GERMEL T. CABALLES, as Personal Rep of the Estate of SHERYLL GRACE DELFIN CABALLES, and GERMEL T. CABALLES, Individually, as Surviving Spouse and as Parent and Natural Guardian of S.G.D.C., a surviving minor child, S.G.D.C., a surviving minor child, S.G.D.C., a surviving minor child, and S.G.D.C., a surviving minor child, and SYMONE GABRIELLE DELFIN CABALLES, Plaintiffs, v. EAST LAKE R2G OWNER LLC, a Foreign Limited Liability Company, CIRCLE K STORES INC., a Foreign Profit Corporation, SHELL USA, INC. f/k/a SHELL OIL COMPANY, a Foreign Profit Corporation, SHELL OIL PRODUCTS COMPANY LLC, a Foreign Limited Liability Company, MOTIVA ENTERPRISES LLC, a Foreign Limited Liability Company, STILLWATER TECHNOLOGIES, INC., a Florida Corporation, FALL RIVER USTY LLC d/b/a PENN ENVIRONMENTAL SERVICES, a Florida Limited Liability Company, ELECTRICAL PETROLEUM SERVICES CORP., a Florida Corporation, NATIONAL OILWELL VARCO, L.P., a Foreign Limited Partnership, GILBARCO INC. d/b/a GILBARCO VEEDER-ROOT, a Foreign Profit Corporation, OPW FUELING COMPONENTS, LLC, a Foreign Limited Liability Company, GUARDIAN FUELING TECHNOLOGIES, LLC, a Florida Limited Liability Company, VALLEY TANK TESTING, L.L.C., a Florida Limited Liability Company, D&H UNITED FUELING SOLUTIONS, INC., a Foreign Corporation, LISA HERBOLSHEIMER BLACK, a Florida Citizen and Resident, PAULA ANTUNES, a Florida Citizen and Resident, and BRANDY MCCANN-MERILA, a Florida Citizen and Resident, Defendants. CASE NO.: 22-004014-CI-19 Pinellas County Filed October 17, 2023 SPECIAL MAGISTRATE REPORT AND RECOMMENDATIONS The undersigned was appointed pursuant to Fla. R. Civ. P. 1.490 and the Order Appointing Special Magistrate (“ORDER”), dated March 3, 2023, to serve as Special Magistrate in this case. The ORDER appointed the undersigned to serve as Special Magistrate for the purposes of: A. Resolving all discovery disputes as they arise in this cause; and, B. Handling any other matter as agreed upon by the parties. Plaintiffs and the applicable Defendant (Gilbarco) unsuccessfully attempted a “meet and confer” session prior to the scheduled hearing on these matters conducted by the Special Magistrate on October 11, 2023. More specifically, the Honorable Judge Thomas Ramsberger, on February 28, 2023, commencing at 2:00 p.m., ordered [pg. 13, line 25 – pg. 14, Line 23] that the parties meet and confer before filing any future motions.Judge Ramsberger, on page 14, beginning at line 20, specifically ordered that counsel make “a good faith effort as officers of the court to talk about the dispute before you have the time set in front of me.” Mr. Osgathorpe, Gilbarco’s Counsel, raised an issue at the hearing, alleging that Plaintiffs’ Counsel, Mr. Whitman, failed to comply with the Court’s meet and confer requirement. The record established by counsel at the October 11, 2023, hearing shows that the parties and counsel have worked together professionally and cooperatively in navigating an extremely dynamic factual and scientific discovery process that has addressed extremely complex legal and factual issues. Having reviewed the specific actions taken by all Counsel in this matter, the Special Magistrate recommends to the Court that, in light of the time sensitivity of the issues raised in Plaintiff’s Motion, the meet and confer requirements in this instance be waived. The Special Magistrate further finds that neither party or counsel engaged in gamesmanship or improper conduct in any way related to the meet and confer issue. Based upon the foregoing findings, the hearing proceeded and was conducted via Zoom before the undersigned on October 11, 2023, beginning at 3:30 p.m. The Notice of Hearing on Discovery Disputes Before Special Magistrate Gregory P. Holder was filed October 10, 2023 [Docket #183615371], identified the following matters for the Special Magistrate’s consideration: Plaintiffs’ Motion to Compel Gilbarco to Comply with the Terms of its Own Inspection Protocol and Produce Northstar CT Scan of the Subject Fuel Dispenser Obtained During September 20, 2023, Inspection (the “Motion to Compel”); and, Defendant, Gilbarco, Inc. d/b/a Gilbarco-Veeder Root’s Response in Opposition to Plaintiffs’ October 9, 2023, Motion to Compel. Having reviewed the record, pleadings, motions, and all Court filings, including the transcripts of proceedings, legal authority, and argument of Counsel for the parties, the Special Magistrate does hereby issue the following Analysis, Findings, and Recommendations to the Court: PLAINTIFFS’ MOTION TO COMPEL Plaintiff filed this Motion to Compel seeking Court order requiring that Defendant, Gilbarco, immediately produce the Northstar CT scan of the subject fuel dispenser obtained during the September 20, 2023, inspection. The Special Magistrate has considered the August 9, 2023, ESi Protocol – CT Scanning of Subject Dispenser which states that “Prior to the destructive testing at ATS, it is proposed that the dispenser be nondestructively CTR scanned at North Star Imaging Orlando, FL. This scan will not adversely impact any analysis or testing proposed in the ATS protocol and will document the condition of the dispenser and components prior to their alteration and destructive testing.” On page 2 of 2, ESi states that the “Work product consisting of CT scan data will be made available to all parties sharing in the cost of scanning.” The Plaintiffs’ Counsel has offered payment to Defendant Gilbarco, to share in the cost of this scanning and has requested a copy of the results of the scan which are now electronically available. After hearing argument from Counsel for the parties, the Special Magistrate recommends that Plaintiffs’ Motion be GRANTED and that Defendant, Gilbarco, be ORDERED to produce the NorthStar CT Scan Data to the Plaintiff (and any other party that agrees to participate in the cost of the scan). The data shall be produced to the parties sharing in the cost of this scan no later than October 20, 2023, which leaves at least one week for the parties and their experts to analyze the data in advance of the scheduled ATS inspection on October 30 and 31, 2023. The Special Magistrate specifically finds that the NorthStar CT Scan data serves as a “baseline” set of data regarding the Subject Fuel Dispenser which is critical in this litigation considering the concerns of the parties (and the Special Magistrate) that there could be damage or alteration to the Subject Fuel Dispenser during its packaging and transport between its prior storage location in Florida and the ATS facility in Georgia. The “baseline” data will be crucial to the parties, and their experts in completing their work at ATS and producing the data would be consistent with what the statements contained in the “Protocol – CT Scanning of Subject Dispenser” document drafted and circulated by Defendant Gilbarco [see, ESI Protocol – CT Scanning of Subject Dispenser dated August 9, 2023, page 2 of 2, line-item no. 3]. Finally, the Special Magistrate notes that Counsel for Defendant Gilbarco did not raise any issue of privilege associated with the NorthStar CT Scan Data that would prevent its disclosure. The Special Magistrate further finds that the Defendants, and more specifically Defendant Gilbarco will not suffer any prejudice resulting from the production of the NorthStar CT Scan Data at this time. ADDITIONAL DISCOVERY ISSUES At the hearing conducted October 11, 2023, the parties addressed the Plaintiffs’ Motion Seeking to Obtain and Amended Case Management Order as Recommended by the Special magistrate, and Plaintiff’s Request for Expanded Involvement of the Special Magistrate filed on October 10, 2023 [Docket Entry #183642866], scheduled for hearing before the Court on December 5, 2023, at 3:00 p.m. The Special Magistrate remains available to attend this hearing if ordered or requested by the Court. CONCLUSION The Special Magistrate remains available to the Court and Parties pursiant to the ORDER. The Court Reporter attending the Special Magistrate hearing in this matter on October 11, 2023, at 3:30 p.m., was Damaris Loperana, Universal Court Reporting, 101 E. Kennedy Blvd., Suite 24, Tampa, FL 33602, (phone (887) 291-3376) www.ucrinc.com