Case 0:15-cv-62334-RLR Document 36 Entered on FLSD Docket 08/29/2016 Page 1 of 5

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
TAURIGA SCIENCES, INC.,
A Florida Corporation.
CASE NO.: 15-CV-62334-RLR
Plaintiff
vs.
COWAN, GUNTESKI & CO., P.A.
A Foreign Corporation; DONALD
COWAN, an Individual; and WILLIAM
MEYLER, an Individual.
Defendant.
________________________________/
PLAINTIFFS MOTION TO COMPEL
DISCOVERY RESPONSES AND REQUEST FOR ATTORNEYS FEES
The Plaintiff, TAURIGA SCIENCES, INC., (Tauriga), files this, its Motion to Compel
Discovery Responses and Request for Attorneys Fees pursuant to Fed. R. Civ. P. 37 and Local
Rule 26.1(g), and does state:
BACKGROUND
This is an action by Tauriga, a Florida Corporation authorized to conduct business in
Broward County, Florida, against Cowan, Gunteski, & Co. P.A. (CGC), for accounting
malpractice, unjust enrichment, and against Meyler and Cowan for Negligent Misrepresentation
in the disposition of Taurigas accounting affairs.

As part and parcel to the allegations against

the Defendants, the Plaintiff has alleged that, as a publicly traded company, Tauriga must engage
a registered public accounting firm in order to issue an independent audit of its financial
statements.

In 2013, Tauriga engaged the services of the Defendant, CGC to conduct its

independent audit. CGC utilized the services of the Defendant, William Meyler, who had
conducted an audit of Taurigas financial statements for the years 2009-2012. CGC failed to advise

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Tauriga that, by utilizing Meyler after five years of service, it would render the 2014 audit unusable
pursuant to Section 10A of the Securities and Exchange Act, which requires partner rotation. CGC
was publicly reprimanded for these actions.
The unusable report resulted in Taurigas publicly traded shares being delisted. As a
result of this delisting, Tauriga has endured difficulties in securing additional working capital in
order to fund its ongoing operations. Moreover, the negative press has created negative goodwill
between Tauriga and its investors, shareholders and associations, which has further damaged its
ongoing business, and required Tauriga to utilize its own resources in order to continue its ongoing
operations. Additionally, the delisting of Taurigas stock, caused by CGC, has created a potential
contractual default between Tauriga and its other business associations for Taurigas failure to
comply with its reporting requirements
Moreover, as alleged in the Complaint, as a result of the unusable audit report, Tauriga has
expended over Fifty-Thousand ($50,000.00) additional dollars in order to engage new auditors to
re-audit Tauriga in an attempt to comply with the Security and Exchange Commissions reporting
requirement. One of the accounting/auditing firms utilized by Tauriga, during the audit process,
was Cherry Bakaert, who was specifically recommended by the Defendants.

To the best

knowledge and belief, the Defendants worked closely with Cherry Bakaert during the original
audit process which resulted in the unusable audit report. Cherry Bakaert is located in Fort
Lauderdale, Florida.
On or about July 21, 2016, the Parties conducted their conference pursuant to Federal Rule
26.
On July 25, 2016, Plaintiff served its First Request for Production to each Defendant,
Cowan, Gunteski & Co., P.A., Donald Cowan, and William Meyler (Defendants). A true and

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correct copy of the Requests for Production is attached hereto as Composite Exhibit A.
Therefore, Defendants responses to Plaintiffs First Requests for Production were due on August
24, 2016. Defendants have failed to respond to Plaintiffs discovery requests, and have also failed
to file a Motion for Extension of Time to respond to Plaintiffs First Requests for Production.
In an attempt to avoid responding to Plaintiffs Requests for Production, Defendants filed
a Motion for Protective Order (Protective Order) on August 23, 2016. Within Defendants
Protective Order, they request that the Court stay discovery until Defendants jurisdictional
challenges are resolved and for a confidentiality order to be entered.
The next day, August 24, 2016, the Court entered an Order denying Defendants Motion
for Protective Order.

Despite the fact that their Motion for Protective Order was denied,

Defendants still have not produced responses to Plaintiffs First Request for Production.
On August 24, 2016, Plaintiffs counsel wrote Defendants counsel, advising that the
discovery responses were past due. On August 25, 2016, Defendants counsel responded, but did
not state when they would respond to Plaintiffs First Request for Production. Please see attached
correspondence, Exhibit B. Unable to reach a resolution on this matter, Plaintiff must now move
for this Court to compel Defendants to produce the discovery as requested below.
ARGUMENT
Fed. R. Civ. P. 34 states that parties must respond to Requests for Production within thirty
(30) days of being served with discovery. Pursuant to Fed. R. Civ. P. 37(A) and (B), if a party
fails to respond to discovery as required by Rule 26(a), a party may move to compel disclosure
and for appropriate sanctions.
The general scope of discovery is defined by Fed. R. Civ. P. 26(b)(1) as follows: "Parties
may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter

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involved in the pending action, whether it relates to the claim or defense of the party seeking
discovery or to the claim or defense of any other party, including the existence, description, nature,
custody, condition and location of any books, documents, or other tangible things and the identity
and location of persons having knowledge of any discoverable matter.
The key phrase in this definition -- "relevant to the subject matter involved in the pending
action" -- has been construed broadly to encompass any matter that bears on, or that reasonably
could lead to other matter that could bear on, any issue that is or may be in the case. Oppenheimer
Fund, 437 U.S. 340, 351 (U.S. 1978), See also, Hickman v. Taylor, 329 U.S. 495, 501 (1947).
CONCLUSION
Defendants have failed to provide their responses to Plaintiffs First Request for Production
and have failed to provide any responsive documents. The information Plaintiff hopes to obtain
in response to their Request for Production is relevant to the issues in this case. For this reason,
Plaintiff requests that Defendants be ordered to pay an award of attorneys fees incurred in bringing
this motion pursuant to Fed. R. Civ. P. 37(a)(5).
LOCAL RULE 7.1.a.3 CERTIFICATION
Pursuant to Local Rule 7.1(a)(3), undersigned counsel for Plaintiff certifies that undersigned
counsel, Kraig Weiss, Esq., conferred with counsel for Defendants, by e-mail on August 24, 2016,
in a good faith effort to resolve the issues raised by this motion.
Dated: August 29, 2016
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Respectfully submitted,
SILVERBERG & WEISS, P.A.
Attorney for Plaintiff
1290 Weston Road, Suite 218
Weston, Florida 33326
Primary e-mail: Notices@pkslegal.com
Tel: (954) 384-0998
Fax: (954) 384-5390
By:_/s/ Paul K. Silverberg______
Paul K. Silverberg, Esq.
Fla. Bar No. 147877
Kraig S. Weiss, Esq.
Fla. Bar No. 63193
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 29th day of August, 2016, I electronically filed the
foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing
document is being served this day in all counsel of record identified on the attached Service List
via transmission of Notice of Electronic Filing generated by CM/ECF.

By:_/s/ Paul K. Silverberg______

Paul K. Silverberg, Esq.

SERVICE LIST
Andrew L. Cole
LeClairRyan
Andrew.cole@leclairryan.com
180 Admiral Cochrane Drive, Suite 520
Annapolis, Maryland 21401
P. (410) 224-3000
F. (410) 224-0098
Attorneys for Defendants Cowan, Gunteski
& Co., P.A., Donald Cowan and William Meyler