Erica Castro-Ramos v. Kaiser Permanente, et al Case No. ED CV 18-2630-GW (SPx) United States District Court, C.D. California Filed November 18, 2019 Counsel Gloria Dredd Haney, Gloria D. Haney Law Offices, Orange, CA, for Erica Castro-Ramos. James Louis Canto, II, Kenneth R. Pedroza, Michael Carlin, Cole Pedroza LLP, San Marino, CA, for Kaiser Permanente, et al. Pym, Sheri, United States Magistrate Judge Proceedings: (In Chambers) Order Denying Defendants' Motion to Compel and for Sanctions Without Prejudice for Failure to Comply with Local Rule 37 [29] *1 On October 22, 2019, defendants filed a Motion to Compel Plaintiff's Deposition and Production of Documents and Evidence (docket no. 29). Defendants noticed the motion for a hearing on November 19, 2019. Defendants ask the court to compel plaintiff Erica Castro-Ramos to appear for a second day of deposition and produce documents and her cellular phone in response to requests for production numbers 46, 49, 51, and 52. Defendants also request monetary sanctions for the attorneys' fees incurred in filing this motion and attempting to obtain discovery responses. The motion is supported by a declaration of defendants' counsel Michael Carlin (“Carlin Decl.”) and exhibits thereto. On October 28, 2019, plaintiff filed a Non-Opposition to Defendants' Motion to Compel. Defendants filed a Reply on November 5, 2019. After reviewing the papers filed, the court found a hearing on the motion would not materially assist the court, and so took the hearing off calendar. The court now denies the motion without prejudice for the reasons that follow. Local Rule 37-2.4 provides that the court will not consider a discovery motion in the absence of a joint stipulation unless there is a declaration from counsel for the moving party establishing that opposing counsel failed to confer or cooperate in the preparation of a joint stipulation. Although the motion here was brought under Rule 37, it was not filed in the form of a joint stipulation as normally required for all discovery motions by Local Rule 37-2. Instead, the motion was accompanied by a declaration stating plaintiff's counsel had failed to timely meet and confer since she postponed the original meet and confer conference over 10 days from the date of defendants' meet and confer letter. Carlin Decl. ¶ 15. Defendants argue plaintiff's counsel “repeatedly delayed the meet and confer teleconference.” D. Mem. at 9. However, the record indicates both parties agreed to meet and confer on October 8, 2019, which was more than 10 days from defendants' September 25, 2019 meet and confer letter, and plaintiff delayed the conference on only one occasion for only one additional day. Carlin Decl. ¶¶ 6-7. Defense counsel sent a meet and confer letter to plaintiff's counsel Gloria Haney on September 25, 2019. Id. ¶ 5. The following day, on September 26, 2019, plaintiff's counsel responded to defense counsel via email requesting to meet and confer telephonically on or around October 8, 2019. Id. ¶ 6, Ex. D. Before defense counsel even sent the September 25 letter, plaintiff's counsel informed defendants and the court that she would be on vacation from September 26 until October 7, 2019. See id.; docket no. 28. Defense counsel agreed to meet and confer telephonically on October 8, 2019 and did not object to that date on the basis that it was more than 10 days from defendants' September 25, 2019 meet and confer letter. Id. ¶ 7, Ex. E at 2. Upon returning from her vacation, plaintiff's counsel notified defense counsel that she was unavailable on October 8, 2019, and requested to meet and confer the following day. Id., Ex. E at 1. The parties did meet and confer telephonically on October 9, 2019. Id. ¶ 8. Thus, contrary to defendants' argument that plaintiff's counsel failed to timely meet and confer, the record indicates both parties agreed to the October 8, 2019 meet and confer date and plaintiff's counsel cooperated with defense counsel. The fact that plaintiff's counsel delayed the conference by one additional day is insufficient to excuse defendants' failure to file a joint stipulation pursuant to Local Rule 37-2. *2 The court's concern here is not so much with the technical joint stipulation requirement as with whether defense counsel truly made a good faith attempt to confer and resolve their disputes. See id. ¶ 8, Ex. F. In particular, in their October 9, 2019 email, defendants demanded that plaintiff produce documents in response to defendants' discovery requests or face a motion to compel and sanctions, and announced that they were not required to file a joint stipulation since plaintiff's counsel was unable to confer within 10 days of the September 25 letter — for good reason known to defendants before they sent the letter. See id. Defendants' conclusion that they were relieved of the joint stipulation requirement due to having sent their letter on the eve of plaintiff's vacation is simply wrong, and reflects a “gotcha” approach to litigation inconsistent with the intent and spirit of Local Rule 37. The joint stipulation requirement exists to weed out issues that can be resolved by the parties so the court is left with only genuine disputes to decide. That did not happen here. It appears defendants may have made an additional stab at compliance, in that defense counsel states he “emailed a copy of the issues reflected in dispute to Plaintiff's counsel on October 14, 2019 and requested that Plaintiff add her portion no later than 7 days thereafter.” Carlin Decl. ¶ 14. If by “the issues reflected in dispute” defendants mean their portion of the joint stipulation, then defendants did fairly attempt to comply with the joint stipulation requirement. The court cannot tell from this wording, and defendants did not provide the court with a copy of their October 14, 2019 email. Even assuming defendants technically complied with the joint stipulation requirement, there appears to be little actually in dispute, and nothing the parties are incapable of resolving on their own. Plaintiff filed a Non-Opposition to the Motion to Compel, and stated her only concern is for the information on her second phone “which relates to her family and not any issues in this case.” Non-Opposition at 2. Since plaintiff indicates the second phone was not used to text or email Andres Perez, it would not be responsive to request number 51, and thus not at issue in this motion. As for the other requests, the parties agree plaintiff has substantially complied with defendants' requests for production thus far, thereby eliminating most of the issues presented in defendants' motion. For example, plaintiff has produced most of the documents responsive to defendants' requests for production numbers 46 and 49, including her medical records and documents regarding her economic damages. Reply at 2; Non-Opposition at 2, Ex. B. Additionally, plaintiff does not object to a second day of deposition or producing the cell phone she used to communicate with Andres Perez. Non-Opposition at 1-2. As such, it appears the only remaining issues for the parties to resolve are whether plaintiff can provide defendants with her most recent pay stubs in response to request number 49, scheduling a second date for plaintiff's deposition, and determining a mutually acceptable plan for forensic inspection of plaintiff's cell phone. See Reply at 2; Non-Opposition at 1-2, Ex. C. Given plaintiff's Non-Opposition, there is no reason to believe the parties will be unable to resolve these details. The parties must continue their efforts before seeking relief from the court. As brought, the Motion to Compel was premature. Defendants also seek monetary sanctions for the attorneys' fees incurred in filing this motion and attempting to obtain discovery responses. Since the motion was premature and likely not needed at all, sanctions certainly are not warranted. In sum, it is clear the parties did not sufficiently confer in advance of the motion's filing to establish that a good faith effort was made to resolve the disputes prior to seeking court intervention. Accordingly, defendants' motion to compel discovery responses and for sanctions (docket no. 29) is DENIED without prejudice. The court orders the parties to continue to meet and confer to resolve the remaining disputes before again raising the matter with the court, if necessary. If any simple disputes remain that the parties believe may be resolved by the court telephonically on an informal basis, they may contact the magistrate judge's courtroom deputy to schedule a telephonic conference.