Before filing most discovery motions in federal court, you have to actually talk to the other side and try to work it out. That is the heart of the meet and confer requirements in civil discovery: Federal Rule of Civil Procedure 37(a)(1) requires any party filing a motion to compel to certify that they “in good faith conferred or attempted to confer” with the opposing party to resolve the dispute without court involvement.1Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Skip it, or go through the motions, and your motion can be denied before the judge reaches the merits.
When the Requirement Applies
Two federal rules trigger the obligation directly. Rule 37(a)(1) covers motions to compel disclosure or discovery.1Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Rule 26(c)(1) imposes an identical certification before you move for a protective order.2Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Duty to Disclose; General Provisions Governing Discovery
Local rules frequently extend the requirement beyond those two triggers. Many federal districts demand conferral before motions to seal, motions involving electronically stored information, and even certain non-discovery motions. Some districts carve out narrow exceptions, such as temporary restraining orders or summary judgment. Check the local rules for your specific court, because they often go further than the federal rules do.
A separate rule, Rule 26(f), requires an early discovery-planning conference at least 21 days before the court’s scheduling conference.2Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Duty to Disclose; General Provisions Governing Discovery That is a different animal: it designs the discovery process at the outset rather than resolving a specific dispute later. Don’t confuse the two obligations, and don’t assume that holding the 26(f) conference satisfies the 37(a)(1) certification months later when a dispute actually arises.
What Good Faith Actually Requires
Courts look past whether you technically made contact and evaluate whether your effort was genuine. Quality matters more than quantity. Two perfunctory phone calls can fail the standard, while a single substantive conversation that covers every disputed issue may be enough.
A sincere effort means both sides openly discuss their positions, explain why they object to specific requests or why they need specific documents, and genuinely explore compromises. Repeating boilerplate objections or restating your position without engaging with the other side’s arguments is exactly the conduct judges flag as bad faith. Courts expect the same detail and candor you would put into a written brief.
Communication Methods That Count
Many courts have held that meet and confer demands personal consultation, in person or by telephone. Email-only exchanges are widely viewed as insufficient. Several federal districts, including the Southern District of California and the Eastern District of Texas, explicitly state in their local rules that written correspondence alone does not satisfy the requirement, no matter how many emails you send. One court ordered parties to “actually speak to each other” and meet face-to-face before it would entertain another discovery motion.
Video conferences generally qualify alongside phone calls and in-person meetings. The key distinction is interactive dialogue versus one-way communication. A single demand letter, however detailed, is not a conversation.
When the Other Side Won’t Engage
The obligation is to confer “or attempt to confer.” If opposing counsel ignores scheduling requests, you can still satisfy the requirement by documenting your attempts. Keep records of every phone call, voicemail, and email trying to schedule the conference. Courts distinguish between a party that refused to engage and a party that never tried. Your certification should explain exactly what you did and what response (or silence) you received.
How to Prepare
Walking in without preparation is nearly as bad as skipping the conference. A disorganized call that ends with “I’ll get back to you” accomplishes nothing and may not meet the good-faith standard.
Identify every discovery request still in dispute. For each one, match the specific interrogatory, document request, or admission request to the exact objection the other side raised. Organize these by set and number so both parties can reference the same items during the call.
Research the legal basis for your position on each item. If you’re challenging an objection, know the rule or case that undermines it. If you’re defending an objection, be prepared to explain why it’s legally justified rather than simply repeating it. Courts want more than “we object on relevance grounds.” They want specifics on why a request seeks irrelevant material or imposes an undue burden.
Compile your analysis into a written meet-and-confer letter and send it before the conference. The letter should list every disputed request, the objection, your position, and a proposed resolution. Sending it in advance gives the other side time to prepare a meaningful response and creates a paper trail showing your good-faith effort. Some jurisdictions also require a formal “separate statement” filed alongside any discovery motion; where that applies, draft it in parallel so you aren’t scrambling if the dispute doesn’t resolve.
Conducting the Conference
Schedule with reasonable notice and share a written agenda in advance. Both sides should know exactly which items are on the table before the call starts. Ambushing opposing counsel with new issues they haven’t researched is a common way to derail the process and can undermine your own good-faith certification.
Work through each disputed item methodically. Present your position, listen to the response, and explore whether narrowing the scope of a request or adjusting a production timeline would resolve the issue. Where you reach agreement, confirm the specific terms out loud and note them. Where you reach an impasse, make sure both sides clearly state their final position so the remaining issues for the court are well defined.
Take detailed contemporaneous notes. Record the date, start and end time, who participated, which items were resolved and on what terms, and which items remain disputed with each side’s stated reason. These notes become the backbone of your court filing. Vague or conclusory descriptions of the conference draw skepticism; specific details from your notes make the difference between a certification that satisfies the requirement and one that doesn’t.
Professionalism matters beyond courtesy. Threatening, bullying, or deliberately wasting time during a meet and confer can draw sanctions independent of the underlying discovery dispute. Courts have sanctioned attorneys for conduct as extreme as throwing objects at opposing counsel during a discovery-related proceeding, and for using offensive language in related filings.
Covering Electronically Stored Information
ESI deserves separate attention because it generates disputes that courts now expect parties to resolve outside the courtroom. Several technical topics should be worked out during conferral:
- Custodians and systems: which employees’ files will be searched, and which enterprise systems (email servers, collaboration platforms, databases) contain relevant data.
- Search methods: what keyword searches, date ranges, or other filtering techniques will identify responsive documents.
- Production format: whether documents will be produced as PDFs, native files, or TIFF images, and whether the format preserves searchability. Producing a searchable spreadsheet as a flat image destroys its utility.
- Metadata: how much metadata (dates, authors, file paths) will accompany each produced document, and which specific fields will be included.
- Preservation scope: what date ranges and data sources are subject to preservation obligations, and what litigation-hold procedures each side has in place.
Failing to address these issues almost guarantees a later fight. A producing party that dumps thousands of unsearchable image files without metadata forces a motion to compel proper production. A requesting party that never specifies a preferred format loses leverage to complain about what arrives. Getting ESI protocols in writing early, ideally as a stipulated ESI agreement, avoids both problems.
The Certification You File
If conferral doesn’t fully resolve the dispute, the moving party files a discovery motion with a certification describing the conferral effort.1Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions The federal rules don’t prescribe a format, but specificity helps. Include the date and time of the conference, how long it lasted, who participated, whether it was by phone or in person, what issues were resolved, and what remains in dispute. Many local rules explicitly require these details, and even where they don’t, vague certifications invite skepticism.
The certification should also explain your position on each unresolved issue and summarize the other side’s stated reason for refusing. That gives the judge an immediate picture of where the real disagreement lies. A certification saying only that “the parties met and conferred but were unable to resolve the dispute” tells the court nothing and may be treated as insufficient.
What Happens If You Skip It
The most common consequence is simple: the court denies your motion without reaching the merits. You lose the time and money spent preparing the motion and start over.
The money stakes go further. When a motion to compel is granted, the court must generally order the losing party to pay the movant’s reasonable expenses, including attorney’s fees. But that expense-shifting does not apply if the movant filed “before attempting in good faith to obtain the disclosure or discovery without court action.”1Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Skipping the meet and confer forfeits your right to recover costs even on a winning motion.
The flip side applies too. When a motion is denied, the court must order the movant to pay the opposing party’s reasonable expenses unless the motion was substantially justified.1Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions A weak motion after a sham conference can mean paying both your own fees and the other side’s.
For a pattern of discovery misconduct, courts have broader tools. Rule 37(b)(2) sanctions for disobeying a discovery order can include treating disputed facts as established against the non-compliant party, barring evidence at trial, striking pleadings, or entering default judgment or dismissal.1Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Case-terminating sanctions are rare and almost never flow from a single failed meet and confer. They emerge from a course of conduct in which a party repeatedly refuses to participate meaningfully and forces the opposing side to litigate every routine request. The meet-and-confer record is often the first evidence courts examine when deciding whether that pattern exists.