Court Holds FRCP Imposes No Duty to Meet and Confer Before Filing Motion for Discovery Sanctions
In True Health Chiropractic Inc. v. McKesson Corporation, et al., Case No. 13-cv-02219-HSG (DMR) (N.D. Cal. April 1, 2015), the Northern District of California court considered whether Plaintiffs needed to meet and confer with Defendants before filing a motion for sanctions regarding Defendants’ discovery failures.
In this putative class action case, Plaintiffs alleged Defendants violated the Telephone Consumer Act of 1991 by sending unsolicited facsimile advertisements (i.e., “junk faxes”). Plaintiffs’ discovery requests sought exemplars of each fax, transmission records, and information regarding Defendants’ claim that they received “invitations or permissions” from Plaintiffs to send the faxes. After disagreements on the scope of the production, Plaintiffs filed a motion to compel. The court ordered Defendants to produce the requested discovery. (As a footnote to the order, the court noted that Plaintiffs had offered to have their own e-discovery expert work with Defendants to search for and produce the requested discovery; Defendants ignored and/or denied the offer.)
After the court-imposed deadline, Defendants produced only four exemplar faxes and the transmission records of those faxes (and did not produce any of the alleged “invitations or permissions”). Plaintiffs informed Defendant’s counsel (whom Defendant had retained as new counsel shortly before the document dispute arose) that they intended to file a motion for sanctions due to the inadequate production.
At the hearing, Defendants argued that the court should dismiss the motion because Plaintiffs had failed to properly meet and confer with new counsel before filing the motion. The court disagreed, noting that FRCP 37-1-(a) imposes an obligation to meet and confer only before filing a motion regarding a discovery dispute, but does not create any such obligation regarding a motion for sanctions due to a discovery failure.
The court concluded that Defendants’ scant production had violated the court’s order. Pursuant to FRCP 37(b)(2)(C), the court ordered Defendants to pay Plaintiffs’ attorneys’ fees and costs and ordered Defendants to fully comply with the court’s discovery order. The court warned that failure to do so would result in additional fines and sanctions.