WHITE CAP, L.P., Plaintiff, v. HEYDEN ENTERPRISES, LLC, d/b/a Heyden Supply, BRIAN WELSH, MIGUEL RIVAN, WAYNE ROSENBLUM, TIMOTHY KAVNEY, and GOMER BLACK, JR., Defendants CASE NO. 23-14248-CIV-MARTINEZ/MAYNARD United States District Court, S.D. Florida Entered on FLSD Docket May 21, 2025 Counsel Katherine Graham Poirot, Pro Hac Vice, Robert C. Stevens, Pro Hac Vice, Seyfarth Shaw LLP, Atlanta, GA, Luis Eduardo Suarez, Heise Suarez Melville PA, Coral Gables, FL, Alexander Charles Meier, Lee Meier, Atlanta, GA, for Plaintiff. Justin B. Levine, Lizza C. Maldonado, Samantha Shallani Jairam, Tre'Ana Lynnae Thompson, Cole, Scott, Kissane, P.A., West Palm Beach, FL, for Defendant Heyden Enterprises, LLC. Justin B. Levine, Lizza C. Maldonado, Tre'Ana Lynnae Thompson, Cole, Scott, Kissane, P.A., West Palm Beach, FL, for Defendant Brian Welsh. Julie Beth Schwartz, Law Offices of Patricia E. Garagozlo, Plantation, FL, for Defendant Miguel Rivan, Wayne Rosenblum, Timothy Kavney. Maynard, Shaniek M., United States Magistrate Judge REPORT AND RECOMMENDATION ON MOTION FOR SANCTIONS AGAINST MIGUEL RIVAN *1 This is a trade secrets and restrictive covenant dispute brought by Plaintiff White Cap, L.P. (“Plaintiff”) against Defendants Heyden Enterprises, LLC (“Heyden Supply”), Brian Welsh, Miguel Rivan, Wayne Rosenblum, Timothy Kavney (“Individual Defendants,” and together with Heyden Supply, the “Heyden Defendants”), and Gomer Black.[1] On January 27, 2025, Plaintiff filed a Supplemental Motion for Sanctions Against Miguel Rivan (“Motion”). DE 452, DE 459.[2] The Motion is referred to me for appropriate disposition, DE 461, and has been fully and comprehensively briefed, inclusive of authorized sur-replies, DE 493, DE 523, DE 537, DE 538. In addition, on November 7-8, 2024, I held evidentiary hearings, at which time I heard the testimony of Rivan, as well as his former and current counsel. DE 383. Being fully advised, I respectfully recommend that the Motion, DE 452, DE 459, be GRANTED IN PART AND DENIED IN PART. Specifically, I find by clear and convincing evidence that Rivan and his current counsel engaged in sanctionable misconduct during this case, including willful misrepresentations and repeated failures to comply with lawful discovery orders entered by this Court. Based on this misconduct, I recommend that (1) Rivan's Answer to the Complaint be stricken solely as to him, and (2) Rivan and his counsel be held jointly and severally liable to pay Plaintiff $50,000.00 as reimbursement for the reasonable fees and costs incurred to address the sanctionable misconduct detailed in this report. BACKGROUND The overall factual background of this case is detailed in my prior unobjected-to report on Plaintiff's motion for preliminary injunction. DE 287 (adopted at DE 303). The relevant procedural history is detailed in my more recent unobjected-to orders at DE 415 and 416. The pertinent facts underlying the instant Motion date back to mid-late 2023 around the time this case began and first started to come to light during the discovery process. It has taken over one full year of intensive briefing and multiple Court hearings—including show cause proceedings—to painstakingly attempt to obtain the truth of the matter. The parties’ briefing is extensive, their arguments are distilled into two general categories: (1) representations about a computer, a USB drive, and a belatedly produced second USB drive belonging to Rivan; and (2) Rivan's non-production and deletion of relevant text messages. Below are the facts relating to these two general categories. 1. CONDUCT RELATING TO RIVAN'S DEVICES A. Initial Representations Regarding Rivan's Computer and USB Drive *2 On October 27, 2023, the Heyden Defendants, represented by prior counsel, Hudson Lambert Parrott, LLC (“HLP”), provided initial disclosures identifying documents “stored on a desktop computer at 7237 Southeast Seagate Lane, Stuart, Florida, 34997” as “documents, data compilations or other electronically stored information, and tangible things in your possession, custody, or control that you may use to support your claims or defenses unless solely for impeachment, identifying the subjects of the information.” DE 46 at 11 (Initial Disclosures, Attachment C). That was Rivan's residential address at the time. See DE 14 ¶ 17 (Am. Compl.), DE 29 ¶ 17 (Answer). The Heyden Defendants did not identify any other devices relating to Rivan at that time. On November 21, 2023, after a hearing before me, I directed the Heyden Defendants to identify and provide the imaging status of relevant devices. DE 69. The Heyden Defendants complied by filing a certification of device imaging. DE 71. Noticeably absent from the certification, however, is any reference to Rivan's previously disclosed desktop computer. Instead, the device certification identified a USB drive belonging to Rivan “which does not have a serial number” and stating that this USB drive had been imaged. Id. at 2. On November 27, 2023, Plaintiff's counsel sent an email to prior counsel for the Heyden Defendants noting concerns about the certification's completeness and accuracy and asking why Rivan's desktop computer was not listed. DE 302-1 at 5 (Nov. 27, 2023, 1:37 P.M. email). Records show that Rivan's counsel at the time, Vicki Holzer, emailed Rivan after receiving this email and Rivan had subsequent phone conversations with another Heyden Supply employee, Gregg Moore. See DE 302-2 at 2, DE 310-1. On November 29, 2023, Ms. Holzer responded to Plaintiff's counsel via email that “Rivan does not have another computer beyond what was identified. He used to have a personal laptop that broke and has since been disposed. Its contents were backed up in the thumb drive that has been imaged.” DE 302-4 at 4. After Plaintiff's counsel responded with additional questions, Rivan's counsel stated in a follow-up email that same day that “[t]he statement in the Defendants’ Initial Disclosures mistakenly references Rivan's computer as a desktop when, in fact, it was a laptop. The documents identified in the disclosure, along with all other files that existed on the laptop were saved to the thumb drive that has been imaged.” Id. at 2. B. Rivan's First Set of Counsel Withdraw The next day, on November 30, 2023, Rivan's counsel filed an emergency motion to withdraw as counsel for the Heyden Defendants on grounds of “an irreconcilable conflict of interest between the Defendants’ positions in this matter” and “after consultation with the Florida Bar Ethics Hotline, counsel believes that withdrawal of representation is required under R. Regul. FL. 4-1.16(a)(1).” DE 82. On December 1, 2023, this motion was granted and the case was stayed for 45 days for the Heyden Defendants to obtain new counsel. DE 86. C. Rivan's Second Set of Counsel Withdraw On January 11, 2024, new counsel from Kaufman Dolowich, LLP appeared on behalf of Rivan and all other Individual Defendants. DE 93. On January 26, 2024, Plaintiff filed a motion to depose Rivan regarding potential spoliation and seeking the production of the USB drive referenced by his prior counsel. DE 107. In opposing that motion, Rivan's new counsel asserted that “Mr. Rivan has stated that the personal computer broke and was discarded not only prior to the initiation of this lawsuit, but prior to his departure from White Cap.” DE 124 at 2. Further, “even if Mr. Rivan was aware of this Lawsuit when he discarded the laptop (which he was not), he never destroyed the evidence, as he has stated that he backed up the laptop to an external drive” and “it is not only plausible, but expected that when a personal computer is about to be discarded, its owner (like Mr. Rivan) would make all efforts to back-up its contents.” Id. at 4. Buried in a footnote, Rivan's new counsel represented that he did not know why Rivan's “prior counsel included [this computer] in the Initial Disclosures when the computer was discarded prior to the start of the threat of litigation. The undersigned conferred with previous counsel, who stated they knew that the computer was discarded in early summer 2023 and that they believe the initial disclosures may be inaccurate.” Id. at 2 n.1. Rivan's new counsel indicated in the footnote that amended initial disclosures would be forthcoming. Id.[3] *3 On February 12, 2024, I partially granted Plaintiff's motion to compel and authorized Plaintiff to depose Rivan on the spoliation issue “[b]ecause it is undisputed that the October 26, 2023 initial disclosures prepared by Rivan's prior counsel identified Rivan's personal computer as containing relevant information and because there are questions surrounding the disposal of that computer and its pre-disposal imaging.” DE 126. Two days later, on February 14, 2024, Rivan's second set of counsel filed an emergency motion to stay the case based on “a likely conflict of interest” first discovered “late Monday night (February 12)” in connection with counsel's “review of documents and its fact investigation.” DE 128. In opposing this emergency motion, Plaintiff asserted that the withdrawal appeared to be suspiciously tied to circumstances surrounding Rivan's computer. DE 130. Nonetheless, on February 16, 2024, the emergency motion was granted and the case was stayed for 30 days for the issue to be sorted. DE 132. In early April 2024, the Court issued Orders permitting the law firm of Cole, Scott & Kissane, P.A. (“CSK”) to represent the Individual Defendants and Heyden Supply, and relieving all other prior counsel for these Defendants from any further responsibility in this matter. DE 170; DE 183. D. Rivan's First Deposition on April 17, 2024 On April 17, 2024, Rivan was deposed. Rivan testified in English and without the aid of an interpreter. DE 302-7. During this deposition, Rivan testified that: (1) the destroyed computer was a desktop computer, not a laptop; (2) he did not back up his desktop computer to the USB drive and that if his lawyers told Plaintiff there was a backup of the computer on a USB drive, they were wrong; and (3) he failed to list any USB drives in response to a discovery request from Plaintiff seeking that information. DE 302-7. Rivan also testified that he threw away his desktop computer before Plaintiff filed this lawsuit. Id. at 12-13. E. Plaintiff's Motion to Compel and For a Show Cause Hearing Rivan subsequently produced files from the USB drive. On August 16, 2024, Plaintiff filed an expedited motion to compel and motion for a show cause order claiming that metadata associated with the newly produced files did not align with Rivan's testimony. DE 302. In that motion, Plaintiff identified a series of allegedly suspect interactions between Rivan, two sets of prior counsel, and Gregg Moore that occurred before both counsel withdrew. Plaintiff theorized that Rivan and his counsel discovered adverse evidence—possibly his destruction of the desktop computer containing relevant and discoverable information—and withdrew in response. Id. Rivan countered that Plaintiff was mischaracterizing “unfortunate obstacles” that arose during the litigation. DE 316 at 2. Rivan re-asserted his claim that he had disposed of his personal desktop computer about two to three weeks before he left his employment with Plaintiff because the desktop began to malfunction. Id. at 3-4; DE 211-3, Rivan Decl. ¶ 6. At the time, according to Rivan, the only file that he copied from his personal desktop was an excel spreadsheet template that he created. DE 211-3, Rivan Decl. ¶ 6. Rivan characterized the inclusion of his personal desktop in his initial disclosures as a “mistake” and represented that he would serve updated initial disclosures by September 4, 2024. DE 316 at 4.[4] Rivan also disputed doing anything improper regarding the USB drive identified in his electronic device certification. Id. Rivan claimed that he had produced the entirety of this USB drive to Plaintiff and that Plaintiff had not made a sufficient showing that Rivan destroyed evidence. Id. at 6. Additionally, for the first time in his responsive brief, Rivan claimed (with no citation to evidence) that his prior counsel had made an “inadvertent representation” that Rivan's USB drive had been imaged. Id. at 11. In reply, Plaintiff pointed out that Rivan had again shifted his position about what happened with these devices. DE 323 at 2. Plaintiff claimed that the USB drive Rivan produced was likely not the only drive based on its metadata attributes. Id. Plaintiff then recounted the following history of representations made by Rivan and his counsel regarding this USB drive: *4 Nov. 21, 2023 – Rivan's first counsel certifies that a USB drive belonging to Rivan “ha[d] been imaged by a third-party vendor.” DE 71 at 2 (Certificate of Device Imaging). In this certification, all the Heyden Defendants identify which devices they intended to image but had not yet completed as of that date. Id. at 3. The Heyden Defendants further certify that “[t]he imaging of devices identified in (a), (b), and (d) [Rivan's USB drive] through (i) are complete.” Id. Nov. 29, 2023 – Rivan's first counsel represent to Plaintiff's counsel that Rivan's USB drive was imaged and contains all files from his missing computer. Id. Feb. 7, 2024 – Rivan's second counsel represents that Rivan had backed up his computer and created an image of the computer on the USB drive. DE 124 at 2. April 29, 2024 – Rivan's third and current counsel, CSK, represent that, although Rivan had testified that he never gave the USB drive to anyone associated with his first counsel, CSK “immediately called [Claire Williamson or Vicki Holzer]. She said ‘of course we got it. Of course we got it.’ ” DE 302-8 at 102. Plaintiff maintained that the above representations were inconsistent with Rivan's claim in his response brief that, in addition to wrongly identifying Rivan's desktop as a source of relevant data and incorrectly representing that this USB drive contained all files from his desktop, his prior counsel had also mistakenly represented that the USB drive had been imaged. On October 3, 2024 Plaintiff reiterated this position during a discovery conference before me. DE 359. During that hearing, Plaintiff stated its belief that “there are two different drives” because the produced drive did not contain a backup of Rivan's computer (as his counsel repeatedly represented) and because the drive had no files after February 2023. DE 359 at 22-23. Rivan's counsel, Justin Levine, countered in open court that “[t]here is absolutely no second device” and such a device “does not exist.” Id. at 21, 23. Mr. Levine characterized Plaintiff's position on this point as “conspiracies.” Id. at 21. F. Order Partially Granting Plaintiff's Motion and Setting Ex Parte Hearing On October 25, 2024, I issued an order denying Plaintiff's request to compel certain documents between Rivan and Moore on grounds that those communications were properly withheld as attorney-client privileged, common interest privileged or covered by the joint defense doctrine. DE 361. I also denied Plaintiff's request to disqualify CSK as counsel for the Heyden Defendants. Id. However, I found that Plaintiff had raised sufficient questions regarding potential misconduct by Rivan to warrant a hearing. Thus, I directed Rivan and Moore to appear at an ex parte hearing “to answer my inquiries about their phone, email, or documentary communications between them and possibly others relating to Rivan's disposal of a computer containing White Cap information and Rivan's production of devices, including certain USB drives, to his past and present counsel.” Id. at 9. I set the ex parte hearing for November 7, 2024. On November 6, 2024, the day before the ex parte hearing, there was a flurry of unexpected record activity including a notice to correct the record filed by Rivan's current counsel and two notices of supplemental evidence filed by Plaintiff. DE 375; DE 378; DE 379. Rivan's counsel filed an after-hours “Notice to Correct the Record Relative to a Personal Flash Drive owned by Miguel Rivan” disclosing that Rivan in fact had a second USB drive. DE 378. The notice stated that on November 5, 2024, Mr. Levine learned that Rivan had a “personal flash drive” containing 1,486 “responsive documents.” Id. at 2. Of these documents, 1,321 were reportedly “duplicative of documents previously produced” to Plaintiff, 91 were produced by Plaintiff to Defendant, and the remaining 74 were not previously produced by either party. Id. *5 That same day, Plaintiff filed two supplemental notices containing additional information about Rivan's failure to comply. The first notice asserted that Rivan failed to comply with the Court's prior discovery orders based on Plaintiff's receipt of documents from a discovery vendor used by Rivan's second counsel showing that Rivan's phone had “hundreds—perhaps thousands—of text messages that should have been produced but were not provided to White Cap by Rivan.” DE 375 at 2. As proof, Plaintiff attached several sets of representative text message exchanges. DE 375-1 to DE 375-5. The second notice included a sworn declaration from Jorge Duque, a forensic vendor employee who conducted the initial imaging of Rivan's electronic devices in November 2023. DE 379. Duque's declaration—executed the same day as Plaintiff's second notice—stated that he had imaged Rivan's USB drive in November 2023. DE 379-1 ¶¶ 1-3. This declaration directly contradicted Rivan's prior claim that his original counsel had mistakenly represented that his USB drive had been imaged back in November 2023. G. The Ex Parte and Show Cause Hearings On November 7, 2024, I heard the ex parte testimony of Rivan's prior counsel, Vicki Holzer, Claire Williamson, and Samuel “Benny” Menaged. DE 382. These attorneys credibly testified that they truthfully represented only what they believed to be true based on information provided to them by Rivan as their client. They also testified that they did not know anything about a second USB drive during the time they represented Rivan, the first USB drive Rivan provided was imaged, and the potential conflict leading to their emergency withdrawals had nothing to do with Rivan's devices. Counsel's claims are corroborated by privileged documents submitted to me for in camera review, which reveal notable instances of Rivan making representations to his prior counsel that contradict his later representations made to opposing counsel and eventually this Court. This is fraudulent and one email in particular illustrates the point. While this email is a privileged communication between counsel and client, I nonetheless find its limited disclosure warranted here under the crime-fraud exception. See U.S. v. Cleckler, 265 F. App'x 850, 853 (11th Cir. 2008) (“The attorney-client privilege does not protect communications made in furtherance of a crime or fraud.”). In the email, dated November 28, 2023, Rivan's prior counsel Ms. Holzer asks Rivan point blank if he has “a desktop computer you have used to perform some of your detailing work while you were employed at White Cap” and Rivan responds that he “never ha[d] a desktop computer, I used to have a personal laptop, that broke” and “I backup everything to a flash drive I gave to Jorge the other day ...” See HEY-FL048817, 11/28/23 email from Rivan to his prior counsel Vicki Holzer. During his later deposition in April 2024, Rivan's story changed. He testified to having a desktop computer he claims to have destroyed two weeks before he resigned from White Cap that had “files related to [his] employment at Construction Materials or White Cap.” DE 302-7 at 6. Further, he said if his counsel told Plaintiff there was a backup of the computer on a USB drive, they were wrong. Id. Worst still, when questioned about Ms. Holzer's representation in an email that “[Rivan] used to have a personal laptop that broke and has been disposed. Its contents were backed up in the thumb drive that has been imaged,” Rivan testified that this statement by Ms. Holzer was “incorrect” and “[i]t was not a laptop. It was a desktop.” Id. at 11. Rivan's later deposition testimony clearly contradicts his earlier email and is representative of the cacophony of flat-out misrepresentations involving Rivan that have plagued the discovery process in this case from the start. The same day of the show cause hearing, in response to the flurry of new filings and having considered the ex parte hearing testimony and in camera submissions, I issued an order expanding the scope of the show cause hearing set for the next day “to address why appropriate sanctions should not be imposed against both Defendant Timothy Kavney and Defendant Miguel Rivan based upon” their conduct in this case. DE 380. *6 On the morning of November 8, 2024, the day of the show cause hearing and one year and 12 days after their original initial disclosures were made, the Heyden Defendants filed amended initial disclosures removing any reference to Rivan's desktop computer. DE 381. At the show cause hearing later that day, I found that Plaintiff “made a prima facie showing [as to Rivan] that there were false representations made to this Court that only one thumb drive existed with relevant documents when, in fact, on the eve of the show cause hearing, there was a filing, indicat[ing] that, in fact, a second thumb drive did exist, containing over a thousand potentially-relevant documents.” DE 405 at 5-6. I explained that I expanded the show cause hearing to include Rivan based on the “misstatements relating to a second thumb drive” that Rivan and his counsel said did not exist such that Rivan “should have an opportunity to show cause why sanctions should not be imposed.” Id. at 16-17. Rivan testified at the hearing before me in English without an interpreter. He testified as follows: He got rid of his desktop computer before the lawsuit was filed and had “no idea” why his first counsel listed this device in his initial disclosures. Id. at 38-39. He was not familiar with the term “thumb drive,” he only learned what that meant that week on Tuesday, and he referred to it as a “flash drive.” Id. at 18. He did not know that a USB drive was the same thing as a flash drive even though he acknowledged that Plaintiff's counsel had specifically defined USB drive at the start of his prior deposition.[5] Id. at 31-34. He acknowledged that his prior deposition testimony that he had not provided a USB drive to anyone prior to Mr. Menaged (his second counsel) was incorrect and that he had in fact provided a USB drive to both his first and second counsel. Id. at 33-36. He had two USB drives and he gave both drives to Mr. Levine in March 2024. Id. at 37. Rivan later clarified that he gave both USB drives to a receptionist at Mr. Levine's law firm, CSK. Id. at 66. He did not delete any information from the second USB drive. Id. at 67. He had additional files on this USB drive that he created during his employment with Heyden Supply but he believed these files were not relevant to this case. Id. at 21-23. H. Rivan's Second Deposition on December 13, 2024 On December 13, 2024, following the show cause hearing, Rivan was deposed again. At this second deposition, Rivan testified through a Spanish interpreter as follows: He bought the second USB drive towards the end of 2023 because “when they were making the copy from the old flash drive that the young guy was having problems in extracting the information, so I copied the information into the new flash drive.” DE 452-2 at 6. (This contradicted Rivan's prior deposition testimony that he did not give his USB drive to anyone until 2024). He copied the information from the first USB drive to the second USB drive but could not explain why the USB drives contained different files and why none of the files from the second USB drive were created in 2023. Id. at 7-8. When pressed on this discrepancy, Rivan testified that he did not recall whether he deleted files from either USB drive. Id. at 8. He admittedly deleted an unknown number of text messages, though he did not recall when he deleted them. Id. at 15-16. Specifically, he selectively deleted a set of text messages, including one to him from Gregg Moore discussing another White Cap employee, Scott Hogan, continuing to work at White Cap while acting as a “spy” regarding pricing and job information (Rivan put a thumbs up on this message), even though the texts before and after that exchange remained on his phone. Id. In response to questioning about why his phone contained markedly fewer texts in 2023 than in any of the prior three years, Rivan responded “I don't delete messages. What could have happened is that I don't like texting. I prefer to send e-mails or to call.” Id. at 16. 2. RIVAN'S TEXT MESSAGES *7 On January 18, 2024, I issued an order authorizing limited expedited discovery, which required the Individual Defendants (including Rivan) to produce “all emails from their personal accounts or text messages from their phone during the two weeks prior to their departures from Plaintiff containing communications with any customers identified by Plaintiff and Defendants as being subject to the TRO.” DE 100 at 7. Plaintiff has since provided text messages Rivan did not produce which fall within the scope of that discovery order. See DE 452-6. Rivan does not dispute that he failed to produce these text messages. On May 28, 2024, Plaintiff filed an expedited motion to compel against the Heyden Defendants, including Rivan. DE 256. With reference to an attached deficiency chart, Plaintiff sought the production of text messages related to Plaintiff, Heyden Supply, building supplies, and other identified categories. DE 256-1 at 26. Plaintiff also sought all documents regarding Rivan's communications with any current or former customer of Plaintiff. Id. at 29. On June 4, 2024, I granted this motion and ordered the Heyden Defendants to “provide full, complete, and verified answers to Plaintiff's first set of discovery requests with particular attention to the deficiency chart attached to the Motion on or before June 24, 2024.” DE 262. During a July 3, 2024 discovery conference, I informed current counsel for the Heyden Defendants that this order required them to fully respond to Plaintiff's first set of discovery requests and “in my view we are now clearly within Rule 37(b) which talks about sanctions as a response for violating a court order.” DE 289 at 7. After indicating that the general notices of compliance that had been filed “did not meet the letter or the spirit of my order” and after Rivan's counsel sought clarification, I ordered the Heyden Defendants to file a certification that identified for each device what information had been produced and required any information being withheld to be identified in an appropriate motion for protective order or clarification. Id. at 4-10. On July 9, 2024, Rivan's counsel filed a notice certifying that Rivan's personal cell phone had been imaged and his “text messages with customers” and “text messages with Individual Defendants and/or Former White Cap employees as defined by Plaintiff in Request for Production” had been produced. DE 276 at 2-3. The date range for this information was from January 1, 2023 to February 8, 2024. Id. at 3. It was further certified that a USB drive belonging to Rivan with no serial number had been imaged and documents including spreadsheets, placement lists, blueprints, drawings, documents with “White Cap” identifiers, and rebar schedules had been produced. Id. Around four months later, on November 4, 2024, in advance of the show cause hearing, Plaintiff filed a notice stating that documents produced by a discovery vendor with phone images collected from Rivan showed “hundreds—perhaps thousands—of text messages that should have been produced but were not provided to [Plaintiff] by Rivan” with several examples cited. DE 375 at 2. Plaintiff's instant Motion expands on the issues raised in this notice. It identifies and includes as exhibits hundreds of text messages that Rivan apparently failed to produce in discovery despite my clear order requiring him to do so. DE 459 at 11-12. Plaintiff also identified text messages that were not found on Rivan's phone, which Plaintiff says it obtained through a subpoena to Gregg Moore, another individual who formerly worked for Plaintiff before joining Heyden Supply. Id. at 12-13. These text messages are from July 27, 2023, shortly before Rivan's resignation on July 31, 2023, and they are between Moore and Rivan discussing having Scott Hogan, another White Cap employee, “be our spy” in exchange for lunch or “maybe $100 a week or something” to “make him feel like part of the team.” Id. at 13. Moore suggests that Hogan could in return feed them with “prices and new job info lol.” Id. Later in the same exchange, Moore tells Rivan he “must have been drinking when you were talking to Scott” because “he came and told me gomer is quiting [sic].” Id. DISCUSSION *8 Plaintiff seeks sanctions under the Federal Rules of Civil Procedure and the Court's inherent authority for Rivan and his counsel's repeated inaccurate and inconsistent representations in discovery regarding his electronic devices and their relevant contents. Plaintiff claims that it incurred significant fees and costs in the discovery process attempting to uncover the truth on these issues. Rivan and his counsel oppose Plaintiff's request for sanctions, arguing that Rivan “did not engage in any intentional fraudulent conduct.” DE 493 at 2. Instead, Rivan characterizes his various misrepresentations as based on “mere negligence and misunderstanding” stemming from his limited English proficiency and lack of sophistication. Id. at 2-4. As to the undisclosed text messages, Rivan argues they are irrelevant because they do not relate to projects he “transitioned” from Plaintiff to his subsequent employer, Heyden Supply. Id. at 8-9. Upon careful consideration, I find that sanctions are warranted here under both the Federal Rules of Civil Procedure and the Court's inherent authority. Federal Rule of Civil Procedure 37 allows a party to move for an order compelling disclosure or discovery. Fed. R. Civ. P. 37(a). An evasive or incomplete response equates to a failure to respond. Fed. R. Civ. P. 37(a)(4). If a party fails to answer a discovery response despite a court order to do so, the Court may enter more severe sanctions, up to and including a default judgment. Fed. R. Civ. P. 37(b)(2). In addition, Rule 26(g) provides that an improper certification in a discovery response must be met with “an appropriate sanction” on the party, the party's counsel, or both absent substantial justification. Fed. R. Civ. P. 26(g)(1), (3). Under Rule 37(b), if a party fails to comply with an order providing or permitting discovery, the Court may enter appropriate sanctions, including: (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)(i)-(vii). In addition to or in lieu of these sanctions, the Court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(b)(2)(C). In the Eleventh Circuit, under Rule 37, district courts hold broad discretion to impose sanctions against litigants or their counsel, including by imposing monetary sanctions and, when appropriate, dismissal of a claim or responsive pleading. BankAtlantic v. Blythe Eastman Paine Webber, Inc.,12 F.3d 1045, 1048-49 (11th Cir. 1994). A district court's act of imposing Rule 37 sanctions implicates the Fifth Amendment's Due Process Clause, and so, to ensure a sanction of fees is “just,” the record must reflect that the sanctioned party was previously on notice of the necessity to produce the discovery in question. Id. at 1050. A finding of bad faith or willfulness on the part of the sanctioned party is necessary only where a court imposes the most severe sanction of default or dismissal. Id. at 1049. Importantly, Rule 37 is designed to protect a court's institutional values and “Rule 37 sanctions are imposed not only to prevent unfair prejudice to the litigants but also to insure the integrity of the discovery process.” Aztec Steel Co. v. Florida Steel Corp., 691 F.2d 480, 482 (11th Cir. 1982). Thus, courts are encouraged to consider whether the sanctioned party's conduct would cause “ ‘other parties to ... feel freer than ... Rule 37 contemplates they should feel to flout other discovery orders of other District Courts.’ ” Id. at 482 (quoting Nat'l Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976)). *9 In addition to its authority under Rule 37, the Court also has the inherent authority to control the proceedings before it, which includes the authority to impose “reasonable and appropriate” sanctions. See Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1545 (11th Cir. 1993). That power includes the ability to conduct independent investigation to determine whether it has been the victim of fraud. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991); see also In re E.I. DuPont De Nemours & Co.-Benlate Litig., 99 F.3d 363, 367 (11th Cir. 1996) (concluding that district court had jurisdiction to conduct an independent civil action for sanctions based upon allegations of fraud in another case). Imposing sanctions under the Court's inherent power requires a finding that a party acted in bad faith. Martin v. Automobile Lamborghini Exclusive, Inc., 307 F.3d 1332, 1335 (11th Cir. 2002) (per curiam). Bad faith exists when: (1) when fraud has been committed on the Court; (2) when a party delays or disrupts the litigation or hampers, the enforcement of a court order; or (3) when an attorney knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent. Barash v. Kates, 585 F. Supp. 2d 1347, 1362 (S.D. Fla. 2006). The Court may impose case-terminating sanctions under its inherent authority or Rule 37 if there “was a willful or bad faith failure to obey a discovery order.” Malautea, 987 F.2d at 1542 (finding bad faith where defendants failed to produce documents following three clear orders by the district judge to do so). Before a case-terminating sanction may be entered, a court must find: (1) that Defendant acted willfully or in bad faith; (2) that Plaintiff was prejudiced by Defendant's conduct; and (3) that lesser sanctions would not serve the goals of punishment and deterrence. Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 131 (S.D. Fla. 1987). Here, as discussed below, I find by clear and convincing evidence that Rivan's conduct warrants the striking of the Answer as to him and the imposition of monetary sanctions against him and his current counsel. 1. Rivan Did Not Comply With the Court's Discovery Orders First, Rivan undoubtedly violated my discovery orders. On January 18, 2024, I entered a clear order requiring the Individual Defendants, including Rivan, to produce “all emails from their personal accounts or text messages from their phone during the two weeks prior to their departures from Plaintiff containing communications with any customers identified by Plaintiff and Defendants as being subject to the TRO.” DE 100. Plaintiff attaches to its motion text messages that Rivan did not produce in response to my order. DE 452-6. I am unpersuaded by Rivan's attempts to characterize these text messages as irrelevant. The messages are responsive to Plaintiff's discovery requests, relate directly to Plaintiff's allegations, and are thus discoverable. The Amended Complaint alleges that “[t]o keep near real-time updates in White Cap's attempts to retain its customer base, Defendants left behind double agents employed at White Cap. These moles continued to work at White Cap while providing extensive updates about White Cap's activities to Defendants—thus allowing Defendants to precisely orchestrate their attacks on White Cap's operations, customers, employees, and confidential information and trade secrets.” DE 14 ¶ 8. The undisclosed text messages relate squarely to these allegations that certain employees acted as “double agents” or “spies,” and the failure to produce them clearly violates my June 4, 2024 discovery order. Even though Rivan was a party to these texts, Rivan did not produce them in discovery and it has since become clear that he likely deleted these messages from his phone. Certain messages between Rivan and Moore immediately before and after these exchanges remain on Rivan's phone, thus suggesting that Rivan deleted these texts—and only these text messages—at some point after they were sent. It is reasonable to presume that Rivan deleted these text messages around the time this lawsuit was filed because Rivan would have no other reason to delete a select number of text messages but leave the others on his phone. Rivan offers no valid justification for his failure to produce these messages in violation of his discovery obligations and my orders. *10 Rivan's non-compliance with my discovery orders did not stop there. On June 4, 2024, I entered another order granting Plaintiff's motion to compel. DE 262. This order made clear that the Heyden Defendants were required to “provide to Plaintiff full, complete, and verified answers to Plaintiff's first set of discovery requests with particular attention to the deficiency chart attached to the Motion on or before June 24, 2024.” Id. Rivan did not comply with this order. During a July 3, 2024 discovery conference, I advised the Heyden Defendants that my order required them to fully respond to Plaintiff's first set of discovery and “in my view we are now clearly within Rule 37(b) which talks about sanctions as a response for violating a court order.” DE 289 at 7. When counsel expressed possible confusion over my order, I authorized the Heyden Defendants to file a narrowly tailored motion for clarification and motion for protective order. I also directed the Heyden Defendants to file a certification that identified for each device what information had been produced and, if there were categories of withheld information, those must be identified in a motion for protective order or clarification. Id. at 7-9. On July 9, 2024, Rivan's counsel filed a certification representing that Rivan had produced “text messages with customers” and “text messages with Individual Defendants and/or Former White Cap employees as defined by Plaintiff in Requests for Production.” DE 276. The date range for this information was from January 1, 2023 to February 8, 2024. Id. Rivan also certified that he had produced information from a single USB drive. Id. It turns out that this certification was demonstrably false and represents yet another failure to comply with my order. As an initial matter, Rivan represented that he produced text messages with customers from January 1, 2023 to February 8, 2024. Id. at 2-3. However, Plaintiff identifies text messages it later obtained from a vendor during this timeframe that were not produced by Rivan, including numerous text messages with either customers or former White Cap employees. Rivan does not deny his non-disclosure of these text messages. And, having reviewed the examples provided by Plaintiff, these messages are clearly responsive to Plaintiff's discovery requests. Some of the text messages suggest pre-departure solicitation by Rivan.[6] Others directly support some possible degree of coordination between Heyden Supply personnel regarding their departure from Plaintiff and the potential involvement of other White Cap personnel.[7] Rivan's certification also failed to identify his second USB drive, which he admittedly provided to his current counsel in March 2024, well before I ordered Rivan to file this certification. Ultimately, I find that Plaintiff has demonstrated by clear and convincing evidence that Rivan failed to produce relevant text messages, which represents a clear and unambiguous violation of multiple discovery orders I issued during this litigation. I further find that Rivan failed to identify the second USB drive, also in violation of my discovery orders, even though he was well aware of this drive as he had provided it to his current counsel's office. *11 Rather than satisfactorily explain why sanctions should not be imposed, Rivan attempts to further muddy the already-muddied waters. For example, Rivan claims the text messages Plaintiff identifies are not responsive, there is no evidence that he “intentionally withheld” the text messages, and “if Rivan unintentionally fell short” and failed to produce relevant text messages, the error resulted from the way that his counsel reviewed them. DE 493 at 8. Rather than concede the obvious relevance of these messages, Rivan further claims that these texts were not responsive because they “did not relate to White Cap projects” and further claims—for the first time in connection with the instant briefing—that my discovery orders were limited to communications relating to projects transferred by Rivan to Plaintiff. Id. This position is entirely unfounded. Rivan does not point to any order limiting the scope of discovery to “transferred White Cap projects.” Nor can he because no such order exists. Instead it appears that Rivan and his counsel unilaterally imposed this as their own limitation on the scope of discovery despite multiple clear orders otherwise. Indeed, Rivan's July 9, 2024 certification to the Court concedes that these text messages are relevant and suggests that they had been produced to Plaintiff. DE 276. I fail to see how Rivan could represent that he produced “texts with customers” from January 1, 2023 to February 8, 2024, id. at 2-3, while simultaneously failing to produce hundreds of text messages meeting that criteria. Rivan's arguments to the contrary lend support to a finding of bad faith and willfulness. I permitted Rivan to move for clarification or for protective order regarding any documents being withheld. DE 273. When he did file these motions, however, they did not seek to limit the scope of discovery sought by Plaintiff to certain projects or otherwise. Instead, Rivan sought to exclude the production of “irrelevant information” from his imaged phone, such as “information and photos revealing their personal hobbies and interests; personal calendar entries relative to as an example doctor's visits; information relating to sports and sports tickets; music; photos of cuisine; Christmas photos; photos from family birthday parties; photos taken at the barber shop; photos of animals; information concerning downloaded applications; information about a Google TV account; information about movies; photos related to music taste; photos of vehicles; membership-club card numbers; information pertaining to advertisements; and photos of articles of clothing.” DE 291. In my omnibus order partially granting the Heyden Defendants’ motion for protective order and clarification, I partially clarified the scope of production, but I did not limit the scope to only those projects transferred from Plaintiff to Heyden Supply. See DE 305. There is simply no conceivable basis for Rivan's current claim that the text messages are irrelevant or that the scope of production was limited to “transitioned” projects. I find it particularly vexatious that neither Rivan nor his counsel acted immediately in response to Plaintiff's identification of the undisclosed text messages. On November 4, 2024, a few days before a scheduled show cause hearing, Plaintiff identified text messages that had not been produced by Rivan but had been obtained instead from a discovery vendor. DE 375. At that point, Rivan and his counsel were clearly on notice that relevant documents covered by my prior discovery orders had not been produced. But rather than supplement Rivan's production, as legally required by governing rules, Rivan and his counsel did not correct the deficient production for months. This conduct justifies a finding that Rivan and his counsel engaged in bad faith and willful violations of my discovery orders. 2. Rivan's Deletion of Text Messages As discussed above, the evidence also shows that Rivan deleted relevant text messages. Plaintiff has identified text messages between Rivan and Moore that were produced in response to a subpoena to Moore but were missing from Rivan's phone. DE 452 at 11-13. On July 27, 2023, four days before Rivan resigned on July 31, 2023, Moore and Rivan exchanged texts discussing having Scott Hogan, another White Cap employee, “be our spy” in exchange for giving him lunch or “maybe $100 a week or something” to “make him feel like part of the team.” DE 452-7. Moore texts that Hogan could in return feed them with “prices and new job info lol.” Id. Later in the same exchange, Moore texts Rivan that he “must have been drinking when you were talking to Scott” because “he came and told me gomer is quiting [sic].” Id. *12 While these clearly responsive text messages are missing from Rivan's phone, the messages immediately before and after these exchanges remain on Rivan's phone. The below chart illustrates this point: See DE 452-8 at 6-8 (text message exchange between Rivan and Moore on July 25-26, 2023). Rivan asserts that he deleted these text messages on his phone before Plaintiff filed its lawsuit and so he had no obligation to preserve them. I do not credit this response. There is no logical reason why Rivan would delete only these messages—which were directly responsive to allegations in Plaintiff's Amended Complaint[8]—but leave the messages immediately before and after these exchanges. According to Rivan's own deposition testimony, his phone contains thousands of text messages stretching back for years prior to the lawsuit. DE 453-2. It is simply not credible to think he would delete only this incriminating portion of his texts with Moore while leaving other messages on his phone without knowledge of this lawsuit and its claims. What is more likely is that he selectively deleted these incriminating text messages in order to avoid producing them in this litigation. 3. Rivan's False Representations Regarding his Electronic Devices I likewise find that Rivan's misrepresentations related to his devices were made willfully and in bad faith. Numerous misrepresentations undisputedly occurred related to Rivan's computers and USB drives. A detailed review of the record shows Rivan's ever shifting position is riddled with contradictions. For example, regarding Rivan's two USB drives: Personal versus business use: Rivan testified at the sanctions hearing that he used the second USB drive for “personal” files and that it did not have relevant information. DE 405 at 66-67. In his second deposition, however, Rivan said he used the second USB drive to transfer files related to his work for Heyden Supply. DE 452-2 at 104. Additionally, around February 8, 2024, Rivan says he left what he identified as the second USB in Moore's Heyden Supply office. He had no explanation for why the second USB drive would be in Moore's office unless he used it for Heyden files (which are not on the drive). Id. at 101-03. File activity in November 2023: Rivan testified that, after the first USB drive was imaged on November 14, 2023, he used it only to copy information to the second USB drive and began using the second USB drive to transfer or save files. DE 452-2 at 110-111. However, neither the first USB drive nor the second USB drive contain any files created on or around November 2023. DE 452-2 at 104-105. *13 File deletion: During the sanctions hearing, Rivan testified that he did not delete any files from the second USB drive. DE 405 at 67. By contrast, during his deposition, Rivan testified that he did not remember whether he deleted any files from the second USB drive. DE 452-2 at 36, 105-07.[9] Adding salt to the wound, it has become evident that much of the time incurred by Plaintiff and this Court related to Rivan's misrepresentations could have been avoided. For example, Rivan or his counsel could have asked the discovery vendor whether his USB drive had been imaged and reviewed the drive's contents. This is the path Plaintiff eventually took to discover the undisclosed messages. There is no explanation about why Rivan and his counsel did not take this same approach to ensure that their representations and certifications to this Court were true and correct In addition, after Plaintiff stated its belief that Rivan had a second USB drive, DE 452 at 14-15, Rivan's counsel represented at a hearing on October 3, 2024 that a second drive “does not exist,” and Plaintiff was offering “conspiracies” to the Court. DE 359 at 21-23. This turned out to be demonstrably false. Not only did Rivan have a second drive, but he provided that drive to his counsel's office approximately six months earlier in March 2024. DE 405 at 37. Rivan also did not identify this USB drive (or any USB drive) in his answers to Plaintiff's discovery. See DE 297. If Rivan's counsel had reviewed and produced the evidence Rivan delivered to them in March 2024, rather than making unverified statements to the Court and Plaintiff about this drive six months after his counsel's office received it, none of the effort and resources expended chasing the existence of the second flash drive would have been necessary.[10] Rather than acknowledge their shortcoming in this regard, however, Rivan and his counsel criticize Plaintiff for relentlessly pursuing the admittedly false and incomplete information they provided in discovery. DE 493 at 2. This argument is not well-taken. Throughout discovery, Rivan and his counsel ping-ponged between claiming that certain events did or did not occur—often only in response to a motion or notice by Plaintiff—with Rivan's position about objective events (like his USB drive being imaged or whether his destroyed computer was a laptop or desktop) changing across multiple briefs and Court hearings. And their lack of candor to the Court and opposing counsel appears to continue. During the show cause hearing, Rivan testified, and his counsel led the Court and Plaintiff to believe, that the entire contents of the second USB drive had been produced. DE 405 at 67-68 (testifying that the second USB drive “is currently being imaged and has been produced.”). Rivan also stated at two separate points in his response that the entire contents of the second USB drive had been produced. DE 493 at 8, 19 (“Rivan produced all contents in his Second USB Drive on November 6, 2024” and “Rivan has produced the entirety of the contents of his First USB Drive and his Second USB Drive, in addition to all responsive documents and communications on Rivan's personal cellular phone”). *14 Yet, when Plaintiff's counsel asked Rivan's counsel whether all information from the second USB drive had been produced—as they represented to the Court—or if certain information had been withheld, the response of Rivan's counsel shifted again—this time they responded generally that Rivan had “produced all contents that were responsive from the Second USB drive, as provided in our notice.” DE 523-1. Rivan might have properly withheld information from this drive as irrelevant, but that is no justification for misrepresenting to the Court that the full contents of this drive had been produced. This is particularly true given Rivan and his counsel's new assertion that “the additional information saved in the Second USB Drive was not responsive to the allegations in this case when Rivan did not bring any projects from White Cap to Heyden Supply.” DE 493 at 15. In Rivan's notice to correct the record, Rivan acknowledged that his second USB drive contained 1,486 “responsive documents,” DE 378. It is impossible to square that admission with his later statement that the additional information “was not responsive to the allegations in this case.” DE 493 at 15. Cumulatively, the widespread and repeated failures by Rivan, affirmatively aided by his counsel, to comply with my discovery orders and the lack of candor of both client and counsel cannot be viewed as anything other than willful and bad faith conduct. Malautea, 987 F.2d at 1543 (affirming sanctions award when defendants could not credibly explain how they interpreted discovery order to not encompass certain relevant information); see also Agilysys, Inc. v. Hall, No. 2019 WL 3483173, at *16 (N.D. Ga. May 29, 2019) (failure to produce documents despite court orders requiring production constituted willful misconduct); Taylor v. Bradshaw, 2015 WL 11256306, at *2 (S.D. Fla. Apr. 8, 2015), R&R modified and adopted, 2015 WL 11254712 (S.D. Fla. May 11, 2015), aff'd, 742 F. App'x 427 (11th Cir. 2018) (finding bad faith and awarding sanctions where opposing party and court “expended extensive judicial resources and time trying to get [party] to fully and completely respond” to discovery). 4. Rivan's Misconduct in Discovery Clearly Prejudiced White Cap Rivan's actions in discovery clearly prejudiced Plaintiff. The preceding discussion exemplifies the needlessly compounded expenditure of resources caused by Rivan and his counsel's conflicting and changing positions. As with Kavney, Rivan's repeated false statements and failure to comply with discovery orders made “a game of discovery” and deprived Plaintiff “of the truth-finding judicial process to which it is entitled” through litigation. See Sprint Sols., Inc. v. Fils-Amie, 83 F. Supp. 3d 1290, 1298 (S.D. Fla. 2015). Rivan's conduct, compounded by his counsel's actions, has “caused Plaintiff's legal fees to skyrocket” and I “simply cannot trust that [Rivan has] produced, or will ever produce, all discoverable evidence.” Bernal v. All Am. Inv. Realty, Inc., 479 F. Supp. 2d 1291, 1339 (S.D. Fla. 2007). 5. Appropriateness of Lesser Sanctions I have considered whether lesser sanctions are appropriate and find that, given the extent of Rivan's misconduct, lesser sanctions will not suffice and the striking of his Answer is warranted. I base this finding on Rivan's repeated false statements to the Court, which stretch across multiple filings and were revealed only on the eve of his deposition and even then, only in part. Severe sanctions are particularly appropriate here not only to “penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.” Mathews v. Moss, 2011 WL 13134350, at *3 (S.D. Fla. Sept. 13, 2011), aff'd, 506 F. App'x 981 (11th Cir. 2013). Absent severe sanctions, litigants like Rivan would be incentivized to conceal relevant evidence and violate the Court's discovery orders. While a lesser award, such as an award that merely provided for fee-shifting, would partially place Plaintiff in the same position, the penalty for such conduct must exceed simply restoring the harmed party to the same position it would be in had the false information not been offered in the first place. Malautea, 987 F.2d at 1545 (finding bad faith when party's conduct resulted in “[c]ountless motions, responses, briefs in support and opposition” that “occupied far more of the court's time than the case itself required”). *15 Moreover, I have previously entered lesser sanctions and those have failed to secure Rivan's provision of truthful information in discovery. I previously entered clear orders requiring Rivan to produce certain information regarding pre-departure communications and documents responsive to Plaintiff's first set of discovery requests. Rather than comply with these orders, Rivan misled Plaintiff and the Court by unilaterally applying limiting criteria, failing to correct deficient productions, and making representations to the Court that Rivan and his counsel knew or should have known were false. Despite that order and my express warning to Rivan that “we are now clearly within Rule 37(b) which talks about sanctions as a response for violating a court order,” Rivan failed to produce clearly responsive documents and failed to take any action even after Plaintiff identified these gaps in his production. Accordingly, lesser sanctions have been insufficient to procure Rivan's honest participation in this litigation. RECOMMENDED SANCTIONS I find the appropriate sanctions for Rivan's misconduct are to strike his Answer and hold Rivan and his counsel jointly and severally liable to Plaintiff for its fees and costs expended in connection with such misconduct. First, Rule 37(b)(2)(A)(iii) provides that the Court may strike a party's answer in whole or in part for failing to obey a discovery order. See Luna-Marquez v. Laviosa, 2016 WL 4369967, at *3 (S.D. Fla. Feb. 17, 2016); U.S. v. One 1999 Forty Seven Foot Fountain Motor Vessel, 240 F.R.D. 695, 698 (S.D. Fla. 2007); see also Mathews, 2011 WL 13134350, at *3, aff'd, 506 F. App'x 981 (11th Cir. 2013). Similarly, the Court also has the inherent authority to strike a party's answer. Forsberg v. Pefanis, 634 F. App'x 676, 679 (11th Cir. 2015) (affirming district court's striking of answer based on submission of false evidence). “[T]he decision to strike a claim or answer ‘ought to be a last resort–ordered only if noncompliance with discovery orders is due to willful or bad faith disregard for those orders.’ ” BluestarExpo, Inc., 2022 WL 2341168 at *12 (citing Wyndham Vacation Ownership, Inc., v. Slattery, Sobel & Decamp, LLP, 2021 WL 5275700, at *3 (M.D. Fla. Nov. 10, 2021) (quoting U.S. v. Certain Real Prop. Located at Route 1, Bryant, Ala., 126 F. 3d 1314, 1317 (11th Cir. 1997)). Here, Rivan and his counsel's repeated and persistent failures to comply with prior Court orders warrant this recommended sanctions. Second, I find that Rivan and his counsel should be required to pay Plaintiff's reasonable attorneys’ fees and costs incurred in connection with the misconduct described in this report. Chambers v. NASCO, Inc., 501 U.S. at 44; see also In re E.I. DuPont De Nemours & Co.–Benlate Litig., 99 F.3d at 367; Sprint Sols., Inc., 83 F. Supp. 3d at 1298-99. In sanctioning Kavney, I did not recommend extending the monetary sanction to his counsel. I find it appropriate to do so here where counsel played a central role in perpetuating the sanctionable conduct. Many of the errors that bogged down the discovery process are traceable to Rivan's counsel. This includes (1) making the claim as a trusted officer of the Court that Rivan did not have a second USB drive when Rivan had, in fact, delivered a second USB drive to this same counsel's office months earlier, (2) the decision to claim that Rivan's prior counsel mistakenly represented that his USB drive was not imaged (which turned out to be untrue), (3) counsel's statements that the full contents of the second USB drive had been produced when they had not, and (4) filing inaccurate certifications with this Court. See Orenshteyn v. Citrix Sys., Inc., 2014 WL 11320634, at *4 (S.D. Fla. Sept. 11, 2014), R&R adopted, 2014 WL 11320631 (S.D. Fla. Sept. 26, 2014), aff'd, 609 F. App'x 654 (Fed. Cir. 2015) (awarding fees incurred in additional discovery because of false statements); Nukote Int'l, Inc. v. Office Depot, Inc., 2015 WL 71566, at *4 (S.D. Fla. Jan. 6, 2015) (awarding sanctions for “repetitive oversight” by party related to delay and failure to produce sufficient responses). CONCLUSION *16 Accordingly, for the reasons stated above and following my careful reflection and review of the record—including the testimony at the ex parte hearing, show cause hearing, prior discovery hearings, and the parties’ written and oral arguments—I respectfully RECOMMEND that Plaintiff's Supplemental Motion for Sanctions Against Rivan, DE 452 (unsealed version), DE 459 (sealed version), be GRANTED IN PART AND DENIED IN PART. I recommend that (1) Rivan's Answer be STRICKEN as to him; and (2) Plaintiff be AWARDED $50,000.00 as representing reasonable attorneys’ fees and costs incurred in connection with the misconduct described in this report, with Rivan and his current counsel, Cole Scott and Kissane, being held jointly and severally liable to pay these fees. NOTICE OF RIGHT TO OBJECT The parties shall have fourteen (14) days from the date of being served with a copy of this Report and Recommendation within which to file written objections, if any, with U.S. District Judge Jose E. Martinez. Failure to file objections timely shall bar the parties from a de novo determination by the District Judge of an issue covered in the Report and Recommendation and shall bar the parties from attacking on appeal unobjected-to factual and legal conclusions contained in this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1 (2016). Conversely, if a party does not intend to object to this Report and Recommendation, then that party shall file a Notice of such within five (5) days of the date of this Report and Recommendation. DONE AND RECOMMENDED in Chambers at Fort Pierce, Florida, this 20th day of May, 2025. Footnotes [1] As to Defendant Gomer Black, the Court has issued an agreed-upon permanent injunction. DE 520. As to Defendant Timothy Kavney, the Court has stricken the Answer solely as to him and ordered him to pay Plaintiff $50,000.00 in fees as sanctions for his demonstrated misconduct throughout this case. DE 467. [2] The motions filed at DE 452 and DE 459 are one and the same, the only exception being that the filing at DE 452 is partially redacted to protect confidential information. The sealed filing at DE 459 is fully unredacted and includes five attached unredacted exhibits featuring at-issue text messages. [3] It is undisputed that this second set of counsel did not submit amended initial disclosures before withdrawing based upon an alleged conflict of interest. [4] This was not done. [5] At one point, Rivan caught himself using the term “USB drive.” Id. at 65 (“I told my lawyers that I—I always told my lawyer that I have a US—a flash drive.”). [6] For example, Rivan scheduled a call with Chris Rokanas (Richard & Rice), and on the day Rivan resigned (July 31, 2023), Rokanas texted Rivan “Good morning is it official” to which Rivan responded “Yes sir...I'm ready to give you the best service ever” and went on to provide his new Heyden Supply email address. See DE 459-1 at 3. [7] For example, the day after Rivan resigned, on August 1, 2023, Moore texted Rivan that Plaintiff White Cap would be “watching Hogan and Matt” (two White Cap employees) and that another White Cap employee, Kim “told Wayne last night.” See DE 459-2 at 3. [8] It bears repeating that the Amended Complaint alleges: “To keep near real-time updates in White Cap's attempts to retain its customer base, Defendants left behind double agents employed at White Cap. These moles continued to work at White Cap while providing extensive updates about White Cap's activities to Defendants—thus allowing Defendants to precisely orchestrate their attacks on White Cap's operations, customers, employees, and confidential information and trade secrets.” DE 14 ¶ 8. Defendants deny this allegation in both their Answer and in deposition testimony. [9] Rivan's testimony is also impossible because the second USB drive contains files from projects that he worked on at White Cap, but the first USB drive does not. DE 452-2 at 38-41. Thus, he necessarily deleted some unknown number of files from the first USB drive—unless Rivan copied them from the computer he claims he tossed in July 2023. [10] Mr. Levine represented that he was not personally aware of the second USB drive. Yet his own client testified that he provided the second USB drive to Mr. Levine's law offices in March 2024, so his firm presumably had knowledge that this drive existed and failed to disclose its existence.