Opinion
Case No. A4-02-09
January 31, 2003
ORDER DENYING DEFENDANTS MOTIONS FOR SANCTIONS
I. BACKGROUND
On January 14, 2003, the defendant, Canadian Pacific Railway, Ltd., filed the following:
1) Notice of Motion and Motion to Compel Susan Olsen to Resubmit to a Deposition with supporting Memorandum
2) Notice of Motion and Motion for Order to Show Cause for Rollie A. Port's Failure to Answer Deposition Questions with supporting Memorandum
3) Notice of Motion and Motion for Sanctions Against Counsel for Susan Olsen for Abuse of Discovery Practices During Deposition with supporting Memorandum
These discovery motions arose out of depositions taken in Minot, North Dakota, on December 9, 2002. The gist of the motions concern the defendants' contention that counsel for the Plaintiffs engaged in abusive discovery practices during the depositions of Susan Olsen and Rollie Port and that sanctions are warranted.
For the reasons set forth below, the Court denies all of the motions with prejudice.
II. LEGAL DISCUSSION
The litany of discovery motions for sanctions filed on January 14, 2003, arose out of depositions taken in Minot, North Dakota, on December 9-10, 2002. The scheduling of the depositions was the subject of a previous discovery dispute that resulted in the filing of a motion for a protective order and a request for court intervention. See Protective Order dated December 6, 2002. In that order, the Court strongly urged the parties to resolve all future discovery disputes in a civil and professional manner or risk the imposition of appropriate sanctions.
The most recent flurry of discovery motions filed by counsel for defendant Canadian Pacific Railway are devoid of any certifications that a good faith effort was undertaken to confer with opposing counsel to try to resolve these disputes without court intervention. Rule 37(a)(2) of the Federal Rules of Civil Procedure requires that before a party files a motion to compel or a motion for appropriate sanctions, the party must first make a good faith effort to confer with the person or party failing to make the discovery disclosures, i.e., the non-responding party. Rule 37(a)(2) requires such efforts as a condition precedent to seeking court action. This prerequisite is not an empty formality.
In addition, Local Rule 16.1(B)(4) of the Local Rules of Court for the District of North Dakota provide as follows:
To curtail undue delay in the administration of justice, the court may refuse to hear any motion to compel discovery or for protective order unless the moving party first advises the court, in writing, of sincere attempts by counsel to actually confer, whether in-person or by telephonic or other electronic means, to resolve differences without involving the court. This statement must also recite the date, time, and place of such conference, and the names of all participating parties. The requirement to confer is subject to waiver by the court only in exceptional circumstances upon an appropriate showing of the conference's futility.
Again, this prerequisite is not an empty formality. The purpose of these rules is to obligate attorneys to certify to the Court that they have conferred with each other in good faith and have made a reasonable and sincere attempt to try to resolve any differences and secure the information or material requested without Court intervention. Both Rule 37(a)(2) and Local Rule 16.1(B)(4) are designed as a means to informally resolve discovery disputes. In the overwhelming majority of civil cases, such disputes are resolved if reasonable persons undertake a sincere and good faith effort to do so. A failure to confer, or attempt to even minimally comply with the requirements and certifications mandated by Rule 37(a)(2) and Local Rule 16.1(B)(4), often results in the filing of unnecessary motions and the needless expenditure of Court resources. Unfortunately, that has occurred in this case. The total failure to comply with the minimum requirements of Rule 37(a)(2) or Local Rule 16.1(B)(4) warrants that all of the pending motions be denied with prejudice.
The Court has reviewed all of the pleadings, exhibits, and deposition transcripts. Suffice it to say that the deposition transcripts clearly reveal that both counsel for Canadian Pacific Railway and counsel for the plaintiffs who took part in the depositions on December 9, 2002, engaged in needless and unwarranted bickering, squabbling, bullying, coaching of witnesses, inappropriate objections [see Rule 30(d)], improper instructions to witnesses to refuse to answer questions, and disturbing, non-professional colloquy between counsel. The lack of civility and respect will hopefully end.
Finally, in an effort to curtail a barrage of future discovery disputes, motions to compel, and motions for sanctions, the Court orders that the following steps be undertaken by all parties prior to the filing of any future discovery motions:
1) The parties are strongly encouraged to informally resolve all discovery issues and disputes without the necessity of Court intervention. In that regard, the parties are first required to confer and fully comply with Rule 37(a)(2) of the Federal Rules of Civil Procedure and Local Rule 16.1(B)(4) by undertaking a sincere, good faith effort to try to resolve all differences without Court action or intervention;
2) In the event that reasonable, good faith efforts have been made by all parties to confer and attempt to resolve any differences, without success, the parties are then required to schedule a telephonic conference with the Magistrate Judge in an effort to try to resolve the discovery dispute prior to the filing of any motions. The parties shall exhaust the first two steps of the process before any motions, briefs, memorandums of law, exhibits, deposition transcripts, or any other discovery materials are filed with the Court.
3) If the dispute still cannot be resolved following a telephonic conference with the Magistrate Judge, then the Court (Magistrate Judge) will entertain a motion to compel discovery, motion for sanctions, motion for protective order, or other discovery motions. In connection with the filing of any such motions, the moving party shall first fully comply with all requirements of Rule 37(a)(2) and Local Rule 16.1(B)(4) and shall submit the appropriate certifications to the Court as required by those rules.
4) The Court will refuse to hear any discovery motion unless the parties have made a sincere, good fath effort to resolve the dispute and all of the above-identified steps have been strictly complied with. A failure to fully comply with all of the prerequisite steps shall result in a denial of any motion with prejudice and an award of costs and reasonable attorney's fees.
For the reasons set forth above, the pending discovery motions are DENIED with prejudice and without costs as a result of the failure to comply with the minimum requirements of Rule 37(a)(2) and Local Rule 16.1(B)(4).