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).