Moore et al v. Gilead Sciences, Inc. et al

Filing 175

ORDER DENYING PLAINTIFF'S REQUEST FOR LEAVE TO FILE MOTION TO RECONSIDER (Illston, Susan) (Filed on 10/15/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DAVID MOORE,

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United States District Court
For the Northern District of California

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No. C 07-03850 SI

Plaintiff,

ORDER DENYING PLAINTIFF’S
REQUEST FOR LEAVE TO FILE
MOTION FOR RECONSIDERATION

v.
GILEAD SCIENCES, INC.,
Defendant.

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On October 10, 2012, plaintiff filed a letter with the Court requesting leave to file a motion for

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reconsideration of the Court’s prior orders (1) granting defendant’s motion for partial summary

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judgment on reinstatement and damages (Dkt. 148, filed April 10, 2012) and (2) granting in part

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defendant’s motion for sanctions (Dkt. 136, filed February 29, 2012). Defendant has filed a letter

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opposing plaintiff’s request, and plaintiff has filed a reply. The Court, having considered the parties’

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papers and arguments therein, hereby DENIES plaintiff’s request for leave to file a motion for

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reconsideration.

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To obtain leave to file a motion for reconsideration, plaintiff must show that, “at the time of the

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motion for leave, a material difference in fact or law exists from that which was presented to the Court

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before entry of the interlocutory order for which leave is sought.” Civil L.R. 7-9(b)(1). Plaintiff asserts

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that “new material facts have occurred” in that plaintiff’s previously confidential cooperation with

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government authorities in an unrelated case is no longer confidential, thereby allowing him to further

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explain the behavior – plaintiff’s destruction of evidence – that caused the Court to issue the two

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previous orders in dispute . See Dkt. 136 at 5, Dkt. 148 at 13. Whereas plaintiff previously asserted that

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he destroyed evidence because of his involvement in a qui tam action or because his destruction was

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protected activity under federal law, plaintiff now argues that his “erasure of his hard drive and deletion

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of related files” was motivated by FBI and Justice Department agents’ instructing him to “prevent the

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discovery of information by third parties.” Dk. 169 at 2. As of August 27, 2012, plaintiff states, the

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other case he was cooperating on became unsealed, thereby allowing him to reveal his cooperation with

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the government as the impetus for his destruction of evidence. Id.
The Court finds plaintiff’s explanation unpersuasive. Previously the Court rejected plaintiff’s

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nearly identical argument that he destroyed evidence because “there was a Court Order in place” and

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he had to “ensure that no documents or emails subject to that Court Order would be turned over to

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Gilead Sciences.” Dkt. 128 at 3. The Court reiterates here that “the proper procedure for privileged

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United States District Court
For the Northern District of California

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documents is to assert that privilege, not to destroy the evidence.” Dkt. 136 at 5. Assuming the veracity

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of plaintiff’s current assertions, the proper course of action then, as it was when plaintiff raised nearly

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the same issue before, would have been to identify and assert privilege, or otherwise raise the concern

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with the Court, not to destroy evidence.

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Therefore, finding no new material difference in fact or law, the Court hereby DENIES
plaintiff’s request for leave to file a motion for reconsideration.

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IT IS SO ORDERED.

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Dated: October 15, 2012
SUSAN ILLSTON
United States District Judge

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