Defendant PAE Government Services, Inc. moves for an order compelling plaintiff to respond to defendant's First Set of Special Interrogatories, without objection. Dckt. No. 52. Defendant also seeks sanctions in the amount of $2,299.50 against plaintiff for failing to respond to written discovery without any substantial justification. Id. The motion is noticed for hearing on August 31, 2011, pursuant to Eastern District of Local Rule 251(e), which provides that a discovery motion may be filed on fourteen days' notice "when there has been a complete and total failure to respond to a discovery request or order." E.D. Cal. L.R. 251(e). Defendant contends that "[p]laintiff completely failed to respond to any of Defendant's duly served written discovery." Dckt. No. 52 at 2. Based on defendant's motion, it appears that defendant's only attempt to meet and confer with plaintiff was through a letter defendant sent to plaintiff on August 11, 2011, which defendant contends plaintiff did not respond to. Dckt. No. 52-2, ¶¶ 4-5.
Defendant contends this amounted to a "good faith attempt to meet and confer with Plaintiff regarding his failure to respond to Defendant's written discovery prior to filing [the] motion [to compel, but that] Plaintiff never responded . . . ." Id. ¶ 7.
On August 22, 2011, plaintiff filed a document in which plaintiff contends he "did in good faith make a timely reply to the defendant's discovery packet about ten days after it was received by me." Dckt. No. 55. Plaintiff further contends that defendant's "counsel made no attempt to contact [him] for any discussion," and that when plaintiff made a phone call to defendant's counsel's office, counsel's response was that he would not help plaintiff. Id. at 2. Plaintiff contends that he interpreted that to mean that defendant's counsel "wanted no dialogue." Id.
Although plaintiff appears to be mistaken about his obligations to
respond to discovery under the Federal Rules of Civil Procedure and
therefore has not satisfied many of those obligations,*fn1
it also does not appear that plaintiff has completely failed
to respond to discovery or that the parties have adequately met and
conferred regarding the discovery issue at hand. Local Rule 251(b)
provides that a discovery motion will not be heard unless "the parties
have conferred and attempted to resolve their differences." E.D. Cal.
L.R. 251(b). The Rule further provides that "[c]counsel for all
interested parties shall confer in advance of the filing of the motion
or in advance of the hearing of the motion in a good faith effort to
resolve the differences that are the subject of the motion. Counsel
for the moving party or prospective moving party
shall be responsible for arranging the conference, which shall be held
at a time and place and in a manner mutually convenient to counsel."
Id. Additionally, Federal Rule of Civil Procedure 37(a)(1) provides
that a motion to compel discovery "must include a certification that
the movant has in good faith conferred or attempted to confer with the
person or party failing to make disclosure or discovery in an effort
to obtain it without court action." Rule 37(d)(1)(B) further provides
that "[a] motion for sanctions for failing to answer or respond must
include a certification that the movant has in good faith conferred or
attempted to confer with the party failing to act in an effort to
obtain the answer or response without court action."
Here, although defendant sent plaintiff a letter on August 11, 2011, which defendant contends plaintiff ignored, the letter was senta mere five days before the motion to compel was filed. Additionally, even though plaintiff has expressed concerns in the past about not timely receiving things sent to plaintiff via mail in the past and has demonstrated confusion about his discovery obligations, no attempt was made by defense counsel to meet and confer with plaintiff either in person or telephonically, which would have been consistent with "an effort to obtain [the discovery responses] without court action." The court believes that much of the dispute between the parties might have been resolved prior to the filing of the present motion to compel had the parties had a meaningful discussion either in person or telephonically regarding the discovery requests at issue.
Accordingly, defendant's motion to compel plaintiff to respond to defendant's special interrogatories is denied without prejudice, and the August 31, 2011 hearing on that motion is vacated. The parties are directed to meet and confer either telephonically or in person in an effort to resolve this dispute without court intervention. If such meet and confer efforts do not resolve the discovery dispute, defendant may re-notice the motion to compel for hearing.
Additionally, in plaintiff's August 22, 2011 filing, he contends that he will not attend a deposition that defendant noticed for August 26, 2011 because the deposition was noticed to take place in San Francisco. Dckt. No. 55 at 2. To the extent plaintiff's filing is construed as an ex parte application to have a motion for a protective order to change the place of plaintiff's deposition heard on shortened time, that application is denied without prejudice because plaintiff has not made, at this time, the requisite showing for such an ex parte application under Local Rule 144(e) or for a protective order under Federal Rule of Civil Procedure 26(c)(1).*fn2 E.D. Cal.
L.R. 144(e) ("Applications to shorten time shall set forth by affidavit of counsel the circumstances claimed to justify the issuance of an order shortening time [and] will not be granted except upon affidavit of counsel showing a satisfactory explanation for the need for the issuance of such an order and for the failure of counsel to obtain a stipulation for the issuance of such an order from other counsel or parties in the action."); Fed. R. Civ. P. 26(c)(1) ("for good cause, [the court may] issue an order to protect a party or person from . . . undue burden or expense, . . . specifying terms, including time and place, for the disclosure or discovery."); see also James Brooks Co. v. Certain Underwriters at Lloyd's London, 2006 WL 2168195, at *3 (E.D. Cal. July 31, 2006) ("The Court has considerable discretion in determining the place of a deposition, may consider the relative expenses of the parties and may order that expenses be paid by the opposing party.").
Further, plaintiff's August 22, 2011 filing also appears to seek reconsideration of an August 5, 2011 order granting defendant discovery sanctions, as well as a request for reconsideration of an August 22, 2011 order granting defendant's ex parte application to modify the scheduling order in this case. Dckt. No. 55 at 2-3; see also Dckt. Nos. 47 and 54. For the reasons stated by the court in the original order granting defendant discovery sanctions, as well as for the additional reasons stated at the hearing on plaintiff's earlier motion for reconsideration of the sanctions order and in the order denying that motion for reconsideration, Dckt. Nos. 33 and 47, plaintiff's present motion for reconsideration of the discovery sanctions order is denied.
Also, because plaintiff has not shown that there are any grounds for reconsidering the order granting defendant's ex parte application to modify the scheduling order in this case, Dckt. No. 47, plaintiff's request for reconsideration of that order is also denied.
In summary, IT IS HEREBY ORDERED that: 1. Defendant's motion to compel plaintiff to respond to defendant's special interrogatories, Dckt. No. 52, is denied without prejudice, and the August 31, 2011 hearing on that motion is vacated.
2. The parties are directed to meet and confer either telephonically or in person in an effort to resolve the discovery dispute without court intervention.
3. To the extent plaintiff's August 22, 2011 filing is construed as an ex parte application to have a motion for a protective order heard on shortened time, that application is denied without prejudice.
4. To the extent plaintiff's August 22, 2011 is construed as a motion for reconsideration of the August 5, 2011 order granting defendant discovery sanctions, ...