United States District Court, D. Kansas
ORDER ON MOTION TO COMPEL DISCOVERY RESPONSES
KENNETH G. GALE, Magistrate Judge.
Now before the Court is the Motion to Compel Discovery Responses filed by Defendant BMO Harris Bank N.A. ("Defendant bank). (Doc. 21.) Having reviewed the submissions of the parties, the Court DENIES the motion.
This matter was initially filed in the District Court of Johnson County, Kansas, in May 2013. Plaintiffs claims include breach of contract, conversion, promissory estoppel, and unjust enrichment stemming from a lending relationship with Defendant bank relating to a series of loans totaling approximately $50 million. (Doc. 1-1.) Plaintiff's allegations include a contention that Defendants improperly liquidated investments from an account belonging to Plaintiffs to partially satisfy obligations owed to Defendant Bank. The case was removed by Defendants to the United States District Court for the District of Kansas on June 19, 2013. ( See Doc. 1.)
Plaintiffs provided the discovery responses at issue after receiving certain extensions to do so. Based on the information provided by Defendant, there were, at most, three telephone conversations that occurred prior to the "golden rule" being sent during which the discovery requests may have been discussed. In regard to two of these conversations, Defendant merely makes the oblique reference that "[c]oncern about the lack of information [was] expressed on two phone calls...." (Doc. 27, at 2.) Counsel does not state whether this "concern about the lack of information" was expressed in regard to subpoena responses or discovery requests, as both are discussed in this portion of Defendant's reply brief. For the purposes of this motion, the Court will, however, assume that this concern related at least in part to the discovery requests at issue.
Defense counsel subsequently served a "golden rule" letter on Plaintiff's counsel. Counsel for the parties, however, did not subsequently confer before Defendant filed the present motion.
District of Kansas Rule 37.2 outlines a party's duty to confer regarding discovery disputes. The rule states:
[t]he court will not entertain any motion to resolve a discovery dispute pursuant to Fed.R.Civ.P. 26 through 37... unless the attorney for the moving party has conferred or has made reasonable effort to confer with opposing counsel concerning the matter in dispute prior to the filing of the motion. Every certification required by Fed.R.Civ.P. 26(c) and 37 and this rule related to the efforts of the parties to resolve discovery or disclosure disputes must describe with particularity the steps taken by all attorneys to resolve the issues in dispute.
A "reasonable effort to confer" means more than mailing or faxing a letter to the opposing party. It requires that the parties in good faith converse, confer, compare views, consult, and deliberate, or in good faith attempt to do so.
D. Kan. Rule 37.2. See also Passmore v. HSBC Bank Nevada, N.A., 11-4094-EFM/KGG, 2012 WL 224322, *1 (D. Kan. Jan. 25, 2012).
Even assuming the pre-golden rule letter telephone conversations referenced above related to the discovery requests at issue, the fact remains that there was no conversation, conference, comparison of views, consultation, and deliberation, or any good faith attempt to do so after the golden rule letter was sent. Defense counsel simply left Plaintiff's counsel a single "voice mail" on November 13, 2013 (a mere day before the deadline in Defendant's golden rule letter) and received a voice mail in response from Plaintiff's counsel two days later. (Doc. 27, at 3.) There is no indication that defense counsel made any additional attempt to speak with Plaintiff's counsel in the four days before the present motion was filed. This does not even approach the meeting the "good faith" requirements of D. Kan. Rule 37.2.
The present motion must fail because there is no indication that counsel for the parties ever met face-to-face or otherwise spoke directly.
When the dispute involves objections to requested discovery, parties do not satisfy the conference requirements simply by requesting or demanding compliance with the requests for discovery. The parties need to address and discuss the propriety of asserted objections. They must deliberate, confer, converse, compare views, or consult with a view to resolve the dispute without judicial intervention. They must make genuine efforts to resolve the dispute by determining precisely what the requesting party is actually seeking; what responsive documents or information the discovering party is reasonably capable of producing; and what specific, genuine objections or other issues, if any, cannot be resolved without judicial intervention.
Stouder v. M & A Technology, Inc., No. 09-4113-JAR-KGS, 2011 WL 768738 (D. Kan. Feb. 28, 2011). See also, Contracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 456, 459 (D. Kan. 1999).
Defense counsel raises certain complaints about the lackadaisical effort by Plaintiff's counsel to address these issues. While the Court is sympathetic with this situation, the fact remains that the duty is on the moving party to meet the requirements of Rule 37.2, not the responding party. Although the Court can envision situations in which a responding party would intentionally stymie a moving party's good faith attempts to confer, the Court does not find that to be the case here. In the present matter, defense counsel left a single telephone message for opposing counsel. Further, that message was left only one day before the deadline contained in Defendant's ...