[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
The decision in EEOC v. Hooters of America, LLC, __ F. Supp. 3d __, 2024 WL 4362863 (M.D. N. Car. Oct. 1, 2024), opens with the court’s statement that:
The parties jointly ask to extend the discovery deadline and continue the trial. They have not acted with due diligence or shown good cause, and the motion will be denied. As the parties have demonstrated that they cannot manage the discovery process efficiently on their own, court oversight is necessary.
EEOC v. Hooters of America, LLC, __ F. Supp. 3d __, 2024 WL 4362863 (M.D. N. Car. Oct. 1, 2024).
The Hooters court explained that scheduling orders “are mandatory.” They “serve a vital purpose” in caseload management, which in light of “crowded dockets” is “an essential tool for handling civil litigation.”
While parties are frequently criticized for inadequate or superficial efforts to resolve discovery disputes,[1] in Hooters, the parties engaged in too many unproductive discussions and took too long.
All that said, the Court realizes the parties have gotten themselves into a pickle and need help. The Court may be willing to modify some deadlines if that can be done without delaying trial. But the inconveniences and difficulties resulting from the parties’ lack of diligence should fall on the parties, not the Court.
EEOC v. Hooters of America, LLC, __ F. Supp. 3d __, 2024 WL 4362863 at *4 (M.D. N. Car. Oct. 1, 2024) (emphasis added).
Other courts have also stated that, where “meet and confers” are unproductive “despite months of discovery negotiations,” the parties should file a motion “to push the case forward.” When Must a Motion to Compel Be Filed? – Part 2 (Sep. 6, 2024). “Good faith” in discussions is not “good cause” for delay. Id.
There are limits to the duty to cooperate: “[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).
In the motion, the parties say they have been diligent…, but the facts in the motion show they have taken a desultory approach that leisurely strolls towards resolution. There have been gaps between emails and meet-and-confers, with little obvious progress made.
Id.
Scheduling orders are important because changes impact both the case in which they are entered and other cases on the docket.
The Hooters court stated: “[A] scheduling order is an important vehicle in securing the just, speedy, and inexpensive determination of every action.” The court added that a scheduling order is “’the critical path chosen by the trial judge and the parties’ to resolve the case fairly and expeditiously.” Id. at *1.
Changes to those orders “indeed, almost always—impact other cases on the court’s docket and often impose new management demands on the court.” The Hooters court wrote that “[c]hanges to a scheduling order or a trial date affect efficiency and prompt resolution of other cases too.” Id. at *1.
For those reasons, the Hooters court explained, Fed.R.Civ.P. 16(b)(4) permits modification of those orders “only for good cause and with the judge’s consent.” Id. at *1. The “absence of diligence” is not “good cause.” Id. As noted above, “good faith” in discussions is not “good cause” for delay. When Must a Motion to Compel Be Filed? – Part 2 (Sep. 6, 2024).
The Hooters case began months earlier with administrative proceedings. The parties engaged in EEOC conciliation. Then, they “asked for and received 10 months to conduct discovery.” 2024 WL 4362863, at *2.
However:
The Initial Pretrial Order was entered in late February 2024, yet the plaintiff did not serve written discovery until the end of April, … and the defendant delayed sending written discovery until the end of May…. It took the parties months to submit a proposed Protective Order…. Even though the parties have been discussing an ESI protocol since January…, and told the Court they expected to agree to a protocol by mid-March…, those discussions have not yet been productive. Doc. 30 at ¶ 7(a) (asking for a deadline several weeks from now to submit an ESI proposal).
The defendant did not answer the plaintiff’s interrogatories until mid-July…, and, after repeatedly failing to produce documents on promised dates, finally produced some documents in response to the plaintiff’s April requests in mid-August…. The plaintiff responded to the defendant’s discovery around the same time…. The parties have communicated often by email and phone, and they have met and conferred over discovery issues and deficiencies any number of times, with the plaintiff repeatedly identifying problems and the defendant repeatedly asking for more time. See, e.g., id. at ¶ 6 (d)(e)(g)-(n)(q)(s)(t)(v)(w)(x)(z)(bb)-(ii).
Id. at *2 (emphasis added).
On these facts, the court refused to extend the discovery deadliness or continue the trial, stating:
In the motion, the parties say they have been diligent…, but the facts in the motion show they have taken a desultory approach that leisurely strolls towards resolution. There have been gaps between emails and meet-and-confers, with little obvious progress made. Aside from agreement on a protective order, discovery disputes appear unresolved…. They have taken no depositions…. From the recitation in the joint motion, the defendant has been dilatory.
At the very beginning of this case, the Court reminded the parties that “Scheduling Orders will not be modified merely because the parties so agree. The Court expects the parties to promptly move the case towards final resolution and to build in time for coping with delays and obstacles, as they are a normal part of litigation.” … Here, the parties point to no surprises or unexpected developments that are out of the ordinary in a case of this nature. It is the most common thing in the world to have disagreements about ESI protocols and responses to document requests. It is not common to delay serving discovery and to take months to talk about discovery disputes without reaching resolution even as discovery deadlines loom.
Despite all of this delay, the parties ask for several more months of discovery and a concomitant delay in trial. First, the Court will not consider a motion to continue a trial date without the written consent of the parties, LR 40.1(b), which counsel have not provided here. Doc. 30.
Even if they had complied with LR 40.1(b), the motion would be denied. The touchstone of good cause under Rule 16(b) is diligence…. That is absent here, as the facts show. And after the May 2025 civil term, at which this case is currently scheduled for trial, the Court does not have a civil term until November 2025. Accommodating the request for a September trial date…, would involve a special setting of court, complicating the work of Clerk’s office staff, especially the jury administrator, and would interfere with the Court’s criminal docket. [emphasis added].
Id.
The court also condemned the fact that “the parties have taken inordinate amounts of time to meet and confer.” It wrote that:
Rule 26(g) imposes an affirmative obligation to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37…. Here, the parties have met and conferred, slowly and many times over many months. Yet they have resolved almost nothing and have not brought any of their disputes before the Court. The purpose of requiring parties to meet and confer is to “curtail undue delay and expense,”… not to cause delay or increase costs. Parties should make a sincere effort at resolving their discovery disputes and should rarely give up after one try.… But at the same time, the parties and their counsel cannot take forever to “cooperate,” fail to reach resolution, and then expect the Court to extend discovery deadlines and delay trial. Due diligence requires prompt attention to resolving discovery disputes along with attention to the deadlines in the scheduling order.” [emphasis added].
Id.
The court wrote that “here, the parties are not taking seriously their obligations to move this case forward efficiently. Given those difficulties, the Court will assist. Despite the disruption to its other business and the unnecessary work this causes the court, close oversight is required unless and until counsel and the parties demonstrate an ability to manage discovery themselves and prepare for trial in a timely fashion.” It then set milestone deadlines.
After reminding the parties that Rule 37 permits an award of attorneys’ fees for successful motions to compel, the court added:
Nothing in this Order is meant to force the parties to give up a substantially justified position on a discovery matter. If the parties have a real discovery dispute, they should bring it to the court’s attention promptly, where it can be resolved promptly. This order insures that the parties have a clear understanding of what the Court means by the word “promptly.”
Id. at *4.
It concluded:
All that said, the Court realizes the parties have gotten themselves into a pickle and need help. The Court may be willing to modify some deadlines if that can be done without delaying trial. But the inconveniences and difficulties resulting from the parties’ lack of diligence should fall on the parties, not the Court. [emphasis added].
Id.
The court then provided examples:
They might consider, for example, shortened deadlines between disclosures or for briefing on dispositive motions, an abbreviated deposition schedule, waiving summary judgment motions, engaging in final trial preparation while a summary judgment motion is pending, or a combination of these things. The parties can confer further—expeditiously this time—and make another proposal to the Court by the date set herein, if they wish. But any such proposal or agreement does not excuse compliance with the other provisions of the Order. And as the Magistrate Judge may be spending his time resolving the parties’ discovery motions in short order, the Court will handle the scheduling aspects itself, at least for the time being. [emphasis added].
Id.
Some courts have successfully used “special masters” to avoid impasses. Application of Phil Favro & Judge Peck’s Lessons on Search Design (Oct. 5, 2024); Court Appointed ESI Discovery Supervisor for ESI Protocol (Sep. 13, 2024).
Mediation has been ordered to negotiate an ESI Protocol or “discovery plan.” “Order on Proposed ESI Order” – Is There a Better Mousetrap? (Sep. 24, 2024).[2] And, the parties may voluntarily retain a mediator to assist in resolving ESI issues.
Parties have been ordered to record or transcribe their “meet and confer” sessions. Felder: Part 1 of 4: Court-Ordered Transcription of “Meet and Confer” Session (Aug. 13, 2024).
Of course, courts have ordered parties to confer and develop an ESI Protocol or “discovery plan,” and there is nothing wrong with that approach. Parties Ordered to Cooperate in Good Faith and Develop a “Discovery Plan” (May 25, 2024)(specific order detailing what must be discussed); “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024).
Hooters illustrates that there is a line that cannot be crossed and the line appears to be when cooperation no longer appears productive. When Must a Motion to Compel Be Filed? (Aug. 26, 2024).
Michael Berman, E-Discovery LLC.
Hooters illustrates that there is a line that cannot be crossed and the line appears to be when cooperation no longer appears productive. When Must a Motion to Compel Be Filed? (Aug. 26, 2024). Of course, “[t]he serving party should not run to court when the answering party states it will prepare additional responses.” Ayers v. Cont’l Cas. Co., 240 F.R.D. 216, 225 (N.D. W. Va. 2007). However, the flip side is that waiting too long to present an issue may be imprudent.
The issue was well-stated in Petersen v. Hormel Foods Corp., 2024 WL 4198555 (W.D. Wis. Sep. 16, 2024):
Defendants contend that plaintiff did not abide by his Rule 37(a)(1) duty to meet and confer. Essentially, defendants contend that plaintiff gave up too quickly on the negotiations and that his motion should be denied as a result…. Plaintiff counters that Rule 37(a)(1) does not require serial attempts at resolution before filing a motion to compel….
Plaintiff has the better of the argument. Rule 37(a)(1) requires all litigants seeking to compel discovery to certify that the movant has conferred in good faith with the party from whom they seek discovery. Fed. R. Civ. P. 37(a)(1). This requirement is not a meaningless formality. Premature motions to compel discovery are likely to fail and thus are a waste of the court’s and parties’ time. Yet, satisfying the rule does not require multiple attempts to resolve disputes, let alone exhaustive effort…. If the contrary were true, a recalcitrant party could thwart discovery by making incremental moves towards resolution, only to ultimately hold out on legitimate requests.
Petersen v. Hormel Foods Corp., 2024 WL 4198555 (W.D. Wis. Sep. 16, 2024).
In Petersen, the parties met, discussed each category of documents, reached some agreements, and met an impasse. That satisfied the “meet and confer” mandate.
Notes
[1] See, e.g., Felder: Part 1 of 4: Court-Ordered Transcription of “Meet and Confer” Session (Aug. 13 2024).
[2] In fact, the Hooters court mandated mediation for settlement; however, it does not appear to be for the purpose of agreeing to an ESI Protocol or “discovery plan.” 2024 WL 4362863 at *4.
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