Martinez v. James River Ins. Co.
Martinez v. James River Ins. Co.
2020 WL 13533708 (D. Nev. 2020)
January 23, 2020

Koppe, Nancy J.,  United States Magistrate Judge

Failure to Produce
Cooperation of counsel
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Summary
The Court denied the motion to compel without prejudice due to a lack of detailed certification of the meet-and-confer efforts. With respect to ESI, the Court has not made any specific rulings, but the parties must comply with the technical certification requirements to ensure that the meet-and-confer process is meaningful.
JUAN JOSE MARTINEZ, Plaintiff(s),
v.
JAMES RIVER INSURANCE COMPANY, Defendant(s)
Case No. 2:19-cv-01646-RFB-NJK
United States District Court, D. Nevada
Filed January 23, 2020

Counsel

Ryan Alexander, Ryan Alexander, Chtd., Las Vegas, NV, for Plaintiff(s).
Deleela M. Ivey Weinerman, Jared G. Christensen, Lucian Greco, Jr., Bremer Whyte Brown & O'Meara LLP, Las Vegas, NV, for Defendant(s).
Koppe, Nancy J., United States Magistrate Judge

Order [Docket No. 16]

*1 Pending before the Court is Plaintiff's renewed motion to compel. Docket No. 16.[1] Defendant filed a response in opposition. Docket No. 17.
 
“Discovery is supposed to proceed with minimal involvement of the Court.” F.D.I.C. v. Butcher, 116 F.R.D. 196, 203 (E.D. Tenn. 1986). Counsel should strive to be cooperative, practical and sensible, and should seek judicial intervention “only in extraordinary situations that implicate truly significant interests.” In re Convergent Techs. Securities Litig., 108 F.R.D. 328, 331 (N.D. Cal. 1985). The Federal Rules of Civil Procedure require that the party bringing a 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). The Local Rules further expound on this requirement, providing that discovery motions will not be considered “unless the movant (1) has made a good faith effort to meet and confer ... before filing the motion, and (2) includes a declaration setting forth the details and results of the meet-and-confer conference about each disputed discovery request.” Local Rule 26-7(c).
 
Judges in this District have held that these rules require that the movant must “personally engage in two-way communication with the nonresponding party to meaningfully discuss each contested discovery dispute in a genuine effort to avoid judicial intervention.” ShuffleMaster, Inc. v. Progressive Games, Inc., 170 F.R.D. 166, 171 (D. Nev. 1996). The consultation obligation “promote[s] a frank exchange between counsel to resolve issues by agreement or to at least narrow and focus matters in controversy before judicial resolution is sought.” Nevada Power v. Monsanto, 151 F.R.D. 118, 120 (D.Nev.1993). To meet this obligation, parties must “treat the informal negotiation process as a substitute for, and not simply a formalistic prerequisite to, judicial resolution of discovery disputes.” Id. This is done when the parties “present to each other the merits of their respective positions with the same candor, specificity, and support during the informal negotiations as during the briefing of discovery motions.” Id. To ensure that parties comply with these requirements, movants must file certifications that “accurately and specifically convey to the court who, where, how, and when the respective parties attempted to personally resolve the discovery dispute.” ShuffleMaster, 170 F.R.D. at 170.[2] Courts may look beyond the certification made to determine whether a sufficient meet-and-confer actually took place. See, e.g., Cardoza v. Bloomin’ Brands, Inc., 141 F. Supp. 3d 1137, 1145 (D. Nev. 2015).
 
Plaintiff's motion asserts that counsel has engaged in meet-and-confer efforts that proved unsuccessful. See Mot. at 1. With respect to the telephonic portion of the meet-and-confer, the motion states without elaboration that, “[o]n December 16, 2019, Counsel and Mr. Christensen had a phone conference and discussed the responses. No resolution was reached about the missing response material.” See id. at 6; see also id. at 23 (declaration from counsel). Such a conclusory assertion does not satisfy the technical certification requirements described above, which require a more-detailed specification of the meet-and-confer efforts. That shortcoming is especially important here because defense counsel has filed a sworn declaration attesting that the referenced telephone call lasted a total of seven minutes and was focused on discussion regarding mediation, not discovery. See Resp. at 2. Defense counsel recollects that there may have been brief discussion regarding Plaintiff's desire to obtain the claims file, but that the written discovery in dispute (which spans five interrogatories and eight requests for production) was not otherwise discussed in meaningful fashion. See id. From this declaration, it is apparent that counsel treated the telephonic conference as a mere formality to filing the instant motion rather than engaging in the thorough discussion that was required. See, e.g., Nevada Power, 151 F.R.D. at 120.
 
*2 Accordingly, the renewed motion to compel is DENIED without prejudice.
 
IT IS SO ORDERED.

Footnotes
Plaintiff's initial motion to compel was denied for failing to provide meaningfully developed argument. Docket No. 14.
These requirements are now largely codified in the Court's local rules. See Local Rule 26-7(c), Local Rule IA 1-3(f).