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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NEWMARK REALTY CAPITAL, INC., Plaintiff, 8 9 10 United States District Court Northern District of California 11 12 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 13 Discovery Dispute re Defendants’ Motion to Compel ESI from Plaintiff. ESI 356. On April 27, 14 2018, Defendants first requested that Plaintiff run search terms across the emails of Jeff Wilcox, 15 one of Plaintiff’s principals, and produce documents by May 4, 2018. Id. at 1. Plaintiff argues 16 that Defendants’ request for ESI from Mr. Wilcox was untimely because it was not made until 17 2:27 p.m. on April 27, 2018, the day that fact discovery in this case closed (with the exception of 18 depositions and third party deposition discovery). Id. at 3-5; see also ECF 268. Defendants argue 19 they learned of “highly significant” emails involving Mr. Wilcox from Plaintiff’s April 9 20 production, the request for Mr. Wilcox’s ESI was made within the fact discovery period, and 21 Plaintiff is still producing ESI. ECF 356 at 1-3. 22 Although there is some ongoing ESI activity in this case as a result of agreements between 23 the parties and this Court’s recent discovery orders, the Court finds that Defendants’ request for 24 Mr. Wilcox’s ESI is untimely. The discovery cut-off is the deadline for discovery to be 25 completed, not the deadline for discovery requests to be served. See Civil L.R. 37-3 (“Unless 26 otherwise ordered, as used in any order of this Court or in these Local Rules, a ‘discovery cut-off’ 27 is the date by which all responses to written discovery are due and by which all depositions must 28 be concluded” and “[d]iscovery requests that call for responses or depositions after the applicable 1 discovery cut-off are not enforceable, except by order of the Court for good cause shown.”). 2 Defendants’ request for Mr. Wilcox’s ESI was made the afternoon the relevant phase of 3 discovery closed and thus was untimely because it could not be completed by the discovery cut- 4 off. Nor is there good cause to permit Defendants’ late request. Plaintiff points out that 5 Defendants have been aware of Mr. Wilcox since at least February 12, 2017, when Plaintiff 6 submitted a declaration from Mr. Wilcox in this case. ECF 205. Defendants admit that they have 7 been aware of the alleged significance of Mr. Wilcox since Plaintiff’s April 9 document 8 production. ECF 356 at 1. Yet Defendants waited until hours before discovery ended on April 27 9 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 11 United States District Court Northern District of California 10 summarizing history of ESI dispute)), but nevertheless agreed to maintain the April 27 cutoff for 12 party document productions when, on April 5, the parties filed a stipulated request that Judge 13 Freeman extend other discovery deadlines in the case. See ECF 266. Moreover, Defendants have 14 not demonstrated that the ESI discovery they seek from Mr. Wilcox is proportional to the needs of 15 the case, particularly in light of the amount of ESI already produced by both parties. 16 17 18 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 19 Plaintiff’s forthcoming ESI production” at an unspecified later date. ECF 356 at 3. The Court 20 cautions the parties that any new motions to compel relating to written discovery and ESI issues 21 must be filed by May 18, 2018. ECF 268 at 3. The Court will not entertain late motions unless 22 the parties request and obtain an order from Judge Freeman modifying the case schedule. 23 24 SO ORDERED. Dated: May 14, 2018 25 26 SUSAN VAN KEULEN United States Magistrate Judge 27 28 2

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