Nos. Civ. 96-2123 RCL, Civ. 97-1288 RCL | D.D.C. | Apr 21, 1999
MEMORANDUM OPINION
On February 12, 1999, plaintiffs filed their Motion [620] to Compel Further Deposition Testimony and Further Production of Documents from Thomas F. McLarty, III and for Sanctions. On April 16, 1999, plaintiffs withdrew this motion because “[c]ounsel for McLarty has since indicated that they are willing to meet with [plaintiffs’ counsel to try to resolve the issues set forth in [plaintiffs’ motion.” Plaintiffs’ Notice of Withdrawal at 1. Therefore, Plaintiffs’ Motion [620] to Compel Further Deposition Testimony and Further Production of Documents from Thomas F. McLarty, III and for Sanctions shall be considered withdrawn.
However, the court must note that plaintiffs’ motion to compel is yet another example of plaintiffs’ counsel’s disregard of the local rules of this court, specifically Local Rule 108(m). Rule 108(m) of the Local Rules of the United States District Court for the District of Columbia states as follows:
(m) Duty of Counsel to Confer on Nondis-positive Motions
Before filing any nondispositive motion in a civil action, counsel shall discuss the anticipated motion with opposing counsel, either in person or by telephone, in a good-faith effort to determine whether there is any opposition to the relief sought and, if there is opposition, to narrow the areas of disagreement. A party shall include in its motion a statement that the required discussion occurred, and a statement as to whether the motion is opposed.
Local Rule 108(m) (emphasis added). The uncontroverted facts pertaining to plaintiffs’ earlier motion establish that plaintiffs’ counsel did not met the requirements of this rule.
Plaintiffs’ “Local Rule 108(m) Certificate of Counsel” appended to their motion to compel reads:
On February 12, 1999, the undersigned counsel conferred by telephone with Mrs. Clinton’s counsel, Mr. Paul Gaffney, in regard to the present motion, and he indicated that they would oppose the relief sought by the Plaintiffs in this motion. Voicemail messages concerning the present motion were also left with Ms. Elizabeth Shapiro, EOP counsel, and Ms. Leslie Berger Kier-nan, counsel for Mr. McLarty, but undersigned counsel has not received a response. If one is received, Plaintiffs will supplement this certificate.
Plaintiffs’ Motion to Compel.
Non-party McCarty’s opposition, however, tells the full story. According to the declaration filed by Kiernan, counsel for nonparty McLarty, a phone message was left on her voice mail on Friday, February 12, 1999, at 5:14 p.m. Kiernan Decl. ¶ 7. That message consisted of plaintiffs’ counsel, Vincent Mulloy, asking Kiernan to call him “about a discovery motion or matter.” Id. According to the Clerk’s Office, Plaintiffs’ motion to compel was date-stamped 7:03 p.m. of the same day, a mere one hour and forty-nine minutes after the phone message was left with non-party McLarty’s counsel. Id.
The court notes that plaintiffs’ counsel have apparently misread (or never read) Local Rule 108(m). That rule unambiguously states that the movant “shall discuss the anticipated motion with opposing counsel ... in a good-faith effort to determine whether there is any opposition to the relief sought and, if there is opposition, to narrow the areas of disagreement.” Local Rule 108(m). The rule does not provide any exception that turns on whether opposing counsel was temporarily out of the office when it so happens that plaintiffs wish to file their motion. Moreover, Local Rule 108(m) would be meaningless if a party could, as plaintiffs’ counsel argue, file any nondispositive motion they chose without meeting and conferring, and later argue that a Local Rule 108(m) argument is moot simply because the motion is later opposed. The entire purpose of the meet-and-confer rule is to force litigants to attempt to resolve, or a least narrow, the disputed issues to prevent the unnecessary waste of time and effort on any given motion. The purpose of the rule is not to simply determine whether the motion will be opposed.
In short, the court notes that leaving a vague message late on a Friday afternoon with opposing counsel and filing the motion less than two hours later — without ever meeting and conferring, and without any legitimate reason for expediency — does not meet the requirements of Local Rule 108(m). The court has been forced to remind plaintiffs counsel about Local Rule 108(m) compliance at least three times before in this lawsuit.
The court does not intend to entertain a sanctions motion for the conduct described in this memorandum opinion or in previous similar opinions issued before this date. A sanctions motion may be proper, however, for future violations of Local Rule 108(m).
. It should be noted that plaintiffs’ motion to compel was filed before the court issued two of its three previous opinions on the topic of Local Rule 108(m). Nonetheless, plaintiffs were made aware of these same concerns before the filing of their motion to compel McLarty through the oppositions of the government and Larry Potts, in connection with plaintiffs' motion to compel Potts. Furthermore, plaintiffs' counsel's errors should have been clear from the text of Local Rule 108(m) without the need for any further explanation by the court.