Lack of Meet and Confer

Lack of Meet and Confer Leads to Denial of Defendant Motions: eDiscovery Case Law

In Anstead v. Va. Mason Med. Ctr., No. 2:21-cv-00447-JCC-JRC (W.D. Wash. Sept. 23, 2022), Washington Magistrate Judge J. Richard Creatura denied defendants’ motions to compel, for sanctions, and for a protective order without prejudice, stating that defendants “may re-file these motions at a future date after a good faith attempt to meet and confer has taken place.”

Case Discussion

In this employment discrimination case involving a former employee of the defendant who was terminated after taking and extending a medical leave, Judge Creatura reflected the discovery challenges in the case, noting: “The parties to this employment discrimination lawsuit have had repeatedly sought this Court’s intervention in discovery disputes, with defendant, in particular, often filing new discovery motions either immediately after the Court’s resolution of previous motions, or while its own prior motions are still pending.”

Defendants’ second set of interrogatories and requests for production (“RFPs”) included RFP 35, a request for “all documents in your possession, custody, or control that you obtained from [d]efendants at any time[,]…” Plaintiff objected to the request as “overly broad” and “unduly burdensome,” reasoning that it included “information which has no bearing on this litigation which could potentially exceed 365,000 communications[.]” In response, defendant did not address the substance of plaintiff’s objection, but expressed concern that plaintiff had exfiltrated an extensive amount of information, including confidential patient health information, from defendants’ computer systems by forwarding electronic mail from her work account to her personal account.

During depositions, plaintiff introduced documents that, while responsive to defendants’ requests for production, did not display Bates stamps to indicate that they had been produced in discovery, and on two occasions, plaintiff introduced documents that had never been produced at all. Plaintiff attributed these mistakes to the sheer volume of documents involved, and management of deposition exhibits in a separate software application, but defendant maintained that plaintiff did it intentionally for strategic reasons.

Defendant requested a meet and confer with plaintiff after plaintiff planned another production after another scheduled deposition was to occur and, as a result of the meet and confer, the plaintiff produced 200 pages to defendants at 11:39 P.M. the evening before the deposition was to occur the next day. Defendant interpreted this manner of production as further gamesmanship to prevent meaningful pre-deposition review of the documents and, ultimately, canceled the deposition, stating that the deponent was required to perform a surgery that “went long unexpectedly.” Defendant also stated that “[d]espite the surgery complications, we would not have allowed [deponent] to proceed as a result of [p]laintiff’s discovery abuses[,]” and stated that the deposition would need to be rescheduled.

After additional discovery disputes (including a dispute over the plaintiff’s privilege log), defendant filed the motion to compel discovery of all ESI exfiltrated by plaintiff during her employment with defendant and require plaintiff to pay fees and costs associated with bringing the motion. A week later, defendant filed a motion for a protective order to require that plaintiff use only documents with Bates stamps in depositions and produce all documents to be used in depositions ten days in advance.

The plaintiff complained that the defendant failed to confer with plaintiff in good faith before moving to compel production of the documents in question, contrary to Fed. R. Civ. P. 37(a)(1) and alleged that defendants failed to confer regarding its overbreadth objection to the request for production and regarding the adequacy of plaintiff’s privilege log. The defendant called the claim “untrue and misleading”, alleging that “Plaintiff rebuffed every effort by Defendants to resolve this issue in good faith without Court intervention” and citing to its own electronic mail messages discussing the scope of the meet and confer.

Judge’s Ruling

Judge Creatura stated: “Defendants’ contention is without merit. Defendant has not indicated that it addressed plaintiff’s objections to its RFP in good faith during the parties’ meet and confer, as opposed to reiterating its prior accusations without accounting for plaintiff’s objections or raising the privilege log issue. In addition, defendants’ opening brief and reply identify additional concerns that could not have been discussed in the parties’ July 28 conference, including the adequacy of plaintiff’s August 3rd production and accompanying privilege log…Furthermore, for the first time on reply, defendant raises additional concerns regarding plaintiff’s undisclosed storage materials and asks the Court for further relief not mentioned in its opening brief…Defendants’ attempt to stretch the scope of the July 28 conference so as to encompass events that occurred afterward is unavailing.”

As a result, Judge Creatura stated: “the Court DENIES defendants’ motions to compel, for sanctions, and for a protective order without prejudice. Defendants may re-file these motions at a future date after a good faith attempt to meet and confer has taken place. The parties are reminded that the Court has discretion to award sanctions against both or either the moving party or the non-moving party, if the parties do not attempt to resolve these matters in good faith without Court intervention.”

So, what do you think? Should the court have required the meet and confer or did the defendant to enough to try to work out the issues first? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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