Kwasniewski et al v. sanofi-aventis U.S., LLC et al

Filing 100

ORDER Denying without Prejudice 96 Plaintiffs' Motion to Compel. Signed by Magistrate Judge Nancy J. Koppe on 4/16/2013. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JENNIFER KWASNIEWSKI, et al.

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Plaintiffs,
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vs.
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SANOFI-AVENTIS U.S. LLC., et al.,
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Defendants.

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2:12-cv-00515-GMN-NJK

ORDER

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Before the Court is Plaintiffs’ Motion to Compel Discovery Responses from Defendant
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Sanofi-Aventis U.S. LLC (#96). The Court has considered the Plaintiffs’ Motion (#96), the
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Defendant Sanofi-Aventis’ Response (#97), and the Plaintiffs’ Reply (#89). The Court finds this
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motion appropriately resolved without oral argument. Local Rule 78-2.
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BACKGROUND
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The Plaintiffs filed this case in the District Court of Clark County, Nevada, on or around
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February 29, 2012. Complaint (#1-1). The Defendants petitioned for removal to the United
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States District Court for the District of Nevada on March 27, 2012. Petition for Removal (#1).
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On or around July 6, 2012, the parties began discovery. See Proposed Discovery Plan/Scheduling
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Order (#33). According to Defendant Sanofi-Aventis, the Plaintiffs have served “overly broad
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and sweeping discovery requests seeking the production of a large number of documents” since
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discovery started. The Plaintiffs dispute this claim and have filed the present Motion to Compel
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(#96) asserting that Sanofi-Aventis has not provided a list of what production goes with which of
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their requests. Motion to Compel (#96) at 3. Accordingly, the Plaintiffs are seeking an index or

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table of contents from Sanofi-Aventis.

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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 two-

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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 their Motion to Compel that the “parties have conferred and cannot

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come to an agreement.” Motion to Compel (#96) at 3. The affidavit of Robert E. Murdock, Esq.,

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further indicates that the parties discussed the issues via correspondence, email and in person. Id.

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at 6. According to Murdock, Sanofi-Aventis refuses to provide an index or table of contents, or

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state “exactly what the documents are corresponding to.” Id.

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Defendant Sanofi-Aventis disputes whether the Plaintiffs made a sincere effort to meet

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and confer. Response (#97) at 4. According to Sanofi-Aventis, the Plaintiffs made only one

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request for an index. Id. at 5. The request was a faxed letter, dated March 19, 2013, which
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indicated that the Plaintiffs would file a motion to compel if Sanofi-Aventis did not provide an

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index within seven days. Exhibit H, attached to Response (#97). The Plaintiffs filed their Motion

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to Compel (#96) on March 21, 2013, two days later. Motion to Compel (#96). According to

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Sanofi-Aventis, this dispute could have been resolved without court action if the Plaintiffs had

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made a good faith attempt to meet and confer. Response (#97).

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In Reply, the Plaintiffs do not address whether there was actually a meet and confer.1

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Reply (#98). Rather, the Plaintiffs cite to Fed.R.Civ.P. 1, which provides that the Federal Rules

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of Civil Procedure “ shall be construed to secure the just, speedy, and inexpensive determination

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of every action.” Id. at 2, citing Fed.R.Civ.P. 1.

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The meet and confer requirements of Fed.R.Civ.P. 37(a)(2)(B) and Local Rule 26-7(b)

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complement Rule 1. By instructing parties to meet and confer prior to seeking court intervention,

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the Rules mandate that the parties attempt to resolve or narrow their disputes before filing costly

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and time-consuming motions. Thus, when parties properly meet and confer, they are attempting

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to reach just, speedy, and inexpensive solutions, which is a promotion of Rule 1.

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With this in mind, the Court finds that the Plaintiffs did not properly meet and confer.

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Although the Murdock Affidavit states vaguely that the parties discussed the issues and that

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Sanofi-Aventis refused to provide an index, his affidavit lacks the “candor, specificity, and

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support” needed to show that there was a proper meet and confer. See Monsanto, 151 F.R.D. at

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120. The affidavit does not state when the discussions took place nor what the content of those

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conversations was.

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Further, the fax dated March 19, 2013, appears to be the Plaintiffs’ first request for an

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index, and that letter promises seven days to respond. Exhibit H, attached to Response (#97). The

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fact that the Motion to Compel (#96) was filed two days later implies that the Defendants were

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not given a sufficient amount of time to respond.

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Finally, the mere exchange of letters does not satisfy the personal consultation

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requirement. ShuffleMaster, Inc., 170 F.R.D. at 172. Personal consultation means the movant

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The Reply also continues to argue that Sanofi-Aventis should produce an index. Reply (#98).
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must “personally engage in two-way communication with the non-responding party to

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

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

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must present the merits of their respective positions and assess the relative strengths of each. See

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

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11, 2007).

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The Plaintiffs’ March 19, 2013, fax does not satisfy this requirement. Rather, the parties

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should have discussed this dispute in detail by presenting their arguments to one another and

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consulting in person or over the phone. 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 (#96).

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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 (#96) is DENIED

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without prejudice.
DATED this 16th

day of April, 2013.

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NANCY J. KOPPE
United States Magistrate Judge

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