Minge et al v. TECT Corporation et al
MEMORANDUM AND ORDER denying 156 Motion for Reconsideration of Court's prior Order 154 . Signed by Magistrate Judge Kenneth G. Gale on 8/18/2011. (df)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
UNITED STATES OF AMERICA
EX REL. MINGE, et al.,
TECT AEROSPACE, INC., et al.,
Case No. 07-1212-MLB
ORDER DENYING RELATORS’ MOTION FOR RECONSIDERATION
Relators move for reconsideration (Doc. 156) of certain aspects of this
Court’s Order (Doc. 154) compelling the production of documents. Relators’
primary argument is that although the Court followed legal principals in applicable
case law within this jurisdiction, it failed to consider more expansive legal
principals espoused in others. Because such an argument does not support a
finding of “clear error” or “manifest injustice” as required for a motion for
reconsideration (D. Kan. Rule 7.3(b)), the motion is DENIED.
Relators urge reconsideration because of “clear error” or “manifest
injustice.” (Doc. 157, p. 1). But reconsideration on these grounds is appropriate
only “where a court has obviously misapprehended a party's position [on] the facts
or the law, or a court has mistakenly decided issues outside of those the parties
presented for determination.” Anderson v. United Auto Workers, 738 F. Supp.
441, 442 (D. Kan. 1990). “A motion to reconsider is not a second chance for the
losing party to make its strongest case or to dress up arguments that previously
failed.” Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D.Kan. 1994),
aff’d, 43 F.3d 1484 (Table)(10th Cir. 1994).
Relators urge reconsideration of the Court’s application of the principle that
the common interest doctrine is a rule limiting the application of waiver of a
privilege, not a rule creating a separate privilege. In doing so, Relators concede
that the Court has followed local precedent, but argue that courts in other
jurisdictions have expanded the principal to create a separate privilege which
would, for example, shield communications from a party to a co-parties’ attorney.
Even if the Court would consider following the more expansive view of the
doctrine, a motion for reconsideration does not create an appropriate opportunity to
do so. The Court’s previous ruling, which followed law from this District, did not
create manifest injustice or constitute clear error.
Two matters raised in the present motion deserve separate attention. First,
Relators now argue for the protection, as either attorney-client communications or
as work product, of a document the parties call the “Minge Memorandum.” This
document is a memorandum (or are memoranda) prepared by Relator Minge “for
the government” commenting on certain documents. (Doc. 129-3). In their
discovery responses, Relators identified the Minge Memoranda and stated that it
would be produced. Id. The document was produced. Relators now explain that
the Minge Memorandum was produced inadvertently. The Minge Memorandum
does not appear on Relator’s privilege log. Relators claim that the document is
privileged under the common interest doctrine, either as a privileged
communication between Relator Minge and government counsel or as the
Government’s work product.
The production of the document, if unintentional, does not waive a privilege.
Fed.R.Civ.P. 26(a)(5)(b). However, the failure to make a timely objection to the
document, even when identifying the document in discovery responses and stating
that it will be produced, does constitute waiver. See Peat, Marwick, Mitchell &
Co. v. West, 748 F.2d 540, 541 (10th Cir. 1984) (upholding a finding that privilege
was waived when it was not specifically asserted until petitioner filed a motion for
reconsideration). Additionally, Relators’ claim of privilege for this document
relies on the expanded application of a common interest privilege, which would
either protect the communications from Relator Minge to government counsel, or
empower Relators to assert the government’s work-product privilege. The Court
has rejected that expansion of the rule.
The second matter is Relators’ concern that the Court has, in its previous
ruling, incorrectly categorized some of the e-mail communications associated with
certain rulings. (Doc. 154, at 17-20, n.3, 4, 5, 6). These categorizations were based
upon the, in some instances, sparse, descriptions in Relators’ privilege log. The
Court specifically stated that the “categorical rulings control over the footnote
listings.” Id. at 17. The Court is hopeful that the parties can, without further Court
intervention, make appropriate corrections to the lists if necessary to conform to the
IT IS THEREFORE ORDERED that the Relators’ motion is DENIED for
the reasons set forth above.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 18th day of August, 2011.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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