Post Process

Everything to do with E-discovery & ESI

Case Blurb: Cunningham; Court Examines Motion Accusing Party of ‘Failing to Confer’

Posted by rjbiii on August 13, 2008

As a preliminary matter, counsel disagree on whether Plaintiff satisfied the duty to confer pursuant to D.C. Colo. L. Civ. R. 7.1(A). Plaintiff’s certification asserts that counsel made reasonable, good-faith efforts to resolve Defendant’s objections to the Requests for Admission (“RFA”) before filing the Motion with the Court. Pursuant to Local Rule 7.1(A), the Court will not consider a nondispositive motion unless the movant, prior to filing, has conferred or made reasonable, good-faith efforts to confer with opposing counsel to resolve the dispute. To confer means to “discuss, talk over, consult about,” or “to hold conference.” See Oxford English Dictionary (2d ed. 1989). Accordingly, the language of Local Rule 7.1(A) suggests that parties confer by “hold[ing] a conference, possibly through the exchange of correspondence but preferably through person-to-person telephone calls or face-to-face meetings, and [by] compar[ing] views and attempt[ing] to reach an agreement, including by compromise if appropriate.” Hoelzel v. First Select Corp., 214 F.R.D. 634, 636 (D. Colo. 2003). If both parties have not discussed and compared views in an attempt to reach an agreement, the movant must at least make reasonable, good-faith efforts to do so. The Court judges the reasonableness of movant’s good-faith efforts by considering not only the sheer quantity of contacts, but also their quality. Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 456, 459 (D. Kan. 1999) (holding that four phone calls and two letters did not satisfy the duty to make a reasonable, good-faith effort to confer).

On March 24, 2008, Plaintiff’s counsel mailed Defendant a single letter that requested that Defendant reconsider its objections to the RFAs. This letter did not threaten filing the Motion if Defendant failed to respond immediately. See id. Plaintiff offers no evidence of Defendant’s response to this letter, if any. Only seven days later, on March 31, 2008, Plaintiff filed the Motion. This is insufficient evidence of a good-faith attempt to confer pursuant to Local Rule 7.1(A). The Court notes that it would be permissible to deny the Motion on the basis of Plaintiff’s failure to confer pursuant to Local Rule 7.1(A). However, the Court declines to deny the Motion on that basis and will decide it on the merits. Counsel are warned that a failure to confer in the future will result in summary denial of any motion. Cunningham v. Std. Fire Ins. Co., 2008 U.S. Dist. LEXIS 52518, 1-3 (D. Colo. May 29, 2008 ) (internal citations to pleadings removed).

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