Federal Judiciary

Big changes to certificates of conferences

By Michael Smith

On March 19, Chief Judge Heartfield signed General Order 08-05, which makes minor modifications to the rules for motions for leave to file and motions for leave to exceed page limitations, but significant changes to to certificate of conference requirement.
Motions for Leave to File - motions for leave to file (excluding motions to exceed page limits) the motion must still be "accompanied" by the document, but the document is to be filed separately.  On motions for leave to file something in excess of the page limits, file the oversize document, then file the motion for leave.  Previously both motions required that motions for leave be file "accompanied by" the document sought to be filed.  The "accompanied" language is still present in the first rule, but was deleted from the second - regardless, the motions for leave and the substantive documents are to be filed separately, and on page limits, a specific order (document, then motion) is required.  In other words, don't file the proposed documents as exhibits to the motions for leave any longer.
Certificates of Conference - the rule on these motions went from one sentence and a list of motions excluded from the requirement to approximately two pages of single-spaced  text.  While the rule is phrased in terms of a procedural and a substantive meet and confer requirement, and a certificate of conference requirement, I'll put it in an outline (or checklist) that may be easier to follow, since an "unreasonable" failure to comply with the meet and confer portion of the rule is grounds for disciplinary action.  Here's what the rule says, in outline form:

With the exception of (a) some enumerated motions, and (b) when the non-movant has acted in bad faith by failing to meet and confer, any motion filed must contain a certificate of conference.  While what it must state is slightly different, here's what it requires (additional requirements for discovery motions are italicized):
(1) a statement that counsel has complied with the meet and confer requirement in Local Rule CV-7(h), which consists of:
    (a) a personal conference either by phone or in person between an attorney for the movant and an attorney for the nonmovant
    (b) in discovery motions the attorney requirement is lead trial counsel and local counsel for both sides
    (c) in the personal conference, the participants must give each other the opportunity to express
his or her views concerning the disputes.
    (d) the participants must also compare views and have a discussion in an attempt to resolve their differing views before coming to court. Such discussion requires a sincere effort in which the participants
        (1) present the merits of their respective positions and
        (2) meaningfully assess the relative strengths of each position.
    (e) in discovery-related matters, the discussion shall consider, among other things:
        (1) whether and to what extent the requested material would be admissible in a trial or is reasonably calculated to lead to the discovery of admissible evidence;
        (2) the burden and costs imposed on the responding party;
        (3) the possibility of cost-shifting or sharing; and
        (4) the expectations of the court in ensuring that parties fully cooperate in discovery of relevant information.
    (f) the participants must meet and confer in good faith, and have concluded, in good faith that the discussions have conclusively ended in an impasse, leaving an open issue for the court to resolve.  "Good faith" requires:
        (1) honesty in one?s purpose to discuss meaningfully the dispute
       (2) freedom from intention to defraud or abuse the discovery process, and
       (3) faithfulness to one?s obligation to secure information without court intervention.
Note: "Good faith" may not be shown by correspondence, emails, and facsimile transmissions, however such materials may be used to show bad faith of the author.
(2) whether the motion is opposed or unopposed. (Since any motion with a certificate is almost by definition opposed, the requirements continue below).
(3) a statement signed by movant's attorney (whether this is a separate signature requirement from the certificate itself is not stated) that:
    (a)  the personal conference or conferences required by this rule have been conducted or were attempted (this seems to be the same thing as #1)
    (b) the date and manner of such conference(s) or attempts,
    (c) the names of the participants in the conference(s)
    (d) an explanation of why no agreement could be reached, and 
    (e) a statement that discussions have conclusively ended in an impasse, leaving an open issue for the court to resolve.
(4) in discovery-related motions, the Certificate of Conference shall be signed by
    (a) the lead trial counsel and
    (b) any local counsel.
(5)  In situations involving an unreasonable failure to meet and confer, the movant shall set forth in the Certificate of Conference the facts believed to constitute bad faith.

Full post as published by Eastern District of Texas Federal Court Practice on March 28, 2008 (boomark / email).