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October 24, 2018 Practice Points

If Counsel Can't Agree Whether They Met and Conferred, the Court Might Assume They Didn't

A moving party is well advised to memorialize the substance of a meet-and-confer immediately.

By Kenneth Duvall

Recent ABA practice points have noted a spate of discovery disputes rejected by trial courts for failure of counsel to meet and confer in a meaningful and productive manner. The pattern continues, with a twist, in a recent ruling from the Eastern District of Missouri.

In Primary Care Pharmacy, LLC v. Express Scripts, Inc., the parties disagreed not only over a substantive discovery issue, but also over whether they had truly met and conferred about it. (E.D. Mo., 2018). The plaintiff claimed that the parties had not met and conferred at all about the issue, while the defendant claimed that they had done so multiple times. After further clarification, the defendant admitted that the parties had had only one conversation, but the plaintiff still denied that an adequate meet-and-confer occurred during that conversation.

The court concluded that the parties had not satisfied their meet-and-confer requirements because the parties could not even agree that they had met and conferred. The “inconsistency [in the parties’ characterization of their telephone call] indicates that the parties did not fulfil their meet and confer obligations.” Accordingly, the court denied the pending motion to compel without prejudice and ordered the parties to meet and confer before it would entertain such a motion.

Parties often disagree about whether there has been an adequate meet-and-confer. A moving party is well advised to memorialize the substance of a meet-and-confer via email immediately after a telephonic or in-person conference so that the party will have proof for the court that a thorough meet-and-confer occurred. If the responding party disputes the characterizations in the email, then the moving party can take further steps (perhaps including a follow-up meet-and-confer or at least clarification through further communications) to avoid the type of ruling seen in Primary Care.

Kenneth Duvall is with Bilzin Sumberg Baena Price & Axelrod LLP in Miami, Florida.

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