Jacobs et al v. The Journal Publishing Company et al

Filing 122

ORDER by Magistrate Judge Steven C. Yarbrough regarding 119 Motion to Clarify (kfo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MICHAEL JACOBS and
RUBY HANDLER JACOBS,
Plaintiffs,
v.

Civ. No. 21-690 MV/SCY

THE JOURNAL PUBLISHING COMPANY
d/b/a THE ALBUQUERQUE JOURNAL;
WILLIAM P. LANG; NICOLE PEREZ;
JAMES THOMPSON; ELISE KAPLAN;
KAREN MOSES; DEAN HANSON; KENT
WALZ; MORGAN PETROSKI; and DOES 1
THROUGH 20; INDIVIDUALLY OR
JOINTLY and SEVERALLY,
Defendants.
ORDER REGARDING MOTION TO CLARIFY
Plaintiffs filed the present Motion Seeking Relief From The Court To Clarify The
September 26, 2023 Status Conference Agreements. Doc. 119. Plaintiffs argue that “it was
agreed that only one set [of discovery] would be provided by Plaintiffs instead of multiple sets
for each of the Defendants, i.e. Journal Publishing Company d/b/a The Albuquerque Journal
(“Journal”), William P. Lang, Nicole Perez, James Thompson, Elise Kaplan and Karen Moses.”
Doc. 119 at 1. “The procedure was to provide requests directed toward the individual Defendants
when applicable, which was done, and then [Defendants’] Responses were to indicate who was
actually responding.” Doc. 119 at 4.
Plaintiffs contend that Defendants did not follow this procedure when responding to
discovery, and instead answered discovery without indicating which defendant was responding.
Doc. 119 at 4. Plaintiffs request that the Court “provide clarification as to the agreements at the
conference in that only one set would be provided by Plaintiffs instead of multiple sets for each

of the Defendants and that Defendants were to provide the names of those answering the
Requests.” Doc. 119 at 5. In response, Defendants state: “Such a procedure would be unusual,
and, in fact, no such agreement was reached. To the extent that the Court wishes to clarify
anything from the scheduling conference, Defendant requests that the Court state that no such
agreement was reached, nor did the Court authorize such a procedure.” Doc. 120 at 3.
The September 26, 2023 Rule 16 scheduling conference was held on the record. See Doc.
93 (clerk’s minutes). Plaintiffs may request a copy of this recording by emailing
[e-mail]. The Court has reviewed the recording and confirmed that the parties
did not reach any agreement on this topic. Although Plaintiff Jacobs indicated he wished to serve
discovery cumulatively, counsel for Defendants clearly and explicitly disagreed. See 9/26/23
recording at 17:46-18:16. Counsel for Defendants stated discovery requests would “need to be
directed to individual defendants.” Id. The Court did not comment or rule on the appropriate
procedure and did not issue any order specifying how Plaintiffs should direct discovery. Because
Plaintiffs have not moved for any such order now, and have not filed a motion to compel
discovery responses, the Court will not consider any such relief.
Plaintiffs further represent that, “The parties have deemed any further discussions with
Defendants regarding discovery to be futile as evidenced by opposing counsel’s March 6, 2024
response.” Doc. 119 at 3. The Court reminds Plaintiffs of the duty to meet and confer prior to
filing a motion:
The Court will not entertain any motion to resolve a discovery dispute pursuant to
Fed. R. Civ. P. 26 through 37, or a motion to quash or modify a subpoena
pursuant to Fed. R. Civ. P. 45(c), unless the attorney for the moving party has
conferred or has made reasonable effort to confer with opposing counsel
concerning the matter in dispute prior to the filing of the motion. Every
certification required by Fed. R. Civ. P. 26(c) and 37 and this rule related to the
efforts of the parties to resolve discovery or disclosure disputes must describe
with particularity the steps taken by all attorneys to resolve the issues in dispute.

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A “reasonable effort to confer” means more than mailing or faxing a letter to the
opposing party. It requires that the parties in good faith converse, confer, compare
views, consult, and deliberate, or in good faith attempt to do so. Absent
exceptional circumstances, parties should converse in person or telephonically.
Doc. 83 at 2. Plaintiffs are advised that failure to confer regarding a future motion to compel
discovery could result in denial of their motion on this ground alone.
SO ORDERED.
_____________________________________
STEVEN C. YARBROUGH
UNITED STATES MAGISTRATE JUDGE

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