MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Plaintiffs' Motion for a Scheduling Conference, filed March 31, 2015 (Doc. 279)("Motion"). The Court held a hearing on May 12, 2015. The primary issues are: (i) whether the Court should reopen discovery on issues relevant only to class certification; and (ii) whether the Court should set a scheduling conference to establish deadlines applicable to the remainder of this case. As to the first issue, the Court will not reopen class certification discovery, because the Plaintiffs had a full and fair opportunity to develop evidence supporting their class certification evidence in the first round of discovery, and because reopening discovery at this stage would prejudice the Defendants and needlessly delay the case's progress. As to the second issue, the Court will set a status conference for June 2, 2015 at 9:00 a.m., for the purpose of planning the merits discovery, pre-trial, and trial stages of the named Plaintiffs' case. The Court will, however, vacate that hearing if the Plaintiffs file a motion to reconsider before that date.

FACTUAL BACKGROUND

The Court has summarized the Plaintiffs' factual allegations on numerous occasions, see Memorandum Opinion at 5-9, filed June 28, 2013 (Doc. 108); Memorandum Opinion and Order at 2-6, filed May 16, 2014 (Doc. 246); Memorandum Opinion at 3-6, filed May 26, 2015 (Doc. 284), and has even made extensive — albeit tentative — factual findings for the purposes of deciding whether to certify this case as a class action, see Memorandum Opinion and Order at 3-75, filed March 19, 2015 (Doc. 278)("Class Certification MOO"). This case is a proposed class action on behalf of landowners who executed long-term leases with the Defendants. See Fourth Amended Complaint for Underpayment of Oil and Gas Royalties ¶ 26, at 10-12, filed September 27, 2013 (Doc. 129)("Complaint"). The leases, which were executed, for the most part, in the 1940s, allow the Defendants to drill for natural gas on the Plaintiffs' land in exchange for a royalty payment — usually one-eighth of the proceeds from sale. See Complaint ¶ 26, at 10-12. The Plaintiffs contend that the Defendants have been underpaying the royalties in a number of ways1 — most notably by paying royalty on natural-gas liquids at the same price per MMBtu2 that they pay for natural gas, which is a cheaper product — since time immemorial, and they are seeking damages for this underpayment going back to 1985. See Complaint ¶ 33, at 14.

The named Plaintiffs are individuals and trusts owned by individuals with no in-depth knowledge of the oil-and-gas industry, although their levels of oil-and-gas sophistication, of course, vary from Plaintiff to Plaintiff. Owing to the age of the leases, no Plaintiff personally executed the lease that now pays his or its royalty; rather, all of the named Plaintiffs inherited their royalty interests. See Complaint ¶ 26, at 10-12. The only consistent information3 that the Plaintiffs receive regarding their royalties are their monthly check stubs, which contain figures — broken down by well, for those Plaintiffs who own royalty interests in more than one well — for the total "price," "quantity," "value," "deductions," and "net [proceeds]" of all gas recovered from the Plaintiff's well over that payment period, and the "interest," "paid int[erest]," "value," "deductions," and "net share" of the Plaintiff's royalty. E.g., Check Stubs of James H. Anderson Living Trust (dated over numerous years), filed with the Court during the class certification proceedings as Plaintiffs' Ex. 1. See Complaint ¶¶ 86-87, at 26-27; id. ¶ 95, at 28-29. The Plaintiffs also receive the actual checks, which contain only the final dollar figure of the royalty payout for that payment period. See, e.g., Check Stubs of James H. Anderson Living Trust at 1-2.

PROCEDURAL BACKGROUND

The Plaintiffs filed their case in state court on October 20, 2011, see Anderson Living Trust v. Williams Prod. Co., D-117-CV-2011-00511 (1st Jud. Dist. Ct., Cnty. of Rio Arriba, State of N.M.)(Raphaelson, J.), and the Defendants removed the case to federal court on January 12, 2012, see Notice of Removal, filed January 12, 2012 (Doc. 1), invoking federal subject-matter jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d). Upon removal, the Court bifurcated discovery in the case into a class certification phase and a merits phase, which were to be separated by a class certification hearing. See Scheduling Order, filed August 17, 2012 (Doc. 65). The Court set "the termination date for class certification discovery [on] April 1, 2013," and stated that "discovery shall not be reopened, nor shall case management deadlines be modified, except . . . upon a showing of good cause." Scheduling Order at 1. The Court later pushed this deadline back to December 5, 2013, and reaffirmed its earlier warning that "discovery shall not be reopened" after that date. Amended Scheduling Order at 1, filed October 2, 2013 (Doc. 133). See Order Granting Joint Motion to Modify Scheduling Order, filed January 3, 2013 (Doc. 81).

The Court held its class certification hearing in the Spring of 2014, holding the first three days on March 10, 11, and 12, and the last two days on April 3 and 4. See Class Certification MOO at 1. On March 19, 2015, the Court issued its Class Certification MOO denying class certification on commonality, see Fed. R. Civ. P. 23(a)(2), and predominance, see Fed. R. Civ. P. 23(b)(3), grounds, see Class Certification MOO at 283. The Court concluded that textual variations among the class members' leases destroyed any possibility of class treatment. See Class Certification MOO at 2. The Court pointed out that the Plaintiffs had particularly failed to carry their burden vis-à-vis the overriding-royalty interests, as the Plaintiffs' expert witness had testified at the hearing that they were all different from one another; additionally, the Plaintiffs did not even obtain in discovery many of the assignments giving rise to these interests. See Class Certification MOO at ¶ 43, at 10; id. at 232 n.80.

The Plaintiffs filed the Motion on March 31, 2015. The Motion is a relatively lean document with roughly two pages of content, and it requests that the Court set a scheduling conference to discuss "establish[ing] a discovery and hearing schedule," through which they can obtain "additional discovery related to the production characteristics of the class wells" — in particular, the class overriding-royalty interests. Motion ¶¶ 3, 4, at 2. The Defendants responded seventeen days later, noting that, while they do not oppose a scheduling conference for the limited purpose of planning discovery and trial on the named Plaintiffs' claims, they do oppose reopening discovery on class certification issues, i.e., issues that relate to absent class members. See Defendants' Response to Plaintiffs' Motion for Scheduling Conference at 1 & n.1, filed April 17, 2015 (Doc. 280)("Response"). They assert that Smith v. United States, 834 F.2d 166 (10th Cir. 1987)("Smith"), sets forth the United States Court of Appeals for the Tenth Circuit's test for reopening discovery and that the Plaintiffs' request fails to satisfy that test. See Response at 2.

The Defendants argue that Smith sets forth six factors that the Court must assess when deciding whether to reopen discovery: (i) whether trial is imminent; (ii) whether the request is opposed; (iii) whether reopening discover would prejudice the non-moving party; (iv) whether the moving party was diligent in obtaining discovery within the guidelines that the Court established; (v) the foreseeability of the need for additional discovery in light of the amount of time that the Court allocated for discovery in the first instance; and (vi) the likelihood that the requested discovery will uncover relevant evidence. See Response at 10 (citing Smith, 834 F.2d at 169). The Defendants argue that none of these factors cuts in favor of reopening discovery. See Response at 10. As to the first factor, the Defendants substitute "class certification" for "trial," and note that "the class certification hearing is beyond imminent — it is over." Response at 10. The Defendants win the second factor, of course, merely by virtue of opposing the Motion, and, as to the third factor, they state that they would be prejudiced both by the additional delay in the trial and by the new discovery impositions — many of which, the Defendants assert, would be repetitive of demands with which they have already complied. See Response at 10-11. The Defendants also assert that discovery compliance "disrupt[ed]" their business the first time, as its "personnel spent weeks identifying, pulling, segregating, isolating and indexing the company's files." Response at 10. They also point out that their discovery-related legal fees are not limited to their trial counsel, Holland & Hart, LLP, but include specific discovery counsel, Hall Estill Hardwick P.C. See Response at 11. The Defendants address the fourth and fifth factors together, contending that the "Plaintiffs were well aware of the significance of the content of the leases and assignments to class certification analysis by reason of the Tenth Circuit's decision in Wallace v. Roderick Revocable Living Trust v. XTO Energy, Inc., 725 F.3d 1213 (10th Cir. 2013)[("Roderick")]."4 Response at 11. The Defendants assert that they "informed Plaintiffs and the Court of the labor-intensive and time-consuming task of searching for and locating the lease assignments creating the overriding royalty interests subject to the class claims," and the Plaintiffs opted not to spend the time and money necessary to obtain the assignments. Response at 11. The Defendants also state that they made all the assignments they had in their possession available to the Plaintiffs for review, but the Plaintiffs declined the review any of the New Mexico assignments.5 See Response at 6-9, 11. The Defendants also assert that, "[w]ith one exception early in 2012, at no point did Plaintiffs state they needed any additional time, let alone additional discovery." Response at 3. As to the sixth factor, the Defendants twist the factor slightly, interpreting "relevant evidence" as, basically, evidence likely to change the Court's mind about certification. See Response at 12. The Defendants assert that the variations in royalty-provision terminology among the class make certification impossible, and that obtaining hardcopies of the assignments will not change the Court's analysis. See Response at 12.

In addition to the Smith factors, the Defendants also analyze the Motion under the general rule 16 "good cause" standard for modifying a scheduling order. Response at 12-15. They argue, generally, that good cause is based on the Plaintiffs' diligence, and that "nothing in Plaintiffs' motion shows that anything they propose to do now could not have been done within the deadlines set in the Amended Scheduling Order through diligent efforts." Response at 13.

The Court held a hearing on May 12, 2015. See Transcript of Hearing (taken May 12, 2015)("Tr.").6 At the hearing, the Plaintiffs clarified that the primary purpose of their request to reopen discovery was to obtain proposed class members' assignments from various public sources, including the New Mexico State Land Office, the federal Bureau of Land Management, and several county clerks' offices. See Tr. at 3:9-9:15 (Brickell); id. at 35:15-25 (Sutphin). They stated that they had based their presentation at the class certification hearing on an implied-covenant-to-market theory, which would not require separate treatment of the different lease forms, and that "that is why [they] had not, prior to this time, done as careful a job and as good a job as we could have done to analyze the individual lease language, as well as go to" the Bureau of Land Management to obtain the assignments. Tr. at 12:1-8 (Brickell). The Plaintiffs stated that they did not know how long it would take to complete all the discovery they request, but that 120 days should suffice. See Tr. at 12:9-15 (Brickell).

The Defendants strenuously opposed the Motion, first arguing that the Plaintiffs had blindsided them with their requests. See Tr. at 12:25-13:10 (Sutphin). The Defendants contended that they came to the hearing with no more information than was in the Motion itself, and that, before the hearing began, the Plaintiffs had provided them with a "handout" page or packet containing "extensive information" about their discovery plan,7 leaving the Defendants flat-footed and unable to respond effectively. Tr. at 14:10-18 (Sutphin). The Defendants stated:

Tr. at 14:23-15:5 (Sutphin).

The Plaintiffs also argued that the Court had blindsided them in its reasoning in the Class Certification MOO and that they needed additional class certification discovery to handle the Court's unexpected approach:

Tr. at 22:21-25:25 (Court, Sutphin, Brickell). The Defendants responded to this line of argument as follows:

Tr. at 26:13-28:23 (Sutphin).

The Court asked what the process was after a Court denies class certification, i.e., do the Plaintiffs get another bite at the certification apple and, if so, under what circumstances. See Tr. at 18:20-19:10 (Court). The Defendants responded that the Plaintiffs would have to move the Court, pursuant to rule 59(e), to reconsider its denial; they argued that, in the Tenth Circuit, Servants of the Paraclete v. Does, 204 F.3d 1005 (10th Cir. 2000), governs such motions. See Tr. at 20:6-21:4 (Sheridan). The Defendants stated that the Court had been "quite clear on what it did with the plaintiffs' implied duty to market claim and why it was doing it," and that this claim "has been dismissed not once, but twice[:] . . . in the Court's June 2013 memorandum opinion[;] . . . [and on] May 16, 2014" — after the Plaintiffs had "retooled" their claim as one for breach of the implied covenant to market, rather than for breach of the marketable-condition rule. Tr. at 23:12-14 (Sutphin); id. at 26:17-25 (Sutphin). The Defendants asked the Court to set up a discovery plan for going forward with the named Plaintiffs' case only and, additionally, asked the Court to set a settlement conference. See Tr. at 33:20-34:17 (Sutphin, Court). The Defendants did not advance a specific timeframe for the remaining discovery and pre-trial work, but stated that it "[sh]ouldn't be too extensive"; when pressed, they offered "90 to 120 days." Tr. at 34:18-35:5 (Sutphin).

The Plaintiffs stated that they were not exactly sure what standard the Court should use in reassessing its denial of class certification, but stated that they believed it was routine for the Courts of Appeals to reverse a grant of class certification with instructions for the district court to conduct an entirely new analysis. See Tr. at 46:14-47:1 (Court, Brickell). The Court stated that "that's not where we are," because this case has not come down from a Tenth Circuit reversal, but, rather, is on the Court's own denial of certification. Tr. at 47:2-15 (Court). When pressed, the Plaintiffs conceded that they did not know what standard the Court should apply. See Tr. at 47:16-48:9 (Brickell)("Your Honor, anything I would say right now, without doing a little more research on it, would be pure speculation.").

The Plaintiffs also stated that they could get the majority of what they wanted — the class assignments — without formal discovery, simply by making requests with local public authorities. See Tr. at 43:23-44:13 (Court, Brickell). They stated, however, that they still wanted to reopen formal discovery and to obtain "a schedule from the Court that allows [them] to do some additional class certification discovery" — most notably, on developing parol evidence to show the meaning of some class leases. Tr. at 44:18-46:2 (Brickell).

The Court concluded the hearing as follows:

Tr. at 48:14-49:25. The parties agreed to the Court's proposal. See Tr. at 50:1-2 (Court, Brickell); id. at 51:1-3 (Court, Sutphin).

Thirteen days after the hearing, the Plaintiffs filed a Notice of Anticipated Filing of Motion to Reconsider, filed May 26, 2015 (Doc. 285)("Notice"). The Notice is one-page long, and it states:

Notice at 1 (citations omitted).

LAW REGARDING THE MODIFICATION OF SCHEDULING ORDERS

"The District Court has wide discretion in its regulation of pretrial matters." Si-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1514 (10th Cir. 1990). Scheduling orders, however, "may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). Accord Street v. Curry Bd. of Cnty. Comm'rs, No. CIV 06-0776 JB/KBM, 2008 WL 2397671, at *6 (D.N.M. Jan. 30, 2008)(Browning, J.). The advisory committee notes to rule 16 observe:

Fed. R. Civ. P. 16(b)(4) advisory committee's note to the 1983 amendment.

The Tenth Circuit has held that the concepts of good cause, excusable neglect, and diligence are related. "The Tenth Circuit . . . has recognized the interrelation between `excusable neglect' and `good cause.'" Pulsecard, Inc. v. Discover Card Servs. Inc., 168 F.R.D. 295, 301 (D. Kan. 1996)(citing In re Kirkland, 86 F.3d 172, 175 (10th Cir. 1996)). "Properly construed, `good cause' means that scheduling deadlines cannot be met despite a party's diligent efforts." Street v. Curry Bd. of Cnty. Comm'rs, 2008 WL 2397671, at *6. See Advanced Optics Elecs., Inc. v. Robins, 769 F.Supp.2d 1285, 1313 (D.N.M. 2010)(Browning, J.)(noting that the "rule 16(b) good-cause inquiry focuses on the diligence of the party seeking [to] amend the scheduling order."). In In re Kirkland, the Tenth Circuit dealt with the definition of "good cause" in the context of a predecessor to modern rule 4(m) of the Federal Rules of Civil Procedure8 and noted:

86 F.3d at 175 (emphasis in original)(quoting Putnam v. Morris, 833 F.2d 903, 905 (10th Cir. 1987))(internal quotation marks omitted). The Tenth Circuit explained that Putnam v. Morris "thus recognized that the two standards, although interrelated, are not identical and that `good cause' requires a greater showing than `excusable neglect.'" In re Kirkland, 86 F.3d at 175.

Where a party is diligent in its discovery efforts and nevertheless cannot comply with the scheduling order, the Court has found good cause to modify the scheduling order if the requesting party timely brings forward its request. In Advanced Optics Electronics, Inc. v. Robins, the Court found that, where the defendant did not conduct discovery or make any good-faith discovery requests, and where the defendant did not make efforts "diligent or otherwise" to conduct discovery, the defendant did not, therefore, show good cause to modify the scheduling order. 769 F. Supp. 2d at 1313 n.8. In Street v. Curry Board of County Commissioners, however, the Court found that the plaintiff had "shown good cause for a delay in seeking leave to amend," because she "was diligent in pursuing discovery . . . [and] brought to the Court's attention her identification of an additional claim in a timely manner," where she discovered the claim through "documents provided in discovery." 2008 WL 2397671, at *11. In Montoya v. Sheldon, No. CIV 10-0360 JB/WDS, 2012 WL 5353493 (D.N.M. Oct. 7, 2012)(Browning, J.), the Court did not find good cause to modify the scheduling order and reopen discovery, and refused to grant the plaintiffs' request do so, where the plaintiffs' excuse for not disclosing their expert before the close of discovery was that they thought that the case would settle and they would thus not require expert testimony. See 2012 WL 5353493, at *14. The Court noted:

2012 WL 5353493, at *14.

In Scull v. Management and Training Corp., 2012 WL 1596962 (D.N.M. May 2, 2012)(Browning, J.), the Court did not grant a plaintiff's request for an extension of time to name an expert witness against a defendant, when the plaintiff asserted that he had waited to name an expert witness until a second defendant joined the case, because, before the second defendant entered the case, a scheduling order was in effect and the plaintiff should have known that he would need to name an expert witness against the defendant already in the case. See 2012 WL 1596962, at *8. The Court determined that the plaintiff was seeking "relief from his own disregard" for the deadline. 2012 WL 1596962, at *8. "Despite his knowledge that [Defendant] PNA had yet to enter the case, [Plaintiff] Scull chose to allow the deadline to pass without naming expert witnesses against [Defendant] MTC." 2012 WL 1596962, at *8. Regarding the defendant who entered the case at a later date, however, the Court allowed the plaintiff an extension of time to name an expert witness, because it "was not unreasonable for Scull to expect a new deadline to name expert witnesses upon PNA's entrance into the case because he had not yet had the opportunity to engage in discovery against PNA as he had against MTC." 2012 WL 1596962, at *9. The Court also noted that not naming an expert witness "is a high price to pay for missing a deadline that was arguably unrealistic when it was set," as Scull could not have determined the need for an expert witness until after PNA entered the case. 2012 WL 1596962, at *9.

In Stark-Romero v. National Railroad Passenger Co (AMTRAK), 275 F.R.D. 544 (D.N.M. 2011)(Browning, J.), the Court found that a lawyer had shown excusable neglect when his reason for missing a scheduling deadline was that, soon after his son's wedding, his father-in-law developed a tumor in his chest and the lawyer handled arranging his father-in-law's medical care, and only after the lawyer returned to his work did he realize that a deadline passed. See 275 F.R.D. 549-50. The Court noted that the lawyer could have avoided missing the deadline had he not left his work until the last minute, just before his son's wedding, but found that the lawyer had demonstrated good faith and missed the deadline because of "life crises," and not because of his own inadvertence. 275 F.R.D. 549-550. In West v. New Mexico Taxation and Revenue Department, No. CIV 09-0631 JB/CEG, 2010 WL 3834341 (D.N.M. July 29, 2010)(Browning, J.), the Court allowed a plaintiff extended time to file a response to a defendant's motion for summary judgment, in part because of the difficulty the plaintiff's counsel experienced attempting to obtain depositions with certain defense witnesses, and thus it was not her fault, and in part because cross-motions on summary judgment are particularly helpful for the Court:

2010 WL 3834341, at *4-5. On the other hand, in Liles v. Washington Tru Solutions, LLC, No. CIV 06-854 JB/CEG, 2007 WL 2298440 (D.N.M. June 13, 2007)(Browning, J.), the Court denied a plaintiff's request for additional time to respond to a defendant's motion for summary judgment, when the only rationale the plaintiff provided was that its counsel's "family and medical emergencies" precluded the plaintiff from timely responding. 2007 WL 2298440, at *2.

LAW REGARDING DISCOVERY

Rule 34 of the Federal Rules of Civil Procedure govern discovery requests for tangible objects. See Fed. R. Civ. P. 34. Rule 34(a) states:

A party may serve on any other party a request within the scope of Rule 26(b):

Fed. R. Civ. P. 34(a). Rule 26(b)(1) explains that the proper scope of discovery is "any nonprivileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). Information sought is relevant "if the discovery appears reasonably calculated to lead to discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). Federal courts have held that the scope of discovery under rule 26 is broad. See Gomez v. Martin Marrietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995); Sanchez v. Matta, 229 F.R.D. 649, 654 (D.N.M. 2004)(Browning, J.) ("The federal courts have held that the scope of discovery should be broadly and liberally construed to achieve the full disclosure of all potentially relevant information."). The federal discovery rules reflect the courts' and Congress' recognition that "mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." Hickman v. Taylor, 329 U.S. 495, 507 (1947). As a result of this policy, rule 26 "contemplates discovery into any matter that bears on or that reasonably could lead to other matter that could bear on any issue that is or may be raised in a case." Anaya v. CBS Broad., Inc., 251 F.R.D. 645, 649-50 (D.N.M. 2007)(Browning, J.)(internal quotations marks omitted).

A district court is not, however, "required to permit plaintiff to engage in a `fishing expedition' in the hope of supporting his claim." McGee v. Hayes, 43 F. App'x 214, 217 (10th Cir. 2002)(unpublished).9 "`Discovery . . . is not intended to be a fishing expedition, but rather is meant to allow the parties to flesh out allegations for which they initially have at least a modicum of objective support.'" Rivera v. DJO, LLC, No. CIV 11-1119 JB/RHS, 2012 WL 3860744, at *1 (D.N.M. Aug. 27, 2012)(Browning, J.)(quoting Tottenham v. Trans World Gaming Corp., No. CIV 00-7697 WK, 2002 WL 1967023, at *2 (S.D.N.Y. June 21, 2002)(Knapp, J.)). See Hardrick v. Legal Servs. Corp., 96 F.R.D. 617, 618 (D.D.C. 1983)(noting that courts do, and should, remain concerned about "fishing expeditions, discovery abuse and inordinate expense involved in overbroad and far-ranging discovery requests")(internal quotation marks omitted). "[B]road discovery is not without limits and the trial court is given wide discretion in balancing the needs and rights of both plaintiff and defendant." Gomez v. Martin Marietta Corp., 50 F.3d at 1520 (internal quotation marks omitted).

Courts have recognized that, while it is true that relevancy in discovery is broader than that required for admissibility at trial, "the object of inquiry must have some evidentiary value before an order to compel disclosure of otherwise inadmissible material will issue." Zenith Elecs. Corp. v. Exzec, Inc., No. CIV 93-5041 BMM, 1998 WL 9181, at *2 (N.D. Ill. Jan. 5, 1998). Courts have also recognized that "[t]he legal tenet that relevancy in the discovery context is broader than in the context of admissibility should not be misapplied so as to allow fishing expeditions in discovery." Zenith Elecs. Corp. v. Exzec, Inc., 1998 WL 9181, at *2 (internal quotation marks omitted).

Rule 26(b)(1) was amended in 2000. Before the 2000 amendments, rule 26(b)(1) defined the scope of discovery as follows:

Fed. R. Civ. P. 26(b)(1)(1996). The 2000 amendments made the following changes, shown here in redline form with the deleted language stricken and the added material underlined:

Fed. R. Civ. P. 26(b)(1). Putting aside the changes to the last sentence — which the advisory committee's notes make clear was a housekeeping amendment to clarify that inadmissible evidence must still be relevant to be discoverable — the 2000 amendments have two effects: (i) they narrow the substantive scope of discovery in the first sentence; and (ii) they inject courts into the process in the entirely new second sentence.

Fed. R. Civ. P. 26 advisory committee's notes (emphasis added).

One gets the impression from reading the advisory committee's notes that the amendment was not intended to exclude a delineable swath of material so much as it is intended to send a signal to district judges to become more hands-on in the process of regulating — mostly limiting — discovery on relevance grounds alone. The "two effects" of the 2000 amendments might, thus, be only one effect: directing district judges to roll up their sleeves and manage discovery, and to do so on the basis of relevance. The change in substantive scope from "subject matter" to "claim or defense" would, therefore, seem to exist more to "add teeth" to the relevance standard than to effectuate a substantive narrowing. It is not surprising that Congress would want to increase judicial presence: "relevance" is a wide-open concept even in the context of trial, see Fed. R. Evid. 401 ("Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action."), and it is often said that relevance for discovery is an even broader concept. One might then say that the old rule 26(b)(1)'s relevant-discovery provision was toothless. It is likewise unsurprising that the rulemakers are unable to articulate precise language narrowing the substantive scope of discovery: no single general rule can adequately take into account the infinite number of possible permutations of different claims, defenses, parties, attorneys, resources of parties and attorneys, information asymmetries, amounts in controversy, availabilities of information by other means, etc. The determination requires the individualized judgment of someone on the scene, and that presence is what the rulemakers wanted when they: (i) encouraged district judges to take a firmer grasp on the scope of discovery; and (ii) put their thumbs on the scale in favor of narrower discovery in the rule's definition of the scope of discovery.

Of course, courts should also seek to give substantive content to amendments. Read literally, the rule does not permit parties to discover information relevant only to the claim or defense of another party; they must use discovery only to investigate their own claims and defenses. More problematically, however, the rule may prohibit using the Federal Rules' compulsory discovery process to obtain "background" information not specifically relevant to any one claim or defense — e.g., a plaintiff naming a pharmaceutical company as a defendant and then using discovery to educate itself generally about medicine, biochemistry, and the drug industry by using the defendant's expertise.

In In re Cooper Tire and Rubber Co., 568 F.3d 1180 (10th Cir. 2009), the Tenth Circuit clarified that the 2000 Amendments to rule 26 "implemented a two-tiered discovery process; the first tier being attorney-managed discovery of information relevant to any claim or defense of a party, and the second being court-managed discovery that can include information relevant to the subject matter of the action." 568 F.3d at 1188. The Tenth Circuit further stated that,

568 F.3d at 1188-89 (quoting the advisory committee's notes to the 2000 amendments to Fed. R. Civ. P. 26(b)(1))(citations omitted)(footnote omitted)(alteration in original).

LAW REGARDING MOTIONS TO ALTER OR AMEND THE JUDGMENT UNDER RULE 59(e)

Rule 59(e) provides: "A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment." Rule 60 provides in relevant part:

Fed. R. Civ. P. 60(b)-(c). The Tenth Circuit has recognized:

Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005). The time limit in rule 59(e) is now twenty-eight days rather than ten days. See Fed. R. Civ. P. 59(e).

A motion for reconsideration under rule 59(e) is an "inappropriate vehicle[] to reargue an issue previously addressed by the court when the motion merely advances new arguments, or supporting facts which were available at the time of the original motion." Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). "Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice." Servants of Paraclete v. Does, 204 F.3d at 1012. "Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law." Servants of Paraclete v. Does, 204 F.3d at 1012. A district court has considerable discretion in ruling on a motion to reconsider under rule 59(e). See Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997).

Rule 60 authorizes a district court to, "[o]n motion and just terms[,] . . . relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons," including "any other reason that justifies relief." Fed. R. Civ. P. 60(b). A court cannot enlarge the time for filing a rule 59(e) motion. See Brock v. Citizens Bank of Clovis, 841 F.2d 344, 347 (10th Cir. 1988)(holding that district courts lack jurisdiction over untimely rule 59(e) motions); Plant Oil Powered Diesel Fuel Sys., Inc. v. ExxonMobil Corp., No. CIV 11-0103, 2012 WL 869000, at *2 (D.N.M. Mar. 8, 2012)(Browning, J.)("The Court may not extend the time period for timely filing motions under Rule 59(e). . . ."). "A motion under rule 59 that is filed more than 28 days after entry of judgment may be treated as a Rule 60(b) motion for relief from judgment." 12 James Wm. Moore et al., Moore's Federal Practice § 59.11[4][b], at 59-32 (3d ed. 2012)(citations omitted). Nevertheless, a court will not generally treat an untimely rule 59(e) motion as a rule 60(b) motion when the party is seeking "reconsideration of matters properly encompassed in a decision on the merits' contemplated by Rule 59(e)." Jennings v. Rivers, 394 F.3d 850, 854 (10th Cir. 2005).

Under some circumstances, a party can rely on rule 60(b)(1) to rectify a mistake by his or her attorney, or when their attorney acted without the party's authority. See Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999)("Rule 60(b)(1) motions premised upon mistake are intended to provide relief to a party . . . when the party has made an excusable litigation mistake or an attorney has acted without authority. . . ."). Mistake in this context entails either acting without the client's consent or making a litigation mistake, such as failing to file or comply with deadlines. See Yapp v. Excel Corp., 186 F.3d at 1231. If the alleged incident entails a mistake, then it must be excusable, meaning that the party was not at fault. See Pioneer Inv. Servs. v. Brunswick Assocs. LP, 507 U.S. 380, 394 (1993)("This leaves, of course, the Rule's requirement that the party's neglect be `excusable.'"); Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th Cir. 1996)("If the mistake alleged is a party's litigation mistake, we have declined to grant relief under Rule 60(b)(1) when the mistake was the result of a deliberate and counseled decision by the party."); Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1146 (10th Cir. 1990)(holding attorney carelessness is not a basis for relief under Rule 60(b)(1)).

Courts will not grant relief when the mistake of which the movant complains is the result of an attorney's deliberate litigation tactics. See Cashner v. Freedom Stores, Inc., 98 F.3d at 577. This rule exists because a party

Pioneer Inv. Servs. v. Brunswick Assocs. LP, 507 U.S. at 397 (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962))(internal quotation marks omitted). The Tenth Circuit has held that there is nothing "novel" about "the harshness of penalizing [a client] for his attorney's conduct" and has noted that those "who act through agents are customarily bound," even though, when "an attorney is poorly prepared to cross-examine an expert witness, the client suffers the consequences." Gripe v. City of Enid, Okla., 312 F.3d 1184, 1189 (10th Cir. 2002). The Court has previously stated:

Wilson v. Jara, No. 10-0797, 2012 WL 1684595, at *7 (D.N.M. May 10, 2012)(Browning, J.).10

Rule 60(b)(6) is a "grand reservoir of equitable power to do justice in a particular case." Van Skiver v. United States, 952 F.2d 1241, 1244 (10th Cir. 1991)(internal quotation marks omitted). "If the reasons offered for relief from judgment could be considered under one of the more specific clauses of Rule 60(b)(1)-(5), those reasons will not justify relief under Rule 60(b)(6)." Moore, supra § 60.48[2], at 60-182. Accord Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 n.11 (1988)("This logic, of course, extends beyond clause (1) and suggests that clause (6) and clauses (1) through (5) are mutually exclusive."). "The Rule does not particularize the factors that justify relief, but we have previously noted that it provides courts with authority `adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice,' while also cautioning that it should only be applied in `extraordinary circumstances.'" Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. at 863. Generally, the situation must be one beyond the control of the party requesting relief under rule 60(b)(6) to warrant relief. See Ackermann v. United States, 340 U.S. 193, 202 (1950)("The comparison [of prior precedent] strikingly points up the difference between no choice and choice; imprisonment and freedom of action; no trial and trial; no counsel and counsel; no chance for negligence and inexcusable negligence. Subsection 6 of Rule 60(b) has no application to the situation of petitioner."). Legal error that provides a basis for relief under rule 60(b)(6) must be extraordinary, as the Tenth Circuit discussed in Van Skiver v. United States:

952 F.2d at 1244-45.

LAW REGARDING MOTIONS TO RECONSIDER AND THE APPLICATION OF LAW-OF-THE-CASE DOCTRINE TO INTERLOCUTORY ORDERS AT THE DISTRICT COURT LEVEL

Considerable confusion exists among the bar regarding the proper standard for a district court to apply when ruling on a motion to reconsider one of its prior "interlocutory" or "interim" orders, i.e., an order that a district court issues while the case is ongoing, as distinguished from a final judgment. This confusion originates from the fact that the Federal Rules of Civil Procedure — the normal starting point for figuring out how to use various procedural devices in the federal courts — do not mention motions to reconsider, let alone set forth a specific procedure for filing them or a standard for analyzing them. A loose conflation in terminology in Servants of the Paraclete v. Does, which refers to rule 59(e) motions — "motion[s] to alter or amend a judgment" — as "motions to reconsider,"11 compounded that baseline confusion. Fed. R. Civ. P. 59(e) (emphasis added); Servants of the Paraclete v. Does, 204 F.3d 1005 passim.

Final judgments are different from interlocutory orders. See Fed. R. Civ. P. 54(a) ("`Judgment' as used in these rules includes a decree and any order from which an appeal lies." (emphasis added)). In addition to ripening the case for appeal, see 28 U.S.C. § 1291 ("The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts. . . ."), the entry of final judgment narrows the district court's formerly plenary jurisdiction over the case to: (i) for the first twenty-eight days after the entry of judgment, motions under rules 50(b), 52(b), 59, and 60 — the district court's jurisdiction, while limited, trumps that of the Court of Appeals during this time period, and, even if a party files a notice of appeal, the Court of Appeals will wait until after the district court has ruled on the post-judgment motion to touch the case, see Fed. R. App. P. 4(a)(4)(B); (ii) after twenty-eight days, if a party has filed a notice of appeal, motions under rule 60 — the Court of Appeals' jurisdiction trumps the district court's during this period, and the district court needs the Court of Appeals' permission even to grant a rule 60 motion;12 and (iii) after twenty-eight days, if no party has filed a notice of appeal, motions under rule 60.

Final judgments implicate two important concerns militating against giving district courts free reign to reconsider their judgments. First, when a case is not appealed, there is an interest in finality. The parties and the lawyers expect to go home,13 quit obsessing about the dispute, and put the case behind them, and the final judgment — especially once the twenty-eight day window of robust district court review and the thirty-day window of appeal have both closed — is the disposition upon which they are entitled to rely. Second, when a case is appealed, there is the need for a clean jurisdictional handoff from the district court to the Court of Appeals. "[A] federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously," as doing so produces a "danger [that] a district court and a court of appeals w[ill] be simultaneously analyzing the same judgment." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58-59 (1982). The Court of Appeals needs a fixed record on which to base its decisions — especially given the collaborative nature of appellate decisionmaking — and working with a fixed record requires getting some elbow room from the district court's continued interference with the case. The "touchstone document" for this jurisdictional handoff is the notice of appeal, not the final judgment, see Griggs v. Provident Consumer Discount Co., 459 U.S. at 58 ("The filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." (citations omitted)); Garcia v. Burlington N. R.R. Co., 818 F.2d 713, 721 (10th Cir. 1987)("Filing a timely notice of appeal pursuant to Fed. R. App. P. 3 transfers the matter from the district court to the court of appeals. The district court is thus divested of jurisdiction. Any subsequent action by it is null and void." (citations omitted)); Kirtland v. J. Ray McDermott & Co., 568 F.2d 1166, 1170 (5th Cir. 1978)("[I]t is the filing of the appeal, not the entering of a final judgment, that divests the district court of jurisdiction." (citations omitted)), but, because the final judgment starts the parties' thirty-day clock for filing a timely notice of appeal, the Federal Rules and the Tenth Circuit have chosen to curtail the district court's jurisdiction over the case in the roughly month-long period of potentially overlapping trial- and appellate-court jurisdiction that immediately follows the entry of final judgment, see Servants of the Paraclete v. Does, 204 F.3d at 1009 (noting that post-final judgment motions at the district court level are "not intended to be a substitute for direct appeal"). Basically, rather than suddenly divesting the district court of all jurisdiction over the case — potentially resulting in the district court being unable to rectify easily fixable problems with the final judgment before the case goes to the Tenth Circuit, or even requiring appeal of a case that might otherwise not need to be appealed — the Federal Rules set forth a jurisdiction phased de-escalation process, wherein the district court goes from pre-final judgment plenary jurisdiction, to limited review for the first twenty-eight days post-final judgment, and, finally, to solely rule 60 review after twenty-eight days. In defining the "limited review" that rule 59(e) allows a district court to conduct in the 28-day flux period, the Tenth Circuit, in Servants of the Paraclete v. Does, incorporated traditional law-of-the-case grounds — the same grounds that inform whether a court should depart from an appellate court's prior decision in the same case — into rule 59(e). See United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998)("[W]e will depart from the law of the case doctrine in three exceptionally narrow circumstances: (1) when the evidence in a subsequent trial is substantially different; (2) when controlling authority has subsequently made a contrary decision of the law applicable to such issues; or (3) when the decision was clearly erroneous and would work a manifest injustice." (citation omitted)); Servants of the Paraclete v. Does, 204 F.3d at 1012 (incorporating those grounds into rule 59(e)).

Neither of these concerns — finality or jurisdictional overlap — is implicated when a district court reconsiders one of its own interlocutory orders. The Federal Rules do not specifically mention motions to reconsider interlocutory orders, but rule 54(b) makes the following open-ended proclamation about their mutability:

Fed. R. Civ. P. 54(b) (emphases added). Rule 54(b) thus (i) provides that a district court can freely reconsider its prior rulings; and (ii) puts no limit or governing standard on the district court's ability to do so, other than that it must do so "before the entry of judgment." Fed. R. Civ. P. 54(b).

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. Indus., 495 F.3d at 1225. In the Tenth Circuit, "law of the case doctrine has no bearing on the revisiting of interlocutory orders, even when a case has been reassigned from one judge to another." Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1252 (10th Cir. 2011)(emphasis added)(citing Been v. O.K. Indus., Inc., 495 F.3d at 1225). In this context, "the doctrine is merely a `presumption, one whose strength varies with the circumstances.'" Been v. O.K. Indus., Inc., 495 F.3d at 1225 (quoting Avitia v. Metro. Club of Chi., Inc., 49 F.3d 1219, 1227 (7th Cir. 1995)). In short, a district court can use whatever standard it wants to review 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.

The best approach, in the Court's eyes, is to analyze motions to reconsider differently depending on three factors. Cf. Been v. O.K. Indus., Inc., 495 F.3d at 1225 ("[T]he doctrine is merely a `presumption, one whose strength varies with the circumstances.'" (citation omitted)). First, 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. How "thoroughly" a point was addressed depends both on the amount of time and energy the Court spent on it, and on the amount of time and energy the parties spent on it — in briefing and orally arguing the issue, but especially if they developed evidence on the issue. A movant for reconsideration thus faces a steeper uphill challenge when the prior ruling was on a criminal suppression motion, class certification motion, or preliminary injunction,14 than when the prior ruling is, e.g., a short discovery ruling. The Court should also look, not to the overall thoroughness of the prior ruling, but to the thoroughness with which the Court addressed the exact point or points that the motion to reconsider challenges. A movant for reconsideration thus faces an easier task when he or she files a targeted, narrow-in-scope motion asking the Court to reconsider a small, discrete portion of its prior ruling than when he or she files a broad motion to reconsider that rehashes the same arguments from the first motion, and essentially asks the Court to grant the movant a mulligan on its earlier failure to present persuasive argument and evidence.

Second, the Court should consider the case's overall progress and posture, the motion for reconsideration's timeliness relative to the ruling it challenges, and any direct evidence the parties may produce, and use those factors to assess the degree of reasonable reliance the opposing party has placed in the Court's prior ruling. See 18B Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Vikram David Amar, Richard D. Freer, Helen Hershkoff, Joan E. Steinman & Catherine T. Struve, Federal Practice & Procedure § 4478.1 (2d ed.)("Stability becomes increasingly important as the proceeding nears final disposition. . . . Reopening should be permitted, however, only on terms that protect against reliance on the earlier ruling."). For example, if a defendant (i) spends tens of thousands of dollars removing legacy computer hardware from long-term storage; then (ii) obtains a protective order in which the Court decides that the defendant need not produce the hardware in discovery; then (iii) returns the hardware to long-term storage, sustaining thousands more in expenses; and (iv) several months pass, then the plaintiffs should face a higher burden in moving the Court to reconsider its prior ruling that they faced in fighting the motion for protective order the first time.

Third, the Court should consider the Servants of the Paraclete v. Does grounds. The Court should be more inclined to grant motions for reconsideration if the movant presents (i) new controlling authority — especially if the new authority overrules prior law or sets forth an entirely new analytical framework; (ii) new evidence — especially if the movant has a good reason why the evidence was not presented the first time around; or (iii) a clear indication — one that manifests itself without the need for in-depth analysis or review of the facts — that the Court erred.

These three factors should influence the degree to which the Court restricts its review of a prior ruling, but they do not necessarily mean that the Court should always apply a deferential standard of review. The Court should pause before applying a standard of review to its own interlocutory orders that is more deferential than the standard that the Court of Appeals will apply to it, unless the Court concludes that the alleged error in the prior ruling was harmless, or the party moving for reconsideration waived their right to appeal the alleged error by not raising the appropriate argument. Even in circumstances where the Court concludes that it is insulated from reversal on appeal, there are principled reasons for applying a de novo standard. After all, if the Court was wrong in its earlier decision, then, generally speaking, it is unjust to maintain that result — although the Court should weigh this injustice against any injustice that would result from upending the parties' reliance on the earlier ruling, which is the balancing test that the three factors above represent.

What the Court means by "restricting its review" is less about applying a deferential standard of review — although that may be appropriate in some circumstances — and more about reducing (i) the depth of the Court's analysis the second time around — thus conserving judicial resources; and (ii) the impositions that relitigation of the prior ruling will impose on the party opposing the motion for reconsideration. The Court should consider the time and expense that the party opposing reconsideration spent in winning the earlier ruling, and should try to prevent that party from having to bear the same impositions again. Basically, even if the Court ultimately analyzes a motion to reconsider under the same standard that it analyzed the motion that produces the earlier ruling, it should analyze the motion in a different way — one focused on reducing the litigation burdens of the party opposing reconsideration. For example, when a party moves the Court for a preliminary injunction, standard practice is that the Court holds an evidentiary hearing as a matter of course, regardless whether it looks as if the party has a good chance of prevailing. If the party loses and the Court denies the injunction, however, and the party moves for reconsideration, the party should not be entitled to the presumption of an evidentiary hearing merely because he or she received that presumption the first time the Court considered the motion.

In light of these statements, it is perhaps better to characterize the increased burden that a movant for reconsideration faces as one of production, and not of persuasion. The Court analyzes motions to reconsider by picking up where it left off in the prior ruling — not by starting anew. Parties opposing reconsideration can do the same, and they may stand on whatever evidence and argument they used to win the earlier ruling. Movants for reconsideration, on the other hand, carry the full burden of production: they must persuade the Court, using only the evidence and argument they put before it, that it should change its prior ruling; they must do all of the legwork, and not rely on the Court to do any supplemental fact-finding or legal research; and they must convincingly refute both the counterarguments and evidence that the opposing party used to win the prior ruling and any new arguments and evidence that the opposing party produces while opposing the motion to reconsider. Unlike the motion that produced the prior ruling, a motion to reconsider is not — and is not supposed to be — a fair fight procedurally. The deck is stacked against a movant for reconsideration, and if such a movant hopes to prevail, he or she must have not only a winning legal position, but the work ethic and tenacity to single-handedly lead the Court to his or her way of thinking.

ANALYSIS

The Court will grant the Motion under the same terms it proposed — and to which the parties agreed — at the hearing, but it will not reopen class certification discovery. This ruling may not be as bad for the Plaintiffs as it may seem: (i) they can obtain copies of the class assignments from the Bureau of Land Management, country clerks offices, and the State Land Office without the Court's blessing; and (ii) they can use formal discovery tools to uncover parol evidence elucidating the meaning of various lease terms, provided — but only to the extent that — the named Plaintiffs have leases containing those terms.

Before examining the specific rules on reopening class certification discovery, the Court will first look at what hurdles the Plaintiffs will face — even if they get all the discovery they need — in getting the Court to certify this case as a class action, after having already denied certification. The Defendants argue that the rule 59(e) standard applies; the Court disagrees. An order granting or denying class certification, despite its importance — and its immediate appealability15 — is not a final judgment; rather, it is an "interlocutory" or "interim" order. See Fed. R. Civ. P. 23(c)(1)(C) ("An order that grants or denies class certification may be altered or amended before final judgment."); Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n.11 (1978)("[A] district court's order denying or granting class status is inherently tentative."). Rule 54(b) provides that

Fed. R. Civ. P. 54(b). The rule 59(e) standard, which pertains only to final judgments, thus does not apply. See Fed. R. Civ. P. 59(e) (titled "Motion to Alter or Amend a Judgment"). In fact, in the Tenth Circuit, a district court is under no obligation whatsoever to abide by its prior interlocutory orders. See Rimbert v. Eli Lilly & Co., 647 F.3d at 1252 ("[L]aw of the case doctrine has no bearing on the revisiting of interlocutory orders. . . .").

Of course, the district court can stick with its prior rulings, and it can limit its reconsideration of rulings to far less thorough a review than it gave the matter in its initial consideration. In the context of interlocutory orders, law-of-the-case doctrine is "merely a presumption, one whose strength varies with the circumstances." Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d at 823 (citation omitted)(internal quotation marks omitted). A leading treatise offers district courts the following guidance on how "the circumstances" should affect the strength of the presumption:

18B Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Vikram David Amar, Richard D. Freer, Helen Hershkoff, Joan E. Steinman & Catherine T. Struve, Federal Practice & Procedure § 4478.1 (2d ed.).

The above passage describes the general principles for applying law-of-the-case doctrine to interlocutory orders, but it would seem that the specific context involved here — a motion to reconsider a denial of class certification — would arise commonly enough for courts to have developed some common practice of handling these motions. As it happens, there is a well-worn path to moving to reconsider a class certification denial, and it leads directly uphill. A prominent class-action treatise — one generally regarded as being plaintiff-friendly — describes the consensus standard that has developed at the district-court level for analyzing such motions:

William B. Rubenstein, Newberg on Class Actions §§ 7:34-7:35 (5th ed.)(footnotes omitted).

While the Tenth Circuit has not explicitly adopted any particular standard for reassessing an initial denial of certification, the Court has noticed — in the extensive surveying of the case law that it conducted in working on this case — that it tends to happen almost exclusively when the case has been remanded from the Tenth Circuit, i.e., when it was the Tenth Circuit, rather than the district court, that decided the denial. Cases in this post-remand procedural posture are uninstructive as to the standard that the Court should apply in this case, because cases on remand from the Tenth Circuit implicate the mandate rule — a "complementary theory" to law-of-the-case doctrine, which "`generally requires [district] court conformity with the articulated appellate remand.'" United States v. Webb, 98 F.3d 585, 587 (10th Cir. 1996)(alteration in original) (quoting United States v. Moore, 83 F.3d 1231, 1234 (10th Cir. 1996)).

The Court agrees with Professor Rubenstein and the Defendants that the common-law law-of-the-case grounds, which, incidentally, are the same as those that apply to rule 59(e) motions after Servants of the Paraclete v. Does, see supra note 11, constitute the majority — perhaps even the consensus — standard among courts for reconsidering class certification denials. If the Plaintiffs can establish one of the traditional law-of-the-case grounds — new law, new evidence, or manifest injustice — so much the better for them, but, even if they cannot, the Court will not deny their motion out of hand.16 In determining the appropriate standard to apply to the motion to reconsider, the Court will look to two additional factors, beyond the presence of the law-of-the-case grounds. First, the Court will assess the thoroughness with which it decided the issue or issues that the motion to reconsider challenges. This factor will almost certainly cut against the Plaintiffs, as they will likely challenge the Court's overall commonality and predominance rulings — rather than specific factual findings or legal conclusions — on which the Court spent an enormous amount of time and energy. Second, the Court will assess the amount of reliance the Defendants have placed in the Class Certification MOO. This factor will likely cut in the Plaintiffs' favor, as their motion to reconsider will likely be relatively timely, and this case is headed for another discovery period regardless of what happens. Given the resources the Defendants poured into defeating class certification on the first go-round, the Court is unlikely to compel them to do much of anything in defending the Plaintiffs' motion. The Court will start its review of the record with the factual findings it made in the Class Certification MOO, and the Court will not allow duplication of any evidence it read or heard during the class certification briefing and hearing. Furthermore, the Court will begin its analysis of the forthcoming motion to reconsider with the legal conclusions it made in the Class Certification MOO, so the Defendants can, if they wish, do nothing, and still may be able to defeat the motion to reconsider.

The Court has granted motions to reconsider in the past, including those in favor of the Defendants in this case. See Anderson Living Trust v. WPX Energy Prod., LLC, 298 F.R.D. 514 (D.N.M. 2014)(Browning, J.). The Court is normally somewhat liberal in its handling of motions to reconsider, but, here, the parties and the Court have already poured massive amounts of time, energy, and money into getting it right the first time. The Court will, thus, apply the circumstantially-varying presumption of law-of-the-case doctrine more strictly to this motion — and to reconsideration of class certification denials generally — than it typically applies to motions to reconsider in other contexts. The Court will not attempt to decide the merits of a motion that the Plaintiffs have not yet filed, but it has no reservations about telling the Plaintiffs that they face an uphill fight, even relative to the battle they already lost on their initial class certification motion.

Moving to the question more immediately before the Court — whether to allow class certification discovery in the upcoming discovery phase, which was supposed to be reserved for merits discovery — it is not completely clear what standard the Court should apply. The Tenth Circuit uses a six-factor test to decide whether it is appropriate to reopen discovery:

Smith, 834 F.2d at 169 (citations omitted). The Court is not certain, however, that the Smith standard really applies here. The Court is not truly "reopening" discovery; after all, there will be another period of discovery forthcoming regardless of what the Court does with the Motion. Also, the Tenth Circuit refers to disrupting an imminent "trial" in the first Smith factor — something which is not at stake here.

In a true motion to reopen discovery, the Court concludes that the Smith factors effectively replace rule 16's "good cause" standard — or, perhaps more accurately, the Smith factors are dispositive as to how good cause applies in motions to reopen; either way, no separate good cause analysis is needed.17 With this Motion, however, the Court will stick with the generic rule 16 good-cause standard, but — given the Motion's close kinship to a run-of-the-mill motion to reopen discovery — it will view the Smith factors as highly instructive. The Court will apply these factors in turn.

As to the first factor, the Court is not so sure that it should — as the Defendants suggest — substitute "class certification" for "trial," and conclude that the Plaintiffs fail this factor, per se, because the Court has already held its class certification hearing. When a district court reopens discovery, in a non-class action, immediately before trial, it is disruptive to the opposing parties' attempts to "solidify" their trial plans, e.g., making witness travel arrangements, deciding how to present the evidence available, and even juggling attorney and paralegal work schedules. Here, the parties are heading into another discovery period, regardless, and the only question is the scope of the discovery to be permitted. On the other hand, the parties prepared for the class certification hearing in much the same way that they would prepare for a trial, and while reopening discovery will not disrupt the planning for or waste expenses associated with that hearing — because it has already happened — the Plaintiffs' request comes in the shadow of a request for a whole new class certification hearing, which threatens to duplicate the same work and expenses that the first hearing imposed. In the end, however, the Court concludes that this factor does not cut against the Plaintiffs; it would only cut in Defendants' favor if this request had come shortly before trial. After all, if the Plaintiffs prevail on their potentially forthcoming motion to reconsider, the Court will likely hold another class certification hearing, regardless. That granting a motion to reconsider will impose these additional expenses cuts against granting the motion to reconsider — it is a valid "circumstance[]" affecting the strength that the Court should afford to the law-of-the-case "presumption" — but that consideration is best left for the Court's analysis of the substantive motion to reconsider, and not taken into account here. Been v. O.K. Indus., Inc., 495 F.3d at 1225 (quoting Avitia v. Metro. Club of Chi., Inc., 49 F.3d 1219, 1227 (7th Cir. 1995)).

As to the second factor, the Defendants oppose reopening discovery, and, thus, the factor cuts against the Plaintiffs. As to the third factor, the Court concludes that it cuts, mildly, against the Plaintiffs. The Defendants have an interest — which would certainly be impaired if the Court reopened discovery — in the speedy disposition of this case. Moreover, it costs money to comply with discovery requests, and the only items that the Plaintiffs appear to need from the Defendants are the assignments, which the Defendants offered to the Plaintiffs during the first round of class certification discovery and which the Plaintiffs declined to review. Forcing the Defendants to repeat a task they have already performed would be unfair to them, and it would reward the Plaintiffs' lack of diligence in the designated class certification discovery period.

As to the fourth factor, the Plaintiffs were not diligent in conducting discovery the first time: they could have easily obtained the assignments, but chose not to do so. Worse, as the Court has already explained, the Plaintiffs declined the Defendants' invitation to review the assignments that the Defendants had on hand. Although Roderick — the Tenth Circuit case that sounded the death knell for class certification on the basis of undifferentiated treatment of classes with disparate lease provisions — came out midway through the class certification discovery period, the Plaintiffs certainly should have recognized its significance before now. If the Plaintiffs had come to the Court in July, 2013, when the Tenth Circuit issued the opinion — or even several months afterward — then the Plaintiffs might have prevailed on this factor, and the Court might have been inclined to extend or reopen class certification discovery so that the Plaintiffs could collect discovery on their reformed post-Roderick certification theory. The Plaintiffs were well aware of Roderick before the hearing — the Court asked the Plaintiffs about it at multiple motion hearings before the class certification hearing — and at no time did the Plaintiffs request to extend or reopen discovery to obtain the additional information they needed to achieve certification in light of Roderick. This factor, thus, cuts against the Plaintiffs.

As to the fifth factor, it also cuts against reopening discovery. The Plaintiffs' requested discovery now has nothing to do with Court-imposed limitations on the first round of discovery. Everything that the Plaintiffs now request could have been obtained in the first round of class certification discovery. The one Court-imposed "limitation" that could possibility have prevented the Plaintiffs from getting what they needed was the time limitation that the Court placed on discovery, and that limitation was both (i) fairly standard for a complex case; and (ii) subject to an eight-month extension. Compare Scheduling Order at 1 (setting a close-of-discovery date for the class certification phase on April 1, 2013), with Amended Scheduling Order at 1 (pushing the class certification close-of-discovery out to December 5, 2013). Even if the Court's time limitations had stifled the Plaintiffs' reasonable needs, they should have spoken up then, rather than waiting until after the hearing and after the Court denied certification.

The sixth and final factor also cuts against reopening discovery. Here, the Court's earlier exposition of the substantive standard to which the Plaintiffs' request will be subjected is particularly relevant. The Plaintiffs' avenue for seeking certification at this point is an ordinary motion to reconsider — not a rule 59(e) or 60(b) motion — but the Court will analyze it using a modified Servants of the Paraclete v. Does standard. The Plaintiffs will need to present (i) new evidence — not just a new presentation format; (ii) new law — not just new argument; or (iii) a motion to reconsider that leaves the Court with the strong impression — not just that class certification might now be appropriate, but that the Court erred in denying it the first time. Imposing renewed discovery costs on Defendants who have already complied fully with a first round of discovery — thus breaking the pact that the Court made with the parties in the Scheduling Order and Amended Scheduling Order — would be more justifiable if the Plaintiffs had a better-than-even chance of capitalizing on the new information they hope to obtain. The Plaintiffs, however, have a lower chance of success now than they have had at any point in this case.

Turning back to rule 16's master good-cause standard — the touchstone of which is the moving party's diligence in getting what he or she needed under the original intended timeframe — the Court concludes that the Plaintiffs come up short. See Street v. Curry Bd. of Cnty. Comm'rs, 2008 WL 2397671, at *6 ("Properly construed, `good cause' means that scheduling deadlines cannot be met despite a party's diligent efforts."). They received one rather generous extension, and never asked for another, from Defendants who were generally amenable to working with such requests. The Tenth Circuit's issuance of Roderick, a potentially theory-of-the-case-altering opinion, provides a plausible explanation for the Plaintiffs' failure to obtain the information they needed in the time allotted, but they still had ample time. Furthermore, the Plaintiffs, to this day, have not raised Roderick's issuance as an excuse, leading the Court to believe that it was not the cause for the discovery defects that they now seek to rectify.

As for the Plaintiffs' suggestion that the Court blindsided them by refusing to certify this case under a management plan that treats all of the proposed class leases the same — i.e., one that ignores textual variations among leases — the Court is, itself, caught somewhat off-guard. The Court believes in resolving case on the merits, and it worked hard to formulate a class-management plan capable of accurately disposing of the claims of each and every proposed class member. Ultimately, however, the Court's system — which it concluded was the simplest and most efficient one possible, while still being sensitive to textual variations and, thus, fair to the Defendants — failed to satisfy rule 23's commonality and predominance requirements, as the Supreme Court of the United States and the Tenth Circuit construe them. The Plaintiffs now, apparently, argue that the Court should have ignored inter-class textual variations and treated the entire proposed class as if all members had signed a single generic lease form. Whether the Plaintiffs call their theory the marketable-condition rule or the implied duty to market — and the Plaintiffs have called it both, and the Court has dismissed it under both stylings — Roderick forecloses it. If the Court were to summarize Roderick's holding — or at least its practical import — in a single sentence, it would be something along the lines of: "A district court cannot treat a proposed oil-and-gas-royalty class as a monolithic unit if the members have materially different leases from one another." The Court largely started its class certification analysis from this point, and if doing so caused the Plaintiffs to feel as if the Court did not notice or appreciate their implied-covenant, treat-them-all-as-one arguments, then the Plaintiffs should look back to either, or both, of the two prior opinions that the Court wrote dismissing the claim on which the Plaintiffs argued for uniform class treatment. See Memorandum Opinion and Order at 84-95, filed May 16, 2014 (Doc. 246)("MOO"); Memorandum Opinion at 128-36, filed June 28, 2013 (Doc. 108)("Memo. Opinion"). The Court has canvassed this issue thoroughly, and it does not know what else to say at this juncture. The Court agrees with the Defendants:

Tr. at 26:25-27:3 (Sutphin); id. at 27:24-28:3 (Sutphin).

The Court will therefore deny the Plaintiffs' request to reopen class certification discovery, and the coming discovery period will be limited to merits issues. The Plaintiffs have, however, two openings to obtain the information they now seek. First, as discussed at the hearing, nothing is stopping the Plaintiffs from informally obtaining information on their own — including seeking copies of the class assignments from public offices. The Court's ruling today means only that the Defendants are under no obligation to comply with the Plaintiffs' requests, and the Plaintiffs may not use the Court's subpoena power to compel non-parties' compliance. Second, some — and probably most — of the parol evidence that the Plaintiffs seek can be obtained in the coming discovery period. The meanings of the various terms in the named Plaintiffs' leases present a merits issue, and the Plaintiffs are thus free to seek discovery on it. If the Court had certified the class, it would have expected the parties to collect and present evidence — both at trial and, potentially, before it — establishing what the various lease royalty provisions mean. Now, the Plaintiffs may not seek discovery on lease provisions that exist only in absent class members' leases, but, if one or more named Plaintiffs have a lease that says x, then the Plaintiffs may use the Federal Rules' discovery tools to obtain parol evidence on what x means.

The Court will thus grant the Motion, and will set a scheduling conference for June 2, 2015, at 9:00 a.m. It will vacate that scheduling conference if the Plaintiffs file a motion to reconsider before that time. Regardless of when the Court finally holds this scheduling conference, the conference will be for the sole purpose of planning discovery, pre-trial, and trial timelines for the named Plaintiffs' case, and will not involve reopening class certification discovery.

IT IS ORDERED that: (i) the Plaintiffs' Motion for a Scheduling Conference, filed March 31, 2015 (Doc. 279), is granted in part and denied in part; (ii) the Court will not allow the Plaintiffs to use the forthcoming discovery period to obtain information relevant only to class certification; (iii) the Court will tentatively set a status conference for June 2, 2015, at 9:00 a.m.; and (iv) the Court will vacate that status conference if the Plaintiffs file a motion to reconsider before that date.