The purpose of the “meet and confer” requirements set forth in C.C.P. §§ 2025.450(b)(2), 2025.480, 2030.300(b), 2031.310(b), 2032.250 and 2033.290 was for the lawyers to revisit their position, and in good faith, discuss a resolution in order to avoid unnecessary discovery motions.
Unfortunately, times have changed since the Discovery Act of 1986 went into effect. No longer can a law firm afford to have an associate sit at the knees of a respected senior partner and watch, listen, and learn without billing. No longer do lawyers have time for the “two-martini” lunch in order to get input from their colleagues about cases with which they are having trouble. No longer is the legal community so small that you know you are going to see opposing counsel again and fear their retaliation.
For the last thirty years, many of us had to learn how to litigate by doing and then suffering the repercussions. Bad habits, abuse, and inaccuracies regarding the law have begat more bad habits, abuses, and inaccuracies. It seems like more and more cases are doing battle in the gutter than in the courtrooms. This is most evident in the discovery battles and the failure of counsel to “meet and confer” in good faith.
Despite a party’s threat that they will seek sanctions, no court is going to award sanctions if you don’t meet and confer in good faith, and in fact, will sanction you if you don’t.
What is a Good Faith Meet and Confer
The court will look at the following relevant factors in determining whether a party has met and conferred in good faith:
- The history of the case and the past conduct of counsel as it reflects upon the bona fides of their efforts;
- The nature and extent of the actual efforts expended;
- The nature of the discovery requested and its importance to the case;
- The size and complexity of the case;
- The effect of expense upon litigation of the case; and
- Whether or not the discovery propounded would be so expensive for the other side that its intent was to force settlement other than to reach the merits of the case. See Obregon v. Superior Court (1998) 67 CA4th 424, 431
Obregon is a helpful case for the court’s, but what about the litigants. What should they be doing? According to Townsend v. Superior Court (1998) 61 CA 4th 1431-1439:
a reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel . . . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”
Failure to meet and confer in good faith constitutes “misuse of the discovery process.” [C.C.P. §2023.010(i)]
Meeting and Conferring with Opposing Counsel
Taking the above factors into consideration, review your requests and determine whether or not the objections are valid. Once you have determined that you will need supplemental responses to your propounded discovery, call opposing counsel and set up a time to meet in person. Tell them that you will prepare a written response to the objections so you can go through them when you meet. Also, consider offering to prepare a protective order and agreeing to a discovery referee.
Review your requests and determine whether or not the objections are valid. Prepare your written “meet and confer” letter in the format of a Separate Statement of Items in Dispute. That way you are ready to file your motion to compel further responses, if it becomes necessary. Remember a “single brief letter” with no explanation why the discovery was proper does not constitute a reasonable and good faith attempt at informal resolution. See Obregon at 432.
Include in your letter the names of potential discovery referees to whom you would be willing to stipulate to for the limited purpose of reviewing the category of documents in the request, performing an in camera review and preparing a recommendation to the court. Or, alternatively, agree to a Discovery Referee to aid the parties in the meet and confer process.
Enclose with your letter a draft protective order to discuss at the meeting if any objections are as to privacy, trade secrets, etc.
Finally, request a written agreement extending your time to bring a motion to compel further responses. This meet and confer process DOES NOT extend the 45-day limit within which you must file a motion to compel further responses. [C.C.P. §2031.310(c)] See Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal. App. 3d 681 at 683-684 and Sexton v. Superior Court (1997) 58 CA4th 1403, 1409-1410 where the courts have found the 45-day time limit as “jurisdictional.”
MORAL OF THE STORY: Litigators need to put down the sword and talk to one another when the discovery battles begin. These battles cost your clients money and you too much time and angst. But if you do have to file that motion to compel further responses make sure you are reasonable and can show that you made every effort to work out a resolution.
NEXT: If the Meet and Confer Process Fails, Ask for Help.