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.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

PATRIOT RAIL CORP.,

12
13
14
15

No. 2:09-cv-0009 TLN AC

Plaintiff,
v.

ORDER

SIERRA RAILROAD COMPANY,
Defendant.

16
17
18

AND RELATED COUNTERCLAIMS
Counter-defendant Pacific Rail LLC (a/k/a Patriot Rail LLC) (“Pacific”), seeks

19

reconsideration by the undersigned of the “privilege log” requirement of ECF No. 730, the

20

undersigned’s February 9, 2016 discovery order. ECF No. 765. The court’s order stated that if

21

Pacific asserted privilege with request to certain documents, it “is free to assert that privilege,

22

accompanied by a privilege log that complies with Fed. R. Civ. P. 26(b)(5)(A).” ECF No. 730

23

at 14. Pacific argues that this requirement is unduly burdensome.

24

I. LEGAL STANDARDS

25

The court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 F.3d

26

1185, 1198 (9th Cir. 1994). However, a motion for reconsideration “should not be used to ask the

27

court to rethink what the court had already thought through – rightly or wrongly.” United States

28

v. Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Ariz. 1998) (internal quotation marks omitted). “A
1

1

party seeking reconsideration must show more than a disagreement with the Court's decision, and

2

recapitulation of the cases and arguments considered by the court before rendering its original

3

decision fails to carry the moving party's burden.” United States v. Westlands Water Dist., 134 F.

4

Supp. 2d 1111, 1131 (E.D. Cal. 2001) (Wanger, J.) (internal quotation marks omitted). When

5

filing a motion for reconsideration, E.D. Cal. R. 230(j) requires a party to show the “new or

6

different facts or circumstances claimed to exist which did not exist or were not shown upon such

7

prior motion, or what other grounds exist for the motion.” The moving party must also show

8

“why the [new] facts or circumstances were not shown at the time of the prior motion.” Id.

9

II. ANALYSIS

10

Pacific seeks reconsideration on grounds that producing a privilege log would be unduly

11

burdensome.1 ECF No. 765 at 2 (the privilege log requirement “undoubtedly is more burdensome

12

than ever had been anticipated or imagined before”). However, the court’s prior order expressly

13

overruled Pacific’s assertion that the requirement to produce a privilege log is “unduly

14

burdensome.” ECF No. 730 at 15 ¶ 3. Thus, Pacific is improperly asking the court to “rethink

15

what it has already thought through,” and its motion will accordingly be denied.

16

The court notes, however, that Pacific’s argument appears to be based upon its

17

misunderstanding of what the court ordered. Specifically, Pacific argues that “requiring Pacific to

18

log every single privileged communication relating to this litigation itself is insurmountable and

19

certainly unintended.” ECF No. 765 at 9 (emphasis added). That is not what the court ordered

20

(although a document-by-document privilege log would satisfy the court’s order).

21

Rather, the court ordered the production of a privilege log “that complies with Fed. R.

22

Civ. P. 26(b)(5)(A).” ECF No. 730 at 14. Rule 26(b)(5)(A) requires only that Pacific “describe

23

the nature of the documents . . . and do so in a manner that . . . will enable other parties to assess

24

the claim.” Rule 26(b)(5)(A) (emphasis added). Neither this Rule, nor the undersigned’s order,

25

requires the production of a document-by-document privilege log. See, e.g., Franco-Gonzalez v.

26

Holder, 2013 WL 8116823 at *6, 2013 U.S. Dist. LEXIS 186499 at *23 (C.D. Cal. May 3, 2013)

27
28

1

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.
2

1

(“[w]hile boilerplate objections are insufficient to assert a privilege, Rule 26(b)(5) does not

2

require a document-by-document privilege log”) (citation omitted).

3
4

When Rule 26(b)(5) was added to the Rules, the Advisory Committee commented as
follows:

5

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.

6
7
8
9

Fed. R. Civ. P. 26 advisory committee's notes to 1993 Amendments (emphasis added); see also,

10

Durkin v. Shields (In re Imperial Corp. of Am.), 174 F.R.D. 475, 479 (S. D. Cal. 1997) (where

11

“hundreds of thousands, if not millions, of documents” of potentially privileged documents were

12

involved, “Fed. R. Civ. Pro. 26(b)(5) does not require the production of a document-by-document

13

privilege log. In fact, when the legislature enacted Fed. R. Civ. Pro. 26(b)(5), it expressly

14

recognized that there are circumstances in which a document-by-document privilege log would be

15

unduly burdensome and inappropriate”).

16

Thus, if the production of a document-by-document privilege log would be “unduly

17

burdensome,” Pacific can comply with the requirements of Rule 25(b)(5)(A) by crafting a

18

privilege log in some other format. The undersigned will not set forth for Pacific exactly what its

19

privilege log must look like. That is something for Pacific to work out, so long as the privilege

20

log – whatever its format – permits this court, and interested parties, to assess its claim of

21

privilege.

22
23

III. CONCLUSION
For the reasons set forth above, Pacific’s motion for reconsideration (ECF No. 765) is

24

DENIED.

25

DATED: March 28, 2016

26
27
28
3