What Constitutes a Good Faith Meet-and-Confer Effort?

By Julie Brook, Esq., reprinted with permission from CEB.

Before filing a motion to compel discovery responses, the parties must engage in a “reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.) What constitutes a good faith meet-and-confer effort depends on a variety of factors.

There are several factors considered in whether the meet-and-confer effort is in good faith, including (Obregon v. Superior Court (1998) 67 Cal. App.4th 424, 431):

• Complexity of the case;
• History of the litigation;
• Nature of the interaction between counsel;
• Nature of the issues;
• Type and scope of discovery requested; and
• Prospects for success.

The more complex the issues, the more time and effort needs to be spent trying to resolve them. The court in Obregon explained that

In a larger, more complex discovery context, a greater effort at informal resolution may be warranted. In a simpler, or more narrowly focused case, a more modest effort may suffice.

The meet-and-confer effort should reflect the same level of persuasive effort as the motion itself, and should be conducted with the same level of professionalism as an oral argument before the court. If the moving party hasn’t given the responding party a chance to consider all the arguments made in the motion, the meet-and-confer effort will likely be considered lacking.

At a minimum, counsel should either meet or talk by telephone to attempt to work out the various issues. The best practice is to meet in person when the dispute concerns substantive issues that will take a significant amount of court time. If you can’t or won’t do that, at least make sure that your meet-and-confer letter offers more than a simple demand for further information. It should clearly state the nature of the deficiency, the supporting legal authority, and the specific information sought.

The court will be less inclined to resolve these complex issues if the parties gave only passing attention to them during the meet-and-confer process. In fact, if the court believes the parties gave short shrift to issues during their meet-and-confer effort, it may order the parties during the hearing to meet and confer in an empty jury room or the hallway and return when they’ve made an effort to resolve their differences.

Don’t underestimate the importance of the meet-and-confer requirement. Failure to comply can result in sanctions and will irritate your judge. For guidance on all aspects of discovery motions and potential sanctions, turn to CEB’s California Civil Discovery Practice, chapter 15.