LOPAREX, LLC v. MPI RELEASE, LLC et al

Filing 288

ORDER denying Pltf's 271 Motion to Compel (see Order for details). Signed by Magistrate Judge Tim A. Baker on 5/16/2011. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

LOPAREX, LLC,
Plaintiff,
vs.
MPI RELEASE TECHNOLOGIES, LLC,
GERALD KERBER, and
STEPHAN ODDERS,
Defendants.

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1:09-cv-1411-JMS-TAB

ORDER DENYING PLAINTIFF’S MOTION TO COMPEL
I.

Introduction
The word confer derives from the Latin conferre—“to bring together”—and means to

compare views or take counsel. In this district, Local Rule 37.1 requires counsel to confer in
good faith before submitting a discovery dispute to the Court, and encourages counsel to contact
the assigned Magistrate Judge before filing a formal discovery motion. Plaintiff’s counsel in this
case ignored not only Local Rule 37.1, but also the Court’s repeated warnings about increasing
incivility and moved to compel without conferring in good faith. For these reasons, as more
fully set forth below, the Court denies Plaintiff’s motion to compel. [Docket No. 271.]
II.

Background
This trade secrets case is before the Court on another discovery dispute despite the

Court’s repeated admonitions encouraging cooperation. [E.g., Docket Nos. 44, 188.] As
recently as March 21, 2011, the Court concluded an entry denying Plaintiff’s motion for
sanctions with the following observation:
[W]hat should be a straightforward trade secrets case has resulted in an
abnormally high number of discovery disputes, not to mention multiple motions

for sanctions. Counsel on both sides are reminded that while they can and should
zealously advocate for their clients, zealous advocacy does not equate with a
total-war mentality toward litigation.
[Docket No. 270 at 8.]
This warning apparently fell on deaf ears. At 12:12 p.m. on March 23—less than fourtyfour hours after the Court’s March 21 reminder—Plaintiff’s counsel emailed Defendants’
counsel threatening to file a motion to compel if Defendants failed to stipulate to additional
discovery before 9:00 the next morning. [Docket No. 274, Ex. 2.] Defendants’ counsel
responded hours later with several meaningful objections and urged Plaintiff’s counsel to heed
the Court’s recent admonition. [Id.]
That warning also fell on deaf ears, and Plaintiff’s counsel filed this motion to compel.
[Docket No. 271.] The motion did not include any statement of informal attempts to resolve the
dispute, and Plaintiff’s counsel have not replied to Defendants’ argument that this failure
precludes relief.
III.

Discussion
Local Rule 37.1, amended effective January 1, 2011, sets out this Court’s expectations of

counsel involved in discovery disputes:
(a) Prior to involving the court in any discovery dispute, including disputes
involving depositions, counsel must confer in a good faith attempt to resolve the
dispute. If any such dispute cannot be resolved in this manner, counsel are
encouraged to contact the chambers of the assigned Magistrate Judge to
determine whether the Magistrate Judge is available to resolve the discovery
dispute by way of a telephone conference or other proceeding prior to counsel
filing a formal discovery motion. When the dispute involves an objection raised
during a deposition that threatens to prevent completion of the deposition, any
party may recess the deposition to contact the Magistrate Judge’s chambers.
(b) In the event that the discovery dispute is not resolved at the conference,
counsel may file a motion to compel or other motion raising the dispute. Any
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motion raising a discovery dispute must contain a statement setting forth the
efforts taken to resolve the dispute, including the date, time, and place of any
discovery conference and the names of all participating parties. The court may
deny any motion raising a discovery dispute that does not contain such a
statement.
An electronic ultimatum is not a good faith attempt to resolve a discovery dispute.1 Rather, the
local rule contemplates an actual meeting with a date, time, and place—whether by telephone,
videoconference, or (if counsel’s location permits) preferably face-to-face. An old-fashioned
chat over coffee might prove especially productive. Real-time interaction often provides the best
forum for hashing out disputes, whereas a faceless exchange of carefully worded and often
pointed emails usually solves little except perhaps providing a false moment of triumph to the
person pressing the “send” button.
If a more interactive and meaningful meeting is infeasible, Local Rule 37.1 requires, at
the very least, an attempt to fully exchange views before filing discovery motions. In addition,
the recent amendments to Local Rule 37.1 encourage counsel to seek the assistance of the
assigned Magistrate Judge before filing a formal discovery motion. Plaintiff’s counsel ignored
the opportunity presented by this amended rule in the same manner that Plaintiff’s counsel
ignored the Court’s warnings.
Plaintiff’s counsel’s email missive does not satisfy the local rule. Despite its tone, the
March 23 email was met with level-headed objections from Defendants that merited further
discussion, preferably via a verbal conversation. The parties’ contentious history provides no

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This is not the first time these parties have heard this message. [Docket No. 44 at 1 n.1
(“A meet-and-confer is not an empty and formulaic process that can be accomplished by simply
mailing or faxing a letter to the opposing party. It requires that the parties in good faith converse,
confer, compare views, consult and deliberate, or in good faith attempt to do so.”) (internal
quotation omitted).]
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excuse for skipping this step. Even if relations between counsel have deteriorated to the point
where picking up the phone is a challenge, “[i]t is precisely when animosity runs high that
playing by the rules is vital.” [Docket No. 276 at 10.] Had further discussions failed, either
counsel could have contacted the Magistrate Judge for prompt guidance on what appears to be a
relatively simple dispute. The Court therefore denies Plaintiff’s motion to compel for
noncompliance with the local rule. Any successive motion will likewise be denied unless it is
preceded by an actual meeting of counsel, preferably in person, and, if the meeting of counsel
fails to resolve the discovery dispute, a request to involve the assigned Magistrate Judge.
IV.

Conclusion
Plaintiff’s motion to compel [Docket No. 271] is denied.
Dated:

05/16/2011
_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

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Copies to:
Lisa A. Baiocchi
JACKSON LEWIS LLP
[e-mail]

Lawrence Bryant Shulman
JACKSON LEWIS LLP
[e-mail]

Donald E. Knebel
BARNES & THORNBURG LLP
[e-mail]

Aaron M. Staser
BARNES & THORNBURG LLP
[e-mail]

Michael W. Padgett
JACKSON LEWIS LLP
[e-mail]

Lynn C. Tyler
BARNES & THORNBURG
[e-mail]

Charles W. Pautsch
JACKSON LEWIS LLP
[e-mail]

Melissa S. Vare
JACKSON LEWIS LLP
[e-mail]

Jennifer Lynn Schuster
BARNES & THORNBURG LLP
[e-mail]

Richard P. Winegardner
BARNES & THORNBURG LLP
[e-mail]

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