Donald Okada v. Nevada Property 1, LLC

Filing 43

ORDER that 42 Motion to Compel is DENIED without prejudice. Signed by Magistrate Judge Nancy J. Koppe on 10/27/14. (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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DONALD OKADA,
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Plaintiff(s),
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vs.

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NEVADA PROPERTY 1, LLC,

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Defendant(s).

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Case No. 2:14-cv-01601-RCJ-NJK
ORDER DENYING MOTION TO
COMPEL
(Docket No. 42)

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Pending before the Court is Plaintiff’s Motion to Compel, filed on October 23, 2014. Docket
No. 42. For the reasons discussed below, the motion is hereby DENIED without prejudice.

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

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

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

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attempted to confer” with the non-responsive 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.”

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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,

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Inc. v. Progressive Games, Inc., 170 F.R.D. 166, 171-72 (D. Nev. 1996). This 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. “Only after all the cards have been laid on the

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

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

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that parties comply with these requirements, movants must file certifications that “accurately and

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

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

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The Court has reviewed the pending certification of counsel. Docket No. 42-1, Gaw Decl.

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at ¶¶ 6-19. The parties had a telephonic conference on September 5, 2014. Id., at ¶ 6. However,

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after that telephonic conference on September 5, 2014, it appears that all communication, including

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different offers for resolving the parties’ differences, has consisted of letters and e-mails. These

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letters and e-mails are not sufficient to satisfy the “personal consultation” requirement. See

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ShuffleMaster, 170 F.R.D. at 172 (exchange of letters does not satisfy meet and confer

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requirements). The parties, therefore, have not engaged in an adequate meet and confer for purposes

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of this motion. Accordingly, the motion to compel is hereby DENIED without prejudice.

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IT IS SO ORDERED.

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DATED: October 27, 2014

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NANCY J. KOPPE
United States Magistrate Judge

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