Reddick v. United States Department of Energy

Filing 32

ORDER Denying 28 Motion for Reconsideration. Signed by Judge Rosanna Malouf Peterson. (PL, Case Administrator)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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JULIE REDDICK,
NO: 4:15-CV-5114-RMP
Plaintiff,

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v.

ORDER DENYING MOTION FOR
RECONSIDERATION

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UNITED STATES DEPARTMENT
OF ENERGY,

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Defendant.

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Before the Court is Defendant Department of Energy’s (DOE’s) motion for

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reconsideration, ECF No. 28, of the Court’s January 23, 2017, order granting in

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part and denying in part DOE’s summary judgment motion relating to the agency’s

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withholding of documents requested by Plaintiff Julie Reddick under the Freedom

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of Information Act (“FOIA”), 5 U.S.C. § 552. Plaintiff, who represents herself in

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this matter, opposes Defendant’s motion. Having reviewed Defendant’s motion

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and attachments, Plaintiff’s response and attachments, the parties’ remarks at the

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February 10, 2017, bench trial scheduling conference, the remaining record, and

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the relevant law, the Court is fully informed. This Order memorializes the Court’s

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oral rulings at the conference.
ORDER DENYING MOTION FOR RECONSIDERATION ~ 1

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This matter concerns FOIA requests by Plaintiff, an employee of DOE, for

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two reports produced in relation to concerns that she submitted to the agency’s

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Employee Concerns Program. The Court determined that one of the reports

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qualified as a matter of law for protection under FOIA’s Exemption 5 deliberative

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process privilege, but a question of fact remained as to whether the other report,

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the “Van der Puy report,” should be protected under the same exemption. See ECF

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No. 26. Defendant’s motion for reconsideration offers additional evidence to

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support that the Van der Puy report should be protected from FOIA disclosure as a

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matter of law.

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Although not explicitly provided for in rule, a motion for reconsideration

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generally is considered “appropriate if the district court (1) is presented with newly

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discovered evidence, (2) committed clear error or the initial decision was

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manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch.

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Dist. No. 1J v. AC&S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “[A] motion for

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reconsideration should not be granted, absent highly unusual circumstances.” 389

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Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). A party must set

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forth facts or law “of a strongly convincing nature to induce the court to reverse its

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prior decision.” Ito v. Brighton/Shaw, Inc., No. 06 CV 01135 AWI DLB, 2008

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U.S. Dist. LEXIS 120317, *5 (E.D. Cal. June 3, 2008) (citing Kern-Tulare Water

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Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), rev'd in part on

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other grounds, 828 F.2d 514 (9th Cir. 1987), cert. denied, 486 U.S. 1015 (1988)).
ORDER DENYING MOTION FOR RECONSIDERATION ~ 2

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A motion for reconsideration of a summary judgment order based on newly

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discovered evidence “is treated similarly to a motion for a new trial, requiring

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evidence or argument that could not have been presented earlier" in the litigation.

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Smith v. San Francisco Unified School Dist., No. C 03-3715 PJH, 2006 U.S. Dist.

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LEXIS 94463, 2006 WL 3798139, (N.D. Cal. Dec. 22, 2006) (citing Schwarzer,

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Tashima & Wagstaffe, Federal Civil Procedure Before Trial § 14:362.1 (2006)). In

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addition, the party seeking to introduce new evidence must show that they

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exercised “due diligence” to discover the evidence and demonstrate how the newly

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discovered evidence “is of such magnitude that production of it earlier would have

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been likely to change the disposition of the case.” Coastal Transfer Co. v. Toyota

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Motor Sales, 833 F.2d 208, 211 (1987). Defendant’s motion focuses on the last

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consideration, whether the evidence would have changed the disposition of the

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summary judgment motion, while neglecting to address how the evidence is newly

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discovered and whether Defendant exercised “due diligence” in bringing it to the

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Court’s attention.

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Motions to reconsider should not enable a party to take a “wait and see”

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approach and then take an extra bite at the apple. See Ito, 2008 U.S. Dist. LEXIS

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120317 at *8. Here, DOE waited for the Court to issue its order to bring the

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information to the Court’s attention, despite having had the documents and

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information in its possession since October 2016. Moreover, DOE provided no

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ORDER DENYING MOTION FOR RECONSIDERATION ~ 3

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explanation for the delay in providing these documents. The appropriate forum for

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DOE to offer these documents for the Court’s consideration is at the bench trial.

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Redactions

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DOE requests, in the alternative to their motion for reconsideration,

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permission to redact personal identifying information of the individuals who

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participated in the investigation of Ms. Reddick’s employee concerns from the Van

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der Puy report. The Court finds that DOE has waived FOIA Exemption 6 by not

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asserting that Exemption 6 protected the Van der Puy report from disclosure in its

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original FOIA determinations. In addition, the Court notes that the Van der Puy

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report will be produced to Plaintiff subject to a protective order.
Accordingly, IT IS SO ORDERED:

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1. Defendant’s motion for reconsideration, ECF No. 28, is DENIED.

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2. Defendant’s request to redact the Van der Puy report prior to

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disclosing the report to Ms. Reddick is DENIED.
3. The bench trial scheduling order, including the timeframe for entering

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the protective order that will apply to the Van der Puy report, will be

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issued separately.

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The District Court Clerk is directed to enter this Order and provide copies to
counsel and Plaintiff.
DATED February 10, 2017.
s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge
ORDER DENYING MOTION FOR RECONSIDERATION ~ 4