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ORDER ON PENDING DISCOVERY

MOTIONS 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

VARSITY GOLD, INC., 

Plaintiff, 

v.

ERIC BIGHAM, individually; et al., 

Defendants. 

CASE NO. C06-509RSM 

ORDER ON PENDING DISCOVERY

MOTIONS

This matter is before the Court for consideration of two discovery motions filed by defendants: a

motion for a protective order (Dkt. # 62), and a motion to compel (Dkt. # 66). Having reviewed both

motions, the responses and replies, the Court deems oral argument unnecessary, and now finds and rules

as set forth below.

I. Motion for a Protective Order

Defendants filed this motion on November 15, 2006, properly noting it for November 28, 2006,

as a “seven-day” motion under Local Rule CR 7(d)(2)(D). As a threshold matter, defendants assert that

plaintiff’s opposition, filed November 24, 2006, was untimely and should not be considered. Pursuant to

the local rule, plaintiff’s response was due three days before the noting date. As this time period is less

than eleven days, under F.R.Civ.Proc. 6(a), only “judicial” days are counted, excluding weekends and

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ORDER ON PENDING DISCOVERY

MOTIONS 2

holidays. Counting back three judicial days from Tuesday, November 28 would make the opposition due

the previous Thursday, November 23. As this day was itself a holiday, defendants contend that it should

be excluded from the “three-day” computation, making the response due the previous day, on

Wednesday,November 22. However, this interpretation conflicts with the earlier directive in Rule 6 that

when a due date for a response falls upon a day that the courthouse is closed, the response is due the

following day, which would be Friday, November 24. 

Defendants contend that interpreting the rule in this way would unfairly deprive them of the time

for filing a reply. However, defendants as the moving party originally chose the noting date for their

motion, and could have anticipated this result. Had defendants believed they were prejudiced, they could

have requested an additional day to file a reply. This Court has consistently followed the rule that when a

due date falls on a holiday, the filing date is extended to the next judicial day, not a previous one. The

Court has also, upon request, routinely granted additional time for filing a reply when the response time

was reduced by application of the rule. Defendants did not request additional time of the Court, and it

appears that they were not prejudiced in their ability to file a reply. Their request that the Court find

plaintiff’s opposition untimely is therefore denied.

Turning to the motion for a protective order itself, the Court finds that defendants have failed to

meet the certification requirement of Rule 26(c), pursuant to which this motion for a protective order has

been brought. The relevant section states that such motion must be “accompanied by 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.” F.R.Civ.Proc. 26(c). The “good faith” aspect of defendants’

attempt to confer shall be addressed below, in relation to defendants’ motion to compel. As to the

motion for a protective order, even without reaching the question of good faith, the Court finds that

defendants did not confer at all with respect to the subject matter of the dispute. 

Defendants’ certification statement is that “[o]n Tuesday afternoon, November 14th, the Bighams

conferred with Varsity Gold counsel and were unable to resolve the issue here.” Motion for Protective

Order, Dkt. # 62, p. 6 (emphasis added). The copies of the electronic correspondence (“e-mails”)

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ORDER ON PENDING DISCOVERY

MOTIONS 3

between counsel, filed by both parties here, demonstrate that while defendants did request a Rule 37

discovery conference, the proposed subject of that conference was plaintiff’s interrogatory responses. 

See, Declaration of David Lowe, Dkt. # 79, Exhibit B (“with regards to your responses, I anticipate a CR

conference to address incomplete or completely absent responses. . . “) (“as to the Rule 37, it does not

appear premature at least with regards to interrogatory responses”); Exhibit D (“As your schedule

appears to prevent a prompt CR 37 conference with regards to your interrogatory responses, please

consider this email my attempt to confer with you . . . .”). Nowhere did defendants mention a request for

a protective order regarding their own document production as a basis for the Rule 37 conference (which,

as shown below, was not ever held).

Thus, defendants’ certification statement that they conferred with plaintiff on November 14th to

resolve the issues presented in the motion for a protective order is not correct. In the absence of a proper

showing of compliance with the Rule 26(c) certification requirement, defendants’ motion (Dkt. # 62) is

DENIED.

II. Motion to Compel

In this motion, defendants seek to compel full and complete responses to their first set of

interrogatories and requests for production. The Court upon review of the written correspondence

exchanged between counsel finds that it cannot reach the merits of this motion, because defendants have

failed to meet the Rule 37 certification requirement.

Rule 37 states, in relevant part, that a motion to compel “must include a certification that the

movant has in good faith conferred or attempted to confer with the person or party failing to make the

discovery in an effort to secure the information or material without court action.” F.R.Civ.P. 37(a)(2)(B)

(emphasis added). The companion local rule requires that such good faith conference must be either

face-to-face or by telephone. Local Rule CR 37(a)(2)(A). 

Defendants’ certification states that they “hav[e] made best efforts to confer with Varsity Gold

pursuant to Fed.Rule Civ.P. 37(a)(2)(B) and Local Rule 37(a)”. The copies of electronic

communications exchanged between counsel in the relevant time period demonstrate otherwise.

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Friday, November 10 was a federal holiday for Veterans’ Day, a fact that was noted later by

defense counsel in deferring his own production of documents until Monday, November 13. Dkt. # 86,

Exhibit F (“Accordingly, David, I will have to refuse your request to produce documents tomorrow. 

Regrets.”) 

ORDER ON PENDING DISCOVERY

MOTIONS 4

Defense counsel first mentioned scheduling a Rule 37 conference to address plaintiff’s discovery

responses on Tuesday, November 7, asking that it be set for Thursday, two days later. Declaration of

David Lowe, Dkt. # 86, Exhibit B. Within twenty minutes, opposing counsel David Lowe responded that

his schedule did not permit scheduling the conference during that same week. Id. Defense counsel Pat

Pearce wrote back three hours later, asking what time plaintiff’s counsel could schedule the conference

on the following Monday or Tuesday, November 13 or 14.1 Id. Mr. Lowe responded the following day

that he would have time available in the afternoon of Tuesday, November 14, and asked defense counsel

to advise him if he wished to schedule a conference at that time. Dkt. # 86, Exhibit C. Instead of

suggesting a time on Tuesday afternoon as offered, Mr. Pearce responded late that afternoon with the

following message:

As your schedule appears to prevent a prompt CR 37 conference with regards to your

interrogatory responses, please consider this email my attempt to confer with you in an 

effort to avoid having to secure the information through court action. As we are both 

unavailable Friday, I am providing this to you today, Wednesday the 8th, so that you 

may provide me with your responses to my concerns by the end of the day tomorrow, 

Thursday the 9th. This should be enough time for you to respond and any further delay 

would seem unnecessary and dilatory. 

Dkt. # 86, Exhibit D. This e-mail gave opposing counsel only twenty-four hours to respond. Mr. Lowe

did respond with a reminder that Rule 37 requires a good faith in-person or telephonic conference. Id. 

The same message reminded Mr. Pearce that a time had been proposed for a conference on the following

Tuesday afternoon, but he had refused to respond to the offer. Id. That evening, defense counsel sent

another message stating, “You are wrong on what CR 37 requires. I suggest you review the rule and

point me to the part that requires an in person or telephonic conference.” Id. The following day,

Thursday, defense counsel admitted his mistake on that point, and asked that counsel “give me your times

for Tuesday, preferably in the morning.” Id. However, defense counsel had already been advised that

opposing counsel David Lowe was unavailable (by telephone or e-mail) on Thursday and through the

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ORDER ON PENDING DISCOVERY

MOTIONS 5

long weekend. Defense counsel then began e-mailing Mr. Lowe’s co-counsel, asking that he conduct the

CR 37 conference in place of Mr. Lowe that same day. Id. Co-counsel responded that he was not

familiar with the discovery issues, and he believed it could wait until Tuesday. Id.

The following Monday, November 13, defense counsel e-mailed Mr. Lowe’s assistant Sarah Gist, 

asking to schedule the CR 37 conference on Tuesday at 11:30 or as close to that time as possible. Dkt. #

86, Exhibit G. Ms. Gist responded right away, saying that Mr. Lowe had a matter at 11:00 and it would

be better to schedule the conference for the afternoon. Dkt. # 86, Exhibit H. Defense counsel wrote

back and asked to schedule the conference at 10:30, saying that the afternoon “is not a good option”, but

without explaining why. Id. Ms. Gist responded that she needed to reach Mr. Lowe to schedule the

matter, and defense counsel responded that he strongly preferred to confer in the morning, but that, “[i]f

there are no possible times other than the afternoon, then let me know what times work then and I’ll see

if I can adjust my schedule.” Id. Late on Monday afternoon, Ms. Gist wrote back to say she had been

unable to reach Mr. Lowe but would firm up a time for the conference the following day. Defense

counsel then re-iterated his expectation that the conference would take place on Tuesday. Id.

Minutes later, Ms. Gist wrote that she had reached Mr. Lowe, and that he was available Tuesday

afternoon “between 3:00 and 4:30 to discuss both parties’ production.” She asked defense counsel to let

her know “if this timeframe will work for you as well.” Id. Defense counsel’s response states, in its

entirety, “Works for me, yes.” Id. Ms. Gist replied early the next morning, Tuesday: “Great. We will

wait for your call at 3:00 p.m.” Id. Defense counsel did not respond to controvert this expectation.

The parties agree that defense counsel did not call in at 3:00. Mr. Lowe attempted to call him to

initiate the conference at 3:10, but Mr. Pearce was not available. Mr. Lowe left a message that he was

awaiting a call. Dkt. # 86, ¶ 12. Mr. Lowe waited until 4:20 pm, and then took a conference call from

another client. He was on the telephone until 5:30 pm. Id. 

At 4:22 pm, defense counsel responded to Ms. Gist’s e-mail from that morning, saying that he did

not agree to call at 3:00; he agreed to call sometime between 3:00 and 4:30, and was now calling to

conduct the conference. Dkt. # 86, Exhibit I. His call to Mr. Lowe at 4:22 pm was met with a busy

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ORDER ON PENDING DISCOVERY

MOTIONS 6

signal. Defense counsel called and e-mailed several more times over the next few minutes, but Mr.

Lowe’s line was still busy. Id. Defense counsel also called Ms. Gist and discussed Mr. Lowe’s

availability with her; the tone of his call is described by her in her declaration. Declaration of Sarah Gist,

Dkt. # 87. Ms. Gist, on the phone and by e-mail at 4:54 pm, offered to re-schedule the conference for

Thursday, November 16, but defense counsel did not know if he wanted to reschedule. Id., ¶ 8; Dkt. #

86, Exhibit I. Later that evening, Mr. Lowe sent an e-mail to defense counsel, repeating the offer to reschedule the conference for Thursday morning. Defense counsel did not respond to that offer, and

instead filed this motion to compel on November 16, asserting the he had made a good faith effort to

meet and confer pursuant to Rule 37.

The Court has set forth the communications between counsel in detail, because defendants have

requested oral argument on this motion. The Court deems it unnecessary to consume additional time of

counsel and the Court in oral argument, because the e-mails speak for themselves. These e-mails, and the

accompanying declarations, demonstrate that: (1) both counsel agreed to conduct the Rule 37 conference

in the “timeframe” from 3:00 to 4:30 pm on Tuesday, November 14; (2) Ms. Gist advised defense

counsel at 9:03 that morning that they would expect his call at 3:00; (3) defense counsel did not respond

to Ms. Gist’s e-mail, did not call in at 3:00, was not in his office at 3:10 when Mr. Lowe called him, and

by his own declaration was not back in his office and ready to initiate the conference call until 4:21 pm; 

(4) Mr. Lowe was available to take the call from 3:00 until 4:20 pm; and (5) Mr. Lowe and his assistant

both offered to re-schedule the conference for Thursday morning but defense counsel did not respond to

either offer. 

Nowhere has defense counsel explained why he did not respond to the e-mail saying opposing

counsel would expect his call at 3:00. Nor has he explained why he was out of the office and unavailable

by telephone until 4:21 pm on Tuesday, at the very end of the agreed “timeframe”. Under these

circumstances, and in the context of the e-mail exchanges in which defense counsel asked for the

conference as early on Tuesday as possible, it was reasonable for Mr. Lowe to assume that the

conference would begin close to 3:00. Conversely, it was unreasonable for defense counsel to assume

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ORDER ON PENDING DISCOVERY

MOTIONS 7

that the agreement on a “timeframe” meant that the conference could begin at 4:21 and be concluded by

4:30. His assertion that opposing counsel unilaterally modified the agreed time frame for the conference

is wholly without basis. 

For these reasons, the Court finds that defense counsel did not make a good faith effort to meet

and confer prior to filing this motion to compel. Accordingly, the motion (Dkt. # 66) is DENIED

pursuant to F.R.Civ.P. 37(a)(2)(B) and Local Rule CR 37(a)(2)(A). 

III. Expenses and Sanctions

Pursuant to Rule 37, when a motion to compel is denied, the Court shall, after affording an

opportunity to be heard, require the moving party or attorney, or both, to pay to the opposing party the

reasonable expenses incurred in bring the motion, unless the Court finds that the bringing of the motion

was substantially justified, or other circumstances make an award of expenses unjust. F.R.Civ.Proc.

37(a)(4)(B). This provision applies to a motion for a protective order as well. F.R.Civ.Proc. 26(c). 

 Here, because the Court did not reach the merits of either motion, it cannot be determined

whether defendants were substantially justified in bringing them. The Court’s finding of no good faith

effort to meet and confer weighs in favor of a finding that the motions were brought prematurely, but is

not determinative as to justification. Accordingly, the Court directs the parties to file, within two weeks

of this date, supplemental briefing on the issues of justification and other factors which might make an

award of expenses unjust. Such supplemental memoranda shall be limited to twelve pages each, including

all attached declarations or other materials. 

Dated this 19th day of January, 2007.

A

RICARDO S. MARTINEZ

UNITED STATES DISTRICT JUDGE 

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