Free Order on Motion for Reconsideration - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Bank of America, N.A., 13 Defendant. 14 15 16 Pending is Defendant's Motion For Reconsideration of the Court's Order of September 17 14, 2006 ruling that Barbara Davis' notes shall, in part, be disclosed to Plaintiff, and directing 18 Defendant to submit in camera a statement designating which portions of Barbara Davis' 19 notes are ordinary work product or opinion work product, and therefore subject to disclosure. 20 (Doc. #303). For the reasons set forth below, the Court will deny the motion.. 21 The Court has discretion to reconsider and vacate its orders. See Barber v. Hawaii, 22 42 F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-Cology, Inc., 982 F.2d 394, 396 23 (9th Cir. 1992). "A Rule 59(e) motion is a proper vehicle for seeking reconsideration of a 24 25 may grant a Rule 59(e) motion to amend judgment on four grounds: (1) to correct "'manifest 26 errors of law or fact upon which the judgment is based'"; (2) where the movant presents 27 "'newly-discovered or previously unavailable evidence'"; (3) "'to prevent manifest injustice'"; 28
Case 2:03-cv-02262-ROS Document 312 Filed 11/02/2006 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Kaye K. Hutton, Plaintiff, vs.

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No. CV 03-2262-PHX-ROS ORDER

summary judgment ruling." Tripati v. Henman, 845 F.2d 205, 206 (9th Cir. 1988). A court

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or (4) where there has been an "'intervening change in controlling law.'" Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003).1 Plaintiffs argue that the Court should vacate its Order, because it committed legal error when it granted summary judgment on grounds not raised by Defendants. Defendant first argues that information contained in Ms. Davis' notes is available by other means, namely the deposition of Mr. Aubry, and therefore Plaintiff has no right to any portion of the notes. The Court found, however, that "Ms. Davis' notes are the only written memorialization of what the Bank was told by Mr. Aubry" and that Plaintiff would not be able to obtain the substantial equivalent of Ms. Davis' notes from other sources, including Mr. Aubry. Defendant presented this same argument in its Opening Memorandum on the Discoverability of the Notes of Barbara Davis, Esq (Doc. #194). A motion for reconsideration should not be used "to ask the Court to rethink what the Court had already thought through­rightly or wrongly." Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). Therefore, the Court will not consider this argument. Defendant also states that the Court concluded that it was impossible for it to determine which of Ms. Davis' notations are opinion versus ordinary work product, it follows that counsel will also be unable to complete the task. The Court is not in possession of the notes for analysis. Defense counsel is in the best position to make the threshold evaluation and had the burden to make the best-effort to determine which of Ms. Davis' comments are opinion work product and submit the conclusions within the time required. The Court will review counsel's conclusions in camera and issue an order in due course regarding which of Ms. Davis' notes must be disclosed.

The Court will construe Plaintiffs' Motion as a Motion For Reconsideration brought pursuant to Rule 59(e). -2Case 2:03-cv-02262-ROS Document 312 Filed 11/02/2006 Page 2 of 3

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Accordingly, Defendant's Motion For Reconsideration of the Court's Order of September 14, 2006 is DENIED.

DATED this 2nd day of November, 2006.

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