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Jose Santiago v. Whole House Building Supply

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


June 22, 2011

JOSE SANTIAGO,
PLAINTIFF,
v.
WHOLE HOUSE BUILDING SUPPLY, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Paul S. Grewal United States Magistrate Judge

ORDER DENYING MOTION TO COMPEL FURTHER PRODUCTION ) OF DOCUMENTS

(Re: Docket No. 32)

On May 6, 2011, Plaintiff Jose Santiago ("Santiago") filed a motion to compel further production of documents and declarations in support of that motion to compel. No opposition was 18 filed, and no reply was filed. On June 21, 2011, Defendant Paul Gardner ("Gardner") appeared for 19 oral argument on the motion to compel, but Santiago did not appear. 20 21

In his declaration, Santiago‟s counsel, Adam Pederson ("Pederson"), states that he sent a letter via mail and email to Gardner regarding these issues and that "[his] office has also made 23 efforts to contact [Gardner] by telephone without success."*fn1 At the hearing, Gardner pointed out 24 that the letter appears to have been mailed to the wrong address.*fn2 Gardner admitted he had 25 26 received the email. Gardner, however, did not indicate that he received any telephone calls or 1 2 telephone messages.

Pursuant to Fed. R. Civ. P. 37(a), a motion to compel "must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make 5 disclosure or discovery in an effort to obtain it without court action." Civ. L.R. 1-5(n) states that, ""meet and confer‟ or "confer‟ means to communicate directly and discuss in good faith the 7 issue(s) required under the particular Rule or order. . . . The mere sending of a written, electronic, or voice-mail communication, however, does not satisfy a requirement to "meet 8 and confer‟ or to "confer.‟ Rather, this requirement can be satisfied only through direct dialogue and discussion-either in a face to face meeting or in a telephone conversation."

As Civ. L.R. 1-5(n) makes clear, Santiago‟s letter-even if it had been correctly addressed-do not satisfy his obligation to confer before filing this motion to compel. No face to face meeting or telephone conversation took place, and therefore the parties did not confer. Additionally, the letter 13 does not attempt to schedule a telephone call or a meeting, and, thus, does not constitute a good 14 faith effort to confer. Although counsel declares that his office made efforts to contact Gardner by 15 telephone, he does not state what efforts were made. The court was unable to request further 16 explanation from Santiago or his counsel because they did not appear in court to argue their 17 18 motion. Thus, Santiago has not submitted to the court a sufficient certification that he made a good faith attempt to confer with Gardner. Accordingly,

IT IS HEREBY ORDERED that the motion to compel is DENIED.


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