The Court believes that parties can and should work out most discovery disputes
and thus discourages the filing of discovery motions or motions to compel,
which add extra time and costs for both parties. The Court will not consider
any discovery motion unless the movant has complied with the meet-and-confer
requirement of Local Rule 37.2. This applies not only to motions to compel, but
also to motions to quash
discovery or for protective orders re discovery. The motion must state
with specificity when and how the movant complied with Local Rule 37.2.
Remember that compliance with Local Rule 37.2 requires a good-faith
effort to resolve discovery disputes and also requires that the conferral take
place face-to-face, by telephone, or by video.
The exchange of emails or other correspondence will almost never be
sufficient to comply with Local Rule 37.2.
A
meet and confer is not in good faith if a party merely sticks to its original
position or refuses to consider a compromise or a narrowed approach. Parties are expected to meet and confer
within two business days of any request to meet and confer on a subject, absent
good cause for delay; a failure to do so may be deemed a forfeiture of the
party’s position with respect to the requested discovery. A party’s failure to meet and confer in good
faith may result in the imposition of sanctions, including but not limited to
an order to pay the opposing party’s expenses.
See Federal Rule of Civil Procedure 37(a)(5), (b).
If
a hearing is set on a discovery motion, all parties should be fully prepared to
argue any discovery motion on the date that it is presented. If the Court sets
a hearing on a motion, the Court may rule on the discovery motion during or after
the hearing and without further briefing. If after hearing argument, the Court
believes that the motion requires briefing, the Court normally will set an
expedited briefing schedule so that the matter can be resolved promptly.
Any
motions to compel must identify and attach the specific discovery requests at
issue, as well as the opposing party’s response (i.e., motions must not
simply identify specific “categories” of documents or discovery that the movant
seeks). Motions to compel must also
include arguments supporting the relevance and proportionality of the requested
discovery and a recitation of the parties’ meet and confer efforts. Motions to compel may be summarily stricken
for a failure to comply with these rules.
Moreover, parties must not seek overbroad requests in the hope that the
Court will tailor the resolution on its own; each discovery request will be
adjudicated based on the totality of the request, so parties should
appropriately narrow their requests ahead of time. Failure to do so may result in denial of the
motion to compel with prejudice; the Court will not tailor a discovery request
for the party when it could have done it on its own.
Parties must immediately notify the Court if they are withdrawing (or
narrowing) any previously filed discovery motion.
Any
motion to extend discovery deadlines must be presented in writing (after
conferral with the other side), filed in advance of the discovery deadline, and
must present the opposing party’s position and demonstrate good cause for the
extension.
With
particular respect to electronic discovery disputes, if the
parties have reached an impasse regarding the discovery of records from a
database, server, computer, service provider or similar electronic storage
facility (ESF), before filing a motion to compel, the parties are
required to meet and confer with an IT representative for each party in order
to determine the most effective and feasible ways to retrieve the requested
material, as well as the proper format for the retrieval of the records. This
electronic discovery conference must take place in person, by telephone, or by
video, and both sides should be prepared to discuss specifically the parameters
of both the search(es) and the ESF.