The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff's Motion to Reconsider the December 14, 2011 Order directing it to turn over all documents on its privilege log. For the following reasons, the motion is granted.
This case is the consolidation of two patent infringement cases regarding oxygen absorbers or "scavengers" which are placed in packages holding raw red meat to remove oxygen and keep the meat fresh longer. At issue are seven of Plaintiff's patents and two of Defendant's patents. Plaintiff's infringement claims are stayed while its patents are re-examined. The Plaintiff's contract claim and Defendant's counterclaims continue. The Court granted Defendant summary judgment on the breach of contract claim.
While discovery in nearly all patent litigation is contentious, the two parties in this case have been exceptionally cantankerous. Plaintiff Pactiv has repeatedly accused Defendant Multisorb of stalling and delay tactics; Defendant has repeatedly accused Plaintiff of using this litigation to discover its trade secret scavenger formulas. The Court counts at least fifteen (15) Motions for Protective Orders or to Compel. The Motion at issue here is Multisorb's Motion to Compel production by Pactiv of documents listed on its privilege log. [ECF No. 248]. The Court heard this Motion, as well as a Cross-Motion by Pactiv to compel production of final infringement contentions and to compel deposition of a witness. The Court granted all of the motions.
Pactiv filed a Motion to Reconsider the motion to compel production of documents on its privilege log.
A motion to reconsider is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion. Caisse Nationale De Credit Agricole v. CBI Indus., 90 F.3d 1264, 1270 (7th Cir. 1996). Rather, reconsideration is appropriate only after a manifest error of law or apprehension of fact by the Court. Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191.
A. The Motion to Reconsider
The Court finds there was a misapprehension of fact in the rendering of its December 15, 2011 oral ruling given after a hearing on the motion. Although it was mentioned during the hearing, lost in the din of the squabbling parties was the fact that the parties did not meet and confer before the motion to compel was filed. See Hr'g Tr.; ECF No. 262, PageID 5497; see also FED. R. CIV. P. 37(a)(1).
Multisorb avers that it had several meet-and-confers over this issue, but it appears uncontested that, after Pactiv's most recent submission to Multisorb of its revised privilege list, there was no meet-and-confer over the insufficiency of that privilege list. See Decl. of Jennifer Friedman, ECF No. 250, 2-3 (documenting a last meet-and-confer of September 27, 2011, prior to Pactiv's submission to Multisorb of a revised privilege list on October 29, 2011). Multisorb contends another meet-and-confer was not necessary in light of prior meetings over the privilege list. That argument is not without logic. But the Court also notes there is some merit to Pactiv's argument that Multisorb may have been motivated to file the motion prematurely to muddy the waters on Pactiv's motions to compel deposition and production of overdue infringement contentions.
In any event, the meet-and-confer was not held, and the motion to reconsider is granted.
B. Privilege Log Contents
That does not end the inquiry, however. The parties raised other issues regarding deviation from the Rules of Civil Procedure and privilege of requested documents. First ...