Thursday, November 01, 2018

Reasonable Efforts to Confer are More than Short Emails

Things continue to happen in the world. Here is one:

U.S. v. Great Neck Saw Manufacturers (18-144)

This is one of the rare discovery disputes that produced a written opinion from the Court of International Trade. The underlying case involves an effort to collect a $1 million penalty on approximately $307 thousand in unpaid duties. As per the usual course of action, the government served on defendant requests for production, interrogatories, and requests to admit. Citing the large number of entries, GNSM requested an extension to respond. Five days after the extended period, GNSM provided a response that did not address the entire request. In the response, GNSM noted the difficulty of gathering the information on approximately 6500 entry lines, the need for client confirmation, and its inability to produce some information. Four weeks later, the government inquired as to the status of the remaining request. After some additional production and additional expressions of effort by the defendant, the Government filed a motion to compel production.

The interesting question raised here is not whether the defendant failed to cooperate in discovery. Rather, the question on this motion to compel is whether the plaintiff sufficiently satisfied the requirement of CIT Rule 37 to confer with the defendant regarding its requests. This requirement is intended to keep this kind of dispute between the parties and prevent it from getting to the point of a motion to compel. And yet, here they are.

According to the Court:

Plaintiff would have the court believe that the Government did enough to satisfy its burden to confer via its exchange of emails. The difficulty for Plaintiff is that its emails are minimal in length. The requirement to confer is not met by email exchanges that are little more than perfunctory and simply restate Plaintiff’s demands that GNSM fulfill its discovery obligations. . . . Furthermore, “requesting or demanding compliance with the requests for discovery,” or “simply showing that the discovery in question was requested more than once” is not enough to satisfy Plaintiff’s duty to confer.

At the same time, defendant has not fully responded to the discovery requests and has not adequately stated its objections.

As a result, the Court denied plaintiff's motion without prejudice. That means the motion can be renewed at a later date. In the meantime, the Court also ordered the parties to meet in person to confer in an effort to resolve the dispute.

No comments: