Bess v. State of California, et al

Filing 97

ORDER signed by Judge John A. Mendez on 1/8/09 ORDERING the Findings, Recommendations and Order 78 are ADOPTED IN FULL; pltf's 10/30/08 motion to compel discovery 66 is GRANTED. Dfts shall produce the documents requested for inspection and c opying, without further objection, within 10 calendar days from the date of this order; having received no request for reconsideration by any party, the Magistrate Judges Order filed 12/12/08 is final and Dfts Cate and Shaw shall pay plf's reasonable attorneys fees and costs in the amount of $8,175.83.(Carlos, K)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

SAM BESS, Plaintiff, v. MATTHEW CATE, et al., Defendants. ______________________________/

No. 2:07-cv-1989 JAM JFM ORDER DENYING REQUEST FOR RECONSIDERATION

Matthew Cate and David Shaw ("Defendants") filed a Request for Reconsideration of a Magistrate Judge's Order issued on November 26, 2008 ("Order") granting a Motion to Compel and awarding attorneys' fees. Docket at 78. Sam Bess ("Plaintiff") Federal Rule of Civil

opposed the Request for Reconsideration.

Procedure 72 requires a district court to modify or set aside any part of a magistrate judge's order that is "clearly erroneous or contrary to law." In this case, the Order relied on extensive case law from this district. In a few instances, the cases upon which the

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Order relied even involved the Defendants raising identical arguments to those raised in this matter. Accordingly,

Defendants have failed to demonstrate that the Order was clearly erroneous or contrary to law. Furthermore, given Plaintiff's numerous efforts to meet and confer, Defendants refusal to produce a single document or a privilege log over an eight month period, and Defendants failure to take into account established precedent, Defendants have not demonstrated that their nondisclosure was "substantially justified." See Fed.R.Civ.P. 37(a)(5)(A)(ii). Accordingly,

that portion of the Magistrate Judge's Order directing Plaintiff to file a statement of his reasonable expenses, including attorney's fees, incurred in making the Rule 37 motion was appropriate. Defendants' Request for Reconsideration is DENIED. Accordingly, IT IS HEREBY ORDERED that: 1. The findings, recommendations and order filed November 26, 2008 are adopted in full; 2. Plaintiff's October 30, 2008 motion to compel discovery (docket no. 66) is granted. Defendants shall produce the documents requested for inspection and copying, without further objection, within ten (10) calendar days from the date of this order (docket no. 96); and

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3. Having received no request for reconsideration by any party, the Magistrate-Judge's Order filed December 12, 2008 is final and Defendants Cate and Shaw shall pay plaintiff's reasonable attorneys' fees and costs in the amount of $8,175.83.

Dated: January 8, 2009

_____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE

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