Nevada Power Co. v. Monsanto Co.

151 F.R.D. 118, 1993 U.S. Dist. LEXIS 17584, 1993 WL 379468
CourtDistrict Court, D. Nevada
DecidedSeptember 20, 1993
DocketNo. CV-S-89-555-LDG (LRL)
StatusPublished
Cited by262 cases

This text of 151 F.R.D. 118 (Nevada Power Co. v. Monsanto Co.) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nevada Power Co. v. Monsanto Co., 151 F.R.D. 118, 1993 U.S. Dist. LEXIS 17584, 1993 WL 379468 (D. Nev. 1993).

Opinion

AMENDED ORDER

LEAVITT, United States Magistrate Judge.

In the 1960’s and 1970’s, Defendants General Electric and Westinghouse Electric sold to Plaintiff certain electrical equipment containing polychlorinated biphenyls (PCBs) which had been produced by Defendant Monsanto. In this action Plaintiff claims that Defendants were aware of the health and environmental dangers of PCBs at the time Plaintiff purchased the electrical equipment, yet failed to inform Plaintiff of those dangers. Plaintiff seeks recovery of the cost of complying with Environmental Protection Agency regulations mandating the replacement of some of the PCB-laden electrical equipment.

The parties have engaged in lengthy discovery, which has generated numerous disputes. The dispute presently before the Court arises out of Defendants’ refusal to produce documents under claims of attorney/client privilege and the work product doctrine. Plaintiff has filed a Motion to Compel Production of Purportedly Privileged Documents (#256), in which Plaintiff contends that because Defendants have asserted only general, unsubstantiated objections to Plaintiffs discovery requests, they have waived their claims of privilege.

PROCEDURAL BACKGROUND

On September 2 and 11, 1992, Plaintiff propounded interrogatories, requests for admission and requests for production of documents on all Defendants. Defendants asserted general privilege objections and withheld some 350 purportedly privileged documents.1

Local Rule of Practice 190—1(f)(2) for the United States District Court for the District of Nevada provides:

Discovery motions will not be considered unless a statement of moving counsel is attached thereto certifying that, after personal consultation and sincere effort to do so, counsel have been unable to satisfactorily resolve the matter.

Pursuant to the Rule’s “meet and confer” requirement, the parties met on November 23, 1992, to discuss outstanding discovery disputes. Paul E. Merrell, counsel for Plaintiff, claims he informed Defendants’ counsel at the meeting that Defendants’ general privilege objections were legally insufficient because they did not adequately identify those documents Defendants sought to withhold from discovery. Defendants’ counsel promised to look into the matter and report back [120]*120to Merrell, but did not do so. When he didn’t hear from Defendants’ counsel for almost two months, Plaintiffs counsel filed the instant motion.

DISCUSSION

Plaintiffs principal contention is that Defendants have waived their claims of privilege by failing timely to provide Plaintiff with privilege logs or affidavits in support of their general privilege objections. It is uncontro-verted that Defendants didn’t produce privilege logs until February 12, 1993, the same day on which they filed their Opposition to Plaintiffs motion.2

1. Parties’ Duty Meaningfully to Meet and Confer

Local Rule 190—1(f)(2) expressly requires that a discovery motion be accompanied by an affidavit of moving counsel “certifying that, after personal consultation and sincere effort to do so, counsel have been unable to satisfactorily resolve [their dispute].” The purpose of this rule is simple: to lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants, through promotion of informal, extrajudicial resolution of discovery disputes.3 Tarkett, Inc. v. Congoleum Corp., 144 F.R.D. 282, 285-86 (E.D.Pa.1992); Dondi Properties Corp. v. Commerce Savings & Loan Assoc, et al., 121 F.R.D. 284, 289 (N.D.Tex.1988) (“[t]he purpose of the conference requirement is to promote a frank exchange between counsel to resolve issues by agreement or to at least narrow and focus the matters in controversy before judicial resolution is sought”).

Inherent in Rule 190—1(f)(2)’s language, and essential to the Rule’s proper operation, is the requirement that parties treat the informal negotiation process as a substitute for, and not simply a formalistic prerequisite to, judicial resolution of discovery disputes. See Tarkett, 144 F.R.D. at 285. See also Dondi, 121 F.R.D. at 289 (noting that “in many instances the conference requirement seems to have evolved into a pro forma matter”). To that end, the parties must present to each other the merits of their respective positions with the same candor, specificity, and support during informal negotiations as during the briefing of discovery motions. Only after all the cards have been laid on the table, and a party has meaningfully assessed the relative strengths and weaknesses of its position in light of all available information, can there be a “sincere effort” to resolve the matter. Further, to ensure that the parties have made every effort to reach a “satisfactory resolution,” judicial intervention should be considered appropriate only when (1) informal negotiations have reached an impasse on the substantive issue in dispute, or (2) one party has acted in bad faith, either by refusing to engage in negotiations altogether or by refusing to provide specific support for its claims of privilege. See Crown Cork & Seal, Co., Inc. v. Chemed Corp., 101 F.R.D. 105, 106-7 (E.D.Pa.1984) (discovery disputes should not be referred to the court unless such serious differences exist between counsel that further efforts at negotiation are pointless, or a court ruling is required on a disputed issue of law).

In the instant case, Plaintiffs Motion to Compel was accompanied by counsel Mer-rell’s affidavit that, “after personal consultation and sincere effort,” the parties were unable to resolve the privilege issue. However, by Merrell’s own admission, the parties’ “sincere efforts” to resolve their dispute consisted entirely of a single discussion during the November 23, 1992 meeting, at which time it was agreed only that Defendants would “look into” the matter and contact Plaintiff. At no time prior to the filing of Plaintiffs motion did Defendants inform Plaintiff of the nature of the documents they were withholding under claim of privilege, or present Plaintiff with a specific basis for their claims of privilege. Nor did Plaintiff expressly request privilege logs from any of [121]*121the defendants.4 In short, no party pursued the matter after the November 23, 1992 meeting, and no substantive discussions were ever conducted on the privilege issue. Given the dearth of meaningful dialogue on the privilege issue, it is apparent that, contrary to the averments of Plaintiffs counsel, the parties have not even begun to make a “sincere effort” to resolve the privilege dispute amongst themselves.

2. Production of Privilege Logs

The issue, then, is what constitutes compliance with the mandate of Rule 190-1(f)(2) where the discovery dispute in question involves the withholding of documents on the basis of privilege. As stated above, a meaningful discussion under Rule 190—1(f)(2) is one in which the parties truly air their respective positions. This requires that the objecting party offer such factual support for its position as will allow the party seeking discovery to make an informed evaluation of the claim with respect to each document. See Eureka Financial Corp. v. Hartford Acc. & Indem. Co., 136 F.R.D. 179, 183 (E.D.Cal. 1991) (party claiming privilege must provide party seeking discovery with the basis for contesting the claim).

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151 F.R.D. 118, 1993 U.S. Dist. LEXIS 17584, 1993 WL 379468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nevada-power-co-v-monsanto-co-nvd-1993.