Discovery disputes do not always have to result in a motion to compel. Pre-motion conferences with a magistrate judge can be an efficient and cost-effective way to resolve nondispositive discovery disputes and keep the case moving forward on the merits. In fact, some magistrate judges, myself included, require that the parties participate in a premotion conference with the court before it will allow any party to file a discovery motion. In such cases, if you file a discovery motion without first having the informal conference, the court will likely strike the motion entirely and require that it be refiled (if at all) after the court’s conference.
Motion practice is expensive and usually creates weeks of delay in resolving discovery issues. The parties must prepare and file their briefs, the court may want to hear oral argument, and then the court will typically need time to issue its ruling. After all that, even more time is needed for compliance with the court’s decision.
Pre-motion conferences are within the discretion of the individual magistrate judge as part of his or her inherent authority to manage court proceedings. The advisory committee notes to the 2015 amendments to Federal Rule of Civil Procedure 16 expressly acknowledge the court’s authority to resolve discovery matters without formal motions where appropriate, stating: “Many judges who hold such conferences find them an efficient way to resolve most discovery disputes without the delay and burdens attending a formal motion, but the decision whether to require such conference is left to the discretion of the judge in each case.”
If the magistrate judge in your case holds pre-motion discovery conferences, how can you make the most of that opportunity for your client? First, read the court’s procedures for pre-motion conferences carefully. These are usually available on the court’s public website under a drop-down menu such as Judges’ Procedures. They might also be spelled out in the case management order.
My procedures require that the parties submit a joint discovery status statement (1) summarizing the nature of the dispute; (2) confirming the parties’ prior efforts to meet and confer about the specific issues; and (3) including a brief statement of each party’s position on the issues. I also require that the joint statement include three mutually agreed dates when the parties are available for the conference.
The joint statement is submitted to my chambers via email, and my deputy clerk then confirms which date works for me to hold the conference, and she circulates a conference call number for all parties to join on the call. Allowing the parties to appear telephonically saves valuable time and expense right at the outset. Even though the call is conducted from my chambers, every call is recorded. The case is called and all counsel state their appearances just as if they were in the courtroom. Afterwards, I issue a minute order summarizing any rulings I make during the call. Any party that wishes to can also order a transcript of the conference.
Second, stick to the issues. The conference is not an opportunity to hurl invectives about the bad behavior of opposing counsel. Even if it is all true, the court is not really interested. I sometimes have counsel on the discovery calls who want to have a “food fight” about how badly the other side has behaved. My concern is to identify and address the specific discovery problems that are impeding the substantive progress of the litigation. Focus on that with the court—it will enhance your credibility and respectability quotient, valuable currency that may come in handy down the road.
Third, identify the specific discovery requests at issue, not just general concepts. The court cannot order production or assess objections in the abstract. If there are particular requests for production or admission in dispute, include with the joint discovery statement a PDF file of those requests and the opposing party’s objections or responses. This will greatly assist the court in addressing the dispute.
Fourth, do not raise new issues on the call that were not presented to the court in the joint discovery statement.
Fifth, conduct yourself on the phone call just as if you were in the courtroom. Direct all comments to the court, not opposing counsel. Do not interrupt, either the court or opposing counsel. Because the parties are on the phone, they cannot take visual cues for when to interject. Therefore, it is important to wait until the judge directs you to address what opposing counsel has said or respond to a question from the court. This should not need emphasis, but it unfortunately does. It is not only respectful to do so, but it also ensures that you will get a “clean” transcript of the conference if you need one later, rather than a garbled transcript where the parties are talking on top of each other.
Finally, do not wait until just days before the discovery cutoff to contact the court for a pre-motion conference. A magistrate judge cannot arbitrarily extend the discovery cutoff set in the presiding district judge’s scheduling order. More importantly, review the district judge’s scheduling order before setting the pre-motion conference. Many district judges require that the discovery cutoff is not just the last date to bring discovery motions, but the last date to have all motions and any compliance with discovery orders completed.
The informal discovery conference can be especially useful to resolve disputes about issues such as the appropriate time frame for discovery, the scope of relevant documents, locations for depositions, search term protocols for collection and review of electronically stored information, and topics for Rule 30(b)(6) depositions. Even when I conclude that full briefing is necessary on an issue—and I often do, particularly when privilege issues are in dispute—the premotion conference has usually narrowed the issues to be briefed.
Federal Rule of Civil Procedure 1 requires that the court and the litigants construe and administer the civil rules in a manner that will secure the just, speedy, and cost-efficient resolution of matters on the merits. The informal conference can be a powerful tool in achieving that goal. With preparation and attention to the judge’s procedures, you will be prepared to take full advantage of the discovery conference.
