Herron v. Best Buy Co. Inc. et al

Filing 120

ORDER signed by Judge Garland E. Burrell, Jr. on 07/02/15 ORDERING that the 112 Motion for Reconsideration is DENIED. (Benson, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHAD HERRON, individually,
and on behalf of himself and
all others similarly
situated,

ORDER DENYING DEFENDANT’S MOTION
FOR RECONSIDERATION

Plaintiffs,

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v.

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No. 2:12-cv-02103-GEB-CKD

BEST BUY STORES, L.P., a
Virginia limited partnership,

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Defendant.

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Defendant Best Buy Stores L.P. requests reconsideration

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of an Order issued by the Magistrate Judge on May 4, 2015 (the

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“May

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Defendant from deposing Plaintiff’s counsel Richard Lambert and

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Gene Stonebarger.1 (Def.’s Req. Reconsid. 1:3-11, ECF No. 112.)

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Defendant noticed the depositions of Lambert and Stonebarger to

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support its statute of limitations defense, and Plaintiff moved

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for

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4

a

Order”),

protective

which

granted

order

a

arguing

protective

the

order

information

preventing

sought

is

Plaintiff objects to Defendant’s reply brief and “requests that the
Court formally strike or disregard” the reply, arguing that “Local Rule 303
[under which Defendant’s motion is brought] does not permit or even
contemplate the filing of a reply brief.” (Obj. to Def.’s Submission Reply Br.
1:3-6, ECF No. 116.) However, Plaintiff has not shown that Local Rule 303
negates the portion of Local Rule 230(d) that authorizes a reply brief to be
filed. Therefore, the objection is overruled.

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protected

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Magistrate Judge granted Plaintiff’s motion in the May 4 Order

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holding in part:

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the

attorney-work

product

doctrine.

The

[A]ny deposition questions [of Lambert and
Stonebarger] will inevitably tread on the
attorneys’
mental
impressions
and
investigation of the factual matters leading
up to the filing of the original and amended
complaints . . . . Inquiry into the facts
underlying [P]laintiff’s counsel’s decision
to name Best Buy Co. Inc. as the defendant
will breach protected work product. The
attorneys that are the subject of the pending
motion have submitted in this case affidavits
on the statute of limitations issue. Further
inquiry
by
deposition
of
[P]laintiff’s
attorneys is not warranted. Accordingly, IT
IS HEREBY ORDERED that [P]laintiff’s motion
for a protective order (ECF No. 97) is
granted.

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under

(Order, 3:1-3; 3:13-18, ECF No. 110.)

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Defendant argues the May 4 Order incorrectly found that

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the information it seeks would invade attorney work product since

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it “seeks to depose counsel about knowledge they acquired before

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and irrespective of their representation of Plaintiff in this

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action . . . . [and their] failure to name Best Buy Stores, L.P.

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as

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limitations.” (Req. Recons. 8:17-9:2, ECF No. 112.) Defendant

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also argues that even if the proposed depositions would tread on

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work product, Plaintiff’s counsel waved any privilege by filing

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declarations in support of Plaintiff’s opposition to Defendant’s

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motion to dismiss the Second Amended Complaint. However, this

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waiver argument is not considered since Defendant has not shown

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it presented the argument to the Magistrate Judge and “[m]otions

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for reconsideration are . . . not the place for parties to make

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new arguments not raised in their original briefs.” Hendon v.

a

defendant

before

the

expiration

2

of

the

statute

of

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Baroya, No. 1:05-cv-01247-AWI-GSA-PC, 2012 WL 995757, at *1 (E.D.

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Cal. Mar. 23, 2012) (citing Zimmerman v. City of Oakland, 255

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F.3d 734, 740 (9th Cir. 2001); N.W. Acceptance Corp. v. Lynwood

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Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988)).

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Local

Rule

Judge

shall

303(f)
in

“[t]he

standard

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Judge’s ruling] is the ‘clearly erroneous or contrary to law’

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standard set forth in 28 U.S.C. § 636(b)(1)(A).” “A [M]agistrate

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[J]udge’s

are

‘clearly

of

a

the

assigned

findings

[reconsideration

that

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factual

use

states

Magistrate

erroneous’

when

the

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district court is left with the definite and firm conviction that

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a mistake has been committed.” Mackey v. Frazier Park Pub. Util.

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Dist., No. 1:12-CV-00116-LJO-JLT, 2012 WL 5304758, at *2 (E.D.

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Cal.

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Teamsters, 124 F.3d 999, 1014 (9th Cir. 1997). “An order ‘is

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contrary to law when it fails to apply or misapplies relevant

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statutes, case law, or rules of procedure.’” Id. (quoting Knutson

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v. Blue Cross & Blue Shield of Minn., 254 F.R.D. 553, 556 (D.

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Minn. 2008)).

Oct.

25,

2012)

(quoting

Sec.

Farms

v.

Int’l

Bhd.

of

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Defendant has not shown the May 4 Order was clearly

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erroneous or contrary to law given the testimony Defendant seeks

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to

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DENIED.

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Dated:

elicit.

Therefore,

Defendant’s

July 2, 2015

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reconsideration

request

is