[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
A few days ago, I addressed When Must a Motion to Compel Be Filed? (Aug. 26, 2024).
The issue was addressed again four days later in Turner v. Apple, Inc., 2024 WL 4008763 (N.D. Ca. Aug. 30, 2024). The Turner court wrote that Turner waited too long to move to compel because a negotiating impasse triggered the duty to file such a motion.
While Turner did not move to compel sooner, because the Turner parties continued to engage in good faith negotiations to resolve the discovery disputes, that good faith did not equate to “good cause” for a late filing of the motion to compel.
One lesson from Turner is that parties that are in this situation – – they are engaged in lengthy negotiations to resolve a discovery dispute that exceed the milestone for moving to compel – – would be prudent to file a stipulation extending the time for filing or to otherwise seek court approval of an extension of time to file a motion to compel.
The Turner lawsuit raises complex issues: “Nearly four years ago, Plaintiff Alasdair Turner filed this putative class action against Defendant Apple, Inc. In his original complaint, Turner alleged that one of Apple’s mobile operating systems (iOS 13) contained code that caused iPhones to transmit cellular data without users’ approval or knowledge. Turner claimed that this excess data consumption increased users’ costs and reduced the amount of data available to users under their cellular service plans.” Id. at *1.
The primary holding of Turner was that Turner waited too long to attempt to amend his complaint. In doing so, the court addressed the belated motion to compel.
However, good faith is not good cause. Although it is best practice to negotiate discovery compromises without court involvement, when the parties reach an impasse—or when, as here, progress on discovery disputes is too slow—the parties should move for relief so that the case may proceed without excessive delay.
Turner v. Apple, Inc., 2024 WL 4008763, at *4-5 (N.D. Cal. Aug. 30, 2024) (emphasis added).
First, there was substantial delay in agreeing to an ESI Protocol. The court wrote that: “[A]lmost a year and a half after Turner first served his document requests, the parties still had not agreed to a protective order or ESI protocol (which are typically agreed upon at the start of discovery, prior to making any document productions) and needed court assistance to make those preliminary agreements.”
Second, that delay led to further delay in document production. Only after agreeing to an ESI Protocol, “some two years after Turner served his first document requests, did document productions begin flowing.” Id. at*4.
The Turner court continued:
It is baffling that it took the parties two years to agree to a protective order and to begin making document productions. Predictably, each side faults the other for the delay. But discovery is a collaborative process, and neither side can fully escape responsibility for a failure of this magnitude. Still, “the burden lies with the plaintiff to prosecute his case properly,” Kamal, 88 F.4th at 1277 (cleaned up) (quoting Johnson, 875 F.2d at 610), and Turner had ample opportunity to move discovery forward more expeditiously. Namely, at some point during the two years of meet and confers, when there had been no tangible results despite months of discovery negotiations, Turner should have filed a motion to compel to push the case forward. Turner did not do so.
At [the] hearing, Turner explained that he avoided filing discovery motions because he felt that the parties were making progress in discovery negotiations and did not want to burden the Court with additional, unnecessary work. Turner’s point is well-taken, and the Court trusts that Turner was motivated by a good-faith desire to avoid burdening the Court. However, good faith is not good cause. Although it is best practice to negotiate discovery compromises without court involvement, when the parties reach an impasse—or when, as here, progress on discovery disputes is too slow—the parties should move for relief so that the case may proceed without excessive delay. Turner blew past that point when he allowed discovery negotiations to drag on for nearly two years without ever filing a motion to compel. So, the Court finds that Turner was not diligent in pursuing the discovery that forms the basis of his motion for leave to amend.
Id. at *4-5 (emphasis added).
The Turner court could have reached the opposite result. As noted in the prior blog, courts have discretion to consider an untimely motion to compel. Estoppel, such as when one party promises, but does not provide, supplementation, may justify delay. Similarly, “some action of the non-moving party” may justify delay.
However, where there is an “adamant” refusal by the opponent, delay is impermissible. “[C]ooperation does not mean capitulation.” P. Grimm, “Practical Ways to Achieve Proportionality During Discovery and Reduce Costs in the Pretrial Phase of Federal Civil Cases,” 51 Akron L. Rev. 721, 736-37 (2017).
The Federal Rules of Civil Procedure “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” [emphasis added].
“When operating in a gray area, additional caution may be prudent. And, there is nothing that precludes a discussion of this topic in a Rule 26(f) conference of the parties and agreeing to a milestone for motions to compel as part of a discovery plan.” When Must a Motion to Compel Be Filed? (Aug. 26, 2024). Turner shows that a stipulation or other court-approved extension may be prudent.
