In a concise order denying plaintiff’s “Motion to Enter ESI Order and Set the Deadline,” a district court enumerates a number of important procedural failures. There are but a few bare facts delineated in the interlocutory order in Smyth v. Merchants Credit Corporation, Case No. C11-1879RSI (W.D. Wash. September 10, 2013), but there are lessons to take away:
1. The plaintiff filed a “Motion to Enter ESI Order and Set the Deadline,” but the court noted that the motion should have properly been a Motion to Compel, and considered it as such.
2. The court had previously ordered the parties to have a meet and confer regarding the ESI “dispute” in accordance with Fed. R. Civ. Pro. 37(a)(1). The parties did have a meeting, but “there was no suggestion that the parties reached an impasse on any particular discovery request before Plaintiff filed this motion.” In contrast, the parties agreed that the defense production would be supplemented, and defendant contended it was about to live up to its end of the bargain when this motion was filed.
3. Based on the parties’ contentions, the meet and confer was not performed in accordance with the rules. After a meet and confer, only if an actual impasse is reached should motions regarding discovery be brought before the court. There was no alleged discovery dispute here and therefore, if there was a problem, another meeting should have been held before the court determined any final positions.
4. Plaintiff not only failed to explain or allege a discovery impasse, but apparently, discovery was already closed, and plaintiff failed to move the court to continue the discovery deadline or to compel the specific electronic discovery.
The court therefore denied entering an order regarding the plaintiff ESI motion, and readers of the opinion are left wondering whether the defendant did, in fact, supplement the promised discovery nonetheless. (If defendant failed to do so, at that point would it likely be appropriate for the plaintiff to bring the dispute before the court.)