BGC Partners, Inc. et al v. Avison Young (Canada), Inc. et al

Filing 368

ORDER. IT IS ORDERED that 362 the request in Plaintiffs' Response to 4/30/2020 Order Regarding Exhibit 9 To Plaintiffs' 298 Motion for Protective Order, is GRANTED. IT IS FURTHER ORDERED that the original Exhibit 9, submitted under se al in ECF No. 300 , shall be struck from the record. IT IS FURTHER ORDERED that Plaintiffs may file the proposed new Exhibit 9 in support of ECF No. 298 , with the proposed redaction, in the public record. Signed by Magistrate Judge Elayna J. Youchah on 5/12/2020. (Copies have been distributed pursuant to the NEF - JQC)

Case 2:15-cv-00531-RFB-EJY Document 368 Filed 05/12/20 Page 1 of 2

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

***

4
5

NEWMARK GROUP, INC., G&E
ACQUISITION COMPANY, LLC and BGC
REAL ESTATE OF NEVADA, LLC

6
7
8
9
10
11
12

Case No. 2:15-cv-00531-RFB-EJY

Plaintiff,

ORDER

v.
AVISON YOUNG (CANADA) INC.;
AVISON YOUNG (USA) INC.; AVISON
YOUNG-NEVADA, LLC, MARK ROSE,
THE NEVADA COMMERCIAL GROUP,
JOHN PINJUV, and JOSEPH KUPIEC; DOES
1 through 5; and ROE BUSINESS ENTITIES
6 through 10,
Defendants.

13
14

Before the Court is Plaintiffs’ Response to April 30, 2020 Order Regarding Exhibit 9 To

15

Plaintiffs’ Motion for Protective Order (ECF No. 298), docketed as ECF No. 362. Plaintiffs seek to

16

withdraw Exhibit 9 originally submitted under seal and in support of ECF No. 298 and replace the

17

exhibit with a version containing one of five invoices previously submitted, with a single redaction

18

of an entry made on October 26, 2012 by Brian Harvey. Plaintiffs assert that the single entry they

19

seek to redact contains attorney work product that is properly maintained under seal.

20

As the party seeking to seal a judicial record, Plaintiffs must meet their burden of overcoming

21

the strong presumption in favor of access and public policies favoring disclosure. Kamakana v. City

22

and Cnty. of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006). Apropos of the instant Motion, the

23

court, in U.S. EEOC v. Pioneer Hotel, Inc., Case No. 2:11-cv-1588-LRH-GWF, 2014 WL 4987418,

24

at *4 (D. Nev. Oct. 6, 2014), distinguished between two types of work product: “Opinion work

25

product includes counsel’s mental impressions, conclusions, opinions or legal theories. Ordinary

26

work product is not discoverable unless the party seeking discovery has a substantial need for

27

materials and the party cannot obtain the substantial equivalent by other means. In contrast, opinion

28

work product enjoys almost absolute immunity and can be discovered only in very rare and
1

Case 2:15-cv-00531-RFB-EJY Document 368 Filed 05/12/20 Page 2 of 2

1

extraordinary circumstances, such as when the material demonstrates that an attorney has engaged

2

in illegal conduct or fraud. Id. (quoting Baker v. General Motors Corp., 209 F.3d 1051, 1054 (8th

3

Cir.2000)). Here, Plaintiffs do not address the type of work product at issue, but the Court accepts

4

that the single entry, broadly interpreted, qualifies as ordinary work product and the redaction of that

5

entry will have no impact on the parties’ ability to review and consider the evidence.

6

Accordingly, IT IS HEREBY ORDERED that the request in Plaintiffs’ Response to April

7

30, 2020 Order Regarding Exhibit 9 To Plaintiffs’ Motion for Protective Order (ECF No. 298),

8

docketed as ECF No. 362, is GRANTED.

9
10
11
12
13

IT IS FURTHER ORDERED that the original Exhibit 9, submitted under seal in ECF No.
300, shall be struck from the record.
IT IS FURTHER ORDERED that Plaintiffs may file the proposed new Exhibit 9 in support
of ECF No. 298, with the proposed redaction, in the public record.
DATED: May 12, 2020

14
15
16

ELAYNA J. YOUCHAH
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
2