When 'Meet and Confer' Becomes Theater: How a Good Rule Has Evolved Into a Weapon

When I became a judge, I arrived believing that the legal system did not have to be complex, expensive or emotionally grinding. After serving on the bench for over 34 years, I joined a national law firm as a partner and went back to litigating complex commercial cases. To my dismay, what I discovered is that discovery in big, complicated cases frequently escalates into conflict and that the meet-and-confer process is easily weaponized. The meet-and-confer requirements, which were intended to reduce conflict and expense, are being used to make litigating these cases more costly, adversarial and stressful.   

Admittedly, like many district judges, I disliked discovery disputes and usually left them to magistrate judges to resolve. The disputes that reached me were a small fraction of what the parties were actually living through, so I was unaware of what the meet and confer had devolved into. As judges, we focus on motions, briefs and orders; we rarely hear about the meet-and-confer sessions with hourslong calls where oftentimes no one has authority to agree to anything. We don’t see deliberate slow-walking, manufactured impasses or the strategic use of the process as leverage.

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