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Newmark Realty Capital, Inc. v. BGC Partners, Inc.

United States District Court, N.D. California

May 24, 2018

NEWMARK REALTY CAPITAL, INC., Plaintiff,
v.
BGC PARTNERS, INC., et al., Defendants.

          ORDER ON MOTIONS TO COMPEL AND SETTING HEARING TO ADDRESS THE COURT'S QUESTIONS Docket Nos. 361, 368, 370, 372, 376, 379, and 382

          SUSAN VAN KEULEN UNITED STATES MAGISTRATE JUDGE

         On or near the deadline for the parties to file motions to compel party non-deposition fact discovery, the parties filed a number of discovery motions. See ECF 361, 368, 370, 372, 376, 379, and 382.[1] The Court has reviewed the parties' submissions and the relevant discovery requests and sets forth rulings below as to several of the disputes. As to other disputes, the Court has requested additional information from the parties and sets a hearing to address these issues on May 29, 2018 at 1:30 p.m., with each party's lead meet and confer counsel. The Court may require the parties to engage in additional meet and confer discussions during and after the hearing; counsel must ensure their availability accordingly.

         I. ESI ISSUES

         The Court first addresses Defendants' argument, which Defendants reiterate in connection with several of Plaintiff's pending motions to compel, concerning their obligations under the ESI order. Defendants appear to take the position that any documents in ESI format that are responsive to requests for production need only be produced if they hit on Plaintiff's ESI search terms and custodians. See, e.g., ECF 372 at 5 (Defendants' argument with respect to Plaintiff's RFP No. 134 that “[t]he vast majority of responsive documents would be in ESI format and governed by the ESI Order” and “Plaintiff cannot seek ESI documents outside the ESI Order-i.e., if Plaintiff wanted ESI relating to these financing transactions, Plaintiff was required to propose search terms for custodians aimed at capturing relevant ESI”).

         However, the search term and custodian limitations in the ESI order apply only to email, not to other forms of ESI. Paragraph 30 of the ESI order states that “[t]he parties agree to search central repositories or relevant portions thereof to the extent that either party reasonably anticipates that such locations may contain non-duplicative Responsive Documents, ” unless the parties agree otherwise. ECF 168 at ¶ 30. Only Section VI, entitled “Email Production, ” contains specific limitations on the number of custodians or search terms, and those limitations apply only to “email production requests.” Id. at ¶¶ 33, 34.

         At the hearing, both parties must be prepared to address whether in discovery they have produced all non-email documents in ESI format that are responsive to RFPs, or only documents in ESI format that hit on the requesting party's designated search terms and custodians. The Court will reserve a ruling on this issue until the hearing; any statement in this Order indicating that the scope of what a party has produced in response to an RFP is sufficient is subject to the Court's future ESI ruling and is not intended as a ruling on whether additional ESI searches will be required.

         II. PLAINTIFF'S MOTIONS TO COMPEL

         a. ECF 368: Plaintiff's Motion to Compel Defendant's Responses to RFP Nos. 167 and 168

         Plaintiff moves to compel further responses to RFP Nos. 167 and 168, which seek communications between Defendants and various media outlets. ECF 368. Defendants' responses to these RFPs consist of objections.

         Plaintiffs argue that the information sought is relevant because it may show instructions or payments by Defendants to media outlets to place Defendants' ads next to articles about Plaintiff or next to articles in which the term “Newmark” appears, which could cause confusion or exploit Plaintiff's goodwill in its trademark. Plaintiff cites one instance in February 2018 when an ad for Defendants appeared next to an article about Plaintiff in the Registry. ECF 368 at 1. Plaintiff also cites an article about Plaintiff in the Commercial Mortgage Alert on February 9, 2018 that referred to Plaintiff as “Newmark Realty, ” even though, according to Plaintiff, that publication has traditionally referred to Plaintiff as simply “Newmark.” Id. More generally, Plaintiff also argues that the information sought is relevant because “Defendants put the content of their advertisements in media outlets at issue by relying on them as evidence of their geographic scope, trade names, and services offered.” Id. at 2.[2]

         Defendants argue that RFP Nos. 167 and 168 are facially overbroad and disproportionate because they seek any communications with any media outlets relating to nearly any aspect of Defendants' business and are not limited by time, geography, or otherwise. Id. at 3. Defendants argue that responding to the RFPs would require them to “canvass records across thousands of brokers and employees.” Id. at 4. Defendants also argue that the motion is an attempt to “circumvent” the ESI order in this case. Defendants state that “recent communications, if any, would have occurred electronically” and that they have not withheld any documents pertaining to Defendants' advertisements or media placement “that ‘hit' on Plaintiff's ESI terms and custodians.” Id. at 5.

         The Court disagrees with Defendants' characterization that they would be required to canvas thousands of brokers and employees to collect relevant documents, given that only a limited number of Defendants' employees are likely to have been involved with the companies' advertisement and media placement activities. However, the Court agrees with Defendants that the requests, as phrased, are overly broad and disproportional to the needs of the case.

         Ruling: The Court will limit RFP Nos. 167 and 168 to the particular incidents identified by Plaintiff in its motion. Defendants are to produce documents that reflect communications between Defendants and the Registry and communications between Defendants and the Commercial Mortgage Alert in the relevant time frames, even if such communications are stored electronically. The parties must be prepared to meet and confer before or at the hearing to propose appropriate date parameters for Defendants' search, taking into account the lead time during which any communications between the publications and Defendants would have taken place.

         b. ECF 372: Plaintiff's Motion to Compel Defendants' Responses to RFP Nos. 39, 41, 43, 83, 120, 121, and 134

         Plaintiff seeks to compel further responses to several RFPs on various topics.

         i. RFP Nos. 39, 41, and 43

         These RFPs seek documents pertaining to the offering and/or performance of commercial mortgage brokerage services by several companies before their acquisition by Defendants. Defendants responded with objections and an agreement to produce only that information, if any, identifying the nature of the acquired companies' real estate mortgage brokerage services that is contained in Defendants' due diligence files related to the acquisitions.

         Plaintiff argues that the documents sought are relevant to Defendants' laches defense, particularly Defendants' argument that Plaintiff knew or should have known that Defendants' affiliates were providing the relevant mortgage services prior to the laches period, and that the limitation in Defendants' responses is improper. Defendants argue that the RFPs as phrased are overly broad and that Defendants' limitation on its search is reasonable. Defendants also reiterate their argument concerning the scope of their obligation to produce ESI documents, which the Court addressed above.

         Ruling: The Court finds that RFP Nos. 39, 41, and 43 as phrased are overly broad and disproportional to the needs of the case, considering that the information sought is of limited relevance to Defendants' laches argument, which focuses on Plaintiff's knowledge concerning the activities of Defendants' affiliates. In light of these considerations, Defendants' agreement to limit its production to responsive documents from its due diligence files is appropriate, and Plaintiff's motion to compel a further response to RFP Nos. 39, 41, and 43 is DENIED, subject to the Court's ruling on the ESI issue.

         ii. ...


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