Ehrlich v. Union Pacific Railroad Co.

Filing 50

MEMORANDUM AND ORDER denying 39 Defendant Union Pacific Railroad Company's Motion to Strike Plaintiff's Motion to Compel or, in the Alternative, Motion to Stay Deadline to Respond to that Motion. The Court, however, will give the partie s additional time to confer about the issues raised in Plaintiff's Motion to Compel (ECF No. 36 ), extends Defendant's deadline for responding to the Motion until July 7, 2014, and instructs/orders counsel for both parties to confer in good faith in an attempt to resolve the issues. Signed by Magistrate Judge Teresa J. James on 6/19/2014. (byk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MANDY EHRLICH,
Plaintiff,
vs.
UNION PACIFIC RAILROAD
COMPANY,
Defendant.

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Case No. 13-2142-JTM-TJJ

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Union Pacific Railroad Company’s Motion
to Strike Plaintiff’s Motion to Compel or, in the Alternative, Motion to Stay Deadline to
Respond to that Motion (ECF No. 39). Defendant requests that the Court strike the Motion to
Compel (ECF No. 36) filed by Plaintiff on May 7, 2014 on the grounds that Plaintiff failed to
confer concerning the matter in dispute prior to filing her motion as required by D. Kan. Rule
37.2, and because the motion is untimely under D. Kan. Rule 37.1(b).
I.

Duty to Confer
The duty to confer prior to filing a motion is contained in Federal Rule of Civil Procedure
37(a)(1) and D. Kan. Rule 37.2. Under Fed. R. Civ. P. 37(a)(1), a 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.”

In conjunction with Fed. R. Civ. P. 37, District of Kansas Local Rule 37.2 requires the
attorney for the party filing the discovery motion to confer with opposing counsel prior to filing
the motion. It provides:
The court will not entertain any motion to resolve a discovery dispute pursuant to
Fed. R. Civ. P. 26 through 37, . . . , unless the attorney for the moving party has
conferred or has made reasonable effort to confer with opposing counsel
concerning the matter in dispute prior to the filing of the motion. Every
certification required by Fed. R. Civ. P. 26(c) and 37 and this rule related to the
efforts of the parties to resolve discovery or disclosure disputes must describe
with particularity the steps taken by all attorneys to resolve the issues in dispute.
A “reasonable effort to confer” means more than 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.
The purpose of the conferring requirements is to encourage the parties to resolve their
discovery disputes prior to resorting to judicial intervention.1 Meet and confer requirements are
not satisfied “by requesting or demanding compliance with the requests for discovery.”2 The
parties must determine precisely what the requesting party is actually seeking; what responsive
documents or information the discovering party is reasonably capable of producing; and what
specific, genuine objections or other issues, if any, cannot be resolved without judicial
intervention.3
In her motion to compel, Plaintiff describes the steps she took to resolve the issues in
dispute and attaches copies of the conferring correspondence. She indicates that after reviewing
Defendant’s March 21, 2014 responses and documents to her discovery requests, she mailed a
1

Layne Christensen Co. v. Purolite Co., No. 09-2381, 2011 WL 381611, at *2 (D. Kan. Jan. 25,

2

Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 456, 459 (D. Kan. 1999).

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Id.

2011).

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golden rule letter to Defendant on April 10, 2014, with a deadline to respond of April 16, 2014.
In that letter, Plaintiff stated her position on the discovery disputes and requested that Defendant
withdraw its objections and provide a privilege log. When Plaintiff did not receive a response
from Defendant by the deadline, her counsel sent an email to Defendant’s counsel on April 21,
2014, asking whether he intended to respond to the golden rule letter. After no response was
received from Defendant, Plaintiff then filed her motion to compel on May 7, 2014.
Defendant contends that Plaintiff has failed to comply with the conferring requirements
of D. Kan. Rule 37.2 prior to filing her motion. It admits that Plaintiff sent a golden rule letter
on April 10, 2014, but that letter concluded with a unilaterally set deadline of six days later for it
to capitulate to Plaintiff’s discovery demands. According to Defendant, the only other
communication regarding the discovery responses came on April 21, 2104, which was Plaintiff’s
deadline to file any motion to compel regarding the subject discovery responses. That email
communication offered no resolutions or possible accommodations. Rather, it asked if Defendant
had “any response to [the] golden rule letter,” and demanded that Defendant produce a privilege
log and withdraw all of its objections within six days. Defendant argues that this is not enough
to satisfy the conferring requirements under the local rule. Plaintiff’s attorney never called its
counsel, requested a face-to-face meeting, or made any other attempt to resolve the discovery
dispute as required by the local rule.
After reviewing the conferring correspondence attached to Plaintiff’s motion, the Court
finds that Plaintiff has not made sufficient efforts to confer before filing her motion to compel.
Although Plaintiff’s counsel sent a four-page golden rule letter to defense counsel dated April
10, 2014, identifying the eleven document requests for production that Plaintiff found lacking,

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Plaintiff only gave Defendant’s counsel six days until April 16, 2013, in which to respond. Then
five days later, on April 21—the day her motion to compel was due—Plaintiff’s counsel emailed
defense counsel with a two-sentence inquiry whether counsel had any response to the golden rule
letter. After apparently not hearing from Defendant, Plaintiff then filed her motion two weeks
later on May 7, 2014 without having made any further attempts to email Defendant’s counsel or
to contact him by telephone. The Court concludes that one letter with one email follow-up—
without any attempt to call or actually converse with Defendant’s counsel—does not constitute
sufficient reasonable attempts to confer before filing the motion to compel. Although Plaintiff
should not be required to spend significant time waiting for a response from Defendant’s counsel
to her letter and email follow-up, Plaintiff should have made additional efforts to contact
Defendant’s counsel before filing her motion. As set out in D. Kan. Rule 37.2, a “reasonable
effort to confer” means that the moving party must make good faith attempts to “converse,
confer, compare views, consult, and deliberate” concerning the matter in dispute.
This is not to suggest or imply that the Court condones Defendant’s unresponsiveness.
Although Plaintiff has not sufficiently conferred as required by D. Kan. Rule 37.2, the Court,
declines to strike Plaintiff’s motion to compel, given Defendant’s failure to respond to Plaintiff’s
preliminary attempts to confer. The Court will instead give the parties additional time to confer
concerning the issues raised in Plaintiff’s motion to compel, by extending Defendant’s deadline
to respond to Plaintiff’s motion. Counsel for both parties are instructed to confer in good faith
regarding the issues that are the subject of the motion to compel.

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II.

Timeliness of Plaintiff’s Motion to Compel
Defendant also argues that Plaintiff’s motion to compel should be stricken as untimely
filed. Defendant served its responses and objections to Plaintiff’s subject discovery on March
21, 2014. Thus, under D. Kan. Rule 37.1(b), because Defendant served its discovery response on
March 21, 2014, any motion to compel regarding those discovery responses was required to be
filed within 30 days, or in this case, by April 21, 2014.
Plaintiff admits that her motion is untimely, but asks that Defendant’s Motion to Strike
her motion be denied because she acted with excusable neglect in determining the deadline to
respond. She states that she acted in good faith but miscalculated the deadline to file a motion to
compel while attempting to work through the dispute with Defendant. She points out that her
motion was only 14 days late and there is no prejudice to the Defendant by the late filing.
Under the circumstances here, the Court declines to strike Plaintiff’s motion to compel on
the grounds that it was not filed within 30 days of the date Defendant served its discovery
responses that are the subject of the motion. Plaintiff has shown excusable neglect for the
untimely filing by her counsel’s miscalculation of when the 30-day deadline began to run. And,
as Plaintiff points out, there appears to be no prejudice to Defendant by this short delay. Finally,
part of the delay can be attributed to Defendant’s actions in failing to respond to Plaintiff’s two
attempts to confer regarding the issues raised in the motion. The Court therefore declines to
strike Plaintiff’s Motion to Compel as untimely.
IT IS THEREFORE ORDERED THAT Defendant Union Pacific Railroad Company’s
Motion to Strike Plaintiff’s Motion to Compel or, in the Alternative, Motion to Stay Deadline to
Respond to that Motion (ECF No. 39) is DENIED. The Court, however, will give the parties

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additional time to confer about the issues raised in Plaintiff’s Motion to Compel (ECF No. 36),
extends Defendant’s deadline for responding to the Motion until July 7, 2014, and
instructs/orders counsel for both parties to confer in good faith in an attempt to resolve the
issues.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 19th day of June 2014.
s/ Teresa J. James
Teresa J. James
United States Magistrate Judge

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