Burton v. R.J. Reynolds Tobacco Co.

175 F.R.D. 321, 1997 U.S. Dist. LEXIS 13104, 1997 WL 536084
District Court, D. Kansas·Decided August 14, 1997·No. No. 94-2202-JWL·Published·Cited by 19 cases

Opinion

MEMORANDUM AND ORDER

NEWMAN, United States Magistrate Judge.

This matter is before the court upon the motion of defendant R.J. Reynolds Tobacco Company (“RJR”) (doc. 269) for an order reconsidering the court’s order of February 3, 1997, related to the court’s review of thirty-three Council for Tobacco Research (“CTR”) Special Projects documents which had been withheld due to a claim of attorney-client privilege or work product immunity.1

A motion to reconsider is not of statutory derivation, but rather is found in D. Kan. Rule 7.3 which provides:

A party may file a motion asking a judge or magistrate judge to reconsider an order or decision made by that judge or magistrate judge. Such motion shall be filed within ten days after the entry of the order or decision unless the time is extended by the court. A motion to reconsider shall be based on (1) an intervening change in controlling law, (2) availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice.

Whether to grant or deny a motion for reconsideration is committed to the court’s discretion. Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988). A motion to reconsider gives the court the opportunity to correct manifest errors of law or fact and to review newly discovered evidence. Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir.1992). A motion to reconsider is appropriate if the court has obviously misapprehended a party’s position, the facts or applicable law, or if the party produces new evidence that could not have been obtained through the exercise of due diligence. Voelkel v. General Motors Corporation, 846 F.Supp. 1482 (D.Kan.1994); Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981). [324]*324It also affords the court the opportunity to prevent manifest injustice. Zimmerman v. Sloss Equipment, Inc., 835 F.Supp. 1283 (D.Kan.1993). “A motion to reconsider is not a second chance for the losing party to make its strongest case or to dress up arguments that previously failed.” Voelkel, 846 F.Supp. 1482 (citing OTR Driver at Topeka Frito-Lay, Inc. ’s Distribution Center v. Frito-Lay, Inc., 1993 WL 302203 [D. Kan.]). An improper use of the motion to reconsider “can waste judicial resources and obstruct the efficient administration of justice.” United States ex rel. Houck v. Folding Carton Administration Committee, 121 F.R.D. 69, 71 (N.D.Ill.1988).

RJR does not cite or argue the standards for reconsideration or the applicability of such standards to the issues before the court. Rather, RJR simply argues that the court’s decision is in error. Since RJR does not identify any intervening change in controlling law or newly available evidence, the court assumes that the issue is one directed toward correcting “clear error” or “to prevent manifest injustice.”

RJR’s first argument is directed toward reference in the court’s order to the decision of Magistrate Judge Boyle in Sackman, et al. v. Liggett Group, Inc., 920 F.Supp. 357 (E.D.N.Y.1996). RJR properly points out that there is no reference in the court’s order to the fact that the opinion of Judge Boyle was vacated by the district judge on May 25, 1996. See Sackman, et al. v. Liggett Group, Inc., 167 F.R.D. 6 (E.D.N.Y.1996). The court was aware of the vacation of the opinion and erred in not so noting. The court, however, did not cite the Sackman opinion as precedent on which the court was relying in determining the issues. The court simply noted that a review of the documents in this case confirmed the finding of the Sackman court that the- work product doctrine was not applicable to documents related to CTR Special Projects because “the motivation behind the special projects was public relations rather than research for use in litigation.”2 The decision of the court in Sackman played no role in the court’s decision in this case. The court’s decision would have been the same, notwithstanding. It is important to note that the Sackman decision was not vacated due to substantive error. It was vacated to allow certain intervenors, including RJR, to be heard on issues of attorney-client privilege and work product immunity then before the court, as the intervenors claimed that they jointly held the privileges in issue. After considering the arguments of the intervenors and reviewing 182 additional documents, the court reaffirmed its prior decision. See Sackman, et al. v. Liggett Group, Inc., 173 F.R.D. 358, 1997 WL 391633 (E.D.N.Y.1997). Since counsel have not advised the court as to whether any of the documents reviewed by this court were reviewed by Judge Boyle, the court does not believe that the Sackman case-is controlling herein. The court did not rely on the Sack-man decision in its determination of the original issues herein. Consequently, the citation error is not a basis for reconsideration.

The court, however, notes the recent findings by Judge Boyle, after his second review of CTR documents and after considering the arguments of RJR and others. Judge Boyle stated:

These documents confirm and further clarify that the Special Projects arm of CTR (and its predecessor, TIRC) was primarily intended to benefit the tobacco industry and its members, as contrasted with the research projects approved by the Scientific Advisory Board (“SAB”) of CTR which were selected and funded to benefit public health on the hazards of tobacco smoking.
The Special Projects research discussed in these documents undoubtedly were also of value to Liggett and other member tobacco manufacturers in developing a source of expertise that could also be used in the defense of product liability cases or before legislative hearings. This, however, was merely an incidental benefit. Expert testimony was separately funded through other sources. The additional 182 documents clarify the importance placed by the attorneys in charge of “Special Projects” in publicizing research results. This was done by funding projects where research [325]*325recipients would publish articles containing industry favorable findings and/or disputing the findings of scientists and physicians whose publicized findings showed a causal nexus between tobacco and disease, or were otherwise unfavorable to the economic interests of the tobacco member companies. Some of the Special Projects involved a reassessment, in the form of a critique, of evidence relating to an unfavorable scientific project that linked smoking to a specific disease. Other projects sought to further the tobacco industry’s interests by focusing on projects linking environmental factors and other non-smoking factors, such as air pollution, geographic location, type of employment and place of birth, with the incidence of diseases commonly associated with smoking. A recipient’s ability to generate favoi'able publicity, e.g., through publication and/or speeches were positive factors for consideration in the approval or renewal of funding.

Sackman, et al., v. Liggett Group, Inc., 173 F.R.D. 358, 363.

A review of the documents before this court confirms the above findings by Judge Boyle.

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Burton v. R.J. Reynolds Tobacco Co., 175 F.R.D. 321, 1997 U.S. Dist. LEXIS 13104, 1997 WL 536084 (D. Kan. 1997).

175 F.R.D. 321 (Burton v. R.J. Reynolds Tobacco Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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