CARA LESLIE ALEXANDER, et al.,
OF INVESTIGATION, et al.,
) Civil No. 96-2123 (RCL)
MEMORANDUM AND ORDER
This matter comes before the court on Motion for Reconsideration filed by counsel for James Carville. Upon consideration of the submissions of the parties and the relevant law, the motion for reconsideration is DENIED.
On February 24, 1998, plaintiffs served Carville with a subpoena and notice for deposition to be taken on March 10, 1998. In response to this notice, counsel for Carville, Jo Marsh, filed on March 4, 1998 a motion for protective order stating that Carville would not be able to attend the deposition as he would be fulfilling a prior commitment on that date the filming of the television program "Mad About You." Counsel for plaintiffs, Larry Klayman, refused to reschedule the appearance based on the belief that Carville had no intention of appearing for the deposition regardless of when it was scheduled. In support of this belief, plaintiffs presented this court with an uncontested affidavit of a process server accompanying plaintiffs Motion for Order to Show Cause stating that Carville told the process server "[he] could serve [Carville] all [he] wanted as he was not going to come to the deposition." Pls. Mot. for Order to Show Cause Ex. 2.
Carvilles Motion for Protective Order filed in response to the subpoena and notice of deposition provided this court with an assurance that Carville did not intend to attempt to evade his required appearance at the deposition. Accordingly, in an order dated March 5, 1998, this court delayed the deposition at Carvilles request so that he could travel to California to film "Mad About You" and ordered the parties to attempt to set a mutually agreeable time and date for the deposition. If the parties could not reach such an agreement, they were ordered to submit proposed dates and times to the court by March 6, 1998.
By March 6, 1998, the parties failed to reach an agreement on the rescheduling of the deposition. On that date, plaintiffs filed their Praecipe in Responsa to Courts Order of March 5, 1998. In this filing, plaintiffs suggested that the dates of March 12, 16, 17, 18, or 24 for the deposition of Carville. Also attached to plaintiffs Praecipe as an exhibit was a series of correspondence between plaintiffs counsel, Klayman, and Carvilles counsel, Marsh, documenting their efforts to arrive at a mutually agreeable time for the deposition.
On March 9, 1998, counsel for Carville submitted Response of James Carville to Plaintiffs Praecipe in Response to Courts Order of March 5, 1998. This filing indicated that Carville could not be available for deposition on March 16, 17, or 18 without stating why Carville would be unavailable for deposition on those dates and suggested March 24 as an available date.
In an order dated March 10, 1998, this court ordered Carville to appear for the deposition on March 16, 1998 at the time and location specified by plaintiffs. This order was based on Marshs failure to comply with this courts order of March 5, 1998 and her failure to provide this court with any reason for why Carville would not be available for the dates suggested by plaintiffs other than the fact that "[his] schedule is very full." Resp. to Pls. Ord. Of Mar. 10, 1998 at 2. The Court concluded that this reason was insufficient to permit Carville to avoid compliance with plaintiffs subpoena and notice for deposition.
On March 11, 1998, this court received Carvilles Motion for Reconsideration. Presently, the court again turns its attention to this matter.
"Motions for reconsideration are not specifically provided for under the Federal Rules of Civil Procedure." UMWA 1974 Pension Trust v. Pittston Co., 793 F. Supp. 339, 344 (D.D.C. 1992). Although Rule 60 which provides for relief for a final judgment or order is most analogous rule, "this rule by its terms applies only to final judgments and orders." Id. The Advisory Committee Notes indicate that:
The addition of the qualifying word "final" emphasizes the character of the judgments, orders or proceedings from which Rule 60 (b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires.
Rule 60, Advisory Committee Notes. As such, motions to reconsider interlocutory orders are not governed by Rule 60 (b), but rather, such determinations are committed to the sound discretion of the trial court. UMWA 1974 Pension Trust, 793 F. Supp. At 345 (citing Fayettville Investors v. Commercial Builders, 936 F.2d 1462 (4th Cir. 1991); 7 Moores Federal Practice, ¶ 60.20 ("Interlocutory orders and judgments are not within the provisions of 60 (b), but are left within the plenary power of the Court that rendered them to afford such relief from them as justice requires.")). A motion to reconsider is appropriate if the court has obviously misapprehended a partys 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. In the instant case, this standard has not been satisfied.
The Motion for Reconsideration filed by Marsh directly calls into question the factual and legal basis of this courts March 10, 1998 order. Unfortunately for Marsh, it is this courts interpretation of its own order rather than her opinion that controls in this case. As will be demonstrated, Marsh disregarded this courts March 5, 1998 order and she makes the bold accusation that this court failed to consider certain information in reaching its prior conclusions. In making these suggestions, she not only treats this courts order in a trifling manner, but provides a disservice to her client. Her conduct has cluttered the docket of this court unnecessarily and the entire matter could have been addressed in an efficient manner had she and Carville been completely forthcoming with the court at all relevant times. Instead, counsel for Carville chose to wait until filing her Motion for Reconsideration to fully apprise this court of the nature of Carvilles unavailability for deposition on the dates suggested by plaintiffs counsel.
The March 5, 1998 order issued by this court specifically states that "[t]he parties are hereby ORDERED to attempt to set a mutually agreeable time and date for the deposition. If the parties cannot reach such an agreement, they shall submit proposed dates and times to this court by March 6, 1998, and this court will order a date and time for the deposition to be taken." Order of March 5, 1998 at 2. As stated, plaintiffs filed their Praecipe in Response to Courts Order of March 5, 1998 on March 6 suggesting certain dates for the deposition as directed by the March 5, 1998 order. The exhibit attached to this Praecipe contains a series of letters faxed between counsel documenting their efforts to reach an agreeable date for the deposition.
The first letter sent by Marsh to Klayman stated that Carville would be available for deposition on April 1, 2, 7, 8, or 9. Klaymans response to the suggested dates asserted that the dates would cause unacceptable delay and continuing harm to the plaintiffs in the case and in the alternative, suggested the dates of March 16, 17, or 18. The next correspondence from Marsh to Klayman indicated that Carville would be out of the country on the dates suggested by Klayman and reiterated Carvilles availability on the dates in April. 1 In response, Klayman requested proof of the dates that Carville would be out of the country, the countries to which he would be traveling, the reasons for the travel, and proof of when the travel arrangements were made. Although Marsh divulged to Klayman that Carville would be traveling in South America, the correspondence included in the exhibit revealed that the remained of Klaymans inquiries were unanswered.
The Motion for Reconsideration filed by Marsh takes issue with the factual conclusions drawn by the court in its March 10, 1998 order. Initially, the motion states that Marsh "did not fail to comply with the Courts March 5 Order." Marsh reaches this conclusion because, in her opinion, "[b]y Plaintiffs Praecipe, the parties submitted [the proposed date and time to the court] on that date," Due to the fact that the Praecipe included the correspondence exchanged between the parties. Mot. for Recons. At 5. Marsh continues by stating "[t]he March 5 Order did not direct each party to file a separate pleading regarding this matter . . . All that Order required was that the information be provided to the Court by the parties. That was done." Id. At 5-6.
Contrary to Marshs own opinions, the March 5, 1998 order did in fact contemplate separate filings to be made by the parties. The order clearly stated "[I]f the parties cannot reach such an agreement [on the date of the deposition], they shall submit proposed dates and times to this court by March 6, 1998." Order of March 5, 1998 at 2 (emphasis added). At a minimum this order requires a joint filing by the parties and in no way suggests that one party can rely on the filings of another.
In a similar vein, Marsh states that in ordering the deposition to occur on March 16, 1998, "the Court knew that Mr. Carville was not available March 16, 1998, and knew that Mr. Carville would be in South America on that date." Mot. for Recons. At 5. This court is not blind to the fact that plaintiffs Praecipe contained letters exchanged between counsel and that these letters contained proposed dates for the deposition. The clarity of the courts prior order aside, this court must express its reluctance in relying on correspondence between counsel as a substitute for a filing with the court on an issue such as this. Moreover, although the correspondence between the parties contained references to Carvilles travels to South America, nearly all of the questions and requests posed by Klayman to Marsh regarding Carvilles travels were left without a response. These questions included Klaymans request for information pertaining to the reasons for the travel to South America, documentary proof of the dates of his travel, proof of when the trip was scheduled, and the time he would be out of the country. Despite filing a response to plaintiffs Praecipe, Marsh failed to address any of the concerns set forth by Klayman or to even take the opportunity to explain to the court why Carville would be unavailable. She instead chose to peremptorily rely on Carvilles "full schedule" rather than provide any explanation whatsoever to the court for his unavailability. Indeed, it was not until the Motion for Reconsideration presently before the court was filed that the court, for the first time, had a full understanding of Carvilles actual scheduling problems.
Marsh also challenges this courts interpretation of the Federal Rules of Civil Procedure. In the March 10, 1998 order, this court concluded that based on the information before the court and under the standards set forth in Rule 26 of the Federal Rules of Civil Procedure, Carville failed to demonstrate that justice required the court to protect him from annoyance, embarrassment, oppression, or undue burden." Fed. R. Civ. P. 26 (c). In the Motion for Reconsideration, Marsh disputes the courts conclusion that the party seeking a protective order bears the burden to justify the issuance of such an order and is quick to instruct the court of the existence of Rule 45 (c). The court is readily aware of the requirements governing the issuance of subpoenas to non-parties as set forth in Rule 45 (c).
Marshs initial efforts to prevent the deposition of Carville from occurring on the date suggested by plaintiffs was premised on Rule 26 (c) provides:
Upon motion by a party or the person from whom discovery is sought . . . and for good cause shown, the court in which the action is pending or alternatively, on matters relating to deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.
Fed R. Civ. P. 26 (c). As the party seeking the protective order, Carville bore the burden of making the showing of good cause contemplated by the rule. Rolscreen Co. v. Pella Products of St. Louis, Inc., 145 F.R.D. 92, 95-96 (S.D. Iowa 1992); CBS, Inc. v. Ahern, 102 F.R.D. 820, 822 (S.D.N.Y. 1984). In this regard, movants must make a specific demonstration of facts to support their request for the protective order and may6 not rely on conclusory or speculative statements concerning the need for a protective order. Specifically, good cause exists under Rule 26 (c) when justice requires the protection of a party or a person from any annoyance, embarrassment, oppression, or undue burden or expense. Moreover, the showing required under Rule 26 (c) must be sufficient to overcome plaintiffs legitimate and important interests in trial preparation. See Farnsworth v. Proctor & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985) ("[T]rial preparation and defense . . . are important interests, and great care must be taken to avoid their unnecessary infringement."). It was this courts conclusion that Carville had not sustained this burden. Based on the facts before the court, Marsh failed to demonstrate to the satisfaction of the court the unavailability of Carville on the dates proposed by Klayman.
Marsh suggests that the court failed to adhere to the requirements of Rule 45 (c) (1) in its order of March 10, 1998. Marshs suggestion could not be further from the truth.
Rule 45 (c) (1) requires "a party or an attorney responsible for the issuance and service of a subpoena [to] take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena." Fed. R. Civ. P. 45 (c) (1). Rule 45 (c) (1) also instructs the court "on behalf of which the subpoena was issued [to] enforce this duty." Id. Moreover, Rule 45 (c) (3) (A) (iv) requires the court to protect individuals from undue burden imposed by the use of the subpoena power. In the instant case, plaintiffs posed reasonable requests on Marsh and Carville regarding his availability and these requests were ignored at every turn. Klaymans requests for documentation of Carvilles travel plans, the time he would be out of the country, and proof of when the trip was scheduled were largely left unanswered by Marsh. Klayman took every reasonable step to avoid undue burden on Carville short of turning the matter entirely over to Marsh and permitting her to schedule the deposition at her whim. The Federal Rules or Civil Procedure certainly do not contemplate the result Marsh seeks to reach in case.
As discussed, this court was not fully apprised of the extent of Carvilles availability until Marsh filed the Motion for Reconsideration on March 11, 1998. This motion states that Carville will be traveling in South America to meet with clients on the dates of March 16, 17, and 18. The motion also asserts that in January 1998 his staff "blocked out March 16, 17, and 18, 1998, on [his] schedule for [his] return trip to South America." Mot. for Recons. Ex. 2 at 2. The motion continues "[m]y staff did so, and we made the necessary travel arrangements and reservations for those dates." Id. On March 12, 1998, this court received the Reply of James Carville to plaintiffs opposition to the Motion for Reconsideration. This reply includes an itinerary and invoiced dated March 5, 1998 detailing the dates of Carvilles trip to South America with Carvilles ultimate location redacted. Perhaps it is mere coincidence that the date on the invoice is the same date as both this courts March 5, 1998 order directing the parties to attempt to reach agreement on a date for the deposition of Carville and the letters sent by Klayman to Marsh suggesting March 16, 17, or 18 as possible dates for the deposition. But given the fact that Carville and Marsh have been less than forthcoming with this court at all relevant times, the court will not give these parties the benefit of the doubt. Moreover, Carvilles flight to parts unknown does not depart from Miami International Airport until 10:15 p.m. on March 16, and neither he nor Marsh has made any showing as to why he could not be available to at least begin the deposition on March 16 especially when Klayman has offered to begin the deposition as early in the morning as necessary to accommodate Carville.
Furthermore, Klayman points to the deposition of George Stephanopoulos as demonstrating the possibility that plaintiffs will suffer immediate and irreparable harm as a result of delay in conducting discovery in this case. Klayman states that Stephanopoulos testified that "White House allies" were pursuing an "Ellen Rometach Strategy" which historically involved the use of FBI files to smear political adversaries. According to Klayman, Stephanopoulos also confirmed that Carville is a "White House ally."
Prior to the filing of the motion for reconsideration, Carville had ample opportunity to inform this court of the extent of his availability. The only conclusion that this court can draw from the actions of both Carville and Marsh is that these parties have sought to employ dilatory tactics in hopes of avoiding compliance with the subpoena and notice for deposition for the immediate future. This court granted Carvilles initial motion for a protective order filed on March 4, 1998 to permit Carville to attend the taping of a television program in California. At that time or any time thereafter, Carville or Marsh could have taken the opportunity to fully explain the extent of Carvilles availability. Carville and Marsh knew of Klaymans eagerness to depose Carville and yet all dates suggested by Carville and Marsh have been later rather than sooner. In light of the entire panoply of facts currently before the court, the only logical conclusion this court can reach is that Marsh and Carville sought to mislead this court from the outset and to delay this deposition. There is simply no other explanation as to why Marsh and Carville have not been completely forthcoming with the court from the outset of this unnecessary travail.
In sum, a motion for reconsideration is not appropriate if the movant merely attempts to have the court consider or revisit issues already addressed or hear new arguments or supporting facts that could have been presented by the movant originally. 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. The party must accept the consequences of its actions regardless of whether these consequences are caused by miscalculation, tactical error, or sloth. Improper use of motions 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).
Although this court is reluctant to punish Carville for the misconduct of his counsel, the Motion for Reconsideration must be denied. Disregard of this courts orders by any party will not be tolerated. While the court understands that a party may misinterpret an order in good faith, it is inappropriate for counsel to intimate that a court acted improperly simply because the party disagrees with the courts factual or legal conclusions.
For the reasons set forth herein, the Motion for Reconsideration filed by James Carville is DENIED. Carville is hereby ORDERED to appear for the deposition scheduled for March 16, 1998 at the time and location specified by plaintiffs.
Royce C. Lamberth
United States District Judge
1. As stated, Marsh subsequently indicated that Carville would be available for
deposition on March 24, 1998.
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