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DeEspana v. American Bureau of Shipping

January 24, 2007

REINO DE ESPANA, PLAINTIFF,
v.
AMERICAN BUREAU OF SHIPPING, ET AL., DEFENDANTS.



The opinion of the court was delivered by: The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge

OPINION AND ORDER

I. INTRODUCTION

Reino de Espana ("Spain") brings this action, arising from the casualty of the Prestige off the coast of Spain on November 19, 2002, against American Bureau of Shipping, ABS Group of Companies, Inc., and ABS Consulting, Inc. (collectively, "ABS"). Spain is seeking reconsideration of this Court's Opinion and Order dated November 2, 2006 ("Opinion and Order"), granting ABS's Motion to Compel disclosure of records concerning email communications during the period of November 12-20, 2002 (the "Casualty Period"), and records of the Permanent Commission for the Investigation of Marine Accidents ("Permanent Commission"). Spain also requests an adjournment of the briefing schedule set forth in the Opinion and Order. For the reasons stated below, Spain's motion for reconsideration is DENIED.

II. STANDARD FOR RECONSIDERATION

Spain may move for reconsideration of the Opinion and Order on the basis of "mistake, inadvertence, surprise, or excusable neglect." Rule 60(b)(1), Federal Rules of Civil Procedure. Reconsideration is merited if Spain can "demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion." Shamis v. Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999). The matters must "reasonably be expected to alter the conclusion reached by the court." Davidson v. Scully, 175 F. Supp. 2d 458, 461 (S.D.N.Y. 2001). "Local Rule 6.3 is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the court." Id.

III. DISCUSSION

Spain sets forth a number of grounds as bases for its motion to reconsider: 1) the Court's Opinion and Order that Spain produce an addendum should be corrected to order production of the underlying documents of the expert authors of the addendum; 2) Spain should be afforded an opportunity to search for emails not accessible through conventional means in order to satisfy the Court's order to produce; 3) the Court should reconsider its finding that Spain failed to offer evidence concerning the individuals and emails listed in ABS's January 3, 2005 letter; 4) the Court's credibility finding of David Alonso-Mencia ("Alonso-Mencia") is clearly erroneous and based on a mischaracterization of his testimony; 5) the number of emails produced far exceeded the Court's finding; and 6) the Court should determine when a litigation hold should have been established based on governing law. Plaintiff Reino de Espana's Memorandum in Support of Motion for Reconsideration of this Court's Opinion and Order dated November 2, 2006 ("Spain's Mem.").

A. Order to Produce Underlying Documents of the Expert Authors of the "Addendum"

Spain asks the Court to correct its Opinion and Order insofar as it orders Spain to produce technical reports known as the Addendum to the Permanent Commission Report ("Addendum") because Spain produced the Addendum in 2005, and has, in accordance with the Opinion and Order, produced the underlying documents of the Addendum. Spain's Mem. at 7. ABS maintains that to the extent the Opinion and Order suggests that the Addendum has not been produced, the point is not material, therefore, reconsideration is not warranted. Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Reconsideration of this Court's Opinion and Order Dated November 2, 2006 ("ABS's Opp.") at 20.

The Court finds that to the extent the Opinion and Order may have ordered the production of documents already produced, this is not a matter that would "reasonably be expected to alter the conclusion reached by the court" that these documents should be produced, Davidson, 172 F. Supp. 2d at 461, and, therefore, reconsideration is not warranted. The issue, of course, may be considered on the question of sanctions.

B. Reconsideration of Rulings Regarding Email Production

1. Spain's Request for Opportunity to Search for Emails Not Accessible Through Conventional Means

Spain argues for reconsideration of this Court's finding that missing emails are likely lost and that a further search for emails would be futile. Id. It contends that it should now be afforded an opportunity to search for emails not accessible through conventional means. Id. In support of this contention, Spain maintains that it has not previously agreed to undertake any forensic search for emails and was never ordered to produce emails beyond those found on computers. Id. at 7-8. Spain claims that ABS's motion for sanctions is premature because the Court promised them an opportunity to offer evidence on the preservation and spoliation issues at the evidentiary hearing held on February 9-10, 2006. Plaintiff Reino de Espana's Reply Memorandum in Further Support of Motion for Reconsideration of this Court's Order Dated November 2, 2006 ("Spain's Reply") at 2. It contends that its understanding of the evidentiary hearing was that the Court would hear testimony on the nature of Spain's email systems and their usage in the Prestige incident, and that Spain had reserved the right to brief the issue of adequate preservation of emails at a later date. Id. at 8, 12.

Prior to the hearing, the Court stated that it would not preclude evidence of preservation at the hearing. Spain's Mem. at 12. Indeed, both parties were given the opportunity to brief the preservation issue, along with any other issues presented during the evidentiary hearing. Spain presented some arguments on the preservation issues, ...


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