Rural Water Systems Insurance Benefit Trust v. Group Insurance Administrators, Inc.

160 F.R.D. 605, 1995 U.S. Dist. LEXIS 10265, 1995 WL 102827
CourtDistrict Court, D. Kansas
DecidedFebruary 7, 1995
DocketNo. 91-2471-GTV
StatusPublished
Cited by9 cases

This text of 160 F.R.D. 605 (Rural Water Systems Insurance Benefit Trust v. Group Insurance Administrators, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rural Water Systems Insurance Benefit Trust v. Group Insurance Administrators, Inc., 160 F.R.D. 605, 1995 U.S. Dist. LEXIS 10265, 1995 WL 102827 (D. Kan. 1995).

Opinion

MEMORANDUM AND ORDER

NEWMAN, United States Magistrate Judge.

This matter is before the court on plaintiffs’ Motion for Partial Reconsideration of Memorandum and Order entered September 23, 1994 (doc. 81). Garnishee Evanston Insurance Company (“Evanston”) has filed a response. Plaintiffs have filed a reply.

On August 26, 1993, Evanston served its request for production of documents upon plaintiffs. Plaintiffs served their responses to the requests on October 14, 1993. As to certain requests, plaintiffs agreed to produce “all relevant and nonprivileged documents” at a mutually convenient time and place. As to the requests to which plaintiffs objected, the response was as follows:

Objection. This request seeks to invade the attorney-client privilege and work product doctrine. Without waiving this objection, all relevant and nonprivileged documents will be produced at a mutually convenient time and place.

After several attempts to resolve the discovery disputes, plaintiffs filed a motion for protective order limiting the scope of discovery. Thereafter, Evanston filed a motion to compel discovery. By order dated September 23, 1994, the court denied plaintiffs’ motion for protective order and granted Evans-ton’s motion to compel. Plaintiffs have now filed a timely motion seeking reconsideration of that portion of the September 23, 1994, Memorandum and Order “overruling Rural Water’s attorney-client privilege and work product privilege objections.”

The Federal Rules of Civil Procedure do not provide for motions to reconsider, rather, they arise under D.Kan.Rule 206(f). 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 is appropriate if the court has obviously misapprehended a party’s position, the facts, or the 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). An additional factor considered by some courts is the need to prevent manifest injustice. Zimmerman v. Sloss Equipment, Inc., 835 F.Supp. 1283 (D.Kan.1993). A motion to reconsider is not appropriate if the movant only wants the court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.), cert. denied, — U.S. -, 113 S.Ct. 89, 121 L.Ed.2d 51 (1992). A party who fails to present its strongest case in the first instance is not entitled to a second chance in the form of a motion to reconsider. Voelkel v. General Motors Corporation, 846 F.Supp. 1482 (D.Kan.1994); Renfro v. City of Emporia, 732 F.Supp. 1116, 1117 (D.Kan.1990). 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).

Plaintiffs contend that reconsideration of the court’s order is required to prevent manifest injustice. The court held, in its September 23, 1994, Memorandum and Order, that plaintiffs had failed to carry their burden of persuasion establishing that certain discovery was protected by attorney-client privilege or work product protection. While plaintiffs suggest that the court held that they have waived these privileges, such construction would be erroneous. Waiver involves an intentional relinquishment of a right. Waiver was not in issue. The court simply denied the motion for protective order and granted the motion to compel discovery because plaintiffs failed to carry their burden [607]*607of proof on the objections raised to the subr mitted discovery.

In the first instance, plaintiffs argue that ordering production of the documents to which they claim a privilege is unjust because they asserted their objections to the requested discovery timely and their objections were similar to the objections raised by Evanston in response to discovery served upon it. The argument is without merit. The issue is not the sufficiency of the objection to discovery submitted but the failure to carry the burden of persuasion on the objection. The issue involved relates to plaintiffs’ failure to provide adequate facts in support of the objection to permit the adverse party to evaluate the merits of the objection or to challenge it.

Plaintiffs contend that, as common practice, privilege logs are not provided until the requested documents are produced. This reasoning is also without merit. Common practice does not determine the court’s procedures and practices. Whether one attorney or many attorneys disregard established law or procedures does not determine existing law. Established law is not obliterated because some parties fail to observe it. The court expects the parties to proceed in accordance with established law. The parties have a right to expect it of one another. A party proceeding otherwise does so at its peril.

Plaintiffs suggest that in focusing on the scope of discovery issues plaintiffs simply neglected to discuss this issue in their responsive brief to the motion to compel. The court, however, did not determine this issue solely on plaintiffs’ failure to respond to the issue in their responsive brief. Rather, the court considered the conduct of plaintiffs throughout. The issue regarding the production of a privilege log was not new to plaintiffs in this case. Immediately following the service of answers to plaintiffs’ discovery in this action, Evanston served a privilege log and produced the documents to which no privilege was claimed. It was after receipt of the privilege log by plaintiffs that plaintiffs responded to discovery served by Evanston. Notwithstanding plaintiffs’ prior receipt of a privilege log, plaintiffs did not provide such a log. In fact, plaintiffs did not provide any documents, even the documents they had agreed to produce in their responses and to which they raised no objection.

Notwithstanding that plaintiffs filed a motion for protective order as to the scope of discovery and Evanston filed a motion to compel discovery, plaintiffs still did not serve a privilege log. During the intervening months while briefing the issues and awaiting the court’s decision, plaintiffs did not serve a privilege log. Upon receipt of the court’s order, plaintiffs still made no unconditional offer of a privilege log. Rather, plaintiffs suggested that they had no objection to preparing and producing such a log and suggested that the court should “alleviate the harsh result of a finding that Rural Water had inadvertently waived its attorney-client and work product privileges through failing to specify the particular documents for which these privileges are asserted,” by permitting plaintiffs to now provide Evanston with a privilege log.

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160 F.R.D. 605, 1995 U.S. Dist. LEXIS 10265, 1995 WL 102827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rural-water-systems-insurance-benefit-trust-v-group-insurance-ksd-1995.