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, Armstrong International, Inc.
(“Armstrong”) (R. Doc. 166) filed on October 25,
2019. Plaintiffs' motion seeks an order compelling
Armstrong to provide supplemental responses to
Plaintiffs' Interrogatory Nos. 10, 11, 12, and 16, and
Request for Production Nos. 10, 11, 12, 13, and 28. Armstrong
filed an opposition indicating that supplemental responses
were provided after the filing of the motion. (R. Doc. 212).
served the underlying discovery requests on October 11, 2018.
(R. Docs. 166-2, 166-3). There is no dispute that Armstrong
provided responses to the discovery requests. (See
R. Doc. 166-4).
August 30, 2019, over seven months after receiving the
responses, Plaintiffs' counsel sent an email to defense
counsel identifying certain purported deficiencies with
respect to Armstrong's written discovery responses at
issue. (R. Doc. 165-5). The email stated that if supplemental
responses were not provided within 7 days, Plaintiffs would
seek court intervention. (R. Doc. 165-5 at 2). Defense
counsel represents that on September 6, 2019, the parties
discussed possible settlement and agreed that discovery
issues would be put on hold pending further settlement
discussions. (R. Doc. 212-1).
September 20, 2019, Plaintiffs and certain defendants
(including Armstrong) 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).
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. 166). 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. 166 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. Moreover,
Armstrong indicates that no additional communications between
counsel were made with respect to written discovery after the
September 6, 2019 conference. (R. Doc. 212-1 at 2).
November 12, 2019, the Court held oral argument on the
instant motion. (R. Doc. 211). At oral argument, the parties
agreed that with respect to Plaintiffs' Interrogatory No.
10 and Request for Production No. 10, Armstrong would, within
7 days of oral argument, identify which affirmative defenses
it was still pursuing in this action and provide a statement
of material facts in support of each remaining affirmative
defense. Defense counsel further represented that Armstrong
had withdrawn the government contractor defense, which
renders Plaintiffs' Interrogatory No. 11 moot.
Plaintiffs' counsel also represented that Interrogatory
No. 13, which seeks request for reservation of rights letters
from insurance disputes pertaining to this case, is
withdrawn. Finally, defense counsel agreed to produce any
missing verifications of responses within 7 days of oral
argument. To the extent the parties have reached agreements
with respect to issues raised in the motion to compel, the
Court will deny the motion as moot subject to each party
complying with their agreed upon resolution.
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 Armstrong
involving asbestos-related claims and production of all
associated documents in the records of those actions. The
parties also did not reach any agreements with respect to
Plaintiffs' Interrogatory No. 16 and Request for
Production No. 28, which collectively seek facts and
documents supporting Armstrong's contentions regarding
the foreseeability of the removal and/or installation of
asbestos-containing gaskets and other materials prior to 1978
on the relevant vessels.
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
counsel for the parties discussed putting discovery issues on
hold in light of settlement negotiations on September 6,
2019, there is no indication in the record that the parties
held any additional conferences with respect to written
discovery after that date 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 Plaintiffs'
Interrogatory Nos. 12 and 16, and Request for Production Nos.
12 and 28 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
will have the opportunity to obtain deposition testimony from
Armstrong and its experts if they have not done so already.
The record further indicates that Armstrong has provided
responses and productions with respect to Plaintiffs'
other written discovery ...