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

Filing 585

SPECIAL MASTERS FINAL REPORT - Documents 7-12 are privileged communications, and Defendants objections to their production based upon privilege are sustained. As required by the Courts order, objections to this report must be served and filed with the Court within seven days (of date this order is entered). Absent an objection to the Court, within seven days, Defendants shall produce the 74 documents previously identified as Responsive, except Privilege Log documents 7-12. Signed by Hon. Carl W. Hoffman, Jr. (Ret.) on 6/17/2022. (Copies have been distributed pursuant to the NEF - DRS)

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Hon. Carl W. Hoffman Jr. (Ret.)
JAMS
7160 Rafael Rivera Way
Suite 400
Las Vegas, NV 89113

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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

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vs.

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AVISON YOUNG (CANADA) INC.;
AVISION YOUNG-NEVADA, LLC, MARK
ROUSE, THE NEVADA COMMERCIAL
GROUP, JOHN PINJUV, JOSEPH KUPIEC,
DOES 1 – 5, ROE BUSINESS ENTITIES 6 –
10,

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SPECIAL MASTER’S FINAL REPORT

Plaintiffs,

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

Defendants

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On April 1, 2022, the Court appointed the undersigned as Special Master to
determine the responsiveness of approximately 3,700 electronically filed documents found in
Kim Krugman’s Avison Young custodial files that have not been produced by Defendants, and
to resolve claims of privilege or work-product asserted by Defendants regarding those

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documents. (ECF No. 578). Pleadings were provided as required by the Order, and on April 14,

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2022, the electronic files were provided by Defendants. After conducting a limited review to

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develop familiarity with the files, a conference call was convened with the parties on April 28,
2022. Details of the pleadings were reviewed, and key Nevada Avison Young personnel and
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business entities were identified to aid the review. The commencement date for the review was

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established as April 14, 2022, when the files were received, and the Initial Report was provided

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to the parties within the 30 day timeline set by the Court, on May 9, 2022.

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The Initial Report indicated that, applying the criteria established by the Court to

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determine whether documents are responsive, and after review of each of the 3,946 files

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produced by Defendants, 91 files were deemed to be Responsive. The electronic zipped file

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containing Responsive documents was provided to Defendants (only) for review on about May 9,

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2022.

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Defendants reviewed the Responsive documents report and timely provided

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objections to 48 of the 91 documents deemed Responsive. Upon reconsideration, on June 14,

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2022, Defendant’s objections were sustained as to 17 documents, leaving a total of 74 documents

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to be provided to Plaintiffs, subject to assertions of privilege. 1

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Meanwhile, on May 24, 2022, as directed by the Court, Defendants timely

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produced a privilege log to Plaintiffs which designated a total of 14 documents as privileged.

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Plaintiffs timely submitted written responses to the privilege designations on June 3, 2022, and

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Defendant timely replied on June 8, 2022. Of the 14 documents identified by Defendants as

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privileged, numbers 1-6 and 13-14 were subsequently deemed non-responsive upon

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On June 15, 2022, Defendants identified an administrative error which resulted
in the removal of one document, and addition of one document to the Responsive list. On June
16, 2022, Defendant identified typographical errors in some control numbers, but these errors did
not impact the Special Master’s ability to access, identify, or reconsider the challenged
documents.
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reconsideration2 on June 14, 2022, and therefore the issue of whether those documents are

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privileged is moot.

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Defendants argue that documents 7-12 are privileged. A client has a privilege to

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refuse to disclose, and to prevent any other person from disclosing, confidential communications

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between the client and his lawyer made for the purpose of facilitating the rendition of

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professional legal services to the client. See Nev. Rev. Stat. § 49.095.

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Documents 7-12 are Responsive because they pertain to operations or personnel
in the State of Nevada. The privilege log adequately identifies the documents. Contrary to

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Plaintiff’s arguments, Krugman did not send, receive, or receive copies of the emails using her

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Grubb & Ellis email address. At the time of the emails, Ms. Krugman had been Avison

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Young’s legal counsel for about a year. Documents 7-9 are duplicates of 10-12, resulting in

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only three documents that require substantive review.

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Documents 7 and 10 are identical email

exchanges between Ms. Krugman from her Avison Young email address, in her capacity as legal

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counsel, to Avison Young employees discussing the broker licensure process. Documents 8 and

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9, identical to documents 11 and 12, are exemplar documents regarding licensure which were

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attached to and referred to in documents 7 and 10, and were provided as part of Krugman’s legal

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advice.

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Most of these documents which were originally deemed responsive, but on
reconsideration found non-responsive, were a string of (duplicative) emails among Avison
Young employees and Krugman which discussed the transition of a non-Nevada broker from
Grubb & Ellis to Avison Young. Even if responsive, the communications were clearly
privileged because they sought Krugman’s legal advice on making the transition, and did not
involve G&E documents or information, or advance AY’s interests to the detriment of G&E.
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