Adobe Sysems Incorporated v. Christenson et al

Filing 149

ORDER Denying 147 Motion for Clarification or Limited Relief re May 31, 2011, Discovery Order re 144 Order on Motion. Signed by Magistrate Judge George Foley, Jr on 8/16/11. (Copies have been distributed pursuant to the NEF - ASB)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7
8
9
10
11
12
13

ADOBE SYSTEMS INCORPORATED,

)
)
Plaintiff,
)
)
vs.
)
)
JOSHUA CHRISTENSON, et al.,
)
)
Defendants.
)
__________________________________________)
AND RELATED CLAIMS.
)
__________________________________________)

Case No. 2:10-cv-00422-LRH-GWF
ORDER
Motion for Clarification or
Limited Relief re: May 31, 2011
Discovery Order (#147)

14
15

This matter is before the Court on Plaintiff’s Motion for Clarification or Limited Relief Re

16

May 31, 2011, Discovery Order (#147), filed July 18, 2011. and Defendants’ Opposition to

17

Plaintiff’s Motio for Clarification (#148), filed August 4, 2011.

18

On May 26, 2011, the Court conducted a hearing on Defendants’ Motion to Preclude

19

Adobe’s or SIIA’s Use of or Reliance on Contracts, Licenses or Agreements (#127). On May 31,

20

2011, the Court issued an order precluding Plaintiff “from using or introducing license agreements

21

in support of its motion for summary judgment or at trial because Plaintiff failed to identify

22

contracts or license agreements in its Rule 26(a) disclosures.” See Order (#144). The Court further

23

ordered, however, that Plaintiff was not precluded “from using contracts, license agreements or

24

other documents produced by Defendants in Defendants’ disclosures or responses to discovery

25

requests.” Id. The Court’s order was based on the reasoning set forth during the hearing.

26

Now, approximately two months following the Court’s Order (#144), Plaintiff has filed a

27

motion seeking clarification pursuant to Rule 60. According to Plaintiff, “statements made during

28

the hearing for the underlying motion [Dkt. #127] indicate additional allowable uses of the

1

information that appears to be precluded by the Court’s subsequently entered [o]rder [Dkt. #144].”

2

See Pl’s Mot. #147 at 1:25-27. Plaintiff requests that the Court amend its order to include the

3

following “caveats” allegedly expressed by the Court during the May 26, 2011 hearing: (1) that

4

Plaintiff is allowed to use documents identified by Defendants in their disclosures; (2) that the

5

district court retains discretion to consider precluded documents that a witness is using to illustrate

6

testimony and not for introduction into evidence; and (3) that Plaintiff be permitted to use

7

documents that are referenced by documents produced by Defendants.

8

DISCUSSION

9

The Court is initially concerned with the timeliness of this motion. There is a fourteen

10

(14) day period for appeal of a non-dispositive order issued by a magistrate judge. See Local Rule

11

IB 3-1(a); see also Fed. R. Civ. P. 72(a). This motion was filed well beyond the deadline for appeal

12

of the underlying order. Generally, a party seeking relief under Rule 60 must move for relief before

13

the time for appeal expires. See Houle v. Nevada, 2011 WL 336854 (D. Nev.) (“After the time to

14

appeal has expired, a Rule 60 motion may not serve as a substitute for an appeal); see also In Re:

15

Western States Wholesale Nat. Gas Antitrust Litigation, 2010 WL 2539728 (D. Nev.) (Citing Gila

16

River Ranch, Inc. v. U.S., 368, F.2d 354, 357 (9th Cir. 1966)); see also Barragan v. Landry, 2008

17

WL 2954770 at n. 4 (D. Nev.) (Rule 60(b) does not toll the time to appeal). Thus, although the

18

court will consider the requested Rule 60 relief, the time period for appeal has run and filing this

19

motion does not retroactively toll or restart the time period for appeal of the underlying order.

20

Pursuant to Federal Rule of Civil Procedure 60(a), “[t]he court may correct a clerical

21

mistake or a mistake arising from oversight or omission whenever one is found in a judgment,

22

order, or other part of the reord.” Fed. R. Civ. P. 60(a). “Rule 60(a) only applies when there is a

23

discrepancy between what the court intended to include in a judgment, order, or record, and what

24

the court actually set out in written form.” Pinkney v. American Medical Response, Inc., 2010 WL

25

3522254 (D. Nev. 2010) (citing Manning v. Astrue, 510 F.3d 1246, 1248 (10th Cir. 2007). Rule

26

60(a) is not the proper mechanism to attain a substantive change in the legal conclusions or analysis

27

of a court order. United States v. Kaye, 739 F.2d 488, 491 (9th Cir. 1984).

28

...
2

1

Upon review of the transcript of the motion hearing held on May 26, 2011, the Court finds

2

no discrepancy between what the Court intended to be included in its written order and what is

3

included. During the hearing on the underlying motion, the Court very clearly rejected the position

4

that Plaintiff could rely on documents identified within documents produced by Defendants.1

5

There is no difference between documents “identified” within disclosures and documents

6

“referenced” within disclosures. The Court further finds that it is unnecessary to include language

7

in the order instructing the district judge on the parameters of his discretion regarding the use of

8

precluded documents for illustrative as opposed to evidentiary purposes.

9

Rule 60(b) provides for relief from final judgment, order or proceeding only for: (1)

10

mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence; (3) fraud; (4)

11

the judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief.

12

Fed. R. Civ. P. 60(b)(1)-(6). Motions made pursuant to Rule 60(b) must be “made within a

13

reasonable time ....”. Fed. R. Civ. P. 60(c)(1). They are not the proper vehicles for rehashing old

14

arguments. Pinkney, 2010 WL 3522254 at *2 (citing Resolution Trust Corp. V. Holmes, 1310,

15

1316 (S. D. Tex. 1994). Nor should they be used as a means to present new facts or issues that

16

inexcusably were not presented to the court in the prior matter. Id. (citing Bhatnagar v. Surrendra

17

Overseas, 52 F.3d 1220, 1231 (3rd Cir. 1995).

18

The Court finds that Plaintiff has not presented any compelling reason why its requested

19

relief should be granted under Rule 60(b). There is nothing new before the Court. This appears to

20

be nothing more than an attempt by Plaintiff to attain significant substantive changes to the prior

21

order for the purpose of circumventing its failure to provide adequate Rule 26(a) disclosures. The

22

Court has already heard the arguments on the matter and made its decision. “Plaintiff Adobe

23

Systems Incorporated is precluded from using or introducing license agreements in support of its

24

motion for summary judgment or at trial because Plaintiff failed to identify contracts or license

25
26
27
28

1

Addressing this very issue the Court states: “You’re saying, well, since [Defendants] produced this
document and there are references in this document to other documents that – that [Defendants] haven’t actually
produced, [Plaintiff] can then rely on those documents even though [Plaintiff] never put them in our [Rule 26(a)]
disclosure. I don’t go that far.” See Tr. of Proceedings (#146) at 23:2-9.

3

1

agreements in its Rule 26(a) disclosures. Plaintiff is not, however, precluded from using contracts,

2

license agreements or other documents produced by Defendants in Defendants’ disclosures or

3

responses to discovery requests.” See Order (#144). The ability of Plaintiff to use Defendants’

4

documents is limited to those documents actually produced. The Court never intended to permit

5

Plaintiff to use other documents that are “identified” or “referenced’ in Defendants’ disclosures but

6

were not actually produced. Accordingly,

7
8
9

IT IS HEREBY ORDERED that Plaintiff’s Motion for Clarification or Limited Relief Re
May 31, 2011, Discovery Order (#147) is denied.
DATED this 16th day of August, 2011.

10
11

______________________________________
GEORGE FOLEY, JR.
U.S. MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4