Walker v. City of Pocatello et al

Filing 133

ORDER denying 128 Motion for Reconsideration re 109 Order on Motion in Limine. Signed by Judge B Lynn Winmill. (slm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JOHN WALKER,
Case No. 4:15-cv-00498-BLW
Plaintiff,

MEMORANDUM DECISION
AND ORDER

v.
CITY OF POCATELLO, a political
subdivision of the State of Idaho;
SCOTT MARCHAND, in his
individual and official capacity;
BRIAN BLAD, in his individual and
official capacity; and ROGER SCHEI,
in his individual and official capacity,
Defendants.

INTRODUCTION
Before the Court is Defendant City of Pocatello’s Motion to Reconsider.
Dkt. 128. The City asks the Court to reconsider its decision granting Plaintiff John
Walker’s motion to exclude the testimony of Kirk Bybee. Dkt. 109. For the reasons
discussed below, the Court will deny the motion.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND1
In July 2020, this Court issued an order granting Plaintiff’s motion to
exclude testimony of Kirk Bybee. Dkt. 109. The City had intended to call Bybee,
the City’s attorney, to testify about the investigation into Walker’s FMLA leave in
2015. Id. at 4. Bybee was expected to testify about his role in suggesting
surveillance of Walker, his recommendation that the city take no actional against
Walker, and the City’s duty to investigate allegations of fraudulent FMLA leave.
Id. The City also expected other witnesses to testify that Bybee authorized the
investigation of Walker’s FMLA leave. Id.
The Court found that Walker was prejudiced by the City’s assertion of
attorney-client privilege and failure to disclose Bybee as someone who might have
knowledge of Walker’s FMLA claims. Id. at 6-7. Consequently, the Court
excluded Bybee’s testimony. Id. The Court issued that order in July 2020, a week
before trial was set to begin. Since then, the trial has been postponed repeatedly.
Trial is currently set to begin January 10, 2022. Dkt. 131.

1

A fuller recitation of the facts is set forth in the Court’s previous Memorandum Decision and
Order, entered July 13, 2020 (Dkt. 109). The Court will not repeat that background here.

MEMORANDUM DECISION AND ORDER - 2

LEGAL STANDARD
Federal Rule of Civil Procedure 26(a)(1) requires parties to disclose “each
individual likely to have discoverable information—along with the subjects of that
information—that the disclosing party may use to support its claims or defenses.”
Pursuant to Rule 37(c)(1), if a party fails to identify a witness as required by Rule
26(a), the party is not allowed to use that witness at trial unless the failure was
substantially justified or is harmless. Fed. R. Civ. P. 37(c)(1). “Rule 37(c)(1) is a
‘self-executing,’ ‘automatic’ sanction designed to provide a strong inducement for
disclosure.” Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 827
(9th Cir. 2011) (internal citation omitted). The burden of preventing the sanction,
and showing the failure was substantially justified or is harmless is on the party
facing the sanction. Id.
Motions for reconsideration are requests for an “extraordinary remedy, to be
used sparingly in the interests of finality and conservation of judicial resources.”
Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). The high bar that movants
must overcome to prevail on a motion for reconsideration reflects the courts’
“concerns for preserving dwindling resources and promoting judicial efficiency.”
Costello v. United States Gov't, 765 F. Supp. 1003, 1009 (C.D. Cal. 1991). As a
result, the moving party must demonstrate that reconsideration is warranted based

MEMORANDUM DECISION AND ORDER - 3

on one of four limited grounds: (1) to correct manifest errors of law or fact; (2) to
consider newly discovered or previously unavailable evidence; (3) to prevent
manifest injustice; or (4) to consider an intervening change in the law. See Turner
v. Burlington North. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003).
A motion for reconsideration is not intended to provide litigants with a
“second bite at the apple.” Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001).
Thus, the “motion may not be used to raise arguments or present evidence for the
first time [that] could reasonably have been raised earlier in the litigation,” Kona
Enterprises, Inc. v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 2000), nor is it an
opportunity to reargue the moving parties’ positions, see Wood v. Ryan, 759 F.3d
1117, 1121 (9th Cir. 2014) (finding no abuse of discretion where the district court
denied a motion to reconsider the judgment based on the same arguments made in
the original motion).
ANALYSIS
The City argues that Walker can no longer show he would be prejudiced if
Bybee is allowed to testify at trial. Dkt. 128 at 3-4. The City points out that over a
year has passed since the Court first determined that Bybee could not testify, and
trial is still several months away. Id. The upshot, according to the City, is that their
prior assertion of privilege is now harmless, because Walker has had—and still

MEMORANDUM DECISION AND ORDER - 4

has—sufficient time and opportunity to depose Bybee. Id. Plus, the City says it
will be prejudiced if Bybee is prevented from testifying at trial. Id.
The Court is not persuaded. As the Court previously noted, the City
“repeatedly asserted attorney-client privilege to prevent Walker from learning of
Bybee’s involvement in the City’s decision-making process surrounding his FMLA
leave.” Dkt. 109 at 6. The City contends that that claim of privilege is now
harmless because multiple disclosures identified Bybee as a relevant witness. Dkt.
128 at 5. The disclosures that the City points to, however, are insufficient under the
Federal Rules of Civil Procedure.
First, as the Court already determined, the City cannot rely on the August
2016 initial disclosures because they were made before Walker’s second amended
complaint and the FMLA claims that are now at issue. Dkt. 109 at 6. Second, the
City claims that Mr. Bybee was listed in supplemental disclosures in June 2017.
Dkt. 128 at 4. But Walker denies receiving this documentation and points to
inconsistencies that indicate the materials were not delivered. Dkt. 129 at 5-7.
Tellingly, the City did not take the opportunity to rebut Walker’s assertion in its
reply. Dkt. 130. Finally, the City points out that it listed Bybee as a witness before
trial in 2020. That listing, however, came after the close of discovery and resulted
in the motion the Court is now reconsidering. These disclosures are inadequate.

MEMORANDUM DECISION AND ORDER - 5

The City also oversimplifies the prejudice that its failure to disclose caused
to Walker. Relying on one line from the Court’s order—the reasoning that Walker
was prejudiced because he “has not had the opportunity to depose Bybee” or seek
other depositions related to “discussions that were claimed to be privileged”—the
City asserts that the present opportunity to depose Bybee cures the prejudice. Dkt.
128 at 3-4.
In fact, deposing Bybee now—four years after discovery closed—is not a
one-and-done solution but the opening of Pandora’s box. Dkt. 36. The City’s
assertion of privilege has, as Plaintiff argues, “permeated the litigation,” shaping
all of discovery and the course of litigation since. Dkt. 129 at 3. Walker’s
opportunity to depose Bybee now is simply insufficient to cure that overarching
prejudice.
ORDER
IT IS ORDERED that Defendant the City of Pocatello’s Motion for
Reconsideration (Dkt. 128) is DENIED.
DATED: September 4, 2021

_________________________
B. Lynn Winmill
U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 6