“The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue.” Townsend v. Superior Court, 61 Cal. App. 4th 1431, 1435 (1998) (internal quotation marks omitted); see Cal. Civ. Proc. Code § 2016.040 (“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”); Cal. Civ. Proc. Code § 2033.290(b) (requiring a meet and confer declaration in support of motion for further requests for admission).
“This rule is designed to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order . . . lessen[ing] the burden on the court and reduc[ing] the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” Stewart v. Colonial W. Agency, Inc., 87 Cal. App. 4th 1006, 1016 (2001).
M&C Strategy No. 1: Look Squeaky Clean
Meet and confer is often the most hotly contested area of the discovery motion. Craft meet and confer communications so that they can be later reassembled into a story starring you as the polite problem-solver and the opposing party in the role of hostile problem child. This is not so easy. The opposition will do everything she can to draw you into a mud fight, leaving everyone filthy.
Look at it from the judge’s perspective. What will the judge think when she reads these meet-and-confer communications? In order to distinguish yourself from the opposition you have to emerge not simply as representing the superior argument (having the better argument is not enough) but also looking squeaky clean. Rule Number One in meet and confer is: look squeaky clean.
M&C Strategy No. 2: Give the Judge an Easy Way Out
Judges hate complication. They want to make a decision and sign the order. They want an easy way out of the meet-and confer morass. Give it to them. The meet and confer issues are usually discrete and narrow:
1. Did the movant meet the minimal obligations? Meet and confer obligations are fairly light. Some case law suggests that a single meet and confer letter may be enough when the other side fails to respond. Your goal, as movant, it simply to meet the minimum requirements so you can walk through the threshold and make your motion. Your meet and confer letter/e-mail should not be more than a few pages long and only a few paragraphs, if at all possible. Creating a long complex meet-and-confer record simply allows the opposition to use your words against you. Shorter is better. Less is more.
2. Did the opposition respond? Believe it or not, the opposition has an obligation to respond, to offer concessions, or explain in simple language why concessions are unreasonable. Again, the Master Strategist understands that no goal is served by arguing with the movant in meet and confer. The likelihood that you will be able to convince the would-be movant of her error is near zero. Long argumentative e-mails simply create an opportunity for the movant to use your words against you. Yes, it's a civil action, but never forget Miranda.
3. Could either side have avoided the motion? After deciding the motion, the judge will examine whether to sanction the losing side. When evaluating sanctions, most judges will revisit the meet and confer record asking themselves whether the motion could have been avoided in the first place. A Master Strategist will look at the meet and confer dialogue through this lens; she will offer concessions to the would-be-moving party, when the concessions are of low value, and the opposition’s refusal of those concessions will appear unreasonable and petty. Judges will often award sanctions at the termination of a discovery motion as a consequence of the losing party refusing a reasonable concession made by the winning party during the pre-motion meet and confer that could have mooted the motion.
M&C Strategy No. 3: What Not to Do
The meet and confer obligation “requires that there be a serious effort at negotiation and informal resolution.” Clement v. Alegre, 177 Cal. App. 4th 1277, 1294 (2009). Moreover, “a reasonable and good faith attempt at informal resolution entails something more than bickering with opposing counsel. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” Ellis v. Toshiba Am. Info. Sys., Inc., 218 Cal. App. 4th 853, 880 (2013) (internal quotation marks, alterations, and ellipsis omitted); see Townsend v. Superior Court, 61 Cal. App. 4th 1431, 1439 (1998).
1. Do not try to convince the opposition that you are right and they are wrong. In its Platonic form, the meet and confer process is supposed to bring reasonable minds together in order to obviate motion practice in the first place. But it almost never works like that. Each lawyer is a zealous advocate. Neither side trusts the other. And rarely will either side be convinced by its opposition’s arguments. Arguing with the other side will simply create a record painting you as the angry advocate. Decline to be so portrayed.
2. Do not use emotional language. Judges understand that the bad actor in a meet and confer dialogue is often the one arguing, shaming, blaming, punishing, and name-calling. Don’t do it. It will not convince the opposition they are wrong; it will not convince the Judge you are right; and it will not serve your strategic goals. A true Master Strategist is always focused like a laser on her strategic goals regardless of how good it might otherwise feel to write a truculent e-mail.
3. Do not seek to use meet and confer conferences as an opportunity to convey toughness. Consider this: if you lose a discovery motion and your client is ordered to pay sanctions due to your obstreperous meet and confer e-mails, this will not telegraph “toughness” to the other side. It will not make them want to settle with you. It will telegraph that you lack emotional control and tend to sabotage yourself at inopportune times. Instead, develop a strategy to win the motion. And you win by producing to the Judge a meet and confer record wherein you acted courteously while the opposition did not.
A successful discovery motion starts even before it is filed. It starts with the meet and confer.
Sometimes you have to compel the opposition's response to discovery. But before you can move to compel, you are required to "meet and confer." If you do the "meet and confer" wrong, your discovery motion will be doomed.
A common area of abuse occurs when attorneys instruct their clients to not answer a deposition question. Instructions to refuse to answer should occur only in response to questions implicating a privilege. All other instructions to not answer questions for relevance, for hearsay, or even for “harassment,” are improper.
The firm is pleased to report that in a hard fought matter spanning eight years, after a trial, and after four years on appeal, the California Court of Appeal ruled in favor of Tong Robbins’ clients, holding, in plain language, “We agree with plaintiffs.”
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