The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge United States District Court
ORDER DENYING RESPONDENT MOTION FOR RECONSIDERATION
On March 2, 2011, Respondent filed a motion for reconsideration of a discovery order issued by Magistrate Judge William McCurine, Jr. on February 11, 2011 in the above entitled action. [Doc. No. 110]. After reviewing the order at issue [Doc. No. 107], Respondent's reconsideration motion [Doc. No. 110], Chevron's opposition [Doc. No. 112], and Respondent's reply [Doc. No. 114], the Court DENIES Respondent's motion for reconsideration for the reasons stated below.
On February 11, 2011, Magistrate Judge William McCurine, Jr. issued an order granting Chevron Corporation's motion to compel discovery of a computer hard drive belonging to William Powers ("Powers"). [Doc. No. 107]. In granting Chevron's motion, the Court was especially persuaded by the following two facts: (1) Powers admitted he deleted many responsive e-mails and documents, and (2) Respondents never refuted Chevron's contention that Powers "threw out" a computer hard drive just days before Chevron initiated the instant action and just days after a related proceeding was initiated. [Doc. No. 107, p. 2]. With respect to relevance, the Court found the sought-after information went directly to the credibility of Powers, to the credibility of the allegedly neutral expert, Richard Stalin Cabrera, and also to the integrity of Cabrera's report to the Ecuadorian Court. [Doc. No. 107, p. 4]. With respect to any burden this forensic examination would place on Respondent, since Chevron was ordered to pay the cost of the examination, the Court found this discovery would not involve any undue burden or cost to the producers. [Doc. No. 107, p. 4]. Finally, the Court found that because Powers deleted potentially relevant e-mails and other data from his computer, the information sought cannot be obtained "by any means other than a forensic examination of [his] hard drive." [Doc. No. 107, p. 4 (emphasis added)].
Based on these facts, and bolstered by Federal Rule of Civil Procedure 26(b)(2)(B)*fn1 , which expressly allows for the discovery of electronically stored information, the Court found good cause existed to permit a forensic examination of the hard drive. [Doc. No. 107, pp. 2-3]. In its order granting Chevron's motion to compel this electronic discovery, the Court controlled the scope of this forensic examination by delineating specific instructions regarding (1) the appointment of a neutral forensic expert, (2) limits on said expert, (3) Chevron's responsibility for bearing the costs of the expert, (4) the creation of a search protocol to be limited in time and by search terms, and (5) any necessary future protective orders. [Doc. No. 107, pp. 4-5].
III. MOTION FOR RECONSIDERATION
On March 2, 2011, Respondent moved the Court to reconsider its February 11, 2011 order permitting discovery of certain e-mails and metadata. [Doc. No. 110]. Chevron Corporation opposed this reconsideration motion on April 15, 2011. [Doc. No. 112]. Respondent replied to Chevron's opposition on April 22, 2011. [Doc. No. 114].
A. Respondent's Motion for Reconsideration
Respondent opens its reconsideration motion by correctly citing the governing legal standard for reconsideration as explained by the Ninth Circuit in School District No. 1J v. Inc., F.3d 1255, 1263 (9th Cir. 1993)(hereinafter AC&S) . [Doc. No. 110, p. 1.] However, in his motion, Respondent focuses solely on the "justice" prong of the reconsideration analysis - i.e. proving a court committed "clear error" or the decision was "manifestly unjust." [Doc. No. 110, p. 1]. Respondent appears to have selected "manifest injustice" as his ground for reconsideration relief. [Doc. No. 110, p. 1 (citing Federal Rule of Civil Procedure 60(b)'s articulation of the concept of manifest injustice as including "fraud . . . , misrepresentation, or misconduct by an opposing party")]. To support his contention that the decision was manifestly unjust, Respondent alleges Chevron utilized "unsupported innuendo without citation to evidence" to carry its motion to compel discovery of the hard drive. [Doc. No. 110, p. 1]. Respondent argues that because the Court's February 11 discovery order was based on fraud, misrepresentation, or misconduct by Chevron, the order was manifestly unjust. [Doc No. 110, p. 1]. In his attempt to prove Chevron's fraud, misrepresentation, or misconduct, Respondent points to the following five specific instances of allegedly deceptive activity.
First, Respondent takes issue with Chevron's characterization of Powers' discovery production as "woefully inadequate." [Doc. No. 110, p. 2 (citing Chevron's Motion, Doc. No. 93, p. 1)]. Citing Powers' production of a 400 megabyte file and a banker's box filled with pertinent documents, Respondent claims "Chevron provided no evidence to support this statement." [Doc. No. 110, p. 2].
Second, Respondent questions Chevron's ability to "know for certain," based on a privilege log submitted in a related proceeding, Powers was in possession of, but did not produce, "dozens of responsive e-mails." [Doc. No. 110]. Again, Respondent argues Chevron's assumption is unproven and not affirmatively supported by any evidence. [Doc. No. 110, p. 2].
Third, Respondent disagrees with Chevron's contention that Powers did not produce e-mails in their native format, that instead he produced them in a PDF format. [Doc. No. 110, p. 2] Respondent characterizes this assertion as baseless, citing his personal policy of saving important e-mails as PDFs and arguing, then, PDF was the "format native at the time it was requested." [Doc. No. 110, p. 2].
Fourth, Respondent takes issue with Chevron implying--through its word choice of "now claims"--that Powers changed his story mid-stream regarding his policy of deleting e-mails every four to six months. [Doc. No. 110, p. 2]. Respondent claims Chevron cannot cite to any evidence establishing prior inconsistent ...