Gibbs et al v. Rivers Transportation Group, Inc. et al

Filing 38

ORDER Denying without prejudice 37 Motion to Compel. Signed by Magistrate Judge Nancy J. Koppe on 11/5/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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WILLIAM GIBBS and JOHN WAGNER,

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Plaintiffs,
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vs.
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RIVERS TRANSPORTATION GROUP, INC.,
et al.,

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Defendants.

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2:13-cv-00935-JAD-NJK

ORDER

This matter is before the Court on Defendant Thomas Roll’s Motion to Compel (#37).
MEET AND CONFER

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The initial inquiry here, as with any motion to compel, is whether the movant made adequate

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meet and confer efforts. Fed.R.Civ.P. 37(a)(2)(B) requires that a “party bringing a motion to compel

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discovery must include with the motion a certification that the movant has in good faith conferred

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

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

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

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to resolve the matter without Court action.” LR 26-7. This Court has previously held that personal

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

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

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to avoid judicial intervention.” ShuffleMaster, Inc. v. Progressive Games, Inc., 170 F.R.D. 166, 171

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(D. Nev. 1996). Meaningful discussion means the parties must present the merits of their respective

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positions and assess the relative strengths of each. See Fifty-Six Hope Rd. Music, Ltd. v. Mayah

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Collections, Inc., 2007 WL 1726558, *11 (D. Nev. June 11, 2007). The consultation obligation

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

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

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

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

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

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

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as during the briefing of discovery motions.” Id. The mere exchange of letters does not satisfy the

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

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Judicial intervention is appropriate only when “(1) informal negotiations have reached an

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impasse on the substantive issue in dispute, or (2) one party has acted in bad faith, either by refusing

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to engage in negotiations altogether or by refusing to provide specific support for its claims of

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privilege.” Monsanto, 151 F.R.D. at 120.

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Here, Defendant Thomas Roll asserts that he “sent a meet and confer letter to Plaintiff’s [sic]

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counsel on October 10, 2013.” Docket No. 37, at 3. According to Defendant Roll, “Plaintiffs’

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counsel has not responded to the meet and confer letter, thus necessitating this motion.” Id. A single

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letter, however, is not an adequate meet and confer effort. See ShuffleMaster, Inc. 170 F.R.D. at 172.

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Prior to filing this motion, Defendant Roll was required to engage in two-way communication with

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

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judicial intervention. Id. He has not done so here. Instead, it appears that Defendant Roll made

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minimal and insufficient meet and confer efforts after Plaintiffs provided their amended responses

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to his requests for production. Without knowing Plaintiffs’ position on the disclosure, Defendant

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Roll cannot conclude that the parties have reached an impasse. The parties must meaningfully

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discuss this dispute prior to seeking court intervention.

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Although such a discussion may not resolve this dispute in its entirety, it may narrow the

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issues. Currently, Defendant is seeking court intervention on 26 Requests for Production. The parties

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must meet and confer on each one of these matters and “present to each other the merits of their
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respective positions with the same candor, specificity, and support during the informal negotiations

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as during the briefing of discovery motions.” See Monsanto, 151 F.R.D. at 120. The purpose of the

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discussion should be to either resolve or narrow the dispute.

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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 Defendant Thomas Roll’s Motion to Compel (#37) is

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DENIED without prejudice.
DATED this 5th day of November, 2013.

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NANCY J. KOPPE
United States Magistrate Judge

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