We’ve all endured them. Interminable phone calls where opposing counsel talk at—but rarely with—each other. Extended letter or email exchanges in which lawyers articulate and re-articulate positions that are meant only to serve as placeholders for an inevitable ill-tempered discovery motion, rather than to promote resolution of a dispute. And as we endured them, we racked our brains about how to spare our clients the financial burden of another round of discovery-related motion practice.
Engaging in meaningful communication with opposing counsel can be an effective way of saving client resources, by separating disputes in which court involvement is avoidable from those in which it is unavoidable. But a meaningful meet-and-confer is not only a way to lower clients’ discovery bills. It is also a critical prerequisite to obtaining relief in those disputes that truly do require court involvement. To avoid denial of motions to compel for failure to meet and confer, lawyers need to pay close attention to the source and scope of this conferral obligation.
Prior to filing a motion to compel in federal court, virtually all litigators inform the court that “the parties met and conferred in a good faith effort to resolve their dispute.” The reality, however, is that such statements encompass a broad range of communications, from unilateral missives to combative telephone calls, and even sometimes—once in a while—productive, in‑person discussions. Increasingly, judges are reminding parties that meet-and-confer conferences are “party—not judge—driven” and requiring parties to demonstrate that their meet-and-confer was “meaningful.” See, e.g., The Sedona Conference Cooperation Proclamation. This begs the question: What does counsel need to do in the meet-and-confer to make it meaningful?