Compel, resist and amend discovery

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 361-496

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meet anD confer

CHAPTER 13: COMPEL, RESIST

AND AMEND DISCOVERY

TASKS

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

FORMS

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

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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

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meet anD confer task 80

TASK 80

Meet and Confer

I. WHAT AND WHY

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.

II. WHEN

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.

III. HOW

A. Review the responding party’s discovery

responses to determine their adequacy. See Tasks

34, 39, 46, 54.