Recent Example of a Valid Effort to “Meet and Confer” to Resolve Discovery Disputes

E-Discovery LLC - Recent Example of a Valid Effort to “Meet and Confer” to Resolve Discovery Disputes By Michael Berman
Image: Kaylee Walstad, EDRM.

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

Frequently, courts deny motions presenting a discovery dispute due to the failure of the moving party to engage in a good faith, pre-filing “meet and confer.” See, e.g., There’s No Right or Wrong Answer – But There Are Mistakes (Apr. 19, 2024) (“If two sides are battling over nine separate discovery issues for at least five months, a single phone call does not meet their Local Rule 37.2 obligations….  Chatting for a bit about a dispute…. is not engaging in a good faith meet and confer.”). 

In short, cooperation involves disclosures and counter-proposals.  See 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024).

In Jenkins v. Miller, 2024 WL 3174519 (D. Vt. Jun. 26, 2024), the court found that the following, unsuccessful efforts were sufficient and rejected defendants’ challenge to the process:

Jenkins satisfied her meet-and-confer obligations. On April 1, Jenkins’ counsel (Andrew O’Connor) sent an email offering to meet and confer with Defendants regarding the discovery requests. Mihet’s April 9 email responded that Defendants would provide a response “by April 15.”  Mihet did not offer to meet-and-confer, nor did he express a belief that further dialogue was necessary (or would be helpful) for resolution of the outstanding discovery disputes. After the April 15 discovery deadline elapsed, O’Connor offered to meet and confer sometime between April 16 and 23, a request that Mihet again rejected.  The Court finds that O’Connor’s efforts satisfy both the local and federal rules’ requirements that parties make “good faith” attempts to resolve non-dispositive issues without Court intervention.

Id. at *2 (emphasis added; citations to record omitted).

President Lincoln suggested that one who kills one’s parents cannot seek mercy as an orphan.  That principle appears to have been at play here.  A party that refused to cooperate cannot defend against a motion by asserting that more cooperation was required.

Mihet’s April 9 email responded that Defendants would provide a response “by April 15.”  Mihet did not offer to meet-and-confer, nor did he express a belief that further dialogue was necessary (or would be helpful) for resolution of the outstanding discovery disputes.

Jenkins v. Miller, 2024 WL 3174519 (D. Vt. Jun. 26, 2024).

In the District of Maryland, Local Rule 104.7 requires “more than sending an email or letter to the opposing party. It requires that the parties meet in person or by video or telephonic means for a reasonable period of time in a good faith effort to resolve the disputed matter.”  See District of Maryland’s Proposed Amendment to “Good Faith” Conference Rule (Apr. 7, 2023).  However, a certificate of compliance may recite “counsel’s attempts to hold such a conference without success….”

Courts have recognized a futility exception to the requirement of a good faith conference. See Do You Have to Ask an Opponent for a Privilege Log? (June 25, 2024); There’s No Right or Wrong Answer – But There Are Mistakes (Apr. 19, 2024).

Author

  • Michael D. Berman

    Mike is the owner of E-Discovery, LLC, and of counsel at Rifkin Weiner Livingston LLC, in Baltimore. He concentrates on commercial litigation and offers mediation services. He was the primary editor of Electronically Stored Information in Maryland Courts (Md. State Bar Ass’n. 2020), and he co-edited M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial (ABA 2011), and J. Baron, R. Losey, and M. Berman, eds., Perspectives on Predictive Coding (ABA 2016). Mike has litigated a number of cases in the trial and appellate courts in Maryland. He is an Adjunct Professor at the University of Baltimore School of Law where he co-teaches a three-credit discovery workshop that focuses on e-discovery. He has lectured at the Maryland Judicial College and he chaired the Bar committee that drafted the proposed ESI Principles for the District of Maryland. He is a past: co-chair of the Federal District Court Committee of the Maryland State and Federal Bar Associations; chair of the Litigation Section Council, Maryland State Bar Association; and, co-chair of the American Bar Association Litigation Section Book Publishing Board. He graduated from the University of Maryland School of Law and is also an Army veteran. He is admitted to the Maryland bar. The opinions expressed in this blog are not necessarily those of Rifkin Weiner Livingston LLC.

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