Rule 37’s “Meet and Confer” Requirement Gaining Steam in Discovery Disputes

Merz N. Am., Inc. v. Cytophyl, Inc. is the latest federal district court decision analyzing the meet and confer requirement of Federal Rule of Civil Procedure 37. As discovery issues continue to dominate the first 12 to 18 months of civil litigation (depending on the jurisdiction), litigators should review recent decisions, at least one of which denied a discovery motion for failure to adequately meet and confer.

Under Rule 37(a)(1), a party moving to compel discovery must certify that it “has in good faith conferred or attempted to confer with the person or party failing to make . . . discovery in an effort to obtain it without court action.” Because neither the Rule nor the advisory notes accompanying it specify which methods of conferring are appropriate, individual courts have interpreted Rule 37’s meet and confer requirement through local rules and judicial decisions. For example, the Local Rules for the Eastern District of Texas require, “at a minimum, a personal conference, by telephone or in person, between an attorney for the movant and an attorney for the non-movant.” Further, while some courts have addressed the merits of a motion to compel despite a failure to adequately meet and confer, see, e.g., Buskirk v. Wiles, 2016 U.S. Dist. LEXIS 168081 at *7 (S.D. W. Va. Dec. 6, 2016), others have denied substantive relief due to a party’s failure to properly meet and confer. See Beasley v. State Farm Mut. Auto. Ins. Co., 2014 U.S. Dist. LEXIS 41518, at *5 (W.D. Wash. Mar. 25, 2014) (denying motion to compel for failure to comply with F.R.C.P. 37(a)(1) and Local Civ. R. 37(a)(1)).

In Merz v. Cytophyl, the court addressed the merits of a motion to compel despite a failure to adequately meet and confer. There, defendant Cytophil moved to compel discovery from the plaintiff, Merz. After Merz responded to 165 document requests served by Cytophil, Cytophil served two letters demanding supplementation of 35 of the requests. Merz then served a lengthy and detailed response letter and heard nothing more about the dispute for almost eight weeks, until an email from Cytophil demanded that Merz supplement 33 of its responses by 10:00 a.m. the following morning. The parties then allegedly did not communicate further about the requests before Cytophil moved to compel responses to 11 of the requests.

The court found that the parties’ communications did not satisfy Rule 37 or the court’s local meet and confer requirement. The local rules required counsel to “certify that there ha[d] been a good faith effort to resolve discovery disputes prior to the filing of any discovery motions.” The court noted that meet and confer requirements are not satisfied by merely demanding compliance with discovery requests or by mailing a letter to the opposing party. Instead, the rules require parties to “converse, confer, compare views, consult and deliberate, or in good faith attempt to do so.” (emphasis in original) (citations omitted) The court reasoned that any discovery conference should be conducted in person or telephonically, absent exceptional circumstances, but, nevertheless, granted-in-part and denied-in-part Cytophil’s motion, with each party bearing its own expenses.

Because different district courts construe Rule 37’s meet and confer requirement differently and many have their own local rules interpreting the requirement, outside counsel should always check relevant local rules and the decisions of their own presiding judge before moving to compel discovery. While the Beasley opinion denying relief because of a failure to meet and confer arguably represents a minority view, other courts are expected to follow Beasley’s lead given the increasing number of discovery disputes currently clogging federal court dockets.

Wendy R. Stein is Counsel in the Gibbons Intellectual Property Department. Jean E. Dassie is a Law Clerk in the Intellectual Property Department. Both litigate patent infringement and other IP litigation matters in federal courts.
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