We've posted twice recently on Magistrate Judge Tennyson's practices regarding how long the parties should meet-and-confer before bringing a discovery dispute. In the prior posts, the parties presented a single discovery dispute issue. The parties initially met-and-conferred for 12 minutes, and the Court sent them back to meet-and-confer further. The Court later OK'd the dispute after they spent a total of 31 minutes on the issue.
On Friday, the Court issued an order in another case giving some more insight into this meet-and-confer requirement. In Media Content Protection LLC v. Dell Technologies, Inc., C.A. No. 20-1240-CFC-EGT (D. Del.), the parties filed a motion to raise three discovery issues with the Court, including two related to discovery on "value drivers" for the accused products and sales of unaccused products, and a third on early 30(b)(6) notices:
1. Whether Lenovo must provide discovery responsive to Plaintiff’s Joint Interrogatory No. 14, which seeks discovery with respect to the actual or perceived value drivers for Lenovo’s accused products.
2. Whether Lenovo must provide discovery responsive to Plaintiff’s Joint Interrogatory No. 13 and Joint Request for Production Nos. 39–40, which seek discovery of information regarding the pricing and sales of unaccused Lenovo products, which MCP assert is to enable a value comparison of the accused products to such unaccused products.
3. Whether Plaintiff may serve notices of depositions pursuant to Fed. R. Civ. P. 30(b)(6) on Dell, HP, and Lenovo (the Customer Defendants) at this time on topics Plaintiff has identified to Dell, HP, and Lenovo.
They identified two meet-and-confers, a 15-20 minute call and a 30 minute call ("approximately"). Counsel for HP and Dell, who are relevant to the third issue, were only involved in the second, longer call.
The Court held that this amount of meeting-and-conferring was insufficient:
ORAL ORDER - IT IS HEREBY ORDERED that Plaintiff's Motion for Teleconference to Resolve Discovery Dispute (D.I. 91 in 20-1240-CFC-EGT, D.I. 127 in 20-1241-CFC-EGT, D.I. 114 in 20-1242-CFC-EGT) is DENIED without prejudice to renew. Given the number and character of the disputes raised in the motion, the Court is unconvinced that the parties have engaged in sufficiently thorough efforts to meet and confer. Spending "approximately" 45-50 minutes on three separate disputes (across several defendants) is not enough time for the parties to fully explain their positions, to meaningfully consider each other's positions and to adequately explore the possible resolutions. . . . Plaintiff may refile its motion if the parties are unable to reach a resolution after engaging in additional efforts to meet and confer in good faith (i.e., in person or by telephone). ORDERED by Judge Eleanor G. Tennyson on 2/7/2025.
Id., D.I. 92.
The Court also gave some guidance on the purpose of the requirement:
To be clear, the meet and confer process is not about reaching a threshold number of minutes (or calls) to get the Court to set a discovery conference. The purpose of it is to exhaust reasonable efforts to reach a resolution. Where, as here, there are multiple discovery disputes that involve a number of broad issues with room for reasonable parties to compromise, more is necessary.
Id.
In practice I suspect co-counsel and clients may still ask how many minutes the parties must to meet-and-confer in order to bring the dispute on the first shot, given the issues in dispute. I'm not sure there are enough data points to offer solid guidance on that—at least not yet.
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