*1 THIS MATTER is before the Court on Defendant Vitality Works, Inc.’s Motion to Reconsider Order Granting in Part and Denying in Part Plaintiff's First Motion to Compel (Discovery Relating to Property/Wealth and Punitive Damages), Filed November 5, 2019. Doc. 45. Plaintiff filed a Response on November 19, 2019. Doc. 47. Defendant filed a Reply on December 3, 2019. Doc. 54. Having reviewed the parties’ submissions and the relevant law, the Court finds that Defendant's Motion to Reconsider is well taken in part and is GRANTED IN PART only to the extent it clarifies the Court's prior Order.

This case arises from Plaintiff's allegations that one or both Defendants violated Title VII of the Civil Rights Act, the Family Medical Leave Act, the American With Disabilities Act, the Age Discrimination in Employment Act, and the New Mexico Human Rights Act during the course of and when they terminated Plaintiff's employment. Doc. 27 at 2. Plaintiff also alleges Defendants preemptively and retaliatorily discharged her before she could exercise her rights under the Family Medical Leave Act. Id., Doc. 4 at 16-17.

On October 16, 2019, this Court entered an Order Granting in Part and Denying in Part Plaintiff's First Motion to Compel. Doc. 38. At issue here is the Court's ruling regarding Plaintiff's Request for Production No. 13. In Request for Production No. 13, Plaintiff sought “copies of business tax returns and financial statements for Vitality Works for each of the last three years.” Doc. 27-1 at 10. Defendant responded:

Id. at 11. Plaintiff argued that Defendant Vitality Works’ financial information is relevant to her claim for punitive damages. Doc. 27 at 16-17. Defendant Vitality Works contended that its current net worth at the time of trial may be relevant to a viable claim of punitive damages, but not its tax returns, and suggested that a statement of its net worth be produced at the time of trial if any viable claims for punitive damages remain in the case at that time. Doc. 28 at 8. In her Reply, Plaintiff argued that a simple production of a figure of net worth “does not allow for any analysis or impeachment of Vitality Works’ assessment of its ‘net worth’,” and that tax returns generated in the normal course of business to gauge financial status for three years prevents Vitality Works from cherry-picking the figures. Doc. 35 at 9.

*2 The Court, having determined that Plaintiff's claim for punitive damages was not spurious and that Plaintiff's request for financial information was relevant and proportional to the needs of the case, ordered Defendants to produce audited financial statements for the years 2017 and 2018. The Court further ordered that if no audited financial statements were available that Defendants produce its tax returns for 2017 and 2018. Doc. 38 at 12-13.

In its Motion for Reconsideration, Defendant reargues that only its net worth at the time of trial is relevant to Plaintiff's punitive damages claims. Doc. 45 at 2. Defendant argues that requiring it to produce multiple years of tax returns would cause jury confusion, which it contends is not allowed. Id. at 4-5. Defendant also argues that its tax returns are not relevant to the subject matter of Plaintiff's claims and Plaintiff has shown no compelling need for them. Id. at 5-7. Lastly, Defendant argues that the broad scope of the Court's order will result in “substantial prejudice that cannot be cured by entry of a Confidentiality Order and will put confidential financial information in the hands of the Plaintiff that is unrelated to the issue of the company's net worth.” Id. at 2. In support, Defendant asserts that its financial statement and tax returns contain information well beyond net worth that relates to the operation of the company and “is a manual on the company's operations and profitability.” Id. Specifically, Defendant contends that the financial statements and tax returns include information on its “net sales, cost of goods sold as direct materials and direct labor, operating expenses, depreciation, debt, retained earnings, interest expense and other matters,” as well as “social security numbers, building and land value, line item deductions, a detailed cash flow analysis and inventory details.” Id. Defendant requests that the Court reconsider its order and fashion a ruling that provides information concerning current net worth but that also protects Vitality Works’ confidential business information. Id. at 8.

In support of its arguments, Defendant cites three opinions from this district all authored by retired Magistrate Judge Lorenzo Garcia, in which Judge Garcia consistently held that only evidence of a defendant's current net worth was relevant to a claim for punitive damages.[1] Doc. 45 at 4. Defendant also cites two state appellate court opinions to support its argument that production of multiple years of financial statements and tax returns will cause jury confusion which is contrary to law.[2] Id. Finally, Defendant cites cases to support its argument that tax returns are generally not discoverable and that they are not relevant here and that Plaintiff has shown no compelling need for them.[3] Id. at 5-6.

*3 In her Response, Plaintiff argues that because Defendant filed its motion pursuant to Rule 72(a), it is untimely and that Defendant has failed to establish that Magistrate Judge Robbenhaar abused his discretion in ordering Defendant to produce its tax returns.[4] Doc. 47 at 1-2. Plaintiff further argues that Defendant is attempting to improperly supplement the record and that Defendant Coven's affidavit should be disregarded. Id. at 2. Finally, Plaintiff contends that it is entitled to discovery of Defendant's net worth because it is relevant to Plaintiff's claim for punitive damages and to impeach Defendant at trial regarding its financial worth. Id. at 4.

In its Reply, Defendant restates its arguments and adds only that Vitality Works did not move for reconsideration pursuant to Rule 72(a), but that its motion is interlocutory and requests the Court reconsider its own order. Doc. 54 at 1-2.

The Federal Rules of Civil Procedure do not recognize motions for reconsideration. Computerized Thermal Imaging, Inc. v. Bloomberg, L.P., 312 F.3d 1292, 1296, n. 3 (10th Cir. 2002). Instead, a motion for reconsideration “may be construed in one of two ways: if filed within [28] days of the district court's entry of judgment, it is treated as a motion to alter or amend the judgment under Rule 59(e); if filed more than [28] days after entry of judgment, it is treated as a motion for relief from judgment under Rule 60(b).” Id. Additionally, however, the Court has discretion to reopen “every order short of a final decree.” Price v. Philpot, 420 F.3d 1158, 1167, n. 9 (10th Cir. 2005); see also Rule 54(b) (“[A]ny order or other decision, however designated that adjudicates fewer than all the claims or the rights and liability of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all of the claims and all the parties’ rights and liabilities.”). Authority to reconsider an interlocutory order, therefore, exists solely under Rule 54(b). The Tenth Circuit looks to Fed. R. Civ. P. 59(a) for guidance in addressing motions to reconsider interlocutory orders. Ankeney v. Zavaras, 524 F. App'x 454, 458 (10th Cir. 2013) (stating that in considering Rule 54(b) motion to reconsider, “court may look to the standard used to review a motion made pursuant to Federal Rule of Civil Procedure 59(e)”).

The Tenth Circuit has not cabined district courts’ discretion beyond what Rule 54(b) provides: “[D]istrict courts generally remain free to reconsider their earlier interlocutory orders.” Been v. O.K. Industries, Inc., 495 F.3d 1217, 1225 (10th Cir. 2007) (citing Harlow v. Children's Hosp., 432 F.3d 50, 55 (1st Cir. 2005); see also United States v. Smith, 389 944, 949 (9th Cir. 2004) (explaining that a district court may review its prior rulings so long as it retains jurisdiction over the case). In the Tenth Circuit, “law of the case doctrine has no bearing on the revising of interlocutory orders, even when a case has been reassigned from one judge to another.” Rimbert v. Eli Lilly & Co., 637 F.3d 1247, 1252 (10th Cir. 2011) (citations omitted). In short, a district court can select the standard of review for a motion to reconsider an interlocutory order. It can review the earlier ruling de novo and essentially reanalyze the earlier motion from scratch, it can review the ruling de novo but limit its review, it can require parties to establish one of the law-of-the-case grounds, or it can refuse to entertain motions to reconsider altogether. See Kruskal v. Martinez, 2019 WL 4673219, at *8 (D.N.M. Sept. 25, 2019).

*4 In analyzing motions to reconsider, the Court should restrict its review of a motion to reconsider a prior ruling in proportion to how thoroughly the earlier ruling addressed the specific findings or conclusions that the motion to reconsider challenges. Id. The court should consider the case's overall progress and posture, the motion for reconsideration's timeliness relative to the ruling that it challenges, and any direct evidence the parties may produce, and use those factors to assess the degree of reasonable reliance that the opposing party has placed in the court's prior ruling. Id. at *9. Finally, looking to Rule 59(e), the Court should grant relief if there is new intervening and controlling law, new evidence not available previously, or if there is a “need to correct clear error or prevent manifest injustice.” Id. (quoting Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). A motion to reconsider is not an opportunity “to revisit issues already addressed or advance arguments that could have been raised earlier.” United States v. Christy, 739 F.3d 534, 539 (10th Cir. 2014).

Here, Defendant is not asking the Court to reconsider a final judgment under Rule 59(a) or 60(b), nor did Defendant file its motion pursuant to Rule 72(a). Instead, Defendant asks this Court to reconsider an interlocutory order entered while the case is still proceeding toward a final judgment.

As an initial matter, the Defendant's Motion to Reconsider is timely. The Tenth Circuit looks to Fed. R. Civ. P. 59(e) for guidance in addressing motions to reconsider interlocutory orders. Ankeney, 524 F. App'x at 458. Pursuant to Rule 59(e), a motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment. Fed. R. Civ. P. 59(e). Defendant filed its Motion for Reconsideration 20 days after entry of the Court's Order Granting in Part and Denying in Part Plaintiff's First Motion to Compel. Doc. 45. As such, Defendant's Motion to Reconsider is timely.

The Court will not reconsider Defendant's arguments related to providing a statement of net worth at the time of trial because Defendant simply repeated the argument it made in its prior brief, which the Court rejected. See Doc. 38 at 13, n. 3. Nor will the Court consider Defendant's argument that producing “multiple” years of tax returns will create jury confusion. Here, the Court ordered Defendant to produce two years of financial statements or tax returns for the purpose of demonstrating its net worth. Further, Defendant has failed to demonstrate how this would confuse a jury, and the case law Defendant cited in support of its argument is inapplicable to the facts presented here.[5]

The Court also rejects Defendant's argument that its financial statements/tax returns are not relevant and that Plaintiff has shown no compelling need for them. To the contrary, as the Court previously found, Plaintiff has made a claim for punitive damages that is not spurious thereby making Defendant's financial condition relevant. Doc. 38 at 13. “[I]f a plaintiff has alleged sufficient facts to claim punitive damages against a defendant, information of the defendant's net worth or financial condition is relevant because it can be considered in determining punitive damages.” Roberts v. Shawnee Mission Ford, Inc., No. 01-2113-CM, 2002 WL 1162438, at *4, 2002 U.S. Dist. LEXIS 9525, at *10 (D. Kan. Feb. 7, 2002) (internal quotation marks omitted). The party requesting the discovery generally does not need to “establish a prima facie case on the issue of punitive damages before it can obtain pretrial discovery of the other party's financial statements and tax returns.” Id. 2002 WL 1162438, at *4, 2002 U.S. Dist. LEXIS 9525, at *10–11 (internal brackets omitted). “To discover a party's financial condition in light of a claim for punitive damages, requesting parties generally must show the claim for punitive damages is not spurious.” Id. (citation omitted). A claim is not spurious if “sufficient facts have been alleged to make a claim for punitive damages.” Krenning v. Hunter Health Clinic, Inc., 166 F.R.D. 33, 34 (D. Kan. 1996) (emphasis added). Further, Defendant has offered no evidence that its financial information is readily obtainable elsewhere.[6] As such, information demonstrating Defendant's financial worth must be produced pursuant to the Court's Order. See Philmar Dairy, LLC v. Armstrong Farms, 2019 WL 2006181, at *2-3 (D.N.M. May 7, 2019) (finding that net worth, wealth, or financial health is at issue in a punitive damages claim and that tax returns and income statements speak directly to those matters, and ordering defendant produce three years of financial information given that defendant was planning to go out of business); EEOC v. Roark-Whitten Hospitality 2, LP, 2017 WL 3575731, at 7-8 (D.N.M. Aug. 17, 2017) (finding defendant's financial information for all four of its hotels was relevant and proportional to plaintiff's claims of successor liability and punitive damages and ordering that it be produced); Montes v. Pinnacle Propane, L.L.C., 2016 WL 10179315, at *4 (D.N.M. Sept. 20, 2016) (finding plaintiff met his burden to show that defendant's net worth was relevant to his claim for punitive damages and ordering defendant to produce a statement of its net worth verified by a Certified Public Accountant); King v. Gilbreath, 2015 WL 12864201, at *5 (D.N.M. Feb. 27, 2015) (ordering defendant to produce documents sufficient to show defendant's current financial condition based on plaintiff's punitive damages claim); Barela v. Safeco Ins. Co. of America, 2014 WL 11497826, at *11-12 (D.N.M. Aug. 22, 2014) (finding that plaintiff's requests for financial information related to claim for punitive damages was relevant and ordered defendant to produce whatever financial statements were made publicly available regarding its net worth for two previous years); Allen v. Brown, 2014 WL 12787974, at *2 (D.N.M. Sept. 5, 2014) (finding plaintiff's request for financial records was relevant to plaintiff's claim for punitive damages and ordering defendant produce most recent tax returns); Martinez v. Southwest Cheese Company, L.L.C., 2013 WL 12180706, at *3 (D.N.M. March 28, 2013) (finding plaintiff was entitled to obtain relevant financial documents related to his claim for punitive damages and ordering defendant provide a calculation of total assets minus total liabilities); and Boyd v. Hi-Country Chevrolet, 2011 WL 13289889, at *2 (D.N.M. March 10, 2011) (finding that plaintiff should be able to discover evidence of defendant's financial condition given his punitive damages claim and ordering defendant produce a copy of his most recent tax return).

*5 That said, the Court will use this opportunity to clarify and be more specific regarding the extent of the production it intended in its Order. Kruskal, 2019 WL 4673219, at *8. In its Order, the Court ordered Defendant Vitality Works to produce audited financial statements for 2017 and 2018 only for the purpose of establishing its net worth to support Plaintiff's punitive damages claim. Doc. 38 at 13. See MidContinent Cabinetry, Inc. v. George Koch Sons, Inc., 130 F.R.D. 149, 152 (D.Kan. March 12, 1990) (explaining that the very purpose of discovery of net worth is to locate evidence to support a punitive damage claim). The Court included a footnote that described financial statements as a report “prepared by a company's management to present the financial performance and position at a point in time. A general-purpose set of financial statements usually includes a balance sheet, income statements, state of owner's equity, and statement of cash flows.” Id. at n. 4. The Court went on to say that if there were no financial statements, Defendant Vitality was ordered to produce its tax returns for 2017 and 2018. Id. at 13. In so doing, however, the Court did not intend that Defendant produce “a manual on the company's operations and profitability.” Thus, to the extent the parties construed the Court's Order as ordering anything more than a demonstration of Vitality Works’ net worth related to Plaintiff's claim for punitive damages, the Court will be more specific.

Defendant Vitality Works is ordered to produce financial statements or tax returns for the years 2017 and 2018 for the sole purpose of establishing its net worth for those years. An affidavit regarding Defendant Vitality Works’ net worth will not suffice, nor will a simple calculation of assets minus liabilities suffice. In other words, the financial statements must be produced in accordance with generally accepted accounting principles and standards and at a minimum include “balance sheet, income statements, state of owner's equity, and statement of cash flows.” Defendant Vitality Works may consult its internal accountant or external CPA regarding how to present and produce the financial information in such a way that complies with this Court's Order but does not go beyond the scope of what the Court has ordered. Further, the produced financial information must demonstrate an independent review, either by audit or verified by a certified public accountant.

Finally, the Court rejects Defendant's argument that the production of confidential and/or sensitive financial information cannot be cured by a Confidentiality Order. Defendant's bare concern, without more, is unfounded. When entering a confidentiality order, the parties agree to be bound by its terms or risk sanctions, including dismissal of their case, if they fail to do so. The Federal Rules of Civil Procedure authorize sanctions, including dismissal, for failing to appear at a pretrial or scheduling conference, see Fed. R. Civ. P. 16(f) and 37(b)(2)(C), and for failing to comply with court rules or any order of the court, see Fed. R. Civ. P. 41(b).” Gripe v. City of Enid, 312 F.3d 1184, 1188 (10th Cir.2002); accord Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir.2007) (“Rule 41(b) specifically authorizes a district court to dismiss an action for failing to comply with any aspect of the Federal Rules of Civil Procedure.”). Additionally, the Court need not remind counsel of their professional and ethical obligations to their clients, to their opposing counsel, and to the Court regarding the manner in which they conduct themselves and manage the information they possess throughout this litigation and beyond as deemed necessary and required.

Plaintiff is therefore ordered again to treat the information provided as confidential and directs the parties to the terms of its Protective Order wherein “financial information and/or financial documents of or relating to Vitality Works, Inc.” is defined as confidential information that is not be disclosed for any purpose except as prescribed in the Protective Order. Doc. 32 at 2.

IT IS THEREFORE ORDERED that Defendant's Motion to Reconsider is well taken and GRANTED IN PART only to the extent it clarifies and more specifically defines the Court's intent regarding the production of financial information related to Defendant Vitality Work's net worth as set forth in its Order Granting in Part and Denying In Part Plaintiff's First Motion to Compel (Doc. 38).

*6 IT IS FURTHER ORDERED Defendant produce financial statements or tax returns demonstrating its net worth for 2017 and 2018 within fourteen (14) days of this Order.