Motions

The Court believes that parties can and should work out most discovery disputes.  The Court expects the parties to make a genuine, good-faith effort to resolve disagreements before filing a discovery motion. 

The Court will not hear or consider any discovery motion or non-dispositive dispute unless the movant has complied with the “meet and confer” requirement of Local Rule 37.2.  The motion must state with specificity when and how the movant compiled with Local Rule 37.2.  Compliance with the Local Rules requires a good faith effort to resolve discovery disputes, including communications that take place in person or by phone.  The exchange of emails or letters will not normally be sufficient to comply with the Local Rules.  Motions that do not comply with the Local Rules may be stricken.

If a party requests a meet and confer, the other party must respond promptly and participate in a meet and confer in a reasonable time.  There is no pocket veto when it comes to having a meet and confer.

If an impasse arises about the recovery of electronically stored information, no discovery motion may be filed unless the parties first meet and confer to determine whether the requested material can be retrieved and, if so, the most effective way of doing so.  Such a conference must take place in person or by phone, and must be attended by an IT representative of the party (or, for a putative class, an IT representative of plaintiffs’ counsel) that served the request and an IT representative of the party that received the request.

All parties should be fully prepared to argue any discovery motion on the date that it is presented.  The Court may rule on discovery motions after hearing argument at the motion call and without briefing. 

If the non-moving party believes that it is important to file a written response to the motion, the non-moving party should request that opportunity at the outset of the hearing.  If, after hearing argument, the Court believes that the motion requires briefing, the Court will set an expedited briefing schedule so that the matter can be resolved quickly. 

Parties must immediately notify the Court if they are withdrawing any previously filed discovery motions.

Motions to Dismiss

The pendency of a motion, such as a motion to dismiss, does not operate as a stay of discovery.

Sequence of Discovery

Parties are reminded that there is no “order” in which discovery must occur.  See Fed. R. Civ. P. 26(d)(3).  One party’s failure or inability to respond to discovery will not excuse any other party’s non-compliance. 

Boilerplate Instructions and Definitions

Boilerplate “instructions” and “definitions” shall not be used in interrogatories, document requests, and requests to admit.  For example, absent special circumstances, there is no need to define the term “document.”  Such instructions and definitions rarely accomplish anything useful, and they merely add unnecessarily to the cost of litigation.  Boilerplate instructions and definitions need not be considered in responding to discovery.

A requesting party can define terms of art or other phraseology that has special meaning based on the unique facts of the case.  Otherwise, the parties should use plain English, and should assume that requests mean what the words mean in common usage and in light of the context of the case.  If there is genuine uncertainty, the parties should clarify the meaning during a meet and confer.

Boilerplate Objections

Objections to written discovery must state with specificity the grounds for objecting.  See, e.g., Fed. R. Civ. P. 33(b)(4) (“The grounds for objecting to an interrogatory must be stated with specificity.”); Fed. R. Civ. P. 34(b)(2)(B) (“For each item or category, the response must . . . state with specificity the grounds for objecting to the request, including the reasons.”).  That is, the objecting party must offer a particularized reason, tailored to each request.   

Boilerplate objections are inadequate, and count for nothing.  For example, a generic assertion that a discovery request is “overbroad” or “unduly burdensome” – without an accompanying explanation – is the same as not objecting at all.  

Evasive Discovery Responses

The Court expects parties to respond to discovery requests in a straightforward manner, without evasiveness.  The Court reminds the parties that, under the Federal Rules, an “evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.”  Fed. R. Civ. P. 37(a)(4).

Civility

The Court will take note if a party is repeatedly inflexible or uncourteous when it comes to extensions, return dates, scheduling matters, and so on.  For example, be reasonable when the due date is near the holidays.  Show respect to opposing counsel and to the other party.