In Episode 170, Kelly Twigger discusses what the meet and confer requirement in the Federal Rules means and what can happen when a party attempts to weaponize discovery through threats and demands in Wilbert v. Pyramind Healthcare, Inc.
Introduction
Welcome to our Case of the Week segment on our podcast. My name is Kelly Twigger. I am the Principal at ESI Attorneys, a law firm for ediscovery and information law, and the CEO and founder at Minerva26 (formerly eDiscovery Assistant) where we take the insights from our practice and provide a strategic command center for you to leverage the power of Electronically Stored Information (ESI). Thanks so much for joining me today.
This week’s decision on our Case of the Week comes to us from the case of Wilbert v. Pyramid Healthcare, Inc., and it’s a lesson on what the meet and confer requirement of the Federal Rules really means. For more than a decade now, we have had discussions with judges and attorneys about the “drive-by meet and confer”, in which parties are not prepared to discuss the issues that are necessary, haven’t learned what they need to know from their clients, and they show up in an adversarial manner that is completely contrary to the entire purpose of the meet and confer.
Hat tip to Dan Regard of iDiscovery Solutions for identifying this decision for us during last week’s LegalWeek. This decision today is from United States Magistrate Judge Scott Hardy, who, by the way, has the same name as my fabulous brother. Magistrate Judge Hardy obliterates counsel here for his behavior in refusing to conduct meet and confer sessions with defense counsel and then misrepresenting it to the Court by way of a certificate attached to his motion to compel.
Let’s dive in.
Background and Facts
The plaintiff here brought a complaint for pregnancy-based discrimination and harassment, culminating in her termination. According to the Court, the parties have disagreed on how to handle the discovery of ESI throughout the matter. We are before the Court here on a motion to compel that was filed by the plaintiff and by her counsel, Joshua Ward.
In what is never a good sign for the moving party on a motion to compel, the Court began its ruling with an in-depth discussion of the various rules that require the parties to meet and confer prior to filing a motion. Starting with Rule 26’s requirements of relevance and proportionality, the Court then moved to Rule 401 on relevance, and then to Rule 37 governing disputes. The Court then circled back to Rule 26’s limitations on accessibility and duplicative discovery before diving into the requirement that the parties meet and confer in planning for discovery. As part of that specific discussion, the Court noted that during the meet and confer, the parties “must discuss”, among other topics:
[A]ny issues about preserving discoverable information, and must also develop a proposed discovery plan, for which the attorneys of record are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court a written report outlining the plan.
That is all in accordance with Federal Rule of Civil Procedure 26(f)(2). The discovery plan, according to the Court here, must state the parties’ views and proposals on several topics delineated in Rule 26(f), including issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced.
The Court also notes that the rules empower the court to order the parties to meet and confer in person — which needs to be used much more often, in my opinion. The Court then notes that Rule 37(f) allows the court to require a party or its attorney to pay the other party’s reasonable expenses if the party or the attorney fails to participate in good faith in developing and submitting a proposed discovery plan under Rule 26. Now, if that doesn’t set a stage for what’s to come, I don’t know what does.
The Court then went on to explain how those requirements of the Federal Rules are furthered by local rules in the United States District Court for the Western District of Pennsylvania, where this matter is pending. Local Rule 2.6 from the Western District imposes a duty to meet and confer both at the Rule 26 conference and following requests for ESI. Included in that requirement is counsel’s obligation to confer with their client and “investigate their clients’ ESI systems to understand how such ESI is stored, how it has been or can be preserved, accessed, retrieved and produced; and any other issues to be discussed at the Rule 26(f) conference.”
The Court notes that the “attorneys must also identify a person or persons with knowledge about their client’s ESI, with ‘the ability to facilitate, through counsel, preservation and discovery of ESI.’” In addition to those local court rules, Magistrate Judge Hardy pointed to the presiding judicial officer’s published practices and procedures regarding the parties to jointly contact chambers to schedule an informal status conference for discovery disputes. The Court then stated that no discovery motions are to be filed until after the conference, except in the cases of emergency, as certified by counsel. Counsel is also required, under the presiding judicial officer’s practices and procedures, to file a certification “that the movant has discussed the matter with all other parties and to expressly indicate whether the opposing party consents to or opposes the motion and whether such party intends to file a response.”
Having laid out all of the applicable rules for counsel to follow, the Court then turned to the facts of this case and plaintiff’s compliance — or I should say lack of compliance — with them.
As I mentioned at the outset, the parties could not agree on the scope or methodology for ediscovery in this case. On April 3, 2024, counsel for plaintiff served 25 separate requests for production titled Request for ESI Search. Now, that’s a new title for me and, interestingly, not what Rule 34 contemplates, but I digress. In conjunction with those 25 RFPs, counsel served defendant with the Ward Firm ESI Plan titled J.P. WARD & ASSOCIATES, LLC – MANDATORY RULE 26(f)(2), (3) ESI DISCOVERY PLAN FOR USE IN EMPLOYMENT LAW CASES. That plan was a 30-page document that allegedly outlined his law firm’s standard procedures for the Rule 26(f) conference and subsequent proceedings.
The Court absolutely loved (yes that’s sarcasm) the use of the word “mandatory” in the Ward Firm ESI Plan, finding that it reinforced Attorney Ward’s intent to impose extensive ESI protocol requirements on opposing counsel in employment cases that far exceeded the scope and depth required by the District Court’s checklist for meet and confer, as well as its guidelines. The Court also found that “in the Court’s estimation, the Ward Firm ESI Plan frames certain conferral elements in an argumentative and non-negotiable manner, suggesting an unwillingness to modify it during the required conferral process.” I have to wonder whether, in fact, this document was meant to be shared with opposing counsel and with the Court. Probably not. The Firm ESI plan required that defendants not be permitted to conduct their own collections, but instead be required to hire a third party vendor to do it. If you’re raising your eyebrows, so am I.
That fact, combined with the sheer breadth of the requests and the inclusion of terms that were not related to plaintiff’s claims, as well as plaintiff’s counsel’s adamance on how quickly they should be complied with, all left the Court with a less than positive view of counsel’s actions. All of those issues were discussed at a case management conference at which the Court expressed its disapproval of plaintiff’s counsel’s tactics and issued an order requiring counsel to confer meaningfully on the issues. The parties were not able to resolve the issues under that order, and months later submitted a joint letter to the Court, after which the Court granted Attorney Ward leave to file this motion to compel. That order granting the leave to file also required Attorney Ward to accompany his motion with a certification of conferral and to include the specific factual basis for each claim, and each discovery issue, supported by affidavits or declarations. Attorney Ward then filed the motion to compel, and that’s what the ruling is on here.
As you may have guessed by now, counsel’s motion and supporting materials fell far short of what the Court ordered. The motion did not include support for factual assertions or specify each discovery issue that was the subject of the motion, both of which the Court had ordered.
Analysis
The Court first objected to the overly broad requests and scope of custodians asked for by plaintiffs and noted that, while defense counsel had attempted to confer with Ward, Ward either ignored their overtures or imposed “egregious barriers to doing so.” According to the Court, Ward failed to explain the relevance for each of his proposed custodians and failed to meet his burden. As such, the Court denied the motion to compel.
The Court also rejected Ward’s insistence that defendants run hit reports on all of his search terms before determining whether those search terms were relevant. The Court noted that, “Attorney Ward has chosen to ignore the Court’s observations in this regard and persists in his insistence that Defendants expend the time, effort and resources to search the computers and phones of a wide swath of custodians (relevant or not) for a wide range of search terms (relevant or not), and for an overly broad time period (relevant or not), relying instead on the apparent authority of his own Ward Firm ESI Plan.”
In essence, and I really encourage you to read this opinion, the Court found that counsel had failed to identify an appropriate time period, and a scope of discovery that fit within the allegations of the complaint. Plaintiff’s counsel had also defied the Court’s order regarding the scope of the matter. As a result, the Court found that Ward’s motion did not satisfy that burden under Rule 37, and, in denying the motion, issued this quote:
The Court is also of the view that Attorney Ward’s self-proclaimed “mandatory” approach to ESI discovery in employment cases not only contravenes several provisions of the Federal Rules of Civil Procedure and this District’s Local Rules, but Attorney Ward’s unilateral imposition of such ESI protocols in all such cases also defies the requirement that even relevant discovery must be:
… proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the party’s resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). It is evident that, in this case, Attorney Ward has ignored his duty to refrain from discovery efforts that are unreasonable or unduly burdensome or expensive in the context of those proportionality factors.
The Court then turned to counsel’s behavior, and that’s never a good sign. The Court took significant issue with Ward’s behavior, including insisting on mandatory protocols, making disproportional discovery requests and then insisting that any objection proposed by defense counsel was a failure to confer, and requiring that defense counsel hire an outside vendor to conduct collections.
Now I know I’ve given you a lot of quotes, but this one from Magistrate Judge Hardy kind of says it all, and I want you to pay attention to this because we’ve gotten away from the cooperation in ediscovery that is required to make it cost effective and meet everyone’s needs. So pay attention to this quote:
The conferral obligation is not a bargaining chip to be offered in exchange for a concession on a disputed discovery process or requested item. Conferral is expected for all discovery planning and dispute resolution and is a precondition to seeking court intervention. A party may also not impose unreasonable conditions or barriers on their willingness to meet and confer. Here, Defense Counsel contends that Attorney Ward insisted that he would only meet in person to confer if Defense Counsel acquiesced to his demand that such meeting be recorded. Such obdurate behavior in this case lacks justification, defies the bounds of expected professional behavior, and was seemingly deployed to harass Defense Counsel and thwart any meaningful and constructive attempts at resolving the parties’ disputes.
As a result of Ward’s behavior, defense counsel refused to meet in person under the proposed conditions and continued conferral efforts in writing. Despite all of this, Ward affixed a certificate of meet and confer to his motion, as compelled by Rule 37(a). The Court found that Attorney Ward did not satisfy his obligation to confer in good faith and ordered Ward to show cause why he and his law firm should not be sanctioned for (1) failing to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f) and all related court rules, and (2) misrepresenting to the Court that he has satisfied his conferral obligations in good faith before filing the motion to compel as required by Rule 37.
Takeaways
What are our takeaways from today’s decision?
Well, I love this decision because Magistrate Judge Hardy is holding plaintiff’s counsel to the standard of cooperation that should be required of every party in order to facilitate discovery. There’s a lot of debate about whether or not judges have the time and bandwidth at the federal and, in some cases, the state, court levels to be able to manage counsel in terms of cooperation and proportionality in discovery issues. It’s a problem, and what I would suggest is that more courts, like Judge Hardy does here, hold these parties to a standard so that they know, coming into his Court, that he will hold them to the requirements of cooperation and proportionality in the Federal Rules of Civil Procedure.
There’s no question here that the discovery of ESI is complex and it requires new processes and procedures than discovery in paper did before. Looking back, however, because I started practicing when we still had paper, I’m not sure that we couldn’t have used more of these rules for paper, but that’s another topic altogether. eDiscovery requires cooperation, and the meet and confer process is where that cooperation takes place. We have to have it.
I do want to give kudos to the plaintiff’s law firm for actually having guidance here in its plan on how to engage in discovery and the best way to get discovery for their clients in the type of law that they practice. I preach that every week. You need to know what your discovery obligations are for the type of law that you practice and the clients that you have. You don’t need to be all seeing all of the time. Stay up to date on what’s happening, understand what the issues are and then learn them as you need to for your matters. But how you lay out that information in a guide is crucial. I’m going to guess that the firm here, as I mentioned earlier, never anticipated that the guide would be sent to opposing counsel or that it would end up in court. So the takeaway really is this: give your lawyers guidance on how to handle ediscovery, but make sure you train them effectively on how to use that guidance. It doesn’t look like that happened here, and the language and confrontational nature of the guidance from the firm did not play well with the Court.
It is no secret that defense counsel with more resources regularly try to run over plaintiff’s counsel in discovery, so part of me understands plaintiff’s counsel’s approach, but there is a middle ground to what occurred here. You can’t fake knowing how to discuss ediscovery. You just can’t. And when you try, because you haven’t taken the time to learn what you are doing, you may just end up having to show the court why you shouldn’t be sanctioned. Misrepresenting anything to a court is the quickest way to undermine your client’s case. Judges are humans, and you need the judge to trust your word can be relied on. We all know that once bitten, twice shy, and that applies in court as well.
The adversarial nature of litigation needs to be tamped down to properly deal with ediscovery. To feel confident stepping away from that adversarial position, you need to feel confident in how you deal with ESI. Blindly following a guide or a checklist from a court or a form someone gives you is not the same, and it will cause you to miss positions for your client or end up like counsel did here.
Finally, know the rules of the court you are in. The Western District of Pennsylvania has local rules, and Magistrate Judge Hardy pointed to the presiding judge’s case management order. When you have a case before a judge, the judge’s local rules, or whatever carries the day in your case, should be sitting on your desk. I used to keep mine in a file folder by case, sitting behind me so I could reach over and just grab them. Bookmark them on your browser if that’s the way you prefer to work. You need to be re-reviewing those rules regularly so you have them in your head as strategy. Plaintiff’s counsel didn’t do that here.
Discovery is rule-driven, and the complexity of ediscovery means that you have to know and leverage the rules and the case law in your strategy. Learn from the mistakes that plaintiff’s counsel made here. Don’t just blindly follow a guide. Know exactly what you need to know for purposes of your case.
Conclusion
That’s our Case of the Week for this week. We’ll be moving to doing the Case of the Week every other week to be making room for other content on our newly branded Meet and Confer podcast, so be sure to tune in for our next episode, whether you’re watching us via our blog, YouTube, or downloading it as a podcast on your favorite podcast platform. You can also find back issues of Case of the Week on your favorite podcast platform and be sure to subscribe, as we’ll be adding new content apart from the Case of the Week segments. Have a great week!
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