United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiffs' Motion to Compel Discovery (R.
Doc. 35) filed on October 13, 2017. The motion is opposed.
(R. Doc. 41). Plaintiff has filed a Reply. (R. Doc. 44).
served the discovery requests at issue on May 11, 2017. (R.
Doc. 35-4). Defendants provided responses on August 7, 2017.
(R. Doc. 35-5).
morning of September 27, 2017, Plaintiff's counsel sent
an email to defense counsel stating, in pertinent part, the
following: “Following the deposition today . . . we
will conduct the Rule 37.1 [sic] on your client's
discovery responses.” (R. Doc. 35-13 at 3). Defense
counsel responded that she would not be available for a
conference directly after the deposition. (R. Doc. 35-13 at
2). Plaintiff's counsel insisted that the conference take
place after the deposition despite defense counsel's
opposition. (R. Doc. 35-12; R. Doc. 35-13 at 1). The
deposition did not take place. (See R. Doc. 40).
September 28, 2017, Plaintiff's counsel sent an e-mail to
defense counsel requesting that she contact Plaintiff's
counsel later that day for the purpose of conducting the
discovery conference. (R. Doc. 35-11). After defense counsel
responded that she was not available that day and offered to
hold a conference on October 2 and October 3, Plaintiff's
counsel stated that she was not available on the offered
dates and requested further suggested dates. (R. Doc. 35-10
at 1). On October 4, 2017, defense counsel informed
Plaintiff's counsel that she was available for a
conference on October 9 or 10 from 2:00-4:00 p.m. (R. Doc.
35-7 at 1). The next day, Plaintiff's counsel set the
conference for October 9 at 2:00 p.m. (R. Doc. 35-7 at 1).
counsel cancelled the conference in light of a family
emergency, and defense counsel agreed to hold the conference
on October 10 at 2:00 p.m. (R. Doc. 35 at 2; R. Doc. 35-8).
Defense counsel contacted Plaintiff's counsel on the
morning of October 10 to inform her that she was cancelling
the conference in light of another appointment, further
informing Plaintiff's counsel that she was available on
October 13 at 2:00-5:00 p.m. (R. Doc. 35-8). Plaintiff's
counsel responded by stating that she would not agree to
another “extension” of the discovery conference
date and time. (R. Doc. 41-1).
October 13, 2017, Plaintiff filed the instant Motion. (R.
Doc. 35). Plaintiff seeks supplemental responses to
Interrogatory Nos. 5 and 8, and Request for Production Nos.
2, 10, 12, and 13. Plaintiff's counsel submits a
“Rule 37 Certificate on Motion to Compel” in
which she outlines the foregoing correspondence between the
parties regarding a discovery conference. (R. Doc. 35-3).
Defendants oppose the motion on the basis that Plaintiff did
not participate in a proper discovery conference before
filing the Motion. (R. Doc. 41).
Law and Analysis
37(a)(1) of the Federal Rules of Civil Procedure provides
that any motion to compel “must include 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.” Failure to comply with the meet and confer
requirement may constitute sufficient reason to deny a motion
to compel. Shaw Grp. Inc. v. Zurich Am. Ins. Co.,
No. 12-257, 2014 WL 4373197, at *3 (M.D. La. Sept. 3, 2014);
see also Forever Green Athletic Fields, Inc. v. Babcock
Law Firm, LLC, No. 11-633 (M.D. La. July 2, 2014)
(denying motion to compel where defense counsel made a single
attempt by email to meet and confer and did not do so in a
good faith effort to resolve the dispute without court
“Rule 37 Certificate on Motion to Compel” does
not state that Plaintiff or Plaintiff's counsel acted in
“good faith” in attempting to confer regarding
the outstanding discovery in an effort to obtain it without
court action. To be clear, this is not a case where a moving
party filed a motion to compel without holding a discovery
conference, despite various good faith attempts to do so, in
light of an impending discovery deadline. Discovery is not
set to close in this action until March 1, 2018. (R. Doc.
25). Defense counsel expressed a willingness to hold a
discovery conference on the very afternoon on which the
instant motion was filed.
considered the record, the Court concludes that
Plaintiff's counsel did not attempt to hold a conference
in “good faith” as required by Rule 37(a)(1). The
record indicates that Plaintiff's counsel's first
attempt at setting a discovery conference was a terse email
to defense counsel on the morning of a deposition, declaring
that counsel “will conduct” a conference on
certain unidentified discovery responses. This is not a good
faith attempt to schedule a discovery conference. It
certainly does not meet the requirement in the Court's
Scheduling Order that a party must provide “reasonable
notice” for a discovery conference. (R. Doc. 25 at
The record further indicates that defense counsel provided
certain alternative dates to hold a conference (which
Plaintiff's counsel did not agree to) and that
Plaintiff's counsel herself cancelled a scheduled
conference date in light of a personal conflict. It was only
when defense counsel cancelled a scheduled conference date in
light of her own conflict that Plaintiff's counsel
refused to reschedule the conference. The following
“efforts” by Plaintiff's counsel to hold a
proper discovery conference falls short of the requirements
of Rule 37(a)(1).
foregoing reasons, IT IS ORDERED that
Plaintiffs' Motion to Compel Discovery (R. Doc. 35) is
DENIED. Plaintiff may reassert his Motion to
Compel after the parties meet-and-confer on the substantive
discovery issues raised in the motion, and with the filing of
a Rule 37 certificate specifically setting forth (1) how the
conference was scheduled and agreed upon, (2) who
participated in the conference, (3) when the conference took
place, (4) whether the conference was conducted by phone or
in person, (5) the duration of the conference, (6) the
specific, itemized topics that were addressed at the
conference, and (7) whether any issues were resolved by the
parties. In the alternative, the Rule 37 ...