Allstate Insurance Company et al v. Balle et al

Filing 206

ORDER Denying without prejudice 194 Motion to Compel. Signed by Magistrate Judge Nancy J. Koppe on 4/26/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ALLSTATE INSURANCE COMPANY, et al.,

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Plaintiffs,
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vs.
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PETER MARIO BALLE, D.C., et al.,
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Defendants.

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2:10-cv-02205-APG-NJK

ORDER

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Before the Court is Plaintiffs’ Motion to Compel Discovery (#194). The Court has
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considered the Plaintiffs’ Motion (#194), the Defendants’ Response (#197), and the Plaintiffs’
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Reply (#199). The Court finds this motion appropriately resolved without oral argument. Local
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Rule 78-2.
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MEET AND CONFER
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The initial inquiry with any motion to compel, is whether the moving party made
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adequate meet and confer efforts. Fed.R.Civ.P. 37(a)(2)(B) requires that a “party bringing a
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motion to compel discovery must include with the motion a certification that the movant has in
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good faith conferred or attempted to confer with the nonresponsive party.” Similarly, Local Rule
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26-7(b) provides that “[d]iscovery motions will not be considered unless a statement of the
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movant is attached thereto certifying that, after personal consultation and sincere effort to do so,
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the parties have not been able to resolve the matter without Court action.” LR 26-7. This Court
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has previously held that personal consultation means the movant must “personally engage in two28
way communication with the nonresponding party to meaningfully discuss each contested

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discovery dispute in a genuine effort to avoid judicial intervention.” ShuffleMaster, Inc. V.

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Progressive Games, Inc., 170 F.R.D. 166, 171 (D. Nev. 1996). The consultation obligation

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“promote[s] a frank exchange between counsel to resolve issues by agreement or to at least

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narrow and focus matters in controversy before judicial resolution is sought.” Nevada Power v.

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Monsanto, 151 F.R.D. 118, 120 (D.Nev.1993). To meet this obligation, parties must “treat the

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informal negotiation process as a substitute for, and not simply a formal prerequisite to, judicial

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review of discovery disputes.” Id. This is done when the parties “present to each other the merits

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of their respective positions with the same candor, specificity, and support during the informal

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negotiations as during the briefing of discovery motions.” Id.

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The Plaintiffs state in the Affidavit attached to the Motion to Compel that the parties have

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“been in contact” and discussed the disputed discovery requests since November 20, 2012.

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Affidavit of Eron Cannon, Esq., attached as Exhibit H to Motion to Compel (#194). The

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Affidavit further indicates that as of February 26, 2013, “no discovery responses [had] been

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received.” Id. The Plaintiffs state that a copy of their November 20, 2012, email along with the

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Defendants’ response to that email was attached as Exhibit G.1 Id.

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The Court has reviewed Exhibit G and it does not include a responsive email from the

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Defendants. See Exhibit G, attached to Motion to Compel (#194). However, even if the

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Plaintiffs had included a responsive email, the mere exchange of letters does not satisfy the

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personal consultation requirement. See ShuffleMaster, 170 F.R.D. at 172. Personal consultation

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means the movant must “personally engage in two-way communication with the nonresponding

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party to meaningfully discuss each contested discovery dispute in a genuine effort to avoid

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judicial intervention.” ShuffleMaster, 170 F.R.D. at 171. Meaningful discussion means the

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parties must present the merits of their respective positions and assess the relative strengths of

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each. See Fifty-Six Hope Rd. Music, Ltd. v. Mayah Collections, Inc., 2007 WL 1726558, *11 (D.

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Nev. June 11, 2007). There is no indication that such a discussion occurred here. Rather, the

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In Response, the Defendants claim that the documents the Plaintiffs are seeking were not
available until March 11, 2013, and the Defendants have since produced those documents. Response
(#197). The Plaintiffs continue to dispute whether the Defendants’ supplemental productions were
sufficient. Reply (#199).
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Defendants were readily willing to respond to the Motion to Compel with production of

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documents. The Defendants made no arguments that the requested information was properly

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withheld nor that the Plaintiffs were wrong to request such information. Accordingly, it appears

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as though this discovery dispute was not, and should have been, discussed among the parties

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prior to seeking Court involvement. If such conversations did take place, the Plaintiffs did not

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sufficiently detail them in the motion or affidavit. Accordingly, the Court finds that the parties

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did not properly meet and confer before filing the Motion to Compel (#194).

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Finally, the Plaintiffs’ contention that the supplemental disclosures are not sufficient must
also be discussed among the parties in a proper meet and confer before seeking Court
involvement.

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CONCLUSION

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Based on the foregoing, and good cause appearing therefore,

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IT IS HEREBY ORDERED that the Plaintiffs’ Motion to Compel (#194) is DENIED

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without prejudice.
DATED this 26th

day of April, 2013.

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NANCY J. KOPPE
United States Magistrate Judge

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