UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 1:20-CV-22423-UU 

PLAINTIFF/COUNTERCLAIM-DEFENDANT SH GROUP GLOBAL 

IP HOLDINGS, L.L.C.’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL 

DEFENDANT JOHN P. BOSTANY TO PRODUCE RESPONSIVE DOCUMENTS 

SH GROUP GLOBAL IP HOLDINGS, L.L.C., 

Plaintiff/Counterclaim-Defendant, 

v. 

2399 COLLINS AVENUE CONDOMINIUM 

ASSOCIATION, INC. 

Defendant/Counterclaim-Plaintiff, 

and JOHN P. BOSTANY, 

Defendant. 

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TABLE OF CONTENTS 

Page 

I. INTRODUCTION .............................................................................................................. 1

II. ARGUMENT ...................................................................................................................... 2

A. Bostany’s Refusal to Search for and Produce Responsive Documents Is 

Unjustified............................................................................................................... 2

B. SH Group Should Not Be Prejudiced by Bostany’s Dispute with His 

Former Counsel. ...................................................................................................... 4

C. Bostany’s Amended Responses to the RFPs Remain Deficient. ............................ 6

III. CONCLUSION ................................................................................................................... 7

 

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I. INTRODUCTION 

Defendant John P. Bostany’s (“Bostany”) responses to Plaintiff/Counterclaim-Defendant 

SH Group Global IP Holdings, L.L.C.’s (“SH Group”) Motion to Compel Bostany to Produce 

Responsive Documents (D.E. 46, 47, 54, 60) (collectively, the “Responses”) reflect that 

Defendants have not lived up to their discovery obligations, but rather have engaged in 

obstructive tactics. The result has been unnecessary motion practice and a waste of the parties’ 

and this Court’s resources. And despite filing the four Responses and now serving Amended 

Responses to SH Group’s Requests for Production Nos. 6–7, 13–15, 33, and 36 (the “RFPs”), 

Bostany still refuses to search for and produce documents. This Court should grant the Motion 

to Compel and reimburse SH Group’s reasonable expenses, including its attorneys’ fees, as 

required by Federal Rule of Civil Procedure 37(a)(5)(A).1

First, the Responses confirm that Bostany (a practicing attorney) had no justification for 

not searching for and producing responsive documents. Bostany claimed that responsive 

documents were held by Defendant and Counterclaim-Plaintiff 2399 Collins Avenue 

Condominium Association, Inc. (the “Association”). But as Bostany does not contest, that does 

not excuse him from also searching for and producing any responsive documents. Bostany also 

objected on the basis that documents were not within his possession, custody, or control, but was 

vague as to whether that was the basis for withholding production and whether it was a 

representation that he did not have any responsive documents, as opposed to not having some

responsive documents. SH Group repeatedly sought clarification, but to no avail. 

1

 SH Group defers to the Court with respect to whether it would find a hearing on the Motion 

to Compel helpful.

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Second, to the extent that Bostany blames his now former counsel for his deficient 

discovery responses, that does not excuse Bostany’s unfounded objections. Nor does it change 

that SH Group had to incur expenses in connection with the Motion to Compel. 

Third, Bostany’s Amended Responses to the RFPs remain deficient. For some, Bostany 

merely states that the Association has responsive documents, which, again, is no excuse. For 

other RFPs, Bostany claims to not have any responsive documents, but he has not conducted a 

reasonable search, nor is such a statement credible given his position with the Association. 

II. ARGUMENT 

A. Bostany’s Refusal to Search for and Produce Responsive Documents Is 

Unjustified. 

The Responses provide no adequate justification for Bostany’s refusal to search for and 

produce documents in response to the RFPs. He argues that the RFPs call for documents in the 

possession, custody, or control of the Association and that do not relate to Bostany, and thus he 

should not have to search for or produce documents. This is both legally and factually wrong. 

As a legal matter, the fact that another entity may have responsive documents does not 

excuse the party from conducting a reasonable search and producing responsive documents. See 

LLB Convenience & Gas, Inc. v. Se. Petro Distribs., Inc., No. 18-CV-914-ORL-40TBS, 2019 

WL 1586732, at *4 (M.D. Fla. Apr. 12, 2019) (granting motion to compel and finding 

“irrelevant” that another party may already have documents); Miccosukee Tribe of Indians of 

Fla. v. Cypress, No. 12-22439-CIV, 2013 WL 10740706, at *5 (S.D. Fla. June 28, 2013). Thus, 

while the Association may also have responsive documents, that does not excuse Bostany from 

searching for and producing documents. See Kindred Rehab Servs., Inc. v. Fla. Convalescent 

Ctrs., Inc., No. 3:06-CV-218-J-33MCR, 2007 WL 1695991, at *2 (M.D. Fla. June 11, 2007) 

(noting defendant’s independent “duty to produce all responsive documents”); Floeter v. City of 

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Orlando, No. 6:05-CV-400-ORL-22KRS, 2007 WL 486633, at *7 (M.D. Fla. Feb. 9, 2007) (“it 

was not appropriate for Floeter to refuse to produce responsive documents in his possession, 

custody or control based on his contention that the City already possessed the documents”). 

Bostany offers no response to this argument and case law. 

Bostany’s argument that the RFPs seek documents that only could be held by the 

Association, and not Bostany, also is factually flawed. Bostany is the Board President of the 

Association and is accused in this litigation of directing, controlling, and inducing the 

Association’s trademark infringement and tortious interference. (See D.E. 1 ¶¶ 2, 5, 46–47, 57.) 

Bostany has used personal email addresses in connection with matters for the Association. He 

also may have personal text messages, hard copy documents, and electronic documents 

(including drafts) on his personal computing devices. The Association did not represent that 

their collection efforts covered those potential sources for Bostany’s documents, and Defendants’ 

insistence on distinguishing between the Association and Bostany (including in the pending 

motion to dismiss the claims against Bostany2

) suggested the contrary. Moreover, the 

Association’s document collection efforts discussed in the Declarations of Bostany and Nicole 

Salcedo (the “Declarations”) refer only to a “Google Drive” of documents (e.g., D.E. 46 ¶ 3; 47 ¶ 

6), indicating that the Association did not search other sources. 

Moreover, it should not be lost that Bostany is responsible for the Motion to Compel. 

Bostany’s responses to the RFPs merely provided objections, without stating whether documents 

would be searched for and produced, or if Bostany was refusing to do so. (See D.E. 42 at 2, 7–8; 

D.E. 42-02 at 4, 7, 14–15.) SH Group sought clarification, and attempted to avoid motion 

2

 Bostany notes that his Motion to Dismiss the Complaint remains pending. (D.E. 60 at 2 n.1.) 

Bostany has not, however, moved to stay discovery pending that motion.

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practice, many times. For instance, after Bostany broke his agreement to amend his responses to 

the RFPs and to search for and produce responsive documents, SH Group asked: 

[I]s your position that such documents are not in Mr. Bostany’s possession, 

custody or control? If that is the case, can you please confirm that there are no 

documents that are respons[ive] to [the Requests for Production] that are in Mr. 

Bostany’s possession, custody, or control? Please clarify so we can assess 

whether a motion to compel is needed. 

(D.E. 42-05 at 3.) In response, Bostany stated that he “stands by the objections provided for 

each response. These requests are for documents that are all clearly Association records not 

personal records of Mr. Bostany.” (Id. at 2.) In response, SH Group explained: 

As the Association’s Board President, Mr. Bostany presumably would have these 

documents as well. It is possible that Mr. Bostany could have documents that the 

Association does not have. We have no way of knowing. The simple solution 

here, and what is required under the Federal Rules, is for Mr. Bostany to agree to 

search for and produce any responsive documents that are in his possession, 

custody, or control. We understand from your below response that he is refusing 

to do so. 

(Id.) SH Group followed up again after that, noting: “If we do not receive a response, including 

amended/supplemental discovery responses, we will have no choice but to move to compel.” 

(Id. at 1.) Bostany never responded. Because Bostany’s conduct caused the Motion to Compel, 

he must be ordered to reimburse SH Group’s reasonable expenses. See Fed. R. Civ. P. 

37(a)(5)(A). 

B. SH Group Should Not Be Prejudiced by Bostany’s Dispute with His Former 

Counsel. 

The Declarations blame Defendants’ former counsel, Allen, Dyer, Doppelt + Gilchrist, 

P.A. (“Allen Dyer”) for Bostany’s discovery deficiencies. The Declarations do not contest that 

Bostany (a practicing attorney) instructed and approved the Responses to the RFPs, nor that he 

instructed counsel to stand on the objections thereto after he previously agreed to produce 

responsive documents. In fact, the Bostany Declaration reveals that Bostany was an active 

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participant in the Responses to the RFPs. (See D.E. 47 ¶ 7.) Moreover, while the Salcedo 

Declaration claims that Allen Dyer did not inform Defendants as to SH Group’s most recent 

follow-ups regarding the RFPs (D.E. 46 ¶ 8), they do not contest that they were aware of the 

pending issue based on prior correspondence (see D.E. 42-05). 

Defendants accuse Allen Dyer of “resisting” and “refus[ing]” to produce certain 

documents. (D.E. 46 ¶ 19; D.E. 47 ¶¶ 7, 9.) Bostany also accuses Allen Dyer of instructing him 

to lie, stating that the firm “advis[ed] that they would only provide the documents to the Plaintiff 

if I pretended that the documents were not on the Google Drive.” (D.E. 47 ¶ 9.) In response, 

Allen Dyer has stated that the Declarations are “not accurate” and that the firm “has not refused 

to produce documents and has never suggested, advised, or hinted in any manner that Mr. 

Bostany, a practicing lawyer, should ‘pretend’ something to be not what it is or in any way 

mislead this Court.” (D.E. 49 at 3.) This Court specifically ordered Defendants to “respond to 

the Allen Dyer firm’s concerns as to the veracity of [the Declarations.]” (D.E. 53 at 3.) In 

response, Defendants merely claimed that “[t]here was some miscommunication between 

Defendants and prior counsel concerning what was directed to be produced.” (D.E. 54 ¶ 6.) 

SH Group should not be the victim of whatever “miscommunication” or misconduct 

occurred between Defendants and their former counsel. Rule 37(a)(5)(A) requires that: 

If the motion [to compel] is granted—or if the disclosure or requested discovery is 

provided after the motion was filed—the court must, after giving an opportunity 

to be heard, require the party or deponent 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. 

Fed. R. Civ. P. 37(a)(5)(A); see also Procaps S.A. v. Patheon Inc., No. 12-24356-CIV, 2013 WL 

6238647, at *17 (S.D. Fla. Dec. 3, 2013) (“Federal courts routinely award Rule 37 expense 

awards (including attorney’s fees) against both the party and its counsel.”) (emphasis removed). 

It is clear that Bostany was responsible for the objections that led to the Motion to Compel. 

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Even if Allen Dyer also is responsible, the failure to search for and produce documents was not 

justified and SH Group is thus entitled to reimbursement of its expenses. See Durrett v. Jenkins 

Brickyard, Inc., 678 F.2d 911, 916 (11th Cir. 1982) (“the perception that counsel was primarily 

at fault . . . should play no role in the decision whether to assess attorney’s fees”); Jones v. 

Anheuser Busch, Inc., No. 4:07-CV-0208-HLM, 2008 WL 11431078, at *2 (N.D. Ga. Dec. 19, 

2008), aff’d sub nom., 331 F. App’x 708 (11th Cir. 2009) (finding party “responsible for his 

lawyer’s actions or inactions in this case”).

C. Bostany’s Amended Responses to the RFPs Remain Deficient. 

In Defendants’ fourth filing relating to the Motion to Compel, Bostany has now served 

Amended Responses to the RFPs (D.E. 60-01), over two months after the initial responses were 

due, and almost two months after Bostany had initially agreed to provide amended responses 

(only weeks later to breach that agreement) (D.E. 42-04 at 3; D.E. 42-05 at 14). As a 

preliminary matter, even if the Amended Responses resolved the deficiencies, SH Group still 

would be entitled to its expenses as such amendment was made after the Motion to Compel was 

filed. Fed. R. Civ. P. 37(a)(5). Moreover, Bostany’s responses remain deficient. 

In response to RFP Nos. 6–7 and 14–15, Bostany states that “responsive documents are in 

the possession, custody, or control of the ASSOCIATION[.]” (D.E. 60-01 at 2–3.) As discussed 

above, that does not excuse Bostany from also producing responsive documents. To the extent 

that Bostany possesses the same documents as the Association, that is relevant. For instance, 

RFP No. 7 requests “DOCUMENTS sufficient to show the founding or formation of the 

ASSOCIATION and the scope of its authority.” (D.E. 42-01 at 11.) In response, Bostany 

pointed to “a Condo Declaration and Association Formation documents[.]” (D.E. 60-01 at 2.) 

To the extent Bostany also has such documents, that goes to his knowledge regarding the scope 

of the Association’s authority, including its ability (or lack thereof) to use and apply to register 

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trademarks owned by SH Group, or which otherwise infringe SH Group’s trademark rights. (See

D.E. 1 ¶¶ 32–34, 44, 62–64, 79, 81 (referencing the Declaration of Condominium).) Likewise, to 

the extent Bostany possesses documents regarding the Association’s expenditures on marketing, 

surveys, or research regarding the 1 HOMES mark, as requested in RFP Nos. 14–15, that is 

relevant to establishing Bostany’s involvement in the Association’s trademark infringement, as 

well as Bostany’s breach of his contractual obligations. (See id. ¶¶ 4–5, 44, 46, 57, 66, 74.) 

In response to RFP Nos. 13, 33, and 36, Bostany states that “there are no responsive 

documents within Bostany’s possession, custody, or control[.]” (D.E. 60-01 at 2–3.) This is not 

credible. In particular, Bostany was directly involved in the filing of the Petition for 

Cancellation of SH Group’s trademark registrations, and thus should have documents that were 

“referenced, relied upon or otherwise consulted” in preparing that petition. Bostany has refused 

to search his emails or other potential document sources, which would not be held by the 

Association. The recent filings involving Allen Dyer also raise serious credibility concerns 

about Bostany, thus supporting the need for the Court to ensure that he conducts an appropriate 

search for any responsive documents. See Evergreen Media Holdings, LLC v. Paul Rock 

Produced, LLC, No. 2:14-cv-499-FTM-29MRM, 2017 WL 8811732, at *2 (M.D. Fla. Dec. 13, 

2017) (requiring certification of reasonably diligent search and awarding attorneys’ fees); 

Arconic, Inc. v. Universal Alloy Corp., No. 1:15-CV-01466-ELR, 2017 WL 9516598, at *2 

(N.D. Ga. Nov. 28, 2017) (same).

III. CONCLUSION 

For the foregoing reasons, SH Group respectfully requests that the Court enter an order 

requiring Bostany to search for and produce all documents that are responsive to the RFPs, to 

award SH Group its reasonable expenses incurred relating to this Motion (including attorneys’ 

fees), and for all such other relief as the Court deems just and proper.

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Dated: October 29, 2020 Respectfully submitted, 

/s/ Gavin C. Gaukroger

 Gavin C. Gaukroger 

Fla. Bar. No. 76489 

Christina M. Perry 

Fla. Bar. No. 1003098 

BERGER SINGERMAN LLP 

350 East Las Olas Boulevard 

Suite 1000 

Fort Lauderdale, FL 33301 

Tel. (954) 525-9900 

Fax (954) 523-2872 

Email: ggaukroger@bergersingerman.com 

Email: cperry@bergersingerman.com 

Email: DRT@bergersingerman.com 

 DALE M. CENDALI 

(admitted pro hac vice) 

CLAUDIA RAY 

(admitted pro hac vice) 

SHANTI SADTLER CONWAY 

(admitted pro hac vice) 

KIRKLAND & ELLIS LLP 

601 Lexington Avenue 

New York, NY 10022

Tel. (212) 446-4800 

Fax (212) 446-6460 

Email: dale.cendali@kirkland.com 

Email: claudia.ray@kirkland.com 

Email: shanti.conway@kirkland.com 

Attorneys for Plaintiff/Counterclaim-Defendant

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CERTIFICATE OF SERVICE 

I HERBY CERTIFY that on October 29, 2020, a true and correct copy of the foregoing has 

been transmitted by electronic filing with the Clerk of the court via CM/ECF which will send 

notice of electronic filing to all counsel of record. 

 By: /s/ Gavin C. Gaukroger 

 Gavin C. Gaukroger 

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