The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Before the Court is Defendant Bodybuilding.com, LLC's Motion for Reconsideration of November 29, 2010 Order (Dkt. 231). Bodybuilding.com asks the Court to reconsider its decision directing Bodybuilding.com to disclose the identity of the pseudonymous poster known as "INGENIUM." For the reasons set forth below, Bodybuilding.com has convinced the Court that it incorrectly ordered Bodybuilding.com to disclose INGENIUM's identity.
A motion to reconsider an interlocutory ruling requires an analysis of two important principles: (1) error must be corrected; and (2) judicial efficiency demands forward progress. The former principle has led courts to hold that a denial of a motion to dismiss or for summary judgment may be reconsidered at any time before final judgment. Preaseau v. Prudential Insurance Co., 591 F.2d 74, 79-80 (9th Cir. 1979). While even an interlocutory decision becomes the "law of the case," it is not necessarily carved in stone. Justice Oliver Wendell Holmes concluded that the "law of the case" doctrine "merely expresses the practice of courts generally torefuse to reopen what has been decided, not a limit to their power." Messinger v. Anderson, 225 U.S. 436, 444 (1912). "The only sensible thing for a trial court to do is to set itself right as soon as possible when convinced that the law of the case is erroneous. There is no need to await reversal." In re Airport Car Rental Antitrust Litigation, 521 F.Supp. 568, 572 (N.D.Cal. 1981)(Schwartzer, J.).
The need to be right, however, must be balanced with the need for forward progress. A court's opinions "are not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure." Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D.Ill.1988). "Courts have distilled various grounds for reconsideration of prior rulings into three major grounds for justifying reconsideration:
(1) an intervening change in controlling law; (2) the availability of new evidence or an expanded factual record; and (3) need to correct a clear error or to prevent manifest injustice." Louen v Twedt, 2007 WL 915226 (E.D.Cal. March 26, 2007). If the motion to reconsider does not fall within one of these three categories, it must be denied.
1. Bodybuilding.com's Former Counsel Had No Authority to Commit Disclosing INGENIUM's Identity.
During a hearing on November 10, 2010, Bodybuilding.com's former counsel stated: So in direct answer to your question, [Plaintiffs are] seeking the identity of a number of users and posters, not just INGENIUM. And that's where we draw the line. We have objected to many of the discovery requests and said, "We will give it to you about INGENIUM, but not anybody else." That's an issue for the Ninth Circuit.
Hrg. Tr. at 30:6-12, Dkt. 229. The Court understood from this statement that Bodybuilding.com would agree to disclose INGENIUM's identity to Plaintiffs.
Bodybuilding.com has since retained new counsel, and Bodybuilding.com now states that the comments by former counsel in the November 2010 hearing were wholly unauthorized. In addition, Bodybuilding.com argues that neither Bodybuilding.com had authority to waive INGENIUM's First Amendment right to speak anonymously.
The Court will not compel Bodybuilding.com to disclose INGENIUM's identity based on its former counsel's equivocal statement. Former counsel did not outright state that Bodybuilding.com would disclose INGENIUM's identity. More importantly, as Bodybuilding.com points out, there is nothing in the record to demonstrate that INGENIUM knowingly and voluntarily waived his or her First Amendment rights. Leonard v. Clark, 12 F.3d 885, 889-90 (9th Cir. 1993) (noting that waiver of First Amendment rights must be knowing, voluntary and intelligent). Therefore, the ...