United States District Court, M.D. Louisiana
BELINDA D. MCALLISTER, ET AL.
McDERMOTT, INC., f/k/a J. RAY McDERMOTT & CO., INC., ET AL.
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiffs' Motion to Compel Discovery
Directed to Defendant, Flowserve U.S. Inc., solely as alleged
successor to Rockwell Manufacturing Company, Edward Valves,
Inc., McAnna Corporation and Nordstrom Valves, Inc.
(“Flowserve”) (R. Doc. 170) filed on October 25,
2019. Plaintiffs' motion seeks an order compelling
Flowserve to provide supplemental responses to
Plaintiffs' Interrogatory Nos. 10, 12, 15, and 16, and
Request for Production Nos. 10, 11, 12, and 28. Flowserve
filed an opposition indicating that supplemental responses
were provided after the filing of the motion. (R. Doc. 198).
served the underlying discovery requests on October 11, 2018.
(R. Docs. 170-2, 170-3). There is no dispute that Flowserve
provided responses to the discovery requests. (R. Doc.
August 30, 2019, Plaintiffs' counsel sent an email to
defense counsel identifying certain purported deficiencies
with respect to Flowserve's written discovery responses
at issue. (R. Doc. 170-5). The email stated that if
supplemental responses are not provided within 7 days,
Plaintiffs would seek court intervention. (R. Doc. 170-5 at
3). Defense counsel acknowledged receipt of the email on
September 5, 2019. (R. Doc. 170-5 at 1).
September 20, 2019, Plaintiffs and certain defendants
(including Flowserve) filed a joint status report seeking,
among other things, an extension of the non-expert discovery
deadline to October 25, 2019. (R. Doc. 123). The status
report represented that should the requested extensions be
provided, “Plaintiff will gladly withdraw and/or
continue the currently-filed Motions [to Compel] to permit
further meet and confer efforts between the parties and avoid
further Court intervention.” (R. Doc. 123 at 1 n.2).
That same day, Flowserve made a supplemental production of
documents. (R. Doc. 170-7).
October 15, 2019, the Court issued an amended scheduling
order resetting, among other things, the deadline to complete
non-expert discovery to October 25, 2019. (R. Doc. 134).
October 25, 2019, Plaintiffs filed the instant motion to
compel. (R. Doc. 170). The motion is accompanied with a
“Certificate of Attempt to Resolve” providing
that Plaintiffs' counsel “made reasonable attempts
to resolve the matters” subject to the instant motion,
and filed the instant motion only after the parties were
“unable to resolve this dispute.” (R. Doc. 170 at
5). Plaintiffs do not, however, identify any specific
attempts to resolve the issues raised in the instant motion
after the August 30, 2019 email detailed above.
November 12, 2019, the Court held oral argument on the
instant motion. (R. Doc. 211). At oral argument,
Plaintiffs' counsel withdrew the motion with respect to
Plaintiffs' Interrogatory Nos. 10, 15, and 16, and
Request for Production Nos. 10, 11 and 28. To the extent that
the parties have reached agreements with respect to the
issues raised in the motion to compel, the Court will deny
the motion as moot.
parties did not reach any agreements with respect to
Plaintiffs' Interrogatory No. 12 and Request for
Production No. 12, which respectively seek identification of
all insurance coverage disputes brought by Flowserve
involving asbestos-related claims and production of all
associated documents in the records of those actions.
reviewed the record and the arguments presented by counsel,
the Court will deny the motion to compel with respect to the
written discovery requests remaining in dispute. In short,
Plaintiffs did not meet the requirements of Rule 37(a)(1) of
the Federal Rules of Civil Procedure, which 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.” Fed.R.Civ.P. 37(a)(1).
record indicates that on August 30, 2019, Plaintiffs made a
single attempt through email to obtain supplemental responses
under threat of filing a motion to compel. This
correspondence does not satisfy the requirements of Rule
37(a)(1). See Forever Green Athletic Fields, Inc. v.
Babcock Law Firm, LLC, No. 11-633, ECF No, 75 (M.D. La.
July 3, 2014) (denying motion to compel where counsel sent
single email demanding that full and complete responses to
written discovery be provided by a certain date or a motion
to compel would be filed); see Ross v. Citifinancial,
Inc., 203 F.R.D. 239, 240 (S.D.Miss. 2001) (Rule
37(a)(1)'s meet-and-confer “prerequisite is not an
empty formality” and “cannot be satisfied by
including with the motion copies of correspondence that
discuss the discovery at issue”); Dimitric v. Tex.
A & M Univ., No. 06-107, 2007 WL 1090982, at *1
(S.D. Tex. April 9, 2007) (“Prior to filing this
Motion, Dimitric did not confer, except through an [e-mail],
with defense counsel . . . . For this reason, alone, his
Motion should be denied.”); Antonis v. Elecs. for
Imaging, Inc., No. 07-163, 2008 WL 169955, at *1 (D.N.H.
Jan. 16, 2008) (“[A]s a general principle, simply
reiterating demands for production in a series of emails
probably does not meet the requirement that the parties
confer in good faith about discovery issues before invoking
judicial remedies.”); Robinson v. Napolitano,
No. 08-4084, 2009 WL 1586959, at *3 (D.S.D. June 4, 2009)
(“Nor is the meet-and-confer requirement satisfied by
the sending of a letter that indicated that a motion to
compel would be filed if the opposing party did not comply
with discovery requests.”).
addition, the Court's initial scheduling order informed
the parties that “[a]ny motions filed regarding
discovery must be accompanied by a certificate of counsel for
the moving party, stating that counsel have conferred in
person or by telephone for purposes of amicably resolving the
issues and stating why they are unable to agree or stating
that opposing counsel has refused to so confer after
reasonable notice.” (R. Doc. 50 at 4). Plaintiffs'
counsel makes no such representation in support of the
is no indication in the record that the parties held any
additional conferences with respect to written discovery
after the August 30, 2019 email and prior to the filing of
the instant motion. The Court extended the deadline to file
discovery motions in light of Plaintiffs' representation
that further “meet and confer efforts” would be
made between the parties to avoid court intervention. (R.
Doc. 134; see R. Doc. 123 at 1 n.2). The record
provides no support for finding that Plaintiffs' counsel
sought to resolve any disputes with respect to these written
discovery requests (in person, by telephone, or otherwise)
after the Court extended the deadline to file discovery
motions with the expectation that good faith conferences
would be held prior to the filing of any motions.
Court's denial of relief with respect to Interrogatory
No. 12 and Request for Production No. 12 on the basis of
failure to meet-and-confer in good faith is not made in a
vacuum. Plaintiffs provide no explanation why they waited
approximately one year to file a motion to compel with
respect to written discovery served on October 11, 2018. The
discovery requests pertaining to insurance litigation are not
limited in time or scope, and the record does not support a
finding that Plaintiffs attempted to limit the scope of those
overly broad requests prior to the filing of the motion.
While this is one of several motions to compel filed by
Plaintiffs at the close of discovery, the number of
defendants in this action is no excuse for failure to attempt
to resolve the parties' disputes without court
intervention. Moreover, this is not a case where Plaintiffs
are left without any discovery from the opposing party in
light of the failure to confer. Plaintiffs have had the
opportunity to obtain deposition testimony from Flowserve and
its experts. At oral argument, defense counsel asserted there
is no dispute that Flowserve manufactured and supplied valves