Alaska Employment Law

Duty to confer typically requires face-to-face meeting 

In an excessive force case, Judge John Sedwick has resolved a number of discovery issues that commonly arise in civil litigation, including employment cases. 

Defendant’s discovery obligations: Sedwick granted the plaintiff’s motion to discover information about defendant’s insurance policies; other complaints, internal investigation reports, and lawsuits against the officer for excessive force; and training provided to the officer.  He rejected the defendant’s proposed protective order as unnecessarily restrictive (no reason to require plaintiff to file motion before using information supplied by defendant), but did require plaintiff to seal and mark as “confidential” certain material he might file in court, and to return all information after the close of litigation.  

Plaintiff’s discovery obligations: Sedwick granted the defendant’s motion to obtain more than five years (in fact, 15 years) of information about plaintiff’s employment and earnings capacity:

plaintiff [argues] that federal law limits this type of request to five years or less.  [Plaintiff] does not cite any legal authority for such a limitation, nor is this court aware of any.

Sedwick also held that plaintiff’s medical damages would be limited to those for which he could supply documentation.

Both parties’ duty to confer:  Sedwick clarified what the Local Rule 37.1(a) duty means to him:

That local rule is meant to require the lawyers talk to one another in person — face to face when, as here, they are in the same community — in a sincere and civil effort to resolve discovery disputes and to document that in a single document, a certificate.  Had the court’s trial schedule not delayed the resolution of the pending motions so long, the court might have considered denying both motions for failure to provide a simple certificate averring that the lawyers had actually discussed all the discovery issues face to face.  However, in light of the fact that swords have been figuratively drawn, the motions fully briefed, and by digging through the various exhibits the court has found evidence of at least one face-to-face meeting, the court concludes that requiring a further effort at resolution by consensus would achieve only delay.  The court will treat the evidence of the parties’ efforts to confer, which is in the record, [] as sufficient to warrant consideration of both motions.  Both lawywers are warned that in the future, the court will expect them to provide the necessary information in a single certificate that makes clear they have lived up to their duty to confer.

(bold in orig.)

Urich v. Fraize, 2008 WL 801970 (D.Alaska Mar. 24, 2008)

Darryl L. Jones represents the plaintiff.  Joyce Weaver Johnson of the Anchorage Municipal Attorney’s Office represents the police officer and the city.