Compel, resist and amend discovery

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 373-516

13-1

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

13-3

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

resolution 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

discovery 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);

Westfield Insur. Co. v. Carpenter Reclamation,

Inc., 301 F.R.D. 235 (S.D.W. Va. 2014) (form

letter to opposing counsel that did not contain

request to confer was inadequate); Patrick v.

Teas Valley Trs., LLC, 297 F.R.D. 248 (N.D.

W. Va. 2013) (motion to compel denied where

party only went through motions and did not

meet and confer in good faith); 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 stating 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 discovery 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 regarding 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 procedural rules existed). One excuse,

for example, would be if time constraints and

a party’s previous 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

objection, 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