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A Lesson in Discovery

Madison v. Harford County, MD
No. MJG-10-197 (D. Md. 2010)

By Kevin M. Cox, Associate
Semmes, Bowen & Semmes (

This case was originally filed in Federal Court on January 26, 2010. Plaintiffs propounded interrogatories on March 17, 2010 against Defendant Jesse Bane (“Bane”). Having failed to answer the interrogatories, on July 22, 2010, Plaintiffs filed a motion to compel against Bane. Plaintiffs’ counsel filed with their motion what purported to be a Local Rule 104.7 certificate, stating in conclusory terms and without the particularly required by Local Rule 104.7 that they “in good faith conferred or attempted to confer with the Defendant Sheriff [sic] Banes’ counsel in an effort to obtain production of the documents requested . . . .” Bane’s opposition pointed out the deficiencies in the certificate and, in their reply, Plaintiffs alleged that their counsel “attempted to contact and coordinate discovery with Defendant’s counsel by contacting them at the phone numbers they provided,” which again failed to provide the detail required by Local Rule 104.7.

FED. R. CIV. P. 37(a)(1) requires that, prior to filing a motion to compel the disclosure or discovery, the moving party act in good faith to obtain the discovery without court intervention with the other party. Similarly, Local Rule 104.7(a)-(c) requires that a discovery motion will not be heard “unless the moving party has filed a certificate reciting (a) the date, time and place of the discovery conference, and the names of all persons participating therein, or (b) counsel’s attempts to hold such a conference without success; and (c) an itemization of the issues requiring resolution by the Court.” Here, Plaintiffs’ certificate clearly did not contain any of the details required by Local Rule 104.7. Moreover, Plaintiffs’ counsel only claims to have “attempted to contact" defense counsel. Case law has held that this is a far cry from confirming in good faith. Though the Court was not required to hear the motion, it chose to do so to resolve the discovery dispute and to provide future guidance of similar discovery disputes.

The Court made the following points as to discovery disputes. First, Plaintiffs should not initiate any discovery before a scheduling order is entered. Local Rule 104.4 states that “discovery should not commence . . . until a scheduling order is entered.” Second, FED. R. CIV. P. 26(d)(1) provides that “[a]party may not seek discovery from any source before the parties have conferred as required by Rule 26(f),” subject to certain exceptions which do not apply here. Thus, discovery efforts were premature and Plaintiffs’ motion did not comply with the Federal Rules of Civil Procedure or the Federal Court’s local rules.

Nonetheless, Plaintiffs made a discovery request, however improper, and, pursuant to FED. R. CIV. P. 34(b)(2)(A), Bane should have responded within thirty days after being served. Bane could have filed substantive answers, an objection, or filed a motion for a protective order. Any of these options would have been an appropriate response, but what clearly was not proper is what Bane did or, more accurately, failed to do. He failed to file any written response or motion for protective order, and he simply ignored the written discovery requests. This was improper.

The Court further noted that neither parties’ counsel complied with their obligation to cooperate with respect to planning and executing discovery or resolving discovery disputes. Had they done so, this dispute never would have reached the Court for resolution. Finally, the Court ruled that no discovery should take place regarding Plaintiff’s claims against Bane until after the Court has ruled on Bane’s motion to dismiss.

For the above reasons, United States Magistrate Judge, Paul W. Grimm, denied Plaintiffs’ motion to compel. Although Judge Grimm did not impose sanctions, he advised all counsel to read the Local Rules and Discovery Guidelines for the District of Maryland, paying particular attention to amended Guideline 1 and its cooperation requirements. He reminded the parties that no discovery may be taken until a scheduling order is in place. Once the court issues a scheduling order, the parties should confer regarding the timing of document production.