United States District Court, E.D. California
ADRIANNA WORMUTH, SCOTT WORMUTH AND H.W., A MINOR, BY AND THROUGH HIS GUARDIANS AD LITEM ADRIANNA WORMUTH AND SCOTT WORMUTH, Plaintiffs,
LAMMERSVILLE UNION SCHOOL DISTRICT, JAMES YEAGER, DAWN IBBS, TERESA HAUN, KIRK NICHOLAS, and KHUSHWINDER GILL, and DOES 1-30, Defendants.
asks the court to reconsider the magistrate judge's order
requiring the defendant District to produce documents it says
were privileged. Notice of Req., ECF No. 68; Mem. P. & A.
In Support of Req. for Reconsideration (“Req.”),
ECF No. 70. On the same day, plaintiffs opposed the request.
Opp'n, ECF No. 69. For the reasons discussed below, the
court DENIES the request to reconsider the magistrate
August 2016, plaintiffs served defendant Lammersville Union
School District (“LUSD” or
“District”) with Requests for Production, Set
One. Hansen Decl. ¶ 2, ECF No. 36-1. As relevant here,
Request for Production No. 21 sought “[a]ny
investigation records related to any allegation of misconduct
by any named defendant.” Joint Statement at 4, ECF No.
following months, the parties agreed to a series of
extensions for LUSD to respond to the requests, with December
1, 2016 as the ultimate due date. Hansen Decl. ¶ 2. On
that date, LUSD timely responded. Id. LUSD objected
to Request for Production No. 21 in part because
plaintiffs' request sought privileged documents.
See Req. at 4.
mid-January 2017, the parties met and conferred regarding
LUSD's responses. Hansen Decl. ¶ 2; id. Ex.
1, ECF No. 36-2. In three meet-and-confer letters, plaintiffs
repeatedly asked LUSD for a detailed privilege log so they
could assess LUSD's privilege claims. Hansen Decl. Exs.
1-3, ECF Nos. 36-2-4. In their final letter, plaintiffs set a
February 2, 2017 deadline for LUSD to produce a log, after
which they would seek the court's involvement.
Id. Ex. 3 at 2.
February 10, 2017, the parties submitted a joint statement
regarding discovery disputes. See Joint Statement.
Plaintiffs asked the court to order LUSD to produce a
privilege log. Id. at 6-7. LUSD explained it could
not prepare a log given the breadth of plaintiffs'
request, but nonetheless offered to produce one. Id.
magistrate judge construed the joint statement as a motion to
compel and held an April 5, 2017 motion hearing. ECF No. 41.
At hearing, the magistrate judge found LUSD waived any
privilege by its failure to timely produce a privilege log.
April 5, 2017 Transcript at 32:2-3, ECF No. 50. The
magistrate judge granted plaintiffs' motion as to their
Request for Production No. 21. Id. at 17:21-22;
Discovery Order at 2, ECF No. 42 (signed and filed on April
asked the magistrate judge to reconsider his waiver ruling.
Am. Suppl. Joint Statement at 6-7, ECF No. 47. At hearing on
the motion to reconsider, the magistrate first explained
LUSD's request violated Local Rule 230(j) because it was
not formally noticed for hearing and did not explain what new
or different facts existed to support its request. May 3,
2017 Transcript at 16-17, ECF No. 64. The magistrate judge
nonetheless denied LUSD's reconsideration request on the
merits. Id. at 17-18 (citing Burlington Northern
& Sante Fe Ry. Co. v. U.S. Dist. Court for the Dist. of
Mont., 408 F.3d 1142 (9th Cir. 2005)). The magistrate
judge denied the request for reconsideration. Id. at
19:17-18; Reconsideration Order at 2, ECF No. 61 (signed and
filed on May 4, 2017).
18, 2017, LUSD filed its request here for reconsideration of
the magistrate judge's most recent order denying
Rule of Civil Procedure 72(a) directs district judges to
consider timely objections to nondispositive pretrial orders
issued by magistrate judges and to “modify or set aside
any part of the order that is clearly erroneous or is
contrary to law.” See also Local Rule 303(f);
28 U.S.C. § 636(b)(1)(A). The “contrary to
law” standard permits independent review of a
magistrate judge's legal determinations. See,
e.g., Brooks v. Motsenbocker Advanced Developments,
Inc., 2008 WL 3049983, at *1 (S.D. Cal. Aug. 1, 2008)
(citing Haines v. Liggett Group, Inc., 975
F.2d 81, 91 (3d Cir. 1992)). The “clearly
erroneous” standard applies to the magistrate
judge's factual determinations and discretionary
decisions. Maisonville v. F2 Am., Inc., 902
F.2d 746, 748 (9th Cir. 1990).
finding is ‘clearly erroneous' when although there
is evidence to support it, the reviewing [body] on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” Concrete Pipe and
Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602,
622 (1993) (quoting United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948)). “[R]eview under
the ‘clearly erroneous' standard is significantly
deferential[.]” Id. at 623. “To succeed
[on a motion for reconsideration], a party must set forth
facts or law of a strongly convincing nature to induce the
court to reverse its prior decision.” Enriquez v.
City of Fresno, No. CV F 10-0581 AWI DLB, 2011 WL
1087149, at *1, at *3 (E.D. Cal. Mar. 23, 2011). Furthermore,
when filing a motion for reconsideration, a party must show
“what new or different facts or circumstances are
claimed to exist which did not exist or were not shown upon
such prior motion, or what other grounds exist for the
motion.” Local Rule 230(j)(3). “A motion for
reconsideration ‘may not be used to raise arguments or
present evidence for the first time when they could
reasonably have been raised earlier in the
litigation.'” Marlyn Nutraceuticals, Inc. v.
Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.
2009) (quoting Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000)).
Timeliness and ...