Allison et al v. Dolich et al

Filing 214

OPINION and ORDER - Plaintiffs motion 208 for reconsideration is GRANTED. Plaintiffs are entitled to the production of objective communications exchanged between Defendants and their legal counsel after March 17, 2014, with regard to the legality o f the tip pool under then existing case law, statutes, regulations, or rules, including a second deposition of Motschenbacher, if appropriate. Additionally, the court will conduct in-camera review of the six documents identified in Motschenbachers privilege log dated from March 12, 2014, to March 16, 2014. Defendants are ordered to provide these documents directly to the court for such review. DATED this 7th day of February, 2018, by United States Magistrate Judge John V. Acosta. (peg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

NANCY ALLISON and HOLLY BURNEY,
both in their individual capacities and, in
addition, as a collective action on behalf of
others similarly situated,

Case No.: 3:14-CV-1005-AC
OPINION AND ORDER

Plaintiffs,
v.
SCOTT DOLICH and ANNA JOSEPHSON,
individuals, and PARK KITCHEN LLC,
an Oregon limited liability company,
Defendants.
___________________________________
ACOSTA, Magistrate Judge:
Introduction
Plaintiffs Nancy Allison (“Allison”) and Holly Burney (“Burney”) (collectively “Plaintiffs”)
seek clarification, or reconsideration, of the court’s ruling on their motion to compel documents and

PAGE 1 - OPINION AND ORDER

{sib}

deposition testimony from Defendants and subpoenaed party Anthony Motschenbacher related to
an advise of counsel defense (the “Motion”). In an opinion and order filed July 7, 2016, the court
denied the Motion, finding Plaintiffs were entitled only to information communicated to Defendants
by counsel and relying on Defendants’ representation they have already provided Plaintiffs with
copies of all communications between Defendants and Motschenbacher related to the request
Motschenbacher research the legality of shared tip pools (the “Order”). Allison v. Dolich, Case No.
14-CV-1005-AC, 2017 WL 2901930 (D. Or. July 7, 2017). Plaintiffs do not attack this ruling but
merely request the court address the remainder of the Motion – “the motion to compel the discovery
of advice given by Mr. Motschenbacher, Barran Liebman, or Stoel Rives to defendants about the
legality of the tip pool after March 17, 2014 (the date of Mr. Motschenbacher’s opinion letter).”
(Pls.’ Mot. to Clarify and/or Reconsider, ECF No. 208, at 1.)
Legal Standard
So long as a court has jurisdiction over a case, “it possesses the inherent procedural power
to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient.” City
of L.A., Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2011); see also FED.
R. CIV. P. 54(b) (2017)(“[A]ny order or other decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties does not end the action as
to any of the claims or parties and may be revised at any time before the entry of a judgment . . . .”)
However, reconsideration is “an extraordinary remedy, to be used sparingly . . . ,” Kona Enters., Inc.
v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000), and a motion to reconsider should not be used
to implore the court to rethink matters already decided. Century Indem. Co. v. The Marine Grp.,
LLC, No. 3:08-CV-1375-AC, 2016 WL 96147, at *2 (D. Or. Jan. 7, 2016) (citing Motorola Inc. v.
PAGE 2 - OPINION AND ORDER

{sib}

J.B. Rodgers Mechanical Contractors, 215 F.R.D. 581, 582 (D. Az. 2003)). A court should
reconsider its earlier decision only if it: “(1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening
change in controlling law.” Sch. Dist. No. 1J v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
Discussion
Upon review of the Motion and the Order, the court agrees it failed to address the entirety
of the relief requested in the Motion. Consequently, the court finds its committed clear error in the
Order, or the Order was manifestly unjust, and grants Plaintiffs’ motion for reconsideration. Upon
reconsideration, the court adopts the analysis contained in the Order and applies it to Plaintiffs’
request for communications between Defendants and their legal counsel after Motschenbacher’s
March 17, 2014 opinion letter.1
Specifically, Plaintiffs are entitled to the production of all objective communications
exchanged between Defendants and their legal counsel, namely Motschenbacher, Barran Liebman,
or Stoel Rives, after March 17, 2014, with regard to the legality of the tip pool under then existing
case law, statutes, regulations, or rules. To the extent Motschenbacher refused to answer questions
regarding such objective communications in his first deposition, Plaintiffs may seek such answers
in a second deposition of Motschenbacher. Plaintiffs are not, however, entitled to the discovery of
subjective communications involving the interpretation or application of the content of such
communications or opinions to the pending litigation.
Plaintiffs additionally ask the court to conduct in-camera review of the documents identified

1

Plaintiffs requested oral argument in the Motion. The court finds the Motion appropriate
for disposition without oral argument pursuant to LR 7-1(d)(1) and denies the request.
PAGE 3 - OPINION AND ORDER

{sib}

in Motschenbacher’s privilege log. Plaintiffs assert internal communications among legal counsel
may be relevant to the extent they restrict the requested legal advice to that favorable to Defendants,
rather than a neutral evaluation of the legality of Defendants’ tip-pool policy. Plaintiffs’ request is
impliedly limited to email correspondence between Motschenbacher and Jeffrey Crosswhite from
March 12, 2014, to March 16, 2014, and a March 16, 2014 memorandum from Crosswhite to
Motschenbacher. (Egan Decl. dated April 19, 2017, ECF No. 167, Ex. 5.) The court agrees to
conduct in-camera review of these six documents.
Conclusion
Plaintiffs’ motion (ECF No. 208) for reconsideration is GRANTED. Plaintiffs are entitled
to the production of objective communications exchanged between Defendants and their legal
counsel after March 17, 2014, with regard to the legality of the tip pool under then existing case law,
statutes, regulations, or rules, including a second deposition of Motschenbacher, if appropriate.
Additionally, the court will conduct in-camera review of the six documents identified in
Motschenbacher’s privilege log dated from March 12, 2014, to March 16, 2014. Defendants are
ordered to provide these documents directly to the court for such review.
DATED this 7th day of February, 2018.

/s/ John V. Acosta
JOHN V. ACOSTA
United States Magistrate Judge

PAGE 4 - OPINION AND ORDER

{sib}