple failed attempts to recover insurance
policy documents from Defendants, Plaintiff's Counsel served a subpoena on IMA Financial to
tetrieve these policy documents. (See App., 34-40). Thereafter, Defendants’ Counsel contacted
Plaintiff's Counsel seeking limitations to the documents subpoenaed and proposed an agreed
protective order—to which Plaintiff refused. (Dfts’ App. to Resp. Am. Mtn. to Compl, PAGEID
3116, ECF No. 154). When IMA Financial failed to timely deliver documents, Plaintiff's Counsel
emailed notice that Plaintiff's intent to file a motion to compel and motion for sanctions. (See App.,
41-46; 74-76). Defendants’ Counsel did not include the full email exchange with Plaintiff's
Counsel. (/d. at 43). In a subsequent email, Plaintiff's Counsel explained sanctions were justified
for misrepresentation of facts before this Court and withholding documents. (See Jd. at 44; 74-76).
In conjunction with the filing of this Reply, Plaintiff's Counsel includes copies of recorded
telephone conversation and transcripts of the conversations between the parties’ counsel on August
23, 2023 and September 15, 2023 in which these matters were discussed.' (App., 47-95).

Additionally, Defendants’ Response cites numerous factual assertions contained in the

1 True and correct copies of the recorded telephone conversations are available
‘drive. google.com/drive/folders/15claYxvLIVHTkW Sa6rPvj_StwA3hw315?
usp=sharing.

1