Passera v. Global Values ( 2020 )


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  • Passera v. Global Values, No. 606-11-19 Wncv (Tomasi, J., June 2, 2020).
    [The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
    accompanying data included in the Vermont trial court opinion database is not guaranteed.]
    STATE OF VERMONT
    SUPERIOR COURT                                                                                          CIVIL DIVISION
    Washington Unit                                                                             Docket No. 606-11-19 Wncv
    Robert Passera,
    Plaintiff
    v.                                                                         DECISION ON MOTIONS
    Global Values, Inc.,
    Defendant
    In this case, Plaintiff brings various contract and tort claims against his
    former employer arising out of his termination. Defendant has counterclaimed
    raising its own series of contract and tort causes of action. Presently before the
    Court is: (a) Plaintiff’s motion for a protective order barring the deposition of
    another one of his former employers; and Defendant’s motion to compel requesting
    that Plaintiff withdraw any objections made to the deposition and take steps to
    facilitate the other former employer’s compliance with the subpoena.
    Prior to reaching the merits of these issues, Defendant points out that
    Plaintiff’s motion does not contain a certification of a good-faith attempt to resolve
    the dispute under Vt. R. Civ. P. 26(h). Defendant accompanies his request for a
    motion to compel with a Rule 26(h) certificate indicating that he sent an email
    concerning the issues to Plaintiff’s counsel and had received no response.
    In the Court’s view, neither party’s request for a discovery order properly
    complies with the letter and spirit of Rule 26(h). Typically, letters and even emails
    between counsel are insufficient to meet Rule 26(h)’s demand that counsel “confer”
    in an attempt to resolve or narrow the scope of any discovery dispute. Indeed, the
    Reporter’s notes to Rule 26 advise that there must be “consultation” between
    counsel concerning discovery differences.
    In the normal course, the Court expects that counsel will “converse, confer,
    compare views, consult and deliberate,” Augustine v. Adams, No. 95–2489–GTV,
    
    1997 WL 260016
    , at *2 (D. Kan. May 8, 1997) (internal quotation omitted), in
    advance of seeking discovery sanctions. See Tri-Star Pictures v. Unger, 
    171 F.R.D. 94
    , 99 (S.D.N.Y. 1997); Shuffle Master v. Progressive Games, 
    170 F.R.D. 166
    , 172 (D.
    Nev. 1966) (similarly interpreting analogous federal rules). Usually, one or even a
    few unproductive letters do not meet the requirement that counsel confer. See
    Wilbert v. Promotional Resources, No. 98-2370, 
    1999 WL 760524
    , at *2 (D. Kan.
    Sept. 21, 1999); Prescient Partners, LP v. Fieldcrest Cannon, Inc., No. 96 Civ. 7590,
    
    1998 WL 67672
    , at *3 (S.D.N.Y. Feb. 18, 1998) ) (conferring requires “live exchange
    of ideas and opinions” (internal quotation omitted)).1
    1 The unreported, three-Justice decision in Volvovitz v. High Ridge Owners Ass’n,
    No. 2007-272, 
    2008 WL 2811208
    , at *3 (Vt. Feb. 2008) (mem), is not to the contrary.
    There, the Court imposed sanctions under Rule 37 for a party’s failure to comply
    with a prior Court order concerning discovery. That order specifically advised the
    party that it could be subject to sanction, including dismissal, for failing to comply
    with the discovery order. This case is different because the movant is not seeking
    enforcement of an existing Court order concerning discovery. The Volvovitz Court
    also went on to suggest that the conferring between counsel may not be mandatory
    if that process would be futile. This Court declines to adopt such an exception, at
    least in this case. If a futility exception to Rule 26(h) exists, it is exceedingly
    narrow and has not been established on the facts presented here.
    2
    In this instance, Plaintiff’s filing does not contain any certification. While
    counsel for Defendant’s certification states that he sent one email to Plaintiff’s
    counsel, it does not reflect any substantive discussions or meetings between them
    concerning the instant dispute. Additionally, Plaintiff’s reply indicates that the
    motion to compel was filed with little time afforded for a response to that email. As
    a result, neither filing reflects the discussions of positions, concerns, and possible
    compromises that lie at the heart of Rule 26(h).
    Further, the Court notes that, despite an admonition that a proposed
    scheduling order be filed, none has been submitted.
    WHEREFORE, both motions are denied without prejudice for failure to
    comply with Rule 26(h). Counsel are expected to confer regarding these issues and
    work together to resolve or narrow them, if possible. If Court involvement is still
    needed, any Rule 26(h) certificate should describe those efforts.
    Further, counsel are also required to confer and submit a proposed discovery
    schedule to the Court. If they are unable to agree in whole or part, competing
    schedules may be submitted to the Court. Those steps should occur within 30 days.
    The Court is unlikely to resolve discovery disputes in the absence of such a
    scheduling order.
    Electronically signed on June 2, 2020, at 1:34 PM pursuant
    to V.R.E.F. 7(d).
    ________________________
    Timothy B. Tomasi
    Superior Court Judge
    3
    

Document Info

Docket Number: 606-11-19 Wncv

Filed Date: 6/2/2020

Precedential Status: Precedential

Modified Date: 7/31/2024