Compel, resist and amend discovery

AuthorWilliam M. Audet/Kimberly A. Fanady
meet anD confer
Task 80 Meet and Confer
Task 81 Move to Compel
Task 82 Move to Compel Depositions
Task 83 Oppose Motion to Compel
Task 84 Move for Protective Order
Task 85 Oppose Motion for Protective Order
Task 86 Prepare Stipulated Protective Order
Task 87 Seek Sanctions
Task 88 Oppose Motion for Sanctions
Task 89 Request Appointment of Magistrate Judge or
Special Master
Task 90 Request Discovery Conference
Task 91 Attend Discovery Conference
Task 92 Move to Extend Discovery Time
Task 93 Oppose Motion to Extend Discovery Time
Task 94 Move to Shorten Discovery Time
Task 95 Oppose Motion to Shorten Discovery Time
Task 96 Amend Discovery Responses
Task 96A Request Additional Discovery in Response to
Motion for Summary Judgment
Task 96B Oppose Request for Additional Discovery in
Response to Motion for Summary Judgment
Task 97 Appeal Discovery Rulings
Form 25 Meet and Confer Letter
Form 26 Letter Conference Meet and Confer Agreements
Form 27 Notice of Motion and Motion to Compel Responses
Form 28 Memorandum in Support of Motion to Compel
Form 29 Declaration in Support of Motion
Form 30 Proposed Order
Form 31 Memorandum in Support of Opposition
Form 31.1 Notice of Motion and Motion to Compel
Form 31.2 Response to Motion to Compel
Form 32 Stipulated Protective Order
Form 33 Memorandum in Support of Motion for Sanctions
Form 34 Letter of Request
Form 35 Notice of Motion and Motion for Issuance of
Letters of Request
comPel anD resist Discovery
Form 36 Request for Initial Conference
Form 37 Proposed Pretrial Order No. 1: Case Management
Form 38 Notice of Cross-Motion and Cross-Motion for
Additional Discovery Pursuant to FRCP 56(f)
Form 39 Memorandum in Support of Cross-Motion for
Additional Discovery Pursuant to FRCP 56(f)
Form 40 Declaration in Support of Cross-Motion for
Additional Discovery Pursuant to FRCP 56(f)
Form 41 Motion for Leave
meet anD confer task 80
Meet and Confer
A. FRCP 37 and most local rules require parties to
attempt in good faith to reach an informal resolu-
tion of a discovery or disclosure dispute before
making a motion to compel. This is called the
“meet and confer” requirement because it forces
the parties to meet and discuss the dispute.
B. Nearly every motion you make to compel dis-
covery or disclosure must include a declaration
or affidavit certifying your efforts to resolve the
dispute before making the motion. See FRCP
37(a)(1), (d)(1)(B); Naviant Marketing Solutions,
Inc. v. Larry Tucker, Inc., 339 F.3d 180 (3d Cir.
2003) (sanctions order against defense counsel
reversed where plaintiff never made good faith
effort to confer); Averett v. Honda of America
Mfg., Inc., 73 Fed. Rules Serv. 3d 1738 (S.D.
Ohio 2009) (motion to strike expert witness
designations denied as premature where movant
failed to meet and confer before filing motion);
Hoelzel v. First Select Corp., 214 F.R.D. 634
(D. Colo. 2003) (motion to compel denied where
plaintiff’s counsel sent single email merely stat-
ing intention to file motion); MCI Construction,
LLC v. Hazen & Sawyer, P.C., 211 F.R.D. 290
(M.D.N.C. 2002) (motion denied where no dis-
covery conference requested or conducted as
required by local rule). If you do not meet and
confer, the court may refuse to hear your motion,
refuse to award you sanctions, or even impose
sanctions against you. See FRCP 37(a)(1), (5)(A)
(i); In re Rhodes Companies, LLC, 82 Fed. Rules
Serv. 3d 468 (D. Nev. 2012) (motion to quash
subpoena denied where no certificate regard-
ing meet and confer efforts submitted; claim
made at hearing that meet and confer would be
futile should have been made in certificate);
Doe v. National Hemophilia Found., 194 F.R.D.
516 (D. Md. 2000) (motion to compel denied).
However, failure to meet and confer will not
necessarily bar consideration of a motion on the
merits. Wilhelm v. Cain, 78 Fed. Rules Serv.
3d 689 (N.D. W. Va. 2011) (letter seeking to
resolve discovery dispute sufficient although
meet and confer did not actually occur; Rule 37
does not require automatic denial of motion to
compel for failure to meet and confer); compare
In re Rhodes Companies, LLC, 82 Fed. Rules
Serv. 3d 468 (D. Nev. 2012) (while court had
discretion to waive strict compliance with meet
and confer requirements, it was not required to
exercise equitable powers when applicable pro-
cedural rules existed). One excuse, for example,
would be if time constraints and a party’s previ-
ous repeated non-compliance with court orders
will likely render the “meet and confer” process
non-productive. See Reidy v. Runyon, 169 F.R.D.
486, 488-91 (E.D.N.Y. 1997).
C. The meet and confer requirement serves several
purposes, such as to:
1. Obviate the need for a motion by reaching an
accommodation between the parties.
2. Force the parties to focus on their positions
and thereby make them reconsider making or
opposing a motion to compel.
3. Narrow the dispute from whether the requested
discovery is justified to a more specific objec-
tion, such as whether a particular privilege
applies. This allows the parties to limit their
briefs to the truly disputed issues.
4. Provide the court some insight (at least where
the meet and confer is in writing) about
whether the parties are being reasonable and
making concessions or compromise offers.
A. The FRCP does not specify a time within which
the parties must meet and confer. The court will
likely impose a “reasonable time” requirement on
the motion to compel (see Task 81), which has the
effect of requiring the meet and confer efforts to
be completed within a reasonable time.
B. The better practice is to meet and confer as soon
as possible after the dispute arises because:
1. The issues are still fresh in the parties’ minds.
2. You will more likely satisfy the reasonable
time requirement.
3. Meet and confer may be a drawn out process
taking several months to complete. Any delay in
starting the process may delay resolving the dis-
pute in time to make the discovery most useful.
C. If you receive a meet and confer request, respond to
your opponent’s efforts as soon as possible to avoid
any suggestion that you are not acting reasonably.
A. Review the responding party’s discovery
responses to determine their adequacy. See Tasks
34, 39, 46, 54.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT