Have You Ever Experienced "Premature Discovery Dispute" Syndrome?

I'm not ashamed to admit that I have.

What can I say, sometimes a person gets excited!

(It's not where you start, it's where you end.)

The first step, however, is to acknowledge you may have a problem, like our friend the witty Magistrate Judge Goodman does here:

Some discovery motions are brought to the Court too early. The discovery disputes at issue here fit into that category. As musically noted by well-known singer-songwriter Tom Petty, “the waiting is the hardest part.”2

I really love footnote 2, this is why Judge Goodman's orders are such fun:

The lyric is from the song “The Waiting,” the lead single from Tom Petty and the Heartbreakers’ album Hard Promises, released in 1981. Although now 30 years old, the song is still used in popular culture. It was featured in at least one promotional spot for the fifth season of the television situation comedy “The Office” and is used at Philadelphia Flyers home games (when officials are reviewing a play). http://en.wikipedia.org/wiki/The_ Waiting_(song) (last visited 5/16/2011). See also http://www.lyricstime.com/tom-petty-the-waiting-lyrics (last visited 5/16/2011).

Can you imagine being Judge Goodman's clerk on this matter:

"Quick, I need you to research recent cultural references to an old Tom Petty song.  What?  Ok, Tom Petty was a singer a long time ago.  You mean they didn't teach you this in law school?  Welcome to my world."

Judge, you are welcome to guest blog here anytime.

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.

Magistrate Judge Goodman Cites Justice Scalia on Civility!

 Sanctions on Admissions
 
I'm beginning to appreciate Magistrate Judge Goodman's orders.

They have a certain directness to them, and his holdings are clearly expressed and supported by both logic and common sense.

This one dealing with sanctions for inaccurate responses to requests for admissions is a good example.

Although I do think there can be circumstances pre-trial where, akin to an sj ruling, a response can be deemed so false or inaccurate as to be sanctionable, for the most part I agree with the Judge's holding that this is reserved under Rule 37 for after trial or an adjudication of the disputed facts.

He throws in a Napoleon reference, also good.

Finally, I was right with the Judge up until the very last part of this quote:

In this spirited litigation, both sides have strongly pressed their positions at every junction and neither side has shown great willingness to make concessions, even on what are usually considered professional courtesies, such as accommodating colleagues’ deadline and scheduling issues. As a general matter, allegations of bad faith against opposing counsel, in addition to being in poor taste, are not helpful in aiding the Court’s adjudication of disputed issues. See ANTONIN SCALIA & BRYAN A. GARNER, MAKING YOUR CASE, THE ART OF PERSUADING JUDGES 34-35 (2008) (“Cultivate a tone of civility, showing that you are not blinded by passion. Don’t accuse opposing counsel of chicanery or bad faith, even if there is some evidence of it. . . . ‘An attack on opposing counsel undercuts the persuasive force of any legal argument. The practice is uncalled for, unpleasant, and ineffective.’”) (quoting Morey L. Sear, Briefing in the United States District Court for the Eastern District of Louisiana, 70 TUL. L. REV. 207, 224 (1995)).

Hold on -- Justice Scalia instructing on civility?

Guess there's a first for everything.

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......