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

Filing 388

ORDER DENYING WITHOUT PREJUDICE 373 NON-PARTY CHRIS CARAS' MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE. Signed by Judge Beth Labson Freeman on 5/23/2018. (blflc4S, COURT STAFF) (Filed on 5/23/2018)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

SAN JOSE DIVISION

6
7

NEWMARK REALTY CAPITAL, INC.,
Plaintiff,

8
v.

9
10

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

11
United States District Court
Northern District of California

Case No. 16-cv-01702-BLF
ORDER DENYING WITHOUT
PREJUDICE NON-PARTY CHRIS
CARAS’ MOTION FOR RELIEF FROM
NONDISPOSITIVE PRETRIAL ORDER
OF MAGISTRATE JUDGE
[Re: ECF 373]

12
13
14

Non-party Chris Caras filed a motion for relief from nondispositive pretrial order of

15

Magistrate Judge Susan van Keulen (“Order,” ECF 350). Mot., ECF 373. The Order requires Mr.

16

Caras to “produce all documents, including emails from any account, reflecting communications

17

between Mr. Caras and [Plaintiff Newmark Realty Capital, Inc.] or its counsel regarding

18

Defendants or the subject litigation from the period January 1, 2017-present.” Order 1–2. Mr. Caras

19

seeks to set aside the portion of the Order that requires him to produce his CBRE1 work emails on the

20

grounds that it is impossible for him to comply. Mot. 1–3. Mr. Caras submitted a declaration that

21

states the following. After the Order issued on May 9, 2018, Mr. Caras conducted a search of his

22

CBRE email account and found that most of his CBRE emails from the year 2017 have been archived.

23

Caras Decl. ¶ 2, ECF 373-1. CBRE informed Mr. Caras that he was not allowed to produce his work

24

emails because the emails are CBRE’s property. Id. CBRE did not restore the archived emails. Id.

Here, Mr. Caras testifies that after the Order issued on May 9, 2018, his employer CBRE

25
26

affirmatively stated that Mr. Caras is not allowed to produce his emails because those are CBRE’s

27
28

1

CBRE is Mr. Caras’ employer.

1

property and CBRE did not restore the archived emails. CBRE also informed Mr. Caras that

2

CBRE will produce the emails only if it is served directly with a subpoena. Caras Decl. ¶ 2.

3

These facts constitute a change of circumstances which Judge van Keulen did not have an

4

opportunity to consider when she issued the Order. Accordingly, Mr. Caras should first request

5

Judge van Keulen to determine whether Mr. Caras’ production of emails should be limited in light

6

of the change of circumstances. For these reasons, Mr. Caras’ motion for relief from

7

nondispositive pretrial order of Judge van Keulen is DENIED without prejudice.

8

IT IS SO ORDERED.

9
10

United States District Court
Northern District of California

11
12

Dated: May 23, 2018
______________________________________
BETH LABSON FREEMAN
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2