United States District Court, D. Connecticut
ORDER ON DEFENDANT'S MOTION TO COMPEL PLAINTIFF
TO COMPLY WITH HER DISCOVERY OBLIGATIONS
CHARLES S. HAIGHT, JR., JUDGE.
an employment discrimination action. See Doc. 1.
Defendant Eurest Services, Inc., moves for an order to compel
Plaintiff Stacey Tyler to produce discovery. See
Doc. 15 at 1. Plaintiff has not opposed or otherwise
responded to this motion.
had a deadline of November 4, 2018, to produce responses to
the Initial Discovery Protocols. Doc. 15-1 ("Def.
Mem.") at 2 (citing Doc. 5). She was also supposed to
have responded by January 3, 2019, to Defendant's First
Set of Interrogatories and Requests for Production, served on
December 4, 2018. Def. Mem. at 2. Defendant represents that
Plaintiff has not produced either set of discovery responses
despite Defendant's numerous attempts to resolve the
delay. Id. at 2-3. At no time has Plaintiff sought
an extension of time from the Court to comply with her
discovery obligations. Id. at 3.
to Rule 37 of the Federal Rules of Procedure, if a party who
is served with discovery resists or objects to such
discovery, the serving party, "[o]n notice to other
parties and all affected persons, . . . may move for an order
compelling disclosure or discovery." Fed.R.Civ.P.
37(a)(1). "The motion must include a certification 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
District's Local Rules impose additional requirements:
No motion pursuant to Rules 26 through 37, Fed.R.Civ.P. shall
be filed unless counsel making the motion has conferred with
opposing counsel and discussed the discovery issues between
them in detail in a good faith effort to eliminate or reduce
the area of controversy, and to arrive at a mutually
satisfactory resolution. In the event the consultations of
counsel do not fully resolve the discovery issues, counsel
making a discovery motion shall file with the Court, as part
of the motion papers, an affidavit certifying that he or she
has conferred with counsel for the opposing party in an
effort in good faith to resolve by agreement the issues
raised by the motion without the intervention of the Court,
and has been unable to reach such an agreement . . . .
D. Conn. L. Civ. R. 37(a). Thus, this District requires the
movant, in person or by telephone, to "confer with
opposing counsel and must discuss discovery disputes in
detail and in good faith." Doe v. Mastoloni,
307 F.R.D. 305, 313 (D. Conn. 2015) (emphasis omitted).
"A certification from a movant that he has merely
attempted to meet and confer with opposing counsel does not
satisfy the requirements of the Local Rules."
the Local Rules also provide that "[f]ailure to submit a
memorandum in opposition to a motion may be deemed sufficient
cause to grant the motion, except where the pleadings provide
sufficient grounds to deny the motion." D. Conn. L. Civ.
R. 7(a)(2). See also McIntyre v. BF Capital Holding,
LLC, No. 3:14CV33 (RNC), 2016 WL 5219445, at *2 (D.
Conn. Sept. 20, 2016) (denying a motion to compel because
counsel did not sufficiently detail the good faith efforts to
confer with opposing counsel but noting that, "[u]nder
different circumstances," opposing counsel's failure
to respond to the motion "could have provided sufficient
cause to grant the motion").
counsel, Elizabeth R. McKenna, has filed a supporting
affidavit detailing her good faith efforts to obtain
discovery from Plaintiff. Doc. 16. Attorney McKenna sent an
email to Plaintiff's counsel on January 17, 2019-after
deadlines for both sets of discovery requests had
passed-inquiring about the status of Plaintiff's
discovery responses. Id. ¶ 7. Having received
no response, she followed up on January 22, 2019.
Id. ¶ 8. Opposing counsel again failed to
reply. Id. On February 13, 2019, McKenna sent a
third email to which Plaintiff's counsel responded that
he "anticipate[d] having responses out early next
week" and assured McKenna that a motion to compel would
not be necessary. Id. ¶¶ 9-10; Doc. 16-1
at 2. The week passed without any production or updates from
Plaintiff's counsel. Doc. 16 ¶ 11. Defendant has not
received a response to date, resulting in the instant motion
to compel. Def. Mem. at 3.
Defendant has not fulfilled the requirements of Local Rule
37(a) to confer in person or by telephone with opposing
counsel, the Court finds that there is sufficient cause to
grant Defendant's motion to compel. Defendant has
attempted in good faith to resolve the delays without
intervention by the Court, as demonstrated by counsel's
various emails since January 17, 2019. Opposing counsel's
reply to McKenna's email from February 13, 2019, also
shows that he was aware of (1) the missed deadlines, (2) the
still-present need for discovery, and (3) Defendant's
intention to file a motion to compel should he continue to
fail to provide discovery. See Doc. 16-1 at 2.
Plaintiff also has not provided a reason why she has not
fulfilled her discovery obligations. Based upon this
information, the Court can only conclude that any attempt by
Defendant to confer in person or by telephone with opposing
counsel in accordance with Local Rule 37(a) would be futile.
rulings within this District appear to allow movants to waive
the in-person or by-telephone conferral requirement in
certain circumstances as well. See McIntyre, 2016 WL
5219445, at *2 (implying failure to file opposition
memorandum would provide sufficient cause to grant motion to
compel if movant had provided more details regarding good
faith efforts); Care One Mgmt., LLC v. Connecticut,
No. 3:15-MC-00172 (CSH), 2017 WL 2662190, at *1 (D. Conn.
June 20, 2017) (granting motion to compel when counsel wrote
letters). Plaintiff's written acknowledgment of the need
to produce discovery and her failure to file a memorandum in
opposition to the instant motion to compel appears to qualify
as one of these circumstances.
counsel has not sought sanctions for Plaintiff's
non-responsiveness, but Plaintiff is warned that the Court
would favorably look upon a motion for reasonable expenses
incurred in making this motion by Defendant should Plaintiff
fail to comply with this Order.
foregoing reasons, Defendant's Motion to Compel, [Doc.
15], is GRANTED. Accordingly, this Court orders Plaintiff to
respond by April 5, 2019, to the (1) Initial
Discovery Protocols as required by this Court through an
Order issued on August 20, 2018, [Doc. 5], and (2)