[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Felder v. MGM National Harbor, LLC, 2024 WL 3690779, at *1 (D. Md. Aug. 7, 2024)(Simms, J.), plaintiff, acting pro se, sued her employer, alleging discrimination.
The Court “presided over a discovery dispute hearing related to Plaintiff’s motions to compel interrogatory requests and requests for production of documents, and related to a motion for a protective order filed by the Defendant.”
The Felder Court entered an order mandating that a court reporter transcribe the next, Court-ordered meet-and-confer session.1
It is not auspicious when a court writes that “from time to time, in contentious cases… courts have ordered that the parties record – by video or court reporter… their… meet-and-confer sessions for the court’s review.” Sometimes Discovery Disputes Do Not Bring Out the Best in Us – Part II (Jun. 20, 2024)(emphasis added). However, that is what occurred in Felder. The Court wrote:
During the hearing, the undersigned made several factual findings, including: (1) that [the] parties mutually had engaged in an insufficient meet and confer session in an attempt to resolve Plaintiff’s outstanding discovery requests; (2) the undersigned was concerned that: (a) many of the 117 document requests propounded by Plaintiff were not truly relevant to the sole claim remaining in this case, nor were they really proportional to the needs of the case, and (b) many of Defendant’s objections to the interrogatories were boilerplate; (3) because the undersigned found problematic the tone and tenor of both parties’ discovery dispute filings—and to get both sides back on track so that discovery could end—they would be required to file attestation forms certifying familiarity with and an agreement to abide by the Federal Rules of Civil Procedure, including Rule 26(b)(1), and the Local Rules of the District of Maryland (D. Md. 2023); (4) both sides would be required to attend a meet and confer session, with a court reporter present to generate a transcript, and both sides would need to make good faith efforts resolve the outstanding discovery issues; (5) during that meet and confer session, Plaintiff would have to demonstrate a sufficient factual predicate for her requests and the relevance and proportionality of those discovery requests, and the Defendant would be given the opportunity to object to the requests, but those objections could not be boilerplate. (ECF No. 72). Next, the undersigned specifically directed the parties to identify a timetable for completion of all discovery, including taking any depositions. (Id.). Regarding depositions, the undersigned cautioned Plaintiff that if she wanted to take any depositions, she was to communicate with the Defendant’s counsel about the same. (Id.). [emphasis added].
In Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024) (Simms, J.).
Subsequently, the parties filed attestation forms stating that they had conferred for about 11 hours and resolved all discovery disputes. After several additional extensions of time and “significant” supplementation by defendant, however, plaintiff again alleged deficiencies.
…[the] parties mutually had engaged in an insufficient meet and confer session in an attempt to resolve Plaintiff’s outstanding discovery requests and (4) both sides would be required to attend a meet and confer session, with a court reporter present to generate a transcript, and both sides would need to make good faith efforts resolve the outstanding discovery issues…
Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(emphasis added).
The transcript of the parties meet-and-confer became important when disputes arose after that conference.
The Court wrote:
On October 3, 2023, the undersigned presided over a post-discovery telephonic status conference…. During that conference, Plaintiff repeatedly articulated in general, non-specific terms that she believed that “many falsehoods” and “gamesmanship” had been committed by the Defendant during the discovery process…. After repeated inquiry by the Court into Plaintiff’s allegations, ultimately Plaintiff did articulate that she was not interested in re-opening discovery based on the so-called bad conduct; rather, she was interested in filing a motion for sanctions. Because the Court has a duty to preserve the integrity of the judicial process and to potentially consequence a party who exhibits bad faith in the process, Plaintiff was granted leave to file a motion for sanctions, so that she could clearly articulate and demonstrate the need for sanctions.
In Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024) (Simms, J.).
Three later blogs will address the Court’s resolution of some of those issues. This blog focuses on the transcript of the conference of the parties.
Plaintiff contended that defendant abused the discovery process and the Court wrote that: “Plaintiff seems to argue that some of the misconduct arose after the parties were required to file attestation forms, which she believes signifies that Defendant has violated a court order.”
The Court reiterated that: “As a preliminary matter, it bears repeating that it was only after reviewing the parties’ written filings related to Plaintiff’s motion to compel that the undersigned found that both sides were not on track related to their discovery obligations.” [emphasis in original]. It then wrote:
The attestation forms were completed in March 2023, i.e., before the parties April 10, meet and confer session….
Next, the undersigned has reviewed the entire transcript of the meet and confer session…. The undersigned finds that, regrettably, Plaintiff does not appear to fully understand the Court’s rulings. The undersigned further finds that despite the Court’s admonition to the Plaintiff, there were many of her discovery requests that were not relevant nor proportional to the case. Plaintiff misconstrued the undersigned’s order to permit her to obtain everything that she asked for, regardless of relevance. Defendant appropriately and reasonably questioned the relevance and proportionality of Plaintiff’s requests, as the Court ordered (during its March 2023 hearing) that Defendant could do. Defendant repeatedly offered to supplement its responses to Plaintiff’s discovery requests, and repeatedly sought reasonable compromises. The Court did not find that either side behaved uncivilly or act in bad faith during the meet and confer session. See, e.g., ECF No. 90-6, pp.11-14, 17, 20-21, 31, 34-35, 36-39, which are Tr. 19-23, 24-27, 28-29, 35-39, 41, 42, 43, 44-46, 47-48, 77-78, 105-108, 202-203, 207, 231-238, 250-251, 259-260, 263-270, 274. In sum, after reviewing the transcript, the undersigned did not come away with the feeling that Defendant engaging in bad faith or gamesmanship. Instead, the undersigned was left with the impression that Defendant “reset” its behavior, if you will.
With that in mind, below, the Court analyzes the various issues raised by Plaintiff. [emphasis added].
In Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024) (Simms, J.).
Court orders for recording of “meet and confer” sessions has a long pedigree, going back to at least 2008. My first recollection of hearing about such an order came from a presentation by the late Hon. David J. Waxse:
When electronic discovery disputes get heated in his courtroom, Magistrate Judge David J. Waxse of the U.S. District Court in Kansas has a simple strategy: “If someone comes to me and says, ‘So and so is impossible to deal with and we can’t get a deal done,’ I tell them, ‘Well, videotape the next [discovery conference] and let me watch it to see what’s going on.’
“I’ve never had to watch one of those videotapes. Just the idea that I’ll be watching it seems to put them all on their best behavior and suddenly they have an agreement.”
Michael Berman, referencing and quoting the late Hon. David J. Waxse.
J. Krause, Rockin’ Out the E-Law (abajournal.com) (July 1, 2008)(emphasis added); accord S. Nelson, et al., Judge Waxse on Reducing Combat in E-Discovery | Sensei Enterprises, Inc. (Mar. 30, 2010)(“lawyers are like particles in physics – they change when observed.”).
Judge Waxse is not alone in that approach. For example, one court imposed “the drastic measure” of ordering a videotaping of the parties’ conference. Blair v. CBE Grp. Inc., 2015 WL 3397629, at *12 (S.D. Cal. May 26, 2015), subsequent decision, 309 F.R.D. 621, 626 n. 3 (S.D. Cal. 2015)(“The situation became so bad that the Court had to employ a rare, unusual, and reluctant tactic. In an effort to reign the parties in and ‘force’ them to at least meet and confer, the Court ordered the parties to videotape their meet and confer session, which they did.”); accord Sharon D. Nelson, John W. Simek, “Through A Glass, Darkly,” Or. St. B. Bull., October 2013, at 62.
While Judge Waxse stated that His Honor did not ever have to watch one of the video recordings, other courts have done so and, in one case, “the undersigned has heard counsel’s ‘back and forth.’” Brusamonti v. XTO Energy Inc., 2023 WL 6162832, at *1 (W.D. Pa. Sept. 21, 2023); Jemison v. Phillips-Van Heusen, 2008 WL 11518519, at *1 (D.N.J. Sept. 22, 2008).
What did the recorded meet-and-confer in Felder reveal?
- Defendant explained to Plaintiff: “We have gone back and asked our client about security footage, and there is none. So I’m happy in terms of the supplement, if you would still like a supplemental response, because that’s what we indicate here in the response, that there are no responsive documents…..” 2024 WL 3690799 at *5.
- “Defendant also explained that the retention policy is that when there is active notice of litigation, then from that point any video would be retained. Otherwise, the normal practice and procedure was to regularly recycle/record over video.” Id. at *6.
- “It is worth noting that during the April 2023 meet and confer session, Defendant’s counsel notified Plaintiff that if she wanted to depose current employees of Defendant, she needed to facilitate the same through counsel…. When so told, Plaintiff summarizes her understanding of this protocol, and then she says ‘Okay. That’s perfect. That will work. That’s great.’” Id. at *13. Plaintiff later complained of lack of depositions.
- Plaintiff complained about the declaration of Ms. Wilburn, however: “Plaintiff has not put before the undersigned any evidence that she sought to depose Ms. Wilburn, even though her name came up repeatedly during the April 10 meet and confer.” Id. at *20. “The record before the Court also reflects that the during the parties’ April meet and confer session, they discussed Wilburn repeatedly. See, e.g., ECF No. 90-6, Tr. 29, 32, 37, 98, 159, 161, 179, 180, 219, 220, 225, 231, 233, 238, 319, 331, 332.” Id.
- Plaintiff made complaints about Mr. Taylor, an employee of defendant: “Reviewing the transcript of the April 2023 meet and confer session, the Court finds that Defendant’s counsel told her at that time that if she wanted to contact current employees, that she needed to go through counsel. (ECF No. 90-6, p. 44; Tr. 321-323). When so told, Plaintiff summarizes her understanding of this protocol, and then she says ‘Okay. That’s perfect. That will work. That’s great.’ (ECF No. 90-6, p. 44; Tr. 323). Thus, Plaintiff was on notice in April that if she wanted to depose Defendant’s employees that she would need to contact counsel.” Id. at *21.
Obviously, the transcript of the meet-and-confer was significant in resolving the discovery issues. The Court added:
Finally, Plaintiff complains that Defendant has engaged in misconduct by not “paying for and providing the Plaintiff with the original copy of the transcript from the court-ordered Meet and Confer held on April 10th with a Court Reporter.”… The record reflects that the Court did order the Defendant was directed to cover the costs of the court reporter for the meet and confer…. Although it could be perceived as unkind of the Defendant to not automatically forward a copy of said transcript to Plaintiff when it ordered it, there is no evidence before me that Plaintiff expressed interest in receiving a transcript until May.
Felder v. MGM National Harbor, LLC, 2024 WL 3690779 at *21-22, (D. Md. Aug. 7, 2024) (Simms, J.)
I have often thought about – – and discussed – – bringing a court reporter to a meet-and-confer when I anticipated problems; however, I never did it and could see reasons for an opponent to successfully object to any such effort. If recording by any means (audio, video, or court reporter) became routine, I suggest that it could chill and impede the negotiation process. As such, I would not do so with prior court authorization.2
Nevertheless, the Court-ordered process in Felder appears to have worked. This is the first in a four-part blog on Felder.
Notes
[1] While “meet-and-confer” is the commonly-used term, the phrase used in the Federal Rules of Civil Procedure is a “conference of the parties.”
[2] In Kob v. Cnty. of Marin, 2009 WL 3706820, at *6 (N.D. Cal. Nov. 3, 2009), a request for a videotaped meet and confer was denied; however, defendants were permitted to have a court reporter present.
Next Blog Posts in this Series
Felder Part 2 of 4: Defendant Sanctioned for Late Cancellation of Depositions
Felder Part 3 of 4: Defendant’s Overwriting of Video Footage After 14 Days Held Not to be Spoliation
Felder Part 4 of 4: Was the Felder Defendant’s 14-Day Video Overwriting Policy Defensible?
Takeaways From Felder v. MGM National Harbor – EDRM
