“Meet and Confer” Was Transcribed

A recent decision states: “Subsequently, the parties filed a Joint Status Report, a transcript of their meet and confer session, and a letter update, which ultimately apprised the Court that the parties were unable to resolve their dispute.”  Lifestyle Realty, LLC v. Kirn, 2025 WL 2719984, at *2 (D. Md. Sept. 23, 2025)(emphasis added).

Lifestyle Realty is a comprehensive analysis of when the duty to preserve is triggered and the application of Fed.R.Civ.P. 37(e) in the context of a trade secrets dispute involving former employees and the intentional wiping of a company laptop after the duty to preserve had been triggered.  It importantly applies a “clear and convincing” standard on a sanctions motion.

It is no criticism of anyone – – and especially not the Court – – to say that the transcription issue received no more than a passing mention.  Presumably, it was by agreement.

At least one decision in this District ordered that “meet and confers” be transcribed. Felder: Part 1 of 4:  Court-Ordered Transcription of “Meet and Confer” Session (Aug. 13, 2024), citing Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024).  In that blog, I wrote that:

Court orders for recording of “meet and confer” sessions has a long pedigree, going back to at least 2008.  My first recollection of hearing about such an order came from a presentation by the late Hon. David J. Waxse:

When electronic discovery disputes get heated in his courtroom, Magistrate Judge David J. Waxse of the U.S. District Court in Kansas has a simple strategy: “If someone comes to me and says, ‘So and so is impossible to deal with and we can’t get a deal done,’ I tell them, ‘Well, videotape the next [discovery conference] and let me watch it to see what’s going on.’

“I’ve never had to watch one of those videotapes. Just the idea that I’ll be watching it seems to put them all on their best behavior and suddenly they have an agreement.”

J. Krause, Rockin’ Out the E-Law (abajournal.com)(July 1, 2008)(emphasis added); accord S. Nelson, et al., Judge Waxse on Reducing Combat in E-Discovery | Sensei Enterprises, Inc. (Mar. 30, 2010)(“lawyers are like particles in physics – they change when observed.”).

In that blog, I cited other decisions ordering recordation and also cited a decision in which a court denied a request to video record a conference, and I wrote: “I have often thought about – – and discussed – – bringing a court reporter to a meet-and-confer when I anticipated problems; however, I never did it and could see reasons for an opponent to successfully object to any such effort.  If recording by any means (audio, video, or court reporter) became routine, I suggest that it could chill and impede the negotiation process.  As such, I would not do so with prior court authorization.”

Unilateral demands to record a conference have been rejected. How Not to Negotiate an ESI Protocol? Say it is “Mandatory”; and, Demand That Discussions be Recorded (Mar. 26, 2025). In Wilbert v. Pyramid Healthcare, Inc., 2025 WL 873947 (W.D. Pa. Mar. 20, 2025), the court held that a unilateral demand that a meeting be recorded was an unreasonable precondition.

In this, as in many strategic decisions, I suggest that there is no right or wrong answer.  Attorneys need to be aware of every tool in the toolbox and make an informed decision whether to use a hammer or some alternative.