IN RE AUGUST, 1993 REGULAR GRAND JURY

• Decision Date: 10 May 1994
• Docket Number: Misc. No. 93-63. Grand Jury Subpoena No. KMS-41-02.
• Citation: 854 F. Supp. 1403
• Parties: In re the AUGUST, 1993 REGULAR GRAND JURY. (MEDICAL CORPORATION SUBPOENA I).
• Court: U.S. District Court — Southern District of Indiana

854 F. Supp. 1403

In re the AUGUST, 1993 REGULAR GRAND JURY. (MEDICAL CORPORATION SUBPOENA I).

Misc. No. 93-63. Grand Jury Subpoena No. KMS-41-02.

United States District Court, S.D. Indiana, Indianapolis Division.

May 10, 1994.

COPYRIGHT MATERIAL OMITTED

Richard L. Darst, Mantel Cohen Garelick Reiswerg & Fishmann, Indianapolis, IN, for Subpoenaed Medical Corp.

Kathleen M. Sweeney, Asst. U.S. Atty., Office of the U.S. Atty., Indianapolis, IN, for Government.

Entry Regarding United States' Supplemental Motion to Reconsider Court's Order Regarding Grand Jury Subpoena

TINDER, District Judge.

This is the second time issues surrounding the grand jury subpoena (No. KMS-41-02) of the Corporation¹ have been brought before this court. The first excursion was generated by the Corporation's Motion to Quash the subpoena, resulting in an order which denied the motion but modified the subpoena. See In re August, 1993 Grand Jury, 854 F.Supp. 1392, Entry Denying Mot. to Quash, Denying Mot. for Protective Order & Modifying Subpoena, Misc. No. 93-63 (S.D.Ind. Nov. 24, 1993) (hereinafter "Corporation Grand Jury I").² Modification was necessary because the subpoena sought materials protected by a psychotherapist-patient privilege, an evidentiary privilege with a rather stormy history but nonetheless applicable under the circumstances of this case. Though only a narrow category of information was to benefit from this privilege, the order did exempt — consistent with the scope of the privilege — the Corporation from disclosing "detailed patient histories and notes of counseling sessions which reflect confidential communications between the psychotherapist and patient. ..." Id. at 1397. Apparently dissatisfied with the ruling in Corporation Grand Jury I, the Government asks the court to reconsider that decision essentially because it believes the protected information is really necessary to continue its investigation and, presumably, to persuade the grand jury to indict the targets of the investigation.³ The Government's argument is fairly subject to two interpretations.⁴ Either it simply believes the court's previous decision, which balanced the need for the psychotherapist's notes with the need to protect the psychotherapist-patient relationship, struck the balance on the wrong side of the scales, or, alternatively, it might be arguing that the advent of "new" evidence commands the court to re-think the earlier modification. Which interpretation is precisely correct turns out to be of minor importance, for the Government cannot prevail under either because it fails to forward sufficient grounds to support a motion to reconsider.

Despite the Corporation's pleas to the contrary, motions to reconsider are not ill-founded step-children of the federal court's procedural arsenal, but rather effective yet quite circumscribed methods of "correcting manifest errors of law or fact or to present newly discovered evidence." Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.1987) (quoting Keene Corp. v. International Fidelity Ins. Co., 561 F.Supp. 656, 665-66 (N.D.Ill.1982), aff'd, 736 F.2d 388 (7th Cir.1984)), amended on other grounds, 835 F.2d 710 (7th Cir.1987). A third limited basis for granting a motion to reconsider, noted by this court in Fisher v. National R.R. Passenger Corp., 152 F.R.D. 145 (S.D.Ind.1993), concerns those situations in which the merits of an issue vital to the litigation were never addressed because of a litigant's non-culpable procedural default. Id. at 149. In this infrequently occurring instance, "where a previous error is the result of negligence or other non-culpable conduct, and when a motion involves important issues which may effect the outcome of a case ... the dispute is better decided on the merits than on procedural grounds." Id. Despite being appropriate in these three circumstances, motions to reconsider are extraordinary in nature and, because they run contrary to notions of finality and repose, should be discouraged. See United States v. All Assets & Equip. of West Side Bldg. Corp., 843 F.Supp. 377, 384-85 (N.D.Ill. 1994) ("Motions for reconsideration are not a matter of routine practice in this jurisdiction."). This disfavored status is due largely to the fact that reconsideration of past rulings competes with an equally important, and equally discretionary principle known as the "law of the case" doctrine. Simply put, this doctrine "merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power." Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912) (Holmes, J.). Some formulations of this doctrine express a quite limited set of circumstances in which a court can review prior decisions. E.g., Barrington Press, Inc. v. Morey, 816 F.2d 341, 343 n. 2 (7th Cir.) ("The law of the case doctrine precludes reconsideration of a matter already decided `unless one of three exceptional circumstances exists: the evidence in a subsequent trial was substantially different; controlling authority has since made a contrary decision of law applicable to such issues; or the decision was clearly erroneous, and would work a substantial injustice.'"), cert. denied sub. nom Morey v. Barrington Press, Inc., 484 U.S. 906, 108 S.Ct. 249, 98 L.Ed.2d 207 (1987). Other formulations appear a little less strict. E.g., Messinger, 225 U.S. at 444, 32 S.Ct. at 740; Johnson v. Burken, 930 F.2d 1202, 1207 (7th Cir.1991) ("A court will ordinarily not reconsider its own decision made at an earlier stage of the trial ... absent clear and convincing reasons to examine the prior ruling."). At bottom, however, a court is neither obligated nor foreclosed from reconsidering its prior decisions; instead, the principles underlying motions to reconsider and the law of the case doctrine must be meted out in the individual case to arrive at a proper exercise of the court's discretion. Cf. United States v. Mazak, 789 F.2d 580, 581 (7th Cir.1986) ("The doctrine of law of the case is flexible. ... It will not be enforced where doing so would produce an injustice."); Champaign-Urbana News Agency, Inc. v. J.L. Cummins News Co., 632 F.2d 680, 683 (7th Cir.1980) ("To modify the law of the case is primarily a matter of `good sense.'").

So, while a court can always take a second look at a prior decision, In re 949 Erie Street, 824 F.2d 538, 541 (7th Cir.1987) (interlocutory orders "may be changed by the district court at any time prior to final judgment."), it need not and should not do so in the vast majority of instances. There is a clear course for the Government to take to correct a court's errors relating to a grand jury subpoena — appeal. See 18 U.S.C.A. § 3731 (1988); In re Special Sept. 1978 Grand Jury, 640 F.2d 49, 55 (7th Cir.1980). Of course this court does not wish to encourage needless appeals on matters best and most quickly corrected in the district court, and, the court is quite cognizant of the need for timeliness and efficiency in resolving disputes surrounding grand jury proceedings. However, motions to reconsider which merely restyle or re-hash the initial issues are a needless drain on the court's resources. Except in three limited circumstances, all mentioned above but only two of which are raised and thus discussed below, this tactic is simply improper and should not be employed.

First, while motions to reconsider exist to correct manifest errors in law, they are "not appropriate vehicles to again advance arguments already rejected by the court." All Assets, 843 F.Supp. at 385. Foregoing a deep look into the merits of the Government's assignment of error to the previous decision — an allowable procedure in deciding whether to grant a motion to reconsider, Paganis v. Blonstein, 3 F.3d 1067, 1073 n. 7 (7th Cir.1993) — apparent from the outset is the Government's failure to propose argument or authority suggesting the Corporation Grand Jury I decision was replete with "manifest error of law." Publishers Resource, Inc., 762 F.2d at 561. Paramount in deciding whether to recognize a psychotherapist-patient privilege, or any evidentiary privilege for that matter, is a weighing of "the need for truth against the importance of the relationship or policy sought to be furthered by the privilege, and the likelihood that recognition of the privilege will in fact protect that relationship in the factual setting of the case." Memorial Hosp. v. Shadur, 664 F.2d 1058, 1061-62 (7th Cir.1981) (quoting Ryan v. Commissioner of Internal Revenue, 568 F.2d 531, 543 (7th Cir.), cert. denied, 439 U.S. 820, 99 S.Ct. 84, 58 L.Ed.2d 111 (1978)). The first entry involved just this sort of delicate balancing, assessed both the importance of the subpoenaed information and the psychotherapist-patient relationship, and ultimately determined the privilege should protect a narrow category of information composed of "detailed patient histories and notes of counseling sessions which reflect confidential communications between the psychotherapist and patient." Because it attributes great significance (or at least greater than the court assigned) to the information sought from the Corporation, the Government asks the court to re-strike this balance, to reweigh the competing interests (this time in its favor) and to confess error in the earlier decision.⁵ This simply asks too much in light of the paucity of support offered by the Government. A "manifest error in law" means more than a quibble over the proper application or interpretation of legal authority; it requires no less than a wholesale disregard, misapplication, or failure to recognize controlling precedent. And, to convince the court to reconsider a prior decision, the movant must adequately allege exactly this sort of failure. Having once thoroughly analyzed this problem, and lacking a compelling presentation by the Government indicative of a "manifest error in law," the costs of revisiting this matter...