Silva et al v. Wyeth Inc et al

Filing 153

RULING denying 143 MOTION to Compel Defendant Wyeth to Produce Discovery by Richard M. Silva, Susan M. Silva. Signed by Judge Holly B. Fitzsimmons on 7/30/12. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SUSAN M. SILVA and
RICHARD M. SILVA
v.
WYETH, INC., ET AL

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CIV. NO. 3:04CV1614 (WWE)

RULING ON PLAINTIFFS’ MOTION TO COMPEL [doc. #143]
At a deposition conducted on March 8, 2012, plaintiffs
contend that defendants’ counsel advised Wyeth’s former sales
representative, Jodi Clary, not to answer questions regarding
discussions between Wyeth’s counsel and Ms. Clary at a
deposition preparation meeting.

[Clary Tr. 29]. Ms. Clary’s

attorney was present at the meeting with Wyeth’s counsel.
Plaintiffs move to compel [doc. #143] a continued deposition of
Ms. Clary to answer the questions she was directed not to
answer. It is undisputed that Ms. Clary is not represented by
Wyeth’s counsel.

Plaintiffs contend that, “[t]he conversation

with Ms. Clary, her counsel and Wyeth’s counsel is not
privileged communication because Ms. Clary is no longer an
employee of Wyeth and therefore is not acting as Wyeth’s agent.”1

Rule 30 of the Federal Rules of Civil Procedure governs the
conduct of parties, deponents, and attorneys at depositions.
Pursuant to that rule, “A person may instruct a deponent not to
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[Doc. #143-1 at 3].
D. Conn. L. Civ. R. 37(a)
Rule 37, D. Conn. L. Civ. R., requires that,
before filing a motion to compel, the moving
party must confer with opposing counsel in a good
faith effort to resolve the dispute. The purpose
of this rule is to encourage the parties to
resolve discovery disputes without court
intervention. See Hanton v. Price, No.
3:04cv473(CFD), 2006 WL 581204, at *1 (D. Conn.
Mar. 8, 2006). If discussions are not successful,
the party moving to compel must submit an
affidavit certifying the attempted resolution and
specifying which issues were resolved and which
remain.
Barletta v. Quiros, No. 3:10-cv-939 (AVC)(TPS),2011 WL 6260436,
*1 (D. Conn. Dec. 15, 2011) (denying motion to compel for
failure to comply with Local Rule 37); Hanton, 2006 WL 581204,
*1 (“No motion pursuant to Rules 26 through 37, Fed. R. Civ. P.,
shall be filed unless counsel making the motion has conferred
with opposing counsel and discussed the discovery issues between
them in detail in a good faith effort to eliminate or reduce the
area of controversy, and to arrive at a mutually satisfactory
resolution.”).

Plaintiff’s motion contains no affidavit of

counsel certifying that “he or she has conferred with counsel
for the opposing party in an effort in good faith to resolve by
agreement the issues raised by the motion without the
intervention of the Court . . . .” D. Conn. L. Civ. R. 37(a);
Fed. R. Civ. P. 37(a) (“The motion must include a certification
that the movant has in good faith conferred or attempted to
answer only when necessary to preserve a privilege, to enforce a
limitation ordered by the court, or to present a motion under
Rule 30(d)(3). Fed. R. Civ. P. 30(c)(2).

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confer with the person or party failing to make disclosure or
discovery in an effort to obtain it without court action.”).
Accordingly, because plaintiffs have not complied with the
requirements of Local Rule 37, the Motion to Compel [doc. #143]
is DENIED.

The parties will discuss this issue at a meet and

confer, to be held within seven days, in an effort to resolve or
narrow this disagreement, or the issue will be deemed waived. D.
Conn. L. Civ. R. 37(a). If the issue cannot be resolved, the
parties will contact the Court to schedule a conference before
filing another motion.
SCHEDULING ORDER
The parties’ joint case management plan was filed on May 2
and ordered by Judge Eginton on May 15, 2012. [Doc. #133, 137].
All discovery, including depositions of expert witnesses, closed
on June 29, 2012. [Doc. #133 at 2].
damages analysis on July 15, 2012.

The parties exchanged a
Id. at 3.

Daubert motions are due by October 31, 2012.

Dispositive and
Id. There is no

pending motion for an extension of these deadlines. Any request
for an extension of the existing deadlines will only be granted
on a showing of good cause. The parties will request a
conference with the Court before filing a motion requesting
additional time.
This is not a recommended ruling.

This is a discovery

ruling and order which is reviewable pursuant to the "clearly

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erroneous" statutory standard of review.

28 U.S.C. ' 636

(b)(1)(A); Fed. R. Civ. P. 6(a), 6(e) and 72(a); and Rule 2 of
the Local Rules for United States Magistrate Judges.

As such,

it is an order of the Court unless reversed or modified by the
district judge upon motion timely made.
SO ORDERED at Bridgeport this 30th day of July 2012.

____/s/_______________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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