*1 Mr. Klein and Ms. Oved dated from January 2017 to December 2019. ECF No. 1 ¶9. Mr. Klein alleges that when they broke up, Ms. Oved did not return an iPad that belonged to Mr. Klein and that contained trade secrets and other sensitive information. When Ms. Oved refused to return the iPad, Mr. Klein sued her in February 2022 for violating the Stored Communications Act, the Defend Trade Secrets Act, and the Computer Fraud and Abuse Act. He also sued for common law replevin. ECF No. 1. The currently-operative Third Amended Complaint also includes claims for abuse of process, conversion, tortious interference with advantageous business relationship, trespass to chattel, and racketeering. ECF No. 55. In support of the abuse of process cause of action, it alleges that Ms. Oved improperly sued Mr. Klein in Miami-Dade circuit court in 2020. Id. ¶¶ 133-137. It further alleges Ms. Oved tried to pressure Mr. Klein in the Miami-Dade litigation by using media connections to disseminate harmful information about Mr. Klein, including a January 2022 press release. Id. ¶¶ 56-62, 137. Although not pled in the complaints, there apparently was a domestic relations case between Mr. Klein and Ms. Oved in Palm Beach circuit court. ECF No. 191-1.

Mr. Klein has filed two sanctions motions. The first focuses primarily on Ms. Oved's written responses to discovery requests. ECF No. 126. The second focuses on Ms. Oved's redacting documents produced in response to Mr. Klein's discovery requests. ECF Nos. 169, 177.[2]

Mr. Klein filed this lawsuit on February 2, 2022. ECF No. 1. Three weeks later, he moved for a preliminary injunction to stop Ms. Oved from accessing his online accounts and his iPad, and from using and disseminating trade secrets and confidential information found there. ECF No. 7. In her verified response to the injunction motion, Ms. Oved swore, “At no point when Oved had possession of the iPad did she intentionally access Klein's online accounts and obtain information from any protected computer.” ECF No. 75 at 2. She also denied causing third parties to call Mr. Klein. Id. at 7.[3]

At some point, Mr. Klein served discovery requests on Ms. Oved. The record does not reflect when. The request comprised three Requests for Production, a request to inspect the iPad, and 20 interrogatories. Ms. Oved served a consolidated response on September 26, 2022. ECF No. 126-1 (“First Response”). The certificate of service was signed by her former counsel. Id. at 12. Ms. Oved verified the answers to the interrogatories. Id. at 15. Less than two months later, on November 17, 2022, Ms. Oved provided unsworn, unsigned, amended responses. ECF No. 126-2 (“Amended Response”). Two months later, after hiring new counsel, and after that counsel met and conferred with Mr. Klein's counsel, Ms. Oved served verified amended responses. ECF No. 126-3 (“Second Amended Response”). After the case was stayed to allow the parties to mediate, Ms. Oved produced more than 20,000 documents on or about May 1, 2023. ECF Nos. 154, 169-1 ¶17.

*2 In the First Sanctions Motion, Mr. Klein asks that Ms. Oved's Answer be stricken “for egregious litigation misconduct.” ECF No. 126 at 1. The alleged misconduct is that Ms. Oved's most recent responses to Mr. Klein's discovery requests are inconsistent with prior discovery responses and with her response to Mr. Klein's motion for preliminary injunction.

Because the First Sanctions Motion addresses alleged misconduct relating to the discovery responses, I address these responses in detail.

In her First Response, Ms. Oved objected to two Requests for Production and said no responsive documents existed for the third. ECF No. 126-1 at 3. In her Amended Response, she said that no responsive documents existed for all three requests. ECF No. 126-2 at 3. In her Second Amended Response, she indicated that non-privileged responsive documents existed for the request seeking communications about “Plaintiffs, Plaintiffs’ communications with their attorneys, claims or assertions that Plaintiffs engaged in wrongful, fraudulent, or illegal conduct, the press release identified in the Amended Complaint, the allegations in the Amended Complaint, the Miami-Dade Lawsuit, any Online Accounts of Plaintiffs, any information or documents stored or contained on Plaintiffs’ Online Accounts, or the subject iPad.” She said did not have documents responsive to the other two requests. Those documents have now been produced. ECF No. 138.

Mr. Klein argues that the Second Amended Response indicates that Ms. Oved improperly withheld responsive documents in the past.

Mr. Klein asked to inspect the iPad. The Court resolved this issue in a series of Orders. ECF No. 63, 71, 79. The request for inspection is not at issue in the sanctions motions.

Mr. Klein served 20 interrogatories. In her First Response, Ms. Oved objected to, and did not answer, interrogatories 4, 5, 11, and 14. She objected to, but answered, interrogatories 2, 6, and 19.[4] She answered all the other interrogatories. As relevant here, she said she could not identify all persons who had access to the iPad or to her personal computer (interrogatory 1), denied communicating with third parties about Mr. Klein (interrogatory 7), denied that confidential information was stored on the iPad (interrogatory 8), denied reviewing communications between Mr. Klein and his lawyers (interrogatory 13), and denied viewing or accessing passwords on Mr. Klein's Evernote account (interrogatory 17),

In her Amended Response, Ms. Oved modified her answers to interrogatories 1, 6. She withdrew her objections to interrogatories 2, 4, 5, 11, 14, and 19. She provided factual answers to interrogatories 4 and 5. She denied interrogatories 2, 11, 14, and 19.

In her Second Amended Response, Ms. Oved revised her answers to interrogatories 1, 2, 3, 4, 6, 7, 8, 11, 13, 14, 15, 16, 17. She now admits (1) accessing the iPad and Mr. Klein's Instagram, Evernote, and Gmail accounts. (2) communicating with third parties about Mr. Klein and the litigation between them, (3) Mr. Klein's confidential information may be on the iPad, (4) seeing communications between Mr. Klein and his lawyers, and (5) viewing or accessing passwords stored on Mr. Klein's Evernote account.

*3 Mr. Klein asks that Ms. Oved's pleadings be stricken under the Court's inherent authority. The Court exercises its inherent authority with “restraint and discretion.” Roadway Exp., Inc. v. Piper, 447 U.S. 752, 764 (1980). That discretion is properly exercised when necessary to protect the integrity of judicial proceedings. Id.; see also Link v. Wabash R. Co., 370 U.S. 626, 630 (1962) (inherent power is necessary for Courts “to manage their affairs so as to achieve the orderly and expeditious disposition of cases.”); Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1223 (11th Cir. 2017) (Federal courts possess an inherent power to “police those appearing before them,” and to punish bad faith conduct that affects proceedings pending before the Court.). “The dual purpose of this power is to vindicate judicial authority without resorting to a contempt of court sanction and to make the prevailing party whole.” Id. Sanctions can be imposed under this power only if a party has acted in subjective bad faith. Id.

Case-ending sanctions are proper only if there is “clear and convincing evidence that (1) a defendant acted in bad faith, (2) the plaintiff was prejudiced by this conduct, and (3) lesser sanctions would not adequately serve the goals of punishment and deterrence.” Sprint Sols., Inc. v. Fils-Amie, 83 F. Supp. 3d 1290, 1295 (S.D. Fla. 2015) (J. Cohn); see also Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1306 (11th Cir. 2009) (case-ending sanctions under inherent authority appropriate “only as a last resort, when less drastic sanctions would not ensure compliance with the court's orders.”) (citation omitted); Tarasewicz v. Royal Caribbean Cruises Ltd., No. 14-CIV-60885, 2016 WL 3944178, at *2 (S.D. Fla. Mar. 17, 2016) (“Further, when imposing sanctions pursuant to their inherent authority, courts require that the conduct or fraud be proven by clear and convincing evidence.”) accord Shepherd v. American Broadcasting Cos., Inc., 62 F.3d 1469, 1478 (D.C. Cir. 1995) (Clear and convincing proof required for “inherent power sanctions that are fundamentally penal — dismissals and default judgments, as well as contempt orders, awards of attorneys’ fees, and imposition of fines.”). In deciding how to exercise inherent authority discretion, Courts also look to whether the “misconduct relates to the pivotal or ‘linchpin’ issue in the case.” Qantam Communications Corp. v. Star Broadcasting, Inc., 473 F. Supp. 2d 1249, 1269 (S.D. Fla. 2007) (J. Martinez).

“Bad faith exists when the court finds that a fraud has been practiced upon it, or that the very temple of justice has been defiled, ... or where a party or attorney knowingly or recklessly raises a frivolous argument, delays or disrupts the litigation, or hampers the enforcement of a court order.” Tarasewicz, supra, at *2 (citations omitted). A party acts in bad faith by delaying or disrupting the litigation or hampering enforcement of a court order. Eagle Hosp. Physicians, LLC, 561 F.3d at 1306. Parties have been sanctioned under the inherent authority for pursuing frivolous or harassing litigation, for fabricating evidence, or for perpetrating a fraud on the Court. See, e.g., Chambers v. Nasco, Inc., 501 U.S. 32 (1991) (fraud); Barash v. Kates, 585 F. Supp. 2d 1347 (S.D. Fla. 2006) (J. Hopkins) (frivolous litigation); Vargas v. Peltz, 901 F. Supp. 1572 (S.D. Fla. 1995) (J. Ryskamp) (perjury and fabricating evidence); see also Qantam Communications Corp., 473 F. Supp. 2d at 1269 (inherent authority is “most often invoked where a party commits perjury or destroys or doctors evidence.”). “A fraud upon the court occurs when a party knowingly sets ‘in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense.’ ” People for the Ethical Treatment of Animals, Inc. v. Dade City's Wild Things, Inc., No. 8:16-CV-2899-T-36AAS, 2020 WL 897988, at *5 (M.D. Fla. Feb. 25, 2020) (citation omitted).

*4 Applying these principles, Mr. Klein has not shown that case-ending sanctions are appropriate. For purposes of this analysis, I will view the evidence in the light most favorable to Mr. Klein, that is, I will assume without deciding that Ms. Oved acted in bad faith when she served her First Response and her Amended Response and when she filed her Response to the injunction motion.[5] Mr. Klein has not shown meaningful prejudice, undue delay or material disruption of the judicial process. Discovery does not close until October 10, 2023. ECF No. 153. Mr. Klein has had the responsive documents since May 1. He now has fulsome responses to his interrogatories. He has not shown that Ms. Oved's alleged misconduct has impeded his ability to properly litigate this case or has delayed its progress.

Mr. Klein also has not shown that a lesser sanction would be inadequate to vindicate the Court's interests or to make him whole. The alleged misconduct here does not rise to the level of a fraud on the Court or other conduct akin to perjury or obstruction of justice that affects the proper functioning of the judicial process. Other than the filing of a response to the injunction motion, the other alleged misconduct occurred outside the Court's presence — none of the discovery papers were filed with the Court.[6] And, it appears that Ms. Oved's new counsel remedied the failings in the prior papers before the sanctions motion was filed and without the need for Court intervention. Finally, Mr. Klein has not identified any other harm from the alleged misconduct and has not asked for a lesser remedy for that harm.

For all these reasons, Mr. Klein's First Motion for Sanctions (ECF No. 126) is DENIED.

The Second Motion for Sanctions again asks to strike Ms. Oved's pleadings and to award fees to Mr. Klein. It invokes both the Court's inherent authority and Federal Rule of Civil Procedure 37(b)(2). ECF No. 169 at 1, 14. Mr. Klein argues that case-ending sanctions are required because Ms. Oved improperly redacted documents she produced in response to a Request for Production. Mr. Klein says, “The redactions concealed explosive communications.” ECF No. 169 at 15. Ms. Oved responds that there was no bad faith and that Mr. Klein has unclean hands because he removed redactions from the documents. ECF No. 185.

After the case was stayed to allow the parties to mediate, Ms. Oved produced more than 20,000 documents on or about May 1, 2023. ECF No. 169-1 ¶17.[7] Some of these documents were text messages and emails responsive to Request for Production 1 (relating to communications about Mr. Klein and the case). Id. ¶19.[8] Eleven pages contained partial redactions of text messages. ECF No. 177-13 at 1, 2, 10, 13, 14, 15, 21, 22, 23, 24, 26. I conducted an in camera review of the documents with and without redactions.

Using commercially-available software, Mr. Klein's counsel was able to remove the redactions. ECF No. 169-1 ¶24. In his Second Sanctions Motion, ECF No. 177 at 15, Mr. Klein points to redactions that he says concealed that (1) in January 2022, Ms. Oved had thanked Rob Shuter for helping her communicate the harmful press release to the media, had offered to send him a gift for his help, and had expressed concern that a helpful article had been taken down, ECF No. 177-6 at 21-22; (2) in January 2022, Ms. Oved told Adam Glyn that she hoped the media pressure would “move the needle” and upset Mr. Klein, ECF No. 177-6 at 2, (3) in March 2022, Ms. Oved told Erica Knight to ignore calls from Mr. Klein's attorney in a different case and to block the attorney's number, ECF No. 177-6 at 15.[9]

*5 Mr. Klein argues that the Court should strike Ms. Oved's pleadings under Federal Rule of Civil Procedure 37(b)(2) because she “failed to obey an order to provide or permit discovery.” ECF No. 177 at 15. Ms. Oved responds that the text messages were redacted in good faith to remove irrelevant and non-responsive materials and because of Florida's journalism privilege and right to privacy. ECF No. 185 at 9-11.

Mr. Klein has failed to produce clear and convincing evidence that Ms. Oved acted in bad faith by redacting the text messages, even assuming without deciding that some material was improperly redacted. First, he has failed to show why Ms. Oved's communications with Ms. Knight about how to respond to a subpoena in an unrelated case are relevant to this one.[10] Second, even with redactions, the text messages revealed that Ms. Oved was in communication with Mr. Glyn and Mr. Shuter for the purpose of disseminating a press release that was critical of Mr. Klein. Third, Ms. Oved produced unredacted emails between her and Ms. Knight that showed Ms. Knight's efforts to get the media interested in the press release about Mr. Klein. ECF No. 177-6 at 3-9, 16-20. Fourth, in her Second Amended Response to interrogatory 7, Ms. Oved admitted to having communications with Ms. Knight and Mr. Glyn about subpoenas served on them by Mr. Klein's counsel. ECF No. 126-3 at 8. She also admitted sending Mr. Shuter and Mr. Glyn a January 14, 2022, press release about a lawsuit involving Mr. Klein. Id. These facts, which disclose what Ms. Oved was doing, preclude a finding by clear and convincing evidence that she redacted the text messages in bad faith to conceal her conduct.

Moreover, even if the redactions were done in bad faith, there is no basis for case-ending sanctions under the Court's inherent authority. At worst, the attempted redactions are at the margin of the proportional discovery in this case. See Fed. R. Civ. P. 26(b)(1). They do not materially affect the integrity of the judicial process in the same way as perjury, fraud on the court, or other conduct that warrants exercising the Court's inherent authority. Nor has Mr. Klein shown prejudice. He now knows the material that Ms. Oved sought to redact.[11] There is plenty of time in the discovery period for him to develop it. For all these reasons, striking Ms. Oved's pleadings is not an appropriate remedy under the Court's inherent authority.

Federal Rule of Civil Procedure 37(b)(2) also does not provide a basis for case-ending sanctions.[12] It says, “If a party ... fails to obey an order to provide or permit discovery ... the court where the action is pending may issue further just orders.” Among the enumerated remedies is “striking pleadings in whole or in part.” Fed. R. Civ. P. 37(b)(2)(A)(iii). The rule also authorizes an award of reasonable attorney's fees against the disobedient party. Fed. R. Civ. P. 37(b)(2)(C). To impose case-ending sanctions under Rule 37(b)(2), the Court must “find (1) that the party exhibited a willful or bad faith failure to obey a discovery order; (2) that the moving party was prejudiced by that violation; and (3) that a lesser sanction would fail to punish the violation adequately and would not ensure future compliance with court orders.” Inmuno Vital, Inc. v. Telemundo Grp., Inc., 203 F.R.D. 561, 571 (S.D. Fla. 2001) (J. Moore). The party seeking sanctions bears the burden of proof. Deepgulf Inc. v. Moszkowski, 333 F.R.D. 249, 253 (N.D. Fla. 2019).

*6 Applying these principles, the Second Sanctions Motion must be denied. First, as already explained, there is insufficient evidence of bad faith. Second, Mr. Klein does not identify which order Ms. Oved failed to obey. The sole discovery order relating to Mr. Klein's requests for production was docket entry 138, which required Ms. Oved to produce documents responsive to Mr. Klein's Requests for Production by May 1, 2023. Mr. Klein concedes that he received approximately 20,000 documents on May 1. ECF No. 169-1 ¶17. Mr. Klein has not articulated a developed theory for how Ms. Oved did not comply with this Order. See Beres v. Daily Journal Corp., 0:22-CV-60123-WPD, 2022 WL 805733, at *6 n.6 (S.D. Fla. Mar. 8, 2022) (J. Dimitrouleas) (“arguments not supported and properly developed are deemed waived.”) (citation omitted). Third, even if the Order was disobeyed, Mr. Klein has not shown prejudice. Finally, he has not shown that lesser sanctions would be inadequate.

WHEREFORE, it is ORDERED that:

DONE and ORDERED in Chambers at West Palm Beach, Palm Beach County, in the Southern District of Florida, this 19th day of July 2023.