On February 9, 2016, Applicants petitioned this Court under 28 U.S.C. § 1782 (“Section 1782”) for an order compelling Litai Assets, LLC (“Litai”), a company existing and organized under the laws of the State of Florida, to produce discovery for use in reasonably contemplated criminal foreign proceedings against Jean-Michael Paul (“Paul”), a director of Acheron Portfolio Corporation Luxembourg S.A. (“APC”). See ECF No. [1].

On February 10, 2016, the Court entered an order granting the Section 1782 Application, (“Section 1782 Order”), authorizing Applicants to issue and serve subpoenas upon Litai for business records, deposition testimony, electronically stored information, any other electronic communications relating to any communication between Litai, Jan-Eric Samuel (in his capacity as Chairman and CEO of Litai or in relation to Litai) and Paul, and any communications between Litai, Acheron Capital Limited (“ACL”), and/or APC. See ECF No. [7].

On March 24, 2016, Litai moved to quash the subpoenas under Rule 45 of the Federal Rules of Civil Procedure and Local Rule 26.1, arguing that Applicants did not satisfy the elements of Section 1782. See ECF No. [10]. In their response filed April 18, 2016, Applicants moved to compel production in accordance with the Section 1782 Order. See ECF No. [16]. On July 27, 2016, after Litai and Applicants timely filed their corresponding replies, the Court denied Litai’s motion to quash and granted Applicants’ motion to compel. See ECF No. [30].

Litai appealed, ECF No. [31], and sought to stay discovery pending the appeal, ECF No. [32]. This Court, as well as the Eleventh Circuit Court of Appeals, denied Litai’s motion to stay pending appeal. See ECF No. [36]; see also Furstenberg Finance SAS v. Litai Assets LLC, No. 16–15664–DD (11th Cir. Feb. 8, 2017). On December 15, 2017, the Eleventh Circuit affirmed the Court’s denial of Litai’s motion to quash. See Application of Furstenberg Finance SAS v. Litai Assets LLC, 877 F.3d 1031 (11th Cir. 2017).

On July 14, 2017, Applicants filed a second motion to compel production in accordance with the Section 1782 Order. See ECF No. [43]. Litai responded to the second motion to compel and, on September 21, 2017, Samuel filed a motion for a protective order. See ECF No. [64]. On October 30, 2017, the Court granted Applicants’ second motion to compel and denied Samuel’s motion for a protective order.[2] See ECF No. [73]. Pursuant to that order, Litai was ordered to produce Samuel for deposition as an officer of Litai. See Id. at 21.

*2 On December 12, 2017, Litai and Samuel filed a motion to amend the Section 1782 Order to provide for reciprocal recovery, see ECF No. [80], which the Court denied on January 10, 2018, see ECF No. [89]. On December 21, 2017, Applicants filed the present Motion. See ECF No. [82]. The parties have timely filed their respective response and reply. See ECF Nos. [87], [90]. The Motion is ripe.[3]

The sole issue before the Court is whether Litai has complied with the Court’s orders, in particular the Court’s October 30, 2017 Order granting Applicants’ second motion to compel (the “Order”). A review of the record demonstrates that Litai continues to flout its discovery obligations pursuant to the Court’s orders.

In the Order, the Court held that “Litai ha[d] not established that its deficient production was substantially justified in any way.” ECF No. [73], at 13. Specifically, the Court noted that it was “difficult to accept” that the over 20,000 “Paul”-related hits failed to produce a single meaningful email concerning Paul. See Id. at 9 n.5. Accordingly, the Court ordered Litai to “produce all non-privileged communications in its possession, custody, or control to, from, or including Paul regarding” the following five topics:

See Id. at 20–21. Nevertheless, Litai has once again failed to produce a single email to, from, or including Paul. This basis alone is sufficient to warrant the granting of Applicants’ Motion.

Litai’s reasons for its continued failure to produce any Paul-related emails are unavailing. First, Litai has admittedly failed to even review the more than 20,000 hits generated by searching the term “Paul.”[4] Although Litai searched 85 terms, only 3 of those terms contained a direct reference to Paul,[5] and none of the terms contained a Paul email address. See ECF No. [83–1].

*3 Further, none of the search terms were designed to generate hits in French, even though Paul and Samuel seemingly use French when communicating with one another. Litai submits three arguments in response. The first is that “the first time that Applicants ever raised the issue of using French-language words in search terms was at the Rule 30(b)(6) deposition on November 29, 2017. Applicants never raised this issue before with Litai, its lawyers, or with this Court.” ECF No. [87], at 8. However, it was Litai, and most obviously Samuel, who was in the best position to know and determine that potentially relevant correspondence between Samuel and Paul occurred in a different language, and that searches in English would not retrieve any correspondence conducted in a different language.

Second, Litai argues that “Samuel does not typically communicate in French when conducting Litai business.” Id. (emphasis added). This admission, of course, leaves open the possibility that Samuel conducts some Litai business in French. Samuel’s affidavit submitted in support of Litai’s response further undermines Litai’s position: Samuel stated that “I typically only write emails relating to Litai’s business in French on the rare occasions when I am responding to an email that is directed to me and written in French.” ECF No. [87–4].

Conspicuously missing from Samuel’s affidavit is a statement regarding what language he uses when communicating with Paul. Record evidence, however, clearly demonstrates that Samuel and Paul do in fact communicate using the French language. See ECF Nos. [84], [84–1]. By Samuel’s own admission, he writes emails in French, particularly when he receives emails in that language. Thus, it is highly likely that Paul sent emails to Samuel in French regarding Litai’s business, and Samuel responded in kind. Such communications, however, would not be retrieved by English-only search terms. Litai and Samuel must be aware of this.

Litai’s third argument relating to the use of French-language terms is that Litai came up with and conducted searches in French. See ECF No. [87], at 8–9. This is true. As with the 85 search terms, however, only one of the eleven searches directly mentioned Paul. See Id. at 9.

As a result of Litai’s production deficiencies, Applicants have moved for sanctions to be entered against Litai. Civil contempt is “an area where the district court has extremely broad and flexible powers.” F.T.C. v. Leshin, 719 F.3d 1227, 1231 (11th Cir. 2013). District courts have “wide discretion in fashioning an equitable remedy for ... civil contempt.” Id. “[S]anctions in civil contempt proceedings may be employed for either or both of two purposes: to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained.” Local 28 of Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 443 (1986). “A coercive contempt sanction comes with some limitations; for instance, once a contemnor’s contumacious conduct has ceased or the contempt has been purged, no further sanctions are permissible.” Leshin, 719 F.3d at 1231. On the other hand, “the district court’s discretion in imposing non-coercive sanctions is particularly broad and only limited by the requirement that they be compensatory.” Howard Johnson Co. v. Khimani, 892 F.2d 1512, 1521 (11th Cir.1990). Indeed, the Supreme Court has observed that district courts possess particularly expansive and flexible powers in these circumstances: “The measure of the court’s power in civil contempt proceedings is determined by the requirements of full remedial relief.” McComb v. Jacksonville Paper Co., 336 U.S. 187, 193 (1949); see also AT&T Broadband v. Tech Commc’ns, Inc., 381 F.3d 1309, 1316 (11th Cir.2004)(“[W]hen the public interest is involved ..., [the district court’s] equitable powers assume an even broader and more flexible character.” (alterations in original) (internal quotation marks omitted)).

*4 The Court has ordered Litai on three previous occasions to produce relevant Paul-related correspondence.[6] Yet it is undisputed Litai has failed to produce a single meaningful communication to, from, or including Paul.[7]As the Court observed in the Order, “It is possible that Litai has produced the only relevant documents in its possession.” ECF No. [73], at 11. Yet by only searching three terms that directly reference Paul (and only one in French even though it is a primary language used by Samuel and Paul when communicating with each other) and failing to review the 20,000 hits generated when searching “Paul,” the Court is in no better position to dispel its concerns regarding the reasonableness of Litai’s production of Paul-related correspondence.[8]

In sum, the Court finds, as it did in the Order, that Litai’s search process and ensuing failure to produce any meaningful emails from Paul is neither reasonable nor justified. In fact, Litai’s efforts may be more unreasonable now, as they were conducted after and in spite of the Court’s clear and specific directions provided in the Order. Litai has not given the Court reason why it should find otherwise. Applicants are thus entitled to sanctions. See Sergeeva v. Tripleton International Limited, 834 F.3d 1194, 1202 (11th Cir. 2016) (affirming district court’s issuance of sanctions of $500 a day and attorney’s fees for company’s failure to produce documents responsive to a subpoena in a Section 1782 proceeding).[9]

*5 Applicants have established that Litai’s discovery as it pertains to Paul-related correspondence continues to be deficient, particularly in light of this Court’s October 30, 2017 Order delineating Litai’s discovery obligations. For the foregoing reasons, it is therefore ORDERED AND ADJUDGED that

DONE AND ORDERED in Miami, Florida this 30th day of January, 2018.

For a more detailed recitation of the underlying facts supporting Applicants’ Section 1782 Application, see ECF Nos. [7], [73], [89].

Litai and Samuel also appealed the Court’s order granting Applicants’ second motion to compel and denying Samuel’s motion for a protective order. See ECF No. [74]. Pursuant to Movants’ motion for voluntary dismissal, the Eleventh Circuit dismissed the appeal on January 5, 2018. See ECF No. [88].

Litai and Samuel have also moved for a hearing in relation to Applicants’ Motion. See ECF No. [94].

Applicants cite to the deposition of Litai’s corporate representative in support of this contention. The pertinent exchange is as follows:

The terms searched were: “26. Pay* OR commission* AND Paul OR Samuel OR Jean-Michel OR Jes OR Jan”; “28. (Litai AND meet* OR minutes*) AND (Paul OR Jean*)”; “29. Litai AND Paul AND Samuel AND Mukamal AND purchase*”). ECF No. [83–1], at 3.

See ECF No. [7] (order granting application for discovery under Section 1782); ECF No. [30] (order denying Litai’s motion to quash subpoenas and granting Applicants’ motion to compel); ECF No. [73] (order denying Samuel’s motion for protective order and granting Applicants’ second motion to compel).

Litai spends much of its response describing its various efforts to comply with the Court’s orders. The Court recognizes those efforts, and does not intend to disparage them. And, as Litai correctly points out, it has complied with some of the Court’s directives. See ECF No. [73], at 18–21; ECF No. [75]. The problem, of course, is that those efforts still failed to address the crux of Applicants’ motions to compel, their Section 1782 Application, or the Court’s orders—that is, the discovery of communications between Litai or Samuel and Paul (that Applicants contend will shine a light on Paul’s concealed ownership in Litai). The fact that Litai has not produced anyPaul-related correspondence—even though Samuel and Paul are close friends and business associates—is the clearest evidence that Litai’s searches, notwithstanding all its other discovery efforts, have been deficient in this crucial respect.

In its response, Litai states that it should not be held to a “standard of perfection.” ECF No. [87], at 12. There is a wide gap, however, between a “perfect” search and declining to review the 20,000 “Paul” hits, for example.

Litai argues that Applicants’ Motion should be denied because Applicants failed to comply with the Court’s Local Rule 7.1(a)(3). See ECF No. [87], at 13–15. The Court notes, however, that Applicants have engaged in numerous reasonable attempts to confer and resolve issues absent judicial intervention throughout these proceedings. See ECF No. [73], at 12. In addition, Applicants’ counsel engaged in an email exchange, though terse, and a telephone conversation with Litai’s counsel prior to filing the Motion several days later. See ECF Nos. [83–3]; [83–4]; [82], at 11. Finally, Local Rule 7.1(a)(3) gives the Court discretion impose a penalty for a party’s failure to comply. SeeS.D. Fla. L.R. 7.1(a)(3) (“Failure to comply with the requirements of this Local Rule may be cause for the Court ....”) (emphasis added). Thus, the Court, in its discretion, declines to find that Applicants’ conferral constitutes a violation of Local Rule 7.1(a)(3). Alequin v. Darden Restaurants, Inc., No. 12–61742–CIV, 2013 WL 3939373, at *9 (S.D. Fla. July 12, 2013) (“Yet even where a violation of Local Rule 7.1 occurs, the Court enjoys discretion to decide whether to deny the motion because of the violation.”)

Accordingly, Litai’s Motion for Hearing in relation to Applicants’ Third Motion to Compel, ECF No. [94], is denied as MOOT.