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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-CV-21254-BLOOM/Louis

SECURITIES AND EXCHANGE COMMISSION,

Plaintiff,

vs.

JUSTIN W. KEENER, d/b/a/ JMJ Financial

Defendant.

_____________________________________/

ORDER ON DISCOVERY DISPUTE

THIS CAUSE comes before the Court upon Defendant Justin W. Keener d/b/a/ JMJ 

Financial’s Motion to Compel Communications Between the Securities and Exchange Commission’s 

Office of Interpretation and Guidance and Third Parties (ECF No. 47). The Securities and Exchange 

Commission, the Plaintiff in this matter, filed a Response (ECF No. 48) and a subsequent Notice to 

clarify certain assertions made in its Response regarding an inadvertent oversight on the production 

of certain documents (ECF No. 59). The Court heard arguments on Motion on July 26, 2021. This 

Order succinctly memorializes but does not modify the rulings made in open court.

The present Motion to Compel follows an Order on noticed discovery disputes (ECF No. 45), 

in which I compelled Plaintiff SEC to produce documents responsive to Defendant’s First Request 

for Production, finding that Defendant proffered a relevant basis for seeking the documents. The 

Plaintiff’s assertion of burden, by contrast, I found was not fully substantiated by facts or evidence 

necessary to inform the Court’s proportionality analysis. The SEC insisted that search of the relevant 

database would require hundreds of hours of attorney time due, in part, to the limited search 

capabilities. I ordered the SEC to attempt to locate responsive documents using two test terms based 

on the argument presented at the hearing, and granted leave to file a motion to compel—or a motion 

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for a protective order—following the SEC’s production of responsive documents should the dispute 

persist. 

Defendant now moves to compel the SEC to continue its production by applying 14 search 

terms to the database and producing responsive documents from those results. Defendant argues that 

the emails returned from the two test terms demonstrate the relevant nature of the correspondence 

sought between the SEC and third parties; Defendant contends these communications show that the 

SEC caused confusion in the marketplace surrounding broker-dealer registration requirements. The 

SEC in response argues the opposite, contending that the documents produced cannot be relevant to 

Defendant’s affirmative defense of fair notice or scienter. The SEC substantiates its claim that to 

undertake the searches requested by Plaintiff would be exceptionally burdensome: an affidavit offered 

in support estimates that 52,000 hits resulted from Defendant’s proposed terms from one database 

alone (post-dating 2015) and the earlier data must all be hand-mined, all at great time and expense to 

the SEC. The SEC asks that the Motion be denied, and if it is, the SEC proposes to run a series of 

Boolean searches over the ESI to achieve narrowed results. 

The Parties have engaged in protracted conferrals to resolve their discovery disputes, but the 

application of search terms has unfortunately left them at loggerheads. Generally, the Court does not 

order the application of specific search terms to be applied for two reasons: first, it is always the 

propounding party’s obligation to produce responsive documents in compliance with Federal Rule of 

Civil Procedure 34, an obligation it cannot avoid by delegating the selection of search terms to either 

the requesting party or the Court. Second, and more practically, the propounding party is in a position 

of superior knowledge to the Court and the requesting party regarding the data to be searched. It is 

thus unique to this dispute, these Parties, and this case, that I have nonetheless ordered the application 

of specific terms to be applied to the SEC’s data and responsive documents produced therefrom. In 

so doing, I found that the search terms proposed by the SEC reflected thoughtful consideration of 

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Defendant’s proposed terms and affirmative defense, and I find that for this dispute, the SEC fully 

substantiated its assertion that the searches proposed by Defendant would be unduly burdensome and 

not proportional to the needs of the case. 

Ultimately, Defendant’s Motion was granted in part and denied, in large part. The Motion was 

denied to the extent Defendant moves to compel the application of the 14 specified search terms to 

the SEC’s data. At the hearing, counsel for the SEC advanced a series of search sentences that had 

been tested on the post-2015 data and returned modest hit results. Defendant advanced another two 

strings that, with some input from counsel for SEC, were adopted and included in the sentences the 

SEC was ordered to apply. Mindful of the deadline to complete fact discovery in this case, the SEC 

was ordered to complete the resulting production by no later than Monday, August 2, 2021, and to 

begin and make rolling productions as feasible in the interim. 

DONE and ORDERED in Miami, Florida this 27th day of July, 2021. 

________________________________

LAUREN F. LOUIS 

UNITED STATES MAGISTRATE JUDGE

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