You Get What You Give—The Benefit of Making a Sincere Effort to Meet and Confer
Sierra J. Spitzer, Esq.
Schwartz Semerdjian Ballard & Cauley LLP
As litigators, we are all well versed in the discovery dance. Requests are propounded, answers peppered with objections are given and the meet and confer process begins. While it is generally the mutual goal of the parties to avoid court involvement as well as the tedious and time-consuming process of a motion to compel, resolving a discovery dispute without court intervention takes genuine concerted effort on the part of both counsel.
The approach to the meet and confer process seems to vary greatly from attorney to attorney, often depending on how seasoned the attorney is, from the lengthy accusatory and threatening ten page demand, to the letter full of boilerplate provisions about responding to discovery in “good faith”, to the reasoned requests for supplementation. Whether by letter, email, telephone or in person, the tone of the interaction and the sincerity of the effort and willingness on the part of counsel to resolve a discovery issue is ultimately determinative of whether the dispute will be resolved informally. Further the ability of the counsel to separate emotions and ego from the process and to keep perspective on the fact that, when it comes down to it, discovery is simply an exchange of information, is important to the process. Thus, in this often rut task, perhaps it is time to reconsider our approach to discovery and examine what in fact constitutes a “sincere” effort to meet and confer?
“The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain ‘an informal resolution of each issue.’. . .[t]his rule is designed to ‘encourage the parties to work out their differences informally so as to avoid the necessity for a formal order.’” Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435 (internal citations omitted) (“Townsend”). In determining whether an adequate effort at informal resolution of a discovery dispute has been made prior to filing a motion to compel, judges have broad discretion. Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431. The level of effort of informal resolution depends on the circumstances and a court may consider many factors, including: “[t]he history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, [and] the prospects for success.” Id.
The reasoning behind this meet and confer requirement is clear: if the parties are able to engage in meaningful negotiations, that will “lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” Townsend, 61 Cal.App.4th at 1435; accord, Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293. Courts have offered certain guidelines for the conduct of informal meet and confer negotiations, including that:
[t]he parties must present to each other the merits of their respective positions with the same candor, specificity, and support during informal negotiations as during the briefing of discovery motions. Only after all the cards have been laid on the table, and a party has meaningfully assessed the relative strengths and weaknesses of its position in light of all available information, can there be a “sincere effort” to resolve the matter.
Townsend, at 1435, citing Nevada Power Co. v. Monsanto Co. (D. Nev. 1993) 151 F.R.D. 118, 120. “These sensible guidelines apply, with equal force, [to] California’s Discovery Act.” Townsend, at 1435, citing Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 371. In other words, the guidelines call for counsel to use common sense and to be both reasonable and specific in dealing with discovery issues. The meet and confer process should not be used as a means of creating unnecessary work for the other side, wasting time and money arguing over technicalities ultimately bearing little or no importance to the case, nor should it be a game of cat and mouse. A straightforward, logical and reasoned two-way communication works wonders.
In addition to lessening the burden on the court, engaging in sincere efforts to informally resolve discovery issues also garners better relationships between opposing counsel in the case overall. Argument is not the same as informal negotiation (Townsend, 61 Cal.App.4th at 1437); that attempting informal resolution means more than the mere attempt by the discovery proponent to persuade the objector of the error of his ways (Id. at 1435); and that 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. (Id. at 1439); Clement, 177 Cal.App.4th at 1294.
As discovery is generally one of the first things that the parties engage in on a new case, the interaction of counsel regarding discovery can set the tone for the rest of the litigation. Thus, establishing a good rapport and open communication early on is very important.
Moreover, failing to make a sincere effort to meet and confer can spell trouble for attorneys with more than just with their opposing counsel. The already overburdened courts and trial judges are generally less than enthused to address discovery disputes that could and should be resolved by counsel. Furthermore, sometimes the failure to adequately meet and confer can result in sanctions (and probably a tongue lashing) by the court. An evaluation of whether, from the perspective of a reasonable person in the position of the discovering party, additional effort appeared likely to bear fruit, should also be considered. Although some effort is required in all instances (Townsend, supra, 61 Cal.App.4th at 1438 [no exception based on speculation that prospects for informal resolution may be bleak] ), the level of effort that is reasonable is different in different circumstances, and may vary with the prospects for success. These are considerations entrusted to the trial court's discretion and judgment, with due regard for all relevant circumstances. (Obregon, 67 Cal.App.4th at 432.) Clement, 177 Cal.App.4th at1293-94.
By way of example, in the recent matter of Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, the court awarded sanctions in the amount of $165,000 against an attorney for failure to meet and confer with the opposing party regarding court-ordered inspections. Prior to awarding sanctions, the trial court had repeatedly directed the parties to cooperate in creating an acceptable protocol for the inspection of plaintiff’s attorney Lori Sklar’s electronic records (supporting her fee request). The court found that, “the record in this case is one of obfuscation and delay by [Sklar].” The record as we have described it above shows that Sklar did not cooperate in creating a protocol, and “strongly indicates that the purpose [of Sklar's behavior] was ... to generally obstruct the self-executing process of discovery.” (Clement, 177 Cal.App.4th at 1292.) That she disputed details of the protocol (while failing to negotiate with Toshiba) does not provide substantial justification for her open defiance of a court order requiring inspection. Sklar appealed the sanctions award, but they were ultimately upheld by the district court, who found that the trial court had acted within its considerable discretion in imposing sanctions based on Sklar's “[m]isuse[ ] of the discovery process.” (§ 2023.010, subd. (a).)
As the old adage goes, “you get what you give.” The takeaway being: making a sincere effort to cooperatively, effectively and efficiently work through the discovery process with opposing counsel goes a long way.