/>iIn Wilbert v. Pyramid Healthcare, Inc., d/b/a Silvermist Recovery Center, et al., the plaintiff filed suit alleging pregnancy-based discrimination and harassment, culminating in her termination. According to the court, the parties never agreed on how to handle the discovery of electronically stored information (ESI) in connection with the litigation. For purposes of this blog post, the parties were before the court on a motion to compel filed by the plaintiff.
In this decision, the district judge provided an in-depth discussion of parties’ meet-and-confer obligations prior to filing a motion.
First, the court cited Rule 26’s requirements of relevance and proportionality: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”[1] The court then referred to Federal Rule of Evidence 401 on relevance, explaining that information is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” The court also noted that Rule 37 provides the procedural mechanism for adjudicating discovery disputes and returned to Rule 26’s limitations on accessibility and duplicative discovery before addressing the requirement that parties meet and confer in planning for discovery.
As part of this planning discussion, the court emphasized the topics the parties “must discuss,” which include:
- preserving discoverable information;
- developing a joint proposed discovery plan, where counsel must engage in good faith to agree on the plan; and
- submitting to the court a written report outlining the plan.
The discovery plan, according to the court, must state the parties’ views and proposals on several topics listed in Rule 26(f), including issues related to the disclosure, discovery, or preservation of ESI, as well as the forms in which ESI should be produced. The court highlighted that the Federal Rules empower it to order parties to meet and confer in person and permit it to require a party or its attorney to pay the other party’s reasonable expenses if they fail to participate in the process in good faith.
Case Analysis
After detailing the applicable rules, the court analyzed whether the plaintiff complied with those rules. As a preliminary matter the court noted that “[f]rom the inception of this action, Counsel for the parties could not agree on the scope and methodology of ESI discovery.” While counsel participated in a Rule 26(f) conference, plaintiff’s counsel proposed a 30-page “mandatory” discovery plan that imposed extensive ESI protocol requirements far exceeding the district court’s checklist for meet-and-confer sessions. The court observed that plaintiff’s counsel framed elements of the proposed ESI plan in an argumentative and non-negotiable manner, suggesting an unwillingness to cooperate during the required conferral process.
These issues—including the overbreadth of the requests, the scope of custodians, and search report requirements—were discussed during a case management conference. The court issued an order requiring counsel to confer meaningfully on the issues. However, the parties failed to resolve the issues and, months later, submitted a joint letter to the court. Subsequently, the court granted plaintiff’s counsel leave to file the motion to compel (“Motion”) but required counsel to include a certification of conferral and specify the factual basis for each claim and discovery issue, supported by affidavits or declarations.
Although plaintiff’s counsel filed the motion, he failed to comply with the court’s order by omitting the required factual support and specificity for each discovery issue.
Court Findings
As a preliminary matter, the Court noted the plaintiff’s Motion failed to satisfy its order in “certain material respects.” Notably absent from the Motion were affidavits or unsworn declarations substantiating each factual assertion. The court further determined that the Motion failed on the merits for several reasons.
- Overbreadth of Requests and Custodians: The court found the plaintiff’s requests overly broad and criticized plaintiff’s counsel for failing to explain the relevance of the proposed custodians. Defense counsel had attempted to confer, but plaintiff’s counsel either ignored their overtures or imposed “egregious barriers to doing so.” As such, the Motion failed to meet the burden of demonstrating relevance and was denied.
- Hit Reports: Plaintiff’s counsel insisted defendants generate “hit reports” on all search terms before determining their relevance. The court rejected this approach, calling it “backwards and inappropriate” in a straightforward, non-document-intensive employment discrimination case. The court noted that counsel had chosen to ignore its observations and persisted in demanding that defendants expend significant time, effort, and resources to search the computers and phones of a wide swath of custodians (whether relevant or not) for an extensive list of search terms (whether relevant or not) overly an overly broad time period (whether relevant or not). Counsel relied on the apparent authority of his own ESI Plan, which emphatically but erroneously stated: “Without a hit report, generated by software, there is no accepted methodology to certify that a competent search was done. Furthermore, there is no possibility to reasonably meet and confer on any objections that defense counsel may have, i.e., if defense counsel objects that a search term would generate overly broad results, then we must refer to a hit report.”
The court further found that the proposed temporal search period and search terms had not been established as relevant and offered no credible explanation for why emails and texts sent or received prior to plaintiff’s pregnancy should be included in the search or ESI. In essence, the court determined that counsel had failed to identify an appropriate time period and scope of discovery that aligned with the allegations in the complaint. Plaintiff’s counsel had also defied the court’s order regarding the scope of the matter. As a result, the court found that the unsupported Motion did not satisfy that burden under Rule 37[2] and, in denying the motion, stated:
“The Court is also of the view that [counsel’s] self-proclaimed “mandatory” approach to ESI discovery in employment cases not only contravenes several provisions of the Federal Rules of Civil Procedure and this District’s Local Rules, but [his] unilateral imposition of such ESI protocols in all such cases also defies the requirement that even relevant discovery must be:… proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the party’s resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”
The court emphasized that, in this case, plaintiff’s counsel has ignored his duty to refrain from discovery efforts that were unreasonable, unduly burdensome, or expensive in light of the proportionality factors.
The court also took issue with plaintiff’s counsel’s (Attorney Ward’s) behavior, noting:
The conferral obligation is not a bargaining chip to be offered in exchange for a concession on a disputed discovery process or requested item. Conferral is expected for all discovery planning and dispute resolution and is a precondition to seeking court intervention. A party may also not impose unreasonable conditions or barriers on their willingness to meet and confer. Here, Defense Counsel contends that Attorney Ward insisted that he would only meet in person to confer if Defense Counsel acquiesced to his demand that such meeting be recorded. Such obdurate behavior in this case lacks justification, defies the bounds of expected professional behavior, and was seemingly deployed to harass Defense Counsel and thwart any meaningful and constructive attempts at resolving the parties’ disputes.”
As a result of Ward’s behavior, defense counsel refused to meet in person under the proposed conditions and continued conferral efforts in writing. Despite this, Attorney Ward affixed a certificate of meet and confer to his motion, as required by Rule 37(a).[3] The court found that Attorney Ward did not satisfy his obligation to confer in good faith and ordered him to show cause why he and his law firm should not be sanctioned for (1) failing to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f) and all related court rules, and (2) misrepresenting to the court that he had satisfied his conferral obligations in good faith before filing the motion to compel as required by Rule 37.
Conclusion This decision by Judge Hardy serves as a strong reminder of the standard of cooperation and good faith expected of every party and counsel to facilitate discovery. Parties have an obligation to participate in the meet-and-confer process and to be cooperative and collaborative during the process. Adversaries—and courts alike—have little patience for delay tactics, failures to disclose timely information relevant to discovery, and misstatements of fact.
[1] For determining proportionality, courts consider “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. “The parties and the court have the collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Fed. R. Civ. P. 26(b)(1).
[2] Rule 37 governs motions to compel discovery. According to the court, the moving party bears the initial burden to prove that the requested discovery falls within the scope of discovery as defined by Rule 26(b)(1). If the moving party meets this initial burden, the burden then shifts to the opposing party to demonstrate that the requested discovery (i) does not fall within the scope of discovery contemplated by Rule 26(b)(1), or (ii) is not sufficiently relevant to justify the burden of producing the information.
[3] In addition to citing a number of local rules relevant to discovery issues, District Judge Hardy pointed to the presiding judicial officer’s published practices and procedures for the proposition that no discovery motions are to be filed until after the parties jointly contact chambers to request an informal conference, except in the cases of emergency, as certified by counsel. Counsel is also required, under the presiding judicial officer’s practices and procedures, to file a certification “that the movant has discussed the matter with all other parties and to expressly indicate whether the opposing party consents to or opposes the motion and whether such party intends to file a response.”
