ORDER DENYING GOVERNMENT'S REQUEST FOR LEAVE TO FILE MOTION FOR RECONSIDERATION

Re: Dkt. No. 496

YVONNE GONZALEZ ROGERS, District Judge.

The government moves for leave to file a motion for reconsideration of the Court's March 11, 2015 Order, which held that "having ordered a competency hearing in the first instance, the defendant's interviews with the Court-appointed expert should be deemed `compelled' and therefore afforded heightened protections pursuant to Kastigar v. United States, 404 U.S. 441 (1972)." (Dkt. No. 304 at 1.)

Under Civil Local Rule 7-9, a party, before entry of final judgment, may move to file a motion for reconsideration of an interlocutory order. Civ. L.R. 7-9(a).1 Such motion must establish "reasonable diligence in bringing the motion" and one of the following: (1) a material difference in fact or law from that which was previously presented to the Court in connection with the challenged order and the challenging party, "in the exercise of reasonable diligence," was not aware of "such fact or law at the time of the interlocutory order"; (2) a new material fact or change in the law after the order issued; or (3) a "manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order." Civ. L.R. 7-9(b). Moreover, a motion for leave to file a motion for reconsideration shall not "repeat any oral or written argument made by the applying party in support of or in opposition to the interlocutory order which the party now seeks to have reconsidered." Civ. L.R. 7-9(c).

The government seeks reconsideration under the third prong listed above, namely that the earlier order constituted a "manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order." However, the basis for the request for reconsideration is a citation to a 2006 decision, People v. Pokovich, 39 Cal.4th 1240 (2006), which the government failed to present to the Court by the time of the order in question. The government states that Pokovich does not cite Kastigar, which "may somewhat explain but does not excuse the government's failure to identify Pokovich for the Court sooner." (Dkt. No. 496 at 9.)

The government has failed to establish that any of the three grounds warranting reconsideration applies in these circumstances. Under the first prong, the government fails to show reasonable diligence in earlier failing to present this authority. As the authority in question pre-dates the challenged order, the second prong is inapplicable. Finally, as to the third prong— the ground asserted by the government as the basis for its motion—the Pokovich case was not presented to the Court prior to its March 11, 2015 Order as required.

Even if the instant request was procedurally proper, the Court is not persuaded that the citation to Pokovich would have had any impact on its earlier conclusion. Pokovich addressed California's state "statutory scheme" for competency evaluations, holding statements in that context were not compelled where there was no threat of "any legal sanction against a defendant who refuses to speak to, or cooperate with, the court-appointed mental health experts." Pokovich, 39 Cal.4th at 1249. To the contrary, the Court in this case ordered the defendant's cooperation in his mental health evaluation. (See generally Dkt. No. 304.) His failure to cooperate very well may have subjected him to sanctions. As the Court previously noted, "California's framework differs fundamentally from the federal standard and consequently California's framework does not serve as a proper legal corollary." (Dkt. No. 304 at 8.)

The Court agrees that no Ninth Circuit case has addressed the issue. However, in conducting its own analysis, the Court has reviewed cases beyond the Ninth Circuit and has analogized to other procedural circumstances which implicate the constitutional rights of defendants facing criminal charges. Based on its analysis, the Court is not inclined to reconsider its ruling.2 While the government disagrees with the ruling, it has known the Court's view on the applicable standard since at least March 2015. The fact that the Court declined to order that the government employ a taint team did not and does not relieve the government of the requirements of Kastigar. As before, the Court's role is to articulate the constitutional burden where disagreement exists. The government's role is to satisfy it.

The request for leave to file a motion for reconsideration is DENIED. Briefing on the remaining grounds for the government's objection will remain on schedule.

This Order terminates Docket Number 496.

IT IS SO ORDERED.