Orr v. Illinois Tool Works Inc

Filing 13

MEMORANDUM OPINION AND ORDER that the 11 MOTION to Compel is DENIED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/23/2014. (AHI )

FILED
2014 Jan-23 AM 10:56
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
TIMOTHY ORR,
Plaintiff,
vs.
ILLINOIS TOOL WORKS, INC.
d/b/a ITW SEXTON,
Defendant.

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Civil Action No. 5:12-CV-4209-CLS

MEMORANDUM OPINION AND ORDER
This case is before the court on plaintiff’s motion to compel defendant’s
responses to plaintiff’s First and Second Requests for Production of Documents and
First Interrogatories.1 The motion was filed at 8:12 p.m. on January 10, 2014, the
final day of the discovery period.2 The Scheduling Order entered in this case on
September 10, 2013 provided that “[a]ll discovery must be commenced in time to be
completed by January 10, 2014.3
Plaintiff served defendant with his discovery requests with ample time
remaining during the discovery period.

The First Request for Production of

Documents and First Interrogatories were served on September 3, 2013,4 and the
1

Doc. no. 11.

2

See id. at 1 (time and date stamp).

3

Doc. no. 10 (Scheduling Order) ¶ 2 (alteration supplied).

4

See doc. no. 12 (Defendant’s Response to Plaintiff’s Motion to Compel), at Exhibit A

Second Request for Production of Documents was served on September 20, 2013.5
Defendant responded to plaintiff’s first requests on October 18, 2013,6 and to
plaintiff’s second requests on October 21, 2013.7 Plaintiff has raised no issue with
the timing of defendant’s responses. Instead, plaintiff’s attorney followed those
responses with an e-mail dated October 22, 2013, detailing a long list of problems he
perceived with the substance of the responses, and asking defendant to provide
supplemental responses within two weeks. Plaintiff’s attorney indicated that the email was his “attempt to ‘meet and confer’ preceding a Rule 37 motion.”8
Defendant’s attorney responded by e-mail on November 5, 2013, addressing
plaintiff’s objections.9 Plaintiff’s attorney sent defendant’s attorney another e-mail
on November 7, 2013, asking if she had any time that afternoon to talk about the
discovery requests and objections.10 Defendant’s attorney responded later that same
day, stating that she would be out of the office the rest of the day, but she would be

(Plaintiff’s First Request for Production of Documents and First Interrogatories).
5

Id. at Exhibit C (Plaintiff’s Second Request for Production of Documents).

6

Id. at Exhibit B (Defendant’s Responses to Plaintiff’s First Request for Production of
Documents and First Interrogatories).
7

Id. at Exhibit D (Defendant’s Responses to Plaintiff’s Second Request for Production of
Documents).
8

Id., Exhibit E, at 2-4 (October 22, 2013 e-mail from Adam Porter to Anna Gualano).

9

Doc. no. 12 (Defendant’s Response to Plaintiff’s Motion to Compel), Exhibit E, at 5-9
(November 5, 2013 e-mail from Anna Gualano to Adam Porter).
10

Id. at Exhibit F, at 2 (November 7, 2013 e-mail from Adam Porter to Anna Gualano).
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available to discuss the discovery responses the following day.11

Defendant

represented in its response to plaintiff’s motion to compel that plaintiff’s attorney did
not make any further efforts to contact or communicate with defendant’s attorney
after the November 7, 2013 e-mail.12
The court concludes that plaintiff’s motion to compel should be denied because
it was filed on the discovery deadline, and because plaintiff’s attorney did not
adequately confer with defendant’s attorney prior to filing the motion. By waiting
until after 8:00 p.m. on the date of the discovery deadline to file the motion to
compel, plaintiff made it impossible for all discovery to be completed by the deadline,
as required by the Scheduling Order. There is no apparent reason why plaintiff could
not have filed the motion to compel on an earlier date, as plaintiff was aware of the
deficiencies he perceived in defendant’s responses since at least October 21, 2013.
Moreover, Federal Rule of Civil Procedure 37 requires every party filing a
motion to compel discovery to “include a certification that the movant has in good
faith conferred or attempted to confer with the person or party failing to make

11

Id. at 3 (November 7, 2013 e-mail from Anna Gualano to Adam Porter).

12

Doc. no. 12, at 2-3 (“Plaintiff’s counsel’s November 7, 2013 e-mail was his last
correspondence with counsel for Sexton about these discovery issues until this motion was filed after
the close of business on the final day of the discovery period. Plaintiff’s counsel did not contact
counsel for Sexton on November 8, 2013 and has not made any effort to confer with Sexton’s
counsel about the discovery requests at issue in this motion since the November 7 e-mail exchange.”)
(footnote omitted).
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disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P.
37(a)(1). While it cannot be denied that plaintiff’s attorney initiated attempts to
confer with defendant’s attorney, he abandoned those attempts before completing
them and, thus, he did not confer in good faith with defendant’s attorney. Plaintiff’s
act of merely sending a single e-mail complaining of deficiencies with defendant’s
discovery responses does not satisfy the meet-and-confer requirement of Rule
37(a)(1), especially when defendant had specifically indicated a desire to further
discuss the issue, which plaintiff ignored. See, e.g., Velazquez–Perez v. Developers
Diversified Realty Corp., 272 F.R.D. 310, 312 (D. P.R. 2011) (holding that emails
and letters sent to defendant were insufficient to satisfy the meet-and-confer
requirement where plaintiff never agreed to meet with defendant to resolve discovery
issues); Robinson v. Napolitano, No. CIV. 08–4084, 2009 WL 1586959, at *3 (D.
S.D. June 4, 2009) (finding that a letter outlining the reasons that one party believed
that the opposing party’s discovery responses were insufficient did not satisfy the
meet-and-confer requirement); Kemp v. Harris, 263 F.R.D. 293, 297 (D. Md. 2009)
(holding that a single e-mail from defense counsel to plaintiff’s counsel was
insufficient to satisfy the meet-and-confer requirement when “[d]efense counsel
disregarded Plaintiffs’ counsel’s suggestion that the parties schedule a conference call
to address the discovery schedule”) (alteration supplied); Hays v. Adam, 512 F. Supp.
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2d 1330, 1334 (N.D. Ga. 2007) (holding that a single letter to opposing counsel “does
not constitute a sufficient effort to resolve the issue outside of court pursuant to Rule
37(a)” and a local rule); Williams v. Board of County Commissioners of Unified
Government of Wyandotte County and Kansas City, Kansas, 192 F.R.D. 698, 699 (D.
Kan. 2000) (specifying that “sending unanswered correspondence to opposing
counsel demanding discovery be produced by a specific deadline” does not satisfy the
meet-and-confer requirement); Cotracom Commodity Trading Co. v. Seaboard Corp.,
189 F.R.D. 456, 459 (D. Kan. 1999) (“[P]arties do not satisfy the conference
requirements simply by requesting or demanding compliance with the requests for
discovery.”) (alteration supplied).
While Rule 37(a)(1) does not always mandate an in-person conference, it does
require a two-way conversation, during which the discovery disputes are meaningfully
discussed in an honest, good-faith attempt to resolve the disputes.

Those

requirements were discussed in the opinion of the District Court of Nevada in Shuffle
Master, Inc. v. Progressive Games, Inc., 170 F.R.D. 166 (D.Nev. 1996), as follows:
In addition to including the actual certification with a motion
[requesting a court order] compelling discovery, the movant must have
performed as set forth in the rule [i.e., Rule 37(a)(1)]. This means a
moving party must in good faith confer or attempt to confer with the
nonresponsive party regarding the discovery dispute. The first element
of performance is “good faith” in conferring. “Good faith” under
37(a)(2)(B) contemplates, among other things, honesty in one’s purpose
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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. See Black’s Law
Dictionary 624 (5th ed. 1979). “Good faith” is tested by the court
according to the nature of the dispute, the reasonableness of the
positions held by the respective parties, and the means by which both
sides conferred. 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.
The “conferment” is the second component of performance. It
requires a party to have had or attempted to have had an actual meeting
or conference. Such an obligation is clear from the plain meaning of the
word “confer”, which derives from the Latin roots com meaning
“together” and ferre meaning “to bring.” Hence, the word literally
translates as “to bring together.” The Court therefore finds that in order
to bring a proper motion to compel under Rule 37(a)(2)(B), a moving
party must personally engage in two-way communication with the
nonresponding party to meaningfully discuss each contested discovery
dispute in a genuine effort to avoid judicial intervention. See Nevada
Power Co. v. Monsanto Co., 151 F.R.D. 118 (D.Nev. 1993).
170 F.R.D. at 172 (alterations and emphasis supplied). Here, plaintiff forestalled any
possibility of a meaningful discussion of his objections to defendant’s discovery
responses by neglecting to contact defendant for a follow-up conversation.
Accordingly, plaintiff did not satisfy the meet-and-confer requirements of Rule
37(a)(1), and his motion to compel is DENIED.

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DONE this 23rd day of January, 2014.

______________________________
United States District Judge

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