Myers v. Colgate-Palmolive Co.

173 F.R.D. 296, 1997 U.S. Dist. LEXIS 10812, 1997 WL 259252
CourtDistrict Court, D. Kansas
DecidedApril 24, 1997
DocketNo. 96-4095-SAC
StatusPublished
Cited by3 cases

This text of 173 F.R.D. 296 (Myers v. Colgate-Palmolive Co.) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Myers v. Colgate-Palmolive Co., 173 F.R.D. 296, 1997 U.S. Dist. LEXIS 10812, 1997 WL 259252 (D. Kan. 1997).

Opinion

MEMORANDUM AND ORDER

NEWMAN, United States Magistrate Judge.

This matter is before the court on a series of motions related to the same discovery dispute, including:

1. Plaintiffs Motion to Compel (doc. 37);

2. Defendant’s Motion to Strike Plaintiffs Motion to Compel Written Discovery (doc. 41);

3. Plaintiffs Motion to Substitute Plaintiffs Motion to Compel Filed March 31, 1997 (doc. 43); and

4. Plaintiffs Motion for Extension of Time to File Motion to Compel or in the Alternative, Motion to Compel.

On March 31, 1997, plaintiff filed and served a motion to compel discovery requesting that the court enter an order compelling defendant to answer plaintiffs interrogatories and requests for production of documents. A supporting memorandum was filed, along with a certificate of compliance evidencing that the parties had conferred or attempted to confer in an effort to resolve the discovery dispute as required by Fed.R.Civ.P. 37. On April 9, 1997, immediately prior to the commencement of the final pretrial conference, defendant filed a motion to strike the motion to compel as well as a response to the motion. The court heard oral argument at the time of the final pretrial conference. The following facts now appear to be undisputed:

The discovery in issue was served upon defendant on January 17, 1997. Responses to the discovery were subsequently served on February 24, 1997. The responses included various objections to the discovery. Since the court did not extend the time for the discovery responses, the court can only assume that the parties agreed to an extended response time. Plaintiff does not allege that the responses were untimely. On March 31, 1997, plaintiff filed a motion for an order compelling defendant to answer the outstanding discovery to which objection had been imposed. The certificate of compliance filed to satisfy the requirements of Fed.R.Civ.P. 37 and D. Kan. Rule 37.2 stated:

Plaintiff has conferred with defense counsel by telephone several times prior to and since the receipt of defendant’s responses and finally in person on March 25, 1997. Defendant refuses to supplement its responses. Defendant has made it clear that it will not, voluntarily, provide any additional information.1

At the final pretrial conference, defendant’s counsel challenged the veracity of the certificate of compliance. Specifically, defense counsel alleged that no attorney representing the defendant conferred in person with plaintiffs counsel on March 25, 1997, and, otherwise, denied discussion of the dispute several times by telephone prior to or since the receipt of defendant’s discovery responses. Specifically, defendant’s counsel denied any telephone conferences concerning this subject matter after receipt by plaintiff of defendant’s responses to the discovery in dispute. Upon inquiry by the court concerning the certificate, plaintiffs counsel stated that he had discussed the discovery dispute with plaintiffs counsel, Domenique Camacho, in his office on March 25, 1997, upon the occasion of the plaintiffs deposition. Ms. Camacho challenged the statement of plaintiffs counsel, asserting that there had been no deposition in the offices of plaintiffs counsel on March 25,1997, but that the plaintiffs deposition had been taken on or about February 5, 1997, at which time she was present in the offices of plaintiffs counsel. She stated that there had been a deposition of another witness on March 25,1997, in Kansas City, at which she was not present. Ms. Camacho [298]*298further alleged that the numerous telephone calls reported by plaintiffs counsel had not occurred, that there had been no telephone conferences since the service of the discovery responses and that she had not conferred with plaintiffs counsel on March 25, 1997.

Plaintiffs counsel, David Alegría, finally admitted that he had not discussed the discovery dispute on March 25, 1997, as he had certified, but alleged that the remaining sequence of events was as set out in the certificate. After much colloquy between counsel and the court, it appeared that immediately following the service of the discovery there was a conference between plaintiffs counsel and defendant’s counsel in the offices of David Alegría in Topeka, Kansas, at the time of the plaintiffs deposition, concerning objections which defendant’s counsel suggested might be interposed to the recently served discovery. The telephone calls remained in dispute. The court directed Mr. Alegría to submit a statement to the court identifying the dates of the challenged telephone calls. The court took the motions under advisement.

On the evening of April 10, 1997, plaintiff, through her counsel David Alegría, filed what is titled “Plaintiffs Notice of Withdrawal of Certificate of Compliance Filed March 31, 1997.”2 In that notice, counsel states:

Counsel notifies the court that the dates in the chronology of contacts with defense counsel relative to efforts to resolve defendant’s objections to plaintiffs written discovery is erroneous. The chronology was composed through the matching of dates with certain events remembered by counsel. However, the specific events remembered by counsel were matched in error with dates of events which although similar, had occurred on different dates than those stated in the affidavit.
Counsel submits to the court that the chronology presented was the result of innocent mistakes and errors and not intended as a misrepresentation to the court. On April 9, 1997 counsel became aware that the dates in the certificate were incorrect and that the events associated with such dates were incorrectly matched.

Plaintiff also filed a Motion to Substitute Plaintiffs Motion to Compel Filed March 31, 1997,3 in which plaintiff requests that the court allow plaintiff an additional 30 days within which to confer and to substitute her motion to compel with a motion for an extension of time, which was also submitted. A memorandum in support of the motions was also filed. On April 11,1997, Mr. Alegría, by letter, responded to the court’s direction concerning explanation related to the telephone calls. In that letter he states:

However, although I have had various conversations with counsel on a variety of topics, I have not been able to ascertain the exact dates in which conversations occurred concerning the discovery dispute other that (sic) the two events discussed at the pre-trial conference. Namely, one occasion just prior to the date in which the discovery was due and the other one in person when counsel deposed plaintiff in my office.

The troubling issue before the court is that on March 31,1997, Mr. Alegría filed a certificate of compliance alleging that on March 25, 1997, after conferring with defense counsel by telephone several times prior to and since the receipt of defendant’s responses to plaintiffs discovery, the parties conferred in person. The certificate is specific as to the sequence of events and to the date of the conference. The alleged conference was only six days before the certificate was filed with the court. Mr. Alegría now admits that the conference to which he made reference was on or about February 5, 1997.

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Cite This Page — Counsel Stack

Bluebook (online)
173 F.R.D. 296, 1997 U.S. Dist. LEXIS 10812, 1997 WL 259252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/myers-v-colgate-palmolive-co-ksd-1997.