IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 8, 2009
SAM BESS, PLAINTIFF,
MATTHEW CATE, ET AL., DEFENDANTS.
ORDER DENYING REQUEST FOR RECONSIDERATION
Matthew Cate and David Shaw ("Defendants") filed a Request for Reconsideration of a Magistrate Judge's Order issued on November 26, 2008 ("Order") granting a Motion to Compel and awarding attorneys' fees. Docket at 78. Sam Bess ("Plaintiff") opposed the Request for Reconsideration. Federal Rule of Civil Procedure 72 requires a district court to modify or set aside any part of a magistrate judge's order that is "clearly erroneous or contrary to law."
In this case, the Order relied on extensive case law from this district. In a few instances, the cases upon which the Order relied even involved the Defendants raising identical arguments to those raised in this matter. Accordingly, Defendants have failed to demonstrate that the Order was clearly erroneous or contrary to law.
Furthermore, given Plaintiff's numerous efforts to meet and confer, Defendants refusal to produce a single document or a privilege log over an eight month period, and Defendants failure to take into account established precedent, Defendants have not demonstrated that their nondisclosure was "substantially justified." See Fed.R.Civ.P. 37(a)(5)(A)(ii). Accordingly, that portion of the Magistrate Judge's Order directing Plaintiff to file a statement of his reasonable expenses, including attorney's fees, incurred in making the Rule 37 motion was appropriate.
Defendants' Request for Reconsideration is DENIED. Accordingly, IT IS HEREBY ORDERED that:
1. The findings, recommendations and order filed November 26, 2008 are adopted in full;
2. Plaintiff's October 30, 2008 motion to compel discovery (docket no. 66) is granted. Defendants shall produce the documents requested for inspection and copying, without further objection, within ten (10) calendar days from the date of this order (docket no. 96); and
3. Having received no request for reconsideration by any party, the Magistrate-Judge's Order filed December 12, 2008 is final and Defendants Cate and Shaw shall pay plaintiff's reasonable attorneys' fees and costs in the amount of $8,175.83.
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