Trial Magazine

Meet and confer: It is required under the Federal Rules of Civil Procedure and in almost every state court. Rule 37 obligates a party to certify, along with its motion to compel, that it “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.”¹

Seems reasonable, right? Meet and confer was designed to allow parties to negotiate privately while conserving judicial resources. Yet it has become something altogether different, with the defense bar using meet and confer as a tool to delay litigation. Plaintiffs need to counter this by insisting on an efficient process.

Here are some of the do’s and don’ts for getting the most out of your meet and confers—and to incorporate into any case management orders (CMOs) governing the discovery process.

Do: prepare. Instead of approaching the meet and confer as a pro forma step along the way to your next court appearance, think critically about the discovery you are seeking. If the discovery is unlikely to play a meaningful role in overcoming a dispositive motion, persuading jurors, or leveraging a settlement, you may not need it. The meet and confer is as much about proactively separating the wheat from the chaff as it is about compelling the defendant’s production of evidence.

Don’t: reserve. We live a constant game of Battleship in which we try to divine the defendant’s strategy without unnecessarily divulging our own. However, the meet and confer is an exception. Resist the urge to play “gotcha,” so that you can cultivate a reputation for reasonableness with the court at the next hearing. While you may not ultimately get the ruling you wanted, hiding the ball or pulling a bait-and-switch is a surefire way to both lose your motion and leave the judge with a lasting negative impression.

For example, telling a judge that the discovery of certain information is critical to evaluating early settlement only to later refuse to attend a judicial mediation is apt to hurt your credibility with the court. It’s also unlikely that the other side is in the dark about your strategy, and if you can be candid in your approach, you may learn more from them than they learn from you.

Be proactive about scheduling the meet and confer, follow up with the defendant early and often, and clearly establish your expectations for when the negotiations will be exhausted.

Do: try to compromise. Few discovery rulings are absolute wins or losses, so you should think hard about taking an all-or-nothing approach to the meet and confer. Think about whether you can use the meet and confer to frame less valuable discovery as something the defendant would be happy to avoid producing. For instance, you might narrow the scope of a request for other similar incidents (OSIs) to those of which you are already aware and know are directly relevant to your case. By doing so, you are more likely to get the evidence you truly care about, and you may also misdirect the defendant as to your overall strategy.

Don’t: languish. This may be the most important point. Defendants prolong the meet and confer because it can significantly delay the production of valuable evidence—eroding the discovery period until plaintiffs finally get the evidence without enough time to do anything with it. So be proactive about scheduling the meet and confer, follow up with the defendant early and often, and clearly establish your expectations for when the negotiations will be exhausted. Document the outcome in writing, and incorporate a provision in any proposed CMO that allows the requesting party to declare the process over. In many jurisdictions, you, not the defendant, control when the meet and confer is done.²

Do: document, document, document. An accurate accounting of the discussion is absolutely necessary to preserve this information for future use. Immediately memorialize your conversation, and consider sharing it with defense counsel. In extremely contentious cases, it may be appropriate to have the meet and confer recorded or professionally transcribed so there is no doubt about what was discussed and agreed to.

Don’t: forget. It’s easy for parties to take inconsistent discovery positions throughout the life of a case. Think carefully about how your position during a meet and confer can be used against you in the future. Keep all your meet and confer correspondence in folders, and refer back to it. Then, if the defendant raises an argument to conveniently avoid or obtain discovery, do not hesitate to remind it (and the court) that what goes around comes around. This is especially true with e-discovery when defendants are all too quick to claim their data is inaccessible, only to turn around and demand that plaintiffs pay the exorbitant cost to produce social media discovery that the platforms make inaccessible.

The meet and confer is more than a conversation about a short-term discovery dispute. It is one of the building blocks of your greater litigation strategy that demands the same thought and attention as the rest of your case.

Beth Graham is a principal at Grant & Eisenhofer in San Francisco, and Adam Gomez is a principal at the firm in Wilmington, Del. They can be reached at egraham@gelaw.com and agomez@gelaw.com.

Notes

1. Fed. R. Civ. P. 37(a)(1). State courts require the same. For example, California requires parties to meet and confer in a “reasonable and good faith attempt at an informal resolution of each issue presented by the [discovery] motion.” See Cal. Civ. Proc. Code §2016.040 (West 2021). See also Obregon v. Superior Ct. of L.A. Cty., 79 Cal. Rptr. 2d 62 (Cal. Ct. App. 1998) (discussing the factors in determining whether a party has acted in “good faith” during a meet and confer); Liebel-Flarsheim Co. v. Medrad, Inc., 2006 WL 335846 (S.D. Ohio Feb. 14, 2006) (a meet and confer “is a conference in which opposing parties actually talk to one another” rather than exchange briefs); Craft Smith, LLC v. EC Design, LLC, 2018 WL 1725465 (D. Utah Apr. 6, 2018) (“The court considers a meaningful meet-and-confer to be essential to the parties’ obligation to secure the speedy and inexpensive resolution of [an] action.”).
2. Obregon, 79 Cal. Rptr. 2d at 67 (a meet and confer is over when the requesting party reasonably believes that further discussions will not bear fruit).