BGC Partners, Inc. v. Avison Young (Canada), Inc. ( 2020 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 NEWMARK GROUP, INC., G&E Case No. 2:15-cv-00531-RFB-EJY ACQUISITION COMPANY, LLC, and BGC 5 REAL ESTATE OF NEVADA, LLC, 6 Plaintiffs, 7 v. ORDER 8 AVISON YOUNG (CANADA) INC.; AVISON YOUNG (USA) INC.; AVISON 9 YOUNG-NEVADA, LLC, MARK ROSE, THE NEVADA COMMERCIAL GROUP, 10 JOHN PINJUV, and JOSEPH KUPIEC; DOES 1 through 5; and ROE BUSINESS ENTITIES 11 6 through 10, 12 Defendants. 13 14 Before the Court is Plaintiffs’ Motion for Leave to Redact and Seal Exhibits to, and Sections 15 of, Plaintiffs’ Motion to Compel the AY Defendants and the NGC Defendants to (I) Search 16 Additional Sources of ESI, (II) Produce “AY University” Documents, (III) Produce Documents 17 Improperly Included in the AY Defendants’ Clawback Request, (IV) Produce Documents 18 Improperly Withheld as Privileged, and (V) Provide an Adequate Forensic Report. ECF No. 19 399. No response to this Motion was filed by Defendants. 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) (holding that those who seek to 23 maintain the secrecy of documents attached to dispositive motions must meet the high threshold of 24 showing that “compelling reasons” support secrecy). However, where a party 25 seeks to seal documents attached to a non-dispositive motion, the “public policies that support the 26 right of access to dispositive motions … do not apply with equal force … .” Kamakana, 417 F.3d 27 at 1179 (citation omitted). 1 The mere fact that the production of records may lead to a party’s embarrassment, 2 incrimination, or exposure to further litigation will not alone compel the court to seal its 3 records. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1136 (9th Cir. 2003). Compelling 4 reasons require a demonstration of something more, such as when court files have become a vehicle 5 for improper purposes, including use of records to gratify private spite, promote public scandal, 6 disseminate libelous statements, or circulate trade secrets. Nixon v. Warner Commc’ns, 435 U.S. 7 589, 598 (1978). 8 The Court considered the Motion and the documents sought to be sealed. The Court also 9 considered ECF No. 409, Plaintiffs’ Supplemental Memorandum. The Court finds Exhibits 1, 3, 4 10 page AYNV-00032998, 6, 7, 10-14, 15, 20, 22, 25-28, 36, 42, 43, 50, 51, 53, 58, and 59 are properly 11 sealed. 12 The Court further finds Exhibits 2, 4 (except as stated above), 5, 8, 9, 16-19, 27, 33, 37, 38, 13 41-49, 52, 54, 60, and 63 contain no information that warrants sealing. 14 Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Motion for Leave to Redact and 15 Seal Exhibits to, and Sections of, Plaintiffs Motion to Compel the AY Defendants and the NGC 16 Defendants to (I) Search Additional Sources of ESI, (II) Produce “AY University” Documents, (III) 17 Produce Documents Improperly Included in the AY Defendants’ Clawback Request, (IV) Produce 18 Documents Improperly Withheld as Privileged, and (V) Provide an Adequate Forensic Report (ECF 19 No. 399) is GRANTED in part and DENIED in part. 20 IT IS FURTHER ORDERED that Exhibits 1, 3, 4 page AYNV-00032998, 6, 7, 10-14, 15, 21 20, 22, 25-28, 36, 41, 42, 43, 50, 51, 53, 58, and 59 shall remain sealed. Pages in Plaintiffs’ Motion 22 to Compel (ECF No. 397) redacted based on reference to these Exhibits or the contents thereof shall 23 remain redacted. 24 IT IS FURTHER ORDERED that because the Court finds Exhibits 2, 4 (except as stated 25 above), 5, 8, 9, 16-19, 27, 33, 37, 38, 41, 44-49, 52, 54, 60, and 63 contain no information that 26 warrants sealing, the Court shall temporarily maintain these documents as sealed providing the 27 parties through and including December 21, 2020 to submit additional information and argument 1 If nothing additional is submitted, these Exhibits shall be unsealed on December 22, 2020, and 2 Plaintiffs shall resubmit its Motion to Compel (ECF No. 397) removing redactions referencing these 3 Exhibits and the contents thereof. 4 DATED: December 11, 2020 5 6 ELAYNA J. YOUCHAH 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27