Failure to Completely Meet & Confer, and Citing a Non-Existent Transcript, Dooms Motion

Plaintiff filed an ex parte motion seeking an order requiring defendants to produce documents without redactions. The motion was denied without prejudice for failure to meet and confer, and failure to follow ordinary discovery procedures. Additionally, Plaintiff and Plaintiff’s counsel were ordered “to show cause as to why they should not be sanctioned for filing a discovery motion without meaningfully meeting and conferring and for presenting false information about a non-existent transcript.”  Sheikh v. Spinnaker Ins. Co., 2025 WL 3724530 (E.D. Cal. Dec. 23, 2025)(emphasis added).

FAILURE TO “MEET & CONFER”: A BEGINNING IS NOT ENOUGH

The failure to meet and confer arose out of Plaintiff’s challenge to redactions and withholdings that were disclosed on February 17, April 2, and June 30, 2025.  The court wrote: “Yet it appears that Plaintiff did not seek to address this issue with opposing counsel until December 10, 2025, through a conversation after Plaintiff’s deposition.”  Id. at *1.  That is roughly ten months from the first notice that Plaintiff had.

The next day, on December 11^th, Plaintiff’s counsel emailed one of several defense attorneys (Mr. Hayek, counsel for defendant Spinnaker) arguing that Defendant had waived privilege and stating that Plaintiff would be filing an ex parte application requesting production by December 29^th, unless by 11 a.m., the following day, Defendant made “a full commitment to provide all communications…..” Id.

The recipient defense counsel responded by email at 11 a.m., on December 12^th.  Mr. Hayek suggested that Plaintiff should reach out to the other defense attorneys who were involved in that aspect of the litigation. Mr. Hayek copied all of them on his responsive email, and added: “Either I or my colleagues will review the cases you have cited in your email … and perform our own due diligence and get back to you once you identify … those redaction(s) Plaintiff believes are not well taken.”  He also wrote that Plaintiff had not referenced governing California law, nor had Plaintiff explained why an ex parte process, instead of normal discovery motions, was appropriate.  In short, and in my words, defense counsel timely and properly responded to Plaintiff’s demand.

That is where Plaintiff dropped the ball, according to the court.  The court wrote: “There is nothing in the record indicating that Plaintiff’s counsel attempted to further meet and confer with [Defendant] Spinnaker’s counsel on December 12.”  Instead of doing conferring, the court wrote:  “Plaintiff filed the Ex Parte Application at 1:38 p.m. that day.”  Id. at *2.

The Sheikh court held that Plaintiff did not fulfill the “meet and confer” requirement, writing:

While Plaintiff began the meet and confer process by generally identifying the contested issues with opposing counsel and following up with an email, she did not complete that process. In particular, she did not seek to further confer despite the commitment, in Mr. Hayek’s email of December 12, that Spinnaker would “review the cases you have cited in your email … and perform our own due diligence and get back to you once you identify … those redaction(s) Plaintiff believes are not well taken.” … Moreover, Plaintiff’s failure to engage with the issues raised in Mr. Hayek’s email of December 12 prevented the meet and confer from being meaningful. Plaintiff apparently did not seek to confer directly with Spinnaker’s attorneys who Mr. Hayek indicated were responsible for the contested productions; did not respond to the request to identify specific contested documents, redactions, and privilege logs; and did not respond to the issue of whether state or federal privilege law governs the dispute. Finally, Plaintiff did not meaningfully confer in-person, by phone, or by video—the brief discussion with Mr. Hayek at the end of Plaintiff’s deposition, without a prior communication to sharpen the issues of contention, did not suffice.

Id. at *2.

The purpose of the “meet and confer” requirement is to avoid needless litigation. Id. On the facts presented, the  court stated that the goal could have been achieved because defense counsel indicated a willingness to compromise.

The Sheikh court added: “While parties may at times need to seek discovery relief on an ex parte basis, that should occur only under exceptional circumstances.”  Id. at *3. That relief is not available to a party that has not been diligent. Id.

CITATION TO A NON-EXISTENT TRANSCRIPT

While “hallucinated” case citations due to misuse of artificial intelligence are not unusual,[1] citing a non-existent transcript is rare. The Sheikh court wrote:

Plaintiff’s counsel should also show cause as to why he should not be sanctioned for citing to a non-existent transcript. Plaintiff’s reply relies on a purported “December 2 hearing transcript” that “show[s] that Defense Counsel led the Court and Plaintiff’s Counsel to believe that he would be providing” dates for the Rule 30(b)(6) depositions at the end of the week of December 2. ECF No. 87 at 2. There is no such transcript. The docket entry to which Plaintiff refers here, ECF No. 82, is the Court’s own request for a transcript of the hearing held on April 24, 2025, and clearly marked as such. More concerning than the assertion that such a transcript exists is the assertion that a substantive fact—Spinnaker’s counsel’s purported position—is contained within that non-existent transcript. Under Rule 11(b)(3), an attorney who signs a legal document certifies that “the factual contents have evidentiary support[.]” If the Court determines that Rule 11(b) has been violated, “after notice and a reasonable opportunity to respond … the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.” Fed. R. Civ. P. 11(c)(1).

Id. at *4 (emphasis added). Plaintiff was ordered to respond within 14 days.

UPDATE: See Doug Austin, Multiple Fabricated Quotations from the Depositions in the Case (Jan. 6, 2026).

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[1] See, e.g., Doug Austin, AI Hallucination Cases: A Compiled List (Jun. 9, 2025), citing AI Hallucination Cases Database – Damien Charlotin (listing 712 cases).