Fontainebleau Florida Hotel, LLC v. Botach

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 25-CV-20251-MOORE/Elfenbein
FONTAINEBLEAU FLORIDA HOTEL, LLC,
Plaintiff,
v.
SHMULEY BOTEACH JACOB
A/K/A SHMUEL BOTACH, et al,
Defendants.
_____________________________________________/
ORDER ON PLAINTIFF’S MOTION FOR SANCTIONS
THIS CAUSE is before the Court on Plaintiff Fontainebleau Florida Hotel, LLC’s
(“Plaintiff”) Motion for Sanctions (the “Motion for Sanctions”), ECF No. [61]. The Honorable K.
Michael Moore referred the Motion for Sanctions to me “to take all necessary and proper action
as required by law and/or to issue a Report and Recommendation.” See ECF No. [62]. Having
reviewed the Motion for Sanctions, the response thereto, and the record in this case, the Motion
for Sanctions, ECF No. [61], is GRANTED in part and DENIED in part.
I. 	BACKGROUND
This lawsuit arises from an incident that occurred on December 1, 2024, in the lobby of
Plaintiff’s Fontainebleau Miami Beach hotel (the “Hotel”), when Defendant Faiz Akbar (“Akbar”),
a hotel guest, approached Defendant Jacob Shmuel Botach, a/k/a Shmuley Boteach, (“Boteach” or
“Defendant”), and launched into what Boteach describes as a threatening “antisemitic tirade.” See
ECF No. [88] at 4; ECF No. [61] at 2. The two sides sharply disagree about who instigated the
confrontation and the circumstances of Boteach’s removal. 	Plaintiff’s Complaint alleges
defamation and tortious interference with business relationships, claiming Boteach made false
Case 1:25-cv-20251-KMM Document 130 Entered on FLSD Docket 02/27/2026 Page 1 of 16

CASE NO. 25-CV-20251-MOORE/Elfenbein
2
public statements that the Hotel trespassed him because of his religion and that it refused to
cooperate with law enforcement. See ECF No. [1-1] at 12-17. Boteach filed Counterclaims against
Plaintiff alleging violation of the Civil Rights Act and tortious interference with business
relationships. See ECF No. [40] at 13-20.
II. 	PROCEDURAL HISTORY
On March 11, 2025, Defendant served a subpoena on the Miami Beach Police Department
(“MBPD”), seeking all video footage of the incident that Plaintiff had provided to the department.
See ECF No. [88] at 7; ECF No. [61] at 3. On March 26, 2025, the MBPD produced responsive
surveillance footage to Defendant’s counsel, who thereafter forwarded the footage to Defendant.
See id. On April 2, 2025, before entry of any protective order in this matter, Defendant posted an
excerpt of the surveillance footage to his public Instagram account, where he maintains more than
90,000 followers. 	See ECF No. [61] at 3, 4; ECF No. [88] at 8, 11. 	Plaintiff did not seek
emergency relief or otherwise move the Court at that time regarding the posting. On April 7, 2025,
the Parties jointly filed a Motion for Entry of Stipulated Protective Order. See ECF No. [31].
Two days later, the Court entered the Parties’ Stipulated Protective Order (the “Protective
Order”), which provides that all materials produced by a non-party are automatically designated
“Outside Counsel Eyes Only” for a period of thirty days from the date of production without any
affirmative act by either party. 	See ECF No. [32] at ¶19. 	Additionally, paragraph 27 broadly
prohibits any party from using discovery material for any purpose outside the litigation, including
for any business, commercial, personal, or public purpose. See id. at ¶27. Paragraphs 31 and 34
restrict access to “Highly Confidential” and “Outside Counsel Eyes Only” materials to a limited
set of enumerated persons. 	See id. at ¶¶31, 34, 27. 	Should the Parties seek to challenge these
confidentiality designations, paragraph 44 requires a party wishing to contest a designation to first
Case 1:25-cv-20251-KMM Document 130 Entered on FLSD Docket 02/27/2026 Page 2 of 16

CASE NO. 25-CV-20251-MOORE/Elfenbein
3
provide written notice to the designating party, engage in a meet-and-confer process, and only then
seek relief from the Court — all while continuing to treat the material as designated in the interim.
See id. at ¶44.
On April 10, 2025, one day after entry of the Protective Order, Defendant again posted the
surveillance footage to his social media accounts. See ECF No. [61] at 3; ECF No. [88] at 9. On
April 16, 2025, Plaintiff formally designated all materials produced by the MBPD as “Highly
Confidential” pursuant to the Protective Order. See id. at 3; ECF No. [88] at 9. Plaintiff’s counsel
notified Defendant’s counsel of the designation, and Defendant’s counsel, in turn, advised
Defendant. See ECF No. [88] at 9. Upon receiving notice of the designation, Defendant removed
the surveillance footage from his social media accounts. See ECF No. [88] at 9; ECF No. [61] at
3. On April 16, 2025, upon removing the posts, Boteach published a Twitter post acknowledging
he was “required under the rules to remove the video.” See ECF No. [61] at 4-5. On September
17, 2025, Defendant again posted the video on social media. See id. at 5-6; ECF No. [88] at 10-
11.
The current dispute before the Court centers on whether Boteach violated the Protective
Order on three separate occasions by publicly posting the Hotel’s surveillance footage to his social
media accounts with 90,000+ Instagram followers. See ECF No. [61] at 1-6. Plaintiff contends
that Defendant’s own April 16, 2025 post — in which he publicly acknowledged that the footage
was designated “Highly Confidential,” that a Court Order governed its dissemination, and that he
was “required under the rules” to remove it — forecloses any argument that his subsequent
September 17, 2025 violation was inadvertent. See ECF No. [61] at 4-5; ECF No. [61-3]. Plaintiff
further argues that the footage was properly designated “Highly Confidential” because it reveals
the Hotel’s security camera locations and capabilities and captures images of third-party guests
Case 1:25-cv-20251-KMM Document 130 Entered on FLSD Docket 02/27/2026 Page 3 of 16

CASE NO. 25-CV-20251-MOORE/Elfenbein
4
wholly unrelated to this litigation. See id. at 4. Plaintiff requests that the Court preclude Defendant
from introducing the surveillance footage at trial, award Plaintiff its reasonable attorney’s fees and
expenses, order Defendant to show cause why he should not be held in contempt, and permit
Plaintiff to designate all future discovery materials as “Outside Counsel Eyes Only.” See ECF No.
[61] at 7-8.
Defendant opposes the Motion for Sanctions on several grounds. See ECF No. [88]. First,
Defendant argues that the surveillance footage was publicly available prior to any confidentiality
designation because Plaintiff had previously provided it to the MBPD, making it subject to
Florida’s public records laws, and because Defendant had already posted an excerpt of the footage
on Instagram on April 2, 2025, before the Protective Order was entered or any designation was
made. 	See id. at 12-13. 	Defendant, therefore, contends that the footage did not qualify for a
“Highly Confidential” designation under the Protective Order’s own terms, which require that
designated materials constitute non-public information. See id. at 8-9. Second, Defendant argues
that the first two alleged violations cannot form the basis for sanctions because they occurred
before the Protective Order was entered on April 9, 2025, and before Plaintiff designated the
footage as “Highly Confidential” on April 16, 2025, making the September 17, 2025 post the only
potential violation. See id. at 15-16. Third, Defendant contends that the September 2025 posting
was inadvertent, as Defendant had recently undergone back surgery, was taking prescribed opioid
pain medication at the maximum dosage, and mistakenly believed that the footage was no longer
confidential after being advised it would be used as a deposition exhibit. 	See id. at 10, 17.
Defendant also contends that “Rule 16 sanctions are not intended to apply to violations of
discovery orders under Rule 37” and therefore does not apply to violations of the Protective Order.
See id. at 18 (emphasis in original). Finally, Defendant argues that the severe sanctions requested
Case 1:25-cv-20251-KMM Document 130 Entered on FLSD Docket 02/27/2026 Page 4 of 16

CASE NO. 25-CV-20251-MOORE/Elfenbein
5
by Plaintiff — including exclusion of evidence and striking of pleadings — are disproportionate
to the conduct at issue, as Plaintiff has failed to demonstrate any concrete harm resulting from the
posting, and that at most, lesser sanctions would be appropriate given the circumstances. See id.
at 13-14, 17.
In its Reply, Plaintiff contends that Defendant’s sworn Declaration statement that he
“immediately” removed the offending Instagram post upon instruction from counsel is materially
false because, by the time counsel notified Defendant of the violation, the Instagram story had
already expired on its own through the platform’s automatic twenty-four-hour expiration feature.
See id. at 7-8 n.1; ECF No. [90-2]. Plaintiff additionally contends that Defendant’s attempt to
challenge the confidentiality designation within his opposition brief is procedurally improper, as
the Protective Order requires written notice, a meet-and-confer, and a formal motion before the
Court may consider any such challenge. See ECF No. [90] at 9-10.
The Court granted Defendant leave to file a Sur-Reply, wherein Defendant makes four
arguments. See ECF No. [104]; ECF No. [109]. First, Defendant contends that the Court should
disregard the new legal arguments, cases, and evidentiary submissions introduced for the first time
in Plaintiff’s Reply, as the Eleventh Circuit precedent states that arguments raised for the first time
on reply are deemed abandoned. See id. at 2-3. Second, Defendant disputes Plaintiff’s accusation
of perjury, clarifying that he deleted an Instagram post — not a story — following his conversation
with counsel, and that unlike a temporary Instagram story, a post does not automatically expire.
See id. at 3-4. Third, Defendant argues that the Protective Order cannot be applied retroactively
to punish conduct that occurred before its entry or before any confidentiality designation was
made, and that Plaintiff’s attempt to characterize pre-Order conduct as violations is both legally
improper and strategically motivated to exclude key evidence. See id. at 4-5. Fourth, Defendant
Case 1:25-cv-20251-KMM Document 130 Entered on FLSD Docket 02/27/2026 Page 5 of 16

CASE NO. 25-CV-20251-MOORE/Elfenbein
6
argues that elevating all materials to “Outside Counsel Eyes Only” is contrary to the public nature
of judicial proceedings, that confidentiality designations must be applied as narrowly as possible,
and that the video at issue was already publicly available and remains subject to Florida public
records disclosure laws. See id. at 5-6.
III. 	LEGAL STANDARD
A. Rule 16(f) Sanctions
Federal Rule of Civil Procedure 16(f)(1) authorizes a court to “issue any just orders” if a
party or its attorney “fails to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)(1)(C)
(emphasis added). 	The sanctions available under Rule 16(f) include those enumerated in Rule
37(b)(2)(A)(ii) through (vii), which authorize the court to prohibit a disobedient party from
supporting or opposing designated claims or defenses, from introducing designated matters into
evidence, or from making certain arguments. See Fed. R. Civ. P. 16(f)(1); 37(b)(2)(A)(ii)-(vii).
Additionally, Rule 16(f)(2) provides that the court “must order the party, its attorney, or both to
pay 	the 	reasonable 	expenses 	— 	including 	attorney’s 	fees 	— 	incurred 	because 	of 	any
noncompliance with this rule, unless the noncompliance was substantially justified or . . . an award
of expenses [would be] unjust.” See Fed. R. Civ. P. 16(f)(2).
“The district court enjoys ‘discretion to decide if there is a pattern of delay or a deliberate
refusal to comply with court orders or directions that justifies a sanction.’” Giovanno v. Fabec,
804 F.3d 1361, 1365 (11th Cir. 2015) (quoting United States v. Samaniego, 345 F.3d 1280, 1284
(11th Cir. 2003)). Generally, the Eleventh Circuit views sanctions contained in Rule 16(f) as being
“designed to punish lawyers and parties for conduct which unreasonably delays or otherwise
interferes with the expeditious management of trial preparation.” See Goforth v. Owens, 766 F.2d
1533, 1535 (11th Cir. 1985). In Goforth, the Eleventh Circuit treated Rule 16(f) as a broad case-
Case 1:25-cv-20251-KMM Document 130 Entered on FLSD Docket 02/27/2026 Page 6 of 16

CASE NO. 25-CV-20251-MOORE/Elfenbein
7
management sanctions hook extending beyond purely “scheduling orders” to other pretrial
directives. 	See id. (finding that Rule 16(f) sanctions may be applied “to punish counsel for his
disregard of the court’s orders to submit a preliminary statement and ultimately to be ready for
trial.”)
In contrast, the Eleventh Circuit’s decision in Lipscher v. LRP Publications, Inc., 266 F.3d
1305 (11th Cir. 2001), has foreclosed a district court’s ability to enforce stipulated protective
orders through Rule 37. In Lipscher, the Eleventh Circuit held, as a matter of first impression, that
a Rule 26(c) protective order is not “an order to provide or permit discovery” within the meaning
of Rule 37(b)(2), and therefore violations of such orders are not sanctionable under that rule. See
id. at 1323. The Eleventh Circuit reasoned that Rule 37(b)(2)’s text authorizes sanctions only for
failures to obey orders that compel the provision or permitting of discovery, and that a protective
order — which restricts rather than compels discovery — does not fall within that scope. See id.
The appellate court declined to decide whether a court’s inherent authority or contempt power
could provide an alternative basis for sanctions. 	Id. 	Nor was it presented with a Rule 16(f)
argument, as those grounds had not been invoked in the lower court. See id.
In a matter within this District, Valdez-Castillo v. Busch Entertainment Corp., No. 06-CV-
20772, 2008 WL 4999175 (S.D. Fla. 2008), the court was confronted with the practical application
of Lipscher. 	There, the court denied a motion for sanctions after plaintiff’s counsel disclosed a
confidential document to the press in clear violation of a protective order. See id. at *2. Though
Valdez-Castillo openly questioned the soundness of Lipscher’s reasoning, it recognized Lipscher
as binding precedent. Id. at *2. Valdez-Castillo thus acknowledged what Lipscher left unresolved;
that foreclosing of Rule 37(b)(2) as a sanctioning vehicle for protective-order violations creates a
meaningful gap in a court’s ability to enforce its own orders, leaving courts with only their inherent
Case 1:25-cv-20251-KMM Document 130 Entered on FLSD Docket 02/27/2026 Page 7 of 16

CASE NO. 25-CV-20251-MOORE/Elfenbein
8
authority, which requires a high bar of bad faith. Id.
Although neither the Eleventh Circuit nor any court in this District has expressly held that
Rule 16(f) authorizes sanctions for violations of a Rule 26(c) stipulated protective order, neither
has held that it cannot. The question therefore remains an open one in this Circuit. Critically, Rule
16(f)(1)(C)’s text is meaningfully broader than Rule 37(b)(2)’s — it does not limit its reach to
orders compelling discovery, but instead authorizes sanctions whenever a party “fails to obey a
scheduling or other pretrial order.” See Fed. R. Civ. P. 16(f)(1)(C) (emphasis added). A stipulated
protective order entered in the course of civil litigation is, by its nature, a pretrial order — it
governs the conduct of the parties during the pretrial phase of the case and is entered by the Court
for the express purpose of facilitating the orderly progress of discovery and trial preparation.
Interference with such an order qualifies as the kind of conduct Rule 16(f) was designed to address.
At least one circuit court has directly addressed this question and embraced this reasoning.
In Huebner v. Midland Credit Mgmt., Inc., 897 F.3d 42, 54–55 (2d Cir. 2018), the Second Circuit
affirmed sanctions imposed under Rule 16(f)(1)(C) against a party who violated a protective
order’s procedural requirements by filing a challenge to a confidentiality designation without first
following the order’s required meet-and-confer procedure. The court held that Rule 16(f)(1)(C),
which authorizes sanctions for failure to obey “a pretrial order,” provided a proper and sufficient
basis for the sanction. See id. at 54.
The application of Rule 16(f) here resolves the enforcement gap identified in Valdez-
Castillo; where Rule 37(b)(2) is unavailable under Lipscher, Rule 16(f) serves as the appropriate
vehicle for enforcing a court’s protective order and sanctioning those who willfully disregard it.
Applying Huebner’s reasoning here would not only be consistent with the text and purpose of Rule
16(f), but would also give meaning to the Protective Order that the Parties themselves stipulated
Case 1:25-cv-20251-KMM Document 130 Entered on FLSD Docket 02/27/2026 Page 8 of 16

CASE NO. 25-CV-20251-MOORE/Elfenbein
9
to and that this Court entered — an order that expressly provides for enforcement through
sanctions.
IV. 	DISCUSSION
To recap, the Parties’ arguments span five broad topics: (1) whether Rule 16(f) provides
the proper procedural vehicle for sanctions arising from a violation of a stipulated protective order;
(2) whether the surveillance footage was properly designated “Highly Confidential” under the
Protective Order; (3) whether Defendant’s April 2, 2025 social media posts can properly be
characterized as violations of the Protective Order given that the first predated its entry; (4)
whether Defendant’s April 10, 2025 and September 17, 2025 Instagram posts were a knowing and
willful violation of the Protective Order or an inadvertent act; and (5) whether the severity of the
sanctions sought by Plaintiff are proportionate to the conduct at issue or whether lesser sanctions
would adequately address the harm and deter future violations. The Court takes each in turn.
A. The Court Has Authority to Impose Sanctions Under Rule 16(f) for Defendant’s
Violation of the Protective Order.
As a threshold matter, the Court addresses Defendant’s argument that Rule 16(f) is an
improper vehicle for sanctions arising from a violation of the Protective Order. See ECF No. [88]
at 17-18. The Court disagrees. As set forth above, Rule 16(f)(1)(C) broadly authorizes sanctions
whenever a party “fails to obey a scheduling or other pretrial order.” 	See Fed. R. Civ. P.
16(f)(1)(C). 	The Protective Order entered on April 9, 2025 is, by its nature, a pretrial order
governing the conduct of the Parties during the pretrial phase of this litigation. See ECF No. [32].
Under the Eleventh Circuit’s reading of Rule 16(f) in Goforth, the rule extends beyond purely
administrative scheduling directives to any pretrial order tied to the orderly management of trial
preparation. 	See Goforth, 766 F.2d at 1535. 	Defendant’s public dissemination of materials
designated under the Protective Order is precisely the kind of conduct that interferes with the
Case 1:25-cv-20251-KMM Document 130 Entered on FLSD Docket 02/27/2026 Page 9 of 16

CASE NO. 25-CV-20251-MOORE/Elfenbein
10
expeditious management of this litigation. 	Moreover, while Rule 37(b)(2) is foreclosed as a
sanctioning vehicle under Lipscher, 266 F.3d at 1323, and while this Circuit has not previously
resolved whether Rule 16(f) fills that gap, the Court finds the Second Circuit’s reasoning in
Huebner persuasive and adopts it here. See Huebner, 897 F.3d at 54-55. To hold otherwise would
leave this Court without any rule-based mechanism to enforce its own Protective Order —
precisely the enforcement gap that Valdez-Castillo identified and lamented. See Valdez-Castillo,
2008 WL 4999175, at *2. Accordingly, the Court finds that Rule 16(f) provides the appropriate
basis for sanctions here.
The Court also briefly addresses inherent authority. Although the Court’s inherent power
may, in appropriate circumstances, support sanctions for a violation of a protective order, the Court
declines to reach that question here. Invocation of a court’s inherent authority requires a finding
of subjective bad faith. See Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998) (“The key to
unlocking a court’s inherent power is a finding of bad faith.”) (citing In re Mroz, 65 F.3d 1567,
1575 (11th Cir. 1995)). 	Although the Parties have mentioned the Court’s inherent authority,
neither Party has briefed the bad faith standard or argued that the conduct at issue satisfies it.
Because Rule 16(f) provides an adequate and independent basis for the relief the Court grants, the
Court need not and does not reach the inherent authority question.
B. Defendant Violated the Protective Order
Having established the applicable legal framework, the Court turns to whether Defendant
violated the Protective Order. The Court finds that he did. The Court entered the Protective Order
on April 9, 2025. See ECF No. [32]. By operation of paragraph 19, all materials produced by a
non-party — including the surveillance footage the MBPD produced on March 26, 2025 — were
automatically designated “Outside Counsel Eyes Only” upon the Order’s entry, without any
Case 1:25-cv-20251-KMM Document 130 Entered on FLSD Docket 02/27/2026 Page 10 of 16

CASE NO. 25-CV-20251-MOORE/Elfenbein
11
affirmative act by either party for a period of 30 days. 	See id. at ¶19. 	Defendant posted the
surveillance footage on April 10, 2025, one day after the Protective Order took effect. See ECF
No. [61] at 3. 	By that date, the footage was subject to the Protective Order’s most restrictive
designation, and public dissemination to Defendant’s 90,000+ Instagram followers plainly fell
outside the narrow categories of persons permitted to access such materials under Paragraphs 31
and 34. See ECF No. [32] at ¶¶31, 34; ECF No. [61] at 5.
On April 16, 2025, Plaintiff formally designated all MBPD materials as “Highly
Confidential.” See ECF No. [61] at 3. 	Defendant removed his posts upon being so advised by
counsel. 	See ECF No. [88] at 9. 	Significantly, upon doing so, Defendant publicly posted on
Twitter that he was “required under the rules to remove the video” — a statement that confirms
his actual knowledge of the Protective Order, its confidentiality designation provisions, and his
obligation to comply with them. 	See ECF No. [61] at 4-5; ECF No. [61-3]. 	Defendant further
acknowledged that the proper course, if he disagreed with the designation, was to challenge it
through the Court — a process he never initiated. See id.
On September 17, 2025, with full knowledge of the foregoing, Defendant again posted the
surveillance footage to his public Instagram account. 	See ECF No. [61] at 5-6. 	Defendant’s
explanation — that he was recovering from back surgery, taking prescribed opioid pain
medication, and mistakenly believed the footage was no longer confidential because it would be
used as a deposition exhibit — does not persuade the Court that the violation was inadvertent. See
ECF No. [88] at 10; ECF No. [88-1] at ¶¶29-31. Defendant had previously confirmed, in his own
words in a public post, that he understood the footage remained confidential until the Court
determined otherwise. 	He never followed the procedure to challenge the footage’s “Highly
Confidential” designation under the Protective Order. His explanation that he misunderstood his
Case 1:25-cv-20251-KMM Document 130 Entered on FLSD Docket 02/27/2026 Page 11 of 16

CASE NO. 25-CV-20251-MOORE/Elfenbein
12
counsel’s reference to the footage being used at a deposition as somehow lifting the confidentiality
designation is not credible given his own prior written acknowledgment of his obligations.
The Court, however, does not find Defendant’s April 2, 2025 post as a separate violation.
That post occurred before the Protective Order was entered on April 9, 2025, and before any
confidentiality designation had been made. 	The Court agrees with Defendant that applying the
Protective Order retroactively to conduct that predates its entry would be improper. See ECF No.
[109] at 4-5. 	Accordingly, the Court’s analysis is limited to Defendant’s conduct on and after
April 9, 2025.
C. The Court Declines to Address Defendant’s Remaining Arguments for Failure to
Abide By the Protective Order’s Procedure
Defendant’s argument that the surveillance footage was publicly available and, therefore,
could not properly be designated as “Highly Confidential” under the Protective Order’s own terms
is unavailing. See ECF No. [88] at 8-9. Paragraph 44 of the Protective Order provides a clear and
unambiguous procedure for challenging an improper confidentiality designation: written notice to
the designating party, a good-faith meet-and-confer, and, if unresolved, a motion to the Court —
all while continuing to treat the material as designated in the interim. See ECF No. [32] at ¶44.
Defendant never availed himself of this procedure. He acknowledged in his own April 16, 2025
post that he intended to challenge the designation but was “required under the rules” to remove the
footage in the meantime. 	See ECF No. [61] at 4-5. 	He then simply posted the footage again
without filing any challenge. A party subject to a court order cannot unilaterally decide the order
does not apply to him and act accordingly. 	The proper course was to abide by the procedure
outlined in the Protective Order and, if unresolved, seek relief from this Court.
The Court is careful to note that it makes no determination at this time as to whether the
surveillance footage was properly designated as “Highly Confidential” under the terms of the
Case 1:25-cv-20251-KMM Document 130 Entered on FLSD Docket 02/27/2026 Page 12 of 16

CASE NO. 25-CV-20251-MOORE/Elfenbein
13
Protective Order. 	That question is not ripe for the Court’s consideration. 	Defendant has never
initiated the designation challenge procedure prescribed in paragraph 44 — he has not provided
written notice to Plaintiff identifying the basis for his challenge, engaged in the required meet-and-
confer, or filed a motion seeking relief from the Court. See id. at ¶44. Until Defendant complies
with that procedure, the propriety of the designation is not properly before this Court. If he wishes
to challenge the “Highly Confidential” designation, Defendant must comply with the requirements
of paragraph 44 of the Protective Order and seek Court intervention should the dispute remain
unresolved.1
D. Sanctions Are Warranted, But Limited to Attorney’s Fees
Having found that Defendant violated the Protective Order, the Court turns to the
appropriate sanction. 	Plaintiff requests a broad array of relief, including preclusion of the
surveillance footage at trial, an order to show cause for contempt, permission to redesignate all
materials as “Outside Counsel Eyes Only,” striking of pleadings, and an award of attorney’s fees
and expenses. See ECF No. [61] at 7-8. The Court finds that the most severe of these sanctions
— preclusion of evidence, striking of pleadings, and redesignation of all materials — are not
warranted at this time.
While Defendant’s conduct was knowing and disregarded a clear Court Order, the severity
of the sanctions imposed must be proportionate to the circumstances. 	The Eleventh Circuit has
made clear that before imposing the most severe Rule 16 sanctions, such as dismissal, a court must
1 The Court also rejects Defendant’s argument that it should disregard the new legal arguments and evidence
presented in Plaintiff’s Reply. See ECF No. [109] at 2-3. The Court granted Defendant leave to file a Sur-
Reply specifically to address any new arguments or evidence raised in Plaintiff’s Reply. See ECF No.
[104]. Defendant availed himself of that opportunity. See ECF No. [109]. Having had a full and fair
opportunity to respond to any new arguments contained in the Reply, Defendant cannot now claim prejudice
from its consideration. Accordingly, the Court will consider the arguments in Plaintiff’s Reply and has
considered all submissions from the Parties in rendering this ruling.
Case 1:25-cv-20251-KMM Document 130 Entered on FLSD Docket 02/27/2026 Page 13 of 16

CASE NO. 25-CV-20251-MOORE/Elfenbein
14
find both that a party engaged in a clear pattern of delay or willful contempt and that lesser
sanctions would not suffice. 	See World Thrust Films, Inc. v. Int’l Family Entm’t, Inc., 41 F.3d
1454, 1456 (11th Cir. 1995). The World Thrust Films court reversed a dismissal sanction imposed
for failure to comply with scheduling requirements precisely because the district court failed to
make the necessary finding that lesser sanctions would not adequately address the misconduct.
See id. That same principle applies with equal force here. While the record reflects a knowing
violation of a Court Order, the Court cannot find on this record that the most severe sanctions
available — preclusion of the surveillance footage, striking of pleadings, or redesignation of all
materials as “Outside Counsel Eyes Only” — are necessary when a lesser sanction, namely an
award of attorney’s fees, will adequately address the harm caused and deter future violations.
Preclusion of the surveillance footage would be a significant evidentiary sanction that could
materially affect the merits of this case, and the Court declines to impose it absent a more
developed record establishing that lesser relief would be insufficient.
The Court does, however, find that an award of reasonable attorney’s fees and expenses
incurred in connection with the briefing of the Motion for Sanctions is warranted and appropriate.
Rule 16(f)(2) provides that, upon a finding of noncompliance, the Court “must order the party, its
attorney, or both to pay the reasonable expenses — including attorney’s fees — incurred because
of any noncompliance with this rule,” unless the noncompliance was substantially justified or an
award would be unjust. 	See Fed. R. Civ. P. 16(f)(2). 	Defendant’s noncompliance was not
substantially justified. 	He had actual knowledge of the Protective Order, acknowledged his
obligations under it in writing, and posted the footage anyway. The attorney’s fees and expenses
Plaintiff incurred in bringing this Motion are a direct consequence of that conduct and must be
borne by Defendant.
Case 1:25-cv-20251-KMM Document 130 Entered on FLSD Docket 02/27/2026 Page 14 of 16

CASE NO. 25-CV-20251-MOORE/Elfenbein
15
Additionally, the Court takes this opportunity to admonish Defendant in the clearest terms.
The Protective Order is an Order of this Court. It is not optional. It is not subject to Defendant’s
personal assessment of whether its terms are fair, whether the underlying designation is
appropriate, or whether the footage is already available in some other form. If Defendant believes
a designation is improper, the Protective Order provides a mechanism to challenge it. 	That
mechanism must be used. 	Defendant cannot simply disregard the Protective Order and take
matters into his own hands. The Court further warns Defendant that any future violation of the
Protective Order will be treated with the utmost seriousness. 	Should Defendant again publicly
disseminate materials designated under the Protective Order without first obtaining relief from this
Court in the form of a de-designation, the Court will entertain whether any or all of the following
sanctions authorized by Rule 37(b)(2)(A) are appropriate under the circumstances:
(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; or
(vi) 	rendering a default judgment against the disobedient party.
See Fed. R. Civ. P. 37(b)(2)(A)(i)-(vi). 	Defendant is warned that this Court will not hesitate to
impose any of these sanctions if the circumstances warrant them.
V. 	CONCLUSION
For 	the 	foregoing 	reasons, 	Defendant’s 	Motion 	for 	Sanctions, 	ECF No. 	[61], 	is
GRANTED in part and DENIED in part. By March 13, 2026, Plaintiff’s counsel shall provide
Case 1:25-cv-20251-KMM Document 130 Entered on FLSD Docket 02/27/2026 Page 15 of 16

CASE NO. 25-CV-20251-MOORE/Elfenbein
16
counsel for Defendant with an Affidavit that sets forth counsel’s hourly rate and experience, the
amount of attorney’s fees and costs expended in researching and drafting all briefing in connection
with the Motion for Sanctions, including time spent reviewing and analyzing Defendant’s
Response, Defendant’s Motion for Leave to File a Sur-Reply, and Defendant’s Sur-Reply, along
with all time entries associated with these tasks. 	By March 20, 2026, Defendant shall notify
Plaintiff if he objects to the amount of attorney’s fees and costs sought. If there is no dispute as to
the amount of attorney’s fees and costs, by March 27, 2026, Plaintiff shall file a Notice informing
the Court that the Parties have stipulated to the amount, providing the stipulated sum for attorney’s
fees and costs. Alternatively, if Defendant disputes the amount, by March 27, 2026, Plaintiff shall
file a Motion requesting the entry of an award of reasonable attorney’s fees and costs, attaching a
supporting affidavit and the corresponding time entries, and Defendant will have an opportunity
to file a Response and Plaintiff a Reply as provided in the Local Rules.
DONE and ORDERED in Chambers in Miami, Florida on February 26, 2026.
_____________________________________
MARTY FULGUEIRA ELFENBEIN
UNITED STATES MAGISTRATE JUDGE
cc: All Counsel of Record
Case 1:25-cv-20251-KMM Document 130 Entered on FLSD Docket 02/27/2026 Page 16 of 16