*1 THIS CAUSE is before the Court on Plaintiffs, UMG Recordings, Inc., Capitol Records, LLC, Universal Music Corp., Universal Music – Z Tunes LLC, Universal Musica, Inc., PolyGram Publishing, Inc., Songs of Universal, Inc., and Universal Music – MGB NA LLC's, (hereinafter “Plaintiffs”) Motion to Compel and for Sanctions (ECF No. 40); Motion to Compel the Production of Alleged Privileged Communications (ECF No. 47); Motion to Compel the Deposition of Defendant Jack Owoc (ECF No. 48); and Defendants Vital Pharmaceuticals, Inc. And Jack Owoc's (hereinafter “Defendants”) Motion to Compel Discovery from Plaintiffs. (ECF No. 43) On July 26, 2021, the Honorable William P. Dimitrouleas referred all pretrial discovery matters to United States Magistrate Judge Lurana S. Snow for appropriate resolution pursuant to 28 U.S.C. § 636 and the Magistrate Rules of the Local Rules of the Southern District of Florida. (ECF No. 17) The Motions are now ripe for review.

On February 18, 2022, the Court entered an Order granting in part and denying in part Plaintiffs’ Motion to Compel. (ECF No. 33) Pursuant to that Order Defendants were required to: supplement their discovery responses to Plaintiffs’ first requests for production and first set of interrogatories or to state that no additional information existed; produce all contracts and agreements between Defendant Bang Energy and Michael Le, Q Park, as well as those contracts with Bang Energy's twenty largest influencers; and to set a date for the deposition of Defendant Jack Owoc. Id. at 9-10. Compliance with the above was ordered to occur by the then February 25, 2022 discovery cutoff. Id.

On February 21, 2022, the parties filed a Joint Motion to extend the discovery cutoff to March 4, 2022, for the limited purpose of taking the deposition of Jack Owoc, which the Court granted. (ECF Nos. 35; 34) Two days later, on February 23, 2022, the parties once again filed a Joint Motion to extend the discovery cutoff to April 15, 2022, which the Court also granted. (ECF Nos. 39; 36) Finally, on April 13, 2022, the parties filed two separate Motions to extend the discovery cutoff for a third time which the Court denied. In its Order denying the parties’ requests, the District Court stated that “[c]ounsel may agree among themselves to conduct discovery beyond the discovery deadline but should not expect the Court to resolve any disputes that arise after the Court's established deadline.” (ECF No. 49 at 2)

In the interim four separate discovery Motions were filed up to and through the eve of the discovery cutoff. Plaintiffs’ Motion to Compel and for Sanctions (ECF No. 40); Defendants’ Motion to Compel Discovery from Plaintiffs. (ECF No. 43); Plaintiffs’ Motion to Compel the Production of Alleged Privileged Communications (ECF No. 47); and Plaintiffs’ Motion to Compel the Deposition of Defendant Jack Owoc (ECF No. 48). The last of the three discovery Motions were all filed within four days of the April 15, 2022 discovery deadline leaving no opportunity for briefing to be completed prior to it, even on an expedited basis.

1. Plaintiffs’ Motion to Compel and for Sanctions (ECF No. 40) and Plaintiffs’ Motion to Compel the Deposition of Jack Owoc (ECF No. 48):

*2 In Plaintiffs’ Motion to Compel and for Sanctions (ECF No. 40), Plaintiffs request that the Court enter an Order: “(1) compelling Defendants to immediately produce all responsive documents and complete interrogatory responses for the First and Second (discovery) Requests; [and] (2) awarding Plaintiffs their reasonable attorneys’ fees and costs incurred in connection with these discovery matters in accordance with both Fed. R. Civ. P. 37(a)(5)(A) and Fed. R. Civ. P. 37(b)(2)(c).... (ECF No. 40 at 5) In opposition to Plaintiffs’ Motion, Defendants’ sole argument is that they are “diligently reviewing tens of thousands of responsive documents and are producing those documents on a rolling basis...” and supplementing their interrogatory responses. (ECF No. 41 at 3)

This Court's previous discovery Order unambiguously ordered Defendants to supplement their discovery responses to Plaintiffs’ first requests for production and first set of interrogatories or to state that no additional information existed; produce all contracts and agreements between Defendant Bang Energy and Michael Le, Q Park, as well as those contracts with Bang Energy's twenty largest influencers; and to set a date for the deposition of Defendant Jack Owoc.[1] (ECF No. 33 at 9-10) Compliance with the above was ordered to occur no later than February 25, 2022. Id. Defendants state that following this Court's Order, Defendants “assembled a review team and began reviewing the 105,913 documents including conducting targeted searches.” (ECF No. 41 at 3) Defendants state that due to the volume of documents they were not able to comply with the Court's February 25, 2022 deadline, however, Defendants argue that Plaintiffs are not prejudiced because the Court extended the discovery cutoff until April 15, 2022. Id. at 5.

As of the filing of Defendants’ response to Plaintiffs’ Motion to Compel and for Sanctions on April 1, 2022, Defendants state that they have reviewed 31,189 out of the 105,913 documents identified in Defendants search as being potentially responsive to Plaintiffs’ discovery requests and Defendants further state that they have produced 619 documents. Id. at 3. While the Court notes that the discovery cutoff was extended to April 15, 2022, Defendants do not state that compliance with the Court's previous Discovery Order would be achieved by that date, nor has the Court received any indication since the discovery cutoff passed, informing the Court that compliance has been achieved.

The Court's previous discovery Order stated that “Defendants have been provided with enough time to either provide the documents and information sought in Plaintiffs’ discovery requests or to state clearly that the information sought does not exist/is not in Defendants’ custody or control.” (ECF No. 33 at 6) Rather than comply with the Court's ordered February 25, 2022 deadline or the extended April 15, 2022 discovery deadline, Defendants continue to state that more time is needed to review and to produce documents responsive to Plaintiffs’ requests. The time for discovery has clearly passed in this case as has the time for compliance with the Court's Order. The District Court denied the parties Motions to once again extend the discovery cutoff clearly marking April 15, 2022, as the final discovery deadline in this case. (ECF No. 49) Accordingly, the discovery previously ordered by the Court must be produced. (ECF No. 33)

Defendants shall supplement their discovery responses to RFPs 2-3, 14-16, 38-53 and Interrogatories 1-2, and 13 from Plaintiffs’ first request for production and first set of interrogatories, to either fully respond to Plaintiffs’ discovery requests with the information Defendants previously stated they were working to identify, or Defendants shall clearly state that any additional information does not exist/is not in Defendants’ custody or control. Defendants shall produce all contracts and agreements between Bang Energy and Michael Le, Q Park, as well as Bang Energy's twenty other biggest influencers, measured by either followers or the amounts paid by Defendants. Defendants shall state which measure was utilized to identify the biggest influencers. This shall be done within one week of the date of this Order. Should Defendants once again fail to comply with their discovery obligations, the Court will consider Plaintiffs’ request for more severe Rule 37 sanctions.[2]

*3 The Court has also previously ordered Defendants to set an agreeable date for the deposition of Jack Owoc either prior to the February 25, 2022 discovery cutoff or at some other agreeable time with leave of the District Court. The parties sought an extension of the discovery cutoff for the sole purpose of conducting the deposition of Mr. Owoc on February 21, 2022. (ECF No. 34) The District Court granted this request and extended the discovery cutoff through March 4, 2022, for the sole purpose of conducting this deposition. (ECF No. 35) Mr. Owoc's deposition was never set however, and is the subject of Plaintiffs’ Motion to Compel at ECF No. 48.

Defendant Jack Owoc shall have one final opportunity to set a date for his deposition to occur within one week of the date of this Order. Should Mr. Owoc fail to comply with this deadline the Court will consider imposing sanctions pursuant to Rule 37 including, but not limited to, prohibiting Defendants from introducing the testimony of Jack Owoc at trial or in support of Defendants’ Motion for Summary Judgment. See Fed. R. Civ. P. 37(b)(2)(A)(ii). To the extent that such evidence has already been used in support of Defendants’ pending Motion for Summary Judgment (ECF No. 60), the Court will consider striking such evidence from consideration.

Plaintiffs also ask the Court to award the attorneys’ fees Plaintiffs incurred in prosecuting the Motions to Compel at ECF Nos. 40 and 48. Under Rule 37, an award of attorneys’ fees is appropriate to offset costs incurred in prosecuting a motion to compel unless the opposing party's “nondisclosure, response, or objection was substantially justified; or ... other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(ii)-(iii). Here Plaintiffs were required to file two additional Motions to Compel in order to obtain discovery which the Court had previously ordered to be produced. (ECF No. 33) Accordingly, Plaintiffs’ request for attorneys fees are granted, Plaintiffs shall file a separate Motion in accordance with Local Rule 7.3 outlining the attorneys’ fees Plaintiffs incurred in prosecuting the Motions at ECF Nos. 40 and 48.

Additionally, to the extent that Plaintiffs take issue with Defendants responses to Plaintiffs’ second set of interrogatories and requests for production, the Court notes Defendants’ stated position that “they will produce documents if identified after a reasonable search, supplement any related interrogatory responses, and are willing to meet and confer on other requests to which Defendants asserted valid, non-formulaic objections.” (ECF No. 41 at 4) Defendants shall certify to Plaintiffs in writing that their discovery responses to Plaintiffs’ second set of interrogatories and requests for production are correct and complete in accordance with Rule 26(g)(1). This shall be done within one week of the date of this Order.

2. Defendants’ Motion to Compel (ECF No. 43):

Defendants’ Motion to Compel asks this Court to enter an Order compelling Plaintiffs to produce all discovery responsive to request for production (“RFP”) Nos. 1-3 and 5 from Defendants’ first request for production. (ECF No. 43 at 6) Plaintiffs argue in opposition that Defendants’ Motion to Compel is untimely pursuant to Local Rule 26.1(g)(1) as Plaintiffs objected to Defendants’ discovery requests on October 15, 2021, and Defendants did not file the Motion to Compel until April 11, 2022. (ECF No. 51 at 2) Local Rule 26.1(g)(1) states as follows:

*4 S.D. Fla. L.R. 26.1(g)(1)

Defendants argue that their Motion to Compel is timely because the parties were meeting and conferring to resolve the issues presented in the Motion and that “it only became apparent on April 1, 2022 [or] later on April 5, 2022, that an impasse has been reached....” (ECF No. 43 at 4) Plaintiffs dispute this and state that Defendants waited nearly five months after Plaintiffs raised their objections, to meet and confer on the issues presented in Defendants’ Motion. (ECF No. 51 at 2) This is corroborated by Defendants’ meet and confer letter which is dated March 11, 2022. (ECF No. 43-4) Defendants alternatively argue that the Court should consider the Motion on the merits even if the Motion is found to be untimely. The Court will not do so.

Plaintiffs served Defendants with their objection to the discovery requests on October 15, 2021. (ECF No. 43-3) Any Motion related to these discovery requests should have been presented to the Court by November 15, 2021. This was not done. Rather than timely presenting the issues to the Court, Defendants did not file their Motion until April 11, 2022, four days prior to the April 15, 2022 discovery cutoff. As noted earlier, in its Order denying the parties request to extend the discovery cutoff, the Court stated that “[c]ounsel may agree among themselves to conduct discovery beyond the discovery deadline but should not expect the Court to resolve any disputes that arise after the Court's established deadline.” (ECF No. 49) The Court finds that not only is Defendants’ Motion untimely as being filed nearly six months after Plaintiffs served their discovery objections, but Defendants’ Motion was also filed in such a manner as to not allow briefing, even on an expedited basis, prior to the discovery cutoff. In light of this and the Court's explicit holding regarding disputes arising past the Court's discovery deadline, the Court finds that Defendants’ Motion is untimely and is denied on this basis.

3. Plaintiffs’ Motion to Compel the Production of Alleged Privileged Communications (ECF No. 47):

In Plaintiffs’ Motion to Compel the Production of Alleged Privileged Communications, Plaintiffs ask the Court to compel Defendants to “produce all documents supporting their innocent infringement/advice of counsel defense, including all pertinent legal analyses and attorney-client communications.” (ECF No. 47 at 2) Plaintiffs argue that these documents are neither privileged nor properly withheld. Id.

The Court first notes that Plaintiffs’ Motion was filed on April 13, 2022, two days prior to the discovery cutoff. (ECF No. 47) Pursuant to S.D. Fla. L.R. 26.1(g)(1) “[a]ll disputes related to discovery shall be presented to the Court by motion ... within (30) days from the ... objection to the discovery request that is the subject of the dispute....” Id. “This Rule was designed to prompt early resolution of discovery disputes and ‘to ensure that discovery motions are filed when ripe and not held until shortly before the close [of] discovery or the eve of trial.’ ” Chappel v. Boss Rain Forest Pet Resort, Inc., No. 16-62779-CIV-SNOW, 2017 WL 10845129, at *1 (S.D. Fla. Oct. 17, 2017) (citing Poe v. Carnival Corp., No. 06-20139-CIV, 2007 WL 211118, at *2 (S.D. Fla., Jan. 23, 2007)). “Moreover, the comments to the rule reflect “a policy of promoting the prompt resolution of discovery disputes by requiring the parties to timely bring to the court's attention matters the parties cannot resolve amongst themselves.” Chappel, 2017 WL 10845129, at *1 (citing Manno v. Healthcare Revenue Recovery Group, No. 11–61357–CIV, 2012 WL 140953 at *3 (S.D. Fla., Apr. 23, 2012).”

*5 The Court also notes that contrary to Plaintiffs’ position, Defendants raised privilege objections to Plaintiffs’ discovery requests dating back to September 9, 2021. (ECF No. 55-2) It is not clear to the Court, and Plaintiffs do not provide any explanation as to why the issues presented in Plaintiffs’ Motion to Compel the Alleged Privileged Communications were not brought to the Court's attention at some point prior to the eve of the discovery cutoff. Plaintiffs’ Motion was filed more than seven months after Defendants served their initial responses to Plaintiffs’ first set of interrogatories and requests for production. Moreover, Plaintiffs’ Motion was filed more than thirty days after Defendants served their supplemental responses to Plaintiffs’ discovery requests. (ECF No. 47-2) As established in the Court's Order denying the parties request to extend the discovery deadline (ECF No. 49), as well as stated herein, the time for discovery has passed in this case. Plaintiffs’ Motion was filed on the eve of the discovery cutoff leaving no opportunity to complete briefing on the issues presented. The substantive pretrial motions deadline has already passed, summary judgment motions are currently pending before the Court, and trial is set to begin in less than three months time. (ECF Nos. 39; 60; 61; 82) Accordingly, Plaintiff's Motion to Compel the Production of Alleged Privileged Communications (ECF No. 47) is denied as being untimely.

After careful review of the Motions, the responses, the replies thereto, the court file, and applicable law, it is hereby

ORDERED AND ADJUDGED as follows:

DONE AND ORDERED at Fort Lauderdale, Florida, this 23rd day of May 2022.