United States District Court, D. Montana, Missoula Division
JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE.
Danny Warner, appearing pro se, moves for an order compelling
all Defendants to fully and properly respond to discovery
requests he submitted to each of them. After he filed his
motion, Warner and Defendant James Dusing resolved the
discovery dispute between the two of them, and by Order
entered January 2, 2019, the Court recognized Warner's
withdrawal of his motion to compel as it pertains to Dusing.
respect to Defendants Chuck Curry, Jennifer Root, and Sgt.
Schuelen, Warner's motion to compel asserts they entirely
failed to provide any discovery responses to him at all. On
December 24, 2018, Curry, Root and Schuelen filed their brief
in opposition to Warner's motion to compel explaining
that they did, in fact, serve their discovery responses upon
Warner on October 24, 2018, and they provided the Court with
a copy of their responses which includes a certificate of
service dated October 24, 2018. (Doc. 76-1 at 18 of 179.)
reply brief, Warner advises he has now, for the first time,
received Curry, Root and Schuelen's discovery responses
which were attached to his copy of their brief in opposition
to his motion to compel. Thus, because Warner is now in
possession of these Defendants' discovery responses, his
motion to compel production of those responses is moot.
reply brief Warner proceeds to asserts various challenges to
the sufficiency or adequacy of the discovery responses he has
now received from Curry, Root and Schuelen. And he purports
to “renew” his motion to compel based on the
challenges he now identifies in his reply brief. But as
Warner knows, before he can seek a motion to compel
production of more complete discovery responses, he must
first attempt to confer with those Defendants in an effort to
resolve his challenges as required by Fed.R.Civ.P. 37(a)(1)
and L.R. 26.3(c)(1). Therefore, the Court cannot address
Warner's challenges raised in his reply brief.
regard to discovery responses he received from CBM Managed
Services, Warner's motion to compel asserts only that CBM
Managed Services “completely avoided all
interrogatories and did not produce a single document in
response to Plaintiff's request.” (Doc. 73 at 1.)
But Warner does not present an itemized discussion of
specific discovery requests he contends CBM Managed Services
failed to properly answer.
Warner's motion complains CBM Managed Services did not
sign its answers to interrogatories as required by
Fed.R.Civ.P. 33(a)(5). With regard to the signature, CBM
Managed Services responds by representing it will supplement
its interrogatory answers with a notarized signature from its
authorized representative, and will provide it to Warner.
regard to the substance of Warner's motion to compel, CBM
Managed Services complains, through its counsel's
representations in its brief, that Warner did not confer with
its counsel in an attempt to resolve the discovery disputes
raised in Warner's motion to compel as required by L.R.
26.3(c)(1). Specifically, it states its “counsel did
not receive a telephone call, facsimile, letter, email, nor
any other written or electronic communication from Plaintiff
regarding the motion [to compel].] (Doc. 78 at 2.) Therefore,
it requests the Court deny Warner's motion to compel.
motion to compel discovery must contain a certification
stating “that the movant has in good faith conferred or
attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without
court action.” Fed.R.Civ.P. 37(a)(1). Similarly, the
Local Rules of this Court require that the parties must
confer “concerning all disputed issues before the
motion is filed.” L.R. 26.3(c)(1). The Rule requires an
actual discussion between parties as “[t]he mere
sending of a written, electronic, or voicemail communication
does not satisfy this requirement. Rather, this requirement
can be satisfied only through direct dialogue and discussion
in a face to face meeting (whether in person or by electronic
means), in a telephone conversation, or in detailed,
comprehensive correspondence.” L.R. 26.3(c)(1).
motion Warner certifies that he attempted to confer with CBM
Managed Services through collect calls, but his calls were
not accepted. He also states he sent a letter to CBM Managed
Services on October 24, 2018, but that he did not receive a
response to the letter. (Doc. 73-1 at 37 of 38.) For
unexplained reasons, however, CBM Managed Services did not
receive Warner's letter.
the circumstances, in the interest of judicial economy and
the spirit of the “meet and confer” requirements,
the Court will require Warner and CBM Managed Services to
engage in actual discussions in a good faith attempt to
resolve Warner's complaints as to the alleged
inadequacies of CBM Managed Services' discovery responses
as required by L.R. 26.3(c)(1). In view of Warner's
incarceration, CBM Managed Services shall actively assist in
arranging this “meet and confer” discussion with
Local Rules provide that “[t]he court will deny any
discovery motion unless the parties have conferred concerning
all disputed issues before the motion is filed.” L.R.
26.3(c)(1). Therefore, the Court will deny Warner's
motion as to CBM Managed Services.
on the foregoing, IT IS HEREBY ORDERED that Warner's
motion to compel is DENIED subject to his right to renew the
motion following compliance with his obligation to confer
with any party who he believes has ...