Lebbon et al v. Reed et al

Filing 42

ORDER denying 41 Motion for Reconsideration ; denying 41 Motion for Protective Order. (See document for further details). Signed by Judge G Murray Snow on 2/20/13. (LAD)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Cameron Lebbon, a married man; Peoria
Police Officer’s Association Charities, a
non-profit charitable organization; Peoria
Police Officer’s Association, a non-profit
corporation,

No. CV-12-00921-PHX-GMS
ORDER

Plaintiffs,

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v.

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City of Peoria, a municipality,

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Defendant.

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Pending before the Court is Defendant City of Peoria’s Motion for

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Reconsideration or in the Alternative Motion for Protective Order. (Doc. 41.) For the

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reasons discussed below, Defendant’s Motion is denied.

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Pursuant to Local Rule 7.2(g), a motion for reconsideration will be denied “absent

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a showing of manifest error or a showing of new facts or legal authority that could not

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have been brought to [the Court’s] attention earlier with reasonably diligence.” LRCiv.

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7.2(g). Motions for reconsideration are disfavored and are not the place for parties to

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make new arguments not raised in their original briefs and arguments. See Northwest

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Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925–26 (9th Cir. 1988). Nor

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should such motions ask the Court to “rethink what the court has already thought

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through—rightly or wrongly.” See United States v. Rezzonico, 32 F.Supp.2d 1112, 1116

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(D. Ariz. 1998) (quoting Above the Belt, Inc. v. Mel Bohannon Roofing, Inc., 99 F.R.D.

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99, 101 (E.D. Va. 1983)).

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On January 31, 2013, the Court granted Plaintiffs’ Motion to Compel and ordered

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Defendant to produce the 2010 Investigation, holding that Defendant had failed to show

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that the Investigation was protected by either attorney-client or work-product privilege,

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and that in any event any privilege was waived by Defendant’s disclosure of the results of

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the Investigation in a 2011 Memo to Plaintiff Lebbon. (Doc. 39 at 3.)

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Defendant now contends that the 2010 Investigation is protected by the work

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product privilege and that the burden is on Plaintiffs to overcome that privilege. As an

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initial matter, the issue of work product privilege was briefed in the previous Motion to

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Compel. Defendant does not set forth new facts or legal authority that could not have

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been brought to the Court’s attention earlier. Nor does Defendant argue that manifest

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error occurred. As such, Defendant has no ground for bringing a Motion for

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Reconsideration.

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Moreover, Defendant’s assertion that the burden of overcoming work product

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privilege falls initially on Plaintiffs is simply wrong. Defendant claims that “when the

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information being sought is from a consulting expert who is not expected to be called as a

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trial witness, the burden shifts to the party seeking disclosure of the privileged

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document.” (Doc. 41 at 3.) Defendant is correct that the burden shifts, but it does not do

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so until the party invoking the work product privilege has established that the privilege

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applies. Garcia v. City of El Centro, 214 F.R.D. 587, 591 (S.D. Cal. 2003) (“The party

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asserting the work product privilege bears the burden of proving that the material

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withheld meets the standards established for material to be classified as work product.”).

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Defendant seems to assume that it has established for the Court that the 2010

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Investigation was the work product of a non-consulting expert. Further, Defendant does

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nothing to establish how, even if it was, it would not have been waived by its subsequent

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conduct. Even were the consultant’s status as a non-testifying expert not at issue,

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Defendant seems to believe that all it needs to do is baldly assert the work product

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privilege to shift the burden to the other party. The sole case cited by Defendant for this
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proposition states the opposite. In Pinal Creek Group v. Newmont Mining Corporation,

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this Court squarely held that “[t]he party claiming work product immunity has the burden

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of proving the applicability of the doctrine.” No. CV-91-1764-PHX-DAE, 2006 WL

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1817000 at *4 (D. Ariz. June 30, 2006).

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Defendant then argues that, notwithstanding the Court’s Order on January 31

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ordering Defendant to disclose the entire 2010 Investigation, the Court should conduct an

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in camera inspection of the Investigation to determine which portions of the Investigation

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were waived. (Doc. 41 at 4.) Again, Defendant does not cite to any new facts or law, or

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point to any manifest injustice, that would warrant this deviation from the Court’s earlier

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Order. As such, there is no ground for Defendant to bring this Motion for

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Reconsideration. Moreover, as discussed above and in the earlier Order, Defendant has

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thus far failed to demonstrate that any privilege whatsoever applies to the 2010

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Investigation. The Court sees no reason to exercise its discretion to inspect the

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Investigation in camera when Defendant has made no effort to show that the

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Investigation is potentially privileged.

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Finally, Defendant requests that the Court issue a protective order limiting the

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dissemination of the 2010 Investigation and its contents to the parties to this suit. (Id. at

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5.) Defendant asserts that it is entitled to a protective order because the Investigation

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contains statements from witnesses who may be subject to retaliation if their identities

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were released. (Id. at 6.) In addition, Defendant argues that it will suffer “embarrassment,

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annoyance and oppression” from the media if the 2010 Investigation is released to the

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public. (Id.) This is a new argument not raised in the briefing on the Motion to Compel.

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As such, this Motion for Reconsideration is not the proper vehicle for requesting the

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protective order. Northwest Acceptance, 841 F.2d at 925–26. Defendant’s Motion on this

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ground is denied. Defendant is not barred from filing a Motion for Protective Order to

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which Plaintiffs may respond without seeking permission from this Court. See LRCiv.

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7.2(g)(2).

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IT IS THEREFORE ORDERED that Defendant City of Peoria’s Motion for
Reconsideration or in the alternative Motion for Protective Order (Doc. 41) is DENIED.
Dated this 20th day of February, 2013.

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