Osborne et al v. Billings Clinic et al

Filing 99

OPINION AND ORDER DENYING 79 Motion to Compel and DENYING 97 Motion to Supplement AS MOOT. Sanctions and attorney's fees are denied. Signed by Judge Susan P. Watters on 4/13/2015. (EMH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

FILED
APR 1 3 l015
Clerk, US District Court
District Of Montana
Billings

DALE OSBORNE, as Personal
Representative of the Estate of Sarah
Osborne,

CV 14-126-BLG-SPW

OPINION and ORDER

Plaintiff,
vs.
BILLINGS CLINIC, and UNITED
STATES OF AMERICA,
Defendants.

BILLINGS CLINIC,
Cross-Claimant,
Vs.
UNITED STATES OF AMERICA,
Cross-Defendant.

Before this Court is Plaintiff Dale Osborne's third motion to compel
discovery. (Doc. 79) He requests that the Court compel Billings Clinic's
responses to a number of discovery requests, issue sanctions, and award attorneys'

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fees and costs. Osborne's motion is denied based on counsel's failure to meet and
confer.

I.

Discussion
In his third motion to compel, Osborne sought further responses to his First

Discovery Requests, or for an order deeming those Requests admitted. There has
been no showing, however, that Osborne met and conferred in good faith prior to
filing the motion to compel.
To put this order in perspective, this case was transferred from state court to
this Court on September 16, 2014. A Pretrial Scheduling Order, setting a
discovery deadline of October 4, 2015, has been in place since December 5, 2014.
To date, this Court has issued six substantive orders, five of which have dealt with
discovery motions. Currently pending are two additional motions for protective
orders, (docs. 68 and 85), this motion to compel, a renewed motion to be allowed
more than ten depositions, (doc. 93), and two motions to supplement Osborne's
briefing on two of the above motions (docs. 95 and 97).
As this Court noted in its January 12, 2015 Order, counsel are required to
meet and confer in good faith prior to filing a discovery motion. (Doc. 45); see
also Fed. R. Civ. P. 37(a)(l) ("The 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
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court action); see also D. Mont. L. R. 26.3(c)(l) ("The Court will deny any
discovery motion unless the parties have conferred concerning all disputed issues
before the motion is filed.") The meet and confer requirement is specific and
requires "direct dialogue and discussion." Id. ("The mere sending of a written,
electronic, or voice-mail communication does not satisfy this requirement. Rather,
this requirement can be satisfied only through direct dialogue and discussion in a
face-to-face meeting, in a telephone conversation, or in detailed, comprehensive
correspondence.")
These rules exist for a reason. Namely, the parties are required to meet and
confer "to lessen the burden on the court and reduce the unnecessary expenditure
of resources by litigants, through promotion of informal, extra-judicial resolution
of discovery disputes." Harter v. CPS Sec. (USA), Inc., 2013 WL 4040090 (D.
Nev. Aug. 5, 2013) (quoting Nevada Power v. Monsanto, 151 F.R.D. 118, 120
(D.Nev. 1993)). Also, the meet-and-confer obligations "promote a frank exchange
between counsel to resolve issues by agreement or to at least narrow and focus the
matters in controversy before judicial resolution is sought." Id. For the meet and
confer obligations to serve their purpose, "the parties [must] treat the informal
negotiation process as a substitute for, and not simply a formal prerequisite to,
judicial review of discovery disputes." Id. In order to accomplish this,
"[t]he parties must present to each other the merits of their respective
positions with the same candor, specificity, and support during

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informal negotiations as during the briefing of discovery motions.
Only after all the cards have been laid on the table, and a party has
meaningfully assessed the relative strengths and weaknesses of its
position in light of all available information, can there be "a sincere
effort" to resolve the matter.
Id. Judicial intervention should only occur when either informal negotiations have

reached an impasse on the substantive issues in dispute, or one party has acted in
bad faith by either refusing to negotiate or provide specific support for its claims.
Id.

Here, on February 4, 2015, Osborne sent a six page letter complaining about
virtually every one ofBillings Clinic's responses to his first requests for
production. (Doc. 80-1). Billings Clinic's counsel responded on Feb. 20, 2015, a
Friday, to let Osborne's counsel know that she had been traveling but would
respond to the discovery "next week." (Doc. 80-2). Four days later, on the
following Tuesday, Osborne's counsel sent a letter threatening a motion to compel
if responses are not received within two days. (Doc. 80-3).
Osborne's counsel's conduct does not demonstrate a good faith attempt to
meet and confer. Sending one demand letter and one follow up letter with a threat
to file a motion to compel does not constitute a good faith attempt at a "dialogue."
It does not even meet the standard for common courtesy.

The docket for this case lists two attorneys for Billings Clinic in this matter,
yet it appears that Osborne did not attempt to contact the other attorney outside

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these two letters in any effort to meet and confer when notified that one had been
out of the office. Nor does it appear that Osborne attempted to even get defense
counsel on the phone about the issues or discuss with their assistants when they
may be available. There is no requirement that Osborne go to extraordinary
lengths to meet and confer; in this case however, where Osborne filed this motion
to compel just days after his second letter does not satisfy the basic meet and
confer requirement. This Court informed the parties that it would deny motions
that violate the Local Rules in its January 12, 2015, Order. (Doc. 45). So far, the
parties have apparently failed to heed this warning. The Court urges them to do so
from now on.
Accordingly, Osborne's third motion to compel (Doc.79) is DENIED
without prejudice. As a result, Osborne's Motion to Supplement Pursuant to L.R.
15 .1, Plaintiffs Reply Brief in Support of Third Motion to Compel Discovery
(Doc. 97) is also DENIED as MOOT.
The parties shall engage in a meaningful meet and confer about these
discovery disputes and, if any of these disputes remain, Osborne may re-file his
third motion to compel. At that time, counsel should be prepared to present
evidence of specific compliance with the meet and confer rule. Sanctions and
attorney's fees are denied.

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DATED this _ll day of April 2015.

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SUSANP. WATTERS
United States District Judge

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