Getting Ready for My Meet-and-Confer.

Don't you just dread having to talk to opposing counsel sometimes?

Hey Baby, Do You "Meet and Confer" Here Often?

In Miami, back in the old days, lawyers used to meet and confer over drinks at Sally Russell's and inevitably wind up going home with each other's wives.

Hey, it was the 70s!

But like our President we evolved, and by the 80s we had teams of waiting "faxers" who would instantly (well, it took about 25 minutes) send late-Friday nastygrams to opposing counsel, designed to ruin the weekend and necessitate a faxed response on Sunday.

Aah such pleasant memories....

But now we can "meet and confer" by having a Twitterwar, or by pinning mean things about each other on Pinterest, or via my personal favorite -- assembling a guild of World of Warcraft characters who simultaneously attack and destroy opposing counsel in a dungeon.

Either way, the one thing we NEVER do is actually speak with each other face to face.
 
But there's a new Sheriff federal judge in town, and he kicks it old-school:

Apparently, the parties disagree as to whether the Court’s Initial Order requires them to meet and confer in person or whether a telephone conference will do. The Court’s Order provided that, within the time prescribed, “the parties shall meet and confer regarding discovery and scheduling issues, as set out in Federal Rule of Civil Procedure 26(f) and Local Rule 16.1(b).” See Initial Order ¶ 2 [ECF No. 2]. This District’s Local Rule 16.1(b) expressly states that the parties shall meet and confer “in person, by telephone, or by other comparable means[.]”  See S.D. Fla. L. R. 16.1(b)(1). This Court has not ordered otherwise. Accordingly, the parties are free to meet by telephone, if they prefer. The Court has no preference, as long as the conference is conducted in timely fashion and the parties comply with their obligations set forth in the Rules and the Court’s Initial Order.

So WoW dungeon-war it is!!

But then there is this:

This Court is not in the business of babysitting the parties.

Such bright-eyed optimism, and I certainly hope he's correct -- but has he seen how our Bar behaves?

Magistrate Judge Goodman Advises Parties to Follow Rules!

 I've take the liberty of annotating Magistrate Judge Goodman's notice to the parties that he will be enforcing the rules when it comes to discovery:

All parties are advised that [In the Court of the Crimson King] the Court's practice is to follow [Follow You Follow Me] Federal Rule of Civil Procedure 37(a)(5),  which requires the Court to award attorney's fees to the prevailing party [Party All the Time] on a [ELO's Discovery] motion unless one of the enumerated exceptions is met [You Can't Always Get What You Want]. All parties are further advised that their failure to engage in a reasonable pre-filing conference [Life in the Fast Lane] is grounds for granting or denying the motion by default under Local Rule 7.I(a). [I Guess That's Why They Call It the Blues]

Man the judge really digs this stuff!

Perfect For A Friday: Magistrate Judge Brown Offers "Diatribe" on "Speedbumps"!

Hey, I don't write this stuff.

But I'm sure glad to be able to share it, so let's dig into a nice Friday lovenote from Magistrate Judge Brown on that elusive "meet and confer" rule we always seem to be talking about:

First, the Court will address compliance with Local Rule 7.1(a)(3). It was not properly complied with in this situation. Indicative of how this case is being litigated is the statement by plaintiff that there is no “authority for the proposition Local Rule 7.1(a)(3) requires counsel to discuss every detail of an anticipated request to the Court with the opposing party.” (Reply p. 5).  What part of “good faith” is counsel missing? It’s not “an anticipated request to the Court” that this rule is about, it’s about a discovery disagreement between the parties that, in most cases, should be worked out/compromised between professional parties without the need for the Court to act as referee. It is not “anticipated” until after the parties are unable, using the aforementioned good faith,to compromise. The rule does not exist as some speed bump counsel must travel to run to the Court - it exists because problems should be worked out wherever and whenever possible before coming to the Court. This rule exists so the parties will discuss exactly and entirely what their problems are to try to resolve them before running to the Court . . . not to go through some charade so as to cross the “speed bump” and run to litigate some more. While this diatribe is directed to plaintiff’s counsel, given the history of this case, it is not one-sided. The Court must agree that the parties can’t agree on who is signing this order, much less anything else. Were it not for that fact, this motion would be denied without further comment.

 'Nuff said!

BTW, did the Judge say "speed bumps" or "my humps"?

Oh well it's Friday:

This Order Reminds Me of Somebody!

You know how your mother or grandmother makes you feel sometimes:

"you don't write, you don't call, that's ok I'll lift the couch all by myself, why should I want to bother a busy person like yourself, don't worry I'll be fine all by my lonesome maybe the doctor will call at least I can speak with a real person once in a while...."

This Order has that sort of flavor:

Initially, the Court finds that defendant has failed to comply with local Rule 7.1(a)(3). That rule states that if there has been no pre-filing conference, the effort made for same shall be stated with specificity''. This was not done. For all this Court knows, the e-mail referred to in the certification was sent to opposing counsel an hour before the motion was filed.   Any future motions filed with this lack of specificity will be denied.

Now that it appears that proper compliance with the aforementioned local rule might have avoided the necessity of the filing of this motion at all, based on the response said motion is hereby GRANTED.

Wait, so you chastise the defendant but grant the motion anyway?

Yep, sounds just like my bubbe!

I Sent You a Draft Motion -- See, We Met and Conferred!

I've noticed that Magistrate Judge Goodman has a bug up his....is very particular about the Local Rule requirement that the parties meet and confer before filing a motion.

Here he is succinctly explaining the reasoning behind the rule, with which I totally agree:

Strict compliance with Local Rule 7.1(a)(3) is very important. The non-moving party does not always oppose relief sought by the moving party. E.g., id. at 1301 (noting that the non-moving party in that case “did not, for all practical purposes, object to the relief being sought in three of the motions”). Compliance with this rule may save the parties the time and costs associated with filing and responding to a motion. Wrangen, 2008 WL 5427785, at *1. This rule is also a mechanism for alerting the Court to whether a motion is opposed, allowing (in the case of unopposed motions) the Court to expedite its ruling and to avoid spending its own time unnecessarily considering issues that are mooted by the agreement.

So do you think sending a draft motion to the other side before filing complies with the Local Rule?

Let's see:

In their original Motion for Costs, Defendants provided the following:

Defendants certify that a good faith effort to resolve this motion by agreement has taken place. A draft motion and schedule of costs have previously been sent to opposing counsel.

This certification and the purported effort to confer it describes does not comply with Local Rule 7.1(a)(3). Local Rule 7.1(a)(3) is not satisfied merely by sending a copy of a draft motion to an opposing counsel. See Royal Bahamian, 744 F. Supp. 2d at 1299 n.2 (“‘Simply sending a letter without further follow-up does not constitute the type of effort to engage in a pre-filing conference anticipated by Local Rule 7.1’”) (quoting Wrangen, 2008 WL 5427785, at *1). Providing a draft motion to opposing counsel could be part of a good faith effort to confer, but in order to satisfy the rule this way, for instance, counsel must attempt to discuss the motion, and then wait a reasonable amount of time (as dictated by the situation) for a response before filing. In addition, my standard discovery procedures (which are technically inapplicable here) require an actual conversation.

Defendants’ certification does not even allow me to conclude with any certainty that Plaintiff’s counsel received the draft motion. Sending a copy of a motion does not guarantee that Plaintiff’s counsel actually received, let alone reviewed, considered, and declined to agree to any of the requested relief before Defendant filed it.

It goes on from there, but I'm guessing that's a no.

You Hardly Talk To Me Anymore...

Meet and Confer You Dummies

When I come through the door at the end of the day.

Have you wondered how "new" Magistrate Judge Goodman is doing?

Well, he's forced to put up with this crap in addressing both parties' failure to comply with the Local Rule "meet and confer" requirements:

In order to “confer,” a movant must have a give-and-take exchange with opposing counsel. Sending an email and demanding an immediate or near-immediate response and then filing a motion before having an actual substantive discussion with opposing counsel does not amount to a conference or consultation. Instead, it is a one-way missive.

Indeed, that is a problem I have generally with people unable to have civil conversations anymore.  In order to have an actual conversation, you have to approach it from the position that your own views may be incorrect, subject to change, and that you are absolutely willing to acknowledge and hear what the other person is saying and possibly even agree with it.

This is true for both participants in a true conversation.  Otherwise you are just yelling at each other, and may as well be speaking to a wall, potted plant, or (gasp!) Glenn Garvin.

I also like the "but they did it first" defense, which the Magistrate Judge addresses appropriately:

Counsel for Royal Bahamian and QBE both violated Local Rule 7.1(a)(3). The local rule permits the Court to deny all of the motions. QBE urges me to do so (for Royal Bahamian’s motions). QBE’s counsel, who apparently does not follow one of Benjamin Franklin’s better-known proverbs, asked for this severe consequence before QBE’s own, similar violations were exposed.8

The Judge's footnote then references one of Franklin's wisest proverbs: “To lengthen thy life, lessen thy meals.”

Not sure of its relevance here, Your Honor, but I totally agree with it.

So far I'm liking this judge......