UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CIVIL DIVISION 

DEVIN FILIPPELLI, as Personal 

Representative of the ESTATE OF 

KRYSTAL TALAVERA, on behalf of the 

Estate and her Survivors, 

 Plaintiff, 

v. 

GROW, LLC (d/b/a KD INCORPORATED 

and THE KRATOM DISTRO); and SEAN 

MICHAEL HARDER, individually 

 Defendants. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Civil Action No. 9:22-cv-81731 

DEFENDANTS’ GROW, LLC (d/b/a KD 

INCORPORATED and THE KRATOM 

DISTRO) and SEAN MICHAEL 

HARDER’S RESPONSE TO 

PLAINTIFF’S MOTION TO COMPEL 

DEFENDANTS TO PRODUCE 

INITIAL DISCLOSURES PURSUANT 

TO RULE 26

Defendants, GROW, LLC (hereinafter “Grow”) and SEAN MICHAEL HARDER 

(hereinafter “Harder”) (collectively referred to as “Defendants”) provide the following response 

to the Motion to Compel Defendants to Produce Initial Disclosures Pursuant to Rule 26 (“Motion 

to Compel”) [DE 23] filed herein by Plaintiff, DEVIN FILIPPELLI as Personal Representative 

of the ESTATE OF KRYSTAL TALAVERA on behalf of the Estate and her Survivors 

(“Plaintiff”), on January 20, 2023, and state as follow: 

RESPONSE ARGUMENT 

I. DEFENDANT GROW CANNOT BE COMPELLED TO PRODUCE 

INFORMATION IT DOES NOT POSSESS AND WHICH IS NOT WITHIN ITS 

CUSTODY AND CONTROL 

The first issue identified in Plaintiff’s Motion to Compel, as framed by the Plaintiff, is 

whether Grow is “exempt from producing initial disclosures...” Motion to Compel at pp. 3-7. 

However, Plaintiff’s framing of the issue is misleading. The real issue is whether Grow can be 

Case 9:22-cv-81731-DMM Document 27 Entered on FLSD Docket 02/03/2023 Page 1 of 9
2 

compelled to provide documents and responsive information it does not possess. Grow did not 

take the position it is exempt from initial disclosures. See Defendants’ Amended Initial 

Disclosures [DE 20]. Grow provided initial disclosures and the information it currently has in its 

possession, custody or control which relate to the allegations asserted in Plaintiff’s Amended 

Complaint. 

Notwithstanding Plaintiff’s skepticism regarding Grow’s position in this regard, a Court 

simply cannot compel a party to produce documents that it claims it does not have. See e.g., 

Aatrix Software, Inc. v. Green Shades Software, Inc., 3:15-CV-164-J-20MCR, 2019 WL 

11648461, at *6 (M.D. Fla. Nov. 19, 2019) (“[T]he Court cannot compel Plaintiff to produce 

documents that it claims it does not have.”); Thermoset Corp. v. Building Materials Corp. of 

America, No. 4-60268-CIV, 2014 WL 6473232, at *4 (S.D. Fla. Nov. 18, 2014) (“The Court 

agrees that it cannot compel a party to provide information or produce documents that it does not 

have in its possession, custody, or control.”) (citations omitted); Calhoun v. Volusia Cnty., No. 

6:04-cv-106-Orl-31DAB, 2007 WL 1796259, at *1 (M.D. Fla. June 20, 2007) (“[T]he Court 

cannot compel production of documents that do not exist.”).

Here, Grow was formed after Ms. Talavera’s death to operate a brick-and-mortar retail 

store in a mall in Idaho, and was not in the business of selling, distributing, or marketing Kratom 

products. Indeed, Plaintiff’s own exhibit shows that Grow was in the business of “Retail Sales of 

Plants and Pottery” at the Towne Square Mall in Boise, Idaho. See Motion to Compel at Exh. H 

[DE 23]. This is entirely consistent with Grow’s Answer in this case wherein it denied the 

allegations in the Complaint asserting Grow had any connection to this lawsuit or the distribution 

of Kratom products. [See DE 16 at p. 2]. 

Case 9:22-cv-81731-DMM Document 27 Entered on FLSD Docket 02/03/2023 Page 2 of 9
3 

It is especially telling that Plaintiff cites primarily to its own Complaint for the 

proposition that other entities were the fictious name of Grow. Plaintiff has produced no 

document showing “GROW, LLC” communicated with or sent Ms. Talavera anything. Nor has 

Plaintiff produced anything showing that “KD Incorporated” or “Kratom Distro” were registered 

fictious names of Grow. Grow simply has no additional information to disclose because it was a 

separate and distinct business formed after Ms. Talavera’s death. This is also why Grow 

disclosed that it has no insurance to cover it for this loss because it was not in business or

operating at the time of her death. Plaintiff’s reliance on the fact that certain phone numbers and 

addresses relating to these businesses are the same or similar is also misplaced. It is not illegal 

for someone to operate more than one business. The fact that Harder became involved in 

operating a retail pottery business in a mall in Idaho at some point after Ms. Talavera died does 

not give rise to a duty for Grow to provide non-existent documents or information that are not in 

the possession, custody or control of Grow. 

Accordingly, Plaintiff’s Motion to Compel as it relates to Grow should be denied. See 

e.g., Collier HMA Physician Management, LLC & Naples HMA, LLC, v. NCH Helathcare

System, Inc., Naples Community Hospital, Inc. & NCHMD, Inc., 218CV408FTM38MRM, 2020 

WL 13614464, at *7 (M.D. Fla. Aug. 13, 2020) (“It is axiomatic that a party cannot be made to 

produce documents that do not exist. To the extent Defendants’ motion seeks to compel the 

production of documents that Plaintiffs unequivocally state do not exist, the motion must be 

denied.) 

Case 9:22-cv-81731-DMM Document 27 Entered on FLSD Docket 02/03/2023 Page 3 of 9
4 

II. DEFENDANT HARDER CANNOT BE COMPELLED TO PROVIDE 

INFORMATION THAT COULD VIOLATE HIS FIFTH AMENDMENT RIGHT 

AGAINST SELF-INCRIMINATION 

The second issue Plaintiff raises is that Harder should not be allowed to assert his Fifth 

Amendment privilege against self-incrimination. Motion to Compel at pp. 7-14. The Fifth 

Amendment of the United States Constitution provides that a person shall not be compelled to 

witness against himself. U.S. Const. amend. V, cl. 2. This right against self-incrimination “can be 

asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or 

adjudicatory; and it protects against any disclosures which the witness reasonably believes could 

be used in a criminal prosecution or could lead to other evidence that might be used.” Kastigar v. 

United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1980). 

Plaintiff erroneously contends that Harder asserts a blanket privilege against selfincrimination. He did not. For example, Harder disclosed, pursuant to Rule 26(a)(1)(D), that he 

has not located any insurance that would provide a defense or indemnification for this claim. See 

Defendants’ Amended Initial Disclosures [DE 20] at p. 6. It is true that Harder has asserted a 

Fifth Amendment privilege to disclosing some of the names of persons that may have 

discoverable information and the location of relevant documents because he has reasonable cause 

to fear danger of criminal prosecution if he is forced to disclose his alleged knowledge or 

involvement of persons and/or documents related to the sale, distribution and/or marketing of 

Kratom. See In re Folding Carton Antitrust Litigation, 609 F.2d 867, 871 (7th Cir. 1979) (“When 

a witness can demonstrate any possibility of prosecution that is more than fanciful he has 

demonstrated a reasonable fear of prosecution sufficient to meet constitutional muster.”). 

Although Plaintiff claims Harder’s fears against self-incrimination are unfounded, one of 

Plaintiff’s allegations in the instant lawsuit is that Harder violated federal laws that carry 

Case 9:22-cv-81731-DMM Document 27 Entered on FLSD Docket 02/03/2023 Page 4 of 9
5 

criminal penalties, i.e., namely the Federal Food, Drug, and Cosmetic Act (“FDCA”) and the 

Dietary Supplement Health and Education Act (DSHEA). See Amended Complaint [DE 5] at 

Count IV. Violation of these Federal Laws carry potential criminal penalties. For example, in 

2019 an individual was sentenced to two years in prison related to Kratom sales after pleading 

guilty to one count of introducing misbranded drugs into interstate commerce and one count of 

importing Kratom.1 Moreover, in this particular case, the fact that a death was involved may give 

rise to prosecution by the State of Florida relating to the circumstances leading up to Ms. 

Talavera’s death. Therefore, Harder has reasonable cause to fear he may face a subsequent 

criminal prosecution and that the information or statements produced in this case could be used 

against him in that criminal proceeding. 

Plaintiff also argues that Harder cannot assert his Fifth Amendment privilege because 

certain facts have allegedly already been revealed by Harder in other social media circles. While 

a witness can waive their Fifth Amendment right by testifying voluntarily about a subject, waiver 

of the privilege is not something that should be lightly inferred. See Michell v. United States, 526 

U.S. 314, 321-22 (1999). In fact, courts must indulge “every reasonable presumption” against 

waiver of fundamental constitutional rights. Walton v. Briley, 361 F.3d 431, 433 (7th Cir. 2004) 

(citations and internal quotations omitted). 

 The caselaw Plaintiff relies upon for this proposition are easily distinguishable. In 

Rogers, the witness already disclosed in her testimony to a grand jury that she was the Treasurer 

of the Denver Communist Party so the Court found that disclosure of acquaintances to her 

successor did not present a reasonable threat of criminal prosecution. Rogers v. United States, 

340 U.S. 367, 375 (1951). Indeed, Rogers’ holding is contrary to Plaintiff’s argument: 

1 Michigan Man Sentenced for Unlawfully Importing and Distributing Misbranded Drugs | OPA | 

Department of Justice

Case 9:22-cv-81731-DMM Document 27 Entered on FLSD Docket 02/03/2023 Page 5 of 9
6 

Requiring full disclosure of details after a witness freely testifies as 

to a criminating fact does not rest upon a further ‘waiver’ of the 

privilege against self-incrimination...As to each question to which 

a claim of privilege is directed, the court must determine whether 

the answer to that particular question would subject the witness to 

a ‘real danger’ of further crimination.

Id. at 374. In Foster v. People, a prosecution witness and accomplice of the criminal defendant 

testified at trial and answered all the questions from the prosecutor, but then asserted the Fifth 

Amendment and refused to answer cross examination questions from the accused’s counsel. 18 

Mich. 266 (1869). The Supreme Court of Michigan held that allowing the accomplice to assert 

the Fifth Amendment would lead to an absurd and unreasonable consequence and should not be 

allowed. Id. at 273. Here, Harder has done no such thing. Indeed, he asserted his privilege 

against self-incrimination in his initial disclosures. Plaintiff also erroneously asserts that because 

Harder presumably made certain comments on online platforms – which Plaintiff speculates

were written by Harder – that this somehow constitutes a waiver of Harder’s Fifth Amendment 

privilege. This argument simply flies in the face of dozens of years of Fifth Amendment 

jurisprudence. For example, that would be akin to arguing that because a suspect’s voice is 

presumably caught on a wire-tap, then the suspect could be compelled to authenticate the 

recording. That is simply not what the law dictates. See e.g., Bellis v. U. S., 417 U.S. 85, 88, 94 

S.Ct. 2179, 40 L.Ed.2d 678 (1974) (noting that “[t]he constitutional privilege against selfincrimination ... is designed to prevent the use of legal process to force from the lips of the 

accused individual the evidence necessary to convict him or to force him to produce and 

authenticate any personal documents or effects that might incriminate him.”) 

Likewise, in Guede v. Windsor Capital Mortg. Corp, the Third DCA declined to allow 

the Fifth Amendment privilege to be asserted because the documents at issue were transmitted to 

other parties in the same lawsuit and, in some cases, to third parties. 18 So. 3d 1257 (Fla. 3d 

Case 9:22-cv-81731-DMM Document 27 Entered on FLSD Docket 02/03/2023 Page 6 of 9
7 

DCA 2009). Here, Harder has not disclosed any documents or information in this lawsuit or any 

others. Indeed, there is no proof that Harder was the individual on the other end of the computer 

typing these online posts. Even if they were, Plaintiff cannot force Harder to waive his Fifth 

Amendment right against self-incrimination and compel him in his initial disclosures to admit 

that he is the one who authored those online posts. Simply put, Harder cannot be compelled to 

authenticate online posts that implicate the author in the marketing, sale and/or distribution of 

Kratom as he has a reasonable belief that it could lead to criminal prosecution. 

Lastly, Plaintiff contends that by filing an Answer with standard affirmative defenses, 

Harder is somehow precluded from asserting his Fifth Amendment privilege. Motion to Compel 

[DE 23] at p. 11-12. Yet, Plaintiff completely ignores Florida caselaw that holds asserting 

affirmative defenses by a civil defendant does not give rise to precluding that defendant from 

asserting the Fifth Amendment. DeLisi v. Bankers Ins. Co., 436 So. 2d 1099, 1100 (Fla. 4th DCA 

1983) (noting that an assertion of affirmative defenses does not constitute a voluntary application 

for affirmative relief so as to permit utilization of the “sworn and shield” doctrine). Notably, the 

very case Plaintiff relies upon, i.e., Branaccio v. Mediplex Management of Port St. Lucie, Inc., 

711 So. 2d 1206 (Fla. 4th DCA 1998), references the DeLisi case. It is troubling, however, that 

Plaintiff fails to point out this potentially dispositive authority against Plaintiff’s contention that 

exists in the very case Plaintiff relies upon. “The ostrich-like tactic of pretending that potentially 

dispositive authority against a litigant's contention does not exist is as unprofessional as it is 

pointless.” Hill v. Norfolk & W. Ry. Co., 814 F.2d 1192, 1198 (7th Cir. 1987) 

The so-called “sword and shield” doctrine typically applies when a civil plaintiff brings a 

lawsuit and then in that suit invokes the Fifth Amendment to evade responding to discovery 

propounded on them by the very party they’ve chosen to sue. Branaccio, 711 So. 2d at 1206. In 

Case 9:22-cv-81731-DMM Document 27 Entered on FLSD Docket 02/03/2023 Page 7 of 9
8 

Branaccio, a criminal defendant accused of murder brought a civil action against a mental 

institution for allegedly giving him the drugs that caused him to become involuntarily intoxicated 

– his defense in the criminal case. Id. In the civil law suit the criminal defendant/civil plaintiff 

asserted the Fifth Amendment blocking the discovery sought by the mental institution. Id. The 

Branaccio court analyzed the issue of sanctions being imposed on the plaintiff for invoking the 

Fifth Amendment in the civil action he brought. Id. Importantly, it distinguished circumstances 

where a plaintiff brings a lawsuit and then asserts the Fifth Amendment from situations, such as 

the case at bar, where a civil defendant asserts the Fifth Amendment: 

In the case at bar, petitioner's assertion of affirmative defenses 

does not constitute a voluntary application for affirmative relief so 

as to permit utilization of the “sword and shield” doctrine. Thus, 

the trial court erred in resolving the case on this basis. 

Id. at 1209 (citing DeLisi, 436 So. 2d at 1100). Therefore, Plaintiff’s reliance on Branaccio is 

completely misplaced. It is also telling that the only other case Plaintiff cites to on this issue is a 

two sentence opinion which merely states that Florida state trial courts have broad discretion to 

stay proceedings, i.e., Air Comport Mechanical, Inc. v. Simmons, 252 So. 2d 285 (Fla. 2d DCA 

1971). Air Comport Mechanical has no bearing on this issue. 

Here, Harder has not sought affirmative relief as defined by the “sword and shield” 

doctrine. He has merely asserted defenses that are standard defenses in product liability and tort 

actions that are typically asserted to avoid the argument that the defense has been waived since it 

was not raised in a pleading. For example, if the cause of Ms. Talavera’s death was something 

else other than the voluntary ingestion of Kratom, such that it would give rise to an intervening 

or superseding cause defense, then Harder is entitled to that defense regardless of whether he 

asserts the Fifth Amendment. There is no case or legal theory that Defendant is aware of that 

stands for the proposition that Harder has waived his right to assert affirmative defenses or 

Case 9:22-cv-81731-DMM Document 27 Entered on FLSD Docket 02/03/2023 Page 8 of 9
9 

present evidence of another cause of death simply because he has asserted his Fifth Amendment 

privilege against self-incrimination – or vice versa. 

At the end of the day, Plaintiff is attempting to greatly expand the scope and import of 

Federal Rule of Civil Procedure 26. Rule 26 does not trump the Fifth Amendment to the 

Constitution. Rule 26 disclosures are the start of the discovery process and do not give rise to a 

party seeking to compel the disclosures of each and every document or piece of evidence the 

Plaintiff thinks it is entitled to. Plaintiff has a remedy. He can serve targeted discovery and 

request depositions. But he should not be permitted to compel Harder to amend his initial 

disclosures in violation of his Fifth Amendment right against self-incrimination. 

 Dated: February 3, 2023. 

 /s/ Justin D. Niznik

Designated email addresses: 

justin.niznik@bowmanandbrooke.com 

kara.thomas@bowmanandbrooke.com 

orfa.diaz@bowmanandbrooke.com 

JUSTIN D. NIZNIK 

Florida Bar No. 774901 

BOWMAN AND BROOKE LLP 

1064 Greenwood Boulevard - Suite 212 

Lake Mary, Florida 32746-5419 

(407) 585-7600 

(407) 585-7610 – Fax 

Attorneys for Defendants 

GROW, LLC and 

SEAN MICHAEL HARDER

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on February 3, 2023, a true and correct copy of the 

foregoing was electronically filed with the Clerk of the Court using the CM/ECF system, system, 

which generates a notice of the filing to all attorneys of record. 

 /s/ Justin D. Niznik

JUSTIN D. NIZNIK 

Florida Bar No. 774901 

Case 9:22-cv-81731-DMM Document 27 Entered on FLSD Docket 02/03/2023 Page 9 of 9