No Need to Meet and Confer Before Motion to Quash Subpoena in District of AZ

In Walker v. AIU Ins. Co., 2024 WL 4607473 (D. Ariz. Oct. 29, 2024), Plaintiff Walker served a subpoena duces tecum on non-party JBHH, which had represented defendant AIU in workers’ compensation proceedings involving Mr. Walker. The subpoena requested a complete copy of the file in Mr. Walker’s case.  JBHH moved to quash the subpoena and also noted objections.

JBHH did not confer with Mr. Walker before filing its motion to quash.  Mr. Walker opposed in part on that basis.

The Walker court wrote:

As an initial matter, Plaintiff claims that JBHH did not attempt personal consultation with Plaintiff before filing this Motion, violating Local Rule 7.2(j)…. (citing L.R. 7.2(j)) (“Any discovery motion brought before the Court without personal consultation with the other party and a sincere effort to resolve the matter[, and without the inclusion of a certification that such effort was attempted,] may result in sanctions.”).

However, Local Rule 7.2(j)’s personal consultation requirement only applies to Parties to the case. Games 2U, Inc. v. Game Truck Licensing, LLC, No. MC-13-00053-PHX-GMS, 2013 WL 4046655, *2 (D. Ariz. Aug. 9, 2013) (“[T]he meet-and-confer obligation only attaches to discovery disputes between the Parties.”) (citation omitted). Thus, motions to oppose subpoenas served on non-parties are not subject to the personal cosultation [sic] obligation. Id. As such, the Court finds that JBHH, a non-party to this case, was not required to engage in personal consultation with Plaintiffs prior to filing its Motion, nor to attach a certification that such consultation was attempted. [emphasis added].

The court reviewed the merits of JBHH’s motion, and concluded that:  “These factors, in aggregate, weigh greatly toward quashal.”

Fed.R.Civ.P. 45(d)(3) governing motions to quash subpoenas does not contain a “meet and confer” prerequisite.  Nor does the “objections” provision of Rule 45(d)(2)(B)(i).

Where the drafters of the Federal Rules of Civil Procedure intended to require a pre-filing conference, they expressly did so.

For example, Fed.R.Civ.P. 37 (“Failure to Make Disclosures or to Cooperate in Discovery; Sanctions”) has a self-contained conferral requirement in subsection (a)(1) for motions to compel. It states: “On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Similarly, there is a conferral requirement in Fed.R.Civ.P. 37(d)(1)(B) for certain sanctions motions.

To the same effect, Fed.R.Civ.P. 26(c) relating to protective orders, states:  “The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.”

The omission of a “meet and confer” requirement in Rule 45 therefore seems to be by design.

In Maryland State courts, the conferral rule for discovery disputes is Md. Rule 2-431. It does not use the word “party” in connection with a conferral requirement:

A dispute pertaining to discovery need not be considered by the court unless the attorney seeking action by the court has filed a certificate describing the good faith attempts to discuss with the opposing attorney the resolution of the dispute and certifying that they are unable to reach agreement on the disputed issues. The certificate shall include the date, time, and circumstances of each discussion or attempted discussion.

In the District of Maryland, Local Rule 104.7 differs textually from the District of Arizona. It reads:

Counsel shall confer with one another concerning a discovery dispute and make a reasonable effort to resolve the differences between them. The Court will not consider any discovery motion unless the moving party has filed a certificate reciting (a) the date, time, and place of the discovery conference, and the names of all persons participating therein, or (b) counsel’s attempts to hold such a conference without success; and (c) an itemization of the issues requiring resolution by the Court. A “reasonable effort” means more than sending an email or letter to the opposing party. It requires that the parties meet in person or by video or telephonic means for a reasonable period of time in a good faith effort to resolve the disputed matter. [emphasis added].

And, District of Maryland Local Rule 104.8.b states:

Counsel are encouraged to confer with one another before or immediately after a motion to compel is served. If they are unable to resolve their disputes, counsel must hold the conference required by L.R. 104.7 after serving upon one another all of the documents relating to the motion to compel.

Even where it may not be mandated, a party seeking to quash a subpoena may find it beneficial to have a pre-filing meet and confer.  Especially if ESI is requested, cooperation is likely a separate requirement or expectation.