The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge
On November 18, 2005, Plaintiff made two oral motions for
reconsideration of prior court orders. First, Plaintiff asks the
court to reconsider its prior ruling of April 12, 2005 that
various documents were protected by Defendants' attorney-client
privilege (See Doc. 71) and to rule that Defendants have waived
their attorney-client privilege by testifying on multiple
occasions that they acted on the advice of their legal counsel.
Second, Plaintiff moves for reconsideration of the court's prior
ruling in its summary judgment order of October 12, 2005 that
Plaintiff may not raise a First Amendment retaliation claim.
(See Doc. at 19 n. 10.) The court heard oral argument regarding
Plaintiff's motions for reconsideration on November 18, 2005, and
the matter is ripe for disposition. For the following reasons,
the court will deny Plaintiff's motions. I. Attorney-Client Privilege
The court will deny Plaintiff's motion to reconsider its prior
ruling on attorney-client privilege. In its April 12, 2005
ruling, the court found that the Defendants did not assert the
defense of advice of counsel and consequently did not waive their
attorney-client privilege. Plaintiff has offered no new arguments
to support her position that Defendants have waived the
privilege; Plaintiff continues to rely on Defendants' bare
assertions that they at times relied upon advice of their legal
counsel. However, Defendants have not asserted advice of counsel
as a defense. Moreover, the court explicitly stated in its
November 17, 2005 Memorandum and Order (Doc. 156) that
Defendants' identification of counsel who provided legal advice
could not, on its own, be construed as a waiver of the
attorney-client privilege. Accordingly, the court finds that
there is no reason to reconsider its prior rulings and
Plaintiff's motion for reconsideration is denied.
II. First Amendment Retaliation Claim
In its order of October 12, 2005, the court stated that
Plaintiff failed to raise a First Amendment retaliation claim in
her Second Amended Complaint and would not be permitted to do so
for the first time at the summary judgment stage of the
proceedings. However, Plaintiff's counsel again seeks leave to
amend, arguing now that such amendment will conform Plaintiff's
Second Amended Complaint to the proceedings. Federal Rule of
Civil Procedure 15(b) provides that "[w]hen issues not raised by
the pleadings are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had
been raised in the pleadings." Fed.R.Civ.P. 15(b). At oral argument on November 18, 2005, Plaintiff's counsel
indicated that "ample evidence" had been presented throughout the
trial to permit amendment of the Second Amended Complaint to
conform to the proceedings. However, Plaintiff's counsel neither
specifically identified, nor is the court aware of, any witnesses
or testimony that would indicate the express or implied consent
of the parties to try the issue of First Amendment retaliation.
Therefore, the court denies Plaintiff's motion to reconsider its
IT IS HEREBY ORDERED THAT:
1. Plaintiff's oral motion to reconsider the court's prior
ruling on the attorney-client privilege is DENIED.
2. Defendants have not waived the attorney-client privilege by
asserting that they relied upon the advice of their legal
3. Plaintiff's oral motion to reconsider the court's prior
ruling and to conform the Second Amended Complaint to the
proceedings is DENIED.
4. Plaintiff may not amend the Second Amended Complaint in
order to assert a First Amendment retaliation claim.
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