Compel, resist and amend discovery

AuthorWilliam M. Audet/Kimberly A. Fanady
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
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
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.
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.
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

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