Fadem v. American States Preferred Insurance Company

Filing 28

ORDER that 22 Motion to Compel Answer to Interrogatory and Requests for Production is DENIED without prejudice. Signed by Magistrate Judge Nancy J. Koppe on 12/6/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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SCOTT FADEM,
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Plaintiff(s),

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vs.

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AMERICAN STATES PREFERRED
INSURANCE COMPANY,

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Defendant(s).

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2:13-cv-01213-RCJ-NJK

ORDER

This matter is before the Court on Plaintiff Scott Fadem’s Motion to Compel Answer to
Interrogatory and Requests for Production (Docket No. 22).
MEET AND CONFER
The initial inquiry here, as with any motion to compel, is whether Plaintiff made adequate
meet and confer efforts. Fed.R.Civ.P. 37(a)(2)(B) requires that a “party bringing a motion to compel
discovery must include with the motion a certification that the movant has in good faith conferred
or attempted to confer with the nonresponsive party.” Similarly, Local Rule 26-7(b) provides that
“[d]iscovery motions will not be considered unless a statement of the movant is attached thereto
certifying that, after personal consultation and sincere effort to do so, the parties have not been able
to resolve the matter without Court action.” LR 26-7. This Court has previously held that personal
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.

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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, Plaintiff has failed to show that he made adequate meet and confer efforts prior to filing

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the instant motion. Plaintiff represents that the parties held a telephonic conference on November

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19, 2013, but were unable to resolve “all discovery disputes.” Docket No. 22, at 3. Plaintiff has not

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explained, however, whether the parties meaningfully discussed the merits of their respective

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positions nor whether they has a frank exchange in an effort to avoid judicial intervention. To the

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contrary, Defendant represents that during the first meet and confer attempt on November 18, 2013,

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Plaintiff was not prepared to discuss specific discovery requests and, the next day, when Defendant’s

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counsel asked for an additional two to four business days to address Plaintiff’s concerns, Plaintiff’s

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counsel dismissed that request. Docket No. 26, at 4.

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Thus, it does not appear that Plaintiff made a good faith effort to meet and confer. Rather,

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by denying Defendant an opportunity to respond, Plaintiff acted without knowing Defendant’s

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position on the dispute and, therefore, could not have concluded that the parties have reached an
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impasse. The parties must meet and confer on each one of the disputed matters and “present to each

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other the merits of their respective positions with the same candor, specificity, and support during

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the informal negotiations as during the briefing of discovery motions.” See Monsanto, 151 F.R.D.

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at 120. The purpose of the 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 Plaintiff Scott Fadem’s Motion to Compel Answer to

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Interrogatory and Requests for Production (Docket No. 22) is DENIED without prejudice.

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DATED this 6th day of December, 2013.

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NANCY J. KOPPE
United States Magistrate Judge

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