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

Filing 359

ORDER ON 356 DEFENDANTS' MOTION TO COMPEL ESI FROM PLAINTIFF. Signed by Magistrate Judge Susan van Keulen on 5/14/2018. (ofr, COURT STAFF) (Filed on 5/14/2018)

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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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United States District Court
Northern District of California

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Case No. 16-cv-01702-BLF (SVK)
ORDER ON DEFENDANTS' MOTION
TO COMPEL ESI FROM PLAINTIFF

v.
BGC PARTNERS, INC., et al.,

Re: Dkt. No. 356

Defendants.
Before the Court is the parties’ Joint Statement Regarding Motion for Determination of

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Discovery Dispute re Defendants’ Motion to Compel ESI from Plaintiff. ESI 356. On April 27,

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2018, Defendants first requested that Plaintiff run search terms across the emails of Jeff Wilcox,

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one of Plaintiff’s principals, and produce documents by May 4, 2018. Id. at 1. Plaintiff argues

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that Defendants’ request for ESI from Mr. Wilcox was untimely because it was not made until

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2:27 p.m. on April 27, 2018, the day that fact discovery in this case closed (with the exception of

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depositions and third party deposition discovery). Id. at 3-5; see also ECF 268. Defendants argue

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they learned of “highly significant” emails involving Mr. Wilcox from Plaintiff’s April 9

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production, the request for Mr. Wilcox’s ESI was made within the fact discovery period, and

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Plaintiff is still producing ESI. ECF 356 at 1-3.

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Although there is some ongoing ESI activity in this case as a result of agreements between

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the parties and this Court’s recent discovery orders, the Court finds that Defendants’ request for

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Mr. Wilcox’s ESI is untimely. The discovery cut-off is the deadline for discovery to be

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completed, not the deadline for discovery requests to be served. See Civil L.R. 37-3 (“Unless

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otherwise ordered, as used in any order of this Court or in these Local Rules, a ‘discovery cut-off’

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is the date by which all responses to written discovery are due and by which all depositions must

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be concluded” and “[d]iscovery requests that call for responses or depositions after the applicable

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discovery cut-off are not enforceable, except by order of the Court for good cause shown.”).

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Defendants’ request for Mr. Wilcox’s ESI was made the afternoon the relevant phase of

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discovery closed and thus was untimely because it could not be completed by the discovery cut-

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off. Nor is there good cause to permit Defendants’ late request. Plaintiff points out that

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Defendants have been aware of Mr. Wilcox since at least February 12, 2017, when Plaintiff

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submitted a declaration from Mr. Wilcox in this case. ECF 205. Defendants admit that they have

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been aware of the alleged significance of Mr. Wilcox since Plaintiff’s April 9 document

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production. ECF 356 at 1. Yet Defendants waited until hours before discovery ended on April 27

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to request ESI from Mr. Wilcox. Defendants have also been aware of brewing ESI disagreements
in this case since at least the end of February (see ECF 279 at 1 (Defendants’ statement

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United States District Court
Northern District of California

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summarizing history of ESI dispute)), but nevertheless agreed to maintain the April 27 cutoff for

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party document productions when, on April 5, the parties filed a stipulated request that Judge

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Freeman extend other discovery deadlines in the case. See ECF 266. Moreover, Defendants have

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not demonstrated that the ESI discovery they seek from Mr. Wilcox is proportional to the needs of

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the case, particularly in light of the amount of ESI already produced by both parties.

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Accordingly, Defendants’ motion to compel Plaintiff to produce ESI from Mr. Wilcox is
DENIED.
Defendants also purport to “reserve the right to address concerns (if any) relating the

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Plaintiff’s forthcoming ESI production” at an unspecified later date. ECF 356 at 3. The Court

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cautions the parties that any new motions to compel relating to written discovery and ESI issues

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must be filed by May 18, 2018. ECF 268 at 3. The Court will not entertain late motions unless

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the parties request and obtain an order from Judge Freeman modifying the case schedule.

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SO ORDERED.
Dated: May 14, 2018

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SUSAN VAN KEULEN
United States Magistrate Judge

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