Williams v. Central Transport International, Inc.

Filing 80

MEMORANDUM AND ORDER re: 58 IT IS HEREBY ORDERED that defendant's motion to compel plaintiff to supplement its responses to its first set of interrogatories, requests for production of documents, and requests for admission [Doc. #58] is denied.. Signed by District Judge Carol E. Jackson on 11/17/14. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GLENN WILLIAMS, on behalf of himself
and all others similarly situated,

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Plaintiff,
vs.
CENTRAL TRANSPORT
INTERNATIONAL, INC.,
Defendant.

Case No. 4:13-CV-2009 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on defendant’s motion to compel plaintiff to
supplement its responses to defendant’s first set of interrogatories, requests for
production of documents, and requests for admission. Plaintiff has filed a response
in opposition, and the issues are fully briefed.

As a threshold matter, plaintiff

asserts that the instant motion is procedurally deficient because defendant has
failed to comply with Rule 37 of the Federal Rules of Civil Procedure. Rule 37(a)(1)
requires that a party moving for an order compelling discovery “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.” Similarly, Local Rule 37-3.04 requires discovery motions to
include a statement that movant’s counsel conferred in good faith with opposing
counsel, but that a resolution could not be agreed upon. Defendant has not met
these requirements.
On August 22, 2014, defendant propounded its first set of interrogatories,
requests for production, and requests for admission in this action. Plaintiff served
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its responses on September 24th.

Per the existing case management order,

defendant had 15 days, or until October 9th, to file any motions relating to that
discovery.

On October 6th, the parties held a telephone conference regarding

discovery in a state lawsuit arising from the same underlying facts, but with
different legal claims.

In the state proceeding, defense counsel had provided

plaintiff’s counsel with a 9-page long letter outlining the perceived deficiencies in
plaintiff’s discovery responses to the state discovery requests.

In the parties’

October 6th phone conference and follow-up email exchange, defendant noted that
it also had “mostly the same issues” with the federal discovery.

E-mail from

Sheena Hamilton, Def.’s Counsel, to Michael Kruse, Pl.’s Counsel (Oct. 6, 2014,
02:48 P.M. CST) [Doc. #63-1]. Upon defendant’s request, plaintiff consented to a
14-day extension of the deadline for defendant to file discovery motions, or until
October 22nd, on the condition that the parties would use the additional time to
engage in good faith attempts to expediently resolve the issues that defendant
intended to raise pertaining to the federal discovery.

E-mail from Kruse to

Hamilton (Oct. 6, 2014, 05:03 P.M. CST) [Doc. #63-1].
On October 20, 2014, two days before the extension deadline, defense
counsel called and left a voice message for plaintiff’s counsel, asking whether
plaintiff intended to provide supplemental discovery responses in this case as it had
in the state action. Plaintiff’s counsel responded the next day by email, stating that
they remained open to discussing and resolving any potential issues regarding
plaintiff’s discovery responses, but had not received any indication of defendant’s
positions on the responses it believed required supplementation. Defense counsel
again replied by stating that “the issues with the state and federal discovery are by

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and large the same.” E-mail from Hamilton to Kruse (Oct. 21, 2014, 03:01 P.M.
CST) [Doc. #63-2].

Plaintiff’s counsel responded by stating that the state and

federal matters “are separate actions and should be treated as such to prevent any
confusion between the actions . . . . The cases are a[t] different stages of litigation
and although there are similarities between the discovery requests and responses in
both actions, they are not identical.”

E-mail from Kruse to Hamilton (Oct. 22,

2014, 02:48 P.M. CST) [Doc. #63-2]. Plaintiff also stated that it would not agree to
an additional extension of time to file discovery motions, since defendant had failed
to provide information regarding its perceived deficiencies in the federal matter
during the first extension of time.

Defendant proceeded to immediately file the

instant motion.
The meet-and-confer requirement is “not an empty formality.” Robinson v.
Napolitano, No. Civ. 08-4084 (VLD), 2009 WL 1586959, *3 (D.S.D. 2009). “Good
faith” requires “a genuine attempt to resolve the discovery dispute through nonjudicial means,” and “conferment” requires the parties “to have had an actual
meeting or conference.”

Shuffle Master, Inc. v. Progressive Games, Inc., 170

F.R.D. 166, 171 (D. Nev. 1996). Therefore, prior to filing a motion to compel, “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.”

Id.

Unilateral communication

demanding that the other side comply with a discovery request does not satisfy the
requirement.

Id. at 172; see also Alexander v. Federal Bureau of Investigation,

186 F.R.D. 197, 198-99 (D.D.C. 1999) (stating that calling opposing counsel and
leaving a vague message two hours before filing the discovery motion does not

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satisfy the meet-and-confer requirement).

Nor is the requirement satisfied by

communication in which a party indicates a motion to compel will be filed if the
opposing party does not comply with discovery requests.

Bolger v. District of

Columbia, 248 F.R.D. 339, 343-44 (D.D.C. 2008).
Despite plaintiff’s counsel’s requests for information, defense counsel failed
to clearly indicate the issues it had with plaintiff’s produced discovery in this case.
Cf. Kirschenman v. Auto-Owners Ins., 280 F.R.D. 474, 479 (D.S.D. 2012) (finding a
good faith effort to meet and confer when, over the course of 17 months, plaintiffs’
counsel wrote, emailed, or called defense counsel 12 times attempting to work out
the parties’ differences and, at defense counsel’s request, wrote a seven-page letter
itemizing and explaining the issues disputed); RLI Ins. Co. v. Conseco, Inc., 477 F.
Supp. 2d 741, 745-46 (E.D. Va. 2007) (finding the movant had satisfied the meetand-confer requirement by offering several suggestions for compromise by letter
and phone, and by supplying the resisting party with a list of specific questions the
movant would be seeking to compel). Defense counsel instead repetitively insisted
that the discovery issues in the state and federal cases were substantially similar,
even though the cases involve different legal claims and are at different stages in
their proceedings.
In very limited circumstances, courts have excused a moving party’s failure
to satisfy the meet-and-confer requirement. In those instances, the courts typically
had before them a longstanding record of the opposing party’s refusal to comply
with both the plaintiff’s requests and the court’s orders to produce certain
discovery. See Bolger, 248 F.R.D. at 343-44; Oleson v. Kmart Corp., 175 F.R.D.
570, 571 (D. Kan. 1997) (excusing the movant’s failure to meet and confer before

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filing a motion to compel where it was apparent to the court that based on the
number and tenor of discovery disputes that were the subject of the motion, it was
unlikely the parties would have resolved their differences). Courts do not intervene
if the opposing party has timely addressed concerns of the moving party.
Robinson, 2009 WL 1586959 at *4 (refusing to grant relief under Rule 37 because
every time the parties had conferred, plaintiff addressed the defendant’s concerns
and provided additional information).
Here, when defendant met and conferred with plaintiff as to its discovery
responses in the state proceeding, plaintiff timely served its supplemental
responses. Plaintiff asked defendant on multiple occasions to clarify the issues it
had with the federal discovery in a likewise detailed manner, which defendant failed
to do.

Plaintiff’s counsel indicated its willingness to provide supplemental

information upon detailed request through and until the extended two-week
deadline, on which defense counsel opted to instead file this motion to compel. The
purpose of the meet-and-confer requirement is to “force litigants to attempt to
resolve, or at least narrow, the disputed issues to prevent the unnecessary waste of
time and effort on any given motion.” Alexander, 186 F.R.D. at 199. By failing to
confer with opposing counsel in good faith, defense counsel has unnecessarily
wasted the parties’ and this Court’s time.

The parties are admonished to

communicate in good faith to resolve any future discovery disputes before
requesting judicial intervention.
For the reasons set forth above,

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IT IS HEREBY ORDERED that defendant’s motion to compel plaintiff to
supplement its responses to its first set of interrogatories, requests for production
of documents, and requests for admission [Doc. #58] is denied.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 17th day of November, 2014.

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