*1 On March 22, 2021, defendants filed a Motion to compel (“Motion”) seeking an order requiring plaintiff to produce all documents on her previously-produced privilege log, as well as all documents defendants contend plaintiff deleted from her work-owned laptop computer before surrendering it to Olympusat on October 29, 2019, when she left the company. (ECF No. 133). On March 23, 2021, defendants filed an Ex Parte Application to stay the case except as to defendants' Motion to compel and to any motion for terminating sanctions or disqualification of plaintiff's counsel it may bring if it is determined that plaintiff and/or her counsel willfully spoliated evidence stored on the company laptop. (ECF No. 134). On March 25, 2021, plaintiff filed her opposition to defendants' ex parte application for an order staying the case. (ECF No. 135). Then, on March 26, 2021, plaintiff filed her own Ex Parte Application (“Application” or “App.” (ECF No. 136)), seeking to strike defendants' March 22, 2021, Motion to compel, or for an order continuing the hearing date on the motion from April 21, 2021, to May 5, 2021, and moving all briefing deadlines accordingly.

Plaintiff contends that good cause exists for seeking ex parte relief because she had been diligent in her attempt to informally resolve the issues raised in defendants' Motion to compel, and twice informed defendants that she needed additional time to meet and confer, notwithstanding defendants' failure to follow the pre-filing and joint stipulation procedures required by Local Rule 37 prior to filing their Motion. (App. at 1). Specifically, plaintiff argues that defendants' March 9, 2021, email -- described by defendant as a “L.R. 37-1 meet-and-confer-letter” -- was not compliant with the Local Rules, as it failed to expressly request a conference of counsel as required by the Local Rules; and defendants also never mentioned that they would file their Motion to compel if plaintiff did not participate in a conference of counsel by March 19, 2021. (Id.). Instead, plaintiff submits that defendants filed their Motion, as well as their ex parte application requesting a stay, without having met and conferred about either filing. (Id.).

On March 29, 2021, defendants filed an Opposition (Opp'n”) to plaintiff's Application. (ECF No. 137).

In their Opposition, defendants contend that there is no emergency warranting plaintiff's request for ex parte relief. (Opp'n at 1). They state that “[n]othing external to this Court's procedures is going to change the situation and make it impossible for the Court to do justice.” (Id.). They argue that instead of filing her Application, plaintiff could have incorporated the arguments she made in the Application into her opposition to their Motion. (Id.). Defendants also contend that their March 9, 2021, letter meets the requirements of Local Rule 37-1, and that “Plaintiff's counsel failed to meet and confer within 10 days in response to that letter, as Local Rule 37-1 requires.” (Id. at 4). Because plaintiff's counsel failed to meet and confer within ten days in response to the March 9, 2021, email letter, defendants further contend that their March 22, 2021, noticed motion was authorized under Local Rule 37-2.4. (Id.). Finally, defendants submit that the parties' positions regarding the disputed issues are “fundamental and irreconcilable.” (Id. at 11). They argue that although plaintiff suggests that a meet and confer session “might be fruitful,” “there is in fact almost no chance that a meet and confer session would be fruitful,” in light of “Olympusat's unequivocal positions, as set forth in the pending noticed motion.” (Id.).

Analysis

*2 After reviewing the arguments of the parties, and considering defendants' March 9, 2021, letter to plaintiff's counsel regarding the subject dispute, the Court determines that defendants failed to follow the procedures set forth in Local Rule 37 prior to filing their Motion to compel. This lack of compliance is yet another example of counsels' failure to behave as expected of federal court litigants, a failure that has permeated this action.

Local Rule 37-1 requires that “counsel for the opposing party must confer with counsel for the moving party within ten days after the moving party serves a letter requesting such conference.” C.D. Cal. R. 37-1 (emphasis added). Here, the March 9, 2021, letter did not meet the requirements set forth in Local Rule 37-1: although defendants' letter identified the issues in dispute, and their position on the issues, they failed to arrange for a pre-filing conference of counsel and, in fact, did not even request that such a conference be held within a ten-day period as required by Local Rule 37-1. Instead, after setting forth their issues, defendants simply demanded only that plaintiff “produce -- no later than Friday, March 12, 2021 -- all documents identified on the July 10, 2020 Privilege Log, and all communications between Plaintiff and Ms. Wagner that were deleted from the Laptop” as had been identified by defendants' computer forensics expert. (Zhen Decl. Ex. 1). Nowhere in the letter, or in their conduct after sending the letter, did defendants fulfill their “responsibility ... to arrange for” the conference. Instead, they merely sat back and waited for the days to tick by, despite counsel for plaintiff indicating the need for additional time to meet.

“The Court will not consider any discovery motion in the absence of a joint stipulation or a declaration from counsel for the moving party establishing that opposing counsel (a) failed to confer in a timely manner under L.R. 37-1; (b) failed to provide the opposing party's portion of the joint stipulation in a timely manner under L.R. 37-2.2; or (c) refused to sign and return the joint stipulation after the opposing party's portion was added.” C.D. Cal. R. 37-2.4.

Here, defendants' counsel submitted a declaration with defendants' Motion, and stated that he sent a “meet and confer letter” on March 9, 2021, purportedly “demanding pursuant to Central District Local Rule 37-1 that [plaintiff] meet and confer regarding the issues now argued” in defendants' Motion. (Opp'n Valenzuela Decl. ¶ 2). Defendants argue that the “ten-day period prescribed by Local Rule 37-1 expired ten-days later, on March 19, 2021,” because plaintiff failed to confer by that date. (Opp'n at 10; Valenzuela Decl. ¶ 4). However, such an assertion is only true if defendants' letter constitutes a proper request to conduct a Local Rule 37-1 pre-filing conference of counsel in the first place. The Court finds that it does not.

Defendants' March 9, 2021, letter did not “demand[ ] ... that [plaintiff] meet and confer” as represented by defendants (Opp'n at 8); instead, defendants' letter demanded only that plaintiff produce all the disputed documents by March 12, 2021 -- three days later. (Zhen Decl. Ex. 1). Defendants never suggested or requested a conference of counsel before filing a motion to compel, and they failed to propose any date and time for a conference in their March 9, 2021, letter. (Id.); see Estate of Najera-Aguirre v. Cnty. of Riverside, 2018 WL 10152556, at *3 (C.D. Cal. Dec. 7, 2018). As such, the Court determines that defendants' March 9, 2021, letter -- while arguably constituting an attempt to initiate the meet and confer process regarding disputed discovery issues -- did not meet the pre-filing requirements of Local Rule 37-1, including the requirement for the moving party to arrange to meet and confer in good faith before submitting a discovery motion to this Court. Indeed, defendants' letter was simply a demand for plaintiff to acquiesce to defendants' proffered authority and to produce the disputed documents within a short time period. As such, plaintiff was under no obligation to meet any ten-day deadline. C.D. Cal. R. 37-1.

*3 Accordingly, plaintiff's Application to strike defendants' Motion to compel (ECF No. 136) is granted and defendants' Motion to compel production of documents (ECF No. 133) is denied without prejudice to refiling, if warranted, after conducting the good faith conference of counsel required by Local Rule 37-1, utilizing the procedures set by the Court herein.

The parties have been advised by this Court on several occasions that they have not been conducting themselves with the professionalism expected by the Court from parties in federal cases to work cooperatively and in good faith to confer with each other on basic discovery issues prior to filing a motion with the Court. (ECF Nos. 59, 127, 129). Indeed, counsel of record for all parties previously submitted declarations to the Court stating that they have read -- and agree to fully abide by -- the Central District's Civility and Professionalism Guidelines (“Guidelines”). (ECF Nos. 63-68). This Court has also admonished the parties about their excessive reliance on ex parte applications with regard to their previous discovery disputes. (ECF No. 59). And, the District Judge has previously made it crystal clear that the Court will “not become involved with counsel's petty squabbles,” and the “parties should begin immediately to act professionally in their dealings with each other.” (ECF No. 56).

Yet, this Court currently has on its calendar one Motion to compel and two ex parte applications -- all served within a four-day period. The Court's review of these documents -- in which each side points at the other's purported bad behavior -- serves only to further demonstrate to this Court that the parties are not working together cooperatively and in good faith to confer with each other on discovery issues in compliance with the Local Rules, the Guidelines, and/or the Federal Rules of Civil Procedure. Moreover, the Court sees no attempt to remedy that situation with respect to the disputes currently before it. The tone and content of the motion and applications continue to reflect that the parties are not fully working together in order to resolve or narrow their discovery disputes, and also reflect that there may be some gamesmanship underlying the recent filings on the part of one or both parties.

In fact, the seeming inability of the parties to meaningfully engage in the required meet and confer process is highlighted in this instance by defendants' admitted “unequivocal” intransigence with respect to their position as to the production of the subject documents, and their fatalistic conclusion (based entirely on defendants' own unwillingness to meaningfully discuss with plaintiff any opposing views or authority) that the laptop document dispute is “irreconcilable.” This is not the intent behind the meet and confer requirements of the Local Rules, the Guidelines, or the Federal Rules of Civil Procedure.

In light of the parties' history, should either party seek to bring any future discovery motion or application in this action, then prior to filing such a motion, at a mutually agreed upon date and time,[1] the parties' counsel shall first meet telephonically[2] – as described below -- in a good faith effort to eliminate the necessity for hearing the motion or to eliminate as many of the disputes as possible. The parties are advised that the Court will not consider any future discovery motion -- including defendants' Motion to compel should they decide to refile it -- unless it is convinced that there has been a serious good faith effort to meet and confer and narrow the issues presented to the Court. In short, the good faith meet and confer needs to be completed before any Joint Stipulation, Motion, or Application related to a discovery dispute is prepared or filed.

*4 Additionally, the “meet and confer” in connection with any future discovery motion in this action must be transcribed by a court reporter, a copy of the transcript shall be included in any future discovery motion that may be filed, and the transcript must reflect a good faith effort by the parties to attempt to resolve their differences before seeking a ruling from the Court. The cost of the court reporter shall be equally borne by both parties, unless otherwise ordered by the Court. If, following the meet and confer, any of the issues specifically addressed have not been resolved, then the parties may initiate the Joint Stipulation procedures set forth in Local Rule 37-2, and shall proceed accordingly. Full compliance with Local Rule 37 is required.

Counsel are again advised that “failure of any counsel to comply or cooperate” in the Joint Stipulation procedures of Local Rule 37 “may result in the imposition of sanctions.” C.D. Cal. R. 37-4.

IT IS SO ORDERED.