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,...