Middle District of Louisiana: Rule 37(a)(1), Opposing Counsel Must Refuse to Confer After Reasonable

This past Thursday, in Lewis v. E. Baton Rogue Parish, 16-352-JWD-RLB, 2018 U.S. Dist. LEXIS 134433 (M.D. La. Aug. 9, 2018), Magistrate Judge Richard L. Bourgeois, Jr. denied the Plaintiff's Third Motion to Compel Against Sheriff Gautreaux.

The parties in this case held multiple conferences on ESi search terms used by the parties without coming to an agreement on which terms should be used. The parties exchanged screen shots regarding the searches. The Defendants filed a brief objecting to the Plaintiff's search terms and proposing alternative search terms. Sheriff Gautreaux opposed the motion on the basis of the Plaintiff's failure to comply with Fed. R. Civ. P. 37(a).

After the defense counsel contended at oral argument that it would take 2-3 weeks to agree on search terms, and 3 months to collect, review and produce relevant ESI, the Court suspended all discovery deadlines. Fed. R. Civ. P. 37(a)(1) requires that a motion to compel include a certification that the party attempted to confer with the party failing to make a production. No such certification was submitted in this case, but the Plaintiff did submit an affidavit stating that he was unable to meet and confer with defense counsel. Since defense counsel continued to negotiate on the terms of the ESI protocol, the Court found that the Plaintiff violated Fed. R. Civ. P. 37(a)(1) and also failed to comply with a scheduling order that a meet and confer was conducted to resolve the dispute, and that opposing counsel refused to do so after a reasonable notice.

The Court concluded that, "Any future Rule 37 certificate filed in this action must specifically set forth the following: (1) how the conference was scheduled and agreed upon, (2) who participated in the conference, (3)when the conference took place, (4) whether the conference was conducted by phone or in person, (5)the duration of the conference, (6) the specific, itemized topics that were addressed at the conference, and (7) whether any issues were resolved by the parties. In the alternative, the Rule 37 certificate must detail the moving counsel's good faith attempts to confer with opposing counsel and provide evidence that opposing counsel refused to confer after reasonable notice." Id. at *8.