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

United States District Court, D. Nevada

August 11, 2017

BGC PARTNERS, INC., et al., Plaintiffs,
v.
AVISON YOUNG CANADA INC., et al., Defendants.

          ORDER

          GEORGE FOLEY, JR. United States Magistrate Judge.

         This matter is before the Court on Plaintiffs' Motion for Entry of a Protective Order (ECF No. 88), filed on July 6, 2017. Defendants filed their Opposition (ECF No. 96) on July 21, 2017, and Plaintiffs filed their Reply (ECF No. 98) on July 26, 2017. Plaintiff filed a Supplemental Brief (ECF No. 103) on August 9, 2017. The Court conducted a hearing in this matter on August 2, 2017.

         BACKGROUND

         Plaintiffs BGC Partners, Inc., G&E Acquisition Company, LLC and Real Estate of Nevada, LLC are the alleged successors to the rights of Grubb & Ellis Company which was a real estate brokerage company that had approximately 90 offices located in different states. Defendant Avison Young (Canada) is allegedly one of Canada's largest real estate brokerage firms. Amended Complaint (ECF No. 65), ¶ 1. Plaintiffs allege that Avison Young's chairman and chief executive officer, Mark Rose, was formerly the president of Grubb & Ellis in the United States. Plaintiffs allege that after Rose joined Avison Young, it, together with its U.S. affiliates, carried out a nationwide scheme to tortiously and illegally loot Grubb & Ellis's contract rights, related legal claims, commissions, personnel, offices, business, trade secrets and business opportunities. Id. at ¶¶ 1-2. Plaintiffs allege that in Nevada, Defendants induced a Grubb & Ellis affiliate to breach contracts in order to join Avison Young, misappropriated Grubb & Ellis's trade secrets by using improper means, and committed larceny, and induced and assisted larceny. Id. at ¶ 3. Plaintiffs further allege that Defendants' wrongful conduct was part of the nationwide scheme to unlawfully acquire the business assets of Grubb & Ellis. Id. at ¶¶ 22-55. Plaintiffs assert causes of action for tortious interference with contractual relationship, violation of the Nevada RICO statute, breach of contract, tortious breach of the covenant of good faith and fair dealing, conspiracy, theft of trade secrets, breach of fiduciary duty, conversion, and unjust enrichment. Id. at 56-140.

         Plaintiff initially filed suit against Avison Young (Canada) and Avison Young (USA), and their state or local affiliates-Avison Young-New York, Avison Young-Nevada, Avison Young-Washington, D.C., Avison Young-Chicago, Avison Young-New England, Avison Young-Atlanta, Avison Young-Southern California, Avison Young-Pittsburgh, and Avison Young-Texas-in the New York state court. Id. at ¶ 7. On December 15, 2014, the New York court dismissed Plaintiffs' claims against Avison Young's state or local affiliates, other than AvisonYoung-New York, based on lack of personal jurisdiction over those companies. See BGC Partners, Inc., v. Avison Young (Canada), et al., 5 N.Y.S.3d 327, 46 Misc.3d 1202 (N.Y.Sup.Ct. 2014). Plaintiffs thereafter filed lawsuits against Avison Young (Canada), Avison Young (USA), and their respective affiliates in the Nevada, Illinois, South Carolina, and District of Columbia courts. See Motion for Protective Order (ECF No. 88), Exhibit A, Plaintiffs' Proposed Protective Order-“Exhibit B”(list of other actions); Defendants' Opposition (ECF No. 96), Exhibits 1-7 (copies of pleadings, orders and protective orders entered in other actions).

         The parties in this case have agreed that discovery should be governed by a protective order pursuant to which they or third parties will produce “Confidential Material” or “Highly Confidential Material” subject to restrictions on the disclosure of such information to certain individuals in this litigation. The parties disagree, however, as to whether “Confidential Material” or “Highly Confidential Material” produced in this action may be shared with or used by the parties in the other actions. Plaintiffs argue that such “sharing” should be permitted and propose that the following paragraph be included in the protective order:

Except by the prior written consent of the producing party, or by order of this Court, all materials or information produced by any party in this action shall be used solely in the preparation for and conduct of this litigation (including briefs, memoranda, correspondence, and other documents relating thereto) and the cases listed in Exhibit B attached hereto, and shall not be used or distributed for any other purpose. Except by the prior written consent of a third party that has produced materials or information in this case, or by order of this Court, all materials or information produced by said third party in this action shall be used solely for the purposes of this litigation and the cases listed in Exhibit B attached hereto, and shall not be used or distributed for any other purpose.

Motion for Protective Order (ECF No. 88), Exhibit A, ¶ 2.

         “Exhibit B” to Plaintiffs' proposed protective order lists the following cases: (1) BGC Partners, Inc., v. Avison Young (Canada), Inc. et al, No. 15-cv-426 (D.D.C); (2) BGC Partners, Inc., v. Avison Young (Canada), Inc. et al, Index No. 652669 2012 E (N.Y.Sup.Ct.); (3) BGC Partners, Inc., v. Avison Young (Canada), Inc. et al, No. 2015-CP-10-2068 (S.C.L.); (4) BGC Partners, Inc., v. Avison Young (Canada), Inc. et al, No. 2015 L 2186 (Ill.); and (5) BGC Partners, Inc., v. Avison Young (Canada), Inc. et al, Civil Action No. 15-0001028 (D.C. Super. Ct.). Id.

         Defendants oppose such a “sharing” provision, and instead propose the following Paragraph 2:

Except by the prior written consent of the producing party, or by order of this Court, all materials or information produced by any party in this action shall be used solely in the preparation for and conduct of this litigation (including briefs, memoranda, correspondence, and other documents relating thereto), and shall not be used or distributed for any other purpose. Except by the prior written consent of a third party that has produced materials or information in this case, or by order of this Court, all materials or information produced by said third party in this action shall be used solely for the purposes of this litigation, and shall not be used or distributed for any other purpose.

Motion for Protective Order (ECF No. 88), Exhibit B, ¶ 2.

         In addition, Defendants propose that the following sentence be added to the paragraphs of their proposed protective order which identify the persons entitled to receive or view confidential information:

For the avoidance of doubt, consistent with Paragraph 2 above, documents produced in this litigation, including those designated as Confidential Material [or Highly Confidential Material], shall not be admissible in the cases listed in Exhibit B, nor shall they be used for any other purpose with ...

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