Sevillet v. Baca et al

Filing 73

ORDER that Plaintiffs Motion for an Order Compelling Discovery 51 is denied without prejudice. Signed by Magistrate Judge Carl W. Hoffman on 1/31/12. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ALEXANDER D. SEVILLET,

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Plaintiff,

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vs.

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DWIGHT NEVEN, et al.,

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Defendants.

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2:11-cv-00761-PMP-CWH
ORDER

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This matter is before the Court on Plaintiff’s Motion for an Order Compelling Discovery
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(#51), filed December 28, 2011, and Defendants’ Opposition (#59), filed January 5, 2012.
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Pursuant to Federal Rule of Civil Procedure 37, Plaintiff seeks an order compelling
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additional responses to several identified discovery requests. Defendants contend that the motion
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is premature because Plaintiff failed to adequately meet and confer prior to the motion being
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filed. Noting that they intend to serve Plaintiff with a letter outlining what they perceive as
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Plaintiff’s own deficiencies in responding to discovery, Defendants suggest that requiring all
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parties to communicate prior to consideration of this motion to compel will likely resolve or
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narrow several of the disputes. Defendants also note that they have begun answering subsequent
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discovery requests and that the responses “may address some of Plaintiff’s concerns” outlined in
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this motion.
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As a general matter, prior to considering a motion pursuant to Rule 37 the court must be
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satisfied that the moving party made a good faith effort to resolve the dispute without court
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intervention. This requires, at a minimum, that the moving party initiate personal consultation
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with the non-responding party. See Fed. R. Civ. P. 37(a); see also LR 26-7(b). It also requires
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certification that the moving party has initiated the personal consultation. Shuffle Master, Inc. v.
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Progressive Games, Inc., 170 F.R.D.166, 171-72 (D. Nev. 1996). The certification must contain
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information sufficient so that the reviewing court “can pass a preliminary judgment on the
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adequacy and sincerity of the good faith conferment between the parties.” Fifty-Six Hope Rd.

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Music, Ltd. v. Mayah Collections, Inc., 2007 LEXIS 43012 *13 (D. Nev.). Beyond mere

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certification, there is also a performance requirement. The moving party’s counsel must initiate

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and engage in a two-way communication with the non-responding party to meaningfully discuss

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each contested discovery dispute in a sincere effort to avoid judicial intervention. Id.; see also

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Shuffle Master, Inc., 170 F.R.D. at 172 (citing Nevada Power Co. v. Monsanto Co., 151 F.R.D.

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118 (D. Nev. 1993). “A sincere effort to resolve the dispute occurs where both parties have

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presented the merits of their respective positions and meaningfully assessed the relative strengths

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of each.” Fifty-Six Hope Rd. Music, Ltd. at *16 (emphasis added). It is clear from the face of

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Plaintiff’s motion that he did not make an effort to meet and confer to resolve the discovery

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disputes at issue. There is no certification attached to the motion. Nor is there any indication that

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Plaintiff made any effort to informally resolve this matter before filing the motion.

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The Court is mindful that the meet and confer process can be difficult for incarcerated

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litigants proceeding pro se. However, even an incarcerated pro se litigant must comply with the

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meet and confer requirements. See Hunter v. Moran, 128 F.R.D. 115, 116-17 (D. Nev. 1989)

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(the meet and confer requirements of the Federal Rules and Local Rules apply to an incarcerated

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party). Although merely sending a letter is generally insufficient to satisfy a party’s obligations

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to meet and confer, the Court is willing to relax that standard under the circumstances in order to

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move this case forward. Thus, given Defendants’ representation that it will be sending a letter to

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Plaintiff regarding Plaintiff’s discovery responses, the Court will also require that Plaintiff confer

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with opposing counsel through a letter which specifically identifies all claimed deficiency in

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Defendants’ discovery responses. If the parties remain unable to resolve their discovery disputes,

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this motion may be brought back before the Court. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Motion for an Order Compelling Discovery
(#51) is denied without prejudice.
DATED this 31st day of January, 2012.

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C.W. Hoffman, Jr.
United States Magistrate Judge
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