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Kennard v. Another Adventure Day Care, LLC

United States District Court, S.D. Georgia, Savannah Division

November 3, 2014



G.R. SMITH, Magistrate Judge.

Plaintiffs Sarah Kennard and Toni Pilcher, former employees of defendant Another Adventure Day Care, LLC (AADC), brought this Title VII case against AADC. Doc. 1. Pursuant to Fed.R.Civ.P. 45(d)(3), AADC moves to quash plaintiffs' non-party subpoena to AADC's bank, Wells Fargo Bank ("Wells Fargo"). Doc. 19. The dispute arises from the fact that AADC denies it was Kennard's employer, doc. 6, at 1, though one of AADC's principals used an AADC account (at Wells Fargo) to pay her to care for his mother. Doc. 19 at 1; doc. 20 at 1. Plaintiffs want the bank's AADC records going back two years so they can check for corporate veil-piercing activities, doc. 20 at 1-2, as well as whether AADC "has a practice of creating fraudulent employee records that is relevant to the instant case or has otherwise abused the corporate entity as it has done on Sarah Kennard's case." Id. at 3.

Disturbingly, however, AADC says this on page one of its motion:

Pursuant to S.D. Ga. LR 26.5 and Fed.R.Civ.P. 26(c), undersigned counsel certifies that she attempted to contact [plaintiffs' counsel, Gwendolyn Fortson] Waring... by telephone and email in order to resolve this dispute without involving the Court. However, according to her assistant, Ms. Waring will be unavailable until October 13, 2014, which is the date of production specified on the subpoena. Ms. Waring has not responded to email correspondence regarding this issue.

Doc. 19 at 1 n. 1.

A lawyer being "not available, " and who fails to respond to basic correspondence, is simply not a sufficient reason to violate the duty to confer, as underscored by Local Rule 26.5(c) ("[c]ounsel are reminded that Fed.R.Civ.P. (26)(c) and 37(a)(2) require a party seeking a protective order or moving to compel discovery to certify that a good faith effort has been made to resolve the dispute before coming to court."). As this Court emphasized in a recent Rule 45 case, "[t]hat rule is enforced." Hernandez v. Hendrix Produce, Inc., 2014 WL 953503 at * 1 (S.D. Ga. Mar. 10, 2014). And the conference must be meaningful. Hernandez v. Hendrix Produce, Inc., 297 F.R.D. 538, 540 (S.D.Ga. 2014.)[1]

Requiring meaningful consultation can lead to informal resolution and thus conservation of court resources.[2] Avera v. United Airlines, Inc., 465 F.App'x 855, 858-59 (11th Cir. 2012) (magistrate judge did not abuse his discretion in denying, without prejudice, plaintiff's motion to compel discovery where plaintiff had not sought to resolve his discovery dispute with defendant before filing the motion); In re Rhodes Companies, LLC, 475 B.R. 7332 742 (D.Nev.2012) (affirming bankruptcy court's denial of protective-order motion based on moving party's failure to include such certification, rejecting "futility" assertion); Jo Ann Howard & Associates, P.C. v. Cassity, 2012 WL 1247271, at *8 (E.D. Mo. Apr. 13, 2012) (rejecting compulsion request in part) because "the failure of the parties to communicate materially impeded their resolution of this matter." (emphasis added.)

Defendant AADC's motion to quash (doc. 19), then, is DENIED without prejudice to its right to renew it within 14 days of the date this Order is served, during which attorney Fortson shall be freely available, and both counsel shall meaningfully confer. Wells Fargo, meanwhile, is relieved of having to respond to the subpoena until the fifteenth day after this Order is served, and is further relieved if AADC timely renews its quash motion, after which it shall await further Court order.

Finally, the Court also DENIES (also without prejudice plaintiffs' just-filed quash motions (docs. 24, 25 & 26) for lack of the same "confer" certification. "Discovery, it must be remembered, should be a self-executing, extrajudicial exercise requiring at most infrequent court intervention[.]" Jackson v. Deen, 2012 WL 7198434 at * 1 (S.D. Ga. Dec. 3, 2012); Scruggs v. International Paper Co., 2012 WL 1899405 at *1 (S.D. Ga. May 24, 2012). The Court will not tolerate such a casual disregard of its rules, much less the ensuing waste of its resources.


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