LUCILLE RUBIN, as purported sole officer and director and a member of the Walter and Lucille Foundation, Inc., Plaintiff, v. RONALD L. RUBIN, individually and as member and director of the Walter and Lucille Rubin Foundation, Inc., and DARRELL (a/k/a DARYL) HORN, individually and as director of the Walter and Lucille Rubin Foundation, Inc., Defendants Case No. 21-cv-82014-MARRA/MATTHEWMAN United States District Court, S.D. Florida Signed February 08, 2022 Counsel Robert William Wilkins, Jones Foster PA, West Palm Beach, FL, Jonathan Galler, Gutter Chaves Josepher, Boca Raton, FL, for Plaintiff. Jacob Stephen Taylor, Clyde Snow & Sessions, Salt Lake City, UT, Joseph John Farina, Boyes, Farina & Matwiczyk, Palm Beach Gardens, FL, Steven Mark Katzman, Craig Alan Rubinstein, Katzman Wasserman Bennardini & Rubinstein, P.A., Boca Raton, FL, Benjamin Lawrence Reiss, Perlman, Bajandas, Yevoli & Albright, Coral Gables, FL, Kenneth Duane Lemoine, Kenneth D. Lemoine, P.A., West Palm Beach, FL, Oliver Max Birman, Gutterman Trial Group, Fort Lauderdale, FL, Paul Dewey Turner, Perlman, Bajandas, Yevoli & Albright, P.L., Fort Lauderdale, FL, for Defendant Ronald Rubin. Jacob Stephen Taylor, Clyde Snow & Sessions, Salt Lake City, UT, Joseph John Farina, Boyes, Farina & Matwiczyk, Palm Beach Gardens, FL, Benjamin Lawrence Reiss, Perlman, Bajandas, Yevoli & Albright, Coral Gables, FL, Kenneth Duane Lemoine, Kenneth D. Lemoine, P.A., West Palm Beach, FL, Oliver Max Birman, Gutterman Trial Group, Fort Lauderdale, FL, Paul Dewey Turner, Perlman, Bajandas, Yevoli & Albright, P.L., Fort Lauderdale, FL, Steven Mark Katzman, Katzman Wasserman Bennardini & Rubinstein, P.A., Boca Raton, FL, for Defendant Darrell Horn. Matthewman, William, United States Magistrate Judge ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S EXPEDITED MOTION TO COMPEL AND FOR SANCTIONS [DE 56] AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR EXTENSION OF TIME TO PRODUCE DISCOVERY [DE 68] *1 THIS CAUSE is before the Court upon Plaintiff/Counter-Defendant, Lucille Rubin's (“Plaintiff”) Expedited Motion to Compel and for Sanctions [DE 56] and Defendants/Counter-Plaintiffs Ronald L. Rubin, individually and as member and director of the Walter and Lucille Rubin Foundation, Inc., and Darrell (a/k/a Daryl) Horn, individually and as director of the Walter and Lucille Rubin Foundation, Inc.’s (collectively “Defendants”) Motion for Extension of Time to Produce Discovery [DE 68]. This matter was referred to the undersigned by the Honorable Kenneth A. Marra, United States District Judge. [DE 16]. Defendants have filed an expedited response [DE 69] to Plaintiff's motion, and there is no need for a response to Defendants’ motion. The motions are now ripe for review as the Court is considering them on an expedited basis. On January 3, 2022, Plaintiff served Plaintiff's First Request for Production to Defendant Ronald Rubin. According to the Motion, as of February 3, 2022, Defendant Rubin had completely failed to respond to the Requests for Production or produce any of the documents requested, even though the deadline for production was February 3, 2022. [DE 56 at 1]. Because Plaintiff's Expedited Motion for Temporary Restraining Order is scheduled for an evidentiary hearing on February 9, 2022, Plaintiff moved to compel the documents, so that she could ensure receipt on or before noon on February 8, 2022. Id. at 2. Plaintiff is also seeking an award of fees and costs pursuant to Fed. R. Civ. P. 37(a)(5)(a). Id. at 4. In response, Defendants assert that they produced certain documents one day late, on February 4, 2022. [DE 69 at 1]. They also argue that, given the procedural history of this case and all of the activity in the case, they need a 14-day extension to provide additional materials and direct the Court to their recently filed motion seeking said relief. Id. at 4. Defendants claim that Plaintiff is really seeking expediting discovery “under the guise of a motion to compel.” Id. Defendants have also filed a separate motion seeking additional time to respond to the discovery requests to which they have not yet responded. [DE 68]. They have provided several reasons for needing an additional 14 days to produce documents, as well as the Affidavit of Jake Taylor, Esq. [DE 68- 1] to support their position. The Court has carefully considered the relevant law, the motions and response, and the discovery requests at issue, as well the entire docket in this case. Based on the foregoing, it is hereby ORDERED as follows: 1. Plaintiff's Expedited Motion to Compel and for Sanctions [DE 56] is GRANTED IN PART AND DENIED IN PART. 2. Defendants’ Motion for Extension of Time to Produce Discovery [DE 68] is GRANTED IN PART AND DENIED IN PART. 3. The Court finds that Defendants failed to timely produce discovery in response to Plaintiff's Requests for Production. While Defendants assert their failure to timely produce discovery was the result of “a calendaring error” [DE 69] and “a negligent error” [DE 68], the fact is that Defendants did not timely produce discovery as required under the Rules. Defendants should have been compiling discovery, making arrangements to produce responsive documents, and preparing a fulsome written response to the requests for production during the 30-day period afforded them under the Rules. By waiting to the last minute and belatedly moving to extend their discovery due date and seeking to delay discovery, Defendants are violating the letter and spirit of the discovery rules. This is especially true in this case where an expedited evidentiary hearing is scheduled before United States District Judge Kenneth A. Marra. *2 4. In light of the evidentiary hearing set before Judge Marra tomorrow, February 9, 2022, Defendants are ORDERED to produce by 4:00 p.m. today all responsive documents to Plaintiff's Requests for Production Nos. 1, 2 and 3 and the corresponding metadata and ESI to Requests for Production Nos. 1, 2 and 3. The Court notes that Defendants attached Exhibit C to their motion [DE 68-1], which they assert demonstrates that discovery responsive to Requests for Production Nos. 1, 2 and 3 has been produced. However, Exhibit C is limited and does not appear to establish fulsome production of all documents, metadata, and ESI related to those three requests. Since the “Written Consent” is a hotly disputed issue in this case, Defendants are required to produce all responsive documents to requests 1, 2 and 3 in native format including all metadata and ESI; pdf format is insufficient. Plaintiff should be permitted to establish when and how the documents at issue were created, and Defendants’ production in native format with all metadata and ESI will help to supply the necessary information so that a fair resolution of this case can be achieved. The discovery sought by Plaintiff in Requests 1, 2 and 3 goes directly to the issue of the validity of the “Written Consent,” and Defendants should not be permitted to delay production of said discovery to Plaintiff's prejudice. This Court previously ordered that the deposition of Plaintiff proceed over Plaintiff's objection, and Defendants have taken Plaintiff's deposition and even seem to use the taking of that deposition in support of an argument to delay providing discovery to Plaintiff, which argument the Court flatly rejects. Discovery is a two-way street, and Defendants must timely produce the requested discovery, not hinder and delay the discovery process, especially when an evidentiary hearing is scheduled. 5. As to the balance of the Requests for Production at issue in Plaintiff's Motion to Compel [56] and in Defendants’ Response [DE 69] and Defendants’ Motion for Extension of Time [DE 68], the Court will allow Defendants seven (7) days from the date of this Order to provide full and complete responses to those discovery requests as well as to produce all documents and discovery material requested. If Defendants assert a privilege, they shall prepare and serve a proper and detailed privilege log as per our Local Rules within the same period of time. The Court will not allow any further discovery delays in this case. 6. The Court reserves jurisdiction to impose sanctions or cost-shifting under Rule 37 and the inherent power of the Court against Defendants. DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, in the Southern District of Florida, this 8th day of February, 2022.