Enterprise Management Limited Inc v. Construx Software Builders Inc

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 ENTERPRISE MANAGEMENT LIMITED, INC., MARY LIPPITT, CASE NO. 2:19-CV-1458-DWC 11 Plaintiffs, ORDER DENYING MOTION TO 12 COMPEL v. 13 CONSTRUX SOFTWARE 14 BUILDERS, INC, STEVE C. MCCONNELL, 15 Defendants. 16

Presently before the Court is Defendants Construx Software Builders, Inc. and Steve C. 17 McConnell’s Motion to Compel. Dkt. 39. The Court has considered the relevant record and finds 18 the parties have not met and conferred regarding the discovery dispute. Therefore, the Motion to 19 Compel (Dkt. 39) is denied. 20 21 I. Background Defendants request the Court compel Plaintiffs Enterprise Management Limited, Inc. and 22 Mary Lippitt to produce responses to discovery requests related to damages. Dkt. 39. The record 23 reflects the parties discussed this discovery dispute by telephone on March 10, 2020. Dkt. 39-1, 24 1 Graham Dec., ¶ 8. Plaintiffs addressed several of the disputed issues following the telephone 2 conference and the parties exchanged additional email communications in April 2020. See id. at 3 ¶¶ 9-11. On May 29, 2020, the Court dismissed several claims in this case. Dkt. 37. 4 Approximately one month later, on June 26, 2020, Defendants’ counsel sent an email to

5 Plaintiffs’ counsel requesting supplements to Interrogatories 3 and 6 and Request for Production 6 19. Dkt. 39-1, Graham Dec., ¶ 11; Dkt. 39-1, p. 39. Defendants’ counsel did not receive a 7 response to the email and, on July 16, 2020, sent another email to Plaintiffs’ counsel requesting 8 Plaintiffs provide the supplemental responses or provide a time to meet and confer. Dkt. 39-1, 9 Graham Dec., ¶ 11; Dkt. 39-1, p. 39. Defendants filed the Motion to Compel on July 20, 2020. 10 Dkt. 49. 11 In response to Defendants’ counsel’s July 16, 2020 email, Plaintiffs’ counsel was 12 preparing a supplemental response to the discovery requests and initial disclosures. Dkt. 41, 13 Ormiston Dec., ¶ 11. On July 20, 2020, within hours of Defendants filing the Motion to Compel, 14 Plaintiffs’ counsel sent an email to Defendants’ counsel stating they would serve supplemental

15 discovery responses by the end of the week. Dkt. 42-2. On July 31, 2020, Plaintiffs’ counsel 16 provided updated responses to the discovery requests and requested Defendants withdraw the 17 Motion to Compel. Dkt. 41, p. 88. 18 II. Discussion 19 A party may obtain discovery regarding any nonprivileged information that is relevant to 20 any claim or defense in his or her case. Fed. R. Civ. P. 26(b)(1). Once the party seeking discovery 21 has established the request meets this relevancy requirement, “the party opposing discovery has the 22 burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining 23 or supporting its objections.” Bryant v. Ochoa, 2009 WL 1390794, at *1 (S.D. Cal. May 14, 2009).

24 1 When a party believes the responses to his discovery requests are incomplete, or contain 2 unfounded objections, he may move the court for an order compelling disclosure. Fed. R. Civ. P. 3 37. 4 Pursuant to Federal Rule of Civil Procedure 37(a)(1):

5 . . . The motion 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 6 or discovery in an effort to obtain it without court action.

7 See also LCR 37(a)(1). “A good faith effort to confer with a party or person not making a 8 disclosure or discovery requires a face-to-face meeting or a telephone conference.” LCR 9 37(a)(1). If the movant fails to include such a certification, the court may deny the motion 10 without addressing the merits of the dispute. Id. 11 Here, the Court finds Plaintiffs have provided responses to the disputed discovery 12 requests. Therefore, Defendants have received the relief requested in the Motion to Compel. In the 13 Reply, Defendants argue the discovery responses are inadequate. See Dkt. 42. However, there is no 14 evidence the parties have met and conferred regarding Plaintiffs’ responses to the discovery 15 requests following the March 10, 2020 telephone call or the filing of the Motion to Compel. 16 Therefore, Defendants’ Motion to Compel should be denied. See Jafari v. F.D.I.C., 2014 WL 17 7176460, at *4 (S.D. Cal. Dec. 5, 2014) (denying a motion to compel where the relief sought in the 18 motion – discovery responses – were provided after the motion was filed and finding disputes 19 raised for the first time in the reply were not properly before the Court, nor had the parties 20 conferred regarding the issues raised in the reply). 21 III. Caution to Counsel 22 The Court finds the Motion should be denied as Plaintiffs have responded to the 23 discovery requests; however, the Court cautions counsel as follows: 24 1 The Court is mindful that the lack of communication from Plaintiffs’ counsel would be a 2 frustration. The record shows Plaintiffs’ counsel failed to timely respond to emails from 3 Defendants’ counsel. For example, Defendants’ counsel did not receive a response to a June 26, 4 2020 email. See Dkt. 39-1, Graham Dec., ¶ 11. Further, Plaintiffs’ counsel did not respond to

5 Defendants’ counsel’s July 16 email until the afternoon of July 20, 2020, after the Motion to 6 Compel had been filed earlier that day. See Dkt. 42-2. The Court notes a pattern of ignoring 7 communications from opposing counsel is unacceptable. 8 The Court also reminds counsel of the Court’s expectations for compliance with the meet 9 and confer requirements. To satisfy the meet and confer requirements, counsel must in good faith 10 confer or attempt to confer by telephone or in person regarding the discovery dispute. Here, the 11 record shows Defendants’ counsel did not make a good faith effort to meet and confer with 12 Plaintiffs’ counsel. On the morning of July 16, 2020, Defendants’ counsel requested Plaintiffs’ 13 counsel provide a time to meet and confer if supplemental responses were not provided “right 14 away.” Dkt. 39-1, p. 39. Defendants’ counsel did not make further attempts to discuss the

15 discovery disputes with Plaintiff’s counsel. For example, Defendants’ counsel did not attempt to 16 call Plaintiffs’ counsel, nor did Defendants’ counsel put Plaintiffs’ counsel on notice that a 17 motion to compel would be filed two-business days after the July 16, 2020 email if no response 18 was immediately received. This does not meet this Court’s meet and confer requirements. 19 IV. Fees 20 Plaintiffs request costs and fees resulting from responding to the Motion to Compel. Dkt. 21 40. As the record reflects a lack of communication between counsel for both Plaintiffs and 22 Defendants, the Court denies any request for costs and fees associated with the Motion to 23 Compel.

24 1 V. Conclusion 2 For the above stated reasons, the Motion to Compel (Dkt. 39) is denied. The Court 3 declines to award costs and fees to either Plaintiffs or Defendants. The Court strongly 4 encourages the parties to attempt to resolve this matter without the Court’s further involvement.

5 Dated this 27th day of August, 2020. 6 A 7 David W. Christel United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24