United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE
December 27, 2017, this Court entered a Memorandum Opinion
and Order granting, in part, and denying, in part,
Plaintiffs' Motion for Relief Related to Ford's
Discovery Misconduct. Johnson v. Ford, Civ. Act. No.
3:13-6529, 2017 WL 6614101 (S.D. W.Va. Dec. 27, 2017). In
that decision, the Court determined Ford misrepresented the
level of safeguards it provided its source code, resulting in
increased attorneys' fees and costs to Plaintiffs.
Id. at *10.
the Court held Plaintiffs were entitled to reimbursement for
those expenses. Ford now moves the Court to reconsider
that portion of the decision. ECF No. 1132. For the following
reasons, the Court DENIES Ford's motion.
as here, a party moves for reconsideration of an
interlocutory order pursuant to Rule 54(b) of the Federal
Rules of Civil Procedure, the district court has discretion
to revise such an order “at any time before the entry
of a judgment adjudicating all the claims[.]”
Fed.R.Civ.P. 54(b). Although the Fourth Circuit has not set
forth a precise standard for lower courts to follow under
Rule 54(b), it has stated that “Rule 54(b)'s
approach involves broader flexibility to revise
interlocutory orders before final judgment as the
litigation develops and new facts or arguments come to
light.” Carlson v. Boston Sci. Corp., 856 F.3d
320, 325 (4th Cir. 2017) (italics original) (citing Am.
Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505,
514-15 (4th Cir. 2003); Cobell v. Jewell, 802 F.3d
12, 25-26 (D.C. Cir. 2015)); Howard v. W.Va. Div. of
Corrs., No. 2:14-CV-13695, 2016 WL 958698, at *2 (S.D.
W.Va. Mar. 14, 2016) (“The Fourth Circuit has not
announced the appropriate standard of review for a motion for
reconsideration under Rule 54(b) in this Circuit, but has
stated that the power to amend interlocutory orders at any
time before final judgment is ‘committed to the
discretion of the district court.'” (quoting
Am. Canoe, 326 F.3d at 515; other citations
omitted)). However, the court's discretion is not
limitless and may be constrained when an interlocutory ruling
becomes the law of the case and “govern[s] the same
issues in subsequent stages in the same case.”
Id. (internal quotation marks and citations
the law of the case doctrine, the court may reconsider and
modify its interlocutory ruling in limited circumstances.
Ross v. Klesius, No. 16-2040, 2017 WL 4994785, at *2
(4th Cir. Oct. 25, 2017), cert. denied, No. 17-1032, 2018 WL
557429 (U.S. Feb. 26, 2018). Reconsideration may occur when
there is: “(1) ‘a subsequent trial produc[ing]
substantially different evidence'; (2) a change in
applicable law; or (3) clear error causing ‘manifest
injustice.'” Id. (quoting
Carlson, 856 F.3d at 325; other citations omitted)).
Nevertheless, relief is seldom appropriate “[w]hen the
motion raises no new arguments, but merely requests the
district court to reconsider a legal issue or to change its
mind[.]” Pritchard v. Wal-Mart Stores, Inc., 3
Fed.Appx. 52, 53 (4th Cir. 2001) (citation and internal
quotation marks omitted). Furthermore, although the law of
the case doctrine is ubiquitous, it cannot categorically bar
a court from reconsidering an earlier interlocutory order in
light of the court's “ultimate responsibility . . .
to reach the correct judgment under law.'” Am.
Canoe, 326 F.3d at 515.
motion, Ford hinges its arguments for reconsideration on the
“manifest injustice” prong. In support of its
position, however, Ford merely recycles many of the same
arguments it previously made and insists the Court must have
misunderstood them, or it surely would have ruled in
Ford's favor. The Court disagrees. The Court fully
understood Ford's arguments when it wrote the original
Memorandum Opinion and Order, discussed Ford's arguments
at length, and soundly rejected them.
reconsideration, Ford insists that it did not intend to imply
that it never allowed the source code to leave a Ford
facility. Nevertheless, the record contradicts this
assertion. On May 28, 2015, the Magistrate Judge held a
hearing regarding production of the source code. Tr.
of Proceedings, (May 28, 2015), ECF No. 531. In
discussing whether the source code should be produced in
“native” or “write access” format,
counsel for Ford stated:
The Ford ETC source code has never been produced, ever,
never, ever been produced in the format that
the plaintiffs are requesting to anyone. Not
suppliers, not third-party suppliers, no one.
When there is an issue . . . people come into Ford and review
it the same way that we have offered to provide it to the
plaintiffs. They get to read it, they get to search it, and
they get to look at it. That's how it's been proposed
before, and that's how Ford has always done it. It's
not unique. It's not new. It's not different.
Id. at 13 (emphasis added). Ford insists this
statement is true because it never produced the source code
in a format that was editable. However, as this Court
detailed in its Memorandum Opinion and Order,
“Ford's attempt to draw a distinction between
native and flat file source code is nonsensical with respect
to confidentiality concerns.” Johnson, 2017 WL
6614101, at *5. The source code attached to the emails was
“written in a plain ASCII text” and “[a]s
such, [a] normal text editor such as Notepad can read,
modify, and write any line of code in the bookshelf file. It
is not in ‘read ...