Trustees of the Operating Engineers Pension Trust et al v. Western Explosives Systems Company et al

Filing 36

ORDER Denying without prejudice 27 Motion to Compel. Denying as moot 35 Stipulation to Extend Time to File a Response to 27 Motion. Signed by Magistrate Judge Nancy J. Koppe on 9/3/2014. (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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TRUSTEES OF THE OPERATING
ENGINEERS PENSIONS TRUST; TRUSTEES
OF THE OPERATING ENGINEERS HEALTH
AND WELFARE FUND; TRUSTEES OF THE
OPERATING ENGINEERS JOURNEYMAN
AND APPRENTICE TRAINING TRUST; AND
TRUSTEES OF THE OPERATING ENGINEERS
VACATION-HOLIDAY SAVINGS TRUST,

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Plaintiff(s),

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vs.

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WESTERN EXPLOSIVES SYSTEMS
COMPANY, a Delaware corporation; JARED L.
FREDERICK, JR., an individual; and PAUL A.
FREDERICK, an individual,

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Defendant(s).
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Case No. 2:13-cv-00092-GMN-NJK

ORDER

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Pending before the Court is Plaintiffs’ Renewed Motion to Compel and the parties’ Stipulation

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to Extend Time for Defendant to File Response to Renewed Motion to Compel. Docket Nos. 27, 35.

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For the reasons discussed below, Plaintiffs’ renewed motion to compel is hereby DENIED without

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prejudice and the parties’ stipulation to extend time is DENIED as moot.

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

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

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

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confer” with the non-responsive party. Similarly, Local Rule 26-7(b) provides that “[d]iscovery motions

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will not be considered unless a statement of the movant is attached thereto certifying that, after personal

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consultation and sincere effort to do so, the parties have not been able to resolve the matter without

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Court action.”

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

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

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

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v. Progressive Games, Inc., 170 F.R.D. 166, 171-72 (D. Nev. 1996). This obligation “promote[s] a

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frank exchange between counsel to resolve issues by agreement or to at least narrow and focus matters

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in controversy before judicial resolution is sought.” Nevada Power v. Monsanto, 151 F.R.D. 118, 120

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(D.Nev.1993). To meet this obligation, parties must “treat the informal negotiation process as a

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substitute for, and not simply a formal prerequisite to, judicial review of discovery disputes.” Id. This

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is done when the parties “present to each other the merits of their respective positions with the same

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candor, specificity, and support during the informal negotiations as during the briefing of discovery

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motions.” Id. “Only after all the cards have been laid on the table, and a party has meaningfully assessed

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the relative strengths and weaknesses of its position in light of all available information, can there be

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a ‘sincere effort’ to resolve the matter.” Id. To ensure that parties comply with these requirements,

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movants must file certifications that “accurately and specifically convey to the court who, where, how,

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and when the respective parties attempted to personally resolve the discovery dispute.” ShuffleMaster,

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170 F.R.D. at 170.

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The Court has reviewed the pending certification of counsel. Docket No. 27, Ring Decl. at

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¶¶ 18-24, Exh. 1. It appears from the certification that when the parties met on June 25, 2014, for a meet

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and confer not all of the relevant information was available. See Federal Deposit Insurance Corp., v.

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Flamingo, LLC, et al., 2013 WL 2558219, 2 (D.Nev.) (“[A] party must ‘meaningfully assess [ ] the

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relative strengths and weaknesses of its position in light of all available information.’” (quoting Nevada

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Power, 151 F.R.D. 118, 120 (D.Nev.1993)). At the June 25, 2014, meeting, the parties agreed to allow

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Defendants thirty days to produce documents. The current motion is based in large part on the

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circumstances that developed after the June 25, 2014, meeting. After that June 25, 2014, meeting, the

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certification provides only a description of written communications between counsel, which are not
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sufficient to satisfy the “personal consultation” requirement. See ShuffleMaster, 170 F.R.D. at 172

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(exchange of letters does not satisfy meet and confer requirements). The parties, therefore, have not

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engaged in an adequate meet and confer for purposes of the instant motion to compel.

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Accordingly,

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IT IS HEREBY ORDERED that Plaintiffs’ renewed motion to compel (Docket No. 27) is

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DENIED without prejudice.
IT IS FURTHER ORDERED that the parties’ Stipulation to Extend Time for Defendant to File
Response to Renewed Motion to Compel (Docket No. 35) is DENIED as moot.
IT IS SO ORDERED.
DATED: September 3, 2014

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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