Fed. R. Civ. Pro. 37(a)(1): How much "Meet and Confer" is Enough?

How much time and effort does a party have to expend to comply with the requirement, under Federal Rule of Civil Procedure 37(a)(1)

 Courts in the Fourth Circuit make clear that Rule 37(a)(1) requires meaningful and good faith efforts to avoid discovery disputes. “There is no need for the Court to reach the merits of Defendant’s Motion to Compel because Defendant failed to confer with [Dixon] prior to filing the Motion as required by Federal Rule of Civil Procedure 37.”  Patrick v. Teays Valley Trustees, LLC, 297 F.R.D. 248, 266 (N.D. W.Va. 2013).

  Rule 37(a)(1) mandates that any motion to compel discovery “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” 

Good faith under Rule 37 “contemplates, among other things, honesty in one’s purpose to meaningfully discuss the discovery dispute, freedom from intention to defraud or abuse the discovery process, and faithfulness to one’s obligation to secure information without court action.... Accordingly, good faith cannot be shown merely through the perfunctory parroting of statutory language on the certificate to secure court intervention; rather it mandates a genuine attempt to resolve the discovery dispute through non-judicial means. Teays Valley 297 F.R.D. at 266-67.  

            Other federal courts ( favorably cited in the Fourth Circuit) have elaborated on the requirements for personal consultation under Rule 37:

“The good faith conferment language incorporated into Rule 37 was based in part due on the successful experience of this and other federal districts in resolving discovery disputes. Previously, the District of Nevada local rules required a party moving to compel discovery to initiate sincere, "personal consultation," either in person or by telephone.” 

Shuffle Master v. Progressive Games, 170 F.R.D. 166, 172 (D. Nev. 1996) discussed in Teays Valley supra and Tustin v. Motorists Mut. Ins. Co., 2009 U.S. Dist. LEXIS 95947 (N.D. W. Va. Oct. 14, 2009)

           

A draft Motion to Compel  (along with the terse cover letter)  does not meet the standard for a meaningful meet and confer on discovery. This is clear from the case law.

“The mere sending of a letter demanding supplemental responses to interrogatories was insufficient. Id. Moreover the personal consultation requirement had to be more than just a "formalistic prerequisite" to judicial resolution of a discovery dispute,    but rather a "sincere effort" where both parties presented the merits of their respective positions and meaningfully assessed the relative strengths” of each”Shuffle Master v. Progressive Games, 170 F.R.D.  at 172 see also Teays Valley 297 F.R.D. at 67 Those discussions must continue until the parties reach an impasse. Hasbro, Inc. v. Serafino, 168 F.R.D. 99, 101 (D. Mass. 1996) (“It is not up to the court to expend its energies when the parties have not sufficiently expended their own.”); Burton v. R.J. Reynolds Tobacco Co., 203 F.R.D. 624 (D. Kan. 2001) (denying motion to compel without prejudice until parties negotiated to impasse). If the movant has not satisfied this requirement, then its motion to compel should be denied. Shuffle Master, supra, at 173; Hasbro, supra, at 102; see also Doe v. National Hemophilia Foundation, 194 F.R.D. 516, 521 (D. Md. 2000) (motion to compel discovery denied due to movant’s failure to meet and confer).

In conclusion, Courts are not impressed with formalistic, perfunctory "meet and confer" efforts.  The efforts must be meaningful and open.