While working as a judicial law clerk for three years in federal court in San Diego, part of my job was to prepare draft rulings on motions and to give out motion hearing dates. The process for obtaining a hearing date for discovery motions is more arduous than for other types of motions, as there are several prerequisites that attorneys must meet before the court will allow them to file. For example, the motion to compel must be timely (there are two relevant deadlines), the attorneys must have properly met and conferred, and the discovery issues must be suitable for resolution with a hearing (instead of, for example, an informal telephonic conference with the judge).
In light of the fact that I saw attorneys make the same mistakes over and over again when it came to filing discovery motions, it is clear that many attorneys are confused about what the requirements are in this district. Below are the top five mistakes attorneys make when attempting to file a motion to compel in federal court in San Diego, and most importantly, how to avoid them.
#5: Failing to read judges’ procedures and the CMC order
One of the biggest pitfalls for attorneys litigating a discovery dispute in the Southern District of California is the failure to read the judge’s procedures and the CMC order. Each magistrate judge is able to set up their own procedures for handling discovery disputes, and the procedures can be very different. Some judges require a telephonic meet and confer with both parties before anything can be filed, while others require a joint motion. Following the wrong procedure may later make your dispute untimely, and may require additional procedural hurdles to even entertain your dispute. Failing to read a judge’s procedures (of both the district judge and the magistrate judge) does not make a good impression upon the Court.
The Case Management Order is just as important as a judge’s procedure. Typically a discovery motion must at least be filed before the discovery cutoff date. Other judges require that a motion to compel be filed and heard by the discovery cutoff date. When proceeding before judges that require that motions be filed and heard before the discovery cutoff date, attorneys need to make sure that they call the court at least 28-days before that deadline. (Pursuant to Local Rule 7.1(e)(1) hearings on motions need to be set at least 28 days out.)
Still, other judges require that a motion to compel be filed, heard, and any discovery ordered as a result of a motion to compel be produced by the discovery cutoff date. For these judges, all discovery motions need to be filed long before the discovery cutoff date. Attorneys should check the CMC order carefully in each case to see which situation applies, thus dictating how far in advance of the discovery cutoff date they will need to call the court regarding the discovery dispute. It is prudent to read the assigned judges’ procedures and the Case Management Order before issuing discovery to ensure you provide yourself enough time to litigate any potential discovery dispute.
#4: Having an assistant call to get a hearing date
Unlike state court, the federal clerks, who are often experienced attorneys, prefer to communicate with attorneys rather than other firm staff. When calling the court to get a hearing date, attorneys should be prepared to discuss: (1) what they are seeking to compel and how many (e.g. six interrogatories and nine document requests); (2) whether the motion is timely (i.e. in relation to the discovery cutoff date and 30-day deadline — more on this later); and (3) whether the attorneys have properly met and conferred. Initial conversations with the court staff regarding discovery disputes are usually fairly in-depth, and assistants or paralegals are rarely informed enough to provide the court staff with the necessary information. Further, the judge’s law clerk will likely want to discuss with the attorney whether a full-blown motion to compel is necessary, or whether the discovery dispute could be handled with an informal conference with the judge. Accordingly, attorneys (not their staff) should be the one calling the judge’s chambers to discuss discovery disputes.
#3: Not properly meeting and conferring
The meet and confer process in the Southern District is guided by the local rules and is not a free-for-all. Many attorneys fail to properly meet and confer prior to calling the court to get a hearing date for a motion to compel. Under the Southern District of California’s Local Rule 26.1(a), if plaintiff’s counsel and defense counsel are in the same county, they need to meet and confer in person. If they are in different counties then they can meet and confer telephonically. Under no circumstances can attorneys meet and confer in writing (i.e. via e-mail or letter). Remember to check the local rules and the judges’ procedures to see if there are any other required procedures or declarations regarding the meet and confer process.
#2: Confusing the motions deadline with the discovery cutoff date
Confusing the motions deadline with the discovery cutoff date is the one mistake that I saw attorneys make time and time again – usually to unfortunate consequences. The CMC order that the judge issues will contain several deadlines. Among those deadlines will be the discovery cutoff date and the deadline for filing pretrial motions. For discovery motions, the discovery cutoff date is the operative deadline – not the deadline for filing pretrial motions. Many attorneys think that discovery motions qualify as pretrial motions and thus the pretrial motions deadline is the operative deadline; they don’t and it isn’t. The pretrial motions deadline is always after the discovery cutoff date, so confused attorneys sometimes unknowingly blow their deadline for filing a motion to compel.
#1: Forgetting about the 30-day deadline
Another relevant discovery deadline – which many, many attorneys overlook – is known as the “30-day deadline.” Many federal judges in this district require that attorneys bring a discovery motion within 30-days of the event giving rise to the discovery dispute, though some judges’ procedures have different dates. For written discovery, this is typically the date that written responses or documents are provided. For depositions, it is typically 30 days after the deposition. Meeting and conferring does not toll the 30-day deadline and for many judges neither does the production of supplemental responses. Once discovery responses are provided, attorneys have a very short timeline for bringing a motion to compel. If the responses are in any way deficient, attorneys need to move quickly. For most judges, the failure to comply with this rule will bar a party from being able to file a corresponding discovery motion. Again, all of the procedures relevant for your case can be found by reading the assigned judges’ procedures and the Case Management Order.