The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge
ORDER GRANTING IN PART RECONSIDERATION AND DENYING IN PART PLAINTIFF'S MOTION FOR [Docket No. 665] AND ALL RELATED COUNTERCLAIMS.
This case comes before the Court on Plaintiff's motion for reconsideration of this Court's March 1, 2010 Order adopting the Magistrate Judge's Report and Recommendation ("R&R") on Defendant's motions for sanctions, specifically, those portions of the Order precluding Plaintiff from introducing certain financial and product documents, and the March 31, 2009 Declaration of Karen Roberts. Defendant filed an opposition to the motion, and Plaintiff filed a reply. The motion came on for hearing on April 16, 2010. Eric Weisblatt, John Leathers and Susan Yohe appeared and argued for Plaintiff, and Richard Schnurr appeared and argued for Defendant.
"Reconsideration is appropriate if the district court (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." School Dist. No. 1J, Multnomah County, Oregon v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Here, Plaintiff argues the Court should grant the present motion in light of newly discovered evidence and because the original order will result in manifest injustice.
As to the preclusion sanctions, the Court denies Plaintiff's motion. The newly discovered evidence does not justify Plaintiff's counsel's failure to produce the financial and product documents in a more timely manner, nor has Plaintiff demonstrated that preclusion of this evidence will result in manifest injustice.
The only other aspect of the Court's Order that is subject to reconsideration is that portion adopting the Magistrate Judge's finding that Plaintiff filed a false declaration. As set out in the R&R, Defendant served its first set of requests for production of documents on October 5, 2007. After Defendant filed a motion to compel production of documents responsive to those requests, the Magistrate Judge ordered Plaintiff to conduct a due diligence search for the documents and state in a verified pleading that all such documents had been produced. The Magistrate Judge repeated that request in a subsequent order. Thereafter, Karen Roberts, the Director of New Business and Freeform Optics of Carl Zeiss Vision Australia Holdings, Ltd., filed a declaration in which she stated: "To the best of my knowledge, all copies and any duplicate in any form responsive to Signet Armorlite's requests have been printed and previously produced." (March 31, 2009 Decl. of Karen Roberts at ¶ 6.) In reviewing Defendant's motions for sanctions, the Magistrate Judge found that statement to be false, and in adopting the R&R, this Court implicitly adopted that finding as its own.
The newly discovered evidence reveals that Ms. Roberts' declaration was false through no fault of her own, but rather, was the result of her trial counsel's conduct, Mr. Weisblatt. That evidence came to light after an investigation was conducted by Plaintiff's other counsel into the circumstances that resulted in the recent imposition of sanctions. The evidence reveals that Ms. Roberts forwarded an eight megabyte "zip file" to Mr. Weisblatt in December 2008, but counsel failed to process those documents and failed to produce any of them to Defendant. Ms. Roberts provided updated information to Mr. Weisblatt on two subsequent occasions, and also provided updated information to another attorney, George Hovanec, each time with the same result: counsel failed to process the documents and did not produce any of them to Defendant. When Ms. Roberts filed her declaration, she did not know that these documents had not been produced. Indeed, in reliance on her counsel, she believed the documents in question had been produced, and she so stated in her declaration.
In light of this newly discovered evidence, this Court grants Plaintiff's motion to reconsider its previous Order to the extent it found Ms. Roberts filed an intentionally false declaration with the Court. She did not. On reconsideration, the Court finds that declaration was false through no fault of Ms. Roberts, but rather was the result of her trial counsel's conduct. Accordingly, the Court hereby amends its March 1, 2010 Order adopting the Magistrate Judge's R&R to exclude the finding that Ms. Roberts filed a false declaration. That finding has been rebutted by the newly discovered evidence presented in conjunction with this motion, and is no longer part of the record of this Court.
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