Rule 37(a)(1) and all or most local rules require counsel to confer before the court will review a discovery dispute. A judge or magistrate judge may reject a perfunctory conferral such as an exchange of emails or telephone messages. Two recent decisions help give dimension to the conferral process and show that even in-person conferrals can fall short of what the rules require.
In a Kansas personal-injury case, the plaintiff sought production of the insurance-claim file. The defendant objected on the grounds of work-product privilege, attorney-client privilege as to some documents, and relevance. The plaintiff’s counsel delivered a “golden rule” letter cautioning the defense that the dispute needed to be resolved to avoid a motion to compel. Three weeks later, both counsel discussed the dispute in person, and defense counsel indicated he would respond in writing by a specified date. Plaintiff’s counsel waited three days beyond the date, but still received no response. Without further conferral, plaintiff’s counsel then filed his motion to compel.
The magistrate judge ruled that plaintiff’s counsel did not confer as required under the local rule. Having been told that a response to his letter would be forthcoming, counsel’s obligation of good faith required him to attempt to contact defense counsel one last time before filing the motion. Kosjer v. Coffeyville Resources Crude Transp., No. 17-1181 (D. Kan Mar. 5, 2018).
In a Nevada case, counsel discussed their discovery dispute in person at a deposition. On that basis, defense counsel certified that adequate conferral occurred before filing his motion to compel. The magistrate judge disagreed. “While the parties discussed the disputed objections during Plaintiff’s deposition, they did not address the issues with the same level of detail and legal support as they would during briefing a discovery motion.” Guerrero v. Wharton, No. 16-cv-01667 (D. Nev. Jan. 22, 2018).
Nevertheless, judges may tack differently when faced with a conferral failure. In Guerrero, Judge Koppe declined to hear the dispute altogether, denying the motion without prejudice. In doing so, she offered several rubrics, with citations to authority, to help guide counsel through the conferral process:
- Discovery is supposed to proceed with minimal involvement of the court.
- Counsel should strive to be cooperative, practical and sensible, and should seek judicial intervention only in extraordinary situations that implicate truly significant interests.
- Judges in [the District of Nevada] have held that these rules require that the movant must personally engage in two-way communication with the nonresponding party to meaningfully discuss each contested discovery dispute in a genuine effort to avoid judicial intervention.
- The consultation obligation promotes a frank exchange between counsel to resolve issues by agreement or to at least narrow and focus matters in controversy before judicial resolution is sought. To meet this obligation, parties must treat the informal negotiation process as a substitute for, and not simply a formalistic prerequisite to, judicial resolution of discovery disputes.
- The parties must present to each other the merits of their respective positions with the same candor, specificity, and support during the informal negotiations as during the briefing of discovery motions.
- Certifications must accurately and specifically convey to the court where, how, when, and through whom the respective parties attempted to personally resolve the discovery dispute.
- Courts may look beyond the certification to determine if a sufficient meet-and-confer actually occurred.
In contrast, though Judge O’Hara denied Kosjer’s motion to compel without prejudice, he addressed the merits of the dispute. His analysis warned the defendant that most of its discovery objections lacked merit. At the same time, he gave the defendant the opportunity to cure those deficiencies before he would consider a motion to compel.
It’s a fair question whether the conferral requirement has been watered down by the judicial trend of setting telephone conferences when first notified of a discovery dispute, thus short-circuiting the motion in which the conferral certificate must appear. Still, these two cases impart some cautionary lessons. First, a conferral certificate should be detailed enough to prove that counsel met (or fully tried to meet) conferral standards. Second, the ideal conferral is unrushed—as rigorous and mindful, perhaps, as the presentation of competing arguments to the court. This might be a difficult adaptation for those of us who remember the “old days”—before judges expected more collaboration and less confrontation. But consider the cost to the client of a motion that proves to be a dud. Ultimately, we confer to serve our clients, not the courts.
Andrew J. Felser is an attorney in Denver, Colorado.