Summary
finding that if a party provides a description or categorization of documents, it is incumbent upon the other party to obtain the documents desired by proceeding under Rule 34 or through informal requests
Summary of this case from Coppola v. Bear Stearns Co., Inc.Opinion
Civil Action No. 99-2520-CM
Filed: June 14, 2000.
Michael D. Strohbehn, J. Brett Milbourn, R Frederick Walters, Connie M Francis and Megan Cartwright Thornberry, Walters, Bender, Strohbehn Vaughan, P.C., Kansas City, MO for ELIZABETH R MASQUAT, CHARRISE LACY, WADENA NEWMAN, JENNIFER REGISTER and AMY BOEPPLER, plaintiffs.
Michael T. Metcalf, Miller Law Firm, P.C., Kansas City, MO; John Q Lewis, Jones, Day, Reavis Pogue, Cleveland, OH for MENTOR CORPORATION, defendant.
MEMORANDUM AND ORDER
The Court has under consideration a Motion to Compel Disclosures (doc. 29) filed by plaintiffs. Pursuant to Fed.R.Civ.P. 37(a) and (c), they seek an order to compel defendant to provide full and complete initial disclosures. Specifically, they want defendant to produce documents concerning class certification, product liability, and medical issues. They also seek reasonable expenses and attorney fees incurred in making the motion. Defendant opposes the motion.
The Court first notes that Fed.R.Civ.P. 37(a)(2)(A) directs movants to include with a motion to compel disclosures a certification that they have "in good faith conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action." D.Kan. Rule 37.2 states in pertinent part that "[e]very certification required by Fed.R.Civ.P. 26(c) and 37 . . . related to the efforts of the parties to resolve discovery or disclosure disputes shall describe the steps taken by all counsel to resolve the issues in dispute." These requirements encourage parties to satisfactorily resolve their discovery disputes prior to resorting to judicial intervention. Nave v. Artex Mfg., Inc., No. Civ.A. 96-2002-EEO, 1997 WL 195913, at *1 (D.Kan. Apr. 16, 1997). "Failure to confer or attempt to confer may result in unnecessary motions. When the court must resolve a dispute that the parties themselves could have resolved, it must needlessly expend resources that it could better utilize elsewhere." Pulsecard, Inc. v. Discover Card Servs., Inc., 168 F.R.D. 295, 302 (D.Kan. 1996).
Plaintiffs have provided no separate certification. The briefing, furthermore, reveals only that their counsel telephoned opposing counsel on March 21, 2000, and mailed a letter on March 23, 2000, in an effort to secure the disclosure without judicial involvement. The telephone call apparently ended with defense counsel "hang[ing] up" on counsel for plaintiff. ( See Letter from Milbourn to Lewis of 3/23/00, attached as Ex. B to Mem. Supp. Mot. Compel, doc. 30.) The letter states inter alia: "Please consider this letter our good faith effort to confer with you and secure the requested documents without court action." ( Id.) No where does counsel for plaintiff certify that he or his clients conferred or attempted to confer in good faith to resolve the dispute without judicial intervention. In the absence of such certification, the Court generally declines to find good faith efforts to confer. In this instance, it finds the efforts to confer inadequate.
Despite the inadequacies of the efforts to confer, the Court declines to overrule the motion on the procedural defect. The motion fails on its merits. There is some indication, furthermore, that additional conferring on the matter would have been futile. The lone phone call about the dispute ended with some sort of disconnection. Plaintiffs believe defense counsel "hung up" on their attorney. Although there are many possible reasons for the disconnection, the belief of plaintiffs appears plausible in that defendant makes no effort to explain the disconnection. The Court will, nevertheless, attribute no unprofessionalism to defense counsel on the facts before it. For the benefit of all parties, however, it notes that unprofessional conduct has no place in the practice of law. The Court has no tolerance for such conduct. It expects attorneys practicing before it to conduct themselves in an ethical, professional, and cooperative manner.
The motion fails on the merits. Fed.R.Civ.P. 26(a)(1)(B) requires no document production as part of a party's initial disclosures. See Comas v. United Tel. Co., No. Civ.A. 94-2376-GTV, 1995 WL 476691, at *2 (D.Kan. Aug. 10, 1995). The Rule requires parties to provide "a copy of, or a description by category and location of, all documents . . . in the possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings." Parties may make initial disclosures by describing or categorizing potentially relevant materials so that the opposing party may "make an informed decision regarding which documents might need to be examined." Fed.R.Civ.P. 26(a)(1) advisory committee notes (1993 amend.). If a party provides only a description or categorization of documents, "the other part[y] [is] expected to obtain the documents desired by proceeding under Rule 34 or through informal requests." Id. In this instance, the parties have made no agreement to produce documents in lieu of identifying them in accordance with Fed.R.Civ.P. 26(a)(1)(B). The failure to produce documents by defendant thus provides no reason to compel further disclosure.
Perhaps seeing the error of their original position on the motion, plaintiffs argue in their reply brief that defendant did not identify its documents in accordance with Rule 26(a)(1)(B). Although the argument has at least some merit in that the initial disclosures of defendant provides no location for the identified categories of documents, the Court declines to entertain the argument. Parties cannot raise new issues or arguments in a reply brief. Boilermaker-Blacksmith Nat'l Pension Fund v. Gendron, 67 F. Supp.2d 1250, 1257 n. 4 (D.Kan. 1999). Plaintiffs, furthermore, provide nothing to indicate that they made good faith efforts to confer on this issue. The proffered materials indicate only that plaintiffs made efforts to obtain production of documents. Nothing of record indicates that they made reasonable efforts to obtain identification of documents in accordance with Rule 26(a)(1)(B).
For the foregoing reasons, the Court overrules the Motion to Compel Disclosures (doc. 29) filed by plaintiffs. It could perhaps entertain the entry of an award of costs and expenses in accordance with Fed.R.Civ.P. 37(a)(4)(B). In view of the clear deficiency of the disclosures of defendant, however, the Court finds circumstances that make an award of expenses unjust.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 14th day of.
David J. Waxse United States Magistrate Judge