Further, outside the context of Rule 60, the overwhelming weight of authority holds that the failure to exhaust all pertinent arguments in an original motion or opposition does not turn those late arguments into “newly discovered evidence.” Frederick S. Wyle Professional Corp. v. Texaco, Inc., 764 F.2d 604, 609 (9th Cir.1985) (evidence available to party before it filed its opposition was not “newly discovered evidence” warranting reconsideration). In fact, parties moving for reconsideration are “obliged
to show not only that this evidence was newly discovered or unknown to it until after the hearing, but also that it could not with reasonable diligence have discovered and produced such evidence at the hearing.” Engelhard Industries, Inc. v. Research Instrumental Corp., 324 F.2d 347, 352 (9th Cir.1963), cert. denied,
377 U.S. 923 (1964) (emphasis added). In Engelhard, the patentee lost a motion for summary judgment brought by the defendant which argued that the patent was invalid and had not been in French. Engelhard resisted the motion with the assistance of two affidavits. However, it lost the motion for summary judgment. Engelhard sought a rehearing which was denied and then appealed to the Ninth Circuit, which rejected the affidavit Engelhard had submitted at the rehearing.
In rejecting Engelhard's argument, the Ninth Circuit ruled: “On this appeal Engelhard has repeatedly referred to four other affidavits, asserting that they clearly show the existence of material issues of fact, thus manifesting the error of the trial court in rendering summary judgment. The difficulty with this argument is that these affidavits were not filed at or before the time fixed for the hearing on the motion for summary judgment.... They were tendered after that matter had been decided, with Engelhard's petition for rehearing, and were rejected. Since the petition was addressed to the discretion of the trial court ... Engelhard was obliged to show not only that this evidence was newly discovered or unknown to it until after the hearing, but also that it could not with reasonable diligence have discovered and produced such evidence at the hearing. But Engelhard made no showing of any kind. Indeed from our examination of three of the four affidavits ... it clearly appears that whatever facts they contain more readily available to and were known by Engelhard well in advance of the hearing.” At 352 [Citations omitted.]
Similarly, in the instant case, Respondent only offers evidence and argument he could have, and should have, made in his original opposition to Chevron's motion to compel. Respondent does not bring forward any newly discovered evidence, pertinent change in law, or any other good cause that would justify a motion for reconsideration. Thus, Respondent has failed to meet his obligation of demonstrating this is one of those “highly unusual circumstances” warranting reconsideration from the Court. See
Sch. Dist. No. 1J v. AC & S, Inc., supra, 5 F.3d 1255, 1263 (9th Cir.1993). In November 2010, Parties met and conferred on this issue for the first time. Thereafter, Chevron submitted its motion to compel discovery on November 30, 2010 [Doc. No. 93], Respondent submitted a “full-length” opposition on December 13, 2010 [Doc. No. 94], and Chevron replied to the opposition on December 20, 2010. [Doc. No. 97]. If Respondent took issue with Chevron's inferences, assumptions, and presentation of the facts, the time to object was either in his “full-length” opposition brief or in the nearly eight weeks between Chevron's reply and the Court's ultimate ruling. If these facts were as rotten and fraudulent as represented by Respondent, the time to object to them was in December 2010. However, Respondent did not meet his burden then, and he has not meet his burden now.