Baker v. Ephia
ORDER denying 88 Motion to Compel Discovery, without prejudice to refile after the parties hold a proper Rule 37 discovery conference. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 9/11/2017. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SERGEANT TYRANISSUIN EPHION
Before the Court is Plaintiff’s Motion to Compel Discovery (R. Doc. 88) filed on August
16, 2017. The motion is opposed. (R. Doc. 104).
The Court held oral argument on September 8, 2017. (R. Doc. 109).
The instant discovery dispute concerns written discovery propounded by Plaintiff on
February 7, 2017. (R. Doc. 88-3).
On May 15, 2017, defense counsel wrote Plaintiff’s counsel, asserting that responses to
the discovery propounded would not be provided until June 5, 2017, or 30 days after the issuance
of the Court’s Scheduling Order on May 5, 2017. (R. Doc. 104-1).
On May 25, 2017, Defendant moved for summary judgment on the basis that Plaintiff
failed to exhaust all available administrative remedies prior to filing the suit as required by 42
U.S.C. § 1997e(a). (R. Doc. 70). Plaintiff has opposed the motion. (R. Doc. 72).
On June 5, 2017, Defendant filed a motion to stay discovery pending resolution of her
motion for summary judgment. (R. Doc. 71). The Court denied the motion on July 17, 2017. (R.
On July 24, 2017, defense counsel informed Plaintiff’s counsel that the filing of
Defendant’s motion to stay discovery “inevitably stayed discovery until an Order was entered on
July 17, 2017.” (R. Doc. 104-2). Based on the foregoing, defense counsel asserted that
Defendant’s discovery responses would not be provided until August 16, 2017. (R. Doc. 104-2).
Defense counsel further asserted that Plaintiff’s counsel’s attempts at scheduling a Rule 37
discovery conference were premature and that defense counsel did not agree to a date for such a
conference. (R. Doc. 104-2).
On August 1, 2017, Defendant provided responses to Plaintiff’s discovery requests. (R.
Plaintiff’s counsel sent an email and fax to defense counsel dated August 14, 2017, which
outlined various alleged deficiencies with the discovery responses, and requested a discovery
conference to be held on August 16, 2017 at 10:00 a.m. (R. Doc. 88-7). Defendant asserts that
her counsel received the letter on August 15, 2017. (R. Doc. 104 at 3).
On August 16, 2017, Plaintiff’s counsel then attempted to hold a discovery conference as
unilaterally scheduled. (R. Doc. 88-6 at 1-2). Defense counsel responded by stating that she was
“not available for said conference today and will advise when I am available at a later date.” (R.
Doc. 88-6 at 1). When Plaintiff’s counsel sought an actual date for a discovery conference,
defense counsel responded that providing a date for a discovery conference was not a “pressing
matter” in light of the discovery deadline in late November and other work obligations. (R. Doc.
88-6 at 1).
Later that afternoon, Plaintiff filed the instant motion to compel discovery. (R. Doc. 88).
Defendant opposes the motion on the basis that the responses provided are valid, and Plaintiff
did not confer or attempt to confer with Defendant in good faith prior to filing the motion to
compel. (R. Doc. 104).
Prior to and during oral argument held on September 8, 2017, defense counsel produced
additional documents. (R. Doc. 109 at 1). Plaintiff’s counsel indicated at oral argument that
certain issues regarding Plaintiff’s motion to compel may be rendered moot in light of the
supplemental productions. (R. Doc. 109 at 1).
Law and Analysis
Rule 37(a)(1) of the Federal Rules of Civil Procedure provides that any motion to compel
“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.” Failure to comply with the meet and confer requirement may constitute sufficient
reason to deny a motion to compel. Shaw Grp. Inc. v. Zurich Am. Ins. Co., No. 12-257, 2014 WL
4373197, at *3 (M.D. La. Sept. 3, 2014); see also Forever Green Athletic Fields, Inc. v. Babcock
Law Firm, LLC, No. 11-633 (M.D. La. July 2, 2014) (denying motion to compel where defense
counsel made a single attempt by email to meet and confer and did not do so in a good faith
effort to resolve the dispute without court intervention).
Plaintiff submitted a “Rule 37 Certificate on Motion to Compel” with her motion. (R.
Doc. 88-5). In relevant part, that document certifies that (1) Plaintiff’s counsel sent a letter to
defense counsel on August 14, 2017 to schedule a discovery conference; (2) Plaintiff’s counsel
attempted to hold the discovery conference on August 16, 2017 as unilaterally scheduled, but
defense counsel would not provide a date to hold a discovery conference; and (3) Defendant had
delayed responding to the discovery requests until August 1, 2017, after the deadline to amend
the pleadings. (R. Doc. 88-5 at 1).
The foregoing certificate does not satisfy the requirements of Rule 37(a)(1). Plaintiff
does not include a certification that she “in good faith conferred or attempted to confer” with
Defendant with regard to the discovery requests at issue. Furthermore, the record indicates that
Plaintiff’s counsel unilaterally set a discovery conference just one or two days prior to the time it
was to be held, and then filed the instant motion after defense counsel stated she was unavailable
for the conference. To be clear, defense counsel was wrong in asserting that Defendant’s
discovery obligations were “stayed” by the filing of her motion to stay. Nevertheless, while the
Court finds disconcerting defense counsel’s failure to prioritize the scheduling of a discovery
conference with regard to discovery propounded in this action, the record indicates that
Plaintiff’s counsel did not attempt to schedule a discovery conference in good faith prior to the
filing of the instant motion to compel.
The Rule 37 conference is an effort to avoid judicial intervention, and the parties must
treat the informal negotiation process as a substitute for, and not simply a formalistic prerequisite
to, judicial resolution of discovery disputes. At a minimum, counsel should attempt to schedule
a conference, by phone, on a specific date and time to attempt to resolve any discovery issue
directly. The unilateral scheduling of a discovery conference just one or two days before the
scheduled conference will almost invariably be found to be made in bad faith.
Given that Defendant has produced additional documents, it is possible that some or all
of the issues raised in the instant motion to compel will be rendered moot. To the extent certain
responses remain deficient, Counsel is advised that prior to seeking any relief on a discovery
issue in this matter, the attorneys are required first to confer in an attempt to resolve such dispute
without court intervention. Should the parties be unable to resolve the dispute, any Rule 37
certificate shall specifically set forth (1) how the conference was scheduled and agreed upon, (2)
who participated in the conference, (3) when the conference took place, (4) whether the
conference was conducted by phone or in person, (5) the duration of the conference, (6) the
specific, itemized topics that were addressed at the conference, and (7) whether any issues were
resolved by the parties.
Based on the foregoing,
IT IS ORDERED that Plaintiff’s Motion to Compel Discovery (R. Doc. 88) is DENIED
without prejudice to refile after the parties hold a proper Rule 37 discovery conference.
IT IS FURTHER ORDERED that, consistent with the terms of this Order, any future
motion to compel filed in this action must include a Rule 37(a)(1) certificate setting forth the
following: (1) how the conference was scheduled and agreed upon; (2) who participated in the
conference; (3) when the conference took place; (4) whether the conference was conducted by
phone or in person; (5) the duration of the conference; (6) the specific, itemized topics that were
addressed at the conference; and (7) whether any issues were resolved by the parties.
Signed in Baton Rouge, Louisiana, on September 11, 2017.
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
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