Arguing Class Actions is a monthly column by Adam J. Levitt for the National Law Journal.
Reprinted with permission from the November 4, 2024 edition of the National Law Journal. © 2024 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
In class action and complex cases, the discovery process is essential for getting documents to support the case, survive summary judgment, and, ultimately, prosecute the case. The documents, key witnesses, and information needed are largely in defendants’ possession, custody, or control, and, without the ability to access them, plaintiffs’ claims face dismissal. The “meet and confer” requirement in the Federal Rules of Civil Procedure was added in 2006 to expedite the resolution of disputes that can arise during this process. The unfortunate reality, however, is that rather than expedite the dispute resolution process, it has, instead, become a Trojan horse for delay. Indeed, while many rule changes have unintended consequences, the flip from help to hindrance here has been nothing short of breathtaking and disappointing, in equal measure. The never-ending “we’ll take it back to our client” drumbeat of defense counsel almost always translates to: “We’re going to need two more weeks before we even tell you if we were able to contact our client.”
For instance, Rule 34 provides for an unlimited number of document requests to ensure that plaintiffs can craft and serve as many requests as necessary to obtain crucial discovery. And most importantly, these documents provide broad insight into defendants’ wrongful conduct. But, quite often, defendants take unreasonable positions in their written responses, such as unfairly limiting what they’re agreeing to produce, or obtusely objecting to common terms as ambiguous, such that they cannot possibly respond. Defendants still even unilaterally respond with boilerplate objections across the board—a clear violation of amended Rule 34.
Yet, despite clear violations of the Rules, Rule 37(a)(1) requires a meet and confer before moving to compel. But there is no requirement that the parties do so quickly, and, often, the meet and confer becomes time-consuming, adversarial, and frequently unproductive. As is the case in other areas of litigation, defendants are incentivized to slow-walk the meet and confer process, a tactic that wastes time, is designed to wear down plaintiffs, and typically appears in three flavors: lack of availability, lack of authority, and lack of clarity whether they agree or disagree.
The first flavor is the lack of availability. Large corporate defendants are often represented by law firms with thousands of attorneys, but when plaintiffs seek a meet and confer date, they are often told that defense counsel isn’t available for an extended time period. The excessive time it can take to begin the meet and confer process has led several courts to craft local rules or standing orders regulating the process. The Northern District of Illinois, for instance, has a robust “Standing Order on Discovery Motions and Motions to Compel” requiring parties to act upon a meet and confer request within two business days, absent good cause for delay, upon potential “forfeiture of the party’s position with respect to the requested discovery.”
Even more infuriating is the second flavor: the lack of authority. A first meet and confer is rarely a last one: defense counsel frequently claim to be unable to agree (or disagree) on any of the disputes presented by plaintiffs without first consulting their client. But this position is, at best, pretextual, because there’s almost always sufficient time for client conferral prior to a meet and confer, or, if a defendant truly doesn’t have the requisite client authority prior to the meet and confer date, advising opposing counsel of such, together with a firm (short) date certain to reschedule, would go a long way toward streamlining, rather than attenuating, this process. Indeed, in any event, why appear without authority? This tactic is particularly egregious, given that the meet and confer is typically preceded by a detailed “deficiency letter,” laying out the various ways in which plaintiffs are challenging defendants’ discovery response deficiencies. Defense counsel appearing with no authority to make decisions obviates the purpose of the conference and produces no forward movement on the dispute.
What it does produce is the third flavor: lack of impasse. With the inability to give firm answers one way or the other, a second meet and confer is almost always necessary. This second meeting often does not bring resolution; instead, small progress on discrete parts of the dispute gives rise to the argument that a motion to compel on the rest would be premature because the parties are still negotiating. Defendants may complain to an overburdened judge (who would prefer that the parties resolve their disputes themselves) that plaintiffs have not acted in good faith in bringing a dispute that was not fully negotiated. This is complicated by the fact that, even when parties do agree that they’re at impasse, there’s no guarantee the judge will act—quickly disposing of potentially time-consuming motion practice by sending the parties back to negotiate further can be too tempting.
The defense bar may protest: “Communication with large corporate clients can take time!” “Would you rather incremental movement or no negotiation at all?” “If you want us to just answer discovery and not object to every little thing, write better discovery requests, and don’t go on fishing expeditions!” Such arguments overlook the information and resource asymmetry constantly present in complex litigation. The difficulty of obtaining necessary information from defendants frustrates the factfinding process, particularly given that it is plaintiff’s burden to prove its case. Meet and confer abuses also drag actions out years beyond what their natural lives should be—resulting in increased burdens on the parties (although those burdens rest more heavily on plaintiffs) and the court.
So, what’s the answer to stemming abuses of a process that was initially implemented to expedite the discovery process? Rule 37 offers one solution. Rule 37(a)(5) states, unequivocally, that the court “must … require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). But, if getting to the motion stage is our problem, how best to accelerate the process? By taking a few steps early in the discovery process, plaintiffs can prepare a record that encourages compliance with the letter and spirit of the Rules by defendants.
First: Know your jurisdiction and its rules. The Northern District of Illinois is not the only court with rules requiring the speedy meet and confers. Use these rules to your advantage.
Second: Set expectations. When writing an initial deficiency letter, clearly outline the discovery dispute and set fixed dates and times for resolution that are reasonable, but short. State the expectation that defense counsel will come to the meet and confer with authority to negotiate, resolve, or declare impasse, and that a failure to do so will be considered a failure to meet and confer in good faith.
Third: Make the record. Designate someone to take detailed notes during the meet and confer and ensure those notes become a prompt post-meet and confer email or letter that notes areas of progress or lack of progress and sets out upcoming deadlines for the resolution of remaining disputes. There may be times where securing a court reporter may be necessary. Clarity is our friend.
Fourth: Maintain an eye toward your eventual audience—a judge, magistrate, or special master—and keep the disputes as simple and straightforward as possible. Be ready to compromise, or even withdraw, disputes that don’t directly serve your affirmative case and avoid needlessly further muddying the water.
Finally, embrace that litigation can be tiring, exasperating, and stressful, especially when it boils down to long, difficult calls with opposing counsel. Particularly where you have co-counsel to assist, resist the urge to do everything yourself. Plaintiffs’ counsel can rely upon the diversity of our experience and expertise and the advantage of numbers. Be indefatigable, and when you’re not, tag out for your co-counsel to continue the push.
Adam J. Levitt is a founding partner of DiCello Levitt, where he heads the firm’s class action and public client practice groups. He can be reached at [email protected].
Thank you to DiCello Levitt partner Diandra “Fu” Debrosse and associate James Ulwick for contributing to this column.