United States District Court, D. Nevada
C. THERESA MARTIN, Plaintiff,
STATE OF NEVADA, DIVISION OF INSURANCE, Defendant.
WILLIAM G. COBB, Magistrate Judge.
Before the court is Plaintiff's motion to compel Defendant State of Nevada, Division of Insurance, to respond to Discovery (Doc. # 42) and for an extension of Plaintiff's discovery deadline (Doc. # 43). The Defendant (State of Nevada, Division of Insurance) submitted its opposition to Plaintiff's motion. (Doc. # 46.) Plaintiff replied in Doc. # 47.
Plaintiff commenced an age and gender discrimination action on January 30, 2013. (Doc. # 1.) On April 26, 2013, District Judge Robert C. Jones dismissed Plaintiff's action on the basis of Eleventh Amendment immunity the State of Nevada enjoys. (Doc. #19.) Without leave of court, Plaintiff filed an amended complaint. (Doc. # 22.) Plaintiff was allowed, however, to request leave to file an amended complaint if she complied with Fed. R Civ. P. 15(a)(2) and Local Rule 15-1(a). (Doc. # 25.) Plaintiff thereafter filed a motion for leave to file an amended complaint (Doc. # 30), which motion the court granted on September 19, 2013. (Doc, # 36.) A second amended complaint was filed on that date. (Doc. # 37.) Defendant answered the second amended complaint on October 4, 2013. (Doc. # 38.)
The gravamen of the second amended complaint is gender discrimination (Doc. #37), as the age discrimination claim was previously extinguished by the court in its order. (Doc. # 19.) The second amended complaint also includes allegations of breach of contract.
II. MOTION TO COMPEL (Doc. # 42)
Plaintiff's motion identifies five requests for production to which Defendant has objected, i.e., Request Nos. 1, 2, 3, 4 and 7. (Doc. # 42.) The full text of Plaintiff's discovery and Defendant's responses/objections is set forth in Exhibit 2 to Plaintiff's motion. (Doc. # 42 at 15-19.)
A. The "Meet and Confer" Requirements of Local Rule 26-7
Prior to addressing the requested discovery and Defendant's responses, the court will discuss Plaintiff's statement she satisfied the "meet and confer" obligations of Fed.R.Civ.P. 37(a)(1) and Local Rule 26-7. Plaintiff states her letter to Defendant's counsel was "Plaintiff's attempt to resolve the discovery matter without court action" and satisfied the obligation of a party to attempt to resolve a discovery dispute without court intervention. ( Id, at 20-22, 23-24.) The court disagrees.
Local Rule 26-7 states that no discovery motions will be considered unless the movant - "after personal consultation and sincere effort" was unsuccessful in resolving the discovery dispute (emphasis added). Writing a letter to opposing counsel with no attempt to meet personally (especially when both Plaintiff and Defendant's counsel are located in Reno) falls woefully short of the concept of "personal consultation."
This Rule tracks nearly verbatim former Local Rule 190-1(f)(2), which "prohibited the consideration of a motion to compel unless a statement was attached certifying that after personal consultation and sincere effort to do so, counsel have been unable to satisfactorily resolve the matter.'" Shuffle Master, Inc. v. Progressive Games, Inc., 170 F.R.D. 166, 171 (D. Nev. 1996). Shuffle Master held the movant failed to satisfy the meet and confer requirements of former Rule 37(a)(2)(B) of the Federal Rules of Civil Procedure, which required a party bringing a motion to compel discovery to "include with the motion a certification that the movant has in good faith conferred or attempted to confer with the nonresponsive party." See Shuffle Master, Inc., 170 F.R.D. at 170. In interpreting the meet and confer requirements of former Federal Rule of Civil Procedure 37(a)(2)(B), the court noted the close similarities with former Local Rule 190-1(f)(2). The court found former Rule 37(a)(2)(B)'s express terms "encompass[ed]... [the District of Nevada's] successful certification requirements, " due to the "successful experience of... [the District of Nevada] and other federal districts in resolving discovery disputes." Id. at 172. Because the court in Shuffle Master, Inc. essentially equated former Rule 37(a)(2)(B) with former Local Rule 190-1(f)(2), and because Local Rule 190-1(f)(2) contains the same language as current Rule 26-7(b), that court's analysis of former Rule 37(a)(2)(B) is directly applicable to the present case, which is governed by Local Rule 26-7(b) and now, of course, by Rule 37(a)(1). The court stated the Rule 37 certification requirement "should be interpreted from this historical perspective [concerning the District of Nevada's former Local Rule]." Id.
The movant's attempts in Shuffle Master to comply with Rule 37's meet and confer requirements involved transmission of demand letters by fax and one telephone call to inform the plaintiff that the plaintiff's discovery responses were incomplete. Id. The court concluded these efforts did not constitute compliance with Fed.R.Civ.P. 37. Id. The court explained "good faith cannot be shown merely through the perfunctory parroting of statutory language on the certificate to secure court intervention; rather it mandates a genuine attempt to resolve the discovery dispute through non-judicial means." Id. at 171. The court stated a satisfactory meet and confer must entail "a personal or telephonic consultation during which the parties engage in meaningful negotiations or otherwise provide legal support for their position." Id. at 172; emphasis added.
As noted above, Plaintiff simply wrote a letter to Defendant's counsel to which Defendant responded, also in writing. No follow-up attempt was undertaken to address any possible compromise in the parties' positions. Although characterized by Plaintiff as a "personal and sincere attempt to resolve" this discovery dispute (Doc. # 42 at 63; Exh. 6; emphasis added), there was no "personal" consultation or discussion with counsel other than writing a demand letter.
Consequently, the court finds Plaintiff has failed to confer or attempt to confer in good faith with Plaintiff's counsel in an effort to resolve a discovery dispute. As the court stated in Shuffle Master, Inc., "[Defendant]'s lack of good faith [or sincerity] is evident, not in the unreasonableness of its position, but rather by the inadequate means through which its counsel attempted to ...