RICHARD HALL, Plaintiff, v. INSURANCE CORPORATION OF BRITISH COLUMBIA, Defendant Case No: 6:20-cv-1992-CEM-LHP United States District Court, M.D. Florida Filed November 14, 2023 Price, Leslie H., United States Magistrate Judge Order *1 This cause came on for consideration without oral argument on the following motions filed herein: MOTION: OPPOSED MOTION OF PLAINTIFF RICHARD HALL FOR SANCTIONS BY WAY OF ADVERSE INFERENCES AND AT THE COURT'S DISCRETION WHATEVER OTHER SANCTIONS THE COURT DETERMINES BECAUSE OF EXTENSIVE DISCOVERY MISCONDUCT, INCLUDING DELETING AND/OR WITHHOLDING EVIDENCE, SPOLIATION AND CONCEALMENT (Doc. No. 235) FILED: July 19, 2023 THEREON it is ORDERED that the motion is DENIED. MOTION: DEFENDANT INSURANCE CORPORATION OF BRITISH COLUMBIA'S MOTION TO STRIKE DECLARATIONS OF WESLEY MUSSIO, JOHN DI PAOLO, PAUL HORN AND EXCLUDE SAID DECLARANTS FROM TESTIFYING (Doc. No. 240) FILED: August 2, 2023 THEREON it is ORDERED that the motion is DENIED WITHOUT PREJUDICE as moot. I. INTRODUCTION Plaintiff Richard Hall, proceeding pro se, has filed a motion seeking sanctions against Defendant Insurance Corporation of British Columbia (“ICBC”), based on purported discovery violations and/or spoliation of evidence by ICBC during the pendency of this case. Doc. No. 235. ICBC opposes (Doc. Nos. 238–239), and Plaintiff has filed an authorized reply. Doc. No. 249. ICBC also seeks to strike several declarations submitted by Plaintiff in support of his motion, to which Plaintiff opposes. Doc. Nos. 240, 251. Both motions have been referred to the undersigned, and for the reasons discussed below, the motion for sanctions will be denied and the motion to strike denied as moot. II. RELEVANT PROCEDURAL HISTORY On June 11, 2020, Plaintiff instituted this action against ICBC in Florida state court, alleging violations of Florida's Civil Remedies and Criminal Practices Act, Fla. Stat. §§ 772.103(3), (4) (Counts I and II), tortious interference with a business relationship (Count III), common law conspiracy (Count IV), and intentional infliction of emotional distress (Count V). Doc. No. 1-2, at 3–29. On October 27, 2020, ICBC removed the matter to this Court under 28 U.S.C. §§ 1441(d), 1603(a), and 1603(b). Doc. No. 1. Plaintiff's claims relate to an insurance claim Plaintiff filed against ICBC for a November 2003 car accident Plaintiff was involved in while working in British Columbia, Canada. Id. The driver of the other vehicle involved in the accident — Donald Dove — was insured by ICBC. Id. Plaintiff contends that after filing his claim, ICBC engaged in a years-long “campaign of intimidation, fraud and life-altering intimidation” against Plaintiff, which included hacking into Plaintiff's computers and stalking him. Id. To say this case has had a long and tortured history would be a gross understatement. From the inception of this case until May 26, 2023, Plaintiff retained, and was represented by, no less than eight (8) different attorneys from four (4) different law firms. See, e.g., Doc. Nos. 130–36, 138–41, 144, 146. On January 26, 2023, while Plaintiff was still represented by counsel, the Court stayed this case due to Plaintiff's health issues. Doc. No. 207. The stay was lifted on May 25, 2023, and Plaintiff's counsel withdrew the following day, leaving Plaintiff to litigate this case pro se. Doc. Nos. 210, 212, 214. *2 Discovery in this case commenced on or about December 28, 2020, see Doc. No. 30, at 3 and Fed. R. Civ. P. 26(d)(1), and after several extensions of the relevant case management deadlines, discovery finally concluded on August 2, 2023. See Doc. Nos. 31, 163, 215. In other words, discovery was open in this case for over 27 months (excluding the four (4) month stay), and Plaintiff was represented by counsel for all but approximately two (2) months of that time. The case is presently scheduled for an in-person final pretrial conference on November 16, 2023, and for a bench trial before the Presiding District Judge on December 18, 2023. Doc. Nos. 267–69. Discovery in this case has been hotly litigated, with a majority of the discovery related proceedings occurring while Plaintiff was represented by counsel. See., e.g., Doc. Nos. 29, 37–38, 40–41, 43–44, 46, 50–53, 57, 63, 72–74, 79, 80–83, 86–88, 90–91, 93–94, 96–99, 106, 109–110, 113–115, 127, 143, 149, 151–154, 156, 161, 168, 170–171, 175–182, 185, 190, 194–195, 197. Several of the discovery disputes are relevant to the present motion, and a brief recitation of those disputes is therefore necessary. A. The September 2021 Motion to Compel On September 22, 2021, Plaintiff moved to compel ICBC to produce documents in response to Plaintiff's first request for production, which sought four (4) categories of documents: (1) documents relating to ICBC's or its investigators’ (including investigator Kenneth Carter's) communications with various individuals and entities, (2) documents relating to ICBC's or its investigators’ communications with any entity or individual located in the United States in connection with Plaintiff or his insurance claim, (3) all documents relating to the hacking or monitoring of Plaintiff's laptop computer or email accounts, and (4) documents sufficient to show the dates and purpose of any travel by any employee of ICBC, or anyone acting at ICBC's or Carter's direction, to or within the United States in furtherance of ICBC's investigation of Plaintiff or his insurance claim. Doc. No. 74. The motion to compel also sought all related metadata. Id. The parties submitted briefing and exhibits in support of their respective positions, and the Court ordered the parties to conduct an additional meet and confer. See Doc. Nos. 80–83, 88–89, 93. In the parties’ November 23, 2021 joint notice following the additional meet and confer, Plaintiff asserted that ICBC had not produced relevant documents, including documents in their native format, metadata relating to ICBC's investigations of Plaintiff, documents relating to ICBC's purported misconduct in Florida, and documents relating to ICBC's purported deletion of evidence. Doc. No. 93, at 2. Plaintiff further referenced ICBC's document productions made in June and August 2021 in response to his earlier Freedom of Information and Protection of Privacy Act (“FIPPA”) requests made in British Columbia, Canada, and specifically argued that the FIPPA productions demonstrated gaps in ICBC's production in this case, including “chunks of emails” and various email chains that were missing. Doc. No. 93-1, at 1–2, 6–9. In other words, Plaintiff has been aware since mid-2021 of apparent inconsistencies with the document production ICBC made in this case when compared to the document production ICBC made in response to the FIPPA requests in Canada. And most importantly, Plaintiff has been in possession of the FIPPA documents since that time. Following review of the parties’ submissions, the Court held a hearing on the motion on November 29, 2021. Doc. Nos. 89, 94–95. At the conclusion of the hearing, the Court granted in part and denied in part Plaintiff's motion, and ordered ICBC to produce within 14 days: (1) all native versions of documents previously produced; (2) all metadata for all responsive documents in ICBC's possession, custody, and control; (3) a complete and full production of all responsive documents, including emails and correspondence (also including native format); (4) responsive documents in ICBC's possession, custody, and control related to matters regarding Plaintiff, ICBC, and Pacific Law Group (“PLG”), exclusive of PLG's representation of Donald Dove; (5) an affidavit from ICBC's corporate representative detailing the steps ICBC has taken to date to produce responsive documents; and (6) a privilege log. Doc. No. 96, at 3–4.[1] The Court further ordered ICBC to amend its responses to clarify and provide a fulsome explanation as to whether any documents did not exist, had already been produced, or could not be produced. Id., at 4.[2] B. The January 2022 Motion to Compel *3 ICBC subsequently complied — at least in part — with the Court's November 29, 2021 Order. See Doc. Nos. 97–99. However, on January 26, 2022, Plaintiff filed another motion to compel and for sanctions, arguing that ICBC failed to produce documents in accordance with the Court's November 29, 2021 Order. Doc. No. 106. In particular, Plaintiff asserted that ICBC had not yet turned over responsive documents related to PLG, that ICBC's productions to date “still contain alarming gaps and inconsistences,” and that ICBC had improperly deleted responsive records. Id., at 1–2. ICBC of course opposed (Doc. Nos. 108–110), and after reviewing the motion, response, and Plaintiff's authorized reply (Doc. No. 113), the Court granted in part and denied in part Plaintiff's motion. Doc. No. 114. In particular, the Court ordered ICBC to produce within fourteen days all documents related to matters regarding Plaintiff, ICBC, and PLG, exclusive of PLG's representation of Donald Dove, and if no such documents existed, to provide a detailed amended response. Doc. No. 114, at 15. The Court also ordered ICBC to produce the electronic copy (with deletions) of a specific claims file. Id. In making these rulings, the Court addressed Plaintiff's representations concerning a database restore that Plaintiff contended ICBC could perform on its computers systems in order to recover deleted documents. Doc. No. 114, at 11–13; see also Doc. No. 113, at 2. The Court denied Plaintiff's request to force ICBC to perform the database restore, not only because Plaintiff's original requests for production did not encompass a request for a database restore, but also because Plaintiff failed to provide any legal authority for the request. Doc. No. 114, at 13. Notably, the Court nowhere stated that Plaintiff was foreclosed from renewing this request in subsequent requests for production, but rather the February 23, 2022 Order was limited to the original requests and original motion to compel. Id. The Court also denied Plaintiff's request for sanctions, but strongly advised ICBC that any further failures to comply with the Court's discovery orders would subject ICBC and/or its counsel to sanctions under Federal Rule of Civil Procedure 37(b). Id., at 14. Following the Court's issuance of the February 23, 2022 Order, no further filings were made by any party with respect to these discovery disputes. And Plaintiff did not renew his request for a database restore (either through additional discovery requests or a motion to compel). But that does not mean that discovery came to a standstill. To the contrary, over the ensuing year, the parties litigated over the issuance of various letters rogatory (some opposed, some not), see Doc. Nos. 115, 118, 180, 185, 190, 194–195, 201–202, 244, fought over the terms of a protective order, see Doc. Nos. 153–154, 156, 161, 170, 176–177, and debated over the timing of Plaintiff's deposition. See Doc. Nos. 168, 171, 175. ICBC also moved to compel Plaintiff to respond to discovery, which the Court granted. See Doc. Nos. 127, 142, 176, 241, 247.[3] In other words, as previously noted, the parties have vigorously litigated this case, including discovery, over the nearly three years this case has been pending in this Court. But what the parties did not do, is argue to the Court that the discovery ICBC was ordered to produce by way of the November 29, 2021 or February 23, 2022 Orders (Doc. Nos. 96, 114) either did not occur or was otherwise deficient. That is, until Plaintiff sought to resurrect these discovery requests through the present motion for sanctions, filed on July 19, 2023, two weeks before the close of an expansive discovery period. Doc. No. 235. Against this backdrop, the Court now turns to the parties’ motions. III. PLAINTIFF'S MOTION FOR SANCTIONS A. Applicable Legal Standards *4 While somewhat unclear, it appears that Plaintiff is seeking sanctions against ICBC in the form of various adverse inferences against ICBC and cites to several legal theories in support. Doc. No. 235, at 21–25.[4] 1. The Court's Inherent Authority and Spoliation First, Plaintiff references the Court's inherent authority to sanction litigants for spoliation of evidence. Id., at 21. The Court's inherent authority “is both broader and narrower than other means of imposing sanctions.” Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991). The Court may exercise this authority “to sanction the willful disobedience of a court order, and to sanction a party who has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1223 (11th Cir. 2017) (quoting Marx v. Gen. Revenue Corp., 568 U.S. 371, 382 (2013)). While other sanction mechanisms only reach certain individuals or conduct, “the inherent power extends to a full range of litigation abuses” and “must continue to exist to fill in the interstices.” Chambers, 501 U.S. at 46. Sanctions under the Court's inherent authority may include monetary penalties, adverse inferences, and the striking of claims or defenses. See, e.g., Swofford v. Eslinger, 671 F. Supp. 2d 1274, 1280 (M.D. Fla. 2009); Barash v. Kates, 585 F. Supp. 2d 1368, 1371 (S.D. Fla. 2008); Bernal v. All Am. Inv. Realty, Inc., 479 F. Supp. 2d 1291, 1338 (S.D. Fla. 2007). The Court must exercise its inherent authority with “restraint and discretion.” Chambers, 501 U.S. at 44. To justify its use, “the party moving for sanctions must show subjective bad faith.” Hyde v. Irish, 962 F.3d 1306, 1310 (11th Cir. 2020). “This standard can be met either (1) with direct evidence of ... subjective bad faith or (2) with evidence of conduct so egregious that it could only be committed in bad faith.” Id. (internal quotation marks and citation omitted). “Bad faith exists when the court finds that a fraud has been practiced upon it, ... 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.” Allapattah Servs., Inc. v. Exxon Corp., 372 F. Supp. 2d 1344, 1373 (S.D. Fa. 2005). “Evidence of recklessness alone won't suffice.” Hyde, 962 F.3d at 1310. Plaintiff bases his request for sanctions in part on his claim that ICBC engaged in spoliation and/or destruction of evidence. Spoliation is “defined as the destruction of evidence or the significant and meaningful alteration of a document or instrument.” Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1308 (11th Cir. 2003) (quotation marks and citation omitted). When deciding whether to impose sanctions based on spoliation of evidence, a number of factors are relevant: “(1) whether the party seeking sanctions was prejudiced as a result of the destruction of evidence and whether any prejudice could be cured, (2) the practical importance of the evidence, (3) whether the spoliating party acted in bad faith, and (4) the potential for abuse if sanctions are not imposed.” ML Healthcare Servs., LLC v. Publix Super Mkts., Inc., 881 F.3d 1293, 1307 (11th Cir. 2018) (citing Flury v. Daimler Chrysler Corp., 427 F.3d 939, 945 (11th Cir. 2005)). “Spoliation sanctions—and in particular adverse inferences—cannot be imposed for negligently losing or destroying evidence.” Tesoriero v. Carnival Corp., 965 F.3d 1170, 1184 (11th Cir. 2020). “Indeed, ‘an adverse inference is drawn from a party's failure to preserve evidence only when the absence of that evidence is predicated on bad faith.’ ” Id. (quoting Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997)). And bad faith “in the context of spoliation, generally means destruction for the purpose of hiding adverse evidence.” Id., (quoting Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015)). Moreover, “even if bad faith were shown, the court's decision not to impose sanctions would be appropriate if ‘the practical importance of the evidence’ was minimal.” Id., (quoting Flury, 427 F.3d at 945). 2. Federal Rule of Civil Procedure 37(b) *5 Second, Plaintiff references Federal Rule of Civil Procedure 37, which authorizes sanctions for a party's failure to comply with a court order. Doc. No. 235, at 21–22. “Rule 37 authorizes a district court to impose such sanctions ‘as are just’ against a party that violates an order compelling discovery..... District courts enjoy substantial discretion in deciding whether and how to impose sanctions under Rule 37.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1997) (first citing Fed. R. Civ. P. 37(b)(2), then citing Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir.), cert. denied, 510 U.S. 863 (1993)). Rule 37(b) “authorizes a panoply of sanctions for a party's failure to comply with a discovery order.” Wyndham Vacation Ownership, Inc., v. Clapp Bus. Law, LLC, Case No. 6:19-cv-756-Orl-41GJK, 2020 WL 3266059, at *2 (M.D. Fla. Apr. 2, 2020) (citation omitted). Those include: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. Fed. R. Civ. P. 37(b)(2)(A). Strict adherence to Rule 37 is necessary to prevent “parties from flouting discovery orders.” Reed v. Fulton Cty. Gov't, 170 F. App'x 674, 675 (11th Cir. 2006) (per curiam) (internal quotation marks and citation omitted).[5] “[S]anctions are imposed [under Rule 37] not only to prevent unfair prejudice to the litigants but also to ensure the integrity of the discovery process.” Aztec Steel Co. v. Fla. Steel Corp., 691 F.2d 480, 482 (11th Cir. 1982) (per curiam). However, the extent of the sanctions must be “reasonable in light of the circumstances.” Carlucci v. Piper Aircraft Corp., Inc., 775 F.2d 1440, 1453 (11th Cir. 1985). 3. Federal Rule of Civil Procedure 37(e) Third and finally, because much of the discovery Plaintiff claims has been withheld and/or destroyed is electronically stored information (“ESI”), Plaintiff also cites to Federal Rule of Civil Procedure 37(e), which governs sanctions relating to the spoliation of ESI. Doc. No. 235, at 22–23. That rule provides as follows: If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. Fed. R. Civ. P. 37(e). Thus, before the Court can impose sanctions for the spoliation of ESI, four conditions must be met: (1) “the ESI should have been preserved in anticipation or conduct of the litigation”; (2) “the ESI is lost or destroyed”; (3) “the loss of the ESI is due to the party's failure to take reasonable steps to preserve the ESI”; and (4) “the ESI cannot be restored or replaced.” Westgate Resorts, Ltd. v. Reed Hein & Assocs., LLC, Case No. 6:18-cv-1088-GAP-DCI, 2021 WL 4428753, at *4 (M.D. Fla. Mar. 25, 2021), objections overruled, 2021 WL 4428754 (M.D. Fla. Apr. 26, 2021) (quoting Sosa v. Carnival Corp., Case No. 18-20957-CIV-ALTONAGA/GOODMAN, 2018 WL 6335178, at *10 (S.D. Fla. Dec. 4, 2018)). “If any of the above questions are answered in the negative, then a motion for spoliation sanctions or curative measures must be denied.” Id. (citation and internal quotations omitted). *6 Further, “[t]o impose sanctions ... the court must find that the opposing party was prejudiced by the loss of the ESI.” Scarpati v. Fla. Highway Safety & Motor Vehicles, Case No. 6:20-CV-1571-WWB-LRH, 2021 WL 7501822, at *5 (M.D. Fla. Nov. 17, 2021) (quoting O'Berry v. Turner, Case No. 7:15-cv-00064-HL, 2016 WL 1700403, at *3 (M.D. Ga. Apr. 27, 2016)). As the party seeking sanctions, and on the facts here, the Court finds that Plaintiff bears the burden of establishing prejudice. Id.; see also Reed v. Royal Caribbean Cruises, Ltd., Case No. 19-24668-CIV, 2021 WL 515624, at *4 (S.D. Fla. Feb. 11, 2021) (“[P]ost-2015 [Rule 37] amendment, ESI cases ... suggest the burden remains on the movant to establish the existence of the spoliated evidence.”); Roberson v. USAA Cas. Ins. Co., Case No. 5:15-CV-454-OC-30PRL, 2016 WL 5864431, at *5 (M.D. Fla. Sept. 22, 2016) (placing burden on movant), report and recommendation adopted, Case No. 5:15-CV-454-OC-30PRL, 2016 WL 5846763 (M.D. Fla. Oct. 6, 2016). Notably, “there can be no request for spoliation without establishing that the evidence is lost or unavailable.” Askan v. Faro Techs. Inc., Case No. 6:21-cv-1366-PGB-DCI, 2021 WL 9598215, at *2 (M.D. Fla. Nov. 12, 2021). B. Analysis Plaintiff's motion, which includes 799 pages of exhibits, as well as an additional 247 pages of exhibits attached to his reply, primarily focuses on ICBC's alleged continued failure to produce documents that the Court ordered ICBC to produce in either the November 29, 2021 Order or February 23, 2022 Order, as well as allegations that ICBC destroyed or tampered with documents (particularly invoices from Kenneth Carter and various audio recordings). Doc. No. 235, at 5–20. More specifically, Plaintiff contends that ICBC: (1) deleted two “highly responsive and incriminating emails” from its production, which were relevant to ICBC's then-pending motion to dismiss for lack of subject matter jurisdiction (Id., at 5); (2) withheld “key documents” from a “Correspondence Pack,” including Claims Work Management System (“CWMS”) adjuster notes, entries, and email chains relating to ICBC's retention of Kenneth Carter, as well as correspondence with entities in the United States, including Allstate insurance (Id., at 6–7); (3) destroyed and/or tampered with invoices showing payments ICBC made to Kenneth Carter, specifically two invoices that were “torn in half,” with such invoices coinciding with dates that Hall's phone was allegedly hacked (July 13, 2004), and that Hall's house was allegedly broken into, his laptop hacked, and his email accessed (September 17, 2004) (Id., at 7–8); (4) failed to produce documents by a March 5, 2021 deadline the Court ordered as part of the jurisdictional discovery in this case (Id., at 8–11; see also Doc. No. 62); (5) lost and/or destroyed audio recordings (what Plaintiff refers to as “wire-tappings”) of several phone calls between investigator Kenneth Carter and persons doing business with Plaintiff (Id., at 11–13); (6) failed to produce additional “missing gaps” of emails and documents from the period December 7-22, 2016, including a December 16, 2016 FIPPA request made by David Eby on behalf of Plaintiff and all responses thereto (Id., at 13–15); (7) failed to produce missing emails and documents for the time period March 12, 2013 to April 9, 2013 (Id., at 16–17); (8) failed to produce additional documents from ICBC's Correspondence Pack between May 31, 2013 and April 23, 2014 (with Plaintiff embedding a demand that ICBC be required to perform a database restore) (Id., at 17–18); *7 (9) failed to produce another gap of documents from ICBC's Correspondence Pack between September 5, 2017 and March 7, 2018, and that ICBC lied in its July 18, 2023 responses to Plaintiff's additional requests for production when ICBC stated it had no further documents to produce (Id., at 19); (10) wrongfully withheld copies of ICBC's Special Investigation Unit (“SIU”) documents, including notes of witness interviews (Id.); (11) withheld metadata (with Plaintiff embedding another request for a full database restore) (Id., at 19–20); (12) failed to include Ken Carter or his firm Action Pacific in ICBC's search terms when searching emails and electronic discovery (Id., at 20); and finally (13) that ICBC filed false court documents in the Courts of British Columbia in an effort to avoid complying with the Court's discovery orders in this case (Id.).[6] In response, ICBC argues that Plaintiff's motion should be denied in its entirety because ICBC has already produced all discovery in its possession, custody, and control and complied in full with the Court's November 29, 2021 and February 23, 2022 discovery orders. Doc. No. 238. ICBC further argues that Plaintiff's motion is based on speculation and assorted irrelevant anecdotes, attempts to tie ICBC to other scandals in the British Columbia government, and relies upon declarations made by biased witnesses with no personal knowledge of the present litigation. Id. Upon review of Plaintiff's motion and reply, ICBC's response, and all exhibits attached thereto, the Court finds that Plaintiff's motion is due to be denied for several reasons. 1. The Motion is Untimely Plaintiff seeks sanctions under Federal Rule of Civil Procedure 37 for failure to comply with various discovery orders, and for violations of Rule 37(e). “Rule 37 does not expressly state a time limitation upon which a party must file a motion for sanctions; however, an unreasonable delay will generally result in a waiver of the motion.” United States v. Stinson, Case No. 6:14–cv–1534–Orl–22TBS, 2016 WL 8488241, at *5 (M.D. Fla. Nov. 22, 2016) (citing Brandt v. Vulcan, Inc., 30 F.3d 752, 756 (7th Cir. 1994)). “The timeliness of a motion for sanctions depends on such factors as when the movant learned of the discovery violation, how long he waited before bringing it to the court's attention, and whether discovery has been completed.” Id. (citing Long v. Howard Univ., 561 F. Supp. 2d 85, 91 (D.D.C. 2008)). Based on this standard, the Court finds that Plaintiff's motion is untimely to the extent it is premised on sanctions under Rule 37. *8 The crux of Plaintiff's motion is that ICBC engaged in numerous discovery violations, and specifically failed to comply with the Court's November 29, 2021 and February 23, 2022 Orders. However, Plaintiff did not file the present motion until July 19, 2023, more than 16 months after the Court's last discovery order. Plaintiff provides no explanation for this delay. And what is more troubling is that the issues Plaintiff now complains of were addressed in the Court's prior Orders, including the purported gaps in produced correspondence, gaps in email productions, a requested database restore, and comparisons of ICBC's productions during the FIPPA process (the last production occurring in August 2021) to ICBC's productions here. See Doc. Nos. 96, 114. Since February 23, 2022, Plaintiff raised no further concerns with ICBC's discovery compliance and filed no new motions to compel discovery. Plaintiff was therefore well aware of the alleged discovery violations in 2021 and 2022, he addressed them in previously resolved motions to compel, but then waited until July 19, 2023 to seek sanctions based on these same alleged violations, after discovery had, in large part, been completed. Applying these facts to the applicable legal standards, to the extent Plaintiff's motion is brought under Rule 37, the Court finds Plaintiff's motion untimely and due to be denied.[7] See, e.g., Schumann v. Collier Anesthesia, P.A., Case No. 2:12-cv-347-FtM-29CM, 2017 WL 1323723, at *5 (M.D. Fla. Apr. 6, 2017) (denying as untimely a Rule 37 motion for sanctions filed three years after the movant learned of the violation of a discovery order); Carasquero v. Intrepid Glob. Imaging 3D, Inc., Case No. 3:08-cv-241-J-34JRK, 2010 WL 11507477, at *13 (M.D. Fla. July 2, 2010) (denying motion for sanctions where plaintiff did not raise alleged discovery violations until after discovery closed). See also Steed v. EverHome Mortg. Co., 308 F. App'x 364, 371 (11th Cir. 2009) (finding no abuse of discretion in declining to impose sanctions for discovery violations where party did not move to compel, but instead “waited and filed a motion for sanctions, contributing to the problem.” (internal citation omitted)). See also Brandt v. Vulcan, Inc., 30 F.3d 752, 756 (7th Cir. 1994) (observing that, in the context of Rule 37(b), an “unreasonable delay” standard applies even in the absence of a specified time limit); Shamis v. Ambassador Factors Corp., 34 F. Supp. 2d 879, 886 (S.D.N.Y. 1999) (“While Rule 37 does not establish any time limits within which a motion for sanctions must be filed, unreasonable delay may render such motions untimely”). 2. Plaintiff Has Not Established Bad Faith Plaintiff also seeks sanctions under the Court's inherent authority, and under that standard, his motion would be timely. “A motion for sanctions under the court's inherent power is timely if it is filed before entry of the court's final order.” Peer v. Lewis, 606 F.3d 1301, 1315, n. 10 (11th Cir. 2010) (citing 2 James Wm. Moore et al., Moore's Federal Practice § 11.41[6] (3d ed. 2010)). Plaintiff's case is scheduled for a bench trial on December 18, 2023, thus no final order has yet been entered. However, as noted above, in order to justify sanctions under the Court's inherent authority, “the party moving for sanctions must show subjective bad faith.” Hyde, 962 F.3d at 1310. And on this point, Plaintiff fails. While Plaintiff makes extensive claims against ICBC for a host of misdeeds, the plain and simple fact remains that he has not demonstrated that ICBC has acted in bad faith in regards to its discovery conduct in this case. There is no evidence of any fraud practiced upon this Court (the allegations of fraudulent statements made in the Courts of British Columbia do not suffice, see Doc. No. 235, at 20), there is no evidence that ICBC has knowingly raised a frivolous argument or delayed or disrupted the litigation with respect to its discovery conduct, nor is there any evidence that ICBC has taken actions to hamper the enforcement of a court order.[8] See Allapattah Servs., Inc., 372 F. Supp. 2d at 1373. Rather, what Plaintiff complains of is normal discovery behavior — Plaintiff served discovery requests, ICBC objected and litigated over its obligations to respond, the Court resolved the issues, and ICBC ultimately complied. *9 As ICBC argues — and provides declarations in support — it has produced all responsive documents, including metadata, in its possession, custody, and control. Doc. No. 238, at 5. See also Declaration of Brenda Adlem (“Adlem Dec.”), Doc. No. 239, ¶¶ 4–5; Doc. No. 239-1. Any gaps in correspondence or emails, or the absence of any metadata is due to the fact that it simply does not exist. Doc. No. 238, at 5; Adlem Dec., ¶¶ 4–5; Doc. No. 239-1. And to the extent that ICBC's productions in response to Plaintiff's FIPPA requests have produced materials that appear differently from those ICBC produced in this case, ICBC represents that the FIPPA database is a third-party application, and “the information can come through differently than as pulled from the CWMS database or the paper claims file.” Doc. No. 238, at 5; Adlem Dec., ¶ 6; Doc. Nos. 239-2, 239-3. Moreover, as ICBC previously explained when litigating the prior motions to compel, Plaintiff's claim was handled primarily via a paper file, which has been produced to Plaintiff. Thus, to the extent any emails are missing from an electronic copy, they were produced in the paper copy. Doc. No. 238, at 5–6; Adlem Dec., ¶ 5. And, contrary to Plaintiff's assertions, ICBC did utilize the search terms of “Ken Carter,” “Kenneth Carter,” and “Action Pacific” in conducting its ESI discovery searches. Doc. No. 238, at 6–7; Adlem Dec., ¶ 9. Other than rote speculation, conspiracy theories, and baldly claiming that ICBC is lying to the Court, Plaintiff points to nothing to defeat ICBC's representations. Instead, Plaintiff unsuccessfully attempts to tie events such as a money laundering scandal within British Columbia's Games Society, and the murders and disappearances of women on Highway 19 in British Columbia to this case. Doc. No. 235, at 4, 17; Doc. No. 235-10, Doc. Nos. 235-56 through 235-58. Plaintiff also has submitted several declarations, each of which are based in large part on hearsay and speculation, and none of which provide any testimony that relates specifically to ICBC's conduct during the discovery process in this case. Doc. Nos. 235-1, 235-3, 235-8, 235-9, 235-19, 235-27. To put a finer point on it, each of these declarations discuss events that may or not may relate to Plaintiff's underlying claims, but none of them provide any information about whether or not ICBC destroyed or tampered with evidence and/or refused to provide materials during the discovery process — the acts upon which Plaintiff predicates his motion for sanctions.[9] Thus, assuming for the moment that these declarations constitute admissible evidence, they do not come close to establishing that ICBC violated the Court's discovery orders or engaged in any bad faith conduct.[10] *10 Plaintiff also points to various emails and other documents that have been produced and argues — without any evidence in support — that there are missing documents. For example, where ICBC's CWMS notes reference interviewing an ex-girlfriend of Plaintiff, he speculates that documents relating to that interview must exist and should have been turned over during discovery. Doc. No. 235, at 19; Doc. No. 235-66. And where there are gaps in time between CWMS entries and/or emails, Plaintiff speculates that there must be additional entries and/or emails during that gap in time that have not been produced. Doc. No. 235, at 6–11, 13–19. But speculation that documents must exist is not enough to show that ICBC engaged in subjective bad faith such that sanctions are warranted. And again, Plaintiff's silence since February 23, 2022 as to these alleged discovery violations, particularly when Plaintiff has been in possession of the discovery (including the FIPPA productions) for years, weighs against any finding of bad faith against ICBC.[11] See Guy Mitchell v. Dixie Transp., Inc., Felix Milo Daley, & Grange Indem. Ins. Co., Case No. 1:16-CV-336-MLB, 2021 WL 12104810, at *2 (N.D. Ga. Apr. 22, 2021), reconsideration denied sub nom. Mitchell v. Dixie Transp., Inc., Case No. 1:16-CV-336-MLB, 2021 WL 12104817 (N.D. Ga. June 29, 2021) (denying motion for sanctions where the only alleged basis was the movant's own speculation); White v. Brenner, Case No. 6:10-CV-134-ORL-28, 2011 WL 4633783, at *8 (M.D. Fla. Aug. 30, 2011), report and recommendation adopted, No. 6:10-CV-134-ORL-28, 2011 WL 4633703 (M.D. Fla. Oct. 5, 2011) (denying motion for sanctions where the court was left to speculate as to the acts of bad faith). 3. Plaintiff Has Not Shown Prejudice But even if Plaintiff were able to establish that his motion was timely filed, and even if Plaintiff were also able to establish that ICBC acted in bad faith and intentionally failed to comply with the Court's discovery orders, Plaintiff's motion would still fail because Plaintiff has not demonstrated any prejudice. See ML Healthcare Servs., LLC, 881 F.3d at 1307 (when deciding whether to levy sanctions for spoliation of evidence, courts consider as a factor “whether the party seeking sanctions was prejudiced as a result of the destruction of evidence and whether any prejudice could be cured”); Aztec Steel Co., 691 F.2d at 482 (“[S]anctions are imposed [under Rule 37] not only to prevent unfair prejudice to the litigants but also to ensure the integrity of the discovery process.”). See also Fed. R. Civ. P. 37(e)(1) (authorizing sanctions for spoliation of ESI “upon finding prejudice to another party from loss of the information.”). Beyond speculation and conspiracy theories tied to events that have no bearing on the present case, Plaintiff's allegations of prejudice are conclusory at best. While he asserts that various documents that were not produced and/or destroyed are critical, he does not explain how or why, rather he appears to argue that the prejudice is automatic.[12] Not only is this argument insufficient, but more importantly, Plaintiff admits that he has been in possession of all of the allegedly missing and/or destroyed documents for years, and Plaintiff does not argue that he has been hampered in litigating his case as a result. *11 The documents at issue were produced to Plaintiff via several productions from ICBC in response to Plaintiff's FIPPA requests, with the last such production occurring in August 2021 – approximately two years prior to the filing of the present motion. See Doc. No. 235 at 3, 8–9, 17, and n. 5. Many of these documents Plaintiff attaches to his motion and reply. Thus, to now claim prejudice due to an absence of these materials quite simply defies logic.[13] See Carasquero, 2010 WL 11507477, at *13 (denying motion for sanctions because “[b]y waiting until after discovery closed to bring to light Defendants’ alleged discovery violations, the prejudice of which Plaintiffs complain, if any, was largely of their own making. Plaintiffs have now had the documents for approximately five months, further mitigating any prejudice that might arguably exist.”); Askan v. Faro Techs. Inc., Case No. 6:21-cv-1366-PGB-DCI, 2021 WL 9598215, at *2 (M.D. Fla. Nov. 12, 2021) (denying motion for sanctions under Rule 37(e) because plaintiff appeared to be in possession of the allegedly destroyed material; “there can be no request for spoliation without establishing that the evidence is lost or unavailable.”). See also Romero v. Regions Fin. Corp./Regions Bank, Case No. 18-22126-CV, 2019 WL 2866498, at *7 (S.D. Fla. July 3, 2019) (denying request for spoliation sanctions where assertions of prejudice were speculative, and plaintiff could still prove his case through other evidence that had already been obtained); Burns v. Medtronic, Inc., Case No. 8:15-CV-2330-T-17TBM, 2017 WL 11633269, at *6 (M.D. Fla. Aug. 9, 2017) (finding spoliation sanctions under Rule 37(e)(1) unwarranted where plaintiff's blanket and conclusory assertions of prejudice were speculative, plaintiff had ample opportunity to depose the custodians and decision-makers in the case, and plaintiff failed to identify any crucial piece of information that had not been produced); Living Color Enter., Inc. v. New Era Aquaculture, Ltd., Case No. 14-CV-62216, 2016 WL 1105297, at *5 (S.D. Fla. Mar. 22, 2016) (finding no prejudice to the plaintiff under Rule 37(e)(1) regarding destruction of text messages where the content did not appear relevant based on the defendant's credible description, and there was other preserved information sufficient to meet the plaintiff's needs).[14] In sum, Plaintiff's motion is in large part untimely. And to the extent it is not untimely, Plaintiff has failed to demonstrate that ICBC violated any discovery orders, acted in bad faith, or that Plaintiff suffered any prejudice. Rather, it seems what Plaintiff really seeks is reconsideration of the Court's prior discovery orders and/or to reopen discovery — requests that are patently untimely and legally unsupported. As such, Plaintiff's motion for sanctions (Doc. No. 235) will be denied in its entirety. IV. ICBC'S MOTION TO STRIKE DECLARATIONS ICBC moves to strike the Declarations of Wesley Mussio, John Di Paulo, and Paul Horn, which Plaintiff submitted along with his motion for sanctions. Doc. No. 240. ICBC also seeks to have these individuals excluded as witnesses at the upcoming bench trial. Id. ICBC contends that Wesley Mussio's Declaration (Doc. No. 235-1) should be stricken because it “relies on character evidence, and is speculative, putative, and heavily motivated.” Doc. No. 240, at 3. And ICBC seeks to strike the Declarations of John Di Paulo and Paul Horn (Doc. Nos. 235-19 and 235-27) on the basis that Plaintiff did not timely disclose these individuals as witnesses, therefore to allow their Declarations and/or trial testimony to be considered would greatly prejudice ICBC. Id., at 4–5. *12 Plaintiff opposes ICBC's motion, arguing that these witnesses’ declarations are based on first-hand experience and knowledge, Attorney Mussio's testimony in particular goes toward ICBC's intent with respect to the underlying claims in this case, and that Plaintiff's delay in disclosing Paul Horn and John Di Paolo was due to ICBC's hiding and tampering with evidence. Doc. No. 251. Plaintiff also correctly points out that ICBC's motion is devoid of any legal authority in support, other than a lone citation to Federal Rule of Evidence 404. Id., at 7–9. Because the Court has denied Plaintiff's motion for sanctions, the Court will deny without prejudice ICBC's motion to strike as moot. Not only does ICBC fail to provide a memorandum of law in support, in violation of Local Rule 3.01(a), but the arguments ICBC raises are best left for a motion in limine and/or Daubert motion. And the Court notes that at least with respect to Paul Horn and John Di Paolo, a motion in limine to strike their testimony is already pending. See Doc. No. 261. V. CONCLUSION For the reasons set forth in this Order, Plaintiff's Motion for Sanctions (Doc. No. 235) is DENIED, and ICBC's Motion to Strike Declarations of Wesley Mussio, John Di Paolo, and Paul Horn (Doc. No. 240) is DENIED WITHOUT PREJUDICE AS MOOT. DONE and ORDERED in Orlando, Florida on November 14, 2023. Footnotes [1] The Court also found waived all ICBC objections save those based on the attorney-client privilege, attorney work product, and anticipation of litigation. Doc. No. 96, at 3. [2] In that same Order, the Court denied Plaintiff's motion with regard to his request for documents related to PLG's representation of Donald Dove, and denied ICBC's motion to quash Plaintiff's interrogatories (Doc. No 90). Doc. No. 96, at 5. [3] The Court also denied ICBC's request to compel Plaintiff to comply with subpoenas duces tecum directed at various third parties. Doc. Nos. 242, 248. [4] Although Plaintiff mentions contempt and default “at the Court's discretion,” Doc. No. 235, at 1, under the conclusion section of his motion, Plaintiff only requests that the Court “find that adverse inferences be drawn against Defendant, ICBC,” and any other sanctions and relief the Court deems appropriate. Id., at 25. As such, the Court does not find that Plaintiff has explicitly requested the sanction of default, and therefore does not address that specific sanction any further. In any event, “the severe sanction of a default judgment is appropriate only as a last resort, when less drastic sanctions would not ensure compliance with the court's orders.” Vinson v. The Tree House, LLC, Case No. 8:22-cv-1928-WFJ-SPF, 2023 WL 6292490, at *3 (M.D. Fla. Aug. 7, 2023) (citing Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993)). [5] Unpublished opinions of the Eleventh Circuit are cited as persuasive authority. See 11th Cir. R. 36–2. [6] Plaintiff also spends substantial portions of his motion accusing ICBC of deleting evidence and other alleged wrongdoings that occurred years prior to the filing of the present lawsuit, and in other legal matters in other jurisdictions, and attaches numerous exhibits in support of these accusations. See, e.g., Doc. Nos. 235, at 2–4; 235-1; 235-10; 235-12; 235-55; 235-56; 235-57; and 235-58. In addressing Plaintiff's motion for sanctions, the Court only considers ICBC's conduct in this case, and Plaintiff has provided no legal authority even suggesting that the references to other matters would provide a basis to sanction ICBC in this case. Accordingly, the Court gives these arguments by Plaintiff no further consideration — other than to the extent such evidence goes to the question of prejudice – and instead focuses on ICBC's conduct during the discovery process here. [7] The four (4) month stay of this case does not render Plaintiff's motion timely, as even removing that four (4) month period, Plaintiff did not raise any issues concerning ICBC's discovery conduct for more than a year after the Court's last discovery order, and less than two (2) weeks before the close of discovery. [8] The Court is unpersuaded by Plaintiff's reference to a January 19, 2022 letter from several attorneys in British Columbia, who opine on the issue of whether a litigation privilege continues to exist over certain PLG documents. See Doc. No. 235, at 15, n. 31; Doc. No. 235-48 (Ex. 50). The issue of privilege was addressed by the parties, and the Court ruled on the issue on November 29, 2021 and again on February 23, 2022. Notably, the Court's last order issued one month after Plaintiff's counsel received this letter. Not only is this letter not authenticated, and therefore its admissibility is in question, but Plaintiff provides no explanation for why he chose not to relitigate this issue at any point in time before the present motion for sanctions – despite the Court's invitation to do so. See Doc. No. 114, at 10. [9] For example, the Declaration of Wesley Mussio, an attorney practicing in British Columbia, provides Attorney Mussio's opinions on how ICBC handles insurance claims in general, including alleged wrongdoings such as those identified in Plaintiff's Complaint. Doc. No. 235-1. Attorney Mussio also opines about ICBC's CWMS notes and how they are generally not alterable. Id. But he does not, however, address ICBC's conduct during the discovery phase of this case. Similarly, the Declaration of Thomas Harding, another British Columbia attorney, contains testimony about ICBC's litigation practices and the CWMS notes system in general, but again does not provide any testimony as to whether ICBC refused to disclose and/or destroyed evidence in this case. Doc. No. 235-3. The Declarations of Sydney Garret Lapan and Derek Alan Sing, both computer forensic experts, provide opinions as to whether Plaintiff's laptop was hacked in 2004, but neither provide any testimony or opinions concerning whether ICBC engaged in discovery violations in this case. Doc. Nos. 235-8, 235-9. And the Declarations of Paul Horn and John Di Paolo discuss the events that form the basis of Plaintiff's complaint (the majority of which occurred more than a decade prior to the inception of this lawsuit) and provide opinions as to same – neither declaration speaks to whether ICBC committed any of the discovery violations Plaintiff now claims. Doc. Nos. 235-19, 235-27. Notably, while John Di Paolo's Declaration discusses the allegedly tampered with invoices from Kenneth Carter, he also states that ICBC provided another copy of the invoices in its FIPPA production. And other than noting that copies of two of the invoices may not be complete, Mr. Di Paolo merely speculates that ICBC tampered with the invoices – nothing more. Doc. No. 235-27, ¶¶ 53–70. [10] The only category of materials that gave the Court any pause is Plaintiff's reference to the audio recordings of Kenneth Carter's interviews with various witnesses. It appears from the evidence submitted that such audio recordings did, at one time, exist, see Doc. Nos. 235-34 through 235-37, but there is no evidence that ICBC ever had them in its possession, or that ICBC destroyed them. See Adlem Dec., ¶ 7. Rather, Plaintiff merely speculates that ICBC failed to produce and/or destroyed the recordings. See Doc. No. 235, at 11–13. But the evidence Plaintiff submits on this point instead suggests that such recordings were in Kenneth Carter's possession (or in the possession of his employer, Action Pacific) and may not have been turned over to ICBC, and Plaintiff does not explain why he did not pursue discovery against Kenneth Carter, particularly since he has been aware of these recordings for years. See, Doc. Nos. 235-38 through 235-43, Doc. Nos. 249-9, 249-10, 249-11. Moreover, it is undisputed that Plaintiff is in possession of the transcripts of the interviews, and Plaintiff does not argue that the transcripts are incorrect or otherwise deficient, therefore the Court finds Plaintiff has not established that he suffered any prejudice, or that ICBC engaged in any bad faith conduct in this regard. [11] Plaintiff's embedded request for a full database restore is also not well taken. Plaintiff had ample time to renew this request during the discovery period and cannot use his motion for sanctions to reopen discovery for this purpose. [12] For example, Plaintiff argues that ICBC withheld certain jurisdictional discovery, which made the deposition of James DiCesare, an employee of ICBC, impossible to conduct, and hampered Plaintiff's ability to defend against ICBC's motion to dismiss for lack of subject matter jurisdiction. Doc. No. 235, at 5, 8–11. However, Plaintiff attaches and cites to numerous excerpts from DiCesare's lengthy March 19, 2021 deposition, see Doc. Nos. 235-15, 235-26, 235-30, 235-36, 235-54, 235-69, 249-7, never raised any issues with respect to that deposition (such as a motion to compel), and Plaintiff successfully defeated ICBC's motion to dismiss, see Doc. No. 173, thus Plaintiff's assertions of prejudice in this regard are not well taken. [13] By way of another example, Plaintiff points to the invoices from Kenneth Carter to ICBC, and that ICBC either did not produce all of the invoices, or produced versions that had been torn in half. But Plaintiff has had copies of these invoices since at least August 2021, and to the extent that these invoices are encompassed in Plaintiff's prior discovery requests, they were addressed in the Court's November 29, 2021 and February 23, 2022 Orders, and Plaintiff raised no further challenges as to these invoices until the present motion. [14] The Court further finds that Plaintiff has also failed to establish that sanctions are appropriate under Fed. R. Civ. P. 37(e)(2), which does not require a finding of prejudice, because Plaintiff has not shown that ICBC acted with any intent to deprive. See O'Berry v. Turner, Case No. 7:15-CV-00064-HL, 2016 WL 1700403, at *4 (M.D. Ga. Apr. 27, 2016) (“Unlike subsection (e)(1), subsection (e)(2) does not require a finding that the opposing party was prejudiced by the failure to preserve the electronically stored data. Prejudice is inferred by the court's finding of intent.”). As discussed above, Plaintiff has not presented any evidence beyond his own speculation that ICBC engaged in any bad faith or wrongful conduct during the discovery process, and this same absence of evidence defeats any argument that ICBC acted with an intent to deprive Plaintiff of any of the discovery materials in question.