UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI-DADE DIVISION 

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Case No. 20-cv-22957 

(RNS/EGT)

SCANZ TECHNOLOGIES, INC. fka EQUITYFEED 

CORPORATION, a Canadian (Quebec) Corporation, 

Plaintiff, 

v. 

JEWMON ENTERPRISES, LLC, et al., 

 Defendants. 

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DEFENDANTS’ REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT 

OF THEIR MOTION FOR SANCTIONS 

Case 1:20-cv-22957-RNS Document 167 Entered on FLSD Docket 06/29/2021 Page 1 of 16
TABLE OF CONTENTS 

ARGUMENT ...................................................................................................................... 1

I. Plaintiff and SLG Cannot Justify Their Extreme Discovery Misconduct .................. 1

II. Plaintiff and SLG Fail to Establish Lack of Prejudice ................................................ 3

III. Plaintiff’s and SLG’s Discovery Misconduct is Sanctionable .................................... 5

A. Sanctions Must Be Imposed on Plaintiff and SLG Pursuant to Rule 26(g) 

and 28 U.S.C. § 1927 ................................................................................................. 5

B. Sanctions Should Be Imposed on Plaintiff Pursuant to Fed. R. Civ. P. 37(c) ........... 9

CONCLUSION ................................................................................................................. 10

Case 1:20-cv-22957-RNS Document 167 Entered on FLSD Docket 06/29/2021 Page 2 of 16
TABLE OF AUTHORITIES 

 Page(s) 

CASES

Bernal v. All Am. Inv. Realty, Inc., 

479 F. Supp. 2d 1291 (S.D. Fla. 2006) ..................................................................7, 8, 9 

Classic Soft Trim, Inc. v. Albert, 

No. 6:18-cv-1237, 2020 WL 6734369 (M.D. Fla. June 15, 2020) ................................5 

EEOC v. M1 5100 Corp., 

No. 19-cv-81320, 2020 U.S. Dist. LEXIS 117243 (S.D. Fla. July 2, 2020)..................8 

First Coast Energy, L.L.P. v. Mid-Continent Cas. Co., 

No. 3:12-cv-281-J-32MCR, 2015 U.S. Dist. LEXIS 117123 (M.D. Fla. Mar. 

2, 2015) ..........................................................................................................................9 

Goines v. Lee Mem’l Health Sys., 

No. 2:17-cv-656-FtM-29NPM, 2019 WL 4016147 (M.D. Fla. Aug. 26, 2019)........6, 7 

Green Leaf Nursery v. E.I. duPont de Nemours and Co., 

341 F.3d 1292 (11th Cir. 2003) .....................................................................................6 

In re Delta/AirTran Baggage Fee Antitrust Litig., 

846 F. Supp. 2d 1335 (N.D. Ga. 2012) ......................................................................3, 8 

Indep. Mktg. Grp. v. Keen, 

No. 3:11-cv-447-J-25MCR, 2012 WL 207032 (M.D. Fla. Jan. 24, 2012) ....................9 

Mitchell v. Ford Motor Co., 

318 F. App’x 821 (11th Cir. 2009) ................................................................................3 

Mitchell v. Sch. Bd., 

No. 19-CV-81534, 2021 U.S. Dist. LEXIS 58313 (S.D. Fla. Mar. 25, 2021) ...............9 

Moore v. Publicis Groupe, 

287 F.R.D. 182 (S.D.N.Y. 2012) ...................................................................................7 

New Wave Innovations, Inc. v. McClimond, 

No. 13-22541-CIV-COOKE/TORRES, 2014 WL 11906628 (S.D. Fla. July 8, 

2014) ..............................................................................................................................9 

Scanlon v. N3, LLC, 

No. 1:08-CV-1069, 2009 WL 10699687 (N.D. Ga. May 26, 2009) ..............................7 

Swofford v. Eslinger, 

No. 6:08-cv-66-Orl-35, 2009 WL 1025223 (M.D. Fla. Apr. 14, 2009) ..................9, 10 

Case 1:20-cv-22957-RNS Document 167 Entered on FLSD Docket 06/29/2021 Page 3 of 16
ii 

Tampa Port Auth. v. M/V Duchess, 

No. 94-1727-CIV-T-23C, 1997 WL 1175718 (M.D. Fla. June 6, 1997).......................7 

Taverna Imps., Inc. v. A&M Wine & Spirits, Inc., 

No. 15-24198-CIV, 2018 U.S. Dist. LEXIS 125906 (S.D. Fla. July 27, 2018) ...........8 

Treister v. PNC Bank, 

No. 05-23207-CIV, 2007 U.S. Dist. LEXIS 10616 (S.D. Fla. Feb. 15, 2007) .............6 

U & I Corp. v. Advanced Med. Design, Inc., 

251 F.R.D. 667 (M.D. Fla. 2008).................................................................................10 

Valdes v. Greater Naples Fire Rescue Dist., 

No. 2:17-cv-417-FtM-29CM, 2018 WL 4281472 (M.D. Fla. Sep. 7, 2018) .................9 

Venator v. Interstate Res., Inc., 

No. CV415-086, 2016 U.S. Dist. LEXIS 50964 (S.D. Ga. Apr. 15, 2016) .......3, 4, 5, 8 

Wynmoor Cmty. Council, Inc. v. QBE Ins. Corp., 

280 F.R.D. 681 (S.D. Fla. 2012) ....................................................................................9 

Zanakis v. Scanreco Inc., 

No. 1:18-cv-21813, 2019 WL 4748392 (S.D. Fla. May 21, 2019) ................................5 

RULES

Fed. R. Civ. P. 26(g) .................................................................................................. passim 

Fed. R. Civ. P. 37(c) ................................................................................................1, 3, 5, 9 

STATUTES

28 U.S.C. § 1927 ..........................................................................................................1, 8, 9 

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Plaintiff’s Opposition (ECF No. 153) to Defendants’ Motion (ECF No. 145) relies on 

conclusory, irrelevant (and often false) assertions, rebuttals of straw man arguments, and 

attempts to rewrite history, but the record—and Plaintiff’s silence as to large portions of it—

speaks for itself. Defendants have incurred substantial time and expense unraveling Plaintiff’s 

and SLG’s falsehoods—which continue to this day—in order to obtain critical documents that 

were supposed to be produced on March 15. Indeed, but for Defendants efforts to force Plaintiff 

to comply with its most basic discovery obligations, Plaintiff would have never produced a 

single internal electronic communication related to this case. Plaintiff’s and SLG’s misconduct 

must be sanctioned pursuant to Fed. R. Civ. P. 26(g) and 28 U.S.C. § 1927, and should further be 

sanctioned pursuant to Fed. R. Civ. P. 37(c).1

ARGUMENT 

I. Plaintiff and SLG Cannot Justify Their Extreme Discovery Misconduct 

Rather than address the relevant facts laid out in the Motion, Plaintiff simply ignores 

most of them and argues that “no emails were willfully withheld, no misstatements were made 

by Plaintiff or its counsel, [and] no prejudice to Defendants resulted.” (Opp. at 3.) But 

willfulness is not the standard (as discussed below), misstatements were made (as evidenced by 

the fact that hundreds of responsive communications existed despite repeated assertions to the 

contrary), and Defendants have clearly been prejudiced, including by being forced to incur 

substantial time and expense to obtain basic discovery. 

With respect to Slack messages—Plaintiff’s “primary method” of business 

communication—Plaintiff tries to blame the Defendants by suggesting that Defendants asked 

only for “emails.” (Opp. at 6; ECF No. 153-2 at ¶¶ 16-17.) Plaintiff’s contention is belied by the 

express language of Defendants’ Requests, see Mot. at 3 (“Documents” defined to include “ESI” 

and “Communications”),2 and Plaintiff’s repeated confirmations that all “electronic 

communications” and “computer-based information” had been produced. See, e.g., Mot. at 4-5, 

7-8 (collecting examples). Plaintiff’s boilerplate reservation of rights to produce documents on a 

“rolling basis,” (Opp. at 7), is no excuse and simply cannot be reconciled with its specific and 

1

 Capitalized terms not defined herein have the meaning assigned to them in the Motion. 

2 See also ECF No. 153-6 at 59:17-18 (“THE COURT: I’m sure [Defendants’] request says ‘all 

documents or communications.’ I mean, nobody says emails anymore. Right?”). 

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unequivocal statements that no additional responsive documents existed—a patently false 

assertion. Plaintiff’s claim that it “promptly provided links to all relevant Tweets” is also false. 

(Opp. at 6.) Plaintiff provided links in June after Defendants notified the Court they intended to 

move for sanctions. Plaintiff’s contention also misses the larger point, recognized by the Court 

in April, that Plaintiff had not fulfilled its obligation to search for all relevant public statements. 

See ECF No. 146-7 at 53:10-16 (“THE COURT: ... [Defendants’] request is for any public 

statements. That doesn’t just include Twitter... They may not know of another source that 

[Plaintiff] made statements to on a public way. So there’s nothing wrong with the question.”). 

Plaintiff fails to explain why, despite filing this lawsuit, Plaintiff never (i) turned off the 

auto-delete function on its CEO’s business e-mail account, (ii) implemented a document 

retention policy, or (iii) informed two of its three employees to preserve documents. (Mot. at 9-

10.) Plaintiff fails to explain why SLG delegated the search, collection, and review of 

documents to Plaintiff’s self-interested CEO, Stephan Touizer, a non-lawyer who has never been 

involved in U.S. litigation, has never read the Federal Rules of Civil Procedure and is, 

admittedly, “no e-mail expert.” (Id. at 10-11.) Plaintiff offers no explanation or justification for 

SLG’s certification of Plaintiff’s R&Os (which Mr. Touizer verified under oath), which 

repeatedly represented that all responsive documents had been produced despite Mr. Touizer’s 

knowledge that he had not (i) searched Slack; (ii) collected documents from Plaintiff’s Chief 

Technology Officer, despite being informed that he had responsive documents; (iii) asked 

Plaintiff’s only other employee to search for responsive documents; (iv) searched multiple 

company e-mail accounts that contained responsive information; (v) collected hundreds of 

responsive e-mails from his own e-mail accounts; or (vi) conducted any search for public 

statements—including those on social media—responsive to RFP No. 28. (Id. at 4, 7, 11-13.) 

Indeed, rather than investigate or conduct independent verification when put on notice of 

obvious deficiencies, SLG falsely represented for months—repeatedly and unequivocally—that 

no other responsive documents existed. (Mot. at 4-5 (collecting statements made by SLG in 

March); id. at 6-8 (collecting statements made to Court and in verified Interrogatory Responses 

in April and May).) Plaintiff provides no explanation for this dereliction of duty, nor is there 

one. Even when communications (including fewer than 100 Slack messages) were finally 

produced at the end of May, Defendants learned the production remained incomplete (among 

other concerning facts) only after taking a special 30(b)(6) deposition. (Id. at 12-13.) 

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Incredibly, SLG’s misstatements continued during the pendency of this Motion. On June 

22—the same day that Mr. Botwin submitted his Declaration to the Court that Plaintiff had 

produced “everything prior to the multiple sessions of Mr. Touizer’s deposition,” that “Mr. 

Reichard and [Mr. Botwin] carefully interviewed Plaintiff’s CEO Mr. Touizer in order to assure 

that everything had been produced,” and “[w]e are very confident that every Slack message 

responsive to the Defendants’ request has been produced”—Defendants obtained, in response to 

a subpoena to the other party to those communications, at least 15 highly relevant Slack 

messages with Mr. Touizer that Plaintiff hadn’t produced. Compare ECF No. 153-2 at ¶ 17 

with Ex. 18 (Slack messages produced by Josh Andrews on June 22, filed herewith). 

II. Plaintiff and SLG Fail to Establish Lack of Prejudice 

Plaintiff’s (unsupported) argument that Defendants have failed to prove prejudice 

misapprehends the law and ignores the facts. (Opp. at 8.) Prejudice is not a prerequisite to 

sanctions under Rule 26(g) and, under Rule 37(c), “[t]he burden of establishing that a failure to 

disclose was substantially justified or harmless rests on the nondisclosing party,” i.e. Plaintiff. 

Mitchell v. Ford Motor Co., 318 F. App’x 821, 824 (11th Cir. 2009) (citation omitted); Venator v. 

Interstate Res., Inc., No. CV415-086, 2016 U.S. Dist. LEXIS 50964, at *34 (S.D. Ga. Apr. 15, 

2016) (“[P]rejudice plays no role in assessing whether a Rule 26(g) violation exists,” only the 

“appropriate sanction”) (citation omitted). 

Plaintiff argues that there is no prejudice because (1) no “smoking gun” evidence was 

withheld; and (2) Plaintiff’s belated productions of hundreds of documents shortly before 

depositions were not overly time-consuming to review. (Opp. at 8-10.) While Defendants 

disagree with Plaintiff’s characterization of the belatedly produced documents, no “smoking 

gun” evidence is required for the imposition of sanctions, and Plaintiff’s purported survey of 

“trade secrets law” is wholly irrelevant. See In re Delta/AirTran Baggage Fee Antitrust Litig., 

846 F. Supp. 2d 1335, 1349, 1353, 1365 (N.D. Ga. 2012) (imposing monetary sanctions pursuant 

to Rules 26(g) and 37(c)(1) despite the fact that belated production did “not appear to contain 

‘smoking gun’ evidence” because that “does not excuse [] discovery failures and 

misrepresentations”). Likewise, Defendants disagree that there is no prejudice from having to 

review hundreds of documents—which should have been produced months earlier—on the eve 

of depositions, but, more importantly, Plaintiff ignores that, but for Defendants’ continued 

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inquiries (including a special 30(b)(6) deposition) in the face of Plaintiff’s denials, these 

documents never would have been produced. Nor does Plaintiff address the fact that it produced 

hundreds of e-mails and Slack messages only at the end of May, shortly before the June 2 special 

30(b)(6) deposition, itself. See Venator, 2016 U.S. Dist. LEXIS 50964, at *35 (fact that 

documents were produced two weeks before a deposition did “not eliminate [] completely” “the 

prejudicial impact of untimely production.”). And Plaintiff does not acknowledge that it failed to 

produce at least 15 Slack messages to which it was party, precluding Defendants from 

questioning Mr. Touizer about those documents during his deposition. See supra Section I. 

Plaintiff notably also does not address the prejudice that is specifically laid out in the 

Motion, including “the significant expense incurred in connection with obtaining discovery to 

which Defendants were plainly entitled on March 15” and the diversion of “time and resources 

away from the substance of this litigation.” (Mot at 2.) Nor does Plaintiff address most of the 

categories of Defendants’ requested fees. (Id. at 2-3 (identifying reimbursable fees and 

expenses).) Plaintiff only expressly contests paying expenses for the April 15 Hearing and 

Defendants’ purported “unilateral” choice to retain a forensics expert. (Opp. at 16-19.) In fact, 

SLG invited Defendants to do just that in light of Plaintiff’s and SLG’s apparent inability to 

locate responsive documents. See ECF No. 146-7 at 39:12-15 (“MR. LAGE: Now, if 

[Defendants’ counsel] can locate something within the servers, within the computers, [it’s] free 

to do so. It’s beyond what we are capable of finding and what my client is capable of finding at 

this point.”); id. at 34:22-25 (discussing possibility of forensics expert). Plaintiff’s continuing 

refusal to comply with its discovery obligations forced Defendants to take matters into their own 

hands and hire an expert after the April 15 Hearing, which was disclosed to both Plaintiff and the 

Court. See ECF No. 153-6 at 46:3-18 (disclosing that Defendants hired a forensics expert).3 

3

 Contrary to Plaintiff’s mischaracterization, (Opp. at 17), the Motion states that Defendants 

learned about the 2016 date of the purported e-mail corruption event and availability of Mr. 

Touizer’s e-mails only after, inter alia, serving additional interrogatories, hiring an expert, and 

subpoenaing Rackspace. (Mot. at 4-5.) Plaintiff’s claim that it “candidly informed” Defendants 

in May 2021 that e-mails were lost in the first quarter of 2016, (Opp. at 17-18), omits that such 

information was provided only in response to the referenced supplemental interrogatories that 

Defendants were forced to serve, and contradicted earlier representations by SLG that e-mails 

were “missing” before 2017. (Mot. at 4.) Likewise, Plaintiff disclosed the existence of e-mails 

on the Rackspace server only after Defendants consulted a forensics expert and subpoenaed 

Rackspace. (Mot. at 8-9; ECF No. 153-6 at 46:3-18.) 

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As evidenced by Plaintiff’s and SLG’s steadfast false assertions, but for Defendants’ 

substantial efforts and continued diligence, Plaintiff never would have produced responsive 

communications. Defendants have suffered prejudice and the law is clear that they are entitled to 

appropriate sanctions, including associated fees and expenses. See Mot. at 15-17 (collecting 

cases under Rule 26(g)); id. at 19-20 (same for Rule 37(c)).4 

III. Plaintiff’s and SLG’s Discovery Misconduct is Sanctionable 

A. Sanctions Must Be Imposed on Plaintiff and SLG Pursuant to Rule 26(g) and 

28 U.S.C. § 1927 

Sanctions under Rule 26(g) are required because SLG’s failure to comply with Rule 26 

lacks any justification, let alone a substantial one. (Mot. at 14-15 (discussing standard).) In 

arguing that Rule 26(g) sanctions should not be imposed, Plaintiff asserts that “[i]t would have 

been substantially unreasonable to conclude that the Rackspace emails were not lost even though 

Rackspace confirmed that the emails were lost.” (Opp. at 11.) What is unreasonable is that SLG 

abandoned its obligations by entirely outsourcing document collection and review—and 

investigation of the Rackspace server issue—to Mr. Touizer. See Mot at 10-11; Venator, 2016 

U.S. Dist. LEXIS 50964, at *33 (“Attorneys must do more than turn over requests to a client’s 

employees and expect that person, particularly if he or she is a non-lawyer, to conduct an 

investigation that satisfies Rule 26(g). . . . Regardless, attorneys have a post-investigation 

obligation to make sure all responsive information is provided.”) (citations omitted).5 

4

 The cases cited by Plaintiff for the proposition that Defendants may not recover forensic expert 

fees are distinguishable. See Zanakis v. Scanreco Inc., No. 1:18-cv-21813, 2019 WL 4748392, 

at *2 (S.D. Fla. May 21, 2019) (denying request to hire experts at plaintiff’s expense because 

doing so would delay trial scheduled to begin in a week); Classic Soft Trim, Inc. v. Albert, No. 

6:18-cv-1237, 2020 WL 6734369, at *1, 7-8 (M.D. Fla. June 15, 2020) (non-party unilaterally 

elected to conduct forensic examination of its own documents and sent requesting party the bill). 

5

 After SLG instructed Mr. Touizer—multiple times—not to answer questions about whether 

counsel assisted in his search for responsive documents, (ECF No. 146-3 at 59, 61), Mr. Botwin 

has now submitted a Declaration purporting to describe his interactions with Mr. Touizer 

regarding the same issue, making the conclusory assertion that he does so “without waiving 

attorney client and work product privileges.” See, e.g., ECF No. 153-2 at ¶¶ 14, 18. That is not 

how privilege works and is improper. But, in any event, Mr. Botwin’s Declaration only confirms 

that SLG took no steps to independently investigate the Rackspace server issue or ensure that 

Plaintiff’s Slack account or other e-mail accounts (which were unaffected by the claimed 

corruption event) were searched prior to certifying that Plaintiff’s production was complete. 

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Moreover, in selectively focusing on e-mails on the Rackspace server, Plaintiff simply 

ignores most of the misconduct at issue. Plaintiff’s counsel certified that Plaintiff had produced 

“all responsive documents currently in Defendants’ possession, custody, and/or control” despite 

Plaintiff’s failure to search numerous obvious sources for responsive information. (Mot. at 11-

14.) Plaintiff and SLG provide no explanation for this, nor is there one. Plaintiff has three

employees; it is plainly unreasonable that SLG failed to identify Slack as a source of responsive 

communications or ensure that other sources of responsive electronic communications—

including employee e-mail accounts—were adequately searched before certifying (and 

maintaining for months) that all responsive documents had been produced. See Treister v. PNC 

Bank, No. 05-23207-CIV, 2007 U.S. Dist. LEXIS 10616, at *7 (S.D. Fla. Feb. 15, 2007) (Torres, 

J.) (Rule 26(g) “squarely requires an attorney’s signature on every discovery response to ensure 

that the lawyer has made reasonable inquiry to determine that her client’s responses are fully 

complete”) (citing Green Leaf Nursery v. E.I. duPont de Nemours and Co., 341 F.3d 1292, 1305 

(11th Cir. 2003) for the proposition that “signature of counsel certifies that counsel has made a 

reasonable effort to assure that the client has provided all the information and documents 

available to him that are responsive to the discovery demand”). 

SLG also certified Plaintiff’s verified Interrogatory Responses despite having failed to 

investigate or remedy any of the foregoing failures, despite being put on repeated notice by 

Defendants of the significant production deficiencies, and despite the Court’s observation that 

the purported lack of responsive emails was “a little hard to believe.” (Mot. at 6, 16.) There is 

no justification for this; Plaintiff and SLG were obviously aware of the existence of the Slack 

account and additional e-mail accounts that had not been searched because they were disclosed 

in the same document as the false representations that Plaintiff had “look[ed] through all 

relevant devices, severs, and cloud locations” and that “the computer-based information 

already turned over in discovery represents all possible responsive computer-based 

information in Plaintiff’s possession, custody, and control.” (ECF No. 146-9 at 3, 12, 14 

(emphases added).) 

The cases cited by Plaintiff in opposition are unavailing. In Goines v. Lee Mem’l Health 

Sys., the court declined to impose Rule 26(g) sanctions where there was one responsive 

Facebook post that had not been produced, expressly noting that counsel “would not have been 

able to access the account to check for responsive posts” because it had been either deactivated 

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or deleted and therefore could not “independently verify” whether any existed. No. 2:17-cv-656-

FtM-29NPM, 2019 WL 4016147, at *5 (M.D. Fla. Aug. 26, 2019). Here, Plaintiff claimed to 

have no responsive electronic communications when there were, in reality, at least hundreds of 

e-mails and Slack messages in accounts that were identified and accessible. SLG should have 

immediately taken steps to investigate and remedy the obvious deficiencies in Plaintiff’s March 

15 production. Instead, SLG simply repeated its false representations. See, e.g., ECF No. 

146-10 at 2-3 (Mr. Botwin representing on May 10 that “[t]here are no responsive emails”). 

Likewise, in Tampa Port Auth. v. M/V Duchess, the court expressly recognized that Rule 

26(g) requires “that the attorney had [made] a reasonable effort to assure his client has provided 

all of the responsive documents” and noted that the relevant attorneys had “assisted in gathering 

the documents” and “reviewed the documents for relevancy and privilege.” No. 94-1727-CIV-T23C, 1997 WL 1175718, at *6 (M.D. Fla. June 6, 1997). Here, Mr. Touizer testified that he led 

the search for responsive documents, that no one other than his two employees was involved, and 

that he, himself, made relevancy determinations based on his “own intelligence” even though he 

could not testify that he had read Defendants’ Requests. (Mot. at 10-11.) Further, the court in 

Tampa Port Auth. imposed Rule 37 sanctions, including the payment of fees and costs incurred 

“in conducting supplemental discovery, filing the motion for sanctions, and for appearing at the 

sanctions hearing” after noting that “[a]ll of the documents were in plaintiff’s possession 

throughout th[e] case and were easily discoverable.” 1997 WL 1175718, at *8-9.6

Plaintiff’s attempts to distinguish the cases cited by Defendants also fall flat. Bernal v. 

All Am. Inv. Realty, Inc., 479 F. Supp. 2d 1291 (S.D. Fla. 2006) is directly on point and 

Plaintiff’s attempt to distinguish it by arguing the attorney in Bernal filed a false affidavit 

6

 The other cases cited by Plaintiff are inapposite. Scanlon v. N3, LLC, which Plaintiff cites for 

the proposition that “absent reason to doubt a client’s veracity, an attorney is entitled to rely on a 

client for information for which there is no other source,” (Mot. at 11), does not even address 

Rule 26(g) and is distinguishable because here there were other sources of the responsive 

information, which Plaintiff at all times had access to. No. 1:08-CV-1069, 2009 WL 10699687 

(N.D. Ga. May 26, 2009). And Moore v. Publicis Groupe is a Southern District of New York 

case that does not apply the law of this Circuit; it also involved “over three million e-mails,” 

leading the court to observe that “no lawyer using any search method could honestly certify that 

its production is ‘complete.’” 287 F.R.D. 182, 188 (S.D.N.Y. 2012). Here, Plaintiff has 

produced fewer than 1,000 e-mails, and SLG certified completeness notwithstanding that e-mails 

had not even been collected from all three of Plaintiff’s employees and nobody had searched the 

company’s “primary method” of business communications. 

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ignores that it was not the basis for the court’s recommendation of Rule 26(g) sanctions. (Opp. 

at 12.) As relevant here, the Bernal court recommended sanctions—including attorneys’ fees—

against both the lawyer and client under Rule 26(g) due to the lawyer’s certification of false 

interrogatory responses that were “highly improbable” and his failure to “make a reasonable 

investigation to assure that his clients had provided all available responsive information.” 479 F. 

Supp. 2d at 1333-34. Those same circumstances exist here. So too with In re Delta/AirTran 

Baggage Fee Antitrust Litig., in which the court imposed monetary sanctions under Rule 26(g) 

because “Delta repeatedly represented to the Court and Plaintiffs that it had produced ‘a full and 

complete record’” but “[t]ime has proved those representations to be woefully inaccurate.” 846 

F. Supp. 2d 1335, 1353 & n.13 (N.D. Ga. 2012). Plaintiff’s attempt to distinguish Venator based 

on the purported lack of prejudice to Defendants is equally unavailing. As noted above, the court 

in Venator recognized that prejudice is not a requirement for sanctions and imposed monetary 

sanctions pursuant to Rule 26(g) where “defendants and defense counsel ha[d] consistently failed 

to turn over important discoverable documents . . . and engage in the reasonable inquiries 

required by Rule 26(g).” 2016 U.S. Dist. LEXIS 50964, at *35. And, as discussed above and in 

the Motion, Defendants have suffered prejudice. 

Finally, in EEOC v. M1 5100 Corp., the court was “greatly trouble[d] and concern[ed]” 

by the “‘self-collection’ of discovery documents, and especially of ESI, by [a party] . . . without 

adequate knowledge, supervision, or participation by counsel,” but declined to order an 

inspection at that time because there were still five months left in the discovery period and 

expressly reserved jurisdiction as to “an award of costs and attorney’s fees.” No. 19-cv-81320, 

2020 U.S. Dist. LEXIS 117243, at *4, 10-11, 13 (S.D. Fla. July 2, 2020). Here, not only did 

Plaintiff fail to produce any responsive communications until three weeks before the fact 

discovery deadline, but these productions followed months of false representations about the 

completeness of production. (Mot. at 8-9, 12 & n.6.) Rule 26(g) sanctions are certainly 

appropriate. See In re Delta/AirTran Baggage Fee Antitrust Litig., 846 F. Supp. 2d at 1351

(imposing sanctions where failure to conduct a reasonable investigation was “compound[ed]” by 

“repeated” and “unequivocal nature of [] representations” that party “had produced everything”). 

Sanctions are likewise appropriate under 28 U.S.C. § 1927 because SLG’s “objectively 

reckless” conduct is “sufficient to justify sanctions under § 1927 even if the attorney does not act 

knowingly and malevolently.” Taverna Imps., Inc. v. A&M Wine & Spirits, Inc., No. 15-24198-

Case 1:20-cv-22957-RNS Document 167 Entered on FLSD Docket 06/29/2021 Page 12 of 16
9 

CIV, 2018 U.S. Dist. LEXIS 125906, at *25 (S.D. Fla. July 27, 2018); Bernal, 479 F. Supp. 2d at 

1332 (“Reckless conduct” is “conduct that grossly deviates from reasonable conduct”). Plaintiff 

misreads Bernal, in which the court found that the attorney “was reckless . . . when he relied 

solely on the word of his client” before filing a false affidavit solicited by his client from a thirdparty. Id. at 1303, 1332. Here, SLG certified multiple false, sworn-to discovery responses and 

made repeated misrepresentations to Defendants and the Court based “solely on the word” of its 

client, despite obvious red flags. This resulted in numerous additional discovery requests and 

proceedings that otherwise would not have been necessary, justifying sanctions under § 1927. 

See id. at 1332-33; Mot. at 17 & n.8.7 

B. Sanctions Should Be Imposed on Plaintiff Pursuant to Fed. R. Civ. P. 37(c) 

Plaintiff largely ignores the substantial body of case law from this Circuit cited by 

Defendants holding that sanctions under Rule 37(c)(1) are warranted under the circumstances to 

compensate parties for unnecessarily incurred expense and to deter future misconduct. See, e.g., 

Mot. at 19-20 (collecting cases); see also First Coast Energy, L.L.P. v. Mid-Continent Cas. Co., 

No. 3:12-cv-281-J-32MCR, 2015 U.S. Dist. LEXIS 117123, at *28, 34-35 (M.D. Fla. Mar. 2, 

2015) (“[T]he sheer number of supplemental responses and the volume of documents produced 

after claiming that all responsive documents have been produced, which turned out to be false, in 

the face of Plaintiff's inquiries and statements that responsive documents did exist, . . . indicates 

that Defendant made no reasonable inquiry to ensure that all responsive documents have been 

produced and constitutes, at a minimum, gross negligence rising to the level of bad faith.”). 

Rather than address this on-point authority, Plaintiff cites to four cases that do not 

address Rule 37(c), (Opp. at 15-16),8 and Swofford v. Eslinger, in which the court denied as 

7

 The Court may properly consider Defendants’ request under 28 U.S.C. § 1927 because the legal 

and factual bases have been adequately briefed by the parties. See, e.g., Mitchell v. Sch. Bd., No. 

19-CV-81534, 2021 U.S. Dist. LEXIS 58313, at *32 (S.D. Fla. Mar. 25, 2021) (addressing claim 

raised in footnote on the “merits” because “the parties have adequately briefed the relevant 

issues”). 

8 See Wynmoor Cmty. Council, Inc. v. QBE Ins. Corp., 280 F.R.D. 681, 681, 685 (S.D. Fla. 2012) 

(motion to compel under Rule 37(a)); Valdes v. Greater Naples Fire Rescue Dist., No. 2:17-cv417-FtM-29CM, 2018 WL 4281472, at *1-2 (M.D. Fla. Sep. 7, 2018) (same); Indep. Mktg. Grp. 

v. Keen, No. 3:11-cv-447-J-25MCR, 2012 WL 207032, at *1-2 (M.D. Fla. Jan. 24, 2012) (same); 

New Wave Innovations, Inc. v. McClimond, No. 13-22541-CIV-COOKE/TORRES, 2014 WL 

11906628, at *1, 3 (S.D. Fla. July 8, 2014) (no sanctions under Rule 37(b) where party had not 

Case 1:20-cv-22957-RNS Document 167 Entered on FLSD Docket 06/29/2021 Page 13 of 16
10 

untimely a request brought “[w]ell after the conclusion of the discovery period” to re-open 

discovery (with associated fees) and for an adverse inference instruction. No. 6:08-cv-66-Orl35, 2009 WL 1025223, at *1 (M.D. Fla. Apr. 14, 2009). 

The only cited case that Plaintiff attempts to address is U & I Corp. v. Advanced Med. 

Design, Inc., 251 F.R.D. 667 (M.D. Fla. 2008) (“AMD”), arguing in summation that, “[i]n 

essence, for this Court to impose sanctions against Scanz under the circumstances would support 

the novel proposition that a plaintiff with colorable claims has lost its right to sue or must face 

sanctions simply because its emails were inadvertently lost.” (Mot. at 15.) Not so. Once again, 

Plaintiff narrowly focuses on the purported “corruption” event, arguing that, unlike in AMD, 

“Defendants here were well-aware of the undisputed evidence that Plaintiff lost its emails for 

reasons beyond its control.” (Mot. at 15.) That is not true. The “undisputed evidence” is that 

Plaintiff did not lose its e-mails; even many of Mr. Touizer’s purportedly “lost” e-mails were, in 

fact, available. But, more importantly, Plaintiff entirely fails to address why it did not disclose 

the so-called “corruption” event until questioned by Defendants, nor has it ever attempted to 

explain how that event—which covered a single e-mail account for a period pre-dating 2016—

excuses its failure to produce any responsive communications, from any account (e-mail or 

Slack), from any time period, when such documents indisputably existed and were readily 

accessible. Such misconduct is exactly what the court in AMD sanctioned. See AMD, 251 

F.R.D. at 675 (plaintiff failed to disclose that certain e-mails were “unrecoverable” at the time “it 

initially responded to [defendant’s] document request”); id. (plaintiff made “sporadic and 

incomplete document production” after asserting requests had been “fully responded to” and 

caused defendant to incur “unnecessary expense and delays in attempting to obtain [] compliance 

with legitimate discovery requests”); id. (plaintiff failed “to produce any responsive internal 

documents between [its] employees” or other responsive e-mails that “would not have been 

affected by [plaintiff’s] alleged server problem”). Sanctions here are likewise warranted. 

CONCLUSION 

 For the foregoing reasons, the Court should grant the Motion and award Defendants their 

requested relief, along with any such further relief that the Court deems just and proper. 

violated court order, but leaving open possibility of future sanctions upon a showing that 

“representations [about the completeness of production] were incorrect”). Plaintiff and SLG 

have made repeated misrepresentations about the completeness of production. 

Case 1:20-cv-22957-RNS Document 167 Entered on FLSD Docket 06/29/2021 Page 14 of 16
Dated: June 29, 2021 Respectfully Submitted, 

/s/ Justin B. Elegant

 Justin B. Elegant 

Florida Bar No. 0134597 

Sabrina T. Zarco 

Florida Bar No. 1025800 

BERGER SINGERMAN LLP 

1450 Brickell Avenue, Suite 1900 

Miami, FL 33131 

Phone: (305) 755-9500 

jelegant@bergersingerman.com 

szarco@bergersingerman.com 

ALSTON & BIRD LLP 

Brett D. Jaffe (admitted pro hac vice) 

Steven R. Campbell (admitted pro hac vice)

Gregg A. Fish (admitted pro hac vice) 

90 Park Avenue 

New York, New York 10016-1387 

Phone: 212-210-9400 

brett.jaffe@alston.com 

steven.campbell@alston.com 

gregg.fish@alston.com 

David S. Frist (admitted pro hac vice) 

One Atlantic Center 

1201 West Peachtree Street 

Suite 4900 

Atlanta, GA 30309-3424 

Phone: 404-881-7000 

david.frist@alston.com 

Attorneys for Defendants Jewmon Enterprises, 

LLC, Timothy Sykes, Millionaire Publishing, LLC, 

and Millionaire Media, LLC 

SQUIRE PATTON BOGGS (US) LLP 

Raúl B. Mañón 

Florida Bar No. 18847 

200 South Biscayne Boulevard, Suite 4700 

Miami, FL 33131 

Phone: +1 305-577-7000 

raul.manon@squirepb.com 

Case 1:20-cv-22957-RNS Document 167 Entered on FLSD Docket 06/29/2021 Page 15 of 16
Gabriel Colwell (admitted pro hac vice) 

555 South Flower Street, 31st Floor 

Los Angeles, CA 90071 

Phone: +1 213-689-5126 

gabriel.colwell@squirepb.com 

Joseph A. Meckes (admitted pro hac vice) 

275 Battery Street, Suite 2600 

San Francisco, CA 94111 

Phone: +1 415-954-0201 

joseph.meckes@squirepb.com 

Attorneys for Defendants StocksToTrade.com, Inc. 

and Zachary Westphal 

Case 1:20-cv-22957-RNS Document 167 Entered on FLSD Docket 06/29/2021 Page 16 of 16