V'Guara Inc. v. Steve Dec et al

Filing 79

ORDER that 77 Motion to Compel is DENIED without prejudice. Signed by Magistrate Judge Nancy J. Koppe on 3/5/14. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
DISTRICT OF NEVADA
9
10
V’GUARA, INC.,

15

)
)
)
)
)
)
)
)
)
)

16

Pending before the Court is Defendant Steve Dec’s (“Defendant”) Motion to Compel, filed

11
Plaintiff(s),
12
vs.
13
STEVE DEC, et al.,
14
Defendant(s).

Case No. 2:13-cv-0076-JAD-NJK
ORDER DENYING MOTION TO
COMPEL
(Docket No. 77)

17

on March 5, 2014. Docket No. 77. For the reasons discussed below, the motion is hereby DENIED

18

without prejudice.

19

The Court’s initial inquiry regarding a motion to compel is whether the movant made

20

adequate meet and confer efforts. Federal Rule of Civil Procedure 37(a)(1) requires that a motion to

21

compel discovery “must include a certification that the movant has in good faith conferred or

22

attempted to confer” with the nonresponsive party. Similarly, Local Rule 26-7(b) provides that

23

“[d]iscovery motions will not be considered unless a statement of the movant is attached thereto

24

certifying that, after personal consultation and sincere effort to do so, the parties have not been able

25

to resolve the matter without Court action.”

26

The case law in this District is clear that “personal consultation” means the movant must

27

“personally engage in two-way communication with the nonresponding party to meaningfully

28

discuss each contested discovery dispute in a genuine effort to avoid judicial intervention.”

1

ShuffleMaster, Inc. v. Progressive Games, Inc., 170 F.R.D. 166, 171-72 (D. Nev. 1996). This

2

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

3

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

4

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

5

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

6

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

7

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

8

negotiations as during the briefing of discovery motions.” Id. “Only after all the cards have been laid

9

on the table, and a party has meaningfully assessed the relative strengths and weaknesses of its

10

position in light of all available information, can there be a ‘sincere effort’ to resolve the matter.” Id.

11

To ensure that parties comply with these requirements, movants must file certifications that

12

“accurately and specifically convey to the court who, where, how, and when the respective parties

13

attempted to personally resolve the discovery dispute.” ShuffleMaster, 170 F.R.D. at 170.

14

The Court has reviewed the pending certification of counsel. Docket No. 77-2. That

15

certification appears to provide only a description of written communications to opposing counsel,

16

which are not sufficient to satisfy the “personal consultation” requirement. See ShuffleMaster, 170

17

F.R.D. at 172 (exchange of letters does not satisfy meet and confer requirements). Accordingly, the

18

motion to compel is hereby DENIED without prejudice.

19

IT IS SO ORDERED.

20

DATED: March 5, 2014

21
22

______________________________________
NANCY J. KOPPE
United States Magistrate Judge

23
24
25
26
27
28
2