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’ MOTION FOR SANCTIONS AND MEMORANDUM OF LAW 

Case 1:20-cv-22957-RNS Document 145 Entered on FLSD Docket 06/17/2021 Page 1 of 26
TABLE OF CONTENTS 

MOTION............................................................................................................................. 1

PRELIMINARY STATEMENT ........................................................................................ 1

FACTUAL BACKGROUND ............................................................................................. 3

I. Defendants’ First Request for Production ................................................................... 3

II. Plaintiff Falsely Represents It “Produced All Responsive Documents” .................... 4

III. Plaintiff Makes Misrepresentations During the April 15, 2021 Hearing .................... 5

IV. Plaintiff Makes Misrepresentations in Its Verified Interrogatory Responses ............. 7

V. Plaintiff’s Eleventh Hour Production of Documents that Were Due on March 15 

and That Plaintiff and its Counsel Repeatedly Represented Did Not Exist ................ 8

VI. The Special 30(b)(6) Deposition Further Exposes Plaintiff’s Misconduct ................. 9

A. Plaintiff’s Failure to Preserve Relevant Information ................................................. 9

B. Mr. Touizer Led Plaintiff’s Search Efforts .............................................................. 10

C. Plaintiff’s Deficient Search for Responsive E-mails ............................................... 11

D. Plaintiff’s Failure to Search for Slack Messages and Inexplicable 

Withholding of Highly Relevant Information .......................................................... 12

E. Plaintiff’s Failure to Search for Responsive Videos ................................................ 14

ARGUMENT .................................................................................................................... 14

I. Sanctions Must Be Imposed on Plaintiff and SLG Pursuant to Rule 26(g) and 28 

U.S.C. § 1927 ............................................................................................................ 14

II. Sanctions Should Be Imposed on Plaintiff Pursuant to Fed. R. Civ. P. 37(c) .......... 18

CONCLUSION ................................................................................................................. 20

Case 1:20-cv-22957-RNS Document 145 Entered on FLSD Docket 06/17/2021 Page 2 of 26
TABLE OF AUTHORITIES 

 Page(s) 

CASES

Aztec Steel Co. v. Fla. Steel Corp., 

691 F.2d 480 (11th Cir. 1982) .....................................................................................18 

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

479 F. Supp. 2d 1291 (S.D. Fla. 2006) ............................................................14, 16, 17 

Chudasama v. Mazda Motor Corp., 

123 F.3d 1353 (11th Cir. 1997) ...................................................................................15 

Dragon Jade Int'l, Ltd. v. Ultroid, LLC, 

No. 8:17-cv-2422-T-27CPT, 2019 U.S. Dist. LEXIS 196144 (M.D. 

Fla. Nov. 12, 2019) ......................................................................................................20 

EEOC v. M1 5100 Corp., 

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

2020) ......................................................................................................................14, 17 

In re Delta/AirTran Baggage Fee Antitrust Litig., 

846 F. Supp. 2d 1335 (N.D. Ga. 2012) ......................................................14, 17, 19, 20 

Jaffe v. Bank of Am., N.A., 

No. 07-21093, 2008 U.S. Dist. LEXIS 128557 (S.D. Fla. Apr. 29, 

2008) ............................................................................................................................19 

Johnson v. BAE Sys., 

4 F. Supp. 3d 62 (D.D.C. 2013) ...................................................................................15 

Legault v. Zambarano, 

105 F.3d 24 (1st Cir. 1997) ..........................................................................................15 

Malautea v. Suzuki Motor Co., 

987 F.2d 1536 (11th Cir. 1993) ...................................................................................17 

Mitchell v. Ford Motor Co., 

318 F. App’x 821 (11th Cir. 2009) ..............................................................................18 

Norelus v. Denny’s, Inc., 

628 F.3d 1270 (11th Cir. 2010) ...................................................................................17 

Prior v. State Farm Fire & Cas. Co., 

No. 8:11-cv-01448-T-27TBM, 2013 U.S. Dist. LEXIS 196029 (M.D. 

Fla. Feb. 7, 2013) .........................................................................................................15 

Case 1:20-cv-22957-RNS Document 145 Entered on FLSD Docket 06/17/2021 Page 3 of 26
ii 

R & R Sails, Inc. v. Ins. Co. of State of Pa., 

251 F.R.D. 520 (S.D. Cal. 2008) .................................................................................16 

Shortz v. City of Tuskegee, 

352 F. App’x 355 (11th Cir. 2009) ..............................................................................18 

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) ............................................................................................................................17 

Tradeshift, Inc. v. BuyerQuest, Inc., 

No. 20-cv-01294-RS (TSH), 2021 U.S. Dist. LEXIS 78658 (N.D. Cal. 

Apr. 23, 2021) ..............................................................................................................15 

Travelers Ins. Co. v. Commercial Cool-Temp Corp., 

No. 11-61748-DIMITROULEAS/S, 2012 U.S. Dist. LEXIS 201783 

(S.D. Fla. Sep. 5, 2012) ................................................................................................20 

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

251 F.R.D. 667 (M.D. Fla. 2008)...........................................................................19, 20 

Venator v. Interstate Res., Inc., 

No. CV415-086, 2016 U.S. Dist. LEXIS 50964 (S.D. Ga. Apr. 15, 

2016) ......................................................................................................................15, 17 

RULES

Fed. R. Civ. P. 26(e) ..........................................................................................................18 

Fed. R. Civ. P. 26(g) ........................................................................................14, 15, 16, 17 

Fed. R. Civ. P. 37(b) ..........................................................................................................18 

Fed. R. Civ. P. 37(c) ..............................................................................................18, 19, 20 

Rule 37 .................................................................................................................................1 

STATUTES

28 U.S.C. § 1927 ..........................................................................................................14, 17 

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MOTION 

Defendants JewMon Enterprises, LLC, Millionaire Media, LLC, Millionaire Publishing, 

LLC, StocksToTrade.com Inc., Timothy Sykes, and Zachary Westphal (collectively 

“Defendants”) move for sanctions against Plaintiff Scanz Technologies, Inc. (“Scanz” or 

“Plaintiff”), and its counsel from Squire Law Group, P.A. (“SLG”), pursuant to Fed. R. Civ. P. 

26(g), Fed. R. Civ. P. 37(c), and 28 U.S.C. § 1928.1

PRELIMINARY STATEMENT 

 

Plaintiff and SLG have consistently failed to satisfy even their most basic discovery 

obligations and have repeatedly made misrepresentations—in sworn and certified discovery 

responses, oral and written communications to Defendants’ counsel, and statements to this 

Court—about the existence and availability of responsive information and the completeness of 

Plaintiff’s document productions. As previewed during the June 4, 2021 discovery conference 

and set forth below, Plaintiff’s misconduct includes (i) failing to take required steps to preserve 

relevant electronically stored information (“ESI”), (ii) repeatedly representing—falsely—that all 

responsive documents had been produced when, in fact, Plaintiff had access to hundreds of 

additional responsive emails that it claimed had been “lost,” (iii) failing to even search for ESI 

stored on the workplace messaging and collaboration platform known as Slack, despite 

Plaintiff’s sworn statement that Slack is its “primary method” of business communication, and 

(iv) SLG’s complete outsourcing of the document collection and review process to Plaintiff’s 

founder and CEO, and failure to meaningfully supervise any aspect of that process. 

Despite facing immediate questions from Defendants about the completeness of its 

production, Plaintiff and SLG not only failed to investigate and remedy the glaring deficiencies, 

but instead doubled-down and for months repeated their false assertions that all responsive 

documents had been produced or no longer existed. Indeed, even after an April 2021 discovery 

hearing in which Judge Torres found certain representations made by SLG to be “a little hard to 

believe” and a potential “Rule 37 issue,” Plaintiff’s and SLG’s false assurances continued for 

more than a month. 

1

 SLG is one of four law firms representing Plaintiff in this matter. While other of those firms 

participated in the subject discovery process, only SLG (which was Plaintiff’s initial counsel and 

commenced this action) signed the discovery responses and made the direct misrepresentations 

to counsel and the Court that are at issue here. 

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It was only after the expenditure of substantial time and resources by Defendants to 

expose Plaintiff’s misconduct—including the retention of a forensics expert, service of additional 

interrogatories and requests for production, and service of a subpoena on Plaintiff’s e-mail server 

provider—that Plaintiff finally began to produce critical responsive documents, mere weeks 

before the June 15, 2021 fact discovery deadline. Defendants were also forced to take a special 

30(b)(6) deposition of the Plaintiff, which revealed that Plaintiff and SLG had lied in their earlier 

sworn statements and representations and exposed the existence of hundreds of more responsive 

documents that had inexplicably been withheld. To this day, there remain significant concerns 

about the completeness of Plaintiff’s document production, which contains unexplained multiyear gaps during the period in which Plaintiff was allegedly investigating the only two remaining 

claims in this lawsuit. 

Plaintiff’s misconduct has substantially prejudiced Defendants. In addition to the 

significant expense incurred in connection with obtaining discovery to which Defendants were 

plainly entitled on March 15, Plaintiff’s dilatory and obstructionist tactics have consistently 

forced Defendants to divert time and resources away from the substance of this litigation, and 

Plaintiff’s late disclosures put Defendants in the position of preparing for multiple depositions 

and dispositive motion practice based on newly disclosed evidence that unquestionably should 

have been produced months ago when Plaintiff repeatedly certified that its document production 

was complete. 

The Court should impose sanctions on Plaintiff and SLG to remediate the prejudice 

suffered by Defendants and deter future misconduct. The Court has broad discretion to impose 

appropriate sanctions, and Defendants respectfully request that the Court award the following 

specific relief, along with any other relief the Court deems just and proper. Defendants are 

entitled, on multiple independent bases, to reimbursement of their fees and expenses incurred as 

a result of Plaintiff’s misconduct, including pursuant to Fed. R. Civ. P. 26(g) and 37(c) and 28 

U.S.C. § 1927. These reimbursable fees and expenses should include, at a minimum, those 

incurred in connection with (1) Defendants’ numerous meet and confers and written 

correspondence concerning Plaintiff’s failure to produce responsive electronic communications; 

(2) the April 15, 2021 telephonic discovery hearing; (3) the engagement of a forensic expert to 

assess Plaintiff’s repeated claims that responsive e-mails had been “lost” and were not 

recoverable; (4) the preparation and service of a third-party subpoena on Plaintiff’s e-mail server 

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provider and numerous calls and written correspondence regarding that subpoena; (5) the 

preparation of additional Interrogatories and Requests for Production directed at Plaintiff’s 

failure to comply with its discovery obligations, (6) the June 2, 2021 Special 30(b)(6) Deposition 

of Plaintiff; and (7) this Motion, including any subsequent related briefing and argument. 

* * * 

Defendants’ counsel gets no pleasure from bringing this Motion and does so only after 

taking every reasonable step—over many months—to stem Plaintiff’s and SLG’s persistent 

misconduct and abuse of the discovery process. This is not a motion about routine discovery 

disputes, nor is it a tactic designed to gain an advantage in a hotly contested litigation. The 

conduct in which Plaintiff and SLG have engaged has been outrageous, in plain violation of the 

discovery rules, and highly prejudicial to Defendants. This is precisely the sort of misconduct 

the sanctions provisions of the Federal Rules and applicable laws are designed to remedy. This 

Motion should be granted, Plaintiff and SLG should be sanctioned, and Defendants should be 

awarded the relief described below. 

FACTUAL BACKGROUND 

I. Defendants’ First Request for Production 

On January 15, 2021, within days of the Court’s dismissal of seven of the nine counts 

asserted in Plaintiff’s complaint (“Compl.,” ECF No. 1), Defendants served their First Set of 

Requests for Production of Documents on Plaintiff (“Defendants’ First RFPs” or the “Requests”, 

Ex. 1).2 The Requests defined “Document” to include both “electronically stored information” 

and “Communications,” including “electronic mail,” “instant-messenger service,” and “socialmedia service.” (Ex. 1 at 3-4.) The Requests, which sought material dating back to 2012, 

encompassed “all Documents subject to [Plaintiff’s] control that are stored . . . on any electronic 

device or computer, on personal computers, personal email accounts, personal cell phones . . ., 

servers . . . and include any Documents stored with cloud technology which are in [Plaintiff’s] 

actual or constructive, possession, custody or control.” (Id. at 5.) The Requests further instructed 

that Plaintiff should provide specified information if responsive Documents were not currently in 

Plaintiff’s possession, custody, or control, or had been lost, deleted, or destroyed. (Id. at 7.) 

2

 Exhibit references are to the Declaration of Steven R. Campbell in Support of Motion for 

Sanctions, dated June 17, 2021, filed contemporaneously herewith. 

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II. Plaintiff Falsely Represents It “Produced All Responsive Documents” 

On March 15, 2021, following a 30-day extension agreed to by Defendants, Plaintiff 

served its Amended Responses to the Requests (“Plaintiff’s R&Os,” Ex. 2). Plaintiff produced 

documents concurrently with service of Plaintiff’s R&Os and stated in response to all 47 requests 

that “Plaintiff has produced all responsive documents currently in its possession, custody and/or 

control.” See generally Ex. 2.3 Plaintiff’s R&Os were signed by one of its counsel from SLG, 

Elad Botwin, and verified under penalty of perjury by Stephan Touizer, the Founder and CEO of 

Plaintiff, to be “true and correct.” (Id. at 25-26.) 

Notwithstanding Plaintiff’s sworn statements that it had “produced all responsive 

documents,” it was immediately apparent that Plaintiff’s production suffered from significant 

deficiencies. For example, with the exception of approximately 21 customer service messages 

(which appeared to have originated from a customer service feature on Plaintiff’s website), 

Plaintiff did not produce a single e-mail or other electronic communication. Nor did Plaintiff 

produce any social media posts, notwithstanding that RFP No. 28, which sought “[a]ll 

Documents concerning any public statements You have made concerning the License 

Agreement, and/or any Defendant,” expressly referenced ten enumerated posts that Plaintiff had 

made on Twitter. (Id. at 18.) And, while Plaintiff believed at the time of production that all 

responsive emails before 2017 were lost, it did not disclose that information to Defendants. 

(6/2/2021 30(b)(6) Tr., Ex. 3, at 71:24-72:6.) 

Defendants raised the “near-total absence of any emails or electronic communications,” 

the lack of social media posts, and numerous other deficiencies in a letter to SLG on March 23, 

2021. (Ex. 4 at 3.) On March 29, 2021, Mr. Botwin responded, representing that, “[w]ith 

respect to emails and electronic communications, Plaintiff has indeed produced everything in 

its possession, custody and control.” (Ex. 5 at 5 (emphasis added).) SLG also claimed for the 

first time that “any emails or electronic communications before approximately 2017 are missing” 

because Mr. Touizer’s e-mails had been “corrupted” during an earlier attempt to back-up his 

e-mails and the data was “lost.” (Id.) As Defendants would later learn—after serving additional 

interrogatories, participating in a discovery conference (in which Plaintiff repeated this claim), 

3

 Plaintiff specified that it was withholding very limited categories of documents, specifically 

certain customer information in response to RFP No. 43, and particular documents on the basis 

of attorney-client privilege in response to RFP Nos. 25 and 46. 

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retaining a forensics expert, and subpoenaing Plaintiff’s e-mail server provider—this was false. 

The purported corruption event had in fact occurred nearly a full year earlier, in the first quarter 

of 2016, and all “sent” e-mails from Mr. Touizer’s account remained available on the server. 

In the same letter, Mr. Botwin further represented that “Plaintiff has nonetheless 

conducted a search of all relevant documents within its network of staff and employees, but there 

are no other responsive documents in terms of electronic communications.” (Ex. 5 at 5 

(emphasis added).) After Defendants again questioned the completeness of Plaintiff’s 

productions, Mr. Botwin, on behalf of Plaintiff, accused Defendants of “speculation” and 

repeated the false representations that additional responsive documents did not exist: 

 “Perhaps the most unfortunate objection that has arisen in the meet and confer 

process is your speculation that documents have been held back by Plaintiff. 

Nothing could be further from the truth.” 

 “Plaintiff is once again assuring you that the documents you believe exist are not 

documents in Plaintiff’s possession, custody or control.” 

 “Your comments about missing documents are merely your own improper 

speculation as compared with our assurance to you that there are no such 

documents. This includes your speculation that ‘there should be responsive 

emails from 2017 to June 2020,’ which conclusion by you is simply incorrect.” 

(Ex. 6 at 2-3.) 

As set forth below, the only things that could not “be further from the truth” were the 

foregoing representations and Plaintiff’s and SLG’s “assurance to [Defendants] that there are no 

such documents.” In fact, at the time Plaintiff’s counsel made these representations, Plaintiff 

possessed (at least) hundreds of responsive emails, as well as responsive electronic 

communications in the form of Slack messages that Plaintiff had not bothered to search, 

notwithstanding that, since 2014, Slack has been—according to Mr. Touizer’s sworn 

testimony—Plaintiff’s “primary method” of business communication. (Ex. 3 at 61:25-62:6, 

151:19-152:4, 154:4-12, 343:22-25.) 

III. Plaintiff Makes Misrepresentations During the April 15, 2021 Hearing 

 On April 15, 2021, a telephonic discovery hearing was held before Judge Torres (the 

“April 15 Hearing”). During the April 15 Hearing, counsel from SLG, Gustavo Lage, told the 

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Court that there were no additional e-mails beyond those that had been produced (the 21 

customer service messages): 

THE COURT: [D]id you verify that you weren’t able to locate any email from 

Mr. Touizer prior to 2017? 

MR. LAGE: We were not. We were not. 

. . . 

THE COURT: Okay. And then what about email communications with other 

people who worked for him. 

MR. LAGE: Your Honor, everything prior to that date is gone. . . . 

. . . 

THE COURT: So you’re saying that there were no intercompany emails that 

related to this case in 2017 through 2020? 

MR. LAGE: To our knowledge, no, your Honor. 

THE COURT: That’s a little hard to believe, no? 

MR. LAGE: Judge, I understand the Court and why your Honor has these 

concerns. But I can only tell you what I’ve seen and what I’m also told by my 

client. . . . That’s something that they can put in front of the Court later on after 

discovery is complete and we’re in front of a jury, if we get in front of a jury. . . . 

THE COURT: Well, actually, no. If we – we may not get that far if I don’t 

believe it’s plausible. You’ll never see the trier of fact if I think it’s implausible 

or if I think that there’s some hanky panky going on. So first you have to satisfy 

me. And so based on your responses, I’m not satisfied. Let’s put it that way. 

(Ex. 7 at 38:12-41:9.) The Court’s skepticism was well-founded. As Defendants would learn 

more than a month later—after continuing to challenge Plaintiff’s representations and serving a 

third-party subpoena on Plaintiff’s e-mail server provider—hundreds of the e-mails in question 

existed, as did hundreds of other responsive documents that had not been produced.4

4

 Mr. Lage also represented to the Court that his associate, Mr. Botwin, “went and met with Mr. 

Touizer and reviewed the computers and went out and accessed the computer system.” (Ex. 7 at 

39:18-23.) Those statements are directly contradicted by Mr. Touizer’s sworn deposition 

testimony. See Ex. 3 at 59:16-19 (“Q. And did your counsel ever come to Canada and help you 

search for documents or look at your computer? A. No, not physically, no.”). 

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During the April 15 Hearing, Defendants also raised their concern that Plaintiff had not 

produced any social media posts despite the fact that Defendants had identified and referenced 

ten specific responsive Twitter posts in RFP No. 28. Mr. Lage represented that there were no 

other documents responsive to RFP No. 28, which led to the following exchange: 

THE COURT: And are you saying – is [your client] going to say under oath that 

other than the ones that Defendants have identified, there are no other messages 

that are relevant to this license agreement of the Defendant? 

MR. LAGE: That is what our client has informed us of. 

. . . 

THE COURT: . . . I’ll stand on your representation that there’s nothing else. 

But then if they find other things, it’s just another fodder for impeachment of 

your client, and on a Rule 37 issue. So I just want to make sure that you feel that 

you’re comfortable with that answer. 

MR. LAGE: I am your Honor. But, you know, in an abundance of caution, at the 

Court’s instruction, I will address it with my client once again. 

(Ex. 7 at 52:12-53:9 (emphasis added).) Despite Mr. Lage’s representation to the Court, more 

than 6 weeks passed and Plaintiff still failed to produce any documents responsive to RFP No. 

28. It was not until June 6—following a hearing two days earlier in which Defendants disclosed 

to the Court that they had identified numerous additional social media posts and intended to 

move for sanctions—that Plaintiff finally provided Defendants with a list identifying links to 28 

Twitter posts responsive to RFP No. 28. (Ex. 8.) 

IV. Plaintiff Makes Misrepresentations in Its Verified Interrogatory Responses 

On May 7, 2021, Plaintiff served its Responses to Defendant Millionaire Media’s First 

Set of Interrogatories (“Plaintiff’s Interrogatory Responses,” Ex. 9), which were focused on 

issues related to Plaintiff’s preservation, collection, and production of documents. Like 

Plaintiff’s R&Os, Plaintiff’s Interrogatory Responses were signed by Mr. Botwin and verified 

under penalty of perjury by Mr. Touizer. (Ex. 9 at 14-16.) Plaintiff’s Interrogatory Responses 

included multiple false statements about the completeness of Plaintiff’s document productions, 

including in response to Interrogatory No. 6: 

Plaintiff has searched for any devices that may contain computer-based 

information . . . . [T]he computer-based information already turned over in 

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discovery represents all possible responsive computer-based information in 

Plaintiff’s possession, custody, and control. 

(Id. at 12 (emphasis added).) And, in response to Interrogatory No. 8, which asked Plaintiff to 

“[i]dentify and describe all efforts You took to search for ESI that was responsive to one or more 

of the requests set forth in Defendants’ First RFPs,” Plaintiff responded: 

Plaintiff undertook extremely intensive ESI searches in order to respond to the 

First RFPs by looking through all relevant devices, servers and cloud locations

as set forth in detail above . . . . Other than the very significant informational 

production effectuated thus far, Plaintiff is unaware of any additional computerbased information of any kind in its possession, custody and control that is 

responsive to the outstanding requests made by the Defendants. 

(Id. at 14 (emphasis added).) These statements were false. At the time they were made, Plaintiff 

knew that it had not searched Slack, its “primary method” of business communication. In 

addition, at the time Plaintiff’s Interrogatory Responses were served, hundreds of responsive 

e-mails that had not been produced were available to Plaintiff on the server. Despite this, on 

May 10, Mr. Botwin again falsely represented that there were no responsive e-mails: 

We do not understand your claim of deficiencies. Plaintiff’s business is 

comprised of a few employees who communicate regarding their core business. 

The relationship with your clients was not a core business item and did not 

merit anything other than non-email discussions. You may not like that but it is 

true. Your desire to speculate about the way three human beings do business is 

interesting but irrelevant to this case. There are no responsive emails. You have 

not carefully read our responses to these interrogatories. 

(Ex. 10 at 2-3 (5/10/21 7:00 PM e-mail from Mr. Botwin) (emphasis added).) 

V. Plaintiff’s Eleventh Hour Production of Documents that Were Due on March 15 and 

That Plaintiff and its Counsel Repeatedly Represented Did Not Exist 

On May 12, 2021, in light of the implausibility of Plaintiff’s repeated representations to 

Defendants—and to the Court—that there were no additional responsive documents, Defendants, 

at the suggestion of their e-mail forensics expert, served a third-party subpoena on Plaintiff’s 

e-mail server provider, Rackspace U.S., Inc. (“Rackspace”) (the “Rackspace Subpoena,” Ex. 11). 

Remarkably, within three days of service, Plaintiff’s counsel notified Defendants that certain of 

the purportedly missing e-mails had been located and suggested that there might be no need for a 

special 30(b)(6) deposition. (Ex. 12 at 1 (“[M]y understanding is that Rackspace has recovered 

some existing e-mails in one of the folders . . . . There would be no need to even proceed with 

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any such deposition if Rackspace’s efforts have resolved the problem.”).) On May 20, Plaintiff 

produced hundreds of emails—more than 220 of which were from Mr. Touizer’s account that 

had purportedly been corrupted, along with hundreds of additional e-mails from the customer 

service accounts from which Plaintiff had claimed to have completed production on March 15. 

(Ex. 3 at 307:5-11.) 

Then, on the night of May 27, 2021—less than a week before the special 30(b)(6) 

deposition (discussed below)—Plaintiff, out of the blue, produced 70 documents containing 

messages from Plaintiff’s Slack account. To date, Plaintiff does not appear to have produced any 

Slack messages between February 17, 2016 and June 19, 2018. The absence of electronic 

communications from this critical period, when Plaintiff was allegedly investigating its claims, 

(Compl. at ¶¶ 33-36), is extremely concerning, particularly in light of Mr. Touizer’s testimony 

that his Slack messaging “really picked up in ’16 when [Plaintiff’s business] went remote.” (Ex. 

3 at 157:23-158:3.) 

VI. The Special 30(b)(6) Deposition Further Exposes Plaintiff’s Misconduct 

On June 2, 2021, Defendants conducted a special 30(b)(6) deposition of Plaintiff 

covering topics related to Plaintiff’s document preservation efforts and productions in which Mr. 

Touizer testified as Plaintiff’s corporate representative. This deposition clearly revealed the 

extent to which Plaintiff had failed to comply with its discovery obligations, and the extent to 

which Plaintiff’s counsel failed to exercise any oversight of the process. 

A. Plaintiff’s Failure to Preserve Relevant Information 

On January 13, 2017, in response to a Tweet, Plaintiff publicly announced its intention to 

commence this lawsuit. Asked “When do you plan to sue @StocksToTrade for copying your 

software?,” Mr. Touizer responded from Plaintiff’s Twitter account, “Already in the works,” 

demonstrating that Plaintiff had contemplated litigation with Defendants since at least that time 

and had a duty to retain relevant information. (ECF No. 42-5.) Although Mr. Touizer provided 

vague and general assurances during his testimony that “careful attention” had “always” been 

paid through his “diligent attention” to preserving documents, (Ex. 3 at 374:3-375:14), the 

record—including the rest of his testimony—demonstrates otherwise. Plaintiff does not have a 

document retention policy, (id. at 372:21-373:5), and as far as Mr. Touizer knows—including to 

this day—his e-mail has employed a “POP3 protocol format” that results in his e-mail being 

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automatically deleted from the server “every several days.” See Ex. 9 at 6-8 & Fig. 1 (describing 

POP3 and showing current settings); see also Ex. 3 at 249:14-253:5 (testifying regarding same). 

This is a setting that Mr. Touizer, himself, selected. See Ex. 9 at 6 (“When he set up the Foxmail 

System, Mr. Touizer chose POP3.”); see also Ex. 3 at 248:16-19 (“Q. When you set up the EM 

Client on your 2016 laptop, you chose POP3 again, correct? A. I believe it was set up again with 

POP3, yes.”) Mr. Touizer also testified that he has “definitely” deleted messages on Slack and, 

indeed, that “realtime deletion . . . is one of the innovative things Slack gives you that users 

really like.” (Ex. 3 at 229:7-25.) 

Likewise, neither of Plaintiff’s only two other employees were informed of a duty to 

preserve documents. During his June 11, 2021 deposition, Ashot Temouriants (Plaintiff’s Chief 

Technology Officer) testified that he had never been told that he had a duty to preserve 

documents related to this litigation (which was filed in July 2020), that he deletes e-mails 

“[e]very day,” and that it was “quite possible” he had deleted e-mails related to StocksToTrade. 

(Ex. 13 at 47:9-19; see also id. at 92:16-93:3 

And Mikhail Seleznev (Plaintiff’s Head Java Architect) 

 (Ex. 14 at 

20:13-14, 21:3-15.) 

B. Mr. Touizer Led Plaintiff’s Search Efforts 

Plaintiff’s efforts to search for documents responsive to Defendants’ First RFPs was led 

by Mr. Touizer himself. (Ex. 3 at 27:18-20, 296:16-18.) Mr. Touizer is not a lawyer and does 

not recall having ever read any of the Federal Rules of Civil Procedure. (Id. at 18:13-19:2.) Mr. 

Touizer is also “no e-mail expert.” (Id. at 241:17.) Until this matter, Plaintiff, which is a 

Canadian (Quebec) Corporation, had never been a party to a U.S. court proceeding, nor does 

Plaintiff employ anyone with a law degree. (Id. at 18:4-12, 19:3-6.) Despite all this, Plaintiff did 

not engage a third-party vendor to assist in the search or collection of documents. (Id. at 59:5-

15.) In fact, aside from Mr. Touizer and Plaintiff’s two other employees, nobody—including 

Plaintiff’s counsel—was involved in Plaintiff’s search for responsive documents. (Id. (“Q. 

Besides from you, Mr. Temoureants, and Mr. Seleznev, was anyone else involved in Scanz’s 

efforts to search for responsive documents between January 15 and March 15? A. No. Q. What 

about after March 15? A. No, not that I believe.”); see also id. at 296:2-22 (testifying that Mr. 

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11 

Touizer “was leading the search” and agreeing that nobody besides Messrs. Touizer, 

Temouriants and Seleznev “was involved in the search and collection of documents on behalf of 

Scanz”). 

C. Plaintiff’s Deficient Search for Responsive E-mails 

Mr. Touizer was personally responsible for searching two of his e-mail accounts—

stephan@equityfeed.com and stephan@scanz.com. (Ex. 3 at 22:16-25.) To do so, Mr. Touizer 

assembled a “list of search terms,” but—despite being Plaintiff’s designated 30(b)(6) witness on 

the topic—could neither recall them in their entirety nor even recall whether he had looked at 

Defendants’ First RFPs when he created the terms. (Id. at 40:22-25, 41:13-23, 329:13-330:18.) 

Mr. Touizer testified that, after he applied these terms to his e-mail accounts, he alone made 

relevance determinations, based on his “own intelligence.” (Id. at 298:5-299:6.) In addition, Mr. 

Touizer was solely responsible for interfacing with Rackspace to investigate whether any of his 

purportedly lost e-mails could be recovered from the server. (Id. at 253:15-254:8 (“Q. Did 

anyone assist you in that [Rackspace] investigation or was it just you investigating? A. It was 

just me.”).) Based on his inquiry, Mr. Touizer incorrectly concluded that additional e-mails did 

not exist, notwithstanding that it was apparent from the information readily available to Mr. 

Touizer that the account contained 1.1GB of data, (id. at 275:9-21), a volume that he 

unequivocally agreed would comprise more than just the few days’ worth of e-mails that Plaintiff 

had represented to Defendants was all that existed. (Id. at 217:8-11 (Q. “Well, would you agree 

that . . . anything over 1 gigabytes would be more than several days’ worth of e-mail? A. That’s 

definite.”).) 

Mr. Touizer also testified that, prior to March 15 (the date of Plaintiff’s initial document 

production), he conveyed the search terms he created to Plaintiff’s two other employees and 

directed them to search their own e-mails and make their own determinations—based on 

instructions from Mr. Touizer—as to whether e-mails that hit on a search term were relevant to 

this case. (Ex. 3 at 29:20-30:7, 34:12-35:11.) This testimony is belied by Mr. Seleznev’s June 4 

testimony that 

Case 1:20-cv-22957-RNS Document 145 Entered on FLSD Docket 06/17/2021 Page 15 of 26
12 

 (Ex. 14, at 15:13-16, 17:10-19, 18:2-17, 

19:23-20:2.)5 

Mr. Touizer also stated multiple times under oath that Mr. Temouriants did not find 

relevant e-mails, (Ex. 3 at 29:11-19, 35:12-36:5), yet Mr. Temouriants testified that he had 

notified Mr. Touizer both in early 2021 and, again, at the end of May that he had identified 

e-mail hits after searching his computer, but had never been asked to provide the results of the 

search to Mr. Touizer. (Ex. 13 at 45:5-47:3.) Of course, Mr. Temouriants did have responsive emails and, less than 24 hours after Mr. Touizer testified there were none, Plaintiff produced an 

additional 150 documents, including dozens of e-mails from Mr. Temouriants’ account. Also 

included in that production were dozens of e-mails from an additional e-mail account used by 

Mr. Touizer—ceo@equityfeed.com—that he had testified the day before had not been searched. 

(Ex. 3 at 221:3-222:8.) Based on information obtained during the special 30(b)(6) deposition, 

Defendants requested that Plaintiff run additional searches on specified e-mail accounts, which 

resulted in the production of at least 65 new e-mails on the night of June 10.6 

D. Plaintiff’s Failure to Search for Slack Messages and Inexplicable 

Withholding of Highly Relevant Information 

Prior to making its March 15 production, Plaintiff did not search for responsive 

communications on Slack, which Mr. Touizer has been using “as [his] primary method of 

business communication since [he] adopted it in 2014.” (Ex. 3 at 343:22-25; see also id. at 

336:20-25 (Plaintiff did not search for Slack communications prior to March 15 because Mr. 

Touizer was “not aware that was a requirement”); id. at 61:25-62:6 (similar).) It was not until 

more than two months later, on the eve of the special 30(b)(6) deposition, that Plaintiff made a 

belated production of Slack messages. This, too, was incomplete. Slack is “the primary method 

5

 Incredibly, Mr. Touizer also claimed to not recall whether he had sent Mr. Seleznev the search 

terms in writing, (Ex. 3 at 41:24-42:2), 

 (Ex. 14 at 18:2-19:18.) Plaintiff never produced these Slack messages, 

so Defendants still do not know what search terms Plaintiff used. 

6

 This production followed the false representation, made a mere six days earlier by Raul 

Reichard, counsel from another one of the law firms representing Plaintiff, that, “as stated earlier 

today, the end result is that all documents have been produced . . . .” (Ex. 15 at 1). While Mr. 

Reichard also made misrepresentations regarding Plaintiff’s discovery compliance, he did not 

certify false discovery responses, and Defendants do not seek sanctions against Mr. Reichard or 

his firm in this Motion. 

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13 

of electronic communication between Scanz employees” and contractors, (id. at 154:4-12), yet 

the direct messages of Plaintiff’s other employees were not searched. (Id. at 231:12-232:4; Ex. 

14 at 24:13-16, 139:3-140:7 

 Ex. 13 at 

64:24-65:3 

. 

Plaintiff finally produced direct Slack messages between Mr. Seleznev and Mr. 

Temouriants on the night of June 10, the night before Mr. Temouriants’ deposition. Also 

included in the production—which also contained 175 e-mails plus various videos and 

PowerPoint presentations—was a more complete version of a Slack communication discussed at 

the special 30(b)(6) deposition which exposed, as Defendants suspected, that Plaintiff had 

previously withheld highly relevant information damaging to its case. Specifically, during the 

special 30(b)(6) deposition, Mr. Touizer was questioned about whether the produced messages 

were “cut off,” which they obviously were because every other conversation that had been 

produced had a picture of the sender at the top, but this particular one did not. (Ex. 3 at 340:13-

344:17.) Mr. Touizer suggested he may have “cut off the picture and name” in order to capture 

the date of the message, but testified that he otherwise believed “that was the beginning of the 

message” and “to the best of [his] recollection, that that is where the conversation started.” Id. It 

was not. As the production on the night of June 10 exposed, 

Compare Exs. 16 and 17. 

This information is highly relevant because it demonstrates 

 which directly undermines Plaintiff’s only two remaining claims for 

misappropriation of trade secrets. Given that these messages were clearly reviewed by Mr. 

Touizer—as evidenced by the prior production of a portion of the conversation—there is no 

explanation for the failure to produce the conversation in its entirety other than a desire to 

withhold this extremely damaging information, which Plaintiff only disclosed after similar 

information had been elicited in Mr. Seleznev’s deposition testimony and with the knowledge 

that Mr. Temouriants would likely be questioned about the same document and confirm that it 

Case 1:20-cv-22957-RNS Document 145 Entered on FLSD Docket 06/17/2021 Page 17 of 26
14 

was not complete. There is also reason to believe that other highly relevant Slack messages still 

have not been produced. For example, Plaintiff alleged in its Complaint that it conducted an 

investigation into Defendants’ alleged misappropriation of trade secrets during the period from 

2017 to May 2018, (Compl. at ¶¶ 33-36), yet Plaintiff does not appear to have produced any 

Slack messages from the period February 17, 2016 through June 19, 2018. 

E. Plaintiff’s Failure to Search for Responsive Videos 

Mr. Touizer also did not recall asking anyone else to search for responsive videos and 

could not say whether he had done so himself, (30(b)(6) Tr. at 314:16-315:4), even though he 

“make[s] a lot of videos” and his “people make videos . . . as a communications tool.” Id. at 

314:6-10. 

ARGUMENT 

I. Sanctions Must Be Imposed on Plaintiff and SLG Pursuant to Rule 26(g) and 28 

U.S.C. § 1927 

SLG disregarded its obligations as counsel of record in violation of Federal Rule of Civil 

Procedure 26(g) by certifying Plaintiff’s repeatedly false discovery responses. Sanctions for 

such violations are mandatory and should be assessed against both Plaintiff and SLG. Rule 26 

requires that “[e]very disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, 

response, or objection must be signed by at least one attorney of record in the attorney’s own 

name.” Fed. R. Civ. P. 26(g). The Rule “prescribes that the signature certifies that the filing 

conforms to the discovery rules, is made for a proper purpose, and does not impose undue 

burdens on the opposing party in light of the circumstances of the case.” Bernal v. All Am. Inv. 

Realty, Inc., 479 F. Supp. 2d 1291, 1333 (S.D. Fla. 2006). “Rule 26(g) broadly ‘imposes an 

affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with 

the spirit and purposes of Rules 26 through 37,’” In re Delta/AirTran Baggage Fee Antitrust 

Litig., 846 F. Supp. 2d 1335, 1350 (N.D. Ga. 2012) (citation omitted), and “imposes upon 

attorneys the duty to make a reasonable investigation to assure that their clients have provided all 

available responsive information and documents.” Bernal, 479 F. Supp. 2d at 1333 (citation 

omitted); see also EEOC v. M1 5100 Corp., No. 19-cv-81320, 2020 U.S. Dist. LEXIS 117243, at 

*6-8 (S.D. Fla. July 2, 2020) (“An attorney’s signature on a discovery response is not a mere 

Case 1:20-cv-22957-RNS Document 145 Entered on FLSD Docket 06/17/2021 Page 18 of 26
15 

formality; rather, it is a representation to the Court that the discovery is complete and correct at 

the time it is made.”).7 

Where an attorney has failed to satisfy the requirements of Rule 26(g) without substantial 

justification, “the court, on motion or on its own, must impose an appropriate sanction on the 

signer, the party on whose behalf the signer was acting, or both.” Fed. R. Civ. P. 26(g)(3) 

(emphasis added); see also Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1372 (11th Cir. 

1997) (“The decision whether to impose sanctions under Rule 26(g)(3) is not discretionary. Once 

the court makes the factual determination that a discovery filing was signed in violation of the 

rule, it must impose ‘an appropriate sanction.’”). Under Rule 26(g), “the sanction may include 

an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.” Fed. 

R. Civ. P. 26(g)(3). “[T]he party who is alleged to have failed to comply with Rule 26 bears the 

burden to show that its actions were substantially justified or harmless.” Prior v. State Farm 

Fire & Cas. Co., No. 8:11-cv-01448-T-27TBM, 2013 U.S. Dist. LEXIS 196029, at *2 (M.D. Fla. 

Feb. 7, 2013) (citation omitted). 

SLG’s sanctionable conduct includes its certification of Plaintiff’s R&Os, which stated in 

response to each request that “Plaintiff has produced all responsive documents currently in its 

possession, custody and/or control.” (Ex. 2.) At the time that certification was made, Plaintiff 

had (among other failures) not searched multiple e-mail accounts that contained responsive 

communications, not produced all responsive e-mails from the e-mail accounts Plaintiff did 

search, and failed to search its Slack account, which has been Plaintiff’s “primary method” of 

business communication since 2014. As evidenced by numerous supplemental productions made 

months later, Plaintiff had not come anywhere close to producing all responsive documents in its 

possession, custody, and control, and the false certifications to the contrary constitute 

sanctionable conduct under Rule 26(g). See, e.g., Venator v. Interstate Res., Inc., No. CV415-

7 Accord Legault v. Zambarano, 105 F.3d 24, 28 (1st Cir. 1997) (“[A] certifying lawyer must 

make ‘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.’”) (citation omitted); 

Tradeshift, Inc. v. BuyerQuest, Inc., No. 20-cv-01294-RS (TSH), 2021 U.S. Dist. LEXIS 78658, 

at *8 (N.D. Cal. Apr. 23, 2021) (“Rule 26(g) places not only on the parties but also specifically 

on counsel an obligation to certify that a document production is complete.”); Johnson v. BAE 

Sys., 4 F. Supp. 3d 62, 68 (D.D.C. 2013) (“An attorney or party has a duty, per Rule 26(g), to 

perform a reasonable inquiry to determine whether a discovery response is complete and 

accurate.”). 

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086, 2016 U.S. Dist. LEXIS 50964, at *26 (S.D. Ga. Apr. 15, 2016) (imposing monetary 

sanctions on counsel and plaintiff under Rule 26(g) where counsel certified disclosures were 

complete, but “Defendants’ original document production was, . . . as their supplemental email 

production illustrates, not ‘complete and correct.’”); accord R & R Sails, Inc. v. Ins. Co. of State 

of Pa., 251 F.R.D. 520, 525 (S.D. Cal. 2008) (finding party liable for sanctions pursuant to Rule 

26(g) where subsequent production of responsive information “demonstrate[d] that Defendant 

had made incorrect certifications to Plaintiff – as well as representations to the Court – that 

Defendant’s production of discovery was complete.”). 

SLG is also subject to sanctions for certifying Plaintiff’s Interrogatory Responses, which 

falsely stated, inter alia, that “the computer-based information already turned over in discovery 

represents all possible responsive computer-based information in Plaintiff’s possession, custody, 

and control.” (Ex. 9 at 12.) SLG’s certification of Plaintiff’s false statements in the 

Interrogatory Responses constitutes a particularly egregious violation of Rule 26(g) because it 

was made after SLG was put on repeated notice of Plaintiff’s production deficiencies, and after 

being cautioned by the Court that the purported lack of responsive emails was “a little hard to 

believe.” (Ex. 7 at 40:16-20; see also, e.g., Bernal, 479 F. Supp. 2d at 1334 (finding that 

attorney failed to “satisfy his Rule 26(g) obligations when he signed his client’s numerous false 

[discovery responses]” notwithstanding that they were “highly improbable” and that, in failing to 

“immediately challenge[]” the client the attorney “demonstrated a flagrant disregard of his 

obligations as counsel of record.”). Indeed, despite the Court’s skepticism and the implausibility 

of Plaintiff’s claim that there were no additional responsive documents, rather than conduct any 

investigation to confirm its representations, SLG simply relied on Plaintiff’s employees—who 

had no prior experience with U.S. litigation or discovery and are obviously self-interested in the 

outcome of this case—to conduct the searches for responsive ESI. See Ex. 9 at 14 (explaining 

that Plaintiff’s discovery process “was effectuated through searches implemented primarily by 

Stephan Touizer and also by Ashot Temouriants”); Ex. 3 at 59:5-11 (confirming that nobody but 

Scanz employees was involved in the search for responsive documents), 253:15-254:8 (same 

with respect to investigation of missing e-mails with Rackspace). 

Courts in this Circuit consistently recognize that SLG’s conduct runs afoul of Rule 

26(g)’s requirements: 

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[A]n attorney cannot abandon his professional and ethical duties imposed by the 

applicable rules and case law and permit an interested party or person to ‘selfcollect’ discovery without any attorney advice, supervision, or knowledge of the 

process utilized. There is simply no responsible way that an attorney can 

effectively make the representations required under Rule 26(g)(1) and yet have 

no involvement in, or close knowledge of, the party’s search, collection and 

production of discovery . . . . 

M1 5100 Corp., 2020 U.S. Dist. LEXIS 117243, at *6-8 (emphasis added); Bernal, 479 F. Supp. 

2d at 1334 (recommending Rule 26(g) sanctions because attorney did not “make a reasonable 

investigation to assure that his clients had provided all available responsive information”); In re 

Delta/AirTran Baggage Fee Antitrust Litig., 846 F. Supp. 2d at 1351-53 (N.D. Ga. 2012) 

(holding that “sanctions under Rule 26(g) are appropriate for [party’s] failure to ensure that all 

collected hard drives were actually searched . . . and for its myriad inaccurate representations” 

and requiring party “to pay reasonable expenses, including attorneys’ fees, caused by its 

violation”); Venator, 2016 U.S. Dist. LEXIS 50964, at *34 (finding Rule 26(g) violation where 

counsel “failed to oversee . . . electronic records searches and ensure that . . . all . . . e-mails in 

[client’s] possession” were provided). There is no justification for SLG’s abdication of its 

obligations under the Federal Rules, which resulted in Defendants incurring substantial expense 

to obtain basic discovery months after it was due and months after SLG was on notice of the 

issue.8

8

 For similar reasons, relief is appropriate under 28 U.S.C. § 1927, which provides that “[a]ny 

attorney or other person admitted to conduct cases in any court of the United States or any 

Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously 

may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees 

reasonably incurred because of such conduct.” The statute allows the court to “assess attorney’s 

fees against litigants, counsel, and law firms who willfully abuse the judicial process by conduct 

tantamount to bad faith.” Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1544 (11th Cir. 1993). 

To impose sanctions under § 1927, there is no requirement that an attorney must have acted 

“knowingly and malevolently”; rather, “the standard for imposing sanctions under § 1927 turns 

on the attorney’s objective conduct as compared to how a reasonable attorney would have acted 

under the circumstances.” Taverna Imps., Inc. v. A&M Wine & Spirits, Inc., No. 15-24198-CIV, 

2018 U.S. Dist. LEXIS 125906, at *25 (S.D. Fla. July 27, 2018) (citing Norelus v. Denny’s, Inc., 

628 F.3d 1270, 1282 (11th Cir. 2010)). An award of fees and expenses incurred by Defendants 

in connection with their otherwise unnecessary efforts to unravel Plaintiff’s and SLG’s 

misrepresentations and obtain basic discovery is appropriate under § 1927. See, e.g., Bernal, 479 

F. Supp. 2d at 1332 (recommending that attorney personally satisfy resulting costs from “series 

of [events] . . . that otherwise never would have been necessary” but for attorney’s recklessness 

“when he relied solely on the word of his client before filing” a false affidavit). 

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18 

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

Plaintiff violated Rule 37 by failing to timely supplement its document productions 

despite being put on repeated notice of their incompleteness by Defendants. Appropriate 

sanctions under Rule 37(c) to remediate the prejudice suffered by Defendants should include 

ordering Plaintiff to reimburse Defendants’ resulting fees and expenses. Under Rule 37, “[i]f a 

party fails to provide information or identify a witness as required by Rule 26(a) or (e),” it may 

be subject to sanctions “unless the failure was substantially justified or is harmless.” Fed. R. 

Civ. P. 37(c)(1). Rule 26(e) requires a party “who has responded to an interrogatory, request for 

production, or request for admission” to “supplement or correct its disclosure or response: (A) in 

a timely manner if the party learns that in some material respect the disclosure or response is 

incomplete or incorrect . . .; or (B) as ordered by the court.” If timely and proper disclosure is 

not made, “[t]he burden of establishing that a failure to disclose was substantially justified or 

harmless rests on the nondisclosing party.” Mitchell v. Ford Motor Co., 318 F. App’x 821, 824 

(11th Cir. 2009) (citation omitted). “Rule 37 sanctions are imposed not only to prevent unfair 

prejudice to the litigants but also to insure the integrity of the discovery process.” Aztec Steel 

Co. v. Fla. Steel Corp., 691 F.2d 480, 482 (11th Cir. 1982). 

In addition to other relief, Rule 37(c)(1) authorizes the court, on motion and after giving 

an opportunity to be heard, to “(A) [] order payment of the reasonable expenses, including 

attorney’s fees, caused by the failure; (B) [] inform the jury of the party’s failure; and (C) [] 

impose other appropriate sanctions” including dismissal of the action. Fed. R. Civ. P. 37(c)(1); 

Fed. R. Civ. P. 37(b)(2)(A)(v), (vi); see also Shortz v. City of Tuskegee, 352 F. App’x 355, 359 

(11th Cir. 2009) (holding that dismissal under Rule 37 “may be appropriate when a plaintiff’s 

recalcitrance is due to wilfulness, bad faith or fault” and is “not an abuse of discretion when a 

party demonstrates a flagrant disregard for the court and the discovery process”) (internal 

quotations and citations omitted).

Despite being repeatedly notified by Defendants that Plaintiff’s March 15 production was 

obviously incomplete, Plaintiff made repeated misrepresentations—including under oath—to 

both Defendants and the Court that it had produced all responsive documents. It was not until 

the end of May, shortly before the close of fact discovery, that Plaintiff began producing 

hundreds of e-mails and Slack messages that it had repeatedly (and in the strongest possible 

terms) denied existed, and not until June—after Defendant disclosed its intent to move for 

Case 1:20-cv-22957-RNS Document 145 Entered on FLSD Docket 06/17/2021 Page 22 of 26
19 

sanctions—that Plaintiff finally identified documents responsive to RFP No. 28. As a result, 

Defendants needed to review hundreds of documents on the eve of multiple important 

depositions. 

Plaintiff’s misconduct here closely mirrors that in U & I Corp. v. Advanced Med. Design, 

Inc. (hereinafter “AMD”), in which the court imposed Rule 37 sanctions in light of the 

“unnecessary expense and delays” incurred by defendant “in attempting to obtain [plaintiff’s] 

compliance with legitimate discovery requests.” 251 F.R.D. 667, 675-77 (M.D. Fla. 2008). In 

both AMD and this matter, the misconduct at issue includes (1) plaintiff’s inaccurate assertion 

“that it had fully responded” to document requests, which was followed by additional “sporadic 

and incomplete” document productions; (2) plaintiff’s failure to inform defendant that certain 

potentially responsive emails were not available “when it initially responded to [defendant’s] 

document request”; and (3) plaintiff’s “perplexing . . . failure to produce any responsive internal 

documents between [plaintiff’s] employees” coupled with an “assertion that it ha[d] produced all 

requested information.” (Id. at 675.) In imposing sanctions under Rule 37—including an award 

of fees and costs and inspection of certain document sources—the court observed that “[i]t is not 

the court’s role, nor that of opposing counsel, to drag a party kicking and screaming through the 

discovery process.” (Id. at 676.) The court further stated that “a lack of understanding of the 

American legal system does not excuse [plaintiff’s] tardy and incomplete responses” and that, as 

the party that filed the lawsuit, “[plaintiff] and its counsel had the responsibility [at the outset of 

the litigation] to take affirmative steps to ensure that all sources of discoverable information were 

identified, searched, and reviewed so that complete and timely responses to discovery requests 

could be provided.” (Id. at 675-76.) 

Here, as in AMD, Plaintiff and SLG have disregarded their responsibilities under the 

Federal Rules and the Court should impose sanctions to remediate the resulting prejudice to 

Defendants and deter future misconduct by Plaintiff. See, e.g., AMD, 251 F.R.D. at 676 

(monetary sanctions “are both appropriate and necessary to compensate [defendant] for its 

expense and to deter [plaintiff] from future discovery violations”); Jaffe v. Bank of Am., N.A., 

No. 07-21093, 2008 U.S. Dist. LEXIS 128557, at *8 (S.D. Fla. Apr. 29, 2008) (imposing 

sanctions under Rule 37(c)(1) and observing that “[w]hen a party answers a request by stating 

that the requested documents do not exist, the other party is, at some point, entitled to rely on 

that statement”); In re Delta/AirTran Baggage Fee Antitrust Litig., 846 F. Supp. 2d at 1359 

Case 1:20-cv-22957-RNS Document 145 Entered on FLSD Docket 06/17/2021 Page 23 of 26
20 

(awarding monetary sanctions under Rule 37(c)(1) where party “made myriad misrepresentations 

to the Court and Plaintiffs that its document production was complete, and it waited almost two 

weeks to inform the Court of the problems with its document production”); Dragon Jade Int’l, 

Ltd. v. Ultroid, LLC, No. 8:17-cv-2422-T-27CPT, 2019 U.S. Dist. LEXIS 196144, at *11 (M.D. 

Fla. Nov. 12, 2019) (finding Rule 37(c)(1) sanctions appropriate in light of “eleventh hour” 

disclosure of responsive document months after initial responses to discovery requests and less 

than a week before the close of discovery). 

Though not Defendants’ burden, Plaintiff’s failure to comply with its discovery 

obligations was neither harmless nor justified. Defendants have been forced to divert an 

enormous amount of time and resources—which could otherwise have been spent on substantive 

matters related to this litigation—to exposing Plaintiff’s lies, and have incurred substantial 

“unnecessary expense” to obtain discovery to which Defendants were clearly entitled. AMD, 

251 F.R.D. at 675. But for this money, time and effort, Plaintiff and its counsel would have 

stood by their “myriad misrepresentations” to Defendants and the Court and would never have 

produced documents that are not only relevant but critical to this case. In re Delta/AirTran 

Baggage Fee Antitrust Litig., 846 F. Supp. 2d at 1359. Defendants should “at the very least” be 

awarded their reasonable fees and expenses incurred as a result of Plaintiff’s repeated 

misrepresentations and failure to timely supplement and correct their inaccurate disclosures. 

Travelers Ins. Co. v. Commercial Cool-Temp Corp., No. 11-61748-DIMITROULEAS/S, 2012 

U.S. Dist. LEXIS 201783, at *30 (S.D. Fla. Sep. 5, 2012) (“Implicit in Fed. R. Civ. P. 37 is the 

recognition that in cases of discovery abuse, the non-offending party should at the very least be 

compensated by the non-complying party and/or its counsel, if circumstances warrant, for the 

added expenses caused by the violation.”). 

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, 

particularly in light of Plaintiff’s counsel’s misrepresentations to the Court. 

Case 1:20-cv-22957-RNS Document 145 Entered on FLSD Docket 06/17/2021 Page 24 of 26
Local Rule 7.1(a)(3) Certification 

 Pursuant to Local Rule 7.1(a)(3), undersigned counsel certifies that counsel for the 

Defendants have conferred with Plaintiff’s counsel in a good faith effort to resolve the issues 

raised by this motion without Court involvement, but the parties have been unable to reach a 

resolution. 

Dated: June 17, 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)

90 Park Avenue 

New York, New York 10016-1387 

Phone: 212-210-9400 

brett.jaffe@alston.com 

steven.campbell@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 

Case 1:20-cv-22957-RNS Document 145 Entered on FLSD Docket 06/17/2021 Page 25 of 26
200 South Biscayne Boulevard, Suite 4700 

Miami, FL 33131 

Phone: +1 305-577-7000 

raul.manon@squirepb.com 

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 145 Entered on FLSD Docket 06/17/2021 Page 26 of 26