Walt sat down at his desk and began skimming through the opposition’s responses to his discovery. The more he read, the angrier he became. “Objection …. Objection… Objection …” Before the responses could hit the floor, he was hammering away on an email:
Re: meet and confer
Gustavo:
This email serves as my effort to meet and confer under the rules. I have received and reviewed your objections to my discovery. They are without merit and frivolous. Please respond by providing all documents and interrogatory answers by tomorrow by 3:52 p.m. or I will file a motion to compel. Thanks.
Walt
Moments later, Gus glanced at his iPhone and looked to clear that annoying red badge in the corner of his email app icon. Walt’s “meet and confer” email was not well received. Gus was quick to respond:
I got your email. My objections were proper. It is your discovery requests that were frivolous. And if you remember, in Utah it’s no longer called a motion to compel, it’s called a statement of discovery issues. See you in court. Gus
Sent from my iPhone
After this brief exchange, can Walt properly certify that he conferred in good faith with opposing counsel? Surely not. To meet and confer in good faith takes more. Under Utah’s federal local rules it requires, “[a]t a minimum, … prompt written communication sent to the opposing party:
- identifying the discovery disclosure/request(s) at issue, the responses(s) thereto, and specifying why those responses/objections are inadequate, and;
- requesting to meet and confer, either in person or by telephone, with alternative dates and times to do so.
This standard is consistent with what many courts describe as necessary to meet the obligation in good faith:
- Compass Bank v. Shamgochian, 287 F.R.D. 397, 400 (S.D. Tex. 2012) (“Plaintiff’s single letter unilaterally identifying flaws in Defendant’s discovery responses and setting an arbitrary response deadline for Defendant would seem to be inadequate, as it does not equate to a good faith conferral or attempt to confer”).
- Shuffle Master, Inc. v. Progressive Games, Inc., 170 F.R.D. 166, 172 (D. Nev. 1996) (reasoning that a single demand letter was insufficient as there was no effort at “personal or telephonic consultation during which the parties engage in meaningful negotiations or otherwise provide legal support for their position”)
- Williams v. Board of County Com’rs of Unified Gov’t of Wyandotte County, 192 F.R.D. 698, 699 (D. Kan. 2000) (clarifying that “sending unanswered correspondence to opposing counsel demanding discovery be produced by a specific deadline” does not satisfy the duty to confer)
- Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 456, 459 (D. Kan. 1999) (explaining that “parties do not satisfy the conference requirements simply by requesting or demanding compliance with the requests for discovery” by an arbitrary deadline, because the parties need to “deliberate, confer, converse, [and] compare views”)
Discovery is miserable enough. It’s expensive. And it’s easy to be a jerk about it in written communication. But when two lawyers make an honest and good faith effort to hash something out over the phone or in person it usually avoids the need for court intervention. That’s the point. There is give and take, but there is almost always common ground. The meet and confer is intended to resolve the issue before a court must decide it.
Walt is now hip to the meet and confer standards …
Re: Meet and confer
Gus:
I am writing to bring an issue to you regarding your responses to my client’s discovery requests. Specifically, you objected to Request for Production No. 3 on the basis that it is “irrelevant and not reasonably calculated to lead to admissible evidence.” As you know, your client sued XYZ Corp. claiming he was wrongfully terminated. Mr. Jones, your client’s best friend, testified in his deposition that he saw a list that your client wrote up titled, “Scheme to take money from XYZ by claiming I was wrongfully terminated.” We think that document is relevant and should be produced.
Please consider this matter and let’s have a call to discuss. I am available on Monday and Tuesday of next week between 9:00 a.m. and 3:30 p.m. Just let me know what time works for you. Thanks.
Walt
Gus reviewed the email. Sounded reasonable enough …
Walt,
Let’s do it at 10:15 Monday morning … You call me.
By the way, have you ever wondered why those signs in public restrooms that say “Employees must wash their hands,” don’t say that “Everybody must wash their hands”? Just a thought. Talk to you Monday.
Gus