Free Motion for Reconsideration - District Court of Arizona - Arizona

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RYLEY CARLOCK & APPLEWHITE One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Telephone: 602/258-7701 Telecopier: 602/257-9582 Charles L. Chester ­ 002571 [email protected] John M. Fry - 020455 [email protected] Kelly K. Johnson ­ 022793 [email protected] Attorneys for Defendant

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA KAYE K. HUTTON, as an individual and as representative of a class consisting of others similarly situated, Plaintiff, No. CV2003-2262-PHX-ROS DEFENDANT'S MOTION FOR RECONSIDERATION (Assigned to the Honorable Roslyn O. Silver) Defendant.

14 v. 15 BANK OF AMERICA, N.A., 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Defendant, requests that this Court reconsider a portion of its September 14, 2006 Order on the discovery dispute over disclosure of Barbara Davis' notes. This Motion is made pursuant to LRCIV 7.2(g) and Fed.R.Civ.P. 60(b) and is supported by the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES Rule 60(b) Pursuant to Rule 60(b), relief may be sought under the following circumstances: (1) mistake . . . or (6) some other reason justifying relief. Defendant has grounds for relief pursuant to Rule 60(b) because a portion of this Court's Order mistakenly applies Ninth Circuit law and requires performance of an impossible task. Therefore, relief is justified by Rule 60(b)(1) and (6).
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II.

This Court's Order. Based on the disputed record in this matter, this Court ruled by its September 14,

2006 Order that: A. B. Ms. Davis' notes are covered by the work product doctrine. Ms. Hutton has established a substantial need for the ordinary work

product in Ms. Davis' notes. C. Counsel undersigned is to submit an affidavit identifying those portions of

Ms. Davis' notes which are ordinary work product and those portions which are opinion work product. Defendant agrees Ms. Davis' notes are covered by the attorney work product doctrine. Defendant respectfully submits that under the law of the Ninth Circuit, Ms. Hutton has not and cannot establish entitlement to the notes and counsel undersigned has been assigned an impossible task. III. Analysis. This Court properly focused on the only basis upon which Ms. Hutton could discover the notes: whether substantial need has been shown which would permit discovery of ordinary work product. To be entitled to some portion of the notes, Ms. Hutton must demonstrate substantial need and an inability to obtain the materials by other means. Order, p. 3, lns. 10-16. The "material" Ms. Hutton seeks is the communications of Mr. Aubry to Mr. Price. Order, p. 4, lns. 13-17. Those communications are available by other means, the deposition of Mr. Aubry, which has been taken. Therefore, Ms. Hutton cannot establish her right to any portion of the notes as a matter of law. Navajo Nation v. James W. Norris, 331 F.3d 1041, 1046 (2003). What Ms. Hutton really seeks is impeachment evidence, a contemporaneous recordation of what Mr. Aubry said. However, to order disclosure of Ms. Davis' notes solely for that purpose would render Navajo Nation meaningless. Attorneys' notes
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might always reflect inconsistencies between deposition testimony and the notes. That speculative assumption cannot be said to constitute substantial need. Navajo Nation. Further, as this Court noted, it is impossible to determine which, if any, of the notations reflect Ms. Davis' impression of Mr. Aubry's comments. Order, p. 5, lns. 5-7. Therefore, on their face, the notes cannot serve as a basis for impeachment. IV. Counsel Is Asked to Perform an Impossible Task. When defining potential disclosure obligations, this Court cites with favor Lawrence O'Connor v. Boeing North American, Inc., 216 F.R.D. 640 (C.D. Ca. 2003). That case defines ordinary work product as that which contains "raw factual information." Id., at 642. As noted above, this Court concluded that it is impossible to determine which, if any, of the notations reflect Ms. Davis' impressions of Mr. Aubry's comments. It follows that counsel cannot possibly determine which, if any, of the notes reflect "raw factual information" and, therefore, which, if any, are ordinary work product. More fundamentally, based on the case law cited by this Court, Ms. Davis' "impressions" of Mr. Aubry's comments are opinion work product. Id. As such they virtually are absolutely privileged. Id.; Hickman v. Taylor, 329 U.S. 495, 513 (1947). V. Conclusion For the foregoing reasons, Defendant requests that this Court reconsider its Order and order that Ms. Hutton is not entitled to Ms. Davis' notes. DATED this 25th day of September, 2006. RYLEY CARLOCK & APPLEWHITE

By /s/Charles L. Chester Charles L. Chester John M. Fry Kelly K. Johnson One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Attorneys for Bank of America, N.A.

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Ms. Lydia A. Jones ROGERS & THEOBALD, LLP 2425 East Camelback Road Phoenix, Arizona 85016 Attorneys for Plaintiff Michael O'Connor Jennings, Strouss & Salmon, P.L.C. The Collier Center, 11th Floor 201 E. Washington Street Phoenix, AZ 85004 By: /s/ Lisa Lopez

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