eDiscovery Case of the Week with Kelly Twigger

How Failing to Meet and Confer Effectively Can Lead to Sanctions

• Kelly Twigger • Season 1 • Episode 170

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Magistrate Judge Scott Hardy delivers a masterclass on what the meet-and-confer requirement really means in federal litigation—and the serious consequences of failing to cooperate in discovery.

In this riveting breakdown of Wilbert v. Pyramid Health, we explore how one attorney's "mandatory" approach to ediscovery backfired dramatically. When plaintiff's counsel served a 30-page "Mandatory ESI Plan" on opposing counsel and then allegedly created "egregious barriers" to meaningful discussion, the court didn't just deny his motion to compel—it ordered him to show cause why he shouldn't face sanctions.

The decision highlights a troubling trend judges call the "drive-by meet-and-confer," where attorneys go through the motions without actually engaging in good faith discussions. Judge Hardy leaves no room for interpretation: "The conferral obligation is not a bargaining chip to be offered in exchange for a concession on a disputed discovery process." This clear statement reminds practitioners that cooperation isn't optional—it's required by the rules.

For litigators handling electronically stored information, this case serves as both warning and guidebook. We explore why having internal ediscovery protocols is wise, but attempting to unilaterally impose them on opposing counsel is a recipe for disaster. The discussion includes practical takeaways for ensuring your discovery approach satisfies proportionality requirements while avoiding the pitfalls that led to potential sanctions here.

Whether you're crafting discovery requests or responding to them, this analysis will help you navigate the complex landscape of ediscovery cooperation with greater confidence and effectiveness. Subscribe to hear more insights on how to leverage ESI while staying within the boundaries courts expect.

Links mentioned in episode:

Wilbert v. Pyramind Healthcare, Inc.
Read the blog about this case- Minerva26 Assistant Blog
Minerva26 Website
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Thank you for tuning in to Case of the Week with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on ediscovery, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy. Join us next episode as we break down another important case shaping the future of ediscovery.

Kelly Twigger:

Hi and welcome to our Case of the Week segment of the podcast, where each week, we break down a recent decision in electronic discovery case law and talk about the practical impact for you and your clients and keep you up to date on your obligations with electronically stored information as evidence. If you're a litigator, legal professional or you love the power of ESI as much as I do, this is the place to be. My name is Kelly Twigger. I am the principal at ESI Attorneys, a law firm for information law and e-discovery, and the founder of Minerva 26, currently just rebranded from e-discovery assistant, where we take the insights from our practice and provide a strategic command center for you to leverage the power of ESI. Thanks so much for joining me today.

Kelly Twigger:

Now, this week's decision on our case of the week comes to us from the case of Wilbert versus Pyramid Health, and it's a lesson on what the meet and confer requirement of the federal rules really means. For more than a decade now, we have had discussions with judges and attorneys about the quote drive-by meet-and-confer, in which parties are not prepared to discuss the issues that are necessary, haven't learned what they need to know from their clients, and they show up in an adversarial manner that is in completely contrary to the entire purpose of the meet and confer. Hat tip to Dan Regard of IDC for identifying this decision for us during last week's legal week. Now this decision today is from United States Magistrate Judge Scott Hardy who, by the way, has the same name as my fabulous brother who, by the way, has the same name as my fabulous brother. And Judge Hardy obliterates counsel here for their behavior in conducting meet and confer sessions with defense counsel and then misrepresenting it to the court by way of a certificate attached to his motion to compel.

Kelly Twigger:

Let's dive in Now. The plaintiff here brought a complaint for pregnancy-based discrimination and harassment, culminating in her termination. According to the court, the parties have disagreed on how to handle the discovery of ESI throughout the matter. We are before the court here on a motion to compel that was filed by the plaintiff and by its counsel, joshua Ward. In what is never a good sign for the moving party on a motion to compel, the court began its ruling with an in-depth discussion of the various rules that require the parties to meet and confer prior to filing a motion. Starting with Rule 26's requirements of relevance and proportionality, the court then moved to Rule 401 on relevance, and then to Rule 37 governing disputes. The court then circled back to Rule 26's limitations on accessibility and duplicative discovery before diving into the requirement that the parties meet and confer in planning for discovery. As part of that specific discussion, the court noted that during the meet and confer the parties quote must discuss faith to agree on the proposed discovery plan and for submitting to the court a written report outlining the plan. That is all in accordance with Federal Rule of Civil Procedure 26F2. The discovery plan, according to the court here, must state the party's views and proposals on several topics delineated in Rule 26F, including issues about disclosure, discovery or preservation of electronically stored information, including the form or forms in which it must be produced. The court also notes that the rules empower the court to order the parties to meet and confer in person, which needs to be used much more often, in my opinion. The court then notes that Rule 37F allows the court to require a party or its attorney to pay the other party's reasonable expenses if the party or the attorney fails to participate in good faith in developing and submitting a proposed discovery plan under Rule 26. Now, if that doesn't set a stage for what's to come, I don't know what does?

Kelly Twigger:

The court then went on to explain how those requirements of the federal rules are furthered by local rules in the United States District Court for the Western District of Pennsylvania, where this matter is pending. Local Rule 2.6 from the Western District imposes a duty to meet and confer both at the Rule 26 Conference and following requests for ESI. Included in that requirement is counsel's obligation to confer with their client and quote, investigate their client's ESI systems to understand how such ESI is stored, how it can be or how it has been or can be preserved, accessed, retrieved and produced and any other issues to be discussed at the Rule 26F Conference. The court notes that the attorneys must also identify a person or persons with knowledge about their client's ESI, with the ability to facilitate, through counsel, preservation and discovery of ESI. Close quote In addition to those local court rules, magistrate Judge Hardy pointed to the presiding judicial officer's published practices and procedures regarding the parties to jointly contact chambers to schedule an informal status conference for discovery disputes. The court then stated that no discovery motions are to be filed until after the conference, except in the cases of emergency as certified by counsel. Cases of emergency as certified by counsel. Counsel is also required under the presiding judicial officer's practices and procedures to file a certification quote that the movement has discussed the matter with all other parties and to expressly indicate whether the opposing party consents to or opposes the motion and whether such party intends to file a response. Close quote Now.

Kelly Twigger:

Having laid out all of the applicable rules for counsel to follow, the court then turned to the facts of this case and plaintiff's compliance, or I should say lack of compliance, with them. As I mentioned at the outset, the parties could not agree on the scope or methodology for e-discovery in this case. On April 3rd 2024, counsel for plaintiff served 25 separate requests for production titled request for ESI search. Now, that's a new title for me and, interestingly, not what rule 34 contemplates, but I digress. In conjunction with those 25 RFPs, counsel served defendant with the Ward Firm ESI plan titled JP Ward and Associates LLC.

Kelly Twigger:

Mandatory Rule 26F2,3 ESI Discovery Plan for Use in Employment Law Cases. That plan was a 30-page document that allegedly outlined his law firm's standard procedures for the Rule 26F conference and subsequent proceedings. Now, the court absolutely loved the use of the word mandatory in the Ward Firm ESI plan, finding that it reinforced attorney Ward's intent to impose extensive ESI protocol requirements on opposing counsel in employment cases and that it far exceeded the scope and depth required by the district court's checklist for meet and confer, as well as its guidelines. The court also found that, in the court's estimation, the ward firm ESI plan frames certain conferral elements in an argumentative and non-negotiable manner, suggesting an unwillingness to modify it during the required conferral process. I have to wonder whether, in fact, this document was meant to be shared with opposing counsel and with the court. Probably not. The firm ESI plan required that defendants not be permitted to conduct their own collection, but instead be required to hire a third party vendor to do it. If you're raising your eyebrows, so am I, so am I.

Kelly Twigger:

That fact, combined with the sheer breadth of the requests and the inclusion of terms that were not related to plaintiff's claims and plaintiff's counsel's adamance on how quickly they should be complied with, all left the court with a less than positive view of counsel's actions. All of those issues were discussed at a case management conference at which the court expressed its disapproval of plaintiff's counsel's tactics and directed counsel to confirm meaningfully on the issues by issuing an order. The parties were not able to resolve the issues under that order and months later submitted a joint letter to the court, after which the court granted attorney ward leave to file this motion to compel. That order granting the leave to file was also accompanied by a certification of was required attorney ward to also accompany his motion with a certification of conferral and to include the specific factual basis for each claim, each discovery issue, supported by affidavits or declarations. Attorney Ward then filed the motion to compel, and that's what the ruling is on here Now. As you may have guessed by now, counsel's motion and supporting materials fell far short of what the court ordered. The motion did not include support for factual assertions or specify each discovery issue that was the subject of the motion, both of which the court had ordered.

Kelly Twigger:

The court first objected to the overly broad requests and scope of custodians asked for by plaintiffs and noted that, while defense counsel had attempted to confer with Ward, ward either ignored their overtures or imposed quote egregious barriers to doing so. According to the court, ward failed to explain the relevance for each of his proposed custodians and failed to meet his burden. As such, the court denied the motion to compel. The court also rejected Ward's insistence that defendants had run hit reports on all of his search terms before determining whether those search terms were relevant. The court noted that quote. Attorney Ward has chosen to ignore the court's observations in this regard and persists in his insistence that defendants expend the time, effort and resources to search the computers and phones of a wide swath of custodians relevant or not for a wide range of search terms relevant or not, and for an overly broad time period relevant or not relying instead on the apparent authority of his own ward firm, esi plan. Close quote.

Kelly Twigger:

In essence, and I really encourage you to read this opinion, the court found that counsel had failed to identify an appropriate time period and a scope of discovery that fit within the allegations of the complaint. Plaintiff's counsel had also defied the court's order regarding the scope of the matter. As a result, the court found that Ward's motion did not satisfy that burden under Rule 37, and, in denying the motion, issued this quote. The court is also of the view that Attorney Ward's self-proclaimed mandatory approach to ESI discovery in employment cases not only contravenes several provisions of the federal rules of civil procedure and this district court's local rules, but Attorney Wardards unilateral imposition of such ESI protocols in all such cases also defies the requirement that even relevant discovery must be proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the party's relative access to relevant information, the party's resources, the importance of the discovery in resolving the issues and whether the burden or expense of the proposed discovery outweighs its likely benefit. Citing federal rule of civil procedure 26B1, it is evident that in this case, attorney Ward has ignored his duty to refrain from discovery efforts that are unreasonable or unduly burdensome or expensive in the context of those proportionality factors. Close quote.

Kelly Twigger:

The court then turned to counsel's behavior, and that's never a good sign. The court took significant issue with Ward's behavior, including insisting on mandatory protocols, making disproportional discovery requests and then insisting that any objection proposed by defense counsel was a failure to confer and subsequently requiring that defense counsel hire an outside vendor to conduct collections. Now I know I've given you a lot of quotes, but this one from Magistrate Judge Hardy kind of says it all, and I want you to pay attention to this, because we've gotten away from the cooperation in e-discovery that is required to make it cost effective and meet everyone's needs. So pay attention to this quote the conferral obligation is not a bargaining chip to be offered in exchange for a concession on a disputed discovery process or requested item. Conferral is expected for all discovery planning and dispute resolution and is a precondition to seeking court intervention. A party might also not impose unreasonable conditions or barriers on their willingness to meet and confer.

Kelly Twigger:

Here defense counsel contends that attorney Ward insisted that he would only meet in person to confer if defense counsel acquiesced to his demand that such a meeting be recorded. Such obdurate behavior in this case lacks justification, defies the bounds of expected professional behavior and was seemingly deployed to harass defense counsel and thwart any meaningful and constructive attempts at resolving the party's disputes. Close quote as a result of Ward's behavior, defense counsel refused to meet in person under the proposed conditions and continued conferral efforts in writing. Under the proposed conditions and continued conferral efforts in writing. Despite all of this, ward affixed a certificate of meet and confer to his motion, as compelled by Rule 37A, and the court found that Attorney Ward's conduct did not satisfy his obligation to confer in good faith and ordered Ward to show cause why he and his law firm should not be sanctioned for one failing to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26F and all related court rules, and to misrepresenting to the court that he has satisfied his conferral obligations in good faith before filing the motion to compel as required by Rule 37.

Kelly Twigger:

All right, with all of that, what are our takeaways from today's decision? I love this decision because Magistrate Judge Hardy is holding plaintiff's counsel to the standard of cooperation that should be required of every party in order to facilitate discovery. There's a lot of debate about whether or not judges have the time and bandwidth at the federal and, in some cases, the state court levels to be able to manage counsel in terms of cooperation and proportionality in discovery issues. It's a problem, and what I would suggest is that more courts, like Judge Hardy does here, hold these parties to a standard so that they know, coming into his court, that he will hold them to the requirements of cooperation and proportionality in the federal rules of civil procedure. Now, there's no question here that the discovery of ESI is complex and it requires new processes and procedures than discovery in paper did before. Looking back, however, because I started practicing when we still had paper, I'm not sure that we couldn't have used more of these rules of paper, but that's another topic altogether. E-discovery requires cooperation, and the meet and confer process is where that cooperation takes place. We have to have it Now.

Kelly Twigger:

I do want to give kudos to the plaintiff's law firm for actually having guidance here in its plan on how to engage in discovery and the best way to get discovery for their clients in the type of law that they practice. I preach that every week. You need to know what your discovery obligations are for the type of law that you practice and the clients that you have. You don't need to be all seeing all of the time, stay up to date on what's happening, understand what the issues are and then learn them as you need to for your matters, but how you lay out that information in a guide is crucial. I'm going to guess that the firm here, as I mentioned earlier, never anticipated that the guide would be sent to opposing counsel or that it would end up in court. So the takeaway really is this Give your lawyers guidance on how to handle e-discovery, but make sure you train them effectively on how to use that guidance.

Kelly Twigger:

It doesn't look like that happened here, and the language and confrontational nature of the guidance from the firm did not play well with the court. It is no secret that defense counsel with more resources regularly try to run over plaintiff's counsel in discovery. But there is a middle ground to what occurred here. You can't fake knowing how to discuss e-discovery you just can't. And when you try, because you haven't taken the time to learn what you were doing, you may just end up having to show the court why you shouldn't be sanctioned.

Kelly Twigger:

Misrepresenting anything to a court is the quickest way to undermine your client's case. Judges are humans and you need the judge to trust your word can be relied on. We all know that once bitten, twice shy, and that applies in court as well. The adversarial nature of litigation needs to be tamped down to properly deal with e-discovery and to feel confident, stepping away from that adversarial position. You need to feel confident in how you deal with ESI. Blindly following a guide or a checklist from a court or a form someone gives you is not the same and it will cause you to miss positions for your client or end up like counsel did here.

Kelly Twigger:

Finally, know the rules of the court you are in. The Western District of Pennsylvania has local rules and Magistrate Judge Hardy pointed to the presiding office the presiding judge's chief case management order. When you have a case before a judge, the judge's local rules or whatever carries the day in your case should be sitting on your desk. I used to keep mine in a file folder by case sitting behind me so I could reach over and just grab them. Bookmark them on your browser, if that's the way you prefer to work. You need to be re-reviewing those rules regularly so you have them in your head as strategy. Plaintiffs Council didn't do that here.

Kelly Twigger:

Discovery is rule-driven and the complexity of e-discovery means that you have to know and leverage the rules and the case law in your strategy. Learn from the mistakes that plaintiffs counsel made here. Don't just blindly follow a guide. Know exactly what you need to know for purposes of your case. All right, that's our case of the week for this week.

Kelly Twigger:

We'll be moving to doing the case of the week every other week to be making room for other content on our newly branded Meet and Confer podcast. So be sure to tune in for our next episode, whether you're watching us via our blog, downloading it as a podcast on your favorite podcast platform or on social media. You can also find the back issues of Case of the Week on the favorite podcast platform and be sure to subscribe. Thanks so much. Have a great week. Thanks for joining me on the Case of the Week podcast Tune in next episode as I discuss a new decision in e-discovery case law and identify the issues you need to be paying attention to and how they can help you do better discovery for your clients and leverage the power of ESI. Be sure to subscribe and leave a review to help others discover the show and be kept in the know on all things electronic discovery. I'm Kelly Twigger. See you next time.

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