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The Dangers of Failing to Meet and Confer Regarding ESI

Posted on March 3rd, 2015

Courts React Unfavorably When Parties Refuse to Meet and Confer Before Approaching the Court

In the complex world of eDiscovery, parties must increasingly cooperate in often unprecedented ways during discovery. Whether parties have to jointly craft complex search term strings or review a predictive coding document “seed set” together, eDiscovery realties have pushed many lawyers outside of their comfort zone when it comes to cooperation with opposing counsel. But with FRCP 37(a)(1) mandating that parties meet and confer in good faith before filing a discovery motion (and with most states having similar provisions), many courts are clearly fed up with parties who refuse to meaningfully meet and confer before running to court. (In fact, failure to comply with meet and confer requirements is one of the most common reasons for losing a discovery motion in federal court.)

Ideally, a meet and confer session should clarify and focus the issues between the parties, eliminate tangential disagreements, and avoid unnecessary motion practice. In the midst of a heated discovery battle, though, lawyers sometimes forget how much courts generally loathe discovery motions, especially if a court surmises that a motion could have been avoided with some healthy discussion between counsel. Consider whether you would want to be one of the parties in the cases described below, let ILS help you determine on which ESI points you may want to compromise in your next case, and when you should need to bring an issue to the judge.

Recent Court Opinions Addressing Parties’ Failure To Meaningfully Meet And Confer Regarding ESI

  •  Morgan Hill Concerned Parents Assoc. v. California Dep’t, No. 2:11-cv-03471-KJM-AC (E.D. Cal., Feb. 9, 2015) The Eastern District of California admonished both plaintiff and defendant for failing to meaningfully meet and confer regarding eDiscovery disputes before approaching the court. The court ordered the parties to engage in at least two in-person meet and confer sessions and to then file a joint report summarizing what occurred during the meet and confer sessions, including who attended and how long the sessions lasted.
  •  Herron v. Fannie Mae , CV No. 10-943 (RMC) (D.D.C. Feb. 2, 2105) District Court Judge Rosemary M. Collyer of the District of Columbia had obviously had enough of the parties’ failure to meaningfully meet and confer regarding discovery, including ESI issues, when she titled her latest discovery order “Order on One Millionth Discovery Dispute.” Consider whether either party benefited from frustrating a federal judge like this.
  •  Smyth v. Merchants Credit Corporation , Case No. C11-1879RSI (W.D. Wash. September 10, 2013) The Western District of Washington chided the parties for failing to meet and confer regarding disputed ESI issues, with the court observing that it had no evidence that the parties had reached an impasse on any particular discovery request before Plaintiff filed a motion to compel. The court denied the plaintiff’s motion.
  •  Viteri-Butler v. University of California , Case No. CV 12-02651 PJH(KAW), (N.D.Cal. January 7, 2014) The parties failed to reach an agreement on search terms or ESI custodians during their FRCP 26(f) conference. The parties exchanged multiple emails regarding scheduling another meet and confer but never actually held one before Plaintiff filed a motion to compel. The Northern District of California observed that, “the papers filed by the parties reveal that they have not cooperated during the discovery process and have done little to attempt to resolve their disputes without court intervention.” The court denied the motion.

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