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Management Registry, Inc. v. A.W. Companies, Inc.

United States District Court, D. Minnesota

May 8, 2019

Management Registry, Inc., Plaintiff,
v.
A.W. Companies, Inc., et al., Defendants.

          ORDER

          KATHERINE MENENDEZ, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on “Defendant Wendy Brown's Motion to Compel Discovery.” (Def.'s Mot., ECF No. 193.) The plaintiff, Management Registry, Inc. (“MRI”), has filed an “Certification of Defendants' Non-Compliance with LR 7.1(a) and Objection to Defendants' Meet and Confer Statements.” (MRI's Obj., ECF No. 200.) For the reasons that follow, the Court denies the motion without prejudice.

         Rule 37 and the “Meet and Confer” Requirement

         Rule 37 allows a party seeking discovery to move for an order compelling another party to make a disclosure or provide discovery. Fed.R.Civ.P. 37(a)(1). Every motion to compel must be accompanied by “a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed.R.Civ.P. 37(a)(1); D. Minn. LR 7.1(a), LR 37.1(a). This obligation is only fulfilled when parties have engaged in a genuine and good-faith discussion about each discovery request that is in dispute. Shuffle Master, Inc. v. Progressive Gams, Inc., 170 F.R.D. 166, 170-171 (D. Nev. 1996)) (“[P]rior to making a motion to compel, ‘a moving party must personally engage in two-way communication with the nonresponding party to meaningfully discuss each contested discovery dispute in a genuine effort to avoid judicial intervention.' Unilaterally sending correspondence demanding that the other side comply with a discovery request does not satisfy the requirement.”). In other words, it is not enough for an attorney to send an email or letter to opposing counsel essentially stating: “Comply, in full, with all of our discovery requests or we will file a motion to compel, ” and engage no further in a discussion about each side's position.

         Communications in This Case

         Based on the record, the Court concludes that in this case the defense has failed to comply with the obligation to engage in good-faith efforts to resolve discovery disputes before seeking judicial intervention. Mr. Loftus entered his appearance for Ms. Brown and the other defendants less than a month ago, substituting as counsel for their previous lead attorney, Richard Pins. (ECF Nos. 184, 186.) Before the substitution, the parties had raised several discovery issues before the Court. However, the Court, Mr. Pins, and counsel for MRI addressed those disputes thoroughly, and it appeared that what began as a somewhat contentious discovery process was going more smoothly in recent months. In large part, the progress was due to counsel's willingness to engage in productive and substantive discussions attempting to resolve disagreements about the scope of discovery as they arose.

         Unfortunately, unproductive contentiousness appears to have recently returned to this litigation. Around mid-April 2019, Mr. Loftus raised concerns regarding discovery through correspondence to MRI's lead counsel, James Morris. Mr. Loftus sent Mr. Morris a letter on April 18, 2019, asserting that answers to certain interrogatories and production required by several document requests were insufficient and indicating that a motion to compel would be filed on April 26, 2019. (MRI's Obj. at 4-5.)

         Mr. Loftus filed the pending motion to compel on April 26, 2019. When it was filed, the Court reviewed the motion. It appeared that the parties had not adequately engaged in the meet-and-confer process required by the applicable procedural rules. This reality was reflected not only in the meet-and-confer statement submitted by the defendants, but in the lengthy laundry list of relief sought in the motion itself. The Court emailed the parties on April 29, 2019, instructing them to communicate further:

Meeting and conferring by email is generally inadequate to satisfy the requirement that the parties meet in a “good-faith effort” to resolve a disagreement. It is particularly inadequate in this case, where several disagreements have been raised to the Court already that could have been resolved through genuine efforts by counsel.
I considered striking the motion filed by the defendants and requiring counsel to engage in a meet and confer process before permitting it to be refiled. At this time I am not going to employ such a heavy hand. However, I am going to require that a meaningful meet and confer through direct conversation take place as soon as possible.

(E-mail from Menendez, M.J., to Messrs. Loftus and Morris (Apr. 29, 2019) (on file with the Court) (emphasis in original).)

         Instead of following the Court's instructions, Mr. Loftus indicated in an email to Mr. Morris, which copied the undersigned, that “[t]alking on the phone with you won't change [the parties' disagreement about MRI's discovery responses]. That has been done and done again and it's time to move on. This matter needs to be adjudicated by the Court now.” (Email from Mr. Loftus to Mr. Morris (Apr. 29, 2019) (on file with the Court).) Mr. Morris nonetheless attempted to schedule a telephone conversation so that counsel could discuss whether any of the identified discovery disputes could be resolved short of a court order, but Mr. Loftus refused. (MRI's Obj. at 9-10.) Mr. Loftus eventually agreed to have a phone conversation to discuss only one issue of the twenty-four raised in his motion; specifically, he asked for verbal confirmation from Mr. Morris that MRI would not produce internal emails, meaning correspondence that did not include any of the defendants as a sender or recipient at some point in the string. (MRI's Obj. at 10-11.)

         Mr. Morris was concerned that Mr. Loftus was simply attempting to “check the box” that the parties had met and conferred so that he could obtain a ruling on the motion to compel. (MRI's Obj. at 11-12.) He emailed Mr. Loftus indicating that he was “not interested in simply verbally advising that I will or will not do something - especially since we have already done so, ” and again asked for confirmation that Mr. Loftus intended to participate in a complete meet-and-confer discussion. (MRI's Obj. at 11.) Mr. Morris stated that Mr. Loftus was not seeking to confer about the full scope of the discovery issues raised, but to “‘confirm' [a] myopic understanding of the isolated issue raised in your e-mail.” (MRI's Obj. at 12.)

         On May 1, 2019, shortly after that exchange, Mr. Loftus filed a certification that he attempted to meet and confer with Mr. Morris concerning the ...


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