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

Filing 352

ORDER ON 347 JOINT STATEMENT ON PLAINTIFF'S MOTION TO COMPEL DEFENDANTS TO PRODUCE ESI AND MEET AND CONFER REQUIREMENTS. Signed by Magistrate Judge Susan van Keulen on 5/9/2018. (ofr, COURT STAFF) (Filed on 5/9/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NEWMARK REALTY CAPITAL, INC.,
Plaintiff,

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v.

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BGC PARTNERS, INC., et al.,
Defendants.

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United States District Court
Northern District of California

1. Order on Plaintiff’s Motion to Compel ESI

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Before the Court is the parties’ Joint Statement on Plaintiff’s Motion to Compel
Defendants to Produce ESI. ECF 347. Plaintiff moves to compel Defendant to produce ESI in
response to six disputed search terms. Defendants oppose the motion, arguing that the terms are
overly broad and that the searches would impose undue burden and expense on Defendants.

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As a preliminary matter, the Court finds Defendants’ argument that responding to the
disputed search terms would pose undue burdens and expenditures unpersuasive in the context of
this case. The ESI Order in this case requires the parties to use “reasonable efforts” to perform
proximity searching. ECF 168 at ¶ 10. According to Defendants, they are not able to perform
proximity searching in-house and must incur substantial costs to have an outside vendor perform
this task. However, requiring Defendants to perform, or to have performed, searches using
proximity limitations is in no way unreasonable. Indeed, given both sides’ references to the high
stakes nature of this litigation and their scorched earth approach to discovery, proximity searching
is not only reasonable but essential.

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ORDER ON JOINT STATEMENT ON
PLAINTIFF’S MOTION TO COMPEL
DEFENDANTS TO PRODUCE ESI AND
MEET AND CONFER
REQUIREMENTS
Re: Dkt. No. 347

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Case No. 16-cv-01702-BLF (SVK)

Notwithstanding the Court’s rejection of the foregoing argument, however, the Court finds
Plaintiff’s disputed search terms to be overly broad, ambiguous, and without adequate limitations
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to bring them within the proportional needs of this case, and therefore Plaintiff’s motion is

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DENIED.

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2. Order on Meet and Confer Requirements

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Although not the basis of the Court’s ruling on Plaintiff’s motion to compel, the Court

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remains concerned about the quality of both parties’ meet and confer efforts in this case. The

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Court notes that the parties’ joint statement indicates that they “met and conferred on February 21,

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2018 and April 3, 2018” on the issues raised in this motion, which was filed over a month later.

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Since April 3, 2018, this Court has issued numerous discovery orders, including several on ESI

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issues, which the Court believes could have informed further negotiations between the parties.
The Court orders a reset. Each side is to identify for the Court by 5 p.m. on May 10, 2018, the

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United States District Court
Northern District of California

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member of their team responsible for leading the meet and confer efforts with the other side. The

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meet and confer leader must personally participate in all meet and confer efforts with full authority

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to negotiate and adjust discovery demands or responses, join any hearings on discovery matters

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and, regardless of whether there is a hearing, be available to respond to any further inquiries of the

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Court.

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SO ORDERED.
Dated: May 9, 2018

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SUSAN VAN KEULEN
United States Magistrate Judge

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