California Code of Civil Procedure §2016.040 requires that parties meet and confer in a
reasonable and good faith attempt at an informal resolution of each issue presented by the [discovery] motion.
What does that really mean? You know that your meet and confer efforts can’t be illusory; you need to make a legitimate good faith attempt to resolve the dispute. But what actually constitutes a good faith meet-and-confer effort depends on a variety of factors, including the complexity of the case, the history of the litigation, and the type and scope of discovery requested.
Not surprisingly, the more complex the issues, the more time and effort you’ll need to spend trying to resolve the dispute. The meet-and-confer effort should reflect the same level of persuasive effort as the discovery motion itself.
Here are some rules of thumb:
- The meet-and-confer discussions should have the same level of professionalism as papers filed with the court and argument occurring in the court’s presence.
- Even in a relatively uncomplicated case, merely exchanging a single letter or e-mail isn’t enough to satisfy the meet-and-confer requirement; at a minimum, meet or talk by telephone to try to work out the issues and then follow up with a letter setting out your follow-up efforts.
- The meet-and-confer efforts should occur with sufficient time before the deadline to bring the motion so that your deadline isn’t so short as to seem unreasonable.
- Avoid appearing to make ultimatums that aren’t good faith efforts to resolve the disputes.
Take your responsibility to meet and confer very seriously because there’s a big stick associated with it: the court must impose monetary sanctions on any party or attorney who fails to meet and confer in good faith, even if the party subject to the sanction prevails on the discovery motion. CCP §2023.020.
In addition, if the section governing a particular motion requires the filing of a declaration showing a reasonable and good faith attempt to resolve the issues informally, the failure to meet and confer constitutes a misuse of the discovery process, which subjects the offending party or attorney not only to monetary sanctions, but also to issue, evidence, contempt, or terminating sanctions. See CCP §§2023.010(i), 2023.030(a)-(e).
For everything you need to know about compelling discovery (including a sample order on a motion to compel) and obtaining discovery sanctions, turn to CEB’s comprehensive practice guide California Civil Discovery Practice, chap 15. But if your meet-and-confer efforts fail, check out this CEB On Demand program: Strategic Tips for Successfully Propounding & Opposing Motions to Compel and Other Discovery Motions.
Related CEB blog posts:
- To Depose or Not to Depose: The Advantages and Disadvantages of Taking an Oral Deposition
- Picking the E-Data Custodian’s Brain
- Shoot Back with 10 Discovery Objections
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