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G&E Real Estate, Inc. v. Avison Young-Washington, D.C., LLC

United States District Court, District of Columbia

October 18, 2017

G&E REAL ESTATE, INC., Plaintiff,
AVISON YOUNG-WASHINGTON, D.C., LLC, et al., Defendants.



         Pending before the Court is Defendants' Motion for Sanctions, ECF No. 168 (“Sanctions Mot.”). That motion concerns the belated production of approximately 16, 000 emails from the mailbox of Defendant Bruce McNair (the “McNair Emails”), which were stored on a computer server previously owned and operated by non-party Grubb & Ellis. Having reviewed the pleadings, [1] the relevant legal authorities, and the record for purposes of the pending motion, the Court finds that the sanctions sought by Defendants are not appropriate. Nonetheless, given the belated production of indisputably relevant materials, the Court shall reopen the discovery period in this matter, so that the parties may engage in any additional discovery and motion practice that is reasonably necessitated by the new materials. Accordingly, the Court shall DENY the Motion for Sanctions, ECF No. 168, and shall DENY WITHOUT PREJUDICE any pending motions related to the pretrial phase of this case.


         In October 2014, then Plaintiff's counsel Saul Ewing extracted and reviewed the 16, 000 McNair Emails, and produced 458 emails on October 24, 2014 which it deemed responsive to Defendants' discovery requests. Gill Decl. ¶ 7. A Revised Joint Discovery Plan filed on October 10, 2014, ECF No. 100, states the following:

Plaintiff has just obtained electronic documents which appear to consist primarily of emails and email attachments in .pst form. These are being processed for production in this case. Plaintiff expects to produce these documents by October 17, 2014. Plaintiff contends it obtained the claims in this case as part of the assets of the real estate brokerage firm Grubb & Ellis in the context of Grubb & Ellis's bankruptcy. Grubb & Ellis is no longer a going concern. Plaintiff further contends that obtaining electronic data which belonged to Grubb & Ellis presents special challenges because that data is not readily retrievable. Plaintiff is in the process of confirming that no further document production is expected, but cannot know that until approximately October 17, 2014. Only after Plaintiff represents to Defendants that it has completed its document production will Defendants be in a position to evaluate the document production and pose any challenges thereto, including the possible need for additional efforts to retrieve and produce Grubb & Ellis documents that Plaintiff contends it is having difficulty locating and/or producing.

(Emphasis added.) According to Plaintiff, the first italicized portion of this paragraph refers to the McNair Emails, of which 458 were produced, while the second italicized portion refers to other electronic data. Gill Decl. ¶¶ 10-11. Following the production of the 458 McNair Emails, Defendants did not move to compel, and the issue laid dormant until the parties began their pretrial preparations. The discovery period closed on February 10, 2015. Minute Order (Dec. 8, 2014).

         In March 2017, an associate with Plaintiff's current counsel, Nixon Peabody, sent an email to an associate with Saul Ewing asking whether Nixon Peabody had received all of the documents that had been produced in this case. Kurow Decl. ¶ 5. In response, the Nixon Peabody associate received a production log that included an entry described as “McNair Emails, ” and which was dated October 6, 2014. Id. ¶ 10. The party associated with the log entry was “McNair.” Id. According to the Nixon Peabody associate, she was advised by the Saul Ewing associate that the production log was an accurate representation of the materials produced in this litigation. Id. ¶ 11.

         On March 31, 2017, Plaintiff's counsel sent a letter to Defense counsel stating that certain documents “produced by Bruce McNair . . . were turned over in native format only and were never imaged and labeled with any sort of document identifiers[, ]” and proposed an identifier for “Bruce McNair's production totaling 16, 410 documents . . . .” Sanctions Mot., Ex. 2. On April 3, 2017, Plaintiff's counsel reiterated “that these are documents previously produced by the parties other than Plaintiff, including Bruce McNair . . . .” Id., Ex. 3. These documents were sent to Defense counsel on April 12, 2017. Kurow Decl. ¶ 16. On April 20, 2017, Defense counsel informed Plaintiff's counsel that “it would appear that the documents recently bates labeled and produced to us . . . significantly exceed the volume of documents produced in this case as a whole.” Sanctions Mot., Ex. 4. This discrepancy was explained by Plaintiff's counsel two weeks later via email:

We have determined after our conversation with you that there were approximately 16, 000 emails labeled “McNair Emails” that Saul Ewing improperly included on the Plaintiff's production log. The production log indicated that the emails had been produced by McNair. Upon further investigation, we have determined that the emails were not produced by McNair and that approximately 458 emails were included in the Grubb & Ellis October 24, 2014 production. It is unclear why Saul Ewing did not produce any other emails from this collection. In any event, we have provided you with the entire universe of emails that the client originally provided to Saul Ewing. Given that the information we were provided originally was incorrect, Plaintiff is willing to reproduce those emails with a corrected Bates-label identifying Grubb & Ellis as the source. Please advise if you would like us to relabel these documents. Subject to court approval, Plaintiff intends to use certain of these emails as indicated on the exhibit list that has been provided to you.

Id., Ex. 8; see also Ex. 9, at 8-9 (in response to Defendants' objections to the pre-trial statement, providing the same explanation for the non-production of the 16, 000 McNair Emails).

         Separately, beginning in March 2017, Plaintiff's parent company produced 32, 000 documents in a related action in the District of Columbia Superior Court (the “Superior Court Documents”), Solis Decl. ¶¶ 10-12, which Defendants contend are “in large part [from] the Grubb & Ellis e-mail server . . . [, ]” Defs.' Mem. at 11. According to Plaintiff, in “reviewing and processing the productions in the Superior-Court Litigation, it became apparent to Nixon Peabody that documents that were produced, or were going to be produced, to the defendants in that case had not been produced in this case.” Solis Decl. ¶ 13. Nixon Peabody has since provided the unproduced Superior Court Documents to Defendants in this case. Id. ¶ 14.

         Plaintiff seeks to use as trial exhibits 15 of the previously unproduced McNair Emails; 17 of the previously unproduced Superior Court Documents; as well as attachments to a previously produced email from Defendant Roehrenbeck that were not themselves produced; and a Grubb & Ellis “employee handbook.” Pl.'s Mem. at 9-10.


         Defendants pursue sanctions pursuant to Federal Rules of Civil Procedure 37(b)(2) and 37(c)(1), as well as the Court's “inherent power to protect its integrity and prevent abuses of the judicial process.” Defs.' Mem. at 15, 19 (citing Webb v. District of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998) (internal quotation marks and alteration omitted)). Under Rule 37(b)(2), Defendants seek the ultimate sanction of dismissal, while pursuant to Rule 37(c)(1), they seek the exclusion from trial ...

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