Pensacola Firefighters' Relief Pension Fund Board of Trustees v. Merrill Lynch Pierce Fenner & Smith, Inc.

265 F.R.D. 589, 2010 U.S. Dist. LEXIS 17626, 2010 WL 503082
CourtDistrict Court, N.D. Florida
DecidedFebruary 5, 2010
DocketNo. 3:09cv53/MCR/MD
StatusPublished
Cited by2 cases

This text of 265 F.R.D. 589 (Pensacola Firefighters' Relief Pension Fund Board of Trustees v. Merrill Lynch Pierce Fenner & Smith, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pensacola Firefighters' Relief Pension Fund Board of Trustees v. Merrill Lynch Pierce Fenner & Smith, Inc., 265 F.R.D. 589, 2010 U.S. Dist. LEXIS 17626, 2010 WL 503082 (N.D. Fla. 2010).

Opinion

ORDER

MILES DAVIS, United States Magistrate Judge.

Now before the court are (1) a motion by defendant asking for partial reconsideration of the court’s order of November 18, 2009 with incorporated memorandum in support as supplemented, with plaintiffs response (does.69, 74, 80), (2) defendant’s supplemental response to plaintiffs motion to compel (doc. 70), (3) defendant’s motion for leave to file a reply in support of its motion for reconsideration with plaintiffs response in opposition and motion to strike the reply (docs.75, 77, 78), and (4) defendant’s motion for protective order with plaintiffs opposition (docs.76, 79).

On November 16, 2009 the court held a three hour hearing on plaintiffs motion to compel. That hearing resulted in the order defendant now wants reconsidered. The order also reserved ruling on whether discovery should be allowed on requests for production nos. 13,14,15(c) and 15(e).

Reconsideration

Defendant moves for reconsideration of two portions of the court’s November 18, 2009 order. First it asks the court to reconsider its finding that Merrill Lynch has waived the attorney-client privilege with respect to certain discovery requests due to its failure to provide a Fed.R.Civ.P. 26(b)(5) privilege log. Merrill Lynch argues: (1) that it acted on a good faith understanding that parties would define the scope of the production prior to exchanging privilege logs; and (2) its delay in producing a privilege log (which it states it has now done) should not constitute a waiver under the circumstances of this case. Plaintiff claims that it is entitled to the documents.

Motion for Reconsideration-legal standard

The Eleventh Circuit has described a motion for reconsideration as falling within the ambit of either Rule 59(e) (motion to alter or amend a judgment) or Rule 60(b) (motion for relief from judgment). Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir.1993). In either situation, relief granted from such motion is within “the sound discretion of the district judge and will not be overturned on appeal absent an abuse of discretion.” Id. “A district court’s denial of reconsideration is especially soundly exercised when the party has failed to articulate any reason for the failure to raise an issue at an earlier stage in the litigation.” Lussier v. Dugger, 904 F.2d 661, 667 (11th Cir.1990).

Reconsideration of a court’s previous order is an extraordinary remedy and, thus, is a power which should be used sparingly. American Ass’n of People with Disabilities v. Hood, 278 F.Supp.2d 1337, 1339 (M.D.Fla.2003) (citing Taylor Woodrow Constr. Corp. v. Sarasota/Manatee Airport Auth., 814 F.Supp. 1072, 1072-73 (M.D.Fla. 1993)); Beeders v. Gulf Coast Collection Bureau, 2009 WL 3013502, **1-2 (M.D.Fla.,2009); Carson v. J. Curt, Inc., 2008 WL 4274502, *1 (N.D.Fla.,2008). The courts have delineated three major grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence; (3) the need to correct clear error or prevent manifest injustice. Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D.Fla.1994); Beeders; Carson; supra. “A motion for reconsideration should raise new issues, not merely readdress issues litigated previously.” PaineWebber Income Props. Three Ltd. P’ship v. Mobil Oil Corp., 902 F.Supp. 1514, 1521 (M.D.Fla.1995). The motion must set forth facts or law of a strongly convincing nature to demonstrate to the court the reason to reverse its prior decision. Taylor Woodrow, 814 F.Supp. at 1073; PaineWebber, 902 [592]*592F.Supp. at 1521. “When issues have been carefully considered and decisions rendered, the only reason which should commend reconsideration of that decision is a change in the factual or legal underpinning upon which the decision was based”. Taylor Woodrow, 814 F.Supp. at 1072-73.

Analysis

In this case, Merrill Lynch does not rely on an intervening change in controlling law or the availability of new evidence. Thus, it presumably argues that the court’s decision should be reconsidered to prevent “manifest injustice.” With respect to the first argument, Merrill Lynch states that it acted on a good faith understanding that the parties would define the scope of the production prior to exchanging the privilege log. It also argues that its delay in providing a privilege log should not constitute waiver under the particular circumstances of this case, because this district has adopted a “holistic” analysis to evaluate whether waiver of privilege is appropriate. See Pitts v. Francis, 2008 WL 2229524 (N.D.Fla.2008) (failure to provide privilege log does not result in automatic waiver of the privilege, but rather courts apply “a holistic analysis taking into account several factors to determine whether the privilege has been waived”); Pensacola Beach Community United Church, Inc. v. National Union Fire, 2007 WL 737499 (N.D.Fla.2007) (same).

In response, plaintiff asserts that Merrill Lynch’s argument that it believed that the scope of production would be defined prior to it being required to produce a privilege log, which was raised for the first time in its motion for reconsideration, is disingenuous. Plaintiff points out that Merrill Lynch failed to raise the argument in its response to the plaintiffs request for production, in its answer to the motion to compel or in its oral argument before the court. If this argument was truly a motivation for Merrill Lynch’s good faith actions, its failure to raise it previously was a glaring omission, at the least. Generally, courts do not consider arguments belatedly raised, such as for the first time on appeal or in a reply brief, or such arguments are entitled to a less deferential standard of review. See, e.g. United States v. Lewis, 492 F.3d 1219, 1222 (11th Cir.2007); Farrow v. West, 320 F.3d 1235, 1249 n. 21 (11th Cir. 2003); United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir.1999); Hutchinson v. CIA 393 F.3d 226, 230 (C.A.D.C.2005). Merrill Lynch argues in its reply (doc. 75 at 3) that plaintiff is mistaken, that it did raise this issue at oral argument. It is true that this issue was mentioned, but even this mention was late. It also states that it had agreed to produce a privilege log for the requests for which scope was no longer an issue.

Plaintiff also contends that Merrill Lynch’s position flies in the face of the specific language of Rule 26(b)(5) which requires a party asserting privilege to expressly make the claim and describe the nature of the things not disclosed “in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A)(ii).

There is abundant district court case law, mostly unreported, holding that a party claiming privilege is obliged to produce a privilege log and its failure to do so means the privilege is waived.1 Although lengthy [593]

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265 F.R.D. 589, 2010 U.S. Dist. LEXIS 17626, 2010 WL 503082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pensacola-firefighters-relief-pension-fund-board-of-trustees-v-merrill-flnd-2010.