Compel, resist and amend discovery

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 433-582

HANDLING FEDERAL DISCOVERY

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

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COMPEL, RESIST AND AMEND DISCOVERY

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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 TASK 80

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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.