|F.R.Civ.P. 37. Failure to Make Disclosure or Cooperate in Discovery; Sanctions|
L.R.37-1 Pre-Filing Conference of Counsel.1 Prior to the filing of any motion relating to discovery pursuant to F.R.Civ.P. 26-37, counsel for the parties shall confer in a good faith effort to eliminate the necessity for hearing the motion or to eliminate as many of the disputes as possible. It shall be the responsibility of counsel for the moving party to arrange for this conference. If both counsel are located within the same county of the Central District, the conference shall take place in person at the office of the moving party’s counsel, unless the parties agree to meet someplace else. If both counsel are not located within the same county of the Central District, the conference may take place telephonically. Unless relieved by written order of the Court upon good cause shown, counsel for the opposing party shall confer with counsel for the moving party within ten (10) days after the moving party serves a letter requesting such conference. The moving party’s letter shall identify each issue and/or discovery request in dispute, shall state briefly with respect to each such issue/request the moving party’s position (and provide any legal authority which the moving party believes is dispositive of the dispute as to that issue/request), and specify the terms of the discovery order to be sought.
L.R. 37-2 Moving Papers . If counsel are unable to settle their differences, they shall formulate a written stipulation. The stipulation shall be filed and served with the notice of motion.
L.R. 37-2.1 Form of Joint Stipulation. The stipulation must be set forth in one document signed by both counsel. The stipulation shall contain all issues in dispute and, with respect to each such issue, the contentions and points and authorities of each party. The stipulation shall not refer the Court to any other documents. For example, if the sufficiency of an answer to an interrogatory is in issue, the stipulation shall contain, verbatim, both the interrogatory and the allegedly insufficient answer, followed by each party’s contentions as to that particular interrogatory, separately stated. If the allegations made in a prior filing are relevant, a copy of that prior filing should be attached as an exhibit. Exhibits to the stipulation may include declarations prepared in conformity with L.R. 7-7. The specification of the issues in dispute, and the parties’ contentions and points and authorities with respect to such issues, may be preceded by an introductory statement from each party, provided that no party’s introductory statement shall exceed three (3) pages in length. When a party states its contentions with respect to a particular issue, such party shall also state how it proposed to resolve the dispute over that issue at the conference of counsel.
Although the stipulation should present the disputed issues as concisely as the subject matter permits, the page limitation established by L.R. 11-6 does not apply to stipulations regarding discovery disputes. Any stipulation exceeding ten (10) pages in length, excluding exhibits, shall be accompanied by an indexed table of contents setting forth the headings or subheadings contained in the body thereof, but need not be accompanied by a table of authorities.
The title page of the stipulation must state the discovery cutoff date, the pretrial conference date, and the trial date. In addition, a copy of the order establishing the initial case schedule, as well as any amendments, must be attached to the stipulation or to a declaration filed in support of the motion.
L.R. 37-2.2 Preparation of Joint Stipulation.2 Following the conference ofcounsel, counsel for the moving party shall personally deliver, e-mail or fax to counsel for the opposing party the moving party’s portion of the stipulation, together with all declarations and exhibits to be offered in support of the moving party’s position. Unless the parties agree otherwise, within seven (7) days of receipt of the moving party’s papers, counsel for the opposing party shall personally deliver, e-mail, or fax to counsel for the moving party the opposing party’s portion of the stipulation, together with all declarations and exhibits to be offered in support of the opposing party’s position. After the opposing party’s papers are added to the stipulation by the moving party’s counsel, the stipulation shall be provided to opposing counsel, who shall sign it (electronically or otherwise) and return it to counsel for the moving party, no later than the end of the next business day, so that it can be filed with the notice of motion.
L.R. 37-2.3 Supplemental Memorandum . After the Joint Stipulation is filed, each party may file a supplemental memorandum of law not later than fourteen (14) days prior to the hearing date. Unless otherwise ordered by the Court, a supplemental memorandum shall not exceed five (5) pages in length. No other separate memorandum of points and authorities shall be filed by either party in connection with the motion.
L.R. 37-2.4 Failure to File Joint Stipulation . The Court will not consider any discovery motion in the absence of a joint stipulation or a declaration from counsel for the moving party establishing that opposing counsel (a) failed to confer in a timely manner in accordance with L.R. 37-1; (b) failed to provide the opposing party’s portion of the joint stipulation in a timely manner in accordance with L.R. 37-2.2; or (c) refused to sign and return the joint stipulation after the opposing party’s portion was added. If such declaration accompanies the motion, then L.R. 6-1, 7-9 and 7-10 apply.
L.R. 37-3 Hearing on Motion . The motion may be noticed to be heard on the particular judge’s regular Motion Day which shall be not earlier than twenty-one (21) days after the filing of the motion. Unless the Court in its discretion otherwise allows, no discovery motions shall be filed or heard on an ex parte basis, absent a showing of irreparable injury or prejudice not attributable to the lack of diligence of the moving party.
L.R. 37-4 Cooperation of Counsel - Sanctions . The failure of any counsel to comply with or cooperate in the foregoing procedures may result in the imposition of sanctions.
1(37-1 amended, effective 1/1/10)
2(37-2.2 amended, effective 4/1/08; amended, effective 1/1/10)