Patriot Rail Corp. v. Sierra Railroad Company
Filing
777
ORDER signed by Magistrate Judge Allison Claire on 3/28/2016 DENYING Pacific's 765 Motion for Reconsideration. (Zignago, K.)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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PATRIOT RAIL CORP.,
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No. 2:09-cv-0009 TLN AC
Plaintiff,
v.
ORDER
SIERRA RAILROAD COMPANY,
Defendant.
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AND RELATED COUNTERCLAIMS
Counter-defendant Pacific Rail LLC (a/k/a Patriot Rail LLC) (“Pacific”), seeks
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reconsideration by the undersigned of the “privilege log” requirement of ECF No. 730, the
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undersigned’s February 9, 2016 discovery order. ECF No. 765. The court’s order stated that if
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Pacific asserted privilege with request to certain documents, it “is free to assert that privilege,
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accompanied by a privilege log that complies with Fed. R. Civ. P. 26(b)(5)(A).” ECF No. 730
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at 14. Pacific argues that this requirement is unduly burdensome.
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I. LEGAL STANDARDS
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The court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 F.3d
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1185, 1198 (9th Cir. 1994). However, a motion for reconsideration “should not be used to ask the
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court to rethink what the court had already thought through – rightly or wrongly.” United States
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v. Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Ariz. 1998) (internal quotation marks omitted). “A
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party seeking reconsideration must show more than a disagreement with the Court's decision, and
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recapitulation of the cases and arguments considered by the court before rendering its original
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decision fails to carry the moving party's burden.” United States v. Westlands Water Dist., 134 F.
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Supp. 2d 1111, 1131 (E.D. Cal. 2001) (Wanger, J.) (internal quotation marks omitted). When
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filing a motion for reconsideration, E.D. Cal. R. 230(j) requires a party to show the “new or
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different facts or circumstances claimed to exist which did not exist or were not shown upon such
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prior motion, or what other grounds exist for the motion.” The moving party must also show
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“why the [new] facts or circumstances were not shown at the time of the prior motion.” Id.
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II. ANALYSIS
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Pacific seeks reconsideration on grounds that producing a privilege log would be unduly
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burdensome.1 ECF No. 765 at 2 (the privilege log requirement “undoubtedly is more burdensome
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than ever had been anticipated or imagined before”). However, the court’s prior order expressly
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overruled Pacific’s assertion that the requirement to produce a privilege log is “unduly
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burdensome.” ECF No. 730 at 15 ¶ 3. Thus, Pacific is improperly asking the court to “rethink
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what it has already thought through,” and its motion will accordingly be denied.
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The court notes, however, that Pacific’s argument appears to be based upon its
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misunderstanding of what the court ordered. Specifically, Pacific argues that “requiring Pacific to
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log every single privileged communication relating to this litigation itself is insurmountable and
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certainly unintended.” ECF No. 765 at 9 (emphasis added). That is not what the court ordered
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(although a document-by-document privilege log would satisfy the court’s order).
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Rather, the court ordered the production of a privilege log “that complies with Fed. R.
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Civ. P. 26(b)(5)(A).” ECF No. 730 at 14. Rule 26(b)(5)(A) requires only that Pacific “describe
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the nature of the documents . . . and do so in a manner that . . . will enable other parties to assess
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the claim.” Rule 26(b)(5)(A) (emphasis added). Neither this Rule, nor the undersigned’s order,
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requires the production of a document-by-document privilege log. See, e.g., Franco-Gonzalez v.
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Holder, 2013 WL 8116823 at *6, 2013 U.S. Dist. LEXIS 186499 at *23 (C.D. Cal. May 3, 2013)
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Pacific also seems to base its motion on Smith v. Mass., 543 U.S. 462, 475 (2005), a Double
Jeopardy case. Pacific does not explain the relevance of that case to this motion.
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(“[w]hile boilerplate objections are insufficient to assert a privilege, Rule 26(b)(5) does not
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require a document-by-document privilege log”) (citation omitted).
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When Rule 26(b)(5) was added to the Rules, the Advisory Committee commented as
follows:
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The rule does not attempt to define for each case what information
must be provided when a party asserts a claim of privilege or work
product protection. Details concerning time, persons, general
subject matter, etc., may be appropriate if only a few items are
withheld, but may be unduly burdensome when voluminous
documents are claimed to be privileged or protected, particularly if
the items can be described by categories.
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Fed. R. Civ. P. 26 advisory committee's notes to 1993 Amendments (emphasis added); see also,
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Durkin v. Shields (In re Imperial Corp. of Am.), 174 F.R.D. 475, 479 (S. D. Cal. 1997) (where
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“hundreds of thousands, if not millions, of documents” of potentially privileged documents were
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involved, “Fed. R. Civ. Pro. 26(b)(5) does not require the production of a document-by-document
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privilege log. In fact, when the legislature enacted Fed. R. Civ. Pro. 26(b)(5), it expressly
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recognized that there are circumstances in which a document-by-document privilege log would be
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unduly burdensome and inappropriate”).
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Thus, if the production of a document-by-document privilege log would be “unduly
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burdensome,” Pacific can comply with the requirements of Rule 25(b)(5)(A) by crafting a
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privilege log in some other format. The undersigned will not set forth for Pacific exactly what its
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privilege log must look like. That is something for Pacific to work out, so long as the privilege
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log – whatever its format – permits this court, and interested parties, to assess its claim of
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privilege.
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III. CONCLUSION
For the reasons set forth above, Pacific’s motion for reconsideration (ECF No. 765) is
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DENIED.
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DATED: March 28, 2016
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