JOHN SEDWICK, District Judge
At docket 41, plaintiff Thomas Kyte moves to compel discovery pursuant to Federal Rule of Civil Procedure 37. Defendant Progressive Northwestern Insurance Company ("Progressive") opposes the motion. Oral argument has not been requested and would not assist the court.
II. BACKGROUND
This order adopts and incorporates the statement of facts and jurisdiction as contained in the court's order at docket 14.
III. STANDARD OF REVIEW
Discovery rules are liberally construed to effect the just, speedy, and inexpensive resolution of litigation. Discovery's scope is broad. The Federal Rules of Civil Procedure afford parties the right to "obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery. . . ." The rules further specify that "[t]he information sought need not be admissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Professor Wright instructs that "[t]he rules . . . permit the broadest scope of discovery and leave it to the enlightened discretion of the district court to decide what restrictions may be necessary in a particular case." The Ninth Circuit has emphasized that "wide access to relevant facts serves the integrity and fairness of the judicial process by promoting the search for truth."
8 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE, § 2001 at 44 (2d ed. 1994) ("WRIGHT").
FED. R. CIV. P. 27(b)(1).
Id.
WRIGHT, § 2036 at 488.
See Epstein v. MCA, Inc., 54 F.3d 1422, 1423 (9th Cir. 1995) (citation omitted).
IV. DISCUSSION
Plaintiff Thomas Kyte seeks an order compelling Progressive to comply with the disclosure requirements imposed by FED. R. Civ. P. 26(a) and to respond to interrogatories and requests for production propounded by Kyte. As a preliminary matter, a motion seeking compliance with the disclosure requirement requires certification that the movant has conferred or attempted to confer in good faith with the party from whom the information is sought to achieve compliance without court intervention. The same sort of certification is required for a motion seeking to compel discovery responses.
FED. R. CIV. P. 37(a)(2)(A).
FED. R. CIV. P. 37(a)(2)(B).
In support of his motion to compel, Kyte's lawyer certifies that she has in good faith conferred or attempted to confer with Progressive's counsel in an effort to obtain the disclosures and discovery without court action. Kyte's motion documents a series of correspondence between his attorney and Progressive's counsel, which Kyte argues is evidence of a good faith effort to resolve discovery disputes without the court's assistance. In response, Progressive argues that the correspondence does not demonstrate a good faith effort to resolve issues because Kyte's letters contain little more than Kyte's demands for discovery, and advance no explanation or argument why Progressive's previous responses were inadequate.
Docket 41 at 1.
Attached as Exhibits A-D to doc. 43 and as exhibits F-H to doc. 41. Neither party bothered to authenticate the letters with an affidavit as should have been done, but neither party has objected to the authenticity of the letters, so the court will consider them.
Doc. 43 at 1-3.
After reviewing the correspondence between the parties' attorneys, it appears that Progressive's argument has some merit. The first letter in the series, dated June 30, 2003, is from Kyte's attorney, Michaela Kelley Canterbury. The letter reads, in pertinent part: "We request you withdraw Affirmative Defenses Numbers 1, 2, 3, 5, 6, 7 and 8. Considering the disputed issues in this case we ask that you reconsider the redactions made based upon relevance." Notably absent is any argument or explanation of why Progressive should abandon its affirmative defenses, or why Progressive should reconsider its redactions. A second letter from Kyte's attorneys, dated December 10, 2003, reads in pertinent part:
Doc. 43, Ex. A.
Id.
Doc. 43, ex. B.
I ask that you review and respond to a letter sent on 6/30/03 requesting defendant withdraw affirmative defenses 1-3 and 5-8, review redactions based on relevance and. . . . I also request that you reconsider your objections to plaintiff's discovery requests.
Like the first letter, Kyte's second letter presents no reasons why Progressive should comply with Kyte's demands. Addressing this oversight in his response, Kyte argues that he provided ample explanation for his requests "by letter and other communication" to Progressive's attorneys, but produces no documentation to support his assertion, other than a letter sent to Progressive's counsel after the motion to compel had already been filed.
Doc. 44, ex. A.
Kyte's letter, attached as ex. A to doc. 44, is dated January 27, 2004. Kyte's motion to compel was filed on January 20, 2004.
Progressive's response to Kyte's second letter clearly indicates Progressive's reluctance to comply with Kyte's discovery requests absent some explanation or argument why it should do so. Regarding Kyte's demand that Progressive withdraw its affirmative defenses, Progressive's counsel states: "I will not. You have never stated any reason why I should, just that you want me to do so." Regarding Kyte's request that Progressive review its redactions, Progressive's counsel states: "I will not. You have never clearly stated why I should." Regarding Kyte's request that Progressive reconsider its objections to Kyte's discovery requests, Progressive's counsel states: "I will not reconsider the objections to your discovery requests, in the absence of you stating any reason why I should."
Attached as ex. C to doc. 43.
Id. at 1.
Id.
Id.
A final letter from Kyte, dated January 14, 2004, states "It's unfortunate we could not agree the [sic] matters of your client's affirmative defenses and discovery. I will file the appropriate motions."
Doc. 43, ex. D.
FED. R. CIV. P. 37(a)(2)(A) requires that the moving party in a discovery dispute must have attempted to confer in good faith in an effort to resolve the dispute prior to seeking the court's intervention. The Advisory Committee Notes to the 1993 amendment to Rule 37, which added the requirement to confer, indicate the language was added to require "litigants to seek to resolve discovery disputes by informal means before filing a motion with the court. This requirement is based on successful experience with similar local rules of court promulgated pursuant to Rule 83." A good faith attempt to resolve a dispute necessarily implies communication and some degree of negotiation between the parties. Simply issuing discovery demands, without explanation or argument, does not evince a good faith effort to resolve a dispute. Kyte was aware of Progressive's reluctance to consider his requests absent some explanation or argument, but failed to provide any explanation until after filing his motion to compel. While Kyte may correctly assert that he has now provided explanation and argument in support of his requests, at the time he filed his motion to compel, he could not. Because Kyte failed to make a good faith effort to resolve the present dispute before seeking the court's intervention, his motion to compel must be denied.
Advisory Committee Notes, published Federal Judicial Procedure and Rules (West 2002 rev. ed.) at p. 191.
V. CONCLUSION
For the foregoing reasons, Kyte's motion to compel at docket 41 is DENIED.